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 the United States on the use of the text. 
 
 http://www.archive.org/details/cu31924018849970 
 
COIIEITAEIES 
 
 ON THE LAW OF 
 
 PROMISSOHY NQTES, 
 
 GUARANTIES OF NOTES, 
 
 AND 
 
 CHECKS ON BANKS AND BANKEES. 
 
 OCCASIONAL ILLUSTRATIONS FROM THE COMMERCIAL LAW OE THE NATIONS 
 OF CONTINENTAL EUROPE. 
 
 By JOSEPH STOEY, LL.D., 
 
 ONB OF THB JUSTICES OF THE SUFREUE CODRT OF THE UNITED STATES^ 
 AND DANE PBOFBSSOB OF LAW IN HARTABD UNITERSIIT. 
 
 " Item in hta contractibus alter alter! obligator de eo, quod alterum alter! ex bono et eequo 
 
 praestare oportet." — Dig., Lib 44, tit. 7, 1. 2, $ 8. 
 ' Tarn rigida istius obligatioDis persequutio est iuventa, ut MercatoreB tanto tutius fidem aliorum 
 
 eequi posseut." — Ueineoo., De Camb., cap. 5, § 1* 
 
 SIXTH EDITION.. 
 
 BOSTON: 
 LITTLE, BEOWN, AND COMPANY. 
 
 1868. • 
 
ISntered according'to Act of Congress, in the year 1859, by 
 
 WILLIAM W. BTOKY, 
 
 in the Clerk's Office of the District Court of the District of Masaachosetts. 
 
 Entered according to Act of Congress, in the year 1868, by 
 LITTLE, BROWN, AND COMPANY, 
 ^ in the Clerk's Office of the District Court of the District of JVlassachusetts. 
 
 
 University Press : Welch, Bigelow, & Co., 
 
 Cambridge. 
 
TO THE HONORABLE. 
 
 THOMAS H. PERKINS. 
 
 Sir, 
 
 It has long been my intention to ask your permission 
 to dedicate some «ne of my works on Commercial Law to 
 you ; and I know of no one which could be more appro- 
 priate for such a purpose than these Commentaries on the 
 Law of Promissory Nol^s. ffighly as I prize your per- 
 sonal friendship and private character, I should be sorry 
 to have this dedication deemed a mere acknowledgment, 
 on my part^ of their intrinsic worth. I rather desire, that 
 it should be deemed a tribute of respect to your public 
 character, to your noble charities, and to your steadfast 
 and elevated principles of action. You justly stand at 
 the head of our commercial community; and you have 
 achieved this enviable distinction by a life of successful 
 enterprise, in which one knows not which most to praise, 
 the skill, and intelligence, and integrity which have de- 
 served that success, or the liberal spirit and unostenta- 
 tious hospitality which have constantly been its accompani- 
 ments. I trust that you have many years yet left to 
 enjoy the satisfactipns and pleasures of such a life, admit- 
 ting of such a retrospect. No one beyond the circle of 
 your, immediate family cherishes that hope with more ear- 
 nestness than myself, being 
 
 With the highest respect, most truly 
 
 Your obliged servant, 
 
 JOSEPH STORY. 
 Cambridge, June, 1845, 
 
PREFACE 
 
 TO THE SIXTH EDITION. 
 
 •V 
 
 In this edition the cases since the fifth edition have been 
 examined, and added to the notes in the margin, A few 
 new sections have been added to the text, and about six 
 hundred new cases dlted in the margin. The whole is 
 made to give the practitioner a view of the law as held 
 in the latest cases. 
 
 THE EDITOR. 
 
 March 20, 1868. 
 
PREFACE. 
 
 In pursuance of the plan which was announced in the 
 Preface to my work on Bills of Exchange, the present 
 treatise on Promissory Notes is now presented to the pub- 
 lic. In the preparation of it, I have been fully convinced 
 of the great utility and importance, in a professional as 
 well as practical view, of separating the doctrines re- 
 specting Bills of Exchange from those which belong to 
 Promissory Notes. Many of the topics which are neces- 
 sary to be examined and discussed are, indeed, common 
 to both subjects, and might, therefore, seem fit to be 
 brought together in a single treatise. But upon a closer 
 survey it will be found, that there are many peculiar doc- 
 trines and principles belonging to each, and many diversi- 
 ties in the application of those doctrines and principles to 
 the business and exigencies of commercial life. The for- 
 mulary, in which many of the propositions, common to 
 each, are to be laid down, rarely admits of being enun- 
 ciated precisely in the same words, or with the same legal 
 effect ; and not unfrequently the prof ositions themselves 
 are required to be stated and illustrated with qualifications 
 and limitations in respect to the one, which are either in- 
 correct or defective in respect to the other. The' obliga- 
 tions of the drawer of a Bill, and those of the maker of a 
 Note, are exceedingly different in their nature and extent. 
 
Till PREFACE. 
 
 And although it is often said, that the maker of a Note 
 stands in the same predicament as the acceptor of a Bill; 
 and that the indorser of a Note stands in the same char- 
 acter as the drawer of a Bill ; yet these propositions are 
 to be received sub , modo, and with various qualifications. 
 They rather establish a general analogy between them, 
 than an absolute identity of legal position and obligation. 
 The acceptor of a Bill is always presumed to warrant the 
 genuineness of the signature of the drawer ; but the make^r 
 of a Note does not warrant the genuineness of the signa- 
 ture of day of the indorsers thereon. The drawer of a Bill 
 is never supposed to warrant the genuineness of the signa- 
 ture of any of the indorsers, pay, not of the payee. On 
 the other hand, the indorser of a Note warrants the gen- 
 uineness of the signatures of all the antecedent parties on 
 the Note. But it is in the more minute details and rami- 
 fication of the doctrines, applicable to each, that we chiefly 
 perceive the importance, nay, the necessity, of distinguish- 
 ing carefully between them. The subject of protest and 
 damages, in cases of Bills of Exchange, finds no place in 
 the consideration of Promissory Notes ; and even the sub- 
 ject of notice, which is common'to both, may be despatched 
 in a few pages in cases of Bills of Exchange, but is suscepti- 
 ble of almost endless varieties of detail in cases of Promis- 
 sory Notes. In the French and Foreign law, the subject 
 of Bills of Exchange is commonly discussed at great length, 
 and generally is extended through a bulky volume ; while 
 the subject of Promissory Notes is condensed into a few 
 pages, at once meagre and unsatisfactory. The Commer- 
 cial Code of France embraces seventy-six articles on the 
 subject of Bills of Exchange ; but it treats of Promissory 
 
PREFACE. IX 
 
 Notes in two brief and vague articles only. How different 
 is this in the law of England. The works of the most 
 distinguished authors of England treat of Bills of Ex- 
 change 'in a comparatively concise and general way, while 
 Promissory Notes occupy a large space, and are followed 
 out into the most minute practical results. It may be af- 
 firmed, with some confidence, that, in the Courts of Justice 
 in England, for every single suit litigated upon a Bill of 
 Exchange, twenty will probably be found upon Promissory 
 Notes, — so vast is the circulation, and so extensive and 
 complicated are the transactions growing out of the latter, 
 which require almost a daily modification of the law to 
 adapt it to the new exigencies of business. Hence it is, 
 that Westminster Hall has, during the last century, be- 
 come the great repository of the law on this subject ; and 
 the decisions there made have acquired a commanding 
 influence and interest throughout the commercial world. 
 
 In no one branch of the law is more fulness in the 
 statement and exposition of principles required, than in 
 that of Promissory Notes. I have endeavoi-ed, therefore, 
 to bring within the text all the leading principles, with 
 such illustrations as might serve to explain and confirm 
 them. In the notes, many of the authorities will be found 
 collected, with such auxiliary comments, and citations from 
 the opinions of learned Judges and Jurists, as might give 
 more free and ample information than the text could 
 properly supply. I have borrowed largely from the able 
 writers who have preceded me, and have also borrowed 
 some materials from my own former works upon kindred 
 subjects. The latter course was indispensable in order to 
 make the present work, as is its design, entirely inde- 
 
X PREFACE. 
 
 pendent in its structure and completeness from them. 
 Upon » close examination, however, the learned reader 
 will find, that few passages have heen introduced into the 
 text which did not require some alterations to adapt them 
 to the purposes of the present Commentaries ; and they 
 have never been introduced for the mere purpose of dis- 
 play, or of swelling the volume. 
 
 . The subjects of the Guaranties of Notes and of Checks 
 have been added, as becoming daily of more use and sig- 
 nificaijce in commercial dealings. The latter is treated 
 briefly, as, indeed, few doctrines of a peculiar nature be- 
 long to it. The former has been discussed more at large ; 
 and the materials thereof are mainly drawn from Ameri- 
 can jurisprudence, since in England the contract of guar- 
 anty, as applied to Notes, has not, as yet, furnished many 
 occasions for litigation or decision. 
 
 I cannot better conclude this preface than by a quota- 
 tion from the Commentaries of my venerable friend, Mr. 
 Chancellor Kent, himself at once a fine model of the judi- 
 cial chai'acter, and an illustrious example of what genius, 
 and learning, and devotion to all the branches of juris- 
 prudence, can accomplish. " The law concerning nego- 
 tiable paper," says he, " has at length become a science, 
 which can be studied with infinite advantage in the vari- 
 ous codes, treatises, and judicial decisions ; for in them 
 every possible view of the doctrine, in all its branches, 
 has been considered, its rules established, and its limita- 
 tions accurately defined." 
 
 Cambridgb, near Boston, 
 June, 1845. 
 
CONTENTS. 
 
 I 
 
 PAGB 
 
 Index to Cases Cited xiii 
 
 CHAPTER I. 
 
 SECTION 
 
 Nature and Requisites of Promissory Notes ..... 1-59 
 
 CHAPTER 11. 
 
 Competency and Capacity of Parties to Promissory Notes 60 - 102 
 
 CHAPTER III. 
 
 Rights, Duties, and Obligations of Parties to Promissory 
 
 Notes 103-115 
 
 CHAPTER IV. 
 
 Riglits, Duties, and Obligations of Parties, on Transfers 116-180 
 
 CHAPTER V. 
 
 Promissory Notes, — Consideration, what is sufficient, 
 
 and between whom necessary 181-197 
 
 CHAPTER VI. 
 
 Presentment of Promissory Notes for Payment . . . 198-256 
 
XU CONTENTS. 
 
 CHAPTER VII. 
 
 Excuses for Non-presentment of Promissory Notes . . 257-296 
 
 CHAPTEE VIII. 
 
 Notices and other Proceedings on the Dishonor of Prom- 
 issory Notes 297 - 3.69 
 
 CHAPTER IX. 
 
 Matters of Dsfence and Discharge of Parties to Promis- 
 sory Notes 370 - 453 
 
 CHAPTER X. 
 Of the Guaranty of Promissory Notes 454-486 
 
 CHAPTER XL 
 Checks on Banks and Bankers 487 - 503 
 
 PAGE 
 
 INDEX' 707 
 
INDEX TO CASES CITED. 
 
 The References are to the Secttara. 
 
 
 A. 
 
 
 • 
 
 Section 
 
 
 Section 
 
 Allen ». Rightmere 59, 
 
 147, 468, 
 
 Abat V. Holmes 
 
 408, 423 
 
 471,472 
 
 , 476, 480 
 
 V. Kion 
 
 334 
 
 V. Deming 
 
 48 a 
 
 Abbey v. Chace 
 
 71 
 
 V. Wilkins 
 
 88 
 
 Abbot V. Bailey 
 
 86 
 
 Allnutt V. Ashenden 
 
 458 
 
 Abrahams v. Skinner 
 
 122 
 
 Almy V. Reid 
 
 111 
 
 Absolom 0. Marks 
 
 36 a 
 
 Alves V. Hudgson 22 
 
 ,156, 158 
 
 Acheson v. Fountain 
 
 139, 142 
 
 Ambrose v. Hopwood 
 
 227 
 
 Ackland v. Pearce 
 
 192, 193 
 
 American Bank v. Doolittle 408, 425 
 
 Adams v. Cordis 
 
 399 
 
 Ames V. Foster 
 
 88 a 
 
 V. Gay 
 
 48 a 
 
 Ammidown v. Woodman 
 
 211, 226 
 
 V. Gregg 
 
 419 
 
 Amory v. Meryweather 
 
 190 
 
 «. Howell 
 
 48 a 
 
 Amoskeag Bank v. Moore 
 
 272 
 
 V. Hardy 
 
 473,476 
 
 Arnsbaugh v. Gearhart 
 
 59, 468 
 
 V. Jones 
 
 482 
 
 Ancher v. Bank of Englanc 
 
 142, 143 
 
 V. Leland 208 
 
 236, 316 
 
 Anderson v. Busteed 
 
 491 
 
 V. Lindsell 
 
 430 
 
 V. Cleveland 
 
 201,419 
 
 V. Oakes 
 
 246 
 
 V. Drake 
 
 236, 265 
 
 V. Otterbrook 
 
 220 
 
 V. Robson 
 
 110 
 
 V. Smith 
 
 138 
 
 Anderton v. Beck 
 
 203, 252 
 
 V. Wright 
 
 298, 315 
 
 Andrews v. Boyd 148, 
 
 281, 357 
 
 Aertson v. Cage 
 
 378 
 
 V. Chadbourne 
 
 120 
 
 Agan V. MeManus 268 
 
 278, 309 
 
 V. Franklin 
 
 27, 28 
 
 A dridge v. Turner 
 
 133 
 
 V. His Creditors 
 
 155 
 
 V. Branch Bank 
 
 48 
 
 V. Pond 155-157. 165- 
 
 Alexander u. Burehfield 
 
 493 
 
 
 167, 178 
 
 V. Bryant 
 
 119 
 
 Ansell V. Baker 
 
 409 
 
 V. McKenzie 
 
 67 
 
 Anson v. Bailey 
 
 276, 346 
 
 V. Swanu 
 
 325, 327 
 
 Anthon v. Fisher- 
 
 96 
 
 V. Thomas 
 
 22 
 
 Antoine v. Morshead 
 
 94, 96 
 
 Alcock V. Hopkins 
 
 399 
 
 Appleby v. Biddolph 
 
 22, 27 
 
 Allaire v. Hartshorne 
 
 187,190, 
 
 Arbouin v. Anderson 109, 
 
 113, 178, 
 
 
 191, 195 
 
 
 J96, 197 
 
 Allen V. Avery 226, 
 
 243, 324 
 
 Arlington v. Hinds 
 
 115 6 
 
 V. Edwardson 
 
 315 
 
 Armfield v. Tate 
 
 78 
 
 V. Furbish 
 
 148 
 
 Armistead v. Armistead 
 
 228, 230 
 
 V. Keeves 
 
 490 
 
 Armitt v. Breame 
 
 45 
 
 V. Mawson 
 
 16 
 
 Armstrong v. Christiani 
 
 •352 
 
XIV 
 
 INDEX TO CASES CITED. 
 
 
 Section 
 
 Armstrong v. Percy 
 
 262 
 
 V. Thurston 
 
 354 
 
 Arnold v. Dresser 
 
 239, 275 
 
 V. Sprague 
 
 104 
 
 V. Redfern 
 
 167 
 
 V. Revolt 87, 124, 306 
 
 V. RiclimO'nd Iron Works 101 
 
 V. Rock River Co. 17 
 
 V. The Mayor, &c. of Poole 74 
 
 Arundel Bank v. Goble 415 
 
 Ashby V. Ashby 1 2 
 
 Ashton 0. Sproul 314 
 
 Aspinwall v. Meyer 74, 381 
 
 Astor !'. Benn 339 
 
 Atkins V. Owens 402 
 
 Atkinson v. Brooks W5, 196 
 
 V. Manks 17 
 
 V. Ritchie 259 
 
 Attorney-General y. Life and 
 
 Fire Jns. Co. 74 
 
 Attwood v. GrifBn 37,138 
 
 Aubert v. Walsh 106 
 
 Auble V. Mason ' 88 a 
 
 Austin V. Boyd 58, 476 
 
 t'. Burns 17 
 
 Averald ». Watson - 408 
 
 Averill v. Hedge 430 
 
 V. Lyman 425 
 
 Avery v. Pixley 213 
 
 V. Stewart 220 
 
 Awde 17. Dixon 138, 188 
 
 Ayer v. Hutchins 190, 197 
 
 Aylett V. Ashton 85 
 
 Aymar v. Sheldon 339 
 
 Ayrey v. Davenport 422 
 
 V. Fearnsides 18, 20 
 
 B. 
 
 Babcock v. Beman 
 
 
 127 
 
 V. Bryant 
 
 
 460 
 
 Bachellor v. Priest 
 
 195 
 
 246 
 
 Backhouse v. Harrison 
 
 197 
 
 382 
 
 Backus 1). McCoy . 
 
 
 264 
 
 V. Sliipherd 
 
 271 
 
 272 
 
 Bacon V. Dyer 
 
 
 228 
 
 Eadnall v. Samuel 
 
 415 
 
 416 
 
 Bailey v. Bid well 
 
 
 196 
 
 w. Freeman 
 
 133,459 
 
 469 
 
 V. Hazard 
 
 
 480 
 
 V. Porter 
 
 
 351 
 
 Bain i;. Wilson 
 
 
 72 
 
 Bakw V. Birch 
 
 
 287 
 
 I Section 
 
 Baker v. Black 476 
 
 V. Bonesteel 119 
 
 V. Briggs 58, 438, 467, 468, 
 
 473, 476 
 
 V. Chambers 69 
 
 V. Collins • 192 
 
 V. Flower 516 
 
 V. Gallagher 362 
 
 V. Lovett 77 
 
 V. Norris 344 
 
 V. Scate 476 
 
 V. Wheaton 111, 168, 243 
 
 Baldwin v. Richardson 335 
 
 Ball v.- Greund 268, 272, 288 
 
 Ballirigalls v. Gloster 121, 128, 480 
 
 Ballon V. Talbot 69, 71 
 
 Bancroft v. Hall 226, 312, 314, 315, 
 
 319, 324, 338 
 
 Bangor Bank v. Treat 34, 57 
 
 Bangs V. Mosher 413, 485 
 
 Bank (Commercial) v. Clark 360 
 
 (Massachusetts) v. Oliver 345 
 
 (Mechanics' & Farmers') v. 
 
 Schuyler 10, 45 
 
 (Merchants') u. Spicer 34, 121 
 
 (Oxford) V. Haynes 59 
 
 (Springfield) v. Merrick 17 
 
 of Alexandria v. Swann 3^5, 
 
 331 
 
 of America v. Woodworth 232 
 
 of Bengal v. Fagan 197 
 
 of Chenango v. Iloot 239, 255, 
 
 308, 327, 329 
 
 of Columbia v. Lawrence 235, 
 
 312, 313, 320, 322-325, 328, 
 
 338, 340, 341,- 343 
 
 of Columbia v. Patterson's 
 
 Administrator 74 
 
 of Cooperstown v. Woods 349^ 
 of England v. Newman 118 
 of Geneva v. Howlitt 343 
 
 of Ireland ■/. Beresford 194, 
 423 
 of Louisiana v. Tournel- 
 
 leon 343 
 
 of Manchester!). Slason 115 h, 
 127, 129, 343 
 V. Mayberry 48 a 
 
 of Missouri v. Phillips 188 
 
 of Natchez v. King 325 
 
 of North America v. Mc- 
 
 Knight 297 
 
 of Orleans v. Smith 326 
 
 of Pittsburg V. Neal 10, 197 
 of Rochester v. Bowen 73 
 
INDEX TO CASES CITED. 
 
 XV 
 
 Section 
 
 Bank of Eoohester.w. Gould 349 
 of the State v. Bank of 
 
 Cape Fear 227 
 
 of Salina u. Babcock 195 
 
 of Sandusky v. Seoville 195 
 of the Metropolis «. New 
 
 England Bank 186 
 
 of Troy v. Topping 64, 186 
 
 of U. States v. Carneal 234, 
 
 243, 319, 343, 
 
 348, 354 
 
 V. Corcoran 313, 
 
 322 
 
 V. Dandridge 74 
 
 .' V. Davis 326 
 
 I". Donally 155 
 
 V. Dunn 148 
 
 V. Hatch 312, 313, 
 
 413,415, 422, 
 
 423 
 
 V. Merle 324 
 
 V. U. S. 246, 452 
 
 V. Smith 228 
 
 V. Lyman 1 1 5 J 
 
 of Utica V. Bender 335, 344, 
 
 347 
 
 V. Davidson 316, 336, 
 
 344 
 
 V. DeMott 316, 335, 
 
 343 - 345 
 
 V. Phillip 316, 335, 
 
 344 
 
 V. Smith 126, 247, 
 
 297, 343 
 
 of Washington v. Triplett 169, 
 
 224 
 
 Banks V. Eastin 126, 246 
 
 Barber v. Backhouse 187,190 
 
 V. Hodgson- 259, 260 
 
 V. Mechanics' Fire Ins; Co. 69 
 
 V. Parker 271 
 
 Barbour v. Bayon 224 
 
 Barclay v. Bailey 226 
 
 Barden v. Keverberg 86 
 
 Barkmyer v. Whiteford 321 
 
 Barker v. Mechanics' Ins. Co. 69, 74 
 
 V. Hodson 259 
 
 V. Parker 271 
 
 Barlow v. Bishop 87, 124, 306 
 
 V. Broadhurst 20 
 
 V. Congregational Soe. 69 
 
 Barnard v. Planters' Bank 297 
 
 V. Graves 389 
 
 tf. Pomfret 64 
 
 Barnes v. Bartlett 265 
 
 
 Section 
 
 Barnes v. Vaughan 
 
 226, 235 
 
 Barnett v. Brandao 
 
 186, 195 
 
 V. Maule 
 
 423 
 
 u. Smith 
 
 489 
 
 Bamsley v. Baldwin 
 
 27 
 
 Barnwell v. Mitchell 
 
 316, 335 
 
 Barough v. White 
 
 178, 190,491 
 
 Barret v. Evans 
 
 312 
 
 Barrows v. Lane 
 
 467 
 
 Barton v. Baker 
 
 241 
 
 V. Beer 
 
 185 
 
 Bartrum v. Coddy 
 
 180, 281 
 
 Bartsch v. Atwater 
 
 168, 390 
 
 Bass V. Bandall 
 
 183 
 
 Bateman v. Joseph 
 
 316, 335 
 
 Bates V. Butler 
 
 41, 189 
 
 V. Coit 
 
 362 
 
 Bathe v. Taylor 
 
 37 a 
 
 Baumgarden v. Beeves 238 
 
 Baxter v. Duren 118 
 
 V. Lord Portsmouth 101 
 
 u. Little 178,190 
 
 V. Stewart 17 
 
 Bay V. Coddington 195 
 
 </. Cook 71 
 
 V. Gunn 78 
 
 Bayard f. Shunk 119, 389 
 
 Baylies v. Dineley 77 
 
 Bayon v. Vavassour 159 ' 
 
 Beale v. Parrish 302 
 
 Beals V. Peck 308, 310, 341 
 
 Bean v. Briggs 12 
 
 Beard o. Webb 85 
 
 Beardesley v, Baldwin 22 
 
 Beardsley v. Wardner 419 
 
 Beardmare v. Cruttenden 427 
 
 Beauchamp v. Cash 349, 351 
 
 Beaumont v. Greathead 422 
 
 1/. Parry 178 
 
 V. Reeve 181, 185, 189 
 
 Beavan v. McDonell 101 
 
 Beckley v. Cannon 75 
 
 Beck V. Eobley 180 
 
 Beckwith v. Angell 459, 460, 474, 
 
 476,477,480 
 
 V. Carroll 197 
 
 V. Sibley 411 
 
 V. Smith 347 
 
 Bedford v. Deakin 416, 425 
 
 Beebe v. Brooks , 208 
 
 V. West Branch Bank 15 a, 
 
 115,419 
 
 Beeching v. Gower 231, 338, 500 
 
 Bijlcher v. Smith 122, 123, 484' 
 
 Belden v. Lamb 316 
 
XVI 
 
 INDEX TO CASES CITED. 
 
 
 Section 
 
 Bell V. Frankis 
 
 358 
 
 V. Gardiner 
 
 361 
 
 u.Ingestre 
 
 120 a 
 
 V. Quinn 
 
 189 
 
 Bellamy v. Majoribanks 
 
 488 a 
 
 Bellasis v. Hestor 
 
 211 
 
 Bellievre v. Bird 
 
 235 
 
 Belmont Bank v. Patterson 237, 238, 
 
 313 
 
 V. Hoge 197 
 
 Bendter v. Fromberger 264 
 
 Benneson o. Thayer 88 o 
 
 Bennett v. Farnell 39, 132 
 
 V. Jenkins 264 
 
 V. Maule 423 
 
 V. Pound 122 a 
 
 Bennington v. Dinsmore 33 
 
 Benthall v. Judkins 474 
 
 Berkshire Bank v. Jones 148, 234, 
 
 243, 271, 272 
 
 Bernard v. Barry 171 
 
 V. Graves 389 
 
 Berrill v. Smith 48 a 
 
 Berry v. Alderman 191, 196, 197 
 
 V. Usher 444 
 
 Bertrand v. Barkman 195 
 
 Besancon v. Shirley 18 
 
 Bethune v. M'Crary 191, 192 
 
 ■Betts V. Kimpton 88 
 
 Bevan v. Eldridge 225 a 
 
 Beveridge v. Burgis 335 
 
 Beverly v. The Lincoln Gas 
 
 Light anil Coke Company 74 
 
 Bewley v. Whiteford 467 
 
 Bickford .,. Gibbs 468, 469 
 
 Bigelow V. Cotton 476 
 
 V. Stilphens 408 a 
 
 0. Willson 211 
 
 Bignold V. Waterhouse 308 
 
 Bilbie v. Lumley 362 
 
 Bill B.Porter 104 
 
 Birchard v. Bartlet 58 
 
 Birchback v. Wilkins 128 
 
 Birlebauk v. Wilkins 128 
 
 Bishop V. Hayward 151, 478, 
 
 480 
 Bishop of Derry v. Chambers 41, 51 
 V. Eowe 405 
 
 Bissell V. Morgan 196 
 
 Bizzell V. Williams 18 
 
 Black V. Zaeharie 405 
 
 Blackie v. Pidding 451 
 
 Blaekman v. Leonard 320 
 
 Blackwell v. Justice of Lawrence 
 County 264 
 
 Sectipn 
 
 Blakely v. Grant }38, 147, 148, 149, 
 
 236, 316, 335, 359 
 
 Blanchard v. Billiard 211 
 
 V. Russell 157, 172 
 
 V. Stearns 186 
 
 V. Stevens 187, 195 
 
 Blackenhagen v. Blundell 33 
 
 Bland v. Ryan 142 
 
 Bleeker o. Hyde 282 
 
 Blesard v. Hirst 359, 361, 362 
 
 Block V. Bell 16 
 
 V. Walker 6 
 
 Blodgett V. Durgen 274, 316 
 
 V. Jackson 121, 132 
 
 Blogg V. Pinkers 184, 187 
 
 Blung V. Walker 104 
 
 Boalt V. Brown 408 a 
 
 Bockee v. Naeller 122 a 
 
 Boddington v. Schlencker 493 
 
 Boden v. Wright 187 
 
 Boehm u. Sterling 178,180,488- 
 
 491, 493, 494 
 
 Boggs V. Lancaster Bank 190, 195 
 
 Holies V. Stearns 121 
 
 Bolton V. Dugdale 20 
 
 V. Puller . 402 
 
 Bonafous v. Walker 265 
 
 Bonar v. Mitchell 297 
 
 Bond V. Farnham 281, 282, 286, 357 
 
 V. Fitzpatrick 178 
 
 V. Warden 493 
 
 Boiidurant o. Bladen 121 
 
 Booth V. Franklin 231 
 
 Bogue V. Melick 476 
 
 Borradaile v. Lowe 274, 27S, 362 
 
 Bosanquet v. Dudman 178, 186, 195 
 
 Bosley v. M'AUister 48 a 
 
 Boston Bank v. Hodges 225 a 
 
 Boultbeew. Stubbs 252,286,426, 427 
 
 Boulton V. Welsh 350, 351, 353, 354 
 
 Bowcher v. Lawson 158 
 
 Bowen v. Buck 189 
 
 V. Morris 69 
 
 V. Newell 490 
 
 Bowers v. Briggs 408 a 
 
 V. Hurd 184 
 
 Bowes V. Howe 208, 500 
 
 Bowie V. Duvall 228 
 
 Bowker v. Childs 426 
 
 Bowles V. Turner 88 a 
 
 Bowling V. Arthur 298, 312 
 
 V. Harrison 312, 314, 327 
 
 Bo-wness, Ex parte 498 
 
 Bowyer v. Bampton 192, 193 
 
 Boyce v. Edwards ' 482 
 
INDEX TO CASES CITED. 
 
 XVll 
 
 Section 
 
 Boyd p. Brotherton 37 a 
 
 V. Cleveland 271, 275, 278, 
 
 362, 364 
 
 0. City Savings Bank 310, 345 
 
 V. Plumb 73 
 
 Bracey v. Carter 157, 187 
 
 Brackett o. Norton 165 
 
 Bradford v. Corey 146 
 
 P. Farrand 169 
 
 V. Hubbard 413, 422 
 
 Bradlee v. The Boston Glass 
 
 Manufactory 70 
 
 • Bradley o. Davis 349 
 
 V. Heath 64. 
 
 Brady i\ Chandler 12 
 
 Bragg B. Greenleaf 126 
 
 Braham v. Bubb 22 
 
 . Braithwaite v, Gardiner 80 
 
 Bramah v. Boberts 186, 191, 195 
 
 Braman v. Hess 193 
 
 Bramhatl v. Becket 195 
 
 Brandon c. Nesbitt 96 
 
 Brandt v. Foster 1 1 1 
 
 Bray c. Hadwea 320, 321, 324, 325, 
 
 331 
 V. Maifson 417 
 
 Brealey v. Andrews 362 
 
 Breed v. Hillhouse 275, 480 
 
 Bremen o. Thayer 104 
 
 Brent ». Bank of Metropolis 314 
 V. Ervin 111 
 
 Brent's Ex'rs v. Bank of Me- 
 tropolis 232, 234, 235 
 Brentzer v. Wightman 207, 225 
 Brett V. Levett 287 
 V. Marston 408 a, 476 
 Brewster v. McCardel 48 
 •'.Silence 457,458,465, 
 468,470, 472,478 
 Brickett v. Spaulding 232 
 Bridge ». Sherborne 224 
 Bridges ». Berry 104,201,203,405 
 iBrigham v. Marean 126 
 V. Potter 192 
 Bright V. Carpenter 476 
 Brighton Bank v. Phllbrick 316 
 Brinkley p. Going 452 
 Brisbane p. Pratt 381 
 Bristol p. Sprague 195 
 p. Warner 27, 41, 181, 182 
 p. Warren 41 
 Britten o. Webb 151, 362 
 JBrockway p. Allen 69 
 Bcomage v. Lloyd 120 a 
 Brooks V. Elkins 12, 14 
 b 
 
 Section 
 
 Brooks p. Mitchell 190, 491 
 
 0. Stuart 425 
 
 V. Wiggengton 88 a 
 Broughton p. Manchester Water 
 
 Works Co. 74 
 
 Brouwer p. Appleby 186 
 Brown p. Butchers' & Drovers' 
 
 Bank 11, 121 
 
 p. Bunn 171 
 
 V. Crouise 104 
 
 P.Davis 178,190,488,489 
 
 p, De Winton 12, 16 
 
 , Ex parte 491 
 
 c. Ferguson 325 
 
 p. Gilman 1, 14 
 
 p. Harradeh 6 
 
 p. Judrell 101 
 
 p. Kewley 117 
 
 p. King 181 
 
 p. Laiigley 291 
 
 p. Lusk 224, 490 
 
 p. Maffey 288, 292 
 
 p. Montgomery 118 
 
 p. Newell 491 
 
 p. Noyes 228, 229 
 
 p. Taber 197 
 
 p. Thornton 158 
 
 P. Turner 190, 325 
 
 p. Williams 423 
 
 Browne p. Carr 413 
 
 Brownell p. Bonney 359, 364 
 
 V. Winnie 408 a 
 
 Browning p. Kinnear 316, 335 
 
 Brownson p. Appleby 186 
 
 Bruce p. Bruce 118, 135 
 
 V. Little 203 
 
 p. Westcott 12, 37 a 
 
 Bruen p. Mai-quand 408, 419 
 
 Brush p. Reeves 132 
 
 p. Scribner 186, 195, 197 
 
 Bryant p. Eastman 121, 473 
 
 p. Couillard 178 
 
 Bucher p. Lawson 155 
 
 Buck p. Merrick 33 
 
 Buckley v. Bentley 272 
 
 p. Cannon 76 
 
 , Ex parte 57, 69 
 
 Buckmaster p. Grundy 264 
 
 Bullard p. Bell 501 
 
 p. Randall 489 
 
 Buller p. Crips 4, 6, 26 
 
 Bullet p. Bank of Pennsylvania 111, 
 
 448 
 
 Bullitt p. Scribner fi 
 
 Bunker v. Athean 22 
 
XVIU 
 
 INDEX TO CASES CITED. 
 
 Section 
 
 Burbank v. Beach 312 
 
 Burbridge v. Manners 180, 225 a, 
 
 320, 327, 384 
 
 Burchell », Slocock 3, 9 
 
 Burchfield v. Moore 408 a 
 
 Burckmyer v. Whiteford 321, 381 
 
 Burdiek v. Green 104, 404, 438 
 
 Burgess u. Lilly 189 
 
 V. Vreeland 825 
 
 Burghart v. Hall 77 
 
 Burke v. Allen 101 
 
 V. McKay 297 
 
 Burnham v. Allen 207 
 
 V. Webster 366 
 
 Burmester v. Baron 316 
 
 Burrill v. Smith " 80, 118, 135, 253, 
 
 378, 380, 413, 427, 428 
 
 Burrough w. Moss 87,124,126,178, 
 
 190, 306 
 
 Burrows v. Hannegan 235, 312, 339, 
 
 357 
 V. Jemino 156, 168 
 
 Bush V. Livingston 1 93 
 
 Bussard v. Levering 220, 225 a, 320, 
 324, 327 
 Butler V. Kimball 225 a 
 
 Butts V. Dean 438 
 
 Buxton V. Jones 313 
 
 By ram v. Hunter 363 
 
 C. 
 
 Cabell V. Vaughn 225 a 
 
 Cabot Bank v. Morton 118 
 
 V. Russell 342 
 
 V. Warner 312, 349 
 
 Cady V. Shepard 151 
 
 Caldwell V. Cassidy 228 
 
 V. Sawyer 88 a 
 
 Callen ». Gunter 190 
 
 Calliham v. Tanner 413, 420 
 
 CJallow V. Lawrence 180 
 
 Camden v. McKay 476 
 
 Campbell v. Butler 473, 476, 477 
 
 V. Hudgsou 24 
 
 V. Humphreys 452 
 
 V. Rusch 178 
 
 V. Varney 278 
 
 Camidge v. AUenby 117, 118, 119, 
 
 201, 203, 389, 493, 500, 502 
 
 Canal Bank v. Bank of Albany 361, 
 
 379, 380 
 
 Canfield v. Vaughan 147, 149, 471 
 
 V. Ives 404 
 
 
 Section 
 
 Cannam v. Farmer 
 
 85 
 
 Cannon v. Gibbs 
 
 460 
 
 Carleton v. Brooks 
 
 17 
 
 Carley». Vance 
 
 228 
 
 Carlisle v. Wishart 
 
 193, 195 
 
 Carlton v. Bailey 
 
 190 
 
 Carll V. Brown 
 
 190, 207 
 
 Carlos V. Fancourt 
 
 22, 25 
 
 Carlon v. Kinealy 
 
 28 
 
 Carmena v. Bank of Louisiana 343 
 
 Carnegie v. Morrison 408, 425, 482 
 
 Carpenter v. Oakes 476 
 
 Carrol v. Blencow 86 
 
 Carroll u. Uptoh 171,236,316 
 
 r. Weld 473,476 
 
 Carruth v. Walker 298 
 
 Carruthers v. West 187 
 
 Carson v. Bank of Alabama 320 
 
 Carstairs v. RoUeston 423 
 
 Cart V. Rees 88 
 
 Carter v. Burley 325, 327 
 
 V. McClintock 9 
 
 V. Saunders 63 
 
 V. Union Bank 314 
 
 Carver t). Hayes 12 
 
 V. Warren 467, 468 
 
 Carvick v. Vickery 125, 289, 379 
 
 Cary v. Bancroft 437 
 
 V. Gooding ■ 444 
 
 Carr v. Hinchliff 1 78 
 
 W.Rowland 476 
 
 V. Shaw 173 
 
 Case V. Mechanics' Bank 196 
 
 V. Semple 88 a 
 
 Cash V. Kennion 166, 397 
 
 Castle w. Burditt 211,212 
 
 Caswell V. Coare 262, 264 
 
 V. Wendell 
 
 Catlin V. Gunter 190 
 
 V. Hanson . 190 
 
 V. Harrison 196 
 
 Catskill Bank v. State 348, 844 
 
 V. Messenger 409 
 
 Caudell v. Shaw 85 
 
 Caunt V. Thompson 287, 295, 348, 
 
 367 
 Cayuga County Bank v. Bennett 320, 
 
 322 
 
 V. Dill 275 
 
 V. Hunt 241, 
 
 256 
 
 V. Warden 849, 
 
 850, 854 
 
 Cazet V. Field 192 
 
 Cecil V. Mix 476 
 
INDEX TO CASES CITED. 
 
 XIX 
 
 ^tion 
 
 Cecil V. Plaistow 427 
 
 Central Bank v. Dana 104 
 
 V. Davis 138, 148, 271, 
 
 272, 360, 380 
 
 Chadsey v. McCreery 33 
 
 Chadwick v. Allen • 9, 12 
 
 Chaffee v. Jones 58 
 
 Chalmers v. Lanion 178, 191 
 
 Chamberlain v. Hopps 45 
 
 Champion v. Plumer 33 
 
 V. Terry 106, 445, 449 
 
 Chandler v. Herrick 408, 409, 410 
 
 V. Mason 268 
 
 Chanoine v. Fowler 301, 303 
 
 Chapcott V. Curlewis 316, 334 
 
 Chapman v. Anpett 359 
 
 <;. Black 193 
 
 V. British Guiana Bank 348 
 
 V. Durant 104 
 
 V. Foster 88 a 
 
 V. Keane 302, 303 
 
 V. Lipscombe 316, 335, 345 
 
 V. Robertson 161 
 
 V. White 489 
 
 Chard v. Fox 353 
 
 Charles u. Marsden 194 
 
 Charnley v. Grundy 450 
 
 Chartres v. Cairnes 155, 168 
 
 Chateau v. Webster 309 
 
 Chaters v. Bell 139 
 
 Chaworth v. Beech 121 
 
 Cheetham v. Ward 408, 425 
 
 Chenot V. Lefere 39 
 
 Chewing v. Satewood 348 
 
 Chick V. Pilsbury 320, 321, 324, 325 
 
 Chioopee Bank u. Chapin 191 
 
 Child V. Powder Works 127 
 
 Childs V. Monins 63 
 
 V. Wyman 476 
 
 Choteau v. Merry 85 
 
 V. Webster 309, 316 
 
 Church V. Barlow 246, 325, 326 
 
 V. Clark 225 a, 226, 228 
 
 V. Imperial Gas Light and 
 
 Coke Co. 74 
 
 Chute V. Pattee 485 
 
 Citizens' Bank v. Corsan 104 
 
 City Bank v. Cutter 225 a, 297 
 
 Clapp V. Rice 476 
 
 Clandge v. Dalton 420, 423 
 
 Clark V. Blackstock 57 
 
 V. Boyd 120 a 
 
 V. Bush 408 
 
 V. Cochran 158 
 
 V. Eldridge 349, 356 
 
 Section 
 
 Clark V. Farmers' Manuf. Co. 55 
 
 V. King 17 
 
 V. Pigot 137, 142, 246 
 
 V. Pomroy 189 
 
 V. Reed 111 
 
 V. Ricker 190 
 
 V. Sigourney 120, 120 a 
 
 V. Young 404 
 
 Clarke u. Devlin 411,413,419 
 
 , In the matter of, 57, 69 
 
 V. Percival 20 
 
 u. Sharpe 316, 335, 346 
 
 Clauser v. Stone 17, 51 
 
 Claxton V. Swift 407, 409 
 
 Clay V. Crowe 450 
 V. Oakley 71, 312, 320, 322 
 
 Clayton v. Gosling 29, 51 
 
 Cleef V. Therasson 104 
 
 Clegg V. Cotton 289 
 
 V. Levy 158 
 
 Clerk I). Martin 6 
 
 !). Pigot 126,142,246 
 
 Cleveland v. Stewart 70 
 
 Clock V. Merriam 476 
 
 Clode V. Bayley 326 
 
 Closson V. Stearns 11 
 
 Clough V. Davis 48 b 
 
 Clouston V. Barbiere 476 
 
 Clowes V. Chaldecott 320 
 
 Clubb V. Huston 189 
 
 Clute V. Small 37 a 
 
 Cobb V. Doyle 192 
 
 Coburn u. Odell 181,190 
 
 Cochran v. Wheeler 180 
 Cocke V. Bank of Tennessee 310 
 
 V. Dickens 115 6 
 
 Cockell w. Gray 161 
 
 Cockerell v. Barber 391, 396 
 
 Coekrill v. Kirkpatrick 18 
 
 Cocks V. Borradaile 139 
 
 Cockshott i\ Bennett 427 
 
 Coddington v. Davis 271, 272, 297, 
 357, 364 
 
 CofBn V. Loring 224 
 Cofcgill V. American Exchange 
 
 Bank 39, 379, 490 
 
 Cole V. Blake 452 
 
 V. Jessup 246 
 
 V. Sherwood 69 
 
 Colehan v. Cooke 22, 27, 33 
 
 Coleman v. Ewing 225 a 
 
 Collins V. Butler 236, 238, 241 
 
 V. Georgia 127 
 
 V. Johnson 127 
 
 V. Makepeace 408 a 
 
XX 
 
 INDEX TO CASES CITED. 
 
 Section 
 
 Collins V. Martin 181, 191 
 
 Colkett V. Freeman 225 a 
 
 Collis V. Emett 39 
 
 CoUott V. Haigh 418, 419, 422, 423 
 
 Colman v. Sayer 211, 224 
 
 Colt V. Noble 326 
 
 Combe V. Woolf 485 
 
 Commerc'l Bank v. Cunningham 408, 
 
 418, 419, 422, 423 
 
 V. Pickering 422 
 
 of Katcfaez v. 
 
 King 324 
 
 V. Strong 313 
 
 V. Wood 128 
 
 Commonwealth v. Dana 181 
 
 V. Manley 87 
 
 I?. McKie 131 
 
 ■Comparree v. Brock way 476 
 
 Cone V. Baldwin 197 
 
 Conilans Quarry Co. v. Parker 482 
 
 Connor v. Bellamont 166 
 
 V. Clark 24, 63 
 
 V. Martin 124, 306, 375 
 
 Conroe v. Birdsall 77 
 
 Conroy ». Warren 190, 196, 489, 490, 
 
 492,493,497,498 
 
 Con^equa v. Fanning 
 
 399 
 
 V. Willings 
 
 166 
 
 Cony V. Wheelock 
 
 125 
 
 Cooch V. Goodman 
 
 70, 187 
 
 Cook V. Bradley 
 
 362 
 
 V. Darling 
 
 224 
 
 V. Litchfield 
 
 349 
 
 V. Sonthwick 
 
 476 
 
 Cooke V. French 
 
 352, 354 
 
 V. Callaway 
 
 246 
 
 Coolbroth v. Purinton 
 
 12 
 
 Cooley V. Lawrence 
 
 473 
 
 Coolidge V. Payson 
 
 195 
 
 V. Ruggles 
 
 22 
 
 Cooper V. Bailey 
 
 125 
 
 V. Davjes 
 
 452 
 
 V. Dedriek 
 
 458 
 
 V. Earl 
 
 339 
 
 V. Meyer 
 
 39, 132 
 
 V. Smith 
 
 33, 485 
 
 V. Waldegrave 
 
 166 
 
 Coore V. Callaway 
 
 246 
 
 Corney v. Da Costa 
 
 281 
 
 ■Cornu V. Blackburne 
 
 96 
 
 iCornwall v. Gould 
 
 404,411 
 
 Corp V. McComb 
 
 225 a 
 
 Cory V. Scott 268, 292, 356 
 
 359, 362 
 
 Cotes V. Davis 
 
 87, 306 
 
 Cottrell V. Conklin 
 
 476 
 
 Courtney v. Dodge 
 Cowper V. Smith 
 Cox V. Strode 
 Coyle V. Smith 
 Cragin v. Fowler 
 Crary v. Bowers 
 
 Section 
 
 467 
 
 485 
 
 264 
 
 493 
 
 187 
 
 104 
 
 Crawford v. Millspangh 410, 425 
 
 17. Kobie 183 
 
 Crawshay v. Collins 125 
 
 Creamer v. Perry 272, 276, 280, 282, 
 
 362 
 Critchlow v. Parry 135, 380 
 
 Crocker v. Getchell 306 a, 348 
 
 Crockett v. Thomason 408 a 
 
 Croghan v. Conrad 411 
 
 Cromwell v. Hynson 31 7 
 
 Crook 17. Jadis 197, 382 
 
 Crosbie v. McDowal 362 
 
 Crosby v. Grant 178 
 
 Crosse V. Smith 309, 312, 315, 322, 
 
 324 
 
 Crossen v. Hutchinson 241, 286 
 
 Crowe V. Clay 107, 108, 446 
 
 Crowley v. Barry 241 
 
 Crozer v. Chambers 134, 476 
 
 Cruchley iJ.Clarence 37, 37 a, 1 22, 1 38 
 
 Cruchly v. Mann 37, 37 a 
 
 Cruger v. Armstrong 190, 488, 491 , 
 
 492, 497, 498 
 
 Crumpston v. McNair 69, 72, 472 
 
 Crutebers v. Wolfe 361 
 
 Cuming v. French 278 
 
 Cumings v. Gassett 12 
 
 Cunningham v. Sonles 71 
 
 Curtis V. Bank of Somerset 63 
 
 V. Brooks 407 
 
 V. Gorman 9 
 
 17. Ingham 104 
 
 V. Martin 276 
 
 V. Kickards 14 
 
 Cushman v. Haynes 20 
 
 17. Dement 476 
 
 Cutler V. Welch . 189 
 
 Cutter V. Collins 189 
 
 V. Powell 259 
 
 Cutting V. Conklin 121 
 
 Cuyler v. Cuyler 408, 409 
 
 V. Nellis 335, 343 
 
 V. Stevens 219, 341 
 
 D. 
 
 Dabney v. Stidger 
 Dakin v. Anderson 
 
 239 
 119 
 
INDEX TO CASES CITED. 
 
 ZZI 
 
 Dana »■ Sawyer 
 Danforth v. Evans 
 
 V. Dart 
 Dangerfield v. Wilby 
 Daniel v. Andrews 
 Daniels v. Cartony 
 V. Kyle 
 
 Section 
 
 226 
 
 189 
 
 197 
 
 104 
 
 6 
 
 193 
 
 498 
 
 Darbishire v'. Parker 258, 319, 320, 
 
 324, 325, 337, 338 
 
 Darlinv v. March 364 
 
 Darnell K. Williams 187,190 
 
 Daubuz V. Morshead 96 
 
 Davenport v. Gilbert 315, 316, 349 
 
 David V. EUice 425 
 
 Davies v. Wilkinson 20 
 
 Davis V. Barron 1 34, 4 76 
 
 B. Dodd 108, 445, 446 
 
 V. Hanley 326 
 
 V. Jenney 181 
 
 V. Miller 178 
 
 V. Newton 88 
 
 V. Stevens 180 
 
 V. Williams 343 
 
 Dawkes v. Lord Deloraine 25, 41 
 
 Day V. Elmore 458 
 
 V. Nix 187 
 
 Dean v, De Lozardi -45 
 
 ». Hall 59,459,472-474, 
 
 476, 477, 480, 484 
 
 V. Newhall 408, 409, 425 
 
 V. Richmond 85, 88 
 
 DeBergareche v. Pillin 234 
 
 Deberry v. Darnell 18 
 
 Deblieux i>. BuUard 321 
 
 Deering v. Chapnian 189 
 
 De Forrest «. Frary 22 
 
 - De Gaillon v. L'Aigle 86 
 
 Dehers ». Harriot 16, 224 
 
 De la Chaumette v. Bank of 
 
 England 1 72, 1 73, 1 75, 1 95 
 
 De la Courtier v. Bellamy 45 
 
 Delano v. Bartlett 181 
 
 De Launey v. Mitchill 190 
 
 Delaware Bank v. Jarvis 118 
 
 Deleeal v. Nay lor 396 
 
 Delvitt V. Walton 69 
 
 Deminds v. Eirkman 325 
 
 Dennie v. Hart 389 
 
 V. Walker 225 a 
 
 Dennis o. Morrice 280, 364 
 
 Denniston v. Bacon 190 
 
 V. Stewart 349 
 
 Denny v. Palmer 280, 283 
 
 Derry, ». Duchess of Mazarine 86 
 Des Arts w. Leggett 111 
 
 Section 
 
 Descadillas v. Harris 104 
 
 Desmond v. Rice 111 
 
 De Sewhanberg v. Buchanan 187 
 
 De Silva v. Fuller 384 
 
 De Sobry v. De Laistre 155, 157 
 
 Devaynes v. Noble 101, 310, 361 
 
 Devlin v. Chamblin 104 
 
 Develing ». Ferris 282 
 
 De Wolf p. Johnson 166 
 
 V. Rabaud 133, 457, 459 
 
 Dezeng v. Bailey 410 
 
 Dickenson v. Bowes 227 
 
 Dickerson v. Commissioners 413 
 
 Dilley v. Van Wie 18 
 
 Dingwall v. Dunster 201, 419 
 
 Dixon V. Dixon 1 04 
 
 V. Elliott 350, 359 
 
 V. Johnson 335, 533 a 
 
 V. Nuttall 26, 29 
 
 Dobree v. Eastwood 303, 323, 328, 
 
 330, 332 
 
 Dockray «. Dunn 229 
 
 Dodge L-. Bank of Kentucky 325 
 
 V. Emerson 20 
 
 Dodson V. Harris 48 a 
 
 Doe V. Beavan 245 
 
 Dole V. Gold 350, 354 
 
 V. Weeks 132 
 
 V. Young 457, 460 
 
 DoUfris V. Frosch 246, 452 
 
 Don V. Lippman 164, 165 
 
 Donley v. Camp 461 
 
 Donnelly v. Howie 275, 358, 362 
 
 Dorr i). Fisher 187 
 
 Douglass V. Howland 59, 458, 460, 
 
 467 
 
 V. Reynolds 460, 472 
 
 Dow V. Spenney II 
 
 Dowe V. Schutt 190 
 
 Down u. Hailing 178, 197, 382, 489, 
 
 490, 491, 493 
 
 Downer ». Remer 343 
 
 Downing v. Backenstoes 3 
 
 Downs V. Planters' Bank 325 
 
 Doyle V. Emerson 20 
 
 Drake v. Elwin 72 
 
 V. Flewellen 69 
 
 V. Rogers 48 
 
 Draper v. Jackson 87, 88 
 
 V. Mass. Steam Heating 
 
 Co. 69 
 
 Drayton v. Dale 80, 101 
 
 Drew V. ToWle 189 
 
 Drury v. Macaulay 21 
 
 V. Strong 264 
 
XXU 
 
 INDEX TO CASES CITED. 
 
 Section 
 Dubois V. Del 69 
 
 Duboze V. Wheddon 78 
 
 Duckert v. Von Lilienthal 297 
 
 Du Costa V. Cole 391 
 
 Dugan V. U. States 127, 246, 452 
 DuQammel v. Pickering 96 
 
 Duke V. Dow 24 
 
 Duncan v. McCuUough 237 
 
 V. Scott 188 
 
 V. Sparrow 342, 343 
 
 V. Young 337 
 
 Dungannon v. Hackett 399 
 
 Dunlap V. Harris 6 
 
 Dunn V. O'Keefe 178 
 
 Durham v. Manrow 476 
 
 Durnford v. Patterson 224 
 
 Dusenbury v. Ellis 71 
 
 Dutchess Cotton Manufacturing 
 
 Company v. Davis 3 
 
 Duvall V. Farmers' Bank 281 
 
 Dwightu.. Newell 123 
 
 V. Scovil 294 
 
 Dyer 7j. Hunt 155, 156 
 
 Dyke V. Mercer 409 
 
 Dykers v. Leather Manufac- 
 turing Bank 498 a, 499 
 
 E. 
 
 Eagle Bank v. Chapin 321, 324, 325 
 ». Hathaway 325 
 
 of New Haven v. 
 
 Smith 118 
 
 Earle v. Keed 78 
 
 Early v. Wilkinson 68 
 
 Easley v. Crockford 197 
 
 East India Co. v. Tritton 135, 380 
 
 East River Bank v. Gedney 493 
 
 Eastwood V. Kenyon 87, 185 
 
 Eaton V. Bell 63, 65 
 
 Eccles «. Ballard 132 
 
 Edgerton v. Edgerton 51 
 
 Edie V. East India Co. 37 a, 138, 
 
 139, 142, 143 
 
 Edis V. Bury 1 6 
 
 Edmondsw. Cates 323, 352 
 
 Edwards v. Davis 85 
 
 I). Dick 196 
 
 V. Jevons 465 
 
 V.Jones 198 
 
 V. Stevens 88 a 
 
 V. Tandy 271,272,274,275 
 
 Effinger y. Richards 23 
 
 Egg 17. Barnett 109 
 
 Section. 
 
 Eichelberger v. Finley 495 
 
 Ekins u. East India Co. 166, 394,396 
 
 Elford V. Teed 226, 234 
 
 Elkington v. Fennimore 128 
 
 Elliot V. Cooper 36 
 
 V. Sleeper 107 
 
 Ellis ». Brown 134, 470 
 
 V. Ellis 14, 18 
 
 V. Galindo 421 
 
 V. Mason 12 
 
 V. Pulsifer 69 
 
 V. Wild 113 
 
 Ellison V. Dezell 423, 426 
 
 Ellsworth V. Fogg 381, 426 
 
 Elwell w. Dodge 178 
 
 Emblin v. Dartnell 227 
 
 Emerson v. Providence Hat 
 
 Manufacturing Co. 69, 438 
 
 Emery v. Estes 189 
 
 Emlyu. Lye 117,119,389 
 
 Emmet v. Tottenham 3, 102, 120 a 
 Emmott V. Keams 458, 459, 465 
 Engler v. Ellis 49 
 
 England, Bank of, r. Newman 118 
 English V. Darley 401,409,413,414, 
 415, 416, 420, 423, 427 
 Enthoven v. Hayle 35 
 
 Epler V. Funk 146 
 
 Esdaile v. Sowerby 203, 241, 252, 
 286, 302 
 Essex Co. V. Edmands 476 
 
 Etheridge v. Binney 72, 73 
 
 Etting V. Brinkerhoff 488, 496, 497 
 V. Schuylkill Bank 330, 354 
 Evans v. Cramlington 125, 146, 375, 
 
 377 
 
 V. Drummond 425 
 
 V. Evans 304 
 
 V. Gee 138 
 
 V. Gray . 168 
 
 t. Kymer 190 
 
 V. Smith 195 
 
 V. Underwood 27 
 
 V. Wells 69 
 
 Everard v. Watson 848, 350, 351 
 
 Everson v. Carpenter 78 
 
 Exchange and Banking Co. of 
 
 N. Orleans v. Boyce 348 
 
 Exon V. Russell 49 
 
 Eyre v. Barthrop 424, 427 
 
 Fabens v. Tirrell 196, 384 
 
 Fairchild v. Ogdensburgh R. R. 16 
 
INDEX TO CASES CITED. 
 
 XXIU 
 
 Fairfield v. Adams 
 Faith V, Richmond 
 Faithorne v. Blaquire 
 Fales V. Russell 
 Fancomb v. Thorn 
 Fancourt i>. Bull 
 Fanning v. Consequa 
 
 Section 
 
 115 6, 127 
 
 72 
 
 85 
 
 111, 243 
 
 17 
 
 197 
 
 166 
 
 Farmers' and Mechanics' Bank 
 
 V. Day 369 
 
 Farmers' and Mechanics' Bank v. 
 
 Butchers' and Drovers' Bank 494 a 
 
 Farmers' Bank v. Alden 226, 297 
 
 V. Duval 225 a, 243, 
 
 323 
 
 V. Rathbone418, 423 
 
 i). Vail 321, 326 
 
 Farnsworth v. Drake 33, 39 
 
 Farnum v. Fowle 225 a, 241, 286 
 
 Fay V. Smith 408 a 
 
 Fayle v. Bird 227, 253 
 
 Fear v. Dunlap 134, 474, 476 
 
 Feeter v. Heath 71 
 
 Feise v. Randall 427 
 
 Fells Point Savings Inst. v. 
 
 Weedon 106 
 
 Felton V. Reid 88 a 
 
 Fenn !). Harrison 117,118,405 
 
 Fenton ti. Goudry 235 
 
 Fentum v Pooook 418, 419, 422, 423 
 Fenby v. Pritchard 195 
 
 Ferguson v. Flower 154 
 
 Femer v. Williams 230 
 
 Ferris v. Bond 22, 34 
 
 Field V. Nickerson 129, 190 
 
 Fielder v. Marshall 16 
 
 Fink V. Cox 184 
 
 Firth V. Thrush 316, 325, 335, 359, 
 
 362 
 
 Fisher v. Evans 316, 335 
 
 V. Leland 1 78 
 
 V. Leslie 14 
 
 ». Mowbray 77 
 
 V. Pomfret 36, 142 
 
 Fishmongers' Co. v. Robertson 74 
 
 Fiske V. Eldredge 69 
 
 Fitch V. Jones 196 
 
 V. Redding 181, 493 
 
 V. Sutton 410 
 
 Fitchburg Bank v. Greenwood 146 
 
 V. Perley 324 
 
 Fitler t). Morris 316 
 
 Fitzgerald v. Williams 269 
 
 V. Trant 408 
 
 Fleckner v. Bank of U. States 127, 
 
 246 
 
 Section 
 
 Fleming v. Simpson 188 
 
 Flemington v. Smothers 167 
 
 Fletcher v. Bank of U. States 127 
 
 V. Froggatt 362, 363 
 
 V. Gushee 191 
 
 Flight u. McLean 16 
 
 Flindt V. Waters 94 
 
 Flint V. Day 476 
 
 V. Rogers 225 a 
 
 Foden v. Sharp 228 
 
 and Slater v. Sharp 228 
 
 Fogg a Sawyer 119, 389 
 
 Poland V. Boyd 294 
 
 Foler V. Givens 458 
 
 Folger V. Chase 121, 127, 151, 243 
 
 Fonda v. Van Home 77 
 
 Foote V. Brown 460 
 
 Forrey v. Baxter 104 
 
 Forsyth v. Day 69 
 
 Foster v. Barney 207, 480 
 
 V. Dawber 410 
 
 V. Fuller 63 
 
 V. Julian 205 
 
 V. Sineath 322, 327 
 
 V. Pearson 178 
 
 Fothdringham v. Price 275 
 
 Fowell V. Forrest 409, 509 
 
 Fowle V. Harris 48 a 
 
 Fowler v. Atkinson 63 
 
 V. Branth 196, 197 
 
 Fox V. Frith 65 
 
 Francis v. Wigswell . 85 
 
 V. Wilson 263 
 
 Franklin v. Vanderpoel 498 
 
 V. Verbois 238, 312 
 
 Frazer v. Harvje 359 
 
 V. Jordan 415 
 
 Freakley v. Fox 407, 444 
 
 Free v. Hawkins 24, 25, 135, 148, 
 
 291, 367 
 
 Frederick v. Cotton 36 
 
 Freeman v. Boynton 111, 243, 246, 
 
 247, 255, 265, 280, 
 
 362 
 
 Freemans' Bank v. Perkins 325, 327 
 
 French v. Jarvis 208 
 
 V. Price 425 
 
 V. Turner 117 
 
 French's Executors v. Bank of 
 
 Columbia 295, 357 
 
 Frontier Bank w. Morse 119,389 
 
 Fry V. Hill 208 
 
 :;. Rousseau 18 
 
 Frye v. Barker 419 
 
 Fuller V. Hooper 308 
 
xxiy 
 
 INDEX TO CASES CITED. 
 
 Section 
 
 Fuller V. McDonald 148, 1 71 
 
 FuUerton v. Bank of U.S. 234, 243, 325 
 Fulton V. Macoracken 268, 349 
 
 Furbear v. Caverly 272 
 
 Furnam v. Haskins 190 
 
 Furniss v. Gilchrist 16, 74, 115 b, 
 178,190, 195 
 Furze v. Sharwood 72, 73, 351, 352, 
 353, 354 
 Fydell v. Clarke 405 
 
 Fyler v. Givens 458 
 
 G. 
 
 Gadcomb v. Johnson 128 
 
 Gaither v. Farmers' and Mechan- 
 ics' Bank of Georgetown 193 
 Gale V. Kemper 228, 243 
 V. Kemper's Heirs 234, 343 
 Galway v. Matthew 57, 73, 188 
 Galpin V. Hard 264 
 Gait V. Galloway 378 
 Gamblin v. Walker 6 
 Gardner v. Gardner 85 
 V. Gordon 122 a 
 V. Walsh 408 a 
 Garforth v. Bradley 88 
 Garland v. The Salem Bank 241, 
 275, 280, 361 
 Garner v. Gamer 85 
 Garnett v. Woodcock 226 
 Gaeeoigne v. Smith 187 
 Gaskin v. Wells 104 
 Gaters v. Madeley 88, 306 
 Gay V. Kinsley 88 a 
 Geary v. Physic 11, 34, 121 
 Geill V. Jeremy 320, 324, 325 
 George ». Surrey 121 
 V. Clagett 178 
 V. Cutting 87 
 V. Ransom 88 a 
 Geortner v. Trustees, &c. 125 
 Gibb V. Mather 227, 230 
 Gibbon v. Coggon 362, 364 
 V. Scott 148 
 Gibbs V. Bryant 409 
 v. Cannon 460 
 V. Fremont 166, 177, 339 
 V. Merrill 78 
 Gibson V. Minet 33, 120 
 V. Powell 121 
 Gilbert v. Dennis 111, 243, 341, 354 
 V. Nantucket Bank 132 
 Giles V. Bourne 45 
 Gill V. Cubett 197, 382 
 
 Section 
 
 Gillan V. Huber 384 
 
 Gillard v. Wise 242 
 
 Gillett V. Averill 234 
 
 Gillespie v. Miller 88 a 
 
 o. Neville 298 
 
 Oilman ». Peck 119,389 
 
 Gist V. Ly brand. 343 
 
 Gladstone v. Hadwen 188 
 
 Glancy v. Elliot 22 
 
 Glassington v. Rawlings 21 1 
 
 Glenn v. Thistle 322, 362 
 
 Gloucester Bank v. Worcester 419 
 
 Glynn v. Baker 55 
 
 Goddin v. Shipley 165, 215 
 
 Goldsmith v. Bland 315 
 
 Gompertz V. Bartleit 118 
 
 Goodall V. Dolley 275, 278, 361 
 
 Goode V. Harrison 78 
 
 Goodfoster v. Voris 1 78 
 
 Goodman v. Harvey 109, 113, 178, 
 
 196, 197, 382 
 
 V. Simonds 11, 197 
 
 Goodnow V. Smith 408, 425 
 
 V. Tyler 438 
 
 Groodsell 1?. Myers 78 
 
 Goodwin v. Cremer S74, 422 
 
 V. Davenport 120, 208 
 
 Gordon v. Montgomery 272 
 
 i>. Rundlett 22 
 
 Gore V. Brazier 264 
 
 Goi^erat v. M'Carty 246 
 
 Gorgier v. Mieville 55 
 
 Goss V. Nelson 26, 28 
 
 V. Whitney 48 a 
 
 Gough V. Tmdon 9 
 
 'Gould V. Armstrong 192 
 
 V. Robson 413, 414, 422 
 
 V. Segee 196 
 
 Goulding v. Davidson 87 
 
 Goupy V. Harden 65, 146, 208 
 
 Gowan v. Jackson 208, 253, 308 
 
 Gower v. Moore 241, 253 
 
 Grafton Bank v. Cox 205 
 
 V. Flanders 71 
 
 Graham v. Langston 351 
 
 V. Moore 305 
 
 V. Sykes 104 
 
 Granden v. Le Roy 194 
 
 Grand Bank v. Blanchard 320 
 
 Granite Bank v. Ayers 238, 286, 
 
 312, 313 
 
 Grant V. Healey • 399 
 
 V. Kidwell 384 
 
 «. Vaughan 6,36,113,137, 
 
 191, 197, 382 
 
INDEX TO CASES CITED. 
 
 XXV 
 
 
 Section 
 
 Grant v. Welchman 
 
 187 
 
 Grath V. Gyger 
 
 241 
 
 Gray v. Cooper 
 
 80 
 
 V. Donahoe 
 
 18 
 
 V. Kinsley 
 
 102 
 
 V. Wood 
 
 . 48 
 
 Green v. Austin 
 
 20 
 
 V. Boaz 
 
 36 
 
 V. Croft 
 
 452 
 
 V. Darling 
 
 327 
 
 V. Davis 
 
 12 
 
 V. Deakin 
 
 73 
 
 V. Dodge 
 
 59, 472 
 
 V. Drebilbis 
 
 29 
 
 V. Shepherd 
 
 467 
 
 Greene v. Farley 
 
 312 
 
 Greenhow v. Boyle 
 
 37,^7 a 
 
 Greenough v. Smead 
 
 476 
 
 Greenwood v. Curtis 
 
 157, 438 
 
 Greeley v. Thurston 
 
 225 a, 327 
 
 Greer e. George 
 
 181 
 
 Gregory v. Fraser 
 
 188 
 
 V. Paul 
 
 86 
 
 V. Pierce 
 
 86 
 
 Grew V. Bevan 
 
 188 
 
 V. Burditt 
 
 190 
 
 Griffin V. Goff 275, 287, 361 
 
 Griffith V. Grogan 104 
 
 Griffiths V. Owen 404 
 
 Grinman u. Walker 312,328 
 
 Griswold v. Sloeum 473 
 V. Waddington 94, 100, 262 
 
 Grosvenor v. Stone 334 
 
 Groton V. Dallheim 241 
 
 Grover v. Grover 128 
 Grugeon v. Smith 352, 353, 354 
 
 Gruger v. Armstrong 480, 492 
 
 Guernsey t*. Burns 126 
 
 Guidrey i>. Vives 468 
 
 Guild V. Ea^er 180 
 
 Guildin v. Linderman 476 
 
 Gullettw. Hoy 178 
 
 Gimson v. Metz 275 
 
 Gurney v. Womersley 118 
 
 Guy V. Harris 14 
 
 Gwinn V. Lee . 196 
 
 Gwinuell v. Herbert 128, 129 
 
 H. 
 
 Haddock u. Bury 362 
 V. Murray 243 
 Hagedon v. Keid 297 
 Hagerstown Bank v. Adams Ex- 
 press Co. Ill 
 
 
 Section 
 
 Ha^ue V. French 
 
 45 
 
 Haigh V. Brooks 
 
 465 
 
 Haight V. Joyce 
 
 192 
 
 Haine v. Tarrant 
 
 73 
 
 Hale V. Burr 
 
 237, 253 
 
 Halifax v. Lyle 
 
 80 
 
 Hall V. Burton 
 
 36 a 
 
 V. Cole 
 
 415 
 
 V. Earnest 
 
 190 
 
 V. Farmer 
 
 457, 459, 472 
 
 V. Franklin 
 
 76 
 
 V. Fuller 
 
 490 
 
 V. Hadley 
 
 485 
 
 V. Hale 
 
 197 
 
 V. Harris 
 
 45 
 
 V. Newcomb 133, 138, 147, 469, 
 
 473,476,477,480 
 
 V. Richardson 104 
 
 V. Rogers 460 
 
 V. Smith 57 
 
 V. Wilcox 421, 423 
 
 V. Wilson 9, 197 
 
 Hallett V. Holmes 415 
 
 Hallowell v. Curry 226, 243, 315, 321 
 
 Halstead v. Mayor of New York 74 
 
 Haly V. Lane 191 
 
 Hamilton v. McDonald 128 
 
 Hammersly v. Purling 498 a 
 
 Hammett v. Wyman 425 
 
 Hammond v. Dufreue 498 
 
 V. Messenger 128 
 
 V. Whitehead 10 
 
 Hampton v. Speckenagle 71 
 
 Hanoe v. Miller 121 
 
 Hancock Bank v. Joy 70, 87 
 
 Handly v. Rankin 296 
 
 Handyside v. Cameron 11 
 
 Hank V. Crittenden 460 
 
 Hansard v. Robinson 106, 107, 108, 
 
 201, 243, 389, 445, 446, 449, 450 
 
 Hanson v. Buckner 264 • 
 
 Harbeck v. Croft 492 
 
 Hardin v. Wright 184 
 
 Harker i-. Anderson 481, 488-490, 
 
 498 
 
 Harley v. Thornton 119, 389, 502 
 
 Harmer v. Steele 444 
 
 Harper v. Little 71 
 
 Harrington V. Lee 187 
 
 V. Stratton 187 
 
 V. Thompson 88 a 
 
 Harris v. Clark 239, 255 
 
 V. Robinson 316 
 
 V. Wall 78 
 
 Harrisburg Bank v. Meyer 190 
 
XXVI 
 
 INDEX TO CASES CITED. 
 
 Sectaon 
 
 Harrison v. Close 408, 409, 410, 425 
 
 V. Courtauld 418, 423 
 
 V. Kuscoe 306 a 
 
 Hart w. Eastman 279 
 
 V. Green 228, 229 
 
 V. Long 228, 235, 362 
 
 V. Smith .224 
 
 V. Stevens 88 
 
 Harter u. Johnson 189 
 
 Hartford Bank u. Barry 127,246 
 
 V. Green 226, 235 
 
 V. Stedman 320, 324, 
 
 325, 327 
 
 Hartley v. Case 225 a, 348 - 352 
 
 V. Thornton 389 
 
 V. Wilkinson 23 
 
 Harvey v. Archbold 167 
 
 V. Towers 196 
 
 Haskell v. Boardman 205 
 
 V. Cornish 69 
 
 Haslett D. Ehrick 411 
 
 Hatch V. Searles 113, 196 
 
 V. Trayes 51 
 
 Hatchett v. Baddeley 85, 86 
 
 Haugh V. Gray 459 
 
 Haussoullier v. Hartsinck 26 
 
 Haverhill M. Ins. Co. v. Newhall 69 
 
 Hawes v. Armstrong 458 
 
 Hawken v. Bourne 72 
 
 Hawkes v. Phillips 58, 476 
 
 V. Salter 324, 325, 331 
 
 V. Saunders 185 
 
 Havens v. Huntington 178, 180 
 
 V. Talbot 226 
 
 ' Hay V. Ayling 189, 190 
 
 Haydock v. Lynch 25 
 
 Hayes v. Foster 197 
 
 V. Warren 185 
 
 Hayling v. MuUhall 409 
 
 Haynes v. Birks 320, 321, 325, 326 
 
 f Hazelton Coal Co. v. Kyerson 340, 
 
 343 
 Headley v. Bainbridge 72 
 
 Heald v. Davis 452 
 
 Healy u. Gorman 166,167 
 
 Hearne v. Rugus 360 
 
 Pleath w. "Van Cott 476 
 
 Heaton v. Hubbard 480 
 
 Hedger v. Steavenson 352, 353, 354 
 Hedges u. Sealy 173 
 
 Hefford v. Morton 413 
 
 V. Sanger 804 
 
 Heiss V. Corcoran 312 
 
 Heifer v. Alden 12, 54, 128, 129 
 
 Hemenway v. Stone 57 
 
 Section 
 
 Hemphill v. Bank of Alabama 37 
 
 Henderson v. Appleton 500 
 
 V. Benson 192, 193 
 
 V. Fox 78 
 
 Henry v. Coates 408 a 
 
 V. Jones 211, 225 a 
 
 Henschel v. Mahler 12 
 
 Hensdale v. Bank of Orange 111 
 
 Hepburn v. Toledano 236 
 
 Herriok v. Carman 133, 473, 476, 
 
 477, 480 
 
 Herring v. Dorell 362 
 
 V. Sanger 404 
 
 V. Woodfall 121 
 
 V. Woolverton 208 
 
 Hert V. Cooper 189 
 
 Hestres v. Petronic 309 
 
 Hewet V. Goodrick 413 
 
 Heylin v. Adamson 4, 121 
 
 Heywood v. Perrin 49 
 
 V. Watson 186, 195 
 
 V. Wingate 16, 36 a 
 
 Hicks V. Brown 168 
 
 V. Duke of Beaufort 359, 364 
 
 J). Wirth 122 o 
 
 Hickman v. Byan 325 
 
 Higby V. New York K. R. Co. 104 
 
 Higham v. Ridgeway 297 
 
 Higgins V. Miner 189 
 
 V. Wortell 104 
 
 Hill V. Buckminster 185 
 
 V. Cooley 408 a 
 
 V. Dunham 48 a 
 
 V. Halford 22 
 
 V. Heap 293 
 
 V. Lewis 128, 135, 477, 480 
 
 V. Norvell 312, 316, 327 
 
 V. Todd 17, 51 
 
 V. Varrell 316, 344, 359 
 
 Hills V. Bannister 63, 69, 70 
 
 Hilton V. Fairclough 323 
 
 V. Houghton 48 a 
 
 V. Shepherd 258, 324, 331 
 
 Hine v. Allely 238, 315 
 
 Hinsdale v. Bank of Orange 111, 442 
 
 Hirschfield v.. Smith 339 
 
 Hitchcock V. Cloutier 12 
 
 V. Humphrey 460 
 
 Hoare v. Clute 404, 438 
 
 V. Graham 25, 148, 150, 291, 
 
 367 
 
 Hobart v. Stone 407 
 
 Hodges V. Adams 139 
 
 II. Gault 317 
 
 V. Shuler 18 
 
INDEX TO CASES CITED. 
 
 XXVll 
 
 Section 
 121 
 467 
 
 Hodges V. Steward 
 Hodgkins v. Bond 
 Hoews V. Bigelow 
 Hogatt V. Bingaman 
 Holbrook v. Mix 
 Holbrow ». Wilkins 
 Holdeii V. Cosgrove 
 Holeman v. Hobson 
 Holland v. Hatch 
 
 V. Turner 
 
 Holliday D. Atkinson 51, 79,181, 184, 
 
 187, 362 
 
 Holman v. Whiting 
 
 Holmes v. Blogg 
 
 V. De Camp 
 
 V. Jaques 
 
 V. Sinclair 
 Home Ins. Co. v. Greene 
 Homes v. Karsper ' 
 
 V. Smith 
 Hone V. Allen 
 V. Folger 
 Hooper v. Williams 
 Hopes V. Alder 
 Hopkins v. Farwell 
 
 V. Liswell 
 
 V. Mehaffy 
 Hopkirk v. Page 
 Hordern v. Dalton 
 Horford v. Wilson 
 Hornblower v. Proud 
 Home V. Redfearn 
 Hosford V. Nichols 
 Hosstatter v. Wilson 
 Hotchin w. Secor 
 Hough V. Gray 58, 59, 457,459,468, 
 470,472,473,476,477,480 
 V. Barton 106, 451 
 
 Houghton V. Page 155, 156, 166, 167 
 HoulditchB. Cauty 352, 353, 354 
 Houriet v. Morris 98 
 
 Housatonic Bank v. Claflin 324, 348, 
 
 349 
 House V. Adams 262, 356 
 
 How V. Hartness 12 
 
 Howard v. Chapman 389 
 
 a. Ives 220,316,321,324, 
 325, 326,327,331, 335 
 
 V. Jones 104 
 
 V. Oakes 88 
 
 Howdeh V. Haigh 421 
 
 Howe V. Bowes 227, 237, 238, 241, 
 
 315, 500 
 
 V. Litchfield 189 
 
 V. Merrill 134 
 
 322 
 
 113, 195, 196 
 
 284, 485 
 
 192 
 
 191 
 
 10 
 
 241 
 
 282 
 
 77 
 
 104, 404, 438 
 
 33 
 
 57 
 
 349 
 
 196, 197 
 
 191, 195, 220 
 
 186 
 
 186 
 
 16 
 
 275, 364 
 
 180 
 
 274, 275, 362 
 
 69, 71 
 
 262, 337 
 
 338 
 
 362 
 
 186 
 
 12 
 
 166, 167 
 
 18 
 
 104 
 
 Howe V. Nickels 
 
 V, Wildes 
 
 Howell V. Jones 
 
 V. Wilson 
 Hoyt V. Jaffray 
 V. Sedey 
 Hubbard v. Jackson 
 V. Mosely 
 V. Troy 
 Hubbell V. Flint 
 Hubbly V. Brown 
 Hudson V. Barton 
 
 V. Granger 
 Hull V. Blake 
 V. Farmer 
 V. Pilfield 
 Humphries v. Blight 
 Hunt V. Adams 57-59 
 
 V. Boyd 
 u. Brigham 
 V. Brown 
 V. Fish 
 V. Holden 
 
 459, 
 
 V. Maybee 
 w. Wadleigh 
 Hunter v. Agnew 
 V. JefTery 
 V. Kibble 
 Hurd V. Little 
 Huse V. Alexander 
 Hussey v. Freeman 
 Huston V. Young 
 Hutchins v. Nichols 
 V. Olcutt 
 Hutchinson v. Moody 
 Hutz V. Karthause 
 Hyde v. Long 
 V. Price 
 Hyne v. Dewdney 
 Hyslop V. Jones 
 
 Section 
 
 460 
 
 87 
 
 485 
 
 380 
 
 51 
 
 498 
 
 180 
 
 22 
 
 297, 324 
 
 192 
 
 413 
 
 225 a 
 
 249 
 
 168 
 
 457,459 
 
 422 
 
 178 
 
 133,466,467, 
 
 473, 480 
 
 104 
 
 419, 422 
 
 470, 472, 478 
 
 195, 343 
 
 213 
 
 78, 79 
 
 356 
 
 241 
 
 77 
 
 39, 132 
 
 246, 452 
 
 411 
 
 404 
 
 278, 365 
 
 48 
 
 416 
 
 104 
 
 119 
 
 367 
 
 409 
 
 85 
 
 114 
 
 312,327 
 
 Ilsley V. Jewett 438 
 
 Ingham v. White 88 a 
 
 Innes v. Dunlap 174 
 
 Ireland v. Kipp 312-314, 320, 322, 
 323, 343 
 Irish u. Cutler 476 
 
 Isberg V. Bowden 178 
 
 Ives V. Farmers' Bank 10 
 
 Ivory V. Michael . 408 a 
 
XXVIU 
 
 INDEX TO CASES CITED. 
 
 J 
 
 
 
 
 Section 
 
 t/» 
 
 Section 
 
 Jones V. Ryde 
 
 
 118, 135 
 
 Jacaud v. French 
 
 402, 425 
 
 V. Savage 
 
 274, 
 
 275, 361 
 
 Jackman v. Mitchell 
 
 427 
 
 V. Shelbyville 
 
 
 10 
 
 Jacks V. Darrin 
 
 498 a 
 
 V. Tinker 
 
 
 115 o 
 
 Jackson v. Davidson 
 
 427 
 
 V. Thorn 
 
 
 125 
 
 V. Lomas 
 
 427 
 
 V. Wardwell 
 
 
 328, 346 
 
 V. Newton 
 
 201 
 
 V. Witter 
 
 
 128 
 
 V. Richards 225 a, 
 
 241, 325 
 
 Josceline v. Laserre 
 
 
 16, 25, 27 • 
 
 V. Stackhouse 
 
 410 
 
 Joslyn V. Collinson 
 
 
 133 
 
 V. Warwick 
 
 187, 190 
 
 Josselyn v. Ames 58, 
 
 128, 
 
 459, 473, 
 
 Jacoby v. Lausatt 
 
 265 
 
 
 474 
 
 477, 480 
 
 James v. Atkins 
 
 138 
 
 Judah V. Harris 
 
 
 18 
 
 V. Badger 
 
 422 
 
 Judson V. Homes 
 
 
 196 
 
 V. Catherwood 
 
 158 
 
 Juniata Bank v. Hale 
 
 
 241 
 
 V. Chalmers 
 
 381, 387 
 
 Jury V. Baker 
 
 
 23 
 
 Jameson v. Swinton 226 
 
 302, 303 
 
 
 
 
 Jarvis v. St. Croix Manufac 
 
 - 
 
 
 
 
 turing Co. 
 
 295, 338 
 
 K. 
 
 
 
 V. Wilkins 
 
 13, 458 
 
 
 
 
 V. Williams 
 
 13 
 
 Kasson v. Smith 
 
 
 190 
 
 Jay V. Warren 
 
 415 
 
 Kay V. Duchess 
 
 
 86 
 
 Jeffrey v. McTaggart 
 
 174 
 
 Keane v. Boycott 
 
 
 77 
 
 Jefts V. York 
 
 71 
 
 Kearslake v. Morgan 
 
 104 
 
 , 404, 438 
 
 Jenkins v. Hutchinson 
 
 71 
 
 Kearsley v. Cole 
 
 
 426 
 
 V. Reynolds 
 
 458, 459 
 
 Keaton v. Cox 
 
 
 115 a 
 
 Jenners v. Howard 
 
 337 
 
 Keene v. Beard 
 
 
 495 
 
 Jenness v. Bean 
 
 195 
 
 Keith V. Jones 
 
 
 18 
 
 Jennings v. Roberts 
 
 301 
 
 Kelley v. Brown 
 
 360 
 
 492, 499 
 
 V. Thomas 
 
 476 
 
 V. Noyes 
 
 
 189 
 
 Jennison v. Stafford 
 
 181 
 
 Kelly V. Hemming way 
 
 
 22 
 
 Jenny v. Herle 
 
 25, 27 
 
 Kellogg V. Moore 
 
 
 192 
 
 Jerome v. Whitney 
 
 17 
 
 Kemble v. Mills 270, 
 
 284, 
 
 285, 369, 
 
 Jillson V. Hill 
 
 29 
 
 
 
 460, 489 
 
 Johnson v. Blasdale 
 
 37 
 
 Kemp V. Bull 
 
 
 374 
 
 V. Chadwell 
 
 101 
 
 Kennard v. Knott 
 
 
 414 
 
 V. Johnson 
 
 438 
 
 Kennedy v. Gouveia 
 
 
 69 
 
 V. Kinnion 
 
 422 
 
 V. Motte 
 
 
 422, 432 
 
 u. Slimmer 
 
 266 
 
 V. Murdick 
 
 
 189 
 
 V. Weed 
 
 404, 438 
 
 Kent V. Lowen 
 
 
 186 
 
 V. Wilmarth 
 
 459 
 
 Kentgen v. Parks 
 
 
 197 
 
 V. Windle 
 
 490 
 
 Kenworthy v. Hopkins 
 
 ! 
 
 428 
 
 Johnston v. Searey 
 
 271 
 
 Keough V. McNitt 
 
 
 104 
 
 Jolly V. Young 
 
 213 
 
 Kern v. Von Phul 
 
 
 298, 312 
 
 Jones V. Broadhurst 
 
 422 
 
 Kerrison v. Cooke 
 
 
 418, 422 
 
 V. Darch 
 
 78,80 
 
 Ketchell v. Burns 
 
 147, 
 
 468, 470, 
 
 V. Fales 17, 18, 111, 
 
 128, 241, 
 
 
 472 
 
 , 480, 484 
 
 243 
 
 359, 360 
 
 Kidder ». Blake 
 
 
 192 
 
 V. Fort 246, 247 
 
 249, 305 
 
 V. Knox- 
 
 
 104 
 
 !;. Hibbert 
 
 190, 191 
 
 Kilgore v. Bulkley 
 
 
 12 
 
 V. Jones 
 
 15 
 
 Kilgour V. Miles 
 
 
 220 
 
 V. Kennedy 
 
 438 
 
 Kilcrease v. Kilcrease 
 
 • 
 
 88 
 
 i>. Kennison 
 
 422 
 
 Kimball v. Huntington ] 
 
 L2, 14, 59, 1 
 
 V. Lewis 
 
 343 
 
 
 
 128, 472 
 
 V. O'Brien 
 
 859 
 
 V. Newell 
 
 
 485 
 
 V. Radford 
 
 239 
 
 V. Whitney 
 
 
 122 a 
 
INDEX TO CASES CITED. 
 
 XZIX 
 
 
 Becllon 
 
 King ». Baldwin 
 
 414 
 
 V. Bickley 
 
 862, 353 
 
 t>. Box 
 
 33 
 
 V. Hoare 
 
 409, 410 
 
 0. Holmes 
 
 235 
 
 0. Thorn 
 
 63 
 
 Kingsbury v. Ellis 
 
 189 
 
 Kingston v. Long 
 
 22 
 
 Kirbj' «. Sisson 
 
 448 
 
 Kirk V. Blurton 
 
 72 
 
 Kirkpatrick v. Muirhead 
 
 195 
 
 Kirshaw v. Cox 
 
 87 a 
 
 Kitclien v. Bartsch 
 
 102 
 
 Klein v. Currier 
 
 476 
 
 Kleinman v. Boernstein 
 
 315 
 
 Klockenbaum v. Pierson 
 
 349 
 
 Knight V. Hunt 
 
 190 
 
 V. Pugh 
 
 109, 196 
 
 V. Putnam 
 
 193 
 
 Knipper i>. Chase 
 
 17 
 
 Knox V. Jordan 
 
 88 a 
 
 Kobler v. Montgomery 
 
 213 a 
 
 Koontz V. Nabb 
 
 88 a 
 
 Konig V. Baynard 
 Kottwitz V. Bagby 
 
 388 
 
 119 
 
 Kramer v. M'Dowell 
 
 322 
 
 V. Sandford 
 
 281, 282 
 
 Kuf h V. Weston 328 
 
 , 338, 340 
 
 Labron v. Woram 
 
 473 
 
 476, 480 
 
 Lacon v. Hooper 
 
 
 161,212 
 
 Lacy V. Kinaston 
 
 
 408, 409 
 
 Ladd V. Baker 
 
 
 57 
 
 V. Kenney 
 
 
 362 
 
 Lafitte V. Slatter 
 
 
 288 
 
 Lake v. Stetson 
 
 
 476 
 
 Lambert v. Chiselm 
 
 
 316 
 
 V. Oakes 
 
 
 380 
 
 V. Pack 
 
 
 185, 380 
 
 V. Taylor 
 
 
 41, 130 
 
 Lamourieux v. Hewitt 133 
 
 147,472, 
 
 
 
 480, 484 
 
 Landry v. Stansbury 
 
 
 241, 253 
 
 Lane v. Schutz 
 
 
 85 
 
 V. Steward 
 
 148 
 
 272, 366 
 
 Lang V. Gale 
 
 
 161, 212 
 
 Langdale v. Trimmer 
 
 
 320, 326 
 
 Lanusse v. Barker 
 
 
 399 
 
 B. Massicot 
 
 
 238, 320 
 
 Lapice V. Smith 
 
 
 166 
 
 Laporte v. Landry 
 
 278, 
 
 312, 320, 
 322, 365 
 
 
 ' Seetlon 
 
 Lathrop «. Griffith 
 
 476 
 
 Latt V. Booth 
 
 78 
 
 Laugher v. Brefitt 
 
 265 
 
 Laughlin v. Marshall 
 
 12 
 
 Lawrence v. Dobyns 
 
 146, 227 
 
 V. Dougherty 
 
 17 
 
 V. Langley 
 
 200, 241 
 
 ti. M'Calmont 
 
 284 
 
 V. Ralston 
 
 276, 362 
 
 Lawrason v. Mason 
 
 482 
 
 Law V. East India Company 427 
 
 Lawson v. Farmers' Bank 
 
 324, 326 
 
 V. Weston 
 
 197 
 
 Laxton v. Peat 418, 419 
 
 422, 423 
 
 Lazarus v. Shearer 
 
 71 
 
 Leach v. Blow 
 
 70 
 
 Lean v. Shutz 
 
 86 
 
 Leary «. Blanchard 
 
 143 
 
 Leavitt v. Blatchford 
 
 18 
 
 V. Putnam 
 
 178, 180 
 
 Lechmere v. Fletcher 
 
 409, 421 
 
 Ledger v. Ewer 
 
 187, 190 
 
 Lecaan v. Kirkman 
 
 363 
 
 Lee V. Cameron 
 
 88 a 
 
 V. Levi 
 
 415 
 
 Lee Bank v. Spencer 
 
 287 
 
 V. Muggeridge 
 
 185 
 
 V. Wilcocks 
 
 396 
 
 V. Zagury 
 
 178 
 
 Leeds Banking Co., In re 
 
 326 
 
 Leeds v. Lancashire 
 
 23 
 
 «. Vail 
 
 70,87 
 
 Lefevre v. Lloyd 
 
 65 
 
 Leffingwell v. White 148, 
 
 161, 271, 
 
 
 357 
 
 Leftly V. Mills 
 
 225 a 
 
 Legg V. Legg 
 
 88 
 
 Legge V. Thorpe 
 
 359, 498 
 
 Leggett V. Raymond 
 
 480, 484 
 
 V. Jones 
 
 17 
 
 Lehman v. Jones 
 
 237 
 
 Leiber v. Goodrich 
 
 18 
 
 Leicester v. Rose 
 
 427 
 
 Lenox v. Prout 
 
 415,419 
 
 V. Roberts 265, 324 
 
 326,327, 
 
 
 331 
 
 Leonard v. Gary 148, 272, 
 
 274, 275, 
 
 357 
 
 369, 361 
 
 V. Leonard 
 
 375 
 
 V. Vredenburgh 
 
 133, 457, 
 
 459 
 
 ,472,473 
 
 t). Walker 
 
 51 
 
 V. Wildes 
 
 68, 476 
 
 V. Wilkes 
 
 476 
 
 Leroy v. Johnson 
 
 72 
 
XXX 
 
 INDEX TO CASES CITED. 
 
 Le Koy v. Crowninshield 
 Lester v. Garland 
 
 !). Webb 
 Levy V. D. States Bank 
 Lewis V. Brewster 
 
 V. Bowen 
 
 V. Burr 
 
 V. Cosgrave 
 
 V. Gompertz 
 
 V. Harvey 
 
 V. Jones 
 
 V. Kramer 
 
 V. Lee 
 
 V. Ord 
 
 V. Owen 
 
 I'. Peake 
 
 V. Petayvin 
 
 V. Riley 
 
 V. Tipton 
 
 V. Williams 
 Libby v. Adams 
 
 Section 
 169 
 211 
 183 
 379 
 460 
 122 a 
 219 
 187, 190 
 352, 853, 354 
 460; 476 
 462, 427 
 205, 280 
 85 
 27 
 169 
 262 
 111,448 
 125 
 22 
 409 
 316 
 Lickbarrow v. Mason 191 
 
 Liggett V. Bank of Pennsylvania 411 
 Lightbody v. The Ontario 
 
 Bank 119, 389 
 
 Lime Rock Bank v. Hewett 312 
 Lincoln and Kennebec Bank v. 
 
 Page 271 
 
 Lindenberger v. Beall 320 
 
 Linderman v. Guldin 310, 345, 476 
 Lindo V. Unsworth 220, 222, 320, 
 
 321 
 
 Lindon v. Hooper 265 
 
 Lindus v. Brad well 70, 87 
 
 V. Melrose 69 
 
 Lines v. Smith 181 
 
 Little V. O'Brien ' 125, 138, 246 
 
 V. The Phenix Bank 489, 492, 
 
 496, 497, 498 
 
 V. Thomas 33 
 
 Littlefield v. Shee 87, 185 
 
 Lloyd V. Howard 120 a, 124 
 
 V. Oliver 16 
 
 V. Scott 193 
 
 Lobdell !). Niphler 413, 422 
 
 Lockwood V. Crawford 207, 242, 
 
 299, 325, 348, 349, 350, 354 
 
 Lodge V. Dicas 425 
 
 V. Phelps 176 
 
 Loftus V. Clark 18 
 
 Long V. Bailie 106, 451 
 
 V. Coiburn 69, 71 
 
 V. Crawford 178, 272 
 
 V. Smyrer 128 
 
 Longley v. Griggs 133 
 
 
 Section 
 
 Lonsdale v. Church 
 
 263 
 
 Loose V. Loose 
 
 274, 275 
 
 Losee v. Dunkin 
 
 190 
 
 Lord V. Hall 
 
 87, 187 
 
 V. Parker 
 
 88 a 
 
 Lord Gall way v. Mathew 188 
 
 Loud V. Merrill 298, 328 
 
 Louisiana State Bank v. EUery 309 
 
 V. Hehnen 332 
 
 V. Rowel 312, 
 
 320, 322 
 
 Louisiana Insurance Co. v. 
 
 Shamburg 235, 236 
 
 Lovett y. Cornwell 498 a 
 
 Lovejoy v. Whipple 48 a 
 
 Loveland v. Shepard 460, 472, 480 
 Lovell V. Evertson 126, 138 
 
 r. Hill 12 
 
 Low V. Howard 280 
 
 Lowe ». Bliss 17,20 
 
 u. Walker 192 
 
 Lowes V. Mazzaredo 192, 193 
 
 Lowndes v. Anderson 191, 500 
 
 Lowney v. Perham 126 
 
 Lowry ». Adams 482 
 
 I!. Murrell 119,389 
 
 Loyd I'. Lee 185 
 
 Lucas V. Waul 189, 193 
 
 Ludlow V. Van Rensselaer 158 
 
 Luqueer v. Proser 14, 59, 468, 470, 
 
 ■ 472 
 Lundie v. Robertson 275, 359, 362, 
 
 364 
 Lunning v. Brady 88 a 
 
 Lunt V. Adams 225 a 
 
 Lynch v. Reynolds 408, 423 
 
 Lynn v. Strong 48 a 
 
 Lyon V. Marshall 33 
 
 Lysaght v. Bryant 306 a 
 
 V. Walker 458 
 
 M. 
 
 Macartney v. Graham 445 
 
 Macintosh i'. Haydon 201 
 
 Mactier v. Frith 430 
 
 Macy V. Kendall 128 
 
 Magee v. Badger 197 
 Magruder v. Union Bank of 
 
 Georgetown 198, 241 
 
 Maillard v. Duke of Argyle 404 
 
 Maisonnaire v. Keating 96 
 
 Malbon v. Southard 120 
 
 Maiden Bank v. Baldwin 232 
 
INDEX TO CASES CITED. 
 
 ZXXl 
 
 Section 
 Male V. Roberts 407 
 
 Mallet u. Thompson 409,418,419, 
 
 425 
 
 Maltby v. Carstairs 424, 426 
 
 Manadue v. Kitchen 322 
 
 Manchester Bank v. Fellows 225 a, 
 
 312, 320, 322, 327 
 
 Maneely v. McGee 104, 438 
 
 Manhattan v. Reynolds 120 
 
 Maniort v. Roberts 121, 132 
 
 Manley v. Boycot 423 
 
 Mann v. Chandler 69, 70 
 
 V. Lent 187 
 
 V. Moore 346 
 
 Manning v. Hayes 351 
 
 Manrow v. Durham 59, 457 - 459, 
 
 468, 470, 478, 480, 484 
 
 Manufacturers' Bank v. Hazard 345 
 
 Manuf. Co. (Dutchess Cotton) v. 
 
 Davis 3 
 
 Manuf. & Mechanics' Bank v. 
 
 Winship 73 
 
 Many v. Beekman Iron Co. 69 
 
 Marchington v. Vernon 375 
 
 Mare v. Charles 65 
 
 Margesson v. Goble 415 
 
 Maraetson v. Aitken 364, 426 
 
 Manenthal u. Tavlor 476 
 
 Markl'e v. Hatfield 118, 502 
 
 Marlboro v. Southard 120, 123 
 
 Marlow v. Pitfield 79 
 
 Marsh v. Maxwell 303, 330, 332 
 
 V. Ward 57 
 
 Marshall v. Baker 328 
 
 V. Miller 88 a 
 
 V. Mitchell 281 
 
 V. Rutton 85, 86 
 
 Marston v. Allen 120 a, 137, 138, 178 
 
 Martel v. Tureauds 281 
 
 Martin v. Boyd 476 
 
 t;. Bank of the U. S. 448 
 
 V. Chauntry 17 
 
 V. Fales 146 
 
 V. Franklin 399 
 
 V. Hamilton 228 
 
 V. IngersoU 274, 275, 280, 
 
 321,361, 362 
 
 V. Long 264 
 
 V. Winslow 274, 275, 362 
 
 Marzetti v. Williams 489 
 
 Mason v. Franklin 231 
 
 V. Hunt 402 
 
 u. Morgan 87 
 
 V. Rumsey 73 
 
 Masters f. Barretto 16, 49 
 
 Section 
 
 Masters v. Ibberson 196, 197 
 
 V. Ibbettson 191 
 
 Mather v. Maidstone 379 
 
 Matheson's Administrator v. 
 
 Grant's Administrator 72 
 
 Mauran v. Lamb 125, 126, 246 
 
 Maxwell v. Campbell 189 
 
 V. Deare 309, 404 
 
 V. Planters' Bank 127 
 
 May V. Coffin 272, 275, 280, 361, 362 
 Mayhew v. Crickett 421, 485 
 
 V. Prince 71 
 
 Maynard v. Fellows 72 
 
 Mayo V. Moore 384 
 
 Mayor u. Johnson 111,449 
 
 Mc Arthur «. McLeod 10 
 
 McCaskill v. Ballard 191 
 
 McCaughey v. Smith 408 a 
 
 McCelney v. Noble 476 
 
 McClure v. Dunkin 263 
 
 McComb V. Thompson 476 
 
 McConnell v. Thomas 127 
 
 McCormick v. Trotter 18 
 
 McCorney u. Stanley 474 
 
 McCoy V. Gilmore 12 
 
 McCrary v. Carrington 104 
 
 MeCreary v. Bird 476 
 
 McCrummen v. McCrummen 322 
 McCubbin v. Patterson 88 a 
 
 McCulloch V. Eagle Ins. Co. 430 
 
 McDonald v. Bovering 427 
 
 McFarland v. Pico 225 a, 226, 298, 
 
 320 
 McGee v. Pronty 452 
 
 McGowan v. Bush 189 
 
 McGrudder 17. Bank of Washing- 
 ton 235,236,264,316,317,340 
 McGrudder v. Bank of George- 
 town 198, 241 
 McGuire v. Bosworth 476, 477 
 McHeeny v. Yokum 187 
 McHenry v. Duffield 71 
 w. Ridsely 127 
 McKee v. Boswell 232, 237 
 McKenzie v. Durant 225 
 McKesson v. Stansberry 196 
 McLain v. Waters 316 
 MdLanaham v. Brandon 316, 335 
 McLaren v. Watson's Ex'rs 59, 147, 
 457,470, 483,484 
 McLemore v. Powell 415 
 McMurray v. Taylor 104 
 McMurtrie v. Jones 316, 317, 335, 
 
 344 
 McNair v. Gilbert 106, 111 
 
xxxu 
 
 INDEX TO CASES CITED. 
 
 Section 
 McNairy v. Bell 288 
 
 McNeilage «. HoUoway 88, 89, 124, 
 
 306 
 ■McWilliamg v. Mason 197 
 
 Meacliam v. Dow 189 
 
 Mead v. Qngs 325, 326, 336 
 
 V. Small 180, 281 
 
 Meager v. Barker 6 1 
 
 Mechanics' Bank v. Griswold 281 
 Mechanics' Bank of Alexandria 
 
 V. Bank of Columbia 69 
 
 Mechanics' and Traders' Bank 
 
 V. Crompton 342, 343 
 
 Mecorney v. Standley 474 
 
 Medbury v. Hopkins 155 
 
 Meech V. Churchill 69, 472, 480 
 
 V. Smith 71 
 
 Meeker u. Jackson 111,448 
 
 Melledge v. Boston Iron Co. 109, 
 
 114,438,439 
 
 Mellen v. Race 501 
 
 Mellersh v. Bippen 351 
 
 Mellish V. Bawdon 208 
 
 V. Simeon 399 
 
 Mellon V. Croghan 228 
 
 Mendez v. Carreroon 106, 452 
 
 Merchants' Bank v. Birch 310 
 
 V. Elderkin 226, 
 
 243 
 
 V. Spicer 34 
 
 Mercer v. Cheese 448 
 
 V. Lancaster ' 343 
 
 Merritt v. Benton 297 
 
 V. Todd 208 
 
 Merwin v. Camp 295 
 
 Messenger v. Southey 350, 351, 353, 
 
 354 
 Metealf «. Richardson 341,350,353 
 Michael V. Myers 409, 415 
 
 Michaud v. Laogarde 237, 287 
 
 Mickles v. Colvin 196 
 
 Michigan St. Bank v. Leaven- 
 worth 416 
 Middleton v. Jerome 196 
 Miers v. Brown 335, 353 
 Miles V. Hall 341 
 V. Williams 124, 130 
 Millaudon v. Arnous ^13 
 Miller v. Austin 12 
 V. Berkley 485 
 V. Blackburn 88 a 
 V. Gaston 59, 133, 147, 468, 
 459, 468-470,480, 484 
 V. Hackley 275, 287, 361, 362 
 V. Hennen 135 
 
 Section 
 
 Miller v. Irvine 459 
 
 V. Race 113, 137, 191, 197, 
 
 382, 501 
 
 V. Thomson 16 
 
 D.Webb 111,448 
 
 Mills V. Bank of U. S. 265, 348, 349, 
 
 354 
 
 V. Beard 271 
 
 V. Rouse 361 
 
 V. Wyman 362 
 
 Milne V. Graham 1 73, 1 75 
 
 Miln-es v. Duncan 386 
 
 Minard v. Mead 70 
 
 Minet v. Gibson 86, 39 
 
 Minor V. Mechanics' Bank 127 
 
 Miranda v. City Bank 822 
 
 Mitchell V. Cross 825 
 
 V. Culver 87, 37 a, 122 
 
 V. Degrand 217, 325 
 
 Moffat V. Edwards 13, 27, 28 
 
 Moggridge v. Jones 187 
 
 Monawk Bank v. Broderick 220, 
 
 490, 492, 494, 496, 497, 498, 500 
 
 Moies V. Bird .58, 459, 473, 476, 477 
 
 Molton V. Cameron 101 
 
 Mondel v. Steele 187 
 
 Monroe v. Cooper 196 
 
 Montague d. Perkins 10,48, 122, 123 
 
 Montgomery «. Bridge 167 
 
 V. Tutt 228 
 
 Montgomery Bank v. Marsh 243, 
 
 343 
 
 Montillet v. Duncan 309 
 
 Montross v. Clark 191, 194, 195 
 
 Moodie v. Morrall 344 
 
 Moody V. Threlkeld 10, 33 
 
 Moore v. Anderson 33 
 
 V. Barr 326 
 
 V. Cross 459, 476 
 
 V. Manning 139, 142 
 
 V. Paine 3 
 
 «. Penn 11,56,115 6 
 
 V. Somerindyke 88 a 
 
 Morgan v. Bank of" New York 490 
 
 «. Davison 226 
 
 V, Jones 22 
 
 V. Reintzel 111, 448 
 
 V. Richardson 187 
 
 &c. V. Their Creditors 438 
 
 Morice (or Morris) i>. Lee 12, 59, 472 
 
 Morrill v. Codding 69 
 
 Morris v. Hasson 294, 343, 344 
 
 e. Hudson 294 
 
 V. Stacey 117 
 
 V. Walker 151, 480 
 
INDEX TO CASES CITED. 
 
 xxxm 
 
 
 Section 
 
 Morley v. Boothby 
 
 133, 458 
 
 Morrison v. Bailey 
 
 490 
 
 V. Currie 
 
 118 
 
 V. Welty 
 
 104, 408 a 
 
 Morse v. Earl 
 
 88, 89 
 
 «. Green 
 
 69 
 
 Morton v. Westcott 
 
 343 
 
 Moseley v. Graydon 
 
 123 
 
 V. Hauford 
 
 24 
 
 Moses V. Ela 
 
 205 
 
 Mossop V. Eaton 111, 446, 451 
 
 Motley V. Sawyer 88 a 
 
 Mott V. Hicks 69, 70, 146 
 
 Mottram v. Mills 246, 452 
 
 Mount Vernon Bank v. Holden 328 
 
 Muilman v. D'Eguino 208, 337, 338 
 
 Muldon V. Whitlook 104 
 
 Mule V. Brown 493 
 
 Mulherrin v. Hannum 228 
 
 MuUick V. Radakissen 208, 493 
 
 Munn V. Baldwin 324, 328 
 
 V. Commission Co. 74, 193 
 
 Munroe v. Cooper 196 
 
 Murdoek v. Carruthera 36 a 
 
 Murray v. Garret 111 
 
 V. East India Co. 74 
 
 V. Governeur 104, 404, 438 
 
 V. Judah 135, 418, 492, 496, 
 
 497, 498 
 
 V. King 357 
 
 V. Lardner 197 
 
 Musselman v. Cakes 33 
 
 Mussey v. Eagle Bank 494 a 
 
 Musson V. Lake 243 
 
 Mutford V. Walcott 178 
 
 Myrick v. Hasey 147, 471, 480, 484 
 
 N. 
 
 Nash V. Brown 
 
 187 
 
 V. Harrington 
 
 203 
 
 V. Nash 
 
 88,89 
 
 V. Russell 
 
 185 
 
 V. Skinner 
 
 476 
 
 Nashville Bank v. Bennett 
 
 343 
 
 Nason v. Dinsmore 
 
 48 a 
 
 National Bank ti. Eliot Bank 489 
 
 Nelson v. Corning 196 
 
 V. Dubois 133, 459, 463, 468, 
 
 473, 476, 477, 480 
 
 V. Nelson 120 a 
 
 Nevins v. Bank 312, 328 
 
 V. De Grand 138 
 
 V. Townsend ' 190 
 
 Section 
 
 Newbury v. Armstrong 458 
 
 N. E. Mar. Ins. Co. v. De Wolf 69 
 
 N. E. Bank v. Lewis 225 a 
 
 Newsome v. Bowyer 86- 
 
 New York State Bank v. Fletcher 104 
 
 New York Bank v. Gibson 489 
 
 Nicewanger v. Bevard 189 
 
 Nicholas v. Oliver 127 
 
 Nicholls V. Bowes 228' 
 
 V. Diamond 69 
 
 V. Webb 297 
 
 Nichols u. Fearson 193 
 
 V. Frothingham 28, 127 
 
 V. Goldsmith 243 
 
 V. McDowell 419 
 
 V. Norris 416, 418, 423, 426 
 
 Nicholson v. Chapman 411 
 
 V. Gouthit 276, 286, 288 
 
 V. Marders 343 
 
 V. Patton 197 
 
 V. Revill 408, 425, 435 
 
 Nickols V. Huntoon 187 
 
 Nightingale v. Barney 33, 185 
 
 V. Withington 79, 80 
 
 Nimiek v. Martin 224 
 
 Nisbet V. Smith 427 
 
 Noble V. Adams 188 
 
 V. His Creditors 413 
 
 Norris V. Aylett 407 
 
 V. Badger 452 
 
 V. Langley 192 
 
 North American Coal Co. v. Dy- 
 
 ett 418 
 
 North Bank v. Abbot 225, 228, 230, 
 
 232, 243 
 
 Norton v. Eastman 484, 486 
 
 V. Lewis 148, 271, 357 
 
 u. Pickering 268, 292 
 
 V. Waite 195 
 
 Nott V. Downing 308 
 
 Noxon V. De Wolf 120 
 
 Nugent V. Roland 20 
 
 O. 
 
 Oakey v. Beauvais 235 
 
 V. Boorman 457,459,470, 480 
 
 V. Johnston 457,474,476,480 
 
 Obbard v. Betham 187 
 
 O'Donnell v. Sweeney 48 a 
 
 Ogden V. Dobbin 228, 234, 243, 326 
 
 V. Glidewell 297 
 
 V. Raymond 71' 
 
 V. Saunders 135,159, 168, 215 
 
XXXIV 
 
 INDEX TO CASES CITED. 
 
 Section 
 
 Ohio Life and Trust Co. v. Mc- 
 
 Cague 327 
 
 O'Keefe w. Dunn 178,193 
 
 Oliver V. Houndlet 77 
 
 Ontario Bank v. Lightbody 502 
 
 V. Petrie 354 
 
 V. Worthington 195 
 
 Orear v. McDonald 241 
 
 Oridge v. Sherborne 224 
 
 Oriental Bank v. Blake 253, 319 
 
 Orono Bank v. Wood 208 
 
 Orr V. Maginnis 498 
 
 0. Union Bank 482, 490 
 
 Orrick v. Colston 138 
 
 Orvis V. Newell 58 
 
 Ory V. Winter 168, 172 
 
 Osborne v. McCure 225 a 
 
 V. Rogers 185 
 
 Osgood V. Pearsons 33 
 
 Otis V. Gibbs 265 
 
 u. Hussey 275 
 
 Otsego Co. Bank v. Warren 239, 278 
 
 Oulds V. Harseson 178 
 
 Overman v. Hoboken Bank 494 a 
 
 Owen V. Barnum 1 7 
 
 V. Barrow 246 
 
 V. Cawley 88 a 
 
 Owens V. Dickenson 85 
 
 Owensont;. Morse 104, 117, 119, 389, 
 
 404,405,438,500, 
 
 502 
 
 Owings V. Arnot 408 a 
 
 Oxford Bank v. Haynes 59, 133,421, 
 
 459,460,467,469, 
 
 471,474,476,480 
 
 V. Lewis 416 
 
 P. 
 
 Pack.«. Thomas 
 
 492 
 
 Packard v. Nye 
 
 70 
 
 V. Bichardson 
 
 459 
 
 Packer v. Wilson 
 
 459, 470 
 
 Page V. Hubbard 
 
 104 
 
 J?alen v. Lent 
 
 88 a 
 
 Palmer v. Grant 
 
 57, 468, 486 
 
 V. Hughes 
 
 227, 228 
 
 V. Pratt 
 
 22, 28 
 
 V. Richards 
 
 137 
 
 V. Stevens 
 
 71 
 
 V. Ward 
 
 20 
 
 V. Yarrington 
 
 155 
 
 Paradine u. Jane 
 
 259 
 
 Parish v. Intone 
 
 181,185 
 
 
 Section 
 
 Parke v. Kleeber 
 
 88 a 
 
 Parker v. Gordon 
 
 226 
 
 V. Kane 
 
 88 a 
 
 V. Norton 
 
 265 
 
 V. Riddle 
 
 128 
 
 V. Simond» 
 
 88 a 
 
 V. Tuttle 
 
 119 
 
 V. Willson 
 
 459 
 
 Park V. Page 
 
 225 a 
 
 Parkes v. Bates 
 
 264 
 
 Parks V. BriDkerhoff 
 
 470, 474 
 
 Parr v. Eliason 
 
 193 
 
 V. Jewell 
 
 180 
 
 Parson v. Gloucester Bank 41 9i 
 
 Partridge v. Colbv 59, 476 
 
 V. Davis 11, 121, 147, 148, 
 
 484 
 
 Pasmore v. North 45, 48, 122 
 
 Passmore v. Mort 69 
 
 Pate V. M'Clure 275 
 
 Patience v. Townley 258, 261, 262 
 
 Pattee ». Grady 48 a 
 
 Patterson v. Poindexter 12 
 
 Patton V. State Bank 111 
 
 Payne v. Cutler 195 
 
 Payson v. Whitcomb 228 
 
 Peabody v. Denton 111 
 
 V. Harvey 275, 362 
 
 Peacock v. Banks 166 
 
 V. Rhodes 138, 191, 192, 197 
 
 Pearsall v. Dwight 155, 156 
 
 Pearson v. Crallon 338, 343, 443 
 
 V. Garrett 22, 27 
 
 V. Stoddard 28, 476 
 
 Pease v. Rush 122 a 
 
 Peaslee v. Robbins 101 
 
 Peay v. Pickett 17 
 
 Peck V. Oilman 476 
 
 V. Hibbard 172 
 
 V. Regna 189 
 
 Peddicord v. Whittam 128 
 
 Peirse v. Irvine 476 
 
 Penn v. Glover 243 
 
 V. Poumeirat 276, 365 
 
 Penny v. Innes 128, 129 
 
 V. Parham 476 
 
 Pentz V. Stanton 69 
 
 Pepoon V. Stagg 12 
 
 Percival v. Frampton 186, 195 
 
 Perfect v. Musgrave 425 
 
 Perkins v. Barstow 133, 476 
 
 V. Catlin 476 
 
 I'. Cummings 190 
 
 V. Washington Ins. Co. 71 
 
 Perley v. Balch 187 
 
INDEX TO CASES CITED. 
 
 XXXV 
 
 Perrin v. Noyes 
 Perry v. Barrett 
 V. Green 
 Peto V. Reynolds 
 Pettee v. Prout 
 Pfiel V. Van Batenberg 
 Phelps V. Phelps 
 Phillip V. Paget 
 
 Section 
 
 196 
 
 476 
 
 281 
 
 16 
 
 120 a 
 
 106, 452 
 
 184 
 
 79 
 
 Phillips V. Astling 237, 251, 284, 460, 
 
 485 
 
 V. Cole 178 
 
 V. Gould 351 
 
 V. Smith 264 
 
 Philliskirk v. Pluckwell 87, 124, 126, 
 
 306 
 
 Philpot V. Bryant 253,413-416,419 
 
 Phoenix Ins. Co. u. Allen 1 7, 1 04, 1 1 7 
 
 Piatt V. Eads 6 
 
 Piekard v. Bankes 500 
 
 Pickin V. Graham 364 
 
 Picquet v. Curtis 228 
 
 Pierce v. Benjamin 265 
 
 V. Cate 205 
 
 V. Kennedy 476 
 
 V. Pendar 322 
 
 V. Whitney 49, 288, 291, 295 
 
 Pierson v. Boyd 315 
 
 V. Dunlap 26 
 
 V. Hooker 275, 362 
 
 V. Hutchinson 106, 446, 449 
 
 Pike 0. Street 146, 190 
 
 Pilkingtoh v. Commissioners 390, 391 
 
 Pillans t>. Mierop 195 
 
 Pillans and Rose v. Mierop and 
 
 Hopkins 195 
 
 Pillow V. Hardeman 345 
 
 Finder v. Nathan 336 
 
 Pine U.Smith 178 
 
 Pinkham v. Macy 297, 354 
 
 Pintard v. Tackington 106, 111, 404, 
 
 438 
 Piscataqua Bank v. Carter 210 
 
 Pitcher v. Livingston 264 
 
 Pitt V. Chappelow 80 
 
 V. Delamater 124 
 
 V. Smith 101, 188 
 
 Pitts V. Tilden 263 
 
 Planters' Bank v. Sellman 415 
 
 Pletts V. Johnson 132 
 
 Plimley v. Westley 128, 129 
 
 Plumer v. Lord 88 a 
 
 Pogue V. Clark 57 
 
 Polhill V. Walter 71 
 
 Pool V. McCrary 23 
 
 Poole V. Dicjis 324 
 
 Section 
 
 Poole iT. Smith 446 
 
 Pope V. Linn 48 a 
 
 Poplewell V. Wilson 186 
 
 Porter v. Boyle 322 
 
 V. Havens 189 
 
 V. Ingraham 409, 410 
 
 t'. Judson 264 
 
 V. McCollom 55 
 
 V. Nekervis 127 
 
 - V. Ray worth 276 
 
 V. Sayward 265 
 
 Porthouse v. Parker 239, 308 
 
 Posey V. Decatur Bank 244, 448 
 
 Potter V. Ray worth 362 
 
 Potts V, Bell 94, 97, 262 
 
 V. Reed 145, 146 
 
 Powel V. Roach 446 
 
 Powell ». Inman 189 
 
 V. Thomas 476 
 
 V. Waters 48, 194, 419 
 
 Power V. Finnic 143 
 
 V. Mitchell 271, 272, 312 
 
 Powers V. Fowler 458 
 
 V. Lynch 168 
 
 V. Russell 181 
 
 Pray v. Maine 180 
 
 Prentice v. Lane 195 
 
 Prentiss v. Danielson 281 
 
 V. Savage 161 
 
 Presbrey v. Williams 211 
 
 Prescott V. Brinley 188 
 
 Preston v. Dowson 316, 335 
 
 V. Jackson 192 
 
 Prestwick v. Marshall 70, 87, 306 
 
 Prettyman v. Short 118 
 
 Price V. Easton 362 
 
 V. Edmonds 413, 415, 418, 419, 
 
 421,422 
 
 ti. Neal 387 
 
 V. Price 446 
 
 V. Young , 253 
 
 Prideaux v. Collier 289, 365 
 
 Pring V. Clarkson 416 
 
 Pringle v. Phillips 113, 196, 197 
 
 Pritchard v. Scott 322 
 
 Pritt V. Fairclough 297 
 
 Prosser v. Edmonds 130 
 
 Prouty V. Roberts 193 
 
 Pryor v. Wright 227 
 
 Puckford V. Maxwell 104, 117, 404, 
 
 438, 502 
 
 Pugh u. The Duke of Leeds 211 
 
 Purchase v. Mattison 498 a 
 
 Putnam v. Lewis 104, 404 
 
 V. Sullivan 122, 237 
 
XXXVl 
 
 INDEX TO CASES CITED. 
 
 Qijin V. Sterne 
 
 Q. 
 
 R. 
 
 Section 
 476 
 
 418 
 
 Raggett V. Axmorr 
 
 Bahm V. The Philadelphia Bank 297 
 
 Raikes v. Todd 465 
 
 Ram bo v. Metz 36 
 
 Ramuz v. Crowe 10, 107, 446 
 
 Rand V. Hubbard 123 
 
 Randall v. Moon 422 
 
 K. Smith 312,316 
 
 V. Van Vetchen 69 
 
 Randlett v. Herren 104 
 
 Randolph v. Cook 225 a 
 
 Ranelaugh v. Champante 166 
 
 Ranger v. Cary 1 90 
 
 Rann V. Hughs 361 
 
 Ransom u. Mack 219, 220, 312, 316, 
 
 320, 322, 335, 344, 
 
 347-349, 354 
 
 V. Sherwood 476 
 
 Raphael v. Bank of England 197 
 
 Rawdon v. Redfield 316 
 
 Rawlinson v. Stone 123 
 
 Rawson v. Walker 24, 148 
 
 Rawstone v. Parr 57 
 
 Rjyburn v. Day 104 
 
 Read v. Bachelor 77, 79 
 
 V. Bank of Kentucky 297 
 
 u. McNulty 17,20 
 
 V. Wheeler 14 
 
 V. White 425 
 
 Reading v. Weston 193 
 
 Reakert v. Sandford 87 
 
 Reddick v. Jones 195 
 
 Reedy v. Seixas 348, 349, 354 
 
 Rees V. Abbott 57 
 
 ly. Berrington 427 
 
 !). Marquis of Headfort 188 
 
 V. Park 228 
 
 Reese v. Gordon 187 
 
 Reeve v. Park 228 
 
 Reid V. Morrison 236 
 
 V. Paine 343, 344 
 
 Renner u. Bank of Columbia 106, 
 
 111, 148, 448 
 
 Rey V. Simpson • 476 
 
 Reynolds v. Da vies 201 
 
 V. Douglass 274, 275, 362, 
 
 364 
 
 Rex V. Box 3, 9 
 
 V. Briggs 152 
 
 
 Section 
 
 Rex V. Randall 
 
 36, 37 
 
 Khea v. Renner 
 
 86 
 
 Rhett V. Poe 
 
 276, 284, 308 
 
 Rhodes v. Gent 
 
 227 
 
 V. Lindly 
 
 17 
 
 Rice V. Catlin 
 
 411 
 
 V. Gove 
 
 69,' 70 
 
 V. Stearns 
 
 145, 146 
 
 V. Wesson 
 
 207, 208 
 
 Richards v. Richards 22, 24, 87, 88, 
 
 126, 306 
 
 Richardson v. Lincoln 120 a, 146 
 
 V. Martyr 23 
 
 V. Sanborn 187 
 
 Richter v. Selin 48, 275, 278, 282, 
 
 361, 362 
 
 Ricketts v. Pendleton 236, 298 
 
 Rickford v. Ridge 493 
 
 Ricord v. Bettenham 96 
 
 Riddle v. Gage 187 
 
 V. Mandeville 302 
 
 Bideout v. Bristow 64, 186 
 
 Rider v. Hulse 88 a 
 
 Ridley v. Taylor 73 
 
 Rieman v. Fisher 118 
 
 Riggs V. Waldo 476 
 
 Ring V. Foster 1 2 
 
 Ripley u. Green 411 
 
 V. Greenleaf 416 
 
 Roach V. Ostler 1 6 
 
 Robbins v. Pinckard 320, 321, 324 
 
 Roberts u. Haskell ■ 117 
 
 V. Peake 22 
 
 V. Tucker 379, 380 
 
 Robertson v. Banks 63 
 
 V. Kensington 149 
 
 V. Smith 409 
 
 Robins v. Maidstone 1 91 
 
 V. May 22 
 
 Robinson D. Abell 469,476 
 
 V. Ames 208, 327 
 
 V. Bland 156, 166, 190 
 
 V. Blen 201, 265 
 
 V. Gould 186, 188 
 
 V. Hawksford 493 
 
 V. Hurlburt 104 
 
 <'. Read 117 
 
 V. Reynolds 86, 191 
 
 V. Yarrow 380 
 
 Robson V. Bennett 493 
 
 V. Curlewis 352 
 
 V. McGregor 352 
 
 V. Oliver 476 
 
 Roche V. Campbell 227 
 
 Rogers V. Bumfors 88 
 
INDEX TO CASES CITED. 
 
 XXXVll 
 
 Section 
 
 Rogers V. Crombie 265 
 
 V. Kneeland 470 
 
 V. Langford 500, 502 
 
 V. Stephens 276, 362, 364 
 
 Rogerson v. Hare 302 
 
 Rohde V. Proctor 307 
 
 Eolfe V. Caslon 186 
 
 V. Wyatt 418 
 
 Kolin V. Stewart 489 
 
 Rolt V. Watson 106, 451 
 
 Roosevelt v. WoodhuU 260 
 
 Rosa V. Brotherson 1 96 
 
 Roscow V. Hardy 303, 334, 338 
 
 Rose V. Clarke ,128 
 
 t). Park 171 
 
 Rosher v. Kieran 303 
 
 Ross u. Bedell 196 
 
 Rothschild !7. Barnes 317 
 
 w. Corney 178,491 
 
 V. Currie 176, 339 
 
 Routh V. Robertson 349 
 
 Rowan V. Odenheimer 349 
 
 Rowe V. Tipper 302, 329 
 
 V. Young 227, 229 
 
 Rowley v. Ball 106, 111, 445, 448 
 
 V. Stoddard 425 
 
 Roxborrough v. Messick 195 
 
 Ruggles V. Patten 228, 410, 422 
 
 Rukert V. Sanford 70 
 
 Rumball v. Ball 29, 201 
 
 Rundell V. Keeler 78 
 
 Runyon v. Mountfort 316 
 
 Rushworth v. Moore 298 
 
 Russell V. Brooks 87 
 
 V. Cook 186 
 
 V. Cronkhite 272 
 
 V. Hadduck 19B 
 
 V. Langstaffe 10, 48, 122, 201, 
 
 203,241,286,480 
 
 V. Moseley 458, 465 
 
 a. Phillips 25 
 
 V. Whipple 14 
 
 V. Wiggin 482 
 
 Rutland R. Co. v. (Dole 115 6 
 
 Ryan v. Chew 178 
 
 Ryland v. Brown 26 
 
 S. 
 
 Sabin v. Harris 
 Sackett v. Spencer 
 SafFord v. Wickoff 
 
 133 
 
 12 
 
 316, 335 
 
 Sage V. Wilcox 459, 480 
 
 Sainsbury v. Parkinson 3, 120 a, 121, 
 127, 137 
 
 Section 
 
 Salem Bank v. Gloucester Bank 379 
 
 Salisbury t>. Hale 
 Salter v. Burt 
 Samson v. Thornton 
 Samuell v. Howarth 
 Sanborn v. Neal 
 Sanderson v. Bowes 
 Sandford v, Dillaway 
 V. Norton 
 
 460 
 
 220, 489, 490 
 
 408, 476 
 
 485 
 
 69 
 
 227, 228 
 
 241, 286 
 
 197 
 
 Sands v. Clarke 203, 267, 268, 500 
 
 Sanford v. Mickles 
 V. Norton 
 Sanger v. Stimpson 
 Sargeant v. Morris 
 Sargent v. Appleton 
 Sasser v. Farmers' Bank 
 Saul V. Brand 
 
 125, 190 
 474, 477 
 128 
 459 
 400, 413, 422 
 328 
 322 
 
 Saunders v. Wakefield 458, 459 
 
 Saunderson v. Judge 234, 235, 3?8 
 V. Piper 21 
 
 Savage v. Mallory 192 
 
 V. Merle 143 
 
 Savings Bank of New Haven 
 
 V. Bates 1 78 
 
 Sawyer v. Vaughan 181 
 
 Sayeru. Frick 125,308 
 
 V. Wagstaff 389, 404, 438 
 
 Sayre v. Frick 
 
 i;. Flourney 
 Seafford v. Bulkly 
 Searpellini v. Atcheson 
 Schallenberger v. Nehf 
 Schermerhorn v. Loines 
 Schneider v. Schiffman 
 Schofield V. Bayard 
 Scholefield v. Eichelberger 
 Sehuchman v. Knoebell 
 Scofield V. Day 
 
 125, 239, 255 
 88 
 130 
 88 
 476 
 404 
 476 
 258 
 94, 262 
 187 
 166, 399 
 Scott V. Bevan 396 
 
 V. Gilmore 190 
 
 V. Lifford 194,*319, 320, 323, 
 324, 326 
 119, 389 
 16 
 
 Seabury v. Hungerford 133, 138, 
 472, 476, 477, 480 
 22 
 281 
 185 
 168, 391 
 183 
 459 
 246, 324 
 37 
 18 
 
 Scruggs V. Gass 
 Scull V. Edwards 
 
 Seacond v. Burling 
 Seacord v. Miller 
 Seago V. Deane 
 Searigh't V. Calbraith 
 Searing v. Tye 
 Sears v. Brink 
 Seaver v. Lincoln 
 Seay v. Bank of Tennessee 
 Seeley v. Bisbee 
 
xxxvm 
 
 INDEX TO CASES CITED. 
 
 Section 
 Selby V. Eden 235 
 
 Selden v. Washington 236 
 
 Seneca Co. Bank v. Neass 195, 297, 
 322,324, 343 
 Sentance v. Poole 101 
 
 Serle v. Norton 497 
 
 Settzer v. Colman 104 
 
 Seventh Ward Bank v. Han- 
 
 riek 325 
 
 Sewall V. Russell 325, 326, 335 
 
 Sexton V. Wood 408 
 
 Seymour ». McKay 476 
 
 V. Ley man 476 
 
 V. Van Slyck 128, 480 
 
 Sharrington v. Strotten 183 
 
 Sharp V. Bailey 268, 275, 276 
 
 V. Emmit 65 
 
 Shaver v. Ocean Co. 69 
 
 Shaw V. Croft 303 
 
 V. Pratt 410 
 
 V. Reed 230, 241, 243 
 
 V. Thompson 246 
 
 Shay lor u. Mix 312 
 
 Shearm v. Burnard 438 
 
 Shed V. Brett 225 a, 235, 238, 239, 
 
 243, 246, 247, 320, 322, 
 
 327, 328, 343 
 
 V. Pierce • 408, 409 
 
 Sheehy v. Mandeville 104, 404, 405, 
 
 409 
 Sheldon v. Benham 312, 322, 325, 
 
 329 
 
 Shelton v. Braithwaite 344, 351 
 
 V. Darling 69, 70 
 
 Shenk v. Robeson 476 
 
 Shepard v. Hall 320, 322, 327 
 
 V. Hawley 239, 255, 308, 
 
 329 
 
 Shepherd v. Chamberlain 226, 243 
 
 Sheppard v. Graves 45 
 
 V. Spates 220 
 
 Sherer v. Easton Bank 226, 243, 271, 
 
 276, 298 
 
 Sherman v. Conney 88 a 
 
 V. Roberts 48 a 
 
 Sherwood v. Roys 126, 246 
 
 Shillito V. Theed 192 
 
 Shirriff u. Wilks 73,188 
 
 Shook V. The State 415, 485 
 
 Shoomaker v. Roosa 186 
 
 Shortrede v. Cheek 458, 465 
 
 Shriner v. Keller 268 
 
 Shrivel v. Payne 12 
 
 Shuttleworth v. Stephens • 16 
 
 S\ce V. Cunningham 190 
 
 Section 
 
 Siddell V. Rancliffe 409 
 
 Sigourney v. Lloyd 143 
 
 V. Wetherell 485,' 486 
 
 Sill V. Leslie _ 476 
 
 Simmons v. Guttridge 444 
 
 Simonds v. Heard 70 
 
 Simpson v. Vaughan 12 
 
 V. White 298 
 
 Sinclair v. Lynch 354 
 
 Sistermans v. Field 196 
 
 Skelding v. Warren 190 
 
 Skofield V. Haley 460 
 
 Slacum V. Pomeroy 129, 172 
 
 Slater v. West 197 
 
 V. Sharp 229 
 
 Slawson w. Loring 69 
 
 Slocum V. Hooker 78 
 
 Small V. Smith 196 
 
 Smalley v. Edey- 104 
 
 V. Wight 120 
 
 Smallwood v. Vernon 128, 129, 480 
 
 Smedberg v. Simpson 192, 381 
 
 V. Whittlesey 381 
 
 Smedes v. Utica Bank 312, 320, 322, 
 
 327 
 Smith V. Aylesworth 226 
 
 V. Bank of Washington 225 a 
 V. Bartholomew 410 
 
 V. Becket 288, 413 
 
 V. Black 409 
 
 V. Boheme 18, 22, 27 
 
 V. Boulton 352 
 
 V. Braine 196 
 
 V. Bromley 427 
 
 V. Buchanan 169 
 
 V. Chandler 88, 102 
 
 V. Chester 379 
 
 V. Clark 139 
 
 V. De Witts 195 
 
 V. Finch 476 
 
 V. Fisher 316 
 
 V. Gibbs 297 
 
 V. Hawkins 419 
 
 V. James 423 
 
 V. Kendall 3, 9, 17, 41, 375 
 V. Kessler 476 
 
 V. Knox 194, 401, 409, 420, 
 423 
 V. Little 327 
 
 V. Lusher 72 
 
 V. Mace 408 a 
 
 V. M'Clure 36, 142 
 
 V. Marsack 80, 87, 123, 124 
 V. Mead 155 
 
 V. Mercer 135, 380 
 
INDEX TO CASES CITED. 
 
 XXXIX 
 
 Section 
 
 Smith V. Mersack 80, 151 
 
 V. Mullet 303, 320, 323, 324, 
 
 325, 331 
 
 V. Nightingale 20 
 
 V. Owens 104 
 
 ». Pedley 87 
 
 V. Pickering 120 
 
 V. Prestige 381 
 
 V. Eiehards 189 
 
 V. Eobinson 228 
 
 V. Rockwell 111,244, 445,448 
 
 V. Runnells 381 
 
 V. Shaw 399 
 
 V. Smith 104, 169, 194 
 
 17. Thatcher 307 
 
 V. Whiting 347, 349, 364 
 
 V. Winter 426 
 
 «. Wyckoflf" 122 
 
 Smyth V. Hawthorn 316, 328 
 
 Snaith v. Mingay 122 
 
 Sneed v. Hughes 379, 380 
 
 Snow V. Peacock 197 
 
 V. Perkins 349 
 
 V. Saddler 197 
 
 Snyder v. Oatman 120, 476 
 
 Soares v. Glyn 142 
 
 Sohier v. Loring 416, 426 
 
 Solarte v. Palmer 297, 348, 350, 351, 
 
 353 
 Solomon v. Turner 187 
 
 Solomons u. Bank of England 191, 
 197, 501 
 Sother V. Rogers 298 
 
 Southard v. Porter 120 
 
 South Carolina Bank v. Case 73 
 Southwark Bank v. Gross 408 a 
 
 Southwick V. Ely 381 
 
 Sowerby v. Brooks 375 
 
 Sparrow v. Carruthers 86 
 
 V. Chisman 187, 190 
 
 Spencer v. Bank of Salina 316, 344, 
 
 345 
 
 V. Ballou 299 
 
 V. Sterling 337 
 
 Spering's Appeal 195 
 
 Sperry v. Wilcox 181 
 
 Spicer v. Norton 542 
 
 Spies V. Gilmore 236, 264, 476 
 
 Spittle V. Lavender 69 
 
 Spooner v. Rowland 104 
 
 Spring V. Lovett 148 
 
 Springfield Bank v. Merrick 18 
 
 Staats V. Hewlett 458 
 
 0. Ten Eyck 264 
 
 Stadt V Lill 458,"459 
 
 Section 
 
 St. Albans Bank v. Dillon 189 
 
 St. John V. Homans 493 
 
 V. Roberts 208 
 
 Stafford v. Yeates 302, 303, 419 
 
 Standage v. Creighton 362, 363 
 
 Stalker v. McDonald 195 
 
 Stanton v. Blossom 303 
 
 Stanwood v. Stanwood 88 
 
 Staples V. Franklin Bank 225 a, 226 
 
 V. Okines 287 
 
 Starke II. Cheeseman 16 
 
 Starr v. Torrey 1 78 
 
 State Bank v. Fearing 380 
 
 V. Hawkins 419 
 
 V. Hennen 235 
 
 V. Kurd 232, 234, 235 
 
 V. Slaughter 239 
 
 u. Thompson 48 a 
 
 V. Winter 426 
 
 Stantenberg v. Lybrand 189 
 
 Stead V. Liddard 458, 459 
 
 Stebbing v. Spicer 120, 121 
 
 Stedman v. Gooch 234 
 
 Steele v. Hoe 465 
 
 Steers v. Lashley 190 
 
 Stein V. Yglesias 178 
 
 Steinhart v. Boher 197 
 
 Steinman v. Magnus 410, 426 
 
 Stephens v. Foster 197 
 
 u. Wilkinson 187 
 
 Stephenson v. Dickson 325 
 
 Sterling v. Marietta and Susq. 
 
 Trading Co. 126,246,419 
 
 V. Peet 264 
 
 Stetson V. Patten 71 
 
 Stevens v. Beals 87 
 
 V. Blunt 22, 29 
 
 V. Bruce 190 
 
 V. Lynch 275, 361, 419 
 
 V. Strang 40 
 
 V. West 294 
 
 Stevenson v. Lynch 860 
 
 Stewart v. Donelly 18 
 
 V. Eden 264, 310, 315, 335, 
 
 408, 416, 419, 426 
 
 V. Jenkens 88 a 
 
 V. Kennett 301 
 
 V. Lee 145 
 
 V. Lord Kirkwall 85 
 
 V. Smith 120 
 
 V. Steward 362 
 
 V. Street 25 
 
 Stillwell V. Robb 228, 230 
 
 Stirling v. Forrester 425 
 
 Stock V. Mawson 427 
 
xl 
 
 INDEX TO CASES CITED. 
 
 
 
 Section 
 
 
 Section 
 
 Stocken v. Collins 
 
 
 328, 352 
 
 Taylor v. Page 
 
 192 
 
 Stockman u. Parr 
 
 
 349, 352 
 
 V. Shelton 
 
 63 
 
 Stoddard v. Kimball 
 
 
 191 
 
 V. Snyder 236, 
 
 237, 264 
 
 Stokes V. Lewis 
 
 
 185 
 
 ..■. Wilson 
 
 493 
 
 Stone V. Clough 
 
 
 106 
 
 V. Young 
 
 • 493 
 
 V. Dennison 
 
 
 77, 78 
 
 Tebbetts v. Dowd 
 
 274, 275 
 
 V. Freeland 
 
 
 39 
 
 Temple v. PuUen 
 
 10 
 
 V. White 
 
 
 408 a 
 
 V. Seaver 
 
 125 
 
 Stoney v. Beaubien 
 
 
 476 
 
 Ten Eyck v. Brown 
 
 484 
 
 Storm V. Stirling 
 
 
 33 
 
 V. Vanderpoel 
 
 186 
 
 Stout V. Jackson 
 
 
 264 
 
 Tenny v. Prince 58, 133, 
 
 138, 459, 
 
 Strange v. Ellison 
 
 
 118 
 
 467,471,474 
 
 476,477 
 
 V. Price 
 
 350 
 
 351, 353 
 
 Terrell v. Smith 
 
 403, 409 
 
 V. Wigney 
 
 
 197 
 
 Terry v. Parker 
 
 268 
 
 Sturdy V. Henderson 
 
 
 207, 217 
 
 Thackeray v- Blackett 244, 
 
 290, 498 
 
 Sturtevant v. Ford 
 
 
 194 
 
 Thame v. Brait 
 
 422 
 
 Styles V. Wardle 
 
 
 45 
 
 Thatcher v. Dinsmore 63 
 
 104, 438 
 
 Suckley v. Furse 
 
 
 416 
 
 ' V. Winslow 
 
 126, 246 
 
 Sully V. Frean 
 
 
 186 
 
 Thayer i). King 
 
 244, 448 
 
 Sumner v. Brady 
 
 
 190 
 
 Thicknesse v. Bromilo-w 
 
 73 
 
 V. Gay 
 
 
 468 
 
 Thomas v. Bishop 
 
 65 
 
 V. Jones 
 
 
 48 a 
 
 0. Breedlove 
 
 357 
 
 Sutton V. Toomer 
 
 
 224 
 
 V. Courtney 409 
 
 416, 427 
 
 Swan V. Steele 
 
 
 73 
 
 V. Davies 
 
 460 
 
 Swasey v. Vanderheyt 
 
 en 
 
 78 
 
 V. Jennings 
 
 476 
 
 Sweeting v. Fowler 
 
 
 120, 121 
 
 p. Eoosa 
 
 17 
 
 Sweetser v. French 1 2 
 
 ,58, 
 
 128, 133, 
 
 V. Shoemaker 
 
 225 o 
 
 
 
 194 
 
 V. Todd 
 
 389 
 
 Swetland v. Creigh 
 
 
 18 
 
 Thompson v. Cook 
 
 228 
 
 Swett V. Patrick 
 
 
 264 
 
 V. Gibson 
 
 178 
 
 Swift V. Stevens 
 
 
 111 
 
 u. Hale 
 
 190 
 
 u. Tyson 178, 
 
 186 
 
 187, 195 
 
 V. Powles 
 
 166 
 
 Swinyard v. Bowes 
 
 284, 
 
 357, 438, 
 
 V. Robertson 
 
 139 
 
 
 
 485, 500 
 
 V. Sheppard 
 
 193, 196 
 
 Sylvester v. Downer' 
 
 134, 
 
 473,476, 
 
 V. Wil iams 
 
 341 
 
 
 
 477 
 
 Thomson v. Ketcham 166, 
 Thornton v. Williams 
 
 168, 407 
 104 
 
 T. 
 
 
 
 V. Wynn 271, 
 358- 
 
 274, 275, 
 -360,362 
 
 Taft V. Sergeant 
 
 
 78 
 
 Thorpe v. Craig 
 
 298 
 
 Talbot V. Clark 
 
 
 325, 327 
 
 V. Peck 
 
 320 
 
 V. Gay 
 
 
 460 
 
 Thrasher v. Ely 
 
 460 
 
 Tanner v. Hall 
 
 
 72 
 
 Thurston v. McKown 
 
 190, 191 
 
 Tapley v. Martens 
 
 
 117 
 
 Tiernan v. Woodruff 
 
 415 
 
 Tappan v. Ely 
 
 
 148, 149 
 
 Tillman v. Allies 
 
 132 
 
 Tassell v. Lewis 
 
 
 213, 500 
 
 V. Wheeler 133, 
 
 476, 477, 
 
 Tate V. Hilbert 
 
 187, 498 a 
 
 
 480 
 
 Taunton Bank v. Richardson 148, 
 
 Timmis v. Gibbins 
 
 119,389 
 
 271, 279, 291, 
 
 357 
 
 359, 364 
 
 Tindal v. Brown 225 a, 301 
 
 302,324, 
 
 Taylor v. Binney 147, 
 
 149 
 
 471,484 
 
 825 
 
 348, 353 
 
 V. Croker 
 
 
 80 
 
 Tinker v. M'Cauley 
 
 484 
 
 V. Dobbins 
 
 
 34 
 
 Tippets V. Walker 
 
 70 
 
 V. Jones 
 
 
 275, 362 
 
 Titus V. Lady Preston 
 
 213 
 
 V. Mather 
 
 
 178, 190 
 
 Tobey v. Berlv 
 
 274 
 
 V. M'Cune 
 
 
 134 
 
 TobJ' V. Barber 104 
 
 404, 438 
 
INDEX TO CASES CITED. 
 
 xli 
 
 Section 
 
 Tcby V. Maurean 240, 241, 263 
 
 Tombeckbee Bank v. Stratton 416, 
 
 423 
 
 Tooker v. Bennett 427 
 
 Torrey.«. Baxter 104 
 
 V. Fisk 122, 123 
 
 V. Foss 111, 271 
 
 Touro V. Cassin 156 
 
 Tourtellot v. Rosebrook 181 
 
 Tower v. Appleton Bank 111 
 
 V. Durell 275, 278, 282, 365 
 
 Townsend v. Bank of Bauine 119 
 
 I). Derby 51 
 
 V. Hubbard 69 
 
 V. Lorain Bank 348, 349, 
 
 353, 354 
 
 Townsley v. Springer .324, 325 
 
 «. Sumrall 186, 195 
 
 Tracy v. Keith 88 a 
 
 Trasher v. Ely 460 
 
 V. Everhart 155, 157 
 
 Trask v. Martin 224 
 
 Trecothick w. Edwin 227 
 
 Treuttel v. Barrandou 143, 146 
 
 Triggs V. Newnham 226 
 
 Trinibey v. Vignier 140, 155, 170, 
 
 174, 175 
 
 Trimble v. Thome 274, 275, 362, 419 
 
 True V. Collins 324, 345 
 
 V. Fuller 484 
 
 V. Thomas 493 
 
 Truesdell v. Thompson 132 
 
 Truman p. Hurst 78 
 
 Trustees in Hanson v. Stetson 148 
 
 Tuck «. Tuck 178 
 
 Tucker v. Moreland 77 
 
 V. Morrill 196 
 
 ». Smith 190 
 
 Tuckerman v. Newhall 408, 425 
 
 Tunno v. Lague 260 
 
 Tunstall «. Walker 316 
 
 Turner «. Hayden 227,235 
 
 r. Leach 356 
 
 ^. Leech 303, 330, 332, 334, 
 
 388 
 
 0. Nye 88 a 
 
 Tuttleo. Bartholomew 122, 123, 484 
 
 V. Standish 108 
 
 Twopenny v. Young 409, 416, 425 
 
 Tye V. Gwynne 187 
 
 Tyler v. Binney 484 
 
 Tyner v. Stoops 104 
 
 U. 
 
 Udal V. Walton 
 
 498 a 
 
 
 
 Section 
 
 Ulen V. Kittredge 58, 459, 
 
 467, 
 
 471, 
 
 
 473, 474 
 
 476 
 
 477 
 
 Ungar v. 
 United S 
 
 Boas 
 
 189 
 
 193 
 
 (tates V. Barker 
 
 312, 
 
 324, 
 
 
 325 
 
 341 
 
 452 
 
 
 V. Buford 
 
 41 
 
 130 
 
 
 V. Cushman 
 
 409 
 
 421 
 
 
 V. Davis 
 
 325 
 
 326 
 
 
 V. White 
 
 41 
 
 130 
 
 U. States Bank v. Bank of Geor 
 
 
 
 gia 
 
 
 379 
 
 
 t'. Binney 
 
 72, 73 
 
 
 V. Goddard 303, 
 
 326, 
 
 
 
 
 330 
 
 
 w. Lyman 115 6 
 
 408 
 
 
 V. Smith 
 
 228 
 
 ,230 
 
 Union Bank of Louis, v. B 
 
 rown 
 
 342 
 
 Union Bank v. Coster 
 
 458 
 
 482 
 
 
 V. Hyde 148, 
 
 272, 
 
 291, 
 297 
 
 
 U.Willis 239, 
 
 255, 
 
 474, 
 476 
 
 Unseld I 
 
 . Stephenson 
 
 
 178 
 
 Upham t 
 
 . Prince 128, 147, 
 
 148, 
 
 149, 
 
 
 471 
 
 480 
 
 484 
 
 Usher i). 
 
 Dauncey 
 
 48 
 
 122 
 
 Uther V. 
 
 Rich 109, 113, 
 V. 
 
 196, 
 
 197, 
 382 
 
 Vallette 
 
 V. Mason 
 
 191 
 
 195 
 
 Vallett t 
 
 . Parker 
 
 
 196 
 
 Valentine v. Foster 
 
 
 181 
 
 Vance v 
 
 Wells 
 
 
 87 
 
 Vancleef v. Therasson 104, 438 
 
 Van Derveer v. Wright 274, 275, 
 
 374 
 Van Doncket v. Thellusson 226 
 
 Van Raugh v. Van Arsdaln 169 
 Van Reimsdyk v. Kane 156 
 
 Van Schaick v. Edwards 156 
 
 Van Straphorst v. Pearce 129 
 
 Van Steenburgh v. Hoffman 87 
 
 Van Vechten v. Pruyn 322 
 
 Van Waat v. Woolley 284, 357, 485 
 Van Winkle v. Kitchum 78 
 
 Varner v. Nobleborough 1 04 
 
 Vathir v. Zsme 196 
 
 Vaughan v. Fuller 276, 362 
 
 Veazie Bank v. Winn 493 
 
 V. Paulk 226 
 
 Vent V. Osgood 77 
 
 Vernon v. Boverie 389 
 
 V. Hankey 498 a 
 
xlii 
 
 INDEX TO CASES CITED. 
 
 
 Section 
 
 Vinton v. King 
 
 178 
 
 Violett V. Patton 
 
 10, 122 
 
 Von Hermert v. Porter 
 
 165 
 
 Vore V. Hurst 
 
 476 
 
 w. 
 
 Wade V. Withington 408 a 
 
 Wagnam v. Bend 132 
 
 Wagner v. Kenner 213 n 
 
 Wain V. Bailey 106, 446, 451 
 
 V. Warlters 458, 459, 467 
 
 Wainwright v. Webster 119, 389 
 
 Wait V. Brewster 104 
 
 Waite V. Foster 146 
 
 Waithman v. Elsee 14 
 
 Walker v. Bank of Montgomery 423 
 
 V. McDonald 139, 207 
 
 U.Perkins 190 
 
 V. B.eaniy 88 a 
 
 V. Roberts 12 
 
 V. The Bank 71 
 
 V. Tunstall 316 
 
 AVallace v. Agry 104, 339 
 
 V. M'Connell 228, 230 
 
 Walter v. Haynes 345 
 
 u. Kirk 226 
 
 Walters v. Armstrong 187 
 
 V. Brown 312 
 
 V. Furnace 205 
 
 Walton V. Dodson 484 
 
 V. Mascall 460 
 
 V. Watson 268 
 
 Walwyn v. St. Quintin 316, 415, 419, 
 
 422 
 
 Ward V. Evans 117, 389 
 
 V. Howe 104 
 
 V. Johnson 408, 409, 425, 427, 
 
 727 
 
 Warden v. Arell 168, 391 
 
 V. Howell 195 
 
 Wardens v. Moore 16 
 
 Warder v. Arell 390 
 
 I'. Tucker 268, 280, 288, 361, 
 
 362 
 
 Wardner v. Thurlo 263 
 
 Wardwell v. Howell 195 
 
 Ware v. Street 119 
 
 V. Weathnall 264 
 
 Warren v. AUnut 228 
 
 w. Oilman 327 
 
 V. Lynch 55, 195 
 
 V. Whitney 181 
 
 Warren Bank v. Parker 226 
 
 SectioQ 
 
 Warrender u. Warrender 155,158 
 
 Warrington v. Furbor 284, 458, 460, 
 
 484, 485, 500 
 
 Warwick v. Bruce 78 
 
 V. Cairn 186 
 
 Wart V. WooUey 485 
 
 Wash. Co. Mut. Ins. Co. v. Miller 22 
 
 Wathen v. Blackwell 352 
 
 Watkins v. Crouch 228 
 
 V. Hill 104, 438 
 
 t). Maule 120,123 
 
 Watson V. Hust 476 
 
 V. Poulson 490 
 
 Watson's Ex'rs v. McLaren 133, 458, 
 
 465, 480, 484 
 
 Way V. Kichardson 120 a 
 
 V. Sperry 181 
 
 Waynam v. Bend 132 
 
 Weakley v. Bell 343 
 
 Webb V. Fairmaner 225 a 
 
 V- Plummer 161 
 
 Webster v. Cobb 476 
 
 V. Sanborn 192 
 
 Weed V. Clark 459, 465 
 
 V. Houten 228 
 
 V. Van Houten 228 
 
 Welch V. Lindo 146, 452 
 
 Weld V. Passamaquoddy Bank 127, 
 
 413 
 
 Wells V. Brigham 3 
 
 V. Girling 427 
 
 V. Jackson 476 
 
 Welsh V. Barrett 297 
 
 Wemple v. Dangerfield 324 
 
 Wennall v. Adney 185 
 
 Wescott V. Price 425 
 
 Westfield u. Bralev 119 
 
 Wharton u. Wright 315,317 
 
 Wheaton v. Wilmarth 349 
 
 Wheatley v. Williams 12 
 
 Wheeler' u. Field 236 
 
 V. Guild 191 
 
 Wheelwright v. Sylvester 189 
 
 Whiston V. Stodder 155, 157 
 
 Whitaker v. Bank of England 226 
 
 V. Edmonds 196 
 
 V. Morris 364 
 
 M'^hitcomb v. Williams 104 
 
 White V. Englehard 297 
 
 V. Hass 408 a 
 
 V. Hildreth 67, 127, 137 
 
 V. Hopkins ■ 422, 423 
 
 0. Howland 59, 459, 468, 480 
 
 V. Led wick 51 
 
 V. Low 128 
 
INDEX TO CASES CITED. 
 
 xliii 
 
 
 Section 
 
 White V. Nibling 
 
 178 
 
 V. North 
 
 12 
 
 V. Richmond 
 
 18 
 
 V. Skinner 
 
 71 
 
 V. Springfield Bank 
 
 195 
 
 V. Stone 
 
 467 
 
 Whitehead v. Walker 
 
 178, 190 
 
 Whiteman v, Childress 
 
 18 
 
 Whiteside v. McGrath 
 
 189 
 
 Whiting V. Walker 
 
 297 
 
 Whitney ^r. Dutch 
 
 77 
 
 V. Goin 
 
 104 
 
 Whittier v. Graffam 
 
 237 
 
 Whittlesey v. Dean 198, 320, 324 
 
 Whitwell !). Brigham 226,411 
 
 V. Johnson 111, 232, 243, 
 
 324, 325 
 
 V. Kennedy 265 
 
 Wiffin V. Roberts 190, 191 
 
 Wiggin V. Bush 197 
 
 V. Tudor 425 
 
 Wiggle V. Thompson 226 
 
 Wiggles worth v. Dallison 161 
 
 Widgery v. Munroe 237 
 
 Wilbour V. Turner 132 
 
 Wilcox V. Hunt 155 
 
 V. McNutt 312 
 
 V. Routh 307 
 
 Wild u. Passamaquoddy Bank 127 
 
 V. Rennards 228 
 
 V. Volkenburg 227 
 
 Wilder v. Seeley 107, 111, 482 
 
 Wilkes V. Jacks 276, 362 
 
 Wilkins v. Jadis 226 
 
 Wilkinson v. Adams 353 
 
 ■V. Henderson 310 
 
 V. Sargent 120, 384 
 
 Wilks V. Back 68, 73 
 
 Willard v. Moies 122 a 
 
 Willetts V. Phoenix Bank 488, 491 
 
 Williams ii. Bank of U. States 235, 
 
 238, 307, 312, 315, 316, 
 
 322, 341 
 
 V. Cheney 192 
 
 V. Granger 480 
 
 V. Jarnian 404 
 
 V. Little 186, 195 
 
 V. Putnam 297 
 
 V. Sims 18 
 
 V. Smith 191, 195, 324 
 
 u. Wade 171 
 
 V. Waring 49, 201 
 
 Williamson v. Bennet 23 
 
 V. Watts 78 
 
 Willings V. Consequa 155 
 
 Section 
 Willis V. Green 239, 255, 308, 310, 
 
 329 
 
 Willison V. Patterson 94, 262 
 
 Wilson V. Foot 421 
 
 V. Henderson 37 
 
 C.Holmes 126,143,178 
 
 V. Huston 363 
 
 V. Jarmon 404 
 
 V. Lazier 172, 196 
 
 V. Ralph 128 
 
 u. Senier 205,309,316,317 
 
 V. Swaybey 302, 803 
 
 V. Williman 225 a 
 
 Windham Bank v. Norton 328 
 
 Wingo V. Dowell 17 
 
 Winship V. Bank of U. States 72 
 
 Winslow V. Boyden 47 
 
 Winter v. Walter 88 a 
 
 Wintle V. Crowther 73, 187 
 
 Wise V. Charlton 1 7 
 
 Wiseman v. Lyman 104, 405 
 
 Wood V. Benson 465 
 
 V. Bodwell 438 
 
 V. Brown 362 
 
 V. Day 305 
 
 V. Fen wick 77 
 
 V. Goodridge 69 
 
 V. Jefferson Co. Bank 413, 
 
 416 
 
 V. Mullen 213 a, 228 
 
 V. Mytton 16 
 
 V. Neeld 343 
 
 Woodcock V. Houldsworth 328 
 
 Woodes V. Dennett 69, 71, 72 
 
 Woodfolk V. Leslie 1 2 
 
 Woodford v. Dorwin 45 
 
 V. Whiteley 446 
 
 WoodhuU V. Holmes 196 
 
 Woodin V. Foster 341 
 
 Woodruff V. Merchants' Bank of 
 
 City of New York 488, 489 
 
 Woods V. Ridley I6 
 
 Woodward v. Genet 12 
 
 V. Winship 73 
 
 Wooley V. Clements 220 
 
 Wolcott V. Van Santvoord 228 
 
 Wolfe V. Jewett 23 7 
 
 Worcester Bank M. Wells 171 
 
 Worcester Co. Bank v. Dorches- 
 ter & Milton Bank 196, 197 
 Word V. Mytton I6 
 Wordbridge u. Brigham 211,230, 
 
 243 
 
 V. Spooner 24, 25, 148 
 
 Worden v. Dodge 25 
 
xllT 
 
 INDEX TO CASES CITED. 
 
 Worley v. Harrison 
 
 Wright V. Hay 
 V. Hart 
 V. Morse 
 V. Shawcross 
 
 V. Simson 
 
 V. Wright 
 AVyatt V. Buliner 
 
 V. Campbell 
 Wyer v. Dorchester & Milton 
 
 Bank 
 Wyman v. Adams 
 Wynn v. Alden 
 Wynne v. Jackson 
 
 Section 
 
 22, 28 
 
 149 
 
 18 
 
 476 
 
 320, 321, 324, 
 
 325, 331 
 
 427 
 
 86 
 192 
 192 
 
 196 
 
 205 
 
 349, 350, 354 
 
 158 
 
 Y. 
 
 Section 
 
 Yale V. Dederer 88 a 
 
 Yarborough v. Bank of England 152 
 
 Yates V. Hall 96 
 
 V. Nash 35 
 
 V. Thomson 158 
 
 Yeates v. Grove 25, 255 
 
 Yeatman v. CuUen 339 
 
 V. Erwin 343 
 
 Yingling v. Kohlhass 44 
 
 Youngu. Adams 18,118,119,389 
 
 V. Bryan 297 
 
 V. Grote 490 
 
 V. Lee 195, 349, 352 
 
 Yrisarri v. Clement 166 
 
COMMENTARIES 
 
 PROMISSORY NOTES 
 
 CHAPTER I. 
 
 NATURE AND REQUISITES OF PROMISSORY NOTES. 
 
 § 1. A Promissory Note may be defined to be a written 
 engagement by one person to pay another person, therein 
 named, absolutely and iinconditionally, a certain sum of 
 money at a time specified therein.^ The definition given by 
 Mr. Justice Blackstone is, that Promissory Notes, or notes of 
 hand, are a plain and direct engagement in writing to pay a 
 sum specified at a time limited therein, to a person therein 
 named, or sometimes to his order, or often to the bearer at 
 large.^ Perhaps this definition may be thought faulty in not 
 stating that the engagement is to be absolute and uncondi- 
 tional. Mr. Justice Bayley more succinctly states that a Prom- 
 issory Note is a written promise for the payment of money 
 at all e^nts.^ Mr. Chancellor Kent follows the definition of 
 .Mr. Justice Bayley;* and, perhaps, each is open to the ob- 
 jection, that while it seeks brevity it is incomplete, as it does 
 
 ' See Thomson on Bills, ch. 1, p. 1 (2d edit.). 
 
 ' 2 Black. Coram. 467 ; Kyd on Bills, p. 18 (3d edit.), follows the defini- 
 tion of Blackstone ; and Chitty, in substance, adopts it. Chitty on Bills, 
 548 (8th edit. 1833). See Thomson on Bills, ch. 1, p. 1. 
 
 ' Bayley on Bills, ch. 1, p. 1 (5th Loudon edit.) ; Smith on Merc. Law, 
 184 (3d edit.). 
 
 * 3 Kent, Lect. 44. p. 74 (5th edit.). 
 1 
 
2 PEOMISSOBY NOTES. [CHAP. I. 
 
 not state that the promise is made bj one person to pay the 
 money to another person specified.^ 
 
 § 2. The definitions of a Promissory Note, to be found in 
 the foreign law, do not essentially differ (as might reasona- 
 bly be supposed) from that in the Common Law.^ Prom- 
 issory Notes are, however, distinguished into various classes 
 in France, the principal of which are Notes not negotiable, 
 called Les Billets Simples, and those which are negotia- 
 ble, which are called Les Billets d Ordre, or Billets au Por- 
 teur? The former are treated as mere acknowledgments of 
 a debt, with a promise to pay it, answering very nearly to 
 our Due Bill, and they do not carry with them the ordinary 
 privileges annexed to negotiable Notes.* Still, however, Les 
 Billets Simples are assignable.^ Heineccius designates a 
 Promissory Note by the name of Ghirographum (borrowing 
 the word from the Roman Law), or Cambium Proprium; as 
 to which he says : " Quum itaque in cambio proprio duiB 
 tantum personse inter se, debitor et creditor, contrahant, 
 necesse est, ut uterque duarum personarum vicem sustineat, 
 adeoque debitor se simul trassantem, simul, acceptantem ; 
 creditor vero simul remittenteiii, simul praesentantem eSse 
 fingat." ^ He manifestly here refers to a negotiable Promis- 
 sory Note ; for he immediately adds : " Quamvis ergo ejus 
 modi litterse cambiales vere sint Chirographa, cambiorum 
 schemate induta : tamen ideo permagni momenti sunt, quod 
 1) uti alia cambia possunt indossari, 2) facillime prsescri- 
 
 ' See Brown v. Gilman, 13 Mas3. 158. 
 
 ' Pothier, De Change, n. 216. 
 
 « Merlin, Repertoire, BiUeti, § 1 (edit. 1825) ; Id. Ordre Billets u, § 
 1 ; Savary, Le Parfait Negociant, Tom. 1, p. 888 ; Pothier, De Change, 
 n. 216-218; Pardessus, Droit Comm. Tom. 2, art. 343, 477, 478; Chitty 
 on Bills, oh. 5, p. 181 (8th edit. 1833) ; Jousse, Sur L'Ord. de 1673, tit. 6, 
 p. 126 ; Savary, Le Parfait Negoc. Tom. 1, Pt. 1, Liv. 3, ch. 7, pp. 195, 
 196, 200, 201 ; Nouguier, Des Lettreg De Change, Tom. 1, Liv. 4, § 1, pp. 
 492, 493, 496, 498; Id. § 2, p. 613; Code de Comm. art. 138, 637, 638. 
 
 * Ibid. 
 
 » Story on Bills, § 19 ; post, § 15. 
 
 " Heinecc. de Camb. cap. 2, § 2. 
 
CHAP. I.] NATURE AND REQUISITES. 3 
 
 buntur, et 3) non sequuta solutione locus est processui et ex- 
 sequutioni cambiali." ^ 
 
 § 3. Although a Promissory Note is, in contemplation of 
 law, entitled to all the privileges belonging to such an in- 
 strument by the Commercial Law, as well as by the Com- 
 mon Law, without being negotiable,^ yet it is the latter 
 quality which gives it its principal importance and value in 
 modern times, and makes it a circulating credit, so extensive- 
 ly useful and so generally resorted to in the commerce of the 
 world. Promissory Notes are now generally made negotia- 
 ble, by being stated therein to be payable to A or order, or to 
 the order of A, or to A or bearer, or to the bearer general- 
 ly.^ ' Perhaps the silent but steady progress in England, from 
 
 ' Heinecc. de Camb. cap. 2, § 3. 
 
 ' Bayley on Bills, ch. 1, § 10, pp. 33, 34 (Sth edit.), and note 73 ; Wells 
 V. Brigham, 6 Cush. 6 ; Chitty on Bills, ch. 5, p. 180 (Sth edit. 1833) ; Id. 
 ch. 12, p. 557 ; Smith v. Kendall, 6 Term, 123 ; Kex v. Box, 6 Taunt. 325 ; 
 Burchell v. Slocock, 2 Ld. Eaym. 1545 ; Downing ». Baekenstoes, 3 Caines, 
 137; Dutchess Cotton Manuf. v. Davis, 14 Johns. 238 ; Moore v. Paine, 
 Cas. Temp. Hard. 274. Yet it remained a doubt, down to the time of the 
 decision in Smith v. Kendall, 6 Term, 123, whether a Promissory Note, not 
 negotiable, was within the statute of 3 & 4 Anne, ch. 9. Lord Kenyon 
 there said : " If this were res Integra, and there were no decision upon the 
 subject, there would be a great deal of weight in the defendant's objection ; 
 but it was decided in a case in Lord Raymond, on demurrer, that a Note 
 payable to B, without adding ' or to his order,' or ' to bearer,' was a legal 
 Note within the act of Parliament. It is also said in Marius, that a Note 
 may be made payable either to A or bearer, A or order, or to A only. In 
 addition to these authorities, I have made inquiries among different mer- 
 chants respecting the practice in allowing the three days' grace, the resflt 
 of which is, that the Bank of England and the merchants in London allow 
 the three days' grace on Notes like the present. The opinion of mer- 
 chants, indeed, would not govern this court in a question of law, but I am 
 glad to find that the practice of the commercial world coincides with the 
 decision of a court of law. Therefore, I think that it would be dangerous 
 now to shake that practice, which is warranted by a solemn decision of this 
 court, by any speculative reasoning upon the subject." I have not, after 
 some research, been able to find the passage referred to by his lordship in 
 Marius. Perhaps he referred to Marius, p. 14 or p. 84. See also Com. 
 Dig. Merchant, F. 15. 
 
 ' Chitty on Bills, ch. 5, p. 181 (Sth edit. 1833) ; Id. ch. 6, p. 219. 
 
4 PKOMISSOEY NOTES. [CHAP. I. 
 
 the simple use of the non-negotiable Notes, before the reign 
 of Queen Anne, to the present almost universal negotiability 
 of such instruments in our day, cannot be better expressed 
 than by referring to the language of Blackstone above cited, 
 where he adverts to the fact that Promissory Notes are paya- 
 ble " to a person therein named," and then cautiously adds, 
 " or sometimes to his own order, or oftener to the bearer." ^ 
 The reverse language might be far more justly used in the 
 present day ; and it might be correctly stated that Promis- 
 sory Notes are now generally negotiable by being payable to 
 order, or to the bearer ; and that they are rarely limited to 
 be payable only to a particular person named therein. We 
 . may add, in this connection, that the person who makes the 
 Note is called the maker, and the person to whom it is paya- 
 ble is called the payee ; and when it is negotiable by indorse- 
 ment, and is indorsed by the payee, he is called the indorser, 
 and the person to whom the interest is transferred by the in- 
 dorsement is called the indorsee.^ Every indorsee is of course 
 deemed the holder,* and so is every person who, by a transfer 
 of a Note payable to the bearer, becomes entitled thereto.* 
 
 » 2 Black. Comm. 467. 
 
 ' Chitty on Bills, ch. 12, p. 548 (8th edit. 1833) ; Bayley on Bills, ch. 1, 
 § 1, p. 4 (5th edit.). 
 
 ' [But see Emmet v. Tottenham, 20 Eng. Law & Eq. 348; S. C. 8 
 Exch. 884; Sainsbury v. Parkiq|on, Id. 351, what a holder must be.] 
 
 * The usual form of a Promissory Note in England, according to Mr. 
 Chitty, is: "£50 (or the other proper sum). London (or other place), 
 Istdftf January, 1832 (or the other proper date). Two months after date 
 (or on demand, or at any other specified time), I promise to pay to Mr. A 
 B, or order, fifty pounds, value received." Signed, C D. Chitty on Bills, 
 ch. 12, p. 548 (8th edit. 1833). The common form in America is: "Bos- 
 ton, January 1, 1844. For value received, I promise to pay A B, or order 
 
 (or to the order of A B), one thousand dollars, in days after date 
 
 (or on demand, &c.)." Signed, C D. The common form in France, ac- 
 cording to Nouguier, is : " Au dix Novembre prochain (ou a toute autre 
 ^eheance). Je paierai k M. Jacques, ou k son ordre, la somme de mille 
 franc-s, valeur re9ue comptant (ou de toute autre maniere). Paris, ce (la 
 date) 18—. Paul. [B. P. f. 1000."] Nouguier, Des Lettres de Change, 
 Liv. 4, § 1, p. 497. Terms substantially the same are given in Dupuy de la 
 
CHAP. I.] NATURE AND KEQTJISITES. 5 
 
 The Scottish law seems precisely coincident with the English 
 law as to Promissory Notes, except so far as respects the re- 
 medial process thereon ; there being some peculiar privileges 
 annexed thereto in Scotland.^ 
 
 § 4. It seems scarcely necessary to point out the distinction 
 between Bills of Exchange and Promissory Notes in their 
 general structure and character. In a Bill of Exchange, 
 there are ordinarily three original parties, the drawer, the 
 payee, and the drawee, who, after acceptance, becomes the 
 acceptor. In a Promissory Note, there are but two original 
 parties, the maker and the payee. In a Bill of Exchange, 
 the acceptor is the primary debtor in the contemplation of 
 law to the payee ; and the drawer is but collaterally liable. 
 In a Promissory Note, the maker is, in contemplation of law, 
 the primary debtor. If a Note be negotiable, and is indorsed 
 by the payee, then there occurs a striking resemblance in the 
 relations of the parties upon both instruments, although they 
 are not in all respects identical.^ The indorser of a Note 
 stands in the same relation to the subsequent parties as the 
 drawer of a Bill, and the maker of the Note is under the 
 same liabilities as the acceptor of a Bill.^ 
 
 § 5. The origin of Promissory Notes is quite as obscure as 
 that of Bills of Exchange. There is no doubt that Promis- 
 sory Notes in writing ( Chirographa) were well known and 
 in use among the Romans. Of tliis, we have an instance in 
 the Digest. " Ab Aulo Augerio Gains Seius mutuam quan- 
 dam quantitatem accepit hoc Chirographo : lUe scripsit, me 
 accepisse, et accepi ab illo mutuos et numeratos decem : quos 
 
 Serra, Des Lettres de Change, ch. 19, pp. 192, 193 (edit. 1789) ; Savary, 
 Parfait Negociant, Pt. 1, Liv. 3, ch. 10, pp. 244, 245. A place of payment 
 is often mentioned in Promissory Notes, as, for example, it is made payable 
 at a particular place, or at a particular bank or banker's. 
 
 ' 1 Bell, Comm. B. 3, ch. 2, § 5, pp. 386, 387 (5th edit.). 
 
 2 Post, §§ 379, 380, 387. 
 
 ' Chitty on Bills, ch. 6, p. 266 (8th edit. 1833) ; BuUer v. Crips, 6 Mod. 
 29, 30; Bayley on Bills, ch. 5, § 3, p. 169 (5th London edit.) ; Id. ch. 1, 
 § 15, p. 42 1 Heylyn v. Adamson, 2 Burr. 669, 676. 
 
'6 PKOMISSOEY NOTES. [CHAP. t 
 
 ei reddam kalendis illis proximis cum suis usuris placitis inter 
 nos: Qussro, an ex eo instrumento usurse peti possiut, et 
 quae ? Modestinus respondit, si non appareat de quibus usu- 
 ris conventio facta sit, peti eas non posse." ^ But this -instru- 
 ment never seems to have been known as a negotiable instru- 
 ment among the Romans, or as a general medium used in 
 purchases and sales, with that superadded quality ; but its 
 negotiability seems to be exclusively the invention of modern 
 times. i;^Probably the origin of negotiable Promissory Notes is 
 somewhat later than that of Bills of Exchange, and grew out 
 of the same general causes as the latter, viz. to facilitate the 
 operations of commerce, and to extend the negotiability of 
 debts. Mr. Kyd's remarks on this subject seem at once well 
 founded and satisfactory, at least as conjectures. " As com- 
 merce," says he, " advanced in its progress, the multiplicity 
 of its concerns required, in many instances, a less compli- 
 cated mode of payment than by Bills of Exchange. A trad- 
 er, whose situation and circumstances rendered credit from 
 the merchant or manufacturer, who supplied him with goods, 
 absolutely necessary, might have so limited a connection with 
 the commercial world at large that he could not easily furnish 
 his creditor with a Bill of Exchange on another man. But 
 his own responsibility might be such, that his simple promise 
 of payment, reduced to writing for the purpose of evidence, 
 might be accepted with equal confidence as a bill on another 
 trader. Hence, it may reasonably be conjectured, Promissory 
 Notes were at first introduced." ^ 
 
 • Dig. Lib. 22, tit. 1, 1. 41, § 2 ; Dig. Lib. 2, tit. 14, 1. 47, § 2. , 
 
 * Kyd on Bills, p. 18. — I have made some researches into other works 
 to ascertain the origin of Promissory Notes, but have not been successful. 
 The subject is merely incidentally touched, under the head of Exchange, 
 in Anderson's History of Commerce (vol. 1. pp. 221, 266, 360, 541, 557, 
 Dublin edit. 1790), and in the Encyclopsedia Britannica, art. Exchange; 
 and in Malynes, Lex. Merc. eh. 11, § 6, p. 71 (edit. 1636). Malynes here 
 speaks of Promissory Notes, called Bills of Debt, or Bills Obligatory, which 
 were negotiable, as being " altogether used by the merchants, adventurers 
 at Amsterdam, Middleborough, Hamborough, and other places." See also 
 Malynes, Lex. Merc. ch. 12, pp. 72, 73 (edit. 1636) ; Id. ch. 13, pp. 74, 75. 
 
CHAP. I.] NATURE AND REQUISITES. 7 
 
 § 6. Undoubtedly, negotiable Promissory Notes were well 
 known upon the continent of Europe, long before their in- 
 troduction into England.^ They were, probably, first 
 brought into use in England about the middle of the 17th 
 century, although Lord Holt has been thought to assign to 
 them a somewhat later origin.^ They seem at first to have 
 been called Bills of Debt, or Bills of Credit, indifferently.^ 
 Indeed, as Lord Mansfield has observed, there aeems much 
 confusion in the Reports in the times of King William and 
 Queen Anne, so that it is diflBcult, without consulting the 
 records, to ascertain whether the action arose upon a Bill or 
 Note, as the words " Bill " and " Note " were used promiscu- 
 ously.* There was a long struggle in "Westminster Hall, as 
 to the question whether Promissory Notes were negotiable 
 or not at the Common Law; for there could be no doubt 
 that they were by the Law Merchant, at least as recognized 
 upon the continent of Europe. Lord Holt most strenuously, 
 and with a pride of opinion not altogether reconcilable with 
 his sound sense and generally comprehensive views, main- 
 tained the negative.^ The controversy was finally ended by 
 
 Malynes adds, that this laudable custom is not practised or established in 
 England. See also Scaccia, Tract, de Comm. § 1, Quest. 2, pp. 150 - 154 ; 
 Id. § 1, Ques,t. 6, p. 194. 
 
 ' Malynes, Lex. Merc. ch. 11, p. 71 (edit. 1636) ; Id. ch. 12, p. 72; Id. 
 ch. 13, pp. 74, 75. See Nouguier, Des Lettres de Change, Tom. 1, pp. 
 279-285, 296. 
 
 " Buller V. Crips, 6 Mod. 29 ; Malynes, Lex. Merc. ch. 11, p. 71, ch. 12, 
 p. 72 (ed. 1636). There is a very learned note by Mr. Chief Justice 
 Cranch, in the Appendix to the first volume of his Reports, in which he 
 has traced the history of Promissory Notes and inland Bills, in England, 
 with great minuteness and apparent accuracy. A scrupulous examination 
 of this Appendix will well reward the diligence of the attentive reader. 
 See 1 Cranch, App'x, p. 36 7, note A, and especially pp. 380 - 405. See also 
 Com. Dig. Merchant, F. 1, F. 2 ; Malynes, Lex. Merc. ch. 11, pp. 71, 72, ch. 
 12, pp. 72, 73; Godbolt, 49. 
 
 ' Com. Dig. Merchant, F. 1, F. 2; Malynes, Lex. Merc. ch. 11, p. 71, 
 ch. 12, p. 72 (edit. 1636) ; Id. ch. 13, p. 74. 
 
 * Grant v. Vaughan, 3 Burr. 1525. 
 
 » Clerk !!. Martin, 2 Ld. Kaym. 757 ; 1 Salk. 129. The history of this 
 
8 PROMISSORY NOTES. [CHAP. I 
 
 the Statute of 3 & 4 Anne, ch. 9 (1705), (made perpetu- 
 al by the Statute of 7 Anne, ch. 25, § 3), which, after recit- 
 ing that Promissory Notes had been held not negotiable, pro- 
 ceeded to enact, " That all Notes in writing, made and signed 
 by any person or persons, body politic or corporate, or by 
 the servant or agent of any corporation, banker, goldsmith, 
 merchant, or trader, who is usually intrusted by him, her, or 
 them, to sign such Promissory Notes for him, her, or them, 
 whereby such person or persons, body politic and corporate, 
 his, her, or their servant or agent as aforesaid, doth or shall 
 promise to pay to any other person or persons, body politic 
 and corporate, his, her, or their order, or unto bearer, any 
 sum of money mentioned in such Note, shall be taken and 
 construed to be, by virtue thereof, due and payable to any 
 such person or persons, body politic and corporate, to whom 
 the same is made payable ; and also every such Note payable 
 to any person or persons, body politic and corporate, his, her, 
 or their order, shall be assignable or indorsable' over, in the 
 same manner as inland Bills of Exchange are or may be, ac- 
 cording to the custom of merchants ; and that the person or 
 persons, body politic- and corporate, to whom such sum of 
 money is or shall be by such Note made payable, shall and 
 may maintain an action for the same, in such manner as he, 
 she, or they might do upon any inland Bills of 'Exchange, 
 made or drawn according to the custom of merchants,* 
 against the person or persons, body politic and corporate, 
 who, or whose servant or agent as aforesaid, signed the same ; 
 and that any person or persons, body politic and corporate, to 
 whom such Note, that is payable to any person or persons, 
 body politic and corporate, his, her, or their order, is indorsed, 
 or assigned, or the money therein mentioned ordered to be 
 paid by indorsement thereon, shall and may maintain his, 
 
 struggle; as well as the conflit^ing adjudications, are fully stated in the Ap- 
 pendix to Judge Cranch's Reports, note A, p. 367, and especially pp. 380- 
 418; Brown v. Harraden, 4 Term, 148; Chitty on Bills, ch. 12, pp. 548- 
 550 (8th edit. 1833). 
 
CHAP. I.] NATURE AND REQUISITES. 9 
 
 her, or their action for such sum of money, either against 
 the person or persons, body politic and corporate, who, or 
 •whose servant or agent as aforesaid, signed such Note, or 
 against any of the persons that indorsed the same, in lilie 
 manner as in cases of inland Bills of Exchange." ^ In most 
 of the States of America, this statute has been either express- 
 ly adopted by statute, or recognized as part of their Common 
 Law. A few only have deemed it inapplicable to. their situa- 
 tion ; and in some States the circulation of Promissory Notes 
 still remains clogged with positive restrictions, or practical 
 difficulties, which greatly impede their use, and value, and 
 circulation.^ 
 
 1 Chitty on Bills, ch. 12, p. 550 (Sth edit.). 
 
 ' Mr. Chancellor Kent, in the 5th edition of his Commentaries (3 Kent, 
 Lect. 44, p. 72, note a) upon this subject, says : " In Massachusetts, Con- 
 necticut, Vermont, Ohio, North Carolina, South Carolina, Alabama, Illi- 
 nois, Michigan, Missouri, and most of the States, the indorsee has all the 
 privileges of an indorsee under the Law Merchant. But in New Jersey, 
 Pennsylvania, Kentucky, Indiana, and Mississippi, his rights, under the 
 Law Merchant, are to be taken with some qualification, and especially in 
 the States last mentioned. See Griffith's Law Register, passim ; 1 Minor, 
 Ala. 5, 296 ; Revised Statutes of North Carolina (1837), vol. 1, p. 93 ; 
 Revised Statutes of Vermont (1839), 336 ; Revised Code of Mississippi 
 (1822), 464. Notes or Bills discounted at a bank, or deposited for col- 
 lection, are placed by statute, in Pennsylvania, on the footing of foreign 
 Bills of Exchange as to payment and remedy. Purdon, Dig. 108. As the 
 English statute has not been adopted in Virginia, the last assignee of a 
 Promissory Note cannot maintain an action against a remote indorser, 
 there being neither consideration nor privity. Dunlop v. Harris, 5 Call. 
 16. In New Hampshire, the statutes of 9 & 10 William III. and 3 & 4 
 Anne, respecting inland Bills and Promissory Notes, were re-enacted dur- 
 ing the Colony administration. In Indiana, Promissory Notes, payable at a 
 chartered bank within the State, are by statute placed on the same footing 
 as inland Bills of Exchange by the Law Merchant. Revised Statutes of 
 Indiana (1838), 119. But other Promissory Notes are not governed by the 
 Law Merchant, which has never been applied in that State by statute 
 to them. Bullitt v. Soribner, 1 Blackf. Ind. 14. The Lex Mercatoria, 
 applicable to foreign and inland Bills of Exchange, is considered to be 
 adopted in Indiana as part of the Common Law of England, which haa 
 been adopted by statute. Piatt v. Eads, Id. 81. In Penn.»ylvania, Vir- 
 ginia, Arkansas, Missouri, and Mississippi, sealed instruments, as well as 
 
iO PEOMISSOET NOTES. [CHAP. L 
 
 § 7. Most, if not all, commercial nations have annexed cer- 
 tain privileges, benefits, and advantages to Promissory Notes, 
 as they have to Bills of Exchange, in order to promote pub- 
 lic confidence in them, and thus to insure their circulation 
 as a medium of pecuniary commercial transactions.^ In 
 England and America, they partake, in a very high degree, 
 of the character of specialties, and are deemed to import 
 prima facie, to be founded upon a valuable consideration, and 
 may be generally declared on ■without specially stating what 
 the particular consideration is ; in -which circumstance they 
 differ from other unsealed contracts, whether written or un- 
 written. Between the original parties, the consideration 
 may, indeed, as a matter of defence, be inquired into. But 
 where they are negotiable, and in the possession of a bona 
 fde holder for a valuable consideration, without any notice 
 of any inherent infirmity or vice in their original concoction, 
 they are binding upon the antecedent parties,^ and the con- 
 sideration is not inquirable into, and becomes immaterial.^ 
 In Scotland, they are entitled to all the privileges of Bills of 
 
 Notes, are made negotiable by statute; and in Arkansas, all agreements 
 and contracts in writing, for the payment of money or property, are made 
 assignable. But these assignments, in some of these last-mentioned States, 
 expressly reserve to the debtor all matters of defence existing prior to the 
 notice of the assignment. In Georgia, by statute of 1799, Promissory 
 Notes are made negotiable, though given^for specific articles. Daniel v. 
 Andrews, Dudley, 157 ; Gamblin v. Walker, 1 Ark. 220 ; Henning, Stat- 
 utes, vol. 12; Block I". Walker, 2 Ark. 7; Revised Statutes of Arkansas, 
 107 ; Revised Code of Mississippi (1824), 464." By the laws of New 
 York (Revised Statutes, vol. 1, p. 768, § 1), " Promissory Notes payable 
 in money to any person, or to the order of any person, or to bearer, 
 are negotiable in like manner as inland Bills of Exchange, according to the 
 custom of merchants. The payee and indorsee of every such Note, paya- 
 ble to them or their order, and the holder of every such Note, payable to 
 bearer, may sue thereon in like manner as in cases of inland Bills of Ex- 
 change. If such Notes are made payable to the order of the maker, or to 
 the order of a fictitious person, and be negotiated by the maker, they have 
 the same effect and validity as if made payable to bearer." 
 
 ' Story on Bills of Exchange, § 14; Thomson on Bills, ch. 1, pp. 1-5. 
 ' ^ Story on Bills of Exchange, §§ 14, 15 ; post, § 181. 
 
CHAP. I.] NATURE AND REQUISITES. 11 
 
 Exchange, among •vrhicli, besides the common privileges in 
 England and America, is the privilege of a summary process 
 to enforce payment upon their dishonor, differing from the 
 ordinary process.^ The like summary process is given by the 
 French law.^ [And a similar statute has recently been 
 enacted in England.^] Heineccius, in the passages already 
 referred to,* states that they are indorsable like Bills of Ex- 
 change, and are subject to the law of prescription, and, in 
 case of dishonor, are open to the same process and mode of 
 execution as Bills of Exchange. 
 
 § 8. Having stated the general nature of Promissory 
 Notes, their definition, origin, and privileges, in brief terms, 
 let us now proceed to a more exact consideration of the qual- 
 ities which are essential to their true operation and struct- 
 ure, and without which they cease to possess the proper 
 attributes of commercial paper. 
 
 § 9. In tl\,o first place, a Promissory Note, as the very 
 phrase denotes, is a written instrument.^ A verbal or oral 
 promise, however valid and obligatory in point of law, and 
 however formal in its language, is not deemed a Promissory 
 Note ; nor is it capable of being transferred at law, although 
 the promise be to pay to the payee or his order, or to the 
 bearer, the sum stipulated. This is obvious enough upon 
 the slightest consideration. A verbal promise cannot be 
 indorsed, that is, written upon, for there is nothing in esse 
 to which the indorsement can be attached. It is equally in- 
 
 ' Thomson on Bills, p. 3. 
 
 ' Story on Bills of Exchange, §14; Pothier, De Change, n. 124-127; 
 Jousse, Comm. Sur L'Ord, 1673, art. 12, p. 102 ; Code de Comm. de France, 
 art. 187; Noiiguier, Des Lettres de Change, Tom. 1. Liv. 4, § 2, art. 1, 
 p. 513, &c. ; Savary, Parfait Negociant, Tom. 1, Pt. 1, Liv. 3, ch. 9, p. 209. 
 In Nouguier (Tom. 2), the regulations respecting Bills of Exchange and 
 Promissory Notes in the different countries of Europe^ are very fully 
 stated. 
 
 « Stat. 18 & 19 Vict. ch. 67, July 23, 1855; Law Journal Statutes, 1855, 
 p. 79. 
 
 * Ante, § 2; Heinecc. de Camb. cTi. 2, § 3, p. 11. 
 
 ' Bayley on Bills, ch. 1, § 1, p. 1 (5th edit.) ; Id. §> 3, p. 10 ; Thomson 
 on Bills, ch. 1, p. 1. 
 
12 PROMISSORY NOTES. [CHAP. I, 
 
 capable of passing to the bearer, because it has no corporeal 
 existence, or corporeal representative, by which it can be 
 identified to be in the possession of one person more than 
 another. But if the promise be in writing, and it has all the 
 other requisites, it is not essential to its character as a Prom- 
 issory Note (as we have already seen^), that it should be 
 negotiable, that is, that it should be payable to order, or to 
 bearer. It is true that it will not be negotiable, unless these, 
 or other words of the same legal effect, are found in the writ- 
 ten instrument ; but it will nevertheless, in contemplation of 
 law, be a Promissory Note.^ [Delivery also is essential to a 
 perfect Promissory Note. And if it be enclosed by the maker 
 in a letter directed to the payee, and so found among the 
 maker's papers after his death, and by his executor delivered 
 to the payee, this is not sufficient.^ So if a Note be stolen 
 from the maker, a bona fide purchaser cannot recover upon 
 it ; the Note never having had any vitality.*] 
 
 § 10. This requisite, that a Promissory Note should be in 
 writing, is, from what has been already said, founded in the 
 very nature and design and operation of the instrument. 
 Hence it is equally true in the law of Prance, and of the 
 other commercial countries of the continent of Europe, and, 
 indeed, may properly be deemed the rule throughout the 
 commercial world. The Code of Commerce of Prance only 
 embodies the general understanding of all nations where 
 Bills of Exchange and Promissory Notes are in. use.^ When, 
 
 • Ante, § 3. 
 
 » Ante, § 3 ; Chitty on Bills, ch. 5, p. 181 (8th edit.) ; Id. ch. G. p. 219 ; 
 Id. ch. 12, p. 548 ; Bayley on Bills, ch. 1, § 10, pp. 33, 34 (5th edit.) ; Smith 
 V. Kendall, 6 Term, 123 ; Chadwick v. Allen, 2 Str. 706 ; Bex v. Box, 6 
 Taunt. 325 ; Burchell v. Slocock, 2 Ld. Raym. 1545 ; Story on Bills of 
 Exchange, §§ 60, 199. 
 
 ' Gough V. Tindon, 8 Eng. Law & Eq. 507; S. C. 7 Exeh.^48. 
 
 * Hall V. Wilson, 16 Barb. 548 ; Carter v. McClintock, 9 Mo. (8 Jones), 
 464. And a note delivered must be accepted by the payee ; thus a note 
 left in settlement of a claim cannot take effect unless expressly or impliedly 
 accepted by the payee. Curtis v. Gorman, 19 111. 141. 
 
 . ' Code de Comm, art. 110, 187; Pardessus, Droit Comm. Tom. 1, art. 
 
CHAP. I.] NATURE AND REQUISITES. 13 
 
 however, it is said that a Promissory Note must be in writ- 
 ing, we are to understand the doctrine witli this qualification, 
 tliat it docs not acquire that character until it is reduced to 
 writing. But it is very common for persons to sign their 
 names in blank to a paper, for the purpose of having a Prom- 
 issory Note written over it ; and in such a case, the Note, 
 when written, will bind the party, if done by a person prop- 
 erly authorized, in the same manner, and to the same ex- 
 tent, and from the same time, as if it had been originally 
 filled up before the signature was made.^ [In such cases the 
 Note must be filled up within a reasonable time after sign- 
 ing, and what is a reasonable time has been said to be a ques- 
 tion for the jury, under all the circumstances of the case.^] 
 
 § 11. We have seen that a Promissory Note must be in 
 writing. But such writing need not, it seems, be in ink 5 for 
 it has been held that it may be in pencil.^ It is perhaps to 
 
 23 ; Id. Tom. 2, art. 318, 330, 478; Jousse, Sur L'Ord. 1673, tit. 5, pp. 58, 
 59, fi7; Id. pp. 126, 127; Pothier, De Change, n. 30, 216; Thomson on 
 Bills, ch. 1, p. 1 ; Heinecc. de Camb. cap. 2, §§ 1 -4 ; Dupuy de la Serra, 
 De Change, ch. 19, p. 191. 
 
 1 Bayley on Bills, ch. 1, § 7, p. 25 (5th edit.) ; Id. § 11, pp. 36, 37, 39; 
 Id. ch. 5, § 3, p. 168 ; Id. ch. 9, p. 382; Chitty on Bills, ch. 2, p. 33 (8th 
 edit.) ; Id. ch. 5, pp. 186, 215 ; Meeh. and Farm. Bank v. Schuyler, 7 
 Cowen, 337; Moody ti. Threlkeld, 13 Geo. 55; Kussel Vi Langstaffe, 2 
 Doug. 514; Violett v. Patton, 5 Cranch, 142; Montague v. Perkins, 22 
 Eng. Law & Eq. 516 ; Goodman v. Simonds, 20 How. (U. S.) 343 ; Bank of 
 Pittsburg V. Nual, 22 How. (U. S.) 96 ; Jones v. Shelbyville Ins. Co., 1 
 Met. (Ky.) 58 ; Ives v. Farmers' Bank, 2 Allen, 236 ; Mc Arthur!). McLeod, 
 6 Jones .(Liw), N. C. 475. The maker of a Note signed in blank may 
 show that the agent was authorized to fill the blanks with a certain sum, if 
 he can prove that the holder of the Note took it with notice of the agent's 
 limited authority. This proof goes only to the excess, and does not defeat 
 the Note for the authorized sum. Hammond v. Whitehead, 33 Miss. (4 
 George), 213. But an agent, authorized to fill blanks so far as to render the 
 instrument valuable, is not thereby authorized to insert a clause waiving the 
 appraisement laws or other legal rights of the maker. Holland v. Hatch, 
 '11 Ind. 497 ; and the insertion of such waiver vitiates the whole contract. 
 
 = See Temple v. PuUen, 8 E.\ch. 389 ; 20 Eng. Law & Eq. 306, and 
 Bennett's note. But see Montague v. Perkins, 22 Id. 516. 
 
 = Bayley on Bills, ch. 1, § 3, p. 10 (5th edit. 1830) ; Geary v. Thysio, 
 
14 PEOMISSOEY NOTES. [CHAP. I. 
 
 be regretted that this doctrine has been established, since 
 pencil marks are so easily altered and erased ; and one of the 
 great objects of negotiable paper is to acquire general credit, 
 by being expressed in language clear and permanent in its 
 character and verification. The writing may, without doubt, 
 be on paper or parchment ; but whether it may be on any 
 other material, as, for example,'on-silk, or cotton cloth, or on 
 wood, or metal, or with a style or a graver, is a mere matter 
 of speculation, which it is useless to discuss, since, practi- 
 cally, in our age, paper or parchment are the only materials 
 in general use. When, however, it is said that a Promissory 
 Note must be in writing, we are not to understand that the 
 instrument is required to be in the handwriting of some in- 
 dividual. It may all, except the signature, be in printed let- 
 ters ; but the signature must be in the handwriting of the 
 party executing it, or if it be by the mark of the maker, that 
 mark must be verified by the handwriting or attestation of 
 some person who acts for the marksman, or attests it at his 
 request. [It has, however, recently been thought that if a 
 person is accustomed to use Notes with his printed signature, 
 and pass them as and for his Notes, they are valid and bind- 
 ing as such.] If signed by an agent, it is, of course, in order 
 to bind the principal, to be signed by the agent in the name 
 of his principal, adding his own signature thereto, or, at 
 least, signed by him in his character as agent. But of this, 
 more will be said hereafter.^ 
 
 § 12. In tlie next place, as to the form of a Promissory 
 Note. The common form has been already given.^ But no 
 particular words are necessary, and the form may be varied 
 at the pleasure of the individual, so always that it amounts, 
 in legal effect, to a written promise for the payment of money 
 
 5 B. & C. 234; Closson v. Stearns, 4 Verm. 11 ; Brown v. Butchers' and 
 Drovers' Bank, 6 Hill, 543 ; Partridge v. Davis, 20 Verm. 499. 
 
 • Post, §§ 65, 67, 68. A person may adopt and ratify the signing of his 
 name by another. Dow v. Spenney, 29 Mo. (8 Jones), 386 ; Handyside v. 
 Cameron, 21 111. 588. 
 
 ' Ante, §3, note. 
 
CHAP. I.] NATURE AND REQUISITES. 15 
 
 absolutely and at all events,^ and it interferes •with no statute 
 regulation,^ Thus, an order or promise to deliver a certain 
 sum of money to A, or to be accountable or responsible to A 
 for a certain sum of money, or that A shall receive it from 
 the maker, is a good Promissory Note.^ So a receipt for 
 money " to be returned when called for," * or an acknowl- 
 edgment, " due to A a certain sum of money, payable on 
 demand," ^ or a promise " to pay or to cause to be paid to A " 
 a certain sum of money,® or an instrument acknowledging 
 the receipt of money of A, promising to pay it on demand 
 with interest ; '' or acknowledging the receipt of money to be 
 repaid in one month ; ^ or acknowledging to have borrowed 
 a certain sum of money, in promise of payment thereof;* 
 [or saying, "I guarantee to pay A. B., or his order," a certain 
 
 I Bayley on Bills, ch. 1, § 1, p. 1 (5th edit. 1830) ; Id. § 2, p. 4 ; Chitty 
 on Bills, ch. 12, pp. 557, 558 (8th edit.) ; Brooks v. Elkins, 2 M & W. 74 ; 
 Hitchcock V. Cloutier, 7 Verm. 22 ; Brown v. De Winton, 6 M., Gr. & S. 336. 
 
 * Chitty on Bills, Pt.*l, ch. 12, pp. 558, 559 (8th edit.). An instrument 
 in the form of a bond without a seal is a Promissory Note. Woodward v. 
 Genet, 2 Hilton, N. Y. 526 ; but a sealed instrument in the ferm of a 
 negotiable Note is not negotiable. Heifer v. Alden, 3 Min. 332. 
 
 ' Chitty on Bills, Ft. 1, ch. 12, pp. 558, 559 (8th edit.) ; Morris v. Lee, 
 2 Ld. Eaym. 1396, 1397 ; S. C. 8 Mod. 362. See Miller v. Austen, 13 
 How. 218; Patterson v. Poindexter, 6 Watts & S. 227 ; McCoy v. Gilmore, 
 7 Ohio, 268 ; Ring v. Foster, 6 Ohio, 279 ; Kilgore v. Bulkley, 14 Conn. 
 363 ; Walker v. Eoberts, 1 C. & M. 590 ; Henschel v. Mahler, 3 Hill, 132 ; 
 Sackett v. Spencer, 29 Barb. 180. But see Home v. Redfearn, 4 Bing. 
 ' N. C. 433 ; White v. North, 3 Exch. 689. 
 
 ♦ Woodfolk V. Leslie, 2 Nott & M'Cord, S. C, 585 ; Laughlin v. Mar- 
 shall, 19 111. 390. 
 
 " Pepoon V. Stagg, 1 Nott & M'Cord, S. C. 102 ; Kimball v. Huntington, 
 10 Wend. 675 ; Carver v. Hayes, 47 Maine, 257 ; Brady v. Chandler, 31 
 Mo. 28. 
 
 ' Lovell V. Hill, 6 C. & P. 238 ; Chadwick «. Allen, 2 Str. 706. 
 
 ' Green v. Davies, 4 B. & C. 235 ; Ashby u. Ashby, 3 Moore & Pay. 
 186. See also Wheatley v. Williams, 1 M. & W. 533 ; Bean v. Briggs, 7 
 Clark (Iowa), 145 ; How v. Hartness, 11 Ohio St. 449. 
 
 » Shrivel v. Payne, 8 Dpwl. Praqt. Cas. 441 ; 4 (English) Jurist, 485. 
 
 » Ellis V. .Mason, 7 Dowl. Pract. Cas. 598 ; S. C. 3 (Enghsh) Jurist, 
 406 ; 2 Will. 'VVool. & Hodges, 70. But see Home v. Redfearn, 4 Bing. 
 N. C. 433. 
 
16 PEOMISSOBY NOTES. [CHAP. I. 
 
 sum.^] TIio doctrine has even been pressed further; an(} 
 where A signed a note in these words : " Borrowed of I S, 
 £50, which I promise not to pay," it was held to be a good 
 Promissory Note, and that the word not ouglit to be rejected,^ 
 as it well might, upon ihe ground of being inserted by mistake 
 or by fraud ; in either of which cases it ought equally to be 
 held inoperative. [And a paper with the following words 
 and letters, but omitting the word " dollars," has been held to 
 be a good note, viz. : " $ 300. For value received, I promise 
 to pay P & Co. three hundred." ^ And it also seems that a 
 writing in these words : " Por value received of C & M, or 
 order, thirty dollars and eighty-three cents on demand and 
 interest annually," is by intendment a good Note.*] In all 
 these and the like cases it is not necessary that the payee 
 should be expressly named, as will be more fully seen here- 
 after ; but it is sufficient that it can be fairly implied to 
 whom the promise is made.^ The Prench law, as laid down 
 by Pothicr, is to the same effect.^ 
 
 § 13. However, sometimes very nice cases arise, in which 
 it may well become a matter of controversy whether a par- 
 ticular instrument is a Promissory Note or not, where the 
 parties are already stated, and the sum is fixed. Thus, for 
 example, where an instrument was in these words : " I un- 
 dertake to pay to R I, the sum of £6 4s. for a suit of clothes, 
 ordered by D P," and signed by the promisor, a question was 
 made whether it was a Promissory Note or a guaranty ; and 
 the Court held it to be the latter.^ So an instrument in 
 these words: "I, A B, owe Mrs. B the sum of £Q, which 
 
 ' Bruce v. Westcott, 3 Barb. 374. 
 
 " Bayley on Bills, ch. 1, § 2, p. 6 (oth edit. 1830) ; Chitty on Bills, eh. 
 5, pp. 150, 151 (8th edit.) ; Simpson v. Vaughan, 2 Atk. 32. 
 
 ' Sweetser v. French, 13 Met. 262 ; Coolbroth v. Purington, 29 Maine, 
 469. 
 
 * Cummings v. Gassett, 1 9 Verm. 308. 
 
 » Green v. Davies, 4 B. & C. 235 ; Chadwick v. Allen, 2 Str. 706. 
 
 " Pothier, De Change, n. 31. 
 
 ' Jarvis v. Wilkins, 7 M. & W. 410. 
 
CHAP. I.] NATURE AND EEQUISITES. 17 
 
 is to be paid by instalments for rent," was held not to be 
 a Promissory Note, because no time of payment was stipu- 
 lated.! 
 
 § 14. But it seems that, to constitute a good Promissory 
 Note, there must be an express promise upon the face of the 
 instrument to pay the money ; for a mere promise implied by 
 law, founded upon an acknowledged indebtment, will not be 
 sufficieiit. Hence, it has been held, that the mere acknowl- 
 edgment of a debt, without a promise to pay, is not a good 
 Proinissory Note.^ Thus, where A wrote on a slip of paper, 
 " I. 0. U. [I owe you] eight guineas," it was held to be a 
 mere due bill, and not a Promissory Note.^ [So, " borrowed 
 of A £100, for one month ; check, £100, on Naval Bank." *] 
 So, in a written bargain for buying goods, a promise to pay 
 the seller the price in a limited time is not a Promissory 
 Note, but a memorandum of the terms of the bargain.^ But 
 if the promise were, " Due to A B £20, payable to him or 
 
 ^ Moffat V. Edwards, 1 Carr. & Marsh. 16. 
 
 ' Bayley on Bills, ch. 1, § 2, p. 5 (5tli edit.) ; Fisher v. Leslie, 1 Esp. 
 426; Chitty on Bills, ch. 12, p. 558 (8th edit.) ; Guy u. Harris, Ibid. note. 
 
 = Ibid ; .Curtis v. Richards, 1 M. & G. 46 ; Read u. Wheeler, 2 Yer. 50„ 
 note. The distinction between the cases on this point is extremely nice, 
 not to say sometimes very unsatisfactory. In Kimball v. Huntington, 10 
 Wend. 675, the words of the instrument were, " Due A B, three hundred 
 dollars, payable on demand," and it was held a good Promissory Note. In- 
 Russell V. Whipple, 2 Cowen, 536, the words were, " Due A B, or bearer, 
 &c. two hundred dollars and 26-100, for value received"; and it was held 
 a good Promissory Note. Here there was no express promise to pay ; but 
 the promise was implied by law. The case of Luqueer v. Prosser, 1 Hill, 
 256, is to the same effect. The case of Brooks v. Elkins, 2 M. & W. 74, is 
 also, on this point, not unimportant. In that case the instrument was, " I. 
 O. D. £20, to be paid on the 22d instant." And the Court held it to be 
 either a Promissory Note, or an agreement for the payment of £l0 and 
 upwards, and in either case required a stamp. In Waithman v. Elsee, 1 
 Carr. & Kirw. 35, it was held that the words "I. O. U. £85, to be paid 
 May 5th," made the instrument a Promissory Note. See Brown v. Gilman, 
 13 Mass. 158. 
 
 * Hyne v. Dewdney, 11 Eng. Law & Eq. 400. 
 
 " Bayley on Bills, ch. 1, § 2, p. 6 (5th edit. 1830) ; Ellis v. Ellis, Gow, 
 216. 
 
18 PEOMISSOEY NOTES. [CHAP. I. 
 
 order," or to him or bearer, it would be a Promissory Note, 
 for it contains more than the law would imply, and becomes 
 negotiable.! So a due bill, payable at a specific time, 
 would be held a good Promissory Note for the like reason.^ 
 
 § 15. A distinction partaking somewhat of a like charac^ 
 ter exists in the French law. There, a written acknowl- 
 edgment of a debt, with a promise to pay it, constitutes a 
 mere simple contract or evidence of debt, and is called Billet 
 Simple, and is distinguished in its character and effects from- 
 a Bill of Exchange and a Promissory Note, each of which is 
 supposed to be negotiable, and therefore entitled to peculiar 
 privileges.^ 
 
 § 16. Sometimes the language of the instrument is ambig- 
 uous, and is capable of being interpreted either as a Bill of 
 Exchange or as a Promissory Note. In such a case, the per- 
 son who receives it may, at his own option, treat it as a Bill 
 of Exchange, or as a Note against the maker.* Therefore, 
 an instrument which is in the form of a Note, but which, in 
 addition, is addressed to a third person, who accepts it, is- a 
 Promissory Note, and may be so declared on accordingly.^ 
 So, if a person draws an order upon himself, or payable by 
 himself, [and indorses it over to a third person,] it is, or at 
 least may be, although in form a Bill, treated as a Promis- 
 sory Note ; ^ [and such a Note, if indorsed in blank, and put 
 
 ' Curtis V. Rickards, 1 M. & G. 46 ; Eussell v. Whipple, 2 Cowen, 536. 
 ' Waithman v. Elsee, 1 Carr. & Kirw. 35. 
 
 « Merlin, Kepertoire, Billeti § 1, p. 148 (edit. 1827) ; Id. Ordre Billet, a, 
 § 1, p. 229 ; Pothier, De Change, n. 32 ; ante, § 2. 
 
 * Bailey on Bills, ch. 1, § 2, p. 9 (edit. 1830) ; Edis v. Bury, 6 B. & C. 
 433 ; Shuttleworth u. Stephens, 1 Camp. 407 ; Chitty on Bills, ch. 2, § 2, 
 pp. 28, 29 (8th edit.) ; Id. ch. 5, pp. 150, 151, 187 ; Allan v. Mawson, 4 
 Camp. 115 ; Koach v. Ostler, 1 M. & K. 120. See Peto v. Rej'nolds, 25 
 Eng. Law & Eq. 438 ; 9 Exch. 410. 
 
 * Edis V. Bury, 6 B. & C. 433 ; Block v. Bell, 1 Mood. & Rob. 149. 
 [And so it might be, as a Bill of Exchange. Lloyd v. Oliver, 12 Eng. Law 
 & Eq. 424.] Fielder v. Marshall, 9 C. B. (N. S.) 606. 
 
 , » Bayley on Bills, ch. 1, § 2, p. 8 (5th edit.) ; Chitty on Bills, ch. 2, p. 
 28, (8th edit.) ; Starke v. Cheesman, Carth. 409 ; Dehers v. Harriot, 1 
 
CHAB. I.] NATURE AND REQUISITES. 19 
 
 in circulation by the maker, becomes in effect a Note paya- 
 ble to the bearer.^] So, an order drawn by A B, as mana- 
 ger of a company, on the company, for a certain sum, payable 
 without acceptance to C D, or order, may be declared on as 
 a Promissory Note.^ [So of an order by the president of 
 a corporation upon its treasurer, directing him to pay A B, 
 or order, a certain sum for work done by him as a con- 
 tractor.3] 
 
 § 17. In the next place, the instrument, in order to be a 
 valid Promissory Note, must be for the payment of money, 
 and for the payment of money only ; for if it be a promise to 
 pay money, and to do any other act,* [not implied by law,^]. 
 or a promise to do any act, and not to pay money, it is not, 
 in the sense of the commercial law, a Promissory Note, and 
 it is not negotiable, and does not enjoy the common privileges, 
 applicable to such negotiable paper.® Therefore, a written 
 promise to deliver up horses and a wharf, and to pay money 
 on a particular day, has been held not to be a valid Promis- 
 sory Note.^ So, a written promise for the delivery or pay- 
 ment of merchandise or chattels, or other things in their na- 
 ture susceptible of deterioration and loss, and variation in 
 
 Shower, 163 ; Josceline v. Laserre, Fort. 282 ; Koach v. Ostler, 1 M. & K. 
 120 ; aliter in Kentucky, 3 Met. (Ky.) 285. 
 
 » Brown v. De Winton, 6 M., Gr. & S. 336 ; Masters v. Barreto, 8 Ibid. 
 433 ; S. C. 2 Carr. & Kirw. 715 ; Wood v. Mytton, 10 A. & Ell. N. S. 805 ; 
 Hooper V. Williams, 2 Exch. 13 ; Furniss v. Gilchrist, 1 Sanford, 53 ; 
 Scull V. Edwards, 8 Eng. Eep. 24 ; Woods v. Kidley, 11 Humph. 194 ; 
 Wardens v. Moore, 1 Carter, 289. But see Flight v. McLean, 16 M. & W. 
 51 ; Heywood v. Wingate, 14 N. H. 73 ; post, § 36 a. 
 
 ' Miller V. Thomson, 4 Scott, New R. 204 ; S. C. 3 M. & G. 576. 
 
 ' [Fairchild v. Ogdensburgh Eailroad Co., 1 E. P. Smith, N. Y. 337.] 
 
 * [See Austin v. Burns, 16 Barb. 643.] 
 
 * [Baxter v. Stewart, 4 Sneed, 213.] 
 
 * Bayley on Bills, ch. 1, § 4, p. 10 (5th edit.) ; Chitty on Bills, ch. 5, pp. 
 152, 153 (8th edit.) ; Id. ch. 12, p. 560 ; Story on Bills, § 43 ; Carleton v. 
 Brooks, 14 N. H. 149. 
 
 ' Bayley on Bills, ch. 1, § 4, p. 10 (5th edit.) ; Chitty on Bills, ch. 5, pp. 
 152, 153 (8th edit.) ; Id. ch. 12, p. 560 ; Martin v. Chauntry, 2 Str. 1271. 
 But see Owen v. Barnum, 2 Gilman, 111. 461. 
 
20 PROMISSORY NOTES. [CHAP. I. 
 
 quality or value, is not a valid Promissory Note.^ So, a 
 written proinise to pay the bearer a certain sum of money in 
 goods, [or in grain,] is not a valid Promissory Note.^ [But 
 an instrument, in terms and form a negotiable Promissory 
 Note, does not lose that character because it rpcites that the 
 maker has deposited collateral security for its payment, 
 vrhich he agrees may be sold in a certain manner specified, 
 and that he will pay the balance.^] But, provided the Note 
 be for the payment of money only, it is wholly immaterial 
 in the money or currency of what country it is made paya- 
 ble. ^ It may be payable in the currency or money of Eng- 
 land, or Prance, or Spain, or Holland, or Italy, or of any 
 other country. It may be payable in coins, such as guineas, 
 ducats, doubloons, ^crowns, or dollars, or in the known cur- 
 rency of the country, as in pounds sterling, livres, tour- 
 noises, francs, florins, &c. ; for in all these and the like cases, 
 the sum of money to be paid is fixed by the pair of exchange, 
 or the known denomination of the currency, with reference 
 to the par.* Heineccius, upon this subject, adds, that the 
 
 ' Ibid. ; Jerome v. Whitney, 7 John. 321 ; Thomas v. Koosa, 7 John. 461 ; 
 Peay v. Pickett, l.Nott & McCord, 254 ; Rhodes v. Lindly, 3 Hamm. Ohio, 
 51 ; Atkinson v. Manks, 1 Covren, 691 ; Jones v. Fales, 4 Mass. 245 ; Law- 
 rence V. Dougherty, 5 Yerg. 435 ; Ellis v. Ellis, Gow, 216. 
 
 ' Clark V. King, 2 Mass. 524 ; Wingo v. McDowell, 8 Rich. 44G. 
 
 ' [Arnold v. Kock River Valley Union Co., 5 Duer, 207 ; Wise v. Charl- 
 ton, 4 Ad. & El. 786 ; Eancomb v. Thorn, 15 Law J. R. Q. B. 344 ; Knip- 
 per V. Chase, 7 Clarke (Iowa), 145.] 
 
 * Story on Bills, § 43, 44, 45 ; Chitty on Bills, ch. 5, p. 153 (8th edit.) ; 
 Pardessus, Droit Comm. Tom. 2, art. 204. But in South Carolina it was held, 
 that a promise to pay a certain sum of money " with exchange on New 
 York," is not a Promissory Note under the statute of Anne, as the amount 
 cannot be fixed without extrinsic evidence. Read v. McNulty, 12 Rich. 
 (Law), 445. So in Illinois. Lowe v. Bliss, 24 111. 168. Also in Canada. 
 9 Jones, Com. P. 172. In Wisconsin it was held otherwise. Leggett v. 
 Jones, U Wis. 34. Also in Michigan. Smith v. Kendall, 9 Mich. 241. 
 A Note payable with current rate of exchange at the place of its date, and 
 where it is payable, is payable in coin, and as there is no exohanffe the 
 words are of no meaning. Hill v. Todd,> 29 111. 101 ; Clausen v. Stone, lb. 
 114. A Note payable in current funds is payable in legal currency. Phoe- 
 nix Ins. Co. V. Allen, 11 Mich. 501. 
 
CHAP. I.] NATURE AND REQUISITES. 21 
 
 species of money should be expressed, otherwise the current 
 money will be intended.^ 
 
 § 18. It is upon the like ground that it is held essential to 
 a Promissory Note, that it should be for the payment of 
 money in specie.^ Therefore, a promise to pay a certain sum 
 of money " in good East India bonds," ^ or " in cash, or Bank 
 of England notes," * or " in bank-bills or notes," ^ or " in for- 
 eign bills," ^ or " in current bank-notes," ^ or " to pay a sum 
 
 ' Heinecc. de Camb. cap. 5, §§ 5, 12. 
 
 ^ Bayley on Bills, ch. 1, § 4, p. 10 (5th edit.). 
 
 " Anon. Bull. N. P. 272. 
 
 ' Bayley on Bills, eh. 1, § 4, p. 10 (5th edit.) ; Chitty on Bills, ch. 5, 
 p. 154 (8th edit); Ex parte Imeson, 2 Rose, 225; Ex parte Davison, 
 Buck, 31. 
 
 ° M'Cormick v. Trotter, 10 Serg. & R. 94 ; Leiber v. Goodrich, 5 Cowen, 
 186. 
 
 ' Jones V. Fales, 4 Mass. 245 ; Young v. Adams, 6 Mass. 182, 183 ; 
 Springfield Bank k. Merrick, 14 Mass. 322. 
 
 ' Gray v. Donahoe, 4 Watts, 400 ; Whiteman o. Childress, 6 Humph. 
 303 ; Fry v. Rousseau, 3 McLean, 106. In some of the American States 
 this doctrine has not been strictly adhered to. Thus, in New York, it has 
 been held, that a Note " payable in York State bills, or specie," is a 
 good Promissory Note, upon the ground that the language meant the same 
 as lawful current money of thg State, that is, as bank-bills of banks of the 
 State, which, in common usage and understanding, are regarded as cash. 
 Keith V. Jones, 9 John. 120. So, in a subsequent case in New York, a 
 Note, " payable in bank-notes current in the city of New York," was held 
 a good Promissory Note upon the like ground. And the Court said that, if 
 payable in bank-notes generally, the same doctrine would apply. Judah 
 V. Harris, 19 John. 144. [So, also, in Ohio, a Note payable "in current 
 Ohio bank-notes " has been held to be negotiable. Swetland v. Creigh, 15 
 Ohio, 118 ; White v. Richmond, 16 Ohio, 5. So, also, in Mississippi, with 
 a Note payable " in notes of the banks of Mississippi, payable and negotia- 
 ble in any bank" in that State. Besancon v. Shirley, 9 S. & M. 457. See 
 also CockriU v. Kirkpatrick, 9 Mo. 697 ; Bizzell v. Williams, 3 English, 
 Ark. 138.] It is very difficult upon principle or authority to sustain 
 these decisions ; for bank-notes are not in reality money, nor are they a 
 good tender, if objected to ; and, although treated in common business as 
 cash, they are distinguishable from it, and often pass at a variable discount. 
 See also Ste^fart v. Dohelly, 4 Yerg. 177; Deberry v. Darnell, 5 Yerg. 
 451 ; Seeley k. Bisbee, 2 Verm. 105 ; Williams v. Sims, 22 Ala. 512. A 
 Note " payable in funds current at Pittsburg," is not negotiable. Wright 
 V. Hart, 44 Penn. St. 454. 
 
22 PROMISSORY NOTES. [CHAP. I. 
 
 of money or surrender I. S. to prison," ^ is not a good Prom- 
 issory Note. So, the Note must not only be for the payment 
 of money, but of money only. Therefore a written promise 
 to pay a certain sum of money, " and all fines according to 
 rule," is not a valid Promissory Note.^ [A note contingent 
 in any of its terms, or made expressly subject to the equities 
 between the parties, is not a Promissory Note.^] 
 
 § 19. The French law proceeds upon similar grounds. In 
 order to constitute the Note a valid Promissory Note, it must 
 be for the payment of money, and mention the sum to be 
 paid.* Indeed, this seems so fundamental a principle in all 
 negotiable paper designed to circulate as currency, that it 
 may well be presumed to be a matter of universal adoption 
 in the commercial world. Heineccius so manifestly under- 
 stands the doctrine, and holds it to be a promise to pay a 
 certain sum of money, certam pecwnice summam.^ 
 
 § 20. In the next place, to make a written promise a valid 
 Promissory Note, it must be for a fixed and certain amount, 
 and not for a variable amount.® Therefore, if it be for a cer- 
 tain sum of money, with all other sums that may be due to 
 the payee, it is not a valid Promissory Note, even for the sum 
 
 ' Chitty on Bills, ch. 5, p. 154 (8th edit.) ; Smith v. Boheme, 3 Ld. 
 Kaym. 67, cited 2 Ld. Kaym. 1362, 1396 ; Bayley on Bills, ch. 1, § 6, p. 16 
 (5th edit.). 
 
 ' Ayrey v. Fearnsides, 4 M. & W. 168. But a Note payable in money 
 or in something else, before maturity, at holder's election, is a Promissory 
 Note. Hodges v. Shuler, 22 N. Y. 114; Hosstatter v. Wilson, 36 Barb. 
 307. These cases overrule the case of Leavitt v. Blatchford, 17 N. Y. 521, 
 to the same point. 
 
 ' Dilley v. Van Wie, 6 Wis. 209 ; Loftus v. Clark, 1 Hilton, N. Y. 310. 
 
 * Pothier, De Change, n. 30; Code de Comm. art. 188; Pardessus, 
 Droit Comm. Tom. 2, art. 334, 478; Dupny de la Serra, De Change, ch. 
 19, pp. 191, 192; Jousse, Sur L'Ord. 1673, tit. 5, art. 1, pp. 67, 68; Nou- 
 guier, De Change, Tom. 1, Liv. 4, § 1, pp. 493, 494, 496. 
 
 ' Heinec. de Camb. cap. 1, § 9 ; Id. cap. 2, §§ 1 -4 ; Seaccia, De Comm. 
 § 1, Quest. 5, p. 169, n. 2. 
 
 • Bayley on Bills, ch. 1, § 4, p. 11 (5th edit); Story on Bills, §42; 
 Read v. McNulty, 12 Rich. S. C. (Law), 445; Lowe v. Bliss, 24 111. 168 
 Palmer v. Ward, 6 Gray, 340. 
 
CHAP. I.] NATURE AND EEQUISITES. 23 
 
 which it specifies.! So, a promise to pay a specified sum of 
 money and. interest, and also " the demands of the Sick Cluh 
 at H., in part of interest, and tlie remaining stock and inter- 
 est to be paid on demand," to the payee, is not a valid 
 Promissory Note.^ So, a written promise to pay a certain 
 sum, " first deducting thereout any interest or money which 
 I. S. might owe the maker on any account," is, on the same 
 account, not a good Promissory Note.^ So, a written prom- 
 ise to pay certain sums in instalments, a part " to go as a 
 set-off for an order of R to G, and the remainder of his debt 
 from C D to him," * or a written promise " to pay 1 1,000, or 
 what might be due after deducting all advances and ex- 
 penses," fall under the same category, and are void as Prom- 
 issory Notes.^ The amount to be paid, however, if it be a 
 fixed sum, need not be expressed in words ; but it will be 
 sufficient if it be in figures.® 
 
 § 21. The French law, like ours, requires the sum which' 
 is to be paid to be certain and fixed.'^ The sum is usually 
 expressed in letters, rather than by ciphers or figures, so as 
 te avoid the peril of any alteration of the sum. But if it is 
 expressed in ciphers or figures, it will be good by our law, as 
 well as by the French law.^ Heineccius lays down the same 
 
 ' Smith V. Nightingale, 2 Stark. 375 ; Dodge v. Emerson, 34 Maine, 96. 
 
 ' Bolton V. Dugdale, 4 B. & Ad. 619, 
 
 ' Chitty on Bills, ch. 5, p. 153 (8th edit.) ; Barlow v. Broadhurst, 4 
 Moore, 471 ; ante, § 18. But a Note for $100, payable in. forty days, with 
 interest, subject to deduction by showing certain overcharges in certain 
 bills, was held a good Promissory Note, unless defendant proved the deduc- 
 tions to be made. Green u.' Austin, 7 Clarke (Iowa), 521. 
 
 * Dayies v. Wilkinson, 10 A. & El. 98 ; Clarke v. Percival, 2 B. & Ad. 
 661. 
 
 ' Cushmanu. Haynes, 20 Pick. 132. 
 
 ' Nugent V. Roland, 12 Martin, 659 ; post, § 21. , 
 
 ' Code de Comm. art. 188 ; Pardessus, Droit Comm. Tom. 2, art. 334, 
 478 ; Pothier, De Change, n. 35 ; Story on Bills, § 44. • 
 
 ' Pothier, De Change, n. 35 ; Story on Bills, § 42, note ; Locre, Esprit 
 du Code de Comm. Tom. 1, Liv. 1, tit. 8, § 1, pp. 836, 337 ; Chitty on Bills, 
 ch. 5, p. 181 (8th edit.). 
 
24 PROMISSORY NOTES. [CHAP. I. 
 
 as the general law, although he admits^ that in some coun- 
 tries the sum is required to be written in letters and words, 
 as well as in ciphers or figures.^ Where the sura in figures 
 on the superscription differs from the sum in words in the 
 body of the instrumient, the latter is by our law deemed the 
 true sum.^ Marius gives as a reason for such a decision, 
 which certainly seems founded in common sense and experi- 
 ence, that a man is more apt to commit an error with his pen 
 in writing a figure than he is in writing a word.^ Whether 
 the same rule would apply if the sum were in figures in the 
 body of the instrument, and in words in a memorandum or 
 marginal note on the same, does not appear to have been de- 
 cided ; but it should seem that the words ought to be deemed 
 the better and more solemn statement, and therefore ought 
 to govern.* 
 
 § 22. In the next place, to make a written Note for the 
 payment of money a valid Promissory Note, the money must 
 be payable absolutely, and at all events, and not be subject 
 to any condition or contingency.^ Thus, a written promise 
 to pay money, " provided the terms mentioned in certain let- 
 ters shall be complied with," « or " provided A shall not be 
 surrendered to prison within a limited time," "^ or " provided A 
 shall not pay the money by a particular day," * or " provided 
 
 ' Heinec. de Camb. cap. 4, § 5 ; Id. § 12. 
 
 " Chitty on Bills, ch. 5, p. 182 (8th edit.) ; Saunderson v. Piper, 5 Bing. 
 N. Cas. 425 ; Id. 560 ; Story on Bills, § 42, and note. 
 
 ' Marius on Bills, 33, 34. 
 
 * Story on Bills, § 42, and note. 
 
 » Bayley on Bills, ch. 1, § 6, p. 16 (5th edit. 1830) ; Chitty on Bills, eh. 
 5, pp. 154, 155 (8th edit.) ; Id. ch. 12, pp. 560, 561 ; Palmer v. Pratt, 2 Bing. 
 185; 9 Moore, 358; Carlos v. Pancourt, 5 Term, 482; Richards v. Rich- 
 ards, 2 B. & Ad. 447; Drury v. Macaulay, 16 M. & W. 146; Story on 
 Bills, §§ 42, 48 ; Bunker v. Athearn, 35 Maine, 364 ; Hubbard v. Mosely, 
 11 Gray, 170. 
 
 " Ibid. ; Kingston v. Long, 4 Doug. 9. 
 
 ' Ibid. ; Smith v. Boheme, Gilb. Cas. Law & Eq. 93 ; 3 Ld. Raym. 67, 
 cited 2 Ld. Raym. 1362, 1396 ; 7 Mod. 418. 
 
 ' Ibid. ; Appleby v. Biddolph, cited 8 Mod. 363 ; 4 Vin. Abr. 240, pi. 
 
CHAP. I.] KATURE AND REQUISITES. 25 
 
 A. shall leave me suflBcient, or shall be otherwise able to pay 
 it," ^ or " when A shall marry," ^ [or " when the payee shall 
 become twenty-one years of age," ^] or " if A shall marry," 
 or " if I shall marry within two months," or " four years 
 after date, if I am then living, otherwise this Note to be null 
 and void," * or " provided A shall not return to England, or 
 his death be certified, before " the day appointed for pay- 
 ment,® or " to pay when my circumstances will admit, with- 
 out detriment to myself or family," ® or to pay, " provided 
 the ship Mary arrives free from capture or condemnation^" '^ 
 or to pay when the payee " completes the building according 
 to contract,"^ [or "to pay in ninety days, or when real- 
 ized,"^ or. to pay on demand, provided no demand be made 
 so long as the interest is paid,'"'] or " when certain carriages 
 ai-e sold," ^^ or to pay a certain sum by instalments at certain 
 specified future periods,^^ but all installed payments to cease 
 at the death of the payee,^^ or to pay A (a sailor) his wages, 
 
 16 ; Eobbins v. May, 11 A. & El. 213 ; S. C. 3 Perr. & Davis, 1479 ; Fer- 
 ris V. Bond, cited Bayley on Bills, eh. 1, § 6, p. 17 (5tli edit.). 
 
 ' Ibid. ; Roberts v. Peaks, 1 Burr. 323. 
 
 ' Ibid. ; Chitty on Bills, ch. 5, p. 155 (8tli edit.) ; Beardsley v. Baldwin, 
 2 Str. 1151 ; , Pearson v. Garrett, 4 Mod. 242 ; S. C. Garth. 227 ; Colehau 
 V. Cooke, Willes, 397. 
 
 ' Kelly V. Hemmingway, 13 111. 604. 
 
 * Chitty on Bills, ch. 5, p. 155 (8th edit.) ; citing Braham v. Bubb; Wor- 
 ley V. Harrison, 3 A. & El. 669 ; S. C. 3 Nev. & Mann. 173. 
 
 * Morgan v. Jones, 1 Cromp. & Jerv. 162, S. C. 1 Tyrw. 29; Chitty on 
 Bills, ch. 5, p. 155 (8th edit.). 
 
 ' Ex parte Tootell, 4 Ves. 372. But to pay when convenient, with in- 
 terest, is a valid Note, payable in a reasonable time. Lewis v. Tipton, 
 10 Ohio St. 88. 
 
 ' Palmer v. Pratt, 2 Bing. 185 ; Coolidge v. Euggles, 15 Mass. 388. 
 
 ' See Stevens v. Blunt, 7 Mass. 240. This case turned upon another 
 point, that the money was, upon the true construction of the Note, payable 
 at a fixed day. 
 
 ' Alexander v. Thomas, 2 Eng. Law & Eq. 286. 
 
 '" Seacord v. Burling, 5 Denio, 444. 
 
 " De Forrest v. Frary, 6 Cowen, 151. 
 
 " [See- Washington Co. Mut. Ins. Co. v. Miller, 26 Verm. 77.] 
 
 " Worley v. Harrison, 3 A. & El. 669. 
 
26 PROMISSORY NOTES. [CHAP. U 
 
 " if he do his duty as an able seaman," ^ or " to pay on the 
 sale or produce immediately when sold of the White Hart 
 Inn, and the goods, &c.,"2 is not a valid Promissory Note ; 
 for it purports to make the payment depend upon a contin* 
 gency or uncertainty. [The like rule applies to a memoran- 
 dum, as folbws : " Due A B, $100, to be paid as wanted for 
 her support ; if no part is wanted, it is not to be paid." *] 
 In all these cases, it will make no difference that the contin- 
 gency does in fact happen afterwards, on which that pay-* 
 ment is to become absolute ;. for its character as a Promis- 
 sory Note cannot depend upon future events, but solely upon 
 its character when created.^ , 
 
 § 23. The like rule will apply to promises in writing for 
 money, which per se might properly be deemed Promissory 
 Notes, if there is upon the same paper a contemporaneous 
 memorandum, which shows it to be for a specific purpose, in- 
 volving contingencies and uncertainties.^ Thus, a memoran-* 
 dum on a Note, that it is taken " for securing the payment of 
 all such balances as shall be due from one of the makers, to 
 the extent of the sum mentioned therein," ® or that " if any 
 dispute shall arise respecting the subject, which is the con- 
 sideration of it, it shall be void," ^ [or that the Note is not to 
 
 ' Chitty on Bills, ch. 5, p. 155 (8th edit.) ; Alves v. Hodgson, 7 Term, 
 242. 
 
 = Hill V. Halford, 2 Bos. & Pull. 413. 
 
 ' Gordon o. Rundlett, '8 Foster, 435. 
 
 * Hill V. Halford, 2 Bos. & Pull. 413 ; But see Glancy v. Elliott, 14 III. 
 456. 
 
 ' Bayley on Bills, ch. 1, § 14, pp. 41, 42 (5th edit.) ; Chitty on Bills, ch. 
 5, p. 160 (8th edit.) ; Id. 163. See Pool,«). McCrary, 1 Geo. 319 ; Effin- 
 ger V. Richards, 35 Miss. (6 George), 540. 
 
 ° Bayley on Bills, ch. 1, § 6, p. 20 (5th edit.) ; Leeds v. Lancashire, 2 
 Camp. 205; Chitty on Bills, ch. 5, p. 160 (8th edit); Id. 161. But a 
 promise to pay as per memorandum of agreement was held to be uncondi- 
 tional and negotiable. Jury v. Baker, 1 Ellis, B. & E. 459. 
 
 ' Bayley on Bills, ch. 1, § 6, p. 20 (5th edit.) ; Id. § 14, pp. 41, 42 ; Hart- 
 ley V. Wilkinson, 4 Camp. 127 ; S. C. 4 M. & S. 25 ; Chitty on Bills, ch. 5, 
 p. 161 (8th edit.). 
 
CHAP. I.] NATURE AND REQUISITES. 2T 
 
 be demanded if the payee die,^] will deprive the instrument 
 of the character of a Promissory Note. For the like reason, 
 an instrument, acknowledging the receipt of drafts for the 
 payment of money, and promising to pay the money specified 
 in the drafts, is not a Promissory Note ; for the payment of 
 the money is contingent, and depends upon the payment of 
 the drafts.^ 
 
 § 24. However, in order to make a Note invalid as a Prom- 
 issory Note, the contingency to avoid it must be apparent, 
 either upon the face of the Note, or upon some contempora- 
 neous written memorandum on the same paper ; ^ for, if the 
 memorandum is not contemporaneous, or if it be merely ver- 
 bal in each case, whatever may be its eifect as a matter of 
 defence between the original parties, it is not deemed to be a 
 part of the instrument, and does not affect, much less invali- 
 date, its original character.* This is a general rule, not con- 
 fined to Bills, of Exchange, but it extends to all written con- 
 tracts ; 8 and the same law prevails iu France with respect to 
 Bills, where parol evidence is not ordinarily admitted to ex- 
 tend or qualify the terms of those instruments.^ Therefore, 
 where a Promissory Note, on the face of it, purported to be 
 payable on demand, it was held, that parol evidence was not 
 admissible to show that, at the time of making it, it was 
 agreed that it should not be payable until after the decease 
 of the testator,'^ or until certain estates of the maker had been 
 sold ; ^ or that it should not be payable, if the maker's allow- 
 ance under a commission against him should not be sufficient 
 
 ' Richardson v. Martyr, 30 Eng. Law & Eq. 365. 
 
 ' Bayley on Bills, ch. 1, § 6, p. 21 (5th edit.) ; Williamson v. Bennett, 2 
 Camp. 417; Chitty on Bills, ch. 5, p. 155 (8th edit.) ; Id. 161. 
 
 = Richards v. Richards, 2 B. & Ad. 447, 454, 455. 
 
 ' Chitty on Bills, ch. 5, pp. 160, 161, 163 (8th edit.) ; Connor v. Clark, 
 12 Cal. 168. 
 
 ' Sugd. Vend. & Purch. tit. Evidence; Phillips & Ames onEvid. p. 753 
 (edit. 183§). 
 
 ' Pardessus, Droit Comm. Tom. 2, art. 262. 
 
 ' Woodbridge v. Spooner, 3 B. & Al. 233; S. C. 1 Chitty, 661. 
 
 ' Free v. Hawkins, 8 Taunt. 92 ; S. C. Holt, N. P. 550. 
 
28 PROMISSORY NOTES. [CHAP. I. 
 
 to pay the amount ; ^ or, that it should not be payable until a 
 final dividend of a bankrupt's estate should have been made.^ 
 So, if a note be payable at nine months after date, parol evi- 
 dence of the holder's agreement to give the maker time, if, 
 at maturity it was not convenient to pay, is inadmissible.^ 
 So, where a Promissory Note was on the face of it made paya- 
 ble on demand, it was decided that oral evidence of an agree- 
 ment,- entered into when it was made, that _it should not be 
 paid until a given- event happened, is inadmissible.* 
 
 '■ Rawson v. Walker, 1 Stark. 361; and Campbell v. Hodgson, Gow, N. 
 P. T4. 
 
 = Rawson v. Walker, i Stark. 361. See ante, § 22. 
 
 ' Dukes V. Dow, cited Chitty on Bills, ch. 5, p. 162, note (8th edit.). 
 ' * Mosely v. Hanford, 10 B. & C. 729. Declaration against the maker of 
 a Promissory Note for £233, payable to the bankrupt or his order on de- 
 mand. Plea, general issue. At the trial before Alexander, Ld. C. B., at 
 the last assizes for the county of Derby, the handwriting of the defendant 
 to the Note set out in the declaration was proved. Evidence was given on 
 the part of the defendant, that he and one Richardson, being in partnerr 
 ship as booksellers, at Derby, agreed to purchase certain premise»belonging 
 to the bankrupt, and it was stipulated that the bankrupt should deliver up 
 possession by the 1st of August, 1825, or pay for the time he should keep 
 possession beyond that day a rent agreed upon between the parties. That 
 on the 1st of August, 1825, Richardson and the defendant paid up the 
 whole of the purchase-money, except £233; and that the defendant, with 
 the consent of the bankrupt, gave his sole Note for the balance, it being 
 expressly stipulated that it was to be paid on the bankrupt's delivering up 
 possession of the premises, and accounting for the rent on the 1st of Au- 
 gust. It was further proved, that part of the premises continued in pos- 
 session of the bankrupt's sister down to and since the commencement of 
 the action. A verdict having been found for the plaintiff,. Denman, on a 
 former day in this term, moved for a new trial, on the ground that the ver- 
 dict was against the weight of evidence. But the Court intimated a doubt 
 whether parol evidence could be given to restrain the effect of a Promis- 
 sory Note absolute on the face of it, and referred to Woodbridge v. Spooner, 
 3 B. & Aid. 233, as an authority to the contrary ; and Parke, J. observed, 
 that every Bill or Note imported two things : value received, and an en- 
 gagement to pay the amount on certain specified terms ; that evidence was 
 admissible to deny the receipt of value, but not to vary the engagement:' 
 Lord Tenterden, C. J., afterwards delivered the judgment of the Court, 
 and, after stating the facts of the case, proceeded as follows : " When this 
 application for a new trial was made, it oocurred to the Court, that the evi- 
 
CHAP. I.J NATURE AND REQUISITES. 29 
 
 § 25. The like rule will apply in cases where a written 
 promise for money, which otherwise would be a good Prom- 
 issory Note, is made payable out of a particular fund, so that 
 the payment is to depend upon the existence or sufficiency 
 of that fund ; for that will render it invalid as a Promissory 
 Note.^ Thus, a Note for the payment of money " out of my 
 growing subsistence," ^ or " out of the fifth payment when 
 due," ^ or " out of money when received," * or " out of 
 rents," ^ [or " out of the net proceeds of ore to be raised and 
 
 dence given on behalf of the defendant ought not to have been received, 
 on the ground that evidence of an agreement that the Note was not to 
 be put in suit until a given event happened was not admissible ; the effect 
 of it being to contradict by parol the Note itself; and upon consideration 
 ■we are of opinion that upon principle as well as authority that evidence 
 was not admissible." Chitty on Bills, ch. 5, p. 163 (8th edit.). Several 
 cases to that effect are collected in Selwyn's Nisi Prius, 394 ; Hoare v. Gra- 
 ham, 3 Camp. 57 ; Free v. Hawkins, 8 Taunt. 92. 
 
 ' Bayley on Bills, ch. 1, § 6, pp. 18, 19, 20 (5th edit.) ; Chitty on Bills, 
 ch. 5, pp. 157, 158, 159 (8th edit.) ; Story on Bills, § 46. 
 
 ^ Ibid. ; Josceline v. Lassere, Fortes. 281 ; 10 Mod. 294, 316. 
 
 " Ibid. ; Haydock v. Lynch, 2 Ld. Kaym. 1563. 
 
 * Ibid.; Dawkes v. Lord Deloraine, 2 W. Black. 782; 3 Wils.'207; 
 Yeates v. Grove, 1 Ves. Jr. 280, 281 ; Carlos v. Fancourt, 5 Term, 482. 
 
 ' Ibid.; See Jenny v. Herle, 2 Ld. Eaym. 1362 ; 1 St. K. 591, 592; 8 
 Mod. 265; Fortes. 282; Dawkes v. Lord Deloraine, 3 Wils. 207, 213. In 
 this last case, Lord Chief Justice De Grey, in delivering the opinion, speak- 
 ing of a Bill of Exchange (and the same rule is applicable to a Promissory 
 Note), said: " The instrument, or writing, which constitutes a good Bill of 
 Exchange, according to the law, usage, and custom . of merchants, is not 
 confined to any certain form or set of words, yet it must have some essen- 
 tial qualities without which it is no Bill of Exchange; it must carry with it 
 a personal and certain credit, given to the drawer, not confined to credit 
 upon any thing or fund ; it is upon the credit of a person's hand, as on the 
 hand of the drawer, the indorser, or the person who negotiates it ; he to 
 whom such Bill is made payable or indorsed takes it upon no particular 
 event or contingency, except the failure of the general personal credit of 
 the persons drawing or negotiating the same. In the present case, the 
 drawer did not make this writing, or instrument, upon his own personal 
 general credit, that in all events he would be liable in case Brecknock 
 should not pay it out of William Steward's money ; but both the drawer and 
 the person to whom payable look only at the fund, and no personal credit 
 is given to the defendant, the drawer." 
 
30 PEOMISSOEY NOTES. [CHAP. I. 
 
 sold from a certain ore bed," ^ or to pay by another Note,^] 
 is not a valid Promissory Note, on account of the uncertainty 
 whether the subsistence, or rents, or payments, or money 
 will become due or be received. 
 
 § 26. But here it is important to bear in mind the distinc- 
 tion between cases where a Note is payable out of a particular 
 fund, and it rests in contingencies whether there will be -any 
 such fund or not, or whether it will be sufficient, and cases 
 where the fund is only referred to as an absolute existing 
 fund, as the consideration of the promise, and on account of 
 which the money is to be paid.^ In the latter cases, no con- 
 tingency is contemplated ; the money is to be paid at all 
 events ; and the fund is referred to only to show why the 
 promise is made, and so pro tanto to discharge the maker of 
 the Note. Thus, a Note promising to pay A B or order a 
 sum of money, " being money which I have received on his 
 account," * or " which I have received as his half-pay," ^ or 
 " which I owe him for freight," ® or " which is a portion of his 
 money deposited with me in security for the payment there- 
 of," '' or to pay to A B a certain sum of money, " so much 
 being to be due from me to C D, my landlady, at Lady Day 
 next, who is indebted in that sum to A B,"^ or to pay A B 
 or order " on account of wine had from him," ^ will be a valid 
 Promissory Note, as importing the consideration only for 
 which it is given. So a promise to pay A B or bearer a cer^ 
 tain sum at sight, " by giving up clothes and papers," &c., 
 will be a good Promissory Note, if it can be gathered from 
 
 ' Worden v. Dodge, 4 Denio, 159 ; Stewart v. Street, 10 Cal. 372. 
 
 = Russell V. Phillips, 14 A. & El. (N. S.) 891. 
 
 ' Bayley on Bills, ch. 1, § 6, pp. 22, 23 (5th edit.) ; Chitty on Bills, eh. 
 6, pp. 158, 159 (8th edit.) ; Story on Bills, § 47. 
 
 * Ibid. See HaussouUier v. Hartsinck, 7 Term, 733. 
 
 ' Ibid. See Qoss v. Nelson, 1 Burr. 226. 
 
 ' Ibid.; Pierson v. Dunlop, Cowp. 571. 
 
 ' Ibid. ; HaussouUier v. Hartsinck, 7 Term, 733. 
 
 ' Ibid.; Anon. Select Cases, 39, cited Chitty on Bills, ch. 5, p. 159 (8tli 
 edit.). 
 
 » BuUer v. Crips, 6 Mod. 29. 
 
CHAP. I.] NATUBE AND REQUISITES. 81 
 
 the attendant facts that the clothes and papers had been 
 previously given up to the maker ; for, under such circum-- 
 stances, the words would only import the value received.^ 
 [The recital of the consideration in a Note is unusual, but 
 does not affect its negotiability.^] 
 
 § 27. In the next place, to constitute a valid Promissory 
 Note, it should be for the payment of money at some fixed 
 period of time, or on some event which must inevitably hap- 
 pen.^ This is indeed sufficiently apparent, and may be 
 deduced as a corollary from what has been already said. 
 Therefore, a written promise to pay a certain sum of money 
 at the death of a party to the instrument, or at a limited 
 tSne after the death of such party, or of a third person, is 
 a valid Promissory Note ; because it must inevitably be- 
 come due at some future time, since all men must die, 
 although the exact period is uncertain.* Upon a supposed 
 
 1 Dixon V. ISTuttall, 1 C, M. & K. 307 ; S. C. 6 C. & P. 320; 4 Tyrwh. 
 1013. 
 
 ' Ryland v. Brown, 2 Head (Tenn.), 270. 
 
 ' Story on Bills, § 50. See ante, § 22 ; Moffat v. Edwards, 1 Carr. & 
 Marsh. 16. See Walker v. Roberts, 1 Carr. & Marsh. 590. 
 
 * Story on Bills, § 47; Bayley on Bills, ch. 1, § 6, pp. 24, 25 (5th edit.) ; 
 Chitty on Bills, ch. 5, p. 156 (8th edit.) ; Id. ch. 12, p. 561 ; Bristol v. 
 Warner, 19 Conn. 7; Colehan y. Cooke, Willes,, 396 ; 2 Str. 1217. In 
 this last case the Note was payable ten days after the death of the maker's 
 father. The case was argued several times, and Lord Chief Justice Willea, 
 in delivering the opinion of the Court, said : " I will here take notice of all 
 the cases which were cited to the contrary, and will show that they all 
 stand on a different foot, and are plainly distinguishable from the present. 
 For they are all of them cases where either the fund out of which the pay- 
 ment was to be made is uncertain, or the time of payment is uncertain, and 
 might or might not ever happen ; whereas, in the present case, there is no 
 pretence that the fund is uncertain, and the time of payment must come, 
 because the father, after whose death they are made payable, must die one 
 time or other. The case of Pearson v. Garrett, 4 Mod. 242, and Comb. 
 227, was thus: the defendant gave a Note to pay sixty guineas when he 
 married B, and judgment was given for the defendant, because it was un- 
 certain whether.he would ever marry her or not, so the time of parent 
 might never come. In the case of Jocelyn v. Lacier, P. 1 Geo. 1, B. R. 
 , (20 Mod. 294, 316), the Bill was drawn on Jocelyn to pay so much every 
 
32 PROMISSORY NOTES. [CHAP. f. 
 
 like ground, it has been held, that a written promise to 
 
 -pay a certain sum in two months after a certain ship in the 
 
 government service shall be paid off, is a good Promissory 
 
 Note ; because, it is said, it is morally certain that the 
 
 month out of his growing subsistence ; how long that would last no one 
 could tell, or whether it would be sufficient for that purpose; and therefore 
 the Bill was holden not to be good, because the fund was uncertain. In 
 the case of Smith v. Boheme, M. 1 Geo. 1, B. R., cited 2 Ld. Raym. 1362, 
 the promise in the Note was to pay £70, or surrender a person therein 
 named ; if, therefore, he surrendered the person, there was no promise to 
 pay anything, and therefore the Note was uncertain, and not negotiable^ 
 In the. case of Appleby v. Biddulph, P. 2 Geo. 1, cited 8 Mod. 363, a prom- 
 ise to pay if his brother did not pay by such a time ; held not to be within 
 the statute, because it was uncertain whether the drawer of the Note 
 woujd ever be liable to pay or not. In the case of Jenny v. Herle, Tr. 
 10 Geo. 1 (2 Ld. Raym. 1361), a promise to pay such a sum out of the in- 
 come of the Devonshire mines ; held not a promise within the statute, 
 because it was uncertain whether the fund would be sufficient to pay it. 
 So, in the case of Barnsley v. Baldwin, P. 14 Geo. 2, B. R. (7 Mod. 417), 
 the promise was, as in the case of Pearson v. Garrett, to pay such a sum 
 on marriage ; and held not to be within the statute, for the same reason. 
 And as these Notes are plainly not within the intent of the statute, because 
 not negotiable ab initio, so, when the words themselves come to be consid- 
 ered, they are not within the words of it, because the statute only extends 
 to such Notes where there is an absolute promise to pay, and not a promise 
 depending on a contingency, and where the money at the time of the giv- 
 ing of the Note becomes due and payable by virtue thereof (so, are the 
 words of the statute), and not where it becomes due and payable by virtue 
 of a subsequent contingency, which may perhaps never happen, and then 
 the money will never become payable at all. And it can never be said, 
 that there is a promise to pay money, or that money becomes due and paya- 
 ble by virtue of a Note, when, unless such subsequent contingency happen, 
 the drawer of the Note does not promise to pay anything at all. But the 
 present Notes, and those cases where such Notes have been holden to be 
 within the statute, do not depend on any such contingency, but there is a 
 certain promise to pay at the time of the giving of the Notes, and the 
 mon,ey by virtue thereof will certainly become due and payable one time 
 or other, though.it is uncertain when that time will come. The Bills, there- 
 fore, of Exchange, commonly called Billce Nundinales, were always holden 
 to be good, because though these fairs were not always holden at a certain 
 time,*5'et it was certain that they would be held. The case, of Andrews v. 
 Franklin, H. 3 Geo. 1, B. R. (1 Str. 24), depends on the same reason ; for 
 there the Note was to pay such a sum two months after such a ship was , 
 
CHAP. I.] NATDEE AND REQUISITES. 33 
 
 government will pay off its sliips.^ There is certainly some 
 reason to doubt, whether this last case falls properly within 
 the doctrine ; for it can scarcely be affirmed, as a general 
 truth, that governments will or do pay all their just debts ; 
 and unless this can be affirmed, there is no moral certainty 
 that any particular debt will be paid.^ 
 
 § 28. It is this cei'tainty, either moral or physical, at least 
 to the extent of human foresight, which lies at the foundation 
 of the rule.^ Hence, a written promise to pay a certain sum 
 of money by instalments at future specified periods, but the 
 instalments to cease at the payee's death, is not a valid 
 Promissory Note ; for it may be, that the payee may die be- 
 fore any instalment becomes due, and therefore the money is 
 payable only on a contingency.* So, a promise to pay money 
 by instalments, not stating when, is not a good Promissory 
 Note, on account of the uncertainty of the time.^ Hence, 
 also, a written promise to pay money, when the maker or the 
 payee shall come of age, will not be a good Promissory Note ; 
 
 paid off; and held good because the ship would certainly be paid off one 
 time or other. The case of Lewis v. Ord, T. 8 & 9 Geo. 2, B. R. (Cunn. 
 on Bills, 113), was exactly the like case, and determined on the same rea- 
 son. As to the objection, that these are not negotiable Notes because the 
 value of them cannot be ascertained, the argument is not founded on fact, 
 because the value of a life, when the age of a person is known, is as well 
 settled as can be ; and there are many printed books in which these calcu- 
 lations are made. But if it were otherwise, the life of a man may be in- 
 sured, and by that the value will be ascertained. And the same answer 
 will serve to the objection which I before mentioned against such Bills of 
 Exchange. There was another objection taken, that the drawer might 
 have died before his father, and then these Notes would have been of no 
 value ; but there is plainly nothing in this objection, for the same may be 
 said of any Note payable at a distant time, that the drawer may die worth 
 nothing before the Note becomes payable." 
 
 ' Andrews v. Franklin, 1 Str. 24 ; Evans v. Underwood, 1 Wils. 262. 
 
 ^ See Bayley on Bills, ch. 1, § 6, p. 24 (5th edit.) ; Chitty on BilU, ch. 5, 
 p. 156 (8th edit.) ; Id. ch. 12, p. 501. 
 
 = Palmer v. Pratt, 2 Bing. 185 ; Carlos u. Fancourt, 5 Term, 482. 
 
 ' Worley v. Harrison, 3 A. & El. 669. 
 
 ' Moffat V. Edwards, 1 Carr. & Marsh. 16. 
 3 
 
34 PROMISSORY KOTES. [CHAP. L 
 
 for non constat that he will arrive at that period of life.^ 
 But it will be otherwise, if, from the other language of the 
 instrument, it can be gathered that a period is absolutely 
 fixed for the payment of the money at all events, and that 
 the age of the party is referred to not as a contingent event, 
 but merely as a mode of ascertaining that period. Thus, if 
 the maker promises to pay, when the payee shall come of 
 age, to wit, on the first day of January, 1850, it will be held 
 a valid Promissory Note ; for, in such a case, the Note is ab- 
 solutely payable on the day specified, whether the payee be 
 then living or not.^ It is to this same principle of interpre- 
 tation that we are to attribute the decision in another case, 
 where the maker promised to pay a certain sum " by the 20th 
 of May, 1807, or when he (the payee) completes the building 
 according to contract," and the Court held the instrument 
 to be a valid Promissory Note, it being payable absolutely at 
 a day certain (meaning the 20 th of May.)^ So where a Note 
 was made payable by instalments, with a proviso, that if de- 
 fault be made in payment of any part of the first instalment, 
 -the whole shall become immediately payable, has been held 
 to be a good negotiable Note ; for the time is absolutely fixed, 
 and must inevitably occur at the time when the last instal- 
 ment becomes due, if not by the prior event of non-payment 
 
 of the first instalment.* [A Note payable six after date 
 
 is not void for uncertainty, but the law will look at the facts 
 and circumstances, and infer the time of payment.^ Four 
 months after is four months after date.^] 
 
 § 29. Perhaps there may be thought to be some nicety in 
 
 > Goss V. Nelson, I Burr. 226 ; Bayley on Bills, ck 1, § 6, pp. 23, 24 (5tli 
 edit.) ; Kelley v. Hemmingway, 13 111. 604 ; Chitty on Bills, ch. 5, p. 156 
 (8th edit.) ; Id. ch. 12, p. 561. 
 
 ' Goss u. Nelson, 1 Burr. 226; Bayley on Bills, ch. 1, §6, p. 23 (Sth 
 edit.) * Chitty on Bills, ch. 5, p. 156 (Sth edit.) ; Id. ch. 12, p. 661. 
 
 » Stevens v. Blunt, 7 Mass. 240. 
 
 * Carlon v. Kinealy, 12 M. & W. 139. 
 
 ' Nichols V. Frothingham, 45 Maine, 229. 
 
 ' Pearson v. Stoddard, 9 Gray, 199. 
 
CHAP. I.] NATURE AND KEQUISITES. 35 
 
 tlie application of this doctrine to some particular classes of 
 cases, which, at first 'view, seem to import that payment is to 
 be made only upon the occurrence of events which may never 
 happen, and yet, which are uniformly held to be absolutely 
 payable at all events. Thus, if a Note be made payable at 
 sight, or at ten days after sight, or in ten days after notice, 
 or on request, or on demand, in all these and the like cases, 
 the Note will be held valid as a Promissory Note, and pay- 
 able at all events, although, in point of fact, the payee may 
 die without ever having presented the Note for sight, or with^ 
 out having given any notice to, or made any request or de- 
 mand upon, the maker for payment.^ But the law, in all 
 cases of this sort, deems the Note to admit a present debt to 
 be due to the payee, and payable absolutely and at all events, 
 whenever or by whomsoever the Note is presented for pay- 
 ment, according to its purport.^ Nay, where a note is pay- 
 able on demand, no other demand need be made, except by 
 bringing a suit thereon.^ So, where a Note does not specify 
 any day or time of payment, it is by law deemed payable on 
 
 '■ Chitty on Bills, ch. 5, p. 156 (8th edit.) ; Dixon v. Nuttall, 1 C, M. & 
 E. 307 ; S. C. 6 C. & P. 320; 4 Tyrwh. 1013 ; Clayton v. Gosling, 5 B. & 
 C. 360 ; Kumball v. Ball, 10 Mod. 38. See also Jousse, Sur L'Ord, 1673', 
 tit. 5, art. 1, pp. 67, 68,; Pothier, De Change, n. 32. 
 
 ' Chitty on Bills, ch. 5, p. 156 (8th edit.) ; Clayton v. Gosling, 5 B.' & C. 
 360. In this case, which was a Note for £200, payable " on having twelve 
 months' notice," for value received, the Court held it a good Promissory 
 Note, and provable in bankruptcy against the makers although he become 
 bankrupt before any notice was given to him by the payee. Upon that 
 occasion. Lord Tenterden said : " We have decided, on more than one oc- 
 casion, that the expression ' value received,' in a Note, imports ' received 
 from the payee.' The Note in question may therefore be read thus : ' We 
 acknowledge to owe the payee £200, and promise to pay him that sum with 
 inferest, twelve months after notice.' If so, there is not any contingency 
 as to the debt, for that is admitted to be due. Nor is the time of payment 
 contingent, in the strict sense of the expression ; for that means a time which 
 may or may not arrive ; this Note was made payable at a time which we 
 must suppose would arrive." 
 
 ' Bayley on Bills, ch. 9, p. 402 (5th edit.) ; Chitty on Bills, Pt. 2, ch. 2, 
 p. 590 (8th edit.) ; Id. ch. 4, pp. 608, 609 ; Kumball v. Ball, 10 Mod. 38. 
 
36 PEOMISSORT NOTES. [CHAP. L 
 
 demand, and therefore is construed as if it contained the 
 words " payable on demand " on its face.^ [So a Note prom- 
 ising to pay "1400 on demand with interest within six 
 months from date," is payable on demand.^] 
 
 § 30. Promissory Notes are not only Talid when payable 
 at sight, or at a fixed period after sight, or on request, or on 
 demand ; but they are also valid when the payment is to be 
 made at any other fixed period either established by law or 
 ascertained by usage, even when it may be effected by some 
 variations in its application to time. Thus, a Note payable 
 at Christmas, or New Year's Day, or upon any other holiday, 
 will be valid, because the period is fixed by law or usage. 
 So, a Note payable at one usance, or at two usances, or at a 
 half-usance, which are periods fixed in different countries by ^ ^ ^ ^ ^ ^ 
 usage, would be equally valid.^ 
 
 § 31. The. French law positively requires, that every Bill 
 of Exchange, and every Promissory Note, shall express the 
 time when it is to be paid, otherwise it is held not to be valid 
 as a Bill or Note, but only as a simple contract.* But in 
 other respects it does not seem to differ from our law, as to 
 the mode of expressing the time of payment ; for it may be 
 at sight or at a certain number of days after sight, or after 
 the date of the Bill, or at the expiration of a certain number 
 of weeks or moiaths, or on a certain day of a month, or at 
 a fixed feast, fair, or holiday, civil or religious ; or at one or 
 more usances.* Heineccius also takes notice of the like doc- 
 
 1 Thomson on Bills, ch. 1, § 2, p. 32 ; Bayley on Bills, ch. 3, § 14, p. 109 
 (5tli edit.) ; Green u. Drebilbis, 1 Greene, lo. 55. 
 
 2 [Jillson u.' I-Iill, 4 Gray, 31G.] 
 
 ' Story on Bills, §§ 50, 144,-332 ; Bayley on Bills, cli. 7, § 1, pp. 250, 251 
 (5tli edit.) ; Chi'tty on Bills, ch. 9, p. 404 (8th edit.) ; Pothier, De Change, 
 n. 15, 16, 32 ; Coin. Dig. Merchant, F. 6 ; Savary, Le Parfait Negoeiant, 
 Tom. 1, Pt. 3, ch. 4, pp. 816, 817; Nouguier, Des Lettres De Change^ 
 Tom. 1, Liv. 3, ch. 1, § 5, pp. 87 - 91. 
 
 * Code de Comm. art. 110; Pardessus, Droit Coram. Tom. 2, art. 336; 
 Jousse, Sur L'Ord. 1673, art. 1, pp. 67, 68 ; Pothier, De Change, n. 12-16, 
 32; Delvincourt, Droit Comm. Tom. 1, Liv. 1, tit. 7, pp. 76, 77 (2d edit.). 
 
 ' Pardessus, Droit Comm. Tom. 2, art. 336 ; Id. art. 183 ; Code de Comm. 
 
CHAP. I.] . NATURE AND KKQUISITES. 37 
 
 trine as generally prevailing on tlio subject of the time of 
 payment of Bills. " Gambia platearum sunt, vol a Vista, 
 quando solutio injungitur aliquot diebus post visum cambium, 
 vel a Dato, quando acceptans solvere jubetur intra ccrtum 
 tempus a datis litteris cambialibus ; vel denique a Uso, quan- 
 do tempore consueto solvere tenetur acceptans." ^ Usance, he 
 afterwards remarks, differs in different places in Germany, 
 the usance being at Leipsic, Brandenburg, Frankfort, and 
 Dantzic, fourteen days, and, in some other places, fifteen 
 days.^ But, in whatever mode or way the time of payment 
 is to be ascertained, whether it be payable at or after sight 
 or date, or at a feast, or usance, or otherwise, Heineccius 
 holds it of primary importance that every Bill should clear- 
 ly express the time of payment. " In ipsis litteris cambiali- 
 bus, primo omnium esprimendus est dies solutionis." ^ 
 
 § 32. Upon the same ground. Bills of Exchange, payable 
 at fairs, commonly called BUIcb Nundinales, were formerly 
 held good (and the like rule will apply to Promissory Notes 
 payable at fairs), because although these fairs were not al- 
 ways holden at a certain time, yet it was certain that they 
 would be held.* The same rule exists in France. Thus, for 
 example, there are at Lyons four fairs held, each of a month, 
 commonly called Les Paiemens de Lyon, and Bills of Ex- 
 change payable at such fairs never make mention of any 
 other time than the time of the fair, without naming any pre- 
 cise day ; yet they are held to be good Bills of Exchange, 
 and are payable after the first and before the seventh day of 
 the fair.^ Bills of Exchange of a similar character, and 
 
 art. 129 - 131 ; Potliier, De Change, u. 15, 16, 32 ; Jousse, Sur L'Ord. 
 1673, art. 1, pp. 67-69. 
 
 ' Heinecc. de Camb. cap. 2, § 13 ; Id. cap. 4, § 6. 
 
 ' Ibid. 
 
 " Ibid. cap. 4, § 6. 
 
 * Colehan v. Cooke, Willes, 393, 398, 399 ; Chrtty on Bills, ch. 5, p. 156 
 (8th edit.). 
 
 ' Pothier, De Change, n. 16 ; Dupuy de la Serra, L'Art. de Change, p. 
 29, u. 33 (edit. 1789) ;'jousse, Comm. Sur L'Ord. 1673, tit. 5, p. 69 (edit. 
 
38 PROMISSORY NOTES. [CHAP. I. 
 
 payable at fairs, prevail in Germany and other parts of the 
 continent of Europe, and are called by Heineccius Gambia 
 Feriarum.^ He adds that in Germany they are to be pre- 
 sented within a certain time, otherwise they are no longer 
 admitted ; and at Leipsic they are presentable a,t the vernal 
 and autumnal fairs, and are then payable on the Thursday 
 of the last week of the fair, without any allowance of days 
 of grace .^ 
 
 § 33. In the next place, it is essential to the validity of a 
 Promissory Note that it should contain no contingency or 
 uncertainty as 'to the person by whom it is payable, or to 
 whom it is payable.^ This is, indeed, but a mere application 
 of a general rule, which governs in respect to other con- 
 tracts.* In the first place, the name of the particular person 
 to whom it is payable should be given ; and it should not be 
 in the alternative, as payable to A B or to C D. Therefore a 
 Note whereby the maker should promise to pay " to A B or 
 to C D, or his or their order," is not a valid Promissory 
 Note ; for it is not payable to A B and C D, but to either of 
 tliem, and that only on the contingency of its not having 
 
 1802) ; Pardessus, Droit Comm. Tom. 2, § 183, p. 65 ; Code de Comm. art. 
 129, 133 ; Nouguier, De Change, 'Tom. 1, § 5, n. 6, 6, p. 90 ; Scaccia, De 
 Comm. § 2, Gloss. 4, p. 494. 
 
 ' Heinecc. de Camb. cap. 2, §§ 12, 13. 
 
 = Heinecc. de Camb. cap. 2, § 15. See also Nouguier, De Change, Tom. 
 2, p. 556. 
 
 » Chitty on Bills, ch. 5, p. 159 (8th edit.) ; Id. 160 ; Id. 177 ; Bayley on 
 Bills, ch. 1, § 10, p. 34 (5th edit.) ; Story on Bills, § 54 ; Per Chief Baron 
 Eyi-e in Gibson v. Minet, 1 H. Black. 608. 
 
 In Iowa no action lies upon a Note given to an unincorporated associa- 
 tion, though brought in the name of an officer to whom it was given. Night- 
 ingale V. Barney, 4 Greene, 106. But in Indiana the real name need not 
 be given ; the payee may be designated by any style agreed upon by the 
 parties. Moore v. Anderson, 8 Ind. 18 ; Farnsworth v. Drake, 11 Ind. 101. 
 A declaration upon a Note to the treasurer of a parish and his successors, 
 and alleging the plaintiff to be the treasurer, sets forth a good cause of ac- 
 tion, and is not demurrable. Buck v. Merrick, 8 Allen, 1 23. 
 
 * Ibid. ; Champion v. Plummer, 4 Bos. & Pull. 262 ; Cooper v. Smith, 15 
 East, 103. 
 
CHAP. I.] KATUBE AND REQUISITES. 39 
 
 been paid to the other ;^ [It is the same, also, with a Note 
 payable to " the heirs, administrators, or assigns of A, de- 
 ceased," ^ or to the " estate of a person deceased," ^ or, in 
 case of a Note payable at a future time, and not on demand 
 " to the secretary for the time being of a certain society, or 
 order ";* but it is good if payable to the administrator of a 
 certain estate.^] 
 
 ' Bayley on Bills, eh. 1, § 10, pp. 34, 35 (5th edit.) ; Chitty on Bills, ch. 
 5, p. 177 (8th edit.) ; Id. ch. 12, p. 560, 561 ; Blanckenhagen v. Blundell, 
 2 B. & Al. 417 ; Osgood v. Pearsons, 4 Gray, 455 ; Musselman v. Oakes, 19 
 m. 81. But a Note to the " Trustees of the W. Chapel, or their treasurer, 
 for the time being," is a good Note to the trustees alone as the payees, and 
 the treasurer is their agent only to receive payment. Holmes v. Jaques, 
 Law Rep. 1 Q. B. 376. 
 
 ' Bennington v. Dinsmore, 2 Gill, 348. 
 
 * Lyon V. Marshall, 11 Barb. 241. 
 
 ' [Storm V. Stirling, 28 Eng. Law & Eq. 108, affirmed in the Exchequer 
 Chamber, 36 Eng. Law & Eq. 165. ' Lord Campbell, C. J.: " The nature 
 and very definition which we find iu'the books of a Promissory Note show 
 that it must contain an express promise to pay to a person therein named 
 or designated, or to his order or to bearer. See Byles on Bills (5th ed.),'p. 
 4, Colehan v. Cooke, and 2 Black. Com. 467. If the person to whom or to 
 whose order it is to be paid is uncertain', and it depends on a contingency 
 to whom or to whose order payment is to be made, it is not a Promissory 
 Note, unless it can be treated as payable to bearer. It was argued, on be- 
 half of the plaintifi', that we might treat this as a Note made payable to the 
 plaintiff, who, at the date of the document, was the secretary of the society, 
 by his description as such secretary ; and it was said that the subsequent 
 part of the instrument, in which it is said that the plaintiff deposits in his 
 hands, and that he authorizes the said secretary for the time being forth- 
 with to sell, points to the then secretary as the person to whom alone the 
 promise is made, and to whom the Note is payable. 
 
 " There is no doubt upon the authorities, that it is quite sufficient to make 
 a Note by a description or designatio personce of this kind ; but we do not 
 think that we can put the above construction on the document now before 
 us. The use of the words ' for the time being,' in the first instance ; the 
 repetition of them afterwards, and the whole form and scope of the instru- 
 ment, satisfy us that the payment was to be made to the individual who, at 
 the time of the instrument falling due, should fill the situation of secretary 
 
 ' Moody V. Threlkeld, 13 Geo. 55 ; Little w. Thomas, 30 Miss. 122. A 
 Note payable to J. G. M., Treas. of the R. L & A. R. Co., is the Note of the 
 individual named, but not of the company. Chadrey v. McCreery, 27 111. 
 253. 
 
40 PEOMISSOEY NOTES. [CHAP.I. 
 
 § 34. In the next place, as to the person or persons by 
 whom the Promissory Note is payable. It seems indispensa- 
 
 of the company, and not to the, plaintiff, unless he happened to be secretary 
 at that time. It was, we think, clearly intended as a floating promise, the 
 performance of which was to be made to the person being secretary when 
 the document became due. The other construction would, in effect, be to 
 hold that the words 'the secretary for the time being ' meant the now sec- 
 retary ; but we think that the words were used for the very purpose of ex- 
 cluding that construction. The case of The King v. Box, which was relied 
 on by the plaintiff, is clearly distinguishable from the present. There, the 
 Note was payable on demand to A B and C D, by name, ' stewardesses' of 
 a provident society, ' or their successors in office.' There, the parties to 
 whom the Note was given were designated by name ; and the description of 
 them as stewardesses, which it was said they were not legally, being mere mat- 
 ter of description, did not alter the promise to pay them on demand ; and 
 the judges said that, although they could have no legal successors as stew- 
 ardesses, still, their executors or administrators might sue. In the present 
 case, as we read the document, the money was never to become payable to 
 the plaintiff, and he was never to have any right upon the instrument un- 
 less he happened to fill the situation of secretary to the society at the end 
 of the nine months. In The King v. Box, the Note, as construed by the 
 Court, gave an immediate right of action to the payees named, on which 
 they might have immediately sued ; and the court seems to have thought 
 that the mention of the successors, who could have no legal existence, might 
 be rejected so that it did not destroy the immediate legal right expressly 
 given to the plaintiffs on demand. Here there is no right given to the plain- 
 tiff, except by the words promising to pay ' the secretary for the time be- 
 ing.' It was not- suggested in that case that the Note would be good if it 
 amounted to such a floating contingent promise as we think that the words 
 are intended to import in the case before us. It was suggested, also, in the 
 argument, that, if there were no payee who could sue, the Note might be 
 treated as payable to bearer ; but we think that, in so holding, we should 
 give a meaning to the Note contrary to the clearly expressed intention of 
 the maker. This is not a case of fraud or of a fictitious payee ; but the de- 
 fect is, that it is a promise to pay some person to be ascertained ex post 
 facto ; and we know no authority to show that, under such circumstances, 
 we can hold this instrument to be a Note payable to bearer, because, though 
 valid perhaps as an agreement, it cannot be enforced as a Promissory Note. 
 The promise is to pay to, or to the order of, an uncertain pei'son ; but, if 
 founded on good consideration, it may probably give rights, legal or equi- 
 table, to the society; but we think that we should be making a new instru- 
 ment if we were to hold it a Promissory Note payable to bearer. And the 
 case does not fall within any of the decisions cited on this branch of the 
 
CHAP. I.] NATUEE AND REQUISITES. 41 
 
 ble that the maker's name should be signed to a Promissory 
 Note, in order at once to ascertain the identity of the person 
 who signs it, and also to secure public confidence in its nego- 
 tiability and circulation.^ It should also state in unambigu- 
 ous terms who is the maker or person liable to pay it ; and, 
 if it be in the alternative, and is signed, that it is to be paid 
 by " A B, or else C D," it is void as a Promissory Note.^ 
 But, provided the name of the maker who is to pay it be 
 clearly seen as such, on the face of the instrument, it does 
 not seem to be of any importance, either in our law or in 
 the foreign law, whether it is found at the bottom or at the 
 top, or on the margin thereof.^ It may also be written in 
 ink or in pencil.* The signature may be by tlie maker him- 
 self, or by any one authorized by him, and signing for him in 
 his name.^ Whether a signature by the initials of the mak- 
 er's name will be a sufficient subscription, does not seem 
 to have been directly decided by our law ; ^ but its sufficien- 
 cy is completely established in the law of Scotland.'^ The 
 subscription, also, by the maker, by his mark, if he cannot 
 write, will be good, if it is established by proper attestation 
 or proof.^ 
 
 argument. As we think, therefore, that this is not a Promissory Note, our 
 judgment is for the defendant." And this judgment was affirmed ia the ' 
 Exchequer Chamber. 36 Eng. Law & Eq. 165.] 
 
 ' Bayley on Bills, ch. 1, § 11, p. 37 (5th edit.). 
 
 ' Ferris v. Bond, 4 B. & A. 679 ; Chitty on Bills, ch. 6, pp. 160, 177 (8th 
 edit.) ; Bayley on Bills, ch. 1, § 6, p. 17 (5th edit.) ; Id. § 11, p. 3D. 
 
 ' Bayley on Bills, ch. 1, § 11, pp. 37, 38 (5th edit.) ; Chitty on Bills, ch. 
 5, pp. 185, 186 (8th edit.) ; Story on Bills, § 53 ; Heinece. de Camb. cap. 
 
 4, § 17 ; Pardessus, Droit Comm. Tom. 2, art. 330 ; 3 Kent, Lect. 44, p. 78 
 (5th edit.) ; Taylor v. Dobbins, 1 Str. 399 j^Elliot v. Cooper, 2 Ld. Eaym. 
 1376. 
 
 * Chitty on Bills, ch. 5, pp. 146, 185 (8th edit.) ; Story on Bills, § 53 ; 
 Thomson on Bills, p. 8 (2d edit.) ; Geary v. Thysic, 5 B. & C. 234. 
 
 " Bayley on Bills, ch.l, § 11, pp. 37, 38 (5th edit.) ; Chitty on Bills, ch. 
 
 5, pp. 185, 186 (8th edit.) ; Story on Bills, § 53. 
 
 ' But see Merchants' Bank v. Spicer, 6 Wend. 443. 
 ' Thomson on Bills, ch. 1, § 2, p. 46 (2d edit.). 
 
 » Thomson on Bills, ch. 1, § 2, pp. 46, 48 - 51 (2d edit.) ; Chitty on Bills, 
 Pt. 2, ch. 5, p. 621 (8th edit.). 
 
