/?o:l 
 
 (Snrnpll ICaui i^rl^nnl ICtbrary 
 
Cornell University Library 
 KF 956.A43C89 1902 
 
 The negotiable instruments law :f rom the 
 
 3 1924 018 854 111 
 
THE 
 
 NEGOTIABLE INSTRUMENTS LAW 
 
 From the Draft prepared for the Commissioners on Uniformity 
 
 OF Laws, and Enacted in New York, Massachusetts, Rhode 
 
 Island, Connecticut, Pennsylvania, District of Columbia, 
 
 Maryland, Virginia, North Carolina, Tennessee, 
 
 Florida, Wisconsin, North Dakota, Colorado, 
 
 Utah, Oregon and Washington. 
 
 THE FULL TEXT OF THE LAW AS ENACTED, 
 WITH COPIOUS ANNOTATIONS. 
 
 BY 
 
 JOHN J.'^^AWFORD, 
 
 Of the New York Bar, 
 
 BY WHOM THE STATUTE WAS DRAWN. 
 
 SECOND EDITION. 
 
 NEW YORK: 
 
 BAKER, VOORHIS AND COMPANY. 
 
 1902 
 
Copyright. 1902, 
 By John J. Crawfokd. 
 
PREFACE TO SECOND EDITION. 
 
 When the first edition of this book was published, the Ne- 
 gotiable Instruments Law had been passed in four States, 
 viz. : New York, Connecticut, Florida, and Colorado. In the 
 four years which have elapsed since then it has been enacted 
 in Massachusetts, Rhode Island, Pennsylvania, Maryland, 
 Virginia, North Carolina, Tennessee, Wisconsin, North 
 Dakota, Utah, Oregon, and Washington, and has also been 
 adopted by Congress as the law of the District of Columbia. 
 In most instances the law has been passed in the form pro- 
 posed by the Commissioners on Uniformity of Laws ; but in 
 several States a few minor changes have been made. These 
 are indicated in the notes to this edition. I have also en- 
 deavored to point out the changes made by the law in the 
 different States, and have added to the notes citations to the 
 decisions in all the States where the statute is now in force. 
 It is somewhat notable that so few cases have arisen under 
 the Act. The reported cases number only about a half dozen 
 in all ; and in most of these the court was required only to 
 apply the act, and not to construe it. Perhaps nothing could 
 better demonstrate that the practical working of the law has 
 been satisfactory. As in the previous edition, the text is 
 that of the New York Act. For the information of the pro- 
 fession outside of New York it may be stated that the hiatus 
 in the section numbers does not indicate the omission of any 
 sections, but is in accordance with the plan adopted in all 
 the " General Laws" of this State. 
 
 John J. Crawford. 
 30 Broad Street, New York, February i, 1902. 
 
Cornell University 
 Library 
 
 The original of tiiis book is in 
 tine Cornell University Library. 
 
 There are no known copyright restrictions in 
 the United States on the use of the text. 
 
 http://www.archive.org/details/cu31924018854111 
 
PREFACE TO FIRST EDITION. 
 
 In 1895 the Conference of Commissioners on Uniformity 
 of Laws, which met that year in Detroit, instructed the Com- 
 mittee on Commercial Law to have prepared a codification of 
 the law relating to bills and notes. The matter was referred 
 to a sub-committee consisting of Lyman D. Brewster, of 
 Connecticut, Henry C. Willcox, of New York, and Frank 
 Bergen, of New Jersey ; and I was employed by the sub-com- 
 mittee to draw the proposed law. When completed, the 
 draft, with my notes, was submitted to the sub-committee, 
 who printed it and sent copies to each member of the confer- 
 ence, and also to many prominent lawyers and law pro- 
 fessors, and to several English judges and lawyers, with an 
 invitation for suggestions and criticisms. The draft was 
 submitted to the conference which met at Saratoga in Au- 
 gust, 1896: and the commissioners who were in attendance, 
 being twenty-seven in all, and representing fourteen differ- 
 ent States, went over it section by section, and made some 
 amendments therein, most of which were such changes in the 
 existing law as I had not felt at liberty to incorporate into 
 the original draft. The draft as thus amended was adopted 
 by the conference; and in such form it has been submitted 
 to the legislatures of many of the States. It has been passed 
 and has become a law in New York, Connecticut, Colorado, 
 and Florida. I am informed that the Commissioners on 
 Uniformity of Laws will make special effort to have it 
 adopted in many other States at the next session of their 
 legislatures. 
 
 The text of the law as printed in this edition is that of the 
 New York statute. This is precisely the same as that of the 
 draft published by the Commissioners on Uniformity of 
 Laws, and the statute as passed in Connecticut, Colorado, 
 and Florida, except that the section numbers have been 
 
VI PREFACE. 
 
 changed, and section headings introduced, to conform the 
 statute to the plan adopted by the Commissioners of Statu- 
 tory Revision in their revision of the General Laws, and 
 three sections, viz., 330, 331, and 332, relating to special 
 matters heretofore embodied in other New York statutes, 
 have been added. 
 
 In the course of the passage of the bill through the New 
 York Legislature a number of errors were made in the en- 
 grossing and were not detected until too late to be corrected. 
 I have indicated these by asterisks and foot-notes. Probably 
 none of them are of such a character as to affect the meaning, 
 since they are so obviously mistakes. 
 
 In submitting this edition of the statute to the public, I 
 embrace this my first opportunity to publicly express my ap- 
 perciation of the unvarying courtesy and consideration 
 shown me by the Commissioners on Uniformity of Laws, 
 and especially by those composing the sub-committee having 
 the preparation of the bill in charge. 
 
 John J. Crawford. 
 
 30 Broad Street, New York, July 8, 1897. 
 
TABLE OF CASES. 
 
 PAGE. 
 
 Adair v. Lenox, 15 Ore, 489 48, 58, 86 
 
 Adams v. Wright, 14 Wis. 408 95, 129 
 
 yEtna National Bank v. Cliarter Oalt Life Ins. Co. 50 Conn 37, 167 
 
 V. Fourth National Bank, 46 N. Y. 82 85 
 
 Aiken v. Marine Bank, 16 Wis. 679 90 
 
 Albertson v. Laughlin, 173 Pa. St. 525 14 
 
 Albrecht v. Atrimpler. 7 Pa. St. 476 35 
 
 Alger "J. Scott, 54 N. Y. 14 nS 
 
 Allen V. Rightmere, 20 Johns. 365 88 
 
 V. Suydam, 17 Wend. 368 124 
 
 American Bank v. Jenness, 2 Mete. 288 52 
 
 Exchange National Bank v. New York Belting etc., 
 
 Co., 148 N. Y. 698 54, SS 
 
 National Bank v. Junk Bros., 94 Tenn. 634 94 
 
 Ames V. Meriam, 98 Mass. 204 141 
 
 Androscoggin Bank v Kimball, 10 Cush. 373 23 
 
 Angle V. Insurance Co., 02 U. S. 330 114 
 
 Annville National Bank i/. Kettering, 106 Pa. St. 531 100, loi 
 
 Armour v. McMichael, 36 N. J. Law, 92 33 
 
 Armstrong v. American Exchange National Bank, 133 U. S. 433. 116 
 
 V. Bank, 46 Ohio St. 412 20 
 
 V. National Bank of Boyertown, 90 Ky. 431 42 
 
 z;. Thurston, 11 Md. 148 82 
 
 Arnold v. Dresser, 8 Allen, 435 80 
 
 V. Rock River Valley Union R. R. Co., 5 Duer, 207 15 
 
 Artisans' Bank v. Backus, },(i N. Y. 106 90 
 
 Attorney-General v. Continental Life Insurance Co., 71 N. Y. 325. 144 
 
 Ayer v. Hutchins, 4 Mass. 370 Si, 59 
 
 Aymar v. Beers, 7 Cow. 705 7 
 
 Bachelor v. Priest, 12 Pick. 399 124 
 
 Backus V. Danforth, 10 Conn. 297 9 
 
 Bacon v. Burnham, 37 N. Y. 614 65 
 
 V. Hanna, 137 N. Y. 379 102 
 
 V. Page, I Conn. 405 18 
 
 Baer v. Leppert, 12 Hun, 516 102 
 
 Bailey J/. Southwestern R. R. Bank, 11 Fla. 266 103, 115 
 
viii TABLE OF CASES. 
 
 Bank v. Carter, 88 Tenn. 279 I43 
 
 V. Dibbrell, 91 Tenn. 301 9°, 99 
 
 V. Looney, 99 Tenn. 278 29, 60 
 
 V. Millard, 10 Wall. 152 I44 
 
 V. Patton, 109 111. 479 144 
 
 V. Price, 52 Iowa, 530 18 
 
 V. Schuler, 120 U. S. 511 I44 
 
 V. Simpson, go N. C. 469 no 
 
 of Alexandria v. Swann, 9 Peters, 33 90, 94 
 
 America v. Senior, 11 R. I. 376 48 
 
 British North America v. Ellis, 6 Sawyer, 98 47 
 
 Columbia v. Lawrence, i Peters, 578 91, 92, 96, 98 
 
 Cooperstown v. Woods, 28 N. Y. 545 91, 128 
 
 28 N. Y. 561 91 
 
 England I'. Vagliano (1891), App. Cas. 107 20 
 
 Genessee v. Patchin Bank, 13 N. Y. 309 37, 46 
 
 Jamaica v. Jefferson, 92 Tenn. 537 64, 70 
 
 Metropolis v. First National Bank of Jersey City, 19 
 
 Fed. Rep. 658 42 
 
 Michigan v. Ely, 17 Wend. 508 119 
 
 Montgomery County v. Walker, 9 S. & R. 229 36 
 
 Ohio Valley v. Lockwood, 13 W. Va. 392 114 
 
 Port Jefferson v. Darling, 91 Hun, 236 93, loi 
 
 Rome V. Village of Rome, 19 N. Y. 20 16 
 
 St. Albans v. Farmers' and Mechanics' Bank, 10 Vt. 141. 62 
 
 Syracuse v. Hollister, 17 N. Y. 46 78 
 
 the State v. Muskingum Bank, 29 N. Y. 619 46 
 
 United Slates v. Bank of Georgia, 10 Wheat. 333 62 
 
 V. Beirne, i Gratt. 234 70 
 
 V. Carneal, 2 Peters, 543 91, 98 
 
 Utica V. Ives, 17 Wend. 501 109 
 
 V. Smith, 18 Johns. 230 78 
 
 Barclay v. Bailey, 2 Camp. 527 75 
 
 V. Weaver, 19 Pa. St. 396 83 
 
 Baring v. Clark, 19 Pick. 220 106, 133 
 
 Barker v. Parker, 6 Pick. 80 83 
 
 Barney v. Worthington, 37 N. Y. 112 119 
 
 Barry v. Crowley, 4 Gill, (Md.) 194 129 
 
 Bartlett v. Isbell, 31 Conn. 297 69, 102 
 
 V. Robinson, 39 N. Y. 187 98 
 
 Bassonhorst v. Wilby, 45 Ohio St. 336 18, 66, 82 
 
 Batchelder v. White, 80 Va. 103 114 
 
 Bateman v. Joseph, 2 Camp. 461 102 
 
 Baumgardner v. Reeves, 35 Pa. St. 250 76 
 
 Baxendale v. Bennett, L. R. 3 Q. B. Div. 525 24 
 
 Baxter v. Little, 6 Met. 7 58 
 
TABLE OF CASES. ix 
 
 Bay V. Church, 15 Conn. 129 104 
 
 Bealls V. Peck, 12 Barb. 245 93 
 
 Beard v. Dedolph, 29 Wis. 136 49 
 
 Beauregard v. Knowlton, 156 Mass. 395 80 
 
 Beckwith v. Angell, 6 Conn. 317 42 
 
 Bedford Bank v. Acoarn, 125 Ind. 582 85 
 
 Belden v. Hann, 61 Iowa, 42 42 
 
 V. Lamb, 17 Conn. 451 81 
 
 Bell V. Alexander, 21 Gratt. i 142 
 
 V. Dagg, 60 N. Y. 528 66 
 
 V. Hagerstown Bank, 7 Gill, 216 91, 95, 96 
 
 Belmont v. Hoge, 35 N. Y. 65 54 
 
 Bemis v. McKenzie, 13 Fla. 553 18 
 
 Benedict v. Schmieg, 13 Wash. 476 80 
 
 Benjamm v. Rogers, 126 N. Y. 60 38 
 
 Benn v. Kutzschan, 24 Ore. 28 11, 69 
 
 Berg V. Abbott, 83 Pa. St. 177 79 
 
 Berkley v. Tinsley, 88 Va. looi, 1004 27 
 
 Berkshire Bank v. Jones, 6 Mass. 524 83 
 
 Berry v. 'Robinson, 9 Johns. 121 18, 48 
 
 Bicknall v. Waterman, S R. I. 43 67 
 
 Biegler v. Merchants' Loan and Trust Co., 62 111. App. 560 15 
 
 Bigge V. Piper, 86 Tenn. 589 16 
 
 Bigley's Admr. v. Cluff, 16 Gratt. 284 99 
 
 Bill V. Stewart, 156 Mass. 508 141 
 
 Birrell v. Dickerson, 64 Conn. 61 57 
 
 Bisbing v. Graham, 14 Pa. St. 4 44 
 
 Bishop V. Chase, 156 Mo. 158 40 
 
 V. Dexter, 2 Conn. 419 18 
 
 Black V. Rigmay, 131 Mass. 80 36 
 
 Blackman v. Lehman, 63 Ala. 547 , 19, 40, 70 
 
 V. Nearing, 43 Conn. 60 _. 78 
 
 Blaine v. Bourne, 11 R. I. 119 42 
 
 BL-iir V. Wilson, 28 Grat. 170 141 
 
 Blakeslee v. Hewett, 16 Wis. 341 75 
 
 Blenderman v. Price, 50 N. J. Law 296 104 
 
 Block V. Bell, i M. & R. 149 26 
 
 Board of Education v. Fonda, 77 N. Y. 350 109 
 
 Boehm v. Sterling, 7 T. R. 423, 430 51 
 
 Boetcher v. Colorado National Bank. 15 Col. 16 144 
 
 Bogarth v. Breedlove, 39 Tex. 561 114 
 
 Bonaud v. Genesi, 42 Ga. 639 33 
 
 Bond V. Farnham, S Mass. 170 83 
 
 V. Storrs, 13 Conn. 416 73 
 
 Born V. First National Bank, 123 Ind. 78 143 
 
 Boston Bank v. Hodges, 9 Pick. 420 79 
 
X TABLE OF CASES. 
 
 Bowen v. Newell, 8 N. Y. lOO ; 13 N. Y. 390 141 
 
 Boyd V. Bank of Toledo, 32 Ohio St. 526 82 
 
 V. McCann, 10 Md. n8 23, 58 
 
 V. Orton, 16 Wis. 49s 93 
 
 Boyd's Admr., v. City Savings Bank, 15 Gratt. 501 91, 92, 93 
 
 Brackett v. Mountford, 11 Me. 115 114 
 
 Bradshaw v. Van Valkenberg, 97 Tenn. 316 56 
 
 Brailsford v. Williams, 15 Md. 151 88 
 
 Brainerd v. N. Y. H. R. R. Co., 25 N. Y. 496 16 
 
 Bramhall v. Atlantic National Bank, 36 N. J. Law, 243 57 
 
 Brandt v. Mickle, 26 Md. 436 83 
 
 Bray v. Hadwen, 5 Maule & Sel. 68 97 
 
 Breckhill v. Randall, 102 Ind. 528 145 
 
 Breed v. Hillhouse, 7 Conn. 523 88 
 
 Breneman v. Furniss, 90 Pa. St, 186 35, 70 
 
 Brewster v. Arnold, i Wis. 264 90, 91, loi 
 
 V. McCardle, 8 Wend. 78 21 
 
 V. Schrader, 26 I\fisc. (N. Y.) 480 32 
 
 Bridgeport City Bank v. The Empire Stone Dressing Co. 30 Barb. 
 
 421 ' 37 
 
 Bridgeport City Bank v. Welsh, 29 Conn. 475 ^i 
 
 Briggs V. Partridge, 64 N. Y. 363 27 
 
 Brill V. Tuttle, 81 N. Y. 454 115, 116 
 
 Bristol V. Warner, 19 Conn. 74 14, 16, 140 
 
 Brockway v. Allen, 17 Wend, .to 122 
 
 Brooks V. Sullivan (N. C), 39 S. E. Rep. 822 33 
 
 Brown v. Ambler, 66 Md. 391 120 
 
 V. Bank of Abington, 85 Va. 95 91 
 
 V. Butchers' and Drovers' Bank, 6 Hill, 443 21, 28 
 
 V. Curtiss, 2 B. Y. 225 88 
 
 V. Davis, 3 T. R. So 51 
 
 V. Hull. 33 Gratt. 23 18. 47, 48 
 
 V. Moffey, 15 East, 222 83, 100 
 
 V. Philadelphia Bank, 6 S. & R. 484 129 
 
 Brownell v. Winnie, 29 N. Y. 400 114 
 
 Bryant v. Eastman, 7 Cush. in 46 
 
 7'. La Banque du Peuple (1893), App. Cas. 170 30 
 
 V. Merchants' Bank, 8 Bush. 43 100 
 
 V. Taylor, 19 Minn. 396 lOl 
 
 Buchanan v. Wren, 30 S. W. Rep. 1077 13 
 
 Buck V. Freehold Bank, 3y N. J. Law, 307 83 
 
 Buckley v. Second National Bank of Jersey City, 35 N. J. Law, 
 
 400 30 
 
 Buckner v. Finley, 2 Peters, 586 116 
 
 Bull V. Bank of Kasson, 123 U. S. 105 141 
 
 Burgess z\ Vreeland, 4 Zab. 71 96 
 
TABLE OF CASES. xi 
 
 Burroughs v. Moss, lo Barn. & Cress. 558 58 
 
 Burson v. Huntington, 21 Mich. 416 •. 25 
 
 Bush V. Gilmore, 45 App. Div. (N. Y.) 89 72 
 
 Cabot Bank v. Morton, 4 Gray, 156 71 
 
 V. Warner, 92 Mass. 522 88 
 
 Cady V. Bradshaw, 116 N. Y. 188 82 
 
 Callahan v. Kentucky Bank, 82 Ky. 231 94 
 
 Campbell v. French, 6 T. R. 200 104 
 
 Cana.ioharie National Bank v. Diefendorf, 123 N. Y. 191 54, 59 
 
 Canal Bank v. Bank of Albany, i Hill, 287 66 
 
 Carnwright v. Gray, 127 N. Y. 92 14, 19, 140 
 
 Carpenter v. Nat. Bank of the Republic, 106 Pa. St. 170 36 
 
 Carr v. Seperr, 27 Pa. St. 413 9 
 
 Carroll v. Swift, 128 N. Y. 19 142 
 
 Carter v. Burley, 9 N. H. 558, 566 129 
 
 V. Wolf, I Heisk, 674 29 
 
 Cary v. White, 52 N. Y. 138 33, 109 
 
 Casco National Bank v. Clark, 139 N. Y. 307 29 
 
 Cayuga County Bank v. Bennett, 5 Hill, 236 93 
 
 V. Hunt, 2 Hill, 635.... 79, 95, 125 
 
 V. Worden, i N. Y. 413 90 
 
 V. Worden, 6 N. Y. ig 90, 91 
 
 Cecil Bank v. Farmers' Bank, 22 Md. 148 42 
 
 Central Bank v. The Empire Stone Dressing Co., 26 Bart. 23 37 
 
 National Bank v. Dreydoppel, 134 Pa. St. 499 65 
 
 R. R. Co. V. The First National Bank of Lynchburg, Tz 
 
 Ga. 384 42 
 
 Champion v. Gordon, 70 Pa. St. 474 141 
 
 Chandler v. Drew, 6 N. H. 469 58 
 
 Chanoine v. Fowler, 3 Wend. 173 88 
 
 Chapman v. Keene, 3 Adol. & Ellis, 193 88 
 
 V. White, 6 N. Y. 412 141 
 
 Charles v. Dennis, 42 Wis. 56 69 
 
 Chase National Bank v. Faurot, 149 N. Y. 532 16 
 
 Cheever v. Pittsburgh, Shenango & Lake Erie R. R. Co., 150 
 
 N. Y. 59 54 
 
 Chicago, etc., R. R. Co. v. West, Z7 Ind- 211 103 
 
 Chicopee Bank v. Chapin, 8 Mete. 40 57 
 
 Chipman v. Tucker, 38 Wis. 290 25 
 
 Chisholm V. First National Bank of New York, 39 S. W. Rep. 340 20 
 
 Chouteau v. Webster, 6 Mete, i 99 
 
 Christian v. Keene, 80 Va. 369 62 
 
 Chrysler v. Griswold, 43 N. Y. 209 17 
 
 Church V. Clark, 21 Pick. 309 78 
 
 V. Howard, 17 Hun, 5 114 
 
XU TABLE OF CASES. 
 
