(Snrnpll ICaui ^rijonl 2jtbtati| Cornell University Library KF 957.C43 1889 A treatise on the law of bills of exchan 3 1924 018 851 992 The original of tiiis book is in tine Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/cletails/cu31924018851992 A TREATISE LAW OF BILLS OF EXCHANGE, PEOMISSORY NOTES AND CHECKS. BY WAYLAND E. BENJAMIN, A. M., OV THE NKW YOfiK BAB. ADAPTED FROM THE. ENGLISH WORK OF HIS HONOR JUDGE CHALMERS. SECOND AMERICAN KDITION. CHICAGO: CALLAGHAN & COMPANY, 1889.- Entered according to Act of Congress, In the year 1880. By W. E. Benjamin, In the Office of the Librarian of Congress, at Washington, D. C. Stereotyped and Printed by the Chicago Legal News Company. PEEFAOE TO THE EIEST AMEEIOAN EDITIOK "With the English work before him, the editor has en- deavored, as desired by the publishers, "to rewrite the book as Chalmers would have written it had he been an Ameri- can." Accordingly, while in other particulars caiTying out the plan of the author (see Introduction), the Articles, Ex- planations, etc., are statements of the law of America — ^the weight of authority where the States are in conflict, indi- cating authorities directly opposed by a citation of cases contra, while the important modifications or limitations of the prevailing rule of law, either in England or America, are concisely stated in the notes. The book has thus been thoroughly rewritten, and the work of the editor incorpo- rated with that of the author. This is an innovation which, it is hoped, will meet the approval of the profession. For convenience of reference, each article is numbered the same as in the English publication. The cases have been selected with a view to the requircr ments of the student as well as the practicing lawyer. The student will find, as a general rule, that where the citations are numerous, the first case cited contains the clearest and fullest statement of the principle of kw which it is cited to support, and for the lawyer has been selected that case . from each State which, being the latest exposition of the law, contains the fullest citation of authorities. (i) li EDITOR'S PREFACE. ilTo thing of value to the profession lias been omitted while over fifty pages of new matter have been added to the text, and the result of much labor and thought is now submitted to the profession, trusting that the difBculty of codifying the law of America on this or any other subject, will be duly appreciated. W. E. B. St. Paul, Minn^, May, 1881. PREFACE TO THE SECOND AMEEIOAN EDITIOIsr. Since tlie publication of the first American edition of Chalmers' Digest, the "Act to codify the law relating to Bills of Exchange, Cheeks and Promissory Notes" (45 and 46 Yict. c. 61) has been passed. This Act, as implied by its title, is, in the main, merely declaratory, the propositions of the Act having been taken word for word, in most cases, . from the propositions of the Digest. This Act is, as yet, the only enactment codifying any branch of the common law upon the English statute book. The last edition (1 886) of the Digest consists of the Bills of Exchange Act with notes by Judge Chalmers. In the present edition I have ca-ref ully revised the text of the former in the light of the later English and Ameri- can decisions. "While this required an examination of a large number of cases, but comparatively few of them are cited, as I found but little change in the rules of law and deemed it inconsistent with the plan of the work to encum- ber it with a mass of citations to the same point. I have adhered closely to the method of treatment fol- lowed by Judge Chalmers, whose Digest [ found in my experience as a teacher specially adapted for use in the class- room ; and in the preparation of this edition, I have kept constantly in mind the continued use of the work as the text-book for class instruction in many of our law schoolsj (iii) iv EDITOR'S PREFACE, SECOND EDITION. and have added sucli illustrations and cases as seemed most instructive to the student. At the, same time I believe the practitioner who desires a ready clue to points and authori- ties on the Jaw peculiar to commercial paper, ^v'ill find the field fully covered by this little volume. I have taken a liberty with the title in this edition which I believe is justified by the fact that the term "Digest," as generally used in this country, does not properly describe a treatise like the present; and because this is in no way a reprint of an English law book annotated with American cases, but more nearly a new work which aims to state the law as established by our courts upon the plan adopted by Judge Chalmers, to whom the larger share of credit is due for the special value of the present work. W. E. B. New Yoek City, February, 1889. CONTENTS. PAGE. iNTEODaCTION ix Table of Oases Cited xxi Table of English Cases Overeuled, etc xlix List of Abbebviations Iv CHAPTER I. FoBM and Inteepeetation of Bills. RTS. 1 Bill of exchange defined 1 2-9 Parties 2 10 Order to drawee 9 11-13 Sum payable 15 14 Expression of consideration 21 15-17 Date of making 22 ] 8-20 Time of payment 35 21-22 Place of making and payment 34 23 Inchoate bills 35 24 Inland and foreign bills 38 25-30 Bill of exchange drawn in a set 39 31-40 Acceptance of bill of exchange 42 41-48 Acceptance for honor supra protest 53 49-52 Signature 56 53-55 Delivery 58 56-58 Construction ; 63 59-60 Conflict of laws 68 CHAPTER II. Capacity and Authoeitt of Paeties to a Bill. 61-68 Capacity '73 70-80 Authority 77 81 Forgery, etc 90 (V) CONTENTS. AKTS. 83 83-89 90 91 93-93 94 95-96 97 98-100 103-105 106-ior 108-124 135-138 139-130 131-135 136-139 141-144 146 147-157 158-159 160-171 173 173-174 175-180 181-183 183 184-187 188-303 303-305 306 CHAPTER III. CONSIDEEATION. FAQE. Value defined 94 Holder for value without notice 96 Accomrnodation bill 105 Want of consideration 106 Failure of consideration 108 Fraud or duress 110 Illegal consideration Ill Presumption of value 113 CHAPTER IV. Tkansfee. Transmission by act of law 115 Transfer by assignment 117 Transfer by negotiation 130 Modes of negotiation 133 Who may negotiate a bill 135 To whom a bill may be negotiated 138 Time of negotiation 139 Rights acquired by negotiation 145 Rights of action and proof 148 CHAPTER V. Duties of the Holdee. Effect of omission 153 Presentment for acceptance 153 Duties as to qualified acceptances 160 Presentment for payment to charge drawer and ' inddrsers , 160 Presentment for payment to charge acceptor or maker 174 Presentment for payment to charge stranger to bill 176 Noting and protest 177 Protest to charge drawer and indorsers 179 Protest for better security , 180 Presentment when there is a reference in need 180 Notice of dishonor to charge drawer and in- dorsers 183 Notice of dishonor to charge acceptor, maker or stranger 206 Duties on receiving payment 209 CONTENTS. vu CHAPTER VI. : Liabilities of Parties, arts. page. 308-209 Drawee and drawer 210 210 Drawee and holder.... 212 211-214 Acceptor and holder 214 215-222 Drawer or indorser and holder 218 223-226 Transferor by delivery and transferee 226 227-2^8 Acceptor sMjora pj-oiss* and holder, etc 229 229 Accommodation party and person accommo- dated 230 CHAPTER VII. Discharges. 230-231 Discharges in general 232 232-237 Payment in due course 234 238 Coincidence of right and liability 244 239-240 Waiver or cancellation 245 241-244 'Pa.yment ior honor supra protest 247 245 Discharge of surety by dealings with principal 249 246-250 Alterations 253 251 Renewal 260 CPIAPTER VIII. 252-253 Limitations 262 CHAPTER IX. Provisions Peculiar to Checks. 254 Check defined 267 256-259 Duties of holder 268 260-361 Payment 272 263 Donatio mortis causa 274 264 Property in paid check 275 CHAPTER X. Provisions Peculiar to Promissory Notes. 271 Note defined. 276 372-278 Form and interpretation 276 281-385 Transfer..; 281 286-287 Liabilities of maker..' 283 INTRODUOTIOK [To FiEST Edition of Chalmek's Digest.'] As far as form goes, tlie present Digest is modeled on the Indian Codes, the main idea of which is as follows. A general proposition is first laid'down. Qualifications or less obvious deductions, when of sufficient itaportance, are next stated in the form of Explanations. Then come the Excep- tions, if any. These abstract propositions are illustrated, when necessary, by examples showing their application to particular states of fact. Each general proposition, with its accompanying ''explanations" and "exceptions," forms a separate article. The same plan has been adopted by Sir James Stephen, in his Digests of the Law of Evidence and of the Criminal Law, and by Mr. F. Pollock, in his Digest of the Law of Partnership. As regards the subject of cod- ification generally, and its prospects in this country, I have little or nothing to say. Any reader interested in the matter, will find it fully discussed by the above mentioned authors in the Introductions to the works referred to. Sir James Stephen most certainly cannot he open to the charge of being a mere theorist. He has codified for India, with admirable success, both the Law of Contract and the Law of Evidence, and has shown that in competent hands like his, codification is not an unpractical dream, but a working and highly beneficial reality. These writers have also pointed out that Digests in the present form may be to some extent helpful in preparing the way for codification at home. In the meantime, I hope the form adopted may 'Matter in brackets is from the Introduction to the third edition. (ix) X INTRODUCTION. be' found convenient for a text-book. As regards details of plan I must offer a few words of explanation. For the most part, provisions applicable to Bills of Ex- change are equally applicable to Promissory Notes and Checks; therefore the term '"Bill" is used in the articles of this Digest as meaning and including Promissory itfote and Check, as well as Bill of Exchange, When a provision does not apply equally to Notes and Checks the full expres- sion "Bill of Exchange" is used, and the distinction is pointed out in a note. The provisions peculiar to Promis- sory Notes and Checks are collected in two chapters at the end of the book. This plan has been adopted, first, in order to economize space, and secondly in order to give a clearer and more consebutive account of a Bill of Exchange, which is the typical and most important negotiable instru- iment. As to the second reason, I^ould refer to the re- marks of Mr. Justice Story, in the preface to his work an Bills of Exchange. Subject to the explanation given above, I hope this extensive meaning given to the word "Bill" is Justified, and will not lead to confusion. There is to some extent authority for th^ course pursued. In the Stamp Act, ISYO', "Bill of Exchange" is defined so as to include Check, and in the reported cases on check-; the instrument is frequently termed a "Bill," as indeed for most purposes it is. In the older cases on promissory notes the instrument is called indifferently a Bill or Note. To save, space letters are substituted for names "in the Illustrations, and to facilitate reference and comparison the same letter is always used to denote the same party to a Bill or Note. Thus' A. is alwajs used for the drawer of a bill; B. for. the drawee or acceptor of a bill or the maker of a note; C. for the payee and tii-st indorser of a bill.or note. When a case is quoted, the date is given. This avoids the necessity of referring to more than one report ; and where cases are in conflict, it enables the reader to see at a glance which is the most recent and therefore the most authorita- tive. Where a case directly decides the point it is quoted INTRODUCTION. xi to establish, the name is given simply; but when it only decides the point by implication or is relied on as an analogy, or when it merely contains an obiter dictum on the subject, the name is preceded by the mark cf. (compare). Anything like a detailed discussion of doubtful cases, or a history of past controversy on points which may now be considered as settled, would be foreign to the purpose of a, work like this ; but I have added to the ordinary Index of Cases a list of the more important cases which have been overruled, doubted or explained nominatim, see p. xlix. The list has no pretension to completeness, but perhaps it may be useful as far as it goes. Several of the articles go beyond the logical limits of a digest of a special subject, inasmuch as they state propositions which apply not only to bills, but to all simple contracts alike. In some few cases of frequent occurrence, this is done in the hope that the book may thus be more useful to men of business, who have not other books of reference at hand. In the majority of cases it is done because doubts have arisen as to whether bills were or were not governed by the ordinary rules. In a Code all such articles would be superseded by a single proposition to the effect that when the contrary is not expressed the ordi- nary rules of law applicable to simple contracts apply to bills. In an unauthoritative Digest, such a proposition seems merely nugatory. It is almost needless to point out, that the similarity be- tween Indian Codes and a Digest like the present is merely resemblance in form. There all analogy ends. In a Code the subject in hand is treated completely and finally. A Code states methodically the law as the legislature is of opinion that it ought to' be. This Digest is an attempt to state methodically the law as it is. In a Code, propositions and illustrations are alike authoritative. .In this Digest, the illustrations taken from decided cases are alone authori- tative. The genera] propositions are ' only entitled to weight in so far as they are complete and legitimate induc- tions from decided cases which are unquestioned v law. A INTRODUCTION. genera] proposition, supported by reference to cases, merely amounts to a verifiable hypothesis as to what the law is. In the theory of English law, there exists m nuUhus a com- plete set of principles applicable to every conceivable state of facts that can arise. Theoretically the judges do not' make law; they only interpret it. They are merely the con- ductors by which the principle is brought down from the clouds and made available to men. Practically, however, their functions are frequently and of necessity legislative. If a wide subject be investigated systematically, four states of the law will be found to exist. First, the law on a given point may be reasonably certain. All authority, or the great weight of authority, may be in favor of a given prop- osition. Secondly, a proposition on a given point can only be stated as probably holding good. For instance, it ihay rest merely on unchallenged obiter dicta, or there may be a decision in f9,vor of it, and weighty obiter dicta opposed to it. Thirdly, the law on a given point may be uncertain. Decisions may be in direct conflict, or again there may be a decision in point which has never been directly questioned, but the ratio decidendi of which seems entirely opposed to the principle of later cases. Fourthly, there may be an entire absence of authority on a given question. Such being the state of the materials available for foi-ming a Digest, it is clear th^t if the subject is to be treated method- ically, many propositions can only be stated tentatively. Many of the articles, therefore, are qualified with a (prob- ably) or a (perhaps), and the reason of the qualification ia then stated in a note. On doubtful points frequent reference is made to Ameri- can cases and Continental Codes and writers. In mercan- tile matters, when the law is uncertain or authority want- ing, there is an increasing tendency to refer to Foreign Codes and laws in order to see how other nations have solved the difliculty. This is especially the case as regards negotiable instruments, the most cosmopolitan of all con- tracts. Mr. Justice Story, in his judgment in Swift v. INTRUDOCTION. xiii Tyson (16 Peters, 1), gives forcible expression to the prin- ciple. He says, " The law respecting negotiable instra- ments may be truly declared, in the language of Cicero, adopted by Lord Mansfield in ZnJce v. Zyde (2 Burr. 887), to be in a great measure, not the law of a single country only, but of the commercial world. Ifon erit lex alia Eomse, alia Athensis, alia nunc alia post hac, sed et apud omnes gentes et omni tempore una eademque lex obtiriebit.'' [Lord Blackbnrn, in a Scotch appeal concerning a cheek, lays down a similar rule. " There are," he says, " in some cases dififerences and peculiarities which, by the municipal law of each country, are grafted on it, but the general rules of the law merchant are the same in all countries. * * * We constantly, in the English courts, upon the question what is the geneial law, cite Pothier, and we cite Scotch cases when they happen to be in point, and so in a Scotch case, you would cite English decisions, and cite Pothier or any foreign jurist, provided they bore upon the point." '] An American decision, it is needless to say, is not a bind- ing authority in this country, but, if well reasoned, it is always considered with respect by our courts.'' Many of the American judgments are very valuable as expounding and testing the principles of English decisions. An English case there, like an American case here, is only an authority in so far as it appears to be a correct deduction from the general principles of common law and the law merchant which prevail in both countries alike. When the subject matter of an article of this Digest is dealt with by' the French " Code de Commerce," or the " German General Exchange Law, 1849," their respective provisions are compared. If they agree, a mere reference to the corresponding sections is given. If they differ, the points of difference are given in a note. A vast number of the bills circulated in England are foreign bills. It seems [^McLean v. Clydesdale Bank (li 83), 9 App. Cas. at p. 105.] hSee per Cockburn, C. J., in Saramanga v. Stamp (1880), 5 C. P. D. at p. 803, C. A.] xiv INTRODUCTION. useful, therefore, to indicate the main point of divergence which may give rise to a conflict of laws. The French Code is essentially important, as it forms the basis of most of the continental Codes. [For instance, the Belgian Code, of 1872, enacts for Bel- gium the provisions of the French Code regarding bills and notes, with a few modifications and the addition of three or four articles which embody the result of French judicial decisions on the construction of the Code, Egypt, Greece and Turkey have, I believe, adopted the provisions of the French Code in their entirety. The Spanish Code of 1830, and the Portuguese Code of 1833, are mainly founded on the French Code de Commerce. Until 1883 the Italian Commercial Code was closely modeled on the French, but the new Italian Code, which came info force in 1863, has departed from the French model as regards bills and notes, and has substantially adopted the provisions of the German Exchange Law.J French; law is worthy of attention in another respect. In the absence of English authority, our Courts have, in some instances, consciously 'taken it as their guide. (See per Parke, B., in Foster v. Bawher, 6 Exch. 853.) The' " Code de Commerce," to a great extent, embodies and enacts the opinions of Pothier, whose authority, says Best, C. J. (in Cox V. Troy, 5 B. & Aid. 481), "is as high as can be had next to the decision of a Court of Justice in this country." On doubtful points not dealt with by the Code, reference is occasionally made to Pothier, and also to the exhaustive treatise of M.Nouguier (Des Lettres de Change and Des Effets de Commerce, 4th ed., 1875), which gives the latest results of French law. The German General Exchange Law of 1849 (slightly modified 1869), is important in two respects. First, it is the most elaborate and carefully wQrked out of the Foreign Codes. Secondly, it is an international and not merely a national Code. All the German states, including Austria, have adopted it, and the terms of its adoption are these:. INTSODUCTION. xv Each state is at liberty to supplement it by additional laws of its own, but such laws are not in any way to contradict or override it. M. Nouguier, in the work above referred to, gives in French the text of the Exchange Law, and also the various supplementary laws passed by the different states. It would probably be very advantageous to the commer- cial world if this principle of an international Code could be further extended. The difficulties in carrying it out do not seeiu, insuperable, though, doubtless, they would be great. The provisions of such Code would have to be set- tled by agreement, and then each state would enact it for its own territory. In the case of England, it would probably be necessary to confine its opeiation to foreign bills, that is to say, to bills drawn or pa;yable abroad. Our law as regards foreign.bills, does not widely diverge from the laws of other commercial countries, and it diverges chiefly by allowing greater latitude than is adopted in practice. [Occasional reference also is -made to the Indian Code (Act XXVI, of 1881, as amended by Act II, of 1885), which in substance reproduces the English Law as it stood in 1881.J In a work like the present, it is thought itwould be waste of space to carry references to foreign laws or authorities any further, but it may be worth while to mention where they can be found. Eorchardt (Vollstandige Sammlung der geltenden Wech- sel und Handels Gesetze aller Lander, 1871), collects the statutory enactments of all countries relating to Bills of- Exchange. Part I gives a Gern\an translation, Part II the original text. More than forty countries have codified their law on this subject; in fact, England and the United States seem to be the only civilized nations which have not done so.^ Since Borchardt's work was published the Egyp- tian Commercial Code has, I believe, been re-east. I do not know how far the provisions relating to bills have been altered. M. Nouguier in a supplementary chapter to his work on Bills (Des Lettres de Change, 1875), compares the ['Codified now in England; and ^ bill to codify the law of commercial paper is now pending in Congress. — ^Ed.] rvi JN TROD UCTION. laws of the chief commercial nations with the French Code. M. Masse's " Droit Commercial et des Gens" is a valuable work on the conflict of laws — especially as regards Bills. The latest American book, I believe, is Daniel on Negotia- ble Instruments, 1877. Story on Bills of Exchange," and Parsons on Notes and Bills, are also standard American works. Thomson on Bills of Exchange, is the standard book on Scotch law which, it mast be remembered, differs materially from the English. ' The origin and history of Bills of Exchange and other negotiable instruments are traced by the present Lord Chief Justice in his judgment in Goodwin v. Jioiarts (1875), 10 L. R Ex., pp. 346-358. It seems that bills^ were first brought into use by the Florentines in the twelfth century. From Italy the use of them spread to France, and event- ually they were introduced into England. . The first English reported case in which they are mentioned is Martin v. Boure (Cro. Jac. -6), decided in 1603. At first the use of Bills of Exchange seems to have been confined to foreign bills between English and foi-eign merchants. It was afterwards extended to domestic bills between traders, and finally to bills of all persons whether traders or not. The law throughout has been based on the custom of mer- chants respecting them; the old form of declaration on bill used always to state that it was drawn "secundum usum et consuetudinem mercatorum." In the time of Chief Jus- tice Holt, a controversy arose between the courts and the merchants, as to -whether the customary incidents of nego- tiability were to be recognized in the case of promissory notes. The djspute was settled by the stat. 3 & 4 Anne, c. 9, which vindicated the custom and confirmed the nego- tiability of notes (p. 349). Again, in 1873 the Court of Queen's Bench were of opinion that documents other than bills and notes could not be endowed by custom with the incidents of negotiability. But the efficacy of custom was again upheld by the Exchequer Chamber in 1875, in Goodwin v. Roba/rts, where it was determined that foreign INTRODUCTION. xvii script might be rendered negotiable by cnstom, so as to pass with a good titl e, and frea from all equities to a hona- fide purchaser. The court then say (p. 356), " While we quite agree that the greater or less time during which a custom has existed may be material in determining how far it has generally prevailed, we cannot think that if a usage is once shown to be universal it is the less entitled to prevail, because it may not have formed part of the law merchant as previously recognized and adopted by the Courts." The House of Lords approved the decision, 1876. The results of this formation of the law by custom are instructive. A reference to Ma.rius' treatise on Bills of Exchange, written about 1670, or Beawes' Lex Mercatoria, written about 1720, will show that the law, or perhaps rather the practice, as to Bills of Exchange, was even then pretty well defined. Comparing .the usage of that time with the law as it now stands, it will be seen that it has been modified in some important respects. Compar- ing English law with French, it will be seen that, for the most part, where they differ, French law is in strict ac- cordance with the rules laid down by Beawes. The fact is, that when Beawes wrote, the law or practice of both nations on this subject was uniform. The French law, however, was embodied in a Code by the " Ordonnance de 1673," which is amplified but substantially adopted by the Code de Commerce of 1818. Its development was thus arrested, and it remains in substance what it was 200 years ago. English law has been developed piecemeal by judicial de- cision founded on custom. The result has been to work out a theory of bills widely different from the original. The English theory may be called the Banking or Currency theory as opposed to the French or Mercantile theory. A Bill of Exchange in its origin was an instrument by which a trade debt, due in one place, was transferred in another. It merely avoided the necessity of transmitting cash from place to place. This theory the French law steadily keeps in view. In England bills have developed into a perfectly xviii INTRODUCTION. flexible paper currency^ In France a bill represents a trade transaction; in England it is merely an instrument, of credit. English law gives full play to the system of ac- commodation paper; French law endeavors to stamp it out. A comparison of some of the main points of diver- gence between English and French law will show how the two theories are w^orked out. In England it is no longer ■ijecessary to express on a bill that value has been given, for the law raises a presumption to that eifect. In France the nature of the value must be expressed, and a false statement of value avoids the bill in the hands of all par- ties with notice. In England a bill may now be drawn and payable in the same place (formerly it was otherwise, see the definition of bill in Corayn's, Digest).' In France the place where a bill is drawn must be so far distant from the place whiere it is payable, that there may be a possible rate of exchange between the two. A false statement of places, so as to evade this rule, avoids the bill- in tlie hands of a holder with notice. As French lawyers put it, a Bill of Exchange necessarily presupposes a contract of exchange.^ In England (since 1765) a bill may be drawn payable to bearer [though formerly it was otherwise.]^ In France it must be payable to order; if it were not so, it is clear that the rule requiring the consideration to be expressed would be an absurdity. In England a bill originally payable to order becomes payable to bearer when indorsed in blank. In France an indorsement in blank merely operates as a pro- curation. An indorsement, to operate as a negotiation, must be an indorsement to order, and must state the consideration; in short, it must conform to the conditions of an original draft- In England, if a bill be refused acceptance, a right of action at once accrues to the holder. This is a logical consequence [' " A bill of exchangre is when a man rakes money in one country or •city upon exchange, and draws a bill whereby he directs another person, in another country or city, to pay so much to A. or order for value re- ceived of B., and subscribes it."] P This rule is said to be now obsolete, but the Code remains unaltered.! P See Stewart v. Hodges (1.69l2), 12 Mod. 36.] INTRODUCTION. six of the currency theory. In France no cause of action arises unless the bill is again dishonored at maturity; the holder, in the meantime, is only entitled to demand security frpm the drawer and indorsers. In England a sharp distinction is drawn between current and overdue bills. In France no such distinction is drawn. In England no protest is required in the case of an inland bill, notice of dishonor alone being sufficient. In France every dishonored bill must be pro- tested. Grave doubts may exist as to whether the English or the French system is the soundest and most beneficial to the mercantile community, but this is a problem which it is beyond the province of a lawyer to attempt to solve- M. D. C. TABLE OF CASES CITED. Abbott r>. Bayley, 74. v. McElroy, 265, 266. v. Hendricks, 22. Abel V. Sutton, 90. Abrey v. Crux, 59, 64. 65, 66, 284, 246. Aokerman v. Ehrensperger, 223. Adams v. Adams, 105. V. Blethen, 124. V. Boyd, 161. V. Cordis, 224. V. King, 7. ». -Wright, 189. Adansonia Co., in re. 77, 79. Agra Bank, in re, 211, 213, 273. V. Leighton, 110, 148. Alabama C. M. Co. v. Brainard, 5, 49. Alcock V. Hopkins, 261. Alderson v. Langdale, 258, 259. Aldous V. Cornwall, 25, 256. Aldrich v. Grimes, 73. ' V. Smith, 255, 257. V. Stockwell, 21,108. Alexander ». Burchfield, 269, 270, 271. V. Parsons, 283. V. Sizer, 50,85. V. Thomas, 28. r: Wilkes, 63. Allaire v. Hartshorne, 107. Allen i>. Avery, 167. V. Bank, 242. V. Brown, 221. V. Davis, 96. V. Edmundson, 163, 173, 192, 193, 194, 201, 205. V. Kemble, 219, 226. 233. V. Kramer, 214, 270. v. Merchants' Bank, 164. v. Sea Assurance Co. , 3. V. Suydam, 152, 153. V. Tate, 117. Alliance Bank v. Eearsley, 80. Almy V. Winslow, 4, 68, 278. Alsager v. Close, 63, 111; American Bank v. Bangs, 255. American Emigrant Co. v. Clark, 13, 14, 65. Ames ». Colburn, 258. «. Merriam, 271. Ammidown v. Woodman, 30, 31. Amner v. Clark, 38. Amory v. Merewether, 141. ' Anoher v. Bank, 132. Anooua v. Marks, 61, 150. Anderson v. Drake, 169. V. Walter, 58, V. Weston, 90, 140. Anderton v. Beck, 176. Andrew v. Blachly, 30, 267. Andrews v. Bank, 269. V. Franklin, 26. V. Pond, 141 . V. Simms, 221 , 222, 223. Angle I). Insurance Co., 35, 146. Anglo-Greek Nav. Co., in re, 148. Angrove v. Tippett, 264. Aniba v. Teomans, 124. Anonymous, 5. Ansell V. Baker, 234. Appleton V. Parker, 261. Archer v. Bamford, 109. Archibald v. Argall, 260. Armani v. Castrique, 39. Armistead v. Armistead, 175. Armstrong v. Chadwick, 142, 202. V. Kirkpatrick,86. V. Christiani, 196. V. Gibson, 112. V. Harshman, 35. Arnold e, Camp, 260. V. Cheque Bank, 59, 91, 92, 93, 211, 241. V. Dresser, 165, 209. V. Jones, 256. V. Sprague, 21, 78. Asphitel V. Bryan, 147. Asprey v. Levy, 230. (xxi) TABLE OF CASES CITED. Astley V. Johnson, 104, 108. Atkinson v. Hawdon, 259. ^ Atlantic State Bank^®. Savery, 87. Atlas Bank v. Doyle, 113. Attenborbu^h v. Clarke, 99. V. Mackenzie, 138, 239. Attorney-Genl. ». Ins. Co., 267, 273. V. Pratt, 210. Attwood V. Crpwdjie, 99. V. Griffin, 256. V. Munnings, 82, 83. V. Rattenbury, 149, 150. Atwood 1). Weeden, 111. Auerbaoh v. Pritchett, 13. Aulton V. Atkins, 118. Aurora r. West, 112. Austin ». Birchard, ISO. V. Vandermark, 87. Avery v. Stewart, 33. Awde«. Dixon, 36, 38, 146. Ayer v. Tilden, 217, 218. Aylesford v. Morris, 96. Avmar v. Beers, 154, 158. V. Sheldon, 206, 222, 226. Ayrault v. Bank, 164. Ayr^s V. Doying, 62. V. Milroy, 62. Ayrey v. Fearnsides, 17. B Backhouse v. Charlton, 274. Backus V. Danforth, 81. Bacon v. Bicknell, 278. Bagnall v. Andrews, 198, 231. Bailey v. Bid well, 113. V. Bodenham, 185, 191, 270, 271. V. Dozier, 178. V. Porter, 167, 195. Bain V. Gregory, 194, 195. Bainbridge v. Hemingway, 109. Baird v. Underwood; 9. Baker, ex parte, 187, 193. V. Birch, 171. V. Collins, 21. «. Dening, 57. V. Martin, 231. Baldwin v. Bank, 164, 251. V. Hale, 233. V. Richardson, 205. V. Wade, 151. Balfour v. Ernest, 83. I). Sea Assurance Co., 94. Ball V. Powers, 24. Ballingalls v. Gloster, 222. Bancroft v. Hall, 189. Bange v. Flint, 125. Bank v. Archer, 44. V. Bender, 187. V. Bogy, 212. ' V. Butler, 164. V. Carneal, 163, 194, 195, 197. V. Curry, 36. V. Dandridge, 57- V, Daniel, 38. V. Douglas, 37. V. Ely, 44, 45. V. F. &M. Bank,. 242. V. Gilliland, 95, 114. V. Hollister, 163. V. Lawrence, 185, 187. V. Lyman, 79. V. Marsden, 44. V. Millard, 212. V. Mudgett, 168. V. Muskingum Bank, 79. V. Neal, 41. V. Orvis, 168. V. Patchin Bank, 79. V. Senior, 128, 237. V. Smith, 64, 281. V. Swann, 188, 195. V. Triplett, 152, 156. V. Vanderhost, 99. V. Vaughan, 184. V. Victoria Bank, 60, 153, 157. V. Walker, 252. V. Willard, 153. Bank of Bengal ». Fagan, 90. Bank of Commerce v. Union Bank, 215. Bank of England v. Anderson, 56. V. Newman, 227. Bank of Lindsborg v. Ober, 164. Bank of Metropolis f. Bank, 99, 258. Bank of N. C. v. Bant, 174. Bank of Penna., Estate of, 20. Bank of U. S. J). United States, 224. V. Smith, 165. Bank of Utica v. Bender, 201 . V. Smith, 129, 184. Bank of Van Dieman's Land v. Bank of Victoria, 60, 153, 157. Banks v. R. R. Co., 281. Bann v. Dalyell, 217. Banners. Johnston, 12. Barber v. Richards, 63, 97, 110. HI, 123. Barbour v. FuUerton, 282. Barclay, ex parte, 260. V. Bailey, 163. TABLE OF CASES CITED. Bardaley v. Delp, 95. Baring v. Clark, 181. Barken'. Parker, 38. V. Sterne, 23. Barlo-w v. Cong. Society, 86. V. Scott, 142. Barnard, in re, 50. Barnes I!. Stevens, 110. V. Vanghan, 162, 168. V. Ward, 21. Barnet v. Smith, 268. Barnett «'. Juday, 279. Barney v. Newcomb, 45. Barrett v. Evans, 187. V. Allen, 33. • Barrington in re, 117, 125. Barron v. Cady, 251. Barry Co. v. McGlothlin, 149. Bartholomew v. Hill, 205. Bartlett v. Benson, 129, 183. V. Hawley, 86. V. Robinson, 187. V. Tucker, 79, 84. Bartley v. Hodges, 234. Barton v. Baker, 172, 200, 201. Bartrum p. Caddy, 236. Bassett v. Haines, 44. Bastian v. Dreyer, 110. Bateman v. Joseph, 201. V. Railway, 76. Bates V. Keuipton, 120. Bathe v. Taylor, 253. Batson v- King, 231. Batty V. Carswell, 82. ■ Bawden v. Howell, 149. Baxendale v. Bennett, 35, 59, 62. Baxter r. Duren, 229. V. Little, 142. Bay*, (/'odd-ington, 100. Bayard v. Shunk, 227, 2^9. Beak v. Beak, 274. Beale v. Parish, IbS. Seals V. Peck, 193. Bean v. Tonnele, 235. Beard i>. Dedolph,ill9. Beardsley v. Hill, 16. Beaumont «. Greathead, 236, 238. Bechervaise v. Lewis, 148, 231. V. Wight, 106. Beebe v. Brooks, 162. Beech v. Jones, 231. Beecham v. Smith, '245, 277. Beeching- v. Gower. 167. Beemant'.Duck, 147, 216. Begbie v. Levi, 24. Belcher v. Cauiobell, 61. Belfast Banking Co. v. Doherty, 112. Belknap v. Nat. Bank, 240. Belli). Cafferty, 227. V. Dagg, 227. V. Frankis, 205. V. Ingestre, 62, 63. Bellamy v. Majoribanks, 275. Belleraire v. Bank, 165. Belshaw ». Bush, 234. Benedict v. Cowden, 255. Benjamin v. Tillman, 21. Bennetts. Parrell, 147. Bentinck v. Dorrien, 160. Benton v; Martin, 62. Berkshire Bank r. Jones. 172. Berridge D.Fitzgerald, 182,18' Berry v. Alderman, 114. Besant p. Cross, 65. Best V. Bank, 149. V. Crall, S>9. 100. Bevan v. Eldridge, 31. Beveridge v. Burgis, 201. Bickerdike 1'. Bollman, 198. Bicktord v. First Nat. Bank, 268, 272. V. Gibbs, 208. Bicknall v. Waterman,227. 221 Bipsenthall ». Williams, U. Bignold, ex parte, 171, 172, 2 Bigelow V. Colton, 64. 220. Billingham v. Bryan, 221. Billings ». Devaux", 210. Bird t. Bank, 164. Birmingham Banking Co., ea;j 56. Bishop, ex parte, 230. V. Chitty, 156, 176. V. Dexter, 162. V. Hayward, 138. V. Young, 284. Bissell V. Lewis, 45. V. R. R. Co.. 77. Black t'. Ward, 13, 14. Blackman v. Lehman, 27. Blaine v. Bourne, 132. 134. Blake v. McMillen, 169. Blakely v. Grant, 193. Blanohard v. Kaull, 84, 86. V. Stevens, 9.">, 99. Blanckenhagen i\ Blundeil, 8. Blankenship i>. Rogers, 199. Blenn v. Lyford, 237. Block V. Wilkerson, 43. Blodgett V. Durgin, 166. V. Jackson, 136. Blum V. Mitchell, 21. Boardman v Paige, 232. V. Spooner, 57. TABLE OF CASES CITED. Boehm v. Garcias, 47, 160. V. Stirling', 271. BoUes V. Stearns, 135. Bolton 1). Dugdale, 17. Bonar v. Mitchell, 179. Bond V. Farnsworth, 200. V. Storrs, 129. Bonney v. Bonney, 251. Booth V. Powers, 2.')8. i>. Smith, 161. Boozer «.. Anderson, 18. Borradaile v. Lowe, 205. Bosanquet v. Forster, 61. Bottomley v. Goldsmith, 113. Boughner v. Meyer, 112. Bouldin v. Page, 194. Bounsall v. Harrison, 140. Bourdin «. Greenwood, 7, 266. Bowen v. Newell, 31, 34, 267. V. Stoddard, 218. in re, J 01. Bowes V. Howe, 174. Bowles D. Lambert, 278. Bowling V. Arthur, 164. V. Flood, 251. V. Harrison, 187. Bowman «;. McChesney, 25. Boyce v. Edwards, 44, 45. Boyd p. Corbit, 148. V. Orton, 194. Boydell v. Harkness, 165. , Boylston Bank v. Richardson, 242. Boynton «. Pierce. 221. Boys, in re, 63, 98. Bradlaugh v. De Rin, 69, 71, 127. Bradlee v. Boston Glass Co., 84. Bradley v. Anderson, 65. V. Ballard, 77. 11. Bardaley, 258. V. Mann, 254, 257. Brady v. Chandler, 278. Braithwaite v. Coleman, 20p. V. Gardiner, 215. Bramhall v. Beckett, 100. Brandao v. Barnett, 66, 100, 101. Brannin v. Henderson, 43. Brannon y. Hursell, 217. Bransby v. Bank, 272. Bray v. Hadwen, 190, 191. Braynard v. Marshall, 283. Breckenridjre v. Shrieve, 88. BredowD. Mut. Sav. Inst., 89. Breed v. Cook, 227. Brett V. Levitt, 203. V. Marston. 128, 247. Brewster v. Wakefield, 217. Britlgo/i). Batchelder, 228. Bridges V, Berry, 183. Briggs V. Bwart, 58. V. Parsons, 164. Brill V. Hoile, 11. Brind v. Hamjjshire, 59. Bristol V. Warner, 6, 21. Bristow V. Sequeville, 69. British Linen Co. v. Caledonian Ins. Co., 213. ' Britt V. Lawson, 169. Britten v. Dierker, 254. V. Niccolls, 164. Broadway Bank v. Schmucker, 251. Bromage v. Lloyd, 69, 61.. V. Vaughan, 194. Bromley v. Brunton, 274. Brook V. Hook, 91, 92. ' Brooks V. Allen, 251, 254, 257. V. Blaney, 168. V. Elkins, 278. V. Mitchell, 268, 282. . V. White, 234. Brooklyn City Ry. Co. v. Nat . Bank, 100. Brown ex parte, 119. ' in re, 267, 275. i\ Bebee, 15. V. Butchers' & Drovers' Bank, 57. V. Curtis, 208. V. Davies, 141. I). Donnell, 75, 77. V. Oilman, 278. v. Lingley, 66. V. Leckie, 268. V. MiDermott, 167. V. Reed, 257. V. Rutherford, 235. V. Smith, 234. V. Si raw, 254. V. Winnisimmet Co., 77. Browne! I v. Bonney, 205. Browning v- Merritt, 220. Brummagin v. Tallant, 278. Brummel ». Enders, 97. Bruce v. Westcott, 255. Brush V. Reeves, 123. Brutt V. Picard, 258. Bryan v. Berry, 82. Bryant v. Eastman. 136. V. Lord, 130. V. Wilcox,. 204. Buck V. Robson, 12. Buckley, ex parte, 279. V. Jackson, 133. Buckner v. Finley, 39. Bulkeley ». Butler, 241. TABLE OF CASES CITED. BuUard v. Thompson, 70. Buller ('. Cripps, 2. Bulldok r. Campbell, 264. V. Taylor, 17, 18. Bnmpass v. Timms, 24. Burliridge v. Manners, 188. 2o2, 2M8. Burchfiplcl V. Moore, 215, 222, 232, 243, 255, 257, 259. Burdon t>. Benton, 94, 96. Burgess v. Vreeland, 189. Burgh V. Legge, 182, 184, 202. Burke v. Allen, 284. V. Bishop, 274. V. McKay, 177, 179. Burkhalter v. Bank, 269. Burlingame v. Brewster, 86, 256. f). Foster, 187. Burmester ». Barron, 187. Burnapt'. Cook, 127. Burnham r. Allen, 16, 68. Burr r. Smith, 235. Burrill e. Smith, 222, 251. Burrows v. Jeniino, 233. V. Eeays, 117. Burson i . Huntington, 59, 62. Burton i: Rutherford, 264. Butcher t>. Stead, 95. Butler r. Carns, 58. Butler V. Myer, 70. t>. Painn, 13. Butt V. Morrell, 48. Butterworth v. Le Despencer, 166, 173. Buxton V. Jones, 166, 167. Byars v. Doores, 84. Byrom v. Thompson, 258. Cabot Bank »'. Warner, 185, 186, 189. Cady V. Shepard, 220. Caldwell r. Lawrence, 148. Calhoun r. Albin, 104, 139. Callahan r. Bank of Ky., 193. Callow t . Lawrence. 129, 139, 235, 237. Calvert r. Baker, 255. Camden v. McKoy, 220. Came v. Brigham, 76. Camidge t'. Ailenby, 208, 226, 228. Campbell r. French. 30, 32, 179. V. Hodgson, 65. r. Nichols, 218. V. Webster, 180, 205, Canal Bank r. Bank, 215. Cannam r. Fanner, 74. Capital Bank c. Armstrong, 257. Capron v. Capron, 29. CardwelU. Martin, 253. Carew v. Duckworth, 199, 201. Qirih-s V. Tattersall. 258, 259. Carll V. Brown, 282. Carlon v. Kenealy, 29. Carlos V. Fancourt, 11, 26. Carlton i;. Bailey, 282. Carnegie v. Morrison, 45, 68. Carpenter v. Farnsworth, 8, i V. McLaughlin, 221 V. North Bank, 90, Carr 1). Nat. Bank, 45, 46, 21 Carrier t\ Spars, 111, Carruth r. Walker, 12-2. Carruthers c. West. 143. Carter v. Burlev, 178, 189. V. Flower, 182. 198. V. White, 86, 76. Carver v. Hayes, 278. Carvick r. Viokery, 137. Case r. Burt, 157. Castrique r. Bernabo, 264. V. Buttegieg, 108, IS Cate e. Patterson, 278. Caton V. Caton, 56, 57. Catton V. Simpson, 256. Caunt «. Thompson, 169, 185 200, 202. Cawein v. Browinski, 269. Cayuga Bunk v. Bennett, 193 Cedar Falls Co. r. Wallace, 2 Central Bank v. Davis, 130. V. Levin, 187. V. Richards, 45 Chaddoek t', Vanness, 63, 64, Chafeei'. R. R., 221. Challis V. McCrum, 227. Chalmers v. Lanion, 142. dhambers <-. Hill, 162. V. Miller, 235, 242, Chamhliss v. Matthews, 140. Champion r. Gordon, 267^ Chanoine e. Fowler, 184. Chapman v. Black, 260. r. Cottrell, 61, 70, V. Keane, 184, 188 V. Rose, 58, 103. t'. White, 212. Chard v. Fox, 168, 195, 197. Charles t'.Blackwell, 82 ,91, 2'. V. Denis, 64. Charlton v. Reed, 28. Charnley r. Grundy, 209. Chartered Banke.Dickson, 2f 283. Chase V. Alexander, 212. TABLE OF CASES CITED. ^Chasemore v. Turner, 266. Cheek v. Boper, 156. Chemung Bank w. Bradner, 38, 87. Chenot ». Lefevre, 136. .Chester. !'. Dorr, 143. ^Chicago Ry. Co. v. Lowenthal, 280. V. West, 3. Chicopee Bank v. Chapin, 107. I ». Philadelphia Bank, 167. Childs V. Davidson, 125. V. Laflin, 166. V. Monins, 85. Chipman v. Tucker. <-l, 63. Chism V. Toomer, 254, 259. Christie v. Peart, 46. Cisne «. Chidester, 28. Citizens' Bank r.New Orleans Bank, 210, 213. V. Richmond, 257, . 258. City Bank v. Cutter, 33. ' »'. First Nat. Bank, 243. Claflin V. Wilson, 132. Clagett V. Salmon, 251. Claridge v. Dalton, 198, 251. Claj-k V. Bank, 270. ». Boyd, 59. V. Burn, 266. V. Eldridge, 195. V. Sigourney, 61. 116. V. Whitaker, 119. V. Whiting, 219. / Clarke, ex par te, 222. V. Johnson, 62, 140. V. Percival, 9. Clayton v. Gosling. 26. Clerk V Blackstock, 255. V. Pigot, 127, 149. Clews V. Bank of N. Y. Nat. Bank- ing Assn.. 243,268. Clifford «. Parker, 259. CHne V. Guthrie. 58. Clinton Bank v. Graves, 25. Clode ». Ba:yley, 191. Clough V. Seay. 259. Cloves V. Cloyea, 107. aute V. Small, 259. Cobb V. Doyle, 100. Coburn v. Webb, 257. Cochran ». Nebeker, 254. Cooke V. Blackbourn^ 22. Cocks V. Masterraan, 243. Coddington v. Davis, 172. Coffin V. Loring, 31. Coffman K. Campbell, 45, 68. Coghlin V. May, 143. Cohen. «'. Hale, 261, 274. Colborne, ex parte. 281. Cole V. Gushing, 127, 128. V. Jessop, 164. Colehan v. Cooke, 26, 28, 65, 276. Colgate V. Buckingham, 30. Colgrove V. Tallman, 253. Collins®. Gilbert, 10.3, 113. V. Martin, 98. V. Insurance Co., 78. Collis V. Emmet, 219. ' CoUottv. Haigh, 105. Colson V. Arnot, 146. Coltman, in re. 112. Commercial Bank v. Cunningham, ' 235. V. First Nat. Sank, 243. B. French, 7. V. Routh, 40. V. Varnum, 178. Commissioners v. Clark, 103. e. Waspon. 64. Commonwealth v. Bank, 256. V. Butterick, 3. V. Mauley,, 115. Comstock V. Hier, 100. Conant v. Hitt, 265. Condon v. Pierce, 65, 222. Conley v. Winsor, 113. Conn V. Thornton, 27. Connor v. Martin, 116. Conover v. Earl, 126, 150. V. Stillwell, 10. Conro V. Port Henry Iron Co., 80. Continental Nat.Bank v. Townsend, 141. Converse v. Cook, 251. Cook p. Baldwin, 43, 44. V. Home, 29. V. Lister, 135. 199, 214. 234, 235, 236, 238, 246, 250. V. Litchfield, 70, 195. «. Satlerlee, 9, 14. V. Wright, 94. Coolidge V. Payson, 44, 45. V. Ruggles, 9. Coonley v. Wood, 279. Cooper V. Meyer, 147, 214. 215, 216. «'. Waldegrave, 218. Copp V. Sawyer, 260. CoDcin V. Grav, 264. Corbett v. Clark, 6, 12. V. Georgia,' 27. Corcoran v. Doll, 260. Cordery v. Colville, 202, 203. Corgan v. Frew, 16. Cornell v. Nebi-ker, 257. Corner v. Taylor, 2Ij9. TABLE OF CASES CITED. Corn Exchange Bank v, Nassau Bank, 67, 240, '244. Cornwall v. Gould, 260. Cory». Scott, 199. Costelo V. Crowell, 10. Cota V. Buck, 26, 28, 29. Cote, ex parte, 60; 61. Cotes V. Davis; 75. Coulter V. Richmond, 220. Courtauld p. Saunders, 85. Coward v. Hughes, 74, 94. Cowie V. Sterling, 7, 8. Cowing V. AHman, 23, 112, 272. Cowperthwaite v. Sheffield, 184. Cox V. Nat. Bank, 65, 166, 167. ». Troy, 61. V. Wallace, 65. Craig r. Price, 30. V. Sibbett, 108. 1). Twomev, 150. Cramer®. Eagle. Mfg. Co., 218. Crandall®. First Nat. Bank, 265. V. Schroeppel, 209. Cranley v. Hillary. 174. Cranson®. Goss, 25. Crawford v. West Side Bank, 224, 226, 254. V. Millspaugh, 246. Creamer v. Perry, 201, 203. Cribbs v. Adams, SO, 32, 152, 178. Crim V. Starkweather, 282 . Cripps «, Davis, 141, 2ii4j 239, 266, 282 Crist D.'Cirist, 117. ' Crocker®. Getchell, 196. Cromer v. Piatt, 184, 195, 197. Cromwell v. County of Sao, 140,217. V. Hewitt, 221. Crook V. .Tadis, 102. Crooker v. Holmes, 29. Crooks V. TuUy, 208. ' Crosby v. Grant, 141. Crosse v. Smith, 192. Orosthwait ®. Boss, 88. Crouch V. Credit Poncier, 57, 67, 69, 121, 123, 145, 281. V. Hall, 69. Crowe V. Clay, 151, 152, 209, 259. Crowell V. Plant, 51. Crowfoot V. Gurney, 17. Crutchley®. Mann, 35. Cummings v. Shand. 210, 211, 273. Cummings v. Boyd, 100. V. Kohn, 148. Cundv V. Marriott, 232, 259; Cunli'ffe ®. Whitehead, 118. Cunningham< v. Smithson, 48. Curlewis ». Clark, 261. V. Corfield, 205. Currie v. Misa, 98, 101. 105, 261. Currier v. Lockwood, 278. Curtin v. Patton, 73. Curtis V. Bemis, 145. V. Mohr, 99. V. Nat. Bank, 85. V. Smith, 76. V. Sprague, 127. Cushman v. Haynes, 17. V. Welsh, 15. Cutler ». Reynolds, 267. Cutting V. Conklin, 124. Cutts V. Perkins, 210. D Da Costa v. Cole, 19. ' Daggett V. Daggett, 278. Dale V. Gear, 6':^, 64. Dalrymple v. Hillenbrand, 11^ Daly V. Bank, 165. K. Proetz, 31. Dana v. Sawyer, 163. V. Underwood, 148. Darbishire v. Parker, 189. Darnell v. Williams, 107. Davega v. Moore, 6. Davey v. Jones, 164. Davidson v. Cooper, 257. V. Lanier, 3-5. •"57. Davies v. Humphries, 264. Davis V. Allen, 80. V. Barger. "25. V. Bartlett. 114. V. Bean, 109. V. Brown, 66. V. Building Union, 76. V. Carson, 100. V. Clarke, 48. V. Cook, 87. V. Miller, 143. ®.Neligh, 142. . , V. Stevens, 236. Davison v. Robertson, 88. Dawes V. Harness, 110, HI. Dawkes v. De Lorane, 9, 11. Dawson v. Bank, ^5. 1). Morgan. '218. V. Prince, 92. Day V. McAllister, 20. ®. Nix, 109. . V. Thompson, 64. Dayton®. Trull, 208. Deacon v. Stodhart, 236, 247. Dean v. Hewitt, 266. DearsdorfE ®. Foresman, 62 TABLE OF CASES CITED. De Arts v. Leggett, 151. De Bergareche v. Pillin, 166. Deblieux v. Bullard,,190. Deemen v. Haskell, 282. DeForest v. Frary, 10, 27. Dehers v. Harriott, 134, 165. Deitz v\ Regnier, 87. De La CHauuiette v. Bank, 69, 98, 101, 105, 148. Delaney v. Brunette, 235. Delano v. Bartlett, 113. Delatorre v. Barclay, 246. De Lavalette v. Wendt.' 263. Delaware Bank v. .lerviR, 228. Dennison v. Tyson, 14. Dennistouji v. Stewart, 178, 195. Denston v. Henderson, 248. Dent V. Dunt), 217. Denton v. Peters, 63, 98, 108, 124. Depew V. Whelan, 151. Desha v. Stewart, 53- Deshnn v. Leffler, 68. De Tastet v. Baring, 224. Deuters v. Townsend, 141, 145. Develing v. Ferris, 201. Devlin «. Chamblin, 227. Dickerson v. Wason, 101. Dickin v. Morgan,22. Dickiusi!. Beal, 198. Dickinson v. Valpy, 88. . Dillon y.' Rimmer, 260. Dingham v. Amsink, 113. Dinsmore v. Duncan, 257, 280,' 281. Dixun ex parte, 146. V. Bovill, 13. V. Nutall, 26, 32, 175. Dod V. Edwards, 239. Dodd 0. Bishop, 84. V. Gill, 175. Dodge u. Bank. 239. V. Freedman's Trust Co., 235, 236. Dohoney v. Dohoney. 24. Dolfus i>. Frosch, 129. Don V. Lippman, 70, 265. Donnell v. Lewis Co. Sav. Bank, 193. Dorenius v. Burton, 33. Dorman v. Dibdin, 20. Doty?'. Bank, 111. Dougherty «. Bank, 174. V. Depny, 235, 238. Douglass V. Wilkeson, 8. Downer v . Tucker, 27. Downes v. Church, 39, 40, 41. V. Richardson, 253, 267. Downey v. Hicks, 227. Downing V. Traders' Bank, 238. Drain v. Harvey, 65. Drake v. Markle, 13, 278. D, Rogers, 23. Draper v. Jackson, 115. V. Wood, 254, 257. Draytoni-. Dale, 216, 284. Dresser v. MLssouri Co., 96, 102, 114. Druifl V. Parker, 62, 258. Drury v. Macaulay, 9, 22. Dubois V. Wason, 220. Dubuys V. Farmer,, 31. Dudman v. Earl, 128. Duel V. Bricker, 43. Dugan v- United States, 129. Dumont V. Pope, 154. V. Williamson, 129, 222. Dunavan v. Flvnn, 42, 60. Dunbar v. Tyler, 173. Duncan v. Louisville, 280. V. Niles, 84, 86. V. Scott, 110. Duncan, Fox & Co. v. N. & S. Wales Bank, 209, 214, 222, 238. Dunham v. Clogg, -142. Dunn V. O'Keefe, 146, 15S, 179, 184. V. Parsons, 251. V. Weston, 143. Durginv. Bartol, 7. Durkin v. Cranston, 41. Durnford v. Patterson, 30. Dutton K. Marsh, 57. 85, 281. Dwightu. Newell, 117. V. Scovil, 199. E Eagle V. Kohn, Il2. Eagle Bank v. Cbapin, 188. V. Hathaway, 186. Earl ». Peck, 95. Earleo. Reed, 73. Eastn. Smith, 182, 184, 197, 198. Eastern Bank i;. Brown, 187. East Indian Co. v. Tritton, 244. Eastman v. Furman, 162. V. Pliimmer. 236. East of England Banking Co. in re, 171, 217. Easton ». Pratchett, 107. East Tenn. Co. v. Gaskill, 86. East Township i>. Ryan, 11. Eastwood V. Bain, 84. V. Kenyon, 94. Eaton V. Boissonault, 217. {j.McEown, 23^ TABLE OF CASES CITED. Edgerly v. Shaw, 73. Ediep.East India Co., 67,122,132-3'. Edis V. Bury, 68. Edmunds v. Bushell, 80. Edson V. Puller, 48, 46. V. Jacobs, 193. Edwards v. Dick, 112. Esffjan V. Briggrs, 141. Ehrichsj). De Mill, 12. Eilbert v. Finkbeiner, 220. Eisenlord v. Dillenback, 206. Elford V. Teed, 163. Ellis V. Commercial Bank, 206. V. McHenry, 233. ^. Ohio Trust Co.. 215, 242. •K. Wheeler, 6. Ellison V. Collingridge, 9. EIlston». Deacon, 88. Ellsworth V. Brewer, 237. Elsam V. Denny, 288. Elwell V. Dodge, 79. Emblin v. Dartnell, 175. Emerson v. Burns, 113. Emery v. Hobson, 130. V. Vinall. 24. Emmanuel v. Robarts, 67, 273. Emmett v. Tottenham, 150. English Credit Co', v. Arduin, 210. Ernst V. Steckman, 28. Erwin v. Lynn, 127. Bsdaile ». La Nauze, 91, 93. V. Sewerby, 172, 202. Esley V. People, 71, 284, Espy V. Bank, 268. Estes V. Tower, 31. European Bank, ea; parte, 105. iit re, 99. Evans v. Cramlington, 132, 133. V. Foreman, 257. D. Philpotts, 278. 17. Secrest, 75. V. Underwood, 26. V. Whyle, 226. Everard v. Watso;n, 194, 196. Everhart v. Puckett, 22. Everett v. Vendryes, 71. Evertson v. Bank, 31. Ewin V. Lancaster, 250, 252. Eyre v. Walker, 267. Exchange Bank v. Rice, 45, 212. Exchange Nat. Bank v. Third Nat. Bank of N Y., 153. Exonu. Russell, 174. P Paircbild v. Peltman, 45. V. Ry. Co., 3. Fairolough v. Pavia, 96, 109, 123, 129, 142,219. Pairlee v. Herring, 43. Faith V. Richmond, 79. Fales V. Russell, 161. Fanning v. Russell, 59. Fanshawe v. Peat, 52, 68, 256. Fareira ». Gabell, 111. Farmers' Bank v. Duvall, 168. V. Garten, 37. V. Kercheval, 20' V. Rathbone, : 235./2.')2. Farmers' Bank v. Small , 243. V. Vail, 188. Farmers' Bank of Ky. «. Ewing, '. Parnsworth v. Allen, 163. V. Drake, 147. Fas-quar v. Southey, 256. Farrell v. Lovett, 108. Farwell v. Curtis, 269, 271. Fassin v. Hubbard, 129. Fawcett i>. Freshwater, 251. Fay V. Fay, 110. V. Smith, 257. Fear v. Dunlap, 220. Fearing r. Clark, 61. Pearn v. Filica, 82. Pegley v. McDonald, 268, 271. Fellows V. Wyman, 90. Fenn v. Harrison, 77, 226, 228. Fentutn v. Pocook, 253. Ferris v. Bond, 5, 276. Field V. Carr, 61. V. Tibbetts, 140. Fielder ■». Marshall, 68. Filley v. Phelps, 79. Finley v. Green, 64. Finney v. Callendar, 25. First Nat. Bank v. Bank, 64. V. Beaird, 100. V. Bynum, 17. t!. Dubuque Co., 12,212. V. Gay, 17. V. Hall, 137. ■V. Harris, 271 V. Lar.sen, 17. V. Leach, 268. V- Marine Ban 222. V. Morgan, 261 V. Needham, 5 V. Owen, 164. V. Pettit, 45, 4 V. Price, 25. V. Ricker, 242 V. Ryerson, 18 V. Smith, 190. V. Strang, 59- TABLE OF CASES CITED. First Nat. Bank v. Tappan, 242. V. Whitman. 212. «>. Wood, 185, 190. Firth V. Brooks, 269. V. Thrush, 184, 191, 193, 205. Fisher ». Calvert, 11. V. Fisher, 100. «). Leland, 110. . r. Rieiiian,.229. Fitcb fc. Jones, 68, 104, 111, 112, 114. Fitchburg Bank ». Greenwood,, 129. V. Rice, 10. Fitchburg Ins. Co. v. Davis, 183. Fleet «. Perrins, 115, 116. Fletcher v. Cbase, 95. Flight V. lieed, 94, 260. "Flint V. Craig, 255. t). Flint, 126. Flower v. Sadler, 112. Foafcps V- Beer, 261. Foglesong «. Wickard, 59. Folger V. Chase, 79, 125. FoUett V. Moore, 14. Foley ». Hill, 273. Foote V. Brown, 208.' Forbes v. Espy, 147. V. Marshall, 79. V. Omaha Nat. Bank, 186, 187. Ford I'. Angelrodt. 51, 160. V. Beech, 234. Forman ». .Jacob, 80. V. Wright, 107. Forster v. Mackreth, 82, 89, 267, 273. Fosters. Dawber,' 105, 246. V. Julien, 169, 171. V. Mackinnon, 58,. 220. V. Parker, 199. Fowler «. Bijsh, 261. V. Paiiner, 144. V. Strickland, 107. Fox V. Bank of Kansa.s City, 141. Fraker v. Little, 243. Fralick v. Norton, 17. Frank v. Kaigler, 126. V. Wessels, 10, 13. Fra,nklin v. Twogood, 117. Franklin I.ns. Co. v. Courtney, 254. Frazier v. Massey, 74. V. Trow 's Printi ng, etc. , Co. , 23. V. W'arfield, 218. Frayzer v. Dameron, 169. Freakley v. Fox, 245. Freeman v. O'Brien, 203. Freeman's Bank v. Perkins, 38, 39, 190. V. Savery, 146. Preese v. Brownell, 70, 226., French v. Bank, 170, 198. 199. r. Jarvis, 139, 237. V. Turner, 117, 125. Freund u.'Bank, 118. Frevert «. Henry, 232, 236. Fritsch v- Heislen, 25. Frontier Bank v. Morse, 228, Fry V. Hill, 154. Fryer v. Roe, 63. Fugitt V. ISTixon, 205. Fuller «. Dingman, 165. I). Hooper, 199. Fulton V. Maccracken, 178. Furze v. Sharwood, 195. G Gage V. Lewis, 176, 208. «. Sharp, 62, 110. Gale V. Miller, 91 . V. Walsh, 179. Gallagher v. Black, 43. Gammon v. Everett, 175. ' 0. Schmoll. 160. Garden v. Bruce, 265. Gardner v. Maynard, 237. V. Walsh, 254, 255, 280. Garland v. Jacomb, 88. 216. Garlock v. Geortner, J51. Garnet v. McKe^an, 273. Garnett v. Woodcock,' 163. Garrard v. Cottrell, 231. Garton v. Bank, 79. Gaskin v. Davis, 30. Gates j>. Beecher, 169, 194. e. Union Bank, 260. Gatty f. Fry, 23, 273. Gay V. Lander, 277. Gaytes v. Hibbard, 7. Gazzam v. Armstrong, 54, 55. Geary t). Physic, 56. Geiger v. Clark, 208. Geill V. Jeremy, 189. General So. Am. Co.,t;i re, 211, 218. George v. Surrey, 57. Geortner d. Trustees of Canaioharie, 90. ^ Geralopulo ». Wider, 54, 177, 178, 181,247. Gerhadt v. Savings, Inst., 164. German ». Ritchie, 218. Gerrish v. Clines, 255. Gibb >. Mather, 161, 165, 175, 255, ' 276. TABLE OF CASES CITED. Gibbs V. Fremont, 219, 222, 226. Gibson V. Cooke, 212. V. Hunter, 147. V. Minet, 122, 123, 125, 147. V. Toby, 226, 227. Giddings v. Giddinga' Adm'r, 61. Giffert e. West, 227. Gilbert v. Dennis, 165, 194, 195, 197 Giles V. Bourne, 21, 2b. GilU. Cubitt, 102. Gillespie, in re, 218. V. Wheeler, 221. Gillett ». Sweat, 255, 259. Gillilan v. Myers, 9, 14. Gist V. Lvbrand, 169, 187. Giveus V. Bank, 172, 203. Gladwell v. Turner. 188, 189, 205. Glasgow V. Pratt, 185. Gleason v. Henry. 91. Glennie v. Imri. 109. Gloucester Bank v. Salem Bank, 243. v. Worcester, 251. Glyn V. Hood, 12. Goddard v. Bank, 215. 242, 248. V. O'Brien, 261. Godfray v. Cdulraan, 155. Godfrey v. Rice, 264. Goggerly v. Cuthbert, 63. Goldamid v. Hampton, 4, 88. Gomersall, in re, 24, 100, 102, 107, 144. Gompertz.4). Bartlett, 227. Good !). Martin, 140, 221. Goodall V. DoUey, 204. V. Polhill, 191, 249. Goodenow b. Curtis, 256. Goodman v. Harvey, 102, 103, 137. V. Simonds, 99, 102, 103. Goodnow V. Warren, 194. Goodspeed v. Cutler, 257. Goodwin, in re, 250, 252. V. Buzzell, 266. V. Robarts. 14, 66, 67, 122. 148, 210, 268, 272, 281. Gorden «. Robertson, 257. Gordon V. Wansey, 232. Goss, ». NpIsou, 26. Gould V. Robson, 250. V. Segee, 61, 96. Goupy V. Harden, 129, 154. Gove V. Vining, 204. Gowan v. Jackson, 154. Gower v. Moore, 169. Grafton Bank -p. Cox, 169. Granite Bank v. Ayers, 168. Grant v. Da Costa, 21. V. Hunt, 45. V Kidwell. 239. V. Shaw; 47. V. Vaughan, 6. V. Wood, 12, 27. ■Graves u. American Bank, 90. V. Key, 144, 235. Grayt). Bowden, 278. V. Johnston, 239, 272. ' t). Milner, 4. V. Raper, 85. V. Seckhara, 99, 231. ■ V. Ward, 88. Green » Carhill, 116. V. Davies, 8. V. Greensboi:ough, Coll 266. V. Shepherd, 21. Greene ». Bates, 251. V. Thompson, 176. Greenfield Bank v. Crafts, 91. V. Stowell, 25' Greenough v. McClelland, 251. Greenongh v. Smead, 128, 221. Greenwich Bank v. DeGi:oot. 187. Grey I). Cooper, 72, 74. Griener r. Ulerev, 72. Griffin v. Kemp '212, 269, 270. V. Weatherby, 12, 165, \ Griffith V. Grogan, 261. Griffiths V. Kellogg, 58. Grimm v. Warner, 60. Grimshaw v. Bender, 39, 70. 22, Grocer's Bank v. Penfield, 100. Grover v. Grover, 120. Groves v. Ruby, 126. Guardians of Lichfield v. Gre( 227. Guepratte «. Young, 68. Guild V. Butler, 250, 251, 252. Gurney v. Evans, 80. V. Womersley, 228.' Guy V. Bibend, 94. Gwinnell v. Herbert, 220, 221, i Hackenbury v. Shaw, 20. • Hadden v. Rodkey, 118. Hagerstown v. Adams Ex. Co., ] Hageyi). Hill, 251. Haines v. Pearce, 261. Hale ». Burr, 169. Halifax v. Lyle, 215. Halifax Union v. Wheelwright, 5 Hall V. Allen, 118. TABLE OF CASES CITED. Hall V. Burton, 277. V. Cole, 251. V. Crandall, 84, 86. V. Featherstong, 113. V. Fuller, 241. ' V. Kimljall, 245. V. McHenry, 255. V. Steel, 44. Hallett'K Estate, in re, 273. Hallowell v. Curry, 188. Halstead v. Skelton, 175. Hamelin v. Bruck, 2f)4, 258. Hamilton v. Hooper, 255, 257. Hamilton v. Prouty, 251. J). U. R. Co.. 57, 76. I V. Spottiswnode, 11. Hanbury v. Lovett, b7, 255. Hanoe v. Miller, 127. ■ Hancock Bank v. Joy, 75. Handyside v. Cameron, 81. Hannum v. Richardson, 129. Hansard v. Robinson, 151, 165, 209. Hapgrood v. Watson, 277. Harding v. Cobb, 75. ». Edgecumbe, 266. V. Waters, 221. Hardy v. Merriweather, 76. V. Pilcher, 3, 85. V. Woodruffe, 171. Hare v. Henty, 269, 270. Harger v. Worrall, 118. Barker v. Anderson, 161, 162, 267. Hariner v. Killing, 73. Harmpr v. Steele, 5, 123, 126, 214, 232, 236. Harms v. Aufield, 94. Harper v. West, 43. Harpham v. Child, 195. Harris v. Aniery, 88. V. Clark, 169. 274. V. Parker, 166. Harrison ex parte, 125. V. Close, 246. V. Courtauld, 253. V. Dickson, 224. ■0. MoKim, 64. V. Ruscoe, 184, 185. Harrop v. Fisher, 81, 90, 118, 125, • 127. Harsh v. Klepper, 254. Hart V. Life Association, 278. V. Stephens, 115. Hartford Bank v. Green, 166. Hartford Ins. Co. v. Wilcox, 83. Harvey v. Cane, 6, 46. V. Nelson, 172. Hasey v. White P. B. S. Co., 3. Haskell c.Boardman, 189, 201. V. Lambert, 9. V. Mitchell, 125. Hatch V. Searles, 85, 37, 38, 146, 275 V. Tr'ayes, 21, 105. Hatcher v. Stalworth, 52. HaussouUier v. Hartsinck, 6, 12. Havens v. Talbot, 203. Hawkes v. Salter, 186, 189. ' Hawkins v. Cardy, 126. Haxton v. BLshop. 174. Hay V. Ayling, 111, 260. Hayden v. Weldon, 221. Hayes v. Brubaker, 256. Hays V. Crutcher, 84. V. Gwin, 9, 22. Hayward ex parte, 4, 38. V. Hunger, 140. V. Pilgrim Society, 76. Heath v. Silverthorn Co., 95. Heaton v. Knowlton, 110. Hedges v. Sealy, 99. Heenan v, Nash, 48, 49. Heffron v. Hanaford, 87. Heilbut V. Nevill, 89, 91, 126, 137, Helmer v. Krolick, 17, 28. Hemmenway v. Stone, 279. Henderson v. Fox, 78. Hendricks v. Franklin, 225. ». Thornton, 8. Henry v. Hazen, 26. V. Lee, 163. Herald «. Connah, 50. • Herbage v. McEntee, 221. Herbert v. Servin, 187. Hereth i: Bank. 142. Herrick v. Baldwin, 169. V. Woolverton, 282. Herring v. Woodhull, 125. Hersey v. Elliot, 116, 118. Heuertematte v. Morris, 215. Hewitt V. Kaye, 274. Hewitt V. Thompson, f 05. Heylyn v. Adamson, 276, 283. Heysham v. Dettre, 110. Heywoodu. Perrin. 65. V. Pickering, 164, 191, 269. 270. «. Wingate, '^77. Hibernian Bank v. Everman, 144. Hickling t'. Hardey, 159. Hicks V. Beaufort, 205 . V. Hinde, 78, 87. Highmore v. Primrose, 21. Hilborn v. Alford, 57. Hill V. Buckminster, 107, 260. TABLE OF CASES CITED. Hill V. Dunham, 25. V. Halford, 11. V. Heap, 171, 172, 203. V. Henry, 263. V. Royds, 212. V. Todd, 19. V. Wilson, 22, 94. Hills V. Parker, 98. V. Place. 174. Hilton V. Fairelongh, 189. V. Smith, 107. Himmelman v. Hotaling, 154, 271. Hine v. Allely. 166, 167. Hirschfield v. Smith, 19, 188, 206, 255. Hirschman v. Budd, 254. Hitchcock V. Humfrey, 176, 207. Hoare ». Cazenove, 53, 181, 229. Hodges V. Hunt, 73. V. Shuler, 195, 280. Hoffman v. Foster, 143. V. Moore, 221. Hogarth v. Latham, 4. V. Wherlev, 82. Hoggw. Skeen. 92, 114. Hoit V. Underhill, 73. Holbrow V. Wilkins, 207. Holcombc. Wyckoff, 100, 114, Holden v. Cosgrove, 260. Holdsworth v. Hunter, 2, 41. Holeman v. Hobson, l07. Hollands Hatch, 36, 255. V. Johnson, '^51. HoUiday v. Atkinson, 107, 120. Holmes v. Jaques, 7, 8. V. Kerrison, 263. V. Kidd, 66, 142. V. McGinty, 280. V. Staines, 205. V. Trumper, 257. V. West, 25. Hoitt). Ross, 216. Holzworth V. Koch, 99, 109, Homes v. Hale, 50. Honey, ex parte. 279. Hood V. Hallenbeck, 172. Hook V. Pratt, 132, 134. Hooks V. Anderson, 221. Hooper v. Treffery, 108. V. Williams, 277, 278, Hopkins v. Abbott, 278. V. Gray, 251. V. R. R. Co., 281. V. Scott, 236. V. Ware, 176, 270. Hopkinson v. Forster, 212, 267. Hopkirk v. Page, 199, 3 Hopley V. Dufresne, 172. Horn V. Nash, 20. Hornblower v. Proud, 94. Home V. Rouquette, 206. Horst V. Wagner, 268. Hortsman v. Henshaw, 215, i Hosford V. Stone, 122. Hosstatter v. Wilson, 280. Hough V. Barton, 151. V. Loring, 44, 50. Houghton V. Bank, 79. V. Ely, 221. V. Francis. 18. Houlditch V. Cauty, 197. Houle V. Baxter, 232. House V. Vinton Nat. Bank, Housego V. Cbwne, 193, 197. Houston ». Bruner, 221. Hovey v. Sebring, 150. Howard v. Bank, 215. V. Boorman, 174. V. Duncan, 91. V. Tves, 190. Howard Bank v. Carson, 172 Howe, in re, 51. V. Bowes, 172. V. Bradley, 192. V. Wildes, 74. Howenstein v. Barnes, 17, 70 Howland v. Carson, 46, 65. Howry v. Eppinger, 12, 103. Hoyt V. Jaffray, 21. Hubbard v. Chapin, 102. V. Gurney,66. V. Harrison, 18. t. .Tackson, 138, 237 V. Matthews, 194. V. Mosely, 10, 29. Huffaker v. Bank, 167. Hughes ». Nelson, 118, 119. Hull V. Conover, ,118. Humphreys v. Guillow. 255. Hunt V, Divine, 10, 278: Hunt ». Gray, 259. Hunter v. Jeffery, 147. V. Wilson, 96. Huntington v. Finch, 260. Huntley ». Sanderson, 210, 5 Husband v. Epling, 27. Huse V. McDaniel, 261. Hus>6y V. Sibley, 229. ■». Winslow, 278. Huston V. Young, 24. Hutton V. Ward, 218. I. Ilsley V. Jones, 208, 211. TABLE OF CASES CITED. Indiana Bank v. Weekerly, 58. Indig V. Nat. City Bank, 164. Ingham v. Primrose, 62, 146, 2.39, 241, 246. Ingram v. Forster, 157. Inman v. Clare. 12. Innea v. Munroe, 260. Irvine v. Adams, 66, 251. ' V. Lowry, 13. Isbester, ex parte. 226. Ivea». Ba,nk, 35, 251. Ivory V. Michael, 36, 254. Jaccard v. Anderson, 180. Jackson v. Collins, 205. V. Hudson, 48, 220, 280. V. Richards, 188. V. Slipper,- 221, 278. Jacobs, in re, 233, 251. V. Benson, 8. Jacobson r. Shanks, 110. Jacquin v. Warren, 278. Jaflrayj). Brown, 220. Jagger Iron Co. v. Walker, 261. Jameson v. Swinton, 189. Jarvis v. St. Croix Co., 190. V. Wilson, 43. , Jeffries v. Austin, 62. Jeffreys i>. Agra Bank, 97. Jeft's V. York, 46. Jenkins v. Schaub; 100. V. Tongue, 151. Jenners v. Howard, 73. Jennings «. Roberts, 198. .Tennv v. Herle, 11. Jewell V. Parr, 236. John V. Bank, 189. Johnson, es: parte, 193. V. Bank, 255. V. Crane, ,204. V. Carpenter, 280. V. Collins, 44. V. Commercial Bank, 244. V. Heagan, 255. V. Mitchell, 128. V. Offutt, 40. t>. Robarts, 101. ». Smith, 85. t). Sutherland, 22, 74. V. Way, 10 i. Johnston v. Speer, 17. Joint Stock Co., in re, 233. Jones, ex parte, 74. Jones V. Bank, 42, 43, 46. V. Broadhurst, 138, 148, 209, 214, 219, 235, 236, 237, 238. Jones V. Clark, 86, 88. V. Fales, 14. V. Fort, 239. V. Goodwin, 221. V. Gordon, 95, 102, 110, 111, 11,3, 114. v. Heiliger, 269. V. Hibbert, 107. V. Ireland, 260. V. Lane, 111. V. Lock, 274. V. P ppercorn, 101. V. Rndatz, 17. V. Ryde, 228. ■u. Shaw. 64. V. Simpson, 17. Jordan v. Tate, 28. Joseph t). Salomon, 39. Journey v. Pierce, 196. Judah V. Harris, 14. Julian V. Sherbrooke, 51. Juniata Bank v. Hale, 182, 200,202. Jury V. Baker, 10, 66. K. Kaufman v. Barringer, 43. Kautzman v. Weirick, 125. Kearney v. West Grenada Co., 39, 41. Kearns w. Durrell, 110. Keene v. Beard, 123, 219, 267. V. Keene. 217, 223. Kelleyti. Brooklyn, 12. V. Hemmingway, 26, 27. V. Whitney, 10 J, 140, 280. Kellogg V. Barton, 143. V. Curtis, 114. Kelly V. Solari, .243. Kelner v. Baxter, 84. Kemble v. Lull, 51. Kemp, ex parte, 97. V. Balls, 237. Kendal v. Wood, 242. Kendrick v. Lomax. 218, 260. Kennedy v. Carpenter, 264. V. Gedde.s, 44.. Kenner v. Creditors, 46. Kennerly v. Nash, 253, 257. Kenworthy v. Sawyer, 250. Kephart v. Butcher, 227. Kermeyer v. Newby, 261. Kershaw v. Cox, 258. Keyes v. Penstermaker, 282. Kibble ex parte, 78. Kidder B. Kidder, 246. Kilby V. Rochusson, 203. Kilgore v. Bulkley, 83. TABLE OF CASES CITED. Olgour V. Finlayson, 90. Kimball v. Huntington, 278. Kimbro v. Bullitt, 87, 88. Kimmell «. Bittner, 108. King V. Biokley, 195. V. Crowell, 165, 168, 188. V. Fleming. 24, 25. V. Hannah, 265. V- Holmes, 168. ti. Milsom, 113. V. Smith, 89. V. Zimmerman, 151. Kingsbury v. Butler, 25. Kingston ex parte, 101. V. Long, 9. Kinney v. Tlynn, 8. Kinyon v. Stanton, 271. Kirk ». Blurton, 79, 89. V. Insurance Co., 15. Kirkman v. Bank, 60. Kirkpatrick v. Howk, 251. EHner ». Wbitlock, 79. Kittle ». DeLamater, 141. Klauber v. Biggerstafl, 18, 14, 278. Klockenbaum v. Pierson, 197. Klosterman v. Loos. 86. Knapp V. Runals, 172, 203. Knecht o. U. S. Sav. Institution, 273. Knight V. Clements, .259. Knights V. Putnam, 112. Knill V. Williams, 22, 223, 254, 258. Knipper v. Chase, 280. Knott r. Venable, 179, 187. Knox V. Clifford, 24, 25, 65. Knoxville Bank v. Clark, 257. Kohlert). Smith, 2a, 217. Eost V. Bender, 142. Kountz V. Kennedy, 258. Kramer v Sandtord, 201. Kuntz V. Tempel, 38. Kymer v. Laurie, 73. LaDue e. First Nat. Bank, 140. Lafittet!. Slatter, 199. Laing v. Barclay, 210. «. Stone, 217,J223. Lamar v. Brown, 254. Lamb v. Matthews, 239. «. Story, 17._^ Lamon v. French, 51. Lanati v. Bayhi, 144. Lancaster Bank v. Taylor, 119. u. Woodward, 272, 273. Lanceyi>. Clark, 236. Land Credit Co., in re, 58, 83. Lane v. Bank, 165, 182. V. Krekle, 147, 284. t>. Stacy, 137. Langenberger v- Kroeger, 161, f " Lansing «. Gaine, 23. Larkin v. Hardenbrook, 246. Latter v. White, 59. Latouohe v. Latouche, 94. Latourette v. Williams, 115. Laudry v. Stansbury, 169. Law V. Parnell, 127, 148, 150. Lawrence v- American Bank, 5 ». Bassett, 69. V. Dobyns, 129, 166. V. Fussell, 133. Laws V. Rand, 270, 271 . Lawson v. Bank, 189, 190. Lay i;. Wissman,96, 100. Lazarus v. Cowie, 236, 237. Lazell V. Lazell, 151. Lazier v. Horan, 174. Lea V. Bank, 277. V. Cassen, 104. Leach v. Hewitt, 200. Leadbitter v. Farrow, 78, 84. Leather v. Simpson, 108. Leavitt v. Putnam, 122, 141. LebeU. Tucker, 71, 74,222. Lecann v. Kirkman, 203.- Ledwich v. McKim, 35, 59, 227, Lee V. Bank, 132, 183. ». Hayes. 104. V. Zagury, 144, 148, 260. Leeds Banking Co., i» re, 5. Leftley v. Mills, 140, 164, 178, '. Legett V. Jones, 18. Legge V. Thorpe, 180. Lehman «. Jones, 171. Lennig v. Ralston, 39, 70. Lenox v. Cook, 159. Leonard v. Phillips, 256. V. Wilson, 79, 130, 181 LeRoy v.. Crowninshield, 265. Lester v. Given, 212, 272. Levieson v. Lane, 87. Lewis V. Kramer, 45. V. Lee, 74. V. Lyater, 260. S.Parker, 140. e.Reiliy, 89, 90. C.Tipton, 29. Lewis V. Wilson, 280. Libbey v. Pierce, 206. Lights. Kingsbury, 162, 206. Lilley ». Miller, 171. Lincoln v. Hinzey, 57. TABLE OF CAiSES CITED. Linderman v. Guldin, 194. Lindh t'. Crowley, 87. Litido V. XJnsworth, 188. Lmdus V. Bradwell, 49, 75, 79. w. Me.lrose,^67. LinviUe v. Welch, 201. Litchfield Union v. Greene, 276. Lithgo V. Lvon, 217. Littaner r. Goldman. 22S. Little V. Phoenix Bank, 13. V. Blunt, 26:-^, 266, ' ' V. Blackford, 11. Liverpool Bank ,t'. Walker, 85. Lloyd i>. Ashby, 50. V. Davies, 109. V. Howard, 63, 110, 111, 123, 141. V. SifTOurney, 138, 134. Lobadie v. Chouteai], 21. Lobdell V. Baker, 228. Lockwood V. Coley, 80. V. Crawford, 283. Logan J). Caspsli, 100. V. Smith. 99. Lomas v. Bnidshaw, 96. London Bank v. Lampriere, 75. London & County Banking Co. v; Groome, 271. London H Southwestern Bank v. .Wentworth, 46, 216. V. Roberts, 258. V. Walkinshaw^, 235. Long V. Moore, 254. Loomis V. Ruck, 110. Lord V. Hall, 81. Loring V. Gurney, 25. Losee v. Dunkin, 282. Louisiana Bank v. Bank, 268. V. Ellery, 192. Lovejoy v. Bank, 62,64. Lovell V. Hill, 9. Low V. Copestake, 160. Lowe V. Bliss. 18. V. Peskett, 245. Lowell V. Daniels, 74. Lowenthal, ex parte, 179, 195. Lowery v. Scott, 187. Lowry v. Steele, 130. Lucas )). Ladew, 30. Luellen v. Hare, 87. Luff V. Pope, 212. Lugrue v. Woodruff, 46. Lumley v. Hudson, 260. V. Musgrave, 260. Lunt V. Adams, 163. V. Silver, 255. Luqueer v. Prosser, 278. Lyman v. Califer, 281. Lynch, ex parte, 73. Lynn v. Bell, 267. Lyon V. Maxwell, 236. Lyons v. Marshall. 8. Lysaght ». Bryant, 60, 164, 184, 188. M. McAjthur V. Bloom, 74. V. McLeod, 121. McBroom v. Corporation, 8. McCall V. Taylor, 4. McCartney v. Smalley, 18. McClellan v. Coffin. 13. McCloskey ». Tnd. Union, 252. McCormick v. Trotter, 13. V. Hiokey, 8. McCoy ».> Lockwood, 255. McCramer n. ITiompson, 63, 255. McCrillis v. How, 73. McCrum v. Corby, 99. McCutcheon v. Rice, 43. McDonald, in re, 251. V. Elfes, 6.5. V. Scott, 208. V. Whitfield, 221. McDowell J). Goldsmith, 140. McBvers». Mason, 45. McFarland v. Pico, 31. McGee v. Prouty, 245. McGrade v. German Sav. Inst., 212. McGregor!'. Cleaveland, 88. V. Rhodes, 222. McGruder v. Bank, 169. McGuinness i\ Bligh, 256. McHenry v. Davies, 75. McHugh V. County, 91. McKenzie v. British Linen Co., 91, 92. V. Durant, 31. McKewer v. Kirtland, 206. McKleroy «. Bank, 215. McLean v. Clvdpsdale Banking Co., 95, 101, 267, 274. McLemore v. Powell, 251. McManus v. Bark, 66. McMuUen r. Rafferty, 221. McMurcbey v. Robinson, 30. McNeilage v. Holloway, 115, 116. McRaven v. Crisler, 258. McSherry v. Brooks, 141. McVeigh v. Allen, 205. McWilliams v. Bridges, 133. Macdonald v. Whitfield, 231. 252. Maokay v. Judkins, 186, 201. Macklin i>. Crutcher, 79. Maclae ». Sutherland, 279. TABLE OF CASES CITED. Macleod t>. Snee, 12. Magee v. Carmaok, 228, 229. Magruder». McDonald, 21. V. Union Bank, 200. Maguire v. Dodd, 63, 134. Mahan v. Sherman, 65. V. Waters, 174. Maher v. Overton, 85. Mahoney «. Fitzpatriok, 29. Mahony v. East Holjford Co., 58,77. Maiden v. Webster, 279. Maillard v. Argyle, 284. V. Page, 66, 260. Mainwaring v. Newman, 245. Maitland v. Bank, 100. Makepeace «. Moore, 116. Maiden Bank v. Baldwin, 34, 167, 174. Mall V. Van Trees, 94. Manchester Bank v. Fellows, 190, 264. Mandeville v. Welch, 212. Maniort v. Roberts, 148. Manley v. Boycot, 63. Manning I). McClure, 100. Mare v. Charles, 50, 67, 68. Marine Bank v. City Bank, 268. V. Eushmore, 13. Markham v. Hazen, 50. Marrett v. Brackett, 261. ■ Marshall v. Mitchell. 201. Marston v. Allen, 136, 145. Martin v. Bacon. 44. t). Chauntry, 14. V. Ingersoll, 184. V. Mayo, 73. V. Morgan. 242. V . Zellerbach, 77. Maryland Fertilizing Co. v. New- man, 18. Marzetti v. Williams, 272. . Massachusetts Bank v. Oliver, 193. Massie v. Belford, 68. Massman «. Holscher, 63. Mason v. Bradley, 255. V. Dousay, 39,47, 69. V. Franklin, 165. c. Morgan, 116. V. Pritohard, 187. V. Rumsey, 49. Master v. Miller, 254, 256. Masters r. Baretto, 277. 1). Ibberson, 103. "Matteson i>. Morris, 118. Matt.iaon v. Marks, 17. Mather v. Maidstone, 94, 114, 243, 260. Matthews v. Bloxome, 220. Mattheyc. Gaily, 172. Mauney ». Coit, 164. Maxondoff. ex parir, 238. Maxwell «). Brain, 196. V. Goodruiii, 118. i>. Tushill, 265. May V. Chaoman, 103. t;. Kelly, 48. Mayer v. Jadis, 128. V. Mode, 23. Mayo V. Moore, 239. Meachim v. Pinson, 17. Mead D. Young, 90. Meads v. Bank, 268. Mears v. Graham, 16. Mechanics' Bank v. Bank, 16' V. Crow, 18 V. Griswold V. Straiton, V. Valley P 132. Meggett V. Baum, 252. Megrath v. Gray, 148. Mehlberg ». Tisher, 21, 22. Meikel v. Savings Inst., 260. Melledge v. Boston Iron Co., I Mellen v. Moore, 85. Mellersh ». Rippen, 195. Mellish 0. Raw don, 154. i<. Simeon, 173, 219, 225. Meltzer v. Doll, 94. Melvin v. Hodges, 92. Mendenhall )•. Gately, 68. Merchants' Bank v. Birch, 19 V. Eagle 242. V. Griswold, V. Hanson, '. V. N. B. Sa Inst., 113 t>. Spicer, h'l t). State Banl 268. Meredith, ex pfirie, 83. Merriain v. Wolcott, 228. Merrick ». Boury, 259. Merrill, in re, 212. Merritt v. Cole, 280. V. Duncan, 103. b. Todd, 282.' Metcalfe i'. Richardson, 194, 198. Meyer v. Hibsher, 167. ^ I,. Huneke, 258. Michigan Bank ii. Leavenworiu, o». TABLE OF CASES CITED. Michigan Ins. Co. v. Leavenworth, 38 Miers v. Brown, 182, 183, 195. Miller v. Excelsior Stone Co., 26, 27, 65. Miller v. Finley, 255, 256. V. Gilleland, 258. V. McKenzie, 21, 22. V. Miller, 120. V. Neihaus, 43. V. Thomson, 8. ». Weeks, 2, 277. Millerd v. Thorn, 2S3. Mills V. Bank, 66, 194. V. Barber, 107, 108, 113. V. Gibson, 205. V. Kuykendall, 11. Milnest). Dawson, 98, 107. V. Duncan, 243. Mmet V. Gibson, 8. Minor v. Bank, 83. Minturn v. Fisher, 203, 267. Miser v. Trovinger, 170. 194. MitcheU v. Baring, 55, 168, 178. V. Byrne, 60. e.DeGrand, 32, 47. ». Dickson, 116. V. Rice, 245. V. Smith, 125, 131. Mobley v. Clark, 170. Moffat V. Edwards, 30. Mohawk Bank v. Brbderick, 271, 273. Mohawk Nat. Bank v. Van Slyck, , 80. Moline, ex parte, 173, 188. Monmohunee v. Secretary, 125. Monnett v. Sturges, 217. Monson v. Drakely, 279. Montague v. Perkins, 37, 38, 263.. Montelius v. Charles, 162. Montgomery v. Elliott, 175. Moody ». Threlkeld, 35. Moore w. Anderson, 8. tf. Cross, 138. v. Hutchinson, 254, 257. V. Eyder, 99. Moreau ». Branson, 75. Moreland v. Lawrence, 217. Morey v. Wakefield, 282. Morford v. Davis, 223. Morgan V. Bank, 240. V. Davison, 163. V. Lariviere, 213. V. Rowlands, 266. Morley v. Culverwell, 234, 239. Morrell v. Codding, 86. Morris ». Bethell, 81. ' V. Preston, 101, 127. V. Walker, 189. Morrison v. Bailey, 81, 66, 267. V. Buchanan, 154. Morse v. Earl, 116. v._ Wheeler, 73. Morton v. Naylor, 11, 13. Moses V. Trice, 151. Mott V. Havana Nat. Bank, 12. V. Hicks, 57, 76, 79, 87. Moule V. Brown, 227, 270. Mowbray, ex parte, 118.' Mowyer v. Cooper, 103. Moye V. Herndon, 256. Moyer's Appeal, 180. Muir V. Crawford, 249, 250. Mulhall V. Neville, 57. Muller V. Pondir, 69. Muncv Diet. v. Commonwealth, 162. Munger v. Shannon, 12. Munn V. Baldwin, 186. Munroe e. Bordier, 97. V. Hoff, 227. Murdock v. Caruthers, 277. V. Mills, 83. Murphy v. Lucas, 100. Murray v. East India' Co., 8, 138, 217, 265. V. King, 207. 4'. Lardner, 103, 114. V. Judah, 252. Murrill v. Handy, 16. Murrow ». Stuart, 6g, 132. Musselman v. Oakes, 7. Musson V. Lake, 166. Mutford V. Walcot, 33, 47, 53. Mutty Loll V. Dent, 63. Mutual Bank v. Rotge, 268. Myer v. Hart, 18. Myers v. Nell, 257. V. Standart, 51. N. Naglee v. Lyman, 99. Nance ». Lary, 85. Napier ». Schneider, 218. Nash V. Brown, 107. V. Nash, 115. Nat. Bank v. Bangs, 215, 242. V. Eyre, 260. V. Green, 206. V. Kirby, 140. V. McDonald, 87. V. N. B. Ass'n, 242, 243. V. Texi.s, 141. TABLE OF CASES CITED. Nat. Banking Co. v. Bank, 162. Nat. Park Bank v. North Bank, 214, 242. Nave V. First Nat. Bank, 7. Nazro v. Puller, 255. Neale v. Turton, 245, 277. Nelson v. Bank, 44, 45, 46. ' V. Fotterall, 156. V. Serle, 22. Nevill V. Snelling, 96. Nevins v. Townsend, 282. Newberry u. Trowbridge, 203. Newcomb v. Raynor, 250. Newell V. Gregg. 140. Newhall v. Dunlop, 82. New Hope Co. v. Perry, 175. Newman v. Kettelle, 263. Newton ex parte, 107. V. Einnerly, 217. Newton W. Co. v. Diers, 12, 208. • New York Bank ». Selma Bank, 192, 196. New York Iron Mine v. Bank, 81. NicboUs V. Diamond, 49. Nichols V. Pearson, 112. V. Gross, 149. V. Porter, 71. Nicholson v. Gouthit, 171. Nicholson v. Revill, 255. V. Rickets, 79. Nickerson v. Ruger, 110, 113. Nixon V. Palmer, 83. Nightingale v. Withington, 74, 284. Noel V. Murray, 226, 227. Nolan V. Bank. 268, 272. Norris v. Aylett, 260. North Bank v. Abbott, 167. North River Bank v. Aymar, 82, 83. North Stafford Co. v. Wythies,203. Norton v. EUam, 175, 263. V. Seymour, 79. Norwich Bank v. Hyde, 15. Novelli V. Rossi, 247. Nowak V. Excelsior Stone Co., 22, 107. Noxon V. DeWolf, 140. V. Smith, 7, 149. Nunez v. Dantel, 29. Nunn, in re, 106, 108. Nurre v. Chittenden, 66. 0. Oakley v. Oodeen, 102. Dates V. Bank, 99, 112. Ocean Bank v. Pant, 209. V. Williams, 39, 179. Oddie V. Batik, 242. Ogden V. Benas, 90, 240. Ohm V. Young, 68. O'ICeefe v. Dunn, 138, 141, 155, 233. Okell ».' Charles, 50. Okie ». Spencer, 250. Ontario Bank v. Lightbody, 1 V. Worthingtoi Ord V. Portal, 150. O'Reilly v. Richardson, 83. Oridge v. Sherborne, 31. Oriental Bank, ex parte, 10 in re, 236. Oriental Corp. v. Overend, 1( 250, 252. O'Rourke v. O'Rourke, 24. Orr;;. Bank, 215. Ort V. Fowler, 147. Osborne v. Moncure, 31. Otisfield V. Mayberry, 209. Quids V. Harrison, 109, 142. Outhwaite v. Luntly, 254. Outhwite V. Porter, 100. Overman v. Bank, 44, 46, 15 V. Oriental Corp., ( Owen V. Homan, 249. V. Von Ulster, 48, 49. Owsley V. Greenwood, 217. Pacific Bank ». Mitchell, 238 Packard v. Lyon, 168. Pagei!. Danaher, 259. , V. Gilbert, 195. V. Morrell, 35, 36. Paine ». Noeike, 221. ' V. Voorhees, 251. Palmer v. Bank, 128. V. Gardiner, 138. V. Hummer, 28. V. Pratt, 27. 1). Sargent, 254, 255. V. Stephens, 57. ». Whitney, 138 Pannell v. McMechen, 250. Paramore v. Lindsey, 260. Pardee v. Fish, 278, 282. Parish v. Stone, 120. Parker v. Burgess, 87, 92. ®. Gordon, 163. V. Greele, 44, 45. V. Maoomber, 90. V. Middleton. 121, 12 V. Plymell, 18. V. Riddle, 221. V. Stroud, 166, 282. V. Tuttle, 282. TABLE OF CASES CITED. Parkinson v. Finch, 118. Parks V. Inprram, 252. ParrK. Jewell, 143, 236. Parshley v. Heath, 130. Parsons ». Jackson, 17, 102. Partridge r. Davis, 124, 125. Pasmore v- North, 23. Pate V. Gray, 20. Patience v. Townley, 173. Patrick v. Clay, 217. *. Harrison, 109. Patterson v. Carroll, 69. f. Graves, 8. v. Poi rlexter, 278. V. Todd, 25, 206. Pattie V. Wilson, 235. Patton. y. Shanklin,256. Paul V. Joel, 195, 196, 197. * Peacock v. Purcell. 100, 161,104,183. V. Rhodes, 127. , Pease v. Hirst, 99, 149. V. Landauer, 212. Peaslee v. Bobbins, 284. Peairse v. Pembi;rth.v, 206. Pearson c. Crallan, 185. • V. Garrett, 27: Pecker v. Sawyer, 142. Peirce v. Pendar, 187. Pence !). Gale, 251. Penkivil v. Connell, 279. '.Penny v. Innes, 221. Pentz ». Stanton, 78. People's Bank v. Kf.pch, 194. Peoria R, R. Co. v. Neill, 215. Percival v. Dunn, 12. Perkins v. Bank,- 66. V- Cumuiinga, 111. Perreira v. Jopp, 42. Perring v. Hone, 255. Perry v. Bigelow, 280. Peruvian Railwav. I'n re, 76. Peters v. Hobbs, '178. Peterson v. Hubbrird, 44. V. Johnson, 109. ' Petillon V. Lorden, 4. Petit ». Benson, 51. Peto V. Reynolds, 4. Pettee v. Prout, 150. 'Petty V. Cooke, 107, 250, 252. Phelps, c. Borland,. 251; Philadelphia Bank V. Newkirk, 18. Philipe !). Haberlee, 187. Phillips V. Astling, 171, 207. V. Franklin, 217. 'v. Gould, 198. V. lui Thurn, 147, 216, 219, 230, 243. Philpot V. Bryant, 162, 167, 214. Phinney e. Baldwin, 68. Phippa V. Tanner, 16. Phipson V. Kellner, 130, 202. Phcsnix Ins. Co. v. Allen, 155, 183, Pickin V. Graham, 203. Picquet V. Curtis, 262. Pier V. Bollis, 239. V. Heinrichshoffen, 164, 173. Pierce ®, Burnham, 74. V. Cate, 171. V. Hight, 22. V. Kittredge, 43. V. Strathefs. 187. Pike, ex parte, 118. Pillans V. Van Mierop, 45. Pinard v. Klockman, 40.' Pine V. Smith, 141. Finer v. Clary, 140. Pinkham v. Macy, 27. Pinkney v. Hall, 124. Pinnes v. Ely, 125. Pinney v. McGregory, 138. Pitcher v. Barrows, 277. Pitman v. Kintner, 85. Planters' Bank v. Merritt, 270. , Plato V. Reynolds, 156. Plimley v. Westley, 6, 121, 221. Plumm=r a. Lyman, 44. Poirer v. Morrjs, 95, 97, 148. Polhill V. Walter, 84. PoUardr. Bank of Ensrland, 235.268 V. Bo-wen, 172. 179. V. Herries, 18,34, 167. V. Ogden, 288. Pooley r. Browne, 228. r. Driver, 80. Poorman v. Mills, 128, 282. .Pope V. Bank. 268. V. Heath, 51. V. Linn, 25. Porter?). Cushman, 128. Porterfield v. Butler, 74. Porthouse v. Parker, 199. Po,tt». Clegg, 271. 273. Potter 4>. Brown, 283. Potts V. Reed, 132, 134. Powell V. Waters, 24. Power V. Finnie, 18S. Powers V. Briggs, 78, 85. V. Lynch, 234. V. Silberstein, 251. Prange, ex parte, 181, 191, 193 Prather ». Young, 251. Pratt V. Bank, 79. V. Coman. 99. V. Hedden, 251. TABLE OF CASES CITED. xli Prayw. Maine, 236. Prehn v. Royal Bank, 211. Prescott V. Plyn, 81. 