42 PROMISSORY NOTES. [CHAP. I. 
 
 § 35. In the next place, it is equally essential that the 
 person to whom the Note is payable should be clearly ex- 
 pressed, and made known upon the face of the Note ; ^ for 
 parol evidence is not admissible to show to whom it is paya- 
 ble ; and in instruments designed for circulation, it is of the 
 highest importance to know to whom its obligations apply, 
 and from whom a title can be securely derived. The same 
 rule pervades the whole foreign law. In the French Code 
 of Commerce, it is enumerated as one of the essential rfequi- 
 sites of a Promissory Note, that it should contain the name 
 of the payee, to whose order it is payable.^ And this is but 
 an affirmance of the antecedent law.^ Heineccius lays 
 down the doctrine in strong terms : " Nee praetermitteu- 
 dum Bxactoris prsenomen et nomen ; vel ideo quippe neces- 
 sarium, quod nemo ex litteris agere potest, cujusin illis nulla 
 fit mentio."* A similar rule prevails as to the name of -the 
 maker of the Note.^ Heineccius, speaking of the impor- 
 tance of the signature of the drawer to a bill, and that even 
 a seal will not supply the defect (and the same ground ap- 
 plies to the signature of the maker of a Promissory Note), 
 quotes with approbation the opinion of Sprengerus, and 
 says : " Et id quidem omnio verissimum est, (1) quia pericu- 
 'losa est contraria sententia, ob falsa, quae ita facile possent 
 committi, (2) quia ita non facile fieri posset cambialium lit- 
 terarum rccognitio. Idem dicendum videtur de casu, si 
 loco nominis subscripti crucis signum subjiciatur." ® 
 
 § 36. But here, again, the general rule of our law, as to 
 the person to whom a Note is payable, must be understood 
 with proper limitations and qualifications. It is not ncces- 
 
 ' See Entlioven v. Hoyle, 9 Eng. Law & Eq. 434 ; Yates v. Nash, 8 
 C. B. (N. S.) 581. 
 
 = Code de Comm. art. 188. 
 
 ' Pothier, De Change, n. 30, 31 ; Pardessus, Droit Comm. Tom. 2, art. 
 338 ; Jousse, Sur L'Ord. 1673, tit. 5, art. 1, p. 67. 
 
 ' Heineco. de Camb. cap. 4, § 11 ; Story on Bills, § 54. 
 
 ' Pothier, De Change, n. 30 ; Heinecc. de Camb. cap. 4, § 17. 
 
 • Heiuecc. de Camb. cap. 4, § 18. 
 
chap; I.] NATURE AND REQUISITES. 43 
 
 sary that the name of the payee should expressly be stated on 
 the face of the Note ; but it will be sufficient, if, from the 
 language used, the person can be certainly ascertained.^ 
 Thus, for example, a Note payable to the order of A is a 
 valid Promissory Note ; for, in contemplation of law, it is 
 payable to A or his order.^ So, a Note payable to A or bear- 
 er, or payable to bearer, is a valid Promissory Note ; for, in 
 contemplation of law, it is solely payable to the person who 
 is, or may become, the bearer ; and " Id certum est, quod 
 certum reddi potest." ^ So, a Note thus expressed : " Re- 
 ceived of B, £50, which I promise to pay on demand," is a 
 good Promissory Note ; for the promise will be interpreted to 
 be a promise to pay B.* Pothier gives a similar interpreta- 
 tion to the like language ; ^ but Pardessus considers that, 
 under the present commercial code of France, the interpre- 
 tation would not hold good, but the Note would be fatally 
 defective.^ Upon the oth6r point, where a Note is made pay- 
 able to the order of A, the French law partly agrees and 
 partly differs from our own. A Note payable to the order of 
 A, is valid and negotiable, as a Promissory Note, as soon as 
 it is made payable to any person in particular ; and he may 
 maintain a suit upon it, as holder, in the same manner as 
 if it were originally made payable to him.T But it is not 
 , deemod, as in our law, payable to A, but only to his order. 
 
 ' Chitty on Bills, ch. 5, pp. 155, 160 (8th edit.) ; Bayley on Bills, ch. 1, 
 § 10, pp. 32 - 35 (5th edit.) ; Story on Bills, § 54 ; Kex v. Kandall, Kuss. & 
 Eyan, Cr. Cas. 195. 
 
 ' Chitty on Bills, ch. 11, p. 582 (8th edit.) ; Bayley on Bills, ch. 9, pp. 
 388, 389 (5th edit.) ; Frederick v. Cotton, 2 Show. 8 ; Fisher v. Pomfrett, 
 Carth. 403 ; 12 Mod. 125 ; Anon. Comb. 401 ; Smith v. M'Clure, 5 East, 476. 
 
 ' Bayley on Bills, ch. 1, § 10, pp. 30, 31 (5th edit.) ; Chitty on Bills, ch. 
 5, p. 178 (8th edit.); ch. 11, p. 582; Grant i'. Vaughan, 3 Burr. 1516; 
 Minet v. Gibson, 3 T. 481 ; S. C. 1 H. Black. 569. 
 
 • Green v. Davies, 4 B. & C. 235. 
 
 ' Pothier, De Change, n. 31 ; Story on Bills, § 54. 
 
 • Pardessus, Droit Conim. Tom. 2, art. 338. 
 
 ' Story on Bills, § 56 ; Loere Esprit du Code de Comm. Tom. 1, Liv. 3, 
 tit. 8, p. 242 ; Pardessus, Droit Comm. Tom. 2, art. 339 ; Heinecc. de 
 Camb. cap. 2, § 8. 
 
44 PKOMISSOBY NOTES. [CHAP, I. 
 
 And Heineccius puts precisely the same interpretation upon 
 the words, and holds the same doctrine. 
 
 [§ 36 a. We have already seen that a Note payable to the 
 order of the maker, and by him indorsed and put in circula- 
 tion, is treated as a Note to the bearer.^ This principle has 
 received a new illustration in a recent case in New Hamp- 
 shire. It was there decided, that though a Note, signed by 
 several persons, and payable to one of their number, cannot 
 be enforced at law in the name of the payee, as a joint prom- 
 ise against all the makers, yet, where such Note' is indorsed 
 by the individual payee, who was one of the makers, it im- 
 mediately becomes operative as a valid contract, from the 
 date of the transfer, and may be enforced by a joint action 
 against all the makers, in the name of the indorsee.^] 
 
 § 37. A Note, issued with a blank for the payee's name, 
 may be filled by any bona fide holder with his own name as 
 payee, and then it will be treated as a good Promissory Note 
 to him from its date.^ Indeed, the law proceeds much fur- 
 ther; for if a blank paper, intended to be a Promissory 
 Note, is signed by the maker, [or if a person indorses his 
 name upon it,*] it may afterwards be filled up by any au- 
 thorized person, according to the intent fob which it is 
 signed, [or indorsed,] and, in the possession of a bona fide 
 holder, it will be held valid.^ , 
 
 > See ante, § 16 ; Hall v. Burton, 29 HI. 321. 
 
 ' Heywood v. Wingate, 14 N. H. 73. And see Murdock v. Carutheis, 
 21 Ala. 785 ; Kambo v. Metz, 5 Strobh. 108 ; Absolon v. Marks, 11 Queen's 
 Bencb, 19. 
 
 ' Bayley on Bills, ch. 1,' § 10, pp. 36, 37 (otli edit.) ; Chitty on Bills, eh. 
 5, pp. 160, 177,178 (8th edit.) ; Cruehley v. Clarance, 2 Maule & Selw. 
 90 ; CrutcUy v. Mann, 5 Taunt. 529 ; Attwood v. Griffin, 1 Ryan & 
 Mood. 425 ; Story on Bills, § 54. See Rex v. Richards, 1 Russ. & Ryan, 
 Cr. Cas. 193. Greenhow v. Boyle, 7 Blackf. 56. 
 
 ' Ferguson v. Childress, 9 Humph. Tenn. 382. 
 
 ' Bayley on Bills, eh. 1, § 11, p. 39 (5th edit.) ; Chitty on Bills, eh. 2, 
 p. 33 (8th edit.) ; Id. ch. 5, pp. 186, 215 ; Story on Bills, § 53 ; 3 Kent, 
 Lect. 44, p. 77 (5th edit.) ; Johnson v. Blasdale, 1 S. & M. 17 ; Hemphill ». 
 Bank of Ala. 6 Ibid. 44 ; Wilson v. Henderson, Ibid. 375. But the Note is 
 inyalid until the blanks are filled. Seay v. Bank of Tennessee, 3 Sneed. 558. 
 
CHAP. I.] NATURE AND REQUISITES. 45 
 
 [§ 37 a. And where a blank space has been left in a Note, 
 which renders it imperfect, the holder may, it seems, in some 
 special cases, fill the blank.^ But, if a Note is perfect when 
 delivered, no alteration can be made therein but by consent 
 of the parties ; nor will the law imply an authority to the 
 holder to make an addition thereto which will render it 
 negotiable. Accordingly, the insertion of the words " or his 
 order " in a Note, after the execution and delivery thereof 
 to the payee, without the maker's knowledge and consent, 
 although in a blank place, has been held to be a material 
 alteration, rendering such Note invalid' in the hands of an 
 innocent holder.^] 
 
 § 38. The law of France upon this subject is somewhat 
 different. Originally, Bills of Exchange drawn with a blank, 
 for the name of the payee might be filled up (as in our law) 
 in the name of any bona fide holder, and thereby the other 
 .parties to the Bill would be bound to him in the same man- 
 ner as if his name had been originally inserted therein.^ But 
 this having been found to be a cover for fraud and usury, the 
 practice was afterwards disallowed.* Soon afterwards. Bills, 
 payable to the bearer, came into use ; but being found pro- 
 ductive of the like ill consequences, they also were declared 
 illegal.^ Their validity seems afterwards to have been re- 
 established ; ^ but, according to Pardessus, by the present law 
 of Prance, a Bill, payable to the bearer, is not valid.^ If a 
 Bill of Exchange contains any fiction or falsity in the names, 
 
 ' CruoMey v. Clarance, 2 Maule & S. 90 ; Crutchly v. Mann, 5 Taunt. 
 629 ; Attwood v. Griffin, 2 C. & P. 3C8 ; Boyd v. Brotherson, 10 Wend. 93 ; 
 Mitchell V. Culver, 7 Cowen, 336. Greenhow u. Boyle, 7 Blackf. 56. 
 
 "^ Bruce V. Westcott, 3 Barb. 374 ; Clute v. Small, 17 Wend. 242 ; Ker- 
 shaw V. Cox, 3 Esp. 246 ; Bathe v. Taylor, 15 East, 412 ; Edie v. East In- 
 dia Co., 2 Burr. 1216. 
 
 ' Pothier, De Change, n. 223. 
 
 ' Ibid. ; Savary, Parfait Negociant, Tom. 1, Pt. 1, Liv. 3, ch. 7, p. 201. 
 
 ' Ibid. ; Dupuy de la Serra, ch. 19, pp. 196, 197. 
 
 " Pothier, De Change, n. 223 ; Dupuy de la Serra, ch. 19, pp. 19G, 197. 
 
 ' Pardessus, Droit Comm. Tom. 2, art. 338 ; fosl, §173; Story on Bills, 
 §58. 
 
46 PEOMISSOEY NOTES. [CHAP. I. 
 
 or quality, or domicile, or plaoe, where it is drawn, or where 
 it is payable, it loses its distinctive character as a Bill, and 
 becomes only a simple promise.^ Upon a somewhat similar 
 policy. Promissory Notes, with a blank for the name of the 
 payee, were formerly held valid, and were in use in 
 France ; but they are now prohibited, and have fallen into 
 disuse.^ 
 
 § 39. It has sometimes happened that Notes import to be 
 payable to a fictitious person, or to a person not in esse, or to 
 his order, and are issued with an indorsement in blank, pur- 
 porting to be made by such person thereon. Under such 
 circumstances, as against the real maker of the Note, who 
 assumes the character of the indorser in the transaction, the 
 Note will, in the hands of a bona fide holder, be held payable 
 to bearer, and have the same legal operation as if it was 
 originally made payable to bearer .^ [So, also, if put in circur 
 lation by the maker, with the indorsement of the payee 
 forged upon it.*] We have just seen that, in respect to Bills 
 of Exchange, a different rule prevails in France under the 
 present Code of Commerce ; ^ and the like rule is applicable 
 to Promissory Notes. But, if a Note is made payable to a 
 fictitious person or order, it seems that, as between the 
 original parties who put the instrument into circulation with 
 a knowledge of the fiction,, it might be held void as an inop- 
 erative instrument.^ 
 
 ' Code de Cojnm. art. 112. See also Chltty on Bills, ch. 5, p. 178 (8th 
 edit.). 
 
 « Savary, Parfait Negociant, Tom. 1, Pt. 1, L!t. 3, eh. 7, p. 199. 
 
 ' Bayley on Bills, ch. 1, § 10, pp. 31, 32 (5th edit.) and note ; Chitty on 
 BUls, ch. 5, pp. 179, 180 (5th edit.) ; Stevens v. Strang, 2 Sandford, 138 ; 
 Stone V. Freeland, cited 1 H. Black. 316, note ; Minet v. Gibson, 3 T. 481 ; 
 S. C. 1 H. Black. 569 ; CoUis v. Emett, 1 H. Black. 313 ; Cooper v. Meyer, 
 lOB. &C. 469; Bennett v. Farnell, 1 Camp. 130, contra. But see Id. 
 Addenda, 180 6, § 9 ; Stevens v. Strang, 2 Sandford, 138 ; Farnsworth v. 
 Drake, 11 Ind. 101. 
 
 ' Coggill V. American Exchange Bank, 1 Comstock, 113. 
 
 = Ante, § 37 ; Code de Conim. art. 112. 
 
 " See Bennett v. Farnell, 1 Camp. 130 ; Hunter v. Jeffery, Peake, Ad- 
 dit. Cas. 146. See Chenot v. Lefevre, 3 Gilman, 111. 637. 
 
CHAP. I.] NATURE AND REQUISITES. 47 
 
 § 40. These are the essential qualities required in Promisr 
 sory Notes, by the law of England and America. There are 
 others, again, which are indispensable under particular cir- 
 cumstances, and others, again, which are usual and common, 
 although not indispensable, but which yet will require some 
 notice in the present connection. In certain cases, by stat- 
 ute, no Note is valid as a Promissory Note, unless it is made 
 in strict compliance with the statute regulations. Thus, for 
 example, in England Promissory Notes are, in general, re- 
 quired by statute to be on stamped paper.^ So, certain de- 
 scriptions of Promissory Notes are required to be attested, 
 otherwise they are void.^ Others, again, for certain purposes, 
 require the words " value received " to be inserted therein, 
 in order to give a title to interest and damages ; ^ and others, 
 again, formerly required, under a penalty, the words " value 
 received " to be inserted on their face, such as Notes given 
 for the payment of coals, which on their face were required 
 to purport to be given " for value received in coals." * But 
 upon these it is unnecessary to dwell, as they exclusively be- 
 long to positive legislation, and vary, as well in the same 
 country as in different countries. 
 
 § 41. A far more important, and, in a practical sense, the 
 most distinguishing characteristic of Promissory Notes, is 
 their negotiability. It is this quality which gives a ready 
 circulation and currency to them among the community at 
 large, and enables them to perform, in a vast, variety of cases, 
 the functions of money .^ Nevertheless, this is not, by our 
 law, an indispensable quality, although it is so general an at- 
 tendant that it is difiicult to separate in our minds the notion 
 of a Promissory Note from that of negotiability. A Note, 
 not negotiable, enjoys, by our law, all the privileges of a 
 Note which is negotiable, so far as the maker and payee are 
 
 ' Bayley on Bills, ch. 3, §§ 1 - 14, pp. 77 - 103 (5th edit). 
 ' Bayley on Bills, ch. 1, § 12, p. 40 (dth edit.). 
 » Chitty on Bills, ch. 5, p. 183 (8th edit.). 
 
 • Bayley on Bills, ch. 1, § 13, p. 40 (8th edit.) ; Chitty on Bills, ch. 5, 
 p. 182 (8th edit). 
 »^n<e, §§1-3. 
 
4,8 PROMISSORY NOTES. [CHAP. I. 
 
 concerned ; ^ [except, perhaps, in some States, wliere non- 
 negotiable Notes, not expressed to be for value received, re- 
 quire proof of consideration to make them binding.^] It is 
 only when a transfer of such a Note is accomplished, that the 
 distinction between an assignment at law and an assignment 
 in equity is felt and understood.^ Hence it was formerly 
 thought, that, unless a Promissory Note was negotiable, it 
 was but the assignment of a chose in action, which was gen- 
 erally incapable of being transferred at the common law, 
 although held assignable in equity, and therefore was a mere 
 evidence of a contract.* But the validity of such a Note, as 
 a Promissory Note, is now fully established.^ Indeed, the 
 rule nevjer did apply to Promissory Notes or Bills of Ex- 
 change, assigned to the King or Government by the payee, 
 although not originally payable to bearer or to order ; for 
 these, like all other choses in action, always were assignable 
 to the King or Government upon principles of public policy, 
 so as, upon the assignment thereof, to be suable in the 
 nanie of the King or Government.® And Bills of Exchange 
 and Promissory Notes, originally made payable to the King 
 or Government, are, upon the like policy, held assignable to 
 third persons, without any words of negotiability in the in- 
 strument.'' 
 
 § 42. The French law, as has been already suggested,^ in 
 
 • Bayley on Bills, ch. 1, § 10, p. 33 (Sth edit.) ; Chitty on Bills, ch. 5, 
 pp. 181, 218 (8th edit.) ; ante, § 1, 2 ; Story on Bills, § 60. 
 
 2 Bristol !,'. Warner, 19 Conn. 7. 
 ' Story on Bills, §§ 60, 199. 
 
 * Chitty on Bills, (.'h. 5, p. 181 (8th edit.) ; Dawkes v. Ld. De Lorane, 3 
 Wilson, 207, 213 ; Story on Bills, § 60. 
 
 ' Ibid. ; Smith y. Kendall, 6 Term, 124 ; ante, §§ 1 - 3 ; Story on Bills, 
 § 60 ; The King v. Box, 6 Taunt. 328 ; Bishop of Derry v. Chambers, Hud- 
 son & Brooke, 433 ; U. States v. Buford, 3 Peters, 12, 30 ; Bates v. Butler, 
 46 Maine, 387. See ^osf,| 128. 
 
 ' Story on Bills, §§ 60, 199 ; U. States v. White, 2 Hill, N. Y. 59. 
 
 ' Ibid. ; Lambert v. Taylor, 4 B. & 0. 138 ; Chitty on Bills, ch. 6, pp. 
 219, 2.52 (8lh edit.) ; U. States v. Buford, 3 Peters, 30 ; U. States v. White, 
 2 Hill, N. Y. 69. 
 
 " Ante, § 2. 
 
CHAP. I.] NATURE AND REQUISITES. 49 
 
 respect to non-negotiable Bills and Notes, differs essentially 
 from ours ; for the privileges annexed by that law to Prom- 
 issory Notes are limited to those which are negotiable, viz. 
 those which are payable to the payee or his order, or to his 
 order generally, or that some other equivalent words should 
 be used.^ The law of the Neapolitan dominions is to the 
 
 ' Story on Bills, § G2 ; Pardessiis, Droit Coram. Tom. 2, art. 339 ; Po- 
 thier, De Change, n. 21G-219; Jousse, Sur L'Ord. 1673, tit. 5, art. 31, 
 ip. 126; Dupuy de la Serra, De Change, ch. 19, §§ 1, 2, pp. 191, 192; 
 Nouguier, De Change, Tom. 1, Liv. 4, § 1, n. 7, p. 498 ; Chitty on Bills, 
 ch. 5, p. 181 (8th edit.) ; Id. ch. 6, pp. 218, 219. Mr. Nouguier thinks 
 that he has ascertained the precise time when the words " or order " were 
 added in France, in Bills of Exchange. He says : " Estienne Cleirac, 
 lequel, comme on sait, ecrivait en 1569, est le premier auteur qui parle de 
 I'ordre, comme moyen de transferer la propriety d'une lettre de change, 
 Dans son ch. 6, n. 4, page 62, il donne un modele de lettere contenant 
 I'ordre; puis, au meme chapitre, n. 12, page 66, il explique la valeur de 
 cette expression. Plus tard, Savary, Parere 82, t. 2, page 602, pretend 
 que I'usage de cette clause a pris naissance en 1620; tandisque Mareschal, 
 dan son ouvrage sur les changes et rechanges, publie en 1625, ne dit rien 
 qui confirme cette opinion. Son silence ne la detruit pas, car son traiti? 
 succinct est principalement destine Ji rechercher la nature des diverses 
 especes de changes, et la constitution faite par Cleirac trentequatre ans 
 apres, scmble lui donner une certaine force. J'ai m6me retrouve, dans 
 L'Inslruciion sur les Lettres de Change, ch. 1, p. 4, un renseignement pr^- 
 cieux, qui determinerait I'epoque precise de I'invention de I'ordre. Suivant 
 I'auteur de cette instruction, avant le ministere du Cardinal de Richelieu 
 on ne se servait pas du mot ordre ; mais I'embarras des procurations qu'il 
 fallait passer, donna lieu h ce terme, pour faciliter le commerce des Lettres 
 de Change, dont ce ministre faisait un tres-grand usage. Or, on sait que le 
 ministere du cardinal a dure de 1624 h 1642, epoque de sa raort. Co serait 
 done vers cette epoque et pendant cet espace de dix-buit ans, que I'ordre, 
 invenle, en 1620, aurait pris son developpement. Quoiqu'il en soit, le 
 commerce accueillit cette innovation avec une faveur marquee : il comprit 
 h. mcrveille conibien ses rcssources s'augmentaient par la facilite de regler 
 ses operations immediatement, sans frais, et d'assurer nn rapide paiement. 
 Aussi le transport des lettres par un simple ordre devint d'un usage presque 
 general, Cependant, vers la fin du dix-septiemp siecle, et apres, I'ordon- 
 nance de 1G73, quelques places de commerce, tenant par tradition A leurs 
 anciennes formalites, ne purent se resoudre h autoriser les transports par 
 endossement, et Dupuy de la Serra (ch. 13, n. 12, pp. 467 et 468 ; Id. ch. 
 13, § 12, p. 92, edit. 1789), cite quelques pays oil il y avait ddfense d'agir 
 4 
 
50 PKOMISSOEY NOTES. [CHAP. L 
 
 same effect.^ It is highly probable that the same rule pre- 
 vails generally upon the continent of Europe, although thes 
 elementary writers do not seem directly to discuss the 
 point.2 In Scotland, a Bill of Exchange or Promissory 
 Note is held to be indorsable and negotiable, although it 
 bears no words of assignability on its face.^ In this respect, 
 it differs both from our law and the foreign continental 
 law. 
 
 § 43. As to the mode of negotiation of Promissory Notes, 
 it depends in our law upon the form in which they are origi- 
 nally made. If they are payable to bearer generally, or to 
 A or bearer, the title thereto passes by mere delivery from 
 hand to hand, and, of course, possession of the same is prima 
 facie proof of title.* If they are payable to order, or to A or 
 order, then the title will pass by the indorsement of the payee 
 to the person named in the indorsement. If they are in- 
 dorsed in blank, theli the title passes by mere delivery to the 
 holder, in the same manner as if the indorsement were to the 
 bearer.^ 
 
 ainsi : 'Dans quelques villes particuliferes, dit-il, comme Venise, Florence, 
 Noyi, Bolzan, parides reglemens qui ont force de lois, il est d^fendu de 
 payer les Lettres de Change en vertu des ordres : mais il faut qu'elles 
 soient payables a droUure k ceux qui les doivent exiger, ou bien ceux h qui 
 elles sont payables envoient une procuration con9ue en certaine forme pre- 
 cise, sans quoi on ne saurait en exiger le paiement, ni faire un prot6t vala- 
 ble, parce qu'il ne serait pas fait par la faute du tireur ni de I'acceptant.' " 
 Nouguier, Des Lettres de Change, Tom. 1, pp. 273, 274. Doubtless they 
 were introduced into Promissory Notes about the same period. 
 
 ' Codice per lo Keguo delle due Sicilie, Del. Comm. tit. 7, cap. 1, § 109 ; 
 Id. cap. 2, § 187. 
 
 " See Heinecc. de Camb. cap. 2, §§ 1 -3 ; Baldasseroni (P.) Del Cambio, 
 Pt. 1, art. 2, and Comm. Code of Russia, 1833 ; 1 Louis. Law Journal, 
 1842, p. 64 ; Da Silva Lisboa Principes de Diritto Mercantil, Tom. 2, ch. 
 6, p. 17. 
 
 = 1 Bell, Comm. B. 3, ch. 2, § 4, p. 401 (5th edit.) ; Story on Bills, § 62. 
 
 * Story on Bills, § 60'; Chitty on Bills, ch. .5, p. 180 ; Id. ch. 6, p. 252 
 (8th edit.) ; Bayley on Bills, ch. 1, § 10, p. 31 (5th edit.). 
 
 ' Story on Bills, § 60 ; Chitty on Bills, ch. 6, pp. 252, 253 (8th edit.) ; 
 Bayley on Bills, ch. 1, § 10, p. 31 (5th edit.) ; Id. ch. 5, § 1, pp. 121, 123, 
 124. 
 
CHAP. I.] NATURE AND REQUISITES. 61 
 
 § 44. In order to make a Promissory Note negotiable, it is 
 not essential that it should in terms be payable to bearer or 
 to order. Any other equivalent expressions, clearly demon- 
 strating the intention to make it negotiable, will be of equal 
 force and validity.^ Thus, for example, a Promissory Note 
 payable to A or assigns is negotiable. The French law is 
 equally liberal in its exposition of this subject ; for, although 
 the Code of Commerce requires Promissory Notes to be pay- 
 able to a party or his order,^ yet it is held a sufiicient com- 
 pliance with the terms of the article, if other equivalent 
 words are used. Thus, for example, if the Note is made pay- 
 able to A, or at his disposal (ou d sa disposition'), that will 
 be sufficient to establish its negotiability.^ So, if it be 
 payable to A, or to the lawful bearer thereof, it will be 
 deemed equivalent to the words " or to his order." * But, 
 if tli# words are payable to A, or in his favor (om en sa 
 faveur), they will not be deemed to intend to make the Note 
 negotiable.^ 
 
 § 45. In the next place, as to the date. Promissory Notes 
 ordinarily state the date or time of making the same ; but it 
 is not, in general, essential that they should be dated, unless 
 positively required by some statute.^ Great practical diffi- 
 culties must, however, arise in many cases, from the omission 
 of the date, and therefore it rarely occurs, except from inad- 
 vertence or mistake. [But it is quite immaterial on what 
 part of the Note the date is written.^] Thus, if a Note be 
 
 ^ Chitty on Bills, ch. 5, p. 180 (8tli edit.) ; Id. ch. 6, p. 219 ; Bayley on 
 Bills, ch. 5, § 1, p. 120 (5th edit.) ; Story on Bills, § 60 ; 3 Kent, p. 77 (5th 
 edit.) ; Com. Dig. Merchant, F. 5 ; Tingling v. Kohlhass, 18 Md. 148. 
 
 ' Code de Comm. art. 188. 
 
 ' Pardessus, Droit Comm. Tom. 2, art. 339. 
 
 ♦ Ibid. 
 ■ ' Ibid. I 
 
 ' Bayley on Bills, ch. 6, § 7, p. 25 (5th edit.) ;' Chitty on Bills, ch. 5, p. 
 169 (8th edit.) ; Pasmoro v. North, 13 East, 517, 521 ; M. & F. Bank v. 
 Schuyler, 7 Cowen, 337, n. (a) ; Dean v. DeLezardi, 24 Miss. 424. 
 
 ' Sheppard v. Graves, 14 How. (U. S.) 505 ; Hall v. Harris, 16 Ind. 180. 
 
52 , PROMISSORY NOTES. [CHAP. I. 
 
 payable in a certain number of days after the date, it is plain 
 that the omission must create great embarrassment and diffi- 
 culty in ascertaining when the Note was actually made and 
 delivered to the payee. In such a case, the time will be 
 computed from the day when it was issued or made,^ or, if 
 that cannot be exactly ascertained, from the day when its 
 existence can first be established.^ Where a Note is payable 
 at sights or at a certain number of days after sight, the same 
 difficulty is not felt ; for the time begins to run, not from the 
 data, but from the time of the presentment thereof, and there- 
 fore is easily ascertainable.^ 
 
 § 46. By the old French law, the date does not seem to 
 have been positively required to be placed on the Note ; * but 
 the modern Code of Commerce expressly requires the Note 
 to be dated.^ And by the date we are to understand the day, 
 the month, and the year.® A compliance with this requisite 
 seems indispensable, under the modern Code, to give it 
 
 ' De la Courtier u. Bellamy, 2 Shower, 422 ; Hague v. French, 3 Bos. 
 & Pul. 173 ; Giles v. Bourne, 6 M. & Selw. 73 ; Chitty on Bills, ch. 5, p. 
 169 (8th edit.) ; Id. Pt. 2, ch. 2, p. 581 ; Bayley on Bills, ch. 7, § 1, p. 248; 
 Id. ch. 9, p. 379 (5th edit.) ; Woodford v. Dorwin, 3 Verm. 82 ; Chamber- 
 lain V. Hopps, 8 Verm. 94. 
 
 * See Armitt v. Breame, 2 Ld. Raym. 1076, 1082 ; Bac. Abridg. Leases 
 and Terms for Years, L. 1 ; Com. Dig. Fait. B. 3 ; Styles v. Wardle, 4 B. 
 & C. 908, 911 ; Chitty on Bills, Pt. 2, ch. 2, p. 531 (8th edit.) ; Bayley on 
 Bills, ch. 7, § 1, p. 248 (5th edit.) ; Id. ch. 9, p. 379 ; Beawes, Lex. Mercat. 
 § 190, p. 439 ; Thomson on Bills, pp. 61, 62 (2d edit.). 
 
 = Chitty on Bills, ch. 9, p. 406 (8th edit.) ; Thomson on Bills, pp. 61, 62 
 (2d edit.) ; Bayley on Bills, ch. 7, § 1, pp. 244, 245, 248; Pothier, De 
 Change, n. 13 ; Story on Bills, § 37. 
 
 * Pothier says (speaking of the old law, before the modern Code of Com- 
 merce), the want of a date, or an error in the date of the Bill, cannot be 
 objected on the.part of the drawer or acceptor, any more than the omission 
 of the place where it was drawn. Pothier, De Change, n. 36. 
 
 » Code de Comm. art. 110, 188; Pardessus, Droit Comm. Tom. 1, art. 
 331,333, 457, 458; Delvincourt, Inst. Droit Comm. tit. 7, ch. 1, p. 75,' 
 Merlin, Bepert, Letire et Billet de Change, § 1, n. 2, pp. 161, 162 (edit. 
 1827) ; Jousse, Sur L'Ord. 1673, tit. 6, pp. 58, 67 ; Locre, Esprit de Comm.. 
 Liv. 1, tit. 8, § 1, p. 332 (edit. 1829) ; Pothier, De Change, n. 36. 
 
 ' Ibid, 
 
CHAP. I.] KATUEE AND REQUISITES. 53 
 
 the character of a Promissory Note, although it will not 
 otherwise deprive it of being, as between the original par- 
 ties, considered as a valid simple contract or promise.^ 
 The law of Naples is in precise coincidence with that of 
 France.^ 
 
 § 47. Heineccius also holds that the date is indispensable. 
 His language is, and it certainly has no small force in a prac- 
 tical view of the subject : " Sequitur diei, mensis, et anni 
 mentio, quse necessaria omuino videtur ; (1.) quia plerseque 
 leges cambiales tempus exprimi jubent, veluti Prussicse, 
 Brunsuicenses, et Austriacse ; (2.) quia ssape dies solutionis 
 a die scriptarum litterarum computandus est, ab eoque 
 currere incipit, e. gr. Tier Wochen a dato beliebe der Herr 
 zu bezahlen ; (3.) quia de praescriptione debiti cambialis 
 judicari non potest sine die et consule. In aliis scripturis 
 omissum diem et consulem regulariter non vitiare contrac- 
 tum, notum est." ^ 
 
 . § 48. In respect to the date of Promissory Notes two 
 classes of cases may arise, which may involve questions of a 
 very different nature from those which we have been con- 
 sidering. They may be, first, ante-dated ; and secondly, 
 post-dated. In both cases the Notes will be valid in point 
 of law, unless some statute exists to the contrary ; * and, 
 where the purposes of justice require it, the real date may be 
 inquired into, and effect given to the instrument.^ TIius, if 
 a Promissory Note should bear date before the maker came 
 of age, and yet, in point of fact, it was actually made and 
 
 ' Ibid. ; Pardessus, Droit Comm. Tom. 1, art. 331, 333, 464, 477, 478 ; 
 Chitty on Bills, 147, 148 (Sth edit. 1833). 
 
 ' Codice per lo Regno delle due Sicilie, Del. Comm. tit. 7, cap. 1, § 109 ; 
 Id. capl. 2, § 187. 
 
 ' Heinece. de Jur. Camb. cap. 4, § 4 (ed. 1 769). 
 
 * See Bayley on Bills, ch. 6, § 7, p. 25 (5th edit.) ; Id. ch. 3, § 7, pp. 
 87 - 97 ; Chitty on Bills, ch. 5, p. 169 (Sth edit.). See Powell v. Waters, 
 8 Cowen, 669 ; Gray v. Wood, 2 H. & J. 328 ; Eichter v. Selin, 8 S. & R. 
 425. 
 
 ' Ibid.; Aldridge ». Branch Bank, 17 Ala. 45; Drake v. Rogers, 32 
 Maine, 524. 
 
54 . PEOMISSOEY NOTES. [CHAP. I. 
 
 given after he came of age, that fact might be shown and 
 established as a good answer to a plea of infancy. So, if a 
 Note were given by a married woman after her marriage, but 
 it was ante-dated before the marriage, the husband might 
 successfully defend himself against the claim, founded upon 
 such antecedent date, by setting up the true date. [But 
 where the date of a Note becomes a material part of the con- 
 tract, as where it is payable so many days after date, it can- 
 not be changed by parol.^] On the other hand, if a Note 
 should be post-dated, it would still be valid in the hands of 
 the payee or any subsequent indorsee, although the maker 
 shou'ld die before the day of the date arrived ; for the instru- 
 ment would still be deemed to have a legal effect from the 
 time of its issue, and the date would be deemed to fix the 
 period from which the time for its payment might be calcu- , 
 lated or held fixed.^ The like rule will apply, where, in a 
 Promissory Note, a blank is left for the date, and the maker 
 dies before it is filled up, and afterwards it is filled up ; 
 for it will be valid, and furnish no ground of objection, 
 either to the original parties, or to the person who filled 
 it up.^ 
 
 [§ 48 a. In those States where labor and business on the 
 Lord's Day, except of necessity or charity, are prohibited by 
 statutes. Notes dated on that day are void, and cannot be 
 enforced.* But if a Note is dated on Sunday, it may be 
 
 ' Huston V. Young, 33 Maine, 85. 
 
 « Pasmore v. North, 13 East, 517, 521 ; Chitty on Bills, ch. 5, p. 169 
 (Sth edit.) ; Bayley on Bills, ch. 6, § 7, p. 25 (5th edit.) ; Id. ch. 6, § 3, pp. 
 168, 169 ; Brewster v. McCardel, 8 Wend. 478. 
 
 ' Bayley on Bills, ch. 1, § 7, pp. 25, 26 (5th edit.) ; Id. ch. 5, p. 168; 
 Chitty on Bills, ch. 6, p. 240 (8th edit.) ; Usher v. Dauncey, 4 Camp. 97 ; 
 Eussell V. LangstafTe, Doug. 514, Montague v. Perkins, 22 Eng. Law &Eq. 
 R. 516. 
 
 * Patteew. Greely, 13 Met. 284 ; Lyon v. Strong, 6 Ver. 219 ; Berril v. 
 Smith, 2 Miles (Penn.), 402 ; O'Donnell v. Sweeney, 5 Ala. 467; Dodson 
 V. Harris, 10 Ala. 566; Towle u. Larrabee, 26 Maine, 464; Adams v. 
 Hamell, 2 Doug. (Mich.) 73 ; Allen v. Deming, 14 N. H. 133 ; Bank v. 
 Mayberry, 48 Maine, 198 ; Bosley v. M'AUister, 13 Ind. 565. 
 
CHAP. I.] NATURE AND REQUISITES. 55 
 
 shown that it was not in fact made upon that day ; ^ or, if not 
 dated on Sunday, it may be shown to have been made on 
 Sunday, and therefore void,^ but such a Note is good in the 
 hands of a holder for value before maturity and without 
 notice.^ Or, if a Note dated and made on Sunday is not 
 delivered till a day subsequent, it is good, as it only takes 
 effect from its delivery ; * or, if subsequently ratified, it is 
 good, as where a horse was sold and a Note given, and 
 the maker kept the horse, and made payments on -the Note.^ 
 Or, when a Note made on Sunday is not signed or delivered 
 till after sunset, it is good, and the presumption is, in the 
 absence of proof, that a Note so dated was made after sunset.^ 
 But a Note made in a foreign State on Sunday is liot affected 
 by* the laws of the State in which the suit is brought, but the 
 law of the place where the contract was made is to ^overn.^] 
 § 49. In the next place, as to the place where a Promis- 
 sory Note is made or is payable. By our law it is not essen- 
 tial that any place of making or of payment should be 
 specified on the face of the Note, unless specially provided 
 for by statute.^ [And if not stated, the Note is payable every- 
 where.®] It is usual, indeed, in the date, to include the 
 place where the Note is made ; and this, in many cases, may 
 be very important, in order to ascertain the proper rules by 
 which it is to be interpreted ; for the interpretation will be, 
 
 ' Hill V. Dunham, 7 Gray, 543. 
 
 ' Bank v. Mayberry, 48 Maine, 198. 
 
 ' Ibid., 48 Maine, 198 ; State Bank v. Thompson, 42 N. H. 369. 
 
 * Hilton V. Houghton, 35 Maine, 143 ; Goss v. Whitney, 24 Ver. 187 ; 
 Lovejoy K. Whipple, 18 Ver. 379; Sherman v. Roberts, 1 Grant's Cas. 
 (Penn.) 261. 
 
 ' Clough V. Davis, 9 N. H. 500 ; Sumner v. Jones, 24 Ver. 317. But in 
 Maine it was held that a new promise did not make the note valid. Pope 
 V. Linn, 50 Maine, 8,3. 
 
 ' Hill V. Dunham, 7 Gray, 543 ; Nason v. Dinsmore, 34 Maine, 319. 
 
 ' Adams v. Gay, 19 Ver. 358. 
 
 ' Bayley on Bills, ch. 1, § 9, pp. 29, 30 (5th edit.) ; Thomson on Bills, 
 ch. 1, § 2, p. 69 (2d edit.) ; Chitty on Bills, ch. 5, pp. 172-174 (8th edit). 
 
 » Engler v. Ellis, 16 Ind. 475. 
 
56 PROMISSORY NOTES. [CHAP. I. 
 
 or may be, essentially governed by the law of the State where 
 it is made.^ But, in the absence of any place stated on the 
 face of the Note, resort may be had to parol evidence, to 
 establish the validity of the Note, as well as to impeach it. 
 But very different considerations will apply to the case of the 
 place of payment ; for, if the Note is intended to be paid at 
 any particular place, that place must be stated in the instru- 
 ment ; and parol evidence is not admissible to show, that, 
 although ilo place of payment is therein stated, yet the par- 
 ties agreed that it should be payable at a particular place ; ^ 
 [on the same principle that parol proof is not admissible to 
 show that a Note containing no time of payment was, by the 
 agreement of parties, not to be paid until a future time.] 
 It is not sufficient, to make a Note payable at a particular 
 place, that there should be a memorandum of the place 
 where it is payable at the foot or on the margin thereof, but 
 it should be in the body of the Note itself, and constitute a 
 part thereof.* 
 
 § 50. By the law of Prance, Bills of Exchange are required 
 to have the place, as well as the time, of the date inserted 
 therein.* The place of payment, also, is required to be 
 stated. But it does not appear that the place of the date is 
 positively required, in cases of Promissory Notes, or even the 
 place of payment, but the time of payment only.^ 
 
 ■' Story on the Conflict of Laws, §§ 242-244, 266, 270, 307 - 318 ; Story 
 onBills,§§ 129-159. 
 
 ' Greenleaf on Evid. § 275 (2d edit.) ; Pliillips & Ames on Evid. ch. 5, 
 p. 756 ; 2 Starkie on Evid. 548 (2d edit. 1833) ; Chitty on Bills, ch. 5, pp. 
 172, 173 (8th edit.). 
 
 ' Chitty on Bills, ch. 5, p. 174 (8th edit.) ; Bayley on Bills, ch. 1, § 9, 
 . pp. 29, 30 (5th edit.) ; Williams v. Waring, 10 B. & C. 2 ; Exon v. Russell, ' 
 4 M. & S. 505 ; Bayley on Bills, ch. 1, § 14, p. 41 (5th edit.) ; Masters v. 
 Baretto, 8 M., Gr. & S. 433 ; Pierce v. Whitney, 29 Maine, 188. But see 
 Hey wood v. Perrin, 10 Pick. 228. 
 
 * Code de Comm. art. 110; Pardessus, Droit Coram.' Tom. 2, art. 333, 
 464 ; Story on Bills, § 49. Heinecc. de Camb. cap. 4, §§ 2, 3, affirms the 
 same rule to exist in the general foreign law. 
 
 ' Code de Comm. art. 188 ; Pardessus, Droit Comm. Tom. 2, art. 498 ; 
 Codice delle due Sicilie, Del. Comm. tit. 7, cap. 1, § 109 ; Id. cap. 2, § 187. 
 
CHAP. I.] NATURE AND REQUISITES. 5T 
 
 § 51. In the next place, as to the expression of " value 
 received " being on a Promissory Note. This, by oxir law, is 
 clearly not essential, although it is commonly inserted, un- 
 less, indeed, it is positively required by some statute provision, 
 in respect to some particular classes of Notes. ^ Indeed, al- 
 though not essential, it has been thought that it may be im- 
 portant, in many cases, to insert the words " value received" 
 in a Promissory Note ; since the words, when inserted, im- 
 port that value has been received by the maker from the 
 payee, and hence they raise a positive presumption of a legal 
 consideration sufficient to sustain the promise; liable, it is 
 true, to-be rebutted, but which, until rebutted, will prevail in 
 favor of the payee and any subsequent holder.^ [And in 
 some American States, if a non-negotiable Promissory Note 
 does not contain tlie words " value received," it does not 
 import value, and the payee must prove a consideration ; ^ 
 altliough it is otherwise in negotiable Notes.*] But, perhaps, 
 this is an overstrained refinement, since the law implies, 
 from the nature of the instrument itself, and the relation of 
 the parties apparent upon it, that it is for value received by 
 the maker from the payee, and therefore it can make no dif- 
 ference whether the words be or be not inserted.^ So true is 
 this, that where the words are omitted, an action of debt will 
 lie upon a Promissory Note by the payee against the maker.^ 
 
 ' Ante, § 39 ; Bayley on Bills, ch. 1, § 13, p. 40 (5th edit.) ; Chitty on 
 Bills, ch. 5, p. 182, 183 (8th edit.) ; AVhite v. Ledwick, 4 Doug. 247 ; Town- 
 send V. Derby, 3 Met. 363 ; Hatch v. Trayes, 11 A. & El. 702 ; Jones v. 
 Jones, 6 M. & W. 84 ; Thomson on Bills, 86, 87, 91, 93, 100, 101 (2d edit.) ; 
 3 Kent, Lect. 44, p. 77 (5th edit.) ; Bishop of Derry v. Chambers, Hudson 
 & Brookes, Irish, 433 ; Leonard v. Walker, Brayton, Verm. 203. 
 
 " Chitty on Bills, ch. 5, pp. 182 - 184 (8th edit.) ; Holiday v. Atkinson, 5 
 B. & C. 503 ; Clayton v. Gosling, 5 B. & C. 360 ; Hill v. Todd, 29 111. 101 ; 
 Clauser v. Stone, lb. 114 ; Hoyt v. Jaffray, lb. 104. 
 
 ^ Edgerton v. Edgerton, 8 Conn. 6. 
 
 * Bristol V. Warner, 1 9 Conn. 7. 
 
 ' Hatch V. Trayes, 11 A. & El. 702. See Thomson on Bills, 93, 94 (2d 
 edit.). 
 
 • Ibid. 
 
68 PROMISSORY NOTES. [CHAP. I. 
 
 § 52. The French law in respect to the expression of value 
 upon tliG face of the Note is entirely different from ours. It 
 requires, not only that the value received should be expressed 
 on the face of the Note, but also, whether it is received in 
 money or merchandise, in account, or in any other manner.^ 
 This rule had .its origin, not in the present commercial code 
 of Prance, but it constituted a part of the policy of the 
 old law. The Ordinance of 1673 positively required it in 
 cases of Bills of Exchange, and the like rule was applied 
 to Promissory Notes ; ^ so that, without this expression of 
 value, they lost their distinctive character as Bills of Ex- 
 change and Promissory Notes, and sank into mere simple 
 contracts.^ 
 
 § 53. The like rule seems to prevail in some other nations, 
 upon the continent of Europe ; but it is not probably of uni- 
 versal adoption.* Heineccius, in treating of Bills of Ext 
 change (and he considers Promissory Notes as but a species 
 of Bills), enumerates the essential parts as being, the invoca- 
 tion (votuin), the place of making, the day, month, and year, 
 and, lastly, the sum to be paid, without any suggestion as to 
 the words "value received." ° He- afterwards, however, 
 speaks of the words being commonly inserted ; ^ and adds, 
 that, whether the omission will render a Bill of Exchange 
 invalid or not must depend upon the law of the particular 
 place where it is made. His language is : '^ Sitne valutse 
 mentio adeo necessaria, ut ejus omissio cambium vitiet, ex 
 legibus singulorum locorum cambialibus judicandum est. 
 
 ' Code de Comm. art. 188. 
 
 ' Jousse, Sur L'Ord. 1673, tit. 5, art. 1, pp. 67, 70 ; Id. art. 4, p. 82 ; Id. 
 art. 31, p. 126; Pothier, De Change, n. 34, 222; Pardessus, Droit Comm. 
 Tom. 2, art. 331, 340, 479 ; Story on Bills, § 64 ; Savary, Parfait Ne- 
 gociant, Tom. 1, Pt. 1, Liv. 3, eh. 4, p. 133 ; Id. ch. 7, p. 200. " 
 
 ' Ibid. ; Pothier, De Change, n. 34, 222. 
 
 * Codice delle due Sioilie, Del Comm. tit. 7, cap. 1, § 109 ; Id. cap. 2, 
 § 187. The Code of the Two Sicilies seems to be founded upon the French 
 Code of Commerce. 
 
 ' Heinecc. de Camb. cap. 4, § 2. 
 
 • Ibid., § 13. 
 
CHAP. I.] NATURE AND REQUISITES. 69 
 
 Earn omnino exijunt leges cambiales Prussica, Danica, Gal- 
 lica, Bruiisuicensis ; contra ea in Lipsiensi (§ 3), legimus: 
 Uud sollen dieselben (Wechsel Briefe) es mag dor empfah- 
 genen Valuta, wie zwar an ihm selbst billig ware, darrinnen 
 gedacht seyn, oder nicht, einen Weeg, wie den andern, kraf- 
 tig und giiltig seyn. De eo tamen inter omnes-constat, semel 
 acceptato cambio solutionem exigi posse, si vel maxime nulla 
 facta fuerit valutas mentio." ^. 
 
 § 54. In the next place, as to the attestation of Promis- 
 sory Notes. This is not required by our law in any case, 
 except where it is positively required by statute.^ It may 
 be convenient, in many cases, to have the attestation of a 
 witness to establish the genuineness of the signature, or the 
 consideration of the Note, or the validity of the transaction, 
 on account of which it was given. In cases where a Note is 
 signed by a marksman, or with the iri,itials of the maker 
 only, it may be very important to have the same attested by 
 a witness, in order to establish the genuineness of the mark 
 or initials, and the occasion of the execution of the instru- 
 ment. By the law of some of the American States, as, for 
 example, of Massachusetts,^ the statute of limitation does not 
 apply to any Promissory Notes signed in the presence of an 
 attesting witness, where the action thereon is brought, by the 
 payee, or by his executor or administrator. There is also 
 occasionally some inconvenience in having a Promissory Note 
 attested ; because, in such a case, the signature must be 
 proved by the attesting witness, and not otherwise, unless 
 the witness be abroad, or dead, or from some other circum- 
 stance he cannot be produced at the trial, and his absence 
 can be properly accounted for.* In either of these events, 
 by an anomaly in the jurisprudence of the Common Law, as 
 
 ' Heinecc. de Camb. cap. 4, § 14. 
 
 * Chitty on Bills, ch. 5, pp. 188, 189 (8th edit.) ; Bayley on Bills, ch. 1, 
 § 12, p. 40 (5tli edit.). 
 
 ' Revised Statutes of Massachusetts' (1835), ch. 120, § 4. 
 
 * Chitty on Bills, ch. 1, pp. 188, 189 (8th edit.) ; Bayley on Bills, ch. 1, 
 § 12, p. 40 (5th edit.) ; Greenleaf on Evid. §§ 569, 572 (2d edit.) ; 1 Starkie 
 on Evid. pp. 320, 321, 325- 329 (2d edit. 1833). 
 
60 PROMISSORY NOTES. [CHAP. I. 
 
 it certainly must be called the next best evidence, that is, 
 the proof of the signature of the maker, is not required ; but 
 the proof may be, nay in some States must be, by proof of 
 the handwriting of the attesting witness.^ 
 
 § 55. Promissory Notes are sometimes made under seal ; 
 and the question may then arise, whether they retain the 
 distinctive character and privileges of Promissory Notes by 
 our law, or thereby pass into another distinct class of con- 
 tracts. It has been held, in some of the American States, 
 that Notes under seal, although possessing in all other 
 respects the characteristics of Promissory Notes, are not 
 entitled to the privileges thereof, and are not negotiable.^ 
 [In others a contrary rule is established.^] Whether any 
 rule of a similar nature prevails in the foreign law generally 
 may be doubted. Heineccius manifestly considers the affix- 
 ing of a seal as a mere superfluity, and of no effect. " Sigilli 
 (says he), plane nuUus usus est in hisce litteris ; et hinc si 
 addatur, quod aliquando fieri videmus in cambiis propriis 
 (Promissory Notes),* id merito pro superfluo habetur."^ 
 
 § 56. No attestation of a witness to Promissory Notes 
 seems required by the foreign rule, any more than it is by 
 our law ; at least, no .such rule is laid down by any of the 
 elementary writers, whose works have fallen under my ob- 
 servation. The very omission to state such a qualification 
 in works professing to treat the subject at large would seem 
 to be decisive upon the question. Neither Jousse, nor Du- 
 puy de la Serra, nor Savary, nor Pothier, nor Pardessus, 
 nor Heineccius, have taken notice of it. The Scottish law 
 has silently adopted the English rule.^ 
 
 " 1 Starkie on Evid. pp. 328, 329 (2d edit. 1833) ; Greenleaf on Evid. 
 § 575 ; Phillips & Ames on Evid. 661, 662. 
 
 " Clark V. Farmers' Manuf. Comp. 15 Wend. 256. See Glyn v. Baker, 
 13 East, 509 ; Gorgier v. Melville, 3 B. & C. 45 ; Warren v. Lynch, 5 John. 
 239 ; Story on Bills, § 61 ; Heifer v. Alden, 3 Min. 332. 
 
 ' Porter v. McCollum, 15 Georgia, 629. 
 
 ' Heinecc. de Camb. cap. 2, §§ 1, 2. 
 
 ' Ibid., cap. 4, § 18. 
 
 • Thomson on Bills, ch. 1, § 2, pp. 43, 45 (2d edit.). 
 
CHAP. I.] NATURE AND REQUISITES. ' 61 
 
 § 57. In respect to the form of Promissory Notes, another 
 consideration seems proper to be taken notice of. A Promis- 
 sory Note may be made by a single person, or by two or more 
 persons. "When it is made by two or more persons, it may 
 be joint, or it may be joint and several. When two or more 
 persons sign a Note written thus, " We promise to pay," it 
 is a joint Note only, unless they add the words "jointly and 
 severally " thereto.^ When two or more persons sigh a Note 
 written thus, " I promise to pay," it is treated as a joint and 
 several Note of them all, and they may be accordingly sued 
 jointly or severally thereon ; ^ [and the agent who signs for 
 them, as in the following instance : " For I. C, R. M., J. 
 P., and T. S."— " R. M." will not be held liable.^j If a Note 
 be signed by .a person in the name of a firm, whether that 
 name represents in form more than one person, as " A & 
 Co.," or represents in form one person only, as " A" ; in 
 both cases it is treated as the joint Note of the firm, and all 
 the partners may be jointly sued thereon, whether the words 
 be " We promise," or " I promise." * When a Note is signed 
 by two persons, written, " We jointly or severally promise," 
 " or " is construed to mean " and," and it is deemed a joint 
 and several Note.^ When a Note is signed by two persons, 
 written thus, " We promise," and signed, " A B, principal, 
 C D, surety," it is still the joint Note of both ; and if it were 
 
 ' Chitty on Bills, ch. 12, p. 562 (8th edit.) ; Bayley on Bills, ch. 2, § 5, 
 pp. 50-52 (5th edit.) ; Bangor Bank v. Treat, 6 Greenl. 207. 
 
 '' Ibid. ; Clerk v. Blackstock, Holt, N. P. 473 ; Marsh v. Ward, Peake, 
 130; Hall v. Smith, 1 B. & C. 407; Galway u. Matthew, 1 Camp. 403 ; 
 Hemmenway v. Stone, 7 Mass. 57 ; Ladd v. Baker, 6 Foster, 76. 
 
 ' Ex parte Buckley, 14 M. & W. 469 ; In the matter of Clarke, 1 Gex, 
 Cases in Bankruptcy, 153. In the latter ease, Parke, B. says: "Hall v. 
 Smith, 1 B. & C. 407, cannot be supported." 
 
 * Ex parte Buckley, 14 M. & W. 469. 
 
 ' Chilty on Bills, ch. 12, p. 563 (8th edit.) ; Bayley on Bills, ch. 9; p. 380 
 (5th edit.), and note 93 ; Rees v. Abbott, Cowp. 832 ; post, § 58. " We or 
 either of us " is joint and several. Pogue v. Clark, 25 111. 333. " We 
 promise,'' signed by a sole maker, is his separate Note. Holmes v. Sinclair, 
 19 111. 71. 
 
62 PKOMISSOEY NOTES. [CHAP. I. 
 
 written, " I promise," and signed in the same manner, it 
 would be tlie joint and several Note of both.^ For the lan- 
 guage designating the principal and surety does not change 
 the rights of the payee or subsequent holder, but merely 
 ascertains the relation of the makers to each other ; and 
 operates as notice of that relation to the other parties thereto. 
 § 58. Promissory Notes are sometimes made in a very 
 irregular manner, where the intention of the original parties 
 is, that a third person should become a surety therefor. 
 Thus, for example, if a person, not the payee of a Promis- 
 sory Note, but intending to become a surety therefor, should, 
 at the time when it is made, instead of signing himself as 
 a surety at the bottom of the Note, write at the bottom 
 thereof, below the signature of the maker, or on the back 
 thereof, " I acknowledge myself holden as a surety for the 
 payment of the above Note," the question would arise, 
 whether he would be bound thereby to the payee, and, if 
 bound, in what manner. And it has been held upon such a 
 Promissory Note, that the maker and the surety are to be 
 deemed both original promisors, and the Note a joint and 
 several Promissory Note to the payee, although, as between 
 the maker and the other party, they should stand in the relar 
 tion of principal and surety .^ And it seems, that the same 
 rule would apply, if the party indorsed his name in blank 
 only on the Note at the time when it was made.^ It would 
 be otherwise, if the indorsement were at a subsequent period, 
 [unless in compliance with a former agreement so to do,*] 
 for then other questions and considerations would intervene.* 
 
 ' Hunt V. Adams, 5 Mass. 358 ; S. C. 6 Mass. 519 ; Palmer v. Grant, 
 4 Conn. 389 ; Eawstone v. Parr, 3 Russ. 424. 
 
 ' Hunt V. Adams, 5 Mass. 358 ; S. C. 6 Mass. 519 ; 7 Mass. 518 ; Josselyn 
 V. Ames, 3 Mass. 274 ; Baker v. Briggs, 8 Pick. 122 ; Chaffee v. Jones, 19 
 Pick. 260 ; Austin v. Boyd, 24 Pick. 64 ; Moies v. Bird, 11 Mass. 436 ; Or- 
 vis V. "Newell, 17 Conn. 97. 
 
 = Ibid. ; Sweetser v. French, 13 Met. 262 ; S. C. 2 Cush. 310. 
 
 • Leonard v. Wildes, 36 Maine, 265 ; Hawkes v. Phillips, 7 Gray, 284. 
 
 ' Tenney v. Prince, 4 Pick. 385 ; Ulen v. Kittredge, 7 Mass. 233 ; Birch- 
 ard V. Bartlet, 15 Mass. 279. 
 
CHAP. I.J NATURE AND EEQUISITES. 63 
 
 § 59. The doctrine has been pressed somewhat further in 
 New York ; and it has been held, that where a person at the 
 time of the making of a negotiable Note wrote on the back 
 of it, "For value received, I guarantee the payment of the 
 within Note," or simply, " I guarantee the payment of the 
 within Note," he was to be treated as a joint and several 
 promisor with the maker thereof, and not as a guarantor.^ 
 But, in other States, a different doctrine has been held, and 
 the party treated' as a mere guarantor.^ 
 
 ' Luqueer v. Proser, 1 HUl, 256 ; S. C. 4 Hill, 420 ; Hough i'. Gray, 19 
 Wend. 202; Douglass v. Howland, 24 Wend. 35; Miller v. Gaston, 2 Hill, 
 188; McLaren v. Watson's Ex'rs., 26 Wend. 430; Manrow v. Durham, 3 
 Hill, 584, 685; post, § 133. See Partridge v. Colby, 16 Barb. 248. 
 
 ^ Oxford Bank v. Haynes, 8 Pick. 423 ; Green v. Dodge, 2 Hamm. Ohio, 
 498. But see Arnsbaugh v. Gearhart, 1 Jones, Penn. 482 ; post, §§ 134, 
 468. In the case of Luqueer v. Proser, 1 Hill, 256, Mr. Justice Cowen, in 
 delivering the opinion of the Court, reviewed the cases at large, and said : 
 '' In Hunt V. Adams, 5 Mass. 358, Chaplin made a Note payable to Ben- 
 nett, the plaintiff's intestate, under which Adams wrote, ' I acknowledge 
 myself holden as surety for the payment of the demand of the above Note.' 
 The Court held an action to be sustainable by the payee against ildams, as 
 upon a Promissory Note. One count sdt out a joint and several Note of 
 him and Chaplin ; and the other, a several Note of Adams. Parsons, C. J. 
 said, that, as to the intestate, the two papers must be considered the joint 
 and several Promissory Note of Chaplin and Adams ; that it was the same 
 thing in effect as if Adams's name had been signed directly to the Note as 
 surety. In White v. Howland, 9 Mass. 314, one Tabor made his Note pay- 
 able to Wm. White, or order; on which the defendant, with another, 
 indorsed, ' For value received we jointly and severally undertake to pay 
 the money within mentioned to the said Wm. White.' The Court said, 
 the case was within the reason of Hunt v. Adams, and the effect of the 
 defendant Howland's signature the same as if he had signed the Note on 
 the face of it as surety ; that is to say, according to Hunt v. Adams, the 
 whole was to be taken as a joint and several Promissory Note by Tabor, 
 Howland, and the co-signer with the latter. In Hough v. Gray, 1 9 Wend. 
 202, Moon made his Note payable to Cameron, or bearer, and Hough in- 
 dorsed, ' This may certify that I guarantee the payment of the within Note.' 
 We held that he was liable as maker, severally to Gray, who had purchased 
 the paper of Cameron. I remarked that the Court below were clearly 
 right in holding that Hough was liable as a joint and several maker, with 
 Moon, the admitted maker; referring to the cases collected in Dean v. 
 Hall, 17 Wend. 214, among which are the two cases I now cite from the 
 
64 PKOMISSOKY NOTES. [CHAP. I. 
 
 Mass. Rep. If the respective papers in those cases were in effect joint and 
 several Promissory Notes, it followed, that those in Hough v. Gray were 
 such ; and that they were negotiable like a Promissory Note. These cases 
 decide the present. M. Prosser's guaranty was the same in legal effect as 
 if he had signed with Edson and Arnold as surety. His promise was abso- 
 lute ; not a mere commercial indorsement. In Allen v. Rightmere, 20 
 John. 365, the Court said of such an undertaking : ' It is absolute that the 
 maker shall pay the Note when due, or that the defendant (the indorser) 
 will himself pay it.' How is this distinguishable from a direct signature as 
 surety ? In the latter case, both promised to see the money paid at the 
 day. A man writes thus : ' I promise that $ 1 00 shall be paid to A or 
 bearer ' ; who would doubt that such a promise would be a good Note ? 
 The use of the word guaranty, or warrant, or stipulate, or covenant, or 
 other word importing an obligation, does not vary the effect. Read the ob- 
 ligation of a man who signs a Note with his principal, ' A B surety ' ; both, 
 and each, virtually stipulate in the language of the Note 1 have supposed. 
 Both promise that the payee shall receive. In Morice v. Lee, 8 Mod. 362, 
 364, Fortescue, J., said, 'I promise that J. S., or order, shall receive £100,' 
 is a good Note. Suppose it to stand, 'shall receive £100 of James Jack- 
 son'; or, 'I will see that £l00 is paid by James Jackson'; all this, and 
 the like, is no more than saying, I will pay so much by the hand of another. 
 If there be in legal effect an absolute promise that money shall be paid, 
 all the rest is a dispute about words. A Note is payable to A or order, and 
 he indorses it to B thus : ' Pay the contents to B. I waive presentment and 
 notice as indorser' ; this is a good Promissory Note. The law raises an ab- 
 solute promise on such an indorsement. No doubt it enures as an indorse- 
 ment for the purpose of transferring the principal Note ; biit it is moreover 
 an absolute promise to pay. It is saying, ' So much is, without condition, 
 due from the indorser to the indorsee.' And a common due bill is a Note. 
 Kimball v. Huntington, 10 Wend. 675, 679, 680. The whole inquiry is, 
 does the paper import an engagement that money shall be paid absolutely ? 
 If it do, no matter by what words, it is a good Note. Then, on the ques- 
 tion whether this Note be joint or several, or both : 'I promise to pay,' 
 signed by two, is joint and several. Chitty on Bills, 561 (Am. edit, of 
 1839). Each engages for himself and both. It is the same thing where 
 one promises as principal; and the other as surety, and whether they both 
 sign on the same side of the paper, or on different sides. Each engages, 
 and both engage, for the payment of the same sum, at the same time, and 
 to the same person ; their obligations are identical throughout ; both papers 
 make but one instrument. When the indorser says, 'I guarantee the pay- 
 ment of the within Note,' he promises the future holder, as well as the 
 payee. The authorities say rightly, he has done the same as if he had 
 signed as surety. By reference, the guaranty becomes a part of the principal 
 Note. The guarantor becomes surety for the Note as it is, payable to 
 bearer, without declaring that he will engage to any other than the payee. 
 
CHAP. I.] NATURE AND REQUISITES. 6^ 
 
 That the guaranty in question does not come up to the definition of 
 Promissory Note, we are referred to Oxford Bank v. Haynes, 8 Pick. 42; 
 In that case, it was certainly held that the words, ' I guarantee the paymei 
 of the within Note,' signed by the guarantor, made him liable as such, bi 
 not as surety ; in other words, the Court denied to such an indorsement tt 
 operation of a Promissory Note. But the decision was based on a rule < 
 to the mode of fixing guarantors, peculiar to that State. The Court a( 
 mitted that, if the engagement were to be considered absolute, it was 
 Promissory Note ; but they Considered it conditional, and, under some oi 
 stances at least, as requiring presentment and notice, to fix the guarantoi 
 and such is the doctrine of some other States. It is, however, unknow 
 here. It was repudiated in Allen v. Rightmere, and often since ; in oi 
 case, very lately, on a review of several decisions by the Courts of tl 
 United States, and by the State Courts. This distinction prevailing i 
 Massachusetts, of course makes all the difference. With our rules as 1 
 charging guarantors, the learned Court in Massachusetts virtually concec 
 that the defendant's guaranty would be considered a Note, even ther 
 Another case, cited for the defendant, proceeded on the same ground i 
 that of Oxford Bank v. Haynes. It is Greene v. Dodge, 2 Hamm. Ohi 
 498. Another (Cumpston v. McNair, 1 Wend. 457) went on the grour 
 that the guaranty was not, as in this case, absolute, but was made co 
 ditional by its own express provisions. All three of these cases will 1 
 found, when their principle is seen, to be in favor of the views I have e: 
 pressed concerning the guaranty now in question. I am aware of no cai 
 the other way. Non constat, in Murch v. Churchill, what was the languaj 
 of the guaranty ? The case is very far from deciding the present." Poi 
 §§ 133, 134. 
 
66 PROMISSORY NOTES. [CHAP. U. 
 
 CHAPTER II. 
 
 COMPETENCY AND CAPACITY OP PARTIES TO PROMISSORY NOTES. 
 
 § 60. Having disposed of these considerations relative to 
 the nature and requisites of Promissory Notes, let us next 
 proceed to the inquiry, who are competent and capable of 
 becoming parties thereto, as makers, payees, indorsers or in- 
 dorsees, or holders thereof. For, however in all other re- 
 spects the instrument may have all the requisites to give it 
 complete effect and operation, yet if it is not made by parties 
 who are competent to contract the obligations arising there- 
 from, or made to parties capable to take or hold any title 
 derived therefrom, it must be deemed in law a mere nullity, 
 and incapable of being enforced in any court of justice, as 
 to those parties. Still, however, it may be binding and 
 obligatory as between .other parties thereto, who do possess 
 such competency and capacity ; and therefore the inquiry 
 must necessarily be important, by and between whom, and 
 in what cases, a particular Promissory Note is valid or 
 not. 
 
 § 61. In the first place, then, let us inquire who are com- 
 petent to contract and bind themselves as makers of a Prom- 
 issory Note. And here the general rule applies, that all 
 persons are competent to bind themselves as makers of a 
 Promissory Note who are not incapacitated by some special 
 provision or disability created by law. Hence, all persons of 
 full age, sui juris, and of sound understanding, whether 
 males or females, aliens or natives, whether acting in their 
 own right, or acting as agents, guardians, trustees, ex- 
 ecutors, or administrators, or- otherwise, ew autre droit, are 
 capable of binding themselves as makers of a Promissory 
 
CHAP. II. J CAPACITY OF PARTIES. 67 
 
 Note. So are partners and corporations, acting within the 
 scope of the particular business of the partnership or cor- 
 poration.^ 
 
 § 62. Originally, it is not improbable that the same rule 
 was applied to Promissory Notes, upon their first introduc- 
 tion into use upon the continent of Europe, as seems to have 
 been adopted in relation to Bills of Exchange ; that they 
 were deemed to be strictly commercial instruments, and 
 could be made only between merchants and other persons 
 engaged in trade. But this, if it CTcr was a general rule, 
 was soon disregarded in practice ; and Bills of Exchange and 
 Promissory Notes became obligatory as privileged instru- 
 ments, upon all persons who were parties thereto, whether 
 they were merchants or not, with certain special . exceptions, 
 such, for example, as in Prance, Bills or Notes given by 
 women, whether married or single, who were not merchants ; ^ 
 or by persons, not merchants, on account of other transac- 
 tions than the operations of commerce, trafiic, exchange, 
 banking, or brokerage ; in which cases they were reduced 
 to the mere denomination of simple promises.^ In England, 
 Bills of Exchange seem, upon their first introduction therein, 
 to have been held limited to merchants and traders ; but the 
 rule was soon expanded, so as to reach all other classes of 
 persons.* And when Promissory Notes Were recognized as 
 negotiable instruments, by the Statute of 3 & 4 Anne, ch. 
 9, the language included all persons whatsoever, whether 
 merchants or traders, or not.^ 
 
 1 Story on Bills, § 72 ; Chitty on Bills, ch. 2, p. 21 (8tli edit.) ; Bayley 
 on Bills, ch. 2, §§1,5- 9, pp. 44 - 75 (5th edit.). 
 
 " Pothier, De Change, n. 27-29, 124; Jousse, Sur L'Ord. 1673, tit. 
 12, art. 3, p. 227 ; Pardessus, Droit Conim. Tom. 1, art. 55 ; Merlin, E^- 
 pertoire. Billet de Change, § 3, p. 192 (edit. 1827) ; Id. Ordre Billet h, § 1, 
 art. 4, p. 230 ; Code de Comm. art. 113, 636 ; Story on Bills, § 73. 
 
 ' Ibid. 
 
 * Chitty on Bills, ch. 1, p. 13 (8th edit.) ; Story on Bills, § 7, note 1, smJ 
 f.nem. 
 
 ' Cunningham on Bills, p. 106 ; Kyd on Bills, pp. 18, 19 (3d edit.) ; 
 Bayley on Bills, ch. 1, p. 1, note 1 (5th edit). 
 
68 PROMISSORY NOTES. [CHAP. H. 
 
 . § 63. As to trustees, guardians, executors, and adminis- 
 trators, and other persons acting en autre droit, they are, by 
 our law, generally held personally liable on Promissory 
 Notes, because they have no authority to bind, ex directo, 
 the persons for whom, or for "whose benefit, or for whose 
 estate they act ; and hence, to give any validity to the note, 
 they must be deemed personally bound as makers.^ It is 
 true, that they may exempt themselves from personal re- 
 sponsibility, by using clear and explicit words to show that 
 intention ; but, in the absence of such words, the law will 
 hold them bound.^ Thus, if an executor or administrator 
 should make or indorse a Note in his own name, adding 
 thereto the words " as executor," or " as administrator," he 
 would be personally responsible thereon. If he means to 
 limit his responsibility, he should confine his stipulation to 
 pay out of the estate.^ 
 
 .\ 64. In treating of trustees, and guardians, and other 
 persons, acting en autre droit, who become parties to Prom- 
 issory Notes, as personally responsible on such Notes, or on 
 contracts generally, which they make in that quality or 
 character, our law differs from the French law ; for that law 
 treats all such contracts as strictly the contracts of the prin- 
 cipal, through the instrumentality of the trustee, guardian, 
 or other person, acting en cmtre droit. Thus, a tutor, when 
 
 ' Story on Agency, §§280-287; Thacher «. Dinsmore, 5 Mass. 299; 
 Foster v. Fuller, 6 Mass. 58; Hills v. Bannister, 8 Cowen, 31 ; Bayley on 
 Bills, ch. 2, §§ 7, 8, pp. 68 - 74 (5th edit. 1830). 
 
 2 Bayley on Bills, ch. 2, §§ 7, 8, pp. 69 - 74 (5th edit. 1830 ) ; Eaton v. 
 Bell, 5 B. & Al. 34. A note, " I promise," &c., signed, " A B by her trus- 
 tee," does not bind the trustee personally. Taylor v. Shelton, 30 Conn. 
 132. 
 
 ' Childs V. Monins, 2 Brod. & Bing. 460 ; Curtis v. Bank of Somerset, 7 
 H. & J. 25 ; King v. Thom, 1 Term, 487 ; Bayley on Bills, ch. 2, § 8, p. 74 
 (5th edit. 1830) ; Carter v. Saunders, 2 Howard (Miss.), 851 ; Robertson 
 V. Banks, 1 Sm. & Mar. 666 ; Story on Bills, § 74. See also Barnard v. 
 Pumfret, 5 M. & C. 71 ; Bradley w. Heath, 3 Sim. 543 ; Bank of Troy v. 
 Topping, 9 Wend. 273 ; Ridout v. Bristow, 1 Cr. & J. 231 ; Connor v. 
 Clark, 12 Cal. 168 ; Fowler u. Atkinson, 6 Min. 578. 
 
CHAP, n.] CAPACITY OF PARTIES. 69 
 
 he contracts in that quality, may stipulate and promise for 
 the minor ; for it is the minor who is deemed to contract, 
 stipulate, and promise for himself by the ministry of his tutor ; 
 the law giving a character to the tutor, which makes his 
 acts to be considered as those of the minor, in all contracts 
 relating to the administration of the tutelage. It is the same 
 witli respect to a curator, and every other legitimate admin- 
 istrator. It is the same with an attorney Qprocureur ) ; for 
 the procuration (or power of attorney) which gives him the 
 right to use the name of the person for whom he contracts, 
 makes the person giving it to be considered as contracting 
 himself, through the ministry of the attorney.^ But each 
 law proceeds upon the same general principle ; for, if the 
 principal is incapable of contracting in the particular case, 
 or is not bound by the contract, then the agent, contracting 
 en autre droit, is bound by each law. Thus, for example, 
 if the tutor of a minor, not being a merchant, were to 
 draw a Bill of Exchange for the minor, the latter would 
 not be bound as drawer, and therefore the tutor would be.^ 
 
 § 65. As to agents, if they draw or indorse Notes in their 
 own names, although on account, and for the henefit of their 
 principals, they are held personally liable, because they alone 
 can be treated on the face of the Notes as parties.^ If they 
 would bind their principals, they must draw, or indorse the 
 Notes in the name of their principals, and sign for them, and 
 in their names.* • 
 
 ' Pothier on Oblig. n. 74, 448. 
 
 ' Code de Comm. art. 114; Locrd, Esprit du Code de Comm. Liv. 1, tit. 
 8, § 1, Tom. 1, p. 356. The law of Scotland coincides witli that of France. 
 1 Bell, Comm. B. 3, ch. 2, § 4, p. 396 (5th edit.) ; Story on Bills, § 75. 
 
 ' Bayley on Bills, ch. 2, § 7, pp. 69 - 74 (6th edit. 1830) ; Thomas v. 
 Bishop, 2 Str. 955 ; Mare v. Charles, 34 Eng. Law & Eq. 138 ; Goupy v. 
 Harden, 7 Taunt. 159. But see Sharp v. Emmet, 5 Whart. 288. 
 
 • Story on Agency, §§ 147-156, 275-278 ; Bayley on Bills, ch. 2, § 7, 
 pp. 69 - 74 (5th edit. 1830) ; Chitty on Bills, ch. 5, p. 186 (8th edit. 1833) ; 
 Kyd on Bills, pp. 33, 34 (3d edit). Cases of agency often involve very 
 nice and embarrassing considerations, from the peculiar language of the in- 
 strument, to decide whether the agent is personally bound or not. In order 
 
70 PBOMISSOEY NOTES. [CHAP. II. 
 
 § 66. Similar principles pervade the foreign law. Agents 
 may draw Notes (and the same rule will apply to the indorse- 
 ment of Notes) in the name of their principals. But then, 
 in order to avoid personal responsibility, agents must there, 
 also, draw the Notes in an appropriate manner ; otherwise 
 they may become personally responsible to the payee. Thus 
 Heineccius says of Bills, what is equally applicable to Notes : 
 " Quid si institor cambium trassarit ad dominum, hie vero 
 bonis labatur ? Tunc distinguitur, dominine fidem sequutus 
 sit remittens, an institoris. Hoc enim casu adversus instito- 
 rem regressum habet, aliquando etiam finito officio ; illo casu 
 ipse damnum sentire tenetur. Quum vero parum plerum- 
 que constet, utrius fidem sequutus sit remittens : ejus jure- 
 jurando rem ad liquidum perducendum esse, censet Stryck- 
 ius." 1 Perhaps the true rule of the foreign law may be (for 
 
 to bind the principal, and exonerate himself, the agent should regularly sign 
 thus : " A B (the principal) by C D his agent " (or attorney, as the case 
 may be) ; or, what is less exact, but may suffice, "CD for A B." Story 
 on Agency, § 153 j Chitty on Bills, ch. 2, pp. 37, 38 (8th edit. 1833). But 
 in practice there are innumerable deviations from this simple and appro- 
 priate form ; and the decisions upon the various eases which have arisen in 
 courts of justice involve much conflict of doctrine and opinion, and do not 
 •seem always to have proceeded upon any uniform principle of interpreta- 
 tion. Many of the cases on this subject will be found collected in Story on 
 Agency, §§ 147 - 155 ; Id. §§ 269 - 280 ; Bayley on Bills, ch. 2, § 7, pp. 
 69 - 76 (5th edit. 1830) ; Chitty on Bills, ch. 2, pp. 37 - 39 (8th edit. 1833). 
 Even if an agent draws, in his own name, on his principal, for the account 
 of the latter, the payee will be entitled to»hold him personally bound as 
 drawer. Bayley on Bills, ch. 2, § 7, pp. 69 - 73 (5th edit. 1830) ; Story 
 on Agency, §§ 156, 269. So, an agent, who should draw a Bill in favor of 
 his principal on the purchaser of goods, sold on account of his principal, 
 would be personally liable to the latter, as drawer of the Bill, upon its dis- 
 honor. Lefevre v. Lloyd, 5 Taunt. 749 ; Story on Agency, §§ 156, 269. 
 However, an exception is generally made in favor of a known public agent, 
 who, if he draws on account of the public, is generally held not personally . 
 responsible on the Bill, unless under special circumstances. Chitty on Bills, 
 ch. 2, pp. 37 - 39 (8th edit. 1833) ; Story on Agency, §§ 302 - 307. See 
 also Eaton v. Bell, 5 Barn, k Aid. 37. See Fox v. Frith, 10 M. & W. 135, 
 136"; Story on Bills, § 76. 
 
 ^ Heineoc. de Jure, Camb. 4, §§ 25, 26 (edit. 1769); Id., cap. 5, § 12; 
 Pothier on Oblig. n. 74, 448. 
 
CHAP, n.] CAPACITY OP PARTIES. tl 
 
 some uncertainty seems to rest upon it), that the question is 
 one which resolves itself into the simple coiisideratioia, not 
 of the form of the instrument, but of the fact to whom the 
 credit, under all the circumstances, is given, whether to the 
 principal or to the agent.^ 
 
 § 67. One of the most important questions, in a practical 
 senise, which can arise is, when and under what circum- 
 stances an agent makes himself personally a party to a Prom- 
 issory Note, and when and under what circumstances his 
 principal only is bound as a party. As to the mode in which 
 he may acquire his authority, and the nature and extent of 
 
 ' I have not found in the foreign writers the question treated at large, 
 ■when, and in what cases, and under what particular circumstances, the 
 agent will be personally bound or not, as drawer of a Bill, drawn on ac- 
 count of his principal, with the practical fulness or distinctness with which 
 it has been treated by the English and American courts. It is not improb- 
 able that the doctrine of Heineceius, stated in the text, contains the gen- 
 eral principles adopted in the foreign law, without any very exact consid- 
 eration of the form which the contract assumes in the written instrument. 
 So that the question then turns, or at least may turn, simply upon this : 
 To whom, taking all the facts, was the credit actually given, and intended 
 to be given ? to the agent, or to the principal ? See Pothier, De Change, 
 n. 28. Pothier, in his treatise on Obligations (n. 74, 44.8), has pointed out 
 distinctly the difference between cases where the agent contracts in his 
 own name, and the cases where he contracts in the name of his principal. 
 Thus he says, n. 74 : " What has been hitherto said as to our only being 
 able to stipulate or promise for ourselves, and not for another, is to be uii- 
 derstood as applying to contracts which we make in our own name ; but 
 we may lend our ministry to another person, for whom we may contract, 
 stipulate, or promise ; and, in this case, it is not we, properly speaking, who 
 Contract, but the other person, who contracts by our ministry." And again 
 he says, n. 448 : " In order to raise the accessory obligation of employers, 
 the manager must have contracted in his own name, although he was acting 
 for the employer ; but, when he contracts in his quality of agent, he does 
 not enter into any contract himself; it is his employer who contracts by his 
 ministry. Supra, n. 74. In this case, the manager does not oblige him- 
 self; it is the employer, alone, who contracts a principal obligation, by the 
 ministry of his manager. When the manager contracts in his own name, 
 the contract, to oblige his employer, must concern the affair to which he is 
 s^ppointed, and the manager must not have exceeded the limits of his com- 
 mission. Dig.'Lib. 1 (a), §§ 7, 12, de Exerc. Act." Story on Bills, § 77. 
 
T2 PEOMISSOEY NOTES. [CHAP. H. 
 
 Lis authority, it is not the design of these Commentaries to 
 enter into any inquiry or examination. That properly be- 
 longs to a treatise upon the Law of Agency.^ But, suppos- 
 ing the agent . to have full authority to make or indorse a 
 Notoifor his principal, the mode in which it is to be exercised 
 in order to exempt himself from personal responsibility, and 
 to bind his principal, naturally belongs to the discussion of 
 the present subject. It is the more necessary, because the 
 authorities are not entirely agreed in their conclusions as to 
 particular cases, however well they may agree in an exposi- 
 tion of the general principles, which ought to govern in all. 
 It has been laid down by a learned author, that where a Note 
 is drawn by an agent, executor, or trustee, he should take 
 care, if he means to exempt himself from personal responsi- 
 bility, to use clear and explicit words to show that intention.^ 
 But, then, the difficulty is not in ascertaining the value of 
 the admonition, or its true use, as a guide to the diligent and 
 the cautious ; but it is to ascertain, when, in a just juridical 
 sense, the intention is upon the face of the instrument clear 
 and explicit, and what is to be the interpretation thereof 
 where the language is ambiguous, or obscure, or admits of 
 various readings. [The words " per procuration," added to 
 the maker's or acceptor's name, convey an intimation of a 
 limited authority, and the other party is bound to examine 
 into the extent of that authority.^] 
 
 § 68. The true and best mode of an agent's signing, or in- 
 dorsing, a Promissory Note for his principal, where he means 
 to make the latter, and not himself, personally responsible 
 thereon, is to sign, or indorse, the same, " A B (the princi- 
 pal) by his attorney or agent C D." * If the signature be, 
 
 I See Story on Agency, §§ 45-143. See White v. Hildreth, 13 N. H. 
 104. 
 
 ' Bayley on Bills, eh. 2, § 7, p. 69 (5tli edit.). 
 
 ' Alexander v. McKenzie, 6 C. B. 766. 
 
 * Chitty on Bills, eh. 2, pp. 37, 38 (8th edit.) ; Story on Agency, § 153 
 and note, § 275 ; Wilks v. Back, 2 East, 142 ; Abbott on Shipp. Pt. 3, ch. 1, 
 § 2, note (c). 
 
CHAP, n.] " CAPACITY OF PARTIES. 73 
 
 "CD for A B" (the principal), it will be equally available, 
 although not so formally correct.^ But, in the practice of 
 common life, there are many deviations from this course ; 
 and occasionally they give rise to great embarrassments, in 
 endeavoring to ascertain whether, in the actual language 
 used, the agent is personally bound, or the principal alone is 
 bound, or both. Neither is it possible to extract from the 
 authorities any consistent rules to guide us in this matter of 
 interpretation. Where, indeed, upon the face of the instru- 
 ment, the agent signs his own name only, without referring 
 to any principal, there he will be held personally bound, al- 
 though he is known to be or avowedly acts as agent.^ But, 
 in many cases, the principal is referred to in the instrument, 
 and it is to such cases that the preceding observations apply. 
 § 69. A liberal construction is ordinarily adopted in the 
 exposition of commercial instruments, for the purpose of en- 
 couraging trade, and to meet, as far as possible, the ordinary 
 exigencies of business, which require promptitude of execu- 
 tion, and rarely admit of deliberate examination of the true 
 force of words. In furtherance of this policy, if it can, upon 
 the whole instrument, be collected, that the true object and 
 intent of it are to bind the principal, and not to bind the 
 agent, courts of justice will adopt that construction of it, 
 however informally it may be expressed.^ Thus, where an 
 
 ' Ibid. [But it has been held that a Note signed A B [for C D] is upon 
 its face the Note of A B, though but for the brackets it would be the Note 
 of C D. Early v. Wilkinson, 9 Grattan, 68.] 
 
 ^ Storyon Agency, §§269-278; Story on Bills, § 76 and note ; Chittyon 
 Bills, ch. 2, pp. 37, 38 (8th edit. 1833) ; Id. oh. 5, p. 186; Bayley on Bills, 
 ch.- 2, § 7, pp. 69, 70 (5th edit.) ; ante, § 63. See, as to indorsement of 
 Notes by Agents, Heineoc. de Camb. cap. 3, § 15, § 7 ; Id. cap. 2, §§ 7, 9. 
 
 " Ibid.; Pentz v. Stanton, 10 Wend. 271; Mechanics' Bank of Alexan- 
 dria V. Bank of Columbia, 5 Wheat. 326 ; Story on Agency, § 154; Id. 
 §§269,270,275,276,395-400; Townsend w. Hubbard, 4 Hill, 351 ; Morse 
 V. Green, 13 N. H. 32. [In the latter case it was held, that if a party au- 
 thorize another to subscribe his name to a Note, the fact that the signature 
 was placed there by an agent need not appear on the Note. The contrary 
 doctrine advanced in Wood v. Goodridge, 6 Gush. 117, is unsupported by 
 reason or authority. See Forsyth v. Day, 41 Maine, 382.] 
 
74 PEOMISSOEY NOTES. [CHAP. H. 
 
 agent, duly authorized, made a Promissory Note thus : " I 
 promise to pay J. S., or order," &c., and signed the Note, 
 " Pro C D, A B " ; it was held to be the Note of the princi- 
 pal, and not of the agent, although the words were, " I 
 promise." 1 So, where A and B wrote a Note in these 
 words : " We jointly and severally promise," and signed it 
 A and B for 0, it was held to be the Note of C, and not of 
 A and B, the agents.^ So, where the Note was, " I promise," 
 &c., and it was signed by the agent, " For the Providence Hat 
 Manufacturing Company, A B " (the agent) ; it was held to 
 be a Note of the company, and not of the agent.^ So, a 
 Promissory Note of a like tenor, signed by the agent in this 
 manner, — " A B, agent for C D," has been held to be the 
 Note of the principal, and not of the agent.* So, where a 
 Promissory Note was in these words : " I, the subscriber, , 
 Treasurer of the Dorchester Turnpike Corporation, for value 
 received, promise," &c., and it was signed " A B, Treasurer 
 of the Dorchester Turnpike Corporation " ; it was held to be 
 the Note of the corporation, and not of the treasurer.^ So, 
 where a Note purported to be a promise by " The President 
 and Directors " of a particular corporation, and was signed ' 
 " A B, President," it was held to be the Note, not of A B, 
 but of the corporation.^ But if the Note had been, " I, A B, 
 
 • Long V. Colburn, 11 Mass. 97 ; Ex parte Buckley, 14 M. & W. 469; , 
 In the matter of Clarke, 1 Gex, Cases in Bankruptcy, 153. 
 
 ' Rice V. Gove, 22 Pick. 158 ; Story on Agency, § 154 ; Id. §§ 275, 276, 
 395. 
 " Emerson v. Prov. Hat. Manuf. Co., 12 Mass. 237. 
 
 * Ballou V. Talbot, 16 Mass. 461. But see Delvitt v. Walton, 5 Seld. 
 571. ' 
 
 ' Mann v. Chandler, 9 Mass. 335. See Hills v. Bannister, 8 Cowen, 31 ; 
 Story on Agency, § 276 ; Barker v. Mechanics' Fire Ins. Co., 3 Wend. 94 ; 
 Mott V. Hicks, 1 Cowen, 513 ; Brockway u. Allen, 17 Wend. 40 ; Cole v. 
 Sherwood, 20 Verm. 42. 
 
 '■ Mott V. Hicks, 1 Cowen, 513. See also Bowen v. Morris, 2 Taunt. 
 374 ; Lindas v. Melrose, 2 Hur. & Nor. 293 ; Shelton v. Darling, 2 Conn., 
 435 ; Brockway v. Allen, 1 7 Wend. 40 ; Story on Agency, §§ 278 and note, 
 279 ; Babcock v. Beman, 1 Kernan, 200 ; Draper v. Mass. Steam Heat^ 
 ing Co., 6 Allen, 338; Ellis v. Pulsifer, 4 Allen, 165 ; Barlow v. Congre- 
 
CHAP. II.] CAPACITY OF PARTIES. 75 
 
 President of the Corporation (naming it), promise to pay," 
 &c., it would (it seems) have been deemed to be the personal 
 Note of A B, and not of the corporation.^ So, where the 
 agent of a corporation drew a Bill of Exchange upon the 
 president of the corporation, styling him such, and the latter 
 accepted the Bill, it was held that he was not personally lia- 
 ble, if he had authority to accept the Bill ; but the corpora- 
 tion was alone liable.^ So, where the agents of a corporation, 
 
 gational Society, 8 Allen, 460 ; Haskell v. Cornish, 13 Cal. 45 ; Shaver v. 
 Ocean Co., 21 Cal. 45 ; Baker v. Chambles, 4 Greene (lo.), 428. But 
 see Sanborn v. Neal, 4 Min. 126. 
 
 ' Barker v. Mechanics' Fire Ins. Co., 3 Wend. 94 ; Drake v. Flewellen, 
 33 Ala. 106 ; Slawson v. Loring, 5 Allen, 340 ; Haverhill Fire Ins. Co. 
 V. Newhall, 1 Allen, 130; Morell v. Codding, 4 Allen, 403 ; Fiske v. El- 
 dredge, 12 Gray, 474. See post, § 70. But see Brockway v. Allen, 17 
 Wend. 40 ; Hills v. Bannister, 8 Cowen, 31 ; Story on Agency, § 276 ; 
 Mann v. Chandler, 9 Mass. 335. It is not easy to reconcile all the cases in 
 the books on this subject ; although I cannot but think that the true prin- 
 ciple to be deduced from them is that stated in the text. See Paley on 
 Agency, by Lloyd, pp. 378-385, and Bayley on Bills (2d Amer. edit, from 
 6th London edit.), by Phillips and SewaiU, ch. 2, § 7, pp. 68 - 76 (edit. 1836) 
 and notes. Ibid. ; Bowen v. Morris, 2 Taunt. 374 ; Kennedy v. Gouveia, 3 
 Dowl. & Kyi. 503 ; Dubois v. Del. and Hudson Canal Co., 4 Wend. 285. 
 In Pentz v. Stanton, 10 Wend. 271, where an agent drew a Bill for a pur- 
 chase of goods, on account of his principal, and signed the BiU " A B, 
 agent," not stating the name of his principal, it was held that he, and not 
 his principal, was personally bound by the Bill, as drawer. But the prin- 
 cipal was held liable for the goods on a count for goods sold and delivered, 
 as the form of the Bill showed that exclusive credit was not given to the 
 agent. There is a curious case cited in the Digest, Lib. 14, tit. 3, 1. 20, 
 where the question, whether an agent, who wrote a letter to a creditor, 
 stafing himself to be agent of his principal, was personally liable on the 
 contract stated in the letter ; and it was held that he was not, as he wrote 
 confessedly as an agent. Pothier, Pand. Lib. 14, tit. 3, n. 2 ; 1 Domat. B. 1, 
 tit. 16, § 3, art. 8. In Dubois v. Del. and Hudson Canal Co., 4 Wend. 
 285, an agent signed and sealed a contract, " M. W., agent for the Del. 
 and Hudson Canal Co." ; and it was held that he was not personally liable 
 thereon, as he was authorized to make the contract, although it was not 
 under the seal of the corporation. S. P. Kandall v. Van Vechten, 19 John. 
 60. But see Hopkins v. Mehafiy, 11 Serg. & K. 129. See Story on Agency, 
 §§ 274 - 278 ; NichoUs v. Diamond, 24 Eng. Law & Eq. 403. 
 
 ^ Lazarus v. Shearer, 2 Ala. 718, N. S. 
 
76 PEOMISSOEY NOTES. [CHAP. II. 
 
 being duly authorized, made a written contract as follows : 
 " We hereby agree to sell," &c., and signed it as agents of the 
 corporation, it was held that they were not personally bound 
 thereby ; but the corporation was.^ So, where A, an agent,' 
 duly authorized, wrote on a Note, " By authority from B, I 
 hereby guarantee the payment of this Note," and signed in 
 his own name, A ; it was held to be the guaranty of the prin- 
 cipal, and not of the agent.^ So, where A, an agent, entered 
 into and signed an agreement " as agent for and on behalf 
 of B," and B shortly afterwards wrote on it the words, " I 
 hereby sanction this agreement, and approve of A's having 
 signed it on my behalf" ; it was held to be the agreement of 
 B, and that A was not personally responsible thereon.^ So,' 
 where, on a sale of real property by a corporation, a memo- 
 randum of the sale was signed by the parties, in which it was 
 stated that the sale was made to A B, the purchaser, and 
 that he and D, "mayor of the corporation, on behalf of 
 himself and the rest of the burgesses and commonalty of the 
 borough of Caermarthen, do mutually agree to perform and 
 fulfil, on each of their parts respectively, the conditions of 
 sale," and then came the signature Qf the purchaser, and of 
 " C D, mayor " ; it was held that the agreement was that 
 of the corporation, and not that of the mayor personally ; 
 and that, consequently, the mayor could not sue thereon.^ 
 So, where in articles of agreement the covenants were in the 
 name of a corporation, without mention of any agent, but the 
 instrument was signed by the president of the corporation, 
 by his private name on behalf of the corporation, and sealed 
 
 ' Many v. Beekman Iron Company, 9 Paige, 188 ; Evans v. Wells, 22 
 Wend. 325. 
 
 ' N. E. Mar. Ins. Co. v. De Wolf, 8 Pick. 56. See Passmore v. Mott, 2 
 Binn. 201 ; Story no Agency, §§ 160 a, 161, 269, 270, 275, 276, 395-400. 
 
 ^ Spittle V. Lavender, 2 Brod. & Bing. 452. 
 
 ' Bowen v. Morris, 2 Taunt. 374, 387. See Kennedy v. Gouveia, 3 
 Dowl. & Ryl. 503 ; Hopkins v. Mehaffy, 11 S. & E. 129 ; Meyer u. Barker, 
 6 Binn. 228, 234. See Woodes v. Dennett, 9 N. H. 55 ; Story on Agency, 
 §§ 275, 276. 
 
CHAP, n.] CAPACITY OF PARTIES. 77 
 
 with his private seal ; it was held that he was not personally 
 liable thereon.^ 
 
 § 70. On the other hand, unless some agency is apparent 
 on the face of the instrument, it has been not unfrequently 
 held, that the principal is not bound, although the agent had 
 full authority to make the contract.^ Thus, where a wife had 
 full authority to sign Notes for her husband, and she made a 
 Note in her own name, not referring to her husband, either 
 in the body of the Note or in the signature, it was held that 
 the husband was not bound.^ [But this decision may have 
 been upon some peculiar circumstances in that particular 
 -case ; since there seems to be no reason why a wife, like any 
 other agent, may not bind her principal, by making or in- 
 dorsing Notes for him in her own name, if authorized by him 
 to use her name instead of his, in making the contract.*] 
 So, where A, B, and C made a Note as follows : " We, the 
 subscribers, jointly and severally, promise to pay D, or order, 
 
 for the Boston Glass Manufactory, the sum of -," and 
 
 they signed tlie Note in their own names, without saying " as 
 agents," it was held that they were personally bound, and 
 not the corporation.^ So, where two persons made a Promis- 
 sory Note in this form : " We, the subscribers, trustees for 
 the proprietors of the new congregational meeting-house 
 at A, promise to pay B the sum of," <fec., and signed it C, D, 
 E, F ; it was held that the Note bound them personally, and 
 not the proprietors.^ So, where the committee of a town 
 
 • Hopkins v. Mehaffy, 11 S. & E. 129 ; Story mi Agency, §§ 154, 273, 
 note. 
 
 ^ Story on Agency, § 147, note. 
 
 ' Minard v. Mead, 7 Wend. 68. But see Lindus u. Bradwell, 5 C. B. 583. 
 
 * [Se,e Lindus v. Bradwell, 5 C. B. 583 ; Rukert v. Sanford, 5 Watts & 
 Serg. 164 ; Leeds v. Vail, 3 Harris, 185 ; Prestwick v. Marshal, 4 C. & P. 
 594 ; 7 Bing. 565 ; Hancock Bank v. Joy, 41 Maine, 568.] 
 
 ' Bradlee v. The Boston Glass Manufactory, 16 Pick. 347. This case 
 seems distinguishable from that of Kice v. Gove, 22 Pick. 158, principally 
 in the circumstance, that the signatures of A, B, and C did not purport to be 
 as agents. Story on Agency, § 147 and note, §§ 154, 275, 276. 
 
 " Packard v. Nye, 2 Met. 47 ; Cleveland v. Stewart, 3 Kelly, 283. 
 
78 PROMISSORY NOTES. [CHAP. H. 
 
 made a contract in the following words : " Agreement be- 
 tween A, B, and C, committee of the town of N., of the one 
 part, and D and E of the other part ; and the said commit- 
 tee agree to pay," &c., signing their. own names. A, B, and 
 C ; it was held that they were personally liable on the con- 
 tract.i So, where a committee of the directors of a turnpike 
 corporation entered into a contract under seal, describing 
 themselves as such committee, on the one part, with the 
 plaintifif on the other part, and signed and sealed the con- 
 tract in their own names ; it was held that they were person- 
 ally responsible ; for it was the deed of the committee, and 
 not of the directors, or of the corporation.^ So, where cer- 
 tain persons signed a Note, describing themselves as " Trus- 
 tees of Union Eeligious Society," it was held that they were 
 personally liable thereon, although it was proved that the 
 society was a corporation, and the Note was given for a bal- 
 ance due from the society for a church bell.^ 
 
 § 71. Another important inquiry is, how far a person, who 
 signs a Promissory Note in the name of his principal, is per- 
 sonally bound thereby, if, in point of fact, his principal is not 
 bound thereby, either because the agent had no authority 
 whatsoever, or had exceeded his authority. That a person, 
 thus acting without authority, or exceeding his authority, 
 would be personally bound therefor to the other contracting 
 party, cannot be doubted. But the question is, whether he 
 may, under such circumstances, be treated as personally liable 
 on the very instrument itself, if there are apt words therein, 
 which may properly charge him. Thus, for example, if an 
 agent should, without due authority, make a Promissory 
 
 ' Simonds v. Heard, 23 Pick. 121. 
 
 ' Tippets V. Walker, 4 Mass. 595. But see Leach v. Blow, 8 S. & M. 
 221. 
 
 • Hills V. Bannister, 8 Cowen, 31 ; Story on Agency, § 154 ; Shelton v. 
 Darling, 2 Conn. 435 ; Barker v. Mechanics' Fire Insur. Co., 3 "Wend. 94. 
 But see Mann v. Chandler, 9 Mass. 335 ; Mott v. Hicks, 1 Cowen, 513. 
 See Cooch v. Goodman, 2 A. & El. N. 8. 580, 595, 596 ; Story on Agen» 
 cy, § 276. See cases cited, notes 6 & 7, § 69. 
 
CHAP. II.] CAPACITY OF PARTIES. 79 
 
 Note, saying in it, " I promise to pay," &c., and sign it " C D, 
 by A B, his agent," or "A B, agent of D " ; in such a case 
 may the words, as to the agency, be rejected, and the agent 
 be lield personally answerable as the promisee of the Note ? 
 Upon this point the authorities do not seem to be entirely 
 agreed.^ 
 
 § 72. As to partners, the signature of the firm is, in gen- 
 eral, indispensable to create a liability of the partnership, as 
 makers, or indorsers, of Promissory Notes ; ^ and each part- 
 ner has complete authority to use it ; and, when so used, the 
 Note will be deemed to be made on the partnership account, 
 
 ^ In cases where a person executes an instrument in the name of an- 
 other, without authority, there is some diversity of judicial opinion as to 
 the form of action in which the agent is to be made liable for the breach 
 of duty. In England, it is held, that the suit must be by a special action 
 on the case. Polhill v. Walter, 3 B. & Ad. 114; Jenkins v. Hutchinson, 
 13 Queen's Bench, 744. The same doctrine has been asserted in Massac 
 chusetts. Long v. Colburn, 11 Mass. 97; Ballou v. Talbot, 16 Mass. 461 ; 
 Jefts V. York, 4 Cush. 371 ; 10 Cush. 392 ; Abbey v. Chase, 6 Cush. 56 ; in 
 Connecticut, Ogden v. Raymond, 22 Conn. 385 ; in Indiana, McHenry v. 
 Duffield, 7 Blackf. 41 ; and in Pennsylvania, Hopkins v. Mehaffy, 11 S. & 
 E. 129. In New York, it has been held, that an action may, under such 
 circumstances, be maintained upon the instrument, as if it were executed 
 by the agent personally. Thus, if an agent, without authority, should sign 
 a Note in the name of another, it has been held, that he may be sued there- 
 on, as if it were his own Note. Dusenbury v. Ellis, 3 John. Cas. 70 ; Story 
 on Agency, § 251, note; Palmer v. Stevens, 1 Denio, 471 ; Bay v. Cook, 
 2 N. Jersey, 343. But see contra in New York, Walker v. The Bank, 
 13 Barb. 639. See also White v. Skinner, 13 John. 307; Meech v. Smith, 
 7 Wend. 315 ; Cunningham v. Soules, 7 Wend. 106 ; Stetson v. Patten, 2 
 Greenl. 358 ; Chitty on Contr. 211. See also Woodes v. Dennett, 9 N. H. 
 55 ; Grafton Bank v. Flanders, 4 N. H. 23; Mayhew v. Prince,. 11 Mass. 
 54 ; 2 Kent, Lect. 41, pp. 631, 632 (5th edit.) ; Clay v. Oakley, 17 Martin, 
 138 ; Perkins v. Washington Ins. Co., 4 Cowen, 649 ; Feeter v. Heath, 11 
 Wend. 477 ; White v. Skinner, 13 John. 307; Harper v. Little, 2 Greenl. 
 14; Lazarus v. Shearer, 2 Ala. 718, N. S. However, if an agent, in pur- 
 chasing goods, should exceed his authority, he may be properly treated as 
 the purchaser, since no other person would be liable. Hampton v. Speck- 
 en'agle, 9 S. & R. 212 ; Story on Agency, § 264 a. 
 
 ] « Chitty on Bills, pp. 67-69 (8th edit. 1833); Id. p. 186; Story on 
 Partnership, §§ 102, 128, 134, 136. 
 
80 PROMISSORY NOTES. [CHAP. H. 
 
 and bind it accordingly, unless, upon the face of the Note, or 
 upon collateral proof, it is clearly established, that the party 
 taking it had full notice that the Note was drawn or in- 
 dorsed for purposes and objects not within the partnership 
 business.^ And this seems equally true in the law of France 
 and of Scotland.^ 
 
 § 73. There is occasionally some nicety in the application 
 of the general doctrine, as to what are to be deemed partner- 
 ship Notes. Thus, a Promissory Note, beginning with the 
 words, " I promise to pay," but signed in the name of the 
 firm, as, for example, " A, B, & Co.," or " B, for A, B, & Co.," 
 will be a good Note to bind the partnership.^ But suppose 
 the partnership business is carried on in the name of one 
 member only of the firm, or his name is the name of the firm 
 also, the question may arise, when, and under what circum- 
 stances, a Promissory Note, made or indorsed in the name of 
 such member, will bind the firm, and when it will be deemed 
 the separate Note of that member only. If the Note or in- 
 
 ' Story on Partnership, §§ 126-132. But see Tanner v. Hall, 1 Barr. 
 417 ; Headley v. Bainbridge, 3 Queen's Bench, 316. 
 
 * Story on Partnership, § 129; Pothier on Oblig. n. 83 ; Pothier, De So- 
 cidt^, n. 101 ; 2 Bell, Comm. B. 7, p. 616 (5th edit.) ; Story on Bills of 
 Exchange, § 78; Leroy v. Johnson, 2 Peters, 186; Furze v. Sharwood, 2 
 Gale & Dav. 116 ; Hawken v. Bourne, 8 Mees. & Wels. 710 ; Kirk v. Blur- 
 ton, 9 Mees. & Wels. 284; Faith v. Richmond, 11 A. & El. 339; United 
 States Bank v. Binney, 5 Mason, 176 ; Winship v. Bank of United States, 
 5 Peters, 529; Etheridge v. Binney, 9 Pick. 272; Story on Partnership, 
 §§■ 101, 109, 126, 132; Smith v. Lusher, 5 Cowen, 688 ; Drake v. Elwyn, 1 
 Caines, 184; Crumpston v. McNair, 1 Wend. 457; Matheson's Adminis- 
 trator V. Grant's Administrator, 2 How. 263, 264, 283. And a Note signed 
 by the partners in their individual names will bind the firm, especially if 
 given for a partnership transaction. Maynard v. Fellows, 43 N. H. 255. 
 But if the several members of a firm sign a Note in their individual names, 
 one as principal, and the others as sureties, together with another person as 
 surety, such other person will be liable for contribution to the other sure- 
 ties, because the form of the Note is notice to him that it is not a partner- 
 ship transaction. Bain v. Wilson, 10 Ohio St. 14. 
 
 * Bayley on Bills, ch. 2, § 6, pp. 53, 54 (5th edit.) ; Mason v. Eumsey, 
 1 Camp. 384; Galway v. Matthew, 1 Camp. 403; S. C. 10 East, 264; 
 Wilks V. Back, 2 East, 142. 
 
CHAP. II.] CAPACITY OF PARTIES. 81 
 
 dorsement is made in the course of the partnership busi- 
 ness, or for a partnership transaction, or upon the faith that 
 it is for account of the partnership business, it will bind the 
 firm ; otherwise, it will be treated as the separate Note only 
 of. the member who signs or indorses it.^ The same rule 
 will apply to a Note, where two trades are carried on in the 
 same place, or in different places by the same persons, in the 
 same firm name ;^ or, by two firms, carrying on business in the 
 same place, or in different places, under the same firm name, 
 where the partners in each firm are partly the same and 
 partly difierent persons.^ In each case the Note will bind 
 the firm on whose account, or business, or the faith thereof, 
 the Note has been taken. Of course, this rule will apply 
 only to persons who receive the Note as bona fide holders, 
 without any knowledge that there is in the making or in- 
 dorsing of the Note any fraud, or misconduct, or excess of 
 authority by the partner who signs or indorses it.* 
 
 § 74. As to corporations, according to 'the old law, they 
 could, generally (for there always were some admitted excep- 
 tions), contract only under their corporate seal. But tl^e 
 rule has been gradually relaxed, and the exceptions enlarged, 
 until, in our day, it may be taken to be a firmly established 
 rule in America, and admitted, to a great;extent, in England, 
 that corporations may contract and bind themselves by con- 
 
 ' Bayley on Bills, ch. 2, § 6, pp. 53 - 56 (5tli edit.) ; South Carolina Bank 
 V. Case, 8 B. & C. 427 ; Furze v. Sharwood, 2 A. & El. (N. S.) 388, 418, 
 427; Vere v. Ashby, 10 B. & C. 288; Etheridge v. Binney, 9 Pick. 272; 
 Ex parte Bolitho, 1 Buck, Bank. 100; Thicknesse v. Bromilow, 2 Cr. & 
 Jer. 425 ; United States Bank v. Binney, 5 Mason, 176 ; S. C. 5 Peters, 
 529 ; Manuf. and Mechanics' Bank v. Winship, 5 Pick. 11. 
 
 " Bayley on Bills, ch. 2, § 6, p. 55 (5th edit.) ; Swan v. Steele, 7 East, 
 210. 
 
 » Ibid. 
 
 ' Bayley on Bills, ch. 2, § 7, pp. 55 - 57 (5th edit.) ; Galway v. Matthew, 
 10 East, 264; Ridley v. Taylor, 13 East, 175; Shirreff v. Wilks, 1 East, 
 48; Green v. Deakin, 2 Stark. 348; Woodward v. Winship, 12 Pick. 430; 
 Wintle V. Crowther, 1 Cr. & Jer. 316; Bank of Rochester u. Bowen, 1 
 Wend. 158 ; Boyd v. Plumb, 7 Wend. 309. 
 6" 
 
82 PROMISSORY NOTES. [CHAP. II. 
 
 tracts not under seal, made through the instrumentality of 
 their agents, and within the proper scope of the objects and 
 purposes of their charter.^ But the question is more nice, 
 as to the right of a corporation to become makers or indors- 
 ers of Promissory Notes, or to become parties to any other 
 negotiable paper. That an express authority is not indispen- 
 sable to confer such a right is admitted.^ It is sufficient if 
 it be implied, as a usual and appropriate means to accomplish 
 the objects and purposes of the charter.^ Corporations are 
 expressly mentioned in the Statute of 3 & 4 Anne, ch. 9, re- 
 specting Promissory Notes, as persons, who may make and 
 indorse negotiable Notes, and to whom such Notes may be 
 made payable. But where drawing or indorsing such Notes 
 is obviously foreign to the purposes of the charter, or repug- 
 nant thereto, there the act becomes a nullity, and not binding 
 upon the corporation.* 
 
 ' Bank of Columbia v. Patterson's Admin., 7 Cranch, 299 ; Bank of the 
 United States v. DancR-idge, 12 Wheat. 64, 67- 75 ; Beverley v. The Lin- 
 coln Gas-Light & Coke Company, 6 A. & EI. 829 ; Church v. The Impe- 
 rial Gas-Light & Coke Company, 6 A. & El. 846; Story on Agency, 
 §§ 16, 52, 53 ; Kyd on Bills, p. 32 (3d edit.) ; Arnold v. The Mayor, &c. 
 of Poole, 4 Mann. & Grang. 860; Fishmongers' Company v. Robertson, 5 
 Mann. & Grang. 131. Upon this point it does not seem necessary here to 
 cite the authorities at large. M^^ny of them will be found collected in 
 Story on Agency, §§ 52, 53; and Bayley on Bills, ch. 2, § 6, pp. 53-68 
 (5th edit. 1830) ; Chitty on Bills, ch. 2, pp. 45 - 72. 
 
 ' Chitty on Bills, pp. 17-21 (8th edit. 1833); Bayley on Bills, ch. 2, 
 § 7, pp. 69, 70 (5th edit. 1830) ; Aspinwall v. Meyer, 2 Sandford, 180. 
 
 ' See Broughton v. The Manchester Water Works Company, 3 B. 8: 
 Aid. 1, 7-11; Munn v. Commission Company, 15 John. 44; Barker v. 
 Mechanics' Ins. Co., 3 Wend. 94. 
 
 * Broughton v. Manchester Water Works Company, 3 B. & Aid. 1-12; 
 Halstead v. Mayor of New York, 5 Barb. 218 ; Attorney-General v. Life & 
 Fire Ins. Co., 9 Paige, 477 ; Furniss v. Gilchrist, 1 Sandford, 57 ; Chitty on 
 Bills, p. 17 (8th edit. 1833). Heineccius, speaking upon the subject of 
 partnerships (Sdcietates), probably meant to include what we should call 
 quasi corporations, or joint^stock companies, also. Ha says: "Itaque ne 
 societates quidem, tamquam personse morales, negotiationem coUybisticam 
 exercere prohibentur. Immo, illam exercent quotidie, quamvis alicubi 
 le^bus cautum sit, ut omnes et singuli socii nomina sua separatim subscri- 
 bers cogantur." Heinecc. de Camb. cap. 5, § 15, p. 49 (edit. 1769). In 
 
CHAP. 11.] CAPACITY OF PARTIES. 83 
 
 § 75. Having adyerted to these preliminary considerations, 
 applicable to persons who are sui juris, and capable of becom- 
 ing parties to Promissory Notes, let us now briefly inquire as 
 to those persons who are incompetent or disabled to become 
 such parties, and as to the nature and extent and operation 
 of tha.t incompetency and disability. These may, at least in 
 our law, be reduced to four classes. (1.) First, infants or 
 minors. (2.) Secondly, married women. (-3.) Thirdly, 
 alien enemies. (4.) And fourthly, persons insane, inbecile, 
 or non compotes mentis.^ 
 
 § 76. There are, indeed, other persons, who are prohibited, 
 by the local law of particular countries, from engaging in 
 trade or commerce ; such as ecclesiastical persons, or clergy- 
 men.2 But then this is understood to be engaging in trade 
 or commerce for a livelihood, or for profit. But the prohibi- 
 tion would not seem to extend to Promissory Notes given by 
 an ecclesiastic in the course of his own pursuits, as, for ex- 
 aniple, to pay his debts, or to improve his estate ; but solely 
 to cases of secular employments of a purely secular charac- 
 ter, animo lucri, as, for example, by becoming a merchant, 
 or banker, or broker, or making, or discounting, or indorsing 
 Promissory Notes, for purposes of profit.^ Persons professed 
 in religion, such as monks and friars, are, or at least were, 
 by the Common Law, disabled to contract, for they were 
 deemed dead in the law (jciviliter mortui').^ So, by the laws 
 
 the foreign law, at least, in some countries, partnerships, using the name of 
 the firm, may sue and be sued in that firm name. See Story on Partn. 
 § 221, note (1) ; Id. § 235, note (5). See also 2 Bell, Comm. B. 7, pp. 
 619, 620 (5th edit.) ; Story on Bills, § 79 ; Murray v. East India Company, 
 5 B. & Aid. 204. 
 
 ' Many of the doctrines and illustrations applicable to these disabilities 
 are directly taken from the text of Story on Bills of Exchange, §§ 81 - 106, 
 as containing a full and correct statement of the law on the subject. 
 
 ' Hall V. Franklin, 3 M. & W. 259. 
 
 ' See Story on Bills, §§ 82, 83, and the authorities there cited; Pothier, 
 De Change, n. 27; Heinecc. de Camb. ch. 5, §§ 2, 8, 14, 17; Chitty on 
 Bills, ch. 2, p. 16 (8th edit.) ; Com. Dig. Capacity, B. 1, D. 1. 
 
 * Com. Dig. Capacity, B. 1, D. 1 ; Hall v. Franklin, 3 M. & W. 259. 
 
84 PROMISSORY NOTES. [CHAP. U. 
 
 of some States, persons under guardianship, as spendthrifts 
 or prodigals, or on account of habitual drunkenness, are 
 deemed incapable of contracting.^ But these and other spe- 
 cial disabilities of a similar kind may be passed over, as 
 scarcely within the scope of a work like the present, which 
 deals with more general disabilities. 
 
 § 77. In the first place, then, as to minors, or persons 
 under twenty-one years of age, who are by our law signifi- 
 cantly called infants. Contracts made by infants are either, 
 first, void, or secondly, voidable, or thirdly, valid.^ They are 
 
 ^ See Revised Statutes of Massachusetts, ch. 79, § 13; Story on Bills, 
 § 88; Pothier on Oblig. n. 50-52; Buckley v. Cannon, 4 Rich. 136. In 
 Story on Bills, §§ 88, 89, it is said : " Within the like predicament, as mi- 
 nors, persons fall, who, by the foreign or civil law, are interdicted and ren- 
 dered incapable of contracting by reason of prodigality ; for, although such 
 persons know what they do, yet their consent is not deemed valid ; and 
 they are treated as persons not sui juris, and as having no reasonable dis- 
 cretion. In some of the American States (as we have seen), a similar rule 
 prevails, as to persons who are put under guardianship, by reason of their 
 being addicted to habitual drunkenness ; and while that guardianship con- 
 tinues, they are incapable of making any valid contract so as absolutely to 
 bind themselves thereby. But although persons who are interdicted by the 
 foreign and civil law from managing their affairs, by reason of prodigality, 
 are thus incapable of binding themselves by a contract, yet they are not 
 absolutely incapable of contracting; for they may, like minors, by con- 
 tracting without the authority of 'their tutor, curator, or guardian, oblige 
 others to them, although not oblige themselves to others. And this is, 
 accordingly, laid down in the Institutes and Digest. " Namque placuit me- 
 liorem conditionem licere eis facere, etiam sine tutoris auctoritate. Is, cui 
 bonis interdictum est, stipulando sibi acquirit." The reason is, that the 
 power of tutors, curators, and guardians is established in favor of minors 
 and interdicted persons, and their assistance is necessary only for the inter- 
 est of the persons under their charge, and from the apprehension of their 
 being deceived; and, consequently, such assistance becomes superfluous, 
 when, in fact, they make their condition better." 
 
 ' Story on Bills, § 84 ; Keane v. Boycott, 2 H. Black. 511,'514, 515 ; 
 Com. Dig. Enfant, B. 3, 5, 6, C. 1 to 4 ; Id. C. 9 ; Holmes v. Blogg, 8 
 Taunt. 35 ; Id. 508 ; Wood v. Fenwick, 10 M. & W. 195 ; Baker v. Lov- 
 ett, 6 Mass. 78, 80 ; Vent v. Osgood, 19 Pick. 572 ; 1 Black. Comm. 463- 
 467; Tucker v. Moreland, 10 Peters, 58 ; Fonda !i. Van Home, 15.Wend. 
 631. » 
 
CHAP. II.] CAPACITY OF PARTIES. 85 
 
 [said to be ^] void, when they are clearly not for the' benefit 
 of the infant, as, for example, a bond made with a penalty by 
 an infant.^ They are voidable, when they are or may be for 
 his benefit, according to circumstances, as, for example, a 
 lease of his lands rendering rent.^ They are valid, wlien 
 they are made for a consideration, and upon an occasion, 
 which the law sanctions and approves ; as, for example, for 
 necessaries for himself and his family (if he have one) suit- 
 able to his rank and degree.* 
 
 § 78. By our law, an infant has not a capacity absolutely 
 to bind himself by a Promissory Note, as maker, or indorser, 
 in the course of trade ; for he is not at liberty to engage in 
 trade.° Nor would a Promissory Note given by him for 
 necessaries be absolutely binding upon liim, when it is nego- 
 tiable ; or even (as it should seem) if not negotiable, since 
 he cannot bind himself to pay even for necessaries any 
 specific sum.^ Tlie ground of this doctrine seems to be, that 
 in cases of negotiable-Notes, the infant, if bound at all to the 
 indorsee, must be bound for the entire sum stated in the 
 
 Note ; ^ and if the instrument be not negotiable, it is against 
 
 » 
 
 ' But see Conroe w. Birdsall, 1 Jolin. Cas. 127; Bingham on Infancy, 
 Bennett's edition,'arid notes. 
 
 ^ Ibid. ; Hunter v. Aguew, 1 Fox & Smith, 15 ; Baylis & Dineley, 3 M. 
 & S. 477 ; Fisher v. Mowbray, 8 East, 330 ; Com. 'Dig. Enfant, C. 1 ; Oli- 
 ver n. Houdlet, 13 Mass. 237 ; Vent v. Osgood, 19 Pick. 572. 
 
 ' Ibid. ; Com. Dig. Enfant, B. 3, C. 3 ; Whitney v. Dutch, 14 Mass. 457, 
 462; Stone v. Dennison, 13 Pick. 1 ; Eeed «. Batchelder, 1 Met. 559; 
 Wood V. Fenwick, 10 M. & W. 195. 
 
 * Ibid. ; Com. Dig. Enfant, C. 5 ; Burghart v. Hall, 4 M. & W. 727. 
 
 ' Story on Bills, § 84, and authorities there cited ; Chitty on Bills, ch. 2, 
 pp. 21, 22 (8th edit.) ; Vanwinkle v. Ketchum, 3 Caines, 323 ; Bayley on 
 Bills, ch. 2, § 2, pp. 44, 45 (5th edit.) ; Warwick v. Bruce, 2 M. & Selw. 
 205, 209 ; Latt v. Booth, 3 Carr. & Kirw. 292 ; Goode v. Harrison, 5 B. & 
 Aid. 147. But see Kundel V. Keeler, 7 Watts, 237. 
 
 ° [But in some States the payee might sue on such Note and recover the 
 fair value of the necessaries. Earle v. Keed, 10 Met. 387 ; Dubose v. Whed- 
 don, 4 McCord, 221. But see Henderson v. Fox, 5 Ind. 489 ; Haine v. 
 Tarrant, 2 Hill, S. 0^400.] 
 
 ' Story on Bills, § 84, and authorities there cited ; Gibbs v. Merrill, 3 
 
86 PEOMISSOEY NOTES. [CHAP. II. 
 
 the policy of the law to bind him to pay any fixed certain 
 sum, where the nature of the contract ought to leave open 
 the whole inquiry as to the suflSciency of the consideration.^ 
 But, whether a Promissory Note given by an infant, either 
 negotiable or not, is void, or is only voidable, is a matter 
 upon which the authorities present no inconsiderable diver- 
 sity of opinion.^ The weight of the modern authorities 
 seems, however, greatly to preponderate in favor of holding 
 Promissory Notes, given or indorsed by an infant, voidable 
 only, and therefore capable of being ratified after the party 
 comes of age.^ 
 
 § 79. But although an infant cannot bind himself abso- 
 lutely as the maker of a Promissory Note, there is no doubt 
 that he may be the 'payee thereof, since it cannot but be for 
 
 Taunt. 307 ; Swasey v. Vanderheyden, 10 John. 33 ; Williamson v. Watts, 
 
 1 Camp. 552 ; Jones v. Darch, 4 Price, 300 ; Trueman v. Hurst, 1 Term, 
 40 ; Chitty on Bills, ch. 2, pp. 21, 22, and note (edit. 1833). But see 
 Com. Dig. Enfant, B. 5 ; Bayley on Bills, ch. 2, § 1, pp. 44, 45 (5th edit.) ; 
 
 2 Kent, Leot. 31, p. 235 (5th edit.) ; Eversou «. Carpenter, 17 Wend. 419. 
 ' Chitty on Bills, ch. 2, pp. 21, 22, and note (8th edit.) ; Swasey v. Adm'r 
 
 of Vanderheyden, 10 John. 33 ; Stone v. Dennison, 13 Pick. 1. But see 
 Keed v. Batchelder, 1 Met. 559; Goodsell v. Myers, 3 Wend. 479. 
 
 ' See the cases cited in 2 Kent, Lect. 31, p. 235, note ; Story on Bills, 
 § 84. Mr. Chancellor Kent, in summing up the doctrine, says : " It is held, 
 that a negotiable Note, given by an infant, even for necessaries, is void ; 
 and his acceptance of a Bill of Exchange is void ; and his contract as secu- 
 rity for another is absolutely void ; and a bond, with a penalty, though 
 given for necessaries, is void. It must be admitted, however, that the ten- 
 dency of the modern decisions is in favor of the reasonableness and policy 
 of a very liberal extension of the rule, that the acts and contracts of infants 
 should be deemed voidable only, and subject to their election when they 
 become of age, either to affirm or disallow them. If their contracts were 
 absolutely void, it would follow as a consequence, that the contract could 
 have no effect, and the party contracting with the infant would be equally 
 discharged." 
 
 ' Bayley on Bills, ch. 2, § 2, pp. 45, 46 (5th edit.) ; Chitty on Bills, ch. 
 2, p. 23 (8th edit.) ; Story on Bills, § 84 ; 2 Kent, Lect. 31, pp. 235, 236 
 (5th edit.) ; Gibbs v. Merrill, 3 Taunt. 307 ; Hunt v. Massey, 5 B. & A. 
 902 ; Harris v. Wall, 1 Exch. 122 ; Everson v. Carpenter, 17 Wend. 419 ; 
 Bay V. Gunn, 1 Denio, 108 ; Armfield v. Tate, 7 Ired. 258 ; Tafl v. Ser- 
 geant, 18 Barb. 320 ; Sloeum v. Hooker, 13 Barb. 536. 
 
CHAP. II.] CAPACITY OF PARTIES. 87 
 
 his benefit, if the consideration therefor does not move from 
 himself, but from some third person ; or if it be for a debt 
 justly due to himself, as for labor and services.^ However, 
 it is quite a dififerent question, whether an infant can person- 
 ally receive payment of such a Note, made payable to him- 
 self or order, or whether it be payable to his guardian only. 
 The latter would seem to be the true rule.'^ 
 
 § 80. Another inquiry naturally arising under this head 
 is, what is the effect of an indorsement made by an infant, 
 who is the payee or indorsee of a Note ? It has been already 
 suggested^ that he cannot charge himself personally with 
 any liability in virtue of any such indorsement ; and it is 
 very clear that every such indorsement is voidable by him.* 
 But a more important point is, whether the person, who takes 
 by the indorsement under him, acquires thereby any title to 
 the Note against any of the antecedent parties thereto ; in 
 other words, whether the transfer by the infant is operative 
 in favor of the indorsee, so that the latter may receive or en- 
 force payment thereof from any of the antecedent parties, 
 and give a good discharge therefor. It seems now well set- 
 
 ' Story on Bills, § 85 ; Chitty on Bills, ch. 2, p. 24 (8th edit.) ; Kyd on 
 Bills, ch. 2, p. 30 (3d edit.) ; Bayley on Bills, ch. 2, § 2, p. 46 (5th edit.) ; 
 Nightingale v. Withington, 15 Mass. 272 ; Holliday v. Atkinson, 5 B. & C. 
 501. 
 
 ' Bayley on Bills, ch. 2, § 2, p. 46, n. 7 (5th edit.). Mr. Bayley says : 
 " See Pothier, pi. 166, who observes, that payment to an infant will be no 
 discharge of the debtor, unless it appear that the payment were beneficial 
 to the infant ; if the money were applied to his advantage, the payment 
 will be good ; if not, as where the infant squanders it, the party paying will 
 not be discharged. So money lent to an infant for necessaries, if duly ap- 
 plied, may in equity be recovered from him. Marlow v. Pitfield, 1 P. Will. 
 558. Though it is otherwise at law. 1 Salk. 279, 386. But if an execu- 
 tor pay a legacy to an infant, which the infant's father obtains and dissi- 
 pates, the executor will be answerable to the infant. Phillips v. Paget, 
 2 Atk. 80. See also Pothier on Oblig. Pt. 3, ch. 1, art. 2, § 1, pi. 504, 
 and § 2." 
 
 ' Ante, § 78. 
 
 ' Bayley on Bills, ch. 2, §§ 1, 2, pp. 44, 45, 46 (5th edit.) ; Chitty on 
 Bills, ch. 2, pp. 22, 23 (8th edit.) ; Story on Bills, § 85. 
 
88 PEOMISSOEY NOTES. [CHAP. H. 
 
 tied, that the indorsee, by such transfer and indorsement, 
 acquires a good and valid title to the Note against every 
 other party thereto, except the infant, since it is not a void, 
 but a voidable, title only.^ The infant may indeed avoid it, 
 and intercept the payment to the indorsee, or, by giving 
 notice to the antecedent parties of his avoidance, furnish to 
 them a valid defence against the claim of the indorsee. But, 
 until he does so avoid it, the indorsement is to be deemed, 
 in respect to such antecedent parties, as a good and valid 
 transfer .2 [And the maker of a Note payable to the order 
 of another is estopped from denying the capacity or au- 
 thority of that person to indorse such Note.^] 
 
 § 81. In some respects the foreign law differs from ours, 
 as to the disabilities of persons who are minors or infants. 
 Minors are not, by the foreign law, positively incapable of 
 making contracts, provided the contracts are beneficial to 
 them. But all contracts made by them are liable to be 
 rescinded ; and the minors are entitled to be reinstated in 
 their original rights, if their contracts are injurious to them.* 
 Contracts by way of Bills of Exchange and Promissory Notes 
 are generally deemed injurious to them. And .hence it 
 should seem that minors incur no absolute responsibility, 
 and are incapable of binding themselves, either as makers or 
 indorsers of Promissory Notes, or as drawers, or drawees, or 
 indorsers of Bills of Exchange. But, in favor of commerce, 
 inasmuch as minors are permitted to engage in it, an excep- 
 tion is made of minors who are merchants ; and they may 
 become parties to, and bind themselves by. Bills of Exchange 
 
 ' Ibid. 
 
 ' Ibid.; Grey t>. Cooper, 3 Doug. 65; Taylor «. Croker, 4 Esp. 187; 
 Jones V. Daroh, 4 Price, 300 ; Nightingale v. Withington, 15 Mass. 272. 
 See Drayton v. Dale, 2 B. & Cr. 293, 299 ; Pitt v. Chappelow, 8 M. & W. 
 616; Burrill v. Smith, 7 Pick. 291. 
 
 ' Halifax v. Lyle, 3 Exch. 446. See also Braithwaite v. Gardiner, 8 
 A. & El. (N. S.) 473. And see Smith v. Marsack, 6 C. B. 486. Although 
 the maker may thereby be in danger of paying the Note twice. 
 
 * Pothier on Oblig..n. 52. 
 
CHAP, n.] CAPACITY OF PARTIES. 89 
 
 and Promissory Notes, in their business and character as 
 merchants. Thus, Heineccius says : " Contra, non obscurum 
 est, rigori dambiali locum non esse adversus impuberes, et 
 minorennes ; illorum enim cambia plane nullius momenti 
 sunt ; his vero Isesis competit beneficium restitutionis in in- 
 tegrum. Excepti tamen sunt minorennes, qui mercaturam 
 exercent, quippe, qui in rebus ad mercaturam pertinentibus 
 ne jure quidem communi in integrum restituuntur." ^ 
 
 § 82. The same rule, with similar exceptions, has prevailed 
 In Prance from a very early period. It is expressly recog- 
 nized in the Ordinance of 1673 (tit. 1, art. 6) ; ^ and it has 
 been since incorporated into the modern Codes of Prance.^ 
 The Civil Code declares, that minors are incapable of con- 
 tracting ; but that they cannot, on account of their incapaci- 
 ty, impeach their contracts, except in cases provided for by 
 law ; and among these cases are those wliere the contract is 
 to their injury.* But, under, certain limitations, minors are 
 permitted to engage in commerce ; and when they are so en- 
 gaged, their contracts, made in the course of their business, 
 bind them.^ And, in an especial manner. Promissory Notes 
 and Bills of Exchange drawn, indorsed, or accepted by them, 
 in their commercial negotiations, will be obligatory upon 
 them.^ But Promissory Notes and Bills of Exchange drawn, 
 indorsed, or accepted by minors, who are not merchants or 
 bankers, are, by the Code of Commerce, declared to be void 
 in respect to them ; and therefore the remedial justice there- 
 
 ' Heinecc. de Camb. cap. 5, §§ 3, 4, 6 ; Story on Bills of Exchange, 
 §86. 
 
 ^ Jousse, Sur L'Ord. 1673, tit. 1, art. 6, p. 10 (edit. 1802) ; Pothier, De 
 Change, n. 28; Pothier on Oblig. n. 49, 52. 
 
 ' Civil Code of France, art. 1124, 1125, 1312 ; Code of Comm. art. 114 ; 
 Pothier, De Change, n. 28 ; Loore, Esprit de Comm. Tom. 1, Liv. 1, tit. 8, 
 art. 114, p. 356. 
 
 * Code Civil of France, art. 1124, 1125, 1312; Id. art. 483 -487 ; Par- 
 dessus, Droit Comm. Tom. 1, art. 56 - 62. 
 
 ' Code Civil of France, art. 487 ; Pardessns, Droit Comm. Tom. 1, art 
 56-62. 
 
 ' Ibid. 
 
90 PROMISSORY NOTES. [CHAP. H. 
 
 on is not now confined to cases wliere the contract, created 
 by tlie Bill or Note, is injurious to them. There is a positive 
 and absolute prohibition of their binding obligation in all 
 cases.^ This prohibition, however, does not extend beyond 
 the protection of the minor himself ; and therefore the Bill 
 or Note will bind all the other parties to it, not only in favor 
 of the minor, but also in respect to each other .^ 
 
 § 83. Within the like predicament as minors, persons fall, 
 who, by the foreign or civil law, are interdicted, and ren- 
 dered incapable of contracting, by reason of prodigality ; for, 
 although such persons know what they do, yet their consent 
 is not deemed valid ; and they are treated as persons not sui 
 juris, and as having no reasonable discretion.^ In some of 
 the American States (as we have seen) a similar rule pre- 
 vails, as to persons who are put under guardianship, by rea- 
 son of their being addicted to habitual drunkenness ; and 
 while that guardianship continuas, they are incapable of mak- 
 ing any valid contract, so as absolutely to bind themselves 
 thereby.* 
 
 § 84. But, although persons who are interdicted by the 
 foreign and civil law* from managing their affairs, by rea- 
 son of prodigality, are thus incapable of binding them- 
 selves by a contract, yet they are not absolutely incapable of 
 Contracting ; for they may, like minors, by contracting with- 
 out the authority of their tutor, curator, or guardian, oblige 
 others to them, although not oblige themselves to others. 
 And this is, accordingly, laid down in the Institutes and Di- 
 gest. "Namque placuit meliorem conditionem licere eis 
 facere, etiam sine tutoris auctoritate.® Is, cui bonis interdic- 
 
 ' Code de Comm. art. 112; Locrd, Esprit de Comm. Tom. 1, Liv. 1, tit. 
 8, § 1, art. Hi, pp. 356 - 360 ; Pardessus, Droit Comm. Tom. 1, art. 56 - 62. 
 
 ' Locr^, Esprit de Comm. Tom. 1, Liv. 1, tit. 8, § 1, art. 112, p. 360. 
 Pothier on Oblig. n. 52 ; Story on Bills of Exchange, § 87. 
 
 ' Pothier on Oblig. n. 50 - 52. 
 ^ ♦ Ante, § 76, note ; Story on Bills of Exchange, § 88 | Jenners v. How- 
 ard, 6 Blackf. 240. 
 
 ' Inst. Lib. 1, tit. 21 
 
GHAP. n.] CAPACITY OP PARTIES. 91 
 
 turn est, stipulando sibi acquirit." ^ The reason is, that the 
 power of tutors, curators, and guardians is established in 
 favor of minors and interdicted persons, and their assistance 
 is necessary only for the interest of the persons under their 
 charge, and from the apprehension of their being deceived ; 
 and consequently such assistance becomes superfluous, when, 
 in fact, they make their condition better.^ 
 
 § 85. Secondly, as to married women. By the law of 
 England and America, a married woman is incapable, in any 
 case, of becoming a party to a Bill of Exchange, so as to 
 charge herself with any obligation whatsoever, ordinarily 
 arising therefrom.^ This results from her general disability 
 to enter into any contract under the Common Law ; for, dur- 
 ing the marriage, her very being, or legal existence, as a dis- 
 tinct person, is suspended, or, at least, is incorporated and 
 consolidated into that of her husband.* There are certain 
 exceptions, recognized by Courts of Equity, and by the cus- 
 tom of London, which it is unnecessary to advert to, since 
 they have no manner of application to the ordinary doctrines 
 respecting Promissory Notes.^ It will, generally, make no dif- 
 ference, as to this disability of a married woman, at the Com- 
 
 ' Dig. Lib. 45, tit. 1, 1. 6 ; an<e,'§ 76, note. 
 
 ' Ibid. ; Pothier on Oblig. n. 52 ; Story on Bills of Exchange, § 89. 
 
 ' Bayley on Bills, eh. 2, § 3, pp. 47, 48 (5th edit. 1830) ; Chitty on Bills, 
 eh. 2, p. 24 (8th edit. 1833) ; Id. ch. 6, p. 225 ; Edwards v. Davis, 16 John. 
 281 ; Com. Dig. Baron §• Feme, Q. 
 
 * Black. Comm. 442; 2 Story on Eq. Jurisp. § 1367; Bayley on Bills, 
 ch. 2, § 3, pp. 47, 48 (5th edit. 1830) ; Caudell v. Shaw, 4 Term, 361 ; Co. 
 Litt. 132 6, 133 a ; Com. Dig. Baron §• Feme, D. Q. 
 
 1 * See 2 Story on Eq. Jurisp. §§ 1367-1403 ; Chitty on Bills, ch. 2, § 1, 
 pp. 24, 25 (8th edit. 1833) ; Caudell v. Shaw, 4 Term, 361 ; Beard v. Webb, 
 
 2 Bos. & Pull. 93 ; Stuart v. Lord Kirkwall, 3 Madd. 387. In equity, a 
 married woman may contract with reference to her own property, secured 
 to her separate use ; and therefore she may accept a Bill of Exchange ; 
 and the same may become payable out of her separate property, although 
 she cannot otherwise bind herself, personally, for the debt. Stuart v. Lord 
 Kirkwall, 3 Madd. 387 ; 2 Story on Eq. Jurisp. § 1397 ; Francis v. Wigswell, 
 1 Madd. 258; Aylett v. Ashton, 1 My. & Cr. 105, 111; Owens u. Dicken- 
 son, 1 Cr. & Ph. 48 ; Gardner v. Gardner, 22 Wend. 526. 
 
92" PEOMISSOEY NOTES. [CHAP. H. 
 
 mon L&'w, to bind herself by any obligation, as a party to a 
 Promissory Note, that she is, at the time, living separate and 
 apart from her husband ; ^ or, that she has a separate main- 
 tenance secured to her ; ^ [or, that she represented herself a 
 single woman ; 3] or, that she has eloped, and is living noto- 
 riously in a state of adultery ; * or, even that she is sep- 
 arated from her husband by a decree of divorce, a mensd et 
 thoro ; for nothing but a divorce, a vinculo matrimonii, will 
 restore her ability.^ 
 
 1 Marshall v. Eutton, 8 Term, 545 ; Bayley on Bills, ch. 2, § 3, p. 48 (5tli 
 edit. 1830) ; Chitty on Bills, ch. 2, § 1, pp. 24, 25 (8th edit. 1833) ; Hatch- 
 ett V. Baddely, 2 W. Black. 1079 ; Lean v. Schutz, 2 W. Black. 1195, 1196 ;. 
 Hyde v. Price, 3 Ves. Jr. 443 ; Chouteau v. Merry, 3 Mo. 182. 
 
 ' Ibid. 
 
 ' Cannam v. Farmer, 3 Exch. 698. 
 
 ' Supra, n. 1. 
 
 ' Ibid. ; Co. Litt. 133 a ; Lewis v. Lee, 3 B. & C. 291 ; Faithorne v. 
 Blaquire, 6 M. & S. 73. In Massachusetts, a different rule prevails; for 
 there, under the statutes allowing a divorce, a mensa et tJioro, it has been 
 held, that, although after a decree of such a divorce, the husband's right to 
 reduce into possession choses in action which belonged to his wife during 
 the coverture, and prior to the divorce, remains ; yet, after such divorce, 
 she is to be treated as a feme sole, in respect to property subsequently ac- 
 quired on debts contracted by her. Dean v. Richmond, 5 Pick. 461. Upon 
 that occasion it was admitted that the statute did not directly apply to the 
 case. But Mr. Chief Justice Parker, in delivering the opinion of the 
 Court, said : " But the question, which alone affects the present action, in 
 regard to the capacity of the plaintiff to sue, appears not to have been set- 
 tled, and that is, the effect of a divorce, a mensa et thoro. Such a divorce 
 does not dissolve the marriage, though it separates the parties, and estab- 
 lishes separate interests between them. By our statute, the wife, after such, 
 a divorce, is not only free from the control of the husband, but all her in- 
 terest in real estate is restored to her ; alimony is allowed her out of the 
 estate of her husband ; and she is left to procure her own maintenance by 
 her own labor, where the husband is unable to afford any alimony ; which 
 is the case in most instances of divorce of this nature. In addition to these 
 burdens, she frequently has to support young children, without any means 
 but her own industry. Shall she not maintain an action, even against her 
 husband for alimony, which, though able, he may refuse to pay ? May she 
 not sue those who trespass upon her lands, or (he tenants who may withhold 
 the rent, or for the earnings of her labor, or the specific articles of prop- 
 erty she may have purchased with the savings of her alimony, her rents, 
 
CHAP. II.] CAPACITY OF PARTIES. 93 
 
 § 86. There are, indeed, some exceptions to the general 
 rule, created by the Common Law, which stand upon peculiar 
 
 or the rewards of her labor ? If not, the law, instead of protecting her 
 from the oppression and abuse of power of the husband, has merely re- 
 leased him from an inconvenient connection, reserving to him the right to 
 deprive her of all comfort and support. If she must join him in any action, 
 he may release it ; he may receive her rents, and discharge her tenants ; he 
 may seize all her necessary articles of furniture and appropriate them to 
 himself; and he may intercept the little fruits of her industry which are 
 absolutely necessary for her support. If the Common Law allows all this, 
 and there is no relief, except by application to a Court of Equity, the Com- 
 mon Law is, indeed, most impotent ; and where there is no Court of Equity, 
 as there is not with us to these purposes, the system is most iniquitous. 
 But it is not so. The Commoxi Law only prohibits actions by women who 
 have husbands alive, whose rights are not impaired by law, but by compact 
 between them ; the law recognizes no authority to make such compacts. 
 Where the law itself has separated them and established separate interests 
 and separate property, it acknowledges no such absurdity as to continue the 
 power of the husband over everything but the person of the wife. No case 
 appears in the English books ; and -without doubt, because the interests of 
 the wife, so situated, may be taken care of in Chancery. In Bac. Abr. 
 Baron §• Feme, M., the editor, in the margin, puts the qucere, whether 
 a woman, divorced a mensd et tJioro, may not be sued without her husband; 
 which is enough to show, that, until his time, there had been no decision to 
 the contrary ; and I do not find that there has been any since. In a re- 
 cently published book, which, I trust, from the eminence of its author, and 
 the merits of the work, will soon become of common reference in our 
 Courts (Kent's Com. vol. 2, p. 136), the learned author, after tracing the 
 English authorities upon the subject of liability of married women, living 
 separate, and having a maintenance, says : ' I should apprehend, that the 
 wife could sue and be sued, without her husband, when the separation be- 
 tween the husband and wife was by the act of the law ; and that takes 
 place not only in the case of a'divorce, amensa et thoro, but also in the case 
 "of imprisonment of the husband, as a punishment for crimes. Such a sep- 
 aration may, in this respect, be equivalent to transportation for a limited 
 time ; and the sentence which suspended the marital power suspends the 
 disability of the wife to act for herself, because she cannot have the author- 
 ity of her husband, and is necessarily deprived of his protection.' So far 
 as this opinion relates to the case of divorce, we fully concur with him, and 
 are satisfied that, although the marriage is not, to all purposes, dissolved by 
 a divorce, a mensa et thoro, it is so far suspended, that the wife may main- 
 tain her rights by suit, whether for injuries done to her person or property, 
 or in regard to contracts, express or implied, arising after the divorce, and 
 
94 PROMISSORY NOTES. [CHAP. U. 
 
 grounds, and are quite consistent with its application to or- 
 dinary cases. Tlius, for example, if the husband has ab- 
 jured the realm ; or if he is deemed, in contemplation of law, 
 to be civilly (although not naturally) dead ; as, if he is, by 
 a judicial sentence, or otherwise, banished,^ or transported 
 for life, or for a term of years ; or if he has, by a religious 
 profession, renounced civil life, [or has voluntarily and en- 
 tirely abandoned his wife,^] the disability of the wife is sus- 
 pended during that period, and her capacity to contract is 
 restored.^ So, a married woman resident in any country, 
 whose husband is an alien and never has been in that coun- 
 try, has been held to be restored to the like capacity;* and, 
 a fortiori, the rule will apply, if he is an alien enemy .^ 
 
 § 87. With these exceptions, and others, which stand or 
 may stand upon analogous grounds, the general rule pre- 
 
 that she shall not be obliged to join her husband in such suit ; and, to the 
 same extent, she is liable to be sued alone, she being, to all legal intents, a 
 feme sole, in regard to subjects of this nature. Such, however, is not the 
 law of England, it having been recently decided, that coverture is a good 
 plea, notwithstanding a divorce, a mensd et thoro. Lewis v.. Lee, 3 B. 
 & C. 291. But the difference in the administration of their law of di- 
 vorce and ours, and the power of the Court of Chancery there to protect 
 the suffering party, will sufficiently account for the seeming rigor of their 
 Common Law on this subject. If the husband is not liable for the debts 
 of the wife, after a divorce, a mensd, the chief reason for denying her the 
 right to sue alone fails." 5 Pick. 465-467. See also Pierce w. Burnham, 
 4 Met. 303. 
 
 ' See Wright v. Wright, 2 Dess. 244. 
 
 ' Rhea w. Khenner, 1 Peters, 105 ; Gregory v. Pierce, 4 Met. 478. 
 
 ' Hatchett v. Baddeley, 2 W. Black. 1079 ; Marshall v. Button, 8 Term, 
 545 ; Bayley on Bills, ch. 2, § 3, pp. 47, 48 (5th edit. 1830) ; Chitty on 
 Bills, ch. 2, §- 1, pp. 24, 25 (8th edit. 1833) ; Bayley on Bills, ch. 2, § 3, 
 p. 47 (5th edit.) ; Sparrow v. Carruthers, cited 1 Term, 6 ; Co. Litt. 133 a, 
 and Harg. note, 3; Story on Partn. § 10 ; Carrol v. Blencow, 4 Esp. 27; 
 Newsome v. Bowyer, 3 P. Will. 37. 
 
 * Kay V. Duchess de Pienne, 3 Camp. 123 ; Gregory v. Paul, 15 Mass. 31. 
 See De Gaillon v. L'Aigle, 1 Bos. & Pijll. 357 ; Abbott v. Bayley, 6 Pick. 
 89; Robinson v. Reynolds, 1 Aik. 174. See Barden v. Keverberg, 2 M. 
 & W. 61. 
 
 ' Derry v. Duchess of Mazarine, 1 Ld. Raym. 147. 
 
CHAP, n.] CAPACITY OF PARTIES. 95 
 
 vails, that married ■women cannot bind themselves, personal- 
 ly, by contracts, to third persons ; and, consequently, they 
 cannot bind themselves, as parties to any Promissory Note, 
 either as makers, or as indorsers. [Their contracts are not 
 only voidable, but absolutely void, and are not made valid by 
 a ratification after coverture ceases.^] But it by no means 
 follows, that other parties may not be bound to them by and 
 under such instruments, and that they may not, sub modo, 
 possess or pass a title thereto, which shall be effectual be- 
 tween other persons and parties. They may certainly act as 
 agents of third persons, in drawing and indorsing Promissory 
 Notes ; ^ and they may bind their own husbands, as makers 
 or indorsfers, if they act by their express authority, or with 
 their implied consent and approbation. Thus, for example, 
 the wife may draw or indorse a Promissory Note in the name 
 of her husband, [or even in her own name,^] with his ex- 
 press or implied consent,* [which must be clearly proved ; ^ 
 it being in all cases a question for the jury.^] On the other 
 hand, if a Note be made payable, or indorsed, to a married 
 woman, or her order, whose husband is under no civil inca- 
 pacity, it becomes immediately, by operation of law, payable 
 to the husband or his order ; '^ and he may, at his election, 
 
 ' Van Steenburgh v. Hoffman, 15 Barb. 28 ; Eastwood v. Kenyon, 11 
 A. & El. 438 ; Littlefield v. Shee, 2 B. & Ad. 811 ; Howe v. Wildea, 34 
 Maine, 566 ; "Vance v. Wells, 6 Ala. 737 ; Gouldingw. Davidson, 28 Barb. 
 438. 
 
 ^ Story on Agency, § 7, and the authorities there cited. 
 
 = Lindus v. Brodwell, 5 M., G. 8e 8., 583. Hancock Bank v. Joy, 41 
 Maine, 568. 
 
 * Bayley on Bills, ch. 2, § 3, pp. 48, 49 (5th edit. 1830) ; Smith v. Ped- 
 ley, cited Ibid. 
 
 ' Leeds v. Vail, 15 Penn. St. 185 ; Reakert v. Sanford, 5 W. & Ser. 
 164. 
 
 • Lord B. Hall, 8 M., G. & S. 627. 
 
 ' Bayley on Bills, ch. 2, § 3, pp. 48, 49 (5th edit. 1830) ; Arnold v. Re- 
 Toult, 1 Brod. & Bing. 443 ; Philliskirk v. Pluckwell, 2 M. & S. 393 ; Dra- 
 per V. Jackson, 16 Mass. 480; Commonwealth v. Manley, 12 Pick. 173; 
 Russell V. Brooks, 7 Pick. 65 ; Richards v. Richards, 2 B. & Ad. 447. 
 
96 PROMISSORY NOTES. [CHAP. U. 
 
 indorse it, or negotiate it, or sue upon it, in his own name : ^ 
 or, he may sue upon it in the joint names o*f himself and his 
 wfe ; 2 or, he may allow her to indorse, or negotiate it in her 
 own name.^ And in this last case, it may be declared upon, 
 either as indorsed by her husband, or in her own name with 
 his consent, ; and thus a good title may be acquired by the 
 indorsee against the husband, as well as against the other 
 parties to the Note.* 
 
 § 88. Promissory Notes, drawn or indorsed by the wife be- 
 fore marriage, are binding upon her after the marriage, and 
 both the husband and wife may be sued therefor by the 
 holder. Promissory Notes, made before marriage, [or dur- 
 ing marriage,^] and payable to the wife or her order, become, 
 like other choses in action, the property of the husband, if he 
 reduces them into possession during the coverture.^ But, if 
 they are not so reduced into possession, and the wife survives- 
 him, she will be entitled to them, in right of her survivor- 
 ship.'^ On the other hand, if he survives her, and they are 
 not reduced into possession before her death, then her per- 
 
 1 Ibid. ; Burrough v. Moss, 10 B. & C. 558 ; Mason v. Morgan, 2 A. & El. 
 SO. 
 
 ' Ibid. ; Richards u. Richards, 2 B. & Ad. 447. 
 
 ' Stevens v. Beals, 10 Cush. 291 ; George v. Cutting, 46 N. H. 130. 
 
 ' Bayley on Bills, ch. 2, § 3, pp. 47, 48 (5th edit. 1830) ; Chitty on Bills, 
 ch. 2, § 1, pp. 25 - 27 (8th edit. 1833) ; Id. ch. 6, p, 225 ; Barlow v. Bishop, 
 1 East, 432 ; Cotes v. Davis, 1 Camp. 485 ; Prestwick v. Marshall, 4 C. & 
 P. 594 ; S. C. 7 Bing. 565 ; Burrough v. Moss, 10 B. & C. 558 ; Mason v. 
 Morgan, 2 A. & El. 30 ; Smith v. Marsack, 6 C. B. 486. 
 . * Scarpellini v. Atcheson, 7 A. & El. (N. S.) 864 ; Howard v. Oakes, 3 
 Exch. 136 ; Hart v. Stevens, 6 Queen's Bench, 937. 
 
 " Richards v. Richards, 2 B. & Ad. 447; Co. Litt. 351 6; Garforth v. 
 Bradley, 2 Ves. 675; Betts v. Kimpton, 2 B. & Ad. 273 ; Com. Dig. Baron 
 Ij- Feme, E. 3 ; McNeilage v. HoUoway, 1 B. & Aid. 218 ; Legg v. Legg, 8 
 Mass. 99; Howes v. Bigelow, 13 Mass. 384; Dean </. Richmond, 5 Pick. 
 461 ; Chitty on Bills, ch. 6, p. 225 (8th edit. 1833) ; Id. ch. 2, § 1, pp. 26, 
 27. 
 
 ' Ibid. ; Com. Dig. Baron §• Feme, F. 1, 2 ; Draper v. Jackson, 16 Mass. 
 480; Stanwood u. Stanwood, 17 Mass. 67; Rogers v. Bumpass, 4 Ired. 
 Eq. 385 ; Sayre v. Flourney, 3 Geo. 541 ; Killcrease v. Killcrease, 7 How. 
 (Miss.) 311. , 
 
CHAP. IL] capacity OF PARTIES. 97 
 
 sonal representatives will be entitled to sue for them ; but the 
 husband will be entitled to the proceeds, when recovered, in 
 right of his survivorship.^ The same doctrine will apply 
 throughout as to Promissory Notes, and other choses in ac- 
 tion, made and given to the wife after the coverture, with 
 this distinction, applicable to such Notes and other choses in 
 action, after the coverture, that the husband does not, by 
 some overt act, such as bringing an action in his own name, 
 or indorsing or assigning them, which are deemed equivalent 
 to reducing them into possession,^ elect to hold them exclu- 
 sively for his own use, and thus disagree to the interest of his 
 wife therein.^ [They would, however, pass to his assignees 
 
 ' Betts V. Kimpton, 2 B. & Ad. 273 ; Co. Litt. 361 a, and Mr. Butler's 
 note ; Cart ».' Rees, cited 1 F. Will. 381 ; Allen v. Wilkins, 3 Allen, 321. 
 
 ' [But the mere receipt of interest on the wife's chose in action is not a 
 reduction to possession. Hart v. Stevens, 6 Queen's Bench, 937.] 
 
 ' Richards v. Richards, 2 B. & Ad. 447 ; Gjrforth v. Bradley, 2 Ves. 
 675 ; Dean v. Richmond, 5 Pick. 461 ; Gaters v. Madeley, 6 M. & W. 423 ; 
 Chitty on Bills, eh. 6, p. 225 (8th edit. 1833) ; Id. ch. 2, § 1, pp. 26, 27. 
 In McNeilage v. HoUoway, 1 B. & Al. 218, it was held, that where a Bill 
 of Exchange was made payable to a feme sole or her order, before mar- 
 riage, and she intermarried before the Note became due, her husband might 
 sue thereon in his own name, without joining his wife, although the latter had 
 not indorsed the Bill. Upon that occasion, Mr. Justice Bayley said : " This 
 being a negotiable security, the right of action shifts with the possession. 
 Chattels personal vest absolutely in the husband by marriage. Choses in ac- 
 tion do not ; for, in order to reduce them into possession, it is necessary to 
 join the wife. The case of a negotiable security is a middle case ; whoever 
 has the instrument in his possession, and the legal right to it, may sue upon 
 it in his own name. It differs, in this respect, from a bond, and other se- 
 curities not negotiable. By assigning a bond, a right of suing only in the 
 name of the obligee is conferred. The Bill is payable to the wife, and the 
 effect of the marriage is not to destroy the negotiability of the instrument. 
 In whom, tlien, will the power of indorsing vest ? Certainly not in the 
 wife, for her power to do so is superseded by the marriage ; then it must be 
 in the husband. It may be said that he pould not indorse to himself; per- 
 haps not ; because in that case there would be no transfer ; but that must 
 be on the ground of his having the entire interest in the Bill without in- 
 dorsement. We break in upon no principle, therefore, by saying, that this 
 is a species of property, in the possession of the wife, at the time of the mar- 
 riage, which, by the act of marriage itself, vested in the husband." But this 
 7 * 
 
98 PROMISSORY NOTES. [CHAP. H. 
 
 in bankruptcy, although not then reduced to possession by 
 the husband.^] 
 
 [§ 88 a. The Legislatures of many of the United States have 
 materially changed the Common Law in relation to the rights, 
 
 decision is open to much observation ; and, indeed, it is plain, from'the sub- 
 sequent ease of Kichards v. Richards, 2 B. & Ad. 447, 453, that the Court 
 were not entirely satisfied with that Cetse as an authority. It may, indeed, 
 as to the point, that a Bill is a personal chattel, and not a chose in action, 
 be deemed entirely overruled by the late case of Gaters v. Madeley, 6 M. 
 & W. 423, where Mr. Baron Parke said : " A Promissory Note is not a 
 personal chattel in possession, but a chose in action of a peculiar nature ; 
 but which has, indeed, been made by statute, assignable and transferable, 
 according to the custom of merchants, like a Bill of Exchange ; yet still it 
 is a chose in action, and nothing more. When a chose in action, such as a 
 Bond or Note, is given to a feme covert, the husband may elect to let his 
 wife have the benefit of it, or, if he thinks proper, he may take it himself; 
 and if in this case the husband had, in his lifetime, brought an action upon 
 this Note, in his own name, that would have amounted to an election to 
 take it himself, and to an expression of dissent, on his part, to his wife's 
 having any interest in it. On the other hand, he may, if he pleases, leave 
 it as it is, and in that case the remedy on it survives to the wife, or he may, 
 according to the decision in Philliskirk v. Pluckwell, adopt another course, 
 and join her name with his own ; and in that case, if he should die after 
 judgment, the wife would be entitled to the benefit of the Note, as the judg- 
 ment would survive to her. The only doubt in this case arose from the 
 •observation of Lord EUeuborough, in McNeilage v. Holloway, that a Prom- 
 issory Note may be treated as a personal chattel in possession. Now, in 
 that respect I think there was a mistake, and an incorrect expression used; 
 but it was unnecessary for his lordship to lay down such a doctrine, in or- 
 der to decide the case then before him. lu fact, the decision in the subse- 
 quent case of Kichards v. Kichards has qualified that position. In that 
 case, the Court of King's Bench said, that a Promissory Note was, in the 
 ordinary course of things, a chose in action, and that there was nothing to 
 take it out of the common rule that choses in action, given to the wife, sur- 
 vive to her after the death of her husband, unless he has reduced them into 
 possession. The case of Nash v. Nash is also an authority in favor of the 
 position, that it survives to the wiffe ; and, although that case was decided 
 before McNeilage v. HoUoway, it does not appear to have been cited in the 
 latter case. I am of opinion that the Note must be considered as having 
 survived to the wife, and her executor was, therefore, the proper person to 
 sue." See also Com. Dig. Baron §• Feme, V. W. X.; Morse v. Earle, 13 
 Wend. 271. 
 ' [Davis V. Newton, 6 Met. 537 ; Smith v. Chandler, 3 Gray, 392.] 
 
CHAP. II.] CAPACITY OF PARTIES. 99 
 
 powers, and liabilities of married women. In many of the 
 States a married woman may take and hold property sepa- 
 rate from her husband, and free from his control and that 
 of his creditors; and a married woman may bargain, sell, 
 and conrey her separate property, enter into contracts in 
 reference to the same, carry on any trade or business, and 
 perform any labor or service on her sole and separate 
 account, and sue and be saied in all matters having relation 
 to her separate property, business, trade, services, labor, and 
 earnings, in the same manner as if she were sole.^ It has 
 been held under these statutes, that the property must tjome 
 to the married woman in the manner pointed out by the 
 statutes, and that the husband cannot convey property directly 
 to his wife, or indorse a Note to her.^ In accordance with 
 these statutes a married woman may make contracts and sign 
 Notes, and render herself personally liable if the Note is made 
 in reference to her sole and separate property or business.* 
 But if the contract or Note has no relation to the wife's sepa- 
 rate property or business, her liability remains as at Common 
 Law, and she is not bound by her signature to the Note ; * 
 
 • Mass. Gen. Stat. ch. 108, §§1-3. 
 
 ° Gay V. Kinsley, 11 Allen, 345 ; Turner v. Nye, 7 Allen, 176 ; Lord v. 
 Parker, 3 Allen, 129 ; Edwards v. Stevens, lb. 315 ; Ingham v. White, 4 
 Allen, 412; Eider w. Hulse, 33 Barb. 264; Walker v. Reamy, 36 Penn. 
 St. 410; Winter v. Walter, 37 Penn. St. 155; Gillespie v. Miller, lb. 
 247; McCubbin v. Patterson, 16 Md. 179 ; George v. Ransom, 14 Cal. 
 658; Miller u. Blackburn, 34 Ind. 62; Moore v. Somerindyke, 1 Hilton, 
 199; Auble v. Mason, 35 Penn. St. 261. But in Maine, a husband may 
 indorse a Note directly to his wife, or make a deed or sale of projjprty to 
 her; Motley v. Sawyer, 38 Maine, 68. 
 
 ' Ames V. Foster, 3 Allen, 541 ; Chapman v. Foster, 6 Allen, 136 ; Stew- 
 art V. Jenkins, lb. 300 ; Parker v. Eane, 4 Allen, 346 ; Marshall v. Miller, 
 3 Met. (Ky.) 333 ; Brook v. Wigginton, 14 La. An. 676 ; Caldwell v. Saw- 
 yer, 30 Ala. 283 ; Case v. Sempl'e, 13 lo. 596 ; Plumer v. Lord, 5 Allen, 
 460. 
 
 * Sherman v. Conney, 44 N. H. 592 ; Harrington v. Thompson, 9 Gray, 
 65 ; Yale v. Dederer, 22 N. Y. 450 ; Palen v. Lent, 5 Bosw. 713 ; Parke 
 ti. Kleeber, 37 Penn. St. 251 ; Koontz v. Nabb, 16 Md. 547,549; Kuox 
 u. Jordan, 5 Jones Eq. (N. C.) 175; Parker v. Simonds, 1 Allen, 258; 
 
100 PEOMISSORY NOTES. [CHAP. n. 
 
 and the burden of proof is upon the party alleging her lia- 
 bility, i] 
 
 § 8>9. We have already had occasion to state, that women 
 are, generally, by the French law, disabled from binding 
 themselves to absolute obligations, as makers or indorsers of 
 Promissory Notes, or as drawers, indorsers, or acceptors of 
 Bills of Exchange, unless they are regular merchants, and 
 carry on trade as such.^ And this disability equally applies, 
 whether they are married or unmarried, whether they are 
 maidens or widows. A married woman, therefore, who is 
 not a regular merchant, is equally within the interdiction, 
 whether she is authorized by her husband to do the act or 
 not ; ^ for this interdiction is designed for her protection and 
 safety against the ordinary and summary remedies against 
 the person and the property which Bills of Exchange or 
 Promissory Notes generally carry with them under the 
 French law.* 
 
 § 90. We are not, however, to understand (as has been 
 already suggested) from this statement, that, if an unmarried 
 woman, or a married woman, with the authority and consent 
 of her husband, not being a merchant, should sign, or indorse, 
 or accept a Bill of Exchange or Promissory Note,. it would, 
 by the French law, be an absolute nullity. But we are only 
 to understand, that it will be reduced to the case of a simple 
 promise on her part, which, in that law, imports, or may im- 
 port, very different rights, remedies, and obligations.^ For 
 unmarried women and married women, with the consent of 
 
 Felton*!). Reid, 7 Jones, Law (N. C), 269 ; Owen v. Cawley, 36 Barb. 52; 
 Lee V. Cameron, 14 La. An. 805 ; Luning v. Brady, 10 Cal. 265 ; Yale v. 
 Dederer, 18 N. Y. 265 ; Lord v. Parker, 3 Allen, 127 ; Bowies' v. Turner, 
 15 La. An. 352. 
 
 > Tracy v. Keith, 11 Allen, 214. 
 
 " Ante, § 60 ; Story on Bills, § 73 ; Locrd, Esprit du Code de Comm. 
 Tom. ], tit. 8, § 1, art. 113, pp. 351-355 ; Code de Com. art. 113. 
 
 ' Ibid. 
 
 * Ibid. But see Pothier, De Change, n. 28 ; Sautayra, Code de Comm. 
 art. 113, pp. 78, 79. 
 
 ' Story on Bills, § 73, note. 
 
CHAP. II.] CAPACITY OF PARTIES. 101 
 
 their husbands, may enter, under ordinary circumstances, 
 into a valid contract. The interdiction only applies to pre- 
 vent women, whether married or unmarried, from incurring 
 the ordinary I'esponsibilities of drawers, indorsers, or accept- 
 ors, and from being subjected to the ordinary remedies to 
 enforce the rights of the holder against persons in that pre- 
 dicament. But this interdiction does not render a married 
 woman incompetent to make Promissory Notes, or to draw, 
 indorse, or accept Bills of Exchange, in the name of her hus- 
 band, with his authority and consent ; for then she is not 
 personally bound, as such a Bill, or Note, is treated as his 
 personal contract, through the instrumentality of his agent.^ 
 § 91. But married women, who, with the consent of their 
 husbands, carry on trade separately, as regular merchants, 
 may bind themselves as parties to Promissory Notes and 
 Bills of Exchange, in the course of tliseir business ; but, as 
 they cannot so engage in business without such consent, it 
 follows that they cannot contract any valid engagements, 
 even as merchants, where the consent of the husband is 
 withheld, or he interdicts the engagement in trade.^ But, 
 although a Bill of Exchange, or Promissory Note, drawn 
 under the circumstances above stated, may not be binding 
 personally upon the woman herself, either as & drawer or 
 indorser or acceptor, yet, as between the other parties to it, 
 it may be of full force and obligation. Thus, if a Bill be 
 drawn or indorsed by a woman, under circumstances of inter- 
 diction, still, if accepted, it may be binding between the in- 
 dorsee, or other holder, and the acceptor.^ And, in like 
 manner, a Promissory Note drawn or indorsed by a woman 
 under interdiction will be binding between the other par- 
 ties thereto. 
 
 ' Locr^, Esprit du Code de Comm. Tom. 1, tit. 8, § 1, art. 113, p. .S54 ; 
 Pothier, De Change, u. 28. 
 
 ^ Pardessus, Droit Comm. Tom. 1, art. 63, pp. 311, 312 ; Codede Comm. 
 art. 45 ; ^ Code Civil of France, art. 220 ; Merlin, Repert. Letire et Billet 
 de Change, § 3, art. 6, pp. 194, 195 (edit. 1827). 
 
 ' Locre, Esprit du Code de Comm. Tom. 1, tit. 8, § 1, art. 113, p. 355. 
 
102 PROMISSORY NOTES. [CHAP. 11. 
 
 § 92. There seems to be another diiference between our 
 law and that of Prance, in respect to married women, and 
 that is, that as married women, by the French law, are 
 incapable of contracting with other persons, without the con- 
 sent and authority of their husbands, they cannot oblige 
 other persons thereby to them, any more than they can 
 oblige themselves to other persons ; for they cannot, without 
 the authority and consent of their husbands, contract in any 
 manner, whether the contract be for their detriment or for 
 their benefit.^ And therefore a Bill of Exchange, or Prom- 
 issory Note, made payable to them, would not be obligatory 
 in their favor ; in which respect the case diflfers from that 
 of minors and prodigals under the French law.^ But, in our 
 law, such a Bill or Note would clearly be good in favor of 
 the husband, who might adopt the act, and sue upon the Bill 
 or Note in his own name.^ 
 
 § 93. Heineccius informs us, that in the territories of 
 Brunswick women are not allowed to deal in Bills of Ex- 
 change ; and in the other German provinces they are bound 
 only when they exercise the business of merchandise.* But 
 if authority is granted to women to carry on the business of 
 money-brokerage, regularly, they are not at liberty to engage 
 in exchange, unless under the guidance of a curator, or other 
 administrator. And there is no doubt whatsoever, that, if a 
 woman enters into a contract of exchange for other persons, 
 the contract is invalid.^ Even when a woman is a merchant, 
 she is not bound as a party, except to Bills of Exchange, 
 drawn in the course of her business, as such ; which, how- 
 ever, will be presumed, unless the contrary is shown.® The 
 same rule would apply to Promissory Notes made or indorsed 
 by women, under the like circumstances.'' 
 
 ' Pothier on Oblig. n. 52. 
 
 " Ibid. 
 
 ' Story on Bills of Exchange, §§ 86 - 89. 
 
 • Heinnec. de Jure Camb. cap. 5, §§ 5 - 7. 
 
 ' Ibid. » Ibid. 
 
 ' Story on Bills of Exchange, §§ 90 - 98. * 
 
CHAP, n.] CAPACITY OF PARTIES. 103 
 
 § 94. Thirdly, as to alien enemies. The doctrine is now 
 very clearly established, that a state of war between two coun- 
 tries interposes an absolute interruption and interdiction of 
 all commercial correspondence, intercourse, and dealing 
 between the subjects or citizens of the two countries.^ It 
 would be utterly incompatible with all the known rights ai*i 
 duties of the parties, to suffer individuals to carry on friendly 
 and commercial intercourse with each other, while the gov- 
 ernments to which they respectively 'belonged were in open 
 hostility with each other ; or, in other words, that the subjects 
 or citizens should be at peace, while the nations were at war.^ 
 Upon this ground, the rule is now generally, if not univer- 
 sally, recognized, that all contracts made between the sub- 
 jects or citizens of different countries, which are at war with 
 each other, are utterly void ; or, as the rule is often briefly 
 expressed, contracts made with an enemy are void.^ They 
 are not merely voidable ; but they are, ab origine, void and 
 incapable of being enforced or confirmed.* In this respect 
 they differ essentially from contracts made between the sub- 
 jects of different countries in a time of peace ; for a subse- 
 quent war between the countries does not avoid or extinguish 
 those contracts ; but only suspends the right to enforce them 
 in the belligerent countries, by reason of the personal disa- 
 bility of alien enemies to sue or be sued. As soor^, however, 
 
 1 1 Kent, Lect. 3, pp. 66-69 (5tli edit.) ; Potts v. Bell, 8 Term, 548; 
 Willison V. Patteson, 7 Taunt. 439 ; The Indian Chief, 3 C. Rob. 22 ; The 
 Jonge Pieter, 4 Rob. 79 ; The Franklin, 6 Rob. 127 ; The Venus, 4 Rob. 
 355 ; The Carolina, 6 Rob. 336 ; Griswold v. Waddington, 15 John. 57 ; 
 S. C. 16 John. 438; The Rapid, 8 Cranch, 155; The Julia, 8 Cranch, 
 181 ; Soholefield v. Eichelberger, 7 Peters, 586 ; Ex parte Boussmaker, 13 
 Ves. 71; Antoine u. Morshead, 6 Taunt. 237. The masterly judgment of 
 Mr. Chancellor Kent, in the Court of Errors, in the ease of Griswold v. 
 Waddington, 16 John. 438, examines, and exhausts the whole learning upon 
 the subject. There cannot, perhaps, be found, in the judicial annals of our 
 country, any ease, in which the resources of a great mind, acting upon the 
 most comprehensive researches, have been more eminently or successfully 
 displayed. 
 
 ' Ibid. ' Ibid. ' Ibid. 
 
104 PROMISSORY NOTES. [CHAP. H. 
 
 as peace is restored, the right revives, and these contracts 
 retain or reacquire all their original obligation, and may be 
 enforced in the judicial tribunals of either country, as the 
 parties then possess what is technically called a persona 
 standi in judicio?- 
 
 § 95. Hence, an alien enemy c&nnoi, flagrante bello, draw 
 a Bill upon a subject belonging to the adverse country, or 
 indorse a Bill to such a subject, or accept a Bill drawn 
 by such a subject; for,' in each case, as between the alien 
 enemies, the contract is treated as utterly void, and founded 
 in illegal communication, intercourse, or trade.^ The same 
 rule applies to the purchase of Bills drawn on the enemy's 
 country, and the remittance or deposit of funds there, and 
 the buying or selling of Exchange there.^ The same rule 
 applies also to Promissory Notes made or indorsed to, or by, 
 an alien enemy. 
 
 § 96. But certain exceptions have been allowed, either as 
 compatible with the principles, or as resulting from the very 
 necessities and accidents, of war itself. Thus, a Bill of Ex- 
 change, or Promissory Note, drawn or negotiated in favor of 
 any person, competent to sue, would, doubtless, be upheld, 
 if it was given for the ransom of a captured ship ; for such a 
 ransom is upheld by the Law of Nations, as a sacred and in- 
 violable contract, and, if not prohibited by some statute, 
 would be deemed in a Court of Admiralty, acting under the 
 Law of Nations, as entitled to be enforced.* So, if a person 
 who is prisoner of war should draw or indorse a Bill, drawn 
 
 > 1 Kent, Lect 3, pp. 67-69 (5t]i edit.); Griswold v. Waddington, 15 
 John. 57; S. C. 16 John. 438; Potts v. Bell, 8 Term, 548; Willison v. 
 Patteson, 7 Taunt. 439 ; Scholefield v. Eichelberger, 7 Peters, 586 ; An- 
 toine V. Morshead, 6 Taunt. 237 ; Flindt v. Waters, 15 East, 266 ; Ex parte 
 Boussmaker, 13 Ves. 71. 
 
 " Ibid. ' Ibid. 
 
 * See Cornu v. Blackburne, 2 IJoug. 641 ; Anthon v. Fisher, 2 Doug. 
 649, note; Yates u. Hall, 1 Term, 73; Maisonnaire v. Keating, 2 Gall. 325; 
 Ricord v. Bettenham, 3 Burr. 1734; Brandon v. Nesbitt, 6 Term, 23 ; Puf- 
 fendorf, De .[ure Nat. et Gent. Lib. 8, ch. 7, § 14, and Barbeyrac's note; 
 Vattel, B. 3, ch. 16, § 264. 
 
CHAP, n.] CAPACITY OF PARTIES. 105 
 
 upon a fellow-subject, resident in his own country, or should 
 make or indorse a Promissory Note, that Bill or Note, wheth- 
 er made payable to an alien enemy, or indorsed to him, will 
 be held valid, if it be made or indorsed to the alien enemy 
 for the purpose of obtaining necessaries and subsistence for 
 the prisoner.^ The ground of this exception must be, that 
 it is in furtherance of the ordinary duty of every nation, 
 not to suifer its own subjects to be deprived of the means 
 of support and maintenance, by the strict application of 
 principles intended to guard against other public mis- 
 chiefs ; and that the . allowance of such Bills or Notes for 
 such objects can have no tendency to promote the interests 
 of the enemy, or to foster any illegal or injurious commerce 
 with the enemy. 
 
 § 97. Another exception may fairly be deemed to exist in 
 cases of cartel ships, where Bills or Notes are drawn and ne- 
 gotiated in the enemy's country for purposes connected with 
 the objects of the Voyage ; such as for necessary repairs, pro- 
 visions, and other supplies. This class of laws may be pre- 
 .sumed to stand upon the general ground of an implied license 
 from both governments ; and it does not differ, in its princi- 
 ples, from another class of cases, where there is an express 
 license for the trade with the enemy, which exempts the par- 
 ty and the transactions from the taint of illegality, at least so 
 far as concerns his own country, where the contract is to be 
 enforced.^ 
 
 § 98. But there is no necessary incompatibility of duties, 
 or obligations, arising from a state of war, to prevent a sub- 
 ject of a neutral country, being in the enemy's country, from 
 making or indorsing a Promissory Note, or from there draw- 
 ing, or indorsing, or accepting a Bill of Exchange, in favor 
 of one of his fellow-subjects, or of another neutral ; for in 
 
 ' See Antoine v. Morshead, 6 Taunt. 237 ; Daubuz v. Morshead, 6 Taunt. 
 332. See also Duhammel v. Pickering, 2 Stark. 90 ; Bayley on Bills, eh. 
 2, § 9, pp. 75, 76 (5th edit. 1830). 
 
 * Potts V. Bell, 8 Term, 548. 
 
106 PEOMISSORY NOTES. [CHAP. H. 
 
 such a case, if the transaction is bona fide, and for neutral or 
 legal objects, there is no principle upon which it ought to be 
 held invalid.^ A state of war does not suspend the rights 
 of commerce between neutrals, or the general obligations of 
 contracts between persons, who are, in no just sense what- 
 ever, parties to the war, or acting in violation of the duties 
 growing out of it. 
 
 § 99. And here, again, the principle would seem to apply, 
 that, although a Promissory Note or a Bill of Exchange, 
 drawn, indorsed, or accepted in favor of an alien enemy, 
 may not be valid between them ; yet, as between other par- 
 ties to .the Bill or Note, it may have complete force and obli- 
 gation ; at least if they are not parties to any original in- 
 tended illegal use of it, or have not participated in such 
 illegal use. Thus, for example, if a Bill be drawn by 
 an alien enemy upon the subject or citizen of the adverse 
 country, in favor of a neutral, it will, subject to the limitation 
 above stated, be good, in favor of the neutral, against the 
 drawer, and also against the drawee, if he becomes the ac- 
 ceptor. The same doctrine will apply to an indorsement of 
 such a Bill by an alien enemy, in favoi* of a neutral, although 
 it might be invalid between the original parties, or between 
 them and the acceptor ; for there is nothing in the character 
 of the neutral which prevents him from receiving such a 
 Bill, in the course of his own negotiations, or which deprives 
 him of his ordinary character, or of his persona standi in jvr 
 dido, to enforce the obligations created thereby between him 
 and the other persons with whom he is dealing. Similar 
 considerations will apply to cases of Promissory Notes, muta- 
 tis mutandis. 
 
 § 100. It need scarcely be added, that the disability of alien 
 enemies to contract with each other during the war, is not a 
 doctrine founded in the peculiar municipal jurisprudence of 
 England and America ; but that it has its origin and confir- 
 
 ' Houriet V. Morris, 3 Camp. 303; The Hoffnung, 2 Kob. 162; The Cos- 
 mopolite, 4 Rob. 8; The Clio, 6 Kob. 67. 
 
CHAP. II.J CAPACITY OF PARTIES. lOT 
 
 mation in the Laws of Nations, and is approved by the most 
 eminent publicists, such as Grotius, and Puffendorf, and 
 Vattel, and Bynkershoek.^ The same exceptions of cases of 
 positive moral necessity, such as cases of ransom, are also 
 recognized as belonging to the general doctrine, upon the 
 ground stated by Yattel, that when, by the accidents of war, 
 a subject is placed in the hands of his enemy, so that he can 
 neither receive his own sovereign's orders, nor enjoy his pro- 
 tection, he resumes his natural rights, and is to provide for 
 his own safety by any just and honorable means. And 
 hence, he adds, if that subject has promised a sum for his 
 ransom, the sovereign, so far from having a power to dis- 
 charge him from his promise, should oblige him to perform 
 it.2 
 
 § 101. Fourthly, as to persons insane or imbecile in mind. 
 A few words will suffice upon the disability of all persons, in 
 this predicament, to bind themselves as makers, or indorsers, 
 of Promissory Notes.^ This disability flows from the most 
 obvious principles of natural justice. Every contract pre- 
 supposes that it is founded in the free and voluntary consent 
 of each of the parties, upon a valuable consideration, and 
 after a deliberate knowledge of its character and obligation. 
 Neither of these predicaments can properly belong to a luna- 
 tic, an idiot, or other person non compos mentis, from age, or 
 imbecility, or personal infirmity. Hence it is a rule, not 
 merely of municipal law, but of universal law, that the con- 
 tracts of all such persons are utterly void.* [And it has been 
 
 1 Grotius, De Jure Bell, et Pac. Lib. 3, ch. 23, § 5 ; Puffendorf, De Jure 
 Nat. et Gent. Lib. 8, ch. 7, § 14 ; Vattel, B. 3, ch. 16, § 264 ; Bynk. Ques. 
 Pub. Jur. B. 1, cl^j 3 ; Heinecc. Exerc. 30 ; De Jur. Priuc. circa Com- 
 merc. § 12, Tom. 2, Pars 2, p. 98 (edit. Geuev. 1766). 
 
 ' Vattell, B. 3, ch. 16, § 264; Griswold v. Waddington, 16 John. 451 ; 
 Story on Bills of Exchange, §§99-105. 
 
 ' See Baxter v. Lord Portsmouth, 6 B. & C 170 ; 2 Black. Comm. 291, 
 292 ; Pitt V. Smith, 3 Camp. 33, 34 ; Chitty on Bills, ch. 2, § 1, p. 21 (8th 
 edit. 1833) ; Brown v. Jodrell, 3 C. & P. 30; Sentance v. Poole, 3 C. & P- 
 1 ; Peaslee v. Bobbins, 3 Met. 164. 
 
 * Puffendorf, Law of Nat. and Nat. B. 3, ch. 6, § 3, and Barbeyrac^'s 
 
108 PROMISSORY NOTES. [CHAP. II. 
 
 held that the insanity of the payee and indorser at the time 
 of the indorsement is a good defence, even for the maker in 
 a suit by a bona fide holder.^] The Roma,n law, in expres- 
 sive terms, adopted this doctrine. " Puriosus nullum nego- 
 tium gerere potest, quia non intelligit, quod agit." ^ [This is 
 to be understood, however, of executory contracts ; for mod- 
 ern decisions fully establish that deeds, and other contracts 
 of a lunatic, fully executed, are not absolutely void, but only 
 voidable, at the option of the lunatic, or his representatives.^} 
 § 102. We may conclude this part of our subject by re- 
 marking, tliat, as by the bankruptcy of a party all his proper- 
 ty, including Bills of Exchange, Promissory Notes, and other 
 negotiable instruments and choses in action belonging to 
 him, is, under the' Bankrupt law, vested in his assignees, he 
 is no longer able to sue on the same, or to convey any per- 
 fect title thereto by indorsement or otherwise. Still, how- 
 ever, if he should indorse the same to any bona fide holder 
 without notice, he would convey a good title to such holder 
 against all the other parties to the instrument, which may be 
 enforced against such parties, unless the assignees chose to 
 interfere and oppose the claim ; * [which they might do,^] as, 
 indeed, the bankrupt himself might, with the consent of the 
 assignees, also enforce the same in his own name.^ 
 
 note; Grotius, De Jure Bell, et Pac. Lib. 2, ch. 11, §§ 4, 5 ; 1 Fonbl. Eq. 
 
 B. 1, ch. 2, § 1, and note (a) ; Id. § 3 ; 1 Story on Eq. Jurisp. § 222 ; Erk. 
 Inst. B. 3, tit. 1, § 16 ; Bell, Comm. B. 2, Pt. 2, ch. 8, p. 132 ; Id. B. 3, Ft. 
 1, ch. 1, pp. 294, 295 (5th edit.) ; Peaslee v. Bobbins, 3 Met. 164. 
 
 ' [Burke v. Allen, 9 Foster, 106.] 
 
 '^ Inst. Lib. 3, tit. 20, § 8 ; Dig. Lib. 50, tit. 17, 1. 6, 40, 124; Story on 
 Bills of Exchange, § 106. See Johnson v. Chadwell, 8 Humph. 145; 
 Beals V. See, 10 Barr, 56. 
 
 ' Arnold v. Richmond Iron Works, 1 Gray, 434 ; Molton v. Camroux, 2 
 Exch. 487; 4 Id. 19; Beaven v. McDonnell, 24 Eng. Law & Eq. 484; 9 
 Exch. 307. 
 
 * Bayley on Bills, ch. 2, §4, p. 49 (5th edit.) ; Drayton v. Dale, 2 B. & 
 
 C. 293 ; Kitchen v. Bartsch, 7 East, 53. 
 
 ' [Smith V. Chandler, 3 Gray, 392 ;] Gay v. Kinsley, ll' Allen, 346. 
 « Bayley on Bills, ch. 2, § 4, p. 49 (5th edit.) ; Drayton v. Dale, 2 B. & 
 C. 293 ; Kitchen v. Bartsch, 7 East, 53. 
 
CHAP. III.] EIGHTS AND DUTIES OF PARTIES. 10^ 
 
 CHAPTER III. 
 
 EIGHTS, DUTIES, AND OBLIGATIONS OP PARTIES TO PROMISSORY 
 
 NOTES. 
 
 § 103. Let us next pass to the consideration of the rights, 
 duties, and obligations of the respective parties to Promissory 
 Notes. These respect either the maker, the payee, the trans- 
 ferrer, the ihdorser, or the holder. We shall postpone to a 
 future page the examination of the question, what considera- 
 tion is necessary or sufficient to support a Promissory Note, 
 and between what parties and under what circumstances it 
 is either necessary, or available, or important. At present it 
 will be assumed, that the Promissory Note is not open to any 
 question of this sort, but that a sufficient consideration ex- 
 ists, and is fully established. 
 
 § 104. In the first place, then, as to the rights, duties, and 
 obligations of the maker of a Promissory Note. The rights 
 of the maker are few, and may be briefly stated. If the 
 Note was originally given for a pre-existing debt, or for a 
 present consideration, if it was received as an absolute pay- 
 ment thereof, the original consideration is extinguished, and 
 no longer is due from the maker.^ If it was received as con- 
 ditional payment only, then, if duly paid or discharged, the 
 original consideration is equally extinguished. If it is not 
 so diily paid or discharged, then the original debt or consid- 
 eration revives, although suspended in the intermediate 
 period ; and it may be enforced by an action against the 
 maker,. if he is ready to return the Promissory Note, and it 
 is not outstanding in the possession of a third person ; or a 
 suit may, at the election of the holder, be brought against 
 » Bayley on Bills, ch. 9, pp. 363-369 (5th edit). 
 
110 PROMISSORY NOTES. [OHAP. UI. 
 
 him on the Promissory Note itself.^ In general, by our law, 
 unless otherwise specially agreed, the taking of a Promissory 
 Note for a pre-existing debt, or a contemporaneous considerar 
 tion, is treated prima facie as a conditional payment only, 
 that is, as payment only if it is duly paid at maturity.^ But, 
 in some of the American States, a different rule is applied, 
 and, unless it is otherwise agreed, the taking of a [negotiable] 
 Promissory Note is deemed ^pn'ma/ocie an absolute payment 
 of the pre-existing de,bt or other consideration.^ But in each 
 case the rule is founded upon a mere presumption of the 
 supposed intention of the parties, and is open to explanation 
 and rebutter by establishing, by proper proofs, what the real 
 intention of the parties was ; and this may be established not 
 only by express words, but by reasonable implication from 
 
 ' Bayley on Bills, ch. 9, pp. 363 - 369 (5th edit.) ; Kearslake v. Morgan, 
 
 5 Term, 513 ; Dangerfield v. Wilby, 4 Esp. 159 ; Tobey v. Barber, 5 John. 
 68 ; New York State Bank v. Fletcher, 5 Wend. 85 ; Burdick v. Green, 15 
 John. 247 ; Sheehy v. Mandeville, 6 Cranch, 253, 264. 
 
 ' Bayley on Bills, ch. 9, pp. 363-369 (5th edit.) ; Puckford v. Maxwell, 
 
 6 Term, 62 ; Owenson v. Morse, 7 Term, 64 ; Bridges v. Berry, 3 Taunt. 
 130; Sheehy v. Mandeville, 6 Cranch, 253, 264; Murray v. Gouverneur, 2 
 John. Gas. 438 ; Elliot v. Sleeper, 2 N. H. 525 ; Holmes v. De Camp, 1 
 John. 34 ; Putnam v. Lewis, 8 John. 389 ; Bill v. Porter, 9 Conn. 23 ; Van 
 Cleef u. Therasson, 3 Pick. 12 ; Muldon o. Whitlock, 1 Cowen, 290; Smith 
 V. Smith, 7 Foster, 253 ; post, §§ 404, 438 ; McCrary v. Carrington, 35 Ala. 
 698 ; McMurray v. Taylor, 30 Miss. (9 Jones) 263 ; Hall v. Richardson, 16 
 Md. 396 ; Morrison v. Welty, 18 Md. 169 ; Higgins v. Wortell, 18 Cal. 
 330; Smalley v. Edey, 19 111. 207; Smith v. Owens, 21 Cal. 11 ; Brown v. 
 Cronise, lb. 386; Citizens' Bank v. Carson, 32 Miss. 191; Howard v. 
 Jones, 33 Miss.- 583; Phoenix Ins. Co. v. Allen, 11 Mich. 501 ; Devlin ». 
 Chamblin, 6 Min. 468 ; Keough v. McNitt, 6 Min. 513. 
 
 ' Bayley on Bills, by Phillips & Sewall, note (y), pp. 337-404 (edit. 
 1836) ; Hutchins v. Olcutt, 4 Verm. 549 ; Hunt v. Boyd, 2 Miller (Louis.), 
 109; Thatcher v. Dinsmore, 5 Mass. 299; Chapman v. Durant, 10 Mass. 
 49 ; Wiseman v. Lyman, 7 Mass. 286 ; Maneely v. McGee, 6 Mass. 143 ; 
 Whitcomb v. Williams, 4 Pick. 228 ; Varner v. Nobleborough, 2 Greenl. 
 121 ; Descadillas v. Harris, 8 Greenl. 298 ; Wallace v. Agry, 4 Mason, 336 ; 
 post, § 438 ; Thornton v. Williams, 14 Ind. 518; Gaskin v. Wells, 15 Ind. 
 253; Wait v. Brewster, 31 Verm. 516; Arnold v. Sprague, 34 Verm. 402; 
 Spooner v. Rowland, 4 Allen, 485. 
 
CHAP, m.] BIGHTS AND DUTIES OF PARTIES. Ill 
 
 the attendant circumstances.^ [The taking of the Note of a 
 person other than the debtor for an antecedent debt or trans- 
 action stands nearly upon the same ground. It is a matter 
 of intention and agreement between the parties, and the tak- 
 ing of such Note is not prima facie payment ; the burden is 
 on the debtor to show tlie agreement to receive it in pay- 
 ment.2 If the selectmen of a town give their Note for a liar 
 bility of the town, it will not be presumed that the creditor 
 intended to relinquish his rights against the town.^ If the 
 Notes taken in payment are invalid and voidable, the old 
 debt is not thereby paid, though the evidence of it may have 
 been given up,* and if the Notes or Bills received in payment 
 are altered and avoided, the original debt may be sued if the 
 Notes are produced for cancellation.^ If a creditor accepts 
 the Note of a third person, or a draft or bill, though not in 
 payment, he accepts the duty of doing everything necessary 
 to fix the liability of the parties to the paper.^] 
 
 § 105. It is curious to observe the coincidences of our law 
 with the Roman law upon this subject. It shows, that com- 
 mon sense, in its application to the every-day transactions of 
 human life, speaks the same language, and is regulated by the 
 same motives of convenience, and policy, and justice, in all 
 civilized countries, however wide their distance, or remote 
 
 ' Wallace u. Agry, 4 Mason, 336 ; Maneely v. McGee, 6 Mass. 143 ; 
 Watkins v. Hill, 8 Pick. 522; Curtis v. Ingham, 2 Verm. 287; Hutchins v. 
 Olcutt, 4 Verm. 549 ; Torrey v. Baxter, 13 Verm. 452 ; Melledge v. Bos- 
 ton Iron Co., 5 Cnsh. 158; Page v. Hubbard, Sprague, 335; Benneson v. 
 Thayer, 23 III. 374; Blunt v. Walker, 11 Wis. 334; Hotchin v. Secor, 8 
 Mich. 494; Settzer v. Colman, 12 Penn. St. 493 ; Graham "u. Sykes, 15 La. 
 An. 49 ; Crary v. Bowers, 20 Cal. 85 ; Kayburn v. Day, 27 111. 46. 
 
 2 Devlin v. Chamblin, 6 Min. 468 ; Higby v. New York E. E. Co., 3 
 Bosw. 497 ; Griffith v. Grogan, 12 Cal. 317 ; Eandlett v. Herren, 20 N. H. 
 102 ; Whitney v. Goin, 20 N. H. 354 ; Tyner v. Stoops, 11 Ind. 22 ; Kay- 
 bum V. Day, 27 III. 46 ; Kobinson v. Hurlburt, 34 Verm. 115 ; Ward v. 
 Howe, 38 N. H. 35 ; Dixon v. Dixon, 31 Verm. 450. 
 
 ' Kidder v. Knox, 48 Maine, 551. 
 
 * Central' Bank v. Dana, 32 Barb. 296 ; Mdrrison v. Welty, 18 Md. 169. 
 
 ' Morrison v. Welty, 18 Md. 169. 
 
 » Phoenix Ins. Co. v. Allen, 11 Mich. 501. 
 
112 PROMISSORY NOTES. [CHAP. III. 
 
 their ages from each other. Thus, we are told in the Insti- 
 tutes, that the ancient lawyers at Rome held, that a nova- 
 tion (the substitution of a new debt for an old one, thereby 
 extinguishing the former^) arose when a second contract was 
 intended to dissolve a former. But that it was always diffi- 
 cult to know with what intent the second obligation was 
 made, and, for want of such positive proof, opinions were 
 founded upon presumptions arising from the circumstances 
 of each case. This uncertainty gave rise to a positive Con- 
 stitution in the Roman law, whereby it was declared, that a 
 novation of a former contract should only take place when 
 the contracting parties had expressly agreed that they con- 
 tracted with the intent to create a novation of the former 
 contract ; and that otherwise the first contract should con- 
 tinue valid, and the second should be deemed as an accession 
 to it, so that the obligation of both contracts might remain. 
 " Sed cum hoc quidera inter veteres constabat, tunc fieri 
 novationem, cum novandi animo in secundam obligationem 
 itum fuerat ; per hoc autem dubium erat, quando novandi 
 animo videretur hoc fieri ; et quasdam de hoc prsesumptiones 
 alii in aliis casibus introducebaht : ideo nostra processit Con- 
 stitutio, quae apertissime definivit, tunc solum novationem 
 prioris obligationis fieri, quoties hoc ipsum inter contrahentes 
 expressum fuerit, quod propter novationem prioris obliga- 
 tionis convenerunt alioqui manere et pristinam obligationem, 
 et secundam ei accedere, ut maneat ex utraque causa obliga- 
 tio secundum nostrse Constitutionis definition em, quam licet 
 ex ipsius lectione apertius cognoscere." ^ So the Digest says : 
 ■ " Omnes res transire in novationem possunt, quodcunque 
 enim sive verbis contractum est, sive non verbis: novari 
 potest, et transire in verborum obligationem ex quacunque 
 obligatione ; dummodo sciamus novationem ita demum fieri, 
 si hoc agatur, ut novetur obligatio : casterum, si non hoc 
 agatur, du^ erunt obligationes." ^ 
 
 ' Pettier on Oblig. by Evans, n. 546 ; Dig. Lib. 46, tit. 2, 1. 1. 
 
 ' Just. Inst. Lib. 3, tit. 30, § 3 ; Cod. Lib. 8, tit. 42, 1. 8. 
 
 ' Dig.' Lib. 46, tit. 2, 1. 2. Upon payment the maker is entitled to the 
 
CHAP, in.] EIGHTS AND DUTIES OF PARTIES. 113 
 
 § 106. Another right, in a practical view quite as impor- 
 tant to be understood is, whetlier the maker of a Note has a 
 right to insist, when lie is called iipon to pay a Promissory 
 Note at its maturity, that the Note itself should be produced 
 and be delivered up to him.^ When the Note is not negotia- 
 ble, or, if originally negotiable, it is not indorsed, so as to be 
 negotiated, it may not, strictly speaking, be deemed a matter 
 of much consequence ; since, whoever claims the Note, must 
 claim it not only under but in the name of the payee, or his 
 personal representative ; and hence it may be supposed that 
 the defence of payment would always be a valid and compe- 
 tent defence. But we are to consider, that the proofs of the 
 payment may disappear by lapse of time, or by accident, 
 or by the death of witnesses ; and yet, if the Note be out- 
 standing, it will, prima facie, unless barred by the statute of 
 limitations, import a present subsisting debt or liability.^ It 
 is far therefore from being, even here, in many cases, a mat- 
 ter of indifference ; and there would be no hardship in a rule 
 of law which should require, even when the Note is not 
 negotiable, that it should either be given up, or a formal 
 written receipt given of its being paid, or security given as 
 an indemnity against a second payment to be required from 
 the maker.^ Such, however, is not understood to be the 
 
 Note. Stone v. Clough, 41 N. H. 290. And a negotiable certificate of de-; 
 posit is governed by the same rule. Fells Point Savings Inst. v. Weedon, 
 18 Ind. 320. 
 
 ' Chitty on Bills, eh. 9, p. 391 (8th edit.). 
 
 ' See Story on Bills of Exchange, §§ 447-449 ; post, §§ 244, 245, 290, 
 445-450. 
 
 ' 2 Story on Eq. Jurisp. § 705 ; Ex parte Greenway, 6 Ves. 812. Mr. 
 Chitty (Chitty on Bills, ch. 8, p. 456, 8th edit.) says, that on payment of a 
 Bill or Npte, it has been considered as doubtful, whether a person paying 
 can insist upon a receipt being given for the payment ; but he adds, that 
 it should seem that the party is entitled upon payment to demand a receipt. 
 For this last position he relies on the statute of 43 Geo. 3, ch. 12G, § 5. 
 Where the Bill or Note is paid by an indorser, it might be important to 
 him to have a receipt to verify the fact of payment. Ibid. ; Mendez v. 
 Carreroon, 1 Ld. Kaym. 742. But vfhere payment is made by the maker, 
 8 
 
114 PROMISSORY NOTES. [CHAP. ffl. 
 
 positive requirement of our law, when the payment of non- 
 negotiable paper is demanded ; although, if an action, of law 
 were brought to recover upon the Note, it must be produced, 
 or its absence or loss be satisfactorily accounted for.^ 
 
 § 107. But where the Promissory Note is negotiable? 
 and is payable to bearer, or, being payable to order, is in- 
 dorsed in blank, and then it is not produced or offered to be 
 delivered up to the maker upon payment thereof, there a dif- 
 ferent rule prevails, although (as we shall presently see) 
 the American authorities are not all agreed on the point ; ^ 
 
 it would seem to be sufficient that the Note is in his possession, to establish 
 the presumption that he has paid it. But this presumption, however, has 
 not been admitted in the case of the acceptor of a Bill of Exchange, from 
 his mere possession of it without further proof. Ibid. ; Pfiel v. Van Baten- 
 berg, 2 Camp. 439 ; Egg v. Barnett, 3 Esp. 196 ; Aubert v. Walsh, 4 Taunt. 
 293. In Pfiel v. Van Batenberg, 2 Camp. 439, Lord EUenborough said : 
 " Show that the Bills were once in circulation after being accepted, and I 
 will presume that they got back to the acceptor's hands by his haviug paid 
 them. But when he merely produces them, how do I know that they were 
 ever in the hands of the payee, or any indorsee, with his name upon them 
 as acceptor ? It is very possible that, when they were left for acceptance, 
 he refused to deliver them back, and having detained them ever since, now 
 produces them as evidence of a loan of money. Nor do I think the re- 
 ceipts carry the matter a bit further, unless you show them to be in the 
 handwriting of the defendant, or some other person authorized to receive 
 payment of the Bills. A man cannot be allowed to manufactura evidence 
 for himself at the risk of being convicted of forgery ; and it is possible, 
 that though the Bills are unsatisfied, these receipts may have been fraudu- 
 lently indorsed without the plaintiff's privity. The fact of payment still 
 hangs in dviiio, and you must do something more to turn the balance. 
 Prove the Bills out of the plaintiff's possession accepted, and I will presume 
 that they got back again by payment. If you do not, the plaintiff must be 
 called." Post, § 452. 
 
 1 Bayley on Bills, ch. 9, pp. 369 - 371 (5th edit.) ; Chitty on Bills, ch. 9, 
 pp. 391, 456-458 (8th edit.) ; Wain v. Bailey, 10 Ad. & El. 616 ; Pierson 
 V. Hutchinson, 2 Camp. 211 ; Long v. Bailie, 2 Camp. 214 ; Champion v. 
 Terry, 3 Brod. & Bing. 295 ; Bolt v. Watson, 4 Bing. 273 ; Hansard v. 
 Robinson, 7 B. & C. 90 ; Rowley v. Ball, 3 Cowen, 303 ; Pintard v. Thack- 
 ington, 10 John. 104 ; Renner v. Bank of Columbia, 9 Wheat. 581, 596, 
 597 ; McNair v. Gilbert, 3 Wend. 344 ; Hough v. Barton, 20 Verm. 455. 
 
 = Post, §§111, 448. 
 
CHAP, in.] EIGHTS AND DUTIES OF PARTIES. 115 
 
 and the holder is not entitled to demand payment, without 
 delivering up the Note. It is not sufficient, in such a case, to 
 show that the Note has been lost, or even destroyed, or that 
 it has become overdue ; for the maker has a right to it as his 
 voucher of payment, and as his security againsf any future 
 claim or demand thereof. As far as regards his voucher and 
 discharge towards the holder, it will be the same thing, 
 whether the instrument be destroyed or mislaid. With 
 respect to his own security against a demand by another 
 holder, there may be a difference. But how is he to be 
 assured of the fact, either of the loss or of the destruction of 
 the Note ? Is he to rely upon the assertion of the holder, or 
 to defend an action at the peril of costs ? And if the Note 
 should afterwards appear, and a suit should be brought 
 against him by another holder (a fact not improbable in 
 case of a lost Bill), is he to seek for the witnesses to prove 
 the loss, and to prove that the new plaintiff must have ob- 
 tained it after it became due ? Has the holder a right, by 
 his negligence or misfortune, to cast this burden upon the 
 maker, even as a punishment for not discharging the Note 
 , on the day when it became due ? ^ 
 
 § 108. These considerations, although put in a mere inter- 
 rogatory form, present the full stress of the argument against 
 any right of the holder to require payment, or any duty on 
 the part of the maker to make payment, of such a negotiable 
 Note, alleged to be lost or destroyed, which may pass title by 
 mere delivery. They have been thought sufficient in Eng- 
 land, notwithstanding some conflict of opinion, to support the 
 doctrine that no remedy under such circumstances lies at law 
 upon such a Note, whether, at the time of the supposed loss 
 or destruction, the Note was ov>erdue or not ; and that the 
 
 ' Hansard v. Robinson, 7 B. & C. 90. This case arose on a Bill of Ex- 
 change, and the reasoning of Lord Tenterden, in delivering the judgment 
 of the Court, is addressed to that case. But it^is equally applicable to the 
 case of a Promissory Note ; and is so laid down in Bayley on Bills, ch. 9, 
 pp. 369 - 373 (5th edit.) ; Story on Bills of Exchange, §§ 447 -449 ; Crowe 
 V. Clay, 25 Eng. Law & Eq. 451 ; Kamuz v. Crowe, 1 Exch. 167. 
 
116 PROMISSORY NOTES. [CHAP. in. 
 
 true and only remedy is in a Court of Equity, which, in grant- 
 ing relief, can at the same time compel the holder to giTe to 
 the maker a suitable and adequate indemnity.^ Of course, 
 as we shall hereafter see, every consideration, herein urged 
 applies still more forcibly to the case where payment is de- 
 manded of an indorser ; for he is entitled to his recourse over 
 against the maker.^ 
 
 § 109. The case of a Promissory Note, payable to bearer, 
 afifords a very clear illustration of the principle thus estab- 
 lished ; for any person who becomes the lawful possessor of 
 such a Note, after it has been lost, for value and without any 
 notice of a defect in his title, is certainly, upon principles of 
 policy and public convenience, entitled to the fullest protec- 
 tion.^ Under such circumstances, the maker ought not to 
 be exposed to the risk of being liable to a double payment 
 thereof to different holders, which he may, upon any other 
 rule, be compelled to incur ; and against which, from the 
 want of evidence on his own part, and from the varying evi- 
 
 ' Bayley on Bills, ch. 9, pp. 369-373 (5th edit.) ; Hansard v. Robinson, 
 7 B. & C. 90; Ex parte Greenway, 6 Ves. 812 ; Davies v. Dodd, 4 Taunt. 
 602 ; lb., 1 Wilson's Exch. 110 ; Crowe v. Clay, 25 Eng. Law & Eq. 
 451 ; Eamuz v. Crowe, 1 Exch. 167. By statute of 9 & 10 Will. 3, 
 ch. 17, § 3, if an inland Bill be lost or miscarried within the time limited 
 for payment, the drawee shall give another of the same tenor to the holder, 
 who, if required, shall give' security to indemnify him in case the Bill shall 
 be found. A provision like this existed under the French Ordinance of 1673, 
 art. 19. 
 
 ' Bayley on Bills, ch. 9, pp. 371 - 373 (5th edit.) ; Chitty on Bills, ch. 
 10, p. 532 (8th edit.) ; Story on Bills of Exchange, § 449 ; post, 445. See 
 Tuttle V. Standish, 2 Allen, 481, a well-considered c£ise, where it was held 
 that no action would lie against the indorser of a lost Note, because the 
 bond of indemnity would not afford him adequate protection and give him 
 all his rights over against the maker and prior indorsers, and enable him to 
 negotiate the paper, if he still desired to do so on paying it. 
 
 ' Bayley on Bills, ch. 12, pp. 529 - 531 (5th edit.) ; Chitty on Bills, ch. 6, 
 § 3, pp. 277-284 (8th edit.) ; Story on Bills, §§ 193, 194, 415 ; Goodman 
 V. HarveV, 4 A. &. El. 870; Uther v. Rich, 10 A. & El. 784 ; Arbouin v. 
 Anderson, 1 A. & El. New R. 498, 504 ; Knight v. Pugh, 4 Watts & Serg. 
 445. 
 
CHAP. III.] EIGHTS AND DUTIES OF PABTIES. 117 
 
 dences iu each of the cases, tending to charge him, he may 
 be unable to protect himself. 
 
 § 110. The French law proceeds upon a similar distinction 
 and principle.- By the old law, as well as by the modern 
 Code of Commerce, the acceptor of a Bill (and the like rule 
 applies to the maker of a Promissory Note) is not required, 
 when it is alleged to be mislaid, or lost, or destroyed, to pay 
 the Bill, if it be payable to bearer, or to order, unless upon 
 an indemnity being first given to the acceptor, under the 
 sanction of the proper court.^ And by the old law, silently 
 dropped in the modern Code, it was also provided, that if 
 the Bill be payable to a particular person only, then, not- 
 withstanding the mislaying, or loss, or destruction of the Bill, 
 payment of the Bill may be required by the acceptor without 
 any tender of indemnity.^ 
 
 § 111. In America, there has been (as has been already 
 hinted) some diversity of judicial opinion as to the right of 
 the holder, at law, to compel payment of a Promissory Note 
 from the maker, without a delivery or production thereof. 
 In some of the States the affirmative has been maintained ; ^ 
 
 ' Post, § lU. 
 
 ^ Ord. of 1673, art. 18, 19 ; Jousse, Sur L'Ord. 1673, art. 18, 19 ; Code 
 de Comm. art. 151, 152; Pardessus, Droit Comm. Tom. 2, art. 408, 410, 
 411. Jousse, in his Commentary upon the Ordin. of 1673, art. 18, p. Ill, 
 gives the reason for the distinction. " Sans dormer caution. Parce qu'une 
 Lettre de Change, qui n'est point payable k ordre, ou au porteur mais 
 seulement k un particulier, n'a point de suite, et que nuUe autre personne 
 eutre les mains de qui cette lettre viendrait k tomber, ne peut s'en servir 
 qu'en vertu d'un transport que lui en aurait fait celui au profit de qui elle 
 est tirde. Ainsi il n'est pas neoessaire dans ce cas de donner caution pour 
 recevoir la somme en vertu d'une seconde lettre, parce que si apres I'ac- 
 quittement de cette seconde lettre il venait une personne avec la premiere 
 Lettre de Change, meme avec un transport de celui k qui elle appartenait, 
 elle n'en serait pas plus avancee, ce transport ne lui donnant pas plus de 
 droit qu'en avait son cedant, suivant cette maxime de Droit, que Nemo 
 plus juris potest ad alium transferre quam ipse habet. (Dig. Lib. 54. ff. de 
 Regulis Juris.) C'est pourqnoi celui, que aurait pay^ sur la seconde lettre, 
 serait ddchargd de payer la premifere, en rapportant cette seconde lettre 
 quittanc^e de celui k qui elle etait payable." Post, § 447. 
 
 ' Anderson v. Robson, 2 Bay, 495 ; Swift v. Stevens, 8 Conn. 431 ; Mur- 
 
118 PBOMISSOEY NOTES. [CHAP. m. 
 
 in others, the English doctrine prevails ; ^ and, again, in 
 others, the holder is entitled to recover at law, if he exe- 
 cutes a suitable instrument of indemnity.^ [And even 
 without such bond of indemnity, if it appear that the statute 
 of limitations has barred the claim of any bona fide holder on 
 the Note.^ If the Note has been actually destroyed, also, no 
 indemnity is necessary.*] Upon another point, also, german 
 to this matter, the authorities are at variance with each other. 
 In England it has been held, that if a Promissory Note, paya- 
 ble to bearer (as, for example, a bank-note), be cut in 
 halves, and one half be lost, the holder cannot recover upon 
 the other half at law ; because the entire instrument must 
 be produced, or, at least, sufficient proof given that the part 
 which is wanting has been destroyed, for the half which is 
 missing may have got into the hands of a bona fide holder 
 for value, and he would have as good a right to recover upon 
 
 ray v. Carrett, 3 Call, 373 ; Renner v. Bank of Columbia, 9 Wheat. 581 ; 
 Peabody v. Denton, 2 Gall. 351 ; Story on Bills, § 448. See Freeman v. 
 Boynton, 7 Mass. 483, 486 ; Whitwell v. Johnson, 17 Mass. 449, 452 ; Gil- 
 bert V. Dennis, 3 Met. 495, 496, 497; Tales v. Eussell, 16 Pick. 315, 316 ; 
 Baker v. Wheaton, 5 Mass. 509, 512; Jones v. Fales, 5 Mass. 101 ; Clark 
 V. Reed, 12 Sm. & Mar. 554. 
 
 ^ Rowley v. Ball, 3 Cowen, 303 ; Smith v. Rockwell, 2 Hill, N. Y. 482 ; 
 Morgan v. Reintzel, 7 Cranch, 275. See Pintard v. Thackington, 10 
 John. 104 ; McNair v. Gilbert, 3 Wend. 344 ; Wilder v. Seelye, 8 Barb. 
 408. 
 
 ^ Meeker v. Jackson, 3 Yeates, 442 ; Brent v. Ervin, 15 Martin (Louis.), 
 803 ; Lewis v. Petayvin, 16 Martin (Louis.), 4 ; Miller v. Webb, 8 Miller 
 (Louis.), 516 ; Fales v. Russell, 16 Pick. 315, 316 ; Smith v. Rockwell, 2 Hill, 
 482 ; post, § 445 ; Almy v. Reed, 10 Cush. 421. In New York, the giving 
 the indemnity required by statute is a condition precedent to a recovery. 
 Desmond v. Rice, 1 Hilton, 530. In Iowa, final judgment cannot be ren- 
 dered on a. Note unless it is produced or accounted for. Brandt v. Foster, 
 5 Clark (lo.), 287. 
 
 • Torrey v. Foss, 40 Maine, 74. 
 
 ' Des Arts v. Leggett, 2 E. P. Smith, 582. But the owner of bank- 
 notes which cannot be identified nor distinguished, cannot maintain an ac- 
 tion, though he ofiers a bond of indemnity and evidence to prove that they 
 are burned. Tower v. Appleton Bank, 3 Allen, 387. Otherwise in Penn- 
 sylvania. Hagerstown Bank v. Adams Express Co., 45 Penn. St. 419. 
 
CHAP, ni.] EIGHTS AND DUTIES OF PARTIES. 119 
 
 that, as the other holder upon the other half;^ A different 
 doctrine has been maintained in some of the American States.^^ 
 
 § 112. The law of France does not (as we have seen), 
 upon the subject of the loss or destruction of a Bill of Ex- 
 change or Promissory Note, differ in substance frOm that of 
 England.^ The Code of Commerce positively declares, that 
 in such a case the payment thereof cannot be required 
 except upon the order of the proper judge, and upon giving 
 security.* This order may be obtained from the proper 
 judge, upon application of the holder ; and if the payment 
 should be refused on a demand made after such order, and 
 security offered, the holder is entitled to, and preserves all 
 his ordinary rights by a regular protest,^ 
 
 § 113. In the next place, as to the duties and obligations 
 of the maker of a Promissory Note. They may be summed 
 up in a very few words. He undertakes to pay the money 
 stated in the Note at the time when it becomes due, or, as 
 the common phrase is, at its maturity, to the payee, or other 
 person entitled to receive the same, according to the tenor 
 
 ' Mayor v. Johnson, 3 Camp. 326. Upon this occasion, Lord Ellen- 
 borough said : " I am of opinion that this action cannot be maintained. It 
 is usual and proper to pay upon an indemnity ; but " payment cannot be 
 enforced at law only by the production of an entire Note, or by proof that 
 the instrument, or the part of it which is wanting, has been actually de- 
 stroyed. The half of this Note taken from the Leeds mail may have 
 immediately got into the hands of a bona fide holder for value, and he 
 would have as good a right of suit upon that, as the plaintiffs upon the other 
 half, which afterwards reached them. But the maker of a Promissory Note 
 cannot be liable in respect of it to two parties at the same time." Bayley 
 on Bills, ch. 9, p. 374 (5th edit.). But see contra, Mossop v. Eadon, 16 Ves. 
 430. 
 
 ^ Bullet V. Bank of Pennsylvania, 2 Wash. Cir. 172; Patton v. State 
 Bank, 2 Nott & McCord, S. C. 464 ; Hinsdale v. Bank of Orange, 6 Wend. 
 378. 
 
 ' Ante, § 110. 
 
 * Code de Comm. art. 151 - 153, 187 ; Locr^, Esprit du Code de Comm. 
 Tom. 1, pp. 478 -486,- art. 160-152; Pardessus, Droit. Comm. Tom. 2, 
 art. 408-411; ante,% 110. 
 
 " Ibid. 
 
120 PKOMISSOEY NOTES. [OHAP. HI. 
 
 thereof. He is not bound to pay the Note until its maturity j 
 and if he pays it before, and it is not surrendered up, he will 
 be liable to any subsequent bona fide holder for value with- 
 out notice, before it became due.^ The maker, in case of the 
 Note being payable to bearer, or indorsed in blank, may dis- 
 charge himself by payment to any person, who is in posses- 
 sion of it, with an apparent lawful right of ownership.^ 
 Mere suspicion that he may not be the lawful holder will 
 not exonerate the maker from payment ; but there must be 
 circumstances amounting to clear proof that he is a fraud- 
 ulent holder.^ If the Note is payable to order, and is in- 
 dorsed, the maker, before he can safely pay it, is bound to 
 ascertain if the indorsement is genuine ; and, if the indorse- 
 ment be to a particular person, that the person producing it 
 is the identical person, otherwise he may be liable to pay it 
 again to the real and true owner.* 
 
 § 114. The same rule, as to the liability of the maker of a 
 Promissory Note, is recognized in the foreign law ; for the 
 maker incurs personally the same obligations, and stands in 
 the same position, as the acceptor of a Bill of Exchange ; and 
 by that law the acceptor, by his acceptance, engages to pay 
 to the holder the full amount of the Bill at maturity ; and if 
 he does not, the holder has a right of action against him, as 
 well as against the drawer. Heineccius says : " Trassati 
 obligatio ex acceptatione demum nascitur, et tunc dubium 
 non est, ilium tum a praesentante, tum ab indossatario con- 
 
 ' Bayley on Bills, ch. 8, p. 326 (5th edit.) ; Chitty on Bills, ch. 8, pp. 
 429, 431 (8tli edit.) ; Story on Bills, § 417. 
 
 " Bayley on Bills, ch. 5, § 2, pp. 129 - 131 (5th edit.) ; Miller v. Race, 1 
 Burr. 452; Grant v. Vaughan, 3 Burr. 1516 ; Story on Bills, § 450. 
 
 » Goodman v. Harvey, 4 A. & El. 870 ; Uther v. Rich, 10 A. & El. 784 ; 
 Arbouin v. Anderson, 1 A. &, El. New R. 498, 504 ; Chitty on Bills, ch. 9, 
 pp. 429, 430 (8th edit.) ; Story on Bills, §§ 450, 514. But see Hatch v. 
 Searles, 31 Eng. Law & Eq. 219 ; Pringle v. Phillips, 5 Sanford, 157; Hol- 
 brook w. Mix, 1 E. D. Smith, 161. 
 
 * Bayley on Bills, ch. 5, § 2, pp. 129 - 131, 134 (5th edit.) ; Chitty on 
 Bills, ch. 9, p. 430 (8th edit.) ; Id. pp. 459-463 ; Story on Bills, §§ 450, 
 451. 
 
CHAP, m.] RIGHTS AND DUTIES OF PARTIES. 121 
 
 veniri'posse. Et quamvis in utriusque arbitrio sit, adrersus 
 trassatum agece malit, an adversus trassantem ; posterius 
 tamen vel ideo plerumque fieri solet, quia denegata cambii 
 acceptati solutio argumentum plerumque evidentissimum 
 est, trassatum foro cessurum, et jam tum non amplius sol- 
 vendo esse." ^ Similar obligations exist by the French law 
 between the acceptor of a Bill, and the payee, and his in- 
 dorsee, and every subsequent holder thereof; and by his 
 acceptance the acceptor (and the maker of a Promissory 
 Note is in the same predicament) contracts an obligation 
 with them respectively, to pay the amount of the Bill at its 
 maturity, according to the tenor thereof; and this obligation 
 he incurs conjointly, and in solido, with the antecedent 
 parties thereto.^ 
 
 § 115. In the next place, as to the rights, duties, and obli- 
 gation^ of the payee. Of course, he has a right to receive 
 payment at the maturity of the Promissory Note, or when it 
 becomes legally due, and at the same time (as we have just 
 seen) he ought to be ready to produce and deliver up the 
 Note. He is also entitled to have it paid in the very money 
 or currency in which it is made payable, at its value at the 
 time of payment ; and he is not bound to accept payment in 
 any other manner.^ Thus, for example, he is entitled or- 
 dinarily to demand payment in gold or silver, at its current 
 value, or the standard value in the country where it is paid, 
 or payable ; and he is not bound to receive it in bank-notes, 
 or in any other paper currency.* The Note is also to be paid 
 at the place where it is made payable ; and although there is 
 some conflict of the authorities upon the point, it would 
 seem upon principle not to be payable elsewhere ; at least, 
 not until a demand has first been made thereof, at the proper 
 
 * Heinecc. de Camb. cap. 6, § 5 ; Story on Bills, § 115. 
 
 ' Pothier, De Change, 115-117; Code de Comm. art. 118, 121,140, 
 187; Pardessus, Droit. Comm. Tom. 5, art. 356, 376. 
 ' Story on Bills, §§ 418, 419 ; post, §§ 389-400. 
 
 * Story on Bills, § 419 ; Chitty on Bills, ch. 9, p. 433 (8th edit.) ; post, 
 §§389-400. 
 
122 PROMISSORY NOTES. [CHAP. in. 
 
 place for payment.^ But upon this more will be said here- 
 after in another connection.^ When the payee indorses the 
 Bill, other rights, duties, and obligations intervene, which 
 we shall proceed immediately to consider. 
 
 § 115 a. It may be well in this connection to state, that it 
 is no part of the duty of the holder of a Note which has 
 been dishonored, and due notice thereof given to the in- 
 dorsers, to sue the maker, merely because the indorsers, or 
 any of them, request him so to do. He has his choice in 
 this respeijt to sue whom he pleases, and all are in default to 
 him. On the contrary, it is the duty of any indorser, who 
 desires to recover or secure the amount against any of the 
 antecedent parties, to pay the Note himself, and thus to 
 entitle himself to bring a suit against such parties.^ [And 
 upon execution against principal and surety, the plaintiff is 
 not bound to make the money first out of the principal^ Or, 
 if such Note is secured by mortgage, he is not bound first to 
 > exhaust the mortgage.^] 
 
 ' Story on Bills, §§ 353 - 357, and the authorities there cited. 
 
 ' Mr. Bayley says (Bayley on Bills, eh. 7, § 1, p. 217) : " The receipt of 
 a Bill or Note implies an undertaking from the receiver, to every party to 
 the Bill or Note vfho would be entitled to bring. an action on paying it, to 
 present in proper time, the one, where necessary, for acceptance, and each 
 for payment ; to allow no extra time for payment ; and to give notice with- 
 out delay to such person of a failure in the attempt to procure a proper 
 acceptance or payment ; and a default in any of these respects will dis- 
 charge such person from all responsibility on account of a non-acceptance, 
 or non-payment, and will, unless the Bill or Note were on an improper 
 stamp, make it operate as a satisfaction of any debt or demand for which it 
 was given." There is some confusion in this passage, arising fi'om the fact, 
 that Bills and Notes are both mixed up in the statement. And, in truth, 
 all that is said is solely applicable to the drawers and indorsers of Bills, and 
 the indorsers of Notes, for, although the maker of a Note, or the acceptor 
 of a Bill, is an accommodation maker or acceptor for some other party 
 thereon, and " would be entitled to bring an action on paying it," yet 
 neither of them is within the scope of the rule, and the holder may, as to 
 them, delay the demand of payment as long as he chooses, without injury 
 to his rights. 
 
 ' Beebe v. West Branch Bank, 7 Watts & Serg. 375 ; post, § 419. 
 
 * Keaton v. Cox, 26 Geo. 162. ' Jones v. Tincker, 15 Ind. 308. , 
 
CHAP, m.] BIGHTS AND DUTIES OF PARTIES. 123 
 
 [115 b. Though, by the common law, where a contract in 
 writing, not under seal, is made in another name than that 
 of the real principal, the latter can sue and be sued, yet, in 
 the case of a Bill of Exchange or a Promissory Note, it has 
 been thought that none but the parties named in the instru- 
 ment can sue or be sued upon it. Therefore, where the 
 Bank of the United States sought to recover upon a Promis- 
 sory Note, executed by the defendants and made payable to 
 " Samuel Jaudon, Esq., cashier, or order," and it appeared 
 that the Note was given for a debt due to the Bank, and that 
 Jaudon was their cashier, acting merely as their agent in 
 taking the Note, and having no personal interest in it what- 
 ever, and that the Note had not been indorsed by Jaudon, it 
 was held that the Bank could not sustain an action upon it, 
 nor give it in evidence under a count for money had and 
 received to their use, or on an account stated with them.^ 
 But this doctrine is by no means uniform, and many well- 
 considered cases hold that the party beneficially interested 
 in the Note may sue upon it, although not named as 
 payee.2] 
 
 f Bank of United States u. Lyman, 20 Verm. 667. And see Moore v. 
 Penn, 5 Ala. 135 ; Coke v. Dickens, 4 Yerg. 29. But see Furniss v. Gil- 
 christ, 1 Sandford, 53. 
 
 ° Arlington «. Hinds, 1 D. Chip. 431 ; Farmers' Bank v. Day, 13 Verm. 
 36 ; Bank of Manchester v. Slason, 13 Verm. 334; Kutland and Burhng- 
 ton Eailroad v. Cole, 24 Verm. 34 ; Fairfield v. Adams, 16 Pick. 381 ; post, 
 §127. 
 
124 PKOMISSOEY NOTES. [CHAP. IV. 
 
 CHAPTER IV. 
 
 EIGHTS, DUTIES, AND OBLIGATIONS OP PAETIES, ON TRANSFERS. 
 
 § 116. Let us now proceed to the consideration of the 
 rights, duties, and obligations of the transferrer, or indorser 
 of a Promissory Note. A Note may be transferred by mere 
 delivery, as, for example, when it is payable to bearer, or it 
 is indorsed in blank, and the holder is not the indorser ; or it 
 may be transferred by indorsement.^ The rights, duties, and 
 obligations in each of these cases are not the same, and there- 
 fore require a separate and distinct consideration. 
 
 § 117. And first, as to a transfer by delivery. When a 
 Promissory Note is payable to the bearer, and is transferred 
 by mere delivery, without any indorsement, the person mak- 
 ing the transfer ceases to be a party to the Note.^ Under 
 such circumstances, he does not incur the obligations or re- 
 sponsibilities ordinarily belonging to an indorser.^ In other 
 
 ' Bayley on Bills, ch. 5, § 1, p. 121 (5tli edit.). 
 
 " Ibid. ; Id. p. 368 ; Story on Bills, §§ 111, 200, 225, note ; Chitty on 
 Bills, ch. 6, p. 271 (8th edit.) ; Id. ch. 6, pp. 245-247 (9th edit.) ; Thomson 
 on Bills, ch. 3, p. 555 (^d edit.). 
 
 ' Story on Bills, § 109, and note; Bayleyon Bills, ch. 5, § 3, pp. 169,170 
 (5th edit.) ; Chitty on Bills, ch. 6, pp. 268, 269 (8th edit.). Mr. Chitty, in 
 the 8th edition of his work on Bills of Exchange (ch. 6, p. 219), has the 
 following passage : " And in all cases, though no words authorizing a trans- 
 fer be inserted in a Bill or Note, yet it will always have the same operation 
 against the party making the transfer as if he had power to assign ; for the 
 act of indorsing a Bill is equivalent to that of a new drawing ; and a trans- 
 fer by mere delivery, unless where it is otherwise agreed or understood 
 from the nature of the transaction, imposes on the person making it an 
 obligation to his immediate assignee, similar to that created by indorse- 
 ment." The latter part of this passage is incorrect in point of law. In 
 the 9th edition (1840) of the same work, edited by Chitty and Hulme, Ft. 
 
CHAP. IV.] EIGHTS OF PARTIES ON TRANSFERS. 125 
 
 ■words, where a Promissory Note is payable to the bearer, or, 
 being payable to the payee or order, it is indorsed in blank, 
 and afterwards is transferred by the holder by mere delivery 
 thereof, without any indorsement, such holder is not respon- 
 sible thereon to the immediate party, to whom he delivers 
 the same, or to any subsequent holder, upon the dishonor 
 thereof; for no person, whose name is not on the Note, as a 
 party thereto, is liable on the Note, and he cannot be deemed ' 
 to undertake any of the ordinary obligations of an indorser.^ 
 By not indorsing it, he is generally understood to mean, that 
 he will not be responsible upon it.^ If, indeed, he under- 
 takes to guarantee the payment of the Note, upon such a de- 
 livery or transfer, he may be liable upon such special con- 
 tract ; ^ but that is collateral to the obligations created by 
 the Note, and is ordinarily limited to the immediate parties 
 thereto.* In like manner, if the Note, in such a case, is re- 
 ceived by the party to whom it is delivered as conditional 
 payment of a precedent debt due to him, or as a conditional 
 satisfaction for any other valuable consideration, then paid 
 by him, the holder who delivered it will, if the Note be duly 
 presented and dishonored, and due notice thereof be given to 
 him, be responsible to pay back the full amount of the prece- 
 dent debt, or valuable consideration, although he is not di- 
 rectly suable as a party to the Note.^ On the other hand, 
 
 1, ch. 6, pp. 196, 197, the whole passage is silently dropped, and thereby its 
 inaccuracy impliedly admitted. 
 
 ' See Bayley on Bills, ch. 9, pp. 368, 369 (5th edit. 1830) ; Chitty on Bills, 
 ch. 5, pp. 197, 200, 201 (8th edit. 1833); Id. ch. 6, pp. 262, 269-273; 
 French v. Turner, 15 Ind. 59. 
 
 ' Fenn v. Harrison, 3 Term, 757 ; Koberts v. Haskell, 20 111. 59. 
 
 ' Chitty on Bills, ch. 6, pp. 269, 270, 272 (8th edit. 1833) ; Morris v. 
 Staeey, Holt, 153. 
 
 * Chitty on Bills, ch. 6, pp. 268-271 (8th edit. 1833) ; In the matter of 
 Barrington and Burton, 2 Sch. & Lefr. 112 ; Story on Bills, §§ 215, 457. 
 
 * Chitty on Bills, ch. 5, pp. 200-202 (8th edit. 1833); Id. pp. 268- 
 271 ; Bayley on Bills, ch. 9, pp. 363 -368 (5th edit. 1830) ; Ex parte Black- 
 burne, 10 Ves. 204; Owenson v. Morse, 7 Term, 64; Brown v. Kewley, 2 
 Bos. & Pull. 518 ; Ward v. Evans, 2 Ld. Raym. 928 ; Puckford v. Max- 
 
126 FEOMISSOKY NOTES. [CHAP. IV. 
 
 the party receiving the same is bound, under such circum- 
 stances, to make due presentment of the Note, and to give 
 due notice of the dishonor ; otherwise, by his laches, he 
 makes the Note his own, and discharges the party from whom 
 he received it from all liability for any loss sustained there- 
 by .^ But this we shall presently have occasion to state in 
 more general terms.^ 
 
 well, 6 Term, 52 ; Tapley v. Martens, 8 Term, 351 ; Robinson v. Kead, 9 B. 
 & C. 449 ; Emly v. Lye, 15 East, 13 ; Ex parte Dickson, cited 6 Term, 
 102; ante, §§ 104, 105; post, §§ 404,438. 
 
 1 Ibid. In Bayley on Bills, ch. 5, § 3, p. 169 (5th edit. 1830), it is said : 
 " And a transfer, by delivery only, if made on account of an antecedent 
 debt, implies a similar undertaking, from the party making it, to the person 
 in whose favor it is made " ; that is, an undertaking similar to that of an in- 
 dorser, or drawer of a Bill. But this is manifestly incorrect. Mr. Chitty, in 
 his 8th edition (1833), p. 268, quite as inaccurately stated the same posi- . 
 tion; but afterwards immediately corrected it in his text; and stated what 
 is now the well-considered and established doctrine. In his 9th edition 
 (1840), p. 244, he says : " It has been said that a transfer, by mere delivery, 
 without any indorsement, when made on account of a pre-existing debt, or 
 for a valuable consideration, passing to the assignor, at the time of the 
 assignment (and not merely by way of sale or exchange of paper), as where 
 goods are sold to him, imposes an obligation on the person making it to the 
 immediate person in whose favor it is made, equivalent to that of a transfer 
 by formal indorsement. But this expression seems incorrect ; for the party, 
 transferring only by delivery, can never be sued upon the instrument, eith- 
 er as if he were an indorser, or as having guaranteed its payment, unless 
 he expressly did so. The expression should be, ' that, if the instrument 
 should be dishonored, the transferrer, in such case, is liable to pay the debt 
 in respect of which he transferred it, provided it has been presented for 
 payment in due time, and that due notice be given to him of the dishonor.' 
 A distinction was once taken between the transfer of a bill, or check, for a 
 precedent debt, and for a debt arising at the time of the transfer ; and it was 
 held that, if A bought goods of B, and, at the same time gave him a draft 
 on a banker, which B took, without any objection, it would amount to 
 payment by A, and B could not resort to him, in the event of a failure of 
 the banker. But it is now settled that, in such ease, unless it was ex- 
 pressly agreed, at the time of the transfer, that the assignee should take 
 the instrument assigned as payment, and run the risk of its being paid, he 
 may, in case of default of payment by the drawee, maintain an action 
 against the assignor, on the consideration of the transfer. And where a 
 
 ' Story on Bills, § 109. 
 
CHAP. IV.] BIGHTS OF PARTIES ON TEANSFEES. 127 
 
 § 118. Still, however, unless it be expressly otherwise 
 agreed, the holder so transferring the Note is not exempt 
 from all obligations or responsibilities ; but he incurs some, 
 although they are of a limited nature. In the first place, he 
 warrants, by implication, unless otherwise agreed, that he is 
 a lawful holder, and has a just and valid title to the instru- 
 ment, and a right to transfer it by delivery ; for this is im- 
 plied as an obligation of good faith.^ In the next place, he 
 warrants,^ in the like manner, that the instrument is genu- 
 ine, and not forged or fictitious ; ^ [that it is of tlie kind and 
 description it purports on its face to be ; * unless where the 
 Note is sold, as other goods and effects, by delivery merely, 
 without indorsement, in which case it has, in some cases, been 
 decided, that the law respecting the sale of goods is applicable, 
 and that there is no implied warranty ; ^ but any such dis- 
 tinction may well be doubted, both upon principle and au- 
 thority.® ] In the next place, he warrants that he has no 
 knowledge of any facts which prove the instrument, if orig- 
 
 debtor, in payment of goods, gives an order to pay the bearer the amount 
 in Bills on London, and the party takes Bills for the amount, he will not, 
 unless guilty of laches, discharge the original debtor." Chitty on Bills, ch. 
 6, pp. 268, 269 (8th edit. 1833) ; Id. Pt. 1, ch. 6, p. 244 (9th edit.) ; Cam- 
 idge V. Allenby, 6 B. & C. 373 ; Phoenix Ins. Co. v. Allen, 11 Mich. 511. 
 
 ' Story on Bills, §§ 109-111. See Burrill v. Smith, 7 Pick. 291. But 
 see Byles on Bills, p. 125, note s. 
 
 ' Gurney v. Womersley, 28 Eng. Law & Ecj. 256. 
 
 = Bayley on Bills, ch. 5, § 3, p. 179 (5th edit.) ; Id. pp. 364, 366 ; Chitty 
 on Bills, ch. 6, pp. 269-271 (8th edit); Id. ch. 6, pp. 244-247 (9th 
 edit.) ; Story on Bills, §§ 111, 225, 419 ; Ellis u. Wild, 6 Mass. 321 ; Young 
 V. Adams, 6 Mass. 182 ; Markle v. Hatfield, 2 John. 455 ; Eagle Bank of 
 New Haven v. Smith, 5 Conn. 71 ; Jones v. Ryde, 5 Taunt. 488 ; Bruce 
 V Bruce, 1 Marsh. (Eng.) 165 ; Strange v. Ellison, 2 Bailey, 385 ; Mor- 
 rison V. Currie, 4 Duer, 79 ; Cabot Bank v. Morton, 4 Gray, 156. 
 
 * Gompertz v. Bartlett, 24 Eng. Law & Eq. 156. 
 
 " Baxter v. Duren, 29 Maine, 434 ; Ellis v. Wild, 6 Mass. 321 ; Fenn v. 
 Harrison, 3 Term, 757 ; Bank of England v. Newman, 1 Ld. Kaym. 442 ; 
 Chitty on Bills, ch. 6, pp. 245, 246. But see Gurney v. Womersley, 28 
 Eng. Law & Eq. 256 ; Gompertz v. Bartlett, 24 Id. 156. 
 
 * See Eieman v. Fisher, 4 Am. Law Reg. 433, May No. 1856. 
 
128 PEOMISSOEY NOTES. [CHAP. IV. 
 
 inally valid, to be worthless, either by the failure of the mak- 
 er, or by its being already paid, or otherwise to have become 
 void or defunct ; for any concealment of this nature would 
 be a manifest fraud.^ Thus, for example, if the instrument 
 
 ' Chittjr on Bills, ch. 6, p. 271 (8th edit.) ; Id. ch. 6, pp. 244-249 (9th 
 edit.) ; Bayley on Bills, ch. 9, pp. 365, 366 (5th edit.) ; Story on Bills, 
 § 111, note, § 225, and note ; Fenn v. Harrison, 3 Term, 757 ; Camidge v. 
 Allenby, 6 B. & C. 373, 382; Young v. Adams, 6 Mass. 182, 185. Thg 
 following quotation from the 9th edition (1840) of Mr. Chitty on Bills, pp. 
 244 - 247, edited by Mr. Chitty and Mr. Hulme, shows the state of the law 
 according to the learned author's latest opinion. It occurs immediately af- 
 ter the passage cited in the preceding section, n. (2). " And where a per- 
 son obtains money or goods on a bank-note, navy bill, or other Bill or Note, 
 on getting it discounted, although without indorsing it, and it turns out to 
 be forged, he is liable to refund the money to the party from whom he re- 
 ceived it, on the ground that there is in general an implied warranty that 
 the instrument is genuine ; although there is no guaranty implied by law, 
 in the party passing a Note payable on demand to bearer, that the maker 
 of the Note is solvent at the time when it is so passed. And although a 
 party do not indorse a Bill or Note, yet he may, by a collateral guaranty 
 or undertaking, become personally liable. But as, on a transfer by mere 
 delivery, the assignor's name is not on the instrument, there is no privity of 
 contract between him and any assignee, becoming such after the assign- 
 ment by himself, and consequently no person but his immediate assignee 
 can maintain an action against him, and that only on the original consider- 
 ation, and not on the Bill itself And if only one of several partners in- 
 dorse his name oh a Bill, and get it discounted with a banker, the latter 
 cannot sue the firm, though the proceeds of the Bill were carried to the 
 partnership account. When a transfer by mere delivery, without indorse- 
 ment, is made merely by way of sale of the Bill, or Note, as sometimes oc- 
 curs ; or by exchange of it for other Bills ; or by way of discount, and not 
 as a security for money lent; or where the assignee expressly agrees to 
 take it in payment, and to run all risks ; he has in general no right of ac- 
 tion whatever against the assignor, in case the Bill turns out to be of no 
 value. But there can be no doubt that if a man assign a Bill for any suffi- 
 cient consideration, knowing it to be' of no value, and the assignee be not 
 aware of the fact, the former would, in all oases, be compellable to repay 
 the money he had received. And it should seem that if, on discounting a 
 Bill or Note, the Promissory Note of country bankers be delivered after 
 they have stopped payment, but unknown to the parties, the person taking 
 the same, unless guilty of laches, might recover the amount from the dis- 
 counter, because it must be implied, that at the time of the transfer the 
 Notes were capable of being received, if duly presented for payment." 
 
CHAP. IV.] EIGHTS OF PAETIES ON TRANSFERS. 129 
 
 be a bank-note, and at the time of the transfer by delivery 
 the party knows the bank to have become insolvent, and con- 
 ceals it from the other party, it will be deemed a fraud, and 
 the consideration for the transfer may be recovered back.^ 
 
 § 119. But another question may arise on this subject, 
 which involves more doubt, and has given rise to some di- 
 versity of opinion. Suppose the instrument to be a bank- 
 note, and both parties are equally innocent, and equally ig- 
 norant that the bank at that time has actuEilly failed, and 
 become insolvent. Under such circumstances, which party 
 is to bear the loss ? The transferrer or the transferee ? The 
 authorities on this subject are in conflict with each other, 
 some maintaining that the transferrer in such case must bear 
 the loss, and others, that it must be borne by the transferee. 
 The weight of reasoning and the weight of authority seems 
 to be in favor of the former, for, as Mr. Cliitty has well re- 
 marked, it must be implied in the ■ absence of any other ex- 
 press agreement or understanding, that, at the time of the 
 transfer, the bank-note would be paid, if duly presented for 
 payment at the bank.^ 
 
 Delavan Bank v. Jarvis, 20 N. Y. 226 ; Brown v. Montgomery, lb. 287 ; 
 Prettyman v. Short, 5 Harrington, 360. 
 
 ' Ibid. 
 
 '' Chitty on Bills, ch. 6, p. 271 (8th edit.) ; Id. ch. 6, p. 247 (9th edit.), 
 and note, supra; Id. ch. 9, pp. 384, 385 (9th edit.) ; Story on Bills, § 111, 
 and note, §§ 225, 419. See Camidge v. Allenby, 6 B. & C. 373 ; Owenson 
 V. Morse, 7 Term, 64 ; Ex parte Blackburne, 10 Ves. 204 ; Emly v. Lye, 15 
 East, 7, 13. By Bayley, J. In Bayard v. Shunk, 1 Watts & Serg. 92, in 
 Pennsylvania, it was held, that payment in bank-bills, after the bank has 
 failed, but the fact is unknown both to payer and receiver, is a good pay- 
 ment, and the loss is to be borne by the receiver. The like doctrine seems 
 to have been held in Young v. AdamsJ 6 Mass. 182, 185, in Scruggs v. .Gass, 
 8 Yerg. (Tenn.) 175, and in Lowry v. Murell, 2 Porter, Ala. 282. The op- 
 posite doctrine has been maintained in New York, in Lightbody v. The 
 Ontario Bank, 11 Wend. 1, affirmed on error in 13 Wend. 107, and inHar- 
 ley V. Thornton, 2 Hill, S. C. 509. The latter doctrine has been sup- 
 ported in N. H., in Fogg v. Sawyer, 9 N. H. 365 ; Story on Bills, § 225, 
 and note; post, § 389; Wainwright v. Webster, 11 Verm. 576; Gilman v. 
 Peck, Id. 516; Frontier Bank v. Morse, 22 Maine, 88 ; Timmis v. Gibbins, 
 9 
 
130 PKOMISSOEY NOTES. [CHAP. IV. 
 
 § 120. In the next place, as to transfers by indorsement. 
 [All transfers are presumed, in the absence of evidence to 
 the contrary, to have been made before the Note became due,^ 
 because, if there be no date to the indorsement, and no evi- 
 dence aliunde of the time of indorsement, the date of the 
 Note itself is held to apply to all there is on the paper, both 
 to the original Note and to the indorsement ; but if it be 
 shown that the indorsement was not in fact made when the 
 Note was made, the basis of the presumption fails, and the 
 holder must then show, it is said, that the indorsement was 
 made before action brought.^] If a Promissory Note is origi- 
 nally payable to a person or his order, there it is properly 
 transferable by indorsement. We say properly transferable, 
 because in no other way will the transfer convey the legal 
 title to the holder, so that he can, at law, hold the other par- 
 ties liable to him ex directo, whatever may be his remedy in 
 equity.^ If there be an .assignment thei-eof without an in- 
 
 14 Eng. Law & Eq. 64, and Bennett's note. In Tennessee it was held 
 that payment in genuine bank-bills, supposed by the parties to be good, 
 though worthless, is binding, and the loss must fall upon the party receiv- 
 ing. Ware v. Street, 2 Head, 609. It is otherwise if the bills are spurious. 
 Ibid.; Baker v. Bonesteel, 2 Hilton, 397. Payment in bills of a bank 
 failed at the time is no payment. Townsends v. Bank of Kacine, 7 Wis. 
 185. In Texas it was held, that in paying bank-bills there was an implied 
 undertaking that they were current, and would pass as money. Kottwitz 
 V. Bagby, 16 Texas, 656. In Ohio it was held, that the loss must fall upon 
 the payer of failed bank-bills, if both parties were ignorant, and if they 
 were returned in a reasonable time. Westfall v. Braley, 10 Ohio St. 
 188. But in Wisconsin the failure to return only affected the damages. 
 Townsends v. Bank of Racine, 7 Wis. 185. In Indiana a payment in illegal 
 bills was held good, if the payee stipulated to be paid in them. Dakin v. 
 Anderson; 18 Ind. 52. So, if a creditor has received illegal bills, and passed 
 them at par, and the debtor has redeemed them of the holders. Alexan- 
 der V. Byers, 19 Ind. 301. 
 
 1 Andrews v. Chadbourne, 19 Barb. 147 ; Stewart v. Smith, 28 111. 397; 
 Snyder v. Oatman, 16 Ind. 265; Noxon v. De Wolf, 10 Gray, 343; Wil- 
 kinson V. Sargent, 9 lo. 521. 
 
 » Hutchinson v. Moody, 18 Maine, 393 ; Parker v. Tuttle, 41 Maine, 349. 
 
 ' Bayley on Bills, ch. S, § 1, pp. 120, 121 (5th edit. 1830); Chitty on 
 Bills, ch. 6, p. ■251 (8th edit. 1833) ; Id. p. 265 ; Gibson v. Minet, 1 H. 
 
CHAP. IV.] EIGHTS OF PARTIES ON TRANSFERS. 131 
 
 dorsement, the holder will thereby acquire the same rights 
 only as he would acquire upon an assignment of a Note not 
 negotiable.^ If by mistake, or accident, or fraud, a Note has 
 been omitted to be indorsed upon a transfer, when it was in- 
 tended that it should be, the party may be compelled by a 
 Court of Equity to make the indorsement ; and, if he after- 
 wards becomes bankrupt, that will not Tary his right or duty 
 to make it ; and, if he should die, his executor or adminis- 
 trator will be compellable in like manner to make it.^ The 
 a,ssignees of a bankrupt, under the like circumstances, may 
 be compelled to make an indorsement of a Note, transferred 
 before his bankruptcy.^ But, in the case of an executor, or 
 administrator, or assignee of a bankrupt, the doctrine is to 
 be understood with this limitation, that the indorsement 
 cannot be insisted upon, except with the qualification, that it 
 shall not create any personal liability of the executor, or ad- 
 ministrator, or assignee, to pay the Note.* 
 
 [§ 120 a. A Note may be indorsed to a party in two ways, 
 either by special indorsement, making it payable to that par- 
 Black. 605; Story on Bills, § 60 ; Clark v. Sigourney, 17 Conn. 511; 
 Smalley v. Wight, 44 Maine, 442. Haskell v. Mitchell, 53 Me. 468. 
 
 ' In general, in such a case, the holder, as against the prior parties, will, 
 upon the transfer, have the same rights in equity as the payee or assignor 
 has ; that is, he may, at law, sue the other parties thereto, in the name of 
 the payee or assignor, or perhaps he may maintain a suit in equity in his 
 own name, ex directo, against them. See Story on Bills, § 199 ; 2 Story on 
 Eq. Jurisp. §§ 1036, 1037, 1044, 1047. A Note, sold and delivered before 
 maturity, but not indorsed by the payee till after maturity, and then with- 
 out recourse, the indorsee having notice at that time of a defence, is sub- 
 ject to the same defence as if it had remained in the payee's hands. South- 
 ard V. Porter, 43 N. H. 379. And a Note indorsed, but not delivered till 
 after maturity, is subject to all the defences between the original parties at 
 time of delivery. Goodwin v. Davenport, 47 Maine, 112. 
 
 ' Chitty on Bills, ch. 6, pp. 228, 229 (8th edit. 1833); Id. p. 263 ; Bay- 
 ley on Bills, ch. 5, § 1, p. 123 (5th edit. 1830) ; Id. § 2, pp. 136, 137 ; Wat- 
 kins V. Maule, 2 Jac. & Walk. 237, 242 ; Smith v. Pickering, Peake, 50 ; 
 Malbon v. Southard, 36 Maine, 147. 
 
 " Bayley on Bills, ch. 5, § 2, p. 138 (5th edit. 1830); Ex parte Mowbray, 
 1 Jac. & Walk. 428. 
 
 ' Ibid.; Story on Bills, §§ 195, 201. 
 
132 PEOMISSOEY NOTES. [CHAP. IV. 
 
 ty, or by a blank indorsement, and delivery to that party. 
 In the latter way, if not in the former, the Note must be de- 
 livered to the party as, indorsee, in order to constitute an in- 
 dorsement to him.^ Accordingly, where a party, having writ- 
 ten his name on a Promissory Note, died, and his executrix, 
 without indorsing it, simply delivered it to the plaintiffs, it 
 was held that these acts did not constitute an indorsemeht of 
 the Note, and that the plaintiffs had no title to sue on it.^ 
 An indorsement requires a delivery of the Note by the in- 
 dorser himself, with the intention of passing the property in 
 the Note ; and an indorsement and delivery by the payee to 
 a third person, for the purpose of getting a discount for the 
 indorser's benefit, does not pass a legal title to the indorsee.^ 
 Neither will a delivery to an attorney employed by a nominal 
 indorsee be sufficient ; for, in order to constitute a valid in- 
 dorsement, the holder must not only write his name on the 
 back thereof, but must also manually deliver the Bill or Note 
 to the indorsee.* But a constructive delivery has been held 
 sufficient.^ And if the alleged. signature and indorsement is 
 not denied in the pleadings, it has been held no defence to a 
 Note, in an action by an indorsee, for the defendant to prove 
 that the plaintiff never owned the Note, nor paid any- 
 thing for it, nor had any interest in it, nor had it in his pos- 
 session.8 And if a Note be payable to a payee named, or 
 bearer, the production of it at the trial by the plaintiff is 
 sufficient evidence of his title to sue upon it in his own name, 
 although he was also the general agent of the payee named 
 in it, and although the answer alleged that the payee was 
 
 ' See Emmet v. Tottenham, 20 Eng. Law & Eq. 348 ; 8 Exch. 884. 
 
 ' Bromage v. Lloyd, 1 Exch. 32 ; Marston v. Allen, 8 M. & W. 494 ; 
 Bell V. Ingestre, 12 A. & El. (N. S.) 317 ; Clark o. Sigourney, 17 Conn. 511 ; 
 Nelson V. Nelson, 6 Ired. Eq. N. C. 409 ; Clark v. Boyd, 2 Ilamm. 279. 
 
 ' Lloyd V. Howard, 1 Eng. Law & Eq. 227 ; Manhattan v. Reynolds, 2 
 Hill, 140. 
 
 * Sainsbury v. Parkinson, 20 Eng. Law & Eq. 351. 
 
 ' Richardson v. Lincoln, 5 Met. 201. 
 
 ' Way V. Richardson, 3 Gray, 412. 
 
CHAP. IV.] EIGHTS OF PAETIES ON TEAKSFERS. 133 
 
 still the owner of it, and that the defendant had a valid set- 
 off to such Note.^] 
 
 § 121. In the next place, as to the form of an indorse- 
 ment. In cases vhere an indorsement is necessary, as it is 
 upon all Promissory Notes payable to order, no particular 
 form of words is indispensable to be used. It is generally 
 sufficient, if there be the signature of the indorser affixed, 
 without any other words being used.^ And if any other 
 words are placed over, or precede the signature, it is siiffi- 
 cient, if they import a present intent to transfer the same 
 thereby.^ It has even been held, that the initials of the hold- 
 er of a check, indorsed on the check, are sufficient to charge 
 him as indorser.* So, if the party intending to become the 
 indorser make any marks, or write any figures (as 1, 2, 3), 
 on the back of the Note, he will be chargeable as indorser.* 
 [If the payee be described by his business name merely, he 
 may indorse by his personal name.® But a Note made pay- 
 able to John P. Reed, a real person, cannot be validly indorsed 
 by Joseph P. Eeed, a different person, although the Note was 
 in fact made and delivered to said Joseph P. for a considera- 
 tion advanced to the maker by him, and not by said John P.^ 
 
 '■ Pettee v. Prout, 3 Gray, 502. 
 
 " Cutting V. Conklin, 28 111. 606. And an indorsement in blank gives 
 the holder the right to fill up the assignment in the usual and customary- 
 form. Hance u. Miller, 21 111. 636. 
 
 '' Chittyon Bills, ch. 6, p. 253 (8th edit. 1833) ; Bayleyon Bills, oh. 5,§ 1, 
 p. 122 (5th edit. 1830) ; Chaworth v. Beech, 4 Ves. 555 ; Partridge v. Da- 
 vis, 20 Verm. 499. An indorsement, " I guarantee A 180 part of the 
 within Note, and assign the same to him," was held a guaranty of part, 
 and an assignment of the whole Note. Bondurant v. Bladen, 19 Ind. 
 160. 
 
 * Merchants' Bank v. Spicer, 6 Wend. 443. 
 
 * Brown v. Butchers' and Drovers' Bank, 6 Hill, 443 ; George v. Sur- 
 rey, 1 Mood. &Malk. 516. 
 
 ° Bryant v. Eastman, 7 Cush. 111. 
 
 ' BoUes V. Stearns, 11 Cush. 320. But if the Note is payable to a fic- 
 titious payee, or to a firm that does not exist, the person to whom the Note 
 is given may assume and indorse such fictitious or firm name, and pass a 
 good title to an innocent holder. Blodgett v. Jackson, 40 N. H. 21. Butthe 
 indorsee must show, affirmatively that the payee is a fictitious person, and 
 
134 PROMISSORY NOTES. [CHAP. IV. 
 
 If there be two persons, father and son, of the sande name as 
 the payee, and such nanae be indorsed on the Note, it will 
 generally be understood, in the absence of all evidence to 
 the contrary, to be the signature of the father.^] The word 
 " indorsement,"' in its strict sense, seems to import a writing 
 on the back of the Note ; but it is well settled, that this is not 
 essential.^ On the contrary, it will be a good indorsement 
 if it be made on the face of the Note ; or on another paper 
 annexed thereto (called in France, Allong-e), which is some- 
 times necessary, when there are many successive indorse- 
 ments to be made.^ The signature ought, in all cases, to be 
 written with ink, in order to prevent its defacement. But 
 even this has been recently held not to be indispensable, and 
 that an indorsement in pencil is sufficient.* The mode of 
 making the indorsement, when it is by an agent, or a part- 
 ner, or a feme covert, or any other person, acting officially, 
 is precisely the same as the signature should be in drawing a 
 Note.® "In whatever way an indorsement may be made by 
 the general principles of law, unless varied by the contract of 
 the parties, the indorser is deemed to stand in the relation of 
 a new drawer of a Bill of Exchange, and, of course, he is 
 affected with all the liabilities of a drawer.^ 
 
 § 122. Indorsements are sometimes made upon Promissory 
 
 that he was ignorant of it afr the time of taking the Note. Maniort v. 
 Eoberts, 4 E. D. Smith, 83. 
 
 » Stebbing v. Spicer, 8 C. B. 827 ; Sweeting v. Fowler, 1 Stark. 106. 
 
 ^ Heineccius says : " Id, quod vocant indossamentum (das Indossement) 
 quia dorso inscribi solet." Heiuecc. de Camb. cap. 2, § 7. See also 
 Pothier, De Change, n. 22; Gibson v. Powell, 6 How. (Miss.). 60. 
 
 ' Chitty on Bills, ch. 5, p. 147 (8th edit. 1833) ; Id. ch. 6, pp. 263, 262 ; 
 Pardessus, Droit Comm. Tom. 2, art. 343; Folger v. Chase, 18 Pick. 63 ; 
 post, § 151 ; Herring v. Woodhull,^9 111. 92. 
 
 ♦ Chitty on Bills, ch. 6, p. 252 (8th edit. 1833) ; Geary v. Physic, 5 B. 
 & C. 234 ; Partridge u. Davis, 20 Verm. 499 ; ante, § 11. 
 
 ' Ante, §§ 68 - 73, 87. 
 
 » Chitty on Bills, ch. 6, pp. 265-267 (8th edit. 1833) ; Hodges v. Stew- 
 ard, 1 Salk. 125; Heylin v. Adamson, 2 Burr. 674; Ballingalls v. Gloster, 
 3 East, 481 ; Bayley on Bills, ch. 9, p. 332 (5th edit. 1830) ; Pothier, De 
 Change, n. 38 ; Story on Bills, § 204. 
 
CHAP. IV.] EIGHTS OF PARTIES ON TEANSFEKS. 185 
 
 Notes containing blanks, to be afterwards filled up, and 
 sometimes upon blank paper, which is intended to be filled 
 up, so as to make the party an indorser. In aU such cases, 
 as against him, the Note is to be treated exactly as if it had 
 been filled up before he indorsed it, and he will be bound ac- 
 cordingly.i And it will make no difference in the rights of 
 the holder, that he knows the facts ; unless, indeed, there 
 should be a known fraud upon the indorser, or a known mis- 
 appropriation of the Note to other purposes than those, 
 which were intended.^ [If the payee transfer the Note only , 
 by a guaranty, as by signing his name to these words on the 
 back, "I hereby guarantee this Note," leaving nothing to 
 implication, this is not an indorsement, and the payee is not 
 liable as indorser, to any subsequent holder of the Note.^] 
 
 [§ 122 a. In some of the States there are statutes authoriz- 
 ing the assignee of a chose in action to* bring a suit in his own 
 name against the debtor. Under this legislation, the holder 
 of a Promissory Note may bring a suit in his own name 
 against the maker, although it is not indorsed by the payee, 
 or assigned, otherwise than by delivery with intent to pass the. 
 property in the Note.* But it has been held in New York, 
 that the indorsement of a Promissory Note is not an assign- 
 ment of a claim against the maker, but is a draft upon the 
 maker for the amount of the Note.^] 
 
 ' Chitty on Bills, eh. 6, pp. 240, 241 (8th edit. 1823) ; Snaith u. Min- 
 gay, 1 M. & S. 87 ; Cruchley v. Clarance, 2 M. & S. 90 ; Bayley on Bills, ch. 
 1, § 10, p. 36 (5tli edit. 1830) ; Id. ch. 5, § 3, pp. 167, 168; Russell v. 
 Langstaffe, Doug. 514 ; Usher u. Dauncey, 4 Camp. 97-; Pasmore v. North, 
 13 East, 517 ; Putnam v. Sullivan, 4 Mass. 45 ; Mitchell v. Culver, 7 Cow- 
 en, 336 ; Violett v. Patton, 5 Cranch, 142 ; 1 Bell, Comm. B. 3, ch. 2, § 4, 
 p. 390 (5th edit.) ; Smith u. Wyckoff, 3 Sand. Ch. 77 ; Torrey v. Fisk, lo' 
 Sm. & Mar. 590 ; Montague v. Perkins, 22 Eng. Law & Eq. 516. But see 
 Abrahams v. Skinner, 12 A. & El. 763. 
 
 " Ibid. ; Story on Bills, § 222. 
 
 = Belcher v. Smith, 7 Cush. 482 ; Tuttle v. Bartholomew, 12 Met. 452. 
 
 * Bockee v. Naella, 28 Mo. 180; Bennett v. Pound, lb. 598; Lewis v. 
 Bowen, 29 Mo. 202 ; Willard v. Moies, 30 Mo. 142 ; Kimball v. Whitney, 
 15 Ind. 280 ; Pease v. Rush. 2 Min. 107. 
 
 ' Hicks V. Wirth, 4 E. D. Smith, 78; Gardner v. Gordon, 3 Bosw'. 369. 
 
136. PEOMISSOEY NOTES. [CHAP. IV. 
 
 § 123. As to the rights, duties, and obligations arising 
 from an indorsement. We have already had occasion to con- 
 sider who are competent to become parties to Promissory 
 Notes, as makers, or payees, or indorsers, or indorsees, and 
 it is not, therefore, necessary to enlarge upon the topic in 
 this place.^ Still, however, as the subject is of great practi- 
 cal importance, it may be well to suggest a -few remarks; 
 first, as to the persons by whom a transfer may be made ; and, 
 secondly, as to the persons to whom it may be made. In case 
 ,of the bankruptcy of the payee, or other holder of a Promis- 
 sory Note, all his rights of transfer of the same become vested 
 in his assignees, who may, by law, transfer the same in their 
 own names.2 In case of the death of the payee, or other 
 holder, the like right exists in the executors and administra- 
 tors of the deceased ; and they [or either of them^] may, in 
 their own names, transfer the Note in the like manner.* 
 [But this must be understood only of a Note, not even 
 in part transferred by the payee. For an executor, of a 
 payee, as we have before seen,^ has no power to deliver a Note 
 indorsed by the payee, but not delivered by him.] In each 
 of these cases, the transfer will be available, as assets, for the 
 benefit of the estate of the bankrupt, or of the deceased tes- 
 tator or intestate, if the Note was held by him bona fide on 
 his own account ; and if held, either positively or construc- 
 tively, in trust for the benefit of third persons, the transfer 
 will be for their sole use.^ 
 
 § 124. In case of the marriage of a female, who is payee 
 or indorsee of a Note, the property thereof vests in her hus- 
 
 » Ante,%% 58-104. 
 
 = Chitty on Bills, ch. 6, pp. 227-238 (8th edit. 1833) ; Bayley on Bills, 
 ch. 2, § 4, pp. 49, 50 (5tli edit. 1830) ; Id. ch. 5, § 2, pp. 136-156. 
 
 « Dwight V. Newell, 15-111. 333; Moseley v. Graydon, 4 Strobh. 7. 
 
 * Chitty on Bills, ch. 6, pp. 225, 226 (8th edit. 1833) ; Bayley on Bills, 
 ch. 5, § 2, p. 136 (5th edit. 1830) ; Id. ch. 5, § 2, pp. 136, 137; Malbon v. 
 Southard, 36 Maine, 147; Band v. Hubbard, 4 Met. 258; Eawlinson v. 
 Stone, 3 Wils. 1 ; Watkins v. Maule, 2 Jac. 8e Walk. 237. But see Lloyd 
 V. Howard, 1 Eng. Law & Eq. 227, and Bennett's note. 
 
 ^ Artie, I 120 a. 
 
 « Ibid. ; Story on Bills, § 195. 
 
CHAP. IV.] BIGHTS OF PARTIES ON TRANSFERS. 137 
 
 band, and he becomes solely entitled to negotiate it, as 
 holder, and to indorse it in his own name.^ The same rule 
 applies in the case of a Note made payable to a married 
 woman after her marriage. The husband may transfer it 
 in his own name.^ In case of an infant payee or indorsee 
 of a Note, the infant may by his indorsement (which is a 
 voidable act only, and not absolutely void) transfer the in- 
 terest to any subseq^lent holder, against all the parties to the 
 Note except himself; but the indorsement will not bind him 
 personally, or bind his interest in the Note.^ 
 
 § 125. In case of a Note, payable or indorsed to a trustee 
 for the use of a third person (sucjj as a Note payable or 
 indorsed to A, for the use of B), the trustee alone is compe- 
 tent to convey the legal title to the Note, by a transfer or 
 indorsement.* In the case of a partnership, a Note, payable 
 or indorsed to the firm, may be transferred by any one of the 
 partners in the name of the firm,^ at any time during the 
 continuance of the partnership. But where the partnership 
 is dissolved during the lifetime of the partners, neither part- 
 ner can afterwards indorse a Note, payable to the firm, in the 
 name of the firm.^ [But the contrary has been frequently 
 
 ' Ante, § 88 ; Chitty on Bills, ch. 2, p. 2S (8tli edit. 1833) ; Id. ch. 6, pp. 
 225, 226 ; Bayley on Bills, ch. 2, § 3, pp. 47-49 (5th edit. 1830) ; Id. ch. 
 5, § 2, pp. 135, 136 ; Miles v. Williams, 10 Mod. 243, 245; McNeilage v. 
 HoUoway, 1 B._& Al. 218 ; Arnold v. Eevoult, 1 Brod. & Bing. 445 ; Phil- 
 liskirk v. Pluckwell, 2 M. & S. 393; Connor v. Martin, 1 Str. 516; Bur- 
 rough V. Moss, 10 B. & C. 558; Barlow & Bishop, 1 E^st, 432; Miller v. 
 Delamater, 12 Wend. 433. See Smith o. Marsack, 6 C. B. 502. 
 
 2 Ibid. 
 
 ' Chitty on Bills, ch. 2, § 1, pp. 21-24 (8th edit. 1833) ; Id. ch. 6, p. 
 224; Bayley on Bills, ch. 2, § 12, pp. 44-46 (5th edit. 1830) ; Id. ch. 5, 
 § 2, p. 136 ; Story on Bills, § 196. 
 
 * Chitty on Bills, ch. 6, p. 226 (8th edit. 1833) ; Bayley on Bills, ch. 5, 
 § 2, p. 134 (5th edit. 1830) ; Evans v. Gramlington, Carth. 5 ; S. C. 2 
 Vent. n07- Skinn. 264. 
 
 ' Chitty on Bills, ch. 2, p. 67 (8th edit. 1833) ; Id. ch. 6, p. 226 ; Bayley 
 on Bills, ch. 2, § 6, pp. 53, 54 (5th edit. 1830). 
 
 ' Sanford v. Mickles, 4 John. 224; 1 Hill, 572; Story on Partn. § 323; 
 Bayley on Bills, ch. 2, § 6, p. 59 (5th edit. 1830) ; Geortner v. Triistees of 
 Canajoharie, 2 Barb. 625. But see Lewis v. Keilly, 1 Q. B. 349. 
 
138 PROMISSORY NOTES. [CHAP. IV. 
 
 held, especially if the indorsee ^id not know of the dissolu- 
 tion at the time of the indorsement.^] But where the disso- 
 lution is by the death of one partner, there the surviror may 
 indorse a Note, payable to the firm, in his own name.^ The 
 reason of the distinction is, that, in the former case, the im- 
 plied authority for one partner to act for all is gone ; whereas, 
 in the, latter case, the Note, or chose in action, vests ex- 
 clusively in the partner by survivorship, although he must 
 account therefor, as a part of the assets of the partnership.^ 
 If a Note be made payable or indorsed to several persons not 
 partners (as to A, B, and C), there the transfer can only he 
 by a joint indorsement of all of them.* 
 
 § 126. Thus far in respect to the persons by whom the 
 transfer of Promissory Notes may be made. Let us, for a 
 moment, consider to whom the transfer may be made. The 
 transfer may, of course, be made to any person of full age, 
 who is not otherwise incompetent. It may also be trans- 
 ferred to an infant, and thereby the interest will vest in 
 him ; or to a feme covert, and then the interest will vest in 
 her husband, who thereby becomes the legal owner thereof, 
 and may treat it as payable to himself; or he may, at his 
 election, treat it as payable to himself and his wife ; ^ and 
 then, if she survives her husband, he not having reduced the 
 same into possession, she may hold and sue upon the indorse- 
 ment in her own name, for her own use. If the transfer be 
 to a person who is an idiot, or a non compos, or a lunatic, 
 
 ' Temple v. Seaver, 11 Cush. 314 ; Cony v. Wheelock, 33 Maine, 366. 
 
 " Jones V. Thorn, 2 Martin (N. S.), 463. 
 
 » Crawshay v. Collins, 15 Ves. 218, 226. 
 
 * Ibid. ; Carvick v. Yickery, 2 Doug. 653, note ; Story on Bills, § 197 ; 
 Sayre v. Frick, 7 Watts & Serg. 383. A Note payable to the order of A. 
 J. Linn and W. Perkins, and indorsed by one of them, with the assent of 
 the other, Linn & Perkins, though there was no such firm, was held a good 
 indorsement to pass the title. Cooper v. Bailey, 52 Maine, 230. 
 
 ' Bayley on Bills, ch. 2, § 3, pp. 4 7 - 49 (5th edit. 1 830) ; Chitty on Bills, 
 ch. 2, p. 26 (8th edit. 1833); Id. ch. 6, pp. 225, 238 ; Id. Pt. 2, ch. 1, p. 
 556 ; Philliskirk v. Pluckwell, 2 M. & S. 393 ; Richards v. Richards, 2 B. & 
 Ad. 447 ; Burrough v. Moss, 10 B. & C. 558. 
 
CHAP. IV.] BIGHTS OP PARTIES ON TRANSFERS. 139 
 
 there does not seem to be any legal incapacity in holding it 
 to be valid in their favor, if it be clearly and unequivocally 
 for their benefit, as if it be a mere bounty to them. If the 
 transfer be to an executor ^r administrator, or to any person, 
 as trustee for another, it will operate as a transfer to them 
 personally, although the trust may attach upon the proceeds 
 in their hands.^ If the transfer be to an agent, by an indorse- 
 ment of his principal in blank, he may treat the Note, as be- 
 tween himself and all the other parties, except his principal, 
 as his own, and fill it up in his own name ; or he may hold 
 it for his principal, and act in his name.^ If the indorsement 
 be filled up to the agent by the principal, then he is invested 
 with the legal title, as to all persons but his principal. But 
 the principal may, at any time, revoke his authority and 
 reclaim his rights.^ 
 
 § 127. In cases of Promissory Notes held by banks, the 
 question often arises, whether an indorsement thereof by the 
 cashier of the bank, in his ofiicial character, as, for example, 
 indorsed by him, " A B, cashier," is sufficient to pass the titl& 
 of the bank thereto. It is held to be sufiicient, supposing 
 him to possess authority to pass the title, as he is deemed to 
 possess it ex officio, unless prohibited by the by-laws of the 
 corporation.* The same rule will apply to any indorsements 
 
 ' Richards v. Richards, 2 B. & Ad. 447. 
 
 ^ Bayley on Bills, ch. 5, § 2, pp. 132-134 (5th edit. 1830) ; Story on 
 Bills of Exchange, §§ 207, 224 ; Clerk v. Pigot, 12 Mod. 192, 193 ; 1 Salk. 
 126 ; 3 Kent, Lect. 44, pp. 78-81, 89, 90 (4th edit.); Chitty on Bills, ch. 
 6, pp. 255, 256 (8th edit. 1833) ; Bank of Utica v. Smith, 18 John. 230 ; 
 Guernsey v. Burns, 25 Wefad. 411 ; Little y. O'Brien, 9 Mass; 423 ; Ster- 
 ling V. Marietta & Susq. Trad. Co., 11 Serg. & Rawle, 179; Mauran v. 
 Lamb, 7 Cowen, 174 ; Banks v. Eastin, 3 Martin (N. S.), 291 ; Brigham v. 
 Marean, 7 Pick. 40 ; Lovell v. Evertson, 11 John. 52 ; Bragg v. Greenleaf, 
 14 Maine, 396 ; Lowney v. Perham, 20 Maine, 235. But see, contra, 
 Thatcher v. Winslow, 5 Mass. 58 ; Sherwood v. Roys, 14 Pick. 172 ; Wil- 
 son V. Holmes, 5 Mass. 543, 545, per Parsons, Chief Justice. 
 
 ' Ibid. ; Story on Bills, § 198. 
 
 • Fleckner w. Bank of United States, 8 Wheat. 360, 361 ; Wild v. Pas- 
 samaquoddy Bank, 3 Mason, 505. See also Minor v. Mechanics' Bank Of 
 
140 PROMISSORY NOTES. ; [CHAP. IV. 
 
 to the cashier of a bank in the same mode, and the Note 
 will be deemed to be transferred to tlie bank.^ And in cases 
 of an indorsement to a cashier of a bank, as cashier, as, for 
 example, " to A B, cashier," it is competent for the bank to 
 maintain a suit thereon, as upon an indorsement to the cor- 
 poration, or for the cashier to maintain a suit thereon, iji his 
 own name.2 In like manner, an indorsement to the Treas- 
 iirer of the United States, in his official character, will be 
 deemed a transfer to the government, and may be sued on 
 by the government in its own name.^ [But an attorney, to 
 whom a Promissory Note is committed for the purpose of 
 collection by the payee, derives no authority, from the mere 
 fact of the employment, to indorse and transfer the Note, in 
 behalf of his client, to a third person, so as to enable him to 
 maintain an action for the benefit of the payee.*] 
 
 § 128. Promissory Notes may be non-negotiable, and paya- 
 ble to a particular person only, or they may be payable to 
 bearer, or they may be payable to order. And each of these 
 cases, so far as the transfer by indorsement is concerned, may 
 require a distinct consideration. Where a Promissory Note 
 is not . negotiable, if it is indorsed by the payee, it will be 
 binding upon him, and may, as between him and his imme- 
 diate indorsee, possess certain rights, liabilities, and obliga- 
 
 Alexandria, 1 Peters, 46, 70 ; Polger v. Chase, 18 Pick. 63 ; Story on 
 Agency, § 114 ; Hartford Bank v. Barry, 17 Mass. 94 ; Maxwell v. Plant- 
 ers' Bank, 10 Humph. 507; Babcock.u. :Beman, 1 Kernan, 200; Collins v. 
 Johnson, 16 Geo. 458. 
 
 ' See Bank of Manchester u.'Slason, 13 Verm. 334. So a Note pay- 
 able to the order of L. M., President of M. & P. Ins. Co., is payable to the 
 company, and the indorsement of L. M. as President will transfer it. Nich- 
 ols V. Frothingham, 45 Maine, 220 ; Nicholas v. Oliver, 36 N. H. 218. 
 
 ^ Fairfield v. Adams, 16 Pick. 381. It seems also, that in such a case 
 the party who is cashier may personally sue on the same indorsement in 
 his own name. McHenry v. Kidgeley, 2 Scamm. 309 ; Porter v. Nekervis, 
 4 Rand. 359. See also McConnell v: Thomas, 2 Scamm. 313. 
 
 " Dugan V. United States, 8 Wheat. 172. 
 
 • White V. Hildreth, 13 N. H. 104. And see Sainsbury v. Parkinson, 
 20 Eng. Law & Eq. 351 ; Child v. Powder Works, 44 N. H. 354. 
 
CHAP. ly.J EIGHTS OF PARTIES ON TRANSFERS. 141 
 
 tions, capable of being enforced against him.^ But as 
 between him and subsequent holders, either no liabilities 
 and obligations at all may exist at law, or very different 
 rights, or qualified rights, and liabilities, and obligations 
 only.^ In respect to the immediate indorsee of the payee of 
 a non-negotiable Note, the indorsement will ordinarily create 
 the same liabilities and obligations, on the part of the payee, 
 as the indorsement of a negotiable Note.^ In respect to 
 
 ' Story on Bills, §§ 60, 199, 202; Chitty on Bills, ch. 6, pp. 265, 266 (Sth 
 edit.) ; Bayley on Bills, ch. 5, § 1, pp. 120, 121 (Sth edit.) ; Hill v. Lewis, 
 1 Salk. 132 ; White v. Low, 7 Barb. 204 ; Elkinton v. Fennimore, 13 Penn. 
 173 ; Macy v. Kendall, 33 Mo. 164 ; Heifer v. Alden, 3 Minn. 332. The 
 simple indorsement of a non-negotiable Note is an absolute promise to pay, 
 not conditional upon demand and notice. Peddicord v. Whittam, 9 Iowa, 
 471 ; Long v. Smyrer, 3 Clarke (lo.), 226 ; Wilson v. Ralph, lb. 450. 
 