 Cincinnati H. & D. R. R. Co. v. Metropolitan National Bank, 54 
 
 Ohio St. 60 144 
 
 Cincinnati Oyster & Fish Co. v. National Lafayette Bank, 51 Ohio 
 
 St. 106 143 
 
 Citizens' Bank v. Lay, 80 Va. 436 78, m 
 
 National Bank v. Richmond, 121 Mass. no 113 
 
 V. Williams, 174 Pa. St. 66 112 
 
 City Bank of Sherman v. Weiss, 68 Tex. 332 42 
 
 Clapp V. Rice, 13 Gray, 403 70 
 
 Clark V. Sigourney, 17 Conn. 520 40 
 
 V. Seabright, 135 Pa. St. 173 77 
 
 Cline V. Miller, 8 Md. 274 36, 122 
 
 Clutton V. Attenborough (1895), 2 Q. B. 707 20 
 
 Coddington v. Bay, 20 Johns. 637 32, 33 
 
 7'. Davis, I N. Y. 186 loi 
 
 Cogswell V. Hayden, 5 Ore. 22 65 
 
 Cole V. Cushing, 8 Pick. 48 108 
 
 Coleman v. Carpenter, 9 Pa. St. 178 94 
 
 Colt V. Noble, s Mass. 167 89, 97 
 
 Comer v. Dufour, 95 Ga. 378 142 
 
 Commercial Bank of Kentucky v. Varnum, 49 N. Y. 269. . .116, 128, 130 
 
 National Bank v. Armstrong, 148 U. S. 50 42 
 
 V. Hamilton National Bank, 42 Fed. 
 
 Rep. 880 42 
 
 V. Henninger, 105 Pa. St. 496 85 
 
 V. Hughes, 17 Wend. 94 85 
 
 Commonwealth v. Am. Life. Ins. Co., 167 Pa. St. 586 115 
 
 Comstock V. Hier, 73 N. Y. 269 33 
 
 Conant v. Johnston, 165 Mass. 450.. 59 
 
 Condon v. Pearce, 43 Md. 83 66 
 
 Connors v. Taylor, 13 Wis. 224 64 
 
 Conover v. Stillwell, 34 N. J. Law, 54 t,2 
 
 Continental Life Insurance Co. v. Baxter, 50 Conn. 567 loi 
 
 National Bank v. Bell, 125 N. Y. 38 34 
 
 V. Townsend, 87 N. Y. 8 51 
 
 V. Tradesmen's National Bank, 36 
 
 App. Div. 112 62 
 
 Cook V. Foraker, 193 Pa. St. 461 96 
 
 V. Litchfield, 9 N. Y. 279 91 
 
 V. Warren, 88 N. Y. 37 loi 
 
 Cooke V. State National Bank, 52 N. Y. 96 143 
 
 Coolidge V. Brigham, 5 Mete. 68 66 
 
 V. Ruggles, 15 Mass. 387 14 
 
 Corbett v. Fetzer, 47 Neb. 269 44 
 
 Corlies v. Hoose, 1 1 Gray, 125 35 
 
 Corn Exchange Bank v. American Dock & Trust Co., 149 N. Y. 
 
 174 9 
 
TABLE OF CASES. xiii 
 
 Coruth V. Walker, 8 Wis. 252 129 
 
 Costello V. Crowell, 127 Mass. 293 15 
 
 Coster V. Thomason, tq Ala. 717 93 
 
 Cottrell V. Watkins, 89 Va. 801 ^y^ 51 m 
 
 Couch V. Waring, 9 Conn. 261 108 
 
 Coulter V. Richmond, 59 N. Y. 478 65 
 
 County of Beaver v. Armstrong, 44 Pa. St. 63 9 
 
 Cover V. Myers, 7S Md. 406 58, 69 
 
 Covert V. Rhodes, 48 Ohio St. 66 144 
 
 Cowan V. Hallock, 9 Colo. 576 32 
 
 Cowing V. Altman, 71 N. Y. 441 21 
 
 Cowles V. Harts, 3 Conn. 522 44 
 
 V. Horton, 3 Conn. 523 91 
 
 V. Peck, "55 Conn. 251 83 
 
 Cowton V. Wickersham, S4 Pa. St. 302 62 
 
 Cox V. National Bank, 100 U. S. 713 73 
 
 Crawford v. Millspaugh, 13 Johns. 87 109 
 
 V. Roberts, 8 Ore. 324 107 
 
 V. West Side Bank, 100 N. Y. 50 114 
 
 Credit Company v. Howe Machine Co., 54 Conn. 357 54 
 
 Crim V. Starkweather, 88 N. Y. 339 74 
 
 Critchlow v. Parry, 2 Camp. 182 66 
 
 Croft's Appeal, 42 Conn. 154 54 
 
 Cromwell v. County of Sac, 96 U. S. 60 56 
 
 V. Hynson, 2 Camp. 596 76 
 
 Crosby v. Roub, 16 Wis. 616 40 
 
 Crout V. DeWolf, i R. I. 393 31 
 
 Crowley v. Barry, 4 Gill. 194 79 
 
 Cruger v. Armstrong, 3 Johns. 5 141 
 
 Culbertson v. Nelson, 93 Iowa. 187 10 
 
 Culver V. Reno Real Estate Company, 91 Pa. St. 367 37 
 
 Cumberland Bank v. Hann, 3 Harr. 222 49, 58 
 
 Cummings v. Kohn, T2 Mo. App. 585 43 
 
 Cunningham v. Scott, 90 Hun, 410 54 
 
 Curran v. Miller, 68 Wis. 16 140 
 
 Curtis V. Hazen, 56 Conn. 146 9 
 
 Cuyler v. Stevens, 4 Wend. 566 91 
 
 Dalrymple v. Hillenbrand, 62 N. Y. s 67 
 
 Dann v. Norris, 24 Conn. 337 39 
 
 Darbishire v. Parker, 6 East. 8 95 
 
 Dart V. Sherwood, 7 Wis. 533 27 
 
 Darwin v. Rippey, 63 N. C. 318 114 
 
 Daskman v. Ullman, 74 Wis. 474 67 
 
 Davis V. Garr, 6 N. Y. 124 19 
 
 V. Miller, 14 Gratt. i 51. 58. m 
 
 V. Old Colony Railroad Company, 131 Mass. 258 37 
 
Xiv TABLE 01? CASES. 
 
 Davis V. Wait, 12 Oregon, 425 36 
 
 Sewing Machine Co. v. Best, 105 N. Y. 59 24 
 
 Day V. Ridgway, 17 Pa. St. 303 69 
 
 Debedian v. Gala, 64 Md. 262 2[ 
 
 Deering !». Creighton, 19 Ore. 118 65 
 
 Delano v. Bartlett, 6 Gushing, 364 32 
 
 De la Torre v. Barclay, i Stark. 308 104 
 
 Delaware County Trust Co. v. Title Ins. Co., 199 Pa. St. 17 no 
 
 Denninger v. ^ililler, 7 App. Div. 409 93 
 
 Denniston v. Stewart, 17 How. (U. S.) 606 128 
 
 Deposit Bank of Georgetown v. Fayette National Bank, 90 Ky. 10 62 
 
 De Witt V. Walton, 9 N. Y. 574 28 
 
 Deyo V. Thompson, 53 App. Div. (N. Y.) 12 140 
 
 Dickens v. Beal, 10 Pet. 572 80 
 
 V. Hall, 87 Pa. St. 379 99 
 
 Dietrich v. Boylie, 23 La. Ann. 767 11 
 
 Dillenbeck v. Bygert, 97 N. Y. 303 in 
 
 Dingman v. Amsink, yj Pa. St. 114 35 
 
 Dinsmore v. Duncan, 57 N. Y. 573 16 
 
 Dodd V. Denny, 6 Oregon, 156 18 
 
 V. Jette, 10 Oregon, 31 141 
 
 Dodson V. Taylor, 56 N. J. Law, 11 91, 93 
 
 Dolph V. Rice, 18 Wis. 379 141 
 
 Donald v. Magruder, 3 Peters, 470 70 
 
 Donegan v. Wood, 49 Ala. 251 128 
 
 Dorsey v. Wolff, 142 111. 589 11 
 
 Doty V. Caldwell, 38 S. W. Rep. 1025 144 
 
 Doubleday v. Kress, 50 N. Y. 410 75 
 
 Dounes v. Church, 13 Peters, 205 138 
 
 Draper v. Clemens, 7 Mo. 52 78 
 
 Dresser v. Missouri, etc., R. R. Construction Co., 03 U. S. 95 52, 53 
 
 Drew V. Towle, 7 Frost, 412 36 
 
 Drexler v. i\IcGlynn, 99 Cal. 143 88 
 
 Drum V. Drum, 133 Mass. 566 113 
 
 Ducket V. Von Lillienthal, 11 Wis. 56 129 
 
 Duffield V. Johnston, 95 N. Y. 369 14 
 
 Dull V. Bricker, 76 Pa. St. 255 ng 
 
 Durkin v. Cranston, 7 Johns. 442 137 
 
 Dykman v. Northbridge, i App. Div. 26 78, 130 
 
 Easterly v. Barber, 66 N. Y. 433 70 
 
 Eaton V. Libbey, 165 Mass. 218 32 
 
 V. McMahon, 42 Wis. 484 69, 81 
 
 Eckert v. Cameron, 7 Wright, 120 106 
 
 Edelen v. White, 6 Bush. 408 70 
 
 Edgerton v. Edgerton, 8 Conn. 6 16 
 
TABLE OF CASES. XV 
 
 Edis V. Bury, 6 Barn. & Cress. 433 27 
 
 Egbert v. Hanson, 34 Misc. 597 70 
 
 Eilbert v. Finkbeimer, 68 Pa. St. 243 65 
 
 Elford V. Teed, i Maule & Sel. 28 64 
 
 Ellicott V. Martin, 6 Md. 509 So, 59 
 
 Elliot V. Chestnut, 30 Md. 562 23 
 
 Ellis V. Ins. Co., 4 Ohio St. 628 62 
 
 Em V. Carroll, i Yerger, 144 29 
 
 Epler V. Funk, 8 Pa. St. 468 44 
 
 Emmerson v. Townsend, y^ Md. 224 55 
 
 Ernst V. Steckman, 74 Pa. St. 13 14 
 
 Espy V. Bank of Cincinnati, 18 Wall. 620 141 
 
 Etting V. Schuylkill Bank, 2 Pa. St. 355 91, 97 
 
 Ex parte Barclay, 7 Ves. 597 88 
 
 Moline, 19 Ves. 216 94 
 
 Falkill National Bank v. Sleight, i App. Div. 189 109 
 
 Fall River Union Bank v. Willard, 5 Metclf. 216 78 
 
 Fancourt v. Thorne, 9 Q. B. 312 15 
 
 Farmers' Bank v. Ewing, 78 Ky. 264 101 
 
 V. Sprigg, II Md. 390 108 
 
 etc.. Bank v. Troy City Bank, I Dough. 457 46 
 
 and Mechanics' Bank v. Butchers' and Drovers' Bank, 
 
 16 N. Y. 125 37, 76, 143 
 
 and Mechanics' Bank v. Empire Stone Dressing Co., 
 
 5 Bosw. 27s 37 
 
 Farn.sworth v. Allen, 4 Gray, 453 75, 76 
 
 Fassin v. Hubbard, 55 N. Y. 465 44, 92 
 
 Fenn v. Harrison, 3 T. R. 757 67 
 
 Field V. Nickerson, 13 Mass. 131 52 
 
 Fifth Ward Savings Bank v. First National Bank, 48 N. J. Law, 
 
 513 54 
 
 Filon V. The Miller Brewing Co., 38 N. Y., St. Rep. 602 27 
 
 First National Bank v. Alton, 60 Conn. 402 14 
 
 V. Buckhannon Bank, 80 Ind. 475 142 
 
 V. Bynum, 84 N. C. 24 11 
 
 V. Clark, 61 Md. 400 119 
 
 V. Falkenham, 94 Cal. 141 loi 
 
 w. Gay, 63 Mo. 38 11 
 
 V. Hall, 44 N. Y. 395 46 
 
 V. Harris, 7 Wash. 139 106, in 
 
 V. Larsen, 60 Wis. 206 11 
 
 V. Leach, 52 N. Y. 350 143 
 
 V. Maxfield, 83 Me. 576 in 
 
 V. Northwestern National Bank, 152 III, 296 143 
 
 V. Peltz, 176 Pa. St. S13 109 
 
xvi TABLE OF CASES. 
 
 First National Bank v. Ricker, 71 III 439 62 
 
 V. Schreiner, no Pa. St. 188 loi 
 
 V. Wallis, 150 N. Y. 455 29 
 
 V. Whitman, 94 U. S. 343 144 
 
 V. Wood, 71 N. Y. 405 83 
 
 of Champlain v. Wood, 128 N. Y. 35 58 
 
 Danvers v. First National Bank of 
 
 Salem, 151 jVlass. 280 62 
 
 Portland v. Linn County National Bank, 
 
 30 Oregon, 296 142 
 
 Union Mills v. Clark, 134 N. Y. 368 144 
 
 Wymore v. Miller, 43 Neb. 791 142 
 
 Firth V. Thrush, 8 Barn. & Cress, 387 92 
 
 Fisher v. Fisher, 98 Mass. 303 33, 35 
 
 Fitchburg Bank v. Greenwood, 2 Allen 434 44 
 
 Fitzgerald 7j. Booker, 96 Mo. 661 33 
 
 Flagg V. School District, 4 N. D. 30 10 
 
 Flint V. Phipps, 16 Oregon, 437 32 
 
 Florence Mills Co. v. Brown, 124 U. S. 385 144 
 
 Poland V. Boyd, 23 Pa. St. 476 93 
 
 Folger V. Chase, 18 Pick. 63 40, 46 
 
 Fonner v. Smith, 31 Neb. 107 144 
 
 Ford v. Mitchell, 15 Wis. 304 17 
 
 Foster v. McKinnon, L. R. 4 C. P. 704 56 
 
 Fourth National Bank v. Henschuh, 52 Mo. 207 79, 93 
 
 Street National Bank j. Yardley, 165 U. S. 634 144 
 
 Fox z'. Rural Home Co., 90 Hun, 365 38 
 
 Frampton v. Coulson, 1 Wils. 33 72 
 
 Frank v. Lillienfeld, 33 Gratt. 377 23, 54 
 
 Franklin v. Twogood, Iowa, 515 40 
 
 Bank v. Lynch, 52 Md. 270 119 
 
 Frazer v. D'Quillier, 2 Pa. St. 200 9 
 
 Freeman v. Boynton, 7 Mass. 483 78 
 
 Freeman's Bank v. National Tube Works, 151 Mass. 413 42 
 
 Freese v. Brownell, 35 N. J. Law, 285 47 
 
 French v. Bank of Columbia, 4 Cranch, 141 104 
 
 V. Jarvis, 29 Conn. 347 18, 48, no 
 
 V. Turner, 15 Ind. 59 40 
 
 Fridenberg v. Robinson, 14 Fla. 130 109 
 
 Friend f. Wilkinson, g Gratt. 31 '96 
 
 Fuller V. Green, 64 Wis. 159 114 
 
 Fulton V. MacCracken, 18 Md. 528 128 
 
 Fydell v. Clark, i Esp. 447 67 
 
 Garland v. Salem Bank, Mass. 408 100 
 
 Garnett v. Woodcock, i Starkie, 475 78 
 
TABLE OF CASES. XVU 
 
 Garvin v. Wiswell, 83 III. 218 40, 70 
 
 Gates V. Beecher, 60 N. Y. 518 76, 78, 80, 93 
 
 Gawtry v. Doane, 48 Barb. 148 100 
 
 Gaylord v. Van Soan, 15 Wend. 308 18 
 
 Gennis v. Weighley, 114 Pa. St. 194 108 
 
 Georgia National Bank v. Henderson, 46 Ga. 496 141 
 
 German-American Bank v. Niagara Cycle Co., 13 App. Div. 450. .83, 109 
 
 National Bank v. Foreman, 138 Pa. St. 474 85 
 
 Gerraania National Bank v. Tooke, loi N. Y. 442 119 
 
 Gettysburg National Bank v. Chisholm, 169 Pa. St. 564.... 112, 113, 114 
 
 Giffert v. West, n Wis. 115 66, 67 
 
 Gifford V. Hardell, 88 Wis. 538 142 
 
 Gill V. Palmer, 29 Conn. 57 90 
 
 Gilmore v. Wilb'U", 12 Pick. 124 7 
 
 Giovanovich v. Citizens' Bank, 26 La. Ann. 15 33 
 
 Glaser v. Rounds, i6 R. I. 235 100 
 
 Gleason v. Hamilton, 138 N. Y. 353 113 
 
 Glidden v. Chamberlin, 167 Mass. 486 47, 67 
 
 Gloucester Bank v. Worcester, 10 Pick. 528 109 
 
 Good V. IMartin, 95 U. S. 93 64 
 
 Goodner v. Maynard, 7 Allen, 456 iii 
 
 Goodnow V. Warren, 122 Mass. 82 93 
 
 Goshen National Bank v. Bingham, 118 N. Y. 349 49 
 
 Gosling V. Griffin, 85 Tenn. 737 86 
 
 Goss V. Nelson, I Burr. 226 14 
 
 Gould V. Eager, 17 Mass. 615 m 
 
 Goupy V. Harden, 7 Taunt. 397 124 
 
 Gowan v. Jackson, 20 Johns. 176 124 
 
 Gowdey v. Robbins, 3 App. Div. 353 112 
 
 Grand Bank v. Blanchard, 23 Pick. 305 79 
 
 Grange v. Reigh, 93 Wis. 552-1130 ^42 
 
 Grant v. Fleming, 46 Pa. St. 140 44 
 
 V. Wood, 12 Gray, 220 I4 
 
 Gray's Admr. v. Bank of Kentucky, 29 Pa. St. 365 53. 59 
 
 Greenwich Bank v. De Groot, 7 Hun. 210 102 
 
 Gregg V. Beane, 69 Vt. 22, 248 M- 
 
 Griffiths V. Kellogg, 39 Wis. 290 23 
 
 V. Shipley, 74 Md. 591 59 
 
 Grissom v. Commercial Bank, 87 Tenn. 350 85 
 
 Guarantee Co. v. Craig, i55 Pa- St. 343 109 
 
 Guild V. Goldsmith, 97 Fla. 212 74 
 
 Gunston v. Heat and Power Co., 181 Pa. St. 327 62 
 
 Hagerty v. Phillips, 83 Me, 336 70 
 
 Hagey v. Hill, 75 Pa- St. 108 "o 
 
 ,. Hague V. Davis, 8 Gratt. 4 ^o 
 
xviii TABLE 01' CASES. 
 