82. V. Hall, 118. Prescott Bank v. Caverly, 64, 75, 154, 222. Preston v. Whitney, 14. Viias, ex parte, 119. V. Dunlap, 151. V. McGoldrick, 186. V. Mitchell, 174. V. Neal, 242. V. Taylor, 27. Prideaux «. Collier, 162. V. Griddle, 164, 191, 269. Prince v. Brunatte, 75. V. Oriental Bank, 191, 247, 273. Protection Ins. Co. v. Bill, 27. Proutyu. Roberts, 111. Pruyn «. Milwaukee; 217. Pugh V. Grant, 142. PuUen V. Chase, 217. Putnam v. Dike, 265. V. Sullivan, 35. Pryor v. Bowman, 154, 162, Q Quinby v. Merritt, 13. R R. V. Bartlett, 3; V. Box, 7. V. Elliott, 15, 16. V. Randall, 8. Rabey v. Gilbert, 204. Raeflo V. Moore, 24. Ralli».Dennistoun,41, 234,236, 247. Ramchurn v. Lachmeechund, 267, 268. V. Radakiasen, 153, 154, 152, 176. Ramsey v. Young, 22. Rand v. Dovey, &1. Randall v. Moon, 235. Randolph v. Parish, 3. Ranger «. Gary, 140, 282. Rankeu v. Alfaro, 212. Ransom v. Mack, 196. Raper ». Birkbeck, 247- Raphael v. Bank, 98, 101, 102, 114. Rawlinson ». Stone, 116. Rawson t>. Davidson, 281. Raymond v. Middleton, 221. Rayner, ex parte, 78. , Read v. Adams, 159. V. Buffalo, 11. V. Hutchinson, 226. V. Marsh, 45. V. McNulty, 18. Reading v. Beardsley, 129. Redington v. Woods, 215. Redlich v. Doll, 36. Redman v. Adams, 12. Redmayne »., Burton, 60, 14" Redmond v. Stansbury, 137. Reed, ex parte, 238. V. Batchelder, 73. V. Roark, 56. t>. Trentman, 110. ti. Wiggins, 112. V. Wilson. 30, 83, 16^ Reener v. Bank, 151. Reese v. Gordon, 109. Reeside v. Knox, 11. Reg. t>. Watts, 2 1 5. Reid V. PurnivaJ, 100. V. Morrison, 169, 198. Renss Factory v. Reid, 217. Renwick v. Tighe, 186. Requa v. Collins, 187. Rew ii.'Pettit, 83. Rex V. Hart, 38. Reynolds v. Chettle, 166. V. Doyle, 230. 264, V. Wheeler, 231. Rhett V. Poe, 199. Rhode V. Proctor, 193, 202. Rhodes, ex parte,, 118. V. Seymour,' 283. V. Smethurst, 266. Rice e. Gove, 86« V. Riatt, 95. V. Stearns, 129,132, 13: Rich V. Starbuok, 8. Richards v. Betzer, 109. 11. Daily lk2. V. D.irst, 59. V. Franklin, 124. V. Richards, 20, f 263. Richardson v. Daily, 142. V. Ellett, 20,22. V. Lincoln, 148. 0. Martyr. 10. ».. Richardson, ] Riehdale. ex parte, 95. Ricketts V. Bennett, 88. Kickford v. Ridge, 183. Ridd V. Moggridge, 279. Kideout v. Bristow. 22. ' Rider v. Taintor, 128. Riggs V. Lindsay, 210, 218. Right Worthy,, etc.. Odd F( First Nat. Bank, 81. Riley v. Dickens, 16. Rindge ». Kimball, 172. Rindskopf v. Doman, 203, 204. xlii TABLE OF CASES CITED. Ringo V. Biscoe, 20. Rittenhouse v. Animerman, 85. River Steamer Co., in re, 266. Rivers v. Thomas, 221. Roach V. Thompson, 231. Robarts ». Tucker, 90,' 92, 127, 216, 239, 240, 241, 242, 273. Roberts, ex parte, 226. V. Bethell. 24, 47. V. Corbin, 210, 211, 212. V. Fishei?', 229. V. Haskell, 226. V. Masters, 220. V. Place, 116. V. Taft, 187. Robertson v. Burdekin, 6, 70. / V. Kensington, 131. «. Smith, 232. Robey v. Oliver, 212. 'Robins v. May, 9. Robinson v. Ames, 158. V. Hawksford, 270. V. Hodgson, 114. V. Lair, 125. V. Perrv, 142. V. Reed", 255, 258. «. Reynolds, 104, 108. V. Smith, 100. f). Wilkinson, 118. ti. Yarrow, 216. Robson V. Bennet, 268. V. Oliver, 176. 208, 227.- Rock Co. Bank v. HoUister, 133. Rodgers v. Rosser, 25. Rodney v. Wilson, 64. Roehner ». Knickerbocker Ins. Co., 31. Roffey V. Greenwell, 20, 27. Rogers v. Gallagher, 239. V. Langford, 227. V. Miller, 151. V. Vosburgh 254. V. Ware, 148. Rogerson ». Ladbroke, 274. Rollin r. Steward, 211. Rolls V. Pearce,* 275. Rooker v. Moores, 130. Roosa ». Crist, 69. Root V. Cook, 113. Rordunz v. Leach, 150. Roscow V. Hardy, 183. Rose V. Sims, 94. V. Williani'i, 252.' Rosher v. Kieran, 185. Ross V. Doland, 58. i V. Espy, 64. Rossiter v. Rossiter, 82. Rothschild ». Corney, 271. V. Currie, 172, 178, 180. Rouquette v. Overman, 19, 34, 173, 178, 214, 219. Rowe'v. Tipper, 182, 190, 192, 206. V. Young, 50, 51, 52, 161, 174, 175, 214. Rowley V. Ball, 151. Roxborough v. Messick, 95, 99, 100. Royce v. Barnes, 149. Royer v. Bank, 100. Ruff V. Webb, 10, 56. Ruiz ». Rennuld, 44. Rumball v. Bank, 14, 281. Russell V. Langstaffe, 37, 68. V. Phillins,-47, 52. V. Powell, 11. V. Swan, 117. V. Whipple, 278. Ryan v. Chew, 95. Ryhiner v. Peickert, 137. S Sackett «. Palmer, 27. Salmon v. Webb. 62, 66. Salter v. Burt, 30, 33. Salt Spring Bank v. Burton, 163. Sanborn v. Neal, 86. Sanders v. McCarthy, 20, 30. Sanderson ». CoUraan, 215. Sands v. Clarke, 171, 176. Sanford v. Mickles, 282. Saul V. Jones, 166, 170, 255. Saunderson v. Jackson, 57.- V. Piper,16. Savage v. Aldren, 263. V. King, 75, 116. Savings Bank v. Shaffer, 254, 259. Sawyer ». Wiswell, 104, 260. Sayre ». Wheeler, 25. Scard v. Jackson, 36. Scarpelini v. Atcheson, 115, 266. Sohimmelpennich v. Bayard, 53. Schmidt v. Schmaelter. 57. Schmittler v. Simon, 11. Schneider ». Schiffman, 221. Schnewind v. Hacket, 254. Schofield ex parte, 100. Scholey ». Ramsbottom, 146,241. Schroeder v. Bank, 212. Schryver v. Hawkes, 254. Schultz V. Astley, 36, 37, 136, 147. Schwarz v. Oppold, 254. ScoUans e. Plvnn, 111. Scott V. Lifford, 96. 106, 107. Scudder v. Union Bank, 43, 44, 69. Sea V. Glover, 29. TABLE OF CASES CITED. xliii Seacord v. Burling, 10. Sears v. Lantz, 124. Seaton ». Hipnenian,31. Seaver v. Lincoln, 282. V. Phelps 78. Sebag V. Abitkol, 160. Second Nat. Bank v. Gaylord, 208. V. McGuire, 204. V. Williams, 274. Security Bank v. Bank, 268. Segrum v. Prescott, 110. Spibel V. Vaughan, 257. Seldonridge v. Connable, 22. Seligman v. Huth, 62. Sentanoe v. Poole, 73. Serreli). Railway Co., 271, 283. Seymour v. Mickey, 221. Shaffer e. Maddox, 170, 270. Shamokin Bank v. Street, 13. Shand v. Dubuisson, 212. Shank v. Butsch. 57. Sharp, ex parte, 274. V. Bailey, 198. Sharpe ti. DreW. 156.' Shaw V. Reed, 165. Shaylor v. Mix, 186. Shed V. Brett, 164, 168, 186, 263, 264. Shelburne Bank v- Townsley, 187. ■ 190. Sheldon v. Horton, 203. V. Parker, 117, 118. Shelton e. Braithwaite, 194, 205. V. Bruce, 27. V. Gill, 18. Shepard v. Whetstone, 258. Shepherd v. Chamberlain. 164. Sheridan v. Carpenter, 243. Sherrington v. Jermyii, 253, 2.57. V. Yates, 115, 116. Shirley ?;. Howard, 111. Shirts V- Overjohn,. 58. ^ Shoemaker v. Bank, 186. Shreeves v. Allen, 103. Shriner v. Keller, 170. Shute V. Robins. 154. Shuttleworth v. Stephens, 4. Sibree». Tripp, 234, 278. Sice V. Cunningham, 282, 283. Sichel V. Birch, 60. Siflkin V. Walker, 78. Sigerson v. Matthews, 202. Siggers V. Lewis, 173, 219, 223. Sigourney v. Clarke, 124. V. Lloyd, 132. Simon v. Cridland, 96. Simons v. Morris, 143. Simpson v. Pacific Insurance Co., 161, 269. Simpson v. Stackhouse, 259. Simpson v. Turney, 192. Sinker v. Tletoher, 124, 222. Sistermans v. Field, 113. Sit tig V. Birkestack, 35. Skelton v. Dustin, 33, 64, 163 Skilbeck v. Garbett, 186. Skillman v. Titus, 272. Slack V. Beach, 64. Slawson v. Loring, 75, 78. Sleigh V. Sleigh, 106, 198, 23( Sloan V. McCarty, 12. Sloman v- Cox, 260. Small V. Clewley, 118. Smalley v. Wight, 202, 277. Smead V. R. R. Co., 76, 77. Smith V. Allen, 278. V. Bank. 264. V. Bartholomew, 246. V. Becket, 202. V. Bellamy, 8, 158, 170 V. Braine, 114. V. Brown, 210. V. Chester, 216. V. Clarke, 128. V. Clbpton, 17. V. (Jurlee, 179. V. Janes, 271. V. Johnson, 77, 89. e. Kendall, 18, 31. V. Livingston, 114. ■u. Lockridgp, 48, 256. V. Mace, 258. ». Marsack, 75, 116, 21 V. McClure. 6, 7, 42, 1! V. Mead, 70. V. Mercer, 208. 243. V. Miller, 161, 269, 270 V. Milton, 43. V. Mullet, 189. V. Mundy, 60.- V, Nightingale, 17. V. N. S. Wales Bank 158, 176. V. PoiUon, 171. V. Rnaoh, 183. V. Sawyer, 248. ». Sbeppard, 240. V. Sloan, 88. , V. Smith, 92, 120, 254. e. Van Blarcom, 28. t.'. Vertue, 43, 51, 175, 1 V. Whiting, 137. Smith's .^ppeal, 235. Smyth V. Strader, 87. xliv TABLE OF CASES CITED. Snaifh r. Mingay, 275. Snee v. Prescott, 182. Snow u. Perkins, 195. Snyder v. Van Dorers, S6. Soarps V. Glyn, 7, 127, 181, 138. Society Generale v. Bank, 39, 40, 58,106. Solarte V. Palmer, 182, 196, 197. Solly V. Hinde, 108. Southall V. Rigg, 94, 260. Southard v. Porter, 119. So-ward v. Palmer, 161, 260. Spalding v. Vandercook, 109. Spaulding v. Andrews, 43,46. Spear v. Pratt, 43. Spencer v. Bank. 201. «. Harvey, 200. Sperry v. Horr, 17. V. Spalding, 113. Spies «. Gilmore, 171. Spindler v. Grellett, 174.: Spitler V. James, 36, 38. Spurck V. Lennon, 87. Stacy V. Brtnk, 164, 165. V. Kemp, 109. Stafford P. Yates, 188. Stagg V. Elliott, 83. Stainback v. Read, 82. Stalker v. M'Donald, 100. Stanton v. Blossoin, 185. Starr v. Torrey, 109. Startup V. Macdonald, 156, 163. State V. Gates, 271. V. Stratton, 255. State Bank v. Fearing, 222. V. Slauehter, 194. State Pire Ins. Co. in re, 226. Steele v. McKinlay, 48. 220, 221. V. Oswego Co., 281. ' Stein V. Passmore, 221. V. Ygle.sias, 143. Steman v. Harrison, 45. 46. ' Stephens v. Bank, '22, 77. V. Graham, 254. V. Thompson, 261. Stephenson v. Dickson, 189. Stevens D. Beals, 75. V. Blunt, 28. V. Campbell, 109. V. Park, 261. V. Wood, 25. Stevenson v. 0'N"eal, 129. Stewart r. And rson, 63. V. Bank ,257. V. Hidden, 1^45. I). Kennett. 184. V. Smith, 270. Still-well V. Aaron, 253. Stix V. Matthews, 69, 121, 192. St. John /■. Roberts, 206. St. Louis Ins. Co. v. Homer, 65. Stooken v. CoHin, 185. Stockman ». Parr, 194. Stockwell V. Bramble, 46. , Stoddard v. Penniman, 255, 257. Stone V. Butt, 149. V. Metcalfe, 68. Stoneman v. Pyle, 17. Storm t). Stirling. 6. Story V. Patten. 229. Stotts «. Byers, 99. Stowell V. Raymond, 221. .Strachan v. Muxlow, 65. Straker v. Grabani, 164, 155, 176. Stratton v. Matthews, 231. Straw bridge ». Robinson, 38. Streeter v. Fort Bank, 188.' Strong V. Foster, 107, 236. ' V. King, 30, 154. Struthers v. Kendall, 167. Stuckert v. Anderson, 164. StudebakSr Mfg. Go. v. Montgom- ery, 85. Stults V. Silva, 17, 29. Sturdivant v. Hull, 65. Sturdy v. Henderson, 32. Sturges V. Bank, 43. V. Crowninshield, 233. Sturtevant v. Ford, 107, 143. Sulfell r. Bank of England, 223, 254. Summers v. City Bank, 211. Suse V. Pompe, 19, 64, 67, 222, 224, 225. Susquehanna Valley Bank v. Loo- mis, 223. Sussex Bank v. Baldwin, 168. Sutton V. Toomer, 254, 259. Swan, ex parte, 106, 142, 143, 247, 249. «. Cox, 51. V. North British Co., 102, 121, 1^7. Swannell v. Watson, 58. Swartz V. Redfield, 162. Swasey v. Vanderheyden, 73. Sweeney v. Easter, 132, 134. Sweeting v. Halse, 246. Sweetser v. French, 16, 87, 221. S wetland v. Creigh, 13. Swift V. Stevens, 151. V. Tyson, 95, 100. Swinyard v. Bowes, 208. Swope V. Ross, 44, 53, 239. TABLE OF CASES CITED. xlv Sylvester v. Downer, 221. Symons v. Mayo, 233. T Taddiken v. Cantrell, 265. Talbot 1). Bank, 168. Talcott, ex parte, 288. Tappan i;. Bailey. 88. V. Ely, 10, 127. Tarleton v. Shingler, 253. Tarpley v. McWhorter, 239. Tassel v. Lewis, 178. Tate V. Hilbert, 120, 274. Taylor, ex parte, 238. V. Atkinson, 58. ■0. Curry, 10, 66. V. Dobbin, 56. V. French, 64, 201, 203. V. Jones, 204. «. Newman. 3. V. Shelton, 86. V. Rip, 273. V. Snyder, 166, 169. V. Tompkins, 13. Temple v. PuUen, 37, 38. Terry v. Allis, 99. V. Parker, 170. Tevis V. Young, 4. , Thacher v. Stevens, 220. Thackray v. Blackett, 198, 202. Thayer v. King, 151. Thicknesse v. Bromitow, 88, 222. Thiedman v. Goldsmidt, 100. Third Nat. Bank v. Ashworth, 204. V. Clark, 64. V. Snyder, 88. Thomas v. Fenton, 236. V. Thomas, 107. Thompson t). Bowne, 261. V. Clubley, 22, 108. V. Shepherd, 107. V. Sloan, 13. V. Williams, 194. Thornton v. Maynard, 149, 238. V. Wynn, 204. Thorp V. Craig, 34. Thorpe v. Combes, 63. Thurman v. Van Brunt, .21. Ticknor v. Branch Bank, 218. Tidmarsh v. Grover, 256. Tillinghast v. Holbrook, 75. Timmins v. Gibbins, 227, 229. Timms v. Delisle, 187. Todd V. Lee, 76. ' V. Shelbourne, 100. Tolman v. Hanrahan, 49. Tombeokbee Bank v. Dumell, 48 Tomeny v. Bank, 187. Tomlinson v. Kinsella, 282. Tondeur, ex parte, 158. Tooke V. Newman, 100. Toomer v. Rutland, 35, 3'' '>f'f^ Tootell, ex parte, 29. Torrance v. Bank, 260. Torrey v. Foss, 151, 198. Totum ». Catomore, 259. Tower v. Bank, 151. V. Richardson, 65. Towner. Rice, 12, 18, 70, V. Townsend v. Derby, 21, 105, V. France, 88. V. Lorain Bank, II 197. V. Star Co., 256. Townsends v. Bank, 229. Townsley v. Sumrall, 155. Trader v. Chidester, 17. Trafford ». Hall, 142. Tramfflell v. Henderson, 224 Trask v. Martin, 30. Treacher «. Hiuton, 207. Treat v. Cooper, 15. V. Smith. 251. Tremont Bank, ex parte. 20 Treuttel v. Barandon, 132, 1 Trieber v. Bank, 24, 25. Trigg V. Taylor, 241. Triggs V. Newnham, 163. Trimby V. Vignier, 70, 71. Trowbridge v. Cushman, 79- Troy Banks. Lauman, 51, 1 Truman v. Fenton, 94. V. Loder, 79. Trust Company v. Bank, i 125. Trustees v.. Hill, 98, 100. Tucker v. Ronk, 94. V. Tucker, 25. 151. Tucker Manufacturing Co. banks, 65, 85. Turner v. Keller, 222. V. Leach, 192, 204. ».R. R. Co.,11. V. Rogers, 94. V. Samson, 170, 199. V. Stones, 208, 227. Tuttle V. Bartholomew;. 125. V. Standish,, 151. Twibell V. London Suburba: 211. Twogood, ex parte, 63, 100 U Ubsdell V. Cunningham, 29. xlvi TABLE OF CASES CITED. Ulster Bank v. McFarland, 45. Union Bank v. Cdle, 213. V. Cooley. 251. V- Middlebrook, 91. V. Oceana Bank, 212. V. Roberts, 255. V. Underhill, 87. V. Willis, 169, 221. United States v. Bank, 68. V. Spalding, 257. United States Bank v, Georgia. Bank. 243. , Usher V. Daunoey, 23, 38, 274. Valentine v. Holloman, 8. Talk «j.GaiUard,- 193. Valley Banke. Meyers, 252. Vance v. Lowther, 254. Van- r.runt v. Vanghan, 186. Van Ihizev v. Howe, 36. Van Etta v. Evenson, 35. Van Raughj). Van Arsdaln, 233, 234. Van Vechten v. Pruyn, 185. Van Wart v. WoUey, 226, 227. Varner v. Nobleborough, 261. Vater ». Lewis, 7. Vaughan V. Halliday, 212. Veal V. Veal, 120. Veazie Bank v. Winn, 31, 269, 271. Vermilye v. Adams, 280. Vernon v. Hankey, 274. Viale V. Michael, 184, 193, 198. Vielie v. Osgood, 57. Vincent v. Horlock, 78, 128. Vinton v. King, 140. h. Peck, 25, 100. Vogle V. Rippfir, 258. Voltz V. Harris, 208. Voorbies «. Atlee, 172. Von Windisch i>. Klaus, 110. W Wackerbath, ex parte, 53, 180. Wade V. Wade, 66. V. Withington, 256. Wain V. Bailey, 151. Wait V. Poraeroy, 255. Waitbman v. Elsee, 278. Walbridge v. Harron, 94. Walker v. Bank, 51, 52, 82, 160, 197. V. Barnes, 223. V. Hamilton, 211. V. Macdonald, 128, 186, 164, 239. V. Rogers, 204. I Walker «. S'etson, 152, 201. V. Wait, 277. Wallace v. Agry, 154. V. Bank, 82. V. Crilley, 168. V. Jewell, 255, 279. V. M'Connell, 174, 175. Walsh V. Blatchley, 41,159. V. Dart, 154, 162. V. Lennon, 87. Walter v. Cubley, 255. p. James, 236. Walters v. Brown, 186, 189. Walton V. Hastings, 254. V. Miscall, 174, 176, 207, 'a 4. *. Mnndeville, 43. V. Williams, 48. Wamesit Bank r. Buttrick, 192. Ward ». Allen, 43, 215. t'. Evans, 226. V Morrison, 217. V. Wick, 251. Wardens v. Moore, 3. Warner v. Iron Co., 175. Warren v. Chapman, 111. V. Haight, 144. V. Scott, 6, 7. Warren Bank v. Suffolk Bank, 165. Warrington v. Early, 18, 254. Warwick v. Nairn, 109. V. Rogers, 235, 247. Washband v. Washbaud, 20, 26. Washington Bank v. Ecky, 223. Watervliet Bank ». White, 137. Watkins t>. Eigg, 263. Watkins v. Halstead, 74. V. Maule, 118. Watrous v. Holbrook, 4. Watson V. Chesire, 129, 222. V. Evans, 78, 137. V. Flanagan, 96. V. Poague, 252. V. Russell, 61, 97, 104, 109. V. Tarpley. 159. Watt V. Riddle, 218. Way V. Bassett, 63. t). Smith,- 17, 29. V. Sperry,, 94. Weare v. Gove, 84. Weaver ». Fries, 65. V. Penn, 194. Webb t>. Fairmaner, 30. Webber v. Maddocks, 253, 257. Webster t). British Empire Co., 217. V. Kirk,-264. Weddigen v. Boston F. Co., 261. TABLE OF CASES ClTED. xlvii Wedlake v. fiurlfey, 132, 134. Wegersloffe v. Eeene, 51. \yeinstock J). Bellwood, 212. Welch V. Allington, 260. V. B. C. Mfg. Co., 198. V. Goodwin, 242, 243. Wells V. Brigham, 6, 12. V. Hopkins, 108. V. Schoonover, 148. V. Whitehead, 40. Welsh V. Bank, 90. Welton V. Adams, 151. Wenman v. Mohawk Insurance Co., 268, 265 1 Wernse v. Hall, 265. West V. Brown, 168, 189. V. Foreman, 11. West Bank v. Fulmer, 199. ' West Boston Bank v. Thompson, 139. Westfali V. Braley, 229. Westgate v. Healy, 8. West London Commercial Bank v. Kitson, 84. Westminster Bank v. Wheaton, 267. Westphal ». Ludlow, 100. Weston V. Hight, 120. Wethey v. Andrews, 282. Wharton v. Wright, 193. Whatley v. Tricker, '^46. Wheat V. Kendall. 251, 252, 253. \7heeler v. Field, 169. V. Guild, 239. V. Johnson, 148. «. Warner, 263. V. Webster, 50, 68. V. Wheeler, 117. Wheelock v. Freeman, 255, 258. Whistler v. Forster, 101, 110, 118, 119, 121. Whitaker v. Bank. 163, 272. ■0. Kuhn, 119. White, ex parte, 258. V. Coutinpntal National Bank, 215, 243. V. Heylman, 121. V. North, 278, 279. V. R. R. Co., 281. V. Richmond, 13. V. Smith, 25, 30. V. Stoddard, 172, 185. . Whitehead v. Walker, 52, 159, 160, 179, 184, 219, 262, i;63. Whitesides v. Bank, 255. Whitlock V. Underwood, ^5. Whitmore v. Nickerson, 35, 63, 255, 258. Whitney «). Dutch, 73. V. Snow, 86. V. Snyder, 68. Whitwnrth v. Adams, 253. Whitwell V. Winslow, 17. Widoe jj. Webb, 111. Wienholt «. Spitta, 110. WifEen v. Roberts, 162. Wilbur V. Jernegan, 260. Wilcox K. Routh, 193. Wilde V. Armsby, 259. V. Keep, 80. Wilders v. Stevens, 138. Wilkins v. Dawes, 172. 1). Jadis, 162, 163. Wilkinson v. Johnston, 12f 244, 247. V. Simson, 233, 2 V. Stonev, 92. V. Unwin, 139, 2 Wilks V. Hornby, 106. ' Willans v. Avers, 8, 224, 225 Willeson v. Patteson, 73. Willett V. Shepard, 259. Williams v. Baker, 20. V. Bank, 201, V. Bayley, 91. V. Germaine, 32, I 181, 182, 229. c. Institution, 222. V. James, 148, 237. *. Matthews, 188. • V. Robins, 78. V. Shadbolt, 134. V. Smith, 189. V. Winans, 46. Williamson v. Johnson, 89, 1 y. Watts, 73. Willis V. Bank, 103. V. Barrett, 8, 136. V. Cresey, 125. V. Green, 194. Willoughby v. Moulton, 57. Wilmot V. Williams, 166. Wilson V. Clements, 44. V. Forder, 88. Wilson V. Holmes, 132, 133, V. Senier, 200, 201. Wilton V. Baton, 94. Winchell v. Crider, 58. Windham Bank v. Norton, 1( 172, 173, 191. Windle v. Andrews, 179, 22i Winship v. Bank, 87. Wintermute v. Post. 51. Winters v. Insurance Co., 1( Wirth V. Austin, 170, 198. Wise r. Charlton, 280. xlviii- TABLE OF CASES CITED. Wiseman ». Enston, 87. Wisner v. Barclwell, 111. Witte V. Williams, 2, 138, 245. Wood «. Bank, 101. V. Connop, 150. V. Corl, aO. V. McMeans, 263. V. Pugh, 249. V. Bteele, 254, 267. , V. Surrells, 64, 161. Woodbury v. Crum, 200. V. Roberts, 28. V. Woodbury, 80. Woodcock V. Houldsworth, 186. Woodland v. Fear, 227, 273. Woodman e. Boothby, 237. Woodruff V. Bank, 66, 267. V. Moore, 262, 264. V. Munroe, 92. / V. Plant, 269: Woodward v. Genet, 278. B.Pell, 145, 209, 234, 237, 238. Woodworth V. Hun toon, 103. Woods V. Dean, 203. V. North, 17. ' V. Thiedman, 244. V. Wilder, 73. V. Woods,236. Wookey v. Pole, 121. Woolen V. Ulrich, 15, 28. ■v. Vanbirk,107. Wooley ». Sergeant, 9; . Woolfolko. Bank, 254. Woolsey V. Crawford, 218. Wootenv. Maultsby, 145. Worcester Bank v. Bank, 62, 103. V. Wells, 45. Worden ». Dodg«, 11. Works V. Hershey, 29. Worley v: Harrison, 30. Worrall v. Gheen, 257. Worths. Case, 61. Wright I'. Brosseau, 87. V. Flynn, 58. V. Hart, 13. V. Maidstone, 151, 209. V. Inshaw, 254, 257. V. ^haiwcross, 190. e. Wrigbt, 151. Wulschhner v. Sells, 59. Wvatt V. BviriR, 94. Wyckoff V. Anthony, 31. Wyer v. Bank, 114. Wyld, ex parte, 247, 249. Wyman v. Adams, 170, 188. 200, 283. Wyerhauser v. Dun, 36, 255. Wynen v. Scbappert, 186, 191. Wynn v. Alden, 196. Wynne v. Jackson; 69. V. Eaikes, 42, 43, 47. ^ T Tale {>. Dederer, 75. Yates, ex parte, 125, 220. V. Dalton, 88. Yates i\ Hoppe, 230. V. Nash, 8. Yeaton v. Burney, 174. Yglesias v. Bank, 246, 251. Yorkshire Banking Co. v. Beatsoij, 49,81. Young V. Glover, 125, 220. Young «. Grote, 241. V. Shroner, 142. Youngs V. Stahelin, 226. Z Zimmerman v. Anderson, 15. TABLE OF ENGLISH CASES OYERRUL DOUBTED, OR EXPLAINED- Allen V. Kemble (1848), 6 Moore, P. C. 314, qualified ] quette v. Overman (1875), 10 L. E. Q. B. at 540. Austin V. Bunyard (1865), 6 B. & S. 687, discussed G-at Fry (1877), 2 L. K. Ex. D. at 367. Bacon V. Searles (1788), 1 H. Bl. 88, explained Jones v. Bi hurst (1850), 9 0. B. at 185. Banbury «. Lisset (1774), 3 Stra. 1311, overruled GriflS "Weatherby (1868), 3 L. R. Q. B. at 759. Beck V. Robley (1774), 1 H. Bl. 89, explained Jones v. Br hurst (1850), 9 0. B. at 185. Biokerdike v. BoUmann (1787), 1 T. R. 405, regretted Cart Flower (1847), 16 M. & W. at 748. Birmingham Banking Co. ^x parte (1868), 3 L. R. Oh. commented on ^e London Bank (1871), 6 L. R. Oh. at Bloxam, Ex parte (1801), 6 Ves. 449, doubted Be Gome (1875), 1 L. R. Oh. D. 137, see at 143, overruled Ex^ Newton (1880), 16 Oh. D. at 336, 0. A. Boulcott v.Woolcott (1847), 16 M. & W. 584, explained M V. Walker (1850), 15 Q. B. at 599. Boulton V. "Welsh (1837), 3 Bing. - N. C. 688, overruled L V. Gompertz (1840), 6 M. & W. at 403. Britten v. Webb (1834), 3 B & 0. 483, commented on M V. Walker (1850) 15 Q. B. at 599. Brown v. Davies (1789), 3 T. R. 90, overruled Ex parte £ (1868), 6 L. R. Eq. at 358. Cameron v. Smith (1819), 3 B. & Aid. 305, commented Laing v. Stone (1838), 3 M. & Ry. at 563. Castrique v. Buttigieg (1855), 10 Moore, P. 0. 115, expla Abrey v. Crux (1869), 5 L. R. 0. P. at 43. Catton V. Simpson (1838), 8 A. & E. 136, overruled Aldous v. Cornwell (1868), 3 L. R. Q. B. at 578. (xlix) I TABLE OF CASES OVERRULED, DOUBTED, ETC. Charles v. Marsden (1808), 1 Taunt. 234, commented on Parr ■0. Jewell (1855), 16 C. B. at 712. Collinrido-e u. Farquharson (1816), 1 Stark. 259, commented on Oulds V. Harrison (1854), 10 Exch. at 578. Columbies v. Slim (1.772), 2Chittv R. 637, explained Deuters v. Townsend (1864), 33 L. .1. Q. B. at 304. Crofts V. Baal (1851), 20 L. J. C. P. 186, commented on Currie V. Misa (1875), 10 L. R. Ex. at 164. Crouch V. Credit Foncier (1872), 8 L. R. Q. B. 374, explained and qualified Goodwin v. Robarts (1875), 10 L. R. Ex. at 355, and 1 L. R. Ap. Ca. at 494. De Berdt v. Atkinson (1794), 2 H. BL 336, overruled Maltass u Siddle (1859), 28 L. J. 0. P. 258. De la Chaumette v. Bank of England (1829), 9 B. & C. 208, explained Currie v. Misa, (1875), 10 L. R.Ex. at 164. Down V. Hailing (1825), 4 B. & 0. 330, dissented from Bank of Bengal v. Macleod (1849), 5 Moore I. A. 1. Evans v. Cramlino;ton (1*687), 1 Show. 4, explained Sigourney V. Lloyd (1828), 8 B. & C. at 631. Flight V. Maclean (1846), 16 M. & W. 51, explained Hooper v. Williams (1848), 2 Ex. Ch. at 19. Frith V. Forbes (1856), 4 DeG. F. & J. 409, explained Ex parte Arbuthnot (1870), 3 L. R. Ch. D. 477, and semble overruled Brown v. Kough (1884), 29 Ch. D. 848, C. A. Gibbon V. Scott (1817), 2 Stark. 286, explained Maillard v. Page (1870), 5 L. R. Ex. at 318. Gill «. Cubitt (1824) 3 B. & C. 466, dissented from Bank of Bengal v. Macleod (1849), 5 Moore I. A. 1. Goodall V. Wrav (1835), 4 Dowl. 76, explained Whitehead v. Walker (1843), 10 M. & W. at 698. Goupy V. Harden (1816), 7 Taunt. 159, explained Castrique v. Buttigieg (1855), 10 Moore P. C. at 115. Graham Ex parte (1856), 5 DeG. M. & G. 356, overruled Ori- ental Corp. V. Overend (1871), 7 L. R. Ch. at 152. Gray v. Milner (1819), 8 Taunt. 739, explained Peto v. Rey- nolds (1854), 9 Exch. at 415. Harvey t). Cane (1876), 34 L. T. N. S. 64, doubted Hogarth 1). Latham (1878), 3 Q. B. D. 651, C. A. Hindhaugh v. Blakey (1678), 3 0. P. D. 136, overruled by Steele v. M'Kinlay (1880), 5 App. Cas. at 782, 785. Ingham v. Primrose (1859), 7 C. B. N. S. 82, dissented from Baxendale v. Bennet (1878), 3 L. R. Q. B. D. at 532. TABLE OF CASES OVERRULED, DOUBTED, ETC. li Inman v. Clare (1858), Johns. 769, explained JSx parte Stephens (1868), L. R. 3 Oh. at 755, Johnson v. Kennion (1765), 3 Wils. 263, discussed Cook v. Lis- ter (1863), 33 L. J. C. P. at 137. Jones V. Broadhurst (1850), 9 C. B. 173, qualified Cook v. Lister (1863), 33 L. J. C. P. at 136, discussed Thornton v. May- nard (1875), 10 L. R. C. P. at 69S. Jones V. Lane (1839), 3 Y. & 0. 381, overruled Deuters v. Townsend (1864), 33 L. J. Q. B. at 304. Keene v. Beard (1860), 8 C. B. N. S. 373, qualified Hppkinson V. Porster (1874),- 19 L. R. Eq. 74. Kirk V. Blurton (1841), 9 M. & W. 384, doubted Forbes v. Marshall (1855), 11 Exch. at 180. Lambert, Ex parte (1 794), 13 Ves. 179, overruled Ex parte ISwan (1868), 6 L. R. Bq. at 358. LeFevre v. Lloyd (1814), 5 Taunt. 749, explained Castrique v. Buttigieg (1855), 10 -Moore P. C. at 115. Lewis u. Reilly (1841), 1 Q. B. 349, discussed "Lindley on Partnership," 3rd ed. p. 433. MoNair «. Fleming (1813), Mont, on Partnership, 37, doubted Yorkshire Bank v. Beatson (1880), 5 C. P. D. at 114, C. A. MoNeilagew. Holloway (1818),' 1 B. & Aid. 218, qualified Hart V. Stephens (1845), 6 Q. B. at 943. Marsh v. Newell (1808), 1 Taunt. 109, explained Deuters v. Townsend (1864), 33 L. J. Q. B. at 304. Matthews «. Blnxsome (1864), 33 L. J. Q. B. 309, explained Steele v. M'Kinlay (1880), 5 App. Gas. .at 773, H. L. Mertens v. Winnington (1794), 1 Esp. 113, doubted Ex parte Wyld (1860), 2 DeG. F. & J. at 650. Musgrave w. Drake (1843), 5 Q. B. 185, dissented from Hogg V. Skeen (1865), 18 C. B. N. S. at 436; 34 L. J. C. P. at 154. Napier v. Schneider (1810), 13 East, 430, dissented from Re Gen. South Amer. Co. (1877), 7 L. R. Ch. D. at 644, Oulds V. Harrison (1854), 10 Exch. 573, explained lie Anglo- Greek Steam Nav. Co. (1869), 4 L. R. Ch. at 177. Parry v. Nicholson (1845), 13 M. & W. 778, doubted Hirsch- mann v. Budd (1873), 8 L. R. Ex. at 173. Partridge v. Bank of England (1846), 9 Q. B. 396, qualified Goodwin V. Robarts (1875), 10 L. R. Ex. at 354. Phillips V. Astlipg (1809), 2 Taunt. 306, explained Hitchcock V. Humfrey (1843), 5 M. & Gr. at 564. lii TABLE OF CASES OVERRULED, DOUBTED, ETC. Pike V. Street (1834), M. & M. 326, explained Foster v. Jolly (1835), 1 O. M. & R. at 708. Randall v. Moon (1853), 31 L. J. G. P. 2^6, explained Cook v. Lister (1863), 33 L. J. 0. P. at 124, 127. Beg. V. Hawkes (1840), 2 Moore, G. 0. 295, overruled Peto v. Reynolds (1854), 9 Exch. at 415. Reid.'y. Funiival (1833), 1 Gr. & M. 538, discussed Cook v. Lis- ter (1863), :i2 L. J. C. P. at 127. Rideout v. Bristow (1830), 1 Cr. & J. 231, discussed Nelson v. Serle (1838), 4 M. & W. at 799. Robarts.v. Tucker (1851), 16 Q. B. 560, discussed Woods v. Thiedemann (1863), 1 H. & C. at 495. Rothschild V. Currie (1841), 1 Q. B. 43, doubted Allen v. Kem- ble (1848), 6 Moore P. C. at 323, explained and qualified Home V. Rouquette (1878), 3 L. R. Q. B. D.,at 531, 533. Rowe V. Young (1820), 2 Bligh. H. L. 391; 3 B. & B. 165; overridden by 1 & 3, Geo. IV. c. 78. Sainsbury v. Parkinson (I860), 18 L. T. N. S. 198, explained Ancona v. Marks (1863), 7 H. & N. at 686; 31 L. J. Ex. at 166. Scholey «. Welsby (1797), Peake, N. P. C. 34, doubted Phillips ,■ V. Warren (1845), 14 M. & W. 380. Shellard Ex parte (1873), L. R. 17 Eq. 109, disapproved Buck V. Robson (1878), 3 Q. B. D. at 689. Sleigh V. Sleigh ■(1850), 5 Exch. 514, discussed ^ajoarte Bishop . (1880), 15 Ch. D. at 410, 417. Smith «. Mercer (1815), 6 Taunt. 76, discussed Wilkinson v. Johnson (1824), 3 B. & G. at 437. Solarte v. Palmer (1834), 1 Bing.N. G. 194, regretted Everard V. Watson (1853), 1 E. & B.'at 804; qualified Paul v. Joel (1858), 27 L. J. Ex. at 384. Strange v. Price (1839), 10 A. & E. 125, overruled Paul v. Joel (1858), 27 L. J. Ex. at 383. Strong V. Foster (1855), 17 G. B. 301, dissented from Ewin v. Lancaster (1865), 6 B. & S. at 576. Tindal v. Brown (1786), 1 T. R. 167, overruled Chapman v. Keane (1835), 3 A. & E. at 197. Tinson v. Francis (1807), 1 Camp. 19, dissented from Ex parte Swan (1868), 6 L. R. Eq. at 358. Trimby «. Vignier (1834), ,1 Bing. N. C. 151, explained and discussed Bradlaugh v. De Rin (1870) 5 L. R. C. P. 473. Vanderwall v. Tyrrell (1837), M. & M. 87, explained Geralopulo. V. Wieler (1851), 30 L. J. G. P. at 108. TABLE OF CASES OVERRULED, DUUBTED, ETC. liii Walker v. Barnes (1813), 5 Taunt. 240, dissented from Siggers ti. Lewis (1834), 1 Or. M. &R. at 370. Walwyn v. St. Quentin (1803), 1 B & P. 653, overruled Cory V. Scott (1820), 3 B. & Aid. 622. "Waxing, Ex parte (1815), 19Ves. 345, explained Vaughan u. Halliday (1874), 9 L. R. Ch. 561, and iJeYglesias (187q), >, 10 L. R. Ch. 635. Woolsey v. Qrawford (1810), 2 Camp. 445, dissented from lie General South American pcgnpany (1877), 7 L.R. Ch. D. at 644. young V. Grote (1827), 4 Binar. 253, dismissed Arnold V. Chequu Bank X1876),l L.R. C.'P. D. at 586; and Baxendale u Bennett (1878), 3 L. R. Q. B. D. at 533. LIST OF ABBREVIATIONS. Bigelow — Bigelow on Bills. 2d edition. 1880. 'Byles — Byles on Bills of Exchange. 13th edition. 1885.. Chitty— Chitty on Bills of Exchange. 11th edition. 1878. British Code— Bills of Exchange Act. 1883, (45 and 46 Vict. c. 61.) Daniel — Daniel on Negotiable Instruments. New York. 3d edition. 1882. French Code — French Code de Commerce of 1818. German Exchange Law — German General Exchange Law of 1849. Indian Code — Indian Negotiable Instruments Act. 1881. Lindley — Lindley on Partnership. 3d edition. Nouguier — Nouguier's "Lettres de Change et Effets de Com- merce." Paris. 4th edition. 1875. Pothier — Pothier, Trait& du Contrat de Change. Paris. 1847. Story — Story's-Commentary on the LaCw of Bills of Exchange.' 4th edition, 1860. (Iv) A TREATISE ox THE LAW OF BILLS OF EXCHANGE, PROMISSORji^ NOTES AND CHECKS. CHAPTER I. FORM AND INTERPRETATION OF BILLS. [ExpLANATOKT Head Note. — The term "Bill," as used in the articles of this Treatiae, includes, mutatis mutandis, Promissory Note and Check as well as Bill of Exchange. When a provision does not apply equally to Notes and Checks,' the full expression "Bill of Exchange " is used. See Introd. p. x, and head note to Chaps. IX and X.] Art. 1. A Bill of Exchange is an unconditional Bin 0/ order in writing for the payment of a sum of money, •^e&ned. absolutely and at all events. NoTE.^A Bill of Exchange is frequently called a " Draft." No particular form of words is requisite to its validity (Art. 10), and it need not necessarily be negotiable (Art. 8); there- fore negotiability, its chief characteristic, does not enter into the definition. By German Exchange Law, Art. '4, a bill must expressly mention that it is a Bill of Exchange. Sub- joined are two common forms: FoBM 1. — Inland Bill. No. 10. $100. . Chicago, 111., January 1st, 1 870. Three months after date pay to our order the sum of one hundred dollars. Value received. Andeews & Co. To Messrs. Brown & Sons, Chicago, 111. 2 BILLS OF EXCHANGE. Fart. 2. Bill of FoEM 2. — Foreign Bill. Exchange defined. ^^^ jp_ • g^^jjange for £100. Calcutta, 1st January, 1870. Six months after sight of this First of Exchange (Sec- ona and Third unpaid), pay to the order of Mr. John Charles, one hundred pounds. Value received, and charge the same to account of Messrs. Smith & Co., against your letter of credit. No. 1. James Andebws. To Mr. J. Brown, London. Parties. Necessary par- Art. 2. There tuust, in point of form, be three par- ties to a Bill of Exchange in its origin, and two at least of these must be different persons. They are — (1.) Tlie party who gives the order, called the drawer. (2.) The party on vwhom the order is given, called the drawee. If tbe drawee duly signify his assent thereto, he is called the acceptor, and becomes the principal debtor on the bill. (3.) The party in whose favor the order is given, called the payee. Explanation 1. — The drawer and payee may be the same person, i. e., a bill may be drawn payable to the drawer, or his order.' Explanation 2. — A bill may be payable to the or- der of the drawee, if he act in two different capacities.' Illusteation. B. is in business on his own account. He is also agent for X. A bill is drawn on B. as agent for X., payable to his order on his own account. He accepts and indorses it. This is a valid bill. ^BulUr V. Cripps (1704). 1 Salk. 130; Miller v. Weehs (1853), 22 Pa. St. 89; German Exchange Law, Art. 6. "Holdsworth v. Hunter (1830), 10 B. & C. 449; Witte v. Williams (1876), 8 So, Car. 290; S. C. 28 Am. R. 29. ARTS. 2-3.1 FORM AND INTERPBETATION. ^OTE. — It is clear that the instrument is not a bill, which Necessary can not be enforced until it is indorsed away: Cf. M. v. Bart-^'^^^^^' lett (1841), 2 M. & R. 362. Hence, if a person draw A bill on himself payable to his own order, it is a nullity until trans- ferred.' Explanation 3. — If the drawer and drawee be the same person, or if the drawee be a fictitious person, the holder may treat the instrument, at his option, either as an accepted Bill of Exchange or as a note.^ Illustrations. 1. A. & Co. carry on business in London. and Liverpool. The London house draw a bill on the Liverpool house. The holder may treat it as a note made by the London house paya- ble in Liverpool; and if it be not paid, the omission to give notice of dishonor to the London house is immaterial." 3. A. draws a billon B. and negotiates it to C; B. is a fic- titious person. C. may treat the bill as a note made by A. He need not prove presentment or give notice of dishonor.* 3. The directors of a joint stock company draw a bill in the name of the company, addressed " To the Cashier." The holder rijay treat it as a note by the qompany.*^ 4. A. draws on his agent in favor of C. C. may treat the instrument as the note of the principal.' Note. — Cf. Art. 139. Fictitious payee or indorser. As to notes, see Arts. 272, 274 and 286, note. Art. 3. " Holder " means the person in possession Hoiaer. of a bill, who by the Law Merchant is entitled to en- force the payment thereof. It includes equally payee, . indorsee, or bearer. ^Randolph v. Parish (1839), 9 Port. (Ala.) 76; Commonwealfhv. But- Urick (1868), 100 Mass. 12. ^Miller v. Thomson (1841), 3 M. & Gr. 576 ; FaircUld v. R-y Co . (1857), 15 N. Y. 337; Taylor v. Newman (1883), 77 Mo. 257; Cf. German Ex- change Law, Art. 6. 'Id.; Cf. Willans v. Ayers (1877), 3 L. R. Ap. Ca. 1-33, P. C. * Smith V. Bellamy (1817), 2 Stark.' 223. 'Allen V. Sea Assurance Co. (1850), 9 C. B. 574; Chicago R. R. Co. v. West (1871), 37 Ind. at 216; Hasey v. White P. B. S. Co. (1843), 1 Doug. (Mich.) 193. ^Wardens v. Moore (1848), 1 Ind. 289; Hardy y. Pilcher (1879), 57 MisB. 18; McCormick v. Hickey (1887), 24 Mo. App. 362. 4 BILLS OF EXCHANQE. [arts. 4-5, Holdec Note. — Of., Art. 125. Holder and de facto holder distin- guished. signature of Art. 4 A Bill of ExchangB must be signed by drawer. ■ .-^ni v^ a j the drawer.' Cf. Art. 49. Explanation. — The drawer's signature may be added at any time, but until it is there the instrument is inchoate and without effect (Art. 23). Illtjsteatiom-. A. draws a bill on B., payable to drawer's order, but does not sign it. B.. accepts, and it is transferred for value to C. The instrument is neither a bill nor a note.' Note. — If a bill payable to the drawer's order were indorsed by the drawer, though not signed by him on the face, this would probably be sufficient. It is so in France: N'ouguier,.' § 199; Cf. Art. 32. Designation of Art. 5. The drawee must be designated in a Bill drawee. -a of Exchange with reasonable certainty. Illustbations. 1. Instrument in the form of a bill, but addressed "To , Mobile, Ala." This is not a bill.* 2. Instrument in the form of a bill payable to drawer's- order, not containing the name of the drawee, but expressed to be pay- able "at No. 1 X. Street, London." B., who lives there, ac- cepts it. This is a bill, and B. is liable as acceptor." 3. Instrument in the form of a bill. "Where the address to the drawee should be, are the words " at Messrs. B. & Co." This is a bill addressed to B. & Co." 'Tmsv. Young (1858), 1 Meto. (Ky.) 199; Cf. Ex parte Haymri (1871), 6 L. R. Ch. S46; German Exchange Law, Art. 4: Nouqukr, §§ 87, 88. s . . » nA.;,MeCall v. Taylor (1865), 34 L. J. C. P. 865; Cf. GoldsmidyJ' Hampton (1858), 6 C. B. N. S. 94; Hogarth v. Latham (1878), 3 L. R. Q B. U. 643. "Cf. Peto V. RevnoUs fl854), 9 Exch. 410; 11 Exch. 418; Ex. C!h.! AlwyY. Winslow (1879), 126 Mass. 342; French Code, Art. 110; Ger- man Exchange Law, Art. 4. * Watrous v. Holbrook (1873), 39 Tex. 572; Peto v. Reynolds, supra; PeUllon V. Lorden (1877), 86 111. 361; Cf. also, Arts. 37, 58. ' Gray v. Milner (1818), 8 Taunt. 739. * Shuttleworth v. Stephens {\9,0%), 1 Camp. 407. ARTS. 6-7.] FORM AND INTERPRETATION. 6 4. Instrument in the form of a bill addressed "To Str. X. Designation pf and owners," is accepted by the agent of the owner, B. B. is liable as acceptor.' Note. — Speaking of the indication of the drawee, Mr. Justice Story says:' "This seems indispensable to tlie rights, duties and obligations of all the parties, for the payee cannot other- wise know upon whom he is to call to accept and pay the bill; nor can any other person know whether it is addressed to him or not, or whether he would be justified in accepting and pay- ing the billon acco,unt of the drawer." Storp on JBillSj,.^ 58. The question iu Illustr. 2 has arisen also in Scotland and France, and has been decided in the same way: Thompson, p. 46; Nouguier, § 131. A check in this form would probably be in- valid, for the uncertainty could not be cured by acceptance: Cf. Art. 3 as to a Fictitious Drawee. Art. 6. A Bill of Exchange may be addressed to several - . . . , . „ drawees. two or more drawees, jointly, whether partners or not. Note. — In Anon. (1701), 13 Mod. 446, a bill addressed to "B., or in his absence to X.," was accepted by B., and was held good. But, as far as appears, X. may have been an ordinary case of need. An alternative drawee seems to make the payor uncertain: Cf. Ferris v. Bond (1821), 4 B. & Aid. 679, holding a note payable in the alternative by one of two makers, in- valid.' The British Code § 6 (3), now provides that a bill addressed to two drawees in the alternative or to two or more drawees in succession, is not a bill of exchange. Art. 7. A Bill of Exchange may designate one or case of need more persons in addition to the drawee, to be resorted to for acceptance or payment in case of need, i. e., in the event of the bill being dishonored by the drawee.* Note. — Such person is called the drawee or referee in case of need, or simply the case of need. The practice of desig- nating a case of need is not common in America. According to French law the case of need [besom or recommandataire) must reside where the bill is payable (I^ouc/uier, § 344; and cf. German Exchange Law, Art. 56); but this is not the case ' Alabama C. M. Co. v. Brainard (I860), 85 Ala. 476. ^ Cf. farmer v. Steele (1849), 4 Exch. at 13, Ex. Ch. ' Cf. Jackson v. Hudson (1810), 2 Camp, at p. 448: "There cannot be a series of acceptors. " * Cf. Re Leeds Banking Co. (1865), 1 L. R. Eq. 1, and 6 & 7 Will. 4, c. 68; Frenoh^Code, Art. 173; German Exchange Law, Art. 62. BILLS OF EXCHAJ^GE. Lart. 8. Qaseofneed. To whom payable. in England: seethe language of 6 & 7 Will. 4, c. 58. A bill on Liverpool often names a case of need in London: Of. Art. 133. Indorser may name case of need. Art. 184: Pre- sentment to case of need. Art. 8. A bill may be expressed to be payable^! to a person therein designated, or to his order, or to bearer.' ' ' iLLTJSTEATIOIfSi 1. Pay C. — Pay the trustees of the X. Chapel. — Pay to bearer C." 2. Pay 0. or order — Pay to the order of 0. 3. Pay to bearer.' — Pay to ship " Fortune," or bearer.' . Pay or bearer.* Pay to bills payable or order.' Pay to order." Explanation 1. — A bill drawn payable to a partic- ular person simply, without the addition of the words "or order," "or bearer," or their equivalents, is valid inter partes, but not negotiable.' Note. — In Connecticut a non-negotiable bill does not imporij a consideration unless expressed to be "for value received." ?j By French Code, Art. 110, a bill must be payable to order. A bill payable to bearer or to a particular person simply would be invalid. By German Exchange Law, Art 4, the payee must be named. In Scotland, a bill is negotiable unless words prohibiting negotiation are used, e.g., "Pay C. only;" Jitibert- son V. BurdeMn (1843), 1 Ross L. C. 834. British Code, §, 8 (4) has adopted the Scotch rule. German Exchange Law, Art. 9, is to the same effect. Explanation 2. — A bill drawn payable to the order of a particular person is payable to him or his order.' ' Cf. Storm V. Stirling (1854), 2 E. & B. at 842. ' Warren v. Scott (1871), 32 la. 22. » Grant v. Vaughan (1764), 3 Burr. 1.516; Ellis v. WheeUr (1825), 3 Pick. (Mass.) 18. ' * Cf. HaussoulUer v. Bartsinck (1798), 7 T. R. 7S3. • Mechanics'' Bank v. Straiton (1867), 3 Abbott's N. T. Ap. 269. » Davega v. Moore (1826), 8 McCord L. (S. C.) 482. > ^ PUmley v. Westly (1835). 2 Bing. N. C. at 251; Wells v. Brig- ham (1850) 6 Cush. (Mass.) 6; Corlett v. Clark (1878), 45 Wis. 403. « Bristol V. Warner (1848), 19 Conn. 7. » Smith V. McClure (1804), 5 Bast. 476; Cf. Harvey v. Cane (1876), AHT. 9.] FOEM AND INTERPRETATION. I Illustration. Towhom payable. Bill drawn thus, " Pay to the order of C." C. can enforce pay- ment to himself without indorsing it.' ^ Note. — But a bill payable, "to bearer G." is not payable to 0. or bearer. It is not negotiable.'' Art. 9. The payee of a bill, not pavable to bearer, Payee must l^ *j ' jr ./ 'be person must be an existing person capable of being ascer- *" ***'• tained and identified at the time it is issued." Explanation 1. — Extrinsic evidence is admissible to identify the payee when misnamed, or when desig- nated by description only, but not to explain away an uncertainty patent on the bill.* Ili,usteations. The following are valid: 1. Pay to C, D. and E., or the order of any two of them.' 2. Pay 0. or his agent. — Pay the trustees of the X. Society, or their treasurer for the time being. — Pay 0. or his wife.' 3. Pay to C, the treasurer for the time being of the X. Com- pany;' 4. " Pay on demand to the cashier of the X. Bank." Evi- dence is admissible to show that C. was cashier of the X. Bank when the bill was issued.* 5. " Pay to the administrator of X., deceased." Evidence is admissible to show that 0. was administrator of X. when the bill was issued." ° > Smith V. McClure (1804), 5 East, 476; Durgin v. Bartol (1874), 64 Me. 473. " Warren v. Scott (1871), 32 la. 22. ^Cowiev. Sterling (1856), 6 E. & B. 333, Ex. Ch.; Adams v. King (1854), 16 111. 169. * Scares V. Glt/n {l8iS) 8 Q. B. 24, Ex. Ch.; Musselman v. Oakes (1857), 19 111. 81. ' Watson V. Evans (1868), 32 L. J. Ex. 137. ' Bolmes v. James (1866), 1 L. K. Q. B. 876; Bourdin Y.Greenwood, (1871), 13 L. R. Eq. 281; Noxon v. Smith (1879) 127 Mass. 485; Gaytes v. Hibbard (1869), 5 Biss. (C. Ct.) 99. ' B. v. Box (1815), 6 Taunt. 325; Vater v. Lewis (1871), 86 Ind. 288. 8 Commercial Bank v. French (1839), 21 Pick. (Mass.) 486; Soares v. Glyn, supra; Nave v. First' Nat. Bank (1882), 87 Ind. 204. ' Adams v. King (1854), 16 111. 169. 8 BILLS OF EXCHAN&E. Lakt. 9. Payee must 6. " Pay on demand, value received of C," which in effect is, >epersonm „ p^^y to C. on demand." > 7. "Pay to J. Smythe." Evidence is admissible to show that T. Smith is the person intended to be described thereby.' 8. Pay to "bills payable Or Order" — "St. Bt. X. and own- ers " — " I promise to pay you." ' > The following are invalid: 9. " Pay C. or D.," there being no apparent community of interest.* 10. Six months after date, pay to the treasurer for the time being of the C. institution.^ 11. "Pay or order." Evidence is inadmissible to show that 0. was intended to be the payee.* 12. " Pay to the estate of X., deceased."' 13. " Pay on demand," stating no payee.' Explanation 2. — If the payee of a bill be a ficti- tious or non-existing person, no title can be made thereto except by estoppel (Art. 139). Exception. — If a bill be made payable to a de- ceased person in ignorance of his death, his executors or administrators may adopt the transaction. Illusteatioit. A. in England draws a bill on B., payable to C, who is in India. At the time the bill is drawn C. is dead, but the fact is not known to A. C.'s administrator may sue A. on the bill.' " Green v. Davies (1825), 4 B. & C. 235; PotMer de Change, n. 31. ' = Willis V. £«rre« (1816), 2 Stark. 29; Jacobs v. £e«so» (1855), 39 Me. 132; Pattersons. Graues (1841). 5 Blackt. (lud.) 593. " Mechanics' Bank v. Straifon (1867), 3 Abbott's N. T. Ap. Dec. 269; Moore v. Anderson (1856), 8 Ind. 18; Kinney v. Flynn (1852), 2 B. I. ol9- * Blanekenhagen v. Blundell (1819), 2 B. & Aid. 417; Carpenter V. Farnsworth (1871), 106 Mass. 661. ^u.tCi..Westgate v. Healy (1857),,- 4 E. I. 523; Holmes v. Jaques (1866), L. R. 1 Q. B. 376; and Watsm v. Evans (1863), 32 L. J. Ex. 137, where the instruments were upheld. ^Cowie V. Sterling (1856), 6 B. & B. 383, Ex. Ch..;Tates v. Nash, (1860), 29 L. J. C. P. 306; Cf. lllustr. 4, supra. But df. McBroomJ. Corporation (1869), 31 Ind. 268. « B. V. Baiidall (1811), Russ & R. 193. See Art. 23. J Ijyons V Marshall (1861), 11 Barb. (N. Y.) at 248; Hendricks v. Thornton (1871), 46 Ala. at 302. T j^l^^'J- ^'*™" (^'^^l^' 1 H. Bl. at 608; Bich v. Starhuck (1875), 51 Ind. 87; Douglass v. Wilkeson (1831), 6 Wend. 637. Murmv V. East India Co. (1821), 5 B. & Aid. 204. But Cf, Valeif ttne V. Holloman (1869) 63 N C. 475 ART. 10. J FORM AND INTERPRETATION. 9 Note.— By statute in. New York (3 R. S. 7 Ed. 3241, § 5) Payee moat be notes made payable to the order of a fictitious person, if nego- ^"^°" *" ****' tiated by the maker, have the same effect, and are of the same validity as against the maker and all persons having knowledge of the facts, as if payable to bearer. The pro- posed Civil Code of N. Y. (1888), § 3744, provides that "a negotiable instrument made payable to the order of a person obviously fictitious is payable to bearer." Order to Drawee. Art. 10. The order to the drawee may be in any order to form of words, provided it be an unconditional requi- sition for the payinent of money absolutely and at all events.' Illustrations. The following are valid, though unusual: 1. "Credit C. or order with $100 in cash." ^ 3. " Pay, or cause to be paid, to C. or order, f 100." ' The following are invalid, as being conditional: 1 3. Pay C. or order $100, provided the terms mentioned in my letter be complied with.* 4. " " to stand as a set-off for the sum bequeathed to me above the share of X.^ 5. " " to be held as collateral security for the payment of the money owed him by X. if he cannot realize the other securities.' 6. " '• in consideration that he will aban- don the action now pending.' ^Dau'Tces v. DeLorane. (1771), 3 Wils. at 213; Cooh v. Satterlee (1826), 6 Cow. (N. Y.) 108; GimlanY. Myers (1863), 31 111. 525. ^Ellison V. CoUingriclge (1850), 9 C. B. 570. But Cf. Wooley v. Ser- geant (1826), 8 Halst. (N. J.) 262. 'Lovellv. Hill (1838), 6 C. & P. 238. * Kingston v. Long (1781), 4 Dougl. 9; Cf. Baird v. Underwood (1874), 74111. 176; Coolidge v. RuggUs (1819), 15 Mass. 387. 6 Clarke v. Perdval (1831), 2 B. & Ad. 660. 'RolinsY. May, (1839), 11 A. & E. 213; Haskell v. Lamlert {18&0), 16 Gray (Mass.) 592. '' Drury r. Macaulay (1846), 16 M. & W. 146; Hays v. Gwin (1862), 19 Ind. 19. Aliter, i£ consideration be executed. 10 BILLS OF EXCHANGE. [AHt. 10. Order to 7. Pay 0., or Order SlOO not to be demanded in the event of my death.' 8. Note payable to order in usual form, but written in the margin, " Given as collateral security with agreement." ' The following are valid: 9. Pay C. or order $100, " as per memorandum- of agree- ment." ' 10. Pay 0. or order $100, " on return of this receipt." * Note. — Of., Art 13 and Art. 19. As to construction, Of. Art. 56. Comparing bills with notes, the order to the drawee when accepted corresponds with the promise by the maker. It is the same contract" stated conversely. There is, however, ' this distinction: A bill may not be drawn conditionally, and a note may not be made conditionally; but a bill may be accepted conditionally; therefore the liability of the principal debtor on a bill may be conditional, while the liability of the principal debtor on a note must be absolute. A bill absolute in form may be delivered conditionally. Art. 55. And a note has been held valid although at the time of making, an indorse- ment thereon made its payment conditional, on the ground; that the indorsement was no part of the note.^ If payment is conditional, the instrument is not merely non-negotiable; it is not a bill, and is not entitled to grace or presumption 61' consideration.' T- Explanation 1. — The direction must be imperative, not permissive or preeative; but the insertion of mere terms of courtesy will not make it preeative. Illustrations. 1. " Mr. B. will much oblige Mr. A. by paying C. or order." — Valid.' .' Riehardson v. Martyr (1855), 25 L. T. Q. B. 64; Of. Seacard v. Bur- ting (1848), 5 Den. (N. Y.) 444. 'Cosfelov. Crowell (181d), 127 Mass. 293; Of. Fitchhurg Sav. Banh. V. Rice flS78), 124 Mass. Id.' 'Jury V. Baker (1858), E. & B. & B. 459; Of. Taylor v. Curry (1871), 109 Mass. 36. * Frank v. Wessels (1876), 64 N. T. 155; Hunt v. Divine (1865); ,37 111. 187; Cf. Hubbard v. Moseley (1858), 11 Gray (Mass.) 170, not in conflict. ' Tappan v. Ely (1836), 15 Wend. (N. T.) 362. "Conov^er v. SUllwell (1869), 34 N. J. L. 54; DeForest v. Frary (1826), 6 Cow. (N. Y.) 151. 'ifw/v. TVebhillH), 1 Esp. 129, Lord Kenyon. ART. 10.] FOBM AND INTERPRETATION. U 3. " Please let the bearer have $100. I will arrange it with Order to you this noon." — Valid.' 3. " Please let bearer have $100, and you will much oblige me." — Invalid.' 4. " We authorize you to pay C. or order." — Invalid.' Explanation 2. — An. order to pay out of a particu- lar fund does not coQstitute a bill; but an absolute order to pay, coupled with (1) a direction to the drawee to reimburse himself out of a particular fund,' or (2) a statement of the transaction which gave rise to the bill, is valid. Illusteations. The following orders or promises are invalid : 1. Pay 0. or order $100 out of the money in your hands be- longing to the X. Company.' SJ. " " out of the money due from X. as soon as you receive it.° 3. " " out of the money arising, from my reversion when sold.' 4. " " on the sale or produce when sold of ■the X. hotel.' 5. " " out of the moneys now due, or here- after, to become due, to me under the will of my late father and be- fore making any payment to me thereout." ^BiesentJiallv. WilUams {ISH), IDuv. (Ky.) 329. ' Little V. Slackford [182S), 1 M. & M. 171. 'Hamilton v. Spottiswoode (1849), 4 Bxch. 200; and Cf. Russell v. Powell (1845), 14 M. & W. 418. Each case must be detenuined on its merits. Test question is — Does the larjsruage show an intention to assume the liability of the drawer of a bill ? ^ Schmittler v. Simon (1886), 101 N. Y. 554. » Jenny v. Herle (1723), 2 Ld. Raym. 1861; Cf. Turner v. R. R. Co (1880), 95 111. 184. ' ^ 'Dauikes v. DeLorane (1771), 3 Wils. 287; Millsv. Euykendall (1827) 2 Blaokf. (Ind.) 47. ' Carlos v: Fancourt (1794), 5 T. R. 482, Ex. Ch.; Cf. Warden v. Dodge (1847), 4 Den. (N. T.) 159; SriU v. Moile (1881), 53 Wis. 537. » Hill V. Halford (1801), 2 B. & P. 413, Ex. Ch. » Fisher v. Calvert (1879), 27 W. R. 801, M. R. 12 'V, BILLS OF EXCHANGE. [akt. 10. Orderto 6. Pay C Or order $100, and deduct the same from my share of the partnership profits.' 7. " " the demand I have against the estate of X., deceased.^ 8. Bill drawn on a public officer, though in terms abso- lute.' The following are valid: 8.' Pay C. or order $100, as my quarterly half-pay due 1st February by advance.* 9. " " and take the same out of our share of the grain.' 10. " " being a portion of a value as under, deposited in security for the payJ merit hereof.* 11. " " against cotton, per " Swallow." ' VZ. " " on account of moneys advanced by roe for the X; Company. * 13. " " against credit No. 20, and place it to account, as advised per X. & Co.« Note. — rThe sufficiency of the fund referred to is immaterial. An order invalid as a bill may be valid as an equitable assign- , ment." ^Muriger v. Shannon (1874), 61 N. Y. 251, (reviewing cases); Of. mrichs V. DeUill (1878), 75 N. T. 370. ^WestY. Foreman (1852), 2LAla. 400; Morion y. Naylor (1841), 1 HilKN. T.) 583. ' . ; 'Beeside v. Knox (1837), 2 Wharfc. (Pa.) 233; East Township y.^ Ryan (1878), 86 Pa. St. 459; Head v. Bufalo (1877), 67 Barb. 526. v^- * MacUod V. Snee (1728), 2 Stra. 762; Of. Wells v. Brigham (ISSO)^; 6€ush. (Mass.) 6. 6 Co^-lett Y. Clark (1878), 45 Wis. 403; Clf. Redman v. Adams (1863), 51 Me. 429. 8 Haussoullkr v. Hartsinck (1798). 7 T. R. 733; Cf. Towne v. Biee (1877), 122 Mass. 67; HotvryY. Eppinger (1876), 34 Mich. 29; Newton W. Co. Y. Diers (1880), 10 Neb. 284; Mott v. Havana Nat. Bank(lS80), y2 Hun (N. Y.) 354. But see contra to last case, Sloan v. McCarty (1883). 134 Mass. 245. ' Cf. Inman v. Clare (1858), Jphns. 769. » Griffin V. Weatherhy (1868), 3 L. R. Q. B. 753. »Cf. Banner Y. Johnston {\?n\\h'h.S..'E:.l,. 157; KelleyY.BrooUyn (1843), 4 Hill (N.Y.) 263. "> First Nat. Bank v. Dubuque S.W. B. Co. (1879), 52 la. 378; BucTs Y. Rol>son\W8), 3Q, B. D. 686; Percival y. Dunn (1885), 29 Oh. D. 128; Glyn v. Hood (1860), 1 DeG. F. & J. at 348; Grant y. Wood{185S), 12 (Jray (Mass.) 220. AKT. 10.] FORM AND INTEUi'MMTATWN. 13 Explanation 3. — The order must require the pay- drawee? ment of money.' Illitstkations. The following are not bills: 1. An order for the delivery to bearer on demand of a certain quantity of iron.^ 2. A promise to pay 0. or order $100 in cotton;' or in work and labor.* 3. A promise to pay in money or property at the maker's option.' 4. An order for the payment of accrued rent, though 'the rent is payable in money." 5. Pay C. or order $100 " in good East India bonds." ' 6. An instrument promising to pay $100 " in Canada money," if executed and payable in New York. Valid, if payable in Canada.' 7. Pay C. or order $100 "in current bank notes."' The following are valid: 8. An instrument promising to pay £100 10s. 5c?., executed and payable in New York.'" 9. Pay C. or order $100 " in currency," " " in current funds," or " in current funds of the State of Ohio." " ^ Klauher v. Biggerstaff (1879), 47 Wis. 551; Thompson v. Sloan (1840), 23 Wend. (N. Y.) 71; Black v. Ward (1873), 27 Mich. 191. 2 Dixon V. Bovill (1856), 3 Macq. H. L. 1. ' Auerhach v. Prifehett (1877), 58 Ala. 451 ; Of. McCartney v. Smalley (1860), 11 la. 85. ■ . > *Quinhy v. Merritt (1850), 11 Humph. (Tenn.) 439; Cf. McClellanv. Coffin (1883), 93 Ind. 456. . * Taylor v. Tompkins (1881), 1 Tex. A pp. (Civil Cas.) 588. ^Morton v. Naylor (1841), 1 Hill (N. Y.) 583. ' Buller, N. P. 272. « Thompson v. Sloan (1840), 23 Wend. (N. Y.) 71; Cf. Black v. Ward (1873), 27 Mich. 191. ^Litfle V. Phcenix Bank (1842), 2 Hill (N. Y ) 425; Irvine v. Lowry ("840, 14 Pet. (U. S.) 293; McCormi<;kv. Trotter (1823), 10 S. & R. (Pa.) 94: Contra. Swetland v. Creigh (1846), 15 0. llH ; if not notes of a particular bank, Shamokin Bank v. Street (1864), 16 0. St. 1. '" Thompson v. Sloan, supra. " Klauher V.Biggerstaff { 1879), 47 Wis. 551 ; Frank v . Wessels (1876), 64 N Y. 165; Drake v. Markle (1863), 21 Ind. 433 Marine Bank v. Rushmore (1862), 28 111. 4 3; Butler v. Pnine (1863), 8 Minn. 3^4. ^^ American Emigrant Co. v. Clark (1878), 47 Ja. 671; White v. Rich- mond (1847), 16 0. 5; Wright v. Hart (1863), 44 Pa. St. 454. 14 BILLS OF EXCHANGE. [art. 10. Order to NoTE.: — (1) Instruments payable in, merchom.dise. The rule draweei jg uniform in denying to such instruments the attributes of commercial paper, though in Vermont and Massachusetts they import a consideration, but are not negotiable.' Statutes in several States have, however, made such paper negotiable. (3) Instruments payable in bank notes, currency, etc. As to these, the rule in England is much more strict than in America, though relaxed somewhat in Humball v. Met. Bank (1877), 3 L. R. Q. B. D. 194, where it was held that scrip certificates of a banking company, payable to bearer, were negotiable for the purpose of passing with a good title to a bona fide purchaser for value, who took them without notice that the vendor had no title (following Goodwin v. Mobarts (1876), 1 L. R. Ap. • Ca. 476, as to foreign scrip). How far such documents would have the other incidents of negotiable instruments was not de- cided. Of. Art. 278, note under seal. The American de- cisions have not been uniform even in the same State, and no rule can be laid down that will reconcile all the cases. But the tendency seems to be to use the term "money" in a very wide sense, including not merely what is legal tender, but " whatever is lawfully and actually current in buyiilg and sell- ing, of the value, and as the equivalent of coin." ^ In some oases the courts take judicial notice,' and in others evidence is received to show its character as a " circulating medium." * See subject discussed and authorities reviewed in Slack v. Ward (1873), 37 Mich. 191. Explanation 4l. — The order must not require the drawee to do any act in addition to the payment of money." Illttsteations. The following are not bills: 1. Pay 0. or order $100, and deliver up the wharf to him.' 2. " « $100, and take up my note for that amount. ^Dennison v. Ti,son (184fi), 17 Vt. 549; Jones v. FaUs (1808), i IKlauher v. Bigger staff {1^9)), 47 Wis. at 557. "Judah v. Harris (1821), 19 Johns. (N. Y.) 144. '■American Emigrant Co. v. Clarh (1878), 47 la. 671. « Follett V. Moore (1849), 4 Bxch. at 416. "Martin v. Chauntry (1747). 2 Stra. 1271. ARTS. 10-12.] FOEM AND INTEBPMETATION. 15 The folio wins; are valid; Order to 3. A note in usual form, to which is added, " the contents of this . note to be appropriated to the payment of the X. mortgage." ' 4. A note in usual form, to which is added, " waiving right of appeal and of all valuation and exemption laws."* 5. A note in usual form, to which is annexed a power of attorney to confess judgment thereon.' Note. — In lUustrs. 3, 4 and 5, the instrument has all the requisites of a promissory note, with which the added stipula- tions are in no way inconsistent, but, as to the last two exam- ples, "after the note falls due and is unpaid, facilitate the collection by waiving certain rights which he (maker) might ex- ercise to delay or impede it." * Cf. Art. 13. Uf. also, Art. 277, note in alternative. Sum Payable. Art. 11. A bill may be drawn for any sum. pa'^bie Note.— In England, by 48 Geo. 3, c. 88, § 3, negotiable bills or notes for less than 20s. were made void, but this statute was repealed by the Code, and there is now no limit to the sum for which a bill, note or check may be drawn. Art. 12. The sum for which a bill is drawn must statement 5 ofsum. be expressed. Illustrations. 1. Bill in this form, " Pay to my order $ ." Evidence is not admissible to show that this is a bill for $100.° 2. "Pay 0. or order sixteen -." No figures in the margin. Invalid.' ' Treat v. Cooper (1842), 22 Me. 203; Cf. Preston v. Whitney (1871), 23 Mich. 260. ^ Zimmerman T . Anderson (1871), 67 Pa. St. 421; Woolen v. Ulrieh (1878J, 64 lud. 120. « Cushman v. Welsh (1869), 19 0. St. 636; Cf . Kirk v. Ins. Co. (1875), 39 Wis. 138. * Zimmerman v. Anderson {supra); Woolen v. Ulrieh {supra.) » B. V. Elliott (1777), 1 Leach. C. C. 175; French Code, Art. 110; German Exchange Law, Art. 4; Cf. Art. 23; and 'Pointer, No. 35. « Norwich Bank v. Htjde (1839), 13 Conn. 279; Cf. Saunderson v. Pi- per (1839), 5 Bing. N. C. at 431. See Art. 23. ' Broten v. Bebee (1814), 1 D. Chip. (Vt.) 227. 16 BILLS OV EXCHANGE. [abts. 12-13. Statement of sum. Sum to be certain. 3. Bill in this form, " Pay to my order twenty-five, ten shil- lings." This is sufficient as a bill for 2ol. 108.' 4. "Pay C. or order fifty-two 35-100." No figures in the margin. Valid.^ Explanation 1. — If the sum payable be expressed in words and also in figures, and there is a discrep- ancy between the two, the words prevail.' Illustbatioit. A bill is drawn, "Pay 0. or order two hundred dollars." In the margin is superscribed $250. This is a bill for 1200 only.* Explanation 2. — The figures may supply an omis- sion in the words.* Tllustkation. A bill is drawn, " Pay C. or order one hundred." In the margin is inserted $100. This is a bill for $100.' Note. — If the sum payable can be gathered from any part of the instrument, whether from the figures or the form of expres- sion (Illustr. 4, supra.) in the body of the bill, it is valid. The written words govern, as the figures in the margin are no part of the bill, and can be referred to only in case of doubt.' Ger- man Exchange Law, Art. 5, provides that if the amount be ex- . pressed both times in figures, or both times in words, and there is'a discrepancy, the smaller sum .is the amount payable. ■ Art. 13. The sum payable must be a certain and definite sum. Illtjsteations. The following orders or promises are invalid: > Phipps V. Tanner (1833), 5 C. & P. 488; Beardsley v. Hill (1871), 61 111. 354. 2 Murrill v. Handy (1853), 17 Mo. 406. ^ Saunderson v. Fiper (1839), 5 Bing. N. C. 481 ; German Exchange Law, Art. 5. * Id.; Cf . Mears v. Graham (1846), 8 Blaokf. (Ind.) 144. B R. v. ElUolt (1777), 1 Leach, 0. 0. 175. » Id. ; Sweetser v. French (1847), 13 Met. (Mass.) 262; Corgan v. Vrew (1865), 39 111. 31. ' Riley V. Dickens (1857), 19 111. 29; Cf. Burnham v. Allen (1854), 1 Gray (Mass.) 496. ART. 13.] FOSM AND INTERPRETATION. 17 I. Pay 0. or order $100, and all other sums -which may be Sum to be due to him.' 3. " " the proceeds of a shipment of goods, value $3,000, consigned by me to you.' 3. " " the balance due to me for building the Baptist College Chapel.' 4. " « $50 or $60.* 5. " " $100, and the demands of the sick club-* 6. " " $100, and all fines according to rule.^ 7. " ' " $100, with interest the same as savings banks pay.' 8. " " $100, in two years with interest, or with- out interest, if paid within one year.' 9. An instrument in form of a note, but containing a provis- ion that the maker may pay at any time before maturity, " in- terest to be deducted accordingly." ° The following are valid: 10. A promise to pay $10 per acre for the X lot of land, be- comes valid when the number of acres is indorsed thereon.'" II. A promise to pay $100 without interest on or before Jan. 1st, 1883." 13. A promise to pay $100 and reasonable (or ten per cent.) attorney's fees, if not paid at maturity and suit is instituted." ' SmUh V. NightingaU (1818), 2 Stark. 275. ^ Jones V. Simpson (1823), 2 B. & C. 318; Cf. Cushnian v. Havnes (1838), 20 Pick. (Mass.) 132. ' Crowfoot V. Gurney (1832), 9 Bing. 372. * Fralick v. Norton (1851), 2 Mich. 130; Cf. Parsons v. Jackson (1878), 99 U. S. 434. ^Bolton V. Dugdale (1833), 4 B. & Ad. 619. '■Ayrey v. Fearnsides (1838;, 4 M. & W. 168. ' Whitwell V. Winslow (1883), 134 Mass. 343. ^Lamh v. Story (1881), 45 Mich. 488. ''Way V. Smith (1873), 111 Mass. 523; Stults v. Silva (1875), 119 ^0 Smith V. Clopton (1849), 4 Tex. 109. ^Helmerv. Krolieh (1877), 36 Mich. 371; Mattison v. Marhs (1875), 31 Mich. 421. ' " "Sperry v. Sorr (1871), 32 Ia.l84; Bullock v. Taylor (1878), 39 Mich. 137; Stoneman v. Pyle (1871), 35 Ind. 103; Boivenstein \, Barnes (1879), 5 Dillon (C. Ct.) 482; Meaehim v. Pinson (1882), 60 Miss. 217; Trader v. Chidester (1883), 41 Ark. 242. Contra, Woods v. North (1877), 84 Pa. St. 407; First Nat. Bankv. Gay (1876J, 63 Mo. 33; Jones V. Radatz (1880), 27 Minn. 240; First Nat. Bank v. Bynum (1881), 84 N. C. 24; Johnston v. Speer (1879), 92 Pa. St. 227; First Nat. Bank of 2 18 BILLS OF EXCHANGE. [art. 33. Sumtobe 13. A promise to pay $100 " but if not paid at maturity to bear ten per cent, interest." ' NoTB. — The notes in Illustrs. 10 and 11 are valid on the ground stated ante, Art. 10 Exp. 4, note. As long as the note retains the peculiar incidents of commercial paper, that is, up to maturity, the amount payable is fixed and definite, and no extrinsic evidence is necessary to ascertain it. An indorsee can enforce the stipulation for attorney's fees.^ In some States, such notes are void because usurious.' Explanation 1. — The fact that the amount payable is payable by instalments,* or payable with interest, or that it is to be calculated accor.ding to an indicated rate of exchange, does not make it uncertain. Illusteations. The following are valid: 1. Pay C. or order $100 " with lawful interest." ' 2. " " at the exchange, as per indorse-^ ment."» ' Invalid: 3. Pay C. or order $100 " with current exchange on New York." ' Note. — The law seems clearly against the validity of a bill payable with current exchange, for two reasons: (1) The fluc- tuations in the rate of exchange make it impossible to ascer- tain the amount payable when the bill is issued. (2) If this were not so, evidence dehors the instrument would be neces- sary to ascertain the amount due at maturity. In the cases' cited contra, the question is either not raised or not discussed, except in Smith v. Kendall, in which Campbell, J., dis- Stillwater v. Larsen, (1884), 60 Wis. 206; Maryland Fertilizing Co. V. Newman (1888), 60 Md. 584. ^Houghton v. Francis (1862), 29 111. 244; Tmene v. Rice (1877), 122 Mass. 67; Parleer v. Plymell (1880), 23 Kans. 402. "HuUard v. Harrison (1871), 38 Ind. 823. ^Shelton v. Gill (1842), 11 0. 417; Meyer v. Hart (1879), 40 Mich. 517; Boozer v. Anderson (1883), 42 Ark. 167. *Art. 19, Expl. 4. 'Cf. Warrington v. Early (1853), 2 E. & B. 763. 8 Eouquette v. Overman (1875), 10 L. R. Q. B. at 531. ■•Lowe V. Bliss (1860), 24 111. 168; Philadelphia Bank y . NewUrk (1840), 2 Miles (Pa.) 442; Mead v. McNulty (1860), 12 Rich. L. (S. C.) 445. Contra, Smith v. Kendall (1861), 9 Mich. 241 ; Pollard v.Herriei (1803), 3 B. & P. 335; Legett v. Jones (1859), 10 Wis. 34; Bullock v. Taylor (1878), 39 Mich. 187. ART. 13.] FORM AND INTERPRETATION. 19' sents, and Christiancy, J., concurs only on ground that the Sum to be words "with current exchange" were without significance, as"®'^'*™* in Hill V. Todd (1863), 39 III. 101. See a statement of the practice as to the sale of foreign bills and the mode of fixing the exchange, Suse v. I'ompe, 8 0. B. N. S. at 543. To indorse a rate of exchange' without authority is a material alteration, which avoids a bill: Hirschjield v. Smith (1866), 1 L. R. C. P. 340 Explanation 2. — When a bill is drawn in one coun- try and payable in another, and the amount payable is expressed in the currency of the former, it must be calculated according to the rate of exchange on the day the bill is payable. Illtjstratiost. A. in England draws a bill on B. in France for 100?. sterling. The amount in francs which the holder is entitled to receive is determined by the rate of exchange oh the day the bill is pay- able.' JEkplanation 3. — When a bill is drawn in one coun- try payable in another in the currency of tbe latter, and such currency is depreciated between the time of issue and of payment, the holder is (perhaps) entitled to be paid according to the former value.^ Illusteation. A bill is drawn in England oh Portugal for " 100 mille rees." After it is drawn, but before it is payable, a depreciated paper currency is introduced. The holder is entitled to be paid in the former currency or to receive its equivalent.' Note. — This decision seems opposed in principle to Hou- quetle y. Overman (1875), 10 L. R. Q. B. 535, where it was held that tbe time of payment might be deferred by ex post facto legislation, the drawer's liabilities being regulated by the lex loci solutionis, 1 Cf . HirscMeld v. Smith (1866), 1 L. E. C. P. at 353; Belgian Code, Art. 33. 'Da Costa v. Cole (1688), Skin. 272. »ld. 20 BILLS OF EXCHANGE. [art. 13. ^m^be Explanation 4. — When, a bill is expressed to be payable with interset, interest runs from the date of the bill, and the amount payable must be calculated accordingly.' Illtjsteations. 1. Bill payable three years after date, " with interest thereon till paid." Interest runs from date at the legal rate.' 3. Bill payable on demand with interest. Interest runs from the date." 3. C, a married woman, as administratrix, lends $100 to her. husband, who m9,kes a note for the amount, expressed, to be payable to.C. with interest. Interest runs from the date of the note, although C could not sue on it during her husband's life-,' time.* 4. B. makes a nbte, expressed to be payable with interest one year after his death. Interest runs from the date of the note." 5. B. makes a note and adds — " If not paid when due, to bear 25 per cent, interest." Interest runs at the specified rate from date.» Note. — If a bill bearing interest is undated, interest runs from date of issue.' In the absence of usury laws in force in several States but not in England, there is no limit to the Tat,? the parties may a^ree on. If no time is expressed for the pay- ment, of interest, none is due until maturity.' Interest after maturity, whether expressed or allowed by law, is in the nat- ure of damages, as to which see Arts. 313, 220. 1 Dormon V. Z»;6rfw (1826), R. & M. 381; Williams y. Baker' [1813), 2 Id.; KohUr\. Smith (1852), 2 Cal. 597. » Pate V. Gray (1831), 1 Hempst. (C. Ct.) 155. Except bank notes which run from demand, Bingo v. Biscoe (1853), 8 Eng. (Ark.) at 584; Estate o/iBanA: of Pra«a. (1869), 60 Pa. St. 47i. * Richards v. Richards (1831), 2 B. & Ad. 447. /^Ih^^^'. ^- <^«««»?«" (1839), 10 A. &E. 222; Washhand v. WasKband (loS6), 24 Conn. 500. 'Sorn T. Nash (1855), 1 la. 204; Bachenhury v. Shaw (1858), 11 Ind. o9^. ''Richardson v. Ellett (1853), 10 Tex. 190. 'Sanders v. McCarthy (1864). 8 Allen (Mass.) 42. AitT. 14.J FORM AND INTERPRETATION. 21 Expression of Consideration. reoeivei Art. 14. It is usual, but not necessary, to insert in a bill the words " value received," or some equiv- alent expression denoting consideration.' Note. — By the weight of authority, the bill imports a con- sideration, though not "for value received," and not negotia- ble;^ but in some States it is otherwise if the bill is non- negotiable.' See Art. 278, note, effect of a seal. German Exchange Law, Art. 4, does not require the consideration to be stated. By French Code, Art. 110, the nature of the consid- eration must be stated in the bill. A false statement of value constitutes a " supposition de valeur," and avoids the bill in the hands of parties with notice: N'ouguier, §§ 282, 283. See^os^, Consideration, Art. 82. By statutes in New York and a few other States, notes given for the purchase of patent rights are required to state that fact, and the transferee of such a note is subject to^equities. Explanation 1. — In a Bill of Exchange payable to a third party " value received " means, prima facie, value received by the drawer;* but in an accepted bill, payable to drawer's order, it means value re- ceived by the acceptor.* Explanation 2. — When a bill is expressed to be for value received, extrinsic evidence is admissible be- tween immediate parties to prove absence, failure, or illegality of consideration; ° and though a particular consideration is expressed, extrinsic evidence is ad- missible to prove a different consideration.' ^Hatch V. Trayes (1840), 11 A. & E. 702; Mehlherg v. Tisher (1869), 24 Wis. 607. ' Town/tend v. Derly (1841), 3 Met. (Mass.) 8R8; Arnold v. Sprague (1861). 34 Vt. 402; Lobadie v. Chouteau (1866), 37 Mo. 413. ^Briatolv. Warner (1848), 19 Conn. 7; Barnes v. JTord (1863), 51, Me. 91; Cf. Hoyt v. Jaffrny (1862), 29 111. 104. ^ Grant v. DaCosta (1816), 3 M. & S. 351; Benjamin v. Tillman (1840), 2McL. (C. Ct.)213. ' Highmore v. Primrose C1S16), 5 M. & S. 6,'); Thurman v. VanBrunt (185:i), 19 Barb. (N. Y.) 409. « Green V. S/iepAerci (1863), 5 Allen (Mass.), 589, (absence); Aldrich r. Stochwell (1864), 9 Allen, 45, (failure); Baker v. Collins (1864), 9 Allen, 253 (illegality). Arfs. 91-95. ' Miller V. McKenzie (1 84), 95 N. Y. 575; Blum v. Mitchell (1877), 22 BILLS OF EXCHANGE. [art. 15. Value IlLUSTEATIOSTS. received. 1. A note is expressed to be given " for comtnission for business transacted." In an action by payee against maker, evidence is admissible to show that the consideration wholly failed, and that the payee never earned his commission.' 2. A note is expressed to be given " for money loaned." Evidence is admissible to show that the note was given in consideration of future services to be rendered by the payee.^ 3. C, the payee of a bill expressed to be for value received, sues the acceptor. The acceptor may show that the bill was drawn and accepted for C.'s accommodation.' Explanation 3. — A bill must not be expressed to be given for an executory consideration.* Note. — An executory (j. e. future) consideration expressed on the instrument would render it conditional, and so invalid as a bill: Cf. Art. 10. Date of Mahing. maktog. -^^t. 15. ' It is usual but not necessary, to insert in a bill tbe date on which it is drawn.^ Explanation. — A bill, expressed to be payable after date, should be dated; but evidence is admissible to show on what day such bill, if undated, was issued, and it takes effect from that time.* 59 Ala. 535; Ramsey v. Younq {l%%\), 69 Ala. 157; Coelee v. Blaelc- bourn (1880), 57 Miss. 689; Everhart v. Puckett (1881), 73 Ind. 409 Contra. Rideoutv. Brislow (1830), 1 Cr. &J. 231; Hilly. Wilson (1873), 42 L. J. Ch. 817; Nelson v. Serle (1839), 4 M. & W. 796; Knill v. Williams (1809), 10 East. 481; Johnson v. Sutherland (1878), 39 Mich. 579. 1 Alhitt V. Hendricks (1840), 1 Man. & Gr. 791. "Miller v. McKenzie, (1884), 95 N. Y. 575; Pierce v. Hight (1881), 76 Ind. 355; Dickin v. Morgan (1880), 64 Iowa, 684. 8 Cf. Thomson v. Clubhy (1836), 1 M. & W. 212; Stephens v. Bank ■ ' (1878), 88 Pa. St. 167. But he cannot show no consideration for the acceptance, Nowah v. Excelsior Stone Co. (1S76), 78 111. 307. * Drury v. Macauley (1846), 16 M; & W. 146; Hays v. Gwin (1862), 19 Ind. 19. ^ Mehlberg v. Tisher (1869), 24 Wis. 607. « Richardson v. Ellett (1863), 10 Tex. 190; Cf. Giles v. Bourne (1817), 6 M. & S. 73; Seldonridgev. Connable (1869), 32 Ind. 375. AKT. 16.] FORM AND INTERPRETATION. 23 Illusj'eation. ^ateof^ A. draws, without dating, a bill on B., payable to 0. three months after date. C. can give evidence to show on what day the bill was issued to him. Note. — Byles, (shitty and Parsons are of this opinion, rely- ing on Giles v. Bourne^ where, however, the point arose on the pleadings and not on the evidence. No question could arise except in the case of a bill payable after date: Cf. the Scotch law, under 19 & 30 Vict c. 60, § 0. German Ex- change Law, Art. 4, requires a bill to be dated; so does the French Code, Art. 13 0. Pothier (No. 3B), writing before the Code, says " Want of a date or mistake therein cannot be taken advantage of by the drawer of the bill, or by the drawee if he accepts it." Art. 16. A bill may be ante-dated or post-dated.^ -^^I'^-^^'^g Explanation. — Evidence is admissible to show on'''^""®- what day such bill was issued, and it takes effect from that time. Illtjstuations. 1. A. draws a bill on B., bearing date May 1, payable to C.'s order. C. indorses to D., who sues A. It appears that C. died in April. D. may show that the bill was post-dated, and that C. really indorsed it. He can then recover.' 2. C. sues B. on a partnership note dated in 1842, and signed by his partner in the firm name. The partnership was dissolved in 1840. C. may show that the bill was issued before dissolution, and post-dated. He can then recover.* 3. D. sues B. on a check. D. may recover as a holder be- fore maturity, although shown to have taken a year after its date, if it was in fact post-dated one year when issued.^ " Giles V. Bourne (1817), 6 M. & S. 73. ^ Usher v. Dauncey (1814), 4 Camp. 97; Barlcer v. Sterne (18.54) 9, Excb. 684. ante-dated; Gatty v. Fry (1877). 2 L. R. Ex. D. 265; Fra- zier V. Trow's Printing, etc., Co. (1881). 24 Hun (N. Y.), 28 1 , post-dated ' Pasmore v. North (1811), 13 East. 517. * Lansing v. Gaine (1807), 2 Johns. (N. Y.) 300. ^ Cowing v. Altman (1877), 71 N. Y. 435; Cf. Drake v. Rogers (1851), 32 Me. 524. 24 BILLS. OF EXCHANGE. [aet. 17. Ante-dating 4. 0. sues B. on a note bearing date on » Sunday. He may dating. recover if it appears to have been issued on a Monday.' 6. May 5th, C. sues B. on a nbte dated May 1st, payable one day after date without grace. C. cannot recover if it appears to have been issued on May 5th, and ante-dated.* Exception. — Such evidence is not admissible to in- validate the title of a bona fide holder for value. Illustrations. 1. June 4th, D., abonafide holder for value, sues B. on a note dated May 1st, and payable one month after date. B. cannot show that the note was issued June 1st, and dated May 1st by mistake.' i 2. In suit of bona fide holder for value against the maker of a note bearing date on a secular day, evidence is inadmissible to show that it was in fact issued on a Sunday.* Note. — If ante or post-dated, the date fixes the time from which to determine its maturity, except' as ngainst a bona fide holder for value.^ See passim, He Gomersall (1875), 45 L. J. Bank. 1, as to drawing ante-dated bills to defraud creditors. Presumption Art. 17. A bill is prima facie presumed to have been issued on the day which it bears date.° Exception 1. — A bill bearing date on a Sunday is not presumed to have been issued on that day.' Note. — A bill issued on Sunday is not void at common law,' but by statutes in most of the States, resembling the 29 Car. 2, c. 7, a bill issued (Of. Art. 246) on Sunday is void be- ' King v. Fleming (1874), 72 111. 21. '' Raefle v. Moore ("1877), 58 Ga. 94. '^Huston V. Young (1851), 33 Me. 85. ^Kiwx V. Clifford (1875), 38 Wis. 651; Trieier v. Bank (1876), 31 Ark. 128; Ball v. Powers (1879), 62 Ga. 757. ^Bumpass v. Timms (1856),' 3 Sneed (Tenn,), 459; Powell v. Waters (1826), 8 Cow. (N.Y.) 669. „^S°^^Ia? "' ^^*^^^^ ("^^2), 12 C. B. at 778; Emery v. Vinall (1846), 'BegiieY. Levi (1830), 1 Cr. & J. 180; Dohoney v. Dohoney (1870), 7 Bush (Ky.), 217. ^O'Bourke v. O'Bourke 0880), 43 Mich. 58. ART. 18.] FORM AND INTESPBETATrOX. 25 tween immediate parties,' and incapable of ratification,^ but Presumption valid in hands of a bona fide holder for value, if dated on a secu- °^ lar day," either on the ground of estoppel,* or because the stat- ute does not declare the bill void to all intents and purposes.' That the bill bears date on a Sunday, is immater al if in fact issued on a secular day.' The date of the bill, e. g., " March 6, 1881," is itself notice to the holder of its issue on Sunday, as the almanac is part of the law of the land.' Time of Payment. Art. 18. A bill may 'be payable (1) on demand, Empayawe /c\\ • I /r,\ ^ • n • 'on demand. (z) at siglit, or (o) at a determinate future time. Explanation 1. — A bill is payable on demand which is expressed to be so payable, or in which no time for payment is expressed.* Illustrations. 1. Payable "when demanded," or "at any time when called for." ' 2. Payable "in such instalments, and at such times as C* (payee) may require." '? 3. Payable " on demand, with interest after four months." " Note. — A bill accepted or indorsed after it is due, is as against the acceptor or indorser a bill payable on demand." See note on Overdue Bill, Art. 301. 'Sayre v. Wheeler (1870), .SI la. 112; Daij v. McAllister (1860), 15 Gray (Mass.), 433. '^Stevens v. Wood (1879)-, 127 Mass.' 123; Pope v. Unn (1863), 50 Me. 83. Contra, King v. Fleming (1874), 72 III. 21. ^Cranson v. Goss (1871). 107 Mass. 4.39: Clinton Bank v. Graves (1878), 48 la. 228; Trieher v. Bank (1876), 31 Ark. 128. *Ktiox V. Clifford (1875). 38 Wis. 651. s Vinton V. Peck (1866). 14 Mich. 287. ' Hill V. DunJtam. (1856), 7 Gray (Mass.), 543; Frifsch v. Heislen (1867), 40 Mo. 555. But Cf. Davis v. Barger (1877), 57 Ind. 54. ''Finney \. Callendar (1862), 8 Minn. 41; Swj-e v. Wheeler {12,10), 31 la. 112. « Whitloek V. Underwood (1823). 2 B. & C. 157; Aldous v. Cornwall (1868), 8 L. R Q, B. 573; Tucker v. Tucker (1875), 119 Mass. 79; Holmes V. Westiimi). 17 Cal. 623. . ^ Kingsljury v. Butler (1832), 4 Vt. 453; Bowman v. McChesney (1872), 22Grat. (Ta.) 609. '» White V. Umith (1875), 77 III. 351. ^^Lnring v. Gurney (1827), 5 Pick. (Mass.) 15; Cf. First Nat. Bank v. Price (1879), 52 la. 570. ■2 Cf . Art. 34, T me of Acceptance. Patterson v. Todd (1852), 18 Pa, St. 426; Rodger s v. Rosser (187G), 57 Ga. 319. BILLS OF EXCHANGE. [abt. 19. Bill payable on demand. Bill payable in fvJtmo. Explanation 2.— A bill is payable at sight which is expressed to be so payable, or "on presentation" or "on demand at sight." ' Note.— By the British Code, § 10, (1) (a), re-enacting 34 & 35 Vict. c. 74, bills " at sight " or " on presentation,'" are for all purposes to be deemed payable on demand. Art. 19. • A bill payable at a future time may be expressed to be payable — (1.) At a fixed future time. (2.) At a fixed period after date. (3.) At a fixed period after sight. (4.) At a time certain to transpire, though indef- inite.' Explanation 1. — An instrument expressed to be payable on a contingency does not constitute a bill; and the happening of the event does not cure the de- fect.' '^■■ Illustrations. The following are valid : 1. Pay 0. or order $100, ten days after the death of X.