 " Plimley v. Westley, 2 Bing. N. Cas. 249, 251 ; Penny v. Innes, 1 C.,M. 
 & R. 439. [In Massachusetts such an indorser may be treated as an origi- 
 nal promisor, or as a guarantor. Sweetser v. French, 2 Cush. 309.] 
 
 ' Story on Bills, §§ 119, 199, 202; Bayley on Bills, ch. 5,-§ 1, pp. 120, 
 121 (5th edit); Chitty on Bills, ch. 6, § 1, p. 219 (Sth edit.); Hill </. 
 Lewis, 1 Salk. 132 ; Josselyn v. Am^s, 3 Mass. 274 ; Jones v. Fales, 4 Mass. 
 245; Sanger «. Stimpson, 8 Mass. 260 ; Jones i'. Witter, 13 Mass. 305 ; 3 
 Kent, Lect. 44, p. 77 (5th edit.), and note; Gadcomb v. Johnson, 1 Verm. 
 136 ; Upham v. Prince, 12 Mass. 14; Commercial Bank v. Wood, 7 Watts 
 & Serg. 89 ; Sweetser v. French, 2 Cush. 310. But see Smallwood u. Ver- 
 non, 1 Str. 478; Plimley v. Weslley, 2 Bing. N. Cas. 249, 251; Penny v. 
 Innes, 1 C, M. & R. 439; Parker v. Riddle, 11 Stanton, Ohio, 102. In 
 the case of Seymour v. Van Slyck, 8 Wend. 403, 421, the Supreme Court 
 of New York held, that an indorsement by the payee of a negotiable Note 
 was equivalent to the making of a new Note ; and that is a guaranty that 
 the Note will be paid, and a direct and positive undertaking on the part of 
 the indorser to pay the Note to the indorsee, and not a conditional one to 
 pay the Note, if the maker does not, upon demand and notice. [And such 
 is the decision in Sweetser v. French, 2 Cush. 309.] It does not appear to 
 me that the authorities cited by the Court upon that occasion support the 
 doctrine. The nearest is the case of Smallwood v. Vernon, 1 Str. 478; 
 and that is, upon its own circumstances, clearly distinguishable. The pre- 
 ceding authorities, above cited, are certainly the other way. The case of 
 Josselyn v. Ames, 3 Mass. 275, is difficult to understand, from the imperfect 
 manner in which it is stated in the report. In Plimley v. Westley, 2 Bing. 
 N. Cas. 249, the Court seemed to think that the payee of a non-negotiable 
 Note had no authority to indorse it ; and the holder could neither sue the 
 
142 PROMISSORY NOTES. [CHAP. IV. 
 
 every subsequent holder, no privity or connection is, at law, 
 created between the payee and such holder, unless the payee, 
 
 indorsee, nor the indorsee the maker. Probably the Court meant (for the 
 report is obscure), that the last holder could not sue the immediate indorsee 
 of the payee, he not being his own immediate indorser, nor'the first indor- 
 see the maker. This seems regularly correct. But the Court added that, 
 if there had been a second stamp on the Note, the indorsement of the im- 
 mediate indorser to the holder might, as between them, male such ipdorser 
 liable as the maker of a new Note. But Gwinnell v. Herbert, 5 A. & El. 
 436, held, that the indorser of a negotiable Note does not stand in the situ- 
 ation of a maker of a Note, even where he is not the payee thereof, and 
 it is not indorsed to him, and where, consequently, his indorsee cannot sue 
 the original maker. According to our law in such a case, he might, if there 
 was a sufficient consideration, be treated as a guarantor to his immediate 
 indorsee. See post, § 133, and the authorities there cited. Mr. Chitty, in 
 the 9th edition of his work on Bills, Pt. 1, ch. 12, pp. 528, 529, says: 
 " There is, however, one important distinction between Bills and Notes, as 
 regards the liability arising from an indorsement ; with respect to Bills of 
 Exchange, we have seen that every indorser is in the nature of a new 
 drawer, but the indorser of a Promissory Note does not stand in the situa- 
 tion of maker relatively to his indorsee ; nor can the indorsee of a Note 
 declare against his indorser as maker, even where the latter has indorsed a 
 Note not payable or indorsed to him, and where, consequently, his indorsee 
 cannot sue the original maker. The distinction between the two cases is 
 obvious ; in allowing the indorser of a Bill to be treated as a new drawer, 
 the indorser's liability is not altered ; it still remains secondary or collateral 
 only ; but to suffer the indorser of a Note to be charged as maker would 
 be at once to render the indorser's liability primary and immediate, and to 
 place him in the situation of the acceptor of a Bill." For this, the author 
 relies on the language of the learned Court in Gwinnell v. Herbert, 5 A. & 
 El. 441, where, indeed, the Court seem to have relied upon a supposed dis- 
 tinction between the indorser of a Note, and the drawer or indorser of a 
 Bill. I agree that the indorser of a Note cannot properly be treated as the 
 maker thereof, whether he be the payee or indorsee thereof, or a third per- 
 son. But I am unable to perceive why he does not stand in the same situ- 
 ation as the drawer or indorser of a Bill. In each case the indorsement 
 creates a collateral liability only. The maker of a Note, and the acceptor 
 of a Bill, are the primary parties to pay the same. Every indorsement 
 upon an accepted Bill is precisely, in effect, the same as an indorsement of 
 a Note ; and each imports the same liability to the holder. It is a request 
 to the maker or acceptor, to pay the amount to the holder, and an agree- 
 ment, upon its dishonor at maturity and due notice of the dishonor, to pay 
 the same to the holder. Why, then, is not the indorser of a Note in the 
 very predicament^ of the drawer or indorser of a Bill, as to his liability 
 upon such dishonor ? 
 
CHAP. IV.] RIGHTS OF PARTIES ON TRA^fSFERS. 143 
 
 by his indorsement, makes it expressly payable to his indorsee 
 or order, or he expressly promises to pay the Note to the 
 holder in consideration of the indorsement ; and, therefore,, 
 ■such holder cannot, except under such circumstances, bring 
 any suit at law in his own name against the payee, upon the 
 dishonor of the Note.^ Still, however, in such a case, such 
 holder is ndft without his remedy against the payee, and also 
 against the maker. He may ordinarily use the name of the 
 payee against the maker, in an action at law, and that of 
 the immediate indorsee of the payee against the latter, in 
 an action at law to recover the debt.^ And, in Equity, he 
 may, without question, maintain a suit in his own name 
 against the maker, and against the payee, and, indeed, 
 against every intermediate indorser between his immediate 
 indorser and the antecedent indorsers.^ 
 
 § 129. The reason for this doctrine is, that every indorse- 
 ment operates in legal contemplation between the parties 
 thereto, as the drawing of a Bill of Exchange by the indorser 
 in favor of the immediate indorsee. It is, in fact, a request 
 of the indorser, that the maker (who stands in this respect 
 very much in the situation of an acceptor) would pay the 
 amount to the indorsee, or to any other holder, if the indorse- 
 ment is not restrictive.* Indeed, it may be treated, with 
 
 ' Ibid. But see Birleback v. Wilkins, 10 Harris, 26. 
 
 * Story on Bills, §§ 60, 199; Bayley on Bills, ch. 5, § 1, p. 120 (5th 
 edit.); Jones u. Witter, 13 Mass. 305; Grover v. Grover, 24 Pick. 261; 
 Story on Eq. Jurisp. §§ 1056 - 1057 a. But see Hammond v. Messenger, 9 
 Sim. 327; Kose v. Clarke, 1 Younge & Coll. New E. 539, 545; Kimball v. 
 Huntingdon, 10 Wend. 675 ; Hamilton v. McDonald, 18 Cal. 128; Heifer 
 V. Alden, 3 Min. 332. 
 
 ' Ibid. 
 
 ' Bayley on Bills, ch. 5, § 1, pp. 120, 121 (5th edit.) ; Chitty on Bills, 
 ch. 6, p. 219 (8th edit.) ; Id. 226 ; Ballingalls v. Gloster, 3 East, 481 ; Sla- 
 cum V. Pomeroy, 6 Cranch, 221. See SmaUwood v- Vernon, 1 Str. 478 ; 
 Van Staphorst v. Pearce, 4 Mass. 258 ; Field v. Nickerson, 13 Mass. 131, 
 136 ; Story on Bills, §§ 107, 118, 119 ; Penny v. Innes, 1 C, M. & R. 439. 
 But see Gwinnell v. Herbert, 5 A. & El. 436 ; Plimley v. Westley, 2 Bing. 
 N. Cas. 249; ante, § 128, note. 
 
144 PEOMISSOEY NOTES. . [CHAP. IV. 
 
 strict propriety, as an authority given to the indorsee to 
 receive the money due on the Note, and also as an under- 
 taking, tliat it shall be paid to him upon due presentment ; 
 and therefore, as involving, in case of dishonor, and due 
 notice thereof, the ordinary responsibility of au indorser of 
 negotiable paper.'' But the same considerations do not apply 
 to a subsequent indorsee under the immediate indorsee of 
 the payee of a non-negotiable Note ; for the like privity does 
 not necessarily exist between them. 
 
 § 130. There is, indeed, one exception to the general rule 
 above stated, and that is, where an assignment is made by, 
 or to, the sovereign or government, of a non-negotiable in- 
 struinent, or other debt or chose in action ; for, in such a 
 case, the indorsement or assignment by, or to, the sovereign 
 or government, creates the same liabilities as if the instru- 
 ment were originally assignable. The reason is, that the 
 principle of the Common Law, which prohibits the assign- 
 ment of clioses in action, is, that it shall not be the means of 
 stirring up and multiplying litigation between debtors and 
 third persons, or to enable the rich and powerful to oppress 
 those who are in the unfortunate state of dependent and 
 embarrassed debtors. Such a reason is inapplicable to the 
 sovereign or government, who can never be presumed to 
 be the abettor, or minister, of any injustice to the subjects, 
 or citizens, and can have no interest but to act for the pub- 
 lic benefit.^ 
 
 § 131. In the Civil Law, and in the jurisprudence of the 
 modern commercial nations of Continental Europe, there 
 does not seem to have been any foundation for such an objec- 
 tion to the assignment of debts ; for all debts were, from an 
 early period, allowed to be assigned, if not formally, at least 
 
 ' Ibid. 
 
 ^ Chitty on Bills, ch. 6, p. 219 (8tli edit.) f Id. p. 252; Lambert v. Taylor, 
 4 B. & C. 138, 150, 151 ; 2 Story on Eq. Jurisp. §§ 1039, 1040 ; Co. Litt. 232 
 6, Butler's note (1) ; Prosser v. Edmonds, 1 Younge & Coll. 499 ; Soafford 
 i>. Bulkley, 2 Ves. 171, 181 ; Miles v. Williams, 1 P. Will. 252; U. States 
 V. Buford, 3 Peters, 30 ; U. States v. White, 2 Hill, 59. 
 
CHAP. IV.] EIGHTS OF PARTIES ON TRANSFERS. 145 
 
 in legal effect ; and for the most part, if not in all cases, they 
 may be sued for in the name of the assignee.^ The Code of 
 
 ' Pothier has stated the old French law upon this subject (which does not 
 in substance probably differ from that of the other modern states of Con- 
 tinental Europe) in very explicit terms, in his Treatise on the Contract of 
 Sale, of which an excellent translation has been made by L. S. Gushing, 
 Esq. The doctrines therein stated are in many respects so nearly coinci- 
 dent with those maintained by our Courts of Equity, that I have ventured 
 to transcribe the following passages from Mr. Cushing's worls. " A credit 
 being a personal right of the creditor, a right inherent in his person, it can- 
 not, considered only according to the subtlety of the law, be transferred to 
 another person, nor consequently be sold. It may well pass to the heir of 
 the creditor, because the heir is the successor of the person and of all the 
 personal rights of the deceased. But, in strictness of law, it cannot pass to 
 a third person ; for the debtor, being obliged towards a certain person, can- 
 not, by a transfer of the credit, which is not an act of his, become obliged 
 towards another. The jurisconsults have, nevertheless, invented a mode 
 of transferring credits, without either the consent or the intervention of the 
 debtor, — as the creditor may exercise against his debtor, by a mandatary, 
 as well as by himself, the action, which results from his credit. When he 
 wishes to transfer his credit to a third person, he makes such person his 
 mandatary, to exercise his right of action against the debtor; and it is 
 agreed between them, that the action shall be exercised by the mandatary, 
 in the name indeed of the mandator, but at the risk and on the account of 
 the mandatary, who shall retain for himself all that may be exacted of the 
 debtor in consequence of the mandate, without rendering any account 
 thereof to the mandator. Such a mandatary is called, by the jurisconsults. 
 Procurator in rem suam, because he exercises the mandate, not on account 
 of the mandator, but on his own. A mandate, made in this manner, is, as 
 to its effect, a real transfer, which the creditor makes of his credit ; and if 
 he receives nothing from the mandatary, for his consent, that the latter shall 
 retain to his own use what he may exact of the debtor, it is a donation,; if, 
 for this authority, he receives a sum of money of the mandatary, it is a sale 
 of the credit. From which it is established in practice, that credits may be 
 transferred, and may be given, sold, or disposed of by any other title ; and 
 it is not even necessary that the act which contains the transfer should ex- 
 press the mandate, in which, as has been explained, the transfer consists. 
 The transfer of an annuity or other credit, before notice of it is given to 
 the debtor, is what the sale of a corporeal thing is, before the delivery ; in 
 the same manner, that the seller of a corporeal thing, until a delivery, re- 
 mains the possessor and proprietor of it, as has been established in another 
 place. So, until the assignee notifies the debtor of the assignment made to 
 him, the assignor is not devested of the credit which he assigns. This is the 
 10 
 
146 PROMISSORY NOTES. [CHAP. IV. 
 
 Justinian says : " Nominis autem vendito " (distinguishing 
 betweep the sale of a debt, and the delegation or substitution 
 
 provision of art. 108 of the Custom of Paris : ' A simple transfer does not 
 devest, and it is necessary to notify the party of the transfer, and to furnish 
 him with a copy of it.' From which it follows, first, that, before notice, the 
 dBbtor may legally pay to the assignor, his creditor ; and the assignee has 
 ne action in such case, except against the assignor, namely, the action ex 
 empto, ut prsestet ipsi habere licere ; and, consequently, that he should re- 
 mit to him the sum, which he is no longer able to exact of the debtor, who 
 has legally paid the debt to the assignor. Second, that, before notice, the 
 creditors of the assignor may seize and arrest that which is due from the 
 debtor, whose debt is assigned ; and they are preferred to the assignee, who 
 has not, before such seizure and arrest, given notice of the assignment to 
 him; the assignee, in this' case, is only entitled to his action against the 
 assignor, namely, the action ex empto, in order that the latter prsestet ipsi 
 habere licere ; and, consequently, that he should report to him a removal 
 of the seizures and arrests, or pay him the sum, which, by reason thereof, 
 he is prevented from obtaining of the debtor. Third, that if the assignor, 
 after having transferred a credit to a first assignee, has the bad faith to 
 make a transfer of it to a second, who is more diligent than the first, to 
 give notice of his assignment to the debtor, the second assignee will be pre- 
 ferred to the first, saving to the first his recourse against the assignor. 
 Though the assignee notifies to the debtor the assignment to him, the assign- 
 or, in strictness of law, remains the creditor, notwithstanding the transfer 
 and notice ; and the credit continues to be in him. This results from the 
 principles established in the preceding article. But quoad juris effectus, 
 the assignor is considered, by the notice of the transfer given to the debtor, 
 to be devested of the credit, which he assigns ; and is no longer regarded 
 as the owner of it ; the assignee is considered to be so ; and therefore the 
 debtor cannot afterwards legally pay the assignor ; and creditors of the 
 assignor cannot, from that time, seize and arrest the credit, because it is no 
 longer considered to belong to their debtor. Nevertheless, as the assignee, 
 even after notice of the transfer, is only the mandatary, though in rem suam, 
 of the assignor, in whose person the credit, in truth, resides ; the debtor 
 may oppose to the assignee a compensation of what the assignor was in- 
 debted to him, before the notice of the assignment ; which, however, does 
 not prevent him from opposing also a compensation of what the assignee 
 himself owes him ; the assignee being himself, non quidem ex juris subtili- 
 tate, sed juris effectu, creditor." Pothier on Sales, by Gushing, n. 550, 
 555-559. The modern French law has gotten rid of the subtlety as to the 
 suit being brought in the name of the assignor npon contracts generally ; 
 for it may now (whatever might have been the case formerly) be brought 
 in the name of the assignee, directly against the debtor. See Troplong, 
 
CHAP. IV.] EIGHTS OF PARTIES ON TEANSFEES. 147 
 
 of one debtor for another, for the same debt), " et ignorante, 
 vel invito eo, adversus quem actiones mandantur, contrahi 
 solet." ^ And Heineccius, after remarking that Bills of Ex- 
 change are for the most part drawn payable to a person or 
 his order, says that, although ' this form be omitted, yet an 
 indorsement thereof may have full effect, if the laws of the 
 particular country, respecting exchange, do not specially 
 prohibit it ; because an assignment thereof may be made 
 without the knowledge, and against the will, of the debtor ; 
 and he refers to the passage in the Code in proof of it.^ But 
 he adds (which is certainly not our law), that if the Bill be 
 drawn payable to the order of Titius, it is not to be paid to 
 Titius, but to his indorsee. " Tunc enim Titio solvi non po- 
 test, sed ejus indossatario." ^ The same general doctrine as 
 to the assignability of Bills of Exchange, payable to a party, 
 but not to his order, is affirmed in the Ordinance of Prance 
 of 1673 (art. 12), as soon as the transfer is made known to 
 the drawee or debtor.* Indeed, the like doctrine prevails 
 
 Des Privil. et Hypoth. Tom. 1, n. 340-343; Code Civ. of France, art. 
 2112; Id. 1689-1692; Troplong, De la Vente, n. 879-882, 906, 913. 
 
 ' Cod. Lib. 8, tit. 42, 1. 1 ; 1 Domat, B. 4, tit. 4, §§ 3, 4. 
 
 " Heineoc. de Camb. cap. 2, § 8; Id. cap. 3, §§ 21 - 25. Heineccius, in 
 a note, says, that in Franconia and Leipsio no assignment is of any validi- 
 ty, if the formula of its being payable to order is omitted. The present law 
 of France is the same, so far as the general negotiability of Bills is con- 
 cerned, and to give them circulation, unaffected by any equities between 
 the payee and the debtor, as will be seen in the sequel. Pardessus, Droit 
 Comm. Tom. 2, art. 339, p. 360; Delvincourt, Instit. Droit Comm. Tom. 1, 
 Liv. 1, tit. 7, Ft. 2, p. 114, 115. Delvincourt says, that the right of a sam- 
 ple Bill (not payable to order) is transferable only by an act of transfer 
 made known to the debtor. See also Merlin, Kepert. Lettre et Billet de 
 Change, §§ 4, 8, pp. 196, 252 (edit. 1827). 
 
 ' Heinecc. de Camb. cap. 2, § 8. 
 
 ' Jousse, Sur L'Qrd. 1673, art. 30, p. 123. The article, andjousse's 
 commentary, are as follows: Art. 30, "Les Billets de Change, payables k 
 un particulier y nomme, ne seront reputez appartenir h autre, encore qu'il 
 y eut un transport signifie, s'ils he sont payables au porteur, ou k ordre. 
 Les Billets de Change. La disposition contenue en cet article ne doit pas 
 s'etendre aux autres billets, parce que suivant le droit commun on peut dis- 
 poser des billets et promesses par obligation et transport, et que le trans- 
 
148 PEOMISSORY NOTES. [CHAP. IV. 
 
 now in Prance, not only in cases of Bills of Exchange, but of 
 contracts generally ; so that the assignee may now sue there- 
 for in his own name, after the assignment, subject, however, 
 to all the equities subsisting between the parties before and 
 at the time when the debtor has notice of the assignment.^ 
 
 port, signifle saisit celui au profit de qui il est fait, suivant la disposition de 
 I'article 108 de la Coutume de Paris. La raison pour laquelle I'Ordonnance 
 deroge ici au droit commun, k I'^gard' des billets de change, payables k un 
 partieulier y nomme, et afin d'abolir I'usage des transports et significations 
 en cette matifere, qui est proprement de n^goce, et ou tout doit etre som- 
 maire. Neanmoins en examinant plus particulierement le sens de cet arti- 
 cle, il paralt, que I'esprit de I'Ordon, n'est pas d'abolir I'usage des transports 
 des billets de change, qui ne sont point payables au porteur, ou k ordre : 
 car il semble qu'on ne peut emp§cher un partieulier propridtaire d'un billet 
 de cette espeoe de transferer la propriete de ce billet k celui au profit de 
 qui le transport aurait dte consenti. En efiet, si Ton fait attention, que 
 I'esprit de I'Ordonnance est de conserver au debiteur, qui a consenti des 
 billets payables k un partieulier, les memes exceptions contre les cession- 
 naires de ces billets, que celles que le debiteur lui-m6me aurait pu opposer 
 au creancier, qui en dtait originairement proprietaire, sans distinguer, si la 
 cession ou transport a dte signifiee ou non, il sera aisd de se convaincre, que 
 I'Ordonnance n'a jamais eu intention d'abolir I'usage des cessions et trans- 
 ports en maitere de billets de change, qui ne sont point payables au porteur 
 ou k ordre, mais qu'elle a seulement entendu marquer en cet article la dif- 
 ference, qu'il y a entre les billets payables k un partieulier y nomme, et les 
 billets payables au porteur ou k ordre. Dans les billets payables au por- 
 teur ou k ordre, celui, qui en est le porteur, n'a pas k craindre, que le debi- 
 teur puisse lui opposer aucune exception du chef de son cedant, le porteur, 
 quel qu'il soit, en etant le veritable proprietaire, ainsi que s'il avait 4te 
 originairement consenti en sa faveur. Mais dans les billets payables k un 
 partieulier y nomme, le cessionnaire ne peut jamais avoir plus de droit que 
 ce partieulier, et ne peut dviter par consequent que toutes les exceptions, 
 qui auront pu Stre opposees k ce partieulier, ou cddant, ne puissent lui etre 
 opposdes k lui-meme. C'est dans ce mgme sens que les articles 18 et 19 de 
 ce titre distinguent au sujet du paiement d'une lettre adhir6e, si cette lettre 
 est payable k un partieulier y nomme, ou si elle est payable au porteur ou 
 k ordre': le paiement dans le premier cas pouvant etre fait sans aucune 
 precaution, en vertu d'une seconde lettre ; au lieu que dans le second cas 
 le paiement ne peut gtre fait que par Ordonnance du Juge, et en donnant 
 caution." 
 
 ' Pardessus, Droit Comm. Tom. 5, art. 313 ; Troplong, Des Privil. et 
 Hypoth. Tom. 1; Troplong, De la Vente, n. 879-913; Code Civil of 
 France, art. 1689-1693; Id. art. 2112; Id. art. 1295; Locrd Esprit du 
 
CHAP. IV.] EIGHTS OF PARTIES ON TRANSFERS. 149 
 
 In Scotland, it has been long settled, that the words " or 
 order " are not necessary to make a Promissory Note nego- 
 tiable by indorsement, and that a Note may be effectually in- 
 dorsed without them by the payee.^ 
 
 § 132. Although a Note payable to bearer is, as we have 
 seen, transferable by mere delivery, it may also be transferred 
 by indorsement of the payee, or of any other subsequent 
 holder. In such a case, the indorser incurs the same liabil- 
 ities and obligations as the indorser of a negotiable Note, 
 payable to order, from many of which, in the case of a mere 
 transfer by delivery, he is exempt.^ "Where a Note is origi- 
 
 Code de Comm. Tom. 1, Liv. 1, tit. 8, p. 342 ; Pothier, De Vente, n. 551 - 
 560 ; Story on Bills, § 19 ; 2 Story on Eq. Jurlsp. § 1040 a. Mr. Chitty 
 (on Bills, ch. 6, p. 218, 8th edit; Id. Pt. 1, ch. 6, p. 196, 9tli edit. 1840) 
 says : " In France it is absolutely essential that Bills be drawn expressly 
 payable to order, and they must not be payable to bearer ; and it appears 
 that the Bills were not transferable in France by the Law Merchant, 
 but by a particular ordinance." Mr. Chitty here probably alludes to the 
 ordinance of 1763, art. 30. Now it is manij^t, from Jousse's commentary 
 on this very article (Jousse, Sur L'Ord. 1673, p. 123), that the article 
 is not only an exception to the general law, but that it does not restrain 
 the assignability of such instruments, but only leaves it open to all the 
 equities between the original parties. The contrary of which is true as to 
 Bills of Exchange payable to order, which are not open to the like equities. 
 Pothier (De Change, n. 221, 222) does not inculcate a different doctrine ; 
 but only suggests, as one of the differences between Bills of Exchange and 
 Promissory Notes payable to order, that even the latter are not entitled to 
 the peculiar privileges of Bills, but are treated as mere simple Notes (sim- 
 ples billets), when the maker is not a merchant, or banker, or state finan- 
 cier. Pardessus (Droit Comm. Tom. 2, art. 313) is to the same effect. 
 See also Troplong, De Vente, n. 879 - 913 ; Code Civil of France, art. 
 1689 - 1693 ; Id. art. 2112 ; Id. art. 1295 ; Locre Esprit du Code de Comm. 
 Tom. 1, Liv. 1, tit. 8, p. 342 ; Pothier, De Vente, n. 551-560. The mod- 
 ern Code of Commerce of France (art. 110, 188) seems to require that all 
 Bills of Exchange and Promissory Notes, to have the privileges appropriate 
 to each, should be payable to order. 
 
 1 Thomson on Bills, ch. 1, § 2, p. 85 (2d edit.) ; Id. ch. 3, p. 256 ; 3 Kent, 
 Lect. 44, p. 77, note (5th edit.). 
 
 ^ Story on Bills, § 200 ; Bayley on Bills, ch. 5, § 1, pp. 120, 121 (5th 
 edit.) ; Chitty on Bills, ch. 6, pp. 219, 220 (8th edit.) ; Waynam v. Bend, 
 1 Camp. 175 ; Brush v. Reeves, 3 John. 439 ; Eccles v. Ballard, 2 McCord, 
 
150 PROMISSORY NOTES. [CHAP. IV. 
 
 iially payable to bearer, and is indorsed, it would seem, upon 
 principle, that the holder might, as against the maker, de- 
 clare upon it as a bearer, or as indorsee, at his election ; and 
 this seems to be the weight of authority, although the de- 
 cisions are not, perhaps, entirely reconcilable.' Where a 
 Note is payable to a fictitious person or order (which is 
 sometimes although rarely done), and it is indorsed in the 
 name of such fictitious person, it will be deemed a Note pay- 
 able to bearer, as to all bona fide holders, without notice of 
 the fiction, and entitle them, as against the maker, and 
 all prior real indorsers, to the like remedy as if the Bill 
 were payable to bearer.^ It would be otherwise, if the 
 holders had notice of the fiction, when the Bill was re- 
 ceived.^ 
 
 § 133. In some cases it is a matter of considerable nicety, 
 to decide in what character a party stands upon a Promissory 
 Note, in virtue of his indorsement thereof. It is plain, that 
 if he is the payee 'of the Note, whether negotiable or not, he 
 is (as has been already stated *) to be deemed regularly liable 
 as an indorser.^ But, suppose he is not the payee of the 
 Note, but he indorses it, what is the nature and efiect of 
 such an indorsement ? If he signs it at the time when the 
 
 S. C. 388 ; Wilbour v. Turner, 5 Pick. 526 ; Dole v. Weeks, 4 Mass. 451 ; 
 Gilbert u. Nantucket Bank, 5 Mass. 97 ; Truesdell v. Thompson, 12 Met. 
 565 ; Tillman v. Allies, 5 Sm. & Mar. 373. 
 
 ' See Bay ley on Bills, eh. 11, pp. 466, 467 (5th edit.) ; Chitty on Bills, 
 ch. 6, § 1, p. 220 (8th edit.) ; 3 Kent, Lect. 44, p. 78 (5th edit.) ; Waynam 
 V. Bend, 1 Camp. 175 ; Wilbour v. Turner, 5 Pick. 526. 
 
 = Chitty on Bills, ch. 5, pp. 178, 179 (8th edit.) ; Id. ch. 6, p. 252; Bay- 
 ley on Bills, ch. 1, § 10, pp. 31, 32 (5th edit.) ; Id. ch. 9, p. 383 ; 3 Kent, 
 Lect. 44, p. 78 (5th edit,); Plets v. Johnson, 3 Hill, 112; Story on 
 Bills, § 200 ; Blodgett v. Jackson, 40 N. H. 21. 
 
 » Bennet v. Farnell, 1 Camp. 130 ;' Id. p. 133, note ; Id. 180, J, c, § 9, of 
 Addenda ; Hunter v. Jeflfery, Peake, Add'l Cas. 146 ; Cooper v. Meyer, 10 
 B. & C. 469 ; Maniort v. Roberts, 4 E. D. Smith, 83. 
 
 ' Anie,% 128. 
 
 ^ [In Massachusetts, a payee of a non-negotiable Note, who indorses it, 
 may be treated by the holder as an original promisor. Sweetser v. French, 
 2 Cush. 309.] 
 
CHAP. IV.] EIGHTS OF PARTIES ON TKANSFEKS. 161 
 
 Note is made, then he will ordinarily be deemed a guarantor 
 of the Note upon the footing of the original consideration ; ^ 
 and if he indorses it subsequently, not being a regular in- 
 dorsee from or under any of the antecedent parties, he will, 
 in like manner, still be deemed a guarantor, if there be a 
 sufficient consideration for his indorsement ; but not other- 
 
 wise 
 
 2 
 
 § 134. Where a person makes an indorsement in blank on 
 a Bill, it will not be construed to be a guaranty, unless where 
 such a construction is indispensable to. give some effect to the 
 indorsement, and to prevent an entire failure of the express 
 or presumed contract. Thus, if a Bill be negotiable, and 
 the payee should indorse it in blank, the indorsement will 
 • not inure as a guaranty, but simply as the contract of an in- 
 dorser. The like rule will prevail if the indorsement is 
 made by any other person than the payee,^ for he may be well 
 deemed as intending to stand in the character of a second in- 
 dorser after the payee, although he was privy to the original 
 consideration between the drawer and the payee, and in- 
 dorsed it for the accommodation of the drawer.* But it 
 
 ' Ante, § 59, and note ; post, §§ 463 - 476 ; 3 Kent, Lect. 44, p. 122 (5tli 
 edit.) ; Leonard v. Vredenburgh, 8 John. 29. See Bailey v. Freeman, 11 
 John. 221 ; Nelson v. Dubois, 13 John. 175 ; DeWolf v. Eabaud, 1 Peters, 
 476 ; Hunt v. Adams, 5 Mass. 358 ; Oxford Bank v. Haynes, 8 Pick. 423 ; 
 Joslyn V. CoUinson, 26 111. 61 ; Perkins v. Barstow, 6 R. I. 505. 
 
 2 Chitty on Bills, ch. 6, p. 266 (8th edit.) ; Morley v. Boothby, 3 Bing. 
 107. See also Herrick v. Carman, 12 John. 159 ; Tillman v. Wheeler, 17 
 John. 326 ; Aldridge v. Turner, 1 Gill & John. 427 ; Lamourieux v. Hewit, 
 5 Wend. 307; Longley u. Griggs, 10 Pick. 121; Watson v. McLaren, 19 
 Wend. 557 ; Tenney v. Prince, 4 Pick. 385 ; Oxford Bank v. Haynes, 8 
 Pick. 423; Seabury u. Hungerford, 2 Hill, 80; Miller v. Gaston, 2 Hill, 
 188; Hall v. Newcomb, 3 Hill, 232; Sylvester u. Downer, 20 Verm. 355. 
 See post, §§ 458 - 461. Under the statute of Iowa a written guaranty of a 
 Promissory Note imports a consideration. Sabin v. Harris, 12 Iowa, 308. 
 
 ' See Howe v. Merrill, 5 Gush. 80. 
 
 • Seabury v. Hungerford, 2 Hill, 84 ; Hall v. Newcomb, 3 Hill, 233 ; El- 
 lis V. Brown, 6 Barb. 282; Taylor v. M'Cune, 1 Jones, Penn. 461 ; Crozer 
 V. Chambers, 1 Spencer, N. J. 256 ; Fear v. Dunlap, 1 Greene, lo. 334 ; 
 Davis V. Barron, 13 Wis. 227. 
 
152 PROMISSORY NOTES. [CHAP. IV. 
 
 ■would have been otherwise if the Bill had not been negotia- 
 ble ; for then the indorsement would be utterly unavailable, 
 unless as a guaranty.^ 
 
 § 135. Passing from these considerations, which apply to 
 peculiar cases, let us now consider the general rights, duties, 
 and obligations arising from the indorsement of Promissory 
 Notes, payable to a person, or his order. Indorsements may 
 be in blank or in full, restrictive or general, qualified or 
 conditional ; but of these we shall speak hereafter.^ At 
 present, what will be here said is applicable to all indorse- 
 ments, which are either in blank or full, and are, of course, 
 payable to the indorsee or order generally. The indorse- 
 ment of a Note, in contemplation of law, amounts to a con- 
 tract on the part of the indorser with and in favor of the in- 
 dorsee, and every subsequent holder, to vrhom the Note is 
 transferred : (1.) That the instrument itself and the antece- 
 dent signatures thereon are genuine.^ (2.) That he, the 
 indorser, has a good title to the instrument. (3.) That he 
 is competent to bind himself by the indorsement, as indorser. 
 (4.) That the maker is competent to bind himself to the. pay- 
 ment, and will, upon due presentment of the Note, pay it at 
 maturity, or when it is due. (5.) That if, when duly pre- 
 sented, it is not paid by the maker, he, the indorser, will, 
 upon due and reasonable notice given him of the dishonor, 
 pay the same to the indorsee or other holder.* The French 
 
 " Ibid. ; Story on Bills, § 215. 
 
 « Post, § 138. 
 
 ' Post, §§ 380, 387. 
 
 • Story on Bills, §§ 108-111, 119, 127, 225, 262, and the authorities 
 there cited; Chitty on Bills, eh. 6, pp. 2,69, 270 (8th edit.) ; Id. Pt. 2, ch. 
 5, pp. 635, 636; Jones v. Ryde, 5 Taunt. 488; Free v. Hawkins, Holt, N. 
 P. 550 ; Bruce v. Bruce, 1 Marshall (Eng.), 165 ; Murray v. Judah, 6 
 Cowen, 484 ; Burrill v. Smith, 7 Pick. 291, 294, 295. These I conceive to 
 be the true implications of contracts resulting from the act of indorsement 
 of a Promissory Note. Mr. Bailey has not expressed himself with his usual 
 clearness and precision on this subject. In Bayley on Bills, ch. 1, § 15, 
 p. 43 (5th edit.), it is said : " The act of drawing a Bill implies an under- 
 taking from the drawer to the payee, and to every other person to whom 
 
CHAP. IV.] EIGHTS OF PARTIES ON TRANSFEES. 163 
 
 la-w, with some not very important distinctions, imports simi- 
 lar obligations on the part of the payee, and every subsequent 
 
 tie Bill may be afterwards transferred, that the drawee is a person capable of 
 making himself responsible for its payment ; that he shall, if applied to for that 
 purpose, express in writing upon the Bill an undertaking to pay it when it 
 shall become payable, and that he shall then pay it ; and subjects the drawer, 
 on a failure in any of these particulars, to an action at the suit of the 
 payee or holder. The making of a Note is an express engagement of the 
 payee or person to whom it shall be transferred to pay the money men- 
 tioned therein, according to its tenor." And again, in ch. 5, § 3, p. 169 
 (5th edit.) : " The indorsement of a Bill or Note implies an undertaking 
 from the indorser to the person in whose favor it is made, and to every 
 other person to whom the Bill or Note may afterwards be transferred, ex- 
 actly similar to that which is implied by drawing a Bill, except that in the 
 case of a Note, the stipulations with respect to the drawer's responsibility 
 and undertaking do not apply ; and a transfer by delivery only, if made 
 on account of an antecedent debt, implies a similar undertaking from the 
 person making it to the person in whose favor it is made. And a transfer 
 by delivery, where the Bill or Note is sold, may imply that it is a genuine 
 Bill. An indorsement is no warranty that the prior indorsements are gen- 
 uine. At least it is not, in the case of a person who has the same means of 
 judging as the indorser, and who uses those means and judges for himself" 
 Is not there a mistake in this last passage of " drawer's," and should it not 
 be drawee's ? Mr. Chitty seems to think otherwise ; but I think, that 
 the authorities cited by him do not support him. His language is : " It has 
 been contended, that an indorsement is equivalent to a warranty that the 
 prior indorsements were -made by persons having competent authority. 
 But the Court seemed to deny that doctrine ; and, though an indorsement 
 admits all prior indorsements to have been, in fact, duly made, yet an in- 
 dorser, by his indorsement, merely engages that the drawee will ,pay, or 
 that he, the indorser, will, on his default, and due notice thereof, pay the 
 same, and which is the extent and limit of his implied contract." Chitty 
 on Bills, oh. 6, p. 266 (8th edit. 1833). He cites East India Company v. 
 Tritton, 3 B. & C. 280, and the opinion of Chambre, J., in Smith v. Mercer, 
 6 Taunt. 83. The former case was decided upon an independent ground, 
 that the party accepted ' the Bill, with a knowledge of what the agent's au- 
 thority was, and mistook its legal efi'ect. The latter turned upon the point, 
 that the Bill was paid by the plaintiff, as agent of the supposed acceptor, 
 whose acceptance was forged ; and both parties were equally innocent ; and 
 the plaintiff's name was not on the bill. In Bayley on Bills, ch. 5, p. 1 70 (5th 
 edit. 1833), it is laid down, that "an indorsement is no warranty that the 
 prior indorsements are genuine." But for this position the sole reliance is 
 on the case of The East India Company v, Tritton. In the case of Jones 
 
154 PEOMISSOEY NOTES. [CHAP. IV. 
 
 indorsee, to the holder ; and, indeed, it declares all the par- 
 ties thereto, whether makers or indorsers, jointly and several- 
 
 V. Kyde, 5 Taunt. 488, there was a forgery, by altering the Bill from £800 
 to £1,800. The Court held, that the plaintiff, who had sold the Bill as 
 one for £1,800, and who had paid the amount of the difference to his 
 vendee (£1,000), was entitled to recover, from his own vendor, the like 
 amount. In Lambert v. Pack, 1 Salk. 127; Critchlow v. Parry, 2 Camp. 
 182; Free v. Hawkins, Holt, N. P. 550, it was decided, that an indorse- 
 ment admitted the signatures of the drawer and other indorsers. If so, 
 does it riot necessarily admit the genuineness thereof? See Chitty on Bills, 
 Pt. 2, ch. 5, pp. 635, 636 (8th edit. 1833). In the French law, Pardessus 
 says that the.indorser warrants, with the other persons whose names are on 
 the Bill, the genuineness of the Bill (la verite de la Lettre). Pardessus, 
 Droit Comm. Tom. 2, art. 347. Mr. Chief Justice Marshall, in his opinion, 
 in the great case of Ogden v. Saunders (12 Wheat. 213, 341),- has ex- 
 pounded, in a masterly manner, the true foundation of the implications 
 resulting by law from the drawing and indorsing of negotiable instruments. 
 He says : " The liability of the drawer of a Bill of Exchange stands upon 
 the same principle with every other implied contract. He has received the 
 money of the person in whose favor the Bill is drawn, and promises that it 
 shall be returned by the drawee. If the drawee fail to pay the Bill, then 
 the promise of the drawer is broken, and for this breach of contract he is 
 ■liable. The same principle applies to the indorser. His contract is not 
 written, but his name is evidence of his promise that the Bill shall be paid, 
 and of his having received value for it. He is, in effect, a new drawer, and 
 has made a new contract. The law does not require that this contract 
 shall be in writing ; and, in determining what evidence shall be sufficient to 
 prove it, does not introduce new conditions not actually made by the par- 
 ties. The same reasoning applies to the principle which requires notice. 
 The original contract is not written at large. It is founded on the acts of 
 the parties, and its extent is measured by those acts. ' A draws on B in 
 favor of C, for value received. The Bill is evidence that he has received 
 value, and has promised that it shall be paid. He has funds in the, hands 
 of the drawer, and has aright to expect that his promise will be performed. 
 He has also a right to expect notice of its non-performance, because his 
 conduct may be materially influenced by this failure of the drawee. He 
 ought to have notice that his Bill is disgraced, because this notice enables 
 him to take measures for his own security. It is reasonable that he should 
 stipulate for this notice, and the law presumes that he did stipulate for it. 
 A great mass of human transactions depends upon implied contracts ; upon 
 contracts which are not written, but which grow out of the acts of the par- 
 ties. In such cases, the parties are supposed to have made those stipula- 
 tions which, as honest, fair, and just men, they ought to have made. When 
 
CHAP. IV.] EIGHTS OF PARTIES ON TKANSFEES. 155 
 
 ly bound (iw solido) as guarantors or sureties to the holder 
 for the due payment of the Note.^ 
 
 § 136. Similar obligations exist, by the foreign law, be- 
 tween the indorser and every subsequent holder of a Promis- 
 sory Note, as exist between the drawer and the payee of a 
 Bill of Exchange. Thus, Heineccius says : " Is, qui cam- 
 bium alicui ita cessit, ut valutam a cessionario receperit, huic 
 omnino semper obligatus est, adeoque cessionarius vel indos- 
 satarius actionem habet adversus indossantem ad recuperan- 
 dam sortem, proxeneticum, damna, et impensas, modo pro- 
 testationem rite interposuerit." ^ 
 
 § 137. One consequence of the doctrine, that by a blank 
 indorsement the Note will pass from and by mere delivery is, 
 that, if the Note is transmitted to an agent for the purpose 
 of collection or negotiation, he may either fill up the blank, 
 and make it payable to himself, or he may fill it up as agent 
 of his principal, in the name of a third person. In the for- 
 mer place, he may sue, as owner ,^ upon the Note, or transfer 
 it to a third person.* In the latter, the indorsee will take it 
 without any responsibility whatever of the agent.^ Another 
 consequence of this doctrine is, that if the Note should, after 
 such blank indorsement, be lost, or stolen, or fraudulently 
 misapplied, any pei"son, who should subsequently become the 
 holder of it, bona fide, for a valuable consideration, without 
 notice, would be entitled to recover the amount thereof, and 
 
 the law assumes that they have made these stipulations, it does not vary 
 their contract, or introduce new terms into it, but declares that' certain acts, 
 unexplained by compact, - impose certain duties, and that the parties had 
 stipulated for their performance. The difference is obvious between this 
 and the introduction of a new condition into a contract drawn out in 
 writing, in which the parties have expressed everything that is to be done 
 by either." ' 
 
 ' Code de Comm. art. 141, 187 ; iPardessus, Droit Comm. Tom. 2, art. 
 473 ; Pothier, De Change, n. 61 - 63. 
 
 ' Heinecc. de Camb. cap. 6, § 7 ; Story on Bills, § 116. 
 
 ' But see Sainsbury.u. Parkinson, 20 Eng. Law & Eq. 351. 
 
 • But see White v. Hildreth, 13 N. H. 104. 
 
 « Clark V. Pigot, 1 Salk. 126 ; 12 Mod. 192 ; Story on Bills, §§ 198, 224. 
 
156 
 
 PEOMISSOEY NOTES. 
 
 [chap. IV. 
 
 hold the same against the rights of the owner at the time of 
 the loss or theft.^ 
 
 § 138. Having thus seen what are the rights, duties, and 
 obligations of indorsers, in cases of general indorsements, 
 let us now proceed to the consideration of the different sorts 
 of indorsements, and the different modes in which transfers 
 may be made of Promissory, Notes. Indorsements may be 
 in blank or full, general or restrictive, qualified, conditional, 
 or absolute.^ An indorsement is said to be in blank, when 
 
 '■ Ibid. ; Marston v. Allen, 8 M. & W. 494, 504 ; Bayley on Bills, ch. 5, 
 § 2, pp. 129 - 131 (5th edit. 1830) ; Anon. 1 Ld. Raym. 738 ; 1 Salk. 126 ; 
 3 Salk. 7 ; Miller v. Race, 1 Burr. 452 ; Grant v. Vaughan, 3 Burr. 1516; 
 Chitty on Bills, ch. 6, p. 277 (8th edit. 1833) ; Id. ch. 9, p. 429 ; Story on 
 Bills, § 207. And see the late case of Palmer v. Richards, 1 Eng. Law & 
 Eq. 529. 
 
 ' Mr. Chitty has placed in his text (Chitty on Bills, ch. 6, pp. 250, 251, 
 8th edit.) certain forms of indorsements, applicable to various cases, which 
 I here insert, as illustrative of my own text. " James Atkins," in all these 
 forms, is supposed to be, solely, or with his partners, payee and first indorser. 
 
 MODES OB FORMS OF INDORSEMENTS AND TRANSFERS. 
 
 6. Restrictive indorsement in favor of 
 indorser. 
 
 " Pay John Hollo way for my use, 
 "James Atkins." 
 
 or, 
 " Pay John HoUoway for my account, 
 " James Atkins." 
 
 1. First indorsement by drawer or payee 
 in blank. 
 
 " James Atkins." 
 
 2. The like by a partner. 
 
 " Atkins & Co." 
 or, 
 " For self, and Thompson, 
 " James Atkins." 
 
 3. The like by an agent. 
 
 " Per procuration James Atkins. 
 
 "John Adams." 
 
 or, 
 
 " As agent for James Atkins. 
 
 "John Adams." 
 
 4. Qualified indorsement to avoid per- 
 sonal liability. 
 
 "James Atkins, 
 
 " sans recours." 
 or, 
 "James Atkins, with intent only to 
 transfer my interest, and not to be sub- 
 ject to any liability in case of non-ac- 
 ceptance or non-payment." 
 
 5. Indorsement in full or special. 
 
 " Pay John HoUoway, or order, 
 "Jamea Atkins." 
 
 7. Restrictive indorsement in favor of 
 indorsee, or a particular person only. 
 "Pay to I. S. only, 
 
 " James Atkins." 
 
 ' The within must be credited to A B, 
 " James Atkins." 
 
 8. Indorsement of a foreign Bill, dated, 
 stating name of indorsee, and value, and 
 au besoin, ancl sans protet. 
 
 " Payee La Fayette fibres, ou ordre, 
 Taleur recue en argent {or ' en merchan- 
 dises,' or ' en compte '), 
 
 " James Atkins. 
 " A Londre, 
 "18th Juin, A. D. 1831. 
 
 " Au besoin chez Messrs. , 
 
 " Rue , Paris. 
 
 " Retout sans Protlt." 
 
CHAP. IV.] EIGHTS OF PARTIES ON TRANSFERS. 157 
 
 the name of the indorser is simply written on the back of the 
 Note, leaving a blank over it for the insertion of the name of 
 the indorsee, or of any subsequent holder.^ In such a case, 
 while the indorsement continues blank, the Note may be 
 passed by .mere delivery, exactly as if it were payable to 
 bearer, and the indorsee, or other holder, is understood to 
 have full authority personally to demand payment of it, or to 
 make it payable, at his pleasure, to himself, or to any other 
 person, or his order .^ But he is not at liberty to write over 
 the blank indorsement any words which shall change the lia- 
 bility, created by law, upon the indorser, or at least none 
 which shall not be in exact conformity to the agreement 
 under which the indorsement was made by the indorser to 
 the indorsee.^ 
 
 § 139. An indorsement is said to be a full indorsement, 
 when it mentions the name of the person in whose favor it is 
 made.* The ordinary form of a full indorsement is, " pay to 
 A B or order " ; but if it be, " pay to A B," it is deemed a 
 general indorsement, and payable to him or his order, and 
 • the latter words may be added. ^ In order to make it re- 
 
 ' Story on Bills, § 206 ; Bayley on Bills, ch. 5, § 1, pp. 123, 124 (5tli 
 edit.). See Adams v. Smith, 35 Maine, 324. 
 
 "^ Bayley on Bills, ch. 5, § 1, pp. 123, 124 (5th edit.) ; Story on Bills, 
 §207; Chittyon Bills, ch. 6, pp. 253, 255-257 (8th edit.) ; Peacock v. 
 Khodes, Doug. 633, 636 ; Marston v. Allen, 8 M. & W. 494, 504 ; 3 Kent, 
 Lect. 44, p. 89 (5th edit.) ; Evans v. Gee, 11 Peters, 80 ; Lovell v. Evert- 
 son, 11 John. 52 ; Seabury v. Hungerford, 2 Hill, 80 ; Hall v. New- 
 comb, 3 Hall, N. Y. 232 ; Little v. O'Brien, 9 Mass. 423 ; 3 Kent, Lect. 44, 
 p. 77 (5th edit.) ; Cruchley v. Clarance, 2 M. & S. 90 ; Atwood v. Griffin, 
 Kyan & Mood. 425 ; Edie v. East India Co., 2 Burr. 1216 ; Orrick v. Col- 
 ston, 7 Gratt. 189. 
 
 ' Tenney v. Prince, 4 Pick. 385 ; Central Bank o. Davis, 19 Pick. 373, 
 376 ; Nevins v. De Grand, 15 Mass. 436 ; Blakely v. Grant, 6 Mass. 386. 
 See Awde v. Dixon, 5 Eng. Law & Eq. 512. 
 
 * Bayley on Bills, ch. 5, § 1, p. 123 (5th edit.) ; Chitty on Bills, ch. 6, 
 pp. 253, 257 (8th edit.). 
 
 ' Bayley on Bills, ch. 5, § 1, p. 128 (5th edit.) ; Chitty on Bills, ch. 6, 
 pp. 257, 258 (8th edit.) ; More v. Manning, 1 Com. 311 ; Story on Bills, 
 §§ 206, 210 ; Acheson v. Fountain, 1 Str. 557 ; Bull. Nisi Prius, 275 ; Edie 
 
158 PEOMISSOEY NOTES. [CHAP. IV. 
 
 strictive, other words nnast be added, as, for example (as we 
 shall presently see), " pay to A B only." When an indorse- 
 ment is made in full, the indorsee can transfer his interest 
 in it only by his own indorsement in writing thereon.^ But, 
 while the first indorsement remains blank, the Note, as 
 against the maker and the first indorser, is transferable by 
 mere delivery, notwithstanding it may have subsequent full 
 indorsements, if not restrictive thereof.^ But, even if the 
 first indorsement be full, and not restrictive, and it is after- 
 wards indorsed by the indorsee, or by any subsequent regu- 
 lar holder, in blank, any subseqiient holder may take the 
 same by mere delivery, and make himself the immediate 
 indorser upon the blank indorsement, by filling up the blank 
 in his own name.^ It is not desirable, however, where there 
 are successive indorsements in blank on the Note, that the 
 holder should fill up any of the early indorsements in his 
 own name, as he may thereby discharge the subsequent in- 
 dorsers from all responsibility on the Note, unless, indeed, 
 he should be unable, when a suit is to be brought upon the 
 dishonor of the Note, to prove the signatures of the inter- 
 mediate indorsers.* 
 
 u. East In^ia Co., 1 W. Black. 295 ; 2 Burr. 12i6 ; Hodges v. Adams, 19 
 Verm. 74. 
 
 ' Chitty on Bills, ch. 6, p. 253 (8th edit.) ; Story on Bills, § 208. 
 
 " Bayley on Bills, ch. 5, § 1, pp. 124, 125 (5th edit.) ; Chitty on Bills, 
 ch. 6, pp. 253, 255-267 (8th edit.) ; Story on Bills, § 207. See Smith v. 
 Clarke, Peake, 225 ; 1 Esp. 180 ; , Walker v. MacDonald, 2 Exch. 527. 
 
 = Chitty on Bills, ch. 6, pp. 255, 256 (8th edit.). See Thompson v. Bob- 
 ertson, 4 John. 27 ; Story on Bills, §§ 207, 208. 
 
 ' Story on Bills, §§ 207, 208. There are some advantages and some dis- 
 advantages which practically may occur in either way. A good pleader 
 would imdoubtedly put into the declaration different counts, deduciii"' title 
 in different ways, according to the facts, and his means of proving them. 
 Thus, if he could prove only the signature of the first indorser, he would 
 rely on a count stating the plaintiff to be his immediate indorsee. If he 
 could prove all the signatures of all the indorsers, he ought to have a count 
 in his declaration founded upon all of them. For, if the plaintiff should 
 elect to recover upon an early blank indorsement, he might thereby dis- 
 charge all the subsequent indorsers, or waive any remedy at^ainst them. 
 
CHAP. IV.] EIGHTS OF PAETIES ON TRANSFERS. 159 
 
 § 140. By the law of France, in order to pass a valid title 
 to a Promissory Note, to the indorsee, or holder, it is essen- 
 tial that the indorsement should be subscribed by the in- 
 dorser ; that it should be dated truly (and not antedated) ; 
 that it should be expressed to be for value received ; and that 
 the name of the person, to whose order it is payable, should 
 be mentioned. 1 When an indorsement contains all these 
 particulars, it is called a regular indorsement, and the title 
 will thereby pass to the indorsee.^ If the indorsement be 
 not attended with these formalities, it is called an irregular 
 indorsement, and will only operate as a simple procuration 
 to the indorsee, giving him authority to receive the contents.^ 
 A blank indorsement, therefore, is treated as an irregular 
 indorsement, and will not transfer the property to the in- 
 dorsee or holder, unless, indeed, the imperfection is cured by 
 the indorser, before it has become the subject of some nota- 
 rial or public act, or before the indorser has become incapa- 
 ble.* Still, a blank indorsement is not without effect in 
 Prance ; for, if the Note has been indorsed in blank, and it 
 is then lost or stolen, and the blank is filled up in a false or 
 forged name, and the maker should, without notice of the 
 fact, pay the Note to the holder, he would be protected in so 
 doing.^ Blank indorsements seem also prohibited in many 
 
 This might be a serious inconvenience to him, if there should be any doubt 
 of the insolvency of such early indorser. Great care and consideration are, 
 therefore, necessary to be observed in all complicated cases of this sort, if 
 the holder means to rely upon the responsibility of all the indorsers. See 
 Bayley on Bills, ch. 11, pp. 464, 467 (5th edit. 1830); See Chitty on Bills, 
 PL 2, ch. 5, pp. 628-631 (8th edit. 1833) ; Id. p. 636; Cocks v. Borra- 
 daile, cited Chitty on Bills, 631, note (/) ; Chaters v. Bell, 4 Esp. 210. 
 See also Story on Bills, § 190. 
 
 ' Code de Comm. art. 136 - 139 ; Pothier, De Change, n. 38 - 40 ; Jousse, 
 Sur L'Ord. 1673, tit. 5, art 23. 
 
 ^ Pardessus, Droit. Comm. Tom. 2, art. 343-350; ante, § 131. 
 
 ' Code de Comm. art. 138 ; Pardessus, Droit Comm. art. 343, 353-365 ; 
 Chitty on Bills, ch. 6, p. 251 (8th edit. 1833) ; Pothier, De Change, n. 38, 39. 
 
 ' Pardessus, Droit Comm. Tom. 2, art. 353, 354 ; Pothier, De Change, n. 
 41 ; Trimbey v. Vignier, 1 Bing. N. Cas. 151 ; ante, §§ 2, 42. 
 
 ° Pardessus, Droit Comm. Tom. 2, art. 446, 455 ; ante, §§ 2, 42. 
 
160 PEOMISSOKY NOTES. [CHAP. IV. 
 
 other of the continental nations of Europe. Heineccius, on 
 this subject, says : " Nee minus notari meretur, leges cam- 
 biales tantum non omnes ob innumeras fraudes prohibere 
 cessiones, qute solo subscripto nomine fiunt, ac proinde vo- 
 cantur Indossamenta in bianco. Ex his ne actio quidem 
 datur, nisi ante prjEsentationem nomen indossatarii ab indos- 
 sante inscriptum sit." ^ 
 
 ' Heinecc. de Camb. cap. 2, § 11 ; Id. § 10 ; Story on Bills, § 205. The 
 remarks of Mr. Professor Mittermeier on this subject are equally philosoph- 
 ical and striking. " L'endossement en blanc m^rite une attention particu- 
 lifere. Un fait digne de remarque, c'est que, nonobstant les dispositions des 
 articles 137 et 138, il se fait en France un grand nombre d'endossements 
 en blanc, dont les auteurs ont cependant I'intention de transferer la propri- 
 6td de la Lettre de Change. En Angleterre et aux Etats Unis, les com- 
 mer9ants n'ont jamais elevd aucun doute sur la validite d'un endossement 
 en blanc, et les lois des Pays-Bas et du Danemark le reconnaissent formel- 
 lement comme valable. Aux termes de la nouvelle loi hongroise, un en- 
 dossement complet ne peut etre attaque sous le pretexte qu'il a ete donn6 
 en blanc et rempli ensuite. La loi due royaume de Saxe, en date du 18 
 juillet, 1840, reconnait egalement la validity de l'endossement en blanc. 
 D'apres le projet prepare pour le royaume de Wurtemberg, l'endossement 
 en blanc peut gtre donne par la simple signature de I'endosseur, et cet en- 
 dossement transmet la propriety de la Lettre de Change. Le projet au- 
 trichien admet de mgme la validity de cet endossement. Le projet prus- 
 sien de 1838 declare, h la vdritd, que l'endossement en blanc ne vaut que 
 comme procuration ; mais les r^dacteurs des motifs annexes k ce projet 
 ajoutent que plusieurs corporations de commer^ants ont fait remarquer que 
 les endossements en blanc sont indispensables au commerce ; que souvent 
 ils sont employes pour mettre en gage une Lettre de Change avant I'eche- 
 ance ; et qu'on peut admettre comme regie que le signataire de l'endosse- 
 ment en blanc entend donner au porteur le droit de le remplier. Lors de 
 la reception du Code de Commerce fran(;ais dans le grand-duche de Bade, 
 le legislateur a fait une addition k I'article 138, portant defense au porteur 
 ■ d'un endossement en blanc, de le remplir. Cet expose comparatif des di- 
 verses legislations en matifere d'endossements en blanc, porte k conclure 
 qu'il y a toujours imprudence ou Ifegeretd de la part du Mgislateur, lorsqu'il 
 neglige d'appeler k son aide I'expdrience des hommes pratiques et qui ont 
 pu, dans I'usage quotidien, appriSoier le merite et les inconv^nients d'une 
 disposition. On ne saurait douter que dejk k une epoque reculee, et aussi- 
 t6t quo I'institution des endossements eut pris quelques developpements les 
 endossements en blanc n'aient et6 d'un usage gdndral dans les orandes 
 villes de commerce, parce que cette forme d'endossement etait conforme k 
 
CHAP. IV.] EIGHTS OF PARTIES ON TRANSFERS. 161 
 
 § 141. An indorsement is said to be general, or absolute, 
 
 when it is in blank, "or filled up payable to the indorsee or 
 
 la vdritable nature de la Lettre de Change, qui est de former un titre sus- 
 ceptible d'une circulation rapide et analogue h celle dii papier-monnaie. 
 La proscription des endossements en blanc, ou la disposition qu'ils ne vau- 
 dront que comtne procuration, est le r&ultat, d'une part, de I'application, h 
 la Lettre de Change, des principes relatifs k la cession et k la necessite de 
 justifier de la propridte due titre ; d'autre part de la crainte des abus et 
 dangers auxquels les endossements en blanc peuveut donner lieu. Le le- 
 gislateur oublia que I'int^rSt des relations commerciales exige I'application 
 d'endossements en blanc, et.que ces endossements font accroitre le credit 
 de la Lettre de Change ; en effet, par ce moyen, celle-ci obtient une circu- 
 lation plus rapide, puisque les personnes par les mains desquelles elle passe 
 par I'effet d'endossements en blanc ne se soumettent pas a I'obligation de 
 garantie et sent, par suite, plus disposees k entrer dans les operations de 
 change. Celui qui fait escompter en blanc une Lettre de Change en con- 
 serve la propri^te, et les perils sont k ses risques ; tandis que si I'endosse- 
 ment ^tait rempli, les perils dventuels seraient aux risques de I'escompteur. 
 Ainsi s'explique pourquoi les auteurs qui se sont penetrds des veritables 
 besoins du droit de change, par exemple M. Einert, insistent sur la neces- 
 site de maintenir I'endossement en blanc. En France, nonobstant les dis- 
 positions qui considferent cet endossement comme une simple procuration, 
 en lui refusant I'efFet d'operer le transport de la propriete, il est d'un usage 
 general, d'apres le t^moignage de tons les auteurs, et sans qu'on I'emploie 
 dans un but de fraude ; des jurisconsultes estimables, par exemple M. Hor- 
 son, reconnaissent que I'usage du commerce a d^roge h. la loi. La jurispru- 
 dence des tribunaux fran(;ais s'est declaree en faveur de I'usage; car elle, 
 admet que I'endossement en blanc produit les effets d'un endossement par- 
 fait, lorsque le parteur justifie qu'il en a fourni la valeur, et que le porteur 
 d'un endossement en blanc pent transferer valablement k un tiers la pro- 
 priety de la Lettre "de Change. En examinant, sous le rapport Idgislatif, 
 s'il y a lieu ou non d'admettre I'endossement en blanc, on a ordinairement 
 confondu deux questions distinctes; celle de savoir si le porteur peut etre 
 contrait de se contenter de cet endossement, et celle de savoir si la loi doit 
 sanctionner la convention des contractants qui sont d'accord d'employer 
 cette espfeoe d'endossement ? II faut r^pondre negativement h, la premiere 
 question, et affirmativement i, la seconde. A la verite, le prejudice dont le 
 detenteur d'un endossement en blanc est menace, peut determiner un nego- 
 ciant k refuser de s'en charger ; mais la possibilite de ce prejudice possible 
 ne saurait engager le legislateur k interdire un usage qui, depuis des siecles, 
 a offert des advantages aux commercjants; il doit s'abstenir d'autant plus 
 de prononcer une prohibition, qu'elle peut etre plus facilement eludee. En 
 effet, souvent le detenteur d'un endossement en blanc le remplit avant d'eu 
 faire usage, et on ne saurait lui defendre d'operer ce complement. A Leip- 
 11 
 
162 PEOMISSOEY NOTES. [CHAP. IV. 
 
 his order, without any restrictive or qualifying or condi- 
 tional words. An indorsement is restrictive, when it is 
 either expressly restrained to the payment of the Note to a . 
 particular person only, or for a particular purpose, or is 
 made in favor of a person who cannot make a transfer thereof 
 to another .1 
 
 § 142. The payee, or indorsee, having the absolute prop- 
 erty in the Bill, and the right of disposing of it, has the 
 power of limiting the payment to whom he pleases, and also 
 the purpose to which the payment shall be applied ; and thus 
 to restrict its negotiability.^ In respect to restrictive indorse- 
 
 zig, oil la loi avait gendralement interdit I'endossement en blanc, I'usage 
 s'en conserva cependant, et une jurisprudence bien entendue reconnut au 
 porteur le droit de remplir cet endossement. Nous ajouterons une derniere 
 consideration. Si le legislateur veut etre consequent, il ne doit point s'ar- 
 reter h moitid chemin ; il ne doit point se borner k reconnaltre la validity 
 de I'endossement en blanc dans le cas oxi il aurait ete rempli plus tard ; il 
 doit egalement statuer sur la question de savoir h qui appartient le droit de 
 remplir I'endossement. En elFet, si Ton exige que ce complement ne puisse 
 dtre effectu^ que par I'endosseur lui-m@me, auteur de I'endossement en 
 blanc, il sera souvent impossible de satisfaire h cette prescription. Ainsi, 
 lorsqu'un ndgociant de Paris revolt, le 15 aout, de son correspondant de 
 New York une Lettre de Change payable a Lyon le 1" septembre, il y 
 impossibility de renvoyer I'effet aux Etats-Unis pour remplir I'endossement. 
 Si Ton se borne k exiger d'une maniere absolue que I'endossement 
 soit rempli, on accorde par lb, mSme au porteur le droit de le remplir ; mais 
 des que ce droit existe, la prescription de la loi ne produira aucun effet, et 
 on ouvrira la porte k des faits illicites. D^s cet dtat de choses, le legisla- 
 teur devra tout simplement abaudonner au libre arbitre du commer^ant la 
 faculte d'employer I'endossement en blanc, et de I'accepter comme valablei 
 s'il lui est presente." Foelix, Kevue Etrang. et Fran9. Tom. 8 (1841), pp. 
 116 -121. See also Nouguier, Des Lettres de Change, Tom. 1, pp. 273, 
 274, cited ante, § 42, note; Id. Tom. 1, pp. 279-285. The same learned 
 author says, that indorsements in blank were first introduced into France 
 at the commencement of the 18th century. Nouguier, Tom. p. 296. 
 
 ' Bayley on Bills, ch. 5, § 1, p. 125 (5th edit.) ; Chitty on Bills, ch. 6, 
 pp. 259, 285 (8th edit.) ; Nicholson v. Chapman, 1 Louis. Ann. 222 ; Story 
 on Bills, § 206. 
 
 " Mr. Chitty has remarked on this subject : " It was once thought, that 
 although the indorser might make a restrictive indorsement, when he intend- 
 ed only to give a bare authority to his agent to receive payment, yet, that 
 
CHAP. IV.] BIGHTS OF PARTIES ON TRANSFERS. 163 
 
 ments, it is proper to observe, tliat, where the Bill is origi- 
 nally negotiable, or payable to order, an indorsement, direct- 
 ing payment to a particular person by name, without adding 
 the words, " or his order," will not make it an indorsement 
 payable to him only, and restrain the negotiation thereof; 
 for, in all cases of indorsement, the restriction must arise by 
 express words or necessary implication, to produce such an 
 effect.! The reason is, that the direction to pay to a particu- 
 lar person does not necessarily import that it shall not be 
 paid to any other person to whom he may indorse it ; but 
 only that it shall not pass without his indorsement.^ So, if 
 
 he could not, when the indorsement was intended to transfer the interest 
 in the Bill to the indorsee, by any act, preclude him from assigning it over 
 to another person, because, it was said, the assignee purchases it for a val- 
 uable consideration, and therefore takes it with all its privileges, qualities, 
 and advantages, the chief of which is its negotiability. (Edie v. East India 
 Company, 8 Burr. 1226.) In a case (Bland v. Eyan, Peake, Addit. Cas. 
 39) before Lord Kenyon, he doubted, whether a Bill, indorsed in blank by 
 A to B, can be restrained in its negotiability by B's writing over A's in- 
 dorsement, ' Pay the contents to C or order.' In a note, the reporter has 
 collected the cases, showing that, in general, a restrictive indorsement may 
 be made by a subsequent holder, after an indorsement in blank ; but ob- 
 serves, that the recent cases do not establish the right of an indorsee in 
 blank to write over the indorser's name, but only, that a restrictive indorse- 
 ment may be made below an indorsement. But the case of Clarke u. Pigot 
 (1 Salk. 126, 12 Mod. 192) seems to be an authority to prove that this 
 may be done. It has long been settled, on the above principle, that an in- 
 dorser may restrain the negotiability of a Bill, by using express words to 
 that efiFect, as by indorsing it, ' Payable to J. S. only ' ; or by indorsing it, 
 ' The within must be credited to J. S.' (Ancher v. Bank of England, 
 Doug. 637 ; Chitty on Bills, ch. 6, p. 258, note, 8th edit. 1833) ; or by any 
 other words clearly demonstrating his intention to make a restricted and 
 limited indqrsement. But a mere omission, in the indorsement, of the words, 
 ' or order,' will not, in any case, prevent a Bill from being negotiable, ad 
 infinitum." Chitty on Bills, ch. 6, pp. 260, 261 (8th edit. 1833). See 
 Soares v. Glyn, 8 A. & El. (N. S.) 24. 
 
 1 Chitty on Bills, ch. 6, p. 257, 258 (8th edit. 1833) ; Bayley on Bills, 
 ch. 5, § l,p. 128 (5th edit. 1830); More v. Manning, Com. 311; Ache- 
 son V. Fountain, 1 Str. 557; Edie v. East India Company, 1 Wm. Black. 
 295 ; 2 Burr. 1216 ; Story on Bills, § 210. 
 
 » Ibid. 
 
164 PROMISSORY NOTES. [CHAP. IV. 
 
 a Bill is indorsed, "Pay to the order of A B," he may not 
 only indorse it, but he may, in his own name, sue and re- 
 cover upon tlie same, without averring that he has made no 
 .order.i 
 
 § 143. It is not, perhaps, easy, in all cases, to assert what 
 language will amount to a restrictive indorsement, or, in 
 other words, what language is sufficient to show a clear in- 
 tention to restrain the general negotiability of the instrument, 
 or the general purposes to which the indorsement might 
 otherwise entitle the indorsee to apply it. Where the in- 
 dorsement is,' " Pay to A B only,"- there the word "only" 
 makes it clearly restrictive, and does not authorize a payment 
 or indorsement to any other* party .^ So, if a Bill should be 
 indorsed, " The within to be credited to A B " ; ^ or, " Pay 
 the within to A B for my use " ; * or, " Pay the within to A B 
 for the use of C D,"^ it would be deemed a restrictive in- 
 dorsement, so far as to restrain the negotiability, except for 
 the very purposes indicated in the indorsement. In every 
 such case, therefore, although the Bill may be negotiated by 
 the indorsee, yet every subsequent holder must receive the 
 
 ' Ibid. ; Fisher v. Pomfrett, Carth. 403 ; Smith v. McCIure, 5 East, 476 ; 
 Story on Bills, §§ 19, 56. Heineccius informs us, that the law is different 
 in Germany ; for, in the like case, A B has no right to receive payment, 
 but can only indorse it. " Quin aliquando et invitus alii cambium cedere 
 tenetur, si illi inest clausula, der Herr zahle an Titii Ordre. Tunc enim 
 Titio solvi non protest, sed ejus indossatario." Heineec. de Camb. cap. 2, 
 § 8; Story on Bills, §§ 19, 56, 206, note. 
 
 2 Chittyon Bills, ch. 6, pp. 258-261, 263, 264 (8th edit. 1833) ; Ancher 
 V. Bank of England, Doug. 637, 638 ; Bayley on Bills, ch. 5, § 1, pp. 125, 
 126 (5th edit; 1830) ; Edie v. East India Company, 2 Burr. 1216, 1227; 
 Power V. Finnic, 4 Call, 411 ; 1 Bell, Comm. B. 3, § 4, pp. 401, 402 (5th 
 edit.). 
 
 ' Ibid. ; Ancher v. Bank of England, Doug. 615, 637. 
 
 • Ibid. ; Sigourney v. Lloyd, 8 B. & C. 622; 5 Bing. 525 ; 3 Younge & 
 Jerv. 220 ; Wilson v. Holmes, 5 Mass. 543 ; Savage v. Merle, 5 Pick. 85. 
 A Note indorsed " Pay A on my account," signed by the payee, is open to the 
 same defences as though it had remained in the hands of the payee. Leary 
 V. Blanchard, 48 Maine, 269. 
 
 ' Ibid.; Treuttel v. Barandon, 8 Taunt. 100. 
 
CHAP. IV.l EIGHTS OF PARTIES ON TEANSFEES. 165 
 
 money, subject to the original designated appropriation 
 thereof; and if he voluntarily assents to, or aids in, any 
 other appropriation, it will be a wrongful conversion thereof, 
 for which he will be responsible.^ 
 
 § 144. The French law, in like manner, recognizes the 
 right of the indorser to make a restrictive indorsement. 
 This is usually done by a direction, " Pay on my account to 
 such a one" (PoMr moi paierez d un tet) ; in which case, the 
 payment can be made only to the person designated.^ If it 
 is intended to clothe the party with authority to procure pay- 
 ment through any other person, then the words are added, 
 " or to his order " (ou a son ordre) ; and in that event, and 
 in that only, the Bill may be negotiated to a third person, 
 but still for the use of the indorser.^ Heineccius informs us, 
 that a like difference in the mode of making indorsements 
 prevails in Germany, in order to accomplish the like pur- 
 poses. " Id vero prsecipue observandum, Gambia cedi vel 
 indossari bifariam. Aut enim ita improprie fit cessio, ut 
 alter procurator indossantis fiat in rem alienam, quod fit for- 
 mula,^ vor mich an Herrn Javolenus, soil mir gute Zahlung 
 seyn, vel, es soil mir validiren ; aut cessio est vera et pro- 
 pria, eum in finem facta, ut cessionarius fiat dominus cambii, 
 quod fit formula, vor mich an Herrn Javolenus, Valuta von 
 demselben. Prior, indossatarius, quia tantum, procurator est, 
 cambium alterius indossare nequit ; huic autem regulariter 
 id est integrum. Undo ssepe sex vel plures cessiones dorso 
 cambii inscriptae leguntur, quale cambium tunc vocari solet 
 ein Giro, vel, ein girirter Wechsel." * 
 
 § 145. But, although restrictive indorsements are thus 
 clearly allowed, both by our law and the foreign law, still, as 
 they necessarily tend to impair the negotiability of Bills of 
 
 ^ Ibid. ; Sigourney «. Lloyd, 3 Youoge & Jerv. 229 ; Bayley on Bills, ch. 
 5, § 1, pp. 128, 129 (5th edit. 1830) ; Story on Bills, § 211. 
 
 '^ Pothier, De Change, n. 23, 42, 89 ; Pardessus, Droit Comm. Tom. 2, 
 § 348 ; Merlin, Expert. Endossemenl. 
 
 ' Pothier, lb. See Pardessus, Tom. 2, art. 353 - 355. 
 
 * Heinecc. de Camb. cap. 2, § 10; Id. § 19 ; Story on Bills, § 213. 
 
166 PROMISSORY NOTES. [OHAP. IV. 
 
 Exchange, an intention to create such a restriction will not 
 be presumed from equivocal language, and especially where 
 it otherwise admits of a satisfactory interpretation. Thus, 
 for example, an indorsement, "Pay the contents to A B, 
 being part of the consideration on a certain deed of assign- 
 ment executed by the said A B to the indorser and others," 
 has been held not to be restrictive.^ So, where a Bill was 
 made payable to A and B, or bearer, and the name of their 
 bankers was written across it, and afterwards A transferred 
 the check, on his own account, to another banker, it was 
 held that the transfer to the latter was good, unless, by the 
 common understanding of bankers, there was information 
 of a special appropriation of the check to the bankers of 
 A and B.2 
 
 § 146. A qualified indorsement differs from a restrictive 
 indorsement in this, that, whereas the latter restrains the ne- 
 gotiability of the instrument to a particular person or pur- 
 pose, the former in no respect affects the negotiability of the 
 instrument, but simply qualifies the duties, obligations, and 
 responsibilities of the indorser, resulting from the general 
 principles of law. Thus, for example, an indorsement of a 
 Note to A, " without recourse," or " at his own risk," will 
 not restrain ftie negotiability of the Note ; but will simply 
 exclude any responsibility of the indorser, on the non-accept- 
 ance or non-payment thereof.^ Neither will an indorsement 
 
 ' Potts V. Eeed, 6 Esp. 57 ; Bayley on Bills, ch. 5, § 1, p. 127 (5th edit. 
 1830) ; Chitty on Bills, ch. 6, pp. 259, 260 (8th edit. 1833). 
 
 ' Stewart v. Lee, 1 Mood. & Malk. 158; Chitty on Bills, ch. e, p. 260 
 (8th edit. 1833) ; Bayley on Bills, ch. 8, p. 324 (5th edit. 1830) ; Story on 
 Bills, §§ 210-213. 
 
 » Rice V. Stearns, 3 Mass. 225 ; Chitty on Bills, ch. 6, pp. 251, 254, 261 
 (8th edit. 1833) ; Id. p. 37 ; Pike v. Street, 1 Mood. & Malk. 226 ; Goupy 
 V. Harden, 7 Taunt. 159, 162; Welch v. Lindo, 7 Cranch, 159; Epler v. 
 Funk, 8 Barr, 468 ; Waite v. Foster, 33 Maine, 424 ; Richardson v. Lin- 
 coln, 5 Met. 201 ; and parol evidence is competent to sh(iw such words 
 were written by the first indorsers, although they appeared to be the words 
 of the second indorsers, and the holders took the Note with that understand- 
 ing. Fitchburg Bank v. Greenwood, 2 Allen, 434. But see Lawrence v. 
 
CHAP. IV.] EIGHTS OF PARTIES ON TEANSFEES. 167 
 
 to A, " or order, for my iise," restrain its negotiability, al- 
 though the indorsee must take it, subject to my use.^ And, 
 a fortiori, an indorsement expressive of the consideration for 
 which the indorsement is made, will not restrain the nego- 
 tiability ; as, for example, an indorsement, " Pay the con- 
 tents to A B, being part payment of goods sold by him to 
 me, or being in full of debt due to him by me." ^ [And the 
 addition of the word " surety," or " security," by the in- 
 dorsers of a Note, to theii- names, will not devest them of 
 their character as indorsers, but will operate , to give them 
 the privileges of sureties in addition to their rights as 
 indorsers.^] 
 
 § 147. And not only may the indorser by his indorsement 
 qualify and restrain his own liability, but he may, also, if he 
 chooses, enlarge his ordinary responsibility as indorser. We 
 have already seen, that the obligation created by law, in 
 cases of indorsement, is conditional, and requires the holder 
 to make due demand, and give due notice to the indorser of 
 the non-payment of the Note ; and, if he omits so to do, the 
 indorser is discharged.* But an indorser may absolutely 
 
 Dobyns, 30 Mo. 196 ; Pardessus, Droit Comm. Tom. 2, art. 348 ; 3 Kent, 
 Lect. 44, pp. 92, 93 (4th edit.) ; Pothier, De Change, n. 42, 89. In Mott 
 V. Hicks, 1 Cowen, 513, where a Note was payable to A B or order, A B 
 indorsed it thus : " AB, agent." It was held by the Court, that this was a re- 
 strictive or qualified indorsement, and exempted A B from all personal 
 responsibility on the Note ; and was equivalent to writing over it, that it 
 was at the risk of the indorsee. But, qumre, if this ease can be supported 
 at law. See Story on Agency, §§ 154, 159, 276, and oases there cited. 
 And where C D, the assignee of an insolvent estate, in settling a claim of 
 the estate, took a Note payable to C D, assignee, and indorsed the same, 
 " C D, assignee," it was held that his indorsement did not render him per- 
 sonally liable, but only transferred the Note. Bowne v. Douglass, 38 Barb. 
 312. . 
 
 1 Story on Bills, § 211; Bayley on Bills, ch. 5, § 1, pp. 128, 129, 134 
 (5th edit. 1830) ; Evans v. Cramlington, Carth. 5 ; 2 Vent. 307 ; Skinn. 
 264; Treuttel v. Barandon, 8 Taunt. 100. 
 
 ^ Potts V. Keed, 6 Esp. 57 ; Bayley on Bills, ch. 5, § 1, p. 127 (5th edit. 
 1830) ; Story on Bills, § 214. 
 
 ' Bradford v. Corey, 5 Barb. 461. See Martin v. Fales, 4 Foster, 242. 
 
 » Ante, § 135 ; Story on Bills, §§ 107-109. 
 
168 ' PROMISSORY NOTES. [CHAP. IV. 
 
 guarantee the payment of the Note in all events, and dis- 
 pense with any such due demand or notice.^ In such a case, 
 
 ' Upham V. Prince, 12' Mass. 14; Partridge v. Davis, 20 Verm. 500; 
 
 post, § 465. But see contra, Taylor v. Binney, 7 Mass. 479 ; Canfield v. 
 Vaughan, 8 Martin, 682; Allen w. Riglitmere, 20 John. 365; Ketchell w. 
 Burns, 24 Wend. 456. I am aware that sonie doubt may exist upon this 
 point, although it appears to me that the true principle is as stated in the 
 text. The true import of such a guaranty seems to me to be, that the 
 payee means to say, I indorse and transfer this Bill to you, and I agree ab- 
 solutely to pay the same, if not paid by the acceptor, and waive my general 
 rights as indorser, and claim only such demand and notice as a guarantor 
 might have. In Taylor v. Binney, 7 Mass. 479, the Note was payable to 
 A B, or order; and after the Note became due, and remained unpaid, 
 A B' indorsed it, asfoMows: "December 13, 1805. I guaranty the pay-^ 
 ment of the within Note, in eighteen months, provided it cannot be collected 
 of the promisor before that time." A B then passed the Note, with this in- 
 dorsement, to a third person, who passed it, without his own indorsement, 
 to the plaintiff, who sued the indorser. The Court held the action not 
 maintainable. There were many special circumstances in the case. Mr. 
 Justice Sewall, in delivering the opinion of the Court, said : " In the case 
 at bar, the plaintiff relies on an indorsement, which is not blank in the form 
 of it, but completed by the indorser himself. The Note, with the words of 
 the payee in his indorsement, are to be construed together as one written 
 instrument. The special guaranty, expressed, in that indorsement, is the 
 whole ground upon which the present action against this defendant can be 
 maintained ; and the plaintiff does not rely upon any implied responsibility, 
 resulting from the indorsement in the common form. If this indorsement, 
 in the whole tenor of it, may be construed to be, not only a guaranty, but 
 also a transfer and assignment of the Note, which seems to have been the 
 intention and understanding of the parties, the principal objection to the 
 title of the plaintiff remains in force. There is no name inserted of the 
 
 ■ party to be entitled by the indorsement ; and, if this omission might be sup- 
 plied by extraneous evidence, the facts proved in the case render it certain 
 that the present plaintiff was not the party to the guaranty or assignment, 
 when it was made ; and no evidence has been offered of any subsequent 
 privity or assent between him and the defendant. But the argument of the 
 plaintiff is, that the omission of the name of the indorsee is evidence of an 
 intention in the defendant and the other immediate party, whoever he was, 
 to give an unlimited currency to this Note, and to accompany it with the 
 collateral promise of the payee ; according to the usage and construction, 
 in ordinary cases, of blank indorsements upon negotiable Bills or Notes. 
 But, in the case at bar, there is no necessary implication to this effect, aris- 
 ing from the circumstance of the omission of the name of the indorsee or 
 party to the guaranty. This may have been a mistake or accident. The 
 
CHAP. IV.] EIGHTS OF PARTIES ON TRANSFERS. 169 
 
 there is no reason to infer that the indorser means to restrain 
 the further negotiability of tlie Note, even if he does mean to 
 
 negotiation was not upon tlie credit of the original promisor, but wholly 
 upon the final responsibility of the indorser ; the ability of the promisor, 
 considering the whole tenor of this indorsement, remaining at his risk ; and 
 the assignment seems to be rather a confidence for the collection of the 
 Note, than an absolute transfer of the property. The guaranty, taken in- 
 dependently of the Note, is a promise not negotiable, being conditional, 
 and not absolute ; and, connected with it, the supposition is altogether un- 
 r^sonable and improbable, of an unlimited currency intended for the Note 
 itself, at the risk of the indorser. The plaintiflf fails, therefore, in the evi- 
 dence necessary to his title, even admitting the usage cited, respecting 
 Notes indorsed in blank, to have any application, where the indorsement is 
 full and restrictive, and not at all in the form of a blank indorsement, un- 
 less in the mere circumstance of omitting the name of the indorsee." In 
 Upham V. Prince, 12 Mass. 14, the Note was payable to A B, or order, on 
 demand ; A B indorsed the Note, " I guarantee the payment of this Note 
 within six months"; and it was then transferred to C D, who transferred it 
 to the plaintiff. The Note not being paid at the end of the six months, the 
 plaintiflf brought a suit thereon against A B. The Court, upon that occa- 
 sion, said : " Whatever effect such a writing on the back of a Note might 
 legally have, beyond that of an assignment of the Note, we do not think it 
 necessary to decide. But we are all of opinion that the Note did not lose 
 its negotiability by this special indorsement, any more. than it would if it 
 had been indorsed with the words, ' without recurrence to the indorser,' 
 which is a common form of indorsement, where the indorser does not in- 
 tend to remain Hable. The defendant's engagement amounts to a promise, 
 that the Note should, at all events, be paid within six months. Now, this 
 promise may not be assignable in law ; and yet the Note itself may be as- 
 signable by the party to whom it was so transferred, so that, upon non-pay- 
 ment of it by the promisor, the holder would have a right of action against 
 Prince as indorser. A demand was made upon the promisor within a short 
 time after the date of the Note ; and notice was given to the indorser as 
 soon as he returned to this country, he being absent during the whole of 
 the six months the Note was !to run. It does not appear that he had any 
 dwelling-house or place of business here while he was absent, so that a call 
 upon him, as soon as he returned, was all that could be done or required. 
 We think, upon the facts agreed, that the defendant must be called." This 
 last decision seems to me to contain the true doctrine ; and it is not easy to 
 perceive what reasonable objection lies to it. The indorsement amounts, in 
 legal effect, to an agreement to be bound as indorser for six months, and 
 ' that a demand need not be made upon the maker of the Note for payment 
 at an earlier period. It is, therefore, a mere waiver of the ordinary rule of 
 
170 PEOMISSOEY NOTES. [CHAP. IV. 
 
 restrain the effect of the guaranty to his immediate indorsee.^ 
 And, if the indorsement is either without the name of any 
 person to wliom it is indorsed, but a blank is left for the 
 name, or if the Note is indorsed to a person or his order, or 
 to the bearer, with such guaranty, there is certainly strong 
 reason to contend that he means to give the benefit of the 
 guaranty to every subsequent holder ; ^ and, at all events, 
 such a holder has a right to hold him as indorser of the Note, 
 as he has left its negotiability unrestrained.^ 
 
 § 148. Sometimes the indorsement contains a writtlh 
 agreement to dispense with any demand upon the maker, or 
 with notice of the dishonor, if the. Note is not duly paid. In 
 such cases, the indorser will be liable thereon, not only to his 
 immediate indorsee, but to £very subsequent holder ; for the 
 language will be construed to import an absolute dispensar 
 tion with the ordinary conditions of an indorsement.* And 
 this proceeds upon the just maxim, Quilibet potest renwir 
 ciare juri pro se introducto.^ But where the agreement is 
 
 the law, as to reasonable demand and notice upon Notes payable on de- 
 mand. Myrick v. Hasey, 27 Maine, 9. See, as to guaranty of Bills, Po- 
 thier, De Change, n. 26, 50, 122, 123 ; Code de Comm. de I'Aval, art. 141, 
 142; Pardessus, Droit Comm. Tom. 1, art. 351, 394-399 ; Chitty.on Bills, 
 ch. 6, pp. 272, 273 (8th edit. 183.3) ; 3 Kent, Leet. 44, p. 90, note ((£), 
 (4th edit.) ; Ketchell v. Burns, 24 Wend. 456. 
 
 ' Ibid. 
 
 ^ See, on this point. Miller ». Gaston, 2 Hill, N. Y. 188 ; McLaren v. 
 Watson, 26 Wend. 425 ; Story on Bills, § 372, and note ; Id. §§ 455-458, 
 and notes ; Hall v. Newcomb, 3 Hill, N. Y. 233. 
 
 ' Upham V. Prince, 12 Mass. 14 ; Partridge v. Davis, 20 Verm. 500. See 
 Blakely v. Grant, 6 Mass. 386 ; Ketchell v. Burns, 24 Wend. 456 ; Allen v. 
 Kightmere, 20 John. 365. But see contra, Taylor v. Binney, 7 Mass. 479 ; 
 Canfield u. Vaughan, 8 Martin, 682. See also Lamourieux u. Hewit, 5 
 Wend. 307 ; Story on Bills, § 215. ' • 
 
 * Puller V. McDonald, 8 Greenl. 215 ; Lane v. Steward, 20 Maine, 98 ; 
 Story on Bills, §§ 317, 320, 371 ; Berkshire Bank v. Jones, 6 Mass. 524. 
 
 ' 2 Co. InsL 183; Wingate, Maxims, 483; Norton v. Lewis, 2 Conn. 
 478 ; Leonard u. Gary, 10 Wend. 504 ; Taunton Bank v. Richardson, 6 
 Pick. 436. But see Chitty on Bills, ch. 10, pp. 483, 484 (8th edit. 1833) ; 
 Central Bank v. Davis, 19 Pick. 373, 375 ; Andrews v. Boyd, 3 Met. 434. 
 Some of the cases upon this subject stand upon very nice grounds, and are 
 
CHAP. IV.] EIGHTS OF PAETIES ON TRANSFERS. 171 
 
 not on the face of the indorsement, but is merely oral be- 
 tween the indorser and his immediate indorsee, the effect 
 ■would seem to be limited to the immediate parties ; and 
 even here doubts have been entertained whether the evi- 
 dence is admissible between them, since it has been thought 
 to vary and control the ordinary obligations of an indorse- 
 ment.i These doubts, however, have been overcome in 
 America ; and the doctrine is established, that such evidence 
 is admissible.^ 
 
 § 149. A conditional indorsement is one which involves 
 some fact or event, upon the occurrence of which the validity 
 of the indorsement is ultimately to depend ; and which is 
 either to give effect to it, or to avoid it ; ^ and it may be 
 
 not, perhaps, always easily reconcilable with the general principle here 
 stated. In Free v. Hawkins, 8 Taunt. 92, it was held, that evidence of a 
 parol agreement between the holder and the indorser of a Promissory 
 Note, at the time of making and indorsing it, that payment should not be 
 demanded of the maker of the Note, at the time when it became due, nor 
 until after the sale of certain estates of the maker, was held inadmissible, 
 because it controlled and varied the legal obligations of the indorser. Chitty 
 on Bills, ch. 10, p. 483 (8th edit. 183.3) ; Bayley on Bills, ch. 12, pp. 491, 
 492 (5th edit. 1830). The same point was, in effect, adjudged in Wood- 
 bridge V. Spooner, 3 B. & Aid. 233 ; Rawson v. Walker, 1 Stark. 361 ; 
 Hoare v. Graham, 3 Camp. 57 ; Bank of United States v. Dunn, 6 Peters, 
 51; Spring v. Lovett, 11 Pick. 417; Allen v. Furbish, 4 Gray, 504; 
 Trustees in Hanson v. Stetson, 5 Pick. 506. But there is some difficulty in . 
 reconciling this doctrine with that promulgated by the Supreme Court of 
 the United States, in the case of Renner fc. Bank of Columbia, 9 Wheat. 
 581. But parol evidence of a bargain, after a Note or Bill has been given 
 or transferred, may be admissible to establish a waiver of notice, or a valid 
 agreement to postpone payment, if founded on a sufficient consideration. 
 Bayley on Bills, ch. 12, p. 493 (5th edit. 1830) ; Hoare v. Graham, 3 
 Camp. 57; Gibbon v. Scott, 2 Stark. 286; Story on Bills, § 317, note; 
 Id. § 371. 
 
 ' Free v. Hawkins, 8 Taunt. 92; Hoare u. Graham, 3 Camp. 57; Bayley 
 on Bills, ch. 12, pp. 492, 493 (5th edit). 
 
 "^ Story on Bills, § 317, and note ; Id. § 371 ; Taunton Bank v. Richard- 
 son, 5 Pick. 436, 443 ; Central Bank v. Davis, 19 Pick. StI, 375 ; Leffing- 
 well V. White, 1 John. Cas. 99 ; Union Bank u. Hyde, 6 Wheat. 572. But 
 see contra, Chitty on Bills, ch. 10, pp. 466, 485 (8th edit.); Bayley on 
 Bills, ch. 12, pp. 492, 493 (5th edit). 
 
 ' Story on Bills, § 206. 
 
l'T2 PROMISSORY NOTES. [OHAP. IV. 
 
 either a condition precedent or a condition subsequent. If 
 it be a condition precedent, wliich is to give it validity, then, 
 upon the occurrence of the fact or event, the title of the in- 
 dorsee becomes absolute ; if it be a condition subsequent, 
 which is to avoid it, then the title of the indorsee, upon the 
 occurrence of the fact or event, becomes void, or is defeated.^ 
 A. condition attached to an indorsement has a very different 
 operation from that attached to the original formation of the 
 Note. In the latter case, as we have seen,^ the instrument 
 loses its character as a Promissory Note, and is not negotia- 
 ble. But, in the former case, neither the original character 
 of the Note, nor its negotiability, is controlled by the condi- 
 tion ; and the only effect is to subject the title of the indorsee 
 to its full operation.^ If, therefore, the condition of the in- 
 dorsement be precedent^ until it is fulfilled, no title passes to 
 the indorsee; if it be a condition subsequent, then, when 
 fulfilled, his title is defeated.* And, of course, in each case, 
 every subsequent holder takes the title subject to the same 
 stipulations.® Thus, for example, if an indorsement on a 
 Promissory Note be made, " Pay the contents to A B on my 
 being gazetted ensign within two months," there, if the in- 
 dorser is not so gazetted within the time, the title of the 
 indorsee, and of every subsequent holder, becomes void, and 
 the right thereto reverts to the original indorser.^ On the 
 other hand, if he is so gazetted within the time, then the title 
 
 ' Chitty on Bills, ch. 6, § 261 (8th edit.). 
 ' Ante, § 22. 
 
 • Thomson on Bills, ch. 3, § 2, p. 275, 276 (2d edit.) ; Bayley on Bills, 
 ch. 5, § 1, p. 126 (5.th edit.) ; Chitty.ou Bills, eh. 6, p. 261 (8th edit.); 
 Tappan v. Ely, 15 Wend. 362. See Blakely u. Grant, 6 Mass. 386; Up- 
 ham V. Prince, 12 Mass. 14. But see Taylor v. Binney, 7 Mass. 479 ; Can- 
 field V. Vaughan, 8 Martin (Louis.), 682. 
 
 * Story on Bills, § 217 ; Bayley on Bills, ch. 5, § 1, p. 126 (5th edit.) ; 
 Chitty on Bills, xh. 6, p. 261 (8th edit.) ; Wright v. Hay, 2 Starli. 398. 
 
 ' Ibid. ; Tap*n v. Ely, 15 Wend. 362. 
 
 ' Bayley on Bills, ch. 5, § 1, p. 126 (5th edit.) ; Chitty on Bills, ch. 6, 
 p. 261 (8th edit.) ; Robertson v. Kensington, 4 Taunt. 30 ; Thomson on 
 Bills, ch. 3, § 2, p. 274 (2d edit.). 
 
CHAP. IV.] EIGHTS OF PARTIES ON TEANSFEES. 173 
 
 t 
 is absolute and irrevocable.^ So, if a Note be indorsed, 
 
 " Pay to A B or order, if he arrives at twenty-one years of 
 age," or, " if he is living when it becomes due," is a condi- 
 tional indorsement of the like nature, upon a condition pre- 
 cedent. On the other hand, if a Note be indorsed, " Pay to 
 A B or order, unless, before payment, I give you notice to 
 the contrary," or, " unless I pay him a debt, which I owe 
 him, before the Note becomes due," is an indorsement upon 
 'a condition subsequent. 
 
 § 150. The French law, like' ours, admits of ri*trictive, 
 qualified, and conditional indorsements, and gives them full 
 effect.^ But that law, like ours, requires that the restriction, 
 qualification, or condition should appear on the face of the 
 instrument, or, at least, should be known to the subsequent 
 holder, otherwise it will not bind him.^ 
 
 § 151. There is no limit to the niimber of successive in- 
 dorsements which may be made up6n a Promissory Note ; 
 and if they cannot all be written on the Note itself, a pa- 
 per may be annexed ^thereto, which is called, in France, 
 Alonge^ on which the latter indorsements may be written, 
 and which will be deemed a part of the Note, and of the same 
 obligation as if written upon the Note itself.^ Sometimes a 
 Note, which has been indorsed by a prior indorser, comes 
 back to him by reindorsement in the course of business. In 
 such a case he will be reinstated in his original rights in the 
 Note ; but he will ordinarily have no claim upon any of the 
 indorsers subsequent to his own name. Peculiar circum- 
 stances may exist, which may vary the general rule ; but 
 then the party would not claim strictly in his character as a 
 
 ' Ibid. 
 
 ' Pardessus, Droit Comm. Tom. 2, art. 341, 348. 
 
 » Ibid. ; Bayley on Bills, ch. 5, § 1, pp. 125 - 129 (5th edit.) ; Chitty on 
 Bills, eh. 5, pp. 161 - 164 (8th edit.) ; Hoare v. Graham,-3 Camp. 57. 
 
 * Story on Bills, § 204 ; ante, § 121. 
 
 ' Chitty on Bills, ch. 6, p. 262 (8th edit. 1833) ; Story on Bills, § 204 ; 
 Pardessus, Droit Comm. Tom. 2, art. 343 ; Pothier, De Change, n. 24 ; 
 Folger V. Chase, 18 Pick. 63. 
 
174 PEOMISSOEY NOTES. [CHAP. IV. 
 
 regular party to the Note, but upon the special contract 
 growing out of the circumstances.^ [As where the first in- 
 dorsement is without recourse, or for the accommodation 
 of the defendant, then if the first indorser become the holder 
 he may sue the second indorser.^] 
 
 § 152. By our law, no particular form is prescribed, in 
 which an indorsement on a Promissory Note is required to 
 be made, the mere signature being of itself (as we have 
 seen^), in general, sufficient ; and, indeed, this (as has been 
 justly observed) is the most concise mode of transferring an 
 interest, or creating a contract, which could be invented, 
 where the transfer is intended to be general and absolute, 
 and the liabilities of tlie indorser precisely those which arise 
 by law from the nature of an indorsement.* And although 
 the term " indorsement," strictly speaking, seems to import a 
 writing on the back of the Note itself, yet it is well estab- 
 lished that it may be made on the face of the Note ; ^ and, 
 as we have just seen, by a paper annexed thereto (une 
 alonge).^ Where the payee is unable to write, he has no 
 other alternative or resource than to make the indoi'sement 
 as a marksman, with the attestation of another person, or, 
 which is far better, by an agent expressly authorized.'^ 
 
 § 153. In the next place, as to the rights, duties, and obli- 
 
 • Chitty on Bills, ch. 2, pp. 29, 30 (8th edit. 1833) ; Id. ch. 4, p. 239 ; 
 Bishop V. Hayward, 4 Term, 470 ; Britten v. Webb, 2 B. & C. 483 ; Mor- 
 ris V. Walker, 15 Queen's Bench, 599 ; Smith v. Marsack, 6 C. B. 486 ; 
 Bayley on Bills, ch. 9, pp. 329 - 331, 388 (5th edit. 1830) ; Story on Bills, 
 §218. 
 
 " Morris v. Walker, 15 Queen's Bench, 589 ; Smith v. Marsack, 6 C. B. 
 486 ; Cady v. Shepard, 12 Wis. 639. 
 » Ante, § 121. 
 
 * Chitty on Bills, ch. 6, p. 253 (8th edit.) ; Pardessus, Droit Comm. 
 Tom. 2, art. 343. 
 
 * Chitty on Bills, ch. 6, p. 253 (8th edit.) ; Rex v. Bigg, 1 Str. 18 ; Yar- 
 borough V. Bank of England, 16 East, 6, 12. 
 
 • Ante, § 150. 
 
 ' Chitty on Bills, Pt. 2, ch. 5, p. 621 (8th edit.). See also Pardessus, 
 Droit Comm. Tom. 2, art. 343. 
 
CHAP. IV.] BIGHTS OF PARTIES ON TRANSFERS. 175 
 
 gations of the indorsee, or holder of a negotiable Promissory 
 Note. These have been summed up by Mr. Bayley, in a 
 very brief and expressive manner, and in language equally 
 applicable to Bills and Notes. He says : " The receipt of a 
 Bill or Note implies an undertaking from the receiver, to 
 every party to the Bill or Note, who would be entitled to 
 bring an action on paying it, to present in proper time, the 
 one, where necessary, for acceptance, and each for payment ; 
 to allow no extra time for payment ; and to give notice with- 
 out delay to such person of a failure in the attempt to pro- 
 cure a proper acceptance or payment ; and a default in any 
 of these respects will discharge such person from all respon- 
 sibility on account of a non-acceptance or non-payment, and 
 will, unless the Bill or Note were on an improper stamp, 
 make it operate as a satisfaction of any debt or demand for 
 which it vas given." ^ The particular mode in which these 
 duties are to be performed will come under our examination 
 more fully iii a future part of these Commentaries. And it 
 is only necessary here to add, that this language requires 
 some qualification, and cannot be strictly applied to the case 
 of an accommodation maker of a Note, or an accommodation 
 acceptor of a Bill ; for, so far as the indorsee or holder is 
 concerned, they are to be treated exactly as if they were the 
 primary and original debtors. 
 
 § 154. The remarks which have been thus far made sup- 
 pose that the Promissory Notes, of which we have been speak- 
 ing, are made and indorsed in the same state or country, so 
 that no diversity exists as to the rights, duties, and obliga- 
 tions springing therefrom. But a Note may be made in one 
 country, and indorsed successively in other different states 
 and countries, governed by different laws, and therefore im- 
 porting different rights, duties, and obligations. Under such 
 circumstances, it becomes important to inquire by what laws 
 the contracts thus created are to be governed. This subject 
 properly belongs to a treatise iipon the Conflict of Laws ; and 
 1 Bayley on Bills, ch. 7, § 1, pp. 217, 218 (5th edit.). 
 
176 . PEOMISSORY NOTES. [CHAP. IV. 
 
 having been treated at large in my Commentaries on that 
 subject, as well as in my Commentaries on Bills of Exchange, 
 it will be here very briefly discussed ; but as the present work 
 is designed to be independent of any other, it ought not to 
 be wholly passed over in silence. 
 
 § 155. The general rule, then, is, that every contract, as 
 to its validity, nature, interpretation, and effect, is to be 
 governed by the law of the place where it is made and is to 
 be executed, which is compendiously expressed, as the Lex 
 Loci contractiis.^ In the first place, then, as to the validity 
 of contracts. Generally speaking, the validity of a contract 
 is to be decided by the law of the place where it is made. 
 If valid there, it is, by the general law of nations Q'ure gen- 
 tiuni), held valid everywhere, by the tacit or implied consent' 
 of the parties.^ The rule is founded, not merely in the con- ■ 
 venience, but in the necessities, of nations ; for, otherwise, it 
 would be impracticable for them to carry on an extensive in- 
 tercourse and commerce with each other. The whole system 
 of agencies, of purchases and sales, of mutual credits, and of 
 transfers of negotiable instruments, rests on this foundation ; 
 and the nation which should refuse to acknowledge the com- 
 mon principles would soon find its whole commercial inter- 
 course reduced to a state_ like that in which it now exists 
 among savage tribes, among the barbarous nations of Suma- 
 
 ' Story on Conflict of Laws, §§ 242 - 244 ; Id. §§ 266 - 270. 
 
 " Story on Conflict of Laws, § 242; Pearsall v. Dwight, 2 Mass. 88, 89. 
 See Casaregis, Disc. 179, §§ 1, 2; Willings v. Consequa, 1 Peters, C. C. 
 172 ; 2 Kent, Lect. 39, pp. 457, 458 (3d edit.) ; De Sobry v. De Laistre, 2 
 Harr. & John. 193, 221, 228; Smith v. Mead, 3 Conn. 253; Medbury w. 
 Hopkins, 3 Conn. 472; Houghton v. Page, 2 N. H. 42; Dyer «. Hunt, 5 
 N. H. 401 ; Erskine's Ins. B. tit. 2, §§ 39-41, pp. 514 - 516 ; Trimbey v. 
 Vignier, 1 Bing. N. C. 151, 159; S. C. 4 Moore & Scott, 695; An- 
 drews V. Pond, 13 Peters, 65 ; Andrews v. His Creditors, 11 Louis. 405; 
 Story on Conflict of Laws, § 316 a; Bayley on Bills, ch. (A) Am. edit, 
 by Phillips & Sewall, 1836, pp. 78 - 86 ; 1 Burge, Comment, on Col. and 
 For. Law, Pt. 1, ch. 1, pp. 29, 30 ; Whiston v. Stodder, 8 Martin, 95 ; Bank 
 of United States u. Donnally, 8 Peters, 361, 372; Wilcox v. Hunt, 13 
 Peters, 378, 379; Palmer w. Yarrington, 1 Ohio St. 253. 
 
CHAP. IV.] RIGHTS OF PARTIES ON TRANSFERS. l77 
 
 tra, and among other portions of Asia, washed by the Pacific. 
 " Jus ai;tem gentium " (say the Institutes of Justinian) 
 " omni humano generi commune est ; nam, usu exigente, et 
 humanis necessitatibus, gentes humanae jura queedem sibi 
 constituerunt. Et ex hoc jure gentium, omnes pene con- 
 tractus introducti sunt, ut emptio et venditio, locatio et con- 
 ductio, societas, depositum mutuum, et alii innumerabiles." ^ 
 No more forcible application can be propounded of this im- 
 perial doctrine, than to the subject of international private 
 contracts.^ In this, as a general principle, there seems a 
 universal c^onsent of all courts and all jurists, foreign or 
 domestic.^ 
 
 § 156. The same. rule applies, vice versa, to the invalidity 
 of contracts ; if void or illegal by the law of .the place of the 
 contract, they are, generally, held void and illegal every- 
 where.* This would seem to be a principle derived from the 
 
 ' Inst. Lib. 1, tit. 2, § 2. 
 
 ' 2 Kent, Lect. 39, pp. 454, 455, and note (3d edit.) ; 10 Toullier, art. 
 80, note; Pardessus, Droit Comm. Tom. 5, art. 1482; Chartres v. Cairnes, 
 16 Martin, 1. 
 
 ' The oases which support this doctrine are so numerous that it would be 
 a tedious task to enumerate them. They may, generally, be found col- 
 lected in the Digests of the English and American Reports, under the head 
 of Foreign Law, or Lex Loci. The principal part of them are collected in 
 4 Cowen, 510, note ; and in 2 Kent, Lect. 39, p. 457, et seq. in the notes. 
 See also Fonblanque on Eq. B. 5, ch. 1, § 6, note (t), p. 443; Brackett v. 
 Norton, 4 Conn. 517 ; Medbury v. Hopkins, 3 Conn. 472; Smith v. Mead, 
 3 Conn. 253 ; De Sobry v. De Laistre, 2 Harr. & John. 193, 221, 228 ; 
 Trasher v. Everhart, 3 Gill & John. 234. The foreign jurists are equally 
 full, as any one will find, upon examining the most celebrated of every na- 
 tion. They all follow the doctrine of Dumoulin. " In concernentibus con- 
 traotibus, et emergentibus tempore contractus, inspici debet locus, in quo 
 contrahitur." Molin. Comment ad Consuet. Paris, tit. 1, § 12, Gloss, n. 37, 
 Tom. 1, p. 224 ; Story on Conflict of Laws, §§ 260, 300 d. See Bouhier, 
 ch. 21, § 190; 2 BouUenois, Observ. 46, p. 458. Lord Brougham, in War- 
 render u. Wfcender, 9 Bligh, 110, made some striking remarks on this 
 subject, which are cited in Story on Conflict of Laws, § 226 b, note , Story 
 on Bills, § 132. 
 
 * Story on Conflict of Laws, § 243 ; Huberus, Lib. 1, tit. 3, De Conflictu 
 Leg. §§ 3, 5 ; Van Reimsdyk u. Kane, 1 Galiis. 375; Pearsall v. Dwight, 
 12 
 
178 PBOMISSOBY NOTES. [CHAP. IV. 
 
 very elements of natural justice. The Code has expounded 
 it in strong terms. " Nullum enim pactum, nuUam conven- 
 tionem, nullum contractum, inter eos yideri volumus subse- 
 ciJtum, qui contrahunt, lege contrahere prohibente." ^ If a 
 contract be void in its origin J it seems difficult to find any 
 principle upon which any subsequent validity can be given 
 to it in any other country.^ 
 
 § 157. But there is an exception to the rule, as to the uni- 
 versal validity of contracts, which is, that no nation is bound 
 to recognize or enforce any contracts which are injurious to 
 its own interests, or to those of its own subjects.^ Huberus 
 has expressed it in the following terms : " Quatenus nihil 
 potestati aut juri alterius Imperantis jusqiie civium praejudi- 
 cetur " ; * and Mr. Justice Martin still more clearly expresses 
 it, in saying, that the exception applies to cases in which the 
 contract is immoral or unjust, or in which the enforcing it in 
 a State would be injurious to the rights, the interests, or the 
 convenience of ^uch State, or qf its citizens.^ This exception 
 results from the consideration, that the authority of the acts 
 and contracts done in other States, as well as the laws by 
 which they are regulated, ai'e not, propria vigore, of any 
 efficacy beyond the territories of that State ; and whatever 
 effect is attributed to them elsewhere is from comity, and not 
 
 2 Mass. 88, 89 ; Touro v. Cassin, 1 Nott & McCord, 173; De Sobryt). De 
 Laistre, 2 Harr. & John. 193, 221, 225; Houghton v. Page, 2 N. H. 42; 
 Dyer v. Hunt, 5 N. H. 401 ; Van Schaick' v. Edwards, 2 John. Cas. 365 ; 
 Robinson v. Bland, 2 Burr. 1077 ; Burrows v. Jemino, 2 Str. 732; Alves v. 
 Hodgson, 7 Term, 241 ; 2 Kent, Lect. 39, pp. 457,458 (3d edit.) ; La Jeune 
 Eugenie, 2 Mason, 459 ; Andrews v. Pond, 13 Peters, 65, 78. 
 
 > Cod. Lib. 1, tit. 14, 1. 5. 
 
 ' Story on Bills, § 134. 
 
 = Story on Conflict of Laws, § 244; Green woo^ v. Curtis, 6 Mass. 378, 
 379; Blanchard v. Russell, 13 Mass. 1, 6; Whiston v. Stodder, 8 Martin, 
 95; De Sobry v. De Laistre, 2 Harr. & John. 193, 228 ; Trasher v. Ever- 
 hart, 3 Gill & John. 234 ; 3 Burge, Comm. on Col. and For. Law, Pt. 2, ch. 
 20, p. 779 ; Story on Conflict of Laws, §§ 348-351 ; Andrews v. Pond, 13 
 Peters, 65, 78. 
 
 * Huberus, Lib. 1, tit. 3, De Conflictu Leg.§ 2. 
 
 ' Whiston V. Stodder, 8 Martin, 95, 97. 
 
CHAP. IV.] EIGHTS OF PAETIKS ON TRANSFERS. 179 
 
 ifer 
 
 from strict right.^ And every independent community will 
 and ought to judge for itself, how far that comity ought to 
 extend.^ The reasonable limitation is, that it shall not sufT^ 
 any prejudice by its comity.^ 
 
 § 158. Another rule, naturally flowing from, or illustra- 
 tive of, that already stated, respecting the validity of con- 
 tracts, is, that all the formalities, proofs, or authentications 
 of them, which are required by the Lex Loci, are indispen- 
 sable to their validity everywhere else.* And this rule seems 
 fully established in the Common Law. Thus, if, by the laws 
 of a country, a contract is void unless it is written on 
 stamped paper, it ought to be held void everywhere ; for, 
 unless it be good there, it can have no obligation in any 
 other country .5 It might be different if the contract had 
 
 ' Story on Conflict of Laws, §§ 7, 8, 18, 20, 22, 23, 36. 
 
 = Ibid. 
 
 ' Ibid., §§. 25, 27, 29 ; Huberus, Lib. 1, tit. 3 ; De Confliotu Leg. §§ 2, 3, 
 6 ; Trasher v. Everhart, 3 Gill & John. 233 ; Greenwood v. Curtis, 6 Mass. 
 378 ; 2 Kent, Lect. 39, p. 457 (4th edit.) ; Pearsall v. Dwight, 2 Mass. 88, 
 89 ; Eunomus, Dial. 3, § 67 ; Story on Bills, § 135. 
 
 * See Story on Conflict of Laws, § 260 ; 1 Burge, Comment, on For. and 
 Col. Law, Ft. 1, ch. 1, pp. 29, 30 ; 3 Burge, Comm. Ft. 2, ch. 20, pp. 752- 
 764 ; FceUx, Conflict, des Lois, Kevue Etrang. et Franc. Tom. 7, 1840, 
 §§ 40 - 51, pp. 346 - 360 ; Warrender v. Warrender, 9 Bligh, 111 ; Story 
 on Conflict of Laws, § 260 a. 
 
 ^ Alves V. Hodgson, 7 Term, 241 ; Clegg v. Levy, 3 Camp. 166. But 
 see Chitty on Bills, p. 143, note (8th edit.) ; and Wynne v. Jackson, 2 
 Kussell, 351 ; 3 Burge, Comm. on Col. and For. Law, Ft. 2, ch. 20, p. 762. 
 The case of Wynne v. Jackson, 2 Kussell, 351, is certainly at variance 
 with this doctrine. It was a Bill, brought to stay proceedings at law on a 
 suit, brought in England by the holder, against the acceptor of Bills of Ex- 
 change, made and accepted in France, and which, in an action brought in 
 the French courts, had been held invalid, for want of a proper French 
 stamp. The Vice- Chancellor held, " that the circumstance of the Bills 
 being drawn in France, in such a form that the holder could not recover on 
 them in France, was no objection to his recovering on them in an English 
 court." This doctrine is wholly irreconcilable with that in Alves v. Hodg- 
 son, 7 Term, 241, and Clegg v. Levy, 3 Camp. 166 ; and if by the laws of 
 France such contracts were void, if not on stamped paper, it is equally un- 
 supportable upon acknowledged principles. In the case of James v. Cath- 
 erwood, 3 Dowl. & Kyi. 190, where assumpsit was brought for money lent 
 
180 PEOMISSOEY NOTES. [CHAP. IV. 
 
 been made payable in another country ; or, if the objection 
 were not to the validity of the contract, but merely to the 
 
 ij^fcPranee, and unstamped paper receipts were produced in proof of the 
 iSm, evidence was offered to show that, by the laws of France, such re- 
 ceipts required a stamp to render them valid ; but it was rejected by the 
 Court, and the receipts were admitted in evidence, upon the ground that 
 the Courts of England could not take notice of the revenue laws of a for- 
 eign country. But this is a very insufficient ground, if the loan required 
 such receipt and stamp to make it valid as a contract. And, if the loan 
 was good per se, but the stamp was requisite to make the receipt good as 
 evidence, then another question might arise, whether other proof, than that 
 required by the law of France, was admissible, of a written contract. This 
 case also is inconsistent with the case in 3 Camp. 166. Can a contract be 
 good in any country, which is void by the law of the place where it is 
 made, because it wants the solemnities required by that law ? Would a 
 parol contract, made in England, respecting an interest in lands, against 
 the Statute of Frauds, be held valid elsewhere ? Would any court dis- 
 pense with the written evidence required upon such a contract ? On a 
 motion for a new trial, the Court refused it. Lord Chief Justice Abbot say- 
 ing : " The point is too plain for argument. It has been settled, or, at least, 
 considered as settled, ever since the time of Lord Hardwicke, that in a 
 British court we cannot take notice of the revenue laws of a foreign state. 
 It would be productive of prodigious inconvenience, if, in every case in 
 which an instrument was executed in a foreign country, we were to re- 
 ceive in evidence what the law of that country was, in order to ascertain 
 whether the instrument was or was not valid." With great submission to 
 his lordship, this reasoning is wholly inadmissible. The law is as clearly set- 
 tled as anything can be, that a contract, void by the law of the place where 
 it was made, is void everywhere. Yet, in every such case, whatever may 
 be the inconvenience, courts of law are bound to ascertain what the for- 
 eign law is. And it would be a perfect novelty in jurisprudence to hold, 
 that an instrument which, for want of due solemnities in the place where 
 it was executed, was void, should yet be valid in other countries. We can 
 arrive at such a conclusion only by overturning well-established principles. 
 The case alluded to, before Lord Hardwicke, was probably Boucher v. Law- 
 son (Cases T. Hard. 85, Id. 194), which was the case of a contract between 
 Englishmen, to be executed in England, to carry on a smuggling trade 
 against the laws of Portugal. Lord Hardwicke said, that such a trade was 
 not only a lawful trade in England, but very much encouraged. The case 
 is wholly distinguishable from the present case ; and from that of any con- 
 tract, made in a country and to be executed there, which is invsdid by its 
 laws. A contract made in Portugal by persons domiciled there, to carry on 
 smuggling against its laws, would or ought to be held void everywhere. 
 See also 3 Chitty on Comm. and Manuf. ch. 2, p. 166. 
 
CHAP. IV.] EIGHTS OF PARTIES ON TRANSFERS. 181 
 
 • 
 
 admissibility of other proof of the contract in the foreign 
 court,^ where a suit is brought to enforce it ; or, if the con- 
 tract concerned real or immovable property, situate in an- 
 other country, whose laws are different; respecting which, 
 as we shall presently see, there is a difference of opinion 
 among foreign jurists, although, in England and America, 
 the rule seems firmly established, that the law rei sites, and 
 not that of the place of the contract, is to prevail.^ 
 
 " 159. In the next place, as to the nature of contracts, the 
 like rule prevails, that the Lex Loci contractus is to govern.^ 
 By the nature of a contract is meant those qualities which 
 properly belong to it, and by law and custom always accom- 
 pany it, or inhere in it.* Foreign jurists are accustomed to 
 call such qualities " Naturalia contractus.® Ea enim, quse 
 auctoritate legis vel consuetudinis contractum comitantur, 
 eidem adherent, Naturalia a Doctoribus appellantur. Lex 
 
 ' Ludlow V. Van Rensselaer, 1 John. 93 ; James v. Catherwood, 3 Dowl. 
 & Eyl. 190. See Clarke v. Cochran, 3 Martin, 358, 360, 361; Brown o. 
 Thornton, 6 A. & El. 185 ; Yates v. Thomson, 3 Clark & Fin. 544. 
 
 ^ Story on Conflict of Laws, §§ 363-373,435-445; Foelix Confl. des 
 Lois. Kevue Etrang. et Pran9. Tom. 7, 1840, §§ 40-50, pp. 345 - 359 ; 
 Story on Bills, § 137. 
 
 = Story on Bills, § 139. 
 
 * Pothier, as well as other jurists, distinguish between the essence, the 
 nature, and the accidents of contracts ; the former includes whatever is 
 indispensable to the constitution of it ; the next, whatever is included in it, 
 without being expressly mentioned, by operation of law, but is capable of a 
 severance without destroying it ; and the last, those things which belong to 
 it only by express agreement. Without meaning to contest the propriety 
 of this division, I am content to include the two former in the single word 
 "nature," as quite conformable to our English idiom. Cujas also adopts 
 the same course. See Pothier, Oblig. n. 5. See also 2 BouUenois, Ob- 
 serv. 46, pp. 460-462; Bayon v. Vavasseur, 10 Martin, 61; Merlin, Re- 
 pertoire, Convention, § 2, u. 6, 357; Rodenb^irg, De. Div. Stat. tit. 2, ch. 5, 
 §16; 2 BouUenois, Observ. App'x, 50; 1 BouUenois, Observ. 688; 3 
 Burge, Comm. on Col. and For. Law, Pt. 2, ch. 20, pp. 848-851. 
 
 ' 1 BouUenois, Observ. 23, p. 466 ; 2 Id. 46, pp. 460, 461 ; Voet, De 
 Stat. § 9, ch. 10, p. 287; Id. p. 325 (edit. 1661) ; Hertius, De CoUis. Leg. 
 Tom. 1, § 10, p. 127 ; Id. pp. 179, 180 (edit. 1716) ; Story on Conflict of 
 Laws, 263, 301 /. 
 
182 PROMISSORY NOTES. [CHAP. IV. 
 
 enim altera est quasi natura, et in naturam transit. Atque 
 quoad naturalia contractuum etiam forenses statuta loci con- 
 tractus observare debent." ^ Thus, whether a contract be a 
 personal obligation, or a real obligation ; whether it be cout 
 ditional or absolute ; whether it be a principal, or an acces- 
 sory obligation ; whether it be that of principal, or of surety ; 
 whether it be of limited, or of universal operation ; these are 
 points properly belonging to the nature of the contract, and 
 are dependent upon the law and custom of the place of the 
 contract, whenever there are no express terms in the con- 
 tract itself, which otherwise control them. By the law of 
 some countries, there are certain joint contracts, which bind 
 each party for the whole, in solido ; and there are other joint 
 contracts, where the parties are, under certain circumstances, 
 bound only for several and distinct portions.^ In each case, 
 the law of the place of the contract regulates the nature of 
 the contract, in the absence of any express stipulations.^ 
 These may, therefore, be said to constitute the nature of the 
 contract.* 
 
 ' Lauterback, Dis. 104, Pt. 3, n. 58, cited 2 BouUenois, Observ. 46, p. 460. 
 
 ^ 4 Burge, Comment, on Col. and For. Law, Pt. 2, ch. 15, §4, pp. 722-735; 
 Story on Conflict of Laws, §§ 263, 322. 
 
 ' Pothier on Oblig. n. 261-268; Von Leeuwen, Comment. B. 4, ch. 4,§ 
 1 ; Ferguson v. Flower, 16 Martin, 312 ; 2 BouUenois, Observ. 46, p. 463 ; 
 Code Civil of France, art. 1197, 1202, 1220, 1222; Id. Code of Comm. art. 
 22, 140. One may see how strangely learned men will reason on subjects 
 of this nature by consulting BouUenois. He puts the case of a contract 
 made in a country where all the parties would be bound in solido, and, by 
 the law of their own domicile, they would be entitled to the benefit of a 
 division, and vice versS ; and asks. What law is to govern ? In each case 
 he decides, that the law should govern which is most favorable to the debtor. 
 " Ainsi, les obliges solidaires sont coutracte sous une'loi, qui leur est favo- 
 rable ; j'embrasse cette loi ; elle leur est contraire, j'embrasse la loi de leur 
 domicile.'' 2 BouUenois, Observ. 46, pp. 463, 464. See also Bouhier, ch. 
 21, §§ 198, 199. 
 
 * See Henry on Foreign Law, 39. Pothier on Obligations, n. 7, has 
 explained the meaning of the words, " the nature of the contract," in the 
 following manner : " Things, which are only of the nature of the contract, 
 are those which, without being of the essence, form a part of it, though 
 not expressly mentioned ; it being of the nature of the contract that they 
 
CHAP. IV.] EIGHTS OF PARTIES ON TRANSFERS. 183 
 
 § 160. In the next place, as to the obligation of the con- 
 tract, which, although ofteji confounded with, is yet distin- 
 
 shall be included and understood. These things have an intermediate place 
 between those which are of the essence of the contract and those which 
 are merely accidental to it, and differ from both of them. They diflfer 
 from those which are of the essence of the contract, inasmuch as the con- 
 tract may subsist without them, and they may be excluded by the express 
 agreement of the parties ; and they differ from things which are merely 
 accidental to it, inasmuch as they form a part of it without being particu- 
 larly expressed, as may be illustrated by the following examples. In the 
 contract of sale, the obligation of warranty, which the seller contracts 
 with the purchaser, is of the nature of the contract of sale ; therefore the 
 seller, by the act of sale, contracts this obligation, though the parties do not 
 express it, and there is not a word respecting it in the contract ; but, as the 
 obligation is of the nature, and not of the essence, of the contract of sale, 
 the contract of sale may subsist without it ; and, if it is agreed that the 
 seller shall not be bound tp warranty, such agreement will be valid, and 
 the contract will continue a real contract of sale. It is also of the nature 
 of the contract of sale, that, as soon as the contract is completed by the con- 
 sent of the parties, although before delivery, the thing sold is at the risk of 
 the purchaser ; and that, if it happens to perish without the fault of the 
 seller, the loss falls upon the purchaser, who is, notwithstanding the misfor- 
 tune, liable for the price ; but, as that is only of the nature, and not of the 
 essence, of the contract, the contrary may be agreed upon. Where a 
 ■ thing is lent to be specifically returned [commodatur], it is of the nature of 
 the contract that the borrower shall be answerable for the slightest negli- 
 gence in respect of the article lent. He contracts this obligation to the 
 lender by the very nature of the contract, and without anything being said 
 about it. But, as this obligation is of the nature, and not of the essence, of 
 the contract, it may be excluded by an express agreement, that the bor- 
 rower shall only be bound to act with fidelity, and shall not be responsible 
 for any accidents merely occasioned by his negligence. It is also of the 
 nature of this contract, that the loss of the thing lent, when it arises from 
 inevitable accident, falls upon the lender. But, as that is of the nature, 
 and not of the essence, of the contract, there may be an agreement to 
 charge the borrower with every loss that may happen until the thing is 
 restored. A great variety of other instances might be adduced from the 
 different kinds of contracts. Those things which are accidental to a con- 
 tract are such as, not being of the nature of the contract, are only included 
 in it by express agreement. For instance, the allowance of a certain time 
 for paying the money due, the liberty of paying it by instalments, that of 
 paying another thing instead of it, of paying to some other person than the 
 creditor, and the like, are accidental to the contract ; because they are 
 not included in it, without being particularly expressed." Story on Bills, 
 § 139. 
 
184 PEOMSSORY NOTES. [CHAP. IV. 
 
 guishable from its nature,^ The obligation of a contract is 
 the duty to perform it, w];iatever may be its nature. It may 
 be a moral obligation, or a legal obligation, or both. But 
 when we speak of an obligation generally, we mean a legal 
 obligation ; that is, the right to performance, which the law 
 confers on one party, and the corresponding duty of perform- 
 ance, to which it binds the other.^ This is what the French 
 jurists call, Le lien du contrat (the legal tie of the contract), 
 Onus conventionis, and what the civilians generally call Vin- 
 culum juris, or Vinculum obligationis? The Institutes of 
 Justinian have thus defined it : " Obligatio est juris vincu- 
 lum, quo necessitate adstringimur alicujus rei solvendae,, 
 secundum nostrse civitatis jura." * A contract may, in its 
 nature, be purely voluntary, and possess no legal obligation. 
 It may be a mere naked pact (nudum pactuni) . It may pos- 
 sess a legal obligatibn ; but the laws may limit the extent 
 and force of that obligation in personam, or in rem. It may 
 bind the party petsonally, but not bind his estate ; or it may 
 bind his estate, and not bind his person. The obligation may 
 be limited in its operation or duration ; or it may be revoca- 
 ble or dissoluble in certain future events, or under peculiar 
 circumstances.* 
 
 § 161. In the next place, the interpretation of contracts.^ 
 Upon this subject there would scarcely seem to be any room 
 for doubt or disputation. There are certain general rules of 
 interpretation, recognized by all nations, which form the basis 
 of all reasoning on the subject of contracts. The object is to 
 
 ' Story on Conflict of Laws, § 266 ; Pardessus, Droit Comm. Tom. 5, art. 
 1495, pp. 269-271. See 2 Boullenois, Observ. 46, pp. 454, 460, 462-494; 
 3 Burge, Comm. on Col. and For. Law, Pt. 2, ch. 20, pp. 764, 765. 
 
 ^ See 3 Story, Comm. on Constitution, §§ 1372-1379; Ogden v. Saun- 
 ders, 12 Wheaton, 213; Pothier on Oblig. art. 1, n. 1, pp. 163-175. 
 
 ' 2 Boullenois, Observ. 46, pp. 458 - 460. 
 
 * Inst. Lib. 3, tit. 14 ; Pothier, Pandect. Lib. 44, tit. 7, P. 1, art. 1, § 1 ; 
 Pothier on Oblig. n. 173, 174. 
 
 * See 2 Boullenois, Observ. 46, pp. 452, 454 ; Code Civil of France, art. 
 1168-1196; Story on Bills, § 141. 
 
 " Story on Conflict of Laws, § 270. 
 
CHAP. IV.] EIGHTS OF PAETIES ON TRANSFERS. 185 
 
 ascertain the real intention of the parties in their stipula- 
 tions ; and when the latter are silent, or ambiguous, to ascer- 
 tain what is the true sense of the words used, and what ought 
 to be implied, in order to give them their true and full effect.^ 
 The primary rule, in all expositions of this sort, is that of 
 common sense, so well expressed in the Digest. " In con- 
 ventionibus contrahentium voluntas, potius quam verba, 
 spectari placuit." ^ But, in many cases, the words used in 
 contracts have different meanings attached to them in differ- 
 ent places, by law, or by custom. And, where the words are 
 in themselves obscure or ambiguous, custom and usage in a 
 
 * See Lord Brougham's striking remarlcs on this subject, cited in Story 
 on Conflict of Laws, § 226 c. In Prentiss v. Savage, 13 Mass. 23, Mr. 
 Chief Justice Parlier said : " It seems to be an undisputed doctrine, with 
 respect to personal contracts, that the law of the place where they are 
 made shall govern in their construction ; except when made with a 
 view to performance in some other country, and then' the law of such 
 country is to prevail. This is nothing more than common sense and sound 
 justice, adopting the probable intent of the parties as to the rule of con- 
 struction. For when a citizen of this country enters into a contract in 
 another, with a citizen or subject thereof, and the contract is intended to 
 be there performed, it is reasonable to presume that both parties had 
 regard to the law of the place where they were, and that the contract was 
 shaped accordingly. And it is also to be presumed, when the contract is 
 to be executed in any other country than that in which it is made, that the 
 parties take into their consideration the law of such foreign country. This 
 latter branch of the rule, if not so obviously founded upon the intention of 
 the parties as the former, is equally well settled as a. principle in the law 
 of contracts." Mr. Chancellor Walworth, in Chapman v. Robertson, 6 
 Paige, R. 627, 630, used equally strong language. "It is an established 
 principle," said he, " that the construction and validity of personal contracts, 
 which are purely personal, depend upon the laws of the place where the 
 contract is made, unless it was made with reference to the laws of some 
 other place or country, where such contract, in the contemplation of the 
 parties thereto, was to be carried into effect and performed." 2 Kent, 
 Leot. 39, pp. 457, 458 (3d edit.) ; 3 Burge, Comm. on Col. and For. Law, 
 Pt. 2, ch. 20, pp. 752 - 764. 
 
 ' Dig. Lib. 50, tit. 16, 1. 219. Many rules of interpretation are found in 
 Pothier on Obligations, n. 91 -102 ; in Fonblanque on Equity, B. 1, ch. 6, 
 §§ 11-20, and notes; 1 Domat, Civil Law, B. 1, tit. 1, § 2; 1 Powell on 
 Contracts, 370, et seq. ; Merlin, Repertoire, Convention, § 7, p. 366. 
 
186 ' PEOMISSORY NOTES. [CHAP. IV. 
 
 particular place may give them an" exact and appropriate 
 meaning. Hence, the rule has found admission into almost 
 all, if not into all, systems of jurisprudence, that, if the full and 
 entire intention of the parties does not appear from the words 
 of the contract, and if it can be interpreted by any custom or 
 usage of the place where it is made, that course is to be 
 adopted. Such is the rule of the Digest. " Semper in stipu- 
 lationibus et in cseteris contractibus id sequimur, quod actum 
 est. Aut si non appareat, quod actum est, erit consequens, 
 ut id sequamur, quod in regione, in qua actum est, frequenta- 
 tur.i Conservanda est consuetude regionis et civitatis " (says 
 J. Sandd), " ubi contractum est. Omnes enim actiones nos- 
 tras (si non aliter fuerit provisum inter contrahentes) inter- 
 pretationem recipiunt a consuetudine loci, in quo contrahi- 
 tur."2 Usage, is, indeed, of so much authority, in the 
 interpretation of contracts, that a contract is understood to 
 contain the customary clauses, although they are not ex- 
 pressed, according to the known rule, " In contractibus tacite 
 veniunt ea, quae sunt moris et consuetudinis." ^ Thus, if a 
 tenant is, by custom, to have' the outgoing crop, he will be 
 entitled to it, although not expressed in the lease.* And, if 
 a lease is entirely silent as to the time of the tenant's quit- 
 ting, the custom of the country will fix it.® By the law of 
 England, a month means, ordinarily, in common contracts, 
 as in leases, a lunar month ; but in mercantile contracts it 
 means a calendar month.® A contract, therefore, made in 
 England, for a lease of land for twelve months, would mean 
 
 > Dig. Lib. 50, tit. 17, 1. 34 ; 1 Domat, Civil Law, B. 1, tit. 1, § 2, n. 9 ; 
 2 BouUenois, Observ. 46, p. 490; 3 Burge, Comm. on Col. and For. Law, 
 Pt. 2, ch. 20, pp. 775, 776. 
 
 ' J. Sand. Op. Comm. de Keg. Jur. 1. 9, p. 17 ; Story on Bills, § 143. 
 
 " Pothier on Oblig. n. 95 ; Merlin, Repertoire, Convention, § 7 ; 2 Kent, 
 Lect. 39, p. 555 (3d edit.). 
 
 ' Wigglesworth v. Dallison, Doug. 201, 207. 
 
 " Webb V. Plummer, 2 B. & Aid. 746. 
 
 ' 2 Blacli. Comm. 141 ; Catesby's case, 6 Coke, 62 ; Laoon v. Hooper, 6 
 T. R. 224; 3 Berge, Comm. on Col. and For. Law, Pt. 2, ch. 20, pp. 776, 
 777. 
 
CHAP. IV.] EIGHTS OF PARTIES ON TRANSFERS. 187 
 
 a lease for forty-eight weeks only.^ A Promissory Note, to 
 pay money in twelve months, would mean in one year, or in 
 twelve calendar months.^ If a contract of either sort were 
 required to be enforced in a foreign country, its true inter- 
 pretation must be everywhere the same, that it is according 
 to the usage in the country where the contract was made. 
 
 § 162. The same word, too, often has different significa- 
 tions in different countries.^ Thus, the term usance, which 
 is common enough in negotiable instruments, means', in 
 some countries, a month, in others, two or more months, 
 and in others, half a month. A Note, payable at one usance, 
 must be construed, everywhere, according to the meaning of 
 the word in the country where the contract is made.^ There 
 are many other cases illustrative of the same principle. A 
 Note, made in England, for one hundred pounds, would 
 mean one hundred pounds sterling. A like Note, made in 
 America, would mean one hundred pounds in American cur- 
 rency, which is one fourth less in value. It would be mon- 
 strous to contend, that, on the English Note, sued in America, 
 the less sum only ought to be recovered ; and on the other 
 hand, on the American Note, sued in England, that one 
 third more ought to be recovered.^ 
 
 § 163. The like interpretation would be applied to the 
 case of a Promissory Note, drawn in one country, and paya- 
 ble in another country, where the same denomination or 
 currency existed in both countries, but represented differ- 
 ent values. Thus, for example, a Note drawn in Boston for 
 
 ' Ibid. 
 
 2 Chitty on Bills, p. 406 (8tli edit. 1833) ; Lang v. Gale, 1 M. &.S. 111 ; 
 Cockell V. Gray, 3 Brod. & Bing. 187 ; Leffingwell v. White, 1 John. Gas. 
 99. 
 
 " Story on Conflict of Laws, § 271. 
 
 * Chitty on Bills, pp. 40-1, 405 (8th edit. 1833). See also 2 BouUenois, 
 Observ. 46, p. 447. 
 
 * See also Powell on Contracts, 376 ; 2 BouUenois, Observ. 46, pp. 498, 
 503 ; Henry on Foreign Law, Appendix, 233 ; Pardessus, Droit Comm. 
 art. 1492; 3 Purge, Comm. on Col. and For. Law,Pt. 2, ch. 20, pp. 772, 
 773 ; Story on Conflict of Laws, §§ 272 a, 307, 308. 
 
188 , PEOMISSOEY NOTES. [OHAP. IV. 
 
 one hundred pounds, payable in London, would be construed 
 to be for one hundred pounds sterling ; whereas, if a Note 
 were drawia for the same sum in London, and payable in 
 Boston, it would be construed to be for one hundred pounds 
 of the lawful currency of Massachusetts, which, as we have 
 just seen, is one quarter less in value. In each case, the 
 ground of interpretation is the presumed intention of the par- 
 ties, derived from the nature and objects of the instrument. 
 
 §. 164. Hence, it is adopted by the Common Law as a gen- 
 eral rule in the interpretation of contracts, that they are to 
 be deemed contracts of the place where they are made, un- 
 less they are positively to be performed or paid elsewhere. 
 Therefore, a Bill or Note made in France, and payable gen- 
 erally, will be treated as a French Note, and governed 
 accordingly by the laws of France, as to its obligation and 
 construction. So, a policy of-insurance, executed in Eng- 
 land, on a French ship, for the French owner, on a voyage 
 from one French port to another, would be treated as an 
 English contract, and, in case of loss, the debt would be 
 treated as an English debt. Indeed, all the rights, and 
 duties, and obligations, growing out of such a policy, would 
 be governed by the law of England, and not by the law of 
 France, if the laws respecting insurance were different in the 
 two countries.^ 
 
 § 165. But, where the contract is, either expressly or 
 tacitly, to be performed in any other place, there the general 
 rule is, in conformity to the presumed intention of the par- 
 ties, that the contract, as to its validity, nature, obligation, 
 and interpretation, is to be governed by the law of the place 
 of performance.^ This would seem to be a result of natural 
 justice ; and the Roman Law has adopted it as a maxim : 
 
 ' Don V. Lippman, 5 Clark & Fin. 1, 18 - 20 ; Story on Conflict of Laws, 
 §317. 
 
 ' Story on Conflict of Laws, § 280; 2 Kent, Lect. 37, pp. 393, 394, and 
 Lect. 39, p. 459 (4th -edit.) ; Cassaregis, Disc. 179; 1 Emerigon, ch. 4, § 
 8; Voet, De Stat. § 9, ch. 2, n. 15, p. 271 (edit. 1715) ; Id. p. 328 (edit. 
 1661) ; BouUenois, Quest. Contr. des Lois, p. 330, &c.; 3 Burge, Comm. 
 
CHAP. IV.], EIGHTS OF PARTIES ON TRANSFERS. 189 
 
 " Contraxisse unusquisque in eo loco intelligitur in quo ut 
 solveret, se obligavit";i and again, in the law: "Aut ubi 
 quisque contraxerit. Contractum autem non utique eo loc'o 
 intelligitur, quo negotium gestum sit ; sed quo solvenda est 
 pecunia.^ The rule was fully recognized, and acted on, in a 
 recent case, by the Supreme Court of the United States, 
 where the Court said, that the general principle, in relation 
 to contracts made in one place, to be executed in another, 
 was well settled ; that they are to be governed by the laws of 
 the place of performaiice.^ 
 
 § 166. The like question, also, often arises in cases re- 
 specting the payment of interest.* The general rule is, that 
 the interest is to be paid on contracts according to the law of 
 the place where they are to be performed, in all cases, where 
 interest is expressly or impliedly to be paid.^ " Usurarum 
 modus ex more regionis, ubi contractum est, constituitur," 
 
 on Col. and For. Law, Pt. 2, ch. 20, pp. 771, 772; Don v. Lippmann, 5 
 Clark & Finn. 1, 13, 19. 
 
 'Dig. Lib. 44, tit. 7, 1. 21 ; Story on Conflict of Laws, § 296. 
 
 ' Dig. Lib. 42, tit. 5, 1. 3 ; Story on Bills, § 147. 
 
 ' Andrews v. Pond, 13 Peters, 65 ; Goddin v. Shipley, 7 B. Mon. 578. 
 
 * Story on Conflict of Laws, § 296. 
 
 * Story on Conflict of Laws, §§ 292-293 e, 304 ; Conner v. Bellamont, 2 
 Vern. 395 ; Von Hemert v. Porter, 11 Met. 210; Cash v. Kennion, 11 Ves. 
 314 ; Kobinson v. Bland, 2 Burr. 1077 ; Ekins v. East India Company, 1 P. 
 Wm. 395 ; K^nelaugh v. Champante, 2 Vern. 395, and note : Ibid, by 
 Kaithby; 1 Chitty on Comm. and Manuf. ch. 12, pp. 650, 651 ; 3 Chitty, 
 Id. ch. 1, p. 109; Eq. Abridg. . /nieresi, E. ; Henry on Foreign Law, 43, 
 note ; Id. 53 ; 2 Kames, Equity, B. 3, ch. 8, § 1 ; 2 Fonbl. Eq. B. 5, ch. 1, 
 § 6, and note; Bridgman, Equity Digest, Interest, vii. ; Fanning v. Conse- 
 qua, 17 John. 511; S. C. 3 John. Ch. 610; Hosford u. Nichols, 1 Paige, 
 220; Houghton v. Paige, 2 2Sf. H. 42; Peacock v. Banks, Minor, 387; 
 Lapice u. Smith, 13 Louis. 91,92; Thompson v. Ketcham, 4 John. 285 ; 
 Healy v. Gorman, 3 Green, N. J. 328 ; 2 Kent, Lect. 39, pp. 460, 461 (3d 
 edit.). A case illustrative of this principle recently occurred before the 
 House of Lords. A widow, in Scotland, entered into an obligation to pay 
 the whole of her deceased husband's debts. It was held, by the Court of 
 Session in Scotland, that the English creditors, on contracts made in Eng- 
 land, were entitled to recover interest in all cases where the law of 
 England gave interest, and not, where it did not. Therefore on Bonds, 
 and Bills of Exchange, interest was allowed, and on simple contracts, not. 
 
190 PEOMISSOEY NOTES. [CHAP. IV. 
 
 says the Digest.^ Thus, a Note made in Canada, where in- 
 terest is six per cent, payable with interest in England, 
 where it was five per cent, bears English interest only.^ 
 [But where a Bill is drawn in one country for a debt payable 
 there, upon a person in another country, and is there dis- 
 honored for non-acceptance, interest is to be computed, in an 
 action a:gainst the drawer, according to the law of the place 
 where the Bill is drawn, and not according to that of the place 
 of the drawee.^] Loans, made in a place, bear the interest 
 
 And this decision was affirmed by the House of Lords. Montgomery v. 
 Bridge, 2 Dow & Clarke, 297. The case of Arnott v. Kedfern, 2 C. & P. 
 88, may, at first view, seem inconsistent with the general doctrine. There, 
 the original contract was made in London between an Englishman and a 
 Scotchman. The latter agreed to go to Scotland, as agent, four times a 
 year, to sell goods and collect debts for the other party, to remit the money, 
 and to guarantee one fourth part of the sales ; and he was to receive one 
 per cent upon the amount of sales, &c. The agent sued, for a balance of 
 his account, in Scotland, and the Scotch court allowed him interest on it. 
 The judgment was afterwards sued in England ; and the question was, 
 whether interest ought to be allowed. Lord Chief Justice Best said : " Is 
 this an English transaction ? For, if it is, it will be regulated by the rules 
 of English law. But, if it is a Scotch transaction, then the case will be dif- 
 ferent." He afterwards added : " This is the case of a Scotchman, who 
 comes into JEngland, and makes a contract. As the contract was made in 
 England, although it was to be executed in Scotland, I think it ought to be 
 regulated according to the rules of the English law. This is my present 
 opinion. These questions of international law do not often occur." And 
 he refused interest, because it was not allowed by the law of England. The 
 Court afterwards ordered interest to be given, upon the ground that the 
 balance of such an account would carry interest in England. But Lord 
 Chief Justice Best rightly expounded the contract, as an English contract, 
 though there is a slight inaccuracy in his language. So far as the principal 
 was concerned, the contract to pay the commission was to be paid in Eng- 
 land. The services of the agent were to be performed in Scotland. But 
 the whole contract was not to be executed exclusively there by both par- 
 ties. A contract, made to pay money in England, for services performed 
 abroad, is an English contract, and will carry English interest. 
 
 ' Dig. Lib. 22, tit. 1, 1. 1 ; 2 Burge, Comm. on Col. and For. Law, Ft. 2, 
 ch. 9, pp. 860-862. 
 
 ' Scholfield V. Day, 20 John. 102. And see Cooper v. Waldegrave, 2 
 Beavan, 282. 
 
 ' [Gibbs V. Fremont, 20 Eng. Law and Eq. 555. Alderson, B. said : 
 
CHAP. IV.j EIGHTS OF PARTIES ON TRANSFERS. 191 
 
 of that place, unless they are payable elsewhere.-^ And if 
 payable in a foreign country, they may bear any rate of in- 
 
 " The general rule in all cases like the present is, that the lex loci contractus 
 is to govern in the construction of the instrument, but that applies only 
 when the contract is not express ; if it is special it must be construed ac- 
 cording to the express terms in which it is framed. Now, a Bill drawn on 
 a third person in discharge of a present debt is, in truth, an offer by the 
 drawer that if the payee will give time for payment, he will give an order 
 on his debtor to pay a given sum at a given time and place. The payee 
 agrees to accept this order, and to give the time, with a proviso that if the 
 acceptor does not pay, and he, the payee, or the holder of the Bill gives 
 notice to the drawer of that default, the drawer shall pay him the amount 
 specified in the Bill, and lawful interest. This is, then, the contract be- 
 tween the parties. If the interest be expressly or by necessary implication 
 specified on the face.of the Bill, then the interest is governed by the terms 
 of the contract itself; but if not, it seems to follow the rate of interest of 
 the place where the contract is made ; so, if the mode of performing it be 
 expressly or impliedly specified, as was the case of Rothschild v. Currie, 1 
 Q. B. Kep. 43. In the case of a Bill drawn at A, it prima facie bears inter- 
 est as a debt at A would, if nothing else appeared ; but if that Bill be in- 
 dorsed at B, the indorser is a new drawer, and it may be a question wheth- 
 er this indorsement is a new drawing of a Bill at B, or only a new drawing 
 of the same Bill, that is, a Bill expressly made at A. In the former case it 
 would carry interest at the rate at B, in the latter at the rate at A; and 
 on this subject we find a difference of opinion in the books, — Mr. Justice 
 Story, in his Conflict of Laws, § 314, maintaining the former, and Pardesiius, 
 Droit du Commerce, art. 1500, maintaining the latter opinion. But this 
 case is a contract at San Francisco, by which the defendant there offers to 
 pay to the payee, in discharge of a debt due there, the payment at Wash- 
 ington, by the acceptor thereof, of a given sum. That sum is not paid ; the 
 defendant's original liability then revives on notice of dishonor duly given 
 to him, and the defendant has become liable to pay as he was liable at the 
 first. At first he was clearly to have paid the money at San Francisco, and 
 if he did not, he would have been liable to pay interest at the usual rate in 
 California, for a period as long as the debt remained unpaid ; and that is 
 the amount which he ought to pay now. This point was expressly ruled in 
 Allen V. Kemble, 6 Moore, P. C. R. 314. It was also so ruled in Congan 
 V. Bankes, Chitty on Bills (9th edit), p. 683 ; and this is not to be left to 
 the jury, for it depends on the rule of law. The amount of interest at each 
 place is to be so left ; so is the question whether any damage has been sus- 
 
 ' DeWolf V. Johnson, 10 Wheat. 367, 383; Consequa v. Willings, 1 
 Pet. C. C. 225 ; 2 Boullenois, Observ. 46, pp. 477, 478; Andrews v. Pond, 
 13 Peters, 65, 78. 
 
192 PBOMISSOEY NOTES. [CHAP. IV. 
 
 terest, not exceeding that which is lawful hy the laws of that 
 country.^ And on this account, a contract for a loan made 
 and payable in a foreign country, may stipulate for interest 
 higher than that allowed at home.^ If the contract for in- 
 terest be illegal there, it will be illegal everywhere.^ But, if 
 it be legal where it is made, it will be of iiniversal obliga- 
 tion, even in places where a lower interest is prescribed by 
 law.* 
 
 tained by non-payment of interest at all, — for these are questions of fact. 
 Here the jury have found interest was due, and that there was damage 
 which ought to be recovered in the shape of interest. ' They also have 
 found what the usual rate of such interest is at Washington, and what the 
 usual rate of such interest is in California; but which rate is to be 
 adopted by them is, so we think, a question purely of law for the 
 direction of the judge to the jury. We think the direction in this case 
 should have been that the California rate of interest should be adopted, 
 by them, inasmuch as the contract was made in California ; and therefore, 
 this rule must be absolute, to enter the verdict for the plaintiffs, with 19 
 per cent additional interest to the 6 per cent already allowed."] 
 
 ' Ibid. ; 2 Kent, Lect. 39, pp. 460, 461 (3d edit.) ; Thompson v. Ketch- 
 am, 4 John. 285 ; Healy v. Gorman, 3 Green, N. J. 328. 
 
 ' Kent, Lect. 39, pp. 460, 461 (3d edit.) ; Hosford v. Nichols, 1 Paige, 
 220; Houghton v. Paige, 2 N. H. 42; Thompson v. Powles, 2 Sim. 194. 
 In this last case the Vice-Chancellor said : " With respect to the question 
 of usury, in order to hold the contract to be usurious, it must appear that 
 the contract was made here, and that the consideration for it was to be paid 
 here. It should appear, at least, that the payment was not to be made 
 abroad ; for if it was to be made abroad it would not be usurious." See 
 also Andrews v. Pond, 13 Peters, 65, 78 ; De Wolf u. Johnson, 10 Wheat. 383. 
 
 ' 2 Kames, Equity, B. 3, ch. 8, § 1 ; Hosford v. Nichols, 1 Paige, 220 ; 
 2 BouUenois, Observ. 46, p. 477. In the case of Thompson v. Powles, 2 
 Sim. 194, the Vice-Chancellor said: " In order to have the contract (for 
 stock) usurious, it must appear that the contract was made here, and that 
 the consideration for it was to be paid here." See also Yrisarri v. Clement, 
 2 C. & P. 223. In Hosford v. Nichols, 1 Paige, 220, where a contract was 
 made for the sale of lands in New York, by citizens then resident there, 
 and the vendor afterwards removed to Pennsylvania, where the contract 
 was consummated, and a mortgage given to secure the unpaid purchase- 
 money, with New York interest (which was higher than that of Pennsyl- 
 vania), the Court thought the mortgage not usurious, it being only a con- 
 summation of the original bargain made in New York. 
 
 • Ibid. 
 
CHAP. IV.] EIGHTS OF PARTIES ON TEANSFEES. 193 
 
 §167. The question, therefore, whether a contract is 
 usurious or not, depends, not upon the rate of the interest 
 allowed, but upon the validity of that interest in the country 
 where the contract is made, and is to be executed.^ A con- 
 tract made in England, for advances to be made at Gibraltar, 
 at a rate of interest beyond that of England, would neverthe- 
 less be valid in England-; and so a contract to allow interest 
 upon credits given in Gibraltar, at such higher rate, would 
 be valid of the English creditor.^ 
 
 § 168. In the next place, as to the effect. In the effect of 
 the Lex loci contractCis are included those consequences and 
 incidents, which, by law, are attached to or operate upon 
 contracts. Some of these have been already enumerated in 
 considering the obligation of contracts. There are others, 
 again, that deserve to be here enumerated. And here it is 
 important to suggest, that, although the law acts upon con- 
 tracts, it does not enter into them, or form a part of the 
 agreement itself.^ It simply regulates the rights which are 
 acquired under the contract, the obligations which may be 
 conferred, and the circumstances which will dissolve, qualify, 
 or annul those obligations ; or, in other words, what shall be 
 a valid defence upon the merits to them, and what a good 
 discharge of them. And here the general rule is, that a de- 
 fence or discharge, good by the law of the place or country 
 where the contract is made, or is to be performed, is to be 
 held of equal validity and force in every other place or coun- 
 try where the question may arise, or be litigated.* Hence, 
 infancy, if a valid defence by the Lex loci contracts, will be 
 a valid defence everywhere.^ So, a tender and refusal, good 
 
 ' Story on Conflict of Laws, § 292; Harvey v. Archbald, 1 Ryan & 
 Mood. 184; Andrews v. Pond, 13 Peters, 65, 78; Story on Conflict of 
 Laws, § 243. 
 
 ' Ibid. ; Story on Bills, §§ 143 - 149. 
 
 « Ogden V. Sanders, 12 Wheat. 213, 324, 338-344. 
 
 * Story on Conflict of Laws, §§ 331, 335, 336, 339, 351, 351 a-d; Story 
 on Bills, §§ 161-163 ; Powers v. Lynch, 3 Mass. 77. 
 
 ' Story on Conflict of Laws, § 332. 
 13 
 
194 PKOMISSORY NOTES. [CHAP. IV. 
 
 by the same law, either as a full discharge, or as a present 
 fulfilment of the contract, is of equal validity, and will be 
 equally respected everywhere else.^ Payment in paper-money 
 bills, or in other things, if good by the same law, will be 
 deemed a sufficient payment everywhere.'* And, on the 
 other hand, where a payment by negotiable Bills or Notes is, 
 by the Lex loci, held to be conditional payment only, it will 
 be so held, even in States where such payment, under the 
 domestic law, would be held absolute.^ So, if by the law of 
 the place of a contract (even although negotiable), equi- 
 table defences are allowed in favor of the tnaker, any subse- 
 quent indorsement will not change his rights in regard to the 
 holder.* The latter must take it cum onere.^ The same rule 
 applies to the acceptance of a Bill of Exchange ; although it 
 is absolute by our law, yet, if it be qualified by the law of 
 the country where the acceptance is made, the qualification 
 thus acting upon it accompanies it everywhere.^ Hence it 
 is, also, that a discharge under the bankrupt or insolvent law 
 of the country where the contract is made, or to be performed, 
 is a valid discharge thereof everywhere.^ 
 
 § 169. The converse doctrine is equally well established, 
 and turns upon the like considerations, namely, that a dis- 
 charge of a contract by the law of a country where it is not 
 madCj or to be performed, will not be a discharge of it in 
 any other country .^ Therefore, a discharge of the debtor 
 
 ^ Story on Conflict of Laws, § 332 ; Thompson v. Ketcham, 8 John. 190. 
 
 ^ Warder v. Arell, 2 Wash. Va. 359; 1 Brown, Ch. 376; Searight u. 
 Calbraith, 4 Dall. 325 ; Bartsch v. Atwater, 1 Conn. 409. 
 
 " Bartsch v. Atwater, 1 Conn. 409. See other cases cited, 3 Burge, 
 Comm. on Col. and For. Law, Pt. 2, ch. 21, § 7, pp. 876-878. x 
 
 * Story on Conflict of Laws, § 317. 
 
 * Ory V. Winter, 16 Martin, 277. See also Evans w. Gray, 12 Martin, 
 475 ; Chartres v. Cairnes, 16 Martin, 1 ; Story on Conflict of Laws, § 332. 
 
 ' Story on Conflict of Laws, § 333; Burrows v. Jemino, 2 Str. 733; 
 Story on Bills, § 165. 
 
 ' Story on Conflict of Laws, §§ 335, 336, 340, 341 ; Baker v. Wheaton, 
 5 Mass. 509 ; Hicks v. Brown, 12 John. 142 ; Powers v. Lynch, 3 Mass. 77 ; 
 Hull V. Blake, 13 Mass. 153. 
 
 ' Story on Conflict of Laws, § 342 ; Storyon Bills, § 165. 
 
CHAP. IV.] EIGHTS OF PARTIES ON TBAKSFEES. ;195 
 
 under the insolvent laws of a country where it was not made, 
 or to be performed, will not be a discharge of the contract 
 in any other country.^ And this doctrine applies as well to 
 negotiable instruments as to other contracts.^ 
 
 § 170. A few illustrations of these rules, as applicable to 
 ■Promissory Notes, and not already suggested, may be useful 
 in this place. Thus, for example, if a Promissory Note is 
 made in one country, but is payable in another country, the 
 days of grace allowable thereon will be governed by the law 
 and custom of the place where the Note is payable.^ Another 
 illustration is to be found in the different effects of an in- 
 dorsement in different countries. In France (as we have 
 seen*), a blank indorsement of a Promissory Note conveys no 
 title or property in the Note to the holder, but only a simple 
 authority to receive the money due thereon ; and this law 
 will regulate the rights of the holder, as well against the 
 maker, as against the indorser, in a suit brought in any 
 other country, where a different rule prevails.^ 
 
 § 171. Another illustration may be derived from the dif- 
 ferent obligations which an indoi-sement creates in different 
 States. By the general Commercial Law, in order to entitle 
 the indorsee to recover against any antecedent indorser upon 
 a negotiable Note, it is only necessary that due demand 
 should be made upon the maker of the Note a.t its maturity, 
 
 ' Story on Conflict of Laws, § 342; Smith v. Buchanan, 1- East, 6, 11 ; 
 Lewis V. Owen, 4 B. & Al. 654 ; Van Raugh v. Van Arsdaln, 3 Caines, 
 154; Le Roy v. Crowninshield, 2 Mason, 151; Smith u. Smith, 2 John. 
 235; Bradford v. Farrand, 13 Mass. 18; 2 Kent, Leet. 87, pp. 392, 393 
 (5th edit.) ; Id. Leot. 39, pp. 458, 459 (5th edit.). 
 
 ' Story on Conflict of Laws, §§'343-346 ; Story on Bills, §§ 1.66 - 171. 
 
 ' Story on Bills, §§ 156, 170, 177, a34 ; Story on Conflict of Laws, 
 §§ 316, 347, 361; 2 Kent, Lect. 39, pp. 459, 460 (5th edit.) ; Cbitty on 
 Bills, ch. 5, pp. 191, 193 (8th edit.); Id. ch. 9, p. 409 ; Bank of Washing- 
 ton V. Triplett, 1 Peters, 30, 34 ; Pothier, De Change, n. 15, 155 ; Pardes- 
 sus, Droit Comm. Tom. 5, § 1495; 2 BouUenois, Gbserv. 2»,.pp. 531, 532; 
 Mascard. Conclus. 7, note 72. 
 
 * Ante, § 140. 
 
 ' Story on Conflict of Laws, § 272; Story on Bills, § 156-, Trimbey v. 
 Vignier, 1 Bing. N. C. 151, 158, 160. 
 
196 PKOMISSORY NOTES. [CHAP. IV. 
 
 and dne notice of the dishonor given to the indorser. But, 
 by the laws of some of the American States, it is required, 
 in order to charge an antecedent indorser, not only that due 
 demand should be made, and due notice given, but that a 
 suit shall be previously commenced against the maker, and 
 prosecuted with effect in the country where he resides ; and 
 then, if payment cannot be obtained from him under the 
 judgment, the indorsee may have recourse to the indorser. 
 In such a case, it is clear, upon principle, that the indorse- 
 ment, as to its legal effect and obligation, and the duties of 
 the holder, must be governed by the law of the place where 
 the indorsement is made.^ 
 
 § 172. Another illustration of the doctrine may arise in 
 the case of a Note made in one country, and indorsed by the 
 payee to the holder, in another country. What law is to 
 govern in respect to the rights of the holder against the 
 maker ? This depends upon the place where the maker un- 
 dertakes to pay the Note ; for the law of that place is to gov- 
 ern as to his rights and obligations. Now, a negotiable Note 
 made in a particular country is to be deemed a Note gov- 
 erned by the law of that country, whether it is expressly 
 made payable there, or is payable generally, without naming 
 any particular place ; since, at most, under the latter circum- 
 stances, it is as much payable in that country as elsewhere.^ 
 Hence, such a Note makes the maker liable only according 
 to the law of the country where the Note is executed, although 
 
 ' Story on Conflict of Laws, § 316 ; Story on Bills, § 157 ; Williams v. 
 Wade, 1 Met. 82, 83 ; Worcester Bank v. Wells, 8 Met. 107; Bernard v. 
 Barry, 1 Greene (lo.), 388 ; Carroll v. Upton, 2 Sandford, 171. A made his 
 Note in Indiana payable to B, in New York. B & C indorsed the Note in 
 New York, and D indorsed it in Indiana, and it was held that the laws of 
 New York governed the Note as to B & C, and of Indiana as to A & D, 
 and that an action would not lie against C & D, until the remedies against 
 A & B had been first exhausted, such being the law of Indiana. Rose v. 
 Park, 20 Ind. 94; Brown v. Bunn, 16 Ind. 406. 
 
 ' Story on Conflict of Laws, §§ 317, 332, 340, 343, 344 ; Story on Bills, 
 §§ 158, 164, 166-169; Wilson v. Lazier, 11 Grattan, 482; Peck v. Hib- 
 bard, 26 Verm. 698; Ory v. Winter, 16 Martin (Louis.), 277. 
 
CHAP. IV.] RIGHTS OF PARTIES ON TRANSFERS. 197 
 
 indorsed in another country ; and his liabilities, and so also 
 his rights, as, for example, the right to set up equitable de- 
 fences against the Note, if allowed by the country where the 
 Note is executed, are regulated by the law of the same coun- 
 try.i 
 
 § 173. Questions have also arisen, whethei; negotiable 
 Notes and Bills, made in one country, are transferable in 
 other countries, so as to found a right of action in the holder 
 against the other parties. Thus, a question occurred in 
 England, in a case where a negotiable Note, made in Scot- 
 land, and there negotiable, was indorsed, and a suit brought 
 in England by the indorsee against the maker, whether the 
 action was maintainable. It was contended, that the Note, 
 being a foreign Note, was not within the statute of Anne (3 
 and 4 Anne, ch. 9), which made Promissory Notes payable 
 to order, assignable and negotiable ; for that statute applied 
 only to inland Promissory Ndtes. But the Court overruled 
 the objection, and held the Note suable in England by the 
 indorsee, as the statute embraced foreign as well as domestic 
 Notes.^ In another case, a Promissory Note made in Eng- 
 land, and payable to the bearer, was transferred in Prance ; 
 and the question was made, whether the French holder 
 could maintain an action thereon in England ? such Notes 
 not being by the law of France negotiable ; and it was held 
 that he naight.^ But in each of these cases the decision was 
 expressly put upon the provisions of the statute of Anne 
 
 ^ Ibid.; Story on Conflict of Laws, § 346; Ory v. Winter, 16 Martin, 
 ^77; Slacum v. Pomeroy, 6 Cranch, 221; De la Chaumette «. Bank of 
 England, 9 B. & C. 208. Contra, Blanchard v. Kussell, 13 Mass. 1,11,12; 
 Story on Bills, §§ 163, 170. 
 
 ' Story on Conflict of Laws, § 353; Milne v. Graham, 1 B. & C. 192. 
 It does not distinctly appear upon the Report, whether the indorsement 
 was made in Scotland or in England. But it was probably in England. 
 But see Carr v. Shaw, Bayley on Bills, p. 22, note (5th edit. 1830) ; Id. p. 
 22 (American edit, by Phillips & Sewall, 1836). 
 
 = De la Chaumette v. The Bank of England, 2 B. & Ad. 385 ; S. C. 9 B. 
 & C. 208; and see Chitty on Bills, pp. 651, 552 (8th edit); Story on 
 Conflict of Laws, § 346. 
 
198 PROMISSORY NOTES. [CHAP. IV. 
 
 respecting Promissory Notes, leaving wholly untouched the 
 general doctrine of international law.^ 
 
 § 174. Several other cases may be put upon this subject. 
 In the first place, suppose a Note, negotiable by the law of 
 the place where it is made, is there transferred by indorse- 
 ment ; can the indorsee maintain an action in his own name 
 against the maker in a foreign country (where both are 
 found), in which there is no positive law on the subject of 
 negotiable Notes applicable to the case ? If he can, it must 
 be upon the ground that the foreign tribunal would recog- 
 nize the validity of the transfer by the indorsement, accord- 
 ing to the law of the place where it is made. According to 
 the doctrine maintained in England, as choses in action are 
 by the Common Law (independent of statute) incapable of 
 being transferred over, it might be argued that he could not 
 maintain an action, notwithstanding the instrument was well 
 negotiated, and transferred by the law of the place of the 
 contract.^ So far as this principle of the non-assignability 
 of choses in action would affect transfers in England, it 
 would seem reasonable to follow it. But the difiBculty is, in 
 applying it to transfers made in a foreign country, by whose 
 laws the instrument is negotiable, and capable of being trans- 
 ferred so as to vest the property and right in the assignee. 
 In such a case, it would seem, that the more correct rule 
 would be, that the Lex loci contracts ought to govern ; be- 
 cause the holder under the indorsement- has an immediate 
 and absolute right in the contract vested in him, as much as 
 he would have in goods transferred to him. Under such, 
 circumstances, to deny the legal effect of the indorsement, is 
 to construe the obligation, force, and effect of a contract, 
 made in one place, by the law of another place. The in- 
 dorsement, in the place where it is made, creates a direct 
 
 ' Story on Bills, §§ 57, 171 ; Story on Conflict of Laws, § 353 ; ante, § 38. 
 
 ' Story on Conflict of Laws, § 354. See 2 Black. Conlm. 442 ; Innes v. 
 Dunlop, 8 Term, 595 ; Jeflfery v. McTaggart, M. & S. 326 ; Story on Con- 
 flict of Laws, §§ 565, 566. 
 
CHAP. IV.] RIGHTS OP PASTIES ON TBANSFEES. 199 
 
 contract between the mater and the first indorsee ; and, if 
 so, that contract ought to be enforced between them every- 
 where. It is not a question, as to the form of the remedy, 
 but as to the right.^ 
 
 § 175. In the next place, let us suppose the case of a nego- 
 tiable Note, made in a country, by whose laws it is negotiable, 
 and actually indorsed in another, by whose laws a transfer of 
 Notes by indorsement is not allowed. Could an action be 
 maintained by the indorsee, against the maker, in the courts 
 of either country ? If it could be maintained in the country 
 whose laws do not allow such a transfer, it must be upon the 
 ground that the original negotiability, by the Lex loci con- 
 tracMs, is permitted to avail, in contradiction to the Lex 
 fori. On the other hand, if the suit should be brought in 
 the country where the Note was originally made, the same 
 objection might arise, that the transfer was not allowed by the 
 law of the place where the indorsement took place. But, at 
 the same time, it may be truly said that the transfer is en- 
 tirely in conformity to the intent of the parties, and to the 
 law of the original contract.^ 
 
 § 176. In the next place, let us suppose the case of a Note, 
 not negotiable by the law of the place where it is made, but 
 negotiable by the law of the place where it is indorsed. 
 Could an action be maintained in either country, by the in- 
 dorsee, against the maker ? It would seem that, in the 
 country where the Note was made, it could not ; because it 
 would be inconsistent with its own laws. But the same diffi- 
 
 ' See Trimbey v. Vignier, 1 Bing. (N. C.) 159 - 161 ; Story on Conflict 
 of Laws, § 353 a, where the same reasoning seems to have applied; Id. 
 §§ 565, 566. 
 
 * Story on Conflict of Laws, § 356. See Chitty on Bills, ch. 6, pp. 218, 
 219 (8th London edit.). See Kames on Equity, B. 3, ch. 8, § 3 ; Story on 
 Conflict of Laws, §§ 353, 354. In the cases of Milne v. Graham, 1 B. & C. 
 192, De la Chaume£te v. Bank of England, 2 B. & Ad. 385, and Trimby 
 u. Vignier, 1 Bing. (N. C.) 151, the Promissory Notes were negotiable in 
 both countries, as well where the Notes were made as where they were 
 transferred. 
 
200 PROMISSORY NOTES. [CHAP. IV. 
 
 culty would not arise in the country where the indorsement 
 was made ; and therefore, if the maker used terms of nego- 
 tiability in his contract, capable of binding him to the in- 
 dorsee, there would not seem to be any solid objection to 
 giving the contract its full effect there. And so it has been 
 accordingly adjudged, in the case of a Note made in Con- 
 necticut, payable to A, or order, but by the laws of that 
 State not negotiable there, and indorsed in New York, 
 where it was negotiable. In a suit in New York, by the 
 indorsee against the maker, the exception was taken and 
 overruled. The Court on that occasion said, that personal 
 contracts, just in themselves, and lawful in the place where 
 they are made, are to be fully enforced, according to the law 
 of the place, and the intent of the parties, and that this is 
 a principle which ought to be universally received and sup- 
 ported. But this admission of the Lex loci contractus can 
 have reference only to the nature and construction of the 
 contract and its legal effect, and not to the mode of enforcing 
 it. And the Court ultimately put the case expressly upon 
 the ground that the Note was payable to the payee, or order j 
 and therefore the remedy might well be pursued, accord- 
 ing to the law of New York, against a party who had con- 
 tracted to pay to the indorsee.^ But if the words " or 
 order " had been omitted in the Note, so that it had not 
 appeared that the contract between the parties originally 
 contemplated negotiability, as annexed to it, a different ques- 
 tion might have arisen, which would more properly come 
 under discussion in another place ; since it seems to concern 
 the interpretation and obligation of contracts, although it 
 has sometimes been treated as belonging to remedies.^ 
 
 § 177. In the next place, suppose a negotiable Note is 
 
 ^ Story on Conflict of Laws, § 357 ; Lodge v. Phelps, 1 John. Cas. 139 ; 
 S. C. 2 Caines, Cas. in Error, 321. See Kames on Equity, B. 3, ch. 8, § 4 ; 
 3 Kent, Lect. 44, p. 88 (5th edit.). 
 
 " See Chitty on Bills, ch. 6, pp. 218, 219 (8th London edit.) ; 3 Kent, Lect. 
 44, p. 77 (5th edit.); Story on Conflict of Laws, §§ 253 a, 257; Story on 
 Bills, §§ 173-175. 
 
CHAP. IV.] EIGHTS OF PARTIES ON TRANSFERS. 201 
 
 made in England, by a person domiciled there, but it is pay- 
 able in Paris, and is indorsed by the payee in England to a 
 holder domiciled there ; if, upon due presentment for pay- 
 ment in Paris, it should be dishonored, what notice is to be 
 given by the holder to the indorser (the payee) ? Is it to 
 be according to the law of Prance, or of England ? for, as to 
 the time of giving notice, the law of Prance differs from that 
 of England. It has been held, in the case of a Bill (and it 
 is not distinguishable from that of a Note), that the notice is 
 to be given according to the law of Prance, and not of Eng- 
 land.i But there is some reason to doubt the cori'ectness of 
 the decision, since the indorsement carries, as an incident, the 
 right to notice, and the contract, created by the indorsement, 
 when written out, would seem to import that the indorser 
 agrees to pay upon notice, according to the law of the place 
 where the contract is made.^ 
 
 § 178. There remain some few other considerations ap- 
 plicable to transfers by indorsement, which require notice in 
 this place. In the iirst place, then, as to the time of trans- 
 fer. In general, it may be stated, that a transfer may be 
 made at any time, while the Note remains a good subsisting 
 unpaid Note, whether it be before or after it has arrived at 
 maturity .3 But the rights of the holder against the antece- 
 
 ' Kothschild v. Currie, 1 A. & El. New R. 43. [But this case was 
 doubted in Gibbs «. Fremont, 20 Ehg. Law & Eq. 557.] 
 
 ^ Story on Bills, § 177, note; Id. §§ 285, 296, 366, 391. This subject 
 will be more fully considered under the chapter on Notices. ' 
 
 ' Chitty on Bills, ch. 6, p. 242 (8th edit. 1833) ; Mutford v. Walcot, 1 
 Ld. Kaym. 574; Boehm v. Stirling, 7 Term, 423 ; Bayley on Bills, ch. 5, 
 § 3, pp. 156 - 158 (6th edit. 1830) ; 1 Bell, Comm. B. 3, ch. 2, § 4, pp. 402, 
 403 (5th edit.) ; Havens v. Huntington, 1 Cowen, 387 ; Leavitt v. Putnam, 
 1 Sandford, 199 ; Story on Bills, §§ 220-223 ; Davis u. Miller, 14 Grattan, 
 1 ; Long V. Crawford, 18 Md. 220. Notes are now rarely drawn payable 
 on demand, and therefore the principles applicable to the point, when 
 they are to be deemed overdue, or not, will more naturally arise when we 
 come to the consideration of the cases of Notes and checks payable on de- 
 mand. In the cases of Notes made payable at sight, or at so many days 
 after sight, the time when they should be presented, and, of course, the 
 time when they shall be deemed overdue, will be discussed under the head 
 
202 PROMISSORY NOTES. [CHAP. IV. 
 
 dent parties may be most materially affected by the time of 
 the transfer. If the transfer is made before the maturity of 
 the Note to a bona fide holder, for a valuable consideration, 
 he will take it free of all equities between the antecedent 
 parties, of which he has no notice.^ [But if the indorsee 
 have notice when he takes the Note, even if it be before its 
 maturity, that the maker will resist payment on the ground 
 of fraud, he takes it subject to such a defence ; which may 
 be proved by the admissions of the payee made while he held 
 the Note.^] If the transfer is after the maturity of the Note, 
 
 of the time when Notes are to be presented. A Promissory Note is 
 not overdue and dishonored until the days of grace have expired; a trans- 
 fer on the second day of grace cuts off the equities. Goodpaster v. Voris, 
 8 Clark (lo.), 33*; A purchaser who takes a Note in good faith during 
 business hours, in the regular course of business, on the last day of grace, is 
 protected. Crosby v. Grant, 36 N. H. 273. Bat a Note payable by instal- 
 
 , ments is dishonored if one of the instalments is overdue, and it must then 
 be taken subject to the equities between the parties. Vinton v. King, 4 
 Allen, 562. In Massachusetts it was held that a note taken on the last day 
 of grace was overdue and dishonored. Pine v. Smith, 11 Gray, 38. 
 
 ' Story on Bills, §§ 14, 188 ; Chitty on Bills, ch. 6, pp. 220, 221, 240- 
 243 (8th edit. 1833); Boehm v. Sterling, 7 Term, 423; Bayley oh Bills, 
 ch. 5, § 3, pp. 157-163, 166(5th edit. 1830) ; Taylor v. Mather, 3 Term, 
 83, note ; Brown v. Davis, 3 Term, 80 ; Bosanquet v. Dudman, 1 Stark. 1 ; 
 Dunn V. O'Keefe, 5 M. & S. 282, 6 Taunt. 305 ; Thompson v. Gibson, 13 
 
 / Martin, 150; Marston w. Allen, 8 M. & W. 504; Savings Bank of New 
 Haven v. Bates, 8 Conn. 505 ; Swift v. Tyson, 16 Peters, 1. 
 
 * [Fisher v. Leland, 4 Cush. 456. Shaw, C. J. said : " The single ques- 
 tion is, whether, after the defendant had proved that the plaintiff took the 
 Note in question by indorsement before it was due, but with notice that the 
 promisors intended to defend on the ground that the Note was obtained 
 by the payee of the maker by fraud, they could give in evidence the fraudu- 
 lent acts of the payee ; and whether they could give in evidence the ad- 
 missions and confessions of the payee, whilst he was the holder of the Not.e, 
 and before the indorsement, to prove such fraud. The distinction appears 
 to be this : that when an indorsee takes a Bill or Note, by indorsement, be- 
 fore it is due, and without notice of fraud, or other matter of defence, he 
 takes it on an independent title by the indorsement, and will not be affected 
 by any payment, set-off, fraudulent consideration, or other matter of de- 
 fence, which the acceptor or promisor might have had against any previous 
 holder or prior party. He is not in privity with such prior party, does not 
 claim under him, and is not bound by the acts, frauds, or admissions of any 
 
CHAP. IV.] EIGHTS OF PARTIES ON TRANSFERS. 203 
 
 the holder takes it as a dishonored Note, and it is affected 
 by all the equities between the original parties, whether he 
 
 such prior party. And in order to give the highest credit and the freest 
 circulation to negotiable securities, transferred by indbrsement, in favor of 
 commerce, this principle is held with great firmness and strictness ; and by 
 a series of recent decisions, the rule upon the subject, instead of being re- 
 laxed, is held with greater strictness than formerly. O'Keefe v. Dunn, 6 
 Taunt. 305 ; Dunn v. O'Keefe, 5 M. & S. 282 ; Gill v.. Cubitt, 3 B. & C. 
 46fi ; Goodman v. Harvey, 4 A. & El. 870 ; Foster v. Pearson, 1 C, M. & 
 R. 849 ; Arbouin v. Anderson, 1 A. & El. (N. S.) 498. 
 
 But where a negotiable Note is found in circulation after it is due, it car- 
 ries suspicion on the face of it. The question instantly arises. Why is it in 
 circulation, — why is it not paid? Here is something wrong. Therefore, 
 although it does not give the indorsee notice of any specific matter of de- 
 fence, such as set-off, payment, or fraudulent acquisition, yet it puts him on 
 inquiry ; he takes only such title as the indorser himself has, and subject 
 to any defence which would be made, if the suit were brought by the in- 
 dorser. The Note does not cease to be negotiable ; the indorsee takes a 
 title, and may sue, but he is so far in privity with his indorser that he takes 
 only his title ; and if the defendant could make any defence against a suit 
 brought by such indorser, he can make it against the indorsee. 
 
 This rule is settled in the case of a suit by an indorsee taking the Note 
 overdue, by a series of authorities, which show not only that such defence 
 may be made, but that it may be proved by the same evidence by which it 
 might have been proved if the indorser were plaintiff ; to wit, the admis- 
 sions of such indorser, made whilst he was the holder. Sylvester v. Crapo, 
 15 Pick. 92; Barough v. White, 4 B. & C. 325; Phillips v. Cole, 10 A. & 
 El. 106 ; Beauchamp v. Parry, 1 B. & Ad. 89. These authorities might be 
 multiplied almost indefinitely. 
 
 But the indorsement of a Note,' overdue, is only one mode of giving the 
 indorser notice that there is some matter of defence relied on ; if he has 
 express notice, he may take it and may sue the Note, but he takes subject 
 to such defence as the defendant might make against the indorser. 
 
 The case in an early volume of the Reports of this Court, Wilson v. 
 Holmes, 5 Mass. 543, was one where the plaintiff had notice in the form of 
 the indorsement, which was : " Pay T. W., or order, for our use, value re- 
 ceived in account." See Humphries v. Blight, 4 Dall. 370 ; W^hite v. Nib- 
 ling, 11 John. 128. In the early leading case on this subject. Brown v. 
 Davies, 3 Term, 80, 83, Lord Kenyon, who w£is not disposed to go quite the 
 length of the doctrine held by Mr. Justice BuUer, says : " I agree, &c. if it 
 appears on the face of the Note to have been dishonored, or if knowledge 
 can be brought home to the indorsee that it had been so." In a note to the 
 same case, in Taylor v. Mather, where the defence was, that the Note was 
 obtained by fi-aud, and where it was negotiated when overdue, Buller, J. 
 
204 PROMISSORY NOTES. [CHAP. IV. 
 
 has any notice thereof or not.^ But when we speak of equi- 
 ties between the parties, it is not to be understood, by this 
 expression, that all sorts of equities existing between the par- 
 ties, from other independent transactions between them, are 
 intended ; ^ but only such equities as attach to the particular 
 Note,^ and as between those parties, would be available to 
 
 says : " Such a Note is negotiable, but if there are any circumstances of 
 fraud in the transaction, I have always left it to the jury, on the slightest 
 evidence, to presume that the indorsee was acquainted with the fraud." 
 
 It seems, therefore,' that it is not that the indorsement of a Note after it 
 is due is per se such as to render the Note void, or to defeat the right of the 
 plaintiff, but if there are anterior circumstances, such as fraud in obtaining 
 the Note, the fact that the indorsee takes it when overdue, is a circumstance 
 of suspicion which should put him on inquiry, and leads to a presumption 
 that he knew, or by inquiry might know, of such fraud, and is deemed con- 
 structive notice of it. It identifies the title of the indorsee with that of the 
 indorser. This teing so, actual notice of such fraud, brought .home to the 
 knowledge of the indorsee at the time he took the Note by indorsement, is 
 equally availing to prove that he is not a bona fide holder, and to give the 
 defendant the same ground of defence as he would have had against the in- 
 dorser. And see Bryant v. Couillard 32 Maine, 520 ; Starr v. Torrey, 2 
 New Jer. 190.] 
 
 ' Ibid. ; Bayley on Bills, ch. 5, § 3, pp. 162, 163 (5th edit. 1830) ; Chitty 
 on Bills, ch. 6, pp. 243, 244 (8th edit. 1833) ; Lee v. Zagury, 8 Taunt. 114 ; 
 Kothschild V. Corney, 9 B. & C. 391 ; 3 Kent, Lect. 45, pp. 91, 92 (4th 
 edit); Down v. Hailing, 4 B. & C. 330; Andrews v. Pond, 13 Peters, 65. 
 It seems that, in Scotland, the indorsement of a Bill which is overdue does 
 not affect the indorsee With the equities -between the original parties, unless 
 there are some marks of dishonor on the Bill. 1 Bell, Comm. B. 3, ch. 2, 
 §4, p. 403 (5th edit.). 
 
 ' [In some States a set-off to a Note, good between the maker and the 
 payee, may be a defence to a suit by an indorsee after maturity against the 
 maker, as well as a payment of the Note itself. Bond v. Fitzpatrick, 4 
 Gray, 89 ; Baxter v. Little, 6 Met. 10 ; Sargent v. Southgate, 5 Pick. 312.] 
 
 ' [See Oulds V. Harrison, 28 Eng. Law & Eq. 524, where, to an action 
 by the indorsee against the acceptor of a Bill of Exchange, the defendant 
 pleaded that after the Bill became due, and before indorsement, the drawer 
 was indebted to the defendant in a sum exceeding the amount of the Bill, 
 and that the drawee, in order to defraud the defendant, and in collusion 
 with the plaintiff, indorsed the Bill to the plaintiff after it became due, in 
 order to enable him to sue the defendant on it, and without consideration, 
 and that the plaintiff sued merely as the agent of the drawer and in collu- 
 
CHAP. IV.] EIGHTS OF PARTIES ON TRANSFERS. 205 
 
 control, qualify, or extinguish any rights arising thereon.^ 
 
 [The true test to determine wliether a Note is subject to an 
 
 sion with him, and that the sum due from the drawer to the defendant had 
 not been paid, and it was held that the plea was no answer to the action. 
 
 Parke, B. said : " A plea not substantially different from this was held 
 by this Court to an issuable plea in the case of Watkins v. Bensusan, where 
 judgment was signed for want of a plea after the defendant had given the 
 usual undertaking to plead issuably. But in such cases it is not usual to 
 allow judgment to be signed, unless the plea is manifestly bad, which this 
 plea is not, there certainly being a fair question here about it. \Ye think, 
 upon full consideration, that the plea is bad. It must be considered as 
 entirely settled by the case of Burrough v. Moss, that the indorsee of an 
 overdue Bill takes it subject to all the equities that attach to the Bill itself 
 in the hands of the holder when it was due ; as, for instance, payment or 
 satisfaction of the Bill itself to such holder, or where the title of such holder 
 was to secure a lien upon the Bill for the amount of an unsettled account ; 
 although, in point of fact, that point was not decided, it is treated in the 
 books as having been a point in discussion in the case of CoUenridge v. 
 Farquharson, 1 Stark. 259. But the indorsee does not take it subject to 
 the claim arising out of collateral matters. There are cases where the 
 Bill has been paid, or where the lien has been created on the Bill in the 
 hands of the holder at the time it is due. In that case the subsequent taker 
 of the Bill must take it subject to repayment or right of action, or that lien, 
 whatever it may be ; but the indorsee does not take it subject to claims 
 arising out of collateral matters, as the statutory right of set-off, which is 
 merely a mode of preventing multiplicity of actions between the same par- 
 ties. The doctrine that was laid down in Burrough v. Moss has been fol- 
 lowed in the case of Stein v. Yglesias, 1 C, M. & R. 565 ; and the view we 
 took in that case has never been disputed since. The notice of the exist- 
 ence of the set-off to the holder of the Bill at the time it was due makes no 
 difference, as was settled in the case of Whitehead v. Walker, 10 M. & W. 
 696 ; unless, indeed, express notice was given by the party liable, and evi- 
 dence of an acquiescence such as would amount to proof of an agreement 
 to let in the set-off assented to by both parties, and then it would be in 
 satisfaction of the Bill, and depend entirely upon the statute itself. This 
 being clearly settled, what is the effect of the indorsement of an overdue 
 Bill under the circumstances mentioned in the plea ? This plea, though 
 inaccurately stated, we think amounts to an averment that both the indorser 
 and indorsee knew that there was a debt due, and that the defendant would 
 probably set it off if the action were brought by the indorser against the 
 
 ' Bayley on Bills, ch. 5, § 3, pp. 161, 162 (5th edit. 1830) ; Burrough v. 
 Moss, 10 B. & C. 563; Story on Bills, § 187, note (3); Whitehead v. 
 Walker, 10 M. & W. 696 ; Gullet v. Hoy, 15 Mo. 399 ; Unseld v. Stephen- 
 Son, 33 Mo. 161 ; Kyan v. Chew, 13 lo. 539. 
 
206 PROMISSORY NOTES. [CHAP. IV. 
 
 equity, set up by the maker, is this : Could the payee, at the 
 time he transferred the Note, have maintained a suit upon it 
 
 defendant, knowing there would probably be a set-off (because it was not 
 quite certain that the debt would still remain due), but knowing there 
 would probably be a set-off; in order to defeat the set-off, they fraudulently, 
 so far as it was a fraud in law, and no further, agreed that the Bill should 
 be indorsed ; and it was therefore indorsed without value to the plaintiff. 
 Although the plaintiff gave no value, the Bill is transferred to him by in- 
 dorsement, and he has a right to sue upon it as much as any indorsee who 
 is the holder for value. There is, therefore, no defect in his title, on that 
 account. The only question then is, does the supposed fraud vitiate the 
 title, and in what way? Is it really a fraud, though called so? We 
 think it is no fraud. The holder is under no legal obligation to allow the 
 debt to be set off against the claim on the Bill, unless he has entered into a 
 contract to that effect with the defendant. We think this contract would 
 create an equity in favor of the defendant, or attach to an overdue Bill. 
 The holder's power to circulate it is not restrained simply by the existence, 
 at the time, of a debt of equal value, and his circulating it is no infringe- 
 ment of any existing right of the defendant. It is wholly contingent 
 whether the defendant will have a debt due to him from the plaintiff when 
 the Bill is sued on ; and if there be, whether the defendant will choose to 
 plead a set-off. Till then the whole amount of the Bill is due to the plain- 
 tiff, and if he indorses over the Bill, although he must have known the 
 contingent right to set-off would be defeated, that clearly would give a good 
 title. Does it become a fraud in defeating the title, if he actually intends 
 to do that which, under the circumstances, would be the necessary result of 
 this act ? and would it become so, if he communicates that intention to the 
 indorsee, and the latter agrees to assist him ? This, we think, is no fraud, 
 and does not avoid the transaction. If it was a fraud, what would be the 
 consequence ? The transfer would be valid between the parties, and it 
 would only be void as against the party intended to be defrauded. That 
 would not enable the defendant to set off against the Bill a debt due to 
 another, for that would be against the words of the statute, which applies 
 only to mutual debts between the plaintiff and the defendant. That is the 
 case of Isberg v. Bowden. The cases in which set-off have been allowed, 
 not of debts due from the plaintiff to the defendant, are explained in the 
 judgment in that case. There are cases where the real principal has per- 
 mitted another to deal as owner, and cannot be permitted to intervene 
 without allowing the same defence against the real principal, which he 
 would have had against the apparent one. That is entirely different from 
 the present case. The cases which I have looked to are Carr v. Hinchliff, 4 
 B. & C. 547, and George v. Clagett, 7 Terra, 859, which are explained 
 in Tuck v. Tuck, 5 Mee. & W. 109. We think, for these reasons, that the 
 plea is bad.] 
 
CHAP. IV.] EIGHTS OF PARTIES ON TKANSFEES. 207 
 
 against the maker, if it had then been mature ? i] Still, how- 
 ever, subject to such equities, the holder, by indorsement 
 after the maturity of a Note, will be clothed with the same 
 rights and advantages as were possessed by the indorser, and 
 may avail himself of them accordingly.^ 
 
 § 179. The law of Prance, in a great measure, recognizes 
 the like distinction between indorsements before and in- 
 dorsements after the maturity of a Note. In the later case, 
 all the equities between the other parties are not only let in, 
 but even those of the creditors of the indorser, who have, be- 
 fore the indorsement, and after the maturity, levied attach- 
 ments of the debt in the hands of the debtor.^ 
 
 § 180. But there is a period when Promissory Notes cease 
 altogether to be negotiable, in whosesoever hands they may 
 then be, so far as respects the antecedent parties thereto, who 
 would be discharged therefrom by the payment thereof. 
 Thus, for example, when a Note has once been paid by the 
 maker, after it has become due (although not if paid before 
 due, and the fact be unknown to the holder*), it loses all its 
 validity, and can no longer be negotiable.° [And if paid by 
 one co-maker, or a surety,^ who thereupon takes an indorse- 
 ment by the payee, the Note cannot afterwards be put in cir- 
 culation against the other maker.'^ So, if the drawer of a 
 
 ' Furnis v. Gilchrist, 1 Sandford, 53. See Hedges v. Sealy, 9 Barb. 
 214. A Note transferred after maturity is not subject to equities in favor 
 of the maker that arise after the transfer; Campbell v. Rusch, 9 lo. 397; 
 but only to those that exist at the time of the transfer. Elwell v. Dodge, 33 
 Barb. 336. . 
 
 ^ Chitty on Bills, ch. 6. p. 245 (8th edit. 1833) ; Chalmers v. Lanion, 1 
 Camp. 383. 
 
 ' Pardessus, Droit Coram. Tom. 2, art. 351, 352 ; Chitty on Bills, ch. 6, 
 p. 242, and note c (8th edit. 1833) ; Story on Bills, §§ 220, 22] . 
 
 • Bayley on Bills, ch. 5, § 3, p 166 (5th edit. 1830) ; Burbridge v. Man- 
 ners, 3 Camp. 194 ; Chitty on Bills, ch. 6, pp. 248, 249 (8th edit. 1833). 
 
 ' Bayley on Bills, ch. 5, § 3, pp. 165, 16S (5th edit. 1830) ; Beck v. Eob- 
 ley, 1 H. Black. 89, note ; Chitty on Bills, ch. 6, p. 248 (8th edit. 1833) ; 
 Bartrum «. Caddy, 9 A. & El. 275, 281. 
 
 » [Hopkins v. Farwell, 32 N. H. 425.] 
 
 ' Pray v. Maine, 7 Cush. 253. 
 
208 PROMISSORY NOTES. [CHAP. IV. 
 
 Bill of Exchange, drawn for his accommodation, and ac- 
 cepted without consideration, pay the Bill at maturity, and 
 then indorse it over to a third party, the latter can maintain 
 no action against the acceptor.^] So, if a Note be dishonored 
 hy the maker, and it is then taken up by the payee, or first 
 indorser, he cannot negotiate it, so as to charge the subse- 
 quent indorsers, although he might, so as to charge himself, 
 or the maker, if the latter be liable to him.^ Still, however, 
 Notes remain negotiable even after payment, so far as respects 
 all parties who shall knowingly negotiate the same after- 
 wards ; for in such a case the negotiation cannot prejudice 
 any other persons, and will only charge themselves.^ [But 
 the indorsement of a negotiable Note, after its dishonor, is a 
 new and independent contract, distinct from the original 
 Note, and, in its effect between the indorser and indorsee, dis- 
 tinct from the negotiable character of such Note ; so that if 
 indorsed to a particular person, by name, without adding the 
 words " or order," or equivalent words of negotiability, he 
 cannot transfer it by indorsement so as to enable his indorsee 
 to sue upon it in his own name.*] 
 
 ' 1 [Parr v. Jewell, 32 Eng. Law & Eq. 394. A very important and 
 well-considered ease on this subject.] 
 
 ' Ibid ; Callow v. Lawrence, 3 M. &. S. 95 ; Hubbard v. Jackson, 4 Bing. 
 390 ; Leavitt v. Putnam, 1 Sandford, 199 ; [Cochran v. Wheeler, 7 N. H. 
 302 ; Davis v. Stevens, 10 N. H. 186; J Chitty on Bills, ch. 6, pp. 248, 249 
 (8th edit. 1833). 
 
 * Bayley on Bills, ch. 5, § 3, p. 166 (5th edit. 1830) ; Boehm v. Sterling, 
 7 Term, 423 ; Callow v. Lawrence, 3 M. & S. 95 ; Hubbard v. Jackson, 4 
 Bing. 390 ', Guild v. Eager, 17 Mass. 615 ; Havens «. Huntington, 1 Cowen, 
 387 ; Mead v. Small, 2 Greenl. 207 ; Story on Bills, § 223. 
 
 * Leavitt v. Putnam, 1 Sandford, 199. 
 
CHAP, v.] CONSIDERATION, — SUFFICIENCY OF. 209 
 
 CHAPTER Y. 
 
 PROMISSORY NOTES, — CONSIDERATION, WHAT IS SUFFICIENT, 
 AND BETWEEN WHOM NECESSARY. 
 
 § 181. Having thus ascertained the general rights, obliga- 
 tions, and duties of the different parties to Promissory Notes, 
 and the operation of the Lex loci contractAs, wliich is re- 
 sorted to in order to ascertain and regulate the rights^ 
 obligations, and duties, growing out of them, we may next 
 proceed to the examination of the question, What considera- 
 tion is, in point of law, required, in order to give those rights, 
 obligations, and duties a solid support, so as to make thera 
 capable of being enforced and vindicated in courts of justice ? 
 Promissory Notes, like Bills of Exchange, enjoy, as has been 
 already suggested,^ the privilege, conceded to no other un- 
 sealed instruments, of being presumed to be founded upon a 
 valid and valuable consideration. Hence, between the original 
 parties, and, a fortiori, between others, who, by indorsement 
 or otherwise, become bona fide holders, it is wholly unneces- 
 sary to establish that a Promissory Note was given for such 
 a consideration ; and the burden of proof rests upon the 
 other party, to establish the contrary, and to rebut the pre- 
 sumption of validity and value, which the law raises for the 
 protection and support of negotiable paper.^ Still, however, 
 
 ' Anle, § 7. 
 
 ' Chitty on Bills, ch. 3, § 1, pp. 78-85 (8th. edit. 1833) ; Id. pp. 90-92 •, 
 Lines v. Smith, 4 Florida, 47 ; Sawyer v. Vaughan, 25 Maine, 337 ; Fitch 
 V. Redding, 4 Sandf. 130 ; Greer v. George, 3 English, 131 ; 2 Greenl. Evi- 
 dence, § 172 ; Collins v. Martin, 1 Bos. & Pull. 651 ; Holliday v. Atkinson, 
 5 B. &. C. 501 ; Coburn v. Odell, 10 Foster, 540 ; Bristol v. Warner, 19 Conn. 
 7. [Contra in Massachusetts. Delano v. Bartlett, 6 Cush. 364. And see 
 Commonwealth v. McKie, 1 Leading Criminal Cases, and Bennett's note. 
 In Delano v. Bartlett, Fletcher, J. said : " The plaintiff having produced 
 14 
 
210 PROMISSORY NOTES. [CHAP. V. 
 
 this does not dispense, as we shall presently see, mth the 
 existence of an actual, valid, and valuable consideration to 
 
 the Note on which this action was brought, and the signatures being ad- 
 mitted, rested her case on that evidence. The defence relied on at the trial 
 was a want of consideration. To maintain this defence, the defendants 
 offered evidence, that the sum received by Bartlett of the plaintiff, and for 
 which the Note was given, was Bartlett's own money, and was paid to him 
 by the plaintiff, supposing him entitled to it ; and that the Note was taken 
 for it, on the understanding and agreement, that if, on the settlement of the 
 affairs between Bartlett and the plaintiff's intestate, it should appear that 
 Bartlett was not entitled to the money, the plaintiff might call for it on this 
 Note ; and that in point of fact the whole sum for which the Note was given 
 belonged to'Bartlett, and was less than he was entitled to, and that no part 
 of it belonged to the plaintiff's intestate. All the evidence was submitted 
 to the jury, to be considered and weighed by them in settling the questions 
 of fact involved in the defence. 
 
 " The plaintiff, relying on the Note, which, upon its face, imported a con- 
 sideration, and thus making out a prima facie case, requested the Court to 
 instruct the jury, that the burden of proof was on the defendants, to es- 
 tablish the want of consideration. But the defendants having produced 
 evidence tending to disprove or overcome this prima facie case, on the part 
 of the plaintiff, and the proof on both sides being applied to the afBrmative 
 or negative of the same issue, the plaintiff being the party whose case re- 
 quired proof of a consideration, the presiding judge instructed the jury, 
 that the burden of proof was throughout on the plaintiff, to satisfy them, 
 upon the whole evidence in the case, of the fact of a consideration for the 
 Note. To this ruling and instruction the plaintiff's counsel excepted. 
 
 " The rule in regard to the burden of proof is laid down with great dis- 
 tinctness in the case of Powers v. Eussell, 13 Pick. 69, 76. The Chief Jus- 
 tice says: 'It was stated here that the plaintiff had made out s, prima fade 
 case, and therefore that the burden of proof was shifted and placed on the 
 defendant. In a certain sense this is true. When the party, having the 
 burden of proof, establishes a prima facie case, and no proof to the contrary 
 is offered, he will prevail. Therefore the other party, if he would avoid 
 the effect of the prima facie case, must produce evidence of equal or greater 
 weight, to balance or control it, or he will fail. Still, the proof upon both 
 sides applies to the affirmative or negative of one and the same issue or prop- 
 osition of fact, and the party whose case requires the proof of that fact 
 has all along the burden of proof. It does not shift, though the weight in 
 either scale may at times preponderate. But when the party having the 
 burden of proof gives competent and prima facie evidence of a fact, and 
 the adverse party, instead of producing proof which would go to negative 
 the same proposition of fact, proposes to show another and a distinct propo- 
 
CHAP. V.J CONSIDEKATION, — SUFFICIENCY OF. 211 
 
 support the Note ; but it only shifts the burden of proof from 
 
 the plaintiff to the defendant.^ [In some tribunals, however, 
 
 this presumption of a consideration is limited to negotiable 
 
 paper, and to that in which a consideration is expressly 
 
 acknowledged.^] 
 
 § 182. But, besides the question of the existence of a con- 
 
 sition, which avoids the eflfect of it, then the burden of proof shifts and rests 
 upon the party proposing to show the latter fact.' 
 
 " Apply this rule to the present case, and it is quite clear that the in- 
 struction to the jury was entirely correct. It was incumbent on the plain- 
 tiff to prove a consideration for the Note, which was the foundation of the 
 suit. ■ That was a part of her case, and the burden was on her to establish 
 that fact. But the Note itself was prima facie evidence of a consideration ; 
 so that, by producing the Note, the plaintiff made a. prima facie case. That 
 evidence, if not rebutted, would be sufficient to maintain the plaintiff's 
 case. But it was competent for the defendants to rebut this evidence on 
 the part of the plaintiff, and thus to avoid the prima facie case made by 
 her. Accordingly, the defendants did offer evidence to rebut the evidence 
 on the part of the plaintiff, and to show that there was no consideration. 
 The evidence on both sides applied to the affirmative or negative of the 
 same issue or proposition of fact, a consideration for the Note, and the 
 plainftf's case requiring her to establish that fact, the burden of proof was 
 all along on her to satisfy the jury, upon the whole evidence in the case, 
 of the fact of a consideration for the Note. The rule, as laid down in the 
 case of Powers v. Eussell, has been fully recognized in the cases of Parish 
 V. Stone, 14 Pick. 198, 201 ; Davis v. Jenney, 1 Met. 221, 224; Sperry v. 
 Wilcox, 1 Met. 267 ; Commonwealth v. Dana, 2 Met. 329, 340 ; Brown v. 
 King, 5 Met. 173, 180; Tourtellot v. Rosebrooky 11 Met. 460,463. In 
 Jennison v. Stafford, 1 Cush. 168, the defence was not an original want of 
 consideration, but a failure of consideration ; that is, to avoid the prima 
 facie case of the plaintiff made by producing the Note, the defendant pro- 
 posed to show another and distinct proposition. The Court no doubt 
 correctly ruled, that the burden of proof was on the defendant, to make out 
 this distinct proposition to avoid the prima facie case of the plaintiff. There 
 is a sentence in this opinion which may be misunderstood. The judge, in 
 delivering the opinion, says : ' Such a Note is presumed to be founded on a 
 valid and sufficient consideration, and the burden of proof is on the maker 
 to establish the contrary.' This must be understood to mean, that the 
 burden of proof is on the maker to rebut the prima facie case made by 
 producing the Note, otherwise the prima facie evidence will be conclu- 
 sive."] 
 
 ' Story on Bills, §§ 193, 194; Jennison v. Stafford, 1 Cashing, 168. 
 
 2 Bristol V. Warner, 19 Conn. 7. 
 
212 ' PKOMISSOKY NOTES. [CHAP. V. 
 
 sideration, another may arise ; — In what cases, and between 
 what parties, the consideration on which the Note is founded, 
 or on which it lias been transferred, is inquirable into ? And 
 under what circumstances may the want, or failure, or ille- 
 gality of the consideration be insisted on, by way of defence or 
 bar to the right of recovery on the Note, not only between 
 the original parties, but also between them and others, pos- 
 sessing a derivative title thereto, under the indorsement, or 
 otherwise, from them ? ^ Let us, therefore, in the first place, 
 examine what consideration, in point of law, is necessary, to 
 give legal operation and support to a Note ; and,' in the next 
 place, between what parties, and under what circumstances, 
 the consideration is inquirable into, as a defence or bar to an 
 action brought thereon. 
 
 § 183. And, in the first place, as to what consideration is 
 necessary to maintain a Promissory Note. At the Common 
 Law (and the same rule pervades the Roman Law and the 
 foreign Commercial Law^) a valuable consideration is, in 
 general, necessary to support every contract, otherwise it is 
 treated as a nude and void pact, Nudum pactum ; and the 
 maxim, in such a case, is. Ex nudo pacta non oritur actio? 
 This rule is equally applicable, under the limitations before 
 suggested, to Promissory Notes, as it is to other contracts.^ 
 And there must not only be a consideration, but, in the just 
 sense of the law, it must be legal, as well as adequate.^ 
 
 ' Bristol V. Warner, 19 Conn. 7. 
 
 ^ Pothier on Oblig. n. 4, p. 42. 
 
 ' Chitty on BiUs, ch. 3, § 1, pp. 79-85 (Sth edit. 1833); Bayley on 
 Bills, cli. 12, pp. 494-504 (5th edit. 1830) ; Sharington v. Strotton, Plow- 
 den, 308 ; Dig. Lib. 2, tit. 14, 1. 7, § 4 ; Pothier, Pand. Lib. 2, tit. 14, n. 
 33 ; Pothier on Oblig. n. 4, p. 42 ; Pothier, by Evans, Vol. 2, n. 2, pp. 
 19-25. 
 
 •.Chitty on Bills, ch. 3, § 1, pp. 78-85 (8th edit. 1833) ; Bayley. on 
 Bills, ch. 12, pp. 494, 495 (5th edit. 1830). 
 
 ' Chitty on Bills, ch. 3, § 1, pp. 78-80 (8th edit. 1833); Bayley on 
 Bills, ch. 12, pp. 494, 495 (5th edit. 1830). A carman had long done the 
 business of a store ; by the consent of the proprietors he gave to another 
 one half the work, and took a note for the privilege, held a good considera- 
 
CHAP, v.] CONSIDKRATION, — SUFFICIENCY OF. 213 
 
 § 184. What consideration is deemed valuable and sufB 
 cient in point of law, or not, to support contracts generally, 
 or Promissory Notes in particular, may be stated in a few 
 words. First, A consideration, founded in mere love, or 
 affection, or gratitude (which, in a technical sense, is called 
 a good consideration, in contradistinction to a valuable con- 
 sideration) is not sufficient to maintain an action on a Note. 
 Thus, a Note drawn by the maker, as a gift to a son or other 
 relative, or to a friend, is not sufficient to sustain the Note 
 between the original parties.^ 
 
 § 185. A mere moral obligation, although coupled with 
 an express promise, is not a sufficient consideration to sup- 
 port a Note between the same parties.^ It has, indeed, in 
 some cases been broadly laid down, that where a man is un- 
 der a moral obligation, which no court of law or equity can 
 enforce, and he promises, the honesty and rectitude of the 
 thing is a consideration.^ But this doctrine must be received 
 with many qualifications ; and is now restricted to much 
 narrower limits.* The true doctrine, as now established, 
 seems to be, that a consideration, which the law esteems 
 
 tion, being in the nature of a good-will of a business. Searing v. Tye, 4 
 E. D. Smith, 197. A policy issued by an insolvent Ins. Co. is a good con- 
 sideration for a Note for the premium, if not known by its officers and agents 
 to be insolvent. Lester v. Webb, 5 Allen, 569. A deed with covenants of 
 a third person is a good consideration, though the title fails. Bass v. Ranr 
 dall, 1 Min. 404 ; Crawford v. Eobie, 42 ZST. H. 162. 
 
 ' Chitty on Bills, ch. 3, pp. 85, 86, and notes (8th edit. 1833) ; Bayley 
 on Bills, ch. 12, pp. 502-504 (5th edit. 1830) ; Fink v. Cox, 18 John. 145; 
 Holliday v. Atkinson, 5 B. & C. 501 ; Blogg v. Pinkers, 1 Ryan & Mood. 
 125 ; Phelps w. Phelps, 28 Barb. 121. And a note given by an heir as 
 evidence of an advance to him by the payee is without consideration as a 
 debt, and is void. Hardin v. Wright, 33 Mo. 452. But see contra, Bowers 
 V. Hurd, 10 Mass. 427. It seems difficult to support this last case upon 
 principle or authority. [It is in effect overruled in Hill v. Buckminster, 5 
 Pick. 393, and Parish v. Stone, 14 Pick. 202.] 
 
 " Nightingale v. Barney, 4 Greene (lo.), 106. 
 
 ^ Hawkes v. Saunders, Cowp. 289 ; Lee v. Muggeridge, 5 Taunt. 36 ; 
 Seago V. Deane, 4 Bing. 459. 
 
 * Littlefield v. Shee, 2 B. & Ad. 811 ; Eastwood v. Kenyon, 11 A. & 
 El. 438, 450 ; Beaumont v. Keeve, 8 Q. B. 483. 
 
214 PEOMISSOEY NOTES. [CHAP. V. 
 
 Taluable, must in all cases exist, in order to furnish a just 
 foundation for an action. Where there is a precedent duty, 
 which would create a sufficient legal or equitable right, if 
 there had been an express promise at the time, or where 
 there is a precedent consideration, which is capable of being 
 enforced, and is not extinguished, unless at the option of the 
 party, founded upon some bar or defence which the law jus- 
 tifies but does not require him to assert, there an express 
 promise will create or revive a just cause of action.^ Thus, 
 for example, if A has paid a debt due by B, without the re- 
 quest of B, the law will not raise a promise by B, by implica- 
 tion, to repay the money to A; but if B, in consideration 
 thereof, makes an express promise, it is valid and obligatory .^ 
 So, if a debt is discharged by mere operation of law without 
 payment, as by the statute of limitations, or by a discharge 
 in bankruptcy,^ an express promise by the party to pay, it 
 will revive the ojjligation.* So, if a contract is voidable, but 
 founded in a consideration otherwise^valuable or sufficient, an 
 express promise to' pay it will support and confirm its obliga- 
 tion ; but not, if it be originally void.^ Thus, a promise, 
 after age, by a person, to pay a debt not for necessaries, con- 
 tracted during his infancy, will be binding ; and a negotiable 
 security given therefor will acquire validity by such new 
 promise or confirmation of it.® But a promise by a woman, 
 
 ' See Wennall v. Adney, 3 Bos. & Pull. 247, and the note of the learned 
 Reporters, p. 249, note (a); Eastwood v. Kenyon, 11 A. & El. 438; 
 Bayley on Bills, ch. 12, p. 504 (oth edit. 1830) ; Chitty on Bills, ch. 3, 
 p. 84 (8th edit. 1833). 
 
 ^ See Serg. Williams's note (1) to Osborne «. Rogers, 1 Saund. 264; 
 Hayes v. Warren, 2 Str. 933 ; Stokes v. Lewis, 1 Term, 20. 
 
 ^ [Way V. Sperry, 6 Cush. 238. But it is otherwise as to a promise to 
 pay a debt voluntarily released. Warren v. Whitney, 24 Maine, 561.; 
 Valentine v. Foster, 1 Met. 520.] 
 
 * Eastwood V. Kenyon, 11 A. & El. 438;' Hawkes v. Saunders, Cowp. 
 289, 290. 
 
 " Littlefield v. Shee, 2 B. & Ad. 811 ; Eastwood v. Kenyon, 11 A. & 
 El. 438. 
 
 ° Hawkes v. Saunders, Cowp. 289, 290 ; Eastwood v. Kenyon, 11 A. & 
 El. 438. 
 
CHAP, v.] CONSIDERATION, — SUFFICIENCY OF. 215 
 
 who is sole, to pay a debt -which she had previously con- 
 tracted, while she was married and under coverture, would 
 not be valid ; because such a contract on her part is ab 
 initio void, and not merely voidable.'^ [So, also, a Note 
 given by a person to an ofiScer of a benevolent society, for his 
 initiation fee as a member, and for his quarterly dues, will 
 not have a sufficient consideration .^j 
 
 § 186. Secondly, What, then, is a valuable consideration 
 in the sense of the law ? It may, in general terms, be said 
 to consist either in some right, interest, profit, or benefit, ac- 
 cruing to the party who makes the contract, or some forbear- 
 ance, detriment, loss, responsibility, or act, or labor, or 
 service, on the other side.^ And, if either of these exists, it 
 will furnish a sufficient valuable consideration to sustain 
 the making or indorsing a Promissory Note in favor of the 
 payee, or other holder. Thus, for example, not only money 
 paid, or advances made, or credit given, or the discharge of 
 a present debt, or work and labor done, will constitute a suf- 
 ficient consideration for a Note ; but also, the receiving a 
 Note as security for a debt, or forbearance to sue a present 
 claim or debt, or an exchange of securities, or becoming a 
 surety, or doing any other act at the request or for the bene- 
 fit of the maker or indorser, will constitute a sufficient con- 
 sideration for a Note.* The common case of bankers, receiv- 
 ing Bills of their customers for collection, affijrds an apt 
 illustration of this doctrine ; for they are deemed holders, 
 
 ' Eastwood & Kenyon, 11 A. & El. 438 ; Lloyd v. Lee, 1 Str. 94. But 
 see post, §§ 274, 275. A married woman bought goods and gave her Note 
 before the Statute giving her sole and separate rights ; after the Statute the 
 goods still remained her separate property, and she gave a new Note, and 
 it was held to be a valid Note upon good consideration. Barton v. Beer, 
 35 Barb. 78. 
 
 ' Nash V. Russell, 5 Barb. 556. 
 
 ' Com. Dig. Action on the'Case, Assumpsit, B. 1 - 15. 
 
 * Com. Dig. Action of Assumpsit, B. 1, 2, 4, 5, 9, 10 ; Bayley on Bills, oh. 
 12, p. 505 (5th edit. 1830) ; Chitty on Bills, ch. 3, pp. 84, 85 (8th edit. 1833) ; 
 Bosanquet v. Dudman, 1 Stark. 1 ; Heywood v. Watson, 4 Bing. 496 ; Kent 
 V. Lowen, 1 Camp. 179, note; Rolfe v. Caslon, 2 H. Black, 571 ; Horn- 
 blower V. Proud, 2 B. & Al. 327 ; post, § 194. 
 
21& PROMISSOEY NOTES. [CHAP. V; 
 
 for value, not only to the amount of advances already made 
 by them, either specifically or upon account, but also for 
 future responsibilities incurred upon the faith of thepi.^ So, 
 also, any act, done at the request of the party making the 
 contract, for the benefit of a third person, such as paying the 
 debt of a third person, or forbearing to sue for a debt due by 
 such person,^ or discharging such debt, or guaranteeing such 
 debt, or becoming liable for the acts or defaults of a third 
 person, -will, in like manner, be a sufficient consideration to 
 support the contract.^ [So, under the charter of a mutual 
 insurance company, the mutual agreement and association of 
 the parties respectively giving Notes for premiums in advance, 
 have been held a sufficient consideration for the Notes.*] A 
 pre-existing debt is equally available, as a consideration, as 
 is a present advance, or value, given for the Note.^ Even 
 the settlement of a doubtful claim, preferred against the 
 party, will be a sufficient and valid consideration, without 
 regard to the legal validity of the claim, if it be fairly 
 made.^ 
 
 ' Bosanquet v. Dudman, 1 Stark. 1 ; Ex parte Bloxtam, 8 Ves. 531 ; 
 Heywood v. Watson, 4 Bing. 496 ; Bramah v. Roberts, 1 Bing. (N. C.) 469 ; 
 Percival v. Framptoh, 2 C, M. & R. 180 ; Swift v. Tyson, 16 Peters, 1, 21, 
 22 ; Bank of the Metropolis v. New England Bank, 1 How. (U. S.) 239 ; 
 S. C. 17 Peters, 174; Barnett v. Brandao, 6 M. & Gr. 630, 670; post, 
 §195. 
 
 = Robinson v. Gould, 11 Cush. 55. 
 
 ' Comm. Dig. Action of Assumpsit, B. 3, 11, 15 ; Bayley on Bills, ch. 12, 
 p. 504 (5tli edit. 1830) ; Chitty on Bills, ch. 3, pp. 80, 84 (8th edit. 1833) ; 
 Poplewell V. Wilson, 1 Str. 264 ; Ridout v. Bristow, 1 Tyrw. 84 ; S. C. 1 
 Crorap. &. Jerv. 231. A promise by an executor or administrator, to pay 
 a debt of the intestate or testator, is not valid, unless he has assets. Ten 
 Eyck u. Vanderpoel, 8 John. 120; Schoonmaker v. Roosa, 7 John. 301; 
 Bank of Troy v. Topping, 9 Wend. 273. But see Ridout v. Bristow, 1 
 Cromp. & Jerv. 231 ; S. C. 1 Tyrw. 84. 
 
 * Brouwer v. Appleby, 1 Sandford, 158; Hone v. Allen, Ibid. 171 ; Hone 
 i;. Folger, Ibid. 177. 
 
 * Townsley v. Sumrall, 1 Peters, 170; Swift v. Tyson, 16 Peters, 11; 
 Blanchardu. Stearns, 3 Cush. 162; Brush v. Scribner, 11 Conn. 388; Wil- 
 liams V. Little, 11 N. H. 66. 
 
 ' Russell V. Cook, 3 Hill, 504. 
 
CHAP, v.] CONSIDEKATION, — SUFFICIENCY OF. 217 
 
 § 187. The objection to a Note may be, that there is a to- 
 tal want of consideration to support it ; or that there is only 
 a partial want of consideration.^ In the first case, it goes to 
 the entire validity of the Note, and avoids it.'* In the latter 
 case, it affects the Note with nullity only pro tanto.^ The 
 same rule applies to cases where there was originally no want 
 of consideration, but there has been a subsequent failure 
 thereof, either in whole, or in part.* For a subsequent fail- 
 ure of the consideration is equally fatal with an original 
 want of consideration, not indeed in all cases, but in many 
 cases ; ^ at least, where it is a matter capable of definite com- 
 putation, and not mere unliquidated damages.^ [In England, 
 however, a partial failure of consideration is no defence, pro 
 tanto, to a Promissory Note. The maker must pay the Note 
 
 ' See Bayley on Bills, cli. 12, pp. 494 - 504 (edit. 1830) ; Id. (Amer. edit. 
 1836, by Sewall & Phillips), pp. 531-556, where many of the American 
 cases are collected. Swifts. Tyson, 16 Peters, 1 ; post, § 194. 
 
 ' [A plea of a want of consideration ought to distinctly aver that there 
 was no other consideration than the one mentioned. Boden v. Wright, 12 
 Com. B. 445 ; Carruthers v. West, 11 Q. B. 143.] 
 
 ' Chitty on Bills, ch. 3, § 1, pp. 79 - 83 (8th edit.) ; Bayley on Bills, ch. 
 12, pp. 494, 495 (5th edit. 1830) ; Barber v. Backhouse, Peake, 61 ; Darnell v. 
 Williams, 2 Stark. 166 ; Sparrow v. Chisman, 9 B. & C. 241 ; Lewis v. Cos- 
 grave, 2 Taunt. 2 ; Wintle v. Crowther, 1 Tyrw. 213, 216. See Gascoyne 
 V. Smith, McClell. & Younge, 338 ; Stephens v. Wilkinson, 2 B. & Ad. 320 ; 
 Allaire v. Hartshorne, 1 Zabriskie (N. J.), 665. 
 
 * See Dorr v. Fisher, 1 Cush. 275 ; Harrington v. Stvatton, 22 Pick. 510 ; 
 Perley v. Balch, 23 Pick. 283. 
 
 » Chitty on Bills, ch. 3, § 1, pp. 85-88 (8th edit. 1833) ; Bayley on Bills, 
 ch. 12, pp. 494-496 (5th edit. 1830) ; Jackson v. Warwick, 7 Term, 121 ; 
 Mann v. Lent, 10 B. & C. 877 ; Day v. Nix, 9 Moore, 159. 
 
 ' Day V. Nix, 9 Moore, 159; Chitty on Bills, ch. 3, pp. 88, 89, and 
 note (i) (8th edit. 1833) ; Ledger v. Ewer, Peake, 216 ; Bayley on Bills, 
 ch. 12, pp. 495-499 (5th edit. 1830); Solomon «. Turner, 1 Stark. 51; 
 Morgan u. Richardson, 1 Camp. 40, note; Tye v. Gwynne, 2 Camp. 346; 
 Moggridge v. Jones, 14 East, 486 ; Grant v. Welchman, 16 East, 207 ; Ob- 
 bard V. Betham, 1 Mood. & Malk. 483. See the masterly judgment of Mr. 
 Baron Parke, in Mondel v. Steel, 8 M. & W. 858 ; Bracey v. Carter, 12 A. 
 & El. 373. A total failure of consideration will sometimes, but not always, 
 be a good bar or defence to an action of covenant. Cooch v. Goodman, 2 
 A. & El. New K. 580, 599 ; Com. Dig. Fait, C. 2. 
 
218' PEOMISSORY NOTES. [CHAP. V.' 
 
 and resort to his cross-actiou.^] So, if a Note is given as an 
 indemnity, it is a sufficient answer to it, tliat the party has 
 not been damnified at all, or that the original claim has been 
 extinguished. 2 So, if a Note is originally a gift, in whole or 
 in part ; ^ or, if it is founded upon a sale of goods, to which 
 the title afterwards fails, in whole or in part ; it will, pro tcm- 
 to, be void as between those parties.* 
 
 § 188. In the next place, a Promissory Note will be void, 
 where it is founded upon fraud, or duress,^ or imposition,^ or 
 circumvention, or taking an undue advantage of the party ; 
 as where he is intoxicated.^ And this doctrine is so complete- 
 
 » Sully V. Frean, 10 Exch. 404; 29 Eng. Law & Eq. 404; Warwick i;. 
 Cairn, 32 Eng. Law & Eq. 491 ; Trickey v. Larne, 6 M. & W. 278. So 
 in Vermont, Cragin v. Fowler, 34 Verm. 396 ; Richardson v. Sanborn, 35 
 Verm. 75. So in California, Reese u. Gordon, 19 Cal. 147; Walters v.. 
 Armstrong, 5 Minn. 448. In New Hampshire, partial failure is a defence 
 pro tanio, where the sum to be deducted is liquidated, or can be ascertained 
 by mere computation, otherwise not. Riddle v. Gage, 37 N. H. 519. Par- 
 tial failure is now a defence by statute. Nickols v. Huntoon, 45 N. H. 
 470. But in cases of fraud, or misrepresentation, or warranty, a partial 
 failure may be given in evidence to reduce damages. This goes upon the 
 principle that the plea is in the nature of a cross-action. De Sewhanberg 
 V. Buchanan, 5 C. & P. 343; Reese v. Gordon, 19 Cal. 147; Harrington v. 
 Lee, 33 Verm. 249. In Illinois partial failure is a defence. Schuchmann 
 V. Knoebell, 27 111. 175 ; McHenry v. Yokum, 27 111. 160. 
 
 ' Chitty on Bills, ch. 3, pp. 84, 85 (8th edit. 1833). 
 
 " Ibid. ; Nash v. Brown, cited Chitty on Bills, p. 85, note (c) ; Holliday " 
 V. Atkinson, 5 B. & C. 501 ; Blogg v. Pinkers, 1 Ryan & Mood. 125; Bay- 
 ley on Bills, ch. 12, pp. 502, 503 (5th edit.). See Tate v. Hilbert, 2 Ves. 
 jr. Ill ; S. C. 4 Bro. Ch. 486. 
 
 * Ibid. 
 
 " [But it is no defence to a Note given by A to B, that it was given to 
 release C from an unlawful arrest, since none but the party who suffers the 
 duress can take advantage of it. Robinson v. Gould, 11 Cush. 55. J 
 
 ' [See Awde v. Dixon, 5 Eng. Law & Eq. 512, that if A sign a Note 
 as surety, on condition that B shall also sign it as such, and B refuses to sign 
 it, A is not responsible even to a bona fide holder for value to whom the 
 principal maker passed the Note, without A's knowledge. And see Pres- 
 cott V. Brinsley, 6 Cush. 233. But see Bank of Missouri «. Phillips, 17 
 Mo. 29.] 
 
 ' Chitty on Bills, ch. 2, § 1, p. 21 (8th edit. 1833) ; Id. ch. 3, pp. 83, 84 ; 
 
CHAP, v.] CONSIDERATION, — SUFFICIENCY OF. 219 
 
 ly coincident with the dictates of natural justice, that it prob- 
 ably has a full recognition in the jurisprudence of every 
 civilized country. Certain it is, that it has a most perfect 
 sanction in the Roman law, and in the jurisprudence of all 
 the States of continental Europe.^ 
 
 § 189. In the next place, a Promissory Note will be void, 
 if the consideration is [in whole or in part ^] illegal.^ It 
 may be illegal (as has been already suggested), either be- 
 cause it is against the general principles and doctrines of the 
 Common Law, or because it is specially prohibited or inter- 
 dicted by statute. The former illegally exists, wherever the 
 consideration is founded upoji a transaction against sound 
 morals, public policy,* public rights, or public interests ; as, 
 for example, contracts of any sort made with an alien ene- 
 
 Duncan v. Scott, 1 Camp. 100; Eees v. Marquis of Headfort, 2 Camp. 
 574 ; Grew v. Bevan, 3 Stark. 134 ; Gladstone v. Hadwen, 1 M. & S. 517 ; 
 Noble V. Adams, 7 Taunt. 59 ; Bayley on Bills, ch. 5, § 2, p. 143 (5tli edit. 
 1830) ; Id. ch. 2, § 6, pp. 56, 57 ; Lord Gallway v. Mathew, 10 East, 264 ; 
 Shirreff v. Wilks, 1 East, 48 ; Fleming v. Simpson, 1 Camp. 40, note ; Pitt 
 V. Smith, 3 Camp. 33; Gregory v. Eraser, 3 Camp. 454. 
 
 ' Pothier on Oblig. n. 28 - 33 ; and Pothier, by Evans, Vol. 2, No. 2, pp. 
 19 - 23 ; Id. No. 3, pp. 28, 29 ; Dig. Lib. 4, tit. 14, 1. 7, § 7 ; Id. 1. 10, § 2. 
 
 ^ Drew V. Towle, 7 Foster, 412 ; Deering v. Chapman, 22 Maine, 488. 
 
 = Bayley on Bills, ch. 12, pp. 504-524 (5th edit. 1830); Story on Con- 
 flict of Laws, §§ 243 - 260 ; Pothier on Oblig. n. 43 - 45 ; Pothier, by Ev- 
 ans, Vol. 2, No. 2, p. 19 ; Bell v. Quin, 2 Sandford, 146. 
 
 * [Thus, a Note given by a prisoner to a magistrate for the amount of 
 fines and costs imposed upon him is void, on grounds of public policy. The 
 magistrate should receive nothing but money in discharge of the fine and 
 costs. Kingsbury u. Ellis, 4 Cush. 578.] But in Vermont, a note to the 
 jailer for'fines and costs is valid, the taking of the note is equivalent to so 
 much money, and the jailer becomes the debtor for, the fines and costs. St. 
 Albans Bank v. Dillon, 30 Verm. 122. In Maine, a party too poor to pay 
 fine and costs may give his Note, but if the Note embrace anything beside 
 fine and costs, as board in jail, it is void pro tanto. Bates v. Butler, 46 
 Maine, 387. So, a Note given to a collector of taxes to be discharged from 
 arrest for the tax is good. Kelley v. Noyes, 43 N. H. 209. But a public 
 officer authorized to prosecute bastardy complaints and to get certain secu- 
 rity, has no authority to take a Note to himself without the statute security, 
 and the Note is void. Wheelwright v. Sylvester, 4 Allen, 59. 
 
220 FEOMISSORY NOTES. [CHAP. V. 
 
 my ; contracts in general restraint of trade or marriage ; 
 contracts for tlie perpetration, or concealment,^ or compound- 
 ing of some crime ; contracts offensive to Christian morals 
 and virtue, as for illicet cohabitation ; ^ contracts for the pur- 
 chase of a public office ; contracts for indemnity against an 
 act of known illegality ; contracts in fraud of the rights and 
 interests of third persons ; contracts justly reprehensible for 
 their injurious effects upon the feelings of third persons ; and 
 contracts by way of wager, upon occasions not allowed by the 
 general policy of law, if, indeed, in a just sense mere wagers 
 ought ever to be held legal.^ The latter illegality (that 
 which is created by statute) exists, not only where there is 
 an express proliibition or interdiction of tlie act or con- 
 tract, but also where it is implied from the nature and ob- 
 jects of the statute.* The Roman law has inculcated the 
 
 ' Bowen v. Buck, 28 Verm. 308 ; Clark v. Pomroy, 4 Allen, 534 ; Porter 
 V. Havens, 37 Barb. 343 ; Clubb v. Huston, 18 C. B. N. S. 414. See note 
 to this case. Hert v. Cooper, 41 N. H. 115. 
 
 ° Beaumont v. Reeve, 8 Q. B. 483 ; whether it be for past or future co- 
 habitation. Id. But a Note given to compensate for the injuries of a seduc- 
 tion and in settlement of a suit for the damages, is upon good consideration, 
 although a criminal prosecution is pending and is afterwards withdrawn by 
 the public officer, if the withdrawal of the criminal complaint was no part 
 of the consideration. Smith v. Richards, 29 Conn. 232. Notes given in 
 settlement of bastardy proceedings are good. Cutler v. Collins, 12 Cush. 
 233 ; Nicewanger v. Bevard, 17 Ind. 621. And a Note to induce a preg- 
 nant woman not to sue is good. Harter v. Johnson, 16 Ind. 271 ; Maxwel 
 V. Campbell, 8 Ohio St. 265. A Note given to settle a charge of crim. con. 
 under duress and threats, was held void. McGowan v. Bush, 17 Texas, 195. 
 
 ' Chitty on Bills, ch. 3, pp.- 93-99 (8th edit. 1833) ; Bayley on Bills, ch. 
 1 2, pp. 508 - 51 1 (5th edit. 1 830) ; Story on Conflict of Laws, §§ 24*3 - 295 J ; 
 Hay V. Ay ling, 3 Eng. Law & Eq. 416. 
 
 * Chitty on Bills, ch. 3, pp. 99 - 118 (8th edit. 1833) ; Bayley on Bills, ch- 
 12, pp. 504 - 514 (5th edit. 1830). It hag seemed to me unnecessary to go 
 at large, in this place, into the doctrine of the illegality of consideration, as 
 the elementary works above cited contain a large collection of the cases, al 
 of which, however, turn upon one or more of the principles which are stated 
 in the text. Story on Conflict of Laws, §§ 243 - 260 ; 1 Story on Eq. Jurisp. 
 §§ 296, 298 - 300 ; l*Fonbl. Eq. Jurisp. B. 1, ch. 4, §§ 5 - 7, and notes ; 1 Har- 
 rison's Dig. tit; Contract, §§3-8. Mr. Evans, in his translation of Pothier 
 
CHAP, v.] CONSIDEEATION, — SUFFICIENCY OF. 221 
 
 same general principles in an emphatic manner. " Quod 
 turpi ex causS. promissum est, non valet." ^ Audit is followed 
 out and supported in the French law.^ 
 
 § 190. In the next place, between what parties, and under 
 what circumstances, is tlie consideration of a Promissory 
 Note inquirable into, for the purpose of a defence or a bar to 
 an action brought tliereon ? The general rule is, that the 
 total or partial want or failure of consideration, or the ille- 
 gality of consideration, may be insisted upon as a defence 
 or a bar between any of the immediate or original parties to 
 the conti-act. It may be insisted upon by tlie maker against 
 the payee, and by the payee against his indorsee.^ Thus, for 
 example, it is a good defence or bar to an action between 
 these parties, that the Note is a mere accommodation Bill, 
 
 on Oblig. Vol. 2, No. 1, pp. 1 - 19, has examined this whole subject with 
 much ability. Ungar v. Boas, 1 Harris, 601 ; Lucas v. Waul, 12 Sm. & 
 Mar. 157; Emery v. Estes, 31 Maine, 153; Danforth v. Evans, 16 Verm. 
 538. A Note to induce a woman to malse no defence to a divorce suit is 
 void. Stoutenburg u. Lybrand, 13 Ohio St. 228. A Note to renew a Note 
 for money lent for gambling is void. Cutler v. Welch, 43 N. H. 497; 
 Whiteside v. McGrath, 15 La. An. 401. Otherwise in Boggess v. Lilly, 18 
 Texas, 200 ; and a Note for services and materials in preparation of a lottery 
 is not void in Indiana. Higgins ». Miner, 13 Ind. 346. A note to pay the 
 payee for resigning a public office and for his influence for the maker of the 
 Note is void. Meachamu. Daw, 32 Verm. 721. But a Note in consideration 
 of resigning an office in a corporation is good. Peck v. Kegna, 13 Gray, 
 407. A Note given to induce the withdrawal of a bid for a government 
 contract is void. Kennedy «. Murdick, 5 Harring. 458. A Note to cheat 
 creditors by enabling the payee to seize the maker's property is void. Pow- 
 ell V. Inman, 7 Jones, Law (N. C), 28. A Note by a debtor to a creditor to 
 induce the credilor to sign a composition deed, and for a sum larger than 
 the other creditors receive, is void. Howe v. Litchfield, 3 Allen, 443. 
 
 ' Instit. Lib. 3, tit. 20, § 24. 
 
 ' Pothier on Oblig. n. 43 - 46. 
 
 = Bayley on Bills, ch. 12, pp. 494-523 (5th edit. 1830) ; Chitty on Bills, 
 ch. 3, pp. 78 - 83 (8th edit. 1833) ; 3 Kent, Lect. 44, pp. 80 - 82 (4th edit.) ; 
 Jackson v. Warwick, 7 Term, 121 ; Barber v. Backhouse, Peake, 61 ; Ledg- 
 er V. Ewer, Peake, 216; Darnell v. Williams, 2 Stark. 166; Jones v. Hib- 
 bert, 2 Stark. 304 ; Pike ». Street, 1 Mood. & Malk. 226 ; Lewis v. Cos- 
 grave, 2 Taunt. 2 ; Sumner v. Brady, 1 H. Black. 647 ; Knight v. Hunt, 5 
 Bing. 432 ; Walker v. Perkins, 3 Burr. 1568 ; Clark v. Kicker, 14 N. H. 44. 
 
222 PROMISSORY NOTES. [OHAP. V. 
 
 that the maker is a mere accommodation maker, and the 
 payee an accommodation indorser.^ The same rule will 
 apply to any derivative title under them by any person, who 
 acts merely as their agent, or has given no value for the 
 Note.^ It will also apply to all cases where the party takes 
 the Note, even for value, after it has been dishonored, or is 
 overdue, [or upon an usurious consideration;^] for then he 
 takes it subject to all the equities which properly attach 
 thereto between the antecedent parties.* So, if he has notice, 
 
 ' Bayley on Bills, ch. 10, pp. 420, 421 (5tli edit. 1830) ; Id. ch. 12, p. 495 ; 
 Chitty on Bills, ch. 3, p. 81 (8th edit. 1833) ; Darnell v. Williams, 2 Stark. 
 166 ; Wiffen v. Roberts, 1 Esp. 261 ; Jones v. Hibbert, 2 Stark, 304; Spar- 
 row M. Chisman, 9 B. & C. 241 ; De Launcy v. Mitchill, 1 Stark. 439 ; Al- 
 laire V. Hartshorne, N. J. 665 ; Dowe v. Schutt, 2 Denio, 621. 
 
 ^ Ibid. ; Dennlston v. Bacon, 10 John. 198; Grew v. Burditt, 9 Pick. 265. 
 
 ' Catlin V. Gunter, 1 Kernan, 368 ; Hall v. Earnest, 36 Barb. 585. 
 
 * Chitty on Bills, ch. 3, pp. 92, 93 ; Id. 113, 116 ; Id. ch. 6, pp. 244, 245 
 (8th edit. 1833) ; Bayley on Bills, ch. 5, § 3, pp. 157, 158 ; Id. ch. 12, p. 
 512 (5th edit. 1830); Id. (Ainer. edit. 1836, by Sewall & Phillips), pp. 
 544-548 ; Taylor v. Mather, 3 Term, 83, note; Brown v. Davies, 3 Term, 
 80 ; Cruger v. Armstrong, 3 John. Gas. 5 ; Conroy v. Warren, 3 John. Cas. 
 259; Ayer v. Hutchins, 4 Mass. 370; Thompson v. Hale, 6 Pick. 259; 
 Tucker v. Smith, 4 Greenl. 415 ; Brown v. Turner, 7 Term, 630 ; Boggs v. 
 Lancaster Bank, 7 Watts & Serg. 331. The equities which are here in- 
 tended are not all the equities which may exist between the parties arising 
 from other transactions, but all the equities attaching to the particular Bill 
 in the hands of the holder. Ante, § 178 ; Story on Bills, § 220; Burrough 
 V. Moss, 10 B. & C. 558 ; Whitehead v. Walker, 10 M. & W. 696. But see 
 the cases collected in Bayley on Bills, ch. 12 (Amer. edit. 1836, by Sewall 
 & Pjbillips), pp. 546-552; Baxter v. Little, 6 Met. 7. A Bill, which has 
 been accepted, payable on demand with interest, will not be treated as 
 overdue, unless it has been presented for payment ; for it may have been 
 the intention of the parties that it should be negotiated, and remain out- 
 standing for some time. Barough v. White, 4 B. &. C. 325. [In Ameri- 
 ca a different rule prevails.] Ayer v. Hutchins, 4 Mass. 370; Thompson 
 V. Hale, 6 Pick. 259 ; Bayley on Bills (Amer. edit. 1836, by Sewall & Phil- 
 lips), ch. 12, pp. 546-552; Furniss v. Gilchrist, 1 Sandford, 53; [Carlton 
 V. Bailey, 7 Foster, 230; Carll v. Brown, 2 Mich. 401. Johnson, J. said: 
 " In England it has been held, and suuh is the general current of authori- 
 ties, that a negotiable Note, payable on demand, does not become overdue 
 by mere lapse of time, so as to let in the maker to an equitable defence at 
 the suit of the indorsee. Barrough v. White, 4 B. & C. 325 ; S. C. 10 E. 
 
CHAP, v.] CONSIDERATION, — SUFFICIENCY OF. 223 
 
 at the time when he purchases it, that the Note is void in the 
 hands of the party from whom he purchases it, either from 
 
 C. L. E. 345. Something more than lapse of time must be brought to the 
 knowledge of the indorser to charge him with the equities of the original par- 
 ties. The obvious policy of this rule is to make this species of paper at all 
 times a safe circulating medium, and placing it upon the same footing of other 
 negotiable paper before maturity. In the case of Brooks et. al. v. Mitchell, 
 9 M. & W. 15, it was held that a Note, payable on demand, with interest, 
 made in 1824, and indorsed to the defendant in 1838, and upon which no 
 interest had been paid for three years immediately preceding the indorse- 
 ment, was not subject to an equitable defence as between the original par- 
 ties. It was urged in that case that the nonpayment of interest for three 
 years was sufficient to put the indorsee upon inquiry. But Parke, B., ex- ^ 
 pressing the opinion of the Court, said : ' I cannot assent to the arguments 
 urged in behalf of the plaintiffs. If a Promissory Note, payable on de- 
 mand, is, after a certain time, to be treated as overdue, although payment 
 has not been demanded, it is no longer a negotiable instrument; but a . 
 Promissory Note, payable on demand, is intended to be a continuing se- 
 curity.' In this country the rule is somewhat modified, and the general 
 doctrine is, that a Promissory Note, payable on demand, unless indorsed 
 within a reasonable time, is considered overdue and dishonored. Ranger 
 V. Gary, 1 Met. 369.; Thurston v. McKown, 6 Mass. 428; Field v. Nicker- 
 son, 13 Mass. 131; Nevins v. Townsend, 6 Conn. 5; Furman v. Haskin, 
 2 Caines, 368; Sandford v. Mickles and Forman, 4 J. E. 224; Losee v. 
 Dunkin, 7 J. E. 70 ; Sice v. Cunningham, 1 Cow. 410. And what that 
 reasonable time is, is a question for the determination of the Court upon 
 the facts of each particular case. Thus, in the case of Furman v. Haskin, ' 
 above cited, the Supreme Court of New York held that a Note, payable 
 on demand, indorsed- eighteen months after date, should be deemed to be 
 overdue and dishonored, for the purpose of allowing the maker to set up 
 an equitable defence. After that the same Court held, in the case of 
 Sandford v. Mickles and Forman, above cited, that a Note, payable on de- 
 mand, indorsed five months after date, was not allowed to be impeached 
 by the maker, at the suit of an indorser. And again, the same Court held, 
 in the case of Losee v. Dunkin, above cited, that the maker of a similar 
 Note was allowed to show payment, and thereby defeat the action, at the 
 suit of a bonajide indorser, two and a half months after date. The judge, 
 in delivering the opinion of the Court in this case, very consistently re- 
 marks, that ' there is no precise time when a Note of this kind is deemed 
 to be dishonored.' Consequently, no legal measure of time, independent 
 of circumstances, can be gathered from the authorities of that State. In 
 Massachusetts nearly the same uncertainty exists. Two months and a half 
 is the shortest time that the Courts of that State have allowed such a de- 
 
224 PEOMISSOBY NOTES. [CHAP. V. 
 
 fraudji or want, or failure, or illegality of consideration, he 
 will take^it subject to the same equities as that party .^ There 
 is one peculiarity in cases of illegality of consideration, in 
 which it is distinguishable from the want or failure of con- 
 sideration. In the latter, if there be a partial want or fail- 
 ure of consideration, it avoids the Note only^ro tanio ; but, 
 where the consideration is illegal in part, there it avoids 
 the Note in toto.^ The reason of this distinction seems to be 
 founded, partly, at least, upon the ground of public policy, 
 and partly upon the technical notion, that the security is 
 entire, and cannot be appprtioned. Probably a similar 
 ground would be assumed in. cases of fraud, at least whei'e 
 the ingredients were grossly offensive, or where the transac- 
 tions were so connected as to be incapable of a clear and 
 definite separation. There is much force in the suggestion, 
 which has sometimes been made, that, where the parties 
 have woven a web of fraud, it is no part of the duty of courts 
 of justice to unravel the threads, so as to separate the -sound 
 from the unsound. 
 
 § 191. On the other hand, the partial or total failure of 
 
 fence to be set up. Stevens v. Bruce, 21 Pick. 193. On the other hand, 
 they refused to allow a Note to be impeached, indorsed thirty days from 
 date. Kanger v. Gary, 1 Met. 369. In this case the Court refused to 
 grant a new trial, on a charge of the Court below to the jury, ' that such a 
 Note could not be considered dishonored in thirty days from date ' ; and I 
 liave been unable to find any case where it has been held to be overdue 
 and dishonored short of that time. So that, whether we adopt the one rule 
 or the other, the result to this suit must be the same."] 
 
 ' Fisher v. Leland, 4 Cush. 456. 
 
 ' Ibid ; Bayley on Bills, ch. 12, p. 512 (5th edit. 1830) ; Amory v. Mery- 
 weather, 2 B. & C. 573 ; Evans v. Kymer, 1 B. & Ad. 528 ; Kasson v. 
 Smith, 8 Wend. 437 ; Skilding v. Warren, 15 John. 270 ; Harrisbarg Bank 
 V. Meyer, 6 S. & K. 537; Chitty on Bills, ch. 3, pp. 92, 93 (8th edit. 
 1833) ; Id. pp. 115, 116 ; Steers v. Lashley, 6 Term, 61. 
 
 ' Eobinson v. Bland, 2 Burr. 1077 ; Bayley on Bills, ch. 12, p. 514 (5th 
 edit. 1830) ; Scott v. Gillmore, 3 Taunt. 226 ; Clark v. Bicker, 14 N. H. 
 44 ; Perkins v. Cummings, 2 Gray, 258 ; Carlton v. Bailey, 7 Foster, 230 ; 
 Deering v. Chapman, 22 Maine, 488 ; Coburn v. Odell, 10 Fostfer, 540. 
 But see Chitty on Bills, ch. 3, p. 114, and note (8th edit. 1833). 
 
CHAP, v.] CONSIDERATION, — SUFFICIENCY OF. 225 
 
 consideration,^ or even fraud between tlie antecedent parties, 
 will be no defence or bar to the title of a hona fide holder of 
 a Note for a valuable consideration, at or before it becomes 
 due, without notice of any infirmity therein.^ The same 
 rule will apply, although the present holder has such notice, 
 if he yet derives a title to the Note from a prior bona fide 
 holder for valiie.^ This doctrine, in both its parts, is indis- 
 pensable to the security and circulation of negotiable instru- 
 ments ; and it is founded in the most comprehensive and 
 liberal principles of public policy. No third person could 
 otherwise safely purchase any negotiable instrument ; for his 
 title might be completely overturned by some latent defect of 
 this sort, of which he could not have any adequate means of 
 knowledge, or institute any inquiries, which might not end in 
 doubtful results, or embarrassing difficulties. Hence it is, 
 that a bona fide liolder for value, without notice, is entitled 
 to recover upon any negotiable instrument, which he has 
 received before it has become due, notwithstanding any de- 
 fect or infirmity in the title of the person from whom he 
 derived it ; as, for example, even though such person may 
 have acquired it by fraud, or even by theft,* or by robbery.^ 
 [But even such bona fide holder can recover only the amount 
 
 ' McCaskill «. Ballard, 8 Jlich. 470 ; Homes u. Smyth, 16 Maine, 177. 
 
 2 Chitty on Bills, ch. 3, pp. 78, 79 (8th edit. 1833) ; Bayley on Bills, eh. 
 12, pp. 499, 500 (5th edit. 1830); Collins v. Martin, 1 Bos. & Pull. 651; 
 Bramah v. Roberts, 1 Bing. N. C. 469 ; Story on Bills, g§ 14, 189, 191, 
 193, 417 ; Robinson v. Reynolds, 2 A. & El. (N. S.) 196, 211. 
 
 ' Ibid. ; Haly v. Lane, 2 Atk. 181 ; Lickbarrow v. Mason, 2 Term, 71 • 
 Chalmers v. Lanion, 1 Camp. 383 ; Robinson v. Reynolds, 2 A. & El. (N. 
 S.) 196, 211. 
 
 * See Berry v. Alderman, 22 Eng. Law & Eq. 484 ; Masters v. Ibbett- 
 son, 18 Law Journal, 348 ; Middleton u. Barnard, Id. 433. 
 
 ' 3 Kent, Lect. 44, pp. 79, 80 (5th edit.) ; Bayley on Bills, eh. 12, pp. 
 524-528 (5th edit. 1830); Miller u. Race, 1 Burr. 452; Grant w. Vaughan, 
 3 Burr. 1516 ; Peacock v. Rhodes, 2 Doug. 633 ; Lowndes v. Anderson, 13 
 East, 130 ; Solomons v. Bank of England, 13 East, 135, note (J) ; Thurs- 
 ton V. McKown, 6 Mass. 428 ; Wheeler v. Guild, 20 Pick. 545 ; Fletcher 
 V. Gushee, 32 Maine, 587. 
 15 
 
226 PROMISSORY NOTES. [CHAP. V. 
 
 he has actually advanced.^ So, if it be improperly put in 
 circulation, and indorsed to the plaintiff as collateral security 
 merely for a debt due him from the indorsee, such indorsee 
 can recover only the amount of the debt for which the Note 
 is pledged.^ ] 
 
 § 192. The same doctrine will generally apply to all cases 
 of a bona fide holder for value, without notice before it be- 
 comes due, where the original Note, or the indorsement 
 thereof, is founded on an illegal consideration ; and this, 
 upon the same general ground of public policy, without any 
 distinction between a case 'of illegality, founded in moral 
 crime or turpitude, which is malum in se, and a case founded 
 in the positive prohibition of a statute, which is malvm pro- 
 hibitum ; for, in each case the innocent holder is, or may be, 
 otherwise exposed to the most ruinous consequences, and the 
 circulation of negotiable instruments would be materially 
 obstructed, if not totally stopped.^ The only exception is, 
 where the statute, creating the prohibition, has, at the same 
 time, either expressly, or by necessary implication, made the 
 instrument absolutely void in the hands of every holder, 
 whether he has such notice or not. There are but few cases 
 in which any statute has created a positive nullity of such 
 instruments, either in England or America. The most im- 
 portant seem to be the statutes against gaming, and the stat- 
 
 ' Allaire v. Hartshorne, 1 N. Jersey, 665 ; Holemau v. Hobson, 8 Humph. 
 Tenn. 127; Wiffen v. Roberts, 1 Esp. 261; Jones v. Hibbert, 2 Stark. 
 204, 207 ; Edwards v. Jones, 7 C. & P. 633; S. C. 2 M. & W. 414 ; Bob- 
 .ins V. Maidstone, 4 A. & El. (N. S.) 811 ; Williams v. Smith, 2 Hill, N. Y. 
 301 ; Valetteu. Mason, 1 Smith (Ind.), 89. And see Bethuneu. McCrary, 
 8 Geo. 114. 
 
 ' Stoddard v. Kimball, 6 Gush. 469 ; Ghicopee Bank v. Chapin, 8 Met. 
 40. 
 
 ' Ghitty on Bills, ch. .3, pp. 92, 93 (8th edit. 1833); Id. pp. 115,116; 
 Lowes V. Mazzaredo, 1 Stark. 385 ; Wyat v. Bulmer, 2 Esp. 538 ; 3 Kent, 
 Lect. 44, pp. 79,80, and note (4th edit.); Bayley on Bills, ch. 12, pp. 
 612-516; Gould v. Armstrong, 2 Hall, R 266; Smedbergu. Simpson, 2 
 Sandford, 85 ; Williams v. Cheney, 3 Gray, 215 ; Cazet v. Field, 9 Gray, 
 329. 
 
CHAP, v.] CONSIDERATION, — SUFFICIENCY OF. 227 
 
 Tites against usury.^ And the policy of these enactments 
 has been brought into so much doubt in our day, that in 
 England the rule, as to usury, and gaming, and some other 
 cases, has been changed by recent statutes ; and a total 
 repeal,^ or partial relaxation of it, has found its way into the 
 legislation of America.^ [Under a statute which declared 
 that all payments and compensations for liquors sold in viola- 
 
 ' Bowyer v. Bampton, 2 Str. 1155; Peacock v. Khodes, 2 Doug. 636 ; 
 Lowe V. Walker, 2 Doug. 736 ; Aekland v. Pearce, 2 Camp. 599 ; 3 Kent, 
 Lect. 44, pp. 79, 80 (4th edit.) ; Bayley on Bills, oh. 12, pp. 512- 519 (5th 
 edit. 1830); Preston v. Jackson, 2 Stark. 237; Shillito v. Theed, 7 Bing. 
 405; Henderson v. Benson, 8 Price, 281; Chitty on Bills, ch. 3, pp. 115, 
 116 (8th edit. 1833). In Bayley on Bills, ch. 12, p. 517 (5th edit. 1830), 
 it is said : " The objection of illegality of consideration is, in some cases, 
 confined to those persons who were parties or privy to such illegality, and 
 those to whom they have passed the Bill or Note without value ; in other 
 cases, it is extended even to holders bona fide, and for value. The latter 
 cases are, where the consideration is, either wholly or in part, signing a 
 bankrupt's certificate ; money lost by gaming as aforesaid, or by betting on 
 the sides of persons so gaming ; money knowingly lent for such gaming or 
 betting; money lent, at the time and place of such play, to any person 
 either then gaming or betting, or who shall, during the play, play or bet ; 
 money lent on an usurious contract ; the ransom, or money knowingly lent 
 to enable the owner to obtain the ransom of the ship or vessel of any Brit- 
 ish subject, or any merchandise or goods on board the same." On the 
 other hand, Mr. Chancellor Kent, in his learned Commentaries, restricts 
 the cases to those under the statutes against gaming and usury, and says 
 that there are no others in which the instrument is void in the hands of an 
 innocent indorsee for value. 3 Kent, Lect. 44, pp. 79, 80 (5th edit.). 
 The former probably exhibits the present state of the English law most 
 accurately. See Chitty on Bills, ch. 3, pp. 115, 116 (8th edit. 1833). And 
 it seems, that, wherever the defence of usury is set up, since the statute of 
 58 Geo. 3, ch. 93, the plaintiff is compellable to prove that he gave value 
 for the Bill, otherwise he is not deemed to be within the protection of the 
 statute. Wyatt v. Campbell, 1 Mood. & Malk. 80; Bayley on Bills, ch. 12, 
 p. 521 (5th edit. 1830). 
 
 ' See Haight v. Joyce, 2 Cal. 64. 
 
 ' 3 Kent, Lect. 44, pp. 79, 80 (5th edit.) ; Stat. 58 Geo. 3, ch. 93 ; Stat. 
 5 & 6 Will. 4, ch. 41; Bayley on Bills, ch. 12, pp. 517, 521 (5th edit. 
 1830) ; Smedberg v. Simpson, 2 Sandford, 85. See also Bayley on Bills, 
 oh. 12, pp. 557-580 (Amer. edit. 1836, by Sewall & Phillips), where the 
 principal American cases are collected in the notes. 
 
228 PROMISSORY NOTES. [CHAP. V. 
 
 tion of law should be considered as received " in violation of 
 law, without consideration, and against law, equity, and 
 good conscience," it has been held, that a Note given in pay- 
 ment for liquors so sold, though void in the hands of the 
 payee ,1 was not so in the hands of a bona fide holder for a 
 good consideration before maturity.^] 
 
 § 193. In respect to cases of illegality, also, this further 
 distinction may become important. The illegality may not 
 only occur between the original parties to the Note ; but, 
 where the Note was originally given for a legal and valid con- 
 sideration, there may be illegality in the subsequent indorse- 
 ment or other transfer of it. In the latter case, the illegality 
 will displace the title of the parties thereto, but not the title 
 of any bona fide holder for value under them, who has no no- 
 tice of the illegality, and is not bound to deduce his title to 
 the Note through such parties, or to state or prove their sig- 
 natures.'' As, for example, if the first indorsement be in 
 blank, and the second indorsement for an illegal considera- 
 tion, a subsequent bona fide holder may claim title as indor- 
 see of the first indorser, and thereby escape from the neces- 
 sity of establishing his title by devolution through the second 
 indorsement. In such a case he will be completely protected.* 
 But, if the holder is compellable to make his title through 
 
 ' Perkins u. Cumpiings, 2 "Gray, 258; Webster v. Sanborn, 47 Maine, 
 471; Hubbellu. Flint, 13 Gray, 277; Kidder v. Blake, 45 N. H. 530; 
 Baker v. Collins, 9 Allen, 253. But if the Note is given for a sale of liquors 
 out of the State for illegal re-sale in the State, the defendant must show by 
 the strictest proof that the plaintiff knew the purpose. Kellogg v. Moore, 
 2 Allen, 266 ; Savage v. Mallory, 4 Allen, 492. 
 
 ^ Gazet V. Field, 9 Gray, 329; Norris v. Langley, 19 N. H. 423; Brig- 
 ham V. Potter, 14 Gray, 522 ; Taylor v. Page, 6 Allen, 86 ; Cobb v. Doyle, 
 7 K. I. 550. The repeal of the statute that prohibits the sale of liquors 
 does not legalize the Note given for a sale before the repeal. Holden v. 
 Cosgrove, 12 Gray, 216. 
 
 " Bayley on Bills, ch. 12, pp. 522, 523 (5th edit. 1830) ; Chitty on Bills, 
 ch. 3, pp. 93, 109, 116 (8th edit. 1833). 
 
 * Ibid.; Parr v. Eliason, 1 East, 92; Daniel v. Cartony, 1 Esp. 274; 
 Munn V. Commission Company, 15 John. 44. 
 
CHAP, v.] CONSIDERATION, — SUFFICIENCY OF. 229 
 
 the parties to the illegal consideration, and the transfer is as 
 between them declared absolutely void by statute, it seems 
 that the holder is not entitled to recover upon the Note 
 against any of the antecedent parties.^ But, as between the 
 holder and any subsequent parties, his title will be good, if it 
 is itself free from any illegality.^ 
 
 § 194. Neither is it any defence or bar that the Note was 
 known to the holder to be an accommodation Note between 
 the other parties, if he takes it for value, bona fide, before 
 it has become due.^ The reason is, that the very object of 
 every accommodation Note is, to enable the parties thereto, by 
 a sale or other negotiation thereof, to obtain a free credit and 
 circulation thereof; and this object would be wholly frus- 
 trated, unless the purchaser, or other holder for value, could 
 hold such a Note by as firm and valid a title as if it were 
 
 ' Baylej- on Bills, ch. 12, pp. 522, 523 (5tli edit. 1830); Chitty on Bills, 
 ch. 3, pp. 93, 109, 110 (8tli edit. 1833) ; Lowes v. Mazzaredo, 1 Stark. 385 ; 
 Ackland u. Pearce, 2 Camp. 599; Chapman o. Black, 2 B. & Al. 590; 
 Henderson v. Benson, 8 Price, 288; Gaither v. Farmers & Mechanics' 
 Bank of Georgetown, 1 Peters, 43 ; Lloyd v. Scott, 4 Peters, 205, 228. 
 The authorities on this point are in conflict with each other. Parr v. Elia- 
 son, 1 East, 92, and Daniel v. Cartony, 1 Esp. 274, affirm the right. But 
 the text is supposed to contain the better established doctrine. The true 
 distinction seems to be, between cases where the indorsement is merely 
 void, and cases where it is voidable. In the former case, it is obvious that 
 no title can be deduced through a void title ; in the latter, a title may be, 
 at least against all parties except the person who is entitled to avoid it. 
 See Knights v. Putnam, 3 Pick. 184 (2d edit.), where many of the authori- 
 ties are collected. Prouty v. Roberts, 6 Cush. 19 ; Ungar v. Boas, 13 
 Penn. St. 601 ; Lucas v. Waul, 12 Sm. & Mar. 157. See also Nichols v. 
 Pearson, 7 Peters, 103 ; Reading v. Weston, 7 Conn. 409 ; Bush v. Living- 
 ston, 2 Cain. Cas. in Err. 66 ; Braman v. Hess, 13 John, 52 ; Munn v. Com- 
 mission Company, 15 John. 44. 
 
 2 Chitty on Bills, ch. 3, pp. 109, 110 (8th edit. 1833) ; Bayley on Bills, 
 ch. 12, pp. 523, 524 (5th edit. 1830) ; Edwards v. Dick, 4 B. & Al. 
 212 ; Bowyer v. Bampton, 2 Str. 1155; O'Keefe v. Dunn, 6 Taunt. 315. 
 
 = Ibid.; Charles v. Marsden, 1 Taunt. 224 ; Smith v. Knox, 3 Esp. 46; 
 Scott V. Liflford, 1 Camp. 246 ; Bank of Ireland v. Beresford, 6 Dow, 237 ; 
 Grandinu. Leroy, 2 Paige, 509 ; Powell u. Waters, 17 John. 176 ; Montross 
 V. Clark, 2 Sandford, 1 15. 
 
230 PROMISSORY NOTES. [CHAP. V. 
 
 founded in a real business transaction. The mere fact, that 
 an accommodation Note has been indorsed even after it be- 
 came due, does not of itself, without some other equity in the 
 maker, defeat the rights of tlie holder .^ In short, the parties 
 to every accommodation Note hold themselves out to the 
 public, by their signatures, to be absolutely bound to every 
 person who shall take the same for value, to the same extent 
 as if that value were personally advanced to them, or on 
 their account, and at their request.^ The French law 
 seems to inculcate an equally broad and comprehensive doc- 
 trine,^ 
 
 § 195. Every person is, in the sense of the rule, treated as 
 a bona fide holder for value, not only when he has advanced 
 money or other value for it, but when he has received it in 
 payment of a precedent debt, or when he has a lien on it, or 
 has taken it as collateral security for a precedent debt,* or for 
 future as well as past advances.^ Thus, a banker, who is 
 
 ' Sturtevajit v. Forde,^4 Scott, N. R. 668; Thompson u. Shepherd, 12 
 Met. 311. 
 
 ' See Sweetser v. French, 2 Cush. 310. 
 
 ' Pothier, De Change, n. 118-121 ; Code de Comm. art. 117 ; Pardessus, 
 Droit Comm. Tom. 2, art. 378; Story on Bills, § 191. 
 
 * [If a Note is transferred merely as collateral security for a precedent 
 debt, and without any new consideration, such as a further advancement, 
 extension of time on the old debt, change of securities for the same, or 
 without the incurrence of any new responsibility by the creditor, or parting 
 with any right by him, and without subjecting him to any loss or delay, 
 but leaving the old debt in precisely the same condition as before the col- 
 lateral is transferred, the holder is not a holder for value, so as to prevent 
 the maker from setting up the equities between himself and the payee. 
 Roxborough «. Messick, 6 Ohio St. 448, 453. See also Bramhall v. Beckett, 
 31 Maine, 205; Jenness v. Bean, 10 N. H. 266; Prentice v. Zane,2 
 Gratt. 262; Kirkpatrick u. Muirhead, 4 Harris, 117; Keddick 17. Jones, 6 
 Ired. 109. But if taking a Note on time as collateral security for a pre- 
 existing debt itself amounts to a contract by the creditor to delay the col- 
 lection of the old debt until the collateral matures, as is sometimes held, 
 then such forbearance may be a sufficient consideration for the transfer, so 
 as to shut out inquiry as to any equities.] 
 
 » Chitty on Bills, ch. 3, p. 85 (8th edit. 1833) ; Heywood v. Watson, 4 
 Bing. 496 ; Bayley on Bills, ch. 12, pp. 500, 501 (5th edit. 1830) ; Bosan- 
 
CHAP, v.] CONSIDERATION, — SUFFICIENCY OF. 231 
 
 accustomed to make advances or acceptances, from time to 
 
 time, for his customers, and has in his possession negotiable 
 
 quet V. Dudman, 1 Stark. 1 ; Ex parte Bloxham, 8 Ves. 531 ; Townsley v. 
 Sumrall, 2 Peters, 170; Swift v. Tyson, 16 Peters, 1 ; Bachellor v. Priest, 
 12 Pick. 399; Norton u. Waite, 20 Maine, 175; Homes u. Smyth, 16 Maine, 
 177; ante, § 186 ; Barnett v. Brandao, 6 M. & Gr. 630, 670. Allaire v. 
 Hartshorne, 1 Zabriskie, N. J. 665 ; Russell v. Hadduck, 3 Gilman, 111. 233 ; 
 Blanchard v. Stevens, 3 Cash. 162; Carlisle </. Wishart, 11 Ohio, 172; 
 Williams v. Little, 11 N. H. 66 ; Eeddick v. Jones, 6 Ired. 107 ; Valette v. 
 Mason, 1 Smith's Ind. 89 ; Bond v. Central Bank, 2 Geo. 106. The earli- , 
 est cases in the New York Keports (Warren v. Lynch, 5 John. 239 ; Bay 
 V. Coddington, 5 John. Ch. 54) are coincident with the doctrine stated in 
 the text. Some cases afterwards brought the doctrine into doubt, and in 
 which it was decided, that taking a Bill in payment of a precedent debt did 
 not entitle the creditor to be deemed abonajide purchaser within the sense 
 of the rule. See Bay v. Coddington, 20 John. 637 ; Wardell v. Howell, 9 
 Wend. 170; Bristol v. Sprague, 8 Wend. 423; Rosa v. Brotherson, 10 
 Wend. 85; Ontario Bank v. Worthiugton, 12 Wend. 593; Payne v. Cut- 
 ler, 13 Wend. 606. See Bertrand v. Barkman, 8 Eng. 150; Holbrook v. 
 Mix, 1 E. D. Smith, 159. The later cases, however, seem gradually reced- 
 ing from these decisions, and inclining to uphold the old rule. See Bank 
 of Salina v. Babcock, 21 Wend. 499 ; Bank of Sandusky v. Scoville, 24 
 Wend. 115 ; Williams v. Smith, 2 Hill, 301. Seneca Co. Bank v. Neass, 5 
 Denio, 330; Hunt v. Fish, 4 Barb. 324; Montross v. Clark, 2 Sandford, 
 115 ; White v. Springfield Bank, 3 Id. 222; Youngs v. Lee, 18 Barb. 192. 
 The leading authorities were cited and commented on in Swift v. Tyson, 16 
 Peters, 15-22. On that occasion the Court said: "There is no doubt,' 
 that a hona fide holder of a negotiable instrument for a valuable considera- 
 tion, without any notice of facts which impeach its validity, as between the 
 antecedent parties, if he takes under an indorsement made before the same 
 becomes due, holds the title unaffected by these facts, and may recover 
 thereon, although, as between the antecedent parties, the transaction may 
 be without any legal validity. This is a doctrine so long and so well estab- 
 lished, and so essential to the security of negotiable paper, that it is laid up 
 among the fundamentals of the law, and requires no authority or reasoning 
 to be now brought in its support. As little doubt is there, that the holder 
 of any negotiable paper, before it is due, is not bound to prove that he is a 
 hona fide holder for a valuable consideration, without notice ; for the law 
 will presume that, in the absence of all rebutting proofs, and therefore it is 
 incumbent upon the defendant to establish, by way of defence, satisfactory 
 proofs of the contrary, and thus to overcome the prima facie title of the 
 plaintiff. In the present case, the plaintiff is a hona fide holder without 
 notice for what the law deems a good and valid consideration, that is, for 
 a pre-existing debt ; and the only real question in the cause is, whether un- 
 
232 PKOMISSOKY NOTES. [CHAP. V. 
 
 securities belonging to them, for collection, is deemed to be 
 a holder for value, to the extent of such advances and ac- 
 
 der the circumstances of the present case such a pre-existing debt consti- 
 tutes a valuable consideration in the sense of the general rule applicable to 
 negotiable instruments. We say, under the circumstances of the present 
 case, for, the acceptance having been made in New York, the argument on 
 behalf of the defendant is, that the contract is to be treated as a New York 
 contract, and therefore to be governed by the laws of New York, as ex- 
 pounded by its Courts, as well upon general principles, as by the express 
 provisions of the thirty-fourth section of the Judiciary Act of 1789, ch. 20. 
 And then it is further contended, that, by the law of New York, as thus 
 expounded by its Courts, a pre-existing debt does not constitute, in the sense 
 of the general rule, a valuable consideration applicable to negotiable instru- 
 ments. In the first place, then, let us examine into the decisions of the Courts 
 of New York upon this subject. In the earliest case, Warren v. Lynch, 5 
 John. 239, the Supreme Court of New York appear to have held, that 
 a pre-existing debt was a sufficient consideration to entitle a bona Jide 
 holder without notice to recover the amount of a Note indorsed to him, 
 which might not, as between the orignal parties, be valid. The same doc- 
 trine was affirmed by Mr. Chancellor Kent, in Bay v. Coddington, 5 John. 
 Ch. 54. Upon that occasion he said, that negotiable paper can be assigned 
 or transferred by an agent or factor, or by any other person, fraudulently, so 
 as to bind the true owner as against the holder, provided it be taken in the 
 usual course of trade, and for a fair and valuable consideration, without no- 
 tice of the fraud. But he added, that the holders in that case were not 
 entitled to the benefit of the rule, because it was not negotiated to them in 
 the usual course of business or trade, nor in payment of any antecedent 
 and existing debt, nor for cash, or property advanced, debt created, or 
 responsibility incurred, on the strength and credit of the Notes; thus 
 directly affirming that a pre-existing debt was a fair and valuable consid- 
 eration within the protection of the general rule, and he has since affirmed 
 the same doctrine, upon a full review of it, in his Commentaries (3 Kent, 
 p. 81, 5th edit.). The decision in the case of Bay v. Coddington was 
 afterwards affirmed in the Court of Errors, 20 John. 637, and the general 
 reasoning of the Chancellor was fully sustained. There were, indeed, pecu- 
 liar circumstances in that case, which the Court seem to have considered 
 as entitling it to be treated as an exception to the general rule, upon the 
 ground, either because the receipt of the Notes was under suspicious cir- 
 cumstances, the transfer having been made after the known insolvency of 
 the indorser, or because the holder had received it as a mere security for 
 contingent responsibilities, with which the holders had not then become 
 charged. There was, however, a considerable diversity of opinion among 
 the members of the Court upon that occasion, several of them holding that 
 
CHAP, v.] CONSIDEEATION, — SUFFICIENCY OF. 233 
 
 ceptances.^ In every such case he is deemed to have a lien 
 on such securities for the balances due to him from time to 
 
 the decree ought to be reversed, others affirming that a pre-existing debt 
 was a valuable consideration sufficient to protect the holders, and others 
 again insisting that a pre-existing debt was not sufficient. From that 
 period, however, for a series of years, it seems to have been held by the 
 Supreme Court of the State, that a pre-existing debt was not a sufficient 
 consideration to shut out the equities of the original parties in favor of the 
 holders. But no case to that effect has ever been decided in the Court of 
 Errors. The cases cited at the bar, and especially Rosa v. Brotherson, 10 
 Wend. 85; The Ontario Bank v. Worthington, 12 Wend. 593; and 
 Payne v. Cutler, 13 Wend. 605, are directly in point. But the more 
 recent cases of The Bank of Salina v. Babcock, 21 Wend. 499, and The 
 Bank of Sandusky v. Scoville, 24 Wend. 115, have greatly shaken, if they 
 have not entirely overthrown, those decisions, and seem to have brought 
 back the doctrine to that promulgated in the earliest cases. So that, to say 
 the least of it, it admits of serious doubt whether any doctrine upon this 
 question can at the present time be treated as finally established ; and it is 
 certain that the Court of Errors have not pronounced any positive opinion 
 upon it." And again : " It becomes necessary for us, therefore, upon the 
 present occasion, to express our own opinion of the true result of the com- 
 mercial Law upon the question now before us. And we have no hesitation 
 in saying that a pre-existing debt does constitute a valuable consideration, 
 in the sense of the general rule already stated, as applicable to negotiable 
 instruments. Assuming it to be true (which, however, may well admit of 
 some doubt, from the generality of the language) that the holder of a nego- 
 tiable instrument is unaffected with the equities between the antecedent 
 parties, of which he has no notice, only where he receives it, in the usual 
 course of trade and business, for a valuable consideration, before it becomes 
 due ; we are prepared to say, that receiving it in payment of, or as security 
 for, a pre-existing debt, is according to the known usual course of trade and 
 business. And why, upon principle, should not a pre-existing debt be 
 deemed such a valuable consideration ? It is for the benefit and conveni- 
 ence of the commercial world to give as wide an extent as practicable to 
 the credit and circulation of negotiable paper, that it may pass not only as 
 security for new purchases and advances, made upon the transfer thereof, 
 but also in payment of, and as security for, pre-existing debts. The credi- 
 tor is thereby enabled to realize, or to secure his debt, and thus may safely 
 give a prolonged credit, or forbear from taking any legal steps to enforce 
 his rights. The debtor also has the advantage of making his negotiable 
 
 ^ Bosanquet d. Dudman, 1 Stark. 1 ; Ex parte Bloxham, 8 Ves. 531 ; 
 Spering's Appeal, 10 Barr, 235. 
 