 Haines v. Dubois, 29 N. J. Law, 259 39 
 
 V. Merrill, 56 N. J. Law, 312 59 
 
 Hale V. Danforth, 46 Wis. 554 7o. 82 
 
 Halifax v. Lyle, 3 Welsby, H. & G. 446 G2 
 
 Hall V. Auburn Turnpike Co., 27 Cal. 256 37 
 
 V. Toby, no Pa. St. 318 18, 41 
 
 Halliday v. Hart, 30 N. Y. 474 109 
 
 V. McDougall, 20 Wend. 81 128, 129 
 
 Hallowell v. Curry, 41 Pa. St. 322 79 
 
 Haly V. Brown, 5 Pa. St. 178 97, 98, 192 
 
 Hanover National Bank v. American Dock & Trust Co., 148 N. Y. 
 
 612 9 
 
 Hansborough v. Gray, 3 Gratt. 340 72 
 
 Harger v. Wilson, 63 Barb. 237 57 
 
 Harker v. Anderson, 21 Wend. 373 141 
 
 Harmon v. Haggerty, 88 Tenn. 705 145 
 
 Harper v. Young, 112 Pa. St. 419 55 
 
 Harris v. Clark, 3 N. Y. 93 115, 141 
 
 II. The Bank of Jacksonville, 20 Fla. 501 113 
 
 Harrison v. Ruscoe, 15 L. H. Exch. no; 15 M. & W. 231 88 
 
 V. Nicollet National Bank, 41 jMinn. 488 141 
 
 Harrold v. Kays, 64 Mich. 439 33 
 
 Hart V. Stickney, 41 Wis. 630 51 
 
 Hartford Bank v. Stedman, 3 Conn. 494 102 
 
 Hartley v. Carboy, 150 Pa. St. 23 113 
 
 Haskell v. Boardman, 8 Allen, 38 100 
 
 V. Brown, 65 111. 29 40 
 
 V. Jones, 86 Pa. St. 173 145 
 
 Hastings v. Thompson, 54 Minn. 184 10 
 
 Hawley v. Jette, 10 Oregon, 31 82 
 
 Hayes v. Werner, 45 Conn. 252 74 
 
 Haynes v. Birks, 3 Bor & Pul. 599 89 
 
 Heard v. Dubuque Bank, 8 Neb. 10 11 
 
 Hegeman v. Moon, 131 N. Y. 462 14 
 
 Heise v. Bumpass, 40 Ark. 547 26 
 
 Heist V. Hart, yi Pa. St. 286 40 
 
 Henderson v. Thornton, 37 Miss. 448 63 
 
 Henry Christian Building and Loan Association v. Walton, 187 
 
 Pa. St. 201 31 
 
 Herdic z>. Roessler, 109 N Y 127 35. I45 
 
 Hereth v. Meyer, 33 Ind 5^1 13 
 
 Herker v. Anderson, 21 Wnd 372 141 
 
 Herrick v. Whitney, IS Johns. 240 66 
 
 7'. Woolverton, 41 N. Y. 581 74 
 
 Heuertematte v. Morris, loi N. Y. 63 34, 63 
 
 Hewins v. Cargill, 67 Me. 554 114 
 
TABLE OF CASES. XIX 
 
 Hibernia Bank v. Lacomb, 84 N. Y. 367 73 
 
 Higgins V. Ridgway, 153 N. Y. 130 40 
 
 Hill V. Farrell, 3 Greenleaf, 233 102 
 
 Hills V. Place, 48 N. Y. 520 72, yz 
 
 Hinckley v. Merchants' National Bank, 131 Mass. 147 60 
 
 Hinsdale v. Miles, S Conn. 331 132 
 
 Hobbs V. Straine, 149 Mass. 212 loi 
 
 Hodges V. Shuler, 22 N. Y. 114 15, go 
 
 Hoffman v. Planters' National Bank (Va.), 39 S. E. Rep. 134 114 
 
 Holbrook v. Burt, 22 Pick. 555 7 
 
 Holconib V. Wyckoff, 35 N. J. Law, 38 57 
 
 Holdsworth v. Hunter, 10 C. & B. 449 138 
 
 Holmes v. Roe, 62 Mich. 199 142 
 
 V. West, 17 Cal. 623 18 
 
 Holtz V. Boppe, 37 N. Y. 634 76 
 
 Home Insurance Company v. Green, 19 N. Y. 518 91 
 
 National Bank v. Newton, 8 Bradwell, 563 85 
 
 Homer v. Wallis, 11 Mass. 310 114 
 
 Hook V. Pratt, 78 N. Y. 371 43 
 
 Hopkinson v. Foster, L. R. 18 Eq. 74 141, 144 
 
 House V. Vinton Bank, 43 Ohio St. 346 94 
 
 Howard v. Boorman, 17 Wis. 459 38, 72 
 
 V. Ives, I Hill. 263 97 
 
 Howe V. Merrill, 15 Cush. 88 70 
 
 Howland v. Adrian, 29 N. J. Law, 41 96, 97, 102 
 
 V. Carson, 15 Pa. St. 453 120 
 
 Hubbard v. Gurney, 64 N. Y. 450 109 
 
 V. Matthews, 54 N. Y. 43 93 
 
 Huff V. Wagner, 63 Barb. 230 57 
 
 Huffuker v. National Bank, 12 Bush. 293 129 
 
 Hughes V. Large, 2 Pa. St. 103 58 
 
 Humphreys v. Sutcliffe, 192 Pa. St. 336 78 
 
 Hungerford v. O'Brien, 37 Minn. 306 88 
 
 Hunter v. Hook, 64 Barb. 469 100 
 
 z;. Van Bomhurst, i Md. 504 91 
 
 Hutchinson v. Boggs & Kirk, 28 Pa. St. 294 59 
 
 Hutchison v. Crutcher, 98 Tenn. 421 79 
 
 Industrial Bank of Chicago v. Bower, 165 111. 70 142 
 
 Trust Title and Savings Co. v. Weakley, 103 Ala. 458. 142 
 
 Ingalls V. Lee, 9 Barb. 547 47 
 
 Ingersoll v. Martin, 58 Md. 67 35 
 
 In re Bishops' Estate, 195 Pa. St. 85 109 
 
 Brown, 2 Story 502 141 
 
 Hammond, 6 De G. M. & G. 699 67 
 
 Swift, 106 Fed. Rep. 65 I04 
 
XX TABLE OF CASES. 
 
 Insurance Company v. Wilson, 29 W. Va. 543 7Z 
 
 Iron City National Bank v. Fort Pitt National Bank, 159 Pa. St. 
 
 46 62 
 
 Irving National Bank v. Alley, 79 N. Y. 536 140 
 
 Ivory V. Bank of the State, 36 :Mo. 475 I4i 
 
 Jackson v. Meyers, 43 Md. 466 I7 
 
 V. Richards, 2 Caines, 43 82 
 
 Jenkins v. Schnaub, T4 Wis. i .34 
 
 James v. Brown, 11 Ohio, 601 18 
 
 Jameson v. Swinton, 2 Taunt. 224 97 
 
 Jarnigan :'. Stratton, 95 Tenn. 619 93 
 
 Jarvis v. Manhattan Beach Co., 148 N. Y. 652 54 
 
 V. St. Croix Manufacturing Co., 23 Me. 287 96 
 
 V. Wilson, 46 Conn. 91 119 
 
 Jeffreys v. Rosenfeld (Mass.), 61 N. E. Rep. 49 112 
 
 Jenkins v. Schnaub, 14 Wis. i 34 
 
 V. White, 147 Pa. St. 303 100 
 
 Jenkinson v. Wilkinson, no N. C. 532 49 
 
 Jennison v. Stafford, i Cush. 168 35 
 
 Johnson v. Brown, 154 Mass. 105 97, 125 
 
 V. Clark, 39 N. Y. 216 119 
 
 V. Mitchell, 50 Tex. 212 45 
 
 V. Ramsay, 43 N. J. Law, 279 70 
 
 Jones V. Darch, 4 Price, 300 62 
 
 V. Home Furnishing Co., 9 App. Div. 103 61 
 
 V. Roberts, 191 Pa. St. 152 100 
 
 V. Rodetz, 27 INIinn. 240 11 
 
 Jordan v. Grover, 99 Cal. 194 59 
 
 V. Tate, 19 Ohio St. 586 14 
 
 Joseph V. Solomon, 19 Fla. 623 116, 128 
 
 Joy V. Diefendorf, 130 N. Y. 6 59 
 
 Joyce V. Realm Insurance Company, L. R. 7 Q. B. 580 26 
 
 Judah V. Harris, 19 Johns. 144 17 
 
 Kaschner v. Conklin, 40 Conn. 81 11 1 
 
 Keith V. Jones, 9 Johns. 120 17 
 
 Kelley v. Brown, S Gray, 108 100 
 
 V. \\'hitney, 45 Wis. no 51 
 
 Kelly V. Burroughs, 102 N. Y. 93 70, m 
 
 Kenworthy v. Sawyer, 125 ?ilass. 28 no 
 
 Keyes v. Feustomacher, 24 Cal. 329 18 
 
 Kilcresse v. White, 6 Fla. 45 58 
 
 Kilgore v. Bulkley, 14 Conn. 362 90 
 
 Kimball v. Bryan, 56 Iowa, 632 80 
 
 King V. Holmes, n Pa. St. 456 77 
 
TABLE OF CASES. xxi 
 
 Kinney v. Kruse, 28 Wis. 183 35, 58, 60 
 
 Kinsley v. Robinson, 21 Pick. 327 80 
 
 Kirschner v. Conklin, 40 Conn. 77 70 
 
 Kiskadden v. Allen, 7 Colo. 206 14 
 
 Klauber v. Biggerstoff, 47 Wis. 551 17 
 
 Kness v. Holbrook, (Ind.) 44 N. E. Rep. 363 145 
 
 Knisley v. Sampson, 100 111. 54 26 
 
 Knox ■;'. Eden Musee American Co., 148 N. Y. 454 54 
 
 Koehning v. Muemminghoff, 61 Mo. 403 18 
 
 Kohn V. Consolidated Butter and Egg Co., 30 Misc. (N. Y.) 725. . 65 
 
 Konig V. Bayard, i Pet. 250 136 
 
 Kunkel v. Spooner, 9 Md. 462 50 
 
 Ladd V. Franklin, 37 Conn. 64 54 
 
 Lake Shore National Bank v. Butler Colliery Co., 51 Hun, 63. ... 92 
 
 Lambert v. Pack, i Salk. 127 66 
 
 Land, etc., Co. v. Northwestern Nat. Bank, 196 Pa. St. 230 31 
 
 Lane v. Stacy, 8 Allen, 41 70 
 
 Laubach v. Pursell, 35 N. J. Law, 434 iii 
 
 Lawrence v. Miller, 16 N. Y. 231 88, 89, 102 
 
 Lazier v. Horan, 55 Iowa, 77 73 
 
 Leather Manufacturers' National Bank v. Morgan, 117 U. S. 96. . . 31 
 
 Leavitt v. Putnam, i Sandf. 199 18 
 
 3 N. Y. 194 43 
 
 Legg V. Vinal, 165 Mass. 555 78, 105, 129 
 
 Lehigh Valley Coal Co. v. West Depere Agr. Works, 63 Wis. 45. . 38 
 
 Leidy v. Tammany, 9 Watts, 353 74 
 
 Lenheim v. Wilmarding, 55 Pa. St. 73 36 
 
 Lenox v. Roberts, 2 Wheat, 373 94 
 
 Levins v. Briggs, 21 Oregon, 333 11 
 
 Lewis V. Brehme, 33 Md. 412 99 
 
 Lewisohn v. The Kent and Stanley Co., 87 Hun, 257 20 
 
 Libby v. Mekelborg, 28 Minn. 38 18 
 
 Life Insurance Company v. Pendleton, 112 U. S. 696 80, 103, ii5 
 
 Light V. Kingsbury, 50 Mo. 331 18 
 
 Lindeman's Exr. v. Guildin, 34 Pa. St. 54 93 
 
 Lindsay v. Prince, 33 Tex. 282 41 
 
 Lindsey v. McClelland, 18 Wis. 481 17. 75 
 
 Lines v. Smith, 4 Fla. 47 32 
 
 Linn v. Horton, 17 Wis. 150 89, 97 
 
 Littauer v. Goldman, 72 N. Y. 506 66, 67 
 
 Lloyd V. Oliver, 18 Q. B. 471 27 
 
 V. Osborne, 65 N. W. Rep. 859 142 
 
 V. Sigourney, 5 Bing. 252 ; 3 M. P. 229 42 
 
 Lockwood V. Crawford, 18 Conn. 361 73, 78, 100, 109 
 
 Logan V. Ogden, loi Tenn. 392 64 
 
XXU TABLE OF CASES. 
 
 Lomax v. Picot, 2 Rand. 260 44 
 
 Long V. Rhawn, 75 Pa. St. 128 58 
 
 Lookout Bank v. Aull, 93 Tenn. 645 46, 55 
 
 Lord V. Ocean Bank, 20 Pa. St. 384 37, 61 
 
 Losee v. Bissell, 76 Pa. St. 459, 462 51 
 
 V. Durkin, 7 J. R. 70 52 
 
 Louisville R. R. Co. v. Caldwell, 98 Ind. 251 32 
 
 Loux V. Fox, 171 Pa. St. 68 142 
 
 Low V. Howard, 11 Cush. 268 83, 99, 100 
 
 Lowers i'. Thomas, 62 Wis. 480 56 
 
 Lowery v. Steele, 27 Ind. 168 loi 
 
 V. Steward, 25 N. Y. 239 13 
 
 Lyon V. Ewings, 17 Wis. 61 44 
 
 Lyson v. Phillips, 106 Pa. St. 57 31 
 
 MacDonald v. Whitfield, L. R. 8 App. Cas. 733 70 
 
 Mackay v. St. Mary's Church, 15 R. I. 121 16 
 
 MacLeod v. Luce, 2 Stra. 762 ; 2 Ld. Raym. 1481 12 
 
 Madison Square Bank v. Pierce, 137 N. Y. 444 45, 107, 140 
 
 Magee v. Lovell, L. R. 9 C. P. 107 26 
 
 Maginn v. Dollar Savings Bank, 131 Pa. St, 362 144 
 
 Magoon v. Reber, 76 Wis. 392 53 
 
 Maitland v. Citizens' National Bank, 40 Md. 540 33 
 
 Mandeville z'. Welsh, 5 Wheat. 286 115 
 
 Manufacturers', etc.. Bank v. Love, 13 App. Div. 561 27 
 
 Marine National Bank v. National City Bank, 59 N. Y. 67 62 
 
 Market and Fulton National Bank, v. Sargent, 85 Me. 349 59 
 
 Markey v. Corey, 108 l\Iich. 184 10, 44 
 
 Marks v. Boone, 24 Fla. 177 88, 95 
 
 Marsh Z'. Marshall, 53 Pa. St. 396 51 
 
 Marshall v. Burnby, 25 Fla. 619 122 
 
 Martin v. Bank, 94 Tenn. 176 34 
 
 V. Ingersoll, 8 Pick, i 103 
 
 V. Stone, 29 Atl. Rep. 845 14 
 
 Maryland Fertilizing Co. v. Newman, 60 Md. 584 11 
 
 Mason v. Frick, 105 Pa. St. 162 17 
 
 V. Noonan. 7 Wis. 609 47 
 
 Maspero i'. Pedesclaux, 22 La. Ann. 227 93 
 
 Massachusetts Bank v. Oliver, 10 Cush. 557 93 
 
 Matteson v. Moulton, 79 N. Y. 627 120 
 
 Mattison v. Marks, 31 JNIich. 421 13 
 
 Maule V. Crawford, 14 Hun, 193 19 
 
 Maxwell v. Agnew, 21 Fla. 154 140 
 
 Mayer v. Jadis, i M. & Rob. 247 48 
 
 McBride v. Farmers' Bank, 26 N. Y. 450 33 
 
 McCarty v. Roots, 21 How. (U. S.) 432 70 
 
TABLE OF CASES. XXlll 
 
 McCaughey v. Smith, 27 N. Y. 39 114 
 
 McConeghy v. Kirk, 68 Pa. St. 200 66 
 
 McDaniel v. Pressler, 3 Wash. 636 43 
 
 McDonald v. Magruder, 3 Peters, 470 70 
 
 McFarland v. Sikes, 54 Conn. 250 40 
 
 McKim V. King, 58 Md. 502 51, 52 
 
 McLeod V. Hunter, 29 Misc. 558 18 
 
 McSherry v. Brooks, 46 Md. 103 48 
 
 McWherter v. Jackson, 10 Humph. 208 29 
 
 Mead v. Engs, 5 Cow. 303 97 
 
 Mechanics' Bank v. Griswold, 7 Wend. 165 83, 100 
 
 V. Merchants' Bank, 6 Mete. 13 79 
 
 V. Stratton, 2 Keyes, 365 21 
 
 and Traders' Bank v. Seitz, 150 Pa. St. 632 85 
 
 Melton V. Brown, 25 Fla. 461 64 
 
 Mercer County v. Hackett, i Wall. 83 16 
 
 V. Lancaster, S Pa. St. 160 98 
 
 Merchants' Bank v. Birch, 17 Johns. 24 93 
 
 V. Griswold, 72 N. Y. 472 119 
 
 V. State Bank, 10 Wall. 604 141, 143 
 
 Nat. Bank v. Haverhill Iron Works, 159 Mass. 158. .. 59 
 Meriden National Bank v. First National Bank, 33 N. E. Rep. 247 
 
 (Ind.) 143 
 
 Meriden National Bank v. Gallaudet, 120 N. Y. 298 67, 71, 143 
 
 Merritt v. Todd, 23 N. Y. 28 74 
 
 Merz V. Kaiser, 20 La. Ann. 379 48 
 
 Messniore v. Morrison, 172 Pa. St. 300 18 
 
 Metropolitan Bank v. Jones, 137 111. 634 143 
 
 Meyer v. Beardsley, 29 N. J. Law, 236 118 
 
 V. Richards, 163 U. S. 385 67 
 
 Meyers v. Standart, 11 Ohio St. 29 121 
 
 M. Groh's Son's Co. v. Schneider, 34 Misc. (N. Y.) 195 60 
 
 Middleton v. Griffith, 57 N. J. Law, 442 40 
 
 Miller v. Gilleland, 19 Pa. St. 119 114 
 
 V. Hannibal & St. Jo. R. R. Co. 90 N. Y. 430 26 
 
 V. Kreiter, 76 Pa, St. 78 106 
 
 V. Reynolds, 92 Hun, 400 28 
 
 V. Weeks, 22 Pa. St. 89 140 
 
 Mills V. Bank of U. S. 11 Wheat. 431 90, 91 
 
 Mingus V. Condit, 23 N. J. Eq. 313 zi 
 
 Minir v. Crawford. L. R. 2 Scotch AppealSj 456 no 
 
 Minot V. Russ, 156 Mass. 458 143 
 
 Minturn v. Fisher, 4 Cal. 36 141 
 
 Mitchell V. Culver, 7 Cow. 33 22 
 
 V. Fuller, 15 Pa. St. 268 45 
 
 Moggridge v. Jones, 14 East. 485 36 
 
Xxiv TABLE OT- CASES. 
 