* 2. " " two months after H.M. ship "Swal- low " is paid off.^ 3. " " on the 1st January when he comes ofage.^ 4. " " one year after notice.' ^ Dixon Y. Nutall (1834), 1 Cr. M. & R. 807. ^Colehan v. Cooke (1742), Willes, 393; Cota v. ^Mcfc (1844), 7 Met. (Mass.) 588; Cf. Art. 10. 3 Id. at 399; Carlos v. Fancourt (1794), 5 T. R. 482; Kelley v. Hem- mingway (1852), 13 111. 604; Miller v. Excelsior Stone Co, (1878), 1 Bradwell (HI.) 273. * Id. ; Washband v. Washband (1856), 24 Conn. 500. ^Andrews v. Franklin, 1 Stra. 24; Evans v. Underwood (1749), 1 Wils. 262. Government is considered sure to pay. Sed qu. in America, Daniel § 46; Cf. Henry v. Hngen (1843); 5 Ark. 401. 'Gossv. Nelson (1757), 1 Burr. 228. ''Clayton v. Gosling (1826). 5 B. & C. 360. ABT 19.] FOEM AND INTERPRETATION. 27 5. Pay C. or order $100, one year after my death.' BiUpayaW? 6. " " two months after dema:nd in writ- ing-' 7. " " on the expiration of a certain lease.* The following are invalid: 8. Pay C. or order |100, when I marry X.* 9. " " when he arrives at age. That he is of age at time of suit is im- material.* 10.. " " thirty days after the arrival of ship " Swallow " at Calcutta.' 11. " " ninety days after the dissolution of partnership between 0. andX. and the settling of the books.' la. ' " when the estate of X. is settled up.* 13. " " when a certain suit is terminated in my favor; when a certain building is completed; when a certain sale is made; when a certain amount is collected of X.» 14. " " on the completion of the X. rail- road." ' Roffey V. Greenwell (1839), 10 A. & E. 222; Conn v. Thornton (1871), 46 Ala.- 587. 'Price V. Tai^lor (1860), 5 H. & N. 640; Cf. Protection Ins. Co. v. BilTiWeS), 31 Comi. 534. ^Cf. Downer v. Tucker (1858), 31 Vt. 204. * Pearson v. Garret (1694). 4 Mod. 242. - ' Kelley v. Hemmingway (1852), 13 111. 604. <^ Palmer v. Pratt (Mi), 2 Bing. 185; Grant w. TTood! (1858), 12 Gray (Mass.), 220. But Cf. Pinhham v. Macy il?i\h), 9 Met. (Mass.) 174 (no objection raised.) "•Sackett v. Palmer (1857), 25 N T. 179. 'HusUnd V. Epling ("1876), 81 111. 172. 'Shelton v. Bruce (1836), 9 Yerpr. (Tenn.). 24; Miller v. Excelsior Stone Co. (1878), 1 Bradwell (lU.) 273; DeForrest v. Frary (1826), 6 Cow. (N. T.) 151; Corhett v. Georgia (1858), 24 Ga. 287. ^"Blachman v. Lehman (1879). 63 Ala. 547; S. C, 35 Am. E. 57. (Municipal bonds payable to bearer.) 28 BILLS OF EXCHANGE. [iRT. 19. fe"iS.f^° 15. Pay Cor order $100, three months after date, but payee or his assigns may ex- tend time of payment indefi- nitely, as he or they may see fit.' Note.— Under the French Code, Art. 139, and German Ex- change Law, Art. 4, such forms as are given in Illustrations 1 to 7 would probably be invalid. A bill, however, may be made payable at a particular fair or market {enfoire), though the day on which it will be held is not known. Such bills seem to have been anciently known in England as " billas nundinales." ^ Explanation 2. — If a bill is payable at a time cer- tain to transpire, it may be expressed to be payable before that time on the happening of a contingency.' Illustrations. The following are valid : 1. Pay C. or order $100 on or before three years from date.* 3. " " one year from date, or before, if realized 'from the sale of a certain machine.^ 3. " " Dec. 3oth, 1819, or when he com- pletes the building according to contract." 4. '^ " in six months, or as soon as I can make the money out of the said patent right.' ' Smith v. Van Blarcom (ISSl). 45 Mich. 371-: Woodbury v. Moierts (1882), 59 Iowa, 348. " Cf. Colehan v. Cooke (1742), Willes at 899. See French Code, Art. 138; German Exchange Law, Art. 83. ^ Ernst V. Stechman (^1873), 74 Pa. St. 13. Contra. Alexander'^. Thomas (1851), 16 Q. B. 335. *Helmer v. KroUck (1877), 36 Mich. 371: Jordan v. Tate (1869), 19 0. St. 586. ^ Woolen w. Vlrich (1878), 64 Ind. 120; Charlton v. Reed {\^%Z),&\ Iowa, 166; Cisne v. Chidesier (1877), 85 111. 523: Cota v. Buck (1844), 7 Met. (Mass.) 588. ^ " Stevens v. Blunt (1810), 7 Mass. 240. ' Palmer v. Hummer (1872\ 10 Kans. 464. AST. 19.] FOBM AND INTERPRETATION. 29 5, Pay 0. or order $100 on demand or in three years, -with Bin payable interest during said term, or for such further time as said prin- cipal or any part thereof shall remain unpaid.' Note. — In the above cases, it will be noticed, (1) The promise is absolute; it is construed (Art. 58) to be payable at the time specified, whether the money is realized out of the sale, the building completed, etc., or not. If otherwise, the bill would be, conditional, and invalid as such. (3) The bill is not pay- able "with interest." If so it would be invalid as a bill, since the sum payable would be uncertain (Art. 13).'' This is the ground of the Mass. decisions, and JTubhard v. Mosely (18.58), 11 Gray, 170, is not in conflict with the well settled doctrine in America that the time may be indefinite if it is certain to ar- rive. The proviso in the note in that cftse, that if paid before maturity, the pay6e should surrender it to maker, necessarily destroyed its negotiability though payable " to order," which was the point decided. The case of Gota v. Buck, (1844), 7 Met. (Mass.) 588, is still authority. But see Bigelow, p. 20. Explanation 3. — A bill may be expressed to be payable, in effect, in a reasonable time.* Illusteatiojsts. The following are valid, and payable absolutely within a reasonable time. 1. Pay 0. or order, $100, " when convenient." * 2. " " " when I sell my place." " 3. ' " " as soon as collected from my • accounts at P." ° Explanation 4. — A bill may bei expressed to be payable by stated instalments, and may provide tbat upon default in payment of one instalment the whole is to become due.' ^Mahoney v. Fifzpafrich (1882), 133 Mass. 151. 'Way V. Smi^^i '(1873), 111 Mass. 523; StkiUs v. Silva (.1875), 119 Mass. 137. ' Capron v. Capron (1872), 44 Vt. 4;l0. Contra, Nunez v. Daniel (1878), 19 Wall. (U. S.) 560. * Works V. Hershey (1872), 35 la. 340; Lewis v. Tipton (1859), 10 0. St. 88. Contra, Ex parte Tootell (1798), 4 Ves. 372. " Crooher v. Holmes (1875), 65 Me. 195- « Vhsdell v. Cunrmgham (1855), 22 Mo. 124. Sed qu. if a fair con- struction. ' Carlon v. Kenealy (1843), 12 M. & W. 139; Cooh v. Home (1873), 29 L. T. N. S. 369; Cf. Sea v. Glover (1878), 1 BradwelKIlI.) 335. BILLS OF MXCHANOE. [aet. 1 Bill payable 6i fnkwb. pompiitatlon of time of payment. Iliustkatiosts. 1. Pay C. or order $100, " by two equal instalments, due 1st January and 1st July." This is valid.' 3. " " "in such manner and proportibn and atsuch a time and place as he shall require."' 3. " ' , " " by instalments," not stating date or amount. This is invalid.' 4. " " " by ten equal instalments, pay- able, etc., all instalments to cease on the death of X." This is invalid.* Art. 20. In computing time, unless the contrary be expressed,' three Days of Grace are added to the nominal time of payment in the case of all bills" not payable on demand ;' on such bills the nominal time of payment is determined by excluding the day from which time is to run, and including the day of pay- ment.° "Month" means calendar month.' > Gashm v. Darfs '(] 860), 2 F. & P. 294; Cf. Sanders v. McCarthy (1864), 8'AlIen (Mass.), 42. 2 White V. Smith (1875), 77 111. 351; Cf. Colgate v. Buckingham (1863), 39 Barb. (N. Y.) 177. ' Moffat V. Edwards (1841), 1 Car. & M. 16. Sed qu. Wliy not pay- able on demand if no time expressed? * Worley v. Harrison (1835), 3 A. & E. 669. ^'Durnford v. Patterson (1820), 7 Mart. (La.) 460. 8 After date, Reed v. Wilson (1879), 41 N". J. (L.) 29; Wood v. Cofl (1842), 4 Met. (Mass.), 203. After sight, Craig v. Price (1861), 23 Ark. 633. At sight, Weih v. Fairmaner (1838), 3M. & W. 473; CriWsy- Adams (1859), 13 Gray (Mass.), 597; Lucas v. Ladew (1859), 28 Mo. 342. Sed contra, Trash y. Martin (1852), 1 E. D. Sm. (N. Y.), 505; Strong Y. King {\^U),2,hl\\.'d. ' Cf. Andrew v. Blachly (1860), 11 0. St. 89; Salter v. Burt (1838), 20 Wend. (N. Y.), 205 (check). 8 Campbell v. French (1795), 6 T. R. at 212; Ammidown v. Woodman (1850), 31 Me. 580; Cf. German Exchange Law, Art. 82. 8 Wehh v. Fairmaner (1838), 3 M. & W. 473; McMurchey v. Robinson (1841), 10 0. 496; Cf. German Exchange Law, Art. 32: French Code, Art. 132. s . . _ ART. 20.] FUEM AND INTERFltJiTATlON. 31 Illustrations. computation of time of 1. A note dated 31st January is payable one month, after payment, date, " without grace." It is due on February 38. A similair note, dated January 1, would be payable on February 1.' 2. A note for $100 is made payable by two equal instal- ments, on January 1 and February 1. The instalments fall due on January 4 and February 4.^ 3. A bill dated January 1 is payable thirty days after date. It is due on February 3.' 4. " Pay the bearer $100 on April 1st, 1871." The bill is entitled to grace.* 5. A non-negotiable note, not payable on demand, i^ enti- tled to days of grace. ° Note. — The authorities are in conflict as to when suit may be begun against the maker or acceptor. It is held that suit may be commenced (1) Not until tlie day after the last day of grace, since the maker has the whole of that day in which to pay the note, and is not in,default until its expiration.' (3) Oh the last day of grace after due demand and refusal.' (3) On the last day of grace after reasonable hours for payment (Art. 163) have elapsed.* Of. Art. 353, Expl. 3, note; suit against in- dorser. It is believed that all countries, except those where the Greek Church is the prevailing religion, use the New Style, or Gregorian Calendar. The number of days of grace allowed differs in different countries. By French Code, Art. 135, and German Exchange Law, Art. 33, days of grace are abolished and the N. Y. Civil Code (Draft of 1888), § 3839, proposes to do the same. The Bank of England pays its own bills with- out taking grace. Days of grace may be waived, and a valid tender of amount due made on day of legal maturity, as against holder.' • Of. Eoehner v. Knicherlocher Ins. Co. (1875), 63 N. Y. 160. " Oridge v. Sherborne (1843), 11 M. & W. 881; Cf. Coffin v. Loring (1862), 5 Allen (Mass.). 153. 'Seaton v. Hinneman (1879). 50 Ifi. 395. ^Evertson-Y. Bank (1876), 66 N. Y. 14; Morrison v. Bailey (1855), 5 0. St. 13. Contra in Connecticut, Bowen v. Newell (1855), 13 N. Y. 290. ^ Smith V. Kendall (n9i), 6 C. R. 123; Duhuys v. Farmer (1870), 22 La. An. 478. Contra, Backus v. Danforth (1884). 10 Conn. 297. « Osborne v. Moncure (1829), 3 Wend. (N. Y.), 170; Bevan v. Eldridge (1840), 2 Miles (Pa.) 8,53; McFarland v. Pico (1857), 8 Cal. 626. ''Estes V. Tower (1869), 102 Mass. 65; Ammidotvn v. Woodman (1850), 31 Me. 580; Daly v. Proetz (1872), 20 Minn. 411. ^McKenzieY. Durant (185b), 9 Rich. L. (S. C), 61; Cf. Veazie Bank V. Winn (1855), 40 Me. 62. 'Wyc^ffv. Anthony (l882), 90 N. Y. 442. 32 BILLS OF EXCHANGE. [aht. 20. Computation "Sight" in a Bill of Exchange means acceptance of time of " . . , • -, ■, payment. or protest lor non-acceptance, ^. e. sight evidenced on the bill/ , Illustrations. 1. The holder of a foreign bill, payable sixty days after sight makes an agreement that if it be dishonored by non-aooept- ance, he will re-present it for payment at maturity. Accept- ance is refused. The time of payment must be calculated from the day the bill was protested, and not from the day of presentment to -the drawee for acceptance.^ 2. A bill is payable at sight. It is presented and accepted Jan. 1st. It is due Jan. 4:th. 3. .A bill is payable three months after sight. The accept- ance bears date Jan. 1. The bill is due on April 4.' 4. Bill payable after sight is noted for non-acceptance on January 1. It is accepted supra protest on January 5. The time of payment (probably) must be calculated from January 1.* Note. — As a promissory note cannot be accepted, "after sight," in a note, means after mere exhibition to the maker." A bill presented for acceptance is usually left for twenty-four hours (Art. 154), with the drawee, but the custom is for the ■ acceptance to bear date the day of presentment, and not the day of return to the holder^e. g., a bill presented on a Satur- day is accepted and returned on the Monday; the acceptance should bear date of the Saturday. The holder is probably en-- titled to this as a matter of right. "Usance" means customary time, i. e., the time for payment as fixed by custom, having regard to the place where a bill is drawn and the place where it is payable. 1 Campbell v. French (1795), 6 T. R. 200, Ex. Ch. ; Mitchell v. De Grand (1817), 1 Mason (U. Ct.) 176; Cf. French Code, Art. 131; German Exchange Law, Art. 32. 2Id. ^Mitchell V. DeOrand (1817), 1 Mason (C. Ct.) 176. *Such is the practice in England. See contra, dicta in Williams v. Germaine (1827), 7 B. & C. at 471. 5 Sturdy T. Henderson (1821), 4 B. & Aid. 592; Cf. Dixon v. Nutall (1884), 1 C. M. & B, 307; Crihbs v. Adams (1859), 13 Gray (Mass.), at 600. AKT. 20.] FOBM AND INTERPRETATION. 33 Illustration-. computation of time of payment The usance between London and Amsterdam is one month; therefore a bill drawn in Amsterdam, dated January 1, payable in London at double usance, falls due on March 4.' NoTB. — When the usance is a, month, half usance means fif- teen days; Of. Pothier, No. 15. The existence of a usance will not be judicially noticed: it must be proved. The prac- tice of drawing bills at usance is nearly obsolete in Europe, and has never prevailed in America. Drawing after date is more convenient, and answers the purpose. If a bill falls due on a Sunday or legal holiday, if entitled to grace, it is deemed to be due on the preced- ing day ;' if not entitled to grace, it is deemed to be due on the succeeding day.^ IlLUSTEA-TION. A bill is payable three months after date. The last day of grace is Dec. 35lh. The bill is due Dec. 34th, and if that'is Sunday, it is due on the 23d. But if the second day of grace is Dec. 25th, it is still due on the 26th. Note. — Inasmuch as days of grace were originally allowed as a favor, and therefore contracted rather than extended, by the occurrence of a holiday, it seems that if no grace is allowed, the rule of common law contracts as above stated should apply. But evidence of a usage to the contrary would be admissible.* By French Code, Art. 134, a bill which falls due on a dies non {feri^ Ugat) is payable the day before. The computation of time is determined by the law of the place of payment if shown." 1 Cf. Mutford V. Waleot (1700), 1 Ld. Ravm. 574. » Reed v. Wilson (1879), 41 N. J. L. 39; City Bank v. Cutter (1826)78 Pick. (Mass.) 414 (holiday by usuge). 8 Avery v. Stewart (1816), 2 Conn. 69; Salterv. Burt (1838), 20 Wend. (N. T.), 205; Barrefir. Allen (1841), 100. 426; Kunfzv. Tempel [1811], 48 Mo. 71. Contra (due day before). Barker v. Parker (1827), 6 Pick. (Mass.) 80; Doremun v. Burton (1860). 5 Biss. (C. Ct.) 67. *■ Kilgore v. Bulkley (1841), 14 Conn, at 392. - « Skelton v. Dustin (1879), 92 111. 49. 3 §4 BILLS OF EXCSANGE. [arts, 21-22. Gomputa,tion of time of payment. Place of malting. Place of payment Illusteatiosts. 1. A bill is drawn in England payable in Paris three months after date, After it is drawn, but before it is due, a moratory : law is passed in France postponing the maturity of all current bills for one month. The maturity of this bill is for all pur- poses, to be determined by French law.' 3. By French law, days of grace are not allowed. A bill drawn in France, payable in England, is entitled to three days grace; but a bill drawn in England, payable in France, is not entitled to grace.'' Place of MaJcing and Payment. Art. 21. It is usual, but not necessary, to state in a bill the place wbere it is drawn. NoTB. — By 9 Geo. 4, o. 65, a penalty is imposed on the issue or negotiation in England of bills or notes of less than 5/., pay- able to bearer on demand, which are made or purport to be n>ade in Scotland or Ireland; and see Art. 379. In France, the place where a bill is drawn must be stated, for a bill cannot be drawn and paj^able in the same place. There must be a possible rate of exchange between the place where it is drawn and the place where it is payable; French Oode, Art. 110; Nouguier, § 93-105. In Germany the law is the same as in England. Art. 22. The drawer of a Bill of Exchange may or may not indicate a place of payment therein ; lie may also indicate an alternative place of payment.' Note. — By French Code, Art. 110, and German Exchange; Law, Art. 4, the place of payment must be stated. As to the. effect of the drawer stating or not stating a place of payment, see Art. 166, Presentment for Payment. ExplaTMtion. — The drawer of a bill may make it ' Eouquette v. Overman (1875)^ 10 L. R. Q. B. 525. = Id. at 535-538; Of. Bowenv. Newell (1855), 13 N. Y. 290; Thorpe. Craig (I860), 10 la. 461. * Maiden Bank v. Baldwin (1859), 13 Gray (Mass.), 154: Cf. Pollard v. Herries (1803), 3 B. & P. 335. AKT. 23.J FORM AND INTERPRETATION. 85 payable at the house or place of business of some per- ^^^^°l^_ son other than the drawee.' iLLtrSTEATION. A. may draw a bill on B., in Liverpool, payable at Messrs. X. &Co.'s, bankers, London. Note. — The person at whose house or place of business a bill is drawn or accepted payable, is sometimes called the "domi- ciliary," from the French term " domiciliaire," and the bill is said to be " domiciled " where payable. Inchoate Bills. Art. 23. Delivery'' of an incomplete' bill signed ^i^anksig- or -indorsed for use as such,* confers a 'prima facie authority" upon any successive holder ° to fill the blanks necessary to its completion;' and if the bill be negotiated to a holder for value without notice, the presumption of authority becomes absolute.^ Illxjsteatioits. 1. h. draws a bill on B. payable to or order. Any bonafide holder may write his own name in the blank, and sue on the bill.' , / 2. B., who is indebted to X., gives him an acceptance for $100 .on a blank paper. X. dies. His administrator fills up 1 Cf. French Code, Art. 111. 2 Ledwich v. McKim (1873), 53 N.T. 307; Baxendale v. Benn^t (1878), 3 L. R. Q. B. D. 525, C. A. (stolen bill). ' Otherwise it would be alteration, Art. 246. • Nance v. Lory (1843), 5 Ala. 370; Moody v. Threlkeld (1853), 13 Ga. 55; Putnam v. Sullivan (1808), 4 Mass. at 54. ' Hatch V. Searles (1854), 2 Sm. & G. at 152, 153; Davidson v. Lanier (1866), 4 Wall. (U. S.)447. » Page v. JkfoweZZ (1866), 3 Abb. N. T. Ap. D. 433. ''Angle v. /»«. Co. (1875), 92 U. S. 330; Toomer v. Rutland (1876), 57 Ala. 379; Ives v. Bank (1861), 2 Allen (Mass.) 236. ' Hatch V. Searles, supra; Whitmore v. Nickerson (1878), 125 Mass. 496; VanDuzerv. Howe (1860). 21 N. T. 531. « CrutcMey v. Mann (1814), 5 Taunt. 529; Sittig v. Birkestack (1873), 38 Md. 158; Van Etta v. Evenson (1871), 28 Wis. 33; Armstrong v. Harshman (1878), 61 Ind. 52; Ives v. Bank (1861), 2 Allen (Mass.) 236. 36 BILLS OF EXCHANGE. [abt. 23 Blank sig- tiig paper as a bill payable to drawer's order, inserting ^is own name as drawer. He can sue B. on the bill.' 3. B., who is in(iebted to C, gives him a blank acceptance for lOOZ. and then dies. C. may fill in his own name as drawei and payee after B.'s death, and recover the amount from B.'s estate.^ 4. B. signs and delivers to C. a note with blank amount to be filled up for 8100. C. fills it up for 1500, and negotiates it to D., who takes it for value without notice. D. can recover of B. the face of the note.' 5. B. signs and delivers to C, on March 1st, a note with date blank, payable one month after date. C. dates it Febru- ary 15th. It is due March 18th, in the hands of a holder for value without notice.* 6. D. indorses an instrument reading: " afterdate promise to pay to the order of at dollars, for value received," and delivers it to B. to be filled up, but expressly stipulates that it shall not be made payable at a bank. D. is liable to holder for value without notice, though filled up payable at a bank.' 7. The foregoing instrument is indorsed and delivered to C. with general authority to fill up the blanks. He adds at the end of the note " waiving all valuation laws " or " bearing ten per cent, interest after maturity." A holder for value without notice cannot recover of the indorser. The clause is not a completion but an alteration.' 8. D. indorsed and delivered to A. a bill drawn by A. on B., blank as to amount, time of payment, and payee. A. struck out drawee's name, and place of drawing, and filled it up as a ' Scard v. Jackson (1876), 34 L. T. N. S. 65. 2 Carter v. White (1882), 20 Ch. D. 225, affirmed (1883), 25 Ch. D. 666 \jt A.. 3 Bank v. Curri/ (1834), 2 Dana (Ky.), 142: Van Duzerv. Howe (1860), 21 N. Y. 531. In England, stamp limits amount, SchuUzY. Astley (1836), 2 Bing. N. C. 544. ■ * Page v. Morrell (1866), 3 Abb. N. T. Ap. D. 433; Snyder v. Van Borers (1879), 46 Wis. 602. ' Spitlerv. James (1869), 32 Ind. 202, and Redlich v. Doll (1873), 54 N. Y. 234. Contra, Awde v. Dixon (1851), 6 Bxch. 869. " Holland v. Hatch, (1858), 11 Ind. 497; Cf. Holland v. Hatch (1864), n hs8 \ ^^'"''^ ^'' •'^^'''^"^^ (1863), 33 Mo. 398; Weyerhauser v. ART. 23:] FORM AND INTERPRETATION. 37 promissory note. Holder for value without notice cannot re- Blank sig- oover of the indorser.' \ Explanation 1. — As between immediate parties (Art, 88) the bill must be filled up within a reason- able time.'' Eeasonable time is a question of fact,' Explanation2. — As between immediate parties the bill must be filled up and negotiated in accordance with the authority given.* Illusteations. 1. B. signs a note leaving date blank, and blank space after the -word " at," where place of payment is usually inserted, and sends it to 0. with a letter, saying, " I have left date blank which you will fill out giving as long time as possible." 0, cannot recover if he inserts a place of payment in the blank space for that purpose." * 2. B. gives X. a blank acceptance for $500, in order that he may get it discounted for him. X. has the bill filled up as payable to drawer's order, and gets A. to sign as drawer and indorser in a fictitious name. X. then negotiates the bill, and it gets into the hands of E., who takes it bona fide for value and without notice. None of the money reaches B.'s hands. E. can sue B.' Note. — Is the act of the holder in fraudulently filling the blanks, a forgery, or a breach of trust? If forgery, then an in- nocent holder cannot recover thereon, as it is a nullity; aliter if a mere breach of trust. In America the rule of Lord Mans- field in Hussellv. Langstaffe (1780), 3 Dougl. 514, that "the indorsement on a blank note is a letter of credit for an indefi- nite sum," has been applied to its full extent, and it is further held to be immaterial that the plaintiff took the note knowing ■ Bank v. Douglas (1862), 31 Conn. 170; Cf. Luellen v; Hare (1869), 32 Ind. 211. '^ Mulhall V. Neville (1852), 8 Exch. 391; Montague v. Perkins (1853), ,22 L. J. C. P. 187. » Temple v. Pullen (1853), 8 Exch. 389. * Hatch V. Searles (1854), 2 Sm. & G. 147, at 152; Hanhury v. Lovett (1868), 18 L. T. N. S. '366; Davidson v. Lanier (1866), 4 Wall. (U. S.) 447. ^ Toomer v. Rutland (1876), 57 Ala. 379. ^Schulte V. Astley (1836), 2 Bing. N. C. 544. Cf. Farmers Bank v. GaWen (1863), 34 Mo. 119. 88 BILLS OF EXCHANGE. [aet. 24. Blank sig- natures. it to have been given to the holder in blank. He is not thereby put upon inquiry as to the extent of the holder's authority.? But the later English cases have limited the doctrine, and what would be held in America only a breach of trust, has been re- garded as forgery.^ Explanation 3. — The bill takes eiffect and the lia- bilities of the parties accrue from the time it is com- pletely filled up and issued, and not from the time the signature was given/ Illusteations. 1. B., a bankrupt, gives a blank acceptance. It is filled up and negotiated after the close of the bankruptcy. The holder can sue, for it, did not constitute a provable debt.* Note. — An instrument which is wanting in some one or more of the requisites of a complete bill, is in effect a transferable authority to create a bill, and while incomplete is subject to the ordinary rules of law relating to authorities — e. g., an author- ity emanating from a firm is not revoked by the death of a partner." If the signer die while bill is incomplete, the au- thority, unless coupled with an interest, is revoked." Inlancl bill defined. Inland and Foreign Bills. Art. 24. Bills are either inland or foreign. An inland bill is a bill drawn and payable within the same country; all others are foreign bills.' 1 Chemung Bank v. Bradner (1871), 44 N. T. 680. Contra, Batch v. SearUs (1854) 2 Sm. & G. 147, at 153. 2 Awde v. Dixon (1851), 6 Exoh. 869; Bex v. Hart (1837), 1 Moo. C. C. 486. Cf. S.pitler v. James (1869), 32 Ind. 202. » Temple v. Pullen (1853), 8 Exoh. 389; Montague v. Perkins (1853), 22 L. J. 0. P. 187; Ex parte Hayward (1871), 6 L. R. Ch. 646. But maturity calculated from date, Townsend v. France (1861), 2 Houst. (Tenn.), 441. * GoUsmid v. Hampton (1858), 5 C. B. N. S. 94. ' Usher v. Dauncey (1814), 4 Ckmp. 97. 'Michigan Ins. Co. v. Leavenworth (1856), 30 Vt. 11. ' Freeman^s Bank v. Perkins (1841), 18 Me. 292; Bank v. Daniel (1838), 12 Pet. (IT. S.) 32; Amner v. Clark (1835) 2 C. M. & E. 468; Strawbridgev. BoMnson {18id), 5 Gilm. (III.), 470. In England, defined l)y statute, British Code, § 4. ART. 25. 1 FORM AND INTESPMETATION. 39 Illustration. inland wu defined. A., B. and C. are residents of Augusta, Maine. A. draws a bill on B. payable to C. at the X. bank in Boston, Mass. This is a foreign bill.' Note. — Grimshaw v. Bender ' is the only case where it has been distinctly decided that the question depends on the residence of drawer and drawee, and the later cases in Massa- chusetts have followed it only in so far as to express the rule in the loose language of many cases where the residence of drawer and drawee were the same, so that no question could arise on this point. Explanation 1. — TheStates of the Union are foreign to each other within the meaning of this article.'^ Explanation 2. — Unless the contrary appear by its terms, the prima facie presumption is that a bill is an inland bill.* Bill of Exchange Drawn in a Set. Art. 25. A Bill of Exchange may be drawn in a whoie set . . -, . one 1)111. set, each part of the set being numbered, and contain- ing a reference to the other parts. All the parts con- stitute but one bill.* Illustrations. 1. If one part of a set omit reference to the rest it becomes a separate bill in the hands of a honafide holder.* 2. An agreement to deliver up an unaccepted bill drawn in a set is an agreement to deliver up all the parts in existence." ^ Freeman^ s Bank v. Perkins fl841), 18 Me. 292; Contra, Grimshaw V. Bender (1809), 6 Mas?g. 162; Bigelow, p. 23. ^Buckner v. Finley (1829), 2 Pet. (U. S.), 586; Ocean Bank y. Williams (1869), 102 Mass. 41; Mason v. Dousay (1884), 35 III. 424; Joseph. V. Salomon (1883), 19 Pla. 623. *Cf. Armani v. Castrique (1844), 13 M. & W. 443; Lennig v. Ralston (1854), 23 Pa. St. at 139. *C£. French Code, Art. 110; Socinte GeneraU v. Bank (1873), 27 L. T. N. S. 849; Downes v. Church (1839), 13 Pet. (U. S.) 205 at 207. 'German Exchange Law, Art. 66: Cf. French Code, Art. 147. 'Kearney v. West Granada Co. (J856). 26 L. J. Ex. 15. Ratio decidendi not clear. How could drawee of unaccepted bill be liable to the holder? He migrht be to the drawer ultimately. 40 BILLS OF EXCHANGE. [art. 27. \yhoIe set one bill. Indorsement of set. Explanation.- — A person who negotiates a Bill of Exchange drawn in a set, is bound to deliver up all the parts in his possession, but by negotiating one part he does not .warrant that he has the rest.' Note. — In England the obligation to give a set is probably a matter of bargain. By German Exchange Law, Art. 66, the payee is en,titled to demand a set from the drawer; and if a bill, issued singly, be destroyed or lost, the indorsee can ob- tain a second of exchange by addressing himself to his immediate indorser, who applies to the indorser before, and so on up to the drawer. French Law seems to be the same: Nouguiesr, § 205 and 319. The parts of a set (duplicata) must be distin-* guished from copies (copie): I^ouguier, § 309; and German Exchange Law, Art. 70-73.' Art. 27. A holder who negotiates a set by indorse- ment, may (and perhaps should) indorse all the parts that he holds.' Explanation. — If an indorser indorses two parts to different persons, he is (probably) liable on both, and every indorser subsequent to him is liable on the part he has himself indorsed.^ Note. — The practice is for the indorser to indorse all the parts he holds. His position is analogous to that of the drawer. It is said an indorser is not bound to pay unless all the parta. bearipg his indorsement are given up to him or accounted for.* But in America it is held that in the case of an accepted bill, it is prima facie sufficient if the accepted part be given up,° and in the case of an unaccepted bill, if the protested part be given up; there being no presumption that the missing parts have been improperly negotiated." ^Pinard v. Klockman (186.3), 32 L. J. Q. B. 82. ■ = Of. Societe Generale v. Bank (1873), ii7 L. T. N. S. 849; Nouguier, § -^lo. ? Id. and Eoldsworth v. Hunter (1830), 10 B. & C. 449: German Ex- change Law, Art. 67; Of. Indian Code. Art. 132. Societe Generale v. BanTc, supra at 854. J'JfnimyOffutt (1862), 4 Mete. (Ky.) 19; Commercial Bank v. Rouih (1852), 7 La. An. 128. «Z)o««es J- Church (183% 13 Pet. (U. S.), 205. But see WMs v. Whitehead (1836), 16 Wend. (N. Y.) 527; 3 Kent Com. 109. AMS. 28-29.] FORM AND INTERPRETATION. 41 Art. 28. The acceptance may be written on any^«™ptence part of a set, and it should be written on one only.' Note. — Any part of the set may be presented for acceptance.^ Art. 29, Payment in due course of one part of a Payment set discharges the whole bill.' Exception 1. — If tlie drawee accepts two parts, and such parts get into the hands of different bona fide holders, he is (probably) liable to pay both.* Exception 2. — If the acceptor pay without requiring the part bearing his acceptance to be delivered up to him, and such part be, at maturity, outstanding in the hands of a bon^ fide holder, he is (probably) not dis- charged." Illustbation. B. accepts a third of exchange. At maturity the first and second are presented to him and he pays. It turns out that the third of exchange, with his acceptance on it, was at the time in the hands of a bono, fide holder. B. is still liable to pay the third of exchange. Exception 3. — The indorser who has indorsed two parts to different persons, and indorsers subsequent to him of the part not paid, are (probably) not dis- charged (Art. 27). • Note. — The exceptions as stated accord with mercantile opinion. Most foreisrn codes contain Exception %. Art. 30, however, raises a difficulty. ' Bank v. Neal (1859), 22 How. (U. S.) 96; Cf. H'oldsworth v. Hunter (1830), 10 B. & C. 449. 2 Id.; Walsh v. Blatchley (1853); 6 Wis. 422. ' Dowries v. Church (1889), 13 Pet. (IT. S.) at 207; Durhin v. Cranston (1811), 7 Johns. (N. Y.) 442; French Code, Art. 147; German Exchange Law, Art. 67. * Bank v. Neal (1859), 22 How. (U. 8.) 96; Cf. HoUsworth v. Hunter (18.30), 10 B. & C. 449; Ralli v. Dennistoun (1851), 6 Exch. at 496; Ger- man Exchange Law, Art. 67. ° Cf. French Code, Art. 148; German Exchange Law, Art. 67; and see Kearney v. West Granada Co. (1856), 1 H. & N. 412. 42 BILLS OF EXCHANGE. [akts. 30-32. Right of holder of one part. Art. 30. If the parts of a set be negotiated to dif- ferent persons, the'holder wtose title first accrues is (perhaps) entitled to the whole set.' Illustration. C., the holder of a bill drawn in a set, negotiates the third of exchange to D. Two days afterwards he negotiates the first and second to B. D. can compel E. to deliver up to him the first and second.^ Note. — This Art. is not necessarily inconsistent with Arts. 27 and 29i, where the liability of the acceptor or indorser de- pends on estoppel and is independent of title to the bill. In the case given, E. would not be withoiit remedy. He could get back from C. the money he had given for the bill as raoijey paid for a consideration which had failed, or he could bring an action against C. for false representation. Aooeptauoe defined. BequlsiteB in form. Acceptance of Bill of Exchange. Art. 31. "Acceptance " is the assent in due form by the drawee of a Bill of Exchange to the order of the drawer. Art. 32. The acceptance' of a Bill of Exchange, may be: (1.) In writing on the bill,* or on a separate paper.' Illustbations. 1. A. draws a bill on B. B. writes thereon the word "Ao- ' Perreira v. Jopp (1793), cited 10 B. & C. at 450, see at 454; Cf. Walsh T. Blatchley (1853), 6 Wis. 422. ^Id. ^ Completed by delivery, or notification to the holder. Smith v. Mc- Clure (1804), 5 East, 476; Dunavan v. Flynn (1875), 118 Mass. 637; Cf. Art. 53. * Must be in England (British Code, § 17 (2), and by statute in many of the States. » Jones V. Bank (1864), 84 111. 318; Wynne v. Raikes (1804), 2 J. P. Smith, 98. ART. 32.] FOSM AND INTERPRETATION. 43 cepted," "Presented," "Seen," "Honored," or merely his Requisites name. Ihis \s prima facie an acceptance.' 2. B. writes on the back thereof, " I will see the within paid eventually." This is an acceptance.'' 3. B. writes thereon an order to X. to pay the within. This is an acceptance.' 4. B. writes thereon, " I take notice of the above," and signs his name. This is not necessarily an acceptance.* 5. A. draws a bill on B. After it is received by C, the payee, B. writes to A., promising to pay the bill. This is an acceptance, and enures to the benefit of C, and all subsequent holders.' Note. — The drawee may use any form of words from which the intention to accept can be gathered,* and if the words nec- essarily import an acceptance, he will be bound thereby, whether he intended to accept or not. But if the language is ariibiguous, parol evidence to explain it is admissible between immediate parties, perhaps against a remote party.' (2) Oral,^ or implied from acts of the drawee.' Illustrations. 1. A. draws a bill on B. When presented by the holder for ' acceptance, B. refuses to write anything on the bill, but says, "The bill is correct and shall be paid." This is an accept- ance."' ' Spear v. Pratt (1842) 2 Hin,-(lSr. T.), 582; Kaufm.an v. Barringer (1868), 20 La. An. 419. So, indorsing "payment guaranteed," Block w. Wilkerson (1883). 42 Ark. 253. ^Brannin v. Henderson (1851), 12 B. Men. (Ky.) 61. ^Harper v. TT^s^ (1804), 1-Cranch. (C. Ct.) 192. * Cook v. Baldwin (1876), 120 Mass. 317. 01:. Smith v. Milton (1882), 133 Mass. 369. *Cf. Edson V. Fuller (18.50), 2 Fost. (N. H.)183 at 188; Jonesv. Bank (1864), 34 111. 313; Spaulding v. An drew .9 ■ (1864.), 48 Pa. St. at 413; Wynne v. Raikes (1804), z East, 514; Fairlee v. Herring (1826), 3 Bing. 625, Burrough. J., & Best, C. J. Cf. infra, Expl. 3. «Cf. Smith v. Virtue (1860), 30 L. J. i:. P. at 60, Byles, J. ''Gallagher v. Black (1857), 44 Me. 99; Bigelow, p. 49. 'Scudderv. BankaSlb), 91 U. S. 406; Pierce v. Kittredge (1874), 115 Mass. 374; Sturges-v. Bank (1874), 75 111. 595; Miller v. Neihaus ' (1875), 51 Ind. 401; Duel v. Bricker (1874). 76 Pa. St. 255, Jarvis v. Wilson (1878), 46 Conn. 90. Contra, unless drawee then has funds of drawer in hand, Walton v. Mandeville. .'6 la. 597. 'Cf. Cook V. Baldwin, supra; McCutchen v. Rice (1879), 56 Miss. 455. 1" Ward V. Allen (1840), 2 Met. (Mass.) 53, and Spaulding v. Andrews, (1864), 48 Pa. St. 411. 44 BILLS OF EXCHANGE. [art. 32. Eequisitea g. If drawee in possession of the bill procures another. to m form. _ ^ . • t j i discount it, an acceptance is implied.' 3. Detention of the bill by drawee, may, under some circum- stances, amount to an acceptance.^ , 3. Part payment of the bill by drawee, will not, of itself, amount to an acceptance.' NoTK. — In case of a writterj acceptance on the bill, it is im- material by whom presented, but in case of an oral acceptance or a written acceptance dehors the bill, it must be addressed to a party to the bill; if to a mere stranger, it is not an ac- ceptance.* (3.) A written or verbal' promise to accept, either before,' or after the existence of the bill.' Explanation 1, — Such promise must be made with- in a reasonable time before or after the issue of the bill.' iLLtrSTKATipN. A. and B. having an open account, an adjustment takes place between B. and an agent of A., and the balance found due is paid over to the agent. A. expresses dissatisfaction,; whereupon B- writes him, "Re-periise the accounts, make out a statement to suit yourself, and draw on me for the balance, which shall be duly honored." B. is not thereby liable as ac- ceptor on a bill drawn two years afterwards.' ' Bnnlc V. Marsden (1861), 34 Vt. 89. Aliter, if discounted by-drawee, Swope V. Ross (18t)l), 40 Pa. St. 186. ^Hovgh V. £on>^ (1837), 24 Pick. (M:ass.)254; ffaH v. 5^2(1873), 68 III. 231; Of. Orerman v. Bank (1864), N. J. L. 563. 8 Cook Y. Baldwin (1876), 120 Mass., 817; Bassett v. Haines (1858), 9 Cal. 260; Cf. Peterson v. Hulbard (1878), 28 Mich. 197. * Martin v. Bacon, Treadw. (,S. C.) Const, 133; Story, § 247. ^Nelson v. Bank (1868). 48 111. 37; Sciidder v. Bank (1875), 91 TJ. S. 406; C£. Bank v. Ely (1837), 17 Wend. ( N.Y.). 508. Contra, if before bill drawn, Kennedy v. Geddes (18.38), 8 Port. (Ala.) 263: Plummer v. Ly- man (1860), 49 Me. 229. '^Contra, Johnson v. Collings (1800), 1 East, 98; Bank v. Archer (1843), 11 M. & W. 383. ''Coolidge v. Po:i/so« (1817), 2 Wheat. CC. S.)66; Parker v. Gi-eeU (1829), 2 Wend. (N. Y.) 545; Merchants Bank v. Griswold (1878), 72 N. Y. 472; Ruiz v. Renauld (1885), 100 N. Y. 256. 8Id.; Boyce v. EdiimrdK (1830), 4 Pet. (tT. S.) 111. « Wilson v. Clements (1807), 3 Mass. 1. ABT. 32.] FORM AND INTERPRETATION. 45 Explanation 2. — Such promise must specify the bill R^^n^tes to be drawn, so as to distinguish it from any other.' Illusteations. 1. B. telegraphs to A., "I have no objections to accepting for you at 3 or 4 months for $2,500." B. may be liable as ac- ceptor on bill for $3,500 at 4 mouths, drawn in pursuance of the authority.'' 2. B. writes to A., "I authorize you to draw on me at ninety days from time to time, for such amounts as you may require, whole amount not to exceed $3,000." B. may be liable on a bill drawn in pursuance of the authority given.' Explanation 3. — The bill must be taken by the holder on the faith of such promise.* Illusteations. 1. A. draws a bill on B. After it is received by 0., B. writes to A. that he will accept the draft, and the letter is shown to C. C. cannot hold B. as acceptor.' AUter, if before C. receives the bill, A. either shows him the letter or informs him of its contents." 2. B. promises C. to accept a bill to be drawn by A. in his favor. D. discounts the bill so drawn, on the faith of B.'s promise to 0. to accept. B. subsequently refuses to accept. D. cannot hold B. as acceptor, sincfe a promise to accept is a chose in action and not assignable.' ^Nelson v. Sank (1868), 48 111. 36; BisseU v. Letvh (1857), 4 Mich. 450; Carnegie v. Morrison (1841), 2 Met. (Mass.) 381 at 406. '^Parker v. Gt-eele, (1829)j 2 Wend. (N. Y.) 545; and Central Bank v. Richards (1872), 109 Mass.4l3; Ct.Coffman v.Campbell (1877), 87111.98. 2 Ulster Bank v. McFarland (1843), 5 Hill (N. Y.), 432, S. C, 3 Den. 553; Cf. Barney v. Netvcomb (1851), 9 Gush. 46. But see Boyce v. Ed- wards, (1830), 4 Pet. (U. S.) 111. *Coolidge v. Payson (1817), 2 Wheat. (U. S.) 66; Pillans v. Van Mierop (1765), 3 Burr. 1663; Exchange. Bank v. Rice (1867), 98 Masa. 288; First Nat. Bank v. Pettit (1866), 41 III. 492; Steman v. Harrison (1862), 42 Pa. St. 49. Contra. Read v. Marsh (1844), 5 B. Mon. (Ky.) 8; ■Of. Grant v. Hunt (1845), 1 C. B. 44. '•Exchange Bank v. Riee (1!?67), 98 Mass. 288; Worcester Bank v. Wells (1844; 8 Met. (Mass.) 107; Ontario Bank v.Worthington (1834), 12 Wend. (N. Y.) 593. Cf. (1), lUustr. 5, supra, promise to pay. ^Bank v. El«ll8Sl). 17 Wend. (N. Y.) 508; Fairehild v. Felfman ;i884), 32 Hun (N. Y.), 398; Lewis v. Kramer (1852), 3 Md. at 289. ' Worcester Bank v. Wells, supra; M'Evers v. Mason (1813), 10 Johns. (N. Y.) 207; Carr v. Bank (1871), 107 Mass. 45 at 48. 46 BILLS OF mXCEANGE. [arts. 33-34. Keqnisites in K>rm. Note. — Is there any distinction between B.'s promise to the drawer to accept, .and his promise to pay, an existing bill? Many of the cases seem to regard them as the same, and gov- erned by like rules, though a careful examination of the cases will show that no Oourt has decided that a promise to pay an existing bill was not an accef)tance.' When B. accepts he thereby promises to pay the bill; therefore, when he promises to pay, he thereby, in effect, accepts the bill, and does not merely agree to accept. On what other ground can the cases cited below be reconciled?^ Undated acceptances. Time of ' acceptance- Art. 33. An acceptance need not be dated. Explanation. — lu the case of a Bill of Exchange payable after sight, the aQceptance should be dated, but extrinsic evidence is admissible to show on what date an undated acceptance was given.' N.OTE. — French Code, Art. 122, provides, that if a bill be payable after sight and the acceptance be not dated, time runs from the date of the bill; but see Nouguier, § 498. Art. 34. A Bill of Exchange may be accepted — (1.) Before it has been signed by the drawer, or while otheipwise incomplete.* (2.) After it is overdue.^ (3.) After it has been dishonored by a previous refusal to accept, or by non-payment, followed by pro- test." ' Cf. Uigrue v. Woodruff (1860), 29 Ga. 648; Overman v. Bank (1862), 30 JSr. J. L. at 68; Carr v. Bank (1871), 107 Mass. 45. 2Cf. Jones V. Bank (1864), 34 111. 313, with First Nat. Bank v. Pefiit (1866), 41 111. 492, and Nelson v. Bank (1868), 48 111. 36. Cf. SpauUing V. Andrews (1864), 48 Pa. St. at 413, with Steman v. Harrison (186!J),' 42 Pa. St. 49,. and Howland v. Carson (1850), 15 Pa. St. 453. SeeEdson V. Fuller (ISSO), 2 Fost. (N. H.) 183. ^Kenner v. Creditors (1830), 1 La. (0. S.) 120.; and Cf. Arts. 15 and 158, n. * London (& Southwestern Bank v. Wentworth (1880), 5 Ex. D. 96; Harm;/ v. Catie (1876), 34 L. T. N. S. 64; and Art. 23. ^Spauldirig v. Andrews (1864), 48 Pa. St. at 413; Williams v. Winans (1834), 2 Green (N. J.), 839. » Stockivell V. Bramble (1852), 3 Ind. 428; Of. Christie v. Peart (1841), 7 M. & W. 491, and Art. 157. - ARTS. 35-36.] FORM AND INTERPRETATION. 47 Illustrations. ' Time of acceptance. 1. A. draws a bill on B., dated January 1, payable one month after date. ,G., the holder, presents it for acceptance in March. B. accepts. As regards B., this is a valid acceptance of a bill payable on demand.' 2. The holder of a bill payable one month after sight pre- sents it to the drawee for acceptance. Acceptance is refused. A week after it is re-presented, and accepted. The accept- ance is valid.^ Note. — When a bill payable after sight is refused accept- ance, and theil subsequently accepted, the now uniform prac- tice is to ante-date the acceptance to the day the bill was first presented.' Art. 35. Unless the contrary appear, a Bill of Presumption •''-'-' as to time Exchange is prima fac%e deemed to have been ac- ce"p1ance*''' cepted before maturity and within a reasonable time after its issue, but there is no presumption as to the exact time of acceptance.* Illustration. B. accepts, without dating, a bill drawn payable three months after date. He attains his majority the day before the bill matures. This \s> prima facie evidence that B. accepted it while an infant.^ Art. 36. An acceptance must not express that the Acceptance acceptor will perform his contract by any other means pay^mone'y. than the payment of money." Illustration., A. draws a bill on B. for $100. B. accepts it, " payable in goods." This is invalid.' 'Mutfordv. Walcof{U9&), 1 Ld. Raym. 514; Of. Art. 201, n. ' Wynne v. Raikes (1804), 5 East, 514; Of. Grant v. Shaw (1820), 16 Mass. 341. " But Cf. Mitchell v. Degrand (1817), 1 Mason (C. Ct.), 176. * Roberts v. Bethell (1852), 12 C. B. 778; Masonv. Dousaij (1864), 35 111. at 433; Cf. Art. 132. 5 Id. « Russell V. Phillips (1850), 14 Q. B. 891; Cf. Art. 10, Expl. 3. 'Id.; Cf. Boehmy. Garcias (1807), 1 Camp. 425. 48 BILLS^ OF EXCHANGE. [akt. 37 Acceptance NoTH. — When the time of payment comes, the holder may, pay money. of course, accept goods in satisfaction of the debt due to him Drawee^oniy A.rt, 37. The acceptaiice of a Bill of Exchange by any person other than the drawee is invalid. Exception. — Acceptance for honor. (Art. 42.) iLlirSTKATIONS. 1. Bill addressed to Bl X. writes an acceptance on it. X. is not liable as acceptor.' 2. Bill addressed to B. B. accepts it. X. also writes an ao- ceptauce on it. X. is not liable as acceptor; ^ and parol evi- dence is not admissible to show that he guaranteed payment of the bill to the drawer.' 3. Bill addressed to the " Directors of thfe B. Company." The acceptance is signed by twO directors and the manager. The manager is not liable as acceptor.* Note. — If a person other than drawee write an acceptance on the bill, his liability will be determined by the same rules as in the case of irregular indorsements.^ See Art. Ill, n. Can a Case of need accept otherwise than supra protestf On the Continent he cannot. Byles and Parsons seem to think that under English law he may; but see Chitty on Bills, lOtb ed. 114. The uniform practice is for him to accept supraprotest. Explanation 1. — When a Bill of Exchange is ad- dressed to two or more drawees, whether partners or not, any one of them may accept so as to bind him- self.' Illustrations. • 1. A bill is addressed to B. & Co. X., a partner in that firm, accepts it in his own name. He may be liable as acceptor.' ' Davis V. Clarice (1844), 6 Q. B. 16; Mai/ v. KeUy (185S\ 27 Ala. 497. ' Jackson v. Hudson (1810), 2 Camp. 447; Smith v. Lockridge (1871), 8 Bush. (Ky.), 424. ' Steele v. MeKinlay (1880), 5 App. Cases, 754. * BuU V. Moi-rell (1840), 12 A. & E. 745. " Walton V. Williams (1870), 44 Ala. 347. f Owen V. Von Ulster (1850), 10 C. B. 318; Heemn v. Nash (1863), 8 Mmn. a1 411. ' Id.; Tombeckhee Bankr. Dumell (1828), 5 Mason (C. Ct.), SB; Cf. Cunningham v. Smithson (1841), 12 Leigh (Va.), 32. Contra, Heenan V. Nash (1868), 8 Minn. 407. ' ABT. 37.] FUEM AND INTERPRETATION. 49 2. A bill is addressed to B. and X. B. alone accepts. He Drawee only . , . , , ' , cau accept. IS liable as acceptor.' Note. — If a bill is addressed to a firm, an acceptance by a partner in his individual name may bind' the firm;^ in the ab- sence of statute requiring an acceptance to be signed by the acceptor.' Explanation 2. — k. Bill of Exchange may (proba- bly) be accepted by tlie drawee in any name he chooses to adopt.' Illtjstkations. 1. A bill is addressed to B. His wife accepts it, signing her name " Mary B." B. promises to pay the bill. He is lia- ble as acceptor." 2. Bill addressed to B., who is a partner in the firm of X; & Co. B. accepts it in the firm name. B. is liable personally as acceptor." Note. — It is to be noted that Lindus v. Bradwell * was de- cided before the Acts which required an acceptance to be signed by the acceptor, but the Court seems to rest its decision on the ground that, though a bill must be accepted by the drawee, he may accept in any name he chooses to adopt, and that, in this case, William B. chose to adopt pro hac vice the name of his wife to accept in. JEJxplanation 3. — In construing an acceptance, the address to the drawee and the acceptance must be read together. Illusteations. 1. A bill is addressed to the B. Company, Limited. Two of the directors accept it, signing thus: "X. & Y., directors of ^Owen V, Von Ulster (1850), 10 C. B. 318. ' Mason v. Rumsey (1808), 1 Camp. 304; Tolmanv. Hanrahan (1878), 44 Wis. 133. ' Heenan v. Nash (1863). 8 Minn. 407. But Cf. Yorkshire Banking Co. V. Beatson (1879), 4 L. R. C. P. 'D. 204. * Lindus v. Bradtcell (1848), 5 C. B. at 591; Ala. C. M. Co. v. Brain- ard (1860), 35 Ala. 476; Cf. Art. 71, Expl. 2. 'Id. 8 Nicholls V. Diamond (1853), 9 Exch. 154; Cf. Art. 72, Bxpl. 3. Con- tra, Markham v. Hazen (1873), 48 Ga. 570. 50 BILLS OF EXCHANGE. [arts. 38-39. Drawee only- can accept ' General , or tibsolute acceptance. -Qualiflea acceptance. the B. Co., Limited." Tliis is an acceptance by the company.' 2. A bill is addressed to " B., general agent of the X. Com- ■ pany." He accepts it thus: " Accepted on behalf of the Com- pany — B." B. is personally liable as acceptor.^ 3. A bill is addressed to B. & Co. B., a partner in the firm, accepts it in the firm's name, adding also his own name. This is the acceptance of the firm, and not of B. personally.' 4. A bill is addressed to " X. & Co." The proper style of the firm is " B., X. & Co.," and it is accepted in that name. This is a valid acceptance.' 5. B. accepts a bill bjank as to drawee. This is an admis- sion that he was the person intended, and he is liable as ac- ceptor.* Note. — In the case of signatures by agents, there is this dis- tinction between a bill and a note. A bill can only be ac- cepted by the drawee; so either the drawee is liable as accept- or, or no one' is liable, and the rule of construction is ut res magis valeat quam pereat. When the point arises on a note, the only question is whose is the signature — is it the signature of the principal or of the agent?" Art. 38. An acceptance may be — {a), General, or — (^), Qualified.' A General or Absolute acceptance assents without qualification to the order of the drawer. The form of words used is immaterial." Note. — The holder of a bill is entitled to an--absolute ac- ceptance: Art. 158; Cf. Art. 58, as to construction. Art. 39. A Qualified acceptance varies the effect of the bill as drawn; therefore an acceptance is qual- ified which is, 1 Okell V. Charles (1876). 34 L. T. N. S. 822, C. A. 2 Herald v. Connah (1876), 34 L. T. JST. S. 855 ; Mare v. Charles (1856), 5 E. & B. 978. Contra, Markham v. HaSen (1873j, 48 Ga. 570, s Re Barnard (1886), 32 Ch. D. 447, C. A. * Lloyd V. Ashby (1831), 2 B. & Ad. 28. ^ Wheeler v. Wehster (1850), E. D. Sm. (N. T.), 1. « Cf. Alexander y. Sizer (1869), 4 L. R. Ex. at 105. ' Rowe V. Young (1820), 2 Bligh, 391 H. L.; Hough v. Loving (1837), 24 Pick. (Mass.) 254. ' y n ^ ' Id. at 454. ART. 39.1 FORM AND INTEBPEJETATION. 51 (1.) Conditional— i. e., which makes payment by Qualified the acceptor dependent on the fulfillment of a condi- tion therein stated. Illustrations. 1. The drawee of a bill accepts it. '' Accepted — payable on giving up bills of lading for clover, per ship ' Amazon.' " ' 2. Or, " Accepted — payable when in funds." ' Note. — The condition as between immediate parties, may be written on a separate instrument, though absolute on the bill.' (2.) Partial, or restricted as to amount. Illustrations. 1. A. draws a bill on B. for $100. B. accepts it as to $50.* 2. A. draws a bill on B. for $100. B. accepts it, payable half in money, half in goods. This is valid as a qualified ac- ceptance for $50.* (3.) Local, or restricted as to place of payment. Illustrations. 1. Bill addressed to " B. of N. Y. City," is accepted payable at Albany, N. Y. This is a qualified acceptance.' 2. Bill addressed to " B. of N. Y. City," is accepted payable at the X. Bank, N. Y. City. This is a general acceptance.' Note. — As to the effect of drawing a bill payable at a par- ticular place, see Art; 173. (4.) Qualified as to time. ' Smith V. Virtue (1860), 30 L. J. C. P. 56; Cf. Swan v. Cnx (1814), 1 Marsh. 170; Re Howe (1871), 6 L. R. Ch. 838; Lamon v. French (1869), 25 Wis. 37. , ^Id.; Julian- V. Sherbrooke (1754), 2 Wils. 9; Wintermute v. Post (1854), 4 Zabr. (N. J.) at 428; Pope v. Heath (1859), 14 Cal. 403; Crow- ell y. Plant {181S), 53 Mo. 145. AUter, ii drawn vnyMe " if in funds, " Kemble v. Lull (1843), 3 McL. (C. Ct.), 272. " Ford V. Angelrodt (1865), 37 Mo. 50. * Cf. Wegersloffe v. Keene (1709), 1 Stra. 214. ^ Petit V. Benson (1697), Comb. 452; Cf. Rowe v. Young (1820), 2 B%h at 409, H. L. if \ i> " Walker v. Bank (1852), 13 Barb. (N. T.) 636. ' Troy Bank v. Lauman (1859), 19 N. T. 477; Myers v. Standart <1860), 11 0. Et. 29. 52 BILLS OF EXCHANGE. [aet. 40. Qualified ILLUSTRATIONS, acceptance. 1. A. draws a bill on B., payable two months after date. B. accepts it, payable six months after date.' 3. A. draws \a bill on B., payable at sight. B. accepts it " payable in fifteen days." ^ 3. B. accepts a bill drawn on him, "on condition that it be renewed," for six months.' (5.) The acceptance of some one or more joint drawees, but not of all. Illusteation. Bill drawn on B., X. and Y. B. accepts. X. and Y. refuse to accept. This is a qualified acceptance.* Note. — German Exchange Law, Art. 22, admits a partial acceptance, but makes any other qualification a refusal to ac- cept. French Code, Art. 124, prohibits a conditional, but ad- mits a partial acceptance, directing the holder to protest the bill as to the residue. England and the United States seem to be the only countries that allow of conditional acceptance. Cf. Art. 10; and Art. 271. Effect of quail- Art. 40. A Qualified acceptance is valid as re- fled accept- ^ ■■■ gards the acceptor and all subsequent parties, and as regards prior parties who assent thereto. A prior party (drawer or indorser) who does not authorize or assent to it is (probably) discharged.^ Note. — In Howe v. Toung^ the judges differed in opinion as to the effect of taking a qualified acceptance without the consent or subsequent assent of prior parties, some thinking that prior parties would only be discharged if it could be shown that their rights were injuriously affected, others think- ' Russell r. Phmips(18h0), 14 Q. B.891; Cf. Fanshatoev. PeatOSbl), 26 L. J. Ex. 314. 2 Hatcher v. Stalworth (1858), 25 Miss. 376. • Russell V. Phillips, supra. * Byles, p. 186, citing Marius, No. 16; N. T. Civil Code, (Draft of 1888), § 2832; Novguier, § 451. . ■ ' Roue V. Young (1820), 2 Bligh, 391, H. L., third question to judges and answers thereto. Cf. Whitehead v. Walker (1842), 9 M. & W. at 609; Walker v. Bank (1852), 13 Barb. (N. Y.) 636. auce. AKTS. 41-42.] FOSk AND INTERPRETATION., ing that they would be ipso facto disoharged. See by way of Effect of analogy Arts. 248j 249 6n Alterations. Suppose the holder ^"o'ep^anoe. takes a qualified acceptance. All admit that he must give no- tice to the drawer. If the drawer, on receipt of the notice, as- sent, or, perhaps, do not express his dissent, well and good. But is he not entitled to say, " You have altered my contract behind my back, I am no longer a party to it? JSTon hoBC in fmdora veni. If the drawee do not in terms assent to my order I am entitled to notice, of dishonor, and notice of dis- honor includes a demand of payment. This you cannot give." Can the holder reply, •' The dra-wee is to some extent your agent, and the altered contract was entered into for your benefit? " Surely not. Acceptance for Honor supra Protest. Art. 41. A Bill of Exchange may be accepted for what buis. honor supra protest, which has been — (1.) Dishonored by non-acceptance;' or (2.) Protested for better security after acceptance. Art. 42. Any person, not being a party already who may liable thereon, may, with the consent of the holder,' honor. interveue and accept such bill . after protest, for the honor of the drawer or an indorser.* Illustration. Bill dishonored by non-acceptance. The drawee, or a , stranger to the bill, may accept it for the honor of the drawer or an indorser.^ NoTE.^But if the drawee is under obligation to accept, he can not acquire any different rights by accepting supra pro- test." This kind of acceptance is not common in America. In France and Germany the rule is that if two or more persons are willing to accept supra protest, the holder must take the acceptance of the person whose payment will enure for the ^Muffordv. Walcoi (1698), 1 Ld. Ravm. 575: French Code, Art. 126; German Exchange Law, Art. 56. ^Hx parte Wackerba/h {1800), 5 Ves. Jr. 574; Cf. Art. 183. 'ByUs, p. '^66; Chitty. pp. 243, 244; Story; Beawes, No. 37. ^Hoare v. Caxenove (1812), 16 East, 391; Desha v. Stewart (1844), 6 Ala. 852; French Code, Art. 125; German Exchange Law, Arts. -56-61. ^Swope V. JJoss(1861), 40 Pa. St. 186; Beawes, No. 32; Nougmer, ^ s'chimmelpennith v. Bayard (1828), 1 Pet. (U. S.) 264. 54 BILLS OF EXCHANGE. [arts. 43-44. Who may accept for honor. Holder's op^ tiou. JTime of ac- ceptance tor honor. benefit of most parties.' Beawes, No. 43, says that if a bill be accepted for the honor of an indorser, there may be another acceptance supra protest for the honor of any party prior to him. This is not resorted to in practice; but if the acceptor supra protest fails before the maturity of the bill, a second ac- ceptance supra protest i& sometimes obtained. Art. 43. It is optional with the holder to take or refuse an acceptance supraprotesV Exception. — When the drawer of a foreign bill gives a reference to a Case of need, and by the law of the place where such bill is drawn presentment to the Case of need is obligatory, the -holder (perhaps) can not refuse to take the acceptance supra protest of such Case of need.' Note. — By German Exchange Law, Art. 57, if the bill con- tain a reference to a Case of need, the holder is bound to pre- sent the bill to him; in other cases he may refuse acceptance supra protest. Under French Code, Art. 126, the holder, per- haps, can not in any case refuse. Art. 44. An acceptance supra protest may be given at any time after the bill has been protested and before it is over-due. Explanation. — A bill noted for protest is deemed to be protested/ Illusteatioij-. Bill payable one month after sight is protested for nan-ao- ceptance. It may be accepted supra protest eight days after- wards. ' NoTB. — In France, perhaps, the acceptance for honor must be given at the time th'e bill is protested: JVouguier, § 570. l^Nouguier, § 575; German Exchange Law, Art. 66. ^Byles,p.2m; Chitty, pp. 243, 244; Story, § 122; Beawes, No. 37. Cases cited by these authors do not seem in point. °Cf. Art. 184. * Geratopulo v. Wieler (1851), 20 L. J. C. P. 105. »Cf. Williams v. Germaine (1827), 7 B. & C. 468. ARTS. 45-48.]- FORM Al^D INTERPRETATION. 55 Art. 45. An acceptance supra protest must be in J°p,™n°ee for writing on the bill, signed by llie acceptor, and duly^"°"' attested by a notarial act of honor.' Illustration. The acceptor for honor writes on the bill, " Accepted supra protest for the honor of C, and will be paid at my office if regularly presented when due;" or, "Accepted under protest for the honor of A., and will be paid for his account if refused when due and regularly protested."^ Or simply, "Accepted, S. P." He then signs. Note. — By German Excljange Law, Art. 58, the acceptance supra protest is to be recorded in an appendix to the protest. By French Code, Art. 136, the acceptance supra protest must be recorded in the protest, and the protest signed bv the acceptor : Cf. " Nonguier, § 570." In England the notarial act, in this case called an " act of honor," is appended to the protest. A "notarial act" means "any instrument, indorse- ment, note, or entry made or signed by a notary public in the execution of the duties of his office."' It was formerly the practice for the acceptor supra protest to appear personally before the notary with witnesses, to declare for whose honor he accepted. Modern custom no longer requires this.* A clerk is usually sent to the notary. Art. 46. There may be an acceptance SM«ra Partial ac- r-ii-i-ib oi'ptance for 'protest lor part oi the amount oi the bill. i'"°'»'- Art. '47. An acceptance supra protest should Presumption, state for whose honor it is given. If it do not, it is deemed to be given for the honor of the drawer." Art. 48. An acceptance swjora protest (probably) EAfeot of ac- 111,,. oeptanoe ior suspends until non-payment the holder s right of ^°°°''- action, which arises on non-acceptance.' 'Cf. Gazzam v. Armstrong (1835), 8 Dana (Ky.), 554; Bt/les, p. 265; Chitty, p. 244; Story; Brooks' Notary, 4 ed., p. 93. ^Cf. Mitchell Y. Baring (1829), 10 B. & C. 4; Howland v. Carson 1850), 15 Pa. St. 453. Indian Stamp Act, 1870, § 3. * Brooks' Notary, 4 ed. p. 94. 6 Id. p. 97. n " Gnzzam v. Armstrong supra; CTiitty, p. 243; Daniel. § 525; German Exchanfje Law, Art. 59; Notiguier. § 578. 'Cf. Williams v. Germaine aWl), 7 B. & C. at 477; Chitty, p. 238. S6 BILLS OF EXCHANGE. [aht. 49. Effect of aooeptariee for honor. Sufficiency in form. Note. — Query, if in some cases the right of action be not taken away and not merely suspended, but the point has not been judicially discussed. On payment supra protest, or dis- honor at maturity, new rights and obligations arise: Of. Art, 344. By French Rode, Art. 138, the holder's rights against the drawer and indorsers are not affected by an acceptance supra protest ; but then the holder has no right of action until the maturity of the bill: he can only demand security: Of. Art. 157. By German Exchange Law, Art. 61, the holder is entitled to demand security from parties prior to the party for whose honor the acceptance is given. Signature. Art. 49. "Signature" means the writing of a person's name on a bill, in order to authenticate and give effect to some contract thereon. (C£ Art. 52.) Explanation. — A signature sufficient in point of form in the case of an ordinary -contract is (perhaps) sufficient in the case of a bill. Illtjsteations, 1. A signature in pencil is sufficient.' 2. A lithographed signature, or a signature impressed with a stamp, is (perhaps) sufficient.^ 3. A note in the form, "I, J. B., promise et cet." is suffi- ciently signed, though the usual form is, "I promise, et cei.," signed J. B.' 4. Bill drawn in the form, " Mr. A. requests Messrs. B. & Co., et cet." This is (probably) a .sufficient signature by the drawer.* 5. A- bill under seal, without signature, is not sufficiently' signed, unless the contrary be provided by statute.' , ' Geary v. Physic (1826), 5 B. & C. 234; Reed v. Roarh (1855), 14 X6X. O^a. '' ' Cf. Eoc parte Birmingham Banking Co. (1868), 3 L. R. Ch. at 653, 654. 8 Tat/lor V. Dohhin (1719), 1 Stra. 399, 72^n» (1875), 118 Ma?P. 537. *Lysaght v. Bryant (1850), 9 Q. B. 46; Cf. Grimm v. Warner (1876), 45 la. 106. AKT._54.] FORM AND INTERPRETATION. 61 quently holds it on his own account.' There is this difference Delivery between an acceptance and the other contracts on a bill. The °«'^--"y' drawee has no property in the bill, therefore an attornment to the holder will be presumed on slight evidence, perhaps the mere intiniation by the drawee of the fact that the accept- ance has been written.^ Art. 54. As between immediate parties ( Art. 88) , DeUTery by delivery, in order to be effectual, must be made by the obligor or his agent. Illustrations. 1. C, the holder of a bill, specially indorses it to D. He dies before delivering it, but his executor subsequently hands the bill to D. The indorsement to D. is invalid, for an ex- ecutor is not the agent of his testator. D. cannot sue on the biil.5 3. B. makes a note payable to C. or order one year after his death, and sends it in a sealed wrapper to X., with instructions to return it to B. if he calls for it; otherwise not to be opened in his lifetime. X. may make a valid delivery of the note to the payee upon the maker's death.* 3. X., by means of a false pretense, or a promise or condition which he does not fulfill, procures A. to draw a check in favor of 0. X. delivers it to C, who receives it bona fide and for value. 0. acquires a good title, and can sue A., for X. is osten- sibly A.'s agent.° 4. X. signs a note as surety, on condition that it shall not be delivered by B., the maker, to C, the payee, until signed by Y. 'Cf. in illustration Fields. Cart- (1828). 2 M. & P. 46; Bosanquet v. Forster (1841), 9 C. & P. 659; Belcher y. Campbell (1845), 8 Q. B. 1. Cf. also Ancona v. Marks (1862), 'SI L. J. Ex. 16ci, ratification of deliv- ery; Ex parte Cote (1873), 9 L. R. Ch. 27, delivery by mistake and revocation by consent . ''Cf. Cox V. Troy (1822), 5 B. & Aid. 474; approved Chapman v. Coitrell (1865), 3 H. & C. 857; Art. 32 n. Foreign Laws. ' Bromage v. Lloyd (1847), 1 Exch. 32; Clark v. Sigourney (1846), 17 Conn. 611. * Giddings v. Giddhigs' adm'r (1878), 51 Vt. 227; S. C, 31 Am. B. 682. a.Worth v. Case (1870), 42 N. Y. 362. ^Cf. Watson v. Russell (1862), 3 B. & S. 84, affirmed, 6 B. & S. 968, Ex. Ch.; GouldY. Segee (1856), 5 Duer (N. T.), 260; Fearing v. Clark (1860), 16 Gray (Mass.), 74. Contra, unless maker estopped because neg- ligent, Chipman v. Tucker (1875), 38 Wis. 43. 62 BILLS OF EXCHANGE. [akt. 55. Delivery by as co-surety. X. is liable to a bona fide holder for value, though delivered contrary to the agreement.' 5, A. draws a check payable to bearer, intending to pay it to X. It is stolen from his desk before he issues it, and is sub- sequently negotiated to C, who takes it for value and without notice. C. acquires a good title and can sue A.^ defwer°°°'^ Art. 55. As between immediate parties (Art. 88), a bill may be shown to have been delivered condition- ally, or for a special purpose only, and not for the purpose of transferring the entire property therein," . Illustrations. 1. B. makes a note payable to C, who sues him on it. B. can defend himself by showing that the note was delivered, to C. on condition that it was only to operate if he should procure B. to be restored to a certain office, and that B. was not so re- stored.* <;. C, the holder of a bill, indorses it in blank, and hands it to D., on the express condition that he shall forthwith retire certain other bills therewith. He does not do so. D. cannot sue C, and if he sue the acceptor, the latter may set up the jus tertii.^ 3. C, the holder of a bill, indorses it specially to D., in or- der that he may get it discounted for him. D., in breach of trust, negotiates the bill to E. If E. take the bill bona fide and for value, he acquires a good title, and can sue all the par- ties thereto. If he do not so take it, he cannot sue C; and if ' Vearsdorff v. Foresman (1865), 24 Ind. 48 ' ; Cf. Gage v. Sharp (1867), 24 la. 15. Contra, i£ non-negotiable, Ayres v. Milroy (1873), 53 Mo. 516. 2 Ingham v. Primrose (1859), 7 C. B. N. S. at 85; Cf. Clarice v. JoAre- son (1870), 54 111. 296; Worcester Bank v. Bank (1852), 10 Cush. (Mass.) 488 (bank bills). But Cf. Burson v. Huntington (1870), 21 lick 415; Baxendale v. Bennett (1878), 3 L. R. Q. B. D. 525. 8 Cf. Druiff V. Farker (1868), 6 L. R. Eq. at 137; Salmon v. Wehh (1852), 3 H. L. Cas. at 518; Benton v. Martin (1873), 52 N. T. at 574; Lovejoy v. Bank (1880), 23 Kans. 331. * Jeffries v. Austin (1726), 1 Stra. 674. Because a failure of considei;- , ation r 5 Bell v. Ingestre (1848), 12 Q. B. 317; Cf. Seligman v. Huth (1877), 37 L. T. 488; Cf. Ayres v. Doying (1886), 42 Hun, 630. Sed qu. See next note. ART. 56.] FORM AND INTERPRETATION. 63 he sue the acceptor, the latter may set up that the bill is C.'s;' Conditional further, C. can bring an action against E. to recover the bill or the proceeds.^ 4. C, the payee of a bill, indorses it to D. D. sues C. as indorser. C. may show that he and D. were jointly interested in the bill, and that he indorsed it to the latter to collect on joint account.' 5. B. makes a note for $100 payable to 0. or order. C. sues B. Evidence is admissible to show that the note was given as collateral security for a running account, and what the state of that account is.* Note. — Compare this Art. with the next. JEsorow. — A deed delivered conditionally is called an escrow, and by analogy the term is sometimes applied to bills. Neither can be delivered as an escrow to the obligee or promisee, but only to a third party." There is, however, this distinction: a deed delivered as an escrow cannot become operative until the condition is fulfilled; but a bill so delivered becomes abso- lute in the hands of a Sowff _/?fZe holder for value without notice, whether the condition is fulfilled or not.* When a bill is de- livered conditionally or for a special purpose, the relations be- tween the person who so delivers it and the person to whom it is delivered are substantially those of principal and agent.' The person to whom it is delivered belongs, perhaps, to the class of agents called bailees;' at.Ieast, if the terms bailor and bailee be used in the extensive sense given to them by Story, in his work on Bailments. Construction. Art. 56. The contracts on a bill, as interpreted bihs are contracts in ■ Lloyd V. Howard (1850), 15 Q. B. 995; Cf. Barler v. Richards (1851). ■"""'^g- 6Exch. 63; Bale v. Gear (1871), 38 Conn. 15; Chaddoek v. Vanness (1871), 85 N. J. L. 517. See Art. 54, Illustr. 3. 'Goggerh/v. CutKbert (ISOti), 2 N. R. 170; Of. Alsager v. Close <1842), 10 M. & W. 576; Mutfy Loll v. Dent (1853), 8 Moore, P. C. 319. ' Denton v. Peters (1870), 5 L. B. Q. B. 475. * Cf. Ex parte Twogoud (1812), 19 Ves. 227; Re Boys (1870), 10 L. R. Eq. 467, and Art. 84. ^Massman v. Holscher {1811), i^ Mo. 87; Stewart v. Anderson (1877), 59 Ind. 375; Cf. McCramer v. Thompson (1866), 21 la- at 249. Contra, Bell V. Ingestre (ISiS), 12 Q. B. 317; Alexander v. Wilkes (1883), 11 B. J. Lea (Tenn.), 221. 'Art. 54; Whitmore v. Nickerson (1878), 125 Mass. 496. Contra, unless negligent, Chipman v. Tucker (1875), 38 Wis. 43. ■'Maguire v. Dodd (1859), 9 Ir. Ch. 452. 'Cf. Lloyd Y. Howard (1850), 15 Q. B. at 1000, Erie. J.; Manley y. Boycot (1853), 2 E. & B. at 56, Ld. Campbell. 64 BILLS OF EXCHANGE. [art. 56. Bills are fey the Law Merchant, are contracts in writing. Ex- contracts In •' - ' . writing. trinsic evidence is not admissible to contradict or vary tbeir eflfect.' Explanation. — Evidence is admissible to impeach the consideration between immediate parties.^ Exception. — The obligation of the parties to a bUl may be released verbally and without consideration : Art; 239. Illustkations. 1. The mere signature of the holder on the back of a bill (indorsement in blank) is a contract in writing to this effect: • 1. I hereby assign this bill to bearer. 3. I hereby undertake that if the bearer duly present this bill, and it is not honored, I, on receiving due notice, will indemnify him.' 3. Parol evidence is not admissible to show that an indorser in blank agreed to be absolutely liable,* or that he indorsed to transfer title only and without recourse,^ or merely to identify the payee,' or that a restrictive indorsement was to be treated as a general indorsement.' 3. A. draws a bill on B, in favor of C, and issues it to the latter, who gives value. A. thereby incurs the ordinary ob- ligations of a drawer. If B. dishonor the bill and C. sue A., ■Alrey v. Crux (1869), 5 L. R. C. P. 37. 2 Id. at 45. See Art. 14, and Chap. III. 8 Cf. Suse V. Pompe (1861), 80 L. J. C. P. 75, at 80; Dale v. Gmr (1871^, 88 Conn. 15; Chaddock v., Vanness (1871), 35 N. "J. L. 617; Lovejoy v. BanTc (188,0), 23 Kan. 331; Shelton v. DusWre (1879;, 92 111. 49; Prescott Bank v. Caverly (1856), 7 Gray (.Mass.), 217. Contra, Ross V. Espy (1870), 66 Pa. St. 481; Harrison v. McKim (1865), 18 la. 485, but see American Em. Co. v. Clarh (1878), 47 la. at 675. *Bodney v. Wilson (1877), 67 Mo. 123; Bigelow v. Colion (1859), 13 Gray (Mass.). 809; Banh v. Smith (1858). 27 Barb. (N. Y.) 489; Fitil^ V. GreeH (1877), 85 111. 535. AUter of quasi-indorsements, Art. 217. ^ First Nat. Banh v. Ba«jfc,(1873), 20 Minn. 63; Charles v. Denis (1877), 42 Wis. 56. Contra, Harrison v. McKim (1865), 18 la. 485 (be- cause a fraiid?); Commissioners v. Wasson (1880), 82 N. C. 308; Day v. Thompson (1880), 65 Ala. 269; Taylor v. French (1879), 2 Lea (Tenn.) 257 ^'stach V. Beach (1881), 74 Tnd. 571. ''Mechanics Banh \. Packing Co. {mi), A. Mo. Ap. 200; Third Nat. Bank V. Clarh (1877), 23 Minn. 263. ART. 56.] FOEM AND INTERPRETATION. 65 oral evidence cannot be admitted to show that A.'s liability as Bills are ; . , contracts in drawer was conditional on the performance oi certain acts by writing. C., and that 0. had not done them.' 4. Bill drawn in ordinary form. Action by payee against acceptor. Evidence is not admissible to show that it was in- tended to be paid out of a particular fund which is no longer available," or that a bill absolute in terms is in any other re- spect conditional.' 5. Bill drawn conditionally. (Art. 10.) Evidence is not admissible to show that the condition has been performed, and that therefore the bill is no longer conditional and invalid. A bill must be va-lid ab initio.* 6. Parol evidence is not admissible to vary the time of pay- ment,^ or amount payable,' or to show an agreement not to negotiate a negotiable bill,' or that a bill for one hundred dol- lars should be payable in goods or bank notes;' but may- show parol agreement as to place of payment of bill payable generally.' 7. B. delivers to 0. a note signed " B., Treasr. St. Paul's Parish." Parol evidence to show an agreement that the Parish should be liable and not B. personally, is inadmissible.'" 8. Bill in the ordinary form accepted by B. and held by D. Evidence is admissible to show that D., after the bill was in- dorsed to him, was informed that B. had accepted the bill for ^Abrey v. Crux (1869), 5 L. B. C. P. 37; Cf. Am. Em. Co. v. Clark (1878): 47 la. 671; Wood v. SurrelU (1878), 89 HI. .107. ^Camjjhell v. Hodgson (1819), Gow. 74; Cf. Richards v. Richards (1831), 2 B. & Ad. at 454, 465. ' Weaver v. Fries (1877), 85 111. 3S6; McDonald v. Elfes {1878), 61 Ind. 279; Jones v. Shaw (1878), 67 Mo. 667; Tower v. Richardson (1868), 6 Allen (Mass.), 351. '■Colehan v. Cooke (1793), Willes, 397; Miller v. Excelsior Stone Co. (1878), 1 Brad. (111.) 273. ° Cf . Drain v. Harvey (1855), 17 C. B. 257; Hey wood v. Perrin (1830), 10 Pick. (Mass.) 228; Strachan v. Muxlow (1869), 24 Wis. 21. ^Dawson v. Bank (1842), 4 Scam. (111.) 56; Of. Besant v. Cros^ (1851), 10 C. B. 895; St. L. Ins. Co. v. Homer [lUh), 9 Met. (Mass.) 39; Mahan V. Sherman (1845), 7 Blackf. (Ind.) 378. ''Krlox V. Clifford (1875), 38 Wis. 651. " Cox V. Wallace (1839), 5 Blackf. (Ind.) 199; Bradley v. Anderson (1838), 5 Vt. 152. « Cox V. Bank (1879), 100 U. S. 704. at 713. "> Tucker M. Co. v. Fairbanks (1867), 98 Mass. 101 at 104; ■Sturdivant V. Hull (1871), 59 Me. 172. Admissible if language ambiguous, Condon V. Pearce (1875), 43 Md. 83. Art. 76. 5 66 BILLS OF EXCHANGE. [AKT. 57. Custom of trade. ?i"?°^!l? ■ the accommodation of X., and that D. g'ave time to X., the con tfrSfCiis i n - * writing. principal debtor, without the consent of B., the surety, thereby discharging the latter.' Note. — This Art. is not inconsistent with Art. 55. The distinction is this: Evidence is admissible to show that What purports to be a complete contract in writing is merely an inchoate transaction; but evidence is not admissible to vary the terms of an existing and complete contract in writing. The difficulty is to determine within which class a given trans- action ialls.^ As between immediate parties a contemporane- ous writing,' or a subsequent written agreement,* may control the effect of a bill, subject to the same conditions that would be requisite in the case of an ordinary contract; but the mere fact that a bill refers to a collateral writing or agreement which is conditional in its terms, will not vitiate^the l)ili in the hands of a person who has no notice of its contents.* Of. also Art. 9 and Art. 14. , Art. 57. Questions relating to bills, when not con- cluded by authority, arfe to be determined by the usage of trade, if such there be.° Explanation 1. — The existence, nature, and scope of a giyen usage is a question of fact.' Explanation 2. — A general usage once incorporated into a judicial decision becomes part of the Law Mer- chant, and evidence of custom to contradict it is inad- missible.* ' Overend v. Oriental Corp. (1874), 7 L. R. H. L. 348; Subhard v. Gurney (1876), 64 N. Y. 457; Cf. Nurre v. Chittenden (1877), 56 Ind. 462; Irvine v. Adams (1879), 48 Wis. 468; Cf. Art. 245. ' E.g. ,compMe the facts in Abrey v. Crux, supra, with those in' Holmes v. Kidd (1858), 3 H. & N. 891, Ex. Ch. ^Ct. Brown v. Lang ley {i8i2), 4 M. & Gr. 466; Salmon v. Webb (1852), 3 H. L. Ga. 510; Maillard v. Page (1S7j), 5 L. R. Ex. 312; Dam V. Brown (1876), 94 U. S. 423; Wade v. iVade (1872), 36 Tex. 529. *McManus v. Barh (1870), 5 L. R. Ex. 65: ^J'Jury V. Baker (1858), E. B. &" E. 459; Taylor v. Curry (1871), 109 Mass. 36. « Goodwin V. Robarts (1875), 10 L. R. Ex. 337, Ex. Ch. As to allow- ance of grace. Mills v. Bank (1826), 11 Wheat. (U. S.) 431; Woodruff l-Bank (1841), 25 Wend. (N. Y.) 673; Mo^-yison v. Bailey (1855), 5 0. o n}^- ^^ '° demand by notary's clerk, cf. Art. 177 n. See Daniel, 8 623. 'Id. «Id at 357; Ct. Brandao v. Barneti [lim, 8 C. B. at 530, H. L.; Perkins v. Bank (1839), 21 Pick. (Mass.) 483. AKT. 58.1 FORM AND INTEEPRETATION. 67 IllUSTEATIONS. Custom of 1. Bill indorsed "Pay C," omitting the words "or order." *' The court having decided that such bills are still negotiable by indorsement, evidence that by custom they are not negotia- ble is inadmissible.' 2. If a foreign bill be dishonored, the indorser is by the Law Merchant liable for the re-exchange. Evidence that by local custom the holder is entitled either to the re-exchange or to the amount he gave for the bill, at his option, is inadmissi- ble.2 3. Action by customer against banker foi' not honoring a check. The banker may show that the check was marked " post dated," and that it is the custom of bankers in the city of London not to honor checks which are marked post dated.' 4. Action by a bank to recover back the proceeds of a check paid a collecting bank, the payee's indorsement having been found two years afterpayment to have been forged. Evidence of a local usage, making it the bank's duty to examine and satisfy itself as to the genuineness of the indorsement and to return the check immediately, if not good, is inadmissible.* NoTB. — Goodwin v. Roharts (1875),' is important, as show- ing that the novelty of a general usage is no objection to its being incorporated into the Law Merchant, thereby to some extent overruling Grouch v. Credit Fonder (1873), 8 L. R. Q. B. at 386. A particular or local usage must, it is conceived, be proved de novo each time. When both authority and custom Rre silent, foreign law is usually resorted to as a guide. See Introd., p. xii. Art. 58. When the terms of a bill are ambiguous, construed the construction most favorable to the full validity of '*™* ^ the instrument must be followed.' iLLTJSTEATIOlSrSi 1. An acceptance will, if possible, be construed as absolute, not qualified, and a mere memorandum, inconsistent with such ^Edic V. East India Co. (1761), 2 Burr. 1216. 'Suse V. Pompe (18601, 30 L. J. C. P. 75. '^Emmanuel v. Roharts (1868), 9 B. & S. 121. * Corn ExeJiange Bank v. Nassau Bank (18881, 91 N. T. 74. no L. R. Eq. 337, affirmed, 1 L. R. Ap. Ca. 476. ^Mare v., Charles (1856), 5 E. & B. at 981, Ld. Campbell. 68 BILLS OF EXCHANGE. [art. 69. "Construed favorably. Formal , requisites. copstruction, is to be rejected as being no part of the accept- ance.' 2. The address to the drawee will be read in with the accept- ance, ut res magis valeaK" 3. Note in the form, " I promise not to pay," The word " not" will be rejected," 4. A note for " thee hundred dollars," payable on " the first of March, eighteen and sixty-eight," will be construed as a note for $300, payable March 1st, 1868.* 5. Indorsement in the form, " Pay B., or order, value in ac- count with X." This is not to be construed as restrictive.' 6. Holder may treat an ambiguous instrument either as a bill or as a note at option-." 7. Instrument invalid as a bill for not designating a drawee. If it be accepted, the holder ma,y treat it as a note.' Conflict of Laws. ArL 59. The validity of a bill as regards requi- sites in form is (generally) determined by the law of the place of issue, and the formal validity of super- vening contracts, such as acceptance or indorsementj is (generally) determined by the law of the place where such contract is made/ Illustkations, 1. By German law a bill need not express the value re- 1 FansJiawe v. Peat (1857), 26 L. J. Ex. 314; Of. Stone v. Metcalfe (1815), 4 Camp. 217; Fitch v. Jones (1855), 5 E. & B. at 246; If. S. v. Bank (1841), 15 Pet. (U. S.) 377; Cofman v. Campien(im), 87 111. 98. '■' Mare v. Charles, supra; Wheeler v. Webster (1850), 1 E. D. Sm. (N. Y.)l. 3 Russell V, Langstaffe (1781), 2 Dougl. 