234 PKOMISSOEY NOTES. [CHAP. V. 
 
 time, as well as for such acceptances, by the implied consent 
 
 securities of equivalent value to cash. But establish the opposite conclu- 
 sion, that negotiable paper cannot be applied in payment of, or as security 
 for, pre-existing debts, without letting in all the equities between the origi- 
 nal and antecedent parties, and the value and circulation of such securities 
 must be essentially diminished, and the debtor driven to the embarrassment 
 of making a sale thereof, often at a-ruinous discount, to some third person, 
 and then by circuity to apply the proceeds to the payment of his debts. 
 What, indeed, upon such a doctrine, would become of that large class of 
 cases, where new Notes are given by the same or by other parties, by way 
 of renewal or security to banks, in lieu of old securities discounted by 
 them, which have arrived at maturity ? Probably more than one half of 
 all bank transactions in our country, as well as those of other countries, 
 are of this nature. The doctrine would strike a fatal blow at all discounte 
 of negotiable securities for pre-existing debts. This question has been sev- 
 eral times before this Court, and it has been uniformly held, that it makes 
 no difference whatsoever, as to the rights of the holder, whether the debt 
 for which the negotiable instrument is transferred to him is a pre-existing 
 debt, or is contracted at the time of the transfer. In each case he equally 
 gives credit to the instrument. The cases of Coolidge v. Payson, 2 Wheaton, 
 66, 70, 73, and Townsley v. Sumrall, 2 Peters, 170, 182, are directly in 
 point. In England the same doctrine has been uniformly acted upon. As 
 long qgo as the case of Pillans and Kose v. Mierop and Hopkins, 3 Burr. 
 1664, the very point was made, and the objection was overruled. That, 
 indeed, was a case of far more stringency than the one now before us ; for 
 the Bill of Exchange, there drawn in discharge of a pre-existing debt, was 
 held to bind the party as acceptor, upon a mere promise made by him to 
 accept before the Bill was actually drawn. Upon that occasion. Lord 
 Mansfield, likening tlie case to that of a letter of credit, said, that a letter of 
 credit may be given for money already advanced, as well as for money to 
 be advanced in future ; and the whole Court held the plaintiff entitled to 
 recover. From that period downward there is not a single case to be 
 found in England in which it has ever been held. by the Court that a pre- 
 existing debt was not a valuable consideration, sufficient to protect the 
 holder within the meaning of the general rule, although incidental dicta 
 have been sometimes relied on to establish the contrary, such as the dictum 
 of Lord Chief Justice Abbott in Smith v. De Witts, 6 Dowl. & Kyi. 120, 
 and De la Chaumette v. The Bank of England, 9 B. & C. 209, where, how- 
 ever, the decision turned upon very different considerations. Mr. Justice 
 Bayley, in his valuable work on Bills of Exchange and Promissory Notes, 
 lays down the rule in the most general terms. ' The want of considera- 
 tion,' says he, ' in toto or in part, cannot be insisted on, if the plaintiff or 
 any intermediate party between him and the defendant took the Bill or 
 Note bona fide, and upon a valid consideration.' Bayley on Bills, pp. 499, 
 
CHAP, v.] CONSIDERATION, — SUFFICIENCY OF. 235 
 
 or agreement of his customers, resiilting from the usage or 
 course of business.^ 
 
 600 (5th London edition, 1830). It is observable, that he here uses the 
 ■words ' valid consideration,' obviously intending to make the distinction, 
 that it is not intended to apply solely to cases where a present consideration 
 for advances of money on goods or otherwise takes place at the time of the 
 transfer and upon the credit thereof. And in this he is fully borne out by 
 the authorities. They go further and establish, that a transfer as security 
 for past and even for future responsibilities, will for this purpose be a suf- 
 ficient, valid, and valuable consideration. Thus, in the case of Bosanquet 
 V. Dudman, 1 Stark. 1, it was held by Lord EUenborough, that, if a banker 
 be under acceptances to an amount beyond the cash balance in his hands, 
 every Bill he holds of that customer's, bona fide, he is to be considered as 
 holding for value ; and it makes no difference, though he hold other collat- 
 eral securities, more than sufficient to cover the excess of his acceptances. 
 The same doctrine was affirmed by Lord Eldon, in Ex parte Bloxham, 8 Ves. 
 531,33 equally,applicable to past and to future acceptances. The subse- 
 quent cases of Heywood v. Watson, 4 Biug. 496, and Bramah v. Roberts, 1 
 Bing. N. C. 469, and Percival v. Frampton, 2 C, M. & R. 180, are to the 
 same effect. They directly establish, that a hona fide holder, taking a ne- 
 gotiable Note in payment of or as security for a pre-existing debt, is a 
 holder for a valuable consideration, entitled to protection against all the 
 equities between the antecedent parties. And these are the latest decisions 
 which our researches have enabled us to ascertain to have been made in 
 the English Courts upon this subject. (See Wilkinson on Law of Shipping, 
 p. 236, edit. 1843.) In the American Courts, so far as we have been able 
 to trace the decisions, the same doctrine seems generally but not univer- 
 sally to prevail. In Brush v. Scribner, 11 Conn. 388, the Supreme Court 
 of Connecticut, after an elaborate review of the English and New York 
 adjudications, held, upon general principles of commercial law, that a pre- 
 existing debt was a valuable consideration, sufficient to convey a valid title 
 to a hona fide holder against all the antecedent parties to a negotiable Note. 
 There is no reason to doubt that the same rule has been adopted and 
 constantly adhered to in Massachusetts ; and certainly there is no trace to 
 be found to the contrary. In truth, in the silence of any adjudications 
 upon the subject, in a case of such frequent and almost daily occurrence in 
 the commercial States, it may fairly be presumed that whatever constitutes 
 a valid and valuable consideration in other cases of contract to support titles 
 of the most solemn nature, is held a fortiori to be sufficient in cases of nego- 
 tiable instruments, as indispensable to the security of holders, and the 
 facility and safety of their circulation. Be this as it may, we entertain no 
 doubt that a hona fide holder for a pre-existing debt, of a negotiable instru- 
 
 ' Ibid. 
 
236 PROMISSORY NOTES. [CHAP. V. 
 
 § 196. In the ordinary course of things, the holder is pre- 
 sumed to be, prima facie, a holder for value ; and he is not 
 bound to establish that he has given any value for the Note, 
 until the other party has [clearly^] established the want, or 
 failure, or illegality of the consideration, or that the Note 
 had been lost or stolen before it came to the possession of 
 the holder.^ [If the maker prove the Note had been obtained 
 from him by fraud, or was fraudulently put in circulation by 
 the payee,^ the holder must also prove that he took it honest- 
 
 ment, is not affected by any equities between the antecedent parties, where 
 he has received the same before it became due, witliout notice of any such 
 equities. We are all, therefore, of opinion, that the question on this point, 
 propounded by the Circuit Court for our consideration, ought to be answered 
 in the negative ; and we shall accordingly direct it so to be certified to the 
 Circuit Court." See also 3 Kent, Lect. 44, pp. 80-82 (5th edit.) ; and 
 Evans V. Smith, 4 Binn. 367 ; Bosanquet v. Dudman, 1 Stark. 1 ; Pillans v. 
 Mierop, 3 Burr. 1664 ; Ex parte Bloxham, 8 Ves. 531 ; Heywood v. Watson, 
 4 Bing. 496 ; Bramah v. Roberts, 1 Bing. N. C. 469 ; Peroival v. Framp- 
 ton, 2 C, M. & K. 180; Brush v. Seribner, 11 Conn. 388. In the recent 
 case of Stalker v. McDonald, 6 Hill, 93, the Court of Errors of New York 
 seem to have affirmed, that the receiving a Note as collateral security was 
 not a valuable consideration, entitling the party to the protection of the rule 
 above stated. See Mickles v. Colvin, 4 Barb. 304 ; Furniss v. Gilchrist, 
 1 Sandford, 53 ; Fenby v. Pritchard, 2 Sandford, 151. [But the most 
 recent cases in New York adopt the rule of Bay v. Coddington, and agree 
 with the decisions of other States. See White v. Springfield Bank, 3 
 Sandford, 222 ; Youngs v. Lee, 18 Barb. 187 ; affirmed on appeal, 2 Ker- 
 nan, 551 ; Gould v. Segee, 5 Duer, 260. See also the late case of Atkin- 
 son V. Brooks, 26 Verm. 569, where Swift v. Tyson is approved, and all the 
 authorities are ably reviewed by Eedfield, C. J.] 
 
 ' Judson V. Holmes, 9 Louis. Ann. 20. 
 
 ' See Bayleyon Bills, eh. 12, pp. 529-531 (5th edit. 1830); Chittyon 
 Bills, ch. 6, § 3, pp. 277 - 284 (8th edit. 1833) ; Vathir v. Zane, 6 Gratt. 246 ; 
 Goodman v. Harvey, 4 A. & El. 870 ; Arbouin v. Anderson, 1 A. &E1. (N.S.) 
 498, 504. -In this last case Lord Denman said : " The owner of a Bill is enti- 
 tled to recover upon it, if he came to it honestly ; that fact is implied prima 
 facie, by possession, and, to meet the inference so raised, fraud, felony, or 
 some such matter must be proved." Story on Bills, §§ 415, 416 ; Knight v. 
 Pugh, 4 Watts & Serg. 445. 
 
 » [Vathir v. Zane, 6 Gratt. 246 ; Bailey v. Bidwell, 13 M. & W. 73 ; 
 Boss V. Bedell, 5 Duer, 462 ; Catlin v. Hanson, 1 Duer, 322, 323. The 
 Court said : " It is not to be denied that there has been considerable dif- 
 
CHAP, v.] CONSIDERATION, — SUFFICIENCY OP. 237 
 
 ly, witliout knowledge of the fraud.^] It may then be incum- 
 
 ference of opinion as to what is the true rule in cases of this kind, that is, 
 upon whom rests the burden of proof; and we shall consider this question 
 briefly for the purpose of explaining the views of this Court. In Holme v. 
 Karsper, 5 Bin. 469, decided in 1813, Chief Justice Tilghman says: 'In 
 the first instance it is presumed that every man acts fairly. It lies on the 
 defendant, therefore, to show some probable ground of suspicion before the 
 plaintiff is expected to do anything more than produce the Note on which 
 he founds his action. But this being done, it is reasonable that the holder 
 should be called on to rebut the suspicion. All that is asked of him is to 
 show that he has acted fairly and paid value ' ; and the learned judge con- 
 , siders these the principles of the mercantile law. In Munroe v. Cooper, 5 
 Pick. 412, the Court says : ' We agree that a new trial in this case must be 
 granted, for the purpose of allowing the defendants to prove, if they can, 
 that there was fraud practised in the inception of the Note, or that it was 
 fraudulently put in circulation. This fact being established will throw upon 
 the plaintiff the burden of proof, to show that he came by the possession of 
 the Note fairly, and without any knowledge of the fraud.' In Baitey v. 
 Bidwell, 13 M. & W. 73, Baron Parke says: ' It certainly has been, since 
 the later cases, the universal understanding, that if the Note were proved 
 to have been obtained by fraud or/affected by illegality, that afforded a pre- 
 sumption that the person who had been guilty of the illegality would dis- 
 pose of it,, and would place it in the hands of another person to sue upon it ; 
 and that such proof casts upon the plaintiff the burden of showing that he 
 was a hona fide indorser for value.' That has been considered in later 
 times as settled, and in this the Court of Exchequer concurred. In the 
 more recent case of Smith v. Braine, in the Queen's Bench, reported in 3d 
 English Law and Equity Reports, 379, the case of Bailey v. Bidwell is 
 commented on and approved. ' Since the new rules,' says Lord Camp- 
 bell, C. J., 'judges have, with entire approbation, directed juries that, when 
 the Bill was illegal in its inception, or when the immediate indorser to 
 the plaintiff obtained possession of it by fraud, the want of considera- 
 tion, as between him and the plaintiff, may be presumed, and in such case 
 the onus is cast upon the plaintiff of proving that he gave value.' In 
 a still more recent case, decided in the Court of Exchequer in June, 1851, 
 reported in 4th English Law and Equity Reports, 531, Harvey v. Towers, 
 the same rule is enforced ; Piatt, Baron, observing, that ' the cases of 
 Bailey v. Bidwell and Smith v. Braine were the decisions of eight judges, 
 and that the casting the burden of proving consideration on the holder of 
 
 ' McKesson v. Stanberry, 3 Ohio St. 166; Bissell v. Morgan, 11 Cush. 
 198; Munroe v. Cooper, 5 Pick. 412 ; Fabens v. Tirrell, Mass. Sup. Jud. 
 Court, 15 Law Rep. 44 ; Sistermans v. Field, 9 Gray, 331 ; Tucker v. 
 Morrill, 1 Allen, 528. 
 
238 PROMISSOEY NOTES. [CHAP. V. 
 
 bent upon him to show that he has given value for it ; ^ for, 
 under such circumstances, he ought not to be placed in a 
 better situation than the antecedent parties, through whom 
 he obtained the Note.^ [But probably the better opinion is, 
 
 a Bill, shown to be affected by fraud, was an extremely just rule, as he 
 must best know what consideration he gave for it.' Such also would seem 
 to be the rule in our own State. Thus, in Vallett v. Parker, 6 Wend. 615, 
 Savage, C. J. : ' The holder of a Bill or Note need not, in the first 
 instance, show a consideration ; possession proves property ; but if there 
 are any suspicious circumstances as to the bona fides of his possession, and 
 the defendant has a good defence against the payee, then he must show 
 that he paid value for it. For instance, if the Note has been lost or stolen, 
 or fraudulently put into circulation, &c. then the plaintiff must show that he 
 came lawfully and fairly by it, and paid value for it.' See also WoodhuU 
 V. Holmes, 10 John. 231 ; Conroy v. Warren, 3 John. Cas. 259. The rule 
 is laid down very distinctly and clearly in 2d Greenl. on Evid. § 172: 
 ' Even in an action by the indorser against an original parly to a Bill, if it 
 is shown on the part of the defendant that the Bill was made under duress, > 
 or that he was defrauded of it, or if a strong suspicion of fraud is raised, 
 the plaintiff will then be required to show under what circumstances and 
 for what value he became the holder. It is, however, only in such cases 
 that this proof will be demanded of the holder; it will not be required 
 where the defendant shows nothing more than a mere absence or want of 
 consideration on his part.' The reason given in Bailey v. Bidwell is, that 
 where there is fraud, the presumption is that he who has been guilty will 
 part with the Note for the purpose of enabling some third party to recover 
 upon it ; and such presumption operates against the holder, and it devolves 
 upon him to show that he gave value for it. Where the defence grows out 
 of mere absence, or want of consideration, no such presumption arises. 
 The dictum of the judge in Nelson v. Corning, 6 Hill, 336, must be con- 
 sidered as made with reference to the particular facts of that case, and not 
 laid down as a general rule."] 
 
 ' See Smith v. Braine, 3 Eng. Law & Eq. 383 ; Small v. Smith, 1 Denio, 
 583 ; Harvey v. Towers, 4 Eng. Law & Eq. 531 ; Berry v. Alderman, 24 
 Eng. Law & Eq. 318 ; Catlin v. Hanson, 1 Duer, 309 ; Gwyn v. Lee, 1 
 Md. Ch. Dec. 445 ; Case v. Mechanics' Bank, 4 Comst. 166 j Perrin v. 
 Noyes, 39 Maine, 384 ; Boyd v. Mclvor, 11 Ala. 822. 
 
 ^ [But this doctrine does not apply to Janfc-bills ; there the burden is on 
 the defendant, to show that the holder took them under such circumstances 
 that he cannot recover upon them. Wyer v. Dorchester & Milton Bank, 
 11 Cush. 51. Metcalf, J. said: "The counsel have, therefore, argued a 
 broader question, namely, whether the burden is on the hohler of a bank- 
 bill, which is shown to have been stolen, to prove that he obtained it fairly, 
 
CHAP, v.] CONSIDERATION, — SUFFICIENCY OF 239 
 
 that merely a want or failure of consideration, there being no 
 
 and under such circumstances as enable him to maintain an action on it. 
 And we are now to decide whether the rule of evidence, which is applied to 
 Promissory' Notes and Bills of Exchange that are stolen or otherwise fraudu- 
 lently put into circulation, is applicable to bank-bills that are circulated after 
 they have been stolen. In the case of such Bills of Exchange and Promissory 
 Notes, the burden is on the holder to prove that he took them in good 
 faith. Munroe v. Cooper, 5 Pick. 412 ; Bailey v. Bidwell, 13 M. &W. 76 ; 
 Mills V. Barber, 2 Gale, 5, 7. According to the recent decisions, that bur- 
 den is very light. See 10 Cush. 491. But we are of opinion that the rule 
 of evidence is different in the case of a bank-bill. . 
 
 " In Miller v. Kaee, 1 Bur. 452, the plaintiff took a stolen bank-note, in 
 the usual course of his business, for a full and valuable consideration, and 
 without any notice that it had been stolen, and presented it at the bank for 
 payment. A clerk of the bank refused to pay it or to redeliver it ; and 
 the holder brought an action of trover against him. No question was 
 raised about the burden of proof, or about the necessity of the plaintiff's 
 proving how he obtained the note. But the case was decided in his favor, 
 on grounds which, in our judgment, are nearly decisive of the question of 
 burden of proof Lord Mansfield said the action was well brought, and 
 would lie against the defendant, upon the general course of business, and 
 from the consequences to trade and commerce, which would be much in- 
 commoded by a contrary determination. And he said, bank-notes ' are not 
 goods, nor securities, nor documents for debts, nor are so esteemed ; but are 
 treated as money, as cash, in the ordinary course and transaction of busi- 
 ness, by the general consent of mankind, which gives them the credit and 
 currency of money, to all intents and purposes.' ' A bank-note is con- 
 stantly and universally, both at home and abroad, treated as money, as 
 cash, and paid and received as such ; and it is necessary, for the purposes 
 of commerce, that their currency should be established and secured.' All 
 this is as true of bank-notes in Massachusetts as in England. They are 
 passed from hand to hand, as money, in all the business, small and great, of 
 every-day life, and cannot ordinarily be identified by anyone who receives 
 or passes them. Whereas Bills of Exchange and Promissory Notes that 
 are negotiated, and given or received, whether in payment or as collateral 
 security, can always be identified, and can ordinarily be traced through 
 their whole course of circulation. And the receiving and the disposing of 
 them are as much a subject of entry, in the books of traders and of banks, 
 as any other of their transactions. It is, therefore, no hardship on the 
 holders of such paper to require of them, in a case where dishonesty has 
 been practised on him who is called on for payment, to show how they ob- 
 tained it ; because, from the nature of the case, they can readily do it, if 
 they have conformed to the usual course of business. But it is totally dif- 
 ferent in the case of bank-bills, which pass as money. For, as before stated, 
 
240 PEOillSSORY NOTES. [CHAP. V. 
 
 fraud or other illegality, does not cast on the holder the bur- 
 den of proving that he gave value for the Note.^] 
 
 § 197. What circumstances will amount to actual or con- 
 structive notice of any defect or infirmity in the title to the 
 Note, so as to let it in as a bar or defence against a holder for 
 value, has been a matter of much discussion, and of no small 
 
 they cannot, in most cases, be identified. In entering receipts and pay- 
 ments on account-books, neither the number nor denomination of bank- 
 bills, nor th« bank that issued them, -would be noted, unless for some special 
 reason, in a special case. 
 
 " We are therefore of opinion that the burden is not on the plaintiff, in 
 this case, to show how he acquired the bill in suit ; but that the burden is 
 on the defendants to show that he, or Mumford and Cannon, received it 
 under such circumstances as to prevent the maintenance of this action. 
 As it is admitted that the plaintiff has no personal interest in the bill, but 
 acts merely as agent for Mumford and Cannon, there can be no doubt that 
 his action might be defeated by proof that they received the bill dishonestly. * 
 
 " Our views of the law of this case are supported by the opinions of dis- 
 tinguished judges, expressed in several cases. In Solomons v. The Bank of 
 England, 13 East, 135, note, which was an action of trover for a bank-note 
 that had been obtained by means of a forged draft, Buller, J. said: 'It is 
 certainly enough, in the case of a bank-note, to show possession, until the 
 title is affected by evidence on the other side.' .Grose, J. said : ' Bank- 
 notes are to be considered as cash, and the holder has a right, in the first 
 instance, to say that he will not tell how he came by it ; but, on the other 
 hand, the bank may take upon them the onus of fixing fraud upon the 
 holder.' In King v. Milsom, 2 Camp. 5, Lord EUenborough said he must 
 presume that the holder of a bank-note which had been lost was a bona 
 fide holder for a valuable consideration, and that it lay on the loser to im- 
 peach the holder's title. And in De la Chaumette v. The Bank of Eng- 
 land, 2 B. .& Ad. 385, which was an action of trover by the holder of a 
 bank-note that had been stolen, Parke, J. said : ' Whoever was the bearer ■ 
 of the note may sue, unless it be shown that the note was not obtained 
 hona fide, and for valuable consideration.' The Supreme Court of 
 Louisiana expressed a decided opinion, if they did not authoritatively ad- 
 judge, that the rule of evidence, which holds in cases of Bills of Exchange 
 and Promissory Notes, is not to be applied to the case of a bank-note. 
 Louisiana Bank v. Bank of United States, 9 Martin, 398."] 
 
 • Wilson V. Lazier, 11 Gratt. 477; Whitaker v. Edmunds, 1 Mood. & 
 Rob. 366 ; Knight v. Pugh, 4 Watts & Serg. 445 ; Middleton w. Jerome, 18 
 Conn. 443; Ross w. Bedell, 5 Duer, 462; Fitch v. Jones, 32 Eng. Law & 
 Eq. 134 ; 5 El. & Bl.; contra, Thomas v. Newton, 2 C. & P. 606. 
 
CHAP, v.] CONSIDERATION, — SUFFICIENCY OF. 241 
 
 diveFsity of judicial opinion. It -is agreed on all sides, that 
 express notice is not indispensable ; but it will be sufficient if 
 the circumstances are of such a strong and pointed charac- 
 ter as necessarily to cast a shade upon the transaction, and 
 to put the holder upon inquiry. i For a considerable length 
 of time] the doctrine prevailed, that, if the holder took the 
 Note under suspicious circumstances, or without due caution 
 and inquiry, although he gave value for it, yet he was not to 
 be deemed a liolder bona fide without notice.^ But this doc- 
 trine has been since overruled [in England] and abandoned, 
 upon the ground of its inconvenience, and its obstruction to 
 the free circulation and negotiation of Exchange, and trans- 
 ferable paper. [Good faith in taking the Note is now gener- 
 ally held sufficient, althougli, in fact, the holder may have 
 been guilty of negligence in not making inquiry.^] 
 
 ' Cone V. Baldwin, 12 Pick. 645; Hall v. Hale, 8 Conn. 336. And see 
 Berry v. Alderman, 22 Eng. Law Sf Eq. 484 ; Holbrook v. Mix, 1 E. D. 
 Smith, 161 ; Brown v. Taber, 5 Wend. 566. 
 
 = Gill V. Cubitt, 3 B. & C. 466; Snow v. Peacock, 3 Bing. 406; Strange 
 V. Wigney, 6 Bing. 677 ; Slater v. West, 1 Dans. & Lloyd, 15 ; Easley v. 
 Crookford, 10 Bing. 243; Nicholson v. Patton, 13 Louis. 213, 216; 3 Kent, 
 Lect. 44, pp. 81, 82 (4th edit.) ; Down v. Hailing, 4 B. & C. 330 ; Beck- 
 with I). Corrall, 3 Bing. 444 ; Chitty on Bills, ch. 6, § 3, pp. 277-284 (8th 
 edit. 1833); Bayley on Bills, ch. 12, pp. 524, 529-531 (5th edit. 1830). 
 See Pringle v. Phillips, 5 Sandf. 157; Hatch v. Searles, 31 Eng. Law & 
 Eq. 219 ; Kentgen u. Parks, 2 Sandf. 60 ; Danforth v. Dart, 4 Duer, 101. 
 
 » Piaphael v. Bank of England, 17 C. B. 161 S. C; 33 Eng. Law. & Eq. 
 276 ; Worcester County Bank v. Dorchester and Milton Bank, 10 Cush. 
 491 ; Goodman v. Harvey, 4 A. & El. 870; Uther v. Eich, 10 A. & El. 
 784; Stephens u. Poster, 1 C, M. & R. 849; Arbouin v. Anderson, 1 A. 
 &E1. (N. S.) 498, 504; Story on Bills, §§415, 416; Fowler v. Brantly, 
 14 Peters, 318; Masters v. Ibberson, 8 C. B. 100. The whole of this 
 chapter, mutatis mutandis, has been extracted from Story on Bills, §§178- 
 194, with a few alterations, and with the addition of some new illustrations 
 and notes and authorities. On examining the- chapter, I found little to add 
 to it; and the subject is so important, that it could not be omitted in the 
 present volume, which is designed to be a complete and independent 
 treatise of itself. In New Yo;-k the last proposition stated in the text was 
 for a long time warmly denied, and the old rule was adhered to. In Prin- 
 gle V. Phillips, 5 Sandf. 163, Mr. Justice Duer delivered a very elaborate 
 16 
 
242 PROMISSORY NOTES. [CHAP. V. 
 
 and able opinion, controverting the later English and other cases, and sus- 
 taining the opposite doctrine. That opinion was printed in full in the notes 
 to the fifth edition of these Commentaries. It is now stricken out because 
 the Court of Appeals has overruled the case of Pringle v. Phillips, and fully 
 adopted the doctrine stated in the text. Magee v. Badger, 34 N. Y. 247. 
 In Belmont Branch Bank v. Hoge, 35 N. Y. 65, Mr. Justice Porter, in 
 giving the opinion of the Court, says : " Upon the facts proved, it is mani- 
 fest that the jury were right in finding that the defendants were bona fide 
 holders of the paper in question. The instructions of the learned judge 
 on this branch of the case were more favorable to the plaintiffs than the 
 law would strictly justify. He gave them the benefit of the assumption 
 that, though the defendants took the paper from the apparent owners for 
 value before it became due, and without notice of any defect in their title, 
 the plaintiffs could reclaim the Bills if they proved the existence of circum- 
 stances which would have been likely to excite the suspicions of a cautious 
 and vigilant purchaser. We cannot accept this as an accurate exposition 
 of the rule applicable to the transfer of commercial paper, thoUgh it is in 
 accordance with antecedent decisions in the Superior Court. Kentgen v. 
 Parks, 2 Sandf. 60; Pringle o. Phillips, 5 Sandf 157; Danforth v. Dart, 
 4 Duer, 101. We had occasion to express our views on this question in 
 the case of Magee v. Badger, 34 N. Y. 247. One who for full value ob- 
 tains from the apparent owner a transfer of negotiable paper before it ma- 
 tures, and who has no notice of any equities between the original parties, 
 or of any defect in the title of the presumptive owner, is to be deemed a 
 Jiona fide holder. He does not owe to the party who puts such paper iu 
 circulation the duty of active inquiry to avert the imputation of bad faith. 
 The rights of the holder are to be determined by the simple test of honesty 
 and good faith, and not by mere speculation as to his probable diligence or 
 negligence. The authority mainly relied on in the exceptional cases which 
 have favored an opposite theory is the decision in Gill v. Cubitt, 3 B. & C. 
 466. The doctrine of that case has been repeatedly overruled as well in 
 the English as in the American courts ; and it cannot be recognized as au- 
 thority without sanctioning an unwise innovation in our system of commer- 
 cial law. Goodman v. Harvey, 4 A. & El. 870 ; Bank of Bengal v. Pagan, 
 7 Moore P. C. 61 ; Raphael v. Bank of England, 17 C. B. 161 ; S. C. 33 
 Eng. Law & Eq. 276; 2 Parsons on Bills, 272, 279; Worcester Co. Bank 
 V. Dorchester Bank, 10 Cush. 488; Brush v. Scribner, 11 Conn. 888; 
 Goodman v. Simonds, 20 How. (U. S.) 843 ; Bank of Pittsburg v. Neal, 22 
 How. (U. S.) 96; Murray v. Lardner, 2 Wallace (U. S.) 110; Hall v. 
 Wilson, 16 Barb. 550; Steinhart v. Boher, 34 Barb. 436 ; Mc Williams ». 
 Mason, 31 N. Y. 294." 
 
CHAP. VI.] PRESENTMENT FOE PAYMENT. 2'13 
 
 CHAPTER VI. 
 
 PRESENTMENT OP PROMISSORY NOTES FOR PAYMENT. 
 
 § 198. We come, in the next place, to the consideration of 
 tlie presentment of Promissory Notes for payment. We have 
 already seen, that the contract or engagement of the maker 
 is to pay the Note upon the due presentment thereof, at its 
 maturity, or when it becomes due, at the place designated 
 therefor.^ We have also seen that the contract or engage- 
 ment of the indorser is, that, if upon such due presentment 
 the Note is not paid by the maker, he will, upon due notice 
 being given to him of the dishonor, pay the same upon de- 
 mand.^ Hence we see, that, while the engagement of the 
 maker is absolute, that of the indorser is conditional, and 
 any neglect, or laches of the holder, in not making due 
 presentment, will discharge him.^ It becomes important 
 therefore to consider, first, what is a due presentment for 
 payment ; and, secondly, what is a due notice of the dis- 
 honor. 
 
 § 199. Let us then inquire, in the first place, what is a 
 due presentment for payment. This necessarily involves 
 various considerations ; (1.) The time when the Note ar- 
 rives at maturity, or becomes due ; (2.) The place where it 
 is payable ; (3.) The mode of presentment for payment ; 
 (4.) The person by whom it is to be presented for payment ; 
 (5.) The person to whom it is to be presented for pay- 
 ment ; and (6.) What will constitute a sufficient justifica- 
 
 ' Ante, § 113. 
 
 2 Ante, § 135 ; Bayley on Bills, dh. 7, § 1, pp. 217, 218 (5th edit.). 
 ' Ibid. ; Magruder v. Bank of Georgetown, 3 Peters, 90 ; Whittlesey v. 
 Dean, 2 Aik. 263. 
 
244 PEOMISSOEY NOTES. [CHAP. VI. 
 
 tion or excuse, or not, for the want of a due presentment ; 
 and (7.) Notice, and other proceedings to be had on non- 
 payment of the Note. Of these we shall treat in succession, 
 in the order in which they are named. 
 
 § 200. And, in the first place, as to the time of present- 
 ment for payment. It is obvious that, where a Note is made 
 payable at a particular time, cither with reference to its date, 
 or to the sight thereof, or otherwise, payment is demandable 
 only when that time has expired, and not before.^ Still, 
 however, although then demandable, the holder might not 
 choose to demand payment of the maker at that time, but 
 might omit and delay it at his pleasure to a future time, un- 
 less there were some known rule of law which should com- 
 pel him to strict punctuality in point of time. Now, it would 
 be highly injurious to the interests of commerce, and to the 
 security of the drawers and indorsers of negotiable instru- 
 ments, if the holder were at liberty to consult his own mere 
 pleasure as to the time of making any demand of payment 
 after a Note became due, and might, after long delays and 
 non-payment, still have recourse over against the drawer or 
 indorsers." It would expose the latter to serious, and per- 
 haps to irremediable losses, which an earlier demand might 
 have prevented ; and thus it would have a tendency to dis- 
 courage the use and circulation of negotiable paper.^ 
 
 § 201. Hence, the Commercial Law, which throughout all 
 its departments inculcates the doctrine of reasonable dili- 
 gence, and frowns upon and discourages laches, has intro- 
 duced a rule of great strictness on this subject, which, al- 
 tliough it may sometimes be found harsh, and perhaps se- 
 vere in its practical operation, yet is, for the general purposes 
 of business, highly useful to the commercial community, by 
 introducing promptness, fidelity, and exactness in the de- 
 mand of payment. In respect to the maker, who is held to 
 
 ' See Lawrence v. Langley, 14 N. H. 70. 
 
 ' Story on Bills, §§ 324, 325, 344 ; Chitty on Bills, ch. 9, p. 385 (8th 
 edit. 1833) ; Id. p. 402. 
 
CHAP. VI.] PKESENTMENT FOR PAYMENT. 245 
 
 be the party primarily liable, and the absolute ' debtor, the 
 holder is at liberty to allow him whatever indulgence or de- 
 lay he may please, short of the period which will, under the 
 statute of limitations, or prescription of the particular state 
 or country where the suit is brought, operate as a bar to his 
 claim. But, as to the indorsers, who are only collaterally 
 and conditionally liable, the rule is far different. It is, that 
 in order to charge them, a demand of payment should be 
 made of the maker on the very day on which, by law, the 
 Note becomes due ; and, unless the demand be so made, it 
 is generally a fatal objection to any right of recovery against 
 the indorsers, although the maker himself may and will 
 still be held liable on the Note.^ 
 
 ' Chitty on Bills, ch. 9, pp. 385, 386, 422, 423 (8th edit. 1833) ; Bayley 
 on Bills, ch. 7, § 1, pp. 217, 232, 247 (5th edit. 1830) ; Pothier, De Change, 
 n. 129 ; Camidge v. AUenby, 6 B. & C. 373 ; Bridges v. Berry, 3 Taunt. 
 130 ; Jackson v. Newton, 8 Wa,tts, 401 ; 1 Bell, Comm. B. 3, ch. 2, § 4, pp. 
 408-410 (5th edit.) ; Robinson v. Blen, 20 Maine, 109. Mr. Chitty has 
 remarked : " It is a general rule of law, that, where there is a precedent 
 debt or duty, the creditor need not allege or prove any demand of the 
 payment before the action brought, it being the duty of the debtor to find 
 out his creditor, and tender him the money ; and, as it is technically said, 
 the bringing of the action is a sufficient request. It might not perhaps be 
 unreasonable, if the law in all cases required presentment to the acceptor 
 of a Bill or maker of a Note before an action be commenced against him, 
 because, otherwise, he might, on account of the negotiable quality of the 
 instrument, and the consequent difficulty to find out the holder of it on the 
 day of payment, in order to make a tender to him, be subjected to an ac- 
 tion without any default whatever ; and the engagement of the acceptor of 
 a Bill or maker of a Note is to pay the money, when due, to the holder, who 
 shall for that purpose make presentment. And one reason why a party 
 cannot recover at law on a lost Bill or Note is, that the acceptor of the one 
 and maker of the other has a right to insist on having it delivered up to 
 him on his paying it. It seems, however, that in general the acceptor or 
 maker of a Note cannot resist an action on account of neglect to present 
 the instrument at the precise time when due, or of an indulgence to any 
 of the other parties. And, on the above-mentioned principle, that an ac- 
 tion is of itself a sufficient demand of payment, it has been decided, that 
 the acceptor or maker of a'Note cannot set up, as a defence, the want of 
 a presentment to him, even before the commencement of the action, and 
 although the instrument be payable on demand. But, in such a case-, upon 
 
246 . PROMISSORY NOTES. [CHAP. VI. 
 
 § 202. The like rule prevails in the foreign law. When- 
 ever a Promissory Note becomes due, there must, in order to 
 charge the indorsers, be a demand of payment on that very 
 day, otherwise the indorsers will be discharged from their ob- 
 ligations, because the reciprocal obligations of the holder 
 have not been performed.^ 
 
 § 20-3. Even the death, or known bankruptcy or insolveu; 
 cy of the maker, will (as we shall presently more fully see 2) 
 be no excuse for the omission to demand payment at the time, 
 when the Note becomes due.^ The French law is precisely 
 the same upon this point.* And it will make no difference 
 in the application of the rule by our law, whether the Note 
 has been taken or transferred for a precedent debt, or for 
 money advanced on a purchase thereof. In the former case, 
 the right to recover the precedent debt, as well as the right 
 to recover on the Note, will be gone, and so also the right to 
 
 an early application, the Court would stay proceedings without costs." 
 Chitty on Bills, ch. 9, pp. 391, 392 (8th edit. 1833) ; Bayley on Bills, ch. 6, 
 § 1, pp. 214, 215 (5th edit. 1830) ; Id. ch. 9, p. 402 ; Dingwall v. Dunster, 
 Doug. 247 ; Anderson v. Cleveland, cited in Esp. Digest, N. Prius, 58 (4th 
 edit.) ; and in 13 East, 430, note ; Kutnball v. Ball, 10 Mod. 38 ;" Reynolds 
 ■o. Davies, 1 Bos. & Pull. 625 ; Hansard v. Robinson, 7 B. & C. 90 ; Wil- 
 liams V. Waring, 10 B. & C. 2 ; Macintosh v. Haydon, Ryan & Mood. 
 363 ; 2 Chitty, 11 ; 1 Tidd, Pract. 145 (9th edit.) ; Story on Bills, §§ 325, 
 344. • ' 
 
 ' Code de Coram, art. 161 ; Locre, Du Code de Comm. Tom. 1, art. 
 161, pp. 502, 503; Pothier, De Change, n. 138-141. See Heinecc.de 
 Camb. cap. 4, § 24 ; Nouguiei-, Des Lettres de Change, Tom. 1, Liv. 3, 
 ch. 9, § 2, p. 378 ; Id. Liv. 4, §§ 3, 4, pp. 493, 494 ; Thomson on Bills, eh. 
 6, §1, pp. 417, 418 (2d edit.); Id. § 2, p. 430 ; Id. ch. 5, § 2, pp. 376, 377; 
 Story on Bills, § 345. 
 
 = Post, § 241 ; Story on Bills, § 346. 
 
 » Story on Bills, §§ 234, 279, 307, 318, 319, 346; Chitty on Bills, ch. 8, 
 p. 360 (8th edit. 1833) ; Id. ch. 9, pp. 386, 389 ; Bayley on Bills, ch. 7, 
 § 1, p. 251 (5th edit. 1830) ; Molloy, B. 2, ch. 10, § 34 ; Russel v. Langstaffe, 
 Doug. 515; Esdaile v. Sowerby, 11 East, 117 ; Bowes v. Howe, 5 Taunt. 
 30 ; S. C, 16 East, 112, 1 M. & S. 555 ; Sands v. Clarke, 8 C. B. 751 ; 
 Nash V. Harrington, 2 Aik. 9 ; Bruce v. Lytle, 13 Barb. 163. 
 
 * Pothier, De Change, n. 146, 147 ; Pardessus, Droit Comm. Tom. 2, 
 art. 424 ; Id. Tom. 5, art. 1497 ; Story on Bills, § 347. 
 
CHAP. VI.] PEESENTMENT FOE PAYMENT. 247 
 
 recover back the money, or recover on the Note, in the latter 
 case.^ Nor will the circumstance, that the holder has re- 
 ceived the Note so near the time when it becomes due as to 
 render it impracticable to make a pi-esentment for payment 
 at its maturity, constitute any excuse for the want of a due 
 presentment, as to the other parties to the Note, whatever 
 might be the case as to the party from which he then first re- 
 ceived it. In respect to the latter, perhaps all which under 
 such circumstances can be required is, to present it with 
 reasonable diligence, as soon as it can be, for payment, and 
 if dishonored to give him due notice thereof.^ The French 
 law upon this point, also, seems exactly in coincidence with 
 ours.^ 
 
 § 204. The old French law was equally as expressive as 
 ours, that the bankruptcy or insolvency of the acceptor, at 
 the maturity of the Bill (and the same rule was applied to 
 a Promissory Note), constitutes no excuse for the want of a 
 due presentment for payment by the holder at that time.* 
 The modern Code of Commerce positively declares, that the 
 holder of a Bill of Exchange or a Promissory Note is not 
 dispensed from protesting the Bill for the non-payment 
 thereof, either by its having been protested for non-accept- 
 ance, or by the deatli or failure of the drawee, or maker.^ 
 And it adds, that, in case of the failure of the acceptor or 
 maker, before the Bill or Note becomes due, the holder may 
 cause it to be protested, and have his recourse against the 
 other parties to the Bill or Note for payment, or for security 
 
 ' Chitty on Bills, ch. 9, pp. 385-387, 417, 418 (8* edit. 1833) jBayley 
 on Bills, ch. 7, § 1, pp. 232-234 (5tli edit. 1830) ; Camidge v. AUenby, 6 
 B. & C. 373; Bridges v. Berry, 3 Taunt. 130. 
 
 ' Chitty on Bills, ch. 9, p. 423 (8th edit. 1833); Anderton v. Beck, 16 
 East, 248 ; Bayley on Bills, ch. 7, § 1, p. 243 (5th edit. 1830). 
 
 " Pardessus, Droit Comm. Tom. 2, art. 426 ; Id. Tom. 5, art. 1497 ; Story 
 on Bills, §§ 326, 346, 347. 
 
 * Pardessus, Droit Comm. Tom. 2, art. 424; Id. Tom. 5, art. 1497; 
 Pothier, De Change, n. 147 ; Savary, Le Parfait Negoeiant, Tom. 2, 
 Parere, 45, p. 360 ; Story on Bills, §§ 319, 326. 
 
 ' Code de Comm. art. 163, 187. 
 
248 tEOMISSORY NOTES. ' [CHAP. VI. 
 
 for payment.^ The French law seems even to go further, and 
 to require that the demand and protest should be made in 
 cases of such bankruptcy and insolvency, although, by the law 
 of the place where the Bill or Note is payable, no demand or 
 protest is in such a case required.^ Pardessus puts this as 
 clear, and says that if a Bill be drawn in France, payable in 
 a foreign country, it will be necessary, although the law of 
 the place dispenses with a protest in case of such bankrupt- 
 cy or insolvency, and that the holder should still protest the 
 Bill, under the peril of otherwise losing his recourse against 
 the French drawer ; for, in such a case, the 1-aw of France, 
 where the contract between the drawer and the payee, or 
 other holder, was made, is to govern as to the acts to be 
 done, to entitle the latter to a recovery.^ And he applies the 
 same rule as to the remedy of the holder against the indors- 
 ers, under the like circumstances.* It is almost unnecessa- 
 ry to add, that what is here said as to Bills of Exchange 
 is equally applicable to Promissory Notes, mutatis mu- 
 tandis.^ 
 
 § 205. Still, however, there are certain grounds (as we 
 shall more fully see hereafter) which will, ordinarily, excuse 
 the want of a due presentment for payment at the maturity 
 of the Note, resulting either from a moral or a physical in- 
 ability, or from other causes which the law deems a suf&cient 
 dispensation, or excuse, for the delay or omission to make 
 due demand on the very day of payment. These are, for the 
 most part, the same which will ordinarily excuse the want of 
 due notice of the dishonor of the Note, and will come under 
 our consideration more fully hereafter.^ Among these, we 
 
 ' Ibid.; Sautayra, sur Code de Comm. art. 163, p. 110; Story on Bills, 
 § 322. 
 
 ^ Pardessus, Droit Comm. Tom. 5, art. 1497 ; Story on Bills, § 177, note. 
 
 » Ibid. 
 
 ' Ibid. But see Story on Bills, §§ 176, 177, and note. 
 
 ' See Code de Comm. art. 187 ; Story on Bills, § 347. 
 
 « See Story on Bills, §§ 308, 326, 327, 344 ; Chitty on Bills, ch. 10, pp. 
 486 -488, (8th edit.) ; post, §§ 257-263, 355-360. 
 
CHAP. VI.J PRESENTMENT FOR PAYMENT. 249' 
 
 may mention the sudden illness,^ or death of the holder or his 
 agent ; the absconding of the maker before the day of pay- 
 ment;^ or his place of residence being deserted or unknown, 
 or unfound, after diligent search therefor, [taking ample se- 
 curity from the maker as indemnity ; 3] the general preva- 
 lence of a malignant disease, such as the yellow fever or 
 cholera, to an extent which stops all business and trade in. 
 the place ; the impossibility of reaching the place where the 
 maker resides, from snows or freshets, or overwhelming ac- 
 cidents ; the occurrence of war, or the interdiction of com- 
 mercial intercourse with the country where the maker re- 
 sides ; and the day of the maturity of the Note, occurring on 
 a public holiday, or a religious festival, or a solemn fast, cele- 
 brated according to the known usage, or the ordinances of 
 the country.* 
 
 ' If illness of the holder is relied upon as an excuse for non-presentment, 
 it must be shown to have been so sudden and severe as to prevent the em- 
 ploying of another, and then it must be shown that the proper steps were 
 taken as soon as possible on recovery. Wilson v. Senier, 14 Wis. 380. And 
 in case of the death of the holder, his administrator must make demand and 
 give notice at the earliest practicable time. Ibid. 
 
 ^ The absconding of the maker does not excuse inquiry and demand. 
 Pierce v. Gate, 12 Cush. 190. Nor does the infancy of the maker. Wyman 
 V. Adams, 12 Cush. 210. 
 
 ' Lewis V. Kramer, 3 Maryland, 265 ; Walters v. Munroe, 17 Md. 154. 
 Otherwise in New Hampshire, Moses v. Ela, 43 N. H. 557. So the taking 
 a chattel mortgage by the indorser. Wilson v. Senier, 14 Wis. 380. Noth- 
 ing short of a general assignment of all of a maker's property, and actual 
 transfer of all to the indorser so as to make him principal, will excuse a de- 
 maud. Ibid. 300 ; also Haskell v. Boardman, 8 Allen, 38. 
 
 * Story on Bills, § 233, 234, 308, 327 ; post, §§ 257-263; Chittyon Bills, 
 ch. 8, pp. 360 (8th edit.) ; Id. pp. 389 - 392 (8th edit.) ; Id. pp. 422, 423 ; 
 Id. ch. 10, p. 485, 524. A change of residence by a maker from one State 
 to another between the making and maturity of a Note dispenses with the 
 necessity of demand at his residence at the time of making. Foster v. Ju- 
 lien, 24 N. Y. 28. But where a maker abandoned his residence and place 
 of business, and left the commonwealth, although his family remained a few 
 months in his residence, a demand at his last place of business without in- 
 quiry for his present residence was held sufficient. Grafton Bank ;;. Gox, 
 13 Gray, 603. 
 
250 PROMISSORY NOTES. [CHAP. VL 
 
 § 206. Pothier lays down a rule, equally broad and satis- 
 factory, in respect to the due demand and protest of Bills of 
 Exchange (and the like doctrine is applicable to Promissory 
 Notes), namely, that any inevitable accident, or irresistible 
 force, or unforeseen occurrence, which could not be provided 
 against, will constitute a sufBcient excuse for the neglect or 
 omission. And for this he relies upon the general maxim 
 of the Roman law, in cases of contract : " Impossibilium 
 nulla obligatio est." ^ Indeed, this seems to be admitted by 
 foreign jurists, as the general rule which governs their juris- 
 prudence. But of this more will be said in our subsequent 
 pages. 
 
 § 207. Promissory Notes are not ordinarily made payable 
 at sight, or at a fixed time after sight, although they may be 
 so ; 2 but they are ordinarily made payable either at a fixed 
 period after date, or upon demand. If a Note is made pay- 
 able on demand, the time at which payment thereof must be 
 demanded must depend upon the circumstances of each 
 particular case, and no general rule can be laid down, except 
 that payment must be demanded within a reasonable time.^ 
 
 ' Pothier, De Change, n. 144 ; Dig. Lib. 50, tit. 1 7, 1. 185 ; Pardessus, 
 Tom. 2, art. 426. 
 
 = Bayley on Bills, ch. 7, § 1, p. 248 (5th edit); Thomson on Bills, chi 
 6, § 2, p. 430, 431 (2d edit.) ; Chitty on Bills, ch. 9, p. 407 (8th edit.) 
 
 = Story on Bills, § 231 ; Bayley on Bills, ch. 7, § 1, p. 234 (5th edit.) ; 
 Thomson on Bills, ch. 6, § 2, pp. 430, 431 ; Rice v. Wesson, 11 Met. 400; 
 Lockwood V. Crawford, 18 Conn. 861 ; Carll v. Brown, 2 Mich. 401. Mr. 
 Bayley says : " A Bill or Note, payable on demand, is payable immediately 
 upon presentment ; and, unless put into circulation, must be presented with- 
 in a reasonable time after the receipt." Bayley on Bills, ch. 7, § 1, p. 234 
 (5th edit.) ; Id. p. 232. He applies the same rule to Bills pr Notes payable 
 at sight, as to Bills payable on demand. Id. p. 236. Mr. Chitty affirms the 
 same doctrine as to Notes payable on demand. Chitty on Bills, ch. 9, p. 
 402 (8th edit.) ; Id. pp. 412, 413. He here says: " Upon this question, it 
 has been observed, that there is no other settled general rule than that the 
 presentment must be made within a reasonable time, which must be ac- 
 commodated to other business and affairs of life, and that a party is not 
 bound, in any case, to present a Bill or Note, payable on demand, on the 
 same day it is issued or received by him ; for a man ought not to be required 
 
CHAP. VI.] PEESENTMEMT FOE PAYMENT. 251 
 
 [No demand is, however, necessary before suit is brought, 
 
 to neglect every other business for the purpose of making so prompt a pre- 
 sentment ; and it would be very inconvenient to have an inquiry in each par- 
 ticular case, whether or not the holder could conveniently have presented 
 the instrument on the same day. And, as observed by Lord Mansfield, it 
 would be unreasonable to suppose that a tradesman should be compelled to 
 run about the town with a dozen drafts, from Charing Cross to Lombard 
 Street, on the same day ; and he directed the jury to consider that twenty- 
 four hours were the usual time allowed for the presentment for payment. 
 The notion, however, that twenty-four hours was the limit, is not the present 
 rule ; and it suffices, in all cases, for a party to present a Bill or Note, pay- 
 able on demand, at any time during the hours of business on the day after 
 he received it. But although this rule universally prevails between the 
 party delivering and the party receiving from him a Bill or Note so pay- 
 able, yet it must not be understood that the ultimate presentment for pay- 
 ment can be delayed for any indefinite time, by successive transfers between 
 numerous parties, and by each party, on the day after he has received the 
 Bill or Note, transferring it to another ; for if there should, by any means, 
 be an unreasonable number of days occupied, the party or parties first 
 transferring the instrument, and other of the earlier parties, would prob- 
 ably be considered discharged from liability, in case the bankers, or person 
 who issued the Note, so payable, should in the mean time fail ; and no pru- 
 dent party should penhit any delay in presentment, especially if there be 
 the least reason to doubt the solvency of the party to pay. It is perfectly 
 clear, that if a party who has received such a Bill or Note, does not, on the 
 next day, present it, or forward it for presentment in due time on the next 
 day, nor transfer it, but locks it up, or keeps it, he thereby forfeits all claim 
 upon the person from whom he received it. It seems that, with respect to 
 the length of time Bills and Notes, payable on demand, may be kept in cir- 
 culation, a distinction may be taken between the Notes of a private indi- 
 vidual and country bankers' Notes, and also with reference to the persons 
 by and between whom they have been circulated ; and it has been con- 
 sidered, that upon a Bill or Note, payable on demand, and given for cash, 
 by a person who makes the profit by the money on such Bills or Notes a 
 source of his liveUhood (as in the case of country bankers issuing their 
 Notes), it is difficult to say what length of time such person shall be en- 
 titled to consider unreasonable ; but that upon such Bills or Notes given by 
 way of payment, or paid into a banker's, any time beyond what the com- 
 mon course of business warrants is unreasonable. This p.osition is ex- 
 plained by a recent case, where the defendants themselves, country bankers, 
 transferred another country banker's Bill, some days after they had kept it, 
 to the plaintifi"'s traveller, who did not remit it to the correspondents for 
 some days ; and, on its being presented, it was dishonored ; and it was held, 
 that the defendants were not discharged from liability ; because, as Lord 
 
252 PEOMISSORY NOTES. [CHAP. Vl. 
 
 although one be specially alleged in the declaration.^] If the 
 Note be payable at sight, or at so many days after sight, the 
 same rule would seem to prevail as upon Bills of Exchange, 
 drawn at or after sight.^ That is to say, the date of the Note 
 would be treated as if it were the date of a Bill, payable at 
 or after sight, and the time would begin to run from the, pre- 
 sentment of the Note, as it would from the presentment for 
 acceptance. In short, although the maker of a Note payable 
 
 Tenderden observed, the character of the Bill, and the course of dealing, 
 must be attended to. It was a Bill by a country banker upon his London 
 tanker, and it did not seem unreasonable to treat such Bills as not requir- 
 ing immediate presentment, but as being retainable by the holders for use 
 within a moderate time, as part of the circulating medium of the country ; 
 and the defendants themselves, by the time they kept it, showed they so 
 considered this Bill, but he left it to the jury to say whether they thought 
 the delay unreasonable or not, and they found for the plaintiff. Upon a 
 Bill or Note of this kind (i. e. payable on demand) given by way of pay- 
 ment, the course of business formerly was, to allow the party to keep it, if 
 it was payable in or near the place where it was given, until the morning 
 of the next day of business, after it was received ; and, according to more 
 modern decisions, it is settled, that if such a Bill or'Note be payable by or 
 at a banker's, it suffices to present it for payment at any time during bank- 
 ing hours on the day after it is received. Thus, where a Note of this kind, 
 payable in London, was given there in the morning, a presentment the next 
 morning was held by the Court sufficiently early, though juries endeavored 
 to establish a contrary rule, and to find that the instrument must be pre- 
 sented on the very day it was received ; and though it has been supposed 
 that the presentment must be in the foJenoon of the next day, yet, in other 
 cases, it was considered that the party has twenty-four hours, or, according 
 to a more recent decision, he has the whole of the banking hours, or hours 
 of business of the next day, to make the presentment ; and this last decision 
 may now be relied upon as the fixed rule. It has been held, that a Bill or 
 Note of this kind, given by way of payment to a banker, must be presented 
 by him as soon as if it had been paid into his hands by a customer, and that 
 if such a Bill or Note be paid into a banker's, and be payable at the place 
 where the banker lives, it must be presented the next time the banker's 
 clerk goes his rounds, but that doctrine has been overruled, and it should 
 seem, that in all cases it suffices for a banker to present such check the day 
 after he receives it." See also Foster v. Barney, 3 Verm. 60 ; Brenzer v. 
 Wightman, 7 Watts & Serg. 264. 
 
 ' Burnham v. Allen, 1 Gray, 496. 
 
 * Bayley on Bills, ch. 7, § 1, pp. 227, 234, 236 (5th edit.). 
 
CHAP. VI.] PRESENTMENT FOR PAYMENT. 253 
 
 at sight (which is however allowed the usual days of grace, 
 as we shall presently see)/ or payable after sight, has sight 
 of the instrument when he makes it ; yet a distinct and sub- 
 sequent presentment must afterwards be made, and the time 
 of payment be reckoned from the day of such presentment, 
 and exclusive thereof.^ 
 
 § 208. Now, the rule in relation to Bills of Exchange, 
 whether foreign or domestic, payable at or after sight, une- 
 quivocally is, that they must be presented for acceptance 
 (and by analogy the rule applies to presentment of Notes 
 payable at and after sight) within a reasonable time ; and 
 what that reasonable time is must depend upon the circum- 
 stances of each particular case.^ The holder of such a Note is 
 
 » Bayley on Bills, ch. 3, § 10, p. 98 ; post, § 211. 
 
 ' Chitty on Bills, ch. 9, pp. 406, 407 (Sth edit.) ; Sturdy v. Henderson, 
 4 B. & Al. 592, 593; Bayley on Bills, ch. 3, § 10, p. 98 (5th edit.); 
 Sfory on Bills, § 355, note. 
 
 = Bayley on Bills, ch. 7, § 1, pp. 227, 228, 232, 234 ; Story on Bills, 
 § 231 ; Chitty on Bills, ch. 7, pp. 301-305 (8th edit.). In Massachusetts, a 
 Note payable on demand is demanded within a reasonable time, if such de- 
 mand is made at any time within sixty days of its date without grace, and 
 notice given to the indorser. General Statutes, ch. 53, § 8. Under this 
 statute it is held, that a Note on demand, indorsed after the expiration of 
 sixty days from its date, may still be demanded at any time within sixty 
 days of the transfer, and notice thereof will hold the indorser. It was also 
 held, that notice of the fiJst demand must be given to the indorser, as where 
 a demand was made a few days after the transfer and delay requested, and 
 no notice given the indorser, and afterwards, and within the sixty days, 
 another demand was made and notice given the indorser, it was held that 
 the indorser was not holden. Rice w. Wesson, 11 Met. 400. In New York, 
 a Note on demand with interest is a continuing security, and no delay is of 
 itself sufficient to discharge an indorser. Merritt v. Todd, 23 N. Y. 28 ; 
 Herriek v. Woolverton, 42 Barb. 50. A Note indorsed for the first time 
 after it is overdue is treated, as between indorser and indorsee, as a Note on 
 demand dated as of the time of transfer, and demand on the maker and 
 notice to indorser must be made within reasonable time, and such reasonable 
 time must be determined by the circumstances of each case. Goodwin v. 
 Davenport, 47 Maine, 112; Beebe u. Brooks, 12 Cal. 308. But if a Note 
 has been indorsed before maturity, and proper demand and notice is made 
 and given, and the Note is indorsed to another holder after maturity, it is 
 not necessary to make another demand ; the steps already taken inure to all 
 
254 PKOMISSOKY NOTES. [CHAP. VI. 
 
 not at liberty to keep it in his possession for an unreasonable 
 time, without presentment, and to lock it up from circula- 
 tion. [And the fact that the parties continue solvent, and 
 no damage is caused by the delay, constitutes no exception.^] 
 If he does, he will make the Note his own, and will dis- 
 charge the antecedent indorsers thereon from all responsi- 
 bility.^ But if the Note is kept in circulation, and not held by 
 any one holder, through whose hands it passes, an unreasona- 
 ble time, it seems difficult to assign any particular time in 
 which it ought to be presented to the maker, so as the time 
 of payment should begin to run thereon.^ There may be 
 some limitations upon this rule, in its application to particu- 
 lar classes of cises, resulting from the common course of 
 business, or the circulation of particular classes of Notes, 
 such as those of bankers and banks ; but these all resolve 
 themselves into questions of usage.* 
 
 subsequent holders. French v. Jarvis, 29 Conn. 347. See Adams v. Leland, 
 5 Bosw. 411 ; St. Johns v. Roberts, 31 N. Y. 441. 
 
 • MuUiok V. Kadakissen, 28 Eng. Law & Eq. 86. 
 
 ' Bayley on Bills, .ch. 7, § 1, pp. 227-230, 232 (5th edit). 
 
 ' Ibid. ch. 7, pp. 232, 233 (5th edit.) ; Story on Bills, § 231 ; Chitty on 
 Bills, ch. 7, pp. 301-305; Muilman v. D'Eguino, 2 H. Black. 565, 569; 
 Goupy V. Harden, 7 Taunt. 159 ; Mellish v. Rawdon, 9 Bing. 416; Mul- 
 lick V. Kadakissen, 28 Eng. Law & Eq. 86 ; Fry v. Hill, 7 Taunt. 397 ; 
 Gowan v. Jackson, 20 John. 1 76 ; Robinson v. Atoes, 20 John. 146. On 
 this subject Mr. Chitty (p. 301) says: "With respect to the time when 
 Bills, payable at or after sight, should be presented for acceptance, the 
 only rule, whether the Bill be foreign or inland, and whether payable 
 at sight, or at so many days after sight, or in any other manner, is, that 
 they must be presented within a reasonable time; and, as the drawer 
 may sustain a loss by the holder's keeping it any great length of time, it is 
 advisable in all cases to present it as soon as possible ; but he is not obliged 
 to send it by the first opportunity. According to the French law, Bills 
 payable at or after sight must be presented for acceptance within certain 
 specified periods, according to the places at which they are drawn ; and the 
 French law has also provided against a purposely hasty presentment and 
 demand of acceptance, before the drawee can have received advice, and 
 that the holder must allow as many days as there are five leagues, or fifteen 
 miles, between the place of drawing and the place in which drawn.'' 
 
 • Story on Bills, § 231 ; Bayley on Bills, ch. 7, § 1, pp. 227, 228, 236 (5th 
 
CHAP. TI.] PRESENTMENT FOR PAYMENT. 255 
 
 ^ 209. Pothier, upon general principles, holds the same 
 doctrine in cases of Bills of Exchange, payable at or after 
 
 edit.) ; Chitty on Bills, ch. 7, pp. 303, 304 (Sth edit.). Mr. Chitty (p. 303) 
 says : " The holder of an inland Bill, payable after sight, is not bound in- 
 stantly to transmit the Bill for acceptance ; he may put it into circulation, 
 and if he- do not circulate it he may take a reasonable time to present it for 
 acceptance, and the keeping it even an entire day after he received it, and 
 a delay to present, until the fourth day, a Bill on London, given within 
 twenty miles thereof, is not unreasonable. In a late case it seems to have 
 been considered, that a distinction may be taken as to the nature of the 
 Bill, and whether it was intended for immediate payment, or to be kept 
 some time in circulation, as is the case of Bills after sight, drawn by coun- 
 try bankers on London bankers, and put in circulation by the former, 
 especially if the party objecting to the delay has himself kept the Bill in 
 his possession for some days." Mr. Bayley (pp. 236 - 243) says : " Upon a 
 Bill or Note, payable on demand or at sight, and given for cash by a per- 
 son who makes the profit by the money on such Bills or Notes a source of 
 his livelihood, it is difficult to say what length of time such person shall be 
 entitled tp consider unreasonable ; but, upon such Bills or Notes, given by 
 , way of payment, or paid into a banker's, any time beyond what the com- 
 mon course of business warrants is unreasonable. Upon a Bill or Note of 
 this kind, given by way of payment, the course of business seemed formerly 
 to allow the party to keep it, if payable in the place where it was given, 
 until the morning of the next day of business after its receipt ; and till the 
 next post if payable elsewhere ; but not longer. Thus, where a Note of 
 this kind, payable in Loudon, was given there in the morning, a present- 
 ment the next morning was held sufficiently early ; a presentment at two 
 the next afternoon too late. In a later modern case, where a similar Note 
 was given in London at one, and not presented till the next morning, three 
 juries held the delay unreasonable, but it was against the opinion of the 
 Court. But in a more recent case, where such a Note, payable in London, 
 was given in the country, it was held, that the person receiving it was not 
 bound to send it to London till the following day. And that the person 
 receiving it in London was not bound to present it till the next day. A 
 Bill or Note of this kind, given by way of payment to a banker, must be 
 presented by him as soon as if it had been paid into his hands by a custom- 
 er. And it has been held, that a Bill or Note of this kind, if payable at 
 the place where the banker lives, must be presented the next time the 
 banker's clerk goes his rounds. But, if a London banker receive a check 
 by the general post, he is not bound to present it for payment until the fol- 
 lowing day. And where a person in London received a check upon a 
 London banker, between one and two o'clock, and lodged it soon after four 
 with his banker, and the latter presented it between five and six, and got 
 it marked as a good check, and the next day at noon presented it for pay- 
 
256 PROMISSORY NOTES. [CHAP. VI. 
 
 sight, that there is no absolute rule as to the time in which 
 they should be presented for payment ; and that it must be 
 left to the judgment of the Court, whether the presentment 
 has been made within a reasonable time ; for it would not be 
 equitable that the holder should, by too long a delay, throw 
 the risk of the solvency of the drawee upon the drawer.^ 
 The present Commercial Code of France has positively fixed 
 the different periods, within which Bills, drawn at or after 
 sight, shall be presented for acceptance, varying the time ac- 
 cording to the different places where the Bills are drawn, and 
 the different places on which the Bills are drawn.^ It is 
 true, that the doctrine hei-e stated is applied by him in the 
 text solely to Bills of Exchange ; but it is equally applicable 
 to cases of Promissory Notes, and therefore is not separately 
 discussed, either by Pothier, or in the Code of Commerce.^ 
 By the law of Russia, Bills of Exchange are divided into two 
 sorts, one, where the Bill is drawn by the drawer on himself, . 
 the other, where it is drawn on some third person ; the 
 former is called simple, the other transmissible. The simple. 
 Bill seems exactly our Promissory Note.* By the same law, 
 a Bill payable at sight is payable twenty-four hours after its 
 presentment for acceptance ; if payable after sight, it falls 
 due after the last day indicated in the Bill, counting from the 
 day of presentment, which is not included.^ 
 
 ment at the clearing-house, the Court held that there had been no unrea- 
 sonable delay, either by the holder in not presenting it for payment on the 
 first day, which he might have done, or by his banker in presenting it at 
 the clearing-house only on the following day at noon ; it being proved to be 
 the usage among such bankers not to pay checks presented by one banker 
 to another after four o'clock, but only to mark them if good, and to pay 
 them the next day at the clearing-house." 
 
 ' Pothier, De Change, n. 143 ; Pardessus, Droit Comm. Tom. 2, art. 358. 
 
 ^ Code de Comm. Liv. 1, tit. 8, art. 160 ; Locre, Esprit du Code de Comm. 
 Tom. 1, Liv. 1, tit. 8, § 1, art. 160, pp. 499-502; Pardessus, Droit Comm. 
 Tom. 2, art. 358, 359 ; Story on Bills, § 232. 
 
 * See Code de Comm. art. 187. 
 
 ' Nouguier, De Change, Tom. 2, p. 504 ; art. 294 of Russian Code of 
 1832 ; Louis. Law Journ. vol. 1, p. 65. 
 
 ° Id. Tom. 2, p. 519, ch. 2, art. 350 ; Louis. Law Jour. p. 78. 
 
CHAP. VI.] PRESENTMENT FOR PAYMENT. 257 
 
 § 210. In our subsequent remarks, we shall refer alto- 
 gether to Promissory Notes, payable at a fixed period after 
 their date, unless some exceptions are specially stated. The 
 rule here is, that the Note must be presented on the very day 
 on which it becomes due, or arrives at maturity.^ This 
 also is the rule of the foreign law ; and, although it is gen- 
 erally laid down in terms applicable to Bills of Exchange, 
 it is equally applicable to Promissory Notes.^ 
 
 § 211. But the question will still remain : At what time is 
 a Note properly due, or when does it arrive at maturity ? 
 At first view, an uninstructed reader might imagine that 
 this could scarcely present any practical difficulties as to its 
 solution. Upon farther inquiry, however, it will be found 
 to involve questions of a highly important character, and 
 originally not without difficulty, although now the rule is 
 fixed and established beyond any reasonable controversy. 
 Let us, for example, suppose a Note to be drawn on the first 
 day of January, 1842, payable at ten days after date, without 
 grace. Is it due on the tenth day of January, or on the 
 eleventh day of January ? It is now settled that it is due on 
 the eleventh day of January, or, in other words, the day of 
 the date is excluded from the computation.^ The same ques- 
 tion might be propounded as to a Note payable ten days after 
 sight, without grace, and presented on the first day of Jan- 
 uary ; and it ought to receive a similar answer.* But it will 
 be found that, in other cases, not of a commercial nature, 
 great controversies have arisen at the Common Law, as to 
 
 » Story on Bills, §§ 325, 344 ; Chitty on Bills, ch. 9, p. 385 (Sth edit.) ; 
 Ante, § 201. Piscataqua Bank v. Carter, 20 N. H. 246. 
 
 ' Heinecc. De Camb. cap. 4, § 24 ; Pothier, De Change, n. 139, 172; 
 Code de Comm. art. 131-135, 161 ; Story on Bills, §§ 334, 338. 
 
 ' Chitty on Bills, ch. 9, pp. 403, 404, 406 (8th edit. 1833) ; Bayley on 
 Bills, ch. 7, § 1, pp. 248-250 (5th edit 1830) ; Bellasis v. Hester, 1 Ld. 
 Raym. 280 ; Coleman v. Sayer, 1 Barnard, 303 ; Blanchard v. Hilliard, 
 11 Mass. 85 ; Woodbridge v. Brigham, 12 Mass. 403 ; S. C, 13 Mass. 656 ; 
 Henry v. Jones, 8 Mass. 453 ; Ammidown v. Woodman, 31 Maine, 580. 
 
 * Supra, n. (4). 
 
 17 
 
258 PKOMISSOEY NOTES. [CHAP. VI. 
 
 the computation of the time when deeds and other instru- 
 ments are to hare effect and operation, whether from the 
 date, or from the day of the date thereof, or with refereniie 
 thereto, and whether the day of the date is to be taken as 
 exclusive or inclusive.^ 
 
 § 212. The French law recognizes the same doctrine, that 
 the time when a Note becomes due, if it is payable at a cer- 
 tain time after date, is to be calculated exclusive of the day 
 of the date of the Note. For it is the maxim of that law, 
 " Dies termini non computatur in termino" ; and this applies 
 not only as to the commencement, but also to the end, of the 
 time specified.^ 
 
 § 213. Again. Suppose a Note, drawn on the thirtieth 
 day of January, payable in a month, without grace ; how is 
 the month to be reckoned ? Is it a lunar month, or a calen- 
 dar month, or the period of thirty days ? By the Common 
 Law of England, a month is constantly deemed a lunar 
 month, as well in computations made in the construction of 
 statutes as in the construction of mere Common Law con- 
 tracts.^ But, by the universal rule of the commercial world, 
 including England and America, a month is now deemed, in 
 all cases of negotiable instruments, and, indeed, in all com- 
 mercial contracts, to be a calendar month.* Hence, in the 
 
 ^ See Pugh v. The Duke of Leeds, Cowp. 714 ; Glassington v. Rawlins, 
 3 East, 407 ; Lester v. Garland, 15 Ves. 254 ; Castle v. Burditt, 3 Term, 
 623 ; 4 Kent, Lect. 56, p. 95, note b (5th edit.). See Bigelow v. Willson, 
 1 Pick. 485 ; Presbrey v. Williams, 15 Mass. 193 ; Story on Bills, § 329. 
 
 * Delvincourt, Droit Comm. Tom. 1, Liv. 1, tit. 77 (2d edit.) ; Pothier, 
 De Change, n. 138. 
 
 ' Chitty on Bills, ch. 9, p. 406 (8th edit. 1833) ; 2 Black. Comm. 141 ; 
 Lacon V. Hooper, 6 Term, 225 ; Castle v. Burditt, 3 Term, 623 ; Catesby's 
 case, 6 Co. Rep. 62 ; Lang v. Gale, 1 M. & S. Ill ; in the matter of Swin- 
 ford and Horn, 6 M. & S. 226. 
 
 * Story on Bills, § 143 ; Bayley on Bills, eh. 7, § 1, pp. 247, 250 (5th edit. 
 1830) ; Chitty on Bills, ch. 9, pp. 403, 404 (8th edit. 1833) ; 4 Kent, Lect. 
 56, p. 95, note b (5th edit.) ; Jolly v. Young, 1 Esp. 186 ; Titus v. Lady 
 Preston, 1 Str. 652. In America, the computation has generally, but not 
 universally, been by calendar months, and not by lunar months, as well 
 
CHAP. VI.] PRESENTMENT FOB PAYMENT. 259 
 
 case above supposed, the Note will, without grace, be payable 
 on the last day of February, it being the day on which the 
 month will expire ; and no allowance will be made for the 
 fact that February may or does contain only twenty-eight 
 days.i A Promissory Note, therefore, dated on the first day 
 of January, and payable six months after date, or after sight, 
 without grace, will be payable on the corresponding day of 
 the sixth month, viz. the first day of July, for then the six 
 months will expire, whatever number of days the interme- 
 diate months may contain.^ 
 
 § 213 a. Other cases may be put, which involve more 
 nicety. Suppose a Note dated on the twenty-eighth, twenty- 
 ninth, thirtieth, or thirty-first day of January, payable in one 
 month ; on what day will it become due ? The true answer 
 will be, on the twenty-eighth of February, if the year is not 
 bissextile, and if it be, then on the twenty-ninth day of Feb- 
 ruary, and grace is to be calculated thereon from and after 
 the twenty-eighth or twenty-ninth day of February accord- 
 ingly.^ Suppose a Note dated on an impossible day, as the 
 thirty-first of September, payable in six months, it will be 
 deemed payable as if dated on the thirtieth day of September, 
 that is, it will be due on the thirtieth day of March,* and the 
 days of grace are to be added.^ So, if a Note is dated on the 
 twenty-eighth of February, payable in one month, it will be 
 due on the twenty-eighth of March, and, adding the days of 
 grace, on the thirty-first of March.^ If a Note is dated on 
 the twenty-ninth of February, in a bissextile year, payable in 
 one month, it will be due in like manner on the twenty-ninth 
 of March, and with grace on the first of April. If a Note is 
 
 in the construction of statutes as of common contracts. See Kent, Lect. 
 56, p. 95, note h (5th edit.) ; Hunt v. Holden, 2 Mass. 170 ; Avery v. Pix- 
 ley, 4 Mass. 460 ; Thomas v. Shoemaker, 6 Watts & Serg. 179. 
 
 1 Tassell v. Lewis, 1 Ld. Kaym. 743; 3 Kent, Lect. 44, pp. 102-104, 
 (5th edit.) ; Chitty on Bills, ch. 9, p. 406 (8th edit.). 
 
 ' Chitty on BiUs, ch. 9, 406 (8th edit.) ; Story on Bills, § 330. 
 
 ' Wagner v. Kenner, 2 Rob. (Louis.) 120. 
 
 * Ibid. ' Ibid. " Ibid. 
 
260 PROMISSORY NOTES. [CHAP. VI. 
 
 dated on the thirtieth of April, payable in one month, it will be 
 due on the thirtieth of May (and not on the thirty-first), and, 
 with grace added, on the second of June.^ So, a Note dated 
 on the twenty-ninth of August, payable in six months, will 
 be due, including days of grace, on the third of March fol- 
 lowing.^ So, a Note dated on the twenty-ninth of August, 
 payable in six months after date, will be due in common 
 years on the twenty-eighth day of February, and, including 
 grace, on the third day of March.^ In all these various cases, 
 the same general rule prevails, to construe the month as 
 meaning a calendar month, and to end the month with the 
 corresponding day of the succeeding month, if there be one ; 
 and if there be none, then to adopt the nearest day, by the 
 doctrine of cy-pres. Thus, if the date begins on the last 
 day of any month, whether it be on the twenty-eighth, the 
 twenty-ninth, the thirtieth, or the thirty-first day of that 
 month, then to end the succeeding month on the same day, 
 if there be one ; if there be none, to take the latest day of 
 the same month, as the nearest approximation thereto. The 
 rule is not an arbitrary one, but is deduced as the presumed 
 real intention of the parties. Of course, in this statement the 
 days of grace have been excluded from our consideration, in 
 order to simplify the illustration ; but practically they are to 
 be added in all the cases, to ascertain the actual time when 
 the Note becomes due. 
 
 § 214. As Notes, made in one country, are sometimes pay- 
 able in another, it becomes necessary here to advert, in a 
 brief manner, to the difference of style in different countries, 
 which may require, in the computation of time, a reference 
 to the style of -the country where the Note is made. Thus, 
 
 • Ibid. 
 
 « Wodd V. Mullen, 3 Rob. (Louis.) 399. 
 
 ' Ibid. 395. In Indiana it was held that the month of February, com- 
 mercially speaking, never has more than twenty-eight days, and a Note 
 dated February 3, 1860, payable in one hundred and twenty days, was pay 
 able on the 6th of June, and a demand on the 5th was premature. Kobler 
 V. Montgomery, 17 Ind. 220. 
 
CHAP. VI.] PRESENTMENT FOR PAYMENT. 261 
 
 for example, Russia continues to use the old style, although 
 all the other countries of Europe use the new. Under the 
 old style, the course of reckoning is according to the Julian 
 Calendar ; but under the new, it is according to the Gre- 
 gorian Calendar ; the difference between the two styles be- 
 ing, at the present time, twelve days ; that is to say, twelve 
 days are added to the time reckoned by the old style, to 
 bring the time to the corresponding day of the new style. 
 Thus, for example, if a Note is dated in Russia, on the first 
 day of January, 1842, old style, it precisely corresponds to 
 the thirteenth of January, 1842, according to the new style, 
 which is used in America and England, and, perhaps, all the 
 countries of Europe, except Russia ;i and, conversely, if a 
 Note is drawn in England, or America, dated on the first day 
 of January, 1842, the corresponding day in the old style is 
 the twentieth day of December preceding. Hence it is, that 
 if a Note be drawn in London, dated the first day of January, 
 1842, new style (that is, the twentieth day of December, old 
 style), payable at St. Petersburg (Russia) one month after 
 date (excluding all days of grace), it will, if accepted, be 
 payable, not on the first day of February, 1842, but on the 
 twentieth day of January, 1842, for that is the corresponding 
 day, when the month expires, by the old style. On the other 
 hand, if a Note is drawn in St. Petersburg, dated the first 
 day of January, 1842, payable in London, in one month after 
 date, without grace, it will, if accepted, be payable, not on 
 the first day of February, but on the thirteenth day of Feb- 
 ruary, 1842, and, if payable with grace, on the third or last 
 day of grace, after that day.^ 
 
 * See Kyd on Bills, p. 7 (3d edit.) ; Marius on Bills," pp. 22, 23 (edit. 
 1794). 
 
 ' Bayley on Bills, eh. 7, § 1, p. 249 (Sth edit. 1830) ; Chitty on Bills, 
 ch. 9, p. 403 (Sth edit. 1833) ; Beawes, Lex Merc, by Chitty, vol. 2, p. 608 
 (edit. 1813). Mr. Chitty says, " When a Bill is drawn at a place using 
 one style, and payable on a certain day, at a place using another, the time 
 when the Bill becomes due must be calculated according to the style of 
 the place where it is payable ; because the contract, created by the making 
 
252 PROMISSORY NOTES. [OHAP. VI. 
 
 § 215. But, besides these elements in the computation of 
 the time at which Promissory Notes become due and paya- 
 
 of a Bill of Exchsiiige, is understood to have been made at that place, and, 
 consequently, should be construed according to the laws of it. In other 
 works it is laid down, that, upon a Bill drawn at a place using one style, 
 and payable at a place using another, if the time is to be reckoned from the 
 date, it shall be computed according to the style of the place at which it is 
 drawn, otherwise, according to the style of the placd where it is payable ; 
 and, in the former case, the date must be reduced or carried forward to the 
 style of the place where the Bill is payable, and the time reckoned from 
 thence. Thus, on a Bill dated the 1st of May, old style, and payable here 
 two months after, the time must be computed from the corresponding day 
 pf May, new style, namely, the 13th of May ; and, on a Bill dated the 1st of 
 May, new style, and payable at St. Petersburg, two months after date, from 
 the corresponding day of April, old style, namely, the 1 9th of April." Chit- 
 ty on Bills, ch. 9, p. 403 (8th edit. 1833) ; Bayley on Bills, oh. 7, § 1, p. 249 
 (5th edit. 1830), lays down the latter position in the same language. In 
 the earlier editions of both works, the reverse mode of computation of the 
 time, under the old and new styles, was, by mistake, given. See also Kyd 
 on Bills, ch. 1, pp. 7, 8 (3d edit.) ; Story on Bills, § 331. Marius, who first 
 published his work on Bills of Exchange in 1651, on this subject, says (pp. 
 22, 23, edit. 1794) : " A Bill of Exchange, dated the 2d of March, new 
 style, which is the 20th of February, old style (except in leap year, which is 
 the 21st of February), payable in London at double usance, will be due 
 the 22d of April, old style, and not the 20th of April, as some do erroneously 
 imagine, who would deduct the ten days (to reduce the new style to old 
 style) at the end of the double usance, and so they would go as far as the 
 second of May, new style, and then go backwards ten days, when of right 
 they should go forwards from the date of old style, relating to the place 
 where it is payable, and reckon the double usance from the very date of 
 the Bill, thus : A Bill dated the 2d of March, new style, is the 20th of 
 February, old style, February having but twenty-eight days (for the 
 20th of February, old style, is the 2d of March, new style, even to the very 
 day of the week), so from the 20th of February to the 23d of March is one 
 usance, and from the 23d of March to the 22d of April there is another 
 usance ; and so, in like manner, if a Bill of Exchange be dated the 1 0th of 
 March, new style, which is the last of February, old style, payable at a 
 treble usance, such a Bill will be due the last of May in London, and not 
 the 28th of May, as some do imagine, because February hath but twenty- 
 eight days. Also, if a Bill be dated the 8th of January, in Rouen, payable 
 at double usance in London, it will fall due the 26th of February, and if 
 from tha* date payable at treble usance, it will fall due the 29th of March, 
 as is manifest by the almanac, or table at the end of this book ; for you 
 
CHAP. VI.] PRESENTMENT FOR PAYMENT. 263 
 
 ble, there is another allowance of time, which is of general, 
 aUhough not of universal, operation and usage, and is differ- 
 ent in different countries.^ This is, the allowance of what 
 
 must always count your- usances from the very date of the Bill, as I have 
 made evidently appear by what hath been before declared concerning 
 usances ; and I have seen divers Bills of Exchange which have been sent 
 from beyond the seas, wherein the drawers have written the old and new 
 style both together in the date of their Bills, one above another, thus : — 
 
 Amsterdam adj. 3-13 February 16 64-55 for £200 sterling. 
 
 Middleborough adj. 15-25 March 16 54-55 for £150 sterling. 
 
 Adj. 17 March, ~) 1655, in Genoa dollars, 245 at 57 rf. 
 6 April, ) £58 3s. Sd. sterling. 
 And the like, which is very plain and commendable in those that do so 
 write, thereby to make things evident to the capacity of the weakest, and 
 to avoid any further disputes thereupon, although in those Bills of Ex- 
 change, where the old and new styles are not positively expressed, yet the 
 same thing is intended and meant, and ought to be understood as if partic- 
 ularly set down ; for if you have the date in new style, you may soon see 
 what date it is in old style. And I have taken the more pains to make 
 this out to every man's understanding, because I do perceive that many 
 men for their own advantage, and in their own case, are subject to be bi- 
 assed, and judge amiss ; but I conceive I have herein so clearly evidenced 
 the truth and reason of my opinion, that it cannot but convince those that 
 are, or have been, of a contrary judgment,, of their error and mistake, 
 except they are wilfully blind, and then none so blind ; or, that they can 
 give me any better reason for their contrary opinion, and then I will sub- 
 mit unto them ; for all Bills of Exchange (as I have said before, and is 
 notoriously known and assented unto by all), which are made payable at 
 usances, must be reckoned directly from the date of the Bill, which, if it 
 be new style, and payable in London, or any other place where they write 
 old style, the date must first be found out in the old style, and then count 
 forward, and you cannot mistake." 
 
 ' Heineccius, on this subject says : " Quamvis vero id tempus vooari 
 soleat tempus fatale solutionis : quibusdam tamen locis etiam elapso illo 
 tempore, quod in cambio expressum est, acceptanti dari solent inducise ali- 
 quot dierum, e. gr. trium, quatuor, quinque, sex, qui vocantur Respitvel 
 Discretiones-Tage, nee non Nach-vel Ehren-Tage, de quibus singularem in 
 hac Academia dissertationem scripsit lo. Christoph. Frankius. Hse inducise 
 in terris Brandenburgicis sunt trium dierum, O. C. Brandenb. art. 24 ; in 
 Saxonia vero ob fidem mercatorum vacillantem plane sunt abolitse." By 
 the Code of Russia of 1832, a Bill of Exchange, payable so many days or 
 months after date, falls due after the expiration of the last day. Nouguier, 
 De Change, Tom. 2, p. 519 ; Code of Russia, art. 351 ; Louis. Law Journ. 
 vol. 1, p. 78 (1842). 
 
264 PROMISSORY NOTES. [CHAP. YI. 
 
 are technically called the days of grace ; to which, incident- 
 ally, allusion has been already made.^ These days of grace, 
 which take their name from their being days of indulgence, or 
 respite, granted to the maker for the payment of the Note, 
 seem to have had their origin at a very early period in the 
 history of negotiable paper. They were, probably, original- 
 ly introduced by the usage of merchants, in the first place, 
 to enable the acceptor of a Bill the more easily to make pay- 
 ments of his acceptances, as they became due, which, as the 
 payments were all to be made in gold and silver, might some- 
 times, from the occasional scarcity of the precious metals, 
 become a matter of no small difficulty and embarrassment ; 
 and, in the next place, to point out to the holder, what time 
 he might reasonably grant to the acceptor for such payment, 
 without being guilty of laches, or endangering his right of 
 recourse, upon the ultimate non-payment of the Bill by the 
 acceptor, against the other parties thereto.^ In both views, 
 
 ' Ante, § 170 ; Story on Bills, §§ 155, 170, 177 ; Chitty on Bills, eh. 9, 
 p. 407 (Sth edit. 1833) ; Heinecc. de Camb. cap. 2, §§ 13, 14. 
 
 = Mr. Chief Justice Marshall, in Ogden v. Saunders, 12 Wheat. 213, 342, 
 speaking on this subject, as applicable to 'Promissory Notes, says: "The 
 usage of banks, by which days of grace are allowed on Notes payable and 
 negotiable in bank, is of the same character. Days of grace, from their 
 very term, originate partly in convenience, and partly in the indulgence of 
 the creditor. By the terms of the Note, the debtor has to the last hour of 
 the day on which it becomes payable to comply with it ; and it would often 
 be inconvenient to take any steps after the close of the day. It is often 
 convenient to postpone subsequent proceedings till the next day. Usage has 
 extended this time of grace generally to three days, and in some banks to 
 four. This usage is made a part of the contract, not by the interference of 
 the Legislature, but by the act of the parties. The case cited from 9 Wheat. 
 581, is a Note discounted in bank. In all such cases the bank receives, and 
 the maker of the Note pays, interest for the days of grace. This would be 
 illegal and usurious if the money was not lent for these additional days. 
 The extent of the loan, therefore, is regulated by the act of the parties, 
 and this part of the contract is founded on their act. Since, by contract, 
 the maker is not liable for his Note until the days of grace are expired, he 
 has not broken his contract until they expire. The duty of giving notice 
 to the indorser of his failure does not arise until the failure has taken place ; 
 and, consequently, the promise of the bank to give such notice is per- 
 formed if it be given when the event has happened." 
 
CHAP. VI.] PRESENTMENT FOE PAYMENT. 265 
 
 the usage was, at first, probably discretionary and voluntary 
 on the part of the holder, and gradually, from its general 
 convenience and utility, it ripened into a positive right, 
 as it certainly now is, and was also applied to Promissory 
 Notes. 1 
 
 ' Bell, Comm. B. 3, ch. 2, § 4, p. 410 (5th edit.) ; Kyd on Bills, ch. 1, 
 pp. 9, 10 (3d edit.) ; Chitty on Bills, ch. 9, p. 407 (8th edit. 1833) ; 
 Heineoo. de. Camb. cap. 2, § 14. Mr. Kyd (on Bills, ch. 1, p. 9, 3d edit.) 
 gives the old rule or usage, as the days of grace in different countries, thus : 
 " A custom has obtained among merchants, that a person to whom a Bill is 
 addressed shall be allowed a little time for payment, beyond the term men- 
 tioned in the Bill, called days of grace. But the number of these days 
 varies according to the custom of different places. Great Britain, Ireland, 
 Bergamo, and "Vienna, three days ; Frankfort, out of the time of the fair, 
 four days ; Leipsio, Naumburg, and Augsburg, five days ; Venice, Amster- 
 dam, Rotterdam, Middleburg, Antwerp, Cologne, Breslau, Nuremberg, and 
 Portugal, six days ; Dantzic, Konigsberg, and France, ten days ; Hamburg 
 and Stockholm, twelve days; Naples, eight; Spain, fourteen; Bome, 
 fifteen; and Genoa, thirty days; Leghorn, Milan, and some other places in 
 Italy, no fixed number. Sundays and holidays are included in the respite 
 days at London, Naples, Amsterdam, Rotterdam, Antwerp, Middleburg, 
 Dantzic, Konigsberg, and France; but not at Venice, Cologne, Breslau, 
 and Nuremberg. At Hamburg, the day on which the Bill falls due makes 
 one of the days of grace ; but it is not so elsewhere." ■ Mr. Chitty (Chitty 
 on Bills, ch. 9, pp. 407, 408, 8th edit. 1833) gives the more modern rule or 
 usage thus : " The number of these days varies, according to the ancient 
 custom or express law prevailing in each particular country. In the former 
 edition of this work was given a table of the days of grace allowed in the 
 time of Beawes ; but various alterations were introduced by the Code of 
 Napoleon, and therefore the following table, acknowledged to be the most 
 accurate, is substituted : — 
 Altona. Sundays and holidays included, and Bills falling due ■) 
 
 on a Sunday or holiday must be paid, or, in default thereof, >- 12 days. 
 
 protested, on the day previous ) 
 
 America 3 days. 
 
 Amsteigfiam. Abolished since the Code Napoleon . . none. 
 
 Antwerp. Ditto none. 
 
 Berlin. When Bills, including them, do not fall due on a Sun- -j 
 
 day or holiday ,^in which case they must be paid or protested y 3 days. 
 
 the day previous ) 
 
 Brazil. Rio Janeiro, Bahia, including Sundays, &c. as in the 
 
 last case 15 days. 
 
 England, Scodandi Wales, and Ireland .... 3 days. 
 
266 
 
 PEOMISSOEY NOTES. 
 
 [chap. VI. 
 
 '■\ 
 
 ■ 4 days. 
 
 none. 
 
 12 days. 
 
 3 days. 
 
 none. 
 
 6 days or 
 15 days. 
 
 § 216. In respect to the allowance, or non-allowance, of 
 days of grace, the rule is, that it is to be governed altogether 
 
 France. Abolished by the Code Napoleon, Liv. 1, tit. 8, § 5, 
 pi. 135 ; 1 Pardessus, 189. Ten days were formerly allowed. 
 Pothier, pi. 14, 15 
 
 Frankfort on the Main. Except on Bills drawn at sight, Sun- 
 days and holidays not included 
 
 Genoa. Abolished by the Code Napoleon .... 
 
 Hamburg. Same as Altona 
 
 Ireland 
 
 Leghorn 
 
 Lisbon and Oporto. 15 days on local, and 6 on foreign Bills; 
 but, if not previously accepted, must be paid on the day they 
 fall due 
 
 Palermo 
 
 Petersburg. Bills drawn after date are entitled to 10 days' 
 grace, those drawn at sight, to only 3 days', and those at any 
 number of days after sight, none whatever. But Bills, re- 
 ceived and presented after they are due, are, nevertheless, 
 entitled to 10 days' grace. In these days of grace are includ- 
 ed Sundays and holidays, also the day when the Bill falls due, 
 on which days they cannot be protested for non-payment; 
 but on the morning of the last day of grace payment must be 
 demanded, and, if not complied with, the Bill must be pro- 
 tested before sunset 
 
 Rotterdam. Abolished by the Code Napoleon . 
 
 Scotland 
 
 Spain. Vary in different parts of Spain ; generally, 14 days " 
 on foreign, and 8 on inland Bills ; at Cadiz, only 6 days' grace. 
 When Bills are drawn at a certain date, fixed or precise, no 
 days of grace are allowed. Bills drawn at sight are not en- 
 titled to any days of grace ; nor are any Bills, unless accepted 
 prior to maturity 
 
 Trieste. 3 days on Bills drawn after date, or any term after 
 sight, not less than 7 days, or payable on a particular day ; 
 but Bills presented after maturity must be paid within 24 
 hours. Sundays and holidays are included in the days of 
 grace ; and if the last day of grace fall on such a day, pay- 
 ment must be made, or the Bill protested, on the first follow- 
 ing open day ' . 
 
 Venice. 6 days, in which Sundays, holidays, and the days 
 when the bank is shut, are not included ... 
 
 Vienna. Same as Trieste 
 
 Wales 
 
 10 days, 
 3, &c. 
 
 none. 
 3 days. 
 
 14 days, 
 but vary. 
 
 8 days. 
 
 6 days. 
 
 3 days. 
 S days." 
 
CHAP. VI.] PRESENTMENT FOR PAYMENT. 267 
 
 by the law of the place where the Promissory Note is paya- 
 ble.i Thus, for example, if the Note is payable in France, 
 where, by the present Code of Commerce, no days of grace 
 are allowed, the Note becomes due at the regular expiration 
 of the time stated on the face of the Note, and no days of 
 grace are allowable.^ On the other hand, if the Note is pay- 
 able in England, then the full days of grace are allowed, ac- 
 cording to the law of England ; and the like rule prevails as 
 to all other countries.^ Indeed, it may be laid down as a 
 general rule, that the law of the place, where a Note is pay- 
 able, is to govern, not only as to the time, but as to the mode 
 of presentment for payment.* 
 
 § 217. Although the days of grace are different in differ- 
 ent commercial countries, and are to be computed according 
 to the law of the place where the Note is payable,^ yet, in 
 most, although not in all of them, the same general rule pre- 
 vails, that they are to be calculated exclusive of the day 
 when the Note would otherwise become due.^ Thus, for ex- 
 ample, if a Note is drawn in America or England on the first 
 day of January, payable, in either country, one month after 
 date, the days of grace (which, as we have seen, are three 
 days) will begin on the second day of February, and end on 
 the fourth day of February .^ On the other hand, if a Note 
 
 ' Bell, Coram. B. 3, eh. 2, § 4, p. 4H (5th edit.) ; Goddin v. Shipley, 7 
 B. Mun. 597. 
 
 = Code de Coram, art. 135 ; Story on Bills, §§ 155, 177. 
 
 ' Pardessus, Droit Coram. Tom. 5, art. 1489, 1495, 1498 ; Pothier, De 
 Change, n. 155, 172, 187; Chittyon Bills, eh. 9, p. 409 (8th edit. 1833) ; 
 Kyd on Bills, eh. 1, p. 9 (3d edit.). 
 
 ' Ibid. 
 
 * Story on Bills, §§ 155, 170; Story on Conflict of Laws, §§ 316, 347, 
 361 ; Pothier, De Change, n. 155 ; Pardessus, Droit Comm. Tom. 5, art. 1495 ; 
 Chittyon Bills, ch. 9, pp. 406 - 409 (8th edit. 1833). 
 
 = See Kyd on Bills, p. 9 (3d edit.) ; Beawes, Lex Merc. Bills of Ex- 
 change, pi. 260; ante, § 211. 
 
 ' Ante, §§ 211, 213 ; Story on Bills, § 332 ; Chittyon Bills, ch. 9, pp. 403, 
 404, 406, 409, 412 (8th edit. 1833); Bayley on Bills, ch. 7, § 1, pp. 245,, 
 249, 250 (5th edit. 1830) ; -Pothier, De Change, n. 14, 15, 139, 172, 187; 
 
268 PROMISSORY NOTES. [CHAP. VI. 
 
 was drawn in America or England on the first day of Janu- 
 ary, payable, in either country, at thirty days after date, the 
 days of grace would begin on the first day of February, and 
 end on the third day.^ In other words, in each case, the 
 
 Sautayra, Sur Code de Comm. art. 131, 132; Mitchell v. Degrand, 1 Mason, 
 176 ; 1 Bell, Comm. B. 3, ch. 2, § 4, pp.410, 411 (5th edit.). Mr. Chitty 
 says : " At Hamburg, the day on which the Bill falls due makes one of the 
 days of grace ; but it is not so elsewhere." Chitty on Bills, ch. 9, p. 409 
 (8th edit. 1833) ; 1 Selwyn, Nisi Prius, p. 351, note (10th edit. 1842). 
 
 » ^nie, §§ 211, 213; Story on Bills, §§ 177, 333; Pothier, De Change, 
 n. 139, 172; Chitty on Bills, ch. 9, p. 406 (8th edit. 1833) ; Bayleyon Bills, 
 ch. 7, § 1, pp. 245-247, 249, 250 (5th edit. 1830) ; Sautayra, Sur Code 
 de Comm. art. 131, 132. Mr. Chitty says: "When Bills, &c. are payable 
 at one, two, or more months, after date or sight, the mode of computing 
 the time when they become due differs from the mode of computation in 
 other cases. In general, when a deed or act of Parliament mentions a 
 month, it is construed to mean a lunar month, or twenty-eight days, unless 
 otherwise expressed ; but, in the case of Bills and Notes, and other mer- 
 cantile contracts, the rule is otherwise, and, by custom of trade, when a 
 Bill is made payable at a month or months after date, the computation must, 
 in all cases, be by calendar, and not by lunar months ; thus, when a Bill is 
 dated the first of January, and payable at one month after date, the month 
 expires on the 1st of February, and, with the addition of the days of grace, 
 the Bill is payable on the 4th of February, unless that day be a Sunday, 
 and then on the 3d. When one month is longer than the succeeding one, 
 it is said to be a rule not to go, in the computation, into a third month ; 
 thus, on a Bill dated the 28th, 29th, 30th, or 31st of January, and payable 
 one month after date, the time expires on the 28th of February, in common 
 years, and, in the three latter cases, in leap year, on the 29th. When the 
 time is computed by days, the day on which the event happens is to be 
 excluded." Chitty on Bills, ch. 9, p. 406 (8th edit. 1833). Again, Mr. 
 Chitty, p. 412, adds: " From these inquiries into the mode of calculating 
 time and usances, and days of grace, in relation to Bills, the day of the 
 date of the Bill or Note, or, in the case of Bills after sight, the day of ac- 
 ceptance, is always to be excluded, and the usance, or calendar month, or 
 weeks, or days, are to be calculated from, and exclusive of such days ; and, 
 with the exception of Hamburg, the days of grace begin the day after the 
 usances or months expire, and, if the last of the days of grace fall on a 
 Sunday, Christmas Day, Good Friday, or legal Fast, or Thanksgiving Day, 
 the Bill or Note is due, and must be presented, on the day before. Thus, 
 if a Bill be dated the 2d of November, 1831, and be payable in England, 
 at two months after date, they expired on the 2d of January; 1832 ; and, 
 adding the three days of grace, the Bill fell due on the 5th of that 
 month, and must be then presented." Story on Bills, §§ 143, 144, 330. 
 
CHAP. VI.] PRESENTMENT FOR PAYMENT. 269 
 
 time of running of the Note is calculated exclusive of rthe 
 day of its date.^ The same rule would apply to a Note, 
 drawn payable at a certain number of days after sight ; for 
 the time would begin to run only from the presentment 
 thereof, and exclusive of that day, and the days of grace 
 would be allowable accordingly.^ 
 
 § 218. Pothier states the rule of the old French law to be 
 the same, as to the calculation of the days of grace.^ We 
 have already seen, that, by the modern Commercial Code of 
 France, the allowance of any days of grace is totally abro- 
 gated.* But still, in France, the time when a Bill or Note 
 becomes due, if it is payable at a certain number of days 
 after its date or after sight, or at one or more usances, if 
 it is accepted, is (as we have seen)^ always calculated excla- 
 sively of the day of the date, or the sight of the Bill or Note ; 
 so that, if the date, or sight, and the acceptance, be on the 
 first day of January, and the Bill be payable in thirty days, 
 it becomes payable on the thirty-first day of January, and 
 not before.^ 
 
 § 219. In respect to the days of grace, also, another rule, 
 
 1 Ibid. 
 
 2 Bayley on Bills, ch. 7, § 1, pp. 244, 248, 250 (5th edit. 1830) ; Chitty 
 on Bills, ch. 9, pp. 406, 409 (8th edit. 1833) ; Sturdy v. Henderson, 4 B. & 
 Aid. 592. Mr. Chitty says : " When a Bill or Note purports to be payable 
 so many days after sight, the days are computed from the day the Bill was 
 accepted, or the Note presented, exclusively thereof, and not from the date 
 of the Bill or Note, or the day the same came to hand, or was presented for 
 acceptance; for the sight must appear in the legal way, which is, either by 
 the parties accepting the Bill, or by protest for non-acceptance. And in 
 the case of a bank Post Bill, which is really a Promissory Note, and, in case 
 of a Note payable after sight, though the maker has sight of the instrument, 
 when he makes it, yet a distinct and subsequent presentment must after- 
 wards be made, and the time of payment is reckoned from the day of pre- 
 sentment, exclusive thereof." Chitty on Bills, ch. 9, pp. 406, 407 (8th edit. 
 1833) ; Story on Bills, § 330. 
 
 ' Pothier, De Change, n. 137 139, 172. 
 
 * Code de Comm. art. 135 ; Pardessus, Droit Comm. Tom, 2, art. 401 ; 
 ante, § 216. 
 ' Ante, § 212 ; Story on Bills, § 332. 
 ° Sautayra, Sur Code de Comm. art. 131, 132. 
 
270 PKOMISSORY NOTES. [CHAP. VI. 
 
 eqiially important, seems generally, although not universal- 
 ly, to pervade all commercial countries in modern times. It 
 is, that the days of grace are to be all counted consecutively 
 and in direct succession, without any deduction or allowance 
 on account of there being any Sundays, or holidays, or other 
 non-secular days, intermediate between the first and the last 
 day of grace.^ Thus, if the first day of grace should be on a 
 Saturday, the last day, under our law, would be on Monday, 
 making no allowance whatsoever for Sundays, which, in some 
 other cases, (as we have seen,) as, with reference to the 
 times of giving notice of the dishonor of a Note, is always 
 excluded from the computation of diligence.'^ The old French 
 law, in like manner, included Sunday, and other holidays, in 
 the computation of the days of grace .^ 
 
 § 220. But, although the days of grace are never pro- 
 tracted by the intervention of Sundays, or any other holi- 
 days, yet they are, on the other hand, by our law, liable to 
 be contracted and shortened by the last day of grace falling 
 on a Sunday, or other holiday.* For, whenever the last day 
 of grace occurs on a Sunday, or other holiday, the Note be- 
 comes due and payable, not on the succeeding day, but on the 
 preceding day.^ In other words, the latest business day oc- 
 
 ' Pothier, De Change, a. 139 ; Bayley on Bills, ch. 7, § 1, pp. 245-250 (5th 
 edit. 1830) ; Chitty on Bills, ch. 9, pp. 406, 410-412 (8th edit. 1833) ; Story 
 on Bills, §§ 233, 234. Mr. Chitty says : " In Great Britain, Ireland, (and in 
 Amsterdam, Eotterdam, Antwerp, Middleburg, Dantzic, and Konigsbeig, 
 whilst days of grace were allowed in those places,) Sundays and holidays 
 are always included in the days of grace, unless the last ; but not so at 
 Venice, Cologne, Breslau, and Nuremberg." Chitty on Bills, ch. 9, pp. 411, 
 412 (8th edit. 1833). In America, the same rule prevails as in England. 
 In America, the 4th of July is treated as a holiday. Cuyler v. Stevens, 4 
 Wend. 566 ; Ransom v. Mack, 2 Hill, 587, 592; Lewis v. Burr, 2 Cain. 
 Cas. in Error, 195. 
 
 ' Story on Bills, §§ 233, 234. 
 
 ^ Pothier, De Change, n. 139, 152. 
 
 * See Adams w. Otterback, 15 How. (U. S.) 539, as to usage. 
 
 ' Bayley on Bills, ch. 7, § l,pp. 247, 248 (5th edit. 1830) ; 1 Bell,Comm. 
 B. 3, ch. 2, § 4, pp. 410, 411 (5th edit.) ; Chitty on Bills, ch. 9, pp. 410- 
 412 (8th edit. 1833) ; Ransom v. Mack, 2 Hill, 587 ; Story on Bills, 233 ; 
 
CHAP. VI.] PEESENTMENT FOE PAYMENT. 271 
 
 curring within the days of grace is deemed the day on which 
 the Note is due and payable ; and the grace then expires.^ 
 
 Sheppard v. Spates, 4 Maryland, 400 ; Homes u. Smith, 20 Maine, 264. 
 On this subject Mr. Chitty says: " In this country, at Common Law, if the 
 day on which a Bill would otherwise be due falls on a Sunday, or great 
 holiday, as Christmas Day, the Bill falls due on the day before; and, where 
 a third day of grace falls on a Sunday, the Bill must be presented on Sat- 
 urday, the second day of grace ; whereas, otherwise, a presentment on a 
 second day of gi-ace, being premature, would be a nullity. And, by 39 & 
 40 Geo. 3, ch. 42, § 1, where Bills of Exchange and Promissory Notes 
 iaecome due and payable on Good Friday, the same shall, from and after 
 the 1st day of June (1800), be payable on the day before Good Fri- 
 day ; and the holder or holders of such Bills of Exchange, or Promissory' 
 Notes, may note and protest the same for non-payment on the day preced- 
 ing Good Friday, in like manner as if the same had fallen due and become 
 payable on the day preceding Good Friday ; and such noting and protests 
 shall have the same eflfect and operation at law, as if such Bills and Prom- 
 issory Notes had fallen due and become payable on the day preceding Good 
 Friday, in the same manner as is usualin cases of Bills and Notes coming due 
 on the day before any Lord's Day, commonly called Sunday, and before the 
 feast of the Nativity, or birthday of our Lord, commonly called Christmas 
 Day. So, with regard to Fast days, it is enacted by 7 & 8 Geo. 4, ch. 15, 
 § 2, that, from and after the 10th day of April, 1827, in all cases, where 
 Bills of Exchange or Promissory Notes shall become due and payable on 
 any day appointed by his Majesty's proclamation for a day of solemn fast, 
 or a day of thanksgiving, the same shall be payable on the day next pre- 
 ceding such day of feist or day of thanksgiving ; and, in case of non-pay- 
 ment, may be noted and protested on such preceding day ; and that, as 
 well in such oases, as in the cases of Bills of Exchange or Promissory Notes, 
 becoming due and payable on the day preceding any such day of fcist, or day 
 of thanksgiving." Chitty on Bills, ch. 9, pp. 410, 411 (8th edit. 1833) ; 
 Bussard v. Levering, 6 Wheat. 102, 
 
 ^ See Howard v. Ives, 1 Hill, 263; Wooley v. Clements, 11 Ala. 220. It 
 is said that a different rule prevails in respect to contracts not negotiable, 
 and contracts where no days of grace are allowed; and therefore, if a 
 common contract falls due on Sunday, the party has until the following 
 Monday to perform it. Salter v. Burt, 20 Wend. 205. In this case, Mr. 
 Justice Bronson, in delivering the opinion of the Court, said : " This check, 
 having been post-dated, was payable on the day of its date, without any 
 days of grace. Mohawk Bank v. Broderick, 10 Wend. 304 ; 13 Wend. 
 133. It fell due on Sunday, and the question is, whether the demand of 
 payment was well made on the previous Saturday ; or, whether it should 
 have been made on the following Monday. When days of grace are allowa- 
 
272 PROMISSORY NOTES. [CHAP. VI. 
 
 Thus, if the last day of grace is on Sunday, the Note is due 
 and payable, and the grace expires on the preceding Satur- 
 day. And, if two holidays should succeed each other, as 
 Sunday, on the twenty-fourth of December, and Chi-istmas, 
 on the twenty-fifth of December, the Note would be due and 
 payable on the preceding Saturday, the twenty-third of De- 
 cember.^ 
 
 § 221. The same rule prevails in Prance ; for, if a Bill or 
 Note become payable at a great fete, or a fixed holiday, or 
 Sunday, payment is demandable the day before.^ Pothier 
 seems to have thought that the old French law allowed some 
 distinction in cases of this sort. If the day of the maturity 
 of the Bill or Note should fall on Sunday, he admits that a 
 demand might be made on the preceding day ; and, if pay- 
 ment be then absolutely refused, the holder may protest the 
 Bill or Note. But, if the acceptor or mater should answer, 
 that he would pay the next day, and not refuse absolutely, 
 then the liolder is bound to present it again for payment on 
 
 ble on a Bill or Note, and the third day falls on Sunday, the Bill or Note 
 is payable on the previous Saturday. The same custom of merchants, 
 which, as a general rule, allows three days of grace to the debtor, has lim- 
 ited that indulgence to two days, in those cases where the third is not a day 
 for the transaction of business. But, when there are no days of grace, and 
 the time for payment or performance, specified in the contract, falls on a 
 Sunday, the debtor may, I think, discharge his obligation on the following 
 Monday. This question was very fully considered in Avery v. Stewart, 2 
 Conn. 69, which was an action on a Note, not negotiable, which fell due on 
 Sunday ; and the Court held, that a tender on Monday was a good bar to 
 the action. I agree to the doctrine laid down by Gould, J., that Sunday 
 cannot, for the purpose of performing a contract, be regarded as a day in 
 law, and should, as to that purpose, be considered as stricken from the cal- 
 endar. In computing the time, mentioned in a contract, for the doing of 
 an act, intervening Sundays are to be counted ; but, when the day for per- 
 formance falls on Sunday, it is not to be taken into the computation. The 
 check was presented before it became payable, and the demand and notice 
 were consequently insufficient to charge the indorser." 20 Wend. 206, 207. 
 But see Kilgour v. Miles, 6 Gill. & John. 268. 
 
 » Bayley on Bills, ch. 7, § 1, pp. 247, 248. 
 
 ' Chitty on Bills, ch. 9, p. 411 (8th edit. 1833) ; Code de Comm. art. 133, 
 134. 
 
CHAP. VI.J PEESENTMENT FOR PAYMENT. 273 
 
 the day of its maturity, although it is Sunday ; and, if pay- 
 ment is then made, it is sufficient ; if not then made, a sec- 
 ond protest should be made.^ But of this some doubt has 
 been entertained in Prance. Heineccius lays down the rule, 
 prevailing in Germany, to be, that in such a case the de- 
 mand of payment should be on the next succeeding day. 
 " Si in diem feriatum iuci'dit solutionis dies, nee acceptans in- 
 vitus solvere tenetur, nee prsesentans solutionem urgere, vel 
 protestationem interponere potest, sed expectandus est dies 
 sequens." ^ And he traces this doctrine back to the time of 
 Justinian, by whose Code holidays, and days of public festi- 
 vals, were prohibited from being days for the transaction of 
 secular business.^ 
 
 § 222. And respect is paid, not only to the public holidays, 
 and religious fasts and festivals of the country, where the 
 Note is due and payable, as non-secular days, but also to the 
 religious opinions and usages of the particular sect to which 
 the maker belongs. A case may occur in England or Amer- 
 ica, where a Note may be due and payable without the allow- 
 ance of any of the three days of grace. Thus, for example , 
 
 ^ Pothier, De Change, n. 140. 
 
 ^ Heinecc. de Camb. cap. 4, § 41. 
 
 ' Ibid., note. The passage in the Code is : " Dies festos majestati altissimaa 
 dedieatos, nuUis volumas voluptatibus occupari, nee ullis exactionum vexa- 
 tionabus profanari. Domiuioum itaque diem ita semper "honorabilem de- 
 cernimus, et venerandum, ut a, cunctis executionibus exousetur; nulla 
 quemquam urgeat admonitio ; nulla fidejussionis flagitetur exactio ; taceat 
 apparitio ; advocatio delitescat ; sit ille dies a cognitionibus alieuus ; prse- 
 conis horrida vox silesoat ; respirent a controversiis litigantes, et habeant 
 foederis intervallum ; ad sese simul veniant adversarii non timentes, subeat 
 animos vicaria poenitudo ; pacta conferant, transaotiones loquantur. Nee 
 hujus tamen religiosi diei otia relaxantes, obsccenis quemquam patimur vo- 
 luptatibus detiueri. Nihil eodem die sibi vindieet scena theatralis, aut Cir- 
 cense certamen, aut ferarum lachrymosa spectacula ; et, si in nostrum or- 
 tum, aut natalem celebranda solennitas incident, difl'eratur. Amissionem 
 militia;, proscriptionemque patrimonii sustinebit, si quis unquam hoc die fes- 
 to spectaculis interesfe, vel cujuscunque judiois apparitor prsetextu negotii 
 publici, seu privati, hsec, quse hac lege statuta sunt, crediderit temeranda." 
 Lib. 3, tit. 12, 1. 11. 
 
 18 
 
274 PEOMISSOEY NOTES. [CHAP. VI. 
 
 if the first day of grace sliould be on Saturday, and Monday 
 should be Christmas Day, and the maker should be a Jew, by 
 whose religious usages abstinence from all secular business 
 is enjoined on Saturdays, the Note would (it is presumed) 
 be payable on Friday, without any grace whatsoever. For 
 the Jew maker would not be compelled to do business on 
 Saturday ; and the laws or usages of the country would not 
 justify a demand on Sunday or Christmas.^ 
 
 § 223. The reason of all this doctrine seems to be, that, 
 as the allowance of the days of grace is a mere indulgence to 
 the maker, it shall be granted only in cases where it will not 
 work any extra delay to the holder of the Note ; but he shall 
 be entitled to strict payment at the punctum temporis of the 
 Note. If any other rule were adopted, the holder would be 
 compelled to lose the use of his money for four days ; and 
 thus the period of delay be protracted to his inconvenience, 
 and perhaps injury. Pothier has very justly remarked, that 
 the days of grace are, as the name imports, a mere favor ac- 
 corded to the acceptor or maker, humanitatis ratione, to dis- 
 tinguish them from the time stated on the face and purport 
 of the Bill or Note.^ 
 
 § 224. Another question often arises as to the kinds of 
 Notes on which days of grace are allowed. [It is clear that 
 Notes need not be made payable at any bank, in order to be 
 entitled to grace.^] In England, days of grace are allowed 
 on all Notes, whether they are payable at a certain time after 
 
 ' Story on BHls, § 233 ; Bayley on Bills, ch. 7, § 2, p. 571 (5th edit. 
 1830) ; Chitty on Bills, ch. 8, p. 360 (8th edit. 1833) ; Id. ch. 10, pp. 488, 
 520 ; Lindo v. Unsworth, 2 Camp. 602 ; Heinecc. de Camb. cap. 4, § 41. 
 
 " Pothier, De Change, n. 139 ; Chitty on Bills, oh. 9, pp. 407, 408 (8th 
 fidit. 1833); Heinecc. de Camb. cap. 4, §§ 13, 14. Heineccius says: 
 " Quamvis vero id tefflpus vocari soleat tempus fatale solutionis ; quibusdam 
 tamen locis etiam elapso illo tempore, quod in cambio expressum est, accep- 
 ±anti dari solent inducise aliquot dierum, e. gr. trium, quatuor, quinque, sex, 
 qui vocantur Respit-vel Discretions-Tage, nee non Nach-vel Ehren-Tage." 
 Heinecc. de-Camb. cap. 2, § 14; ante, § 215; Story on Bills, § 333, note. 
 
 ' Cook u. Darling, 2 K. I. 385. 
 
CHAP. VI.] PRESENTMENT FOE PAYMENT. 275 
 
 date, or after sight, or even at sight.^ As to the latter 
 (Notes payable at sight), there has been some diversity of 
 opiaion among the profession as well as among the element- 
 ary writers. But the doctrine seems now well established, 
 both in England and America, that days of grace are allow- 
 able on Bills and Notes payable at sight.^ And the same 
 rule has been applied, as, in strict analogy, it should apply, 
 to bank Post Notes, payable after sight ; for they differ in 
 nothing from ordinary inland Bills of Exchange.^ The same 
 
 ^ Chitty on Bills, ch. 9, p. 407 (8th edit. 1833) ; Bayley on Bills, ch. 7, 
 § 1, pp. 244, 245 (5th edit. 1830) ; Bank of Washington v. Triplett, 1 Pe- 
 ters, 30. '^ 
 
 " Chitty on Bills, ch. 9, pp. 407, 409 (8th edit. 1833) ; Bayley on Bills, 
 ch. 7, § 1, p. 249 (5th edit. 1830) ; 1 Selwyn, Nisi Prius, pp. 350, 352 (10th 
 edit. 1842) ; Dehers v. Haniot, 1 Show. 163 ; Coleman v. Sayer, 1 Barnard. 
 303 ; Story on Bills, § 228, and note. [Hart Vs Smith, 15 Ala. 807. The 
 contrary was however held in Trask v. Martin, 1 E. D. Smith, 505, in the 
 N. Y. Court of Common Pleas. See also Nimick v. Martin, U. S. Monthly 
 Law Mag. January, 1850 ; 7 Western Law Jour. May, 1830, p. 380.] 
 
 ' Chitty on Bills, ch. 9, pp. 406, 409 (8th edit. 1833) ; Bayley on Bills, 
 ch. 7, § 1, pp. 244, 245 (5th edit. 1830) ; 1 Bell, Comm. B. 3, ch. 2, § 4, p. 
 411 (5th edit.) ; Brown v. Lusk, 4 Yerg. 210. How would it be on a bank 
 Post Note, payable at sight? Mr. Chitty (pp. 409, 410), on the subject of 
 Bills payable at sight, says : " With respect to a Bill payable at sight, 
 though, from the very language of the instrument, it should seem that pay- 
 ment ought to be made immediately on presentment, this does not appear to 
 besosettled. The decisions and the treatises differ on the question, whether or 
 not days of grace are allowed. In France, Pothier, enumerating the various 
 kinds of Bills, and writing at a time when days of grace were allowed in 
 France, states, that a Bill, payable at sight, is payable as soon as the bearer 
 presents it to the drawee ; but in another part of his work it appears that 
 this opinion is founded on the words of a particular French Ordinance, 
 which cannot extend to Bills payable in this country. However, he assigns, 
 as a reason, that it would be inconvenient, if a person who took a Bill at 
 sight, payable in a town through which he meant to travel, and the payment 
 of which he stands in need of, for the purpose of continuing his journey, 
 should be obliged to wait till the expiration of the days of grace after he 
 presented the Bill ; a reason obviously as applicable to the case of a Bill 
 drawn payable at sight in this as in any other country ; and in France, a 
 Bill payable at a fair is due the day before the last day of such fair. In 
 Spain, days of grace are not allowed, when Bills are drawn payable at 
 
276 PROMISSOEY NOTES. [CHAP. VI. 
 
 rule seems to apply to Bills payable by instalments ; and the 
 days of grace are allowed on the falling due of eacn instal- 
 ment.^ But Notes, payable on demand, are immediately gay- 
 able upon presentment, without allowing any days of grace.^ 
 And the same rule will apply where no time of paynjent is 
 expressed on the face of the Note ; for then, in contempla- 
 tion of law, it is payable on demand.^ 
 
 § 225. In France, under the old law (for, by the modern 
 Code, as we have seen, no days of grace are allowed*) , no 
 days of grace were allowed on Bills payable at sight ; and 
 Pothier has given strong reasons in support of this construc- 
 
 sight, nor indeed on a Bill not previously accepted. Beawes, in his Lex 
 Mercatoria, says, that Bills made payable here at sight have no days of 
 grace allowed, although it would be otherwise in the case of a Bill made 
 payable one day after sight. Kyd, in his Treatise, expresses the same opin- 
 ion. But it appears now to be considered as settled, that days of grace are 
 to be allowed. In Dehers v. Harriot, 1 Show. 163, it was taken for granted 
 that days of grace were allowable on a Bill payable at sight. The same 
 doctrine was entertained in Coleman v. Sayer, 1 Barnard. 303. And in 
 another case, where the question was, whether a Bill payable at sight was 
 included under an exception in the Stamp Act, 23 Geo. III. c. 49, § 4, in 
 favor of Bills payable on demand, the Court held that it was not ; and Bul- 
 ler, J., mentioned a ease before Willes, C. J., in Loudon, in which a jury of 
 merchants were of opinion, that the usual days of grace were to be allowed 
 on Bills payable at sight. And in Forbes on Bills (p. 142), the same prac- 
 tice is said to prevail. And Mr. Selwin, in his Nisi Prius (p. 339, 4th edit.), 
 observes, that the weight of authority is in favor of such allowance. And 
 they were allowed on such Bills at Amsterdam.'' It seems that in Louisiana, 
 if a Bill be payable on a fixed day (as on the first day of March), it is pay- 
 able on presentment, and no days of grace are allowed. Durnford v. Pat- 
 terson, 7 Martin, 460. This seems to be a peculiar usage, growing out of 
 the law of Spain. 
 
 ' Oridge v. Sherborne, 11 M. & W. 374. Coffin v. Loring, 5 Allen, 153. 
 And the interest due and payable upon the instalment is governed by the 
 same rule. Coffin v. Loring, ut supra. 
 
 - Bayley on Bills, ch. 7, § 1, pp. 233-242 (5th edit. 1830) ; Chitty on 
 Bills, ch. 9, pp. 407-410 (8th edit. 1833) ;' Barbour v. Bayon, 5 Louis. 
 Ann. 304 ; Story on Bills, § 231. 
 
 ' Chitty on Bills, ch. 9, p. 410 (8th edit. 1833). See Sutton v. Toomer, 
 7. B. & C. 416. 
 
 * Ante, § 216 ; Story on Bills, §§ 334,t336 ; Code de Comm. art. 135. 
 
CHAP. VL] presentment FOE PAYMENT. 277 
 
 tion of the language.^ But upon all other Bills, to wit : 
 those payable at a usance, or at a certain number of days 
 after sight or date, the days of grace were allowable.^ The 
 like rule prevails iu Spain ; and probably, also, in most of the 
 countries of continental Europe.^ 
 
 [§ 225 a. Connected witli the subject of days of grace is 
 the question, whether the holder may commence an action on 
 the last day of grace, or must wait until the whole day has 
 expired. The general rule, with respect to the time allowed 
 for the payment of money when a day certain is appointed, 
 is, that the promisor has till the last moment of the specified 
 day in which to pay.* And some cases have applied this rule 
 to days of grace, declaring that no action will lie against the 
 maker of a Promissory Note payable on time, if commenced 
 before the close of the last day of grace ; ^ but the better 
 
 ' Pothier, De Change, n. 12, 172, 198 ; Code de Comm. art. 130 ; Chitty 
 on Bills, ch. 9, p. 409 (8tli edit. 1833) ; Story on Bills, § 228, and note. 
 
 ^ Pothier, De Change, n. 13, 139, 172. 
 
 = Chitty on Bills, ch. 9, pp. 407, 409, 410 (8'th edit. 1833) ; 1 Bell, Comm. 
 B. 3, ch. 2, § 4, pp. 410, 411 (5th edit.) ; Heinecc. de Camb. cap. 2, §§ 13 - 
 15. Mr. Chitty (p. 407) says : " In most countries, when a Bill is payable 
 at one or more usances, or a Bill or Note is payable at a certain time after 
 date, or after sight, or after demand, it is not payable at the precise time 
 mentioned in the Bill or Note, but days of grace are allowed. The days of 
 grace (at Hamburg called respite days) which are allowed to the drawee, 
 are so called, because they were formerly merely gratuitous, and not to be 
 claimed as a right by the pei-son on whom it was incumbent to pay the Bill, 
 and were dependent on the inclination of the holder. They still retain the 
 name of grace, though the custom of merchants, recognized by law, has long 
 reduced them to a certainty, and established a right in the acceptor to claim 
 them, in most oases of foreign or inland Bills, or Notes payable at usance, or 
 after date, or after sight, or after a certain event, or even when expressly . 
 made payable on a particular day, or even at sight ; but not when expressly 
 made payable on demand." Ante, § 224, note. 
 
 ' Hudson V. Barton, 1 Rol. 189 ; Leftley v. Mills, 4 Term, 173 ; Man- 
 chester Bank v. Fellows, 8 Foster, 313 ; Cabell v. Vaughan, 1 Saund. 288 ; 
 Webb V. Fairmaner, 3 M. & W. 474. 
 
 ° Randolph v. Cook, 2 Porter, 28fi ; Osborne v. Moncure, 3 Wend. 170 ; 
 Thomas v. Shoemaker, 6 Watts & Serg. 179 ; Bevan v. Eldridge, 2 Miles, 
 353 ; Smith v. Bank of Washington, 5 S. & R. 318 ; McFarland v. Pico, 8 
 Cal. 626. 
 
278 PROMISSORY NOTES. [CHAP. VI. 
 
 opinion, wliicli is sustained by the current of authorities, un- 
 doubtedly is, that an action may be commenced against the 
 maker at any reasonable time on the third day after a de- 
 mand on him, or after the close of business hours,i and 
 against the indorser after a demand oh the maker, and 
 notice to himself; ^ although in the latter case the plaintiff 
 
 '■ Veazie Bank v. Wynn, 40 Maine, 62. 
 
 2 [Flint V. Kogers, 15 Maine, 67 ; Shed v. Brett, 1 Pick. 401 ; Wilson v. 
 Williman, 1 Nott & McCord, 440 ; Butler v. Kimball, 5 Met. 94 ; Greeley 
 V. Thurston, 4 Greenl. 479 ; Coleman v. Ewing, 4 Humph. 241 ; Staples v. 
 Pranklin Bank, 1 Met. 48. Shaw, C. J. said : " The only question now is, 
 whether a Note is payable on demand on the last day of grace, when a Note 
 is entitled to grace. A different construction may perhaps apply, when a 
 Note is payable without grace. As grace was originally matter of indul- 
 gence and courtesy, and not of contract, it perhaps may be contended, that 
 although a debtor has the whole of the last day of the credit stipulated for 
 by contract to make payment, yet a different rule may apply to grace, which 
 is not part of the contract. So, when the third day of grace falls on Sun- 
 day, as the right of one or the other of the parties must yield, it shall be that 
 of the one who claims indulgence, and not of him who claims of right ; where- 
 as, if a bond were to be payable on Sunday, the debtor would have till the 
 close of Monday to pay it. Some of the cases appear to turn on this 
 distinction. 
 
 " Formerly it was held, injMassachusetts, that, unless a Promissory Note 
 expressed grace, it was payable without grace ; now it is otherwise by 
 statute. Whether a Note expressed to be payable in thirty days, without 
 grace, is considered due on demand on the thirtieth day after the day of the 
 date, it is not now necessary to decide ; though we are inclined to think that 
 such was the rule formerly, when Notes were not entitled to grace. 
 
 " The first case of which a report is published, and which is directly in 
 point, is a nisi prius decision of Chief Justice Parsons, and is reported in 
 an American edition of Chitty on Bills (p. 225, note y), published in 
 1809, and edited by Mr. Story, now Mr. Justice Story, of the Supreme 
 Court of the United States, — that of Park v. Page, Suffolk, November 
 term, 1808. He says : ' The Note is due on the last day of grace, and, if 
 payment is refused, the maker may be sued on that day.' I have examined 
 the record of that case, and find that it was a suit by the indorsee against 
 the indorser of a Promissory Note, dated 7th July, 1807, payable at sixty 
 days, with customary grace. The last day of grace was therefore the 8th 
 of September. The writ is dated on the 8th of September, and was served 
 by an attachment of real estate, at 11 o'clock on that day. To this opinion 
 at nisi prius, no exception appears to have been taken, and parties and coun- 
 
CHAP. VI.] PRESENTMENT FOB PAYMENT. 279 
 
 must show affirmatively that the commencement of the suit 
 was after notice to the indorser ; ^ and that the demand on 
 the maker was at a seasonable hour of the day.^] 
 
 sel acquiesced. The only difference between the case thus appearing, and 
 the note cited, is, that the action was against the indorser, and not against the 
 maker. But if an action would lie against the indorser, who is only pro- 
 visionally liable on the default of the maker, a fortiori, as it seems, would 
 lie against the maker, who is the principal debtor. This edition of 
 Chitty, by Mr. Justice Story, wjis extensively in use in this Commonwealth 
 for many years amongst lawyers and merchants, and was regarded as high 
 authority on the law of negotiable Bills and Notes. 
 
 " The case of Henry v. Jones, 8 Mass. 453, decided in 1812, appears to 
 me to have a strong application to the point in question. It was a suit 
 against an indorser, on a Note dated March 4, 1809, payable in sixty days ; 
 and, as the law then stood, was not entitled to grace. The question was, 
 whether the day of the date should be excluded from the computation of 
 the sixty days ; if it should be, the Note was at maturity on the 3d of May ; 
 if included, it was on the 2d. The Note was presented to the maker on 
 the 2d, and payment refused, and notice was given to the indorser at a 
 very early hour on the morning of the 3d, and payment not being made, a 
 suit was then commenced. The Court held that the day of the date should 
 be excluded, and from there being no grace, the 3d of May was the last 
 day of the sixty days' credit stipulated for by the contract. The Court, 
 in concluding their judgment, say : ' No action lies against the indorser, 
 until after demand made on the day of the maturity of the Note. In this 
 case the demand was made on the day preceding, and not on the day fixed 
 by the parties for the payment.' Here, it will be perceived, the rule was 
 prescribed, as well when the Note was payable without grace, as when it is 
 with grace ; and it is payable on demand, on the last of the days specified 
 in the Note. Otherwise, the Note in question would not have been de- 
 mandable till the 4th. 
 
 " This case is recognized and confirmed, as to a demand on the day of 
 maturity, in Farnum v. Fowle, 12 Mass. 89. 
 
 " But the case in which the point was directly decided, and a case which 
 received great consideration, is that of Shed v. Brett, 1 Pick. 401. Several 
 other questions were considered, and the case underwent great discussion. 
 The action was commenced against the indorser, on the last day of grace, 
 after a demand on the promisor, and notice put in the post-office for the 
 indorser, who lived in another town, and held to well lie. The point, that 
 all parties are in default, and liable to an action on the last day of grace, 
 
 ■ Manchester Bank-u. Fellows, 8 Foster, 314. 
 ^ Lunt V. Adams, 17 Maine, 230. 
 
280 PEOMISSOKY NOTES. [CHAP. VI. 
 
 § 226. Having thus ascertained the time when a Promis- 
 sory Note becomes due and payable, whether payable at or 
 
 after demand and refusal to pay, seems rather to have been taken as a 
 well-settled rule than an open question. The Court, in giving judgment, 
 say that the right of action accrues against the indorser of a Note, when 
 the maker refuses to pay. 
 
 " The case of N. E. Bank v. Lewis, 2 Pick. 125, goes on the same ground. 
 The action was against the indorser, and commenced on the last day of 
 grace, and it was conceded, that if the notice had been given to the in-,' 
 dorser before the service of the writ, which might have been done in a few 
 minutes, the action might have been sustained. The case was decided on 
 a distinction between the case where the parties live in the same and in 
 different towns. In the latter case, putting a letter in the post-office is 
 held sufficient constructive notice, although it cannot by possibility have 
 reached the indorser by the course of the mail. And the point in this case 
 was, that if the notice precedes the suit ever so short a time, as, if the officer 
 go with the notice in one hand and the writ in the other, it will be suffi- 
 cient. This is an express declaration, that an action will lie after a default 
 on the last day of grace. 
 
 " The case of City Bank v. Cutter, 3 Pick. 414, is quite decisive of the 
 same point. In that case, which was against an indorser, the defendants 
 pleaded a tender on the day after the last day of grace. If the promisor 
 and indorser had to the last hour of the last day of grace to make payment, 
 there was no default till the day after ; and as there can be no fraction of 
 a day in such case, a tender on that day would be a complete performance 
 of the contract, and a good bar to the action. The Court, in overruling 
 the plea, say : ' Our doctrine, as established in the case of Shed v. Brett, 
 and indeed always practically recognized, is, that the suit may be brought 
 on the very day the Note becomes due, after demand and notice, for there 
 is then a breach of the promise. If the Note is not paid during the busi- 
 ness hours of the day, if the money is to be paid into a bank, a right of 
 action has accrued.' 
 
 " The same doctrine is recognized and declared in Boston Bank v. 
 Hodges, 9 Pick. 420. The Court, on dealing with an argument of the 
 plaintiff, that the Note .being due on the 9th of May, the last day of grace, 
 a demand and refusal to pay on any part of that day, with immediate notice 
 to the indorser, will give a right of action against the latter, say, ' This is 
 true, where there is an actual demand upon the maker according to the 
 general rule of law.' But the case was decided against the plaintiffs, on 
 the ground that they had neither conformed to the general rule of law, nor 
 to the substituted course established by their own usage. 
 
 " The principle I am stating was again recognized in Church v. Clark, 
 21 Pick. 310. The Note was made payable at a bank, and the suit was 
 commenced against the maker at one minute after 12 o'clock at night, be- 
 
CHAP. VI.] PRESENTMENT FOR PAYMENT. 281 
 
 after sight, or after date, whether with or without the allow- 
 ance of days of grace, and whether payable after a fixed 
 
 ing the morning of the last day of grace. Held, that it would not lie. The 
 Court again repeat the general rule, that a Note is payable at any time on 
 demand on the last day of grace, or day it becomes due. But such a rule 
 may be modified by the terms of the Note ; and making a Note payable at 
 a bank is making it payable within usual banking hours. •- 
 
 " From this view of the cases decided in Massachusetts, it seems to have 
 been uniformly held, that on demand and refusal of payment, by the maker, 
 at any reasonable time on the last day of grace, the Note is due and pay- 
 able ; that, if not then paid, an action may be immediately commenced 
 against the maker, and, after actual or constructive notice to the indorser, 
 against him. And, as stated by Chief Justice Parker, in 3 Pick. 418, this 
 rule seems to have been always practically recognized. 
 
 " This point has been decided in the same way in Maine. It is there 
 held, that Bills and Notes are payable on demand, at any reasonable hour, 
 on the day they fall due, and if not then paid, the acceptor or maker may 
 be sued, and also the drawer and indorser, after notice. Greeley v. Thurs- 
 ton, 4 Greenl. 479 ; Flint v. Kogers, 3 Shepl. 67. It is a little remarkable, 
 as mentioned by Mr. Justice Weston, that there is no direct English au- 
 thority upon this point. There appears to be no case in which it has been 
 decided, either that an action may or cannot be commenced on the last day 
 of grace, or day the Note becomes due. The general rule in regard to 
 payment of debts, for rent, on bond, for goods sold on credit or otherwise, 
 is, that the debtor has till the last hour of the day, in which to make pay- 
 ment; Webb V. Fairmaner, 3 M. & W. 474 ; but the case of negotiable 
 Bills and Notes is uniformly treated as an exception. All the authorities 
 hold, that a foreign Bill must be demanded on the last day of grace, and, 
 if not paid, must be noted for protest ; and the authorities are equally uni- 
 form, that if not thus paid on demand, on the last day, by the acceptor or 
 maker, they may be treated as dishonored, and notice may be immediately 
 given to the drawer and indorsers, and they will be held liable. Leftley 
 V. Mills, 4 Term, 1 70. In this case Mr. Justice Buller lays down the rule 
 very explicitly, and it seems to have been subsequently followed. He 
 states the rule to be, that if not paid on demand, on the last day, the Bill is 
 dishonored, the parties are in default, and the Bill may be, and, in case of 
 a foreign Bill, must be, protested on that day, although notice will be sea- 
 sonable if given the following day. Burbridge v. Manners, 3 Camp. 193 ; 
 Ex parte Moline, 1 Rose, Bankr. Cas. 303; S. C, 19 Ves. 216. It was 
 there held, that demand on the acceptor at 11 o'clock, and notice of non- 
 payment to the drawer the same morning, was good, and warranted the 
 proof of a debt against the drawer, who had become bankrupt. 
 
 " The rule is uniformly laid down by the text writers, that the Bill 
 must be presented for payment on the last day of grace. Bayley on Bills, 
 
282 PROMISSOEY NOTES. [OHAP. VI. 
 
 number of days, or months, or one or more usances, let us 
 now pass to the consideration of the time and mode in which 
 
 126 ; Chitty on Bills, 365. The latter writer seems to consider the rule 
 established, that the contract of the maker of a Note or acceptor of a Bill 
 is to pay on demand on the appointed day, and if payment be not made on 
 such demand, the contract is broken,- and the holder may treat the Bill as 
 dishonored. • 
 
 " In a late work, Byles on Bills, it is stated, p. 131, that the acceptor of 
 a Bill, whether inland or foreign, or the maker of a Note, should pay it on 
 a demand made, at any time within business hours, on the day it falls due, 
 and if it be not paid on such demand, the holder may instantly treat it as 
 dishonored. But the acceptor has the whole of that day within which to 
 make payment ; and though he should, in the course of that day, refuse 
 payment, which entitles the holder to give notice of dishonor, yet if he sub- 
 sequently, on the same day, makes payment, the payment is good, and the 
 notice of dishonor becomes of no avail. 
 
 " This writer cites Hartley v. Case, 1 C. & P. 556, 676 ; S. C, 4 B. 8e C. 
 341. The point was made in that case, that notice could not be given on 
 the day the Note becomes due ; but the case went off on another ground, 
 and no opinion was given on this question. 
 
 " The passage cited appears contradictory to itself, inasmuch as it declares 
 that the Note is due and payable on demand on the last day of grace, and 
 is dishonored if not then paid, and yet that the maker and acceptor have 
 the whole d^y to pay it in. It would seem that there could be no dishonor, 
 unless the maker had failed to comply with his contract ; and if he has 
 failed to comply with his contract, then, by a general rule of law, the 
 holder has his remedy by action. 
 
 " Perhaps the state of the law upon this point may be accounted for, by 
 a remark made in Chitty on Bills, 36, who, after saying that notice of dis- 
 honor may be given on the same day, adds, it is not usual or necessary to 
 give notice of non-payment before the following morning, and therefore 
 there can be no objection to the allowance of the whole day on which the 
 Bill becomes due, to pay it in. It is probable, therefore, that, though the 
 holder may have a strict right to proceed in all respects as upon a dishon- 
 ored Bill on the last day, after demand, refusal, and notice, yet, it is so far 
 the general practice to postpone notice and other proceedings till the day 
 following, that it is regarded amongst merchants as a right. That it seems 
 so to have been understood by men of business appears by a remark of Mr. 
 Jifetice BuUer, in Colkett v. Freeman, 2 Term, 61, and also by an obiter 
 dictum of Bolland, B., in Webb v. Fairmaner, 3 M. & W. 474. But the 
 case of negotiable Bills and Notes was not then under consideration. 
 
 " No doubt there is a prevailing understanding in England, that the 
 maker or acceptor has, by right or by courtesy, the whole of the last day to 
 make payment in, and if it is so in fact paid or tendered, there would be 
 
CHAP. VI.] PRESENTMENT FOR PAYMENT. 283 
 
 payment is to be demanded on the day of the maturity of the 
 Note. And, in the first place, within what hours of the day 
 
 little occasion for the holder to insist on his right of action, and decline 
 receiving payment; and so no case has arisen in which it has become 
 necessary to decide that precise question. Possibly it may be considered, 
 that the holder has a right to treat the Bill as dishonored, after demand 
 and refusal, and even to commence an action, subject to be defeated and 
 barred in case the maker should pay the amount due, at any time on the 
 last day of grace ; though it is difficult to perceive how the holder can have 
 a perfect right to treat the Note as dishonored, by breach of the contract, 
 and, at the same time, that the acceptor can have a perfect right, by pay- 
 ment of the Bill, to perform his contract, and save himself from the con- 
 sequences of such breach. In Hartley v. Case, 1 C. & P. 556, already cited, 
 Abbott, C. J., on a motion to show cause, says : ' I think the notice of dis- 
 honor, given on the day on which the Bill is payable, will be good or bad, 
 as the acceptor may, or may not, afterwards pay the Bill. If he does not 
 afterwards pay it, the notice is good ; and if he does, it of course comes to 
 nothing.' 
 
 " This certainly implies, that after non-payment on demand, on anypart 
 of the last day, there is a breach of the contract of the maker, and no fur- 
 ther demand is necessary to complete the holder's right against the maker, 
 acceptor, and indorsers. But whether, after such breach and before the 
 close of the day, an action might be commenced against either, does not 
 appear by this case, nor, as we believe, by any case decided in England. 
 
 " The only decided case opposed to the opinion which we have adopted, 
 and one entitled to great respect, is that of Osburn v. Moncure, 3 Wend. 
 170. In this case, which was an action by the payee against the maker of a 
 Note, demand was made on the last day of grace, and, payment being 
 refused, a suit was commenced at three o'clock on the same day. The 
 Court were of opinion, that a demand on the maker should be made on the 
 third day of grace, and, on refusal, the holder might treat the Bill as dis- 
 honored, so far as immediately to give notice to the indorser ; yet that the 
 maker has the whole day to pay it in, if he thinks proper to seek the holder. 
 They rely upon the general rule applicable to the case of other debts, that 
 the debtor has to the last instant of the day to make payment, and they 
 consider that in this respect there is no distfnction in case of negotiable Bills 
 and Notes. 
 
 " It has been frequently held in the Courts of New York, that demand 
 must be made on the last day of grace, as well on inland Bills and Prom- 
 issory Notes, as on foreign Bills, and, if not then paid, the holder might treat 
 them as dishonored, and notify the drawer and indorsers. Jackson v. Rich- 
 ards, 2 Caines, 344 ; Corp v. M'Comb, 1 John. Cas. 328. 
 
 " Indeed, the rule seems to be settled by all the authorities, English and 
 American, that a demand must be made on the maker or acceptor, within 
 
284 PEOMISSORY NOTES. [CHAP. VI. 
 
 the presentment for payment is proper and allowable. The 
 general answer to be given to such an inquiry is, that it 
 
 reasonable hours, on the day of maturity ; and when the Bill or Note is in 
 a bank, which has certain fixed and known hours for being open for busi- 
 ness, those will be construed to be reasonable hours ; that if the Bill or 
 Note is not paid on demand, it is dishonored, and notice may be immediately 
 given to the drawer and indorsers, and, without further demand or notice, 
 they will be legally bound to make payment. Tindal v. Brown, 1 Term, 
 167, affirmed in Ex. Ch. 2 Term, 186, note ; Bussard v. Levering, 6 Wheat. 
 102. But what shall be. the legal consequence of such dishonor, does not 
 appear to have been decided in England. In the case cited, 1 C. & P. 676, 
 it was argued by counsel, Scarlett, Holt, and Chitty, and not controverted 
 by the Court, because the decision of the case did not require it, that a 
 payment of a Bill on the day of maturity, but after actual dishonor, is no 
 better than paying at any time before action brought. And it had long 
 before been decided in Hume v. Peploe, 8 East, 168, that a plea of tender 
 after the day of payment, though of all the money due on the Bill, was not 
 a good plea in bar, because it did not show a performance of tlie contract. 
 If then there is a breach of contract, by a non-payment on demand, and 
 the tender after a breach is no bar, it would seem to follow, as a necessary 
 legal consequence, that an action would then, lie. 
 
 " But upon this point the Courts of different States have come to differ- 
 ent conclusions. In New York it has been decided, as in the ease cited, 
 that an action will not lie till after the day. In Maine, as we have already 
 seen, it has been decided that an action will lie against all the parties, on 
 the day of maturity, after an actual dishonor. 
 
 " In New Hampshire, Dennie v. Walker, 7 N. H. 201, the Court say, it 
 may now be considered as settled, that notice may be given and suit brought 
 against the indorser on the last day of grace, after demand and notice. 
 
 " In Maryland, in the case of Farmers' Bank v. Duvall, 7 Gill & John. 
 89, the Court say, it is now settled, that demand m'ay be made on the last 
 day of grace, and if payment be not made, the holder may at once treat 
 the Note as dishonored, and give notice accordingly. It is not, however, 
 stated, in terms, that an action may be at once brought. 
 
 " In South Carolina, in Wilson v. Williman, 1 Nott & McCord, 440, it was 
 decided, on great consideration, by a majority of the Court, that the maker 
 may be sued on the third day of grace, after demand. 
 
 " Oh the whole, we think the weight of authority is in favor of the con- 
 clusion to which we have come ; and if it were a new question, it seems to 
 follow, on legal principles, as a fair and legitimate conclusion from the es- 
 tablished fact, that the contract of the acceptor or maker is broken by a 
 neglect or refusal to pay on demand, within reasonable time, on the last day 
 of grace, that the holder may then have his remedy by action. But in this 
 Commonwealth it is not a new question ; it has been settled, we believe, 
 
CHAP. VI.] PRESENTMENT FOE PAYMENT. 285 
 
 must be within reasonable hours during the day. Wliat are 
 such reasonable hours must depend partly upon the place, 
 either of the business or domicile of the maker, and partly 
 upon the custom or usage of trade in the town or city where 
 the Note is payable, and the presentment is to be made.^ If 
 there is a known custom or usage of trade in the town or 
 city, that will furnish the proper rule to govern the holder ; 
 for then the presentment must be within the hours limited 
 by such custom or usage.^ Thus, for example, the general 
 usage of banks and bankers is, to limit their business trans- 
 actions to certain hours, called business hours. If, then, a 
 Note is payable at a bank or a banker's, it should be pre- 
 sented at the bank or banker's place of business during those 
 hours.^ On the other hand, if a Note is payable generally, 
 
 by a uniform series of decisions, and by a long and unbroken course of 
 practice."] 
 
 In California a Note may be protested at any reasonable hour of the 
 last day of grace, but no action lies until the next day. MoFarland v. 
 Pico, 8 Cal. 626. Same rule held in Wiggle v. Thompson, 11 Sm. & Mar. 
 452 ; Walter v. Kirk, 14 111. 55 ; Smith v. Alyesworth, 40 Barb. 104. In 
 McKenzie v. Durant, 9 Rich. 61 ; Amraidown v. Woodman, 31 Maine, 580, 
 Veazie Bank v. Paulk, 40 Maine, 109, it was held the action might be be- 
 gun on the last day of grace after demand and notice. 
 
 1 Story on Bills, § 349. 
 
 ' Ibid. §§ 236, 349 ; Bayley on Bills, ch. 7, § 1, p. 224 (5th edit.) ; 
 Chitty on Bills, ch. 7, p. 303 (8th edit.) ; 1 Bell, Comm. B. 3, ch. 2, § 4, 
 pp. 411,412 (5th edit.). 
 
 ' Parker v. Gordon, 7 East, 385 ; Elford v. Teed, 1 M. & S. 28 ; Bayley 
 on Bills, ch. 7, § 1, pp. 224, 225 (5th edit.) ; Chitty on Bills, ch. 7, p. 305, 
 (8th edit.) ; Id. ch. 9, pp. 421, 422 ; Story on Bills, § 349 ; Barclay v. Bai- 
 ley, 2 Camp. 527 ; Jameson v. Swinton, 2 Taunt. 224 ; S. C, 2 Camp. 373 ; 
 Garnet v. Woodcock, 6 M. & S. 44 ; Whitaker v. Bank of England, 6 C. & 
 P. 700 ; Church v. Clark, 21 Pick. 310. It has been suggested, that where 
 a Note is payable at a bank, no action lies upon it, even against the maker, 
 until after the close of the usual bank hours, although a demand may have 
 been made at an earlier hour after the bank is open, and payment is re- 
 fused. See Church v. Clark, 21 Pick. 310. But qucere ; for the case did 
 not involve any such point ; and if the Note had been payable generally, 
 a demand at any reasonable time during that day would have entitled the 
 holder, if payment was refused, immediately to commence an action, with- 
 out waiting until the close of the day. Staples v. Franklin Bank, 1 Met. 43 ; 
 
286 PROMISSORY NOTES. [CHAP. Vl; 
 
 and without any designation of place, in such a case (as we 
 shall \presently see) it may be presented at the usual place 
 of business, or counting-house, or dwelling-house of the 
 maker, for payment. If presented at his place of business, 
 or counting-house, then it must be presented within the 
 hours within which such place of business, or counting-house; 
 is usually kept open, according to the custom or usage of the 
 town or city' ; or, if there be no such custom or usage, then 
 within the reasonable hours for transacting business there by 
 the maker.^ If presented at the dwelling-house or domicile 
 of the maker, then it must be within such reasonable hours 
 as that the family are up, and the maker may be presumed 
 to be ready to transact business there.^ If, in any of these 
 
 Church V. Clark, 21 Pick. 310 ; Whitwell v. Brigham, 19 Pick. 117. Why 
 should not the like rule apply to a refusal to pay at the bank, upon pre- 
 sentment within bank hours ? If a Note is payable at a bank, it is a suffi- 
 cient demand if the Note is at that bank on the last day of grace, and 
 there are no funds nor the maker there, or other provision to meet the 
 Note. Merchants' Bank v. Elderkin, 25 N. Y. 178 ; Hallowell v. Curry, 41 
 Penn. St. 322. Sherer v. Easton Bank, 33 Penn. St. 134. So a demand 
 made by a notary upon a Note payable at bank, soon after the usual busi- 
 ness hours, at the request of the cashier, is good. Allen v. Avery, 47 
 Maine, 287 ; Shepherd v. Chamberlin, 8 Gray, 225. A Note not payable 
 at any particular place was left in bank in Boston for collection. The 
 bank gave notice to the maker of the day when the Note. would fall due, 
 according to the custom of Boston ; it was held, that, if the maker was a 
 trader, and accustomed to do business at the bank, his consent to the usage 
 might be shown, and it would be a sufficient demand. Warren Bank v. 
 Parker, 8 Gray, 221. But in the absence of such usage and custom known 
 to the maker, a demand upon a Note at a bank, not payable at bank, is bad, 
 in the absence of a special agreement. Farmers' Bank v. Allen, 18 Md. 
 475 ; Barnes «. Vaughan, 6 R. I. 259 ; Hartford Bank v. Green, 11 lo. 476. 
 Where an indorser is in possession of a Note payable at bank, no demand 
 is necessary to-charge him. Havens v. Talbot, 11 Ind. 323. 
 
 ■ Ibid. 
 
 ' Chitty on Bills, ch. 7, p. 305 (8th edit.) ; Id. ch. 9, pp. 421, 422; Bay- 
 ley on Bills, ch. 7, § 1, pp. 214 - 226 (5t.h edit.) ; Story on Bills, § 349; 
 Barclay v. Bailey, 2 Camp. 527 ; Wilkins v. Jadis, 2 B. & Ad. 188; Jame- 
 son V. Swinton, 2 Taunt. 224 ; S. C, 2 Camp. 374 ; Bancroft v. Hall, Holt, 
 N. P. 476; Morgan v. Davison, 1 Stark. 114; Triggs v. Newnham, 10 
 Moore, 249 ; Dana v. Sawyer, 22 Maine, 244 (9 Shepl.). 
 
CHAP. VI.] PEESENTMENT FOB PAYMENT. 287 
 
 cases, the holder omits to perform his proper duty ; if the 
 presentment is made at unseasonable hours, either too early 
 or too late, at a bank or banker's, or at the counting-house, 
 or at the dwelling-house of the maker, and there is no person 
 there authorized to act, or ready to act for the maker ; if the 
 presentment is made before the counting-house is open, or 
 after it is shut, or after the family at the house have retired 
 to rest,^ or before they have risen ; in these, and the like 
 cases, the presentment will be deemed a mere nullity, and 
 without any legal effect, and tire holder must bear all the 
 consequences of his want of .diligence. These ordinarily are 
 (as has been already suggested), that the indorsers are dis- 
 charged from all liability on the Note, although the maker 
 still remains liable therefor.^ 
 
 § 227. In the second place, as to the particular place at 
 which presentment for payment of a Promissory Note is to 
 be made. According to the commercial law of England, if a 
 Promissory Note is made payable at any particular place, as, . 
 for example, at a bank, or a banker's, a presentment should 
 be there made for payment.^ Before the statute of 1 and 2 
 Geo. IV. ch. 78, a Bill of Exchange, as well as a Promissory 
 Note, payable at a bank or banker's^ was required to be pre- 
 sented at the bank or banker's for payment, before the ac- 
 ceptor or maker was bound to pay the same.* That statute 
 
 • [In Farnsworth v. Allen, i Gray, 453, the Note was presented at the 
 maiker's house, at nine o'clock in the evening, after he and his family had 
 retired for the night, and, it was held a reasonable time, it being in the 
 month of August, and the maker living ten miles from the place where the 
 Note was dated, and where the holder lived, and the notary having used 
 due diligence in ascertaining his residence.] 
 
 ' Story on Bills, §§ 236, 349 ; Thomson on Bills, ch. 6, § 1, pp. 430, 437 
 (2d edit.). 
 
 ' Story on Bills, § 239, and note ; Id. § 355 ; Chitty on Bills, ch. 7, pp. 321, 
 322 (8th edit) ; Id. ch. 9, pp. 391, 392 ; Bayley on Bills, ch. 1, § 9, pp. 29, 
 30 (5th edit.) ; Id. ch. 9, § 1, pp. 199, 200 ; Id. ch. 7, § 1, pp. 219 - 222 ; 1 
 Bell, Comm. B. 3, ch. 2, § 4, pp. 412, 413 (5th edit.) ; Gibb v. Mather, 2 
 Cr. & Jer. 254 ; S. C, 8 Bing. 214 ; Wild v. Volkenburg, 7 Cal. 166 ; Law- 
 rence V. Dabyns, 30 Mo. 196. 
 
 ' Ibid. 
 
288 PROMISSORY NOTES. [OHAP. VI. 
 
 changed the antecedent responsibility of the acceptor of a 
 Bill of Exchange, by providing that an acceptance, payable at 
 a banker's, or other specified place, without adding the 
 words, " and not otherwise or elsewhere," should be deemed 
 a general acceptance of the Bill to all intents and purposes, 
 so that no presentment or demand of payment at such 
 banker's, or other specified place, was thereafter necessary to 
 be made, in order to charge the acceptor.^ But the statute 
 did not touch the rights of the drawers or indorsers of any 
 such Bill, but left them to be governed by the antecedent 
 general law. Hence, so far as the drawer and indorsers are 
 concerned, a due presentment and demand of payment is still 
 necessary to be made at the banker's, or other specified place, 
 in order to found any right of action against them.^ The 
 
 > Ibid.; Chitty on Bills, ch. 5, pp. 172-174 (8tli edit.); Id. ch. 7, pp. 
 321-323 ; Id. ch. 9, pp. 31^1, 393, 396, 397 ; Bayley on Bills, cb. 1, § 9, p. 
 29 (5th edit.) ; Id. ch. 6, § 1, pp. 199 - 201 ; Gibb v. Mather, 2 Cr. & Jer. 
 ■ 254 ; S. C, 8 Bing. 214 ; Fayle v. Bird, 6 B. & C. 531 ; 3 Kent, Lect. 44, 
 p. 97, and note (e), and Id. p. 99, note (b) (5th edit.) ; Story on Bills, 
 § 355 ; Thomson on Bills, ch. 6, § 2, pp. 420-428 (2d edit.). 
 
 ^ Gibb V. Mather, 2 Cr. & Jer. 254 ; S. G., 8 Bing.. 214 ; Ambrose 
 V. Hopwood, 2 Taunt. 61. This whole subject was very much discussed in 
 the House of Lords, in the case of Rowe v. Young, 2 Brod. & Bing. 165; 
 S. C, 2 Bligh, 391. The original action was upon a Bill of Exchange by 
 an indorsee against the acceptor of the Bill. The Bill was dated 20th of 
 December, 1815, drawn by one James Meagher, at Gosport, upon the ac- 
 ceptor, at Torpoint, requiring him, two months after date, to pay to the 
 order of Meagher £300, value in account; and the Bill was accepted,. 
 " payable at Sir John Perring & Co.'s, bankers, London " ; and, at the time 
 when it became due, was dishonored and unpaid. The original plaintiff 
 recovered judgment ; and in the House of Lords the error assigned was, 
 that in one count in the declaration it was not averred that the Bill was 
 ever presented for payment at Sir John Perring & Co.'s. The opinions of 
 the judges on this, among other questions, was required of the House of 
 Lords, and the judges, differing in opinion, delivered their opinions seriatim. 
 In the House of Lords the judgment was reversed. Lord Eldon, in de- 
 livering his opinion upon that occasion, said : " My lords, the writ of error 
 in this case brings before your lordships the question, whether it was or was 
 not necessary, in the first count of the declaration, to allege or state ex- 
 pressly, or to allege or state in substance and effect, so that it might be col- 
 
CHAP. VI.] PRESENTMENT FOR PAYMENT. 289 
 
 statute does not comprehend Promissory Notes payable at a 
 banker's, or other specified place ; and therefore it is indis- 
 
 lected from the first count of the declaration, that the Bill had been pre- 
 sented and shown to the plaintiff, either when it became due and payable, 
 or before that time, or since the time, at Sir John Perring & Co.'s, bankers, 
 Loudon ; and that question may be stated in another way, namely, whether 
 this acceptance, as stated in the first count of the declaration, is to be 
 taken to be a general acceptance, making the party accepting liable to pay 
 everywhere ; or whether there is (what in some cases is called an expan- 
 sion of the undertaking, and in other cases is called an engagement or di- 
 rection in addition to the general unqualified acceptance to pay) a direc- 
 tion and engagement to pay at Sir John Perring & Co.'s, thrown in for the 
 convenience of both parties, but which the holder of the bill is not bound 
 to attend to unless he chooses ; or, on the other hand, whether this, upon 
 looking at the terms of the declaration, is what is in law called a qualified 
 acceptance. And, my lords, undoubtedly it is very fit this question should 
 be brought before your lordships ; because the state of the law, as actually 
 administered in the courts, is such, that it would be infinitely better to set- 
 tle it in any way than to permit so controversial a state to exist any longer. 
 It has been stated at the bar, and there can be no doubt that it has been 
 there correctly stated, that the Court of King's Bench has been of late 
 years in the habit of holding such an acceptance as this to be a general ac- 
 ceptance, with what the judges of that court call an expansion, or a direc- 
 tion, or an engagement, which introduces, not a qualified promise, but a 
 sort of courtesy, a kind of accommodation between the parties, in addition 
 to the effect of the general acceptance ; to which accommodation or 
 courtesy, however, they hold that the holder of the bill is not at all bound 
 to attend. On the other hand, it has been stated to your lordships, and 
 there can be no doubt of the fact, that the Court of Common Pleas is in 
 the habit of holding that such an acceptance as this is a qualified accept- 
 ance, and that the contract of the party is to pay at the bankers' ; and of 
 holding it as matter of pleading, that presentment at the place stipulated 
 must be averred, and that evidence must be given to sustain that averment. 
 It has been further represented, that, although in the present state of the 
 law, the principles of law, as applied to Promissory Notes and Bills of Ex- 
 change, are simple enough in common cases, the Court of King's Bench 
 has held, that if a man promise to pay at a particular place by a Promis- 
 sory Note (at the Workington Bank, for instance), the presentment, which 
 is, in point of law, a demand, must be made there, because the place stands 
 in the body of the Note, and, being in the body of the Note, it is part of 
 the written contract, which must be declared upon, as it exists, and proved 
 as declared ; but that, in the case of Bills of Exchange, the same Court has 
 held, that the place at which by its acceptance a Bill is made payable is 
 not in the body of the Bill ; and not being in the body of the Bill, the 
 19 
 
290 PROMISSORY NOTES. • [CHAP. VI. 
 
 pensable, in order to charge the maker or indorsers of a 
 Promissory Note, that a due presentment and demand of 
 
 Court has taken it for granted that it is not to be considered as being in the 
 body of the acceptance, a conclusion which It is extremely difficult, I think, 
 to adopt ; because it seems hard to say that combinations of various kinds 
 may be infused into the acceptance (for example, qualification as to time, 
 as to mode of payment, as to contingencies, upon which the acceptor will 
 pay, and various other qualifications which will be found in the cases), 
 which they unquestionably may be, notwithstanding the generality of the 
 Bill as drawn, but that, if the acceptance contain a qualification clearly 
 and sufficiently expressed as to place, that qualification ought not to be 
 introduced into the acceptance. In addition to being told that the de- 
 cisions of the Court of King's Bench upon Bills of Exchange cannot be 
 reconciled with the decision of that Court upon Promissory Notes, your 
 lordships are told that the decisions of that Court upon Bills of Exchange 
 are not all consistent with each other. It is a little difficult to say that 
 they are ; but undoubtedly it may be represented as the opinion of that Court 
 in judgment, that this species of acceptance is a general acceptance, with that 
 kind of expansion, direction, or engagement, to which I have been alluding. 
 The Court of Common Pleas being of a diflFerent opinion, it is impossible, 
 my lords, for any man to feel that he has incumbent upon him the duty of 
 giving the best opinion which he can form upon a question, on which so 
 many men of high professional character and great professional learning 
 have differed, without giving that opinion with a good deal of diffidence ; 
 but he must remember, that it is his duty to give his opinion, whatever it 
 may be. The first question is, whether this is a qualified acceptance. Upon 
 that question, the twelve judges have given your lordships their opinion, 
 and a great majority of them are of opinion that it is a qualified acceptance. 
 Some of the judges have given your lordships their opinion that it is a 
 general acceptance, with an expansion, direction, or engagement for the 
 convenience of one or other of the parties, which one does not very well 
 know ; and that the acceptance meant, that if the holder chose to go to Sir , 
 John Perring & Co.'s, he would probably there get payment of the Bill. 
 Then, another question is this : jupposing this to be a qualified acceptance, 
 was it necessary to aver the presentment in the declaration, and to support 
 that averment by proof? A great majority of the learned judges (includ- 
 ing some of those who thought this a qualified acceptance) say, that it is 
 not necessary to notice it as such in the declaration, or to prove present- 
 ment ; but that it must be considered as matter of defence, and that the 
 defendant must state himself as ready to pay at the place, and to bring the 
 money into court, and so bar tfie action, by proving the truth of that de- 
 fence. Some of the judges, to whom I am alluding (having been most 
 eminent in special pleading) deny this proposition, and say, that the 
 plaintiff must declare upon the contract as it is ; that he must make out his 
 
CHAP. VI.] PEESENTMENT FOE PAYMENT. 291 
 
 payment should be made at the banker's, or other specified 
 place. [And such is the rule, although the place named is 
 
 right to sue according to that contract ; and, if that contract engage for 
 payment at Sir John Perring & Co.'s, he must state in the declaration that 
 he has demanded payment at Sir John Perring & Co.'s ; in short, their 
 opinion is, that the plaintiff has no cause of action unless he have performed 
 his part of the contract. I think, my lords, I may venture to state, upon 
 the cases which I have taken a great deal of pains to search (for I hope I 
 have read every case upon the subject), that a person may, undoubtedly, 
 draw a Bill of Exchange, as we are in the habit of making a Promissory 
 Note, payable at a particular place ; the effect is, that the acceptor of such 
 a Bill has promised to pay at that particular place, and that the drawer, on 
 default of the acceptor, has promised to pay at that particular place ; but 
 there seems a great objection made to the doctrine, that, if a drawer has 
 drawn generally, the acceptor can accept specially. The question appears 
 to me to be whether the acceptor has accepted specially; and I cannot 
 imagine, if the contract of A (he being the drawer) be general, how it is 
 from thence to be reasoned, that I, the acceptor, need not come under any 
 engagement, unless I choose to come under the engagement proposed by A, 
 and that I cannot qualify my acceptance, and say to the holder of the Bill, 
 it is very true the drawer has drawn upon me and expects me to make my- 
 self liable generally, but that is not what I choose to do ; if you will not 
 take an acceptance from me, by which I can consult my own convenience, 
 by telling you that I will pay you at a given place and time, you shall have 
 none at all. Cannot an acceptor accept in a qualified way ? That he can 
 is clearly established by cases which extend to almost every species of quali- 
 fication ; and, unquestionably, if the qualification as to place cannot be 
 adopted by the acceptor, it must be on account of some circumstance which 
 belongs to the place, and does not belong to the time or the mode of pay- 
 ment, or any other species of qualification whatever. My lords, I am ready 
 to express my full assent to the doctrine, that, where a Bill is drawn 
 generally (considering that as an address to the person who is to accept it 
 generally, because it is drawn generally), it lies upon the acceptor, who> 
 says that he has accepted specially, to accept in such terms that the nature 
 of his contract may be seen from the terms he has used, and that may 
 clearly appear to be a qualified acceptance, which he insists is not a gen- 
 eral acceptance. The first question, then, here, will be upon the words, 
 whether this is or is not a qualified acceptance. Now, my lords, I really 
 do not know how it is possible to say that this is not a qualified acceptance ; 
 I mean independent of the cases which have been decided ; because, if a 
 man draw upon me, who am living in London, and I say, I accept accord- 
 ing to the usage and cu-stom of merchants, payable at my bankers. Child & 
 Co.'s, London, I only desire to ask (putting the usages of merchants, and 
 putting the effect of these cases out oi the question for a moment), whether 
 
292 PROMISSORY NOTES. [CHAP. VI. 
 
 not in the body of the Note, but separated from it by a 
 period.^] If a due presentment is not so made, the indorsers 
 
 any man could read an acceptance of mine, in these terms, and say that it 
 was not only an acceptance of mine, payable at Child's, where those funds 
 would be which were to pay it, but that it was an acceptance by virtue of 
 which (as is admitted by those who have argued about the convenience and 
 inconvenience, and who have looked at the argumentum ab inconvenienti) 
 the holder of that Bill might arrest me, and hold me to bail in any part of 
 the world. My lords, after revolving this question again and again in my 
 mind, with the full consideration of what has been stated about the practice 
 ' and contrary decisions, I cannot say that it was not the intention of the 
 party, who thus accepted, to come under an engagement, which may be 
 represented as an acceptance, to pay the Bill at Sir John Perring & Co.'s, 
 London. Then, it is said, that the word ' accepted' forms the general en- 
 gagement, and that the words 'payable at Sir John Perring & Co.'s, can- 
 not qualify and cut down the general engagement; and cases are then 
 cited which maintain a distinction between words of qualification in' the 
 body of a Note, and words of qualification in the margin or at the foot of a 
 Note ; and there are cases maintaining the distinction, that, if such words 
 be in the body of the Note, they form part of the contract ; but, if they be 
 at the foot, or in the margin, they form only a memorandum. I do 
 not mean to disturb these cases at all, but I do not understand how it is, 
 that from these cases it is to be inferred, that when I write the words ' ac- 
 cepted, payable at a given house,' the word ' accepted ' is to be taken to 
 express the whole of my contract, and that, though the sentence is not 
 complete till I write the whole, the latter part of it is not to be taken 
 as part of the contract, but as a direction or expansion of the engagement. 
 Your lordships have heard a great deal of this argumentum ab incon- 
 venienti, but I cannot help thinking, that this is a mode of reasoning which 
 is not quite analogous to our usual modes of reasoning in the courts below 
 on the question of what men are likely to do or not to do. The case is put 
 in this way : Supposing Bills were drawn on each of 'the twelve judges of 
 England, just before they left town on the circuit, and they had accepted 
 the Bills, payable at their respective bankers ; if it be the law that such an 
 acceptance renders them liable to pay anywhere, the holders of those Bills 
 might undoubtedly, if they pleased, arrest the judges at their respective cir- 
 cuit towns, a little to the inconvenience of the administration of justice. It 
 is said, no man would think of arresting the judges. My lords, I hope no- 
 body would think of arresting the judges ; but I can feel for mercantile men 
 just as well as I can feel for judges, and I can feel for men exposed to the 
 inconvenience of demands upon them, which are to be regulated not by their 
 contracts, but by a construction being given to their contracts, which they 
 
 ' Vander Donckt v. Thellusson, 8 C. B. 812. 
 
CHAP. VI.] PRESENTMENT FOR PAYMENT. 293 
 
 are discharged from all liability.^ The maker, indeed, is not 
 so discharged; but he is in no defaiilt, and is under- no ob- 
 
 meant should be never given to them. My lords, in this very case (and it 
 seems not to have been very much considered), the acceptor is at Torpoint ; 
 and, having his money in London, where it is usually demanded of him, he 
 says, 'If you make your demand upon me here, Icannot pay you ; but I have 
 at Child's or Drummond's shop money to pay you, and you will be sure to 
 find it there.' Is it no matter of inconvenience that such a man may, from 
 caprice, if you please (and we have heard of such things as men through 
 caprice refusing a tender of Bank of England notes, and so forth), be obliged 
 to bring money from London ? or is he to keep money in London and at 
 Torpoint too, to answer the exigency of the demand, as it may happen to be 
 made at the one place or the other ? My lords, there is another consider- 
 ation, which does not appear to me to have been so much attended to as it 
 might have been, namely, that if I promise to pay at my banker's in Lon- 
 don, and a man calls upon me to pay in Northumberland, it is not the same 
 thing ; for, looking at the demand as likely to be made at Child's shop, I send 
 the money there ; but, if I am to pay in Northumberland, there must be the 
 exchange, and remittance, and so on, backwards and forwards. But take 
 the case of' a gentleman leaving Calcutta, and coming to reside in London, 
 who gives a Bill of Exchange in Calcutta, to be paid there six months after 
 he departs ; he arrives in London, not bringing a shilling home to pay that 
 Bill ; he finds that Bill sent home by another ship, and he is arrested the 
 ' moment he lands. Is the sum, which he is obliged to pay here, the same 
 with that which he would have paid there, and for paying which he had 
 made preparation ? Certainly not. It appears to me, therefore, that, even 
 with respect to the value of what is to be paid, there is a most essential dif- 
 ference in the contract. Then it is said, this will be extremely incon- 
 venient ; and it was with a view to see what the balance of convenience and 
 inconvenience would be in that part of the case, that I took the liberty, 
 with your lordships' permission, to put the third and fourth questions to the 
 judges. It is said this may vary the right of the holder, in respect of the 
 drawer, unless he, the holder, give notice, and so forth, to keep his liability 
 alive. My lords, the answer to that, as it seems to me, is this, that if you 
 once admit that a man may accept specially, it is the consequence of the 
 law that these difficulties arise ; if you will say that no man shall accept 
 specially a Bill which is drawn generally, that settles the question ; but, if 
 
 ' Bayley on Bills, ch. 7, § 1, pp. 219 - 222 (5th edit.) ; Chitty on B 
 ch 9, pp. 396, 397 (8th edit.) ; Sanderson v. Bowes, 14 East, 500; Roche 
 V. Campbell, 3 Camp. 347 ; Gibb v. Mather, 2 Crom. & Jerv. 254 ; S. C, 8 
 Bing. 214; Dickinson v. Bowes, 16 East, 110; Howe v. Bowes, 16 East, 
 112 ; S. C, in error, 5 Taunt. 30 ; Trecofchick v. Edwin, 1 Stark. 468 ; Em- 
 blin V. Dartnell. 12 M. &. W. 830. 
 
294 PKOMISSOEY NOTES. [CHAP. VI. 
 
 ligation to pay the Note, until presentment and demand has 
 been actually made at the banker's or other specified place ;^ 
 
 you say that the law is, though a man draw generally, the drawee may ac- 
 cept specially, it is the consequence of the law which imposes duties upon 
 the holder' to give notice to the drawer to keep alive the drawer's liability, 
 and that inconvenience certainly is not quite so large as if the acceptor re- 
 fused to accept at all. Then, it is said, that this will impose great difficulty 
 to the indorsee ; that a person sometimes becomes an indorsee before and 
 sometimes after acceptance ; if he become an indorsee before, he may find 
 a special acceptance when he expected to have a general acceptance ; but 
 then, when the Bill is indorsed to him unaccepted, he does not know wheth- 
 er it will ever be accepted ; and, if he do not know that it will be ever ac- 
 cepted, he cannot tell whether it be accepted specially. He knows, there- 
 fore, at the time of taking that Bill by indorsement, that he is to look out 
 for such an acceptor as he can find. What is there inconsistent with the 
 rule of law or convenience in this ? I cannot see anything. It would be a 
 very unnecessary fatigue to your lordships to go through the whole of this 
 case from the beginning to the end. It does appear to me, that no one can 
 say the case is settled in law ; you must therefore go back to principle. If 
 you go back to principle, and admit that a man may give a qualified accept- 
 ance, the question is, whether this is a qualified acceptance, ay or no. If it 
 be a qualified acceptance, — if it be an acceptance where the contract of 
 the party is to pay at Sir John Pei'ring & Co.'s, — then I state it to be in 
 pleading settled matter, that you must declare according to the contract, 
 and that you must aver all that the nature of that contract makes neces- 
 sary. If that be so, if it be a special contract, and if it be necessary for you 
 to aver all which the contract contains, how can it be said that it is not to be 
 shown in the nature of the demand, but that it must be left to be shown in 
 the defence ? It appears to me, that this position cannot be maintained. My 
 lords, with respect to the cases of bonds, which have been cited, they differ 
 altogether from a contract of this nature. You bring your action upon a 
 bond for the penalty ; it must, therefore, be matter of defence to say, that the 
 bond would have been paid at a particular place, — for that will be in the 
 condition of the bond ; when you pray oyer of the bond, you defend your- 
 self by saying that you have performed that condition, and that, therefore, 
 you are to be excused from the payment of the debt. These eases, there- 
 fore, have no application to the case before your lordships. There is another 
 set of cases, in which it is said, that, if there be an antecedent debt, the ac- 
 ceptance must be taken to be general. Between the acceptor and holder 
 there is seldom an antecedent debt ; there may be an antecedent debt be- 
 tween the drawer and acceptor of the Bill ; I wish that there had been an 
 
 ' Chitty on Bills, ch. 5, p. 174 (8th edit.) ; Turner v. Hayden, 4 B. 
 &C. 1. 
 
CHAP. VI.] PRESENTMENT FOR PAYMENT. 295 
 
 and if he has suffered any loss or injury by the want of a due 
 presentment, to the extent of that loss or injury he will be 
 discharged as against the holder.^ 
 
 § 228. In America, a doctrine somewhat different pre- 
 vails, if not universally, at least to a great extent. It was 
 probably in the first instance adopted from the supposed ten- 
 dency of the English authorities to the same result; and 
 there certainly was much conflict in the authorities, until the 
 
 antecedent debt in all cases, for accommodation Bills have been the ruin of 
 many ; but, with respect to the acceptor, it is not true that he must be an- 
 tecedently the debtor ; and all the cases with respect to the qualified ac- 
 ceptance show that ; for a man may accept to pay half the Bill in money, and 
 half in goods ; he may accept to pay out of the produce of a cargo consigned 
 to him, when that cargo comes to this country. When your lordships look 
 to the situation of a consignee, you will find that his acceptance is always 
 qualified. A ship's cargo comes from the West Indies, and the Bill with it ; 
 the acceptance of such Bill will be, of course, an acceptance to pay in Lon- 
 don. In every vie w of this case, I take the liberty to state to your lordships, 
 as my opinion (certainly stating it with infinite diffidence, as I ought, recol- 
 lecting that I am obliged to differ in opinion from those whose judgments no 
 man can respect more than I do) , that this is a contract to pay at Sir John Per- 
 ring & Co.'s, which is not the contract stated in the first count of the decla- 
 ration ; -for that count wants that averment ; and the consequence is, that 
 the judgment of the Court of King's Bench must be reversed. I do not 
 think that it will be of the least consequence to the commercial world ; for 
 it will be so easy to adopt forms of words which leave no doubt as to what 
 is meant, that I am perfectly sure, if there were any inconvenience arising 
 from the decision, if your lordships think proper to make it, that those who 
 do not wish to have the inconvenience have nothing to do but to use two or 
 three words, which will guard them from it. But the question is. What is 
 the law of this day upon this contract, as set forth in this first count of this 
 declaration ? I have already stated to your lordships in a few words what 
 my opinion is, and I sincerely believe it to be founded in clear principles of 
 law ; although, when I state that I do believe it to be so founded, I cannot 
 but recollect (and I do that with infinite respect) that I am differing in 
 opinion with those whose opinion is infinitely superior to mine. But my 
 duty is not to state their opinion, but to express my own." See also Gibb 
 V. Mather, 2 Cr. & Jer. 254; S. C, 8 Bing. 214. In Indiana, the English 
 doctrine is adopted; Palmer u. Hughes, 1 Black. 329. See also Bank of 
 the State v. Bank of Cape Fear, 13 Ired. 75. 
 
 ' Rhodes v. Gent, 5 B. & Aid. 244 ; Turner v. Hayden, 4 B. &. C. 1 ; 
 Pryor v. Wright, 14 Ark. 191. 
 
296 PROMISSORY NOTES. [CHAP. VI. 
 
 doctrine was put at rest by the final decision in the House of 
 Lords ; a decision which seems founded upon the most solid 
 principles, and to be supported by the most enlarged public 
 policy, as to the rights and duties of parties. The received 
 doctrine in America seems to be this ; that as to the acceptor 
 of a Bill of Exchange, and the maker of a Promissory Note, 
 payable at a bank, or other specified place, the same rule ap- 
 plies, that is, that no presentment or demand of payment 
 need be made at the specified place, on the day when the 
 Bill or Note becomes due, or afterwards, in order to main- 
 tain a suit against the acceptor or maker ; and, of course, 
 that there need be no averment in the declaration in any suit 
 brought thereon, or any proof at the trial, of any such pre- 
 sentment or demand.^ But that the omission or neglect is a 
 matter of defence on the part of the acceptor or maker. If 
 the acceptor or maker had funds at the appointed place, at 
 the time, to pay the Bill or Note, and it was not duly pre- 
 sented, he will in the suit be exonerated, not indeed from 
 the payment of the principal sum, but from the payment of 
 all damages and costs in that suit. If by such omission or 
 neglect of presentment and demand he has sustained any 
 loss or injury, as if the Bill or Note were payable at a bank, 
 and the acceptor or maker had funds there at the time, which 
 have been lost by the failure of the bank, then, and in such- 
 case, the acceptor or maker will be exonerated from liability 
 to the extent of the loss or injury so sustained.^ 
 
 ' Martin v- Hamilton, 5 Harring. 314; Reeve v. Park, 6 Mich. 240; 
 Montgomery r. Tutt, 11 Cal. 307. 
 
 - " The doctrine maintained in the American Courts is fully expounded in 
 the case ofWallace v. M'Connell, 13 Peters, 136. Mr. Justice Thompson, 
 on that occasion, in delivering the opinion of the Supreme Court of the 
 United States, after stating the facts (the action being brought on a Prom- 
 issory Note against the maker, by the payee, the Note being payable at the 
 Bank of the United States, at Nashville, and the declaration containing no 
 allegation of any presentment or demand at the bank), said : " The question 
 raised, as to the sufBciency of the declaration in a case where the suit is by 
 the payee against the maker of a Promissory Note, never has received the 
 direct decision of this Court. In the case of The Bank of the United States 
 
CHAP. VI.] PRESENTMENT FOR PAYMENT. 297 
 
 § 229. The ground upon wliich the American doctrine is 
 placed is, that the acceptor or maker is the promissory debtor, 
 
 V. Smith, 11 Wheat. 172, the Note upon which the action was founded was 
 made payable at the office of discount and deposit of the Bank of the 
 United States, in the city of Washington ; and the suit was against the 
 indorser, and the question turned upon the sufficiency of the averment in 
 the declaration of a demand of payment of the maker. And the Court 
 said, when, in the body of a Note, the place of payment is designated, the 
 indorser has a right to presume that the maker has provided funds at such 
 place to pay the Note, and has a right to require the holder to apply at 
 such place for payment. In the opinion delivered in that case, the ques- 
 tion now presented in the case before us is stated ; and it is said, whether, 
 where the suit is against the maker of a Promissory Note, or the acceptor 
 of a Bill of Exchange, payable at a particular place, it is necessary to aver 
 a demand of payment at such place, and upon the trial to prove such de- 
 mand, is a question upon which conflicting opinions have been entertained 
 in the Courts in Westminster Hall; but that the question in such case 
 may, perhaps, be considered at rest in England, by the decision of the late 
 case of Rowe v. Young, 2 Brod. & Bing. 165, in the House of Lords ; where 
 it was held, that if a Bill of Exchange be accepted, payable at a particular 
 place, the declaration on such Bill against the acceptor must aver present- 
 ment at that place, and the averment must be proved. But it is there said, 
 a contrary opinion has been entertained by Courts in this country ; that a 
 demand on the maker of a Note, or the acceptor of a Bill, payable at a 
 specific place, need not bg averred in the declaration, or proved on the 
 trial ; that it is not a condition precedent to the plaintiff's right of recovery. 
 As matter of practice, application will generally be made at the place ap- 
 pointed, if it is believed that funds have been there placed to meet the 
 Note or Bill. But if the maker or acceptor has sustained any loss by the 
 omission of the holder to make such application for payment, at the place 
 appointed, it is matter of defence to set up by plea and proof But it is 
 added, as this question does not necessarily arise in this case, we do not 
 mean to be understood as expressing any decided opinion upon it, although • 
 we are strongly inclined to think, that as against the maker of a Note, or 
 the acceptor of a Bill, no averment or proof of a demand of payment at the 
 place designated would be necessary. The question now before the Court 
 cannot, certainly, be considered as decided by the case of the Bank of 
 the United States v. Smith. But it cannot be viewed as the mere obiter 
 opinion of the judge who delivered the judgment of the Court. The 
 attention of the Court was drawn to the question now before the Court ; 
 and the remarks made upon it, and the authorities referred to, show that 
 this Court was fully apprised of the conflicting opinions of the English 
 Courts on the question ; and that opinions contrary to that of the House of 
 Lords, in the case of Rowe v. Young, had been entertained by some of the 
 
298 PEOMISSOEY NOTES. [CHAP. VI. 
 
 and the debt is not as to him discharged by the omission or 
 neglect to demand payment when the debt became due, at the 
 
 Courts in this country ; and under this view of the question, the Court say 
 they are strongly inclined to adopt the American decisions. As the precise 
 question is now presented by this record, it becomes necessary to dispose 
 of it. It is not deemed necessary to go into a critical examination of the 
 English authorities upon this point ; a reference to the case in the House 
 of Lords, which was decided in the year 1820, shows the great diversity of 
 opinion entertained by the English judges upon this question. It was, 
 however, decided, that if a Bill of Exchange is accepted, payable at a par- 
 ticular place, the declaration, in an action on such Bill against the acceptor, 
 must aver presentment at that place, and the averment must be proved. 
 The Lord Chancellor, in stating the question, said this was a very fit ques- 
 tion to be brought before the House of Lords, because the state of ^he law, as 
 actually administered in the courts, is such that it would be infinitely better 
 to settle it in any way than to permit so controversial a state to exist any 
 longer. That the Court of King's Bench has been of late years in the 
 habit of holding that such an acceptance as this is a general acceptance ; 
 and that it is not necessary to notice it as such in the declaration, or to 
 prove presentment, but that it must be considered as matter of defence ; 
 and that the defendant must state himself ready to pay at the place, and 
 bring the money into court, and so bar the action by proving the truth of 
 that defence. On the contrary, the Court of Common Pleas was in the 
 habit of holding, that an acceptance like this was a qualified acceptance, 
 and that the contract of the acceptor vras to pay at the place ; and that, as 
 matter of pleading, a presentment at the place stipulated must be averred, 
 and that evidence must be given to sustain that averment ; and that the 
 holder of the Bill has no cause of action unless such demand has been 
 made. In that case, the opinion of the twelve judges was taken and laid 
 before the House of Lords, and will be found reported in an appendix in 
 the report of the case of Eowe v. Young, 2 Brod. & Bing. 180. In which 
 opinion all the cases are referred to in which the question had been drawn 
 into discussion ; and the result appears to have been, that eight judges out of 
 the twelve sustained the doctrine of the King's Bench on this question ; not- 
 withstanding which the judgment was reversed. It is fairly to be inferred, 
 from an act of Parliament passed immediately thereafter, 1 and 2 Geo. 4, 
 ch. 78, that this decision was not satisfactory. By that act it is declared, 
 that ' after the 1st of August, 1821, if any person shall accept a Bill of 
 Exchange, payable at the house of a banker, or other place, without fur- 
 ther expression in his acceptance, such acceptance shall be deemed and 
 taken to be, to all intents and purposes, a general acceptance of such Bill. 
 But if the acceptor shall, in his acceptance, express that he accepts the Bill 
 payable at a banker's house or other place only, and not otherwise, or 
 elsewhere, such acceptance shall be a qualified acceptance of such Bill ; and 
 
CHAP. VI.] PRESENTMENT FOR PAYMENT. 299 
 
 place where it was payable. Assuming this to be true, it hj 
 no means follows that the acceptor or maker is in default, 
 
 the acceptor shall not be liable to pay the Bill, except in default of payment, 
 when such payment shall have been first duly demanded, at such banker's 
 house or other place.' Bayley on Bills, 200, note. In most of the cases 
 which have arisen in the English Courts, the suit has been against the 
 acceptor of the Bill ; and in some cases a distinction would seem to be 
 made between such a case and that of a Note, when the action is against 
 the maker, and the designated place is in the body of the Note. But there 
 can be no solid grounds upon which such a distinction can rest. The ac- 
 ceptor of a Bill stands in the same relation to the holder as the maker of 
 a Note does to the payee ; and the acceptor is the principal debtor, in the 
 case of a Bill, precisely like the maker of a Note. The liability of the 
 acceptor grows out of, and is to be governed by, the terms of his acceptance, 
 and the liability of the maker of a Note grows out of, and is to be governed 
 by, the terms of his Note ; and the place of payment can be of no more 
 importance in the one case than in the other. And in some of the cases 
 where the point was made, the action was against the maker of a Promis- 
 sory Note, and the place of payment designated in the body of the Note. 
 The iase of NlchoUs v. Bowes, 2 Camp. 498, was one of that description, 
 decided in the year 1810; and it was contended, on the trial, that the 
 plaintiff was bound to show that the Note was presented at the banking- 
 house where it was made payable. But Lord EUenborough, before whom 
 the cause was tried, not only decided that no such proof was necessary, but 
 would not suffer such evidence to be given ; although the counsel for the 
 plaintiff said he had a witness in court, to prove the Note was presented 
 at the banker's the. day it became due ; his lordship alleging that he was 
 afraid to admit such evidence, lest doubts should arise as to its necessity. 
 And in the case of Wild v. Kennards, 1 Camp. 425, note, Mr. Justice Bay- 
 ley, in the year 1809, ruled, that if a Promissory Note is made payable at 
 a particular place, in an action against the maker, there is no necessity for 
 proving that it was presented there for payment. The case of Sanderson 
 V. Bowes, 14 East, 500, decided in the King's Bench in the year 1811, is 
 sometimes referred to as containing a different rule of construction of the 
 same words, when used in the body of a Promissory Note, from that which 
 is given to them when used in the acceptance of a Bill of Exchange. But 
 it may be well questioned, whether this use warrants any such conclusion. 
 That was an action on a Promissory Note, by the bearer against the maker. 
 The Note, as set out in the declaration, was a promise to pay on demand at 
 a specified place, and there was no averment that a demand of payment had 
 been made at the place designated. To which declaration the defendant 
 demurred ; and the counsel, in support of the demurrer, referred to cases 
 where the rule had been applied to acceptances on Bills of Exchange ; but 
 contended, that the rule did not apply to a Promissory Note, when the 
 
300 PEOMISSOBY NOTES. [CHAP. VI. 
 
 until a demand of payment has been made at the place of 
 payment ; for the terms of his contract import an express 
 
 place is designated in the body of the Note. Lord EUenborough, in the 
 course of the argument, in answer to some cases referred to by counsel, 
 observed ; those are cases where money is to be paid, or something to be 
 done at a particular time as well as place, therefore the party (defendant) 
 may readily make an averment, that he was ready at the time and place 
 to pay, and that the other party was not ready to receive it ; but here the 
 time of payment depends entirely on the pleasure of the holder of the Note. 
 It is true, Lord EUenborough did not seem to place his opinion, in the ulti- 
 mate decision of the cause, upon this ground. But the other judges did 
 not allude to the distinction taken at the bar between that case and the 
 acceptance of a Bill in like terms ; but place their opinions upon the terms 
 of the Note itself, being a promise to pay on demand at a particular place. 
 And there is certainly a manifest distinction between a promise to pay on 
 demand at a given place, and a promise to pay at a fixed time at such 
 place. And it is hardly to be presumed that Lord EUenborough intended 
 to rest his judgment upon a distinction between a Promissory Note and a 
 Bill of Exchange, as both he and Mr. Justice Bayley had, a very short 
 time before, in the cases of Nicholls v. Bowes, d,nd Wild v. Rennards, above 
 referred to, applied the same rule of construction to Promissory Notes, 
 where the promise was contained in the body of the Note. Where the 
 promise is to pay on demand at a particular place, there is no cause of 
 action until the demand is made ; and the maker of the Note cannot dis- 
 charge himself by an oifer of payment, the Note not being due until de- 
 manded. Thus we see that until the late decision in the House of Lords, 
 in the case of Rowe v. Young, and the act of Parliament passed soon there- 
 after, this question was in a very unsettled state in the English Courts ; and 
 without undertaking to decide between those conflicting opinions, it may 
 be well to look at the light in which this question has been viewed in the 
 courts in this country. This question came before the Supreme Court of 
 the State of New York in the year 1809, in the case of Foden and Slater 
 V. Sharp, 4 John. 183 ; and the Court said, the holder of a Bill of Exchange 
 need not show a demand of payment of the acceptor, any more than of the 
 maker of a Note. It is the business of the acceptor to show that he was 
 ready at the day and place appointed, but that no one came to receive the 
 money ; and that he was always ready afterwards to pay. This case shows 
 that the acceptor of a Bill, and the maker of a Note, were considered as 
 standing on the same footing with respect to a demand of payment at the 
 place designated. And in the case of Wolcott v. Van Santvoord, 17 John. 
 248, which came before the same Court in the year 1819, the same question 
 arose. The action was against the acceptor of a Bill, payable five months 
 after date at the Bank of Utica, and the declaration contained no aver- 
 ment of a demand at the Bank of Utica ; and upon a demurrer to the decla- 
 
CHAP. VI.] PRESENTMENT FOE PAYMENT. 301 
 
 condition that he will pay upon due presentment at that place, 
 and not that he will pay upon demand elsewhere ; and the 
 
 ration, the Court gave judgment for the plaintiff. Chief Justice Spencer, in 
 delivering the opinion of the Court, observed that the question had been al- 
 ready decided in the case of Foden v. Sharp ; but considering the great diver- 
 sity of opinion among the judges in the EnglishCourts on the question, he took 
 occasion critically to review the cases which had come before those Courts, 
 and shows very satisfactorily that the weight of authority is in conformity to 
 that decision, and the demurrer was accordingly overruled, and the law in 
 that State for the last thirty years has been considered as settled upon this 
 point. And although the action was against the acceptor of a Bill of Exchange, 
 it is very evident that this circumstance had no influence upon the decision ; 
 for the Court say, that in this respect the acceptor stands in the same 
 relation to the payee as the maker of a Note does to the indorsee. He is 
 the principal, and not a collateral debtor. And the case of Caldwell v. 
 Cassidy, 8 Cowen, 271, decided in the same Court in the year 1828, the 
 suit was upon a Promissory Note, payable sixty days after date at the 
 Franklin Bank in New York ; and the Note had not been presented or 
 payment demanded at the bank ; the Court said, this case has been already 
 decided by this Court in the CEise of Wolcott v. VantSantvoord. And after 
 noticing some of the cases in the English Courts, and alluding to the confu- 
 sion that seemed to exist there upon the question, they add that, whatever 
 be -the rule in other Courts, the rule in this Court must be considered set- 
 tled, that, where a Promissory Note is made payable at a particular place 
 on a day certain, the holder of the Note is not bound to make a demand at 
 the time and place by way of a condition precedent to the bringing an 
 action against the maker. But, if the maker was ready to pay at the time 
 and place, he may plead it, as he would plead a tender in bar of damages 
 and costs, by bringing the money into court. It is not deemed necessary 
 to notice very much at length the various cases that have arisen in the 
 American Courts upon this question ; but barely to refer to such as have 
 fallen under the observation of the Court, and we briefly state the point 
 and decision thereupon, and the result will show a uniform course of adjudi- 
 cation, that in actions on Promissory Notes against the maker, or on Bills 
 of Exchange, where the suit is against the maker in the one case, and 
 acceptor in the other, and the Note or Bill made payable at a specified 
 time and place, it is not necessary to aver in the declaration, or prove on 
 the trial, that a demand of payment was made in order to maintain the 
 action. But that, if the maker or acceptor was at the place at the time 
 designated, and was ready and offered to pay the money, it was matter of 
 defence to, be pleaded and proved on his part. The case of Watkins w. 
 Crouch & Co., in the Court of Appeals of Virginia, 5 Leigh, 522, was a 
 suit against the maker and indorser, jointly, as is the course in that State 
 upon a Promissory Note like the one in suit. The Note was made payable 
 
302 PROMISSORY NOTES. [CHAP. VI. 
 
 omission or neglect of duty, on the part of the holder, to 
 
 make presentment at that place, ought not to change the na- 
 
 at a specified time, at the Farmers' Bank, at Richmond, and the Court of 
 Appeals, in the year 1834, decided, that it was not necessary to aver and 
 prove a presentation at the bank, and demand of payment, in order to 
 entitle the plaintiff to recover against the maker ; but that it was neces- 
 sary in order to entitle him to recover against the indorser ; and the Presi- 
 dent of the Court went into a very elaborate consideration of the decisions 
 of the English Courts upon the question; and to show, that, upon Common- 
 Law principles, applicable to Bonds, Notes, and other contracts for the 
 payment of money, no previous demand was necessary in order to sustain 
 the action, but that a tender and readiness to pay must come by way of 
 defence from the defendant ; and that looking upon the Note as commercial 
 paper, the principles of the Common Law were clearly against the necessity 
 of such demand and proof, where the time and place were specified, though 
 it would be otherwise where the place, but not the time, was specified ; a 
 demand in such case ought to be made ; and he examined the case of San- 
 derson V. Bowes, to show that it turned upon that distinction, the Note 
 being payable on demand at a specified place. The same doctrine was 
 held by the Court of Appeals of Maryland, in the case of Bowie v. Duvall, 
 1 Gill & John. 175 ; and the New York cases, as well as that of the Bank 
 of the United States v. Smith, 11 Wheat. 171, are cited with approbation, 
 and fully adopted ; and the Court put the case upon the broad ground, 
 that when the suit is against the maker of a Promissory Note, payable at a 
 specified time and place, no demand is necessary to be averred, upon the 
 principle that the money to be paid is a debt from the defendant; that 
 it is due generally and universally, and will continue due, though there 
 be a neglect on the part of the creditor to attend at the time and place to 
 receive or demand it. That it is matter of defence on the part of the 
 defendant to show that he was in attendance to pay, but that the plaintiff 
 was not there to receive it ; which defence generally will be in bar of 
 damages only, and not in bar of the debt. The case of Ruggles v. Patten, 
 8 Mass. 480, sanctions the same rule jot construction. The action was on a 
 Promissory Note for the payment of money, ata day and place specified; 
 and the defendant pleaded, that he was present at the time and place, and 
 ready and willing to pay according to the tenor of his promises, in the sec- 
 ond count of the declaration mentioned, and avers that the plaintiff was 
 not then ready or present at the bank to receive payment, and did not 
 demand the same of the defendant, as the plaintiff in his declaration had 
 alleged ; the Court said this was an immaterial issue, and no bar to an 
 action or promise to pay money. So, also, in the State of New Jersey, the 
 same rule is adopted. In the case of Weed v. Van Houten, 4 Halst. N. J. 
 189, the Chief Justice says : ' The question is, whether, in an action by the 
 payee of a Promissory Note, payable at a particular place and not on 
 
CHAP. VI.] PRESENTMENT FOE PAYMENT. 303 
 
 ture or character of the obligations of the acceptor or maker. 
 Now the right to bring an action presupposes a default on 
 
 demand, but at time, it is necessary to aver a presentment of the Note and 
 demand of payment by the holder at that place, at the maturity of the. Note. 
 And upon this question he says, I have no hesitation in expressing my entire 
 concurrence in the American decisions, so far as it is necessary for the pres- 
 ent occasion ; that a special averment of presentment at the place is not 
 necessary to the validity of the declaration, nor is proof of it necessary upon 
 the trial. This rule, 1 am satisfied, is most conformable to sound reason, 
 most conducive to public convenience, best supported by the general prin- 
 ciples and doctrines of the law, and most assimilated to the decisions which 
 bear analogy more or less directly to the subject.' The same rule has been 
 fully established by the Supreme Court of Tennessee, in the cases of M'Nairy 
 V. Bell, 1 Yerg. 502, and Mulherrin v. Hannum, 2 Terg. 81, and the rule 
 sustained and enforced upon the same principles and course of reasoning 
 upon which the other cases referred to have been placed. And no case, in 
 an American Court, has fallen under our notice, where a contrary doctrine 
 has been asserted and maintained. And it is to be observed, that most of 
 the cases which have arisen in this country, where this question has been 
 drawn into discussion, were upon Promissory Notes, where the place of pay- 
 ment was, of course, in the body of the Note. After such a uniform course 
 of decisions for at least thirty years, it would be inexpedient to change the 
 rule, even if the grounds upon which it was originally established might be 
 questionable ; which, however, we do not mean to intimate. It is of the 
 utmost importance that all rules relating to commercial law should be stable 
 and uniform. They are adopted for practical purposes, to regulate the 
 course of business in commercial transactions ; and the rule here established 
 is well calculated for the convenience and safety of all parties. The place 
 of payment in a Promissory Note, or in an acceptance of a Bill of Exchange, 
 is always matter of arrangement between the parties for their mutual 
 accommodation, and may be stipulated in any manner that may best suit 
 their convenience. And when a Note or Bill is made payable at a bank, as 
 is generally the case, it is well known, that, according to the usual, course 
 of business, the Note or Bill is lodged at the bank for collection ; and if the 
 maker or acceptor calls to take it up when it falls due, it will be delivered 
 to him, and the business is closed. But should he not find his Note or Bill 
 at the bank, he can deposit his money to meet the Note when presented, 
 and should he be afterwards prosecuted, he would be exonerated from all 
 costs and damages, upon proving such tender and deposit. Or, should the 
 Note or Bill be made payable at some place other than a bank, and no 
 deposit could be made, or he should choose to retain his money in his own 
 possession, an offer to pay at the time and place would protect him against 
 interest and costs, on bringing the money into court ; so that no practical 
 inconvenience or hazard can result from the establishment of this rule to 
 
304 PROMISSORY NOTES. [CHAP. VI. 
 
 the part of the acceptor or maker ; and it may, after all, 
 make a great difference -to him, not only in point of conven- 
 ience, but in point of loss by exchange, as well as of expense, 
 whether, if he agrees to pay the money in Mobile, or in New 
 Orleans, he may be required, without any default on his own 
 
 the maker or acceptor. But, on the other hand, if a presentment of the 
 Note and demand of payment at the time and place are indispensable to 
 the right of action, the holder might hazard the entire loss of his whole 
 debt." See also Hart v. Green, 8 Verm. 191, S. P. It is by no means a 
 legitimate consequence of the English doctrine (as suggested by the learned 
 judge), that, unless presentment is made at the time and place, the holder 
 would hazard the entire loss of his whole debt ; for the English doctrine 
 does not require that he should demand payment at the place, on the very 
 day on which the Note is due, to charge the maker. It will be sufficient if 
 at any future time he makes a demand at the place, to charge the maker, 
 unless, indeed, the maker has, by such neglect of the holder, suffered any 
 loss ; and if he has, in all reason and justice the holder ought to bear it. It 
 may not be improper for me to add, that, being a Judge of the Supreme 
 Court of the United States, when both the case of United States Bank v. 
 Smith, 11 Wheat. 172, and the case of Wallace v. M'Connell, 13 Peters, 
 136, were decided, I was not present at the argument of the former ; and 
 in the latter case I dissented from the opinion of the Court, although my 
 dissent was not expressed in open Court. See also the learned note of Mr. 
 Chancellor Kent, in his Commentaries, 3 Kent, Lect. 44, p. 97, note e (5th 
 edit.) ; Id. p. 99, note b, where the principal American authorities on each 
 side of the question are cited. The learned commentator holds the English 
 rule to be the true one, and adds : " This is the plain sense of the contract, 
 and the words, ' accepted, payable at a given place,' are equivalent to an 
 exclusion of a demand 'elsewhere." Story on Bills, § 356. In Louisiana it 
 is the settled rule, that presentment at the place where a Note is payable 
 is indispensable to charge the maker, and a fortiori to charge the indorser. 
 Hart u. Long, 1 Rob. Louis. 83; Stillwell v. Robb, 1 Rob. Louis. 311; 
 Wood V. Mullen, 3 Rob. Louis. 395. In Armistead v. Armisteads, 10 Leigh, 
 512, the Court of Appeals of Virginia disapproved of the English doctrine 
 and sustained the American. [See also Woodbury, J., in Brown v. Noyes, 
 2 Wood. & Minot, 84; Bacon v. Dyer, 3 Fairf. 19; Carter v. Smith, 9 
 Cush. 321 ; Dockray v. Dunn, 37 Maine, 442.] See also North Bank ?;. 
 Abbot, 13 Pick. 465 ; Payson v. Whitcomb, 15 Pick. 212 ; Church v. Clark, 
 21 Pick. 310; Carley v. Vance, 17 Mass. 389 ; Ruggles v. Patten, 8 Mass. 
 480 ; Mellon v. Croghan, 15 Martin, 423 ; Smith v. Robinson, 2 Miller, 
 Louis. 405 ; Palmer v. Hughes, 1 Black. Ind. 328 ; Gale v. Kemper, 10 
 Louis. 208; Warren v. Allnutt, 12 Louis. 454; Thompson u. Cook, 2 
 McLean, 125 ; Ogden v. Dobbin, 2 Hall, N. Y. 112 ; Picquet v. Curtis, 1 
 Sumner, 478. 
 
CHAP. VI.] PBESENTMENT FOE PAYMENT. 305 
 
 part, notwithstanding he has funds there, to pay the same 
 money in New York or in Boston.^ He may well say : " Non 
 in hsec foedera veni." 
 
 § 230. But, although the English and American authori- 
 ties are not in harmony with each other on the question, 
 whether a presentment and demand of payment should be 
 made at the bank, or other place, where a Promissory Note or 
 Bill of Exchange is made payable, before an action can be 
 brought thereon against the maker or acceptor ; yet they are 
 entirely in coincidence with each other on the point that it is 
 indispensable, in order to charge the indorser or the drawer, 
 that a presentment for payment should be made, not only at 
 the place, but also on the very day of the maturity of the Note 
 or Bill, otherwise the indorser or drawer will be absolutely 
 discharged.^ The reason is, that the undertaking of the in- 
 dorser and drawer is conditional, and conseqiiently, unless 
 there be a strict compliance with the condition, no right can 
 attach against the indorser or the drawer.^ Thus, a differ- 
 ent rule is applied as to the obligations of the holder to make 
 presentment and demand of payment in respect to the draw- 
 er or indorser from that which applies to the maker or ac- 
 ceptor. And yet it would seem that the contract, on the part 
 of the maker and acceptor, naturally imported that he would 
 pay at the place agreed on, and not elsewhere, and therefore 
 to make it the duty of the holder first to apply there for pay- 
 ment before he could charge the maker or acceptor with any 
 default. But the time of payment seems in this respect sus- 
 
 ' ' Ibid. See Lord Eldon's judgment in Eowe v. Young, 2 Brod. & Bing. 
 165 ; S. C, 2 Bligh, 391. 
 
 ' Chitty on Bills, ch. 5, pp. 172, 173 (8th edit.) ; Id. ch. 7, pp. 321- 
 323 ; Id. ch. 9, pp. 391-400; Bayley on Bills, ch. 1, § 9, pp. 29, 80 (5th 
 edit.); Id. ch. 7, § 1, pp. 219-223; Gibb v. Mather, 2 Cr. & Jer. 
 254; S. C, 8 Bing. 214; United States Bank v. Smith, 11 Wheat. 171 ; 
 Wallace u. M'Connell, 13 Peters, 136 ; Woodbridge v. Brigham, 13 Mass. 
 556 ; Thomson ofi Bills, ch. 6, § 2, pp. 420 - 424 (2d edit.) ; Shaw v. 
 Keed, 12 Pick. 132 ; North Bank v. Abbot, 13 Pick. 465 ; Ferner v. Wil- 
 liams, 37 Barb. 9. 
 
 » Ibid. 
 
 20 
 
306 PROMISSORY NOTES. [CHAP. VI. 
 
 ceptible, as to the maker and acceptor, of a different inter- 
 pretation from the place of payment. The money is treated 
 as primarily the debt of the maker or acceptor ; and yet he 
 cannot be called upon to pay it before the day when it be- 
 comes due ; and there seems no reason to say, that an omis- 
 sion to demand payment of the debt on that very day absolves 
 him from all obligation to pay the money at any future time, 
 any more than it would absolve him from the payment of any 
 other debt.^ It is, indeed, by the Common Law, generally, 
 the duty of the debtor to seek the creditor, and pay his debt 
 when it becomes due, unless it is otherwise agreed between 
 them ; but it is otherwise agreed between them, when a spe- 
 cific place is named, where it is to be paid ; for then it imports 
 not to be payable elsewhere.^ 
 
 ' Chitty on Bills, ch. 9, pp. 391, 392 (8th edit.). Mr. Chitty here says : 
 " It is a general rule of law, that, where there is a precedent or duty, the 
 creditor need not allege or prove any demand of payment before the ac- 
 tion brought, it being the duty of the debtor to find out his creditor, and 
 tender him the money, and, as it is technically said, the bringing of the ac- 
 tion is a sufficient request. It might not, perhaps, be unreasonable, if the 
 law in all cases required presentment to the acceptor of a Bill, or maker of 
 a Note, before an action be commenced against him, because otherwise he 
 might, on account of the negotiable quality of the instrument, and the con- 
 sequent difficulty to find out the holder of it, on the day of payment, in 
 order to make a tender to him, be subjected to an action without any de- 
 fault whatever ; and the engagement of the acceptor of a Bill, or maker of 
 a Note, is to pay the money when due to the holder, who shall for that 
 purpose make presentment. And one reason why a party cannot recover 
 at law on a lost Bill or Note is, that the acceptor of the one and maker of 
 the other has a right to insist on having it delivered up to him on his 
 paying it. It seems, however, that, in general, the acceptor or maker of a 
 Note cannot resist an action on account of neglect to present the instru- 
 ment at the precise time when due, or of an indulgence to any of the other 
 parties. And, on the above-mentioned principle, that an action is of itself 
 a sufficient demand of payment, it has been decided, that the acceptor or 
 maker of a Note cannot set up as a defence the want of a presentment to 
 him, even before the commencement of the action, and although the instru- 
 ment be payable on demand. But in such a case, upoo»au early applica- 
 tion, the Court would stay proceedings without costs." See also Thomson 
 on Bills, ch. 5, § 3, pp. 383, 384 (2d edit.). 
 
 ' See 3 Kent, Lect. 44, p. 99, and note (5th edit.) ; Thomson on Bills, 
 ch. 6, § 1, p. 420 (2d-edit,). 
 
CHAP. VI.] PEESENTMENT FOR PAYMENT. 307 
 
 § 231. If a Promissory Note be made payable at either of 
 two specified places, as, for example, at Tunbridge or at Lon- 
 don, the holder has a right to present it at either place for 
 payment, at his election, and is not bound to present it at 
 both, although, if presented at one place it would have been 
 paid, and it has been dishonored at the other.^ The reason 
 of this doctrine is, that the alternative is presumed to be in- 
 troduced for the benefit of the holder, and not for that of the 
 maker. And such presentment at either place will not only 
 be sufHcient to charge the maker, but to charge the i^dorsers 
 also.^ If a Promissory Nc)te is made payable in a large city, 
 as, for example, in London, and no particular place of pre- 
 sentment is named, and the maker does not reside there, 
 and has no place of business there, it seems, that if, upon 
 reasonable inquiry there, the maker cannot be found, nor any 
 person ready to pay it, the Note may be treated as dishon- 
 ored by the maker, and the presentment in London by the 
 holder held to be sufficient to charge the indorsers as well as 
 the maker.^ 
 
 § 232. Sometimes, a Promissory Note is made payable at 
 any or either of the banks in a particular city, and in such a 
 case the question may arise, at what bank the holder should 
 present it for payment. The true answer would seem to be, 
 that he may present it for payment at any one bank in the 
 city, at his election ; and if, upon presentment there, pay- 
 ment be refused, it will be sufficient to charge the indorsers, 
 as well as the maker.* Sometimes, all the parties to a Note, 
 
 ' Chitty on Bills, ch. 9, p. 490 (8th edit.) ; Bayley on Bills, ch. 7, § 1, 
 p. 244 (5th edit.) ; Beeching v. Gower, Holt, N. P. 313 ; Story on Bills, 
 §354. 
 
 2 Story on Bills, § 354. 
 
 " Ibid., § 353 ; Boot v. Franklin, 3 John. 208. See Mason v. Franklin, 
 3 John. 202 ; 3 Kent, Lect. 44, pp. 95, 96 (5th edit.). 
 
 ' See North Bank v. Abbot, 13 Pick. 465, 469 ; Maiden Bank v. Bald- 
 win, 13 Gray, 154-156, note; Brickett v. Spaulding, 33 Verm. 107. If a 
 maker desires to make the words " any bank " more definite, he should 
 call upon the holder to make an election, or he should himself elect and 
 give notice thereof to the holder. Brickett v. Spaulding, 33 Verm. 107. 
 
308 PROMISSORY NOTES. [CHAP. VI. 
 
 the maker, the indorsers, and the payee, or other holder, by 
 parol agree, that a Note, payable by its terms generally, shall 
 be presented for payment at a particular place ; in that case, 
 a presentment at the place agreed on will bind all the parties, 
 and no personal demand need be made upon the maker to 
 charge the indorser.^ 
 
 § 233. There does not seem to be any provision in the 
 French law which requires that Promissory Notes should 
 specify any particular place of payment.^ Nor, indeed, is 
 this required in cases of Bills of Exchange, except where 
 they are made payable at some other place than the residence 
 of the acceptor ; and where Bills are so payable, the accept- 
 ance must state the house or domicile where payment there- 
 of is to be made.^ It is therefore probable, that Promissory 
 Notes are not usually in Prance made payable at any partic- 
 ular banking-house, or other place, although there does not 
 seem any reason why they may not be. The common forms 
 given in the text-books contain no such designations of place ; 
 but only the name of the town or city where the Note is 
 made.* 
 
 § 234. Prom what has been already said, it may be in- 
 ferred, and, indeed, it is a clearly established doctrine, that 
 where a Promissory Note is made payable at a particular 
 place, as, for example, at a bank or banker's, in every such 
 case it will be sufficient for the holder to present the same 
 for payment at the specified place ; and he is under no obli- 
 gation whatsoever, in case of its dishonor at that place, to 
 
 * State Bank v. Hurd, 1 2 Mass. 172; Whitwell v. Johnson, 1 7 Mass. 449 ; 
 Brent's Ex'rs v. Bank of Metropolis, 1 Peters, 89 ; Bank of America v. 
 Woodworth, 18 John. 315 ; S. C, in error, 19 John. 391 ; McKee v. Boswell, 
 33 Mo. 567. 
 
 " Code de Commerce, art. 188. 
 
 ' Ibid., art. 123 ; Pardessus, Droit Comm. Tom. 2, § 369 ; Id. § 393 ; Story 
 on Bills, § 359. 
 
 * Ante, § 3, note ; Dupuy de la Serra, L'Art des Lettres de Change, ch. 
 19, pp. 192, 193 (edit. 1789) ; Nouguier, Des Lettres de Change, Torn. 1, 
 Liv. 4, § 1, pp. 496, 497. 
 
CHAP. VI.] PRESENTMENT FOE PAYMENT. 309 
 
 present it for payment elsewhere, or personally to the mak- 
 er.^ The reason is, that, by making it payable at that partic- 
 ular place, the maker impliedly dispenses with the necessity 
 of making any demand \ipon him, either personally or else- 
 where. And this doctrine applies as well to the case of the 
 indorsers, as of the maker of such a Promissory Note ; for 
 the indorsers, equally with the maker in such a case, impli- 
 edly agree that presentment at the place shall be sufiBcient 
 to bind all the parties. 
 
 § 235. Having thus considered the doctrine of present- 
 ment for payment applicable to cases where Promissory "Notes 
 are originally made payable at a particular place, let us, in 
 the next place, pass to the consideration of the doctrine ap- 
 plicable to Promissory Notes payable generally, and without 
 reference to any particular place. This naturally involves 
 the consideration of the mode of presentment in ordinary 
 cases. And here, the general rule is, that the presentment 
 for payment may be made to the maker, personally, or at his 
 dwelling-house, or other place of abode, or at his counting- 
 house, or place of business.^ It seems, that a presentment 
 
 • Chitty on Bills, ch. 9, pp. 399, 400 (8th edit.) ; Bayley on Bills, ch. 
 7, § 1, p. 219 (5tli edit.) ; Saunderson v. Judge, 2 PI. Black. 509 ; Sted- 
 man v. Gooch, 1 Esp. 4 ; De Bergareche v. Pillin, 3 Bing. 476 ; Berkshire 
 Bank v. Jones, 6 Mass. 524, 526 ; Gale o. Kemper's Heirs, 10 Miller, Louis. 
 208; State Bank v. Hard, 12 Mass. 172; FuUerton v. Bank of United 
 States, 1 Peters, 604 ; Bank of United States v. Carneal, 2 Peters, 543; 
 Ogden V. Dobbin, 2 Hall, 112 ; Gillett v. Averill, 5 Denio, 85. 
 
 ' Mr. Chancellor Kent, in his Comm. (Vol. 3, Lect. 44, pp. 95-97, 5th 
 edit.) says : " If the Bill has been accepted, demand of payment must be 
 made when the Bill falls due ; and it must be made by the holder or his 
 agent upon the acceptor, at the place appointed for payment, or at his 
 house or residence, or upon him personally, if no particular place be ap- 
 pointed, and it cannot be made by letter through the post-office. But there 
 is a great deal of perplexity and confusion in the cases on this subject, 
 arising from refined distinctions and discordant opinions ; and it becomes 
 very difficult to know what is precisely the law of the land as to the suffi- 
 ciency of the demand upon the maker of the Note, or the acceptor of the 
 Bill. If there be no particular and certain place identified and appointed, 
 other than a city at large, and the party has no residence there, the Bill 
 
310 PEOMISSOEY NOTES. [CHAP. VI. 
 
 for payment may always be made personally to the maker, 
 wherever he may be found, although he may not be either at 
 his domicile or at his place of business.^ But it is by no 
 means indispensable, in any case, to make a personal present- 
 ment to the maker, if he has a dwelling-house or a place of 
 business. A presentment at the former, whether he be in the 
 hoiise or not, if it be within reasonable hours, will be a due 
 and sufficient presentment to cliarge the other parties to the 
 Note ; and, if made at his place of business, it will be suffi- 
 cient if made within the usual hours of business, although 
 he be, absent therefrom ; for in both instances he is bound 
 to have a suitable person there to answer inquiries and pay 
 
 may be protested in the city on the day without inquiry, for that would be 
 an idle attempt. The general principle is, that due diligence must be used 
 to find out the party and make the demand ; and the inquiry will always 
 be, whether, under the circumstances of the case, due diligence has been 
 used. The agent of the holder in one case used the utmost diligence for 
 several weeks to find the residence of the indorser, in order to give him no- 
 tice of the dishonor of the Bill, and then took a day to consult his principal 
 before he gave the notice, and it was held sufficient. If the party has ab- 
 sconded, that will, as a general rule, excuse the demand. If he has 
 changed his residence to some other place within the same State or juris- 
 diction, the holder must make endeavors to find it, and make the demand 
 there ; though, if he has removed out of the State, subsequent to the making 
 of the Note or accepting the Bill, it is sufficient to present the same at his 
 former place of residence. If there be no other evidence of the maker's 
 residence than the date of the paper, the holder must make inquiry at the 
 place of date ; and the presumption is, that the maker resides where the 
 Note is dated, and he contemplated paying at that place. But it is pre- 
 sumption only ; and if the maker resides elsewhere within the State when 
 the Note falls due, and that be known to the holder, demand must be 
 made at the maker's place of residence." 
 
 ? See Chitty on Bills, § 9, pp. 398-400 (8th edit.) ; Bayley on Bills, ch. 
 7, § 1, pp. 219-223 (5th edit.) ; Fayle v. Bird, 6 B. & C. 531 ; Selby v. 
 Eden, 3 Bing. 611 ; Shed v. Brett, 1 Pick. 413; Turner ;;. Hayden, 4 B. 
 & C. 1, 8; Roscoe on Bills, 147, 148 (edit. 1829). See Pothier, De 
 Change, n. 129 ; Thomson on Bills, ch. 6, § 1, pp. 420, 421 (2d edit.) ; Mc- 
 Gruder v. Bank of Washington, 9 Wheat. 598, 600 ; Story on Bills, §§ 325, 
 351 ; Louis. State Ins. Co. v. Shamburg, 14 Martin, 511 ; Bellievre v. Bird, 
 16 Martin, 186 ; Oakey v. Beauvais, 11 Louis. 489. But see King v. 
 Holmes, 1 Jones, Penn. 456. 
 
CHAP. VI.3 PRESENTMENT FOR PAYMENT. 811 
 
 Lis Notes, if there demanded.^ Where the dwelling-house 
 and place of business are in the same town or city, the pre- 
 sentment for payment may be made at either, and need 
 not be at both, under the like qualification, that it be within 
 reasonable hours.^ The like rule applies, where the dwell- 
 ing-house is in one town or city, and the place of business is 
 in another.^ 
 
 § 236.. It sometimes occurs that the maker of a Promis- 
 sory Note changes his place of domicile or business in the in- 
 termediate period between the time when the Note was made 
 and when it became due. In such a case, it is indispensable 
 to make a presentment and demand of payment at the new 
 domicile or .place of business, if it is known, or can by reason- 
 able diligence and inquiries be found, and it be within the 
 same State, in order to charge the indorsers ; and a present- 
 ment and demand at the old domicile or place of business 
 would be insufficient and improper.* If the maker has re- 
 
 • Chitty on Bills, ch. 9, pp. 398-400 (8tli edit.) ; Bayley on Bills, ch. 7, 
 pp. 21 9 - 226 (5tli edit.) ; Shed v. Brett, 1 Pick. 413 ; State Bank v. Hurd, 1 2 
 Mass. 172; Brent's Ex'rs v. Bank of Metropolis, 1 Peters, 89; Saunderson 
 u. Judge, 2 H. Black. 509; Fenton v. Goundry, 13 East, 465; Bank of 
 Columbia v. Lawrence, 1 Peters, 578 ; Story on Bills, § 351 ; Marius on Bills, 
 182 (2d edit.) ; Id. p. 33 (8tli edit. 1794) ; Elford v. Teed, 1 M. & S. 28 ; 
 Miller v. Hennen, 15 Martin, 587 ; State Bank v. Hennen, 16 Martin, 226 ; 
 Oakey v. Beauvais, 11 Louis. 489 ; Burrows v. Hannegan, 1 McLean, 309. 
 
 ' Ibid. ; Story on Bills, §§ 235, 351 ; Bank of Columbia v. Lawrence, 
 
 I Peters, 582 ; Barnes v. Vaughan, 6 B. I. 259 ; Hartford Bank v. Green, 
 
 II lo. 476. 
 
 ' Ibid. See Bank of Columbia v. Lawrence, 1 Peters, 578. Heineccius 
 states a very curious ancient custom, existing in some parts of Germany, 
 that, if a Bill of Exchange be payable by a Christian to a Jew, the pre- 
 sentment should be made, and payment be demanded, at the house of the 
 Christian ; but, if a Bill is payable by a Jew to a Christian, the payment is 
 to be made by the Jew at the house of the Christian. But, if a Bill be 
 payable by a Jew to a Jew, then the Jew holder must demand payment at 
 the house of the acceptor. Heiuece. de Camp. cap. 4, § 42, and note ; 
 Story on Bills, § 358. 
 
 * Chitty on Bills, ch. 7, p. 307 (8th edit.) ; Id. ch. 9, pp. 400, 401 ; Bay- 
 ley on Bills, ch. 7, § 1, pp. 218, 219 (5th edit.) ; Collins v. Butler, 2 Str. 
 1087 ; McGruder v. Bank of Washington, 9 Wheat. 598 ; Anderson v. 
 
312 PROMISSORY NOTES. [CHAP. VI. 
 
 moved his domicile, or place of business, to another state or 
 country,^ or if, having removed his domicile and place of 
 business to some other part of the same State, the new domi- 
 cile or place of business cannot, upon diligent inquiry, be 
 ascertained,^ then the holder will be excused for non-present- 
 ment for payment, and will be entitled to the same recourse 
 against the indorsers as if there had been a due presentment. 
 It seems, also, that if the maker of a Promissory Note resides 
 and has his domicile in one State, and actually dates and 
 makes and delivers a Promissory Note in another State, 
 it will be sufficient for the holder to demand payment there- 
 of at the place where it is dated, if the maker cannot person- 
 ally, upon reasonable inquiries, be found within the State, 
 and has no known place of business there.^ 
 
 § 237. If the maker has absconded and cannot be found, 
 or, if, at the time of the maturity of the Note, he has no 
 known residence or place where a presentment can be made, 
 then the holder will, in like manner, be excused from any 
 presentment.* But, if the maker has gone abroad, and has 
 
 Drake, 14 John. 114; 3 Kent, Lect. 44, pp. 96, 97 (5th edit.); Story on 
 Bills, §§ 235, 351, 352 ; Reid v. Morrison, 2 Watts & Serg. 401 ; Carrol v. 
 Upton, 2 Sandf. 172. See Wheeler v. Field, 6 Met. 290. 
 
 '■ McGruder v. Bank of Washington, 9 Wheat. 598, 601, 602; Story on 
 Bills, § 351, and note; Id. § 235 ; Id. §§ 252, 3.05, 308; Anderson v. Drake, 
 14 John. 114; Louis. State Ins. Co. v. Shamburg, 14 Martin, 511 ; Wheeler 
 V. Field, 6 Met. 290 ; Adams v. Leland, 30 N. Y. 309. 
 
 ^ Chitty on Bills, eh. 9, p. 400 (8th edit.) ; 3 Kent, Lect. 44, pp. 96, 97 
 (5th edit.); Bayley on Bills, ch. 7, § 1, p. 218 (5 th edit.); Hepburn v. 
 Toledano, 10 Martin (Louis.), 643 ; Blakeley v. Grant, 6 Mass. 386. 
 
 ' Hepburn v. Toledano, 10 Martin (Louis.), 643 ; Selden v. Washington, 
 17 Md. 379 ; Ricketts v. Pendleton, 14 Md. 320. But see Spies v. Gilmore, 
 1 Comstock, 321 ; Taylor v. Snyder, 3 Denio, 145 ; Packard v. Lyon, 5 
 Duer, 82 ; post, § 264. 
 
 * Story on Bills, §§ 327, 351 ; Chitty on Bills, ch. 7, p. 307 (8th edit.); 
 Id. ch. 8, p. 360; Id. ch. 10, pp. 485, 524 ; Bayley on Bills, ch. 7, § 1, p. 
 218 (5th edit.) ; Anon. Ld. Raym. 743 ; Whittier v. Graffam, 3 Greenl. 
 82 ; Putnam v. Sullivan, 4 Mass. 45 ; Widgery v. Munroe, 6 Mass. 449 ; 
 Hale V. Burr, 12 Mass. 86 ; Duncan v. McCuUough, 4 S. & R. 480; Lehman 
 V. Jones, 1 Watts & Serg. 126; Wolfe u.Jewett, 10 Miller, Louis. 390; 
 
CHAP. VI.] PRESENTMENT FOR PAYMENT. 313 
 
 temporarily left the country, or he is absent upon a journey, 
 that will not be a sufficient excuse for the want of a due pre- 
 sentment of the Note for payment, if he has left his family 
 behind at his house, or it remains open, or if he has left his 
 counting-house or place of business open and accessible, or if 
 he has a linown agent to transact his business at the place of 
 his domicile during his absence ; for, in all such cases, a pre- 
 sentment should be made at his dwelling-house, or place of 
 business, or a demand made upon such agent ; as, in either 
 case, it is obvious that funds may have been provided to 
 meet the exigency. ^ 
 
 § 238. If, at the time and place of presentment for pay- 
 ment within reasonable hours, the holder finds that the dwell- 
 ing-house or place of business of the maker of a Promissory 
 Note is shut up, and the holder cannot, upon reasonable in- 
 quiries, ascertain where he is gone, or where he is to be 
 found, or that he has acquired a new domicile, that will con- 
 stitute a sufficient ground for the non-presentment of the 
 Note.^ But it may not, in many cases, and certainly will not 
 in all, excuse further inquiries on the part of the maker, in 
 order to make due presentment for payment, that the dwell- 
 
 Taylorti. Snyder, 3 Denio, 146 ; Belmont Bank v. Patterson, 17 Ohio, 78 ; 
 McKee v. Boswell, 33 Mo. 567. Where the makers of a Note have run 
 away, notice of the fact must be given to the indorsers. Michaud v. Lao- 
 garde, 4 Min. 43. 
 
 1 Story on Bills, § 351. See Philips v. Astllng, 2 Taunt. 206 ; Chitty on 
 Bills, ch. 7, p. 307 (8th edit.). 
 
 ^ Chitty on Bills, ch. 7, p. 307 (8th edit.) ; Id. ch. 9, pp. 386, 387 ; 
 Bayley on Bills, ch. 7,§ 1, p. 218 (5th edit.) ; Collins v. Butler, 2 Str. 1087 ; 
 Story on Bills, § 352. See also Howe v. Bowes, 16 East, 112 ; S. C, in 
 error, 5 Taunt. 30; Hine v. AUely, 4 B. & Ad. 624; Williams v. Bank of- 
 U. States, 2 Peters, 96 ; Shed v. Brett, 1 Pick. 413 ; Franklin v. Verbois, 
 6 Miller, Louis. 730; Baumgardner v. Reeves, 35 Penn. St. 250. [A 
 ijotary having a Bill for the purpose of demanding payment of an acceptor, 
 who had a short time before been a boarder at a public hotel in Cincinnati, 
 was held to be under no obligation, when informed at the hotel that the 
 acceptor had gone down the river to be absent some days, to present the 
 Bill or make demand of payment of any one there, in order to fix the lia- 
 bility of an indorser. Belmont Bank v. Patterson, 17 Ohio, 78.] 
 
314 PROMISSORY NOTES. [CHAP. VI. 
 
 ing-house or the counting-house of the maker is shut up ; 
 because it may be' ascertained, upon further inquiries, that 
 the maker has removed elsewhere, or is to be found person- 
 ally at lodgings at another place in the town or city, or is 
 absent only for a few moments from his domicile, and about 
 to return immediately. ^ 
 
 § 239. Where a Promissory Note is payable by a partner- 
 ship, it will be sufficient to make a presentment for payment 
 to either of the partners, either personally, or at his domicile, 
 or at the place of business of the firm, or at his own separate 
 place of business, if he has any ; and it is not necessary to 
 make a presentment to all the partners ; ^ for m such a case 
 each partner acts not only for himself, but he represents the 
 partnership. But a different rule may apply in the case of 
 joint makers, who are not partners ; for in such a case a 
 presentment to one cannot be deemed a presentment to both, 
 nor a dishonor by one a dishonor by both ; and in respect to 
 the indorsers, it may be said, that they contract to pay only 
 upon due presentment to all the joint makers, and a dishonor 
 by each.^ 
 
 ' Ibid. ; Collins v. Butler, 2 Str. 1087. See Lanusse v. Massicot, 3 Mar- 
 tin, 261 ; Granite Bank u. Ayers, 16 Pick. 392. 
 
 ' Chittyon Bills, ch. 8, pp. 355,369,370 (Sth edit); Story on Bills, 
 § 362 ; Otsego County Bank v. Warren, 18 Barb. 290; Dabney v. Stidger, 
 4 Sm. & Mar. 749. 
 
 ' After some researches, I have not been able to find a single English au- 
 thority exactly in point on this question. [It was expressly so held, how- 
 ever, in the recent case of Union Bank v. Willis, 8 Met. 504. See Sayre 
 V. Frick, 7 Watts & Serg. 383 ; Willis v. Green, 5 Hill, 232; The State 
 Bank li. Slaughter, 7 Blackf. 133] ; Arnold v. Dresser, 8 Allen, 435. The 
 ■case of Porthouse v. Parker, 1 Camp. 82, seems to have been a case of 
 partners ; and is so treated by Mr. Justice Bayley, and by Mr. Chitty. 
 See Bayley on Bills, ch. 7, § 2, p. 285 (5th edit.) ; Chitty on Bills, ch. 8, 
 p. 370 (8th edit.) ; Id. ch. 8, pp. 530, 531 ; Id. p. 618. The case of Shed 
 V. Brett, 1 Pick. 401, was obviously a case of a demand upon a partnership. 
 See also the case of Shed i\ Brett, 1 Pick. 413, which was between the 
 same parties. The nearest approach by analogy is that of joint indorsers, 
 not partners, to whom, in case of dishonor of the Note at its maturity, no- 
 tice, it should seem, ought to be severally given, if they are not partners. 
 
CHAP. VI.] PRESENTMENT FOR PAYMENT. 315 
 
 § 240. What will be due and reasonable diligence, on the 
 part of the holder, in making inquiries to ascertain the actual 
 residence or place of business of the maker, either originally, 
 or upon a change of his domicile, is a matter susceptible of 
 no definite rule, and must essentially depend upon the cir- 
 cumstances of each particular case ; and will be governed by 
 the same general considerations as those which regulate the 
 place and mode of notice to parties.^ 
 
 § 241. So peremptory is this duty of the holder to demand 
 payment on the very day of the maturity of the Bill, that (as 
 we have already seen^) even the bankruptcy, or insolvency, 
 or death of the maker before or at the time of its falling due, 
 will not excuse or justify the omission.^ The same rule 
 
 See Story on Bills, §§ 299, 362. But, upon this point, also, there is no 
 strict English authority.. In Ohio it has been decided, that, in cases of a 
 joint jand several Note, the promisors are to be deemed quo ad hoc as part- 
 ners, and notice and a demand upon one is a demand on all. Harris v. 
 Clark, 10 Ohio, 5. In Connecticut, on the other hand, it has been -held, 
 that each joint indorser is entitled to a several notice of the dishonor of the 
 Note, at its maturity. Shepard v. Hawley, 1 Conn. 368. Mr. Chancellor 
 Kent, in his Commentaries (3 Kent. Leot. 44, p. 105, note 6, 5th edit.), in- 
 clines to the last opinion ; which strikes me to be the correct one. See also 
 Bank of Chenango v. Root, 4 Cowen, 126. In cases of Notes payable to 
 joint payees, not partners, all must indorse to transfer the Note. Carvick 
 V. Vickery, Doug. 653 ; Jones v. Kadford, 1 Camp. 83, note ; Chitty on 
 Bills, ch. 2, p. 66 (8th edit.). This shows, that one is not competent to act 
 for the other, as to making a transfer. In what respect does this differ from 
 that of acting for the other, in cases of presentment for payment, or of 
 notice of dishonor ? Post, § 255. 
 
 ' See Chitty on Bills, ch. 10, pp. 524, 525 (8th edit.); Story on Bills, 
 § 299, and note; Id. § 352, and note; 3 Kent, Lect. 44, pp. 96, 97 (5th 
 edit.). 
 
 ' Ante, § 203 ; Story on Bills, § 346. 
 
 ' Story on Bills, §§ 279, 306, 326 ; 1 Bell, Comm. B. 3, ch. 2, § 4, p. 413 
 (5th edit.) ; CMtty on Bills, ch. 9, pp. 886-389 (8th edit. 1833) ; Bayley 
 on Bills, ch. 7, § 1, p. 251 (5th edit. 1830); Id. § 2, p. 302; Russel v. 
 Langstaffe, Doug. 515; Armstrong v. Thruston, 11 Md. 157; Esdaile v. 
 Sowerby, 11 East, 114 ; Story on Bills, §§ 230, 279 ; Crossen v. Hutchinson, 
 9 Mass. 205 ; Garland v. The Salem Bank, 9 Mass. 408 ; Jackson v. Rich- 
 ards, 2 Gaines, 343 ; Barton v. Baker, 1 Serg. & Rawle, 334 ; Sandford v. 
 Dillaway, 10 Mass. 52; Farnum v. Fowls, 12 Mass. 89 ; Groton v. Dall- 
 
316 PROMISSORY NOTES. [CHAP. VI. 
 
 equally applies to making a presentment and demand at the 
 proper place, where it should be made ; and the omission to 
 do so will not be excused by the bankruptcy, insolvency, or 
 death of the maker. In the former cases, the demand may 
 and should be made upon the bankrupt or insolvent person- 
 ally, or at his domicile, or place of business, in the same way 
 and manner as if he were not bankrupt or insolvent.^ If his 
 house, or place of business, is shut up, it may not always be 
 sufficient to make a demand there ; and the holder ought to 
 make inquiries where he may be found ; and if, upon rea- 
 sonable inquiries, the fact can be ascertained of the place 
 where he may bo found, presentment should be made there.^ 
 In case of the death of the maker, the holder should make 
 presentment for payment to the executor or administrator of 
 the deceased, if one has been appointed, and he, or his resi- 
 dence, can be ascertained upon reasonable inquiries ; ^ and 
 if there be no executor or administrator, or he or his place of 
 residence cannot be found, then presentment for payment 
 should be made at the house, or other domicile, of the 
 deceased.* If the Note be by a firm, and one partner dies 
 
 heim, 6 Greenl. 476 ; Shaw v. Reed, 12 Pick. 132 ; Lawrence ». Langley, 
 14 N. H. 70 ; Kobson v. Oliver, 10 A. & El. (N. S.) 704 ; Holland v. 
 Turner, 10 Conn. 308 ; Orear v. McDonald, 9 Gill, 350 ; Gower v. Moore, 
 25 Maine, 16; Toby v. Maurian, 7 Louis. 493; Hunt u. Wadleigh, 26 
 Maine, 271. 
 
 1 Chitty on Bills, eh. 9, pp. 386 - 388 (8th edit. 1 833) ; Collins v. But- 
 ler, 2 Str. 1087; Howe v. Bowes, 16 East, 112, 1 M. & S. 555; Groton v. 
 Dallheim, 6 Greenl. 476 ; Shaw v. Reed, 12 Pick. 132. 
 
 » Chitty on Bills, ch. 9, pp. 386, 387 (8th edit. 1833); MoUoy, B. 2, 
 ch. 10, § 34 ; Story on Bills, § 246; Bowes v. Howe, 5 Taunt. 30. 
 
 ' Gower v. Moore, 25 Maine, 16 ; Landry v. Stansbury, 10 Louis. 484. 
 And where the maker was dead and an indorser was one of his executors, 
 demand and notice were held necessary to charge the indorser. Groth v. 
 Gyger, 31 Penn. St. 271. 
 
 » Chitty on Bills, ch. 9, pp. 389, 401 (8th edit. 1833) ; Bayley on Bills, 
 ch. 7, § 1, pp. 218, 219 (5th edit. 1830) ; Id. § 2, p. 286 ; MoUoy, B. 2, 
 ch. 10, § 34 ; Magruder v. Union Bank of Georgetown, 3 Peters, 87 ; Juni- 
 ata B'ank v. Hale, 16 Serg. & Rawle, 157 ; Story on Bills, § 235 ; 1 Bell, 
 Comm. B. 3, ch. 2, § 4, p. 413 (5th edit.). 
 
CHAP. VI.] FEESENTMENT FOR PAYMENT. 317 
 
 before the maturity of the Bill, the presentment should be. 
 made to the survivors, and not to the personal representative 
 of the deceased.! [If the partnership be dissolved, a demand 
 on one partner is sufficient, if the holder had no notice of the 
 dissolution.^] We shall hereafter have occasion to notice 
 other considerations applicable to this part of the subject.^ 
 
 ' . Cayuga County Bank v. Hunt, 2 Hill, 635. 
 
 ' Crowley v. Barry, 4 Gill, 194. 
 
 ' Story on Bills, § 346. This doctrine is strongly illustrated by the cases 
 applicable to bankers' Notes, where the failure or bankruptcy of the bank- 
 ers will constitute no ground for non-presentment for payment. On this 
 subject, Mr. Chitty says : " In general, in the case of country bankers' 
 Notes, payable on demand, although the bank has stopped payment and 
 been shut up, and has declared that they will not pay any Notes, yet a due 
 and regular presentment of such Notes, with respect to time, must be 
 formally made at the banker's or to one or more of the makers, unless dis- 
 pensed with by the parties to be resorted to by the holder, and due and 
 immediate notice of the dishonor must be given to all the parties who are 
 known to have transferred the same, or they will be discharged from all 
 liability, as well to pay the Note as the debt, in respect of which it 
 was transferred. Hence, it is expedient for any holder of a Note pay- 
 able on demand to present it for payment as soon as possible, and im- 
 mediately on being apprised of the insolvency of the banker, or other 
 party who ought primarily to pay the same, formally to tender the same 
 and demand payment at the banking-house, and also of the partners of the 
 firm, if practicable ; and, as soon as possible afterwards, to give notice of 
 the non-payment to all the parties on whom he can possibly have any 
 claim. Nor is there any distinction in this respect, whether the Note pay- 
 able on demand has been circulated by a party after the maker has stopped 
 payment or was insolvent, unless the former knew the fact at the time. If 
 he did not, then he may insist on a due presentment of the Note, or at least 
 on having due notice of the dishonor within the time usually applicable to 
 such Notes. Therefore, where it appeared that a Note of a country bank 
 was given in payment while the bank continued open, but before the time 
 allowed by the Law Merchant for presentment had expired, the bank 
 failed ; yet it was held, that the holder was bound to present the Note for 
 payment in due time, and that he, by neglecting to do so, made it his own. 
 So, where, on the 10th of December, at three o'clock in the afternoon, the 
 defendant at York, forty miles from Huddersfield, delivered to the plaintiff 
 four five-pound Notes, payable, to bearer on demand, of the bank of Dob- 
 son & Co. at Huddersfield, in payment for goods sold, and at eleven o'clock 
 on that day those bankers had stopped payment, but neither the plaintiffs 
 
318 PROMISSOBY NOTES. [CHAP. VI. 
 
 . § 242. In the third place, as to the mode of presentment 
 and the demand of payment. If it be personal, or verbal, it 
 should be absolute, and for present actual payment, and not 
 with any offer or agreement for any further credit.^ If it be 
 in writing, as may in some cases be proper, where a personal 
 or verbal notice is impracticable, or, under the circumstances, 
 not indispensable, the writing should expressly or by implica- 
 tion be equally absolute and direct. Nor should any pay- 
 ment be accepted which is not an immediate payment in 
 money ; and payment by a check or other draft upon a bank 
 or on bankers should be declined.^ 
 
 § 243. The mode of presentment of a Promissory negotia- 
 ble Note for payment may be further illustrated by consid- 
 ering the acts required of the holder, when he is in possession 
 of the Note, and when the Note has been lost or mislaid. If 
 the Note is payable generally, without any specification of 
 place, the holder must have the Note in possession, ready to 
 
 nor the defendant knew of it; and the plaintiff did not circulate or trans- 
 fer the Notes, nor present them for payment, and on the 17th of Decem- 
 ber required the defendant to take them back, and he refusing, the plaintiff 
 sued him for the price of the goods, the Court held, that the defendant was 
 discharged from liability, and that the plaintiff should either have nego- 
 tiated the Notes, or forwarded them for payment on the day after he 
 received them, and have given due notice of non-payment." 
 
 1 Chitty on Bills, ch. 9, pp. 401, 402 (8th edit. 1833) ; Bayley on Bills, 
 ch. 9, pp. 337, 388 (5th edit. 1830) ; Gillard v. Wise, 5 B. & C. 134 ; Lock- 
 wood V. Crawford, 18 Conn. 361. 
 
 ' Chitty on Bills, ch. 9, pp. 401, 402 (8th edit. 1833). Mr. Chitty says: 
 " The Bill or Note should not be left in the hands of the drawee, or maker, 
 without immediate actual payment in money ; at least, if it be, the present- 
 ment is not considered as made until the money is called for ; and, although 
 it has been decided, that neither a holder, nor a banker, acting as agent, is 
 guilty of neglect, by giving up a Bill to the acceptor, upon his delivering to 
 them his check on another banker, that doctrine may now be questionable ; 
 and most of the London bankers, on presenting a Bill for payment in the 
 morning, leave a ticket, where it lies due, and declaring, that, ' in conse- 
 quence of great injury having arisen from the non-payment of drafts taken 
 for Bills, no drafts can in future be received for Bills, but that the parties 
 may address them for payment to their bankers, or attach a draft to the Bill 
 when presented.' " Story on Bills, §§ 348, 364. 
 
CHAP. VI.] PRESENTMENT FOR PAYMENT. , 319 
 
 be delivered up to the maker, when the presentment for pay- 
 ment is made ; for, ordinarily, a presentment by a person 
 not in possession of the Note will not be deemed a just or 
 regular presentment, or binding the maker to immediate pay- 
 ment.i If the Note is payable at a bank, or banker's, or at 
 any other specified place, the holder, whether the bank, or 
 banker, or other person has lodged it there, or has pos- 
 session of it there at the time of its maturity, it will be the 
 duty of the maker to make payment thereof, at that very 
 place, and no special demand need be made upon the maker. 
 If held by a bank, or banker, upon a discount thereof, or for 
 the purpose of collection for the owner, it will be sufficient 
 to establish a due presentment and dishonor of the Note 
 against all the parties thereto, that no funds are there lodged 
 or possessed by the maker, within the usual hours of busi- 
 ness, for the payment thereof.^ But, in order to make such 
 the legal result, the Note must be actually, on the day of its 
 maturity, at the bank, or the banker's, ready to be delivered 
 up on payment thereof; for, in general, it is necessary for a 
 person, demanding payment of a negotiable Note, to have it 
 with him when he makes the demand ; ^ and, although the 
 
 ' Ante, §§ 106-110 ; Musson v. Lake, 4 How. 262 ; Farmers' Bank v. 
 Diivall, 7 Gill & Johns. 798 ; Hansard v. Robinson, 7 B. & C. 90 ; Free- 
 man V. Boynton, 7 Mass. 483, 486; Whitwell v. Johnson, 17 Mass. 449, 
 452; Gilbert v. Dennis, 3 Met. 495-497. But see Fales v. Kussell, 
 16 Pick. 315, 316 ; Baker v. Wheaton, 5 Mass. 509, 512; Jones v. Fales, 
 5 Mass. 101. 
 
 = Chittyon Bills, ch. 9, pp. 399, 400 (8th edit.) : Bayleyon Bills, ch. 7, 
 § 1, p. 219 (5th edit.); Gilbert v. Dennis, 3 Met. 495-497; Berkshire 
 Bank v. Jones, 6 Mass. 524 ; Folger v. Chase, 18 Pick. 63 ; North Bank v. 
 Abbot, 13 Pick. 465 ; FuUerton v. Bank of U. States, 1 Peters, 604 ; Bank 
 of U. States v. Carneal, 2 Peters, 543; Ogden t7. Dobbin, 2 Hall, 112; 
 Nichols u. Goldsmith, 7 Wend. 160; Merchants' Bank v. Elderkin, 25 N. 
 Y. 178 ; Hallowell v. Curry, 41 Penn. St. 322 ; Sherer v. Easton Bank, 33 
 Penn St. 134 ; Allen v. Avery, 47 Maine, 287 ; Shepherd v. Chamberlin, 8 
 Gray, 225. 
 
 ^ Freeman v. Boynton, 7 Mass. 483, 486 ; Woodbridge v. Brigham, 13 
 Mass. 556; Whitwell v. Johnson, 17 Mass. 449,452; Gilbert ti. Dennis, 3 
 Met. 495 ; Shed v. Brett, 1 Pick. 401 ; Shaw v. Reed, 12 Pick, 132; ante, 
 §§ 106 -110 ; Haddock v. Murray, 1 N. H. 140. 
 
S20 PEOMISSOEY NOTES. [CHAP. VI. 
 
 presumption is, that a Note payable at a bank will, if it is 
 the property of the bank, be found there at its maturity, that 
 presumption may be rebutted by countervailing proof.^ 
 
 § 244. In respect to cases where a negotiable Promissory 
 Note has been lost, mislaid, or destroyed, we have already 
 seen that in England no remedy ordinarily exists for the 
 holder at law, but his remedy is in equity ; ^ and that in 
 America, there is a conflict in the authorities, some being in 
 the affirmative, some in the negativS, and some adopting an 
 intermediate doctrine.^ But, whichever of these conflicting 
 doctrines be the true one, it seems clear that the loss, mis- 
 laying, or destruction of the Note will not dispense with a 
 regular presentment for payment on the part of the holder ; 
 and, if it be not made, the indorsers will be discharged from 
 their responsibility.* The reason is, that it is by no means 
 to be taken for granted, that the mislaying, loss, or destruc- 
 tion of the Note wouM have been insisted on, even in states 
 and countries where by the Lex loci it is a good objection ; 
 for the maker might still be willing to pay upon an indemnity 
 being offered and given to him,, or even without an indemni- 
 ty, where he had a firm personal confidence in the integrity 
 and high commercial solvency of the holder.^ The case is 
 far stronger than that, of the bankruptcy or insolvency of tlie 
 maker, at the maturity of the Note, which (we have seen®) 
 constitutes no excuse, either in law or in equity, for non-pre- 
 sentment of the Note for payment. 
 
 ' Folger V. Chase, 18 Pick. 63 ; Berkshire Bank v. Jones, 6 Mass. 524, 
 525. 
 
 2 Ante,% 106 - 112 ;;)os«, §§445-450. 
 
 ' Ante, §§ 107-111 ; Posey v. Decatur Bank, 12 Ala. 802; Thayer k. 
 King, 15 Ohio, 242. 
 
 * Chitty on Bills, ch. 6, pp. 280, 286, 288, 289 (8th edit.) ; Id. 291, 297; 
 Thackray v. Blackett, 8 Camp. 164 ; Marius on Bills, p. 19 (edit. 1794);; 
 Bayley on Bills, ch. 7, p. 302 (5th edit.) ; Id. ch. 9, p. 336 ; Id. pp. 369, 
 371 - 373 ; Story on Bills, § 348 ; Beawes, Lex Merc, by Chitty, Vol. 1, p. 
 589, pi. 182, 185. 
 
 « Ibid. ; Smith v. Rockwell, 2 Hill, 482. 
 
 « Ante, §§ 203, 241. 
 
CHAP. VI.] PBESENTMENT FOR PAYMENT. 321 
 
 § 245. The law of France is the same. That law requires 
 a protest to he made upon the dishonor of a Promissory Note 
 by the maker, as well as upon the dishonor of a Bill of Ex- 
 change by tlie acceptor ; and it has been said, that inasmuch 
 as every protest must include in it a copy or transcript of the 
 Note or Bill, it is impossible to include one when the Note or 
 Bill is lost or destroyed ; and that the rule of Law is, " Lex 
 neminem cogit ad vana seu inutilia, sui impossibilia peragen- 
 da " ; ^ or, as the Roman law more succinctly expresses it, 
 " Impossibilium nulla obligatio est." ^ But Pothier has with 
 great truth and acuteness remarked, that this may be a very 
 good reason why a copy or transcript should not be put in 
 the protest, and the formality be dispensed with ; but that it 
 furnishes no ground why a demand of payment and protest 
 for non-payment should not be made, since neither of them 
 is impossible in such a case.^ 
 
 § 246. In the fourth place, as to the person by whom a 
 Promissory Note is, upon its maturity, to be presented for 
 payment. And here the general answer to be given to the 
 inquiry, who is the proper person to make the presentment, 
 is, that, if the holder is living, it should be made by him 
 personally, or by his authorized agent.* Who is an author- 
 ized agent, competent to make the presentment, may, in some 
 cases, admit of some nicety of doctrine under peculiar cir- 
 cumstances. It is clear, that it is not necessary that the au- 
 thority to an agent for this purpose should be in writing ; and 
 a parol authority will be sufficient.^ If the Note belong to a 
 
 ' Branch's Maxims, p. 98 ; 5 Co. 21 ; Wingate's Maxims, 600. 
 
 = Dig. Lib. 50, tit. 17, 1. 185. 
 
 ' Pothier, De Change, n. 145 ; ante, ^ 110; Code de Comm. art. 150- 
 152 ; Nouguier, Des Lettres de Change, Tom. 1, eh. 8, § 4, pp. 335-341 ; 
 et Appendica, p. 342 ; Story on Bills, § 279, and note. 
 
 * Chitty on Bills, eh. 9, pp. 398, 428, 429 (8th edit.) ; Cooke v. Callaway, 
 1 Esp. 115. 
 
 ' Shedw. Brett, 1 Pick. 401 ; Freeman v. Boynton, 7 Mass. 483 ; Hart- 
 ford Bank v. Barry, 17 Mass. 94; Seaver v. Lincoln, 21 Pick. 267. Pay- 
 ment may be demanded and notice given by any person authorized by the 
 21 
 
822 PROMISSORY NOTES. [CHAP. VI. 
 
 partnership, as holders, either of the partners or their agent 
 may demand payment. In general, it may also be stated, 
 that if the Note is indorsed in blank, and is in possession of a 
 party, he will be deemed prima facie entitled to demand pay- 
 ment thereof, whether he be the actual owner thereof, or be 
 only an agent for the owner, or for any other party interest- 
 ed therein and entitled to the benefit thereof.^ If a Note 
 has been indorsed by the payee to a third person, and yet is 
 fonnd in his possession, that will be sufficient evidence, prima 
 facie, that he has become lawfully possessed thereof, and en- 
 titled to demand payment thereof, as owner or agent.^ If a 
 Note belong to a bank, the cashier thereof is deemed virtute 
 officii to make demand of payment, and to authorize the de- 
 mand by a sub-agent.^ And in all cases, where a Note is in 
 possession of the agent of the owner, whether by a blank in- 
 dorsement, or otherwise, it is competent for the owner him- 
 self at all times to demand payment thereof personally and 
 in his own name.* 
 
 § 247. The cases which we have hitherto been considering 
 are those where the Promissory Note is negotiable, and in- 
 dorsed in blank,. or found in the possession of a holder, who 
 is clearly seen, upon the instrument, to be the apparent 
 
 holder with the same effect as if done by a notary, and the possession of the 
 Note is prima facie evidence of authority. Cole v. Jessup, ION. Y. 96. 
 
 ' Ante, § 243 ; Chitty on Bills, ch. 9, pp. 398, 428, 429 (8th edit.) ; Story 
 on Bills, § 360, 415, 416 ; Owen v. Barrow, 4 Bos. & Pull. 103 ; Clerk v. 
 Pigot, 12 Mod. 193 ; Little v. Obrien, 9 Mass. 423 ; Sterling v. Marietta and 
 Susq. Trading Co., 11 Serg. & Rawle, 179 ; Mauran u. Lamb, 7 Cowen,174; 
 Gorgerat v. McCarty, 2 Dall. 146 ; 1 Yeates, 98; Bachellor v. Priest, 12 
 Pick. 399 ; Sherwood v. Roys, 14 Pick. 172 ; Banks v. Eastin, 15 Martin, 
 291 ; Shaw v. Thompson, 15 Martin, 392 ; Adams v. Oakes, 6 C. &. P. 70. 
 See Thatcher v. Winslow, 5 Mason, 58. 
 
 ' Bachellor v. Priest, 12 Pick. 399 ; Dugan v. The United States, 3 Wheat. 
 172 ; Jones v. Fort, 9 B. & C. 764 ; Bank of U. States v. United States, 2 
 How. (U. S.) 711 ; Hunter v. Kibbe, 5 McLean, 279. 
 
 ' Hartford Bank v. Barry, 17 Mass. 94. See Church v. Barlow, 9 Pick. 
 547 ; Fleckner v. Bank of the United States, 8 Wheat. 338. 
 
 * Pothier, De Change, n. 164 ; Mottram v. Mills, 1 Sandf. 37 ; Dollfus 
 V. Frosch, 1 Denio, 367 ; post, § 452 ; Story on Bills, § 209. 
 
CHAP. VI.] PRESENTMENT FOR PAYMENT. S23 
 
 owner thereof, or entitled to deal with it as owner, or as agent 
 of the owner. But a different rule may apply, and, indeed, 
 would seem properly to apply to cases where a Note is not 
 originally made negotiable, or if originally negotiable, has 
 been indorsed to a particular person only, and where, of 
 course, in either case, the holder in possession is not the 
 • payee, or the special indorsee thereof.^ Under such circum- 
 stances, the mere production of the Note by the holder is not 
 ordinarily deemed a sufficient title or authority to demand 
 payment, because his possession is no proof of his title or a\i- 
 thority to hold the same ; and, if it is refused on that account, 
 it may be doubtful if any recourse can be had against the in- 
 dorsers on account of the dishonor, at least unless a positive 
 authority or title is clearly made out by positive and unex- 
 ceptionable evidence.^ 
 
 § 248. -The French law recognizes the same principle. 
 Pothier, in speaking upon the subject, says, that payment, and 
 of course presentment for payment, can be properly made 
 only to the party who, at the time of the maturity of the 
 Note, is the lawful proprietor thereof, or to his aixthorized 
 agent.^ If the Note is not negotiable, but has been assigned 
 to another person, by an indorsement thereon, then the as- 
 signee may lawfully require payment.* But, if the assign- 
 ment in such a case be on a separate paper, notice thereof to 
 the maker is indispensable to charge him with payment to the 
 assignee ; and if, before such notice, he should pay the 
 same to the payee, or to any person to whom the payee had 
 indorsed the Note, on its production, the payment would be 
 good.^ 
 
 ' But see Chitty on Bills, ch. 9, p. 389 ; Marks on Bills, pp. 33, 34 (edit. 
 1794). 
 
 ' See Freeman v. Boynton, 7 Mass. 483 ; Bank of Utica v. Smith, 18 
 John. 230; Shed v. Brett, 1 Pick. 401, 404; Chitty on Bills, ch. 9, p. 398 
 (8th edit.) ; Id. 428, 429 ; Marius on Bills, pp. 33, 34 (edit. 1794) ; Pothier, 
 De Change, n. 165, 168, 169 ; Scaccia, Tract, de Comm. § 9,.Glos. 5, u. 340, 
 p. 571. 
 
 ' Pothier, De Change, n. 164. 
 
 » Ibid. 164, 165, 168, 169. = Ibid. 165. 
 
824 PEOMISSOEY NOTES. [CHAP. VI. 
 
 § 249. It follows, of course, from what has been already 
 said,^ that the holder, at the maturity of the Note, must be a 
 competent person to make the presentment and demand payr- 
 ment, or the agent of a competent person ; for, if he be not, 
 the payment will not be good when made to him ; and the 
 money may be recovered back from the maker by the proper 
 person entitled thereto. Independent of the cases of persons 
 who are disabled by being under guardianship, or coverture, 
 from demanding payment to be made to them, as sui juris, 
 there are others which may require our consideration, as, for 
 example, cases where the holder has become bankrupt, or is 
 dead before or at the maturity of the Note. In the case of 
 the bankruptcy of the holder, if assignees have been apr 
 pointed, the presentment should be made by them, or by 
 some person authorized by them.^ Even if the bankrupt 
 were but a mere agent, ^ demand of payment by the as- 
 signees would be good and sufficient, and inure for the bene- 
 fit of the owner ; ^ although, under the circumstances, a de- 
 mand by the bankrupt himself might not be equally good, as 
 being made by an agent whose authority is revoked by opera- 
 tion of law, or upon the presumed intention of the princi- 
 pal.* If no assignees have been appointed, and the act of 
 bankruptcy is unknown to the maker, a presentment -by the 
 bankrupt may be (it should seem) good, and the maker may 
 safely pay the Note to the bankrupt. But, if the act of 
 bankruptcy be known, the presentment to, or payment by 
 the bankrupt, would not be good, unless ratified by the as- 
 signees.^ 
 
 ' Ante, § 246. 
 
 " Chitty on.Bills, ch. 9, p. 398 (8th edit.). 
 
 * Jones V. Fort, 9 B. & C. 764. 
 
 ' Story on Agency, § 486 ; Hudson v. Granger, 5 B. & Al. 27, 31, 32; 
 Pothier, De Mandat. n. 120. 
 
 " See Chitty on Bills, ch. 9, pp. 428-430 (8th edit.) ; Bayley on Bills, 
 ch. 7, § 2, p. 28A (5th edit.) ; Ex parte Moline, 19 Ves. 216 ; Jones v. Fort, 
 9 B. & C. 764. I have not seen any case directly in point ; but it would 
 seem a just result, from analogous provisions in bankruptcy, and the de- 
 
CHAP. VI.] PRESENTMENT FOB PAYMENT. 325 
 
 § 2-50. In the case of the death of the holder, the legal 
 right to demand payment qf the Note rests in his executor or 
 administrator.^ If there be no administrator or executor 
 duly appointed, and capable of acting at the time of the ma- 
 turity of the Note, that would seem to furnish a sufficient 
 excuse for the non-presentment of the Note for payment un- 
 til an executor is appointed and duly qualified to act.^ But 
 ■ of this more will be said hereafter. If the holder is a wom- 
 an, and she marries before or at the maturity of the Bill, 
 the presentpient should be made by her husband, and a pre- 
 sentment by her, after the marriage, without his consent or 
 authority, will not be sufficient to discharge the maker, or 
 justify a payment by him.^ If the Note belong to a partner- 
 ship, as holders, the presentment should be by the surviving 
 partner, upon the death of the other. 
 
 §' 251 . In the fifth place, as to the person to whom pre- 
 sentment of the Note for payment is to be made. In general, 
 it should be made to the maker, either personally, or at his 
 dwelling-house or place of business, unless the Note be paya- 
 ble at a particular place, as, for example, at a bank or bank- 
 ing-house, in which case it should be there presented for 
 payment.* A presentment may also be made to the duly au- 
 thorized agent of the maker, if he has one, and then the pre- 
 sentment will ordinarily be of the same avail as it would be 
 if made to the maker himself.^ 
 
 § 252. In case of the bankruptcy or insolvency of the 
 maker, a presentment should still be made to the bankrupt 
 or insolvent for payment, aijd it will be no excuse to the 
 
 cisions thereon. In Ex parte Moline, 19 Ves. 216, Lord Eldon, upon the 
 question of the sufficiency of the notice of the dishonor of a Bill, given to 
 the bankrupt before the appointment of assignees, said : " The bankrupt 
 represents his estate until assignees are chosen." 
 
 » Chitty on Bills, ch. 6, pp. 225, 226 (8th edit.). 
 
 ' Ibid. ch. 9, p. 360 (8th edit.) ; Id. ch. 10, pp. 485, 486, 524. 
 
 » Story on Bills, § 90 - 93, 360 ; Chitty on Bills, ch. 2, p. 26 (8th edit.). 
 
 • Ante, § 226-232; Chitty on Bills, ch. 9, pp. 399-401 (8th edit.). 
 
 ' Story on Bills, § 229, 362; Chitty on Bills, ch. 7, pp. 301, 307 (8th 
 edit.); Id. ch. 9, pp. 389, 398-401. See Philips v. Astling, 2 Taunt. 206 
 
326 PROMISSORY NOTES. [CHAP. VI. 
 
 holder, that he has omitted in such a case to perform the 
 duty.^ The same rule prevails in the French law, and has 
 been expressly recognized by Savary and Pothier,^ 
 
 § 253. In the case of the death of the maker, at the time 
 of the maturity of the Note, presentment for payment should 
 be to his executor or administrator, if any one be appointed 
 and qualified to act, and the place of residence of the execu- 
 tor or administrator can, upon reasonable inquiries, be ascer- 
 tained.^ If there be no executor or administrator appointed 
 and qualified to act, then a presentment should be made, and 
 payment demanded, at the dwelling-house of the deceased ; * 
 unless, indeed, the Note were originally made payable at 
 some particular place, for then it will be sufficient that pre- 
 sentment is made at that place.^ In either case, the omis- 
 sion will generally be fatal to the claims of the holder against 
 the indorser.^ The American authorities are not, indeed, 
 uniform upon this point ; but the law of England, which is 
 asserted in the text, is that which generally prevails in a 
 great majority of the American States.'' 
 
 ' Ante, § 203, 204; Bayley on Bills, ch. 7, § 1, pp. 251, 252 (5tli edit.); 
 Chitty on Bills, ch. 8, p. 386 (8th edit.) ; Esdaile v. Sowerby, 11 East, 114; 
 Story on Bills, §§ 326, 346 ; Boultbee v. Stubbs, 18 Ves. 21. 
 
 ' Story on Bills, § 347; ante, § 203; Pothier, De Change, n. 147; Sa- 
 vary, Le Parfait N^gociant, Tom. 2, Parere 45, p. 860. 
 
 ' Chitty on Bills, ch. 8, p. 389 (8th edit.) ; Gower v. Moore, 25 Maine, 
 16; Landry v. Stansbury, 10 Louis. 484; ante, § 241. 
 
 * Chitty on Bills, ch. 7, p. 307 (8th edit.) ; Id. ch. 8, p. 360; Id. ch. 9, 
 p. 401 ; ante, § 241 ; Toby v. Maurian, 7 Louis. 493. 
 
 = Ante, §§ 226-232; Chitty on Bills, ch. 9, p. 401 (8th edit.) ; Story on 
 Bills, § 362 ; Philpott v. Bryant, 1 M,& P. 754; 3 C. & P. 244'; 4 Bing. 
 717 ; Price v. Young, 1 Nott & McCord, 483 ; Story on Bills, §§ 305, 326, 
 362; MoUoy, B..2, ch. 10, § 34 ; Thomson on Bills, ch. 6, § 4, p. 501 (2d 
 edit.). 
 
 • Ibid. 
 
 ' In Massachusetts, in the case of Hale v. Burr, 12 Mass. 86, the Court 
 held, that if, at the maturity of a Note, the maker was dead, no demand 
 need be made upon the executor or administrator of the deceased for pay- 
 ment, if the maturity of the Note was after the appointment and qualifying 
 of the executor or administrator, but before the expiration of the year 
 from the appointment ; because, if made within the year, the executor or 
 
CHAP. VI.] PRESENTMENT FOE PAYMENT. 327 
 
 § 254. The French law is precisely coincident with the 
 law of England upon the necessity of a due presentment, 
 and demand of payment, in case of the death of the maker ; 
 for, in such a case, the protest for non-payment (which is 
 equally required by the French law in cases of Notes and of 
 Bills) must still be made, and the answer of the widow and 
 heirs of the deceased, declining payment, be inserted in the 
 protest, and then it will be equivalent to a refusal by the 
 maker, and bind the indorsers.^ If the deceased has not 
 left at his domicile any widow or heirs, still the holder must 
 make the protest, and state in it that he has made a present- 
 ment at the domicile.^ 
 
 § 255. In the case of a partnership Note (as we have 
 already seen^), it will be sufficient to make a presentment and 
 demand upon either of the partners, either personally, or at 
 the place of business of the firm, or at the dwelling-house of 
 either partner; for each represents the firm. It is, or at 
 least it may be otherwise, (as has been already suggested,*) 
 in cases of joint makers, who are not partners ; for then a 
 presentment and demand may be required to be made of 
 each separately, since a dishonor by one is not in such case 
 
 administrator was not by the laws of Massachusetts bound to pay the Note. 
 And see Oriental Bank v. Blake, 22 Pick. 206 ; Burrill v. Smith, 7 Pick. 
 291. But quaere, if this be a satisfactory reason. In the first place, the 
 executor or administrator might, if he had ample assets, pay the Note to 
 avoid the running of interest ; and, in the next place, the contract of the 
 indorser is conditional, that he will pay the Note, if duly presented and not 
 paid at its maturity. The fact that it may not, or will not be paid by the 
 maker at its maturity, does not in other cases dispense with the obligation 
 implied by law on the part of the holder to make due presentment. Why 
 should it in the ease of the death of the party ? The French law, as we 
 shall immediately see, is against the Massachusetts decision. Pothier, De 
 Change, n. 146 ; ante, § 241 ; post, § 254. 
 
 ' Pothier, De Change, n. 146. 
 
 " Pothier, De Change, n. 144. 
 
 ' Ante, § 239, and note ; Bayley on Bills, ch. 7, §§ 285, 286 (5th edit.) ; 
 Story on Bills, §§ 305, 326, 362. 
 
 * Ante, § 239 ; Per Nelson, C. J., in Willis v. Green, 5 Hill, 232 ; Shep- 
 ard V. Hawley, 1 Conn. 367 ; Union Bank v. Willis, 8 Met. 504. 
 
328 PROMISSORY NOTES. [OHAP. VI. 
 
 necessarily a dishonor by both, and neither is presumed to 
 have authority to act for the other. If it be said that the 
 makers may reside, at a distance from each other, and there- 
 fore it may be impracticable to make a demand on each on 
 the day of the maturity of the Note ; it may be answered, 
 that if impossible to make a demand on the same day on 
 each, that may excuse punctuality as to the time of the der 
 mand ; and the indorser, by indorsing a joint Note, submits 
 to meet and abide by that difficulty, if a presentment is made 
 as soon as it reasonably can be ; as he does in many other 
 cases, where a due presentment is impossible.^ But as the 
 indorser, by his indorsement of a joint Note, has a right 
 to rely upon the joint responsibility of both, and therefore 
 may reasonably be supposed to insist upon a dishonor by 
 both, before he is called upon for payment, there would 
 see^ to be strong ground to insist, that a joint dishonor 
 should be established before the indorser should be liable.^ 
 
 ' Story on Bills, §§ 223, 234, 308, 326, 365 ; Chitty on Bills, ch. 9, pp. 
 389, 422, 423 (5tli edit.) ; Id. ch. 10, pp. 485.-488, 522 ; Freeman v. Boyn- 
 ton, 7 Mass. 483. 
 
 '' jlreie, §239. The case of Harris v. Clark; 10 Ohio, 5, was a case where , 
 the Note was joint and several, and, of course, where the holder was at 
 liberty to treat as the several Note of each maker, and so a demand upon 
 one of the makers, and dishonor, would properly bind the indorsers. But 
 the reasoning of the Court went beyond the case, and treated all joint 
 promisors as partners pro hae vice. This is certainly not true in relation to 
 joint payees, for neither can indorse for the other, as one partner may for 
 all. The pase of Shepard v. Hawley, 1 Conn. 367, shows that a notice of 
 dishonor to one of two joint indorsers of a Note does not bind the other. 
 See also 3 Kent, Lect. 44, p. 105, note J; Bank of Chenango v. Root, 4 
 Cowen, 126. In Willis v. Green, 5 Hill, 232, 234, Mr. Chief Justice Nel- 
 son said : " I do not see but the case of joint indorsers, not partners, stands 
 on the same footing as that of joint makers of a Note who are not partners ; 
 and in respect to them it is settled,' that presentment must be made to each, 
 in order to charge the indorser. The argument is about as strong, both 
 upon reason and analogy, in favor of giving effect to a demand upon one of 
 the co-makers, as it is in favor of giving effect to a notice to one of the co- 
 indorsers. The question has been vei-y fully and satisfactorily examined 
 by the Supreme Court of Errors in Connecticut, and a decision made in 
 comformity, with these views. Shepard v. Hawley, 1 Conn. 367." [So, 
 also, in Pennsylvania, Sayre v. Frick, 7 Watts & Serg. 383.] 
 
CHAP. VI.] PRESENTMENT FOB PAYMENT. 329 
 
 § 256. In the case of the death of one partner of a firm, 
 before a Promissory Note of the firm has arrived at maturity, 
 presentment and demand of payment should be made of the 
 surviving partners of the firm, and not of the executor or ad- 
 ministrator of the deceased ; for the surviving partners alone 
 are in such cases liable at law for the payment of the Note ; 
 and, of course, as the duty devolves on them the holder 
 should apply to them therefor.^ The same rule will apply to 
 joint makers, where one of them dies before the maturity of 
 the Note ; and the presentment should, under such circum- 
 stances, be made to the surviving maker or makers thereof; 
 for then the debt is at law the debt of the survivors only. It 
 may be different in this last case, where the Note is the sev- 
 eral as well as the joint Note of the makers ; for then the 
 holder is at liberty to elect upon whom he will make the de- 
 mand and presentment. 
 
 • Cayuga Connty Bank v. Hunt, 2 Hill, 635; Story on Part. §§ 361, 
 362 J Story on Bills, 362. 
 
330 PEOMISSOBY NOTES. [CHAP. VII. 
 
 CHAPTER VII. 
 
 EXCUSES FOR NON-PRESENTMENT OP PROMISSORY NOTES. 
 
 § 257. In the sixth place, as to what will constitute a suffi- 
 cient excuse for non-presentment and demand at the time 
 and place when and where the Promissory Note is due and 
 payable. We have already had occasion to allude to this 
 subject in another connection ; ^ but it requires to be more 
 fully and exactly stated in this place. The excuses may be 
 general and applicable to all persons, who are indorsers ; or, 
 they may be special and applicable to a particular indorser 
 only. Among the general excuses, the following are com- 
 monly stated as causes which will excuse the want of due 
 presentment : (1.) Inevitable accident, or overwhelming ca- 
 lamity ; (2.) The prevalence of a malignant disease, which 
 suspends the ordinary operations of business ; (8.) The 
 presence of political circumstances, amounting to a virtual 
 interruption and obstruction of the ordinary negotiations of 
 trade, called the vis major ; (4.) The breaking out of war 
 between the country of the maker and that of the hold- 
 er ; (5.) The occupation of the country, where the parties 
 live, or where the Note is payable, by a public enemy, which 
 suspends commercial intercourse ; (6.) Public and positive 
 interdictions and prohibitions of the State, which obstruct or 
 suspend commerce and intercourse ; (7.) The utter imprac- 
 ticability of finding the maker, or ascertaining his place of 
 residence. Among the special excuses may be enumerated 
 the following : (1.) The receiving the Note by the holder 
 from the payee, or other antecedent party, too late to make 
 
 1 Ante, §§ 205, 206. 
 
CHAP. VII.] EXCUSES FOB NON-PRESENTMENT. 331 
 
 due presentment ; (2.) The Note being an accommodation 
 Note of the maker, for the benefit of a particular indorser ; 
 (3.) Special agreements between the holder and an antece- 
 dent indorser, waiving the presentment and demand ; (4.) 
 TJie receiving of security by an indorser to indemnify him- 
 self against loss, or to enable him to take up the Note at its 
 maturity ; (5.) The receiving of the Note by the holder from 
 an indorser, as collateral security for another debt ; (6.) A 
 promise by an indorser to pay the Note, after a full knowl- 
 edge that it has not been duly presented for payment by the 
 holder. 
 
 § 258. Of each of these cases, a few brief illustrations 
 may suffice. In the first place, as to inevitable accident or 
 overwhelming calamity. In this category may be placed the 
 cases where all intercourse is stopped between the places 
 where the holder and the maker live ; as, for example, by 
 running ice, by freshets, or the carrying away of bridges, 
 when they live in towns on the opposite banks of a river ; or 
 by violent snow-storms obstructing and rendering impassable 
 the roads to and from the towns where they dwell ; by torna- 
 does, or earthquakes, prostrating, for a short time, all the or- 
 dinary means of communication.^ It has been truly ob- 
 served by a learned author, that there is no positive authori- 
 ty in our law, which establishes any such inevitable accident, 
 or overwhelming calamity, to be a sufficient excuse for the 
 want of a due presentment.^ But it seems justly and natu- 
 
 '■ Story on Bills, 308 ; Chitty on Bills, ch. 9, p. 422 (8tli edit.) ; Id. ch. 10, 
 pp. 485, 486 ; Thomson on Bills, ch. 6, § 1, p. 416 (2d edit.). See Soho- 
 field V. Bayard, 3 Wend. 488 ; ante, § 205. 
 
 " Chitty on Bills, ch. 10, p. 485, note (/) (8th edit.) ; Story on Bills, 
 §§ 308, 327, 365. Mr. Chitty, in this note, says : " There is no reported case, 
 deciding whether accident will excuse a delay in giving notice of non-ac- 
 ceptance or non-payment. In Hilton v. Shepard, .6 East, 16, in notes, Gar- 
 row and Russell contended, that, whether due notice had been given in rea- 
 sonable time must, from the necessity of the thing, be a question of fact for 
 the consideration of the jury ; that it depended upon a thousand combina- 
 tions of circumstances, which could not be reduced to rule. If the party 
 were taken ill, if he lost his senses, if he were under duress, &c., how could 
 
332 PEOMissoEY NOTES. [cHAp. vn; 
 
 rally to flow from the general principle which regulates all 
 matters of presentment and notice in cases of negotiable pa- 
 per. T'he object in all such cases is, to require reasonable 
 diligence on the part of the holder ; and that diligence must 
 be measured by the general conrenience of the commercial 
 world, and the practicability of accomplishing the end re- 
 quired by ordinary skill, caution, and effort. Due present- 
 ment must be interpreted (as Lord Ellenborough said) to 
 mean presented according to the custom of merchants, which 
 necessarily implies an exception in favor of those unavoidable 
 accidents which must prevent the party from doing it within 
 regular time.^ 
 
 § 259. Upon such, a subject, we listen to the doctrines of 
 foreign law with almost implicit confidence, not only because 
 it is from that law that we derive the primitive principles 
 which regulate it, but because the inquirj* is one which con- 
 cerns the interest of all commercial nations, and is not, and 
 
 laches be imputed to him ? Suppose he were prevented from giving notice, 
 ■within the time named, by a physical impossibility ? Such a rule of law 
 must depend upon the distance, upon the course of the post, upon the state 
 of the roads, upon accidents, all of which it is absurd to imagine. Lord 
 Kenyon, C. J. : 'I cannot conceive how this can be a matter of law. I can 
 understand thf.f'the law should require that due diligence shall be used, 
 but that it should be laid down that the notice must be given that day or 
 the next, or at any precise time, under whatever circumstances, is, I own, 
 beyond my comprehension. I should rather have conceived that, whether 
 due diligence had or had not been used, was a question for the jury to con- 
 sider, under all the circumstances of the accident, necessity, and the hke. 
 This, however, is a question very fit to be considered, and when it goes 
 down for trial again, I shall advise the jury to find a special verdict. I find 
 invincible objections, in joay own mind, to consider, that the rule of law, re- 
 quiring due diligence, is tied down to the next day.' In Da'rbishire v. Par- 
 ker, 6 East, 3, it was held, that reasonable time is a matter of law for the 
 Court." It is observable, that he is here speaking of notice of the dishonor 
 of a Note or Bill. In a prior page (p. 422) he applies the same rule to cases 
 pf non-presentment, and therefore it is apparent, that he supposes no dis- 
 tinction to exist between the rule applicable to the one and'to the other. 
 The case of Patience v. Townley, 2 Smith, 223, 224, seems to me fully to 
 sustain the doctrine. Ante, § 205. 
 