 Mohlman Co. v. McKane, 60 App. Div. 546 102 
 
 Monson v. Drakely, 40 Conn. 559 27 
 
 Montgomery v. Crossthwait, 90 Ala. 553 11 
 
 County Bank v. Marsh, 7 N. Y. 481 9S 
 
 Monument Nat. Nat. Bank v. Globe Works, lOl Mass. 57 37 
 
 Moore v. Alexander, 6^ App. Div. 100 83. 100 
 
 V. Baird, 30 Pa. 136 57 
 
 V. Hardcastle, 11 Md. 486 gS 
 
 Moorhead z: Gilmore, yy Pa. St. 118 54 
 
 Moreland's Assignee v. Citizens' Savings Bank, 30 S. W. Rep. 19. 130 
 
 ^Morford f. The Farmers' Bank of Saratoga County, 26 Barb. 568. 37 
 
 Morgan v. Edwards, 53 Wis. 599 11 
 
 Morris z'. Cude, 57 Te.x. 337 48 
 
 Canal, etc., Co z'. Fisher, 9 N. J. Eq. 699 17 
 
 Morrison z'. Bailey, 5 Ohio St. 13 141 
 
 Lumber Co. v. Lookout yit. Hotel Co., 92 Tenn. 6 70 
 
 Morse v. Huntington, 40 Vt. 488 no 
 
 Morton I'. Naylor, i Hill, 583 , 13 
 
 z'. N. A. & Selma Ry. Co. 79 Ala. 590 54 
 
 !\Iott I'. Havana National Bank, 22 Him, 354 12 
 
 Moyer & Brother's Appeal, 87 Pa. 129 82 
 
 Mudd V. Harper, i Md. no 18, 73 
 
 Munger v. Shannon, 61 N. Y. 251 12, 13, 115 
 
 Munn V. Burch, 25 111. 35 l_^_^ 
 
 Murray v. Judah. 6 Cow. 484 141 
 
 V. Lardner, 2 Wall, no 54 
 
 ISIusson z\ Lake, 4 How. 262 -7 
 
 Muth V. Dolfield, 43 Md. 466 17 
 
 IMyrick v. Merritt, 22 Fla. 335 122 
 
 Nailor z: Bowie, 3 Md. 25 1 77 
 
 Nash z'. De Freville, (1900) 2 A. B. 72 107 
 
 National Bank v. Cade, 73 Mich. 449 08 
 
 z'. Shaw, 79 Me. 376 p7 
 
 I'. Sutton Manufacturing Co., 6 U. S. App. 312... n 
 of America z: National Bank of Illinois, 164 111. 
 
 503 144 
 
 of Commerce v. Atkinson, 55 Fed. Rep. 465. 27 
 
 U. S. App. 88 ],_ 37 
 
 of North America j'. Bangs, 106 Mass. 441 62 
 
 Republic z: Young, 41 N. J. Eq. 531 54 
 
 of Washington z'. Texas, 20 Wall. 72 48 
 
 Butchers' and Drovers' Bank z: Hubbell, 117 N. Y. 384. . 42 
 Exchange Bank z: Cumberland Lumber Co., 100 Tenn 
 
 479 64 
 
 Exchange Bank v. Hartford P. & E. R. Co., 8 R. I. 375 9 17 
 
TABLE OF CASES. XXV 
 
 National Park Bank v. German- American M. W. & S. Co., n6 
 
 N. Y. 281 55 
 
 V. G. A. M. W. & S. A. Co., 116 N. Y. 281. . 37 
 
 V. Ninth National Bank, 46 N. Y. 77 62 
 
 V. Seaboard National Bank, 114 N. Y. 28.. 68 
 
 Revere Bank v. Morse, 163 Mass. 381 33, 53, 59 
 
 Savings Bank v. Cable (Conn.) 48 Atl. Rep. 428 13 
 
 Ulster County Bank v. Madden, 114 N. Y. 280 114 
 
 Union Bank v. Todd, 152 Pa. St. 312 34 
 
 Nelson v. First National Bank, 69 Fed. Rep. 798, 801, 16 C. C. A. 
 
 425, 29 U. S. App. SS4 91, 130 
 
 New V. Walker, 108 Ind. 365 145 
 
 Newcombe v. Fox, i App. Div. 389 25, 50 
 
 Newell V. Gregg, 51 Barb. 253 51 
 
 Newhall v. Clark, 3 Cush. 376 122 
 
 Newman v. King, 43 N. E. Rep. 683 (Ohio) 114 
 
 New York & N. H. R. R. Co. v. Schuyler, 34 N. Y. 30 119 
 
 Nevins v. Townsend, 6 Conn. 7 52 
 
 Niagara Bank v. Fairman Co., 31 Barb. 403 121 
 
 Nichols V. Ruggles, 76 Me. 27 12 
 
 Nightingale v. Meginnis, 34 N. J. Law, 461 109 
 
 Northampton National Bank v. Kidder, 106 N. Y. 221 60 
 
 North Atchison Bank v. Garretson, 51 Fed. Rep. 167 118, 119 
 
 Northern National Bank v. Arnold, 187 Pa. St. 356 56 
 
 Northwestern Coal Co. v. Bowman, 69 Iowa, 153 7, 98, 141 
 
 National Bank v. Bank of Commerce, 107 ^io. 402. 42 
 
 Norton v. Ellam, 2 M. & W. 461 72 
 
 Norwich Bank v. Hyde, 13 Conn. .284 23 
 
 Ocean National Bank v. Fant, 50 N. Y. 474, 476 yy, 78 
 
 V. Williams, 102 Mass. 141 130 
 
 O'Connor v. Mechanics' Bank, 124 N. Y. 324 144 
 
 Oppenheimer v. Farmers' and Mechanics' Bank, 97 Tenn. 19 11, 57 
 
 Osbourne v. Hubbard, 20 Oregon, 318 17 
 
 Otis V. Cullum, 92 U. S. 448 67 
 
 Overton v. Tyler, 3 Pa. St. 346 15 
 
 Ovrick V. Colston, 7 Gratt. 189 23 
 
 Oxford Bank v. Davis, 4 Cush. 188 124 
 
 Oxnard v. Varnum, 1 1 1 Pa. St. 193 yy 
 
 Pacific Bank v. Mitchell, 9 Met. 297 106 
 
 Page V. Monell, 3 Abb. Ct. App. Dec. 433 22 
 
 Paine v. Central Vermont R. R. Co., 118 U. S. 152 74 
 
 V. Edsell, 19 Pa. St. 178 92, 112 
 
 Pardee v. Fish, 60 N. Y. 265 74 
 
 Parker v. City of Syracuse, 31 N. Y. 376 13 
 
xxvi TABLE OF CASES. 
 
 Parker v. Gordon, 7 East. 387 78 
 
 V. Kellogg, 158 Mass. 90 n 
 
 V. Stroud, 98 N. Y. 379 73, 74 
 
 Parks V. Smith, 155 Mass. 26, 33 100 
 
 Passmore v. North, 13 East. 517 21 
 
 Patch V. Washburn, 82 Mass. 82 70 
 
 Patterson v. Todd, 18 Pa. St. 420 18, 48 
 
 Peach V. Bligh, 37 111. 317 40 
 
 Pearce v. Langfit, loi Pa. St. 507 97 
 
 Peason v. Garrett, 4 Mod. 242 14 
 
 Pennsylvania Woods v. North, 84 Pa. St. 407 11 
 
 People's Bank z;. Bogart, 81 N. Y. loi 67 
 
 V. Brooke, 31 Md. 7 130 
 
 V. Franklin Bank, 88 Tenn. 299 62 
 
 V. Keech, 26 Md. 521 79 
 
 Savings Bank v. Bates, 120 U. S. 556 33 
 
 Perez v. Bank of Key West, 36 Fla. 467 106 
 
 Perry v. Bigelow, 128 Mass. 129 15 
 
 Persons v. Hawkins, 41 App. Div. (N. Y.) 171 40 
 
 V. Kruger, 45 App. Div. 187 92 
 
 Phelan v. Moss, 67 Pa. St. 59 54 
 
 Phelps V. Stocking, 21 Neb. 444 95 
 
 V. Vischer, 50 N. Y. 69 65 
 
 Phillips V. Astberg, 2 Taunt. 206 76 
 
 V. Dippo, 93 Iowa 35 100 
 
 V. Preston, 5 How. (U. S.) 27S 70 
 
 Phcenix Bank v. Hussey, 12 Pick. 483 116, 128 
 
 Insurance Co. v. Allen, 11 j\Iich. 30 124 
 
 Pickle V. People's National Bank, 88 Tenn. 380 144 
 
 Pier V. Heinrichsoffen, 67 Mo. 163 81, 96 
 
 Pierce v. Indseth, 106 U. S. 546 129 
 
 V. Strvithers, 27 Pa. St. 249 77 
 
 Pine c'. Smith, II Gray, 38 51 
 
 Pitts V. Jones, 9 Fla. 519 104 
 
 Place V. INIcIlvain, 38 N. Y. 96 log 
 
 Planters' Bank v. Evans, 36 Tex. 592 103 
 
 V. Keese, 7 Heish, 200 141 
 
 Piatt V. The Sauk County Bank, 17 Wis. 222 17 
 
 Poole v. Tolleson, i ^McCord, 200 18, 48 
 
 Porter v. Judson, i Gray, 175 129, 130 
 
 V. Porter. 51 Me. 376 18 
 
 Power V. Mitchell, 7 Wis. 159 82, 83 
 
 Prescott Bank v. Coverly, 7 Gray, 216 7, 66, 67, 124 
 
 National Bank v. Butler, 157 ^lass. 548 69 
 
 Preston v. Mann, 25 Conn. 127 48 
 
 Price V. Jones, 105 Ind. 544 14 
 
TABLE OF CASES. XXVI 1 
 
 Pulsifer v. Hotchkiss, 12 Conn. 234 36 
 
 Purcell V. Allemong, 22 Gratt. 739 142 
 
 Quinn v. Hoord, 43 Vt. 375 33 
 
 Railroad Company v. National Bank, 102 U. S. 14 33 
 
 Rand v. Dovey, 83 Pa. St. 281 48 
 
 V. Reynolds, 2 Gratt. 171 98 
 
 Ranger v. Cory, i Mete. 369 52 
 
 Raymond v. Sellick, 10 Conn. 485 18, 32 
 
 Redlich v. Doll, 54 N. Y. 238 22, 23 
 
 Redman v Adams, 51 Me. 433 12 
 
 Reed v. Wilson, 41 N. J. Law, 29 78 
 
 Regina Flour Mil! Co. v. Holmes, 156 Mass. 11 43 
 
 Reier v. Straus, 54 Md. 278 129 
 
 Reilly v. Daly, 159 Pa. St. 605 115 
 
 Reinhart v. Schall, 69 Md. 352 70, iii 
 
 Reynolds v. Appleman, 41 Md. 615 129 
 
 Rice V. Grange, 131 N. Y. 149 35, 37 
 
 V. Rice, 43 App. Div. (N. Y.) 458 14 
 
 Ricketts v. Pendleton, 14 Md. 320 40, yy, 105, 129 
 
 Ridgeley Bank v. Patton, 109 111. 484 141 
 
 Rienke v. Wright, 67 N. W. Rep. 737 (Wis.) 82 
 
 Riker v. Sprague Manufacturing Co. 14 R. I. 402 14 
 
 Riverside Bank v. Woodhaven June L. Co., 34 App. Div. N. Y. 
 
 362 ; 32 
 
 Roach V. Ostler, i Man & Ry. 120 103 
 
 V. Woodall, 91 Tenn. 206, Wisconsin 30, 34 
 
 Roberts v. Hall, 37 Conn. 205 33 
 
 V. Hawkins, 70 Mich. 566 88 
 
 V. McGrath, 38 Wis. 52 25 
 
 V. Parish, 17 Oregon, 583 43 
 
 V. Snow, 28 Neb. 425 18 
 
 Robertson v. Breedlone, 7 Porter, 541 58 
 
 V. Kensington, 4 Taunt. 30 45 
 
 Robins v. Lair, 31 Iowa, 9 33 
 
 Robinson v. Ames, 20 Johns. 146 124 
 
 V. Barnett, 19 Fla. 670 99 
 
 V. Lymon, 10 Conn. 31 58 
 
 Robson V. Bennett, 2 Taunt. 388 89 
 
 Rock County National Bank v. Hollister, 21 Minn. 385 43 
 
 Rockville National Bank v. Holt, 58 Conn. 526 no 
 
 Rogers v. Durrant, 140 U. S. 298 141 
 
 V. Sipley, 35 N. J. Law, 86 38 
 
 V. Squires, 98 N. Y. 49 34 
 
 V. Vosburgh, 87 N. Y, 208 114 
 
XXVlll TABLE OF CASES. 
 
 Rome J'. Young, 2 Bred. & Bing. 165 ; 2 Bligh. 391 121 
 
 Ross V. Bedell, S Duer, 462 104 
 
 V. Htird. 71 N. Y. 14 82; 99 
 
 Rosson V. Carroll, 90 Tenn. 90 18, 48, 89, 95, 129, 130 
 
 Rouvant z'. San Antonia National Bank, 63 Tex. 610 62 
 
 Rowland v. Fowler, 47 Conn. 349 57 
 
 Ruiz V. Renauld, lOO N. Y. 256 119 
 
 Rumball v. B-all, 10 Md. 38 72 
 
 Russ :'. Sadler, 197 Pa. St. 51 70 
 
 Russell V. Langstaffe, 2 Doug. 514 22 
 
 Salmon v. Hopkins, 61 Conn. 47 46 
 
 Salt Springs National Bank i'. Burton, 58 N. Y. 430 75, 78 
 
 Sanderson v. Sanderson, 20 Fla. 292 95 
 
 Sargent v. Southgate, S Pick. 312 51 
 
 Sasscer v. Farmers' Bank, 4 Md. 409 90, 96 
 
 V. Stone, ID Md. 98 77 
 
 Saylor v. Bushong, 100 Pa. St. 27 144 
 
 Schaeffer z'. Fowler, iii Pa. St. 451 Tennessee 34 
 
 Schierl v. Vaumel, 75 Wis. 75 100 
 
 Schmittler v. Simon, loi N. Y. 554 12, 47. 120, 125 
 
 Schroeder Z'. Turner. 68 Md. 506 64 
 
 Scott V. Pilkington, 15 Abb. Pr. 280 120 
 
 Scudder v. Union National Bank, 91 U. S. 406 119 
 
 Seaton v. Scoville, 18 Kans. 433 1 1, 97 
 
 Seaver v. Lincoln, 21 Pick. 267 74 
 
 Second National Bank of Aurora z'. Basuier, 65 Fed. Rep. 58 10 
 
 V. Anglin. 6 Wash. 403 11 
 
 I'. Morgan. 165 Pa. St. 199 54 
 
 Sedgwick v. McKim, 53 N. Y. 307 24 
 
 Seldner v. Mount Jackson National Bank, 66 Md. 488 82, 93 
 
 Self V. King, 28 Tex. 552 j8 
 
 Serle v. Norton, 9 M. & W. 309 21 
 
 Shaw V. Camp, 160 111. 425 14 
 
 I'. Knox, 98 Mass. 214 70 
 
 V. Pratt, 22 Pick. 305 107 
 
 Shawmut National Bank z: Manson, 168 Mass. 425 32, 52 
 
 Shedd V. Brett, i Pick. 401 75_ gj^ gg 
 
 Shelburne Falls National Bank z: Townley, 102 Mass. 177 97, 98 
 
 Sheldon v. Benham, 4 Hill, 129 ni 
 
 Z'. Heaton, 88 Hun, 535 ig 
 
 Shenandoah National Bank zi. Marsh, 89 Iowa, 273 ix 
 
 Shepard v. Chamberlain, 8 Gray, 225 78 
 
 V. Hawley, i Conn. 367 n^ 
 
 Sherer v. Easton Bank, 33 Pa. St. 134 '.'.'. .....93, 130 
 
 Shipman v. Bank of the State of New York. 126 N. Y. 318 ' 20 
 
TABLE OF CASES. XXIX, 
 
 Shires v. Commonwealth, 120 Pa. St. 368 145 
 
 Shoemaker v. Mechanics' Bank, 59 Pa. St. 79 97 
 
 Shoenberger's Executor v. Lancaster Savings In.stitution, 28 Pa. 
 
 St. 459 93 
 
 Shover v. Western Union Telegraph Co., 57 N. Y. 459 119 
 
 Shutts V. Fingar, 100 N. Y. 539 74, loS 
 
 Sice V. Cunningham, I Cowen, 397 52 
 
 Siebeneck v. Anchor Savings Bank, iii Pa. St. 187 109, no 
 
 Sieger v. Second National Bank, 132 Pa. St. 307 104 
 
 Simmons v. Thompson, 29 App. Div. (N. Y.) 559 40 
 
 Simpson v. Davis, 119 Mass. 269 112 
 
 V. Hall, 47 Conn. 417 49 
 
 Simu5 V. Larkin, 19 Wis. 390 99 
 
 Skilbeck v. Garbett, 7 Q. B. 846 97 
 
 Slack V. Kirk, 67 Pa. St. 380 70 
 
 Slagel I'. Rust, 4 Gratt. 274 70 
 
 Sloan V. The Union Banking Co., 67 Pa. St. 470 55 
 
 Slocomb V. Lizzardi, 21 La. Ann. 355 93 
 
 Smalley v. Wright, 40 N. J. Law, 471 93 
 
 Smith V. Caro, 9 Oregon, 280 18, 47, 69 
 
 V. Clarke, Peake, 225 45 
 
 V. Dunham, 8 Pick. 246 114 
 
 V. Ellis, 29 Me. 422 13 
 
 V. Erwin, yy N. Y. 466 109 
 
 V. Fisher, 24 Pa. St. 222 82 
 
 V. Hill, 6 Wis. 154 92 
 
 V. Kendall, 67 R. 123 19 
 
 V. Lounsdale, 6 Oregon, 78 82, 100 
 
 V. Marsack, 6 C. B. 486 63 
 
 V. Melton, 133 Mass. 369 125 
 
 V. Pickham, 8 Tex. Civ. App. 326 100 
 
 V. Poillon, 87 N. Y. 590 95 
 
 V. Rockwell, 2 Hill, 482 77 
 
 V. Shippey, 182 Pa. St. 24 41 
 
 V. Smith, I R. I. 388 26 
 
 Sneel v. Prescott, i Atk. 245 42 
 
 Snoddy v. Bank, 88 Tenn. 573 55 
 
 Solomon v. Hopkins, 6t Conn. 47 27 
 
 Southern Loan Co. v. Morris, 2 Pa. St. 175 67 
 
 Spann v. Baltzell, i Fla. 301 9°. 130 
 
 Spear v. Pratt, 2 Hill, 582 118 
 
 Spencer v. Allerton, 60 Conn. 410 65 
 
 V. Carstarphen, 15 Colo. 445 40 
 
 V. Sloan, 108 Ind. 183 33 
 
 Spoffard v. Norton, 126 Mass. 333 43 
 
 Sprague v. Fletcher, 8 Oregon, 367 loi 
 
XXX TABLE OF CASES. 
 