514. * Burnhamv. Allen (1854), 1 Gray (Mass.), 496. and Mai>s\e v. Belford (1873), 68 111. 290. Of. Ohm v. Young (1878), 63 Ind. 432; Deshon v. Leffler (1879), 7 Mo.'Ap. 595. ^Murrow v. Stewart (1853), 8 Moore, P. C. at 276. 6 Edis V. Burl, (18:^7), 6 B. & C. 433; Almy v. Winslow (1879), 126 Mass. 342, at 344. ' Fielder v. Marshall (1861), 30 L. J. C. P. 158. Cf. Arts. 37 and 274, 'Cf. Guepratte v. Young (1851), 4 DeG. & S. 217; Carnegie v. Jfbmso» (1841), 2 Met. (Mass.) 381; Mendenhallv. Gaos me^i^is has No^«ag^^ity no.capacity to contract by bill.' Note. — The liability for necessaries is like that of infants: Art. 63. Contracts by bill between parties whose countries are at war, are void.^ Art, 63. An infant incurs no liability on a bill, by Minora liabUity. becoming a party thereto. Illustration. B., an infant within three months of attaining his majority, accepts a bill drawn on him for necessaries, payable one month after date. He thereby incurs no liability on the bill;* a for- tiori if the bill is not for necessaries. Explanation. — If his contract is ratified after at- taining majority, he becomes liable on the bill,' Note. — The ratification may be by the mere act of the party, as in retaiiiii^ the consideration after a request to return it," or by any language from which a promise to pay may be reasona- bly implied,' if addressed to a party in interest." The ratifica- tion is binding though given in ignorance that he was not legally liable on the bill.' In England, by a recent statute, an infant's contracts are made incapable of ratification!'" It was formerly held in England that if an infant traded and accepted bills, he was estopped from setting up his infancy," but this ^Sentance v. Poole (1827), 3 C. & P. 1; Jennera v. Howard (1842), 6 Blacl--f. (Ind.) 240; Seaver v. Phelps (1831), 11 Pick. (Ma«s.) 304. 2 Wnieson V. Patteson (1817), 7 Taunt. 439; Woods v. Wilder (1870), 43 N. Y. 164; » Williamson v. Watts (1808), 1 Camp. 552; M'CrilUs v. How (1826), 3 N. H. 348. *Id.; Swasei/ v. Vanderhey den (1813), 10 Johns. (N. T.) 33j Hen- derson V. Fox (1854), 5 Ind. 489. Contra. Earle v. Meed (1845), 10 Met. (Mass.) 387. ^Edgerly v. Shaw (1852), 5 Post. (N. H.) 514; Reed v. Baichelder (1840), 1 Met. (Mass.) 559. "Aldrich v. Grimes (1839), 10 N. H. 194. ''Martin v. Mayo (1813), 10 Mass. 137; Whitney v. Dutch (1817), 14 TlJqqj^^ 457 ^iCoit v. l/nderhill (1838), 9 N. H. 436; Hodges v. Hunt (1856), 22 Barb. {N. T.) 150. ^Mersey. Wheeler (1862), 4 Allen (Mass.), 570. Contra, Harmer v. Killing (1804), 5 Esp. 102; Curtin v. Patton (1824), 11 S. & E. CPa.) 305. '"Infants' Relief Act (1874), 37 & 38 Vict. c. 62; Ex parte Kibble (1875), 10 L. R. Ch. 373. ■ "^^ Ex parte Lynch (1876), 2 L. R. Ch. D. 227. 74 BILLS OF EXCHANGE. Lasts. 64-65. ^'".°f's ruling is no longer law.' In the above • illustration the infant would be liable on the consideration, though by the weight of authority, not on the bill. The age at which infancy ceases differs much in different countries: e. g., in India it is 18; in Germany, 33. In most continental coun- tries a distinction is drawn between infant traders and non- traders, the former having full capacity. iransftr ^^*' ^'^" Wheii a bill is payable to the order of an infant, his indorsement (probably) transfers the property therein.^ Note. — Cf. Art. 68. An infant's executed contracts are usually valid. As an infant may be an agent, his indorsement in that character gives rise to no difficulty. In America it is not uncommon to get a bill made payable to the order of an infant clerk; his indorsement then operates as an indorsement sansreeours, though without discrediting the bill. Marriedwo- Art. 65. A married womanlncurs no liability by man s liability. _ J J drawing, indorsing or accepting a bill.' Illusteation. A married woman makes a note, signing it "J. B., widow.'' She is not liable thereon, even to an innocent holder, thoug;h she fraudulently represents herself unmarried.* And such note being void is incapable of ratification after discoverture.' Exceptions- — 1. Married woman whose husband ivS civiliter mortuua, or an alien resident and domiciled abroad." 2. Married woman divorced a mema et thoro.^ ' Ex parte Jones (1881), 18 Ch. D. 109. C. A. " Frazier v. Massey (1860), 14 Ind. 882; Nightingale v. WitUngton (1818), 15 Mass. 272; Cf. Lehel v. Tucher (1867), 8 B. & B. at 833; Ch-ey V. Cooper ("1782), 3 Dougl. 65; Indian Code, Art. 26. "Cannam v. Farmer {li,4St), 3 Exeh. 698; Howe v. Wildes (1852), 34 Me. 566; Cf. Coward v. Hughes (1855), 1 K. & J. 443. *!(!.; Johnson v. Sutherland (1878), 39 Mich. 579; Cf. Lowells. Daniels (1854), 2 Gray (Mass.), 161. ' VTatMns v. Halstead (1849), 2 Sandf. (N. T.) 311; Porterfield v. Butler (lb72), 17 Miss. 165. v. / . Jt J^ Abbott V. Bayley (1827), 6 Pick. (Mass.) 89; M' Arthur v. Bloom (1853), 2 Duer (N Y.), 151. r ' ^Jln^.Vo-S"'?^"'" (^^*2), 4 Met. (Mas,s.) 303. Contra, Lems v. Lee (1824), 3 B. & C. 291. ARTS. 66-67.] CAPACITY AND AUTHORITY. 75 Note. — In equity a married woman is liable on contracts Married wo- charged upon or for the benefit of her separate estate.' En-™*°^ aw ity. abling statutes have been generally passed, removing many of the disabilities of a married woman. Art. 66. When a bill is payable to the order of a Transfer , liy married married woman,, she cannot by her indorsement trans- woman. fer the property therein.^ Note. — But this does not prevent recovery thereon by the in- dorsee against the acceptor, who is estopped to dispute the ca- pacity of the payee to indorse: Art. 312. Hence the acceptor may have to pay the bill twice--to the indorsee, whose title he cannot dispute, and to the husband, who still holds the title.' Exception 1. — -Bill indorsed by married woman under such circumstances as would render her liable on her indorsement. (Art. 66.) Exception 2. — Bill indorsed by married woman as agent for her husband.* iLLUSTKATIOlSr. A bill is payable to the "order of Mrs. C." With the coti- sent of her husband she indorses it, signing her own name. The property in the bill passes by this indorsement.^ Note. — Qu. if in the case given, the husband would not be liable as indorser? See Lindus v. Bradwell (J848), 5 0. B. 583. But see Brown v. 2)o?iweW (1861), 49 Me. at 435. Art. 67. A corporation incurs no liability by Liability of d-i • ,. 1 -n 1 comoany or rawing, indorsing, or accepting a bill, unless express- corporation. ^McHenry v. Baries (1870), 10 L. R. Eq. 88; Cf. London Banh v. Lampriere (.1873), 4 L. R. P. C. at 583-594; Yale v. Dederer (1860), 22 N. Y. 450; Todd v. Lee (1862), 15 Wis. 365. ^ Cf. Smith v. Marsaek (1848), 6 M. G. & S. 488; Savage v. King (1840), 17 Me. 801; TiUinghast v. Holhrook (1862), 7 R. I. 230; Evans V. Secrest (1852), 8 Ind. 545; Art. 98. But Cf. Contra, Hardinav. Cobh (1878), 47 Miss. 599. 'U. at 503; Prescott Bank T. Caverly (1856), 7 Gray (Mass.l, 217. ' * Prince v. Brunatte (1835), 1 Bing. N. C. 435; Cf. Slawson v. Lor- iug (1862), 5 Allen (Mass.), 340. ^ Cotes v. Davis (1808), 1 Camp. 485; Stevens v. Beats (1852), 10 Cush. (Mass.) 291; Hanroeh Bank v. Joy (1856). 41 Me. 568; Moreau V. Branson (1871), 37 Jnd. 195. 76 BILLS OF EXCHANGE. [art. 67. ^om'an' or ^7 *^^ impliedly empowered by its Act of incorpora- corporation. ^-^j^ g^ jq ^^i Explanation. — Capacity of a corporation to bind itself by a bill, is co- extensive with its capacity to contract." - Illustrations. 1. A corporation is chartered to erect a monument. If liable ona given contract, it is liable on a bill properly ac- cepted in pursuance thereof.' 2. A joint stock company is incorporated for the purpose of forming a sociite anonyme abroad for the construction of railways. The directors are empowered by the memorandum and articles of association to do whatever they may from time to time think incidental or conducive to the main object of the company. These terms cover the issue of bills, and such a company is liable on its acceptance.* 3. A corporation chartered to build a railroad, gives its note for materials used in the construction of the road. It is liable thereon.* Aliter, if it accepts for accommodation .to aid another company in constructing its road." Note. — The rule as to the capacity of corporations to con- tract by bill is much more liberal in America than in England, where it is held that, in case of non-trading corporations, the power must be expressly given, or there must be terms in the charter wide enough to include it. In England, a mining com- pany, a cemetery company, a salvage company, a gas company, an alkali works company, and a water works company, have been held non-trading companies.' Of. Art. 78, as to non-trad- ing partnerships. There is this distinction: A non-trading partnership can adopt a bill, but the bill of a corporation laok- 1 Ee Peruvian Fy. Co. (1867), 2 L. E. Ch. 617; Mott v. Hicks (1823), 1 Cow. (N. Y.) 518. 2 Curtis V. Smith (1857), 15 N. Y. at 66; Came v. Srigham (1854), 39 Me. 35. 2 Hayward v. Pilgrim Societi/ (1838), 21 Pick. (Mass.), 270; Cf. Davis v. Building Union (1869). 32 Md. 285. * Re Peruvian By. Co. (1867), 2 L. R. Ch. 617. ° Hardy v. Merriweather (1860), 14 Ind. 203; Hamilton v. R. R. Co. (1857), 9 Ind. 359. Contra, in England, Cf. Bateman v. By. (1866), 1 L. K. C. P. 499. * ' » Smead v. E. R. Co. (1858), 11 Ind. 104 ' Bateman v. Ry., supra, at 505. ARTS. 68-71.] CAPACITT AND AUTHORITY. 77 ing capacity is, as regards the corporation, incurably bad; for a Liability of oontT&ot ultra mres oi a corporation cannot be ratified.' -^nd°°"Pj°j^(," ' the same distinction exists between contracts ultra vires, and contracts executed by an agent of a corporation without au- thority; and moreover the latter become binding in the hands of a bona fide holder for value, but the former can acquire no additional validity by negotiation.^ Query, if the rule in Eng- land as to drawing bills or making notes applies to checks. Is a non-trading corporation liable on the instrument to the bearer of a dishonored check which it has drawn, or is it only liable on the consideration to its immediate obligee? Art. 68. When a bill is payable to the order of a Power of ^ *' ^ corporation corporation, the indorsement of the corporation passes *° '™"°"''- the property therein, though from want of capacity the corporation may not be liable as indorser/ Note. — So, too, bankers may be justified in paying checks out of the funds of a company, where clearly, by the form of the checks, the company would not be liable as drawers if they had not been paid.* Authority, Art. 70. Subject to any exceptions mentioned in General niie. this chapter, bills are governed by the ordinary rules of law relating to principal and agent, and partner- ship. Art. 71. No person is liable as a party to a bill sigri^at,"™^ whose signature is not on it.* iiabiuty. , Illusteations. 1. A., who is agent for X., draws a bil,l in his own name upon ' Martin v. Zelterhach (1869), 88 Cal. at 311; Brown v. Winnisimmet Co. (1865), 11 Allen (Mass.), at 331. Exceptions: Bradley v. Ballard (1870), 55 III. 413; Bissell v. R. R. Co. (1860), 22 N. Y. 289; Stephens V. Bank (1879), 88 Pa. St. 157. " Smead v. R. R. Co. (1858), 11 Ind. 104. 8 Smith V. Johnson (1868), 3 H. & N. 222; Brown v. Donnell (1861), 49 Mb. 421; Of. Arts. 60, 80, 81. * Mahomy v. East Holyford Co. (1875), 7 L. R. H. L. 869 and 884. ^Cf. Fenn v. Harrison (1790), 3 T. R. at 761; Re Adansonia Co. (1874), 43 L. J. Ch. at 734, James, L. J. But see next note. 78 ' BILLS OF EXCHANGE. [art. 71. Signatare B., payable' to C. C. knows that A. is only an agent. A. liability. alone is liable as drawer of this bill. X. is not.^ 2. B. and X. are jointly indebted to C. B. alone makes a note in favor of 0. for the amount of the debt. B. alone is liable as a maker.'' 3. B. makes a note in C.'s favor, signing it " B., agent," or " B., Receiver," or " B., Trustee," etc. 0. knows B. is acting as agent for X. B. alone is liable as maker.' 4. A. draws a bill, signing it "J. A., agent." J. A. alone is liable as drawer. His principal is not.* 5. A. draws a bill on " B., agent," and B. writes across the face, "Accepted, B., agent." B. alone is liable as acceptor.' 6. D. is the holder of a bill indorsed in blank by 0. D. converts C.'s indorsement in blank into a special indorsement to E. and transfers the bill to the latter. D. is not liable as indorser.' Note. — Bills form an exception to the ordinary rule that when a contract is made by an agent in his own name, evi- dence is admissible to charge the undisclosed principal, though not to discharge the agent. A person who has not signed, though riot liable on the instrument, may of course be liable on the consideration: e. g., X. would be so liable in lUust. 2. The distinction is this: In the one case the liability is transferable; in the other it is not; also the onus probandi is shifted. Explanation 1. — The term person includes firm, company and corporation. Illusthations. 1. X,, a partner in a firm who trade as " John Brown," makes a note for |100 in respect of a partnership transaction, signing it as " Brown & Co." He has no authority from his ' Ct. Leadhitter v. Farrow (1816), 5 M. & S. at 350; Ex parte Eayner (1868). 17 W. E. 64; Arnold v. Sprague (1861). 34 Vt. 409. 'Siffkin T. VTalker [ISOd), 2 Gamp. 308. ' Williams v. EolUns (1860). 16 Gray (Mass.), 77; Collins v. Ins. Co. (1867), 15 0. St. 215; lowers v. Briggs, (1875), 79 111. 498. ^PentzY. Stanton (1888), 10 Wend. (N. T.) 271. But see Hichs v. Hinde (1850), 9 Barb. (N. Y.) 528, not liable if principal discloeei to payee. Of. Art. 91, liability of agent to his principal on the bill. ^Slawson v. Loring (1862), 5 Allen (Mass.), 340. » Vincent v. Horlocle (1808), 1 Camp, 442. ART. 71.] CAPACITY AND AUTHORITY. 79 partners to vary the firm style. The firm is not liable on this Signature note, though B. individually is bound by it.' liability. 3. A. is a partner in the firm of " B. & Co." A., in respect of a partnership transaction, draws a bill in his individual name on " B. & Co." It is refused acceptance. A. alone is liable as drawer; his co-partners are not." NoTis. — A certain class of cases seems to form an exception to this Article, as they do not pretend to be in conflict with decisions of the sami court sustainiiior the rule, though it is difficult to see any sound reason for the distinction. Thus, on a bill payable to "0., Cash.," and indorsed " C, Cash.," the bank of which C. is cashier is held liable as indorser.' There is bet- ter reason for holding that in such case the holder is author- ized to write over the indorsement, "For the X. bank," and thus convert it into the proper form of an indorsement of the corporatioa.'' If, in Illust. 1, B.'s partners had authorized the change of style, the altered style would have been pro hac vice the firm style, and binding on them. The firm, too, is bound if the variation in style be immaterial and unintentional.' And if there be not a distinct firm style, it seems a partner may sign the individual names of his co-partners.' Of. Art. 50, Signature of Corporation. Explanation 2. — A persoa is bound by bis signa- ture wbo signs a bill in an assumed or fictitious name adopted as his own.' ^ Faith T. Richmond (1840), 11 A. & E. S39; Kirk v. Blurton (1841), 9 M. & W. 284. ^Nicholson v. Rickets (1860), 29 L. J. Q. B. at 65; Re Adansonia Co. (1874), 43 L. J. Ch. 732, firm composed of fourflrms; Macklinv. Crutcher (1869), 6 Bush (Ky.), 401. ^ Houghton V. Bank (1870), 26 Wis. 663; Bank v. Muskingum Bank (1864), 29 N. Y. 619; Pratt v. Bank (1874), 12 Kans, 570; Garton v. Bank (1876), 34 Mich. 279; Elwell v. Dodge (1861), 33 Barb. (N. Y.) 336 {insurance Corp.). Contra, Bank v. Lyman (1848), 20 Vt. 666. *3ank v. Pntchin Bank (1855), 13 N. Y. 309; Folger v. Chase (1836), 18 Pick. (Mass.) 63. ^Forbes v. Marshall (1855), 11 Exch. 166; Mott v. Hicks (1823), 1 Cow. (N. Y.) 513. As to aeeidental misspelling, see Leonard v. Wilson (1834), 2 Cr. & M. 689; Kirk v. Blurfon (1841), 9 M. & W. 289. 'Kitnerv. Whitlock (1878), 88 111.513; Norton v. Seymour {18il), 16 L. J. C. P. 100. May so sigrn though flrm name, Filley v. Phelps (1847), 18 Conn, at 301; Trowbridge v. Cushman (1836), 24 Pick. (Mass.) ■ 310. 'Of. Lindus v. Bradwell (1848), 5 C. B. at 591;. Bartlett v. Tucker, (1870), 104 Mass. 336; Of. Art. 37, Expl. 2, and Trueman v. Loder (1840), 11 A. & E. at 594. 80 BILLS OF EXCHANGE. [aht. 71. Sisnature IlLUSTBATIONS. essential to > liability. j. John Smith carries on business under the name of "John Brown," or "Brown & Co," or "The London Iron Com- pany." John Smith is liable on a bill drawn, indorsed, or- ac- cepted by him in any of these names.' 2. A principal trades and carries on a business in the name of one of his agents (a clerk). He is liable on a bill accepted by the clerk in his own name in respect of that business, although the clerk in accepting it acted contrary to his private instructions.^ Note. — Cf. Xindley, p. 357. So, too, a firm may .trade un- der its own name in one place, and under the name of one of the partners in another place. His name then becomes the firm name.' Explanation 3. — The signature of a firm is deemed to be the signature of all persons who are partners in the firm, whether working, dormant, or secret;* or who, by holding themselves but as partners, are liable as sucli to third parties.^ Illustrations. 1. X. is a working partner in the firm of "B. & Co." He retires from the firm, but gives no notice of his retirement. He is liable on a bill accepted by the firm subsequent to his re- tirement." 2. B. and C. are secret partners of A., who carries on the business in his own name. He takes a note for the purchase • price of firm property and indorses it away. B. and C. are liable as indorsers.' Note. — It was formerly thought that where two distinct •Cf. Wilde V. Keep (1834), 6 C. & P. 235; Forman v. Jacob (1815), 1, Stark. 47. 'Edmunds v. Bushell (1865), 1 L. R. Q. B. 96; Cf. Melledge v. Boston Iron Co. (1849). 5 Gush, (Mass.) 176; Conro v. Port Henry Iron Co. (1851), 12 Barb. (N. Y.) 2T ; Loci-wood v. Coley (1884). 22 Fed. Rep. 192. 3 Cf. Alliance Bank v. Kearslev (1871). 6 L. R. C. P. at 438. *Pooley V. Driver (1876), 5 L. R. Ch. D. 458; Undley. pp. 355-357. 5 Gurney v. Evans (1858), 27 L. J. Ex. 166: Lindley, pp. 355-357. ^ Davis V. Allen (1849), 3 N. Y. at 172; Lindley, pp. 418-426. ''Mohawk Nat. Bank v. Van Slyck (1883), 29 Hun, 188; Lindley, p. 357. ARTS. 72-73.] CAPACITY AND AVTHOBITY. 81 firms, having one or more partners in common, carried oil Signature business under the same name, each firm was liable on the ulbSityl ^ acceptances of the other to a AoWer for value without notice; see Lindley, 3d ed., 387. But since the case of Yorkshire Banking Go. y.Beatson^ it seems clear that this hard rule is no longer law. Art. 72. It is immaterial bv whose hand a signa- Hand that " BICIIS JTI1~ ture is made, provided there be authority to sign." material. Illusteation. Bill payable to C.'s order, and indorsed in his name. It is proved that C.'s wife had authority to indorse bills for him, and that in this case C.'s name was written by his daughter, in the presence and by the direction of his wife. This is sufficient.' Note. — In the case of a corporation, it is clear that the sig- nature must be by the hand of an agent. Art. 73. An authority to sign bills on behalf of Express au- anothermay be either express (verbal* or written), or nee" Ja?y°' implied from circumstances.^ Illustrations. 1. X., in B.'s presence, and with his assent, indorses a bill in B.'s name. This is to all intents 'and purposes an indorse- ment by B.° 2. "It is shown that X. is in the habit of accepting bills in B.'s name; that B. is aware of it, and duly honors such bills. This is evidence from which an authority to X. to accept bills may be implied.' 3. C, the holder of a bill payable to order, transfers it for value to D. without indorsing it. This is not an authority to D. to indorse it in C.'s name.' ' Yorkshire BanTcing Co. v. Beatson (1880), 5 C. P. D. 109, C. A. ^Lm-d V. Hall (1849), 8 C. B. 627. ^Id.; Cf. Woodlury v. TToorfJury (1866), 47 N. H. 11.- ^ Bight Worthy, etc.. Odd Fellows 'y. First Nat. Bank (1880), 42 Mich. 461 (agent of corporation). ^Preseott v. Flyn (1832), 9 Binff. 19; Cf. Art. 81, Excep. 1. » Lord V. Hall, supra; Handi/side r. Cameron (1859), 21 III. 588. ' Cf. Morris v. Bethell (1869), 5 L. E. C. P. at 51j N. Y. Iron Mine V. Bank.{1818), 39 Mich, at 651-652. « Harrop v. Fisher (1861). 30 L. J. C. P. 283. 6 82 BILLS OF EXCHANGE. Lakt. 74. Express^au- Explanation. — Where an express authority to the necessary. agent must be proved or is relied on, such authority- is to be strictly construed.' Illusteations. 1. An authority to draw bills does not include an authority to indorse them.^ 2. An authority to an agent to receive payment from B. by drawing on him does not authorize the agent to draw a bill payable to his own order.' 3. An authority to draw checks does not authorize draw- ing post-dated checks, which are bills of exchange.* ' 4. An authority to A. to draw bills in B.'s name does not authorize drawing bills in the joint names of A. and B.' 5. An authority to accept a bill does not authorize an ae- ceptanoe for accommodation.' 6. An authority to draw at six months does not authorize drawing at sixty days.' signature per Art. 74. A Signature "per procuration," or in other terms which denote that the signature of the principal is placed on the bill by the hand of an agent, operates as notice that the agent has but a limited authority to sign, and the principal is only bound by such signature to the extent of the actual authority possessed by the agent.' Illusteations. 1. B., who carries on business for himself, and is also in ■ Afwood V. Munnings (1827), 7 B. Sr C. 278 j Of. Fearn v. Filka , (1844), 7 M. & Gr. 513; RossMer v. RossUer (1832), 8 Wend. (N. T.)494. 2 Cf. Prescott v. Flyn (l832), 9 Bing. at 22. » Hogarth v. Wherley (1875), 10 L. R. C. P. 530. *Forster v. Mackreth (1867), 2 L. R. Ex. 163. 'Stainback v. Mead (1854), 11 Grat. (Va.) 281; Bryan v. Berry (1856), eCal. 894. » Wallace v. Banh (1840), 1 Ala. 565; North River Bank v. Aymar (1842), 8 Hill (N. T.), 262. '• Batty V. Carswell (1806), 2 Johns. (N. T.) 48; Newhallv. Dunlop (1887), 14 Me. 180. » Cf. Charles v. Blackwell (1877), 2 L, R. C. P. D. at 159-160, C. A. But see next note. AKT. 75.] ' . CAPACITY AND AVTHORITT. '8S partnership with X., goes abroad; he gives X. an authority to signature per accept bills in his name in respect of his private business. X. accepts a bill in B.'s name in respect of the partnership busi- ness, signing " p.p. X. B." The bill is negotiated. B. is not liable on this acceptance.' 2. By a resolution of the directors, the chairman of a com- pany is authorized to accept bills dravyn by A. against the de- posit of ' securities. He accepts a bill drawn by A., signing per proc. the company, without requiring the deposit of secu- rity. The bill is negotiated to a bona fide holder. The com- pany is liable.^ Note.; — There is perhaps a disposition to narrow the rule in the case of corporations.' In an Irish case* a distinction is drawn between an acceptance signed "J. B. per proc. T. S.," and one signed "For J. B. T. S." The distinction does not seem founded on any very clear principle. The case can be supported on other grounds^ Art. 74 is taken without change from the English work, yet it does not seem to be the true rule in America. Is the mere form in which the agent signs the criterion? Is not rather the real distinction- between a general agent and a special agent? ^ If the party dealing with the agent has notice, either from the form of signature or in any other way, that the agent is acting under a special authority, whether written or oral, he is chargeable with notice of the extent of that authority." But he is not bound to go further and see that the agent is acting in good faith toward his principal. Illustr. 2, $upra. In the case of a general agent, the principal is bound on all contracts within his ostensible authority, though authorized in writing to do certain specified acts only.' Art. 75. A person who, without authority, signs signature pBr the name of another person to a bill, either simply or ^Atieood V. Munnings (18^7), 7 B. & C. 278; Siagg v. Elliott (1862), 12 C. B. N. S. 378. 'Ee Land Credit Co. (.1869), 4 L. R. Ch. 460; and Of. Ex parte Mere- dith (1863), 32 L. J. Ch. 300; North Elver Bank v. Aymar (1842), 3 Hill (N. T.), 262. 'Ee Land Credit Co. (1869), 4 L. R. Oh. at 468. * O'Eeilly V. Eichardson (1865), 17 Jr. Com. L. R, 74; but Cf. Balfour V. Ernest (1859), 28 L. J. C. P. at 176. 'See argument of counsel in Stagg v. Elliott, supra, at S'i5, a,nd at 382, Willea, J. °Cf. North Eiver Bank v. Ay mar, supra; Nixon v. Palmer (1853), 8 N. T. 398; Murdoek v. Mills (1846). 11 Met. (Mass.) at 15. ' Cf . Hartford Lis. Co. v. Wilcox (1870), 57 111. 180; Mivor v. Bank (1828), 4 Pet. (U. S.) 46; Cf. Art. 77. 84" , BILLS OF EXCHANGE. <■ Labt: 76. Signature per bv a procuration signature, is not liable on the in- proc. agent. J r a strument/ unless adopted as his own at the time of signing.' Illusteatioits. 1. A bill drawn on B. is held by C. X., without authority, accepts it for B., signing " B. per proc. X." X. is not liable as acceptor, though he may be liable to C. or a subsequent holder in an action for a false representation.' 2. Two directors of a limited company, which has no power to accept a bill, accept a bill " per proc." the company. They maybe personally liable in an action, for false representation.* Note. — In an action for false representation, under such circumstances, it lies on the holder to prove damage.' The modern tendency is to restrict liability ex delicto to cases of intentional fraud. By German Exchange Law, Art. 95, a per- son who, without authority, signs a bill as agent for another, is personally liable thereon. signature as Art. 76. A person who signs a bill in a represent- agent or repre- . /«? ■ n i i • • • i -i sentative. ative Or omciai character, or who, in signing, describes himself as agent for a principal, whether named or not, is personally liable thereon, unless in express terms he repudiate such liability." ' iLLrSTEATIONS. 1. Money is lent to a parish. The churchwardens give a "T B ) note for the amount, signing it „'/ 5^"' !■ Churchwardens." They are personally liable on the note as makers.' ' PolUll V. Walter (1832), 3 B. & Ad. 114; BartUtt v. Tucher (1870), 104 Mass. 836; Duncan v. Niles (1863),.32 111. 532; Hull v. Crandall (1866), 29 Cal. 567; Walker v. Bank (1852), 13 Barb. (N. T.), 636. Contra, Dodd v. Bishop (1878), 30 La. An. 1178; Weare v. Gove (1862), 44 N. fl. 196; Cf. Byars v. Doores (1855), 20 Mo. 284. ^Cf. Art. 71. Expl. 2; Kelner v. Baxter (1866), 2 L. E. C P. 174; Blanchard v. Kaull (1872), 44 Cal. 440. = PolMll V. Walter (1832), 3 B. & Ad. 114. * West Loiidon Commercial Bank v. Kitson (1884), 13 Q. B. D. 360, C. A.; see at p. 362. ^ Eastwood V. Bain (1858), 3 H. & N. 738. 8 Leadbitter v. Farrow (1816), 5 M. & S. 348; Bradlee v. Boston Glass Co. (1835), 15 Pick. (Mass.') at 550. ' Eeiv V. Pettit (1834), 1 A. & E. 196; Cf. Hays v. Crutcher (1876), 54 ART. 76.] CAPACITY AND AUTHORITY. 85 3. B. by will directs his executor to carry on his business, signature as He does so, and in the course of the business accepts bills, sentatire. signing "J. S., executor of B." He is personally liable on these acceptances.' / 3. D., the holder of a bill payable to his order, dies. X., his executor, indorses the bill away, signing the indorsement, " J. X., executor of D." X. is personally liable on this in- dorsement, unless he add some such words as " without recourse against me personally." ^ 4. Money is lent to the X. Company. A note for the amount is given in the form', " We promise to pay, et cet." signed, "J B ) u t' c ' f Directors o/the X. Company, Limited. "J. T.] Manager." The persons who sign are personally liable as makers.' 5. Note in the form, " We, the directors of the X. Company, Limited, ei cet." (signed by the directors), "J. B. J. S." In the corner of the note is the seal of the company, and the sig- nature of an attesting witness. J. B. and J. S. are personally liable.* 6. A. issues a bill for $100, addressed to the X. Insurance • Co., and ending, " and charge the same to the account of A., Agent X. Ins. Co." A. is' personally liable to the payee as drawer, though known to be acting as agent.' 7. Money is lent to the X. Railway Co. A note for the amount is given in the form, " I promise to pay, et cet." (signed), , "For the X. Railway Co. J. B., Secretary." J. B. is not personally liable.' ' Ind. 260; Powers v. Briggs (1875), 79 111. 493. But see Johnson v. Smith (18o2), 21 Conn. 627. ' Liverpool Hank v. Walker (1859). 4 DeG. & J. 24; Riifenhouse v. Ammerman (18761, 64 Mo. 197; Studehaker Mfg. Co. v. Montgomery (1881), 74.M0. 101; Curtis v. Nat. Bank (1883), 39 0. St. 579. But Cf. Bardy v. Pilchf,r (1879), 57 Miss. 18. 2.Cf. CUlds V. Monins (1821), 2 B. & B. 460. But 'see next note. ^ Courtauld v. Saunders (1867), 16 L. T. N. S. 562; Mellen v. Moore <1878), 68 Me. 390. But Cf. Pitman v. Kintner (1839), 5 Blackf. (Ind.) 250. * Putton V. Marsh (1871), 6 L. R. Q. B. 861. But Cf. Illustr. 12, infra. ^Tucker Manuf. Co. v. Fairhanks (1867), 98 Mass. 101. But see Ma- ker V. Overton (1835), 9 La. (0. S.) 115, and next note. • Alexander. V. Sizer (1869), 4 L. R. Ex. 102; but see Gray v. Paper (1866), IL. R. C. P. 694. 86 BILLS OF EXCHANGE. [abt. 76. Signature as 8. Note in the form, "We jointly and severally promise, e< regentotivef cet." (signed), "J. B. J. S., Agents/or B." J. B. and J. S. are not personally liable.* And the same rule applies if the prom- ise in the body of the note is expressed to be by " J. B., Agent /orB.'" 9. Note in the form, " I, as Treasurer of the X. Society, promise, e^ ceA" (signed), "B., Treasurer." B. is not person- ally liable (probably).' 10. ^ote in the form, " The X. Co. promise, et cet" (signed), " B., President." B. is not personally liable.* 11. Note in the form, f'l protbise, e< cet." (signed) "B., by her trustee, X." X. is not personally liable.^ . 13. A bank check is signed, " B., Treasurer," but having the words "^tna Mills" printed in the margin. B. is not per- sonally liable as drawer.' 13. Bill specially indorsed to " C, agent." He indorses it away, signing " C, agfent." C. is personally liable as in- dorser.' Note.— For further illustrations, Cf. Art. 71 and Art. 37, Exp. 3. The terms agent, manager, etc., attached to a sig- nature, are regarded as mere designatio personcB. The rule is applied with peculiar strictness to bills, because of the non- liability of the principal. Cf. Art. 71. It is often difficult to determine whether a given signature is the signature of the principal by the hand of an agent, or the signature of the agent naming a principal. The maxim ut res magis valeat governs the cofastruction. Where the language is ambiguous, oral evidence is admissible to ascertain the intent of the par- ties.* A distinction is taken by some authorities between an indorsement, " X. agent," and other bill contracts in the same ^Bice V. Gove. (1839), 22 Pick. (Mass.) 158; JeftsY. Yorh{\U%i Cush. (Mass.) 37. 2 Cf. Jones V. Clark (1871), 42 Cal. 180. Contra, Morrell v. Codding (1862), 4 Allen (Mass.) 403. » Barlow v. Cong. Society (1864), 8 Allen (Mass.), 460; Blanehard v. Kaul'l (1872), 44 Cal. 440. But Cf. East Tevn. Co. y. Gaslcell (1879), 2 Lea (Tenn.), 742; Burlingame v. Brewster (1S75), 79 111. 515. *Hall V. Crandall (1866), 29 Cal. 567; Duncan v. mies (1863), 32111. 582; Whitney v. Snow (1873), 111 Mass. 368; Armstrong v. Eirkpat' . rick (1881), 79 Ind. 527. ■ '! ' Taylor V. Shelton (1861), 30 Conn. 122. • Carpenter v. Farnsworth (1871), 106 Mass. 561, ' Bartlett v. Hawley (1876), 120 Mass. 92. But see next note, ' Klosterman v. Loos (1874), 58 Mo. 290; Sanborn v. Meal (I860), 4 Minn. 126, ART. 77.) CAPACITY AND AUTHORITY. 87 form, holding it equivalent to an indorsement sans recours — Signature as a declaration that the indorser -will not be personally liable, rfsentaKm' whoever else maybe.' And the same rule has been applied to a drawer.^ As to the liability of an agent to his principal, see Art. 91, Illusts. 5, 6. Art. 77. A partner in a trading firm has ^Hma Trading firm. facie authority to bind the firm by drawing, indorsing, or accepting bills in the firm name for partnership purposes;' and if the bill get into the hands of a holder for value without notice, the presumption of authority becomes^ absolute, and it is immaterial whether it was given for partnership purposes or not.* Illustrations. 1. X., a partner in a trading firm, makes a note in the firm's name, payable to C, and gives it to him in payment of a pri- vate debt. It lies on C. to show that X. had authority from his copartners so to do.° But the firm would be liable to an indorsee without notice.' 3. X., a partner in a trading firm, makes a note in the firm name, payable to C for his accommodation, or as surety for him, without the knowledge of the other partners. The firm is not liable to G.,' but would be liable to a bona fide holder for value.' 3. A. draws two bills on a firm in respect of one and the J Mott V. Hicks (1823). 1 Cow. (N. Y.) 513. 2 Hicks V. Hinde (1850), 9 Barb.' (N. T.) 528. ' Wiseman r. Easfon {1863). 8 L. T. N. S. 637; Eimhro v. Bullitt (1859). 22 How.(U. S.) 256; Nat. Bank v. McDonald (1879), ,127 Mass. 82; Undh v. Crowley (1883), 29 Eans. 756; Walsh v. Lennon (J881), 98 111. 27; S. C, 38 Am. R.75 (sealed note). * Winship v. Bank (1831) 5 Pet. (U. S.) 529; Wright v. Brosseau (1874), 78 111. 381; Atlnnfic State Bank v. Savery (1880), 82 N. Y. 291; Deitz V. Eegnier (1882), 27 Kans. 94. = Of. Levieson v. Lane (1862), 32 L. J. C. P. 10; Daris v. Cook (1879), 14 Nev. 265; Union Bank v. Underhill (1880), 21 Hun (N. Y.), 178 » Smyth V. Strader (1845), 4 How. (U. S.) 404; Parker v. Burgess (1858),5 R. I. 277. ' Heffron v. Hanaford (1879,) 40 Mich. 805; Sweetser v. French (1848); 2 Gush. (Mass.) 309; Spdrck v. Leonard (1881), 9 Bradw. (111.) 174. ' Austin Y. Vandermark (1843). 4 Hill (N. Y.), 259; Chemung Bank V. Bradner (1871), 44 N. Y. 680. BILLS OF EXCHANGE. [akt. 78. Trading firm. Non-trading flriQ. same debt. By mistake both bills are accepted. The bills are negotiated to bona fide holders. The firm is liable on both.' 4. A partner accepts in the firm name a bill drawn on the firm in respect of a debt partly due from the firm and partly due from himself alone. Fraud is negatived, but the holder knows the facts. The pro tanto liability of the firm on the in- strument is doubtful.^ Note. — In lUust. 4, the safe plan is to sue on the considera- tion. This Art. and the next are merely deductions from the general rule that a partner has implied authority to do any aot necessarily incidental to the proper conduct of the partnership business, and that there the presumption of authority ends. Art. 78. A partner in a non-trading partnership has, prima J'acie no authority to/renderhis copartners liable by signing bills in the partnership name. The holder must show authority, actual or ostensible.' Explanation. — Partnerships, such as professional partnerships (e. g., attorneys,* physicians'), mining partnerships,' agricultural partnerships ' coffee bro- kers,* and commission agencies,' have been held non- trading. Note. — In Marris v. Amery (1865), 1 L. R. C. P. at 154, WiUes, J., points out that the term " trade " is not co-extensive with the term "business." It does not seem to be decided how far the rule applies to checks, as well as to bills and notes. The question can not often arise, because opening an ' Davison v. Robertson (1815), 3 Dow, 218, H. L. 2 Ellston v. Deacon (1866), 2 L. R. C. P. at 21. Cf. Wilson v. Forder (1870), 20 0. St. 89. ^Lindley, p. 280; Dickinson v. Valpy (1829), 10 B. & C. at 137; Thicknesse v. Bromilow (1832), 2 Cr. & J. 425; 'Tappan v. Bailey (1842), 4 Met. (Mass.) '529. * Garland V. Jacomh (1873), 8 L. R. Ex. at 219; Breckenridge v. Shrieve (1836), 4 Dana (Ey.), 375; Smith v. Sloan (1875), 37 Wis. 285. ^Crosthwait v. Boss (1839), 1 Humph. 23. , 'Eick'etts v. Bennett (1847), 4 C. B. at 699; Jones v. Clark (1871), 42 Cal. 180; Cf. Gray v. Ward (1856), 18 111. a2. ' Kimhro v. Bullitt (1859), 20 How. '(U. S.) 256. But Cf. McGregor V. Cleaveland (1830), 5 Wend. (^^. T.) 475. 8 Third Nat. Bank v. Snyder (1881), 10 Mo. App. 211. « Yates V. Dallon (1859),'28 L. J. Ex. 69. ARTS. .79-80.] CAPACITY AND AUTHORITY. , 89 account in the firm name is evidence of actual authority. Non-trading Note that authority to draw checks is not evidence of author- ^"^^ ity to draw bills, and a post-dated check is a bill.' Art. 79. Where a bill is payable to the order of power to trans- a firm, a partner who can not by his indorsement ren- der his copartners liable, may transfer the property therein by negotiating it in the firm name.^ Illusteations. 1, Bill specially indorsed to a non-tr^iding partnership. One of the partners, without communicating with his copartners, in- dorses it away for a firm debt. The property in the bill passes to the indorsee." %. Bill specially indorsed to a firm under a wrong style (e. g., to " Smith, Brown & Co.," whereas the proper style is " Brown & Co."). One of the partners indorses it away, using without the assent of the rest, the wrong style. The firm is not liable on the indorsement, but the property in the bill passes to the indorsee.* NoTB.i — Of. Art. 71 as to the principle. When a bill pay- able to the order of a firm is indorsed by a partner in the firm name, in fraud of his copartners, the property therein does not pass to an indorsee with notice, but there seem to be technical difficulties in the way of an action brought by tha firm.' In such case the proper course (perhaps) is to give notice to the acceptor not to pay. He could defend an action against a holder with notice. Art. 80. When a bill is payable to the order of a Ex-partners. firm, and the partnership is subsequently dissolved, the indorsement of an ex-partner in the late firm name transfers the property therein and authorizes the payment thereof 'Forster v. Mackreth (1867), 2 L. R. Ex. 163. ^Livdley, d. 282; Bredow v. Mut. Sav. Inst. (1859), 28 Mo. 181, and Cf. Arts. 61, 64, 68. *Cf. Smith V. Johnson (1858), 3 H. & N. 222. '■Williamson v. Johnson (1823). 1 B. & C. 146; Kirk v. Blurton (1841), 9 M. & W. at 287. ^Heillutt Y. Nevill (1870), 5 L. R. C. P. 478, Ex. Ch. " King V. Smith (1829), 4 C. & P. 108; Lewis v. EeiUy (1841), 1 Q. B. 90 BILLS OF EXCHANGE. [abt. 81. Ex-partners, NoTB. — Lewis V. JteiUy^ may be open to question in so far as it lays down that an ex-partner by indorsing a bill in the late firm name, renders his former partners liable as indprsers to a holder with notice of the dissolution." Forgery, etc. luHorizeTsig- ^rt. 81. No person is liable as a party to a bill natures. ^hpse signature has been placed thereon without his authority, and no right or title can be derived through a forged or unauthorized signature/ (Cf. Art. 139.) iLLtrsTEATiosrs. 1. A bill is payable to the order of John Smith. Another person of the name of John Smith gets hold of it and indorses it to D., who takes it in good faith and for value. D. acquires ho title to the bill; he cannot enforce payment against any of the parties thereto;* and should any party pay him, the pay- ment is invalid.' 2. A bill is payable to C.'s order. His indorsement is forged. D., a subsequent holder, presents the bill for accept- ance. The drawee accepts it, payable at his bankers'. The bankers pay D. They cannot debit the acceptor with this payment." 3. A bill is payable to the order of a firm. X., one of the partners, fraudulently indorses it in the firm name to D. in payment of a private debt. The acceptor pays D. X. be- 349. Contra, Fellows v. Wyman (1856), 83 N. H. 851; Parherx. Maeomber (1836), 18 Pick. (Mass.) 505; Geortner v. Trustees of Cana- Joharie (1847), 2 Barb. 6-25. ' ^ Lewis V. Reilly, (1841), 1 Q. B. 349. " Cf. Lindley, p. 423; Kilgour v. Finlayson (1789), 1 H. B1. 155; Ahel V. Sutton (1800), 3 Esp. 108; Anderson v. Weston (1840), 6 Bing. N. C. 296. 1 ' Bank of Bengal v. Fagan (1849), 7 Moore P. C. at 72; Harrop v. Fisher (1861), 30 L. J. C. P. 283; Carpenter v. North Bank (1877), 123 Mass. 66; Massi Droit Commercial, § 1529. '■Mead v. Young (1790), 4 T. R. 28. '^Crravesv. American Bank {\%h^), 17 N. Y. 205 (pavment); Welsh v. Bank (1878), 73 N. Y. 424; Cf. Ogden v. Benas (1874),' L. B. 9 C. P. 513. '^EolartS V. Tucker (1851), 16 Q. B. 560, Ex. Ch. ABT. 81.] , CAPACITY AND AUTHORITY. 91 comes bankrupt. X.'s copartners and trustee can recover from rorged or un- D. tlie money hg received on the bill.' natures. 4. 0. specially indorses a bill to D. It is stolen before de- livery to D., and D.'s indorsement in blank is forged on. it. It comes into X.'s hands, and he gets his bankers to present it for payment. They receive payment and credit X. with the amount. X. subsequently draws out the whole sum. 0. can recover the amount of the bill from the bankers.* Exception 1. — An unauthorized signature may be ratified, though it amount to a forgery.' Illustbations. 1. Note for $100. X. forges B.'s signature to it as maker. Before the note matures the holder finds out that B.'s signa- ture is a forgery, and threatens to prosecute X. In order to prevent this, B. gives the holder a memorandum, which says, "I hold myself responsible for the note for $100,. bearing my signature." Th^ ratification is valid, and B. is liable on the note.* Note. — The authorities in England and America are direct- ly in conflict on this point, and cannot be reconciled on the ground of estoppel.* But there dan be no ratification of a forged signature in favor of a party who acts malafide.^ Exception 2. — A person whose signature is .forged or placed on a bill without his authority, may be estopped from setting up the fact. (Cf. Arts. 52 and 73.) ^Heilbutt V. Nevill (1870), 5 L. R. C. P. 478, Ex. Ch.; Gale v. Miller (1874), 54 N. T. 536. 'Arnold v. Cheque Bank (1876), 1 L. R. C. P. D. 578; Cf. Charles v. Blaekwell (1877), 2 L. R. H. L. 200, at 221. 'Greenfield Banh v. Crafts (1862), 4 Allen (Mass.), 447; Gleason v. Henry (1873), 71 111. 109. Contra, Brook v. Hook (l871), 6 L. R. Ex.' 89; Cf. Williams v. Bayley (1866), 1 L. R. H. L. 200 at 221; But Cf. McKenzie v. British Linen Co. (1881), 6 App. Cas. at p. 99, H. L. per Ld. Blackburn. *Cf. Union Bank v. Middlebrook (1865), 33 Conn. 95; Howard v. Duncan (1870), 3 Lans. (N. Y.) 174. Contra, Brook v. Hook (1871), 6 L. R. Ex. 89; Of. Esdaile v. La Name (1835), 1 Y. & C. 894. ' Greenjfield Bank v. Crafts, supra; Gleason v. Henry (1873), 71 111. 109. Contra, Brook v. Hook (1871), 6 L. R. Ex. 89; Cf. Williams v. Bayley (1866), 1, L. R. H. L. 200 -.it 221. 'McHugh V. County (1871), 67 Pa. St. 391. 92 BILLS OF EXCHANGE. [art. 81. Forged or un- IlluSTEATIOS'S. aatborized sig- uatures. j^ -g j^ acceptance to a bill is forged. A holder who takes it bona fide is afterwards informed that the signature is not B.'s, and accordingly writes to inquire. B. writes back to say the signature is his. B. is Jiable on this acceptance.' 3. X., a partner in a trading firm, fraudulently accepts a bill in the fir/n name for a private debt of bis own. It is negotiated to a holder for value without notice. The firm is estopped from setting up X.'s fraud.^ 3. The acceptor of a bill forges A.'s name thereon as drawer, then discounts it with a bank. The bill is dishonored and notice sent to A. The acceptor gets the bill renewed for a small sum, paying the difference in cash to the bank, and on the renewal again forges A.'s name as drawer. The renewed bill is dishonored and notice sent to A. A. does not repudiate the transaction for fourteen days. He is not estopped from setting up that his signature was forged.' Exception 3. — If a bill is payable' to the order of a married woman, as forming part of her separate estate, and her husband forges her indorsement, the property in the bill (probably) passes thereby to a holder who takes it for value and without notice.' Exception 4. — A party to a bill may be estopped by his conduct;^ or, in certain cases, by the fact of , becoming a party,' from setting up that the signa- tures of other parties thereto are forged or unau- thorized. 1 Brooh V. Hooh (1871), 6 L. R. Ex. at 100; Wilhinson v. Stoney (1839), J J. & S. 509; Bobarts v. Tucker (1851). 16 Q. B. at 577; Woodruff v. Munroe (1870), 83jMd. 146; Melvin v. Hodges (1874), 71 111. 422. '^Hogg V. Skeen (1865j, 18 C. B. N. S. at 432, Willes, J.; Parker v. Burge/!s{].8'i8), !^R. 1.211. ' I ^MeKenzie v. BriUsh Linen Co. (1881), 6 Anp. Cas. 82, H. L. ^Dawson v. Prince 1858), 27 L. J. Lh 169, L. JJ. ^Arnold v. Cheque Bank (1876), L. R. 1 C. P. D 578. « Cf. Estoppels, Drawer, Art. 216; Maker, Art. 287; Indorser, Art. 219; Acceptor, Art. 212; Acceptor, supra protest, Art. 228; Fictitious Payee, ■ Art. 139; Fictitious Drawee, Art. 2. ART. 81.] CAPACITY AND AUTHORITY. 93 Note. — Where an estoppel by negligence is relied on, it Forged or un- , must appear that the negligence was the direct and proximate Sature^*^ ''^' cause of the forgery being taken as geniiine.' Where a bill is held under a forged signature, the Court will restrain its negotiation by injunction, or order it to be given up and can-, celed.^ 1 Arnold v. Cheque Bank (1876), L. R. 1 C. P. D. 578. ^ Esdaile v. La Nauee (1835), 1 Y. & C. 394; Joyce on Injunctions, p. 366. CHAPTEE III. CONSIDERATION. Value Defined. Vftiue defined. Art. 82. "Value" means "valuable Consideration," and is constituted by (a.) Any consideration sufficient to support a sim- ple contract. Illusteations. 1. A cross acceptance,' the forbearance of the debt of a third person,^ the compromise of a disputed liability,' a prom- ise to give up a bill thought to be invalid,* a debt barred by the statute of limitations,^ or a debt discharged in bankrjiptcy,' constitutes value. 2. A mere moral obligation,' a debt represented to be due though not really due,' the giving up a void note,' or a volun- tary gift of money," do not constitute value. > Rose V. Sims (1880), 1 B. & Ad. at 526; Cf. ^urdon v. Benton (1847), 9 Q. B. 843; Honllower v. Proud (1819), 2 B. & Aid. 327; Turner v. Rogers (1876), 121 Mass. 12. 2 Balfour V. Sea Assurance Co. (1857). 3 C. B. N. S. 300; Meltser v. Doll (188-3), 91 N. Y. 365; Guf v. Bihend (1871), 41 Cal. 323. 3 Cook V. Wright (1861), 80 L. J. Q. B. 321; Harms v. Aufield (1875), 79 III. 267; Wyatt v. Evins (1875), 62 Ala. 285. * Smith v. Smith (1863), 13 C. B. N. S. 418. ^ Latouche y. Latouehe (1865), 3 H. & C. at 576; Wilton y. Eaton (1879), 127 Mass. 174; Mall v. Van Trees (1875), 50 Cal. 547. ' Trueman v. Fenton (1777), Cowp. 544; Way v. Spm-y (1850), 6 Cush. (Mass.) 238. But Cf. Walhridge v. Harroil (1846), 18 Vt. 448. ' Eastwood V. Kenyan (1840), 11 A. & E. 438: Cf. Flight v. Reed (1863), 3 L. J. Ex. 265. « Southall V. Rigg (1851), 11 C. B. 481. ' Coward v. Hughes (1855), 1 E. & J. 443; TucJcer v. RonJc (1876), 43 la. 80; but Cf. Mather y. Maidstone (1855), 18 C. B. 273, where an es- toppel intervened. '" Hill v. Wilson (1873), 8 L. R. Ch. at 894. (94) AET. 82.1 CONSWEBATION. 95 (b.) An antecedent or pre-existing debt.' vaiuedefluea. Explanation. — When the consideration for the issue or subsequent negotiation of a bill is an antecedent debt, it is immaterial whether the instrument is pay- able on demand or at a future time." Note. — (1.) The bill maybe received in absolute payment,^ that is, in extinguishment of the original debt, e. g., bill in- dorsed without recourse, or transferred by delivery, so that the debtor is not still liable for the debt in another form as in- dorser. In such case, the holder is a holder for value by all the authorities.^ (2.) Or it may be received as conditional paympit only, the usual signification of "payment" as used in the cases, and whether he is then a holder for value or not, depends on the same questions which arise when the bill is taken as collateral security,* as to which, see Art. 84, note. In JEx parte JRichdale,^ the payee of a post-dated check paid it in to his bankers who credited it to his account. The payee failed, and it was held that his trustee could not recover the amount from the drawer on the brxJad ground that as soon as his account was credited with the amount of the check the bankers became holders for value, whether his account was overdrawn or not. It may be doubtful how far this principle could be supported in its generality, or pressed beyond simi- lar facts. / Adequacy of value. — Valuable consideration has been defined as " some right, interest, or benefit accruing to the one party, or some forbearance, detriment, loss, or responsibility! given, suffered or undertaken by the other." ° The Courts do not in- quire into the adequacy of a bona Jide consideration.' But inadequacy of consideration may be evidence of bad faith or • PoiWej- V. JIfom's (1853), 2 B. & B. 89; Swifts. Tyson (1842), 16 Pet. (U. S;) 1; Cf. Butcher v. Stead (1875), 7L. R. H. L. 839. 2 Curriev. Misa (1875), 10 L. R. Ex. Ch. 1.53, approved but affirmed on another ground, 1 L. R. Ap. Ca. 554. Approved in McLean v. Clydes- dale Bankinq Co. (1883), 9 App. Cas. 95. 'Bank v.'GilUlattd (1840), 23 Wend. (N. T.) 311; Heath v. Silver- thorn Co. (1875), 39 Wis. 146; Bardsley v. Delp (1879), 88 Pa. St. 420. * Blanchard v. Stevens (1849), 3 Cush. (Mass.) at 168. But see Fletcher v. Chase (1844), 16 N. H. 38, a.nd Eke v. Biatt (1844), 16 N. H. 116; Roxhorough v. Messich (1856), 6 0. St. 448; Ryan v. Chew (1862), 13 la. 589, drawing distinction in favor of holder of paper as conditional payment. = Ex parte Richdale (1881), 19 Ch. D. 409, C. A. ' Currie v. Misa (1875), 10 L. R. Ex. at 162, per Lush, J. ' Jones V. Gordon (1877), 2 L. E. Ap. Ca. 616, H. L.; Earl v. Peck (1876), 64 N. T. 596. 96 BILLS OF EXCHANGE. [ass. 83. Value defined, fraud.' Again, inadequacy of consideration must be distin- guished from partial absence of consideration (Art. 91), partial failure of consideration (Art. 9-3), part payment on account,^ or a mere advance made on a bill which is pledged or deposited ' as security (Art. 84)." Unconscionable bargains. — Although the adequacy of the value given will not be inquired into where parties contract on an equality, the Court in the exisrcise of its equitable powers will grant relief, as between immediate parties, either with or without terms, when an unfair advantage has been taken of a person's position, though there may be nothing amounting to positive fraud; e. g., in case of a catching bargain, with an ex- pectant heir or reversioner.' Holder for Value without Notice. Holder for Art. 83. If value has at any time been given for a bill, the holder of it is a holder for value as regards, the acceptor and all parties prior to such time.* Illustbations. 1. B. owes C. 150. In order to pay C. A., at B.'s request, draws a bill on B. for $50, in favor of C C; is a holder foi value and can sue A., though A. has received no value.' 3. A. draws a bill on B. payable to his own order. B. tc accommodate A. accepts it. Subsequently A. gives value to B. A. is a holder for value.' Explanation 1. — It is immaterial that the value is given by or to a person who never signed the-instru- ment, or whose signature, has been struck out.' Illxjsteatioks. 1. B. makes a note in favor of C. C. is the treasurer of a loan society, and the consideration for the note is money ad- vanced by the society to B. C. is a holder for value.' ' Jones V. Gordon (1877), 2 L. R. A.p. Ca. 616, H. L.; Gould y. Segee (1856), 5 Duer (N. Y.),'260; Cf. Jllen v. Davis (1850), 20 L. J. Ch. 44? Simon V. Cridland (1862), 5 L. T. N. S. 524; Lay v. Wissman (1873), 36 la. 305. ^Dresser v. Missouri Co- (1876), 93 U. S. 92. = Aylesford v. Morris (1873), L. R. 8 Ch. Ap. 484; Nevill v. Snelling (1880), 15 Ch. D. 679. • i- ' , » * Hunter y. Wilson (1849), 4 Exch. 489; Watson v. Flannagan (1865), 14 Tex. 854. ^ SKI =■ Scott V. Lifford (1808), 1 Camp. 246. « Burdon v. Benton (1847), 9 Q. B. 893. ' Cf. Fairelough v. Pavia (1854), 9 Exch. 690 (signature struck out). ' Lamas v. Bradshaw (1850), 19 L. J. C. P. 273. AKT. 83. J CONSIDERATION. 97 2. 0. the holder of a bill indorses it in blank to D., receiving Holder for no value. D. for value transfers it by delivery to E. E. is a holder for value.' 3. A. at the request of X. draws a bill payable to 0. for X.'s account with C. X.. remits the bill to C. C. is a holder for value. It is imrriaterial that there is no consideration be- tween A. and X., or that the consideration fails.^ 4. S., in the West Indies, is indebted to C. in Paris. In order to pay him S. remits money to X., his correspondent in London, wlio thereupon obtains a bill for the amount, drawn by A. upon Paris, payable to C.'s order. X. remits the bill to C, but fails before he pays A. for it. S. subsequently pays C. C. is a holder for value, and can sue A.^ Note. — In Illust. 4, 0. would be trustee for S. As to the effect of this, Cf. Art. 141. Sale of Sill. — In legal language a bill is said to be sold when it is transferred by delivery without indorsement. Not so in mercantile language. Suppose X. in London wishes to pay 1000 rupees to O. in India. X. goes to A., who has a correspondent in Calcutta, and gets him to draw a bill on Calcutta for Rs. 1000. Usually the bill is drawn payable to C, but sometimes is drawn payable to X., who then indorses it to C. The amount paid by X. to A. for this bill depends on the rate of exchange between London and Calcutta on the day of the transaction. In i-ome trades the custom is for X. to pay A. when he gets the bill; in other trades it is the custom not to pay till the next mail day. Such a transaction is called a sale of the bill by A. to X. X., the buyer, who sends the bill out to India, is called the Remit- ter. As to fixing the rate of exchange at which a bill is to be* sold, see Art. 1.3, Expl. 1. See, too, the judgment of Wood, V. C, explaining the practice of paying for bills partly by cash, partly by bankers' " marginal notes." ^ Explanation 2. — Subject to Art. 84, the fact that the holder of a bill is a creditor of the person from whom he received it does not make such holder a ' Barber v. Richards dSSl), 6 Bxoh. 63; Brummel v. Endera (1868), 18 Gratt. (Va.) at 905. 2 Munrqe v. Bordier (1849), 8 C. B. 862; Watson v.' Russell (1862), 3 B. & S. 34; 5 B. & S. 968. 'Poirier v. Morris (1853), 2 B. & B. 89. * Jeffreys V. Agra Bank (1866), 2 L. E. Eq. 676; Cf. Ex parte Kemp (1874), 9 L. R. Ch. 383. 98 BILLS OF EXCHANGE. [art. 84. Taiu^^°' holder for value unless he received it in respect of his debt.' Explanation 3. — A holder for value may or may not be a honafide holder for value without notice.^ Explanation 4. — The holder of a bill who receives it from g, holder for value, but does not himself give value for it, has all the rights of a holder for value against all parties to the bill except the person from whom he received it. (Cf. Arts. 87 and 134, Expl.2.) Illustration. C, the payee of a bill, holds it for value. He indorses it to D. without value, e. g., by way of gift or for collection. D. is, as regards the drawer and acceptor, a holder for value.' Pledge or lien. Art. 84. A holder who has a lien on a bill, arising either from agreement or by implication of law, is deemed to be a holder for value to the extent of the sum for which he has a lien. Explanation. — A bill is prima facie presumed to, have been negotiated to the holder for value, and not to have been pledged or deposited as collateral se- curity.* s Illustrations. 1. D. holds a bill indorsed in blank as agent for C. D. wrongfully pledges it with E. • E. is a holder for value to the extent of the sum he advanced, and if he took the bill without notice of the fraud, he can retain the bill as against C, the true owner.^ 3. C, the holder of a bill, for $100, deposits it with D. as ^DelaChaumettey.Banh (1829), 9 B. & C. 208; explained by Currie V. Misa fl875), 10 L. R. Ex. at 161, Ex. Ch. ^RapJiaeVY. Bank (1855), 17 C. B. at 172; Cf. Arts. 86. 98. . 3 Milnes v. Dawson (1850), 5 Exch. 948; Cf. Denfon v. Peters (1870) 5, L. R. Q. B. at 477; and Art. 141. * mils V. Parker (1866), 14 L. T. N. S. 107; Re Boys (1870), 10 L. R. Kq. 467; Trustees v. Hill (1861), 12 la. 462. '' Collins Y. Martin (nSl), 1 B. & P. 648. ART. 84.1 CONSIDERATION. 99 security for a running account. At the time the bill matures Pledge or ilea the balance is in O.'s favor, but subsequently the balance turns against him to the extent of $50. D. is a holder for value as to $50.' 3. C, the holder of a bill for $100, indorses it to D. as a pledge for $50. D. is a holder for value as to $50, and this is the sum he can recover if he sues C.^ 4. 0. keeps with his bankers a loan account and a general account. C. indorses to the bank, as collateral security for his loan account, a bill for $1000, and draws against it to the ex- tent of $500. 0. becomes bankrupt, and his general account is overdrawn more than $500. The bank are holders of the bill for full value.' NoTK. — Leaving this Art. as in the English work, the Amer- ican law on this point may be summarized as follows:' The person to whom a bill has been negotiated* (Art. 106) a.s con- ditional payment (Of. Art. 83, n.) or as collateral security, is a holder for value: (1.) If so taken for a debt created at the time of the transfer.' (2.) If so taken for a pre-existing debt, pro- vided there is either an express agreement to extend the time of payment thereof,' or an agreement to that effect implied from the acceptance of the security merely^' or from other cir- cumstances, e.g.,i\ie course of business between the parties and commercial usage of the place,' equality in amount of the security and the debt,' or the surrender of securities,'" or some other consideration." Thus far the authorities are agreed. (3.) If so taken for a pre-existing debt, though there be no ' Attwood V. Crowdie (1816), 1 Stark. 48.3; Cf. Pease v. Hirst (1829), 10 B. & C. 122; Gray v. Seekhnm (1872), 7 L. R. Ch. at 683. . 2 Aftenlnrfiiigh v. Clarke (1858), 27 L. J. Ex. 138. " 'Me European Bank (1872). 8 L. R. Ch. 41. *Hedcies v.iiealy (1860), 9 Barb. (N Y.) 214; Trust Co. v. BanTe (1879), 101 U. S. 68; MeCrum v. Corby (1873), 11 Kans. 464; Terry v. AlHs (1863), 16 Wis. 478. ^Bank v.. Vanderhorst (1865\ .32 N. T. 5-53; Be! Sw^ft v. Tyson (1842), 16 Pet. (U. S.) Ij Broohhjn Ciii/ Ry.'Co. v. Nat. Bank (1880), 102 IT. S. 14; Peacockv. Piirsell (1863) 14 ,C. B. N. S. 728; Fisher v. Fisher (1867), 98 Mass. 303; Manning v. McClure (1865), 36 111. 490; First Nat. Bank v. Beaird (1878), 3 Bradw. (111.) 239; Rohinson v. Smith (1859), 14 Cal. 94; Outhwite v. Porter (1865), 13 Mich. 533; Cobb v. Dotjle (1863), 7 R. I. 550. Con-ra, Bay v. Codding- ton (1821), 5 Johns.' Oh. (N. Y.) 54; Stalker v. McDonald (1843), 6 Hill. (N. Y.) 93; Comsfock v. Hier (1878). 73 N. Y. 269; Roxlorough v. Mes- sick (1856), 6 O.St. 448; Jenkins v. Schaub (1861), 14 Wis. 1; Trustees V. Hill (1861), 12 la. 462; Royer v. Bank (1877), 83 Pa. St. 248; Davis V. Crar-soM (1879), 69 Mo. 609. " Grocer's Bank v. Penfield (1877), 69 N. Y. 502; Maitland v. Bank (1874), 40 Md. 540; Cummings v. Boyd (1877), 83 Pa. St. at 376. Con- tra, Bramhall v. Beckett (1850), 31 Me. 205. ^ Ex parte Twognod (1812), 19 Ves. 229; Re Gomersall (1876), 1 L. E. Oh. D. at 142; Ex parte Sehofield (1879), 12 Oh. D. 3J7, C. A. (Bills indorsed "pejiding discount.") *Id.; Of. Thiedman v. GoUsmidt (1859), 1 DeG. F. & J. at 11; Vinton V. Peck (1866), 14 M ch. 287; Murphy v. Lucns (i877), 58 Ind. 360; Lay v. Wissmnn (1873), 36 la. 305. But see Todd v. Shelbourne (1876), 8 Hun (N. Y.), 510; Holcomb v. Wyckoff\\&n\), 35 N. J. L. 35. ^Beid V. Furniml (1833), 1 Or. & M. 538; Logan v. Cassell (1879), Pa. St. 288; Tooke v. Newman (1874), 75 111. 215; Best v. Crall 180), 23 Kans. 482. ^Peacock -v. Pursell (1863), 14 C. B. N. S. 728. But Of. Westphal V. Ludlow (1881), 6 Fed. Rep. 348. ' Brandao v. Barnett (1846), 3 C. B. at 531, H. L. AHT. 85.] CUN SIDE RATION. lOi business in respect of any balance that may be due from Pledge or such customer.' If the banker knows that the bills do not ^'™" belong to his customer, no lieu can attach.^ A broker who deals in bills has a lien similar to a banker's.' The terms on which securities are deposited may, of course, be such as to create a particular lien to the exclusion of the general lien.* Art. 85. A "bona fide holder for value withoat som fide ^ holder iop notice" is a holder for value who, at the time he be- nSara.^^'"'''"' comes the holder and gives value, is really and truly without notice of any facts which, if known, would defeat his title to the bill.° Illustrations. 1. C, the holder of a bill payable to his order, transfers it to D. for value, but without indorsing it. C. has obtained this bill by fraud, but D. has no notice of this. D. is not a bona fide holder." 2. G., who resides abroad, transmits to D., his agent in Eng- land, a bill for collection. C. has obtained this bill by fraud, but D. does not know it. At the time D. receives the bill, C. is indebted to him on the balance of account. D. is not a bona fide holder for value. He cannot recover on the bill — aliter if 0. had transmitted the bill to D. in payment of his debt.' 3. C. indorses to D. a bill for $100, to be paid for by two instalments of $50. At the time D. gets the bill he pays one instalment. Before D. pays the second instalment, he receives notice that 0. obtained the bill by fraud. D. subsequently pays the second instalment. D. is a bona fide holder to the 'Brandao v. Barnett (1846), 3 C. B. 519; Johnson v. Roharfs (1875), 10 L. R. Ch. 505; Currie v. Misa (1876), 1 L. R. Ap. Ca. at 669, H. L.; Morris v. Preston (1879), 93 111. 215; Of. Wood v. Boylston Nat. Banh (1880), 129 Mass. 358. 'Ex parte Kingston (1871), 6 L. R. Ch. 632. But Cf. Dickerson v. Wason (1872), 47 N. Y. 439. ^ Jones V. Peppercorn (1858), John- 430. *Re Bowes (1886). 33 Ch. D. 586. ^Raphael v. Banh (18-55), 17 0. B. 161; Cf. Whistler v. Forsfer (1863), 14 C. B. N. S. at 258; Art. 86. « Art. 104; Whistler v. Forster (1863), 14 C. B. N. S. at 258; Cf. Trust Co. V. Bank (1879), 101 U. S. 68. 'Z>e la Chaumette v. Bank (1829), 9 B. &C. 208, as explained by Cur- rie V. Misa (1875), 10 L. R. Ex. at 164. Ex. Ch.; and McLean v. Clydes- dale Banking Co. (1883), 9 App. Cas. at 114. 102 BILLS OF EXCHANGE. [aet. 86. BamMe extent of $50 only, and that is the sura he is entitled to recover holder for ^, v ■,, , talue withoat on the bill. notice. ' . Note. — The terms " bona fide holder," " innocent indorsee," etc., are used in the cases as synonymous with " hona fi,de holder for value without notice." The British Code, § 29, has substituted the phrase " holder in due course." The French equivalent, "tiers porteur de bonne foi," i. e., " chird party holder in good faith," well expresses the idea. Notice. ^rt, 86. Notice means actual notice^-*, e., either knowledge of the facts or a suspicion of something wrong, combined withi a wilful disregard of the means of knowledge.^ If, as a fact, a bill is taken for value and without notice, it is immaterial that the holder took it under circumstances which show gross negligence.' Illustration. D., the holder" of a bill indorsed in blank, transfers it to E. for value. B. suspects that D. had obtained the bill by a false representation, and consequently makes no inquiries. As a fact, D. stole the bill. E. is not a bona fide holder; he is af- fected with notice.* Exception. — The fact that a bill is overdue (Art. 134), or that there is an irregularity patent on the face of it (Art. 138), operates as notice. Note.— yes« of bona fides. — This has varied greatly. Pre- vious to 1820 the law was much as at present, but, under the influence of Lord Tenterden, due care and caution was made the test.^ In 1834 the King's Bench held that nothing short of gross negligence could defeat the title of a holder for value.* ^Dresser v. Missouri Co. (1876), 93 U. S. 92; Cf. Httblard v. Chapin (186 L), 2 Allen (Mass.), 328. ^Raphael v. Bank (1855), 17 C. B. at 174; Oakley v. Oodeen (1861), 2 F. & F. at 659; Ee Gomersall (1875), 1 L. R. Oh. D. at 144. ^ Gmdman v. Harvey (1836), 4 A. & E. at 876; Swan y. North British Co. (1863), 2 H. & C at 184, 185; Goodman v. Simonds (18571, 20 How. (U. S.) 343. . ' " * Ct. Jones V. Gordon (1877), 2 L. R. Ap. Ca. at 628, H. L. : Parsons v. J'acifcson (1878). 99 U. S. 434. ' Gill v. CuUtt (1824), 3 B. & C. 466. • Crooh V. Jadis (1834), 5 B. & Ad. 909. AKT. 87.] CONSIDERATION. 10? Two years later. Lord Denman states it as settled. law that bad Notice. faith alone could disentitle a holder for value. Gross negli- gence might be evidence of- bad faith, but vpas not conclusive of it.' This principle has never since been shaken in England, and it seems now finally established in America.^ Principal and Agent. — As regards the parties affected with notice the ordinary rules of law apply to bills. Notice to the principal is notice to the agent, and notice to the agent is no- tice to the principal, subject co this: when the agent is himself a party to a frauds he is not to be taken to have disclosed it to his principal.' Again, when a bill is negotiated to an agent and notice is given to the principal, or liice versa, there must be a, reasonable time for communication.'' Art. 87. A holder who derives his title to a bill Holder eiaim-- 1 1 7 /I 7 1 1 1 <■ -1 .ins; under ima through a bonajide holder tor value without notice.*'«''°i<5«'- has all the rights of such bona fide holder against the acceptor and all prior parties, although he himself may have given no value, and may be affected with notice.' Cf. Arts. 83 (Expl. 4), 134 (Expl. 2). Illusteati o ns. 1. C, a partner in a firm, fraudulently indorses a firm bill to D. in payment of a private debt. F. is cognizant of the fraud, but is not a party to it. D. indorses the bill to E., who takes it for value and without notice. E. indorses it to F. F. acquires E.'s rights. If he gave value to E., he can sue all the partifs to the bill; if he did not give value, he can sue all par- ties except E.° 3. C, by fraud, induces B. to make a note in his favor. C. ' Goodman v. Harvey (183.6), 4 A. & E. at 876; Goodman v. Shnonds (1857), XO How.- (Cr. S.) 343. 'Murray v. Lardner fl864), 2 Wall. (U. S.) 110; Collins w. Gillert (1876), 94 11. S. 758; Farrellv. Lovett- (1878), 68 Me. Si!6; Woi-cester Bankv. Bank (1852), 10 Gush. (Mass.) 488; Chapman v. Base (1874), 56 N. Y. at 140, Howry v. Eppinger (1876), 34 Mich. 29; Johnson v. Way (1875), 27 0. St. 374; Shregvi-s v. AUen (1875), 79 III. 553; Kelley V. Whitney (1878), 45 Wis. 110. Contra, onlv in Tenn., Merritt v. Dun- can (1872), 7 Helsk. 156. ^Ex parte Oriental Bank (1870). 5 L. R. Ch. 358. ♦Cf. Willis V. Bank 0835), 4 A. & E. at 39. '■Ma^ F. Chapman (1847), 16 M. & W. 355 at 861; Masters v. Ibber- , son (1849), 8 C. B. 100: Com'rs v. Clark (1876), 94 U. S. 278; Woodworih v. Huntoon (1865), 40 111. 181; Mowyer v. Cooper (1872), 35 la. 257. " Id. J04 BILLS OF EXCHANGE. {Kri. 88. Holder claim- indorses the note to D., who takes it for value and without JSi holder.*™" notice. Subsequently D. indorses the note for value back to C C. can not sue B.' Immediate and Art. 88. Any defense available against an imme- remote parlies. ,. . .1 i i . , , ■ , i . diate party is available against a remote party who is in privity with, such immediate party. Explanation 1. — "Immediate parties" are parties in direct relation with each other. All other parties are remote. Prima facie, the drawer and the acceptor, the drawer and the payee, the indorser and his in- dorsee, are in direct relation. Illusteations. 1. A. draws a bill on B. payable to C, and delivers it to the latter. B. accepts the bill while in C.'s hands. B. and Care remote parties.^ 2. B. makesa note payable to C. T'rima facie, B. and C. are immediate parties; but if it appear that B. made the note at the request of X., under the belief that he had done some- thing which he had not done, and that X. on his own account delivered the note to C, who gave value and took it without notice, then B. and C. are remote parties;' Aliter if X. had been C.'s agent.* Explanation 2. — Privity is created in all cases by want of consideration, and in some cases by notice; it may also be created by agreement. Note. — (1.) The holder of a bill who has not himself given value is, as regards third parties, deemed to be the agent of the party from whom he received it, whatever their private rela- tions may be.° (3.) Notice creates privity when it is notice of ' Cf . Saiffi/erV. Wisewell (1864), 9 Allen (Mass.), at 42: Calhoun v. ^Wn (1871), 48 Mo. 804. ^RoWnsonv. Reynolds (1841), 2 Q. B. 196, Ex. Ch. 8 Cf. Watson V. Russell (1862), 3 B. & S. 34; Lea v. Cossen (1678), 61 Ala. 312. * Astley V. Johnaon (1860). 5 H. & N. 137. ^ Cf . Fitch V. Jones (1855), 5 E. & B. at 246, and cases cited in Art. 97; also, Lee v. Hayes 11866), 17 Ir. C. L. at 408. ARTS. 89-90.] CONSIDERATION. , 105 defective title in the party from whom the bill is taken, i. "e., immeaiate and notice that he had no right to hold the bill or no right to p9,rt ''^"""^ Vi^Hea. ■with it.' Title to a bill must be distinguished from the right to enforce payment of it against particular parties — e. g., the donee of a bill has a good title though he could not enforce payraen^, against the donor.'' Whenever a bill is held adversely to the true owner, ■and there is privity between the true owner and the de facto holder, a third party, if sued, may set up the Jms tertii? (3.) Again, when a person expressly or impliedly agrees to hold a bill as agent or trustee for another person, he holds it subject to all defenses against the person for whpm he holds, irrespective of the state of accounts between them.* Art. 89. Every party to a bill is prima /acie Presumption deemed to have become a party thereto for value.^ ° ^^^"^' A-ccommodation Bill. Art. 90. " Accommodation bill" means a bill where- Aocommoaa- 01 the acceptor (». e., the principal debtor on the in- p"'^ strument) is substantially a mere surety for some other person who may or may not be a party thereto." "Accommodation party" means a person who has signed a bill as drawer, indorser, or acceptor, without receiving value, and for the purpose of lending his name to some other person, as a means of credit. Illustrations. 1. A. draws a bill on B. B. accepts it to accommodate" A. It is negotiated. This is an accommodation bill.' 3. A. draws and indorses, and B. accepts, a bill for the accommodation of X., who is not a party thereto. A. and B. receive a commission for so doing. This is an accommodation bill.* 'See, e. g.. Arts. 23, 54, 55, 184. 2.See, e. g.. Art. 83, Expl. 4, and Arts. 91, 134, 141. 'See, e. g.. Arts. 55 and 94. * De la Chaumette v. Banh (1829), 9 B. & C. 208, as explained. Cnr- rie. V. Misa (1875), 10 L, E. Ex. at 164, Ex, Ch. = Of. Hatch V. Trayes (1840), 11 A. & E. 702; Foster v. Dawl^ (1-851), . 6 Exoh. at 853; Touinsend v. Derby (1841), 3 Met. 363; Adams v. Adams (1878), 25 Minn. 72. ^ Cf. Oriental Corp. v. Overend (1871), 7 L. R. Ch. at 146, 151; 7 L. E. H. L, at 858; Ex parte European Bank (1871), 7 L. R. Ch. 99. ' Collott V. Haigh (1812), 3 Camp. 281. ' Oriental Corp. v. Overend, supra. 106 BILLS OF EXCHANGE. [abt. 91. Accommoda- tion bill or party. Abfsence of value. ■ 3. A. draws a bill on B. against a running account. B. ac- cepts. This is not an aocommodation bill, although the balance may have been against A. when the bill was drawn or aoceptei^, or payable.' 4. A. draws a bill on B. in favor of C. It appears that B. was indebted to C, and that A. drew the bill to accommodate Bi This is not an accommodation bill, though A. is an accom- modation drawer.^ 5. A. draws a bill on B. B. accepts for value. G., whose name is well known, indorses the bill to give it currency. This is not an accommodation bill, but 0. is an aocommodation in- dbrser.' Explanation, — An accommodation party known to be sucli, may avail himself of aay defense which the person accommodated could have set up.* IlXUSTEATIOIir. B. and X. make a joint and several note payable to 0. B. signs as maker to accommodate X. 0. takes the note knowing this. If C. sue B., B. can set off a debt due from C. to X.' Note. — A bill which is signed by one or more accommo- dation parties is frequently called an accommodation bill, but the deifinition given above is believed to be more strictly cor- rect. The distinction becomes of importanoe when questions arise as to what is or is not a discharge of the bill, e. g., pay- ment by person accommodated, or the giving of time to such person. See, too. Arts. 168, 345. Want of Consideration. Art. 91. Mere absence of consideration, total or partial, is matter of defense against an immediate party or a remote party, who is not a holder for value, but •Ex parte Swan (1R69), 6 L. R. Eq. at 356; Ct Wilks v. Uornhy (1862), 10 W. R. 742; Farmers Bank v. Rafhhone (1852), 26 7t. 19. ^ Scott Y. Lifford (1808), 1 Camp. 246; Cf. Sleigh v. SZei^^i (1850), 5 Eich. 514. 'Cf. Se Nunn (1817), Buc^k. 113. Practice not uncommon in case of foreign billa: See e. g., SocUte GenS.ralev. Bank (1873), 27 L. T. N. S. 849. *■ ' * Beehervaise v. Wight (1872), 7 L. R. C. P. 372, at 377. 'Id. ART. 91.J CONSIDERATION. 107 it is not a defease against a remote party wlio is a Absence of holder for value.' ' Explanation. — An accommodation party is liable to a holder for value, who takes a bill knowing him to be such.^ Illustration's. 1. B., by way of gift, makes a note in favor of 0. C. can- not sue B.' 2. C, tlie holder of a bill for value, indorses it to D. by way of gift. The property in the bill passes to D., but he can- not sue 0.* 3. A. draws a bill on B. for $100. B. accepts it to accom- modate A. A. discounts it with C, who knows that it is an accommodation bill. C. can sue A. or B. for $100;' but if C. instead of discounting it, merely advanced $50 on it, he can only recover $50-° If C. discount the bill, and pledge it with D. for $50, D. can recover $100 from B., and he will hold $50 thereof in trust for C" 4. B. owes A. $50. A. draws a bill on B. for $100. B., to accommodate A., and at his request, accepts it. If A. sue B. he can recover only $50.' 6. 0. is D.'s agent abroad. 0. purchases a bill for D. The bill is made payable to C.'s order, and he indorses it to D. ' Cf. Forman v. Wright (1851), 11 C B. at 492; Nowah v. Excelsior Stone Co. (1875). 78 III. 307; H oolen v. Vankirh (1878), 61 Ind. 497'. ' Scott V. Lifford, (1808), 1 Canio. 246; Strong v. Foster (1855), 17 C. B. at 822; Pettxjy. Cooke (1871), 6 L. R. Q. B. 790; Thompsons. Shepherd [184:1), 12 Met. (Mass.), 311; Winters v. Ins. Co. (1870), 30 la. 172; Cf. Arts. 88, 90. ' HolUday v. Atkinson (1826), 5 B. & C. 501; Cf. Hill v. Buckminster (1827), 5 Pick. (Mass.) 390; Cloyes v. Cloyes (1885),36 Hun,145 (check). * Easton v. Pratchett (1835), 1 C. M. & R. at 808; Cf. Milnes v. Daw- son (1850), 5 Ex. Ch. 948. 'Cf. Mills V.Barber (1836), 1 M. & W. 425; Sturtevant v. Ford (1842), 4 M. & Gr. 101; Fowler v. Strickland (1871), 107 Mass. 552. Contra, Holeman v. Hobson (1847), 8 Huinpb. (Tenia.) 127. "NashY. Brown (1817), cited Chitty, p. 60; Jones y. Hibbert (1817), 2 Stark. 304; Re Gomersall (1875), 1 L. R. Ch. D. at 144; Ex parte Newton (1880), 16 Oh. D. 380, C. A. (proof); Chicopee Bank v. Chapin (1844), 8 Met. (Mass.) at 44. 'Anairev. Hartshorne (1847), 1 Zahr. (N. .1.) 665; Hilton v. Smith (1855), 6 Grav, (Mass.), at 402. 'Darnell v. Williams (1817), 2 Stark. 166. Cf. Thomas v. Thomaa (1859), 7 Wis. 476. 108 BILLS OF EXCHANGE: [ART. 92. Absence of value. Total failure of value. This is done merely for the purpos.e of safe transmission', and not to guarantee the bill. If the bill is dishonoredj C. is not liable to D. as indorser.' 6. A. and G. supply goods to B. A. draws a bill on B. for the price, and indorses it to C. to collect on joint account. If the bill is dishonored, A. is not liable to 0.'' 7. B. accepts a bill drawn by A.j to accommodate him. A. indorses it to C. without receiving value. 0. indorses it to D.i without receiving value. D. car^not recover from B., but it lies on B. to show that neither D. nor any intervening holder was a holder for value.' Failure of Consideration. Art. 92. Total failure of consideration is a de- fense against an immediate party, but it is not a de- fense against a remote party who is a bona fide holder for value without notice.* Illusteations. 1. B. makes a note payable to 0. The only consideration is that C. is to act as B.'s executor. C. dies first. His per- sonal representatives cannot enforce payment against B.' 3. B. authorizes A. to draw on him against bills of lading. A. draws a bill on B. and indorses it to O. with the bill of lad- ing attached. C. gives value to A. B. accepts the bill on re- ceiving from C. the bill of lading. The bill of lading turns out to be a forgery, but C. did not know it when he obtained the acceptances. C. cansueB." 3. A. draws a bill at three months on B., his agent, in favor of C, who agrees to pay therefor in seven days. B. accepts on A.'s account. C. does not pay A. for the bill. C. cannot sue B.' ^Castrique v. Buftegieg (1855), lOMnorP, P. C. 110; Kimmell v. Bitt- ner (1869), 62 Pa. St. 20H; Of. Mn Nunn (1817), Buck. 113. ■'Denton v. Peters (1870), 5 L. K. Q. B. 475. ^ Mills V. Barber (1836), 1 M. & W. 425; Of. Thompson v. Clulley (1836). 1 M. & W. 212. * Robinson v. Reynolds (1841), 2 Q. B. at 211, Ex. Ch.; Aldrich v. Stock-well (1864), 9 Allen (Mass.), 45; as t> what amounts to total fail- ure, Wells V. Hopkins (1839), 5 M. & W. 7; Hooper v. Treffery (1847), 1 i';xch. 17. ^ Solly V. Hinde (1834), 2 Cr. & M. 516. "Robinson v. Reynolds (1841). 2 Q. B. 196, Ex. Ch.; Cf. Craig v. Sih hett (1850), 15, Pa. St. iB^; Leather v. Simpson (1871), 11 L. R.'Eq. 898. ''Astley V. Johnson (1860), 5 H. & N. 137. ' AM. 93.] CONSIDERATION. 109 4. A. draws a bill on B. payable to his own order. B. ac- Total failure oepts. The consideration between A. and B. fails. A. subse- quently indorses the bill for value to C, who knows that the consideration between A. and B. has failed. C. cannot sue B.' Note. —Failure of consideration, it seems, is a defense against a remote holder for value with notice. The reason probably is that it is in the nature of a fraud to negotiate a bill when the holder knows that the consideration on which he re- ceived it has failed.^ But might there not be cases in which it would not be a fraud to do so? Again, qii. as to the effect of failure of consideration after the maturity of the bill, i. e., alter a cause of action has accrued?^ When the consideration for a bill fails, the court will usually restrain its negotiation by in- junction.* Art. 93. Partial failure of consideration is a de- partial failure fense pro tanto against an immediate party when the failure is an ascertained and liquidated amount, but not otherwise.^ It is not a defense against a remote party who is a holder for value." iLLUSTEATIOlSrS. 1. B. accepts a bill for $100 drawn by A. This is the agreed price of goods to be supplied by A. to B. When the goods arrive they are found to be inferior to sample, and worth only $80. , B. retains the goods. If A. sue B. on the bill, this is not a defense pro tanto.'' 3. B. accepts a bill for $100. This is the agreed price of ^ Lloyd V. Davies (1824), 3 L. J. K. B. 88; Cf. Fairclough v. Paria (1854). 9 Ex. Ch. 690 (same principle assumed); Starr v. Torrey (1849), 2 Zabr. (N. J.) 190. i^Cf. OuUs v. Harrison (1854), 10 Ex. Ch. at 579. ^Cf. Watson v. Eussell (1864), 5 B. & S. at 968. *Cf. Patrick v. Harrison (1792), 8 Bro. C. C. 476; Sainbridge v, Hemingway (1865), 12 L. T. N. S. 74. ^ Day V. Nix (1824), 9 Moore, 159; Warwick v. Nairn (18551, 10 Exoh. 762; Davis v. Bean (1874), 114 Mass. 358; Holzworth v. Koch (1875), 26 0. St. 33. Defense though unliquidated, Stacy v. Kemp (1867). 97 Mass. 166; Spalding v. Vandercook (1829), 2 Wend. (N. Y.) 431; Reese v. Gordon (1861), 19CaI. 147; Petersony. Johnson (1867). 22 Wis. 21. And by statute in Colorado; Florida, Georgia, Illinois, Indiana, Iowa, New Ham pshire and Texas. " Archer v. Namford (1822), 3 Stark. 