 ' Patience v. Townley, 2 Smith, 223, 224. 
 
CHAP. VII.] EXCUSES FOK NONrPEESENTMENT- 883 
 
 ought not to be, bounded by the rules arising under the 
 mere municipal jurisprudence of tlie Common Law.^ Pothier 
 speaks upon this subject in the most direct terms. In treat- 
 ing of the necessity of a due presentment and protest of Bills 
 and Notes (for a protest is required by the French law in 
 both cases), he says, that if, by any superior and unforeseen 
 force (the common phrase of the civilians to indicate inev- 
 itable accidents, and irresistible power), the protest cannot 
 be made upon the day when it ought, the omission of making 
 it on that day will not deprive the holder of his right of re- 
 course or guaranty over against the other parties ; for the 
 holder is never bound to impossibilities ; and that it will be 
 sufficient if he does make it within such time afterwards as 
 the judge shall deem reasonable.^ He illustrates the doctrine 
 by stating the case of the holder transmitting a Bill of Ex- 
 change to a correspondent, at a distant city, for presentment 
 and payment, who dies suddenly upon the eve of the time 
 when the Bill ought to be paid or protested for dishonor ; and 
 he holds that, in such a case, it will be sufficient if the Bill 
 is afterwards presented for payment witliin a reasonable time 
 after the holder is informed of the accident, and is enabled 
 to give orders to receive the money .^ Pothier puts the case 
 of the sudden illness of the owner, or his agent, which pre- 
 vents a due presentment of tlie Bill, iipon the same broad 
 and general foundation ; and says, that it will be sufficient, 
 if done within a reasonable time afterwards.* Pardessus 
 
 ^ It is well known, that, by the strict principles of the Common Law, if a 
 contract becomes incapable of being performed by any inevitable accident 
 or casualty, that constitutes, in many cases, no excuse for the non-perform- 
 ance thereof. Paradine v. Jane, Aleyn, 26, 27, is an illustration of the gen- 
 eral principle. See also the authorities cited in Story on Bailm. § 36 ; 1 
 Story on Eq. Jurisp. §§ 101, 102 ; 2 Story on Eq. Jurisp. § 1303 ; Cutter v. 
 Powell, 6 Term, 320 ; Atkinson v. Ritchie, 10 East, 530 ; Barker v. Hod- 
 son, 3 M. & S. 267. 
 
 ^ Pothier, De Change, n. 144. 
 
 » Ibid. 
 
 ' Ibid. 
 
834 PROMISSORY NOTES. [CHAP. VIL 
 
 affirms the modern law in France to be the same.^ It is also 
 the law of Scotland.^ 
 
 § 260. In the next place, as to the prevalence of a malig- 
 nant disease. The same principle would seem here to apply, 
 as in the case of inevitable accident and casualty, if the 
 disease be so extensively prevalent or so malignant as to 
 suspend all commercial business and intercourse ; such as, 
 for example, the prevalence of the plague, or of the yellow 
 fever, or of the Asiatic cholera, to such an extent as makes 
 it imminently hazardous to life to enter into the infected 
 district.^ But here, again, the Common-Law authorities 
 do not appear to speak directly and conclusively on the 
 point.* 
 
 § 261. In the next place, the presence of political circum- 
 stances amounting to a virtual interruption of the ordinary 
 negotiations of trade. This is governed by the same rule as 
 the preceding cases, and is equally supported by the foreign 
 authorities, and treated as falling within tlie predicament of 
 the pis major J' Upon this ground, founded upon a close 
 analogy to the vis major, it has been accordingly held, that 
 if the due presentment of a Bill or Note is rendered impossi- 
 ble or imminently dangerous by the political circumstances 
 and perils of the town or city where and when it is payable, 
 that constitutes of itself a sufficient excuse ; as, for example, 
 if the place be blockaded, or in danger of immediate invasion 
 or occupation by the enemy, or the scene of a battle, fla- 
 grante bello.^ 
 
 § 262. In the next place, the existence of open war be- 
 
 ^ Pardessus, Droit Comm. Tom. 2, art. 422, 426, 4S4. 
 
 » Thomson on Bills, ch. 6, § 2, p. 452, note (2d edit.) ; Id. § 1, pp. 
 414, 415. 
 
 ' See Tunno v. Lague, 2 John. Cas. 1. Contra, Roosevelt v. Woodhull, 
 Anthon, Nisi Prius, 35. See also Barker v, Hodgson, 3 M. & S. 267. 
 
 * See Thomson on Bills, ch. 6, § 1, pp. 414, 415 (2d edit.) ; Id. § 2, p. 
 452 ; Pothier, De Change, n. 144. 
 
 ^ Pothier, De Change, n. 144 ; Pardessus, Droit Comm. Tom. 2, art. 
 422, 424: 
 
 » Patience ». Townley, 2 Smith, 223, 224, 
 
CHAP. VII.] EXCUSES FOE NON-PRESENTMENT. 335 
 
 tween the country where the holder is domiciled, and the 
 country where the Note is payable, or the maker is domi- 
 ciled, and, as falling within the like predicament, the occupa- 
 tion of the latter country by the enemy. This constitutes a 
 clear and admitted exception ; for war between the two 
 countries (and if one is in the temporary occupation of the 
 enemy, it is during that period deemed an enemy's country), 
 all commercial intercourse and trade, and business between 
 the subjects, is suspended, and indeed prohibited, during the 
 war, or hostile occupation.^ This is now the universally rec- 
 ognized doctrine ; and, consequently, it constitutes a suffi- 
 cient justification of the omission to make due presentment 
 of the Note during the period of the suspension, or the pro- 
 hibition of such intercourse. 
 
 § 263. In the next place, the public interdiction and pro- 
 hibition of commerce between the country of the holder and 
 that of the maker. This is governed by the same principles 
 as the preceding, and requires no particular ilhistration, since 
 it is plain that no subject of any country can be compellable 
 to do any act which violates the law of that country, in order 
 to protect rights which he is not otherwise at liberty to seek 
 or to enforce. 
 
 § 264. _ In the next place, the utter impracticability of find- 
 ing the maker, or ascertaining his place of residence. This, 
 of course, constitutes a sufficient ground to excuse a due 
 presentment of the Note for payment at its maturity ; for the 
 plain reason, that due diligence only is, or can be, required 
 of the holder, to make such presentment. If, therefore, the 
 maker has absconded, or is concealed, or cannot, after due 
 inquiries, be found ; or if he has removed his place of domi- 
 cile to another state or country, since the Note was given, 
 the holder is dispensed from the necessity of any other efforts 
 
 ' 1 Kent, Lect. 3, pp. 66 - 71 (5th edit.) ; Potts v. Bell, 8 Term, 548 ; 
 The Rapid, 8 Crancli, 155 ; Willison v. Patteson, 7 Taunt. 439 ; Griswold 
 V. Waddington, 15 John. 57 ; S. C, 16 John. 438; Scholefield v. Eiohel- 
 berger, 7 Peters, 586 ; Patience v. Townley, 2 Smith, 223, 224 ; Hopkirk 
 V. Page, 2 Brock. 20 ; House v. Adams, 48 Penn. St. 261. 
 
S36 PE0MI6S0RY NOTES. [CHAP. VH. 
 
 to make a presentment, since the law does not require him 
 to do vain acts, or to pursue the maker into foreign countries.* 
 [But where a Note, specifying no place of payment, was 
 made and indorsed in the State of New York, and the maker 
 and indorser resided in a foreign country, and continued 
 to reside tliere when the Note fell due, their place of resi- 
 dence being known to the payee and holder, both when the 
 Note was given* and when it matured, it was held, by the 
 Court of Appeals of New York, that presentment of the 
 Note to the maker, demand of payment from him, and notice 
 to the indorser, were necessary to charge the latter.^] 
 
 § 265. Passing from these, let us now glance at the other 
 class of excuses, — those of a special character. And in the 
 first place, the receiving of the Note so near the time of its 
 maturity as that it becomes impracticable to present it in due 
 season. It is obvious that this excuse can properly apply 
 only as between the immediate parties who have transferred 
 and received the Note within such a brief period. For, as to 
 other antecedent parties, who transferred it long enough to 
 have a due presentment made, they have a right, as to all 
 subsequent holders, to stand upon the very terms of their 
 original contract ; and it is the folly of such holders to take 
 the Note so late as that they cannot fulfil the obligations im- 
 posed by law upon them.^ But, as between the last holder 
 
 ' Ante, §§ 205, 236, 238, 241 ; Story on Bills, §§ 327, 346 ; Stewart v. 
 Eden, 2 Caines, 121 ; Galpin v. Hard, 3 McCord, 394 ; McGruder v. Bank 
 of Washington, 9 Wheat. 598. 
 
 ^ Spies V. Gilmore, 1 Comstock, 321 ; Taylor v. Snyder, 3 Denio, 151. 
 See Porter v. Judson, 1 Gray, 1 75. 
 
 = See ante, § 291 ; Story on Bills, §§ 325, 344 ; Chitty on Bills, ch. 9, pp. 
 402, 421, 428 (8th edit.) ; Id. ch. 10, pp. 465, 46 7 ; Bayley on Bills, ch. 7, § 1, 
 pp. 243, 247 (5th edit.) ; Lenox v. Roberts, 2 Wheat. 373 ; Mills v. Bank 
 of United States, 11 Wheat. 431 ; Robinson v. Blen, 20 Maine, 109. Up- 
 on this subject, Mr. Chitty says : " But the circumstance of the holder hav- 
 ing received a Bill very near the time of its becoming due constitutes no 
 excuse for a neglect to present it for payment at maturity, for he might 
 renounce it if he did not choose to undertake that duty, and send the Bill 
 back to the party from whom he received it ; but if he keep it he is bound 
 
CHAP. VII.] EXCUSES FOB NON-PRESENTMENT. 837 
 
 and his immediate indorser, it is obvious that as each knows 
 the impracticability of a due presentment, each must, under 
 such circumstances, be presumed to agree, that a strict com- 
 pliance shall be waived, and that it shall be suiEcient for the 
 holder to make a presentment within a reasonable time. 
 Any other doctrine would enable the holder of a Note to pro- 
 long, at his pleasure, the responsibility of the antecedent in- 
 dorsers beyond the maturity of the Note. Thus, for example, 
 if the payee of a Note, payable sixty days after date, should, 
 on the day of its date, transfer the Note by indorsement to a 
 person who should live at a gre.at distance from the domicile 
 of the maker, or the place of payment, and the latter should 
 retain it in his possession until the eve of its maturity, and 
 should then transfer it to another indorser at such a distance 
 from the place or domicile that a due presentment was im- 
 possible, as between these parties a reasonable future time 
 for presentment would be naturally implied as a part of the 
 negotiation.^ But the same implication would not exist as 
 to the payee ; for, as to him, it was the duty of his immediate 
 indorsee, and of all subsequent holders, to present the Note 
 for payment at its maturity ; otherwise, the payee would be 
 discharged.^ 
 
 to use all reasonable and due diligence in presenting it. And, therefore;, 
 where the plaintiif, in Yorkshire, on the 26th of December, received a Bill of 
 Exchange, payable in London, which became due on the 28th, and kept it 
 in his own hands until the 29th, when he sent it by post to his banker's in 
 Lincoln, who duly forwarded it to London for presentment, and the Bill 
 was dishonored, it was held, that the plaintiff had by his laches lost his 
 remedy against the drawer and indorsers. But it has been considered in 
 France, that if an indorser himself transfer a Bill so late to the holder as to 
 render it impracticable to present it precisely at maturity, he cannot take 
 advantage of a delay in presentment so occasioned by himself, though the 
 prior indorsers and the drawer may.'' Chitty on Bills, ch. 9, p. 423 (8th 
 edit.). See also Anderton v. Beck, 16 East, 214, cited in Bayley on Bills, 
 ch. 7, § 1, p. 243 (5th edit). 
 
 ' See Anderton v. Beck, 16 East, 214. 
 
 " A doctrine far more broad was entertained by the Court, in Freeman v. 
 Boynton, 7 Mass. 483, 485, where the Court seemed to think that if the 
 holder of the Note lived at a considerable distance from the place or domi- 
 22 
 
838 PROMISSORY NOTES. [CHAP. Vn. 
 
 § 266. The rules ■which have been applied to Notes, pay- 
 able on demand, and to bankers' Notes, and other circulating 
 negotiable securities of the like nature, sufficiently establish 
 the same principle. Bach successive holder of such Notes is 
 •bound to present the same within a reasonable time after he 
 receives the same for payment ; and each successive trans- 
 ferrer thereof, ordinarily, by indorsement or delivery, under- 
 takes to pay only, if upon presentment within a reasonable 
 time after he has parted with the same, his immediate holder, 
 or any subsequent party claiming under him, presents the 
 same within such reasonable, time as the immediate holder 
 ought to present the same.^ 
 
 § 267. The same doctrine, as to the duty of the holder, 
 and the responsibility of antecedent indorsers, where the Note 
 is received so near its maturity as not to be capable of being 
 duly presented at that time for payment, is laid down by 
 Pardessus as the clear result of the French law. He says, 
 that it may so happen that a Bill of Exchange (and the same 
 rule applies to a Note) is transmitted so late, that he who 
 receives it has not sufficient time, even employing the great- 
 est diligence, to present or protest it in due season, In this 
 event, as between him and his indorser, the holder is entitled 
 to consider this as an exception in his favor, as to diligence, 
 as to which the proper tribunal will judge under all the 
 proofs and circumstances. But this will in no respect inter- 
 fere with the rights of the other parties in interest, to avail 
 themselves of the legal effect of the neglect.^ And the same 
 rule is equally applicable to the case of a Bill, indorsed after 
 it has fallen due.^ Pothier adopts and maintains the same 
 
 cile of tie maker, a reasonable time should be allowed to him to transmit 
 the Note to the place where payment should be demanded after the Note 
 became due. But this expression of opinion was not called for by the cir- 
 cumstances of the case ; and, upon general principles, it seems not main- 
 tainable. 
 
 ' Chitty on Bills, ch. 9, pp. 413, 414, 421 (8th edit.). See ante, § 229, 
 note. 
 
 " Pardessus, Droit Comm. Tom. 2, art. 426. « Ibid. 
 
CHAP. Vn.] EXCUSES FOE NON-PRESENTMENT. 339 
 
 doctrine ; ^ and he adds, that in such cases the drawer and 
 precedent indorsers of the Bill may insist upon the neglect 
 to make a due presentment and protest, since it is not in the 
 power of any subsequent indorser to deprive them by such 
 indorsement of this ground of defence.^ 
 
 § 268. In the next place, that the Note is an accommoda- 
 tion Note by the maker, for the benefit of a particular in- 
 dorser. In such a case, this is a sufiicient excuse for the 
 want of a due presentment to the maker, so far as respects 
 the particular indorser, for whose benefit it is made ; since, 
 in truth, as between him and the maker, he is the proper 
 party and primary debtor to pay the Note.^ But as to all 
 other indorsers the omission will be fatal.* The reason is, 
 that the accommodated indorser, in such a case, can suffer 
 no injury or loss by reason of the want of a due presentment; 
 since, if it had been dishonored and he had been obliged to 
 pay it, he could have no recourse over against the maker, 
 any more than a drawer of a Bill of Exchange would have 
 against his accommodation acceptor, in case of a dishonor by 
 the latter.^ We have seen that the indorser of a Note stands 
 generally in the same relation to the maker as the drawer of 
 a Bill does to the acceptor. The same rule, indeed, applies 
 in these cases as does apply to cases where notice is omitted 
 to be given to the indorser, or drawer, under the like cir- 
 cumstances ; of which we shall treat hereafter.^ 
 
 ' Pothier, De Change, n. 141. 
 
 ^ Ibid. 
 
 ' See Bayley on Bills, ch. 7, § 1, p. 217 (5tli edit.) ; Id. ch. 9, p. 343 ; 
 ,ChittyonBills,cli. 10, pp. 468-471 (8th edit.); Walton u. Watson, 13 Mar- 
 tin, 347; Sharp v. Bailey, 9 B. & C. 44 ; Norton v. Pickering, 8 B. & C. 
 610 ; Agan v. MeManus, 11 John. 180 ; Chandler v. Mason, 2 Verm. 193 ; 
 Story on Bills, § 370; Terry u. Parker, 6 A. & El. 502. See Sands u. 
 Clarke, 8 C. B. 761 ; Shriner v. Keller, 25 Penn. St. 61 ; Fulton v. Mac- 
 cracken, 18 Md. 528. But in Louisiana, an accommodation itidorser is 
 entitled to notice like any other indorser. Ball v. Greaud, 14 La. An. 305. 
 
 * Ibid. ; Cory v. Scott, 3 B. & Aid. 619 ; Norton v. Pickering, 8 B. & C. 
 610; Warder v. Tucker, 7 Mass. 449 ; Agan v. McManus, 11 John. 180. 
 
 ' Ibid. 
 
 ' Mr. Chitty on this subject, says : " But if the Bill was accepted for the 
 
340 PROMISSORY NOTES. i [CHAP. VIL 
 
 § 269. It will be at once perceived, that the doctrine 
 which governs in all these cases of accommodation makers is, 
 therefore, precisely the same which regulates accommodation 
 acceptances. Each supposes that the party, for whose benefit 
 the Bill or Note is accepted or made, has no funds in the 
 hands of the acceptor or maker ; and therefore the same 
 common excuse for non-presentment applies, that no funds 
 exist which are appropriated to the payment thereof.^ Still, 
 however, in common cases of accommodation acceptances 
 and Notes, it may be open for the drawer or indorser to 
 show, if he can, that he has, in point of fact, sustained 
 damage or loss from the want of due presentment or notice, 
 and to the extent thereof it would seem that he ought to be . 
 exonerated.^ 
 
 accommodation of the drawer, and he expressly or impliedly engaged to 
 pay it ; or, if the drawer of a Bill, from the time of making it to the time 
 when it was due, had no effects or property whatever in the hands of the 
 drawee or acceptor, and had no right, upon any other ground, to expect 
 that the Bill would be paid by him, or any other party to the Bill, he is 
 prima facie not entitled to notice of the dishonor of the Bill ; nor can he 
 object, in such case, that a foreign Bill has not been protested. In this 
 case, the drawer, being himself the real debtor, acquires no right of action 
 against the acceptor by paying the Bill, and suffers no injury from want of 
 notice of non-acceptance or non-payment, and therefore the laches of the 
 holder affords him no defence. And therefore, where the drawer had 
 supplied the drawee with goods on credit, which did not elapse until after 
 the Bill would fall due, and the drawer had no right to draw the Bill, it 
 Weis held, that he ■was not discharged by the want of notice of non-pay- 
 ment." Chitty on Bills, ch. 10, pp. 468, 469 (8th edit.) ; Id. pp. 470, 471, 
 481. 
 
 ^ Story on Bills, §§ 367 and note, 369, 370 ; Chitty on Bills, ch. 9, p. 389, 
 (8th edit.) ; Id. ch. 10, pp. 467-482 ; Bayley on Bills, ch. 7, § 2, pp. 294- 
 800 (5th edit.). 
 
 « Fitzgerald v. Williams, 6 Bing. (N. C.) 68 ; Chitty on Bills, ch. 10, pp. 
 481, 484, 485 (8th edit.). Mr. Chitty (p. 481) says : " The proof that the 
 drawer had no effects in the hands of the drawee only affords a, prima facie 
 excuse for the want of due notice of the dishonor, and it may be rebutted 
 by its appearing that the drawer, on taking up the Bill, would be entitled 
 to some re;nedy over against some other party, as a right to sue the acceptor 
 or any other party, or by showing that he has been actually preju- 
 diced by the want of notice ; as if the Bill were drawn for the accom- 
 
CHAP. VII.] EXCUSES FOR NON-PRESENTMENT. 341 
 
 § 270. In the modern French law a similar doctrine pre- 
 vails (as, indeed, it did in the old law) in relation to cases 
 where there is an acceptance for the accommodation of the 
 drawer of a Bill, or by the making of a Note for the accommo- 
 dation of the indorser. In each case, the fact is a sufficient 
 excuse for not making due presentment, upon the very 
 ground, that no fund or provision has been made by the 
 drawer or indorser for the due discharge of the Bill.^ , Thus, 
 for example, if the drawer has not furnished funds (j)ro- 
 visioTi) for the payment of the Bill, or the indorser, for whose 
 benefit the Note was made, has not supplied funds to the 
 maker to dis(!harge it at maturity, that will be a sufficient 
 . excuse for the want of due presentment and protest, as well 
 as for the want of due notice.^ 
 
 § 271. In the next place, as to cases of a spepial agree- 
 ment between the holder and a particular indorser, waiving 
 due presentment of the Note. This proceeds upon the well- 
 known maxim : Quilihet potest renunciare juri pro se iniro- 
 ducto.^ If the agreement is prior to the maturity of the Note, 
 it necessarily amounts to a dispensation from a due present- 
 
 modation of the acceptor, or payee, or indorser. And there is a dis- 
 tinction as to the necessity for notice to the drawer of a dishonored Bill, 
 when accepted for the accommodation of the drawer in a single transac- 
 tion, and a case of various dealings, the excess for the accommodation of 
 the drawer or acceptor ; in the latter case, notice is equally necessary, 
 without actual effects. So, where W. drew a Bill upon a person to whom 
 he had been sending goods for sale, and who accepted the Bill, neither 
 party knowing the state of accounts between them, and it turned out that 
 W., at the time, was indebted to the drawee, yet the Court held that this 
 was not to be considered as an accommodation Bill, within the acceptation 
 of that term, and, consequently, that there was no implied contract of 
 indemnity as to costs." 
 
 ' Pardessus, Droit Comm. ,Tom. 2, art. 392, 435; Story on Bills, § 368; 
 Pothier, De Change, n. 156, 1,57 ; Torrey v. Foss, 40 Maine, 74 ; Story on 
 Bills, § 478, and note ; Kemble v. Mills, 1 M. & G. 762, note (V). 
 
 ' Ibid.; Code de Comm. art. 117, 169-171. 
 
 ' 2 Inst. 183; Wingate's Maxims, 483; Branch's Maxims, 179; Central 
 Bank V. Davis, 19 Pick. 373, 375; Taunton Bank v. Richardson, 5 Pick. 
 436.' ' 
 
342 PEOMISSOBY NOTES. [CHAP. VIL 
 
 ment of the Note ; and it would operate as a fraud upon the 
 holder, if the objection were available afterwards, since he 
 may have regulated his conduct, as to the neglect, in conse- 
 quence of his confidence in the agreement.^ In such a 
 case, it would not seem to make any difference, whether the 
 agreement were for a valuable consideration or not ; since, if 
 it were not held obligatory, it would be a manifest detriment 
 to the holder, occasioned by the fraud or breach of faith of 
 the indorser. But if the agreement were contemporaneous 
 with the origin of the title of the holder, there it might 
 assume the positive form of a valid obligation, operating ex 
 contractu upon a sufficient consideration.^ 
 
 § 272. Agreements of this sort are always construed 
 strictly, and are not extended beyond the fair import of the 
 terms.^ Thus, for example, an agreement to waive notice of 
 the dishonor of the Note will be no excuse for the want of a 
 due presentment of the Note to the maker for payment.* 
 So, an undertaking by an indorser, by a written memoran- 
 dum, as follows: "I do request, that hereafter any Notes 
 
 ' See Lincoln and Kennebec Bank v. Page, 9 Mass. 155 ; Fuller v. 
 McDonald, 8 Greenl. 213 ; Berkshire Bank v. Jones, 6 Mass. 524 ; Backus 
 V. Shipherd, 11 Wend. 629; Story on Bills, §§ 371, 373; Johnston v. 
 Searcy, 4 Yerg. 182; Barker v. Parker, 6 Pick. 80 ; Thornton v. Wynn, 
 12 Wheat. 183; Leffingwell v. White, 1 John. Cas. 99; Story on Bills, 
 § 373; Norton v. Lewis, 2 Conn. 478; Boyd v. Cleveland, 4 Pick. 525; 
 Coddington v. Davis, 3 Denio, 19; Mills v. Beard, 19 Cal. 158; Power v. 
 Mitchell, 7 Wis. 161 ; Edwards v. Tandy, 36 N. H. 540 ; Sherer v. Easton 
 Bank, 33 Penn. St. 134. 
 
 ' Ibid. ; Leonard v. Gary, 10 Wend. 504 ; Boyd v. Cleveland 4 Pick. 
 625 ; Leffingwell v. White, IJohu. Cas. 99. A verbal agreement at time 
 of transfer, dispensing with demand and notice, is part of the contract, and 
 binds the indorser. Power v. Mitchell, 7 Wis. 161. 
 
 ' Berkshire Bank v. Jones, 6 Mass. 524; Central Bank v. Davis, 19 Pick. 
 373; Union Bank v. Hyde, 6 Wheat. 572; Creamer v. Perry, 17 Pick. 
 332; Backus u. Shipherd, 11 Wend. 629; Lane v. Steward, 20 Maine, 
 98 ; Chitty on Bills, eh. 9, p. 390 (8th edit.) ; May v. Coffin, 4 Mass. 341 ; 
 Pardessus, Droit Comm. Tom. 2, art. 433. 
 
 ' Ibid. ; post, § 367. A waiver of protest by, an indorser is not a waiver 
 of notice of non-payment. Ball v. Greaud, 14 La. An. 305 ; Bucklej^ v. 
 Bentley, 42 Barb. 646. 
 
CHAP. Vn.] EXCUSES FOR NON-PEESENTMENT. 343 
 
 that may fall due at the Union Bank, on which I am or may 
 be indorsei", may not be protested, as I will consider myself 
 bound in the same manner as if the same had been legally 
 protested," has been held to be so ambiguous and doubt- 
 ful, whether it meant to import a waiver of demand and no- 
 tice, or not ; and that it required other evidence to prove the 
 intention to make such a waiver.^ [But where an indorser 
 of a Note had been preferred in respect to his liability, in an 
 assignment made by the maker for the benefit of his cred- 
 itors, and had transferred to the holder his interest under the 
 assignment, and afterwards, while the Note was running to 
 maturity, wrote to the holder, saying : " You need not pro- 
 test T. B.. C.'s Note, due, &c. for, &o. and I will waive the 
 necessity of protest thereof," this was held sufficient to 
 dispense with a presentment and notice of non-payment.^] 
 In all these cases, however, the agreement will not bind 
 any indorsers, except those who are parties to it, or have 
 sanctioned it. 
 
 • Union Bank v. Hyde, 6 Wheat. 572. 
 
 ' Coddington v. Davis, 3 Denio, 1 7. An agreement that a demand and 
 notice were not to be required until a certain day after maturity, and it 
 was held that the holder must show a good demand and notice on that day, 
 Power V. Mitchell, 7 Wis. 161 ; and that the indorser was estopped from 
 objecting that they were not -made at the maturity of the Note ; but in 
 New Hampshire it was held, that an agreement between the indorser and 
 holder that payment should be extended a certain time, obviated the ne- 
 cessity of a demand and notice at the expiration of the extended time. 
 Amoskeag Bank v. Moore, 37 N. H. 539. The day before maturity the 
 holder and maker called upon the indorser and said they had called to 
 make him holden, and that if he did n't say it was all right he would be 
 notified on the last day. The indorser said, " The note is good ; put yourself 
 to no trouble ; it is all right." Held that there was evidence of a waiver 
 of demand and notice. Russell v. Cronkhite, 32 Barb. 282. The words 
 " protest and notice of protest waived " upon a Note is a waiver of demand 
 and notice. Gordon v. Montgomery, 19 Ind. 110. A Note, indorsed A. 
 C. " accountable," is a waiver of demand and notice. Furbear v. Caverly, 
 42 N. H. 74. An indorser said to the payee he had seen or received no- 
 tice of protest, and would have to pay the Note, and it was held that this 
 was evidence of due notice or of a waiver of notice. Long v. Crawford, 
 18 Md. 220. The burden is on the holder to prove a waiver, or a new 
 promise. Edwards v. Tandy, 36 N. H. 240. 
 
344 PROMISSORY NOTES. [CHAP. Vn. 
 
 § 273. The French law embodies, substantially, the same 
 doctrine, with the same limitations, at least when the circum- 
 stances clearly establish a dispensation with the necessity of 
 a due presentment.^ If the drawer of a Bill, or the indors- 
 er of a Note, at its original formation, adds to his signature 
 or indorsement, that the Bill or Note, upon its dishonor, 
 may be returned without protest (which is usually expressed 
 in the brief terms, retour sans protSt, or sans frais), the 
 holder, by such a clause, is dispensed from the necessity of 
 making a formal demand and protest for non-payment there- 
 of.^ So, if afterwards, and before the maturity of the Note, 
 he dispenses with the necessity of a protest, that will excuse 
 a due presentment. But then the dispensation must be ex- 
 press and clear ; for a mere promise to pay before the ma- 
 turity of the Note is not, of itself, held to amount to a dis- 
 pensation ; but the waiver of the necessity of a protest must 
 be direct.^ 
 
 § 274. In like manner, in many cases, by our law, a waiv- 
 er, after the maturity of the Note, of the objection of the 
 want of due presentment and demand, like that of the want 
 of due notice, may also, it seems, be effectual to bind an in- 
 dorser, who assents to it.* Thus, for example, a new prom- 
 ise after such default, with a full knowledge of all the cir- 
 cumstances, will amount to a waiver of the objection, and 
 entitle the holder to recover against the indorser, who has so 
 promised to pay, although it will be inoperative as to the 
 other indorsers.^ In terms, the French law does not seem to 
 
 ' See Pardessus, Droit Comm. Tom. 2, art. 433, 437. 
 
 ' Pardessus, Droit Comm. Tom. 2, art. 425. 
 
 ' Pardessus, Droit Comm. Tom. 2, art. 433. 
 
 * Story on Bills, §§ 327, 373 ; Chitty on Bills, eh. 9, p. 390 (8th edit.) ; 
 Id. eh. 10, pp. 533-540 ; Thornton v. Wynn, 12 Wheat. 183 ( Borradaile 
 V. Lowe, 4 Taunt. 93; Leonard v. Gary, 10 Wend. 504; Reynolds v. 
 -Douglass, 12 Peters, 497, 505 ; Martin «. Winslow, 2 Mason, 241 ; Martin 
 «. IngersoU, 8 Pick. 1. 
 
 " Ibid. ; Hopkins v. Liswell, 12 Mass. 52 ; Trimble v. Thorne, 16 John. 
 152 ; Jones v. Savage, 6 Wend. 658 ; Tebbetts v. Dowd, 23 Wend. 412 ;. 
 Van Derveer v. Wright, 6 Barb. 547 ; Blodgett v. Durgin, 32 Verm. 361 ; 
 
CHAP. Vn.] EXCUSES FOR NON-PRESENTMENT. 345 
 
 allow a simple new promise after the maturity of the Note, 
 any more than before, to have the effect of such a waiver ; 
 but the terms must be express and direct, unless, indeed, the 
 holder is misled thereby to his injury. But a payment of 
 the Note, with such knowledge of the default, could not be 
 recalled.^ 
 
 § 275. But, in order to make such a waiver binding it 
 mustbe clearly established, and deliberately made, after a 
 full knowledge of the facts ; for, as we shall presently see, it 
 will not be presumed or implied from doubtful circum- 
 stances, or sudden acknowledgments, or hasty expressions, 
 made in cases of surprise or unexpected demand.^ Even 
 when such a waiver is clearly established, it has been thought 
 by some of the American Courts, that the indorser, if once 
 discharged, would not be bound, unless there was a new and 
 sufficient consideration for the waiver, although the waiver 
 might afford a sufficient ground of presumption that therd 
 had been a due presentment, where the facts and circum- 
 stances were of such an equivocal nature as left it doubtful 
 whether a due presentment had been made or not.^ And 
 there is great force and weight in the objection, that, where 
 
 Loose V. Loose, 36 Penn. St. 538 ; Edwards v. Tandy, 36 N. H. 540 ; 
 Tobey v. Berley, 26 111. 426. 
 
 ' Pardessus, Droit Comm. Tom. 2, art. 433, 435 ; post, § 277. 
 
 ' May V. Coffin, 4 Mass. 341 ; Leonard v. Gary, 10 Wend. 504; Martin 
 V. Winslow, 2 Mason, 241 ; Jones v. Savage, 6 Wend. 658 ; Hopkins v. 
 Liswell, 12 Mass. 52 ; Martin v. Ingersoll, 8 Pick. 1 ; Miller v. Hackley, 
 5 John. 375 ; Griffin v. Goff, 12 John. 423 ; Richter v. Selin, 8 S. & K. 
 425 ; Reynolds v. Douglass, 12 Peters, 497, 505 ; Tower v. Durell, 9 Mass. 
 332 ; Garland v. Salem Bank, 9 Mass. 408 ; Penn v. Poumeirat, 14 Martin, 
 541 ; Cayuga County Bank v. Dill, 5 Hill, 403 ; Creamer v. Perry, 1 7 
 Pick. 332 ; Campbell ». Varney, 12 lo. 43 ; Edwards v. Tandy, 36 N. H. 
 540. The burden is on the plaintiff to show that the promise was made 
 with a full knowledge of all the facts. Edwards v. Tandy, ut supra. But 
 in Pennsylvania such a promise raises a presumption that the indorser 
 knew of the dishonor of the Note. Loose v. Loose, 36 Penn. St. 528. A 
 promise by an indorser upon the erroneous information that there has been 
 a demand is not a waiver. Arnold v. Dresser, 8 Allen, 435. 
 
 ' Ibid. 
 
346 PROMISSORY NOTES. [CHAP. VII. 
 
 the indorser is once discharged, lie cannot be made liable, in 
 point of law, upon any new promise to pay the Note, without 
 a new consideration, of which the waiver is merely evidence.^ 
 But the weight of the American authorities seems the other 
 way.2 
 
 ' Tebbetts v. Dowd, 23 Wend. 412; Van Derveer v. Wright, 6 Barb. 
 547. 
 
 ' Lawrence li. Ralston, 3 Bibb, K. 102 ; Peabody v. Harvey, 4 Conn. 
 119; 3 Kent, Lect. 44, p. 113 (5th edit). Mr. Chancellor Kent there 
 says : " If due notice of a non-acceptance or non-payment be not given, or 
 a demand on the maker of a Promissory Note be not made, yet a subsequent 
 promise to pay, by the party entitled to notice, will amount to a waiver of 
 the want of demand or notice, provided the promise was made clearly and 
 unequivocally, and with full knowledge of the fact of a want of due dili- 
 gence on the part of the holder. The weight of authority is, that this 
 knowledge may be inferred, as a fact, from the promise, under the attend- 
 ing circumstances, without requiring clear and affirmative proof of the 
 knowledge." And he cites Goodall v. Dolley, 1 Term, 712 ; Hopes v. Al- 
 der, 6 East, 16, in noiis ; Borradaile v. Lowe, 4 Taunt. 93; Stevens v. 
 Lynch, 2 Camp. N. P. 332 ; S. C, 12 East, 38 ; Miller v. Hackley, 5 John. 
 375; Martin «. Winslow, 2 Mason, 241; Fotheringham v. Price, 1 Bay, 
 291 ; Thornton v. Wynn, 12 Wheat. 183 ; Pate v. M'Clure, 4 Rand. 164 ; 
 Otis V. Hussey, 3 N. H. 346 ; Piersons v. Hooker, 3 John. 68 ; Hopkins v. 
 Liswell, 12 Mass. 52 ; Breed v. Hillhouse, 7 Conn. 523. Contra, Trimble 
 V. Thorne, 16 John. 152. See also Story on Bills, § 320, and cases there 
 cited ; Jones v. Savage, 6 Wend. 658 ; Boyd u. Cleveland, 4, Pick. 525 ; 
 Thomson on Bills, ch. 6, § 4, pp. 523, 524, 530 (2d edit.) ; Luadie v. Rob- 
 ertson, 7 East, 231 ; Taylor v. Jones, 2 Camp. 105 ; Gunson v. Metz, 1 
 B. & C. 193. Mr. Chitty (on Bills, ch. 10, p. 533, 8th edit.) says : " The 
 consequences, however, of a neglect to give notice of non-payment of a Bill 
 or Note, or to protest a foreign Bill, may be waived by the person entitled 
 to take advantage of them. Thus it has been decided, that a payment of 
 a part, or a promise to pay the whole or part, or to ' see it paid,' or an ac- 
 knowledgment that ' it must be paid,' or a promise that ' he will set the 
 matter to rights,' or a qualified promise, or a mere unaccepted offer of a 
 composition with other creditors, made by the person insisting on the want 
 of notice (after he was aware of the laches) to the holder of a Bill, amounts 
 to a waiver of the consequence of the laches of the holder, and admits his 
 right of action. And, in some of the cases upon this subject, the effect of 
 such partial payment, or promise to pay, has been carried still further, and 
 been considered not merely as a waiver of the right of object to the laches, 
 but even as an admission that the Bill or Note had in fact been regularly 
 presented and protested, and that due notice of dishonor had been given ; 
 
CHAP. Vn.] EXCUSES FOE NON-PEESENTMENT. 347 
 
 § 276. What circumstances will, in our law, amount to the 
 proof of a waiver of the want of due presentment, or of the 
 want of due notice of the dishonor, is sometimes a matter of 
 no inconsiderable doubt, and nicety, and difficulty.^ Slight- 
 er circumstances may be sufficient, where the situation of the 
 indorser is such as fairly to give rise to the presumption that 
 
 and this even in cases where the party, who paid or promised, afterwards 
 stated that in fact he had not due notice, &e. ; because it is' to be inferred 
 that the part-payment, or promise to pay, would not have been made unless 
 all circumstances had concurred to subject the party to liability, and induce 
 him to make such payment or promise. Thus, where an indorsee, three 
 months after a Bill became due, demanded payment of the indorser, who 
 first promised to pay it, if he would call again with the account, and after- 
 wards said that he had not had regular notice, but as the debt was justly 
 due he would pay it ; it was held, that the first conversation being an abso- 
 lute promise to pay the Bill, was •prima facie an admission that the Bill 
 had been presented to the acceptor for payment in due time, and had been 
 dishonored, and that due notice had been given of it to the indorser, and 
 superseded the necessity of other proof to satisfy those averments in the 
 declaration ; and that the second conversation only limited the inference 
 from the former, so far as the want of regular notice of the dishonor to the 
 defendant went, which objection he then waived. So, where the drawer 
 of a foreign Bill, upon being applied to for payment, said : ' My aifairs are at 
 this moment deranged, but I shall be glad to pay it as soon as my accounts 
 with my agent are cleared,' it was decided, that it was unnecessary to prove 
 the averment of the protest of the Bill. And, in an action by the indorsee 
 against the drawer of a Bill, the plaintifi" did not prove any notice of dis- 
 honor to the defendant, but gave in evidence an agreement between a prior 
 indorser and the drawer, after the Bill became due, which recited that the 
 defendant had drawn, amongst others, the Bill in question ; that it was 
 overdue, and ought to be in the hands of the prior indorser, and that it was 
 agreed the latter should take the money due to him upon the Bill by in- 
 stalments ; it was held, that this was evidence that the drawer was at that 
 time liable to pay the Bill, and dispensed with other proof of notice of dis- 
 honor. Again, where, in an action against the drawer, in lieu of proof of 
 actual notice, the defendant's letter was proved, stating ' That he was an 
 accommodation drawer, and that the Bill would be paid before next term,' 
 though not saying ' by defendant,' Lord Ellenborough said : ' The defend- 
 ant does not rely upon the want of notice, but undertakes that the Bill will 
 be duly paid before the term, either by himself or the acceptor. I think 
 the evidence sufficient.'" See Story on Bills, § 317 ; Donnelly v. Howie, 
 Hayes & Jones, 436. 
 
 ' Thomson on Bills, ch. 6, § 4, pp. 523-526 (2d edit.). 
 
348 PEOMISSOEY NOTES. [CHAP. VH. 
 
 the Note was made for his accommodation ; or, that he had 
 not or could not have sustained any prejudice than would 
 be essential where no snch presumption should arise.^ Pay- 
 ment of a part of the Note, or a promise to pay the Note,, 
 made with a full knowledge of the want of a due present- 
 ment, or other default, would be sufficiently evincive that the 
 indorser could not have sued on the Note ; and, consequent- 
 ly, that he could not insist upon the want of due present- 
 ment or notice.^ 
 
 § 277. The French law, in many cases, proceeds upon a 
 similar principle. Thus, if the indorser should, upon a sim- 
 ple notice, or a notice by the protest, pay the holder the 
 amount of the Bill or Note, he will not be at liberty to insist 
 upon having it repaid to him, if he should subsequently as- 
 certain the nullity of the act of protest, or that there has 
 been undue negligence on the part of the holder ; unless, in- 
 deed, the payment should have been produced by the fraud 
 of the holder. For it is his own folly to be the victim of his 
 own too great facility, since he ought to have known whether 
 the protest was too late, or was a nullity ; and, as it might 
 be deemed a fair debt, it was competent for the indorser to 
 waive or renounce his rights.^ 
 
 § 278. On the other hand, if there has not been any due 
 presentment or notice of the dishonor of the Note, and the 
 indorser, after the maturity of the Note, supposing himself 
 liable to pay the same,- takes security therefor from the mak- 
 er, that will not alone amount to a waiver of the objection of 
 
 ' Sharp V. Bailey, 9 B. & C. 44 ; Bayley on Bills, ch. 7, § 2, pp. 294, 295 
 (5th edit.) ; Chitty on Bills, ch. 8, pp. 356, 357 (8th edit.) ; Id. ch. 9, p. 386 ; 
 Nicholson v. Gouthit, 2 H. Black. 609 ; Khett v. Poe, 2 How. (U. S.) 457; 
 Thomson on Bills, ch. 6, § 4, pp. 523 -526 (2d edit.). 
 
 = Bayley on Bills, ch. 7, § 2, pp. 291, 293 (5th edit.) ; Vaughan v. Fuller, 
 2 Str. 1246; Rogers v. Stephens, 2 Term, 713; Anson t). Bailey, Bull, 
 N. P. 276 ; Wilkes v. Jacks, Peake, 202 ; Sharp v. Bailey, 9 B. & C. 44 ; 
 Porter v. Rayworth, 13 East, 417 ; Thomson on Bills, ch. 6, § 4, pp. 527- 
 530 (2d edit.) ; Curtis w. Martin, 20 111. 557 ; Sherer v. Easton Bank, 33 
 Penn. St. 134. . 
 
 ' Pardessus, Droit Comm. Tom. 2, art. 434, 
 
CHAP. VII.] EXCUSES FOE NON-PRESENTMENT. 349 
 
 the want of due presentment, or of due notice ; since it can- 
 not justly be inferred, tliat he means, at all events, to make 
 himself liable for the payment of the Note ; but he takes the 
 security merely as a contingent security, in case of his liabil- 
 ity.^ Upon the like reason, the indorser's making exertions, 
 upon the supposition of his liability to pay the Note, to ob- 
 tain payment from a prior party on the Note ; ^ or an offer to 
 indorse a new Note of the maker which is not accepted ; ^ or 
 a conditional offer to pay in a certain manner, or in a certain 
 time, which is not accepted ; * will not amount to a waiver, 
 either of a due presentment or of due notice. 
 
 § 279. In many cases, the promise of an indorser, eitheT 
 prior or subsequent to the maturity of the Note, is relied on as 
 evidence to establish a waiver of due presentment, or due 
 notice of the dishonor of the Note. And all the circum- 
 stances of the case must then be taken into consideration, in 
 order to ascertain whether the promise does or does not 
 amount to such a waiver.^ Thus, where the indorser prom- 
 ised a bank to attend to the renewal of a Note held by the 
 bank, and to take care of it, and also directed the usual no- 
 tice to the maker when it became due to be sent to himself, 
 it was held to amount to presumptive evidence of a waiver 
 by him of a regular presentment and notice.® So, where the 
 indorsee of a Note, at the time when the Note was indorsed 
 to him, told the indorser that he had no confidence in the 
 other parties to the Note, and did not know them, and should 
 look wholly to him ; and the indorser replied, that he should 
 be in New York," where the indorsee lived, when the Note 
 became due, and would take it up, if not paid by any other 
 
 ' Tower v. Durell, 9 Mass. 332 ; Kichter v. Selin, 8 Serg. & E. 425 ; 
 post, § 281 ; Otsego County Banku. Warren, 18 Barb. 290. 
 
 ' Hussey v. Freeman, 10 Mass. 84. 
 
 ' Laporte v. Landry, 17 Martin, 359. 
 
 * Agan f. McManus, 11 John. 180; Cuming v. Frencli, 2 Camp. 107, 
 note; Goodall v. Dolley, 1 Term, 712; Campbell v. Varney, 12 lo. 43. 
 
 ' Pos«, §§360-366. 
 
 ° Taunton Bank v. Richardson, 5 Pick. 436. 
 
350 PROMISSOBY NOTES. [CHAP. VII. 
 
 party ; it was held to warrant the conclusion, that there was 
 a waiver of notice.^ But where the language or the cir- 
 cumstances are of a more doubtful and uncertain character, 
 no such waiver will (as we shall presently see) be ordinarily 
 inferred. 
 
 § 280. In cases of a promise made after the maturity of 
 the Note, perhaps stronger circumstances will be required to 
 justify the inference of a waiver of the want of due demand 
 and notice than in cases of a promise made prior to the ma- 
 turity thereof.^ But at all events a promise to pay, made 
 after the maturity of the Note, or even a payment of the Note 
 by an indorser, under a mistake of material facts [as, igno- 
 rance that a demand had not been made ^] , will not bind the 
 indorser, or amount to a waiver of the due presentment, or 
 due notice.* Whether a new promise to pay, under a mis- 
 take of law, will amount to such a waiver, is a matter upon 
 which great diversity of opinion has been entertained.^ But 
 
 ' Boyd V. Cleveland, 4 Pick. 525. But tlie indorser's statement to the 
 holder at the time of indorsing, that the Note would not be paid by the 
 maker, did not excuse or waive presentment. Hart u. Eastman, 7 Min. 74. 
 
 " See Creamer v. Perry, 17 Pick. 332, 335; Oswego Bank v. Knower, 
 H. &D. 122. 
 
 ' Low V. Howard, 11 Cush. 268. 
 
 * Garland v. The Salem Bank, 9 Mass. 408 ; Chitty on Bills, ch. 8, pp. 
 372, 373 (8th edit.) ; Id. ch. 9, p. 448 ; Warder v. Tucker, 7 Mass. 449; 
 Freeman v. Boynton, 7 Mass. 483; Low v. Howard, 10 Cush. 159; Martin 
 V. Ingersoll, 8 Pick. 1 ; Dennis v. Morrice, 3 Esp. 158 ; Thomson on Bills, 
 ch. 6, § 4, pp. 528, 529 (2d edit.). 
 
 ' See 3 Kent, Lect. 44, p. 113 (5th edit.) ; Thomson on Bills, ch. e, § 4, 
 p. 530 (2d edit.) ; Bayley on Bills, ch. 9, pp. 340, 341 (5th edit.) ; Chitty 
 on Bills, ch. 10. p. 536 (8th edit.). Mr. Chitty here says: " It seems to 
 have been once considered, that a misapprehension of the legal liability 
 would prevent a subsequent promise to pay from being obligatory, and 
 that even money paid in pursuance of such promise might be recov- 
 ered back. But from subsequent cases it appears, that such doctrine is not 
 law, and that money paid by one knowing (or having the means of such 
 knowledge in his power) all the circumstances, cannot, unless there has 
 been deceit or fraud on the part of a holder, be recovered back again on 
 account of such payment having been made under an ignorance of the law, 
 although the party paying expressly declared, that he paid without preju- 
 
CHAP. VII.J EXCUSES FOE NON-PEESENTMENT. 351 
 
 both of these subjects will more properly and fully come be- 
 fore us when we examine what will amount to an excuse, or 
 waiver, of the want of notice to which the authorities are in 
 general most pointedly applied. 
 
 § 281. In the next place, the receiving of a security by the 
 indorser, before or at any time of the maturity of the Note, as 
 an indemnity or payment therefor. In such a case, if the 
 security or indemnity be a full security or indemnity for the 
 amount of the Note, it is plain that the indorser can receive 
 no damage from the want of a due presentment.^ A fortiori, 
 the same doctrine will apply, where the indorser has received 
 
 dice. And as an objection made by a drawer or indorser to pay the Bill 
 on the ground of the want of notice, is siricti juris, and frequently does not 
 meet the justice of the ease, it is to be inferred from the same cases, and it 
 is, indeed, now clearly established, that even a mere promise to pay, made 
 after notice of the facts and laches of the holder, would be binding, though 
 the party making it misapprehended the law. Therefore, where the drawer 
 of a Bill of Exchange, knowing that time had been given by the holder to 
 the acceptor, but apprehending that he was still liable upon the Bill in 
 default of the acceptor, three months after it was due, said : ' I know I am 
 liable, and if the acceptor does not pay it I will,' it was adjudged that 
 he was bound by such promise ; and the Court said : ' That the cases above 
 referred to proceeded on the mistake of the person paying the money 
 under an ignorance or misconception of the facts of the case, but that in 
 the principal case the defendant had made the promise with a full knowl- 
 edge of the circumstances three months after the Bill had been dishonored, 
 and could not now defend himself upon the ground of his ignorance of law 
 when he made the promise.' And such a promise will dispense with the 
 necessity for a protest of a foreign Bill. But see contra. Warder v. Tucker, 
 7 'Mass. 449; May v. Coffin, 4 Mass. 342 ; Freeman v. Boynton, 7 Mass. 
 483. 
 
 ' Bayley on Bills, ch. 7, § 2, p. 310 (5th edit.) ; Chitty on Bills, ch. 10, 
 p. 473 (8th edit.) ; Story on Bills, § 374; Corney v. Da Costa, 1 Esp. 302, 
 303; Martel v. Tureauds, 18 Martin, 118; Mechanics' Bank a. Griswold, 
 7 Wend. 165; 3 Kent, Lect. 44, p. 113 (5th edit.) ; Mead v. Small, 2 
 Greenl. 207; Andrews v. Boyd, 3 Met. 434; Bond v. Farnham, 5 Mass. 
 170; Perry v. Green, 4 Harrison, 61 ; Prentiss v. Danielson, 5 Conn. 175 ; 
 Duvall V. Farmers' Bank, 9 Gill & John. 47. But see Kramer v. Sandford, 
 
 4 Watts & Serg. 328 ; Pardessus, Droit Comm. Tom. 2, art. 435 ; Seacord 
 V. Miller, 3 Kernan, 55 ; Otsego Bank v. Warren, 18 Barb. 290 ; Lewis v. 
 Kramer, 3 Md. 265 ; Marshall v. Mitchell, 34 Me. 227; Denney w. Palmer, 
 
 5 Ired. 610. 
 
352 PKOMISSORY NOTES. [CHAP. VIJ. 
 
 money, or property, for the very purpose of taking up the 
 Note at its maturity.^ This latter doctrine would seem to 
 follow out the doctrine of Courts of Equity applied in favor 
 of sureties, where securities are held by the creditor for the 
 debt, and in favor of creditors, where the sureties hold the 
 like securities as an indemnity. In the former case, the sure- 
 ties, on payment of the debt, are entitled to the securities ; ^ 
 in the latter, the creditor would seem entitled to a direct 
 remedy against the sureties to have the securities applied 
 to pay his debt. 
 
 § 282. Under particular circumstances, the receiving of 
 security from the maker before the maturity of the Note, less 
 than the amount of the liability of the indorser, may be 
 deemed a waiver of the right to require due presentment and 
 notice. As, for- example, if, before the maturity of the Note, 
 the indorser take an assignment of all the maker's property, 
 although inadequate to meet his indorsements, it will amount 
 to such a waiver.^ But an assignment made by the maker 
 
 ' Supra, n. (1). 
 
 ^ Story on Eq. Jurisp. § 499. 
 
 ' Bond V. Farnham, 5 Mass. 170, 172. On this occasion Mr. Chief Jus- 
 tice Parsons said : " The facts agreed are, that, on the date the Note was 
 payable, a demand in writing was left with a lad at a store formerly occu- 
 pied by the maker, but that at that time neither the store was in his occu- 
 pation, nor the lad in his service ; that the maker before that time had 
 stopped payment, was insolvent, and continues so to be, but that he had 
 not absconded ; that three days afterwards notice of the non-payment was 
 given to the defendant. Had the case stopped here, the defendant might 
 have had some reason to complain ; for, although a man has. stopped pay- 
 ment and is insolvent, yet he may have in his possession effects sufficient to 
 pay part of his debts, which a fortunate indorser on receiving seasonable 
 notice may secure. The case, however, states no damage as having been 
 incurred by the defendant from any neglect of demand or of notice. But 
 it states, that before this Note was payable, the maker had assigned all his 
 property to the defendant, for his security against his indorsements ; and 
 that the property was not in fact sufficient to meet his other indorsements, 
 exclusive of this Note. Upon these facts, we are satisfied that the'verdiot 
 is right, because, under the circumstances of this case, the defendant had 
 no right to insist on a demand upon the maker. It appears that he knew 
 such a demand must be fruitless, as he had secured all the property the 
 
CHAP. Vn.] EXCUSES FOR NON-PEESENTMENT. 853 
 
 to trustees, in trust for the benefit of his creditors, and 
 among them of the iudorser, will not amount to a waiver of 
 due demand and notice of the dishonor of the Note ; for 
 such a trust may well be deemed a mere indemnity against 
 his legal liabilities, which, being conditional, would become 
 absolute only by due demand and notice.^ We have already 
 
 maker had. And as he secured it for the express purpose of meeting this 
 and his other indorsements, he must be considered as having waived the 
 condition of his liability, and as having engaged with the maker, on receiv- 
 ing all his property, to take up his Notes. And the nature or terms of the 
 engagement cannot be varied by an eventual deficiency in the property ; 
 because he received all that there was. This intent of the parties is fur- 
 ther supported by the offer of the defendant to the plaintiffs to take up this 
 Note, if they would receive foreign bank-notes in payment. We do not 
 mean to be understoodj that, when an indorser receives security to meet 
 particular indorsements, it is to be concluded that he waives a demand or 
 notice as to any other indorsements. That, however, is not this case. But 
 we are of opinion, that, if he will apply to the maker, and, representing 
 himself liable for the payment of any particular indorsements, receives a 
 security to meet them, he shall not afterwards insist on a fruitless demand 
 ' upon the maker, or on a useless notice to himself, to avoid payment of de- 
 mands which on receiving security he has undertaken to pay." See ante, 
 § 205, and notes. 
 
 1 Creamer v. Perry, 17 Pick. 832, 334, 335. On this occasion Mr. Chief 
 Justice Shaw said : " On the first ground, we think, that the most which 
 could be made of the evidence is, that after this Note was made, but sever- 
 al months before it became due, the promisor made an assignment to trus- 
 tees, upon trust, among other things, to secure the defendant for all debts 
 due to him from the promisor, and to indemnify him against all his liabili- 
 ties. Without stopping to consider whether, after this property was sur- 
 rendered by the trustees, the defendant could have availed himself of it, 
 we think the effect of this assignment was to secure and indemnify the de- 
 fendant against his legal liabilities ; and as his liability as indorser on 
 this Note was conditional, and depended upon the contingency of his hav- 
 ing seasonable notice of its dishonor, his claim upon the property depended 
 upon the like contingency. The second assignment does not affect the 
 question ; it does not appear to have been made till several days after the 
 Note became due. And, on the other ground, it is a rule of law, that if an 
 iudorser, knowing that there has been no demand and notice, and convers- 
 ant with all the circumstances, will promise to pay the Note, this is to be 
 deemed a waiver. But these rules in regard to notice and waiver are to bfe 
 held with some strictness, in order to insure uniformity of practice and 
 23 
 
354 PROMISSORY NOTES. [CHAP. VII. 
 
 seen, that the taking of a security or indemnity by an'in- 
 dorser, after the Note has become due, under the impression 
 that he is legally bound to pay the same, will not bind him, 
 if there has not been a due presentment and notice of the 
 dishonor.^ 
 
 § 283. The French law contains similar provisions as to 
 receiving security. If the indorser has received on account, 
 or by way of set-off, or otherwise, funds suflBcient to pay 
 the Note, that will be a suificient excuse for any default of 
 due presentment of the Note for payment to the maker; 
 since it is apparent that he cannot have suffered any damage 
 thereby.^ But here, again, the exception is to be understood 
 as applicable only to the indorser, who has received such 
 funds, and not to other indorsers, who are not in that pre- 
 dicament.^ 
 
 § 284. In the next place, there is a relaxation of the strict 
 rule, as to the necessity of a due presentment of a Note by 
 the holder to the maker for payment at its maturity, where 
 the Note has been received as collateral security for another 
 debt due to the holder ; and the debtor, causing it to be 
 made or delivered to the holder, is no party, to the Note, or, 
 if a party to it, he has not indorsed it, and it is not transfer- 
 able by delivery.* In the former case, the delivery of the 
 
 regularity in their application. Though questions of due diligence and of 
 waiver were originally questions of fact, yet, having been reduced to a good 
 degree of certainty by mercantile usage, and a long course of judicial de- 
 cisions, they assume the character of questions of law, and it is highly im- 
 portant that they should be so deemed and applied, in order that rules 
 afifecting so extensive and important a department in the transactions of a 
 mercantile community may be certain, practical, and uniform, as well as 
 reasonable, equitable, and intelligible." Denney v. Palmer, 5 Ired. 610. 
 
 ' Ante, § 278 ; Richter v. Selin, 8 Serg. & Rawle, 425 ; Tower w. Durell, 
 9 Mass. 332 ; Kramer v. Sandford, 4 Watts & Serg. 328 ; Beveling v. Fer- 
 ris, 18 Ohio, 170; Holman v. Whiting, 19 Ala. 703. 
 
 ' Code de Comm. art. 171; Pardessus, Droit Comm. Tom. 2, art. 435 ; 
 Story on Bills, 374. 
 
 » Ibid. 
 
 • See Swinyard v. Bowes, 5 M. & S. 62; Chittyon Bills, eh. 10, pp. 467, 
 
CHAP. Vn.] EXCUSES FOE NON-PRESENTMENT. S55 
 
 Note must be treated as a mere pledge, and the debtor, not 
 being a party to the Note, is not entitled to strict present 
 ment or notice, as if it were an ordinary mercantile negotia- 
 tion, but merely to the exercise of such diligence on the part 
 of the holder as is required of a bailee for hire, or of a 
 pledgee. In the latter case, as the debtor does not indorse 
 the Note, he does not subject himself to the obligations of the 
 Law Merchant, and of course is not entitled to its advan- 
 tages.^ In order, therefore, to. entitle the debtor, as owner 
 
 474 (8th edit. 1833) ; Bayley on Bills, ch. 7, § 2, pp. 286-290 (5th edit.) ; 
 Story on Bills, § 372 ; Lawrence v. M'Calmont, 2 How. (U. S.) 427 ; Rhett v ■ 
 Foe, 2 How. (U. S.) 457. See Pardessus, Droit Comp. Tom. 2, art. 435. 
 
 ' Ibid. ; Van Wart v. WooUey, 3 B. & C. 439. In this case, a Bill of 
 Exchange had been sent to Van Wart, the agent of Irving & Co., to pay 
 for goods purchased by him for them. The Bill was drawn by Cranston & 
 Co. upon Greg & Lindsay, in London, and payable to the order of Van 
 Wart, the agent. It was notjndorsed by Van AVart ; but he employed his 
 bankers to present it for acceptance. The drawees refused to accept it ; 
 but the bankers did not give notice thereof to Van Wart until the day of 
 payment, when it was again presented and dishonored. Before the Bill 
 was presented for acceptance the drawers had become bankrupt. Van 
 Wart brought a suit against the bankers for negligence in not giving him 
 notice of the non-acceptance of the Bill. Lord Chief Justice Abbott, in 
 delivering the opinion of the Court, said : " Upon this state of facts, it is 
 evident, that the defendants (who cannot be distinguished from, but are 
 answerable for their London correspondents. Sir John Lubbock & Co.) 
 have been guilty of a neglect of the duty which they owed to the plaintiff, 
 their employer, and from whom they received a pecuniary reward for their 
 services. The plaintiff is^ therefore, entitled to maintain his action against 
 them, to the extent of any damage he may have sustained by their neglect. 
 He charges a damage in two respects : first, by the loss of remedy against 
 Irving, Smith, & Holly, from whom he received the Bill ; secondly, by the 
 loss of remedy against Cranston,'the drawer of the Bill. If, as between 
 the plaintiff and Irving & Co., he has made the Bill his own, and cannot 
 call upon them for the amount, his damage will be to the full amount for 
 which the verdict has been taken. If he still retains a remedy against 
 them, and has only been delayed in the pursuit of such remedy as he might 
 have had against the drawer, a bankrupt, the amount of his loss has not 
 been inquired into or ascertained, and is probably much less than the 
 amount of the BiU. We are of opinion, that the plaintiff has not, as 
 between him and Irving & Co., made the Bill his own ; that he might, not- 
 withstanding the want of notice of the non-acceptance, have recovered 
 
356 PROMISSORY NOTES. [CHAP. VII. 
 
 of the collateral secui'ity, to resist the payment of the debt, 
 he must establish that he has sustained damages by reason of 
 
 from them the amount of the Bill in an action for money paid ; or, if he had 
 notice of the dishonor, before he had bought and sent the good?, which 
 they had ordered him to buy, he might have returned the Bill, and have 
 abstained from ordering or buying the goods. It -will have been observed, 
 that Irving & Co. sejit the Bill to the plaintiflF without their indorsement, 
 and payable to his own order. The counsel for the plaintifl' was under the 
 necessity of arguing this case as if he were arguing for Irving & Co., in an 
 action brought against them by the plaintiff; and it was contended, that 
 Irving & Co. were entitled to notice of the non-acceptance in this case, as 
 they would have been by the Law Merchant in the case of a Bill indorsed 
 by them to the plaintiff. But no authority was cited that maintains this 
 proposition. And the case of Swiuyard v. Bowes is an authority the other ■ 
 way. If a person deliver a Bill to another without indorsing his own name 
 upon it, he does not subject himself to the obligations of the Law Mer- 
 chant ; he cannot be sued on the Bill, either by the person to whom he 
 delivers it or by any other. And,' as he does not subject himself to the 
 obligations, we think he is not entitled to the advantages. If the holder of 
 a Bill sell it without his own indorsement, he is, generally speaking, liable 
 to no action in respect of the Bill. If he deliver it without his indorsement, 
 upon any other consideration, antecedent or concomitant, the nature of the 
 transaction, and all circumstances regarding the Bill, must be inquired 
 into, in order to ascertain whether he is subject to any responsibility. If 
 the Bill be delivered, and received as an absolute discharge, he will not be 
 liable ; if otherwise, he may be. The mere fact of receiving such a Bill 
 does not show it was received in discharge. Bishop v. Howe, and Swin- 
 yard u. Bowes, before mentioned. Then what are the facts of this par- 
 ticular case ? Irving & Co., residing in America, had employed the plain- 
 tiff, residing at Birmiqgham, to purchase hardware for them in Eng- 
 land, by commission. By accepting this employment, he became, as be- 
 tween him and them, their agent. • They then send him the Bill in question 
 as a further remittance on account of their order for hardware. The 
 Bill is drawn upon persons residing in London ; the plaintiff, therefore, 
 could not have been expected to present the Bill himself; it must have 
 been understood, that he was to do this through the medium of some other 
 person. He employed for that purpose persons in the habit of transacting 
 such business for him and others, and upon whose punctuality he might rea- 
 sonably rely. In doing this, we think that he did all that was incumbent 
 upon him, as between him and Irving & Co. ; that he is personally in no 
 default as to them, and is not answerable to them for the default of the 
 persons whom he employed under such circumstances. In the course of 
 the argument, the situation of Irving & Co. was compared to that of a 
 guarantee. The decisions that have taken place in actions brought against 
 
CHAP. VIL] excuses FOR NON-I'EESENTMENT. 357 
 
 the want of due diligence and due presentment on the part 
 of the creditor, and to the extent of such damages he may 
 recover compensation or indemnity, or recoup the amount in 
 any suit for the debt.^ In cases of this sort, the same rule 
 has been applied as in cases of the guaranty Notes.^ 
 
 § 285. The French law here also applies the same broad 
 
 a guarantee warrant the proposition that has been before mentioned, viz. 
 that the natift-e of the transaction, and the circumstances of the particular 
 case, are to be copgidered and regarded. Thus, in Warrington v. Furbor, 
 ■where a commission of bankruptcy had issued against the acceptor be- 
 fore the Bill became due, a presentment for payment to him was held 
 unnecessary to charge the guarantee. Philips v. Astling stood upon differ- 
 ent grounds ; the Bill was not presented for payment when it became due, 
 as it ought to have been ; two days afterwards, notice that it remained unpaid 
 was given to the drawers, for whom the defendant was guarantee, but no 
 notice was then given to the defendant. The drawers and acceptor con- 
 tinued solvent for many months after the Bill was dishonored ; and it was 
 not until they had become bankrupts that payment was demanded of the 
 defendant. Under these circumstances, because the necessary steps were 
 not taken to obtain payment from the parties to the Bill, while they contin- 
 ued solvent, the Court of Common Pleas held the guarantee to be dis- 
 charged. In Holbrow v. Wilkins, the acceptors were known to be insolvent 
 before the Bill fell due ; and some days after that fact was known, the 
 plaintiffs wrote to the defendant, and desired him to accept a new Bill, 
 which he refused. The Bill was not presented for payment when due, nor 
 any notice of the non-payment given to the defendant. The Bill would 
 not have been paid if presented ; and it did not appear that the defendant 
 sustained any damage by reason of the want of presentment or notice ; and 
 this Court held the guarantee not to be discharged. These decisions show, 
 that cases of this kind depend upon the circumstances peculiar to each. 
 In the present case, it does not appear that Irving & Co. have sustained 
 any damage by the want of notice of the non-acceptance of the Bill. 
 Cranston, the drawer, was not entitled to such notice ; he had no right to 
 draw, and he sustained no prejudice. He had become bankrupt some 
 weeks before notice of the non-acceptance could have reached Irving & 
 Co. ; nothing appears to show that they have lost any remedy that they 
 might have had either against him or his estate, if they could ever have 
 had any ; but even this does not appear affirmatively, the circumstances 
 under which they received the Bill not being disclosed ; and possibly they 
 may have received it upon the terms of being accountable only in case it 
 should be accepted, and not otherwise.'' 
 
 ' Ibid. ; Story on Bills, § 372. 
 
 ' Ibid. 
 
358 PROMISSORY NOTES. [CHAP. VII. 
 
 principle which governs it in all cases of the want of due pre- 
 sentment and due notice of the dishonor. It does not, like 
 our law, positively exonerate the indorsers from all responsi- 
 bility in such cases ; ^ but only to the extent that they have 
 suffered, or may suffer, damage, or prejudice by the want of 
 such due presentment, or due notice.^ Indeed, this would 
 seem to be the general rule prevalent among the commercial 
 states of continental Europe. Casaregis lays it down as a 
 general rule, that where the due presentment or due notice 
 would be of no benefit to the drawer of a Bill (and the like 
 reason would seem to apply to the indorsers of a Note), there 
 the opission will not affect the rights of the holder against 
 him ; ^ and Baldasseroni adopts the same doctrine.* 
 
 § 286. We have thus far had under consideration most of 
 the cases which constitute, in point of law, valid excuses for 
 the want of a due presentment of a Note for payment at its 
 maturity. It may be proper in this connection to consider 
 what have been held not to be sufficient and valid excuses 
 
 ' See Bayley on Bills, ch.' 7, § 2, pp. 302, 303 (5th edit.). 
 
 ' Pothier, De Change, n. 156, 157; Pardessus, Droit Comm. Tom. 2, art. 
 435 ; Story on Bills, § 478, and note; Kemble v. Mills, 1 M. & G. 762, 
 note b. 
 
 ' Ibid.; Casareg. Disc, de Comm. '54, n. 38, 40, 42, 49. The language 
 of Casaregis is : " Propterea pro regula tradimus, quod ubi in facto appa- 
 reret nihil omnino fuisse profutura praedicta protesta, vel ob decoctionem 
 scribentis, vel solvere debentis literas, tunc omissio, vel negligentia in illis 
 elevandis, vel transmittendis nullatenus nocebit, quando enim diligentias 
 prodesse non possunt, impunb valent omitti per eum, qui illas facere tene- 
 batur. Sed in hoc casu ad omittentem diligentias omninb spectat probare, 
 quod diligentiiE non erant profuturse, nam sola possibilitas in contrarium 
 aut dubius eventus, an forent, vel non profutura, interpretandus, est contra 
 morosum, vel negligentem." 
 
 * Baldasseroni, De Camb. Pt. 2, art. 10, § 35. Baldasseroni says (p. 
 198) : " Qualora poi la negligenza del Portatore nel presentare la Lettera, 
 nel cavare il Protesto non porta alcun danno, o che quel danno, che 
 arriva alia Lettera, sarebbe derivato nonostante, e indipendentemente dalla 
 detta negligenza ; in tal caso il Portatore non fe tenuto alia refezione di 
 detto .danno, come quello, che non fe originato dal fatto suo." For this doc- 
 trine he relies, among other authorities, upon the passage above cited from 
 sis. 
 
CHAP. VII.] EXCUSES FOR NON-PEESENTMENT. 359 
 
 for such default. To some of these we have already incident- 
 ally alluded ; but it may be proper briefly again to allude to 
 them in this place.'^ In the first place (as we have seen),^ 
 it is by our law, as well as by the French law/ no excuse 
 that the maker is a bankrupt, or is insolvent, at the time 
 when the Note becomes due ; and this (as is asserted) for two 
 reasons : first, that it is a part of the implied obligations or 
 conditions of the contract of the indorser, that due present- 
 ment shall be made, in order to bind him to payment upon 
 the dishonor ; and secondly, that it is not certain, that, if due 
 presentment had been made, the Note, notwithstanding the 
 failure, might not have been paid, either by the maker, or by 
 sonie friends for him. Each of these reasons has been pro- 
 mulgated, not only in the Common-Law authorities,* but 
 
 ' Some of the cases cited under this head arose upon non-presentment of 
 the Note at its maturity, and some upon the want of due notice ; but they 
 depend upon similar principles, and are so treated by the text writers. 
 
 ^ Ante, §§ 203, 204, 241 ; Nicholson v. Gouthit, 2 H. Black. 609 ; Esdaile 
 V. Sowerby, 11 East, 114 ; 3 Kent, Lect. 44, p. 110 (5th edit.). 
 
 ' Pothier, De Change, u. 147; ante, §204; 3 Kent, Lect. 44, p. 110 
 (5th edit.) ; Pardessus, Droit Comm. Tom. 2, art. 424. 
 
 * Bayley on Bills, ch. 7, § 2, pp. 302, 303 (5th edit.) ; Nicholson v. 
 Gouthit, 2 H. Black. 609 ; Boultbee v. Stubbs, 18 Ves. 21 ; Chitty on Bills, 
 ch. 9, p. 386 (8th edit.); Id. ch. 10, pp. 469-473, 482, 483; Russell v. 
 Langstaffe, 2 Doug. 515 ; Story on Bills, § 375 ; Bond u. Farnham, 5 Mass. 
 170, 172; Crossen v. Hutchinson, 9 Mass. 205; Sandford v. Dillaway, 10 
 Mass. 52 ; Farnum v. Fowle, 12 Mass. 89 ; Granite Bank v. Ayres, 16 Pick. 
 392; Benedict u. Gaffe, 5 Duer, 225. On this subject, Mr. Chitty (pp. 
 482, 483, 8th edit.) says : " The death, known bankruptcy, or known in- 
 solvency, of the drawee, or acceptor, or maker of a Note, or his being in 
 prison, or the notorious stopping payment of a banker, constitutes no 
 excuse, either at law or in equity, or in bankruptcy, for the neglect to give 
 due notice of non-acceptance, or non-payment ; because many means may 
 remain of obtaining payment by the assistance of friends, or otherwise, of 
 which it is reasonable that the drawer and indorsers should have the oppor- 
 tunity of availing themselves ; and it is not competent to the holders to 
 show, that the delay in giving notice has not in fact been prejudicial. It 
 has been observed, that it sounds harsh, that the known bankruptcy of the 
 acceptor should not be deemed equivalent to a demand or notice;but the 
 rule is too strong to be dispensed with ; and a holder of a Bill has no righ^ 
 
860 PROMISSORY NOTES. [CHAP. VII. 
 
 by foreign jurists of high rqpute, such as Pothier and 
 Savary.i 
 
 § 287. In the next place, as has been already suggested, 
 equivocal acts, or conduct, or language, on the part of the 
 indorser, not intentionally or fraudulently designed to mis- 
 lead ; or knowledge on his part that the Note, if presented to 
 .the maker, will not be paid at th'e maturity of the Note, will 
 not constitute any excuse for the want of due presentment 
 thereof.^ The reason of the former part of the rule is, that 
 equivocal acts, or conduct, or language may not be intended 
 by the indorser to dispense with the ordinary requirements 
 of law as to presentment. The reason of the latter is, that 
 knowledge that the^ Note will not be paid is not the same as 
 notice that it has not been paid ; ^ and that due presentment 
 being a part of the implied obligations of the holder to entitle 
 him to charge the indorser, the la:tter has a right to insist 
 upon a strict fulfilment thereof ; and it is no proof that he 
 dispenses with it, merely to say, that it would be unavailing ; 
 for (as we have seen *) our law in this respect differs from 
 the law of continental Europe. Therefore, if the maker has, 
 at the time of giving the Note, or afterwards, before its ma- 
 turity, told the indorser, that he shall not be able to take it 
 
 to judge what may be the remedies over of a party liable on a Bill. It is no 
 excuse, that the chance of obtaining anything upon the remedy over was 
 hopeless, — that the person or persons against whom the remedy would 
 apply were insolvent or bankrupts, or had absconded. Parties are entitled 
 to have that chance offered to them ; and if they are abridged of it, the 
 law, which is founded upon the usage and custom of merchants, says they 
 are discharged." This is almost verbatim the very language of the authori- 
 ties ; and especially of Russell v. Langstaffe, 2 Doug. 515 ; Nicholson v. 
 Gouthit, 2 H. Black. 609, 612. 
 
 ' Pothier, De Change, n. 147 ; Savary, Parfait Negociant, Tom. 2, p. 360. 
 
 ° Miller v. Hackley, 5 John. 375; Griffin u. Goff, 12 John. 423; Lee 
 -Bank v. Spencer, 6 Met. 308. An agreement between holder and indorser, 
 that the maker will not pay the Note until fifteen days after maturity, does 
 not excuse presentment. Michaud v Loargarde, 4 Minn. 43. 
 
 » Gaunt V. Thompson, 7 M., G. & S. 400. 
 
 * Ante, § 272 ; Ghitty on Bills, ch. 9, p. 386 (8th edit.) ; Id. ch. 10, pp. 
 470-472. 
 
CHAP. VII.] EXCUSES FOR NON-PRESENTMENT. 361 
 
 up, or to pay at maturity, and that he, the indorser, must pay 
 it, will be no excuse for non-presentment by the holder.^ 
 Nor will it make any difference, that, at the same time, the 
 maker has given the indorser some money to make a part 
 payment thereof, when due ; for although the money so paid 
 may be recovered by the holder against the indorser, as 
 money had and received to his, the holder's use, pro tanto, in 
 discharge of the Note, yet as to the residue the holder will be 
 held exonerated.^ 
 
 § 288. It is upon the same ground, that, if a payee of a 
 Note lend his name and indorse it merely for the benefit of 
 the maker, and to give credit to the Note, he will still be en- 
 titled to have due presentment made of the Note at its ma- 
 turity, notwithstanding he knows, at the time of his indorse- 
 ment of the Note, that the maker is insolvent, and will not 
 _ be able to pay it ; for still, as upon payment of it, he would 
 be entitled to recover over against the maker, he has a right 
 to insist that all the prerequisites to charge him shall be 
 complied vnth, as he has not waived them.^ 
 
 § 289. So, it is no excuse for non-presentment bf a Note 
 in due season, that the indorser told the holder, on the day 
 when it became due, that he hoped it would be paid, and that 
 lie would see what he could do, and endeavor to provide 
 effects ; for in such a case the language is at most merely 
 
 ' Bayley on Bills, ch. 7, § 2, pp. 303 - 395 (5th edit.) ; Baker v. Birch, 
 3 Camp. 107 ; Staples v. Ofcines, 1 Esp. 332 ; Chitty on Bills, ch. 10, pp. 
 483, 484 (8th edit.) ; Id. p. 52,7. In Brett v. Levett, 13 East, 214, it was 
 held, that when the bankrupt drawer of a Bill, after his bankruptcy, and 
 before the maturity of the Bill, upon an inquiry from the holder whether it 
 would be paid or not, acknowledged that it would not, it dispensed with 
 due notice of the dishonor. But Mr. Chitty justly puts a quaere as to the 
 point. Chitty on Bills, ch. 10, p. 484 (8th edit.). 
 
 ^ Ibid. 
 
 ' Ante,% 268, 269; Chitty on Bills, ch. 10, pp. 471-473 (8th edit.); 
 Bayley on Bills, ch. 7, § 2, pp. 306 - 308 (5th edit.) ; Nicholson v. Gouthit, 
 2 H. Black. 609; Smith v. Becket, 13 East, 187; Brown v. Maffey, 15 
 East, 216 ; Lafitte v. Slatter, 6 Bing. 623 ; Warder v. Tucker, 7 Mass. 449 ; 
 Pierce v. Whitney, 29 Maine, 188 ; Ball v. Greaud, 14 La. An. 305. 
 
862 PROMISSORY NOTES. [CHAP. Vn. 
 
 equivocal, and cannot justify the holder in presuming that 
 the Note will be dishonored, or the presentment be dispensed 
 with.'- So if, upon an apprehension that the Note will not be 
 paid at the maturity, a prior indorser should lodge in the 
 hands of a subsequent indorser funds, conditionally to secure 
 the latter, if he should be obliged to pay the Note, but to be 
 returned if he should be exonerated, this would be no dis- 
 pensation with due presentment as to either indorser ; for 
 the last indorser would hold the funds upon a condition 
 which had not occurred, and the prior indorser would have 
 done nothing to dispense with the due presentment.^ Even 
 if the latter had in his hands funds of the maker at the time, 
 not appropriated to the payment of the Note, that would not 
 dispense with the due presentment ; because he would have 
 no right to make such appropriation, unless he was charge- 
 able with the payment of the Note.^ 
 
 § 290. It is no excuse for non-presentment of the Note, ' 
 that the holder has lost or mislaid it at its maturity, so that 
 he is unable to deliver it up, if required by the maker ; for 
 it does not follow that the maker might not be willing to pay 
 the holder upon a suitable indemnity ; or that, if payment 
 were refused, the indorser is to bear the inconvenience oc- 
 casioned by the fault or misfortune of the holder in losing 
 the Note, since it did not interpose any insuperable obstacle 
 to his making a demand for payment.* 
 
 § 291. So, it is no excuse for non-presentment of the Note 
 at its maturity, according to its terms or purport, that there 
 was a parol agreement between the maker and the payee, 
 who subsequently indorsed the same to the holder, that the 
 payment of the Note should not be demanded at its maturi- 
 ty, but at a future time, or upon a future event. The reason 
 
 ' Bayley on Bills, oh. 7, § 2, p. 305 (5tli edit.) ; Prideaux v. Collier, 2 
 Stark. 57. *■■ 
 
 ' Bayley on Bills, ch. 7, § 2, pp. 303, 304 (5tli edit.) ; Clegg v. Cotton, 8 
 Bos. & Pull. 239 ; Chitty on Bills, ch. 10, p. 482 (8th edit.). 
 
 » Ibid. 
 
 * Ante, §§ 106, 112, 244; Thaokray v. Blackett, 3 Camp. 164. 
 
CHAP. Vn.] EXCUSES FOE NON-PEESENTMENT. 363 
 
 commonly given is, that the parol evidence seeks to contra 
 diet the terms of the Note.^ But another reason may be 
 given, that is quite as decisive, and that is, that such an 
 agreement is one of which the holder has no right to avail 
 himself, since he is neither a party nor a privy thereto, and 
 could insist upon payment from the maker, according to the 
 terms of the Note.^ The doctrine, however, seems inapplica- 
 ble to a case where the holder takes the Note with a full 
 understanding of the original agreement, and it is expressly 
 adopted between. him and the indorser, when the transfer is 
 made, as a modification of their own contract by the indorse- 
 ment.^ 
 
 ^ 292. So, it is no excuse for non-presentmeut of the Note 
 
 ' Ante, § 147 and note ; Story on Bills, § 317 and note ; Pierce v. Whit- 
 ney, 29 Maine, 188. 
 
 ' Bayley on Bills, ch. 12, p. 492 (Sth edit.) ; Free v. Hawkins, 8 Taunt. 
 92 ; Chitty on Bills, ch. 10, p. 483 (Sth edit.). 
 
 » Ante, § 148 ; Story on Bills, § 317 and note ; Id. § 371. See Taunton 
 Bank v. Richardson, 5 Pick. 436 ; Union Bank v. Hyde, 6 Wheat. 572. 
 But see Free v. Hawkins, 8 Taunt. 92, which seems contra. The case of 
 Hoare v. Graham, 3 Camp. 57, seems at variance with the last suggestion 
 in the text. There the suit was by an indorsee against the payee of a 
 Note payable two months after date. Defence, that defendant refused to 
 indorse, unless plaintiff would agree that the Note should be renewed when 
 due, and that plaintiff acceded to that condition. Sed per Lord Ellen- 
 borough : " I cannot admit this evidence ; it is inconsistent with the written 
 instrument ; I will receive evidence that the Note was indorsed to plaintiff 
 as a trust ; there may, after a Bill is drawn, be a binding promise for a 
 valuable consideration to renew it ; but, if the promise be contemporaneous 
 with the drawing, the law will not enforce it; it would be incorporating 
 with a written contract an incongruous parol agreement." Verdict for 
 plaintiff. See also Bayley on Bills, ch. 12, p. 493 (5th edit.). Why was 
 not the contract between the indorser and indorsee a binding contract, 
 as it was a part of the consideration upon which the indorsement was made ? 
 Lord EUenborough seems to have confounded the case of an original agree- 
 ment between the maker and payee to renew the Note, with a new agree- 
 ment between the payee and the holder to allow the same to be renewed, 
 when the indorsement was made. The former might be said to contradict 
 the terms of the original Note. But how does it contradict the indorsement, 
 or the agreement upon the indorsement? See ante, § 147; Brown i/. 
 Langley, 4 M. & ft. 466 ; S. C. 5 Scott, N. K. 249. 
 
364 PROMISSORY NOTES. [CHAP. VII. 
 
 at its maturity, that the indorser has, in fact, no debt due 
 him from the maker, but the maker and the indorser are 
 both mere accommodation parties for the benefit of a subse- 
 quent indorser to the holder ; for, in such a case, the in- 
 dorser would, upon taking up the Bill, be entitled to recov- 
 er against the maker, and also against such subsequent in- 
 dorser.^ 
 
 § 293. So, the want of due presentment of the Itfote at its 
 maturity is not excused by an order of the indorser to the 
 maker not to pay the Note at its maturity if presented ; al- 
 though it would be a waiver of notice of the non-present- 
 ment.2 The reason for the difference, which is nice, and 
 perhaps not very satisfactory, seems to be, that the presents 
 ment by the holder is a part of his own contract, which is 
 not waived by the direction not to pay the Note, since it is 
 " res inter alios acta " ; but that the indorser necessarily 
 waives further notice of the dishonor,' which he has author- 
 ized and caused by his own act, and which may be deemed 
 equivalent to an appropriation of the money to himself 
 against the holder. 
 
 § 294. So, the fact, that the makers of a Note constitute 
 one firm, and the indorsers of the same Note another firm, in 
 each of which the same person is one of the partners, will 
 not constitute a sufficient excuse for non-presentment of the 
 Note at its maturity for payment. For although, in contem- 
 plation of law, all the partners are presumed to have knowl- 
 edge of all the facts which any one partner knows ; yet the 
 firm who are indorsers are not bound to pay unless due pre- 
 sentment is made to the other firm, since knowledge of non- 
 presentment is not notice of it, nor is it a waiver of the ob- 
 ligations of the holder to make the presentment.^ [So, where 
 
 1 Cory V. Scott, 3 B. & Aid. 619; Norton v. Pickering, 8 B. & C. 610; 
 Brown v. Maffey, 15 East, 216 ; ante, §§ 268, 269. 
 
 ' Hill V. Heap, Dowl. & Eyl. N. P. 57 ; Chitty on Bills, oh. 10, p. 484 
 (8tji edit.). 
 
 « Dwight V. Scovil, 2 Conn. 634; Story on Bills, § 376. But see Ste- 
 vens V. West, 1 Hdw. (Miss.) 308. 
 
CHAP. VII.] EXCUSES FOR NON-PEESENTMENT. 365 
 
 the indorser and the maker had been partners, and the Note 
 was given for a partnership debt, a demand must be made on 
 the maker to charge the indorser.^] 
 
 § 295. The reason of all these decisions turns upon one 
 and the same general principle. The Commercial Law hav- 
 ing required a due presentment for payment, and a due no- 
 tice of dishonor, these acts are to be deemed waived or dis- 
 pensed with only when, from the nature or the circumstances 
 of the case, both of them must be unnecessary or immateri- 
 al to the indorsers who may be affected thereby .^ Such a 
 presentment and such a notice are, therefore, to be treated 
 as conditions precedent to the liability of the indorsers be- 
 longing to tiie leading character of the contract ; and it is of 
 no consequence that the indorsers may not have been actu- 
 ally prejudiced thereby .^ Of course, nothing short of an ex- 
 press or implied agreement, or a waiver of such present- 
 ment and notice, ought to bind the indorsers ; and such an 
 agreement, or a waiver, bught never, in derogation of their 
 admitted rights, to be inferred from doubtful or equivocal 
 acts or circumstances, which are capable of different inter- 
 pretations.* 
 
 § 296. We have thus considered the principal excuses for 
 want of due presentment of Promissory Notes for payment 
 at their maturity, which are usually insisted on by the hold- 
 er in suits against the indorsers, and of which the validity or 
 invalidity seems proper to be considered in this place. The 
 subject, however, will again occur in another connection, 
 that of the want of due notice to the indorser of the dishon- 
 or of the Note, where other and additional illustrations will 
 naturally present themselves for observation and comment. 
 
 ' Morris v. Husson, 4 Sandf. 93. See also Foland v. Boyd, 23 Penn. St. 
 476. 
 
 " French's Ex. v. Bank of Columbia, 4 Cranch, 141 ; Caunt v. Thomp- 
 son, 7 M., G. & S. 400. 
 
 ' Baylcy on Bills, ch. 7, § 2, pp. 302, 303 (5th edit. 1830) ; Story on 
 Bills, § 377; Pierce v. Whitney, 29 Maine, 188. 
 
 * Story on Bills, § 377. 
 
366 PROMISSORY NOTES. [CHAP. VII. 
 
 Indeed, these excuses most generally occur in cases of want 
 of due notice ; and as, for the most part, the same princi- 
 ples apply to an^ govern each, we may well postpone the 
 further examination of the cases until we reach the head of 
 notice. 
 
CHAP. VIII.] PROCEEDINGS ON NON-PAYMENT. S67 
 
 CHAPTER VIII. 
 
 NOTICE AND OTHER PROCEEDINGS ON THE DISHONOR OF 
 PROMISSORY NOTES. 
 
 § 297. Let us now proceed, jn the next place, to the con- 
 sideration of the notice to be given, and the other proceed- 
 ings to be had by the holder, in cases of due presentment 
 and the dishonor of a Promissory Note. In cases of foreign 
 Bills of Exchange, it is ordinarily indispensable for the hold- 
 er, upon the dishonor of the Bill, either by non-acceptance or 
 non-payment thereof, to make due protest thereof before a 
 notary, or other public officer authorized to make the de- 
 mand and protest.^ This, also, is the rule generally pre- 
 scribed by the foreign law.^ But. in cases of Promissory 
 Notes, by the English and the American Commercial Law, 
 no protest is required to be made upon the dishonor thereof.^ 
 If there are any exceptions in America, they stand upon the 
 positive requirement of some statute, or of some general 
 usage equally obligatory.* The practice, however, prevails in 
 
 > Story on Bills, §§ 176, ^73-278; 3 Kent, Lect. 44, pp. 93-95 (5th 
 edit.) ; 2 Black. Com. 469, 470; Chitty on Bills, ch. 8, pp. 361-365, 874 
 (8th edit.) ; Id. pp. 489, 490 ; Bayley on Bills, ch. 7, § 2, pp. 258 - 266 
 (5th edit.). 
 
 ' Story on Bills, § 274 ; Solarte v. Palmer, 7 Bing. 530, 533. 
 
 ' Burke v. McKay, 2 How. (U. S.) 66 ; Young w. Bryan, 6 Wheat. 146 ; 
 Pinkham v. Macy, 9 Met. 174 ; Solarte v. Palmer, 7 Bing. 530, 533 ; Cod- 
 dington v. Davis, 1 Comst. 186 ; S. C. 3 Denio, 17 ; Smith v. Gibbs, 2 S. 
 & M. 479 ; Bonar v. Mitchell, 5 Excb. 415. 
 
 ' 3 Kent, Lect. 44, p. 94 (5th edit.) ; Bayley on Bills, ch. 7, § 2, p. 265 
 (5th edit.) ; Chitty on Bills, ch. 10, p. 501 (8th edit.); Young -w. Bryan, 
 6 Wheat. 146 ; Union Bank v. Hyde, 6 Wheat. 572 ; Nicholls v. Webb, 8 
 Wheat. 326 ; Bank of North America v. McKnight, 1 Yeg,tes, 145 ; Hub- 
 bard V. Troy, 2 Ired. 134 ; City Bank v. Cutter, 3 Pick. 414 ; Kahm v. The 
 
368 PROMISSORY NOTES. [CHAP. VIII. 
 
 several of our commercial cities, to have Promissory Notes 
 presented for payment by notaries public, and, if dishonored, 
 to have them protested.^ But this is not deemed to be a 
 practice which changes the general rule of law ; it is simply 
 an arrangement made for the convenience of the holder (and 
 principally when the Note is held by a bank), by which, in 
 effect, the notary is made a substituted agent for the holder .^ 
 [It has become so common, that the term " protest," though 
 strictly inapplicable to a Promissory Note, is understood to 
 mean, when used in a general sense among merchants, not 
 merely the act of the notary, but all the steps necessary to be 
 taken to charge an indorser, as demand and notice.^] In 
 many cases, the protest even of a Note by a notary may be 
 important to the holder in point of evidence, as, in case 
 of his death, it may be admissible to establish the fact of 
 
 Philadelpliia Bank, 1 Eawle, 335 ; Read v. Bank of Kentucky, 1 Mon. 91 ; 
 Whiting u. Walker, 2 [B. Mon. 262; Merritt v. Benton, 10 Wend. 116; 
 Kyd on Bills, ch. 7, p. 142 (3d edit.) ; Cunningham on Bills, § 7, pp. 40, 
 41 ; Thomson on Bills, ch. 6. § 2, pp. 442, 443 (2il edit.). 
 
 ^ Merritt v. Bentou, 10 Wend. 116 ; Bank of Utica v. Smith, 18 John. 
 230, 240 ; Burke v. McKay, 2 How. (U. S.) 66. ' 
 
 ' NiohoUs V. Webb, 8 Wheat. 326, 331. In this case the Court said: 
 " It does not appear, that, by the laws of Tennessee, a demand of the pay- 
 ment of Promissory Notes is required to be made by a notary-public, or a 
 protest made for non-payment, or notice given by a notary to the indorsers. 
 And, by the general Commercial Law, it is perfectly clear that the inter- 
 vention of a notary is unnecessary in these cases. The notarial protest is 
 not, therefore, evidence of itself, in chief, of the fact of demand, as it would 
 be in cases of foreign Bills of Exchange ; and, in strictness of law, it is not 
 an official act. But we all know, that, in point of fact, notaries are very 
 commonly employed in this business ; and in some of the States it is a gen- 
 eral usage so to protest all dishonored Notes which are lodged in, or have 
 been discounted by, the bank. The practice has, doubtless, grown up from 
 a sense of its convenience, and the just confidence placed in men, who, 
 from their habits and character, are likely to perform those important duties 
 with punctuality and accuracy. We may, therefore, safely take it to be 
 true in this case, that the protesting of Notes, if not strictly the duty of the 
 notary, was in conformity to general practice, and was an employment in 
 which he was usually engaged." 
 
 ' Coddington v. Davis, 3 Denio, 1 7 ; Seneca Co. Bank v. Neass, 5 Denio, 
 330. 
 
CHAP. VIII.] PROCEEDINGS ON NON-PAYMENT. 869 
 
 a due presentment to the maker, and due notice to the in- 
 dorser.i 
 
 ' NichoUs V. Webb, 8 Wheat. 326, 331. The question as to the admissi- 
 bility of the books of a notary, after his decease, to establish the fact that 
 he had made a due demand of the maker of the Note, and given due notice 
 to the indorser, was much considered, and decided in the affirmative in 
 this case. On this occasion the Court said : " If he (the notary) had been 
 alive at the trial, there is no question that the protest could not have been 
 given in evidence, except with his deposition, or personal examination to 
 support it. His death gives rise to the question, whether it is not, con- 
 nected <vith other evidence, and particularly with that of his daughter, 
 admissible secondary evidence for the purpose of conducing to prove due 
 demand and notice. The rules of evidence are of great importance, and 
 cannot be departed from without endangering private as well as public 
 rights. Courts of law are, therefore, extremely cautious in the introduction 
 of any new doctrines of evidence which trench upon old and established 
 principles. Still, however, it is obvious, that as the rules of evidence are 
 founded upon general interest and convenience, they must, from time to 
 time, admit of modifications to adapt them to the actual condition and busi- 
 ness of men, or they would work manifest injustice ; and Lord EUenborough 
 has very justly observed, that they must expand according to the exigencies 
 of society. Pritt v. Fairclough, 3 Camp. 305. The present case affords a 
 striking proof of the correctness of this remark. Much of the business of 
 the commercial world is done through the medium of Bills of Exchange 
 and Promissory Notes. The rules of law require that due notice and 
 demand should be proved . to charge the indorser. What would be the 
 consequence, if, in no instance, secondary evidence could be admitted, of a 
 nature like the present ? It would materially impair the negotiability and 
 circulation of these important facilities to commerce, since few persons 
 would be disposed to risk so much property upon the chance of a single 
 life ; and the attempt to multiply witnesses would be attended with serious 
 inconveniences and expenses. There is no doubt that, upon the principles 
 of law, protests of foreign Bills of Exchange are admissible evidence of a 
 demand upon the drawee ; and upon what foundation does this doctrine 
 rest, but upon the usage of merchants, and the universal convenience of 
 mankind ? There is not even the plea of absolute necessity to justify its 
 introduction, since it is equally evidence whether the notary be living or 
 dead. The law, indeed, places a confidence in public officers ; but it is here 
 extended to foreign officers acting as the agents and instruments of private 
 parties. The general objection to evidence of the character of that now 
 before the Court, is, that it is in the nature of hearsay, and that the party 
 is deprived of the benefit of cross-examination. That principle, also, ap- 
 plies to the case of foreign protests. But the answer is, that it is the best 
 24 
 
370 PROMISSORY NOTES. [CHAP. VIII. 
 
 § 298. By the French law, and, indeed, by the general law 
 of the commercial nations of continental Europe, and of 
 
 evidence the nature of the case admits of. If the party is dead we cannot 
 have his personal examination on oath ; and the question then arises, 
 whether there shall be a total failure of justice, or secondary evidence shall 
 be admitted to prove facts where ordinary prudence cannot guard us 
 against the effects of. human mortality ? Vast sums of money depend 
 upon the evidence of notaries and messengers of banks ; and if their mem- 
 orandums, in the ordinary discharge of their duty and employment, are not 
 admissible in evidence after their death, the mischiefs must be very exten- 
 sive. But how stand the authorities upon this subject ? Do they as inflex- 
 ibly lay down the general rule as the objection seems to imply ? The 
 written declarations of deceased persons, and entries in their books, have 
 been for a long time admitted as evidence, upon the general ground, that 
 they were made against the interest of the parties. Of this nature are the 
 entries made by receivers of money charging themselves, rentals of parties, 
 and bills of lading signed by masters of vessels. More than a century ago, 
 it was decided that the entries in the books of a tradesman, made by a de- 
 ceased shopman, were admissible as eviden'ce of the delivery of the goods, 
 and of other matters there stated within his own knowledge. So, in an ac- 
 tion on a tailor's bill, a shop book was allowed as evidence, it being proved 
 that the servant who wrote the book was dead, and that this was his hand, 
 and he was accustomed to make the entries. In the case of Higham v. 
 Ridgeway, 10 East, 109, it was held, that the entry of a midwife in his 
 books, in the ordinary course of his business, of the birth of a child, accom- 
 panied by another entry in his ledger of the charge for the service, and a 
 memorandum of payment at a subsequent date, was admissible evidence of 
 the time of the birth. It is true, that Lord EUenborough, in giving his 
 own opinion, laid stress upon the circumstance that the entry admitting 
 payment was to the prejudice of the party, and therefore like the case of 
 a receiver. But this seems very artificial reasoning, 'and could not apply 
 to the original entry in the day-book, which was made before payment ; 
 and even in the ledger the payment was alleged to have been made six 
 months after the service. So that, in truth, at the time of the entry, it was 
 not against the party's interest. And Mr. Justice Le Blanc, in the same 
 case, after observing that he did not mean to give any opinion as to the 
 mere declarations or entries of a midwife, who is dead, respecting the time 
 of a person's birth, being made in a matter peculiarly within the knowledge 
 of such a person, as it was not necessary then to determine that' question, 
 significantly said : ' I would not be bound at present to say that they are 
 not evidence.' In the recent case of Hagedon v. Reid, 3 Camp. 377, in a 
 suit on a policy of insurance, where a license was necessary, the original 
 not being found, it was proved that it was the invariable practice of the 
 plaintiff's oflice (he being a policy broker), that the clerk, who copies any 
 
CHAP. VIII.] PROCEEDINGS ON NON-PAYMENT. 371 
 
 Scotland, no distinction is in this respect made between for- 
 eign Bills of Exchange and Promissory Notes. In each case, 
 
 license, sends it off by post, and makes a memorandum on the copy of Kis 
 having done so ; and a copy of the license in question was produced from 
 the plaintiff's letter-book, in the handwriting of a deceased clerk, with a 
 memorandum on it, stating that the original was sent to Dorman ; and a 
 witness, acquainted with the plaintiff's mode of transacting business, swore, 
 that he had no doubt the original was sent according to the statement in 
 the memorandum. Lord EUenborough held this to be sufficient evidence 
 of the license. And in Pritt v. Fairclough, 3 Camp. 305, the same 
 learned judge held, that the entry of a copy of a letter in the letter-book 
 of a party, made by a deceased clerk, and sent to the other party, was ad- 
 missible in evidence, the letter-book being punctually kept, to prove the 
 contents of the letter so sent. And he observed, on that occasion, that if 
 it were not so, there would be no way in which the most careful merchant 
 could prove the contents of a letter after the death of his entering clerk. 
 The case of Welsh v. Barrett, which has been cited at the bar from the 
 Mass. Reports, is still more directly in point. It was there held, that the 
 memorandums of a messenger of a bank, made in the usual course of his 
 employment, of demands on promisors, and notices to iudorsers, in respect 
 to Notes left for collection in the bank, were, after his decease, admissible 
 evidence to establish such demands and notices. And the learned chief 
 justice of the Court, on that occasion, went into an examination of the 
 grounds of the doctrine, and put the very case of a notarial demand and 
 protest of Notes, which had been suggested at the bar as a more correct 
 course, as not distinguishable in principle, and liable to the same objections 
 as the evidence then before the Court. We are entirely satisfied with that 
 decision, and think it is founded in good sense and public convenience. 
 We think it a safe principle, Ihat memorandums made by a person in 
 the ordinary course of his business, of acts or matters which his duty in 
 such business requires him to do for others, in case of his death, are admis- 
 sible evidence of the acts and matters so done. It is of course liable to be 
 impugned by other evidence ; and to be encountered by any presumptions 
 or facts which diminish its credibility or certainty. A fortiori we think the 
 acts of a public officer, like a notary-public, admissible, although they may 
 not be strictly official, if they are according to the customary business of 
 his office, since he acts as a sworn officer, and is clothed with public au- 
 thority and confidence." [See also Barnard v. Planters' Bank, 4 How. 
 (Miss.) 98 ; Ogden v. Glidewell, 5 Ibid. 179 ; White v. Englehard, 2 S. & 
 M. 38. It has been decided in New Hampshire, that, where the indorser of 
 a Note lives in one State and the maker in another, the operation of the 
 indorsement is so far similar to the drawing of a Bill of Exchange, that, in 
 an action against the indorser, the dishonor of it may be proved by a pro- 
 test. Williams v. Putnam, 14 N. H. 540. See also Seneca Co. Bank v. 
 
372 PROMISSORY NOTES. [OHAP. VIII. 
 
 a protest for the dishonor, in cases of non-payment on pre- 
 sentment thereof, is equally required, and is equally indis- 
 pensable.^ 
 
 § 299. In every case of the dishonor of a Promissory 
 Note, it is the duty of the holder to give due notice thereof 
 to all the prior parties on the Note, who are liable to make 
 payment to him, and to whom he means to look for payment. 
 [And this is equally true if the Note is payable on demand.^] 
 If he fails to give notice to any of the prior parties so liable, 
 then all are discharged from liability to him, and the want 
 of such notice is fatal to his entire claim against them.^ If 
 he gives due notice to one of the prior parties, and not to the 
 others, then the latter are in law discharged, although the 
 former may be held to payment. Such is the general rule ; 
 but there are certain exceptions to its operation, which will 
 presently come under our consideration. 
 
 Neass, 5 Denio, 329.] In New Hampshire, Maine, Maryland, Minnesota, 
 Pennsylvania, Kentucky, Ohio, Alabama, Mississippi, California, Iowa, 
 Wisconsin, and perhaps in some other States, a notary's certificate of de- 
 mand and notice upon a Promissory Note as well as a Bill of Exchange is 
 prima facie evidence of the facts stated in it. Loud v. Merrill, 45 Maine, 
 516 ; Orono Bank v. Wood, 49 Maine, 16 ; Ricketts v. Pendelton, 14 Md. 
 320 ; Bowling v. Arthur, 34 Miss. (5 George) 41 ; Carruth v. Walker, 8 
 Wis. 252 ; Kern v. "Von Phul, 7 Min. 426 ; Adams v. Wright, 14 Wis. 408 ; 
 Kushworth v. Moore, 36 N. H. 188 ; McFadand v. Pico, 8 Cal. 626 ; Sharer 
 V. Easton Bank, 33 Penn. St. 184 ; Simpsprt v. White, 40 N. H. 540 ; Gil- 
 lespie V. Neville, 14 Cal. 408 ; Duckert v. Von Lilienthal, 11 Wis. 56. If 
 the notary's certificate recites an insufficient demand or notice, it is not 
 competent evidence. Farmers' Bank v. Allen, 18 Md. 475 ; Sather v. 
 Rogers, 10 lo. 231 ; Thorp v. Craig, lb. 461. 
 
 1 Code de Comm. art. 175, 187 ; Pothier, De Change, n. 133, 220 ; Jousse, 
 Sur L'Ord. 1673, tit. 5, art. 32, p. 131 (edit. 1802); Pardessus, Droit 
 Comm. Tom. 2, art. 479, 480 ; Thomson on Bills, ch. 6, § 2, pp. 442, 443 
 (2d edit.). See Baldasseroni, Del Cambio, Pt. 2, art. 8, §§ 1 - 3, 28 - 50 ; 
 Heinecc. de Camb. cap. 6, § 4 ; Story on Bills, §§ 274, 379. 
 
 ^ Lockwood ?;. Crawford, 18 Conn. 361. 
 
 » Bayley on Bills, ch. 7, § 1, p. 217 (5th edit.). The holder is required 
 to give notice only to the indorser whom he desires to charge, and each in- 
 dorser must see for himself that prior indorsers are duly fixed, if he would 
 have his remedy over against them. Spencer v. Ballon, 18 N. Y. 327. 
 
CitAP. VIII.] PROCEEDINGS ON NON-PAYMENT. 373 
 
 § 300. Let us, then, in the first place, enter upon the con- 
 sideration of the various doctrines applicable to the subject 
 of notice in its general relations ; and afterwards we shall 
 be at liberty to examine the exceptions to these doctrines. 
 The subject may be conveniently distributed into the follow- 
 ing heads : (1.) First, By whom notice is to be given ; (2.) 
 Secondly, To whom notice is to be given ; (8.) Thirdly, At 
 what place, and within what time, it is to be given; (4.) 
 Fourthly, In what mode or manner ; (5.) Fifthly, The form 
 of the notice ; and when it is good or not. 
 
 § 801. In the first place, then, by whom is notice to be 
 given of the dishonor of a Promissory Note ? The general 
 rule is, that it is to be given by the holder, or by some agent 
 or other person duly authorized by him,^ or, at all events, by 
 some person who is himself liable to pay the Note, and is a 
 party thereto. [And if the Bill be in fact dishonored, it is 
 not material that the party giving such notice had not at the 
 time absolute knowledge of the dishonor.^] The reason is 
 not merely that the indorser may immediately call upon those 
 who are liable to him for indemnity, but that he may know 
 that the holder means to stand upon his legal rights and re- 
 sort to him for payment.^ If notice be given by a third per- 
 son, or by a mere stranger not so authorized, it amounts to a 
 mere nullity ; for knowledge of the dishonor by the indorser 
 is not notice to him that the holder intends to hold him lia- 
 ble to pay the same, since it is quite competent for the hold- 
 er to waive his rights ; and a third person, or stranger, can- 
 not, by his officious intermeddling, establish any rights of the 
 holder, or defeat any discharge or defence of the indorser.* 
 
 ' CMtty on Bills, ch. 10, pp. 525-532 (8th edit.); Bayley on Bills, 
 ch. 7, § 2, p. 254 (5th edit.) ; Story dn Bills, §§ 303, 304. 
 
 ' Jennings v. Roberts, 29 Eng. Law & Eq. 118. 
 
 ' Chitty on Bills, ch. 8, p. 368 (8th edit.) ; Id. ch. 10, p. 501 ; per Bul- 
 ler, J., in Tindal v. Brown, 1 Term, 170. 
 
 ' Ibid. ; Ex parte Barclay, 7 Ves. 597, 598 ; Stewart v. Kennett, 2 Camp. 
 177; Bayley on Bills, ch. 7, § 2, p. 254 (5th edit.) ; Chitty on Bills, ch. 10, 
 pp. 526, 527 (8th edit.) ; Chanoine v. Eowler, 3 Wend. 173 ; Story on Bills, 
 
374 PKOMISSOKT NOTES. [CHAP. Vin. 
 
 Nor would a subsequent adoption of the notice of a stranger 
 by the holder vary the result ; for it is not a case to which the 
 
 § 303, n. ; 3 Kent, Lect. 44, p. 108 (5th edit.) ; Thomson on Bills, ch. 6, 
 § 4, ppr 494 - 496 (2d edit.), says : " By what party notice must be given, to 
 preserve the holder's recourse against the party receiving it, has been much 
 discussed, and is not yet satisfactorily settled. The chief purpose of this 
 notice is, that the party receiving it may secure his relief from the parties 
 liable to him against the claim made upon him under the Bill or Note ; and 
 therefore such notice, if it does not state, must at least afford him reason to 
 believe, that a claim will be made against him. But his belief of this must 
 depend much on the party from whom the notice proceeds. His mere 
 knowledge that the Bill or Note has not been accepted or paid, affords no 
 ground for such a belief; because it does not thence follow that the holder 
 will resort to him for payment. Information, therefore, of non-acceptance 
 or non-payment, by a stranger, who has no concern with the Bill or Note, 
 and does not act for any party to it, is not equivalent to notice, as it 
 amounts to no more than the casual knowledge now mentioned. In 
 one case, indeed, in Scotland, private knowledge seems to have been • 
 admitted, at least as an element of notice. But in that case, ' there 
 was that sort of intercourse among the parties which left it to be in- 
 ferred that the indorser was aware not merely of the dishonor, but of the 
 holder looking tp him for payment ; particularly, there was a meeting of 
 the parties, at which the acceptor made a partial payment.' This last cir- 
 cumstance showed that the holder was in cursu of enforcing payment from 
 the acceptor ; and, as the defender seems to have been a party to this pay- 
 ment, he must, from it, as from other circumstances, have been convinced 
 that he would be called on for payment, failing the acceptor. Supposing, 
 therefore, that this case were a fit precedent, which has been doubted, it 
 cannot impeach the rule, that information by a stranger, or, in other words, 
 mere casual knowledge, is not equivalent to notice. But if the drawer or 
 indorser gets information, whether from the holder or not, which certiorates 
 him that the latter intends to claim recourse from him, the purpose of no- 
 tice, namely, to enable him to take measures for his security, is answered. 
 This is the only principle which appears capable of supporting the decision 
 last cited. The same doctrine may perhaps have been in view in another 
 case, where evidence was admitted to prove that the drawer had expressed 
 his belief to the holder that the Bill would be returned unpaid ; but such 
 an expression of belief, before the Bill was due, would not probably be held 
 equivalent to a subsequent certainty, either that the Bill was not paid, or 
 that the holder claimed recourse. It has been held at Nisi Prius, to be 
 proof of the drawer having got notice, that he intimated to the holder that 
 he would defend any action on the Bill, as he had been defrauded, but did 
 not then allege want of notice." 
 
CHAP. VIII.] PROCEEDINGS ON NON-PAYMENT. 375 
 
 doctrine has been applied, that a subsequent ratification is 
 equivalent to an original authority, and, by relation, goes to 
 the establishment of the act done ab initio, upon the footing 
 of the maxim, " Omnis ratihabitio retrotrahitur, et mandato 
 priori aequiparatur." 
 
 § 302. But a person who is a party to the Note is not 
 ordinarily to be treated as a mere stranger, in the sense of 
 the rule. If he be a party to the Note, and, at all events, if 
 he be at the time entitled to call for payment, or for reim- 
 bursement,^ notice from him will now be held sufficient, al- 
 though formerly it seems to have been otherwise held.^ 
 
 •" Bayley on Bills, ch. 7, § 2, p. 254 (5tli edit.). 
 
 ^ Chitty on Bills, ch. 10, pp. 525-527 (Sth edit); 3 Kent, Lect. 44, 
 p. 108 (5th edit.) ; Thomson on Bills, ch. 6, § 4, pp. 496, 497 (2d edit.) ; 
 Story on Bills, §§ 294, 30.3, 304 ; Ex parte Barclay, 7 Ves. 597. In Tindal 
 V. Brown, 1 Term, 167, 170, Mr. Justice BuUer said: "With respect to 
 notice, I concur in the opinion which has been given by the Court, and par- 
 ticularly for the reason given by my brother Ashhurst. The purpose of 
 giving notice is not merely that the indorser should know that the Note is 
 not paid, for he is chargeable only in a secondary degree ; but to render 
 him liable you must show that the holder looked to him for payment, and 
 gave him notice that he did so. A case might easily be put, where the 
 indorser might have notice from the holder, and yet would not be liable ; 
 as if, in the present case, the holder had written a letter to the indorser, 
 containing the circumstances which have been given in evidence, the in- 
 dorser would have been discharged ; because it would have amounted only 
 to this : ' The Note made by Donaldson and indorsed by you, is not paid, 
 and I have given credit to Donaldson till to-morrow.' Though there is no 
 prescribed form of this kind of notice, yet it must import that the holder 
 considers the indorser as liable, and expects payment from him, that he 
 may have his remedy over by an early application ; then it becomes his 
 business to take up the Note. But notice of having given credit to the 
 maker will discharge the indorser. The notice by another person to the 
 indorser can never be sufficient ; but it must proceed from the holder him- 
 self." In Ex parte Barclay, 7 Ves. 597, 598, where the point arose, Lord 
 Eldpn said : " The settled doctrine is according to the language of Mr. Jus- 
 tice BuUer in Tindal v. Brown ; and there is great reason in it ; for the 
 ground of discharging the drawer is, that the holder gives credit to some 
 person liable as between himself and the drawer. Notice from any other 
 person, that the Bill is not paid, is not notice that the holder does not give 
 credit to a third person. The doctrine has been acted upon very often 
 since." The contrary doctrine was held in Jameson v. Swinton, 2 Camp. 
 
376 PEOMISSOKY NOTES. [CHAP. VHI. 
 
 Hence, a notice from the holder, or any other party, will 
 Inure to the benefit of every other party who stands between 
 
 373, and Wilson v. Swabey, 1 Stark. 34. In Chapman v. Keane, 3 A. & 
 El. 193, 196, 197, Lord Denman, in delivering the opinion of the Court, 
 said : " On the trial of this action by the indorsee against the drawer of a 
 Bill of Exchange, the Lord Chief Justice of the Common Pleas directed a 
 nonsuit, for want of due notice of dishonor. The Bill had been indorsed 
 by the plaintiff, by the desire of Wiltshire, who had discounted it, and left 
 it in the hands of the plaintiff's clerk, with instructions to obtain payment, 
 or give notice of dishonor. He did give notice to the defendant, but in the 
 name of the plaintiff, not in that of Wiltshire, the then holder, who had 
 deposited the Bill with him. The objection to the plaintiff's recovery was 
 founded on the case of Tindal v. Brown, in which all the judges of this 
 Court, except Lord Mansfield, considered a notice given by one who was 
 not the holder as no notice, on the ground that the drawer was not thereby 
 apprised of the holder's intention to look to him for payment ; and this case 
 was distinctly recognized, and its principle adopted, by Lord Eldon, in Ex 
 parte Barclay. Notwithstanding these high authorities, it is clear, from 
 Jameson v. Swinton, Wilson v. Swabey, and also from the learned treatises 
 on Bills of Exchange, that the contrary doctrine has prevailed in the pro- 
 fession, and we must presume a contrary practice in the commercial world. 
 It is universally considered, that the party entitled as holder to sue upon 
 the Bill, may avail himself of notice' given in due time by any party to it. 
 In the Nisi Prius cases just referred to, no express allusion was made to 
 Tindal v. Brown, or Ex parte Barclay, but we can hardly conceive that 
 they were not present to the recollection of Lord Ellenborough and Mr. 
 Justice Lawrence, or the counsel engaged. These learned judges, indeed, 
 decided them at Nisi Prius, but without question. We are now compelled 
 to determine, whether the case of Tindal v. Brown, as to this point, be good 
 law. We think that it is not. If it were, the holder might secure his own 
 right against his immediate indorser by regular notice ; but the latter, and 
 every other party to the Bill, would be deprived of all remedy against an- 
 terior indorsers and the drawer, unless each of those parties should in suc- 
 cession take up the Bill immediately on receiving notice of dishonor, a 
 supposition which cannot be reasonably made. We may add, that this 
 point was not necessary for the decision of the ease, as this Court, including 
 Lord Mansfield, granted a new trial on a different ground." And see Rowe 
 u. Tipper, 20 Eng. Law & Eq. 222. It does not appear that in any of 
 these cases the question directly arose, whether notice, given by an indorser 
 on the Bill, who had no notice himself from any one, which could make 
 him liable to the holder thereon, to any antecedent party on the Note, 
 would be sufBcient notice to bind the latter, so that the holder might re- 
 cover against him, although he had not himself given him any notice what- 
 soever. Mr. Bayley (as we shall immediately see) lays down the doctrine 
 
CHAP. Via] PROCEEDINGS ON NON-PAYMENT. 377 
 
 the person giving the notice and the person to whom it is 
 given. 1 Therefore, a notice from the last indorsee to the first 
 
 in very guarded terms. " The notice must come from the holder, or from 
 some party entitled to call for payment, or reimbursement." Bayley on 
 Bills, ch. 7, § 2, pp. 254 - 256. Mr. Thomson (on Bills, eh. 6, § 4, pp. 496, 
 497, 2d edit.) seems to consider the law to be now settled, that notice from 
 any party on the Note will inure for the benefit of the holder and all 
 other parties, without any distinction, whether the party is himself bound 
 to pay the Note or not. His language is : " The English Courts seem to 
 have at first too much narrowed the limits of notice. lu one case, opinions 
 are expressed, that notice ought to be given in all cases by the holder. 
 But the only point as to notice then before the Court was, whether a re- 
 quest by the grantor of a Note to the defendant, to take it up, was equiva- 
 lent to notice by the holder ; and the Court may probably have been thus 
 led to lay it down, that, in that case, notice could proceed only from the 
 holder, without adverting to the other question of the validity of notice 
 by an indorser. The case was decided on another ground. But the opin- 
 ion now referred to was followed afterwards by an eminent authority, who, 
 after citing the opinion of Mr. Justice BuUer, as importing that effectual 
 notice could only come from the holder, and stating that it had been 
 frequently acted on since, decided, on that ground, that notice by the 
 indorser of a Bill could not be available to the holder. But this doctrine 
 seems not to be consistent with the principles which have been since estab- 
 lished. 1st. It appears to be settled, that notice by an indorser to the 
 drawer, or a prior indorser of a Bill or Note, will inure to the benefit of 
 any intervening party. No intervenitig party can have a claim against the 
 drawer or prior indorser, without paying to the party who gave notice ; 
 and, by doing so, he acquires all his rights, and among others, the benefit 
 of the notice given by him. As it may not be certain, however, whether 
 the holder has given notice to all the prior parties, it is prudent in any 
 indorser from whom payment is demanded, to give notice, as soon as he gets 
 it, to all the previous parties, in order to secure his recourse against them. 
 For, if he has got notice, it will not afford him any defence that the holder 
 has not given notice to the previous parties, from whom he hinlself is enti- 
 tled to claim recourse. 2d. Although the holder of a Bill or Note should 
 give notice only to his immediate indorser, he may avail himself of notice 
 to any prior party, whether it proceeds from his indorser, or from some 
 earlier indorser to whom the latter has given notice. This rule is conform- 
 able with the purpose of giving notice, as the party receiving it is put 
 
 ' Bayley on Bills, ch. 7, § 2, pp. 255, 256 (5th edit.) ; Wilson v. Swabey, 
 1 Stark. 34 ; Chitty on Bills, ch. 10, p. 527 (8th. edit.) ; Story on Bills, 
 §§ 303, 304, 382 (8th edit): Chapman v. Keane, 3 A. & El. 193 ; Roger- 
 son V. Hare, 1 W. W. & D. 65 ; S. C, 1 Jur. 71. 
 
378 PROMISSORY NOTES. [CHAP. VIH. 
 
 indorser will operate as a notice from each of the intermedi- 
 ate indorsers.^ So, if the holder, or any other party, give no 
 notice but to the person who is his immediate indorser on the 
 Note, yet, if notice be communicated by the latter, without 
 laches, to the prior parties, the holder may avail himself of 
 such communication of notice, and sue any such prior par- 
 ties ; for it is not, under such circumstances, necessary that 
 the notice should come immediately from the holder, since it 
 does come from one who is liable to pay the Note, and is 
 entitled to reimbursement from such prior parties. ^ Under 
 
 sufBeiently on his guard, if it comes from any person who has a right to 
 exact, and intends to exact, payment ; and that, whether payment is ex- 
 acted by that party under his right of recourse, or by the holder. Accord- 
 ingly, it has been decided in two cases, where actions were brought by the 
 last indorsee against the drawer, that notice to a drawer or indorser by the 
 plaintiflTs indorser was available to the plaintiff, being held sufficient to ' serve 
 all the purposes for which notice is required,' seeing the drawer or indorser 
 was thus enabled ' to take it up if he pleases ; and he may immediately pro- 
 ceed against the acceptor or prior indorsers.' In a later case, it was decided 
 by the Court of King's Bench, on a review of all previous decisions, that 
 the holder of a Bill may avail himself of notice given by any person who 
 is a party to it. The law may, therefore, be now considered as settled." 
 
 ' Ibid. Notice by the holder inures to the benefit of all parties, but an 
 excuse for an omission of notice does not aid parties who are without ex- 
 cuse. Beale v. Parrish, 20 N. Y. 407. 
 
 ' Bayley on Bills, ch. 7, § 2, p. 256 (5th edit.) ; Stafford v. Yates, 18 
 John. 327. Mr. Bayley (ch. 7, § 2, pp. 244-246) has very succinctly 
 stated the doctrine in these words : " The notice must come from the 
 holder, or from some party entitled to call for payment or reimbursement. 
 It has indeed been held, that notice from the acceptor to the drawer, that 
 he had not been able to pay it, and that it was then in plaintiff's hands, was 
 sufficient ; but that might, perhaps, have been on the ground that the ac- 
 ceptor wrote for the plaintiff, and as his agent. A notice from the holder 
 or any other party will inure to the benefit of every other party who 
 stands between the person giving the notice and the person to whom it is 
 given. Therefore, a notice from the last indorsee to the drawer will oper- 
 ate as a notice from each indorser. It is, nevertheless, prudent in each 
 party, who receives a notice, to give immediate notice to those parties 
 against whom he may have right to claim ; for the holder may have omitted 
 notice to some of them, and that will be no protection ; or there may be 
 difficulties in proving such notice. Though a holder, or any other party, 
 give no notice but to the person of whom he took the Bill, yet, if notice be 
 
CHAP. VIII.] PEOCEEDINGS ON NON-PAYMENT. 379 
 
 such circumstances the rule is applicable, that he who is ul- 
 timately bound to pay the money, as a first indorser, may 
 be made directly and immediately liable to pay it to a re- 
 mote indorsee ; since he would be circuitously compellable to 
 pay it.i 
 
 communicated without laches to the prior parties, he may avail himself of 
 such communication, and sue any of such prior parties; it is no objec- 
 tion, in such case, that there was no notice immediately from the plaintiff 
 to the defendant." 
 
 • Riddle v. Mandeville, 5 Cranch, 322. ■ A remote indorsee cannot, 
 according to the local law of Virginia, maintain a suit at law against a 
 remote indorser, on the dishonor of a Promissory Note. And the question 
 in this case was, whether he might in equity maintain such a suit. The 
 Court held that he might. Mr. Chief Justice Marshall, in delivering the 
 opinion of the Court, after adverting to the fact that each indorsee might 
 maintain a suit at law against his immediate indorser, and the latter against 
 his immediate indorser, and so, successively, up to the first indorser, pro- 
 ceeded to say : " If there were twenty successive iudorsers of a Note, this 
 circuitous course might be pursued, and, by the time the ultimate indorser 
 was reached, the value of the Note would be expended in the pursuit. 
 This circumstance alone would afford a strong reason for enabling the 
 holder to bring all the indorsers into that Court which could, in a single 
 decree, put an end to litigation. No principle adverse to such a proceed- 
 ing is perceived. Its analogy to the familiar case of a suit in chancery, by 
 a creditor against the legatees of his debtor, is not very remote. If an 
 
 executor shall have distributed the estate of his testator, the creditor has an 
 
 « 
 
 action at law against him, and he has his remedy against the legatees. The 
 creditor has no action at law against the legatees. Yet it has never been un- 
 derstood, that the creditor is compelled to resort to his legal remedy. He 
 may bring the executor and legatees both before a Court of Chancery, which 
 Court will decree immediate payment from those who are ultimately bound. 
 If the executor and his securities should be insolvent, so that a suit at law 
 must be unproductive, the creditor would have no other remedy than in 
 equity, and his right to the aid of that Court could not be questioned. If 
 doubts of his right to sue in chancery could be entertained while the 
 executor was solvent, none can exist after he had become insolvent. Yet 
 the creditor would have no legal claim on the legatees, and could maintain 
 no action at law against them. The right of the executor, however, may, 
 in a Court of Equity ,'be asserted by the creditor, and, as the legatees would 
 be ultimately responsible for his debt, equity will make them immediately 
 responsible. In the present case, as in that which has been stated, the in- 
 solvency of M'Clenachan furnishes strong additional motives for coming into 
 a Court of Chancery. Mandeville and Jameson are ultimately bound for 
 
38() PROMISSORY NOTES. [CHAP. Vni; 
 
 § 303. Prom the general language used in some of the 
 authorities, and in some of the text-books, it might seem, 
 that notice from any party to the Note, whether he was lia- 
 ble to pay the same, or entitled to reimbursement, or not, 
 would be sufficient to bind the party to whom notice ought 
 to be given.^ But perhaps this doctrine is too broadly ex- 
 pressed, and it is certainly limited by Mr. J. Bayley to cases 
 where the party giving the notice is himself liable to pay the 
 same, and is entitled to reimbursement on payment.^ Sup- 
 pose, for example, a second indorser should give notice to a 
 
 tWs money, but the remedy at law is defeated by the bankruptcy of an in- 
 termediate indorser. It is only a Court of Equity which can aflbrd a 
 remedy. This subject may and ought to be contemplated in still another 
 point of view. It has been repeatedly observed, that the action against 
 the indorser is not given by statute. The contract on which the suit is 
 maintained is not expressed, but is implied from the indorsement itself, 
 unexplained and unaccompanied by any additional testimony. Such a 
 contract must, of necessity, conform to the general understanding of the 
 transaction. General opinion certainly attaches credit to a Note, the 
 maker of which is doubtful, in proportion to the credit of the indorsers, but 
 two or more good indorsers are deemed superior to one. But if the last 
 indorser alone can be made responsible to the holder, then the preceding 
 names are of no importance, and would add nothing to the credit of the 
 Note. But this general opinion is founded on the general understanding 
 of the nature of the contract. The indorser is understood to pass to the 
 indorsee every right founded on the Note which he himself possesses. 
 Among these is his right against the prior indorser. This right is founded 
 on an implied contract, which is not, by law, assignable. Yet, if it is capa- 
 ble of being transferred in equity, it vestsj as an equitable interest, in the 
 holder of the Note. No reason is perceived why such an interest should 
 not, as well as an interest in any other chose in action, be transferable in 
 equity. And if it be so transferable, equity will of course afford a remedy. 
 The defendant sustains no injury, for he may defend himself in equity 
 against the holder as effectually as he could defend himself against his im- 
 mediate assignee in a suit at law." 
 
 ' Chitty on Bills, ch. 10, p. 557 (8th edit.) ; Jameson v. Swinton, 2 
 Camp. 373; Wilson v. Swabey, 1 Stark. 34; Rosher u. Kieran, 4 Camp. 
 87 ; Shaw v. Croft, cited in Chitty on Bills, ch. 10, p. 527 (8th edit.), note; 
 Thomson on Bills, ch. 6, § 4, pp. 498, 499 (2d edit.). 
 
 ' Bayley on Bills, ch. 7, § 2, p. 254. But see Thomson on Bills, ch. 6, 
 § 4, pp. 498, 499 (2d edit.), where a different opinion is intimated. Ante, 
 § 302, note. 
 
CHAP. Vin.j PEOCEEDINGS ON NON-PAYMENT. 381 
 
 first or a third indorser, having received none himself, and 
 therefore not being bound to pay the Note, and the holder 
 has not given any notice whatsoever to any of the indorsers, 
 the question in such a case would arise, whether the notice 
 was available in favor of the holder. Suppose the last in- 
 dorser has received no notice from the holder, and is there- 
 fore discharged, would notice by him to the prior indorsers 
 be available for the holder ? ^ The reason in favor of hold- 
 
 ' Mr. Chitty (on Bills, oh. 10, p. 527, 8th edit.) says : " However, accord- 
 ing to the more recent decisions, it is not absolutely necessary that the 
 notice should come from the person who holds the Bill, when it has been 
 dishonored, and it suffices if it be given after the Bill was dishonored, by 
 any person who is a party to the Bill, or who would, on the same being 
 returned to him, and after paying it, be entitled to require reimbursement ; 
 and such notice will, in general, inure to the benefit of all the antecedent 
 parties, and render a further notice from any of those parties unnecessary, 
 because it makes no difference who gives the information, since the object 
 of the notice is, that the parties may have recourse to the acceptor. And 
 therefore it has been held, that if the drawer or indorser of a Bill of Ex- 
 change receive due notice of its dishonor from any person who is a party to 
 it, he is directly liable upon it to a subsequent indorser, from whom he had 
 no notice of the dishonor. And it has been decided, in an action by the 
 indorsee against the drawer, that it is sufficient if the drawer had notice of 
 the dishonor, even from the acceptor. It is however advisable for each 
 party, immediately upon receipt of notice, to give a fresh notice to each of 
 the parties, who would thereupon be liable over to him, and against whom 
 he must prove notice. As already observed, the notice should be given by 
 some agent or servant, who will be competent to prove it, and not by the 
 holder in person, in the absence of a competent witness." Shaw v. Croft, 
 cor. Lord Kenyon, Sittings after Trin.'Term, 1798, MS., and see Selw. N. 
 P. (4th edit.) 320, n. 25, was assumpsit by the holder of a Bill against the 
 drawer Defence, no regular notice of dishonor ; but it being proved that 
 a message had been left at the drawer's house by the acceptor, stating that 
 the Bill had been dishonored. Lord Kenyon said : " That it made no differ- 
 ence who apprised the drawer, since the object of the notice was, that the 
 drawer might have recourse to the acceptor." Jameson v. Swinton, 2 
 Camp. 373, was an action by the second indorsee of a Bill of Exchange, 
 drawn by the defendant, payable to his own order, and indorsed by him to 
 G. Elsom. The Bill became due on Saturday, the 8th of July, when it was 
 in the hands of the plaintiff's bankers. On Monday, the 10th, they re- 
 turned it dishonored to the plaintiffs, who, in the evening of that day, gave 
 notice of the dishonor to Elsom, their indorser. Elsom, between eight and 
 
382 PROMISSORY HOTES. [CHAP. VIII. 
 
 ing the notice good, where it is given by a party liable to 
 pay, or entitled to be reimbursed, is, that it avoids circuity 
 
 nine o'clock in the evening of the following day, gave a like notice to the 
 defendant. The plaintiffs and Elsom resided in London, the defendant at 
 Islington. For the defendant, it was insisted, that the plaintiffs were bound 
 to give notice themselves to the drawer, and all the indorsers against whom 
 they meant to have any remedy. They could not avail themselves of a 
 notice given by a third person. Per Lawrence, J. : "I do not remember 
 to have heard the first point made before, but I am of opinion that the 
 drawer or indorser is liable to all subsequent indorsees, if he had due notice 
 of the dishonor of the Bill from any person who is a party to it.^ Such a 
 notice must serve all the purposes for which the giving of notice is required. 
 The drawer or indorser is authoritatively informed that the Bill is dishon- 
 ored ; he is enabled to take it up if he pleases, and he may immediately 
 proceed against the acceptor or prior indorser, and it does seem to me, that 
 the defendant in this case had due notice of the dishonor of the Bill from 
 Elsom. This is allowing only one day to each party, which, when the 
 parties all reside in the same town, seems now to be the established rule.'' 
 Verdict for the plaintiff. Shaw v. Croft, and Eosher v. Kieran, 4 Camp. 
 87, are the only cases which seem to trench on the rule ; in the other cases, 
 the party giving notice was liable on the Note. Mr. Bayley manifestly 
 doubted the case of Rosher v. Kieran, 4 Camp. 87. See Bayley on Bills, 
 ch. 7, § 2, pp. 254, 255. The same question was much discussed in Stanton 
 V. Blossom, 14 Mass. 116, and the Court decided, that a notice by a party to 
 a Bill (the drawee) was not sufficient. On that occasion Mr. Justice Put- 
 nam said : " But the point of the most difficulty remains. Shall the infor- 
 mation, communicated by the drawees, avail in this action, as if it had been 
 given by the plaintiffs themselves ? It has been argued, that the defend- 
 ants have not been prejudiced at all ; that their funds, although not appro- 
 priated according to their desire, have yet been applied to the payment of 
 their debts ; that the information copiing from the drawees must have been 
 as useful and authentic as could have been given. It is said, also, that the 
 drawees are a party to the Bill ; and that notice from a party to a Bill 
 inures for the benefit of all. In support of this point, the case of Wilson v. 
 Swabey was cited and relied on. That was assumpsit by the indorsee 
 against the drawer. The Bill became due on Thursday ; Lewis, an in- 
 dorser, was notified on Friday, and he notified the defendant on Saturdav. 
 The objection -was, that there was no notice from the plaintiff; but Lord El- 
 lenborough held, that notice from any person who was a party to the Bill was 
 sufficient. But the drawee, who refuses to accept, is not a party, or charge- 
 able in virtue of a Bill ; and notice from him is in no degree better than 
 from any other stranger. More than twenty years ago it was decided, in 
 the case of Tindal o. Brown, which was cited in the argument for the 
 plaintiffs, that notice must come from the holder ; and many later decisions 
 
CHAP. VIII.] PROCEEDINGS ON NON-PAYMENT. 383 
 
 of action. That reason has not the same cogent application, 
 where the party, giving the notice, is absolved from all re- 
 sponsibility.^ 
 
 § 304. In case of the death of the holder, notice should be 
 given by his executor or administrator, if one is appointed at 
 or before the maturity of the Note.^ If none is then ap- 
 
 have corroborated the rule. In a late case in Campbell's Reports, this 
 point is directly decided. The holder himself, or some one authorized, 
 must give the notice. Now, the indorser, who has been notified by the 
 holder of the dishonor of the Bill, may, by reason of his liability, be con- 
 sidered as authorized to notify the drawer, for the benefit of the holder, as 
 well as himself; both having an interest in the matter. They can and 
 ought to inform the drawer whether he must pay the Bill ; and that is a 
 material fact to be communicated to him, and which no stranger is pre- 
 sumed to know. The Bill may not be duly honored ; and the holder may 
 be willing to accept an equivalent, or may give credit to the drawee. In 
 such case the drawer would be discharged. There is good sense in the 
 rule which requires the notice to come from a party liable to be charged 
 upon the Bill, or having an interest in it ; and the drawer is not to be 
 affected by information from any other quarter." The case of Chanoine v. 
 Fowler, 3 Wend. 173, recognizes the same doctrine. See also Stafford 
 V. Yates, 18 John. 327; Chapman u. Keane, 3 A. & El. 193, 196-198; 
 Doorbee v. Eastwood, 3 C. & P. 250 ; Story on Bills, §§ 294, 303, 304 ; 
 U. S. Bank V. Goddard, 5 Mason, 366, 372. 
 
 ' See Turner v. Leech, 4 B. & Aid. 451 ; Marsh v. Maxwell, 2 Camp. 
 210, note; Smith v. MuUett, 2 Camp. 208; U. S. Bank v. Goddard, 5 
 Mason, 366, 372, 373. See Bayley on Bills, eh. 7, § 2, p. 312 (5th edit.) ; 
 Koscow V. Hardy, 12 East, 434. In U. S. Bank v. Goddard, 5 Mason, 372, 
 373, the Court said : " It is laid down in Bayley on Bills, 163 (4th edit), 
 and better authority can scarcely be, that, ' Though a holder or any other 
 party gives no notice but to the person of whom he took the Bill, yet, if 
 notice is communicated without laches to the prior parties, he may avail 
 himself of such communication, and sue any of such prior parties. It is no 
 objection, in such case, that there was no notice immediately from the 
 plaintifi" to the defendant.' And this doctrine is fully supported by decided 
 cases. Jameson v. Swinton, 2 Camp. 373 ; Wilson v. Swabey, 1 Stark. 34; 
 Stanton v. Blossom, 14 Mass. 116 ; and Stafford v. Yates, 18 John. 327, 
 are in point. The reason seems to be, that as the notice is sufficient to 
 charge the defendant with the payment in favor of the person who gives it, 
 it ought to charge him in favor of all subsequent parties, because he sustains 
 no injury from want of notice. It is, as to him, due notice.'' See also 
 Story on Bills, §§ 303, 304, and note. 
 
 ^ Chitty on Bills, ch. 6, pp. 225, 226 (8th edit.) ; Id. ch. 9, p. 389; ante, 
 § 241. 
 
384 PEOMISSOEY NOTES. [CHAP. VIII. 
 
 pointed, it would seem that notice, given within a reasonable 
 time after administration is taken or assumed by the executor, 
 or administrator, will be sufficient.^ If the Note is payable 
 to a partnership, notice given by any partner will be good for 
 all. If two persons, not partners, be holders, notice by one 
 will be presumed to be for both. In case of joint holders, 
 whether partners or not, if either die, the survivor is the 
 proper party to give notice, and not the executor or adminis- 
 trator of the deceased party. This results from a general 
 principle of law, that in such cases the legal title in choses in 
 action, belonging to partners and joint holders, survives to 
 the surviving parties.^ 
 
 § 305. In case of the bankruptcy of the holder, the legal 
 title to the Note will vest in his assignees by relation from the 
 time of the bankruptcy, as soon as they are appointed ; ^ and 
 consequently, notice should be given by them if the Note 
 has not arrived at maturity until after their appointment. 
 If no assignees have been appointed at the time of the ma- 
 turity of the Note, then it would seem to be sufficient if they 
 give notice within a reasonable time after their appointment. 
 Notice, however, in either case, given by the bankrupt holder, 
 would, it should seem, be sufficient to bind the indorser, as 
 the bankrupt stands, as holder, in privity with the assignees, 
 and may be said to have an interest in the Note,* and to rep- 
 resent his estate until assignees have been chosen.* A for- 
 tiori, it would be so, if the assignees should ratify the act of 
 the bankrupt in giving notice. 
 
 § 306. If the holder be an infant, it will be sufficient if 
 
 ' Chitty on Bills, <ik. 10, p. 485. 
 
 ' See Story on Partnership, §§ 344 - 346 ; Evans v. Evans, 9 Paige, 
 178; anle, § 239. 
 
 ' Chitty on Bills, ch. 6, p. 227 (8th edit.) ; Id., 398 ; anle, § 249. 
 
 * Chitty on Bills, ch. 8, p. 368 (8th edit.) ; Id. ch. 9, p. 398. See 3 
 Kent, Lect. 44, p. 108 (5th edit). 
 
 ' I am unable to find any authority exactly in point. But it would seem 
 to be a just result on principle. See Jones v. Fort, 9 B. & C. 764 ; and ex 
 parte Moline, 19 Ves. 216. 
 
CHAP. Vm.] PROCEEDINGS ON NON-PAYMENT. 385 
 
 the notice of the dishonor be given by the infant himself, or, 
 if he has a guardian, by the latter.^ The same rule would 
 seem to apply to any other persons under guardianship. If 
 the holder be a single woman, and she marries before the 
 maturity of the Note, notice of the dishonor should be given 
 by her husband.^ But notice, if given by her with his con- 
 sent, will be equally available ; ^ and, perhaps, as in the 
 event of his death, without reducing the Note into possession, 
 she would be entitled to recover the amount ; as his sur> 
 vivor, notice by her, as a party interested in the Note, will 
 in all cases be sufficient.* Probably the same rule would be 
 applied in case of a Note given to a married woman during 
 the marriage, since it is suable, either in the name of her 
 husband alone, or in their joint names.^ 
 
 [§ 306 a. It remains to consider the effect of an untrue 
 description of the party in whose behalf the notice is given ; 
 and on this head a case regarded by the Court as " perfectly 
 novel " has been recently decided in the English Exchequer. 
 A Bill was drawn by A, indorsed by him to B, and by B to 
 C, in whose hands it was dishonored. C's attorney gave 
 notice of the dishonor iu 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. On these 
 facts, it was held, that the misrepi-esentation of the name 
 .of the person on whose behalf notice was given ought 
 not wholly to avoid the notice, but only to place the party 
 
 ' Chitty on Bills, ch. 2, pp. 23, 24 (8th edit.) ; Story on Bills, §§ 84, 85. 
 
 ' Chitty on Bills, ch. 2, p. 26 (8th edit.) ; McNeilage v. HoUoway, 1 B, 
 & Aid. 218 ; Burrough v. Moss, 10 B. & C. 558 ; Connor v. Martin, 3 Wil- 
 son, 5 ; Bayley on Bills, ch. 2, § 3, pp. 48, 49 (5th edit.) ; Story on Bills, 
 §§ 92, 93 ; Co. Litt. 351 b. 
 
 ' See Chitty on Bills, ch. 2, p. 26 (8th edit.) ; Prestwick v. Marshall, 7 
 Bing. 565 ; Cotes v. Davis, 1 Camp. 485 ; Story on Bills, § 92. 
 
 • Gaters v. Madeley, 6 M. & W. 423 ; Richards v. Richards, 2 B. & Ad. 
 447 ; Story on Bills, §§ 92, 93. 
 
 ' Barlow v. Bishop, 1 East, 432 ; Philliskirk v. Pluckwell, 2 M. & S. 
 393 ; Arnold v. Revoult, 1 B. & B. 445 ; Gaters v. Madeley, 6 M. & W. 
 423 J Story on Bills, §§ 92, 93, and note. 
 25 
 
885 PROMISSORY NOTES. [CHAP. VIH. 
 
 giving it in the same situation, as to the party to whom 
 it was given, as if the representation had been true ; and 
 therefore the defendant ought to have every defence against 
 the plaintiff that he would have had if the notice had really 
 been given by the party named. ^] 
 
 § 307. In the next place, as to the persons to whom notice 
 is to be given. Of course, from what has been already sug- 
 gested,^ the holder is bound to give notice to all prior parties 
 upon the Note, whom he means to hold liable to him upon, 
 the dishonor thereof, and subject to the exceptions herein 
 before stated ; ^ if he does not, those who have not due notice 
 from him will be absolved from all liability to pay the Note.* 
 Notice to a known general agent will be equivalent to notice 
 to his principal.^ If the party entitled to notice be a bank- 
 rupt, and assignees have been appointed, and the holder 
 knows it, notice should be given to them ; ^ if no assignees 
 have been appointed, then notice may be given to thcbanfo 
 rupt, because (as we have seen) the bankrupt represents his 
 estate till assignees have been chosen.'^ If the bankrupt has 
 absconded, and a messenger is in possession under the bank- 
 ruptcy, before the appointment of assignees, then notice 
 should be given to him.^ 
 
 ' Harrison v. Ruscoe, 15 M. & W. 231 ; See also Lysaght v. Bryant, 2 
 Oar. & Kir. 1016 ; Crocker v. Getchell, 23 Maine, 392. 
 
 " Ante, § 299. 
 
 ' Ante, §§ 302, 303. 
 
 * Chitty on Bills, ch. 8, pp. 368, 369 (8tli edit.) ; Id. ch. 9, pp. 398, 399; 
 Id. ch. 10, p. 528 ; Story on Bills, § 305 ; Hutz v. Karthause, 4 Wash. 1 ; 
 Williams v. Bank of United States, 2 Peters, 96. 
 
 ' Thomson on Bills, ch. 6, § 4, p. 501 ; Bayley on Bills, ch. 7, § 2, p. 311 
 (5th edit.) ; Smith v. Thatcher, 4 B. & Aid. 200 ; Wilcox v. Kouth, 9 S. 
 & M. 476. 
 
 ' Chitty on Bills, ch. 8, p. 369 (3th edit.); Id. ch. 10, pp. 528, 529; 
 Kohde V. Proctor, 4 B. & C. 517 ; Thomson on Bills, ch. 6, § 4, pp. 499, 
 5.0O (2d edit.) ; 3 Kent, Lect. 44, p. 199 (5th edit.). 
 
 ' Ibid; ante, § 305 ; ex parte Moline, 19 Ves. 216; Thomson on Bills, 
 ch. 6, § 4, p. 501 (2d edit.) ; Bayley on Bills, ch. 7, § 2, p. 284 (5th edit.) ; 
 3 Kent, Lect. 44„p. 109 (5th edit.). 
 
 ' Rohde V. Proctor, 4 B. & C. 517. On this occasion, Mr. Justice Bay- 
 
CHAP. VIII.] PROCEEDINGS ON NON-PAYMENT. 387 
 
 § 808. In cases of partnership, notice should be given to 
 the firm ; but then notice to either of the partners will be 
 
 ley, in delivering the opinion of the Court, said : " This was an issue from 
 the Court of Chancery, on the question, whether plaintiffs, as assignees of 
 Messrs. Sawyer, Jobler, & Co., had any debt provable under the estate of 
 John Soady 6,ains, a bankrupt. Their claim was upon five Bills of E.x- 
 change, drawn by Rains upon Joseph Lacklan, and indorsed to Sawyer & 
 Co.; the Bills became due June, 1818, and before that time Bains and 
 Lackian had both become bankrupts, and Rains had not surrendered to 
 his commission. Rains committed his act of bankruptcy by leaving the 
 kingdom on the 16th of April, 1818. A commission issued against him on 
 the 20th, and he has never returned. Lacklan became bankrupt on the 
 23d of April, 1818. When the Bills became due, they were dishonored, 
 but no notice was left at Rains's house, nor sent to his assignees; the house 
 was open at the time, and the messenger in it, and the holder of the Bills 
 knew the defendants were Rains's assignees, and the question upon these 
 facts was, whether the want of notice was a bar to the plaintiff's claim ; 
 and we think it was. When a Bill is dishonored, it is the dnty of the 
 holder to use due diligence to give notice to suoh of the parties to the Bill 
 as would be entitled to a remedy over upon it, if they took it up ; and the 
 holder makes the Bill his own, as against those parties, and loses his remedy 
 upon the Bill against them by neglecting to use such diligence. It is no 
 excuse, that the chance of obtaining anything upon the remedy over was 
 hopeless, that the person or persons against whom that remedy would ap- 
 ply were insolvent or bankrupts, or had absconded. Parties are entitled 
 to have that chance offered to them, and, if they are abridged of it, the law, 
 which is founded in this respect upon the usage and custom of merchants, 
 says they are discharged. The bankruptcy, therefore, of Lacklan, is no 
 excuse for the want of due diligence, if such want exist in this case, but the 
 question must be answered as it would have been had Lacklan continued 
 solvent. Had Lacklan been solvent, and Rains's assignees had been ap- 
 prised of the dishonor, they might, at all events, have pressed Lacklan to 
 pay, and had they thought fit to take up the Bill, they might have sued 
 him. Of these opportunities in this case they have been deprived, and the 
 question is, whether they have been deprived by the want of that diligence 
 which they had legally a right to expect from the holders. It is not neees- 
 .sary to decide in this case whether, in the event of the bankruptcy of a 
 party entitled to notice, the holder is bound to endeavor to find out his 
 assignees ; nor is it necessary to say what would be the case, if such a par- 
 ty's house were shut up, and there were no means afforded there of dis- 
 covering him or his representatives, for in this case the bankrupt's house 
 continued open ; the agent of his representatives, the messenger, who was 
 also in some degree his representative, was there, and a notice there would 
 have reached the assignees, and have given them the power of considering 
 
388 PKOMISSORY NOTES. [CHAP. VIII. 
 
 notice to the firm.^ If the Note be given by a firm, of which 
 the indorser, sought to be charged, is a partner, no special 
 notice need be given to him of the dishonor, since he, as one 
 of the firm, must be taken to have full notice of the dis- 
 honor.2 If there are joint indorsers, who are not partners, 
 then notice, it should seem, must be given to each of them ; 
 for notice to one will not be deemed notice to all ; ^ nor (as 
 it should seem), in such a case, would notice to one alone 
 bind even him.* 
 
 § 309. If the indorser is absent, or gone abroad, and he 
 has left a known general agent in his business, it will be suf- 
 ficient to leave the notice of the dishonor with the agent.* 
 
 whether they should have taken any and what steps against Lacklan. In 
 a very excellent modern publication on the law of Bills of Exchange, com- 
 bining the Scotch and English law upon the subject, Thomson on Bills, 
 635 (Id. p. 500, 2d edit.), it is laid down, that, in case of the bankruptcy of 
 the drawer or of an indorser, notice must still be given to the bankrupt, 
 ' or to the trustee vested with his estate for behoof of his creditors,' and he 
 refers (amongst other decisions) to the case of ex •parte Moline. Whether 
 this be universally and in all cases true it is not now necessary to decide ; 
 all the present case requires is this, that, where the bankrupt's house con- 
 tinues open, and an agent of the assignees there, notice is essential, and a 
 neglect to give it bars the holder's claim against the bankrupt's estate. 
 The Bills, therefore, were not provable under the commission issued 
 against the drawer." See Thomson on Bills, ch. 6, § 4, pp. 499 - 501 
 (2d edit.). 
 
 ' Thomson on Bills, ch. 6, § 4, p. 501 (2d edit.) ; Porthouse v. Parker, 1 
 Camp. 82 ; Bignold v. Waterhouse, 1 M. & S. 259 ; Chitty on Bills, ch. 8, 
 pp. 355, 369, 370 (8th edit.) ; Bayley on Bills, ch. 7, § 2, p. 285 (5th edit.); 
 Gowan V. Jackson, 20 John. 175; Story on Bills, §§ 299, 305; Nott v. 
 Douming, 6 Miller, 684. 
 
 = Thomson on Bills, ch. 6, § 2, p. 501 (2d edit.) ; Chitty on Bills, ch. 8, 
 . p. 370 (8th edit.) ; Fuller v. Hooper, 3 Gray, 342 ; Rhett v. Poe, 2 How. 
 (U. S.) 457. 
 
 ' Shepard v. Hawley, 1 Conn. 368 ; Bank of Chenango -u. Root, 4 Cowen, 
 126 ; Beals v. Peck, 12 Barb. 251 ; Sayre u. Frick, 7 Watts & Serg.'SSS ; 
 Willis V. Green, 5 Hill, 232 ; post, § 329. 
 
 ' Ibid. ; Story on Bills, § 299, and note, § 329 ; Sayre v. Frick, 7 Watts 
 & Serg. 383. 
 
 ' See Chouteau v. Webster, 6 Met. 1 ; Hestres v. Petrovic, 1 Rob. La. 
 119 ; Wilson v. Senier, 14 Wis. 380. When notice to a director of a bank 
 
CHAP. VIII.J PROCEEDINGS ON NON-PAYMENT. 389 
 
 But it must be shown, that the agent's character is of such a 
 nature as clearly entitles him to receive notice for his princi- 
 pal. His merely being the attorney at law of the principal 
 will not be sufficient, for he is not virtute officii entitled to 
 receive notice.^ So, where a Promissory Note is indorsed by 
 an agent or attorney, in the name of his principal, under a 
 proper authority to indorse Notes, that is not a sufficient 
 authority for him to receive a notice of the dishonor of the 
 Note ; for an authority to indorse does not include an au- 
 thority to receive notice of dishonor.^ 
 
 § 310. If the indorser entitled to notice is dead, then 
 notice should be given to his personal representative, if there 
 is any ; ^ [or to one of them, where there are several ; *] if 
 there is none, then notice may or should be left at the domi- 
 cile of the deceased.^ If in case of the Not-e of a firm, one of 
 
 is notice to the bank, see 1 Story, Eq. Jur. § 408 a ; Story on Agency, 
 §§ 140 a, 140 h ; 24 Pick. 270, 276. 
 
 ' Crosse V. Smith, 1 M. & S. 545, 552 ; Louisiana State Bank v. EUery, 
 16 Martin, 87. 
 
 ' See Louisiana State Bank v. Ellery, 16 Martin, 87; Montillet v. Dun- 
 can, 11 Martin, 534; Crosse v. Smith, 1 M. & S. 545, 552, 553; Agan v. 
 McManus, li John. 181. 
 
 ' Bayley on Bills, ch. 7, § 2, p. 286 (5th f dit.) ; Chitty on Bills, ch. 8, 
 pp. 369, 370 (8th edit.) ; Id. ch. 10, pp. 484, 528-530; Merchants' Bank 
 V. Birch, 17 John. 25 ; Stewart v. Eden, 2 Caines, 121. See Thomson on 
 Bills, ch. 6, § 1, pp. 416, 417 (2d edit.) ; Id. § 4, p. 501 ; Story on Bills, 
 § 305 ; Oriental Bank v. Blake, 22 Pick. 206. 
 
 * Beals V. Peck, 1 2 Barb. 245. If the notice be directed to the deceased 
 indorser, but be in fact delivered to the executor, this is good. So, a notice 
 sent through the post-office to a deceased indorser by name, his executor 
 being unknown, is good. Linderman v. Guldin, 34 Penn. St. 54. And 
 notice sent to the " Legal Representatives of the indorser," " Lynchburg, 
 Va.," that being his residence, and there being no administrators at the time, 
 was good. Boyd v. City Savings Bank, 15 Gratt. 501. 
 
 ' Jbid. ; Vylllis v. Green, 5 Hill, 232. In this last case, Mr. Chief 
 Justice Nelson seemed to be of opinion, that if one of the joint indors- 
 ers (not partners) should die before the maturity of the Note, the sur- 
 viving indorser would be discharged unless due notice should be given 
 to the personal representative of the deceased, as well as to the survivor. 
 On that occasion he said : " The plaintiff failed to show that the estate of 
 
390 PEOMISSORY NOTES. [CHAP. VHI. 
 
 the firm die, notice should be given to the surviving part- 
 ners. ^ Whether notice to the personal representatives of the 
 deceased would be valid does not appear to be settled by the 
 authorities. But, as in such cases, the personal representa- 
 tives are in equity held liable to pay the same, as well as the 
 survivors, it may be thought that this privity and interest will 
 make such notice good.^ 
 
 § 311. From analogy to the cases already suggested in 
 respect to the inquiry, by whom notice is to be given,^ it 
 should seem that notice of dishonor of the Note should be 
 given to an infant indorser, or to his guardian, if he has one ; 
 for the indorsement is at most voidable and not void. And 
 the like rule would seem to apply, that notice should be 
 given to the guardian of a person, who, since the indorse- 
 ment, has become non compos or insane. In case of the mar- 
 riage of a single woman before or at the maturity of the Note, 
 notice of the dishonor should be given to her husband. 
 
 § 312. In the next place, as to the place and time of giv- 
 
 Johnson had been charged by notice of non-payment. If the notice relied 
 on for that purpose had been sent to the proper place, no doubt it would 
 have been sufficient under the circumstances of this case, though directed 
 to Johnson afber his death. Stewart v. Eden, 2 Caines, 121 ; The Mer- 
 chants' Bank v. Birch, 17 John. 25. But the notice was sent to Little Falls 
 instead of Salisbury, where Johnson resided ; and if there were nothing 
 else in the case, I think the failure to charge the estate by due notice would 
 operate a discharge of both indorsers. It clearly would, if both were liv- 
 ing, as a joint action could not in such case be sustained upon the Note. 
 And although the remedy at law survives against Green alone, yet, as he 
 is entitled to contribution from the estate of his co-indorser, it seems to me 
 equally obligatory upon the holder to prove that both were charged, or 
 rather that the estate of the deceased was charged, so as to secure the 
 remedy over. Otherwise the whole debt would fall upon the survivor. 
 The question, however, is not without its difficulties, and it is unnecessary 
 now to decide it." 
 
 ' See Story on Partn. §§ 344, 347 ; Cocke v. Bank of Tennessee, 6 
 Humph. 51. 
 
 ' See Story on Partn. §§ 347, 362 ; Devaynes v. Noble, 1 Meriv. 529, 
 563, 564; 1 Story on Equity Jurisp. § 676 ; Wilkinson v. Henderson, 1 
 My. & K. ,582, 588. 
 
 » Ante, § 306. 
 
CHAP. VIII.] PROCEEDINGS ON NON-PAYMENT. 391 
 
 ing notice of the dishonor of a Promissory Note. And first, 
 as to the place. Where the party entitled to notice, and the 
 holder, reside in the same town or city, the general rule is, 
 that notice should be given to the party entitled to it, either 
 personally, or at his domicile or place of business.^. If it is 
 given personally, of course it is good, wherever he may be 
 
 ' Story on Bills, §§ 235, 236, 297; Chitty on Bills, ch. 10, pp. 502, 516 
 (8tli edit.) ; Bayley on Bills ch. 7, § 2, p. 276 (5tli edit.) ; Bank of Co- 
 lumbia V. Lawrence, 1 Peters, 582 ; Williams v. Bank of United States, 2 
 Peters, 100 ; Bank of United States v. Hatch, 1 McLean, 92 ; Burrows v. 
 Hannegan, * McLean, 310 ; Franklin v. Verbois, 6 Miller, 730 ; Wilcox v. 
 McNutt, 2 How. (Miss.) 776. And the general rule is, that where the par- 
 ties live in the same town or village the notice cannot be sent through 
 the post-office. 3 Kent, 107 (11th edit.), Comstock's notes; Bowling v. 
 Arthur, 34 Miss. (5 George), 41 ; Power v. Mitchell, 7 Wis. 161 ; Heiss v. 
 Corcoran, 15 La. An. 694. But if the notice is put in the post-office 
 in the same town, and is actually received on the proper day, it will be 
 good. Shaylor v. Mix, 4 Allen, 351 ; Cabot Bank v. Warner, 10 Allen, 
 522 ; Grinman v. Walker, 9 lo. 426. But if it is not received until the 
 second day after dishonor, it is bad. Nevins v. Bank, 10 Mich. 547. And 
 where a Note was payable at bank, evidence of the custom of the bank to 
 , notify resident indorsers through the mail was admitted to show a modifica- 
 tion, of the general rule. Grinman v. Walker, 9 lo. 426. In Lime Rock 
 Bank v. Hewett, 52 Maine, 51, such evidence was admitted to affect in- 
 dorsers of Notes payable at the bank conusant of the usage, but was reject- 
 ed as to indorsers of Notes not payable at the bank not conusant of the 
 usage. An indorser whose residence is outsideof the city, but whose post- 
 office is the city office, is well notified by letter dropped in the city post 
 office. Barret v. Evans, 28 Mo. 331. So notice through the post-office in 
 the city of Baltimore to an indorser in that city who always receives his 
 letters through the penny-post. Walters o. Brown, 15 Md. 285. Notice 
 by mail in the same place is good by statute. Kern v. Von Phul, 7 Minn. 
 426. So in New York, if the place of notice and of legal presentment is 
 the same, notice may be put in the mail. Randall v. Smith, 34 Barb. 452. 
 Notice to a member of Congress through the Congressional post-office dur- 
 ing a session is not sufficient without proof that it was actually received. 
 Hill V. Norvell, 3 McLean, 583. 
 
 The residence of the bank or notary charged with the collection of the 
 Note is the residence that determines the deposit of the notice in the mail, 
 and not the residence of the true owner of the Note. Bowling v. Harrison, 
 6 How. (U. S.) 248 ; Manchester Bank v. Fellows, 8 Foster, 302 ; Bur- 
 bank V. Beach, 15 Barb. 326 ; Greene v. Farley, 20 Ala. 322. 
 
392 PEOMISSOEY NOTES. [CHAP. Vni. 
 
 found.^ If it be not personally given, then it will be suf- 
 ficient if it is given, or left at or sent to his domicile or place 
 of business ; and it need not be at or to both places.^ It will 
 make no difference that his domicile is in one town or city, 
 and his place of business is in another town or city ; for 
 in such a case the holder has his election.^ If the par- 
 ties entitled to notice are partners, the notice will in like 
 manner be sufficient if left at or sent to the place of busi- 
 ness of the firm, or of any one partner, or to the domicile of 
 either of the partners. If the party entitled to notice has 
 changed his domicile or place of business since he became an 
 indorser, then the notice should be at his new domicile or place 
 of business at the time when the right to notice accrues.* 
 
 § 313. What constitutes the domicile or place of business 
 of the party entitled to notice is, in many cases, a mixed 
 question of law and of fact. If the party is a housekeeper, 
 that is his domicile where his family resides. If he is not a 
 housekeeper, but lives at lodgings or at a boarding-house, 
 then that place is deemed his domicile.^ If he keeps a dis- 
 tinct or independent counting-room, or ofiice, in wliich he 
 usually transacts his business, that is deemed his place of 
 business. If he has no separate counting-room or office of 
 his own, but usually transacts his business at a counting- 
 
 ' Hyslop V. Jones, 3 McLean, 96. 
 
 ' Bayley on Bills, eh. 7, § 2, p. 276 (5th edit.) ; Story on Bills, §§ 297, 
 382 ; Crosse v. Smith, 1 M. & S. 545 ; Bancroft v. Hall, Holt, 476 ; Frank- 
 lin 0. Verbois, 6 Miller, 727; Ireland v. Kip, 10 John. 490 ; S. C, 11 John. 
 231 ; Smedes v. Utica Bank, 20 John. 872; Laporte «. Landry, 17 Martin, 
 359; Louisiana State Bank w. Eowel, 18 Martin, 506 ; Clay v. Oakley, 17 
 Martin, 137 ; Bank of Columbia v. Lawrence, 1 Peters, 578 ; Granite Bank 
 V. Ayers, 16 Pick. 392 ; 3 Kent, Lect. 44, pp. 106-108 (5th edit;) ;' Shel- 
 don II. Benham, 4 Hill, 129, 133; Ransom v. Mack, 2 Hill, 587; United 
 States V. Barker, 4 Wash. 464 ; Williams v. Bank of United States, 2 
 Peters, 100. 
 
 '■ Ibid. 
 
 * Ibid. 
 
 ' See Bank of United States v. Hatch, 6 Peters, 250; Bank of United 
 States V. Hatch, 1 McLean, 92 ; Buxton v. Jones, 1 Man. & Gr. 83. See 
 Belmont Bank v. Patterson, 1 7 Ohio, 78. 
 
CHAP. VIII.] PROCEEDINGS ON NON-PAYMENT. B9^ 
 
 room or office which is partly occupied or used by another, 
 that will or may be deemed his place of business. But a 
 place which he has no particular right to use for such pur- 
 pose, such as an insurance office, or a bank room, or an ex- 
 change room, or a post-office, to which persons in general 
 habitually or occasionally resort j will not be deemed his place 
 of business, in the sense of the rule, although he may occa- 
 sionally or transiently transact business there. ^ [So the 
 
 ' See Bank of United States v. Corcoran, 2 Peters, 121 ; Ireland v. Kip, 
 10 John. 491 ; S. C, 11 John. 231 ; Granite Bank y. Ayres, 16 Pick. 392; 
 Bank of Columbia v. Lawrence, 1 Peters, 582. In this last case the Court 
 said : " From this statement of the case it appears that the Note was made 
 at Georgetown, payable at the Bank of Columbia, in that town. That the 
 defendant, when he indorsed the Note, lived in the county of Alexandria, 
 within the District of Columbia, and having what is alleged to have been 
 a place of business in the city of Washington ; and the notice of non-pay- 
 ment was put into the Georgetown post-office, addressed to the defendant 
 at that place, by which it is understood that the notice was either enclosed 
 in a letter, or the notice itself sealed and superscribed with the name of 
 the defendant, with the direction ' Georgetown ' upon it ; and whether this 
 notice is sufficient is the question to be decided. If it should be admitted 
 that the defendant had what is usually called a place of business in the 
 city of Washington, and that notice served there would have been good, it 
 by no means follows that service at his place of residenee, in a different 
 place, would not be equally good. Parties may be and frequently are so 
 situated that notice may well be given at either of several places. But the 
 evidence does not show that the defendant had a place of business in the city 
 of Washington, according to the usual commercial understanding of a place 
 of business. There was no public notoriety of any description given to it 
 as such. No open or public business of any kind carried on, but merely 
 occasional employment there, two or three times a week, in a house occu- 
 pied by another person ; and the defendant only engaged in settling up his 
 old business. In this view of the case, the inquiry is narrowed down to the 
 single point, whether notice through the post-office at Georgetown was 
 good; the defendant residing in the country, two or three-miles distant 
 from that place, in the county of Alexandria. The general rule is, that 
 the party whose duty it is to give notice in sflch cases is bound to use due 
 diligence in communicating such notice. But it is not reqiiired of him 
 to see that the notice is brought home to the party. He may employ 
 the usual and ordinary mode of conveyance, and, ■ whether the notice 
 reaches the party or not, the holder has done all that the law requires of 
 him." 
 
S94 PEOMISSOBY NOTES. [CHAP. VIIL 
 
 office of a corporation, of which the indorser is president, in 
 a town different from his residence, is not, in the absence of 
 proof, his place of business within the rule.^] 
 
 § 314. An indorser, entitled to notice, may, by a previous 
 arrangement or agreement, assign a different place from that 
 of his domicile or place of business, at which the notice of 
 dishonor of the Note or Notes indorsed by him may be 
 delivered or left, or to which it may be sent ; and in such a 
 case he will be regularly bound if the notice is duly left at or 
 sent to the place so assigned.^ Thus, if an indorser should 
 agree with the holder of a Note, that the notice of the dis- 
 honor might be left at a particular bank, or insurance office, 
 or at a particular shop, that would make a notice, duly left 
 there, sufficient to bind him in point of law.^ 
 
 § 315. If the notice is left at the place of business of the 
 indorser, it should be left within the usual hours of business ; 
 for, if left after those liours, it will not be deemed sufficient, 
 unless some person in the employment of the indorser is 
 there found ready to receive it.* If left at the dwelling-house 
 of the indorser it should (as we shall presently see) be 
 within reasonable hours, and before the house is shut up for 
 the night.* If the house be shut up in consequence of the 
 temporary absence of the indorser, still the notice may be 
 left thei-e, or at a neighboring house ; for it is the duty of 
 the party, under such circumstances, to leave some person 
 
 ' Commercial Bank v. Strong, 28 Verm. 316. 
 
 ' See Ireland v. Kip, 11 John. 231. See Carter v. Union Bank, 7 
 Humph. 548 ; Bowling v. Harrison, 6 How. (U. S.) 248. 
 
 ' Brent u. Bank of the Metropolis, 1 Peters, 89. In PennsylTania, by- 
 statute, if an indorser affixes no place to his name, notice at any time before 
 suit is good, and he is not entitled to notice of maturity. Ashton v. Sproule, 
 35 Penn. St. 492. 
 
 • Bayley on Bills, ch. 7, § 2, p. 276 (5th edit.) ; Crosse v. Smith, 1 M. 
 & S. 545; Bancroft v. Hall, Holt, N. P. 476. See Pierson v. Boyd, 2 
 Duer, 37. 
 
 » Chitty on Bills, ch. 10, pp. 502, 503, 516 (8th edit.); Allen v. Ed- 
 mundson, 2 Exch. 719; S. C, 2 Car. & Kir. 547; Hallowell v. Curry, 41 
 Penn. St. 322 ; Adams v. Wright, 14 Wis. 408. 
 
CHAP. VIII.] PROCEEDINGS ON NON-PAYMENT. 395 
 
 there ready to receive such communications.^ And it will be 
 a sufficient discharge of the duty of the holder, that he leaves 
 the notice in a way reasonably calculated to bring knowledge 
 thereof to the owner, if he or his servants should visit the 
 house.^ Indeed, it seems that it is. not necessary in such 
 cases to leave any written notice at all ; for, as the notice 
 may be verbal, if the holder or his agent goes to the place of 
 business within the usual hours, and finds it shut up, or if 
 he goes to the dwelling-house within reasonable hours, and 
 finds it shut up, and no one there to receive notice, that will 
 be a sufficient compliance with the rule requiring notice on 
 the part of the holder, and exonerate him from all implica- 
 tion of laches.^ 
 
 ' 3 Kent, Lect. 44, p. 107 (5th edit.) ; Williams i^. Bank of United 
 States, 2 Peters, 100; Stewart v. Eden, 2 Caines, 121. 
 
 ' Ibid. ; Wharton v. Wright, 1 Car. & Kir. 586. The notice must be 
 left at the place of business, and not merely in the building, and it is not 
 sufficient to leave the notice on a desk in the second story if the indorser's 
 place of business is in the third. Kleinman v. Boernstein, 32 Mo. 311. Nor 
 is it sufficient that notice was sent to the place of business without proof 
 that it was given to some one authorized to receive it. Davenport v. Gil- 
 bert, 4 Bosw. 532; Adams v. Wright, 14 Wis. 408. 
 
 ' Bayley on Bills, ch. 7, § 2, p. 276 (5th edit.); Crosse v. Smith, 1 M. & 
 S. 545 ; Bancroft v. Hall, Holt, 476 ; Chitty on Bills, ch. 10, pp. 488, 502, 
 503 (8th edit.) ; Id. p. 516 ; Williams v. Bank of United States, 2 Peters, 
 100 ; Hine v. Allely, 4 B. & Ad. 624. In the case of Crosse v. Smith, 1 M. 
 & S. 545, 554, Lord EUenborough, in delivering the opinion of the Court, 
 said : " That brings it to the question, whether sending the Bill by a clerk 
 after ten o'clock, and knocking and waiting at the counting-house door, was 
 sufficient notice in point of law ; and we think that it was. The period 
 from ten to eleven was a time during which a merchant's counting-house 
 ought to be open, and some person expected to be met with there. The 
 counting-house is a place where all appointments respecting the joint busi- 
 ness, and all notices, should be addressed, and it is the duty of the merchant 
 to take care that a proper person be in attendance. It has, however, 
 been argued, that notice in writing left at the counting-house, or put into 
 the post, was necessary; but the law does not require it, and with whom 
 was it to be left ? Putting a letter in the post is only one mode of giving 
 notice, but where both parties are residing in the same post-town, sending 
 a clerk is a more regular and less exceptionable mode. The case of Gold- 
 smith V. Bland, before Lord Eldon, supports this doctrine. The only 
 
PROMISSORY NOTES. [CHAP. VIH. 
 
 § 316. Where the domicile or place of business of the in- 
 dorser is unknown, it is the duty of the indorsee to make 
 reasonable inquiries, and to use due diligence in endeavoring 
 to ascertain it.^ Where the indorser has removed from his 
 
 notice of the dishonor of the Bill was by a clerk of the indorsee, who went to 
 the counting-house of the indorser, found the counting-house shut up and 
 no person there ; saw a servant-girl, who said nobody was in the way ; then 
 returned without leaving any message. Lord Eldon told the jury that if 
 they thought the indorser was bound to have somebody there, the notice 
 was regular. The jury were satisfied that the hour was a proper hour, and 
 that the defendant ought to have had a clerk there. So, by a recent deci- 
 sion of this Court, in Howe h. Bowes, we have held, that if the makers of 
 Notes shut up and abandon their shop, it is substantially a refusal by them 
 to pay." 
 
 ^ Chapcott V. Curlewis, 2 Mood. & Eob. 484. On this subject, Mr. Chitty 
 (pp. 486 - 488) says : " The holder of a Bill of Exchange is also excused for 
 not giving regular notice of its being dishonored to an indorser, of whose 
 place of residence he is ignorant, if he use reasonable diligence to discover 
 where the indorser may be found. And Lord EUenborough obiserved: 
 ' When the holder of a Bill of Exchange does not know where the indorser 
 is to be found, it would be very hard if he lost his remedy by not communi- 
 cating immediate notice of the dishonor of the Bill ; and I think the law 
 lays down no such rigid rule. The holder must not allow himself to remain 
 in a state of passive and contented ignorance ; but, if he uses reasonable 
 diligence to discover the residence of the indorser, I conceive that notice 
 given as soon as this is discovered is due notice of the dishonor of the Bill, 
 within the usage and custom of merchants.' And in a late case, where the 
 traveller of A, a tradesman, received in the course of business a Promissory 
 Note, which he delivered to his master, and the Note having been returned 
 to A dishonored, the latter not knowing the address of the next-preceding 
 indorser, wrote to his traveller, who was then absent from home, to inquire 
 respecting it ; it was held that A was not guilty of laches, although several 
 days elapsed before he received an answer, and before he gave notice to 
 the next party, as he had used due diligence in ascertaining his address; 
 and two days' delay, after ascertaining the residence, in forwarding notice, 
 were excused, the holder and his attorney occupying that time. And it 
 has been considered to be sufficient, when a Promissory Note has been dis- 
 honored, to make inquiries at the maker's for the residence of the payee.- 
 But in a subsequent case it was held, that, to excuse the not giving regular 
 notice of the dishonor of a Bill to an indorser, it is not enough to show that 
 the holder, being ignorant of his residence, made inquiries upon the subject 
 at the place where the Bill was payable ; he should have inquired of every 
 other party to the Bill, and have applied to all persons of the same name in 
 
CHAP. VIII.] PROCEEDINGS ON NON-PAYMENT. 397 
 
 old domicile or place of business, and his present domicile or 
 place of business is not known there, it is the duty of the 
 holder to make reasonable inquiries, and to use due dili- 
 gence in his endeavors to ascertain the new domicile or place 
 of business of the indorser, if he means to charge him.^ In 
 such a case, it would seem to be immaterial, whether the re- 
 moval be to another place in the same State, or to another 
 State, or to a foreign country, if his new domicile or place of 
 business is known, or can by reasonable inquiries and due 
 diligence be ascertained ; for under such circumstances, no- 
 tice may be sent to him by the mail, or by the other usual con- 
 veyances resorted to in cases of foreign Bills.^ [Thus, if the 
 
 the directory. Applying to the last indorser, and last but one, the day 
 after the Bill was due, to ascertain where the drawer lives, and, on his not 
 being in the way, calling again the next day, and then giving the drawer 
 notice, has been considered sufficient ; and when a person, upon transfer- 
 ring a Bill or Note, declines stating where he lives, but engages to call upon 
 the acceptor to ascertain whether the Bill has been paid, he thereby dis- 
 penses with the necessity of giving him any notice." Again, in p. 524, he 
 speaks pointedly to the same effect. See also Spencer o. Bank of Salina, 
 3 Hill, 520; Belden v. Lamb, 17 Conn. 441 ; Harris v. Robinson, 4' How. 
 345; Lambert v. Ghiselin, 9 Ibid. 552; Carroll v. Upton, 2 Sand. 171; 
 Rawdon v. Redfield, Ibid. 178; Runyon v. Mountfort, 1 Busbee, 374; 
 Smith V. Fisher, 24 Penn. St. 222. 
 
 ' Chitty on Bills, ch. 10, pp. 486-488, 524 (8th edit.); Barnwell v. 
 Mitchell, 3 Conn. 101 ; Bank of Utica v. De Mott, 13 John. 432; Smyth 
 V. Hawthorn, 3 Rawle, 355 ; Hill v. Varrell, 3 Greenl. 233 ; M'Murtrie v. 
 Jones, 3 Wash. 206 ; Bank of Utica v. Phillips, 3 Wend. 408 ; Fitler v. 
 Morris, 6 Whart. 406 ; McLanahan v. Brandon, 13 Martin, 321 ; Brighton 
 Bank v. Philbrick, 40 N. H. 506 ; Libby v. Adams, 32 Barb. 542 ; Daven- 
 port V. Gilbert, 4 Bosw. 532 ; Adams v. Leland, 5 Bosw. 411 ; Randall v. 
 Smith, 34 Barb. 452. 
 
 ' On this subject, Mr. Chitty (p. 524) says : " If the residence of the 
 party to whom the notice ought to be given be not known to the holder, he 
 must nevertheless not remain in a state of passive and contented ignorance, 
 but must use due diligence to discover his residence, and if he do, then the 
 indorser remains liable, though a month or more may have elapsed before 
 actual notice be given ; and if he, before the Bill becomes due, be applied 
 to by one of the parties to ascertain the residence of the indorser, and he 
 declined giving him any information, the holder need not, after the Bill 
 became due, renew his inquiries of that party ; but, in general, the holder 
 
398 PROMISSORY NOTES. [OHAP. VIH. 
 
 indorser, at the time of protest be in Wasliington, as a mem- 
 ber of the United States Senate then in session, and in the 
 daily habit of receiving his letters through the post-office at 
 Washington, while at his last place of abode in his own 
 State he has left no agent to receive or forward letters, then 
 notice sent by mail to Washington would be sufficient. i] 
 But if, upon such inquiries and diligence, the new domicile 
 or the place of business of the indorser cannot be found ; or 
 if he has removed into another State, or into a foreign coun- 
 try, and his new residence is not known, and cannot upon 
 reasonable inquiries be found ; or if lie has gone temporarily 
 abroad, leaving no known place of business or domicile here, 
 or no known agent authorized to receive notice, that will dis- 
 pense with the necessity of giving notice by the holder.^ 
 
 should not only immediately apply to all the parties to the Bill for informa- 
 tion, but also make inquiries, and send notice to the place where it may 
 reasonably be supposed the party resides; and if he has employed an attor- 
 ney, who at length discovers the residence, we have seen that it will suffice, 
 if the attorney, on the next day, consults with his client, and the latter, on 
 the third day, forwards the notice to the discovered indorser ; though, in 
 general, notice ought to be given on the next day. And a letter from the 
 holder, giving notice of the dishonor, containing this passage : ' I did not 
 know where, till within these few days, you were to be found,' is not to be 
 taken as proving that the notice was not given on the next day after the 
 Eesidence of the party was discovered. Where the traveller of a tradesman 
 received in the course of business a Promissory Note, which was delivered 
 to him for the use of his principal, without indorsing it, and the Note hav- 
 ing been returned to the principal dishonored, and the latter, not knowing 
 the address of the next preceding indorser, wrote to his traveller, who was 
 then absent from home, to inquire respecting it, it was held, that such prin- 
 cipal was not guilty of laches, although it was urged that the traveller ought 
 to have stated the residence when he remitted the Notes, and though several 
 days elapsed before he received an answer, and thereupon he gave notice 
 to the next party, he had used due diligence in ascertaining the address." 
 
 ' Walker v. Tunstall, 3 How. (Miss.) 259 ; Tunstall v. Walker, 2 Sm. & 
 Mar. 638 ; Chouteau v. Webster, 6 Met. 1 ; Wilson v. Senier, 14 Wis. 380. 
 But see Hill v. Norvell, 3 McLean, 583. 
 
 » Story on Bills, §§ 297, 299 ; Chitty on Bills, ch. 10, pp. 516, 524, 525 
 (8th edit.); Bayley on Bills, ch. 7, pp. 274, 275, 280-283 (5th edit); 
 3 Kent, Lect. 44, pp. 107, 108 (5th edit.) ; Id. p. 109 ; McMurtrieu. Jones, 
 3 Wash. 206,; Fisher v. Evans,. 5 Binn. 541; Chapman v. Lipscombe, 1 
 
CHAP. Vm.] PROCEEDINGS ON NON-PAYMENT. 399 
 
 Where the domicile or place of business of the indorser can- 
 not, upon such inquiries and diligence, be found, the reason 
 is obvious why notice should be dispensed with ; for here the 
 maxim forcibly applies, " Lex neminem cogit ad vana seu 
 inutilia peragenda.^ Where the party has gone abroad, or 
 removed to another state or country, and his new residence 
 is unknown, and he has left no agent here, and no means of 
 ascertaining his new residence, the law deems it unreason- 
 able to compel the holder to follow the indorser to another 
 state or country, or to search for him there, in order to give 
 him notice, since he has thus voluntarily placed himself out 
 
 John. 294 ; Browning v. Kinnear, Gow. 81 ; Firth v. Thrush, 8 B. & C. 
 387 ; Clarke v. Sharpe, 3 M. & W. 166 ; Barnwell v. Mitchell, 3 Conn. 
 101; Safford v. WyckoflF, 1 Hill, 11; Howard v. Ives, 1 Hill, 263; Ran- 
 som V. Mack, 2 Hill, 687 ; Blakely v. Grant, 6 Mass. 386 ; Bateman v. 
 Joseph, 12 East, 433 ; Preston v. Daysson, 7 Miller, 7 ; Bank of Utica v. 
 Davidson, 5 Wend. 687 ; Williams v. Bank of United States, 2 Peters, 100 ; 
 McLain v. Waters, 9 Dana, 55, 56. Mr. Bayley (on Bills, ch. 7, § 2, pp. 
 281 - 283) says : " Where it is not known where a party lives, due dili- 
 gence must in general be used to find out. And where such diligence is 
 unsuccessful, it will excuse want of notice. But merely inquiring at the 
 house, where a Bill is payable, is not due diligence for finding out an in- 
 dorser. Inquiry should be made of some of the other parties to the Bill or 
 Note, and of persons of the same name. Calling on the last indorser, and 
 last but one, the day after the Bill becomes due, to know where the drawer 
 lives, and, on his not being in the way, calling again the next day, and then 
 giving the drawer notice, may be sufficient. But if a party, when he 
 peisses a Bill or Note, decline saying where he lives, and undertake to call 
 upon the acceptor to- see if the Bill is paid, he cannot complain of want of 
 notice. Where the residence of a party entitled to notice is unknown, and 
 the person next to him upon the Bill or Note will give no information 
 where he lives, a note addressed to the former, if sent to the place where 
 such latter person lives, will be sufficient, though the application for infor- 
 mation be made before the Bill or Note is due ; especially, if the person 
 applied to has acted in any respect, with regard to the' Bill or Note, as 
 agent for the party entitled to notice. And, if the holder employ an attor- 
 ney to give notice, and the attorney after a lapse of time discover where 
 the party lives, he may take a day to apprise the holder, and take his fur- 
 ther directions, before he gives the notice." See also Blakely v. Grant, 6 
 Mass. 386. 
 
 ' Wing. Max. 600 ; Branch's Max. 98. 
 
400 PROMISSORY NOTES. [CHAP. VIII. 
 
 of the reach of. personal notice, and has left behind him no 
 reasonable means of ascertaining his residence, and no agent 
 charged with authority to receive it liere.^ A fortiori, the 
 holder is not bound to make search, or to institute inquiries 
 all round the world, for an absentee, who has absconded or 
 abandoned his home, leaving no traces behind him to mark 
 out his future contemplated residence.^ 
 
 § 317. But if the party has gone abroad, and has left his 
 family at his residence at home, notice should be left at his 
 residence, if it is known, or can by reasonable inquiries be 
 found out.^ If, under the like circumstances, he has an 
 agent here authorized to receive the notice, who is known, or 
 can by reasonable inquiries be found out, notice should be 
 left with such agent.* If the party has removed abroad, and 
 his new domicile is known, or can by reasonable diligence be 
 ascertained, notice should he sent to him by the due and 
 regular conveyance.® 
 
 ' See MuGruder v. Bank of Washington, 9 Wheat. 598 ; Story on Bills, 
 §§ 289, 297-299'; Cbittyon Bills, ch. 16, pp. 505, 506 (8th edit.) ; Blakely 
 V. Grant, 6 Ma-ss. 386 ; McMurtrie v. Jones, 3 Wash. 206 ; Blodgett v. Dur- 
 gin, 32 Verm. 361. 
 
 ' Chitty on Bills, ch. 7, p. 307; ch. 8, p. 360; ch. 10, p. 485 (8th edit.). 
 See Burmester v. Barron, 9 Eng. Law & Eq. 402 ; W'alwyn v. St. Qain- 
 tin, 1 Bos. & Pull. 652; S. C, 2 Esp. 516; Williams v. Bank of United 
 States, .2 Peters, 100. 
 
 * Chitty on Bills, ch. 10, pp. 505, 506 (8th edit.) ; Cromwell v. Hynson, 
 2 Esp. 511. See Wharton v. Wright, 1 Car. & Kir. 585 ; Wilson v. Senier, 
 14 \yis. 380. 
 
 * Ibid. 
 
 ' Ante, § 316 ; Hodges v. Gait, 8 Pick. 251. See Rothschild ». Barnes, 
 2 Jurist, 1084. We have already seen, that if the maker of a Note re- 
 moves to another State, or to a foreign country, no presentment or demand 
 is required to be made there upon him ; but it is by law dispensed with. 
 Ante, § 236 ; McGruder ». Bank of Washington, 9 Wheat. 598 ; Story on 
 Bills, § 352, and note. The reason for this rule does not apply to the giv- 
 ing of notice, since that need not be personal, but may be by the mail, or 
 other proper and usual conveyance. In McMurtrie v. Jones, 3 Wash. 206, 
 208, Mr. Justice Washington said : " As to the question of notice, there is 
 more difficulty. At the time the assignment was made to the plaintiff, the 
 defendant resided in Philadelphia, as a boarder, at Mrs. Hand's. A few 
 
CHAP. VIII.J PEOCEEDINGS ON NON-PAYMENT. 401 
 
 § S18. The French law seems to have adopted a similar 
 doctrine as to notice, with the like exception, where the resi- 
 dence of the indorser is unknown. If due notice be not 
 given, the indorser will be discharged from his liability, if his 
 residence be known, with this qualification, that the holder 
 is not prevented by irresistible force or casualty from giving 
 it in due season. But, as we have already seen, the indorser 
 will, by the French law, be discharged only to the extent of 
 the damage which he has received from the want of notice.^ 
 But if the residence of the indorser is unknown, and cannot 
 be ascertained by reasonable inquiry, that will entirely super- 
 sede the necessity of any notice to him.^ 
 
 § 319. In the next place, within what time notice is to be 
 given, in order to charge the indorser ? And this may be 
 resolved into the general principle, that notice must in all 
 cases, where it is proper and necessary, be given within a 
 reasonable time.^ But then, this leaves the inquiry open, 
 what is a reasonable time, or, in other words, how is it to be 
 measured and ascertained ? To such an inquiry, the only 
 
 weeks before the Note became due, the defendant left Mrs. Hand's, and 
 went to New York, with an intention to embark for England, which he car- 
 ried into execution. This was known to Longstreth, but it does not appear 
 that it was known to Mrs. Hand, to the plaintiff, or his agent, Mr. Craig, 
 or to any one else ; and it is worthy of remark, that it is proved, that before 
 this final removal he was frequently absent from this city upon visits to the 
 Eastern States. Generally speaking, notice to the indorser ought to be 
 given, although he should be beyond sea, if the place of his residence is 
 known ; and a reasonable diligence to find out his place of residence ought 
 to be used, of which you are the proper judges. But, under all the cir- 
 cumstances of this case, it appears to the Court that the notice left at the 
 known place of residence of the defendant, before his final departure, was 
 sufficient. The Court give no opinion respecting the custom which has 
 been mentioned, and respecting which some evidence has been given, as it 
 does not appear to be sufficiently proved." See Story on Bills, §§ 297- 
 299. 
 
 ' Ante, § 285. 
 
 ° Pardessus, Tom. 2, art. 434. 
 
 ' Story on Bills, §§ 285, 382 ; Id. §§ 284, 286 ; 3 Kent, Lect. 44, pp. 104- 
 106 (5th edit.) ; Darbishire v. Parker, 6 East, 1,9; Scott v. Liflford, 9 East, 
 847 ; 3 Kent, Lect. 44, pp. 105, 106 (5th edit.). 
 26 
 
402 ■ PROMISSORY NOTES. [CHAP. VIII. 
 
 answer which can be given is, that it must depend upon the 
 circumstances.^ In some particular classes of cases, a rule 
 has been established, artificial it may be, but still established, 
 for the purpose of general notoriety and, convenience. In 
 other cases, not falling within these classes, it is difficult to 
 lay down any general rule, and every case must be decided 
 upon its own circumstances. The principal classes of cases, 
 in which a fixed rule is established, are (1.) First, Where the 
 holder and the indorsers, entitled to notice, reside in the 
 same town or city. (2.) Secondly, Where they reside in 
 different towns or cities. 
 
 § 320. Let us, then, in the first place, consider the rule, 
 where both parties, the holder and the indorser, reside in the 
 same town or city. In such a case, it is the duty of the 
 holder to give notice to the indorser, at furthest, on the next 
 day after the dishonor (at the maturity of the Note) takes 
 place, early enough to enable the indorser to receive it on 
 the same day, either personally, or at his domicile, or at his 
 place of business.^ Notice will, indeed, be good, if given on 
 
 ' See Darbishire v. Parker, 6 East, 1,9; Bancroft v. Hall; Holt, 476 ; 
 Seott V. LifFord, 9 East, 347 ; Bank of United States v. Carneal, 2 Peters, 
 543. 
 
 2 Bayley on Bills, ch. 7, § 2, p. 268 (5th edit.) ; Darbishire v. Parker, 
 6 East, 3, 9 ; Story on Bills, §§ 288 - 290, 382 ; Chitty on Bills, ch. 10, pp. 
 513,514,518 (8th edit.); Kansom u. Mack, 2 Hill, 587; McFarland v. 
 Pico, 8 Cal. 626 ; Blackman v. Leonard, 15 La. An. 59 ; Geill v. Jeremy, 
 cited in Chitty on Bills, ch., 10, p. 518 (8th edit.), in note; S. C, Mood. 
 & Malk. 61 ; Ireland v. Kip, 10 John. 490; S. C, 11 John. 231 ; Cayuga 
 County Bank v. Bennett, 5 Hill, 236. Mr. Chitty lays down the rule, 
 that if both parties reside in or near the same town or city, notice is to be 
 given in the manner stated in the text. His language is : " In all these 
 cases, it suffices to cause notice to be received on the next day, by the pre- 
 ceding indorser, when resident in or near the same place ; and where the 
 parties do not reside in or near the place of the dishonor, it suffices to forward 
 notice by the general post that goes out on the day after the refusal, or if 
 there be no post on that day, then on the third day, though thereby the 
 drawer or indorser may not, in fact, receive notice till the third day, or 
 sometimes, according to the course of the post, not until the fourth, or even 
 subsequent day. The reason why it has been decided, that it shall in no 
 
CHAP. VIII.] PROCEEDINGS ON NON-PAYMENT. 403 
 
 the same day of the dishonor,^ if it be after, but not if it be 
 before, the presentment and, dishonor.^ But it is not indis- 
 
 case be necessary to give notice on the day of the dishonor, or on the same 
 day when an indorser receives notice, although the indorser may even live 
 in the same street as the holder, and although the post may go out on the 
 same day, and not on the next, is to prevent nice and diiBcult inquiries, 
 whether or not, in this or that particular case, the holder could conveniently 
 have given notice on the same day, or whether the pressure of other busi- 
 ness did not prevent him from so doing, the affirmative or negative of which 
 might be in the knowledge only of the holder himself, or might become a 
 very critical inquiry, and be very difficult and uncertain in legal proof. 
 Another reason is, that the holder ought not to be required, omissis omnibus 
 aliis negotiis, to occupy himself immediately in forwarding notice to the 
 prior parties, when, by delaying that step till the next morning, he would, 
 after the press of other business had subsided, have, in the evening, or early 
 the next morning, before his general business commences, time to look into 
 his accounts with the other parties, and to consider his best steps to obtain 
 payment from them, and to ascertain their precise residences, and to pre- 
 pare and forward, either by hand or by such next day's post, a proper notice 
 to all the parties against whom he means to proceed to enforce payment." 
 Chitty on Bills, ch. 10, pp. 513, 514 (8th edit.) ; Id. 515, 516. Probably 
 by " ia or near the same place," he had in his mind cases where the resi- 
 dence was near to the town or city, and where no post or mail went, or post- 
 office was kept, in the ordinary course of things, and not cases of residence 
 in towns contiguous to each other, where there was a regular post-office in 
 each. See Laporte u. Landry, 17 Martin, 359; Lanusse v. Masaicott, 3 
 Martin, 261 ; Carson v. Bank of Alabama, 4 Ala. 148 ; Ransom v. Mack, 
 2 Hill, 587, 591. In this last case, Mr. Justice Bronson, in delivering the 
 opinion of the Court, said : " The rule formerly was, that notice of the dis- 
 honor of a Bill or Note must be served personally on the drawer or indorser, 
 or be left at his dwelling-house or place of business; and that rule still pre- 
 vails in this country when the party to be charged resides in the same place 
 where the presentment or demand is made. Ireland v. Kip, 10 John. 490 ; 
 
 ' [But this will not enlarge the time allowed to any other party. Man- 
 chester Bank v. Fellows, 8 Foster, 302.] 
 
 ' Bayley on Bills, ch. 7, § 2, pp. 267, 268, (5th edit.) ; Chitty on Bills, 
 ch. 8, p. 367 (8th edit.) ; Id. ch. 9, p. 432; Id. ch. 10, p. 513 ; Story on 
 Bills, §§ 290, 382; Burbridge v. Manners, 3 Camp. 193 ; ex parte Moline, 
 19 Ves. 216; Clowes v. Chaldecott, 7 Law Jour. 147, cited in Chitty on 
 Bills, p. 800 (8th edit.) ; Shed v. Brett, 1 Pick. 401 ; Bussard v. Levering, 
 6 Wheat. 102; Lindenberger v. Beall, 6 Wheat. 104; Thorpe v. Peck, 28 
 Verm. 127. 
 
4Q4 PROMISSORY NOTES. [CHAP. VIII. 
 
 pensable that it should be given on the same day. It will be 
 
 S. C, 11 John. 231; Smedes v. Utica Bank, 30 John. 372; Louisiana 
 State Bank v. Bowel, 18 Martin, 506 ; Laporte v. Landry, 17 Martin, 359 ; 
 Clay V. Oakley, Id. 137 ; Shepard v. Hall, 1 Conn. 329. See also Hartford 
 Bank v. Stedman, 3 Conn. 489 ; Bank of Columbia v. Lawrence, 1 Peters, 
 578. But where the 'drawer or indorser resides in a different place from 
 that in which the presentment or demand is made, the old rule, which re- 
 quired personal service, has been relaxed, and it is now well settled, that 
 notice may be sent by mail. The only difficulty arises from the fact, that 
 the defendant resided in the same town, though at the distance of seven 
 miles from the bank, where the Note was made payable. In Ireland v. 
 Kip, the indorser resided at Kip's Bay, within the corporate limits of the 
 city of New York, where the demand was made, but at the distance of 
 three and a half miles from the New York post-office, where he received 
 his letters. There was no post-office at Kip's Bay, and notice left at the 
 city post-office was held not to be sufficient. The service should have been 
 personal, or by leaving the notice at the indorser's dwelling-house or place 
 of business. The rule laid down in that case has never been, and should 
 not be applied, without some qualification, to our large country towns, which 
 often have more than one post-office, or where, if they have but one, a por- 
 tion of the inhabitants live so far from it that they usually receive their let- 
 ters and papers through a neighboring office in another town. Notice may, 
 I think, always be sent through the post-office, wherever there is a regular 
 communication by mail between the place of presentment or demand and 
 the office where the person to be charged usually receives his letters and 
 papers. In Ireland v. Kip, the notice was not left in the New York office 
 to be transmitted by post to another office, but to remain there until called 
 for ; and such was also the case in all the other instances where that mode 
 of service has been held to be insufficient. In Laporte v. Landry, it was 
 said by Martin, J., that the post-office was not a legal place of deposit for 
 notices ; but that service in that mode was sufficient, ' where notice may 
 be conveyed by mail.' And in Louisiana State Bank v. Kowel, the rule 
 was laid down by Porter, J., that mail service is good, ' when the indorsers 
 live at such a distance that their residence is nearer another post-office than ' 
 that where the holder lives.' The corporate limits of our cities and towns 
 have, I. think, less to do with this question than the mail arrangements of 
 the general government, and the business relations of our citizens. Whether 
 mail service is good or not, does not depend upon the inquiry, whether the 
 person to be charged resides within the same legal district ; but upon the 
 question, whether the notice may be transmitted by mail from the place of 
 presentment or demand to another post-office, where the drawer or indorser 
 usually receives his letters and papers. In this case, although the defend- 
 ant lived in the same town where the demand wjis made, and there was but 
 one post-office 'in that town ; yet, as he lived remote from the Saekett's Har- 
 
CHAP. VIII.J PROCEEDINGS ON NON-PAYMENT. 405 
 
 sufficient, in all cases, if given on the next day ; ^ for the 
 holder is not bound to any diligence more strict, since that 
 would be to require him to devote himself exclusively to 
 the giving notices of the ■ dishonor, omissis omnibus aliis 
 negotiis? 
 
 § 321. When it is said that the notice must, at furthest, 
 be on the next day, this must be understood, not in its literal 
 meaning, but as referring to the next biisiness or secular day; 
 for, if by the laws or usages of the country, the day be 
 devoted to religious services, or public amusements and req- 
 reations, or be kept as a festival, or other holiday, it will be 
 sufficient to give the notice on the succeeding day ; ^ for such 
 days are treated altogether as days in which no person is 
 bound to attend to any seculai' business, but is at liberty to 
 devote himself exclusively to the religious services and ob- 
 servances, or the public festivities of the particular occasion.* 
 
 bor ofBoe, and there was another office in his vicinity to which he usually 
 resorted for letters and papers, there can, I think, be no doubt that notice 
 might have been well served by mail." 
 
 ^ Bayley on Bills, ch. 7, § 2, pp. 268, 271 (5th edit.) ; Smith v. Mullet, 
 2 Camp. 208 ; Manchester Bank v. Fellows, 8 Foster, 302 ; Darbishire v. 
 Parker, 6 East 1, 9 ; Scott «. Liiford, 9 East, 347 ; Langdale v. Trimmer, 
 15 East, 293; Grand Bank v. Blanchard, 23 Pick. 305; Lindo v. Uns- 
 worth, 2 Camp. 602 ; Whittlesey v. Dean, 2 Aikens, 263 ; Chick v. Pills- 
 bury, 24 Maine 458. But see Kobbins v. Pinckard, 5 S. & M. 51. 
 
 ^ Ibid. 
 
 ' Howard v. Ives, 1 Hill, 263 ; Haynes v. Birks, 3 Bos. & Pull. 599, 601 ; 
 Wright V. Shawcross, 2 B. & Aid. 501, note ; Bray v. Hadwen, 5 M. & S. 
 68 ; Burckmeyer v. Whiteford, 6 Gill, 1. 
 
 * Martin v. Ingersoll, 8 Pick. 1 ; Bayley on Bills, ch. 7, § 2, p. 271 (5th 
 edit.) ; Thomson on Bills, ch. 6, § 4, pp. 489, 490 (2d edit.) ; Chitty on 
 Bills, ch. 10, pp. 519, 520 (8th edit.) ; Eagle Bank v. Chapin, 3 Pick. 180, 
 183, and note of Mr. Perkins, Ibid. ; Story on Bills, §§ 288,' 289, 293 ; Lin- 
 do V. Unsworth, 2 Camp. 602. Mr. Chitty (on Bills, eh. 10, p. 520, 8th 
 edit.) says : " And at common law, and independently of that statute, if a 
 notice be received on a Good Friday or Christmas day, it is not to be con- 
 sidered as received until the next day, and notice need not be forwarded 
 by the party who actually received it on one of those days, until the third 
 day afterwards. And in the spirit of toleration it has been held, that a 
 Jew is not obliged to forward notice on the day of a great Jewish festival, 
 
406 PROfflSSOEY NOTES. [CHAP. VIH. 
 
 THus, if the day on which notice of the dishonor of tlie Note 
 should ordinarily be given, should happen to fall on Sunday, 
 or Christmas day, or Good Friday, or on any other day set 
 apart by public authority, or usage, for a solemn fast, or 
 thanksgiving, or it is otherwise consecrated to purposes not 
 secular, or it is a known public holiday (such as in America 
 is the fourth of July), in every such case, it will be suflS- 
 cient to give the notice on the next succeeding day after 
 Sunday, Christmas, or such other holiday. Indeed, the law 
 has such a tender regard for the consciences of men, that if, 
 according to the religion of the holder, or other person, bound 
 to give the notice, or the usages of his religious sect, the day 
 on which he is bound to give notice falls on a day consecrated 
 to religious purposes, such as Saturday among the Jews, in 
 every such case it will be sufficient to give the notice on the 
 next succeeding secular day. Hence, if the dishonor should 
 take place on Friday, it will be sufficient, in the case of a 
 Jew, that he gives the notice on the following Monday.^ 
 
 during which it is unlawful for any persons of that persuasion to attend to 
 any sort of business." Mr. Bayley (ch. 7, § 2, p. 27], 5th edit.) gives the 
 result of the authorities in his usual succinct manner. He says : " Where a 
 party receives notice on a Sunday, he is in the same situation as if it did 
 not reach him till the Monday ; he is not bound to pay it any attention till 
 the Monday'; and has the whole of Monday for the purpose. So, if the 
 day on which notice ought thus to be given be a day of public rest, as 
 Christmas day or Good Friday, or any day appointed by proclamation for 
 a solemn fast or thanksgiving, the notice need not be given until the fol- 
 lowing day. And it has been held, that, where a man is of a religion which 
 gives to any other day of the week the sanctity of Sunday, as in the case 
 of Jews, he is entitled to the same indulgence as to that day. Where 
 Christmas day, or such day of fast or thanksgiving shall be on a Monday, 
 notice of the dishonor of Bills or Notes, due or payable the Saturday pre- 
 ceding, need not be given until the Tuesday." He immediately adds, 
 referring to the provisions of the statute of 7 and 8 Geo. 4, ch. 15, §§1-4: 
 " And Good Friday, Christmas day, and any day of fast or thanksgiving 
 shall, from 10th April, 1827, as far as regards Bills and Notes, be treated 
 and considered as Sunday. But these provisions do not apply to Scotland." 
 See also Deblieux ■o. BuUard, 1 Eob. (La.) 66 ; Farmers' Bank v. Vail, 
 21 N. Y. 485 ; Hallowell v. Curry, 41 Penn. St. 322. 
 ' Ibid. ; Lindo v. Unsworth, 2 Camp. 602. 
 
CHAP. Vni.] PROCEEDINGS ON NON-PAYMENT. 407 
 
 § 322. Where both parties reside in the same town or city, 
 it is not competent for the holder to put a letter, containing 
 the notice of the dishonor, into the post-office of the same 
 town or city, directed to the indorser, and to insist upon the 
 same as a sufficient notice ; for the law requires, that the 
 notice should be either personal, or at the domicile, or at the 
 place of business of the indorser,.so that it may reach him on 
 the very day on which he is entitled to notice.^ If, indeed, 
 being so put into the post-office, it nevertheless does in fact 
 reach the indorser on the same day, it will, under such cir- 
 cumstances, be a sufficient notice.^ But the fact must be 
 brought home directly to the indorser ; for it will not be 
 presumed from the mere fact that he is accustomed to send 
 to the post-office several times during the day." [In like 
 manner, if the indorser resides in the same town where the 
 Note is protested, a notice sent by mail to his place of busi- 
 ness in another city will not bind him.*] 
 
 § 323. There is an apparent exception to the general rule, 
 which, however, is not in reality such, but falls within the 
 general rule. It is this, that where there is, as in large 
 towns and cities, a letter-carrier, or, as he is often called, a 
 
 ' See Crosse v. Smith, 1 M. & S. 545, 554 ; Williams v. Bank of U. 
 States, 2 Peters, 100 ; Ireland v. Kip, 10 John. 490 ; S. C, 11 John. 231 ; 
 Smedes v. Utica Bank, 20 John. 372; Shepard v. Hall, 1 Conn. 329; 
 Laporte v. Landry, 17 Martin, 359 ; McCrummen v. McCrummen, 17 Mar- 
 tin, 158; Peiroe v. Pendar, 5 Met. 352; Pritchard v. Scott, 19 Martin, 
 492 ; Clay v. Oakley, 17 Martin, 137 ; Louisiana State Bank v. Rowel, 18 
 Martin, 506 ; Miranda v. City Bank, 6 Miller, 744 ; Porter v. Boyle, 8 
 Miller, 170 ; Bank of Columbia v. Lawrence, 1 Peters, 578, 583 ; Story on 
 Bills, §§ 284 - 286, 289, 290, 292; 3 Kent, Lect. 44, pp. 105-107 (5th 
 edit.); Eansom u. Mack, 2 Hill, 587; Sheldon v. Benham, 4 Hill, 129; 
 Cayuga County Bank v. Bennett, 5 Hill, 236 ; Glenn v. Thistle, 1 Rob. 
 572 ; Manadue v. Kitchen, 3 Rob. 261 ; Seneca Co. Bank v. Neass, 5 Denio, 
 330 ; Kramer v. M'Dowall, 8 Watts & Serg. 1 38 ; Saul v. Brand, 1 Louis. 
 Ann. 95 ; Hogatt v. Bingaman, 7 How. (Miss.) 565. See notes, § 312. ^' 
 
 ' Ibid. ; Manchester Bank v. Fellows, 8 Foster, 302 ; Foster v. Sineath, 
 2 Rich. 338. 
 
 " Ibid. ; Bank of U. States v. Corcoran, 2 Pet. 121. 
 , * Van Vechten v. Pruyn, 3 Kern. 549. 
 
408 PROMISSORY NOTES. [CHAP. Vin. 
 
 penny-post, who carries letters daily from the post-office, and 
 delivers tliem at the houses or places of business of the par- 
 ties who are accustomed to receive their letters by him ; 
 there, if the notice be left at the post-office early enough in 
 the day to go by such letter-carrier, or penny-post, on the 
 same day, to the party entitled to notice, it will be deemed 
 sufficient ; for in such cases, the letter-carrier or penny-post 
 is treated as an agent for the purpose, because it is a usual 
 mode of conveyance.'' 
 
 ' Chitty on Bills, ch. 10, pp. 504, 508, 513 (8th edit.) ; Id. pp. 515, 516, 
 518 ; Story on Bills, §§ 289, 291, 382 ; Scott v. Lifford, 1 Camp. 246 ; S. 
 C, 9 East, 347; Smith v. Mullet, 2 Camp. 208; Hilton v. Fairclough, 2 
 Camp. 633 ; Dobree v. Eastwood, 3 C. & P. 250 ; Edmonds v. Gates, 2 
 Jurist, 183 ; Bank of Columbia w. Lawrence, 1 Pet. 578, 583, 584; Ireland 
 V. Kip, 10 John. 490; S. C, 11 John. 231 ; 3 Kent, Lect. 44, pp. 105-107 
 (5th edit.) ; Thomson on Bills, ch. 6, § 4, pp. 476, 477 (2d edit.). Mr. 
 Chitty (p. 504) says : " Notice of the dishonor of a Bill sent by the two- 
 penny-post is sufficient, where the parties live within its limits, whether 
 near or at a distance from each other, but it must be proved that the letter, 
 conveying the notice, was put into the receiving-house on the next day, at 
 such an hour, that, according to the course of the post, it would be delivered 
 to the party to whom it is addressed on the day when he was entitled to 
 receive notice of the dishonor." And again, in pp. 515 and 516, he says: 
 " But there is a very material distinction in the time of giving or forward- 
 ing notice in cases where the parties reside in or near the same town, and 
 when notice may be readily given on the day after the dishonor or notice 
 of it, either verbally or by special messenger, or by local post, and cases 
 where the parties reside at a distance, and when the ordinary mode of com- 
 munication is by general post. Thus, when the parties reside in the same 
 town, the holder, or other person to give the notice, must, on the day after 
 the dishonor,' or on the day after he received the notice, cause nQtice to be 
 actually forwarded, by the post or otherwise, to his next immediate in- 
 dorser, sufficiently early in the day, that the latter may actually receive 
 the same before the expiration of the day ; and, therefore, in London, if a 
 letter, containing such notice, be put into the post-office after five o'clock in 
 the afternoon of the second day, and in consequence it is not received till 
 the morning of the third day, the party who ought to have actually re- 
 Csived the notice on the second day will be discharged. In London, the 
 local post (usually termed the twopenny-post) forwarded letters to be de- 
 livered in the metropolis three times within the same day, namely, at eight, 
 two, and five o'clock ; and letters put into any receiving-house before 
 either of those hours ought regularly to be delivered on the same day ; but 
 
CHAP. VIII.] PEOCEEDINGS ON NON-PAYMENT. 409 
 
 § 324. In the next place, where the holder and the in- 
 dorser, entitled to notice, reside in different towns and cities. 
 In such cases, the notice may be by the post, or by a special 
 messenger, or by a private hand, or by any other suitable 
 and ordinary conveyance.^ The usual mode, where the par- 
 ties reside in different towns or cities (which will presently 
 come more fully under our consideration), is, to send the 
 
 when out of the metropolis, and within ten miles, there are only two deliv- 
 eries in each day to and from the metropolis, and a letter put into any 
 proper office in London before five o'clock in the afternoon, will be de- 
 livered on the same day at any place within such distance of ten miles ; 
 and a letter put into a country office within that distance, before four 
 o'clock, ought properly to be delivered in London on the same day. The 
 holder, or party forwarding the notice, may give it verbally, or he may put 
 a letter in the twopenny-post, directed even to an indorser who resides in 
 the same street. If he send notice by a private hand, it must be given or 
 left at the indorser's residence before the expiration of the day ; if to a 
 banker, during the hours of business ; but to another person the hour is 
 not material. If, by any irregularity in the post-office, a. letter put in in 
 due time be not delivered till the third day, it should seem that such 
 laches will not prejudice." In Bank of Columbia v. Lawrence, 1 Pet. 578, 
 583, Mr. Justice Thompson, in delivering the opinion of the Court, said : 
 " It seems at this day to be well settled, that, when the facts are ascertained 
 and undisputed, what shall constitute due diligence is a question of law. 
 This is certainly best calculated to have fixed on uniform rules on the sub- 
 ject, and is highly important for the safety of holders of commercial paper. 
 And these rules ought to be reasonable and founded in general conven- 
 ience, and with a view to clog as little as possible, consistently with the 
 safety of parties, the circulation of paper of this description ; and the rules 
 which have been settled on this subject have had in view these objects. 
 Thus, when a party entitled to notice has in the same city or town a dwell- 
 ing-house and counting-house, or place of business, within the compact part 
 of such city or town, a notice delivered at either place is sufficient ;and if 
 his dwelling or place of business be within the district of a letter-carrier, a 
 letter, containing such notice, addressed to the party and left at the post- 
 office, would also be sufficient. All these are usual and ordinary modes 
 of communication, and such as affijrd reasonable ground for presuming 
 that the notice will be brought home to the party without unreasonable 
 delay." 
 
 1 Chitty on Bills, eh. 10, p. 518 (8th edit.) ; Bayley on Bills, ch. 7, § 2 ; 
 Crosse V. Smith, 1 M. & S. 545, 554 ; Bancroft v. Hall, Holt, 476 ; Bank of 
 Columbia v. Lawrence, 1 Peters, 582 ; Seneca Co. Bank v. Neass, 5 Denio, 
 330 ; post, § 338. 
 
410 PROMISSORY NOTES. [CHAP. VIII. 
 
 notice by the post, where -both the parties reside in places 
 within the same state or country, between which the ordinary 
 communication is by the post.^ Wherever the post is thus 
 resorted to, the general rule, which seems at first to have 
 been adopted, was to require that notice should be sent by 
 the next post after the holder, or other party, who was bound 
 to give notice, had himself received knowledge of the dis- 
 honor ; at least, this was the rule applied, whenever a rea- 
 sonable time remained to prepare and send the notice, be- 
 tween the arrival of the knowledge of the dishonor, and the 
 going out of the post afterwards on the same day ; that is to 
 say, it was required to be sent, if not by the next possible 
 post, at least by the next practicable post.^ But this rule 
 
 ' Chitty on Bills, ch. 10, p. 503 (Sth edit.) ; Bussard v. Levering, 6 
 Wheat. 102 ; Munn v. Baldwin, 6 Mass. 316. 
 
 ' Bayley on Bills, ch. 7, § 2, p. 268 (Sth edit).) ; Malynes, B. 3, ch. 6, 
 § 1 ; Marius on Bills, p. 24 (2d edit.) ; Id. p. 16 (edit. 1794) ; Tindal v. 
 Brown, 1 Term, 167 ; Darbishire v. Parker, 6 East, 3-8. In this last case 
 Lord EUenborough said : " It comes to the point, whether I was right in 
 telling the jury that the plaintiffs had till the next day, after they received 
 the notice of the Bill's being dishonored, to communicate that notice to the 
 drawer ; for it struck me, that if they were in time to give notice on the 
 13th at Liverpool, they had the whole of that day, and having sent a letter 
 of advice by a private hand to the drawer in time for him to have written 
 by the post of that night to London, they might be considered to have used 
 due diligence. There appears to me considerable difficulty in laying down 
 any certain time within which notice must at all events be given. The 
 general direction, indeed, of Marius and other writers, is to send notice of 
 the dishonor of a Bill by the next post, where the parties do not live in the 
 same place ; and the same was said in Tindal v. Brown ; and yet, in that 
 case it was considered sufficient if notice were given the next day, where 
 the parties all lived in the same town. If notice must at any rate be com- 
 municated by the next post after it is received, it must often happen that 
 the party will not have a day, or anything like a day, to give it in ; for the 
 post may go out immediately, or very soon after the letter of advice ar- 
 rives. There must, therefore, be some reasonable time allowed, and that, 
 too, accommodating itself to other business and affairs of life ; otherwise, it 
 is saying that a man who has Bill transactions passing through his hands 
 must be nailed to the post-office, and can attend to no other business, how- 
 ever urgent, until this is despatched. But if there be a reasonable time 
 between the coming in and going out of the post on the same day, as in 
 
CHAP. Vin.] PROCEEDINGS ON NON-PAYMENT. 411 
 
 was soon found to be too narrow and limited for public con- 
 venience, and it was gradually enlarged. The established 
 doctrine now is, that it is in no case necessary to send the 
 notice by the post of the same day of the dishonor, or of the 
 knowledge of the dishonor ; but the holder and other party 
 is entitled to the whole of that day to prepare his notice, and 
 it is sufficient that the notice be put into the office early 
 enough to go by the post of the succeeding day.i This rule 
 
 this case four or five hours may be contended to be, allowing for reasonable 
 diligence in other concerns as well as in this, it would be a material ques- 
 tion, if newly raised, whether the party were bound to communicate by the 
 next post the intelligence he had received by the post on the same day. 
 I think, however, there is sufficient doubt in this case whether reasonable 
 diligence were used to make it proper to send the case to be considered by 
 another jury ; for here the plaintiffs not only did not write by the next post 
 of the same day, which went out after an interval of four or five hours, but 
 they did not even write by the post of the next day, but relied on a private 
 hand to carry the letter of advice, by which it was not in fact delivered until 
 after the post hour of delivery in Liverpool." Story on Bills, §§ 288 - 290, 
 382, 383 ; Chitty on Bills, eh. 10, p. 510 (8th edit.) ; Id. pp. 514, 515. See 
 also Whit well u. Johnson, 17 Mass. 449 ; Geill v. Jeremy, cited in Chitty 
 on Bills, ch. 10, p. 518, note ; 1 Mood. & Malk. 61 ; Lenox if. Roberts, 2 
 Wheat. 373 ; Whittlesey v. Dean, 2 Aikens, 263 ; Chick v. Pillsbury, 24 
 Maine, 458. But see Robbins v. Pinckard, 5 S. & M. 51. 
 
 ' Darbishire v. Parker, 6 East, 3, 8 ; Bayley on Bills, ch. 7, § 2, pp. 268 
 -270 (5th edit.); Chitty on Bills, ch. 10, pp. 510, 519, 520 (8th edit.) ; 
 Scott V. Lifford, 9 East, 347; Langdale v. Trimmer, 15 East, 231, 293; 
 Bray v. Hadwen, 5 M. & S. 68 ; Wright v. Shawcross, 2 B. & Aid. 501, 
 note; Hawkes v. Salter 4 Bing. 715; Smith v. Mullett, 2 Camp. 208; 
 Poole V. Dicas, 1 Scott, 600 ; Geill v. Jeremy, 1 Mood. & Malk. 61 ; White- 
 well V. Johnson, 17 Mass. 449, 454; Seaver v. Lincoln, 21 Pick. 267; 
 Eagle Bank v. Chapin, 3 Pick. 180, 183 ; United States v. Barker's Adm'x, 
 4 Wash. 464 ; S. C, 12 Wheat. 559 ; Story on Bills, §§ 288, 289, 382, 383. 
 The progress of opinion may be traced in the latter authorities with great 
 accuracy. In Bray v. Hadwen (5 M. & S. 68) Lord EUenborough said : 
 " It has been laid down, I believe since the case of Darbishire v. Parker, as 
 a rule of practice, that each party, into whose hands a dishonored Bill may 
 pass, should be allowed one entire day for the purpose of giving notice ; a 
 different rule would subject every party to the inconvenience of giving an 
 account of all his other engagements, in order to prove that he could not 
 reasonably be expected to send notice by the same day's post which 
 brought it. This rule is, I believe, in conformity with what Marius states 
 upon the subject of notice, and it has been uniformly acted upon at Guild- 
 
412 PROMISSORY NOTES. [CHAP. VIII. 
 
 equally applies, where there are two posts which go out oii 
 the same day ; for in such a case it is sufficient if the notice 
 is put into the post early enough to go by either post of that 
 day, however late in the day one of thSm may be ; for the 
 fractions of the day are not counted.^ 
 
 hall by this Court for some time. It has, moreover, this advantage, that it 
 excludes all discussions as to the particular occupations of the party on the 
 day. As to the objection that notice was not given by the holders immedi- 
 ately to the defendant, it was given by one who was an indorser, and not 
 by a stranger, which is enough to satisfy the allegation that the defendant 
 had notice." In Williams v. Smith, 2 B. & Aid. 496, 500, Lord Tenterdeh 
 said : " It is of the greatest importance to commerce that some plain and 
 precise rule should be laid down to guide persons in all cases as to the time 
 within which notices of the dishonor of Bills must be given. That time I 
 have always understood to be the departure of the post on the day follow- 
 ing that in which the party receives the intelligence of the dishonor ; and 
 in that sense the passage cited from the very learned treatise- on Bilk of 
 Exchange must be understood, as well as the judgment of Lord Mansfield 
 in Tiiidal v. Brown. If, instead of that rule, we were to say, thatHhe 
 party must give notice by the next practicable post, we should raise in 
 many cases difficult questions of fact, and should, according to the peculiar 
 local situation of parties, give them more or less facility in complying 
 with the rule. But no dispute can arise from adopting the rule which I 
 have stated. In its application to the present case, the result is, that the 
 plaintiff has been guilty of no laches, and that he is entitled to our judg- 
 ment. It appears that if these Notes had been transmitted direct to 
 Newbury by the post they would not have been paid, for they discontinued 
 payment there on Monday morning ; and though the circumstance of one 
 set of halves being sent by the coach caused their arrival in London two 
 hours later, still, that being a reasonable precaution, the plaintiff had a 
 right to send them by that conveyance. There is a difference between this 
 case and that of a Bill of Exchange, payable to order, for such Bill may 
 be specially indorsed, and no risk incurred by sending it then by the post. 
 But here it would not have been so safe to have transmitted Notes payable 
 to the bearer on demand by that conveyance. Then, in addition to this, it 
 appears that the defendant has not been in the least degree prejudiced by 
 this mode of 'conveyance having been adopted. On the whole, therefore, 
 the plaintiff is entitled to our judgment." See also 3 Kent, Lect. 44, pp. 
 106, 107 (5th edit.); Hilton v. Shepherd, « East, 14, note ; Townsley, d. 
 Springer, 1 Miller, 125; Ind. 515 ; Hubbard v. Troy, 2 Ired. 134 ; Bank of 
 United States v. Merle, 2 Rob. La. 117 ; Commercial Bank of Natchez v. 
 King, Rob. La. 243 ; Wemple' v. Dangerfield, 2 S. i& M. 445. 
 1 Whitewell v. Johnson, 17 Mass. 449, 454 ; Howard v. Ives, 1 Hill, 263 ; 
 
CHAP. Vni.] PEOCEEDINGS ON NON-PAYMENT. 413 
 
 § 325. The doctrine thus laid down may, perhaps, admit, 
 if it does not require, some other qualifications and limita- 
 tions. Thus, for example, in some towns and cities, the post 
 for the succeeding day goes out very early in the morning, 
 or soon after midnight, and the mail is made up and closed 
 sometimes at an early hour, and sometimes at a late hour, of 
 the preceding evening. In such a case, the question might 
 arise, whether, if the notice was not put into the post-oflSce 
 until after the mail was closed on the evening of the day of 
 the dishonor, the notice would be too late, or whether the 
 holder or other party would be entitled to the next day to 
 prepare and send his notice by the next succeeding post. No 
 decision upon this point seems to have occurred in England.^ 
 
 Housatonic Bank v. Laflin, 5 Cush. 550. Contra, Bank of United States 
 V. Merle, 2 Rob. La. 117. Each indorser is entitled to one day to notify 
 his previous indorser. Allen v. Avery, 47 Maine, 287. Fitchburg Bank 
 V. Perley, 2 Allen, 433 ; True v. Collins, 3 Allen, 438. 
 
 ' [But it was discussed in the late case of Lawson v. Farmers' Bank, 1 
 Ohio St. 206. The Court there said : " Touching the second question, then, 
 did the Court of Common Pleas err in charging the jury, that, if the notice 
 to the indorsers, of the demand and non-payment of the Bill, vras deposited 
 in the post-oflace at Pittsburg at any time during the day, after the day of 
 dishonor, without regard to the time of the departure of the mail for that 
 day, it would be sufficient notice ; and, moreover, that if it was found incon- 
 venient to deposit the notice in the post-office in time for the mail of that 
 day, it was in proper time if the notice was deposited in time to be sent off 
 by the next mail of the day next after the day following the day of the dis- 
 honor of the Bill ? 
 
 " This involves a very important question of the law merchant, and it is 
 not a little sui'prising that there should remain any doubt or uncertainty, at 
 this late day, upon a question of such vital importance to the interest of 
 commercial countries, respecting the duties and liabilities of holders and 
 parties to dishonored paper. And it is a matter of no small moment, that a 
 question which enters so largely as does this into the every-day business 
 transactions of different commercial states and oountries, should be settled, 
 not only upon a certain and unvarying, but also upon a uniform basis. 
 
 " The liability of the indorser is strictly conditional, — dependent both 
 upon due demand of payment upon the maker or acceptor, and also due 
 and legal notice of the non-payment. The purpose and object of such 
 demand and notice is to enable the indorser to look to his own interest, 
 and take immediate measures for his indemnity. The demand and notice 
 
414 PEOMISSOEY NOTES. [CHAP. VHI. 
 
 But it would deserve consideration, whether, under such 
 circumstances, the second post might not be deemed the 
 
 being' conditions precedent to the indorser's liability, it is incumbent on the 
 holder to make clear and satisfactory proof of them before he can recover. 
 The plaintiffs in error in this case, being accommodation indorsers, may 
 well insist upon strict proof of due diligence in giving notice of the dishonor 
 of the Bill. 
 
 " The law does not require the utmost diligence in the holder, in giving 
 notice to the dishonor of a Bill or Note. All that is requisite is ordinary 
 or reasonable diligence. And this is not only the rule and requirement of 
 the law merchant, but a statutory provision of this State. But what 
 amounts to due diligence, or reasonable notice is, when the facts are ascer- 
 tained, purely a question of law, settled ' with a view to practical conven- 
 ience, and the usual course of business.' 
 
 " The question was at one time strenuously contested, whether due 
 diligence did not require, that, where the parties reside in the same place, 
 the notice of non-payment should be given on the day of the dishonor of 
 the Bill ; and, where the parties reside in different places, should be sent 
 by the mail of that day, or the first possible or practicable mail after the 
 default. Tindal v. Brown, 1 Term, 167; Darbishire v. Parker, 6 East, 3; 
 Marius on Bills, 24. But the rule was established and is supported by 
 great weight of authority, that where the parties riEside in different places, 
 and the post is the mode of conveyance adopted, although it was in no case 
 necessary to send the notice by the post of the same day of the dishonor, 
 or of the knowledge of the dishonor, the holder being entitled to the whole 
 of that day, being the day of the dishonor or knowledge of the dishonor, to 
 prepare his notice ; yet that the notice would be insufficient unless put into 
 the post-office in time to go by the next mail after that day. And this is 
 in conformity with the rule laid down by Mr. Chitty, in his learned treatise 
 on Bills of Exchange, in the following explicit language : ' When the par- 
 ties do not reside in the same place, and the notice is to be sent by general 
 post, then the holder or party to give the notice must take care to forward 
 notice by the post of the next day, after the dishonor, or after he receives 
 notice of such dishonor, whether that post sets off from the place where he 
 is, early or late ; and if there be no post on such nfext day, then he must 
 send off notice by the very next post that occurs after that day.' Chitty 
 on Bills, 485. 
 
 " This is in accordance with the rule as settled by the Supreme Court of 
 the United States. In Lenox v. Roberts, 2 Wheat. 373, Chief Justice Mar- 
 shall says : ' It is the opinion of the Court that notice of the default of the 
 maker should be put into the post-office early enough to be sent by the 
 mail of the day succeeding the last day of grace.' And in the case of the 
 Bank of Alexandria v. Swann, 9 Peters, 33, Mr. Justice Thompson approved 
 of the general rule laid down, in the case of Lenox v. Roberts, holding that 
 
CHAP. VIII.] PROCEEDINGS ON NON-PAYMENT. 415 
 
 next practicable post, in the sense of the rule ; for otherwise 
 the holder, or other party, could not have the entire day of 
 
 notice of the dishonor need not be forwarded on the last day of grace, but 
 should be sent by the mail of the next day after the dishonor. The same 
 rule was adopted by Mr. Justice Washington, in the case of the United 
 States V. Barker's Adm., 4 Wash. 465 ; and in which case, subsequently, 
 that decision was affirmed on error by the Supreme Court. 12 Wheat. 
 559. The same rule received the sanction of Mr. Justice Story, in the 
 case of the Seventh Ward Bank v. Hanrick, 2 Story, 416. Although, in 
 the case of Mitchell v. Degrand, 1 Mason, 180, he appears to have been 
 disposed to even greater strictness, holding that when a Bill is once dishon- 
 ored, the holder is bound to give notice by the next practicable mail to 
 the parties whom he means to charge for the default. This, however, is 
 explained by Mr. Justice Washington, in the case of U. States v. Barker's 
 Administrators, to mean that the notice should be put into the office in 
 time to be sent by the mail of the succeeding day. This rule, adopted 
 by the Supreme Court of the United States, and which is supported 
 by the great weight of authority in England and in the several States 
 of the Union, in which the question appears to have been settled by 
 reported adjudications, is subject to some qualification relaxing its rigor. 
 If two mails leave the same day on the route to the place of the residence 
 of the indorser, it is sufficient to deposit the notice in the post-office in time 
 to go by either mail of that day, inasmuch as the fractions of the day are 
 not counted. Whitwell v. Johnson, 17 Mass. 449, 454; Howard v. Ives, 1 
 Hill, 263. 
 
 " And for the reason that the mail of the day succeeding the day of the 
 default may go out in some places soon after midnight, or at a very early 
 hour in the morning, and is sometimes made up and closed the evening 
 preceding, it has been adjudged that, inasmuch as the holder is allowed till 
 the day after th.e day of default to send off the notice, reasonable diligence 
 would not require him to deposit the notice in the post-office at an unsea- 
 sonably early hour, or before a reasonable time can be had for depositing 
 the notice in the post-office after early business hoijrs of that day. The 
 rule, as qualified and settled by the late authorities, and which I take to be 
 the correct one, is, that where the parties reside in the same place or city, 
 the notice may be given on the day of default ; but if given at any time 
 before the expiration of the day thereafter, it will be sufficient ; and when 
 the parties reside in different places or States, the notice may be sent by 
 the mail of the day of the default ; but if not, it must be deposited in the 
 office in time for the mail of the next day, provided the mail of that day be 
 not made up and closed at an unreasonably early hour. If, however, the 
 mail of that day be closed before a reasonable time after early business 
 hours, or if there be no mail sent out on that day, then it must be deposited 
 in time for the next possible post. In the case of Downs v. Planters' Bank, 
 
416 PROMISSORY NOTES. [CHAP. VIH. 
 
 the dishonor to prepare his letter, or until the next day to 
 
 1 S. & M. 261 ; and also the case of Chick v. Pillsbury, 24 Maine, 458, the 
 doctrine on this subject has been more fully examined than perhaps 
 in any of the older cases ; and the rule adopted is, that the notice, in order 
 to charge the indorser, living in another place or State, must be deposited 
 in the post-office in time to be sent by the mail of the day succeeding the 
 day of the dishonor, providing the mail of that day be not closed at an 
 unreasonable early hour, or before early and convenient business hours. 
 And this rule is well sustained by authority. FuUerton et al. v. Bank of 
 U. States, 1 Pet. 605, 618; Eagle Bank v. Chapin, 3 Pick. 180, 183 ; Tal- 
 bot V. Clark, 8 Pick. 51 ; Carter v. Burley, 9 N. H. 559, 570 ; Farmers' 
 Bank of Maryland v- Duvall, 7 Gill & John. 79 ; Freeman's Bank v. Per- 
 kins, 18 Maine, 292 ; Mead v. Engs, 5 Cowen, 303 ; Sewall v. Russell, 3 
 Wend. 276 ; Brown v. Ferguson, 4 Leigh, 37 ; Dodge v. Bank of Kentucky, 
 
 2 A. K. Mar. 610 ; Hickman v. Ryan, 5 Littell, 24 ; Hartford Bank v. Sted- 
 man, 3 Conn. 489 ; Brenzer v. Wightman, 7 Watts & Serg. 264 ; Townsley 
 V. Springer, 1 La. 122; Bank of Natchez v. King, 3 Robinson, 243 ; Brown 
 V. Turner, 11 Ala. 752; Lockwood v. Crawford, 18 Conn. 363 ; Bayley on 
 Bills, 262; Story on Promissory Notes, § 325 ; and Byles on Bills, 160. 
 
 " Some obscurity and uncertainty have been created on this subject, by 
 the expression used in some of the cases, and by some of the elementary 
 writers, that the holder, or person giving the notice, has ' one day ' or ' an 
 entire day ' in which to give the notice, after the day of the dishonor. The 
 term one day or an entire day seems not to have been used always in the 
 same sense ; and the confusion appears to have in part arisen from the fact, 
 that, where the parties reside in the same place, notice at any time before 
 the expiration of the day after the day of the default will be sufficient; 
 while, where the parties reside in difi'ereut places, the notice must frequently 
 be mailed early in the day, to be in time for the mail of that day. 
 
 " The defendant in error relies upon the doctrine laid d(jwn in the ele- 
 mentary works of Chancellor Kent and Mr. Justice Story, as fully sustain- 
 ing the charge of the Court below. Inasmuch as precision and certainty, 
 in the settlement of this rule, are of very great importance, a cai'eful exam- 
 ination of the subject seems to be required. 
 
 " Chancellor Kent, whose accuracy in his Commentaries on American 
 Law is never to be questioned without grave consideration, in the late 
 editions of his works, 3 Kent, 106, states the rule as follows : ' According 
 to the modern doctrine, the notice must be given by the first direct and 
 regular conveyance. This means the first mail that goes after the day next 
 to the third day of grace ; so that, if the third day of grace be on Thursday, 
 and the drawer or indorser reside out of town, the notice may indeed be sent 
 on Thursday, but must be put into the post-office or mailed on Friday, so 
 as to be forwarded as soon as possible thereafter.' And in a note by the 
 learned author, explanatory of the text, it is said, that ' The principle that 
 
 t t 
 
CHAP. VIII.] PROCEEDINGS ON NON-PAYMENT. 417 
 
 put it in the post.^ A fortiori, there would be strong grounds 
 to contend for such an extension of the rule, where there is 
 
 ordinary reasonable diligence is suffiuient, and that the law does not regard 
 the fractions of the day in sending notice, will sustain the rule as it is now 
 generally and best understood in England and in the commercial part of 
 the United States, that notice put into the post-office on the next day, at 
 any time of the day, so as to be ready for the first mail that goes thereafter, 
 is due notice, though it may not be mailed in season to go by the mail of 
 the day next after the day of the default.' 
 
 " Several cases are cited by the learned author, but they do not sustain 
 his position. The case of Jackson u. Richards, 2 Gaines's Cas. 343, referred 
 to, is not in point; Haynes v. Birks, 3 Bos. & Pull. 601, decides that when 
 the Note fell due on Saturday, the notice sent by the post on Monday was 
 sufficient. Sunday being excluded and not talcen into the account, the 
 notice Wcis sent by the post of the next legal day. In the cases of Bray v. 
 Hadwen, 5 M. & S. 68, and Wright .v. Shawcross, 2 B. & Aid. 501, it was 
 decided that the notice, having arrived on Sunday, was to be considered as 
 having been received on Monday, and then the party had till Tuesday, the 
 next post-day, for giving the notice. In Geill v. Jeremy, 1 M. & M. 61, 
 where no mail went out on the day next after the day of the default, it was 
 held that the rule being an impossible one on that day, a notice sent 
 by the next succeeding mail-day would be in season. The case of Firth w. 
 Thrush, 8 B. & C. 387, turned upon the question whether the attorney em- 
 ployed to ascertain the residence of the defendant, should be allowed a day 
 to consult his client after information of the defendant's residence. And 
 Lord Tenterden said : ' If the letter (giving information of the defendant's 
 residence) had been sent to the principal, he would have been bound to 
 give notice on the next day.' The only other case referred to is that of 
 Hawkes v. Salter, 4 Bing. 715; and this is the only one which even tends 
 to sustain the position of the learned author. In that case the Bill was dis- 
 honored on Saturday, and the mail left at half past nine o'clock on Monday 
 morning ; and an unsuccessful attempt was made to prove that the notice 
 was put into the post-office on Tuesday morning. Best, C. J., expressed 
 himself clearly of opinion, ' that it would have been sufficient if the letter 
 had been put into the post-office before the mail started on the Tuesday 
 morning, but that there was no sufficient evidence that it had been put in 
 even on Tuesday morning.' The opinion in this case was, therefore, a 
 mere dictum, which determined nothing, the case being decided upon a 
 diflferent ground. 
 
 " But the position of Chancellor Kent, above referred to, is in direct con- 
 flict with the rule as laid down by himself in the first edition of his work. 
 
 ' Deminds v. Kirkman, 2 S. & M. 644. 
 27 
 
418 PROMISSORY NOTES. [CHAP. Vin. 
 
 not a reasonable time, left, between the knowledge of the dis- 
 honor and the closipg of the mail, which is to go out on the 
 
 In the edition of 1828, 3 Kent, 73, the rule is stated in these words : " Ac- 
 cording to the modern doctrine the notice mast be given by the first direct 
 regular convey£»nce. This means the first convenient and practicable mail 
 that goes on the day next to the third day of grace ; so that if the third day 
 of grace be on Thursday, and the drawer or indorser reside out of town, 
 the notice may indeed be sent on Thursday, but must be sent by the mail 
 that goes on Friday.' 
 
 " In the last edition of this work, published in 1851, the editor, Mr. Wil- 
 liam Kent, admits the weight of authority to be in favor of the rule as laid 
 down in Chick v. Pillsbury, and Downs v. Planters' Bank, above referred 
 to ; and he says, that ' The opinion of Ch. J. Best, in 4 Bing. 715, is the 
 only one that sustains the rule suggested, and that the observations of Mr. 
 Justice Story were too latitudinarian in allowing the entire whole day next 
 after the dishonor.' 
 
 " It is true, that Mr. Justice Story, in his work on Bills of Exchange, sec. 
 291, says, that an indorser need not give notice to his antecedent indorser 
 till twenty-four hours have elapsed after the receipt of his own notice of 
 the dishonor. And in his note to sec. 290, of the same work, the author 
 says, that ' The rule does not appear to be so strict as it is laid down by 
 Mr. Chitty, and that it would be more correct to say, that the holder is 
 entitled to one whole day to prepare his notice ; and that, therefore, it will 
 be sufficient, if he sends it by the next post that goes after twenty-four 
 hours from the time of the dishonor,' &c. And he adds : ' I have seen no 
 late case which imports a difiFerent doctrine ; on the contrary, they appear 
 to me to sustain it ; but as I do not know of any direct authority, which 
 positively so decides, this remark is merely propounded for the considera- 
 tion of the learned reader.' 
 
 " It is not necessary here to inquire whether the position taken by the 
 learned author is in conflict with the decisions made by himself in' 1 Ma- 
 son, 180, and 2 Story, 416, above referred to. In his same work, on Bills 
 of Exchange, he has stated the rule with great precision and accuracy in 
 the following language, in sec. 382 : ' In all cases where notice is required 
 to be given, it is sufficient, if the notice is personal, that it is given on the 
 day succeeding the day of the dishonor, early enough for the party to re- 
 ceive it on that day. If sent by the mail, it is sufficient if it is sent by the 
 mail of the next day, or the next practicable mail.' And in sec. 288 : ' If 
 the post or mail leaves the next day after the dishonor, the notice should be 
 sent by that post or mail, if the time of its closing or departure is not at too 
 early an hour to disable the holder from a reasonable performance of the 
 duty. So that the rule may be fairly stated in more general terms to be, 
 that the notice is in all cases to be sent by the next practicable post or mail 
 
CHAP. VIII.] PEOCEEDINGS ON NON-PAYMENT. 419 
 
 next morning, to prepare such notice, without neglecting all 
 
 after the day of the dishonor, having a due reference to. all the circum- 
 stances of the case.' 
 
 " The same learned author has laid down the rule very fully to the same 
 effect in his work on Promissory Notes, sec. 324. 
 
 " The statement of the rule in the last extract is consistent with the doc- 
 trine established by the Supreme Court of the United States, and fully 
 sustained by authority. 
 
 " The discrepancies which have arisen on this subject appear to have 
 grown out of an inaccurate use, in some of the books and decisions, of .the 
 terms, ' his day,' ' an entire day,' and ' a whole day,' &c. ; these phrases 
 being at one time understood or taken literally, and at another time to 
 mean a space of time equal to a full day. If these phrases are to be taken 
 to mean the duration of a full day instead of the day itself, in their general 
 application, the effect would be to change and break down numerous well- 
 settled and useful rules. The law, as a general thing, does not have regard 
 'to the fractions of a day, and thus compel parties to resort to nice questions 
 of the sufficiency of a certain number of hours or minutes, and to the 
 taking of the parts of two different days to make up what may be con- 
 sidered in one sense a day, because equal in duration to one entire day. 
 If this were the case, the indorser, after having been notified, would often 
 be unable to determine whether he had been notified in season or not, until 
 he had learned the hour of the day when the default occurred ; and the 
 holder would have it in his power, at times, of affecting, injuriously, the 
 right of the indorser to an early notice, by delaying the presentment until 
 a late hour in the day. Nothing more could have been intended by the 
 use of these phrases than that each party should have a specified day upon 
 which the act enjoined upon him should be performed. This is the sense 
 in which Lord EUenborough used it in the case of Smith v. Mullett, 2 
 Camp. 208, when he said : ' If a party has an entire day he must send oft 
 his letter conveying the notice within post time of that dgy.' And it is 
 said by a learned elementary author : ' If a party has an entire day, he must 
 send off his letter conveying the notice of the dishonor of the Bill within 
 post time of that day.' Byles on Bills, 161. 
 
 " The rule laid down in Smith's Mercantile Law, to which the defend- 
 ant in error' has referred, will not, as I apprehend, be found on close exam- 
 ination to be at variance with the doctrine here adopted. Smith's Mer- 
 cantile Law, 310. 
 
 " It is claimed, on behalf of the plaintiffs in error in this case, that the 
 notice of the dishonor of the Bill should have been sent immediately to 
 them, instead of being sent, as it was in the first place, to the Bank of Sa- 
 lem. The holder is not bound to give notice of the dishonor to any more 
 than his immediate indorser. And each party to a Bill has the same time, 
 after notice to himself, for giving notice' to other parties beyond him, that 
 
420 PEOMISSORY NOTES. [CHAP. VIII. 
 
 other engagements and business.^ [And it has been held 
 that if the notice is put into the mail at nine o'clock, A. M., 
 
 was allowed to the holder after the default. Sheldon v. Benham, 4 Hill, 
 129 ; Eagle Bank v. Plathaway, 5 Met. 213. And when a Bill is sent to 
 an agent for collection, the agent is required simply to give notice of the 
 dishonor in due time to hia principal ; and the principal then has the same 
 time for giving notice to the indorsers, after such notice from his agent, as 
 if he had been himself an indorser receiving notice from a holder. Bank of 
 the U. States v. Davis, 2 Hill, 452 ; Church v. Barlow, 9 Pick. 547. The 
 party in this case, therefore, was not at fault by sending the notice directly 
 to the Bank of Salem, leaving that bank to send the notice to the plaintiffs 
 in error. 
 
 " Applying the rule, therefore, which we have adopted as the correct 
 one, to this case, it was incumbent on the plaintiff' below, in order to be 
 entitled to a recovery, to show that the notice of the dishonor of the Bill 
 was deposited in the post-office in Pittsburg, in time to be sent by the 
 mail of the 28th day of July. Ten minutes past nine o'clock, in the morn- 
 ing, was not an unreasonably early hour, or before a reasonable and con- 
 venient time after the commencement of early business hours of the day. 
 The neglect, therefore, to send the notice by the mail of the next day after 
 the day of the default, operated to discharge the plaintiffs in error as in- 
 dorsers, unless, from some other cause, notice had been dispensed with, or 
 rendered unnecessary." See also Mitchell v. Cross, 2 B,. I. 437; Burgess 
 V. Vreeland, 4 Zabr. 71 ; Stephenson v. Dickson, 24 Penn. St. 148. 
 
 ' Story on Bills, § 288. To such a case, the language of Mr. Justice 
 Lawrence, in Darbishire v. Parker, 6 East, 3, 9, 10, seems properly to ap- 
 ply. He there said : " The question, in this case, is not whether notice of 
 the dishonor of a Bill must be communicated by the next post after it is 
 received, but whether the party may omit to make such communication for 
 the two next posts ? for here it appears, that no notice was given to the 
 drawer till after the time when the second post would have conveyed it. 
 Whenever the general question shall arise, it will be fit, according to what 
 was said by Lord Mansfield in Tindall v. Brown, to lay down, with as 
 much certainty as possible, some general rule with respect to the reason- 
 ableness of notice. The general rule, as collected from that and other 
 cases, seems to be, with respect to persons living in the same town, that 
 the notice shall be given by the next day ; and, with regard to such as live 
 at different places, that it shall be sent by the next post ; but if in any 
 particular place the post should go out so early after the receipt of the in- 
 telligence as that it would be inconvenient to require a strict adherence to 
 the general rule, then, with respect to a place so circumstanced, it would 
 not be reasonable to require the notice to be sent till the second post. 
 Considering the immense circulation of paper in this kingdom, it is very 
 material to have some general rule by which men may know how they are 
 
CHAP. VIII.] PEOCEEDINGS ON NON-PAYMENT. 421 
 
 on Saturday morning, being the next day after the dishonor, 
 it is sufficient, although the only mail on that day for the 
 
 to act in these cases, leaving parties in particular cases, where compliance 
 with such rule cannot be reasonably expected, to account for their non- 
 compliance with the strict rule. When it is said to be strange, that notice 
 given the next day to persons living in the same town should be sufficient, 
 and yet that notice should be required to be sent by the next post on the 
 same day to persons living at another place, it must be considered not 
 merely when it is sent, but when it is received by the persons who are to 
 act upon it. Marius, and other general writers, say, that the notice ought 
 to be transmitted by the next post after it is received ; and what was said 
 by some of the judges in Tindall v. Brown, and in other cases, agrees with 
 this. As to whether reasonable notice be a question of law or fact, it must 
 be recollected, that the facts stated in the report of Tindall v. Brown were 
 afterwards found in a special verdict, in which the jury did not find 
 whether the notice were reasonable or not ; on which special verdict this 
 Court gave judgment for the plaintiff, and that judgment was unanimously 
 confirmed in the Exchequer Chamber." The very point seems to have 
 been adjudged by the Supreme Court of the United States in Bank of 
 Alexandria v. Swann, 9 Pet. (U. S.) 33. Mr. Justice Thompson, in de- 
 livering the opinion of the Court upon that occasion, said : " The general 
 rule, as laid down by this Court in Lenox v. Roberts, 2 Wheat. 3 73, is, that 
 the demand of payment should be made on the last day of grace, and no- 
 tice of the default of the maker be put into the post-office early enough 
 to be sent by the mail of the succeeding day. The special verdict in the 
 present case finds, that, according to the course of the mail from Alexan- 
 dria to the city of Washington, all letters put into the mail before half-past 
 eight o'clock, P. M., at Alexandria, would leave there some time during 
 that night, and would be deliverable at Washington the next day, at any 
 time after eight o'clock, A. M. ; and it is argued, on the part of the defend- 
 ant in error, that, as demand of payment was made before three o'clock, 
 P. M., notice of the non-payment of the Note should have been put into the 
 post-office on the same day it was dishonored, early enough to have gone 
 with the mail of that evening. The law does not require the utmost possi- 
 ble diligence in the holder in giving notice of the dishonor of the Note ; all 
 that is required is ordinary reasonable diligence ; and what shall constitute 
 reasonable diligence ought to be regulated with a view to practical con- 
 venience, and the usual course of business. In the case of the Bank of 
 Columbia v. Lawrence, 1 Pet. 583, it is said by this Court to be well settled 
 at this day, that, when the facts are ascertained, and are undisputed, what 
 shall constitute due diligence is a question of law ; that this is best calcu- 
 lated for the establishment of fixed and uniform rules on the subject, and is 
 highly important for the safety of holders of commercial paper. The law, 
 generally speaking, does not regard the fractions of a day ; and, although 
 
422 PROMISSORY NOTES. fCHAP. YID. 
 
 indorser's residence closed at five, A.M. And so, where the 
 only daily mail from the place of demand to the residence of 
 the indorser closes at three o'clock, A.M., notice of the dis- 
 honor sent by the mail of the second day after demand is 
 sufficient.^] 
 
 § 326. The benefit of this rule is not confined to a mere 
 holder for value, but it applies, also, to a holder who acts as 
 a mere agent for another person. Thus, if a Note has been 
 transmitted by the holder to an agent or banker, for the pur- 
 pose of procuring payment thereof at its maturity, such agent 
 or banker will be entitled to the same time to give notice of 
 the dishonor to his principal or customer as if he were him- 
 self the real holder for value ; and the principal or customer 
 will be entitled, after he receives such notice from his agent 
 or banker, to the like time to communicate notice to the 
 antecedent parties, whom he means to charge, as if he were 
 
 the demand of payment at the bank was required to be made during bank- 
 ing hours, it would be unreasonable, and against what the special verdict 
 finds to have been the usage of the bank at that time, to require notice of 
 non-payment to be sent to the indorser on the same day. This usage of 
 the bank corresponds with the rule of law on the subject. If the time 
 of sending the notice is limited to a fractional part of a day, it is well ob- 
 served by Chief Justice Hosmer, in the case of the Hartford Bank v. Sted- 
 man and Gordon, 3 Conn. 495, that it will always come to a question, how 
 swiftly the notice can be conveyed. We think, therefore, that the notice 
 sent by the mail, the next day after the dishonor of the Note, was in due 
 time." Mr. Chitty uses language not quite so explicit. He says : " When 
 the parties do not reside in the same place, and the notice is to be sent by 
 the general post, then the holder or party to give the notice must take care 
 to forward notice by the post of the next day after the dishonor, or after he 
 received notice of such dishonor, whether that post sets oiF from the place 
 where he is, early or late ; and if there be no post on such next day, then 
 he must send off notice by the very next post that occurs after that day ; 
 but he is not legally bound, on account of there being no post on the day 
 after he receives notice, to forward it on the very day he receives it." 
 Chitty on Bills, ch. 10, pp. 517, 518 (8th edit.;. See also Story on Bills, 
 §§ 288 - 290, 382, 383 ; Wright v. Shawcross, 2 B. & Aid. 501 ; Bray v. 
 Hawden, 5 M. & S. 68. See Moore v. Burr, 14 Ark. 230 ; Davis v. Han- 
 ley, 7 English, 645. 
 ' Stephenson v. Dickson, 24 Penn. St. 148. 
 
CHAP. VIII.] PKOCEEDINGS ON NON-PAYMENT. 423 
 
 an indorser, and had received the notice from the real holder 
 for value, and not from his own agent or banker.^ In short, 
 for all the purposes of the law, the agent or banker is, in 
 such cases, treated as substantially a distinct and indepen- 
 dent holder. Indeed, upon any other ground it would be 
 impracticable for the real holder, in many cases, to make 
 due presentment, and give due notice of the dishonor of the 
 Note, so as to charge the antecedent indorsers, especially if 
 he lived at a distance from the place where the presentment 
 and dishonor took place. And for the purposes of this rule, 
 and within its scope, are deemed all cases where a bank has 
 different branches established in different places, and a bill 
 is sent from the one to the other for collection ; for in such 
 cases each of the branches will be deemed to be independent 
 indorsers, and each be entitled to the usual notice of dis- 
 honor, and entitled to give notice to paramount parties 
 accordingly. 2 
 
 § 327. We have said that the notice, when sent by the 
 post, should be sent by the post of the next day, or by the 
 next post after the day of the dishonor, or notice of the dis- 
 honor.* And this is regularly true, where the residence of 
 
 • Bayley on Bills, oh. 7, § 2, pp. 272, 273 (5tli edit.) ; Chitty on Bills, 
 ch. 10, pp. 521, 522 (8th edit.) ; Story on Bills, § 292; Haynes v. Birks, 
 3 Bos. & Pul. 599 ; Lawson v. Farmers' Bank, 1 Ohio St. 206 ; Clode v. 
 Bayley, 7 Jurist, 1092 ; Scott v. Lifford, 9 East, 347 ; Langdale v. Trimmer, 
 15 East, 291 ; Howard v. Ives, 1 Hill, 263 ; Colt v. Noble, 5 Mass. 167 ; 
 Church V. Barlow, 9 Pick. 547, 549 ; Ogden v. Dobbin, 2 Hall, 112 ; United 
 States Bank v. Goddard, 5 Mason, 366 ; Mead v. Engs, 5 Cowen, 303 ; 3 
 Kent, Lect. 44, p. 108 (5th edit.). See Sewall v. Kussell, 3 Wend. 276 ; 
 Bank of Orleans v. Smith, 3 Hill, 560 ; Bank of United States v. Davis, 2 
 Hill, 451 ; Farmers' Bank v. Vail, 21 N. Y. 485. But to the contrary is, 
 In re Leeds Banking Co., ex parte Prange, Law Kep. 1 Eq. 1. 
 
 2 Clode V. Bayley, 12 M. & W. 51. 
 
 ' Ante, § 324. [In Manchester Bank v. Fellows, 8 Foster, 302, which was 
 upon a draft, Eastman, J. said : " This draft was dated at Boston, August 
 20, 1851, and was payable to the order of the defendant in thirty days. 
 The last day of grace was, consequently, the 22d day of September, the 
 day of the date being excluded in the computation. On that day, a notary- 
 public, at Boston, duly presented the draft to Kimball, the drawee, by 
 
424 PBOMISSOEY NOTES. [CHAP. VIH. 
 
 the party entitled to notice is known ; but, as we shall pres- 
 ently see, more time is allowed where the residence is un- 
 
 whom it had been accepted for payment ; and payment being refused, he, 
 on the same day, gave verbal notice of the non-payment to the drawers, 
 Montgomery & Co., who also resided in Boston, and likewise put into the 
 post-oflSoe a written notice thereof in due form, directed to the cashier of 
 this bank, the plaintiffs, by whom the draft had been indorsed, after the 
 defendant, and enclosed a similar notice for the defendant. These were 
 received by the cashier on the next day, the 23d, and he, on the same day, 
 directed the notice enclosed for the defendant, to him, and put it into the 
 post-office in Manchester, at which the defendant received his letters, though 
 residing about four miles therefrom, in Manchester. Was this a legal no- 
 tice to Fellows, the defendant, of the non-payment of the Bill ? 
 
 " The draft had been indorsed by Fellows, who was the payee, to the 
 plaintiffs, and by them also indorsed, it does not appear to whom, but prob- 
 ably to some bank in Boston, for the purposes of collection ; or the money 
 may have been advanced to the plaintiffs at Boston. The Bill was made 
 and held at Boston, and payment was there regularly demanded by the 
 drawee, and notice of non-payment given to the drawers. This being done, 
 the legal course then to be taken by the notary — the holder and indorsers 
 residing in different towns — was to send notice of the non-payment 
 through the mail to the indorsers. Probably the notary was not acquainted 
 with ,the residence of Fellows, and so made out a notice to the bank, and 
 likewise one for Fellows, and sent them both to the cashier of .the bank. 
 This was done on the 22d, the third day of grace, after demand and refusal, 
 and, according to the authorities was, so far as the bank was concerned, 
 the proper time and manner in which to give the notice so as to charge the 
 bank. 
 
 " Upon the dishonor of a Bill or Note, where the parties to it reside in 
 different places, it is sufficient if the holder puts a notice to the indorser 
 into the post-office, in season to be transmitted by the mail of the next day ; 
 and each indorser may, in^ like manner, transmit a notice to his prior in- 
 dorser by the mail of the day succeeding that on which he receives notice. 
 But if the party receiving notice cannot, by the exercise of reasonable 
 diligence, forward notice to a prior party by the mail of the day following, 
 it will be sufficient if sent by the next mail. Carter v. Burley, 9 N. H. 
 568 ; Lenox v. Roberts, 2 Wheat. 273 ; Robinson v. Ames, 20 John. 146 ; 
 Talbot V. Clark, 8 Pick. 84 ; Hartford Bank v. Stedman, 3 Conn. 495 ; 
 Ohio Life and Trust Company v. McCague, 18 Ohio, 54. 
 
 " And the holder may, if he pleases, forward a notice on the day of the 
 dishonor ; and any prior party receiving notice may transmit a notice on 
 the day he receives one ; and should any party do so, it will not enlarge 
 the time allowed to any other party. Carter v. Burley, 9 N. H. 558 ; 
 Smith V. Little, 10 N. H. 526 ; Bank of Alexandria v. Swann, 9 Pet. (U. S.) 
 
CHAP. VIII.] PKOCEEDINGS ON NON-PAYMENT. 425 
 
 known, and inquiries are necessary to be made to ascertain 
 it before any letter can safely be put into the post.^ At 
 
 33; Bayley on Bills, 171; Burbridge u. Manners, 3 Camp. 193; Greeley 
 V. Thurston, 4 Greenl. 479 ; Shedd v. Brett, 1 Pick. 401 ; Bussard v. Lev- 
 ering, 6 Wheat. 102. 
 
 " Where Notes and Bills are payable at a bank, the common practice, 
 with many, is to make a demand on the last day of grace, and if payment 
 is not made, and the parties reside in the same place with the bank, to no- 
 tify the indorsers after bank hours, either personally or by leaving a notice 
 at their residence or place of business, and if the indorsers reside in other 
 towns, to deposit a notice after bank hours in the pcst-office, duly directed ; 
 and this, we think, is the proper rule upon the subject, where the paper is 
 payable at a bank. The rule, where no particular place of payment is 
 fixed by the Bill, has been sufficiently indicated. 
 
 " The notice, then, to these plaintiffs was legally given, so as to bind 
 them to the holder, if the draft had been cashed for the plaintiffs ; but was 
 it sufficient to charge the defendant ? According to the authorities which 
 we have cited, and which we regard as good law, the notice was no doubt 
 deposited in the post-office in Boston in time, but the authorities are not so 
 numerous or distinct in regard to the correct rule to be adopted after the 
 notice reached Manchester. 
 
 " Where the residence of the holder and that of the party to be notified 
 is in the same town or city, it is not sufficient to put a notice into the post- 
 office ; personal notice must be given, or the notice must be left at his resi- 
 dence or place of business. Green v. Darling, 15 Maine, 141 ; Smedes v. 
 Utica Bank, 20 John. 372; Shepherd v. Hall, 1 Conn. 429; Bowling v. 
 Harrison, 6 How. (U. S.) 248 ; Hyslop v. Jones, 3 McLean, 96 ; Foster v. 
 Sineath, 2 Rich. 338. 
 
 " But if it should be shown that a notice, put into the post-office where 
 the parties were so situated, was actually received in due time, it would 
 seem to be sufficient. Hyslop v. Jones, 3 McLean, 96 ; Foster v. Sineath, 
 2 Kich. 338 ; Hill v. Norvell, 3 McLean, 383. 
 
 " It becomes important, then, to determine who is the holder of the Bill 
 at the time notice is given ; since if the holder and party to be notified are 
 residents of different towns, it may be given through the mail ; but, if resi- 
 dents of the same town, it shdUld be done, as we have seen, by personal 
 notice, or by being left at the residence or place of business of thfe party. 
 
 " In Bowling v. Harrison, 6 How. (U. S.) 248, it was held that the bank 
 at which a Note is made payable, and holding the Note for collection, and 
 the notary, having it as agent of the owner, for the purpose of making 
 demand and protest, are ' holders ' within the meaning of the rule that, 
 where the holder and indorser reside in the same place, personal notice to 
 
 ' Post, § 335. 
 
426 PROMISSORY NOTES. [CHAP. Vni. 
 
 present let us refer to the language, that it is sufficient for 
 the notice to be sent by the next post. And this is most 
 
 the indorser of the dishonor of the Note, or written notice left at his dwell- 
 ing-house, is necessary to bind them. 
 
 " So, in Freeman's Bank v. Perkins, 18 Maine, 292, it was decided, that, 
 where an indorsed Bill is sent to a bank for collection, although the bank 
 has no interest in it, yet, for the purposes of making a demand and of trans- 
 mitting notices, they are to be considered the real holders. 
 
 " To the same effect are Mead v. Engs, 5 Cowen, 308 ; Warren v. Gil- 
 man, 17 Maine, 360 ; Ohio Life and Trust Co. v. McCague, 18 Ohio, 54. 
 And we see no reason to question the correctness of these decisions. The 
 object of notice is to inform the indorser that the Bill has been dishonored, 
 and that he must govern himself accordingly. The Bill may have passed 
 through several hands, and it is not material for the party to know who 
 owns it, but that it has not been paid. It may be necessary to charge 
 several parties or indorsers, and the most practicable mode appears to be 
 that the notices shall come from the last holder, whatever may be the object 
 of its being with him, whether as owner or agent, for the purpose of giving 
 the notices. 
 
 " The draft in suit was therefore held in Boston, and the notice to the 
 defendant would properly come to him from that city through the mail. 
 Still, the question recurs, could it be legally sent by the notary to the 
 cashier of the plaintiffs' bank in the manner in which it was, and be by him 
 directed and put into the post-office, so as to charge the defendant ? If it 
 were the plaintiffs who were giving the notice at Manchester (as we have 
 seen they might have done after notice to them), it is clear that it could 
 not be so done, because they reside in the same city. But that was not the 
 case. It was the holder at Boston who was giving the notice, and he un- 
 doubtedly directed it according to his best information. The cashier at 
 Manchester, on taking the notice from the office, made no alteration in it. 
 He simply completed the direction, and replaced it in the post-office. The 
 notice was thus ready for the defendant in the post-office at Manchester, 
 properly directed, at the same time and in the same manner that it would 
 have been had the direction been completed at Boston. And we think this 
 was sufficient. The notice came from the notary at Boston, and what- 
 ever the cashier did was done as the agent of the notary. 
 
 " The ease of Warren v. Gilman, 17 Maine, 360, appears to have been 
 very near, if not exactly, parallel in its facts with the one before us, and 
 the notice was there held to be sufficient. In that case a Bill was indorsed 
 to a bank in Bangor, and by that bank indorsed and transmitted to a bank 
 in Boston for collection ; and by direction of the latter bank was duly pre- 
 sented there for payment by a notary, and notices thereof and of non-pay- 
 ment were immediately made out by him to all the prior parties, and 
 transmitted by the first mail to the cashier of the Bangor bank, who took 
 
CHAP. Vni.] PROCEEDINGS ON NON-PAYMENT. 427 
 
 material to be considered, in cases where the post does not 
 go out every day, but only every other day, or every third 
 day, or even once a week only, as formerly happened in many 
 of the country towns in the United States, and now exists 
 between sparse and scattered settlements. In all cases of 
 this sort, it will be sufficient that a letter is put into the post- 
 office early enough after the day of the dishonor of the Note 
 to go by the next post, whether it be a bi-weekly or tri-weekly, 
 or a mere weekly conveyance, if it be the ordinary mode of 
 communication.! Hence, if the dishonor, or notice thereof 
 to the holder, is on Monday, and the post does not again go 
 out until Wednesday, to the place where the party entitled 
 to notice lives, it will be sufficient that it is put into the post- 
 office early enough to *go by the post of that day. 
 
 § 328. And here again it is important to state, that, if the 
 notice be put into the post-office to go by the proper post, it 
 is wholly immaterial to the rights of the holder whether it 
 actually goes by the proper post, or whether it ever reaches 
 the party entitled to notice, or not. All that the law requires 
 of the holder is due diligence to send the notice within the 
 proper time ; and he has done his whole duty when he puts 
 it into the proper post-office in due season, and it is properly 
 directed. The holder has no control over the acts, or opera- 
 tions, or conduct, of the officers of the post-office, and is not 
 
 them from the post-office on the morning of their arrival, and directed one 
 to the indorser, then a resident of that city, and immediately replaced it in 
 the post-office. It was held, that, as the notice came from the notary in 
 Boston, this mode of transmitting it was sufficient. 
 
 " It would perhaps be difficult to distinguish that case from this. The 
 learned Chief Justice Weston, in the course of the opinion delivered in 
 that case, remarked that, the notice coming from the notary, the post-office 
 was a proper channel of communication ; and that ' whatever strictness of 
 construction, on the question of notice, may have obtained upon some points, 
 it appears to us that the notice to the defendant is sufficiently made out, by 
 proving that, having been prepared and duly forwarded by the notary, it 
 was ready for him, properly directed, at the post-office in Bangor, on the 
 morning of the 5th of August.' "] 
 
 ' Post, § 331, note. 
 
428 PROMISSORY NOTES. [CHAP. VIU. 
 
 responsible for the accidentSy or neglects, which may pre- 
 vent a due delivery of the notice to the party entitled to 
 notice.^ 
 
 § 329. We have already seen, that, where there are joint 
 indorsers entitled to notice, notice to one is not notice to all ; 
 but that each is entitled to a sepa^te and independent notice, 
 in order to bind him, exactly as if he were the sole and single 
 indorser.2 The result of this rule is, that, where joint indors- 
 ers reside in different towns and citie^, at different distances 
 from the place of the dishonor, or place where the notice 
 thereof is dated, or to be given, the notice may reach one of 
 the joint indorsers long before it does the other. But this 
 circumstance will make no difference in the rights of the 
 holder ; for he has performed his whcde duty, and exercised 
 reasonable diligence, and his rights are complete and perfect, 
 although the notice should not have reached both or even 
 either of the joint indorsers.^ 
 
 § 330. The holder may, when the Note has been dishon- 
 ored, either resort to his immediate indorser, and then he 
 must give him notipe within the proper time, or he may resort 
 to any or all of the other indorsers, in which case he must 
 give them notice respectively, in the same manner as if each 
 were the sole indorser ; * for the holder is not entitled to as 
 
 ' Story on Bills, § 300 ; Chitty on Bills, ch. 10, pp. 503, 504 (Sth edit.) ; 
 Bayley on Bills, ch. 7, § 2, p. 279 (5th edit.) ; Saunderson v. Judge, 2 H. 
 Black, 509 ; Dobree v. Eastwood, 3 C. & P. 250 ; Kufh v. Weston, 3 Esp. 
 64 ; 3 Kent, Lect.44, pp. 106, 107 (5th edit.) ; Shed v. Brett, 1 Pick. 401 ; 
 Munn V. Baldwin, 6 Mass. 316 ; Jones v. Wardell, 6 Watts & Serg. 399 ; 
 Smyth V. Hawthorne, 3 Rawle, 356 ; Bank of Columbia v. Lawrence, 1 
 Peters, 578, 583; Thomson on Bills, ch. 6, §§4,475 (2d edit); Stocken 
 V. Collin, 7 M. & W. 515 ; Woodcock v. Houldsworth, 16 Ibid. 124 ; Sasscer 
 V. The Farmers' Bank, 4 Maryland, 409 ; Mt. Vernon Bank v. Holden, 2 
 E. I. 467 ; Windham Bank v. Norton, 22 Conn. 213 ; Grinman v. Walker, 
 9 lo. 426 ; Nevins v. Bank, 10 Mich. 547 ; Loud v. Merrill, 45 Maine, 516 ; 
 Marshall v. Baker, 3 Min. 320. 
 
 ' Ante,^ 308; Shepard v. Hawley, 1 Conn. 367; Bank of Chenango w. 
 Boot, 4 Cowen, 126 ; Willis v. Green, 5 Hill, 232. 
 
 = Ante, § 328. 
 
 * Eowe V. Tipper, 20 Eng. Law. & Eq. 220, and Bennett's note. 
 
CHAP. Vin.] PROCEEDINGS ON NON-PAYMENT. 429 
 
 many days to give notice as there are prior indorsers ; but 
 each indorser has his own day.^ If, therefore, there are five 
 indorsers, and the holder should not give notice to the first 
 indorser until five days, that will be too late ; and, unless 
 some subsequent indorser has given him notice in due time, 
 who has himself received due notice, such first indorser 
 will be discharged from all liability to the holder.^ In this 
 respect, the French law seems to be in entire conformity 
 to ours.^ 
 
 § 331. Hitherto we have spoken principally of the notice 
 of the dishonor, to be given by the holder of the Note to the 
 indorser. But in many cases there are numerous successive 
 indorsers on the Note, each of whom is, or may be, entitled 
 to notice, and each of whom is bound equally to give notice 
 to the antecedent indorsers, who are liable to indemnify him 
 if he should pay the Note after due notice of the dishonor 
 from tlie holder. The question, in such a case, naturally 
 arises, within what time, after receiving such notice of the 
 dishonor from the holder, is the indorser bound to give notice 
 thereof to the antecedent indorsers upon the Note, whom he 
 means to hold liable to reimburse him ? The general rule, 
 now firmly established, is, that each successive indorser, who 
 receives notice of the dishonor, is entitled to the whole day 
 on which he receives the notice, and need not give any notice 
 to the antecedent indorsers until the next day after receiving 
 the notice, even when they live in the same town or city with 
 
 ' Bayley on Bills, ch. 7, § 2, p. 275 (5tli edit. 1830) ; Chitty on Bills, 
 ch. 10, p. 522 (8th edit. 1833) ; Dobree v. Eastwood, 3 C. &P. 250 ; Marsh 
 V. Maxwell, 2 Camp. 210; Turner v. Leech, 4 B. & Aid. 451 ; Etting v. 
 Schuylkill Bank, 2 Barr, 355. 
 
 ' Bayley on Bills, ch. 7, § 2, p. 275 (5th edit. 1830) ; Chitty on Bills, ch. 
 10,.pp. 522, 627 (8th edit. 1833) ; Marsh v. Maxwell, 2 Camp. 210 ; Dobree 
 V. Eastwood, 3 C. & P. 250 ; Turner v. Leech, 4 B. & Aid. 451 ; Rowe v. 
 Tipper, 20 Eng. Law & Eq. 220; United States Bank v. Goddard, 5 
 Mason, 366. See Story on Bills, §§ -303, 304 ; ante, §§ 301-303. 
 
 ' Pardessus, Droit Comm. Tom. 2, art. 429, 430 ; Chitty on Bills, ch. 10, 
 p. 523, note (a). See Code de Comm. art. 165 ; Pothier, De Change, 
 n. 148, 152, 153. 
 