 Spurgeon v. Smiths, 1 14 Ind. 453 108 
 
 Stanton v. Blossom, 14 Mass. 116 88 
 
 Stapleton v. Louisville Banking Co. 95 Ga. 802 11 
 
 Stark V. Olsen, 44 Neb. 646 n 
 
 Staylor v. Ball. 24 Md. 183 loi, 102 
 
 Steadman v. Jilman, 10 Conn. 56 58 
 
 Steckel v. Steckel, 28 Pa. St. 233 52 
 
 Stein V. Yglesias, i Crom. Mees. & Ros. 565 58 
 
 Stephens v. Monogahela National Bank, 88 Pa. St. 157 34, 36 
 
 Stephenson v. Dickson, 24 Pa. St. 148 95 
 
 I'. Dickson, 24 Pa. St. 148 105 
 
 Sterry v. Robinson, i Day, 1 1 ( Conn. ) 127 
 
 Stevens v. Brice, 21 Pick. 193 52 
 
 Stewart v. Eden, 2 Cai. 121 108 
 
 V. Kennett, 2 Camp. 177 88 
 
 V. Preston, i Fla. 10 44 
 
 St. L. & S. F. Ry. Co. V. Johnston, 133 U. S. 566 144 
 
 Stoneman v. Pyle, 35 Ind. 103 11 
 
 Struthers v. Blake, 30 Pa. St. 139 77, 97 
 
 Stuber v. Schack, 83 111. 192 109 
 
 Sullivan v. Langley, 120 Mass. 137 59 
 
 Sulsbacker v. Bank of Charlestown, 86 Tenn. 201 76, 126 
 
 Summers v. Barrett, 65 Iowa, 292 83 
 
 V. Bo wen, 2 Wis. 524 129 
 
 Sumner v. Kimball, 2 Wis. 524 105 
 
 Sumwalt V. Rigeley, 20 Md. 107 29 
 
 Superior City v. Ripley, 138 U. S. 93 1 18 
 
 Sussex Bank v. Baldwin, 2 Harr. 4S7 (N. J.) 75, gi 
 
 Suydam v. Combs, 3 Green (N. J.) 133 63 
 
 Sweeney v. Thickstum, yy Pa. St. 131 15 
 
 Sweeny v. Easter, i Wall. 173 42 
 
 Swengle v. Wells, 7 Ore. 222 86 
 
 Swift V. Smith, 102 U. S. 442 54 
 
 V. Tyson, 16 Pet. i 33 
 
 Swope V. Ross, 40 Pa. St. 186 62 
 
 Sylvester v. Crohan, 138 N. Y. 494 jt^ 
 
 Bleckley Co. v. Alewine, 48 S. C. 308 11 
 
 Talcott V. Cogswell, 3 Day, 512 70 
 
 Talman v. American National Bank, (R. I.) 48 Alt. Rep. 480.... 31 
 
 Tanner v. Hall, i Pa. St. 417 38 
 
 Tate V. Sullivan, 30 Md. 464 102, 105 
 
 Taunton Bank v. Richardson, S Pick. 436 83 
 
 Taylor •?■. Croker, 4 Esp. 187 52 
 
 Terbell v. Jones, 15 Wis. 253 gc)_ 130 
 
 Terry v. Bissell, 26 Conn. 41 31 
 
TABLE OP CASES. XXxi 
 
 Third National Bank v. Bowman, 50 App. Div. 66 13 
 
 Thompson v. Commercial Bank, 3 Caldio, 49 1 16 
 
 V. Ketcham, 8 Johns. 146 18 
 
 Thornton v. Appleton, 29 Me. 298 114 
 
 V. Wynn, 12 Wheat. 183 100 
 
 Throop Grain Cleaner Co. v. Smith, no N. Y. 83 116, 144 
 
 Thurston v. McKenn, 6 Mass. 428 52 
 
 Tidmarsh v. Grover, I Maule & S. 735 114 
 
 Tindal v. Brown, i Term Rep. 167 88 
 
 Tobey v. Lenning, 14 Pa. St. 483 90 
 
 Tod V. Wick, 36 Ohio St. 370 145 
 
 Todd V. Neal's Administrator, 49 Ala. 273 130 
 
 V. Shelburne, 8 Hun. 512 57 
 
 Tombeckbe Bank v. Stratton, 7 Wend. 429 109 
 
 Tomlinson Carriage Co. v. Kinsella, 31 Conn. 273 7 
 
 Torrey v. Frost, 40 Me. 74 104 
 
 Town V. Rice, 122 Mass. 67 15 
 
 of Solon V. Williamsburgh Savings Bank, 114 N. Y. 122 
 
 112, 113 
 
 Townsley v. Sumrall, 2 Pet. 170 129 
 
 Trader v. Chicester, 41 Ark. 242 11 
 
 Traders' National Bank v. Rogers, 167 Mass. 315 31 
 
 Trickey v. Larne, 6 M. & W. 278 36 
 
 Troy City Bank v. Lanman, 19 N. Y. 477 121 
 
 Trustees of the I. I. Fund v. Lewis, 34 Fla. 424 86, 140 
 
 Turnbull v. Maddux, 68 Md. 579 99 
 
 Turner v. Iron Chief Mining Co., 74 Wis. 355 7i 
 
 Tuscumbia, etc., R. R. Co. v. Rhodes, 8 Ala. 206 58 
 
 Twelfth Ward Bank v. Brooks, 63 App. Div. 220 in 
 
 Tyler v. Young, 30 Pa. St. 143 74 
 
 Ulster County Bank v. McFarlan, 5 Hill, 432 119 
 
 Union Bank v. Fowlkes, 2 Sneed, 556 116 
 
 V. Willis, 8 Mete. 504 80 
 
 United States v. American Exchange National Bank, 70 Fed. 
 
 Rep. 232 68 
 
 V. Hodge, 6 How. 279 (U. S.) 109 
 
 V. White, 2 Hill, 59 19 
 
 National Bank v. Ewing, 131 N. Y. 506 38 
 
 University Press v. Williams, 48 App. Div. (N. Y.) 190 102 
 
 Valley National Bank v. Uhler, 191 Pa. St. 356 100 
 
 Vanarsdale v. Hax, 107 Fed. Rep. 878 48 
 
 Van Duzer v. Howe, 21 N. Y. 531 23 
 
 Van Hoosen v. Van Alstyne, 9 Wend. 79 18, 48 
 
 Vathir v. Zane, 6 Gratt. 246 59 
 
XXXU TABLE OP CASES. 
 
 Vinton v. King, 4 Allen, 562 51 
 
 Vosburgh t-. Diefendorf, iig N. Y. 357 54 
 
 Wagman v. Hoag, 14 Barb. 233 no 
 
 Wagner v. Kenner, 2 Rob. 120 21 
 
 Wahlig ■:■. The Standard P-jmp Manufacturing Co., 25 N. Y. St. 
 
 Rep. 864 37 
 
 Walker v. Bank of State of New York, 13 Barb. 636 121 
 
 v. Ebert, 29 Wis. 194 56 
 
 z: N. Y. State Bank, 9 N. Y. 582 123 
 
 Wall I'. Hallenbeck, 19 Net. 639 40 
 
 Wallace r. Agry, 4 JNIason, 3a 124 
 
 t'. Crilly, 46 Wis. 577 76 
 
 I'. ]\IcConnell. 13 Peters, 136 73, 122 
 
 Walsh V. Blatchley, 6 Wis. 422 124, 138 
 
 7 Dort, 23 Wis. 334 124 
 
 Ward V. Tyler, 52 Pa. St. 393 43 
 
 Waring i'. Betts, go Va. 46 76, 78 
 
 Water\ liet Bank z'. White, i Denio, 608 46 
 
 Watson I'. Wyman, 161 Mass. 96, gg 86 
 
 Way Z'. Butterworth, 108 Mass. 509 yg 
 
 Weaver z>. Broden, 49 N. Y. 286 33 
 
 Weber v. Orton, 91 Mo. 680 50, 75 
 
 Weeks z'. Esler, 143 N. Y. 374 16 
 
 Weems t'. Farmers' Bank, 15 Aid. 231 79, 105, 129 
 
 Welsh V. B. C. Taylor INTanufacturing Co., 82 111. 581 80 
 
 V. Sage, 47 N. Y. 143 54 
 
 Welton z'. Brown, 25 Fla. 461 
 
 West Branch Bank z'. Fulner, 3 Pa. St. 399 103 
 
 Western Wheeled Scraper Co. Z'. Sadilek, 50 Neb. 105 142 
 
 Westfall z'. Farnell, 13 Wis. 504, 509 pi^ g2 
 
 Westminster Bank v. Wheaton, 4 R. I. 30, 50 Met. 105 141 
 
 West River Bank v. Taylor, 34 N. Y. 128 89, 108 
 
 Weyerhauser z'. Dunn, 100 N. Y. 150 23, 114 
 
 Weyman z'. Yeomans, 84 111. 403 114 
 
 Wheeler v. Field. 6 I\Ietc. 290 82 
 
 z: Guild. 20 Pick. 545, 553 86 
 
 I'. Warner, 47 N. Y. 5ig 74 
 
 T'. Webster, i E. D. Smith, i 118 
 
 White z'. Camp, i Fla. 94 47 
 
 Whiteford ;■. Burckmeyer, i Gill, 127 gg 
 
 I'. Munroe, 17 !\rd. 135 m 
 
 Whitehead z: Walker, 10 Mees & Welsh. 696 58 
 
 Whiten z'. Flayden, 9 Allen, 408 43 
 
 Whitesides z\ Northern Bank, 10 Bush. 501 114 
 
 Whitney I'. Clary, 145 ]\Iass. 156 32 
 
TABLE OP CASES. XXXIU 
 
 Whitney v. Collins, 15 R. I. 44 "j^ 
 
 V. Elliot Nat. Bank, 137 Mass. 351 12 
 
 V. National Bank of Potsdam, 45 N. Y. 303 66 
 
 Whittaker v. Morrison, i Fla. 25 100 
 
 Whittle V. Fond du Lac National Bank, 26 S. W. Rep. 1106 10 
 
 Whitwell V. Brigham, 19 Pick. 117 63, 94 
 
 V. Johnston, 17 Mass. 499 95 
 
 Wilkie V. Chandon, i Wash. 355 loi 
 
 Wilkins v. Jadis, 2 B. & Ad. 188 75 
 
 Willett V. Phoenix Bank, 2 Duer. 121 21 
 
 Williams v. Bank of United States, 2 Peters, 96 98 
 
 V. Banks, 11 Md. 198 37 
 
 V. Drexel, 14 Md. 566 62 
 
 V. Holt, 170 Mass. 351 SO 
 
 V. Huntington, 68 Md. 590 54, 57, 59 
 
 V. Moseley, 2 Fla. 304 17 
 
 V. Winans, 2 Gr. 239 (N. J.) 119 
 
 Williamsport Gas Co. v. Pinkerton, 95 Pa. St. 62 75 
 
 Willis V. Finley, 173 Pa. St. .28 142 
 
 V. Green, 5 Hill, 232 80, 93 
 
 V. Wilson, 3 Oregon, 308 113, 114 
 
 Wilson V. Lazier, 11 Gratt. 477 35, 59 
 
 V. Metropolitan Elevated Ry. Co. 120 N. Y. 145 55 
 
 V. Powers, 130 Mass. 127 109 
 
 V. Senier, 14 Wis. 380 81 
 
 V. Tolson, 79 Ga. 137 43 
 
 V. Wilson, 26 Oregon, 315 32 
 
 Winans v. Davis, 3 Harr. 276 (N. J.) 96 
 
 Windham Bank t'. Norton, 22 Conn. 213 81, 96 
 
 Wintermute v. Torrent, 83 Mich. 555 43 
 
 Wirt V. Stubblefield, 7 App. Cas. D. C. 283 56 
 
 Wise V. Charlton, 4 A. & E. 486 15 
 
 Witherow v. Slaybach. 158 N. Y. 649 70 
 
 Wittich V. First Nat. Bank of Pensacola, 20 Fla. 843 141 
 
 Wolf V. Hostetter, 182 Pa. St. 292 70 
 
 Woman v. Frost, 52 N. Y. 422 35. 37 
 
 Wood V. Repold, 3 Harris & J. 125 70 
 
 V. Robinson, 22 N. Y. 567 33 
 
 V. Sheldon, 42 N. J. Law, 425 67 
 
 V. Steele, 6 Wall. 80 113, 114 
 
 Woodman v. Thurston, 8 Cush. 157 loi 
 
 Woods V. Neeld, 44 Pa. St. 86 98 
 
 V. North, 84 Pa. St. 407 11 
 
 Son Co. V. Schaefer, 173 Mass. 443 40 
 
 Woolenweber v. Ketterlin, 17 Pa. St. 389 103 
 
 Wooley V. Cobb, 165 Mass. 503 40 
 
XXXIV TABLE OP CASES. 
 
 Worthington v. Cowles, 12 Mass. 30 71 
 
 Wright V. Harts, admr. 44 Pa. St. 454 17 
 
 V. Irwin, ^,2, Mich. 32 10 
 
 Wyckoff V. Runyon, :S2) N. J. Law, 107 36 
 
 Yenney v. Central City Bank, 44 Neb. 402 50 
 
 Yingling v. Kohlhass, 18 Md. 148 9 
 
 Young V. Durgin, 15 Gray, 264 gg 
 
 V. Shriner, 80 Pa. St. 463 58 
 
 Youngs V. Lee, 12 N. Y. 551 gr 
 
 Zimmerman v. Anderson, 67 Pa. St. 421 15 
 
 V. Rote, 75 Pa. St. 188 15 
 
THE NEGOTIABLE INSTRUMENTS LAW. 
 
THE IGOTIABIE INSTRUMENTS LAW. 
 
 New York, Laws of i8py. Chapter 612; 1898, Chapter 
 
 336. 
 Massachusetts, Laws of i8p8, Chapter 533 ; 1899, Chapter 
 
 130. 
 Rhode Island, Laws of i8pp, Chapter 674. 
 Connecticut, Lazvs of i8p/, Chapter 74. 
 Pennsylvania, Lazvs of ipoi, Chapter 162. 
 District of Columbia, Laws of i8pp (United States), 
 
 Chapter 47. 
 Maryland, Laws of i8p8, Chapter 119. 
 Virginia, Laws of i8p8, Chapter 866. 
 North Carolina, Laws of i8pp, Chapter 733. 
 Tennessee, Laws of i8pp, Chapter 94. 
 Florida, Laws of i8p/, Chapter 4524. 
 "Wisconsin, Lazvs of i8pp, Chapter 356. 
 North Dakota, Lazvs of i8pp, Chapter 113. 
 Colorado, Lazvs of i8pi. Chapter 239. 
 Utah, Laws of i8pp, Chapter 83. 
 Oregon, Laws of i8pp. 
 Washington, Lazvs of i8pp, Chapter 149. 
 
 Article I. General provisions. (§§ 1-7.) 
 
 II. Form and interpretation of negotiable instru- 
 ments. (§§ 20-42.) 
 
 III. Consideration. (§§ 50-55.) 
 
 IV. Negotiation. (§§ 60-80.) 
 
 V. Rights of holder. ( § § 90-98. ) 
 
THE NEGOTIABLE INSTRUMENTS LAW. 
 
 Article VI. 
 
 VII. 
 
 VIII. 
 
 IX. 
 
 X. 
 
 XI. 
 
 XII. 
 
 XIII. 
 
 XIV. 
 
 XV. 
 
 XVI. 
 
 XVII. 
 
 XVIII. 
 
 XIX. 
 
 Liabilities of parties. (§§ 110-119.) 
 Presentment for payment. (§§ 130-148.) 
 Notice of dishonor. (§§160-189.) 
 Discharge of negotiable instruments. 
 
 (§§ 200-206.) 
 Bills of exchange; lorm ana mterpretation. 
 
 (§§ 210-215.) 
 Acceptance. (§§ 220-230.) 
 Presentment for acceptance. (§§ 240-248.) 
 Protest. (§§ 260-268.) 
 Acceptance for honor. ( § § 280-290. ) 
 Payment for honor. (§§ 300-306.) 
 Bills in a set. (§§ 3 10-31 5-) 
 Promissory notes and checks. (§§ 320-325.) 
 Notes given for a patent rights and for a 
 
 speculative consideration. (§§ 330-332.) 
 Laws repealed, when to take effect. (§§ 340- 
 
 34I-) 
 
 ARTICLE I.* 
 
 General Provisions. 
 
 Section i. Short title. 
 
 2. Definitions and meaning of tenns. 
 
 3. Person primarily liable on instrument. 
 
 4. Reasonable time, what constitutes. 
 
 5. Time, how computed; when last day falls on 
 
 holiday. 
 
 6. Application of chapter. 
 
 7. Rule of law merchant ; when governs. 
 
 * The numbers of the sections of this article in other States than New 
 York are as follows : Colorado, jNIassachusetts, North Carolina, North 
 Dakota, Pennsylvania, Utah, Virginia and Washington, 190-196; Alary- 
 land, 13-19; Oregon, 190-192; Rhode Island, 1-7; Wisconsin, 1675. In 
 Connecticut, District of Columbia, Florida and Tennessee these sections 
 are not numbered. 
 
GENERAL PROVISIONS. 5 
 
 Section i. Short title.— This act shall be known as the 
 negotiable instruments law (a). 
 
 (a) The law is confined to negotiable instruments. No attempt is 
 made to deal with instruments which are non-negotiable ; and they 
 are not governed by the statute. In determining whether the 
 rules of the statute will apply to any particular inbtrument, it is 
 first necessary to ascertain whether such instrument is negotiable, 
 according to the terms of the statute. In many instances the 
 rules will be the same for instruments of either kind; but that 
 is not because instruments which are non-negotiable are governed 
 by the statute, but because the statute is a codification of common 
 law rules which before its adoption applied equally to both classes 
 of instruments. In other words, a negotiable instrument is gov- 
 erned by the statute and a non-negotiable instrument by the 
 rules of the common law, though frequently these rules will be 
 the same. For example, if a note drawn payable at a bank contains 
 terms which render it non-negotiable, the provision of section 87, 
 that "where the instrument is made payable at a bank it is equiv- 
 alent to an order to the bank to pay the same for the account of 
 the principal debtor thereon," would not apply ; but the case would 
 be governed by the rule of the common law, which is the same as 
 the statutory rule in some of the States, but different in others. 
 This distinction must be carefully borne in mind, or much con- 
 fusion will result. 
 