175; Stevens v. Campbell (1861), 13 Wis. 419; Cf. Richards v. Betzer (1870), 53 111. 466. ' Glennie v. Imri (1839), 3 Y. & C. 436. Contra, c^ses supra. 110 BILLS OF EXCHANGE. [art. 94. , Partial failure two bales of cotton to be supplied by A. to B. A. only deliv- of value. ^^^ ^^^ ^^jg_ ^ indorses the bill to (J., his agent, to collect, C. can only recover $50.' ^ 3. B. accepts a bill drawn by A. for $100. This is the agreed price of two bales of cotton to be supplied by A. to B. When the cotton arrives, one bale is found to be inferior to sample and is returned as useless. A. indorses the bill to C. without value. If C. sues B. he can only recover $50, the price of the one bale which is kept.^ Note. — In some cases of partial failure of consideration, the Court would (perhaps) restrain the holder from negotiating the bill after notice.* duress. Fraud or Fvaud Of Duvess. Art. 94. Fraud is a defense against an immediate p^rty and against a remote party who is not a bona fide holder for value without notice.* Explanation 1. — A bill is affected with fraud when the issue or any subsequent negotiation of it is ob- tained by fraud,* or coercion,' or when it is negotiated in breach of faith,' or in fraud of third parties.' Explanation 2. — The holder of a bill subsequent to a fraud, who is not a bona fide holder for value without notice^ cannot enforce payment ' against any 1 Cf. Agra Bank v. Leighton (1866), 2 L. R. Ex. at 64, 65. 2 Id. 8 Cf. Jacohson v. Shatiks (1866), 12 Jur. N. S. 917. * Arts. 85 ahfl 137; Whistler v. Forster (1863), 14 C. B. N. 8. at 258; Fisher Y. Leland (1849), 4 Cush. (Mass.) 456. 5 WienhoU v. Spitta (1813), 3 Camp. 376; Dawes v. Harness (1875). 10 L. R. C. P. 166; Von Windisehv. Klaus (1878), 46 Conn. 4.S3. But no defense if defendant retains any part of the consideratioa, Heafon v. Knowlfon (1876). 53 Ind. 857. ' As to duress, Duncan v. Scott (1807), 1 Camp. 100 {onus probandi)-; Kearns v. Durrell (1857), 6 C. B. 596; Hey sham v. Deft re (1879), 89 Pa. St. 506; Loomis v. Muck (1874), 56 N. Y. 462; Barnes v. Stevens (1878), 62 Ind. 226; Segrum v. Prescott (1879), 69 Me. 376. ' Llo}/d V. Howard (1850), 15 Q. B. 995; Barber yI Richards (1851), 6 Exch. 63; Gage v. Sharp (1867), 24 la. 15; Cf. Art. 55. As to diversion of accommodation paner, Niikerson v. Buger (1879), 76 N. T. 279; Reed Y. Trentman (1876), 58 Ind. 438. ' Jones Y. Gordon (1877). 2 L. R. Ap. Ca. 616, H. L.; Fay y. Fay (1877), 121 Mass. 561; Bnsfinn v. Dreyer (1879), 7 Mo. Ap. 332. ART. 95.] CONSWEBATION. Ill party thereto, neither can he retain the bill against Fraud or ^ •' , ° duress. the true owner. Note. — When the consideration for a. bill is clearly fraudu- lent, and it is in the hands of a party with notice, the Court will order it to be given up at once.^ When only a prima facie case of fraud is made out. the Court will restrain the negotia- tion of the bill for a specified time, in order that the question may be tried.' Where a party sued on a bill sets up the Jw« tertii, e. g., if the acceptor, when sued by an indorsee, sets up that the in- dorsee obtained the bill by fraud from his immediate indorser, it seems the nature of the fraud must also be looked at. If the indorser never intended by his indorsement to pass the property in the bill to the indorsee, th&jus tertii alone is a good defense;* but if the indorser intended to pass the prop- erty in the bill to the indorsee, though he was induced to do so by fraud, it seems the acceptor must go on to show that the indorsee has disaffirmed the transaction;'* for fraud renders a contract voidable, not v^id. Illegal Consideration. Art. 95. Illegality of consideration, total or par- iiiegai oonsia- tia'l," is a defense in toto against an! immediate party or a remote party who is not a bona fide holder for value without notice.' Explanation, — The consideration for a bill is illegal when it is wholly or in part immoral, contrary to public policy, or forbidden under penalties by statute.* ^ Jones V. Gordon (1877), 2 L. R. Ap. Ca. 616, H. L. ; Lloyd v. Howard, (1850), 15 Q. B. 995; Alsager v. Chase (1842), 10 M. & W. 576. ' Joyce on Injunctions, p. 369; and see Jones v. Lane (1829), 3 T. & C. at 293. 8 Id. * Lloyd V. Howard, supra; Barber v. Bichards (1851), 6Exeh. 63. ^ Dawes V. Harness (1875), L. R. 10 C. P. 166. So held in America, Prouty V. Roberts (1850), 6 Cush. (Mass.) 19; Carrier v. Sears (1862), 4 Allen (Mass.), 886. ° PerJcinsY. Cummings (1854), 2 Gray (Mass.), 258; Wisner v. Bard- well (1878), 88 Mich.-278; Widoe v. Webb (1870), 20 0. St. 481. Rule inodifled, Warren v. Chapman (1870), 105 Mass. 87; Doty v. Bank (1865), 16 0. St. 133. Cf. Art. 93. ''Jtayy. Ayling (1851), 16 Q. B. at 431; Scollansv. Fh/nn (1876), 120 Mass. 271; Shirley r. Howard [1810), 53 111.455; Atwood v. Weeden (1879). 12 R. I. 293. « Cf. Fitch Y. Jones (1855). 5 E. and B. 238; Daniel, § 195; Fareirar. Gabell (1879), 89 Pa. St. 89 (stock gambling contract). 112 BILLS OF EXCHANGE. [abt. ! Illegal consid- eration. Bills void by statute. Illustration. Bill to the drawer's order accepted for value. The drawer indorses to C. for an illegal consideration, e. g., to stifle a pros- ecution for felony. 0. can, it seems, sue the acceptor,' but not the drawer. Note. — It is important to notice -whether the consideration was simply illegal or whether it was a consideration which by statute expressly made the bill void.'' Thus, in a recent case a check was held valid in the hands of a hona fide transferee, though given upon a wager as to whether an execution could be collected, the wager being considered void as against public policy, but not as within the statutory prohibition against gam- ing.' Again, an illegal consideration must be distinguished from a merely void consideration.* In America it has been held that if B., for value, make a note pMyal)le to C, and C. for an illegal consideration indorse it to D., then D. can sue B,, though he could not sue C'' Although the party sued may in many instances set up the ^us tertii, the cases cited serve to show that he cannot set up the injuriU tertii as a defense. A proceeding prohibited by statute must be distinguished from a proceeding which is merely unauthorized." Art. 96. When a bill is given for a consideration which by statute expressly makes it void, it is as against the party who gave it void, in the hands of all parties, whether immediate or remote.' Illustration. A. draws a bill on B. payable to his own order. B. accepts it for a consideration, which by statute avoids it. A. indorses it to C, who takes it for value and without notice. C. can sue A.,' but he cannot sue B.' ' Flower v. Sadler (1882), 10 Q. B. D. 572, C. A. 2 Oates V.' Banh (1879), 100 U. S. at 349. 8 Boughner v. Meyer (1879), 5 Ool. 71; S. C, 40 Am. R. 189. * Fitch V. Jones, (1855), 5 E. & B. 238; Belfast Banking Co. v. Doherfy (1879), 4 Ir. L. K. Q. B. D. 124. 5 Armstrong v. Gibson (1872), 31 Wis. 66; Knights v. Putimm ("1825), 3 Pick. (Mass.) at 185. Contra, Nichols v. Fearson (1833), 7 Pet. (U.S.) 103. 6 Re Coltman (1881), 19 Ch. D. 64 C. A. ' ' Edwards v. Dick (1821), 4 B. & Aid. 212; Toione v. Rice (1877), 122 Mass. at 71; Auroras. West (1864). 22 Ind. 88; Eagle v. Kohn (1876), 84 111. 292; Cowing v. Altman (1877), 71 N. Y. 435. ' Id. » Id. ; Eeed v. Wiggins (1862), 13 C. B. N. S. 220. AUT. 97.] CONSIDERATION. 113 Note. — Both in England and America, it is no longer the Biiia void policy of the law to declare a note> expressly void by statute, ^^ statute. and where such statutes exist, a clause is often inserted, saving the rights of an innocent holder. Usury laws still exist in some of the States, but they are becoming obsolete, and questions under such statutes arise less frequently. Presumption of Value. Art. 97. The holder of a bill is prima facie deemed presumption to be a bona fide holder for value without notice;' hvLtbo^fld^m&y . ... shift. if in an action on a bill it is admitted or there is evi- dence'' that the issue or subsequent negotiation of such bill is affected with fraud or illegality, the onus pro- handi as to value is shifted, and the holder is called upon to prove that he is a holder for value.^ , Illustrations. 1. A. draws a bill on B. and indorses it to C. C. sues B. It is shown that B. accepted it for A.'s accommodation. C. is not called on to prove that he gave value; he can recover with- out so doing.* Aliter, if a fraudulent diversion of the paper is shown.' 2'. B. makes a note payable to C. C. indorses it to D., who sues B. If it appears that B. made the note for an illegal con- sideration, D. must prove that he gave value.' 3. The holder of a bill indorses it to D. to get it discounted. D. fraudulently negotiates it to E., who negotiates it to F. F. ^King v. Milsom (1809), 2 Camp. 6; Collins v. Gilbert (1876), 94 U. S. 763; Eoofv. Cook (1876), 81 111. 261; Hall v. Allen (1871), 37 Ind. 541. But this prima facie presumption does not shift the hurden of proof ■which remains on the plaintiff, Delano v. Bartlett (1850), 6 Cijsb. (Mass.) 364; Small v. Clewley (1871), 62 Me. 155; Atlas Bankv. Doyle (1868), 9 R. I. 76. 'Hallv. Featherstone (1858), 3 H. & N. at 286 (evidence to go to aiury). ' Jones Y. Gordon (1877), 2 L. B. Ap. Ca. at 627, 628, H. L.; Conley v. Winsor (1879), 41 Mich. 254; Sistermans v. Field (1857), 9 (jray (Mass ) 331; Sperry v. Spalding (1873), 45 Cal. 544. * Mills V. Barber (1836), 1 M. & W. 425; Harger v. Worrall (1877), 69 N. Y. 370; Dingkam v. Amsinh (1874), 77 Pa. St. 114. But Cf. Merchants Bank v. N. B. Sav. Inst. (1868), 33 N. J. L. 170. ^Nickerson v. Euger (1879), 76 N.>T. 279. '■Bailey v. Biduell (1844), 13 M. & W. 73: Bottomley v. Goldsmith (1877), 36 Mich. 27; Emerson v. Burns (1874), 114 Mass. 348. 8 lU BILLS OF EXCHANGE. [aet. 97. Presumption of value and bona fides may shift sues the acceptor. Evidence is given of D.'s fraud. F. must prove that he is a holder for value.' 4. B. makes a note payable to C, the consideration for which is a wager, i. e., a consideration void by statute, but not prohib- ited under a penalty. C indorses it to D. who sues B. Evi- dence is given of these facts. D. is not called on to prove that he gave value.^ 6. Action against the maker of a note payable to bearer. It is shown to have been stolen from the true owner. It lies on the holder to prove that he gave value.' 6. An acceptance is given in renewal of a bill which turns out to be a forgery. The genuine bill is negotiated, and the holder sues the acceptor. Evidence is given of these faots; It lies on the holder to prove that he is a holder for value.* 7. A partner accepts a bill in the firm's name for a private debt and in fraud of his copartners. The bill is negotiated. The holder sues the firm as acceptors. As soon as it appears that the bill was given for a private debt, the holder is called upon to prove that he is a holder for value." Note. — If the holder show that he is a holder for full value, the defendant must give evidence that the plaintiff took the bill with notice, for the giving of value raises a, presumption oi good faith;' but the plaintiff has the burden of proof that he is a holder for value and in good faith.' In America it is held that if the holder has in good faith given partial value, he may recover pro tanto.^ Probably the same would be held in England. iQf. Smith v. Braine (1851), 16 Q. B. 244; Berry v. Alderman (1853). 14 C. B. 95. ■'Fitch V. Jones (1855), 5 E. & B. 288. . ^ Raphaels. £a«fc (1855), 17 C. B. 161; Eobinson v. Hodgxon (ISJS), 73 Pa. St. 202. Except bank not^s, Wyer v. Bank (1853), 11 Gush. (Mass.) 51. ' * Mather v. Maidstone (1856), 1 C. B. N. S. 273. ' Hogg V. Skeen (1865), 18 C. B. N. S. 426; Bank v. Gilliland (1840), 23 Wend. (N. Y.) 811. « Raphael v. Bank, supra; Murray v. Lardner (1864), 2 Wall. (U. S.) 110; Dalrymple v. Hillenbrand (1875), 62 N. T. 5, 11; Davis v. Bart- lett (1861), 12 0. St. 541. ■> Kellogg v. Curtis (1879), 69 Me. 212; Cf. Jones v. Gordon (1877), 2 L. R. Ap. Ca. at 628; Smith v. Livingston (1873), 111 Mass. 342. 'Holcomh v. Wyckoffil^lQ), 35 N. J. L. 35: Dresser v. Missouri Co. (1876), 93 U.S. 92. CHAPTER IV. TRAisrSFEB. Transmission by Act of Law. Art. 98. If a bill be held by an unmarried woman Marriage. wbo subsequently marries, or if a bill be made pay- able or be indorsed to a married woman, the title thereto vests in the husband, provided he reduce it into pos- session.' Explanation 1. — If the busband dies without hav- ing reduced the bill into possession, the title thereto reverts to the wife if she be alive, and passes to her personal representatives if she dies before her hus- band.' Explanation 2. — During the marriage, the hus- band is for all purposes deemed to be the holder of a bill payable to the order of his wife, whether it was made payable to her before or after the marriage.' Illttstkations. 1. Bill payable to the order of C, a single woman. 0. marries D. C, after marriage, indorses the bill to E. without ' Cf. Fleet V. Perrins (1868), 8 L. R. Q. B. at 541, affirmed 4 L. R. Q. B. 500; Commonwealth v. Manley (1831), 12 Pick. (Mass.) 173. As to ■what is or is not a reduction of bill into possession : Cf. Nash v. Nash (1817), 2 Mad. 133; Sherrington v. Yates (1844), 12-M. & W. 855, esp. at 865, Ex. Ch. ; Hart v, Stephens (1845), 6 Q. B. 937; Scarpelini v. Atche- son (1845), 7 Q. B. at 875-876; Latourette v. Williams (1847). 1 Barb. (N.T.)9. 'Hartv. Stephens, supra; Draper v. Jackson (1820), 16 Mass. 480j Williams on Executors, 7 ed., pp. 848-852. "Cf. McNeilage v. Holloway (1818), 1 B. & Aid. 218. (115) Marriage. BILLS OF EXCHANGE. [aht. Death. her husband's consent. The indorsement is invalid/ but D, could validly indorse the bill, using his own name.^ 3. A note is made payable to the order of C, a married woman. Her husband indorses it iu his own name. This is a valid indorsement.' Note. — When a bill is made payable to the order of a married woman, the husband may sue on it in his own name alone, or if he likes he may join his wife.* When a bill is pay- able to the order of a single woman, who subsequently marries, both husband and wife should join in an action on it; but it has been held that the husband may sue alone'.^ Exception. — Bill forming part of wife's separate estate." Note. — The rules of the common law as to a married woman as stated in this Article, have been materially modified by statutes in most of the American States, conferring upon her all the rights oi&feme sole, except as to contracts with her hus- band. Art. 99. On the death of the holder of a bill the title thereto . passes to his personal representatives (executors or administrators, as the case may be).' Illustkations. 1. C, the holder of a bill payable to' order, dies. His ad- ministrator, as such, can enforce payment of it or indorse it away, using his own name.' 3. C, the holder of a bill payable to order, dies, having ' Connor v. Martin (1746), cited 3 Wils. at 5; Savage v. King (1840), 17 Me. 301. ' y y V / 2 Roberts v. Place (1846), 18 N. H. 183. ^ Mason v. Morgan (1834), 4 N. & M. 46; Cf. Smith v. Marsaoh (1848), 6 C. B. 486 at 503. * Fleet V. Perrins (1868), 3 L. R. Q. B. at 541. * McNeilage v. HoUoway (1818), 1 B. & Aid. 218; but Of. Sherrington I- Yates (1844), 12 "M. & W. at 865, Ex. Ch.; Morse v. Earl (1836), 13 Wend. (N..T.) 271. \Greenv. Carlill (1877), 4 L. R. Ch. D. 882, and Arts. 65, 66; Cf. Art. 81, Excep. 2. J Clark V. ^igournef/ (1846), 17 Conn. 511; Mitchell y. Dickson (1876), oo Ind. 110. ^-.l^^'^J^^?,""' ^- ^*°"^ (1''46), 3 Wils. 1 Ex. Ch.; Makepeace v. Moore (1849), 5 Glim. (111.) 474; Hersey v. Elliot (1878), 67 Me. 526. ARTS. 100-103.] TRANSFER. 117 specifically bequeathed it to X. X. can not sue on it or indorse Death, it away, unless he first obtain an indorsement of the bill to him by C.'s executor.' Note. — An executor or administrator who indorses a bill should, in express terms, exclude personal liability, Gf. Art. 76; and as he is not the agent of the deceased he cannot by his de- livery complete an indorsement written by the latter. He must indorse it de novo; Art. 54. When there are two or more executors, the indorsement of one is probably sufficient to transfer the property in the bill.* Art. 100. Upon the death of a joint payee or in- dorsee of a bill, the title thereto vests at once in the survivor or survivors. Transfer by Assignment. Art. 103. A bill may be transferred by assignment Assignment or sale, subject to the same conditions that would be requisite in the case of an ordinary chose in action. Illusteation. G. is the holder of a note payable to his order. He may transfer his title to D. by a separate writing assigning the note to D.,* or by a voluntary deed constituting a declaration of trust in favor of D.,* or by a written contract of sale." Note. — A bill, is a chattel, therefore it may be sold as a chattel. A bill is a chose in action, therefore it may be as- signed as a chose in action. It is clear that a subsequent title under the law merchant would override a prior title under a ' Crist V. Crist (1849), 1 Cart. (Tnd.) 570. . ' ^ Wheeler y. Wheeler (1828), 9 Cow. (^-. T.) 34; Dwight v. Newell (1854), 15 III. 383. 'Of. Russell V. Swan (1820), 16 Maes, at 316; Allen v. Tate (1881), 58 Miss. 585. * Re Barringfon (1804), 2 Scho. & Lef. 112; Franklin v. Twogood (1865), 18 la. 515; French v. Turner (I860), 15 Ind. 59. ^ Richardson v. Richardson (1867), 3 L. R. Bq. 686; Of. Burrows v. Keays(\%11),m Mieh. 431. ^Sheldon v. Farker (1874), 3 Hun (N. T.), 498. or sale. 118 BILLS OF EXCHANGE. [aet. 104. Assignment sale or assignment according to the general law, e. jf., C, the orsfle. holder of a bill payable to bearer, assigns by deed certain prop- erty, including the bill, to D. C. no longer has any property in the bill, but he holds it, and if he transfer it by delivery to E., who takes it for value and without notice, E.'s title over- rides D.'s.' A non-negotiable note is now generally assignable at law, as it has always been in equity," Bills to order Art. 104. If the holder of a bill payable to order withoutin- transfers it for value without iadorsias; it the trans- "dorsemeut. _ . n action operates as an equitable assignment of the bill.^ The transferee also acquires the right to compel in- dorsement.* Illusteation-s. 1. C, the holder of a bill payable to order, transfers it to D. for value without indorsing it. D. cannot sue the acceptor in his own name, or negotiate the bill by indorsing it to E.' 2. A. draws a bill on B. payable to his own order. B. ac- cepts. A. discounts the bill with C, but by mistake or fraud omits to indorse it. C. indorses the bill in blank in A.'s name, and sues B. G. cannot recover; he had no right to indorse the '■ bill.» 3. 0., the holder of a bill payable to order, transfers it to D. without indorsing it. If C. becomes bankrupt, the Court will compel his trustee in bankruptcy to indorse the bill.' If C. dies, the Court will compel his executor or administrator to indorse.' J Of. Sheldon v. Parker (1874), 3 Hun (N. T.), 493; Aulton v. AtUm (1856), 18 C. B. 249. ^Maxwell v. Goodrum (1850), 10 B. Mon. (Ky.) 286; Parfcireson v. Finch (1873), 45 Ind. 122; Prescott v. Hull (1820), 17 Johns. (N. T.) 284. ' Whistler V. Forster (1863), 14 C. B. N. S. at 258; Ex parte Pike (1879), 40 L. T. N. S. 529; Matteson v. Morris (1879), 40 Mich, at 55; Hadden v. Modkey (1877), 17 Kans. 429; Freund v. Bank (1879), 76 N. T. 352 (check). '■Harrov v. Fisher (1861), 10 C. B. N. S. at 203. Bvles, J. ^Id.; Cunliffe v. Whitehead (1837), 3 Bing. N. C. at 830; Bohinson v. Wilkinson (1878), 38 Mich. 299; Cf. Hull v. Comver (1811), 35 Ind. 372. m.; Hughes v. Nelson (1878), 29 N. J. Eq. at 549. ^Ex parte Mowbray (1820), 1 Jac. & W. 428. Indorsement should negative personal liability: Cf. Art. 76. Indorsement by bankrupt is, it seems, equally good. Ex parte Rhodes (1837), 3 Mont. & Ayr. 217. «Cf. Watkins v. Maule (1820), 2 Jac. & W. 237; Hersey v. Elliot (1878). 67 Me. 526.. AKT. 105.J TRANSFER. 119 4. C, the holder of a bill for $1,000 payable to his order, Bills to order deposits it with D. as security for a debt for $300. C. becomes without in^ „ •!! 1 i^ , • 1 11 -n dor86ineiit. bankrupt. The Court will order O.'s trustee to indorse the bill to D. upon terms.' Explanation. — When indorsement is subsequently obtained, the transfer takes effect as a negotiation (Art. 106) from the time when the indorsement is given, unless it was omitted at the time of transfer, through fraud, accident or mistake. It then takes effect as a negotiation (probably) from the time of the transfer.^ Illustrations. 1. A. draws a bill on B. payable to 0. or order. A. is in- duced to do so by O.'s fraud. 0. transfers the bill to D. for value, but does not indorse it. D. subsequently receives notice of the fraud practiced on A. After this he obtains C.'s in- dorsement. D. cannot recover from A. — he has no better title than C. Aliter if he had obtained O.'s indorse^nent before he had notice of the fraud.' 3. B. makes a note payable to 0. or order. C. transfers it to D. for value without indorsing it. After the note is overdue D. obtains C.'s indorsement. D. holds the note subject to all existing; equities between B. and C* Art. 105. If the holder (Art. 3) of a bill make Donauo mortu . . n t 1 causa. I delivery of it by way of gift in contem,plation of death and die, this is a valid donatio mortis causa. , Illubtkations. 1. C, the holder of a note payable to bearer, hands it to ^ Ex parte Price (1844), 3 Mon. D. D. 586; but Cf. Ex parte Brown (1824), 1 Gl. & J. 407, where a different order was made. 2Cf. Southard v. Porter (1861), 43 N. H. at 380; Hughes Y. Nelson (1878), 29 N. J. Eq., at 549; DaiiieJ. § 745. ' Whistler v. Forster (1863), 14 C. B. N. S. 248; Lancaster Bank v. Taylor (1869), 100 Mass. 18. * Clark v. Whitaker (1871), 50 N. H. 474. Not subject to equities arising since the transfer, Beardw. Dedolph (1871), 29 Wis. 137; Whita- ker V. Kuhn (1879), 52 la. 315. 120 BILLS OF EXCHANGE. [art. 106. Drmaito mortis D. in Contemplation of death. C. dies. The property in the note pas.ses lo U.' 2. 0., the holder of a bill payable to his order, gives it to D. in contemplation of death and dies. The title to the note passes to D.^ 3. B. makes a note payable to C, and hands it to him as a gift in contemplation of death. B. dies. 0. is not entitled to receive the amount out of B.'s estate.' Note. — It is clear that the gift of a bill .or note does not create a debt as against the donor, of. Art. 91;_but is this the principle of a donatio mortis caumf The law as to the gift >of bills and notes made by the donor requires re-consideration.* The recent cases have arisen on checks where the peculiar re- lations of banker and customer complicate the matter; see Art. 263. Transfer by Negotiation. Negotiation Art. 106. " Negotiation^' means the transfer of a bill in the form and manner prescribed by the law merchant with the incidents and privileges annexed- thereby, i. e. — (1.) The transferee can sue all parties to the in- strument in his own name. (2.) The consideration for the transfer is prima facie presumed. (3.) The transferor can under certain conditions give a good title, although he has none himself. (4.) The transferee can further negotiate the bill with the like privileges and incidents. ' Miller V. miler (1735), 3 P. Wms. 356. 2 Veal V. Veal (1859), 27 Beav. 303; Grover v. Grover (1837), 24 Pick. (Maes.) 261; Bates v. Kempton (1856), 7 Gray (Mass.), 382. 3 Tate V. mibert (1793), 4 Bro. U. C. 286; HnlUday v. AtTcinson (1826), 5 B. & C. at 508; Parish v. Sfone (1833), 14 Pick. (Mass.) 198; Cf. Wes- ton V. Hight (1840), 17 Me. 287 (estate not liable on donor's indorse- ment); Smith V. Smith (1879), 30 N. J. Eq. 564. * Cf. Williams on Executors, 7 ed. pp. 778-780. 4BT. 107.] TRANSFER. 121 Note. — See rights of the holder, Arts. 136 to 144. Cf. In- Negotiation dian Code, Art. 14: A bill is negotiated when the holder ^^"°^'^- transfers it to another person " so as to constitute that person the holder thereof." See the negotiation of bills and notes distinguished from the sale of goods by Holroyd, J.,' the assign- ment of a chose in action by WiHes, J.,'' the transfer of shares in a. company by Byles, J.,' and the transfer of an assignable Scotch ibond by Blackburn, J.* Art. 107. Subject to Art. 124 a bill is negotiable what. wus are which in legal effect is payable either to order or to bearer.* Note. — If a bill is expressed to be " negotiable and payable at the X. Bank," its negotiability is not thereby limited; it may be negotiated anywhere.' By the law of Indiana, a note is not negotiable unless made payable at a bank in that State; and the name of the bank must be correctly stated. In an action in the courts of Missouri on a note executed in Indiana, but where it appears that there was no such bank as that named in the note as the place of payment, the assignor of the note is not liable as indorser.' Explanation 1. — In order that a bill may be ne- gotiable it must originally contain express words making it negotiable (Art. 8) ; but when a bill is in its origin negotiable, the absence in an indorsement of words implying power to transfer does not limit the negotiable effect of such indorsement. Illustrations. 1. B. makes a note in the form "pay C," omitting to add the words '' or order." If C. indorse it to D., his indorsement will not operate as a negotiation. The note is not negotiable.' ' Wookey v. Pole (1820), 4 B. & Aid. at 10 (comparing them to money), 2 Whistler v. Forster (1868), 14 C. B. N. S. at 258. 3 Swan V. North British Co. (1863), 2 H. & C. at 184. 185. *Crouchv. Credit Fancier (1873), 8 L. R. Q. B. at 381. B ]^^ at 382 ' « McArthur v. McLeod (1859), 6 Jones L. (N. C.) 475. But Cf. Parker V. MiddUton (1858), 29 Pa. St. 529. ' Stix V. Matthews (1881), 75 Mo. 96. ' PUmlev V. Westleij (1835), 2 Bing. N. C. 249; Whyte v. Heylman (1859), 34 Pa. St. 142v Bui Cf. Art. 248, Excep. 2. Aliter, as to an in- 122 BILLS OF EXCHANGE. \i.-R'ia. 108-9. What bills are 3. A bill is drawn payable to C. or order. C. indorses it to D. thus, " Pay the couteuts to D," omitting to add the words " or order." The bill is negotiable, and D. can negotiate it by indorsing it to E.' Explanation 2. — A bill is payable to bearer which Is {a) expressed to be so payable, or {b) indorsed in blank.' Illustration. C. is the holder of two bills, one drawn payable to 0. or ■ bearer, the other indorsed to him in blank. He transfers .them to D. by merely handing them to him. This is a negotiation of the bills to D. Note. — No particular form of words is necessary to render a bill negotiable, if such was the intention of the parties. Hence, though it is not made to "order" or " bearer" or "as- signs," but merely contains the clause, " This bill is to be nego- tiable," it seems it would be within the rule.' Modes of Negotiation. Modes of ne- Art. 108. There are two modes of negotiation: gotiation. I namely — (a) negotiation by delivery, and {b) nego- tiation by indorsement. The form of the instrument determines which mode is applicable.* jfegotiaiion of Art. 109. A bill, which in legal effect is payable bill payable ,' ° ^ •' to bearer. to bearer, IS negotiated by delivery alpne." Note. — As to what constitutes a delivery, Of. Arts. 53-55. dorsement, Edle v. East India Co- (1761), 2 Burr. 1216; Cf. Goodwinv. Roharts (187S), L. R. 10 Ex. at 857, Ex. Ch. Aa to C.'s liability. Art. 217, n. ' Edie V. East India Co., supra; Leavitt v. Putnam (1850), 3 W. Y. 494; Cf. Goodwin v. Roharts, supra. 2Cf. Arts. 8 and 116. ^Parher v. MiddUton (1858), 29 Pa. St. at 530. But see Carruth v. Walker (1858), 8 Wis. 251; Hosford v. Stone (1877), 6-Neb. 378. 'Cf. Gibson v. Minet (1791), 1 H. Bl. at 606, H. L.j Richards v. Dailif (1872), 34 la. at 429. 'Id.; Art. 107. ARTS. 110-12.] TRANSFER. 123 Explanation. — A bill made or become payable to Negotiation of 1 u 1 ^1-1 T o 1 • . bill payable bearer may be subsequently indorsed, bucn maorse- "> I'earer. ment merely adds the indoi'ser's guarantee, and may at any time be struck out without affecting the nego- tiability of the instrument.' Art. 110. A bill, which in legal effect is payable Negotiation of . .11., a bill payable to order, is negotiated by indorsement. "» °^^^''- Art. 111. "Indorsement" means a writina; on a indorsement defined. bill signed by the holder, ordering the amount to be paid to a person therein designated, or to his order or to bearer. Explanation. — An indorsement must be completed by delivery; and, unless the contrary be expressed, the term " indorsement " means an indorsement com- pleted by delivery.' The. holder who indorses a bill is called an "In- dorser." Any person who makes title to a bill through an indorsement is called an "Indorsee."* Note. — This definition includes only indorsements proper, and not what may be called quasi-indorsements. If a person who is not the holder of a bill backs it with his signature, the liability incurred is not strictly that of an indorser, though such act is commonly termed an indorsement; but it in no way affects the transfer of the bill. His liability is considered, ^os<. Art. 317, n. In France this quasi-indcrsement is termed "Aval " as opposed to " Endossement," and indorsement proper.^ The term "indorsement" used without qualification, includes in- differently an indorsement in blank and a special indorsement.' Art. 112. Every indorsement consists joHma/acie indorsement of two distinct contracts — {a) the present transfer and and an execu-"^ ^ -* tory contract. ' Fairclough. v. Paeia (18.50), 9 Exoh. 690, at 695; Cf. Keene v. Beard (1860), 8 C. B. N. S. at 382; Brush v. Reeves (1803), 3 Johns (N. T.) 489. - 2 Cf. Gibson v. Minet, (1791), 1 H. Bl. 606, H. L.; Crouch v. .Credit Fonder (1873), 8 L. R. Q. B. at 382, and Art. 107. 'Lloyd V. Howard (1850), 15 Q. B. 995; Cf. Arts. 53-55. * Barber v. Richards (1851), 6 Exch. at 65. 'Cf. French Code, Arts. 141-142; Nouauier, §§ 821-886. 124 BILLS OF EXCHANGE. Lart. 113. tory contract Form of '(ndorsemeut. Indorsement negotiation of the bill ; ib) the assumption of a future both, a transfer ' \ / i ^ andanexeeu- contingent liability on the part of the indorser.' tory contract o •' . ^ Explanation. — The liability of the indprser may be limited, negatived, or enlarged without affecting the negotiation of the bill or note Illustration. C. indorses a bill to D. by way of gift. The property in the bill passes to D., but C. is not liable as indorser. Art. 91. Note. — For further illustrations see Arts. 64, 66, 68, 79, and Cf. Art. 61. See, also, Arts. 120, 131, 133. It is important to distinguish the two factors in an indorsement, i. e., the transfer and the indorser's contract, for they are often governed by dif- ferent considerations. The first resembles a contract of sale, the second a contract of guarantee. The first is an executed, the second an executory contract. By the first a jus in retn is transferred, by the second a Jus in personam is created. Art. 113. The mere signature (Art. 49) of the holder constitutes an indorsement, but any form of words may be added from which the intention to in- dorse can be gathered.'' Illustrations. 1. C, the holder of a bill, signs it, and writes thereon, " I hereby assign this draft and all benefit of the money secured thereby to D." This is an indorsement by C.° 3. 0., the holder of a note, signs it and writes thereon, " I hereby assign all my right and title to the within note to D." This is an indorsement, and C. is liable as indorser.* 3. C, the holder of a note, signs it and writes thereon, " I bequeath — Pay the within to D., or his order, at my death," >Cf. Denton v. Peter.t (1870), 5 L. R. Q. B. 475; Sigourney v. Clarhe (1846), 17 Conn. 519; Casirique v. Buffigieg (185.5), 10 Moore, P. C. at 108; Sinker v. Fletcher (1878), 61 Ind. 276. ^Pinhney v. Hall (1690), 1 Ld. Ravm. 175; Partridge v. Dans (1848),. 20 Vt. 499; Merchants' Bank v. Spicer (1831), 6 Wend.- (N. T.) 443; Cutting v. Conklin (1862), 28 111. 506. 'Richards v. Franklin (1840), 9 C. & P. at 225; &. Adams v. Blethen (1877), 66 Me. 19. * Sears v. Lantz {ISIS), 47 la. 658. But see Aniba v. Teomans (1878), 39 Mich. 171, holding such indorsee subject to equities. ABT. 114.] TRANSFER. 125 and gives it to D. This is not an indorsement, but an attempted Form of . ., , I indorsement. testamentary gift.' 4. C, the holder of a note, signs it and writes thereon, "I hereby guarantee the payment of this note," and delivers it to D. This is not an indorsement, but a guaranty.^ Note. — French Code, Art. 137, requires an indorsement to be dated, to state the consideration, and the name of the in- dorsee, and to be to order. By Art. 138, if any of these requisites be wanting, it can only avail as a "procuration." Art. 114. The indorsement must be written on Must be on. 1 1 •11 • 1 /i^ • "le bill- the bill Itself.' Illustrations. 1. An express promise in writing to indorse a bill is not an indorsement.* 3. The assignment of a note by a separate writing is not an indorsement.' JExplanation 1. — An indorsement on the face of a bill is valid." Explanation 2. — When there is no room on a bill for further indorsements, a slip of paper called an "Allonge " may be attached thereto. It becomes pait of the bill, and indorsements may be written theteon.' NoTM. — Some of the foreign codes contain minute provisions to prevent frauds, e. g., that the first indorsement on the allonge ^Mitchell V. Smith (1864), 4 DeG. J. & S. 422. 2 Tuttle V. Bartholomew (1847), 12 Met. (Mass.), 4.52; Trust Co. v. Bank (1879), 101 U. S. 68. Contra, Partridge v. Davis, (1848), 20 Vt. 499; Childs v. Davidson (1865), 38 111. 4.37; Robinson v. Lair (1870), ol la. 9. Cf. Kautzman v. Weirick (1875), 26 0. St. 830 (in effect a . Facultative Indorsement, Art. 121). 'Cf. Gihson v. Minet (1791), 1 H.Bl. at 606; Frenchv. Turner (1860), 15 Ind. 59. But see Banffe v. Flint (1870), 25 Wis. 544. *Cf. Harrop v. Fisher (1861), 10 C. B. N. S. at 204; Haskellv. Mitch- ell (1866), 53 Me. 468. ButCf. Pinnesv. Ely (1846), 4 MoL. (U. Ct.) 173. ^ReBarHngton(180i),2Scho.&Lef.n2; Willis v. Cresey(18A0), 17 Me. 9; Cf. Ex parte Harrison (1789), 2 Brown C. C. 614. Contra, Bange v. Flint (1870), 25 Wis. 544. ^Youngv. Glover (,1857), 3 Jur. N. S. Q. B. 637; Ex parte Yates (1858), 2 DeG. & J. 191; Herring v. WoodhuU (1862), 29 111. 92. '' Ct. Monmohunee Y. Secretary (187i), 13 Bengal L. R. 359; Folger V. Chase (18&&), 18 Pick. (Mass.), 63; German Exchange Law, Art. 11. 126 BILLS. OF EXCHANGE. [arts. 115-16. Must IbS on the bill. Partial in- dorsement. Indorsement in blank. must begin on the bi]l and end' on the allonge; otherwise an allonge might be taken from one bill and stuck on to another; Cf. ITouguier, § 668. Exception.— IwdLOvsement on a " copy " in the case of a foreign Bill of Exchange. NoTB. — As to " copies," see Nougui&r, §§ 208-211, and Ger- man Exchange Law, Arts. 70-72. A "copy " of a bill must be distinguished from the parts of a set; Cf. Art. 35, ante. Art. 115. A Partial indorsement, so as to split the right of action ou a bill, is invalid as a negotiation.' Illustrations. 1. C., the holder of a bill for 8100, indorses it," Pay $50 to D. or order, and $50 to E. or order." This is invalid. Neither D. nor E. can sue or further indorse.' 3. C, the holder of a bill for $100, indorses it, « Pay D. or order $30." This is invalid, unless C. also acknowledge the receipt of $70.» Art. 116. An Indorsement in Blank or General indorsement consists merely of the signature of the indorser without the expression of any further inten- tion.* Illusteation. Bill payable to the order of John Smith. He signs on the back "John Smith." This act is interpreted by the law merchant as an indorsement in blank by John Smith, and op- erates as if he had written: 1. I hereby assign this bill to bearer. 2. I hereby undertake that if this bill be dishonored, . I, on receiving due notice thereof, will indemnify the bearer. 'Cf. IInl])ut V. Semll (1869). 4 L. R. C. P. at 358; Conover v. Earl (1868), 26 la. 169; Groves v. Ruby (l%Qh), 24 Ind. 418; see Nouguier § 665. ^Cf. Heilbutt V. Nevill (1869), 4 L. R. C. P. at 858. But Cf. Flint V. Flint (1863), 6 Allen (Mass.), 34. ■ 'Hawkins v. Ca>-(7« (1699), 1 Ld. Raym. 360; Frank v. KaigUr (1871), 36 Tex. 305. * Cf. German Exchange Law, Art. 12, and indorsement in blank distin- guished from special indorsement; per Wilde, C. J., Harmer v. Steele ARTS. 117-18.] TRANSFER. 127 Note. — Under French Code, Arts. 137-138, an indorsement indorsement in blank merely operates as a "procuration," and not as a ne- *° *° gotiation of the bill.' The indorsee is considered as the agent or " mandataire " of the indorser, and their relations are regu- lated accordingly. If, however, the indorsee has given value, he may convert the blank into a special indorsement. — Nou- guier, §§ 747-760. Explanation. — A bill indorsed in blank is payable to bearer and may be negotiated by delivery alone." Art. 117. A Special or Full indorsement desig- spedai m- nates the person to whom or to whose order the bill is thereby made payable. Illitsteations. 1. « Pay D. or order." %. "Pay to D. & Co.," which in legal effect is "pay D. & Co., or order." ° 3. " Pay to the order of the D. Company," which in legal effect is "pay the D. company or order."* Explanation. — A bill specially indorsed is payable to the indorsee therein designated, and can only be negotiated by his indorsement.* Art. 118. The holder of a bill indorsed in blank convereion of , , , 1 , -, . . 1 blank into may convert such blank indorsement into a special s^ped^in- indorsement by writing over the indorser's signature a direction, ordering the amount of the bill to be paid to himself, or some other person. ° (1849), 4 Exch. at 15; per Parke, B., Robarts v. Tucker (1851), 16Q.B. at 579; and per Erie, C. J., Law v. Parnell (1859), 7 C. B. N. S. at 283. »Cf. Bradlaugh v. De Rin (1870), 5 L. Jl. C. P. 473, Ex. Ch.; Nou^ guier, § 766. 'Peacock v. Rhodes (1781), 2 Dougl. at 636, per Lord Mansfield; Swan V. N. S. Australasian Co. (1863), 2 H. & C. at 184; Curtis v. Sprague (1876), 51 Cai; 239; Morris v. Freston (1879), 93 111. 215. ' Art. 107. *Soares v. Glyn (1845), 8 Q. B. at 34, Ex. Ch.; Art. 8 Expl. 2. ^Harropy. Fisher (1861), 30 L. L. C. P. 283; Surnap v. Cook (1863), 32 111. 168. ■ ^ Clerk V. Pigot (1699). 12 Mod. 193; Cole v. Cushing (1829), 8 Pick. (Mass.), 48; Hance v. Miller (1859), 21 111. 636; Erwin v. Lvnn (1866), 16.0. St. at 545; German Exchange Law, Art. 13; Nouguier, §§ 747-748. 128 BILLS OF EXCHANGE. [akt. 119'. Conversion of Explanation. — The holder who converts a blank blank into . .,., , ii- dora'ment mto.a Special indorsement does not thereby incur the liabilities of an indorser.' Illusthatiost. D. is the holder of a bill indorsed in blank by C. D. writes over C.'s signature " Pay to E. or order," and hands the bill to E. This operates as a special indorsement from C. to E. Blank indcrse- Art. 119. The negotiability of a bill which is orig- byspeoiai. inally payable to bearer, or which has been indorsed in blank, is not restrained by a subsequent special in- dorsement. It is still payable to bearer.^ Explanation. — The special indorser is only liable on his indorsement to such parties as make title through it. Illusteation. C, the payee of a bill, indorses it in blank and transfers it to D. D. specially indorses it to E., or order. E., without in- dorsing it, transfers it to F. Then F. is entitled, as bearer, to receive payment and to sue the drawer, acceptor, and C, but he cannot sue D. or E;* Note. — Striking out Indorsements. The holder may at any time (e. g., at the trial after the plaintiff has finished his case)' strike out any indorsement which is not necessary to his title. The indorser whose indorsement is intentionally struck out, and all indorsers subsequent to him, are discharged from their liabilities; aliter if the indorsement be struck out by mistake.' But holder is not obliged to fill the blank before recovery, Poorman v. Mills (1868), 35 Cal. 118; Of. Palmer v. Bank (1875), 78 III. at 881; Greenough v. Smead (1854), 3 0. St. 415. ' Vincent v. Horloch (1808), 1 Camp. 441, and Art. 72. 2 WalherY. Macdonald (1848), 2 Bxch. 527; Rider v. Taintor (1862), 4 Allen (Mass.), 356; Johnson v. Mitchell (1878), 50 Tex. 212. But see Dudman v. Earl (1878), 49 la. 37, where point seems to have been over- looked. Otherwise now in England, British Code, § 8 (3). nd. and Story, % 201. * Smith V. Clarice (1794), Peake, 225. ^Mat/er v. Jadis (1833), 1 M. & Rob. 247; Cf. Porter v. Cushman (1858), 19 111. at 574; Bank v. Senior (1876), 11 R. I. 876. » Wilkinson v. Johnson (1824), 3 B. & C. 428; Brett v. Marston (1858), 45 Me. 401; Art. 240. Or if not struck out at all, though prior blank indorsement filled up and action brought thereon, Co/e v. Gushing (1829), 8 Pick. (Mass.) 48. < . u \ ' ABT. 120.] TRANSFER. 129 The holder may, in some oases, make title through a person Blank indorse- whose indorsement is struck out.' Indorsements for collection bjf^peoiai.^^ may be struck out by the owner of the bill,* and if the indorser of a bill takes it up or pays it when dishonored, he may strike out his own and all subsequent indorsements, whether blank or special.' Cf. Art. 239. Art. 120. A Qualified indorsement in express Qualified * indorsement. terms limits or negatives the ordinary liability of tlie indorser. It relates only to the indorser's liability, and does not otherwise aflfect the negotiation of a bill so indorsed.* Illitstrations. 1. C, the holder of a bill, indorses it to D. thus: " Pay D. or order without recourse to me," or " Pay D. or order sans re- oours," ^ or " Pay D. or order at his own risk." ° 0. thereby passes his interest to D., but incurs no liability as an indorser. 2. E., the holder of a biil indorses on the back in three successive lines, as follows: " Green & Nichols, .... without recourse .... Asa Perley," sues G. & N. as indorsers. If de- fendants show that " without recourse " was written by them at the time of transfer, E. cannot recover, though ignorant of the fact when he took the bill.' Note. — It is held in America that an indorser " without re- course" is responsible to the same extent that a transferor by delivery is responsible, e. a., where the bill is a forgery.' See Art. 226. ^Fairdough v. Pavia (1854), 9 Exch. at 695; but CI. Bartlett v. Ben- 80)1(1845), 14 M. Si^. 733. ^Dugan v. U. S. (1818), 3 Wheat. (U. S.) 173; Banhof Utica v. Smith (1820), 18 Johns. (N. Y.) 229; Reading v. heardsUy (.1879). 41 Mich. 123. ' Callow V. Lawrence (1814), 3 M. & S. 95; Dolfus v. Frosch (1845), 1 Den. (ISr. T.) 367; Bond v. Storrs (1840), 13 Conn. 412. *Cf. Castrique v. Buttigieg (1855), 10 Moore P. C. 110-112, and 117; Stevenson v. O'Neal (1874), 71 111°. 314; German Exchange Law, Art. 14; Nguguier, §§ 268-270. Qualification must be clear, Fassin v. Huhhard (1874), 55 N. Y. 465. * Goupy V. Harden (1816), 7 Taunt. 163. * Rice V. Stearns (1807), 3 Mass. 224. ' FitcKburg Bank v. Greenwood (1861), 2 illen (Mass.), 434. But Cf. Lawrence v. Dohyns (1860), 30 Mo. 196. 'DumontY. Williamson (1867), 18 0. St. 515; Bannum v. Richard- son (1875), 48 Vt. 508; Watson v. Chesire (1865), 18 la. 202. 130 BILLS OF EXCHANGE. [arts. 121-23. Facultative indorsement'. Indorsement in need. Conditional Indorsement. Art. 121. A Facultative indorsement in express terms waives the duties or enlarges the rights of the holder. It relates only to the indorser's liability, and does not otherwise affect the negotiation of a bill so indorsed. Illustkation. C, the holder of a bill, indorses it to D., adding the words " Notice of dishonor waived." No subsequent party is obliged to give notice of dishonor to C Note. — Notice of dishonor may be waived verbally; afor- tiori, then it may be waived in express terms. If notice of dishonor or other duty of the holder is expressly waived in the body of the bill, it then forms a part of the contract, and is binding on every indorser as well as the drawer;'' and in France a similar construction has been put on the phrase " Retour sans frais " or " Retour sans protet." ' Art. 122. The indorser of a bill of exchange may insert in his indorsement a reference in case of need. (Cf. Art. 7.)* Art. 123. A Conditional indorsement transfers the bill to the indorsee, subject to the fulfilment of a condition therein specified. On the failure of the condition the title to the bill reverts to the indorser.' IlLUSTEATIONS. C, the holder of a bill, indorses it, " Pay D. or order upon my name appearing in the Gazette, as ensign in- any regiment, be- tween the 1st and 64th, if within two months from this date." , The bill is subsequently accepted. D. indorses it to E., who »Cf. Phipson V. Kelner (1818), 4 Camp. 285; Emeryr.Hobson [1813), 62 Me. 578; Arts. 168, cl. 4. 200, cl. 7. 2 Lowrn V. Steele (1866), 27 Ind. 168; Booker v. Moores (1878), 61 Ind. 286; Bryant v. Lord (1872), 19 Minn. 396; Farmers' Bank ofKy. v. J5'm«5' (1880), 78 Ky. 264; Altter, if waived only in the indorsement, Central Bank v. Davis (1837), 19 Pick. (Mass.) 373. Contra, Parshhy V. Heaitfe (1879), 69 Me. 90; S. G., 81 Ana. R. 246. ' Nouguier, § 259. German Exchange Law, Art. 42, is ambiguous. * Cf. Leonard v. WiUon (1834), 2 Cr. & M. 589; and Art. 184. ^ Story, §217; Thomson, p, 185. AET. 128.] TBANSFER. 131 indorses it to F. At maturity F. presents the bill to the acceptor Conditional who pays it, although the condition has not been fulfilled. The payment is invalid, and C. can sue the acceptor on the bill and NoTB. — The validity of a conditional indorsement is perhaps doubtful. Mohertson v. Kensington (1811),' seems to be the only decision on the point either in England or America. The judgment is not given in the report, so the ratio decidendi is not clear. Byles, Chitty, and Story merely say that a condi- tional indorsement is effectual, if the bill be subsequently accepted. In Scares v. Glyn (1845),'' the Exchequer Chamber seem to doubt whether a conditional indorsement could be allowed by the law merchant. No foreign code recognizes a conditional indorsement. Pothier (No. 38) says that the in- dorser in his indorsement must conform to the same conditions as the drawer in his draft. It is continually laid down in the cases that the indorser is a new drawer, though not the drawer of a new bill. Apply this as a test. The drawer, who is in direct relation with the drawee, may not draw a bill condition- ally (Art. 10). Why should the indorser, who is a stranger to the drawee, be allowed to impose a condition which the drawer may not? Again, the payee of a bill must be certain (Art. 9); does not this apply to the indorsee? But under a conditional indorsement the title of the indorsee is defeasible. It is uncer- tain whether the indorser or the indorsee is the person entitled to receive payment. It would be convenient to give effect to a conditional indorsement, as if it were merely restrictive. In that case the indorsee would be entitled to collect the bill irre- spective of the fulfilment of the condition. If the condition were fulfilled he would hold the proceeds on his own account; if it were not he would hold them in trust for the indorser. Though the conditional transfer of a bill gives rise to difficulty, there seems to be no reason why the indorser's liability should not be conditional (Cf. Art. 112). Of. Indian Code, Art. 53, which provides that "the indorser of a negotiable instrument may, by express words in the indorsement, exclude his own liability thereon, or make such liability or the right of the indorsee to receive the amount due thereon, depend upon the happening of a specified event, although such event may never happen." As to the conditional delivery of a bill absolute in form, see ante. Art. 55, ■ Sobertson v. Kensington (1811), 4 Taunt. 30. '^ 8 Q. B. at 80'; Cf. too, Mitchell v. Sniith (1864), 4 DeG., J. & S. 422.' But see Tappan v. Ely (1836), 15 Wend. (N. T.) 362. 132 BILLS OF EXCHANGE. [ABT. 124. Eestrietivein- Art. 124. A KestrictivG indorsement Constitutes the indorsee the holder of the bill, but expresses that he is not the beneficial owner of it. Illustrations. 1. " Pay D. or order for the use of X." ' 2. "Pray pay the money to my use." " 3. " Pay the contents to my servant for my use."' 4. " The within must be credited to D., value in account." * 5. " Pay the contents to my use," or " Pay the contents to the use of X," or " Carry this bill to the credit Oi X." = 6. "Pay D. or order for our use, value received in account."' 7. "Pay D. or order for the account of X."' 8i " Pay D. or order for my use." ' 9. " Pay to the order 0:^ D. & Co., under provision for my note in favor of X." ' 10. " Pay D. & Co. or order for collection." ^o Note. — A "restrictive indorsement" may perhaps be de- fined as ," an indorsement which expresses that it is a mere authority to deal with the bill as directed, and not a transfer of the ownership thereof." Cf. Sritish Code, § 35. Explanation 1. — A ■ statement in an indorsement that the value for it has been furnished by some per- son other than the indorsee does not make it restrict- ive." ' Evans v. Cramlington (1687), 1 Show. 4; 2 Show. 509 Ex. Ch.j Booh V. FraU (1879), 78 N. Y. 371. 2 Cf. Snee v. Prescott (174-3), 1 'Atk. at 249. » Edie V. East India Co. (1761), 2 Burr, at 1227, Wilmot, J. * Ancher v. Bank (1781), 2 Dougl. 637. » Cf. Rice V. Stearns ri807), 8 Mass. at 226; Lee v. Bank (1860), 1 Bond (C. Ct.), 387 at 390! 8 Wilson v. Holmes (1809), 5 Mass. 543. ' Treuttel v. Barandon (1817), 8 Taunt. 100; Blaine v. Bourne (1875), 11 R. I. 119. 8 Sigourney v. Lloyd (1828), 8 B. & C. 622; affirmed, 5 Bing. 525 Ex. Ch. • Wedlake v. Burley (1830), Lloyd & Welsby, 380. ^ Sweeney V. Easter (1863), 1 Wall. (U. S.) 166; Merchants' Nat. Bank v. Hanson (1884), 33 Min. 40; S. C, 53 Am. R. 5; MeeMnies^ Bank v. Valley P. Co. (1877), 4 Mo. Ap. 200; Claflin v. Wilson (1879), 61 la. 15; German Exchangre Law, Art. 17. " Potts V. Reed (1806), 6 Bsp. 57; Murrow v. Stuart (1853), 8 Moore P. C. 267; Of. Art. 10, Expl. 2. ART. 124.] TRANSFER. 133 Illustration. Restrictive in- doisemeiit. Bill is indorsed " Pay D., or order, value in account with X." This is not restrictive. It is in efifect a simple indorsement to D. or order.' Explanation 2. — The mere omission to add words of negotiability to a special indorsement does not make it restrictive. Art. 107. Note. — An indorsement in the form "Pay D. only" is prob- ably restrictive, as being in terms a mere authority to D. to collect. If it appeared that D. was a holder for value, it is doubtful how far the restriction would be operative.'' Under German Exchange Law, Art. 15, if C. indorse a bill " pay D. only," the result is this: D. can still indorse the bill away, but C. is not liable on his indorsement. It is in effect an indorse- ment "without recourse," and not a restrictive indorsement. Explanation 3. — A restrictive indorsement gives the indorsee no power to transfer his rights as indorsee unless it expressly authorize him so to do." iLLtrSTRATION. Bill indorsed, " Pay to D. for my account." D. cannot, by indorsing it to E., authorize E. to collect it. Aliter if the in- dorsement ran, "pay D. or order for my account." Explanation 4. — A restrictive indorsement gives the indorsee the right to collect the bill and to sue any party thereto that his indorser could have sued.* Note. — It has never been attempted to make the payor responsible for the due application of the proceeds by the in- ' Buckley v.-JaeJcson (1868), 3 L. R. Kx. 135. ' Cf. Sdie V. East India Co. (1761), 2 Burr. 1225-1227, per Dennison, J , and Wilmot, J.; Bice v. Stearns (1807), 3 Mass. at 225, Power v. Finnic (1797), 4 Call (Va.), 411. ^ Lloyd v. Sigourney (1829), 5 Bing. at 532. Ex. Ch.; Lee v. Bank (1860), 1 Biss. (0. Ct.) 325; Lawrence v. Fussell. (1875), 77 Pa. St. 460; Cf. PotMer, No. 89; German Exchange Law, Art. 17. * Evans v. Cramlington (1687), 2 Show. 509, Ex. Ch.; Wilson v. Eolmes (1809), 5 Mass. 643; McWilliams v. Bridges (1878), 7 Neb. 419; Cf. German Exchange Law, Art. 17. Contra, under statutes requiring actions to be prosecuted in name of real party in interest, Bock Co. Bank v. Uollister (1875), 21 Minn. 385. 134 BILLS OF EXCHANGE. [art. 124. ReBtrictive In- dorsee, and it is clear that he is not responsible. In the cases doiBement. where the restricted indorsee has sued, the bill has been pay- able to him "or order." Can the omission of these words make any difference?' Explanation 5. — The indorsee, under a restrictive indorsement, may transfer his riglits as indorsee if he be authorized by the terms of the indorsement so to do. In such case, the second and every subsequent indorsee takes the bill with the same rights and sub- ject to the same liabilities as the original restricted indorsee.^ Explanation 6. — When a bill is indorsed restrict- ively, the relation between the indorser and the iu- dorsee is that of principal and agent/ Illustrations. 1. C. indorses a bill " Pay D. or order for my use." D. in- dorses it to, and d^jscounts it with, E. on his own account. E. collects it at maturity. C. can recover the amount of the bill from E.* a. C. indorses a bill " Pay D. or order for the use of X." D. collects the bill at maturity. If he misappropriate the money, X. cannot sue him.' The action must be brought by C 3. 0. indorses a bill " Pay D. or order for account of X." D. is X.'s agent. D. indorses the bill to E., who collects it. X. can sue E. for the amount so received.' 4. A. draws a bill on B., and indorses it to 0. 0. indorses it, " Pay D. or order for my use." The bill is dishonored, and ' Cf. Dehers v. Harriott (1691), 1 Show. 163, when the indorser sued. /iLX''*""^^ "■ ^'^''andon (1817), 8 Taunt. 100; Lloyd v. Sigourney (1829), 5 Bing. at 531 ; Sweeney v. Easter (1863), 1 Wall. (U. §.), 166; Book 7. Pratt (1879), 78 N. T. at 375; German Exchange Law, Art. 17. 'Of. Dehers y. Harriott, supra; Potts v. Peed (1806), 6 Esp. at 59; Wilhams V. HhadboU (1885), 1 U. & E. 529; Biee v. Stearns (1807). 3 Mass. at 225; Blaine v. Bourne (1875), 11 R. I. 119; by analogy, Magulre „ n„jj ,,ocn> nT_ ^, ..„ „ „ . „ "",89-90. 330 " Id. at 332, per VaughanTB. ' " " " "'"""' ' ' Treuttel v. Bafandon (1817), 8 Taunt. 100. If D. had not been X., agent, C. must have brought the action. ART. 125.] TSANSFEM. 135 D. ouesA., the drawer. If A. have any defense against C., Restrictive in- he may set it up against D.' Note.— The restricted indorsee is frequently termed a trus- tee, but he -is only a trustee in the sense that an agent is a trustee.^ German Exchange Law, Art. 17, deals with re- strictive indorsements, and accords with our law, as stated above. In France the mere omission of the statement of the value received makes an indorsement restrictive.' The in- dorsee is then deemed to be the agent or " mandataire " of the indorser. Pothier, Nos. 23 and 80-90, has worked out the re- sults with great clearness. Who May Negotiate a Bill. Art. 125. A bill must be negotiated by the de facto Ds/aeto ° •' "^ holder must holder. The transfer of a bill by any other person negotiate. does not operate as a negotiation of the instrament.' Explanation. — ^,"i)e/ac^o holder " means the person in possession of a genuine bill, to whom it is in terms payable, whether he be lawfully in possession thereof or not. Note. — The term "holder " is used in the cases in different senses. It is generally used to denote the " lawful holder," and as such it is defined in Art. 3. It then includes— (1) the person to whom a bill is in terms payable,and whose title is good against all the world; (3) the person to whom a bill is in terms payable, and who, as against third parties, is entitled to enforce payment — thoughas between himself and his transferor, he is a mere agent or bailee with a defeasible title (e. g., an indorsee for collection). But " holder " is also used to denote an unlaw- ful holder — that is, the person to whom a bill is in terms paya- ble, whose possession is unlawful, bat who nevertheless can give — (a) a valid discharge to a person who pays it in good faith (see Art. 236):^ and (b) a good title to a person who takes it before maturity in good faith and for value (see Art. 137). An unlawful holder must be distinguished from the mere wrongful possessor: e. g., a person holding under a forged in- dorsement, or a person who has stolen a bill payable to order, ' Wilson V. Solmes (1809), 5 Mass. 543. =i Cf. Cook V. Uster (1863). 18 C. B. N. S. at 597, Willes, J. ' Cf. French Code, Art. 138; Nouguier. § 744. * Bolles V. Stearns (1853), 11 Cush. (Muss.), 320. 136 BILLS OF EXCHANGE. [arts. 126-27. Vefado holder must negotiate. who has no rights and can give none. When, then, a proposi- tion is laid down which applies equally to la'vs'ful and unlawful holders, the term de facto holder is used to include both. Blu to bearer. -^^*- ^^^- ^^^ defaoto holder of a bill payable to bearer (Art. 107) is the person in possession of it. Illttsteations. 1. C, the payee of a bill, indorses it in blank and transmits it to D. for some special purpose (e. g., discount or collection). As long as D. retains possession D., and not C, is the defacto holder, and he alone can negotiate it.' 2. 0. is the holder of a note payable to bearer. C. loses it and D. finds it. ' D., and not C., is the defacto holder, and he alone can negotiate it. ^ whomay ne- Art. 127. The de facto holder of a bill payable to gotiate bill to J . ,1 - . i? -J. J ; T order. Order IS the person m possession oi it, and to whose order it is payable. Note. — See, in illustration. Arts. 103, 104. Explanation. — If the person to whose order a bill is meant to be payable is wrongly designated, or if , his name is misspelled, he may negotiate the bill by indorsing it as described.^ Illusteatioits. 1. A bill is indorsed to J. Sraythe. The man's real name is T. Smith. He can validly negotiate the bill by indorsing it as J. Smythe.' 2. John Smith trades as " Brown & Co." A bill is drawn payable to the order of " Brown & Co." He may transfer it by an indorsement " .Tohn Smith," or " Brown & Co." * ^Marston v. Allen fl841), 8 M. & W. at 504. ^ Williamson v. Johnson (1823), 1 B. & C. at 149, Holroyd, J.; SchwHz V. Astley (1836J, 2 Bing. N. C. at 553, Tiadal, C. J.; Of. Chenot v. Lefevre (1846), 3 Gilm. (111.) 6o7. »Id.; Cf. Willis V. Barrett (1816), 2 Stark. 29. ^Bryant v. Eastman (1851), 7 Cush. (Mass.) Ill; Blodgett v. Jack- son (1859), 40 N. H. 21; Cf. Walker v. Macdonald (1848), 2 Exch. 527. But produttion of bill to the order of "John Smith" indorsed "Brown ART. 128.] TRANSFER. 137 Note. — The usual and proper course is for the holder to Who may ne- sign first the name as described or spelled in the bill, and tten frder.^ to put underneath his proper signature— re. g'., in the case giyen the indorsement would be signed, J. Smythe, T. Smith. Exception. — When the title to a bill payable to order is transmitted by act of law, and the person to whom the title is transmitted obtains possession of the bill, he becomes the de facto holder. NoTB. — See transmission by marriage (Art. 98), death (Arts. 99-100). See, also, dissolution of partnership (Art. 80). For an- other exception of doubtful expediency in the case of banking, and perhaps other corporations, see ante. Art. 71, Expl. 1, n.' Art. 128. Where a bill is payable to the order of several payees '■ '' or indorsees. two or more persons who are not partners, all must indorse." Explanation. — One may indorse on behalf of the rest if he have authority so to do/ IlLUSTK ATIO NS. 1. B. accepts a bill payable to the " order of C. and D." D. alone indorses it to E. This is insufficient.' E. cannot sue B.* 2. Bill payable to " the order of C. and D." C. by D.'s authority, indorses it to E. "for self and D." This is suf- ficient. 3. Bill payable to "C. and D. or the order of either." 0. alone indorses it to E. This is sufficient.' & Co." would not be sufficient evidence of title in the holder: Cf. Red- mond V. Stanshwy (1872), 24 Mich. 445. 'See, also, WatervUet Bank v. White 'l%\h), 1 Den. (N. T.) 608; First Nat. Bank v. Hall (1871), 44 N. T. 395. 'Ryhirierv. Feickert (1819), 92 111.305; Lanev. Stacy (18U).8 Allen (Mass.), at 42; Arts. 77 et seq. ''Carvick v. Vickery (1781), 2 Douffl. 652; and Cf. Heilbut v. Nevill (1869), 4 L. R. C. P. at 356, 358, per Willes. J. ' *Id.; Smith v. Whiting (1812), 9 Mass. 334. 'Cf. Watson v. Evans (1863), 32 L. J. Ex. 137. 138 BILLS OF EXCHANGE. [abts. 129-30. To Whom a Bill may be Negotiated. .Certainty as -A.rt. 129. When a bill is specially indorsed, the to indorsee. j^^Qj-ggg j^^yg^ (probably) be designated with the same certainty that is requisite in the case of an orig- inal payee.' Note. — Art. 123 creates the doubt. See the question there discussed. As to payee, see Art. 9. Re-transfer and Art. 130. A bill may be negotiated to any party thereto — i. e., drawer, drawee, acceptor or prior in- dorser, and such party, subject to Art. 238, may re- issue and further negotiate it.' Illustbations. 1. C. is the holder of a bill accepted, by B., payable three months after date. C. can indorse the bill to B., the acceptor, and- B., at any time before maturity, may re-issue, and indorse it to T>? %. A., the drawer of a bill payable to his own order, indorses it to 0. 0. indorses it to D. who indorses it back to A. A. can re-issue the bill and indorse it toE.* Explanation. — When a bill is negotiated back to a party already liable thereon, he cannot sue the inter- mediate parties.^ Illusteations. 1. C, the holder of a bill, indorses it to D. D. indorses it to E., who indorses it back to 0. .C. cannot sue D. or E., for they in turn could sue him as a prior indorser.' But D. andE, 'Cf. PotUer, No. 38; Soares v. Glyn (1845), 8 Q. B. at 30, Ex. Ch.; Murray v. East India Co. (1821), 5 B. & Ad. 204. 'Cf. Finney v. McGregory (1869), 102 Mass. 186; Palmerv. Gardiner (1875), 77 III. 148; German Exchange Law, Art. 10. ' Attenborotigh v. Mackenzie (1856), 25 L. J. Ex. 244; mtte v. Will- iams (1876). 8 S. C. 290. * Of. HuVbard v. Jackson (1827), 4 Bine. 390; Jones v. Broadhurst (1850), 9 C. B. 173. ' Cf. Wilders v. Stevens (1846),15 M. & W. 208, at 212, per Alclerson,B. » Bishop V. Hayward (1791), 4 T. R. 470; Moore v. Cross (1859), 91 N. T. at 228; Palmer v. Whitney (1863), 21 Ind. 58. AKTS. 131-32.] TBANSFEB. 139 have not been discharged, for if G. re-indorse to F., they are Re-ttansfer liable to him as indorsers.' *° ''^' °"*" 2. 0. the holder of a bill, indorses it " without recourse " Jto D., who indorses it to E. E. indorses it back to 0. C. can sue D. and E., for they have no claim against him as a prior iu- dorser.' 3. B., for the accommodation of 0., makes a note in his favor. 0. indorses it to D., vfho discounts it with B., the maker. B. can sue C.° 4. The drawer of a bill indorses it to C, who has previously undertaken to be responsible for the price of goods supplied to the acceptor. C. indorses the bill back to the drawer. The drawer, in his character of indorsee, can sue C, for C. has no remedy over against him.* Note. — The Explanation given above is necessary in order to avoid circuity of action. See further Art. 334, Expl. 2. Time of Negotiation. Art. 131. A bill which is in form complete and Negotiable tin negotiable (Art. 107), may be negotiated at any time until it is discharged.^ Explanation. — The character and incidents of the negotiability of a bill depend on the time at which it is negotiated. Note. — As to the transfer of a bill incomplete in point of form, see Art. 33; as to the issue of a bill by a person other than the maker, Art. 54. Art. 132. Unless the contrary appear on the in- presumption aa strument itself, a bill \& prima facie presumed to have ' West Boston Banh V. Thompson (1878), 124 Mass. at 515. »Cf. Morris v. Wallcer (1850), 15 Q. B. at 594; Calhoun v. Alhin (1871), 48 Mo. at 306. Md. * Wilkinson V. Uniein (1881), 7 Q. B. D. 636, C. A. " Callow V. Lawrence (1814), 3 M.&S.at97; French v. Jwms(1860), 29 Conn. 348; Chapter vii, post. 140 BILLS OF EXCHANGE. [aht. 133. Presumption as been negotiated at its inception,' or at least before ^ ^"^ raatiirity/ but apart from this general rule, there is no presumption as to the exact time of negotiation.' Note. — Circumstances of strong suspicion short of direct evi- dence may rebut the prima facie presumption and make it a question for the jury whether a bill was negotiated beiore or after maturity.* whenwn Art, 133. All bills not payable on demand are deeaeaover- ^g^^^g^ overdue after the expiration of the last day of grace ;= Cf. Art. 20. It is uncertain when a bill of exchange payable on demand and not known to have been dishonored is to be deemed overdue.' Explanation. — A bill payable in instalments is ' deemed overdue in toto, when any instalment is over- due;' but a bill is not deemed overdue from the mer6 ■fact that interest is Overdue.* NoTis.^-A bill of exchange payable on demand is, like a check, ordinarily intended for immediate presentation, and is probably governed by the same rule as to when it is to be deemed overdue.' By the British Code, § 36 (3) it is to be deemed overdue when it appears on the face of it to have been in circulation for an unreasonable length of time — a question of fact. This enactment is probably declaratory merely. As to a note payable on demand, which is a continuing security, see Art. 282. As to a check, Art. 259. Is a transfer on the 1 Good V. Martin (1877), 9S U. S. at 94; Noxon v. DeWolf [}?&%), 10 Gray (Mass.), 343; Clarice v. Johnson (1870), 64 111. 296; HaywarAy. Hunger (mZ), 14 la. 516. ^ Lewis V. Parker (1836), 4 A. &B. 838; Eangerr. Cary (1840), 1 Met. (Mass.), at 363; McDowell v. Goldsmith (1854), 6 Md. 320. 1 Anderson v. Weston (1840), 6 Bing. N. C. 29t). * Bounsall v. Harrison (1836), 1 M. & W. 611. ^Cf. Leftleyy. Mills (1791), 4 T. R. 170; ChamblissY. Matthews (1879), '57 Miss. 806. * See next note. ''Vinton v. King (1862), 4 Allen (Mass.), 562; Fieldy. Tibbetts (186% 57 Me. 358. ^Kelley v. Whitney (1878), 45 Wis. 110; Cromwell v. County of Sac (1877), 96 U. S. 51; Cf. Nat. Bank v. Kirbtj (1871), 108 Mass. 497. Contra, Newell v. Gregg (1868), 51 Barb. 263. 'La Due v. First Nat. Bank (1883), 31 Minn. 33 (bank draft overdue in five months); Cf. Piner v. Clary (1856), 17 B. Mon. (ty). 645. AKT. 134.] TEANSFEB. 141 last day of grace to be deemed a transfer of an ov^erdue bill ? When bill The affirmative has been held in Massachusetts, without re- du&"^ ''^'"' gard to the time of the day when the transfer is made.' But the true test would seem to be this: Was the transfer made before the expiration of the time within which due present- ment to charge an indorser (Art. 163) could be made and be- fore actual dishonor? If so the bill was not overdue when transferred.'' By German Exchange Law, Art. 16, a bill is not deemed to be overdue till the time for protesting it has elapsed. £ill dishonored it/ non-acceptance. — If a person takes a bill before maturity, but with notice that acceptance has been re- fused, it is uncertain how far he takes it subject to equities which would attach to an overdue bill — e. g., fraud, illegality of consideration, etc.° Cf. Art. 191, as to notice of dishonor. Art. 134. The fact that a bill is overdue is equiv- NegotintioD of , ■ , , OTerdue.bill. alent to notice of all facts relating to it. In other respects an overdue bill which has not bfeen discharged is negotiable as if current." Explanation 1. — If there be any fapt relating to a bill, notice of which would disentitle a holder who took the bill before maturity, the existence of sucli fact disentitles a holder who takes the bill after ma- turity irrespective of notice.' Any such disentitling fact is called an "Equity attaching to the bill.'" Illusteations. 1. B., for an illegal consideration, makes a note payable to C. or order. 0. indorses it, when overdue, to D. D. cannot sue B.' • Pine V. Smith (1858), 11 Gray (Mass.) 38; Contra, Continental Nat. Bank v. Townsend (3881), 87 N. T. 8; Cf. Fox v. Bank of Kansas City (1883), 30 Eans. 441. 2 Cf. Crosby V. Grant (1858), 36 N. H. at 277. ^Cf. Andrews v. Pond (1839), 13 Pet. (IT. S.), at 79. *Brown v. Davies (1789), 3 T. R. at 82, Bullesr, J.; Cripps v. Davis -, (1843), 12 M. & E. at 165, Parke, B. ^Leavitt v. Putnam (1850), 3 N. T. at 497; Nat. Bank v. Texas (1873), 20 Wall. (U. S.) 72; McSherry v. Brooks (1876), 46 Md. at 118. ^O'Keefe v. Dunn (1815), 6 Taunt, at 310 and 315; Lloyd v. Howard (1850), 15 Q. B. at 998. 'Cf. Deuiers v. Townsend (1864), 33 L. J. Q. B. at 304, Blackburn, J. 'Amory v. Merewether (1824), 2 B. & C. 573; Kittle v. De Lamater (1874), 3 Neb. 325. X42 BILLS OF EXCHANaE. [aht. 134. Negotiation of 2. A draws a bill on B. payable to his own order. B. ae- overdue bill, ggp^g ^{jg \y\\[ subject to a certain condition then verbally agreed on. A. indorses the bill, when overdue, to C. C. takes the bill, subject to the aforesaid condition, although he had no actual notice of it.' Explanation 2. — If the holder who held the bill at its maturity had a gobd title, the fact that a previous holder had a defective title is immaterial.' (Cf. Art. 87.) Illustration. B., for an illegal consideration, accepts a bill drawn on him by A. A. indorses it before maturity to C, who takes it for value and without notice. C. indorses the bill, when overdue, to D. D. acquires a good title, for C. had a good title.' But C. could not give a good title to A.* Explanation 3. — The existence of a set-o:^ or mat- ter of counterclaim against the holder of a bill is not an equity which attaches to the instrument.' Illustbations. C, the holder of a bill accepted by B., is indebted to B. for arrears of irent. If 0. sues B., B. can set off the arrears of rent; but if C indorses the bill when overdue to D. for value, B. cannot set off C.'s debt against !D.° Note. — If in the instance given C. indorsed the bill to D. '^Holmes v. Kidd (1858), 28 L. J. Ex. 112, Ex. Ch; Pecker v. Sawyer (1852), 24 Vt. 45; Eggan v. Briggs (1880), 23 Eans. 710. ^Faircloughv. Pavia{\8hi), 9 Bxoh. 690, Dunham v. CZoffff (1868), 80 Md. 284; HeretTi v. Bank (^1870), 34 Ind. 380. * Chalmers v. Lanion (1808), 1 Camp. 383; Barlow Y.Scott (1861), 12 la. 63. *Kost V. Bender (1872), 25 Mich. 616. " Oulds V. Harrison (1854), 10 Exch. 572; Ex parte Swan (1868), 6L. E. Eq. 344; Richardson v. Daily (1872), 34 la. 427; Davis v. Neligh (1878), 7 Neb. at 82; Young v. Shroner (1876), 80 Pa. St. 463. Contra, Baxter v. Uttle(\US), 6 Met. (Mass.) 7; Armstrong v. Chadwick (1879), 127 Mass. 156; Robinson v. Perrv (1882), 73 Me. 168; Pugh v. Grani (1882), 85 N. C. a9. > u '^Trafford v. HalHl%m), 7 R. I. 104. ART. 134.] TBAJ^SFER. 143 without, value, D. would sue as a mere trustee for 0.; therefore Negotiation of any defense available against C. would be available against D. °^®''**"' *""• also. This applies equally to current bills. CL Art. 141. Explanation 4. — If a bill is given for accommoda- tion, the mere absence of consideration is not an equi- ty which attaches to the instrument;' but if there be an agreement, express or implied, not to negotiate an accpmmodation bill after maturity, the agreement constitutes an equity which attaches thereto." Illustrations. 1. B., to accommodate A., accepts a bill drawn on him by the latter, payable one month after date. A., aftei* the bill is overdue, indorses it to 0. for value. C. can sue B.' 2. B., being willing to accommodate A. with a three months' credit, accepts a bill drawn on him by A. payable three months after date, upon the terms that it is not to be left outstanding after that time. A. discounts the bill with C. when overdue. 0. cannot recover against B.* Note. — The rule laid down seems obvious. Notice that a bill is an accommodation bill is no defense against a holder for value before maturity; why, then, should the fact be a defense afterward? The point, however, has only been settled in England after long controversy; and in America the author!-, ties are still in conflict, though the decided weight of authority is in favor of holding it an attaching equity, on the ground that there is always implied from the nature of the transac- tion, an agreement not to negotiate an accommodation bill after maturity. The accommodation party lends his credit for the specified time, and no longer. Explanation 5. — The rights of a person who is not \Sturtevant v. Ford (1842), 4 M. & Gr. 101; Ea> parte Swan (1868), 6 L. R. Eq. 344; Davis v. Miller (1857), 14 Grat. 1; Dunn v. Weston (1880), 71 Me. 270. Contra, Chester v. Dorr (1869), 41 N. Y. 279; Kellogg v. Barton (1866), 12 Allen (Mass.), 527; CogUin v. May (1861), 17 Cal. 515; Hoffman v. Foster (1862), 43 Pa. St. 137; Simons v. Mor- ris (1884), 53 Mich. 155. ^Parr v. Jewell (1855), 16 C. B. 684, Ex. Ch.; Carruthers v. West (1847), 11 Q. B. 143, decided on demurrer is not to the contrary; see ratio decidendi, per Wightmau, J. « Stein V. Yglesias (1834), 1 C. M. & R. 565. * Cf. Parr v. Jewell (1855), 16 C. B. 684; Cf, Chester v. Dorr (1859), 41 N. Y. 279. 144 BILLS OP EXCHANGE. [art. 134. I Negotiation of a party to the bill may constitute an equity attaching thereto, if they arise out of transactions relating to the instrument/ Illtjsteation. D., the manager of the " X. Bank," abstracts moneys be- longing to the bank, and purchases therewith an overdue bill of exchange accepted by B. This overdue bill he negotiates to E. The "X. Bank," and not E., is entitled to the bill, and if B. becomes bankrupt, the ''X. Bank" can prove against his estate.^ Note. ^Payment and other discharges are sometimes spoken of as equities attaching to a bill, but this seems incorrect; they are rather grounds of nullity. That which purports to be a bill is no longer such; it is mere waste paper. Part payment, however, may be regarded as an equity which attaches to a bill.' The position of a holder who takes a bill when overdue, is this: he is a holder with notice. He may or may not be a holder for value, and his rights will be regulated accordingly. He is a holder with notice for this reason : he takes a bill which, on the face of it, ought to have got home and to have been paid. He is therefore bound to make two inquiries. 1. Has what ought to have been done really been done, i. e., has the bill in fact been discharged? 2. If not, why not? Is there any equity attaching thereto? i. e., was the title of the person who held it at maturity defective? If his title to the instrument was complete, it is immaterial that for some collateral reason, e. g., as set-off, he could not have enforced the bill against some one or more of the parties liable thereon; Of. Arts. 88, 230. In France, it seems, no distinction is drawn between overdue and current bills; iV^owgrwier, §§ 679-680. By German Exchange Law, Art. 16. the indorser of an overdue bill ac- quires only the rights of his indorser; Of. the Scotch Law, under 19 & 30 Vict. c. 60, § 16. ^ Ex parte Oriental Bank (1870), 5 L. R. Ch. 358; Cf. Lee v. ZagHry (1817), 8 Taunt. 114— by analogy, Be Gomersall (1875), 1 L. R. Ch. D. 137. But see Hibernian Bank v. Everman (1876), 52 Misa. 500. / H. See as to the limits of the principle, Warren v. Haight (1875), 65 N. Y 171. f e > u \ n « Graves V. Eey{l^^), 3 B. & Ad. at 319; Lanati v. BQ,yU (1879), 31 La. Ann. 229. Hence equity will not compel surrender of an overdue bill, paid but not taken up: Fowler v. Palmer (1875), 62 N. Y. 533. ABTS. 135-37.] TRANSFER. 145 Art. 135- The fact that a bill has been dishonored After action and an action brought thereon does not restrain its '°"^ *■ negotiability.' IlXUSTKATION. C., the holder of a dishonored bill accepted by B., commences an action against him. Subsequently C. indorses the bill to D., who has notice of the action. D. can sue B. and recover. Note. — If a bill be transferred, after action brought, to em- barrass the defendant, his remedy is by application to the Court.^ The Court, too, has full power over costs. But when judgment is obtained, the bill ceases to be negotiable, as it be- comes merged in the judgment.' Rights Acquired by Negotiation. Art. 136. The person to whom a bill is negotiated Holder's rights. becomes the de facto holder (Art. 126) thereof. He thereby acquires the right to sue on the bill in his own name, and the power to further negotiate it.* Note. — -The power to negotiate must be distinguished from the right to negotiate. The right to negotiate is an incideut/ of ownership. The power to negotiate is an incident of ap- parent ownership. Again, the right to sue must be distin- guished from the right to recover; that depends on the further question whether the holder is a holder for value (Arts. 83 and 84), and in some cases whether he is also a holder for value without notice (Arts. 85 and 86). Art. 137. The de facto bolder of a genuine bill, Defaoo •' o / holder can regular on the face of it, who holds it wrongfully, or ^'^^ f""^ ''"*■ who by parting with it is guilty of a fraud, can nego- tiate it with a good and complete title to a person who takes it before maturity as a bona fide holder for value without notice.' Cf. Arts. 92 to 97. '2)e«*ers V. Townsend (1864), 32 L. J. Q. B. 301; Cf. Woodward v. Pell (1868), 4 L. R. Q. B. 55; Curtis y. Bemis (1857), 26 Conn. 1. 'Id. at 802, per Cockburn, J. ' Wooten 7. Maultshy (1873), 69 N. C. at 463. *Cf. Crouch y. Credit Fonder (1873), 8 L. R. Q. B. at S80-382. ^Marsion v. Allen (1841), 8 M. & W. at 504, see per Alderson, B., as to the principle. 10 ' 146 BILLS OF EXCHANGE. [akts. 138-39. Patent Ir- tegulaiity. fictitious Sayee and In- oisei. Art. 138. An irregularity patent on a bill is equiA'- alent to notice of any defect that may be behind it, and deprives the holder of the protection afforded to a bona fide, holder for value without notice." Illustrations. 1. A., who is in possession of a blank acceptance signed by B., fills it up as a bill for $100 in the presence of C, inserting his own name as drawer and O.'s name as payee. A. transfers the bill to C. for value. If it appears that A. had no authority to fill up'the bill, or that his authority had been revoked, C- cannot recover against B.^ 3. A. draws a bill on B. payable to his own order. B. accepts. It is afterwards arranged that .the bill shall be can- celled. B. accordingly tears it in half. A, subsequently picks up the pieces, joins them together, and indorses the bill to C, ■who takes it for value and without notice. If the bill is so torn that it appears to have been divided for safe transmission by post, C. can recover; but if it was so torn as to show an in- tention to cancel it, cannot recover.' Note. — The rule as to overdue bills (Art. 134), is probably a deduction from the same principle. See, too. Art. 74 as to signature " per proc." and Art. 250 as to alterations. See the distinction between latent and patent defects observed -on by Lord Ellenborough and Bayley, J.* Art. 139. No title can be made to a bill through the indorsement of a fictitious or non-existing person unless the party sued is estopped from setting up the fact. (Cf..Art. 81.) /■ \Colson-t(18U). 57 N. T. 253; Cf. Angle v. Ins. Co. (1875), 92 lU. S. at 342; Freeman's Bank v. Savery (1879), 127 Mass, at 79. ^ Hatch r. Searles (1854), 2 Sm. & G. 147, Stanway's case; see, too, Conway's case affirmed, 24 L. J. Ch. 22, and Awde v. Dixon (1851), 6 Exch. 869. ^Ingham r. Primrose (1859), 7 C. B. N. S. 82; Cf. SckoUy v. Eams- hottom (1810), 2 Camp. 485; Eedmayne v. Burton (I860), 2L. T. N. S. 824. *Dunn V. O'Eeefe (1816), 5 M. & S. at 286-289; C£. Ex parte Dixon (1876), 4 L. R. Ch. D. at 136, C. A. ART. 139.] TMANSFEB. 147 IlI,USTEATIONS. Fictitious payee ^ad lu- 1. A. draws a bill on B. payable to C.'s order. C. is a fie- <'°™^'- titious person. B. accepts in ignorance of this fact. A. then indorses the bill in blank in C.'s name and discounts it with D., who has notice. D. cannot sue B.' 2. A. draws a bill on B. payable to C.'s order. C. is a fic- titious person. 'B., knowing this, accepts. A. indorses the bill in blank in C.'s name, and it is negotiated to D., a bona fide holder for value without notice. D. can- sue B.