430 PKOMISSOEY NOTES. [CHAP. Vm. 
 
 him ; and, if they live in different towns and cities, and he is 
 to give notice by the post, it will be sufficient if he sends ttie 
 notice by the post of the next day after he has himself re- 
 ceived notice of the dishonor.^ Thus, for example, if there 
 
 ' Bayley on Bills, ch. 7, § 2, pp. 268-270 (5tli edit.); Chitty on Bills, 
 ch. 10, pp. 513 - 515, 518, 520, 521 (Sth edit.) ; Story on Bills, §§291, 294 ; 
 Hilton V. Shepherd, 6 East, 14 ; Smith v. MuUett, 2 Cainp. 205 ; Bray v. 
 Hadwen, 5 M. & S. 68 ; Wright v. Shawcross, 2 B. & Aid. 501 ; Hawkes 
 V. Salter, 4 Bing. 716 ; 3 Kent, Lect. 44, pp. 106, 107 (5th edit.) ; Lenox 
 V. Koberts, 2 Wheat. 373 ; Bank of Alexandria v. Swann, 9 Peters, 33 ; 
 Howard u. Ives, 1 Hill, 263. Mr. Chitty (pp. 620, 521) on this subject 
 says : " It is usual for the holder only to give notice to the person from 
 whom he immediately received the Bill or Note, especially if he is ignorant 
 of the residence of the other parties ; and, if so, his neglect to give notice 
 to the other prior indorsers and to the drawer cannot, on any sound prin- 
 ciple, deprive either of the indorsers of the right to proceed against the 
 person who indorsed to him, and all prior parties, provided he, in his turn, 
 has duly forwarded notice. The rule is therefore clearly settled, that each 
 party to a Bill or Note, whether by indorsement or mere delivery, has in all 
 cases until the day difter he has received notice to give or forward notice to 
 his prior indorser, and so on till the notice has reached the drawer. And 
 this rule is so strongly, fixed, that a party receiving notice of the dishonor 
 of a Bill need not give or forward notice to the party immediately before 
 him till the next post after the day on which he himself received notice, 
 although he might easily have forwarded it on that day, and although there 
 Is no post on the day following. The reasons on which this rule is founded 
 are the same as those applicable to the first notice of dishonor. Therefore, 
 where a Bill of Exchange passed through the hands of five persons, all of 
 whom lived in London or the neighborhood, and the Bill, when due, being 
 dishonored, the holder gave notice on the same day to the fifth indorser, 
 and he, on the next day, to the fourth, and he, on the next day, to the 
 third, and he, on the next day, to the second, and he, on the same day, 
 to the first, the Court were of opinion, on a case finding these facts, that 
 due diligence had been used ; indeed, both the first and last notices were 
 given a day sooner than was requisite. The usual expression is, ' each in- 
 dorser has a day,' and this is strictly correct when all the parties live in 
 London ; but where they reside in different distinct parts of the country, 
 then, according to the course of the past, frequently several days may in- 
 tervene between each." The whole doctrine on this subject is very accu- 
 rately and succinctly summed up in 3 Kent, Lect. 44, p. 105 (5th edit.). It 
 is there said : " The elder cases did not define what amounted to due dili- 
 gence, in giving notice of the dishonor of a Bill, with that exactness and cer- 
 tainty which practical men and the business of life required. According 
 
CHAP. VIII.] PROCEEDINGS ON NON-PAYMENT. 431 
 
 are five indorsers, the holder himself, if he means to give 
 notice to all of them, must give it by the post of the next day, 
 
 to the modern doctrine, the notice must be given by the first direct and 
 regular conveyance ; and if to the drawer, it must be according to the law 
 of the place T^here the Bill was drawn ; and if to the indorsers, according 
 to the law of the place where the respective indorsements were made. 
 This means the first mail that goes after the day next to the third day of 
 grace ; so that, if the third day of grace be on Thursday, and the drawer 
 or indorser reside out of town, the notice may, indeed, be sent on Thurs- 
 day, but must be put into the post-office or mailed on Friday, so as to be 
 forwarded as soon as possible thereafter ;, and if the parties live in the same 
 town, the rule is the same, and the notice must be sent by the penny-post, 
 or placed in the office on Friday. The law does not require excessive dili- 
 gence, or that the holder should watch the post-office constantly for the 
 purpose of receiving or transmitting notices. Reasonable diligence and 
 attention is all that the law exacts ; and it seems to be now settled, that 
 each party successively into whose hands a dishonored Bill may pass shall 
 be allowed one entire day for the purpose of giving notice. If the demand 
 be made on Saturday, it is sufficient to give notice to the drawer or indorser 
 on Monday ; and putting the notice by letter into the post-office is suffi- 
 cient, though the letter should happen to miscarry. If the holder uses the 
 ordinary mode of conveyance, he is not required to see that the notice is 
 brought home to the party. Nor is it necessary to send by the public mail. 
 The notice may be sent by a private conveyance or special messenger, and 
 it would be good notice though it should happen to arrive on the same day 
 a little behind the mail. Where the parties live in the same town, and 
 within the district of the letter-carrier, it is sufficient to give notice by let- 
 ter through the post-office. If there be no penny-post that goes to the 
 quarter where the drawer lives, the notice must be personal, or by a special 
 messenger sent to his dwelling-house or place of business, and the duty of 
 the holder does not require him to give notice at any other place. The 
 notice in all cases is good if left at the dwelling-house of the party in a way 
 reasonably calculated to bring the knowledge of it home to him ; and if 
 the house be shut up by a temporary absence, still the notice may be left 
 there. If the parties live in different towns, the letter must be forwarded 
 to the post-office nearest to the party, though under certain circumstances 
 a more distant post-office may do ; but the cases have not defined the pre- 
 cise distance from the post-office at which the party must reside to render 
 the service of notice through the post-office good. The law does not pre- 
 sume that the holder of the paper is acquainted with the residence of the 
 indorsers ; and if the holder or notary, after diligent inquiry as to the resi- 
 dence of the indorser, cannot ascertain it, or mistakes it, and gives the no- 
 tice a wrong direction, the remedy against the indorser is not lost." 
 
432 PROMISSORY NOTES. [CHAP. VDI. 
 
 or by the next post after the dishonor, or after his own 
 knowledge of the dishonor ; and each of these indorsers in 
 succession is entitled to the whole of the day on which he 
 receives notice of the dishonor, and until the post of the next 
 day, or the next post thereafter, to give the like notice to the 
 antecedent indorsers. So that, if the fifth indorser receives 
 notice on Monday, it is sufficient for him to give notice to the 
 fourth indorser and the preceding indorsers on Tuesday, and 
 for the fourth indorser, if he receives the notice on Wednes- 
 day, to give notice to the third indorser and the preceding 
 indorsers on Thursday ; and, if the third indorser receives 
 the notice on Friday, it is sufficient for him to give notice to 
 the- second indorser and the preceding indorser on Saturday; 
 and, if the second indorser gets the notice on Sunday, or 
 Monday, it will be sufficient for him to give notice to the first 
 indorser on Tuesday following. In this way, in point of fact, 
 a week or more may elapse between the first and the last 
 notice ; and yet there will be no laches in any of the indors- 
 ers, but each will have done his duty, and will be entitled to 
 reimbursement if he pays the Note. 
 
 § 332. Great care should, however, be taken by each suc- 
 cessive indorser, in cases of this sort, not to miss a day in 
 duly giving or forwarding notice to the antecedent parties ; 
 for, if he should miss a day without any legal excuse for the 
 omission, a link in the regular chain will be broken ; and all 
 the prior parties will be discharged from their obligations to 
 him, unless, indeed, they shall have received due notice from 
 some other party to the Note, to whom such indorser is 
 liable.^ It is no excuse for not giving notice the next day 
 after a party receives one that he received his notice earlier 
 than the preceding parties were bound to give it ; g,nd that 
 he gave notice within what would have been proper time, if 
 
 ' Chitty on Bills, ch. 10, pp. 522, 523 (8th edit.) ; Dobree v. Eastwood, 
 
 3 C. & P. 250 ; Marsh v. Maxwell, 2 Camp. 210, note ; Turner v. Leech, 
 
 4 B. & Aid. 451 ; Bayley on Bills, ch. 7, § 2, pp. 255, 256, 275 (5th edit.) ; 
 Story on Bills, §§ 294, 303, 304. 
 
CHAP. Vin.] PROCEEDINGS ON NON-PAYMENT. 433 
 
 each preceding party liad taken all the time the law allowed 
 him. The time is to be calculated according to the period 
 ■when the party in fact received his notice. Nor is it any ex- 
 cuse that there are several intervening parties between him 
 who gives the notice and the defendant, to whom it is given ; 
 and that, if the notice had been communicated through 
 those intervening parties, and each had taken the time the 
 law allows, the defendant would not have had the notice 
 sooner.^ 
 
 § 333. The French law entertains the same doctrine as 
 our law, as to the duties of the successive indorsers to give 
 notice of the dishonor of the Note to the prior parties, who 
 are chargeable thereon, within the same period as the holder 
 is required to give it ; and, if it is omitted, then the antece- 
 dent parties will be exonerated. And hence the holder, in 
 order to preserve his own rights in all cases, in case his 
 immediate indorser should fail to give notice to the antece- 
 dent parties, may himself, nay, is bound, if he means to hold 
 them liable to him under such circumstances, to give them 
 all notice within the period prescribed by law.^ 
 
 § 384. We have already seen, that notice, given by any 
 party to a Note, at least if he has himself received notice, and 
 will, upon payment thereof, be en4itled to reimbursement to 
 any antecedent party on the Note, will inure to the benefit 
 of all the other parties to the Note to whom he is liable.^ 
 Hence, the holder may, in the case above stated of five in- 
 dorsements, avail himself of the notice given by each of the 
 successive antecedent indorsers to the other antecedent in- 
 dorsers, although he may not have himself given any notice 
 except to the fifth or last indorser, in the same manner and 
 to the same extent as if he had himself directly given notice 
 
 ' Bayley on Bills, ch. 7, § 2, p. 275 (Sth edit.) ; Id. p. 255 ; Turner v. 
 Leech, 4 B. & Aid. 451 ; Louisiana State Bank v. Hennen, 16 Martin, 226. 
 
 " Pothier, De Change, n. 149, 152, 153 ; Pardessus, Droit Comm. Tom. 2, 
 art, 429, 430; Code de Comm. art. 164, 165. 
 
 Ante, §§ 302, 303 ; Bayley on Bills, ch. 7, § 2, p. 256 (5th edit.) ; Abat 
 V. Kion, 9 Martin, 465, 469. 
 28 
 
434 PBOMISSORY NOTES. fCHAP. VIII. 
 
 to all these indorsers.^ But here it Is to be distinctly borne 
 in mind, that if an indorser pays a Note without, having 
 received due notice of the dishonor, he cannot thereby make 
 an antecedent indorser liable to repay the amount unless the 
 latter has already, by due notice, or otherwise, become abso- 
 lutely bound to pay the same ; for if he is discharged by 
 want of notice, or laches, then no other subsequent indorser 
 can revive his liability by his voluntary act.^ 
 
 § 335. The time of giving notice may also be affected by 
 other considerations and circumstances ; such, for example, 
 as by the residence of the party entitled to notice being un- 
 known, either by a change of his domicile since the Note was 
 given, or by his voluntary absence abroad, or otherwise. In 
 such cases, as we have seen,^ it is incumbent upon the holder 
 and all other parties, who are bound to give notice, to use 
 reasonable diligence, and to make due inquiries as to the ac- 
 tual residence of the party so entitled to notice.* What will 
 be due and reasonable diligence in this respect must depend 
 upon the circumstances of the particular case ; for no other 
 rule can be laid down than that which has just been stated ; 
 and what would be due and reasonable diligence in one case 
 might fall far short of it in another.^ But the time, within 
 which notice maybe sent, will from necessity be prolonged 
 during the whole period in which such due and reasonable 
 inquiries are making ; for until the residence of the party 
 entitled to notice is thus ascertained, there can be no laches 
 imputable to the holder, or. other party, bound to give notice, 
 
 > Ibid. 
 
 ' Koscow V. Hardy, 12 East, 434 ; 2 Camp. 458 ; Turner v. Leech, 4 B. 
 & Aid. 451 ; Grosvenor w. Stone, 8 Pick. 79 ; post, §§ 386, 388. 
 
 ' Ante, §§ 316, 317. 
 
 * Story on Bills, § 299 ; Bank of Utica v. Phillips, 2 Wend. 408 ; McLana- 
 han V. Brandon, 13 Martin, 321 ; Chapcott v. Curlewis, 2 M. & Bob. 484; 
 Miers v. Brown, 11 M. & W. 372. 
 
 ' Ante, §§ 316, 317 ; Preston v. Daysson, 7 Miller, 7 ; Barnwell v. Mitchell, 
 3 Conn. 101 ; Bank of Utica v. De Mott, 13 John. 432 ; Sewall v. Russell, 
 3 Wend. 276; Bank of Utica v. Phillips, 3 Wend. 408 ; Cuyler v. Nellis, 4 
 Wend. 398; Bank of Utica v. Bender, 21 Wend. 643. 
 
CHAP. Vni.J PROCEEDINGS ON NON-PAYMENT. 435 
 
 in not giving or forwarding ^lotice.^ Thus, if the holder or 
 his agent should be employed four days in endeavors, by rea- 
 
 ' Chitty on Bills, ch. 10, pp. 516, 524, 525 (8th edit. 1833) ; Bayley on 
 Bills,' ch. 7, § 2, pp. 274, 275, 280-283 (5th edit. 1830) ; MeMurtrie u. 
 Jones, 3 Wash. 206 ; Pardessus, Droit Comra. Tom. 2, art. 434 ; Fisher v. 
 Evans, 5 Binn. 542 ; Chapman v. Lipscombe, 1 John. 294 ; Browning v. Kin- 
 near, Gow, 81 ; Bateman v. Joseph, 12 East, 433 ; Beveridge v. Burgis, 3 
 Camp. 262 ; Firth v. Thrush, 8 B. & C. 387 ; Clarke v. Sharpe, 3 M. & W. 
 166 ; Barnwell v. Mitchell, 3 Conn. 101 ; 3 Kent, Lect. 44, pp. 107, 108 
 (4th edit.) ; Stewart v. Eden, 2 Caines, 121 ; Blakely v. Grant, 6 Mass. 
 386 ; Safford v. Wyekoff, 1 Hill, 11 ; Howard v. Ives, 1 Hill, 263 ; Kansom 
 V. Mack, 2 Hill, 587. Mr. Chitty says : "If the residence of the party, to 
 whom the notice ought to be given, be not known to the holder, he must, 
 nevertheless, not remain in a state of passive and contented ignorance, 
 but must use due diligence to discover his residence, and, if he do, then the 
 indorser remains liable, though a month or more may have elapsed before 
 actual notice be given ; and, if he (the holder), before the Bill become due, 
 should apply to one of the parties, to ascertain the residence of any indorser, 
 and he should decline giving him any information, the holder need not, 
 after the Bill became due, renew his inquiries of that party.* But, in gen- 
 eral, the holder should not only immediately apply to all the parties to the 
 Bill for information, but also make inquiries, and send notice to the place 
 where it may reasonably be supposed the party resides ; and, if he has 
 employed an attorney, who at length' discovers the residence, we have seen 
 that it will suffice, if the attorney, on the next day, consults with his client, 
 and the latter, on the third day, forwards the notice to the discovered in- 
 dorser, though, in general, notice ought to be given on the next day. And 
 a letter from the holder, giving notice of the dishonor, containing this pas- 
 sage, ' I did not know where, till within these few days, you were to be 
 found,' is not to be taken as proving that the notice was not given on the 
 next day after the residence of the party was discovered. Where the 
 traveller of a tradesman received, in the course of business, a Promissory 
 Note, which was delivered to him for the use of his principal, without in- 
 dorsing it, and the Note having been returned to the principal dishonored, 
 and the latter, not knowing the address of the next preceding indorser, 
 wrote to his traveller, who was then absent from home, to inquire respect- 
 ing it, it was held, that such principal was not guilty of laches, although it 
 was urged, that the traveller ought to have stated the residence, when he 
 remitted the Notes, and though several days elapsed before he received an 
 answer, and thereupon he gave notice to the next party, as he had used due 
 diligence in ascertaining the address." Chitty on Bills, ch. 10, pp. 524, 525 
 
 * I have varied Mr. Chitty's text in this place, to correct its inaccuracy and ob- 
 scurity. 
 
436 PEOMISSOEY NOTES. [CHAP. VIII. 
 
 sonable inquiries, to ascertain the residence of the party enti- 
 tled to notice, and should be successful only on the fourth 
 day, it will be sufficient if he sends notice by the post of the 
 next day, or by the next post after the fourth day.^ And if, 
 by the exercise of such reasonable diligence and inquiries, 
 the residence of such party cannot be ascertained, then the 
 
 (8th edit. 1833) ; Id. 516. Mr. Bayley says : " A letter directed to a man 
 at a large town, without specifying the part in which he lives, the trade he 
 carries on, or any other circumstance to distinguish him, may be sufficient, 
 if he be the drawer, and has dated the Bill generally at that place ; or if, 
 upon reasonable inquiry, no information can be obtained to enable the 
 party to give a better direction. But, prima facie, such a direction will 
 be insufficient, because it is not likely, upon such a direction, the letter will 
 reach the person for whom it is intended, in proper time. If, however, it 
 be proved, that there was a directory at the time, for that plgioe, and that 
 a reference to the directory would have shown in what part of the place 
 the person intended lived, such a direction might, perhaps, be held suffi- 
 cient. Where it is not known where a party lives, due diligence must, in 
 general, be used to find out. And, where such diligence is unsuccessful, it 
 will excuse want of notice. But merely inquiring at the house, where a 
 Bill is payable, is not due diligence for finding out an indorser. Inquiry 
 should be made of some of the other parties to the Bill or Note, and of per- 
 sons of the same name. Calling on the last indorser,.and last but one, the 
 day after the Bill becomes due, to know where the drawer lives, and, on 
 his not being in the way, calling again the next day, and then giving the 
 drawer notice, may be sufficient. But if a party, when he passes a Bill or 
 Note, decline saying where he lives, and undertake to call upon the ac- 
 ceptor to see if the Bill is paid, he cannot complain of want of notice. 
 Where the residence of a party entitled to notice is unknown, and the per- 
 son next to him upon the Bill or Note will give no information where he 
 lives, a note addressed to the former, if sent to the place where such latter 
 person lives, will be sufficient, though the application for information be 
 made before the Bill or Note is due. Especially if the person applied to 
 has acted in any respect, with regard to the Bill or Note, as agent for the 
 party entitled to notice. And, if the holder employ an attorney to give 
 notice, and the attorney, after a lapse of time, discover where the party 
 lives, he may take a day to apprise the holder, and take his further direc- 
 tions, before he gives the notice." Bayley on Bills, ch. 7, § 2, pp. 280-283 
 (5th edit. 1830) ; Story on Bills, § 299, and note; Chitty on Bills, ch. 10, 
 pp. 486 -488 (8th edit.) ; Safford v. Wyckoff, 1 Hill, 11 ; Baldwin v. Rich- 
 ardson, 1 B. & C. 245 ; Miers v. Brown, 11 M. & W. 372. 
 ' Ibid. And see Dixon u. Johnson, 29 Eng. Law & Eq. 504. 
 
CHAP. VIII.] PROCEEDINGS ON NON-PAYMENT. 437 
 
 holder, or other party, will be absolved from all objections on 
 account of the want of notice .^ 
 
 § 33S a. A question may also arise in cases where a regu- 
 lar notice is sent to an indorser, and does not arrive at all, or 
 does not arrive until long after the period when, by the regur 
 lar course of the mail, it ought, what becomes his duty as to 
 the antecedent indorsers ? Is he bound to send them notice 
 if he receives, and when he receives, notice of the dishonor, 
 either directly or circuitously, or after the protracted delay ? 
 No case exactly in point seems to have been decided. But 
 it would seem, upon the analogy of other cases, that if the 
 indorser is, by the regular notice sent to him, although not 
 received at all, or not received until after a long delay, bound 
 to pay the Note, notice sent by him to the antecedent in- 
 dorsers whenoTer he receives notice of the dishonor, will give 
 him a claim against them, 
 
 § 336. Where the party entitled to notice is resident in 
 another state, colony, or country, than the state, colony, or 
 country where the dishonor takes place, or from which the 
 notice is to be sent, and the ordinary communication between 
 such state, or colony, or country, .and the other state, colony, 
 or country, is by means of the post-office, there it will be suf- 
 ficient if the notice is put into the proper post-office, with 
 suitable directions, on the day after the dishonor, or after the 
 knowledge thereof, early enough to go by the post of that day, 
 if any, or, if there be none, by the next succeeding post.^ 
 
 ' Ibid. 
 
 ' Story on Bills, §§ 287, 383 ; Chitty on Bills, ch. 10, pp. 485, 486, 524 
 (8th edit.) ; Bayley on Bills, ch. 7, § 2, p. 279 (5th edit.) ; Mead v. Engs, 
 5 Cowen, 303. See Bank of Utioa v. Davidson, 5 Wend. 587; Finder v. 
 Nathan, 4 Martin, 346 ; Thomson on Bills, ch. 6, § 4, p. 477 (2d edit.). 
 The doctrine is somewhat more fully stated in Story on Bills, § 298, p. 332, 
 where it is said : " The same rule will generally apply to cases where the 
 notice is to be sent abroad to a foreign country. It should be directed to 
 the party at his domicile, or at his place of business, if they are in different 
 towns ; and it should be sent by the regular packet, if there be any, bound 
 for the port or place of his domicile ; and if there be none, then by some 
 
438 PROMISSORY ;notes. [chap. vin. 
 
 In the United States, this is the usual and customary course 
 of giving notice to persons residing in other States in the 
 Union, whose residence is known ; and the same cobrse is 
 now adopted in many, if not in all, of the continental 
 nations of Europe, where regular posts are established be- 
 tween them.^ 
 
 § 337. When, as frequently occurs between distant coun- 
 tries, the usual intercourse is carried on by means of regular 
 packets, sailing at particular periods (as is the case between 
 New York and England, and New York and Havre), or by 
 means of regular steam-ships, sailing at the like periods (as 
 is the case between Boston and Liverpool), then, and in such 
 cases, notice should be sent by the next regular packet or 
 steam-ship that sails for the port where the party to whom 
 notice is to be given resides, or to some neighboring port, 
 according to the usual course of transportation of letters of 
 business, if a reasonable time before its departure remains for 
 writing and forwarding the notice.^ On the other hand, if 
 there are no such regular packets or steam-ships, or their 
 times of sailing are at distant intervals, and, in the mean 
 time, other ships are about to sail for the same port, or for 
 some neighboring port, it may be proper to send the notice 
 by such ship, if, upon reasonable calculation, her arrival may 
 be presumed to be earlier than the regular packets or steam- 
 other conveyance to, or as near his place of domicile, or other direction, as 
 is practicable. If the packet do not proceed directly to the port where the 
 party resides, or has his place of business, it would seem sufiScient to write 
 the proper direction of thie party on the notice, so that it may be sent in 
 the usual manner, by the post or otherwise, after the arrival of the packet, 
 to the proper place, to which it is directed. It is, however, almost imprac- 
 ticable, on such a subject, to lay down any specific rules, which shall govern 
 all cases, since the circumstances may so essentially vary. The most that 
 can be said, is, that reasonable diligence should be used, in all cases, to 
 make the notice effectual." 
 
 ' Ibid. 
 
 " See Bayley on Bills, ch. 7, § 2, p. 279 (5th edit. 1830); Muilman v. 
 D'Eguino, 2 H. BI. 565 ; Chitty on Bills, ch. 10, pp. 505, 508 (8th edit. 
 1833) ; Darbishire v. Parker, 6 East, 3, 7. 
 
CHAP. VIII.] PEOCEEDINGS ON NON-PAYMENT. 439 
 
 ships.^ If the communication is irregular with the ports of 
 the country where the Notes are protested, or it is, at differ- 
 ent seasons, by different routes or ways of conveyance, that 
 should be adopted, to send the notice, which may reasonably 
 be presumed to be the most certain and expeditious under 
 all the circumstances. Thus, for example, if a Note, drawn 
 in America, is protested in St. Petersburg in the winter, and 
 the usual mode of communication is by land, in common 
 commercial transactions, through the continental ports to 
 London or Havre, that would seem to be the proper route ; 
 whereas, if the protest were in the summer, the direct route 
 by water between St. Petersburg and America might be . 
 more expeditious and satisfactory. So, if a Note be protested 
 in China or India, the mode of giving notice must vary ac- 
 cording to circumstances, and sometimes may be direct by 
 water between that and the foreign country to which the no- 
 tice is destined ; and sometimes be indirect and overland ; 
 and, in each case, there will be a just compliance with the 
 requisitions of the law. So, if, by reason of war or other 
 political occurrences, the usual direct mode of communica- 
 tion be interdicted or obstructed, any other suitable and rea- 
 sonable mode may be adopted.^ And, indeed, it would seem, 
 that an omission to give due notice, in consequence of an 
 accident, or casualty, or superior force, would, in all cases, 
 excuse the holder from a strict compliance with the general 
 rule.^ 
 
 § 338. Hitherto we have mainly spoken of^ the time of 
 giving notice by means of the general post, or by regular 
 packets, or by some other regular conveyance, where the 
 
 ' See Muilman v. D'Eguino, 2 H. Bl. 565; Darbishire«. Parker, 6 East, 
 3, 7 ; Bayley on Bills, ch. 7, § 2, p. 279 (5th edit. 1830.). 
 
 ' Chitty on Bills, ch. 9, p. 389 (8th edit. 1833) ; Id. ch. 9, p.,422 ; Id. 
 ch. 10, pp. 485, 505, 510. 
 
 ' Ibid., ch. 10, pp. 485, 486, 524 (8th edit. 1833) ; Pothier, De Change, 
 n. 144. See Hopkirk v. Page, 2 Brock. 20; Story on Bills, §§ 284, 
 298, 383; Duncan v. Young, 1 Martin, 32; Spencer v. Stirling, 10 Mar- 
 tin, 90. 
 
440 PEOMISSOBY NOTES. [CHAP. VHI. 
 
 parties reside at a distance, or in a foreign country. But 
 tliere is nothing in the rules of law which prevents notice iu 
 any case from being given by a private messenger, if the 
 holder should elect so to do, and is willing to run the chance 
 of this hazardous mode of giving notice. If he does so elect, 
 and thus supersedes the ordinary and regular mode of giving 
 notice by the general post, or otherwise, it is indispensable 
 that the notice should reach the party for whom it is de- 
 signed on the same day (although not,, perhaps, at as early 
 an hour) on which he would otherwise be entitled to receive 
 it ; for if it arrive a day later, the party will be discharg^.i 
 Cases, indeed, may exist, in which notice by a special mes- 
 senger may be most reasonable and proper (and then his ex- 
 penses must be borne by the party who receives the notice) ; 
 as, for example, where the party resides at a distance from 
 any post-town, or there is no regular or speedy communicsr 
 tion with his place of residence.^ It does not seem, however^ 
 that in any case it is necessary to send notice by a special 
 messenger, if there be a regular mode of giving it, by the 
 post, or otherwise, even if thereby the notice might have 
 arrived earlier.^ 
 
 ' Chitty on Bills, ch. 10, pp. 504, 505, 518, 519 (Sth edit. 1833) ; Bayley 
 on Bills, ch. 7, § 2, pp. 279, 280 (5th edit. 1830) ; Darbishire v. Parker, 6 
 East, 8, 9 ; Pearson v. Crallan, 2 Smith, 404 ; Bancroft v. Hall, Holt, 476 ; 
 Story on Bills, § 290, note; ante, § 324; 8 Kent, Lect. 44, pp. 106, 107 
 (4th edit.) ; Jaryis v. St. Croix Manuf. Co., 23 Maine, 287. 
 
 ' Chitty on Bills, ch. 10, pp. 504, 505, 518, 519 (8th edit. 1833) ; Pear- 
 son V. Crallan, 2 Smith, 404. 
 
 ' Chitty on Bills, ch. 10, p. 503, 505, 518, 519 (8th edit. 1833) ; MuIIt 
 inan v. D'Eguino, 2 H. Bl. 565 ; Darbishire v. Parker, 6 East, 7 ; Bank of 
 Columbia v. Lawrence, 1 Pet. 582, 584 ; Kuf h v. Weston, 3 Esp. 54. But 
 see Hordern v. Dalton, 1 C. & P. 181. On this subject Mr. Chitty (on Bills, 
 ch. 10, p. 505, 8th edit.) says : " Where there is no post, it is sufficient to 
 send notice by the ordinary mode of conveyance, though notice by a special 
 messenger might arrive earlier ; and therefore, in the case of a foreign Bill, 
 it is sufficient to send it by the first regular ship bound for the place to 
 which it is to be sent ; and it is ilo objection, that, if sent by a ship bound 
 elsewhere, it would, by accident, have arrived sooner, though the holder 
 wrote other letters by that ship to the place to which the notice was to be 
 
CHAP. Vni.] PKOCEEDINGS ON NON-PAYMENT. 441 
 
 § 339. The time of giving notice may, also be most mate- 
 rially affected by the law of the place, where the contract is 
 
 sent. If the deputy postmaster, in a country town, should neglect to de- 
 liver the letter in the usual time, but there is, nevertheless, tiqje to send 
 the notice by a special messenger, it should be done. It has been decided, 
 that, where it is necessary or more convenient for the holder to send notice 
 by other conveyance than the post, he may send a special messenger, and 
 he may recover the reasonable expenses incurred by that mode of giving 
 notice." Again, in page 518, he says : " We have seen, when considering 
 the modes of giving notice, that it may be given either by the post, or by a 
 special messenger, or private hand ; but if, when there is a regular post, 
 and the notice be nevertheless sent by a private conveyance, care must be 
 observed that it arrive as soon, or at least on the same day, that a notice by 
 the post would have arrived. If there be no post for a considerable time 
 after a party receives notice, it may then be incumbent on him to forward 
 notice to his immediate indorser by the next ordinary conveyance, or even 
 by a special messenger, as in some parts of Yorkshire, where the manufac- 
 turers reside at a distance from the post-town, and the letters might, if not 
 so forwarded, lie for a long time before they are called for ; in which case it 
 may be necessary to send notice by a special messenger, and the expense 
 of which would then be recoverable. If the notice be unnecessarily for- 
 warded by a private hand or unusual conveyance, and miscarry, or be 
 delayed a day beyond the usual time, the party giving the notice may 
 thereby lose his remedies." See also Chitty on Bills, ch. 10, pp. 503, 504 
 (8th edit.); Kufh v. Weston, 3 Esp. 54; Bancroft v. Hall, Holt, 476. 
 This last case was an action against the drawer of a Bill of Exchange, who 
 resided at Liverpool; the Bill was accepted by one Hind, payable in Lon- 
 don, and indorsed by the defendant to the plaintiff. The Bill bi ing dis- 
 honored, notice was given to the plaintiff, who lived at Manchester, on the 
 24th of May. On that day he sent a letter, by a private hand, to his agent 
 at Liverpool, directing him to give Hall notice of the acceptor's default. 
 On the 25th, in the afternoon, the agent received the letter, and went, 
 about six or seven in the evening, to the counting-house of Hall, but after 
 knocking at the door, and ringing a bell, no one came to receive a message. 
 The merchants' counting-houses at Liverpool do not shut up till eight or 
 nine. The 26th wjis a Sunday, and notice was not in fact given till the 
 morning of the 27th. It was objected, for the defendant, that the notice 
 ■was not in time ; after the London letter reached Manchester a mail set 
 out next morning to Liverpool. The plaintiff should have sent the notice 
 by the mail, which reached Liverpool by ten o'clock. If he prefers a pri- 
 vate conveyance, or if he attempts to give notice earlier than by law he is 
 bound to do, and fails in giving an effectual notice, he is not therefore ex- 
 empt from giving proper legal notice. Bayley, J. : " Notice must be given 
 in time, but all a man's other business is not to be suspended for the sake of 
 
442 PROMISSORY NOTES. [CHAP. VHI. 
 
 made, or is to be executed, whether it be the original con- 
 tract between the immediate parties to an indorsement, or 
 between those who stand in the relation of remote indorser 
 and indorsee. The general rule (as we have already seen i) 
 is, that the law of the place, where the contract is made, is 
 to regulate the rights and duties of the parties.^ Hence, it 
 should seem, that, as the contract by indorsement takes effect 
 in the country where it is made, according to the laws of that 
 country, all the incidents thereto, such as the time of giving 
 notice of the dishonor, should be governed by the same law.^ 
 
 giving the most expeditious notice. He is not bound to write by post as the 
 only conveyance ; or to send a letter by the very first channel which offers. 
 He may write to a friend, and send by a private conveyance. Here the notice 
 reaches Liverpool on the 25th. No expedition could have brought it ear- 
 lier. Between six and seven in the evening of that day, the witness goes 
 to the defendant's counting-house, and it is shut up. A merchant's count- 
 ing-house, or residence of trade, is not like a banker's shop, which closes 
 universally at a known hour. It was the defendant's fault that he did not 
 receive notice on the 25th, which he might have done if he had kept his 
 counting-house open till eight or nine, which are the customary hours of 
 closing them at Liverpool." Verdict for the plaintiff. And see Bayley on 
 Bills, ch. 7, § 2, p. 280 (5th edit.). But see Beeching v. Gower, Holt, 315. 
 In Bank of Columbia v. Lawrence, 1 Pet. 582, 584, the Supreme Court 
 said : " Some countenance has lately been given, in England, to the practice 
 of sending a notice by a special messenger in extraordinary cases, by allow- 
 ing the holder to recover of the indorser the expenses of serving the notice 
 in this manner. The holder is not bound to use the mail for the purpose 
 of sending the notice. He may employ a special messenger if he pleases, 
 but it has not been decided that he must. To compel the holder to the 
 expense of a special messenger would be unreasonable." 
 
 1 Ante,^ 159. 
 
 ' Ante, §§ 159, 165, 170, 173 - 176. 
 
 ' Story on Bills, §§ 176, 177, note; Id. § 206 ; Chitty on Bills, ch. 10, 
 pp. 506, 508 (8th edit.). See also Aymar ti. Sheldon, 12 Wend. 439; 
 Yeatman v. Cullen, 5 Black. 240 ; Burrows v. Hannegan, 1 McLean, 315. 
 The case of Rothschild v. Currie, 1 A. & El. (N. S.) 43, appears to contra- 
 dict the doctrine stated in the text. It was the case of a Bill drawn in 
 England on, and accepted by, a house in France, payable at Paris, in favor 
 of a payee domiciled in England, by whom it was indorsed, in England, to 
 an indorsee, ivho was also domiciled there. The Bill was dishonored at 
 maturity, and due notice was given to the payee of the protest and dis- 
 honor, according to the law of France ; but not (as it was suggested) 
 
CHAP. Vni.] PROCEEDINGS ON NON-PAYMENT. 443 
 
 Now, in England and America (as we have already seen), 
 the notice is regularly to be given by the post of the next 
 
 according to the law of England ; and it was held by the Court, in a suit 
 brought by the indorsee against the payee, that the notice was good, being, 
 according to the law of France, the lex loci contractus of acceptance. For 
 ,this doctrine, reliance was mainly placed upon the text of Pothier, De 
 Change, n. 155. The language of Pothier is, that the form of the protest, 
 the time of making it, and the notice of it, are to be regulated by the law 
 of the place where the Bill of .Exchange is payable. In respect to the 
 form of the protest, he says, there is no doubt ; for it is a general rule, that, 
 in respect to the formalities of acts, we are to follow the law and style of 
 the place where the act is done. He then adds, that the same thing applies 
 in respect to the time within which the protest ought to be notified ; for 
 the Bill of Exchange is to be deemed contracted in the place where it is 
 payable, according to the rule, Contraxisse unusquisque in eo loco intelli- 
 gitur, in quo xit solveret, se obligavit; and, consequently, the obligations of 
 it ought to be governed by the laws and usages of the same place, to which 
 the parties must be presumed to have submitted themselves according to 
 another rule, — In contractibus veniunt ea, quae sunt moris et consuetudinis 
 in regione, in qua contrahitur. Now, so far as regards the formalities of the 
 protest, and the time of making it, there is no doubt, whatsoever, that the 
 rule is universally adopted, in the commercial world, that they are to be 
 according to the law of the plajce where the acceptance and payment of the 
 Bill are to be made. Chitty on Bills, ch. 10, p. 490 (8th edit. 1833). But 
 the doctrine of Pothier is supposed to go much farther ; and, if it does, and 
 extends to the case of notice to indorsers who have indorsed the Bill in a 
 foreign country (upon which it seems to me there may be room for doubt), 
 his reasoning in support of it is founded upon a false foundation ; and 
 the maxim, cited by him, Contraxisse, &c., would lead to the opposite con- 
 clusion. The acceptor agrees to pay in the place of acceptance, or the 
 place fixed for the payment (Cooper v. Earl of Waldegrave, 2 Beav. 282) ; 
 but upon his default, the drawer and the indorser do not agree, upon due 
 protest and notice, to pay the like amount in the same place ; but agree to 
 pay the like amount in the place where the Bill was drawn or indorsed by 
 them respectively. Hence it is, that the notice, to be given to each of 
 them, must and ought to be notice according to the law of the place where 
 he draws or indorses the Bill, as a part of the obligations thereof. The 
 drawer and indorser, in effect, contract, in the place where the Bill is 
 drawn or indorsed, a conditional obligation, that is, if the Bill is dishonored, 
 and due notice is given to them of the dishonor, according to the law of the 
 place of their contract, they will respectively pay the amount of the Bill at 
 that place. The law of the place of the acceptance or payment of the 
 Bill has nothing to do with their contract ; for it is not made there, and has 
 no reference to it. The maxim, Contraxisse, &c., in truth, has no just ap- 
 
444 PROMISSORY NOTES. [CHAP. VIH. 
 
 day, or by the next post after the dishonor takes place, or is 
 known to the holder, or other party, who is bound to give 
 
 plication to such a case. It properly applies to the case, where the same 
 person, by a contract made in one place, promises to pay money in another 
 place. But, if it is to have any application to the case of a drawer or an 
 indorser of a Bill, it must be to make the other maxim apply : In contracti- 
 bus Teniunt ea, quae sunt moris et consuetudinis in regione, in qua contra- 
 hitur. Pardessus lays down the rule in its true sense ; and insists upon the 
 distinction between the cases of the contract of the acceptor, and the con- 
 tract of the drawer and indorser. The contract of the acceptor is a con- 
 tract made in the place of acceptance, and governed by the law of that 
 place ; but the contract of the drawer is a contract made in the place where 
 it is drawn ; and of the indorser, a contract in the place where the indorse- 
 ment is made, and governed by the law thereof. Hence he says, that, 
 if a Bill is drawn in France, where a protest is required to prove the dis- 
 honor of a Bill, upon a foreign country, where no protest is required, still 
 the drawer will not be bound, unless a protest is duly made in the foreign 
 country. Whether this doctrine be strictly correct, or not, it shows in a 
 striking manner the opinion of Pardessus upon the whole subject. He 
 adds, what is most material to the present purpose, that the indorser is 
 liable only in the same manner, and under the same circumstances, as the 
 drawer would be ; that is, according to the law of the place of his contract ; 
 and that all the obligations and qualifications of it, imposed by the local 
 law, are binding and operative upon him. (Pardessus, Drbit Comm. Tom. 
 5, art. 1488, 1497-1499, pp. 252-255, 280-287.) And he expressly 
 declares that every indorser is to have notice, according to the law of the 
 place of his indorsement, since it is a part of the contract. (Id. art. 1485, 
 1499.) His reasoning is at variance with that of the learned judge who 
 delivered the opinion of the Court in Rothschild v. Currie, 1 A. & El. (N. S.) 
 43. With the greatest deference for that learned judge, it seems to me, 
 that the decision of the Court is not sustained by the reasoning on which 
 it purpoi;ts to be founded. [And the decision itself has been much doubted 
 in England. See Gibbs v. Fremont, 20 Eng. Law & Eq. 557.] The Court 
 there admit, that the notification of the dishonor is parcel of the contract 
 of the indorser ; and if so, then it must be governed by the law of the 
 place (England) where the indorsement was made, upon the very rules 
 cited by the Court from Pothier. The error (if it be such) seems to have 
 arisen from confounding the contract of the acceptor with the contract of 
 the drawer and the indorser. Mr. Chitty takes the same view of the law 
 which is taken in the text. Chitty on Bills, eh. 10, pp. 490, 491 (8th edit. 
 1833) ; Id. p. 506. The case of Aymar v. Sheldon (12 Wend. 439), seems 
 also opposed to the doctrine in Rothschild v. Currie. Indeed, I cannot but 
 think, that the language of Pothier has been misunderstood, as to its true 
 interpretation and meaning. He there says : " On doit decider la m§me 
 
CHAP. Vm.] PROCEEDINGS ON NON-PAYMENT. 445 
 
 notice.^ But in Prance, the holder or other party is allowed 
 certain specific periods of time after the dishonor taikes place 
 to give the notice, and these periods are fixed with reference 
 to different distances and localities.^ If, therefore, the in- 
 
 chose h I'egard du temps lequel le protSt doit 6tre fait ou d^noncde," which, 
 literally construed, means : " We ought to decide the same thing in regard 
 to the time when the protest ought to be made or proclaimed " ; thus using 
 the words " made or proclaimed " as equivalents, and expressive merely of 
 the time when the act of protest is to be made or declared by the holder, 
 and not when notice thereof is to be given to the indorser. See also 3 
 Burge, Comm. 773 ; 2 Kent, 460, and note (5th edit.) ; Astor v. Benn, 1 
 Stuart, Canada, 69, 70; Wallace v. Agry, i Mason, 336, 344; Pothier, 
 n. 64, 67. See also Story on Bills, §§ 285, 296, 366, 391, and notes ibid. 
 
 > Ante, § 324. 
 
 " Chitty on Bills, ch. 10, pp. 506, 507 (8th edit. 1833). Mr. Chitty 
 gives the following summary statement of the French law : " In France, 
 also, a protest for non-payment must not be made until the day after the 
 day when the Bill became due, that entire day being allowed by law to 
 the drawee to prepare for and make payment ; but it is otherwise with 
 respect to Bills payable at sight, when the terms of the Bill denote that the 
 party is to pay upon demand; and, therefore, the protest may, in that case, 
 be made on the very day of presentment. If the day for making the, pro- 
 test should fall ou a Sunday, or legalized holiday, then the protest is to be 
 made on the day after it ; and, if the distance of parties, or other circum- 
 stances, occasion delay, a reasonable further time, on making the protest, 
 will not prejudice. A premature protest would, no doubt, be unavailing. 
 In France, also, the time within which the notice of dishonor must be given 
 differs materially from that required in England, and affords more indul- 
 gence to the holder. Thus, it there suffices, if the protest be notified 
 within five days, reckoned from the date of the protest, when the drawer 
 or indorser resides within fifteen miles; and if the party to whom the notice 
 is to be given resides more than fifteen miles from the place where the Bill 
 was payable, the time is increased in proportion, and according to such 
 increased distance ; but if the last of the five days be a Sunday, the notice 
 must arrive the day before. When the Bill drawn in France falls due in 
 a foreign country (as in England), the drawer and indorsers, resident in 
 France, must have notice within two months after the date of the protest ; 
 and, when the Bill is payable in other countries, more or less prescribed 
 time is allowed ; and, if the English holder neglect to observe the law of 
 France as to the time of protest, and notice, and proceeding in France,- he 
 will lose his remedy against the French drawer and indorsers. The French 
 law does not assume to determine what delay may be allowed in giving 
 notice to, and proceeding against, the drawer and indorsers residing in a 
 
446 PROMISSORY NOTES. [CHAP. VIII. 
 
 doi'sement is made in England or America, the notice ought 
 to be according to the laws of those countries ; if in Prance, 
 according to the law of Prance. At least, such would seem 
 to be the just result of the principle applicable to the case, 
 
 foreign country. In general, they are regulated, and are to be given effect 
 to, in France, according to the law of such foreign country, where there 
 are conflicting regulations in different countries in regard to commerce." 
 Chitty on Bills, ch. 10, pp. 607, 508 (8th edit. 1833). It appears to me 
 that Mr. Chitty has mistaken the rule of the French law ; and that it is 
 fifteen instead of five days, and twenty-five miles instead of fifteen miles. 
 Indeed, he seems, in p. 508, in some measure to correct his own error. 
 Mr. Kodman gives the following translation of the two articles (165 and 
 166) of the Code of Commerce : " If the holder would pursue his remedy 
 individually against his immediate indorser, or the drawer, in case the Bill 
 came directly from him, he must give him notice of the protest, and, in 
 default of reimbursement, commence his suit against him within fifteen days 
 from the date of the protest, if the said indorser or drawer reside within 
 the distance of five myriametres (ten leagues, equal to about twenty-five 
 miles). This period of delay, with respect to the indorser or drawer, dom- 
 iciled at a greater distance than five myriametres from the place where the 
 Bill of Exchange was payable, shall be increased one day for every two 
 and a half myriametres exceeding the five before mentioned. In the case 
 of the protest of Bills of Exchange drawn in France, and payable out of 
 the continental territory of France in Europe, the remedy against the 
 drawers and indorsers residing in France must be pursued within the fol- 
 lowing periods, to wit : Two months for Bills payable in Corsica, in the 
 island of Elba, or of Capraja, in England, and in the countries bordering 
 on France ; four months for those payable in the other States of Europe ; 
 six months for those payable in the ports of the Levant, and on the northern 
 coasts of Africa ; a year for those payable on the western coasts of Africa, 
 as far as and including the Cape of Good Hope, and in the West Indies ; 
 two years for those payable in the East Indies. These periods of delay 
 are allowed in the same proportions, for pursuing the remedy against the 
 drawers and indorsers residing in the French possessions situated out of 
 Europe. The above-mentioned delays, of six months, a year, and two 
 years, are allowed to be doubled in time of maritime war." Code of Com- 
 merce, by Rodman, pp. 139, 141 (edit. 1814). In the 'Vecent case of 
 Rothschild v. Currie, 1 A. & El. (N. S.) 43, the Court of Queen's Bench 
 seems to construe the French Code as I have construed it. See also 
 Pardessus, Droit. Comm. Tom. 2, art. 430, 431 ; Pothier, De Change, n. 
 152; Jousse, Sur L'Ord. 1673, art. 13-15, pp. 105-107 (edit. 1802); 
 Locr6, Esprit du Code de Comm. Tom. 1, tit. 8, § 1, art. 165, 166, pp. 
 519-522. 
 
CHAP, vhl.] PEOCEEDINGS ON NON-PAYMENT. 447 
 
 notwithstanding some contrariety of opinion in the au- 
 thorities. ^ 
 
 § 340. In the next place, let us proceed to the considera- 
 tion of the mode, or manner, in which notice is to be given. 
 This, indeed, is so intimately connected with the time when 
 notice is to be. given, that much of what would properly en- 
 gage our attention here 'has been already anticipated under 
 the preceding head. The mode or manner of giving notice 
 admits of various modifications and directions, according to 
 circumstances. It may be, (1.) either personal ; (2.) or at 
 the domicile or place of business of the party ; (3.) or by the 
 post ; (4.) or by a special messenger ; or (5.) by a regular 
 packet-ship or steamer ; (6.) or by an irregular or casual 
 conveyance, when that is the only one properly within the 
 reach of the holder, or other party, bound to give the notice. 
 All these .different modes, and the circumstances to which 
 they properly apply, have been sufficiently, for practical pur- 
 poses, already examined. It may, however, be here added, 
 that when there are no regular means of communication be- 
 tween the places from which and to which notice is to be sent, 
 in a direct route, or to the direct port, it will be sufficient if 
 the holder avails himself of the next most convenient mode, 
 or route of conveyance, by an application, as it were, of the 
 doctrine cy pres, or by any one, which is reasonably fit for 
 the purpose.^ It is certainly not necessary to send a special 
 messenger to another State, or to another foreign country ; 
 although that mode of notice is sometimes resorted to, in 
 cases of notice in the same State or country where both the 
 parties reside.^ 
 
 ' Ibid. Hirsehfield v. Smith, Law Rep. 1 C P. 340. 
 
 '^ Story on Bills, §§ 298, 383 ; ante, § 336. 
 
 = Ante, § 338 ; Story on Bills, §§ 289, 295 ; McGruder v. Bank of Wash- 
 ington, 9 Wheat. 598 ; Chitty on Bills, ch. 10, pp. 503 - 505 (8th edit.) ; 
 Id. pp. 518, 519 ; Bayley on Bills, ch. 7, § 2, pp. 279, 280 (5th edit.) ; 3 
 Kent, Lect. 44, p. 107 (5th edit.) ; Bank of Columbia v. Lawrence, 1 Pet. 
 578, 584; Hazelton Coal Co. v. Ryerson, Spencer (N. J.), 129; Kufh 
 V. Weston, 3 Esp. 54. This case was a case of assumpsit on a foreign Bill 
 of Exchange, drawn by Garde, at Exeter, on Messrs. Guetano & Co., at 
 
448 PROMISSORY NOTES. [CHAP. Vffl. 
 
 § 341. The mode or manner of the notice admits also of 
 some other modifications. It may be oral, or verbal,^ or it 
 may be in writing^. It may be oral or verbal in all cases 
 where it is directly made to the person who is to receive the 
 notice ; and it may also be oral or verbal, when it is at his 
 place of business, or at his dwelling-house ; although, in the 
 latter cases, it is most usually in writing.^ But where the 
 
 Genoa. The defendants indorsed the Bill to the plaintiffs. The Bill was 
 presented for acceptance at Genoa, and the acceptance refused. The de- 
 fence was, that it had not been presented in a .reasonable time, nor the 
 protest for non-acceptance sent to this country as soon as it ought to have 
 been, and that, therefore, the defendants had not had due notice of its be- 
 ing dishonored. In answer to this, it was proved that the Bill had been 
 put into the post-office at London the third day after it was received from 
 the defendants, which was the first Italian post-day after it had been so re- 
 ceived. It was further proved, that, from the disturbed state of Italy for 
 some time before, the regular post had been interrupted, and the Bill had 
 not arrived at Genoa till a month after it became due ; that it was imme- 
 diately presented for acceptance, which, being refused, it was protested, 
 and the protest sent off immediately by the post to England. Lord Ken- 
 yon said : " That the defendants grounded their defence on the supposed 
 laches of the plaintiff, but he was of opinion that if the plaintiffs had sent 
 the Bill by the ordinary course of the post, they had done all they were 
 called upon to do ; and they could not foresee that the post would be in- 
 terrupted, and it could not be expected that they should send the Bill by 
 a special messenger, or any extraordinary mode of conveyance." His 
 lordship said, he therefore thought the plaintiffs had been guilty of no 
 laches, and were entitled to recover, and they accordingly had a ver- 
 dict. 
 
 ' See Metcalfe v. Eichardson, 20 Eng. L. & Eq. 301 ; Woodin v. Fos- 
 ter, 16 Barb. 146 ; Beals u. Peck, 12 Barb. 252 ; Gilbert v. Dennis, 3 Met. 
 495 ; Thompson v. Williams, ii Cal. 160. 
 
 « Story on Bills, § 300; Chitty on Bills, ch. 10, pp. 502, 503 (8th edit.) ; 
 Bayley on Bills, ch. 7, § 2, pp. 276-278 (5th edit.); 3 Kent, Lect. 44, 
 p. 106, 107, (5th edit.) ; Cuyler v. Stevens, 4 Wend. 566 ; United States v. 
 Barker's Adm'r, 4 Wash. 464 ; Williams v. Bank of United States, 2 
 Peters, 100 ; Thomson on Bills, ch. 6, § 4, pp. 474, 475 (2d edit.). Mr. 
 Chitty (on Bills, ch. 10, p. 502, 8th edit.) says: "With respect to the 
 mode of giving the notice, personal service is not necessary, nor is it req- 
 uisite to leave a written notice at the residence of the party, but it is suffi- 
 cient to send to or convey verbal notice at the counting-house or place of 
 abode of the party, without leaving notice in writing ; and the giving such 
 
CHAP. Vm.] PROCEEDINGS ON NON-PAYMEKT. 449 
 
 notice is to be sent by the post, or other regular conveyance, 
 and not by a special messenger, there it seems indispensable 
 that it should be in writing ; for, otherwise, the party could 
 not. have any means accurately to ascertain its character, 
 object, or operation.^ [Where an indorser, residing in the 
 
 verbal notice to a servant at his home, the defendant having left no clerk in 
 his counting-house, as it was his duty to do, suffices. And where the 
 drawee has a counting-house where he transacts business, and at which the 
 Bill was addressed, it suffices to apply there for the purpose of giving no- 
 tice without attempting to give or leave notice at the residence of the 
 drawee. And it is sufficient, both in the case of a foreign and an inland Bill, 
 to send twice during hours of business, and to knock there and wait a short 
 time, and then go away without leaving or sending any written notice." 
 
 ' Ibid.; Chitty on Bills, ch. 10, pp. 517, 518 (8th edit.) ; Story on Bills, 
 § 300 ; Bank of Columbia v. Lawrence, 1 Peters, 682. Mr. Thomson (on 
 Bills, ch. 6, § 4, pp. 475 - 477, 2d edit.) says : " Although verbal notice, if 
 proved, does not appear to be excluded, even when the parties reside in 
 different places, it is most convenient in such a case to send notice by letter. 
 The post being the authorized channel for transmitting letters, it is in all 
 cases safest to send them by it. If it is proved that a letter containing no- 
 tice was put into the post-office, properly addressed, but only in that ,case, 
 this will be siifficient to preserve recourse, whether the letter has been de- 
 livered or not. The same rule is applicable, in London,, to letters of notifi- 
 cation put into the two-penny post ; it being held, that putting them into it 
 in due time, it is sufficient, as to parties residing within the limits of that 
 post, whether the letters reach them or not. * It will also be sufficient, in 
 Edinburgh, to put such letters into the penny-post. But such notice must be 
 put into a regular post-office. The post-mark will be held good evidence 
 of the letter being put into the post-office, and of the date of putting it in. 
 If a person sends notice by a private hand when he might have the benefit 
 of the post, it would seem, though the point has not been expressly decided, 
 that he thereby takes on himself the risk of irregularity in the conveyance, 
 since he is blamable for not adopting the most secure conveyance. At 
 least, if the conveyance arrive much later than the post, the delay must 
 rest with him. It is difficult to lay down a precise rule as to the extent of 
 delay in the arrival of a private conveyance which will nullify the notice, 
 although such delay as prevents the person getting notice, even for one 
 post, from sending advice to his correspondent, will probably be fatal. It 
 would likewise appear, that in such a case the holder must prove the safe 
 arrival of the letter. But when a person, instead of sending notice directly 
 by post, writes to a correspondtent on the spot, to give notice, and that cor- 
 respondent goes to the defendant's warehouse for this purpose sooner than 
 ' a letter could have reached him by post, but is prevented by finding the 
 29 
 
450 PEOMISSOEY NOTES. [CHAP. VIIL 
 
 town of F., upon a Note payable in the town of R., was in 
 the latter town on the day of the maturity of the Note, lying 
 ill at the house of the notary who protested it ; and the 
 notary took a written notice of the protest to the indorser's 
 room, approached his bed, and remarked to him that he had 
 that day protested a Note on which he was indorser, but did 
 not describe the Note, and could not say that the indorser 
 heard the remark, and then left the written notice on the 
 mantel-piece in the room ; it was held that the notice was 
 sufficient.^] 
 
 § 342. Another most important consideration, as to the 
 mode or manner of notice, respects the particular place, or 
 post-office, to which the written notice is to be sent. The 
 party entitled to notice may reside (1.) in a town or place 
 where there is no 'post-office ; (2.) or, in a town or place 
 where there are two or more post-offices ; (3.) or, he may be 
 accustomed to receive the letters addressed to him, by and 
 through the post-office of a different town from that in which 
 he resides ; (4.) or, he may be accustomed to receive letters 
 equally from the post-office of the town where he resides, and 
 from the post-offices, also, in the contiguous towns ; (5.) or, 
 he may reside in the country, on a plantation, where there 
 are no towns, but merely a country court-house, or country 
 post-offices in different parts of the same county, such, for 
 example, as in Virginia and some others of the Southern 
 States of America ; (6.) or, he may reside at two places al- 
 
 warehouse shut during business hours, the defendant cannot plead the late- 
 ness of the notice. Further, if it is necessary to send notice by a special 
 messenger, as where the party receiving it lives out of the course of the 
 regular post, the expense of such notice will be allowed ; and the person 
 giving it will not be responsible for the accidental delay of the conveyance, 
 as he could not have employed any other. When notice is to be sent 
 abroad to a place to which there is no post, it is sufficient to send it by the 
 ordinary conveyance, as by the first regular ship bound to that place ; and it 
 will not be an objection that it has not been sent by a ship bound else- 
 where, but which accidentally touched at the place for which the notice 
 was intended before the arrival of the regular ship.'' 
 » Miles V. Hall, 12 S. & M. 332. 
 
CHAP. Vni.] PROCEEDINGS ON NON-PAYMENT. 451 
 
 ternately during the year, goipg frequently from one to the 
 other. All these different classes of cases (and others might 
 be mentioned) may practically require different modiff- 
 cations, as to the mode of notice ; and some of them 
 may involve questions of no inconsiderable nicety and per- 
 plexity. 
 
 § 343. In general, it may be stated ; First, That, if the 
 party entitled to notice resides in a town or village where 
 there is no post-office, the letter containing the notice may be 
 sent to the post-office where he is accustomed to receive his 
 letters, if that is known, or can by reasonable inquiries be 
 found out. If upon such reasonable inquiries it cannot be 
 ascertained at what post-office he is accustomed to receive his 
 letters, then it will be sufficient to send the letter to the post- 
 office of the neighboring town nearest his residence, or as 
 near as can be ascertained.^ Secondly, If he resides in a 
 town where there are two or more post-offices (a not infre- 
 quent case in our Northern States), then the letter may be 
 sent' to either post-office in the town,^ unless upon reasonable 
 inquiries it can be ascertained that he is accustomed to 
 receive his letters at one of the offices only in that town,^ in 
 which latter case it should be sent to the accustomed post- 
 office, and not elsewhere.* Thirdly, If he is accustomed to 
 
 ' See Shed v. Brett, 1 Pick. 401 ; Ireland v. Kip, 11 John. 231 ; Davis 
 v. Williams, 1 Peck, 191 ; Bank of the United States v. Carneal, 2 Peters, 
 543, 551 ; Gist v. Lybrand, 3 Hamm. (Ohio) 319. By a statute of Louisiana, 
 of 13th March, 1837, § 2, notice, when sent by mail, must be sent to the 
 post-office nearest to the party's residence. Union Bank of Louisiana v. 
 Brown, 1 Bob. 107 ; Mechanics' & Traders' Bank v. Compton, 3 Rob. 4 ; 
 Nicholson v. Marders, 3 Kob. 242 ; Duncan v. Sparrow, 3 Bob. 164, 167. 
 
 * Cabot Bank v. Russell, 4 Gray, 167. 
 ' Morton v. Westcott, 8 Cush. 425. 
 
 * Cuyler v. Nellis, 4 Wend. 398. See Nashville Bank v. Bennett, 1 
 Yerger, 166 ; Catskill Bank v. Stall, 15 Wend. 365 ; Downer v. Remer, 21 
 Wend. 10 ; Gale v. Kemper's Heirs, 16 Miller, 205. ; Bank of Geneva v. 
 Hewlett, 4 Wend. 328; Bank of Manchester v. Slason, 13 Verm. 334; 
 Hunt V. Fish, 4 Barb. 324 ; Carmena v. Bank of Louisiana, 1 Robinson, 
 369 ; Woods v. Neeld, 44 Penn. St. 86. 
 
452 PKOMISSORY NOTES. [CHAP. VIH. 
 
 receive his letters at a postjoffice in a neighboring town, 
 either because near to his actual residence, or for any other 
 Veason, and that fact is known, or can by reasonable inquiries 
 be found out, then notice certainly may be,^ and probably 
 should be, sent through such neighboring post-office.^ 
 Fourthly, If he is accustomed to receive his letters some- 
 times from the post-office in his own town, and sometimes 
 from that ii; a neighboring town, or sometimes from air the 
 post-offices of his own town, there being several, or sometimes 
 from post-offices in different towns in his neighborhood, the 
 letter, sent to either, will be good notice, even although it 
 might reach him earlier by the one route than by the other, 
 if the latter fact be unknown to the party who sent the notice.** 
 
 ' Morris v. Husson, 4 Sandf. 93. 
 
 ' Reid V. Payne, 16 John. 218 ; Bank of Geneva v. Howlett, 4 Wend. 
 328 ; Bank of United States v. Carneal, 2 Peters, 543, 551 ; Bank of Lou- 
 isiana V. Tournillon, 9 Louis. Ann. 132 ; Bank of Columbia v. Lawrence, 1 
 Peters, 578 ; Carmena v. Bank of Louisiana, 1 Robinson, 369 ; Hunt v. 
 Fish, 4 Barb. 324. But see Seneca Co. Bank v. Neass, 3 Comst. 442 ; S. 
 C, 5 Denio, 329 ; Mercer v. Lancaster, 5 Barr, 160 ; Jones v. Lewis, 8 
 Watts & Serg. 14. 
 
 ' Bank of Utica v. Smith, 18 John. 230 ; Montgomery Bank v. Marsh, 3 
 Selden, 481. See Bank of Columbia v. Lawrence, 1 Peters, 582; Me- 
 chanics' 8f Traders' Bank of New Orleans v. Compton, 3 Rob. 4 ; Nichol- 
 son V. Marders, 3 Rob. 242 ; Hazelton Coal Co. v. Ryerson, Spencer, N. J. 
 129; Bank of the United States v. Carneal, 2 Peters, 543, 649, 550. In 
 this last case, the Court said : " Then, as to the other point of notice, the 
 facts are, that the defendant, Carneal, resides in Campbell County, in the 
 State of Kentucky. The Note became due on the 24th of October, 1820, 
 and on the next day the notary put a sealed notice of the protest and non- 
 payment into the post-office in Cincinnati, directed ' To Thomas D. Car- 
 neal, Campbell County, Kentucky,' the postage on which was not paid. At 
 that time, Carneal's residence in Campbell County was without the limits of 
 any post-town, and about two miles from Cincinnati, across the river Ohio ; 
 and his residence was well known to the officers of the bank, as well as the 
 postmaster at Cincinnati. The county-seat of Campbell County is New- 
 port, where there is a post-office, about three miles distance from Carneal's 
 residence, the river Licking being between them ; and there is also another 
 post-office at Covington, below the river Licking, about two miles' distance 
 from his residence. In October, 1820, the mails from Cincinnati passed 
 once a week only through Covington, and three times a week through 
 
CHAP. VIII.] PROCEEDINGS ON NON-PAYMENT. 453 
 
 Fifthly, If he resides ia the country on a plantation, in a 
 county where there is no town, or wliere there are several 
 
 Newport. Carneal was in the habit of receiving letters at the Newport 
 office, as well as at the offices in Covington and Cincinnati. He was in 
 the habit of receiving all the letters directed to him at Cincinnati at the 
 office in that place, and had given orders to the postmaster to detain all 
 such letters there until he called for them, He visited Cincinnati ver}' fre- 
 quently, and almost daily, having business, and being a director of a bank 
 located at that place. The postmaster was in the habit of sending letters 
 directed to him, in Campbell County, by the Covington mail, whenever he 
 observed the address, unless, as was sometimes the case, he called for letters 
 at the office before the Covington mail Wcis sent. But other letters, 
 directed generally to Campbell County, when the place of residence of the 
 party was unknown, were sent by the postmaster to Newport. The notary 
 himself, when he put the present notice into the post-office at Cincinnati, 
 supposed that Carneal received all his letters at that office. The first 
 mail which left Cincinnati for Newport, after the deposit of this notice, was 
 on the 26th of October ; and the first which left for Covington was on the 
 28th of the same month. There is no evidence in the case that the letter 
 in question went either by the mail of the 26th to Newport, or by that of 
 the. 28th to Covington. The defendant, Carneal, has not produced the 
 letter, if it was ever received by him ; and the circumstances afford a strong 
 presumption that it might have been received at Cincinnati. Such is a 
 summary of the material facts, upon which this Court is called to pronounce, 
 whether there was due diligence in the transmission of the notice to the 
 defendant. The latter having asked the Court below to instruct the jury 
 as in case of a nonsuit ; and the Court having acceded to his request, that 
 instruction can be maintained only upon the supposition that there was no 
 contrariety of evidence as to the facts which ought to have been left to the 
 jury ; and, consequently, every inference, fairly deducible from the facts 
 which afforded a presumption of due notice, ought to be made in favor of 
 the plaintiffs. It is difficult to lay down any universal rule, as to what is 
 due diligence in respect to notice to indorsers. Many cases must be de- 
 cided upon their own particular circumstances, however desirable it may 
 be, when practicable, to lay down a general ivle. When notice is sent by 
 the mail, it is sufficient to direct it to the town where the party resides, if it is 
 a post-town. If it is not, then to the post-office or post-town nearest to his 
 residence, if known. But the rule, as to the nearest post-office, is not of 
 universal application, for if the party is in the habit of receiving his letters 
 at a more distant post-office, or through a more circuitous route, and that 
 fact is known to the person sending notice, notice sent by the latter mode 
 will be good. And where the party is in the habit of receiving his letters 
 at various post-offices, to suit his own convenience or business, it may be 
 sufficient to send it to either. The object of the law in all cases is, to en- 
 
454 PROMISSORY NOTES. [CHAP. Vni. 
 
 county post-of35ces, the same general rules will apply. Notice 
 sent to the post-office, where he is accustomed to receive his 
 
 force the transmission of the notice by such a route as that it may reach the 
 party in a reasonable time. This doctrine is fully recognized by this Court 
 in the case of The Bank of Columbia v. Lawrence, decided at the last term. 
 (1 Peters, 5?9.) It has been objected, that the direction of this letter to 
 Campbell Coiirity generally was not sufficient, but that it ought to have 
 been directed to the nearest office, for otherwise it might happen, that it 
 would be sent to a post-office which, though the county-seat, might be very 
 distant from the residence of the party. AVhether a mere direction to the 
 county, without further specification, where the party does not-reside in 
 any town therein, would be sufficient in air cases, and under all circum- 
 stances, we do not think it necessary to decide. That question may well be 
 left until it is necessary in judgment. But where the description is general, 
 if it is in fact sent to the proper post-office, or if, after due inquiry, it is the 
 only description within the reach of the person sending the notice, we think 
 it may be safely declared to be sufficiently certain, and that a different doc- 
 trine would materially clog the circulation of negotiable paper. We think 
 the description in the present case was in every view sufficient. There 
 was no misdirection ; for Carneal did live in Campbell County. His actual 
 residence was well known to the postmaster at Cincinnati, and the description 
 did not and could not mislead him. If the direction was observed, it would 
 be sent to Covington, or would be delivered at Cincinnati. If not, it would 
 be sent, at furthest, to Newport. Then, was the notice in fact duly given, 
 or duly sent through the proper post-office ? We are all of opinion that it 
 was. The post-office at Cincinnati was almost as near to the party's resi- 
 dence as that at Covington. The difference is too trifling to afford any 
 just ground of preference ; and Cincinnati was the place where he was 
 most likely to receive the letter promptly, since- it was the place of his busi- 
 ness, and of his habitual and almost daily resort. If it had never been 
 transmitted from that office at all, we are not prepared to say, that under 
 such circumstances the notice left there was not of itself sufficient, since 
 the party was known there, and his description unequivocal. It does not 
 appear, in point of fact, that it ever left that place for any other post-office. 
 If it did not, the strong presumption is, that it was there delivered to the 
 party. But if -it was sent to Newport, how can the Court say that it was mis- 
 sent ? The party was in the habit of receiving letters there ; it was the county- 
 seat ; and the mail by that route was three times a week, and that by Cov- 
 ington only once a week. The probabilities, therefore, in favor of an early 
 receipt of the letter, from this circumstance, might fairly balance any in the 
 opposing scale, from the increase of distance and the intervention of the 
 river Licking. And, in fact, the letter would at that time have reached 
 Newport two days earlier than it would have reached Covington. We 
 think it would be inconvenient and dangerous to lay down any rule, that 
 
CHAP. VIII.] PROCEEDINGS ON NON-PAYMENT. 455 
 
 letters, if known, will be proper ; if unknown, or it can be 
 found out on reasonable inquiries, then to the nearest to his 
 residence ; if that is unknown, or cannot on such inquiries 
 be found out, then it may be sent to the most generally used 
 post-office, such as that at or near the county court-house, or 
 perhaps it will be sufficient, in such a case, to send it directed 
 generally to the county, or district of the county, where he 
 resides.! Sixthly, If he resides at two places alternately 
 
 the person sending a notice ought, under such circumstances, to direct the 
 letter to the nearest post-office. We think that the notice would have been 
 good by either route ; indeed, good, if left at the post-office at Cincinnati." 
 1 Story on Bills, § 297; Weakly v. Bell, 9 Watts, 273. See Teatman 
 V. Erwin, 5 Miller, 264 ; Bank of United States v. Carneal, 2 Peters, 543 ; 
 Bank of Columbia v. Lawrence, 1 Peters, 578, 583, 584. In this case, Mr. 
 Justice Thompson, in delivering the opinion of the Court, said : " So, 
 when the holder and indorser live in different post-towns, notice sent by 
 the mail is sufficient, whether it reaches the indorser or not. And this for 
 the same reason, that the mail, bein^ a usual channel of communication, 
 notice sent by it is evidence of due diligence. And for the sake of gen- 
 eral convenience, it has been found necessaryto enlarge this rule; and it 
 is accordingly held, that, when the party to be affected by the notice re- 
 sides in a different place from the holder, the notice may be sent by the 
 mail to the post-office nearest to the party entitled to such notice. It has not 
 been thought advisable, nor is it believed that it would comport with prac- 
 tical convenience, to fix any precise distance from the post-office, within 
 which the party must reside, in order to make this a good service of the 
 notice. Nor would we be understood as laying it down as a universal rule, 
 that the notice must be sent to the post-office nearest to the residence of 
 the party to whom it is addressed. If he was in the habit of receiving his 
 letters through a more distant post-office, and that circumstance was known 
 to the holder, or party giving the notice, that might be the more proper 
 channel of communication, because he would be most likely to receive it in 
 that way ; and it would be the ordinary mode of communicating informa- 
 tion to him, and therefore evidence of due diligence. In cases of this 
 description, where notice is sent by mail to a party living in the country, 
 it is distance alone, or the usual course of receiving letters, which must 
 determine the sufficiency of the notice. The residence of the defendant, 
 therefore, being in the county of Alexandria, cannot affect the question. 
 It was in proof, that the post-office in Georgetown was the one nearest his 
 residence, and only two or three miles distant, and through which he usu- 
 ally received his letters. The letter containing the notice, it is true, was 
 directed to him at Georgetown. But there is nothing showing that this 
 
456 PROMISSORY NOTES. [CHAP. VIH. 
 
 during the year, being generally at one place during one 
 portion of the year, and at the other the rest, but going fre- 
 quently from the one to the other, notice of the dishonor 
 directed to him at either place will be good and sufiBcient.^ 
 Indeed, in all these classes of cases, if the holder, or other 
 person bound to give notice, is unable, after diligent in- 
 quiries, to ascertain the particular post-office to which the 
 letter of notice ought to be sent, it seems to be sufficient for 
 him to put it into the proper post-office, from which it is to 
 be forwarded, directed to the proper town or county, where 
 the party entitled to notice resides, and leave it there, with- 
 
 occasioned any mistake or misapprehension with respect to the person in- 
 tended, or any delay in receiving the notice. And as the letter was there 
 to be delivered to the defendant, and not to be forwarded to any other 
 post-office, the address was unimportant, and could mislead no one. Ko 
 cases have fallen under the notice of the Court which have suggested any 
 limits to the distance from the post-office within which a party must reside, 
 in order to make the service of the notice in this manner good. Cases, 
 however, have occurred, where the distance was much greater than in the 
 one now before the Court, and the notice held sufficient. 16 John. 218. 
 In cases where the party entitled to notice resides in the country, unless 
 notice sent by mail is sufficient, a special messenger must be employed for 
 the purpose of serving it. And we think that the present case is clearly 
 one which does not impose upon the plaintiffs such duty. We do not mean 
 to say, no such cases can arise ; but they will seldom, if ever, occur, and at 
 all events such a course ought not to be required of a holder, except under 
 very special circumstances. Some countenance has lately been given to 
 this practice in England, in extraordinary cases, by allowing the holder to 
 recover of the indorser the expenses of serving notice by a special messen- 
 ger. The case of Pearson v. Crallan (2 Smith, 404 ; Chitty on Bills, 503, 
 note) is one of this description. But in that case the Court did not say, 
 that it was necessary to send a special messenger, and it was left to the jury 
 to decide whether it was done wantonly or not. The holder is not bound 
 to use the mail for the purpose of sending notice. He may employ a special 
 messenger if he pleases ; but no case has been found, where the English 
 courts have directly decided that he must. To compel the holder to incur 
 such expense would be unreasonable, and the policy of adopting a rule, 
 that will throw such an increased charge upon commercial paper on the 
 party bound to pay, is. at least very questionable." 
 
 ' Exchange and Banking Conipany of New Orleans v. Boyce, 3 Rob. 
 307. 
 
CHAP. Vin.] PROCEEDINGS ON NON-PAYMENT. 457 
 
 out further (Jirections, to take the ordinary course of the mail 
 route to such town or county, according to the general regu- 
 lations of the post-office depai'tment.^ 
 
 § 344. In many cases, where the actual residence of the 
 party entitled to notice cannot, after reasonable inquiries, be 
 ascertained, it may, perhaps, be sufficient to direct the letter 
 of notice to the place where the Note bears date ; ^ or to the 
 place where tlie indorser was residing at the' time of his in- 
 dorsement, if no change of residence is known ; ^ or to the 
 place where the agent, or other party, procuring the discount, 
 at the time states that the indorser resides ; * or even to a 
 place where the indorser does not reside, if another party to 
 the Note, iipon inquiry, states that to be his residence.^ A 
 fortiori, if, upon diligent inquiries, information is obtained 
 of the residence of the indorser in a place where he does not 
 at the time actually reside, and the notice is directed accord- 
 ingly to that place, it will be sufficient to bind the indorser.^ 
 In many cases, where an indorser of the Note points out a 
 particular place, to which the notice shall be sent to him, it 
 will be sufficient that the notice is sent to him at that place,'^ 
 although it may not be his domicile, or place of business ; 
 and the antecedent parties will also be bound by a notice 
 from him after the receipt of such notice, if given in due time, 
 in the same manner and under the same circumstances as if 
 the notice had been regularly sent to his domicile, or place 
 
 ^ See Bank of Utica v. De Mott, 13 John. 432 ; Seneca Co. Bank v. 
 Neass, 3 Comst. 442 ; S. C, 5 Denio, 329. 
 
 ' See Moodie v. Morrall, 1 S. C. Const. 367. But see Hill v. Varrell, 3 
 Greenl. 233 ; Spencer v. Bank of Salina, 3 Hill, 520. 
 
 ' Bank of Utica v. Phillips, 3 Wend. 408 ; McMurtrie v. Jones, 3 Wash. 
 206. 
 
 * Bank of Utica v. Davidson, 5 Wend. 587 ; Catskill Bank v. Stall, 15 
 Wend. 364. 
 
 ' Ransom v. Mack, 2 Hill, 587; Bank of Utica v. Bender, 21 Wend. 
 643. 
 
 ° See Bank of Utica v. De Mott, 13 John. 432 ; Reid v. Payne, 16 John. 
 218; post, §3i7. 
 
 ' See Morris v. Husson, 4 Sandf. 93. 
 
458 PROMISSORY NOTES. [CHAP. VIII. 
 
 of business, at least, if there be no fraud.^ [Thus, where an 
 indorser living in Auburn wrote after his name, "Auburn 
 
 ' Shelton V. Braithwaite, 8 M. & W. 252. In this case, at the trial before 
 Rolfe, B., at the Middlesex sittings in Hilary term, it appeared that the 
 Bill was indorsed by the defendant to the plaintiffs, who carried on busi- 
 ness under the title of the Patent Rivet Company at Smethwick, about 
 four miles from Birmingham, and by them to the Birmingham and Midland 
 Counties' Bank, who indorsed it to one Williams. It became due on the 
 17th of August, 1840, when it was presented for payment, and dishonored. 
 On the 18th it was returned to the bank, who received it at Birmingham 
 on the 19th. The plaintiff, Shelton, had previously given directions at the 
 bank, that all communications for the Patent Rivet Company shouldbe 
 made to him at Tremadoc, in Csernarvonshire, whither he had gone on 
 business, being engaged in a mining concern in the neighborhood. The 
 bank accordingly sent notice of dishonor of the Bill to him at Tremadoc, 
 by the post, which reached him there on the 21st of August ; and on the 
 22d, he, Shelton, sent notice of dishonor by post to the defendant. It was 
 objected for the defendant, that this notice was too late ; that the bank 
 ought to have given notice directly to the plaintiffs at Smethwick, instead 
 of sending it to the plaintiff, Shelton, at Tremadoc, in which case the de- 
 fendant would have received notice a day sooner. The learned judge 
 reserved the point, and a verdict passed for the plaintiffs. Afterwards, on 
 a rule for a nonsuit, the question was argued ; and Lord Abinger said : " I 
 am of opinion, that there is no ground for this rule. The question is, 
 whether the plaintiffs could have defended an action against themselves by 
 the bank. They could not ; because notice was sent to a particular place 
 pointed out by one of themselves. If that notice had been given in fraud 
 of the defendant or any other party, that should have been found by the 
 jury. If there are several parties in a firm, and one of them goes to 
 Brighton for a week, and gives notice to their banker to send all letters for 
 the firm to him there, that will be sufiicient, unless there is fraud. An 
 indorser is not bound to be always at his place of residence ; he may not 
 expect the Bill will come back. I think that, if the plaintiffs are bound by 
 the notice they have received, all prior parties are also bound, in the ab- 
 sence of fraud." Mr. Baron Alderson said : " I am of the same opinion. 
 It is clear, that the bank at Birmingham had received due notice ; and the 
 question comes to this, whether the defendant is discharged in consequence 
 of insufficient notice to the plaintiffs ; and I am of opinion, that the notice 
 was sufficient, unless the plaintiffs have in some way disqualified themselves 
 from receiving notice so soon as they otherwise would. They have not so 
 disqualified themselves. The plaintiff, Shelton, being, so far as appears, 
 about to be resident at Tremadoc, some time previously to his going there, 
 directs the bank to send all letters to him at Tremadoc, and they do so 
 accordingly. That appears to me to be sending a notice in a reasonable 
 
CHAP. VIII.] PROCEEDINGS ON NON-PAYMENT. 459 
 
 P. 0." a notice left at the post-ofl&ce in that place was held 
 sufficient ; although otherwise it would have been necessary 
 to have given personal notice. i] 
 
 §•345. Intimately connected with this part of the subject 
 is the consideration of the mode of address and manner of 
 direction of the letter containing the notice of the dishonor, 
 and the consequences of misdirection, as to the mode of ad-, 
 dress or place of direction. When the notice is to be sent in 
 a letter by post, care must be observed that the letter be 
 accurately directed and addressed ; for any mistake occasion- 
 ing delay, and which might have been avoided by due care, 
 will deprive the holder of all remedy against the party to 
 whom the notice ought to have been given. If the party 
 reside in a large city, or town, the direction should not be to 
 him at that place generally, by his surname alone ; but some 
 other special designation should be added to identify the 
 person ; such as the particular street or part of the town 
 wher^ he resides, and his trade or occupation, so as to prevent 
 the risk of misdelivery, which might at least occasion delay 
 in the proper person receiving such notice. Therefore it has 
 been held, that a notice to an indorser, thus, " Mr. Haynes, 
 Bristol," is too general and insufficient, without express 
 evidence that the proper party received it in due time ; 
 because, the place being so populous, there anay be many 
 persons of the same surname there. ^ [So a notice directed 
 
 manner, and as men of business would naturally act. The question which, 
 upon the motion for this rule, the Court thought worthy of consideration, is' 
 answered by the facts. It was then supposed that the plaintiff, Shelton, 
 had his residence at Smethwick, and that, instead of receiving notices 
 there, he had given directions that letters should be sent to him at Trema- 
 doc, where he was going on a visit, and that thereby time was lost, and 
 prior parties placed in a worse situation than if notice had been sent to his 
 ordinary residence. I do not know that even that would have made the 
 notice bad ; but the facts turn out differently." 
 
 ' Baker v. Morris, 25 Barb. 138. 
 
 2 Walter v. Haynes, Ey. & Mood. 149 ; Chitty on Bills, ch. 10, p. 506 
 (8th edit.); Bayley on Bills, ch. 7, § 2, p. 280 (5th edit.). A notice 
 directed to " Mrs. Susan Collins, Boston," was held prima facie sufficient. 
 
460 PKOMISSOEY NOTES. [CHAP. VIII. 
 
 "To the estate of" the deceased iiidorser, naming him, is 
 not sufficient witliout proof that it was actually received by 
 
 True V. Collins, 3 Allen, 438. In this case, the Court say, " It is objected 
 that the direction to ' Mrs. Susan Collins, Boston,' was defective, that the 
 street and number of her residence, which were in the Boston Directory, 
 ought to have been added. And Bayley on Bills (6th edit.), 280, 281, 
 and Story on Notes, §§ 345, 346, are cited in support of the objection. It is 
 also said in Chitty on Bills (10th Amer. edit.), 474, that, ' If a party reside 
 in a large city or town, the direction should not be to him at that place 
 generally, but should state the particular street or part of the town where 
 he resides, or of his trade or occupation.' But.the only decision cited in 
 Bayley or Chitty is Walter v. Haynes, Ry. & Mood. 149, where notice 
 was directed to an indorser of a Bill, ' Mr. Haynes, Bristol,' and Ch. J. 
 Abbott decided, that it was insufBcient without proof that it was received^ 
 because there might be in a large town many persons to whom so general 
 an address might apply. The case, therefore, does not sustain Mr. Chitty'a 
 broad position. It decides only, that a notice to a party who resides in a 
 city or large town is not sufficient, if it be directed to him by his surname 
 alone, without any special designation that may identify him. And in sup- 
 port of that precise point, only, is the case cited in Story on Notes, § 345 
 
 In the present case we are of opinion, in the absence of any authority to 
 the contrary, that notice to the defendant was sufficient." If a person writes 
 his name in such manner that the notary mistakes, as if he should read A. C. 
 instead 'of M., and send notices accordingly, they will be good. Manufac- 
 turers' Bank v. Hazard, 30 N. Y. 226. Spencer v. Bank of Salina, 3 Hill, 
 520 ; Bank of Utica v. De Mott, 13 John. 432. In this last case, Mr. Chief 
 Justice Spencer, in delivering the opinion of the Court, said : " The defend- 
 ant is sued as indorser of a Promissory Note, payable at the Bank of Utica. 
 When the Note fell due, notice of its non-payment was given, by a letter 
 put into the post-office at Utica, directed to the defendant at Canandaigua. 
 It was proved that the defendant lived at Ovid, in the county of Seneca, 
 and had resided there for ten years past. The excuse for the misdirection 
 of the notice is, that the book-keeper, who gave it, was informed by the 
 cashier and some of the directors of the bank, that the defendant resided at 
 Canandaigua. The notice is bad. The defendant was entitled to informa- 
 tion of the non-payment of the Note, and that he was looked to for pay- 
 ment. He had a permanent residence, for ten years, in a different county. 
 With ordinary diligence, the place of his abode might have been ascer- 
 tained ; and it must be the plaintiff's loss, not the defendant's, that the 
 notice was not given. It is an essential part of the contract, that the 
 indorser shall be notified of the non-payment of the Note, that he may take 
 measures accordingly ; and if any loss has happened from the want of 
 notice, it must be borne by the party on whom the burden of giving due 
 notice is thrown by law, and who has been guilty of laches. The case if 
 
CHAP. VIII.] PROCEEDINGS ON NON-PAYMENT. 461 
 
 the defendant, his executor ; ^ it might be otherwise if the 
 notice were directed to the " legal representative " of such 
 indorser, although the name of such representatiye was not 
 stated.^] 
 
 § 346. Indeed, where the party, to whom notice is to be 
 given, resides in a large city or town, it is not always safe, 
 and perhaps, in some cases, it may be held not sufBcient, to 
 send, a notice or direction addressed to him at that city or 
 town, by his Christian name and surname alone, without 
 some further directioii as to his residence, at least, if the 
 party giving the notice has knowledge, or can, -by reasonable 
 inquiries, obtain information of the particular street, or ward, 
 where he resides. Thus, it is said, that a general direction 
 to a person by his Christian name and surname, addressed to 
 him in " London," generally, has been thought to be insuffi- 
 cient. And possibly there may be some foundation for the 
 objection, in cases where the name is very common ; such, 
 for example, as the name "John Smith," of which name 
 there probably are fifty persons in that city. But there is 
 certainly no small danger in requiring any more than the 
 general address and description of the party by his full name, 
 and, if known by his occupation or business also, in the 
 direction of the letter.* Even in large cities, a general direc- 
 tion seems all that ought reasonably to be required, unless in 
 cases where the party has the means within his reach of giv- 
 ing more exact directions, as to the street, or ward, or domi- 
 cile, or place of business of the party. And if the Note itself 
 
 Chapman v. Lipscombe and Powell, 1 John. 294, was peculiarly circum- 
 stanced. There was great diligence used in that case to find out the defend- 
 ant's residence, and the Bill was dated at Norfolk, to which place one of 
 the notices was directed. Here the Note was not dated at any place, and 
 the inquiry was very limited." 
 
 ' Massachusetts Bank v. Oliver, 10 Cush. 557. 
 
 ' Pillow V. Hardeman, 3 Humph. 538 ; Linderman v. Gulder, 34 Penn. 
 St. 54 ; Boyd v. City Savings Bank, 15 Gratt. 501. 
 
 ' Chitty on Bills, ch. 10, p. 506 (8th edit.). See Jones v. Wardell, 6 
 Watts & Serg. 399. 
 
462 PEOMissoBY NOTES. [cHAP. vin; 
 
 should be dated generally, as at " London," or " Manches- 
 ter," it would seem sufficient for the party sending the notice, 
 to use as general a description of the place in the direction 
 of the notice.^ 
 
 § 347. If there be a mistake in the direction, and yet it 
 corrects itself, or it is such as cannot mislead the party to 
 whom the letter is addressed, as, for example, if his surname 
 is " Selwyn," and it is spelt " Selwin," or his Christian name 
 is Josiah, and it is written in the direction in^ an abbreviated 
 form " Josh.," or his Christian name i^ John, and it is written 
 " Jno.," [or if the drawer's name is described as Whitman, 
 instead of Whiting ; ^] in these and the like cases, if the error 
 is merely nominal, and is not calculated to mislead, or does 
 not mislead the party, the mistake will not be fatal. So, if 
 there are several towns of the same name in the same State, 
 or one town in one State of the same name as another in an 
 adjoining State, as, for example, " Manchester," in Massa- 
 chusetts, and " Manchester," in New Hampshire, or " Bed- 
 ford," in Massachusetts, and " NewBedford," in Massachu- 
 setts, the latter being in the language of conversation often 
 called " Bedford " ; in each of these cases, if the letter is in 
 fact sent to the right post-office, the imperfect description 
 will not vitiate it. But it would be otherwise, if the imper- 
 fection in the description led to the transmission to a wrong 
 post-office. There are many towns in different States in the 
 Union which have the same name ; and in such cases it 
 seems almost indispensable, to prevent errors in the trans- 
 mission, that the State where the letter is intended to go, 
 should be added to the direction.^ If, however, the misdirec- 
 tion, as to place, be in consequence of erroneous information, 
 after reasonable inquiries made, the holder, or other party, 
 will be held to be excused, and will retain all his rights, as 
 
 1 CMtty on Bills, ch. 10, p. 505 (Sth edit.) ; Mann v. Moors, Ky. & 
 Mood. 249 ; Clarke v. Sharps, 3 M. & W. 166. 
 * Smith V. Whiting, 12 Mass. 6. 
 » Beckwith v. Smith, 22 Maine, 125 (9 Shepley). 
 
CHAP. VIII.] PROCEEDINGS ON non-paym;ent. 463 
 
 if due notice had been given ; for in such a case he has done 
 all that the law requires in point of diligence.^ 
 
 § 348. In the- next place, as to the form of the notice of 
 the dishonor to be given, or sent to the indorser. No precise 
 form of words is necessary to be used upon such occasions.^ 
 Still, howe^r, it is indispensable ^ that it should either ex- 
 pressly, or by just and natural implication, contain, in sub- 
 stance, the following requisites : (1.) A true description of 
 the Note, so as to ascertain its identity. (2.) An assertion, 
 that it has been duly presented to the maker at its maturity, 
 and dishonored. (3.) That the holder, or other person, giv- 
 ing the notice, looks to the person, to whom the notice is 
 given, for reimbursement and indemnity.* 
 
 ' Eansom v. Mack, 2 Hill, 587; Bank of Utica v. Bender, 21 Wend. 
 643 ; ante, § 344 ; 3 Kent, Lect. 44, p. 107 (5th edit.). 
 
 ' See Housatonic Bank t: Laflin, 5 Cush. 548 ; Crocker v. Getehell, 23 
 Maine, 392. 
 
 " But see Townsend v. Losain Bank, 2 Ohio St. 354. 
 
 * Story on Bills, §§ 301,' 390, and authorities there cited; Tindal v. 
 Brown, 1 Term, 169 ; Per' "BuUer, J., Hartley v. Case, 4 B. & C. 339 ; 
 Mills 1'. Bank of United States, 11 Wheat. 431 ; Bank of United States v. 
 Carneal, 2 Peters, 543 ; Kansom v. Mack, 2 Hill, 587, 593 ; Reedy 
 V. Seixas, 2 John. Cas. 337; Lockwood «. Crawford, 18 Conn. 361 ; Chew- 
 ning V. Gatewood, 5 How. (Miss.) 552 ; 3 Kent, Lect. 44, p. 108 (5th edit.) ; 
 Bayley on Bills, ch. 7, § 2, pp. 256, 257 (5th edit.) ; Chitty on Bills, ch. 
 10, p. 501 (8th edit.). In Hartley v. Case, 4 B. & C. 339, Lord Chief Jus- 
 tice Abbott said : " There is no precise form of words necessary to be used 
 in giving notice of the dishonor of a Bill of Exchange, but the language 
 used must be such as to convey notice to the party what the Bill is, and 
 that payment of it has been I'efused by the acceptor. Here the letter in 
 question did not convey to the defendant any such notice ; it does not even 
 say that the Bill was ever accepted. We therefore think the notice was 
 insufficient, and the rule for a new trial must be discharged." In Solarte 
 V. Palmer, 7 Bing. 630, 533, Lord Chief Justice Tindal, in delivering the 
 opinion of the Court, said : " The notice of dishonor, which is commonly sub- 
 stituted in this country in the place of a formal protest, such formal protest 
 being essential in other countries to enable the plaintiff to recover, most cer- 
 tainly does not require all the precision and formality which accompanied the 
 regular protest, for which it has been substituted. But it should at least inform 
 the party, to whom it is addressed, either in express terms, or by necessary 
 implication, that the Bill has been dishonored, and that the holder looks 
 
464 PROMISSORY NOTES. [CHAP. VIII. 
 
 § 349. And, first, as to the description of the Note in the 
 notice. It is obvious, that, as the object of the notice is to 
 put the party, to whom it is given, in possession of the ma- 
 terial facts on which his own liability is founded, so as to 
 secure the liability of others over to him, and his own reim- 
 bursement, upon payment of the Note, there should be a suf- 
 ficiently definite description of the 'Note to enable him to 
 know to what one in particular the notice applies ; for an in- 
 dorser may have indorsed many Notes of very 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.^ [It has, however, been thought sufficient to 
 
 to him for payment of the amount. The allegation in the declaration is, 
 that the Bill has been presented to the acceptor, who has refused payment, 
 whereof the defendant has had notice ; and, consequently, to satisfy this 
 allegation, though no express form of words is necessary, the notice should 
 convey an intimation to the party, to whom it is addressed, that the Bill is 
 in fact dishonored. Now, looking at this notice, we think no such intima- 
 tion is conveyed in terms, or is to be necessarily inferred from its contents. 
 Besides, it is perfectly consistent with this notice, that the Bill has never 
 been presented at all, and that the plaintiff means to rely upon some legal 
 excuse for the non-presentment. The preseht case is stronger against the 
 sufficiency of the notice than that of Hartley v. Case, where there was at 
 least an allegation, that the Bill had become due, which is not found here. 
 This letter may not improbably have been written with a different intent 
 than that of giving notice of the dishonor to tlie indorser, and may have 
 been information that an action was about to be brought by the attorney^ 
 taking for granted that the notice of the Bill's dishonor had been given in 
 the ordinary way before the Bill was put into his hands for the purpose of 
 suing thereon. At all events, however intended, it appears to us not to 
 amount to such notice. We think, therefore, the judgment ought to be 
 affirmed." The judgment in this case was affirmed in the House of Lords, 
 1 Bing. (N. C.) 194 ; 8 Bligh (N. S.), 874. [But this decision has been re- 
 gretted. See Everard v. Watson, 18 Eng. L. & Eq. 195.] See also Chap- 
 man V. British Guiana Bank, 6 Moore, P. C. 26 ; Caunt v. Thompson, 7 
 M., G. & S. 400. 
 
 ' Story on Bills, § 390 ; Hartley v. Case, 4 B. & C. 340 ; ante, § 348, 
 note ; Beauchamp v. Cash, Dowl. & Ryl. N. P. Cas. 3 ; Mills v. Bank of 
 United States, 11 Wheat. 431 ; Keedy.i;. Seixas, 2 John. Cas. 337 ; Bank 
 of Rochester v- Gould, 9 Wend. 279 ; Smith v. Whiting, 12 Mass. 6, 7 ; 
 
CHAP. Vin.] PROCEEDINGS ON NON-1'AYMENT. 465 
 
 give the names of the maker and indorser, and the amount, 
 if there is no proof of other Notes to which the notice could 
 apply.^] But a misdescription of the Note in the notice will 
 not vitiate, if it does not mislead the party to whom it is ad- 
 dressed, and is not calculated to mislead him, whether the 
 
 Cook V. Litchfield, 5 Seld. 279 ; Cayuga Bank v. Warden, 1 Comst. 415 ; 
 Kansom v. Mack, 2 Hill, 587-593 ; Bradley v. Davis, 13 Shep. 45 ; Clark 
 V. Eldridge, 13 Met. 96 ; Wheaton v. Wilmarth, Ibid. 422. In Mills v. 
 Bank of United States, 11 Wheat. 431, 436, the Court said: "It is con- 
 tended, that this opinion is erroneous, because the notice was fatally defec- 
 tive by reason of its not stating who was the holder, by reason of its 
 misdescription of the date of the Note, and by reason of ita not stating that 
 a demand had been made at the bank when the Note was due. The first 
 objection proceeds upon a doctrine which is not admitted to be correct ; 
 and no authority is produced to support it. No form of notice to an in- 
 dorser has been prescribed by law. The whole object of it is to inform 
 the party to whom it is sent, that payment has been refused by the maker ; 
 that he is considered liable ; and that payment is expected of him. It is of 
 no consequence to the indorser, who is the holder, as he is equally bound by 
 the notice, whomsoever he may be ; and it is time enough for him to ascertain 
 the true title of the holder, when he is called upon for payment. The objec- , 
 tion of misdescription may be disposed of in a few words. It cannot be for 
 a moment maintained, that every variance, however immaterial, is fatal to 
 the notice. It must be such a variance as conveys no sufficient knowledge 
 to] the party of the particular Note which has been dishonored. If it does 
 not mislead him, if it conveys to him the real fact without any doubt, the 
 variance cannot be material, either to guard his rights, or avoid his respou- - 
 sibility. In the present case, the misdescription was merely in the date. 
 The sum, the parties, the time and place of payment, and the indorsement,, 
 were truly and accurately described. The error, too, was apparent on the 
 face of the notice. The party was informed, that on the 22d of September, 
 a Note indorsed by him, payable in sixty days, was protested for non-pay- 
 ment ; and yet the Note itself was stated to be dated on the 20th of the 
 same month, and, of course, only two days before. Under these circum-- 
 stances, the Court laid down a rule most favorable to the defendant. It 
 directed the jury to find the notice good, if there was no other Note pay- ■ 
 able in the office at Chilicothe, drawn by Wood & Ebert, and indorsed by 
 the defendant. If there was no other Note, how could the mistake of date 
 possibly' mislead the defendant ? If he had indorsed but one Note for 
 Wood & Ebert, how could the notice fail to be full and unexceptionable 
 in fact ? " 
 
 , ' Young V. Lee, 18 Barb. 187; Beals v. Peck, 12 Barb. 245 ; Bank of 
 Cooperstown v. Woods, 28 N. Y. 545 - 561. 
 30 
 
466 PKOMISSOEY NOTES. [CHAP. VIU. 
 
 misdescription be in the date, [the amount,^] or the form, or 
 the names of the parties,^ or otherwise ; * [as where it can be 
 shown that there was no other Note in existence to which the 
 description was applicable.*] 
 
 § 350. Secondly, as to the statement in the notice, that the 
 Note has been duly presented and dishonored. This state- 
 ment is essential ^ to establish the claim or right of the hold- 
 er, or other party, ^ving notice ; for, otherwise, he will not 
 be entitled to any payment from the indorser. It will be 
 sufficient, indeed, if the notice sent, necessarily, or even fairly 
 implies, by its terms, that there has been a due presentment 
 and dishonor at the maturity of the Note.^ But mere notice 
 of the fact, that the Note has not been paid, affords no proof 
 whatsoever that it has been presented in due season, or even 
 that it has been presented at all ; for it may be, that the hold- 
 er means to rely upon some legal excuse for non-present- 
 ment.'^ [And where a notice stated that the Note had 
 
 » Snow V. Perkins, 2 Mich. 238. 
 
 ' Dennistoun v. Stewart, 17 How. (U. S.) 606. The notice is insuffi- 
 cient if it does not state the maker's name. Home Ins. Co. v. Green, 19 N. 
 Y. 518. A notice in proper form, but not signed by any one, is insufficient. 
 Klockenbaum v. Pierson, 16 Cal. 375. So a notice, signed by the notary 
 by mistake in the name of the maker, was bad. Cabot Bank v. Warner, 
 10 Allen, 522. 
 
 ' Stockman v. Parr, 11 M. & W. 809 ; S. C, 1 Car. & Kir. 41 ; Kowan 
 V. Odenheimer, 5 S. & M. 44 ; Routh v. Robertson, 11 Ibid. 382. 
 
 * Cayuga Co. Bank v. Wade, 1 Comst. 413. And see Housatonic Bank 
 V. Laflin, 5 Cush. 549; Cook u. Litchfield, 5 Sandf. 330; 5 Selden, 279; 
 Cook V. Litchfield, 2 Bosw. 137 ; Davenport v. Gilbert, 4 Bosw. 532 ; Ful- 
 ton V. Maccracken, 18 Md. 528. . 
 
 ' But see Townsend v. Lorain Bank, 2 Ohio St. 355. 
 
 • Hartley v. Case, 4 B. & C. 340 ; Solarte v. Palmer, 7 Bing. 630, 533 
 S. C, in H. L. 1 Bing. (N. C.) 194; Messenger v. Southey, 1 M. & G. 76 
 Strange v. Price, 10 A. & El. 125 ; Boulton v. Welsh, 3 Bing. (N. C.) 688 
 Dole V. Gold, 6 Barb. 490 ; Cayuga Co. Bank v. Warden, 1 Comst. 413 
 Everard v. Watson, 18 Eng. Law & Bq. 194. 
 
 ' Ibid. ; Armstrong v. Thurston, 11 Md. 157 ; Graham v. Sangston, 1 Md. 
 60; Lockwood v. Crawford, 18 Conn. 361. [But a statement that the ac- 
 ceptor cannot pay the Bill has been thought sufficient. See Metcalfe v. 
 Richardson, 20 Eng. Law & Eq. 301.] 
 
CHAP. Vni.J PROCEEDINGS ON NON-PAYMENT. 467 
 
 been " this day presented for payment," and payment re- 
 fused, but the notice was without date, it was held to be 
 defective.^] 
 
 § 351. Perhaps it is to be lamented, in a practical view, 
 that the rule, originally established in England, has included 
 in it so much strictness ; since the holders of Notes can 
 rarely be able, in the hurry and multiplicity of their business, 
 to weigh the full force of their words, or to understand the 
 necessity of great precision and fulness in the statement of 
 the material facts. The inconveniences of the rule hav£ been 
 severely felt by the mercantile world ; and a few examples 
 may serve to show with what rigorous exactness the rule was 
 at first interpreted and applied. Thus, where the holder 
 sent a letter to the drawer of a Bill, saying : " I am desired 
 to apply to you for the payment of the sum of £150, due to 
 myself on a draft drawn by Mr. C. on Mr. C, which I hope 
 you will, on receipt, discharge, to prevent the necessity of 
 law proceedings, which will otherwise immediately take 
 place " ; it was held to be an insufficient notice, because the 
 letter did not apprise the party of the fact of the dishonor, 
 but contained a mere demand of payment.^ So, where the 
 attorney of the holders sent a notice to the indorser of a Bill 
 in the following language : " A Bill for ^6683, drawn by Mr. 
 K. upon Messrs. J. & Co., and bearing your indorsement, has 
 been put into our hands by the assignees of Mr. A. (the hold- 
 ers), with directions to take legal measures for the recovery 
 thereof, unless immediately paid " ; it was held, for the like 
 reason, that the notice was insufficient.^ So, where a notice 
 was sent by an indorser to a prior indorser, in these words : 
 " The Promissory Note for ^£200, drawn by H. H., dated the 
 18th of July last, payable in three months after date, and in- 
 
 ' Wynn v. Alden, 4 Denio, 163. 
 
 ' Hartley v. Case, 4 B. & C. 339 ; Shelton v. Braithwaite, 7 M. & W. 
 436. 
 
 » Solarte v. Palmer, 7 Bing. 530 ; S. C, 1 Bing. (N. C.) 194 ; 8 Bligh 
 (N. S.), 874. See also Phillips v. Gould, 8 C. & P. 355. But see Ererard 
 V. Watson, 18 Eng. Law & Eq. 194. 
 
468 PEOMISSOBY NOTES. [CHAP. VHI. 
 
 dorsed by you, became due yesterday, and is returned to me 
 unpaid. I therefore give you notice thereof, and request you 
 will let me have the amount thereof forthwith " ; it was held, 
 for the like reason, that the notice was insufficient.^ So, 
 where a letter by the indorsee to the indorser of a Promisr 
 sory Note in thesis words : " This is to inform you, that the 
 Bill I took of you for .£15 2s. 6d. is not took up, and 4s. Qd. 
 expense, and the money I must pay immediately. My son 
 will be in London on Friday morning " ; it was held that the 
 notice, was insufficient, because it did not pointedly state a 
 regular presentment of the Note and dishonor, but rather 
 more an expectation that the party addressed, or some prior 
 party on the Note, had engaged to take it up.^ So, where 
 the indorsees of a Bill of Exchange gave notice to the in- 
 dorser in these words : " Messrs. S. & Co. inform Mr. J. P. 
 that Mr. J. B.'s acceptance, .£87 6s., is not paid. As in- 
 
 ' Boulton V. Welsh, 3 Bing. (N. C.) 688. See also Beauchamp v. Cash, 
 Dowl. & Ryl. 3. On this occasion, Lord Chief Justice Tindal said : " 1 do 
 not see how it is possible to escape from the rule established by the two de- 
 cided cases, without resorting to such subtile distinctions as would make the 
 rule itself useless in practice. The rule requires, that, either expressly 
 or by necessary inference, the notice shall disclose that the Bill or Note 
 has been dishonored. The form of a protest is : ' Know all men, that I, 
 A B, on the day of at the usual place of abode of the said 
 
 have demanded payment of the Bill, of the which the above is the 
 copy, which the said did not pay, wherefore I the said 
 
 do hereby protest the said Bill. Dated this day of .' The two 
 
 ■ important facts are, that payment of the Bill has been demanded of the 
 acceptor, and that payment has not been obtained. In like manner, in 
 the case of a Promissory Note, the notice should show a presentment to the 
 maker, a demand of payment, and refusal. Here, the notice only states 
 that the Note became due, and was returned unpaid. These facts are com- 
 patible with an entire omission to present the Note to the maker. I think, 
 therefore, the notice is insufficient, and that this rule must be made abso- 
 lute." [But this case was apparently not approved in the late case of Mel- 
 lersh V. Rippen, 11 Eng. Law & Eq. 599, where a notice was held good, 
 which erroneously stated the Bill as drawn by the acceptor and accepted 
 iby the drawer, but otherwise described the Bill correctly.] 
 
 ' Messenger v. Southey, 1 M. & G. 76. But see Bailey v. Porter, 14 M. 
 & W. 44 ; Everard v. Watson, 18 Eng. Law & Eq. 194. ' 
 
CHAP. Vin.] PROCEEDINGS* ON NON-PAYMENT. 469 
 
 dorser, Mr. P. is called upon to pay the money, which will 
 be expected immediately " ; it was, for the like reason, held 
 insufficient.! So, where the notice was in the following lan- 
 guage : " This is to give you notice that a Bill drawn by you, 
 and accepted by J. B., for £47 18s. M., due July 9, 1835, 
 is unpaid, and lies due at Mr. F.'s, 65 Fleet Street " ; and 
 another, stating : " A Bill for ^629 17s. 3d, drawn by W. 
 on H., due yesterday, is unpaid, and I am sorry to say the 
 person, at whose house it is made payable, don't speak very 
 favorably of the acceptor's punctuality. I should like to see 
 you upon it to-day " ; and another, stating : " W. H.'s ac- 
 ceptance for £21 4s. 4d., due on Saturday, is unpaid. He 
 has promised to pay it in a week or ten days. I shall be 
 glad to see you upon it as early as possible " ; it was held 
 that all these notices were insufficient.^ [The like rule has 
 been applied to this notice ; " And on the same day I ad- 
 dressed written notices to the indorsers of said Note, inform- 
 ing them that it had not been paid, and that they would be 
 held responsible for the payment thereof."^] 
 
 § 352. A strong disposition has, however, been shown, in 
 some of the recent cases in the English courts, to escape from 
 these rigorous interpretations of the general rule, and to 
 
 ' Strange v. Price, 10 A. & El. 125. It is obvious that the Court, in 
 this case, began at this time to entertain some scruples as to the soundness 
 of the former decisions. Lord Denman, on this occasion, said : " I have 
 some doubt a4 to the reasoning on which the decisions in Hartley v. Case 
 and in Solarte v. Pal|mer have turned ; but the decision in the latter case 
 (as was observed in the Court of Exchequer) is binding, and I think it 
 authorizes our saying here that the notice is not sufficient. As in Solarte 
 V. Palmer, so here, the notice does not convey full information that the Bill 
 has been dishonored. In all the cases where such notices have been held 
 defective, it might have been said that they furnished a reasonable impli- 
 cation of the fact ; but, clearly, that is not sufficient ; the notice must be a 
 positive statement, that the Bill has been accepted and dishonored. In 
 cases where the strict rule has been thought not applicable, there have been 
 circumstances connected with the notice which showed that the necessary 
 implication did arise." 
 
 ' Furze v. Sharwood, 2 A. & El. (N. S.) 388. 
 
 ' Manning v. Hayes, 6 Md. 5. 
 
470 PEOMISSORY* NOTES. [CHAP. VIII. 
 
 place it upon a footing more consonant with the common un- 
 derstanding of merchants, -and" public convenience ; and, at 
 all events, there is a manifest disinclination to extend its 
 operation. The Courts have, therefore, laid hold of any ex- 
 pressions in the notice which might fairly be presumed to 
 indicate that a due presentment or dishonor had taken place, 
 and that the notice was designed to put that fact as the 
 ground of the liability .^ Thus, for example, where the notice 
 to the indorsers was in the following language : " The Bill 
 of Exchange drawn by S. R. on and accepted by C. B., 
 and bearing your indorsement, has been presented for pay- 
 ment to the acceptor thereof, and returned dishonored, and 
 now lies overdue and unpaid with me, as above, of which I 
 hereby give you notice " ; it was held to be a sufficient no- 
 tice.^ So, where the notice to the indorser was in the foUow- 
 
 ' Mr. Chitty (on Bills, ch. 10, p. 501, Sth edit.) says : " There is no pre- 
 cise form of words necessary to be used in giving notice of the non-payment 
 of a Bill ; any act of the holder, distinctly signifying the refusal o^ the 
 drawee, will be a sufficient notice. It has, indeed, been said, in the course 
 of argument, that it is not enough to state in the notice, that the drawee 
 has refused to honor, but that it must go farther, and express that the 
 holder does not intend to give credit to the drawee. But it should seem, 
 that, as the only reason why notice is required, is, that the drawer and 
 indorsers may have the earliest opportunity of resorting to the parties liable 
 to them, it is not necessary that this consequent liability should be stated to 
 them, because that is a legal consequence of the dishonor, of which they 
 must necessarily be apprised by mere notice of the fact of non-payment. 
 The notice, however, must explicitly state what the Bill or Note is, and 
 that payment has been refused by the drawee or maker, and must not be 
 calculated in any way to mislead the party to whom it is given. A letter 
 from an indorsee to a drawer, merely containing a demand of payment, 
 without stating that the Bill had been presented and refused payment, is 
 not sufficient ; nor is a notice, stating the Bill to have been drawn by the 
 party, when, in fact, he was not the drawer, but only an indorser, sufficient, 
 as it misstated the facts. But a letter to the payee and indorser of a Note, 
 in these terms : ' Mr. Ellis (the maker) is unable to pay the Note for a few 
 days ; he says he shall be ready in a week, which will be in time for us, — 
 only form to acquaint you ' ; was held to be a sufficient notice." 
 
 f Lewis V. Gompertz, 6 M. & W. 399. See also Houlditoh v. Canty, 4 
 Bing. N. C. 411. 
 
CHAP. Vin.] PROCEEDINGS ON NON-PAYMENT. 471 
 
 ing language : " I am desired by Mr. H. to give you notice 
 that a Promissory Note, dated and made by S. T., and pay- 
 able to your order two months after date thereof, became due 
 yesterday, and has been returned unpaid ; and I have to re- 
 quest, that you will send the amount thereof, with Is. &d. 
 noting, free of postage, by return of post " ; it was held to 
 be a sufficient notice.^ So, where a parol notice was as fol- 
 lows : "I called to tell Mr. B., that the Bill for ^637 10s. 
 was presented at the banker's, is unpaid and dishonored, and 
 I hope he will call and provide for it " ; it was held to be a 
 sufficient notice.^ So, where the notice was in the following 
 words : " Your Bill drawn on T. T., and accepted by him, is 
 this day returned with charges, to which we request your im- 
 mediate attention " ; it was held to be a sufficient notice.^ 
 So, where the notice was in these ^words : " I beg to inform 
 you, that Mr. D.'s acceptance for £200, drawn and indorsed 
 by you, due 31st July, has been presented for payment and 
 returned, and now remains unpaid " ; it was held that the 
 notice was sufficient.* So, where a notice by an attorney 
 was in the following words : " I am requested to apply to you 
 for payment of £35 9s. 4rf., the amount of an overdue accept- 
 ance drawn by you on and accepted by E. M., and to inform 
 you that unless the same be paid to me, with interest, and 
 bs. for this application, before eleven to-morrow, proceedings 
 will be taken without further notice " ; it was held that the 
 notice was sufficient.^ So, a notice, which states that a Bill 
 or Note " has been dishonored," [or " protested for non- 
 payment," ^] has been held to be sufficient, without stat- 
 
 • Hedger v. Steavenson, 2 M. & W. 799 ; Armstrong v. Christiani, 5 
 C. B. 687. 
 
 ^ Smith V. Boulton, 1 Hurl. & W. 3. 
 
 ' Grugeon v. Smith, 6 A. & El. 490. 
 
 ' Cooke V. French, 10 A. & El. 131, note. 
 
 ' Wathen v. Blackwell, 6 jurist, 738 ; Robson v. Curlewis, 1 Carr. & 
 Marsh. 378 ; S. C, 2 A. & El. (N. S.) 421 ; Stockman v. Parr, 7 Jurist, 
 886 ; S. C, 1 Car. & Ejr. 41 ; 11 Mees. & Wels. 809 ; Eobson u.'Curlewis, 
 3 Gale & Dav. 69. 
 
 " Young V. Lee, 18 Barb. 187. 
 
472 PROMISSORY NOTES. [CHAP. Vm. 
 
 ing that the Bill or Note has been presented for pay-" 
 ment.^. 
 
 ' Edmonds v. Gates, 2 Jurist, 183 ; Stocken v. Collins, 9 Carr. & Pay. 
 653 ; S. C, 7 M. & W. 515 ; King v. Bickley, 2 A. & El. (N. S.) 419 ; 
 Kobson V. Curlewis, 2 A. & El. (N. S.) 421. In this distressing state of 
 the English authorities, turning, as they do, upon such niceties of interpre- 
 tation, it seems important to bring before the learned reader the very full 
 exposition of them given by Lord Denman, in the recent case of Furze v, 
 Sherwood, 2 A. & El. (N. S.) 388, 409. In delivering the opinion of the 
 Court in that case, upon the point already cited, his lordship said '■ " Lord 
 Mansfield, after observing, in the case of Tindal v. Brown, that certainty 
 is of the highest importance in mercantile transactions, proceeded to settle 
 the question there raised, whether the notice of dishonor was, in point of 
 law, too late. The whole Court affirmed that proposition, and more than 
 once set aside a verdict founded on the opposite assumption. Nothing 
 more was required for the decision. But Mr. Justice Willes took a second 
 objection ; and Mr. Justice Ashhurst a third. ' Notice,' said his lordship, 
 ' means something more than knowledge ; because it is competent to the 
 holder to give credit to the maker. It is not enough to say, that the maker 
 does not intend to pay ; but (it ought to be further said) that he (the 
 holder) does not intend to give credit. In the present case, there is no 
 notice ; for the party ought to know whether the holder intends to give 
 credit to the maker, or whether he intends to resort to the indorser.' This 
 is repeated with great approbation by BuUer, J. Near forty years after, 
 the sufficiency of a notice of dishonor was canvassed in an action between 
 Hartley v. Case, decided by Lord Tenterden at Nisi Prius. It ran thus : 
 ' I am desired to apply to you for the payment of the sum of £150, due to 
 myself on a draft drawn by Mr. Case, which I hope you will on receipt 
 discharge, to prevent the necessity of law proceedings, which otherwise will 
 immediately take place.' The report says : ' The Lord Chief Justice was 
 of opinion, as this letter did not apprise the party of the fact of dishonor, 
 but contained a mere demand of payment, it was not sufficient ; and the 
 plaintiff was nonsuited.' After argument, on a rule for setting aside the 
 nonsuit, his lordship said : ' There is no precise form of words necessary to 
 be used in giving notice ' of dishonor, ' but the language used must be such 
 as to convey notice to the party what the Bill is, and that payment pf it 
 has been refused by the acceptor. Here the letter in question did not 
 convey to the defendant any such notice ; it does not even say that the 
 Bill was ever accepted. We, therefore, think the notice was insufficient.' 
 This short judgment, in which the whole Court concurred, comprising 
 Bayley, Holroyd, and LittledaleJ J. J., is perfectly correct in its statement 
 of the fact and the law, and has the merit of adhering closely to the point 
 raised in argument. It has never been questioned by any judicisd author- 
 ity. The same learned Chief Justice was afterwards called upon to decide 
 
CHAP. Vm.] PROCEEDINGS ON NON-PAYMENT. 473 
 
 § 353. Thirdly, as to the statemeiit in the notice, that the 
 holder looks to the indorser, to whom it is sent for reimburse- 
 on the sufEoiency of the following notice : ' A Bill of £683, drawn by' A, 
 upon B C, ' and bearing your indorsement, has been put into our hands 
 by the assignees of Mr. J. K. de Alzedo, with directions to take legal meas- 
 ures for the recovery thereof, unless immediately paid to, gentlemen, your 
 very obedient servants, J. and S. P.' Here was no statement of the dis- 
 honor, the presentment, or the acceptance. If any notice of the dishonor, 
 as a distinct fact, is necessary, this document is plainly worthless. It was 
 so holden by Lord Tenterdeu ; but, from the magnitude of the sum and 
 the importance of the question, his lordship suggested that a bill of ex- 
 ceptions might be tendered. This was done, and the case brought by writ 
 of error into the Exchequer Chamber, when, as might have been expected, 
 the Lord Chief Justice delivered a unanimous judgment, that Lord Ten- 
 terden's direction to the jury was right, and the notice insufficient. It was, 
 however, thought right to bring the matter before the House of Lords, 
 where the late Mr. Justice Parke delivered the opinion of all the judges 
 present (nine in number) to the same effect. Thus, without one dissentient 
 voice, the judges of all the courts, on these different occasions, concurred 
 with Lord Tenterden in holding express noticeof the fact of dishonor to be 
 necessary ; the only point on which he had given an opinion. This was 
 the celebrated case of Solarte v. Palmer. The Lord Chief Justice, in the 
 Exchequer Chamber, laid down this rule, that ' The notice of dishonor 
 should at least inform the party to whom it is addressed, either in express 
 terms, or by necessary implication, that the Bill has been dishonored, and 
 that the holder looks to him for payment of the amount.' Parke, J., when 
 delivering the judges' opinion to the lords, o'mits the latter clause, and 
 merely says, that ' such a notice ought, in express terms, or by necessary 
 implication, to convey full information that the Bill had been dishonored.' 
 This decision, therefore, did not turn upon or require any allusion to the 
 doctrine of Ashhurst and BuUer, J. J., in Tindal v. Brown, on the necessity 
 of stating that the holder looks to the party addressed, and does not give 
 credit to any other person. But much controversy has arisen on the 
 branch of the notice, as to which the Lord Chief Justice and Parke, J. 
 agree, requiring notice of dishonor in express terms, or by necessary impli- 
 cation ; and hence the task of examining all the decisions is imposed upon 
 us. In Grugeon v. Smith, this Court held the dishonor of a Bill to be suffi- 
 ciently notified by the phrase, ' The Bill is this day returned with charges.' 
 A few days after, but without being aware of this decision, the Court of 
 Common Pleas, Boulton v. Welsh, held the notice insufficient, where it is 
 said : ' The Promissory Note ' ' became due yesterday, and is returned to 
 me unpaid ' ; the Lord Chief Justice there observing, that he did not see 
 how it wap ' possible to escape from the rule established by the two decided 
 cases, without resorting to such subtile distinctions as would make the rule 
 
474 PROMISSORY NOTES. [CHAP. VIII. 
 
 •ment and indemnity. Tliis is certainly laid down in some of 
 the authorities as indispensable;^ but it seems now to be' 
 
 itself useless in practice. The rule requires, that, either expressly or by- 
 necessary' irtfefence, the notice shall disclose that the Bill or Note has been 
 diAonored.' Upon which we will merely observe in passing, that there is 
 no necessary diflference of opinion between the two Courts, as Parke, B. 
 supposed in Hedger v. Steavenson. The Common Pleas might have held, 
 that ' returned with charges ' did necessarily imply presentment and dis- 
 honor. And it does not follow from anything we said, that we might not 
 have thought ' returned to me unpaid ' insuflnoient. But the case of Hedger 
 V. Steavenson brought the Court of Exchequer into direct collision with 
 the Common Pleas, not indeed on the sufficiency of the notice, for it was 
 not identical in the two cases, but on the principle of deciding. The Note, 
 &c. ' is returned unpaid,' was the form which the Common Pleas held 
 wrong. The same form, with the addition of Is. 6^. for noting, the Ex- 
 chequer held right ; and Parke, B., while submitting to the authority of 
 Solarte v. Palmer, excepts to the reasons given for the judgment,- and the 
 language in which they are couched, and doubts whether he could go so far 
 as to say, that ' it ought to appeair upon the face of the instrument " by 
 express terms or necessary implication, that the Bill was presented and 
 dishonored " ; ' thinking it ' enough if it appear by reasonable intendment, 
 and would be inferred by any man of business, that the Bill has been pre- 
 sented to the acceptor, and not paid by him.' He remarks, however, that, 
 even if the rule were properly laid down in those words, it ought to receive 
 a more liberal construction than the Common Pleas appeared to have 
 adopted, in which sentiment Barons BoUand and Alderson agreed, having 
 been two of the judges consulted by the lords when Parke, J. promulgated 
 their opinion there. The next case, in order of itime, is Houlditch v. Canty, 
 There the general doctrine was discussed ; and the Lord Chief Justice 
 declared his adherence to Boulton v. Welsh, but distinguished the case 
 then before him. The sufficiency of the written notice was not directly in 
 question ; for it had been followed by a verbal communication between the 
 plaintiff and defendant. Strange v. Price followed. This Court there held 
 it insufficient to ' inform Mr. James Price ' ' that Mr. John Betterton's- ac- 
 ceptance, £87 5s., is not paid.' A fortiori, the Common Pleas would have 
 agreed with us. I do not believe that the Exchequer would have differed. 
 In Easter term, 1840, doubts springing from the same fruitful source were 
 stirred in the Court of Common Pleas (Messenger v. Southey), and the Ex- 
 chequer (Lewis V. Gompertz) ; the former condemning, the latter support- 
 
 > Solarte v. Palmer, 7 Bing. 530 ; S. C, iBing. (N. C.) 194 ; 8 Bligh (N. 
 S.), 874 ; Tindal v. Brown, 1 Term, 167. [But the disposition of the Court 
 ha£ been not to extend the doctrine acted upon in Solarte v. Palmer. See 
 Chard V. Fox, 14 Q. B. 201.] 
 
CHAP. Vni.] PROCEEDINGS ON NON-PAYMENT. 475 
 
 admitted by the more recent authorities, that, although in 
 strictness it may be required, where the language is other- 
 
 ing, the notice in those respective cases ; but the forms were so entirely 
 different, that the judgments given might have been consistently formed 
 by either Court. But Messenger v. Southey shows a great relaxation of 
 the rigor of the rule laid down in the Exchequer Chamber and House of 
 Lords, on the part of the Lord Chief Justice, who admits that Grugeon v. 
 Smith might have been well decided by force of the words ' returned with 
 charges, and possibly Hedger v. Steavenson also, because the notice de- 
 clared the Bill to have been ' returned unpaid.' But these are the very 
 words which were held insufficient under the operation of the rule in Boul- 
 ton V. Welsh, a case decided by the Common Pleas reluctantly, from def- 
 erence to what was decided in Solarte v. Palmer, and which can hardly 
 be now deemed a satisfactory authority. Upon the whole, it is to be feared, 
 that none of the rules for construing this branch of the instrument designed 
 to be a notice of dishonor will be found capable of very general application. 
 The advantage of clear and certain rules, where it can be secured, is, in- 
 deed, inestimable. Perhaps Lord Mansfield never conferred so great a 
 benefit on the commercial world as by his decision of Tindal v. Brown, 
 where his perseverance compelled them, in spite of themselves, to submit 
 to the doctrine of requiring immediate notice as a matter of law. But in 
 the matter in hand we can scarcely hope to attain such a rule. For if we 
 are to refer the question to a reasonable intendment, and what a man of 
 business would naturally conclude from the words, we can hardly decide it 
 without the intervention of a jury, whose opinions will naturally vary with 
 the circumstances of each case ; and if, on the other hand, the Court must 
 decide on examination of the document according to legal and grammatical 
 rules of interpretation, we shall frequently give it a sense in which neither 
 party could ever have understood it. If we adopt the middle course, re- 
 quiring, at least, a necessary implication, but qualifying these words by 
 Lord Eldon's comment in Wilkinson v. Adam, we have just seen that (if 
 the reports be accurate) the same eminent judge, who gave them one sense 
 in Boulton v. Welsh, may admit them to be susceptible of a sense directly 
 opposite in Hedger v. Steavenson. This rule, however, was recommended 
 by great authority, twice asserted by the Court of Exchequer, not repudi- 
 ated by the Court of Common Pleas. Perhaps it goes no farther than to 
 require that the Court must see that, by some words or other, notice of 
 dishonor has been given. We have entirely excluded the supposition, that 
 the mere fact of making a conjmunication respecting the non-payment of 
 the Bill at the proper season can extend the meaning of the words convey- 
 ing notice of dishonor. This exists in almost every case ; and, as one can 
 hardly conjecture any other motive for giving the information, so the party 
 addressed can hardly fail to infer, that it is given in order to fix him with 
 
476 PEOMISSORY NOTES. [OHAP. VIH. 
 
 wise doubtful or uncertain, yet, that it will ordinarily be 
 presumed, where the notice is in other respects sufficient.^ 
 For sending notice of the dishonor would seem in itself to be 
 sufficient to show that the party means to rely on the in- 
 dorser for reimbursement or indemnity, unless the language 
 of the instrument naturally or necessarily repels that pre- 
 sumption.^ 
 
 § 354. The rule adopted in the American courts is far 
 more liberal than that generally maintained in the English 
 
 liability. Yet no one disputes that the fact must be stated, the notice of 
 dishonor plainly given. But, if this be done, we may now inquire where 
 is the authority establishing the position of Ashhurst and BuUer, J. J. (un- 
 necessary for the case before them), that the notice must also tell the party 
 addressed that he looks to him for payment ? If not, why send the notice ? 
 True, he may have some other reason for informing the party addressed of 
 the dishonor, while looking elsewhere for his money. But, unless he tells 
 him this, the receiver of such a notice cannot but be certain that the sender 
 means to call upon him for payment. The protest, for which notice was 
 substituted, has no such clause, but begins and ends with the history of the 
 dishonored Bill, including the protest itself. Where notice has been given 
 by another party than the holder, there may be good sense in requiring 
 that it shall be accompanied by a direct demand of payment, or a statement, 
 that it will be required of the party addressed ; but in no case has the 
 absence of such information been held to vitiate a notice in other respects 
 complete, and which has come directly from the holder. Nothing now 
 remains but to declare our opinion on the several forms of notice set forth 
 in the special verdict. And, the second, of July 11th ; the third, July 
 20th; the fourth, July 13th; the fifth, September 11th; the sixth, Sep- 
 tember 25th; and the eighth, September 26th; we think bad, because they 
 contain no notice of dishonor according to any of the decisions, or within 
 any of the rules. Consistently with all that is set forth, the plaintiff, either 
 from ignorance or inadvertence, or because he may really have looked to 
 another, may have abstained altogether from presenting any one of these 
 Bills. But this amount reduces the plaintiff's -claim below the defendants' 
 set-off. Our judgment must then be for the latter, even on the supposition 
 that it would be against them on all the important general points that have 
 been raised." 
 
 ' Furze v. Sharwood, 2 A. & El. (N. S.) 388, 416 ; King v. Bickley, 2 A. 
 & El. (N. S.) 419 ; ante, § 351 ; Miers v. Brown, 11 M. & W. 372 ; Metcalfe 
 V. Richardson, 20 Eng. Law & Eq. 301 ; Chard v. Fox, 14 Q. B. 200 ; 
 Townsend v. Lorain Bank, 2 Ohio St. 354. 
 
 ' Ibid. 
 
CHAP. VUI.] PEOCEEDINGS ON NON-PAYMENT. 477 
 
 courts,^ and proceeds upon the ground that it is sufficient to 
 state in the notice that the Note has not been paid, and, 
 
 ' [In Townsend v. Loram.Bank, 2 Ohio St. 355, Ranney, J. said: "We 
 know of no such diversity of decision in the courts of the two countries. 
 In both it is held insufficient to state merely, ' that the Note has not been 
 paid,' as that alone, in the language of Judge Story himself, § 350, ' affords 
 no proof whatsoever that it has been presented in due season, or even that 
 it has been presented at all ' ; and in both it is held unnecessary to state, 
 that the holder looks to the indorser for indemnity. I have already quoted 
 the language of Lord Denman in Furze v. Sharwood ; and as a specimen 
 of the general holding in the courts of this country, it must suffice to refer 
 to the case of the Bank of the United States v. Carneal, 2 Pet. 543, where 
 the objection was taken, that the notice was not sufficient, ' unless the party 
 sending it also informs the indorser that he is looked to for payment.' The 
 Court say, that the notice of demand and dishonor ' necessarily implies 
 such responsibility over'; and that they 'know of no rule that requires 
 any formal declaration to be made to this effect.' Before the great case of 
 Solarte v. Palmer was decided, the judges in Westminster Hall were very 
 far from being a unit upon the question, whether the notice must show 
 upon its face that the Note or Bill had been presented at maturity and 
 dishonored ; or whether it would not be sufficient to state simply that it 
 remained unpaid. The King's Bench, in Hartley v. Case, 4 B. & C. 339, 
 bad already held, that, while no particular form of words was necessary in 
 such a notice, yet the language used must be such as to convey notice to 
 the party what the Bill is, and that payment of it had been refused by the 
 acceptor. Solarte v. Palmer originated in the Common Pleas, and at Nisi 
 Prius. Lord Tenterden instructed the jury that a notice which only com- 
 municated the fact of non-payment was insufficient ; and the verdict was 
 for the defendant. The plaintiff excepted to this opinion, and it was over- 
 ruled by the Court, and judgment given for the plaintiff. This judgment 
 was removed by writ of error to the Court of Exchequer Chamber, and, 
 with the unanimous concurrence of all the judges, reversed. 7 Bing. 350. 
 
 " Tindal, C. J., who delivered the leading opinion, says : ' The notice 
 should at least inform the party to whom it is addressed, either in express 
 terms, or by necessary implication, that the Bill has been dishonored. In 
 this notice we think no such information is conveyed in terms, or is to be 
 necessarily implied from its contents. It is perfectly consistent with this 
 notice that the Bill had never been presented at all.' 
 
 " The case was then appealed by the plaintiff to the House of Lords, 
 where the judgment of the Court of Exchequer Chamber was affirmed, 
 with the concurrence of all the judges summoned to hear the argument, 
 and of Lord Chancellor Brougham, who remarked ' that the case wEis too 
 clear for an appeal.' 1 Bing. (N. C.) 194. 
 
 " This case has since been followed in Boulton v. Welsh, 3 Bing. (N. C.) 
 
478 PROMISSORY NOTES. [CHAP. VHI. 
 
 either expressly or by implication, that the holder looks to 
 the indorser for reimbursement or indemnity.^ If, however, 
 
 688; Phillips v. Gould, 8 C. & P. 355 ; Strange v. Price, 10 A. & El. 125; 
 Messenger o. Southey, 1 Man. & Gran. 76, and Furze v. Sharwood, 2 A. & 
 El. (N. S.) 388 ; and contains the unquestioned doctrine upon the subject, 
 acted upon by the English courts at this day. That they have been quite 
 as liberal in implying notice of dishonor from the language used, when it 
 was not expressly given, as the integrity of the rule would permit, will be 
 very manifest, I think, from an examination of the cases of Lewis v. Gom- 
 pertz, 6 M. & W. 399 ; Houlditch v. Cauty, 4 Bing. (N. C.) 411 ; Hedgef 
 V. Steavenson, 2 M. & W. 799 ; Grugeon v. Smith, 6 A. & El. 499; Cooke 
 V. French, 10 A. & El. 131, note; and Stocken ii. Collins, 9 C. & P. 653. 
 
 " The first American case to which I shall refer, and in which the ques- 
 tion was directly made, is that of Gilbert v. Dennis, in the Supreme Court 
 of Massachusetts. 3 Met. 498. Shaw, C. J. delivered the opinion, and 
 after carefully canvassing the English and American authorities, for the 
 
 » Mills V. Bank of United States, 11 Wheat. 431, 437 ; Bank of United 
 Stfites II. Carneal, 2 Peters, 543 ; Keedy v. Seixas, 2 John. Gas. 337 ; Ran- 
 som V. Mack, 2 Hill, 588, 593 ; Ex'ors of Sinclair v. Lynah, 1 Spears, 
 244; Cayuga Co. Bank v. Warden, 1 Comst. 414. In Mills v. Bank of 
 United States, 11 Wheat. 431, 437, the Court said: " The last objection to 
 the notice is, that it does not state that payment was demanded at the bank 
 when the Note^ became due. It is certainly not necessary that the notice 
 should contain such a formal allegation. It is sufficient that it states the 
 fact of the non-payment of the Note, and that the holder looks to the 
 indorser for indemnity. Whether the demand was duly and regularly 
 made is matter of evidence to be established at the trial. If it be not 
 legally made, no averment, however accurate, will help the case ; and a 
 statement of non-payment and notice is, by necessary implication, an .asser- 
 tion of right by the holder, founded upon his having complied with the 
 requisitions of law against the indorser. In point of fact, in commercial 
 cities, the general if not universal practice is, not to state in the notice the 
 mode or place of demand, but the mere naked fact of non-payment." 
 Again, in Bank of United States v. Carneal, 2 Peters, 543, 553, the Court 
 said : " A suggestion has been made at the bar, that a letter to the indorser, 
 stating the demand and dishonor of the Note, is not sufficient, unless the 
 party sending it also informs the indorser that he is looked to for payment. 
 But when such notice is sent by the holder, or by his order, it necessarily 
 implies such responsibility over. For what other purpose could it be sent ? 
 We know of no rule that requires any formal declaration to be made to 
 this efiect. It is sufficient if it may be reasonably inferred from the nature 
 of the notice." See also Story on Bills, § 301, and note, § 390. 
 
CHAP. Vin.] PEOCEEDINGS ON NON-PAYMENT. ' 479 
 
 there be no statement of the dishonor of the Note, nor any- 
 thing from which it can fairly be implied that a due present- 
 purpose of arriving at the true rule upon the subject, he concludes 
 thus : —r 
 
 " ' We take that rule to be, that, as the indorser is liable only condition- 
 ally for the payment, in case of a dishonor of the Note at its maturity by 
 the maker, and notice thereof to the indorser, in order to charge him, no- 
 tice of such dishonor must be given him by the holder ; that mere notice of 
 non-payment, which does not express or imply notice of dishonor, is not 
 such notice as will render the indorser liable.' 
 
 " The same question afterwards arose, and was decided in the same way, 
 in Pinkham v. Macy, 9 Met. 174. 
 
 " The first case in New York, bearing upon the question, is that of On- 
 tario Bank v. Petrie, 3 Wend. 456, cited and relied upon by counsel for 
 the defendant in error. The notice was dated on the day the Note ma- 
 tured, and stated that the demand was made, and payment refused, last 
 evening. This was held sufficient to submit to the jury to determine 
 whether the indorser was misled by it. It is difficult to distinguish this 
 case from the one now under consideration, and quite as difficult to recon- 
 cile it with acknowledged principles, unless there was something more in it 
 than appears in the report. It was surely inadmissible, when no extraneous 
 facts were to be found, to submit the legal efiect of the written paper to 
 the jury; and quite impossible, it seems to us, when the responsibility was 
 not thus shifted from a tribunal that gives reasons to one that gives none, 
 from the paper alone to say that the indorser was informed of the dishonor 
 of the Note. The case of Smith v. Whiting, 12 Mass. 6, is cited by the 
 Court. But that was a case of misdescription of a Note, payable at a bank, 
 upon which no demand of the maker was required ; and, in fact, the notice 
 itself furnished the means of its own correction ; and the Court very cor- 
 rectly held the error to be immaterial. 
 
 "But whatever may be thought of this case, all difficulty has been re- 
 moved by later decisions in that State, and the doctrine carried quite as far 
 as in England or Massachusetts. In the case of Dole t/. Gold, 5 Barb. 
 490, the notice informed the indorser that the Note ' indorsed by you is 
 due this day, and has not been paid ' ; and it was decided to be insuffi- 
 cient ; the Court holding that the sufficiency of a notice to an indorser, 
 when there is no dispute about the facts, is a question of law to be de- 
 termined by the Court, and which could not be avoided by the Court, 
 ' under any pretence of submitting it to a jury, to say whether the party 
 could understand what was meant, or whether he was misled by it or not'; 
 that in such case the notice ' shows upon its face what information it gave 
 the indorser, and the Court must decide whether it is sufficient or not ' ; 
 and that it is insufficient, unless in express terms, or by necessary implica- 
 
480 PROMISSORY NOTES. [CHAP. VIH. 
 
 ment has been made, the notice would seem to be fatally 
 defective.^ [Therefore, a notice given on the forenoon of 
 
 tion, it informed him that the l^ote had been duly presented and payment 
 refused, and it had thus been dishonored. 
 
 " In the case of Wynn v. Alden, 4 Denio, 163, the demand was made, 
 and notice given, at the proper time, but the notice was without date. It 
 was insisted that it might be inferred from it that the demand was made 
 at the maturity of the Note. But the Court did not feel authorized to do 
 so, and thus express their conclusion : — 
 
 " ' This notice only states that the Note was presented this day, and pay- 
 ment required. But the notice being without date, it is impossible to 
 ascertain from the paper itself what day in particular was intended. It 
 may have been some day before the Note fell due, or a day subsequent to 
 that time ; and from what is written we may as well infer one or the' other, 
 as to infer that the true day of payment is intended. It is not unlikely, 
 looking to what is usually done in such cases, that the person who drew this 
 notice intended to state that the payment of the Note had been demanded 
 at the time of its maturity. But this is mere conjecture, for what was 
 written does not apprise us of any such intention. The notice was insuffi- 
 cient, and the judgment was erroneous.' 
 
 " The question has been settled in Pennsylvania, in a case in every par- 
 ticular in point. Etting v. The Schuylkill Bank, 2 Barr, 356. The notice 
 was in fact made out and sent on the day the Note fell due, but it bore 
 date the evening of the day preceding the last day of grace, and it was 
 held defective. Gibson, C. J., who delivered the opinion of the Court, 
 after remarking that the indorser was informed by it of nothing more than 
 that the Note had been presented and protested for non-payment before it 
 was due, that he had a right to presume that the blunder would be discov- 
 ered and the Note again presented at the day, of the event of which he 
 would be informed, and that, hearing no more about it, he had a right to 
 repose on the belief that the Note was paid, with characteristic energy of 
 expression, adds: 'It is true, it had in fact been presented for payment at 
 the proper time, and the notice was misdated by mistake ; but how was he 
 to know that ? He might as well presume that the notary had mistaken 
 the day of payment as that he had mistaken the day of the notice. But with 
 any mistake as to either he had nothing to do. He was entitled to have 
 explicit notice of the very truth ; and the consequences of wanting it are 
 not to fall on him who was not the cause of them, but on the holder, by 
 whose agent they were occasioned.' 
 
 " It thus appears that in England, and in the great commercial States of 
 Massachusetts, New York, and Pennsylvania, the rule is firmly established, 
 
 ' Ibid. Lockwood v. Crawford, 18 Conn. 361 ; Dole u. Gold, 5 Barb. 
 490. 
 
CHAP. Vm.] PEOCEEDINGS ON NON-PAYMENT. 481 
 
 the day on which a Note falls due, stating that the giver 
 thereof holds the Note, and that it is due and unpaid, and 
 
 that the holder, in order to charge the indorser, must inform him, in the 
 notice he gives, that the Note or Bill has been dishonored ; that it will not 
 be inferred from mere notice of non-payment, nor from a noticp showing 
 a demand and refusal without specifying the time it was made, nor from 
 one showing it made before the maturity of the Bill ; and we apprehend 
 the rule has its foundation in the very elements of the contract into which 
 the indorser enters, and is indispensable to the protection of his rights. He 
 does not undertake absolutely to pay the amount of money named in the 
 instrument. His promise is conditional, and the conditions are as clearly a 
 part of the contract as though written over his own signature. He promises 
 to pay it, provided the holder, if payable at large, at the maturity of the instru- 
 ment, presents it to the maker or acceptor for payment, and it is refused ; or, 
 if payable at a specified place, if the latter neglects to have funds there to 
 take it up ; and, in either case, he is immediately notified of the fact that 
 it is thus dishonored. Information of the dishonor is as explicit a condition 
 of his contract as presentment to the maker or acceptor, and often quite 
 as important to him ; and it can no more become absolute and he made 
 liable by neglecting the one than the other. He has contracted to know, 
 and has a right to know, that the paper has been presented to the party 
 primarily liable for payment, and been refused ; and a right to demand 
 that the information shall be so definitely given as to enable him to fix the 
 liability, and, upon taking it up, to coerce payment from those back of him 
 on it ; which can only be done when he is advised that the demand was 
 made at a time when the maker or acceptor was bound to pay, and when 
 a failure to do so would dishonor the paper. 
 
 " This information need be given in no set form of words. Neither tech- 
 nicality nor formality belongs to the subject. The language used is good, 
 not only for what it positively expresses, but also for what it fairly implies. 
 Nor does the rule, as now settled, in the least infringe upon the doctrine 
 laid down in numerous cases, that immaterial variances or mistakes in the 
 description of the instrument, or other particulars, not calculated to mis- 
 lead the indorser, and wjiich may be corrected by the facts within his own 
 knowledge, will not vitiate the notice. To this class of cases belongs the 
 case of Mills v. The United States Bank, H Wheat. 431; although, from 
 some of the language used in the opinion, it is often cited to show that notice 
 of non-payment would alone be sufficient. The indorser is entitled to no- 
 tice of dishonor, because his contract provides for it ; and because it is 
 material to his interests ; but it is enough when he has it substantially, and 
 with such certainty as would justify a reasonable and prudent man in act- 
 ing upon it ; and he has no right to stand upon the form in which it comes 
 to him, or to shut his eyes to facts within his own knowledge, and rely, for 
 31 
 
482 PROMISSORY NOTES. [CHAP. VHI. 
 
 demanding payment, is not sufficient. For such notice 
 does not expressly, or by reasonable intendment, state that 
 payment has been demanded of the maker and refused.^] 
 
 § 355. Passing from these considerations, let us in the 
 next place inquire, what circumstances will amount, (1.) To 
 an excuse of the omission of due notice, and (2.) What will 
 amount to a waiver of notice. Many of the principles and 
 authorities have already been examined, in considering what 
 is an excuse, and what is a waiver of the omission of due no- 
 tice. And, so far as they have been examined, we shall pass 
 them over in this place with a concise and summary enumera- 
 tion of them. 
 
 § 356. Let us, then, first consider, what will constitute a 
 sufficient excuse for the omission of due and regular notice 
 of the dishonor. In the first place, as falling within this 
 predicament, we may enumerate, (1.) The cases where no- 
 tice is prevented by inevitable accident, or overwhelming 
 calamity.^ (2.) The prevalence of a malignant disease, 
 which interrupts and suspends the ordinary, operations of 
 trade and business.^ (8.) Occurrences of a public and polit- 
 ical character, which interrupt or stop the course of trade 
 and business ; such as war, blockade of the place, invasion 
 or occupation by the enemy.* (4.) The public interdiction 
 or prohibition of commerce between the countries from which 
 or to which the notice is to be sent.^ (5.) The utter im- 
 practicability of giving notice, by reason of the party en- 
 titled ithereto having absconded, or having no fixed place of 
 
 a defence, upon the mistakes or omissions of the holder of the paper, when 
 they could not have resulted to his prejudice."] • 
 
 ' Gilbert v. Dennis, 3 Met. 495, where the authorities are critically 
 examined by Shaw, C. J. See Ransom v. Mack, 2 Hill, 587; Finkham v. 
 Macy, 9 Met. 174; Clark v. Eldridge, 13 Met. 96; Sinclair v. Lynch, 1 
 Spears, 244 ; Dole v. Gold, 5 Barb. 490. 
 
 ' Ante, §§ 258, 259 ; Story on Bills, §§ 308, 309. But see Turner v.. 
 Leach, Chitt. & Hulme on Bills, 330 (9th edit.). 
 
 ' Ante, § 260 ; Story on Bills, §§ 308, 309. 
 
 • Ante, §§ 261, 262 ; House v. Adams, 48 Penn. St. 261. 
 
 ' Ante, § 263. 
 
CHAP. VIII.] PROCEEDINGS ON NON-PAYMENT. 483 
 
 residence, or his place of residence or business being un- 
 known,^ and incapable of being ascertained upon reasonable 
 inquiries.^ 
 
 § 357. In the next place, we may envimerate excuses of a 
 special and peculiar character. Among these are, (1.) That 
 the Note was given for the accommodation of the iudorser 
 only, and that he has the sole interest in the payment, and 
 must ultimately pay the same.^ (2.) An original agreement 
 on the part of the indorser, made with the maker or other 
 party, at all events to pay the Note at its maturity to the 
 holder.* (3.) The receiving of a security or indemnity from 
 the maker, or other party, for whose benefit the Note is made, 
 by the indorser, to secure him for his liability thereon.^ If 
 the security be to the full amount of the Note, the indorser 
 will be held liable, without notice, for the full payment of 
 the Note. If the security be partial, he will be bound pro 
 tanto.^ (4.) A fortiori, The receiving money from the 
 maker, or other party, for whose benefit the Note was made, 
 to take up and pay the Note.^ (5.) Receiving the Note as 
 collateral security for another debt, where the debtor is no 
 party to the Note, or, if a party, he has not indorsed it.^ All 
 these classes of cases have been already sufficiently considered, 
 and the reasons on which they are founded have been ex- 
 plained, and need not be here again repeated. (6.) An 
 original agreement by the indorser to dispense with the 
 
 • See Hunt v. Maybee, 3 Selden, 266. 
 = Ante, § 264. 
 
 ' Ante, §§ 368-370; Story on Bills, §§ 310, 314-316 ; Cory v. Scott, 3 
 B. & Aid. 619 ; French's Ex'or v. The Bank of Columbia, 4 Cranoh, 141. 
 
 * Ante, §§ 208 - 270. 
 
 " Ante, § 281 ; Story on Bills, § 316 ; Bond v. Farnham, 5 Mass. 170 ;, 
 Andrews v. Boyd, 3 Met. 434. 
 
 " Ante, §§ 281, 282; Story on Bills, § 316. See Burrows v. Hannegan,, 
 1 McLean, 310.. 
 
 ' Ante, § 281. 
 
 ' Ante, § 284 ; Story on Bills, § 305, note ; Id. § 372 ; Swinyard v. Bowes, 
 5 M. & S. 62 ; Van Wart v. Woolley, 3 B. & C. 439, 445 ; Thomas y. 
 Breedlove, 6 Mill. 577. 
 
484 PROMISSORY NOTES. [CHAP. VIH. 
 
 necessity of notice, or to be bound without notice.^ As, if 
 the indorser, before the Note becomes due, agrees to pay it 
 in consideration of time being given to him, such a promise 
 is a dispensation with the necessity of presentment for pay- 
 ment, and of notice of the dishonor .^ (7.) An order or 
 direction from the indorser to the maker not to pay the Note, 
 if it be presented at its maturity ; for this plainly will dis- 
 pense with notice of the dishonor, since it is procured by the 
 indorser's own act, although it will not dispense with the 
 presentment of the Note for payment.^ 
 
 § 358. But the subject of waiver, although it has been 
 already brought under review,* deserves in this place a more 
 full and exact consideration, especially as it is one upon 
 
 » Ante, §§ 271, 272; Story on Bills, §§ 317, 371. See Leffingwell v. 
 White, 1 John. Cas. 99; Leonard v. Gary, 10 Wend. 504; Taunton Bank 
 V. Richardson, 5 Pick. 436 ; Chitty on Bills, eh. 10, pp. 484, 485 (8th edit.) ; 
 Murray v. King, 5 B. & Aid. 165 ; Coddington v. Davis, 3 Denio, 16. 
 " Norton v. Lewis, 2 Conn. 478. 
 
 ' Ante, § 293 ; Chitty on Bills, ch. 10, p. 484 (8th edit.). Mr. Chitty 
 (p. 484) says : " But where the drawer of a Bill, a few days before it be- 
 came duej stated to the holder that he had no regular residence, and that 
 he would call and see if the Bill had been paid by the acceptor, it was held, 
 that he was not entitled to notice of its dishonor, he having thus dispensed 
 with it ; and an order by the drawer to the drawee not to pay the Bill, if 
 presented, dispenses with notice of dishonor, though not with the present- 
 ment itself; and if the drawer, on being applied to by the holder, before a 
 Bill is due, to know if it will be paid, answer that it will not, he is not 
 entitled to notice of non-payment ; and where one of several drawers of a 
 Bill was also the acceptor, it was held, in an action against the drawers, 
 .that proof of these circumstances dispensed with the necessity for proving 
 that notice of non-payment was in fact given, because notice to one of 
 ■several joint drawers of a Bill is sufficient, and the acceptor, being himself 
 a drawer, he had notice of his own default. Where persons, who are bank- 
 .ers, as well for the drawer as the acceptor of a Bill, and having renewed it 
 for the drawer, and given credit for it in account between them, have 
 ireceived directions from the acceptor before it became due to stdp the 
 [payment of it at the place of payment, and then did so accordingly, they 
 ..are not bound to give notice to the drawers of such private instructions, 
 \which are to be considered as confidential, and a general notice of non-pay- 
 iiment sufiices." 
 
 * .4n<e,§§ 271-280. 
 
CHAP. Vm.] PROCEEDINGS ON NON-PAYMENT. 485 
 
 which the authorities are not, as we have seen/ agreed ; and, 
 indeed, upon principle, some of these authorities would seem 
 difficult to be maintained, at least in the extent to which 
 they are sometimes pressed in argument. Let us, then, next 
 consider, what is a waiver of the want of due notice. The 
 doctrine, applicable to this, is often confounded with that ap- 
 plicable to excuses for not giving notice ; but it is certainly 
 distinguishable in its nature, and character, and operation. 
 An excuse for the omission or neglect of due notice is in its 
 nature a justification for such omission or neglect, without 
 any consent, express or implied, on the part of the indorser, 
 to be bound by it. On the other hand, a waiver of the want 
 of due notice presupposes, not only that due notice has not 
 been given, but that the holder has no just cause for the 
 omission or neglect. In cases of waiver, strictly so called, 
 the indorser is discharged from all liability by the antecedent 
 laches of the holder, or other party ; and he incurs a new 
 liability by his subsequent assent and waiver of his rights 
 after the laches is incurred, and has been fully made known 
 to him.^ In many cases, indeed, the conduct or language of 
 the indorser, although in the form of a waiver, may yet 
 amount to distinct proof that he has received due notice.^ 
 But in such cases there is no waiver of any rights by the in- 
 dorser ; but merely presumptive proof of his admission of his 
 original liability, founded upon due notice. It is therefore a 
 misnomer to designate such cases as ' cases of waiver. They 
 are properly confessions of present absolute liability and 
 obligation to pay the Note, founded upon legal notice or legal 
 liability. 
 
 § 359. It is on this account that payment of a part of the 
 Note, or a promise to pay the whole Note after full notice of 
 
 1 Ante, § 275, and note, § 280. 
 
 ' Thornton v. Wynn, 12 Wheat. 183. 
 
 = Bell V. Frankis, 5 Scott, N. K. 460 ; S. C, 4 M. & G. 446. See Taun- 
 ton Bank v. Richardson, 5 Pick. 436 ; Donelly v. Howie, Hayes & Jones, 
 Irish, 436. 
 
486 PROMISSORY NOTES. [OHAP. VIII. 
 
 the default of the holderj is often held to' be a sufficient 
 excuse for the omission of notice ; for it evinces, that the 
 party so paying, or promising, could not have sued on the 
 Note on paiyment thereof, and consequently he cannot insist 
 on the want of due notice. In short, he is presumed to be 
 the true party for whose benefit the Note is made. And a 
 promise to pay the Note after its known dishonor,^ where no 
 circumstances appear to show that due notice has not been 
 given, will be prima facie proof of due notice, upon the 
 ground that men do not usually promise to pay money, un- 
 less legally bound so to do ; and therefore the burden of 
 proof of the want of due notice, under such circumstances, 
 lies upon the indorser.^ But, if the want of due notice is 
 shown, then the declaration in the action will not be suffi- 
 
 ' Bayley on Bills, ch. 7, § 2 , pp. 292, 293 (5th edit.) ; Blesard v. Hirst, 
 
 5 Burr. 2670; Thornton v. Wynn, 12 Wheat. 183. 
 
 = Bayley on Bills, ch. 9, p. 406 (5th edit.) ; Cory v. Scott, 3 B. & Aid. 
 619 ; Lundie v. Robertson, 7 East, 231 ; Dixon v. Eliott, 5 C. & P. 437; 
 Hicks V. Duke of Efeaufort, 4 Bing. (N. C.) 229 ; Brownellu. Bonney, 1 A. 
 
 6 El. (N. S.) 39. See Jones v. O'Brien, 26 Eng. Law & Eq. 283. In 
 Lundie v. Kobertson, 7 East, 231, 235, Lord EUenborough said: "The 
 case does not admit of any doubt. The defendant is charged as the indorsee 
 of a Bill of Exchange, and, when applied to for payment, he says he has no 
 cash by him then, but, if the witness will call again, and bring the account 
 with him, he will pay it. Now, when a man, against whom there is a de- 
 mand, promises to pay it for the necessary facilitating of business in transac- 
 tions between man and man, everything must be presumed against him. It 
 was therefore to be presumed, prima facie, from the promise so made, that the 
 Bill had been presented for payment in due time and dishonored, and that 
 due notice had been given of it to the defendant. But, taking the subse- 
 quent conversation as connected with the former, the only limitation of it 
 would be that the defendant stated that he had not had regular notice of 
 the dishonor ; but even that objection was waived in the same breath ; for 
 the defendant said, that, as the debt was justly due, he would pay it. Then 
 it stands on the first conversation, as an absolute promise to pay the Bill ; 
 thereby admitting (for I do not put it on the ground of waiver of any objec- 
 tion to the non-presentation of the Bill in due time as existing in fact), that 
 there did not exist any objection to his payment of the Bill ; but that every- 
 thing had been rightly done. That supersedes the necessity of the ordinary 
 proof And though an objection was stated in the second conversation to 
 the want of regular notice, yet that objection was immediately waived." 
 
CHAP. VIII.] PROCEEDINGS ON NON-PAYMENT. 487 
 
 cient, if it avers a due notice ; but it should be shown, that 
 there was either a sufi&cient excuse, or an effectual waiver .^ 
 
 § 360. In general, it may be stated, that an indorser, who 
 is once discharged by want of notice, or other laches on the 
 part of the holder, is, always discharged; and he cannot again 
 be made liable on the Note, except by his own voluntary act 
 or agreement.^ The subject of waiver, therefore, strictly so 
 called, admits, if it does not require, a twofold considera- 
 tion. (1.) When, and under what circumstances, a waiver 
 duly proved is held obligatory. (2.) What is due and 
 sufficient proof of a waiver. Of these we shall speak in 
 their order. 
 
 § 361. First, then, under what circumstances is a waiver, 
 duly proved, held obligatory. In order to make a waiver, 
 however clearly proved, obligatory upon the party making it, 
 it is indispensable that it should be made with a full knowl- 
 edge of all the facts, that is, with a full knowledge that there 
 has been a want of due notice of the dishonor of the Note.^ 
 
 ' Ibid. In Cory v. Soott, 3 B. & Aid. 519, 624, Mr. Justice Bayley said : 
 " On the other point, I am inclined to think that it is incumbent on the 
 plaintiffs to allege, in their declarations, the want of effects, in order to 
 excuse notice. If notice be averred to have been given, it seems to me it 
 ought to be proved ; and the proof of circumstances which excuse the giv- 
 ing of notice does not seem to me ad idem with such an averment. Possibly, 
 however, it might be considered, that such circumstances would be evidence 
 of notice, inasmuch as they would be evidence that the party knew the Bill 
 would be dishonored; It is not necessary, however, to decide that question, 
 as I am clearly of opinion that a notice in this case was requisite." See 
 Legge V. Thorpe, 12 East, .171; Frazier v. Harvie, 2 Littell, 185; Hill v. 
 Varrell, 3 Greenl. 233 ; Blakely v. Grant, 6 Mass. 386 ; Taunton Bank v. 
 Richardson, 5 Pick. 436 ; Firth v. Thrush, 8 B. & C. 387 ; Story on Bills, 
 § 320, and notes; Leonard v. Gary, 10 Wend. 504; Chapman v. Annett, 1 
 Carr. & Kir. 552, 554, note ; Farmers' & Mechanics' Bank v. Day, 13 
 Verm. 36. 
 
 ' Story on Bills, § 320; Bayley on Bills, ch. 7, § 2, p. 312 (5th edit.) ; 
 Chitty on Bills, ch. 10, p. 541 (8th edit.) ; Jones v. FaleS, i Mass. 245, 
 253; Central Bank v. Davis, 19 Pick. 373, 375; Thornton v. Wynn, 12 
 Wheat. 183 ; Thomson on Bills, ch. 6, § 4, pp. 528-530 (2d edit.). 
 
 ' Chitty on Bills, ch. 8, p. 373 (8th edit.) ; Id. ch. 10, pp. 533, 536 -539 ; 
 
488 PEOMISSOBT NOTES. [CHAP. VIH. 
 
 For, if he makes a promise to pay the Note in ignorance of 
 the facts, nay, more, if he even pays the same under such 
 ignorance, he will not be bound thereby ; but in the former 
 case he will be absolved from his promise, and in the latter 
 case he will be entitled to recover back the money .^ [So, if 
 the indorser make a distinct written admission of a receipt 
 of notice, this will not estop him from showing that such ad- 
 mission was made under a mistake of fact, and that he did 
 not in fact have notice.^] 
 
 § 362. But where the party has full knowledge of all the 
 facts, and he promises to pay the Nate, that, if deliberately 
 done, will, it is said, amount to a complete waiver of the 
 want of due notice, and of the laches of the holder, notwith- 
 standing the promise may have been made under a mistake 
 of law, or a false supposition of legal liability by the party 
 to pay the same. Originally, it certainly must be admitted 
 that there was very strong ground to question this doctrine 
 in the general extent in which it is laid down.^ In the first 
 place, there might be good reason fsr taking a distinction 
 between cases where the money had been paid under a mis- 
 take of law, and cases where there had only been a promise 
 to pay, and, upon a suit brought, the party insisted upon the 
 defence of- a mistake of law. In the former cases, it might 
 be open to the suggestion, that the holder was equitably enti- 
 tled to hold the money, which had been voluntarily paid ; 
 
 Bayley on Bills, ch. 7, § 2, pp. 290, 294 (Sth edit.) ; Blesard v. Hirst, 5 
 Burr. 2670; Goodall v. Dolley, 1 Term, 712; Stevens v. Lynch, 12 East, 
 38 ; Jones v. Savage, 6 Weud. 658 ; Miller v. Hackley, 5 John. 385 ; Bell 
 V. Gardiner, 4 M. & G. 11 ; May v. Coffin, 4 Mass. 341 ; Warder ». 
 Tucker, 7 Mass. 449 ; Canal Bank u. Bank of Albany, 1 Hill, 287 ; Gaiv 
 land V. Salem Bank, 9 Mass. 408 ; Kelley v. Brown, 5 Gray, 108 ; Leon- 
 ard V. Gary, 10 "Wend. 504 ; Mills v. Rouse, 2 Littell, 203 ; Martin v. In- 
 gersoU, 8 Pick. 1 ; Eichter v. Selin, 8 S. & R. 425. 
 
 ' Ibid. ; Griffin v. Goff, 12 John. 423 ; Garland v. Salem Bank, 9 Mass. 
 408 ; Crutchers v. .Wolf, 2 Mon. 88. 
 
 ^ Commercial Bank v. Clark, 28 Verm. 325 ; Jones v. O'Brien, 26 Eng. 
 Law & Eq. 283 ; Heame v. Rugus, 9 B. & C. 577. 
 
 ' Ibid. ; Thomson on Bills, ch. 6, § 4, pp. 529, 530 (2d edit.). 
 
CHAP. Vm.] PEbCEEDINGS ON NON-PAYMENT. 489 
 
 and, in the latter cases, that a just foundation for the suit 
 failed, because of the mistake of law, and of the promise be- 
 ing without any valuable consideration to support it, and, 
 therefore, like any other promise, founded upon a mere moral 
 obligation. In the next place, independent of this special 
 ground, it would seem, upon general principles of law, that 
 a mere promise to pay (even if a payment made would be 
 valid), having no valuable consideration to support it, ought 
 to be held a nullity, upon the now well-settled ground, that a 
 promise founded upon a mere moral obligation, without any 
 legal obligation to sustain it, is not obligatory or binding, so 
 as to be capable of enforcement at law.^ Now, in cases of 
 laches in the holder, the indorser, if he is once discharged, 
 would seem to be within the reach of this doctrine, so that 
 he ought not to be held liable on a promise to pay, unless 
 some new consideration should arise to support such prom- 
 ise;^ It is sufficient, however, to say, that the doctrine of the 
 
 ' See Rann v. Hughes, 7 Term, 350, note ; Crosbie v. McDoual, 13 Ves. 
 148 ; Price v. Easton, 4 B. & Ad. 433 ; Britten i>. Webb, 2 B. & C. 483 ; 
 Bates V. Cort, 2 B. & C. 474; Brealey v. Andrews, 7 A. & El. 108 ; Her- 
 ring V. Dorell, 8 Dowl. Prac. Cas. 604 ; Story on Contracts, §§ 132, 133, 
 142 ; Holliday'u. Atkinson, 5 B. & C. 501 ; Mills v. Wyman, 3 Pick. 207 ; 
 Cook V. Bradley, 7 Conn. 57 ; Story on Bills, § 181, 182. 
 
 ' In Story on Bills, § 320, note, it is said: "It is probably too late to 
 attempt to modify or recall the doctrine in respect to a waiver of notice, by 
 a new promise to pay the Bill. When such a promise is made, aft«r the 
 party is discharged in point of law, it would seem, upon principle, difficult 
 to perceive how it can or ought to be binding, if there is not a new and 
 sufficient consideration to support it ; for a moral obligation is not sufficient. 
 (See Barradaile v. Lowe, 4 Taunt. 93.) And there might, originally, have 
 been a good ground to say, that the money, if paid by mistake of law, ought 
 not to be recovered back, if, in point of moral propriety, it could be re- 
 tained ; and to have held, at the same time, that a mere promise to pay, 
 under a mistake of law, was not of binding obligation, so as to be enforced 
 in a suit. And, upon the other point, as a matter of evidence, a promise to 
 pay may, in the absence of all controlling circumstances, be prima facie, 
 sufficient evidence of a regular protest and notice. But when the fact is 
 made out that there was no protest or notice, it seems difficult to perceive 
 upon what ground it can be maintained that the promise to pay, with 
 knowledge of the fact, can be evidence of a protest and notice which never 
 
490 PROMISSORY NOTES. ' [CHAP. Vffl. 
 
 liability of the indorser, under such circumstances, whether 
 originally well or ill founded, seems now so well established 
 in England, that it cannot be easily overturned;^ and in 
 America, although the decisions are at variance with each 
 other, yet there seems a considerable preponderance of au- 
 thority in favor of the same doctrine.^ 
 
 existed. Mr. Bayley (on Bills, ch. 9, p. 406, 5th edit. 1830) has justly re- 
 marked, that, under an allegation of notice, it may be questionable whether 
 evidence can be given to excuse the want of notice, or whether, to let in 
 such evidence, the facts, to excuse notice, should not be pleaded specially ; 
 and he has cited Cory v. Scott, 3 B. & Aid. 619. In this respect there 
 may be just ground for a distinction between a case of protest, and notice 
 given, but too late, and a ease where no protest or notice has been given at 
 all. Firth v. Thrush, 8 B. & C. 387 ; Baker v. Gallagher, 1 Wash. 461 ; 
 Potter V. Kayworth, 13 East, 417; Kichter v. Selin, 8 S. & K. 438; Pier- 
 sou V. Hooker^ 3 John. 68 ; Martin v. Ingersoll, 8 Pick. 1 ; Thornton o. 
 Wynn, 12 Wheat. 183. 
 
 • Ibid. ; Bayley on Bills, ch. 7, pp. 291 - 293 (5th edit.) ; Chitty on Bills, 
 ch. 10, pp. 533-536 (8th edit.) ; Vaughanu. Fuller, 2 Str.[1246 ; Eogers v. 
 Stephens, 2 Term, 713; Wilkes v. Jacks, Peake, 202; Blesard v. Hirst, 5 
 Burr. 2670; Horford v. Wilson, 1 Taunt. 12; 1 Selwyn, .N. P. 52 (10th 
 edit.) ; Lundie v. Eobertson, 7 East, 231 ; Haddock v. Bury, 7 East, 236, 
 note; Gibbon v. Goggon, 2 Camp. 188 ; Wood v. Brown, 1 Starkie, 217; 
 Taylor v. Jones, 2 Camp. 106 ; Story on Bills, §§ 320, 373. 
 
 ' Hopkins v. Liswell, 12 Mass. 52 ; Trimble v. Thorn, 16 John. 152; Mil- 
 ler u.Hackley, 5 John. 375; Martin v. Winslow, 2 Mason, 241; Ladd v. 
 Kenney, 2N. H. 340; Creamer v. Perry, 17 Pick. 332; Boyd v. Cleveland, 
 4 Pick. 525 ; Thornton v. Wynn, 12 Wheat. 183, 187 ; Reynolds v. Doug- 
 lass, 12 Peters, 497 ; Hart v. Long, 1 Bob. 83 ; Glenn v. Thistle, 1 Bob. 
 572, affirm the English doctrine. But Lawrence v. Ralston, 3 Bibb, 102; 
 Peabody v. Harvey, 4 Conn. 119 ; May v. Coffin, 4 Mass. 341 ; Warder v. 
 Tucker, 7 Mass. 449; Freeman v. Boynton, 7 Mass. 483, are in the nega- 
 tive. Chitty on Bills, ch. 10, pp. 534-536 (8th edit. 1833); Bilbie v. 
 Lumley, 2 East, 469 ; Story on Eq. Jur. §§111,116,137; Stewart v. Stew- 
 art, 6 C. & Fin. 964-971 ; Eichter v. Selin, 8 S. & R 438. ■ On this sub- 
 ject Mr. Chitty says : " It seems to have been once considered, that a mis- 
 apprehension of the legal liability would prevent a subsequent promise to 
 pay from being obligatory, and that even money, paid in pursuance of such 
 promise, might be recovered back. But from subsequent cases, it appears 
 that such doctrine is not law, and that money, paid by one knowing (or 
 having the means of such knowledge in his power) all the circumstances, 
 cannot, unless there has been deceit or fraud on the part of the holder, be 
 
CHAP. VIII.] PROCEEDINGS ON NON-PAYMENT. 491 
 
 § 363. But, although a promise to pay the Note, with a 
 full knowledge of all the facts and the laches of the holder, 
 
 recovered back again on account of such payment having been made under 
 an ignorance of the law, although the party paying expressly declared that 
 he paid without prejudice. And, as an objection made by a drawer or in- 
 dorser to pay the Bill, on the ground of the want of notice, is stricti juris, 
 and frequently does not meet the justice of the case, it is to be inferred 
 from the same cases, and it is, indeed, now clearly established, that even a 
 mere promise to pay, made after notice of the facts, and laches of the holder, 
 would be binding, though the party making it misapprehended the law. 
 Therefore, where the drawer of g, Bill of Exchange, knowing that time had 
 been given by the holder to the acceptor, but apprehending that he was 
 still liable upon the Bill in default of the acceptor, three months after it was 
 due, said : ' I know I am liable, and, if the acceptor does not pay it, I will,' 
 it was adjudged that he was bound by such promise ; and the Court said, 
 that the cases above referred to proceeded on the mistake of the person 
 paying the money under an ignorance or misconception of the facts of the 
 case, but that, in the principal case, the defendant had made the promise with 
 a full knowledge of the circumstances, three months after the Bill had been 
 dishonored, and could not now defend himself upon the ground of his igno- 
 rance of law when he made the promise." Chitty on Bills, ch. 10, pp. 
 536, 537 (8th edit. 1833) ; Story on Bills, § 320, and note (1). The diffi- 
 culty of maintaining the doctrine, that a promise to pay after full knowl- 
 edge of aU the facts, but without any new consideration to support, has been 
 very powerfully exhibited in the opinion of the Irish Court of Exchequer 
 in 1833, in Donelly v. Howie, Hayes & Jones, 436, where the very ques- 
 tion arose, and it was decided that the new promise, not being founded 
 upon any new consideration, although made with a full knowledge of the 
 facts, was a nudum pactum, and not binding. Joy, C. B., on that occasion 
 said : " Either the judges have been inaccurate in the language they have 
 used, or they have been inaccurately reported, or there has been a fluctua- 
 tion of opinion upon this subject. But in one of the latest cases on the 
 subject, Standage v. Creighton, Denman, C. J. held, that a promise to 
 make a part payment was not sufficient evidence that all was rightly done ; 
 and he nonsuited the plaintiff, though such promise would, according to what 
 is now contended for, be a waiver, and entitle the plaintiff to recover. I 
 confess I cannot conceive what is the meaning to be attributed to the word 
 ' waiver,' when used in a case like the present, where the defendant has 
 been absolutely discharged by the neglect of the plaintiff. He may waive 
 the communication of the fact, but I do not understand how he can waive 
 the existence of the fact. The law requires that the Bill should be pre- 
 ■ sented to the acceptor when it becomes due, even though the acceptor be a 
 bankrupt ; and, in my opinion, it would be very prejudicial to the mercantile 
 interests of the country, were we to fritter away the known rules of law by 
 
492 PROMISSORY NOTES. [CHAP. VIH. 
 
 may thus be held, in point of law,^ to amount to a waiver of 
 the right to notice, and be obligatory upon the indorser, al- 
 though no new consideration intervenes ; yet this must be 
 understood with some qualifications and limitations. The 
 promise, to be obligatory, must be deliberately made, in clear 
 and explicit language, and amount to an admission of the 
 right of the holder, or of a duty and willingness of the in- 
 dorser to pay ; or, if it is implied from the conduct or acts of 
 the indorser, it must as clearly import a like admission or 
 duty ; such, for example, as a part payment of the Note.^ 
 If, therefore, the conduct or acts of the indorser be equivo- 
 cal, or if the language used be of a qualified or uncertain 
 nature, the indorser will not be held responsible ; at least 
 not, unless it was such as must necessarily mislead, and 
 
 establishing this new-fangled doctrine of waiver. The tendency of modem 
 decisions of Courts of Justice is, to avoid introducing new distinctions, or 
 extending those which have been already introduced ; and to decide cases 
 according to the old well-known rules of the law. Nor is there any pre- 
 tence for saying, that there is a moral obligation on the defendant to pay 
 this Bill, — whereby the promise might be supported ; for the plaintiff by 
 his own neglect has discharged every person except the acceptor of the 
 Bill." Smith, B., "I agree in opinion with other members of the Court. 
 The promise of the indorser is of this benefit to the indorser ; that, by prov- 
 ing it, he gives prima facie evidence that those acts have been done, which 
 it is necessary he should show were done, in order to charge the defend- 
 ant." Pennefeather, B. : " We are all of opinion, that our judgment upon 
 this point should be for the defendant. In no case has the Court held — 
 when the declaration contained an averment that the Bill was duly pre- 
 sented for payment, which allegation was disproved — that the plaintiff 
 was entitled to recover upon proof of a subsequent promise to pay by the 
 defendant. The cases only go this length, that, if a subsequent promise by 
 the defendant to pay the Bill be proved, it is evidence that the presentment 
 of the Bill was rightly made. As, therefore, we are not bound by any de- 
 cided cases, and as principle does not require us to go the length sought by 
 the plaintiff in this case, I am of opinion that we ought not to extend the 
 departures which have hitherto been made from the strict rules of law." 
 Verdict set aside, and nonsuit entered. 
 
 ' See Wilson v. Huston, 13 Mo. 146. 
 
 • Story on Bills, § 320 ; Bayley on Bills, ch. 7, § 2, pp. 291, 292 (Sth 
 edit.) ; Chitty on Bills, ch. 10, pp. 539, 540 (Sth edit.) ; Fletcher v. Frog- 
 gatt, 2 C. & P. 569. 
 
CHAP. Vni.] PROCEEDINGS ON NON-PAYMENT. 493 
 
 was intended to mislead, the holder into a false belief and 
 security that the Note would be duly paid by the indorser.^ 
 And if the offer be conditional or qualified, it must be ac- 
 cepted as made, otherwise it will not be obligatory upon the 
 indorser.^ 
 
 ' Chitty on Bills, ch. 10, pp. 536, 539, 540 (Sth edit.) ; Story on Bills, 
 § 320, and note ; Id. § 373 ; ante, §§ 272, 287. Mr. Chitty (pp. 539, 540) 
 says : " The conduct, however, of the party insisting on the want of notice 
 must, in general, be unequivocal, and his promise must amount to an ad- 
 mission of the holder's right to receive payment ; and, therefore, where a 
 foreigner only said : ' I am not acquainted with your laws ; if I am bound 
 to pay it I will,' such promise was not considered a waiver of the objection 
 of the want of notice ; and it has been considered that, if the promise were 
 made on the arrest, it shall not prejudice ; but this doctrine seems ques- 
 tionable. If an indorser propose to the holder to pay the Bill by instal- 
 ments, and such offer be rejected, he is at liberty afterwards to avail him- 
 self of the want of notice. So it was decided, that if the drawer or 
 indorser, after having been arrested, upon being asked ' what he had to 
 propose by way of settlement, said : ' I am willing to give my Bill at one 
 or two months,' but which was rejected, this does not obviate the necessity 
 of proving notice ; and Lord EUenborough observed : ' This offer is neither 
 an acknowledgment nor a waiver to obviate the necessity of expressly 
 proving notice of the dishonor of the Bill. He might have offered to ^ve 
 his acceptance at one or two months, although, being entitled to notice of 
 the dishonor of the former Bill, he had received none, and although, upon 
 this compromise being refused, he meant to rely upon this objection. If 
 the plaintiff accepted the offer, good and well ; if not, things were to re- 
 main on the same footing as before it was made.' But an offer to the holder 
 of a Bill of a general composition of so much in the pound on all a party's 
 debts, although not accepted, has been considered as dispensing with proof 
 of notice of dishonor.'' This last case seems of very questionable authority, 
 as the offer was conditional, and not accepted. See ex parte Bynold, 1 
 Deac. 728 ; Standage v. Creighton, 5 C. & P. 406. 
 
 ^ Mr. Chitty (on Bills, ch. 10, p. 466, 8th edit.) says : " Even an express 
 verbal agreement between all the parties to a Bill or Note, that it should 
 not be put in suit till certain estates had been sold, although it misled and 
 induced the holder not to give regular notice of non-payment when the 
 Bill or Note fell due, constitutes no excuse for such neglect, because, in 
 point of law, no such parol agreement w£is available to the party as a 
 defence to an immediate action ; so, as it was inoperative for one purpose, 
 it ought not to have any effect and, therefore, notwithstanding it, notice 
 should have been given. And although there are some exceptions excusing 
 the omission to give notice, yet they are so qualified, that it is very impru- 
 
494 PROMISSOKY NOTES. [CHAP. VIII. 
 
 § 364. And this leads us, secondly, to the consideration, 
 what will amount to, and be a sufficient proof of, a waiver. 
 And here it may be stated (as has just been intimated), that 
 a part-payment of the Note, not explained or qualified by any 
 accompanying circumstances, will be held to be sufficient 
 evidence of a waiver of due notice.^ In like manner, it is 
 
 dent in any case to rely on them, and every cautious holder should, imme- 
 diately after he has received notice of the dishonor of a Bill or Note, give 
 a separate and distinct notice thereof, not only to his immediate indorser, 
 but to every other party to the instrument, whether by indorsement or 
 transfer, by mere delivery, or by guaranty, or otherwise responsible for the 
 payment, for although the want of effects may in some cases excuse the 
 neglect, or a notice from any party to a Bill may inure to the use of the 
 holder, yet these are mere accidents in his favor, on which no prudent per- 
 son should rely." Lecaan v. Kirkman, 6 C. B. (N. S.) 929. 
 
 • Chitty on Bills, ch. 10, pp. 533, 534 (8th edit.). Mr. Chitty (p. 535) 
 adds : " And in some of the cases upon this subject, the effect of such par- 
 tial payment, or promise to pay, has been carried still further, and been 
 considered, not merely as a waiver of the right to object to the laches, but 
 even as an admission that the Bill or Note had in fact been regularly pre- 
 sented or protested, and that due notice of dishonor had been given ; and 
 this even in cases where the party who paid or promised afterwards stated 
 that, in fact, he had not had due notice, &c. ; because it is to be inferred, 
 that the jiart-payment or promise to pay would not have been made unless 
 all circumstances had concurred to subject the party to liability, and induce 
 him to make such payment or promise. Thus, where an indorsee, three 
 months after a Bill became due, demanded payment of the indorser, who 
 first promised to pay it if he would call again with the account, and after- 
 wards said that he had not had regular notice, but, as the debt was justly 
 due, he would pay it ; it was held, that the first conversation, being an ab- 
 solute promise to pay the Bill, was'^nma facie an admission that the Bill 
 had been presented to the acceptor for payment in due time, and had been 
 dishonored, and that due notice had been given of it to the indorser, and 
 superseded the necessity of other proof to satisfy those averments in the 
 declaration ; and that the second conversation only limited the inference 
 from the former, so far as the want of regular notice of the dishonor to the 
 defendant went, which objection he then waived. So, where the drawer 
 of a foreign Bill, upon being applied to for payment, said : ' My affairs are 
 at this moment deranged, but I shall be glad to pay it as soon as my ac- 
 counts with my agent are cleared,' it was decided that it was unnecessary 
 to prove the averment of the protest of the Bill. And in an action by the 
 indorsee against the drawer of a Bill, the plaintiff did not prove any notice 
 
CHAP. VIII.] PROCEEDINGS ON NON-PAYMENT. 495 
 
 not necessary that an express promise should be made abso- 
 lutely to pay the Note, in totidem verbis. It will be sufficient 
 if, by reasonable intendment and interpretation, the language 
 imports, or naturally implies, a promise to pay it. There- 
 fore, a declaration of the indorser, after full knowledge of the 
 facts, that he will " see it (the Note) paid," [or to arrange 
 so that it should be paid,^] or an acknowledgment that " it 
 must be paid," or a promise that " he will set the matter to 
 rights," have been held sufficient proof of a waiver of notice.^ 
 So, where the indorser said that he should pay the Bill (or 
 the Note), and should not avail himself of the informality of 
 the notice, it was held to be sufficient evidence, from which 
 the jury might infer a regular notice.^ A fortiori, if the in- 
 dorser should say, " He will certainly pay the Note the day 
 after," * or, " He had not the cash by him, but if the clerk 
 would call in a day or two, and bring the account (of the ex- 
 penses), he would pay it " ; ^ pr, " I suppose there will be no 
 alternative but my taking up the Bill (or Note), and if you 
 
 of dishonor to the defendant, but gave in evidence an agreement made 
 between a prior indorser and the drawer, after the Bill became due, which 
 recited that the defendant had drawn, amongst others, the Bill in question, 
 that it was overdue, and oiight to be in the hands of the prior indorser, 
 and that it was agreed the latter should take the money due to him upon 
 the Bill by instalments ; it was held, that this was evidence that the drawer 
 was at that time liable to pay the Bill, and dispensed with other proof of 
 notice of dishonor. Again, where, in an action against the drawer, in lieu 
 of proof of actual notice, the defendant's letter was proved, stating, ' that 
 he was an accommodation drawer, and that the Bill would be paid before 
 next term,' though not saying .' by defendant,' Lord EUenborough said : 
 ' The defendant does not rely upon the want of notice, but undertakes that 
 the Bill will be duly paid before the term, either by himself or the acceptor. 
 I think the evidence sufficient.' " Margetson v. Aitken, 3 C. & P. 338 ; 
 Horford v. Wilson, 1 Taunt. 12. 
 
 ' Byram v. Hunter, 36 Maine, 220. 
 
 ^ Chitty on Bills, ch. 10, pp. 533, 534 (8th edit.) ; Hopes v. Alder, 6 
 East, 16 ; Rogers v. Stevens, 2 Term. 713 ; Anson v. Bailey, Bull. N. P. 
 275 ; Reynolds v. Douglass, 12 Peters, 497, 505. 
 
 » Brownell v. Bonney, 1 A. & El. (N. S.) 39. 
 
 * Whitaker v. Morris, cited in Chitty on Bills, ch. 10, p. 533, note from 
 MSS. (8th edit.). See Gibbon v. Coggon, 2 Camp. 188. 
 
 ° Lundie v. Robertson, 7 East, 231. 
 
49B PROMISSORY NOTES. [OHAP. VIH. 
 
 •will bring it to me on Tuesday, I will pay the money " ; ^ or, 
 " If the acceptor (or the maker) does not pay, I must ; but 
 exhaust all your influence with the acceptor (or the maker) 
 first " ; ^ in each of these cases the declaration would amount 
 to just proof of a waiver. So, if the indorser should, before 
 the maturity of the Note, state to the ''holder, on his saying 
 that he had no confidence in the other party, that he would 
 pay the Note, if, at maturity, it were not paid by any other 
 party ; * or telling the holder, before the maturity of the Note, 
 " to give himself no uneasiness about it, he would see him 
 paid " ; these would, in like manner, be satisfactory proof of 
 a waiver of all notice. So, where the indorser of a Note ap- 
 plied to a bank to have it discounted, and promised to attend 
 to the renewal of it, and to take care of it, and directed that 
 a notice to the maker should be sent to his care, and such 
 notice was sent accordingly, it was held to be a waiver, on 
 his part, of a regular demand and notice, or, at least, that 
 from these facts a jury might legally infer a waiver.* [So, a 
 writing from an indorser to a holder of a Note, saying, " You 
 need not protest T. B. C.'s Note, and I will waive the neces- 
 sity of protest thereof," has been held a sufi&cient waiver of 
 notice.^] 
 
 § 365. On the other hand, vague, or indeterminate, or hy- 
 pothetical language will not be deemed sufficient to establish 
 a waiver of notice. Thus, if the indorser should say, " If I 
 am bound to pay it (the Note), I will," it will not be suffi- 
 cient to found an inference of a waiver of notice.® Neither 
 
 > Pickin V. Graham, 1 C. & M. 725 ; S. C, 3 Tyrw. 923. 
 " Hicks V. Duke of Beaufort, 4 Bing. (N. C.) 229 ; S. C, 5 Scott, 598. 
 ° Boyd V. Cleveland, 4 Pick. 527. See also Russell u. Buck, H Verm. 
 166. 
 
 * Taunton Bank v. Bicbardson, 5 Pick. 437. As to whether one partner 
 can, after dissolution of the partnership, waive demand and notice of the 
 dishonor of a Note, see Darling v. March, 22 Maine, 184, where the affirm- 
 ative is held. 
 
 ^ Coddington v. Diavis, 3 Denio, 17 ; S. C, 1 Comst. 186. 
 
 • Dennis v. Morrice, 3 Esp. 168 ; Chitty on Bills, ch. 10, pp. 539, 540 
 (8th edit.) ; ante, §§ 275, 287, 364, note ; Story on Bills, § 320, and note, 
 §373. 
 
CHAP. VIII.] PROCEEDINGS ON NON-PAYMENT. 497 
 
 will it be any waiver of notice, if the indorser, on the day of 
 the maturity of the Note, should say to the holder, that he 
 hoped it would be paid ; that he would see what he could do, 
 and endeavor to provide effects.^ So, if the indorser, after 
 hearing of the dishonor of the draft (or the Note), of which 
 he had not received due notice, should say, that if the draft 
 was presented to him, duly protested, he would pay it ; it is 
 not a promise which would amount to a waiver, but is a 
 mere expression of opinion.^ Neither will the taking of 
 security by the indorser, after the Note has been dishonored, 
 believing himself bound to pay the same, although he had 
 not received due notice, be sufficient to establish a waiver of 
 his. right to notice ;^ nor his using exertions to obtain pay- 
 ment from a prior party on the Note ; * nor his offering to 
 indorse a new Note for the same amount, which offer is not 
 accepted.^ 
 
 § 366. So, equivocal circumstances or agreements will not 
 be construed to extend beyond the plain and clear import of 
 the acts done, or terms used. An agreement to waive notice 
 of the dishonor of a Note will not be deemed to be a waiver 
 of due presentment of it to the maker for payment ; but the 
 holder must, at his peril, make due presentment. Thus, 
 where the indorser, upon indorsing a Note, wrote over it, 
 " Good to A (the holder), or order, without notice," this 
 was held not to be a good waiver of a due presentment of tlie 
 Bill for payment to the maker, but simply to be a waiver of 
 due notice of the dishonor, if not paid upon such present- 
 ment.^ 
 
 § 367. Let us, in the next place, consider What will not 
 constitute a sufficient excuse for the want of due notice of 
 
 ' Prideaux v. CoUiey, 2 Stark. 57 ; ante, § 289. 
 ' Perin V. Poumeirat, 14 Martin, 541. 
 ' Tower v. Durrell, 9 Mass. 332. 
 ' Hussey v. Freeman, 10 Mass. 84. 
 ' Laporte v. Landry, 17 Martin, 359. 
 
 ' Lane v. Steward, 2 Appleton, Maine, 98; ante, § 272; Burnham v. 
 Webster, 17 Maine, 50. 
 
 32 
 
498 PKOMISSOEY NOTES. [CHAP. VHI. 
 
 the dishonor of the Note. And here, again, as the same 
 doctrines apply as in cases of the want of due presentment 
 for payment, we shall very briefly glance at this subject in 
 this connection. It is, then, no excuse for not giving due 
 notice of the dishonor, (1.) That the party to whom the 
 notice is to be given is bankrupt, or insolvent.^ (2.) Or, 
 that the indorser knows that the Note, when presented at its 
 maturity, will not be paid by the maker.^ (3.) That the 
 indorser, under apprehension that the Note will be dishon- 
 ored, has lodged security in the hands of a subsequent indors- 
 er to secure him conditionally, if he is obliged to pay the 
 Note, but not otherwise.^ (4.) That the maker, in contem- 
 plation of his inability to pay the whole Note at maturaty, 
 has lodged money with the indorser for part-payment thereof, 
 when due.* (5.) That the indorser knows, at the time of 
 his indorsement, that the maker is insolvent, and will not be 
 able to pay it at its maturity.^ (6.) That the holder has 
 mislaid or lost the Note, and is unable to give it up, even if 
 the indorser be ready, upon due notice, to payit.^ (7.) That 
 the maker and indorser are both accommodation parties for 
 the benefit of a subsequent indorser.'' (8.) That there was 
 an agreement between the original parties, known to the in- 
 dorser at the time of the indorsement, that payment thereof 
 should not be demanded until certain estates were .sold ; for 
 it would vary the legal effect of the Note.^ (9.) That the 
 
 ' Ante, §§ 203, 204, 241 ; Story on Bills, §§ 234, 279, 307, 318, 319, 326, 
 375. 
 
 ' Ante, § 286; Bayley on Bills, ch. 7, § 2, pp. 303-305 (5th edit.); 
 Chitty on Bills,* ch. 10, pp. 483, 484 (8th edit.); Story on Bills, § 375; 
 Gaunt V. Thompson, 7 M., G. & S. 400. 
 
 ' Ante, § 287. 
 
 * Ante, § 288. 
 
 * Ante, §§ 286 - 288. 
 » Ante, § 290. 
 
 ' Ante, § 292. 
 
 ' Ante, §§ .148, 364, and note; Story on Bills, § 317, and note, § 371 ; 
 Free v. Hawkins, 8 Taunt. 92. On this occasion, Mr. Justice Dallas 
 said : " It is then said, that, at the time when these Notes were made and 
 
CHAP. VIII.] PKOCEEDINGS ON NON-PAYMENT. 499 
 
 Note is giren by one firm, and indorsed by another firm, in 
 each of which the same person is one of the partners.^ 
 
 § 368. In concluding this part of our subject, it is proper 
 to remark, that all these various decisions proceed upon the 
 
 indorsed, it was mutually understood that payment should not be enforced 
 until Sir Robert Salisbury's effects were brought to sale, and that the plain- 
 tiffs entered into this contract with the defendant, with a full knowledge of 
 all these circumstances. One thing is to be observed ; if such were meant 
 to be the understanding, it ought to have been expressed on the instru- 
 ment ; but it is not expressed ; and, taking the instrument as it stands, it is 
 a common Promissol-y Note, and requires that notice of dishonor should be 
 given to the defendant in order to give the plaintiffs a right to recover 
 against him. But, it is said, notice was dispensed with by the understaiK'- 
 ing which existed between the parties ; to which the answer is, that, if ^ 
 ties mean to vary the legal operation of an instrument, they ought to 
 express such variance ; if they do not express it, the legal operation of the 
 instrument remains. The effect of the evidence tendered would be to vary, 
 the Note in question, and to control its legal operation ; and such evidence, 
 I think, is inadmissible. The case of Hoare v. Graham, is similar to the 
 present case, and ought to govern it. It was there held, that a party should 
 not be permitted to give evidence of a collateral or concomitant circum- 
 stance ; namely, that though the Note was expressed to be payable on a 
 certain day, payment was not to be called for on that day. If the clear prin- 
 ciple, that what is expressed in writing, and that which is the best evidence 
 of a contract, should alone constitute the contract, require any authority, the 
 case of Hoare v. Graham confirms that principle." Mr. Justice Parke said : " I 
 was of counsel in the case of Hoare v. Graham, and was assisted by a very 
 learned man-. We took the same objections which the counselfor the plaintiffs 
 in this case have taken ; but we felt that we could not answer the question put 
 by my Lord EUenborough : ' What is to become of Bills of Exchange and 
 Promissory Notes, if they may be cut down by a secret agreement that they 
 shall not be put in suit ? ' It has been observed, in favor of the plaintiffs, 
 that they sought not, by the evidence tendered at the trial, to contradict 
 the Note, or limit the written contract ; but, if I issue a Promissory Note 
 payable at two months, and enter into a parol agreement that the Note 
 shall not be put in suit till the end of five years, or till the uncertain period 
 of the sale of an estate, can it be contended that such a parol agreement 
 does not contradict and limit the written contract into which I have en- 
 tered ? I am of opinion that the defendant in this case was entitled to 
 notice of the non-payment of the Note ; and that the evidence tendered 
 by the plaintiffs, as a waiver of such notice, was properly rejected." Mr. 
 Justice Burrough adopted the same doctrine. 
 ' Ante, § 294. 
 
500 PROMISSORY NOTES. [CHAP. VIII. 
 
 same general principle. The commercial law having required 
 due presentment and due notice of tlie dishonor of the Note, 
 as conditions attached to the obligations of the indorser, 
 these acts are ordinarily deemed indispensable to be per- 
 formed before the indorser is charged with absolute respon- 
 sibility. Still, however, the doctrine is subject to equitable 
 exceptions and reasonable qualifications, whenever circum- 
 stances absolutely prevent a due compliance therewith, or the 
 holder has a reasonable excuse for his non-compliance, or the 
 indorser by his acts or language has dispensed with a strict 
 compliance, or he has, upon full knowledge of all the circum- 
 stances, waived his strict rights as to due presentment or due 
 notice. What constitutes sufficient equitable grounds for 
 such exceptions, it is not, perhaps, a priori, in all cases, easy 
 to decide. , But it may be justly said, that the general rule, 
 as well as the exceptions to it, which have been thus far 
 established, are entirely consonant with sound policy and 
 reciprocal justice. 
 
 § 369. We have already seen, that the same fatal conse- 
 quences do not absolutely follow, in the French law, from the 
 laches or neglect of the holder in not making due pre- 
 sentment, or in not giving due notice of the dishonor of 
 Notes, as flow from ours. In our law, the indorser is ab- 
 solved from all responsibility ; but in the French law a dif- 
 ferent rule prevails, ^nd the indorser is exonerated only when 
 he suffers damage or loss from the laches or neglect of the 
 holder, and then only to the extent and measure of such 
 damage or loss.^ The same rule seems to pervade the gen- 
 eral law of continental Europe.^ 
 
 ' Pothier, De Change, n. 156, 157 ; Pardessus, Droit Comm. Tom. 2, art. 
 435; Story on Bills, §478, and note; Kemble v. Mills, 1 M. & G. 762, 
 note; ante, §§ 285, 318. 
 
 ' Caseregis, Discur. de Comm. 54, n. 38, 40, 42, 49 ; Baldasseroni, De 
 Camb. Pt. 2, art. 10, § 35 ; Story on Bills, § 478 ; Kemble v. Mills, 1 M. & 
 iG. 762, note ; ante, §§ 285, 818. 
 
CHAP. IX.] MATTERS OF DEFENCE AND DISCHARGE. 501 
 
 CHAPTER IX. 
 
 MArDEES OF DEFENCE AND DISCHARGE OF PARTIES TO PROMIS- 
 SORY NOTES. 
 
 § 370. Having t^ius ascertained the rights and duties of 
 the holder, and also of the antecedent indorsers, upon the 
 dishonor of a Promissory Note by the non-payment thereof 
 at maturity, let us now proceed to the consideration of the 
 matters of defence and discharge, which may be set up by 
 any of the parties to such a Note, in order to exonerate them- 
 selves from all liability to pay the same. In other words, let 
 us now consider what will amount to a bar or extinguish- 
 ment of the rights and demands of the holder against any or 
 all of the prior parties on the Note ; and also what will amount 
 to a like bar or extinguishment of the rights of any indorser, 
 or other prior party on the Note, against those who are ordi- 
 narily liable to reimburse and indemnify him for payment of 
 the Note. 
 
 § 371. We have already had occasion to consider what will 
 constitute a sufficient consideration, or not, in point of law, to 
 support a promise to pay a Promissory Note, by the maker 
 thereof, or by an indorser thereof upon a transfer, and by and 
 between what parties, and under what circumstances, the con- 
 sideration may be inquired into, and what other infirmities 
 and defects constitute a good defence to a suit by the holder 
 to enforce any Promissory Note against the antecedent par- 
 ties thereon.^ Upon these objections it is therefore unneces- 
 sary to dwell. When good, they properly apply to the orig- 
 inal concoction of the Note, or to the original validity of the 
 transfer thereof. We have also had occasion to consider, 
 
 ' ^nte, §§ 181-197, 203, 204, 241, 286-296. 
 
502 PKOMISSOEY NOTES. [CHAP. IX. 
 
 what omissions or neglects of duty on the part of the holder 
 will absolve the indorser from his responsibility under and in 
 virtue of his indorsement, the due performance of such duty 
 being a condition precedent to the due attachment of any 
 rights in the holder against the indorser. Upon these also it 
 is not our purpose to dwell. Our attention will be mainly 
 drawn to such matters of defence and discharge as arise 
 from facts which occur after the maturity of the Promissory 
 Note, and when the rights of the holder have become fully 
 vested and absolute. 
 
 ^ 372. In the first place, then, whatever will discharge the 
 maker of a Promissory Note will ordinarily amount to a per- 
 fect extinguishment of the claim of the holder against all 
 other parties thereon. Thus, for example, if the maker 
 makes due payment of the Note to a hona fide holder, that 
 will amount to a complete discharge of all other parties to 
 the Note. The reason is, that the maker is the primary 
 debtor in contemplation of law, and is absolutely bound to 
 the payment thereof ; whereas all the other and subsequent 
 parties are only conditionally bound to pay the same, when 
 the maker does not pay the. same upon due presentment, and 
 they have received due notice of the dishonor.^ So that pay- 
 ment by the maker is ordinarily a complete bar and extin- 
 guishment of all the rights of the holder against all the par- 
 ties to the Note. 
 
 § 373. But, although payment of the Note by the maker is 
 ordinarily a discharge of all the other parties thereto, yet 
 this doctrine is to be understood with its proper limitations 
 and qualifications ; for there are many cases in which such 
 a payment will be inoperative and void, even to discharge the 
 maker himself; and, unless he is discharged, the collateral 
 liability of the other parties will or may remain in full force. 
 Now, a payment by the maker may be invalid, (1.) because 
 
 ' Chitty on Bills, ch. 9, § 2, pp. 425, 426 (Sth edit.) ; Bayley on Bills, ch. 8, 
 pp. 318-323 (5th edit.); Story on Bills, § 410 ; Pardessus, Droit Comm. 
 Tom. 2, art. 399, 401 ; Pothier, De Change, n. 168, 169. 
 
CHAP. IX.] MATTERS OF DEFENCE AND DISCHARGE. 503 
 
 it is made by a wrong person, not entitled to make it ; (2.) 
 or to a wrong person, not entitled to receive it ; (3.) or at a 
 time which is premature, and will not bind a subsequent 
 holder ; (4.) or it may be a payment made under circum- 
 stances which take away from it all legal obligation and force. . 
 We will briefly consider each of these objections, in the order 
 in which they are above stated. 
 
 § 374. In the first place, by whom can payment be made, 
 so as to be obligatory and conclusive ? The general answer 
 to be given is, that it must be by some person who has a com- 
 petent right, capacity, and authority to make it.^ If made 
 by a married woman, who is the maker of the Note, it will 
 not be valid, unless made with the consent or authority of 
 her husband.^ If made by an infant, who is the maker of 
 the Note, the payment is revocable by him, and, if revoked, 
 it will cease to be of any validity.* If made by a bankrupt 
 out of his assets, after an act of bankruptcy committed by 
 him, it will be void and of no effect, unless it is protected by 
 some statute which imparts to it a binding force.* If made 
 by a person under duress or coercion, or by fraud or imposi- 
 tion, the payment is equally open to be avoided. If made by 
 an agent after the death of his principal, but the fact is un- 
 known to the agent, it may be open to the like objection, and 
 be liable to be recalled as a payment by mistake.^ 
 
 § 375. In the next place, to whom may payment be made, 
 so as to be obligatory and conclusive ? The general answer 
 here to be given is, that the payment should be made to the 
 
 > Ante, §§ 85, 87, 88 ; Bayley on Bills, ch. 8, § 3, p. 314 (5th edit.). 
 ' ' [Payment by a stranger will not affect the plaintiff, unless ratified by 
 him. Kemp v. Balls, 28 Eng. Law & Eq. 498; Goodwin v. Cremer, 16 
 Id. 90.] 
 
 ' Bayley on Bills, ch. 5, § 2, p. 135 (5th edit.); Id. ch. 8, p. 315. 
 
 " Ante,%% 77, 78. 
 
 * Chitty on Bills, ch. 9, pp. 426, 427 (8th edit.) ; Bayley on Bills, ch. 8, 
 p. 325 (5th edit.). 
 
 ' Story on Agency, §§ 488, 491, 492, 493, 494. But see Pothier, De 
 Change, n. 168 ; Pothier, De Mandat, n. 103, 106, 108. 
 
604 PROMISSORY NOTES. [CHAP. IX. 
 
 true proprietor of the Note, or to his authorized agent or per- 
 sonal representative.^ It becomes, therefore, of the highest 
 importance for the maker to ascertain, whether, when the 
 Note is presented to him for payment, the party demanding 
 it is such proprietor, or his authorized agent or representa- 
 tive.2 If the Note is payable .to A or order, for the use or 
 benefit of B, payment should be made to A, who is the legal 
 holder although a trustee, and not to B, who is a mere eestui 
 que trust, or beneficiary.^ If payment be made to a person 
 who assumes to be duly authorized, but in fact is not so, as 
 if made to a person acting as agent, but not in fact an agent, 
 or to a person purporting to be the personal representative, 
 or the executor or administrator of a party supposed to be 
 dead, but who is in reality still living, the payment is invalid 
 and a mere nullity.* So, if made to a married woman, who is 
 the payee or indorsee of the Note, without the consent of her 
 husband,^ or to a bankrupt, after an act of bankruptcy, with- 
 out the consent of his assignees,^ or to a person who is an 
 infant, or a non compos, without the consent of his guardian, 
 when he is under guardianship, it is equally invalid.'^ At 
 
 ' See Chitty on Bills, ch. 9, § 2, pp. 425, 426 (8th edit.) ; Bayley on 
 Bills, ch. 8, p. 314 (5th edit.) ; Pothier, De Change, n. 164, 168, 169 ; Story 
 on Bills, §§ 412, 413. 
 
 ^ Ibid. ; Pothier, De Change, n. 166. 
 
 ' Chitty on Bills, ch. 9, p. 428 (8th edit.) ; Bayley on Bills, ch. 5, § 2, p. 
 134 (5th edit.) ; Evans v. Cramlington, 2 Vent. 307; Skinner, 264; Garth. 
 5. But see Marchington v. Vernon, 1 Bos. & Pull. 101, note c; Smith v. 
 Kendall, 6 Term, 123 ; Story on Bills, § 414. 
 
 * Ibid. ; Story on Bills, § 413 ; Bayley on Bills, ch. 8, pp. 323, 324 (5th 
 edit.) ; Pardessus, Droit Comm. Tom. 2, art. 197 ; Pothier, De Change, n. 169. 
 
 " Bayley on Bills, ch. 5, § 2, p. 135 (5th edit.) ; Ibid. ch. 8, pp. 314, 
 315 ; Connor v. Martin, 1 Str. 516, cited 3 Wils. 5. See Pothier, De 
 Change, u. 166, 167. 
 
 " Chitty on Bills, ch. 9, § 2, pp. 425, 426 (8th edit.) ; Bayley on Bills, 
 ch. 8, pp. 314, 315 (5th edit.) ; Ante, § 102 ; Sowerby v. Brooks, 4_ B. & 
 Aid. 523 ; Story on Bills, §§ 412, 413. 
 
 ' Ante, §§ 82, 83, 85, 88, 101 ; Bayley on Bills, ch. 8, pp. 314, 315, 325 
 (5th edit.); Pothier, De Change, n. 160; Chitty on Bills, ch. 9, p. 428 
 (8th edit.). 
 
CHAP. IX.] MATTERS OF DEFENCE AND DISCHARGE. 505 
 
 least in the latter case it is invalid, if the guardianship is 
 known, whatever may be the case where the guardianship is 
 unknown.^ 
 
 § 376. The same principles will be found generally recog- 
 nized in the French law ; and, indeed, they seem, from their 
 intrinsic equity and good sense, to belong to the doctrines of 
 universal jurisprudence.^ They all proceed upon the general 
 propriety of the rule promulgated by Julian, and established 
 in the Roman law, in cases of agency. " Si nullo mandato 
 intercedente debitor fals6 existimaverit voluntate me§, pecu- 
 niam se numerare, non liberabitur." ^ And those who are 
 known to be incapable, by law, of giving a valid consent, or 
 of doing a valid act, to bind themselves or others, are deemed 
 in law to be in the same situation as if they had given no 
 consent, or done no act ; and in each case the proceeding is 
 a mere nullity. In short, although the maxim is not of uni- 
 versal application, " Qui cum alio contrahit debet esse gnarus 
 conditiouis e_[us, cum quo contrahit " ; yet the only admitted 
 exceptions seem to be, where the party contracting has been 
 misled by the negligence, or omission of duty, or fault of the 
 party against whom the contract is sought to be enforced.* 
 
 § 377. Pothier admits, that payment to a minor, having a 
 tutor, and taking the Note by succession, upon the death of 
 his parent, is not good, unless it has been turned to his profit ; 
 but that payment ought to be made to his tutor. But, if the 
 Note be made payable by the payee thereof to a minor, he 
 holds, that payment made to him by the maker is good, accord- 
 ing to the maxim, " Quod jussu alterius solvitur, perinde 
 est,- ac si ipsi solutum esset." ^ He holds the same rule 
 to be true, where a Note is payable to a single woman, who 
 
 ' Story on Bills, § 413 ; Leonard v. Leonard, 14 Pick. 280 ; Pothier, De 
 Change, n. 166. 
 
 ' Pardessus, Droit Comm. Tom. 2, art. 196, 197, 354 ; Pothier, De Change, 
 11. 16*6, 167; Nouguier, De Change, Tom. 1, pp. 342-344. 
 
 ' Dig. Lib. 46, tit. 3, 1. 34, § 4. 
 
 * See Pothier, De Change, ii. 167. 
 
 ' Ibid., n. 166 ; Dig. Lib. 50, tit. 17, 1180. 
 
506 PROMISSORY NOTES. [CHAP. IX. 
 
 afterwards marries, if her marriage is unknown to the 
 maker ; but, if known, he can safely pay only to the hus- 
 band.^ 
 
 § 378. Where payment is made to an agent of the holder, 
 whose authority has been revoked by the act of the holder, 
 but the revocation of the authority is unknown to the maker, 
 there the payment will be held good, and binding upon the 
 holder .2 But it will be otherwise if the revocation is, at the 
 time of the payment, known to the maker, or if the revocation 
 is not by the act of the party, but by mere operation of law ; 
 as, for example, if the revocation is by the death of the 
 holder, although the death is unknown to the maker .^ This, 
 at least, seems to be the clear result of our law ; but Pothier 
 holds, that, if the death is unknown, the payment bona fide 
 made will be good and valid.* 
 
 § 379. But cases of more frequent occurrence, and which 
 require on the part of the maker a more scrutinizing care, 
 are cases of forgery of the signature of the payee, or other in- 
 dorser of the Note. Before the maker pays any Note, he 
 should be entirely satisfied that the signature of the payee, or 
 other indorser, under whom the actual holder claims, is a 
 genuine and not a forged signature ; for, if it be a forgery, 
 then the payment to the holder will be a mere nnTlity.^ The 
 old French law was the same ; but it has, in the modern Code 
 of Commerce, undergone some modifications.® However, if 
 the maker does pay the Note, he may (as we shall presently 
 
 ' Pothier, De Change, n. 166. 
 
 ^ Ibid., n. 168 ; Story on Bills, § 417. 
 
 ' Story on Bills, § 413; Story on Agency, §§ 495-499; Pothier, De 
 Change, n. 168; Gait v. Galloway, 4 Peters, 332, 344; Aertson v. Cage, 2 
 Humph. 350. See Burrill v. Smith, 7 Pick. 291. 
 
 • Pothier, De Change, n. 168. 
 
 ^ Chitty on Bills, ch. 9, § 2, pp. 425, 426 (8th edit.) ; Story on Bills, 
 §§ 262, 263, 412, 450 ; Bayley on Bills, ch. 8, pp. 318-321 (5th edit.) ; 
 Id. ch. U, pp. 464, 465 ; post, § 380. See Kobarts v. Tucker, 4 Eng. Law 
 & Eq. 236. 
 
 • Pothier, De Change, n. 169; Locre, Esprit de Code de Comm. art. 
 145, Tom. 1, pp. 457-465. 
 
CHAP. IX.] MATTERS OF DEFENCE AND DISCHARGE. 507 
 
 see^) recover back the money. The reason is, that the maker, 
 by the payment of the Note, does not positively affirm the 
 genuineness of the signatures of the payee, or of any subse- 
 quent indorser (as the acceptor does the signature of the 
 drawer of a Bill, by accepting it^), for he is not presumed to 
 know them ; and if he pays the Note under a supposition 
 that the signatures are genuine, he pays under a mistake of 
 fact, and he is not bound thereby ; nor will he, or any other 
 party to the Note, be exonerated thereby from the liability 
 which otherwise attaches to him.^ [But the maker of a 
 
 ' Post, § 387. 
 
 ' Story on Bills, §§ 411, 412; Chitty on Bills, Pt. 1, ch. 7, pp. 336, 337 
 (8th edit.) ; Id. ch. 9, pp. 425, 426 ; Id. Pt. 2, ch. 5, pp. 625, 628, 629, 
 635 ; Bayley on Bills, ch. 8, pp. 318, 320, 322 (5th edit.) ; Id. ch, 11, p. 
 464 ; Smith v. Chester, 1 Tenn, 654 ; Carvicfc v. Vickery, 2 Doug. 653, 
 note. 
 
 ' Canal Bank v. Bank of Albany, 1 Hill, 287 ; Coggill v. American 
 Exchange Bank, 1 Comst. 113; Chitty on Bills, ch. 8, pp. 425,426,428, 
 430 (8th edit.) ; Id. ch. 9, pp. 463, 464. Upon this subject, Mr. Chitty 
 says : " With respect to payment, by mistake, of Bills or Notes, where there 
 has been forgery, the decisions and opinions have been contradictorj'. It 
 seems, however, clear, on principle, as well as authority, that a drawee of 
 a Bill, or a banker acting for his customer, cannot, in case he pays a Bill, 
 where the drawer's signature has been forged, or where the sum has been 
 fraudulently enlarged, without the fault of the drawer, debit the drawer 
 with the sum so paid, without his authority, or recover the amount from 
 him. But there are many conflicting decisions upon the question, whether 
 the party paying shall be allowed to recover back the money from the 
 person whom he has inadvertently paid. It has been contended, that, if 
 the party paid was a borui fide holder, ignorant of the forgery, then he 
 ought not to be obliged to refund, under any circumstances, although 
 he could not have enforced payment, and although he had immediate 
 notice of the forgery, because the drawee was bound to know the 
 handwriting of the drawer and the genuineness of the Bill ; and be- 
 cause the holder, being ignorant of the forgery, ought to have the benefit 
 of the accident of such payment by mistake, and not to be compelled to 
 refund. But, on the other hand, it may be observed, that the holder who 
 obtained payment cannot be considered as having altogether shown suffi- 
 cient circumspection ; he might, before he discounted, or received the in- 
 strument in payment, have made more inquiries as to the signatures, and 
 genuineness of the instrument, even of the drawer or indorsers themselves ; 
 and, if he thought fit to rely on the bare representation of the party from 
 
508 PROMISSORY NOTES. [cHAP. IX. 
 
 Note, or acceptor of a Bill, i^hose own name has been forged, 
 cannot recover back the money paid to an innocent holder, 
 if the payer had, at the time of payment, the means of ascer- 
 taining his liability upon it.^] 
 
 § 380. It is true, that every indorser of a Note, like the 
 indorser of a Bill of Exchange, does, by his indorsement, im- 
 pliedly admit the signatures of the antecedent indorsers to be 
 
 whom he took it, there ia no reason that he should profit by the accidental 
 payment, when the loss had alreadj' attached upon himself, and why he 
 should be allowed to retain the money, when, by an immediate notice of 
 the forgery, he is enabled to proceed against all other parties, precisely the 
 same as if the payment had not been made, and, consequently, the payment 
 to him has not in the least altered his situation, or occasioned any delay 
 or prejudice. It seems that, of late, upon questions of this nature, these 
 latter considerations have influenced the Court in determining, whether or 
 not the money shall be recoverable back ; and it will be found, on examin- 
 ing the older cases, that there were facts affording a distinction, and that, 
 upon attempting to reconcile them, they are not so contradictory as might 
 on first view have been supposed. It had been decided that a drawee, 
 who had accepted and afterwards paid a Bill, and, after waiting a consider- 
 able time, upon discovering that the drawer's name was forged, could not 
 recover back the amount, for there, by his acceptance, he gave credit to 
 the Bill, and thereby induced the plaintiff to take it, and he also delayed 
 giving notice of the forgery. So, in another case, whexe bankers paid a 
 forged acceptance, supposed to have been made by their customer, and 
 payable at their bank, but did not discover or give notice of the forgery to 
 the party they had paid for a week afterwards, it was held that such delay 
 precluded them from recovering back the amount, because thereby the 
 means of resorting with effect to the prior parties was prejudiced, if not 
 defeated ; but the Court were not unanimous in that decision ; Chambre, 
 J. being of opinion that ' the case came within the general rule of money, 
 paid under a mistake of facts, being recoverable back, and that, therefore, 
 the defendant was liable to refund ; and Dallas and Heath, J. J., think- 
 ing otherwise, on the ground that it was the plaintiff's duty to know their 
 customer's hand before they paid the Bill ; and Gibbs, C. J., being the 
 only judge who put the case on the true ground, namely, the plaintiff's 
 delay in giving notice of the forgery, and having thereby destroyed the 
 defendant's remedy over." Chitty on Bills, ch. 9, pp. 463, 464 (8th edit. 
 1833). See also Salem Bank v. Gloucester Bank, 17 Mass. 1; United 
 States Bank v. Bank of Georgia, 10 Wheat. 333 ; Levy v. United States 
 Bank, 1 Binn. 27. See also Bayley on Bills, ch. 8, pp. 325, 326 (5th edit 
 1830) ; Id. ch. 11, p. 484. 
 ' Mather v. Maidstone, 37 Eng. Law & Eq. 338. 
 
CHAP. IX.] MATTERS OF DEFENCE AND DISCHAEGE. 509 
 
 genuine.^ But this proceeds upon the intelligible ground, 
 that every indorser undertakes, that he possesses a clear title 
 
 ' Story on Bills, §§ 111, 225, 412 ; Ante, § 135 ; Bayley on Bills, ch. 11, 
 p. 465 (5th edit.) ; Robinson v. Yarrow, 7 Taunt. 455 ; Canal Bank v. 
 Bank of Albany, 1 Hill, 287 ; Lambert v. Pack, 1 Salk. 127 ; S. C, 1 Ld. 
 Raym. 443, 12 Mod. 244 ; State Bank v. Fearing, 16 Pick. 533 ; Central 
 Bank V. Davis, 19 Pick. 373, 374 ; Burrill v. Smith, 7 Pick. 291. See 
 Howell V. Wilson, 2 Blackf. 419; Sneed v. Hughes, 14 Geo. 542. This 
 seems to be the true doctrine of the law upon the subject, and it was ex- 
 pressly held by Lord Ellenborough, in Critchlow v. Parry, 2 Camp. 182. 
 See also Lambert v. Pack, 1 Salk. 127 (S. C. under the name of Lambert 
 V. Oakes, 1 Ld. Raym. 443, 12 Mod. 244) ; Chitty on Bills, Pt. 2, ch. 5. pp. 
 635, 636 (8th edit). In Bayley on Bills, oh. 5, § 3, p. 170 (5th edit), it is 
 laid down, that " An indorsement is no warranty that the prior indorse- 
 ments are genuine." And for this position he relies solely on the case of 
 The East India Company v. Tritton, 3 B. & C. 280. But that case did not 
 turn upon the point of the genuineness of the antecedent indorsement, but 
 upon the question, whether the person making it by procuration had com- 
 petent authority ; and the Court held, that, as the East India Company had 
 seen the power under which the procuration was made, before payment of 
 the Bill, as acceptors, they were bound by their own act ; and therefore 
 they had no good cause of action against the defendants, who had received 
 the money £is agents, and had paid it over to their principals, without 
 notice of any defect of title. It is true that Mr. Justice Bayley, in that 
 case,. said : "Nor am I prepared to admit, that every indorser warrants the 
 genuineness of the prior indorsements." This was merely the expression 
 of a doubt, not called for by any direct point in the case ; and he imme- 
 diately added : " But it is not necessary to decide or discuss that question." 
 Mr. Justice Littledale intimated the same doubt ; but Lord Chief Justice 
 Abbott and Mr. Justice Holroyd said nothing on the point. In Smith v. 
 Mercer, 6 Taunt 83, Mr. Justice Chambre said, that an indorsement was a 
 sort of warranty of the genuineness of the acceptance, that being on the 
 Bill at the time of the indorsement, and making a part of the instrument. 
 It seems, indeed, difficult to perceive the ground upon which the opposite 
 doctrine is maintainable. Every indorsement presupposes that the indorser 
 has a good title to convey the same to the indorsee, so that he necessarily 
 warrants a good title from the prior parties under and through whom he 
 claims. And it would be equally clear that he impliedly warrants to the 
 indorsee, that, in case of a dishonor, he may have a rightful recourse, not 
 only to himself, but to all the other parties who stand as prior indorsers on 
 the Note, and are therefore liable to be sued in that character. See also 
 Story on Bills, § 110, and note, §§ 111, 225, 262, 263, 412. [In Robarts v. 
 Tucker, 4 Eng. Law & Eq. 236, it was held that if a Bill of Exchange, 
 
510 PROMISSORY NOTES. [CHAP. IX. 
 
 to the Note, deduced from and through all the antecedent in- 
 dbrsers, and that he means to clothe the holder under him 
 with all the rights which by law attach to a regular and 
 genuine indorsement, against himself and all the antecedent 
 indorsers. It is in this confidence that the holder takes the 
 Note without further explanation ; and if each party is 
 equally innocent, and one must suffer, it should be he who 
 has misled the confidence of the other, and, by his acts, held 
 out to the holder that all the indorsements are genuine, and 
 may be relied on as an indemnity, in case of the dishonor 
 thereof. So that the indorser stands in a very different pre- 
 dicament from that of the maker, as the latter binds himself 
 only to pay the true, bona fide owner or holder, whose title 
 he has no adequate means to ascertain ; and payment to any 
 person, not truly such owner or holder, is a payment which 
 cannot exonerate him from the duty to pay it again to the 
 true owner or holder. The indorser cannot, on the other 
 hand, have any reason to complain, if he is called upon to 
 repay the money which he has received from the holder, 
 upon an indorsement of a title which turns out to be void 
 or ineffectual against the maker ; for then there is a total 
 failure of the consideration on which the transfer was 
 made. 
 
 § 381. In ordinary cases, where a Note is in all respects 
 genuine, and with a genuine indorsement in blank by the 
 proper owner or holder, the possession of it is sufficient to 
 entitle the person, producing it,, to receive payment thereof. 
 
 made payable to ord'er, be accepted payable at the acceptor's bankers', and 
 the indorsement of the payee be forged, and the bankers pay the Bill to a 
 party "presenting it for payment, they are guilty- of no breach of duty 
 towards the acceptor in making the payment ; but they are not at liberty 
 to charge the amount of the Bill in account against him, although the 
 payee be a stranger to them, and they have no immediate means of 
 ascertaining the genuineness of his handwriting, and have dealt with the 
 Bill in the ordinary course of business. Senible, the bankers have a reason- 
 able time to inquire into the genuineness of the indorsements of strangers 
 necessary to make out the title to the Bill.] 
 
CHAP. IX.] MATTERS OF DEFENCE AND DISCHARGE. 511 
 
 For such possession is prima facie, or presumptive evidence, 
 that he is the proper owner or lawful possessor of the Note ; ^ 
 [and that he had received it before it became due, for a valu- 
 able consideration, and without notice of usury .^ But this 
 possession is only prima facie, evidence of title, and may be 
 explained and rebutted.'' But evidence that the holder did 
 not obtain possession until the Note was overdue, does not 
 rebut the presumption.*] And, indeed, if this doctrine did 
 not prevail, the maker would, in many cases, pay at liis peril, 
 where the true owner or holder is unknown to him ; and 
 endless embarrassments would grow out of the negotiations 
 of Notes, which, in a vast variety of cases, pass by mere de- 
 livei-y from hand to hand, when there is a blank indorsement 
 by the lawful owner or holder thereof. It is, therefore, for 
 the security of all persons, that the rule is adopted, to pre- 
 vent innocent holders from being compelled to establish their 
 title, before the maker will be bound to pay the Note ; and 
 they may be bona fide purchasers and holders by mere de- 
 livery, without the knowledge, or means of knowledge, of the 
 persons through whose hands the Note has passed by delivery 
 after such a blank indorsement.® 
 
 § 382. Hence it is, that if the maker pays the Note, which 
 has been indorsed in blank, and is afterwards lost or stolen, 
 and then gets into the hands of a bona fide holder, for a 
 valuable consideration, the payment to such holder will be 
 perfectly valid, and protected by law.^ But if paid under 
 
 • Chitty on Bills, ch. 9, § 2, pp. 425, 428, 429 (8th edit. 1833) ; Story on 
 Bills, §§ 193, 194; Aspinwall v. Meyer, 2 Sandf. 180; Smith v. Runnells, 
 Walker, Miss. 144; Smith v. Prestige, 6 S. & M. 478; Burekmyer v. 
 Whiteford, 6 Gill, 1 ; Ellsworth ». Fogg, 35 Verm. 355. 
 
 ^ Smedberg v. Whittlesey, 3 Sandf. Ch. 320 ; Smedbery v. Simpson, 2 
 Sandf. 87. 
 ' Southwick V. Ely, 15 N. H. 541. 
 
 * James v. Chalmers, 2 Seld. 209 ; overruling Brisbane v. Pratt, 4 Denio, 
 63. 
 
 ' Story on Bills, § 415. 
 
 » Chitty on Bills, ch. 9, pp. 429, 430 (8th edit. 1833) ; Pothier, De 
 Change, n. 168 ; Bayley on Bills, ch. S, § 2, pp. 130, 131 (5th edit. 1830) ; 
 
512 PROMISSORY NOTES. [CHAP. IX. 
 
 circumstances which establish a want of good faith on the 
 part of the maker, the payment will be nugatory.^ It was 
 formerly thought, that, if payment was made to a holder 
 under circumstances of suspicion, or which might properly 
 put the maker upon further inquiry, that would take away 
 his right to be protected by such payment.^ This doctrine 
 has been since qualified, and, indeed, overruled, as having a 
 direct tendency to obstruct the negotiation of all Notes, pay- 
 able to bearer, or negotiated by delivery, after a blank in- 
 dorsement, since their circulation would be materially af- 
 fected therebj^, if not in a great measure stopped.^ But the 
 reasonable doctrine now established, is, that nothing short 
 of fraud, not even gross negligence, if unattended with mala 
 fides, on the part of the maker, or other party paying a Note, 
 will invalidate the payment, so as to take away the rights 
 founded thereon.* 
 
 § 383. But here, again, the doctrine already stated must 
 be understood to apply solely to cases where the indorse- 
 ment is in blank ; for if the indorsement on the Note should 
 be in full, payable to a particular person, as to A or his order, 
 and the Note should be lost or stolen, and the finder should 
 go to the maker and represent himself to be the' person des- 
 ignated in the indorsement, (A), and the maker, trusting 
 to his representation, should pay the Note to him, that would 
 be no discharge, or payment thereof, against A ; for in such 
 a case the maker pays at his peril, and is bound to ascertain 
 the identity of the party to whom he pays, before he makes 
 
 Id. ch. 12, pp. 524, 531 ; Anon. 1 Ld. Kaym. 738 ; Miller v. -Race, 1 Burr. 
 452 ; Grant v. Vaughanj .S Burr. 1516. 
 
 ' Ibid. 
 
 " Chitty on Bills, ch. 9, pp. 429, 430 (8tli edit. 1833) ; Bayley on Bills, 
 ch. 12, pp. 524-531 (5th edit. 1830). 
 
 " Down V. Hailing, 4 B. & C. 330 ; Gill v. Cubitt, 3- B. & 0. 466 ; Story 
 on Bills, §§ 193, 194. 
 
 * Crook V. Jadis, 5 B. & Ad. 909 ; Backhouse v. Harrison, 5 B. & Ad. 
 1098 ; Goodman u. Harrey, 4 A. & El. 870 ; Uther v. Rich, 10 A. & El. 
 784 ; 1 Selw. N. P. Dig. p. 347 (10th edit. 1842) ; Story on Bills, § 416. 
 See Pothier, De Change, n. 169. 
 
CHAP. IX.] MATTERS OF DEFENCE AND DISCHARGE. 513 
 
 payment. Pothier has discussed the same question, and 
 finally arrived at the same conclusion, and he affirms that 
 merchants maintain it, as the invariable rule, in the usage 
 and practice of business.^ 
 
 § 384. In the next place, as to the time of the payment of 
 the Note by the maker. In order to make a payment by the 
 maker good, and binding upon all the other parties to the 
 Note, it should be made at the maturity of the Note, and not 
 before ; for, although, as between the real and bona fide 
 holder and the maker, the payment, whenever made and how- 
 ever made, will be a conclusive discharge from the obligation 
 of the Note ; yet, as to third persons, it may be far otherwise ; 
 for payment means payment in due course, and not by antici- 
 pation.^ If, therefore, the maker should pay a Promissory 
 Note, before it is due to any holder, who should afterwards, 
 and before its maturity, indorse or pass the same to any sub- 
 sequent bona fide indorsee, or other holder, the latter would 
 still be entitled to full payment thereof from' the maker at its 
 maturity ; for payment of the Note, before it becomes due, is 
 no extinguishment of the debt as to such persons.^ [But it 
 has been held that the holder of a Note, which has been paid 
 by the maker to the payee before its' maturity, and afterwards 
 wrongfully negotiated by such payee, is bound to show that 
 he took the Note bona fide and for a valuable consideration.*] 
 The same doctrine prevails in the French law ; ^ and it will 
 apply to the case, where the holder is a mere agent of the 
 
 ' Pothier, De Change, n. 169; Pardessus, Droit Comm. Tom. 2, art. 
 197. But see Code de Comm. art. 145, and the Commentary of Locre, 
 Esprit du Code de Comm. art. 145, Tom. 1, pp. 457-465. 
 
 ' Chitty on Bills, ch. 9, pp. 428, 431 (8th edit. 1833) ; Burbridge v. Man- 
 ners, 3 Camp. 193 ; Mayo v. Moore, 28 111. 428 ; Gillan B. Huber, 4 Greene- 
 (lo.), 155; Wilkinson v. Sargent, 9 lo. 521; Grant v. Kidwell, 30 Mo. 
 455. 
 
 ' Chitty on Bills, ch. 6, p. 286 (8th edit. 1833) ; Bayley on Bills, ch. 8, 
 p. 326 (5th edit. 1830), citing De Silva v. Fuller, MSS. ; Marius on Bills, 
 p. 31. 
 
 ' Fabens v. Tirrell, Law Rep. May,, 1852, p. 144. 
 
 ' Pardessus, Droit Comm. Tom. 2, art. 401. 
 
514 PEQMIS.v' NOTES. [chap. IX. 
 
 real owner, and his authority has been countermanded be- 
 fore the Note is due ; ^ and, a fortiori, to the case, where the 
 Note is presented and paid to a mala fide holder, before it is 
 due.2 
 
 § 385. In respect to partial payments, made by the maker 
 to the holder, before, at, or after the maturity of the Note, 
 they will in no "respect discharge the obligations of the indors- 
 ers, except to the amount of the sums so paid, unless the pay- 
 ments are made upon some other stipulations, which are or 
 may be injurious to the interests of the indorsers (which we 
 shall have occasion presently to consider 2) ; for, under other 
 circumstances, they are for his relief, and diminish, pro tanto, 
 his responsibility. Similar considerations will apply to the 
 case of partial payments, received by the holder from any in- 
 dorser, under the same circumstances. 
 
 § 386. In the next place, as to the circumstances, which 
 will take away from the payment, made by the maker, all 
 obligation and force. These have been, for the most part, 
 already brought under review, under the preceding heads. 
 Payment by the maker will be valid as to third persons only, 
 when it is bona fide made, without any knowledge of facts, 
 which justly impair or destroy the rights of the holder.* If, 
 therefore, the maker has notice at the time, that the holder 
 has no title to receive the money, and, a fortiori, \i\\Q knows 
 'that he is receiving it in violation of his known duty and 
 trust, the payment will not be held to be valid or obligatory, 
 as to the parties really interested. The like rule will apply 
 to the case of an indorser, who, pays the Note with full knowl- 
 edge that he is under no obligation to pay it ; as, for exam- 
 ple, if an indorser who has riot received due notice of the 
 dishonor of the Note should pay it, it would be at his own 
 risk ; and he would not be, entitled to recover the same from 
 
 ' Marius on Bills, p. 31 ; Bayley on Bills, ch. 8, p. 326 (5th edit. 1830). 
 ' Story on Bills, §417. 
 » Ibid. §§ 421, 422, 425. 
 * Ibid. § 430. 
 
CHAP. IX.] MATTERS OF BEB ^''AKD DISOHAKGE. 515 
 
 any antecedent indorser, who might have been liable to him 
 if he had been legally chargeable therewith, but who would 
 otherwise be discharged.^ For no indorser can, by his mere 
 voluntary and unnecessary payment, affect the rights of the 
 antecedent indorsers, or charge them with liabilities from 
 which they have been already absolved by the principles of 
 law.* It may also be laid down as a general rule, that pay- 
 ment by the maker to a holder, claiming under a forged in- 
 dorsement, will not exonerate the maker from payment to 
 the rightful owner.* 
 
 § 387. When and under what circunastances, in case of a 
 forgery or fraudulent alteration of a Promi|Bory Note, a per- 
 son who is a party to the Note, either as maker, or payee, or 
 indorser, and pays it to a bona fide holder, will be entitled to 
 recover back the money from the holder, has been a matter 
 of much discussion, and has been already adverted to in a 
 preceding section.* The question has most commonly oc- 
 curred in cases of Bills of Exchange ; but the same princi- 
 ples will often, by analogy, apply to cases of Promissory 
 Notes. The maker of a Note does not, by implication (as we 
 have already seen^), admit the genuineness of the signatures 
 of the subsequent parties, either of the payee, or any subse- 
 quent indorser thereon, as the acceptor of a Bill does the sig- 
 nature of the drawer ; ^ but he stands in the same predica- 
 ment as the acceptor does, as to indorsers on the Bill ; that 
 is, he does not admit the genuineness of their signatures.'^ 
 Hence, a payment of the Note by the maker, where the sig- 
 
 1 Ante, § 334 ; Story On Bills, § 423 ; Chitfy on Bills, ch. 9, p. 458 (8th 
 edit.). 
 
 " Chitty on Bills, ch. 9, pp. 426, 458 - 464 (8th edit.). 
 
 " Ibid.; Bayley on Bills, ch. 8, pp. 318-323 (5th edit.) ; Id. ch. 11, p. 
 463, and note, 464 ; Story on Bills, § 423. See Milnes v. Duncan, 6 B. & 
 C. 671; ante, § 379. 
 
 * Ante, § 379 ; Story on Bills, § 451. 
 
 ' Ante, §§ 379, 380. 
 
 « Story on Bills, §§113, 262, 411, 448; Price v. Neal, 3 Burr. 1354; 
 ante, § 118. 
 
 ' Story on Bills, §§ 262, 411, 448, 451 ; ante, § 135, and note, § 379. 
 
516 PROMISSORY NOTES. [CHAP. IX. 
 
 nature of the payee, or any subsequent indorser, is forgedj 
 will not bind the maker, but he may recover back the money 
 which he has paid to the holder.^ So, if the payee should 
 pay the Note to the holder under a subsequent forged in- 
 dorsement, he may, in like manner, recover back the amount.^ 
 But if a subsequent indorser should pay the amount to the 
 holder, where the signature of the maker, or of a prior in- 
 dorser is forged, he could not recover it back, because every 
 indorser, in legal effect, warrants the genuineness of the sig- 
 natures of the antecedent parties, of the indorsers, as well 
 as of the maker.^ 
 
 § 388. From what has been already suggested, it is appar- 
 ent of what great importance it is, that every indorser, who 
 is called iipon by the holder to take up a Note, should per- 
 fectly assure himself, not only that the party applying for 
 payment is the true and lawful holder of the Note, but also, 
 that there has not been any laches, either by such holder, or 
 by any other party, which will afiect the merits of the claim 
 against him ; for, if there has been such laches, by which the 
 prior parties on the Note have been discharged, any indorser 
 who shall unnecessarily pay the Note will n'ot thereby revive 
 the liability of the prior parties, or be entitled to recover 
 against them.* Thus, if a Note has been dishonored at ma- 
 turity, and due notice thereof has not been given by the 
 holder, or other party to the Note, so as to bind the antece- 
 dent parties, payment by any subsequent indorser, who has 
 not received due notice, will not revive the liability of the 
 antecedent parties, but they will remain discharged.^ So, if 
 
 the prior parties have not-received due notice of the dishonor 
 -'1 
 
 ' See Bayley on Bills, ch. 5(1, pp. 462-466 (5th edit.) ; Thomson on 
 .Bills, ch. 8, pp. 373, 374 (2d edit.) ; ante, §§ 379, 380. 
 
 « Ante, §§ 379, 380. 
 
 » Bayley. on Bills, ch. 11, pp. 462, 463 (5th edit.) ; ante, §§ 136, 380 ; 
 "3 Comst. 230. 
 
 * Chitty on Bills, ch. 9, p. 426 (8th edit. 1833). See Konig v. Bayard, 
 1 Peters, 262 ; imte, §§ 334, 386. 
 
 ' Ibid. ; Roscow v. Hardy, 12 East, 434 ; ante, § 386. 
 
CHAP. IX.] MATTERS OF DEFENCE AND DISCHARGE. 517 
 
 of the Note, and a subsequent indorser shall pay it to the 
 holder, from which payment he is exonerated by the holder's 
 laches, in giving him notice a-day too late, such payment will 
 not bind the prior parties ; for he has no right, by such pay- 
 ment, to place them in a worse situation than they would 
 otherwise have been.^ 
 
 § 389. In the next place, as to the mode or. manner in 
 which payment is to be made by the maker, or received by 
 the holder. And here the rule is, that payment should ordi- 
 narily be made in money or coin by the maker, according to 
 its true value and denomination in the Note, and the holder 
 is not bound to accept anytliing but such money or. coin, at 
 its true and proper value.^ Where the holder receives a 
 Promissory Note, or Bill, in payment of a debt, it is not an 
 absolute, but a conditional payment only, unless otherwise 
 agreed by the parties ; and it only suspends the right to re- 
 cover the original debt, until the credit has expired.^ If the 
 holder be a mere agent, he has no right to accept payment in 
 goods, in lieu of money, unless specially authorized so to do.* 
 If the holder accepts a draft or a check on a bank or a 
 banker,, in payment of the Note, it has been said that he is 
 not obliged to give up the Note, before payment of the draft 
 or check ; and, if he does, the indorsers are discharged there- 
 by.^ If the holder accepts such draft or check, it will, ordi- 
 
 ' Turner v. Leech, 4 B. & Aid. 451 ; Story on Bills, § 423. 
 
 ' Chitty on Bills, oh. 9, p. 433 (8th edit. 1833) ; ante, § 115. 
 ' ' Sayer v. Wagstaff, 5 Beav. 415 ; ante, § 104 ; post, § 438. 
 
 * Chitty on Bills, ch. 9, p. 433 (8th edit. 1833) ; Howard v. Chapman, 
 4 C. &. P. 508. 
 
 ' Chitty on Bills, ch. 9, pp. 433, 434 (8th edit. 1833) ; Marius on Bills, 
 pp. 21, 22. See also Hansard v. Kobinson, 7 B. & C. 90. Mr. Chitty (pp. 
 433, 434) says : " Payment is frequently made by a draft on a banker ; in 
 which case, if the person receiving the draft do not use due diligence to 
 get it paid, the person from whom he received it, and every other party to 
 the Bill, will be discharged, but not otherwise, unless the holder expressly 
 agreed to run all risks ; for a banker's check is not money." From this 
 language it might be inferred, that, if the holder took a draft on a banker, 
 and presented it in due time, and it was dishonored, the drawer and in- 
 
518 PKOMISSOEY NOTES. [CHAP. IX. 
 
 narily, discharge the indorsers, but it will operate, as to him- 
 self, as a conditional payment only, that is, if upon present- 
 ment the check is duly paid by the bank or banker. But, if 
 the draft or check is not presented for payment within a rea- 
 sonable time by the holder, and then the bank or banker 
 fails, the holder himself must bear the loss.^ If the holder 
 receives bank-notes of a bank in payment, then the indorsers 
 are discharged, and the maker also, if the bank had not then 
 failed, but would, upon due presentment, have paid the same, 
 although it should afterwards fail, and become utterly insol- 
 vent.2 But, if the bank had then actually failed, although 
 
 dorsers, as well as the acceptor, would still remain liable on the Bill. 
 There is no doubt that the acceptor will. But, upon principle, the drawer 
 and indorsers would be discharged ; for, by their contract, payment should 
 be made on the day of maturity, and in money. From a subsequent pas- 
 sage (p. 434) it would seem, that Mr Chitty did not mean to inculcate a 
 different opinion. He there says : " When payment is made by the drawee 
 giving a draft on a banker, Marius advises the holder not to give up the 
 Bill until the draft be paid. Till lately, the usage in London was otherwise, 
 when the drawee was a respectable person in trade ; and in one case it 
 was decided, that a banker having a Bill remitted to him, to present for 
 payment, is not guilty of negligence in giving it up, upon receiving from 
 the acceptor a check upon another banker for the amount, payable the 
 same day, although such check be afterwards dishonored. But in a late 
 case at Nisi Prius, it was considered, that drawer and indorsers of a Bill 
 would be discharged by the holder's taking a check from and delivering up 
 the Bill to the acceptor, in case the check be nbt paid ; because the drawer 
 and indorsers-have a right to insist on the production of the Bill, and to 
 have it delivered up, on payment by them. If the holder of a draft on a 
 banker receive payment thereof in the banker's Notes, instead of cash, and 
 the banker /ail, the drawer of the check will be discharged. But if a cred- 
 itor, on any other account than a Bill of Exchange, is offered cash in pay- 
 ment of his debt, or a check upon a banker, from an agent of his debtor, 
 and prefer the latter, this does not discharge the debtor, if the check is 
 dishonored, although the agent fails, with a balance of his principal in his 
 hands to a much greater amount." 
 
 > Bayley on Bills, ch. 7, § 1, pp. 236-244 (5th edit. 1830) ; Id. oh. 9, 
 pp. 364-369; Chitty on Bills, ch. 9, p. 434 (8th edit. 1883); Story on 
 Bills, § 109, and note ; Ward v. Evans, 2 Ld. Raym. 930 ; Vernon v. Bo- 
 verie, 2 Show. 296. 
 
 ' Ibid. ; Story on Bills, § 111, and note, § 225, and note ; Fogg v. Saw- 
 yer, 9 N. H. 365. 
 
CHAP, IX.] MATTERS OF DEFENCE AND DISCHARGE. 619 
 
 ■unknown to both par ties,, the payment will not be deemed 
 valid, unless the holder, upon receiving them, has agreed to 
 run the risk of their dishonor, or of the insolvency of the 
 bank.^ But in this case, as in the former case, the indorsers 
 will be discharged ; although the maker will still be liable to 
 pay the amount to the holder. The reason of the distinction 
 is this, that the indorsers are entitled to have the Note imme- 
 diately paid in cash, and, if the holder receives bank-notes in 
 payment, he gives credit for the time to the maker, pro tanto, 
 and this he is not at liberty to do at the risk of the indorsers.^ 
 But, as between the maker and the holder, the payment in 
 bank-notes is but a conditional payment, to be void, if the 
 bank is then insolvent, or if, being then solvent, the holder 
 demands payment within a reasonable time, and payment is 
 refused.^ 
 
 • Story on Bills, §419; Fogg v. Sawyer, 9 N. H. 365; ante, §119; 
 Thomas v. Todd, 6 Hill, 340. 
 
 " See Thomson on Bills, ch. 5, § 4, pp. 388, 389 ; Chitty on Bills, ch. 9, 
 p. 432 (8th edit.) ; Id. p. 434 ; Story on Bills, § 419, and note. 
 
 ' Story on Bills, § 109, and note, § 225, and note ; ante, § 119 ; Fogg v. 
 Sawyer, 9 N. H. 365 ; Chitty on Bills, ch. 6, pp. 268-271 (8th edit. 1833) ; 
 Story on Bills, §§ 108, 110, 111; Camidge v. Allenby, 6 B. & C. 373; 
 Owenson j^. Morse, 7 Term, 64 ; Ex parte Blackbume, 10 Ves. 204 ; Emly 
 V. Lye, 15 East, 7, 13, per Bayley, J. This subject seems involved in some 
 perplexity by the authorities, especially where the Bill, when taken (as, 
 for example, the Bill of a banker payable to bearer), is the Bill of parties 
 who are insolvent, and unable to pay at the time of the transfer, and that 
 fact is unknown to both parties. Under such circumstances, it has been 
 held in Pennsylvania, in the case of the transfer of bank-notes, after the 
 bank had failed, unknown to both parties, that the holder had no right to 
 recover against his immediate transferrer. Bayard v. Shunk, 1 Watts & 
 Serg. 92. The like doctrine seems to have been intimated in Young v. 
 Adams, 6 Mass. 182, 185, and was held in Scruggs v. Gass, 8 Yerg. 175, 
 j,nd Lowry v. Murrell, 2 Porter, 282. But the opposite doctrine was main- 
 tained in Lightbody v. The Ontario Bank, 11 Wend. 1, and affirmed on 
 error, in the Court of Errors, in 13 Wend. 101, and in Fogg v. Sawyer, 9 N. 
 H. 365 ; Wainwright v. Webster, 11 Verm. 576; Frontier Bank v. Morse, 
 22 Maine, 88 ; Gilman v. Peck, 11 Verm. 516 ; Timmis o. Gibbins, 14 
 Eng. Law & Eq. 64." Story on Bills, § 419 ; Harley v. Thornton, 2 Hill 
 (S. C), 509, is on the same side. After all, the point seems to resolve 
 
520 PROMISSORY NOTES. [CHAP. I3E. 
 
 § 390. It sometimes happens that, between the date of a 
 Promissory Note and the time of its becoming due, a change 
 
 itself more into a question of fact, as to the intent, than as to law ; and it 
 must and ought to turn upon this, whether, taking all the circumstances 
 together, the Bill was taken as absolute payment by the holder, at his own 
 risk, or only as conditional payment, he using due diligence to demand and 
 collect it. Mr. Chitty has discussed the subject somewhat at large, and 
 says : " It has been said, that a transfer by mere delivery, without any in- 
 dorsement, when made on account of a pre-existing debt, or for a valuable 
 consideration, passing to the assignor at the time of the assignment (and 
 not merely by way of sale or exchange of paper), as,, where goods are sold 
 to him, imposes an obligation on the person making it, to the immediate 
 person in whose favor it is made, equivalent to that of a transfer by formal 
 indorsement. But this expression seems incorrect; for the party, transfer- 
 ring only by delivery, can never be sued upon the instrument, either as if 
 he were an indorser, pr as having guaranteed its payment, unless he ex- 
 pressly did so. The expression should be, ' that, if the instrument should 
 be dishonored, the transferrer, in such case, is liable to pay the debt, in re- 
 spect of which he transferred it, provided it has been presented for pay- 
 ment in due time, and that due notice be given to him of the dishonor.' 
 A distinction was once taken between the transfer of a bill or check for a 
 precedent debt, and for a debt arising at the time of the transfer ; and it 
 was held, that, if A bought goods of B, and at the same time gave him 1 
 draft on a banker, which B took without any objection, it would amount to 
 payment by A, and B could not resort to him in the event of the failure of 
 the banker. But it is now settled, that, in such case, unless it was expressly 
 agreed at the time of the transfer that the assignee should take the instru- 
 ment assigned, as payment, and run the risk of its being paid, he may, in 
 case of default of payment by the drawee, maintain an action against the 
 assignor on the consideration of the transfer. And, where a debtor, in pay- 
 ment of goods, gives an order to pay the bearer the amount in Bills on 
 London, and the party takes Bills for the amount, he will not, unless guilty 
 of laches, discharge the original debtor. And, where a person obtains 
 money or goods on a bank-note, navy bill, or other Bill or Note, on getting 
 it discounted, although without indorsing it, and it tiirns out to be forged, 
 he is liable to refund the money to the party from whom he received it, on 
 the ground that there is in general an implied warranty that the instrument 
 is genuine. And, though a party do not indorse a Bill or Note, yet he may, 
 by a collateral guaranty or undertaking, become personally liable. But 
 as, on a transfer by mere delivery, the assignor's name is not on the instru- ' 
 ment, there is no privity of contract between him and any assignee, becom- 
 ing such after the assignment by himself ; and, consequently, no person but 
 his immediate assignee can maintain an action against him, and that only 
 on the original consideration, and not on the Bill itself. And, if only one 
 
CHAP. IX.] MATTERS OF DEFENCE AND DISCHARGE. 521 
 
 in the value of the coin or currency in which it is made pay- 
 able takes place in the same country. And the question 
 may, under such circumstances, arise, whether such a change 
 in the value of the coin or currency will have any effect upon 
 the amount which is to be paid.^ Thus, for example, a Note 
 may be given in England, for the payment of one hundred 
 guineas therein at a future day, and, before that day arrives, 
 by an act of Parliament, the standard value of a guinea, 
 which is then twenty-one shillings sterling, may be raised to 
 twenty-two shillings sterling, or it may be lowered to twenty 
 shillings sterling ; that is, a guinea may become increased in 
 value, or depreciated in value. In such a case, whether the 
 guinea be increased or depreciated in value, the Note will 
 be discharged by a due payment in one hundred current 
 guineas, or in any other coin which, in the currency of the 
 country, is at that time of equivalent value, according to 
 the act of Parliament. If the Note were, in like manner, 
 for the payment of one hundred pounds sterling, payment 
 ^f that sum in guineas, or other coin of the realm, of 
 
 of several partners indorse his name on. a Bill, and get it discounted 
 with a banker, the latter cannot sue the firm, though the proceeds of the 
 Bill were carried to the partnership account. When a transfer by mere 
 delivery, without indorsement, is made merely by way of sale of the Bill 
 or Note, as sometimes occurs, or (by) exchange of it for other Bills, or by 
 way of discount, and not as a security for money lent, or where the assignee 
 expressly agrees to take it in payment, and to run all risks ; he has, in genr 
 eral, no right of action whatever against the assignor, in case the Bill turns 
 out to be of no value. But there can be no doubt, that, if a man assign a 
 Bill for any sufficient consideration, knowing it to be of no value, and the 
 assignee be not aware of the fact, the former would, in all cases, be com- 
 pelled to repay the money he had received. And it should seem that, if, on 
 discounting a Bill or Note, the Promissory Note of country bankers be de- 
 livered after they have stopped payment, but unknown to the parties, the 
 person taking the same, unless guilty of laches, might recover the amount 
 from the discounter, because it must be implied, that, at the time of the trans- 
 fer, the Notes were capable of being received, if duly presented for pay- 
 ment." Chitty on Bills, ch. 6, pp. 268-271 (8th edit. 1833). See Bar- 
 nard V. Graves, 16 Pick. 41 ; Dennie v. Hart, 2 Pick. 204 ; Story on Bills, 
 § 419; 3 Kent, Lect. 44, p. 86, note. 
 ' Thomson on Bills, ch. 5, § 4, pp. .686, 387 (2d edit.). 
 
522 PROMISSORY NOTES. [CHAP. IX, 
 
 an equivalent value, at the rate prescribed by the act of 
 Parliament, ^ould be a full discharge and payment of the 
 
 Note.i 
 
 ° Ante, § 168. This doctrine, was much considered in The Case of 
 Mixed Money, so called, reported in Sir John Davies's Reports, 28 [48]. 
 That case was as follows : A bond had been given in England, in the 43d 
 of Elizabeth, for £ 200, on condition that the obligor should pay the oWigee, 
 his executors, or assigns, " £ 1 00 sterling, current and lawful money of 
 England," at a future day, at a certain place in Christ Church, Dubhn ; 
 and between the time of the giving of the bond, and its becoming due. 
 Queen Elizabeth, by proclamation, recalled the existing currency or coin- 
 age, in Ireland, and issued a new and debased coinage, called mixed 
 money, and declared it to be the lawful and current money of Ireland, 
 and to be received at its value, fixed by the proclamation, in payment of all 
 debts. When the bond became due, the obligor made a tender of the 
 £100 in the mixed money of the new standard, in performance of the con- 
 dition of the obligation. The question was, whether this was a good tender 
 or not, and the judges of Ireland were required, by the Lord Deputy of 
 Ireland, to give their opinions thereon ; and, accordingly, the judges deliv- 
 ered their opinions upon the several points raised. The fourth point resolved 
 was, that the .said mixed money, having the impression and inscription of 
 the Queen of England, and being proclaimed for lawful and current money, 
 within the kingdom of Ireland, ought to be taken and accepted for sterling 
 money. Fifthly, it was resolved, that, although this mixed money was made 
 to be current within the kingdom of Ireland only, yet it may well be said to 
 be current and lawful money of England ; (1.) because Ireland is a member 
 of the imperial crown of England ; (2.) because the place of coinage was in 
 the Tower of London, in England. Sixthly, and lastly (which is most im- 
 portant to our present purpose), " It was resolved, that, although at the 
 time of the contract and obligation made in the present case, pure money 
 of gold and silver was current within this kingdom, where the place of 
 payment was assigned ; yet the mixed money, being established in this king- 
 dom before the day of payment, may well be tendered in discharge of the 
 said obligation, and the obligee is bound to accept it ; and if he refuses it, 
 and waits until the money be changed again, the obligor is not bound to 
 pay other money of better substance, but it is sufficient if he be always 
 ready to pay the mixed money, according to the rate for which they were 
 current at the time of the tender. And this point was resolved on consid- 
 eration of two circumstances, namely, the time and the place of the payment ; 
 for the time is future, namely, that if the said Brett shall pay or cause to be 
 paid £100 sterling, current money, &c., and therefore such money shall be 
 paid as shall be current at such future time ; so that the time of payment, 
 and not the time of the contract, shall be regarded. Also, the future time 
 is intended by the words ' current money,' for a thing which is passed is not 
 
CHAP. IX.] MATTERS OF DEFENCE AND DISCHARGE. ' 523 
 
 § 391. A rule, somewhat more modified, has been promul- 
 gated in England, in respect to the drawee of a Bill of Ex- 
 
 in cursu; and therefore all the doctors who write de re nummaria, agree 
 in this rule, Verba currentis monetae tempus solutionis designant. And 
 to this purpose are several cases ruled in our books, 6 & 7 Ed. 6, Dyer, 
 81 b. After the fall and embasement of money, 5 Ed. 6, debt was brought 
 against the executors of lessee for years, for rent in arrear for two years, 
 ending Mich. 2 Ed. 6, at which time the shilling (which, at the time of the 
 action brought, was cried down to 6rf.) was current for lid., the defendants 
 pleaded a tender of the rent, on the days when it became due, in peciis 
 monets Angliae vocat. shillings, qualibet pecia vocat. shilling, adtunc solu- 
 bili pro Xid., and that neither the plaintiff nor any other for him was ready 
 to receive it, &c., and concluded, that they are still ready to pay the arrears, 
 in dictis peciis vocat. shillings, secundum ratam, &c. On this plea, although 
 the plaintiff demurred, yet he was content to take the money at the rate 
 aforesaid, without costs or damages. To the same purpose is the case of 
 Pollards, adjudged 29 Ed. 1, and reported by Dyer, 82 6, where, in debt on 
 an obligation for payment of £24, at two several days, the defendant pleads, 
 that at the days limited for payment of the debt in demand, currebat 
 quaedam moneta, qute voeabatur pollards, loco sterlingi, &c., and that the 
 defendant, at the first day of payment, tendered the moiety of the debt in 
 the money called pollards, which the plaintiff refused, and that he is still 
 ready, &c., and offered it in Court, which is not denied by the plaintiff; 
 Ideo concessum est, that he recover one moiety in pollards, and the other 
 in pure sterling money. See 9 Ed. 4, 49 a, a remarkable case on the 
 change of money, where it is said, that if a man, in an action of debt, de- 
 mands £40, it shall be intended money which is current at the time of the 
 writ purchased. And there a case in time of Ed. 1 is put, which is directly 
 to this purpose. In debt brought upon a deed for thirty quarters of barley, 
 price £20, it was found for the plaintiff, and the jury was charged to inquire 
 of the price at the time of the payment, and it was said, that, at the time of 
 the payment, a quarter was at 12s., but, at the time of the making of the 
 deed, it was only at 3s., and the plaintiff recovered £18 for the corn, ac- 
 cording to the price of it at the time of the payment. To this purpose, 
 also, Liu wood hath a notable gloss on the constitution of Simon Mepham, 
 lib. 3, de testamentis cap. Item quia. For where the constitution is such, 
 Pro publicatione testamenti pauperis, cujus inventarium bonorum non ex- 
 cedit centum solidos sterlingorum, nihil penitis exigatur, he maketh this 
 gloss; Hie solidus sumitur pro duodecim denariis Anglicanis, &c. Sed 
 qusero, saith he, numquid circa hos centum solidos debeat considerari valor 
 in moneta jam currente, vel valor sterlingorum, qui currebant tempore, 
 statuti ; and there he resolveth, Quod ubi dispositio surgit ex statute, ut hie, 
 licet moneta sit diminuta in valore, tamen debet considerari respectu 
 monetae novse currentis, et non respectu antiquse. Nam mutata moneta, 
 
524 PROMISSORY NOTES. [CHAP. IX 
 
 change, ■when drawn in England upon, and payable in, a 
 foreign country ; for, in such a case, it has been decided, 
 
 mutari videtur statutum, ut scilicet intellegatur de nova, et non de veteri. 
 See Regist. 50 a, and 54 6, where the king issues his writ, to be certified, of 
 the -value of a church ; the words of the writ are, Secundum taxationem 
 decim% jairi currentis. And 31 Ed. 3 Fitz. H. Annuity 86, an annuity was 
 granted to I. S. until he was promoted by the grantor to a sufficient bene- 
 fice. I. S. brings a writ of annuity against the grantor, who pleads, that he 
 had tendered to the plaintiff a sufficient benefice ; and there issue was takea 
 on the value of the benefice at the time of the tender." This case was com- 
 mented on by Sir William Grant, in delivering the judgment of the Privy 
 Council, in Pilkington' v. The Commissioners for Claims on France, 2 
 Knapp, 7, 18, 19; S. C, 2 Bligh, 98, note. On that occasion he said; 
 " Great part of the argument at the bar would undoubtedly go to show, that 
 the commissioners have acted wrong in throwing that loss upon the French 
 government in any case ; for they resemble it to a case of depreciation of 
 currency, happening between the time that a debt is contracted and the 
 time that it is paid ; and they have quoted authorities for the purpose of 
 showing, that, in such a case, the loss must be borne by the creditor, and 
 not by the debtor. That point it is unnecessary, for the present purpose, 
 to consider, though Vinnius, whose authority was quoted the other day, cer- 
 tainly comes to a conclusion directly at variance with the decision in Sir 
 John Davies's Reports. He takes the distinction, that, if between the time 
 of contracting the debt, and the time of its payment, the currency of the 
 country is depreciated by the State, that is to say, lowered in its intrinsic 
 goodness, as, if there were a greater proportion of alloy put into a guinea 
 or a shilling, the debtor should not liberate himself by paying the nominal 
 amount of his debt in the debased money ; that is, he may pay in the de- 
 based money, being the current coin, but he must pay so much more as 
 would make it equal to the sum he borrowed. But, he says, if the nominal 
 value of the currency, leaving it unadulterated, were to be increased, as, 
 if they were to make the guinea pass for 30s., the debtor may liberate him- 
 self from a debt of £l 10s. by paying a guinea, although he had borrowed 
 the guinea when it was but worth 21.s. I have said, it is unnecessary to 
 consider, whether the conclusion drawn by Vinnius, or the decision in Da- 
 vies's Reports, be the correct one ; for we think this has no analogy to the 
 case of creditor and debtor. There is a wrong act done by the French 
 government. Then they are to undo that wrong act, and to put the party 
 into the same situation as if they never had done it. It is assumed to be 
 a wrong act, hot only in the treaty but in the repealing decree. They jus- 
 tify it only with reference to that, which, as to this country, has a false 
 foundation ; namely, on the ground of what other governments had done 
 towards them ; they have confiscated the property of French subjects, 
 Jiherefore, they say, we thought ourselves justified, at the time, in retaliating 
 
CHAP. IX.] MATTERS OF DEFENCE ANO rftSCHAEGE. 525 
 
 that if, in the intermediate time between the drawing of the 
 Bill and the presentment thereof for acceptance, the coin or 
 
 upon the subjects of this country. That being destitute of foundation, 
 as to this country, the republic themselves, in effect, confess that no such 
 decree ought to hare been made, as it affected the subjects of this country. 
 Therefore, it is not merely the case of a debtor, paying a debt at the day it 
 falls due, but it is the case of a wrong-doer, who must undo, and completely 
 undo, the wrongful act he has done ; and, if he has received the assignats at 
 the value of 50d., he does not make compensation by returning an assignat 
 which is only worth 20d. ; he must make up the difference between the 
 value of the assignat at different periods. And that is the case stated by 
 Sir John Davies, where restitutio in integrum is stated. He says, two 
 cases were put by the judges, who were called to the assistance of the 
 Privy Council, although they were not positively and formally resolved. 
 He says, it is said, if a man upon marriage receive £1,000, as a portion 
 with his wife, paid in silver money, and the marriage is dissolved, causa 
 precontractus, so that the portion is to be restored, it must be restored in 
 equal good silver money, though the State shall have depreciated the cur- 
 rency in the mean time. So, if a man recover £100 damages, and he levies 
 that in good silver money, and that judgment is afterwards reversed, by 
 which the party is put to restore back all he has received, the judgment- 
 creditor cannot liberate himself by merely restoring £lOO in the debased 
 currency of the time ; but he must give the very same currency that he had 
 received. That proceeds upon the principle, that, if the act is to be undone, 
 it must be completely undone, and the party is to be restored to the situa- 
 tion in which he weis at the time the act to be undone took place. Upon 
 that principle, therefore, undoubtedly, the French government, by restor- 
 ing assignats at the end of thirteen months, did not put the party in the 
 same situation in which he was when they took from him assignats that 
 were of a very different value." Lord Eldon, in delivering his opinion in 
 the case of Cockerell v. Barber, 16 Ves. 461, 465, evidently supported the 
 doctrine of the judges, in the case reported in Davies's Reports. On that 
 occasion he said : " In all the cases reported upon the wills of persons, in 
 Ireland or Jamaica, and dying there (and vice versa in this country), some 
 legacies being expressed in money sterling, others in sums without reference 
 to the nature of the coin in which they are to be paid, the legacies are 
 directed here to be computed according to the value of the currency of the 
 Country to which the testator belonged, or where the property was ; and I 
 apprehend no more was done in such cases than ascertaining the value of so 
 many pounds in the current coin of the country, and paying that amount out 
 of the funds in Court. On the other hand, I do not believe the Court have 
 ever said they would not look at the value of the current coin^ but would 
 take it as bullion. At the time of Wood's half-pence \n Ireland, whatever 
 was their actual worth, yet payment in England must have been according 
 
526 PROMISSORY NOTES. [CHAP. IX. 
 
 currency is depreciated by the foreign sovereign, the Bill 
 ought to be accepted and paid, not in the current value at 
 the time of the acceptance or maturity of the Bill, but in the 
 true value at the time when the Bill was drawn. Thus, 
 where a Bill was drawn in England, upon the drawees, who 
 resided in Portugal, for 1,000 millrees, payable in thirty days 
 after sight ; and after the Bill was drawn the king of Portu- 
 gal had lessened the value of the millrees J620 per cent, 
 and the Bill was presented to the drawees for acceptance, 
 with the advance of the .£20 per cent, and the drawees 
 refused acceptance, unless to pay at the current value, and 
 thereupon the Bill was protested ; upon a suit brought in 
 England, against the drawer, to recover the amount, it was 
 held, that the Bill ought to be paid according to the ancient 
 value, or with the advance of £20 per cent, and not ac- 
 cording to the current value at the time when the Bill became 
 payable.^ 
 
 ^ 392. Now, this decision was necessarily made upon the 
 
 to their nominal current value, not the actual value. So, whatever was the 
 current value of the rupee, at the time when this legacy ought to be paid, 
 is the ratio, according to which payment must be made here in pounds ster- 
 ling. If twelve of Wood's half-pence were worth sixpence in this Court, 
 sixpence must have been the sum paid ; and, in a payment in this Court, 
 the cost of remittance has nothing to do with it. So, if the value of 30,000 
 rupees, at the time, the payment ought to have been made in India, was 
 £10,000 pounds, that is the sum to be paid here, without anj consideration 
 as to the expense of remittance." See also Story on Conflict of Laws, 
 §§ 312, 313 a; Story on Bills, § 163; Warder v. Arell, 2 Wash. Va. 359, 
 383 ; Searight v. Calbraith, 4 Dall. 325 ; Bartsch v. Atwater, 1 Conn* 
 409; Anon. 1 Brown, Ch. 376. 
 
 ' Du Costa V. Cole, Skinn. 272; Chitty on Bills, ch. 9, p. 433 (8th edit). 
 The decision seems to have been made at Nisi Prius by Lord flolt, who, 
 upon that occasion, said : " That here there not being notice, the Bill ought 
 to be paid according to the ancient value, for the King of Portugal may not 
 alter the property of a subject of England ; and therefore this, case differs 
 from the case of Mixed Moneys, in Davies's Reports ; for there the al- 
 teration was by the King of England, who has such a prerogative, and this 
 shall bind his own subjects." In this case he also held the protest to be an 
 evidence, prima facie, that the Bill was not accepted, and sufficient to put 
 the proof on the other side. 
 
CHAP. IX.] MATTERS OF DEFENCE AND DISCHARGE. 527 
 
 supposition that tlie drawees were bound to accept and pay 
 the £20 per cent advance ; for, otherwise, there would have 
 been no default on their part, and no liability on the part of 
 the drawer for the supposed dishonor. It would certainly 
 be difficult to sustain this decision upon the principles of in- 
 ternational jurisprudence, recognized in our day in England 
 and America ; for, where a Bill is drawn upon a foreign 
 country, payable in the currency of that country, it is payable 
 in that currency at its true value at the maturity of the Bill, 
 and not at the time when the Bill is drawn.^ Pardessus, 
 however, has, as we shall presently see, arrived at the con- 
 clusion that the law of the place of payment is to govern ; 
 and yet he concurs in the doctrine asserted in the case before 
 Lord Holt.2 
 
 § 393. The question, whether, if the value of the money 
 is increased or diminislied between the time of making the 
 contract and the time when it is payable, the payment ought 
 to be made according to the value at the time of the contract, 
 or at the time when it is payable, has been much discussed 
 by foreign jurists, and they are not agreed in opinion. Mo- 
 linaeus (Dumoulin), Hotomannus, and Donellus contend, 
 that the value of the money at the time of the contract, and 
 not at the time when it is payable, ought to be the governing 
 rule. Thus, for example, if 100 pieces of gold are borrowed, 
 when they are worth 50 asses, and they are to be repaid at a 
 future day, when they are worth 55 asses, the debtor is to 
 pay to the creditor only 90 pieces of gold, or, for every piece 
 of gold, 50 asses ; but if, in the interval, the value has been 
 diiainished to the same extent, then the debtor is bound to 
 pay 110 pieces of gold, or, for every piece of gold, 55 asses. 
 Bartolus, Baldus, and Castro, on the contrary, are of opinion, 
 that the value at the time when the money is payable ought, 
 to be the rule ; that is, the value of the money being either 
 increased or diminished, that amount in value ought to be 
 
 ' Story on Conflict of Laws, §§ 312, 313 a, 313 J, 317. 
 ' Post, § 395 ; Pardessus, Droit Comm. Tom. 5, art. 1495. 
 
528 fBOMISSORY NOTES. [CHAP. IX. 
 
 paid which is the value, not when borrowed, but when it is 
 payable ; and they say that no other rule can be adopted 
 'without injury to the creditor, or the debtor. Vinniu.s says, 
 that he deems this latter opinion to be the truer and more 
 equitable one ; " Quae sententia, ut mihi videtur, et verior et 
 ssquior est." But he goes on to state, that, if the true rule 
 be, that neither the creditor nor the debtor should suffer any 
 injury, then, if the intrinsic goodness of the money is 
 changed, we should look to the time of the making of the 
 contract ; but, if the extrinsic value only is changed, then we 
 should look to the time when the money is payable. And he 
 adds, that this has been very often adjudged.^ 
 
 ' We have just seen, in the quotation of the opinion of Sir Wilh'am 
 Grant, cited in the note to a preceding section (§ 391), how he understands 
 the opinion of Vinnius. But, perhaps, from the language used by him, he 
 did not mean to express an absolute opinion on the point ; and it is not 'a 
 little difficult to feel the value of the distinction between a depreciation of the 
 value of the coin of currency by adulteration, and depreciation by lowering 
 the market value, as currency, without adulteration. The whole passage 
 of Vinnius is as follows : " Atque hinc pendet decisio nobilissimse quEestionis, 
 si post contractum aestimatio nummorum creverit aut decreverit, utrum in 
 solutione facienda spectare oporteat valorem, quern habebant tempore con- 
 tractus, an qui nunc est tempore solutionis ; intellige si nihil, de ea re ex- 
 presse dictum sit, neque mora intervenerit. Molinseus, Hotomannus, Donel- 
 lus contendunt, tempus contractus inspiciendum esse, id est, ea Eestimatione 
 nummos reddendos, non quae nunc est, sed quae initio fuit, cum dabantur. 
 Nimirum nihil illi in pecunia numerata praeter aestimationem considerandum 
 putant, totamque nummi bonitatem in hac ipsa aastimatione consistere : ac pro- 
 inde creditori non facere injuriam ; qui eandem xstimationem, quam accepit, 
 reddit : tantum enim reddere eum, quantum accepit, quod ad solutionem 
 mutui sit satis. Itaque secundum horum sententiam, si 100. aurei mutuo 
 dati sint, cum aureus valebat asses 50. reddantur autem, cum singuli valent 
 asses 55. debitor reddens creditori aureos 90. aut in singulos aureos 50. 
 asses reddit, quantum accepit, et liberatur : et vicissim si imminuta sit ad 
 eundem modum aureorum aestimatio, non liberatur, nisi reddat aureos 110. 
 aut in singulos aureos asses 55. Bartolus vero (in 1. Paulus. 101. de solut). 
 Baldus (in 1. res in dotem. 24. de jur. dot.). Castro (in lib. 3. de reb. cred.), 
 et DD. comm. ut videre est apud Boer, decis. 327. contra censent, spectan- 
 dum esse in proposito tempus solutionis, id est, aucto vel deminuto nummo- 
 rum valore, ea aestimatione reddi eos dportere, non quae tunc fuit, cum 
 dabantur, sed quae nunc est, cum solvuntur ; neque aliud statui posse sine 
 
CHAP. IX.] MATTERS OF DEFENCE AND DISCHARGE. 529 
 
 § 394. Pottier maintains tlie opinion, that the value at the 
 time when the money is payable is the rule which ought to 
 govern, whatever may have been in the intermediate time 
 
 creditoris aut debitoris injuria. Quae sententla, ut mihi videtur, et verier 
 et aequiorest. Nam quod contrariae sententiae auctores unicum urgent, in 
 nummis non materiae, sed solius sestimationis imposititiEe atque externse> 
 quam ob id vulgo extrinsecam nummi bonitatem Tocant, rationem duci, 
 nummumque nihil aliud esse, quam quod publico valet, vereor, ut simpliciter 
 verum sit. Utique enim materia numismatis fundamentum est et causa 
 valoris : quippe qui variatur pro diversitate materiae : oportetque valorem 
 hune justa aliqua proportione materiae respondere : neque in bene consti- 
 tuta repub. nummo ea xstimatio imponi debet, quae pretium materiae, ex 
 qua cuditur, superat, aut superet ultra modum expensarum, quae in sig- 
 nandapecunia fiunt; quod ad singularum specierum valorem parum addere 
 potest. Sed hoc ad actus et prsestationes privatorum non pertinet. Illud 
 pertinet, quod si dicimus, creditis nummis nihil praeter aestimationem eorum 
 creditum intelligi, necessario sequitur, creditorem teneri in alia forma aut 
 materia nummos accipere confra definitionem Pauli in D. 1. 99. de solut. 
 etiamsi damnum ex eo passurus sit : nam, qui recipit, quod credidit, nihil 
 habet, qiiod conqueratur, Sequitur, et hoc, si contingat mutari nummorum 
 bonitatem intrinsecam, id est, si valore veteri retentio percutiantur novi 
 nummi ex deteriore materia, quam ex qua cusi, qui dati sunt, puta, si qui 
 dati sunt, cusi fuerint ex puro auro, postea alii feriantur ex auro minus 
 puro et mixto ex aere, debitorem restituendo tot mixtos ex contaminates, 
 quot ille puros aceepit, liberari cum insigni injuria creditoris i et contra in- 
 terpp. pene omnium doctrinam, qui hoc casu solutionem faciendam esse 
 statuunt ad valorem intrinsecum monetae, qui currebat tempore contractus, 
 testibus Gail. 2, obs. 73, n. 6 & 7. Boreholt. de feud. ad. cap. un. quae sunt 
 regal, num. 62. Illud enim maxime in hac disputatione'considerandum est, 
 quoniam hie finis nummi principalis est, ut serviat rebus necessariis comparan- 
 dis, auctore Aristotele 1. Polit. 6. quod mutata monetffi bonit'ate sive extrin- 
 seca, sive intrinseca, pretia rerum omnium mutentur, et pro modo auctae aut: 
 imminutae bouitatis nummorum crescant aut decrescant ; quod ipsa docet 
 experientia : eoque faeit 1. 2. C. de vet. num. pot. lib. 11. Crescunt rerum 
 pretia, si deterior materia electa, aut manente eadem materia valor auctus 
 sit : decrescant electu materise melioris, aut si eadem bonitate materiae 
 manente valor imminutus fuerit. Fallitur enim imperitum vulgus, dum 
 sibi j^rsuadet, ex augmento valoris aurei aliquid sibi lucri accedere. Hoe 
 autem fundamento posito, siquldem neutri contrahentium injuriam fieri 
 volumus, ita definieadum videtul-, lit si bonitas monetse intrinseca mutata 
 sit, tempus contractus si extrinseca, id est, valor imposititius, tempus solu- 
 tionis in solutione facienda spectari debeat. Atque ita saepissimfe judicatum 
 est." Vinn. Ad. Inst. Lib. 3 tit. 15, § De Mutuo, n. 12. 
 34 
 
530 PBOMIS'SOKY NOTES. [CHAP. IX. 
 
 between the making of the contract and th» time when 
 it is payable, the increase or diminution of the value of 
 the money. The reason, he says, is that, in money, we 
 do not regard the coins which constitute it, but only the 
 value which the sovereign has been pleased that they shall 
 signify.^ 
 
 § 395. Pardessus has inculcated a different doctrine, hold- 
 ing it equally applicable to cases of debts upon negotiable 
 instruments as well as to other contracts and debts. Ac- 
 cordingly he says, that where payment is stipulated to be 
 made in the money of a foreign country, and in the interval 
 between the date of the contract and the time of the payment 
 thereof, the money of that country has undergone variation 
 in its nominal value, if the contract is made exclusively be- 
 
 • Pothier, De Vente, n. 41 6 ; Story on the Conflict of Laws, § 31 3 6. The 
 remarks of Pothier, on this subject, are given in a passage where he sup- 
 poses the seller of an estate has reserved a right to redeem the same, upon 
 paying back the price ; and the point is, whether he must, upon the re- 
 demption, pay back the value of the money at the time of the original 
 contract, or at the time of the redemption. His language is : " It remains 
 to be observed, in regard to the price, that it may be rendered in a money 
 different from that in which it is paid. If it as paid to the seller in gold, 
 the seller may repay it in pieces of silver, or vice versa. In like manner, 
 though, subsequent to the payment of the price, the pieces in which it is 
 paid are increased or diminished in value ; though they are discredited, 
 and, at the time of the redemption, their place is supplied by new ones of 
 better or worse alloy ; the seller, who exercises the redemption, ought to 
 repay in money, which is current at the time he redeems, the same sum or 
 quantity which he received in payment, and nothing more nor less. The 
 reason is, rthat, in money, we do not regard the coins which constitute it, but 
 only the value which the sovereign has been pleased that they shall signify : 
 Eaque materia forma publica percussa, usum dominiumque non tam ex sub- 
 stantia prsebet, quam ex quantiate ; D. 18, 1, 1. When the price is paid, 
 the seller is not considered to receive the particular pieces, so much as the 
 sum or value which they signify ; and, consequently, he ought to repay, 
 and it is sufficient for him to repay the same sum or value in pieces which 
 are current, and which have the signs, authorized by the prince, to signify 
 that value. This principle being well established in our French practice, 
 it is sufficient merely to state it. It cuts off all the questions made by the 
 doctors concerning the changes of money." 
 