 § 2. Definitions and meaning of terms. — In this act, 
 unless the context otherwise requires : 
 
 " Acceptance" means an acceptance completed by delivery 
 or notification. 
 
 " Action" includes counter-claim and set-off. 
 
 " Bank" includes any person or association of persons 
 carrying on the business of banking, whether incorporated 
 or not. 
 
 " Bearer" means the person in possessioa of a bill or note 
 which is payable to bearer. 
 
 "Bill" means bill of exchange, and " note" means nego- 
 tiable promissory note. 
 
 " Delivery" means transfer of possession, actual or con- 
 structive, from one person to another. 
 
6 THE NEGOTIABLE INSTRUMENTS LAW. 
 
 " Holder" means the paj^ee or indorsee of a bill or note, 
 who is in possession of it, or the bearer thereof. 
 
 •■ Indorsement" means an indorsement completed by 
 deli\ery. 
 
 " Instrument" means negotiable instrument. 
 
 " Issue" means the first delivery of the instrument, com- 
 plete in form, to a person who takes it as a holder. 
 
 " Person" includes a body of persons, whether incorpo- 
 rated or not. 
 
 " Value" means valuable consideration. 
 
 " Written" includes printed, and " writing" includes 
 print. 
 
 § 3. Person primarily liable on instrument. — The 
 
 person " primarily" liable on an instrument is the person 
 who by the terms of the instrument is absolutely required 
 to pay the same. All other parties are " secondarily" 
 liable (a). 
 
 (a) This section is to be construed in connection with section 37, 
 which provides that " no person is liable on the instrument whose 
 signature does not appear thereon;" and also with section 211, 
 which provides that " the drawee is not liable on the bill unless 
 and until he accepts the same;'" and with section 325, which pro- 
 vides that " the bank is not liable to the holder unless and until 
 it accepts or certifies the check." These are not, by the terms of 
 the instrument, absolutely required to pay the same until such 
 acceptance or certification. 
 
 §4. Reasonable time, what constitutes. — In deter- 
 mining what is a " reasonable time" or an " unreasonable 
 time," regard is to be had to the nature of the instrument, 
 the usage of trade or business (if any) with respect to such 
 instruments, and the facts of the particular case (a). 
 
 (a) Wliere the facts are doubtful or disputed, the question of rea- 
 sonable time is a mixed question of law and fact. But when the 
 facts are clear and undisputed, the question is one of law for the 
 
GENERAL PROVISIONS. 7 
 
 court. Prescott Bank v. Coverly, 7 Gray, 217 ; Gilmore v. Wilbur, 
 12 Pick. 124; Holbrook v. Burt, 22 Pick. 555; Nortliwestern Coal 
 Co. V. Bowman, 69 Iowa, 153 ; Aymar v. Beers, 7 Cow. 705 ; Tomlin- 
 son Carriage Co. v. Kinsella, 31 Conn. 273. 
 
 § 5. Time, how computed ; when last day falls on 
 holiday. — Where the day, or the last day, for doing any act 
 herein required or permitted to be done falls on Sunday or 
 on a holiday, the act may be done on the next succeeding 
 secular or business day (o). 
 
 (a) As to the mode of computing time, see the New York Stat- 
 utory Construction Law (§§ 26, 27). 
 
 8 6. Application oi chapter. — The provisions of this 
 act do not apply to negotiable instruments made and 
 delivered prior to the passage hereof (a). 
 
 (a) The time when the statute was to take effect is provided for 
 by section 341. In New York this was October 1st, 1897. But while 
 the law did not go into effect until then, its application is not 
 limited to instruments made after that date. An instrument 
 made and delivered after the passage of the act was equally 
 within its operation after October 1st. For example, if a note 
 payable four months after date was dated and delivered on July 
 15th, 1897, it must, at maturity, have been presented for payment in 
 the manner prescribed by the statute ; and if dishonored, the statu- 
 tory rules as to giving notice of dishonor must have been complied 
 with. But in the ease of a nota dated and delivered April 15th, 
 1897, and payable six months after date, none of the provisions of 
 the statute apply. 
 
 § 7. Law merchant ; when governs. — In any case not 
 provided for in this act the rules of the lavi^ merchant shall 
 govern (a). 
 
 (a) It is to be observed that the rules governing in such cases are 
 not those which existed by virtue of a statute. All prior statutes 
 upon the subject of bills and notes are repealed; and where a case 
 arises which is not provided for in the Negotiable Instruments 
 
8 THE NEGOTIABLE INSTRUMENTS LAW. 
 
 Law, it is not to be determined by resort to any of the former 
 statutes, but by reference to the rules of the law merchant. 
 
 ARTICLE IL* 
 Form and Interpretation. 
 
 Section 20. Form of negotiable instrument. 
 
 21. Certainty as to sum; what constitutes. 
 
 22. When promise is unconditional. 
 
 23. Determinable future time; what constitutes. 
 
 24. Additional provisions not affecting negotia- 
 
 bility. 
 
 25. Omissions; seal; particular money. 
 
 26. When payable on demand. 
 
 27. When payable to order. 
 
 28. When payable to bearer. 
 
 29. Terms when sufficient. 
 
 30. Date, presumption as to. 
 
 31. Ante-dated and post-dated. 
 
 32. When date may be inserted. 
 
 33. Blanks, when may be filled. 
 
 34. Incomplete instrument not delivered. 
 
 35. Delivery; when effectual; when presumed. 
 
 36. Construction where instrument is ambiguous. 
 2,']. Liability of person signing in trade or assumed 
 
 name. 
 
 38. Signature by agent ; authority ; how shown. 
 
 39. Liability of person signing as agent, et cetera. 
 
 40. Signature by procuration ; effect of. 
 
 41. Effect of indorsement by infant or corporation. 
 
 42. Forged signature; effect of. 
 
 * The numbers of the sections of this article in other States than New 
 York are as follows : Colorado, Connecticut, District of Columbia, 
 Florida, Massachusetts, North Carolina, North Dakota, Pennsylvania, 
 Oregon, Tennessee, Utah, Virginia, and Washington, 1-23 ; Maryland, 
 20-42; Rhode Island, 9-31; Wisconsin, 1675-1 to 1675-23. 
 
FORM AND INTERPRETATION. Q 
 
 § 20. Form of negotiable instrument.— An instrument 
 to be negotiable must conform to the following require- 
 ments : 
 
 1. It must be in writing (a) and signed by the maker or 
 drawer. 
 
 2. Must contain an unconditional promise (b) or order to 
 pay a sum certain in mortey (c) ; 
 
 3. Must be payable on demand (d), or at a fixed or 
 determinable fviture time (c) ; 
 
 4. Must be payable to order (f) or to bearer (g) ; and 
 
 5. Where the instrument is addressed to a drawee, he 
 must be named or otherwise indicated therein with reason- 
 able certainty (/i). 
 
 (a) The writing may be in pencil. Brown v. Butchers' Bank, 
 6 Hill, 443. 
 
 (6) See section 22. 
 
 (c) This is the rule of the law merchant, and the rule which pre- 
 vails in most of the States. In some States — as, for example, in 
 Iowa and Georgia — certain instruments are declared by statute to be 
 negotiable, though they provide that payment is to be made in goods 
 or merchandise. See also section 25, subdivision 5. In New York 
 warehouse receipts issued by certain corporations are declared to 
 be negotiable. See Hanover Nat. Bank v. American Dock and 
 Trust Co., 148 N. Y. 612 ; Corn Exchange Bank v. Same, 149 N. Y. 
 174. The act does not repeal these statutes. 
 
 (d) See section 26. 
 
 (e) See section 23. 
 
 (f) See Section 27. The North Carolina Act reads: "Must be 
 payable to the order of a specified person or bearer." The words 
 " sjjecified person" are surplusage, since by section 27 this is de- 
 clared to be the effect of the term " order." 
 
 (g) Yingling v. Kohlhass, 18 Md. 148; Curtis v. Hazen, 56 Conn. 
 146. If the instrument is payable to a particular person, and not 
 to his order or to bearer, it is not negotiable. Backus v. Danforth, 
 10 Conn. 297. As to bonds payable to bearer and coupons, see Carr. 
 V. Leferre, 27 Pa. St. 413 ; County of Beaver v. Armstrong, 44 Pa. 
 St. 63 ; National Exchange Bank v. Hartford etc. E. R. Co. 8 E. I. 
 375. As to Treasury notes, se^ Erazer v. D'Quilliers, 2 Pa. St. 200. 
 See section 28. 
 
lO THE NEGOTIABLE INSTRUMENTS LAW. 
 
 (h) See section 210. The Wisconsin Act has the following addi- 
 tional provision : " But no order drawn upon or accepted by the 
 treasurer of any county, town, city, village or school district, 
 whether drawn by any officer thereof or any other person, and no 
 obligation or instrument made by any such corporation or any offi- 
 cer thereof, unless expressly authorized by law to be made negotia- 
 ble, shall be, or shall be deemed to be, negotiable according to the 
 custom of merchants, in whatever form they may be drawn or 
 made. ^Yarehouse receipts, bills of lading and railroad receipts 
 upon the face of which the words ' Xot negotiable' shall not be 
 plainly written, printed or stamped, shall be negotiable as provided 
 in section 1670 of the Wisconsin Statutes of 18Y8, and in sections 
 4iri-J: and 442.5 of these statutes, as the same have been construed 
 by the Supreme Court." 
 
 § 21. Certainty as to sum ; what constitutes. — The 
 
 sum payable is a sum certain witliin tlie meaning of this act, 
 although it is to be paid : 
 
 1. \A'ith interest; or 
 
 2. By stated instalments (a) ; or 
 
 3. By stated instalments, with a provision that upon de- 
 fault in payment of any instalment or of interest (b), the 
 whole shall become due; or 
 
 4. With exchange, whether at a fixed rate or at the 
 current rate (c) ; or 
 
 5. With costs of collection or an attorney's fee, in case 
 payment shall not be made at inaturity (d). 
 
 (a) Markey v. Corey, 108 Mich. 184; Wright v. Irwin, 33 Mich. 
 32. In this case the note was for $1500, to be paid twenty per cent. 
 a month from the 1st of July, 1871. 
 
 (6) In the North Carolina Act the words " or interest" are 
 omitted. 
 
 (c) Second National Bank of Aurora v. Basuier, 65 Fed. Rep. 
 58 ; Hastings v. Thompson, 54 Minn. 184 ; Flagg v. School District, 
 4 N. D. 30; Whittle v. Fond du Lac National Bank (Tex.), 26 S. W. 
 Rep. 1106. Gonira: Culbertson v. Nelson, 93 Iowa 187. 
 
 {d) As to this point there has been much conflict in the decisions. 
 The rule adopted in the act is the one sustained by the weight of 
 authority. It is supported by National Bank v. Sutton Mfg. Co., 
 
FORM AND INTERPRETATION. II 
 
 6 TJ. S. App. 312, 331; Oppenheimer v. Farmers' and Merchants' 
 Bank, 97 Tenn. 19; Montgomery v. Crossthwait, 90 Ala. 553; 
 Trader v. Chichester, 41 Ark. 242 ; Stapleton v. Louisville Banking 
 Co. 95 Ga. 802; Dorsey v. Wolff, 142 111. 589; Stoneman v. Pyle, 
 35 Ind. 103; Shenandoah Nat. Bank v. Marsh, 89 Iowa 273, 
 Eep. 458; Benn ■;;. Kutzschan, 24 Oregon 28; Seaton v. Scoville, 
 18 Kans. 433 ; Dietrich v. Boylie, 23 La. Ann. 767 ; Second National 
 Bank v. Anglin, 6 Wash. 403 ; Heard v. Dubuque Bank, 8 Neb. 10 ; 
 Stark V. Olsen, 44 Neb. 646. The courts which have sustained this 
 rule have taken the view that so long as the amount payable is 
 certain up to the time of maturity and dishonor, it is not essential 
 that after that time, when the instrument has become non-negotia- 
 ble for other reasons, the certainty as to the amount should con- 
 tinue. In the Tennessee case above cited the court said : " Upon 
 a careful review of the authorities, we can perceive no reason why 
 a note otherwise imbued with all the attributes of negotiability is 
 rendered non-negotiable by a stipulation which is entirely inopera- 
 tive until after the maturity of the note and its dishonor by the 
 maker. The amount to be paid is certain during the currency of 
 the note as a negotiable instrument, and it only becomes uncertain 
 after it ceases to be negotiable by the default of the maker in its 
 payment. It is eminently just that the creditor who has incurred 
 an expense in the collection of the debt should be reimbursed by 
 the debtor by whom the action was rendered necessary, and the 
 expense entailed." The statute has changed the law in Maryland, 
 Maryland Fertilizing Co. v. Newman, 60 Md. 584. North Carolina 
 First National Bank v Bynum, 84 N. C. 24; Pennsylvania Woods 
 V. North, 84 Pa. St. 407. See also Jones v. Kodetz, 27 Minn. 240 ; 
 First Nat. Bank v. Gay, 63 Mo. 38 ; First Nat. Bank v. Larsen, 60 
 Wis. 206 ; Morgan v. Edwards, 53 Wis. 599 ; Sylvester Bleckley Co. 
 V. Alewine, 48 S. C. 308. The question does not appear to 
 have been passed upon by the New York courts. In some States 
 a stipulation to pay a specified percentage as an attorney's fee is 
 void. Levens v. Briggs, 21 Oregon 333. The statute, probably, 
 does not change the law of these States, since it does not attempt 
 to validate such provisions, but merely declares that their presence 
 in the instrument does not affect its negotiable quality. 
 
 § 22. When promise is unconditional. — An unquali- 
 fied order or promise to pay is unconditional within 
 the meaning of this act, though coupled with : 
 
12 THE NEGOTIABLE INSTRUMENTS LAW. 
 
 1. An indication of a particular fund out of which reim- 
 bursement is to be made, or a particular account to be debited 
 with the amount; (a) or 
 
 2. A statement of the transaction which gives rise to the 
 
 instrument (b). 
 
 But an order or promises* to pay out of a particular fund 
 is not unconditional (c). 
 
 (a) The mere mention of a fund in a draft does not necessarily 
 deprive it of the character of commercial paper, but it must further 
 appear, in order to have such effect, that it contains either an 
 express or implied direction to pay it therefrom, and not otherwise. 
 Schmittler v. Simon, 101 N. Y. 551, 560. In the case cited, a draft 
 drawn upon an executor contained the words, "and charge the 
 amount against me and of my mother's estate." It was held that 
 the reference to the estate was not a direction to pay out of it, 
 but that the estate was referred to simply as a means of 
 reimbursement. So, in Macleod v. Luce, 2 Stra. 762 ; 2 Ld. Kaym. 
 1481, where the instrument contained the words, " as my quarterly 
 half-pay, to be due from 24th of June to 27th of September next, 
 by advance," the court said, " The mention of the half -pay is only 
 by way of direction how he shall reimburse himself, but the money 
 is still to be advanced on the credit of the person;" and the court 
 accordingly held the instrument to be a bill of exchange. Like- 
 wise, in Redman v. Adams, 51 Me. 433, where the drawer added, 
 " and charge the same against whatever amount may be due me for 
 my share of iish," it was held that these words were a mere indica- 
 tion of the means of reimbursement, and did not destroy the nego- 
 tiable character of the draft. And a similar ruling was made in 
 Whitney v. Eliot National Bank, 137 Mass. 351, where the direc- 
 tions were, " charge the same to account of 250 bbls. meal ex- 
 schooner Aurora Borealis." See also Nichols v. Euggles, 76 Me. 
 27. The test is whether the drawee is confined to the particular 
 fund, or whether, though a specified fund is mentioned, he could 
 have the power to charge the bill up to the general account of the 
 drawer, if the designated fund should turn out to be insufficient. 
 Munger v. Shannon, 61 N. Y. 251, 255. 
 
 (6) This occurs most frequently in the case of notes given in 
 payment of the purchase price of goods and chattels. In Mott v. 
 Havana Nat. Bank, 22 Hun, 354, it was held that a provision in 
 
 * Error in engrossing. 
 
FORM AND INTERPRETATION. 1 3 
 
 the note that it was to he " in part payment for a portahle engine, 
 which engine shall he and remain the property of the owner of this 
 note until the amount herehy secured is paid," did not render the 
 note non-negotiahle. So where there was a similar recital as to the 
 title of a piano, for the price of which the note was given. Third 
 Nat. Bank v. Bowman, 50 App. Div. 66, reversing S. 0. 28 Misc. 
 7. And so, where there was a recital in the note that it was " given 
 in consideration of a certain patent right." Hereth v. Meyer, 33 
 Ind. 511. But see section 330. 
 
 (c) Lowery v. Steward, 25 IST. Y. 239; Hunger v. Shannon, 61 
 N. Y. 251; Parker v. City of Syracuse, 31 N. Y. 3Y6; Morton v. 
 Naylor, 1 Hill, 583. In the case first cited the order was : " Please 
 pay to the order of Archibald H. Lowery the sum of $500 on 
 account of twenty-four hales cotton shipped to you as per bill 
 of lading, by steamer Colorado, inclosed to you in letter." It was 
 held that this was not a bill of exchange, requiring acceptance to 
 bind the drawers, but a specific draft or order upon a particular 
 fund. See also National Savings Bank v. Cable (Conn.) 48 Atl. 
 Hep. 428 (a case arising under the statute). 
 
 § 23. Determinable future time ; what constitutes. — 
 
 An instrument is payable at a determinable future time, 
 within the meaning of this act, which is expressed to be 
 payable : 
 
 1. At a fixed period after date or sight ; or 
 
 2. On or before a fixed or determinable future time 
 specified therein ; (a) or 
 
 3. On or at a fixed period after the occurrence of a 
 specified event, which is certain to happen, though the time 
 of happening be uncertain (b). 
 
 An instrument payable upon a contingency is not nego- 
 tiable, and the happening of the event does not cure the 
 defect (c). 
 
 (a) In such a case the legal rights of a holder are clear and 
 certain ; the note is due at a time fixed, and it is not due before. 
 The option of the maker, if exercised, would be a payment in 
 advance of the legal liability to pay, and nothing more. See Mat- 
 tison V. Marks, 31 Mich. 421; Smith v. Ellis, 29 Me. 422 ; Buchanan 
 V. Wren (Tex.), 30 S. W. Kep. 1077; Riker v. Sprague Mfg. Co., 14 
 
14 THE NEGOTIABLE INSTRUMENTS LAW. 
 
 E. I. 402 ; Iviskadden v. Allen, 7 Colorado 20C ; Jordan v. Tate, 19 
 Ohio St. 586; Albertson v. Laughlin, 173 Pa. St. 525. Thus, 
 where the note was made payable twelve months after date, or 
 before, if the money was made out of the sale of a machine, it was 
 held to be negotiable. Ernst v. Steckman, 71 Pa. St. 13. 
 