^ 3. B. is indebted to C. By arrangement between them a bill is drawn in the name of A., a deceased person, on B., pay- able to drawer's order. B. accepts, and the bill is indorsed in A.'s name to C. C. can sue B.' 4. A bill purporting to be drawn by A. on B., payable to C.'s order and indorsed by C. in blank is held by D. X. ac- cepts it ^apra protest for A.'s. honor. D., who is a bona fide holder, sues X. It turns out that A.'s signature was forged, and that C. is a fictitious person. X. is estopped from setting up these facts.* , 5. B., at the request of X., makes a note payable to C.'s order. C. is a fictitious person, but B. does not know this. X. indorses the note in C.'s name and it is negotiated to D., a bona fide holder for value without notice. D. can sue B.° Note. — As to the effect of the drawee being a fictitious per- son, see Art. 2. In France the signature of a fictitious person on a bill constitutes a " supposition de nom," and renders the instrument invalid as a bill in^ the hands of all parties with no- tice." The signature of a fictitious person must b^ distin- ' Hunter v. Jeffery (1797), Peaks Ad. Ca. 146; Cf . Bennett v. Farrell (1807), 1 Camp. 129 and 180. ^ Gibson V. Minet (1791), 1 H. Bl. 569, H. L.; Cf. Gihson v. Hunter (1794), 2 IT. Bl. 288, H. L.; Farnsworth v. Drake (1858), 11 Ind. 101; Forbes v. Espy (1871), 21 0. St. 474. "Asphitel V. Bryan (1863), 32 L. J. Q. B. 91; per Crompton, J., an estoppel on evidence. Affirmed Ex. Ch. 33 L. J. Q. B. 328, per cur., an estoppel by agreement. *PMlUps,v. Im Thurn (1865), 18 C. B. N. S., 694, on demurrer; see 1 L. R. C. P. 463, on evidence. ^Lane v. KreUe (1867), 22 la. 477; Cf. Ort v. Fowler (1884), 3,1 Kans. 478 (maker of note in favor of fictitious firm); Cooper v. Meyer (1830), 10 B. & C. 468; Beeman v. Duck (1843), 11 M. & W. 251; SchuJtz V. Astley (1886), 2 Bing. N. C. 544. ^Nouguier, §§277, 284-288; Cf. French Code, Art. 112; Italian Code, Art. 198. 148 BILLS OF EXCSANQB. Laet. 141. Fictitious : guished from («); the signature of a real person who uses a fic- iorser^'^'^ '"" t'*io"s name (Of. Art. 71, Expl. 2), and (p) the false signature of a'real person' (Of. Art. 81). Rights of Action and Proof. De facto ^^t. 141. The de facto holder of a bill is entitled of action!* to maintain an action thereon unless it is shown that he holds the bill adversely to the true owner.' Explanation 1. — It is immaterial that the holdet never had any interest in the bill,' or that he has parted with his interest therein,* Explanation 2. — When the holder of a bill sues as agent for another person, or when he sues wholly or in part for the benefit of another person, any defense or set-off available against that person is available pro tanto against the holder.^ (Cf. Art. 88.) Illusteations. 1. C, the holder of a bill, indorses it to D. for collection. D. can sue on it, but any defense available against 0. is avail- able against D.' 3. D. is the holder of a dishonored bill for $100 indorsed by 0. 0. pays D. $60. D. sues the acceptor. As to $60, D. sues 'See Rogers v. Ware (1873), 2 Neb. 29; Dana v. Underwood (1837), 19 Pick. (Mass.) 99; Maniort v. Bfberts (1855), 4 E. D. Sm. (N. T.) 83. ^ Jones V. Broadhurst (1850), 9 C- B. 173; Agra BanJr. v. Leighton (1866), 2 L. R. Ex, at 63-65; WeHs v. Schoonover (1872), 9 Heisk. (Tenn.) 805. See Art. 125, de facto holder defined. 'Law V. Parnell (1859), 7 C. B. N. S. 282; Wheeler v. Johnson (1867), 97 Mass. 39; Caldwell v, Lawrence (1876), 84 111. 161. ^ Williams \. James (1850), 15 Q. B. 498; Poirier v. Morris (1853) 2 E. & B. 89; Cf. Megrath v. Gray (1874), 9 L. R. C. P. 216; Richard: «on V. iJMCoZM (1842), 5 Met: (Mass.) 201. ^Leev. Zagury (1817), 8 Taunt. 114; Royce v. Barnes (1846), 11 Met. (Mass.) 276; Agra Bank v. Leighton (1866). 2 L. R. Ex. 56; Re Anglo- Greek Nav. Co. (1869), 4 L. R. Ch. 174; PotUer, No. 41; Cf. Beeher- vaise v. Lewis (1872), 7 L. R. C. V. 372. • De la Chaumette v. Bank (1829), 9 B. & C. 208, as explained by Good- win V. Roharts (1875), 10 L. R. Ex. at 164, Ex. Ch. ; Royce v. Barnes, supra; Boyd v. Corbitt (1877), 37 Mich. 52; Cummings v, Kohn (1882), 12 Mo. App. 585, • y ARTS. 142-43.] TRANSFER. 149 as trustee for C, and only as to $40 on his own account. AsD«/acto „ , . , , , . , holder's right regards $60, any set-oft which the acceptor may have against of action. 0. is equally .available against U.' Note. — Statutes have been passed in several States requir- ing all actions to be prosecuted by the real party in interest, ' modifying the rules here laid down. Art. 142. Subiect to Arts. 98 and 99, wlien a bill Aotion on mi •> payable is payable to a particular person or persons, or to his specially. or their order, an action thereon must be brought in the name of such person or persons.'' , Illusteations. 1. A bill is specially indorsed to the firm of " D. & Co." An action on it must be brought in the name of the firm. The managing partner cannot sue on it in his own name. 1 3. A bill is specially indorsed to D., a partner in the firm of X. & Co., in payment of a debt dae to the firm. An action on it must, be brought in D.'s name, and not in the name of the firm.' ■ Note. — In the case given in Illust. 1, the managing partner might indorse the bill in the firm's name to himself and then sue. Cf. Art. 119, n., as to striking out indorsements. Art. 143. Subject to Art. 141, when a bill is pay- Action on wu able to bearer an action thereon may be brought in Seller. the name of any person who has either the actual or the constructive possession thereof. Il.LUSTBATIONS. 1. C, the holder of a bill, indorses it in blank to D. to col- lect it for him. Either C. or D. may sue the acceptor.* 2. A bill accepted by B. is indorsed in blank by C. D., E. " Thornton v. Maynard (1875), 10 L. R. C. P. 695. ' 2 Attwoodv. Rattenhury (1822), 6 Moore at 583; Pease v. Hirst (1829), 10 B. & C. 122; mchols v. Gross (1875), 26 0. St. 425; Noxon v. Smith (1879), 127 Mass. 485; Barry Co. v. McGlothlin (1854), 19 Mo. 307 (" Pay D. for the use of X."). 'Baieden v. Howell fl841). 3 M. & Gr. 638. ♦ Clerk V. Pigot (1699), 12 Mod. 193; Cf. Stone v. Butt (1834), 2 Cr. & M. 416. But that D. 'cannot sue, see Best v. Bank (1875), 76 111. 608 (statute). 150 BILLS OF EXCHANGE. [akt. 143. Action on bill and F. bring an action on the bill against B. They can re- bearer, cover, although there is no evidence to show that they are part- ners, or what the nature of their joint interest is.' 3. A bill is indorsed in blank to a firm. Any one of the partners may bring an action on it in his own name.' 4. A bill indorsed in blank is handed to the manager of a company in payment of a debt due to the company. The man- ager may sue on it in his own name.' 5. A bill indorsed in blank is given to D.'s attorney, who commences an action on it against the acceptor in D.'s name. D. knows nothing of the matter, but after the action has pro- ceeded some way he is told of it, and then gives his consent. D. can maintain the action.* 6. D., the holder of a bill indorsed in blankj does not wish to sue on it in his own name. He accordingly asks E. to sue on it. E. consents. E. gets a copy of the bill, and it is agreed that he shall have the original when wanted. E. commences an action against the acceptor, and after action brought he gets the bill. E. cannot maintain this action, for at the time he began it he had neither the actual nor the constructive pos- session of the bill.^ Explanation. — A constructive possession jointly with others is sufficient to entitle the possessor to sue alone. Ilhtsteation. A note payable to bearer is handed to the solicitor of a loan society in payment of a debt due to the society. D., a mem- ber of the society, instructs the solicitor to commence an ac- 1 Ord V. Portal (1812), 3 Camp. 239; Cf. Bordtmzv. Leach (1816), 1 Stark. 446; Low v. Covestahe (1828), 3 C. &?. 300. f Undley, p. 802; Aftwqod v. Eattenhury (1822), 6 Moore, 579; Wood v. Connop (1843), 5 Q. B. 292, as to joint holders; Conover v. Earl (1868), 26 la. 168, as to holders in common. ' Law V. Parnell (1859), 7 C. B. N. S. 282; Cf. Pettee v. Prout (18551, 3 Gray (Mass.), 502. * Aneona v. Marks (1862), 31 L. J. Ex. 163; Craig v. Twomey (1860), 14 Gray (Mass.), 486. '^Emmettv. Tottenham (185.3), 8 Exch. 884; Cf. Hovey v. Sehring (1872), 24 Mich, at 233. But cf . Austin v. Birchard (1859), 31 Vt. 589. ART. 144.] TBANSFEB. 151 tion on it in his (D.'s) name against the maker. D. can main- Aetito^on wu tain this action." Nearer. Note. — As to constructive possession, see Att. 53, n. Art. 144. If a bill, negotiable by delivery,^ is lost, Action on lost no action at law can be maintained thereon,' though lost when overdue,* unless (1.) The bill is shown to have been destroyed;* or (2.) The bill is shown to have come into the pos- session of the defendant since the loss;" or (3.) The defendantis protected from future liability by the statute of limitations/ Note. — This matter is now regulated by statute in Eng- land,' and in some of the States. Unless the defendant runs no risk of future liability to a bona fide holder, by non-surren- der of the instrument, the remedy of the plaintiff is solely in equity, where the defendant's rights can be approximately pro- tected by a bond of indemnity. ' JenTcins v. Tongue (1860). 29 L. J. Ex. 147. ' Aliter, if non negotiable — Hough v. Barton (1848), 20 Vt. 455; Wain V. Boflej; (1839), 10 A. & E. 616; Price v. Dunlap (1855), 6 Cal. 483, Or negotiable only by indoTsevaent— Lazell v. Lagell {18i0), 12 Vt. at 449; Wright v. Wright (1873), 54 N. Y. 437; Depew v. Whelan (1843), 6 Blackf. (Ind.) 485;' Rogers v. Miller (1843), 4 Scam. (III.) 333. Con- tra in England, C»-otffe v. Clay (1854), 9 Exch. 604. ^Hansard v. EoUnson (1827), 7B. & C. 90; Thayer v. King (1846), 15 0. 242; Rowley v. Ball{\9,U), 3Cow. (N. Y.) 303. Contra, in Mass., ■plaintiff being compelled to give bond of indemnity, Falesv. Russell (1835), 16 Pick. (Mass.) 315; Tucher v. TucTcer (1875), 119 Mass. 79; unless defendant is indorser, Tuttle v. Standish (1862), 4 Allen (Mass.) 481. See, also, Reener v: Bank (1824), 9 Wheat. (U. S.) 581; Welton v. Adams (1854), 4 Cal. 37. * Rowley v. Ball, supra; Swift v. Stevens (1831), 8 Conn, at 486. Contra, Tlpayerv. King, (1846), 15 0. 242. ^ Wright V. Maidstone (ISbb), I Kay & J. 701; DeArts v. Leggett (1858), 16 N. Y. 582; Baldwin y. Wade (1878), 20 Kans. 251; Hagers- town V. Adams Ex. Co., (1863), 45 Pa. St. 419 (applied to bank notes); but see Tower v. Bank (1862), 3 Allen (Mass.), 387. No recovery if vol- untarily destroyed, Booth v. Smith (1876), 3 Woods (C. Ct.), 19. ■» Smith V. M'Clure (1804), 5 East, 476; Garloek v. Geortner (1831), 7 Wend. (N. Y.) 198. ' Torrey v. Foss (1855), 40 Me. 74; Moses v. Trice (1871), 21 Grat. (Va.) 556. « British Code, § 70. Cf. King v. Zimmerman (1871), 6 L. R. C. P. 466, and see Wright v. Maidstone (1855), 1 Kay & J. 701. CHAPTEK V. DUTIES OF THE HOLDER. Effect of Omission. Effect on con- Art. 146. When a party to a bill is discharged oSorof^ from his liability thereon by reason of the holder's ° * " omission to perform his duties as to presentment for acceptance or payment, protest, or notice of dishonor, such party is also discharged from liability on the con- sideration for which the bill was given.^ Note. — The holder's omission, without lawful excuse, to per- form his duties with reference to a bill is commonly called "laches." Presentment for Acceptance. When nee- ■^^^- ^^'^ ' Presentment for acceptanije is necessary toS°'°^ in the case of a bill of exchange payable at or after sight. In other cases, in the absence of express stip- ulation, it is optional,'' Illustration. A. draws a bill on B. payable at the "X. bank " three months after date. Presentment to B. for acceptance is not necessary- It is sufficient to present the bill for payment when due at the X. bank.' Note. — Although presentment for acceptance is unnecessary on date bills as between the holder and drawer or indorsers, an agent for collection must use due diligence in presenting , " Byles, pp. 219 and 297, and post, Arts. 160, 190; Cf. Crowe, v. Clay (1854), 9 Bxch. .604. ^ Ramchurn v. Badakissen (1854), 9 Moore P. C. at 65, 66; Allen V. Sui/dam [1838). 20 Wend. (N. Y.) at 323; Cribis v. ^dawa (1859), 13 Gray (Mass.), 597; Bank v. Triplett (1828), 1 Pet. (U. S ) 25. « Wallcer v. Stetson (1869), 19 0. St. 400. (152) A.ETS. 148-50.] , DUTIES OF TEE HOLDER. 153 them for acceptance, or he will be liable to his principal for when nec- damage resulting from his negligence,' as where he takes the^Jn^;"' °^ individual acceptance of an ofBcer of the corporation upon which the draft is drawn, instead of the company's accept- ance.'' "Sight" in a bill means acceptance, and as sight bills are, in the absence of statute, entitled to grace, presentment for acceptance is necessary to fix the day of maturity. Sup- pose A. draws a bill on B. in Liverpool, payable in London, but not saying where, is not presentment for acceptance nec- essary? It would be so in France, N'ouguier, § 1068. By German Exchange Law, Art. 34, when a bill is drawn pay- able at the house of a third person, the drawer may insert a stipulation requiring presentment for acceptance. In France it seems the drawer or indorser of any bill may insert such a stipulation, Nouguier, §§ 464-469. Art. 148. Due presentment for acceptance is a con- Due present- , ■*■, mentforac- dition precedent to the exercise by the holder of the cep.'anoe. rights which arise on dishonor by non-acceptance. (Cf. Art. 157.) Explanation. — "Due presentment for acceptance" means presentment in accordance with Arts. 149 to 154. Note. — " Pxesentment" means actual exhibition of the bill, and it is not duly presented if the holder merely informs drawee that he has it in his possession, but does not produce it, though the drawee says he will not accept it.° Subject to Art. 150, Expl. 3, the question of due presentment is only material when acceptance cannot be obtained. If acceptance is obtained the informality of the presentment is immaterial. It is clear that the rules as to presentment for payment do not apply in their entirety to presentment for acceptance. Of. Art. 155, n. Art. 149. Any person in possession of a bill of bj- whom. exchange may present it for acceptance.* Art. 150. The holder of a bill of exchange payable nmeforpre- at or after sight is bound either to negotiate it away ".'tersight 'As to date bill, Allen v. Suydam (1838), 20 Wend. (N. Y.) 321: Pothier, No. 128; Nouguier, § 462. As to sight bills. Bank of Van Diemen'sLand v. Bank of Victorm (1871), 3 L. R. P. C. at 542. Cf. Art. 164, n. ^Exchange Nat. Bank v. Third Nat. Bank of N. Y. (1884), 112 U. S. 276. 'Bank v. Willard (1842), 5 Met. (Mass.) at 222. *Nouguier,% 462; German Exchange Law, Art. 18; Thomson, p. 282; 154 V BILLS OF EXCHANGE. - [art. 150. Time for pre- or to present it for acceptance within a reasonable aenting bill , '■ . . i i i i . after sight, time. It 116 ooiit to do SO the drawer and prior in- dorsers are discharged.' Explanation 1. — Reasonable time is a mixed ques- tion of law and fact.'' Explanation 2. — In determining what is a reason- able time regard is to be had to the nature of the bill, the usage of trade with respect to similar bills, and the circumstances of the particular case looking to the interests both of the holder and the drawer.' Illustrations. 1. A. in Wifldsor draws a bill on B. in London, payable one month after sight. The holder keeps it four days before pre- senting it for acceptance. It is then dishonored. This may not be ail unreasonable delay.* 2. A. in London draws a bill on B. in Rio, payable sixty days after sight. The payee holds it back for four months, during which time Rio bills are at a discount. He then negotiates it. This may not be an unreasonable delay.' 3. A. in Newfoundland draws a bill (m a setf on B. in Lon- don, payable ninety days after sight. The payee holds it back for two months and then forwards it for presentment. No reason for holding back is shown. This may be an unreason- able delay." Cf. Morrison v. Buchanan (1833), 6 C. & P. 18, and Art. 28, as to the parta of a set. ^MelUshY. Rawdon (1832), 9 Bing. 416; Ramehum v. Madakissen (1864), 9 Mpore P. C. 46; Wallace v. Agry (1821), 4M;ason (C. Ct), 836; Strong V. King (1864), 35 III. 9; Of. Goupy v. Harden (1816), 7 Taunt, at 163. Cf. Art. 146. "Id.; Cf. Prescott Bank v. Caverly (1856), 7 Gray (Mass.), at 221; Walsh V. Dart (1868), 23 Wis. 384. Contra— law, Aymar v. Beers (1827), 7 Cow. (N. T.) 705; Himmelman v. Hotaling (1870), 40 Cal. Ill; fact, Wallace Y. Agry, supra; Pryor v. Bowman (1874), 88 la. 92. °Id.; Wallace V. Agry, supra. *■ Fry V. Hill (1817), 7 Taunt. 895; Cf. Shute v. Bohins (1828), 2 0. & P. 80. See Goican v. Jackson (1822), 20 Johns. (N. Y.) 176 (six months in circulation). ^Mellish V. Eawdon, supra. 'Straker v. Graham (1839), 4 M. & W. 721; Cf. Dumoni v. Pope (1845), 7 Blackf. (Ind.) 367; Art. 28. AKT. 151.] DUTIES OF THE HOLDER. 155 4. * A. in Calcutta draws a bill on B. in Hong Kong, payable Time for pre- " o' r . sentmg bill sixty days after sight. The holder retains it for five months, after sight during which time China bills are at a discount. He then ne- gotiates it. This may be an unreasonable delay.' Explanation 3.^^ When there is unreasonable de- lay the drawer and prior indorsers are (probably) discharged, although the bill when presented is ac- cepted." Illustration. A. draws a bill on B. payable to C. three months after sight. C. holds it back for an unreasonable time. He then presents ' it and it is accepted. Before it is due the acceptor fails. A. is discharged." Note. — Qu. What, if any, is the liability of a person who retains a bill an unreasonable time and then negotiates it with- out indorsement? Again, does not negotiation within a reason- able time, toties quottes, excuse presentment, or is there any limit? By German Exchange Law, Art. 19, when a bill pay- able after sight does not fix a time for presentment, it must be presented within two years of its date. By French Code, Art. 160, as amended by the law of May 3, 186Ji, bills payable after sight are divided into classes according to the places where they are drawn and payable, and definite limits of time for pre- sentment are fixed, varying from three months to one year — e. g., bill drawn in Paris on London must be presented for ac- ceptance withm three months. The effect of this conflict of laws has not .been considered. Art. 151. A bill of exchange, payable otherwise Time for pre- than at or after sight, may be presented for accept- bms. ance at any time before maturity.' Note. — In the case of a bill which is due or payable on de- mand, presentment for acceptance is merged in presentment for payment. In the case of a bill payable after date, it has been held in New York (the only decision on the point in Eng- ^Eamekurn v. Radaleissen (1854), 9 Moore P^ C. 46; Cf. Godfray v. Coulman (1859), 13 Moore P. C. 11; Phoenix Ins. Co. v. Allen (1863'), 11 Mich. 501. 'Straker v. Graham (1839), 4 M. & W. 721. 'O'Keefe v. Dunn (1815), 6 Taunt. 307; Townsley v. Sumrall (1829), 2 Pet. (U. S.) 170; German Exchange Law, Art. 18; Nouguiet, § 456. im BILLS OF EXCHANGE. [abts. 152-53. Time for pre- land or America) that it may be presented for acceptance on bin's'".® ' the very day it becomes due, and if refused, it may be treated as dishonored either for non-acceptance or non-payment' Considering the difference in the rules which govern the two kinds of presentment, this might have important consequences. 8ee, ajso, Art. 34 When a bill is presented for payment, the drawee instead of paying it, often accepts it payable at his banker's. This is in effect a payment by check,'' which the holder might refuse to take. Day and hours. Art. 152. Presentmentfor accGptance must (prob- ably) be made on a business day, and at a reasonable hour.' Explanation , 1. — "When tbe drawee is a trader reasonable hours mean the ordinary business hours of his trade.* Illustkations. Bill drawn on a banker is presented for acceptance after banking hours and the bank is found closed. The bill cannot be treated as dishonored. Note — It has been held, moreover, that if a bill payable after date be presented for acceptance at the house of the drawee, his absence when presented, though at a reasonable hour, would not justify a protest for non-acceptance.* Probably if ppesent- ment was made on a non-business day, or at an unreasonable hour, and the drawee refused acceptance on some other ground, the bill might be treated as dishonored. To whom and -A-rt. 153. Presentment for acceptance must be made to the drawee personally, or to some person who has authority to accept or refuse acceptance on his behalf.' Explanation 1. — When a bill of exchange is drawn ^ Plato v. Reyholds (1863), 27 N. T. 686, Marvin, J., dissenting. • 2 Cf. Bishop V. Chitfy (1742), 2 Stra. 1195. » Nelson v. Fotterall (1836), 7 Leigh (Va.), 179; Chitty, p. 199; Byles, p. 182. Cf. Art. 163, and Startup v. Macdonald (1843), 6 M. & Gr. at 624. * Cf . Nelson v. Fotterall (supra), at 194, and Art. 163. ^Banh v. Triplett (1828), 1 Pet. (U. S.) 25, at 85. • Cheek v. Roper (1804), 5 Bsp. 1 75; Sharpe v. Drew (1857), 9 Ind. 281. where. ABTS. 154-55.] DUTIES OF THE HOLDER. - 157 payable at the house or place of business of some per- to whom and ■t ^ ■*■ *■ waere. son Other than the drawee, presentment for acceptance at such house or place is not a presentment to tbe drawee.' Explanation 2. — "When the drawee is dead present- ment must (perhaps) be made to his executor or ad- ministrator/ Note. — The law on this point is not yet settled. Explanation 3. — If a bill is drawn on two or morf persons, presentment for acceptance to one is (proba- bly) sufficient, whether partners or not.^ Art. 154. The person who presents a bill of ex- Drawee may 1 f IT- 11 retain bin change tor acceptance must deliver it up to the drawee g^^^y-^"™ if required so to do. The drawee is entitled to retain it for twenty-four hours, but after the expiration of this time he must re-deliver it accepted or unaccepted.* Explanation 1. — -In reckoning, the twenty-four hours non-business days must be excluded,^ Explanation 2. — If after the expiration of the twenty-four hours the drawee refuses to re-deliver the bill it must be treated as dishonored in order to pre- serve the holder's right of recourse against antecedent parties.' Art. 155. Presentment for acceptance is excused, presentment and a bill of exchange may be treated as dishonored when Ixcused! by non-acceptance ; ' Chitty, p.196; Ce. Art. 155, n. "Cf. Smith V. N. S. Wales Bank (1872), 8 Moore, P. C. N. S. at 461- 462, per Mellish, L. J. But see DaraieZ, § 458. French Code, Art. 16;j. 'Daniel, §455. ^ Bank of Van Dieman'sLand v. Bank of Victoria (1871). 3 L. R. P. C. at 542-543; Case v. Burt (1866), 15 Mich. 82; Overman v. Bank (1864), 31 N. J. L. at 565; Story, §237; French Code, Art. 125. 'Id. see at 546-547, as to the effect of a short day — e. g-, Saturday. »Id:; Cf. Ingram v. Forster (1805), 2 J. P. Smith, 242; German Ex- change Law, Art. 20. 168 1 BILLS OF EXCHANGE. |akt. 155. Presentment 1. When the drawee is discovered to be a ficti- when^excu^ed, tious person' or (perhaps) a person not having capacity to contract.^ 2. (Probably) when, after the exercise of reason- able diligence, presentment cannot be effected.' 3. When the drawee is not in funds, and the drawer has no reasonable expectation that the bill will be accepted.* Note. — In Anon (1700), 1 Ld. Raytn. 743, where the drawee had absconded, the bill was merely protested for better secur- ity, and at maturity it was again protested for non-payment. This seems to be the only case in pointj but it can hardly be a binding precedent now that it is settled that a right of action at once arises on dishonor by non-acceptance (Art. 157). At the same time it is clear that considerations applicable to pre- sentment for payment do not apply in their entirety to present- ment for acceptance. Speaking generally, presentment for acceptance must be personal, while presentment for payment must be local. A bill must be presented for payment where the money is. Any one can then hand over the money (Cf, Art. 167). A bill must be presented for acceptance to the drawee himself, for he has to write the acceptance; but the place where it is presented to him is comparatively immaterial, for all he has to do is to take the bill (Of. Art. 154). Again (except in the case of demand drafts) the day for payment is a fixed day, but the drawee cannot tell on what day it may suit the holder to present a bill for acceptance. If the drawee be a trader, it is clear that the bill should be presented for accept- ance at his place of business, but suppose the drawee is not there, what further steps must be taken? What diligence must be used before the bill can be treated as dishonored? The immediate right of action which arises on non-acceptance is an exceptional right.' How far ought it to be favored? It is one thing to excuse delay where presentment is necessary; » Cf. SmHh V. Bellamy (1817), 2 Stark. 223. ^Byles (12th ed.), p. 187; no decision in point. ^ By les 1121)0. ed.), p. 183; Chitty, p. 199'; Brooks' Notary, 4th ed. p. 79; no decision in point. Cf. Smith v. N. S. Wales Bank (1872), 8 Moore P. C. N. S. at 461-463. Delay excused by sickness or unavoid- able accident, Aymar v. Beers (1827), 7 Cow. (N. T.) 705; Cf. Art. 169. ^Rohinsonv. Ames (1822), 20 Johns. (N. Y.) 146; Cf. Ex parte Ton- deur (1867), 5 L. R. Eq. at 165; Art. 168. * Cf. Art. 157, n., and Dunn v. O'Keefe (1816), 5 M. & S. at 289, Ab- bott, C. J. A.1JTS. 156-57.] DUTIES OF THE HOLDER. 159 another to treat a bill as dishonored where presentment is op- Preaeutment, tional. ^^• Art. 156. A bill of exchange is dishonored by Dishonor bj ii/i\i ••Ti !(• "on-aocept- "noQ-acceptance, (1) when it is duly presented tora^oe. acceptance, and an acceptance in due form is refused or cannot be obtained, or (2) when presentnaent for acceptance is excused, and the bill is not accepted. Art. 157. Subject to Art. 48, when a bill of ex- consequence . ,. of dishonor by change is dishonored by non-acceptance, an immedi- ^l^^^^^ ate right of recourse against the drawer and indorsers accrues to the holder, provided that the proper pro- ceedings on dishonor be taken.' iLLUSTRATIOlSr. A. draws a bill on B. payable to C. three months after date. Two days after it is drawn 0. presents the bill to B. for ac- ceptance. B. dishonors it. 0. can at once sue A. on the bill, A. need not wait till it matures. Note. — This rule seems peculiar to English and American law. On the continent the holder can only protest the bill for non-acceptance and demand security- from the drawer and in- dorsers. When the bill matures he must again present it for payment. His right of action arises on non-payment.' The effect of this conflict of laws has not been judicially con- sidered. : Explanation. — The holder of a bill of exchange which has been dishonored by non-acceptance may re-present it to the drawee for acceptance or payment, though he is not bound so to do.^ Note. — Suppose a bill is presented for acceptance and dis- ■ Whitehead v. Walker (1842), 9 M. & W. at 516; Watson v. Tarpley , (1855), 18 How. (U> S.) 517; Walsh v. BlatchUy (1853), 6 Wis. 422. Notice of dishonor necessary, Art. 189. ^French Code, Arts. 119-120; German Exchange Law, Arts. 25-28. Also the law in Penn.: Bead v. Adams (1821), 6 Serg. & R. 356. 'HieJeling T. Hardei/ (1817), 7 Taunt. 312; Lenox y. Cook (1812), 8 Mass. 460. 160 BILLS OF EXCHANGE. [akts. 158-60. Consequence honored. The holder gives no notice of dishonor, but re-pre- Son-acoTp" ^^ sents the bill a few days after and g^ets it accepted. It is dis- ance. honored by non-payment. Are the drawer and indorsers dis- charged as regards such holder? A subsequent holder without notice would not be affected (Art. 191). The proper course is to give notice of dishonor, and at the same time to intimate an intention to re-present. Duties as to Qualified Aceeptancesi ■ Holder's risht Art. 158. The holder of a bill of exchange is oeptanoe. entitled to h^ve it accepted generallyl If a general acceptance be refused and a qualified acceptance is oflfered or given, the bill may be treated as dishon- ored.' Note. — As to general and qualified acceptances, see Arts. 38, 39. By German Exchange Law, Art. 30, if the acceptor refuses to date his acceptance on a bill payable after sight, it may be treated as dishonored. Notice of Art. 159. If the holder of a bill of exchange elect qualified ao- t/>" i i . • p ceptance. to take a qualified acceptance, he must give notice oi the qualification to antecedent parties.'' Note. — As, to the effect of the notice when given, see Art. 40. A foreign bill should be protested as to the variation. The notice given must be notice of qualification, not notice of dishonor. If the holder give notice of dishonor, he cannot take advantage of the acceptances^ Presentment for Payment to 'Charge Drawer and Indorsers. Necessity for Art. 160. DuG presentment for payment, unless presentment. x ./ ' Boehm v. Garcias (1808), 1 Camp. 425; Gammon v. SchmoUiiSU), 5 Taunt, at 353; Ford v. Angelrodt (lfc65), 87 Mo. 50; Cf. French Code, Art. 124; German Exchang'e Law, Art. 22. ^ Cf. Sehag v. Alith'ol (1816), 4 M. & S. at 466, Bayley. J.; Whitehead V Walker (1842), 9 M. & W. at 509; Walker v. Bank (1854), 9 N. Y. 3 Cf. Bentinck v. Dorrien (1805), 6East^ 199. ARTS. 160-61.1 DUTIES OF THE HOLDER. 161 excused,^ is a condition precedent to the liability of Necessity for presentiueDt. the drawer or indorser of a bill of exchange." The omission by the holder to make due presentment de- prives him of any right of action on the consideration, as well as of his right of recourse on the instrument.^ Moplanation. — Due presentment for payment means presentment in accordance with Arts.' 160 (a) to 167. I Note. — The rules applicable to the drawer or indorser of a bill apply equally to the indorser of a note * or check,* but they are modified as to time as regards the dra/mer of a check (Art. 258). See Art. 155, u., presentment for payment and present- ment for acceptance contrasted. According to French Code, Art. 161, a bill must be presented for payment on the day it falls due, but it seems no penalty follows the omission to pre- sent, provided the bill be duly protested on the following day: Nouguier, § 1076. Practically, then, protest is substituted for presentment for payment. Again, a distinction is drawn be- tween the drawer and the indorsers. Omission duly to protest discharges the indorsers, but the drawer is not discharged un- less he shows affirmatively that the drawee or acceptor had funds to meet the bill." Art. 160 (a). When a bill is presented for pay- what hower ment, payment must be demanded according to the "^ ^™^° * tenor of the bill.' Illusteation. Holder presents a bill legally payable in silver, and demands payment in gold coin. This is not a due presentment.' Art. 161. A bill payable- at or after sight or at a At what time '■ •' ° bill payable Jn ' Cf. Arts. 200, 201, as to excuses. ^'^"'' " Cf. Eowey. Young (1820), 2 Bligh. H. L. at 467; Wood v. Surrells (1878), 89 III. 107; German Exchange Law, Arts. 41 and 91. ' Soward v. Palmer (1818), 8 Taunt. 277; Peacock v. Purcell (1863), 32 L. J. C. P. 266; Smith v. Miller (1870), 43 N. Y. 171; Adams v. Boyd (1878), 33 Ark. 83. * Cf. Gm V. Mather (1832). 2 Cr. & J. at 262-263, Ex. Ch. - Barker v. Anderson (1889), 21 Wend. (N. T.) 372. 'French Code, Arts. 117, 170; Nouguier, §§ 1147-1165. ' Simpson v. Pacific Ins. Co. (1872), 44 Cal. 139, at 143. ' Langenberger v. Kroeger (.1874), 48 Cal. 147. 11 162 BILLS OF EXCHANGE. fARTs. 162-^3. AtwhMtime future time (Art. 19) must be presented for- payment ' . on the day that it falls due,' as determined by Art. 20. Bin of ex- Art. 162. A bill of exchange payable on demand ^ondemand* * (Art. 18) must be presented for payment within a ' reasonable time." NoTB. — There seems to be no English decision in point. The cases have arisen either on checks or notes. A check is in- tended for prompt presentment and not for negotiation (Art, 254), so it is doubtful how far the cases on checks apply, even to an inland bill.' A note, oii the other hand, is a continuino- security (Art. ii85). Under the continental codes, a bill paya- ble at sight must be presented for payment within the same limit of time that a bill payable after sight must be, presented for acceptance. This seems the true principle; see Art. 150 on this point. , Explanation'. — The holder of a bill who indorses it when overdue, is to be deemed an indorser of a bill pay- able on demand, within the meaning of this Article.* Ilitistration. O. is the holder of an overdue bill payable six months after date. He indorses it to D.- D. mustpresent it to the acceptor for payment within a reasonable time in order to hold C. as indorser.' ' Reasonable Art. 163. Presentment for payment must be made hours. ^ •' during reasonable hours.' ^PMlpof V. Bryant (1828), 4 Bing. at 720; Windham Bank v. Norton (1852), 22 Conn. 213; Barnes v. Vaugkan (1859), 6 R. I. 259, French pode, Art. 161; see e. g., Wiffen v. Rolerts (1795), 1 Bsp. 262, present- ment on second day of grace; Prideaux v. Collier (1817), 2 Stark. 58, presentment on day after maturity. Presentment necessary at the time each installment of bill falls due, Eastman v. Furman (1864), 24 Cal. 379. ^Byles, p. 211; Story, § 325. Reasonable time: Nat. Banking Co. v. Bank (1869), 63 Pa. St. 404; Muncy Dist. v. Commonwealth (1877), 84 Pa. St. 464. Unreasonable time: Chambers v. Hill (1863), 26 Tex. 472. Same rule as to bills at sight without grace: Montelius v. Charles (1875), 76 111. 303; Walsh v. Dart (1868), 23 Wis. 384. » But see Haiker v. Anderson (1839), 31 Wend. (N. T.) 372. *Bishopv. Dexter (1818), 2 Conr. 419; Pryor v. Bowman (1874), 38 la. 92; Light v. Kingsbury (187^), 50 Me. 831; Beehe v. Brooks (1859), 12 Cal. 808. ^Swartz V. RedfieU (1874), 18 Kans. 550. ' Wilkins V. Jddis (1831), 2 B. & Ad. 188. ABT. 163.] DUTIES UF THE HOLDER. 163 Explanation 1. — When the payor is a trader, and Reasonable the bill is payable at his place of business, reasonable hours mean the ordinary business hours of his trade/ Illustkations. 1. Bill accepted payable at a bank. It must be presented during banking hours.^ 3. Bill drawn on a merchant is presented for payment at his counting-house at 6.30. This may be a reasonable hour.' 3. Bill payable at the private residence of the payor is pre- sented for payment at 8 p. ra. This is a reasonable hour.* 4. Bill payable generally is presented for payment at 11 p. m. at the acceptor's private residence. This is an unreason- ble hour.' Note. — The reasonableness of the hour must depend on ■whether the payor's place of business is also his residence. He is not bound to stay at his place of business after the usual ,hour. When a bill is payable at the payor's residence, proba- bly a presentment up to bed-time would be sufficient.' Explanation 2. — When presentment is made at an unreasonable hour, but payment is refused on some other ground, the bill is deemed to have been duly presented.' Illustration. Bill payable at hank is presented after banking hours to the cashier, who is found at the bank, and he merely replies, " no funds." This is a due presentment.' ^Elford V. Teed (1818), 1 M. & S. 28; Cf. Startup v. Macdonald (1843), 6 M. & Gr. at 624; Allen v. Edmundson (1848), 2 Exch. at 723. ''Id.; Parker v. Gordon (1806), 7 East, 385; Bank v. Carneal (1829), 2 Pet. 543; Cf. WTiitaher v. Bank (1835), 1 C. M. & R. 750, banker's duty to pay, see next Bxpl. ^Morgan v. Davison (1815), 1 Stark. 114; Cf. Barclay v. Bailey (1810), 2 Camp. 527 (8 p. m.). Ha\je business hours changred since then? * Triggs v. Newnham (1825), 10 Moore, 249; Wilkinsr. Jadis (1831), 2 B. & Ad. 188; Cf. Farnsworth v. Allen (1855), 4 Gray (Mass.), 453 (9 p. m.). ^Dana v. Sawyer (1843), 22 Me. 244; Cf. Umt v. Adams (1840), 17 Me. 230 (8 a. m.). 'Skelton v. Dustin (1879), 92 III. 49. ''Eenry v. Lee (1814), 2 Chitty. 124; Garneti v. Woodcock (1817), 6 M. & 8. 44; Danav. Sawyer, supra. ^Salt Spring Bank v. Burton (1874), 58 N. Y. 430; Bank v. HolUster 164 BILLS OF EXCHANGE. [abt. 164. 'Bywhoin. ' Art, 164. Presentment for payment must be made by the holder of a bill, or by some person authorize^ to receive the money on his behalf.' Cf. Art. 236. Exception.— PxesQutmsnt through the post-office may be sufficient.^ Note. — As to who must make the presentment preliminary to protest, see Art. 177, n. J)uties of Agent. — A collecting agent is, of course, liable to his principal if he does not use due diligence in presenting a bill for payment and take the proper proceedings oa dishonor.' The same rule applies to a pledgee or person holding a bill as collateral security.* An agent is, as a rule, responsible for the default of a sub-agent whom he employs; and it is accordingly held that a bank receiving a bill for "collection, whether pay- able at its counter or elsewhere, is liable for any default occurring in its collection, whether of the officers and immediate servants, or other agents of the batik or its correspondents, or agents employed by such correspondents, including the notary, at least in the absence of any usage or agreement to the con- trary;* but other authorities holding this rule admitan exception when the sub-agent is a notary, on the ground that he is a public officer and the agent of the holder.^ On the other hand, it is held by some courts, that the duty of the collecting bank (1858), 17 N. T. 46; Shepherd v. Chamherlin (1857), 8 Gray (Mass.), 225; First Nat. Bank v. Uwen (1867), 23 la. 185; Beed t. Wilson (1879), 41 N. J. L. 29. • ^Leftley v. Mills (1791), 4 T. E. at 175; Walker v. Macdonald (1848), 2 Exch. at 532; Cf. Cole v. Jessop (1854), 10 N. Y. at 100; Shed v. Brett (1823), 1 Pick. (Mass.) 401. ' ^Heywood v. Pickering (1874), 9 L. R. Q. B. 428 at 432; Pier v. Eein~ richshoffen (1877), 67 Mo. 163; C£. Prideaux v. Criddle (1869), 4 L. R. Q. B. at 461; Windham Bank v. Norton (1852), 22 Cona. 214; Indig r. Nat. City Bank (1880), 80 N. Y. 100. Bat see Stuekert v. Anderson (1837), 3 Whart. (Pa.) 116. «Cf. Lysaght v. Bryant (1850), 19 L. J. C. P. at 160, Maule. J., and Art. 147, n.; Mechanics' Bank v. Bank (1843), 6 Met. (Mass.) 13. * Peacock v. Purcell (1863), 32 L. J. C. P. 266; Briggs v. Parsons (1878), 39 Mich. 400; Maimey v. Coit (1879), 80 N. C. 300 ^AyrauU v. Bank (187i), 47 N. Y. 570 at 573; Allen ' 2 & 3 Will. 4 c. 98 (1832); Daniel, % 935. ^Bothschild v. Currie (^1841), 1 Q. B. 43; Bouquette v. Overman (1875), 10 L. R. Q. B. 525; Carter v. Burley (1838), 9 N. H. 558; Thomson, p. 308; Pothier, No. 155; Nouguier, § 1270; Cf. Art. 202. ART. 181 .] DUTIES OF THE HOLDER. 179 Protest to Charge Drawer and Endorsers. Art. 181. When a foreign bill of exchange' is dis- Protest-wheo 1 • 111 ir> necessary. honored it must be duly protested lor non-acceptance or non-payment, as the case may be, in order that the holder may preserve his right of recourse against the drawer and indorsers.'' Explanation 1. — When a bill of exchange is dis- honored by non-acceptance, and the holder, without lawful excuse, omits to protest it, the drawer and in- dorsers ate discharged as regards such holder, and all subsequent holders, with notice that the bill has been so dishonored; but the drawer and indorsers are not discharged as regards a subsequent holder for value who takes the bill before it is overdue, and without notice that it has been dishonored.' Msplanation 2. — When a bill of exchange has been dishonored by non-acceptance, and duly protested, there may be a subsequent protest for non-payment at maturity.* Note. — Qu. if such subsequent protest is not necessary in some cases, at any rate for the purpose of recourse abroad? See, too, Art. 185. As before pointed out (Art. 157, n.) under the Continental Codes, no right of action arises onnon-aocept- ance; the holder can demand security from the antecedent parties, but he is bound to re-present the bill at maturity. A foreign note need not be protested,^ nor need an inland bill or note;' nor a " foreign " check.'- Statutes, however, have been ' Art. 24, foreign bill defined. " Gale v. Walsh (1793), 5 T. R. 239; Ocean Bank v. Williams (1869), 102 Mass. 141; Cf. Whitehead v. 'Walker (1842), 9 M. & W. 606; Ex parte Lowenthal (1874), 9 L. R. Ch. at 593. = Cf. Dunn v. O'Keefe (1816), 5 M. & S. 282, Ex. Ch.; and Art. 191. < Campbell v. French (1795), 6 T. R. at 211-212, Ex. Ch.; Cf. White- head V. Walker (1842), 9 M. .fe W. at 516. * Bonar v. Mitchell (1850), 5 Exch. 415 at 417; Burke v. McKay (1844), 2 Hot. (U. S.) 66. ' WindleY. ^«dre«>s(l819), 2B. &Ald. 696; Knotty. Fe«o6Ze (1868), 42 Ala. 186; Smith v. CurUe (1871), 59 111. 221. ' Pollard V. Bowen (1877), 57 Ind. 232. But see Daniel, % 1600. 180 BILLS OF EXCHANGE. [arts. 182-84. Protest— when passed in many states allowing a protest on such instruments, necessary. ^^^ giving to it the like effect as in case of foreign bills of ex- change. Excuses for Art. 182. Protest is dispensed with by circutn- and"Se?a|! stances wliicli would dispense with notice of dishonor in the case of an inland bill; and delay in protesting is excused by circumstances which would excuse de- lay in giving notice of dishonor.^ Note. — Protest is waived by a waiver of presentment for payment.^ As to notice of dishonor, see Arts. 300, 201; and Of. Arts. 168, 169 as to excuses for non-presentment for pay- ment, or delay in presentment; see Art. 131 as to indorse- ments waiving protest, and Art. 165, n., as to protest of lost bill. Protest for Better Security. Better security. Art. 183. When the acceptor of a bill of exchange becomes bankrupt before its maturity, it may be pro- tested for better security.^ Note. — Under some of the foreign codes, when the acceptor fails, security can be demanded from the drawer and indors- ers. See e. g., German Exchange Law, Art. 39. In England this cannot be done, and the only effect there of such a protest is that there may be an acceptance supra protest (Art. 41). lu France if the acceptor fails the bill may be at once treated as dishonored and protested for non-payment: French Code, Art. 163, and JSTouguier, § 1277. Presentment when there is a Reference in Need. Holder's duty Art. 184. When a bill of exchange is dishonored to present. tit by non-acceptance or by non-payment, and the drawer of such bill has given a reference in case of need (Art. ' Legge v. Thorpe (1810), 12 Bast, 171; see e. g., Campbell v. Wehster (1845), 15 L. J. C. P. 4, and Mayer's Appeal (1878), 87 Pa. St. 129 (waiver): Rothschild v. Carrie (1841), IQ. B. at 47 (delay). ^Jaccardv. Anderson (18&5), 37 Mo. 91. 'Ex parte Wackerlath (1800), 5 Ves. Jr. 574; Daniel, § 530; Chitty, p. 237; Brooks'' Notary, 4th ed. p. 88; for a form, see p. 219. ARTS. 185-87.J DUTIES OF THE HOLDER. 181 7), the holder must (perhaps) present the bill for ae- Hoider-a duty ' \j., i / J. to present. ceptaace or payment supra protest in order to pre- serve his right of recourse against the drawer and in- dorsejs.' When the reference in case of need is given by an indorser, presentment for acceptance or payment supra protest is (probably) optional.^ Note. — When a reference in need is given by the drawer, presentment in accordance therewith seems to be part of the original contract. It is like the case of a bill drawn payable at the house of some person other than the drawee. Again, in the case of a foreign bill, how is the question affected by the fact that presentment is obligatory according to the law of the place where the bill is drawn? By French Law, when a refer- ence in need is given by the drawer, the holder is bound to pre- sent, but when the reference is given by an indorser it seems he has an option: Nouguier, § 249-350. By German Ex- change Law, Art. 62, presentment is in both cases obligatory. Art. 185. A bill of exchange must be duly pre- Duty to prote« sented for payment to the drawee or acceptor and men™ ''°'' noted or protested for non-payment before it is pre- sented for payment to the acceptor supra protest' or referee in case of need.* Note. — As to protest, see Arts. 175 to 180. If the holder omit to protest he cannot sue the acceptor supra protest; on the other hand, if the case of need pays without a protest, he pavs at his own risk.^ As to acceptance supra protest, see Arts. 41-48. Art. 187. When a bill of exchange is dishonored Dishonor by ; hy \h& accQT^toT supra protest it must (probably) bep^'es*. '^*"'™ ^Pothier, No. 137, and the languag-e of 6 & 7 Will. 4, o. 58; Of. Arts. 4S and 243; expressly required by proposed N. Y. Civil Code (driift of 1888), § 2883. 2 Cf. Leonard v. Wilson (18-34), 2 Cr. & M. 589 at 595, and pa.isim Ex parte Prange (1865), 1 L. R. Bq. at 5. ^Hoarev. Ca^ejiowe (1812), 16 East, 391; Cf. Williams v. Germaine (1S27), 7 B. & 0. at 475-477; Baring v. Clark (1837), 19 Pick. (Mass.) • 220; German Exchangre Law, Arts. 62 and 88. ^ Geralopiilo y. Wieler {1851), 20 L. J. C. P. 510; Cf. German Ex- change Law, Arts. 62 and 88. *Art. 241. \Bi BILLS OF EXCHANGE. [aets. 188-89. Dishonor by again protested in order to- charge the other parties accpptbr supra , . , , , protest liable thereon.' ~ Notice of Dishonor to Charge Drawer and Indorsers, fiTottce of dis- Art. 188. " Notice of dishonor " means notification honor means ' . ™ i . notification. ()f (Jishonor, *. 6. formal notice. Explanation. — The fact that the drawer or indorser of a hill knows that it has been. dishonored does not dispense with the necessity for giving him notice of dishonor.' Note. — Pothier (No. 147), speaking of protests, lays dowu a similar rule: "laraison est que les formalit^s 6tablies par les lois pour donner & quelqu'un la connaissanoe de quelque fait, ne se suppl6ent point, etne s aocomplissent pas par^quip- poUence." As regards notes and inland bills, notice of dis- honor is the English substitute for protest.* As regards for- eign bills notice of dishonor is supplementary to protest. Un- der French Code, Arts. 165-166 (modified by law of , May 3, 1863, of. JVouffuier, §§ 1086-1099) and German Exchange Law, Arts. 45-47, notice of protest must be given within certain definite limits of time. See pi>st, Art. 195. whenneces- Art. 189. When a bill is dishonored/ due notice of dishonor, unless excused, is a condition precedent to the liability of the drawer or any indorser thereof.' Explanation. — Due notice of dishonor means notice given in accordance with Arts. 192 to 199. ^ cutty, p. 242; Nouguier, §§ 1320-1321. No English decision; Cf. WHliams v. Germame (1827), 1 M. & Ry. 403; German Exchange Law, Arts. 62 and 89; Brooks' Notary, 4th ed. p. 108. ''Burgh v. Legge (1839), 5 M. & W. at 422, Alderson B.; Carter v. Flower (1847), 16 M. & W. at 749, Parke, B. '^Miers V. Brown (l843), 11 M. & W. 372; East v. Smith (1847), 16 L. J. Q. B. 292; Juniata Bank- v. Hale (1827), 16 Serg. & E. (Pa.) 157) Lane v. Bank (1872), 9 Heisk. (Tenn.) 419; Cf. Count v. Thompson (1849), 18 L. J. 0. P. 125. *Solarte v. Palmer (1833), 7 Bing. at 533. 'Arts. 156 and 170. 'Berridge v. Fitzgerald (1869), 4 L. R. Q. B. at 642; Rowev. Tipper ■ (1853), 22 L. J. C. P. at 137, Maule, J. ARTS. 190-91.] DUTIES OF THE HOLDER. 183 Tllusteation. When neces- Bill drawn by A. and indorsed by G. is dishonored. Due no- tice is given to C, but none is given to A. The holder can sue C, but he cannot sue A.;' nor has C. any remedy over against A." Note. — The holder's duty is fulfilled by giving notice to the parties he intends to look to. If they in turn give notice to other parties, he may take, advantage of it; but their omission to do so cannot prejudice him. Art. 190. Subject to Arts. 191 and 258, the omis- consequenoeoi . , , „ . . - . omission to. sion, Without lawiul excuse, to give due notice oisi^j notice of ' ' " dishonor. dishonor to the drawer or any indorser of a bill, discharges such drawer or indorser from his liability on the instrument, and also from any liability on the consideration for which it was given. ^ NoTB. — The omission of the holder of a note payable in in- stalments, to give notice of the non-payment of an instalment discharges the indorser from liability for such instalment only.* Under French Code, Arts. 168-170, the omission to give due notice of protest discharges the indorsers, but the drawer is not discharged unless he can show that the drawee had sufficient effects in his hands when he dishonored the bill. Under Ger- man Exchange Law, Art. 45, the omission to give due notice of protest dep ives the holder of his right to interest an,d dam- ages, but he can still recover the amount of the bill, unless his omission has caused actual damage. Art. 191. When a bill of exchange is dishonored Biii dishonored by non-acceptance, and due notice of dishonor is not ano" Tna'Se- quently negoti- given to the drawer or an indorser thereof, such ^'^"^ drawer or indorser is discharged as regards the holder at the time of dishonor, and all subsequent holders with notice thereof;^ but such drawer or indorser is not discharged as regards a subsequent holder for 'Cf. Eickford v. Ridge (1810), 2 Camp, at 538, ^Miers v. Brown (1843), 11 M. & W. 372. 'Bridges v. Berry (1810), 3 Taunt. 130; Peacock v. Purcell (1863), 14 C. B..N. S. 748; Cf. Phoenix his. Co. v. Allen (1863), 11 Mich. 501. ^Fitchhurg Ins. Co. v. Davis (1876), I'^l Mass. 121. ^Roscowv. Hardy (1810), 12 East. 434; Bartlett v. Benson (1845), 14 M. & W. 733; Cf. Smith v. Roach (1846), 7 B. Mon. (Ky.) 17. 184 BILLS OF EXCHANGE. [art. 192, Bill dishon- ored, etc. Notice of dis- honor, by whom to be given. value wlio takes the bill before it is overdue and with- out notice that it has been so dishonored.' Art. 192. Notice of dishonor must be given (a) by or on behalf of the holder,^ or {b) by or on be- half of an indorser who, at the time of giving it, is liable on the bill, and who has a right of recourse against the party to whom notice is given." Illusteatiosts. 1. A bill indorsed by 0. and held by D. is dishonored. X., ■who was at one time employed by the drawer to get the bill discounted, but is not in any way acting on D.'s behalf, in- forms G. that the bill has been dishonored. This is not suiE- cit-nt; 0. is discharged.* 2. 0. is the first indorser of a dishonored bill held by D. D. gives notice to 0. one day late. C, on the same day, gives notice to the drawer, thus, as it were, making up for the lost day. This notice is ineffectual; for C. having been discharged by the holder's delay, is a mere stranger.^ 3. A bill indorsed by 0. is held by D. D.'s attorney gives notice of dishonor to the drawer, but by mistake gives it in C.'s name instead of D.'s. The notice is sufficient, provided C. is liable to D., and has a right of recourse against the drawer.' 4. C., the indorser of a bill, holds it as agent for the in- dorsee. C. presents it for payment, and it is dishonored. No- tice of dishonor given by 0. in his own name is sufficient.' ^Dunnv. O'Keefe (1816), 5 M. & S. 282, Ex. Ch.; Gf. Whitehead v. Walker (1842), 9 M. & W. 506; .spe, too. Art. 133, n. 2 Cromer v. Plait (1877), 37 Mich. 1.82. See e. g. Firth v. Thrush (1828), 8 B. & C. 887 (notice given by holder'^ attorney) ; Viale v. Michael (18741, HO L. T; N. S. 468 (by notary's clerk): Bank of Utica v. Smith (1820), 18 Johns. (N. Y.) 230 (by notary); Bank v. Vaughan (1865), 36 Mo. 90 (by cashier of collerting bank); Martin v. Ingersall (1829), 8 Pick. (Ma.is.) at 6 (by acceptor supra protest); Cowperthwaite v. Sheffield (1848). 1 S indf. (N. T.) 416 (by pledgee of note). 'Chapman v. Keane (1835), 3 A. & E. 193: Chnnoine v. Frnvler (1829), 3 Wend. (N. T.) 173; Stortj> § 304: Cf. Burgh v. Legqe (1839), 6 M. & W. at 420, and Harrison v. Ruseoe (1846), 15 M. & W. at 234, 236, Parke, B. *■ Stewart v. Kennett (1809), 2 Camp. 177; Cf. East v. SmUh (1847), 16 L. J. Q. B. 292. ^ Tm:ner v. Leach (1821), 4 B. & Aid. 451. ^.Harrison v. Euscoe (1846), 15 M. & W. 231. ''Lysaghtv. Bryant (1850), 19 L. J. C. P. 160 ART. 193.] DVTlEii OF THE HOLDER. 186 Explanation 1. — A party entitled to give notice may Notice of dis- constitute the drawee or acceptor his agent for thewhom'tobe I o given, ^ purpose of giving notice of dishonor.' Exphnation 2. — Notice of dishonor may be given by an agent either in his own name or in the name of any party entitled to give notice whether that party be his principal or not.'' Explanation 3. — If the holder be dead, notice of dishonor may be given by his personal representa- tive." Art. 193. Notice of dishonor may be given by them what man- party entitled to give it either person ally_, or by"'' messenger or other agent,* or through the post-office." Explanation 1. — Subject to Explanation 2, the sender of the notice is bound to show that it was actually received by the proper party (Art. 198) in due season, and if so received, the manner in which the notice was. given is immaterial.* Explanation 2. — When the person giving notice, and the party to whom notice is to be given, reside at the time of dishonor in different post-office dpliveries, or in the same place, but where the carrier system prevails, due notice of dishonor is deemed to have ' Eosher v. Kieran (1814), 4 Camp. 86, as explained by Harrison v. Buscoe, (1846), 15 M. & W. 231; Cf. Glasgow v. Pratte (184:^), 8 Mo. 336 at 337; First Nat. Bank v. Ryerson (1867), 23 J a. 508; Bailey v. Bodenham (1864), .S3 L. J. C. P.. at 256, Erie, J.; see Stanton v. Blos- som (1817), 14 Mass. 116. where drawee had no authority, and notice was held bad. Cf. Act. 196 ^ Harrison v. Ruscoe, supra. « White V. Stoddard (1858), 11 (Jray (Mass.), 258; Cf. Art. 198, Expl. 8. «Cf. Banh^. Lawrence (1828), 1 Pet. (U. S.) 578; Pearson v. Crallan (1805), 2 J. P. Smith. 404, as to mespenger's expenses. ^Stoclcenv. Collin (1841), 7 M. & W. 515; Cf. Art. 201. «Cf. Cabot Bank v. Warner (1865), 10 Allen (Mass.), at 524; First Nat. Bank v. Wood (1879), 51 V^t. 471; Van Vechten v. Prui/n (1856), 13N. Y. at555. ./ ^ ;• 186 BILLS OF EXCHANGE. [aut. 193. in what man- jjeeti giveti thougli \>j the delay or default of the post- office, never received, if the holder prove that a letter containing the notice was duly addressed and posted/ Illustrations. Due notice is deemed to have been given, if the letter is duly addressed, in the following cases: 1. C, first itidorser, D., second indorser, and E., holder. E. residing in Xville, where bill is payable, deposits notice in Xville P. O. addressed to D., residing in Yville." 2. D. and E. reside in Xville, but the bill is payable in Yville. E. delivers notice addressed to D. to the letter carrier on his route at Yville." 3. D. and E. reside in Xville. D. is accustomed to receive his mail at one P. O. in Xville and E. at another, and there is a regular mail between the two offices. E. deposits notice in one oiEce addressed to D. at the other.* 4. C. and D. reside in Xville, and E. in Yville, where bill is payable. E. mails at Yville a letter to D. enclosing notices of dishonor to him and to C. D., upon receipt 6i the letter, de- posits the notice to 0. in the P. O. at Xville." 5. D. and E. reside in Xville, where the carrier system is established. E. deposits notice addressed to D; in a street , post-office box." Ottierwise unless actually received in the following cases: 6. E. resides in Xville, and D. in Yville, where the note is ^ Cabot BanTcv. TFamer (1865), 10 Allen (Mhss.) 522: i^'orftes v.. OmuAa Nat. Bank (1880), 10 Neb. 338. See Woodcock v. Houldsworth (1846), 16 M. & W. 124, (delay); Jlfacfraiyv.J^Mrfifcm.s (1858), 1 F. &F. 208, (loas), Byles, J.; Eenwick v. Tighe (18'6C)). 8 W. R. 391. As to address, UawTces v. Salter (1828), 4 Bing-. 715; Cf. Skilhech v. Garhett (1845), 7 Q. B. 846. ^Munn V. Baldwin (1810), 6 Maes. 316; Shed v. Brett (1823), 1 Pick. (Mass.) 401. . ^ ^Wvnen v. ScHapperf (1818), 6 Daly (N. T.) 558; Cf. Price \. Me- GoUrick (1876), 2 Abb. N. C: (N. T.) 69. * Shatflor v. Mix (1862), 4 Allen (Mass.J, 351. s Eagle Bank v. Hathaway (1842), 5 Met. (Mass.) 212; Van Brunf . V. Vaughan (1877), 47 la. 145; Cf. Art. 19^, Expl. 5,' and Art. 198, n, ■ « Shoemaker v. Bank (1868), 59 Pa. St. 79; Walters v. Brotrn (1859), -, 15 Md. 285, and Greenwich Bank v. DeGroot (1876), 7 Hun (N. Y.), 210; '■<' Mechanics'' Bank v. Crow (1874), 5 Daly (N. Y.), 191. ART. 194. 1 DV TIES OF THE HOLDER. 187 payable. B. upon making due demand at Yville, deposits no- inwhatmau- tice addressed to D., in the P. O. at Yville.' 7. E. resides in Xville. D. also resides in Xville, and re- ceives his mail at the Xville P. O., but his residence is outside of the corporate limits, and some ten miles from the office. E. deposits n6tice addressed to D. in the P. O. at Xville.' Note. — The mail may always be used with this effect in Eng;land, as the carrier system everywhere prevails.' The sufficiency of the direction on the letter is a. question of reasonable diligence. If the drawer or indorser has a place of business the notice should be addressed to him there; if ha has not, then it should be addressed to him at his residence, and the party giving notice is bound to use reasonable dili- gence to discover such place of business or residence.* No- tice sent to the address given by an indorser is sufficient to charge him,' and in England it is held that the drawer will be charged in any case by notice sent to the place of date of the bill.'" But in America the sender is nevertheless bound to use due diligence in ascertaining the drawer's true residence at the time of dishonor.' The sender may, however, presume that the drawer or indorser's residence at the time of drawing or in- doising remains unchanged.* German Exchange Law, Art. 47, provides that when an indorser does not state his address, notice may be sent to the indorser who precedes him. Art. 194. Notice of dishoiior given by or on be- ror whose ben- efltnotieeen- ^ Bowling v. Harrison (1847), 6 How. (U. S.) 248; Of. Peiree v. Pew-""^* dar (1842;, 5 Met. (Mass.) 352. Contra, Philipe v. Halerlee (1872), 45 Ala. 597; Cf. Tomeny v. Bank (1872). 9 Heisk. (Tenn.) 493. 'Forbes -v. Omaha Nat. Bank (,1880), 10 Neb. 338; Cf. Shelhurne Bank v. TownsUy (1869), 102 Mass. at 182. Contra, Barret v. Brans (1859), 28 Mo. 831; Bank v. Lawrence (1828), 1 Pet. (U. S.) 578; Timtns V. Delisle (1840), 5 Blackf. (Ind.) 447; Cf. Gist v. Lyhrand (1828), 3 0. 308. 'Bigelou), p. 309; British Code, § 49 (15). ^Berridqe v. Fitzgerald (1869),'4 L. R. Q. B. 639; Bank v. Bender (1839), 21 Wend. (N. T.) 643; Herbert v. Servin (1879). 41 N. J. L. 225. See e. g., Roberts v. Taft (1876), 120 Mass. 169; Burlinganie v. Foster (1880), 128 Mass. 125; Central Bank v. Levin (1879). 6 Mo. Ap. 543; Greenwich Bank v. DeGroot (1876), 7 Hun (.N. T.), 210. '' Eastern Bank Y.Brown (1840), llMe. 356; Bartlett v. Robinson (1868), 39 N. Y. 187. 'Burmester v. Barron (1852), 17 Q. B. 828; C!f. Ex parte Baker (1877), 4 L. R. Ch. D. at 799, C. A. ''Lowery v. Scott (1840), 24 Wend. (N. T.). 358; Pierce v. Strathers (1856), 27 Pa. St. 249; Mason v. Pritchard (1872), 9 Heisk. (Terni.) 793. 8 Requa v. Collins (1872), 61 N. Y. 148; Knott v. Venalle (1868), 42 Ala. 1^6. uies, 188 BILLS OF EXCHANGE. [am. 195. Forwhose ben- half of the holder enures for the benefit of (a) all efit notice en- ^ ' subsequent holders, and {b) all prior indorsers liable on the bill who have a right of recourse against the party to whom notice is given.' Notice of dishonor given by or on behalf of an in- dorser entitled to give notice/ enures for the benefit of the holder and all indorsers liable on the bill who haTC a right of recourse against the party to whom notice, is given.' Note. — In New York it has been held that notice duly sent by the holder does not enure for the benefit of a prior indorser, unless it reaches the party to whom it is sent, but the. circum- stances of the case were somewhat special.* See Art. 191 for a case where an indorser might be liable on the bill, and yet not able to avail himself of a notice of dishonor given by an- other, or to give one himself. ■Notice of dis- ■ Art. l95. Notice of dishonor may be given by or honor, when to j a j be given; qj^ behalf of the holder as soon as the bill has been dishonored,^ and it must be given within a reasonable time after dishonor." Explanation 1. — Reasonable time is a mixed ques- tion of law and fact.' Explanation 2. — In determining what is a reason- able time, non-business days must be excluded/ 1 Byles, p. 290, 291; Stafford v. Yates (1820), 18 Johns. (N. Y.) 327; WAlliams v. Matthews (1824), 3 Cow. (N. Y.) 262. ' ^ Cf. Art 192. ' Chapman v. Keane (1885), 8 A. &E. 193; Lysaght-v. Bryant (1850), 19 L. J. C. P. 160; Streeter v. Fort Bank (186&), S4 N. Y. 413; * Beale v. Parish (1859), 20^ N. Y. 407. ^ Burhridge v. Manners (1812), 3 Camp. 193; Ex parte Moline (1812), 1 Rose, 303; Farmers' Bank. v. Duvall (1835), 7 G. & J. (Md.) 78; King V. Crowell (1873), 61 Me. 244; Jackson v. Richards (1805), 2 Gaines (N. Y.)84:j; Cf. Art. 171. ^Hirschfield v. Smith (1866), 1 L. R. C. P. at 351; Gladwell v. Twr- «er(1870), 5 L. R. Ex. at 61. ' Id. ; Cf. Bank v. Swann (1885), 9 Pet. (U. S.) at 46; Wyman v. Adr OOTS (1858), 12 Gush. (Maf3s.)at 213,-214; Arts. 150,162. 'Eagle Bank v. Chapin (1825), 3 Pick. (Mass.) 180; Gf. Farmers'' Bank v. Vail (1860), 21 N. Y. 485; Hallowell v. Curry (1861), 41 .Pa. St. 322; Lindo v. Unsworth (1811), 2 Gamp. 601, Jewish sacred testival. ART. 195.1 DUTIES OF THE HOLDER. 189 Explanation 3. — When the person giving notice Notice of ais- T .1 , , 1 r .■ ■ . 1 ■ 1- . honor, when to and the party to whom iUotice is to be given hve mbe given. the SRme place, the notice must, in the absence of special circumstances, be received by such party at a reasonable hour' on the day after the sender became entitled to give notice.^ Exception. — In such cases within Art. 193, Expl. 2, the notice must be sent off in time by due course of mail to reach the party to be notified on the day after the sender became entitled to give notice.' , Explanation 4. — Subject to the foregoing excep- tion, if the case is within Art. 193, Expl. 2, and no- tice is given through the post-office, the notice must, in the absence of special circumstances, be sent off on the day after the dishonor of the "bill, if there be a post at a reasonable hour on that day;* and if there be no such post on that day, then by the next post thereafter.* Explanation 5.— If the case is within Art. 193, Ex;pl. 2, and notice is not given through the post- office, the notice must, in the absence of special cii'- cumstances, be received at a reasonable hour on the same day it would have been received by due course of mail.* ° ^John V. Banh (1876), 57 Ala. 96; Adams v. Wright (1861), 14 Wis. 408; Jameson v. Swinton (1810), 2 Taunt. 224; C!f. Cabot Bank v. War- ner (1865), 10 Allen (Mass.), at 524. 2 Cf. Gladweh v. Turner (1870), 5 L, R.' Ex. at 61, Martin, B. ' Smith V. Mullet (1809), 2 Camp. 208; Hilton v. Fairclough (1811), 2 Camp. 601; Cf. Walters v. Brown (1859), 15 Md. at 292. * William!, v. Smith (1819), 2 B. & Aid. at 500; Lawson v. Banh (1853), 1 0. St. 206. See, e. g., Stephenson v. Dickson (1854), 24 Pa. St. 148; Haskell v. Boardman (1864), 8 Allen (Mass.), 38; Vilest v. Brown (1856), 6 0. St. 542; Burgess v. Vreeland (1853), 4 Zab. (X. J.) 71. ^Hawkes v. Salter (1828), 4 Bing. 715; Lawson v. Bank (1858), 1 0. St. 206; Carter v. Burley (1838), 9 N. H. 558, at 570; Cf. Geill v. Jer- emy (1827), M. &M. 61. 'Bancroft v. Hall (ISie') 1 Holt, 476; Darhishire v. Parker- (1805), 190 BILLS OF EXCHANGE. [akt. 196. Notice of dis- Note. — Under French Code,, Art. 165, the holder of a dis- , Jg^^^^**^"'" honored bill must give notice of protest and commence pro- 'oeedings within fifteen days of the date of protest, if the drawer or indorser sougfht to be charged live within five myriametres. Extra time is given for extra distance. Thus, under Art. 166, as modified by the law of May 3, 1862, when a bill is payable in England the holder has one month for giving notice of pro- test and coramencing proceedings against a French drawer or indorser. The notice of protest and the summons (assignation en justice) are usually comprised in one document, Nougui&r, §§ 1088-1089. Under German Exchange Law, Art. 45, the holder must send off written notice of protest within two days after protest. 'Sight of party Art. 196. " A TDartv who receives due notice of the receiving no- ,. , f> i mi i c i • p |twithin™rea-'''"^®''^*'^^ ^^ ^ "^"- ^^^' ^"^'^ the receipt 01 suck iiotice, Bonabie time. ^^ same time for giving notice to antecedent parties that the original holder has after the dishonor of the bill/ Cf. Art. 195.- Illusteation. C, the indorser of a bill held by D., receives notice of dis- honor on Sunday morning. Sunday being a dies non, it is suflB- cient if C. send off notice to the drawer on Tuesday.^ Explanation 1. — When a bill is in the hands of an agent, the agent has the same time for giving notice to his principal that he would have if he were an in- dependent holder and his principal an indorser liable to him.' Illustrations. 1. A bill payable in London is indorsed in blank by the 6 East, 3; Cf. Jarvis v. St. Croix Co. (1843), 23 Me. 287; First Nat. Sank^. Wood (1879), 51 Vt. 471; Shelburne Bank v. Townsley {IB69), 102 Mass. at 183. ' Bray V. Hadwen (1816), 5M. &■ S. 68; Lawfon v. Bank (1S53), 1 0. St. 206; Manchester Bank v. Fellows (1854), 8 Fost. (N. H.) 302; Cf. Bowe V. Tipper (1853), 22 L. J. C. P. at 137; German Exchange Law, Art. 45; French Code, Arts. 167, 169. But see Freeman's Banky. Per- Tcins (1841), 18 Me. 292. 2 Wright v. ahawcross (1819), cited 2 B. & Aid. at 501; Dehlieux v. Billiard (1841), 1 Rob. (La.) 66. ' Lnieson v. Bank (1853), 1 0. St. 206; Howard v. Ives (1841), 1 Hill (N. Y.), 263; First Nat. Bank v. Smith (1882), 132 Mass. 227. /LKT. 196.] DUTIES OF THE HOLDER. 191 holder, and deposited with a country banker for collection. The Eight of party . J receiving no- country banker's London asjent presents it for payment and tioe to transfer 1 • ■ 1 • ,. • ? 1 mi 11 i' within rea- gives him due notice of its dishonor. Ihe country banker on B.,nable time. the day after the receipt of such notice gives notice to his cus- tomer, who in turn gives similar notice to his indorser. This indorser has received due notice.' 3. C. indorses a bill to the Liverpool branch of the D. Batik. The Liverpool branch sends it to the Manchester branch, and the Manchester branch indorses it to the head office in London, who presents it for payment. The head office sends notice of dishonor to the Manchester branch, the Manchester branch sends notice to the Liverpool branch, who gives notice to 0. Each branch, as regards time, is to be considered a distinct party." .3. X. pays a bill supraprotest for the honor of C, an indorser, who resides at Bruges, and the same day posts the bill to C. C. by return of post sends the bill back to X., who at once gives notice of dishonor to the drawer. Although six days have elapsed since the dishonor, the notice is in time, and X. can sue the drawer.' Note. — See contra, Ex parte Prange (1865),* where the authorities were not cited. Explanation 2. — When a bill is presented for pay- ment through the post-office, the drawee or acceptor is deemed to be the agent of the holder for the purpose of giving notice of dishonor,'' and has the same time for giving notice that the holder would have if he himself presented it," > Brmj V. Hadwen (1816), 5 M. & S. 68; Cf. Firth v. Thrush (1828), 8B. &C. 887. ' Clode V. Bayley (1843), 12 M. fe W. 51, apnroved Prince v. Oriental Bank (1878), 3 L. R. Ap. Ca. at 322, P. C; 'Cf. Wynen v. Schappert (1878), 6 Daly (N. T.), 258. ' Goodally. Polhill (1845), 14 L. J. C. P. 146. ♦ 1 L. R. Eq. 1. * Cf. Bailey v. Bodenham (1864), 33 L. J. C.P. at 255, Erie, J.; Wind- ham Bank v. Norton (1852), 22 Conn. 213. ^PHdeauss v. Criddle (1869), 4 L. R. Q. B. at 461; Cf. Heywood r. Pickering (1874), 9 L. R. Q. B. 428; Cf. Art. 192, Expl. 1. 192 BILLS OF EXCHANGE. [arts. 197-98 notice of dis- honor tore mote parties. , Notice of dis- ' honor, to whom to be given. Art. 197. The holder or other person entitled to give notice of dishonor must give notice to a remote party within the same limits of time that would suflSce in the case of an immediate party.' Illitstratiox. A dishonored bill drawn by A. is held by H., the tenth, in- dorsee. H. has no longer time to give notice to A. than he has to give notice to his immediate indorser — e- ot A\b- V. Dennis (1843),'' a case which- has been generally followed sUesta fcm." and approved, that the rule in America is more strict, and the cases seem almost, if not quite, in harmony with Solarte v. Palmer. The late case of Cromer v. Piatt (1877),' however, appears to support the Uter English doctrine. It is now well settled in England and America, contrary to Solarte v. Palmer, that thS/ mere fact of giving notice, is a sufficient indication that the party to whom notice is sent is called on to pay the bill.* Explanation 3. — A written notice of dishonor need not be signed,^ but the party notified must in some way be informed from whom it proceeds." Explanation 4. — An insufficient written notice may be supplemented and made valid by a personal com- munication.' Explanation 5. — When notice is given by personal communication,* or when a written notice is supple- mented by a personal communication,' the sufficiency of such notice is a question of fact. Illusteations. A person sent by the holder goes to the house of the drawer, who is not a trader, and not finding the drawer informs his wife that he has brought back the bill dishonored. The wife says she will tell her husband. This may be sufficient.'" 2. The holder's clerk goes to the drawer and tells him that iCf. East V. Smith (1847;, 16 L. J. Q. B. 292, sed qu.? 2 3 Met. (Mass.) 495. » 37 Mich. 132. ^ Chard v. Fox (1849), 14 Q. B. 200; Bank v. Carneal (1829), 2 Pet. (U. S.) at 552; Townsend v. Bank, (1835), 2 0. St. at 854. <■ Maxwell v. Brain (1864), 10 L. T. N. S. 301; Ci. Paul v. Joel, (1858), 27 L. J. Ex. 380. » Klockenhaum v. Fierson (1860), 16 Cal. 375; Walker v. Bank (1844), 8 Mo. 704. ''Houlditch V. Cauty (1838), 4 Bing. N. C. 411; Cf. Paul v. Joel, ^Metcalfe v. Richardson (1852), 11 C. B. 1011. » Houlditch V. Cauty (1838), 4 Biiig. N. C. at 419; Cf. Paul v. Joel, supra. ^"Housego v. Cowne (1837), 2 M. & W. 348. 198 BILLS OP EXCHANGE. [art. 200 Notloe of dis- his bill has been presented, and that the acceptor cannot pay SbMii to?S;' it. The drawer replies that "he will see the holder about it. This may be sufficient.' 3. A notary's clerk takes the bill, with the notary's ticket attached, to the drawer's office, and shows it to a clerk there. The clerk looks at it, says the drawer is out and has left no or- ders. The notary then leaves the usual notice that the bill is due at his office. This may be sufficient.^ ►' \ Excuses for not Art. 200. Notice of dishonor is dispensed with — giving notice ■■■ ofdishonor. ^^^ When the drawer or indorser sought to be charged is, as between the parties to the bill, the principal debtor, and has no reason to ex- pect that it will be honored on presentment. Illustrations. 1, A. draws a bill on B., who is under no obligation to ac- cept or pay it, and has not held out that he will do so. It is presented and dishonored. A. is not entitled to notice." '2. A. draws a bill On B. payable at his own house. B. ac- cepts it. Prima faeie this is an accommodation bill for A.'s benefit, and he is not entitled to notice.* 3. A. signs a bill as drawer in , order to accommodate the acceptor. A. is entitled to notice.^ 4. A., having a small balance in B.'s hands, draws on him for a larger sum. B. accepts, but does not pay. A. is entitled to notice." ' Metcalfe v. Richardson (1852), 11 C. B. 1011. 2 Viale V. Michael (1874), 30 L. T. N. S. 463. For further illustration, see Phillips v. Gould (1838), 8 C. & P. 355; East v. Smith (1847X 16 L. J. Q. B. 292; Chard v. Fox (1849), 14 Q. B. 200; Jennings v. Eoherts (1855), 24 L. J. Q. B. 102. 8 Biekerdihe v. Bollman (1786), 1 T. R. 405, and Smith's L. Ca. 7 ed. p. SO aiid notes; Claridge v. Dalton (1815), 4 M. & S. 225; Dickins v. Beal (1836), 10 Pet. (tj. S.) 572; Wirth v. Austin (1875), 10 L. R. C. P. 689; Welch Y. B. C. Mfg. Co. (1876), 82 111. 579. ^Sharpv. Bailey (1829), 9 B. & C. 44; Cf. Carter v. Floioer (1847), 16 M. & W. 743; Reid v. Morrison (1841), 2 W. & S. (Pa.) 401; Torrey V. Foss (1855), 40 Me. 74. • 5 Sleigh V. Sleigh (1850), 5 Exoh. 514; Cf. French v. Bank (1807). 4 Cranch (C. Ct.), at 160. ' Thackray v. Blackett (1812), 3 Camp. 164; Cf. Bagnall v. Andrems (1830), 7 Bing. at 223. AHT. 200.] • DUTIES OF THE HOLDER. 199 5. A., having a balance of $10 at his banker's, and having Excuses for not no authority to overdraw, draws a check for $50. A. is not of dishonor, entitled to notice.' 6. A. draws, B. accepts, and 0. indorses a bill in order to accommodate D., the second indorser. If the bill is dishon- ored, A. and 0. are entitled to notice.'' 7. A. draws and B. accepts a bill to accommodate X., who is not a party to it, but who is to provide for it. A. is entitled to notice of dishonor.' 8. A. draws, B. accepts, and C. indorses a bill in order to raise money for their joint benefit. A. and G. are entitled to notice.* Note. — Of.. Art. 90, accommodation bill defined, and Art. 168, excuses for non-presentment. The acceptor is the princi- pal debtor on the face of the instrument, but evidence, is ad- missible to show that he is in reality a mere surety, and that some other person is ultimately liable." As to French law, see Art. 190, n. , (2.) As regards the drawer, when drawer and drawee are the same person, or identical in interest.' Illustration. , A bill drawn by A. & Co. is accepted by B. & Co., the two firms having a common partner. A. & Co. are entitled to have the bill presented for payment,' but are not entitled to notice.' (3.) When the drawer or indorser sought to be charged is the person to whom the bill is pre- sented for payment. ' Carew v. Duckworth (1869), 4 L. R. Ex. 313; Cf. Hophirh v. Page (1822), 2 Brook. (C. Ct.) 20; Blanhenship v. Sogers (1858), 10 Ind. 383. ^ Cory V. Scott (1820), 3 B. & Aid. 619; Turner y. Samson (1876), 2 L. R. Q. B. D. 22, C. A. ; French v. Bank (1807), 4 Cranch (C. Ct.), at 161. ^Lafittiy. 5r?a«er (1830), 6 Bing. 623. *■ Foster v. Parker (1876), 2 L. R. C. P. D. 18. 'Cf. Cook V. Uster (1863), 32 L. J. C. P. at 127, per Willes, J. 'Art. 2, Exp]. 3; Porihouse v. Parker (1807), 1 Camp. 82; Ehetf y. Poe (1844), 2 How (U. S.), 457. ' Dwight V. Scovil (1818), 2 Conn. 654. 'JVcjc TorkRanhy. Selma Bank (1874), 51 Ala. 305; Cf. Fuller v- Hooper (1855), 3 Gray (Mass.), 334; West Bank v. Fulmer (1846), 3 Pa. St. 399. 200 , BILLS OF EXCHANGE. ^ , [akt. 200. Exfcusesfornot Il-LTJSTEA.TI01Sr. giviii'g notice of dishonor. The indorser of a bill becomes the executor of the acceptor. It is presented to him and he refuses to pay it. He is not en. titled to notice.' Note. — But this is doubtful. See Bigelow, p. 376, § 4. It may be remarked, however, that there are no cases necessarily opposed to the rule deduced from Gaunt v. Thompson. Clearly, presentment for payment is not dispensed with {Magruder v. Union Bank, see at 91), and in Juniaia Bank v. Hale, it does not appear that the indorser sought to be charged was the person to whom the note was presented for payment. (4.) When the drawee is a j&ctitious person, or (per^ haps) a person not having capacity to contract, and the drawer or indorser sought to be charged was aware of the fact at the time he drew or indorsed the bill.^ (5.) When the drawer or indorser sought to be charged has received an assignment of all the property of the acceptor as security against his liability.' Cf. Art. 168, cl. (3). Note. — This is justly questioned in Daniel, §§ 1130-1131. But it is submitted that the learned author's conclusion that the decisions rest upon the ground that the property was re- ceived for the express purpose of meeting the acceptor's liabil- ity, is erroneous. This distinction should be noticed : If the property is received for the express purpose of meeting the primary and absolute liability of the acceptor, then clearly no- tice is dispensed with, as he changes place with the acceptor and becomes himself the principal; * but if the property is re- ceived for the purpose of meeting Ms own liability, then it should be regarded only as security against a liability conditional on demand and notice, though held otherwise in the cases cited,^ on > Count v. Thompson (1849), 18 L. J. C. P. 125. But Cf. Juniaia Banh v. Hale 0827), 16 S. &R. (Pa.) 157; Magruder v. Union Bank (1880), 3 Pet. (U. S.) 87. ^ Leach v. Hewitt (1813), 4 Taunt. 731; Smith v. Bellamy (1817), 2 Stark. 223. But Cf . Wyman v. Adams (1853), 12 Cush. (Mass.) 210. ^Mechanics' Bank v. Griswold (1831), 7 Wend. (N. T.) 165; Barton V. Baher (1815), 1 S. & R. (Pa.) 334; Bond v. Farnsworth (1809), 5 Mass. 170; Cf. Spencer v. Harvey (1837), 17 Wend. (N. Y.) at 490. *Cf. Wilson V. Senier (lfi61),14 Wis. at 386, 387; Woodhuryv. Grant (1859), 1 Bliss. (C. Ct.) 284. ART. 200.] DUTIES OF THE HOLDER. 201, the ground that as the indorser has received all the aoceptor's Exeuaes for not property, demand would be fruitless. But in accordance with |f™4ouor.^ this reasoning, it is woUsettled that the mere receipt of a part of the acceptor's property as collateral security, whether the security is sufficient to meet the bill or not, does not dispense with demand and notice,^ though some courts hold the contrary where the security is sufficient and the indorser fully indemni- fied.2 (6.) When, after the exercise of reasonable dili- gence, notice of dishonor cannot be given to or does not reach the party sought to be charged.* Explanation 1. — Reasonable diligence is a mixed question of law and fact.* Illustrations, 1. The holder of a dishonored bill goes to the drawer's place of business during business hours to give him notice of dis- honor. He finds the place shut and no one there of whom to make inquiries. This may excuse notice.* 2. The holder of a bill duly addresses and posts a notice of dishonor. It is lost in the post. The drawer or indorser to whom it was sent is not discharged.' 3. The holder of a dishonored bill does not know the in- dorser's address. He makes some inquiry, but does not take the steps he reasonably might have done. The indorser is discharged.' ^ Kramer v.Sandford (1842), 4 W. & S. (Pa.).328; Creamer v . Perry (1885), 17 Pick. (Mass.) 332; Haskell v. Boardman (1864), 8 Allen (Mass.), 88; Taylor V. French (1855), 4 E. D. Sm. (N. Y.) 4-58; Wilson V. Senier (1861), 14 Wis. 880. ^Beveling v. Ferris (1849), 18 0. 170; Cf. Marshall v. Mitchell <1853), 3.5 Me. at 22.3. 'Allen V. Edmundson (1848), 2 Exch. at 723; Walker v. Stetson (1862), 14 0. St. 89. ^Banh of Utica v. Bender (1839), 21 Wend. (N. T.) 643; Unville v. Welch (1859), 29 Mo. 203; Walker v. Stetson, supra. But see Bate- man V. Joseph (1810), 2 Camp, at 462; Herbert v. Servin (1879), 41 N. J. L. 225 (fact). ^ Allen T. Edmundson, supra; Williams v. Bank (1829), 2 Pet. (U. S.) 96. 'Mackay v. Jud&ins (1858), 1 P. & F. 208, Byles, J.; Cf. Arts. 193 and 194, n, ''Beveridae v. Burgis (1812), 3 Camp. 262; Spencer v. Bank (1842), SHilKN. Y.). 5-iO. 202 BILLS OF EXCHANGE: [aet. 200. Excuses for not 4. A bill is accidentally destroyed before maturity. The S^dShonor?* holder gives notice of the fact to the drawer. At maturity the holder cannot obtain payment. He must give notice of dis honor to the drawer.' Explanation 2. — The fact that tlie drawer or in- dorser sought to be charged has reason to believe that the bill will, on presentment, be dishonored, does not dispense with, the necessity for giving him notice of dishonor.^ Illustratioit. The drawer or indorser of a bill has notice that the acceptor is bankrupt' or dead.* He is entitled to notice of dishqaor. Explanation 3. — The bankruptcy or death of the drawer or an indorser does not dispense with the necessity for giving notice of dishonor to him or his representatives.^ (7) By waiver express or implied. Explanation 1. — Notice of dishonor may be waived before the time for giving notice has arrived, or after the omission to give notice.' Illusteation's. 1. The drawer of a bill tells the holder before it is due that lie has no fixed residence, and that he will call in a few days to see if the acceptor has paid the bill. This waives notice.' 