CHAP. IX.] MATTERS OF DEFENCE AND DISCHARGE. 631 
 
 tween subjects of that country, it may bind them to pay only 
 according to the value fixed by the laws thereof ; but that, if 
 either party be a subject of another country, the rule is other- 
 vise, and that payment is to be made, not according to the 
 value of the money at its legal denomination, either at the 
 time of the contract, or of the payment, but according to its 
 intrinsic value. Thus, he puts the case of a contract in 
 Spain between a Spaniard and a Frenchman, for the payment 
 of 500 piastres at a future day ; and he affirms, that in such 
 a case the Frenchman would be entitled to receive the 
 amount in piastres of a certain weight, and containing a 
 certain quantity of silver and a certain quantity of alloy, and 
 that, although an offer to pay the sum in Spain in paper 
 money, stamped as good for that sum, would be there held 
 valid, yet it would be held bad in France if the contract was 
 sued upon in that country. The reason he gives is, that the 
 Frenchman must be presumed to intend to employ his money 
 out of Spain, where the stamped paper money would be with- 
 out value.^ Pardessus adds, that the same rule is applicable 
 to negotiable paper ; so that, if the money is payable in Spain, 
 and payment can be there obtained only in a depreciated 
 currency (as if it be lowered in value 20 per cent), the 
 holder is not bound to receive it at that rate, as a full satis- 
 faction ; but if he does receive the depreciated currency, he 
 may have recourse over against the prior parties, who have 
 transferred the negotiable paper to him for the diiference be- 
 tween the original and the nominal value. Yet, almost in 
 the same breath, he arrives at; he conclusion, that it neces- 
 sarily results from what he has thus stated, that the law of 
 the place where the payment is to be made is the rule to 
 govern in all cases of ofiers of payment and of deposits.^ The 
 distinction here taken by Pardessus seems as little reconcil- 
 able .with any sound interpretation of the principles of in- 
 ternational law, as any which could well be propounded, 
 
 ' Pardessus, Droit Comm. Tom. 5, art. 1495. 
 ' Ibid. ; ante, § 392 ; Story on Bills, § 418. 
 
532 PROMISSOEY NOTES. £CHAP. IX. 
 
 and it stands unsupported by any of the foreign jurists whose 
 opinions we have been considering.^ 
 
 § 396. But other questions of great practical importance 
 may arise, and indeed do arise, in which the operation of the 
 Lex Loci Contractus enters as a material ingredient in the 
 ascertainment of what is a due and sufficient payment of the 
 Note. Thus, where a contract is made in one country, and 
 is payable in the currency of that country, and a suit is after- 
 wards brought in another country to recover for a breach of 
 the contract, a question often arises, as to the manner in 
 which the amount of the debt is to be ascertained, whether 
 at the nominal or established par value of the currencies of 
 the two countries, or according to the rate of exchange at 
 the particular time existing between them. In all cases of 
 this sort, the place where the money is payable, as well as 
 the currency in which it is promised to be paid, are (as we 
 shall presently see) material ingredients.^ For instance, a 
 debt of £100 sterling is contracted in England, and is pay- 
 able there ; and afterwards a suit is brought in America for 
 the recovery of the amount. The present, par fixed by law 
 between the two countries is, to estimate the pound sterling 
 at four dollars and forty-four cents.^ But the rate of ex- 
 change, on Bills drawn in America on England, is generally 
 at from eight to ten per cent advance on the same amount. 
 In a recent case, it was held by the King's Bench, in an ac- 
 tion for a debt, payable in Jamaica, and sued in England, 
 that the amount should be ascertained by adding the rate of 
 
 V See Story on the Conflict of Laws, §§ 265, 272 a, 308, 309, 310, 312, 
 313 a ; Anon. 1 Brown, Ch. 376. 
 
 ' Story on the Conflict of Laws, §§ 308, 310 ; post, § 398. 
 
 ' This is the par for ordinary commercial purposes. But by the act of 
 Congress of 1832j ch. 224, § 16, the par, for the purpose of estimating the 
 value of goods, paying an ad valorem duty, and for that purpose only, is 
 declared to be to estimate a pound sterling at four dollars and eighty cents. 
 The still more recent Act of 27th of July, 1842, ch. 66, fixes the par at 
 four dollars and eighty-four cents for the pound sterling, in all payments by 
 and to the Treasury of the United States, and in appraising merchandise 
 imported where the value is by the invoice in pounds sterling. 
 
CHAP. IX.] MATTERS OF DEFENCE AND DISCHARGE. 533 
 
 exchange to the par value, if above it ; and so, vice versa, by 
 deducting it, when the exchange is below the par.^ Perhaps 
 it is difficult to reconcile this case with the doctrine of some 
 other cases.2 In a late American case, where the payment 
 was to be in Turkish piastres (but it does not appear from 
 the report, where the contract was made, or was made pay- 
 able), it was held to be the settled rule, where money is the 
 object of the suit, to fix the value according to the rate of 
 exchange at the time of the trial .^ It is impossible to say, 
 that a rule laid down in such general terms ought to be 
 deemed of universal application ; and cases may easily be 
 imagined, which may justly form exceptions. 
 
 § 397. The proper rule would seem to be, in all cases, to 
 allow that sum in the currency of the country, where the suit 
 is brought, T)?hich should approximate most nearly to the 
 amount to which th^e party is entitled in the country where 
 the debt is payable, calculated by the real par, and not by 
 the nominal par, of exchange.* This would seem to be the 
 
 ' Scott u. Bevan, 2 B. & Ad. 78. Lord Tenterden, in delivering the 
 opinion of the Court in favor of the rule, said : " Speaking for myself, per- 
 sonally, I must say, that I still hesitate as to the propriety of the conclu- 
 sion." See Delegal v. Naylor, 7 Bing. 460 ; Ekins v. East India Company, 
 1 P. Will. 396. 
 
 ' See Cockerell o. Barber, 16 Ves. 461 ; Story on the Conflict of Laws, 
 §§ 308, 312. 
 
 ' Lee V. Wilcoeks, 5 S. & R. 48. It is probable, that in this case the 
 money was payable in Turkey ; Story on the Conflict of Laws, § 308. 
 
 * In Cash V. Kennion, 11 Ves. 314, Lord Eldon held, that if a man in a 
 foreign country agrees to pay £100 in London, upon a given day, he ought 
 to have that sum there on that day. And if he fails in that contract, where- 
 ever the creditor sues him, the law of that country ought to give him just 
 as much as he would have had if the contract had been performed. J. 
 Voet says : " Si major, alibi minor, eorundem. nummorum valor sit, in solu- 
 tione faciendS; non tarn spectanda potestas pecunise, quEe est in loco, in 
 quo contractus celebratus est, quam potius quae obtinet in regione ills ; in 
 qua contractus, implementum faciendum est." Voet, Ad. Pand. Lib. 12, tit. 
 1, § 25 ; Henry on Foreign Law, 43, note. See also Story on the Conflict 
 of Laws, §§ 281, 309 ; 3 Burge, Comm. on Col. and For. Law, Pt. 2, ch. 20, 
 pp. 771-773. 
 
534 PEOMISSOEY NOTES. [CHAP. IX. 
 
 rule, also, which is adopted by foreign jurists.^ In some 
 countries there is an established par of exchange by law, as 
 in the United States, where the pound sterling of England is 
 now valued at four dollars and forty-four cents for all pur- 
 poses, except the estimation of the duties on imported goods 
 paying ad valorem, duty.^ In other countries the original 
 par has, by the depreciation of the currency, become merely 
 nominal ; and, there, we should resort to the real par. 
 Where there is no established par from any depreciation of 
 the currency, there, the rate of exchange may justly furnish 
 a standard, as the nearest approximation of the relative value 
 of the currencies. And where the debt is payable in a par- 
 ticular known coin, as in Sicca rupees, or in Turkish pias- 
 tres, there the mint value of the coin, and not the mere bul- 
 lion value in the country where the coin is issued, would 
 seem to furnish the proper standard, since it is referred to 
 by the parties in their contract by its descriptive name as 
 coin.* 
 
 § 398. But, in all these cases, we are to take into consid- 
 eration the place where the money is, by the original con- 
 tract, payable ; for wheresoever the creditor may sue for it, 
 he is entitled to have an, amount equal to what he must pay, 
 in order to remit it, to that country.* Thus, if a Note were 
 made in England, for £100 sterling, payable in Boston 
 (Mass.), if a suit were brought in Massachusetts, the party 
 would be entitled to recover four hundred and forty-four 
 dollars and forty-four cents, that being the established par of 
 exchange by our laws. But if our currency had become 
 depreciated by a debasement of our coinage, then the. depre- 
 ciation ought to be allowed for, so as to bring the sum to the 
 real par, instead of the nominal par.^ But, if a like Note 
 
 ' Story on the Conflict of Laws, § 281. 
 ' Ibid., § 308, note 2. 
 ' Ibid., § 309. 
 
 ' See 1 Chitty on Comm. and Manufact. eh. 12, pp. 650, 651. See Story 
 on the Conflict of Laws, §§ 281, 308, 310. 
 ' Paul Voet has expressed an opinion upon this subject in general terms : 
 
CHAP. IX.] MATTERS OF DEFENCE AND DISCHARGE. 535 
 
 were given in England for £100, payable in England, or pay- 
 able generally (which in legal effect would be the same 
 thing), there, in a suit in Massachusetts, the party would be 
 entitled to recover, in addition to the four hundred and 
 forty-four dollars and forty-four cents, the rate of exchange 
 between Massachusetts and England, which is ordinarily from 
 eight to ten per cent above par. And, if the exchange were 
 below par, a proportionate deduction should be made, so that 
 the party would have his money replaced in England at 
 exactly the same amount which he would be entitled to 
 recover in a suit there.^ 
 
 § 399. Tliis distinction may, perhaps, reconcile some of 
 the cases, between which there might seem, at first view, to be 
 an apparent contrariety. It was evidently acted on in an old 
 case, where money, payable in Ireland, was sued for in Eng- 
 land ; and the Court allowed Irish interest, but directed an 
 allowance to the debtor for the payment of it in England, and 
 not in Ireland.^ It is presumable that the money was of less 
 value in Ireland than in England. A like rule was adopted 
 in a later case, where money payable in India was recovered 
 in England ; and the charge of remitting it from India was 
 directed to be deducted.^ 
 
 " Quid, si in specie de nummorum aut redituum solutione difficultas incidat, 
 si forte valor sit immutatus ; an spectabitur loci valor, ubi contractus erat 
 celebratus, an loci, in quern destinata erat solutio ? Respondio ex general! 
 regula, spectandum esse loci statutum, in quern destinata erat solutio." P. 
 Voet, De Stat. § 9, ch. 2, §• 15, p. 271 ; Id. p. 328, edit. 1661. And 
 he applies the same rule, where contracts are for specific articles, the meas- 
 ures whereof are different in different countries. Id. § 16, p. 271; Id. 
 p. 328, edit. 1661. 
 
 ' Story on the Conflict of Laws, § 310. 
 
 * Dungannon v. Hackett, 1 Eq. Cas. Abr. 288, 289. 
 
 = Ekins V. The East India Company, 1 P. Will. 396 ; S. C, 2 Bro. Par. 
 Cas. 72, edit. Tomlins; Story on the Conflict of Laws, §§ 308-311. The 
 American authorities upon the points stated in these four last sections are 
 not in entire harmony with each other. They underwent a full discussion, 
 and were commented upon in the recent case of Grant v. Healey, 3 Sum- 
 ner, 523 ; S. C, 2 Law Rep. 113. On that occasion the Judge, who deliv- 
 ered the opinion of the Court, said : " I take the general doctrine to be 
 
536 PEOMISSOEY NOTES. [CHAP. IX. 
 
 § 400. Hitherto we have been principally considering, how 
 and in what manner payment is to made by the maker of the 
 
 clear, that, whenever a debt ia made payable ia one country, and it is after- 
 wards sued for in another country, the creditor is entitled to receive the 
 full sum necessary to replace the money in the country where it ought to 
 have been paid, with interest for the delay ; for then, and then only, is he 
 fully indemnified for the violatipn of the contract. In every such case, the 
 plaintiff is, therefore, entitled to have the debt due to him first ascertained 
 at the par of exchange between the two countries, and then to have the 
 rate of exchange between those countries added to, or subtracted from, the 
 amount, as the case may require, in order to replace the money in the 
 country where it ought to be paid. It seems to me, that this doctrine is 
 founded on the true principles of reciprocal justice. The question, there- 
 fore, in all cases of this sort, where there is not a known and settled cdm- 
 mercial usage to govern them, seems to me to be rather a question of fact 
 than of law. In cases of accounts and advances, the object is to eiscertain, 
 where, according to thfe intention of the parties, the balance is to be repaid. 
 In the country of the creditor, or of the debtor ? In Lanusse v. Barker, 3 
 Wheat. 101, 147, the Supreme Court of the United States seem to have 
 thought, that, where money is advanced for a person in another State, the 
 implied understanding is to replace it in the country where it is advanced, 
 unless that conclusion is repelled by the agreement of the parties, or by 
 other controlling circumstances. Governed by this rule, the money being 
 advanced in Boston, so far as it was not reimbursed out of the proceeds of 
 the sales at Trieste, would seem to be proper to be repaid in Boston. In 
 relation to mere balances of account between a foreign factor and a home 
 merchant, there may be more difficulty in ascertaining where the balance 
 is reimbursable, whether where the creditor resides, or where the debtor 
 resides. Perhaps it will be found, in the absence of all controlling circum- 
 stances, the truest rule and the easiest in its application, that advances 
 ought to be deemed reimbursable at the place where they are made, and 
 sales of goods accounted for at the place where they are made, or author- 
 ized to be made. Thus, if a consignment is made in one country for sales 
 in another country, where the consignee resides, the true rule would seem 
 to be, to hold the consignee bound to pay the balance there, if due from 
 him ; and if due to him, on advances there made, to receive the balance 
 from the consignor there. The case of Consequa v. Fanning, 3 John. Ch. 
 587, 610, which was reversed in 17 John. 511, proceeded upon this intel- 
 ligible ground, both in the Court of Chancery, and in the Court of Errors 
 and Appeals, the difference between these learned tribunals not being so 
 much in the rule as in its application to the circumstances of that particular 
 case. I am aware that a different rule, in respect to balances of account, 
 and debts due and payable in a foreign country, was laid down in Martin 
 V. Franklin, 4 John. 125, and Scofield v. Day, 20 John, 102 ; and that it 
 
CHAP. IX.] MATTERS OF DEFENCE AND DISCHARGE. 537 
 
 Promissory Note, and the circumstances under which it will 
 be a due and full discharge and extinguishment of the debt. 
 
 has been followed by the Supreme Court of Massachusetts, in Adams v. 
 Cordis, 8 Pick. 260. See Alcoefc v. Hopkins, 6 Cush. 493. It is with un- 
 affected diffidence, that I venture to express a doubt as to the correctness 
 of the decisions of these learned courts upon this point. It appears to me, 
 that the reasoning in 4 John. 125, which constitutes the basis of the other 
 decisions, is far from being satisfactory. It states very properly, that the 
 Court have nothing to do with inquiries into the disposition which the 
 creditor may make of his debt, after the money has reached his hands ; and 
 the Court are not to award damages upon such uncertain calculations, as 
 to the future disposition of it. But that is not, it is respectfully submitted, 
 the point in controversy. The question is, whether, if a man has under- 
 taken to pay a debt in one country, and the creditor is compelled to sue 
 him for it in another country, where the money is of less value, the loss is to 
 be borne by the creditor, who is in no fault, or by the debtor, who, by the 
 breach of this contract, has occasioned the loss. The loss, of which we here 
 speak, is not a future contingent loss. It is positive, direct, immediate. 
 The very rate of exchange shows, that the very same sum of money, paid 
 in one country, is not an indemnity or equivalent for it, when paid in an- 
 other country, to which, by the default of the debtor, the creditor is bound 
 to resort. Suppose a man undertakes to pay another $10,000 in China,, 
 and violates his contract ; and then he is sued therefor in Boston, when the 
 money, if duly paid in China, would be worth, at the very moment, 20 per 
 cent more than it is in Boston ; what compensation is it to the creditor to 
 pay him the $10,000 at the par in Boston ? Indeed, I do not perceive any 
 just foundation for the rule, that interest is payable according to the law of 
 the place where the contract is to be performed, except it be the very 
 same on which a like claim may be made as to the principal, viz. that the 
 debtor undertakes to pay there, and therefore is bound to put the creditor 
 in the same situation as if he had punctually complied with his contract 
 there. It is suggested that the case of Bills of Exchange stands upon a 
 distinct ground, that of usage ; and is an exception from the general doc- 
 trine. I think otherwise. The usage has done nothing more than ascer- 
 tain what should be the rate of damages for a violation of the contract gen- 
 erally, as a matter of convenience and daily occurrence in business, rather 
 than to have a fluctuating standard, dependent upon the daily rates of 
 exchange ; exactly for the same reason, that the rule of deducting one 
 third new for old is applied to cases of repairs of ships, and the deduction 
 of one third from the gross freight is applied in cases of general average. 
 It cuts off all minute calculations and inquiries into evidence. But in cases 
 of Bills of Exchange, drawn between countries where no such fixed rate of 
 damages exists, the doctrine of damages, applied to the contract, is precisely 
 that which is sought to be applied in the case of a common debt due and 
 
538 PBOMISSOEY NOTES. [CHAP. IX. 
 
 But there may have been a dishonor on the part of the maker, 
 and the payment may have been made by a prior indorser to 
 the holder ; and then it is obvious that such a payment, if 
 duly and properly made, will not ordinarily discharge the 
 Note, but it will simply reinstate 'such indorser in all his 
 original rights against the antecedent parties thereon. If, in- 
 deed, any of those parties, either as maker or indorser, be 
 such merely for his accommodation, then his claim is ended ; 
 for the payment has been already made by the very party 
 
 payable in another country ; that ia to say, to pay the creditor the exact 
 sum which he ought to have received in that country. That is sufficiently 
 clear from the case of Mellish v. Simeon, 2 H. Black. 378, and the whole 
 theory of re-exchange. My brother, the late Mr. Justice Washington, in 
 the case of Smith v. Shaw, 2 Wash. 167, 168, in 1808, which was a suit 
 brought by an English merchant on an account for goods shipped to the 
 defendant's testator, where the money was doubtless to be paid in England, 
 and a question was made, whether, it being a sterling debt, it should be 
 turned into currency at the par of exchange, or at the then rate of ex- 
 change, held, that the debt was payable at the then rate of exchange. To 
 which Mr. IngersoU, at that time one of the ablest and most experienced 
 lawyers at the Philadelphia bar, of counsel for the defendant, assented. 
 It is said, that the point was not started at the argument, and was settled 
 by the Court suddenly, without advancing any reasons in support of it. I 
 cannot but view the ■ case in a very different light. The point was cer- 
 tainly made directly to the Court, and attracted its full attention. The 
 learned judge was not a judge accustomed to come to sudden conclusions, 
 or to decide any point which he had not most scrupulously and deliberately 
 considered. The point was probably not at all new to him ; for it must 
 frequently have come under his notice in the vast variety of cases of debts 
 due on account by Virginia debtors to British creditors, which were sued 
 for during the period in which he possessed a most extensive practice at 
 the Kichmond bar. The circumstance, that so distinguished a lawyer as 
 Mr. IngersoU assented to the decision, is a further proof to me that it had 
 been well understood in Pennsylvania to be the proper rule. If, indeed, 
 I were disposed to indulge in any criticism, I might say, that the cases in i 
 John. 125, and 20 John. 101, 102, do not appear to have been much argued 
 or considered ; for no general reasoning is to be found in either of them 
 upon principle ; and no authorities were cited. The arguments and the 
 opinions contain little more than a dry statement and decision of the point. 
 The first and only case in which the question seems to have been consid- 
 ered upon a thorough argument, is that in 8 Pick. 260. I regret that I am 
 not able to follow its authority with a satbCed assent of mind." 
 
CHAP. IX.] MATTERS OF DEFKNCE AND DISCHARGE. 539 
 
 who is ultimately bound to indemnify and reimburse all the 
 others ; and the law, to avoid circuity of action, will treat it 
 as a direct extinguishment.^ 
 
 § 401. In respect to indorsees, also, another material con-* 
 sideration is to be borne in mind. When payment or satis- 
 faction is duly made by any indorser to the holder, he will 
 still retain his right to recover over against all the antecedent 
 parties upon the Note (not being parties for his accommoda- 
 tion), until he has received a full indemnity. But, by such 
 payment or satisfaction, the Note will be effectually dis- 
 charged, as to all the subsequent indorsers, as well against 
 the holder as against himself, so that neither can sue there- 
 on; not the holder, for he has already received payment; 
 and not such prior indorser, so paying, even if the Note were 
 indorsed to him in blank by the holder, for he himself is, as 
 to all the subsequent indorsers, the very party bound to in- 
 demnify them ; and, therefore, to avoid circuity of action, the 
 ' law deems the Note extinguished, as to the latter.^ 
 
 § 402. In the next place, as to the satisfaction of a Note, 
 otherwise than by payment, strictly so called. Generally 
 speaking, whatever is a satisfaction as to the maker of the 
 Note is a satisfaction as to all the other parties thereto, who 
 are collaterally liable.^ Therefore, credit given by the maker 
 of a Note (being the party ultimately liable) to the holder, 
 with his consent, is tantamount to payment ; but not credit 
 by any party not ultimately liable.* So, satisfaction made 
 by one partner of a firm, which are either the makers or the 
 indorsers of a Note, will discharge all the partners. The 
 same rule will apply, where a person is a partner in two 
 firms, one of which are the makers and the other the indors- 
 
 ' Story on Bills, §§ 421, 422, 425 ; Sargent v. Appleton, 6 Mass. 85, 88. 
 
 ' Bayley on Bills, ch. 9, p. 345 (5tli edit.) ; Smith v. Knox, 3 Esp. 46 ; 
 English V. Darley, 2 Bos. & Pull. 62. 
 
 ' Bayley on Bills, ch. 9, pp. 334, 347, 348 (5th edit.) ; Jacaud v. French, 
 12 East, 317 ; Mason v. Hunt, 1 Doug. 297 ; Bolton v. Puller, 1 Bos. & Pull. 
 539. 
 
 ' Ibid.; Atkins u. Owen, 4 Nev. & Mann. 123. 
 
540 PROMISSORY NOTES. [CHAP. IX. 
 
 ers of the Note ; for a satisfaction by one firm, or a partner 
 therein, will discharge both.^ The reason is, that the act of 
 one partner, within the scope of the partnership business, is 
 •deemed to be the- act of all, and binding upon all, not only 
 jointly, but individually. Therefore, if A and B be partners 
 in one firm, and A and C be partners in another firm, and the 
 first firm be the makers of the Note, and the last the indorsers, 
 and either A, or B, or C pays the Note, it will, at law, discharge 
 both firms, and the payment will be deemed a partnership 
 payment, since each partner is a party, as well as a privy, to 
 the transactions of the partnership, in which he is interested. 
 If A or B pays the Note, as maker, that, of course, discharges 
 the indorsers. If A or pays the Note, as indorser, that 
 equally discharges the maker ; for the firm of A and C can- 
 not, at law, sue the firm of A and B therefor, since there is a 
 merger of the debt, and A cannot sue himself.^ In this re- 
 spect our law differs from the Roman law, and the law of 
 France, and other countries deriving their jurisprudence from 
 the Roman law ; for, by the law of the latter, each firm would 
 be deemed a quasi corporation, capable of suing and being 
 sued by each other.^ And, in equity, the same result is ob- 
 tained in our law, by treating the debt, as between the dif- 
 ferent firms, as a subsisting debt, tequo et bono, for the pur- 
 poses of liquidating the claims of the different firms against 
 each other.* 
 
 § 403. But here it should constantly be borne in mind, 
 that there is a difference in our law between extinguishment 
 of the debt and satisfaction of the debt. Every satisfaction 
 amounts, in point of law, to an extinguishment of the debt ; 
 but every extinguishment is not a satisfaction thereof The 
 claim of the holder, iipon a Note, may be extinguished, as to 
 some parties, and remain entire as to others. But, if his 
 
 Ubid. 
 
 " Jacaud v. French,, 12 East, 317; Bolton v. Puller, 1 Bos. & Pull. 539. 
 ' Story on Partnership, § 221, and note; Pothier, De Soeidte, n. 135, 
 136 ; 2 Bell, Comm. B. 7, pp. 619, 620 (5tb edit.). 
 * Story on Partnership, §§ 221, 222; 1 Story, Eq. Jurisp. §§ 679-682. 
 
CHAP. IX.] MATTERS OF DEFENCE AND DISCHARGE. 541 
 
 claim is satisfied as to any, it is satisfied as to all.^ Hence, 
 it becomes important to ascertain, wliat are matters of dis- 
 charge and extinguishment, and between what parties they 
 are operative. This subject will occur in other connections 
 hereafter, and therefore need "not, at present, be further 
 examined.^ 
 
 § 404. Promissory Notes, either of the maker himself, or 
 of a third person, are often received by the holder, or the 
 creditor, in payment of the original Note or debt due by the 
 maker. And the question often arises, when, and under 
 what circumstances, the receipt of a substituted Note will be 
 deemed a due and absolute extinguishment or satisfaction of 
 the original debt or Note, or not. In general, by our law, 
 the receipt of a Promissory Note of the maker, or of a third- 
 person, will be deemed a conditional satisfaction or extin- 
 guishment only of the original debt or Note of the maker 
 (that is, if the substituted Note, so received, is regularly 
 paid), unless otherwise agreed between the parties.^ It is, 
 at most, therefore, only prima facie evidence of satisfaction, 
 rendering it necessary that the party receiving the siibsti- 
 tuted Note should account for it, before he will be entitled 
 to recover upon the original debt or Note. But, if it is 
 agreed between the parties, as it well may be, that the sub- 
 
 ' Bayley on Bills, ch. 9, p. 335 (5tli edit.) ; Id. p. 347. See Terrell v. 
 Smith, 8 Conn. 426. 
 
 " Post, § 409. 
 
 ' Ante, 104, 105, 117; Bayley on Bills, ch. 9, pp. 363-367 (5tli edit.) ; 
 Griffiths V. Owen, 13 M. & W. 58 ; Williams v. Jarman, Id. 128 ; Ma.xwell 
 V. Deare, 26 Eng. Law & Eq. 60; Puckford v. Maxwell, 6 Term, 52; 
 Owenson v. Morse, 7 Term, 64 ; Kearslake v. Morgan, 5 Term, 513 ; Sayer 
 V. Wagstaff, 5 Beav. 415 ; Clark v. Young, 1 Cranch, 181, 192 ; Sheehy v. 
 Mandeville, 6 Cranch, 253, 264 ; Tobey v. Barber, 5 John. 68 ; Murray v. 
 Gouverneur, 2 John. Cas. 438 ; Herring v. Sanger, 3 John. Cas. 71 ; Sche- 
 merhorn v. Loines, 7 John. 311 ; Johnson v. Weed, 9 John. 310 ; Hoar v. 
 Clute, 15 John. 224 ; Holmes v. De Camp, 1 John. 34 ;' Pintard v. Tack- 
 jngton, 10 John. 104 ; Burdick v. Greene, 15 John. 247; Putnam v. Lewis, 
 8 John. 389; Thomson on Bills, ch. 4, § 3, pp. 163-168 (2d edit.) ; Can- 
 field V. Ives. 18 Pick. 253 ; post, § 438. 
 
542 PEOMISSORY NOTES. [CHAP. IX. 
 
 stituted Note shall be an absolute payment of the original 
 debt or Note, then it will operate as an absolute satisfaction 
 and extinguishment thereof.^ 
 
 § 405. But where the substituted Note is received as con- 
 ditional payment only, it will amount to an absolute satisfac- 
 tion or extinguishment of the original debt or Note under 
 certain circumstances.^ Thus, the holder or creditor -will be 
 precluded from recovering upon the original debt or Note, if 
 it appear that the substituted Note, being the negotiable 
 Note of a third person, is not paid in consequence of the 
 laches of the holder or creditor, and is lost by his neglect ; ^ 
 or if it was originally received as cash, and the holder or 
 creditor took upon himself the risk of its being paid ; * or if 
 it was transferred to him by way of sale ; ^ or if, being the 
 negotiable Note of the maker himself, it has since been trans- 
 ferred by the holder or creditor, and is outstanding, in the 
 hands of a third person.^ 
 
 § 406. Let us, in the next place, proceed to the considera- 
 tion of other matters, which will amount to a discharge or 
 extinguishment of the rights of the holder of a Promissory 
 Note, as against the maker, or as against any of the other 
 parties thereto, who are ordinarily liable to him for the due 
 payment thereof. And, first, as to matters of discharge, or 
 
 ' Ibid. ; Cornwall v. Gould, 4 Pick. 444 ; Huse v. Alexander, 2 Met. 
 157; ante, 104 ; post, §§ 405, 408, 438 ; Maillard u. Duke of Argyle, 6 M. 
 & G. 40; Sheehy v. Mandeville, 6 Cranch, 253, 264. 
 
 " Bayley on Bills, ch. 9, pp. 364-367 (5tli edit.) ; Thomson on Bills, ch. 
 1, § 3, pp. 1 66 - 1 74 (2d edit.) ; Sheehy v. Mandeville, 6 Cranch, 253, 264 ; 
 ante, § 104; pos«, §483. 
 
 ' Bayley on Bills, ch. 7, § 2, pp. 286-289 (5th edit.) ; Id. ch. 9, pp. 364 - 
 367; Thomson on Bills, ch. 1, § 3, pp. 168-172 (2d edit.); Owenson v. 
 Morse, 7 Term, 64; Bridges u. Berry, 3 Taunt. 130; Bishop v. Rowe, 3 
 M. & S. 362. 
 
 * Bayley on Bills, ch. 9, p. 365 (5th edit.); Owenson v. Morse, 7 Term, 
 64 ; Fenn v. Harrison, 3 Term, 759 ; Ex parte Shuttleworth, 3 Ves. 368 ; 
 Wiseman v. Lyman, 7 Mass. 286. 
 
 ' Ibid.; Fydell v. Clarke, 1 Esp. 447. 
 
 • Black V. Zacharie, 3 How. (U. S.) 483. 
 
CHAP. IX.] MATTERS OF DEFENCE AND DISCHAEGE. 543 
 
 extinguishment of the rights of the holder against the maker. 
 These may be resolved into the two following heads. (1.) 
 Those which arise by mere operation of law. (2.) Those 
 which arise from the express act, or implied agreement, of 
 the parties themselves.^ 
 
 § 407. And, first, in relation to matters of discharge, or 
 extinguishment of the debt, as to the maker, by operation of 
 law. Among these we may enumerate, (1.) The discharge 
 of the maker of the Note, under a bankrupt act or insolvent 
 act of the State where the contract is made, and is payable.^ 
 • (2.) The merger of the Note in a judgment thereon, by the 
 holder against the maker.^ (3.) The appointment of the 
 maker to be the executor of the holder.* (4.) The bequest of 
 the Note to the maker by the holder, in his last will and tes- 
 tament.^ (5.) The infancy of the maker, when it is a valid 
 discharge by the local law.^ (6.) The marriage of the payee 
 with the holder of the Note,'^ when it has the like validity 
 and effect ; ^ and other defences of a like nature, which, by 
 the local law, dissolve or discharge the contract ; ^ such, for 
 
 ' Story on Bills, § 265. 
 
 » Ante, § 168 ; Bayley on Bills, ch. 9, pp. 336, 346 (5tli edit.) ; Story on 
 the Conflict of Laws, §§ 331, 332; 2 Bell, Comm. B. 8, ch. 3, p. 688; 
 (5th edit.) ; 3 Burge, Comm. on Col. and For. Law, Ft. 2, ch. 21, § 7, pp. 
 884-886 ; Id. ch. 22, pp. 924, 929 ; Story on Bills, §§ 161, 163 ; 2 Kent, 
 Leet. 39, p. 459 (5th edit.). But a discharge of one joint maker of a 
 Note by mere operation of law, and without any act done by the creditor, 
 will not discharge the other maker. Ward v. Johnson, 13 Mass. 148. 
 
 ' Bayley on Bills, ch. 9, p. 335 (5th edit.) ; Norris v. Aylett, 2 Camp. 
 329 ; Claxton v. Swift, 2 Shower, 441 ; S. C, Lutw. 882. 
 
 * Story on Bills, § 443 ; Freakley v. Fox, 9 B. & C. 130 ; Fothier on 
 Oblig., by Evans, n. 286 ; Bacon, Abridg. Extinguishment, D. ; Comm. Dig. 
 Release, A. 2. ^ 
 
 ' Hobart V. Stone, 10 Pick. 215. 
 
 • Ante, § 168 ; Story on Bills, § 163 ; Thomson v. Ketcham, 8 John. 189 ; 
 Male V. Bflberts, 3 Esp. 163. 
 
 ' Comm. Dig. Release, A. 2 ; Curtis v. Brooks, .37 Barb. 476. 
 ' Bacon, Abridg. Extinguishment, D. 
 
 » See Story on Bills, §§ 363 - 365, 440 ; Story on the Conflict of Laws, 
 §§ 331 - 351 d (2d edit.) ; Id. § 575. 
 
544 PROMISSOEY NOTES. [CHAP. IX. 
 
 example, as compensation, or set-off, by the Eoman and for- 
 eign law.^ 
 
 § 408. Secondly, in relation to matters of discharge or 
 extinguishment by the voluntary act or agreement of the 
 holder. Among these we may enumerate, (1.) An accord 
 and satisfaction, by the receipt of some collateral thing from 
 the maker, in discharge of the Note. (2.) A release, under 
 seal, by the holder to the maker,^ or (as we shall presently 
 see), if there be joint makers, a "release of one or more of 
 them.* (3.) An agreement and substitution of another or 
 higher security, in lieu of the Note ; * such, for example, as 
 taking a bond, under seal, for the debt due by the Note, or 
 taking another negotiable Note therefor, and in lieu thereof.^ 
 (4.) A covenant never to sue the maker on the Note ; for it 
 will operate as a release of that party, by way of extinguish- 
 ment, to avoid circuity of action.® (5.) Any other arrange- 
 ment, of a similar nature, founded upon a fair consideration 
 
 > 2 Story, Eq. Jurisp. §§ 1438 - 1444 ; Pothier on Oblig. by Evans, n. 587- 
 603 (622-642 of French editions) ; ^Dig. Lib. 16, tit. 2, 1. 21; Pothier, 
 Pand. Lib. 16, tit. 2, n. 1, 3. 
 
 ' Commercial Bank v. Cunningham, 24 Pick. 270 ; Chandler v. Herrick, 
 19 John. 129. 
 
 ' American Bank v. Doolittle, 14 Pick. 123; Averill v. Lyman, 18 Pick. 
 346; Tuckerman v. Newhall, 17 Mass. 481 ; Goodnow v. Smith, 18 Pick. 
 414, 415 ; Carnegie v. Morrison, 2 Met. 381, 407 ; Rowley v. Stoddard, 7 
 John. 207; Ward v. Johnson, 13 Mass. 148; 1 Story, Eq. Jurisp. § 112; 
 Abat V. Holmes, 3 Miller, 352 ; Stewart v. Eden, 2 Caines, 121 ; Cheetham 
 V. AVard, 1 Bos. & Pull. 630 ; Nicholson v. Kevill, 4 A. & El. 675 ; Thom- 
 son on Bills, ch. 6, §5, pp. 532, 533 (2d edit.); Lynch v. Reynolds, 16 
 John. 41. 
 
 * Thomson on Bills, ch. 6, § 5, pp. 532 - 537 (2d edit.). See Samson v. 
 Thornton, 3 Met. 275; Sexton v. Wood, 17 Pick. 110; Bruen u.Marquand, 
 1 7 John. 58. 
 
 ' Bacon, Abridg. Extinguishment, D. ; United States v. Lyman, 1 Mason, 
 482, 505 ; Bayley on Bills, ch. 9, pp. 334, 335 (5th edit.) ; Id. pp. 363 - 
 366 ; ante, §§ 104, 404. 
 
 ' Comm. Dig. Release, A. 1 ; Fitzgerald v. Trant, 11 Mod. 254 ; Lacy v. 
 Kinaston, 1 Ld. Raym. 688; S. C, 12 Mod. 551; Dean v. Newhall, 8 
 Term, 168, 171 ; Shed v. Pierce, 17 Mass. 623, 628 ; Cuyler v. Cuyler, 2 
 John. 186 ; Harrison v. Close, 2 John. 448 ; Clarke v. Bush, 3 Cowen, 151. 
 
CHAP. IX.] MATTERS OF DEFENCE AND DISCHAEGE. 545 
 
 between the parties ; such, for example, as an agreement be- 
 tween the holder and the maker, and a third person, that the 
 latter shall take upon himself the sole and exclusive pay- 
 ment of the debt.i 
 
 [§ 408 a. Another defence to a Promissory Note, not men- 
 tioned in the original text, is that of a material alteration 
 since the Note was signed. And here the rule is, that the 
 maker of a Note is discharged by any subsequent alteration, 
 wherever the altered insti^iment would operate differently 
 from the original, whether the alteration be or be not to the 
 maker's prejudice. Tljus, where A signed a Note as the sole 
 surety for B, and afterwards the payee procured C to sign as 
 additional surety, 'without A's knowledge or consent, this 
 was held to discharge A from all liability on the Note.^ So, 
 
 ' See De La Torre v. Barclay, 1 Stark. 7 ; Bayley on Bills, eh. 9, p. 344 
 (5tli edit.). 
 
 ' [Bowers v. Briggs, 20 Ind. 139 ; Gardner v. Walsh, 32 Eng. Law & Eq." 
 162 ; 5 E. & B. 83. Lord Campbell, C. J. said : " In this case we are all 
 of opinion that the rule cannot be supported 'on the ground ' that the sign- 
 ing of the Note by Mrs. Clarke did not amount to an alteration of the 
 Note, and of the liability of the defendant in a material point.' Suppos- 
 ing the other allegations of the plea to be proved, we think there is suffi- 
 cient evidence that ' the plaintiffs, without the consent of the defendant, 
 caused the said Note to be added to, altered, and changed in a material 
 part thereof, and in a material point, by causing the said Alice Clarke ta 
 sign the same.' If, after the Note was a perfect instrument, according to; 
 the intention of the parties, as the joint and several Promissory Note of 
 the defendant and Elizabeth Burton, and after it had been 'completely- 
 issued and negotiated,' the plaintiffs, without the consent of the defendant, 
 had caused it to be signed by Alice Clarke, as a joint and several maker, 
 along with the defendant and Elizabeth Burton, according to principle and 
 authority he is discharged from his liability upon it. There would be na 
 difficulty in showing, that, under certain circumstances, which might have 
 supervened, this alteration might have been prejudicial to the defendant. 
 But' we conceive that he is discharged from his liability if the altered 
 instrument, supposing it be genuine, would operate differently from the 
 original instrument, whether the alteration be or be not to his prejudice. 
 If a Promissory Note, payable at three months after date, were altered by 
 the payee to six months, or if, being made for £100, he should alter it to £50, 
 we conceive that he could not sue the maker upon it after the alteration, 
 either in its altered or original form. The alleged maker was no party to 
 35 
 
546 PROMISSORY NOTES. [OHAP. IX. 
 
 where a Bill of Exchange was altered, after acceptance, by 
 inserting the words, " payable at A," without the knowledge 
 
 a Note at three months, oi" for £50 ; and the Note at six months for £100, 
 to which he was a party, is vitiated by the alteration. 
 
 " This principle, which in Pigotfs case, 11 Rep. 26 J, was established with 
 respect to deeds, was applied to negotiable instruments in Master v. Miller, 
 4 Term, 320, and (as far as we are aware) it has, with one exception, been 
 uniformly acted upon down to the recent case of Burchfield v. Moore, 3 
 El. & Bl. 683 ; S. C, 25 Eng. Rep. 123. The exception is Catton v. Simp- 
 son, 8 A. & El. 136. That case certainly does very nearly resemble the 
 present. The defendant had, as surety, signed a joint and several Prom- 
 issory Note with the principal debtor, having no reason to suppose that any 
 one else was to sign it. Afterwards the payee, without the knowledge of 
 the defendant, induced another person to sign it, with a view to strengthen 
 the security, and the Court held that the defendant'was still liable upon it. 
 3ut the decision took place merely on refusing a rule to show cause why 
 there should not be a new trial. It seems to have proceededon the ground, 
 that, as the new surety could not be liable on the Note by reason of the 
 .stamp laws, the alteration operated nothing, although the counsel urged 
 that ' a Note with an altered date does not bind any one to the new contract, 
 yet the old contract is void.' The judgment of the Court was, without 
 further reasons, in these words : ' In the absence of all authority we shall 
 hold that this was not an alteration of the Note, but merely an addition, 
 vfhich had no effect.' With sincere respect for the learned judges who 
 concurred in this decision, we feel bound to say that in our opinion it is 
 contrary to the authorities, and that it is not law. 
 
 " The counsel for the present plaintiffs ingeniously argued that the de- 
 fendant, in signing the Promissory Note, had entered into two contracts, 
 one separately and another jointly, with Elizabeth Burton ; that, although 
 they were both written on the same piece of paper, and expressed in the 
 same sentence, they might be treated as if they had been written on sepa- 
 rate pieces of paper, respectively signed by the defendant ; and that the 
 separate contract on which the present action is brought is not at all 
 affected by the signature of Alice Clarke, which made her a party to the 
 joint contract entered into by the defendant along with Elizabeth Burton. 
 But we must consider that a joint and several Promissory Note, although 
 it contains two promises, in the alternative, is one contract and one instru- 
 ment, and that if it is designedly altered in any part by the payee, so as to 
 alter the liability of the makers, it is entirely vitiated. 
 
 "According to Pigot's case, H Rep. 26 6, if the party to a deed makes 
 an alteration in a covenant after the deed is executed, not only the cov- 
 enant, but the whole deed, becomes void."] See Henry v. Coates, 17 Ind. 
 161 ; McCaughey v. Smith, 27 N. Y. 39 ; Brownell v. Winnie, 29 N. T. 
 400. But if a person signs a Note long after its inception, as surety for a 
 
CHAP. IX.] MATTERS OF DEFENCE AND DISCHARGE. 547 
 
 of the acceptor, he was held not liable even to a bona fide 
 indorsee, who took it after the alteration for full value. ^] 
 
 new and independent consideration, the maker is not discliarged, though it 
 was done without his knowledge or consent. Stone v. White, 8 Gray, 589. 
 If a party receives a Note, whether in strict payment or not, and fraudu- 
 lently alters it, he cannot resort to the original consideration. Smith v. 
 Mace, 44 N. H. 553 ; Bigelow v. Stilphens, 35 Verm. 521. 
 
 ' [Hill V. Cooley, 46 Penn. St. 259; Southwark Bank v. Gross, 35 Penn. 
 St. 80; Burchfield v. Moore, 25 Eng. Law & Eq. 123"; 3 El. & Bl. Lord 
 Campbell, C. J. there said : " On account of the general importance of 
 the question which arises in this case, we have taken time to consider it; 
 but, after examining the authorities, we feel bound to abide by the opinion 
 which we formed during the argument, and to give judgment for the de- 
 fendant. We must assume upon the pleadings, that, after the Bill was 
 accepted and put into circulation, it was altered in a material part without 
 the consent or knowledge of the acceptor. The replication shows that this 
 was by adding to the acceptance the words ' payable at the Bull Inn, Aid- 
 gate.* By virtue of the 1 & 2 Geo. 4, ch. 78, these words, if in the hand- 
 writing of the defendant, would still leave the acceptance a general 
 acceptance. Nevertheless, three very eminent judges have successively 
 held — Lord Tenterden in Mackintosh v'. Haydon,'Lord Chief Justice 
 Tindal, in Desbrow v. Weatherley, and Lord Lyndhurst, in Taylor v. 
 Moseley, 6 C. & P. 273 — that such words, although they do not alter the 
 direct liabiUty of the acceptor, do vary the contract between others who 
 are parties to the Bill ; therefore, that if interpolated without his consent, 
 they may prejudice the acceptor ; that they amount to a material altera- 
 tion of the Bill, and that they discharge the acceptor. 
 
 " These decisions were only at Nisi Prius, but they have been long acqui- 
 esced in, and we do not disapprove of them. The plaintiff here is a bona 
 fide holder for value without notice of the alteration-; but the Bill must be 
 considered as vitiated in the hands of a prior holder. The defendant was 
 discharged from his liability as acceptor from the moment when the altera- 
 tion of the Bill had been consummated; and the instrument having ceased, 
 in point of law, to be an accepted Bill, the indorsee afterwards could be in 
 no better situation than the indorser. As soon as it is established that there 
 has been a material alteration in a Bill of Exchange, the particular nature 
 of the alteration becomes immaterial, and Master v. Miller, 4 Term, 320, 
 S. C, 2 H. Black. 140, becomes an authority. There a Bill was drawn 
 payable to A B. While in his possession the date was altered, and the 
 Bill, bein^ subsequently indorsed to the plaintiffs, who were (like the pres- 
 ent plaintiff) hona fide indorsees for value, the judgment was that they 
 could not recover against the acceptor. Ashurst, J. says : ' If A B had 
 brought the action, he could not have recovered, because he must suffer . 
 
548 • PKOMISSOKY NOTES. [CHAP. IX. 
 
 § 409. Some of the foregoing cases may serve to illustrate 
 the distinction already alluded to, between the satisfaction 
 and the extinguishment of the claim of the holder upon the 
 Note.^ Thus, for example, taking a security of a higher de- 
 scription, such as a bond or judgment, for the money due on 
 the Note, will extinguish the claim of the holder upon the 
 Note against the party giving the security ; but it will not 
 amount to a satisfaction thereof, so as to discharge the other 
 parties upon the Note.^ Nay, even the taking of the judg- 
 ment debtor in execution, and afterwards discharging him 
 from imprisonment upon a letter of license, will not operate 
 as a satisfaction, as to any of the antecedent parties upoft the 
 Note ; although it will be an extinguishment thereof, as to 
 
 from any alteration of the Bill whilst in his custody ; and the same objection 
 must hold against the plaintiffs who derive title from him. 
 
 "We conceive, therefore, that in this case the plaintiff's remedy is con- 
 fined to a right to recover the consideration for the Bill as between himself 
 and the party from whom" he received it. A similar remedy may be re- 
 sorted to till the party is reached tbrough whose fraud or laches the altera- 
 tion was made. He ought to suffer ; for ' a party who has the custody of 
 an instrument made for his benefit is bound to preserve it in its original 
 state.' And Lord Denman, in delivering the judgment of the Exchequer 
 Chamber, in Davidson v. Cooper, intimates a strong opinion, that Pigot's 
 case, 11 Rep. 26, in which this principle is acted upon, has hitherto been, 
 and still ought to be, upheld. The negotiability of Bills of Exchange is to 
 be favored ; but, with this view, it is material that their purity should be 
 preserved."] So the erasure of the place of payment avoids the Note. 
 White V. Hass, 32 Ala. 430. Where an alteration is niade, and afterwards 
 the note is restored to its' original state with the approval of the maker, he 
 is liable. Collins v. Makepeace, 13 Ind. 448. An erasure, by mistake, of 
 the name of one who wrote his name upon the back, does not discharge him. 
 Brett V. Marston, 45 Maine, 401. The alteration of the date, of the amount, 
 of the rate of interest, or by adding the words " with interest," or of the 
 time of paying interest, avoids the Note. Pay v. Smith, 1 Allen, 4V7 ; Wade 
 u. Withington, 1 Allen, 561; Ivory w. Michael, 33 Mo. 398; Owings ». 
 Arnot, 33 Mo. 406; Boalt v. Brown, 13 Ohio St. 364; Crockett ». 
 Thomason, 5 Sneed, 342. The payee's wife, without the assent of either 
 party, affixed seals to the Note, and it was avoided. Morrison v. Welty, 
 18 Md. 169. 
 
 ' Ante, § 403. 
 
 « Bayley on Bills, ch. 9, pp. 334, 335 (5th edit.) ; Claxton v. Swift, 2 
 Shower, 441 ; Lutw. 882 ; Ansell v. Baker, 15 Queen's Bench, 20. 
 
CHAP. IX.] MATTERS OF DEFENCE AND DISCHAEGE. 549 
 
 the .party committed on execution, and ^ also as to all sub- 
 sequent parties upon the Note,^ although not, perhaps, to 
 a joint maker .^ So, although a covenant never to sue the 
 maker will operate as an extinguishment of the debt, as to 
 the maker,* yet it is not a satisfaction thereof, as to other 
 parties on the Note. And, therefore, such a covenant will 
 not operate as a discharge or release of a joint maker.^ 
 Similar principles have been thought to apply to a judgment 
 against one joint maker ; and that it will be no bar to a joint 
 suit against both the makers,^ or to a several suit -against the 
 other maker. But this seems exceedingly doubtful.' 
 
 ' Bayley on Bills, ch. 9, p. 335 (5tli edit.) ; Hayling v. Mullhall, 2 W. 
 Black. 123.5 ; Chitty on Bills, ch. 9, p. 451 (Sth edit.) ; Michael v. Myers, 7 
 Jurist, 1156. 
 
 ^ Bayley on Bills, ch. 9, p. 344 (5th edit.) ; Smith v. Knox, 3 Esp. 46 ; 
 English V. Darley, 2 Bos. & Pull. 62. 
 
 ' Porter v. Ingraham, 10 Mass. 88, 90. But see Hyde v. Long, 4 Verm. 
 531. ■ 
 
 ' Fowell V. Forrest, 2 Saund. 47, n., S. Williams's note (1) ; Lacy v. 
 Kinaston, 1 Ld. Eaynj. 688 ; S. C, 12 Mod. 551 ; Dean v. Newhall, 8 Term, 
 168. 
 
 ° Thomas v. Courtnay, 1 B. & Aid. 1, 8, per Holroyd, J. ; Story on 
 Bills, § 431 ; Chitty on Bills, ch. 9, p. 449 (9th edit.) ; Dean v. Newhall, 
 8 Term, 168 ; Twopenny v. Young, 3 B. & C._208 ; Mallet v. Thompson, 5 
 Esp. 178 ; Shed v. Pierce, 17 Mass. 623, 628. But see Catskill Bank v. 
 Messenger, 9 Cowen, 37; Chandler v. Herrick, 19 John. 129; Cuyler v. 
 Cuyler, 2 Johns. 186; Harrison v. Close, 2 John. 448. See also Terrell 
 V. Smith, 8 Conn. 426 ; post, § 421. 
 
 ' Sheehy v. Mandeville, 6 Cranch, 253 ; Higgens's case, 6 Co. 45, 46 a. 
 This case was questioned in Ward v. Johnson, 13 Mass. 148,- and in Rob- 
 ertson V. Smith, 18 John. 459. It was also commented on in The United 
 States V. Cushman, 2 Sumner, 426, 438, 439. In King v. Hoare, 8 Jurist, 
 1844,' p. 1127, 13 M. & W. 494, the Court of Exchequer held the judgment 
 against one joint contractor to be a bar to a suit against the other. There 
 is a very able judgment by Mr. Baron Parke in that case. See also Lech- 
 mere w. Fletcher, 1 Cr. & M. 623 ; Siddall v. Eawcliffe, 1 Mood. & Et)b. 
 263 ; Dyke v. Mercer, 2 Shower, 395. 
 
 ' Higgens's case, 6 Co. 45, 46 a ; Porter u. Ingraham, 10 Mass. 88, 90 ; 
 supra, note 3 ; King v. Hoare, 8 Jurist, 1844, p. 1127 ; S. C, 13 M. & W. 
 494 ; Gibbs v. Bryant, 1 Pick. 118 ; Smith v. Black, 9 S. & K. 142 ; Lewis 
 V. Williams, 6 Whar. 264. 
 
550 PROMISSORY NOTES. [CHAP. IX. 
 
 § 410. But a mere parol release of the maker without jpaj- 
 ment will be no discharge or satisfaction thereof, even as to 
 himself; for, by our law, a release, to be effectual, must be 
 under seal.^ Neither will it be any discharge or release of a 
 joint maker, or joint indorser, that the other maker or in- 
 dorser has paid his share of the Note, and thereupon he has 
 been by parol discharged by the holder from any further pay- 
 ment thereof.^ 
 
 § 411. The taking of collateral security by the holder 
 from the maker of the Note, for the payment of the same, 
 will not be any defence against a suit brought upon the same 
 Note unless payment has been received of some part thereof, 
 and -then it will extinguish the claim on the Note only pro 
 tanfo.^ And it has been held, that, if the holder should give 
 up the collateral security, which he has received from an an- 
 tecedent party, as, for example, from the first indorser, after 
 the dishonor of the Note, it will not exonerate the subsequent 
 indorsers from liability to the holder.* The ground of this 
 decision was, that the holder had not thereby given time or 
 credit to the party, from whom the security was received, 
 upon the footing thereof; and might, notwithstanding the 
 collateral security, have immediately sued the party on the 
 Note. But it may admit of question, whether the surrender 
 of such security, without the assent of the other parties, 
 
 ' Shaw V. Pratt, 22 Pick. 305 ; Smith v. Bartholomew, 1 Met. 276 ; De- 
 zeng V. Bailey, 9 Wend. 3S6 ; Jackson v. Stackhouse, 1 Cowen, 122 ; Craw- 
 ford V. Millspaugh, 13 John. 87; Fitch v. Sutton, 5 East, 230, 231 ; Co. 
 Litt. 212 6., But see Foster v. Dawber, 6 Eng. Law & Eq. 496. 
 
 ° Ruggles V. Patten, 8 Mass. 480 ; Harrison v. Close, 2 John. 448 ; De- 
 zeng V. Bailey, 9 Wend. 336 ; Catskill Bank v. Messenger, 9 Cowen, 37; 
 Chandler v. Herrick, 19 John. 129 ; Steinman v. Magnus, 11 East, 390. 
 
 « Cornwall v. Gould, 4 Pick. 448; Beckwith v. Sibley, 11 Pick. 482; 
 Clarke u. Devlin, 3 Bos. & Pull. 363 ; Rice v. CatUn, 14 Pick. 221 ; Whit- 
 well V. Brigham, 19 Pick. 117;*Croghan v. Conrad, 11 Martin, 555; Ligget . 
 V. Bank of Pennsylvania, 7 S. & R. 218 ; Ripley v. Green, 2 Verm. 129. 
 See also Sigourney v. Wetherell, 6 Met. 553. 
 
 * Hurd V. Little, 12 Mass. 502 ; Ligget v. Bank of Pennsylvania, 7 S. & 
 R. 218. 
 
CHAP. IX.J MATTERS OF DEFENCE AND DISCHARGE. 551 
 
 would not, ia a Court of Equity, be held a discharge pro 
 tanto.^ 
 
 § 412. In the next place, as to matters of discharge or ex- 
 tinguishment of the rights of the holder against the indors- 
 ers, or any of \them.'' , We have already had occasion to con- 
 sider the cases in which the neglect to make a due present- 
 ment of the Note, at its maturity, to the maker for payment, 
 or the neglect to give the indorsers due notice of the dis- 
 honor upon such presentment, will exonerate the indorsers 
 from all responsibility to the holder ; and therefore we need 
 not, in this place, refer to that subject.^ But there are 
 others, again, which involve the rights and interests of the 
 indorsers, and deserve attention in this place. 
 
 § 413. First. If there be any valid agreement (that is, 
 one founded upon a valuable consideration, and operative in 
 point of law) between the maker and thg holder, whereby 
 the holder agrees to give credit to the maker of the Note 
 after it is due, or whereby the payment is postponed to a 
 future day, and this agreement is made without the consent 
 of the indorsers, they will be thereby absolved from all obli- 
 gation to pay the same. [This agreement need not be such 
 as would release the debt ; it is sufficient if a breach of it 
 would give the principal a right of action against the cred- 
 itor.*] And it will make no difference whether the agree- 
 ment was made before the maturity of the Note, or after its 
 dishonor, or after the indorsers have been fixed by due pre- 
 sentment, and due notice of the dishonor.^ [Thus, if a cred- 
 
 ' See 1 Story, Eq. Jur. 326 ; Haslett v. Ehrick, 1 Nott & McCord, 
 116. 
 
 ^ See Thomson on Bills, ch. 6, § 5, pp. 532-549 (2d edit.). 
 
 ' Ante, §§ 299 - 355. 
 
 * Dickerson v. Commissioners, 6 Ind. 128. 
 
 ' Chitty on Bills, ch. 9, pp. 441-444, 451, 452 (8th edit.) ; Bayley on 
 Bills, ch. 9, pp. 338, 339 (5th edit.) ; Story 0& Bills, §§ 425, 426 ; Thomson 
 on Bills, ch. 6, § 5, pp. 537-541 (2d edit.) ; English;;. Barley, 2 Bos. & 
 Pull. 62 ; Gould v. Robson, 8 East, 576 ; Clark v. Devlin, 3 Bos. & Pull. 
 365 ; Price v. Edmunds, 10 B. & C. 578 ; Smith v. Becket, 13 East, 187 ; 
 Hubbly V. Brown, 16 John. 70 ; Wood v. Jefferson County Bank, 9 Co wen, ' 
 
552 PEOMISSOKY NOTES. [CHAP. IX. 
 
 itor, before the maturity pf his claim, accept the draft of a 
 debtor, negotiable and payable at a future day, this would 
 discharge' the sureties on the original debt.^] The rule is 
 usually laid down in less broad and comprehensiye terms, 
 namely, that the holder's discharging, or giving time to any 
 of the parties on the Note, will be a discharge of every other 
 party thereto, who, upon payment of the Note, would be 
 entitled to sue the party to whom such discharge or time 
 has been given, unless the riglit to sue in such a case result 
 from facts out of the ordinary course, as from the signatures 
 being accommodation signatures.^ We shall presently see, 
 whether the rule, as thus qualified, does not admit, or re- 
 quire, some further expansion, so as to embrace all indorsers, 
 although the Note may have been made for their own accom- 
 modation.^ 
 
 § 414. The reason of the rule, as thus qualified, is (and 
 it seems equally applicable to all cases), that the holder, by 
 such an agreement, undertates that he will give credit to 
 the maker during the period of the delay, and thereby tacitly 
 agrees, that the indorsers shall not be called upon to pay the 
 Note in the mean time ; since, if they are called upon, and 
 do so pay, they will instantaneously have a right of action 
 over against the maker for their reimbursement, and thus 
 the object of the agreement for delay would be frustrated.* 
 
 194 ; Nolte v. His Creditors, 1 9 Martin, 9 ; Bank of United States v. Hatch, 
 6 Peters, 250 ; Lobdell v. Niphler, 4 Louis. 295 ; Millaudon v. Arnons, 15 
 Martin, 596 ; Hefford v. Morton, 11 Louis. 117 ; Browne v. Carr, 7 Bing. 
 508; Philpot b. Briant, 4 Bing. 717, 719-721 ; Bradford v. Hubbard, 8 
 Pick. 155 ; Burrill v. Smith, 7 Pick. 291 ; Weld v. Passamaquoddy Bank, 
 3 Mason, 505 ; Hewet v. Goodrick, 2 C. & P. 468. 
 
 • JBangs V. Mosher, 23 Barb. 478. 
 
 ' Bayley on Bills, ch. 9, pp. 338 - 340 (5th edit.) ; Story on Bills, § 425 ; 
 Sargent v. Appleton, 6 Mass. 85 ; Calliham v. Tanner, 3 Rob. 299. 
 
 • Post, § 418. 
 
 • Ibid.; Thomson on Bills, ch. 6, § 5, pp. 537-543 (2d edit). In Gould 
 V. Robson, 8 East, 676, 579, which was the case of time being given by the 
 holder to the acceptor on a Bill of Exchange, Lord EUenborough said : 
 " How can a man be said not to be injured if his means of suing be abridged 
 
CHAP. IX.] MATTERS OF DEFENCE AND DISCHARGE. 553 
 
 On the other hand, the indorsers, Ijy such an agreement for 
 credit or delay for a prolonged period without their concur- 
 rence, would, if the doctrine were not as above stated, be 
 held liable for a period beyond their original contract, and 
 might suffer damage thereby ; or, at all events, would be 
 bound by a different contract from that into which they had 
 entered.^ The same result (of discharging the indorsers) 
 
 by the act of another ? If the plaintiffs, holders of the Bill, had called 
 immediately upon the defendants for payment, as soon as the Bill was dis- 
 honored, they might immediately have sued the acceptor and the other 
 parties on the Bill- I had some doubts at the trial, but am inclined to 
 think now that time was given. The holder has the dominion of the BiU 
 at the time ; he may make what arrangements he pleases with the accept- 
 or ; but he does that at his peril ; and, if he thereby alter the situation of 
 any other person on the Bill to the prejudice of that person, he cannot 
 afterwards proceed.against him. As to the taking part payment, no person 
 can object to it, because it is in aid of all the others who are liable upon 
 the Bill ; but here the holder did something more ; he took a new Bill 
 from the acceptor, and was to keep the original Bill till the other was paid. 
 This is an agreement, that in the mean time the original Bill should not be 
 enforced ; such is at least the effect of the agreement ; arid therefore I think 
 time was given." 
 
 ' Ibid. ; post, § 418. The general grounds of this doctrine are well 
 stated by Mr. Chief Justice Best, in delivering the opinion of the Court, in 
 Philpot V. Briant, 4 Bing. 717, 719-721. His language is: "A creditor, 
 by giving further time of payment, undertakes that he will not, during the 
 time given, receive the debt from any surety of the debtor, for, the instant 
 that a surety paid the debt, he would have a right to recover it against his 
 principal. The creditor, therefore, by receiving his debt from the surety, 
 would indirectly deprive the debtor of the advantage that he had stipulated 
 to give him. If the creditor had received from his debtor a consideration 
 for the engagement to give the stipulated delay of payment of the debt, it 
 would be injustice to him to force him to pay it to any one before the day 
 ^ven. If^to prevent the surety from suing the principal, the creditor re- 
 fuses to receive the debt from the surety, until the time given to the debtor 
 for payment by the new agreement, the surety must be altogether dis- 
 charged, otherwise he might be in a situation worse than he was in by his 
 contract of suretyship. If he be allowed to pay the debt at the time when 
 he undertook that it should be paid, the principal debtor might have the 
 means of repaying him. Before the expiration of the extended period of 
 payment, the principal debtor might have become insolvent. A creditor! 
 by giving time to the principal debtor, in equity, destroys the obligation of 
 
554 . . PROMISSORY NOTES. [CHAP. IX. 
 
 would follow if the Note were a joint Note, and a like agree- 
 ment for delay was made by the holder with one of the 
 makers, without the consent of the indorser ; for it would 
 necessarily import a suspension of the rights of the holder 
 against the other maker during the stipulated period of de- 
 lay.^ This whole doctrine has been long and fully estab- 
 lished in Courts of Equity in all cases where indorsers or 
 guarantors, or sureties, are concerned, and has been from 
 thence transferred into the Commercial Law of England 
 and America.^ 
 
 § 415. But, if the agreement be without any valid con- 
 sideration,^ [or if it is made with a stranger, who is no party 
 
 the sureties ; and a Court of Equity will grant an injunction to restrain a 
 creditor who has given further 'time to the principal from bringing an ac- 
 tion against the surety. This equitable doctrine Courts of Law have ap- 
 plied to cases arising on Bills of Exchange. The acceptor of a Bill of 
 Exchange is considered as the principal debtor ; all the other parties to the 
 Bill are sureties that the acceptor shall pay the Bill, if duly presented to 
 him on the day it becomes due, and, if he does not then take it up, that 
 they, on receiving notice of its non-payment, will pay it to the holder. If 
 the holder gives the acceptor further time for payment, without the consent 
 of the drawer or indorsers, he discharges them from all the liability that 
 they contracted by becoming parties to the Bill ; but delay, in suing the 
 acceptor, will not discharge the drawer or indorsers, because such delay 
 does not prevent them from doing what, on receiving notice of non-pay- 
 ment by the acceptor, they ought to do ; namely, pay the Bill themselves." 
 
 ' See Kennard v. Knott, 4 M. & G. 476, and the note of the Reporters, 
 cited ^osi, § 415, note. 
 
 ' 1 Story on Eq. Jurisp. §§ 324-326 ; King v. Baldwin, 2 John. Ch. 554; 
 2 Story, Eq. Jurisp. § 883 ; Story on Bills, § 425, and notes. 
 
 ' Philpot u. Briant, 4 Bing. 717; Bayley on Bills, ch. 9, pp. 339, 340 
 (5th edit.); Chitty on Bills, ch. 9, pp. 442-447 (8th edit.); Bank of 
 United States v. Hatch, 1 McLean, 93 ; M'Lemore v. Powell, 12 Wheat. 
 554 ; Planters' Bank v. Sellman, 2 Gill. & John. 230 ; Story on Bills, § 426 ; 
 Shook V. State, 6 Ind. 113, 461 ; Margesson v. Goble, 2 Chitty, 364. In 
 the case of Philpot v. Briant, 4 Bing. 717, 719- 721, Lord Chief Justice, 
 Best said : " The time of payment must be given by a contract that is 
 binding on the holder of the Bill ; a contract, without consideration, is not 
 binding on him ; the delay in suing is, under such a contract, gratuitous ; 
 notwithstanding such contract, he may proceed against the acceptor, when 
 he pleases, or receive the amount of the Bill from the drawer or indorsers. 
 
CHAP. IX.] MATTERS OF DEFENCE AND DISCHARGE. -555 
 
 to the Note,^] or if, being for a valid consideration, it be of 
 such a nature that the maker can by law obtain and entitle 
 
 As the drawer and indorsers are not prevented from taking up the Bill, by 
 such delay, their liability is not discharged by it ; to hold them discharged, 
 under such circumstances, would be to absolve them from their engage- 
 ments, without any reason for so doing. In the case of the partners of the 
 Arundel Bank v. Goble, which is to be found in a note to Chitty on Bills 
 (p. 447), and the accuracy of which note is proved by my brother's report 
 to us of what passed at the trial of the cause before him, that point is de- 
 cided. The acceptor applied to the holders for indulgence of some months ; 
 they, in reply, wrote to the acceptor, informing him that they would give 
 him the time that he required, but that they should expect interest. On a 
 motion for a new trial, the Court of King's Bench held, that, as no fresh 
 security was taken from the acceptor, the agreement of the plaintiffs to 
 wait was without consideration, and did not discharge the drawer. This is 
 a stronger case than the present. In our case, there is no agreement for 
 any particular time, nor any consideration for the giving the time that was 
 given to the acceptor." In M'Lemore v. Powell, 12 Wheat. 554, 556-558, 
 the Supreme Court of the United States said : " The case, thefi, resolves 
 itself into this question, whether a mere agreement with the drawers for 
 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. We admit the 
 doctrine, that, although the indorser has received due notice of the dishonor 
 of the Bill, yet, if the holder afterwards enters into any new agreement 
 with the drawer for delay, in any manner changing the nature of the 
 original contract, or affecting the rights of the indorser, or to the prejudice 
 of the latter, it will discharge him. But, in order to produce such a result, 
 the agreement must be one binding in law upon the parties, and have a 
 sufficient consideration to support it. An agreement without consideration 
 is utterly void, and does not suspend for a moment the rights of any of the 
 parties. In the present case, the jury have found that there was no con- 
 sideration for the promise to delay a suit, and, consequently, the plaintiffs 
 were at liberty immediately to have enforced their remedies against all the 
 parties. It was correctly said by Lord Eldon, in English v. Darley, 2 Bos. 
 & Pull. 61, that, ' as long as the holder is passive, all his remedies remain' ; 
 and we add, that he is not bound to active diligence. But, if the holder 
 enters into a valid contract for delay, he thereby suspends his own remedy 
 on the Bill for the stipulated period ; and, if the indorser were to pay the 
 Bill, he could only be subrogated to the rights of the holder, and the drawer 
 could or might have the same equities against him as against the holder 
 
 » Frazer v. Jordan, 8 El. & Bl. 303. 
 
556 ' PROMISSORY NOTES. [CHAP. IX. 
 
 himself to the same delay, without the consent of the holder, 
 [as where the holder had been already. discharged from the 
 Note in bankruptcy ,i] there- the agreement will not opei'ate as 
 
 himself. If, therefore, such a contract be entered into ■without his assent, 
 it^ is to his prejudice, and discharges him. The cases proceed upon the 
 distinction here pointed out, and conclusively settle the present question. 
 In Walwyn v. St. Quintin, 1 Bos. & Pull. 652, where the action was by in- 
 dorsees against the drawer of a Bill, it appeared that, after the Bill had 
 become due, and been protested for non-payment, though no notice had 
 been given to the drawer, he having no effects in the hands of the acceptor, 
 the plaintiffs received part of the money on account from the indorser; and, 
 to an application from the acceptor, stating that it was probable he should 
 be able to pay at a future period, they returned for answer, that they would 
 not press him. The Court held it no discharge ; and Lord Chief Justice 
 Eyre, in delivering the opinion of the Court, said, that if this forbearance 
 to sue the acceptor had taken place before noticing and protesting for non- 
 payment, so that the Bill had not been demanded when due, it was clear 
 the drawer would have been discharged, for it would be giving a new 
 credit to the acceptor. But that after protest for non-payment, and notice 
 to the drawer, or an equivalent to notice, a right to sue the drawer had 
 attached, and the holder was not bound to sue the acceptor. He might 
 forbear to sue him. ; The same doctrine we^s held in Arundel Bank v. Goble, 
 reported in a note to Chitty on Bills. (Chitty, 379, n. c, edit. 1821.) 
 There the acceptor applied for time, and the holders assented to it, but 
 said they should expect interest. It was contended, that this was a dis- 
 charge of the drawer ; but the Court held otherwise, because the agree- 
 ment of the plaintiffs to wait was without consideration, and the acceptor 
 might, notwithstanding the agreement, have been sued the next instant ; 
 and that the understanding, that interest should be paid by the acceptor, 
 made no difference. So, in Badnall v. Samuel, 3 Price, 521, in a suit by 
 the holder against a prior indorser of a Bill of Exchange, it was held, that 
 a treaty for delay between the Holder and acceptor, upon terms which 
 were not finally accepted, did not discharge the defendant, although an 
 actual delay had taken place during the negotiation, because there was no 
 binding contract which precluded the plaintiffs from suing the acceptor at 
 any time. Upon authority, therefore, we are of opinion, that this writ of 
 error cannot be sustained, and that the judgment below was right. Upon 
 principle, we should entertain the same ojunion, as we think the whole rea- 
 soning, upon which the delay of the holder to enforce his rights against the 
 drawer is held to discharge the indorser after notice, is founded upon the 
 notion, that the stipulation for delay suspends the present rights and reme- 
 dies of the holder." 
 * Tiernan v. Woodruff, 5 McLean, 350. 
 
CHAP. IX.] MATTERS OF DEFENCE AND DISCHAEGE. 557 
 
 a discharge of the indorsers,for the reason that the indorsers 
 cannot, under such circumstances, be injured by the delay, 
 or, if injured, it is by operation of law, and not dependent 
 upon the act of the holder. Thus, for example, if, pending 
 a suit on the Note against the maker, the holder should agree 
 to give time to the maker for payment thereof, short of the 
 time within which judgment could regularly be obtained 
 against him, that would not be a discharge of the indorser.^ 
 
 ' Kennard v. Knott, 4 M. & G. 474 ; Jay v. Warren, 1 C. & P. 532. 
 See Lenox v. Prout, 3 Wheat. 520 ; Bank of United States v. Hatch, 6 
 Peters, 250, 258 ; Story on Bills, § 426. In Price v. Edmunds, 10 B. & C. 
 578, 582, Mr. Justice Bayley, in delivering the opinion of the Court, said : 
 " He (the defendant) contends that time was given to the principal debtor. 
 Now, it appears, that an action against the principal was about to be tried 
 at the spring assizes, 1828, and shortly before the assizes a cognovit was 
 given, upon which the question of time depends. According to that cogno- 
 vit, £70 was to be paid on the 28th of April, £70 in May, and the residue 
 in June ; and there was a proviso, that the plaintiff should be at liberty to 
 issue execution for the whole sum, if any one of the instalments were not 
 duly paid. Time was, at all events, to be given until the 28th of April, and 
 if the first payment was then duly made, further indulgence was to be given. 
 It turns out that, in fact, the first instalment was not paid on the 28th of 
 April, so that the then defendant had not, by virtue of the cognovit, any 
 further indulgence, but was then liable to an execution for the whole sum 
 due. The case then stands thus : In March, a bargain was made, that pro- 
 ceedings should be stayed until the 28th of April, but, according to the 
 regular course of practice, the then defendant had power to keep the plain- 
 tiff out of his money until the 29th or 30th of that month, so that, in reality, 
 he did not obtain any indulgence by the cognovit. This transaction clearly 
 would not be within the rule as to giving time so as to discharge bail ; for 
 it is a well-established rule, that a cognovit by the principal, without no- 
 tice to the bail, does not discharge them; unless time be given to the former 
 beyond that in which the plaintiff would have been entitled to judgment 
 and execution, had he gone to trial in the original cause. The present de- 
 fendant, therefore, could not take advantage of it, even if the first point 
 made by him were sustainable ; the rule for entering a nonsuit must therefore 
 be discharged." The doctrine was carried a step further in Kennard v. 
 Knott, 4 M. & 6. 474, where the plaintiff had consented to a judge's order, 
 in an action brought against the acceptor, that, upon payment of the prin- 
 cipal and interest on a certain future day, all further proceedings should 
 be stayed, otherwise judgment to go ; it not appearing that such future day 
 was posterior to that on which judgment could be obtained against the 
 
568 ' PROMISSORY NOTES. [CHAP. K. 
 
 So, if, under similar circumstances, the holder were to take 
 a cognovit to enter judgment against the maker, if the Note 
 were not regularly paid by instalments, or otherwise, before 
 the time when judgment in the suit could regularly be ob- 
 tained, the same result would follow.^ It would be other- 
 wise, if the postponement were beyond the period when judg- 
 ment could be regularly obtained.^ 
 
 acceptor in the action. The learned reporters, in a note (p. 476), remark, 
 after referring to Price v. Edmunds, 10 B. & C. 578 : "In that case B, prin- 
 cipal, and C, surety, gave their Promissory Note to A. A sued B, and 
 took from him a cognovit payable by instalments, the first of which wotild 
 become payable before the time at which A could have signed final judg- 
 ment, had no cognovit been given. The Court held, that C was not dis- 
 charged, inasmuch as no longer time had been given to B than he would 
 have had if the suit had proceeded. It is, however, observable, that if the 
 cognovit given by B, and accepted by A, did not discharge C, it would 
 have been competent to A to arrest C on the very day on which the cog- 
 novit had 'been given, and if C had paid the money, which it would be his 
 interest as well as his duty to do, he might have arrested B as soon as he 
 could have issued a writ, and B, who had waived his defence to the action 
 brought against him in order to purchase his liberty, at all events until the 
 day appointed for the payment of the first instalment, might have found 
 himself in custody at a much earlier period, precisely as if no cognovit had 
 been given. It would therefore appear to be necessary, in order to en- 
 able A to keep faith with B, that until the first instalment became payable, 
 A's right of action against C should be suspended ; and a right of action, 
 if suspended, is destroyed. In Price v. Edmunds, B and C, as joint makers, 
 were both primarily liable on the face of the Note, though C was, in fact, a 
 surety ; whereas, in the principal case, the drawer, being only liable in de- 
 fault of the drawee, was, ex facie, merely a surety." 
 
 ' Price V. Edmunds, 10 B. & C. 578 ; Hall v. Cole, 4 A. & El. 577 ; Hal- 
 lett V. Holmes, 18 John. 28 ; Story on Bills, § 426 ; Chitty on Bills, ch. 9, 
 pp. 447, 448 (8th edit.). See Lee v. Levi, 1 C. & P. 553 ; S. C, 4 B. & 
 C. 390 ; Jay v. Warren, 1 C. & P. 532 ; Story on Bills, § 427 ; Bank of 
 United States v. Hatch, 6 Peters, 250, 260 ; Kennard v. Knott, 5 Scott (N. 
 S.), 247; Michael v. Myers, 7 Jur. 1156. 
 
 " See Bank of United States v. Hatch, 6 Peters, 250, 258 ; Kennard v. 
 Knott, 4 M. & G. 474; Story on Bills, § 427. In the case of the Bank of 
 the United States v. Hatch, the Court said : " It appears from the special 
 verdict, that the contract with Pearson, for the continuance of the suit on 
 this very Bill, without judgment, until the next term of the Circuit Court, 
 was for a valuable consideration, and not a mere voluntary and discretion- 
 
CHAP. IX.] MATTERS OF DEFENCE AND DISCHARGE. 559 
 
 § 416. The fact, that there is a valid consideration pass- 
 ing between the maker and the holder, as, for example, a col- 
 
 ary exercise of authority on the part of the agents of the bank. What, 
 then, is to be deemed the true construction of it ? Did it amount to no 
 more than an agreement that that particular suit should stand continued, 
 leaving the bank at full liberty to discontinue that on the morrow, at their 
 discretion, and to commence a new suit, and new proceedings for the same 
 debt ? Or was it intended by the parties to suspend the enforcement of 
 any remedy for the debt, for the stipulated period, and rely solely on that 
 suit for a recovery ? We are of opinion, that the intention of the parties, 
 apparent on the contract, was to suspend the right to recover the debt, 
 until the next term of the Court. It is scarcely possible that Pearson 
 should have been willing to give a valuable consideration for the delay of a 
 term, and yet have intentionally left avenues open, to be harassed by a 
 new suit, in the interval. Indeed, no other remedy, except in that particu- 
 lar suit, seems to have been within the contemplation of either party. If the 
 bank had engaged, for a like consideration, not to sue Pearson on the Bill 
 for the same period, there could have been no doubt that it would be a con- 
 tract suspending all remedy. What substantial difference is there between 
 such a contract and a contract to suspend a suit already commenced ; 
 which is the only apparent remedy for the recovery of the Bill during the 
 same period ? Is it not the natural, nay, necessary intendment, that the 
 defendant shall have the full benefit of the whole period, as a delay of pay- 
 ment of the debt V It is no answer, that a new suit would be attended with 
 more delay. That might or might not be the case, according to the differ- 
 ent course of practice in different States ; and, at all events, it would harass 
 the party with new expenses of litigation. But the true inquiry is, whether 
 the parties did, or did not, intend a surceasing of all legal proceedings dur- 
 ing the period. We think, that the just and natural exposition of the con- 
 tract is, that they- did." The Court afterwards added: " There is a recent 
 case in England, which approaches very near to the circumstances of the 
 present case. We allude to Lee v. Levi, 1 C. & P. 553. In. that case, the 
 holder, after suit brought against the acceptor and the indfirser, had taken 
 a cognovit of the acceptor for the amount of the Bill, payable by instal- 
 ments ; and at the trial of the suit against the indorser. Lord Chief Justice 
 Abbott thought, that this was a giving time, which discharged the indorser, 
 and the jury found a verdict accordingly. That case afterwards came be- 
 fore the whole Court for revision (6 Dowl. & Eyl. 475 ; S. C, 4 B. & C. 
 390) ; and was then decided upon a mere collateral point, namely, that the 
 defence, having arisen after suit brought against the indorser, should have 
 been taken advantage of by special plea, and could not be given in evi- 
 dence under the general issue ; so that the ruling of the Lord Chief Justice 
 was not brought .directly into judgment. It was not, however, in any 
 measure overruled." 
 
560 PROMISSOKY NOTES. [CHAP. IX. 
 
 lateral security, given by the maker to the holder, will not 
 affect the i-ights of the latter against the indorsers, unlesg 
 accompanied with some stipulation to give time to the maker ; 
 for the holder is at full liberty to take any such security, and, 
 indeed, it is for the benefit of the indorsers that he should so 
 do.i [But it has been held, that, if the holder of a Note ac- 
 cept other Notes as collateral security, which do not mature 
 until after the Note thereby secured, this creates an implied 
 agreement not to enforce payment of the latter Note until 
 the collateral Notes fall due, and therefore- the indorsers of 
 the Note so secured are discharged.^] It is also material to 
 state, that, as the ground upon which an agreement to give 
 time to the maker, made by the holder without the consent 
 of the indorsers, upon a valid consideration, is held to be a 
 discharge of the indorser, is solely this, that the holder there- 
 by impliedly stipulates not to pursue the indorsers, or to seek 
 satisfaction from them in the intermediate period ; it can 
 never apply tO any case where a contrary stipulation exists 
 between the parties.' Hence, if the agreement for delay 
 expressly saves and reserves the rights of the holder in the 
 intermediate time against the indorsers, it will not discharge 
 the latter ; * for the very ground of the objection is removed, 
 that it varies their rights, and subjects tliem to the disad- 
 vantage of having their own rights postponed against the 
 maker if they should take up the Note.^ [So, also, if the 
 
 ' Pring V. Clarkson, 1 B. & C. 14; Ripley v. Greenleaf, 2 Verm. 129; 
 Twopenny v: Tfoung, 3 B. & C. 208 ; Thomson on Bills, ch. 6, § 5, p. 539 
 (2d edit.) ; Bayley on Bills, ch. 9, pp. 344, 345 (5th edit.) ; Bedford v. Bear 
 kin, 2 B. & Aid. 210 ; Badnall v. Samuel, 3 Price, 521 ; Oxford Bank i;. 
 Lewis, 8 Pick. 458 ; Story on Bills, § 427. 
 
 ' Michigan State Bank v. Leavenworth, 28 Verm. 209. 
 
 ' Ante, § 414 ; Story on Bills, § 425, and note ; Philpot v. Briant, 4 Bing. 
 717, 719 - 721 ; Thomas v. Courtnay, 1 B. & Aid. 1 ; English v. Darley, 2 
 Bos. & Pull. 61. 
 
 * Sohier v. Loring, 6 Cush. 537. • 
 
 ' Stewart v. Eden, 2 Caines, 121 ; Nichols v. Norris, 3 B. & Ad. 41, note; 
 Wood V. Jefferson County Bank, 9 Cowen, 194 ; Tombeckbe Bank v. Strat- 
 t6n,'7 Wend. 429 ; Suckley v. Furse, 15 John. 338 ; Twopenny v. Young,' 
 
CHAP. IX.] MATTERS OF DEFENCE AND DISCHARGE. 561 
 
 agreement with the maker impliedly reserves a right to 
 prosecute the indorser, as where part of the' Note is paid 
 by the maker, and the holder agrees not to call on the in- 
 dorser for the balance for the space of nine months from that 
 time.ij 
 
 § 417. Even a valid agreement to give time to the maker, 
 or to a prior indorser, will not discharge a subsequent in- 
 dorser, or affect the rights of the holder, where the indul- 
 gence is granted, or agreed to be granted, after such subse- 
 quent indorser has been fixed with a final judgment against 
 him upon the Note, at the suit of the holder.^ For, at law, 
 such a judgment is completely operative against such subse- 
 quent indorser, and is not suspended or released by such an 
 agreement. 
 
 § 418. The doctrine, which we have been thus far consid- 
 ering, of the effect of the giving of time by the holder to the 
 maker, or other antecedent party, is strictly applicable to all 
 cases where the indorsers stand in the relation of bona fide 
 indorsers, holding the Note in their own right, for value, and 
 incurring the ordinary obligations of that relation. But it 
 has been said, that a different rule should prevail, where the 
 Note is made for the accommodation of a particular indorser; 
 and that he will not be discharged by the agreement of the 
 holder with the maker, or with any antecedent indorser, to give 
 time for payment upon a valid consideration for the delay ; for, 
 in such a case, the particular indorser can sustain no injury 
 by such delay, or giving time, as the debt is his own, and he 
 can at any time discharge it at his pleasure.' But there 
 
 3 B. & C. 208 ; Ex parte Glendinning, 1 Buck, 517; Pring v. Clarkson, 1 
 B. & C. 14 ; Ripley v. Greenleaf, 2 Verm. 129 ; Bedford v. Deakin, 2 B. 
 & Aid. 210; S. C, 2 Stark. 178; Story on Bills, § 426; Bayley on Bills, 
 ch. 9, p. 369 (5tli edit.). 
 
 ' Hutchins v. Nichols, 10 Gush. 299. 
 
 « Baker v. Flower, 5 Jur. 635 ; Bray v. Manson, 8 M. & W. 668. 
 
 ' Bayley on Bills, ch. 9, pp. 338 - 341 (5th edit.) ; CoUott v. Haigh, 3 
 Camp. 281 ; Laxton v. Feat, 2 Camp. 185 ; Thomson on Bills, ch. 6, § 5, 
 pp. 545, 546 (2d edit.) ; Id. ch. 4, § 6, pp. 364, 365 ; Chitty on Bills, ch. 9, 
 pp. 450-452 (8th edit.); Story on Bills, §§ 425, 434 ; ante, § 413. 
 36 
 
562 PROMISSORY NOTES. [CHAP. IX. 
 
 seems much reason to doubt whether this doctrine is well 
 founded ; and the strong tendency of the more recent author- 
 ities is, to hold, that in all cases the holder has a right to 
 treat all the parties to a Bill as liable to him, exactly to the 
 same extent, and in the same manner, whether he knows the 
 Note to be an accommodation Note or not ; for, as to him, 
 all the parties agreed to hold themselves primarily or second- 
 arily liable, as they stand on the Note, and that they are not 
 at liberty, as to him, to treat their liability as at all affected 
 by any accommodation between themselves.^ If so, then it 
 would seem to follow, that he is reciprocally bound to them 
 in the same manner. 
 
 § 419. It follows, from what has been already suggested, 
 that, if the delay, or giving of time, is with the consent of 
 the indorser, the latter is bound by his original liability ; for 
 then he waives the objection, or becomes party to the agree- 
 
 ' Raggett V. Axmorr, 4 Taunt. 730 ; Kerrison v. Cooke, 3 Camp. 362 ; 
 Farmers' Bank v. Kathbone, 26 Verm. 35. See Eolfe v. Wyatt, 5 C. & P. 
 181 ; Fentum w. Pocock, 5 Taunt. 192; Nichols v. Norris, 3 B. & Ad. 41, 
 note ; Harrison v. Courtauld, 3 B. & Ad. 36 ; ante, § 413 ; post, § 422, note, 
 § 4?3, note ; Murray v. Judah, 6 Cowen, 484 ; Bayley on Bills, ch. 6, § 1, 
 pp. 166, 167 (5th edit.); Mallet v. Thompson, 5 Esp. 178; North Ameri- 
 can Coal Company v. Dyett, 4 Paige, 273 ; Story on Bills, § 432; Commer- 
 cial Bank V. Cunningham, 24 Pick. 270, 275. In Price v; Edmunds, 10 
 B. &.C- 578, 582, Mr. Justice Bayley, in delivering the opinion of the- 
 Court, said ,: " The first question raised in this case is, whether a party, 
 ■who has in the ordinary mode joined in making a Promissory Note, is at 
 liberty afterwards to insist that he became a party to it as surety only, and 
 not as principal. The defendant insists that he may do so ; and, secondly, 
 that he has been discharged from his liability, in consequence of time 
 having been given to the principal debtor. If it were incumbent on us to 
 decide that question, we should have to reconsider the cases of Laxton v. 
 Peat, CoUott V. Haigh, and the cases that are at variance with them ; but 
 here, the foundation of the argument, upon which the defendant must rely, 
 entirely fails." In the same case, Mr. Justice Parke said : " I think 
 that the decision in Fentum v. Pocock, where it was held that the ac- 
 ceptor of an accommodation Bill was not discharged by giving time to 
 the drawer, was good sense and good law." See post, § 423, and note, 
 where the game subject is considered with reference to a release or dis- 
 charge. 
 
CHAP. IX.] MATTERS OF DEFENCE AND DISCHARGE. 563 
 
 ment.^ So, if tbe delay, or giving of time, be merely volun- 
 tary on the part of the holder, and upon no agreement be- 
 tween him and the maker, or other antecedent parties, but is 
 an indulgence which he chooses to grant, sua sponte, and 
 during his own pleasure ; there, however long it may be, it 
 is no discharge of any of the indorsers, who have been fixed 
 by due notice ; for their rights are in no respect prejudiced 
 by the conduct of the holder, since he is perfectly at liberty 
 to sue any and all of them at his pleasure, and is not bound 
 to any diligence in seeking his reimbursement.^ Nor can the 
 indorser insist, that the holder should, upon his request, use 
 any such diligence.^ His remedy is to pay the Note, and 
 thus to have his recourse over against the maker or other 
 parties.* 
 
 § 420. On the other hand, the giving time by the holder 
 to a subsequent indorser, for a valuable consideration, will 
 not discharge the antecedent parties to the Note from their 
 liability; since the antecedent parties are not thereby de- 
 prived of any rights of recourse which they may have 
 
 ' Bayley on Bills, ch. 9, pp. 338-341 (5th edit.) ; Stevens v. Lynch, 12 
 East, 38 ; Bruen v. Marquand, 1 7 John. 58 ; Stewart v. Eden, 2 Caines, 
 121 ; Parsons v. Gloucester Bank, 10 Pick. 533 ; Smith v. Hawkins, 6 Conn. 
 444; Gloucester Bank v. Worcester, 10 Pick. 528 ; Chitty on Bills, eh. 9, 
 pp. 448, 449 (8th edit.) ; Clark v. Devlin, 3 Bos. &_Pull. 363 ; Thomson on, 
 Bills, ch. 6, § 5, pp. 541-543 (2d edit.). 
 
 ' Bayley on Bills, ch. 6, § 1, pp. 166, 167 (5th edit.) ; Id. ch. 9, pp. 341,. 
 342 (5th edit.) ; Walwyn v. St. Quintin, 1 Bo's. & Pull. 652 ; Anderson v. 
 Cleveland, 13 East, 430, note; Powell v. Waters, 17 John. 176; Stafford 
 V. Yates, 18 John. 327; Lenox v. Prout, 3 Wheat. 520; Chitty on Bills, 
 ch. 9, pp. 442-446 (8th edit.) ; Philpot v. Briant, 4 Bing. 717 ; Story on 
 Bills, § 426 ; Adams v. Gregg, 2 Stark. 531 ; Dingwall ti. Dunster, 1 Doug. 
 247 ; Nichols v. McDowell, 14 B. Mon. 6. 
 
 ' See Trimble v. Thome, 16 John. 152; Sterling v. Marietta and Sus- 
 quehanna Trading Company, 11 S. & E. 179; Beardsley v. Warner, 6 
 Wend. 610; S. C, 8 Wend. 194 ; Frye v. Barker, 4 Pick. 382; Hunt w. 
 Bridgham, 2 Pick. 581, and note 3, p. 585, where the principal authorities 
 are collected ; Beebe v. West Branch Bank, 7 Watts and Serg. 375 ; ante, 
 § 115 a. 
 
 « Ibid.; Thomson on Bills, ch. 6, § 5, pp. 542, 543 (2d edit.). 
 
564 PROMISSORY NOTES. .[CHAP. IX. 
 
 against the party who is otherwise liable to them.' They 
 can have no claim against any subsequent indorser, unless, 
 in cases where they are accommodation parties for him ; and 
 that, if unknown to the holder, as we shall presently see,^ 
 will not affect his rights.^ 
 
 f 421. The question may also arise, Whether the giving of 
 time by the holder to one joint maker, or indorser, will dis- 
 charge the other joint parties to the Bill. Upon the same 
 principle as that which is applied to the case where the holder 
 covenants not to sue one joint contractor, it would seem that 
 it will not be a discharge ; for it is a mere personal contract 
 with him, for the breach of which a remedy may lie by him 
 alone, but it will not be equivalent to a release.* So, it 
 seems that, where several persons are jointly, and severally 
 liable upon a contract, the giving of time to one, or proceed- 
 ing in a suit against one even to judgment, but without any 
 satisfaction, will be no discharge of the other.^ Indeed, it 
 has been thought, that it will make no difference, in such a 
 case, at law, whatever might be the case in equity (upon 
 which some doubt may be entertained), that one of the joint 
 parties upon the Note is, in fact, a surety for the other, at 
 least if he is not stated to be such upon the face of the Note ; 
 for, under such circumstances, as to the holder, he may and 
 should be treated as a joint principal, without any reference 
 to his actual relation to the other joint contractor ; since he 
 chooses to place himself in that predicament, as jointly liable, 
 as principal upon the Note.^ 
 
 > Bayley on Bills, ch. 6, § 1, p. 166 ; Id. ch. 9, pp. 338, 339 (5th edit.) ; 
 Ellis V. Galindo, 1 Doug. 250, note ; Smith v. Knox, 3 Esp. 46 ; Claridge 
 V. Dalton, 4 M. & S. 226 ; English v. Darley, 2 Bosw. & Pull. 61 ; Thomson 
 on Bills, ch. 6, § 5, pp. 539, 540 (2d edit.) ; Calliham ». Tanner, 3 Kob. 
 .299 ; ante, § 419. 
 
 « Ante, § 418 ; post, §§ 421, 423. « Ibid. 
 
 ♦ Ante,^ § 409. 
 
 ' See United States v. Cushman, 2 Sumn. 310, 426 ; Lechmere v. 
 .Fletcher, 1 C. & M. 623 ; Pothier on Oblig. n. 271, 272 ; Price v. Edmunds, 
 10 B. & C. 578. But see Hall v. Wilcox, 1 Mood. & Rob. 58 ; Wilson v. 
 Foot, 11 Met. 285. 
 
 ' Ibid. ; Wilson w. Foot, 11 Met. 285 ; Oxford Bank V. Haynes, 8 Pick. 
 
CHAP. IX.] MATTERS OF DEFENCE AND DISCHARGE. 665 
 
 § 422. Secondly, a fortiori, the receiving of part payment 
 from the maker, or from any indorser, without any contract 
 for delay, will not discharge any of the other parties to the 
 Note; for (as has been already suggested) it is for the 
 benefit, and cannot be for the injury, of any other party, to 
 diminish his liability, after it has been once absolutely fixed.^ 
 
 423. But see Pitman on Principal and Surety, pp. 167-192, where the 
 principal authorities are collected. Mayhew v. Crickett, 2 Swanst. 185 ; 
 Story on Bills, §§ 430, 432 ; ante, § 418. 
 
 ' Bayley on Bills, ch. 9, p. 343 (oth edit.) ; Walwyn v. St. Quintin, 1 
 Bos. &Pull. 652; James v. Badger, 1 John. Cas. 131 ; Kennedy ». Motte, 
 3 McCord (S. C), 13 ; Hunt v. Bridgham, 2 Pick. 581 \post, § 423 ; Thom- 
 son on Bills, ch. 6, § 5, p. 542 (2d edit.) ; Chitty on Bills, ch. 9, pp. 442, 
 451, 452 (8th edit.) ; Story on Bills, § 436 ; Gould v. Kobson, 8 East. 576 ; 
 Ayrey v. Davenport, 5 Bos. & Pull. 474 ; Bank of U. States «. Hatch, 6 
 Pet. 250 ; Kuggles v. Patten, 8 Mass. 480 ; Lobdell v. Niphler, 4 Miller, 294 ; 
 Sargent v. Appleton, 6 Mass. 85 ; Pothier de Change, n. 176-179 ; Com- 
 mercial Bank v. Pickering, 24 Pick. 270, 275. But see Johnson v. Kennion, 
 
 2 Wils. 262 ; Hull v. Pitfield, 1 Wils. 46 ; Story on Bills, § 436 ; White jr. 
 Hopkins, 3 Watts & S. 99. In The Commercial Bank v. Cunningham, 24 
 Pick. 270, 275, the Court said: " This claim is undoubtedly well founded, 
 as to all those notes and drafts which were signed by said Parker & Co., as 
 makers or principal promisors ; for the release to the principal promisor is 
 equivalent to payment of the debt, and, consequently, discharges the 
 indorser. But it' is very clear, that the receiving part payment from the 
 indorser, and releasing him, cannot operate as a discharge of the principal 
 debtor from the balance due. It is, however, agreed, that some of the 
 Notes indorsed by W. Parker & Co. were made for their accommodation, 
 and the proceeds thereof went to their use. But the demandants deny 
 that they had, at the time of the discount of such Notes, or when the 
 release was made, any notice of this fact. It has been argued, that, as to 
 these Notes, Parker & Co. are to be considered as the principal debtors, 
 and that a discharge to them must operate as a discharge of the other par- 
 ties to the Notes. In support of this argument, the counsel for the tenant 
 rely on the case of Laxton v. Peat, 2 Camp. 185, and on CoUott «. Haigh, 
 
 3 Camp. 281. These cases were decided by Lord Ellenborough, at Nisi 
 Prius ; but the correctness of the decisions has been very much doubted ; 
 and they were overruled, in the case of Fentum v. Pocock, 5 Taunt. 192. 
 In Kerrison v. Cooke, 3 Camp. 362, Gibbs, C. J. says: "I am sorry the 
 term ' accommodation Bill ' ever found its way into the law, or that parties 
 were allowed to get rid of the obligations they profess to contract by putting 
 their names to negotiated paper." In Price v. Edmunds,, 10 B. &. C. 582, 
 Bayley, J. suggest^ though he does not decide the point, that a party, by 
 
566 , PROMISSORY NOTES. [CHAP. IX. 
 
 [After actions are brought against separate parties to a Note, 
 payment of the Note and costs in one action will not, per se, 
 operate as a discharge of the other party, but he is still liable 
 for costs.^] 
 
 §423. Thirdly, the effect of a release or discharge of any 
 
 signing a Note, as joint maker, renders himself, subject to all the liabilities 
 of a joint maker. And Parke, J. says, that the decision in Fentum v. 
 PoGock, where it was held that the acceptor of an accommodation Bill 
 was not discharged by giving time to the- drawer, was good sense and good 
 law. From these cases it appears that the weight of authority is against 
 the decisions in Laxton v. Peat, and CoUott v. Haigh. But it is not incum- 
 bent on us to decide between these conflicting authorities, in the present 
 case. For we think there is no proof that the plaintiffs had notice that 
 these Notes were accommodation Notes." .4nie, §§ 413, 418. There may, 
 however, be ground for a distinction between parties to an accommodation 
 Bill or Note, and other parties, under peculiar circumstances. Thus, where 
 both acceptor and indorser are accommodation parties to the same Bill.^for 
 the sole accommodation of the drawer, each being fully cognizant of all 
 the facts, and the indorser, upon a dishonoi- of the Bill and due notice, 
 takes it up, and then the drawer, becoming insolvent, assigns his property 
 for the benefit of his creditors, and thereby provides a preference and 
 indemnity for the indorser against his liability on the Bill, and the assignee 
 has sufficient funds in his hands to pay the whole debt, if the indorser 
 becomes a party to the sissignment, he will thereby release the acceptor ; 
 for it is the same as if the indorser had the funds in his own hands for the 
 payment of the Bill. Story on Bills, § 433 ; Bradford v. Hubbard, 8 Pick. 
 156. See also Chitty on Bills, ch. 9, pp. 450-452 (8th edit.). This same 
 doctrine may also apply to Promissory Notes under certain circumstances, 
 mutatis mutandis, where the maker and one or more of the indorsers are 
 mere accommodation parties for another indorser. The case of Ruggles v. 
 Patten, 8 Mass. 480, went further ; and it was held, in that case, that the 
 holder's receiving part payment from one joint maker of a Note, and 
 thereupon agreeing to acquit all the other makers, did not operate as a 
 discharge of the latter. This, probably, was upon the ground, that there 
 was no sufficient consideration for the agreement, and it was not a release 
 under seal ; but no reasons are assigned by the Court. See Story on Bills, 
 § 431, and cases there cited. Ante, § 414. See also Thomson on Bills, ch. 
 6, § 5, pp. 541 - 543 (2d edit.). 
 
 ' Goodwin v. Cremer, 16 Eng. Law & Eq. 90, and Bennett's note ; Ran- 
 dall V. Moon, 14 Id. 243. But such payment may be received in full dis- 
 charge of all causes of action. See Thame v. Brait, 12 Queen's Bench, 
 808; Jones v. Broadhnrst, 9 C. B. 173; Beaumont v. Greathead, 2 C. B. 
 494. , 
 
CHAP. IX.] MATTERS OP DEFENCE AND DISCHARGE. 567 
 
 party to- the Note by the holder. If the holder should re- 
 lease or discharge any antecedent party upon the Note, that 
 would operate as a discharge of all the subseqilent parties or 
 indorsers on the Note ; for, otherwise, the remedy of the sub- 
 sequent parties over against the released party would, upon 
 payment by them, be gone, or, if they could recover the 
 same, the release to the antecedent party would become vir- 
 tually inoperative by the act of the holder.^ But a release 
 by the holder to the payee would not discharge the maker, 
 nor a release to a subsequent indorser discharge a prior one, 
 upon the plain ground, that the release does not change the 
 rights of the maker or indorser, since, upon payment, neither 
 of them could have recourse over against the released party .^ 
 Nor would it make any difference in the case, that the re- 
 leased party was, in point of fact, the party ultimately bound 
 to pay the Note,".and that the other party was a mere accom- 
 modation maker, payee, or indorser, for his benefit ; or, at 
 least, it would not make any difference, unless the fact 
 of its being such accommodation Note were, at the time of 
 receiving the Note, and not merely at the time of the release, 
 known to the holder ; ^ for, otherwise, he has a right to pre- 
 
 ' ^nte, §408; Bayley on Bills, ch. 9, pp. 339-344 (5tli edit.) ; Smith 
 V. Knox, 3 Esp. 46 ; Thomson on Bills, ch. 6, § 5, pp. 532-537 (2d edit.) ; 
 Brown v. WUliams, 4 Wend. 360 ; Tombeckbe Bank v. Stratton, 7 Wend. 
 429 ; Story on Bills, § 428 ; Chitty on Bills, ch. 9, pp. 443, 445, 450 - 453 
 ^Sth edit.) ; Id. pp. 454, 456 ; Claridge v. Dalton, 4 M. & S. 232 ; Ellison 
 V. Dezell, 1 Selw. N. P. 372 ; Commercial Bank v. Cunningham, 24 Pick. 
 270, 275. 
 
 ' Bayley aji Bills, ch. 9, pp. 338 - 344 (5th edit.) ; Smith u. Knox, 3 
 Esp. 46 ; English v. Darley, 2 Bos. & Pull. 62; Chitty on Bills, ch. 9, pp. 
 451 -453 (8th edit.) ; Thomson on Bills, ch. 6, § 5, pp. 539, 540 (2d edit.) ; 
 Carstairs v. KoUeston, 5 Taunt. 551 ; Harrison v. Courtauld, 3 B. &. Ad. 
 37 ; Story on Bills, §§ 432, 433 ; Fentum v. Pocock, 5 Taunt. 192 ; Tom- 
 beckbe Bank v. Stratton, 7 Wend. 429 ; Bank of U. States v. Hatch, 6 
 Peters, 250 ; Bank of Ireland v. Beresford; 6 Dow, 234 ; Abat v. Holmes, 
 3 Miller, 351 ; Lynch v. Reynolds, 16 John. 42 ; Story on Bills, § 428 ; 
 White V. Hopkins, 3 Watts & Ser. 99 ; Farmers' Bank v. Bathbone, 26 
 Verm. 32. 
 
 ' Ibid. ; Bayley on Bills, ch. 9, pp. 338, 339 (5th edit.) ; Laxton v. Peat, 
 
568 PEOMISSOKY NOTES. [CHAP. IX. 
 
 sume that the liability of all the parties is precisely that 
 which is apparent upon the face of the Note.^ Indeed, there 
 is much reasdn to doubt, upon tlie recent authorities, whether 
 the fact that the Note is an accommodation Note, will, in 
 any .case, vary the rights of the holder ; and whether he may 
 not, in all cases', be entitled to treat all the parties as liable 
 to him, according to their relative positions on the Note, 
 although he may know it to be an accommodation Note.^ 
 
 2 Camp. 185 ; Ex parte Glendinning, 1 Buck, 517 ; Story on Bills, §§ 428, 
 432, 433 : Hall v. Wilcox, 1 Mood. & Rob. 58 ; CoUott v. Haigh, 3 Camp. 
 281 ; Chitty on Bills, eh. 9, pp. 450-453 (5th edit.) ; Thomson on Bills, 
 ch. 4, § 6, pp. 864, 365 (2d edit.) ; Id. ch. 6, § 5, pp. 546, 547 ; Commer- 
 cial Bank v. Cunningham, 24 Pick. 270, 275; ante, § 421. 
 
 ' Ibid. ; Harrison v. Courtauld, 3 B. & Ad. 36 ; Nichols v. Norris, 3 B. & Ad. 
 41, note ; Bayley on Bills, ch. 6, § 1, pp. 166, 167 (5th edit.) ; ante, §§ 418, 421. 
 
 ' See ante, § 418, and note ; Manley u. Boycot, 18 Eng. Law & Eq. 351 ; 
 Smith V. James, Id. 353. In Bennett v. Maule, Gilmer (Va.), 305, the Court 
 held, that where a Note was signed by the maker, for the accommodation 
 of the indorser, and the holder, knowing the fact when he received the 
 Note, released the indorser, the release did not discharge the maker. The 
 same point was decided in Walker v. Bank of Montgomery County, 12 S. & 
 R. 382 ; S. C, 9 S. & R. 229 ; Story on Bills, § 432, and note. Mr. Thomson (on 
 Bills, 6, ch. § 5, pp. 545 - 54 7, 2d edit.) seems to make a distinction between a 
 case where the subsquent parties might have recourse against the prior party, 
 who has got a release or received indulgence from the holder, and a case 
 where they are the very parties for whose accommodation such prior party 
 put his name to the Note, holding, in the former case, that they are dis- 
 charged, and in the latter case, not. Thus, if the holder should release or 
 give time to an accommodation maker, he holds, that it would not discharge 
 the indorser for whose accommodation the Note was given. But he im- 
 mediately afterwards states that the case would be different, if the holder 
 should release or give time to the indorser, for whose' accommodation the 
 Note was made ; for, in this latter case, the accommodation maker would 
 not be discharged, although he knew the Note to be an accommodation 
 Note. It seems diflScult to find any satisfactory reason for such a distinc- 
 tion ; for if the holder's rights are, in the one case, to depend upon the 
 real state of the facts, and not upon the liability of the parties upon the 
 face of the Note, there seems no ground to say that the like rule should 
 not apply to the other. Why should the accommodation maker be held 
 bound, when the indorser, for whose accommodation he signed the'Note, is 
 discharged by the holder, and yet the indorser be held bound, when the 
 accommodation .maker is discharged by the holder? In each case, the 
 
CHAP. IX.] MATTEKS OF DEFENCE AND DISCHARGE. 569 
 
 § 424. It follows, from the foregoing doctrine, that a re- 
 lease of the maker of the Note by the holder will release all 
 
 party who is ultimately to pay the Note is the indorser. Mr. Thomson 
 seems to have struggled to reconcile the cases upon the subject. If the 
 party who is ultimately to pay ought to be held liable, notwithstanding the 
 discharge of the accommodation party, and thus we are to go behind the 
 face of the instrument, the rule ought to be strictly followed out in both 
 cases. Mr. Thomson (pp. 545-547) says: "What has been now stated 
 assumes that the subsequent parties to a Bill or Note have recourse against 
 the prior party, who has got a release, or received indulgence from the 
 holder, and that their recourse is presumed to have been thereby injured. 
 But when they have no such recourse, though entitled to it, ex facie, of the 
 Bill or Note, they cannot plead that they are released, because the pre- 
 sumption of injury is then done away. For instance, the drawer of a Bill 
 accepted merely for his accommodation, and without effects of his in the 
 acceptor's hands, cannot plead that he is discharged by the holder giv- 
 ing time to the acceptor. It has been also found, that such a proceeding by 
 the holder affords no objection against his proving for such a Bill on the 
 drawer's estate. In another case, where the defendants had, to pay the 
 plaintiffs for the price of goods, drawn a Bill in their favor on their own agent 
 in London, who, though he accepted the Bill, did not pay it when due, as 
 he had not then cash belonging to his constituents, but only goods, which he 
 could not sell ; it was found, that the plaintiffs did not discharge the defend- 
 ants, by allowing him twice to renew the Bill, without notice to them (al- 
 though he at last failed, with funds of theirs more than sufficient to pay the 
 Bill), seeing that such renewal was in their favor, because he had no funds 
 when the Bill became due, and was, therefore, truly a surety for them. 
 Nor can such objections be pleaded by a subsequent indorser, for whose 
 accommodation a Bill or Note has been accepted or granted, though re- 
 lease or indulgence be given to a prior party. The same rules are applica- 
 ble on this subject which have been explained as to notice or negotiation 
 in similar cases. But it does not follow, that because parties v*o are prin- 
 cipal debtors, ex facie, of a Bill or Note, may be sureties as to other parties, 
 the holder therefore loses his claim against them, as principal debtors, by 
 giving indulgence to the parties for whose accommodation they are bound ; 
 •for example, that the holder of a Bill or Note, accepted or granted for 
 behoof of the payee, forfeits his claim against the acceptor or grantor^ by 
 giving indulgence, or a discharge, without his consent, to the payee. First, 
 there is no ground for such a doctrine, if he is not aware of the true nature 
 of the Bill or Note ; because he is then only bound to look at the relations 
 of the several parties, as they appear ex facie of it. Even' in England, it 
 must be proved that his knowledge of these relations was different from 
 what they appeared to be ; and in Scotland, no evidence would probably 
 be admitted to redargue that arising from the Bill, except his writ or oath. 
 
570 PROMISSORY NOTES. [CHAP. IX. 
 
 the other parties thereto from all liability thereon, and amount 
 to a satisfaction of the Note ; for the maker is the party pri- 
 
 But, secondly, it appears to be now settled, that, although the payee should 
 know the relative situation of parties inter se, he is entitled to rely on their 
 characters, as they appear ex facie of the Bill or Note, and therefore pre- 
 serves his claim at all times against the acceptor or maker, as principal 
 debtor, whether he has given indulgence or not to the other parties, for 
 whose accommodation he became bound. Accordingly, where the holder 
 of a Note, knowing that it was granted for the payee's accommodation, had 
 become bound, on receiving a composition from the payee, not to molest 
 him, it was decided, notwithstanding, that he had not thereby lost his claim 
 against the maker. The same doctrine, as already shown, although at one 
 time doubted, has been settled, regarding the holder's claim against the 
 acceptor of an accommodation Bill, though he has given time to other par- 
 ties on the Bill, who are liable in relief to the acceptor. "In like manner, 
 his releasing or giving indulgence to a subsequent indorser would not cut 
 off his claim against a prior one, although he should be aware that the 
 former, as the party accommodated, was liable, in recourse, to the latter. 
 In all these cases, the claim of recourse does not arise on the face of the 
 Bill or Note, but from an agreement independent of it. But the holder's 
 claim arises from the Bill or Note alone, and therefore, though he should 
 discharge this claim, or give time for the payment of it, he will not thereby 
 discharge or fetter any other party as to the time of enforcing a distinct 
 claim of recourse, independent of the Bill or Note." In another place 
 (ch. 4, § 6, p. 364) he again states : " It was once decided by Lord Ellen- 
 borough, at Nisi Frius, that, when the holder of a Bill knew that it was 
 accepted for the drawer's accommodation, he lost his claim against the 
 defendant (acceptor), by giving the drawer time, after a partial payment, 
 to pay the balance, the case being held the same, with regard to him, as if 
 the Bill had been drawn by the defendant, and accepted by the drawer. 
 But this doctrine was repeatedly questioned in subsequent cases ; and, at 
 last, it was#unanimously overruled by the Court of Common Pleas, who 
 found, that an acceptor is always primary debtor, with reference to the 
 holder, whether the latter knew the Bill to be accepted for the drawer's 
 accommodation or not. The principle of this doctrine, as applied to ac- 
 commodation Bills, appears to be, that the holder is entitled to rely on the 
 different obligants, according to the several characters in which they sign 
 the Bill, and, conseqiiently, to regard the acceptor as primary debtor. It 
 appears, indeed, to have been held, in a subsequent case at Nisi Priu9,that, 
 in such a case, the drawer is to be regarded as principal, and that, there- 
 fore, a discharge to him will release the acceptor, who is only a surety. 
 But this doctrine was only incidentally laid down, and the previous decision 
 seems entitled to more weight. The same doctrine has since been con- 
 firmed. It was alluded to in a case where one of two joint obligants in 
 
CHAP. IX.] MATTERS OF DEFENCE AND DISCHARGE. 571 
 
 marily liable to all the subsequent parties ; and if they were 
 compellable to pay the Note, they would have their remedy 
 over against the maker for the amount, contrary to the true 
 object and import of the release.^ And, upon the principles 
 which have been just alluded to, it would seem to be the 
 better opinion, that his being an accommodation maker would 
 not vary the case as to the indorser, for whose benefit he 
 made the Note, but the latter would be equally discharged 
 from liability as if the maker were the true and primary 
 debtor.2 * 
 
 § 425. A release of one joint maker, or indorser, by the 
 holder, whether they are accommodation parties or not, will 
 discharge all the joint parties ; for such a release is a com- 
 plete bar to any joint suit, and no separate suit can be main- 
 
 a Note, maintaining that he was surety for the other, pleaded that he was 
 released, because the plaintiff had given time to the other obligant, the 
 Court being inclined to hold that the plaintiff was a principal, and could 
 not be released even by giving time, though they decided that, under the 
 circumstances, no time had been given. It has been also held, that the 
 circumstance of a drawer of a Bill, accepted for his accommodation, pay- 
 ing part of it to the indorsee, and giving him a new Bill for the balance, 
 but without getting up the former Bill, did not discharge the other Bill, or 
 release the acceptor. There was here no giving of time on the old Bill, 
 but though there had been, and though the holder had known that the Bill 
 was an accommodation, this, according to the cases already noticed, would 
 have made no difference. In another case, where the holder of an accom- 
 modation Bill did not know, when he took it, that^it had been accepted for 
 the drawer's accommodation, but was told afterwards, and thereafter made 
 an agreement with the drawer's assignees, under which he discharged the 
 drawer, on obtaining a certain assignment, &c., he was found, notwithstand- 
 ing, to have a good action against the acceptor. The authority of a pre- 
 vious decision was here disputed, on the ground of a dictum of Lord Eldon, 
 when he decided against that case, and reference was also made to another 
 case, where the Court had waived the point. But, on the other hand, ref- 
 erence was made to another case, where the doctrine now stated was con- 
 firmed, although the holder of a Note knew all along that it had been stated 
 as a security, and, on the whole, the Court held that the acceptor was not 
 discharged." 
 
 » Ante, §§ 418, 421, 423. 
 
 ' Ante, §§ 418, 421, 423. See Chitty on Bills, oh. 9, p. 452 (8th edit.) ; 
 Maltby v. Carstaira, 7 B. & C. 735. 
 
572 PKOMISSORY- NOTES. [CHAP. IX. 
 
 tained in such a case.^ In short, when the debt is extin- 
 guished, as to one, it discharges all, whether the parties 
 intended it or not.^ The like rule applies to cases where a 
 satisfaction has been made by any one joint maker or in- 
 dorser, or by any one partner in two firms, where each firm 
 is bound upon the Note.^ So, the taking of the separate 
 
 ' Chitty on Bills, ch. 9, pp. 449, 450 (8th edit. 1833) ; Bayley on Bills, 
 ch. 9, pp. 342 - 344 (5tli edit. 1830) ; 1 Story, Eq. Jur. §112; Westoott v. 
 Price, Wright, 220 ^Nicholson v. Kevill, 4 A. & El. 675 ; Stirling v. For- 
 rester, 3 Bligh, 575 ; Chetham v. Ward, 1 Bos. & Pull. 630 ; Brooks v. 
 Stuart, 9 A. & El. ^54 ; American Bank v. Doolittle, 14 Pick. 123 ; Averill 
 . V. Lyman, 18 Pick. 346 ; Tuckerman v. Newhall, 17 Mass. 581 ; Goodnow 
 V. Smith, 18 Pick. 414, 415 ; Wiggin v. Tudor, 23 Pick. 434 ; Carnegie v. 
 Morrison, 2 Met. 381 ; Ward v. Johnson, 13 Mass. 148; Rowley v. Stod- 
 dard, 7 John. 207 ; Harrison v. Close, 2 John. 448 ; Story on Bills, p. 431 ; 
 post, § 435. 
 
 = Ibid. 
 
 » Bayley on Bills, ch. 9, p. 322 (5th edit. 1830) ; Jacaud v. French, 12 
 East, 317; Pothier, on Oblig. n. 261, 274; 1 Story, Eq. Jurisp. § 112; 
 Nicholson v. Revill, 4 A. & El. 675. In this case, Lord Denman, in deliver- 
 ing the judgment of the Court, said : " We give our judgment merely on 
 the principle laid dovfn by Lord Chief Justice Eyre in Cheetham v. Ward, 
 as sanctioned by unquestionable authority, that the debtee's discharge of 
 one joint and several debtor is a discharge of all. For we think it clear 
 that the new agreement made by the plaintiff with Samuel Bevill, to receive 
 from him £100, in full payment of one of the three Notes, and in part pay- 
 ment of the other two, before they became due, accompanied with the 
 erasure of his name from those two Notes, and followed by the actual 
 rpceipt of the £100, was, in law, a discharge of Samuel Revill. This view 
 cannot, perhaps, be made entirely consistent with all that is said by Lord 
 Eldon in the case Ex parte Gifford, where his lordship dismissed a petition 
 to expunge the proof of a surety against the estate of a co-surety. But 
 the principle to which we have adverted was not presented to his mind in 
 its simple form ; and the point certainly did not undergo much considera- 
 tion. For some of the expressions employed would seem to lay it down 
 that a joint debtee might release one of his debtors, and yet, by using some 
 language of reservation in the agreement between himself and such debtor, 
 keep his remedy entire against .the others, even without consulting them. 
 If Lord Eldon used any language which could be so interpreted, we must 
 conclude that he either did not guard himself so cautiously as he intended, 
 or that he did not lend that degree of attention to the legal doctrine con- 
 nected with the case before him which he was accustomed to afford. We 
 
CHAP. IX.], MATTERS OF DEFENCE AND DISCHARGE. 573 
 
 security of one partner by the holder, in discharge of the 
 joint debt, will discharge the other partners.^ But a mere 
 agreement with one partner to give him time, taking his 
 exclusive security for the payment of the Note, altl^pugh 
 founded upon a valuable consideration, will not discharge 
 the other partners, if it be with an express reservation of the 
 rights of the holder against the partnership, for the payment 
 of the Note.^ A fortiori, an agreement, not founded upon 
 any valuable consideration, to take one partner as debtor for 
 the whole debt due by the partnership, will not exonerate 
 the latter.^ Neither (as we have seen) will a covenant not 
 to sue on.e joint contractor or partner on the Note operate as 
 a discharge of the other co-contractors or partners ; for this 
 is a mere personal covenant, and does not, like a release, ex- 
 tinguish the debt.* We shall have occasion to see, that the 
 doctrine of the French law, as to the effect of the release of 
 one joint maker or indorser is, in its qualifications and modi- 
 fications, somewhat different from our law.^ 
 
 § 426. Fourthly. Upon analogous grounds with those 
 above stated, if the holder should make a valid composition 
 with the maker, whereby he should agree to take a certain 
 per cent of the amount in discharge of the Note, upon his 
 receiving collateral security from a third person for the com- 
 position money, and the security should be accordingly 
 
 do not find that any other authority clashes with our present judgment, 
 which must be in favor of the defendant." See also French v. Price, 24 
 Pick. 13 ; Hammatt v. Wyman, 9 Mass. 138. 
 
 ' Bedford v. Deakin, 2 B. & Aid. 210, 216 ; Evans v. Drummond, 4 Esp. 
 89 ; Reed v. White, 5 Esp. 122. 
 
 ' Clytty on Bills, ch. 9, p. 449 (8th edit. 1833) ; Bedford v. Deakin, 2 B. ■ 
 & Aid. 210; Lodge v. Dicas, 3 B. & Aid. 611 ; David v. EUioe, 5 B. & C. 
 196 ; Pitman on Principal and .Surety, pp. 181, 182, where the cases are 
 collected; Crawford v. Millspaugh, 13 John. 87. 
 
 ' Lodge V. Dicas, 3 B. & Aid. 611. See also David v. EUice, 5 B. 8e C. 
 196 ; Perfect v. Musgrave, 6 Price, 111. 
 
 ' Chitty on Bills, ch. 9, p. 449 (8th edit. 1833) ; Dean v. Newhall, 8 
 Term, 168 ; Twopenny v. Young, 3 B. & C. 208 ; Mallet v. Thompson, 
 5 Esp. 178 ; ante, §§ 409, 421, 425. 
 
 » iPosi, §§430-435. 
 
574 PROMISSORY NOTES. [CHAP. IX. 
 
 given, that would amount to a discharge of the Note in favor 
 of the indorser, whether he was an accommodation indorser 
 or not ; for, in contemplation of law, it would amount to an 
 extinguishment and satisfaction of the Note as to all the par- 
 ties thereto.^ The same doctrine would apply to the case of 
 a like composition made by the holder with a prior indorser, 
 [unless there be a reservation of the remedy against other 
 parties ; ^j for he would thereby release all the subsequent 
 
 * Lewis V. Jones, 4 B. & C. 506; Steinman v. Magnus, 11 East, 390; 
 Margetson v. Aitken, 3 C. &. P. 338 ; Story on Bills, § 429 ; Chitty on 
 Bills, ch. 9, pp. 455, 456 (Sth edit.) ; Ex parte Wilson, 11 Ves. 410 ; Ells- 
 worth V. Fogg, 35 Verm. 355 ; Bowker v. Childs, 3 Allen, 434. 
 
 ' [Sohier D. Loring, 6 Cush. 537. Metcalf, J., said: "It is settled, in 
 England, that a discharge, or giving time, by a creditor to his principal 
 debtor, will not discharge the .surety, if there be an agreement between 
 the creditor and the principal debtor that the surety shall not be discharged. 
 And this rule of law is applicable to parties to Bills of Exchange and 
 Promissory Notes, who are liable only on the failure of prior parties, though 
 they are not technically sureties of those parties. 1 Steph, N. P. 936 ; 
 Montagu on Composition, 36 ; Burge on Suretyship, 210 ; Chitty on Bills 
 (10th Amer. ed.), 420 ; Byles on Bills (2d Amer. ed.), 202. See also 
 Mallet V. .Thompson, 5 Esp. 178. The same doctrine was advanced by 
 Messrs. Hamilton and Biker, in argument, and was recognized by the 
 Supreme Court of New York, in Stewart v. Eden, 2 Caines, 121, very 
 soon__afler it had been laid down by Lord Eldon, in Ex parte GifiFord, 6 
 Ves. 805. In this last case. Lord Eldon said sureties would not be dis- 
 charged by a discharge of the principal, if there was ' a reserve of the 
 remedy ' against the surety, and that Lord Thurlow had so admitted in a 
 previous case not reported. He afterwards laid down this principle more 
 authoritatively, in Boultbee v. Stubbs, .18 Ves. 20, and Ex parte Carstairs, 
 1 Buck, 560. In Ex parte Glendinning, 1 Buck, 517, he said: 'If a man 
 by deed agree to give his principal debtor time, and in the deed expressly 
 stipulate for the reservation of all his remedies against other persons, they 
 shall still remain liable, notwithstanding the arrangement between their 
 principal and the creditor.' 
 
 " In Nichols V. Norris, 3 B. & Ad. 41, the Court of King's Bench decided 
 that a composition like that in the present case, made with the indorser of 
 a Note given for his accommodation, did not discharge the maker. It was 
 said by the Court, that such composition deeds were very common, and 
 that the special proviso took the case out of the common rule as to the dis- 
 charge of sureties by giving time to the principal. 
 
 " In 1846, the case of Kearsley v. Cole, 16 M. & W. 128, came before 
 
CHAP. IX.] MATTERS OP DEFENCE AND DISCHARGE. 575 
 
 indorsers, in the same manner as if such prior indorser had 
 ^aid the Note to the holder, which would plainly be a satis- 
 
 the Court of Exchequer. That was an action for money paid for the 
 defendant, for whom the plaintiff had been surety. The defence was, that 
 the defendant had made an assignment to his creditors, who had covenanted 
 not to sue him. But it appeared that there was a proviso in the deed of 
 assignment, that any creditor might execute it without prejudice to any 
 specific lien or security, or to any claim against any surety, and that this 
 proviso was inserted with the knowledge and consent of the plaintiff. He 
 was afterwards called on as surety of the defendant, and paid the claim. 
 The question was, whether this payment was to the use of the defendant, 
 or wjis a voluntary payment, which gave him no right to reimbursement. 
 The Court held, that the plaintiff was. entitled to recover ; he not having 
 been discharged from his suretyship by the deed of assignment. The opin- 
 ion of the Court was given by Mr. Baron Parke, who fully and clearly 
 stated the decisions, and the principles upon which they were madAas fol- 
 lows : ' The question is, what is the effect of a discharge with reserve of 
 remedies consented to by the surety ? We do not mean to intimate any 
 doubt as to the effect of a reserve of remedies without such consent ;.and 
 the cases are numerous that it prevents the discharge of a surety, which 
 would otherwise be the result of a composition with, or giving time to, a 
 debtor, by a binding instrument ; and the reserve of remedies has that 
 effect upon this principle, — first, that it rebuts the implication that the 
 surety was meant to be discharged, which is one of the reasons why the 
 surety is ordinarily exonerated by such a transaction ; and, secondly, that 
 it prevents the rights of the surety against the debtor being impaired, 
 — the injury of such rights being the other reason; for the debtor can- 
 not complain if, the instant afterwards, the surety enforces those rights 
 against him ; and his consent that the creditor shall have recourse against 
 the surety is, impliedly, a consent that the surety shall have recourse 
 against him. This is the effect of what Lord Eldon says, in Ex parte 
 Gifford, and Boultbee v. Stubbs, as to the reserve of remedies ; and the 
 general proposition, that, withtthat recourse, the composition or giving time 
 does not discharge the surety, is supported by those and the following 
 cases : Ex parte Glendinning ; Nichols v. Norris ; Smith v. Winter, 4 M. 
 & W. 454, and others. This point must, therefore, be considered as settled. 
 Some remarks have, indeed, been made by Lord Denman, in the case of 
 Nicholson v. Kevill, 4 A. & EI. 675, on the doctrine of Lord Eldon, in Ex 
 parte Gifford, throwing doubt on its correctness, on the supposition that Lord 
 Eldon had held that a creditor could release one joint and several debtor, 
 and hold another liable by a reserve of remedies ; which would certainly 
 be against the decision in Cheetham v. Ward, 1 Bos. & Pull. 630, unless 
 the instrument of release could, by reason of the context, be construed to 
 be a covenant not to sue, as it was in the case of Solly v. Forbes, 2 Brod. 
 
576 PROMISSORY NOTES. [CHAP. IX. 
 
 faction thereof in their favor.^ But the indorsers of the Note, 
 who stand prior on the Note to the compounding indorser, 
 would remain liable, in the same manner as if no such com- 
 position had been made, since their rights are not affected 
 thereby.^ 
 
 § 427. Perhaps it is questionable, eren if the holder has 
 the consent of the other parties, that he may accept the com- 
 position, and hold them liable without resorting to the com- 
 pounding creditor, whether he will not still be deprived of 
 his remedy against them, if the composition operates as a re- 
 lease of the debt, inasmuch as it will be a fraud upon the 
 other creditors, if they have supposed that they had contracted 
 with each other on equal terms.* 
 
 & Bin^38. But we consider it clear that Lord Eldon meant only to apply 
 the doctrine to cases where there was no release, but a composition, or 
 giving time, not amounting to a release, which is the present case ; and, 
 with reference to it, the rule laid down by Lord Eldon is not impeached by 
 Lord Denman's remarks.' And the decision of the Court was, that the 
 surety's consent to the creditor's reserve of their remedy against him did 
 not alter the law of the case in favor of the principal."] 
 
 1 Ellison V. Dezell, 1 Selw. N. P. 372 ; ante, § 423 ; Story on Bills, § 429; 
 Chitty on Bills, ch. 9, pp. 455, 456 (8th edit.). 
 
 ' Story on Bills, § 429 ; Chitty on Bills, ch. 9, p. 456 (8th edit.) ; Id. 
 pp. 452, 453 ; Maltby v. Carstairs, 7 B. & C. 735. 
 
 » Chitty on Bills, ch. 9, pp. 454, 455 (8th edit. 1833) ; Ex parte Wilson, 
 11 Ves. 410 ; Lewis v. Jones, 4 B. & C. 506 ; English v. Darley, 2 Bos. & 
 Pull. 61 ; Exparte Smith, 3 Bro. Ch. 1 ; Howden v. Haigh, 11 A. & El. 
 1033 ; Story on Bills, § 429. The learned Reporters have appended the 
 following note to the case of Lewis v. Jones, 4 B. ,& C. 515, note (a) : 
 " Generally speaking, a creditor discharges |, surety by giving time to, or 
 compounding with, the principal debtor. The cases upon this subject may. 
 be divided into two classes ; the first, where the agreement with the princi- 
 pal may be considered as a fraud upon the surety, by altering his situation 
 or increasing his risk. Such were the cases of Nisbet v. Smith, 2 Bro. Ch. 
 579 ; Ex parte Smith, 3 Bro. Ch. 1 ; Rees v. Berrington, 2 Ves. 540 ; Law 
 V. East India Company, 4 Ves. 824 ; Eyre v. Bartrop, 3 Mad. 221. The 
 second, where allowing the creditor to recover against the surety would 
 operate as a fraud upon the principal, or any person joining with him in 
 paying or securing the composition money, inasmuch as it would give the 
 surety a right to proceed against the principal for that debt, from which 
 the creditor had agreed to discharge him. English v. Darley, 2 Bos. & 
 
CHAP. IX.] MATTERS OP DEFENCE AND DISCHARGE. 577 
 
 § 428. Fifthly. The discharge of a party, whether he be 
 the sole or a joint maker or indorser of a Note, under an in- 
 
 PuU. 61 ; Burke's Case, there cited by Lord Eldon ; Ex parte Gifford, 6 
 Ves. 805 ; Boultbee v. Stubbs, 18 Ves. 20 ; Ex parte Glendinning, Buck, 
 617. It is obvious, that the first ground of discharge is inapplicable, where 
 the agreement between the creditor and principal debtor is made with the 
 privity and assent of the surety ; and it seems that the second is inapplica- 
 ble, where the surety becpmes a party to the transaction in such a manner 
 as to deprive himself of any remedy over against the principal, in the event 
 of his being called upon to pay the residue of the debt. Where a surety 
 compels the creditor to sue, or prove under a commission of bankruptcy 
 against the principal, he is considered as electing to stand in the situation 
 of the creditor with respect to the remedy against the principal, and in 
 order to do so must bring the debt into court. Beardmore v. Cruttenden, 
 Cook, Bankr. Laws, 211 ; Dictum per Lord Chancellor in Wright u.'Simp- 
 son, 6 Ves. 734. Hence it may follow, that, if a creditor, at the request of 
 the surety, and for his relief, agrees to accept a composition from the prin- 
 cipal, the surety would be considered as electing to stand in the situation of 
 the creditor, and that he could not recover over against the principal upon 
 being compelled to pay the residue of the debt. In Ex parte Glendinning, 
 Buck, 517, the Lord Chancellor is reported to have said, that a creditor, 
 entering into an agreement for a composition with a debtor, and wishing 
 to retain his remedy against a surety, must cause the reservation to appear 
 upon the face of the agreement, for that parol evidence cannot be admitted 
 to explain or vary the effect of the instrument. If that observation is to 
 be construed generally, it will greatly simplify questions upon this subject ; 
 for then, wherever a creditor and principal debtor have entered into an 
 agreement for a composition, not containing a reservation of the remedy 
 against a surety, and an action is afterwards brought against the latter, it 
 will be unnecessary to inquire, whether he was or was not privy and con- 
 senting to the agreement, or whether he has or has not done anything to 
 deprive himself of the right to recover over against the principal ; if he has 
 not, he will be absolutely discharged by the agreement entered into be- 
 tween the creditor ajid the principal debtor. But the judgment in Ex parte 
 Glendinning appears to be founded upon Burke's Case, which is also cited 
 by the Lord Chancellor in Ex parte Gifford, 6 Ves. 809, as an authority for 
 saying, that where the remedy against the surety is reserved, in the agree- 
 ment for composition, a recovery against the surety cannot operate as a 
 fraud upon the principal ; for that, if any demand out of that recovery arises 
 against him, it is with his own consent. Perhaps, therefore, the observation 
 in Ex parte Glendinning was intended to apply to those cases only, where, 
 but for the reservation in the agreement, the proceeding against the surety 
 would operate as a fraud upon the principal, and parol evidence may still 
 
578 PEOMISSOKY NOTES. [CHAP. IX. 
 
 solvent or bankrupt act, will not operate to discharge any 
 other party on the Note from his liability thereon ; but it 
 will merely operate as a bar or discharge oi" the insolvent or 
 bankrupt personally.^ The reason is, that it is an act of the 
 law, and not of the holder, and operates upon him in invitum. 
 And the holder's proving his debt, or receiving a dividend 
 under such insolvent or bankrupt act, will operate only to 
 discharge the other parties, pro tanto, leaving in all other 
 respects their liability in full vigor and efficacy.^ 
 
 § 429. Hitherto we have been considering what will 
 amount to an extinguishment, or satisfaction, or discharge 
 of a Promissory Note, and between what parties it will be 
 operative or not, according to the requirements of our law. 
 
 be admissible to show, that the composition yraa made with the privity and 
 at the request of a surety, and that he has deprived himself of any right to 
 recover over against the principal ; for such evidence would leave the 
 written instrument (according to its import) a discharge to the principal, 
 and would not contradict it, unless, indeed, it be so framed as to extinguish 
 the debt. There is another large class of cases, in which it has been held, 
 that a person joining other creditors in compounding with a debtor, or 
 signing a bankrupt's certificate, cannot lawfully stipulate for any benefit to 
 himself beyond that which the other creditors receive ; whether 'that ben- 
 efit be given by the debtor himself, or any third person for his relifef. Smith 
 V. Bromley, 2 Doug. 695 ; Cecil v. Plaistow, 1 Anstr. 202 ; Cockshott v. 
 Bennett, 2 Term, 763 ; Jackson v. Lomas, 4 Term, 166 ; Feise v. Bandall, 
 6 Term, 146 ; Jackman v. Mitchell, 13 Ves. 581 ; Leicester v. Rose, 4 East, 
 372; Wells v. Girling, 1 Brod. & Bing. 447; Jackson v. Davidson, 4 B. & 
 Aid. 691. But all those decisions related to new securities given as a con- 
 sideration for signing the composition deed or certificate, and proceeded 
 on the ground, that the advantage gained by the particular creditor was a 
 fraud upon the others, and they do not appear applicable to securities exist- 
 ing before the negotiation for a composition. See Thomas v. Courtenay, 1 
 B. & Aid. 1." 
 
 * Bayley on Bills, ch. 9, pp. 336, 346 (5th edit.) ; ante, § 407, and note ; 
 Thomson on Bills, ch. 6, § 5, pp. 535-537 (2d edit.) ; McDonald v. Bov- 
 ington, 4 Term, 825 ; Todker v. Bennett, 3 Caines, 4 ; English v. Darley, 
 2 Bos. & Pull. 6'2 ; Ward v. Johnson, 13 Mass. 148 ; Chitty on Bills, ch. 9, 
 pp. 454-456 (8th edit.) ; Stock v. Mawson, 1 Bos. & Pull. 286 ; Pothier 
 De Change, n. 179 ; Story on Bills, § 435. 
 
 " Bayley on Bills, ch. 9, p. 346 (5th edit.) ; Kenworthy v. Hopkins, 1 
 John. Cas. 107 ; Burrill v. Smith, 7 Pick. 291. 
 
CHAP. IX.] MATTERS OF DEFENCE AND DISCHARGE. 679 
 
 But it may not be ■without some practical utility to examine 
 how these matteVs are treated in the foreign law, and espe- 
 cially in the French law, which may be presumed generally, 
 on these points, to coincide with laws of the other commercial 
 States of Continental Europe.^ And here, as indeed in most 
 other cases, we are compelled to resort to the analogies fur- 
 nished by Bills of Exchange ; for the foreign writers rarely 
 treat at any length the subject of Promissory Notes ; but they 
 leave us to infer the rules, which are to govern them, from 
 the known doctrines applicable to Bills. 
 
 § 430. In the first place, in respect to the maker of a Note. 
 By the old law of France, as stated by Pothier (and the 
 doctrine on this point does not seem to have undergone any 
 change since his day), whenever the holder has discharged 
 or released the maker of a Promissory Note from the debt, 
 that will (as in our law) operate as an extinguishment there- 
 of, as to him, whether it is done before or after the maturity 
 of the Note.^ If the discharge or release be by a letter, with- 
 out a surrender of the Note, and the holder should never- 
 theless afterwards pass it by indorsement to a third person, 
 bona fide for a valuable consideration, the latter will be en- 
 titled to recover it against the maker, upon the ground, cer- 
 tat de damno vitando. Pothier proceeds to put the case 
 (which has since arisen under another branch of our law),^ 
 at what time a discharge or release, sent by a letter, tak«s 
 efifect, as between the parties ; and he says, that, as it re- 
 quires the consent both of the creditor (the holder) and the 
 debtor (the maker) to give effect to the discharge or release 
 by the acceptance of the letter, it follows, that, until the let- 
 ter is received and the acceptance given, the discharge or 
 
 • See Thomson on Bills, ch. 5, § 4, pp. 394, 395 (5th edit). 
 
 ' Pothier, De Change, n. 176; Story on Bills, §437; Nouguier, De 
 Change, Tom. 1, pp. 353, 354. 
 
 * See Story on Contracts, § 84, and note ; Adams v. Lindsell, 1 B. & Aid. 
 681 ; McCuUoch v. Eagle Ins. Co. 1 Pick. 278 ; Mactier v. Frith, 6 Wend. 
 103 ; Averill v. Hedge, 12 Conn. 424 ; Story on Agency, § 493, and 
 note. 
 
580 PEOMISSORY NOTES. [CHAP. IX. 
 
 release is not effectual or absolute, but is revocable ; and 
 that, if either party should die before the letter is received, 
 the discharge or release becomes a nullity.^ 
 
 § 431. In the next place, in respect to the indorsers of a 
 Promissory Note, a discharge or release of the maker by the 
 holder will, by the French law generally (as it does by our 
 law), operate as a discharge and extinguishment of their lia- 
 bility upon their indorsements ; for in such q, case the indors- 
 ers would otherwise either be deprived of all their remedy 
 over against the maker for repayment, or he would be de- 
 prived of the benefit of his discharge.^ But in every such 
 case the discharge or release must, to have this effect, be 
 purely voluntary, and not be forced upon the holder by the 
 operation of law.^ If the discharge or release has been for a 
 part only of the debt, then it will operate, as to the indorsers, 
 as a discharge only pro tanto.^ 
 
 § 432. A distinction, however, seems to be taken, in the 
 French law, between the case of a discharge or release, given 
 before the maturity of the Note, and one given after the 
 maturity, dishonor, and due protest and notice thereof, as to 
 its effect upon the indorsers. In the former case, the indors- 
 ers are positively discharged, since the maker can never be 
 deemed in default for not paying the Note, and it cannot be 
 treated as dishonored ; and therefore the indorsers cannot be 
 liable on their indorsements.^ In the latter case, their lia- 
 bility will depend upon circumstances. If the maker is a 
 mere accommodation maker, then the discharge or release 
 will not operate to discharge any indorser, for whose accom- 
 modation the Note was given ; but it will discharge the other 
 indorsers.^ 
 
 1 Pothier, De Change, n. 176 ; Pothier, De Vente, n. 32. 
 '^ Pothier, De Change, n. .178 ; Story on Bills, § 437. 
 " Pothier, De Change, n. 179 ; Story on Bills, § 437. 
 * Pothier, De Change, n. 178-180 ; Story on Bills, § 437. 
 ' Pothier, De Change, n. 177 ; Story on Bills, § 437. 
 ° Pothier, De Change, n. 178; Story on Bills, § 437. Pothier merely 
 puts the case of a discharge of the acceptor of a Bill by the holder, and 
 
CHAP. IX.] MATTERS OF DEFENCE AND DISCHARGE. 581 
 
 § 433. In the next place, as to the release or discharge of 
 the indorser by the holder. Pothier says, that, in such a 
 case, the maker, if he be a mere accommodation maker for 
 the indorser, will be discharged thereby ; for otherwise, the 
 indorser would be deprived of the benefit of the discharge, 
 since, upon payment by the maker, the latter would have 
 recourse for the amount against him.^ But he seems to 
 think, that there is more difficulty in the case, where the 
 maker is the primary and real debtor ; although he finally ar- 
 rives at the conclusion^ that in such a case the maker would 
 not be discharged, but that it is a mere personal discharge of 
 the indorser.^ This latter position is the clear resjilt in our 
 law, as has been already stated.^ 
 
 § 434. Where a prior indorser is released or discharged by 
 the holder, Pothier says (in entire conformity with our law) 
 that this will discharge all the subsequent indorsers ; for 
 otherwise the prior indorser would be liable to the subsequent 
 indorsers, and thus he would lose the benefit of his discharge 
 by the holder.* On the other hand, a discharge of a subse- 
 qtient indorser by the holder will not; where it is purely per- 
 sonal, discharge any of the antecedent indorsers, or the 
 maker of the Note ; since the holder, who has dififerent 
 rights against the different parties, may well, in such a case, 
 discharge some, and hold the others bound to him.^ 
 
 § 435. In respect to a release or discharge of one joint 
 debtor by the holder, how far it will discharge the others, 
 Pothier holds the following doctrine : That the release of 
 
 asserts that it will discharge the drawer only when he has funds in the 
 hands of the acceptor, and the latter is not a mere accommodation acceptor. 
 But as to the indorsers, he holds them discharged generally. 
 
 • Pothier, De Change, n. 180; Story on Bills, §§ 437, 438. We have 
 seen that upon this very point there is some contrariety of opinion in the 
 Common-Law authorities. Ante, § 423 ; Thomson on Bills, ch. 4, § 6, 
 p. 364 (2d edit.) ; Id. ch. 6, § 5, pp. 545 - 547 ; Story on Bills, § 432. 
 
 2 Pothier, De Change, n. 181 ; Story on Bills, § 438. 
 
 ' Ante, § 423. 
 
 ' Pothier, De Change, n. 182 ; Story on Bills, § 438 ; ante, § 423. 
 
 * Pothier, De Change, n. 183 ; Story on Bills, § 439 ; ante, § 423. 
 
582 PROMISSORY NOTES. [CHAP. IX. 
 
 the creditor to one of the debtors would also liberate the 
 others, if it appeared that the creditor intended thereby to 
 extinguish the debt as to the "whole. If it appeared that his 
 intention was only to extinguish the debt, as to the part for 
 which the person, to whom he gave the release, was liable to 
 his co-debtors, and to discharge that one personally from the 
 residue of the debt, the debt would still continue to subsist, 
 as to the residue, against the co-debtors.^ We have already 
 
 * Pothieron Oblig. by Evana, n. 275. Pothier adds: "If the creditor, in 
 the discharge which he gave to his co-debtor, expressly declared that he 
 intended only to discharge the person of the particular debtor, and to retain 
 his claim against the others ; could he, by virtue of this declaration, require 
 the whole from the other debtors, without deducting the part of him who 
 was discharged ? I think he could not ; the several debtors would not have 
 bound themselves in solido, but would only have engaged for their own 
 respective parts, if they had not considered that, on paying the whole, 
 they should have recourse against the others ; and that for this purpose 
 they would be entitled to a cession of the actions of the creditor for the 
 other parts. It is only under the tacit condition of having this cession of 
 the actions, that they are obliged, in solido ; and, consequently, the creditor 
 has no right to demand from any of them the payment of the whole, with- 
 out such cession. In this case, the creditor, having put it out of his power 
 to cede his action against the debtor, whom he has discharged, and conse- 
 quently having incapacitated himself from performing the condition upon 
 which he has a right to demand the whole, it follows, that he cannot de- 
 mand the whole from each of them. When there are several debtors in 
 solido, and the creditor discharges one of them, can he proceed against 
 each of the others in solido, subject only to a deduction of the share of the 
 one who is discharged, and of that proportion to which the one who is dis- 
 charged would be liable, as between themselves, for the share of any of the 
 others, who were insolvent ? For instance, supposing that I had six debt- 
 ors in solido, that I discharged one, that there remained five, of whom one 
 is insolvent ; can I only proceed against each of the others for their sixth 
 part ? Or may I proceed against each of those who are solvent, for the 
 whole, subject only to the deduction of the sixth, for which the person dis- 
 charged was originally bound, and of his share in the portion of the one 
 who had become insolvent ? I think I should be well founded in doing so ; for 
 the debtor against whom I proceed cannot claim from me any other deduction 
 than the amount of what he loses by not having a cession of actions against 
 the one whom I have discharged. Now, the cession of actions against him 
 would only give a right of repetition as to his portion, and a right of con- 
 tribution in respect to the share of the insolvent." Pothier on Oblig. n. 275, 
 by Evans. 
 
CHAP. IX.] MATTERS OF DEFENCE AND DISCHAKGE. 583 
 
 seen that, by our law, a release or discharge by the holder 
 of one joint party, whether he be the maker or the indorser 
 of the Note, is a discharge of both, without any distinction, 
 whether it be the intention of the holder to discharge one 
 only or both ; for, by our law, the debt, independent of any 
 intention of the holder, is extinguished ipso facto as to 
 both.i 
 
 § 436. There are other modes of extinguishment of the 
 debt due upon a Promissory Note, by the French law, which 
 are either not recognized to the same extent, or have not pre- 
 cisely the same effect, under all circumstances, in our law, 
 as they have in that law. Among these we may enumerate, 
 (1.) Compensation ; (2.) Novation ; and, (3.) Confusion. 
 
 § 437. By Compensation, in the French and foreign law, 
 is meant what we are accustomed to call the right of set-off 
 of one debt or claim against another.^ And by a general rule 
 of that law (different in that respect from ours ^) , where debts 
 are reciprocally due from one person to another, they are 
 treated as extinguished by mere operation of law, in the same 
 manner as if payment thereof had been actually made.* 
 This extinguishment by operation of law is altogether inde- 
 pendent of the intention or knowledge of the parties ; and it 
 takes eflFect at the very instant of the concurrence of the 
 reciprocal debts.* If the debts are equal, then the extin- 
 guishment is complete of both. If one is larger than the 
 other, then the larger debt is extinguished j'^'o tanto to the 
 extint of the latter, which becomes thereby totally extin- 
 guished. Therefore, if at or after the time when a Promis- 
 sory Note becomes due, the maker is a creditor of the holder 
 of a debt, then also due, of an equal or larger amount, by 
 
 ' Ante, § 425; and note; 1 Story, Eq. Jur. § 112; Nicholson v. Revill, 4 
 A. & El. 675, 682, 683. 
 
 ' Pothier on Oblig. by Evans, u. 587 ; Thomson on Bills, ch. 5, § 4, p. 395 
 (2d edit.) ; Nouguier, De Change, Tom. 1, p. 356. 
 
 » See Gary v. Bancroft, 14 Pick. 315, 317. 
 
 ' Pothier, De Change, n. 185; Nouguier, De Change, Tom. 1, p. 356. 
 
 ' Nouguier, De Change, Top. 1, p. 356 ; Code Civil of France, n. 1290. 
 
584 PROMISSORY NOTES. [CHAP. IX 
 
 the law of compensation the whole debt on the Note is extin- 
 guished ; if a less sum is due to the maker, then the debt on 
 the Note is extinguished pro tanto^ And any subsequent 
 indorsement of the Note will affect the party taking it, in the 
 same manner as if there had been a real payment made by 
 the maker or holder.^ The same rule will apply to the case 
 of an indorser, who has, by a due dishonor, and notice 
 thereof, become liable to pay the amount of the Note to the 
 holder ; for if the holder then is indebted to him in an equal 
 or larger amount, the debt due by the indorsement is extin^ 
 guished. 
 
 § 438. In the next place, as to Novation. Tliis is, techni- 
 cally speaking, the substitution of a new debt for an old ; * 
 and it constitutes, by the Roman law, as well as by the law 
 of Prance, an extinguishment of the old debt, by mere opera- 
 tion of law.* It is equally as applicable to debts arising from 
 Promissory Notes as to debts from other ordinary contracts.* 
 Our law does not essentially differ from the law of France in 
 this respect.® A negotiable Promissory Note will by our law 
 operate as an extinguishment of a prior existing debt, if it is 
 so intended between the parties. The only question is as to 
 the proof of such an intention. In general, as we have al- 
 ready se'en,^ by the law of England and of most of the States 
 of America, the receipt of a Promissory Note of the debtor 
 for a debt is, in the absence of all other proof, treated as a 
 conditional payment only of the debt, that is to say, if or 
 
 ' Pothier, De Change, n. 184, 185 ; Nouguier, De Change, Tom. 1, pp. 
 356, 357. . 
 
 " Pothier, De Change, n. 185, 186 ; Nouguier, De Change, Tom. 1, pp. 
 356, 357. 
 
 " Pothier on Oblig. by Evans, n. 546 ; .Thomson on Bills, oh. 5, § 4, pp. 
 395, 396 (2d edit). 
 
 ' Ibid.; anie, §105. 
 
 ^ Pothier, De Change, n. 189 ; Morgan &c. v. Their Creditors, 1 Miller, 
 Louis. 527. 
 
 ° Ante, § 104 ; Thomson on Bills, ch. 1, § 8, pp. 165 - 168 (2d edit.) ; Id. 
 ch. 5, § 4, p. 396 ; Id. ch. 6, § 6, p. 532. 
 
 ' Ante, §§ 104, 4:04, 408. 
 
CHAP. IX.] MATTERS OF DEFENCE AND DISCHARGE. 585 
 
 T^hen the Note is paid.^ But if the Note is intentionally re- 
 ceived as absolute payment, the original debt becomes thei-e- 
 by extinguished.^ The receipt of the Promissory Note of a 
 third person^ in payment of the debt, will amount to a posi- 
 tive extinguishment of the original debt, by way of novation, 
 as well by our law as the foreign law, if so intended by the 
 parties.^ 
 
 § 439. In the next place, as to Confusion. This is defined 
 by Pothier, technically, to. he the concurrence of two qual- 
 ities, in the same subject, which mutually destroy each 
 other,* or, perhaps, as it might be more exactly expressed, 
 
 • Ante, §§ 104, 389 ; Thomson on Bills, ch. 1, § 3, pp. 165 - 168 (2d edit.) ; 
 Swinyard v. Bowes, 5 M. & S. 62; Chitty on Bills, ch. 5, pp. 200-203 
 (8th edit.) ; Bayley on Bills, ch. 9, p. 334 (5th edit.) ; Id. pp. 363, 364 ; 
 Puekford v. Maxwell, 6 Term, 52 ; Thomson on Bills, ch. 1, § 3, pp. 165 - 
 172 (2d edit.) ; Shearm v. Buma:rd, 10 A. & El. 593 ; Sayer v. Wagstall, 5 
 Beav. 415; Story on Bills, § 419 ; Tobey v. Barber, 5 John. 68 ; Murray 
 V. Gouverneur, 2 John. Cas. 433 ; Johnson v. Weed, 9 John. 310 ; Hoar v. 
 Clute, 15 John. 224; Holmes v. D'Camp, 1 John. 34; Pintard v. Tacking- 
 ton, 10 John. 104 ; Burdick v. Green, 15 John. 247. In Massachusetts, a 
 [negotiable] Note, taken for a precedent debt, is prima facie deemed an 
 absplute payment. But the presumption may be rebutted by showing that 
 it was received as a conditional payment only. In other respects the gen- 
 eral rule prevails, which governs in other States. Therefore, a Promissory 
 Note given to a creditor is not payment of a pre-existent debt, unless so in- 
 tended by the parties. Baker v. Briggs, 8 Pick, 122; Watkins v. Hill, 8 
 Pick. 522, 526 ; Thacher v. Dinsmore, 5 Mass. 299 ; Greenwood v. Curtis, 6 
 Mass. 358 ; Johnson v. Johnson, 11 Mass. 389 ; Maneely v. McGee, 6 Mass. 
 143; Goodenow u. .Tyler, 7 Mass. 36 ; Emerson v. The Hat Manufacturing 
 Company, 12 Mass. 237; Jones v. Kennedy, 11 Pick. 125; Wood v. Bod- 
 well, 12 Pick. 268; Van Cleef v. Therasson, 3 Pick. 12 ; Butts -b. Dean, 2 
 Jlet. 76 ; Ilsley v. Jewett, 2 Met. 168, 173 ; Melledge v. Boston Iron Co., 5 
 Cush. 158. 
 
 ' Ibid. ; Bayley on Bills, ch. 9, pp. 363, 364 (5th edit.) ; ante, § 104. 
 
 ' Ante, § 404 ; Shearm v. Burnard, 10 A._& El. 593 ; Owenson v. Morse, 
 7 Term, 64 ; Bayley on Bills, ch. 9, pp. 363, 364 (5th edit.) ; Kearslake v. 
 Morgan, 5 Term, 513 ; Pothier on Oblig. by Evans, n. 548, 549 ; Johnson 
 V. Weed, 9 John. 310. 
 
 * Pothier on Oblig. by Evans, ii. 605; Story pn Bills, § 442; Thomson 
 on Bills, ch. 5, § 4, pp. 395, 396 (2d edit.) ; Nouguier, De Change, Tom. 1, 
 p. 358. 
 
586 PROMISSORY NOTES. [CHAP. IX. 
 
 according to our English idiom, it is the concurrence of two 
 adverse rights to the same thing in one and the same person. 
 This may occur in several ways ; as, for example, when the 
 creditor becomes the heir of the debtor, or, vice versa, when 
 the debtor becomes the heir of the creditor.^ The same con- 
 sequence ensues when the creditor succeeds to the debtor 
 by any other title, which renders him subject to his debts, 
 as, for example^ if he is his universal donatary or legatee ; 
 or where the debtor succeeds, by whatever means, to the 
 rights of the creditor.^ The reason given for the doctrine is, 
 that it is impossible for a person to be at the same time both 
 creditor and debtor. He cannot be his own creditor, and at 
 the same time his ow» debtor.^ 
 
 § 440. Hence it is, that, by the French law, the extinction 
 of the principal debt by confusion induces an extinction of 
 the obligation of the sureties for the same debt, as it is a 
 mere accessary obligation.* " Quum principalis causa non 
 subsistit, ne ea quidem, quae sequentur, locum habent." ^ On 
 the other hand, the extinction of the accessary obligation of 
 the surety by confusion does not induce an extinction of the 
 obligation of the principal. The reason of the difference is, 
 that the accessary obligation cannot subsist without the 
 principal obligation continues ; but the principal does not in 
 any degree depend for its existence upon the subsistence of 
 the accessary.^ In this respect, confusion differs from pay- 
 ment ; for by payment the thing is no longer due by any- 
 body ; and the principal obligation is extinguished, as well 
 as the accessary.^ 
 
 § 441. When the holder becomes an heir as to part of the 
 debt or credit only, the law of confusion applies only tp the 
 
 ' Pothier on Oblig. by Evans, n. 606 ; Story on Bills, § 442. 
 
 « Ibid. 
 
 ' Pothier on Oblig. by Evans, n. 607. 
 
 * Ibid., n. 608. 
 
 « Dig. Lib. 50, tit. 17, 1. 129. 
 
 ' Pothier on Oblig. by Evans, n. 609. 
 
 ' Ibid. 
 
CHAP. IX.] MATTERS OF DEFENCE AND DISCHARGE. 687 
 
 extinguishment pro tanto of that part.^ Accordingly, Potlaier 
 says : In order to induce a confusion of the debt, the charac- 
 ters, not only of debtor and creditor, but of sole debtor and 
 sole creditor, must concur in the same person. If a person, 
 who was only creditor for part, becomes sole heir of the 
 debtor, it is evident that the confusion and extinction can 
 only take place with respect to the part for which he is cred- 
 itor. Vice^ versa, if the creditor of the whole becomes heir 
 of the debtor for part, the confusion only takes place with 
 respect to that part. It is equally evident, that, if the cred- 
 itor is only one of several heirs'to the debtor of the whole, 
 the confusion and extinction only take place in respect of the 
 part for which he is heir, and for which he is liable to all the 
 other debts of the succession. The demand continues to sub- 
 sist against the others, as to the parts for which they are 
 respectively liable to the debts of the deceased.^ 
 
 § 442. There is one exception to the doctrine of confusion, 
 which is proper to be taken notice of in this place. When 
 it is said that, where the creditor becomes the heir of the- 
 debtor, his debt is extinguished, it is to be understood that he 
 is not only executor or administrator of the estate, but that 
 he is the sole heir of the property, subject to other debts. 
 And hence, if he accepts the executorship, with the benefit 
 of an inventory, no such confusion is introduced ; because, it 
 is said, that the beneficiary heir and the s uccession are then 
 deemed different persons, and their respective rights are not 
 confounded.^ 
 
 § 443. Without following out the doctrine of the French 
 law into its more minute details, let us see how it applies to 
 Promissory Notes. If the holder of the Note becomes the 
 heir of the maker, or, on the contrary, the maker of the Note 
 becomes the heir of the holder, or a third person has the suc- 
 cession of both the holder and the maker devolved upon him, 
 
 ' Pothier, De Change, n. 196. 
 
 ' Pothier on Oblig. by Evans, n. 612 ; Story on Bills, § 444. 
 
 " Pothier on Oblig. by Evans, n. 606 ; Story on Bills, § 444. 
 
588 PEOMISSOBY NOTES. [CHAP. IX. 
 
 ex necessitate, a case of confusion arises; and the" debt be- 
 comes extinguished.^ And this extinguishment of the debt 
 operates, not only between the holder and the maker, but in 
 respect to the indorsers also.^ If the confusion occurs be- 
 tween the holder and an indorser, it discharges the subse- 
 quent indorsers only, and not the prior indorsers.^ When 
 the confusion occurs between the holder and an antecedent 
 indorser, not his immediate indorser-, it extinguishes all the 
 rights of the holder, not only as to that indorser, but as to all 
 subsequent indorsers.* 
 
 § 444. The English law is not exactly coincident with the 
 law of France upon the subject of confusion ; but it furnishes, 
 in many cases, a doctrine founded on a striking analogy. 
 Thus, if the creditor appoints his debtor to be his executor, 
 that operates, at law, as a release or extinguishment of the 
 debt.^ And the law is the same where the creditor appoints 
 one of several joint, or joint and several debtors to be his ex- 
 ecutor ; for the executor cannot sue himself.^ But, by the 
 English la,w, this extinguishment operates only where there 
 are otheir assets of the creditor to pay all his debts ; for if 
 there be not other assets, then the creditors of the testator 
 have a right to payment out of the debt, as a part of the 
 assets.'' In case of the appointment of the debtor as admin- 
 istrator of the creditor's estatq, as it is the mere act of law, 
 and not of the creditor himself, the debt is not extinguished.^ 
 And in equity, in England, the same rule prevails, even in 
 
 ' Nouguier, De Change, Tom. 1, p. 358 ; Pothier, De Change, n. 190 ; 
 Story on Bills, § 445. 
 
 ^ Pothier, De Change, n. 190 ; Nouguier, De Change, Tom. 1, p. 359 ; 
 Story on Bills, § 445. 
 
 ' Nouguier, De Change, Tom. 1, p. 359 ; Pothier, De Change, n. 193, 
 194. 
 
 • Pothier, De Cljange, n. 195. 
 
 ' Freakley v. Fox, 9 B. & C. 130. 
 
 » Williams on Executors, Ft. 3, B. 3, eh. 2, § 9, pp. 937-946 (2d edit.) ; 
 Freakley v. Fox, 9 B. & C. 130. See Pothier on Oblig. by Evans, n. 276 ; 
 Harmer v. Steele, 4. Exch. 12. 
 
 ' Ibid. » Ibid, 
 
CHAP. IX.] MATTERS OF DEFENCE AND DISCHAEGE. 589 
 
 the case of executors, who are treated as having, in fact, paid 
 the debt by adding it to the assets.^ In case of the appoint- 
 ment, by a debtor, of his creditor, to be his executor, no such 
 merger or extinguishment takes place unless the executor 
 receives assets sufficient to pay the debt, and there is a right 
 to appropriate the same to that purpose, and then he is pre- 
 sumed so to do.^ 
 
 § 445. Before concluding this head, it seems proper to 
 take notice of another point of great practical importance, 
 which has been already brought under discussion,^ as to the 
 duty of the holder, and the rights of the maker, or the in- 
 dorser, upon the payment of a Promissory Note. And that 
 point is, whether the maker or the indorser, upon whom a 
 due demand is made for payment of the Note, is bound to pay 
 the same unless the Note is at the time produced and de- 
 livered up to him. It is obvious, that, if the Note is not 
 produced and delivered up when it is paid, the maker may, 
 in case of its having been lost or transferred, and, coming 
 into the possession of a bona fide holder, before its maturity, 
 be liable to pay the same a second time ; and he can have no 
 positive security against such liability. At law, no such 
 security can be required to be given. A Court of Equity, 
 however, may, where the Note is asserted to be lost, give re- 
 lief to the holder ; but then it is always upon the terms, 
 that he shows satisfactory proofs to establish the loss, and 
 gives good security for the repayment of the money if the 
 maker shall be compelled to pay the same again to another 
 holder.* Still, this is imposing some hardship upon the 
 maker, as he may be obliged to contest the rights of the 
 holder in a second suit, and the evidence by which he can 
 resist payment, may, in the mean time, be greatly changed 
 
 > Ibid ; Carey v. Goodinge, 3 Bro. Ch. Ill ; Berry v. Usher, 11 Ves. 90 ; 
 Simmons v. Giitteridge, 13 "Ves. 262. 
 
 » Story on Bills, § 443. 
 
 » Ante, §§ 106-112, 243-245. 
 
 • Macartney v. Graham, 2 Sim. 285 ; Daveis v. Dodd, 1 Wilson, Exch. 
 110 ; S. C, 4 Price, 176 ; Story on Eq. Jur. §§ 85, 86. 
 
590 PEOMISSOEY NOTES. [cHAP. IX. 
 
 by the witnesses to the supposed prior loss being dead, or 
 having removed, and their place of residence being unknown ; 
 so that, without any default on his own part, he may be sub- 
 jected to expensive and protracted litigation, in order to 
 avoid a double payment ; and, in the mean time, the original 
 holder, to whom he had paid the amount, as well as his 
 sureties, may have become insolvent.^ The hardsliip would 
 be still more glaring in respect to the indorser, for, not only 
 may he remain liable to pay any other bona fide holder, who 
 shall establish a good title to the Note, but his own right of 
 recovery over against the antecedent indorsers, and also 
 against the maker, may be materiayiy obstructed, if not de- 
 stroyed, by his inability to trace the various devolutions of 
 the title to the Note through the hands of such indorsers, as 
 well as to ascertain who is the final holder entitled to pay- 
 ment thereof.^ 
 
 1 Story on Bills, § 447 ; ante, §§ 107, 108, 111. 
 
 " See Bayley on Bills, ch. 9, p. 370 (oth edit.) ; Champion ». Terry, 3 
 Brod. & Bing. 295 ; ante, §§ 107, 108, 111. In Smith v. Rockwell, 2 Hill, 
 482 -484, Mr. Chief Justice Nelson, in delivering the opinion of the Court, 
 said : " If the makers had offered to pay the Note in question, but declined 
 on finding that it was lost, or if the indorser had proposed to take it up on 
 receiving notice of protest, with a view of calling upon his principals, the 
 question would have been different from the one now presented. The 
 Note being negotiable, neither was bound to make payment without receiv- 
 ing it as their voucher ; or upon tender of ample indemnity against any 
 future liability. , This has been deliberately settled, and for the most satis- 
 factory reasons. (Hansard v. Kobinson, 7 B. & C. 90 ; Rowley v. Ball, 3 
 Cowen, 308 ; Chitty on Bills, 423 ; Chitty, Jun. 53.) An indemnity may 
 be required in such cases, with a view to proceedings in a Court of Equity 
 to compel payment notwithstanding the loss. Tender of indemnity should 
 be made to both maker and indorser at the time of demand and notice ; 
 because, as the former is not bound to make payment without the produc- 
 tion of the Note, or indemnity in case of loss, for that very reason payment 
 ought not to be required of the' latter, till the proper steps have been taken 
 to secure his immediate recourse against his principal. Besides, the indors- 
 er's own liability upon the paper demands indemnity to himself, which 
 should be given without delay, so that he may be in a situation to pay the 
 demand at any time after notice, and look to the maker. Any prejudice 
 he might suffer by reason of neglect on the part of the holder to give the 
 
CHAP. IX.] MATTERS OF DKFENCE AND DISCHARGE. 691 
 
 • 
 
 § 446. Considerations of this sort have (as has been al- 
 ready intimated!), in England, led to the final establishment 
 of the doctrine (which, however, was formerly open to much 
 doubt and diversity of opinion), that there is and should be 
 no remedy at law for the holder of a negotiable Promissory 
 Note which has been lost, to recover the contents from any 
 antecedent party on the Note, whether he is the maker or the 
 indorser thereof ; but that the sole remedy is and should be 
 in a Court of Equity, where the relief will be granted upon 
 the holder's proving the loss, and giving a suitable bond of 
 indemnity.^ .[-^iid the late English cases declare that a debt 
 
 necessary indemnity in either case would, no doubt, afford ground for re- 
 fusing to enforce payment against him on application to a Court of Equity 
 for that purpose. The holder, therefore, should take the necessary steps, 
 with all reasonable diligence, to secure a speedy resort to that Court in 
 behalf of the surety; as the consequences of delay would justly fall upon 
 the holder, so far as the indorser or any other party standing in that re- 
 lation upon the paper is concerned." See also 3 Kent, Lect. 44, p. 115 
 (5th edit.) ; post, § 448. 
 
 1 Ante, §§ 107, 108. 
 
 ' Ante, § 108 ; Thomson on Bills, ch. 3, § 5, p. 323 (2d edit.) ; Bayley 
 on Bills, ch. 9, pp. 369 - 373 (5th edit.) ; Chitty on Bills, ch. 6, pp. 291, 292, 
 295 (8th edit.) ; Id. ch. 9, pp. 456, 458 ; Davis v. Dodd, 4 Taunt. 602 ; Ex 
 parte Greenway, 6 Ves. 812; Mossop v. Eadon, 16 Ves. 430; Powell v. 
 Koach, 6 Esp. 76 ; Pierson u. Hutchinson, 2 Camp. 211 ; Wain v. Bailey, 
 10 A. & El. 616 ; Poole v. Smith, Holt, 144 ; Hansard v. Robinson, 7 B. & 
 C. 90 ; Eamuz v. Crowe, 1 Exch. 167. The doctrine was very thoroughly 
 discussed by Lord Tenterden, in delivering the Opinion of the Court in the 
 case of Hansard v. Robinson, 7 B. & C. 90, which was the case of a suit on 
 a lost Bill of Exchange, brought by an indorsee against the acceptor. On 
 that occasion his Lordship said : " Upon this question, the opinions of the 
 Judges, as they are to be found in the cases quoted at the bar, have not 
 been uniform, and cannot be reconciled to each other. It is not necessary 
 to advert again to the cases. Amid conflicting opinions, the proper course 
 is, to revert to the principle of these actions on Bills of Exchange, and 
 to pronounce such a decision as may best conform thereto. Now the prin- 
 ciple, upon which all such actions are founded, is the custom of merchants. 
 The general rule of the English law does not allow a suit by the assignee 
 of a chose in action. The custom of merchants, considered as part of the 
 law, furnishes, in this case, an exception to the general rule. What, then, 
 is the custom in this respect ? It is, that the holder of the Bill shall pre- 
 
592 PROMISSORY NOTES. [CHAP. IX. 
 
 • 
 
 paid by a Bill or negotiable Note which is lost, cannot be re- 
 covered at law, although it do not appear that the Bill or 
 Note was overdue, or that the payee had in fact ^ ever in- 
 dorsed it.^] 
 
 sent the instrument, at its maturity, to the acceptor, demand payment of its 
 amount, and, upon receipt of the money, deliver up the Bill. The acceptor, 
 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. If, upon an offer of payment, the holder should refuse to de- 
 liver up the Bill, can it be doubted that the acceptor might retract his offer, 
 or retain his money ? And if this be the right of an acceptor, ready to pay 
 at the maturity of the Bill, must not his right remain the same, if, though 
 not ready at that time, he is ready afterwards ? and can his right be' varied 
 if the payment is to be made under a compulsory process of law ? The 
 foundation of his right, his own security, his voucher, and his discharge 
 towards the drawer, remain unchanged. As far as regards his voucher, 
 and his discharge towards the drawer, it will be the same thing whether 
 the instrument has been destroyed or mislaid. With respect to his own 
 security against a demand by another holder, there may be a difference. 
 But how is he to be assured of the fact, either of the loss or destruction of 
 the Bill ? Is he to rely upon the assertion of the holder, or to defend an 
 action at the peril of costs ? And, if the Bill should afterwards appear, and 
 a suit be brought against him by another holder, a fact not absolutely im- 
 probable in the case of a lost Bill, is he to seek for the witnesses to prove 
 the loss, and to prove that the new plaintiff must have obtained it after it 
 became due ? Has the holder a right, by his own negligence or misfortune, ■ 
 to cast this burden upon the acceptor, even as a punishment for not dis- 
 charging the Bill on the day it became due ? We think the custom of 
 merchants does not authorize us to say that this is the law. Is the holder, 
 then, without remedy ? Not wholly so. He may tender sufficient indem- 
 nity to the acceptor, and, if it be refused, he may enforce payment there- 
 upon in a Court of Equity." Whether the like rule prevails when a Bill 
 has been destroyed, and proof of its destruction is made, as, for example, of 
 its being consumed by fire, seems to have been thought more doubtful. 
 But, in such a case, the situation of the acceptor, as to the importance of 
 possessing the voucher to establish his claim against the drawer, as well as 
 his own personal Security, may require the rule to be strictly adhered to. 
 What evidence can the acceptor have that the evidence of the destruction 
 is not false, by mistake or design? See also Stats. 9 & 10. Will, 3, oh. 
 17, § 3. 
 
 ' Crowe V. Clay, 25 Eng. Law & Eq. 451. And see Woodford v. Whitely, 
 Mood. & Malk. 517 ; Mercer v. Cheese, 4 M. & G. 804; Price v. Price, 16 
 M. & W. 232. [By the Common-law Procedure Act, § 87 (1854), it was 
 
CHAP, IX.] MATTERS OF DEFENCE AND DISCHARGE. 593 
 
 § 447. The French law (as we have already seen^) adopts 
 precisely the same rule, which is followed in Courts of Equity ; 
 and there is great reason to suppose that it constitutes the 
 basis of the general law of the commercial nations of Conti- 
 nental Europe. Heineccius on this subject says : '' Elegans 
 quaestio est, an, amissis litteris cambialibus, ipsum debitum 
 cambiale exspiret ? Id quod merito negatur. Quodsi debi- 
 tor fateatur, se cambiales litteras dedisse, index ilium per 
 exsequutionem cambialem adigere potest ad solvendum, 
 modo actor prius cautionem de futur^ indemnitate prsesti- 
 terit. Sin vero neget reus, probatione, adeoque processu or- 
 dinario opus est : victus tamen reus exsequutione cambiali ad 
 solvendum compellitur." ^ 
 
 § 448. In America there has been (as we have already 
 seen) some diversity of judgment, whether a suit is maintain- 
 able at law, upon a lost Bill, against the maker or not. In 
 some States, the doctrine has been maintained in the afiBrm- 
 ative ; ^ in others, it has been held in the negative.* In 
 others, again, it has been held, that the holder is entitled to 
 recover at law, provided he executes a suitable instrument 
 of indemnity .5 Which doctrine will ultimately prevail in 
 America, it is not for the Commentator to conjecture. But 
 it may be said, with great confidence, that it will be difficult 
 to overturn, upon satisfactory grounds, the reasoning of Lord 
 Tenterden, already referred, to, in favor of the negative.^ 
 
 provided that, in case of any action on a Bill of Exchange or other ne- 
 gotiable instrument, the Court may order that the loss cannot be set up, 
 provided an indemnity is given, &c. See 38 Eng. Law & Eq. 425.] 
 
 ' Ante, §§ 110, 111. 
 
 ' Heinecc. de Camb. cap. 6, § 11. 
 
 " Meeker v. Jackson, 3 Yeates, 442 ; Lewis v. Petayvin, 16 Martin, 4 ; 
 Miller v. Webb, 8 Louis. 516; Bullet v. Bank of Pennsylvania, 2 Wash. 
 172; Hinsdale v. Bank of Orange, 6 Wend. 378. 
 
 ' Rowley V. Ball, 3 Cowen, 303 ; Kirby v. Sisson, 2 Wend. 550 ; Smith 
 V. Kockwell, 2 Hill, 482. See Morgan v. Reintzel, 7 Cranch, 276 ; Ren- 
 ner v. Bank of Columbia, 9 Wheat. 681. 
 
 ' Ante, § 111. 
 
 ' Ante, § 446, and note. The reasofiing in favor of maintaining a suit 
 38 
 
594 PROMISSORY NOTES. [CHAP. IX. 
 
 But, when we come to the case of the indorser, who is called 
 upon to pay the Note, in default of payment by the maker, 
 
 at law upon a lost Bill or Note is very fully given by Mr. Justice Wash- 
 ington, in delivering the opinion of the Court, in Martin v. The Bank of the 
 United States, 4 Wash. 263, 255. He there said : " The principles upon 
 which this Court decided the case of Bullet v. The Bank of Pennsylvania 
 (2 jWashi 172) were, that a bank or any other Promissory Note is the 
 evidence of a debt due by the maker to the holder of it, and nothing more. 
 It is also the highest species of evidence of such debt, and, in fact, the only 
 proper evidence, if it be in the power of the owner of the Note to produce 
 it. But if it be lost or destroyed, or, by fraud or accident, has got into the 
 possession of the maker, the owner does not thereby lose his debt, but the 
 same continues to exist in all its rigor, unaffected by the accident which has 
 deprived the owner of the means of proving it, by the Note itself. The 
 , debt still existing, the law, which always requires of a party that he should 
 produce the best evidence of his right of which the nature of the thing is 
 capable, permits him, where such better evidence is lost, or destroyed, or 
 not in his power, to give inferior evidence, by proving the contents of the 
 lost paper ; and, if this be satisfactorily made out, he is entitled to recover. 
 If the evidence be not lost, but is merely impaired by accident, or even by 
 design, if such design be not to injure the maker or to cancel the debt, the 
 principle of law is the same. Cutting a Bank-note into two parts does not 
 discharge the bank from the debt, of which the Note was but the evidence, 
 nor does it even impair the evidence itself, if, by uniting the parts, the con- 
 tents of the entire Note can be made out. If one of the parts should be 
 lost, or destroyed, the debt would be no more affected than if the entire 
 parts had been lost, or destroyed. The evidence is impaired, indeed, not by 
 the act of cutting the Note, but by the same accident which would have 
 affected the entire Note, had that been lost. In both cases, the owner must 
 resort to secondary evidence, and is bound to prove that the Note did once 
 exist, that it is lost or destroyed, and that he is the true, bona fide owner of 
 the debt. If one part only of the Note be lost, the difficulty which the real 
 owner of it has to encounter in proving his right to the debt is diminished. 
 .For, if the entire Note be lost, the owner of it, at the time of the accident, 
 ,may not be entitled to the debt, of which it was the evidence, at the time 
 ..he demands payment, because the Note, passing from hand to hand, by 
 bare delivery, may have been found, and have got into the possession of a 
 bona^fide holder. But against the real owner of one half the Note, there can- 
 not possibly be an opposing right. The finder, or robber, of the other half 
 part cannot assert a right to the debt, because he cannot prove that he 
 came; fairly to the possession of the evidence of it. I speak judicially, when 
 J say that he cannot prove that fact, because he cannot do it without the aid 
 of perjury, which the law does not presume, and can in no instance guard 
 against it. If the lost half-Note gets fairly into the hands of a third per- 
 
CHAP. IX.] MATTERS OF DEFENCE AND DISCHARGE. 595 
 
 it will be difficult to find any solid reason, upon which the 
 holder can be entitled to recover against himj%ithout the 
 
 son, he takes it with notice that there may be a better title in the possession 
 of the other half, and consequently he looks for indemnity to the person 
 from whom he received the half part, if it should turn out that he was not 
 the real owner of the entire Note. It is impossible, therefore, that the bank 
 can be legally called upon to pay the Note twice ; and if the officers of the 
 institution suffer themselves to be imposed upon by insufficient or false evi- 
 dence, by which means the bank is brought into this predicament, she must 
 abide the loss as being occasioned by an error of judgment in the officers of 
 the bank, or their want of due caution. The law cannot adapt its pro- 
 visions to every possible case that may occur, and it therefore proceeds from 
 necessity upon general principles applicable to all cases. If, upon any 
 other ground than fraud, or perjury, the maker of the lost Note may by 
 possibility be twice charged, the law will not expose him to that risk by 
 relieving the asserted owner of it ; not because there may be imposition in 
 the case, or because the d'ebt ought not to be paid ; but because the proof, 
 that the claimant is the real owner of the debt, is defective ; for it by no 
 means follows, that, because the lost Note did belong to him, it may not 
 then be the property of some other person. A court of law therefore will, 
 in such a case, dismiss the parties from a forum which has no means of se- 
 curing the maker of the Note against a double charge, and leave him to 
 one where those who ask of it equity will be compelled to do equity. The 
 case then resolves itself very much into a question of jurisdiction. For it 
 is quite clear, that the real owner of a debt, the evidence of which is lost, 
 is entitled to supply the want of a better evidence by that which is sec- 
 ondary, and this rule of evidence is the same in equity as at law. But 
 whether the application for relief shall be in the one court, or in the other, 
 must depend upon the particular case, and its fitness for the one jurisdiction 
 or the other. Many difficulties were stated by the defendant's counsel, to 
 which the practice of cutting the Notes and transmitting them by mail ex- 
 poses banking institutions in identifying the part of a Note when produced 
 for payment. That these difficulties do in a measure exist must be ad- 
 mitted. But the bank knows, that there can be but one owner of the Note, 
 and who that one is must be satisfactorily proved, to entitle him to payment 
 of it. The bank has a just right to call for such proof; and if it be truly 
 and faithfully given, there can be no risk in paying it. The possessor of 
 the, other half part of the Note, as already observed, by whatever means 
 he acquired it, can never oblige the bank to pay the money over again to 
 him. But, after all, the rule of law does not rest upon this circumstance. 
 The maker of the Note is bound to pay to the person who proves himself 
 to be the legal owner of it ; and the difficulties- complained of are not 
 greater than those which attend most litigated questians."" See also Eosey 
 V. Decatur Bank, 12 Ala. 802 ; Thayer v. King, 15 Ohio, 242. 
 
596 PROMISSORY NOTES. [cSAP. IX. 
 
 'Note being OToduoed, upon any mere parol proof of the loss 
 of it ; since wie indorser may or must thereby be put to great 
 embarrassment in making out his own title against the 
 maker, or against other parties, liable to him, without the 
 production of the Note. What right can the holder have 
 to shift upon him the burden of proving the loss of the 
 Note ? Or, what adequate means can he have of preserv- 
 ing and commanding all the proof for future use in case of 
 future litigation ? The English doctrine must, under such 
 circumstances, apply to the indorser with double propriety 
 and force. ^ 
 
 § 449. A distinction has sometimes been taken between 
 the case of a Note's being lost, and the case of its being de- 
 stroyed, and non-existent in rerum natura. In the former 
 case (as we have seen^), an action is not in England main- 
 tainable at law by the holder ; but only in equity. In the 
 latter case it has been thought, that an action may be main- 
 tainable at law, since the destruction of the Note takes away 
 the possibility of its getting into the possession of any subse- 
 quent bona fide holder.* But there is this remaining diffi- 
 culty, that evidence, which is merely presumptive, may be 
 offered, of the destruction of the Note, and then it may ex- 
 pose the maker to all the inconveniences of a subsequent 
 second payment, if the Note should subsequently reappear. 
 And there is no more hardship, in sending the holder into 
 equity for redress in the case of the destruction of the Note, 
 than there is in the case of the loss of the Note. In each ' 
 case, however, the security of the maker in making payment 
 is essentially promoted, and his liability to future loss, 
 
 ' See Chitty on Bills, oh. 6, pp. 285, 291, 293 (Stb edit.) ; Id. ch. 10, 
 p. 532 (Sth edit. 1833) ; Bayley on Bills, ch. 9, pp. 369-373 (5th edit.) ; 
 Story on Bills, § 449 ; ante, §§ 107, 108, 111, 445. 
 
 2 Ante, § 107. 
 
 ' Pierson v. Hutchinson, 2 Camp. 211 ; Mayor v. Johnson, 3 Camp. 324; 
 Champion v. Terry, 3 Brod. & Bing. 295 ; Thomson on Bills, ch. 3, § 5, p. 
 523 (2d edit.) ; ante, § 107, 
 
CHAP. IX.] MATTERS OF DEFENCE AND DISOHAEGE. 597 
 
 founded upon new or varying evidence, is greatly diminished" 
 by the course adopted in equity .^ 
 
 § 450. There seems, also, formerly, to have been a distinc- 
 tion taken between the case of a loss of the Note before it 
 was due, and the case of a loss after it was due, upon the 
 ground, that, if lost after it was due, no subsequent holder 
 could recover upon the Note, except subject to all the 
 equities between the antecedent parties. But, it is now 
 clearly settled in England, that whether the Note be lost 
 
 ' Mr. Bayley (on Bills, ch. 9, pp. 369 - 372, 5th edit.) states the doctrine 
 in the following summary manner : " If a Bill or Note be destroyed by fire 
 or other accident, an action may perhaps be brought thereon, as if it were 
 in esse. But if a !^ill or Note be lost, there can be no remedy upon it at 
 law, unless it was in such a state, when lost, that no person but plaintiflf 
 could have acquired a right to sue thereon. As, if it were specially indorsed 
 to plaintiff, and had no indorsement from him upon it. Where it is so 
 specially indorsed, an action may, perhaps, be brought thereon. If a man 
 take a Bill or Note for an antecedent debt, and lose it before it is due, 
 with a blank indorsement thereon, he cannot sue upon the Bill or Note, 
 nor for the antecedent debt, unless he can show that the Bill has been 
 actually destroyeid, so that no claim can ever be made thereon against the 
 person he sues. Nor even then, if such person could have sued upon the 
 Bill on taking it up. But, if the Bill or Note were unindorsed, and no 
 valid claim can be made thereon for want of such indorsement, the loser is 
 not'precluded from suing for the antecedent debt, or upon the Bill or Note ; 
 unless the defendant would have had a remedy over upon the Bill or Note, 
 upon paying it. Where the person paying is entitled to require an indem- 
 nity, the only remedy on a lost Bill is in equity ; a Court of Equity can 
 inquire into the sufficiency of an indemnity ; a Court of Law cannot." Mr. 
 Chitty (on Bills, ch. 6, p. 293,-8th edit.) says : " It seems, however, that if 
 it can be distinctly proved that the Bill has been destroyed, the party who 
 was the holder may recover at law ; so, if the Bill was not negotiable, or 
 has not been indorsed at all ; or, if it was only specially indorsed, the party 
 who lost it may proceed by action on such Bill, and secondary evidence of 
 the contents may be admitted. And, if the defendant has suffered judg- 
 ment by default, and thereby admitted his liability to the action, the amount 
 of the principal and interest may be referred to the master, on production 
 of a verified copy of a lost Bill. But the mere circumstance of the Statute 
 of Limitations having run on the Bill before the loss, will not enable the 
 loser to sue.'' The reasoning of Lord Tenterden in Hansard v. Robinson, 
 7 B. & C. 90, 94, 95, applies equally as strongly to cases of the destruction 
 of a Note as it does to the loss of a Note. Ante, § 446, and note. 
 
598 PROMISSORY NOTES. [CHAP. IX. 
 
 before or after it becomes due, or after actual demand of 
 payment, or even after an express promise to pay, still no 
 action at law can be maintained tbereon ; but the sole reme- 
 dy is in equity. The ground of the decision is, that in each 
 case the maker of the Note is equally entitled to have the 
 Note surrendered up to him upon payment, as his voucher 
 therefor. Besides ; though he may have a good defence 
 against a subsequent holder, he may be put to great risk, 
 trouble, and expense in establishing it, and that without any 
 default on his own part.^ Losing a Note ordinarily implies 
 negligence on the part of the loser, and the inevitable results 
 of such negligence ought to fall upon him, rather than upon 
 an innocent party .^ 
 
 ^ Hansard v. Kobinson, 7 B. & C. 90; Clay v. Crowe, 25 Eng. Law & 
 Eq. 451 ; Bayley on Bills, ch. 9, p. 373 (5th edit.) ; Chitty on Bills, ch. 6, 
 pp. 291, 292, 295, 296 (8th edit.) ; Thomson on Bills, ch. 3, § 5, pp. 323- 
 325 (2d edit.) ; ante, § 107, note. 
 
 ° Ibid. Mr. Chitty (on Bills, ch. 6, pp. 295, 296, 8th edit.) sums up the rea- 
 soning in these words : " It was urged that when a BIB, &c., has been lost 
 before it was due, unless the party proceed under the Statute 9 & 10 Will. 
 3, ch. 17, § 3, it may be proper that he should be confined to a Court of 
 Equity for relief; for as a transfer before a Bill is due, though made by a 
 person not entitled thereto, may give a bona fide holder a right of action 
 thereon; it is but just that the. parties called upon to pay should be previ- 
 ously sufficiently indemnified, and the sufficiency of an indemnity can be 
 more correctly ascertained in a Court of Equity than at law. But it was 
 contended that where a Bill has been lost afber it became due, and that fact 
 be clearly proved, there seems to be no reason why the- party who lost it 
 should not be permitted to proceed at law, and, indeed, without offering an 
 indemnity, inasmuch as the law itself would in such cjise indemnify all the 
 parties to the, Bill from any liability to a person who became holder of 
 it after it was due ; because a person taking a Bill by transfer after it be- 
 comes due holds it subject to all the objections which affected it in the 
 hands of the party who first became wrongfully possessed of it, or who tor- 
 tiously transferred it, and consequently he could not sustain an action 
 thereon against any of the parties to the Bill ; and there is an additional 
 reason why this should apply as to the drawer and indorsers of a Bill, and 
 the indorsers of a Note, namely, that they must have been discharged from 
 liability to any subsequent holder by the want of notice from such holder of 
 he default in payment by the drawee. But the answer to this reasoning 
 iSgtthat it is part of the contract of an acceptor of a Bill, or maker of a 
 
CHAP. IX.] MATTERS OF DEFENCE AND DISCHARGE. 599 
 
 § 451. There seems to be a far better ground (although it 
 is not without some inconvenience) for allowing a recovery 
 on a lost or destroyed Note at law, where it is not nego- 
 tiable ; for, in such a case, the maker is not liable at law to 
 pay the same to any other person than the original payee ; 
 and whoever derives title under the payee must sue in the 
 name of the latter, and must take the Note subject to all the 
 equities between the maker and the payee.^ In this respect 
 our law is precisely coincident with the old law of Prance, 
 which took a similar distinction between negotiable Notes 
 and Notes not negotiable.^ The same rule will apply, if it 
 were originally negotiable, where it has not been indorsed 
 by the payee, or where it has been specially indorsed to a 
 particular party, to whom it is to be exclusively payable.^ 
 
 § 452. It has been considered as doubtful, whether the 
 maker of a Note, or other party paying a Note, is entitled, 
 upon the payment of the Note, to insist upon a receipt from 
 the holder.* It would now seem, upon general principles, 
 that he is entitled to claim it as a matter of right.^ In cases 
 
 Note, to pay on the presentment of the instrument to him for that purpose, 
 and that he has therefore a right to have the instrument delivered to him 
 as his voucher. Besides, though he may have a good defence against a sub- 
 sequent holder, he may be put to risk, trouble, and expense, in establish- 
 ing it." 
 
 ' Ante, § 106 ; Charnley v. Grundy, 25 Eng. Law & Eq. 318 ; Mossop v. 
 Eadon, 16 Ves. 430 ; Chitty on Bills, ch. 6, pp. 293, 294 (8th edit.) ; Thom- 
 son on Bills, ch. 3; § 5, pp. 323, 324 (2d edit.) ; Wain v. Bailey, 10 A. & El. 
 616. In this last case it was h%ld, that, if the Note was not negotiable, the 
 maker could not insist upon its production and delivery up, when called 
 upon to pay it ; and that his refusal to pay it, because of suc|| non-produc- 
 tion and delivery, was no defence to an action brought for the recovery of 
 the amount due thereon. But see Blackie v. Pidding, 6 M., G. & S. 196 ; 
 Hough V. Barton, 20 Verm. 455. 
 
 ^ Jousse, Comm. sur I'Ord. 1673, art. 18, 19. 
 
 • Chitty on Bills, ch. 6, pp. 291 - 293 (8th edit.) ; Bayley on Bills, ch. 9, 
 pp. 369 - 371 (6th edit.) ; Rolt v. Watson, 4 Bing. 273 ; Long v. Bailie, 2 
 Camp. 214 ; ante, §§ 106, 107, 110. 
 
 * Chitty on Bills, ch. 9, p. 456 (8th edit.) ; Id. pp. 423, 424 (9th edit, by 
 Chitty & Hulme) ; ante, § 106, note. 
 
 ' See Cole v. Blake, Peake, 179, 180; Green v. Croft, 2 H. B1.30; 
 
600 , PROMISSOBY NOTES. [CHAP. IX. 
 
 of Bills of Exchange, it is usual to give a receipt upon the 
 back of the Bill ; and, by parity of reason, it would seem, 
 that the same course should be adopted in cases of Notes.^ 
 In cases of part payment, it would seem proper to indorse 
 the amount paid on the back of the Note, otherwise the 
 maker may be liable to pay the amount again to a bona fide 
 indorsee.^ In cases of payment by indorsers, there seems a 
 stronger ground to insist upon a receipt, because it may 
 materially affect the proof of their right of recovery over 
 against the antecedent parties to the Note.^ It is said, that 
 the production of a Note in the hands of a party, either as 
 maker or as indorser, is not evidence that it has been paid 
 by him, but proof aliunde should be given ; and hence the im- 
 portance of a receipt upon the back of the Note.* But there 
 is much reason to contend, that the possession of a Note by 
 the maker, or by the payee, or by any subsequent indorser, is 
 prirna facie evidence, notwithstanding there are subsequent 
 indorsements thereon, that he is the true and lawful owner 
 thereof, and that he has re-acquired the full title thereto. 
 And, accordingly, this seems now to be the better opinion 
 maintained in America, notwithstanding some early doctrine 
 the other way.^ [But the production of a Note by one of 
 
 ante, § 106, note; Chitty on Bills, ch. 8, p. 436 (8th edit.); Id. p. 457 (9th 
 edit.). 
 
 1 Ibid. 
 
 ' Chitty on Bills, ch. 9, p. 456 (8th edit.) ; Cooper v. Davies, 1 Esp. 463, 
 
 " Chitty on Bills, ch. 9, p. 456 (8th edit.) ; Jd. 423, 424 (9th edit, by Chitty 
 & Hulme). 
 
 * See Pfiel v. Vanbatenberg, 2 Camp. 439 ; Mender v. Carreroon, 1 14. 
 Kaym. 742 ; thitty on Bills, ch. 9, pp. 456, 457 (8th edit.) ; Id. p. 423 (9th 
 edit, by Chitty & Hulnfe) ; Welch v. Lindo, 7 Cranch, X59 ; ante, § 106, 
 and note. 
 
 ' Dugan V. United States, 3 Wheat. 172. In this case the Supreme 
 Court of the United States held : " That if any person who indorses a 
 Bill of Exchange to another, whether for value, or for the purpose of col- 
 lection, shall come to the possession thereof again, he shall be regarded, 
 unless the contrary appear in evidence, as the honajide holder and proprie- 
 tor of such Bill, and shall be entitled to recover, notwithstanding there may 
 be on it one or more indorsements in full, subsequent to the one to lum, 
 
CHAP. IX.] MATTERS OF DEFENCE AND DISCHAEGE. 601 
 
 two joint maters is no evidence, in a suit for contribution 
 against his co-maker, that it was all paid by himself.^] 
 
 § 453. In cases of Bills of Exchange, if the drawee of the 
 Bill refuses to accept the Bill, any person may accept supra 
 protest, for the honor of all or any of the antecedent parties ; 
 and if the Bill should, at its maturity, be dishonored and 
 protested, the acceptor supra protest will, upon payment 
 thereof, be entitled to recover the amount against any of the 
 antecedent parties, for whose honor he has accepted the 
 Bill.2 In like manner, if, after the acceptance of the Bill, 
 the drawee (whK is then the acceptor) refuses to pay the 
 Bill at its maturity, and it is then protested for non-payment, 
 any person may in like manner pay the Bill supra protest, 
 for the honor of all or any of the antecedent parties, and 
 may, upon such payment, entitle himself to recover the 
 amount so paid from the party or parties for whose honor the 
 money has been paid.^ It is only necessary, in this place, in 
 order to guard against any mistakes, to state, that no such 
 rule is, by the general commercial law, applicable to Promis- 
 sory Notes. Whoever, therefore, *iot being a party to the 
 Note, does undertake, upon the dishonor thereof, to pay it for 
 the honor of the maker, or of any of the indorsers, does so 
 at his peril ; and does not, by the general commercial law, 
 
 without producing the receipt or indorsement back from either of the in- 
 dorsers, whose names he may strike from the Bill, or not, as he may think 
 proper." The Court thus overruled the earlier case of Welch v. Lindo, 7 
 Cranch, 159. The cases of The United States v. Barker, 1 Paine, 156; 
 Norris v. Badger, 6 Cowen, 449 ; Brinkley v. Going, 1 Breese, 288 ; Camp- 
 bell v. Humphreys, 2 Scamm. 478, 479, and notes; and Bank of United 
 States V. United States ; 2 How. (U. S.) 711, are to the same effect as the 
 case in 3 Wheat. 172. See also Mottram v. Mills, 1 Sandf 37 ; Hunter v. 
 Kibbe, 5 McLean, 279; Baring v. Clark, 19 Pick. 220 ; McGee v. Prouty, 
 9 Met. 547; Dollfus v. Frosch, 1 Denio, 367. 
 
 • Heald v. Davis, 11 Cush. 318. ' 
 
 » Story on Bills, §§ 124, 125, 452 ; Chitty on Bills, ch. 8, pp. 375-379 
 (8th edit.) ; Pardessus, Droit. Comm. Tom. 2, art. 405 ; Nouguier, De 
 Change, Tom. 1, pp. 345, 346 ; 3 Kent, Lect. 44, pp. 87, 88 (6th edit.). 
 
 ' Pothier, De Change, n. 113 ; Ex parte Waekerbath, 5 Ves. 674 ; Code 
 de Comm. art. 168. 
 
602 PEOfflSSOEY NOTES. [CHAP. IX. 
 
 thereby acquire any right to repayment from any of the 
 antecedent parties, for whose honor he paid it ; but he can 
 claim reimbursement only in virtue of some authority, ex- 
 press or implied, to make the payment, from the party on 
 ■whose account he has paid it, or by suing, as an equitable 
 assignee of the Note, in the name of the party to whom he 
 has paid it. The reason probably is, that the custom of mer- 
 chants has never extended to cases of this sort, as Prom- 
 issory Notes are not usually drawn payable in a foreign 
 country, and the like necessity, therefore, does not ordinarily 
 exist for the intervention of third personsTo save the credit 
 of the parties, or exempt them from damages, as does exist 
 in cases of exchange and re-exchange. 
 
CHAP. X.] GUARANTY OF PROMISSORY NOTES. 603 
 
 CHAPTER X. 
 
 OP THE GUARANTY OP PROMISSORY NOTES. 
 
 § 454. Hitherto we have spoken of Promissory Notes, 
 and of the rights, duties, obligations, and liabilities of the 
 immediate parties thereto, either as maker, or payee, or in- 
 dorser thereof. But persons who are not immediate parties, 
 in either of the characters above stated, may become liable 
 for the payment of a Note under a guaranty thereof. And 
 it is our present purpose to inquire into the nature and effect 
 of such a guaranty. 
 
 § 455. The guaranty of Bills of Exchange is a well-known 
 contract, in free use among the different nations of Conti- 
 nental Europe. In France, it is known under the appella- 
 tion of Aval, the origin of which word has been a matter of 
 some difference of opinion among the French jurists, some of 
 them holding that it is derived from a word in the old French 
 idiom (d valle), signifying at the bottom, because it was com- 
 monly written at the foot or bottom of the Bill ; ^ as we are 
 accustomed to speak of an indorsement, from its being writ- 
 ten on the back of the Bill (in dorso) ; others contending 
 that it is derived from the words /cwVe valoir? 
 
 ' Merlin, Repertoire, Avalage, Avaleson, Avalison ; Walsh's Amer. Re- 
 view, Vol. 2, p. 112, Appendix, note 53 (1811) ; Pothier, De Change, n. 
 50; Story on Bills, §§ 393-395; Savary, Le Parfait Negooiant, Tom. 1, 
 Pt. l,Liv. 3, ch. 8, p. 205. 
 
 ' Jousse adopts this latter derivation of the word, and says that it signi- 
 fies " faire yaloir " ; and that is a complete contract of guaranty, by simply 
 writing at the bottom of the Bill the words " pour aval," with the signature 
 of the guarantor. Jousse (Comm. sur I'Ord. 1673, art. 33) ; Bornier 
 (Annot. sur I'Ordon. 1673, art. 38) ; Savary (Le Parfait N^gociant, Tom. 
 1, Pt. 1, Liv. 3, ch. 8, p. 205) ; Locr^ (Esprit de Code de Comm. Tom. 1, 
 
604 , PKOMISSOBY NOTES. [CHAP. X. 
 
 ' § 456. The^ like sort of guaranty may exist among the 
 commercial nations of Continental Europe in respect to 
 Promissory Notes ; but it does not appear to be as well 
 known, or as commonly used, as it is in cases of Bills of Ex- 
 change. The guaranty of Promissory Notes, howerer, is not 
 uncommon in England or America ; and, in the latter coun- 
 try especially, it is a contract of frequent occurrence. Let 
 us then examine, (1.) The nature, obligation, and effect 
 of a guaranty. (2.) The different forms, or modes, in which 
 it may arise. (3.) When, and under what circumstances, a 
 guaranty is negotiable or not. (4.) In what manner it is 
 dissolved or extinguished. 
 
 § 457. In the first place, then, as to the nature, obligation, 
 and effect of a guaranty. A guaranty, in its legal and com- 
 mercial sense, is an undertaking by one person to be answera- 
 ble for the payment of some debt, or the due performance of 
 some contract or duty, by another person, who himself re- 
 mains liable to pay or perform the same.^ It may be the 
 guaranty of a prior debt, or prior contract or duty, or of a 
 future debt, or future contract or duty; but in all these 
 cases it must be founded upon a sufficient and valid con- 
 sideration. Three distinct classes of cases may be pro- 
 pounded on this subject, which require to be discriminated. 
 
 art. 141, p. 445) ; and Nduguier (Nougnier, De Change, Tom. 1, p. 311) 
 gives the same derivation. See Pardessus, Droit Comm. Tom. 2, art. 394- 
 396. Heineccius gives the guaranty the Latin name " Avallum," and 
 says : " Autenim quis fidejubet separatim, tradito instrumento fidejussionis, 
 et tunc juri cambiali adversus fidejussorem non est locus : aut in ipsis litteris 
 cambialibus fidejussio latitat, et tunc fidejussor convenitur processu cam- 
 biali. Yocari hsec fidejussio solet avallum, idque fit sola subscriptione litte- 
 rarum cambialium ab uno conscriptarum : tunc enim primus est debitor, 
 reliqui pro fidejussoribus habentur." Heineco. de Camb. cap. 3, § 26 ; Id. 
 cap. 6, § 10; Chitty on Bills, ch. 6, p. 272 (8th edit.) ; Id. ch. 7, pp. 352, 
 353 ; Story on Bills, §§ 454, 455 ; Jd. §§ 872, 333, 396 ; Code de Comm.de 
 France, art. 142 ; Codigo de Commercio (of Spain), 1829, art. 475-477. 
 
 » 3 Kent, Lect. 44, p. 121 ^Sth edit.) ; Fell on Guar. 1 ; McLaren v. 
 Watsoh's Ex'rs, 26 Wend. 425, 436; Dole ». Young, 24 Pick. 250, 252; 
 Hull V. Farmer, 5 Denio, 484. 
 
CHAP. X.] GUARANTY OF PROMISSORY NOTES. 605 
 
 (1.) Cases in which the guaranty or promise is collateral 
 to the principal contract, but is made at the same time, and 
 'becomes an essential ground of the credit given to the prin- 
 cipal or direct debtor. Here there is not, nor need be, any 
 other consideration than that moving between the creditor 
 and original debtor. (2.) Cases in which the collateral un- 
 dertaking is subsequent to the creation of the debt, and was 
 not the inducement to it, although the subsisting liability is 
 the ground of the promise, without any distinct and uncon- 
 nected inducement. Here there must be some further con- 
 sideration shown, having an immediate respect to such 
 liability ; for the consideration for the original debt will not 
 attach to this subsequent promise. (3.) A third class of 
 cases is, when the promise to pay the debt of another arises 
 out of some new and original consideration of benefit or 
 harm moving between the newly contracting parties. The 
 two first classes of cases are within the statute of frauds ; 
 but the last is not.^ 
 
 § 458. In cases of guaranty, not only is it essential that 
 there should be a sufficient and valid consideration between 
 the parties, but where they fall within the provisions of the 
 statute of frauds of 29 Car. 2, cap. 3, § 4, it has been uni- 
 formly held in England, that the consideration must also 
 appear by express words, or by just implication, upon the 
 face of the instrument itself ; and no parol proof is admissi- 
 ble to supply the defect.^ We say, that the consideration 
 
 ' Leonard v. Vredenburgh, 8 John. 29, 39 ; 3 Kent, Lect. 44, pp. 122, 
 123 (5th edit.); Manrow v. Durham, 3 Hill, 584; Hough v. Gray, 19 
 Wend. 202 ; Oakley v. Boo.rman, 21 Wend. 588 ; D'Wolf v. Eabaud, 1 
 Pet. 476, 499, 501. See Brewster v. Silence, 4 Seld. 211. 
 
 ' Wain V. Warlters, 5 East, 10 ; Saunders «. Wakefield, 4 B. & Aid. 
 595 ; Jenkins v. Reynolds, 3 Brod. & Bing. 14 ; Morley v. Boothby, 3 
 Bing. 107 ; Newbury v. Armstrong, 6 Bing. 201 ; Allnutt v. Ashenden, 5 
 M. & G. 392. See Powers v. Fowler, 30 Eng. Law & Eq. 225. In Mor- 
 ley V. Boothby, 3 Bing. 107, 111- 113, Lord Chief Justice Best expounded 
 the whole doctrjne, with admirable clearness and force, in delivering the 
 opinion of the Court. He said : " The common law protected men again§k 
 improvident contracts. If they bound themselves by deed, it was considered 
 
606 PROMISSORY NOTES. [CHAP. X. 
 
 should appear by express words, or by just implication ; for 
 it is • sufi&cient, if, by reasonable intendment from the lan- 
 guage of the instrument, the true consideration can be clearly 
 made out ; ^ and, upon this latter doctrine, there is no diver- 
 
 that they must have determined upon what they were about to do, before 
 they made so solemn an engagement ; and, therefore, it was not necessary 
 to the validity of the instrument that any consideration should appear on 
 it. In all other cases the contract was invalid, unless the party making the 
 promise was to obtain some advantage, or the party to whom it was made 
 was to suffer some inconvenience, in consequence of the one making, or the 
 other accepting, such promise. If the contract was oral, the benefit or in- 
 convenience, as well as the other parts of the contract, could only be proved 
 by parol testimony. When the contract was reduced to writing, it was 
 required, not only that the obligatory part but that the inducement or con- 
 sideration should also be in writing, because it was always a rule in the 
 law of evidence, that no parol testimony could be admitted, either to sup- 
 ply the defects, or explain the contents, of a written instrument. If the 
 writing did not prove the consideration, it could not be proved in any other 
 manner, and thus the contract failed, because the consideration, without 
 which it was altogether inoperative, could not be shown. When the statute 
 of frauds declared, that no person should be charged with the debt of 
 another, except on an agreement in writing ; if the clause in the statute 
 had not expressed (as I think it does) that the whole agreement should 
 be in writing, the law of evidence would have rendered it necessary the 
 whole should have been in writing, by declaring, as it uniformly has done, 
 that nothing could be added to the terms expressed in writing by parol 
 testimony. Applying the principle of common law to the statute, which is 
 a safe mode of construing acts of the legislature, I say, as I said in Saun- 
 ders V. Wakefield, that, if I had never heard of Wain v. Warlters, I should 
 have' held, that a consideration must appear on the face of the written 
 instrument. It must also occur to any one, that, to attain the avowedobject 
 of the statute of frauds (namely, the prevention of perjury), it is more 
 necessary to require that the consideration of a bargain should appear in 
 writing, than any other term or condition of it. That the consideration 
 should appear on the instrument, not in any set, formal terms, but with 
 clearness enough for the Courts to judge of its sufficiency, is now fully 
 estabhshed by Wain v. Warlters, and Saunders v. Wakefield, in the King's 
 Bench, and Jenkins v. Reynolds, in this Court." 
 
 ' Stadt V. Lill, 9 East, 348 ; Warrington ». Furbor, 8 East, 242 ; Wain 
 V. Warlters, 5 East, 10 ; Hawesw. Armstrong, 1 Bing. (N. C.) 761 ; Kussell 
 w. Moseley, 3 Brod. & Bing. 211 ; Lysaght v. Walker, 5 BJigh (N. S.), 1 ; 
 Shortrede v. Cheek, 1 A. & El. 57 ; Jarvis v. Wilkins, 7 M. & W. 410; 
 Newbury v. Armstrong, 6 Bing. 201 ; Emmott v. Kearns, 5 Bing. (N. C.) 
 
CHAP. X.] GUARANTY OF PROMISSORY NOTES. 607 
 
 sity between the English and the American authorities. The 
 latter, indeed, have gone the length of holding, that, if the 
 guaranty is stated on its face to be for " value received," 
 that alone, without further explanation, is a sufficient ex- 
 pression of the nature of the consideration.^ 
 
 § 459. But upon the point, whether the consideration 
 should appear upon the face of the instrument of guaranty, 
 there is a wide departure in some of the American authorities 
 from the doctrine maintained in England, even where the 
 statute of frauds has been adopted into the jurisprudence of 
 the particular State.^ In some States it has been held, that 
 the promise only, and not the consideration, need appear on 
 the face of the instrument.^ In others, the English doctrine, 
 although recognized, has been qualified, and it has been held, 
 that if the original contract and the guaranty are contempo- 
 raneous, there, no other consideration need be shown, than 
 that which belongs to, or is found in, the original contract ; 
 and that parol proof is admissible to show what that consid- 
 eration is, without any distinction," whether the guaranty is 
 on the same, or on a separate instrument.* Indeed (as we 
 
 559 ; Stead v. Liddard, 1 Bing. 196 ; Union Bank v. Coster, 3 Comst. 203 ; 
 Staats V. Howlett, 4 Denio, 559. 
 
 ' Douglass V. Howland, 24 Wend. 35 ; Watson v. McLaren, 19 Wend. 
 657 ; S. C, 26 Wend. 425 ; Miller v. Gaston, 2 Hill, 188 ; Manrow v. Dur- 
 ham, 3 Hill, 584; Brewster v. Silence, 4 Seld. 211; Fyler t. Givens, 8 
 Hill (S. C), 48 ; post, §§ 464, 465 ; 3 Kent, Lect. 44, p. 122, note ; Cooper 
 V. Dedrick, 22 Barb. 516 ; Day v. Elmore, 4 Wis. 190 ; post, § 469. 
 
 ' 3 Kent, Lect. 44, pp. 121, 122 (5tli edit.). 
 
 ' Packard v. Richardson, 17 Mass. 122 ; Miller v. Irvine, 1 Dev. & Bat. 
 (N. C.) 103 ; Sage v. Wilcox, 6 Conn. 81. 
 
 * Leonard v. Vredenburgh, 8 John. 29 ; Sears v. Brink, 3 John. 210 ; 
 
 3 Kent, Lect. 44, pp. 121, 122 (5th edit.) ; Bayley v. Freeman, 11 John. 
 221 ; D'Wolf V. Kabaud, 1 Pet. 476, 499, 501. See Stead v. Liddard, 1 
 Bing. 196. The ground of this doctrine was stated by Mr. Chief Justice 
 Kent, in delivering the opinion of the Court, in Leonard v. Vredenburgh, 8 
 John. 29, 39. [But Leonard v. Vredenburgh was expressly disapproved in 
 the late case of Brewster v. Silence, 4 Seld. 211. And see Weed v. Clark, 
 
 4 Sandf. 31 ; Spicer v. Norton, 13 Barb. 542 ; Moore v. Cross, 19 Law 
 Rep. 671.] In that case goods were sold on credit by Leonard to Johnson, 
 
6Q8 PROMISSORY NOTES. [CHAP. X. 
 
 shall presently see), the doctrine in some of th^, American 
 courts has gone further ; and it has been held, that in cases 
 
 and the latter gave his Promissory Note therefor, payable in sixty days 
 to Leonard ; and Vredenburgh, at the same time, wrote on the back of the 
 Note, " I guarantee the above." The learned Judge, after adverting to 
 the fact that the case was within the statute of frauds, said : " If there was 
 no consideration other than the original transaction, the plaintiff ought to 
 have be^ permitted to show that fact, if necessary, by parol proof; and 
 the decision in Wain v. Warlters did not stand in the way. The whole 
 agreement between the plaintiff and defendant consisted in the promise to 
 guarantee the debt of Johnson. To say that the promise is void, for want 
 of disclosing a consideration, is assuming what the plaintiff offered to show 
 ought not to be assumed, for there was no distinct consideration passing 
 between the plaintiff and the defendant. Johnson's Note, given for value 
 received, and, of course, importing a consideration on its face, was all the 
 consideration requisite to be shown. The paper disclosed that the defend- 
 ant guaranteed this debt of Johnson ; and, if it was all one transaction, the 
 value received was evidence of a consideration embracing both the promises. 
 The writing imported, upon the face of it, one original and entire transac- 
 tion ; for a guaranty of a contract implies, ex vi termini, that it was a con- 
 current act, and part of the original agreement. In Stadt v. Lill, 9 East, 
 348, the defendant gave a guaranty in this form : ' I guarantee the pay^ 
 ment of any goods which Stadt delivers to Nichols ' ; and the King's Bench 
 held, that ' the stipulated delivery of the goods to Nichols was a considera- 
 tion appearing on the face of the writing, and, when the delivery took place, 
 the consideration attached.' The writing, in the present case, was of 
 equivalent import and effect. Instead of saying that he guaranteed the 
 payment of goods delivered to Johnson, the defendant guaranteed the pay- 
 ment of the value received by Johnson. Upon the whole, we think that 
 the plaintiff was entitled to recover upon production and proof of the writ- 
 ing. But, if there was any doubt upon the face of the paper, whether the 
 promise of Johnson and that of the defendant were or were not concur- 
 rent, and one and the same communication, the parol proof was admissible 
 to show that fact." In D'Wolf v. Rabaud, 1 Pet. 476, 499-501, the sub- 
 ject was also discussed in the Supreme Court of the United States. It was 
 a case originating in New York. On that occasion the Court said : " The 
 statute of frauds of New York is a transcript, on this subject, of the statute 
 of 29 Charles 2, ch. 3. It declares, ' that no action shall be brought, to 
 charge a defendant on a special promise for the debt, default, or miscarriage 
 of another, unless the agreement, or some memorandum or note thereof, be 
 in writing and signed by the party, or by any one by him authorized.' The 
 terms ' collateral ' or ' original ' promise do not occur in the statute, and 
 have been introduced by courts of law, to explain its objects, and expound 
 its true interpretation. Whether, by the true intent of the statute, it was 
 
CHAP. X.] GUARANTY OF PROMISSORY NOTES. 609 
 
 of a written guaranty on the back of a Note (whether con- 
 temporaneous or not), not only may parol evidence be given 
 
 to extend to cases where tlie collateral promise (so called) was a part of the 
 original agreement, and founded on the same consideration, moving at the 
 same time between the parties ; or, whether it was confined to cases where 
 there was already a subsisting debt and demand, and the promise was 
 merely founded upon a subsequent and distinct undertaking ; might, if the 
 point were entirely new, deserve very grave deliberation. But it has been 
 closed within very narrow limits by the course of the authorities, £^nd seems 
 scarcely open for general examination ; at least in those States where the 
 English authorities have been fully recognized and adopted in practice., J£ 
 A agree to advance B a sum of money, for which B is to be answerable, 
 but, at the same time, it is expressed upon the undertaking, that C will do 
 some act for the security of A, and enter into an agreement with A for that 
 purpose, it would scarcely seem a ease of mere collateral undertaking ; but 
 rather, if one might use the phrase, a trilateral contract. The contract of 
 B to repay the money is not' coincident with, nor the same contract with C, 
 to do the act. Each is an original promise, though the one may be deemed 
 subsidiary, or secondary, to the other. The original consideration flows 
 from A, not solely upon the promise of B or C, but upon the promise of 
 both, diverso intuito, and each becomes liable to A, not upon a joint, but a 
 several, original undertaking. Each is a direct, original promise, founded 
 upon the same consideration. The credit is not given solely to either, but 
 to both ; not as joint contractors, on the same contract, but as separate 
 contractors, upon coexisting pontracts, forming parts of the same general 
 transaction. Of that very nature is the contract now before the Court ; 
 and if the intention of all the parties was, that the letter of the 15th of No- 
 vember should be delivered to Belknap as evidence of the original agree- 
 ment between all the parties, and, indeed, as part execution of it, to bind 
 the defendant, not merely to George D'Wolf, but to the plaintifis (and so 
 it has been established by the verdict), then it is not very easy to distinguish 
 the case from that which was put. But assuming that the true construction 
 of the statute of frauds is as the authorities seem to support, and that such 
 a promise would be within its purview, it remains to consider, whether the 
 arguments at the bar do establish any error, in the opinion of the Circuit 
 Court. In the first place, there is no repugnance between the terms of that 
 letter, and the parol evidence introduced. The object of the letter was, to 
 establish the fact that there was a sufficient consideration for the agree- 
 ment ; and what that consideration was, and also the circumstances under 
 which it was written, as explanatory of its nature and objects. Its terms 
 do not necessarily import that it was an agreement exclusively between 
 George D'Wolf and the defendant. If the paper was so drawn up and ex- 
 ecuted, by the assent of all the parties, for the purpose of being delivered 
 to Belknap, as a voucher, and evidence to him of an absolute agreement 
 39 
 
610 PROMISSORY NOTES. [CHAP. X. 
 
 to establish the consideration, when none is expressed ; but, 
 where the indorsement is in blank, on the back of a pre-ex- 
 
 by the defendant to make the shipment, and so was in fact understood by- 
 all 'the parties at the time ; there is nothing in its terms inconsistent with 
 such an interpretation. The defendant agrees to the shipment. But with 
 whom ? It is said, with George D'Wolf alone ; but that does not necessa- 
 rily follow, because it is not an instrument in its terms inter paries. If the 
 parties intended that it should express the joint assent of George D'Wolf 
 and the defendant to the shipment, and it was deliverable to Belknap ac- 
 cordingly, as evidence of their joint assent that it should be made upon the 
 terms and in the manner stated in it, there is nothing which contradicts its 
 proper purport ; and it is then precisely what the parties require it to be. 
 It was for the jury to say, whether the evidence disclosed that as the true 
 object of it ; and to give it effect, accordingly, as proof of an agreement, in 
 support of the declaration. The case of Sargent v. Morris, 3 B. & Aid. 
 277, furnishes no uninstructive analogy for its admission. In the next 
 place, was the parol evidence inadmissible to supply the defect of the 
 written instrument, as to the consideration, and res gestae, between the 
 parties? The case of Wain v. Warlters, 5 East, 10, was the first case 
 which settled the point, that it was necessary, to escape from the statute of 
 frauds, that the agreement should contain the consideration for the promise, 
 as well as the promise itself If it contained it, it has since been determined, 
 that it is wholly immaterial whether the consideration be stated in express 
 terms, or by necessary implication. That case has, from its origin, encoun- 
 tered many difficulties, and been matter of serious observation, both at the 
 bar and on the bench, in England and America. After many doubts, it 
 seems at last, in England, by the recent decisions of Saunders v. Wakefield, 
 4 B. & Aid. 595, and Jenkins v. Reynolds, 3 Brod. & Bing. 14, to have 
 settled down into an approved authority. It has, however, not received a 
 uniform recognition in America ; although in several of the States, and 
 particularly in New York, it has, to a limited extent, been adopted into its 
 jurisprudence, as a sound construction of the statute. On the other hand, 
 there is a very elaborate opinion of the Supreme Court of Massachusetts, in 
 Packard v. Richardson, 17 Mass. 122, where its authority was directly over- 
 ruled. What might be our own view of the question, unaffected by any 
 local decision, it is unnecessary to suggest ; because the decisions in New 
 York, upon the construction of its own statute, and the extent of the rules 
 deduced from it, furnish, in the present case, a clear guide for this Court. 
 In the case of Leonard v. Vredenburgh, 8 John. 29, Mr. Chief Justice Kent, 
 in delivering the opinion of the Court, adverting to the fact, that that case 
 was one of a guaranty, or promise collateral to the principal contract, but 
 made at the same time, and becoming an essential ground of the credit 
 given to the principal or direct debtor, added, ' and if there was no consid- 
 eration other than the original transaction, the plaintiff ought to have been 
 
CHAP. X.J GUARANTY OF PROMISSORY NOTES". 611 
 
 isting Note, parol evidence may be admitted to establish the 
 terms of the guaranty, as well as the consideration, and the 
 bla,nk be filled up accordingly. i It is not, however, our in- 
 tention, in this place, to examine the doctrines applicable to 
 guaranty in general, and the subsequent remarks will be 
 limited to cases of the guaranty of Promissory Notes and the 
 obligations created thereby. 
 
 § 460. Supposing the existence and validity of the guar- 
 anty sufficiently established, it remains, under this head, to 
 consider, what is the true nature and extent of the obligation 
 created thereby. By the law of Prance, and, indeed, by that 
 of the continental nations of Europe in general, the guarantor 
 of negotiable paper is responsible, in the same manner as the 
 drawer and indorsers of a Bill of Exchange, for whom the 
 guaranty is given, unless there be a stipulation to the con- 
 trary, whether the guaranty be on the same instrument, or 
 on a separate instrument.^ By our law the obligation of an 
 
 permitted to show that fact, if necessary, by parol proof; and the decision 
 in Wain v. Warlters did not stand in the way.' One of the points in that 
 case was, whether the parol proof of the consideration was not improperly 
 rejected at thq trial ; and the decision of the Court was, that it ought to 
 have been admitted. It is not, therefore, as was suggested at the argument, 
 a mere ailiiter dictum, uncalled for by the case. It was one, though not the 
 only one, of the points in judgment before the Court. The same doctrine 
 has been subsequently recognized by the same Court, in Bailey v. Freeman, 
 11 John. 221, and in Nelson v. Dubois, 13 John. 175." See also 3 Kent, 
 Lect. 44, pp. 122, 123 (5th edit.) ; Emmott v. Kearns, 5 Bing. (N. C.) 559 ; 
 Manrow v. Durham, 3 Hill, 584 ; Hough v. Gray, 19 Wend. 202. But see 
 Packer v. Willson, 15 Wend. 343 ; Hunt v. Brown, 5 Hill, 145 ; Hull v. 
 Farmer, 5 Denio, 584. [In the latter case, the New York authorities 
 on this subject are reviewed, and the English doctrine recognized. See, 
 ;)0S<, § 472, note.] Posi, §§ 467-469. 
 
 ' Josselyn v. Ames, 3 Mass. 274 ; Ulen v. Kittredge, 7 Mass. 233 ; Ox- 
 ford Bank v. Haynes, 8 Pick. 423 ; Tenney v. Prince, 4 Pick. 385 ; White 
 V. Howland, 9 Mass. 314; Moies v. Bird, 11 Mass. 436 ; Beckwith v. An- 
 gell, 6 Conn. 315; Dean v. Hall, 17 Wend. 214; Oakley v. Boorman, '21 
 Wend. 588; Hough v. Gray, 19 Wend. 202; Miller w. Gaston, 2 Hill, 188, 
 191 ; Johnson v. Wilmarth, 13 Met. 416. 
 
 ° Code de Comm. art. 142 ; Story on Bills, § 435 ; Pardessus, Droit 
 Comm. Tom. 2, art. 394, 396, 397. See also Heinecc. de Camb. cap. 3, 
 
612 PROMISSORY NOTES. [CHAP. X, 
 
 indorser and that of a guarantor are ordinarily rery differ- 
 ent. Each, indeed, is a conditional obligation ; but the con- 
 dition is not, or, at least, may not be, the same. In the case 
 of an indorsement, the indorser contracts to be liable to pay 
 the Note, in case of its dishonor, if it is duly presented for 
 payment to the maker at its maturity, and due notice is given 
 to him of the dishonor, and not otherwise.^ In the case of a 
 guaranty, the rule is not equally strict ; and the guarantor 
 contracts, that, upon the dishonor of the Note, he will pay 
 the amount, upon a presentment being made to the maker, 
 and notice given him of the dishonor within a reasonable 
 time ; and this reasonable time is ordinarily measured by the 
 fact, whether, by the omission to make due presentment at 
 the maturity of the Note, and to give him due notice of the 
 dishonor, he, the guarantor, has sustained any loss or injury. 
 If he has, then he is exonerated, pro tanto ; if he has not sus- 
 tained any loss or injury, then he is liable for the whole 
 Note.^ So that punctual presentment for payment and 
 punctual notice to the guarantor are not indispensable, to 
 charge him ; whereas both are ordinarily indispensable to 
 charge the indorser. In this respect, our law applies to 
 
 §§ 26 - 28 ; Pothier, De Change, n. 50 ; Savary, Le Parfait Negociant, 
 Tom. 1, Pt. 1, Liv. 3, ch. 8, p. 205 ; Id. Tom. 2, Pt. U, p. 94 ; post, § 464. 
 
 ' Ante, § 135. 
 
 ' Ante,^^ 133,134, 147, and note; Bayley on Bills, ch. 7, § 2, pp. 286 - 290 
 (5th edit.) ; 1 Bell, Comm. B. 3, Pt. 1, ch. 2, § 4, p. 377 (5th edit.) ; Chitty 
 on Bills, ch. 10, pp. 474-476, 529 (8th edit.) ; Story on Bills, § 305, and 
 note, §§ 372, 393 ; Warrington v. Furbor, 8 East, 242, 245 ; Philips v. Ast- 
 ling, 2 Taunt. 206, 211, 212; Hitchcock v. Humfrey, 5 M. & G. 559, 568, 
 569 ; Oxford Bank v. Haynes, 8 Pick. 423, 428 ; Babcock v. Bryant, 12 
 Pick. 133 ; Salisbury u. Hale, 12 Pick. 416 ; Thomas v. Davis, 14 Pick. 353 ; 
 Talbot V. Gay, 18 Pick. 534; Dole v. Young, 24 Pick. 250; Beckwith v. 
 Angell, 6 Conn. 315; Gibbs b. Cannon, 9 S. & R. 202; Douglass v. Rey- 
 nolds, 7 Pet. 113 ;.Loveland v. Shepard, 2 Hill, 139 ; Douglas v. Rowland, 
 24 -Wend. 35; Lewis v. Brewster, 2 McLean, 21 ; Foote v. Brown, 2 Mc- 
 Lean, 369 ; Hank v. Crittenden, 2 McLean, 557 ; Skofield v. Haley, 22 
 Maine, 164; Howe v. Nickels, 22 Maine, 175; Thrasher v. Ely, 2 S. & M. 
 139 ; Hall v. Rogers, 7 Humph. 536 ; Lewis v. Harvey, 18 Mis. 74. But 
 see Walton v. Maacall, 13 M. & W. 72. 
 
CHAP. X.] GUARANTY OF PROMISSORY NOTES. 618 
 
 cases of guaranty the same rule which the law of France ap- 
 plies to all cases of the drawing and indorsement of Bills of 
 Exchange ; that is, it exonerates the drawer, and ipdorsers, 
 ^nd guarantors, in all cases, so far, and so far only, as they 
 have sustained loss or injury, from the want of due present- 
 ment or due notice of the dishonor.^ 
 
 § 461. Such, then, is the general nature and effect of the 
 obligation of the guaranty of a Promissory Note, created by 
 mere intendment and operation of law, where no other stipu- 
 lation exists between the parties. But it is competent for the 
 parties to shape and modify the obligation and effect of a 
 guaranty, as they may of an indorsement, in any manner 
 which their own convenience, or pleasure, or interests may 
 dictate. Thus, an indorser may, by the form of his indorse- 
 ment, make himself absolutely and positively, in all events, 
 liable for the payment of the Note, with or without due pre- 
 sentment or due notice.^ In like manner, a guarantor may 
 incur an absolute and positive liability to pay the Note, at all 
 events. And indeed (as we shall presently see), he may, 
 by the form and time and circumstances under which the 
 guaranty is given, make himself responsible, as a sole and sepa- 
 rate, or as a joint, or a joint and several maker upon the NotCj 
 and not merely as a guarantor, in the strict sense of the word. 
 ■ § 462. The like distinction between the obligation of a 
 guarantor, so called, and a surety or co-promisor, is equally 
 as well known, and acted upon, in the foreign law, as in ours. 
 Thus, Heineccius says : " Multum ergo interest inter avallum 
 et obligationem correalem, quae potissimum in cambiis propriis 
 locum habet, quaque tenentur, qui se in solidum in cambio 
 obligarunt : fidejussor enim, si debitor principalis solvendo est, 
 tantum in subsidium ; correus in solidum priricipaliter tene- 
 
 • ^n(g,§§318, 370; Pothier, De Change, n. 156, 157; Story on Bills, 
 §§ 393-395, 478, and note; Kemble v. Mills, 1 M. & G. 762, the Report- 
 er's note 6 ; Ccisaregis, De Coram. Discur. 54 ; Baldasseroni, Leggi e 
 Costumi del Camb. Pt. 2, art. 10, § 35. 
 
 ' Ante, § 147, and note ; Donley v. Camp, 22 Ala. 659 ; Story on Bills, 
 §§ 215, 371. 
 
614 PROMISSORY NOTES. [CHAP. X. 
 
 tur, sive altpr correus solvendo sit, sive non sit, quamvis uno 
 solvente alter liberetur." ^ The distinction is also preserved, 
 in the foreign law, between the character- of a guarantor 
 and that of an indorser, although, in most cases, the liabilj,- 
 ties and rights of each are governed by the same rules. If 
 the party writes his nam« at the bottom of a Bill of Ex- 
 change or a Promissory Note, with the word " aval," or in 
 blank, he is deemed a guarantor; if on the back, he is 
 deemed an indorser, unless, perhaps, where the language 
 used, or the circumstances, repel the presumption, or control 
 the inference. ^ 
 
 .§ 463. In the second place, then, as to the different forms 
 or modes in which the guaranty of a Promissory Note may 
 arise. It may be (as in cases of Bills of Exchange), (1.) 
 By an independent written instrument ; or, (2.) By a writ- 
 ing on the Note itself.^ 
 
 § 464. In respect to the first class of cases, that where the 
 guaranty is upon a separate instrument, we shall necessarily 
 be brief, as, for the most part, by our law, the same principles 
 will apply to that class as apply to the class of cases where 
 the guaranty is on the same paper with the' Note itself. The 
 principal difference is, that, where the guaranty is on a sepa- 
 rate instrument, it must contain on its face a sufficient refer- 
 ence to the Note intended to be guaranteed, to identify it and 
 give it certainty. Where it is on the Note itself, the identity 
 and certainty are sufficiently apparent from the language of 
 the paper itself. Perhaps another difiference may exist (al- 
 though no question of this nature seems to have occurred 
 directly in judgment), and that is, that a guaranty on the 
 back of the Note may be (as we shall presently see) by a 
 blank indorsement of the guarantor, and may be filled up 
 
 • Heinecc. de Camb. cap. 3, § 27. 
 
 ' Story on Bills, § 455 ; Savary, Le Parfait Ndgooiant, Tom. 2, Pt. 14, 
 p. 94. 
 
 " Pettier, De Change, n. 50 ; Story on- Bills, § 454; Id. J§ S94, 398 ; 
 Code de Comm. de France, art. 142 ; Codigo de Commercio (of Spain), 
 art. 476. 
 
CHAP. X.] GUARANTY OF PROMISSORY NOTES. 615 
 
 afterwards at the pleasure of the holder, so only as it conforms 
 to the actual intention of the parties. Whereas it admits of 
 the greatest doubt, whether a blank signature upon a sepa- 
 rate paper could be afterwards filled up, so as to import a 
 guaranty, without breaking in upon all the purposes intended 
 to be attained by the statute of frauds. In respect to the cofi- 
 sideration, there does not, by the law as administered in 
 America, seem to be any difference between the two classes 
 of cases, or at least none where the guaranty is contem- 
 poraneous with the making of the Note, and a part of the 
 res gestce; for, in each case, it is not necessary to be apparent 
 on the instrument, but it may be established by parol proofs 
 aliunde.''- In other respects, and especially in the duty of the 
 guarantee, as to diligence in presenting the Note for payment, 
 and giving notice of the dishonor to the guarantor, the law 
 is the same, whether the guaranty is on the Note itself, or on 
 a separate instrument.^ 
 
 § 465. A few cases may serve to illustrate the doctrine 
 applicable to guaranty by a separate instrument. Thus, 
 where A wrote the following memorandum : " I hereby guar- 
 antee the present account of Miss H. M., due to B. & Co., of 
 £112 4s. ^d., and what she may contract from this date to 
 SOth of September next " ; upon an objection taken, the Court 
 held, that the consideration sufficiently appeared upon the 
 face of the instrument.^ The ground seems to have been, 
 
 ' Ante, § 459. 
 
 ' Ante, § 460. Where the guaranty of a Bill of Exchange is written 
 upon a separate instrument, it is, upon the continent of Europe, governed 
 by somewhat different remedies from what exists where it is written on the 
 Bill itself. In the former case, the holder is entitled only to the common 
 action or remedy upon the contract against the guarantor ; but, in the lat- 
 ter case, the holder is entitled to the same summary remedy as he has on 
 Bills, jura cambiali. Story on Bills, § 395. The obligations, also, of the 
 holder, in respect to protest for non-payment, and notice of the dishonor to 
 the guarantor, are the same, where the guaranty is on the Bill, as it is to 
 the regular parties on the Bill. Story on Bills, §§ 372, 393 - 395, 454, 455. 
 
 ' Kussell V. Moseley, 3 Brod. & Bing. 211. But see Wood v. Benson, 2 
 C. & J. 95 ; 2 Tyrw. 98 ; Raikes v. Todd, 8 A. & El. 846, which seem 
 contra. See also Haigh v. Brooks, 10 A. & El. 309. 
 
616 PROMISSORY NOTES. [CHAP. X. 
 
 that the consideration was for a future credit, as well as the 
 past credit, and the guaranty was founded upon their con- 
 joint operation, and it was not necessary that the considera- 
 tion and the promise should be co-extensive.^ So, where A 
 wrote to B : " You will be so good as to withdraw the Prom- 
 issory Note, and I will see you at Christmas, when you shall 
 receive from me the amount, together with a memorandum 
 of my son's making, in the whole ^£45 " ; it was held, that 
 parol evidence was admissible to prove that the Note referred 
 to was for £35, and that the withdrawal of the Note was 
 sufficient to satisfy the statute of frauds.^ So, where A wrote 
 a letter to B, as follows : " W. being disappointed in receiv- 
 ing remittances, and you expressing yourself inconvenienced 
 for money, I send you his acceptance at two months." B 
 refused to take the Bill unless A would put his name on it ; 
 and A thereupon wrote upon the back of the letter : " I will 
 see the Bill paid for W." ; it was held to be a valid guaranty 
 for a sufficient consideration apparent on the paper.^ So, 
 where A wrote on a separate paper the following memoran- 
 dum, on the same day the Note was made : " I hereby guar- 
 antee the payment of a Note at sixty days, drawn by B & C, 
 payable to the order of D, E, & P, for value received," it was 
 held, that the words " value received " were a sufficient de- 
 scription of the consideration, and that a person who first 
 took the Note, and advanced money on the faith of the guar-' 
 anty, although his name was not stated on the guaranty, was 
 entitled to maintain an action thereon.* 
 
 § 466. In the next place, as to a guaranty upon the Note 
 itself. We have already seen,^ that it is in some cases a mat- 
 
 ' See Weed v. Clark, 4 Sandf. 31 ; Brewster v. Silence, H Barb. 144; 
 4 Seld. 211 ; Steele v. Hoe, 14 Q. B. 431-; Edwards v. Jevons, 8 M., G. & 
 S. 436. 
 
 ' Shortrede v. Cheek, 1 A. & EI. 57. 
 
 ' Emmott V. Eearns, 5 Bing. (N. C.) 559. 
 
 * Watson's Ex'rs v. McLaren, 19 Wend. 557; S. C, 26 Wend. 425 ; 
 ante, § 458. 
 
 ' Ante, §§ 13, 33. 
 
CHAP. X.] GUARANTY OF PEOMISSOBY NQTES. 617 
 
 ter of no inconsiderable nicety and difficulty to decide, 
 whether, upon the matters apparent upon the Note itself, a 
 particular party is to be deemed a promisor, or a co-prom- 
 isor, or a surety, or a guarantor, or an indorser. "Where a 
 Note is made in the names of two persons, and is signed by 
 both, the one " as principal," and the other " as surety," 
 there is no doubt that, as to the payee and subsequent par- 
 ties, it is to be deemed the joint Note of both ; and if the 
 language be : " We jointly and severally promise," it is the 
 joint and several Note of both.i The same result will arise 
 if two persons sign a Note drawn in these terms : " I promise 
 to pay," and one sign as principal, and another as surety ; 
 for it will be the joint and several Note of both.^ 
 
 § 467. These are cases, comparatively speaking, simple in 
 their structure and interpretation. But suppose the Note 
 were drawn in the common form : " I promise," &c., and 
 signed by one person as maker, and below his signature an- 
 other person Should, on the face of the Note, write the fol- 
 lowing words : " I acknowledge myself holden as surety for 
 the payment of the demand of the above Note " ; the ques- 
 tion would then arise, whether he was to be held liable as a 
 joint promisor, or as a .surety upon an independent promise.* 
 And very different consequences might follow from the one 
 interpretation from those which would belong to the other. 
 If treated as an independent promise, it might, under cer- 
 tain circumstances, be within the statute of frauds, and a 
 distinct consideration should either appear upon its face, or 
 at least be proved, to make it an available contract.* But, if 
 treated as a joint and concurrent contract, it would be obli- 
 gatory both upon the principal and surety, as joint makers, 
 
 ' Ante, § 57. 
 
 ' Ante, § 57 ; Hunt v. Adams, 5 Mass. 358, 361. 
 
 ' Hunt V. Adams, 5 Mass. 358 ; Ibid. 6 Mass. 519. 
 
 ' Ibid. ; Tenney v. Prince, 4 Pick. 385 ; S. C, 7 Pick. 243. See Bar- 
 rows V. Lane, 5 Verm. 161 ; Hodgkins v. Bond, 1 N. H. 284 ; Oxford Bank 
 V. Haynes, 8 Pick. 423, 426 ; Douglass v. Rowland, 24 Wend. 35, 40 ; 
 Bewley v. Whiteford, 1 Hayes, Irish Ex. 356. 
 
618 PROMISSORY NOTES. [CHAP. X. 
 
 and would require no proof of any distinct consideration to 
 support it.^ On the other hand, the interpretation might be 
 materially affected by the fact, whether the signatures and 
 contracts were contemporaneous and a. part of one and the 
 same general transaction (a part of the res gestce), or whether 
 
 ' Ibid.; ante, §§ 57, 133. The distinction is very clearly stated by Mr. 
 Chancellor Kent in his Gommentaries (3 Kent, Lect. 44, pp. 121 - 123, 6th 
 edit.). He there says : " The English statute of frauds, which has been 
 adopted throughout this country, requires that, ' upon any special promise 
 to answer for the debt, default, or miscarriage of another person, the agree- 
 ment, or some memorandum or note thereof, must be in writing, and signed 
 by the party to be charged therewith, or some other person thereunto by 
 him lawfully authorized.' An agreement to become a guarantor, or surety, 
 for another's engagement, is within the statute ; and if it be a guaranty for 
 the subsisting debt or engagement of another person, not only the engage- 
 ment, but the consideration for it, must appear in the writing. The word 
 ' agreement,' in the statute, includes the consideration for the promise, as 
 well as the promise itself, for without a consideration there is no valid agree- 
 ment. This was the decision in the case of Wain v. Warlters ; and though 
 that decision has been frequently questioned, it has since .received the de- 
 cided approbation of the Courts of Law ; and the Lord Chief Justice of 
 the Common Pleas (Best), observed, that he should have so decided, if he 
 had never heard of the ease of Wain v. Warlters. The English construc- 
 tion of the statute of frauds has been adopted in New York and South 
 Carolina, and rejected in several other States. The decisions have all 
 turned upon the force of the word ' agreement ' ; and where, by statute, 
 the word ' promise ' has been introduced, by requiring ' the promise or agree- 
 ment' to be in writing, as in Virginia and Tennessee, the construction has 
 not been so strict. Where the guaranty or promise, though collateral to the 
 principal contract, is made at the same time with the principal contract, and 
 becomes an essential ground of the credit given to the principal debtor, 
 the whole is one original and entire transaction, and the consideration 
 extends and sustains the promise of the principal debtor, and also 
 of the guarantor. No other consideration need be shown than that 
 for the original agreement, upon which the whole debt rested, and that 
 may be shown by parol proof, as not being within the statute. If, how- 
 ever, the guaranty be of a previously existing debt of another, considera- 
 tion is necessary to be shown, and that must appear in writing, as part of 
 the collateral undertaking ; for the consideration for the original debt will 
 not attach to this subsequent promise ; and to such a case the doctrine in 
 Wain V. Warlters applies. But if the promise to pay the debt of another 
 arises out of some new and original consideration of benefit or harm mov- 
 ing between the newly contracted parties, it is then not a case within the 
 statute." 
 
CHAP. X.] GUARANTY OP PROMISSORY NOTES. 619 
 
 the Note was first made and signed by the principal, as a 
 distinct transaction, and afterwards, at another time, the 
 contract of the surety was made, as a distinct and indepen- 
 dent transaction.^ And accordingly, in a case like that above 
 supposed, where it appeared that the whole contract took 
 efiFect at one and the same time, as different parts of one 
 entire transaction, it was held, that both the principal and 
 the surety were to be deemed joint contractors and joint 
 makers of the Note.^ But if the contracts had been entered 
 into at different times, the contract of the surety would have 
 been deemed in the nature of a guaranty, collateral to the 
 Note, and governed by the general principles applicable to 
 guaranty.^ 
 
 § 468. Similar principles have been applied to the inter- 
 pretation of a contract written on the back of the Note. 
 Thus, where A made a Note, payable to B or order, for a 
 
 ' Ibid. ; Baker v. Briggs, 8 Pick. 122. See Ulen v. Kittredge, 7 Mass. 
 233 ; ante, § 133 ; 3 Kent, Lect. 44, p. 122 (5th edit.) ; Oxford Bank v. 
 Haynes, 8 Pick. 423, 426. 
 
 ' Hunt V. Adams, 5 Mass. 358. The case was as follows : Chaplin made 
 a Note for $1,500, payable to Bennet. Before the Note was delivered to 
 Bennet, Adams signed the following agreement written upon the Note : " I 
 acknowledge myself holden as surety for the payment of the demand of the 
 above Note." Bennet's administrator brought an actibn against Adams, 
 declaring, 1. Upon a Note signed by the defendant solely ; 2. On a Note 
 made by him jointly and severally with Chaplin. Parsons, C. J. delivered 
 the opinion of the Court. " The defendant is an original party to the con- 
 tract. This mode of signing entitles the defendant, if he pays the Note, to 
 an indemnity from Chaplin. But, as to the intestate, they must be consid- 
 ered as joint and several promisors. The legal effect of this Note does not 
 differ from one written, ' For value received, I promise to pay,' &c., and 
 signed by one with ' principal ' annexed to his name, and jby another with 
 ' surety ' thus annexed." Hunt v. Adams, 5 Mass. 358. In another action 
 between the same parties on another contract, not materially varying from 
 the above, the Court continued of the same opinion. Hunt v. Adams, 6 
 Mass. 519. 
 
 ' Ibid. See also Carver v. Warren, 5 Mass. 545 ; ante, § 133 ; 3 Kent, 
 Lect. 44, p. 122 (5th edit.) ; Oxford Bank v. Haynes, 8 Pick. 423, 426- 
 428; Amsbaugh v. Gearhart, 11 Penn. St. 482 ; White v. Stone, 8 'Gray, 
 589 ; ,Green v. Shepherd, 5 Allen, 589 ; Courtney v. Doyle, 10 Allen, 122. 
 
620 PROMISSORY NOTES. [CHAP. X. 
 
 certain sum of money, and at the same time, under the same 
 date, C and D indorsed on the back of the Note, " For value 
 received, we jointly and severally undertake to pay the 
 money within mentioned to the said B," it was held, that each 
 of the indorsers was to be treated as a joint and several 
 promisor with A on the Note, and as if he had, on the face 
 of the Note, signed the same as surety.^ So, where A in- 
 dorsed on a joint and several Note, payable to B or bearer, 
 at the time when it was made, " For value received, I guar- 
 antee the payment of the within Note, and waive notice of 
 non-payment," it was held that A was bound as a joint and 
 several maker, and in the same manner as if he had signed 
 the Note as surety.^ So, where, on a Note payable to B or 
 bearer. A, at the time of making it, indorsed on it, " This 
 may certify, that I guarantee the payment of the within 
 Note," it was held, that A was bound as a joint and several 
 maker.* So, where A, long after a Note, payable to B or 
 bearer, was made, but before it was due, indorsed on it, 
 " For value received, I guarantee the payment and collection 
 of the within Note to C or bearer, it was held, that A was 
 liable thereon, as a several maker of the Note.* So, where 
 the payee of a negotiable Note indorsed on it, " For value 
 received, I assign. Sell, and guarantee the payment of the 
 within Note to A or bearer," it was held, that the payee was 
 absolutely bound to pay the Note, and that A might main- 
 tain an action thereon against the payee, without any proof 
 •of demand on the maker, or notice to the payee.® So, where 
 
 • White V. Howland, 9 Mass. 314 ; Carver v. Warren, 5 Mass. 545. See 
 also Sumner v. Gay, 4 Pick. 311 ; Baker v. Briggs, 8 Pick. 122 ; Guidrey 
 V. Vives, 15 Martin, 659 ; Nelson v. Dubois, 13 John. 175. 
 
 ' Luqueer v. Prosser, 1 Hill, 256 ; S. C, 4 Hill, 420 ; Manrow v. Dur- 
 ham, 3 Hill, 584. See also Ketchell v. Bums, 24 Wend. 456. [But these 
 cases have since been disapproved in the same State. Brewster v. Silence, 
 4 Seld. 207.] 
 
 ' Hough V. Gray, 19 Wend. 202 ; Miller v. Gaston, 2 Hill, 188. 
 
 ' Miller V. Gaston, 2 Hill, 188. 
 
 » Allen V. Rightmere, 20 John. 365, 366. 
 
CHAP. X.] GUARANTY OF PROMISSOEY NOTES. 621 
 
 a Note was written, " "We, A, as principal, and B, as surety, 
 promise," &c., and the Note was signed by A, and indorsed 
 by B, the latter was held liable as joint maker.^ [So, also, 
 where a party indorsed, without date, upon a, Note, " I will 
 see the within paid," and signed it, the presumption was 
 declared to be that it was done at the date of the Note, and 
 as part of the transaction, and he was held as an original 
 promisor.^] 
 
 § 469. The principle upon which all these cases turn is 
 the same ; and that is to expound the particular transaction, 
 without reference to the form which it has assumed, in such a 
 manner as will best carry into effect the substantial intention 
 of the parties, " ut res magis valeat quam pereat," rather 
 than by a close or technical interpretation, adhering to the 
 letter, to defeat the very objects and purposes for which alone 
 the transaction must have taken place, and thus to make it 
 operate at once as a delusion and a fraud upon the ignorant 
 or the unwary.^ Nor is there anything novel in this mode 
 of interpretation, applied to this class of cases. It stands 
 upon the principle, that two instruments of the same general 
 nature, both executed at the same time, and relating to the 
 same subject-matter, are to be construed together, as forming 
 but one agreement; As he, who signs on the face, and he, 
 who indorses his name on the back, both promise to do the 
 very same thing, to wit, to pay the money at the specified 
 time, they may, without doing violence to the contract, be 
 deemed as joint makers ; and as, in point of form, each 
 promises for himself, the undertaking may be treated as 
 several, as well as joint.* In respect to the consideration, it 
 has been thought suflBcient, that the indorsement purports 
 
 ' Palmer v. Grant, 4 Conn. 389. 
 
 ° Amsbaugh v. Gearhart, 11 Penu. St. 482. And see Bickford v. Gibbs, 
 8 Cush. 154. 
 
 ^ Hall V. Newcomb, 3 Hill, 233 ; Bobinson v. Abell, 17 Ohio, 36. 
 
 ' Miller v. Gaston, 2 Hill, 188, 190; Oxford Bank v. Haynes, 8 Pick. 
 423; Bailey v. Freeman, 11 John. 221. See Bickford v. Gibbs, 8 Cush. 
 154. 
 
622 PROMISSORY NOTES. [CHAP. X. 
 
 to be " for value received," or that the consideration, if not 
 expressed, is established in proof by the contemporaneous 
 facts when the Note was made.^ 
 
 § 470. But suppose the Note and written indorsement not 
 to be both executed at the same time, but at different times 
 and upon different considerations, the question would then 
 arise, whether the indorsement was to be treated as a guar- 
 anty, or not ; and if as a guaranty; whether, to make it valid, 
 it would be necessary that a sufficient consideration therefor 
 should appear on the face of the guaranty. Upon this ques- 
 tion there would seem to be a conflict of doctrine in the 
 authorities, and in the reasoning on which it is founded.^ 
 Thus, where* on a Note, payable to B or bearer, long after its 
 date, but before it was due, and for a new purpose, A and C, 
 at the request and as surety of B, indorsed on it the follow- 
 ing words : " We guarantee the payment of the within 
 Note," and upon the faith of the guaranty, for a valuable 
 consideration, on the day of its date, it was taken by D, it 
 was held by the Supreme Court of New York, that the 
 indorsement amounted, in substance and legal effect, to a 
 Promissory Note by the indorsers, and as such it imported a 
 consideration, and was not, therefore, within the statute of 
 frauds, and was no* to be treated as a guaranty ; and that D 
 might sue thereon accordingly .^ 
 
 1 Ante, § 458. 
 
 ' Ante, § 147, and note. 
 
 ' Manrow v. Durham, 3 Hill, 584. [But see Brewster v. Silence, 4 Seld. 
 207; Weed v. Clark, 4 Sandf. 31.] Mr. Chief Justice Nelson, in deliver- 
 ing the opinion of the Court on this occasion, said: "The contract sued 
 upon is, in substance and legal effect, a Promissory Note. As such, it im- 
 ports a consideration ; and is not, therefore, within the statute of frauds. 
 All the numerous cases in which it has been held that blank indorsements 
 of Promissory Notes might be filled up, and the parties thus bound as mak- 
 ers or absolute guarantors, were taken out ofthe statute upon this principle. 
 The objection is not new, as it will be found to have been taken in nearly 
 all the cases of this class. Most of them are cited in the recent case of 
 Oakley v. Boorman, 21 Wend. 588. And see Parks v. Brinkerhoff and 
 others, 2 Hill, 663. The present case is not distinguishable in principle 
 
CHAP. X.] GUARANTY OF PROMISSORY NOTES. 623 
 
 § 471. A doctrine somewhat differently modified seems to 
 have prevailed in Massachusetts ; and it has been there held, 
 
 from Hough v. Gray, 19 Wend. 202; Ketchell v. Burns, 24 "Wend. 456 ; 
 or Luqueer v. Prosser, 1 Hill, 256. The contract is the same in form and 
 substance as in those cases, and in each of them we held it to be an original 
 undertaking, upon which the defendant might be made liable as the maker 
 of a Promissory Note. See also McLaren u. Watson's Ex'ra, 26 Wend. 
 430, per Walworth, Ch. It is true, in some of the cases cited, the question 
 did not arise under Ihe statute, as the consideration was expressed in the 
 guaranty. But whether expressed or not is wholly immaterial; for, re- 
 garded in the light of a Promissory Note, the instrument imports a con- 
 sideration as clearly as if expressed. In Hough v. Gray, however, no 
 consideration was expressed, and the instrument was, in terms, like the 
 one in question. I concede that the latter was a case in which the guar- 
 anty was indorsed at the time of the making of the Note. But that is an 
 unimportant fact, as respects the form of the instrument ; for if, in order to 
 be binding within the statute, it must express a consideration upon its face, 
 and it be not enough that the nature of the contract import one, the objec- 
 tion would be fatal without regard to the time of the execution of the 
 instrument. The only difference between the two cases is this : Where 
 the guaranty and Note are contemporaneous, you may resort to the Note 
 to sustain the consideration of the guaranty, if sought to be impeached.' 
 The Note contains aliment to support the guaranty. But when the guar- 
 anty is made at a different time, it must be sustained, if attacked for want 
 of consideration, by showing an independent one. In this case, for instance, 
 if the defendants had sought to rebut the presumption of consideration aris- 
 ing from the nature of the instrument, the plaintiff could have sustained it 
 by proof that it was made for property delivered ; as may be done in all 
 cases between payee and maker, where the consideration of a Note is 
 attacked. In the case of Miller v. Gaston, 2 Hill, 188, we entertained no 
 doubt that Miller might have sustained an action upon the guaranty against 
 Gaston alone, as upon a new Note, though the guaranty was made some 
 months after the date of the Note ; and so the case was understood by the 
 reporter, according to his marginal note of it. In the case of Oakley v. 
 Boorman, 21 Wend. 588, the indorsement was made some two months after 
 the Note, and the defendant was held liable as having intended by such 
 indorsement to guarantee the payment of the Note in that form. The in- 
 dorsement was in blank, and if a contract of indorsement had been written 
 over the name of the defendant, it would have been nothing more nor less 
 than an agreement to pay the Note, if the makers did not, on demand and 
 notice, — a conditional agreement to pay, importing a consideration. Here 
 there is an original, absolute agreement to pay the Note, importing the 
 same thing, and therefore equally out of the statute. I admit, the case of 
 Packer v. Wilson, 15 Wend. 343, militates against the doctrine here con- 
 
624 PROMISSORY NOTES. [CHAP. X. 
 
 that the party indorsing such a Note ought to be deemed, not 
 an original and absolute promisor, but a guarantor, and liable 
 accordingly, if a consideration can be established in proof, 
 although it is not stated in the guaranty.^ Therefore, where 
 a Note was payable to A or order, and after it became due 
 and remained unpaid, A indorsed on it, " I guarantee the 
 payment of the within Note in eighteen months, provided it 
 cannot be collected of the promisor before tljp,t time," it has 
 been held, in Massachusetts, to be a special guaranty, and 
 that no person except the immediate holder from the payee 
 could maintain a suit on it.^ 
 
 § 472, It is observable, that, in some of the cases before 
 cited, the import of the language used by the indorser was 
 that of guaranty. " I guarantee the payment," &c. ; and the. 
 argument deduced from this mode of expression has been, 
 
 tended for; but it may be said of that case, that, at the time it was decided, 
 a very prevalent opinion obtained with the profession, that a consideration 
 could not, since the revised statutes, be inferred or implied for the purpose 
 of sustaining an undertaking to pay the debt of another. 2 Kev. Stat. 135, 
 § 2, sub. 2. Indeed, it seems to have been even doubted by the learned 
 Chancellor, in Rogers v. Kneeland, 13 Wend. 121, whether a seal would im- 
 port a consideration within the new provision. That severe strictness of 
 construction, however, has been since repudiated in repeated ca.ses ; and if 
 the case of Packer v. Wilson is to be regarded as in conflict with the sev- 
 eral authorities upon which I have placed the decision in the. present case, 
 I think it is impossible any longer to uphold it. For, should the judgment 
 of the Court below be maintained, we must give up the whole series of 
 cases in this Court, where plaintiffs have been allowed to recover upon 
 blank indorsements of non-negotiable paper. I am not prepared for so 
 sweeping an innovation. On the contrary, I think our course of decisions 
 may be sustained upon sound and consistent principles without impugning 
 or in any way innovating upon adjudged cases.'' Mr. Justice Bronson de- 
 livered a dissenting opinion, and also reviewed the cases. See also Miller 
 V. Gaston, 2 Hill, 188 ; Ketchell v. Burns, 24 Wend. 456. But see Hunt 
 V. Brown, 5 Hill, 145; post, § 478, and note. 
 
 ' See Ulen y.. Kittredge, 7 Mass. 233; Oxford Bank v. Haynes, 8 Pick. 
 423, 426, 427 ; Tenny v. Prince, 4 Pick. 385. 
 
 ' Taylor v. Binney, 7 Mass. 479 ; Canfield v. Vaughan, 8 Martin, 697. 
 But see Upham v. Prince, 12 Ma.ss. 14 ; Allen v. Rightmere, 20 John. 365; 
 Myrick v. Hasey, 27 Maine, 9 ; ante, § 147, and note. 
 
CHAP. X.] GUARANTY OF PROMISSORY NOTES. 625 
 
 that it limits the liability of the indorser to a mere guaranty, 
 and that the Court are not at liberty to put upon the words 
 of the party, indorsing the Note, a different interpretation, 
 and to hold him liable absolutely as a maker, when he means, 
 on the face of the indorsement, to be held only as a guar- 
 antor. There is great force in tliis argument, and it is diffi- 
 cult to see upon what ground it can be overcome. It has 
 accordingly been held in Massachusetts, that, where the party 
 wrote on the back of the Note (not being negotiableff at the 
 time when it was made, " I guarantee the payment of the 
 within Note," it is to be deemed strictly a contract of guar- 
 anty ; and therefore the party so indorsing is not to be held 
 liable for the payment of the Note, unless upon due demand 
 and due notice of dishonor to him within the reasonable time 
 required on other common cases of guaranty.^ In New York 
 an opposite doctrine has been asserted (although it does not 
 seem to be finally established by the judgment of the highest 
 appellate court), upon a ground which, perhaps, is peculiar 
 to the jurisprudence of that State, and certainly is not sus- 
 tained by the ordinary interpretation of the contract of guar- 
 anty in other cases, either in England or America.^ [And ia 
 
 ' Oxford Bank v. Haynes, 8 Pick. 423. See also Leonard v. Vreden- 
 bargh, 8 John. 29. 
 
 ' Luqueer v. Prosser, 1 Hill, 256 ; S. C, 4 Hill, 420. In this last case, 
 the Note was a joint Note, payable to the payee or bearer. The indorser 
 wrote on the back of it, in fulfilment of the original agreement on which 
 the Note was given, " For value received, I guarantee the payment of the 
 within Note, and waive notice of non-payment." The suit was brought by 
 the plaintiflf jointly against the makers and the indorser, and a verdict given 
 for the plaintiff on a motion for a new trial. Several points were made, . 
 and the case was ultimately decided upon the point, that, under statute of 
 New York, the defendants were jointly suable. In the Supreme Court, 
 Mr. Justice Cowen, in delivering the opinion of the Court, said : " In Hough ■ 
 V. Gray, 19 Wend. 202, Moon made his note payable to Cameron, or bearer, 
 and Hough indorsed, ' This may certify that I guarantee the payment of 
 the within Note.' We held, that he was liable as maker, severally, to Gray, 
 who had purchased the paper of Cameron. I remarked, that the Court 
 below were clearly right in holding that Hough was liable as a joint and 
 several maker with Moon, the admitted maker ; referring t» the cases col- 
 40 
 
626 PROMISSORY NOTES. [CHAP. X. 
 
 the later cases in New York, this peculiar doctrine has 
 been entirely repudiated by the highest appellate court.^] 
 
 lected in Dean v. Hall, 17 Wend. 214, among which are the two cases I 
 now cite from the Mass. Keps. If the respective papers in those cases were, 
 in effect, joint and several Promissory Notes, it followed, that those in Hough 
 i>. Gray were such ; and that they were negotiable, like a Promissory Note. 
 These cases decide the present. Mr. Prosser's guaranty was the same, in 
 legal effect, as if he had signed with Edson & Arnold as surety. His 
 piromise^as absolute; not a mere commercial indorsement. In Allen v. 
 RightmlR, 20 John. 365, the Court said of such an undertaking, ' It is ab- 
 solute, that the maker shall pay the Note when due, or that the defendant 
 (the indorser) will himself pay it.' How is this distinguishable from a 
 direct signature as surety ? In the latter case, both promise to see the 
 money paid at the day. A man writes thus : ' I promise that $100 shall be 
 paid to A or bearer ' ; who would doubt that such a promise would be a 
 good Note ? The use of the word ' guaranty,' or ' warrant,' or ' stipulate,' or 
 ' covenant,' or other word importing an obligation, does not vary the effect. 
 Bead the obligation of a man who signs a Note with his principal, ' A B 
 surety ' ; both and each virtually stipulate in the language of the Note I have 
 supposed. Both promise that the payee ' shall receive.' In Morice v. Lee, 8 
 Mod. 362, 364, Fortescue, J. said: 'I promise that J. S., or order, shall 
 receive £100,' is a good Note. Suppose it to stand, ' shall receive £100 of 
 James Jackson ' ; or, ' I will see that £100 is paid by James Jackson ' ; all 
 this, and the like, is no more than saying, I will pay so much by the hand of 
 •another. If there be, in legal effect, an absolute promise that money shall 
 be paid, all the rest is a dispute about words. A Note is payable to A or 
 order, and he indorses it to B, thus : ' Pay the contents to B. I waive 
 presentment and notice as indorser ' ; this is a good Promissory Note. The 
 law raises an absolute promise on such an indorsement. No doubt it inures 
 as an indorsement for the purpose of transferring the principal Note ; but 
 it is, moreover, an absolute promise to pay. It is saying, ' so much is, with- 
 out condition, due from the indorser to the indorsee.' And a common Due 
 Bill is a Note. Kimball v. Huntington, 10 Wend. 675, 679, 680. The 
 whole inquiry is, does the paper import an engagement that money shall 
 ■be paid, absolutely ? If it do, no matter by what words, it is a good Note. 
 Then, on the question, whether this note be joint or several, or both, 'I 
 promise to pay,' signed by two, is joint and several. Chitty on Bills, 561 
 (Am. ed. of 1839). Each engages for himself and both. It is the same 
 thing, where one promises as principal, and the other as surety, and whether 
 -they both sign on the same side of the paper, or on different sides. Each 
 engages, and both engage, for the payment of the same sum, at the same 
 time, and to the same person ; their obligations are identical throughout ; 
 
 ' Brewster ti. Silence, 4 Seld. 207. 
 
CHAP. X.J GUABANTY OF PEOMISSORY NOTES. 627 
 
 If there be anything clear upon principle or authority, it 
 would seem to be that the contract of guaranty is not an 
 
 both papers make but one instrument. When the indorser says : ' I guar- 
 antee the payment of the- within Note,' he promises the future holder, as 
 well as the payee. The authorities say rightly, he has done the same as if 
 he had signed as surety. By reference, the guarantee becomes a part of 
 the principal Note. The guarantor becomes surety for the Note as it is 
 payable to bearer, without declaring that he will engage to any other than 
 the payee. That the guaranty in question does not come up to .the defini- 
 tion of a Promissory Note, we are referred to Oxford Bank v. Haynes, 8 
 Pick. 423. In that case, it was certainly held, that the words, ' I guarantee 
 the payment of the within Note,' signed by the guarantor, made him liable 
 as such, but not as surety ; in other words, the Court denied to such an,in- 
 dorsement the operation of a Promissory Note. But the decision was based 
 on a rule as to the mode of fixing guarantors peculiar to that State. The 
 Court admitted, that, if the engagement were to be considered absolute, it 
 was a Promissory Note ; but they considered it conditional, and, under some 
 circumstances, at least, as requiring presentment and notice, to fix the 
 guarantor ; and such is the doctrine of some other States. It is, however, 
 unknown here. It was repudiated in Allen v. Rightmere, and often since ; 
 in one case, very lately, on a review of several decisions by the Courts of 
 the United States and by the State Courts. This distinction prevailing in 
 Massachusetts, of course makes all the difierence. With our rules as to 
 charging guarantors, the learned Court in Massachusetts virtually concede, 
 that the defendant's guaranty would be considered a Note, even there. 
 Another case cited for the defendant proceeded on the same ground as that 
 of Oxford Bank v. Haynes. It is Green v. Dodge, 2 Hamm. 498. Another, 
 Cumpston V. McNair, 1 Wend. 457, went on the ground, that the guaranty 
 was not, as in this case, absolute, but was made conditional by its own ex- 
 press provisions. All three of these cases will be fijund, when their princi- 
 ple is seen, to be in favor of the views I have expressed concerning the 
 guaranty now in question. I am aware of no case the other way. Non 
 constat, in Meech v. Churchill, what was the language of the guaranty ? 
 The case is very far from deciding the present." The Court of Errors 
 affirmed the original judgment in favor of the plaintiff; but for different 
 reasons from those assigned in the Court below, Mr. Chancellor Walworth, 
 in delivering his opinion in the Court of Errors (the only opinion delivered), 
 said : " If the undertaking of Prosser cannot be considered as a Promissory 
 Note in itself, so as to render him liable as a maker ; or as an indorsement 
 of , the Note with a waiver of notice, so as to entitle the bearers of the Note 
 to recover against him as an indorser, this joint suit upon the money counts 
 cannot be sustained. But if he is liable to the bearers of the Note, either 
 as maker or indorser, and could have been declared against as such in a 
 separate suit against him, I think the statute is broad enough to entitle 
 
628 PROMISSORY NOTES. [CHAP. X. 
 
 absolute, but a conditional contract. It may be admitted, 
 that, if the other language, used in the particular instrument 
 
 them to recover in this form of action. For the legislature unquestionably- 
 intended to authorize a joint suit to be brought against all the parties who 
 were liable as drawers, indorsers, makers, and acceptors of the same paper. 
 It is not necessary, therefore, to inquire whether Arnold & Edson and 
 Frosser could,, at the common law, have been all sued, in one action, as joint 
 makers of the Note in question. In this case, if the legal liability of Frosser 
 did not appear upon the instrument served with the declaration, I think the 
 parol evidence of the agreement of the drawers to get indorsed paper for 
 the horse and wagon, for which the Note was given, could not aid the plain- 
 tiffs in the Court below. For where the party to a Note or Bill fills up the 
 instrument by which his liability'is created, at the time he signs it, as in this 
 case, it would be a violation of settled principles to allow parol evidence to 
 be given for the purpose of showing that he intended to contract^ for some- 
 thing different. And even in the case of a blank indorsement upon nego- 
 tiable paper, if it can be filled up and made to operate as a general indorse- 
 ment, I agree with Mr. Justice Bronson, in the case of Seabury v. Hunger- 
 ford, 2 Hill, 80, that parol evidence ought not to be received to show that 
 a different liability was intended to be created ; and thus deprive the in- 
 dorser of his right to notice of non-payment. Where a Note is payable to 
 bearer, so that no words of transfer are necessary to entitle a subsequent 
 holder to recover thereon in his own name, » blank indorsement is, in fact 
 and in law, neither more nor less than a conditional guaranty of payment 
 by the drawer, provided due notice of demand and non-payment is given 
 to the indorser. And parol evidence ought not to be received, in such a 
 case, to show that the parties 'intended that the indorser should be made 
 liable absolutely, without the performance of this condition precedent. But 
 in this case, the notice was expressly waived by the written guaranty in- 
 dorsed on the Note ; and, in addition to that, the plaintiffs proved a demand 
 of the makers when the Note became due, and that notice of non-payment 
 to the indorser or guarantor was actually given. No parol proof of the 
 circumstances under which the Note was given was therefore necessary to 
 entitle the holders to recover against him as such indorser or guarantor. 
 Had the indorsement guaranteed the payment of the Note to Farsons, by 
 aame, without any words of negotiability, it would probably have only 
 operated as a special indorsement, so as to make it necessary for the holder 
 of the Note to sue the same in the name of Farsons only ; and that would 
 ihave enabled the guarantor to set up any legal defence which he had to the 
 Note in the hands of the person to whom such special guaranty was made. 
 But a general guaranty, like this upon a Note payable to bearer, is, in law, 
 a general indorsement of the Note, with a waiver of the condition precedent 
 • of a notice of non-payment by the drawers. The plaintiff in error, there- 
 fore, was liable to the defendants in error as such indorser, and was properly 
 
CHAP. X.J GUARANTY OF PROMISSORY NOTES. • 629 
 
 in connection with the word " guaranty," is such as neces- 
 sarily and positively to require a different interpretation, the 
 
 sued as such in a joint suit with the makers, under the provisions of the 
 statute on the subject of joint suits. I also think that Prosser, the guaran- 
 tor, could have been sued upon this guaranty, by the bearer of the Note, 
 as upon an absolute promise to pay the amount to the bearer when it be- 
 came due ; constituting the guarantor, in effect, the maker of a Promissory 
 Note, payable to bearer, for the sum and at the time specified in the Note 
 upon which this guaranty was written. Allen v. Rightmere, 20 John. 366 ; 
 Hough V. Gray, 19 Wend. 202; Ketchell v. Burns, 24 Wend. 456. Al- 
 though this guaranty does not, in words, guarantee the payment to Parsons, 
 or bearer, as the indorsement did in the case of Ketchell v. Burns, it does 
 60 in effect. For, no person being named in the guaranty, it is an absolute 
 promise that the amount of the Note upon which it is indorsed shall be paid 
 to the payee therein named, or to the bearer, at the time in such Note 
 specified. And the words ' for value received,' which are in this guaranty, 
 remove all possible objection that it is a promise to pay the debt of Edson 
 & Arnold, and that the consideration, as well as the promise, must be in 
 writing ; if such an objection could haye been sustained where a guaranty 
 indorsed upon a Note stated no consideration for the promise, and the form 
 of the security was such that the guarantor could not be made liable as, a 
 mere indorser. I think there was no error in the judgment of the Court 
 below, and that it should, therefore, be affirmed." Some of the later cases 
 seem to adopt the general doctrine stated in the text, as to the liability of 
 the indorser as a guarantor being conditional only under the like indorse- 
 ments. See Loveland v. Shepard, 2 Hill, 139 ; Seabury v. Hungerford, 2 
 Hill, 80. The case of Allen v. Rightmere, 20 John. 365, is perhaps dis- 
 tinguishable. The note was there payable to the guarantor himself, or 
 order, and he indorsed on the Note, " For value received, I sell, assign, and 
 guarantee the payment of the within Note to A or bearer," might be 
 deemed to import, as the Court held them Jo be, not a conditional under 
 taking, but an absolute agreement, that the maker would pay the Note 
 when due, or that the defendant, being the payee and indorser, would him- 
 self pay it. See Douglass v. Reynolds, 7 Peters, 113, 127. Hough v. Gray, 
 19 Wend. 202, seems to have proceeded upon the same ground as Allen v. 
 Rightmere, 20 John. 365. The words were, " I guarantee the payment of 
 the within Note " ; and they were construed to import an absolute guaranty, 
 the Note being payable to A or bearer. In Lamourieux v. Hewit, 5 Wend. 
 307, the Court held, that the words, "I warrant the collection of the within 
 Note, for value received," imported a conditional guaranty or agreement 
 only that the defendant would pay the Note, if not collected of the maker. 
 In Ketchell «. Burns, 24 Wend. 456, the Note was dated on the 12th of 
 September, 1837, and payable to B, or bearer, by the first of July then 
 next ; and on the back, the indorser, under the date of 25th of September, 
 
630 PROMISSORY NOTES. [CHAP. X. 
 
 Court are at liberty to reject the interpretation of the word 
 " guaranty " in its strict sense, and to expand it so as to 
 meet and give consistency to the other language. But if the 
 whole instrument, can be so construed as to give full meaning 
 to the word " guaranty," in its strict sense, consistently with 
 the context, then it would seem dijG&cult to assign any suffi- 
 cient reason why the ordinary meaning of the word " guar- 
 anty " should be deserted and another forced upon it. The 
 doctrine asserted in New York does not attempt to deny the 
 rules of law ordinarily applicable to contracts of guaranty ; 
 
 1837, wrote tlie following indorsement: "For and in consideration of 
 $31.50, received of C, I hereby guarantee the payment and collection of 
 the within Note to him or bearer " ; and the Court held, that these words 
 imported a negotiable promise absolutely to pay the bearer. In Hunt v. 
 Brown, 5 Hill, 145, the Note was negotiable, and was indorsed by the 
 payee ; and the defendant wrote on the back, " I guarantee the collection 
 of the within Note " ; and the Court held it to be a guaranty, or collateral 
 undertaking, and not an absolute promise to pay the amount of the Note, 
 and, therefore, void for want of a consideration expressed on the face of 
 the Note. The Court said, that it would have been otherwise, and the 
 agreement have been an absolute Promissory Note, if it had been, " I guar- 
 antee the payment of the Note," instead of the collection of the Note. We 
 see, from these citations, that the interpretation of the particular language 
 of the indorsements has often turned upon very nice distinctions ; and it is 
 not too much to say, that these distinctions are hot always very satisfactory. 
 [But in a later case, the Supreme Court of New York held these words on 
 the back of a Promissory Note, viz. : " We, the undersigned, guarantee the 
 payment of the within," to be a guaranty, and invalid, because the consid- 
 eration on which it was made did not appear. Whittlesey, J., in giving 
 the opinion, remarked as follows : " I cannot satisfactorily acquit myself of 
 the responsibility cast upon me to respect and obey the deliberate expres- 
 sion of the legislative will without declaring that in my judgment the 
 present case is one covered precisely by the statute. I am constrained, 
 therefore, to say, notwithstanding the decisions which have introduced a 
 new doctrine in cases precisely like the present, and notwithstanding the 
 conflicting decisions, in cases very nearly like this in their facts, — wholly ' 
 like it in principle, — that the obligation upon which this action is brought 
 is an undertaking to answer for the debt of another. In such cases, the 
 statute requires the consideration to be expressed in writing, signed by the 
 party. The consideration not being so expressed in the writing, in this case 
 the obligation is void." Hall v. Farmer, 5 Denio, 484 j 2 Comst. 553.] 
 