 (b) Thus, a note payable a certain number of days after the 
 death of the maker, or upon demand after the death of the maker, 
 is a good promissory note, because the event is sure to happen. 
 Carnwright r. Ciray, 127 N. Y. 92 ; Hegeman v. Moon, 131 N. Y. 
 462. See also Shaw v. Camp, 160 111. 425 ; Martin v. Stone (N. H.), 
 29 Atl. liep. 845; Price v. Jones, 105 Ind. 544; Bristol v. Warner, 
 19 Conn. 74. But an instrument payable when, or in so many days 
 after, " A shall become of age," would not be negotiable, because 
 it is uncertain whether A will live so long. Goss v. Xelson, 1 
 Burr, 226; Eice v. Eice, 43 App. Div. (N. Y.) 458; so, a note pay- 
 able " when A shall marry." Peason v. Garrett, 4 ilod. 242 ; or 
 when a certain ship shall arrive. Coolidge v. Euggles, 15 Mass. 
 387 ; Grant v. Wood, 12 Gray, 220. 
 
 (c) Duffield V. Johnston, 95 N. Y. 369; First National Bank v. 
 Alton, 60 Conn. 402. Thus, where an instrument is made payable 
 when a certain person shall become of age, the fact that he actually 
 attains his majority does not make the instrument negotiable. 
 Goss V. Nelson, 1 Burr, 226. 
 
 § 24. Additional provisions not affecting negotiability. 
 
 — An instrument which contains an order or promise to do 
 any act in addition to the payment of money is not nego- 
 tiable. But the negotiable character of an instrument 
 otherwise negotiable is not affected by a provision which : 
 
 1. Authorizes the sale of collateral securities in case the 
 instrument be nut paid at maturity (a) ; or 
 
 2. Authorizes a confession of judgment if the instrument 
 be not paid at maturity (b) ; or 
 
 3. Waives the benefit of any law intended for the advan- 
 tage or protection of the obligor (c) ; or 
 
 4. Gives the holder an election to require something to be 
 done in lieu of payment of money ((/) . 
 
 But nothing in this section shall validate any provision 
 or stipulation otherwise illegal (e). 
 
FORM AND INTERPRETATION. 15 
 
 (a) Collateral notes are ofteu non-negotiable because of some 
 provision therein in regard to the time of payment, or because of 
 provisions requiring something to be done in addition to tlie paj- 
 ment of money. But a statement that collateral security has been 
 deposited for the performance of the promise contained in the note 
 is a recital only which does not affect its negotiability. Wise v. 
 Charlton, 4 A. & E. 486 ; Fancourt v. Thorne, 9 Q. B. 312. And a 
 provision merely authorizing the sale of the collateral, if the note 
 be dishonored, does not have this effect. Perry v. Bigelow, 128 
 Mass. 129 ; Towne v. Eice, 122 Mass. 67 ; Biegler v. Merchants' 
 Loan & Trust Co., 02 111. App. 560; Arnold r, Eock Kiver Valley 
 Union E. E. Co., 5 Duer, 207. A statement, however, that the 
 note is " given as collateral security with agreement" destroys its 
 negotiable character. Costello v. Crowell, 127 Mass. 293. 
 
 (6) This provision was inserted in the act to meet the require- 
 ments in some of the States where judgment notes are in use. Such 
 notes are not known in New York. In Pennsylvania it was held 
 that the warrant of attorney rendered the note non-negotiable. 
 Overton v. Tyler, 3 Pa. St. 346; Sweeney v. Thickstum, 77 Pa. St. 
 131. 
 
 (c) In some of the States it is a common practice to insert in 
 promissory notes a waiver of the benefits of homestead and exemp- 
 tion laws; and this provision of the act is designed to meet such 
 cases. See Zimmerman v. Anderson, 67 Pa. St. 421; Zimmerman 
 V. Eote, 75 Pa. St. 188. 
 
 (d) An illustration of this case is the right of the liolder to elect 
 to take stock of a corporation in lieu of payment in money. Hodges 
 V. Shuler, 22 N. Y. 114. As the obligation of the maker is to pay 
 in money, and as the payment in stock is not optional with him, 
 the note is not within the rule that a negotiable instrument must 
 not be payable in the alternative. — Id. 
 
 (e) The object of this provision is to prevent any inference of 
 an intent to validate any agreement or stipulation mentioned in 
 the section, where, by any statute or settled policy of the State, the 
 same would be illegal. In the Wisconsin Act the following words 
 are added : " or authorize the waiver of exemptions from execu- 
 tion." 
 
 § 25. Omissions ; seal ; particular money.— The valid- 
 ity and negotiable cliaracter of an instrument are not affected 
 by the fact that : 
 
1 6 THE NEGOTIABLE INSTRUMENTS LAW. 
 
 1. It is not dated (a) ; or 
 
 2. Does not specify the value given, or that any value has 
 been given therefor (b) ; or 
 
 3. Does not specify the place where it is drawn or the 
 place where it is payable (c) ; or 
 
 4. Bears a seal (d) ; or 
 
 5. Designates a particular kind of current money in which 
 payment is to be made (e). 
 
 But nothing in this section shall alter or repeal any statute 
 requiring in certain cases the nature of the consideration to 
 be stated in the instrument (f). 
 
 (a) See section 36, which provides that " where the instrumeiit 
 is not dated, it will be considered to be dated as of the time it was 
 issued." As between the immediate parties parol evidence is 
 admissible to show the true date of a misdated note. Bigge v. 
 Piper, 86 Tenn. 589. 
 
 (6) The words "value received" are not necessary. Daniel on 
 Negotiable Instruments, § 108. Formerly in Connecticut a prom- 
 issory note, not purporting on its face to be for value received did 
 not import a consideration. Edgerton v. Edgerton, 8 Conn. 6; 
 Bristol V. Warner, 19 Conn. 7. 
 
 (c) See sections 22, 54, 137. 
 
 (d) In two late cases in the Court of Appeals of New York it 
 was held that the commercial paper of a corporation does not lose 
 the quality of negotiability by having attached thereto the x3or- 
 porate seal. Chase Nat. Bank v. Faurot, 149 N. Y. 532; Weeks v. 
 Esler, 143 N. Y. 374. See also Mackay v. St. Mary's Church, 15 
 E. I. 121. The same rule has been applied to municipal bonds 
 under seal. Bank of Rome v. Village of Rome, 19 N. Y. 20; 
 ilercer County v. Hacket, 1 Wall. 83. And to the bonds of private 
 corporations. Brainerd v. N. Y. & IT. R. R. Co., 25 N. Y. 496. So 
 it has been held that the negotiability of a United States treasury 
 note is not restrained or affected by the fact that it is under the 
 treasury seal. Dinsmore v. Duncan, 57 N. Y. 573. In Mercer 
 County V. Hacket, supra, it was said by Justice Geier, speaking of 
 bonds issued under seal: "But there is nothing immoral or con- 
 trary to good policy in making them negotiable if the necessities of 
 commerce require that they should be so. A mere technical dogma 
 of the courts or the common law cannot prohibit the commercial 
 
FORM AND INTERPRETATION. 1 7 
 
 ■world from inventing or issuing any species of security not known 
 in the last century." See also Mason v. Frick, 105 Pa. St. 162 and 
 cases cited; Morris Canal, etc., Co. v. Fisher, 9 N. J. Eq. 699; 
 National Exchange Bank v. Hartford, P. & F. E. Co., 8 E. I. 375 ; 
 Jackson v. Myers, 43 Md. 452; Muth v. Dolfield, 43 Md. 466. 
 Contra, Osborne v. Hubbard, 20 Oregon 318. The rule adopted 
 in the act existed by statute in the following States: Colorado, 
 Florida, Georgia, Illinois, Kansas, Massachusetts, Nebraska, North 
 Carolina, Ohio, and Tennessee. 
 
 (e) Thus, a note payable in gold coin is negotiable. Chrysler v. 
 Griswold, 43 N. Y. 209. So is a note payable " in bank notes 
 current in the city of New York." Keith v. Jones, 9 Johns. 120. 
 A note payable " in New York State bills or specie." Judah v. 
 Harris, 19 Johns. 144. And a note payable "in current Florida 
 funds." Williams v. Moseley, 2 Fla. 304. But see Wright v. 
 Hart's Admr., 44 Pa. St. 454, where it was held that a note 
 payable " in current funds at Pittsburgh" was not negotiable. See 
 also Ford v. Mitchell, 15 Wis. 304; Piatt v. The Sauk County 
 Bank, lY Wis. 222; Lindsey v. McClelland, 18 Wis. 481; Klauber v. 
 Biggerstoff, 47 Wis. 551. 
 
 (f) In a number of the States it is required that notes given in 
 payment of patent rights shall have written on the face thereof 
 " given for a patent right." So there are statutes requiring that 
 what are known as " Bohemian oats" notes shall state the nature 
 of the consideration for which they were given. The above pro- 
 vision is intended to prevent any repeal of such statutes. The 
 New York statutes on the subject have been incorporated into the 
 act. See sections 330, 331. 
 
 § 26. When payable on demand. — An instrument is 
 payable on demand: 
 
 1. Where it is expressed to be payable on demand, or at 
 sight (a), or on presentation; or 
 
 2. In which no time for payment is expressed (b). 
 Where an instrument is issued, accepted or indorsed when 
 
 overdue, it is, as regards the person so issuing, accepting or 
 indorsing it, payable on demand (c). 
 
 (a) By the law merchant there are some distinctions between 
 instruments payable on demand and those payable at sight ; as, for 
 example, in the matter of days of grace. See Daniel on Negotiable 
 
l8 THE NEGOTIABLE INSTRUMENTS LAW. 
 
 Instruments, §§ 617-619, and. authorities there cited. This was 
 also the efJect of former statutes in some of the States. Walsh v. 
 Dart, 1:3 Wis. 6:j5. The nuw statute abolishes all these distinctions. 
 
 (&) Messmore v. Morrison, irJ. Pa. St. 300; Hall v. Toby, 110 
 Pa. St. 31b; James v. Brown, 11 Ohio St. 601; Holmes v. West, 17 
 Cal. 023; Porter u. Porter, 51 ]\le. 376; Keyes v. Feustomaher, 24 
 Cal. 329; Bank v. Price, 52 Inwa 530; Libby v. ilekelborg, 2S 
 Minn. 38; Roberts v. Snow, 2S Xeb. -125; Bacon v. Page, 1 Conn. 
 405; Raymond v. Sellick, 10 dnin. 485; Dodd v. Denny, 6 Oregon 
 156. And the legal intendment that the instrument is payable on 
 demand cannot be changed hy parol proof. Roberts v. Snow, 23 
 Neb. 425; Thompson v. Ketcham, S Johns. 146; Sheldon v. ITeaton, 
 SS Hun, 535; Gaylorcl v. Van Loan, 15 Wend. 308; McLeod r. Hun- 
 ter, 29 Misc. 558 (a case arising mider the statute) ; Koehning v. 
 Muemminghoff, 61 Mo. 403 ; Self v. King, 28 Te.x. 552. The words 
 " on demand" may be added without avoiding the instrument. 
 Byles on Bills, 210. 
 
 (c) Berry v. Robinson, 9 Johns. 121 ; Leavitt, v. Putnam, 1 
 Sandf. 199; Bassonhorst v. Wilby, 45 Ohio St. 330; Light v. Kings- 
 bury, 50 Mo. 331; Smith v. Caro, 9 Oregon 280; Bemis v. McKenzle, 
 13 Fla. 553. It is commonly said that the indorsement of a bill or 
 note which is overdue is equivalent to drawing a new instrument 
 payable at sight. Bishop v. Dexter, 2 Conn. 419; Mudd v. Harper, 
 1 Md. 110. In such cases presentment for payment must be made 
 and notice of dishonor given, as in other instances of instruments 
 payable on demand. Berry v. Rnbinson, 9 Johns. 121; Van Iloosen 
 V. Van Alstyne, 9 Wend. 79; Poole r. Tolleson, 1 McCord, 200; 
 Patterson v. Todd, 18 Pa. St. 420; Rdsson v. Carroll, 90 Tenn. 90; 
 Brown V. Hull, 33 Gratt. 23. Whei-e a note, negotiated before due, 
 is further negotiated after it has been dishonored, the holder takes 
 the legal title, and can maintain a suit upon it in his own name, in 
 the same manner as if he had received it before it was due. French 
 V. Jarvis, 29 Conn. 353. 
 
 § 27. When payable to order.— The instrument is pay- 
 able to order where it is drawn payable to the order oi a 
 specified person or to him or his order (a). It may be drawn 
 payable to the order of : 
 
 1. A pa)'ee who is not maker, drawer (ir drawee; or 
 
 2. The drawer or maker (b) ; ur 
 
 3. The drawee; or 
 
 V 
 
FORM AND INTERPRETATION. I9 
 
 4. Two or more payees jointly; or 
 
 5. One or some of several payees (c) ; or 
 
 6. The holder of an office for the time being (d). 
 Where the instrument is payable to order the payee must 
 
 be named or otherwise indicated therein with reasonable 
 certainty (e). 
 
 (•a) By the rules of the law merchant an instrument payable to 
 a specified person without the addition of the word " order," or 
 other word of similar import, was not negotiable. Byles on Bills, 
 p. 83; Smith v. Kendall, 6 T. E. 123; Maule v. Crawford, 14 Hun, 
 193; Carnwright v. Gray, 127 X. Y. 92. The English Bills of Ex- 
 change Act provides that " a bill is payable to order which is 
 expressed to be so payable, or which is expressed to be payable to 
 a particular person, and does not contain words prohibiting transfer 
 or indicating an intention that it should not be transferable." But 
 this change in the law was not deemed advantageous and was not 
 adopted. 
 
 (h) A note payable to the order of the maker is not complete 
 until indorsed by him. Section 320. 
 
 (c) Illustration: A draft payable to A, B, and C, or either of 
 them, or any two of them. 
 
 (d) For example, a note payable to three persons as trustees of 
 an incorporated association, or their successors in office, is nego- 
 tiable. Davis V. Gore, 6 N. Y. 124. 
 
 (e) The payee need not be designated by name. If his identity 
 can be ascertained with certainty, it is sufficient. United States v. 
 White, 2 Hill, 59 ; Blackman v. Lehman, 63 Ala. 547. 
 
 § 28. When payable to bearer.— The instrument is 
 payable to bearer : 
 
 1. When it is expressed to be so payable; or 
 
 2. When it is payable to a person named therein or bearer 
 (a) ; or 
 
 3. When it is payable to the order of a fictitious or non- 
 existing person, and such fact was known to the person 
 making it so payable (b) ; or 
 
 4. When the name of the payee does not purport to be the 
 name of any person (c) ; or 
 
20 THE NEGOTIABLE INSTRUMENTS LAW. 
 
 5. When the only or last indorsement is an indorsement 
 in blank. 
 
 (a) Illustration: Instrument payable to "A. B., or bearer." In 
 sucli case it is negotiable by delivery, and the indorsement of A. B. 
 is not necessary to pass the title therein. See section 60. 
 
 (&) It has been held that a note made payable to the order of the 
 estate of a deceased person is a promissory note with a fictitious 
 payee, and where it has been negotiated by the maker is deemed as 
 against him to be a note payable to bearer. Lewisohn v. The Kent 
 i: Stanley Co., 87 Hun, 1'.j7. But the correctness of this view seems 
 very questionable. The ground of the rule is that, as the fictitious 
 payee cannot indorse the instrument, the drawer or maker must 
 have intended that it should be payable to bearer. But no such in- 
 tention can be properly ascribed where the instrument is drawn 
 payable to the order of an estate ; for the obvious intention is that 
 it shall be paid upon the order of the decedent's legal representa- 
 tives, and that they shall indorse the paper. Checks are frequently 
 drawn in this way, and it appears to be the understanding of the 
 business community that they require the indorsement of the ex- 
 ecutor or administrator. It is essential that the fictitious char- 
 acter of the payee should be known to the person making the in- 
 strument so payable. As said by the Court of Appeals of New York, 
 in Shipman v. Bank of the State of New York, 126 N. Y. 318, " The 
 maker's intention is the controlling consideration which determines 
 the character of such paper. It cannot be treated as payable to bearer 
 unless the maker knows the payee to be fictitious, and actually 
 intends to make the paper payable to a fictitious person." Hence, 
 if the maker or drawer supposes the payee to be an actually existing 
 person (as, for instance, where he is induced by fraud to draw the 
 instrument to the order of a fictitious person whom he supposes to 
 exist), the instrument will not be payable to bearer, and no person 
 can acquire the title thereto by delivery. And where the instru- 
 ment is a check, or a bill or note payable at a bank, the bank cannot 
 charge the same to the account of its customer, since the instru- 
 ment is not in such case payable to bearer, and the indorsement 
 is a forgery. Shipman i\ Bank of the State of New York, supra; 
 Armstrong v. Bank, 46 Ohio St. 412 ; Chisholm v. First Nat. Bank 
 of New York (Tenn.), 39 S. W. Kep. 340; Bank of England v. Vag- 
 liano [1891], App. Gas. 107. But see Glutton v. Attenborough 
 [1805], 2 Q. B. 707. 
 
 (c) For example, a check payable to " cash" or to " sundries." 
 
FORM AND INTERPRETATION. 21 
 
 See Willets v. Phoenix Bank, 2 Duer, 121; Mechanics' Bank v. 
 Stratton, 2 Keyes, 365. 
 
 § 29. Terms when sufficient. — The instrument need 
 not follow the language of this act, but any terms are suffi- 
 cient which clearly indicate an intention to conform to the 
 requirements hereof (a). 
 
 (a) It may be written in a foreign language as well as in English. 
 Debebian v. Gala, 64 Md. 262, 265. The writing may be in pencil 
 as well as in ink. Brown v. Butchers' Bank, 6 Plill, 443. As to 
 the construction of ambiguous instruments, see section 36. 
 
 § 30. Date, presumption as to.— Where the instrument 
 or an acceptance or any indorsement thereon is dated, such 
 date is deemed prima facie to be the true date of the making, 
 drawing, acceptance or indorsement, as the case may be (a). 
 
 (a) But evidence is admissible, as between the immediate parties, 
 to show a mistake in the date. Cowing v. Altman, 71 N. Y. 441. 
 If the date is an impossible one, the law will adopt the nearest day. 
 Thus, if the date is written September 31st, the true date will be 
 deemed to be September 30th. Wagner v. Kenner, 2 Rob. (La.) 
 120. 
 
 § 31. Ante-dated and post-dated.— The instrument is 
 not invalid for the reason only that it is ante-dated or post- 
 dated, provided this is not done for an illegal or fraudulent 
 purpose. The person to whom an instrument so dated is 
 delivered acquires the title thereto as of the date of deliv- 
 ery (a). 
 
 (a) A post-dated bill or check may be negotiated before the day of 
 its date. Brewster v. McCardle, 8 Wend. 478; Pasmore v. North, 
 13 East, 517. In the case last cited the payee who had negotiated 
 a post-dated bill died the day before the day of date; but it was 
 held that the indorsee had derived title through such payee, and 
 could recover of the drawer. If for the purpose of evading the 
 law, a false date is inserted in the instrument, it will be void as to 
 all persons having notice. Serle v. Norton, 9 M. & W. 309. 
 
22 THE NEGOTIABLE INSTRUMENTS LAW. 
 
 § 32. When date may be inserted. — Where an instru- 
 ment expressed to be payable at a fixed period after date 
 is issued undated, or where th6 acceptance of an instrument 
 payable at a fixed period after sight is undated, any holder 
 may insert therein the true date of issue or acceptance, and 
 the instrument shall be payable accordingly (a). The inser- 
 tion of a wrong date does not avoid the instrument in the 
 hands of a subsequent holder in due course ; but as to him, 
 the date so inserted is to be regarded as the true date (b). 
 