1 Tfiackray-v. Blachett (1812), 3 Camp. 164j Cf. Art. 165. 2 C£. Carew v. Duckworth (1869), 4 L. E. Ex. at 319; and Art. 188. ' Esdqile. v. Sowerhy (1809), 11 East, 114; Umitk v. Becket (1810), 13 Bast, 187; Juniata Bank v. Hale (1827), 16 S & R. (Pa.) 157; Cedar Falls Co. V. Wallace (1880), 83 N. C. 225; Cf. French Code, Art. 163. ^ Barton V. Baker (1815), 1 S. & R. (Pa.) 334; Cf. Cojunt v. Thomp- son (1849), 18 L. J. C. P. 125; Trench Code, Art. 163, Pothier, No. 147. ' Bhode v. Proctor (1825), 4 B. & C. 517; and Art. 198, ExdI. 8; Ex parte Tremont Bank, 16 Bankr. Reg, 397; Umalley v. Wright (l^^), 40 N. J. (L.) 471. » Cf. Cordery v. Colville (1863). 32 L. J. 0. P. 210; Sigerson v. Matthews (18hT), 20 How. (U. S.) 496; Armstrong v. Chadwick (1879), 127 Mass. 156. ' Phipson V. Kellner (1815), 4 Camp. 284; Cf. Burgh v. Legge (1839). 5M.&W. 418. w V _' ART. 200.1 DUTIES OF THE HOLDER. 203 2. The drawer of a bill orders the drawee not to pay it. Excuses for not giving notice This (probably) waives notice.' of dishonor. 3. The drawer of a bill informs the holder that it will not be paid on presentment. This (probably) waives notice.^ 4. Theindorserof a bill receives no notice of dishonor. Six weeks after the dishonor he meets the holder and promises to pay the bill. This is a waiver of notice.' 5. The indorser of a bill, knowing that no notice of dishonor has been given him, pays part of the amount. This is a waiver of notice.* 6. The indorser of a note, knowing that no notice has been given him, on being asked what is to be done about the note, replies, " The note will be paid." This is not a waiver of notice.' 7. A., the drawer of a bill, indorses^it to C, who indorses it to D. On the day of dishonor, but before the fact of dishonor could be known. A., knowing the acceptor to be insolvent, says to 0., " I suppose I shall have to take up the bill. If you will call with it in a few days I will pay it." D. gives no no- tice of dishonor either to 0. or A. D. cannot hold A. as in- dorser, as the language does not import an absolute promise to pay, but an unwillingness to pay coupled with the fear that he would be compelled to pay." 8. A., the drawer of a bill, indorses it to C, who indorses it to D. Some time after the dishonor. A., who has received no notice, is informed by C. that D., the holder, is going to sue him. A. says he will pay if D. will give him time. This is eTidence of waiver of notice.' Note. — Of. Art. 131, as to express waiver. Art. 168 cl. (6), waiver of presentment, ' Hill V. Heap (1823), D. & R. N. P. C. 57; Of. Havens v. Talhot (1858), 11 Ind. 323. » Brett V. Levitt (1811), 13 East, at 214; Cf. Minturn v. Fisher (1857), 7 Cal. 573; Taylor v. French (1855), 4 E. D. Sm. (N. Y.) 458. " Cordery v. ColviUe (1863), 32 L. J. C. P. 210; Rindskopfy. Doman (1876), 28 0. St. 516; Freeman v. O'Brien (1874), 88 la. 407; Givens v. Bank (1877), 85 111. 442. ' , * Knapp V. Runals (1875), 37 Wis. 135; Newherry v. Trowbridge (1865), 13 Mich. 264. = Creamer v. Perry (1835), 17 Pick. (Mass.) 332. ' Piekin V. Graham (1833), 1 Cr. & M. 725. , ' Woods V. Dean (1862), 32 L. J. Q. B. 1. See further, Lecann v. Kirkman (1859), 6 Jur. N. S. 17; North Stafford Co. v. Wythies (1861), 2 F. & F. 563; Kilby v. Rochusson (1865), 18 0. B. N. S. 357; Sheldon 204 BILLS OF EXCHANGE. [aut. 200. Excuses fOTnot Explanation 2. — Waiver of notice of dishonor in of dishonor. . favor of the holder enures for the, benefit of parties prior to such holder as well as subsequent holders. Illusteation. C. indorses a bill to D., who indorses it to E. If C. be sued by E., and let judgment go by default, he cannot set up want of notice of dishonor if he be subsequently sued by D.' Explanation 3. — Waiver of notice of dishonor by an indorser does not aflfect prior parties. Illusteation. C, the payee of a bill, indorses it to D. D. gives notice of dishonor to C. one day late. 0. waives the irregularity^ takes up the bill and gives notice to the drawer. C. cannot sue the drawer.^ Explanation 4. — A verbal waiver of notice may be revoked before the time for giving notice has expired.' Explanation 5. — An acknowledgment of liability must be made with full knowledge of the facts in order to operate as a waiver of notice of dishonor.* Illusteation. A bill is refused payment at maturity. The indorser prom- ises the holder to pay it, not knowing that it had been previously dishonored by non-acceptance. This is no waiver. Note. — Many of the cases fail to distinguish between ad- missions of liability, which are evidence of due notice having been received, and admissions of liability when due notice has not been given, and which therefore are evidence of waiver. The distinction is important.' V. Horton (1870), 43 N. Y. 93: Gove v. Vining (1843), 7 Met. (Mass.) 212; Bryant v. Wilcox (1874). 49 Cal. 47. ' Rahey v. Gilbert (1861), 38 L. J. Ex. 170. See Johnson v. Crane (1844), 16 N. H. 174; a. Art. 194. 2 Turner v. Leach (1821), 4 B. & Aid. 451; Cf. Art. 192. ' Second Nat. Bank v. McGuire (1877), 33 0. St. 295; S. C, 31 Amer. R. 539. * Goodall V. Dolley (1787), 1 T. R. 712; Thornton v. Wynn (1827). 12 Wheat. (U. S.) 183; Walker v. Sogers (1866), 40 III. 278; Third Nat. Bank v. Ashworth (1870), 105 Mass. 503; Bindskopf v. Doman (1876), 28 0. St. 516. ' ' As to what is evidence of due notice, see Taylor v. Jones (1809), " ART. 201.] DUTIES OF THE HOLDER. 205 Art. 201. Delay in giving; notice of dishonor is Excuses for de- , - . . lay in notice. excused when such delay is caused by circumstances beyond, the control of the party giving notice, and not imputable to his negligence. Explanation. — When the cause of delay ceases to operate, notice must be given with reasonable dili- gence.' Illustkations. 1. The indorser of a bill gives a wrong address, or by his conduct misleads the holder as to his address. In consequence a notice posted in due time is a long while in reaching him. The delay is excused and the indorser is liable.^ 2. The holder of a bill does not know the indorser's ad- dress. Delay occupied in making inquiries is excused.' Note. — For further illustration and authority see Art. 169, and Art. 193. This article is an obvious deduction from the general rule (Art. 195) that notice of dishonor must be given within a reasonable time. The old system of pleading recog- nized the difference between excuses for delay and excuses for non-notice.* When the delay is caused by the negligence of the party to whom notice is sent, it is conceived that though that party is bound he cannot give an effectual notice to ante- cedent parties.' Ooir due Bill. — In America it is held that when a bill is in- dorsed after its maturity, the indorser is entitled to have it Camp. 105; Hicks v. Beaufort (1888), 4 Bing. N. C. 239; Brownell v. Bonney (1841), 1 Q. B. 39; Ciirlewis v. Corfield (1841), 1 Q. B. 814; Campbellv. Webster {ISib), WL. J. C. P. 4; Mills v. Gibson {1841), 16 L. J. C. P. 249; Jackson v. Collins (1848), 17 L. .T. Q. B. 142; Bartholo- mew v. Hill (1862), 5 L. T. N. S. 756- As to what is not, Borradailev. Lowe (1811), 4 Taunt. 93;, Braithwaite v. Coleman (1835), 4 Nev. & M. 654; Bell v. Frankis (1842), 4 M. & G. 446; Holmes v. UtainesUSm, 3C.&K. 19. ^Firth V. Thrush (1828), 8 B. & C. 387; Gladwell v. Turner (1870), S L. R. Ex. at 61; McVeigh v. Allen (1877), 29 Grat. (Va.), 588; Cf. Art. 169. . ' Hewitt v. Thompson (1836), 1 M. & Eob. 543; Berridge v. Fitzgerald (1869), 4 L. R. Q. B. 639. '^Baldwin y. Richardson (1823), 1 B. & C. 245; Fugitt v. Nixon (1869), 44 Mo. 295. ^ Aliens. Edmundson (1848), 2 Exch. at 723. 'Cf. Shelton v. Braithwaite (1841), 8 M. & W. at 254-255. 206 BILLS OF EXCHANGE. [arts. 20!^8 Excuses for de- presented for payment, and to receive notice of dishonor with- 187 jn notice, jn a reasonable time, he in effect having indorsed a bill pay- able on demand ;' aliter, if an indorser take up a dishonored bill and re-issue it on his original indorsement, for his Habilitv is already fixed.^ The English law upon this subject was verj obscure, until the British ' Code, § 10 (3), which adopted the American rule. Under German Exchange Law, Art. 16, the indorser of an overdue bill incurs no mercantile engagement. Conflict ol laws. Art 202. Where laws conflict, the validity of a notice of dishonor, both as to form and time, is (prob- ably) determined by the law of the place where the notice is given.^ Illusteatiok. A., in England, draws and indorses to 0. a bill payable in Spain, 0. indorses it to D., in Spain. It is presented for ac- ceptance and dishonored. Fifteen days afterwards, D. gives notice of dishonor to C, who immediately gives notice to A. By Spanish law no notice of dishonor by non-acceptance is necessary (Cf. Art. 157 n.). C. is liable to D., and if he pays him, he can sue A.* Note. — It would be convenient to hold generally that the duties of the holder are to be determined by the law of the place syhere they are performed, but the cases certainly have not yet gone so far as this. Notice to ao- fleptor unneo- Nbtice to Charge Acceptor, Maker, or Strang&r. Art. 203. The acceptor of a bill is not in any case entitled to notice of dishonor/ ^Patterson v. Todd (1852), 18 Pa. St. 433; Eisenlord v. Dillenhaek (1878), 15 Hun (N,T.), 23; aff'd 79 N. T. 617; Ught v. Kingsbury (1872), 50 Mo. 331; McKewer v. Kirtland (1871), 83 la. 848; Cf. Art. 162. 2 St. John V. Rolerts (1865), 81 N. Y. 441; Cf. Uhhey v. Pierce (1867), 47 N. H. 307. "HirschfieldY. Smith (1866), 1 L. R. C. P. 340; Aymar v. Sheldon (1834), 12 Wend. (N. T.), 439: Nat. Bank v. Green (1871), 33 la. 140; Pothier, No. 155. Contra, Ellis v. Commercial Bank (1843), 7 How. (Miss.) 294; Cf. Art. 180. * Horne v. Eouqtieite (1878), 3 L. E. Q. B. D. 514, C. A. ^ Cf. Rowe V. Tipper (1858), 22 L. J. C P. at 137: Pearse v. Pern- lerthy (1812), 8 Camp. 261 (maker). AKT. 204.] DUTIES OF THE HOLDER. 207 Illustration. Notice to ac- ceptor unneo- B. accepts a bill payable at his banker's. It is presented esaary. there and dishonored. No notice need be given to B.' Art. 204. Notice of dishonor is not a condition Guarantor, precedent to the liability of a person who has given ' a guarantee for the payment of a bill by the acceptor. C£ Art. 173. Illustrations. 1. The indorser of a bill gives a bond to secure its payment Want of notice of dishonor is no defense to an action on the bond.'' 2. X. gives a guarantee for the price of goods to be sup- plied to the acceptor of a bill. X. is not entitled to notice of dishonor.' 3. X. gives a guarantee for the price of goods to be sup- plied to the drawer of a bill. X. is entitled to notice of dis- honor.* 4. X. guarantees the payment of a note, " if it be not duly honored and paid " by the maker. X. is not entitled to notice of dishonor.' Note. — In America the authorities conflict. No case has yet arisen calling for a decision on the necessity of notice to charge a guarantor of the contract of a party secondarily liable as drawer or indorser, but we cannot conceive how a guaran- tor could be held liable when the indorser whose contract he guaranteed has been discharged by failure to give notice to him of the acceptor's defaulti But why the guarantor should be held entitled to notice in such case, as held in Phillips' v. Astling,*' is not so clear." As .to the liability of a guarantor of. the contract of a party primarily liable as acceptor or maker, there are two classes of cases. (1) Notice to the guarantor is held a condition precedent to his liability, but it maybe given > Treacher v. Hinton (1821), 4 B & AW. 413. ^Murray v. King (1821) 5 B. & Aid. 165! E- <& M. Bank v. Kerche- val (1858), 2 Mich. 504. ^Holbroie v. Wilkins (1822), 1 B. & C. 10. *PhilUps V. Astling (1809), 2 Taunt. 206; Cf. Hitchcock v. Humfrey (1843), 5 M. & G. at 564. Sed qu.? see note infra. 5 Walton V. Mascall (1844), 18 M. & W. 72, see also at 452. 'Stss Bigelow, p. 140» ao8 BILLS OF EXCHANGE. [art. 205. Guarantor. at any time before suit. If, however, the guarantor is damaged by the delay in giving notice, he is discharged to the extent of the damage.^ (3) But b}' the weight of authority, notice is not a oopdition precedent to his liability, but the guarantor is discharged to the extent he is damaged by failure to give him reasonable notice of the principal's default.^ It is prudent to give a guarantor some notice. See Story, Notes, 7th ed. § 460. note, for a clear presentation of this subject. Person liable Art. 205. A person who is not a party to a bill, onconsi er ^^^ ^^^ .^ liable on the consideration for which it is given,' is (probably) entitled to notice of dishonor. Cf. Art. 174. Illtjsteations. 1. X. buys goods from D. to be paid for "byapprovea banker's bill." C, who is X.'s broker, obtains a banker's bill.pay- able to his own order arid indorses it to D. If the bill be dishon- ored, X. (probably) is not liable for the price of the goods unless he receives notice of dishonor.* 2. 0., the holder of a note payable-to bearer on demand,, transfers it to D., without indorsing it, to pay for goods sup- plied by D. If the note be dishonored, G. is not liable for the price of the goods unless he receives notice of dishonor.' NoTB. — ^It seems from the last cited cases ° that the same strict and teohnicaL notice of dishonor is not requisite to charge a person liable on the consideration as is requisite to charge a party liable on the bill. This is fair, for in the one case the liability is transfer-able, in the other it is not, and therefore all defenses between the parties can be inquired into. A distinc- tion might be drawn between persons liable on the considera- tion who have, and who have not, been holders of the bill.' ' Ge^ger v. Clark (1859), 13 Cal. 579; Crooks v. Tully fl875), 50 Cal. 254; Foote v. Brown (18411, 2 McL. (C. Ct.) 369; Cf. Bickford v. Gxbhs (1851). 8 Gush. (Mass.) at 15Q; IlsUv v. Jones (1858), 12 Gray (MasS.), 260. 'Brown v. Curtis (l849), 2 N. Y. 225: Second Nat. Bank v. Gaylord (1872), 34 la. 246; McDonald v. Scott (1871), 8 Kans. 25; Voltz v. Har- ris (1866), 40 111. 155; Gage v. Lewis (1873), 68 lU. 605; Newton W. Co. V. Diers (1880), 10 Neb. 284. SQf. Arts. 224, 225. * Smith V. Mercer (1867), 3 L. E. Ex. 51. Contra, Swinyard v. Bowes (1816), 3 M. & S. 62, not cited. ' Camidge v. AlUnly (1827), 6 B. & C. 373; Turner v. Stones (1848), 1 D. & L. 122; Roison v. Olimr (1847), 10 Q. B. 707, cases on country bank notes; Dayton v. Trull (1840), 23 Wend. (N. Y.) 845; Cf. Art. 225. "Id. at 881. ^ ' ' : AKT. 206.] DUTIES OF THE HOLDER. 209 Duties on Receiving Payment. Art. 206. It is the duty of the holder to deliver Duiyto give up up the bill when it is paid in due course, by or on behalf of the drawee or acceptor.' Cf. Art. 165. Exception 1. — Non-negotiable note." JEieception 2. — The person who was the holder of a bill is (perhaps) entitled to receive payment without giving it up, on proof of its destruction.' NoTis.— Cf. Art. 144 as to lost bills, and Arts. 27 and 29 as to the parts of the set. Griving up the bill is a concurrent condition, and not a condition precedent to payment. Grerman Exchange Law, Arts; 38-39, provides that the holder must take part payment it' it be offered. In that case he may retain ^ the bill, but must indorse upon it the amount he has received. ^Hansard v. Robinson (1827"), 7 B. & C. at 94; Otisfield v. Maylerry 0874), 63 Me. 197; Crowe v. Clay (1854), 9 Exch. 604, Ex. Ch.; Ocean Bank v. Fant (1871), 50 N. T. at 476; Crandall v. Schroevpel (1874), IHun (N. T.), 557; Arnold v. Dresser (1864). 8 Allen fMass.), 435; German Exchange Law, Art. 39; Cf. Jmesv. Broadhurst (1850), 9 C. ■ B. at 182, and Duncan, Fox <& Co. v. N. <& S. Wales Bank (1880), L. Jl. 6 App. Cas. at p". 18, H. L., as to payment by drawer or indorser; and Corner V. Taylor (1854), 10 Exch. 441; IVoodwardv. Pell (1868), 4 L.- R. Q. B. 55, lien for costs. ' Charnley v. Grundy (1854), 14 C. B. at 614; Cf. Art. 107. 2 Wright V. Maidstone (1855), 24 L. J. Ch. 623. See Art. 144, cl. (1.) 14 or pay. CHAPTEE VI. LIABILITIES OF PARTIES. Drmvee and Drawer. Duty to accept ^j-j; 208. The drawee of an unaccepted bill of or Bav. ■*■ exchange is not bound to accept or pay it unless he has, for valuable consideration, expressly or impliedly agreed so to do. If he has so agreed, his relations with the drawer are regulated by the terms of the particular agreement between them.' Exception. — Check on a banker.'' Note. — In some continental countries the duty to accept or pav bills arises from the mere relationship of debtor and cred- itor in a mercantile transaction;' whereas here there must be an agreement founded on consideration. Apart from some- thing special in the contract, it seems that the authority or ob- ligation to accept is not revoked by the death of the drawer,f while it is by notice of his bankruptcy; for this renders funds in the hatfds of the drawee no longer available for the payment of the bill, and incapacitates the drawer from fulfilling his part of the contract.' The bankruptcy of the drawee is not per se ' Chittif, p. 200; Cf. Goodwin v. Robarts (1875), 10 L. R. Ex. at 351, Ex. Ch.; see, e. g., Smith v. Brown (1815), 6 Taunt, at 344; Laing v. Barclay (1823), 1 B. & C. 398; Huntley v. Sanderson (1833), 1 Cr. & M. 467 (agent authorized to draw on principal; contract of indemnity); Siggs V. Lindsay (1813). 7 Cranch (C. Ct.),,500; Cumming v. SMnd (I860), 29 L. J. Ex. at 132 (implied agreement to let customer overdraw); English, Credit Co- v. Arduin (1871), 5 L. R. H. L. 64 (construction of credit); ~ ^ Art. 260; Cf. Goodwin v. Robarts, supra. " Pothier, No. 92; JNouguier, § 442; Belgian Code de Commerce, Art. 8. * Chitiy, p. 193; Story, § 250; Cutis v. Perkins (1815), 12 Mass. 206; Cf. Billings v. Devaux (1841), 3 M. & Gr. at 574.- Att.-Genl. v. Pratt (1874), 9 L. R. Ex. 140. ^Pothier, No. 96; Cf. Citizens' Banh v. New Orleans Bank (1873), 6 L. R. H. L. 852. Contra, in case of check, Roberts v. Corbin (1868), 26 la. 315. • - (210) AKT. 209.] LIABILITIES OF PARTIES. 211 a breach of contract with the drawer.' In France the engage- Duty to accept ment between drawer and drawee is held to be a contract of "'p^'^" " mandat," and their relations are regulated accordingly.'' Letter of Advice. — It is usual, but not necessary, lor the drawer to advise the drawee of drafts drawn on him by letter of advice.' Art. 209. When the drawee breaks his contract Measure of with the drawer by dishonoring his draft, the conse- against drawee, quences reasonably resulting from the breach of con- tract constitute the measure of damages/ Illustkatio ns. 1. A customer, having a balance of $200 at his banker's, draws a check for $100, or accepts a bill for $100 payable at his banker's. If this check or bill is dishonored he may recover substantial damages for the injury ta his credit, without prov- ing any actual loss.' 2. A., in a foreign country, draws on B., in England, under a letter of credit. B. dishonors his draft. A. may recover the r-e-exchange and notarial expenses which he has had to pay to the holder,' and also the cost of telegrams, etc., consequent on the dishonor.' Note. — Although an acceptor, as such, may not be liable for re-exchange, it is clear that the drawee, by accepting, cannot alter or escape from his special contract with the drawer; and this may be the ground of his liability for re-exchange, etc., when sued by the drawer. Cf. Art. 313, n. As to paying a draft contrary to instructions, see Twibell v, London Subur- ban BanJc.^ ' Re Agra Banh (1867), 5 L. R. Eq. 160. ' Pothier, Nos. 91-100; Bravard-Denwmgeat, '!thei.21Q; Code Civil, Art. 1984-2010. ' Arnold v. Cheque Bank (1876), 1 L. R. C. P. D. at 586.; Nouguier, §271-284. * Prehn v. Royal Bank (1870), 5 L. R. Ex. 92; Cf. IlsUi/ v. Jones (1858). 12 (Jray (Mass.), 260 (accommodation bill). ' RoUin V. Steward (1854), 23 L. J. C. P. 148; Cf. Gumming v. Shand (1860), 29 L. J. Ex. 129; Summers v. City Bank (1874), 9 L. R. C. P. 680; Roheris v. Corbin (1868), 26 la. 315. ' Walker v. Hamilton (1860), 1 DeG., F. & J. 602; Re General So. Am. Co. (1877), 7 L. R. Ch. D. 637. 'Prehn v. Royal Bank, supra. ' Twibell Y. London Suburban Bank, "W. N. (1869), Part I, p. 127. 212 BILLS OF EXCHANGE. [art, 210. Drawee and Holder. NopriTitybe- Art. 210. The drawee of a bill, as such, incurs no tween drawee ,.,.,. and holder, liability to the holder, and there is no privity of con- tract between them.' iLLUSTBATIOIf. A., having $100 at bis bankers', draws a check on them for that sum in favor of 0. The check is dishonored, C. has no remedy against the bankers.^ Note. — Similarly, when a bill is> accepted payable at a banker's, there is no privity between the drawer or holder and the acceptor's banker.^ In France, when the drawee has funds, drawing a bill operates as an assignment of them in favor of the holder, and creates a privity'between holder and drawee.* And it is held in America that where a bill is drawn for the whole of a particular fund, or for the entire indebtedness of drawee to drawer, it operates as an equitable assignment there- of, arid binds the fund in drawee's hands after notice of the assign men t.° Explanation.^ — Such privity may be created by agree- ment external to the bill, and the relations of the parties are then regulated by the terms of such agreement,' ^Hopkinson v. Forater (liHA), 19 L. R. Eq. 74; Chapman' -v. White- (1852), 6 N. T. 412; Chase v. Alexander (1^79). 6 Mo. Ap. 505; Wein- stock T. Bellwood (1876), 12 Rush. (Ey.), 139; First Nnt. Bank v. ^ BuluqueRy. Co. (18791, 52 la. 378; Ct. Vaughanv. Halliday (1874), 9 L. R. Ch..561; Exchange Bank v. Mice (1B71), 107 Mass. 37. 2 Id.; Schroeder V. Bank (1816\ 34 L. T. N. S. 735; Carrv.Nat. Bank (1871), 107 Mass. 45; Bank v. Millard (1869), 10 Wall. (U. S.,) 152; First Nat. Bank v. Whitman (1876), 94 U. S. 348; In re Mer- rill (1877), 71 N. T. 825; Cf. Griffin y. Kemp (1874), 46 Ind. at 175. Contra, whether check is for whole nr part of deposit, Roberts v. Corhin (1868), 26 la. 815; Union Nat. Bank v. Oceana Bank (1875), 80 111. 212; McGrade v. German Sav. Inst. (1877), 4 Mo. Ap. 330; Lestery. Given (1871), 8 Bush (Ky.). 357; Pease v. Landauer (1885), 63 Wis. 20. s mil V. Boyds (1869), 8 L. R. Eq. 290. * Bravard-Demangeat. 7th ed. 235; Nouguier,% 392-431. ^CL Mandeville v. Welch (1820), 6 Wheat. (U. S.) at 286; Zm/t. Pope (1843), 5 Hill (N. Y.). 413; Bank v. Bogy (1869), 44 Mo. 13; Gib- son V. Cooke (1888), 20 Pick. (Mass.) 15; Contra, Shand v. Du Buisson (1874), L. R. 18. Eq. 283. "Eobey v. Oliver (1872), 7 L. R. Ch. 695; Ranken v. Alfaro (1877), 5 L. R. Ch. D. 786. J ^ i' ART. 210.J LIABILITIES OF PAHTIES. 213 Illustrations. No privity be- tween drawee 1. B. gives A. an open letter of credit authorizing him to *°^ '^°''^"' draw to the extent of $10,000, and concluding " parties nego- tiating bills under it are requested to indorse particulars on the back hereof." A. accordingly draws a bill lor $500 in favor of C, who duly indorses the particulars on the credit. B. be- comes insolvent, and dishonors the bill on presentment. 0. can prove for $500 against B.'s estate.' 2. A. draws a bill on B. in favor of C, and remits funds to meet it. B. does not accept the bill, but he tells C. that he has received the funds and promises to pay the bill. B. does not pay the bill. No action on the bill can be maintained against B., the statute requiring acceptance to be in writing on the bill, but C. can sue B. for money received to his use.^ Note. — Letters of Credit. — A letter of credit, says Story, is " a letter of request whereby one person (usually a merchant or ' banker) requests some other person to advance moneys or give credit to a third person named therein for a certain amount, and promises that he will repay such sum to the person advanc- ing the same, or accept bills drawn upon himself for the like amount. It is called a general (or open) letter of credit, when it is addressed to all merchants or other persons in general; and it is called a special letter of credit, wheti it is addressed to a particular person by name, requesting him to make such advance to a third person." ' See the nature of a letter of Credit commented on by Lord Cairns in a case where it was held that a writing opening a credit for a particular sum does not of itself constitute an equitable assignment or specific ap- propriation of that sum, so as to create a trust. It is an under- taking that the person giving it will act as paymaster to the' person to whom it is given, up to a certain amount, on his per- forming the conditions set forth in it. It is usually operated bn by bills of exchange, but it may be operated on by checks, or simple demand of payment.* See an open letter of credit, distinguished from an ordinary or special credit by Brett, L. J.' ' Jfe Agra Brink (1867), 2 L. R. Ch. 891; Cf. Citizens' Bank v. N. 0. Bank (187-3), 6 L. R. H. L. 352. ''Griffin v. Weatherly (1868), 3 L. R. Q. B. 758. ' Story, §§ 459, et seg. . * Morgan v. Larivfere (1875), L. R. 7 H. L. at p. 432. ' And see note to British Linen Co. v. Caledonian Insurance Co. (1861), 4 Macq. H. L. at p. 109. « Union Bank of Canada v. Cole (1877), 47 L. J. C. P. at p. 109. 214 BILLS OF EXCHANGE, Labts. 211-12* Art. 211. Acceptor and Holder. The drawee of a bill of exchange be- Acoeptor's cou- hoMer. comes, by accepting it, the principal debtor thereon.'. As acceptor he undertakes that he will pay it accord- ing to the tenor of his acceptance.'' Note. — See the primary and absolute liability of an acceptor distinguished from the secondary and contingent liability of a drawer or indorser by Bayley, J.,^ arid Cresswell, J^* In the case of a bill accepted for value, the acceptor is frequently de- scribed as the principal debtor, and the drawer and indorser as. his sureties,' but as Lord Blackburn has pointed out, this is not an accurate expression. The drawer or indprser "'is not exactly a surety for the acceptor, or co-surety with those who are sureties for the acceptor, yet he stands in a position suf-' fioiently analogous to that of a surety" to entitle him to the equities of a surety, when the bill has been dishonored, though ' I not before.' As to the mutual relations of joint acceptors, who are not partners, see per Wilde, 0. J.' See, also, Arts. 38-40, as to general and qualified acceptances,, and Art. 173,' as to presentment for payment to charge acceptor. ' Acceptor's es- toppels. , Art. 212. The acceptor of a bill of exchange, by the fact of acceptance conclusively admits and war- rants to a bona fide holder — (1.) The ^existence of the drawer, the genuineness of his signature, and his capacity and author- ity to draw.* > Philpot V. Bryant (1828), 4 Binp. at 720. 2 Smifh V. Vertue (1860). 80 -L. J. C. P. 56; see at 60. per Byles, J. ; Of, Walton V. Mascall (1844), 13 M. & W. at 458, Parke, B.; Cf. French Code, Art. 121 ; German Exchange Law, Art. 23. = Rowe V. Tou^g (1820), 2 Bligh. H. L. at 467. * Jones V. Broadhurst (1850), 9 C. B. at 81. ^ See, e. g.. Cook v. Lister (1863), 32 L. J. C. P. at p. 127, perWilles, J. ; Eouguette v. Overmann (1875), L. R. 10 Q. B. at p. 536, per Coek- burn, C. J. « Duncan, Fox (& Co. v. N. S S. Wales Bank (1880), 6 App. Cas. H. L. at p. 19. ' Harmer v. Steele (1849), 4 Fxch. at 18. « Cooper \. Meyer (1830), 10 B. & 0. 46S; Nat. Park Sanh v. North Bank C1871), 46 N. Y. 77; Cf. Allen v. Kramer (1878), 2 Bradw. (111.,) 205 (check). ART. 212.] LIABILITIES OF PARTIES. 215 Acceptoi to^pels. IlluSTEATIONS. Acceptor's es- ■>Jp - 1, A bill purporting to be drawn by A. on B. in favor of C. is accepted by B. and then negotiated. B., the acceptor, cannot set up that A.'s signature is a forgery.' 2. A bill is drawn by A. on B. in favor of 0. C. alters the amount from $10 to $100, and then indorses it away. B. sub- sequently accepts it. B., notwithstanding his acceptance, may set up the alteration as a defense.' Note. — But this rule has been materially modified by hold- ing that this admission of the genuineness of the drawer's signa- ture is conclusive (1) only in favor of a holder who is not only bona fide, but who has not contributed by his own fault or neg- ligence to the loss or misled the acceptor into the belief that the signature was genuine," and (2) only in favor of a holder who took the bill after the acceptance.* A bona fide holder for value of a bill of exchange before ac- ceptance is not required to pay an additional consideration to the drawee for his acceptance in order to enforce it against him. The bill itself implies a representation by the drawer that the drawee is in funds to meet it, and the contract of the former is that the latter will accept and pay according to the terms of the bill; the subsequent acceptance constitutes an admission of the truth of the representation which the drawee and acceptor is not thereafter allowed to retract.^ (2.) In the case of a bill payable to drawer's order, tbe then capacity of the drawer to indorse," ^Cooper V. Meyer (1880). 10 B. & C. 468; Sanderson y. Collman (1842), 4 M. & Gr. 209; Goddard v. Bank (18501, 4 N. Y. 147; Howard V. Bank (1876), 28 La. An. 727; Cf. Orr v. Bank (1854), 1 Maoq. H. L. 513; Hortsman v. Henshaw (1850), 11 How (U. S.), l77: Peoria E. R. Co. V. Neill (1855), 16 III. 269. ^WTiite V. Gont. Bank (1876), 64 N. T. 316; Bank of Commerce v. Union Bank (1850), 3 N. T. 2.30; Redingtnn v. Woods (1873). 45 Cal. 406; Cf. Bwchfield v. Moore (1854), 23 L. .J. Q. B. 261 ; AUter, if drawer consent to alteration, Vt'ard v. Allen (1840), 2 Met. (Mass.) 53. 'Nat. Bankv. Bangs (1871), 106 Mass. 441 ; Cf. Ellis v. Ohio Trust Co. (1855), 4 0. St. 628. *MeKleroyY. Bank (1859), 14 La. An.'462. ^ Heuertematte v. Morris (1885), 101 N. Y. 63. 'Braithwaife v. Gardiner (184fi), 8 Q. B. 473 (bankrupt); Smith v. Marsack (1848), 18 L. J. C. P. 65 (marripd woman); Halifax v. Lyle (1845), 3 Esch. 464 (corporation not having power to issue bills). .216 , BILLS OF EXCHANGE. [akt. 212. Acceptor's es- but not the genuineness of his indorsement/ or * (apparently) his authority to indorse.^ NoTB. — The distinction between capacity and authority (Of. Art. 61) reconciles the cases. It is clear that capacity to draw must coincide with capacity to indorse, this being a question of status; while an authority to draw on behalf of another need not include an authority to indorse. The evidence, of course, may create an estoppel where the acceptance does not (Of. Arts. 81, 139). When the drawer of a bill payable to drawer's order is a fictitious person, it was said in some of the cases that the acceptor undertook to pay to an indorsement in the same handwriting as the drawer's signature;^ but in other cases, it was ^aid that the bill mig-ht be treated as payable to bearer.* (3.) (Probably) in the case of a bill payable to a third person, the existence of the payee and his then capacity to indorse,* though not the genuineness of his indorsement.' Note. — But if the forged indorsement was on the bill when issued by the drawer, the acceptor cannot set up the forgery in defense to the suit of a bona fide holder, since the forgery is the drawer's own. act, and the acceptor is entitled to charge him with the payment of the bill.' The point as to the admission of payee's capacity has not arisen fairly. The maker of a note warrants the then capacitj' of the payee, but maker and payee are immediate parties, while acceptor and payee are not. The acceptor, of course, may be estopped by the evidence: see Art. 139 as to fictitious payee; see, also, Art. 81 for cases where a man may be precluded Iroin saying that a false signature is not his own. 1 Beeman v. Duck (1843), 11 M. & W. 251 ; Canal Bank v. Bank (1841). 1 Hill (N. Y.), 287; Cf. Smith v. Chester (1787), 1 T. R. 654, and pas- sim. Bobaris v. Tucker (IJ'Sl), 16 Q. B. 560. ^Rohinsonv. Farroac (1817), 7 Taunt. 455 (bill- drawn and indorsed " per proe." without anthorityj; Garland v. Jacomb (1878). 8 L. R. Ex. 216, Ex. Ch. (bill drawn and indorsed by partner in non-trading firm without authority). 3 Cooper V. Meyer {\%i(S), 10 B. & C. 468j London <& S. W. Bank v. Wentworth (1880), L. R. 5 Ex. D. 96.' ^Beeman v. Dvck {18iB), 11 M. & W. at 256; Cf. Phillips v. Jm Thurn (1866), 1 L. R. C. P. at 471. 5 Bi/les. p. 202; Daniel, % 536; Cf. Drayton v. Dale (1823), 2 B. & C. 293 at 299. ^ /> o'Holt V. Boss (1873), 54 N. T. 472; Cf, Robarfs v. Tucker (1851), 16 Q. B. 560, Ex. Ch. ''Hortsmanv. Henshaw (1850), 11 How (U. S.), 177. ART. 213.J LIABILITIES OF PARTIES. 217 Art. 213. The acceptor of a bill of exchange who Damages dishonors it is liable for- — oeptor. (1.) The amount of the bill with interest («) from the maturity thereof if the bill be payable on a day certain,' or {b) from the time of present- ment for payment if the bill be payable on demand.' Explanation. — Interest in the nature of damages may, if justice require it, be withheld wholly or in part,' and when a bill is expressed to be payable with interest at a given rate, interest as damages may or may not be given at the same rate as interest proper.* Note. — While the American authorities do not directly deny this doctrine, yet many cases hold that the holder is entitled to recover interest after maturity at the rate expressed in the bill, apparently on the ground that it is a part of the contract of the parties.' Other cases hold that he is entitled to recover only legal interest at place of suit," whether it be -more or less than the rate specified.' As to interest proper see Art. 13, Expl. 4. The bill must be produced at the trial to entitle the plain tiff to ^LitTigov. lAjon (1805), Coop. Ch. Ca. 29; Laing v. Stone (1828;, 2 M. & Ry. 562; Cf. Ayer v. Tilden (1860), 15 Gray (Mass.), at 183. 2 Re East of Enq. Banking Co- (1868), 4 L, R. Ch. 14; Patrick v. Clay (1815), 4 Bibb (Ky.), 246; Cf. Rens^ Factory v. Reid (1825), 6 Cow. (N. Y.) 589. But see PuUen v. Chase (1841), 4 Ark. 210 (from date). 'Lakig v. Stone, (1828), 2 M. & Ry. 562; see, alsoe. g.. Dent v. Dunn (1812), 3 Camp. 296, (tender): Murray v. East India Co. (1821), 5 B.- & Aid. 204, (holder dead and payment not derafinded); Phillips v. Frank- lin (1828), Gow. 196, (bill payable specially, no demand at place of pay- ment proved); Cf. Bann v. Daly ell (1828), M. & M. 228; Ayer v. Til- den, (IS60), 15 Gray (Mass.), at 183; Owsley v. Greenwood {1S72), 18 Minn. 429., But Cf. Brannon v. Hursell (1873), 112 Mass. at 71. ^Keene v. Keerie ,(1857), 27 L. J. C. P. 88; Wehster v. British Em- pire C'c.'(1880), 15 Ch. D. at pp. 175, 176; see Ward\. Morrison {18^), Car. & M. 368 (rate reduced). * Cromwell v. Co. of Sac (1877), 96 U. S. 61, explaining Brewster v. Wakffield (1859), 22 How. (U. S.l 118; Brannon v. HurMl (1873), 112 Mass. %i; Monnett v. Sturges (mi), 25 0. St. 384; Kohhr • Cf. Fairdough v. Pavia (1850), 9 Exch. at 695, and Arts. 109, 119 220 BILLS OF EXCHANGE. [akt. 217. Who liable as 3. B. makes a note payable to C. or order. After it is issued D., to accommodate the maker, si^ns his name on the face of the note. D. is liable as an indorser.' 3. B. and C. are indebted to A. A. draws a bill for the amount on B., payable to his own order, and indorses it in blank. B. accepts the bill. C. also writes his name on the faoa of the instrument. If B. does not pay it, C. may be sued as indorser.' 4. A bill is drawn payable to drawer's order and accepted. C afterwards backs it with his signature. C is liable as in- dorser to subsequent parties, but parol evidence is not admis- sible to show that C. intended to be liable to the drawer in c:ase the bill was dishonored. Such an agreement, must be in writing to satisfy the statute of frauds.' 5. The dravver of a bill indorses it to C, who has under- taken to be answerable for the price of goods supplied to the acceptor. C. then indorses the bill back to the drawer. The drawer, in his character of indorsee, can sue C. as indorser.* Note. — What is the liability of a person who indorses in' blank a bill or note payable to order (Of! Illust. 3, siipra,) at a time when he is not the payee or holder? He is not strictly an indorser, but he is called a quasi-indorser, and his act an irreg- ular or anomalous indorsement. Without attempting to give the exact shades of difference which divide the American, courts on the question of his liability, the two leading views may be thus stated in brief: (1) In a few of the StateS' he prima facie incurs the liability of an indorser; but parol evidence is admissible of the intention of the parties, which, when ascertained, determines his liability.^ (2) But, by the " Ex parte Yates (1858), 2 DeG. & J. 191; Of. GwinnelU. HerheH (1836), 6 N. & M. 723. But see next note. ' Young v. Glover (1857), 3 .Tur. N. S. 637, Q. B. ; Cf. Jackson v. Hud- son (1810), 2 Camp. 447; Bigelowv. Colton (1859), 13 Gray (Mass.), iJ09; Dubois V. Mason (1879), 127 Mass. 37; Roberts v. Masters (1872), 40 [nd. 462i; Camden v. McKoy (1842), 3 Scam. (III.) 437; Thaeher v. Se v. Prouty (ISib), 9 Met. fMass.) 547; Witie v. Williams (1876), 8 S. C. 290; Steioartv. Hidden (1S68), l::j Minn. 431. ^FreaUey v. Fox (1829), 9B. &C. 130, but the executors must ac- count for the amount of the note as assets; Willinms on Executors, 7th ed.pp. 1310-1315; Cf. Mitchell v. Bice (1881), 6 J. J. Marsh. (Ky.) at 625. ^Lower. Peshetf (1S5S), 16 C. B. 500; Cf. Mitchell v. Rice.supra. * Richards V. Richards (18'Sl), 2 B. & Ad. 447; Of. Beecham v. Smith (1858), B.B. &E.442. ' As to France, see Nouguier, §§ 1061-1065. Qu. if German Exchange law, Art. 10, is a departure from the rule. 246 BILLS OF EXCHANGE. [akt. 2;9. waher or can- The liabilities of any party to a bill may in like holder. manner be released by the holder verbally and without consideration either before or after its maturity;' but such release if given before maturity is inoperative against a subsequent' holder for value who takeg the bill before maturity and, without notice," Illustrations. 1. The holder of a bill at maturity tells the acceptor that he renounces all claims against him and gives up the bill to him. The bill is discharged.' 3. The holder of a bill before it matures writes to the first indorser that he renounces all claim against him. The first and subsequent indorsers are (probably) discharged as regards such holder. The drawer and acceptor are not.* 3. The holder of a bill verbally agrees with the drawer that he will not exercise his right of recourse against him if a cer- tain event takes place. The event happens. The drawer is not discharged, for this is merely an oral agreement to vary the effect of a bill as drawn, and not an absolute waiver of the drawer's liabilities.^ 4. The holder of a bill strikes out the acceptor's signature, intending to cancel it. This is a waiver of the acceptance, and discharges the bill.* A^liter, if the cancellation be not appa- rent, Und the bill be negotiated to a holder for value before maturity.' ' Foster v. Dawber (1851), BExch. 839 at 851, 852, Parke, B.; Of. Cook V. Uster (1863), 32 L. J. 0. P. at 126; Abrey v. Crux (1869), 5 L. R. C. P. at 44, Willes, J. ; Pothier, Nos. 175-183. But see Crawford v. Mills- paugh (1816), 13 Johns. (N. Y.), 87; Harrison v. Close (1807), 2 .Johns,, (N. T.), 448; Kidder v. Kidder (1859), 33 Pa. St. 768; Smifh v. Bartholomew (1840), 1 Met. (Mass.) 276; Byles, 7th Am. Ed. p. *236,: Shar.swood's note. i 2 Of. Ingham v. Primrose (1859), 7 C. B. N. S. 82, and Art. 235. ' Whatley v. Tricker (1807), 1 ("amp. 35, and Foster v. Dawber, supra; Larkin v. Hardenbrook (1882), 90 N. Y. 333. * Pothier, Nos. ] 82,- 183; Nouauier, §§ 1048-1049; Ci. Delatorre v. Barclay (1814), 1 Stark. 7. ' Abrey v. Crux (1869), 5 L. R. 0. P. 37. 'Cf. Sweeting v. Halse (1829), 9 B. &C. at369; Tglesiasv. Bank (1877), 3L. R. G. P. D. 60. ' Ingham v. Primrose (1859), 7 C. B. N. S. 82. and Art. 138. AKTS. 240-41.] DlSCHABGES. 247 5. B. accepts the first part of a foreign bill drawn in a set Waiver or ean- of two, and sends it, as directed, to a bank to be held at the holder, disposition of the holder of the second. The drawer, who is the holder of the second part, farilins; to discount it, cancels it, and directs the bank to deliver up the first to.B. B. gets the first part and cancels his acceptance. B. is discharged, and if the drawer subsequently issue a fresh second part, the holder cannot sue B.' Note. — This mode of discharge, called in France " Remise volontaire," is recognized in all countries where the civil law is followed. Compare Art. 168,, clause 6, and Art. 200, clause 7, as to waiver of the holder's duties, and Art. 119, nl, as to striking out indorsements. Art. 240. The cancellation of a signature is joWwa cancellation facie evidence that the liabilities of the party whose signature is canceled have been discharged, but the cancellation may be shown to have been made by mistake, and is then inoperative.^ Payment for Honor Supra Protest. Art. 241. A bill which has been protested or Payment mpra noted for non-payment, may be paid supra protest for the honor of any party liable thereon.* It then ceases to be negotiable.* Payment supra protest must be duly attested by a notarial act of honor.^ ' Bamv. Denmstoun (1861), 6 Exch. 483. 2 Bretf V. Marston (1858), 45 Me. 401 ; Raper v. Bit-Heck (1812), 15 East, 17, acceptance canceled by referee in case of need. Wilkinson v. Johnston (1824), 3 B. & C. 428, indorRements canceled by riayor for hon- or. Novelli V. Bossi (1831), 2 B. & Ad. 757; Warwick v. Rogers (1842). 6 M. & Gr. 340, at 873, acceptance canceled by bank where payable; Prince v. Oriental Bank (1878), 3 L. R.'Ap. Ca. dih, P. C, note canceled by maker's banker. 'Geralopulo v. Wieler (1851), 20 L. ,T. C. P. 1(J5; Cf. Ex parte Wyld (1860), 2 DeG , F. & J. 642; Brooks' ISofary, 4th ed. 108-110; * Ex parte Swan (1868), 6 L. R. £q. 344; Nouguier, § 1026; Cf. Dea- con V. Stodhiirt (1841), 2 M. & Gr. at 320. 'Cf. Ex parte Wyld, supra; Brooks' Notary, 4th ed. 108-110; for forms, see pp. 226-228. 248 BILLS OF EXCHANGE. [ahts. 24SM4. Payment suprd NoTE. — Promissory notes are sometimes, though not often, P""^- paid supra protest. The "act of honor" is founded on a dec- laration by the payor or his ag;ent stating for whose honor he desires to pay. VsL-^ment supra protest is known in France as payment " par intervention," which expresses its nature. whomaypay Art. 242. A bill mav be paid supra protest by the acceptor supra protest, or reteree in case oi need, or (perhaps) by any other person, wHether a party liable on the bill, or not." Note. — By French Code, Art. 159, payment supra protest may be made by "tout intervenant," but this is interpreted to mean any person other than a party already liable on the bill.' The limitation! seems reasonable, having regard to the rights acquired by the payor. It is clear the acceptor supra protest can only pay for the honor of the party for whose honor he ac- cepted. ^French Code, Art. 159, and German Exchange Law, Art. 64, provide that if two or more persons offer to'pay supra protest, he whose payment will liberate most parties must be preferred. i Holder's obu- A.rt. 243. A holder who refuses to receive pay- ceiveVay^nt ment supva vrotest (perhaps) lose^ his right of re- forhonor. ^ . -^ , . \ ,, , i ,. course against the parties who would have been dis- charged thereby.* Note. — An object for refusing might be the prospect of gain on the re-exchange. Eights and Art. 244. The payor sw^rffl joro^es^ ou payment ot foi honor.^"^" the auiount of the bill and expenses, is entitled to receive from the bolder the bill itself and the protest.^ ' Cf. 6 & 7 Will. 4, c. 58; German Exchange Law, Art. 62. "Byles, p. 272. No decision in England. Sed contra. Smith v. Saw- yer (1867), 55 Me. 139. ' Nouguier, §§ 1004-1008. * Nouguier, § 1009; German Exchange Law, Art. 62. No English de- cision. ^German Exchanare Law, Art. 63; Cf. Art. 206; Denston v. Henderson (1816), 13 Johns. (N. Y.) 322. No decision in England, but such is the practice. AKT. 245.] DISCHARGES. 249 The payor supra protest by such payment is in- Eights and 1 -1 1 1 I • 1 1 11- PI duties of payor vested with both the rights and the duties of the '■<"'^™°'- holder as regards the party for whose honor he pays, and all prior parties liable on the bill to such party; but all parties subsequent to him for whose honor payment is made are discharged.' Illustration. A dishonored bill is held by the fifth, indorsee. If X. pays it supra protest for the honor of the acceptor, he acquires a right to re-imburseraent against the acceptor alone; if he pays for the honor of the first indorser, he can sue the first indorser and the drawer (provided they have due notice) and the ac- ceptor, but the second and subsequent indorsers are discharged,- Note. — Pothier, Nos. 113, 114, points out that the right of the payor is not, properly speaking, a right of action on the bill, but a right arising out of the quasi contract negotiorum gestorum, hence the payor cannot again negotiate the bill, or transfer his rights. Discharge of Surety by Dealings with Principal. Art. 245. Where the relationship of principal and Dischargeof surety exists between the parties to a bill, or the ™fn'2eaiin|a' , .,, . 111111. with principal. parties to a bill transaction, and the nolder, having notice thereof, engages to give time to or voluntarily discharges the principal, the surety or sureties are thereby discharged,^ unless the holder, in so doing, expressly reserves his rights against the surety or sureties, thereby preserving the remedy over.^ • Goociall V. PolUll a845), 14 L. J. C. P. 146, and Wood v. Fugh (1836), 7 0. pt. 2, 156, duties, e. a. notice of dishonor; Ex parte Swan (1868), 6 L. R. Eq. 344, rights; Of. Ex parte Wyld (I860), 2 DeG. F. & J. 642; French Code, Art. 159; German Exchange Law, Art. 63. '^Oriental Corp. v. Overend (1871), 7 L. R. Ch. 142, aflSrmed (1874), 7 L. R. H. L. 348. ^Owen V. Boman (1853), 4 H. of L. Cae. 997; Muiry. Crawford (1875), L. R. 2 Sc. Ap. 456, H. L. 250 ' BILLS OF EXCHANGE. Jabt. 245. Discharge of And the suretj or sureties are discharged pro tanto taindeaiings where the holder releases to the principal collateral with prmcipal. '■ '■ securities of the latter held to secure the payment of the bill.' Explanation. — Prirfva facie the acceptor of a bill is the principal debtor, and the drawer and indorsers are as regards him, sureties,, and the drawer of a bill is the principal as regards the indorsers, and the first indorser is the principal as regards the second and subsequent indorsers, and so on in order;' but evi- dence for the present purpose is admissible to show the real relationship of the parties, and itis immaterial that the holder was ignorant of the relationship when he took the bill, provided he had notice thereof at the time of his dealings with the principal.^ Illustrations. 1. The holder of a bill takes from the acceptor in lieu of payment a new bill payable at a future? day, to which the drawer V and indorsers are not parties. This discharges the drawer and indorsers.* 3. The holder of a bill for 1200 takes fronl the acceptor $100 in full discharge of his claim, but expressly reserves his rights against the drawer and indorsers (thereby preserving their rights against the acceptor).. The drawer and indorsers are not discharged.' 3. The holder of a bill for $100 accepts a composition of 10 cents on the dollar from the acceptor under the Bankruptcy 'See cases cited to Illust. 5, infra. ^ 2Cf. Cook^. Lister (1868), 32 L. J. C. P. at 127, per WUles, J. 'Ewin V. Lancaster (1865), 6 B. & S. at 577; Oriental Corp. v. Over- end, supra; Ee Goodwin ilSlQ), 5 Dillon (C. Ct.), 140; Guild v. Sutler (1879), 127 Mass. 886. 'Cf. Gould V. Robson (1807), 8 East, 576; Petty v. Cooke (1871), 6 L. K. Q. B. at 794; Okie v. Spencer (1836), 2 Whart. (Pa.), 253; Newfomb V. Rai^nor (1839). 21 Wend. (N. Y.) 108. 5 Muir V. Crawford (1875), 2 L. R. So. Ap. 456, H. L. ; Kemeorthy v. Sawtj'er (1878), 125 Mass. 28; Pannell v. M'Mechen (1819), 4 Har. & J. 474. AKT. 245.] DISCHARGES.^ 251 Act. The drawer and indprsers are only discharged to the ex- Discharge of tent of the sum received by the holder, for the acceptor is dis- tain dealings , J , , . /■ 1 1 with principal, charged by operation oi law.' 4. The holder of a dishonored bill enters into a binding agreement^ to give time to the first indorser. This discharges the subsequent indorsers, but not the drawer or acceptor.* But if any indorser consent to the extension of time,* or holder ex- pressly reserves his rights against him, he will not be dis- charged.^ 5. C. is the holder of a note for $200, signed by B. and X. C, knowing that X. signed merely to accommodate B. and as surety for him, delivers up to B. a colt worth $100, pledged as security. X. is thereby discharged to the value of the security.* 6. 0. is the holder of a joint and several note made by B. and X. X. signed merely to accommodate B., and as surety for him. C, knowing this, agrees for a consideration to give time to B. X. is thereby discharged.' ^Se Jacobs (1875), 10 L. R. Ch. 211; Cf. Tglesias v. Bank (1877), 3 L. R. C. P. D. 60; GmU v. Butler (1877), 12-2 Mass. 498; Burrill v. , Smith (1828), 7 Pick. (Mcass.) 291. But see Re McDonald (1876), 14 Bank Beg. 477; Phelps v. Borland (1886), 103 N. T. 406. ^Must be on valid consideration, M'Lemore v. Powell (1827), 12 Wheat. (U. S.) 554; Brooks v. Allen {lbl8). 62 Ind. 401; Irvine v. Adams (1879), 48 Wis. 469, and for a definite time, Ward v. Wick (1867), 17 0. St. 159; Hamilton v. Proutij (1880), 50 Wis. 592; Praiher v. Young (1879), 67 Ind. 480, and not mere delay in suing, though injurious. Carpenter v. McLaughlin (1879), 12 R. 1. 270; Converse v. Cook (1884J, 31 Hun (N". Y.), 417; Powers v. Silberstein (1885), 51 Super. Ct. J. & S. (N. T.) 321 (aocoiuniodation indorser). 'Claridge v. Dalton (1815), 4 M. & S. at 2.32; Hall v. Cole (1836). 4 A. & E. 577; Cf. Fawcett v. Freshwater (1877), 31 0. St. 637; Thomp- son v. Bowne (1876), 89 N. J. L. 2; Hopkins v. Gray (1879), 51 la. 340; Greene v. Bates (1878). 74 N. T. 333; Pratt v. Hedden (1876), 121 Mass. 116. ^Gloucester Bank V. Worcester {\9SQi), 10 Pick. (Mass.), 528; Treats. Smith{186e), 54 Me. 112; Baldwin v. Bo«7c(1831), 50. 273; Bowling v. Flood (1878), 1 Lea (Tenn.). 678. But see Broadway Bank v. Schmuck- er (1879), 7 Mo. Ap. 171, holding principle not applicable to a release of indorser. ^Clagett v. Salmon (1833), S Gill & .». (Md.) 314; Hagey v. Hill (1874), 75 Pa. St. 108; Ct. Paine v. Voorhees (1870), 20 Wis. .522. " Kii-kpatrick v. Howk (1875), 80 111. 122; Guild v. Butler (1879), 127 Mass. 386^ lues v. Bank (1864), 12 Mich. 361; Holland v. Johnson (1875), 51 Ind. 346; Cf. Union: Bank v. Cooley (1875), 27 La. An. 202; Bonney v. Bonney (1870), 29 la. at 452; Dunn v. Parsons (1886), 40 Hun (N. Y.), 77. Unless surrendered with X.'s cpnsent, Pence v. Gale (1873), 20 Minn. 257. ' Greennough v. McClelland (1860), 30 L. J. Q. B. 15, Ex. Ch.; Bar- ron V. Cady (1879), 40 Mich. 259; Wheat v. Kendall (1834), 6 N. H. 252 BILl^S OF EXCHANGE. [aht. 245. plBohargeof 7. C. is the holder of a joint and several note made by B. tain dealings and X. 0. knows t(iat X. signed as surety to accommodate B. B. pflijs 0. It turns out afterwards that this payment was a fraudulent preference. G. refupds the money to B.'s trustees. X. is not disohargeii by B.'s payment.' 8. A bill is accepted for the accommodation of the drawer- After it is due the holder is informed of this and then agrees to give time to the drawer. The acceptor is discharged.^ 9. A bill drawn by A. and accepted by B. is discounted with G. 0. subsequently discovers that the bill was drawn and accepted for the accommodation of X., who is not a party to the bill, but who is to provide for it. C. then enters into an agreement to give time to X. This discharges the acceptor of the bill.' 10. A note is made by a corporation and is indorsed by three directors in succession. It appears that they all agreed to indorse the note to guarantee the company's debt. They are liable inter se as co-sureties, and not in succession accord- ing to the order of their indorsements.* Note. — As regards the particular dealings with a principal which discharge the surety, there is no difference between an ■ ordinary surety and a surety on a hill, so it would be useless to multiply illustrations. In Farmers' Sank v. Bathhone (1853),^ it was held that the holder has a right to treat all the parties to a bill exactly as they appear on the instrument, and hence if he discharges the drawer, the acceptor is not thereby released, though the holder knew the bill to have been accepted for the drawer's accommodation; and that this was the rule in equity as well as at law. This harsh doctrine giving the holder the absolute right to treat parties according to their ostensible po- 504; Cf. Guild v. Butler (1879), 127 Miss. 386; MeCloskey v. Ind. Union (1879), 67 Ind. 86; Rose v. Williams (1870), 5 Kans. 483. ' Petty V. Cooke (1871), 6 L. R. Q. B. 790: Cf. Watson v. Poague j:i876), 42 la. 582. 'Ewinv. Lancaster (1865), 6 B. & S. 571; Meggett v. Baum (1879), 57 Miss. 'i2; Cf. Re Goodwin (1879), 5 Dillon (C. Ct.). 140; VaXley Bank V. Meyers, 17 Bank. Reg. 257; Parks'^. Ingram (1851), 2 Fost. (N. RX 283. Contra, Farmers' <& M. Bank v. Bathbone (185ii), 26 Vt. 19. ' Oriental Corp. v. Overend (1871), 7 L. R. Ch. 142; affirmed (1874), 7 L. R H. L. 348. \Maedonald v. Whitfield, (1883), 8 App. Gas. 783, P. C; as to admis- sibility of parol evidence to explain the transaction, see at p. 748. , ''26Vt. 19. See, also. Bank v. Walker (1823), 9 S. & R. (Pa.) 229; Murray v. Judah (1826), 6 Cow. (N. Y.) 484. ART. 246.J DISCHARGES. 253 sition on the bill, though in so doing he violate equities of which Disoha»geof he is well aware, was finally established in England as the rule ™™'y' ^^ of law,^ but the! contrary is the well settled doctrine in equity both in England and America, as shown by the cases cited supra. Clearly, such is the case where the bill was taken by the holder with the understanding that the apparent principal should be regarded according to his real position as surety.^ The authorities are uniform in applying this equitable principle to cases where, a surety signs a note as joint maker.^ Alterations. Art. 246. " Issue " means the first delivery of a bill issue defined. to a person who takes it as a holder for value and thereby acquires the right to enforce payment thereof.* Illustbations. 1. A. draws a bill on B., payable to his own order. B. ac- cepts the bill for value and returns it to A. The bill is issued.' 3. A. draws, B. accepts, and 0. indorses a bill payable to D. or order for D.'s accommodation. The bill while in D.'s hands is not issued, but if D. indorses and discounts it with E. it is issued." Note. — In England, under the provisions of the Stamp Acb the question as to when a bill has been issued is important, for a material alteration a/ifer issjue. avoids the bill entirely, and it is of no validity against a party who consents to the altera- tion, since it is a new bill and mugt be re-stamped. But if altered before issue, it is valid against parties who consent to the alteration.' In America this question as to issue is not material. See Art. 348 and Art. 319, n. ^Fenfumv. PococA; (1813), 5 Taunt. 192; Harrisonv. Courfauld {1832), 3 B. & Ad. 37. ^Stillwell V. Aaron (1879), 69 Mo. 539. ' Wheat V. Kendall (1834), 6 N. H. 504; Cf. Colgrove v. Tallman (1876), 67 N. Y. 95; Millerd v. Thorn (1874), 56 N; Y. 402. *Cf. Ex parte Bignold (1886), 1 Deac, at 735. ^Cardwell v., Martin (1808), 9 East, 190; Bathe v. Taylor (1812), 15 East, 412; Cf. Kennerly v. Nash (1816), 1 Stark. 452. 'Downes v. Richardson (1822), 5 B. & Aid. 674; Cf. Tarleton v. Shingler (1849), 7 C. B. 812; Whitworth v. Adams (1827), 5 Band. (Va.) at 342. '' Welter y. MaddocTcs (1811), 3 Camp. 1; Kennerly v. lHash (1816), 1 Stark. ^2; Dowries v. Eichardson (1822), 5 B. & Aid. 674; Sherrington 254 BILLS OF EXCHANGE. [art. 247. Ma,teriaT aifera- Art. 247. An alteration is material which, in any way alters the operation of a bill and the liabilities of the parties' as originally fixed thereby, whether the change be prejudicial or beneficial.' ILldstkations. 1. The following are material: — A particular consideration is substituted for the words value received; " or the date of a bill payable at a fixed period after date is altered, and the time of paymeirt thereby postponed ' or accelerated;* or the date of a check is altered;^ or a bill payable three months after date is converted into a bill payable three months after sight; ° or the sum payable is altered, e. g. irom $105 to $100;' or the specified rate of interest is altered, e.g. from 3 per cent, to 2^ per cent.;' or a bill payable "with lawful interest" is altered by add- ing the words "interest at 6 per cent.;" ' or "with interest" is added to a bill silent as to interest; "• or a non-negoti- V. Jermyn (1828), 3 C. & P. 374; See, too, Hamelin v. Bruch (1846), 9 Q. B. 806. ' ' Gardner v. Walsh (1^55), 5 E. & B. 83 at 89; Chisfn v. Toomer (1871), 27 Ark. 108; Franklin Ins. Co. v. Courtney (1877), 60 Ind. 134. Or per Brett, L. J., " which would alter the business effect of the instru- ment if used for any business purpose;" Suffell v. Bank of England (1882), 9 Q. B. D. 565, at p. 568; see the test suggested by Cotton, L. J., at pp. 574-575., Materiality is a question of law, Vance v. Lou-ther (1876). 1 L. R. Ex. D. 176; Stephens v. Graham (1822). 9 S. & R. (Pa.) 505; Cochran v. Neheker (1874), 48 Ind 460; Palmerv. Sargent (ISK), 5 Neb. 223. 2 Knili V. Williams (1809), 10 East, 431 ; Cf. Wright v. Inshaw (1842), 1 D. N. S. 802. But see Daniel, § 1394. '' Oufhwaite v. Luntly (1815), 4 Camp. 179; Hirschman v. Budd (1873), 8 L. R. Ex. 171; Wood v. Steele (1867), 6 Wall. (U. S.),80; Bnttonv. Dierker (1870), 46 Mo. 591; Rogers v. Voshurgh (1881), 87 N. Y. 228. * Master V. Miller (1793), 2 H. Bl. 130, Ex. "Ch.; Walton v. Hastings (1815), 4 Camp. 223; Broien v. Straw (1877), 6 Neb. 536. 5 Crawford v. West Side Bank (1885), 100 N. Y. 50. » Long V. Moore (1799), 3 Bsp. 155, n. ,.19I: ■?"k?1'''* ^- -S»-"<;A:I(]846), 9Q. B. 306; Savings Bank v. Shaffer (1879), 9 Neb. 1. But see Woolfolk v. Bank (1874), 10 Bush. (Ey.) 504; Schryuer v. Hawkes (1872), 22 0. St. 308; Smith v. Smith (1850), 1 B. ,.ln^"o^^; '^OT^'- (1827), 7 B. & C. 416; Cf. Moore v. Hutchinson (1879), 69 Mo. 429; Schneunnd v. Hacket (1876), 54 Ind.'248; Harsh v. i:/ejjper(1876), 28 0. St. 200. >x^. ^o, nmsn. y. nlK^lhi*"".!^ ^"'''^y (1853), 23 L. J. Q. B. 47; Cf. Ivory v. Michael (186.3), 33 Mo. 398; Brooks v. Allen (1878)^ 62 Ind 401. . -NT -^^'oA^H^- ■^'""' (1877), 37 Mich. 1; Schwarz v. Oppold (1878), 74 N. Y. 307; Lamar v. Brown (1876), 56 Ala. 235. ABT. 247.] DISCHARGES. 255 able bill is made negotiable; ' or a bill payable to " G. or or- Material altera, der" is changed to " C. or bearer;"^ or a particular rate of''°° * '^'^ exchange is indorsed ou a bill which does not authorize this to be done; * or a joint note is converted into a joint and sev- eral note;* or a new maker is added to a joint and several note;' or the name of a maker of a joint and several note is cut off ; ° or intentionally erased; ' or a material memorandum is cut off or erased; ' or a clause is added, waiving appraise- ment and exemption laws;' or the place of payment is altered, e. g. a bill is accepted payable at X. & Co.'s, and Y. & Co. is substituted for X. & Co.; '" or a place of payment is added without the acceptor's consent."- ^Bruce v. Westcott (1848), 3 Barb. (N. T.) 374; Johnsons. Bank (1842), 2 B. Mon. (Ky.)310; Slate v. S7)y,«o» (1869). 27 la. 420; Cf. 'Weyerhauser v. Dun (1885), 100 JN. Y., 150 rate after uuiturity). 2 Umon Bank v. Roberts (1878), 45 Wis. b73. But Cf. Flint v. Craig (1871), 59 Barb. (N. Y.) 319. 'HirschfleU v. Smith (1866), 1 L. R. C. P. 340. Cf. Art. 13. *Perring v. Hone (1826), 4 Bing. 28; Draper v. Wood (1873), 112 Mass. 315. ^Gardner v. Walsh (1855), 5 E. & B. 83; Cf. Clerk v. Blackstock (1816), Holt N. P. 474; Humphreys v. Guillow (1843), 13 N. H. 385; Lufit V. Silver (1878), 5 Mo. Ap. 186; Hamilton v. Hooper (1877), 46 la. 615; Whitmore v. Nickerson (1878), 125 Mass. ^^Q; .Crandallv. First Nat. Bank (1878), 61 Ind. 349 (surety added), but see Miller v. Finley (1872), 26 Mich. 249; Aldrich v. Smith (1877), 37 Mich. 468 (payee added). But see Wallace v, Jewell (1871), 21 0. St. 163. «Cf. Mason v. Bradley (1843), 11 M:. & W. 590; Gillett v. Sweat (1844), 1 Gilm. (111.) 475; Hall v. McHenry (1865), 19 la. 522. ''Nicholson v. ^cui^Z (1836), 4 A. & K. 675; Cf. McCramer v. Thomp- son (1866), 21 la. 244 (surety); Stoddard y. Penniman (1871), 108 Mass. 366. ^Benedict v. Cou-den (1872), 49 N. Y. 396; Wheelockv. Freeman (1832), 13 Pick. (Mass.), 165; Johnson v. Heagan (1843), 23 Me. 329; Wait V. Pomeroy (1870), 20 Mich. 425; PaZwer- M.Sargent (1876), 5 Neb. 223; Gerrish v. Clines (1875), 56 N. H. 9. ^Holland v. Hatch (1858), 11 Ind. 497j Cf. Taddiken v. Cantrell (1877), 69 N. Y. 597; Robinson v. Reed (1877), 46 la. 219. But see Holland \. Hatch (1864). 15 0. St. 464. ^"Tidmarsh v. Grover (1813), 1 M. & S. 735; Cf. Nazro v.' Fuller (1840), 24 Wend. (N. Y.) 374. But see American Bank v. Bangs (1868), 42 Mo. 450. " Calvert v. Baker (1838), 4 M. & W. 417; Burchfield v. Moore (lS5i), 23 L. J. Q. B. 261; Whitesides v. Bank (1874), 10 Bush (Ky.), 501; Mc- Coy r. Lochwood (1880), 71 Ind. 319; Cf. Hanbury v. Lovett (1868), 18 L, T. N. S. 366; Toomer v. Rutland (1876), 57 Ala. 379; Townsend v. Star Co. (1880), 10 Neb. 615. Qu. if acceptor consent, Walters. Cubley (1838), 2 Cr. & M. 151, and Cf. Mason v. Bradley, supra, at 594; but see GiVbs v. Mather (1832), 2 Cr. & J. at 262; Saul v. Jones (1858), 28 L. J. Q. B. 37, which show that the position of drawer and indorser is altered. 256 BILLS OF EXCHANaH. [akt. 24g. Material altera- 2. The following are immaterial: — A bill payable to C. or bearer is converted into a bill paya- ble to C. or order; ' or "or bearer" is added to the name of the payee of a note payable on a contingency;'^ or an indorse- ment in blank is converted into a special indorsement; ' or the words " on demand" are added to a note in which no time of payment is expressed; * or a bill addressed to B. and X., under the style of " B., X. and Co.," is accepted by them as " B. and X," and the address is afterwards altered to " B. and X." to' make it correspond with the acceptance; ° or an erroneous "due date" is added to a bill;" or a rate of interest void for usury is inserted,' or the descriptio personoB is erased from the signature of a bill, e. g. " B., Trustee of the X. Church.* " Effect of alter- Art. 248. A material alteration by the holder of ation on bill. _ _ •' ■ a bill, discharges all parties who do not consent there- to, from liability on the bill.' Illttstkations. 1. C, the holder of a note, makes an immaterial alteration. This in no way affects the right of C. or any subsequent holder to recover on the note, though the alteration was fraudulently made."" 2. C. makes a material alteration, e. g. adds " with interest " to the bill, believing the added stipulation was omitted by mistake. C. cannot maintain suit against any one on the bill, ^Attwood V. Griffin (1826), 2 0. & P. 368. Sed qu. ' Goodenow v. Curtis (1876), 33 Mich.. 6U5. 'See Art. 118. *Aldous V. Cornwall (1868), 3 L. R. Q. B. 573; Of. Art. 18. ^Farquar v. Southey (1826), M & M. 14; Arnold v. Jones (1852), 2 R. I. 345; Of. Smith v. Lockridge (1871), 8 Bush (Ky.), 425; Art. 37; ^Fanshaive v. Peat (1857), 26 L. J. PJx. 314. "•Patton v. Shanklin (1853), 14 B. Mon. (Kv.) 15; Of. Cation v. Simp- son (1838), 8 A. & 'E.lSe; Leonard v. Phillips (1878), 39 Mich. 182, ("annually" added to note payable "-with interest)." 'Hayes v. Btubaher (1878), 65 Ind. 27; Burlingamev. Brewster (1875), 79 111. 515; McGuinness v. Bligh (1874), 11 R. I. 94. 'Master v. Miller (1793;, 2 H. Bl. 130 Ex. Ch., 1 Smith, L. C, 7th ed. 871, and notes; Wade v. Withington (1861), 1 Allen (Mass.), at 562. ''Burlingamev. Brewster (1875), 79 lU. 515; MoyeY.Herndon (1855), 30 Miss. 110; Of. Miller v. Finley (1872). 26 Mich. 249; Commonwealth V. Bank (1867), 98 Mass. 12. AKT. 248.] DISCHARGES. 257 either as altered ■ or as it was before alteration,' unless the de- Effector altem- T - , , . , tiononblll. fendant authorized or assented to the alteration, e. g. by part payment with knowledge of the alteration.' 3. C, the payee of a note for $10, alters it into a note for $110, and transfers it to D., who takes it for value and without notice of the alteration. D. cannot recover of ' the maker, al- though there was nothing in the appearance of the note to ex- cite suspicion, and the negligence of the maker, in leaving blank spaces afforded the opportunity for the fraud.* 4. X. indorses for the accommodation of B. a note made by him payable to C. Before its issue B. makes a material alter- ation, e. g. inserts X.'s name as payee also, and delivers the note to 0. X. is discharged, and B. is liable as sole maker.* But if X. afterwards assent to the alteration, he is liable." 5. B. executes a note payable to G. and delivers it to X., who is C.'s agent. X., without authority, makes a material alteration before delivering it to C. B. is not discharged. The alteration was the act of a stranger (spoliation), and of no effect.' ^Vay V. Smm (1861), 1 Allen (Mass.), 477f Of. Burchfleld v. Moore (1854), 23 L. J. Q. B. 261; Bradley v. Mann (1877), 37 Mich. 1; Moore V. Hutchinson {ISIQ), 69 Mo. 429; Coliurn v. Webb (1817), 56 Ind. 96. 2 Citizens' Bank v. Richmond (1876), 121 Mass. 110. Contra, Worrall v. Gheen (1861), 39 -Pa. St. 388; Myers v. Nell (1877), 84 Pa. St. 369 at 873. ^ Evans v. Foreman (1875), 60 Mo. 449; Goodnpeed v. Cutler (1874), 75 111. 534; Stoddard v. Penniman (1873), 113 Mass. 386; Stewart v. Bank (1879), 40 Mich. 848. Aliter, in England under Stamp Act, see Arts. 219, n. and 246, n. * Greenfield Bank vi. Sfowell (1877). 123 Mass. 196; Holmes v. Trum- per (1871), 22 Mich. 427; Knoxville Bank v. Clark (1879), 51 la. 264. Contra. Brown v. Reed (1875), 79 Pa. St. 370; Seibelv. Vaughan (1873), 69 111. 257; Capital Bank v. Armstrong (1876), 62 Mo. 59, at 67, 68; Cm-nell v. Nebeker (1877), 58 Ind. 425. * A Idrich v. Smith (lt577), 37 Mich. 468; Hamilton y. Hooper (1877), 46 la. 515; Draper v. Wood (1873), 112 Mass. 315; Wood v. Steele (1867), 6 Wall. (U. S.) 80. _ ' _ ° Even in England, as the bill had not been issued, and required no new stamp, Webber v. Maddocks (1811), 3 Camp. 1; Kennerly v. Nash (1816), 1 Stark. 452; Downes v. Richardson (1822), 5 B. & Aid. 674; Sherrington v. Jermyn (1828), 3 C. & P. 374; Wright v. Inshaw (1842), 1 D. N. S. 802. Art. 246 and note. . ' Brooks V. Allen (1878), 62 Ind. 401; Langenbergerv. Kroeger (1874), 48 Cal. 147; U. S. v. Spalding (1822), 2 Mason (C. Ct.) at 482', Story, J. ; Garden v. Robertson (1879), 48 Wis. 493; Dinsmore v. Duncan (1874), 57 N. T. at 581. Contra, in England, Davidson v. Cooper (1843), 11 M. & W. at 799, affirmed (1844), 13 M. & W. 343. 17 258 BILLS OF EXCHANGE. Urt. 249. Effect of altera- Exception 1. — If an altered bill is restored to its tiononbill. ..i„ , ^ i , n t -i -i -i original lorm, and transferred to a oo?ia^ae holder, he may recover against all parties thereon.' Exception 2. — A bill may at any time be altered for the purpose of correcting a mistake/ and bring- ing the instrument into accordance with the intention of the parties at the time of issue.* Jllusteatiok. A bill payable after date is wrongly dated,* or a note in- itended to be negotiable - is made payable to 0. simply, the words "or order" being omitted.' The mistake may be cor- rected after the bill has been negotiated. Note. — The court in the exercise of its equitable jurisdic- tion has power to rectify a bill which does not express the in- tention of the parties,^ just as it can do so in the case of any other contract. It will be noticed that in America ^the in- dorser of an altered bill is liable, as such, to any subsequent holder, but that in England it may be otherwise under the Stamp Act. See Art. 319, n. . Effect of altera- Art. 249. The holder of a bill which has been eration. °™^' ' avoided by a material alteration cannot sue on the consideration in respect of which it was negotiated to him.' ' Shepard v. Whetstone (1879), 51 la. 457; Horst v. Wagner (1876), 43 la. 373; Kounts v. Kennedy (1869), 63 Pa. St. 187; Cf. RoUnson v. Reed (1877), 46 la. 219; Whitmore v. Nickerson (1878), 125 Mass. 496. But see Citisens' Bank v. Richmond (1876), 121 Mass. lio. ^ Cf. KnillY. Williams (1809), 10 East, 431; Ex parte White (18S3), 2 Deac. & Ch. at 858, 359; Harnelin v. Bruck (1846), 9 Q. B. at 310; London Bank v. Roberts (1874), 22 W. R. 402; Ames v. Colhurn (1858), 11 Gray (Mass.), 390; McRaven v. Crisler (1876), 53 Miss. 542; Booth V. Powers (1874), 56 N. Y. 22. .^Bradley v. Bardsley (1845), 14 M. & W. 873; Cf. Bank of Me- tropolis V. Bank (1855), 13 N. Y. 309. * Brutt V. Picard (1824), R. & M. 37. But see Miller v. GiUeland (1852), 19 Pa. St. 119. 5 Kershaw v. Cox (1800), 3 Esp. 246; Byrom v. Thompson (1839), 11 A. & E. 31; Cariss v. Tattersall (1841), 2 M. & Gr. 890; Cf. Art. 107. « Druiff V . Parker (1868), 4 L. R. Eq. 131. ' Alderson v. Langdale (1832), 3 B. &Ad. 660; Wheeloehv. Freeman (1832), 13 Pick. (Mass.) 165; Meyer v. Huneke (1874), 55 N. Y. 412; Vogle^!. Ripper (1864), 84 111. 100; Smith v. Mace (1863), 44 N. H. 553. AKT. 250.] DISCHARGES. 259 Exception 1. — If the bill was negotiated to Hm Effect of aitera- , . . tion on consid- after the alteration was made, and he was not privy oration, to the alteration, he may sue on the consideration.' Exception 2. — If the holder was privy to the alter- ation, he can still recover provided (a) that he did not intend to commit a fraud by the alteration,^ and (b) that the party sued ,would not have had any remedy over on the bill, if it had not been altered. Illustrations. 1. A. sells goods to B., and draws a bill on him for the price, payable to his own order. B. accepts. A., intending no fraud, makes a material alteration of the bill. A. can sue B. for the price of the goods though no action could be brought on the bill." 3. C. sells goods to A., who draws a bill on B. for the price, and indorses it to C. B. accepts. C, intending no fraud, makes a material alteration of the bill. C. cannot sue A. for the price of the goods, for the alteration has deprived A. of his remedy on the bill against B.* Art. 250. Where a bill appears to have been onusprobanai . , ~ , 1 as to alteration. altered, or there are marks of erasure on it, the party seeking to enforce the instrument is bound to give evidence to show that it is not avoided thereby.' Cf. Art. 138. ^ Burchfield -v. Moore (1854), 23 L. J. Q. B. 261; Cf. Cundy v. Mar- riott (1831), 1 B. & Ad. 696. And, also, on the bill, vide supra. 'Hunt V. Cfrai/ (1871), 35 N. J. L. 227; Clough t. Sea}/ (1878), 49 la. Ill; Savings Bank v. Shaffer (1879), 9 Neb. 1. ' Atkinson r. Hawdon {1835], 2 A. & E. 628; Clute v. Small (1837), 17 Wend. (N. T.) 238; Cf. Sutton v. Toomer (1827), 7 B. & C. 416, and Merrick v. Boury (1854), 4 0. St. 60 (payee against maker of note). ^ Alder son v. Langdale (1832), 8 B. & Ad. 660; see by way of analogy the effect at common law of the loss of a bill, Crowe v. Clay (1854), 9 Exch. 604. ^Knightv. Clements {1S38), 8A. & E. 215; Clifford y. Parker {ISil), 2 M. &Gr. 909; Wilde v. Armshy (1850), 6 Cush. (Mass.) 314; Simpson T. Stackhouse (1848), 9 Pa. St. 18fi; Willetf v. Shepard(l8K], 34 Mich. 106; Pager. Danaher (1811), i3 Wis. 221; Gillett v. Sweat (1844), 1 Gilm. (111.) 475; Chismv. Toomer (1871), 27 Ark. 108; Cf. Totum v. Catomore (1851), 16 Q. B. at 746; see e. g., Carissv. Tattersall (1841), 260 BILLS OF EXCHANGE. [abt. 251. Renewal. Effect of re- Art. 251. When a bill is given in renewal of a former bill, and the holder retains such former bill, the renewal, in the absence of special agreement,' operates merely as a conditional payment thereof. If the renewed bill be paid in due course or otherwise discharged, the original bill is likewise discharged;'' but if the renewed bill be dishonored, then, subject to Art. 245, the liabilities of the parties to the original bill revive and they may be sued thereon.' Note. — When there is an agreement to renew, the applica- tion for renewal must be made within a reasonable time of the maturity of the original bill, but it need not be made before its maturity.* When the holder of a renewed bill could not have maintained an action on the original bill because there was no consideration for it,° or the consideration was illegal," or be- cause he was privy to some fraud connected therewith,' he can- not sue on the renewed bill.' 2 M. & 6r. 890, as to what evidence suffices. But see Paramore v. Lindsey (1876), 63 Mo. 63; Jones v. Ireland (1856), 4 la. 63, at 71; Cor- coran v. Doll (1867), 82 Cal. 82; Huntington v. jFmicA (1854), 3 0. St. • 445; Meihel v. Sav. Inst. (1871), 86 Ind. 355. 'Cf. Lewis v. Lyster (1885), 2 0. M. & B. 704; Lumley v. Musgrave (1837),-4 Bing. N. C. at 15; Arnold v. Camp (1815), 12 Johns. (N. T.) 409; Wilbur i. Jernegan (1875), 11 R. I. 133; Archibald v. Argall (1870), 58 111. 307. ^Dillon V. Simmer (1822), 1 Bing. 100; Cf. Soward v. Palmer (1818), 2 Moore, 274; Lumley v. Hudson (1887), i^ing. N. C. 15. ^Ex parte Barclay (1802), 7 Ves. Jr 597; Norris v. Aylett (1809), 2 Camp. 825; Ci. Kendrick v. Lomax (1832), 2 Cr. & J. 405; Sloman. v. Cox (1834), 1 C. M. & R. at 472; Welch v. AlUngton (1863), 23 Cal. 322; First Nat. Bank v. Morgan (1876), 6 Huu (N. Y.), 346. But see Corn- wall V. Gould (1827), 4 Pick. (Mass.) 444, and next note. ^Maillard v. Page (1870), 5 L. R. Ex. 312; Cf. lnn.es v. Munroe (1847), 1 Exch. 473; Torrance v. Bank (1874), 5 L. R. P. C. 246, as to construc- tion of agreements to renew. ° Southall V. Bigg (1851), 11 C. B. 481; HiU v. liuckminster (1827), 5 Pick. (Mass.) 391; Copp v. Sawyer (1833), 6 N. H. 386. ^Chapman v. Black (1819), 2 B. &'Ald. 588; Hayy. Ayling {IShl), 16 Q. B. 423; Holden v. Cosgrove (1858), 12 Gray (M'ass.), 216; Nat. Bank \. Eyre (1879), 52 la. 114; Gates v. Union Bank (1873), 12 Heisk. (Tenn.)325. ''Lee r. Zagury (1817), 8 Taunt. 114; Sawyer v. Wiswell (1864), 9 Allen (Mass.), 39. * See, however, two apparent but not real exceptions, Mather v. Maidstone (1855), 18 C. B. 273; Flight v. Beed (1863), 1 H. & C 703. AKT. 251.] DISCHARGES. 261 Bill as Payment. — A bill given in renewal of another bill Effect of re- ■ operates in the same way as a bill given in respect of any ^^^^ other debt. The ordinary effect of giving a bill is that the remedy for the debt is suspended until the dishonor of the bill.' The bill operates as conditional payment, the condition being that the debt revives if the bill cannot be realized.^ It is im- material whether the bill be payable on demand or in futuro.' But the contrary presumption, that a negotiable * bill or note is received in extinguishment and satisfaction of a pre-existing debt, prevails in Maine^ Massachusetts and Vermont.' In France in the absence of special agreement the renewal of. a bill extinguishes the original bill by novaiio." Payment of a smaller sum in money does not discharge an undisputed debt for a larger sum,' but ifi the acceptance of a third person be taken in satisfaction of a debt for a larger sum, it is a good discharge,' and, possibly, the cheqk of the debtor himself for a smaller sum may, if so taken, operate as satisfaction.' A check which is afterwards stopped is wholly inoperative.'" ^Jagger Iron Co. v. Walker (1879), 76 N. T. 521. ^ Haines y. Pearce (1874), 41 Md. 221; Huse v. McDaniel (1871), 33 la. 406; Griffith v. Grogan (1859), 12 Cal. 317; Stevens v. Park (1874J, 73 111. 387, and Eermeyer v. Newhy (1875), 14 Kans. 164 (check). 'Curriev. Misa (1875),10 L. &. Ex. at 163, 164, Ex. Ch. *But see Aleock v. Hopkins (1850). 6 Gush. (Mass.) 484. ^Fowler v. Bush (1888), 21 Pick. (Mass.) 280; Appleton v. Parker (1860), 15 Gray (Mass.), 173; VarnerY. Nohlehorough (1822), 2 Greenl. (Me.) 121; Stephens v. Thompson (1855), 28 Vt. 77. AUter, in case of checks, Marrett v. Brackett (1872), 60 Me. 524; Weddigen v. Boston F. Co. (1868), 100 Mass. 422. 'Nouguier, §§1032-1042. ' Foakes v. Beer (1884), L. R. 9 App. Gas. 605, H. L. » Cwlewis V. Clark (1849), 3 Exch. 875. 'Goddard v. O'Brien (1882), L. R. 9 Q. B. D. 37, distinguished in Foakes v. Beer, supra at p. 618. "> Cohen v. Hale (1878), L. 'R. 3 Q. B. D. 371. CHAPTEE VIII. LIMITATIONS. timitaHon, Art. 252. Subject to Arts. 191 and 253, no action againatthe on a bill Can be maintained against any party thereto several parties. o j l j after the expiration of six years from the time when a cause of action first accrued to the then holder against such party.' Illusteation. C. is the holder of a dishonored bill. Three ,years after the dishonor he indorses the bill to D. D, must sue the acceptor within the next three years, though he has six years within which he may sue C. Explanation 1. — As regards the acceptor, time be- gins to run frotn the maturity of the bill, unless — (1.) Presentment for payment is necessary in order to charge the acceptor, in which case time (probably) runs from the date of such present- ment;'' or (2.) The bill is accepted after its maturity, in which case time (probably) runs from the date of ac- ceptance.^ Illtjsteations. 1. Bill payable in futuro, e. g., three months after date or »Cf. 21 Jac. 1. c. 16; Whitehead v. Walker (1842), 9 M. & W. 506; Woodruff V. Moore (1850), 8 Barb. (N. Y.J 171 . 'Picquet V. Curtis (1883), 1 Sumn. (C. Ct.) 478; Cf. Art. 172. «Cf. Art. 34. ^ (263) ' AKT. 252.] LIMITATIONS. 263 sight. Time runs in favor of the acceptor from the day the Limitation, bill is payable, not from the day the acceptance is given.' against the 2. B. in 1840 gives a blank acceptance to 0. In 1850 it is filled up as a bill payable three months after date, and nego- tiated to a bona fide holder. Time runs in favor of B. from the day the bill was payable." 3. Note payable on demand (with or without interest), and issued on the day it bears date. Time runs in favor of the maker from the date of the note, and not from the date of de- mand.' '4. Note payable on demand, dated January 1, is not issued till July 1. Time runs in favor of the maker from July 1, the day of issue.* 5. Note payable three months after demand. Time runs in favor of the maker from the day the bill is payable.* Explanation 2. — As regards the drawer or an in- dorser time (generally) begins to run from the date when notice of dishonor is duly sent." Illusteations. 1. Bill payable ninety days after sight is dishonored by non- acceptance. As regards the drawer time runs against the holder from the dishonor by non-acceptance and notice thereof. If the bill is'presented for payment and again dishonored, no fresh cause of action arises.' 2. A. draws a bill on B. C. indorses it for A.'s accommoda- tion. The bill is dishonored, and five years after the dishonor, 1 Holmes v. Kerrispn (1810), 2 Taunt. 323; Cf. Fryer v. Roe (1852), 12 C. B. 437. See Art. 20, computation of time of pajmeut. " Montague v. Perkins (1853), 22 L. J. C. P. 187; Cf. Art. 23. ' Norton Y- EUam [1831), 2M.&W. 461; Wheeler v. Warner {IS12), 47 N. Y, 519; De Lavalette v. Wendt (1879), 75 N. Y. 579; Newman v. Kettelle (1832), 13 Pick. (Mass.) 418. * Savage v. Aldren (1817), 2 Stark. 232; Cf. Richards y. Richards (1831), 2 B. & Ad. 447; WatUns v. Figg (1863;, 11 W. B. 268; Uill y. Henry (1848), 17 0. 9. 5 Thorpe v. Combes (1826), 8 D. & R. 347; Lifth v. Blunt (1830), 9 Pick. (Mass.) 488; Wenman v. Mohawk Ins. Co. (1835), IS Wend. (N. Y.) 267; Cf. Way v. Basset* (1846), 6 Hare, 56. _ « Cf. Shed V. Brett (1823), 1 Pick. (Mass.) 401 ; Cf. Art. 189. Jliter, in England, see next note. ' Whitehead v. Walker (1842), 9 M. & W. 506; Cf. Wood v. McMeans (1859), 23 Tex. 481. 264 BILLS OF EXCHANGE. [art. 252. Limitation, C., as indorser, is obliared to pay the holder. Two years later howicomputed ,.' ^ , ,. , ^ ^ a ^i , ■„ agaiiistthe (?.. e., seven years after ;the dishonor), (J. sues A. on the biJl. 'The action is barred. Aliter, if C. sued A. on the implied con- tract of indemnity.' 3. 0. is the indorser of a bill or note payable on demand. Time (presumably) does not begin to run in favor of C. until demand has been made and notice given. Note.