CHAP. X.] GUARANTY OF PROMISSORY NOTES. 631 
 
 but it does, in effect, deny to the word " guaranty " its 
 true import in the cases alluded to, although such an inter- 
 pretation is not indispensable to give the instrument a rea- 
 sonable operation. 
 
 § 473. In all the foregoing cases, there was a written 
 memorandum indorsed by the party upon the back of the 
 Note, either at the time when it was made, or afterwards ; 
 and, of course, the only question there was, what was the 
 true construction of the written memorandum-, as to the par- 
 ties in interest. But cases have occurred of a very different 
 nature, where the party sought to be charged has indorsed 
 his name in blank thereon. These cases have been either, 
 (1.) where the Note was not negotiable, or (2.) where it 
 was negotiable. In the former class of cases, it has been 
 held, that, if the blank indorsement was made at the same 
 time as the Note itself, the indorser ought to be held liable, 
 as an original promisor or maker of the Note, and that the 
 payee is at liberty to write over the blank signature, " For 
 value received, I undertake to pay the money within men- 
 tioned to B " (the payee).^ 
 
 ' Ante, §§ 58, 59; Josselyn v. Ames, 3 Mass. 274; Hemok v. Carraun, 
 12 John. 159; Nelson v. Dubois', 13 John. 175 ; Moies v. Bird, 11 Mass. 
 436, 440; Campbell v. Butler, 14 John. 349 ; Dean v. Hall, 17 Wend. 214, 
 217-220; Oxford Bank v. Haynes, 8 Pick. 423, 426, 427; Cooley v. Law- 
 rence, 4 Mart. 639; Baker v. Briggs, 8 Pick. 122; Leonard v. Vreden- 
 burgh, 8 John. 29; Labron v. Woram, 1 Hill, 91; Hough v. Gray, 19 
 "Wend. 202 ; Hall v. Newcomb, 3 Hill, 233 ; Sylvester y.Dowher, 20 Verm. 
 355 ; Griswold u. Slocum, 10 Barb. 402 ; Adams v. Hardy, 32 Maine, 339 ; 
 Carroll v. Weld, 13 111. 682; Bryant v. Eastman, 7 Cash. 111. In Moies v. 
 Bird, 11 Mass. 436, 440, Mr. Justic# Parker, in delivering the opinion of 
 the Coiirt, said : " It is manifest that the defendant intended to make him- 
 self liable, in some form ; at least, such is the intent legally to be presumed, 
 even against his declaration, at the time of signing. Had the Note been 
 made payable to him, and negotiable in its form, the plaintiff would have 
 been restricted to such an engagement, written over the signature, as 
 would conform to the nature of the instrument. In such case the defend- 
 ant would have been held as indorser, and in no other form ; for such must 
 be presumed to have been the intent of the parties to the instrument. But 
 this Note was not made payable to the defendant, and therefore was not 
 
PROMISSORY NOTES. [CHAP. X. 
 
 § 474. But if the blank indorsement has been at a subse- 
 quent period, and upon a transaction altogetlier distinct from 
 
 negotiable by his indorsement. What, then, was the effect of his signa- 
 ture ? It was, to make him absolutely liable to pay the contents of the 
 Note. If he had been asked, after the Note became due, to guarantee its 
 payment, and such had been the understanding, when he gave his name, it 
 might have been necessary to declare against him, as guarantor, instead of 
 charging him, as original promisor ; but no such agreement is proved. He 
 puts his name upon a Note, payable to another, in consequence of a pur- 
 chase, made by his brother, in a day or two afler the bargain was made, 
 knowing that he could not be considered in the light of a common indorser, 
 and that he was entitled to none of the privileges of that character. He 
 leaves it to the holder of the Note to write anything over his name which 
 might be considered not to be inconsistent with the nature of the transac- 
 tion. The holder chooses to consider him as a surety, binding himself 
 originally with the principal ; and we think he has a right so to do. If he 
 was a surety, then he may be sued as original promisor." In Oxford Bank 
 V. Haynes, 8 Pick. 423, 426, 427, the same learned judge, in delivering the 
 opinion of the Court, said : " It is somewhat extraordinar)', that the nature 
 of this contract, and the extent of the liability it creates, are not very 
 clearly settled, in the books. It has been sometimes held to be an absolute, 
 sometimes a conditional, obligation. Sometimes a guarantee has been 
 deemed a surety, and at others, not more than an indorsee. And this, per- 
 haps, has arisen from the different forms in which the contract has been 
 made. In several cases, where the party put his name on the back of the 
 Note, without any words written over it, at the time, he not being the 
 payee of the Note, he has been charged as an original promisor, being 
 considered in the light of a surety, and he has been declared against as 
 such ; but in these cases his signature was given at the time of making the 
 Note, or in so short a time afterwards, and under such circumstances, as to 
 have relation to the making of the contract originally. The case of Jos- 
 selyn v. Ames is of the first class; and that of Moies v. Bird, of the second. 
 In other cases, the signature of a third party, not named in the Note, has 
 been given, a long time after the making of the Note, and without 
 any circumstances showing that this third party had any concern in the 
 original contract. Such was the case of Ulen v. Kittredge, 7 Mass. 233. 
 In the first class of cases, the holder of the Note has been allowed to treat 
 the person, whose name is on the back, as a surety or original promisor, 
 without any proof of consideration, other than as against the person who 
 signed his name under the Note, or of any actual promise on his part to 
 pay, except what is derived from his signature to the Note. In the second 
 class of cases, proof has been required of the promise or engagement to 
 become liable, and he is to be charged in no other form than is consistent 
 with that engagement ; and, it being a collateral engagement to pay the 
 
CHAP. X.] GUABANTY OF PROMISSORY NOTES. 633 
 
 the original formation of the Note, there, it should seem that 
 the indorser is not to be treated as an original promisor, or 
 maker, but, at most, as a guarantor.^ In this latter view, 
 very different questions have arisen ; first, whether it is not 
 necessary that a distinct and valid consideration should be 
 shown to support the supposed promise ; and secondly, 
 whether, if the consideration and promise are sufficiently 
 established by parol proofs, the blank indorsement can be 
 filled up in conformity with the proofs, and will not be in 
 violation of the statute of frauds.^ Both of these questions 
 have, in America, been resolved in the affirmative.^ 
 
 debt of another, there must be proof of a consideration for the promise. 
 The distinction is clearly stated, in the case of Hunt;;. Adams, 5 Mass. 361. 
 But the cases above cited, where the party signing on the back of the Note 
 has been held to be an original promisor, are where the signature is in blank, 
 and not where a special undertaking is written over it. In such cases, the 
 party chargeable, the Note not being negotiable, gives authority to the 
 payee or holder to write over his signature such words as will bind him to 
 the payment, not as indorser, for he cannot be such, technically, to aj^Note 
 not negotiable, but as promisor, surety, or guarantee, at his election. No 
 such authority exists, where the tenor and form of the undertaking are 
 already drawn out, before the signature of the party." 
 
 '■ See Mecorney v. Stanley, 8 Cush. 87 ; Benthall v. Judkins, 13 Met. 
 265 ; Union Bank v. Willis, 8 Met. 504. In this last case the cases on this 
 subject in Massachusetts are critically and carefully reviewed. 
 
 » Ulen V. Kiltredge, 7 Mass. 233 ; Oxford Bank v. Haynes, 8 Pick. 423, 
 427-430; ante, § 472, and note; Dean v. Hall, 17 Wend. 214; Parks u. 
 Brinkerhoff, 2 Hill, 663 ; Tenney v. Prince, 4 Pick. 385. But see ante, 
 § 459, and note ; Oakley v. Johnston, 21 Wend. 589 ; Beckwith v. Angell, 
 6 Conn. 315 ; Sandford v. Norton, 14 Verm. 228 ; Fear v. Diinlap, 1 Greene 
 (lo.), 331. In Tenney v. Prince, 4 Pick. 385, the subject was much 
 discussed. Mr. Chief Justice Parker, on that occasion, in delivering the 
 opinion of the Court (the case being one of a negotiable Note, indorsed 
 in blank), said: " By the facts agreed, it appears that the defendant put 
 his name on the back of the Note about nine months after its date, and 
 three months before it became due. There is no evidence of the intent 
 and purpose of this act of the defendant, nor of any consideration which 
 moved him to it. The writing made by the plaintiff, over the signature, 
 would make it an original promise, of the same date with the Note, to pay 
 the contents of the Note, according to its tenor. We do not think there 
 
 " Ibid. 
 
634 PROMISSORY NOTES. [CHAP. X. 
 
 § 475. There do not, indeed, seem to be any important 
 diversities in the American authorities in the class of cases 
 
 was any authority in the plaintiflF to make this use of the signature, because 
 it is inconsistent with the circumstances under which the signature was 
 given. It is impossible to infer an original promise to pay this Note, coeval 
 with its date, from a signature put upon it nine months after. The case of Ulen 
 V. Kittredge is no authority for it ; for in that case Eittredge was charged as 
 guarantor, and there was a consideration in forbearance towards the promisor, 
 and the Court inferred from the act and declarations of Kittredge an au- 
 thority to make him thus liable, the Note being due, when the indorsement 
 was made. Nor does the case of Moies v. Bird support it ; for, though the 
 signing of Bird was two or three days after the Note was made, there were 
 facts from which an agreement to be responsible from the beginning was 
 justly inferred. These two cases approached nearer to the one before us 
 than any which have been cited from our books ; but they do not reach the 
 present case, for this is a naked indorsement, without any accompanying 
 facts or declarations tending to explain the act. The principle by which 
 all our decisions have been regulated, from the case of Josselyn v. Ames 
 downwards, is, that where the indorsement is made at the time of making 
 the Note, the person indorsing the Note is to be treated as an original 
 promisor, and this because he is supposed to participate in the considera- 
 tion ; that is, the payee is supposed to have parted with something valuable, 
 upon the strength of the liability of the party who puts his name on the 
 Note ; and, as such party cannot be answerable as an indorser, he shall be 
 answerable as an original promisor. This is well understood to be the law 
 of this Commonwealth, and we do not feel disposed to change it. No au- 
 thority has been produced from this or any other state or country, which 
 would justify us in extending the liability of these anomalous indorsers. 
 We cannot yield to the suggestion of counsel, that the blank signature gives 
 authority, in this case, to refer the effect of the signature to the date of the 
 Note, because it is proved that that signature was given nine months after- 
 wards, and we have no facts to justify such a reference. But this signa- 
 ture is not without effect ; it was intended as security to the plaintiff, and 
 it ought to avail as intended. The only form of engagement which is con- 
 sistent with the time and circumstances under which the signature was 
 made is a guaranty of the payment of the Note, when it should become 
 due, and that is a contract which may be enforced if it was made on legal 
 consideration, and not otherwise. If within the statute of frauds, it is suffi- 
 ciently in writing, with the engagement to that effect which the plaintiff is 
 authorized to place over the signature, to be sustained. But, whether within 
 the statute or not, it cannot avail the plaintiff, without proof of considera- 
 tion, because it is a collateral, not an original, undertaking. We think the 
 signature conveys the authority to superscribe this engagement, as was 
 decided in 1801, in a case reported in a note to Precedents of Declarations 
 
CHAP. X.] GUARANTY OF PROMISSORY NOTES. 635 
 
 which we have just been considering, that is to say, of Notes 
 nqt negotiable. But in the other class of cases, that of Notes 
 negotiable and indorsed in blank, there hav0 been some dis- 
 crepancies of judicial opinion. 
 
 § 476. In Massachusetts it has been held, that, if a person 
 puts his name in blank upon the back of a Note, payable to a 
 third person or order, at the time when it is made, for the 
 purpose of giving it credit and currency, the person so indors- 
 ing may be treated as an original promisor or joint maker of 
 the Note, and he is to be bound to the absolute payment 
 thereof (which, in the absence of C&untervailing proof, will 
 be presumed^). [And the later cases in Massachusetts de- 
 clare this to be a conclusive presumption, and not to be con- 
 trolled by parol proof that such indorser was to be only a 
 surety or guarantor.*] [In Maine, New Hampshire, Vermont, 
 
 (2d edit.), 150, afterwards in Josselyn v. Ames, Ulen v. Kittredge, and 
 many other subsequent cases. The action, in its present form, therefore, 
 cannot be maintained \ but if it is supposed that a consideration can be 
 proved, the plaintiff has leave to amend his declaration and his indorse- 
 ment over the signature, and a new trial is granted." In Beckwith v. An- 
 gell, 6 Conn. 315, the authorities were cited at large, and fiilly considered. 
 See ante, §§ 58, 59. 
 
 ' Baker v. Briggs, 8 Pick. 122 ; Tenney v. Prince, 4 Pick. 385 ; Bryant 
 V. Eastman, 7 Cjash. Ill ; Samson v. Thornton, 3 Met. 275 ; Union Bank 
 <;. Willis, 8 Met. 504 ; Austin v. Boyd, 24 Pick. 64. In Baker v. Briggs, 
 8 Pick,122, 130, Mr. Chief Justice Parker, in delivering the opinion of the 
 Court, said : " The Note was made by Ryan to the plaintiff, and the name 
 of the defendant written on the back. Supposing this was done when the 
 Note was made (and there was no evidence to the contrary), according to 
 several decisions, it was right to declare against him, as promisor ; but still 
 he stood in relation to Ryan as a surety, and was entitled to any advan- 
 tages belonging to that character, as he would if his name had been put on 
 the face of the Note, when he might prove that he was only surety ; and if 
 the creditor had done any act which could, in law, discharge a surety, he 
 might prove that in his defence." In Oxford Bank v. Haynes, 8 Pick. 423, 
 426, 427, the same learned judge, in commenting upon the cases, seems to 
 have limited the doctrine to N(^s not negotiable. Ante, § 473, note. 
 
 ' [Essex Company v. EdmanSs, 12 Gray, 273. This was an action upon 
 a Note made by the Lawrence Carpet Company, which was indorsed 
 by Rayner, and it is a question in what character he was upon the 
 
636 PEOMISSOEY NOTES. [CHAP. X. 
 
 and some other States, the same doctrine has prevailed.^] 
 [And so if the indorsement be made after the Note, but in 
 
 Note ; whether as joint promtsor or as indorser, and whether parol testi- 
 mony could be introduced to show that character^ and' the following deci- 
 sion was given : 1. That where a person, not the payee, indorses a Note 
 before its delivery to the payee, he thereby becomes liable as an original 
 promisor. That it is a conclusive presumption of law, that a party indorsing 
 a Note under these circumstances intends to become liable as a joint prom- 
 isor, and therefore, 2. That parol. evidence is not competent to vary that 
 liability, and to show that the real agreement was that he was only to be 
 liable as an indorser. 3. That such liability was not varied in the present 
 case by the fact that in the condition of the mortgage given by the princi- 
 pal promisor to the payee, to secure the payment of this Note, the Note is 
 described as signed by the Lawrence Carpet Company and indorsed by 
 defendant's testator, — because this was merely a recital of the Note, and 
 as such was literally correct.] And, on the other hand, where a person be- 
 fore delivery wrote his name on the back of a Note payable to the maker's 
 own order, and it was afterwards indorsed by the maker, he could not be 
 held as an original promisor, but only as an indorser, and parol evidence 
 was incoinpetent to vary his contract as it appeared upon the Note. Bige- 
 low V. Colton, 13 Gray, 309; Lake u. Stetson, lb. 310. And so when one 
 writes his name upon the back of a Note, before delivery, payable to a 
 third person, and the payee afterwards writes his name above such sig- 
 nature and delivers the Note, the signer upon the back of the Note can 
 only be held as a second indorser, and parol evidence is incompetent to 
 show that he was a joint maker and original promisor. Clapp v. Rice, 13 
 Gray, 403 and notes, 40S. In the previous case of Pearson v. Stoddard, 9 
 Gray, 199, it was held that parol evidence was admissible to show that a per- 
 son not the payee wrote his name in blank on the back of a Note, before 
 delivery of the Note, and thereby became an original promisor, although the 
 payee afterwards wrote his name above such signature, and negotiated the 
 Note. This case seems somewhat in conflict with the cases cited from 
 the 13 th Gray, but perhaps they may be reconciled by the fact that in 
 Pearson v. Stoddard the Note was a valid Note in the hands of the payee, 
 and the signer upon the back was liable to the payee as an original prom- 
 isor, previous to the indorsement and transfer of the Note by him, while in 
 the case of Clapp v. Rice, and the other cases in the 13th Gray, the Note 
 first became a valid Note, binding upon the signers on the back, when it 
 was indorsed and negotiated by the payee. Wright v. Morse, 9 Gray, 337. 
 ' As stated in the text, this doctrine is peculiar to some of the States. 
 The following cases are upon the point, andphis note contains some of the 
 latest discussions of it. Peck v. Gilman, 7 Min. 446 ; Baker v. Black, 30 
 Mo. 225 f Seymour v. Leyman, 10 Ohio St. 283; Rey v. Simpson, 1 Min. 
 380 ; Heath v. Van Cott, 9 Wis. 51 6 ; Peirse v. Irvine, 1 Min. 369 ; Wins- 
 
CHAP. X.] GUARANTY OP PROMISSORY NOTES. 687 
 
 pursuance of an dgreement made before, the same rule pre- 
 vails.^] In New York, the earlier cases inclined to the same 
 
 low V. Boyden, 1 Min. 383 ; McComb v. Thompson, 2 Min. 139 ; Marien- 
 thal V. Taylor, 2 Min. 147 ; Shenk v. Robeson, 2 Grant's Cases, 372 ; Smith 
 V. Kessler, 44 Penn. St. 142; Irish v. Cutler, 31 Maine, 536; Adams w. 
 Hardy, 32 Maine, 339 ; Leonard v. Welds, 36 Maine, 265.; Childs v. Wy- 
 man, 44 Maine, 433 ; Brett v. Marston, 45 Maine, 401 ; Martin v. Boyd, 11 
 N. H. 385 ; Flint v. Day, 9 Verm. 345 ; Nash v. Skinner, 12 Verm. 219 ; 
 Sylvester v. Downer, 20 Verm. 355. 
 
 Substantially the same doctrine has been held in Minnesota, Peck v. 
 Gilman, 7 Min. 446 ; Key v. Simpson, 1 Min. 380 ; Peirse u. Irvine, lb. 369 ; 
 Winslow V. Boyden, lb. 383 ; McComb v. Thompson, 2 Min. 139 ; Marien- 
 thal «. Taylor, lb. 147. And in Missouri. Powell v. Thomas, 7 Mo. 440 ; 
 Lewis V. Harvey, 18 lb. 74 ; Perry v. Barrett, lb. 140 ; Schneider v. Schiff- 
 man, 20 Mo. 571 ; Baker v. Black, 30 Mo. 225. And in South Carolina. 
 Stoney v. Beaubien, 2 McMuUan, 313 ; Baker v. Scott, 5 Rich. 305; Car- 
 penters. Oakes, 10 Rich. 17; McCelneryu. Noble, 12 Rich. 167; McCreary 
 V. Bi*d, lb. 554. And in Georgia. Quin v. Sterne, 26 Geo. 223. And in 
 Rhode Island. Perkins v. Barstow, 6 R. I. 505. 
 
 The above case of Rey v. Simpson, cited from 1 Min., was carried by ap- 
 peal to the Supreme Court of the United States at Washington, 22 How. 
 (U. S.) 341. The case was elaborately discussed, and the following con- 
 clusions are stated by the Court : " When a Promissory Note, made paya- 
 ble to a particular person or ordter, as in this case, is first indorsed by a 
 third person, such third person is held to be an original promisor, guarantor, 
 or indorser, according to the nature of the transaction, and the understanding 
 of the parties at the time the transaction took place. If he put his name 
 on the back of the Note at the time it was made as surety, and for his 
 accommodation, to give him credit with the payee, or if he participated in 
 the consideration for which the Note was given, he must be considered as a 
 joint maker of the Note. On the' other hand, if his indorsement was subse- 
 quent to the making of the Note, and he put his name there at the request 
 of the maker, pursuant to a contract with the payee for farther indulgence 
 or forbearance, he can only be held as guarantor. But if the Note was 
 intended for discount, and he put his name on- the back of it with the un- 
 derstanding of all the parties that his indorsement would be inoperative 
 until it was indorsed by the payee, he would then be liable only as a sec- 
 ond indorser in the commercial sense, and as such would clearly be entitled 
 to the privileges which belong to such indorsers. 
 
 " Decided cases are referred to, which seemingly deny that such parol 
 proof of the attending circumstances of the transaction is admissible in evi- 
 
 ' Leonard v. Wilkes, 36 Maine, 265; Moies v. Bird, 11 Mass. 436; 
 Hawkes v. Phillips, 7 Gray, 274. 
 
638 PEOMISSOEY NOTES. [CHAP. X. 
 
 opinion.i But in the later cases a different doctrine has been 
 maintained, and a distinction has been taken between cases 
 
 dence ; but the weight of authority is greatly the other way, as is abun- 
 dantly shown by the cases cited on the other side. Whenever a written 
 contract is presented for construction, and its terms are ambiguous or indefi- 
 nite, it is always allowable to weigh its language in connection with the 
 surrounding circumstances and the subjects-matter ; and we see no reason, as 
 a question of principle, why any diflFerent rule should be adopted in a case 
 like the present. Such evidence has always been received in the Courts 
 of Massachusetts, as appears from numerous decisions, and the same rule 
 applies in most of the other States at the present time. 1 Amer. Lea. Cas. 
 (4th edit.) 322. Repeated decisions to the same effect have been made 
 in the Courts of New York, and until a recent period it appears to have 
 been the settled doctrine in the Courts of that State. Recent decisions, it 
 must be admitted, wear a different aspect ; but they have not had the effect 
 to produce a corresponding change in other States, and, in our view, deny 
 the admissibility of parol evidence in cases where it clearly ought to be 
 received. Hawkes v. Phillips, 7 Gray, 284. Applying these principles to 
 the present case, it is obvious that the contract of the two defendants, whose 
 firm name is upon the back of the Kote, was an original undertaking, run- 
 ning clear of the statute of frauds." 
 
 In Illinois such a signer on the back is regarded as a guarantor. Web- 
 ster V. Cobb, 17 111. 459; Bogue v. Meliek, 25 111. 91 ; Klein v. Currier, 14 
 111. 237; Carroll v. Weld, 13 111. 682; Camden v. McKay, 3 Scam. 437; 
 Cushman v. Dement, lb. 497 ; Smith v. Finch, 2 Scam. 321. So in Texas, 
 Carr v. Rowland, 14 Texas, 275 ; Cook v. Southwick, 9 lb. 615. So in Vir- 
 ginia- Watson V. Hurt, 6 Gratt. 633. So, in Connecticut, it is held sub- 
 stantially to be a guaranty. Clark v. Merriam, 25 Conn. 576 ; Beckwith v. 
 Angell, 6 Conn. 315; Perkins v. Catlin, 11 Conn. 213; Ransom v. Sher- 
 wood, 26 Conn. 437. In Pennsylvania he is held to be a second indorser. 
 Schallenberger v. Nehf, 28 Penn. St. 189 ; Smith v. Kessler, 44 Penn. St. 
 142 ; Guilder v. Linderman, 34 Penn. St. 58. In Wisconsin, as indorse/ 
 only. Heath v. "Van Cott, 9 Wis. 516 ; Davis v. Barron, 13 Wis. 227. In 
 Ohio he is held to be an original promisor, indorser, or guarantor according 
 to the circumstances, agreements, and intentions of the parties. Bright v. 
 Carpenter, 9 Ohio, 139; Lathrop v. Griffith, 13 Ohio, 228; Seymour v. 
 Leyman, 10 Ohio St. 283; Robinson v. Abell, 17 Ohio, 36; Greenough 
 V. Smead, 3 Ohio St. 415 ; Seymour v. McKay, 15 Ohio, 615. In Indi- 
 ana he is regarded as an indorser. Wells v. Jackson, 6 Blackf 40 ; Sny- 
 der V. Oatman, 16 Ind. 265 ; Cecil v. Mix, 6 Ind. 478 ; Vore v. Hurst, 13 
 
 ' Herrick v. Carman, 12 John. 159 ; Nelson v. Dubois, 13 John. 175; 
 Campbell v. Butler, 14 John. 349. And see Partridge v. CoVaj., 19 Barb. 
 248. 
 
CHAP. X.] GUARANTY OF PR(3MISS0EY NOTES. 639 
 
 where the Note is negotiable, and cases where it is not nego- 
 tiable ; and it has been broadly laid down, that, in the former 
 cases, the party so indorsing the Note in blank, when it is 
 made, if it is originally made payable to a third person or 
 order, or to a third person or bearer, it is not ordinarily to 
 be treated as an original promisor of maker, nor as a guaran- 
 tor, but simply in the character of an indorser upon the 
 Note.^ If the Note is payable to A or order, the party so 
 indorsing can ordinarily be treated only as a second indorser,^ 
 
 Ind. 551 ; but parol evidence is admissible to make him a joint maker. Sill 
 V. Leslie, 16 Ind. 236. So in Tennessee. Comparree v. Brockway, 11 
 Humph. 355 ; Clouston v. Barbiere, 4 Sneed, 336. So in Iowa. Fear v. 
 Dunlap, 1 Green, 331. So in Mississippi. Jennings v. Thomas, 13 Sm, & 
 Mar. 617, and 5 Sm. & Mar. 627. In California he is regarded as a guar- 
 antor or indorser. Riggs v. Waldo, 2 CaJ. 485 ; Pierce v. Kennedy, 5 Cal. 
 138. In Kentucky he is regarded only as an indorser or guarantor. 2 Met. 
 Ky. 215. In Louisiana he is regarded as a surety only. McGuire «. Bos- 
 worth, 1 La. An. 248 ; Penny v. Parham, 1 La. An. 274. 
 
 The doctrine as'held in New York is stated in the text and in the notes 
 to this section. The late case of Moore v. Cross, 19 N. Y. 22/, has added 
 another view of the law. In that case A made a Note payable to B, and 
 indorsed by C, according to the agreement of the parties to a sale, before 
 the delivery of the Note. The Note was protested, and due notice was given 
 to all the signers upon the back as indorsers. B took up the Note, and 
 brought his suit against C as indorser ; the Court held that if B had in- 
 dorsed the Note without recourse, then the holder might have recovered of 
 C as of an indorser, and as the indorsement by B without recourse was a 
 mere formality, that they would consider that as done which might have 
 been so easily and so rightfully done at the trial, and B was considered to 
 stand in the same position as if he had really indorsed the Note to some 
 other person without recourse. This seems to add another complication to 
 the confusion already existing in the decisions of the various States. The 
 doctrine of Massachusetts has been frequently regretted as an anomaly in 
 the law, but it has been adopted by a large number of States. The Court 
 of last resort in Rey v. Simpson, 22 How. (U. S.) 341, has approved and 
 adopted the doctrine ; and as it is there explained, stated, and limited, it 
 would seem to be the simplest manner of carryingout the intention of the 
 parties in this peculiar kind and form of contract. 
 
 ' Seabury v. Hungerford, 2 Hill, 80 ; Hough a. Gray, 19 Wend. 202 ; 
 Hall V. Newcomb, 3 Hill, 233 ; S. C, 7 lb. 416-426, note ; Spies v. Gil- 
 more, 1 Comst. 321 ; Cottrell v. Conklin, 4 Duer, 45. 
 
 ' Ellis V. Brown, 6 Barb. 282. See also Crozer v. Chambers, Spencer, 
 
640 PROMISSORY NOTES. [CHAP. X. 
 
 [or, in some States, as a guarantor ; '] if the Note is payable 
 to order or to bearer, he may, under certain circumstances, 
 be treated as the first indorser, and liable, as such, to the 
 holder,^ 
 
 N. J. 256 ; Fear». Dunlap, 1 Greene, (lo.), 331 ; Jennings r. Thomas, 13 S. 
 &M. 617. 
 
 ' Greenough v. Smead, 3 Ohio St. 418 ; Webster v. Cobb, 11 lU. 459. 
 
 ' Dean v. Hall, 17 Wend. 214; Seabury v. Hungerford, 2 Hill, 80; Hall 
 V. Newcomb, 3 Hill, 233 ; Oakley v. Johnston, 21 Wehd. 588 ; Labron v. 
 Woram, 1 Hill, 91 ; Tillman v. Wheeler, 17 John. 326. The subject was 
 much discussed in Dean v. Hall, 17 Wend. 214, where the Court do not 
 seem to have been prepared finally to abandon the doctrine of the former 
 cases. There, the Note was payable to A or bearer, and indorsed in blank 
 by the defendant. Mr. Justice Cowen, on that occasion, elaborately dis- 
 cussed all the cases ; and, afler citing them, said : " Such are the cases 
 relied upon to sustain this declaration. I think the utmost they establish is^ 
 that where the defendant is privy to the consideration, and indorses a Note 
 not negotiable, or, at most, one payable to order, or to the plaintiff or 
 bearer, and not negotiated, the declaration may then charge the defendant 
 directly as the maker. This is the extent of Herrick v. Carman, and Nel- 
 son V. Dubois, which go the farthest. None of the cases can mean, that, 
 whatever may be the consideration, if the defendant stand in the ordinary 
 relation of a commercial indorser, he is not to be treated as such. The 
 distinction is further illustrated by TJlen v. Kittredge, 7 Mass. 233 ; Moies 
 V. Bird, 11 Mass. 436, and Campbell v. Butler, 14 Johns. 349. These cases 
 were all identically the same in their circumstances. The indorsers were 
 charged on blank indorsements upon Notes payable to the plaintiff or or- 
 der, but expressly to raise a credit at the time in favor of the maker. The 
 only peculiarity lies in the strong intendment from very weak evidence, 
 which the Court made in Moies v. Bird, to connect the defendant with the 
 original consideration. In all, the plaintiff was allowed with his own hand 
 to write a full-length Note over the name. The principle of all these 
 cases is fully explained by the late one of Beckwith v. Angell, 6 Conn. 314, 
 which pushed the former authorities to a greater length than they would 
 appear originally to warrant. On a Note similar to those in the last-cited 
 cases, 7 and 11 Mass. and 14 Johns., the defendant indorsed his name in 
 blank, long after the Note had been executed, as a mere surety, without 
 the least privity with the original consideration. The plaintiff was allowed 
 to write over it thus : ' In consideration of further forbearance, I guarantee 
 the payment of the within Note.' This was, in itself, a Promissory Note, 
 and so agreed to be within Allen v. Kightmere, 20 Johns. 365 ; and that 
 therefore no demand or notice was necessary. Peters, J., who delivered 
 the opinion of the Court, said : ' The undertaking of an indorser is always 
 
CHAP. X.] GUARANtY OF PROMISSOEY NOTES. 641 
 
 § 477. The doctrine in Massachusetts, Connecticut, and 
 Vermont, has gone one step farther; and it has been held, 
 
 <5ollateral, unless made otherwise by special agreement. But the defendant 
 was not an indorser, because he was neither promisee nor indorsee. His 
 contract was therefore necessarily special, and whatever the parties chose 
 to make it. Had it remained blank, it must have been considered prima 
 facie a guaranty, dv nothing. This depended on the inducement and inten- 
 tion with which the defendant wrote his name.' Bristol, J. said : ' By the 
 common law, the holder of a Note has authority to write over the indorse- 
 ment the real contract between the parties.' Hosmer, C. J. dissented ; but 
 he did not deny the right to fill up the blank according to the intent. He 
 only insisted that, conformably to' a series of adjudications in Connecticut, 
 the intent to be inferred from such a position of the indorser's name was 
 merely to make himself liable on the failure of the principal, after the 
 holder had exercised due diligence in attempting the collection. The dif- 
 ference lay only in the mode of filling up. Peters, J. had abundantly 
 proved by authority the doctrine, so familiar to the mercantile community, 
 that Notes, Bills, or Indorsements may thus be written, where the intent is 
 apparent; indeed, that the holder may put the blank paper ia any form, 
 which shall accord with the intent of the names, either as makers, drawers, 
 payees, or indorsers. We arrive, through the last case, to the plain and 
 simple foundation into which the power of the bona fide holder is resolvable^ 
 it is the intent of the parties, not written out in full, but evinced, by the 
 character of the slip on which the name appears, connected with the course 
 of local adjudication, but subject to be modified by oral evidence. The 
 main difficulty in maintaining such contracts arises out of the statute of 
 frauds. In Kngland, an indorsement, such as we have been considering, 
 would probably be viewed as prima foicie evidence of an intent to be made 
 chargeable as second indorser, although it stands the fii'st in chronological 
 order ; Bishop v. Hay ward, 4 Term, 4 70 ; and see Herrick v. Calmain, 1 2 John. 
 161, before cited ; and, although entirely without words of negotiability, it 
 seems to be well settled, that, if the payee indorse and deliver over a Note 
 or Bill, he is entitled to all the privileges of a first indorser, as between him- 
 self and the indorsee ; for the act of indorsing is equivalent to a Bill of 
 Exchange on the maker. Chitty on Bills, 218, 219 (8th Am. (Springfield, 
 1836), from 8th London edit.) ; Hill e. Lewis, I Salk. 132. On the whole, 
 there is no case requiring, that upon the face of this declaration we should 
 infer any other than an intent in the defendant to stand as an ordinary 
 indorser. Why do the cases stop short of that ? We have seen that it is 
 because the law either cannot charge the defendant as indorser, or it is be- 
 cause he has entered into some special engagement, incompatible with that 
 character. No case goes farther.'' In Seabury v. Hungerford, 2 Hill, 89, 
 which was a Note payable to A or bearer, and indorsed' by J. B. (the de- 
 fendant), thus, "J. B., backer," Mr. Justice Bronson, in delivering the 
 41 
 
642 PROMISSORY NOTES. [CHAP. X. 
 
 that where a blank indorsement is made upon a Promissory 
 negotiable Note by a third person, long after the date of the 
 
 opinion of the Court, said : " If we assume that the Note was originally 
 passed to the plaintiff, who is named in it as payee, that will not alter the 
 case. The defendant might still have been charged as indorser ; and where 
 he may be so charged, he cannot, I think, be made liable in any other form. 
 The Note is payable to the plaintiff or bearer, and, in its legal effect, was 
 payable to the bearer. The plaintiff might have declared, that Pickering 
 made his Promissory Note payable to bearer, and delivered it to the de- 
 fendant, who thereupon indorsed and delivered it to the plaintiff, with an 
 averment that payment was demanded of the maker at maturity, and due 
 notice of non-payment given to the defendant. The plaintiff might also 
 have transferred the Note by delivery to some third person, and then the 
 holder might have declared in the same way ; or, he could have alleged, 
 that Pickering made his Note payable to Daniel Seabury or bearer, that 
 Seabury delivered it to the defendant, who indorsed and delivered it to the 
 holder. But, without transferring the Note, if the plaintiff had taken the^ 
 proper steps for that purpose, there could be no difficulty in his declaring 
 and recovering against the defendant, as indorser. We had occasion to 
 consider this question in Dean v. Hall, 17 Wend. 214, and that case will 
 be found to be entirely decisive of the one at bar. Coleman made his 
 Promissory Note payable to Howard or bearer, upon the back of which 
 Hall indorsed his name, and the Note was then delivered to Howard, the 
 payee, named in it. We held, that there was no legal difference between 
 a Note payable to bearer, and one payable to a particular person or 
 bearer ; that Howard, the payee, or Dean, to whom he had transferred the 
 Note, might either of them have declared and recovered against Hall, as 
 indorser ; and that they could not charge him in any other character. If 
 the Note had not been negotiable, or if, for any other reason, the case had 
 been such, that the defendant could not, by the exercise of proper diligence, 
 have been charged as indorser, and there had been an agreement that he 
 would answer in some other form, then the plaintiff might have written 
 over the name such a contract as would carry into effect the intention of 
 the parties. When a contract cannot be enforced in the particular mode 
 contemplated by the parties, the Courts, rather than suffer the agreement 
 to fail altogether, will, if possible, give effect to it in some other way. But 
 they never make contracts for parties, nor substitute one contract for an- 
 other. This was, in legal effect, regular mercantile paper, upon which the 
 defendant contracted the obligation of an indorser within the law mer- 
 chant ; and by that obligation, and no other, he is bound. It is said, that 
 the defendant was privy to the consideration for which the Note was given, 
 and therefore liable as maker or guarantor. But it is not enough that the 
 indorser knows what use is to be made of the Note, or that he indorses for 
 the purpose of giving the maker credit, either generally, or with a particular 
 
CHAP. X.] GUARANTY OF PROMISSORY NOTES. 643 
 
 Note, the payee may write over the signature a guaranty 
 thereof for any consideration which the parol proofs shall 
 
 individual. If the Note is negotiable, the only inference to be drawn from 
 the fact of bis putting his name on the back of it is, that he intended to 
 give the maker credit, by becoming answerable as indorser ; and this in- 
 ference is so strong, that it will prevail even where his obligation as indorser 
 cannot be made operative without first obtaining the name of another per- 
 son to the paper. Herrick v. Carman, 12 John. 159 ; Tillman v. AVheeler, 
 17 John. 326. Before he can be made liable as maker or guarantor, there 
 must at the least be an agreement that he will answer as such. Nelson v. 
 Dubois, 13 John. 175. And where a parol agreement to that effect is 
 shown, I do not see how it can be made to take the place of the written 
 contract of indorsement. In other cases, the rule is, that when parties have 
 come to a written contract, that is taken as the evidence of their final agree- 
 ment, and all prior negotiations are merged in it. In Nelson v. Dubois, the 
 defendant agreed to become security for Brundige, and to guarantee the 
 ' payment of a Note which B was about to make to the plaintiif; but when 
 the contract came to be reduced to writing, it took the form of a negotiable 
 Promissory Note, upon which the defendant might have been charged as 
 indorser. That was the final agreement between the parties, and I see no 
 principle upon which the plaintiflf could be allowed to abandon the written 
 contract, and go back to the prior negotiations, for the purpose of charging 
 the defendant as guarantor. And although the defendant was charged in 
 that form, the case is not, I think, an authority for the position which it is 
 usually cited to support. The point, that the defendant might have been 
 made answerable as indorser, was neither taken at the. trial nor on the 
 argument, nor was it mentioned by the Court; but the contrary was .as- 
 sumed in every stage of the cause." In Hall v. Newcomb, 3 Hill, 233, the 
 Note was payable to A or order, and indorsed in blank by the defendant, 
 and sued by A. Mr. Justice Cowen, on that occasion, in delivering the 
 opinion of the Court, distinctly overruled the early cases, and said : " The 
 Note in question was payable .to the plaintiff or order; and there was noth- 
 ing in the indorsement by the defendant below to indicate that he meant 
 to be considered liable in any other character than that of a strictly com- 
 mercial indorser. True, he knew the use which was to be made of the 
 Note ; he was privy to the consideration. But so is every accommodation 
 indorser who becomes a party, with intent to raise money at a particular 
 bank. This takes nothing from his right to require presentment and notice, 
 provided the Note be negotiable. The question depends entirely on the 
 fact of negotiability. The true rule is laid down by Mr. Justice Bronson, 
 in Seabury v. Hungerford, 2 Hill, 84. I know Mr. Justice Spencer con- 
 ceded enough in Herrick v. Carman, 12 John. 161, to maintain this action. 
 But the concession was made on the authority of Josselyn v. Ames, 3 Mass. 
 274, which was the case of a Note not negotiable. The case of Campbell 
 
644 PROMISSORY NOTES. [CHAP. X. 
 
 establish to exist, and the payee may maintain a suit upon 
 the same, as a valid guaranty ; thus supplying at once, by 
 parol proofs, the consideration, and also the written agree- 
 ment.^ [But in Louisiana, it has been declared to be, accord- 
 ing to the uniform jurisprudence of that State, that when a 
 person, not a party to a Note, puts his name on the back of it, 
 he is presumed to bind himself as surety.^] 
 
 § 478. A distinction has also been taken in New York be- 
 tween a written guaranty on the back of a negotiable Note, 
 made after the Note was given, which imports to guarantee 
 the payment of the Note, and a guaranty made at the same 
 date as the Note, which imports only to guarantee the collec- 
 tion of the Note ; and it has been held (as we have seen), 
 
 V. Butler, 14 John. 349, went on Herrick v. Carman, and another case, 
 Nelson v. Dubois, 13 John. 175. The latter case was reconsidered in Sea- 
 bury y. Hungerford, where it was denied that the mere indorsement of 
 negotiable paper can be turned into an absolute guaranty, from the cir- 
 cumstance of its being intended to give the maker credit with the holder. 
 The intent to give credit must be taken with the usual qualification, which 
 attaches to other accommodation indorsements. These are also made with 
 the intent to give credit. See Hough v. Gray, 19 Wend. 202, 203. That 
 the plaintiff below might have put the Note in such a form, by indorsing it 
 himseltj as to charge the defendant below in the character of second indorser, 
 there is not the least doubt. This was conceded in Herrick v. Carman. 
 And see Dean d. Hall, 17 Wend. 221. The Note being entirely available 
 to the holder in that form, the giving it effect in any other would therefore 
 be going beyond the principle, which makes a contract inure, as having a 
 different effect from what its direct words import. Such a forced construc- 
 tion should never be made, except to prevent a failure of the contract alto- 
 gether ; _ut res magis valeat quam pereat. This maxim was agreed upon in 
 Seabury v. Hungerford, as furnishing the only ground for changing a simple 
 indorsement into a guaranty or an absolute promise. Being on a Note 
 payable to the holder, not negotiable, and so no possibility of raising the 
 ordinary obligation of indorser, there is then room to infer that a different 
 obligation was intended, whether the indorsement be for the purpose of 
 giving the maker credit on a future advance or not.'" See Durham v. Man- 
 row, 2 Comst. 533. 
 
 ' Ulen V. Kittredge, 7 Mass. 233 ; Moies v. Bird, 11 Mass. 436 ; Tenney 
 V. Prince, 4 Pick. 385 ; Beckwith v. Angell, 6 Conn. 315 ; Sandford v. 
 Norton, 14 Verm. 228 ; Sylvester v. Downer, 20 Verm. 355. 
 
 '^ McGuire v. Bosworth, 1 Louis. Ann. 248 ; mile, § 476 and notes. 
 
CHAP. X.] GUARANTY OF PROMISSORY NOTES. 645 
 
 that in the former case, the party indorsing the Note is liable 
 as an absolute promisor or maker of the Note, and therefore 
 no consideration need appear on the face of the indorse- 
 ment ; ^ but in the latter case it is a mere guaranty, and, if 
 the consideration does not appear on the face of the indorse- 
 ment, it is void within the statute of frauds.** The distinc- ' 
 tion between the cases is certainly very nice, if, indeed, in 
 any view, it can be deemed satisfactQry ; and, in the former 
 case, it is placing an interpretation upon the word " guar- 
 anty," which seems scarcely justified by any of the ordinary 
 rules applied to similar language. There is also this further 
 difficulty in that case, that the indorsement was not contem- 
 poraneous with the Note ; and no consideration was expi-essed 
 in the guaranty.^ 
 
 § 479. But whatever diversities of interpretation may be 
 found in the authorities, where either a blank indorsement or 
 a full indorsement is made by a third person on the back of 
 a Note made payable to the payee or order, or to the payee or 
 bearer, as to whether he is to be deemed an absolute promisor 
 or maker, or a guarantor, or an indorser, there is one princi- 
 
 ' Mani-ow v. Durham, 3 Hill, 584. See ante, §§ 470, 476 and notes. See 
 also Brewster v. Silence, 4 Seld. 207, disapproving of Manrow v. Durham. 
 
 ^ Hunt V. Brown, 5 Hill, 145. In this last case, Mr. Justice Bronson, in 
 delivering the opinion of the Court, said : " This is a collateral undertaking 
 by the defendant, as a surety to pay the debt of Lewis, and no considera- 
 tion is expressed in, or can be inferred from, the written agreement. The 
 promise is clearly void within the statute of frauds. If it had been a guar- 
 anty of payment, the case would have fallen within the decision in Manrow 
 V. Durham, 3 Hill, 584, and the contract would have been upheld, on the 
 ground, that it was a Promissory Note, which imports a consideration. But 
 this is a guaranty of collection, and I am not aware that such an under- 
 taking has ever been deemed a Promissory Note. The judge has reviewed 
 his decision at the circuit, and ordered a new trial, in which we think he 
 was quite right." 
 
 ' Mr. Justice Bronson, in his dissenting opinion, in Manrow v. Durham, 
 3 Hill, 584, has shown the difBcuIties attendant upon that case in a very 
 strikinof manner ; and it calls, therefore, for a careful examination. To 
 some extent it is certainly broken in upon by the case of Hunt v. Brown, 5 
 Hill, 145. And see Brewster v. Silence, 4 Seld. 207. 
 
646 PROMISSORY NOTES. [CHAP. X; 
 
 pie admitted by all of them ; and that is, that the interpreta- 
 tion ought to be just such as carries into effect the true inten- 
 tion of parties, which may be made out by parol proof of 
 the facts and circumstances which took place at the time of 
 the transaction.^ If the party indorsing the Note intended 
 at the time to be bound only as a guarantor of the maker, 
 he shall not be deemed to be a joint promisor, or an absolute 
 promisor, to the payee. If he intended only to be a second 
 indorser on the Note, he shall never be held as liable to the 
 payee as a first indorser. It is only in cases where the evi- 
 dence on these points is doubtful, or obscure, or totally 
 wanting, that the Courts of law adopt rules of interpreta- 
 tion, as furnishing presumptions of the actual intentions of 
 the parties. 
 
 § 480. If we keep in view this principle of interpretation 
 of the contracts of the parties in cases of this peculiar sort, 
 it will be found that some of the apparent diversities in the 
 authorities immediately vanish, and others become of slight 
 importance, and are, for the most part, easily reconcilable. 
 Where the Note is negotiable, and is indorsed in blank by a 
 third person, not being the payee, or a prior indorsee thereof, 
 there, in the absence of any controlling proof, it is presumed 
 that such person means to bind himself in the character of 
 an indorser, and not otherwise, and precisely in the order 
 and manner in which he stands on the Note.^ If the note is 
 
 ' All the cases cited to § 476 ante hold this more or less strongly. 
 
 ^ Herriek v. Carman, 12 John. 169. In this case the Note was originally 
 made by Ryan, payable to L. Carman & Co., and was indorsed by Herriek ; 
 and a suit was afterwards brought thereon by the plaintiff against Herriek. 
 Mr. Chief Justice Spencer, in delivering the opinion of the Court, said: 
 " The defendant in error (the original plaintiff) purchased the Note at a 
 discount, and with full knowledge of all the facts in the case ; his right, 
 therefore, to recover, cannot be superior or better than that of L. Carman 
 & Co., from whom he derived whatever title he had. It does not appear 
 that the plaintiff in error indorsed the Note for the purpose of giving Ryan 
 credit with L. Carman & Co., or that he was in any wise informed of the 
 use to which Ryan meant to apply the Note. In the absence of any proof ■ 
 to the contrary, we must intend that Herriek meant only to become the 
 
CHAP. X.J GUARANTY OF PEOMISSOEY NOTES. 647 
 
 not negotiable, and the indorsement in blank is not a part of 
 the original transaction, but subsequently made, there, in the 
 
 second indorser, with all the rights incident to that situation. The fact of 
 his indorsing first in point of time can have no influence, for he must have 
 known, and we are to presume he acted on that knowledge, that, though 
 the first to indorse, his indorsement would be nugatory, unless preceded by 
 that of the payees of the Note. Since the case of Russell v. Langstaffe, 
 Doug. 514, it is not to be doubted, that the indorsement of a blank Note is 
 a letter of credit for an indefinite sum ; but the present is not that case. 
 There can be no doubt here but that the Note was filled up when it was 
 indorsed by the plaintifi" in error. Had it appeared that the plaintiflf in- 
 dorsed the Note for the purpose of giving Ryan credit with Lawrence Car- 
 man & Co., then I should have considered him liable to them, or any subse- 
 quent indorser, and the plaintiff's indorsement might have been converted 
 into a guaranty to pay the Note, if Ryan did not, according to the decision 
 of the Supreme Judicial Court in Massachusetts, 3 Mass. 274. Under such 
 a state of facts, there would be no objection to the right of the defendant 
 in error to recover as the indorser of Herrick. In Bishop v. Hayward, 4 
 Term, 470, Lord Kenyon impliedly admits, that there may be circumstances 
 under which a prior indorser may recover against a subsequent one. [And 
 see Morris v. Walker, 15 Q. B. Rep. 599.] We have already decided that 
 the payees of this Note could not, directly or indirectly, recover on it (10 
 John. 224), and that decision is supported by the case of Bishop v. Hay- 
 ward. The defendant in error, having purchased this Note at a discount, 
 and with full knowledge of the facts, has virtually agreed not to resort to 
 Lawrence Carman & Co. in any event ; and yet, if he can sustain this 
 suit, he will in effect violate the agreement under which he became the 
 purchaser of the Note ; because, upon this evidence, Herrick, if obliged to 
 pay, would have his remedy over against Lawrence Carman & Co. The 
 defendant does not stand before the Court with the title or character of a 
 fair, bona fide indorsee of a Note, in the usual course of trade ; but 'rather 
 in the light of a speculator, attempting, under the specious character of an 
 indorsee, to recover a sura of money to which those from whom he derives 
 his title had, with his full knowledge, no right. It may be regarded as a 
 general rule, that, when an indorser cannot recover against a subsequent 
 indorser, no person acquiring a title under such prior indorser, and ac- 
 quainted with all the facts, shall be allowed to recover." The same learned 
 judge, in delivering the opinion of the Court in Nelson v. Dubois, 13 John. 
 175-177, said: "If what was said by me, in delivering the opinion of the 
 Court in the case of Herrick v. Carman, 12 John. 160, be law, then the 
 decision of the Court below was erroneous. Although what was then said 
 was deemed pertinent to that case, it may not have been necessary to the 
 decision of the cause, and this Court, therefore, are not to be considered as 
 compromitted by it. The facts, in that case, are the same as in this, with 
 
&48 PROMISSORY NOTES. [CHAP. X. 
 
 absence of the like controlling proofs, it is deemed a mere 
 guaranty, and the indorger liable only as a guarantor.^ If 
 
 the difference onlj', that it did not appear that Herrick indorsed the Note 
 for the purpose of giving Kyan, the maker of the Note, credit with Law- 
 rence Carman & Co. It was then, and still is, my opinion that, had lie 
 done so, he would have been liable to them, or any subsequent indorsee, 
 and that Herrick's indorsement might have been converted into a guaranty 
 to pay the Note, if Ryan did not. In the present case, it does appear, clear 
 and affirmatively, that the plaintiff refused to sell the horse, for which the 
 Note was given on Brundige's responsibility, and that the defendant put his 
 name on the Note as guarantee for Brundige's payment of it, when it feU 
 due ; and that, but for the defendant's undertaking, as guarantee, the plain- 
 tiff would not have parted with his property." In Oakley v. Johnston, 21 
 Wend. 588, where the Note was negotiable, and payable to a third person 
 who had indorsed it, and afterward was indorsed in blank by the iodorser, 
 before it became due, and he received a money consideration to guarantee 
 it ; it was held, notwithstanding the special circumstances, that he was not 
 liable as guarantor, but solely as indorser. Mr. Justice Cowen, in deliver- 
 ing the opinion of the Court, said : " Had this been an ordinary contract 
 of guaranty or insurance, there is no doubt that it must have contained all 
 the requisites claimed for it by the defendant in the Court below. A con- 
 sideration must have been expressed, and been followed by an agreement 
 to guarantee or insure the payment, and the whole been subscribed by 
 the defendant below. But the defendant below did not put himself in the 
 position of a man expressly contracting to pay the debt of another by an 
 ordinary simple contract, calling, in order to give it effect for all the ex- 
 press requisites demanded by the statute of frauds. He chose to satisfy 
 the statute in another way, which he had a perfect right to do. He in- 
 dorsed those negotiable Notes, in the hands of the plaintiffs, saying : ' I 
 choose to guarantee the debt in that form.' This gave the plaintiffs below 
 the authority to write over his name an order or Bill of Exchange upon 
 Ordronaux to pay the money, and subjected him as indorser. Smallwood 
 V. Vernon, 1 Strange, 478; Lord EUenborough, in Ballingalls ». Gloster, 3 
 East, 482. Suppose that, for the same consideration, he had signed his 
 name as maker to a Note in blank, authorizing the plaintiffs to fill it up 
 with the seven or eight thousand dollars ; is there a doubt that he would 
 have been liable as maker, and might have been so treated throughout ? 
 This doctrine is settled in respect to an indorser. Bussell v. Langstaffe, 
 Doug. 514. There a man indorsed blank Notes, with intent they should 
 be filled up, and money raised on them. The plaintiff took them, knowing 
 
 • Ante, § 474; Dean v. Hall, 17 Wend. 214. But see Oakley v. Boor- 
 man, 21 Wend. 588 ; Manrow v. Durham, 3 Hill, 584 ; Foster v. Barney, 
 ,3 Verm. 60. See Leggett v. Raymond, 6 Hill, 639. 
 
CHAP. X.] GUARANTY OF PROMISSORY NOTES. 649 
 
 the indorsement, instead of being in blank, is filled up, and 
 the party says, " I guarantee the within Note," or uses other 
 equivalent language, the word " guarantee " will have its 
 ordinary strict meaning applied to it unless the context, or 
 the attendant circumstances, repel that interpretation. ^ If 
 the indorsement is on a negotiable Note, payable to a third 
 person, and the party indorsing writes on it, " A B, backer," 
 the latter word will be interpreted to mean indorser, and 
 consequently, the party will be deemed liable to the payee 
 only, as indorser, and not as maker or guarantor.^ On the 
 
 how and why they were indorsed, and sued the indorser, — the declaration 
 stating, that he indorsed the Notes after they were made. The defence 
 was, that they were indorsed prematurely. It was, however, given up by 
 the attorney-general. After Lee had argued it. Lord Mansfield said it did 
 not lie in the defendant's mouth to say the indorsements were irregular. 
 The defendant below here attempted the same thing in another form. He 
 indorsed the Notes for a valuable consideration, while they were in the 
 hands of the plaintiffs below, making out a complete case in point of form. 
 He shall not after that be allowed to gainsay his own act. He is estopped ; 
 The act inures as an indorsement before the plaintiffs below obtained the 
 Notes. To all this the defendant below agreed, and he shall not be received 
 to violate his agreement. It has been held by several Courts, that, where 
 a man puts his name on $ Note, not negotiable, with intent to guarantee its 
 payment, you may write a guaranty, indeed a Promissory Note, over the 
 nanie, and expressing a valuable consideration. Josselyn v. Ames, 3 Mass* 
 274; White v. Howland, 9 Mass. 315; Hunt </. Adams, 5 Mass, 358; 
 Palmer v. Grant, 4 Conn. 389; Beckwith v. Angell, 6 Conn. 315. And 
 see other cases cited in Dean v. Hall, IT Wend. 219, 220; Seymour w. Van 
 Slyck, 8 Wend. 421, 422, and the cases there cited by Sutherland, J. At 
 least you may write the ordinary indorsement, which amounts to a Bill 
 of Exchange.- Chitty on Bills, 218, 219 (Amer. edit. 1836) ; Hill v. Lewis, 
 1 Salk. 132 ; and charge the defendant by notice. This would be making 
 the contract most favorable to him. It is. of the nature of a Note or Bill, 
 and equally so of an indorsement, even in blank, that it imports a consider- 
 ation, the same as a specialty." But see Hall v. Newcomb, 3 Hill, 233 ; 
 ante, § 476, and note ; Labron v. Woram, 1 Hill, 91 ; Tillman v. Wheeler, 
 17 John. 326. 
 
 ' Ante, § 472 ; Loveland v. Shepard, 2 Hill, 139; Lamourieux v. Hewit, 
 5 Wend. 307. See Leggett v. Raymond, 6 Hill, 639 ; Myrick v. Hasey, 27 
 Maine, 9. 
 
 ^ Seabury v. Hungerford, 2 Hill, 80-82. In this case, the Note was as 
 follows: "March 30, 1837. Six months from date, for value received, we 
 
650 PKOMISSOEY NOTES. [CHAP. X. 
 
 other hand, if the Note is negotiable and payable to the order 
 of A, and indorsed by A in blank, and then B should write 
 on the back, " For a valuable consideration, I guarantee the 
 collection of the within Note," he would be held liable as 
 guarantor only, and not as indorser, upon the true import of 
 the instrument.^ But if B had written on the Note, long 
 
 jointly and severally promise to pay Daniel Seabury, or bearer, the sum of 
 one hundred and twenty-five dollars, with interest from date." Signed Jus- 
 tice Pickering. On the back of the Note was written : " John I. Hunger- 
 ford, backer, Schoharie." The Court, notwithstanding the word " backer," 
 construed the party indorsing liable only as an indorser. On that occasion, 
 Mr. Justice Bronson, in delivering the opinion of the Court, said : " Al- 
 though the nature of the obligation which the defendant intended to eon- 
 tract was sufficiently manifested, by putting his name on the back of the 
 Note, he seems to have added the word ' backer,' for the purpose of declar- 
 ing, still more explicitly, that he was to be regarded as an indorser ; and his 
 residence was given for the purpose of indicating the place to which notice 
 might be sent, in case the Note should not be paid at maturity by the 
 maker. I infer, also, from the conversation between the parties about the 
 time the Note fell due, that they both regarded the defendant as standing 
 in the character of an indorser, and entitled tO Notice as such. I do not 
 see, therefore, upon what principle he can be charged as maker or guar- 
 antor. It would be substituting a new contract for the one which the par- 
 ties have made. If the special circumstances, which have been mentioned, 
 "are laid out of view, the result will still be the same. When a man writes 
 his name, without anything more, on the back of a negotiable Promissory 
 Note, he agrees that he will pay the Note to the holder on receiving due 
 notice that the maker, on demand made at the proper time, has neglected 
 to pay it. This is the legal e£fect of the indorsement, and the case is not 
 open to any intendment, — certainly not to the presumption, that the party 
 meant to contract a different obligation. Proof that he put his name on 
 the Note, for the purpose of giving credit to the maker, or enabling him to 
 raise money upon the paper, only shows that there is a special relation be- 
 tween him and the maker ; not between him and the holder. It does not 
 change the nature of the contract of indorsement from what it would be 
 had the Note actually passed through his hands in the usual course of busi- 
 ness, and been indorsed for value. If this be not so, then every accommo- 
 dation indorser may be treated as a maker or guarantor of the paper." 
 See also another citation from the same opinion, ante, § 476, note, and 
 Leggett V. Raymond, 6 Hill, 639. 
 
 ' Loveland v. Shepard, 2 Hill, 139; Hunt v. Brown, 5 Hill, 145. See 
 Leggett V. Raymond, 6 Hill, 639. 
 
CHAP. X.] GUARANTY OF PROMISSORY NOTES. 651 
 
 after it was made, "For value received, I guarantee the pay- 
 ment and collection of the within Note to C (an indorsee), 
 or bearer, when due," there the indorsement would be held 
 to be a new negotiable Note, in which B would be bound as 
 maker to the indorsee, although, as to the original Note, the 
 contract would be a mere guaranty.^ So, if the original 
 
 1 Miller «. Gaston, 2 Hill, 188 ; Ketchell v. Burns, 24 Wend. 456 ; Allen 
 V. Kightmere, 20 John. 365 ; ante, § 472, note. In the case of Miller v. 
 Gaston, 2 Hill, 188, the Note was originally made payable to L. P. 
 Hovey, or order, and signed by Aaron Hovey, and indorsed first by 
 Lindley P. Hovey, as follows : " I guarantee the payment of the 
 Note within." Long afterwards, N. B. Gaston indorsed on the same 
 Note : " For value received, I guarantee the payment and collection 
 of the within Note to Adam Miller, or bearer, when due." On a suit by 
 Miller against Gaston, the Court held Gaston bound as the maker of a new 
 Note. Mr. Justice Bronson, in delivering the opinion of the Court, said : 
 " Neither Lindley P. Hovey nor Gaston was either maker or indorser of 
 the Note within the law merchant ; and the suit was not well brought 
 against them, or either of them, in conjunction with Aaron Hovey the 
 maker. They were guarantors, and were only answerable in that charac- 
 ter. In this State, we have not lost sight of the distinction between com- 
 mercial paper and other written promises to pay money ; and a man may 
 guarantee the collection or payment of a Promissory Note, or make any 
 other special undertaking in relation to it, without being regarded either 
 as maker or indorser of the original instrument. The obligation of a 
 guarantor is usually more onerous than that of an indorser ; but that con- 
 sideration does not give the creditor a right to disregard the contract actu- 
 ally made, and substitute another, though less burdensome one, in its place. 
 Where a third person is privy to the original consideration, and, at the 
 time the Note is given, indorses an absolute undertaking on the back to 
 pay it at maturity, he may be treated as a joint and several promisor with 
 the party who signs on the face of the Note. Hough v. Gray, 19 Wend. 
 202. This stands upon the principle, that two instruments of the same 
 general nature, both executed at the same time, and relating to the same 
 subject-matter, are to be construed together as forming but one agreement. 
 As he who signs on the face, and he who indorses his name upon the back, 
 both promise to do the very same thing, to wit, to pay the money at 
 the specified time, they may, without doing any violence to the con- 
 tract, be regarded as joint makers. And as, in point of form, each 
 promises for himself, the undertaking may be treated as several as 
 well as joint. See Bank of Oxford v. Haynes, 8 Pick. 423. In the case 
 at bar, there is no evidence going to show when Lindley P. Hovey put his 
 
652 PEOMISSOBY NOTES. [CHAP. X. 
 
 payee of a negotiable Note shojild indorse a guaranty upon 
 the back thereof, agreeing to be bound to the payment of the 
 Note, he would be held to be an absolute promisor, and un- 
 conditionally bound to pay the Note, as the true interpreta- 
 tion of his contract.^ Whatever difficulties may be thought 
 
 name on the Note ; and, besides, he is the payee of the Note, and could not 
 have been a joint or several maker with Aaron Hovey. As to Gaston, it is 
 quite evident that he had nothing to do with the original concoction of the 
 Note, for his name does not appear upon it until nearly three months after 
 the Note was given, and after it had passed through the hands of the payee. 
 Gaston cannot, therefore, be charged as maker. The case of Ketchell ». 
 Burns,. 24 Wend. 456, goes upon the ground, that Bums made a new ne- 
 gotiable Promissory Note on the back of the original Not* made by Parsons. 
 It lacked nothing of being a complete instrument in itself, except a specifi- 
 cation of the amount to be paid, and the time of payment ; and in both of 
 those particulars it was rendered certain, by a reference to another writing 
 on the other side of the same piece of paper. Burns was not charged as a 
 joint maker with Parsons, nor as a party in any form to the original Note ; 
 But he was held answerable as upon a new and independent contract. He 
 could not have been sued with Parsons under our statute, for they were not 
 different parties to the same Note. If that case was rightly decided, Gas- 
 ton may be sued as the maker of a new Note ; but he cannot be sued with 
 Aaron Hovey, either as a joint or several maker of the original Note. 
 Neither L. P. Hovey nor Gaston can be charged as indorser, for the plaia 
 reason, that they have severally made an express contract of a different 
 nature, and have not agreed to answer as indorsers. This is not only quite 
 clear upon principle, but it is also settled upon authority. Meech v. 
 Churchill, 2 Wend. 630 ; Lamourieux v. Hewit, 5 Wend. 307. And see 
 Allen V. Rightmere, 20 John. 365. The contract of guaranty upon this 
 Note differs, not only in terms but in its own nature, from the contract of 
 indorsement upon mercantile paper; and the two things cannot be con- 
 founded without losing sight of the agreement made by the parties, and 
 setting up another in the place of it. The case of Watson's Ex'ors v. Mc- 
 Laren, 19 Wend. 557, 566, does not decide, as the reporter seems to sup^ 
 pose, that a guaranty can, under any circumstances, be treated as the in- 
 dorsement of a Note. The judge was speaking of what was said by coun- 
 sel on the authority of Upham v. Prince, 12 Mass. 14. True, he afterwards 
 goes on to speak of what ' that case shows,' without expressing, in terms, 
 any dissent from the doctrine ; but neither dissent nor approbation was 
 called for on that occasion." 
 
 ' Allen V. Rightmere, 20 John. 365. See Williams v. Granger, 4 Day, 
 444 ; Breed v. Hillhouse, 7 Conn. 523 ; Sageu. Wilcox, 6 Conn. 81 ; Bay- 
 ley V. Hazard, 3 Yerg. 487. But see ante, § 147, and note. The note in 
 
CHAP. X.] GUARANTY OF PROMISSORY NOTES. 653 
 
 to exist in some of these cases, as to interpretations put upon 
 the contract of the party sought to be charged, the Courts 
 will be found uniformly to have adopted that which in their 
 judgment expounded truly the intention of all the parties 
 thereto. 
 
 § 481. Passing from these in some respects perplexing con- 
 siderations, applicable to the forms or modes in which a 
 guaranty may arise, let us, in the next and third place, ex- 
 amine when, and under what circumstances, a guaranty is 
 negotiable or not. And here it may be laid down as a gen- 
 eral rule, that a guaranty will not be construed to be nego- 
 tiable, unless, from the language and attendant circumstances, 
 it is manifest that such is the intention of the guarantor, 
 and, by the principles of commercial law, that intention is, 
 capable of being carried fully into effect. 
 
 § 482. Letters of credit, which are familiarly in use in the 
 commercial world, may be properly deemed a species of guar- 
 anty ; and when they are addressed generally to all, and any 
 
 Allen V. Kiglitmere, 20 John. 365, was signed by Toan, payable to Right- 
 mere, or order, and the guaranty by the payee to Rightmere was : " For 
 value received, I sell, assign, and guaranty the payment of the within Note 
 to John Allen, or bearer." The declaration contained counts against him 
 as indorser, and also on the special guaranty ; and the money counts. Mr. 
 Chief Justice Spencer, in delivering the opinion of the Court, said : " Proof 
 of demand and notice of non-payment were not necessary. The defend- 
 ant's engagement is, in effect, that Toan should pay the Note, or that he 
 would pay it. It is the duty of the debtor to seek the creditor, and pay his 
 debt on the very day it becomes due. As regards the maker of the Note, 
 and to render him liable, no demand is necessary. A demand of payment 
 is necessary only to fix an indorser, or a surety, whose undertaking is con- 
 ditional. An indorser does not absolutely engage to pay. It is a condi- 
 tional undertaking to pay, if the maker of the Note does not, upon being 
 required to do so, when the Note falls due, and upon the further condition 
 that the indorser shall be notified of such dfefault. The defendant insists, 
 that he stands in the situation of an indorser merely ; but such is not the 
 fact. The undertaking here is not conditional; it is absolute, that the 
 maker shall pay the Note when due, or that the defendant will himself pay 
 it. In Tillman v. Wheeler, 17 John. 326, and the cases there referred to, 
 it was taken for granted, that upon a guaranty such as this, no demand or 
 notice would have been necessary." See also Heaton v. Hulbert, 3 Scamm. 
 (111.) 489. 
 
654: PROMISSORY NOTES. [CHAP. X. 
 
 persons who will make the advances in favor of a particular 
 party, or to his order, they amount to a direct agreement to 
 repay the advances so made, or to accept a Bill drawn for the 
 same by the creditor.^ In this respect, such a letter may be 
 deemed, for many purposes, a circulating or negotiable credit.^ 
 [If it is addressed to a particular person, it will not render the 
 guarantor responsible to any one other than the person to 
 whom it is addressed.^ But such an instrument is .not a 
 part of the law merchant, and payment cannot be resisted 
 until the instrument is delivered up,* as in case of a nego- 
 tiable Note.^] 
 
 § 483. But it is not our present purpose to examine the 
 nature, operation, or negotiability of guaranties in general, 
 but of those only which are either the accompaniments of, or 
 indorsed upon, Promissory Notes. It seems clear, by the 
 foreign law, that- where the guaranty is on the face, or at 
 the bottom of the Promissory Note (^pour aval), that, unless 
 some other restrictive language accompanies it, it is generally 
 negotiable, and passes to every subsequent indorsee or holder, 
 and gives him precisely the same rights, as if it were made 
 personally to himself, and subjects him to the same obliga- 
 tions.^ And this quality, without question, has a great ten- 
 
 ' Lowryu. Adams, 22 Verm. 160; Union Bank v. Coster, 3 Comst. 203. 
 
 " Marius on Bills, pp. 35, 36 ; MoUoy, De Jure Marit. ch. 10, § 36 ; 1 Bell, 
 Comm. B. 3, ch. 2, § 4, p. 371 (5th edit.) ; Com. Dig. Merchant, F. 3, F. 6; 
 Story on Bills, §§ 459-463; Lawrason w. Mason, 3 Cranch, 492; Boyce 
 V. Edwards, 4 Peters, 121 ; Adams v. Jones, 12 Peters, 207, 213 ; Carregie 
 0. Morrison, 2 Met. 381, 395, 396 ; Kussell v.- Wiggin, 2 Story, 213 ; Story 
 on Bills, § 462, note. 
 
 ' Bleeker v. Hyde, 3 McLean, 279. 
 
 * Orr V. Union Bank, 29 Eng. Law & Eq. 1. 
 
 ' Wilder v. Seelye, 8 Barb. 408. It was held that Circular Notes pay- 
 able by correspondents of defendants, in various places, mentioned in an 
 accompanying "letter of indication," were not payable on production of 
 the " letter of indication " alone, the Notes being lost, as the maker of 
 the Notes might be called upon to pay them. Conflans Quarry Co. v. 
 Parker, Law Rep., 3 C. P. 1. 
 
 ' Story on Bills, § 456; Pardessus, Droit Comm. Tom. 2, art. 397; 
 Savary, Le Parfait Ndgociant, Pt. 1, Liv. 3, ch. 8, p. 206 ; Heinec. de 
 
CHAP. X.J GUARANTY OF PROMISSORY NOTES. 655 
 
 dency to promote the free circulation and general credit of 
 the Note.i The doctrine seems equally applicable, by the 
 foreign law, to cases where the guaranty is on a separate 
 paper, and is transferred at the same time with the Note to 
 the holder. Indeed, according to Pothier, this latter, in his 
 time, was the most ordinary form of a guaranty, or aval? 
 This also is the law of Scotland. ^ 
 
 Camb. cap. 3, §§ 26 - 29 ; Id. cap. 6,§ 10 ; Mr. Senator Verplanck's opinion 
 in McLaren v. Watson's Ex'ors, 26 Wend. 441 - 444 ; Codigo de Com- 
 mercio (of Spain), Lib. 1, tit. 6, § 6, art. 478. 
 
 ' Ibid. 
 
 ^ Pothier, De Change, n. 50 ; Savary, Le Parfait N^gociant, Pt. 1, Liv. 
 3, eh. 8, p. 205 ; Id.. Tom. 2, Pt. 14, p. 94 ; Heinec. de Camb. cap. 3, §§ 26 - 
 29 ; Story on Bills, §§ 395, 454. 
 
 ' 1 Bell, Comm. B. 3, ch. 2, § 4, p. 376. Mr. Bell expresses himself with 
 some hesitation on the subject, although it is not easy to see the ground of 
 his doubts, and the Court of Session in Scotland have fully recognized the 
 doctrine. He says : " It has been questioned, whether the indorsation of a 
 Bill, which has been guaranteed by a separate letter accompanied by de- 
 livery of the letter of guaranty, will give to the indorsee the same right as 
 if the letter itself were a negotiable instrument, passing without any latent 
 qualification. It is generally held by bankers, that, when they thus acquire 
 right to the guaranty, they are entitled to demand payment from the surety, 
 as if the letter had originally been addressed to themselves ; and this has been 
 adjudged by the Court of Session in reliance on such understanding. Be- 
 fore the point can be held established, a much more deliberate inquiry must 
 be made into the usage ; if, indeed, any usage can establish a point against 
 the principles of law, which this seems to be. It may be, that the very de- 
 sign of expressing the guaranty by letter, instead of indorsing the Bill, is 
 to preserve to the writer the full benefit of his remedy against the person 
 to whom the letter is addressed ; and it is anomalous, at once to confer on 
 such an engagement the privileges of an indorsable and negotiable instru- 
 ment, and yet not to give the grantor of it the benefit of that strict ne- 
 gotiation which is the counterpart of the privileges of Bills." Mr. Thomson 
 (on Bills, ch. 3, § 3, p. 278, 2d edit.) says : " In one case, the Court of Ses- 
 sion decided, in conformity with a report from bankers, that a letter of 
 guaranty for a Bill to the original payee, given with the Bill to a bank who 
 discounted it, was effectual to them against the grantor, notwithstanding a 
 discharge by the party to whom it had been granted. But great doubts 
 have been expressed of the soundness of this decision. The report on 
 which it proceeded did not state the practice, but merely expressed an 
 opinion ; and it seems scarcely consistent with principle, that the indorse- 
 
656 PROMISSORY NOTES. [CHAP. X. 
 
 § 484. In our law a different rule seems to prevail. In 
 case of a separate instrument of guaranty, at least, where it 
 is not expressly stated that the guaranty shall be negotiable, 
 as, for example, where the Note is payable to A or order, or 
 A or bearer, unless the separate guaranty of the Note is also 
 made as such to A or order, or A or bearer, it seems clear 
 that the guaranty is to be limited to the very person to 
 whom it is given, or with whom it is just contracted.^ The 
 same doctrine has been applied, where the guaranty contains 
 the name of no person on it, to or with whom it is made ; for 
 then it will be construed to be limited to the first person, 
 who takes the Note, and advances money on the faith of the 
 guaranty, and it will not be deemed to be negotiable.^ But, 
 if the guaranty be in its very terms negotiable, and is passed 
 with the Note, as if it be, like the Note, payable to A or order, 
 or to A or bearer, and is thus designed to circulate as a ne- 
 gotiable instrument, a very diflFerent question may arise, 
 upon which, at present, our law does not furnish any direct 
 conclusive authority.^ But where the guaranty is indorsed 
 on the back of the Note, and is in its terms made negotiable 
 
 ment of a Bill should transfer, with all its privileges, a guaranty, which was 
 merely delivered with it, without indorsement. Such an instrument does 
 not appear to be transferable even by indorsement. The holder of a Bill 
 or Note will not be liable for it, if he delivers it without indorsement, nor 
 for any debt, but by way of sale, or in exchange for another Bill. 
 
 1 Watson's Ex'brs v. McLaren, 19 Wend. 557; S. C, 26 Wend. 425; 
 True V. Fuller, 21 Pick. 140 ; Lamourieux v. Hewit, 5 Wend. 307 ; Taylor 
 V. Binney, 7 Mass. 479 ; Leggett v. Raymond, 6 Hill, 639 ; My rick v. Ha- 
 sey, 27 Maine, 9 ; Tuttle v. Bartholomew, 12 Met. 452 ; Belcher v. Smith, 
 7 Cush. 482 ; Tinker v. McCauley, 3 Gibbs, 188 ; Ten Eyck v. Brown, 4 
 Chand. 151. But see Patridge v. Davis, 20 Verm. 499. 
 
 ' Watson's Ex'ors w. McLaren, 19 Wend. 557; S. C, 26 Wend. 425; 
 Dean v. Hall, 17 Wend. 214; True v. Fuller, 21 Pick. 140; Miller v. 
 Gaston, 2 Hill, 188. See Walton v. Dodson, 3 Car. & P. 162 ; Story on 
 Bills, §§457-459. 
 
 ' See Story on Bills, §§ 456 -458 ; Chitty on Bills, eh. 6, pp. 272, 273 
 (8th edit.) ; Upham v. Prince, 12 Mass. 14. This subject was much dis- 
 cussed in the elaborate opinion of Mr. Senator Verplanck, in the case of 
 McLaren v. Watson's Ex'ors, 26 Wend. 425, 431, 436, 441, 442. 
 
CHAP. X.] GUARANTY OF PROMISSORY NOTES. 657 
 
 to A or order, or to A or bearer, there does not seem any 
 reason to doubt that it acquires a general negotiable characs- 
 ter, and that any subsequent holder is entitled to maintain 
 a suit thereon, who has received it in the ordinary mode of 
 transfer.^ Indeed, it seenis, that such a guaranty amounts, 
 in point of law, to the making of a new negotiable Note, and 
 may be declared on as such ; and the guarantor may be held 
 liable as maker.* 
 
 § 485. In the fourth place, let us consider in what man- 
 ner a guaranty is, or may be, extinguished or discharged. 
 Many of the acts or omissions which will discharge an in- 
 dorser from his responsibility apply with equal force to the 
 case of a guaranty.^ Without pretending to enumerate all 
 of them, in detail, we may advert to a few which are of the 
 most common occurrence, or the most fixed and certain in 
 their character. Among these we may enumerate : (1.) The 
 omission to make due presentment of the Note at its maturity, 
 or to give due notice of the dishonor thereof to the guarantor, 
 whereby he has suffered any loss or injury ; for then lie will 
 be discharged to the extent of the loss or injury, which may 
 be a total loss, or a partial loss.* Thus, if the maker were 
 
 • "Watson's Ex'ors v. McLaren, 19 Wend. 557; S. C, 26 Wend. 425; 
 Ketchell v. Burns, 24 Wend. 456 ; Leggett v. Raymond, 6 Hill, 639 - 641 ; 
 Miller v. Gaston, 2 Hill, 188 ; Manrow v. Durham, 3 Hill, 584 ; Story on 
 Bills, §§ 457, 458. 
 
 ' Ibid. ; ante, § 468. 
 
 ' See ante, § 357; 1 Bell, Comm. B. 3, Pt. 1, ch. 2, § 4, pp. 359, 377 
 (5th edit). 
 
 ' Ante, § 460 ; Bayley on Bills, ch. 7, § 2, pp. 286 - 289 (5th edit.) ; 
 Warrington v. Furbor, 8 East, 242; Philips v. Astling, 2 Taunt. 206; 
 Swinyard v. Bowes, 5 M. & S. 62 ; Holbrow v. Wilkins, 1 B. & C. 10; Van 
 Wart II. WooUey, 3 B. & C. 439 ; Pitman on Princ. and Surety, ch. 5, p. 187. 
 Mr. Thomson (on Bills, ch. 6, § 4, pp. 506 - 509) says : " Persons, who have 
 given a Bill or Note, without their natjes being on it, or who are bound for 
 payment of it by a separate letter of guaranty, do not seem entitled to the 
 same strictness of negotiation as if they had been direct parties, though it 
 is not easy to fix a certain rule as to the negotiation they may require. It 
 may perhaps be held that they are entitled to fair, though not rigid ne- 
 gotiation; for example, to get notice of dishonor, not so soon as is required" 
 42 
 
658 PROMISSORY NOTES. [CHAP, X. 
 
 in good credit at the time of the maturity of the Note, and 
 has since failed in business, or has become a bankrupt, or an 
 
 in Bills, but within such time as may enable them to protect themselves 
 from loss, and that, if the holder fails in these requisites, he must show that 
 the guarantee has not thereby suffered danAge. But it does not seem to . 
 have been quite settled where the onus prohandi on this point lies ; for, in 
 the cases referred to, there has been either direct proof of injury, or proof 
 that there <!Ould be no injury. Thus, the holder of a Bill, which was said 
 to be included under a guaranty by the defendants, was cut off from re- 
 course against them, as he had neither presented the Bill, nor notified its 
 non-payment, either to the drawers or the guarantees, though the acceptors 
 'did not become bankrupt for a year, or the drawers for eight months, after- 
 wards, so that, but for hia neglect, he might have secured payment, or the 
 guarantees might have made good their relief. On the other hand, it was 
 held to be no defence to a guarantee, against payment of a Bill drawn for 
 a debt, for which he had become bound on the acceptor's account, that it 
 had not been presented at the term of payment, when such presentment 
 would have done no good, as the acceptor had previously become barfcrupt. 
 Again, where the plaintiff had got from the defendant, but without his in- 
 dorsation, a Bill drawn by him upon, and accepted by, a debtor of his, and 
 the Bill was dishonored on the 4th February, but no -notice given to the 
 defendant, it being proved, however, that, between 4th and 11th February, 
 at which last date the acceptor became- bankrupt; he could not have paid 
 tbe Bill, the defendant was held not to be discharged for want of notice, 
 as he had not suffered loss. In another case, where the holder of a Bill 
 notified the acceptor's insolvency to a guarantee, before the Bill became 
 duCj the latter was found not entitled to object, that there had been no 
 regular presentment or notice of non-payment, as he could not have suf- 
 fered any injury through the want of them. Although none of tliese cases 
 decides the question of onus prohandi, yet, as it was undertaken by the 
 holder, in the third and fourth cases now cited, it seems rather to be im- 
 plied that it remains with him. Such is the law, so far as it can be 
 deduced from the English authorities, regarding guaranty as applicable to 
 Bills. What is the law of Scotland on the subject, it is difficult to say. 
 In two early cases, one mentioned by Forbes, and the other shortly noticed 
 by Lord Elchies, it is said to have been held, that a person granting a letr 
 ter of credit guaranteeing a Bill was entitled to the same notice of its dis- 
 honor as an obligant on the Bill. C^ the other hand, it has been repeatedly 
 held, that, when a person guaranteed a certain advance to be made to an- 
 other party, the creditor might make good the guaranty against him on 
 instructing the advance, without notifying it to him at the time of making 
 it, or giving notice of the debtor's failure to pay, as of the dishonor of a 
 Bill. This was held, as to a letter of credit for advances made by Bills, 
 
CHAP. X.J GUARANTY OF PROMISSORY NOTES. 659 
 
 insolvent, that will discharge the guarantor, pro tanto, to the 
 extent of the loss or injury sustained by him, from the omis- 
 
 though the letter did not specially refer to the mode of advance, where no 
 notice was given except by raising the action, after the principal debtor had 
 •become bankrupt and had absconded. In another case, where a letter of 
 credit had been given, for the purchases to be made by a certain individual, 
 within a limited time, the grantor of the letter was made liable, without 
 notification, although the principal debtor had in the mean tiite become 
 bankrupt ; the majority of the Court holding, without laying down a gen- 
 eral rule, that, in this case, where the amount of furnishings was not great, 
 aiid the period of the letter limited, no notice was necessary. Iji a case 
 where a person had granted a letter, agreeing to guarantee such sums as 
 another party might draw for, thus directly referring to Bills, the Court 
 sustained recourse against him on the letter, after the principal debtor's 
 failure, though no notice had been given him, either of the advances on the 
 Bills, or the balance unpaid, which had been due for some time before. 
 In a later case, where the defender had granted a letter of guaranty for a 
 Promissory Note, bearing, that the Note was to be renewed for four months 
 longer, and had afterwards, in another letter, agreed to the renewal, and, at 
 the same time, expressed his understanding that the money was to lie for a 
 considerable time, be was held not to be released by the circumstance of no 
 renewal having been taken, or notice given of the non-payment of the first 
 Note, and no diligence having been done on it for several months after it 
 became due. But, in a case where the defender had granted a letter of 
 guaranty, which was held to apply to certain Bills, the Court decided, 
 though ultimately with hesitation, that the circumstance of the holder hav- 
 ing failed to protest certain of these Bills, when they became due, against 
 the different parties to them, though all these parties had previously be- 
 come bankrupt, and the holder had ultimately drawn dividends from their 
 different estates, cut ofi" his claim of recourse against the guarantees. 
 Whether there is any difference, in such a case, as to the guarantee's liabil- 
 ity, between want of protest and want of notice, when all the parties to 
 the Bills have previously become bankrupt, or whether the guarantees are 
 entitled, in either case, to require strict negotiation, is a question which 
 probably requires to be reconsidered. In a case, where the drawer of a 
 Bill had, on the acceptor's failure to retire it, promised by letter, notwith- 
 standing an alteration on the Bill, to retire it in fourteen days, and, within 
 that time, sent a new draft on the same acceptor at ten days, which he de- 
 sired the creditor to get accepted, and advise speedily, it was decided, that 
 the creditor, by neglecting to notify the non-acceptance and non-payment 
 of this draft for two years, during which time the drawee had become in- 
 solvent, had forfeited all claim, even on the first Bill. In another case, a 
 party guaranteeing the regular acceptance of Bills, by a separate letter 
 
660 PEOMISSOEY NOTES. [CHAP. X. 
 
 sion to make due presentment to the maker, or to give due 
 notice to him, the guarantor.^ (2.) The guarantor will be 
 discharged by an act of the holder, which will discharge the 
 maker ; such as an acquittance or a release of the maker.^ 
 (3.) Or, by the holder's giving time to the maker, [or delay- 
 ing unreasonably to enforce proceedings against the maker,^] 
 and thereby impairing the rights, or increasing the risk, of the 
 guarantor.* (4.) Similar principles will apply to the case of 
 the holder's surrendering any collateral security given by the 
 maker, to the prejudice and without the consent of the guar- 
 antor.5 (5.) Taking collateral security from the maker, 
 without any agreement to give time to him, will not dis- 
 charge the guarantor.® ^ 
 
 § 486. On the other hand^ a guarantor, like an indorser, 
 may waive his right to a defence, resting on the gross laches 
 of the holder of the Note, in not seasonably enforcing his 
 demand against the maker, or in giving notice to him, the 
 guarantor. His contract is a conditional one, it is true ; 
 and,- if the condition is not complied with, he is discharged. 
 
 was found not released by their not being presented till the term of pay- 
 ment, when, in consequence of the drawer's intervening failure, acceptance 
 was refused. It was held, that he could not insist on earlier presentment, 
 unless it had been stipulated in his letter of guaranty. 
 
 ' Ibid. 
 
 = Ante, §§ 423, 424 ; 1 Bell, Comm. B. 3, Pt. 1, ch. 2, § 4, pp. 359, 377 
 
 (5th edit.) ; Pitman on Princ. and Surety, ch. 5, p. 157 ; Cowper v. Smith, 
 
 4 M. & W. 519. [But a discharge of the maker by reason of some legal 
 
 disability will not discharge the guarantor. Kimball v. Newell, 7 Hill, 
 
 ■ 116.] 
 
 ' Miller v. Bernley,, 27 Penn. St. 317. 
 
 ' Ibid.; Pitman on Princ. and Surety, ch. 5, p. 166; Id. pp. 174-182; 
 Combe V. Woolf, 8 Bing. 156; Samuellu. Howarth, 3 Meriv.'272; HoU u. 
 Hadley, 5 Bing. 54; Howell v. Jones, 1 C, M. & R. 97; Sigourney v. 
 Wetherell, 6 Met. 553 ; Bangs v. Mosher, 23 Barb* 478 ; Shook v. State, 
 6 Porter, 113 ; Chute v. Pattee, 37 Maine, 102. 
 
 ' Ibid. ; Mayew v. Crickett, 2 Swanst. 185, 191 ; Pitman on Princ. and 
 Surety, ch. 5, pp. 178, 179. 
 
 ' Sigourney v. Wetherell, 6 Met. 553, 564 ; Norton v. Eastman, 4 Greenl. 
 521. 
 
CHAP. X.] GUARANTY OF PROMISSORY NOTES. 661 
 
 But still, he may, by his subsequent promise, revive or con- 
 tinue the guaranty, and if he has at the time full knowledge 
 of all the facts, there seems the same reason for holding him 
 bound by such new promise, as there is in the like case of an 
 indorser.^ 
 
 ' Sigourney v. Wetherell, 6 Met. 553, 563. 
 
662 PBOMISSOKY NOTES. [CHAP. XI. 
 
 CHAPTER XI. 
 
 CHECKS ON BANKS AND BANKERS. 
 
 § 487. It remains to say a few words upon Checks, a spe- 
 cies of instruments which has grown into daily and general 
 use in our day, but wliose origin is much later than that of 
 Bills of Exchange and Promissory Notes. A Check is a 
 written order, or request, addressed to a bank, or to persons 
 carrying on the business of bankers, by a party having money 
 in their hands, requesting them to pay, on presentment, to 
 another person, or to him or bearer, or to him or order, a 
 certain sum of money specified in the instrument.^ In 
 England, where the business of banking is extensively car- 
 ■ ried on by private persons. Checks are usually drawn on 
 them. In America, the business of banking is almost uni- 
 versally carried on by incorporated banks, and rarely by 
 private bankers. Checks in England,^ therefore, are drawn 
 upon the bankers by name, as for example, Messrs. Baring, 
 Brothers ; in America, they are always drawn upon the 
 
 ' Chitty on Bills, ch. 11, p. 545 (8tli edit.) ; Roscoe ,on Bills, ch. 1, p. 9 
 (edit. 1829). 
 
 " The common form of an English Check (Chitty on Bills, ch. 5, p. 167, 
 8th edit.) is as fallows : — 
 Messrs. A B & Co. London, 1 January, 1845. 
 
 Pay to C D or Bearer, Twenty Pounds. 
 £20 (Signed) E. F. 
 
 The common form of an American Check is : — 
 Suffolk Bai^e. 
 $ 1000 — 50 cents. Boston, 1 January, 1845. 
 
 Pay to A B or Bearer, value received, one thousand dollars and -f^. 
 
 (Signed) C. D. 
 
 To the Cashier. 
 
CHAP. XI.] CHECKS ON BANKS AND BANKERS. 663 
 
 bank by its corporate name, and addressed to the cashier 
 thereof. ' 
 
 § 488. Checks are usually drawn payable to a party 
 named, or bearer ; but there is nothing in our law to prevent 
 them from being made payable to a particular person, by 
 name, or to him or bearer, or to him or his order.^ [So they 
 may be payable to a fictitious person, or to the order of Bills 
 payable ; in which case they are the same as if payable to 
 bearer.^] The only difference is, that where they are made 
 payable to a particular person only, they are not negotiable ; 
 where they are payable to order, they are negotiable by in- 
 dorsement ; and where they are payable to bearer, they are 
 negotiable by mere delivery.^ In these respects, they have 
 the precise qualities and effects of Bills of Exchange.* ' Theo- 
 retically, indeed, it may be said, that Checks are not iisually 
 intended for circulation, but to enable the holder immedi- 
 ately to demand and receive the money stated therein, and 
 ' therefore negotiability is not of their essence, but, at most, 
 merely an optional quality. 
 
 ■ [§ 488 a. The negotiability of a Check, payable to bearer, 
 is not restricted by crossing it with the name of a banker, 
 although this be done by the drawer .^ Such a crossing, how- 
 
 •« Thomson on Bills, eh. 1, § 5, pp. 191, 192 (2d edit.) ; Id. ch. 3, p. 257. 
 See Mr. Justice Cowen's opinion, in Harker v. Anderson, 21 Wend. 372, 
 374; Etting v. Brinkerhoff, 2 Hall, 459, 463. See Boehm v. Sterling, 7 
 Term, 423, 430 ; 3 Kent, Lect. 44, p. 75 (Sth edit.) ; Id. p. 78 ; Cruger v. 
 Armstrong, 3 John. Cas. 5, 7, 9 ; Ex parte Brown, 2 Story, 502, 612. 
 
 ' Willets V. The Phcenix Bank, 2 Duer, 121. 
 
 ' Ibid. 
 
 ' From the language used by Mr. Chitty, it might seem, that Checks were 
 by our law always required to be payable to bearer ; for he says a Check 
 "is uniformly made payable to bearer.'' Chitty on Bills, oh. 11, p. 545 
 (8th edit.). The same suggestion is incautiously adopted in Woodruff v. 
 Merchants' Bank of City of New York, 25 Wend. 672, 673. Such is cer- 
 tainly the ordinary form ; but it is not indispensable. Mr. Thomson has 
 more correctly stated the fact, when he says that a Check is to pay a sum 
 of money " to a party therein named, or more generally to the bearer. 
 Thomson on Bills, ch. 1, § 5, pp. 191, 192 (2d edit.). 
 
 ' See Carlon v. Ireland, 34 Eng. Law & Eq. 130. 
 
664 PROMISSORY NOTES. [CHAP. XI. 
 
 ever, is so far a protection to the owner of the Check,. that 
 the banker upon whom it is drawn ought not to pay it ex- 
 cept through a banker ; for if he does so, and the person pre- 
 senting it is not the lawful holder, payment under such 
 circumstances might be strong evidence of negligence on 
 the part of the banker, if he seek to charge the amount 
 against the drawer of the Check. The banker's duty is 
 the same where the crossing is by the customer of the bank, 
 or by an intermediate holder, or where the original crossing 
 is erased, and the name of another banker written in its 
 place. ^] 
 
 ' Bellamy v. Majoribanks, 8 Eng. Law & Eq. 513. In this case, the 
 plaintiffs drew a Check on the defendants, their bankers, payable to bearer, 
 and before delivery crossed the Check with the words : " Bank of Eng- 
 land — for the account of the Accountant-General." The payee of the 
 Check crossed out with a pen the words above named, and wrote the name 
 of his own bankers upon it, and paid it into them in his own account with 
 them. The payee's bankers paid the amount to him, and sent the Check to 
 the defendants, the drawees of the Check, who paid it, and charged it to 
 the plaintiffs, the drawers. The money never was paid to the Accountant- 
 General, and the plaintiffs, being obliged to pay him the amount from their 
 own funds, brought this action against the drawees of the Check for the 
 amount, claiming that defendants had paid the Check negligently, and con- 
 trary to the usage of bankers. Parke, B. said, in giving judgment : " On 
 a previous day we' intimated that there ought to be a new trial in this case, 
 on the ground that the evidence given on the trial was not satisfactory to 
 support the verdict pronounced by I he jury ; and if this were an ordinary 
 case of setting aside a verdict on such a ground, we should, probably, have 
 confined ourselves to merely expressing our opinion to this effect. But 
 there is involved in the present controversy a most important question with 
 respect to Cheeks on bankers, and it seems to us, therefore, that it is right 
 to state, with some particularity, the nature of the question to' which the at- 
 tention of the jury must be called on the new trial. 
 
 " Payment by Checks has now almost entirely superseded all other modes 
 of payment in large, and is in very general use in smaller money trans- 
 actions ; and the practice of crossing them with the name of bankers, the 
 effect of which is the question in the present case, is also in very general 
 use, and occurs in very many instances every day, not only in London, but 
 in all other parts of the kingdom. It therefore seems to us to be of great 
 importance that the effect of these crossings should be rightly understood. 
 Having stated the substance of the pleadings and the facts proved at the 
 
CHAP. XI.] CHECKS ON BANKS AND BANKERS. 665 
 
 § 489. Indeed, Checks have many resemblances to Bills of 
 Exchange, and are, in many respects, governed by the same 
 
 trial, his lordship proceeded. A new trial has been moved for, on the 
 ground of misdirection, and the verdict not being supported by the weight 
 of evidence, the whole question, both as to the law applicable to the case, 
 and as to the facts, has been lately argued before us with great ability, — 
 that, is, before the rest of the Court, in the absence of my brother Piatt, 
 and this is the judgment of the Lord Chief Baron and my brothers Alder- 
 son and Martin, and myself. The objection as to misdirection was aban- 
 doned by the learned counsel for the defendants, but it was insisted, that 
 the verdict on the first count, and on the plea of payment to the second 
 count, was against the evidence, and we are of that opinion. The plaintiffs 
 first contended, that the crossing of the Check to the ' Bank of England,' in 
 the manner in which it was crossed, absolutely restricted the negotiability 
 of the instrument, and rendered it payable to the Bank of England alone, 
 and even to the account mentioned, namely, ' The Accountant-General,' 
 and to no other person ; and that a binding custom or usage to that effect 
 was proved. , We are of opinion no such usage or custom was proved. 
 Without going the length of saying that there was no evidence to go to the 
 jury of the existence of such a custom, we think that the weight of evidence 
 was against it. A custom such as that alleged in the first count would be 
 binding and obligatory on all persons engaged in a certain trade, because 
 long and universally acted upon by all persons in such trade, who may, 
 therefore, reasonably be presumed to have made their contracts upon the 
 faith of it. The custom alleged could only be proved by a long, well- 
 known, acknowledged, and universal usage and practice among bankers to 
 act in accordance with it. So far from this being the cBse, many witnesses 
 called from the different London banking-houses by the plaintiffs, and all 
 called by the defendants, denied its existence. That there was any special 
 usage between the plaintiffs and Messrs. Coutts which would, of course, 
 govern their transactions, was never once suggested. The banking busi- 
 ness in London is not in very many hands, and all the witnesses on both 
 sides were persons of unimpeachable integrity and veracity, and it seems to 
 us quite absurd to suppose that there could be any custom creating such a 
 duty as that alleged in the first count, and absolute and binding by reason 
 of long and universal usage on all the bankers in the metropolis, without 
 those gentlemen being well acquainted with it. The verdict was, therefore, 
 upon this point, against the weight of evidence. 
 
 " We are also of opinion, that such a custom, if proved to have existed in 
 fact, would be incapable of being supported in point of law. The crossing 
 a Check could not operate as an indorsement to a banker whose name is 
 used, because it was not written with any intent to transfer the property in 
 the Check to him, and it wants the essential part of an indorsement, the 
 
666 PROMTSSOBY NOTES. [CHAP. XI- 
 
 rules and principles as the latter.^ But Nullum simile est 
 idem ; and their nature, obligation, and character are in 
 
 delivery of the instrument to the indorsee. And we think that it cannot be 
 ■well supposed that the usage is to be considered as equivalent to the direc- 
 tion by the holder or drawer to the drawee not to pay to the bearer, but to 
 a particular person only, for then the Check would be altered in a man- 
 ner which would take it out of the exemption of the Stamp Act, 53 Gep. 
 3, ch. 104, sched.,1, which applies to Checks payable to bearer only, and 
 the bankers to whom it was addressed could not be bound to pay the person 
 nanied. We are, therefore, of opinion that the crossing the Check with the 
 name of a banker could not have the eifect of restricting its negotiability 
 to such banker only. To hold it to have this effect would be to render the 
 instrument no longer a Check. The case of Sigourney v. Lloyd was cited 
 on both sides;, but it really has no application. The point there decided 
 was .one concerning a restrictive indorsement of a Bill transferable by in- 
 dorsement only, which is lawful. We think, therefore, the plaintiffs cannot 
 succeed on the first cpunt. , 
 
 " The learned counsel for the plaintiffs, however, both at the trial and on 
 the argument, relied with greater confidence up')n the count for money lent, 
 and they insisted that the payment to Messrs. Gosling's clerk of the Check, 
 double crossed in the manner in which it was, was an unauthorized and 
 negligent act, and that the defendants had no right to credit themselves 
 with this payment, and, if this contention were well founded, the defendants 
 would certainly be without defence, as the only answer to this count was a 
 plea of payment. It was also alleged that the addition of the crossing to 
 the Bank of England, the words ' for the account of the Accountant-Gen- 
 eral,' imposed a grater degree of responsibility upon the defendants. None 
 of the witnesses, however, appeared to attach much importance to this cir- 
 cumstance as against the defendants, and many of them considered that it 
 made in their favor, inasmuch as it was well known that the Bank of Eng- 
 land would not receive for the Accountant-General a Check so crossed. 
 The evidence on both sides was mainly directed to the circumstance of the . 
 double crossing. On behalf of the plaintiff, it was said, that the original 
 crossing by Mr. Bellamy to the Bank of England ought to have prevented 
 the defendants from paying the Check to Messrs. Grosling, or, at all events, 
 ought to havfe made the payment one at their peril in the event of Geary 
 misapplying the money. On behalf of the defendants, it was said, the pay- 
 ment was strictly according to the custom. and usage of bankers' in respect 
 of crossed Checks, and ' that the payment was a payment to Geary, the 
 payee of the Check. As the effect of crossing a Check is not, in our opia- 
 ion, to restrain the negotiability of the Check, it will be fit to consider what 
 it probably is, that the attention of the jury may be directed to that ques- 
 
 " 8 Kent, 75 (5th edit.) ; Barnet v. Smith, 10 Foster, 256. 
 
CHAP. XI.] CHECKS ON BANKS AND BANKERS. 667 
 
 some respects different from those of common Bills of Ex- 
 change.^ The circumstances in which they principally differ 
 
 tion on the new trial. It was agreed on all hands that the practice of 
 crossing Checks originated at the clearing-house ; the clerks of the differ- 
 ent bankers which do business there having been accustomed to write 
 across the Checks the names of their employers, so as to enable the clear- 
 ing-house clerks to make up the account. It was quite clear that this had 
 nothing whatever to do with the restriction of the negotiability, for at 
 the time when this was done, the Checks were in the course of payment 
 there on presentation for payment, and all their negotiability was at au 
 end. The establishment of the clearing-house is comparatively modern, 
 and was within the memory of several of the witnesses. It afterwards be- 
 came a common practice to cross Checks which were not intended to go 
 through the clearing-house at all with the name of a banker, or with the 
 
 words ' and Co., leaving the rest in blank ; and a custom or usage has 
 
 certainly sprung up in regard to this also. All the witnesses agreed as to 
 the fact of- the existence of a custom, and we think that the great prepon- 
 derance of evidence on both sides tended to show the custom to be that 
 which is reported to have been stated by some of the jury in the case of 
 Stewart v. Lee, Moo. & M. 158; namely, that, when a Check is crossed, 
 bankers generally refuse to pay it to any one except a banker, and if they 
 do pay it to a person not a banker, they consider that they do it at their 
 peril in the event of the party to whom the payment is made not being en- 
 titled to receive it ; that the object is to secure the payment not to any 
 particular banker, but to a banker, in order that it may be easily traced for 
 whose use the money was received ; and that it was not intended thereby 
 at all to restrict the circulation or negotiability of the Check, but. merely to 
 compel the holder to present it through a quarter of known respectability 
 and credit. We are strongly inclined to think, on a full inquiry, the usage 
 will turn out to be no more than this ; and, considering the custom in this 
 point of view, the crossing is a mere memorandum on the face of the Check, 
 and forms no part of the instrument itself, and in no way alters its effect. 
 There can be no doubt that such a usage is highly beneficial to the public. 
 These instruments are in their essential character payable to bearer; 
 they are in many respects treated as bank-notes, for which of late years they 
 have been largely substituted ; but, like all other things, they are liable to 
 be mislaid, or lost, or stolen, and may get into the hands of persons who 
 are not entitled to receive payment of them. It is manifestly therefore a 
 great protection and safeguard to the real owner, that there should exist 
 the means of tracing and ascertaining for whose use the money paid on the 
 
 ' Mr. Chitty (on Bills, ch. 11, p. 547, 8th edit.) says: " Most of the rules 
 respecting Bills of Exchange and Promissory Notes, especially payable on 
 demtnd, affect Checks on bankers." 
 
668 PEOMISSORY NOTES. [CHAP. XI, 
 
 from Bills of Exchange, or at least from Bills of Exchange 
 in ordinary use and circulation are, (1.) They are always 
 
 Check was received, and to whom the money actually goes, and the pay- 
 ment through the bankers secures this object. Bankers are, in general, 
 persons of great respectability, and, we believe, it may be truly said uni- 
 versally, are incapable of lending themselves to any concealment or suppres- 
 sion of the truth in order to promote or assist fraud. We think, therefore, 
 it is matter of great public advantage and benefit that the custom or usage, 
 which we have already mentioned has been said to exist in point of fact, 
 should be maintained, and we think it may well be, without at all improp- 
 erly trenching upon or restricting the negotiability of Checks. We think 
 the crossing of a Check is a protection and safeguard to the owner of the 
 Check, and in the event of a banker paying a crossed Check otherwise than 
 through a banker, the circumstance of his paying it would be strong evi- 
 dence of negligence in an action against him. For instance, let us sup- 
 pose a customer of a banker to draw and cross a Check, intending to pay it 
 to a person to whom he was indebted, and that afterwards, and before hand- 
 ing it over to his creditor, he either lost it or it was stolen from him ; if the 
 Check was presented otherwise than through a banker, then, according to 
 the custom or usage above mentioned, it would not be paid, but if presented 
 by a banker it would. The mere circumstance of the necessity of placing 
 the Check in the hands of a banker would, of itself, oppose some impedi- 
 ment to the fraudulent holder, in dealing with the Check and making it 
 available, and it could be at once traced and ascertained for whose use the 
 proceeds were received, and would give considerable aid in enabling the 
 drawer to recover back the money in the event of his being entitled to do 
 so. On the other hand, if the banker disregarded the custom, and paid 
 that Check to a private individual, that circumstance would be strong evi- 
 dence against him in the event of his seeking to charge his customer with 
 the payment, if the person actually presenting it was not the lawful bolder 
 and beare,r of the Check. The lawful holder of the Check is, of necessity, 
 entitled to receive payment of it. He could not sue the drawee unless the 
 drawee had accepted the Check, a practice not usual ; but he could sue the 
 drawer for non-payment, if he was the holder for value. No prudent 
 banker would, however, pay a crossed Check otherwise than to a banker, 
 except he was fully satisfied as to the title of the party presenting it to re- 
 ceive payment ; if he did, he would run the risk of the bearer of the Check 
 having no title to it. We think there is no legal objection to the custom 
 thus limited and understood, upon the ground of its being repugnant to the 
 essential quality of the Check, namely, its negotiability by the drawer. 
 There is no obligation upon any one to receive payment by a Check, 
 whether it be crossed or not crossed ; but if a man receives a crossed Check, 
 he seems to us not indeed to incur the obligation of presenting it for^ pay- 
 ment through a banker as a condition precedent, but he ought not to com- 
 
CHAP. XI.] CHKCKS ON BANKS AND BANKEES. 669 
 
 drawn on a bank, or on bankers, and are payable imme- 
 diately on presentment, without any days of grace.^ (2.) 
 
 plain if the drawee does not pay without previous inquiry. There is really 
 no restriction upon its negotiability, but it is in our opinion a reasonable 
 and lawful practice and usage, in order to secure, as far as possible, the 
 payment of the Check to the honest and bona fide holder. It was con- 
 tended by the learned counsel for the plaintiffs in argument before us, that, 
 upon the plea of payment, the onus was upon the defendants to show that 
 the payment was duly and properly made, and in that we agree. But we 
 thinlc it is highly probable the custom or usage before mentioned was that 
 which was established by the preponderance of the evidence at the trial, 
 and that in such a case the circumstance of the Check in question being 
 doubly crossed appears to be immaterial ; the custom would authorize the 
 payment to any banker, and the payment to Messrs. Gosling would not bg 
 the less regular because the Check was a second time cro.ssed in their name. 
 We are, therefore, of opinion, that the verdict as to the question of neglir 
 geuce was also against the weight of evidence, and that the defendants are, 
 on that account, entitled to a new trial. 
 
 " Another point was argued for the plaintifls, that the crossing of the 
 Check was not by the holder, but by the drawer himself, who had the 
 power to give any directions he pleased to the bankers ; that it was equiva- 
 lent to an addition to the Check, which was originally payable to bearer, 
 of an express direction that it should not be paid to bearer, but to the Bank 
 of England only. He admitted, that, in such a supposed case, the de.fend- 
 ants were not bound to pay the Bank of England, because the alteration 
 would bring the Check within the operation of the stamp laws ; but he con- 
 tended, that, if the defendants chose to pay it, they could not do so to any 
 one else, and, if they did, they would disobey the order of their customer, 
 and could not charge the amount to his debit in account. This reasoning 
 would be correct, if the crossing, when made by the drawer, by custom 
 amounted to a direction to pay the named banker only, and for the named 
 account. If such were its conventional meaning, it would be necessary for 
 bankers not merely to look to the signature of the Check, but also to the 
 handwriting of the crossing. But the crossing itself does not import that 
 payment is to be made to the Bank of England only. It is matte;- of evi- 
 dence what its meaning is by the usage. On the trial, the evidence has not 
 made any distinction between the meaning of the words when written by 
 
 ' Thomson on Bills, ch. 1, § 5, p. 191 (2d edit.) ; 3 Kent, Coram. Lect. 44, 
 p. 104, note; Chitty on Bills, ch. 9, pp. 410, 419, 420 (8th edit.) ; Id. ch. 9, 
 p. 377 (9th edit.) ; Ex parte Brown, 2 Story, 503, 504 ; Chitty on Bills, ch. 
 9, p. 410 (8th edit.) ; Id. ch. 11, p. 545; Down o. Hailing, 4 B. & C. 330, 
 333; Woodruff v. Merchants' Bank of City of New York, 25 Wend. 673 ; 
 Salter v. Burt, 20 Wend. 205. 
 
670 PBOMISSOBY NOTES. [CHAP. XI. 
 
 They require no acceptance as distinct from prompt pay^ 
 meiit.i (3.) They are always supposed to be drawn upon a 
 previous deposit of funds,^ and are an absolute appropria- 
 tion^ of so much money in the hands of the bank or bankers 
 to the holder of the Check, to remain there iintil called for, 
 and cannot, therefore, be afterwards withdrawn by th6 
 drawer.* [Whether the holder can maintain an action in 
 
 the customer of a banker and by a third person ; and we have before inti- 
 mated our opinion, that, according to the weight of evidence, they have not 
 the restrictive meaning attributed to them by the plaintiff's counsel. It 
 seems to us probable the, more correct view of the practice of crossing is for 
 the protectioo of the holder of the Check. As we have before said, we feel 
 strongly that, to carry it further, or to make the bearer answerable to his 
 customer for the appropriation by the payee of the proceeds of a crossed 
 Check, when received through a banker, would render the c6nducting of 
 banking business very difficult, if not impracticable, and would cast a very 
 serious, and probably mischievous impediment to carrying on the money 
 transactions of the country." 
 
 » Ibid. 
 
 ' [And if the banker has funds belonging to the drawer, he is liable to an 
 action for refusing to pay them. Kolin v. Steward, 25 Eng. Law & Eq. 
 341 ; Marzetti v. Williams, 1 B. & Ad. 415.] 
 
 ' But see Chapman v. White, 2 Seld. 412; BuUard v. Bandall, 1 Gray, 
 605. 
 
 * Ibid.; Conroy u. Warren, 3 John. Cas. 259, 262, 264; Crugeru. Arm- 
 strong; 3 John. Cas. 5, 9 ; Brown v. Davies, 3 Term. 80 ; Boehm v. Sterling, 
 7 Term. 423, 429, 430. See Kemble v. Mills, 1 M. & G. 757. Mr. Justice 
 Cowen, in Harker o. Anderson, 21 Wend. 372, held Checks to be, to all 
 intents and purposes. Bills of Exchange payable on demand. But the other 
 judges did not assent to his opinion. Indeed, certain principles apply to 
 Checks, which scarcely find, a suitable analogy in Bills of Exchange ; and the 
 case of Little v. The Phoenix Bank, 2 Hill, 425, shows very clearly the danger 
 of confounding them. Bills of Exchange may, without doubt, be drawn 
 payable on demand ; but, ordinarily, they are not so drawn ; and therefore 
 are entitled to grace. Bills of Exchange may be presented for payment, 
 without a prior presentment for acceptance ; but then this is so only when 
 they are payable at so many days after date. Bills of Exchange are not 
 always, and, indeed, not in our times ordinarily, drawn upon actual funds 
 in the hands of the drawee ; biit frequently are drawn upon a previous 
 arranged credit. Checks are often designated as Bills of Exchange, and 
 in a general sense may be justly called so. But, in a juridical view, it often 
 becomes necessary to discriminate between them, because the analogies do 
 
CHAP. XI.J CHECKS ON BANKS AND BANKERS. 671 
 
 his own name against the drawees, if they refuse to pay the 
 Check, having sufficient funds of the drawer wherewith to 
 pay it, is not entirely agreed.^] We shall presently see 
 that these circumstances have an important bearing and 
 influence upon the rights and responsibilities of the parties 
 to Checks. 
 
 § 490. "It has already been stated, that Checks are payable 
 immediately on presentment, without any days of grace.^ 
 They are sonietimes made in terms payable on demand, 
 which language of course imports that they are payable im- 
 mediately. But they are usually in England, and almost in- 
 variably in America, made payable without the addition of 
 the words " on demand " ; and then they are, in contemplation 
 
 not hold throughout. It is often said, that the indoraer of a negotiable 
 Note may be treated as the drawer of a Bill of Exchange on the maker. 
 But we should deceive ourselves if we were to suppose, that for all pur- 
 poses, and under all circumstances, the indorser of a Note was to be deemed 
 liable in the same manner, and to the same extent, as the drawer of a 
 Bill ; or, that the maker was in all cases affected by the same responiiibility 
 as an acceptor. Thus, for example, the maker never admits the genuine- 
 ness of the signature of an indorser, as an acceptor does of the drawer. 
 Story on Bills, §§ 113, 262 - 264; ante, §§ 135, 379. Mr. Chancellor Kent, 
 in his Commentaries (Vol. 3, Lect. 44, p. 104, note, 6th edit.), has well 
 said, that there is so much analogy between Checks and Bills of Exchange 
 and Promissory Notes that they are frequently spoken of without discrimi- 
 nation ; and this sufficiently accounts for the general language in the 
 authorities cited by Mr. Justice Cowen, in 21 Wend. 372-374. In Wood- 
 ruff V. Merchants' Bank of City of New York, 6 Hill, 1 74, the Court took 
 a clear distinction between Checks and Bills of Exchange, as governed in 
 some respect by different principles. 
 
 ' See National Bank v. Eliot Bank, 20 Law Kep. 138, where the subject 
 is discussed. New York, &c. Bank u. Gibson, 5 Duer, 574. 
 
 ' Morrison v. Bailey, 5 Ohio St. 13; Westminster Bank v. Wheaton, 4 
 E. I. 30 ; ante, § 489. [Payment on a forged Check is of course no pay- 
 ment as against the party whose named is forged, unless the forgery has in 
 some way been accomplished through the laches of the party whose name 
 is forged. Orr v. Union Bank, 29 Eng. Law & Eq. 1 ; Hall v. Fuller, 5 
 B. & C. 750 ; Johnson v. Windle, 3 Bing. (N. C.) 225 ; Young v. Grote, 4 
 Bing. 253 ; Morgan v. Bank of New York, 1 Eern. 404 ; Coggill v. Am. 
 Exch. Bank, 1 Comst. 113.] 
 
672 PROMISSORY NOTES. [CHAP. XI. 
 
 of law, equally payable on demand.^ It makes no difference 
 in point of law, as between the parties (independent of the 
 Stamp Acts), whether a Check beantedated or postdated ;^ 
 it is still payable on its presentment, at any time after the 
 date.^ But a case may be supposed of a Check drawn on a 
 bank, payable on a specified day, as, for example, 'it may be 
 dated on the first day of January, 1815, and be made payable 
 in terms on the tenth day of the same January ; and the 
 question might then arise, whether it was payable on that 
 very day, without any allowance of the days of grace.* The 
 
 ' Chitty on Bills, ch. 5, p. 167 (8th edit.) ; ante, §§ 224, 487, note. 
 
 ' [A postdated Check is not absolutely void ; if paid withont knowledge 
 of the false date, the payment is good. Watson a. Poulson, 7 Eng. Law & 
 Eq. 585.] 
 
 ' Bayley on Bills, ch. 3, § 6, p. 85 (5th edit.) ; Barker v. Anderson, 21 
 Wend. 372, 374, per Cowen, J. ; Mohawk Bank v. Broderick, 10 Wend. 
 304 ; S. C, 13 Wend. 133 ; Allen v. Keeves, 1 East, 435 ; Ex parte Brown, 
 2 Story, 502, 512 ; Salter v. Burt, 20 Wend. 205 ; ante, § 220, note. 
 
 * See Mohawk Bank jj. Broderick, 10 Wend. 304; S. C, 13 Wend. 133. 
 In this case, Mr. Chancellor Walworth said : " The Check in this case was 
 postdated, as of the 14th of January, although actually drawn and nego- 
 tiated before that time. Hence, it is insisted, in behalf of the defendants, 
 that it must be considered as if it was dated at the time it was actually 
 drawn, and was made payable on a day certain. The Court below was 
 right, however, in treating it as a Bill or Check, payable at sight, or upon 
 the presentment thereof at the bank at any time on or afler the day of its 
 date, but not before ; or, in other words, so far as concerns the question of 
 presentment and notice of non-payment, it is to be considered as if drawn, 
 as well as dated, on the 14th of January. The drawing of postdated 
 Checks is an every day occurrence in our commercial cities ; and I believe 
 the uniform understanding of the parties in such cases is in accordance 
 with the construction which the Supreme Court has given to the transac- 
 tion in thej present case. It is not necessary, for the decision of this case, 
 to inquire jfhether any greater degree of diligence is to be used by the 
 holder of a negotiable Check upon a bank, in presenting it for payment, 
 than is required from the holder of a similar draft, at sight, upon an individ- 
 ual. Both are at times mad^ and negotiated for the avowed purpose of a 
 temporary circulation ; and when made for such a purpose, I can see no 
 good reason for requiring of the holder any greater degree of diligence in 
 the one case than in the other. The true rule as to both undoubtedly is, 
 that the holder must use reasonable diligence, according to the ordinary 
 
CHAP. XI.] CHECKS ON BANKS AND BANKERS. 673 
 
 general understanding among banks is believed to be, that in 
 such a case the Check is payable on the tenth day of January, 
 without grace, and it is treated as a, Check payable on de- 
 mand, on that very day. In any other view the check might 
 be presented for, and require, acceptance ; and yet it is un- 
 derstood, that such acceptance is never called for, or given.^ 
 
 course of business in other cases of a like nature ; and what is such reason- 
 able diligence must, in some measure, depend upon the particular circum- 
 stances of each case. For instance, a person residing in Schenectady gives 
 me his Check upon a bank in Albany in payment of an antecedent debt, 
 or gives me his draft upon an individual residing in the same place, under 
 similar circumstances ; I should not, in either case, be authorized to send 
 the Check or Bill to my correspondent at New Orleans, to be laid out in 
 the purchase of sugar or cotton, and hold the drawer liable for the solvency 
 of the bank or the drawee of the Bill, in the mean time, because that is 
 not the ordinary course of business, and he could not, therefore, have con- 
 templated such a risk ; but, if I had purchased the Check or Bill of the 
 drawer, for the purpose of being sent to New Orleans, and to be negotiated 
 there, and with his knowledge, he would then have assumed the risk of the 
 solvency of the' drawee until the Check or Bill was returned and presented 
 for payment, according to the usual course of trade in such cases." 
 
 ' See Chitty on Bills, ch. 11, p. 546 (8th edit.) ; Ex parte Brown, 2 
 Story, 502, 512, 514, 515. But see Harker v. Anderson, 21 Wend. 372, 
 375, Mr. J. Cowen's opinion. This whole subject was much discussed In 
 the Matter of Brown, 2 Story, 502, where the Checks were drawn on the 
 Granite Bank, dated on a particular day, and were payable on another 
 specified day. One of the Checks, was in the following form : " Granite 
 Bank, $703.50. Boston, April 18, 1841. Pay to W. Courtis & Co., 18 
 May, or bearer, seven hundred three dollars, fifty cents. Ephraim Brown, 
 by J. W. Green. To Cashier." The Court held them to be Checks pay- 
 able on the very day specified, without grace ; and that the omission of the 
 holder to make presentment for payment on the day specified did not 
 excuse the drawer from payment, as he had no funds in the Bank when 
 the Check was presented for payment. On that occasion the Court said : 
 " In respect to the first point, the argument pressed is, that Checks are 
 always, and properly, payable on demand, and that, when payable at a 
 future time, they become, to all intents and purposes, inland Bills of Ex- 
 change. But I am not by any means prepared to admit the validity or 
 force of this distinction; and no case has been cited, which, in my judg- 
 ment, satisfactorily establishes it. A Check is not less a Cheek because it 
 is postdated, and thereby becomes, in effect, payable at a future and differ- 
 ent time from that on which it is drawn, or issued. This is sufliciently 
 43 
 
674 PiJOMISSORY NOTES. [CHAP. XI. 
 
 [But in a late case in New York, the contrary was held ; 
 
 apparent from the case of Allen v. Keeves, 1 East, 435. That it may be 
 declared upon as a Bill of Exchange is no proof that it may not also be 
 declared upon as a Check. In many cases they are identical in their legal 
 results ; but by no means in all. Mr. Chitty very properly says, that a 
 Check nearly resembles a Bill of Exchange ; but (he adds) it is uniformly 
 made payable to bearer, and should be drawn upon a banker, or a person 
 acting as such. I agree that it nearly resembles a Bill of Exchange ; but 
 nullum simile est idem. It is commonly, although not always, made pay- 
 able to the bearer ; but I conceive it to be still a Check, if drawn on a 
 bank or banker, although payable to a particular party only by name, or to 
 him or his order. It is usually, also, made payable on demand ; although 
 I am not aware that this is an essential requisite. The distinguishing 
 characteristics of Checks, as contradistinguished from Bills of Exchange, 
 are (as it seems to me) that they are always drawn on a bank or banker ; 
 that they are payable immediately on presentment, without the allowance 
 of any days of grace ; and that they are never presentable for mere 
 acceptance, but only for payment. Mr. Chancellor Kent, in his learned 
 Commentaries (3 Kent, 75, 4th edit.), says : ' A Check upon a bank par- 
 takes more of the character of a Bill of Exchange than of a Promissory 
 Note. It is transferable, like a Bill of Exchange. It is not a direct 
 promise by the drawer to pay ; but it is an undertaking, on his part, that 
 the drawee shall accept and pay, and the drawer is answerable only in the 
 event of the failure of the drawee to pay.' But he has more fully ex- 
 plained his real meaning in a note to the index to the fourth edition of his 
 Commentaries (4 Kent, 549, note*, 4th edit), which I adopt, with entire 
 confidence, as expressive of my own opinion : ' A Check,' says he, ' differs 
 from a Bill of Exchange in this, that it has no days of grace, and requires 
 no acceptance distinct from prompt payment. The drawer of a Check is 
 not a surety, but the principal debtor, as much as the maker of a Promissory 
 Note. The Check is the acknowledgment of a certain sum due. It is an 
 absolute appropriation of so much money in the hands of his banker to the 
 holder of the Check, and there it ought to remain until called for, and 
 unless the drawer actually suffers by the delay, as by the intermediate failure 
 of his banker, he has no reason to complain of delay not unreasonably pro- 
 tracted. If the holder does so unreasonably delay, he assumes the risk of 
 the drawee's failure, and he may, under circumstances, be deemed to have 
 made the Check his own, to the discharge of the drawer. But this is quite 
 distinct from the strict rule of diligence applicable to a surety, in which 
 Xy<A\\, stands the indbrser, who has a right to require diligence, on the part 
 of the holder, to relieve him from responsibility. It is true, however, that 
 there is so much analogy between Checks and Bills of Exchange, and nego- 
 tiable Notes, that they are frequently spoken of without discrimination.' 
 The case of Gruger u. Armstrong, 3 John. Cas. 5, does not inculcate any 
 
CHAP.- XI.] CHECKS ON BANKS AND BANKERS. 675 
 
 and the same rule as to grace was held to apply to Checks 
 
 different doctrine, when correctly considered. And the case of Conroy v. 
 Warren, 3 John. Cas. 259, expressly distinguishes between Checks and Bills 
 of Exchange ; and puts the doctrine of the necessity of presentment for 
 payment upon its true and reasonable ground ; whether any damages have 
 been sustained by the drawer by the delay or not; and I conceive that the 
 point, as to notice of the dishonor of a Cheek, would mainly turn upon 
 similar considerations. We all know, from the history of inland Bills of 
 Exchange, that, originally, they were not entitled to days of grace ; and 
 that days of grace were first established, as applicable to them, by the 
 statutes 9th and 10th Will. 3, ch. 17, and 3d and 4th of Anne, stat 2, ch. 9. 
 In Massachusetts, days of grace were not formerly allowed upon Promissory 
 Notes, payable at a future time ; and the like rule was supposed to apply to 
 inland Bills of Exchange, or, at least, the contrary was not established. 
 This rule in Massachusetts was altered by the statute of 1824, ch. 130, and 
 by the Revised Laws of 1835, stat. 12, ch. 33, §§ 5, 6, which allow days of 
 grace upon all Bills of Exchange, payable at sight, or at a future day cer- 
 tain, and on all Promissory negotiable Notes, orders, or drafts, payable at a 
 future day certain. But no mention whatsoever is made in either statute 
 of Checks ; but they are silently left to the known rules, practice, and 
 usages of banks, which I believe to be invariable, never to accept them 
 prior to payment, and always to pay them on presentment on or after the 
 day stated for payment by the date, or upon the face of the Check. Thus, 
 if a Check be dated on the 1st of December, and be payable on the 10th 
 of December, it is presentable on the latter day, and on presentment on 
 that day, it will be paid by the bank. It is never presented for acceptance, 
 and no days of grace are ever allowed upon it. In short, it is always 
 treated as payable on the very day designated as the day of payment. If 
 it be asked, what is the reason of all this ? the true answer is, that it is the 
 usage of banks, and the understanding of the parties to the Check, and, 
 being the constant habit of business, it becomes, like all the other usages of 
 merchants, the lex et norma, by which to expound the contract. The 
 parties have, in the present case, used the common form of a Bank Check, 
 and, by so using it, they impliedly authorize the bank to treat it as a Check, 
 and pay it as a Check, payable on the very day on which it is dated, or on 
 which it purports to be payable, without any grace. The words of both 
 these instruments are precisely alike, except as to sums and times of pay- 
 ment. The first one is : ' Granite Bank, Boston, April 18, 1851. Pay to 
 W. Courtis & Co., 18 May, or bearer, seven hundred and three dollars 
 60-100. Ephraim Brown, by J. W. Green. To the Cashier.' The second 
 is dated on the 18th of April, and is to ' Pay to W. Courtis & Co., 10th 
 June, or bearer, seven hundred and seventy-six dollars 52-100.' Signed in 
 the same manner, and addressed in the same way, ' To the Cashier ' of the 
 Granite Bank. No one can doubt that it is entirely competent for the 
 
676 PROMISSORY NOTES. [OHAP. XI, 
 
 payable at a future day, as to Bills strictly so called ; ^ sub- 
 parties to agree, that an instrament shall be treated, to all intents and 
 purposes, as a Check, and to have all the attributes and incidents thereof, 
 and to declare that it shall not be deemed a Bill of Exchange. In fact, by 
 the forms here adopted, the parties do so declare ; and, as 1 understand it, 
 the banks uniformly act upon this understanding, and always pay such 
 Checks upon the day fixed for payment, without any allowance of grace, if 
 they have funds ; and this is done without any suspicion that it is a misuser 
 or misapplication of the funds of the drawer. I am aware of the case of Brown 
 V. Lusk, 4 Yerg. 210, in which it was held, that a Cheek, drawn in Nashville, 
 on the Branch Bank of the United States at Nashville, on the 13th of 
 December, 1827, payable to A B, or bearer, on the 14th of January follow- 
 ing, was held to be an inland Bill of Exchange, and entitled to the days of 
 grace. This ease was decided in the absence of Mr. Chief Justice Catron ; 
 and not only was no authority cited for the position, but the very citation 
 from Chitty on Bills, which was relied on to support it, distinctly shows, 
 that there is a marked distinction between Checks and Bills of Exchange. 
 Mr. Chitty there says : ' They ' (Checks) ' are not due before payment is 
 demanded, in which they differ from Bills of Exchange and Promissory 
 Notes, payable on a particular day.' Now, the most that this position 
 proves is, that Checks are not governed in all cases by the same rules as 
 Bills of Exchange and Promissory Notes. They are not payable until 
 presentment. But how does this show when they are presentable ; or that 
 they may not be made payable on any other day certain than the day of 
 the date ? Or that days of grace are to be allowed upon them, if payable 
 on a day certain '? The learned judge, who delivered the opinion of the 
 Court in Brown v. Lusk, added : ' They ' (Checke) ' are appropriations of 
 money in the hands of a banker, and are payable on presentment.' In 
 this remark, he but followed out what was intimated by Lord Kenyon, in 
 Boehm v. Sterling, 7 Term, 423, 429, and has been since often recognized as 
 sound law. But we all know, that, at law, neither a Bill of Exchange, 
 until acceptance, nor a Promissory Note, is any appropriation of the money 
 of the drawer or maker in the hands of any one. In truth, a Check is an 
 instrument sui generis, and is construed exactly as the parties intend it. It 
 is supposed to be drawn upon funds in the hands of the bank or banker, 
 and it appropriates the amount to the holder of the check. And I agree 
 with Lord Kenyon, in holding, that the drawer cannot honestly alter the 
 state of his accounts with the bank or banker, so as not to leave in his 
 hands sufficient to pay the Check on the very day on which it is present- 
 able and payable ; for that would be a fraudulent misapplication of the 
 appropriated funds." • 
 
 ' [Morrison v. Bailey, 5 Ohio St. 13; Bowen v. Newell, 4 Seld. 190! 
 overruling the same case in 5 Sandf. 326. Johnson, J. said : " The main 
 
CHAP. XI.] CHECKS ON BANKS AND BANKERS. 677 
 
 ject, of course, to be controlled by usage on this subject, as in 
 other cases.i] 
 
 question in this ease is, whether an instrument in the following form is or is 
 not entitled to days of grace : — 
 
 "New York, October 5, 1849. 
 " Cashier of Thomson Bank, pay Zenas Newell or order two thousand 
 dollars on the 12th inst. (Signed), " B. SEARLS & Co. 
 
 (Indorsed), " ZENAS NEWELL." 
 
 The Thomson Bank is in Connecticut. Whether days of grace are to 
 be allowed upon this instrument does not depend upon its being drawn 
 upon a Bank, for in that case the rule would be general, and deny grace 
 to all Bills drawn upon banks. The contrary was adjudged in respect to a 
 Bill drawn at sixty days after date, in Woodruff v. Merchants' Bank (25 
 Wend. 673 ; S. C, in error, 6 Hill, 174). I do not see what difference in 
 the legal rights of the parties it would have made if the Check in suit had 
 been worded " seven days after date " instead of saying " on the 12th inst.," 
 and yet if it had borne those words there would have been no possible 
 ground for distinguishing the case from Woodruff v. The Merchants' Bank. 
 No case has been cited to the contrary, except In the Matter of Brown, 2 
 Story, 502. In that case, however, Judge Story puts his opinion upon a 
 variety of grounds beside this, and upon this his opinion does not seem to 
 me capable of being sustained. He says : " The argument pressed is, that 
 Checks are always payable on demand, and that when payable at a future 
 time they become inland Bills " ; and after saying that " a Check is not less 
 a Check for being postdated " (with which Mohawk Bank v. Broderick 
 agrees, 13 Wend. 133; S. C, 10 Wend. 304), he adds : "It is commonly, 
 though not always, payable to the bearer, but I conceive it to be still a 
 Check if drawn on a bank or banker, although payable to a particular 
 party only by name, or to him or his order. It is usually, also, made paya- 
 ble on demand, though I am not aware that this is an essential requisite. 
 The distinguishing characteristics of Checks as contradistinguished from 
 Bills of Exchange are, as it seems to me, that they are always drawn upon 
 a bank or banker; that they are payable immediately on presentment, 
 without the allowance of any days of grace ; and that they are never pre- 
 sentable for acceptance, but only for payment." Of all these characteris- 
 tics, the only one that can serve any purpose in determining whether any 
 particular instrument is a Check or a Bill of Exchange is that it is drawn 
 upon a bank or banker. The others may or may not be legal qualities 
 which belong to Checks after they are ascertained to be Checks, but do not 
 aid in determining their character. The citations from Kent's Commenta- 
 
 ' Bowen v. Newell, 2 Duer, 584. But see 5 Ohio St. 13, as to effect of 
 usage of Courts on this question. 
 
678 PKOMISSOBY NOTES. [CHAP. XI. 
 
 § 491. The differences in point of law between Checks and 
 Bills of Exchange, or at least those of the ordinary form and 
 in common use, will be fully seen and illustrated by a few 
 considerations. In the first place, it is a well-known rule of 
 law, that a "Bill of Exchange, or a Promissory Note, taken 
 after the day of payment, or, as the common phrase is, when 
 it is overdue, subjects the holder to all the equities attaching 
 to it in the hands of the party from whom he receives it.^ 
 But this rule does liot apply to a Check ; for it is not treated • 
 as overdue, although it is taken by the holder some days 
 after its date, and it is payable on demand. On the con- 
 trary, the holder, in such a case, takes it, subject to no 
 equities, of which he has not, at the time, notice ; ^ for a 
 Check is not treated as overdue, merely because it has not 
 been presented as early as it might be, or as a Bill of Ex- 
 change is required to be, to charge the drawer, or indorser, 
 or transferrer.^ One reason for this seems to be, that, strictly 
 
 ries in the same opinion are merely to the same effect ; and the case on 
 this branch of it is, after all, put upon the statement, that, by the usage of 
 banks and the understanding of parties, such instruments are always treated 
 as payable on the very day designated as the day of payment. We have, 
 however, seen by the law of this State, as expounded in the Court for the 
 correction of errors, that, conceding any instrument to be a Cheek which is 
 drawn upon a bank, it does not therefore possess the quality of being paya- 
 ble on the day when, by its face, payment is to be made, but that, unless it 
 be payable on demand, it has days of grace. 
 
 The usage which was proved in this case ought to have been excluded, 
 in accordance with Woodruff v. The Merchants' Bank. The judgment of 
 the Superior Court and of the referee should be reversed, and a new trial 
 ordered, with costs to abide the event."] 
 
 ' ^n(e, §§178-180. 
 
 ' [But in Anderson v. Busteed, 5 Duer, 485, it was held that the indorsee 
 of a bank Check, taken from the payee some time after it was drawn, and 
 with knowledge of its dishonor, took it subject to any set-off the drawer might 
 have against the payee.] 
 
 = Rothschilds v. Corney, 9 B. & C. 388. See Down ». Hailing, 4 B. & C. 
 330, 333 ; Brooks v. Mitchell, 9 M. & W. 15 ; Bayley on Bills, ch. 5, § 3, 
 p. 164 (5th edit.) ; Boehm v. Sterling, 7 Term, 423, 429,430. See Wil- 
 lets V. The Phenix Bank, 2 Duer, 121. 
 
CHAP. XI.] CHECKS ON BANKS AND BANKERS. 679 
 
 speaking, a Check is not due until it is demanded.^ And,' 
 therefore, it is not overdue until it has been presented for 
 payment and payment refused.^ Hence, a bona fide holder, 
 
 ^ Cniger v. Armstrong, 3 John. Cas. 5, 9 ; Ghitty on Bills, ch. 11, p. 546 
 (8th edit.). 
 
 ' See Rothschilds v. Corney, 391, per Littledale, J. ; Barough u. White, 
 4 B. & C. 325, 328, 329 ; Roseoe on Bills, p. 134 (edit. 1829). In respect 
 to Bills and Notes payable on demand, the time when they should be pre- 
 sented for payment, and the time when they are, as to subsequent holders, 
 to be treated as overdue, does not seem very accurately defined ; and, in 
 relation to them, as in relation to Checks, much may depend upon the na- 
 ture of the particular Bills or Notes, and the course of business respecting 
 them. In Barough v. White, 4 B. & C. 325, it seems to have been thought 
 that a Note, payable on demand, was not to be deemed overdue, if it was 
 apparently intended for circulation. Mr. Chitty (on Bills, ch. 9, p. 416) 
 says : " If a Bill or Note, payable on demand, be payable elsewhere than 
 in the place where it was received, it was formerly supposed that the party 
 receiving it must forward it for payment by the next post after he received 
 it, although that post went out on the same day. But it is now established, 
 that it would sufiice if such Bill or Note were forwarded for payment by 
 the regular post on the day after it is received, and that the person re- 
 ceiving it by the post in London is not bound to present it for payment till 
 the next day. It is certain, however, that the holder's not forwarding such 
 Bill or Note for payment by the post, or some conveyance of the day after 
 it was received, and keeping it in his possession till on or after the third 
 day for sending it, would be deemed laches; a, Bill or i Note must not be 
 locked up or kept till a third day, and, if it be, the party from whom the 
 holder received it will be discharged from liability in case it be dishonored. 
 In a recent case, where the defendant, being indebted to the plaintiff, paid 
 to him the debt in country bank-notes (payable in the country, and also in 
 London) on a Friday, several hours before the post went out, and the 
 plaintiff transmitted halves of the Notes by a coach on Saturday, and the 
 other halves by Sunday night's post, and all the halves arrived in London 
 on Monday, but those by the coach two hours later than those by the post, 
 and were presented for payment and dishonored on the Tuesday, it was 
 held, that the plaintiff had not been guilty Of laches, and that he might 
 recover from the defendant his original debt. And where a servant, on 
 behalf of his master, at one o'clock on a Friday afternoon, received of the 
 defendant, at Davenport, country bank-notes, payable there, in payment 
 for cattle sold there, and, in consequence of his master being absent from 
 home all Saturday morning, did not deliver them to him until after banking 
 hours on Saturday evening, and they were not presented for payment until 
 Monday morning, and between three and four, in the afternoon of Satur- 
 
680 PKOMISSORY NOTES. [CHAP. XL 
 
 purchasing a Check six days after its date, for a valuable 
 consideration, is entitled to hold it against the drawer, and 
 to claim payment from the banker, notwithstanding it has 
 been obtained by fraud from the drawer.^ And if tlie 
 drawer, or indorser, or transferrer of a Oheck has issued or 
 passed it long after its date, he will be held liable to a subse- 
 quent bona fide holder thereof for a valuable consideration, 
 without notice, notwithstanding the consideration upon 
 which lie has so issued or passed it has, as between Ijimself 
 and the person to whom he originally delivered it, entirely 
 fiiiled.2 
 
 § 492. In the next place, the drawer of a Bill of Exchange 
 is liable to payment thereof, only upon the condition that it 
 has been duly presented for payment at its maturity and dis- 
 honored, and he has received due notice of the dishonor.* 
 And, in either case, it makes no difference whether he has 
 suffered any loss or injury thereby or not.^ In case of a 
 Check, the drawer is treated as in some sort the principal 
 debtor, and he is not discharged by any laches of the holder 
 in not making due presentment thereof, or in not giving him 
 notice of the dishonor, unless he has suffered some loss or 
 injury thereby, and then only ipro tanto.^ 
 
 § 493. And this leads us to the consideration of the true 
 nature and extent of the rights and duties of the holder of a 
 Check, and of the liabilities of the drawer and of the indorser 
 
 day, the bank stopped payment ; it was held, that the master was not 
 guilty of laches, ia not presenting the Notes before the bank stopped on 
 Saturday." 
 
 ' Ibid. 
 
 ' Boehm v. Sterling, 7 Term, 423 ; Chitty on Bills, ch. 11, pp. 546, 547 
 (8th edit.) ; Bayley on Bills, ch. 5, § 3, p. 164 (5th edit.). 
 
 " Ante, §§ 198, 201. 
 
 * Ante, § 299. 
 
 ' 3 Kent, Lect. 44, p. 104, note (5th edit.) ; Gruger v. Armstrong, S 
 John. Cas. 5 ; Conroy v. Warren, 3 John. Cas. 259 ; Murray v. Judah, 6 
 Cowen, 490 ; Mohawk Bank v. Broderick, 10 Wend. 306 ; Little ». Phenix 
 Bank, 2 Hill, 425, 428, 429 ; Pack v. Thomas, 13 S. 8e M. 11 ; post, §§ 497, 
 498 ; Harbeck v. Craft, 4 Duer, 122. 
 
CHAP. XI.] CHECKS ON BANKS AND BANKERS. 681 
 
 or transferrer of the same. And first, the rights and duties 
 of the holder in respect to the drawer. And here the gen- 
 eral rule is, that the holder, in order to charge the drawer in 
 case of a dishonor, is bound to present the same for payment 
 within a reasonable gtime,^ and to give notice thereof to the 
 drawer within a like reasonable time ; otherwise the delay is 
 at his own peril.^ [But this is to be understood of cases where 
 the drawer has funds in the bank, when his Check is drawn ; ^ 
 for if jiot, and the Check be payable instantly, the holder 
 may sue the drawer, without any presentment.*] What is a 
 reasonable time will depend upon circumstances, and will, in 
 many cases, depend upon the time, the mode, and the place 
 of receiving the Check, and upon the relations of the parties 
 between whom the question arises.^ If the payee, or other 
 holder of the Check, receives it immediately from the drawer, 
 in the same town or city where it is payable, he is bound to 
 present it for payment to the bank or bankers, at furthest, on 
 the next succeeding secular day after it is received, before 
 the close of the usual banking hours.^ He may, however, 
 
 ' [Veazie Bank v. Winn, 40 Maine, 60 ; Kelley u. Brown, 5 Gray, 108. 
 In this case it was held that evidence was inadmissible that such a check 
 was intended by the parties as evidence of money lent, and was not in- 
 tended to be presented to the bank for payment.] 
 
 ' 3 Kent, Lect. 44, pp. 88, 91 (5th edit.) ; Chitty on Bills, ch. 8, pp. 246 - 
 248; Id. ch. 9, pp. 412, 416, 418, 420; Id. ch. 11, pp. 546, 547 (8th edit.) ; 
 Camidge v. Allenby, 6 B. & C. 373 ; Taylor v. Young, 3 Watts, 343 ; Con- 
 roy V. Warren, 3 John. Cas. 259 ; Boehm v. Sterling, 7 Term, 430 ; Thonl- 
 son on Bills, ch. 6, § 1, p. 436 (2d edit.) ; ante, § 207 ; St. Johns w. Homans, 
 8 Mo. 382. 
 
 ' Fitch V. Redding, 4 Sandf. 130. 
 
 * True V. Thomas, 16 Maine, 36 ; Pack i: Thomas, 13 S. & M. 11 ; Coyle 
 V. Smith, 1 E. D. Smith, 400. 
 
 ' Bond V. Warden, 9 Jurist, 198 ; 1 CoUyer, 583. 
 
 » Veazie Bank v. Winn, 40 Maine, 60 ; Taylor v. Wilson, 11 Met. 44 ; 
 Chitty on Bills, ch. 6, p. 247 (8th edit.) ; Id. ch. 9, pp. 413, 416, 419, 420 ; 
 Id. p. 410 ; Id. pp. 377, 379 (9th edit.) ; Id. pp. 385, 386 (9th edit.) ; Bob- 
 son V. Bennett, 2 Taunt. 410; Rickford v. Ridge, 2 Camp. 537; Bodding- 
 ton V. Schlencker, 4 B. & Ad. 752 ; Bayley on Bills, ch. 7, § 1, pp.. 240 - 
 242 (5th edit.) ; Story on Bills, §§ 470, 471. Mr. Chitty, on this subject 
 
682 PEOMISSOEY NOTES. [CHAP. XI. 
 
 although he is not bound so to do, present it for payment on 
 the same day on which it is drawn or delivered to him ; but 
 he is at liberty to wait until the next succeeding day.^ 
 Where he receives the Check from the drawer in a place 
 distant from the place of payment, it vsill be sufficient for 
 him to forward it by the post to some person at the latter 
 place on the next secular day after it is received ; and the 
 person to whom it is thus forwarded will not be bound to 
 present it for payment until the day after it has reached him 
 by the course of "the post.^ If payment is not thus regularly 
 demanded, and the bank or bankers should fail before the 
 Check is presented, the loss will be the loss of the holder, 
 who will have made the Check his own, and at his sole risk, 
 
 (pp. 419, 420), says : " With respect to a Check on a banker, it is now 
 settled, that it suffices to present it for payment to the banker at any time 
 during banking hours (in London, five o'clock) on the day after it is re- 
 ceived, and that no laches can be imputed to the holder in not presenting 
 it for payment early in the morning of the second day, although the bankr 
 ers paid drafts on them until four o'clock in the afternoon, and then stopped 
 payment. And where a person in London received a Check upon a Lon- 
 don banker, between one and two o'clock, and lodged it soon after four 
 with his banker, and the latter presented it between five and six, and got 
 it marked as a good Check, and the next day, at noon, presented it for pay- 
 ment at the clearing-house, the Court held, that there had been no unrea- 
 sonable delay, either by the holder, in not presenting it for payment on the 
 first day, which he might have done, or by his banker in presenting it at the 
 clearing-house only on the following day at noon ; it being proved to be the 
 usage among such bankers, not to pay Checks presented by one banker to 
 another after four o'clock, but only to mark them, if good, and to pay them 
 the next day at the clearing-house. If a Check on a banker be delivered 
 to a person at a place distant from the place where it is payable, it will 
 suffice to forward it by post or otherwise to some person residing at the lat- . 
 ter [place], on the day after it is received, and it will suffice for him to pre- 
 sent it on the third day. And it has been holden, that a London banker, 
 who receives a Check by the general post, is not bound to present it for 
 payment until the following day.'' See also Chitty on Bills, ch. 6, p. 247 
 (8th edit.) ; Id. eh. 11, pp. 546, 547; Alexander v. Burchfield, 7 M. & G. 
 1061. 
 
 ' Ibid. 
 
 ' Ibid.; Moule y. Brown, 4 Bing. (N. C.) 266; Chitty on Bills, ch. 9, pp. 
 416, 417 (8th edit.) ; Veazie Bank v. Winn, 40 Maine, 60. 
 
CHAP. XI.] CHECKS ON BANKS AND BANKERS. 683 
 
 by his laches.i [But if the bank continue solvent, and no 
 damage arises from the delay in the presentment, the drawer 
 continues liable ; a Check differing in this respect from a 
 Bill of Exchange.2] The reason of this strictness is said to 
 be, that a Check, unlike a Bill of Exchange, is generally de- 
 signed for immediate payment, and not for circulation ; and 
 therefore it becomes tlie duty of the holder to present it for 
 payment as soon as he reasonably may ; and, if he does not, 
 he keeps it at his own peril.* 
 
 § 494. Where the holder does not receive the Check imme- 
 diately from the drawer, but through a succession of subse- 
 quent holders after the first, then, in case of a dishonor 
 thereof, the drawer will not be bound beyond the period of 
 time for which he would be bound to the first holder.* The 
 reason is, that which has just been assigned, that the drawer 
 does not issue the Check for general circulation, and there- 
 fore he is not, by implication, bound to allow a prolonged 
 circulation thereof at his own risk, for the sole benefit of the 
 original holder, who chooses to put it into general circular 
 tion. If, therefore, in the intermediate time, the bank or 
 bankers should fail in business, and would have paid the 
 Check if it had been presented in due season, the loss must 
 be borne by the holder, and not by the drawer.^ 
 
 [§ 494 a. In the second place, as to the rights of the 
 holder, or indorsee, against the drawee. It has been held, 
 where a bank, on which a check was drawn, kept the same 
 for twenty-four hours, and then returned it not good, that the 
 
 ' Alexander v. Burchfield, 1 Carr. &. Marsh. 75 ; 3 Scott, N. E. 555 ; 7 
 M- & Gr- 1061 ; Down v. Hailing, 4 B. & C. 330, 333 ; Chitty on Bills, ch. 9, 
 pp. 419, 420 (8tli edit.) ; Id. ch. 4, pp. 546, 547 ; East River Bank v. Ged- 
 ney, 4 E. D. Smith, 582. 
 
 ' Robinson v. Hawkesford, 9 Q. B. 52 ; Mullick v. Eadakissen, 28 Eng. 
 Law & Eq. 94. 
 
 » Per Bayley, J., in Down v. Hailing, 4 B. &. C. 333. 
 
 * Chitty on Bills, ch. 9, p. 421 (8th edit.) ; Id. ch. 9, p. 387 ; Boehm 
 V. Sterling, 7 Term, 423. 
 
 ' Chitty on Bills, ch. 9, p. 421 (8th edit.). 
 
684 PROMISSORY NOTES. [CHAP. Xt 
 
 mere retention did not constitute an acceptance on.tlie part 
 of tlie bank upon the ordinary principles of the Law Mer- 
 chant.^ And a Clieck on a bank, certified to be good by the 
 paying teller thereof, is good against such bank in the hands 
 of a subsequent bona fide holder for value, although the 
 drawer had not sufiicient funds in the bank to meet the 
 Check when it was drawn and certified, and although the 
 teller, so certifying, did so in violation of his duty ; his 
 authority to certify being limited to cases where the drawer 
 had sufficient funds in the bank.^ In Massachusetts, it has ■ 
 been held that the teller of a bank, as such, has no authority 
 to certify that a check is good, so as to bind the bank to pay 
 the amount thereof to any person who may afterwards pre- 
 sent it ; and a usage for such teller so to certify a Check as 
 to enable the holder to use it at his pleasure, was declared 
 void.^] 
 
 • Overman v. Hoboken City Back, 2 Vroom, 563. 
 
 ' Farmers & Mechanics' Bank v. Butchers & Drovers' Bank, 4 Duer, 219 ; 
 2:E. P. Smith, 125; 4 Kernan, 623. And see Willets v. Phenix Bank, 2 
 Duer, 121. 
 
 » [Mussey v. Eagle Bank, 9 Met. 306. Hubbard, J. said : " Has the tell- 
 er of a bank an original, inherent, implied power to certify Checks as good, 
 by virtue of his office ? Or, in other words, has the teller of a bank an 
 inherent power to bind the bank to the payment of any given sum of 
 money, at a future time, to any person who shall produce a Check, which 
 he has, by writing upon it the word ' good,' in fact accepted to pay? Be- 
 cause, unless the word ' good ' carries with it binding evidence of the fact 
 that the money is in the bank to meet that particular Check, and that it 
 will be paid to the bearer at any time when it is presented, it is of no practi- 
 cal utility. It will amount to no more than this, viz. that, at the moment 
 of presentment, the Check is good, and will be paid, if then handed in ; 
 but not that it will continue good two hours after, if, not being offered, 
 other Checks of the same drawer are presented^^to the amount of his de- 
 posit in the bank. 
 
 " The office of the teller is implied in the word used to designate it, — to 
 tell or count the moneys of the bank, which are received or paid out. The 
 office is often divided into two branches, that of receiving teller and of pay- 
 ing teller, where the business of the bank is large, and the duties cannot 
 conveniently be united in one person. When united, the duty of the teller 
 is, to receive all moneys offered at the bank jn payment of Notes and Bills 
 
CHAP. XI.] CHECKS ON BANKS AND BANKERS. 685 
 
 § 495. In the next place, in respect to the rights aqd 
 duties of the holder against the indorser or transferrer of 
 
 previously discounted or lodged for collection, as they severally fall due, 
 and all moneys offered by customers of the bank, to be deposited to their 
 credit in account, whether arising from moneys brought by them to the 
 bank, or the proceeds of discounts made for them ; to pay the Checks of 
 depositors, as the money is, from time to time, drawn out, or for Notes dis- 
 counted ; and to redeem the Bills of the bank with specie, when the same 
 is demanded. This is his official employment ; and, in the discharge of 
 these duties, he is regularly to account for the moneys he has received and 
 paid out, not only to prevent mistakes, but to charge him when short or 
 delinquent ; and he is also made responsible for the payment of a Check, 
 when the drawer has not a like amount to his credit, unless he applies to 
 the bookkeeper for information as to the state of the drawer's account ; and 
 then, if an over-payment is made, through the mistake or fault of the book- 
 keeper, he, and not the teller, is responsible for the loss. And when Checks 
 on other banks are received in payment, or on deposit (as is the usage 
 among the banks in the city), it is made his duty to attend to their collec- 
 tion by a given hour of the day. These are the powers and duties usually 
 assigned to the office of the teller ; and they are plain and explicit. They 
 relate to the direct receipt or payment of moneys, and to a true and ac- 
 curate accounting for such receipts and payments. His duties respect the 
 daily cash transactions of the bank, and they do not relate directly to the 
 credits given by the bank to its customers, or borrowers, on the loan of its 
 funds. His office is not confounded with that of the discount clerk, or the 
 bookkeeper ; but his daily minutes, and the checks paid by or received by 
 him, are handed to the bookkeeper, for him to make the proper entries, by 
 which the concerns of the bank may be known when tested by the teller's 
 cash on hand. 
 
 " In these powers and duties, thus conferred upon the teller, and to be 
 exercised by him in the discharge of the appropriate functions of his office, 
 there is no inherent, original power, expressly conferred, to enable him to 
 certify that the Checks of the depositors at the bank will be good, when 
 presented for payment, at some future time ; nor is such power incident to 
 or necessary to the faithful discharge of any of his duties. Powers, which 
 are neither incidental nor necessary, are not to be implied, when the rights 
 of others are thereby involved.' The power in question is, in fact, not only 
 not implied as incidental to the proper performance of the duties of the 
 office, but the teller is not a regular certifying officer, as to the state of any 
 depositor's account ; for he has not the means of certifying it. Nor is he 
 responsible for the bookkeeper's statement. Nor does such power exist in 
 the bookkeeper ; for, during the business hours of the day, he is not the 
 receiver of all the Checks drawn by the depositors, as they are paid at the 
 bank, nor is he answerable for the amount, until handed to him for entry 
 
PROMISSORY NOTES. [CHAP. XI. 
 
 tlje Check. Where a Check is negotiable, and passes by 
 indorsement, or by mere delivery, the same rule applies be- 
 in his books. Such certificate would, in fact, require the names of both 
 the officers, that the drawer's account was good for the face of the Check, 
 before either of them could have evidence of the fact to be certified. Nor 
 could they be secure from difficulty arising out of the constant pressure of 
 business, without actually charging the Check thus certified ; and, even if 
 charged, they would be without a voucher, till the Check should be handed 
 in for payment. 
 
 " Such a power of certifying is, in fact, a power to pledge the credit of 
 the bank to its customers ; a power which, by the constitution of a bank, 
 can alone be exercised by its president and directors, unless specially dele- 
 gated by them ; and consequently it cannot be implied as a resulting duty 
 or authority in any individual officer. Evidence of usage, therefore, can 
 imply no original, inherent, and implied power in tellers thus to certify, 
 however it may bear on the question of binding a bank by the allowance of 
 such a usage. 
 
 " 2. It is contended that a usage -for tellers of banks thus to certify that 
 Checks are good, and such usage being known to the business community, 
 is a usage binding on banks, and that the holder of a Check so certified 
 may recover it from the bank on which it is drawn ; and that proof of a 
 usage, on the part of this bank and the other banks of the city, to allow 
 certificates of deposit to be certified by their respective tellers, is evidence 
 in support of a usage of such tellers to certify Checks, or of their authority 
 so to do. 
 
 " Upon this point, the judge, at the trial, instructed the jury, that if any 
 such general usage existed, and if it was a good usage, the defendants would 
 be bound by it ; but whether the usage was good or not was matter of law 
 for the Court to decide, and was not a question for the jury ; and that a 
 usage to issue certificates of deposit was not evidence to prove a usage of 
 certifying Checks. 
 
 " In examining the evidence which was offered to the jury, and which is 
 reported at some length, we are well satisfied that no such general usage 
 has been proved ; but that, in some of the banks, a practice has existed for 
 one of the officers of the bank, and generally the- teller, to certify that the 
 Check of a depositor is good, when it was necessary for him to use his 
 check at another bank, after bank hours, to prevent the protest of a Note ; 
 in which case his Check would, of course, be presented for payment, the 
 next morning, by the bank receiving the same ; or occasionally, when a re- 
 mittance was to be made to a correspondent at a distance ; and sometimes, 
 for the convenience of the officers, where the money was needed, to be ■ 
 paid at another bank, and the amount of the Check was large, to save the 
 labor of counting the bills. The cases vary from the one at bar. They 
 were evidently those of special convenience for a particular occasion, and 
 
CHAP. XI.] CHECKS ON BANKS AND BANKERS. 687 
 
 tween the immediate parties to the transfer, as applies be- 
 tween the drawer and the original payee of the Check.i n 
 
 which, from the uprightness of the officers and the solvency of the parties, 
 worked no mischief. But even these cases were neither proved to be gen- 
 eral, nor applicable to all the banks, so as to establish a usage. The case 
 at bar, on the other hand, was the giving of large credits to the persons 
 drawing the Checks, to enable them to borrow money on the strength of 
 the certificates. In some banks. Checks were occasionally certified for cus- 
 tomers, to be used by them, at their convenience, where the funds were in 
 the bank to meet them ; but the practice, as proved, was of such limited 
 extent as not to bear on the question of usage. 
 
 " But if a usage had been proved of the certifying, by the teller, that the 
 Check is good, to enable a holder to use it afterwards, at his pleasure, we 
 are clearly of opinion that such a usage would be bad, and could not be 
 upheld. It would give to bank Checks, which are intended for immediate 
 use, and are the substitutes for specie, in the ordinary transactions of busi- 
 ness, the character of Bills of Exchange, payable to the bearer, the bank 
 being acceptor, and payable at an indefinite time. It would lead to loans 
 to favored individuals, without the usual security ; it would substitute Checks 
 for cash, in the hands of tellers who receive them, and would confer the 
 power upon a single officer to pledge the credit of the bank by the mere 
 writing of his name ; a power never contemplated by the legislature, nor 
 intended to be conferred by the stockholders. It would expose the teller 
 to the frauds of a bookkeeper, and both of them to the temptations of un- 
 principled and greedy men, who might, under various pretences, procure 
 their Checks to be thus certified, in the first instances, when their deposits 
 were good, and afterwards, when there was no balance to their credit; 
 allowing interest, as a bonus for the certificate, to the certifying officer', who 
 would afterwards receive such Checks as cash. And the present case well 
 illustrates the hazards and the evils to which banking companies and their 
 officers are exposed by the allowance of such a practice. 
 
 " It has been pressed, in the argument on the subject of usage, that this 
 certificate of ' good,' on the Check, is but another form of the exercise of a 
 usage, so common in banks, to grant, by the teller, a certificate of deposit 
 of money to the credit of a third person. But we are of opinion, with the 
 judge before whom the trial was had, that usage of the one will not support 
 the practice of the other. The two practices, while having the appearance 
 of resemblance, and although one may be used for the same purpose as the 
 other, in the form of a remittance, are, in their character, essentially dis- 
 tinct. A certificate of deposit is regularly issued only when money is actu- 
 
 ' Chitty on Bills, ch. 9, pp. 319-421 (8th edit.); Mohawk Bank v. 
 Broderick, 10 Wend. 304 ; S. C, 13 Wend. 133 ; Veazie Bank v. Winn, 
 40 Maine, 60; Taylor v. Wilson, 11 Met. 52. 
 
688 PROMISSORY NOTES. [CHAP. XI. 
 
 must, if payable in the same town or city where the transfer 
 is made, be presented for payment before the close of the 
 bank hours of the next succeeding secular day ; and, if he 
 receives it at a distance from the place of payment, he must 
 forward it for payment by the post of the next succeeding 
 secular day, to some person at that place, for payment.^ 
 And if the holder duly presents the check, and it is dishon- 
 ored, the holder must give notice to the indorser, and he may 
 then have an action against him as against the indorser of a 
 
 ally paid into a bank, for the benefit of a third person, and is placed to his 
 credit ; by means of which certificate, and on the return thereof, he can 
 draw for the money deposited ; or, if the money is not actuallj' deposited, 
 but the Check of the party procuring the certificate is given, such Check 
 is immediately charged to the account of the drawer. This is a transaction 
 in which money is actually paid for the certificate ; and the certificate is 
 no more than entering the amount in the depositor's bank-book. The dif- 
 ference is, that the credit is given to the correspondent of the depositor, 
 and not to the depositor himself. But where a Check is certified, as in the 
 case at bar, no money is deposited, no Check is received, and the teller can 
 only rely on the declaration of the bookkeeper that the Check is good. 
 The transaction enters not into the books of the bank ; is not necessarily 
 known by its higher officers ; and yet, it is contended, the bank is bound by 
 the transaction. 
 
 " In examining the evidence, it is apparent that the defendants have 
 never sanctioned the practice of authorizing their teller to certify Checks 
 as good, in order to their being used by the drawer to raise a credit with 
 third persons. And, admitting it to be proved (though of that we are not 
 satisfied), that the cashier, in one instance, knew that the teller certified a 
 Check of Cook & Co. as good, and did not prohibit him, still the teller hav- 
 ing no legal right, either express or implied, thus to obhgate the bank, the 
 knowledge of the cashier could not affect the defendants.- Such an acqui- 
 escence on the part of the cashier, whether the consequence of haste, or 
 ignorance, or improper motive, or a mistaken view of his own powers, could 
 not create a contract between the bank and the holder of any other Check 
 thus certified. 
 
 " What the legal consequence would be, if the Check was good at the 
 time of such certificate, and was certified with the knowledge and acqui- 
 escence of the cashier, and was taken, hona fide, on the faith of such cer- 
 tificate so approved, we are not now called upon to express an opinion."] 
 
 • Ante, § 493 ; Chitty on Bills, ch. 6, p. 247 (8th edit.) ; Id. ch.9, pp. 414, 
 416 - 421 ; Id. ch. 11, p. 547 ; Story on Bills, §§ 472-475. 
 
CHAP. XI.] CHECKS ON BANKS AND BANKERS. 689 
 
 Note or Bill of Exchange. This was formerly doubted, but 
 it is now established as the law.i 
 
 § 496. The same rule equally applies as between the in- 
 dorser or transferrer of the Check and any subsequent re- 
 mote holder ; for, although each party may be allowed a day, 
 as between himself and the party from whom he has received 
 the Check, to make a presentment for payment, and give 
 notice of the dishonor ; yet this does not authorize a succes- 
 sion of subsequent holders to keep the instrument day after 
 day in circulation, so as to retain the liability of all the prior 
 parties thereto, upon any ultimate failure of the drawee to 
 pay the Check. The drawer and every holder is liable to 
 every subsequent holder only upon due presentment and dis- 
 honor of the Check, within the time for which he would be 
 liable, if the Check had been presented by the party imme- 
 diately claiming from or under him.^ 
 
 § 497. But although the drawer of a Check (and the in- 
 dorser or transferrer of a Check is ordinarily in the same 
 predicament) is not fixed with an absolute responsibility to 
 pay the Check upon its dishonor, unless it has been presented 
 
 ' Keene v. Beard, 8 C. B. (N. S.) 372; 23 Law Rep. 171. 
 
 * Chitty on Bills, ch. 9, p. 387 (8th edit) ; Id. p. 421. See Mohawk Bank 
 V. Broderiek, 10 Wend. 306 ; Elting v. Brinkerhoff, 2 Hall, 4fl3 ; Little v. 
 Phenix Bank, 2 Hill, 425, 429 ; Murray v. Judah, 6 Cowen, 490; Thomson 
 on Bills, ch. 6, § 1, p. 436 (2d edit.); Story on Bills, §§ 472, 473. Mr. 
 Chitty (p. 421) says : " It will be observed, that this rule, allowing the 
 party receiving a Bill, Note, or Check, payable on demand, until the next 
 day to present it for payment, will not enable a succession of persons to 
 keep such instrument long in circulation, so as to retain the liability of all 
 the parties, in case the same should ultimately be dishonored by the maker 
 of the Note or drawee of the Check. And though each party may be 
 allowed a day, as between him and the party from whom he received a, 
 Check, it would be otherwise as to the drawer, if the banker should, dur- 
 ing a succession of several days, fail, and would have paid, if the Check 
 had been presented on the day after it was drawn ; a Check being an in- 
 strument, not in general intended by the drawer to be long in circulation, 
 and in that respect differing from a country banker's Note, which is known 
 to all parties to have been intended to be in circulation, and not so 
 promptly presented for payment as a Check." 
 44 
 
690 PROMISSORY NOTES. [CHAP. XI. 
 
 for payment on the next day after it is received, or unless 
 sent by the post of the next day, according to and under the 
 circumstances already mentioned ; ^ yet this doctrine is to be 
 received with its proper qualifications. Strictly speaking, it 
 only applies, where, in the intermediate time between the 
 drawing of the Check and the presentment thereof for pay- 
 ment, there has been a change of circumstances, materially 
 affecting the rights and interests of the drawer, in respect to 
 the bank or banker on whom the Check is drawn. In such 
 a case, the rule, that the Check must be presented within a 
 reasonable time, is applied ex rigore legis, and is interpreted 
 to mean, the shortest period within which, consistently with 
 the ordinary employments and duties of commercial busi- 
 ness, it is practicable to perform the duty ; and the analogy 
 of the time allowed in cases of the presentment of Bills of 
 Exchange, and notice of the dishonor thereof, is adopted as 
 reasonable and appropriate.^ But the drawer is in no case 
 discharged from his responsibility to pay the same, unless he 
 has suffered some loss or injury, by the omission or neglect 
 to make such presentment, and then only pro tanto? Thus, 
 for example, if the bank or banker has failed, or become 
 bankrupt, he will be discharged to the extent of the loss or 
 injury he has sustained thereby. 
 
 § 498. But where no change of circumstances has occurred 
 in the intermediate time between the drawing and present- 
 ment' of the Check, materially affecting the rights or interests 
 of the drawer in respect to the bank or bankers, there that 
 analogy is abandoned ; and the same rule is adopted, as to 
 
 » Ante, § 493. 
 
 » Anle,%% 200, 201, 207, 208, 319-328; Story on Bills, §§ 324, 382; 
 Chitty on Bills, ch. 6, pp. 246, 247 (8th edit.) ; Id. ch. 9, p. 414 ; Id. ch. 
 11, p. 547. 
 
 ' 3 Kent, Lect. 44, p. 104, note (Sth edit.) ; Cruger v. Armstrong, 3 
 John. Cas. 5 ; Conroy v. Warren, 3 John. Cas. 259 ; Murray v. Judah, 6 
 Cowen, 490; Mohawk Bank v. Broderick, 10 Wend. 306; Little ». 
 Phenix Bank, 2 Hill, 425, 428, 429 ; Serle v. Norton, 2 Mood. & Rob. 
 401 ; ante, § 492. 
 
CHAP. XI.J CHECKS ON BANKS AND BANKERS. 691 
 
 the admeasurement of the reasonable time, as is adopted in 
 cases of guaranty.^ Hence it is (as we have already seen^) 
 that the drawer will at all times be liable to pay the same, if 
 the holder can show (for the onus probandi is thrown on 
 him^) that the drawer has sustained, and can sustain, no loss 
 or damage from the omission to demand payment at an ear- 
 lier date of the bank or banker, on whom the Check is 
 drawn.* Thus, if the bank or banker still remains in good 
 credit, and is able to pay the Check, the drawer will still 
 remain liable to pay the same, notwithstanding many months 
 have elapsed since the date of the Clieck, and before the 
 presentment for payment, and notice of the dishonor. So, if 
 the drawer, at the date of the Check, or at the time of the 
 pi-esentment of it for payment, had no funds in the bank or 
 banker's hands, or if, after drawing the Check, and before its 
 presentment for payment and dishonor, he had withdrawn 
 his funds, the drawer would remain liable to pay the Check, 
 notwithstanding the lapse of time. The reason is, that, if he 
 drew the Check without having any funds, he had no right 
 to expect payment of the Check, and his conduct amounted 
 to a fraud and imposition upon the payee ; and he could 
 suffer no loss or damage on account of the dishonor, or, at 
 least, none which might not be properly attributed to his own 
 fault.^ And if he originally had funds, and fiad since with- 
 drawn them from the bank or banker's, he was himself guilty 
 of a manifest wrong, in thus subtracting the very funds 
 already appropriated to the payment of the Check.^ The 
 
 1 Ante, §§ 284, 285, 460 ; Little v. Phenix Bank, 2 Hill, 425 ; 3 Kent, 
 Lect. 44, p. 88 (5tli edit.). 
 
 ' Ante, § 492. 
 
 ' Little V. Phenix Bank, 2 HiU, N. Y. 425. 
 
 * 3 Kent, Lect. 44, p. 88 (5th edit.) ; Little v. Phenix Bank, 2 Hill, 425 ; 
 Cruger v. Armstrong, 3 John. Cas. 5 ; Conroy v. Warren, 3 John. Cas. 
 259 ; Hoyt v. Seeley, 18 Conn. 353 ; Daniels v. Kyle, 1 Kelly, 304. 
 
 ' Conroy v. Warren, 3 John. Cas. 259 ; Murray v. Judah, 6 Cowen, 484 ; 
 Eichelberger v. Finley, 7 Harr. & John. 381. 
 
 ' Conroy v. Warren, 3 John. Cas. 259 ; Murray v. Judah, 6 Cowen, 484 ; 
 Eichelberger v. Finley, 7 Harr. & John. 381 ; Franklin v. Vanderpool, 1 
 
692 PROMISSORY NOTES. [CHAP. XI. 
 
 like doctrine will (as has already been suggested) ordinarily 
 apply to the case of an indorser or transferrer of a Check, in 
 respect to subsequent indorsers.^ 
 
 Hall, 78 ; Hoyt v. Seeley, 18 Conn. 353. In the Matter of Brown, 2 
 Story, 5.16, the Court said : " The like distinction between Checks and Bills 
 of Exchange was stated by Mr. Justice Sutherland, in Murray v. Judah, 6 
 Cowen, 490. He there said : ' As a general rule, therefore, a Check is not 
 due from the drawer until payment has been demanded of the drawee, 
 and refused by him. As between the holder of a Check and an indorser 
 or third person, payment must be demanded within a reasonable time. But 
 as between the holder and maker, or drawer, a demand at any time before 
 suit brought is sufficient, unless it appear that the drawee has failed, or the 
 drawer has in some manner sustained injury by the delay.' The same 
 doctrine has been fully recognized in other cases. It is a natural, even if 
 it be not a necessary consequence of the fact, that a Check is an appropria- 
 tion of the funds of the drawer, in the hands of the bank or banker, to the 
 amount of the Check ; and consequently, the drawer has no right to with- 
 draw the same. And if the drawee, upon the presentment refuses to pay 
 the Check, because he has no funds, then the drawer is not injured ; and if 
 he has funds and refuses to pay, then, if the bank is still in good credit, as 
 
 ' the drawer has sustained, and can sustain, no loss, there is every reason to hold 
 him liable therefor. Every Check is prima facie presumed to be given for . 
 value received by the drawer ; and if, by reason of the want of due pre- 
 sentment, or want of due notice of the dishonor, he is to be totally exoner- 
 ated, he pockets both the original consideration and his funds in the hands 
 of the bank or banker. In such a case, can it be said, with truth or justice, 
 that he is to be enriched at the expense of the holder of the Check ? Or, 
 that he shall not be deemed to hold the money, as money had and received 
 for the use of the holder, either because he had no funds in the bank, or 
 because he still retains those fundis, appropriated to the use of another, for 
 his own use? I am aware thatMf. Justice Cowen, in his elaborate opinion 
 in Harker v. Anderson, 21 Wend. 372, has endeavored to support the 
 opinion, that a Check is to be deemed to all essential purposes to be a 
 Bill of Exchange, and, therefore, that all the rules applicable to the latter 
 are of equal force in relation to the former. Notwithstanding the array of 
 authorities, so fully and learnedly brought forth by him in support of that 
 opinion, my own judgment is, that they wholly fail of the purpose. It ap- 
 
 ' pears to me to be a struggle, on the part of the learned Judge, to subject 
 all the doctrines applicable to all negotiable instruments to some common 
 and uniform standard. I hope and trust that such an effort will never 
 prevail. In my judgment, it is far better that the doctrines of commercial 
 jurisprudence should, from time to time, adapt themselves to the common 
 
 ' Ante, § 497. 
 
CHAP. XI.J CHECKS ON BANKS AND BANKERS. 693 
 
 § 498 a. A check so far differs from a Bill of Bxcliange or 
 Note, that its payment may be countermanded by the drawer 
 
 usages and practices and understanding of merchants, and vary with the 
 varying courses of business, so as at once to subserve public convenience, 
 and to mould themselves into the common habits of social life, rather than 
 to assume any artificial forms, or to regulate, by an inflexible standard, the 
 vrhole operations of trade and commerce. As new instruments arise in the 
 course of business, they should be constructed so as to meet and accomplish 
 the very purposes for which they were designed by the parties, and not to 
 defeat them. Checks are as well known now as Bills of Exchange, as a 
 class of distinct instruments in commercial negotiations ; and he who seeks 
 to make them identical in all respects -with Bills of Exchange, may unin- 
 tentionally be introducing an anomaly, instead of suppressing one. Upon 
 the whole, my judgment is precisely in coincidence with that of Mr. Chan- 
 cellor Kent, already cited on this subject. I hold that the instruments in 
 the present case are strictly Checks, and subject to all the incidents there- 
 of; that they were payable on the very day on which payment was upon 
 theiT face demandable, without any days of grace ; and that both parties 
 intended throughout that they should be treated as Cheeks, and that they 
 should be paid by the bank on the very day designated, or at any reason- 
 able time thereafter. But, assuming, for the purposes of the argument, that 
 this is not entirely correct (which I maintain, however, to be entirely cor- 
 rect), still, in this case, in my judgment, the Checks are a good debt 
 against the bankrupt. And this for two reasons, either of which would be 
 conclusive. In the first place, it is manifest that these Checks were drawn 
 without the drawer having any right to draw. He had no funds in the 
 bank at the time when the Checks were due and payable, or, indeed, for 
 aught that appears, at any time since, to discharge them or either of them. 
 Now, in the case of a Check, I take it to be clear, that the drawer impliedly 
 engages, that, at the time when the Check is due and payable, he has, and 
 will have then, and at all times thereafter, sufiicient funds in the bank to 
 pay the same upon presentment ; and, by the draft, he appropriates those 
 funds absolutely for the use of the holder. Now, the bank is not bound to 
 pay unless it is in full funds ; and it is not obliged ito pay, or to accept to 
 pay, if it has partial funds only ; for it is entitled to the possession of the 
 Check on payment ; and, indeed, in the ordinary course of business, the 
 only voucher of the bank for any payment is the production and receipt of 
 the Check, which the holder cannot safely part with, unless he receives full , 
 payment, nor the bank exact, unless under the like circumstances. The 
 holder is not bound to accept part payment, even if the bank is willing to 
 pay in part ; for he has a claim to the entirety. Now, the circumstance, 
 that the drawer had no right to draw these Checks, and had no funds there 
 at anv time to pay the same, seems to me decisive, that he has no right to 
 complain of the want of due presentment, or of the want of due notice. 
 
PROMISSOEY NOTES. [CHAP. XI. 
 
 before it is accepted or paid by the bank.^ And so the death 
 or insolvency of the drawer is in the nature of a countermand 
 
 Not of the want of due presentment ; for the Checks were demandable, 
 not merely on the days on which they were respectively due, but, as against 
 him, at any reasonable time afterwards ; and hp ought to have had funds 
 at all times in the bank, to pay the Checks after they were due. Not of 
 the want of notice ; for as he never had any funds in the bank to pay the 
 Checks, he had no right to believe they would be paid, and, strictly speak- 
 ing, his conduct was an actual or constructive fraud upon the holders. In 
 both views the case of Conroy v. Warren, 3 John. 259, is a direct authority 
 to the purpose. And it may be further added, that it was held in that case, 
 in which I entirely concur, that, if the drawer sustains no damage, by want 
 of due presentment or due notice, and the non-payment of Checks arise 
 from his own default, or from his want of funds, he is liable to the holder to 
 the full amount of the Checks. If the bank had funds, and had failed in 
 the intermediate' time, that might have furnished a diflferent ground for 
 defence. It would then be like the case of a Note, or acceptance, payable 
 at a bank, where the bank had, at the time, funds to pay, and had failed, 
 after it became due, and there had not been a due presentment for pay- 
 ment. It appears to me equally clear, upon principle and authority, that 
 the drawer is liable in all cases for the dishonor of Checks, -whether they 
 have been duly presented or not, or whether he has had due notice of the 
 dishonor or not, in all cases where he has sustained no damage on account 
 of the omission. But it is said, that in cases of Bills, due presentment and 
 due notice are necessary, whenever the drawer has any funds in the hands 
 of the drawee ; and the same reasoning applies to cases of Checks. Now, 
 I deny both the premises and the conclusion. In the first place, as I under- 
 stand it, the true doctrine is this ; that if the drawer has a right to draw, in 
 the belief that he has funds, or in the expectation that he shall have funds, 
 at the time of the presentment for acceptance, by reason of arrangements 
 with the drawee, or putting his funds in transitu ; then, and in such cases, 
 he is entitled to due notice. But according to the doctrine now contended 
 for, if the drawer knows that he has but one dollar in the hands of the 
 drawee, and he has no expectation of any more being added, and has no 
 right to believe that a Bill for more will be honored, he may, nevertheless, 
 draw a Bill on the drawee for ten thousand dollars ; and if it is dishonored 
 (as he knows it will be) he is still entitled to strict notice ; whereas, if he 
 had not the one dollar in the drawee's hands, he would not be entitled to 
 any notice at all. Now, I do not understand the law to involve any such 
 strange anomaly, not to call it an absurdity. In each case, the same reason 
 
 ' Dykers u. Leather Manufacturing Bank, 11 Paige, 612; Purchaser. 
 Mattison, 6 Duer, 587 ; Lovett v. Cornwell, 6 Wepd. 369 ; S. C, 1 Hall, 56 ; 
 Jacks V. Darrin, 3 E. D. Smith, 557. 
 
CHAP. XI.] CHECKS ON BANKS AND BANKERS. 695 
 
 of the jjayment, and the bank ought not to pay ; ^ but if the 
 bank pays without notice of the death it is said to be a good 
 payment.^ 
 
 § 499. There is a class of Checks, which has recently 
 sprung up in our commercial communities, of a peculiar 
 character, and known as Memorandum Checks. In their 
 
 applies; the draft is a fraud upon the holder; and in each case a meditated 
 fraud shall not be sheltered behind a rule intended to protect the innocent 
 and trustworthy. The two cases relied on at the bar, to establish the oppo- 
 site doctrine, turn upon the very considerations which I have already 
 suggested. In Hammond v. Dufrene, 3 Camp. 145, the Bill was drawn by 
 the party, having no funds at the time ; but the drawees accepted the Bill, 
 and afterwards, and before the Bill became due, the drawer paid a larger 
 sum on account of the acceptance ; and Lord Ellenborough held, that the 
 drawer was entitled to strict notice of the dishonor, when the Bill became 
 due. Why V Because the drawer had a reasonable expectation that the 
 Bill would be accepted (and it was accepted), and that it would be paid at 
 maturity by the acceptors, as he was then in advance for them to a larger 
 amount. In Thackray v. Blackett, 3 Camp. 163, the two Bills drawn were 
 accepted, and were dishonored at their maturity by the acceptors ; but due 
 notice thereof was not given to the drawer. The Bills were, in fact, drawn 
 for the accommodation of the drawer ; but before they became due, he had 
 contracted engagements on account of the acceptors, to the amount of about 
 £1,000, the Bills amounting to upwards of £3,600. Lord Ellenborough 
 held the drawer entitled to strict notice ; but it was upon the ground that 
 there was an open account between the parties, and therefore the drawer 
 could not necessarily have been aware beforehand that either of the Bills 
 ■would be dishonored ; so that the case was put upon the clear ground that 
 the drawer had a right to draw, and had a right to believe that his drafts 
 would be honored. Indeed, in cases of a fluctuating balance between the 
 parties, this may well constitute a ground upon which, without knowing the 
 exact state of the balance, the drawer may reasonably draw. And this is 
 the very ground upon which the doctrine was put, in the case of Orr v. 
 Maginnis, 7 East, 359, where the Court thought, that in cases of a shifting 
 balance, notice was necessary, because the drawer could not, or might not, 
 know, that he was drawing without any right to draw. The same doctrine 
 was upheld in Legge v. Thorpe, 12 East, 171, and was there expounded 
 upon the principles which I have stated." 
 
 ' Vernon v. Hankey, 2 Term, 113 ; Ex parte Bowness, 2 Man. & S. 479 ; . 
 Udalu. Walton, 14 M. & W. 254; Hammersley v. Purling, 3 Ves. 757; 
 Mathew v. Sherwell, 2 Taunt. 439. 
 
 ' Tate V. Hilbert, 2 Ves. Jr. 118. 
 
696 PROMISSORY NOTES. [CHAP. XI. 
 
 form they do not in general differ from ordinary Cliecks; 
 and, as to third persons, who are holders bona fide for a val- 
 uable consideration, without notice, they are affected with 
 all the legal rights and consequences of ordinary Checks. 
 But between the parties thereto they seemed designed as a 
 mere memorandum of an indebtment, generally for money 
 borrowed, and are in the nature of the common Due Bill, 
 I U. These Memorandum Checks have not, as yet, within 
 our knowledge, given rise to any important judicial decis- 
 ions. But two questions may naturally arise thereon. (1.) 
 Whether, as between the immediate parties, the Checks are 
 to be deemed presentable at all to the bank on which they 
 are drawn, before the holder has a right to demand payment 
 of the amount of the drawer. (2.) If so presentable, then, 
 within what time the holder is -bound to present them for 
 payment; whether within a reasonable time, according to 
 the general rule, or at any time, depending upon his own 
 sole option. Neither of these points seem, at present, to 
 have undergone any positive adjudication. [In a late case 
 in Massachusetts, it was attempted to be shown, by parol, 
 that a Check in the ordinary form was intended by the par- 
 ties merely as a Memorandum Check, and as evidence of 
 money lent, and not to be presented at the bank on which it 
 was drawn ; but it was held, that, as the declaration was only 
 upon an ordinary draft, or Check, and without any allegation 
 of any peculiar character to the Clieck, the evidence was 
 inadmissible, and that presentment to the bank was neces- 
 sary.i And in New York it was held, that the word 
 " Mem," written on the right-hand corner of the Check, did 
 not alter the character of the paper, and that the bank right- 
 fully paid it on presentation.^] 
 
 § 500. Before closing this work, it may be proper to say a 
 very few words in respect to bankers'. Notes, and bank-notes, 
 or as they are sometimes called, bank-bills. We have al- 
 
 ' Kelley v. Brown, 5 Gray, 108. 
 
 ' Dykers v. Leather Manfacturing Bank, 11 Paige, 612. 
 
CHAP. XI.] NOTES OF BANKS AND BANKERS. 697 
 
 ready had occasion to consider the time, within which Prom- 
 issory Notes, payable on demand, should be presented for 
 pa,yment, in order to charge the indorser or transferrer of 
 the same ; that is, that the presentment should be within a 
 reasonable time.^ But a most material distinction, appli- 
 cable to this subject, exists, or may exist, between the Notes 
 of private individuals and of persons professing to carry on 
 the business of bankers, and issuing their Notes, payable on 
 demand,, for the purposes of general currency and circula- 
 tion.^ In the latter class of cases, it is obvious that the 
 same strict rules ought not to be applied as in the former, 
 as to presentment for payment, either in respect to the 
 makers, or in respect to the subsequent holders, by whom 
 they are, or may be, passed and circulated. They are, in- 
 deed, in the ordinary course of business and trade, treated 
 (like our bank-notes) as ready cash, and accordingly so 
 circulate, whether they are made payable to order or to 
 bearer.^ Nevertheless, they are not deemed to be taken as 
 an absolute payment in cash, unless so agreed by the parties ; 
 but, if presented in due time and dishonored, the party 
 receiving them may, upon due nt)tice, recover the amount or 
 consideration for which they were taken from the payer.* 
 Even if the bankers have failed and shut up their banking- 
 house, it seems to have been thought necessary, that a pre- 
 sentment of the bank-notes should be made there for pay- 
 ment ; or, at all events, that notice should be given in due 
 ' time, and an offer to return the Notes made to the person 
 from whom they were received ; otherwise, the holder will 
 have jio remedy against him.* It has been justly said, that 
 
 ' Ante, § 207. 
 
 ' Chitty on Bills, ch. 12. p. 554 (8th edit.). 
 
 » Tassell v. Lewis, 1 Ld. Eaym. 743, 744 ; Chitty on Bills, ch. 12, p. 554 
 (8th edit.); Pickard v. Bankes, 13 East, 20; Lowndes v. Anderson, 13 
 East, 130. 
 
 ' Ibid. ; Owenson v. Morse, 7 Term, 64 ; Chitty on Bills, ch. 9, pp. 414 - 
 416 (8th edit.) ; Id. ch. 12, pp. 554, 555. 
 
 » Howe V. Bowes, 16 East, 112; S. C. in Error, 5 Taunt. 30; Sands v. 
 
698 PROMISSORY NOTES. [CHAP. XL 
 
 it is difficult to say what length of time is to be deemed 
 unreasonable for presentment thereof for payment as be- 
 
 Clarke, 8 C. B. 751 ; Camidge v. Allenby, 6 B. & C. 373 ; Henderson v. 
 Appleton, cited in Chitty on Bills, ch. 9, p. 387, note (Sth edit.) ; Id. ch. 9, 
 p. 356, note (9th edit.); Rogers u. Langford, 1 C. & M. 637; Chitty on 
 Bills, ch. 9, p. 386 (8th edit.) ; Id. pp. 417, 418; Id. ch. 9, pp. 354-356 
 (9th edit.) ; Id. p. 384. Mr. Chitty, in his notes to the last edition (the 
 9th), has given a full view of the cases above cited; and they are so in- 
 structive, that they deserve to be stated at large. Camidge v. Allenby, 6 
 B. & C. 373 ; 9 Dowl. & Ryl. 391 (Chit. J. 1319). In an action for the 
 price of goods, it appeared that the same were sold at York, on Saturday, 
 the 10th of December, 1825, and on the same day, at three o'clock in the 
 afternoon, the vendee delivered to the vendor, as and for the payment of 
 the price, certain Promissory Notes of the bank of D. & Co.. at Hudders- 
 field, payable on demand to bearer. D. & Co. stopped payment on the same 
 day, at eleven o'clock in the morning, and never afterwards resumed their 
 payments ; but neither of the parties knew of the stoppage, or of the insol- 
 vency of D. & Co.* The vendor never circulated the Not«s, or presented 
 them to the bankers for payment ; but on Saturday, the 1 7th of December, 
 he required the vendee to take back the Notes, and to pay him the amount, 
 which the latter refused. Held, under these circumstances, that the vendor 
 of the goods was guilty of laches, and had thereby made the Notes his own ; 
 and, consequently, that they operated as a satisfaction of the debt. Per Bay- 
 ley, J. i "I think that the defendant, in this case, is entitled to the judgment 
 of the Court. One short observation disposes of Warrington v. Furbor, 8 East, 
 242, and Swinyard v. Bowes, 5 M. & S. 62^ the authorities cited to show that 
 it was not necessary, in this case, to prove presentment for payment. In 
 those cases, the person insisting on the want of presentment was not a party 
 to the Bill ; but here, the defendant was a party to the Notes ; for they were 
 payable to the bearer on demand, and he was the holder of them ; and when 
 such Notes are passed from hand to hand, the person taking them must trace 
 his right through the former holder. If the Notes had been given to the plain- 
 tiff at the time when the corn was sold, he could have had no remedy upon 
 them, against the defendant. The plaintiff might have insisted upon pay- 
 ment in money. But if he consented to receive the Notes as money, they 
 would have been taken by him at his peril. If, indeed, he could show 
 fraud, or knowledge of the maker's insolvency, in the payer, then it would 
 be wholly immaterial whether they were taken at the time of sale or af- 
 terwards. Here, the Notes were given to him in payment subsequently, 
 and the question is, whether they operate as a discharge of the debt due to 
 the plaintiff, in respect of the corn. The rule as to all negotiable instru- , 
 ments is, that if they are taken in payment of a pre-existing debt, they 
 operate as a discharge of that debt, unless the party who holds the instru- 
 ment does all that the law requires to be done, in order to obtain payment 
 
CHAP. XI.] NOTES OF BANKS AND BANKERS. 699 
 
 tween the person who passes away and the person who 
 receives the same.i The only approximation to a rule, which 
 
 of them. Then the question is, what it was the duty of the plaintiff to do, 
 in order to obtain payment of these Notes '! They were intended for cir- 
 culation. But I think that he was not bound immediately to circulate 
 them, or to send them into the bank for payment, but he was bound, within 
 a reasonable time after he had received them, either to circulate them, or to 
 present them for payment. Now here it is conceded, that, if there had not 
 been any insolvency of the bankers, the Notes should have been circulated, 
 or presented for payment, on the Monday. It is clear that the plaintiff, 
 on that day, might have had knowledge that the bankers had stopped pay- 
 ment, and having that knowledge, if presentment was unnecessary, he had 
 then another duty to perform. In consequence of the negotiable nature of 
 the instruments, it became his duty to give notice to the party who paid 
 him the. Notes that the bankers had become insolvent, and that he, the 
 plaintiff, would resort to the defendant for payment of the Notes ; and it 
 would then have been for the defendant to consider, whether he could 
 transfer the loss to any other person : for, unless he had been guilty of neg- 
 ligence, he might perhaps have resorted to the person who paid him the 
 Notes. That party would, however, be discharged, if he received no notice 
 of non-payment, or of the insolvency of the bankei's, till a week after he 
 had paid them to the defendant. The neglect, therefore, on the part of the 
 plaintiff, to give to the defendant notice of the insolvency of the bankers, 
 may have been prejudicial to the defendant. The law requires that the 
 party, on whom the loss is to be thrown, should have notice- of non-payment, 
 in order to enable him to exercise his judgment, whether he will take legal 
 measures against other parties to the Bill or Note. Now here, if the Notes 
 had been returned on the Tuesday to the defendant, he might have taken 
 steps against the bankers ; and he had a right to exercise his judgment, 
 whether he would do so or not, although they had stopped, or he might 
 have had a remedy against the person who had paid him the Notes. It 
 may be hard, in some cases, that the entire loss should fall upon one indi- 
 vidual, but it is a general rule, applicable to negotiable instruments, and 
 not to be relaxed in particular instances, that the holder of such an instru- 
 ment is to present promptly, or to communicate without delay notice of 
 non-payment, or of the insolvency of the acceptor of a Bill, or the maker of 
 a Note ; for a party is not only entitled to knowledge of insolvency, but to 
 notice, that in consequence of such insolvency he will be called upon to 
 pay the amount of the Bill or Note. The case of Beeching •«. Gower, Holt, 
 315, is an answer to the whole of the argument for the plaintiff, founded 
 upon the fact, that the Notes were paid away after the bank had stopped. 
 
 • Ibid.; Mohawk Bank v. Broderick, 10 Wend. 304; S. C, 13 Wend'. 
 133; ante, §§ 119,389. 
 
700 PROMISSORY NOTES. [CHAP, XI. 
 
 can be stated is, that the delay should not be beyond what 
 the common course of business warrants in such cases.^ 
 
 For these reasons, I am of opinion, that the plaintiff is not entitled to re^ 
 cover, and that a judgment of nonsuit ought to be entered." Henderson 
 V. Appleton, tried in the Court of Pleas, at Durham. Upon a motion for a 
 new trial, argued before Bayley, J., and HuUock, J., at chambers, Ser- 
 jeants' Inn, 23 July, 1827. Assumpsit for goods sold. Plaintiff sold goods 
 to defendant, at Denlington market, on Monday, 1 2th December, and, on 
 account of the alarm respecting bankers, it was agreed that the payment 
 should not be made till the Monday following, the 19th December, when 
 the parties again met at Denlington market, and defendant offered several 
 country Notes, and offered plaintiff the choice, and he selected and took 
 two five-pound Notes of Hutchinson's Stockton Bank, and in the evening 
 went home to Husworth. By the course of the post, the Notes could not 
 have been presented at the bank at Stockton till Wednesday, the 21st De- 
 cember. It was proved that the bank paid all day on Saturday, the 17th 
 December, but did not pay. on Monday or afterwards, and refused to pay 
 any Notes after Saturday. On Wednesday, the 21st, the plaintiff met the 
 defendant at Stockton, and offered to return or exchange the same with the 
 defendant, but he- refused, saying, that the bank was going (meaning pay- 
 ing) on Tuesday. Verdict for plaintiff. CressweJl, for the defendant, on 
 motion for a new trial, contended, that Bowes v. Howe, 6 Taunt. 30, estab- 
 lishes the obligation in all cases, to present for payment, and referred to 
 Camidge v. AUenby, 6 B. & C. 382, in which it was held, that, though the de- 
 fendant delivered the Notes to the plaintiff after the bank stopped payment, 
 yet, inasmuch as the plaintiff kept the Notes a week, after knowledge of the 
 failure of the bank, without offering them to the defendant, or giving him no- 
 tice, he had made the Notes his own ; and Cresswell relied also on the words 
 of the statute of Anne, and on the general rule, requiring the due present- 
 ment of a Bill, although the acceptor has notoriously become bankrupt. 
 Chitty, contra, relied on Howe v. Bowes, 16 East, 112 ; Owenson v. Morse, 
 7 Term, 64, and Ex parte Blackburne, 1 Ves. 206 ; and insisted, that, as 
 the defendant had himself delivered the Notes to the plaintiff, at a time 
 when the bank had already stopped payment, he had broken the implied 
 warranty that the Notes at the time of the delivery to the plaintiff were 
 capable of producing the money, and that at least the defendant's subse- 
 quent conversation dispensed with the necessity for a formal presentment. 
 Bayley, J. said, he believed the ground of the decision in Camidge ». Al- 
 lenby was, that the Notes should be deemed a payment, unless returned in 
 a reasonable time ; and that the plaintiff, by keeping the Notes a week 
 after he had heard of the stoppage, without notice to the defendant, had 
 precluded himself from recovery ; but that here the plaintiff had offered to 
 
 ' Ibid. 
 
CHAP. XI.} NOTES OF BANKS AND BANKERS. 701 
 
 § 501. In America, the business of banking is generally 
 carried on by incorporated banks, which issue their Notes 
 with the intent that they shall circulate as currency. And 
 accordingly, they usually pass, and are received, as cash or 
 ready money .1 It matters not how long bank-notes have 
 been issued, or how long they remain in circulation, or 
 whether they have been received back into the bank, and 
 reissued, or not ; for they are still always treated as nego- 
 tiable paper, not overdue, or liable to any equities between 
 the bank and any parties who have subsequently received 
 them, or between any intermediate parties.^ The bank, 
 therefore, always remains (as bankers do upon their Notes) 
 liable to pay the same to any person who becomes the holder 
 or bearer thereof, at any distance of time from the original 
 issue thereof. In respect to persons "who receive the same 
 in the course of circulation, either in payment of prior debts, 
 or of debts then contracted, the general rule is, that the 
 
 return, and tlie defendant had refused to take back the Notes, and therefore 
 plaintiff was entitled to recover ; and HuUock, C, concurring, the rule for 
 a new trial was discharged. Confirmed in Rogers v. Langford, 1 C. & M. 
 637. In that case it appeared, than on Wednesday, the 23d November, A 
 bought goods from B, which he paid for in country bank-notes. On Mon- 
 day, the 28th, B requested A's servant, as a favor, to exchange the Notes 
 for money, which he accordingly did. On the same day, the bank stopped 
 payment. A heard of it on Tuesday, and on Wednesday wrote to B, in- 
 forming him of the failure of the bank, and desiring him to exchange the 
 Notes ; but the Notes were not produced or tendered to B until long after- 
 wards, nor were they ever presented at the bank. In an action brought by 
 A against B to recover the value of the Notes, it was held, that A was not 
 entitled to recover. Per Bayley, B. : "I think the Notes ought to have 
 been either presented by the holder to the bank for payment, or else to 
 have been returned without delay to the defendant, so as to give him an 
 opportunity of getting payment for them, or of making the best of them." 
 See also Chitty on Bills, ch. 9, pp. 387, 388 (8th edit.) ; Id. p. 414; Id. ch. 
 12, pp. 554, 555; Id. ch. 9, p. 356 (9th edit.) ; Id. p. 384; ante, § 207, and 
 note ; post, § 502. 
 
 » Chitty on Bills, ch. 12, p. 555 (8th edit.) ; Id. ch. 12, pp. 523, 524 (9th 
 edit.) ; Miller v. Race, 1 Burr. 457 ; BuUard v. Bell, 1 Mason, 243, 252. 
 
 ' Solomons v. Bank of England, 13 East, 135, note ; BuUard v. Bell, 1 
 Mason, 243, 251, 252. 
 
702 PROMISSORY NOTES. [CHAP. XI. 
 
 creditor takes them at his own risk, if the bank is then in 
 good credit, and he does not present the same for payment . 
 within a reasonable time, that is to say, as early as he may 
 after the day on which he received the same.^ 
 
 § 502. "If the bank has actually failed, or should fail, before 
 the Notes can, within such reasonable time, be presented for 
 payment, then the holder, upon giving due notice of the dis- 
 honor, may recover the amount or consideration from the 
 person from whom he received the same. But, it has been 
 thought, that even the failure of the bank will not dispense 
 with a due presentment for payment at the banking-house ; 
 and, at all events, it will be necessary to give due notice to 
 tlie person from whom the Notes were received of the failure 
 of the bank, accompanied with an offer to return the Notes, 
 in order to bind him'.^ We have already had occasion to 
 state, that there is some conflict in the American authorities 
 upon the point whether bank-notes are to be deemed an 
 absolute payment, and taken at the risk of the creditor who 
 receives the same, or not.^ What has been stated in the 
 preceding part of this section is the doctrine asserted in the 
 English authorities; and it seems supported by what may 
 well be deemed the preponderance of authority, as well as of 
 reasoning in America.* 
 
 1 4nie, §§ 117-119, 389. 
 
 « Caraidge v. Allenby, 6 B. & C. 373; Chitty on Bills, ch. 9, p. 387, and 
 note (8th edit.) ; Id. ch. 9, p. 356 (9th edit.) ; Rogers v. Langford, 1 C. & M. 
 637; ante, § 119, and note, §§ 389, 500. 
 
 ' Ante, § 119, and note, § 389. 
 
 • Ante, § 119, and note, § 389. The question was much discussed in The 
 Ontario Bank v. Lightbody, 13 Wend: 101 (S. C. 11 Wend. 9), in which 
 the Court of Errors held the doctrine affirmed in the text. On that occa- 
 sion, Mr. Chancellor Walworth said : " The question to be decided is, which 
 of the parties shall sustain the loss in reference to the Bill of the Franklin 
 Bank, received by Lightbody, paid upon the presentment of his Check. 
 The law is well settled, that, where the Note of a third person is received 
 in payment of an antecedent debt, the risk of his insolvency is upon the 
 party from whom the Note is received, unless there is an agreement or 
 understanding between the parties, either express or implied, that the party 
 
CHAP. XI.] CONCLUDING REMARKS. 703 
 
 § 503. We have thus gone over the most material doc- 
 trines applicable to Promissory Notes, to Guaranties thereof, 
 
 who receives the Note is to take it at his own risk. The same principle is 
 applicable to the Notes of an incorporated bank, except that as to the latter 
 there is always an implied understanding between the parties, that if the 
 Bill, at the time it is received, is in fact what the party receiving it supposes 
 it to be, he is to run the risk of any future failure of the bank. This im- 
 plied agreement between the parties arises from the fact, that Bills of this 
 description, so long as the bank which issued them continues to redeem 
 them in specie at its counter, are, by common consent, treated as money, 
 and are constantly passed from hand to hand as such. The receiving them 
 as money, However, is not a legal, but only a conventional regulation, 
 adopted by the common consent of the community ; as no State is author- 
 ized to coin money, or to pass any law by which anything but gold or 
 silver coin shall be made a legal tender in the payment of debts. This 
 principle of considering bank-bills as money, which the receiver is to take 
 at his own risk, cannot, therefore, be carried any further than the conven- 
 tional regulation extends, — that is, to consider and treat them as money, 
 so long as the bank by which they are issued continues to redeem them in 
 specie, and no longer. When, therefore, a bank stops payment, its Bills 
 cease to be a conventional representative of the legal currency of the 
 country, whether the holder is aware of that fact or not ; from that moment 
 the Bills of such bank resume their natural and legal character of Promis- 
 sory Notes, or mere securities for the payment of money ; and, if they are 
 afterwards passed off to an individual who is equally ignorant of the failure 
 of the bank, there is no agreement on his part, either express ^or implied, 
 that he shall sustain the loss which has already occurred to the original 
 holder of the Bills. Upon the principles applicable to cases'of mutual mis- 
 take, as those principles are administered in Courts of Equity, it is now 
 settled that, if an individual passes to another a counterfeit Bill, or an 
 adulterated coin, both parties supposing it genuine at the time it was 
 received, the one who passes it is bound to take it back, and give him to 
 whom it was passed a genuine Bill or an unadulterated coin in. lieu thereof; 
 or, in other words, to make good the loss. Markle v. Hatfield, 2 John. 455. 
 That principle of natural justice is equally applicable to the case under 
 consideration. The actual loss had been sustained by the failure of the 
 bank while the plaintiffs in error were the holders and owners of the Bill ; 
 and it is a maxim of the law, that the loss is to him who was the owner at 
 the time such loss happened, if both parties were ignorant of the loss at the 
 time of making their contract. Here the one party intended to pay, and 
 the other supposed he was receiving, the Bill. of a bank, which was redeem- 
 in" its Bills at its counter. Suppose the inquiry had been made of the 
 defendant, ' Do you expect to sustain the loss, if the bank should fail before 
 you shall have parted with this Bill ? ' The answer, according to the im- 
 
704 PROMISSORY NOTES. [oHAP. XI; 
 
 to Checks on Banks and Bankers, and to Bank-Notes. In 
 
 concluding these Commentaries, the reflection naturally sug- 
 
 plied understanding of the parties, arising from the nature of the transac- 
 tion, and considering the Bills of specie-paying banks as money, would 
 certainly have been in the affirmative. But, if he bad been asked, ' Do 
 you understand that you are to bear the loss, if it should hereafter be ascer- 
 tained that the Franklin Bank has now actually failed and stopped pay- 
 ment ? ' he would unquestionably have answered, ' No ' ; in that event, as 
 the loss will have happened while you were the owner of the Bill, natural 
 equity requires that you should bear it ; and I shall expect you to take' 
 back the Bill, and give me one which is good.' " Mr. Senator Van Schaick 
 also delivered a very able opinion on the same side. In Harley ». Thorn- 
 ton, 2 Hill (S. C), 509, note, the case was " a summary process to recover 
 twenty dollars from the defendant, under the following circumstances : In 
 the course of a regular business transaction, the defendant passed to the 
 plaintiff a twenty-dollar Bill, on the Macon Bank of Georgia. The bank 
 had failed and stopped payment before this, but this fact was not then 
 known in the community where this transaction occurred, or to the parties 
 themselves, at the time the Bill was passed. On these facts, the presiding 
 Judge decreed for the plaintiff, and the defendant appealed and moved to 
 reverse the decree." Mr. Justice Harper, in delivering his opinion in this 
 case (in which the other Judges concurred), said : " I do not know what 
 other rule can govern this case than that which is applied by the English 
 authorities to negotiable Notes and Bills, and to Bankers' Notes and Checks, 
 which are commonly circulated, and answer the purposes of cash. This 
 rule, though there has been a diversity in the cases on the subject, I take 
 to be settled thus : that, if such Note or Bill be paid in satisfaction of a 
 previous debt, or if it be paid in the ordinary course of business for a debt 
 contracted at the time, as, for goods sold, and it turns out to be bad, the 
 person receiving it may resort to, and recover on, the original cause of 
 action. If the Note, however, be sold or discontinued, or if there be an 
 understanding or agreement that the party receiving shall take it as pay^ 
 ment, and abide the risk, there can be no recourse if it prove bad. The 
 older cases which are referred to in Owenson v. Morse, 7 Term, 65, seem to 
 make this distinction, that, if the Note be paid in satisfaction of a previous 
 debt, and turns out to be bad, the party may resort to the original cause of 
 action ; otherwise, if on account of a debt contracted at the time. That 
 distinction, for which there seems little reason, was overruled in the case 
 referred to. In that case the party agreed to purchase some plate, and 
 paid for it at the time in bankers' Notes. At the time of the payment, the 
 banker's house was shut, and never opened again, he turning out insolvent ; 
 this was held to be no payment. To the same effect I understand the 
 remarks of Lord Eldon, in Ex parte Bl'ackburne, 10 Ves. 506 : 'I take it 
 now to be clearly settled, that, if there is an antecedent debt, and a Bill is 
 
CHAP. XI.] CONCLUDING REMARKS. 705 
 
 gests itself, how various, and intricate, and difficult are the 
 practical details of the subject, entering so largely into the 
 daily business of human life. The general principles be- 
 longing to it are, comparatively speaking, of great simpli- 
 city, and mainly dependent upon natural justice and equity ; 
 and they have accordingly been collected and arranged, with 
 no common diligence and skill, by the learned jurists of Con- 
 tinental Europe, in successive treatises upon Bills of Ex- 
 change, from a very early period of commercial law down to 
 our times. Jousse, and Scaccia, and Savary, and Pothier, 
 and Heineccius, among the elder jurists, and Pardessus, Bou- 
 lay Paty, Baldasseroni, and Nouguier, among those of the 
 
 taken without taking an indorsement, which Bill turns out to be bad, the 
 demand for the antecedent debt may be resorted to. It has been held, that if 
 there is no antecedent debt, and A carries a Bill to B to be discounted, and 
 B does not take A's name upon the Bill, if it is dishonored there is no 
 demand ; for there was no relation between the parties, except that trans- 
 action ; and the circumstance of not taking the name upon the Bill is 
 evidence of the purchase of the Bill. In a sale of goods, the law implies a 
 contract that those goods shall be paid for. It is competent for the party to 
 agree that the payment shall be by a particular Bill. In this instance, it 
 would be extremely difficult to persuade a jury, under the direction of a 
 Judge, to say an agreement to pay by Bills was satisfied by giving Bills, 
 whether good or bad.' See also Puckford v. Maxwell, 6 Term, 52. Chitty in 
 his treatise on Bills, p. 339, speaking of bankers' Notes or Checks, says : 
 ' On account of their being payable on demand, they are considered as cash, 
 whether payable to order or bearer, but if presented in due time, and dis- 
 honored they will not amount to payment.' See also the American author- 
 ities on the subject, referred to in a note to the American edition of Chitty, 
 p. 118, note (h). Thus, it will generally happen, that the holder of a bank- 
 note, who is in possession of it at the time the bank stops payment, must 
 bear the loss, provided, that he has been in possession so long, that a reason- 
 ble time for presenting the Note and demanding pnyn cnt has elapsed. It is 
 always necessary, that the Note should be presented within a reasonable 
 time, when the party intends to charge the person from whom he received it. 
 In the present case, however, there is no question on this subject, for the bank 
 had stopped payment before the Note was paid to plaintiff. In answer to a 
 remark of counsel, it may be observed, that the insolvency of a bank is 
 referred to the time of its stopping payment. It is supposed that any par- 
 ticular Note would have been paid, if it had been presented before that 
 time." 
 
 45 
 
706 PEOMISSOEY NOTES. [CHAP, XI. 
 
 present age, have, perhaps, expounded them with the most 
 fulness and accuracy. And yet, if we stopped here, how 
 little could be gleaned from their works to instruct and 
 guide us in the many curious questions and important in- 
 quiries which now meet us at every step in the crowded busi- 
 ness of commerce, on the Exchange, and in the circulation 
 and discount of negotiable credits. It is not, perhaps, too 
 much to say, that the daily business of the city of Loudon 
 alone furnishes hundreds of cases, where the Continental 
 jurists could afford no information to clear away any practi- 
 cal doubts, or to assist in forming any safe and satisfactory 
 judgments. Yet how few are the doubts and details which 
 the commercial jurisprudence of England has not already, 
 reduced within very narrow limits of authority and pre- 
 cept. It is here, indeed, that the Common Law has achieved 
 a silent, but a glorious and uncontested triumph. It has fol- 
 lowed out its general principles into the most minute and 
 varied results, and demonstrated, in a marvellous manner, 
 its ready flexibility and power of adaptation to all the wants 
 and exigencies of a busy, opulent, and refined society. 
 
INDEX. 
 
 The References are to the Sections. 
 
 A. 
 
 ABSCONDING OF PARTY, ^°"°° 
 
 when it will excuse the want of due presentment of Note 
 
 for payment 205, 237 
 
 ACCIDENT, 
 
 when it will excuse the want of due presentment of 
 
 Note * . . . 205,257-259 
 
 ACCOMMODATION NOTES, ....... 190 
 
 when a defence to a Note 190 
 
 when not a defence 194 
 
 when it excuses non-presentment of a Note at its maturity 268-270 
 
 when not 268, 269, 292 
 
 effect of release to other parties 423 
 
 ACCOED AND SATISFACTION, .... 402, 403, 408 
 
 (See SATiSFACTiok.) 
 ACCOUNT, 
 
 Notes payable for the use or account of a party 26, 143, 144 
 
 ACTION, 
 
 may be brought on last day of grace . . . . 225 a 
 
 ADDRESS OF NOTICE OF DISHONOR, 
 
 how it should be 346, 347 
 
 effect of mistake in 346, 847 
 
 ADMINISTRATORS AND EXECUTORS, 
 
 parties to Notes 63, 64 
 
 as makers ... 63, 64 
 
 as indorsers 120, 123 
 
 transfers by ... 123 
 
 when payment demandable of 253 
 
 when payment demandable by . • . . . 253 
 
 at what place demandable by or of 253 
 
 ADMISSION OF SIGNATURE OF PARTIES ... 135 
 when admitted or not 135, 379, 380 
 
708 INDEX. 
 
 Section 
 ADMISSION OF SIGNATURE OF PARTIES, Continued. 
 
 by indorser or not 135, 379, 380 
 
 not by maker 135, 379 
 
 AGENTS, 
 
 parties to Notes 65-70 
 
 when bound by ' . 65-70 
 
 presentment of Notes for payment by . . . . 246, 249 
 
 notice by, of dishonor 301 
 
 notice to, of dishonor 307, 309 
 
 ■within what time agents should give notice of dishonor . 326 
 
 to whom he should give notice ..... 326 
 
 AGREEMENTS OF PARTIES TO NOTES, 
 
 when they will excuse non-presentment of Notes for pay- 
 ment 271-273 
 
 when a waiver of due presentment of Notes . 271 - 273, 295 
 
 effect of ambiguous language in 287 
 
 parol agreement, varying terms on time of payment of 
 
 Note, effect of, 291 
 
 no excuse for non-presentment at maturity of Note . . 291 
 
 agreement as to time and place of notice, effect of . . 314 
 agreement to take a third person as substitute for the 
 
 debt 425 
 
 ALIENS, 
 
 parties.to Notes 
 
 alien enemies, when bound by or not . . . . 94 - 98, 100 
 
 indorsement by or to, effect of 99 
 
 ALLONGE, 
 
 what it is 151 
 
 ALTERATION OF NOTES, 
 
 what is 408 a 
 
 avoids the Note 408 a 
 
 AMOUNT OF MONEY IN NOTE, 
 
 must be fixed and certain 20, 21 
 
 good if in ciphers, or figures, or words .... 21 
 
 ANTEDATING NOTE, 
 
 effect of 48 
 
 ASSIGNEES OF BANKRUPT, 
 
 transfers by, 123 
 
 when bound to make indorsement 120 
 
 when entitled to sue 102 
 
 when presentment of Note for payment by . . . .249 
 
 when to 252 
 
 notice by or to, of dishonor 305, 307 
 
INDEX. 709 
 
 ASSIGNMENTS OF NOTES, ^'"tl 
 
 of negotiable Notes 41 
 
 of non-negotiable Notes 42, 128 
 
 payable to A or assigns 49 
 
 to Government 41, 130 
 
 eflFect of, without indorsement 117 
 
 effect of, by the foreign law 131 
 
 ATTESTATION OF NOTES, 
 
 when necessary or not 54, 56 
 
 ATTORNEY, 
 
 no power to indorse a Note committed to him for collection 121 
 AVAL, 
 
 what it is (See Guaranty) 455, 456 
 
 effect of by foreign law 455, 456 
 
 B. 
 
 BANK-NOTES PAYABLE AT A BANK, 
 
 when and how demandable .... 227-230,243,251 
 never deemed overdue 500, 501 
 
 BANK-NOTES AND BANKERS' NOTES, 
 
 when payment in Bank-notes good or not . 119,389,500-502 
 effect of failure of bank after Notes received in payment . 502 
 
 BANKERS, 
 
 when treated as holders as to their customers . . . 326 
 
 BANKRUPTCY, 
 
 effect on title to Note 102 
 
 of drawer stop payment of check 498 a 
 
 no excuse for want of due presentment of Note for pay- 
 ment 203, 241 
 
 presentment for payment in case of .... 249,252 
 in case of, by whom notice of dishonor is to be given . 305 
 
 in case of, to whom notice of dishonor is to be given . . 307 
 discharge of bankrupt, effect as to other parties on the 
 
 Note 428 
 
 BEARER, NOTES PAYABLE TO 116 
 
 how negotiable 116 
 
 by delivery 116 
 
 may be indorsed 132 
 
 effect of indorsement of 132 
 
 liability of transferrer of 116-118 
 
 BILLS OF EXCHANGE, 
 
 how they differ from Notes 4, 453 
 
 acceptance to pay at a bank, effect of . . . . 227 
 
710 INDEX. 
 
 Section 
 
 BLANK NOTES, 
 
 effect of 10 
 
 indorsements, effect of 13S 
 
 BONA FIDE HOLDER, 
 
 who is deemed 195 
 
 C. 
 
 CAPACITY, AND COMPETENCY OF PERSONS, 
 
 who are capable to make Notes . . . . .60-62 
 
 alien friends 94, 99 
 
 trustees 63, 64 
 
 guardians . 63, 64 
 
 ^ executors and administrators . .... 63, 64 
 
 agents 65-71 
 
 partners . ... . , . . 72, 73 
 
 corporations 74 
 
 who are incapable 75-102 
 
 infants 75,77-82 
 
 married women 75, 85 - 93 
 
 alien enemies . . . ... . . 75,94-100 
 
 persons non compotes 75, 101 
 
 special prohibitions 76, 77, 83, 84 
 
 spendthrifts and prod^als 83, 84 
 
 bankrupts 102 
 
 to make indorsements 80,87-92 
 
 indorsements by in&nts 80 
 
 indorsements by married women . . . .87-92 
 CASHIERS OF BANKS, 
 
 indorsements to 127 
 
 indorsements by 127 
 
 CHECK, 
 
 when receiving a Check is payment of Note . . . 389 
 CHECKS ON BANKS AND BANKERS, 
 
 definition of Check ........ 487 
 
 form of 487, note 
 
 payable to a particular party 488 
 
 payable to bearer .. 488 
 
 payable to order 488 
 
 resemblances and differences between Bills of Exchange 
 
 and Checks 489, 491, 492 
 
 in what they differ 489 
 
 are always drawn on a bank or on bankers .... 489 
 
 no grace allowed on 489, 490 
 
 al\yays presumed to be drawn on funds deposited . . . 480 
 
INDEX. 711 
 
 CHECKS ON BANKS AND BANKERS, Continued. 
 
 ■ when and how made payable 490 
 
 on demand 490 
 
 on a fixed and certain day 490 
 
 effect of antedating or postdating 490 
 
 when Check demandable 491, 492 
 
 when deemed overdue or not 491 
 
 drawer, when discharged by want of due presentment or not 492 
 
 drawer, when discharged by want of due notice of dishonor 492 
 want of due presentment or notice a discharge only to 
 
 the amount of damage occasioned thereby . . . .592 
 rights and duties of holders of Checks . . . 493, 494 
 
 when to be presented for payment 493 
 
 in case of successive transfers 493, 49*4 
 
 liabilities of drawer of Check .... 493,497,498 
 
 may countermand payment 498 a 
 
 liabilities of subsequent transferrers or indorsers . . 493-496 
 
 memorandum Checks, what they are 499 
 
 effect of 499 
 
 CHRISTMAS DAY, 
 
 deemed a holiday 222 
 
 COIN OR CURRENCY 389, 400 
 
 in what coin or currency Notes are payable .... 389 
 
 effect of debasement of 390-400 
 
 payment, in what coin or currency demandable . . 390-400 
 COLLATERAL SECURITY, 
 
 taking collateral security, when a waiver of due present- 
 ment of Note or not ". .278, 284 
 
 , effect of holder's receiving the Note as collateral secu- 
 rity only 284 
 
 when taking collateral security by holder does not dis- 
 charge the other parties on the Note 416 
 
 COMPENSATION OR SET-OFF, 
 when a discharge, 
 
 in Roman and foreign law 407, 437 
 
 effect of, in foreign law . . . ..- . . . .437 
 
 COMPOSITION OF DEBT 426, 427 
 
 effect of composition with maker 426 
 
 effect of composition with indorser .... 426, 427 
 effect as to prior and subsequent parties on the Note . 426,427 
 
 when it operates as a release 426, 427 
 
 CONDITION IN NOTES, 
 
 effect of 22-24 
 
 CONDITIONAL PAYMENT, 
 
 when a Note is or not .... 104,105,117,404,438 
 
712 INDEX. 
 
 Section 
 
 CONFUSION, 
 
 effect of, by the foreign law 439-444 
 
 CONSIDERATION, 
 
 notes import prima yhcie a consideration .... 7,181 
 when consideration inquirable into or not . . . 181,190,191 
 
 between what parties inquirable into 181 
 
 inquii-able into when Note overdue 190 
 
 when not inquirable into 190, 191 
 
 not, in case of 6ona JJrfe purchaser . . . 191,192,195 
 what consideration necessary to support Notes . . .183 
 what is a valuable consideration . . . 183, 184, 186, 195 
 
 what is not sufficient 184 
 
 moral consideration not sufficient . . . . 184, 185 
 total want of consideration, effect of .... 187,190 
 Partial want of consideration, effect of . . . .187,190 
 
 what is illegal 189, 193 
 
 what is void 188 
 
 when illegality avoids Notes 190,193 
 
 when illegality avoids indorsements 193 
 
 CONTINGENCY, NOTES, PAYABLE ON, 
 
 effect of 22-24 
 
 as to payment itself 22-24 
 
 As to person by whom payable . , 33, 34 
 
 As to person to whom payable 33, 35 
 
 CONTRACTS, 
 
 by what law governed 154-177 
 
 (See Lex Loci.) 
 
 CORPORATIONS, 
 
 when bound by Notes 74 
 
 when they may make contract by Notes .... 74 
 
 COVENANT NOT TO SUE MAKER 408 
 
 when it operates as a release 408, 409 
 
 as to what parties it is or not 409 
 
 not to joint maker or joint indorser .... 409 
 
 CURRENCY AND COIN, 
 
 in what currency Notes are payable . . , .389-400 
 effect of debasement of 390-400 
 
 D. 
 
 DAYS OF GRACE 215-225 
 
 (See Grace, Days of) 
 
 meaning of 215 
 
 what allowable 216 
 
 operation of lex loci on 216 
 
INDEX. 713 
 
 Section 
 
 DAYS OF GRACE, Continued. 
 
 how calculated "'~. . 21 7, 218 
 
 how affected by holidays 219-223 
 
 DATE OF NOTES 45, 46, 47 
 
 when date required on 45, 46 
 
 antedating, effect of 48 
 
 postdating, effect of 48 
 
 time calculated, exclusive of 211 
 
 note dated on Lord's day 48 a 
 
 effect of 48 a 
 
 DEATH OF PARTIES, 
 
 of maker of Note, on whom demand of payment is to be 
 
 made 253, 254 
 
 of holder, by whom demand of payment is to be made . 250 
 no excuse for non-presentment of Note for payment . . 254 
 of partner, or joint promisor, effect of . . . 254, 256 
 
 of drawer stop payment of check 498 a 
 
 DEFENCES AND DISCHARGES OF NOTES 
 
 (See Consideration) 370-453 
 
 want of consideration . .181-187,203,204,241,286-296 
 
 payment by maker 272-389 
 
 when good or not . . . . 372-384,386-388 
 
 by whom . . . 374 
 
 to whom 375-378,381 
 
 in cases of forgery of signatures .... 379-381 
 
 in cases of lost or stolen Notes 382 
 
 at what time to be made 384 
 
 partial payments, effect of 386 
 
 mode of payment 389 
 
 in what coin or currency 389 
 
 in cases of debasement of coin or currency . 390-400 
 
 payment by indorser 400-402 
 
 satisfaction of Notes, otherwise than by payment . 402, 403, 408 
 distinction between satisfaction and extinguishment . . 403 
 what is a satisfaction or not .... 402, 425, 426 
 satisfaction by one joint maker, or indorser dis- 
 charges the other joint parties 425 
 
 when the Note of the party, or of a third person, a 
 
 satisfaction or not . . . 104, 404, 408, 425, 426 
 
 discharge by operation of law 405, 407, 438 
 
 discharge of party by bankruptcy . . . 407,428 
 
 merger of Note by judgment 407 
 
 appointment of maker to be the executor of holder 407, 439 - 444 
 bequest of Note by holder to maker . . . . 407 
 
714 INDEX, 
 
 Section 
 
 DEFENCES AND DISCHARGES OP NOTES, Continued. 
 
 infancy of maker, when a discharge or not . . . 407 
 
 marriage of holder, effect of 407 
 
 compensation or set-off 407, 437 
 
 discharge by act of party 408-427 
 
 accord and satisfaction 408 
 
 release 408,423-426 
 
 what parties discharged by a release . . 408,423-426 
 agreement to substitute new security . . . 408, 411 
 covenant never to sue maker is a discharge of him . . 408 
 
 but not of other parties 409, 425 
 
 what is not a discharge 410 
 
 parol release is not 410 
 
 taking collateral security is not 411 
 
 by alteration of the Note 408 a 
 
 what will discharge indorsers 412 
 
 when agreement between holder and maker for de- 
 lay, a good discharge 413-419 
 
 between what parties such agreement is a discharge 
 
 or not 413,414,417,418 
 
 when agreement to give time not a discharge . 417-421 
 giving time to one joint maker or joint indorser is not . 421 
 where indorser consents to agreement is not . . 419 
 receiving part payment is not a discharge of other parties . 422 
 between whom a release is a discharge of other parties 423, 424 
 between whom not of other parties .... 423, 424 
 release of one joint maker or indorser will discharge 
 
 all the other joint parties 425 
 
 satisfaction by one joint maker or indorser dis- 
 charges the other joint parties 425 
 
 covenant not to sue one joint maker or indorser, not 
 
 a discharge of the others 409 
 
 compositiomof debt, what parties discharged thereby 426, 427 
 
 discharges under foreign law 429 - 444 
 
 by release 429-435 
 
 by compensation or s^t-off 436, 437 
 
 by novation 438 
 
 by confusion 439-444 
 
 DELIVERY UP OF NOTES ON PAYMENT 106-112, 243, 244 
 
 when demandable or not 106-112,243 
 
 effect of Notes being lost or mislaid as to 106 - 112, 243 - 245, 
 
 445-450 
 
 DEMAND, NOTES PAYABLE ON 29, 30 
 
 when payment of to be demanded .... 207-209 
 
INDEX. 715 
 
 DESTROYED NOTES, ^^^ 
 
 whether payment recoverable on at law . . . 107, 449, 450 
 DIRECTION OF NOTICE OF DISHONOR, 
 
 what is good or not 343-347 
 
 DISCHARGES AND DEFENCES, 
 
 {See Defences and Discharges.) 
 DISEASE, MALIGNANT, 
 
 when it will excuse want of due presentment of Note 
 
 for payment 20S 
 
 DUE BILL, 
 
 when deemed a Note or not 14 
 
 DURESS, 
 
 avoids Notes 188 
 
 E. 
 
 ENEMY, ALIEN, 
 
 ability of, to contract or not 95 - 100 
 
 (See Aliens.) 
 EQUITIES, 
 
 when Note in hands of holder liable to . . . . 178-180 
 EXCUSE FOR WANT OF DUE PRESENTMENT, 
 {See Presentment.) 
 
 what is a good excuse 205,257-286 
 
 inevitable accident 205,257-259 
 
 malignant disorder 205, 257, 260 
 
 political interruptions of trade .... 205, 257, 261 
 war and public hostilities .... 205, 257, 262 
 
 Interdiction of conmierce 205, 257, 263 
 
 impracticability of finding the maker or his resi- 
 dence 205, 257, 264 
 
 impracticability to make due presentment, from re- 
 ceiving the Note near its maturity .... 265, 266 
 that Note is for the accommodation of the indorser 268 - 270 
 special agreement, waiving presentment . . 271-273 
 
 waiver of presentment 276 - 280 
 
 receiving other security by indorser . . . 281 - 283 
 receiving Note as collateral security by holder *. . 284, 285 
 
 what is not a good excuse 286 - 29£ 
 
 that maker is bankrupt . • 286 
 
 equivocal language or acts of indorser . . . .287 
 that indorser knows that Note will not be paid . . 288, 289 
 that the Note is lost or mislaid 290 
 
716 INDEX. 
 
 Section 
 
 EXCUSES FOR WANT OF DUE PRESENTMENT, Continued. 
 parol agreement between maker and holder, not to 
 
 demand payment at the maturity of the Note . .291 
 that maker and indorser are accommodation parties 
 
 for subsequent indorser 292 
 
 that indorser has ordered maker not to pay Note . . 293 
 that indorser is a partner in the firm which are 
 
 makers 294 
 
 EXCUSES FOR WANT OF DUE NOTICE . . .355-358 
 (See Notice.) 
 
 general excuses 355, 356 
 
 special excuses 357, 358 
 
 what excuses not sufficient 367 
 
 effect of waiver of notice 358 - 368 
 
 (See Notice, Waiver.) 
 what is a good waiver or not .... 358 - 368 
 what sufficient proof of waiver .... 364 - 368 
 EXECUTORS AND ADMINISTRATORS, 
 
 when bound by a Note 63, 64 
 
 as makers 63, 64 
 
 as indorsers 120, 123 
 
 transfers by 123 
 
 when payment of Note demandable by 250 
 
 when payment demandable of 253 
 
 at what place demandable of 253 
 
 when making party an executor is a discharge of his 
 
 liability on a Note 407, 429 - 444 
 
 (See Confusion.) 
 
 EXTINGUISHMENT OF NOTE 403,409 
 
 (See Defences and Discharges.) 
 distinction between extinguishment and sat- 
 isfaction of a Note 403, 409 
 
 extinguishment by act of party .... 406, 408 
 - extinguishment by operation of law . . . 406,407 
 
 F. 
 FAIRS, 
 
 Notes payable at 32 
 
 FEMES COVERT . . . . 75,85-92,124,249,250,306 
 (See Marries Women.) 
 
 when makers of Notes 75, 85 - 92 
 
 when payees 88, 124 
 
 when indorsers 88, 129 
 
 presentment for payment of Notes to or by . 249, 250 
 notice of dishonor to or by 306 
 
INDEX. 717 
 
 FICTITIOUS PERSONS, ^°"°'' 
 
 effect of on Notes 39,137 
 
 Notes payable by or to 39 
 
 Notes indorsed by or to 137 
 
 FOREIGN LAW 154-180 
 
 {See Lex Loci) 
 
 FORGERY OF NOTES 379,387 
 
 of signature of maker 379,380,387 
 
 of signature of indorser 39,379,388 
 
 effect of on negotiation of Notes .... 379,387 
 indorser warrants genuineness of signatures 
 
 of prior parties 135, 370, 380 
 
 maker does not warrant genuineness of other 
 
 signatures 135, 379, 380 
 
 paytnent on forged signature . . . 379, 381, 387, 388 
 
 FORM OP NOTES 12, 13, 57 
 
 what is sufficient 12,13,16,57 
 
 what not 14, 15 
 
 by joint promisors 57 
 
 when " I promise " by two persons 57 
 
 when a party is principal 56, 58 
 
 when a surety only 56, 58 
 
 when a guarantor only 59, 134 
 
 when an indorser only 133, 134 
 
 FORM OF INDORSEMENTS 121, 153 
 
 FRAUD, 
 
 when it avoids Note 188 
 
 when and between what parties inqnirable into . . 178, 179 
 
 G. 
 
 GAMING, 
 
 when consideration of Notes, effect of . . . . 292 
 
 GENUINENESS OF SIGNATURE . . . • . 135, 379 
 
 indorser warrants 135, 379, 380, 387 
 
 maker does not warrant 135, 379, 380 
 
 GOVERNMENT, 
 
 Notes made payable to 41 
 
 Notes assignable to 41 
 
 GRACE, DAYS OF 215-225 
 
 (See Days of Grace) 
 
 meaning of 215 
 
 what allowable 216 
 
 operation of Lex Loci on 216 
 
718 INDEX. 
 
 Section 
 
 GRACE, DAYS OF, Continued. 
 
 how calculated 217, 218 
 
 how affected by Sundays or holidays . . . 219-223 
 action may be brought on last day .... 225 a 
 GUARANTY, 
 
 what it is 455, 457 
 
 when indorsement deemed a guaranty, or not . 133, 134 
 
 guaranty of Notes 454-480 
 
 nature and obligation of . . . 457, 460, 461 
 
 consideration of 458, 459 
 
 whether consideration should appear on the face 
 
 of the instrument or not 458,459,469 
 
 difference between guaranty and suretyship . . 462, 466 
 
 how guaranty created 463 
 
 by independent instrument . . . .'363-465,484 
 by writing on the Note itself .... 463, 466 
 construction of terms of ... . . 466-469,478 
 distinction between guaranty of payment, and guar- 
 anty of coHecft'o/i of Note 478 
 
 when the words make a joint promise . . 466,467,469,470 
 
 when a suretyship 467 
 
 when a guaranty 367,470-474,476,477 
 
 interpretation of written guaranty on back of a Note . 468 - 480 
 
 at time when Note is made 468 
 
 at a subsequent time 468, 470, 472 
 
 guaranty on back of non-negotiable Notes in blank 473-475, 479 
 at time when the Notes were made . . . .473-475 
 
 at a subsequent time 474-475 
 
 when the signer treated as a second indorser . . . 134, 476 
 
 guaranty on back of negotiable Notes . . . 476-480 
 
 at time when the Notes were made . . . 476, 479 
 
 at a subsequent time 477-479 
 
 when negotiable or not 4Sl, 483 
 
 on a separate paper 483, 484 
 
 on the Note itself 583, 584 
 
 how guaranty extinguished or discharged . . . 485, 486 
 
 by want of due presentment 485 
 
 by a release of maker of Note 485 
 
 by giving time to maker of Note 485 
 
 by giving up collateral security 485 
 
 guarantor, how he may waive his rights .... 486 
 
 GUARDIANS, 
 
 when bound by Notes 63, 64 
 
 when parties to Notes 63, 64 
 
INDEX. 719 
 
 H. 
 
 Section 
 
 HOLDER, BONA FIDE, 
 
 rights, obligations, and duties of 115 
 
 who is deemed a bona fide holder 195 
 
 holder not bound to sue the maker at the request of any 
 antecedent indorser . . . . 115 a 419 
 
 HOLIDAYS, 
 
 ■what are 220-222,321 
 
 effect of, as to demand and payment of Notes . . 219-223 
 effect of, as to givlhg notice ' 321 
 
 HUSBAND AND WIFE, 
 
 parties to Notes 85-93 
 
 (See Married Women.) 
 
 payment of Note by or to 249, 250 
 
 indorsement of Notes by or to 88,124,129 
 
 notice of dishonor by or to . . . . . . . 306 
 
 L 
 ILLEGALITY, 
 
 of consideration, effect of 189,190 
 
 when it avoids Notes 190,192,193 
 
 when it avoids indorsements 193 
 
 IMPOSITION AND CIRCUMVENTION, 
 
 when it avoids Notes 188 
 
 IMPOSSIBILITY, MORAL OR PHYSICAL, 
 
 effect of, on presentment of Notes for payment . 205, 257-259 
 
 IMPRACTICABILITY OF MAKING DUE PRESENTMENT, 
 
 in what cases an excuse 264, 265 
 
 absconding of maker 264 
 
 residence of maker being unknown 264 
 
 « receiving Note on eve of its maturity .... 265, 266 
 
 INDORSEMENT, 
 
 rights, duties, and obligations of indorsers . . 120,123,135 
 (See Transfers of Notes.) 
 
 form of indorsement 121,152 
 
 upon blank Notes, effect of 122 
 
 for the use of a third person . . . . t^ • 1^5 
 
 by whom may be made 120-125 
 
 to whom may be made 120 
 
 official indorsement 127 
 
 non-negotiable Notes, effect of indorsement of . . 128-131 
 
 effect of assignment of 128-131 
 
 of Notes payable to bearer 132 
 
720 INDEX. 
 
 Section 
 INDORSEMENT, Continued. 
 
 fictitious indorsement, effect of 137 
 
 when a person is deemed an indorser or not . . . 133 
 
 what the indorser warrants, 
 
 genuineness of antecedent signatures . . . "» 135 
 
 good title to pass the Note 135 
 
 his own competency to indorse 135 
 
 competency of maker to give and pay the Note . 135 
 
 due payment of Note at maturity, on due presentment . 135 
 
 payment by himself upon due nbtice of dishonor . 135 
 
 INDORSEMENT, DIFFERENT SORTS OF, 
 
 in blank . ' 138, 140 
 
 in full 138-141 
 
 absolute 138, 141 
 
 restrictive 138,141-145,158 
 
 qualified 138, 146, 147, 160 
 
 conditional 138, 149, 150 
 
 with enlargement of liability 148 
 
 successive indorsements, effect of .... . 151 
 
 rights, duties, and obligations of indorsee or holder . . 153 
 
 Lex Loci, operation as to indorsements . . . 154,173-180 
 
 effect of time, as to 178,180 
 
 when Notes cease to be negotiable 180 
 
 indorsement of overdue Notes 190,191 
 
 indorsement on Note, when a guaranty or not . . 473-479 
 
 (See Gtjakanty.) 
 
 INDORSERS, . SUCCESSIVE, 
 
 rights and duties of, as to notice of dishonor . . 331 - 333 
 
 within what time they must give notice . . . . 331 - 334 
 
 INEVITABLE ACCIDENT, 
 
 when it excuses non-presentment of Note for payment 205, 257-289 
 
 INFANTS, 
 
 when bound by Note or not 
 
 as makers 75, 77, 7S 
 
 as indorsers 78, 79 
 
 as payees 79 
 
 indorsements by, effect of 80-82 
 
 when holders, who to present Note for payment . . . 249 
 
 who to give notice of dishonor .... 306 
 
 INITIALS, 
 
 when sufficient signing of a Note 121 
 
 when sufficient indorsement of a Note 121 
 
 INSANE PERSONS, 
 
 notes made by, or to . . . . . . .75, 101 
 
 {See Capacity.) 
 
INDEX. 721, 
 
 Section 
 
 INSANE PERSONS, Continued. 
 
 as makers 75, 101 
 
 as indorsers 75, 101 
 
 INSOLVENCY. (5ee Bankruptcy.) . 203, 241, 249, 252, 205 
 
 INTERDICTION OF COMMERCE, ' 
 
 effect of, on rights of parties 205 
 
 when an excuse for want of due presentment of notes 
 
 for payment 205, 257, 261, 263 
 
 INTERPRETATION OF CONTRACTS, 
 
 governed by Lex- Loci 161,168 
 
 J. 
 
 JOINT INDORSERS, 
 
 notice of dishonor to 308, 329 
 
 JOLNT MAKERS, 
 
 presentment for payment to 2395 25'5 
 
 effect of release of one joint maker . . , 409, 423, 425 
 when indorsement makes a joint maker or not . . 473-479 
 
 JOINT PAYEES, 
 
 indorsement by 125 
 
 K. 
 KNOWLEDGE 
 
 that Note will not be paid is no excuse for non-present- 
 ment 288, 289 
 
 L. 
 LACHES, 
 
 in non-presentment of Notes for payment . . 205,257-286 
 
 (See Presentment.) 
 . in omission to give due notice. (5e« Notice.) . . 355-367 
 
 LETTERS OF CREDIT 482 
 
 LEX LOCI, 
 
 its operation on contracts 154 - 1 70 
 
 as to their validity 155-157,165 
 
 as to their nature 159,160,165 
 
 as to their obligation . . 160, 165, 170-173, 175, 176 
 
 as to their interpretation 161-168 
 
 as to payment of interest 166, 167 
 
 as to their effects and incidents . . . . 168-170 
 
 as to remedies 173,174,176 
 
 as to indorsement of Notes 154,173-180 
 
 46 
 
722 INDEX. 
 
 Section 
 LEX LOCI, Continued. 
 
 as to demand of payment 171 
 
 as to rights of hold&r 1 72 
 
 as to negotiability of Notes 173-176 
 
 as to notice of dishonor • 177,339 
 
 as to days of grace 216 
 
 LQST OK MISLAID NOTES, 
 
 effect on rights of parties . 106-112,243-245,290,445-451 
 no excuse for non-presentment for payment, that Note 
 
 is lost or mislaid .... 106,112,244,290,445 
 whether payment demandable, unless Note produced to 
 
 be delivered up .... 106,112,243-245,445-451 
 lost non-negotiable Note, effect of ... . 450, 451 
 
 M. 
 
 MAIL, 
 
 notice of dishonor by .... 312,322-323,341-344 
 
 MAKER OF NOTE, 
 
 rights, duties, and obligations of 103-114 
 
 the primary debtor 4 
 
 not to pay Note before maturity 113,114 
 
 fictitious person, effect of 39 
 
 MALIGNANT DISEASE, 
 
 when it excuses non-presentment of Note for payment 205, 257, 260 
 
 MARRIED WOMEN, Parties to Notes, 
 
 when bound as makers or not . . . .75,85-87,89-92 
 
 when bound as mdorsers or not 88,124 
 
 survivorship as to Notes 88 
 
 by whom presentment of Notes to be made for payment 
 
 in case of 249, 250 
 
 cannot make or indorse Notes after marriage . . . .124 
 holders of Notes, who to give notice of dishonor . . . 306 
 
 MATURITY, 
 
 effect of receiving Note near its maturity . . . 257,265 
 
 MEMORANDUM CHECKS, 
 
 their nature, character, and effect 50O 
 
 MESSENGER, 
 
 when notice of dishonor may be by . . . 324, 338, 340 
 when expense of notice by messenger is to be paid by 
 
 indorser 858, 340 
 
 MONEY, 
 
 notes must be for 17-19 
 
 in what currency Notes must be payable . . . 389 - 400 
 
INDEX. 723 
 
 Sectiou 
 
 MONTHS, 
 
 how calculated on Notes 213 
 
 by calendar months 213 
 
 N. 
 
 NATURE AND REQUISITES OP NOTES, . . . 1-60 
 
 . (See Promissory Notes.) 
 NEGOTIABILITY OF NOTES, 
 
 origin of .5-7,41 
 
 effect of 41, 42 
 
 payable to bearer 43, 44 
 
 payable to order 43, 44 
 
 payable to A or assigns 44 
 
 to government 41 
 
 by government 41 
 
 what Notes not negotiable 128 
 
 when Notes cease to be negotiable 180 
 
 when after payment by maker 180 
 
 fictitious persons, parties to Notes 39, 137 
 
 NON-NEGOTIABLE NOTES, 128 
 
 rights, duties, and obligations of parties . . . . 128 
 
 indorsement of, effect of 128, 129 
 
 assignment of . 128-131 
 
 NON-PAYMENT OF BILLS. {See Notice.) 
 
 proceedings on 257-355 
 
 NON COMPOS, 
 
 party to a Note 75, 101 
 
 as maker 101 
 
 as indorser 101 
 
 NOTARY, 
 
 not required to protest Promissory Notes generally . . 297 
 
 but is required by the foreign law 298 
 
 NOTE. (See Promissory Notes.) 
 
 when a Note is conditional payment or not 104, 105, 117, 404, 438 
 NOTICE, 
 
 what is constructive notice of defect of title to Notes . .-197 
 
 notice of dishonor of Note 297-355 
 
 when required 298, 299 
 
 by whom notice is to be given of dishonor . . . 300, 301 
 
 by any party to and liable on the Note or his agent or 
 
 representative 301 - 303 
 
 but not by a stranger 301 
 
 in case of death of holder 304 
 
724 
 
 INDEX. 
 
 in another 
 
 Section 
 NOTICE, Continued. 
 
 in case of bankruptcy of holder 
 
 in ease of infancy of holder 
 
 in case of partners . . . ■ . 
 
 in case of joint holders .... 
 
 in case of marriage of holder . 
 to whom notice of dishonor is to be given 
 
 to the indorser or his agent 
 
 in case of bankruptcy 
 
 in case of partnership .... 
 
 in case of absence of indorser 
 
 in case of death of indorser . 
 
 in case of death of partner .... 
 
 in case of joint indorser .... 
 at what place notice is to be given . 
 
 where party lives in same town or city . 
 
 where he lives in another town or city 
 
 when notice to be personal 
 
 when at dwelling-house .... 
 
 when at counting-house or place of business 
 
 when party lives in one town and does business 
 
 what is the domicile or place of business . 
 within what hours to be given .... 
 
 at place of business ..... 
 
 at dwelling-house 
 
 what is to be done, when place of residence unknown 
 what is to be done, where party is abroad or lives in a 
 
 foreign country 316-318 
 
 when and within what time notice is to be given of dishonor 3 1 9 - 340 
 
 where parties live in the same town or city . . . 320-322 
 
 where parties live in different towns or cities . . 320 - 324 
 
 when notice must be on the same day or next day af- 
 ter the dishonor 320-322 
 
 effect of religious and other festivals and holidays on . 321 
 
 when notice must be personal, or be left at place of 
 
 business or domicile 322 
 
 when it may be by the mail or post .... 322, 324 
 
 when it may be by private messenger or conveyance . 324 
 
 at what time notice must be sent by mail or post 324, 325, 327 
 
 effect of two posts on the same day .... 324, 325 
 
 all holders, whether principals or agents, entitled to 
 
 benefit of the rule 326 
 
 if notice duly sent by mail or post, its arrival immaterial 328, 329 
 
 notice in case of joint indorsers 308, 329 
 
 306 
 . 306 
 
 304 
 . 304 
 
 306 
 307-312 
 
 307, 309 
 . 307 
 
 308 
 . 309 
 
 310 
 . 311 
 
 308, 329 
 . 312 
 
 312 
 . 312 
 312 
 . 312 
 312 
 312 
 313 
 315 
 315 
 315 
 318 
 
 316- 
 
INDEX. 725 
 
 NOTICE, Continued. ^""°° 
 
 by and to successive indorsers 330, 331 
 
 within -what time each indorser must give notice . . 321 - 334 
 
 when residence of party unknown 335 
 
 when party resident in foreign country .... 336 
 in what manner notice to be sent to a foreign country . 337 
 
 when no regular conveyance 340 
 
 notice of dishonor, operation of the Lex Loci on . 177, 339 
 
 the mode or manner of giving notice . . . .340-354 
 
 when personal 340 
 
 when at domicile or place of business 340 
 
 when oral or verbal 340, 341 
 
 when in writing 340, 341 
 
 to what place to be sent when it goes by mail or post . 341 
 in case no post-office in the town, where the party 
 
 resides 343 
 
 or where he receives his letters from the post-office 
 
 of another town 342, 343 
 
 or where he receives indifferently from two post- 
 offices 342, 343 
 
 or where he resides in the country on a plantation 342, 343 
 when the post-office, to which the party's letters are 
 
 sent, is unknown 343, 344 
 
 mode of address, and direction of the letter of notice 
 
 of dishonor 345-347 
 
 name of party 346 
 
 name of place, how designated 346 
 
 whether street, where party lives, need be stated, 
 
 when he lives in a large city 346 
 
 mistake in spelling of name, effect of . . . .347 
 
 mistake in abbreviating name 347 
 
 direction, where there are two places of the same name . 347 
 
 form of 348-354 
 
 description of the Note in notice 349 
 
 what facts it should state 350,351 
 
 should state due presentment and dishonor . . . 350 - 352 
 whether necessary to state, that holder looks to in- 
 dorser for payment 353, 354 
 
 effect of mistake or misdescription .... 349, 350 
 
 effect of defective statements in 351-354 
 
 excuses for omission of notice, what sufficient . . . 355 
 
 inevitable accident 356 
 
 malignant disease 356 
 
 political obstructions 356 
 
726 INDEX. 
 
 Section 
 NOTICE, Continued. 
 
 war, and interdiction of commerce 356 
 
 impracticability of giving notice 366 
 
 special excuses 357 
 
 Note for accommodation ofindorser . . . . .357 
 
 agreement to dispense mth notice 357 
 
 receiving security from party 357,367 
 
 receiving money to pay Note 357, 367 
 
 receiving Note as collateral security 357 
 
 order by indorser, for maker not to pay the Note . . 357 
 
 •waiver of (See Waiver) 358 - 366, 368 
 
 what is a good waiver 358 - 362 
 
 what is suflkient proof of waiver . . . 360, 364 - 366 
 
 what is not a good waiver of .... 361,363-366 
 
 what not a sufficient excuse for omission of notice . . .367 
 
 bankruptcy of maker 367 
 
 that indorser knows the Note will not be paid 367 
 
 that indorser has received conditional security . . . 367 
 that indorser has received money for part-payment . . 367 
 
 that maker is insolvent 367 
 
 that the maker and indorser are accommodation par- 
 ties for a third party 367 
 
 that an original parol agreement exists between maker 
 and holder, not to demand payment at maturity of 
 
 Note 367 
 
 that Note is given by one firm and indorsed by an- 
 other firm, one person being a partner in each . . . 367 
 NOVATION, 
 
 in foreign law 438 
 
 effectof 438 
 
 O. 
 OVERDUE NOTES, 
 
 effect of, as to parties 190 
 
 effect of, as to indorsements 190 
 
 ORDER, 
 
 Notes payable to , . . 43, 44 
 
 effectof 43,44 
 
 P. 
 
 PACKET SHIPS, 
 
 when notice of dishonor may be sent by 337 
 
 within what time . 337 
 
 PAR OF EXCHANGE 396, 397 
 
INDEX. 727 
 
 PARTIES TO NOTES, HOW DESCRIBED, ^"°" 
 
 maker 3 
 
 payee 3 
 
 indorser 3 
 
 holder 3 
 
 PART PAYMENT OF NOTES, 
 
 effect of 386 
 
 PARTNERS TO NOTES, 
 
 when and how far liable 72, 73 
 
 indorsements by 125 
 
 rights of partner indorsing Note of the firm . . . 294 
 notice to, when necessary, and how . . . . 294, 367 
 
 presentment for payment, by or to 239 
 
 death of partner, effect of 125, 255, 256 
 
 PAYEE, 
 
 how described 35, 36 
 
 on Notes payable to order 36 
 
 on Notes payable to bearer 36 
 
 who competent, or not 79, 84, 87, 99 
 
 when blank for name of 37 
 
 fictitious payee 38 
 
 duties and obligations of 106-112,115 
 
 PAYMENT OF NOTES. 
 
 (See Presentment for Payment.) 
 
 must be fixed, and in money 20, 21 
 
 must be absolute 22-24 
 
 must not be payable out of a particular fund . . . .26 
 
 must be at a fixed time 27, 28 
 
 what is a fixed time for payment 27-29 
 
 when a Note is absolute or conditional payment of a 
 
 debt 104, i05, 405 
 
 delivery up of Note payment 106,112 
 
 in what coin or currency 389 
 
 in case of debasement of coin or currency . . . 390-400 
 by maker, when good or not . . . . 373 - 384, 386 - 388 
 
 by indorser, when good 400-402 
 
 by whom generally to be made . . ' ■ • .374 
 
 to whom to be made 375-378,381 
 
 in cases of forgery of signatures 379-381 
 
 in cases of lost or stolen Notes 382 
 
 at what time payment to be made 384 
 
 partial payments, effect of 386 
 
 mode of payment 389-400 
 
728 INDEX. 
 
 ' Section 
 
 PAYMENT OF NOTES, Continued. ' 
 
 when a Note \s absolute, and when a conditional pay- 
 ment . "^ . . . . 104,105,117,404,438 
 receiving part payment, effect of, as to other parties . . 422 
 receipt, whether party on payment may insist on it . . .452 
 proceedings on non-payment of a Note .... 297 - 355 
 payment in Bank-notes, when absolute or not . 119, 389, 500 - 502 
 
 PENCIL SIGNATURES 
 
 to or on Notes in, effect of 11 
 
 PENNY-POST, 
 
 when notice good sent by 323 
 
 PLACE 
 
 of making Notes 49 
 
 of payment of Notes 49,50,227-230,243 
 
 of presentment for payment 227 - 238 
 
 (See Presentment foe ^Payment.) 
 
 POLITICAL OBSTRUCTIONS AND CIRCUMSTANCES, 
 
 when they will excuse non-presentment of Note . 205, 257, 261 
 
 POSSESSION OF NOTES, 
 
 when evidence of title 381 
 
 POST. (5eeMAiL.) 
 
 notice by, when necessary or proper . . . 312,341-344 
 
 POSTDATING NOTE, 
 
 effect of 48 
 
 PRESENTMENT OF NOTES FOR PAYMENT, 
 
 at what time 200,207,211,212 
 
 must be on the day when due 200 - 202 
 
 of Notes payable at or after sight .... 207 - 209 
 
 of Notes payable on demand 207 - 209 
 
 months, how calculated 213 
 
 days of grace 213,215-225 
 
 difference of style 214 
 
 at what time and hours of the day 226 
 
 at what place 227-231,251,253 
 
 when demand at place dispensed with or not . . 227 - 231 
 when payable at one of two places, where to be demanded . 231 
 when payable at a bank, or either of two banks . 232 - 234 
 
 mode, in which payment to be demanded .... 235 
 
 when personally 236 
 
 when at domicile 235 
 
 when at place of business 235 
 
 when domicile changed 236 
 
 when maker has absconded 237 
 
 when domicile unknown 238 
 
INDEX. 729 
 
 PRESENTMENT OP NOTES FOR PAYMENT, Continued. '""'°° 
 in case of death by party ...... 253 
 
 ■what will excuse the want of due presentment . 205, 557-286 
 
 sudden illness 205, 257 
 
 absconding of maker . ' 205, 237 
 
 receiving Note near its maturity .... 265, 266 
 residence of maker being unknown .... 205, 264 
 
 malignant disease 205, 237, 290 
 
 moral or physical impossibility . . 205,257,261,263 
 
 war and interdiction of commerce . 205, 257, 261, 263 
 
 accident and irresistible force . . . . 205,257-259 
 public holidays and festivals .... 205, 221, 222 
 
 what will not excuse 286 - 296 
 
 not that maker is bankrupt .... 203, 204, 241, 286 
 
 not death of maker 254,256 
 
 not where the conduct, or acts, or words of indorser 
 
 are equivocal 287, 289 
 
 not that indorser knows that Note will not be paid 287-289 
 
 not that Note is lost or mislaid 290 
 
 not a parol agreement to postpone payment . . . 921 
 not that the Note is an accommodation Note . . 292 
 not that indorser has requested maker not to pay 
 
 the Note . . . 294 
 
 not that indorser is one of the firm, who are makers . 294 
 
 to whom to be presented 239, 251 
 
 in case of partnership 239, 255 
 
 in case of death of party .... 250,253,254 
 in case of bankruptcy 203, 241 
 
 mode of 242 
 
 personally 242 
 
 in writing 242 
 
 when Note lost or mislaid 245, 445 
 
 production of Note . . . .106-112,243,245,445 
 
 by whom presentment to be 246 
 
 by person in possession of Note . . . 243, 245 - 248 
 
 by person sui juris and compi'teiit 249 
 
 by agent or sub-agent 246 
 
 in cases of bankruptcy 249, 252 
 
 of marriage 249 
 
 of infancy 249 
 
 in cases of death of party .... 250, 253, 254, 256 
 
 in cases of partnership 250, 255 
 
 in cases of joint Notes 239, 255 
 
 of Notes not negotiable 247 
 
730 INDEX. 
 
 Section 
 
 PRIVILEGES OF PROMISSORY NOTES ... 7, 41, 42 
 PRODIGALS AND SPENDTHRIFTS, 
 
 parties to Notes 83, 84, 181 
 
 PRODUCTION OP NOTES, . 
 
 when necessary 243, 245 
 
 on payment 243, 24S 
 
 PROMISE, 
 
 whether in a Note the promise must be express ... 14 
 promise to pay Note, when a waiver of notice or not . 360-368 
 PROMISSORY NOTES, 
 
 definition of 1, 2 
 
 nature and requisites of 1-59 
 
 negotiable, when' or not 3 
 
 distinction between Notes and Bills 4 
 
 origin of 5, 6 
 
 origin of negotiability,, in England and America . . .6 
 privileges of . . . . . . . • 7, 41, 42 
 
 requisites of 8-59 
 
 must be in writing 9, 10 
 
 need not be negotiable 9 
 
 signatures on blank paper 10 
 
 may be in pencil 11 
 
 how signature on ........ 11 
 
 form of 12, 13, 57 
 
 what form sufficient 12,14,16 
 
 when by several persons 57 
 
 must contain an express promise to pay .... 14,. 15 
 
 ambiguous language, how construed 16 
 
 must be for payment of money only . . . .17-19 
 
 may be payable in any currency or denomination of money 17, 18 
 must be for payment of a fixed sum of money . . 20, 21 
 must be for absolute payment, and not conditional . . 22, 23 
 sufficient, if no condition or contingency on, or accompanying - 24 
 must not be payable out of a particular fund . . 25, 26 
 not material that fund is referred to, as the consideration . 26 
 
 must be payable at all events 27 
 
 what certainty as to time of payment sufficient . . .27-29 
 
 at death of party 27 
 
 at sight 29 
 
 after sight .29 
 
 on demand 29 
 
 on a particular festival, or known holiday . 30, 31 
 
 at a particular fair ■ .32 
 
 must be payable by a particular person . . . . 33, 34 
 
INDEX. T31 
 
 PROMISSORY NOTES, Continued. ^"°° 
 
 and to a particular person 33, 35 
 
 names of maker and payee must be on the face of . . 34, 35 
 
 or implied by law 36 
 
 payable to the order of a person 36 
 
 payable to the order of the maker 16, 86 a 
 
 payable to bearer 36, 43, 44 
 
 payable to a blank payee, good when blank filled . . 37, 38 
 
 payable when blanks may be filled 37 a 
 
 payable to a fictitious person, effect of . . . .39, 137 
 payable to a payee, whose name is forged . . . .39 
 
 statute regulations of 40 
 
 negotiability of 3, 41 
 
 not essential 3, 41 
 
 when negotiable 41, 43, 44 
 
 when not 41 
 
 effect of, when assigned to king or government ... 41 
 
 mode of negotiation of 43, 44 
 
 date of 45 
 
 how computed 45, 46, 47 
 
 effect of omission of 45 
 
 antedated 48 
 
 postdated 48 
 
 place of payment 49, 50 
 
 where in general payable 49 
 
 effect of being payable at a particular place . . .49, 50 
 
 value ;;eceived ol, 52, 53 
 
 not essential to be expressed 51 
 
 attestation of 54, 56 
 
 effect of 54 
 
 when sealed, effect of 55 
 
 by several person^ .57 
 
 when joint and several 57, 88 
 
 by principal and surety 57 
 
 when party is a surety or not 58, 59 
 
 when a guarantor or not 69 
 
 competency of parties 60-62 
 
 when trustees bound 61, 63, 69 
 
 when guardians bound 61, 63, 64 
 
 when executors and administrators bound . . . 61, 63, 64 
 
 when agents bound 65-71 
 
 when principal only bound 66-69 
 
 when partners bound . . . . . . . . 72, 73 
 
 when partners not bound 73 
 
732 
 
 INDEX. 
 
 PROMISSORY NOTES, Continued. 
 when corporations bound 
 who may be parties to, or not 
 
 infants 
 
 persons interdicted . . . . 
 
 persons under guardianship . 
 
 married women . . . . 
 
 aliens 
 
 alien enemies .... 
 
 persons insane .... 
 
 bankrupts . ■ . . . 
 rights and duties of parties to 
 
 of the maker .... 
 
 of the holder . . . 
 delivery up of, on payment 
 in what currency payable 
 rights and duties of parties on transfers of 
 
 on transfers by delivery 
 
 on transfers of Bank-notes 
 
 on transfers by indorsement 
 of Notes, payable to order 
 of Notes payable to bearer 
 when indorsement may be compelled 
 form of indorsement . . . . 
 
 in full 
 
 in blank 
 
 in pencil 
 
 by initials 
 
 by allonge 
 
 rights and duties of parties on indorsement 
 who competent to make indorsement 
 by whom indorsement may be made . 
 
 in case of bankruptcy 
 
 in case of marriage 
 
 in case of death of payee or holder 
 
 in case of trustee 
 
 in case of partnership . 
 to whom transfer may be made 
 
 to an infant 
 
 to a married woman . 
 
 to a person non compos 
 
 to cashier of a bank officially 
 ' to assignee of Notes not negotiable 
 
 to an agent .... 
 
 106 
 
 Section 
 
 74 
 
 . 61 
 
 76-82 
 
 . 83, 84 
 
 83 
 
 . 85-93 
 
 94, 96-98 
 
 94 - 100 
 
 . 101 
 
 102 
 
 . 103-116 
 
 104, 113, 114 
 
 106-115 
 
 ■112, 115, 243-245 
 
 . 115, 389-400 
 
 . 116-180 
 
 117-119 
 
 . 119 
 
 120 
 
 . 120 
 
 132 
 
 . 120 
 
 121, 122, 152 
 
 . 121 
 
 121 
 
 . 121 
 
 121 
 
 . 121, 151 
 
 123-127 
 
 . 123-125 
 
 123-125 
 
 . 123 
 
 124 
 
 . 124 
 
 125 
 
 . 125 
 
 126-132 
 
 . 126 
 
 126 
 
 . 126 
 
 127 
 
 128, 129 
 
 137 
 
INDEXi 733 
 
 PROMISSORY NOTES, Continued. ^°'"'°" 
 
 effect of assignment of non-negotiable Notes . 128, 129, 131 
 effect of assignment of, to the government . . 130 
 
 effect of indorsement by fictitious indorser . . .132 
 effect of indorsement of Notes payable to bearer . 132 
 
 when a person is deemed an indorser . . 128, 133, 134 
 when a person is deemed a guarantor . . 59, 133, 134 
 
 rights, duties, and obligations arising from indorsement . 135, 136 
 warranty of genuineness of Notes .... 135,379 
 warranty of competency of indorser . . . . 135 
 
 warranty of good title in indorser 135 
 
 warranty of competency of maker, and of due pay- 
 ment by him 135 
 
 warranty, on non-payment by maker and due notice, 
 
 that indorser will pay 135 
 
 blank indorsement, effect of 137,147 
 
 when Notes lost or stolen 137,138,140 
 
 indorsement, different kinds of 138 
 
 blank or full 138-140 
 
 general or restrictive .... 138,141-144,150 
 absolute or conditional . . . 138, 141, 149, 150 
 
 qualified 138, 141, 146, 147, 150 
 
 liability on, when enlarged .... 147, 148 
 
 guaranty by indorser 147, 148 
 
 when negotiable or not 147 
 
 by allonge 121, 151 
 
 time of transfer by indorsement, when material . 178-180 
 
 reindorsement, effect of 151 
 
 rights, duties, and obligations of indorsee . . . 153 
 
 Lex Loci, operation of, in cases of Promissory Notes 154 - 180 
 in cases of indorsements 171-177 
 
 consideration of . . , 181-197 
 
 ' Promissory Notes import a consideration, prima _/acJe . 181 
 
 in what cases necessary 181, 190 
 
 between what parties . . . 181,190-192,194-197 
 what consideration sufficient . . . . 183-186 
 
 what is a mere moral consideration .... 185 
 what a valuable consideration . \ . . . 186 
 
 failure in part of consideration 187 
 
 what consideration void or voidable . . . 188,189,193 
 
 presentment for payment of ..... 198-256 
 
 at what time 209, 207 - 209, 240 
 
 days of grace ...... 211,215-225 
 
 months, how calculated . 213 
 
734 
 
 INDEX. 
 
 PROMISSORY NOTES, Continued. 
 
 different styles .... 
 
 at what place 
 
 by whom presented 
 to whom presented 
 what will excuse want of presentment 
 
 what not 
 
 mode of presentment 
 at what time of day 
 how to partnership . 
 how in case of bankruptcy 
 how in case of death of party . 
 how in case Note lost or mislaid 
 in case of joint Notes 
 
 waiver of due presentment . 
 
 taking security, when it excuses 
 proceedings on non-payment 
 
 notice 
 
 notice, personal .... 
 
 notice by post .... 
 
 notice by packets .... 
 
 notice by messenger . 
 
 by whom notice is to be given 
 
 for whose benefit notice will inure 
 
 to whom notice is to be given . 
 to joint indorsers 
 to successive indorsers 
 
 at what place notice is to be given 
 
 at what time notice is to be given . 
 
 in what mode notice is to be given 
 
 notice, how effected by Lex Loci . 
 mode or manner of giving notice 
 
 personal .... 
 
 oral or in writing 
 
 by post 
 
 address of written notice 
 form and substance of notice . 
 omission or neglect to give notice 
 
 what will excuse 
 
 what is a waiver of notice . 
 
 what is proof of waiver of notice 
 matters of defence and discharge 
 
 when payment is a discharge or not 
 
 Section 
 
 214 
 
 . 227-235 
 
 246-250 
 
 . 241,251-253 
 
 236-238, 241, 257-270, 
 
 282-284 
 
 202-205, 241, 286-296 
 
 . 226, 241, 243 
 
 226 
 
 . 242, 245, 246 
 
 241, 252 
 
 241, 250, 253, 254, 256 
 
 . 243-245,445-451 
 
 . 256 
 
 . 271-281 
 
 . 282, 283, 285 
 
 297-354 
 320-323, 340 
 324, 327, 328, 336-344 
 . 377, 340 
 339, 340 
 301-306, 326,334 
 326, 334 
 307-312, 330,331 
 329 
 . 330-333 
 312-318 
 319-328, 335,336 
 319, 324 - 328 
 . 339 
 340 - 355 
 320, 323, 341 
 341 
 . 342-344 
 345 - 347 
 . 348-355 
 355 - 369 
 . 356-360 
 358-363 
 . 364-369 
 370-453 
 . 372-374 
 
INDEX. 735 
 
 Section 
 
 374-400 
 
 400, 401 
 
 375-382 
 
 379 
 
 386 - 388 
 
 384 
 
 386, 421 
 
 389-399 
 
 389-400 
 
 389 
 
 . 389 
 
 PROMISSORY NOTES, Continued. 
 
 by whom payment is to be made 374 
 
 when good by maker 
 when good by indorser . 
 to whom payment is to be made 
 forgery of indorsement, effect of . 
 payment, when not valid 
 at what time payment is to be made 
 partial payments, effect of . . . 
 
 mode or manner of payment 
 in what coin or currency 
 
 when by check 
 
 when by Bank-notes • . . . . 
 
 when by substituted Note 404, 405 
 
 satisfaction of Note (otherwise than by payment), what is, 
 
 or not . . . . 402, 403, 409, 425, 426, 429 - 444 
 
 extinguishment of Note, what is, or not 402, 403, 407, 425, 426 
 
 extinguishment by operation of law . . . 406, 407, 444 
 by bankruptcy 407, 428 
 
 extinguishment by act of party 408, 409 
 
 as to the maker 400-411 
 
 by accord . . . 408 
 
 by release 400, 410 
 
 by higher security 400, 408 
 
 by covenant not to sue 400, 408 
 
 by substitution of a new debt or security . . .408 
 
 by taking collateral security . . . 400, 411, 426 
 
 extinguishment as to the indorsers 413-429 
 
 by giving time or new credit to maker after Note is 
 
 due 413,414 
 
 when such agreement valid, or not . . . 414-418 
 when giving time not an extinguishment . . 415-419 
 what parties discharged by giving time, or not . . 420 
 
 effect of giving time to one joint maker or indorser . 421 
 effect of giving time in cases of accommodation Note . 418 
 effect of receiving partial payments . . . 380, 422 
 
 release, effect of ... . 423 - 425, 430 - 435 
 
 what parties discharged thereby, or not . . .423 
 
 release of one joint maker or indorser . . 425, 435 
 
 composition by holder, effect of . . . 426, 427 
 extinguishment or satisfaction of Note by the foreign 
 
 law 430-445 
 
 release or other discharge, effect of, as to other 
 
 parties 430-435 
 
736 INDEX. 
 
 Section 
 PROMISSORY NOTES, Continued. 
 
 compensation, or set-off, in foreign law, effect of . . . 437 
 
 novation, effect of 438 
 
 confusion, effect of 439-444 
 
 guaranty of Promissory Notes ..... 454 - 486 
 
 {See Guaranty.) 
 
 PROTEST OP NOTES, 
 
 not necessary by our law 297 
 
 is necessary by foreign law 298 
 
 no acceptance supra protest of Notes .... 453 
 
 PURCHASER OF NOTES, 
 
 who is deemed a Jona _/Zrfe purchaser . . . . 195 
 
 effect of Notes being overdue when purchased . . .190 
 
 Q. 
 
 QUALIFIED INDORSEMENTS, 
 
 what are 138, 146, 147, 150 
 
 R. 
 
 RATE OF EXCHANGE 396, 397 
 
 RECEIPT, 
 
 whether party may, on payment, insist on a receipt . . 462 
 
 REINDOR!^EMENT OF NOTES, 
 
 effect of 15 
 
 RELEASE, 
 
 effect of 408,423-426 
 
 parol release, effect of 408 
 
 of maker, effect of as to other parties . . . 409, 423, 425 
 
 of joint maker 409, 423, 425 
 
 of indorser 423 
 
 of prior parties, effect as to subsequent parties on the Note 423 
 
 of subsequent parties, effect as to prior parties . . . 423 
 
 effect of, as to accommodation parties 423 
 
 effect of, by foreign law 429-435 
 
 RESTRICTIVE INDORSEMENTS, 
 
 what are 138,141-145,151 
 
 S. 
 
 SATISFACTION OF NOTE 402, 403 
 
 distinction between satisfaction and extinguishment of 
 
 Note 403,409,425,426 
 
INDEX. 737 
 
 SATISFACTION OF NOTE, Continued. ^'''"' 
 
 what is a satisfaction of or not . 402, 409, 425, 426, 429-445 
 
 Note of the maker or of a third person, when a satisfaction 
 
 or not 104, 404, 408, 438 
 
 what is a satisfaction of Note in the foreign law . 430 - 445 
 
 SECURITY, 
 
 receiving security by indorser, when a waiver of due pre- 
 sentment or not 278, 281 - 283 
 
 collateral security, effect of taking .... 282, 283 
 
 collateral security, effect of Note being received as . . 284' 
 
 SHIPS, 
 
 when notice of dishonor may be sent by . . . .337 
 within what time 337 
 
 SIGHT, 
 
 Notes payable at or after .... 29, 30, 207 - 209 
 when due and payable 207 - 209 
 
 SIGNATURE, 
 
 how made to a Note 11 
 
 how to indorsement ■ . ■ . . . ■ . 121 
 by initials 121 
 
 STAMPS ON NOTES 40 
 
 STYLE, NEW AND OLD 214 
 
 SUB -AGENT. (Sea Agent.) 246 
 
 presentment for payment by 246 
 
 SUCCESSIVE INDORSEMENTS. (See Indorsements.) . 151 
 
 SUNDAY, 
 
 not a business day 219-223,321 
 
 SUPRA PROTEST, 
 
 no acceptance supra protest allowable on notes . . . 453 
 
 SURRENDER OF NOTE. (See Delivery up of Note.) 
 
 duty of party on payment . . 106-112,243-245,445 
 
 T. 
 
 TIME, 
 
 agreement to give time, effect of . . . . . 413-422 
 when it discharges other parties or not . . . 413-422 
 
 when agreement valid 413, 414 
 
 when not valid 415 
 
 when agreement discharges an indorser, or not 413, 414, 416, 417, 
 
 419,420 
 effect of agreement as to accommodation parties . . . 418 
 effect of, when made by holder with one joint maker or 
 
 indorser 421 
 
 47 
 
7S'8 INDEX. 
 
 • Section 
 
 TIME, Continued. 
 
 notice of dishonor, time of 315,319-340 
 
 (See Notice.) 
 
 months, how calculated 213 
 
 time on Notes con^)uted exclu^iye; of d^y of date . . .211 
 TITLE TO NOTES, 
 
 what is notice of defect of title or no . . . . 197 
 
 TRANSFERS, 
 
 rights, duties, and obligatipns of parties on transfers of 
 
 Notes . . . 116-180 
 
 (See Indorsement.) 
 on transfers by delivery . . '. . . . 117-120 
 
 on transfers by indorsement 120 
 
 form of transfer 121,122 
 
 rights and duties and obligations of indorsers . . .123 
 
 by whom transfers may be made . . . . 120-125 
 
 to whom transfers may be made 126 
 
 of transfers by officers 127 
 
 by Cashiers of banks 127 
 
 (See Capacity and Competency.) 
 TRUSTEES, 
 
 when bound by a Note 63, 64 
 
 V. 
 VALUE RECEIVED, 
 
 when required to be expressed on Note or not . . 51-53 
 
 W. 
 
 WAIVER OF DUE PRESENTMENT . . . 271-280,295 
 (See Presentment.) 
 effect of agreement of, before maturity of Note . . 271-273 
 
 effect of, after maturity of Note 274-278 
 
 what sufficient proof of 276,279,280 
 
 when not binding ,...■... 275-278 
 promise to pay Note, when a waiver .... 279, 280 
 of notice. (See Notice.) 
 
 what is sufficient 358 - 368 
 
 what is not 364 - 366 
 
 what is sufficient prqof of waivpr .... 364 - 366, 868 
 
 by guarantor, of his rights 486 
 
 WAR, 
 
 effect of, on rights of parties 94, 98, 100 
 
 (See Ai/iEN Enemies.) 
 
INDEX. 739 
 
 WAR, Continued. ^"<"' 
 
 when an excuse for want of due presentment of Notes 
 
 writing' '"''°''"' 205,257,262 
 
 Notes must be by 10 H 
 
 Notes need not be in ink H 
 
 Notes good in pencil _ U 
 
 University Press, Cambridge ; Printed by Welch, Bigelow, and Company.