— In England it is held that the holder's right of ac- tion against the drawer or an indorser is not complete until no- tice of dishonor is received; ^ when then does the cause of ac- tion arise when the notice is delayed or lost in the post? P. C. at69,Tarke, B.; Feglei/ v. McDonald (1879), 89 Pa. St. 128. 'Ci. Bobson v. Bennet (1810), 2 Taunt. 388; Pollard v. Bank of Eng- land (18711, 6 L. R. Q. B. 623; Goodwiny. Roharts (1875), 10 L. R. Ex. at 351, 353? Merchants' Bank v. State Bank (1870), 10 Wall. (TJ. S.), at 647. * Espv V. Bank (1873), 18 Wall. (U. S.), 604; Cf . Barnet v. Smith (1855), 10 Post. (N. fl.) 256; Pope v. Bank (1871), 69 Barb. (IST. Y.)226. ^ J'irst Nat. Bankr. Leach (1873), 52 N. Y. 360; Cf. Meads v. Bank (1862), 25 N. T. 143; Mutual Bank v. Eotge (1876), 28 La. An. 933. But Ree Brown v. Leckie (1867), 43 111. 497; Bickford v. BankilS6S), 42 III. 288. « Nolan T. Bank (1873), 67 Barb. (N. TJ 24. ''Security Bankv. Bank (1876), 67 N. Y. 458; Marine Bank v. City . Banic (1874), 59 N. Y. 67; Cleus v. Bank of N. Y. Nat. Banking Assoc. (1E82), 89 N. Y. 418 (raised check). Contra, Louisiana Bank v. Bank (1876), 28 Ea. An. 189. A.BT. 257.] FROriSIONS PECULIAR TO CHECKS. 269 place, the check must, in the absence of special Reasonable circumstances, be presented for payment onsentment. the day after it is received.'' (2.) If the person who receives a check and the banker on whom it is drawn are in diflferent places, the check must, in the absence- of spe- cial circumstances," be forwarded for present- ment on the day after it is received, and the agent to whom it is forwarded must, in like manner, present it or forward it on the day after he receives it.* Explanation. — In computing time non-business days must be excluded." Illustrations. 1. C, in London, receives a check drawn on a London banker on Monday. On Tuesday, instead of presenting it him- self he pays it in to his bankers, who present on Wednesday. C. has not presented the check within a reasonable time.' 3. C, on Monday, in London, receives a check drawn on a Jersey bank. On Tuesday 0. pays it to a London bank. The London bank on the same day forward it by post direct to the Jersey bank, requesting payment. 0. has duly presented the check.' Cf. Arts. 169, 201, excuses for delay, and Firth v. Broohs (1861), 4 L. T. N. S. 467. ^Alexander v. Surchfield (1842), 7M. & Gr. 1061; Simpson v. Pacific Ins. Co. (1872), 44 Cal. 139; BurkJmlter v. Bank (1870), 42 N. T. S38; Smith V. Miller (1870). 48 N. Y. 171; Cawein v. BrowinsU (1869), 6 Bush. (Ky.) 457; Andrews v. Bank (1872), 9 Heisk. (Tenn.) 211. iCf.Arts. 169, 201, excuses for delay, and Firth v. Brooks (1861), 4 L.T. N. S. 467. *Hare v. Henty (1861). 30 L. R. C. P. 302; Prideaux v. Griddle (1869), 4 L. R. Q. B. 455; Cf. Griffin v. Kemp (1874). 46 Ind. at 176; Veazie Bank v. Winn (1855), 40 Me. at 61 ; Woodruff v. Plant (1874), 41 Conn. 844. ^Cf. Arts. 20, 195, 196; Jones v. Heiliger (1874), 36 Wi.s. at 153: 34 and 35 Tict. c. 17. ^Alexander v. Burchfield (1842), 7 M. & Gr. 1061; Cf. Farwell v. Curtis (1876), 7 Biss. (C Ct.) 160. ''Ueywood v. Pickering (1874), 9L. R: Q. B. 428. 270 BILLS OF EXCHANGE. [art. 258. Reasonable NoTE. — The result of the cases seems to be this: A party sentmen^™' ^^<^ receives a check has a clear day for presenting or for- warding it. If, instead of presenting it himself, he forwards it to some one else to present, the question is, was he acting rea- sonably in so doing? A principal, of coufee, is responsible to third parties for the act of his agents, e. p'., if a person forwards a check to an agent, and the agent instead of presenting it himself unreasonably forwards it to another agent, the loss as regards third parties falls on the principal, though he may have a remedy over against his ag6nt. The question whether a check has been presented within a reasonable time may arise between drawer and holder, or between indorserand indorsee, or between transferor by delivery and transferee,' or between customer and banker.^ In each case it must be determined as between the particular parties. See a different standard of reasonable time as between vendor and vendee where the vendor of goods was paid by the check of the vendee's agent.* Presentment Art. 258. The drawGP of a check is 'not discharged chargedrawer. by the holder's omission to present it for payment within a reasonable time as defined by Art. 257, or to give due notice of dishonor, unless the drawer has suffered actual damage through the delay.* Illustkations. 1. A. draws a check in favor of C. in 1870. It is presented for payment in 1873, and dishonored. No reason for the delay is shown. A. is not discharged. The holder can sue him.' 3. A check drawn by A. on a London bank is handed to the payee, in London on Monday. On Wednesday morning the bank on which it is drawn stops payment, A. having . at that 1 See, e. g., Moule v. Brown (1838), 4 Bing. N. C. 266. 2 See, e. g.. Hare v. Heniy (1861), 30 L. J. C P. 302. ^Hopkins V. Ware (1869), 4 L. R. Ex. 268; Cf. Smith v. Miller (1870), 48 N. T. 171. , *As to presentment, Aleocander-^. Burchfield (1842), 7 M. & Gr. 1061; Bohvnson v.Hawksford (1846), 9 Q. B. 62; Laws v. Band (1857), 27 L. J. C. P. 76; Baileii v. Bodenham (1864), 33 L. J. C. P. 258; Heywood V. Pickering (1874), 9 L. R. Q. B. at 432; Stewart v. Smith (1866), 17 0. St. 82; Allen v. Kramer (1878), 2 Bradw. (111.) 205. As to notice— Shaffef V. Maddox (1879J, 9 Neb. 205; Clark v. Bank (1875), 2 MacAr- thur (D. C.}, 249; Griffin v. Kemp (1874), 46 Ind. 172. As to burden of proving ioimy— Planters'' Banky. Merritt (1872), 7 Heisk. (Tenn.) 177. ' Laws v. Band (1857),- 27 L. J. C. P. 76. AiiT. 259.] PROVISIONS PECULIAR TO CHECKSi 271 time funds there sufficient to meet it. The check is presented Presentment ■tiy n 1 e^ * • T 1 11 and notice to on Wednesday atternoon. A. is discharged.' charge drawe;'. Explanation. — Whea a check is not presented within a reasonable time of its issue, and the drawer sustains actual damage through the delay, it is (prob- ably) no excuse that such delay was caused by the bona fide negotiation of the check through different hands.^ Note. — In iaws v. iJawc? (185?),° it is suggested that the omission to present a check within six years of its issue would in any case discharge the drawer. No case against an indorser has arisen in England. It is well settled in America that an indorsor is discharged by the omission to present within a rea- sonable time, irrespective of actual damage.* Art. 259. It is uncertain when a check not known when deemed to have been dishonored is to be. deemed overdue for '"'"^'^^■ the purpose of affecting the holder with equities of which he had no notice at the time the check was negotiated to him.^ Illustrations. 1. A. is induced by fraud to draw a check in favor of C. Six days after its date 0. indorses the check to D. D. has not taken an overdue check; therefore if he gave value and had no notice of the fraud he has a good title.' ^Alexander v. Burehfield, (1842), 7 M. & Gr. 1061; State v. Gates (1877), 67.MO. 139; Farwell y. Curtis (1876), 7 Biss. (C. Ct.) 160; Of. Kinyon v. Stontow (1878).- 44 Wis. 479; Fegley v. McDonald (1879), 89 Pa. St. 128 (discharge of surety). 2 Of. Mohawk Bank v. Broderiek (1834), 13 Wend. (N. T.) 133; Dan- iel, § 1595; see Art. 254, u.; but Cf._ Bailey v. Bodenham (1864), 83 L. J. C. P. 253, where, however, the point was inot argued, and the drawer was held to be discharged on another ground. '27 L. J. C. P. 76; Cf. Pott v. Glegg (1847), 16 M. & W. 321, for a reason. ^ Smith V. Janes (1838), 20 Wend. (N. Y.) 192; VeazieBank v. Winn (1855), 40 Me. 60. ^Serrel v. Ry. Co. (1850), 9 C. B. 811 at 828. 829; Cf. Boehm v. Stir- ling (1797), 7 T. R. 4:23; Himmelman v. Hotalmg (1870), 40 Cal. 111. ^Rothschild v. Corney (1829), 9 B. & C. 388 (six days); London <& County Banking Co. ■v. Groome (1881), L. R. 8 Q.B. D. 288 (eight days; prior decisions reviewed); C!f. Ames v. Merriam (1867), 98 Mass. 294 272 BILLS OF EXCHANGE. [aht. 260. When deemed 2. May 1, 1880, C, the payee of a check, transfers it to D., 0V6rdii6 ' who takes for value and without notjce that it was given for an illegal consideration. The check was not in fact issued until the day of transfer to D., though dated May 1, 1879. D. has not taken an overdue check, and is,therefore,not subject to equities.' 3. A certified check, payable to bearer, is transfefred by E. to F. six rhonths after the time of its date. F. has not taken an overdue check, and has, therefore, a good title, though E. had stolen the check from the owner.^ 4. A " Mem." check was transferred to D. two years and a half after its date. D. was held to have taken an overdue check.' Note. — Cf. Arts. 133, 134, as to overdue bills of exchange, Arc. 282, as to overdue note on demand, and see Art. 138. Banker's duty Art. 260. A banker, as such, is bound (6 honor checks. his customers' checks, when duly presented, to the extent of the balance which the customer then has in his hands. If the banker make default he is liable to his customer in an action for damages.* Explanation 1. — A banker is entitled to have funds paid in a reasonable time before the customer draws against them, in order that he may be aware of the state of accounts between' them when the check is presented.' Explanation 2. — As regards banks having several branches, where a customer has an account at one (ten days); First Not. Bank v. Wnrris (1871), 108 Mass. 514 (four days); Lester v. Given 8 (1871), Bush. (Ky.) 357. 1 Cowing v. Altman (1877), 71'N. Y. 485. ^ Nolan V. Bank (1873), 67 Barb. (N. Y.) 24. 'SkiUman v. Titus (1866), 32 N. J. L. 96; Cf. Lancaster Bank 7. Woodward (1852), 18 Pa. St. 357 (year); First Nat. Bank v. Needham (1870), 29 la. 249 (five months). ^Marzetti v. Williams (1830),'! B. & Ad. 415; Whitaknr v. Bank (1835), 1 C. M. & B,. 744; Groy v. Johnston (1868), 3 L. R. H. L. 1, see at 14 per Ld. Westburv; Cf. Goodtoin v. Robarfs (1875). 10 L. R. Ex. at 351, Ex. Ch. ; Bickford v. Firf^t Nat. Bank (1866), 42 111. at 240, 241. As to measure of damages, see Art. 209. ^Whitaker v. Bank, supra, at 749-750, Parke, B.: Cf. Bransby v. Bank (1866), 14 L. T. N. S. 403. ART. 261.] _ PROVISIONS PECULIAR TO CHECKS. 273 branch, the other branches at which he has no ac- Banker's duty to honor count are not bound to honor his checks;' but where "i^eoka. a customer has accounts at two or more branches the bank is entitled to combine such, accounts against him.^ Note. — ^The combined accounts must be kept in the same right, e.g.., a personal and a trust account cannot be combined. See the whole status of branch banks in regard to bills dis- cussed by the Privy Council.' Duty as to Sills. — The contract implied by law between banker and customer may of course be modified by special agreement, but apart from this, money in the hands of a banker is in efiFect money lent, re-payable on demand, which may be either personal or by check.* When a customer accepts a bill payable at his bankers, it is an authority to the banker to pay it; * but qu. if the banker is bound to do so in the absence of special agreement? ° In the absence of special agreement a banker is clearly under no obligation to accept his customer's bills (Art. 308), nor, it seems, is he bound to pay a bill, other than a check, drawn on him by a customer (Art. 308). In Eng- laiid, a post-dated check known to be such is an ordinary bill of exchange payable after date,' but in America it is regarded only as a check issued on day of date.' In the absence of special agreement, express or implied, founded on considera- tion, a banker is, of course, under no obligation to let a cus- tomer overdraw.' Art. 261. The authority of a banker to pay a Death or bant check drawn on him by a customer is determined by drawer. ' Woodland v. Fear 0857), 7 E. & B. 519. = Garnet V. M'Kewan (187ii), 8 L. R. Ex. 10. ' Prince v. Oriental B mh (1878), 8 L. R. Ap. Ca. 325. * Cf . Pott V. Clegg (1847), 16 M. & W. 321 ; Foley v. Hill (1848). 2 H. L. Ca. 28; Attorney Oen'l.v. Ins. Co. (1877), 71 N. T. at 232: Kneckt V. U. S. Sav. Inst. (1876). 2 Mo. Ap. 563. See, too. Re Hallett's Estate (1880), 13 h. fi. Ch. D. at pp! 727, 728 C. A.; Re Agra Bank (1866), 86 L. J. Ch. 151 (banker is debtor to, not trustee for, his customer). » Kymer v. Laurie (1849), 18 L. J. Q. B. 218. « Cf. Robarts v. Tucher (1851), 16 Q. B. at 579. ' Forster v. Mackreth (1867), 2 L. R. Ex. 163; Cf. Emmanuel v. Rolarts (1868;, 9 B. & S. 121, and Art. 57. But see Gatty v. Fry (1877). 2 L. R. Ex. D. 265. ' Taijlor V. Sip (1863), 30 N. J. L. 284; Mohawk Bank v. Broderick (1834;, 13 Wend. (N. Y.) 133. ° Gumming v. Shand (1832), 29 L. J. Ex. at 182; Cf. Lancaster Bank V. Woodward (1852), 18 Pa. St. 357. 18 274 BILLS OF EXCHANGE. [akt. 262. Death or bank- notice of the customer's death,' or bankruptcy,^ or drawCT°^ customer's countermand of payment.' NoTB. — The banker's duty to pay is determined by the fact of death or bankruptcy, but a payment made in ignorance of the fact is valid. When a firm of two partners has a banking account, and one dies, the authority of the surviving partner to draw checks on the firm account, is not determined.* Gift In contem- Art. 262. A check given by the drawer in con- ffi™ "* templation of death must be presented for payment by the donee before the drawer's death in order to en- title the donee to receive the amount out of the drawer's estate as a donatio mortis causa. Illustrations. 1. A. draws a check in favor of C, and in contemplation of death hands it to him as a gift. After A.'s death it is pre- sented and payment refused. C. cannot claim for the amount against A.'s estate. ° 2. A. in contemplation of death, draws a check and gives it to 0. After A.'s death 0. presents the check, and the bank- ers, in ignorance of A.'s death, pay it. C. can (probably) re- tain the money as against A.'s representatives." 3. A., in contemplation of death, draws a check and gives it to 0. Before A.'s death C. presents it for payment. The bankers refuse to pay it, because doubtful of A.'s signature. A. dies, and payment is subsequently refused on that ground. C, the donee, is entitled to receive the amount out of A.'s estate.' ' Eogerson v.LadhroJce (1822), 1 Bing. N. C. 93; Ci.Tafey. Hilhert (1793), 2 Ves. Jr. at 118. But see Daniel, § 1618 6, criticising this doc- trine. 2 Vernon v. Hanhey (1787). 2T. R. 113; Ex parte Sharp (1844), 3 M. D.&D.490. 2 Cf . Cohen v. Hale (1878),,3 L. R. Q. B. D. 371 ; McLean v. Clydesdale Banking Co. (1883), 9 App. Oa?. 95. * Backhouse v. Charlton (1878), L. R. 8 Ch. D. 444; see, too, Usher v. Dauncey (1814), 4 Camp. 97. 6 Hewitt V. Kaye (1868), 6 L. R. Eq. 198; Beak v. Beak (1872), 13 L. R. Eq. 489; Cf. Jones v. Lock (1865), 1 L. R. Ch. 25; Harris v. Clark (1849), 3 N. Y. 93; Second Nat. Bank v. Williams (1865), 13 Mich, at 291 » Cf. Tate V. ffi76ert,(179S), 2 Ves. jr. at 118;, Burke v. Bishop (1875), 27 La. An. 465. The bankers are justified in paying, see Art. 261. ' Bromley v. Brunton (1868), 6 L. R. Eq. 275. ART. 264.1 PROVISIONS PECULIAR TU CHECKS. 275 4. A., in conteiriplatioa ot death, draws a check and gives Gift in contem- ^ • c ' = plation of it to G. Before A.'s death 0. negotiates the check for value, deaih. The holder can claim for the amount against A.'s estate.' Note. — Of. Art. 105. The position of the donee of a check is this: he cannot enforce payment against the drawer's estate because he is n(jt a holder for value (Art. 91), and the banker's authority to pay is revoked by notice of the drawer's death (Art. 361). A check given for Value, it is conceived, is on the same footing as an ordinary bill of exchange. But, assuming that as between drawer and payee, it is a mere authority to receive the amount, still an authority coupled with an interest is not revoked by death .^ Art.264. A check, on payment, becorfles the prop- Property in erty of the drawer," but the banker who pays it is en- titled to keep it as a voucher until his a-ccount with his customer is settled.* Note. — Arts. 365-270 of the English work (omitted) embody the statutory provisions in England as to crossed checks.' As to the origin of this practice of crossing checks, and the effect of so doing before 'the statufe, see Bellamy v. Majoribanks (1857)^ 7 Ex. 402, Parke, B. The practice has not been adopted in America. ' Rolls V. Pearce (1877), 5 L. R. Ch. D. 730. " Cf. Hatch V. Searles (1854); 2 Sm. & Gr. at 151 and 155; see passim, Snaith ^ . Ming ay (1813), 1 M. &S.at95. 'Regw. Watts (1850), 2 Den. C. C. 15. *Cf. Charles v. Blaekwell {1877), 2 L. R. C.P. D. at 162; Inre Brown (1843), 2 Story (C. Ct.), at 519. = British Code, §§ 76-82; Crossed Checks Act, 1876, 89 &40 Viet. c. 81. CHAPTEE X. PROVISIONS PECULIAR TO PROMISSORY NOTES. [Explanatory Head-note. — The term " bill " in contradiction to " bill ot exchange," as used in the articles of this treatise, in- cludes, mutatis mutandis, promissory note as well as bill of e'x- change, the maker of a promissory note corresponding with the acceptor of a bill of exchange. See Introd. p. x, and head- note to Chapter I . In this chapter are collected the provisions which apply exclusLvely to promissory notes.] Note defines. Art. 271. A promissorj note is an unconditional written promise, signed by the maker, to pay abso- lutely and at all events a sum certain in money, either to the bearer or to a person therein designated, or his order. ' Note. — See a promissory note compared with a bill of ex- change by Lord Mansfield,^ and Parke, B.,' and cf. Art. 386 n. See also some points of difference between a bank note and an ordinary note referred to by Bramwell, B.* Foreign Law. — The French law as to notes (billets a ordre), is containedin French Code de Commerce, Arts. 187, 188. Although the Code is silent on the point, it seems that notes payable to bearer (billets au porteur), are to some extent rec- ognized, see Nouguier, §§ 1565-1578. German, Exchange Law, Arts. 96-100, deals with notes. Form and Interpretation. Necessary par- Art. 272. There must be two parties to a promis- lies, > Coleham v. Coohe (1742), Willes, 393 at 396, 397; Cf. FerHs v. Bond (1821), 4 B. & Aid. 679. ^Heylyn v. Adamson (1758), 2 Burr, at 676. » CHbh V. Mather (1832), 2 Cr. & J. at 262-263, Ex. Ch. * Litchfield Union v. Cfreene <1857), 1 H. & N. at 889. (276) 4KTS. 273-74.J PROMISSORY XOTES. 277 8ory note in its origin, and they must be different per- Necessary par- 1 ties. sons, namely: — (1.) The person who makes the promise, called the maker. (2.) The person in whose favor the promise is made, called the payee. C£ Art. 2. Explanation. — A writing in the form of a note payable to maker's order is not a .note, but by in- dorsement it becomes one.' IllustkAtions. 1. B. makes a note payable to his own order, and indorses it in blank. This is a valid note payable to bearer.' 3. B. makes a note payable to his own order, and indorses it to C. This is a valid note payable to C. or order.' 3. B., C. and X. make a joint and several note payable to 0. and X. or order. This is a valid note. 0. and X. may sue B. on his several liability.* 4. B. & Go. make a note payable to C. &. Co. or order. X, is a partner in both firms. C. & Co. cannot sue B. & Co. on this note. But if C, & Co. indorse the note, the indorsee may sue Art. 273. A promissory note is inchoate and in- Delivery neees- coinplete until delivery thereof be made to the payee." ^*'^' Art. 274. A promissory note may be in any form Note may te of words which comply with the requisitions of Art. words. °™ ° '^BooperY. Williams (1848), 2 Exch. 13; Miller v. Weeks (1853), 22 Pa. St. 89; Cf. Smalley v. Wight (1857), 44 Me. 442; Lea v. Bank (1888), 8 Port. (Ala.) at 124. 2 Id. Masters v. Baretto (1849), 8 C. B. 433. * Gay V. Lander (1848), 17 L. J. C. P. 286; Hall v. Burton (1862), 29 111. od-L, *Beecham v. Smith. (1858), E. B. & E. 442. Aliter, if a joint note, until indorsed. Pitcher v. Barrows (1885), 17 Pick. (Mass.), 361. ^Murdoch v. Caruthers (1852), 21 Ala. 785; Hey wood v. Wingafe (1848), 14 N. H. 78; Cf. Neale v. Turton (1827), 4 Bing. 149; Hapgood V. Watson (1875), 65 Me. 510; Walker v. Wait (1878), 50 Vt. 668. » Chapman y. Coitrell (1865), 3 H. & C. 857; Of. Arts. 53-56, as to de- livery. 278 BILLS OF EXCHANGE. [aht. 274. Note may be 271,' and from whicla the intention to make a note in any form of ■words. appears. Illustrations. 1. "DueC. $100, value received;" "I. O. U. $100;"' "I acknowledge the within note to be just and due," written on the back of a note,* These are not notes, but are mere evi- dence of indebtedness. 3. " I owe you 1100 to be paid May 5th; " " " Due 0. or or- der $100 on demand."' These. are notes since they import a promise to pay. . 8. A certificate of deposit is a note, if it contains a promise to pay, e. g., " C. has deposited in the X. baiik $100, payable to himself on return of this certificate." ' 4. The following is not a npte: " Borrowed of C. $100 to account for on behalf of the X. Club at months' notice, if required." (Signed) T. B.» 5. A banker's deposit note running: " Received of Mr. C. 1501. to be accounted for on demand," and signed, will not be treated as a promissory note." ' Hooper v. Williams (1848), 2 Exch. at 26; Almy v. Winslow (1879), 126 Mass. 842; Dnggett v. Daggett (1878), 124 Mass. 149; Woodward V. G-enet (1858), 2 Hilt. (N. Y.) 526., 'Sihree v. Tripp (1846), 15 M. & W. at 29; Cf. Jackson v. Slipper (1869), 19 L. T. N. S. 640. ^Currier V. Lockteood (^1873), 40 Conn. 349 (reviewing cases); Euans V. Philpotts (1840), 9 C. & P. 270. Conti-a, Russell v. Whipple (1824), 2 Cow. (N. Y.) 536; Luqueer v. Prosser (1841), 1 Hill (N. Y.), 256; Brady v. Chandler (1860), 31 Mb. 28; Bacon v. Bicknell (1863), 17 Wis. 523; Jacguin v. Warren (1866), 40 111. 459, but Cf. Bowles v. Lambert nSIO), 54111. 237. *6ray v. Bowden {1839), 23 Pick. (Mass.) 282; Cf. Daggett v. Daggett, supra. s Waithman v. Elsee (1843), 1 C. .& K. 35; Cf. Brooks v. Elkins (1836), i: M. & W. 74. « Carver v. Hayes (1859), 47 Me. 257; Kimlall v. Himtington (1833), 10 Wend. (N. Y.), 675; Cf. Smith v. Allen (1812), 5 Day (Conn.) 337; Hussey v. Winslow (1874), 59 Me. 170 [good to bearer). Contra, Brmvn v. Oilman (1816), 13 Mass. 158. ''Klauler v. Biggerstaff (1879), 47 Wis. 551 ; Catev. Patterson (1872), 25 Mich. 191 ; Hunt v. Divine (1865), 37 111. 137; Pardee v. Fish (1875), 60 N. Y. 265; Drake v. Markle (1863), 21 Ind. 433; Cf. Brummagin v. Tallant (1866), 29 Cal. 503; Hart v. Life Assn. (1875), 54 Ala. 495. Contra, Patterson v. Poindexter (1843), 6 W. & S. 227; Cf. Sibree v. Tripp, supra. > , ' White V. North (1849), 3 Exch. 689. « Hopkins v. Abbott (1875), L. R. 19 Eq. 222. AiiT. 275.1 FROMISSOBY NOTES. 279 Note. — For further illustrations, see Arts. 2, 8, 9, 10, 13, 13, Note may be 14, 19, 20, 33, 58. The promise of the maker in a note corre- ^ord^ '°™''^ sponds with the order to the drawee in a bill of exchange ac- cepted generally. It may be regarded as the same contract stated conversely, and the same considerations apply to both, see Art. 10. An instrument invalid as a negotiable promissory note may of course be effectual as an agreement,' or an I. O. U. Subjoined is an ordinary form of note. $100. 1, Clark Street, Chicago, January 1, 1870. On demand, I promise to pay to James Charles, or order, one hundred dollars, for value received. John Beown. Art. 275. There may be two or more makers to a joint and sev- promissory note, and they may be liable thereon jointly, or jointly and severally, according to its tenor." iLLUSTKAiapNS. 1. A note inthe form " I promise," signed by several per- sons who are not partners, is their joint and several note.' 3. A note in the form " We promise," signed by several persons, is their joint note only.* 3. B.,X. and Y. are partners. ^B. makes a note in the form "I promise," signing "for X. and Y.,"T. B. This is the joint note of the firm, and not a several note by B.* • Explanation 1.— A partner, as such, cannot bind his copartners severally, but by a joint and several note he may bind the jfirm jointly ° and himself sev- erally.' ' 'Cf. White v. North (1849), 3 Ex. Ch. 6S9. i'Cf. Ex parte. Honey (1871), 7 L. E. Cb. 178. 'Monson'v. Drakeley (1873), 40 Conn, fi 2; Wallace v. Jewell (1871). 21 0. St. 168; Hemmemvay v. Stone (1810), 7 Mass. 58; Coonley v. Wood {188.=)), 36 Hun (KT.T.), 659; Maiden v. Wehster (1868), 30 Ind. 317; Cf. Ridd V. Moggridge (1857), 2 H. & N. 568; club. Pollock. C. B. *Barnett v. Juday (1871), 38 Ind. 86; Byles, p. 7; Parsons, v. 1, p. 247. ^ Ex parte Buckley (1845), 14 M. & W. 469. « Maclae-!. Sutherland (1854), 3 E. & B. 1. '' Penkivil T. Corlnell (1850), 5 Exch. 381. 280 BILLS OF EXCHANGE. Lakts. y76-7S. jointandsev- Explanation 2. — A. new maker cannot be added to erainote. g joint and Several note after it has been issued.' Note. — See further, Arts. 334 and 245. A bill of exchange differs from a note in this: If there be two or more acceptors they^can only be liable jointly, not jointly and severally.^ Note contain- Art. 276. A promisfiory note may contain a Snty.^'^ ° pledge of collate]::al security with authority to sell or dispose thereof.' Note. — The right to the security passes with the instrunient, and the person who holds the note free from equities, holds the security ifi like manner.* In France the security follows the instrument, N'ouguier, §715. The Belgian Commercial Code, § 26, expressly enacts the same as to bills. Noteinaiterna- Art. 277. A promissoiy note may give the holder the option between the payment of the sum specified and the performance of a,nother act by the maker. As to the latter, it is not a note." Ilt.usteation. " I promise to pay C. $100 at my store May 1, 1880 (or in I goods on demand),, value received." This is a valid note.' Note. — As the payee can demand money, and no option is given to the debtor, it is said there is no uncertainty in the instrument. The promise to pay money is absolute. The question has not been raised in England. See Art. 10. Nota under Art. 278. A promissory note cannot be issued ^^^ under seal.' 1 Gardner r. Walsh (1855), 5 E. & B. 83; see Art. 247. ' Jackson v. Hudson (1810), U Camp. 447. = Wise v., Charlton (1836), 4 A. & E. 786; Towne v. Bice (1877), 122 Mass. 67; £mpper v. Chase (1858), 7 la. 145; Cf. Perry v. Bigehw (1880), 1-28 Mass. 129. * Duncan v. Louisville (1877), 13 Bush (Ky.). 378; Kelley v. Whitney (1878); 46 Wis. 110; Holmes \. McGinty (1870), 44 Miss. 94. Contra (subject to equities), Chicago By. Co. v. Lowenthal (1879|, 93 III. 433; Johnson v. Carpenter (1862), 7 Minn. 176. ^ Dinsmore v. Duncan (1874), 57 N. Y. 578; Cf. Vermilye v. Adnms Ex. Co. (1874), 21 Wall. (U. S.) at 144; N. Y. Civil Code (draft of 1888), §2729. . ' Hosstatter V. Wilson (1862), 36 Barb (N. Y.) 307: Cf. Hodges v. Shuler (1860), 22 N. Y. 114; Art. 10, Expl. 3. 1 Merritt v. Cole (.876), 9 Hun (N. Y.), 98; Lewis v. Wilson (1840), AKT8. 281-82.] PROMISSORY NOTES. 281 Note. — If sealed, though made by a corporation, the in- Note tmaer Btrument becomes a specialty,^ and as such it may be negotia- °*''^' ble if issued by the government.^ In the absence of statute it is not negotiable as a note. It has, however, been held that the negotiability of a note is not destroyed by the indorsement of a corporation through its seal.' Before the British Code, which expressly permits the corporate seal to be affixed § 91 (2), it was doubtful whether, by the English law, a bill or note issued by a corporation under its seal, constituted a negotiable instrument.'' It was held that such an instrument may be negotiable for the purpose of passing with a good title to a bona fide purchaser for value.° Whether it was to be regarded as a note for a,ll purposes is not clear. It was held that if signed by the directors of a company in a manner binding the directors personally, the addition of the company's seal didnpt make it binding on the company.' Transfer. Art. 281. Promissory notes are by statute negoti- statutory nego- able " in th-e same manner as inland bills of exchange are or may be by the custom of merchants." ' Note. — This statute, it seems, is merely declaratory; ' there- fore the provisions of Chapter III apply in their entirety to notes. It has been substantially re-enacted in the American States, though the negotiability of notes independent of this statute, has been maintained by many courts. Art. 282. A promissory note payable on demand, Note on ae- and not known to have been dishonored, is to be overdue. 6 Blaokf. (Ind.) 370; Hopkins v. R. R. Co. (1842), 3 W. & S. (Pa.) 410, Eawson v. Davidson (1883), 49 Mich. 607; Cif. Lyman v. Cali/er [1810), 64 N. 0. 572. But Cf. Banks v. R. R. Co. (1873), 5 S. C. 156; Bank V. Smith (1881), 5 0. 222. ' Steele v. Oswego Co. (1836), 15 Wend. (IST. T.) 265. See Art. 50, n. ' White V. R. R. Co. (1858), 21 How. (U. S.)575; Goodwin v. Rolarts (1875), 10 L. R. Ex. 337; Cf. Dinsmore v. Duncan (1874), 57 N. T. 573. ' Rand v. Dovey (1877), 83 Pa. St. 280, * Crouch V. Credit Fonder (1873). 8 L. R. Q. B. at 382, 383. ' Ex parte Colborne (1870), 11 L. R. Eq. 478; Rumball v. Bank (1877), 2 L. R. Q. B. D. 194. « Button V. Marsh (1871), 6 L. R. Q. B. 361. ' 3 & 4 Anne, o. 9, § 1. ' Goodwin V. Robarts (1875), 10 L. R. Ex. at 350. 282 BILLS OF EXCHANGE. [art. 285. Note on de- deemed overdue after the lapse of a reasonable time ma.nd, when . . ,^„ . e-.,-^^ ■averdue. from Its issue.' Cf. Art. 286, Explanation. — Reasonable time is a question of law." NoTB. — What is a reasonabl.e time depends entirely on the circumstances of the case, and the intention and understand- ing of the parties. Hence one case is no precedent for another. Five months was held a reasonable time in one case,' while two and a half months was declared unreasonable in another.' This uncertainty has been remedied in several States by statutes fixing the period within which the note shall not be deemed overdue. In some ca.ses, the fact that the note was payable with interest was regarded as material in determining the ques- tion.^ But in England the courts consider a note payable on demand with or without interest as a continuing security, im- mediate payment not being contemplated by the parties; and it was accordingly held that a note indorsed fourteen years after its date was not indorsed overdue, and was taken by the in-, dorsee free from equities between the maker and payee;" and the same rule was laid down by the New York courts, and recently re-affirmed.' See further Arts. 133, 134, 138, 259. Art. 285. A promissory note payable on demand must be pre-sented for payment within a reasonable time in order to charge the indorsers.* 1 Ranger v. Cart/ (1840), 1 Mpt. (MasaO 369; Poorman v. Mills (1870), 39 Ctil. 345; Carll v. Brown (1852), 2 Mich. 401. ^ Poorman v. Mills, supra; Carlton v. Bailey (1853), 7 Fost. (N. H.) im-. .Parker y. Tuttle (1858), 44 116.459. Contra (tact), Tomlinson ■ V. Kinsella (1863), 31 Conn. 268; Cf. Barhourv. FuUerton (1859), 36 Pg,. St. 105. ^ Hanford, v. Miekles (1809), 4 Johns. (N. T.) 224; Cf. Deeman v. Has- kell (1858), 45 Me. 480. *Losee v. Dunkin (1810), 7 Johns. (N. T.) 70; Cf. Herrick v. Wolver- ton (1870), 41 N. Y,581; Nemns v. Townsend (1825), 6 Conn. 5; Moreu V. Wakefield (1868); 41 Vt. 24. s Wethei/ V. Andrews (1842),, 3 Hill (N. T.), 582; Cf. Tomlinson v. Kinsella (1863), 31 Conn. 268. , •'Brooks v. Mitchell (1841), 9 M. & W. 15; Cf. Crippsv. Davis (1843), 12 M. & W. at 165, Parke, B. See Tomlinson v. Kinsella, supra, ap- proving this case. T Parker y. Stroud (1885), 98 N. T. 379, following Merrittr. Todd (1861), 23 N. Y. 28. ^Sicev. Cunningham (1823), 1 Cow. (N. T.) 397; Crim v. Stark- weather (1882), 88 N. T. 339 (payable " on demand after dale " with in- terest "after maturity"); Keyes v. Fenstermaker (1864), 24 Cal. 3i;9; Seaverv. Lincoln (1838), 21 Pick. (Mass.) 267; Chattered Bank v. Dickson (1871J, 3 L. R. P. C. 574 at 579. Butcf. Merritt v. Todd (1861), 23 I*r. T. 28, approved Pardee v. Fish (1875), 60 N. Y. 265 at 270, 271j and followed, Parker v. Stroud, supra. Presentment of note on de- xoand. ART. 286.] PROMISSORY NOTES. . 283 Explanaiion.- — Reasonable time is a question of Presentment of law.^ In determining what is reasonable time re^mand. gard must be had to the nature of the instrument as a continuing security.^ [Illustration. A note payable on demand is indorsed by C. to D. Ten months afterwards it is presented for payment and dishonored. This may be a reasonable time." Note. — As to presentment to charge indorser see Arts. 160 et seq.j to charge maker, Art. 173; to charge guarantor, Art. 173. V Liabilities of Maker. Art. 286. The maker of a promissory note is the Mater's con- tract. principal debtor on the instrument.* He engages that he will pay it at maturity according to its tenor. Note. — The maker is sometimes .incorrectly called the drawer, but the primary aiid absolute Ijability of th^ maker of a note must be distinguished from the secondary and con- ditional liability of the drawer of a bill of exchange.* In gen- eral the maker of a note corresponds with the acceptor of a bill of exchange, and the same rules apply to both. A note indorsed by the payee resembles an Accepted bill payable to drawer's order and indorsed by the drawer, the payee corre- sponding with the drawer.' The distinctions that exist be- tween maker and acceptor arise from this: the acceptor is not the creator of a bill; his contract is supplementary, while the maker of a note originates the instrument. Hence (a) a note cannot be made conditionally,' while a bill may be ac- cepted conditionally (Art. 39); (S) maker and payee are imme- ^Sicev. Cunningham (1823), 1 Cow., (N. T.) 397; Ci. Alexander v. Parsons (1S70), 3 Lans. (N. T.) 333. But of. Chartered Bank v. Dick- son (1871), 3 L. R. P. C. 574, at 684; Wi/man v. Adams (1853), 12 Cush. (Mass.) 210; Arts. 150, 195, 282. ^ Chartered Bank v. Dickson, supra, at 579-580; Cf. Serrell T. Ry. Co. (1850), 9 C B. at 289; Lockwood v. Crawford (1847), 18 Conn. 861; Rhodes v. Seymour (1869), 36 Conn, at 6. *Id. * Cf . Id. at 580, and Art. 272. ^ Story, Notes, § 4; Gwinnell y. Herbert (1836), 6 Nev. and Man. 723. •Id.; Heylyn v. Adamson (1758), 2 Burr, at 678, Ld. Mansfield. 'Arts. 271 and 10. 284 BILLS OF. EXCHANGE. [art. 287. Maker's con- iract. Maker's estop- pels. diate parties in direct relation with each otherj while acfceptor and payee, except in the case of a bill payable to drawer's order, are remote parties.' See, also, the notes to Arts. 10, 20, 37. Art. 287. The maker of a note payable to order by the fact of making it conclusively admits and war- rants to a bona fide holder the existence of the payee and his then capacity to indorse." Note. — It was held in a Massachusetts case that the maker was not estopped from setting up the insanity of the payee at the time of the execution of the note.' • Cf. Bishop V. Toung (1800), 2 B. & P. at 83, Ld. Eldon. ^Drayton v. Dale (1823), 2 B. & C. 293; Lane v. Krehle (1867), 22 la, 399; Nightingale v, WitUngton (1818), 15 Mass. 272; Burhe v. Allen (1854), 9 Fost. (N. H.) 106; Esley v. People (1880), 23 Kans. 510; Cf. Arts, 139, 212, 216. 'Peasleey. Bobbins (ISil), 3 Met, (Mass.) 164. INDEX. Acceptance, In General: defined, 42 delivery or notiflcalion to complete, 42 n, 58. See Deliver]/. blank signature filled up as, 35 , material alteration in, 255 necessity of consideration, 215 cross-acceptance as consideration, 94 of check, 268 presentment for. See Presentment fw Acceptance, obligation to accept, 210 what it admits, 214 cancellation of, by holder, 246, 247 revocation of, by drawee, 60 proper date after previous refusal to accept, 47 Form of: in writing on bill or on separate paper, 42 place on bill, 43 by promise to pay the bill, 43 oral or implied from acts of drawee, 43 by detention or part payment, 44 to whom must be addressed, 44 by written or verbal promise to accept, 44 promise to accept and promise to pay, distinguished, 46 need not be dated, 46 must be to pay money, 47 when Jaws conflict, 68-71 where bill drawn in a set, 41 Time of: before bill complete in point of form, 35-38, 46 after maturity, 46 after dishonor, 46 presumption as to time when undated, 47 By Whom: in general by drawee, 48 (286) 286 INDEX. . Acceptance — continued. \ By Whom: by person other than drawee, 48 by one of several drawees, 48, 52. See Qualified Jceeptance, by drawee in fictitious name, 49 by fictitious person. See Fictitious Name or Party. capacity to accept in general, 72 by person nan compos mentis, 73 by infant, 73 by married woman, 74 by company or corporation, 49, 50, 57, 75, 76 authority to accept in general, 77-83 by partner, 87. 88. See Partner and Partnership. by agent, 81-86. See Principal and Agent. forged or unauthorized, 90-93 construed with address to drawee, 49 General or Qualified: what general, 50 what qualified, 50 conditional, 51 as to amount, place of payment or time, 51 by acceptance of part of drawees, 52 effect of qualified, 62 ' holder's option to take qualified, 160 holder's duty after taking qualified, 160, 175 See Acceptor — Drawee — Signature. Acceptance for Honor Supra Protest. what bills may be so accepted, 53 who may accept, 53 for whose honor bill may be accepted, 53 presumption when party not named, 55 holder's option to refuse, 64 time for, 54 form, 55 for part of amount of bill, 55 effect on holder's right of action, 55 Acceptor Supra Protest: contract with holder, 229 estoppels which bind, 230 presentment for payment to, 180, 181 protest or dishonor by, 181 rights and duties on payment, 247-249 Acceptor, letter B, used to denote in illustrations, Introd. p. x defined, 2 INDEX. 287 Acceptor — continued. accommodation acceptor, 105, 230, 252. See Accommodation Bill. who liable as, 48 signaiture of, 42, 43, 84, 85 bankruptcy of. See Bankruptcy. death of. See Death. contract -witk holder,. 214 liability contrasted with drawer's, 214 compared with maker of note, 279, 280, 283 relations inter se of joint acceptors, 214 estoppels which bind, 214-216 when suit may be begun against, 31 measure of damages against, 217, 218 damages when laws conflict, 218 payment by, as a discharge, 235 efEect when he is holder of bill at maturity, 244 giving time to or compounding with, 249-253 presentment for payment to charge, 174. See Presentment for Payment. notice of dishonor to, 206. See Notice of Dishonor, Statute of Limitations as to, 262. J?OM> Liability (if Acceptor Negatived: conditional acceptance and condition unperformed, 175 efEect of accepting payable at particular place, 174-176 intention to sign a different document, 58 i forgery, etc., 90-93, 216 alteration, 215, 256-258 want of capacity, 72-77 want of consideration, fraud, illegality, 105, 108-114 property in bill not transferred to holder, 62, 63 jus tertii, 62, 105, 111 discharge of bill or discharge inter partes, 232-261 Accommodation Bill, defined, 105 value subsequently given for, 96. pledge of, 107 when deemed to be issued, 253 presumption as to bill being, 105, 113, 198 bankruptcy of drawer, wh en acceptor has security, 230 costs of defending action on, 231 negotiation after maturity, 143 presentment for payment, when excused, 170 notice of dishonor, when excused, 198 payment by acceptor or maker as discharge, 236 payment by person accommodated as discharge, 236, 237 288 INDEX. AccoMMODA TiON BiLL — Continued. discharge of surety by dealings with principal, 251, 252 ' foreign discharge of, 234 Statute of Limitations, 263,' 264 Accommodation Party: defined, 105 liability to holder for yalue, 107, 113' special defenses available to, 106, 107, 251, 252 liability to person accommodated,. 107 several accommodation indorsers, relations inter se, 221 . indorser, warranty of genuineness of body of bill, 222, 223. substantially a surety, 105, 2Sl, 252 rights on becoming a party, 280, 231 voluntary payment by, 231 rights of contribution inter se, 231 Accord and Satisfaction, 234, 261 Acknowledgment, to defeat Statute of Limitations, 266 Act of Honok, on acceptance supra protest, 55 on payment, supra protest, 247, 248 Action, de facto holder may bring, 148 by real party in interest, 149. in whose name when bill payable specially, 149 in whose name when bill payable to bearer, 149 defenses against holder suing as agent or trustee, 148 defenses available to accommodation party, 106, 107 on lost biil, 151, 152. * when husband and wife must join in, 116 costs of defending action on accommodation bill, 231. proceeding for costs against party sued concurrently, 235 transfer of bill after action brought, 145 Statute of Limitations, 262-266. See Limitations, Eight of: on, and collateral to, instrument, distinguished, 232 when complete against drawer or indorser, 264 maker or acceptor, 31 on bill, and on consideration, distinguished, 258, 259 giving bill suspends, 261 effect of renewing bill, 260 effect of acceptance supra protest on, 55, 56 Address, auflSciency of, when notice of dishonor sent by post, 187 INDEX. Address — continued. of drawer or indorser of dishonored bill not known, 201, 205 to drawee in bill, 9 -15, 49. Administkatob, when bill held by deceased vests in, 116 personal liability on bill signed as, 85 • bill of deceased delivered by, 61 effect when acceptor becomes the holder's, 244 effect 'when holder becomes the acceptor's, 245 Statute of Limitations as to, 265. See Death — Donatio Mortis Causa — Executor. Advice {Letter of), 211 Agent. See Principal and Agent. Allonge, 125. Alteeation, before or after issue, 253, 257 what material, 254, 255 what immaterial, 256 effect of material, on bill, 256, 257 effect of immaterial, on bUl, 256 by stranger to bill, 257 altered bill restored to original form, 258 to correct mistake, 258 effect on right to sue for consideration, 258, 259 onus probandi as to, 259 rights of bona fide holder of altered bill, 228, 257 re-issue of altered bill, and indorser's liability, 223, 253 negligence of maker, what effect, 257 acceptance after, in ignorjnce of, 215 payment in ignorance of, 241-244 distinguished from fraudulent filling of blanks, 35, 37, 38 Al/TBRNATIVE, drawee, 5 payee, 7, 8 maker of note, 5 place of payment, 34 mode of payment, 280 Amkkican Law, weight of, and reference to, Introd., pp. xii, xiii AuoMALOns Indorsement, 123, 220, 221 Antecedent Debt, as consideration for bill, 95, 99, 100 holder of bill as collateral security for, 99 paid by bill which is dishonored, 226, 261 19 290 INDEX. Ante-dated Instruments, 23, 24 Assignee in Bankruptcy, notice of dishonor to indorser's, 193 Assignee in Insolvbnct, notice of dishonor to indorser's, 193 Assignment, transfer by, 117 of non-negotiable bill, 118 . distinguished from negotiation, 121 See Equitable Assignment — Transfer. Attorney's Fees, effect of agreement for payment of, in bill, 17, 18 Authority, distinguished from capacity, 72 general rule as to, 77 to sign bills, may be verbal or written, 81 to sign bills, how construed, 82 to draw, no authority to indorse, 82 to draw check, no authority to draw bill, 82 to accept, no authority to accept for accomioodation, 82 to fill up blanks, 35-38 of partner in trading firm, 87, 88 of partner in non- trading firm, 88, 89 of surviving partner to draw check on firm account, 274 of agent. See Principal and Agent. when revoked by death, 38, 273, 274 false representation of, 83, 84 Aval, 123 Bank and Banker, effect given to usage among, 67 "marginal notes" of, 97 lien on customer's bills, 99, 100, 101 completion of payment by, 236 clearing-house recognized at law, 166 right to retain paid check against customer, 275 obligation to honor customer's checks, 272 obligation to honor bills, 273 custom as to post-dated checks, 67 no obligation to let customer overdraw, 273 effect of customer's death or bankruptcy, 273, 274 no obligation to holder of check, 212 liability to holder of certified check, 268 INDEX. 291 Bank and Banker — continued. paying forged check or bill, 91, 241 paying check held under forged indorsement, 240, 244 paying altered check, 241, 242 IS to crossed checks, 275 iuty as collecting agents, 152, 153, 164, 270 Branch Banks: general status as to bills, 272, 273 notice of dishonor sent through, 191 right to combine accounts against customer, 273 duty to pay checks drawn on another branch, 272, 273 BHl Accepted Payable, at Bank: duty to customer to pay, 273 no duty to holder, 212 a general aQceptance, 51 presentment for payment of, 165-167 ' payment when indorsement forged, 91 changing banker's 'name a material alteration, 255 Bank Notes, distinguished from ordinary notes, 227, 276 bill payable in, perhaps valid, 13, 14 payment of debt in, 227 Bankruptcy, holder's right of proof, 38, 213, 238 creditor holding security, 230 of acceptor before maturity, 53 , effect of foreign discharge, 238, 234 Of Holder, 118 Of Drawee or Acceptor: presentment for acceptance after, 158. presentment for payment after, 171, 172 notice of dishonor to drawer or indorser after, 202 protest for better security, 180 effect of taking composition from acceptor, 233, 250, 251 effect of part payment by drawer or indorser, 238 of drawee as breach of contract with drawer, 210, 211 Of Drawer or Indorser: to whom notice of dishonor to be given, 193, 202 of drawer as revoking drawee's authority to accept, 210 of drawer of accommodation bill, 230 of drawer of check, 273, 274 Bearer, included in term "holder," 3 Bill Payable to: ■whether bill is, when payee fictitious, 8 292 INDEX. Beaker — continued. Bill Payable to: bill indorsed in blank is, 122 negotiated by delivery, 122 effect of indorsing, 123, 128 who may sue on, 149 Belgian Code db Commbhcb, Introd. , p. xiv, 19, 210, 280 Bbsoin or Recommandataikb, 5. See Case of Need. Better Security, protest for, 158, 180 Bill, term aa used in articles, etc., Introd., p. x, 1, 267, 276 BiiL OF Exch;anqe, definition, 1 compared with check, 267 compared with promissory note, 276, 283, 284 when to be treated as a note, 3, 68 origin and history, Introd. , p. xvi sources of foreign law as to, Intro'd., p. xv different theories in England and France, Introd., p. xvii conflict of laws as to. See Conflict of Laws. Form and Interpretation, 1-71 parties, 2-9 order to drawee, 9-15 sum payable, 15-20 expression of consideration, 21, 22 date of making, 22-25 time of payment, 25-34 place of making and payment, 34, 35 inchoate bills, 35-88 inland and foreign, 38, 39 drawn in a set, 89-42 acceptance, 42-53 acceptance supra protest, 53-56 signature, 56-58 delivery, 58-63 , construction, 63-68 Capacity of Parties, 72-77. See Capacity. Authority of Parties, 77-90. See Authority— Partner and Partner- ship — Principal and Agent. Forgery, 90-93. See Forgery. Consideration for, 94-114. See Consideration. Transfer, 115-148. See Transfer. Actions on and Proof, 148-151. See Action— Onus Proband* and Presumptions. , INDEX. 293 Bill of Exchaitge — continued. Du/ies of Holder, 152-209. presentment for acceptance, 152-160 as to qualified acceptances, 160 presentment for payment, 160-176 noting and protest, 177-180 presentment to case of need, 180-182 presentment to acceptor supra protest, 181 notice of dishonor, 182-208 on receiving payment, 209 Contracts Arising out of, 210-231 drawee and drawer, 210, 211 drawee and holder, 212, 213 acceptor and holder, 214-218 drawer or indorser and holder, 218-226 transferor by delivery and transferee, 226-229 acceptor supra protest and holder, 229, 230 accommodated party and person accoiflmodated, 230, '231 Discharges, 232-261. See Discharges. Limitation of Actions, 262-266. See Limitations. Btulm Nundinalbs, 28 Blank or Blank Signature, blank signatures, 85 authority to fill up in bill, 35 effect if not filled up, 8, 15, 38 fraudulently filled up, 36, 37, 241 - filling up date, 22 Blank Indorsbmekt, definition, 126 effect, 126, 127 conversion into special, 127 .followed by special, 128 action on bill so indorsed, 149, 150 Bona Fides, 6oMa ^rfe holder, 101, 102 test of, in holder, 102, 103 presumption of, in holder, 113, 114 test of, in payor, 240 of person without title receiving payment, 242, 243 Branch Banks, 191, 272, 273. See Bank and Banker. Brokkb [Uen of), 99, 100, 101 Cancellation, of bill or signature by holder, 246, 247 if by mistake, 247 294 INDEX. Cancbllation — continued. of bill by order of court, 93, 111 of acceptance by drawee, 60 of indorsement by indorser, 59, 60 Capacity, distinguished from authority, 72, 216 to incur liability, 72 to transfer, 72, 74, 75, 77 general rule, 72 person non compos mentis, 73 alien enemies, 73 infant's liability on bill, 73 — '■ power to transfer bill, 74 married woman's liability, 74 '■ power to trarisfer, 75 company or corporation's liability, 75-77 power to transfer, 77 trading and non-trading companies, 'i6, 77 Case of Need, meaning of term, 5 designated by indorser, 180 accepting without protest, 48 duty of holder to present to, 180, 181 Cases, list of overruled or doubted, p. xlix Certainty {Requisite in Bill or Note). fact of payment, 9 time of payment, 25-80 , designation of drawee, 4, 5 of payee or indorsee, 7, 138 sum payable, 16-1.9 Cbetificate of Deposit, whether a promissory note, 278 Certified Checjk, 268 '^\ ' Check, defined, 267 provisions as to bills how far applicable to, 267 distinguished from ordinary bill of exchange, 267 note payable on demand, 268 not intended for acceptance, 268 effect of certifying check, 268 crossed checks, 275 time for presenting in general, 268-271 to charge drawer, 270 INDEX. 295 Check — con tin ued. time for presenting to charge indorser, 271 when deemed overdue or stale, 271 banker's duty to customer to honor check, 272 effect of drawer's death or bankruptcy, 273, 274 donatio mortis causa, 274 property in paid check, 275 construction of authority to draw, 82, 89 authority of surviving partner to draw, 274 if payment stopped, wholly inoperative, 261, 273, 274 liability of non-trading corporation on, 77 French law, 268 Ante or Post-Dated: validity, 23, 24 operation of, 23, 272 authority to draw constSrued, 82 authority of partner to draw, 89 maturity calculated from date, 24 custom of London bankers not to pay, 67 See Banh and Banker — Bill of Exchange. Chose in Action, bill assigned as, 117, 121. See Transfer. Christmas Day, bill falling due on, 33. See Dies Non. i excluded in computing time, S3, 269 Clearing House, presentment of bill through, 166 Coercion, 110 CorNCIDBNCB OP RlQHT AND LlABILITT, 244, 245 CollatbbaIj Skcttkity, evidence to show bill given as, 63 amount of recovery by holder of bill as, 98 holder, when a holder for value, 98-100 note containing pledge of, 280 CoiiECTiON {Indorsement for). in express terms, 132. See Restrictive Indorsement. revocation by indorser, 129 misappropriation by indorsee, 62, 63, 98, 113, 114, 145 rights of indorsee, 145, 148 duties of collecting agents, 164, 270 Company. See Corporation. , COMPENSATIO, 233 296 ■ INDEX. Composition, effect of taking from acceptor, 233, 251. COMPHOMISB OF ClAIM, as consideration for bill, 94 Computation, time of payment, 24, 30-34, 71 sum payable, 19, 20 damages on dishonor. See Damages, Conditional, bill or note, 9, 10, 64, 65, 276 ^acceptance, 51. See Qualified Acceptance. indorsement, 10, 180, 131 payment, 261 delivery of bill absolute in form, 62, 63 Conflict of Laws, requisites in form, 68-71 interpretation, 70 ex past facto legislation, 19 ' duty to present to case of need, 181 effect of dishonor by non-acceptance, 169, 226 depreciated currency in place of payment, 19 computation of time of payment, 33, 34, 71 notice o£ dishonor, 206 protest, 178 foreign discharge, 233, 284, 265. damages against acceptor, 218 drawer or indorser, 226 Statute' of Limitations, 265 CoNFusio, 245 CONSIDBKATION, necessity, for acceptance, 215 what constitutes, 94-96 adequacy of, 96 ' by whom furnished and when, 96-98 for original bill in case of renewal, 260 absolute payment of pre-existing debt, 95 conditional payment of pre-existing debt, 95, 99 collateral security for pre-existing debt, 99, 100 pro tanto in case of pledge or lien, 98-100 want of, creating privity between remote parties, 104 presumption of, 21, 105, 113, 114 what evidence shifts onus probandi as to, 113, 114 holder for value, 96-98 INDEX. 291 Consideration — continued. honafide holder for value without notice, 101 holder claiming under 6o«a^(ie holder, 103, 104 Defenses Arising out of: when it may be inquired into, 104 absence of, 106 partial absence of, 106, 114 failure of, 108 partial failure, 109, 110 illegality, total or partial in, 111, 112 illegal by statute, 112, 113 unconscionable bargains, 96 Expression of: how expressed, 21, 22 required in notes given for patent rights, 21 ' evidence to negative, when expressed, 21, 22 vary, when expressed, 21, 22 effect if expressed to be executory, 22 Liability on: distinguished from liability on instrument, 78, 208 warranty of genuineness, 228 discharged by holder's laches, 152 presentment for payment to qharge person liable on, 176 notice of dishonor to person liable on, 208 effect of alteration on, 258, 259 CONSTKUCTION, bills and notes in general, 63, 64 address to drawee and acceptance read together, 49 evidence of usage when admissible, 66 irregular bills ut res magis valeat, 67, 68 signature as principal's or agent's, 50, 82, 84-87 authority to sign bills, 81 agreements to renew, 260 written notice of dishonor, 196 verbal notice of dishonor, 197, 198 See . CONSTKUCTIVB POSSESSION, what it is, 60 delivery effected by change in, 60 giving right of action on bill payable to bearer, 149, 150 Contingency, bill or note expressed to be payable on, 9, 11, 26-30, 276 Contribution, . on payment by joint acceptor, 232, 264 298 , INDEX. COHTRIBUTION — con tinned. accommodation parties, 231 Co-OWNBH. See Joint Parties. Copy, foreign copy distinguished from set, 40 indorsement on foreign "copy," 126 presentment for payment and protest when bill lost, 165 COKPOBATION, trading and non-trading, 76, 77 capacity to pon tract by bill, 76 power to transfer bills, 77 . signature of, 57 effect of attaching seal of, to note, 281. tests of liability, 57 bill drawn on, accepted by oflBcer in his own name, 49, 50 officer, accepted in name of corporation, 50 bill payable to, indorsed by officer in his own name, 86 liability of director drawing bill or signing note for, 85, 86 Costs, defending action on accommodation bill, 230 proceeding for, when parties sued concurrently, 235 lien on bill for, 238, n. Ceedit; open letter of, 213 letter of, defined, 213 general and special letter of, distinguished, 213 Ckoss Acceptance, 94 Cbossed Chece, 275 Custom of Trade, laws of bills founded on, Introd.. p. xvi evidence of, when admissible, 66 novelty of, when immaterial, 66, 67 judicial decision overrides, 66 See Usage. I Damages {Measure of). action by drawer against drawee for not accepting, 211 holder against acceptor or maker, 214-218 holder against drawer or indorser, 223, 224 customer against banker dishonoring check, 211 accommodation party on contract of indemnity, 230, 231 conflict of laws, 218, 226 " • INDEX. il99 Date, insertion of, in bill, 22 omission of, in bill payable after date, 23 • ante-dating and post-dating, 23 fixes maturity of bill, 24 '- presumed issued on day of, 24 ' unless dated on Sunday, 24 when interest runs from, 20 when Statute of Limitations runs from, 262, 263 alteration of, when material, 254, 256 not necessary to acceptance, 46 , omission in acceptance of bill payable after sight, 46 place of date as against honajide holder, 70 Days op Grace, allowed on all bills not payable on demand, 30 whether suit may be begun on last day of grace, 31 transfer on last day of grace, 140, 141 determined by lex loci solutionis, 33, 34 presentment on second day of grace, invalid, 162 bill without grace falling due on dies non, when payable, 33 waiver of, 31 Death, Of Holder: joint payees, 117 title to bill, 116, 117 inchoate bill, 35, 38 bill drawn payable to deceased person, 8 Statute of Limitations when intestate, 265 delay in presentment or notice of dishonor, 172 acceptor becoming executor or administrator, 244, 245 Of Drawer: drawee's duty to accept bill, 210 banker's authority to pay checks, 273, 274 notice of dishonor, 193, 202 Of Indorser: notice of dishonor, 193, 202 before delivery of bill to indorsee, 61 Of Drawee, or Acceptor, or Maker: presentment for acceptance, 157 — ; payment, 167, 169 notice of dishonor, 202 holder becoming executor or administrator, 245 indorser becoming executor, 200 See Administrator — Executor — Donatio Mortis Causa, 300 INDEX. Debt, antecedent or pre-existing, as consideration, 94, 99 whether bill is conditional or absolute payment of, 261 Deed, transfer of bill- by, 117 De Facto Holdbb, defined, 135 distinguished from holder, 135 mere possessor, 135 .' . power to give good title to transferee, 145 valid discharge, 239 . right of action on bill, 145 Definitions. See Interpretation. Delivekt, necessity for, 58 what amounts to, 58-61 by whom it njust be made, 61 transferor by, 226-229 conditional, 62, 63 obtained by fraud, 61 negotiation of bill payable to Nearer by, 122 of bill payable to order without indorsement, 118, 119 liability of transferor by, 226-229 place of, as against honafide holder, 70 Demand (Bill or Note Payable on): See Check. what bills in legal effect are, 25 acceptance of, 155, 268 when deemed overdue, 140, 271, 281, 282 presentment to charge maker or acceptor, 174, 175 drawer or indorser, 162, 282 ^ Statute of Limitations as regards maker, 263 drawer or indorser, 264 interest by way of damages on, 217 See Presentment for Payment. Destruction of Bill. See Lost Bill. payment when proved, 209 notice of dishonor, 202 if voluntary, no recovery thereon, 151 Dies Non, bill falling due on, 33 if not entitled to grace, 33 presentment for acceptance, 156 bill left for acceptance, 157 INDEX. 301 Dies ITon — continued. notice of dishonor, 188, 190 presentment of check, 269 DiLiGBNCB [Due or Seasonable), 158, 171, 187, 201, 205, 227, 22S Directors, when personally liable on bills signed for company; 48, 49, 85 power of de facto, 57, 58 Discharges, discharge defined, 232 effects of , discharge, 232 discharge of bill and of party, distinguished, 233 liability of transferor of discharged bill, 232 discharge inter partes, 233, 239, 246 discharge when laws conflict, 233, 240, 265 Different Kinds : payment in due course, 234-244 payment for honor supra protest, 247-249 coincidence of right and liability, 244-247 confusio, 245 waiver or cancellation, 245, 246 alterations, 253-259 renewal, 260, 261 novatio, 261 discharge of surety by dealings with principal, 249-:353 compensatio, 233 foreign prescription, 265 discharge under bankruptcy laws, 233, 250 part payment as pro tanto discharge, 235 DiscotWT OF Bill, 100 Dishonor, By Non-acceptance: defined, 159 consequences of, 159 re-presentment after, 46, 159 omission to give notice of, 183, 184 negotiability and status of bill after, 141 subsequent acceptance, 46 measure of damages against drawer or indorser, 223, 224, 225 Statute of Limitations, 263 , as breach of contract with drawer, 211 rights of holder against drawee, 212 302 INDEX. Dishonor — continued. By Non-payment : defined, 173 consequences, 173 By Acceptor Supra Protest, 181, 182 "Domicile," meaning of term as applied to bills, 34 Donatio Mortis Causa, bill drawn by third party held by donor, 119, 120, ;74 donor, 120 check drawn by donor, 274 Draft, 1 Drawee, letter B used in illustrations to denote, lutrod. p. x defined, 2 same person or firm as drawer, 3 ] — as payee, 2 fictitious, 3, 158, 170, 200. See Fictitious Name or Party. person not having capacity to contract, 158, 170, 200 designation in bill, 4 certainty required in address to, 4, 67 ■ alternative, 5 joint, 5, 169. See Joint Parties. address to, construed with acceptance, 49, 68 requisites of the order to, 9-15. See- Order to Drawee. acceptance by, 48, 49, 78 person who is not, 48, 220 one of several, 48, 52 bill left for acceptanoe.with, 157 revocation of acceptance by, 60 obligation to accept or pay, 210, 272 damages against, for non-acceptance, 211 privity with holder, 212 holder's right to fund in hands of, 212 when the agent of holder for giving notice of dishonor, 185, 191 death of, 157, 167, 169, 200, 202. See Death. bankruptcy of, 211. See Bankruptcy. payment by, as a discharge, 235 presentment for acceptance to, 152-160. See Presentment for Acceptance. payment to, 160-173. ^e.& Presentment for Pay- ment. See Acceptor — Bank and Banker — Check — Payment — Dishonm: INDEX. 303 Drawer, letter A used in illustrations to denote, Introd. p. x defined, 2 distinguished from maker of a note, 283 o£ bill and of check distinguished, 161, 267 same person or firm as payee, 2 as drawee, 3 joint drawers, 194. See Joint Parties. signature, 4, 35, 56 delivery of bill to payee, 58, 61, 62 fictitious person, 37, 147, 214. See Fictitious Name or Parly. forged or unauthorized signature of; 215, 222, 228, 242. See For- gery. contract with drawee, 210. death ot,198, 202, 210, 273, 274. See Beafh. bankruptcy of, 202, 210, 230, 233, 273, 274. See Bankruytey. accommodation bill for drawer's benefif, 105, 106, 107, 108, 198, 230, 252. See Accommodation Bill. accommodation drawer, 106, 199, 230. See Accommodation Bill. capacity of, 72-77. ' See Capacity. authority of. See Authority — Partner and Partnership — Principal and Agent. how far a surety as regards acceptor, 219, 250, 251 relation to indor.sers, 250, 251 payment by, as a discharge, 237, 238 taking up bill in.a set, 40 re-issue by, 138, 237 obligation to give a set, 40 contract with holder, 218, 219 interpretation of contract when laws conflict, 68, 69, 226, 233. See Conflict of Laws. estoppels which bind as such, 219 measure of damages against, 223,. 226 Statute of Limitations as to, 263 How Liahility Negatived: intention to sign different document, 53 forgery, 90-93 alteration, 253-259 consideration negatived (including fraud, illegality), 104, 106- 114. transfer of property in bill to holder negatived, 61-63 capacity to contract negatived. 72-77. non-performance of holder's duties, 152-209 jus tertii, 62, 105 discharge of bill or discharge inter partes, 232-259 304 , lifDEX. Duplicate, right to have bill drawn in a set, 40 DUEBSS, 110 Equitable Assignment, order amounting to, distinguished from bill, 12 negotiation of bill distinguished from, 121 bill as subject of, 117-120. See. Transfer. non-negotiable bill, 118 check does not operate as, 212 Equity (^Court of). See Injunction — Mistake. Equity Attaching to jBill, 141-144 Erasure, effect of, 255' onus probandi as to, 259 Escrow , • bill delivered as, 63 Estoppel, by negligence, 93, 241-244 by agreement or evidence, 81, 92, 147 distinguished from ratification, 91 person disputing his own signature, 81, 91, 92 ' authority to fill blanks, 85 authority of partner in trading firm, 87 - married woman representing herself single, 74 Arising on Bill: from drawing, 219 from accepting, 74, 75, 214, 243 infant trader, 73, 74 from indorsing, 222 from accepting supra protest, 230 from making note, 284 Etidencb, of usage or custom, 66 to show oral discharge, 64, 246 to vary or Contradict terras o£ bill, 63, 250 where language of bill ambiguous, 65 n. contemporaneous or collateral writings, 66 parol, as to indorsement in blank, 64 undated bill expressed to be payable after date, 22 of time of issue of ante or post-dated bill, 28 undated acceptance of bill payable after sight, 46 to show delivery was conditional, 61-63 to supply blanks, 8, 16, 22, 46 INDEX. EviDKNCB — continued. to identify payee when misdeseribed, 7 to negative consideration, 21, 64. See Consideration. to show different consideration from that expressed, 21 , of notice of dishonor by admission of liability, 204 of waiver of notice of dishonor, 202, 203 to show relationship of principal and surety, 250 to charge undisclosed principal, 77, 78 estoppels. See Estoppel, onus probandi. See Onus Prohandi and Presumptions. Exchange, contract of, underlying bill, introd.f p. xvii rate fixed by indorsement, 18 bill payable " with current exchange," 18 unauthorized iiidorsement of a rate of, 255 See Ee-exchange. Executor, when bill held by testator vests in, 116 authority to fill up inchoate bill, 35,36 personal liability on bill signed as, 85 delivering bill made or indorsed by testator, 61 effect when acceptor becomes holder's, 244 ^holder becomes acceptor's, 245 See Administrator — Death — Donatio Mortis Causa. ExEctrroRT, consideration expressed on bill, 22 contract of indorser, 123, 124 ex-partnebs, 89 EacuiiTativb Indorsement, 130 FAiLtms OF Consideration, 108-111 Fictitious Name or Party, real person using fictitious name, 49, 79, 80 Fictitious Drawer: title through, 37 acceptor's estoppels, 214 acceptor supra protest's estoppels, 230 indorser's estoppels,-222 Fictitious Drawee, Acceptor or Maker: instrument, bill or note, 3 presentment for acceptance, 158 — payment, 170 notice of dishonor, 200 20 306 INI^EX. Fictitious Name or Party — continued. Fictitious Payee and Indorser: title through, 146, Ul, 216 acceptor's estoppels, 216 drawer's estoppels,' 219 indorser's estoppels, 222 maker's estoppels, 284 how if obviously fictitious, 9 New York statute, 9 Firm. See Partner and Partnership. rLUCTUATINO BATjANCE, as consideration for bill, 98, 99 Foreign Bill, defined, 38 Foreign Codes and Laws, references to, Intfod., p. xv. See Conflict of Laws. Foreign Cureenct, computation of sum payable, 19. See Sum Payable. Foreign Discharge, 233, 238, 265. See Discharges. Forgery, cancellation of bill by order of court, 93 recovery of money paid, 241-244 distinguished from breach of trust, 37 renewal of forged bill by mistake, 114 bill drawn against forged bills of lading, 108 Forged or Unauthorized Signature: liability on, 90-98 title made through, 90-93 ratification, 91 payment in general, 90-93 wife's indorsement forged by husband, 92 party estopped from disputing his own, 92, 93 estoppels arising on bill, 214, 219, 222, 230, 284. See Estoppel. Fraudulent Alteration: general effect, 256 acceptance after, 215 negotiation after, 228, 257 payment after, 241-243 Fraud, affecting current bill, 110, 145 ' overdue bill, 141 original bill in ease of renewal, 260 property in bill obtained by, 110, 111 INDEX. 307 'Fb.a.vd— continued. injunction to restrain negotiation, 111 evidence to shift onus probandi as to value, 113 Special Cases: check in favor of third party obtained by fr^ud, 61 partner giving firm bill for private debt, 87, 90, 91, 114 diversion of accommodation paper, 110, n. indorsee for special purpose misappropriating bill, 62, 63 blanks fraudulently filled up, 36, 37, 146 personation of payee, 240 bill accepted on faith of forged security, 108 See Forgery. YvssscE.liAvr {of Bills). " French Code," what and how cited. In trod., pp. xiii, xiv weight given to in England, Introd., p. xiv theory of, compared with English, Introd., p. xvii, xviii summary of points of difference, Introd., p. xviii, xix notes and billets au porteur, 276 General Acceptance, 50, 160. ^sb Acceptance, Gbnbraii Indohsembnt, 126 i German Exchange Law, Introd., pp. xiv, xv Gift, as consideration for bill, 94 of bill made by third party, 98, 107 liability of donor on bill, 107 In Contemplation of Death: bill held by donor drawn by third party, 119, 120 bill drawn by donor, 120 check drawn by donor, 274 Good Faith. See Bona Fides. Grace, Days of, 30-34, 196. See Daifs of Grace, Guarantor, presentment for payment to charge, 176 notice of dishonor to, 207, 208 when indorser regarded as, 220, 221 relations of several inter se, 252 History, of negotiable instruments, Introd., p. zvi case law and code lavr.compared, Introd., p. si EOIDSR, defined, 3 de facto holder, 135 308 INDEX. HoiDBR — continued. holder for value, 96-100 as pledgee having a lien, 98 as collateral security, 99, 100 honafide holder for value without notice, 101-103, 113 holder claiming under honafide holder, 103 relations with drawee of unaccepted bill, 212 acceptor or maker the holder at maturity, 244 marriage of, when a woman, 115. See Husband and Wife, death of, 116, 117. See Death. bankruptcy of, 118 laches of, 152 ' Duties: presentment for acceptance. 152-160 payment, 160-176, after taking qualified acceptance, 160, 175 protest of bill. 177-180 presentment when reference in need, 180-182 to acceptor supra protest, 181 notice of dishonor, 182-208 '"^ on receiving payment, 209 transfer of bill in a set, 40 payment to a true holder, 239, 240 warranty of title to receive payment, 244 to keep bill intact, 258 Rights: further negotiation of bill, 138, 139, 145 with defective title to give good title, 145 to have bill drawn in a Set, 40 option to take acceptance supra protest, 54 return of bill left for acceptance in twenty-four hours, 157 option as to qualified acceptance, 160 of one part of a set, 42 of action and proof, 148-151 to fund in hands of drawee, 212 HOLTOAY, bill falling due on, 33, 156, 157, 188, 190, 269. See Dies Non. HONOB, act of, 55- See Acceptance for Honor — Payment for Honor, Hours (Eeasohaile), 156, 162 Husband and Wife, common law rules modified by statute, 116 INDEX. Husband and Wipe — continued. Husband: when bill payable to wife vests in, 115 indorsing bill payable to wife, 92, 116 action by, on bill payable to wife, 116 notice of dishonor given to wife, 193 bill addressed to, but accepted by wife in her own name, 49 Wife: capacity to incur liability, 74 power to transfer bill, 75, 115 indorsement forged by husband, 92 right of survivorship in bill, 115 when joinqd with husband in action, 116 Identity, payment to wrong person of same name as payee, 90, 240 duty of person demanding payment to prove, 240, 241 Illegal Consideration, current bill. 111, 112 overdue bill, 142 renewed bill, 260 stock- gambling contract. 111, n, wager, 112 Ilmjstkations, ' letters used instead of names, Introd. , p. x same letter always used to denote same party, Introd., p. x Immediate and Eemote Pasties, 104 Inchoate Bill ok Fote, 35-38 Indemnity, action on lost bill, 151 Indian Code, Introd., p. xv Indorsee, defined, 123 included in term " holder," 8 certainty required as to, 138 rights under conditional indorsement, 130, 131 restrictive indorsement, 132-135 Indoesement, defined, 123 no part of the bill or note, 10 delivery requisite to complete, 58. See Delivery. how far a new drawing, 221, 222 transfer of.bill payable to order without, 118, 119 310 IXDEX. IinjOESEMENT — continued. bill payable specially, 127 bill already payable to bearer, 123, 128 overdue bill, 141-144, 2.05, 206 non-negotiable bill, 221 requisites in form, 124, 125 place on bill, 125 irregular or anomalous. 123, 220, 221 by separate writing, 125 on "copy " of foreign bill, 126 < bill in a set, 40 allonge, 125 strikfng out, 128, 129, 237. See Cancellation. interpretation when laws conflict, 70 authority to indorse, 81, 82 forged or unauthorized, 90-93 presumption as to time when undated, 139, 140. indorsement for part amount, 126 general or in blank, 126 ' , special or full, 127 conversion of blank into special, 127 blank followed by special, 128 qualified or without recourse, 129 facultative, e. g., waiving notice, 126, 130 giving reference in need, 130 conditional, 10, 130 restrictive, 132 for special purpose, 61 for collection, 108, 132, 138, 148, 149. See Collection. by holder, 135 by person not the holder, 123, 135, 220, 221 by person to whom bill is transmitted by act of law, 137 by holder when misdescribed, 136 by holder under different name, 136 by agent. See Principal and Agent. by partner. See Partner and Partnership. bj* bankrupt. See Bankrupt. by one of several payees, 137. to party liable on bill, 138 to prior holder, 138 when court will compel, 118 restrain, 93, 109, 110, 111, 145 Indokseb, defined. 123 quasi-indorser, 123, 220, 221 INDEX. 311 Indoesbk — continued. of overdue bill, 162 revocation of indorsement by, 59 signatare of, 57 contract of, severable from transfer, 123, 124 same person or firm as payor, 199, 237 capacity of, 72-77. See Capacity. fictitious. See Fictitious Name or Party. death of. See Death. who liable as, 219-2^1. liability of indorser "without recourse," 129, 226-229 contract with holder, 222. estoppels which bind, 2, to signature of corporation, 57 effect of adding to bill" or note, 280, 281 of notary to protest, 177 Skcobitt, collateral. See Collateral Security. protest for better, 180 rigbt of surety to creditor's, 230 Set {Bill drawn in). how drawn, 39 whole set one bill. 39 obligation of drawer to give, 40 ■ duties of holder as to, 40 rights of holder of one part, 42 acceptance, 41 indorfement, 40 paymi nt, 41 taken up by drawer or indorser, 40 Set-off, •whether an equity which attaches to bill, 142 agreement to set off, 234, n. holder suing as agent or trustee, 148 surety sued by holder, 106 compensatio, 233 SlOHT, meaning of, in bill, 32 "after sight," meaning of, in note, 32 presentment of bills payable at or after, 153, 154, 161, 162 grace allowed on bills payable at or after, 80 SlSNATCEE, defined, 56 immaterial by what hand, if authorized, 81 what sufficient in point of form, 56, 57 of corporation, 57, 281 intended for wholly different instrument, 58 blank, 35-38, 146. See Blank or Blank Signature. of drawer, 4, 56 ■ of indorser, 123, 124, 219, 220 of acceptor, 42, 43, 84, 85 of acceptor supra protest, 55 of maker, 56, 220, 221,276 essential to liability, 77 firm signatures, 78-80 332 INDEX. SiGNATLTRE — Continued, real person signing in fictitious namOi 79, 80, 83, 84. See Fietilious Name or Party. effect of, " per proc," 82, 88 ' liability of person signing as agent or representative, 84-87 forged or unauthorized, 90-93. See Forgery — Estoppel. canceled by mistake, 247 authorities to sign for another, 81. 82 to notice of dishonor, 196 " SiNGM Bill," 56, n. Special Indokskment, definition, 127 effect, 127 distingtiished from restrictive, 133 ' certainty required as to indorsee in, 138 indorsement in blank converted into, 127, 128 action on bill so indorsed, 149 Spoliation, 257 Stake-holder, delivery of bill to, 59 Stamp or Die, sufficiency of signature, 56 Statute of Frauds. 220 Statute op Limitations. See Limitations. Stock-Gambling Contracts, 111, n. Stolen Bill, title of lonafide holder to, 62, 114, 136 onus proiandi as to value, 114 payment to thief when a discharge, 240 inchoate bill, 35, n. Stranger to Bill, indorsement by, 123, 220, 221 acceptance supra protest by, 53 payment by , 235-237 payment supra protest by, 248 rights of. as equity attaching to bill, 143, 144 acceptance for accommodation of, 105 action on bill payable to bearer by, 149 alteration by, 257 presentment for payment to charge, 176 notice of dishonor to, when necessary, 108 given by, 184 INDEX. 333 Striking out Indoesbmbnts, 128 Suit. See Action. Sum Payable, insertion of, 15 bill drawn for any sum, 15 certainty required in statement, 16, 17 bill payable on or before corbiin date, 17 stipulation for payment of attorney's fees, 17 bill payable in installments, 18 with current exchange, 18 in merchandise, bank notes, etc.., 13, 14 discrepancy between words and figures, 16 effect when left blank, 17 authority to fill blank, 35, 36 blank tor, fraudulently filled up, 35, 36, 241 How Computed: bill payable in foreign currency, 19 deprecinted currency, 18 bill expressed to bear interest, 20 bill payable according to exchange, 18 Alteration of: ' effect, 254, 267 acceptance in ignorance after, 215 negotiation in ignorance after, 228, 257 recovery of money paid in ignorance, 241, 243 Sum Rbcovbrablb. See Damages. Sunday, bill falling due on, 33 and not entitled to grace, 33 bill issued on, 24, 25 when excluded in computing time, 157, 188, 190, 269 See Dies Non. Surety. See Principal and Surety. Survivorship, wife's right of, in bills, 115 Suspension [of Eight of Action). renewal of bill, 260, 261 acceptance supra protest, 55 bill given in payment, 261 Tender, of amount due, when days, of grace waived, 31 Time (in General). See Eeasonable Time — Dies Non. 834 INDEX. Time of Payment, certainty required as to, 26-30 qualified by acceptance, 51, 52. See Qualified Acceptance. effect of alteration in, 254, 256, 258 effect of prepayment, 239 How Computed: no time expressed, 25 bill payable " on presentation" or " on demand" at sight, 26 bill accepted after maturity, 25, 47 bill indorsed after maturity, 25, 205, 206 bill payable by installments, 29, 30 bill payable at nr after sight, 32 days of grace, 30 dies non, 33, 269 usance, 32 conflict of laws, 33, 34, 71 Trade and Tbadbr, terms "' trade" and^" business" not co-extensive, 88 trading and non-trading corporations, 76, 77 ' partnerships, 87, 88 capacity to trade, 72 Transfer, (A) By Act of Law: marriage, 115 death, 116, 117 (B) By Assignment according to General haw: equitable assignment or deed, 117 bill payable to order transferred without indorsement, 118 donatio mortis causa, 119, 120, 274 (G) by Negotiation according to Law Merchant: negotiation defined, 120 what bills negotiable, 121 In what manner: mode determined by form, 122 bill payable to bearer, 122, 123 to order, 123 indorsement defined, i23 indorsement as containing two contracts, 128, 124 formal requisites of indorsement, 124, 125 place for indorsement. 125 partial indorsement, 126 indorsement in blank, 125 special indorsement, 127 conversion of blank into special indorsement, 127 blank indorsement followed by special, 128 INDEX. 335 Transfer — continued. ' ' lu what manner: qualified indorsement, 129 facultative indorsement, 130 indorsement with reference in need, 130 conditional indorsement, 130, 181 restrictive indorsement, 132-135 By whom: by de facto holder, 135 by person not de facto holder, 136 several payees or indorsees, 137 To whom: certainty required as to indorsee, 138 re-transfer and re-issue, 138, 236, 238, 245, 253 At what time: to what extent negotiable, 139, 141, 145, 232 transfer before completion, 35-38 negotiation before issue by maker, 61 presumption as to time, 139, 140 when bill deemed overdue, 140, 272, 281, 282 transfer on last day of grace, 140, 141 negotiation after maturity, 141, 142 dishonor by non-acceptance, 141, 183, 184 action brought, 145 discharge, 232, 253, 258 Eights resulting: transfer of discharged bill, 232 general rights of holder, 145 right of de facto holder with defective title, 145 irregularity patent on bill, 146 title through fictitious payee or indorser, 146, 147 de facto holder's right of action, 148 in whose name action on bill payable specially, 149 to bearer, 149 action on lost bill, 151 Tbansfbeor by Demvert, defined, 226 non-liability on bill, 226 liability on consideration, 226, 227 warranty of, 227, 228 Tr-ctst, declaration of, as to bill, 117 Tbtjstee, meaning of term as applied to bills, 135 336 IND^X. Tritstee — continued. indorsee under restrictive indorsement ae, 135 holder paid in part by drawer or indorser deemed, 238 pledgee regarded as, 100 holder suing as, 148 Usage, when evidence of, admissible, 66 how proved, 66 holiday by, 33 as to allowance of grace, 66, n. as to demand by notary's clerk, 66, n., 177, 178 of bank paying check to ascertain genuineness of indorsement; 67 See Custom of Trade. Usance, 32 UstJET Laws, 20, 113 Value, defined, 94. See Consideration. " Value Receiyed," construction of the term, 21 bill imports consideration, though not expressed to be for^ 21 Varying Acceptance, 60. See Qualified Acceptance. Vis Major, 172 Void Bill, when by statute, 112 transfer by delivery without indorsement, 228 when valid as equitable assignment, 12 • agreement, 279 Wager, as consideration for bill, 111, n., 112 Waiver, of bill by holder, 245 of liabilities of t)arties by holder, 246 of presentment for payment, 172 of protest, 130, 180 of notice of dishonor, 130, 202-204 , revocation of, 204 of delay in giving notice of dishonor, 205 distinguished from admission of due notice, 204 of maker's rights in note, effect of, 15 of days of grace, 31 INDEX. 337 Want of Consideration, current bill, 106, 107 , overdue bill, 1.43. See Accommodation Bill. Wakrantt, of indorser, 222 of transferor by delivery, 227, 228 of genuineness distinguished from liability on consideration, 228 > of solvency, 229 of title to bill bj person demanding payment, 244 See Estoppel, Widow, right of survivorship in bills, 115 wife respresenting herself as, 74 Wife. See Husband and Wife. " Without Geacb," 31 " Without Ebcourse." 129 Words" or Phisasbs. See Interpretation. 22