 (a) See next' section. 
 
 (6) Eedlich v. Doll, 54 N. Y. 238; Page v. Monell, 3 Abb. Ct. 
 App. Dec. 433 ; Mitchell v. Culver, 7 Cow. 333. 
 
 § 33. Blanks ; when may be 'filled. — Where the instru- 
 ment is wanting in any material particular, the person in 
 possession thereof has a prima facie authority to complete 
 it by filling up the blanks therein (a). And a signature 
 on a blank paper delivered by the person making the signa- 
 ture in order that the paper may be converted into a 
 negotiable instrument operates as a prima facie authority to 
 fill it up as such for any amount (&). In order, however, 
 that any such instrument, when completed, may be enforced 
 against any person who became a party thereto prior to its 
 completion, it must be filled up strictly in accordance with 
 the autliority given and within a reasonable time. But if any 
 such instrument, after completion, is negotiated* to a holder 
 in due course, it is valid and effectual for all purposes in his 
 hands, and he may enforce it as if it had been filled up 
 strictly in accordance with the authority given and within 
 a reasonable time (c). 
 
 (a) The leading authority upon this point is Russell v. Lang- 
 staffc, 2 Doug. 514. In that ease a person had indorsed his name 
 on five copperplate chocks, blank as to amounts, dates and times 
 of payment, and the holder. Galley, iilled them up as his own notes 
 
 * The word "negotiated" substituted for "negotiable" by Laws N. Y. 
 1898, c. 336. 
 
^FORM AND INTERPRETATION.\ 23 
 
 with different dates, amounts and times of payment. The indorser 
 was held liable to the plaintiff, who had discounted them.. Lord 
 Mansfield said : " The indorsement on a blank note is a letter of 
 credit for an indefinite sum. The defendant said : ' Trust Galley 
 for any amount, and I will be his security.' It does not lie in his 
 mouth to say the indorsement was not regular." See also Ovrick 
 V. Colston, 7 Graft. 189 ; Frank v. Lilienf eld, 33 Graft. 377 ; Boyd v. 
 McCann, 10 Md. 118; Elliot v. Chestnut, 30 Md. 562; Andros- 
 coggin Bank v. Kimball, 10 Cush. 373. If the place for the name 
 of the payee is left blank the holder may fill it up with his own 
 name as payee. Boyd v. McCann, 10 Md. 118. But it will be 
 noticed that the authority is only to complete the instrument, for 
 while there is an authority to fill up blanks in order to make the 
 instrument conaplete as such, there is no authority to insert a 
 special ag-reement not essential to the completeness of the instru- 
 ment. Weyerhauser v. Dunn, 100 N. Y. 150. (; ], ' 
 
 (b) It is to be observed that this rule applies only where the 
 incomplete instrument has been delivered. See next section. 
 
 (c) If the instrument be used, or the blanks filled up contrary 
 to the agreement or intention of the original parties, the maker 
 is held to any hona fide holder for value, upon the principle that 
 where one of two innocent parties must suffer by the fraud or 
 wrong of a third person the one who put it in the power of such 
 third person to commit the fraud or wrong must bear the loss. The 
 liability of the maker in such case has also, sometimes, been placed 
 upon the principle of estoppel ; he, having put his paper in circula- 
 tion, and thus invited the public to receive it of any one having 
 apparent title, is estopped to urge the actual defect of title against 
 a Una fide holder. Eedlich v. Doll, 54 N. Y. 234, 238. Where one 
 makes and delivers a promissory note, perfect in form, except that 
 a blank is left after the word " at" for the place of payment, there 
 is an implied authority for any hona fide holder to fill the blank, 
 and the insertion of a place of payment, and negotiation of the note, 
 contrary to the agreement of the original parties, does not avoid it 
 in the hands of a hona fide holder for value. {Id.) So, one who 
 intrusts another with his blank acceptance is liable to a holder for 
 value, though filled up for a sum exceeding that limited by the 
 acceptor. Van Duzer v. Howe, 21 N. Y. 531. But where the 
 amount is left blank in the body of the note, and a sum is indicated 
 in figures in the margin, the amount cannot be filled in for a larger 
 sum than that so indicated. Norwich Bank v. Hyde, 13 Conn. 284. 
 
24 THE NEGOTIABLE INSTRUMENTS LAW. 
 
 § 34. Incomplete instrument not delivered. — Where 
 an incomplete instrument has not been dehvered it will not, if 
 completed and negotiated, without authority, be a valid con- 
 tract in the hands of any holder, as against any person whose 
 signature was placed thereon before delivery (o). 
 
 (a) A negotiable instrument must be complete and perfeqt when 
 it is issued, or there must be authority reposed in some one after- 
 ward to supply anything needed to make it perfect. Sedgwick v. 
 McKim, 53 X. Y. 307, 313 ; Davis Sewing Machine Co. v. Best, 105 
 N. Y. 59, 67. And mere negligence on the part of the person sought 
 to be held liable will not be sufiBcient to entitle the holder to recover 
 of him on the instrument. Baxendale v. Bennett, L. R. 3 Q. B. 
 Div. 525. Thus, in the case cited, where a blank acceptance which 
 had been given to one person and returned by him was afterward 
 stolen from the acceptor and another person filled in his own name 
 and negotiated the bill, it was held that there could be no recovery 
 on such acceptance even by a bona fide holder for value. Barnwell, 
 L. J., said : " The defendant here has not voluntarily put into any 
 one's hands the means, or part of the means, ^or committing a 
 crime. But it is said that he had done so through negligence. I 
 confess I thinkTie has been negligent — that is to say, I think if 
 he had had this paper from a third person as a bailee bound to 
 keep it with ordinary care, he would not have done so. But then 
 this negligence is not the proximate or effective cause of the fraud. 
 A crime was necessary for its completion."? -.V't. "- 
 
 § 35. Delivery ; when effectual ; when presumed. — 
 
 E\'ery contract on a negotiable instrument is incomplete and 
 re\'ocable until deli^•er3' of the instrument for the purpose 
 (if giving effect thereto (a). As between immediate parties, 
 and as regards a remote party other than a holder in due 
 course, the delivery, in order to be effectual, must be made 
 either by or under the authority of the party making, draw- 
 ing, accepting (b) or indorsing, as the case may be; and in 
 such case the delivery may be shown to have been conditional, 
 or for a special purpose only, and not for the purpose of 
 transferring the property in the instrument. But where the 
 instrument is in the hands of a holder in due course, a valid 
 
FORM AND INTERPRETATION. 25 
 
 delivery thereof by all parties prior to him so as to make 
 them liable to him is conclusively presumed (c). And where 
 the instrument is no longer in the possession of a party 
 whose signatvire appears thereon, a valid and intentional 
 delivery by him is presumed until the contrary is prov.ed (d). 
 
 (a) Like other written contracts, a bill of exchange or promissory 
 note has no legal inception or valid existence as such until it has 
 been delivered in accordance with the purpose and intent of the 
 parties. Burson v. Huntington, 21 Mich. 416. 
 
 (h) In the North Carolina Act the word " accepting" is omitted, 
 
 (c) This provision changes the law in some of the States. In 
 some cases it has been held that an instrument in the form of a 
 negotiable promissory note, which has never been delivered by the 
 alleged maker, has no legal existence as such note, and the party 
 sought to be charged upon it may always, unless estopped by his 
 own negligence, defend successfully against it, without regard to 
 the time when or the circumstances under which it was acquired 
 by the holder. Roberts v. McGrath, 38 Wis. 52; Chipman v. 
 Tucker, 38 Wis. 43; Griffiths v. Kellogg, 39 Wis. 290; Burson v. 
 Huntington, 21 Mich. 416. This change, like some others made by 
 the act, is in the direction of facilitating the circulation of com- 
 mercial paper. The provision does not apply, however, in the case 
 of an incomplete instrument completed and negotiated without 
 authority. See section 34. 
 
 (d) Possession of the instrument is prima facie evidence of title. 
 Newcombe v. Fox, 1 App. Div. 389. 
 
 § 36. Construction where instrument is ambiguous. — 
 
 Where the language of the instrument is ambiguous, or 
 there are omissions therein, the following rules of construc- 
 tion apply : 
 
 1. Where the sum payable is expressed in words and also 
 in figures and there is a discrepancy between the two, the 
 sum denoted by the words is the sum payable; but if the 
 words are ambiguous or uncertain, references may be had 
 to the figures to fix the amount (a) ; 
 
 2. Where the instrument provides for the payment of 
 interest, without specifying the date from which interest is 
 
26 THE NEGOTIABLE INSTRUMENTS LAW. 
 
 to run, the interest runs from the date of the instrument, and 
 if the instrument is undated, from the issue thereof ; 
 
 3. Where the instrument is not dated, it will be considered 
 to be dated as of the time it was issued (fo) ; 
 
 4. Where there is a conflict between the written and 
 printed provisions of the instrument, the written provisions 
 prevail (c) ; 
 
 5. Where the instrument is so ambiguous that there is 
 doubt whether it is a bill or note, the holder may treat it 
 as either at his election [d) ; 
 
 6. Where a signature is so placed upon the instrument 
 that it is not clear in what capacity the person making the 
 same 'intended to sign, he is to be deemed an indorser (c) ; 
 
 7. Where an instrument__containing the words "I promise 
 to pay" is signed by two or more persons, they are deemed 
 to be jointly and severally liable thereon (/). 
 
 (o) The figures in the margin of a bill or note are regarded as 
 simply a memorandum or abridgement for convenience of refer- 
 ence, and form no part of the instrument. Smith v. Smith, 1 R. I. 
 388. 
 
 (b) Knisley v. Sampson, 100 111. 54. 
 
 (c) But this rule does not permit of the rejection of any of the 
 printed matter which l.)y any reasonable construction may be recon- 
 ciled with the written part, ililler v. Hannibal & St. Jo. R. R. Co., 
 90 N. Y. 430; Magee v. Lovell, L. R. 9 C. P. 107; Joyce v. Realm 
 Ins. Co. L. R., 7 Q. B. 580. 
 
 (d) Heise v. Bumpass, 40 Ark. 547. Where the instrument ran 
 " On demand, I promise to pay A. B., or bearer, the sum of fifteen 
 pounds, value received," and was addressed in the margin to one 
 J. Bell, who wrote upon it, " Accepted, J. Bell," it was considered 
 to be in effect the note of Bell, as it contained a promise to pay, 
 although, in terms, it was an acceptance. Block v. Bell, 1 M. & R. 
 149. Wliere the instrument was in the following form: "London, 
 August 5, ls;]0. Three months after date I promise to pay Mr. 
 John Bury or order forty-four pounds, eleven shillings, and five 
 pence, value received, John Bury,"' and was addressed in the lower 
 left4iand corner " J. B. Grutherot, 35 Montague Place, Bedford 
 Place," and Grutherot's name was written across the face as an ac- 
 ceptance, and Bury's name across the back as an indorsement, it was 
 
FORM AND INTERPRETATION. ' 2/ 
 
 held that Bury might be held either as the drawer of the bill against 
 Grutherot, or as the maker of the note, and therefore was bound 
 without notice of dishonor. Edis v. Bury, 6 Barn. & Ores. 433. In 
 another case the instrument ran : " Two months after date I prom- 
 ise to pay A. B. or order ninety-nine pounds, IT. Oliver,'' and was 
 addressed to J. E. Oliver and accepted by him. The court said: 
 " It is not unjust to presume that it was drawn in this form for the 
 purpose of suing upon it either as a promissory note or as a bill of 
 exchange." Lloyd v. Oliver, 18 Q. B. 471. 
 
 (e) Eor example, if a person should write his name across the 
 face of a note, he would under this provision be deemed an indorser. 
 There are some decisions which hold that in such case he would be 
 deemed a joint maker. It is, perhaps, not very important which 
 view is adopted, so that the rule upon the subject is fixed and cer- 
 tain. Throughout the act it has been the policy to make all irreg- 
 ular parties indorsers. See section 114. 
 
 (f) Monson v. Drakeley, 40 Conn. 559; Solomon v. Hopkins, 61 
 Conn. 4Y; Dart v. Sherwood, 7 Wis. 523. In the Wisconsin Act 
 another subdivision is added as follows : " 8. Where several writ- 
 ings are executed at or about the same time, as parts of the same 
 transaction intended to accomplish the same object, they may be 
 construed as one and the same instrument as to all parties having 
 notice thereof." 
 
 § 37. Liability of person signing in trade or assumed 
 name. — No person is liable on the instrument whose signa- 
 ture does not appear thereon (a), except as herein otherwise 
 expressly provided. But one who signs in a trade or as- 
 sumed name will be liable to the same extent as if he had 
 signed in his own name (b). 
 
 (a) Persons dealing with negotiable instruments are presumed 
 to take them on the credit of the parties whose names appear upon 
 them, and a person not a party cannot be charged upon proof that 
 the ostensible party signed or indorsed as his agent. Manu- 
 facturers' Etc. Bank v. Love, 13 App. Div. 561; Briggs v. Par- 
 tridge, 64 N. Y. 363. 
 
 (b) A person may become a party to a bill or note by any mark 
 or designation he chooses to adopt, provided it be used as a sub- 
 stitute for his name and he intends to be bound by it. De Witt v. 
 
28 THE NEGOTIABLE INSTRUMENTS LAW. 
 
 Walton, 9 N. Y. 574; Brown v. Butchers' & Drovers' Bank, 6 
 Hill, 443. 
 
 § 38. Signature by agent ; authority ; how shown. — 
 
 The signature of any party may be made by a duly author- 
 ized agent. No particular form of appointment is necessary 
 for this purpose; and the authority of the agent may be 
 established as in other cases of agency. 
 
 § 39. Liability of person signing as agent, etc.— 
 
 Where the instrument contains or a person adds to his signa- 
 ture words indicating that he signs for or on behalf of a 
 principal, or in a representative capacity, he is not liable on 
 the instrument if he was dul}- authorized (a) ; but the mere 
 addition of words describing him as an agent, or as filling a 
 representative character, without disclosing his principal, 
 does not exempt him from personal liability (b). 
 
 (a) In the original draft submitted to the Conference of Com- 
 missioners on Uniformity of Laws this section read as follows: 
 " Wliere a person adds to his signature words indicating that he 
 signs for or on behalf of a principal, or in a representative capacity, 
 he is not liable on the instrument ; but the mere addition of words 
 describing him as an agent, or as iilling a representative character, 
 does not exempt him from personal liability. In determining 
 whether a signature is that of the principal or of the agent by 
 whose hand it is written, that construction is to be adopted which 
 is most favorable to the validity of the instrument." This is the 
 English rule, and was the rule in Xew York prior to the statute. 
 Under that rule a person signing for or on behalf of a principal 
 was not liable on the insfiiimcnf, notwithstanding he had no author- 
 ity to bind his principal. There was an implied warranty on his 
 part that he possessed such authority, and if he did not he became 
 liable upon such ^varranly for the damages resulting from the 
 breach, liiller v. Eeynolds, 92 Hun, 400. But no action could be 
 maintained against him on the instrument when by its terms it 
 did not purport to bind him. And his liability upon the implied 
 warranty did not accompany the transfer of the instrument, unless 
 the claim founded upon the warranty was also assigned to the 
 person to whom the instrument was transferred. (Id.) The effect 
 
FORM AND INTERPRETATION. 29 
 
 of the section, as it now stands, is to permit the holder to sue the 
 agent on the instrument, if he was not duly authorized to sign the 
 same on behalf of the principal. 
 
 (b) Thus, he is not relieved from liability by adding the de- 
 scriptive term " trustee,'' Bank v. Looney, 99 Tenn. 278, or 
 " administrator," or " guardian," Emm v. Carroll, 1 Terger, 144 ; 
 McWherter v. Jackson, 10 Humphrey, 208; Carter v. Wolf, 1 
 Heisk, 674, or " agent," Sumwalt v. Eigeley, 20 Md. 107. Where 
 a negotiable promissory note has been given for the payment of 
 a debt contracted by a corporation, and the language of the promise 
 does not disclose the corporate obligation, and the signatures to the 
 paper are in the names of individuals, a holder, taking iona fide 
 and without notice of the circumstances of its making, is entitled 
 to hold the note as the personal undertaking of its signers, not- 
 withstanding they affix to their names the title of an office. Such 
 an affiLx will be regarded as descriptive of the persons, and not of the 
 character of the liability. Unless the promise purports to be by 
 the corporation, it is that of the persons who subscribe to it ; and 
 the fact of adding to their names an abbreviation of some official 
 title has no legal signification as qualifying their obligation, and 
 imposes no obligation upon the corporation whose officers they may 
 be. This rule is founded on the general principle that in a con- 
 tract every material thing must be definitely expressed, and not left 
 to conjecture. Unless the language creates, or fairly implies, the 
 undertaking of the corporation, or if the purpose is equivocal, the 
 obligation is that of its apparent makers. Casco National Bank v. 
 Clark, 139 N. Y. 307, 310; First Nat. Bank v. Wallis, 150 K. Y. 455. 
 
 § 40, Signature by procuration ; effect of. — A signa- 
 ture by " procuration" operates as notice that the agent 
 has but a limited authority to sign, and the principal is bound 
 only in case the agent in so signing acted within the actual 
 limits of his authority (a). 
 
 (a) The words " per procuration" have a special technical sig- 
 nificance. They are an express intimation of a special and limited 
 authority; and a person taking a bill so drawn, accepted, or 
 indorsed, is bound to inquire into the extent of the authority. 
 Byles on Bills, 33. But an indorsement by an agent " per pro" 
 which is within the powers conferred upon him is binding upon his 
 principal as against bona fide holders for value, though the agent 
 
30 THE NEGOTIABLE INSTRUMENTS LAW. 
 
 abused his authority. Bryant v. La Banque du Peuple [1893], 
 App. Cases, 170. The term is seldom, if ever, used in this country. 
 
 § 41. Effect of indorsement by infant or corporation. 
 
 — The indorsement or assignment of the instrument by a 
 corporation or by an infant passes the property therein, not- 
 withstanding that from want of capacity the corporation (a) 
 or infant (b) may incur no liability thereon. 
 
 (a) Thus, if a note should be drawn payable to the order of a 
 corporation, and the corporation should indorse the same without 
 consideration, such indorsement would pass the title to a subsequent 
 holder with notice of the facts, though the corporation would 
 not be liable to him as an indorser. See note to section 55. 
 
 (6) The statute changes the law. See Eoach v. Woodall, 91 
 Tenn. 206. The change, like others, was made to facilitate the 
 ready and safe transfer of commercial paper. 
 
 § 42. Forged signature ; effect of — Where a signature 
 is forged or made without authority of the person whose 
 signature it purports to be, it is wholly inoperative, and no 
 right to retain the instrument, or to give a discharge there- 
 for, or to enforce payment thereof against any party thereto, 
 can be acquired through or under such signature (a), unless 
 the party against whom it is sought to enforce such right is 
 precluded from setting up the forgery or want of author- 
 ity (b). 
 
 (a) Buckley v. Second Xat. Bank of Jersey City, 05 N. J. Law, 
 400; Whiteford v. Munroe, 17 Md. 135. 
 
 (I) Where the transaction is contrary to good faith and the fraud 
 affects individual interests onlj', ratification is allowed; but where 
 the fraud is of such a character as to involve a crime the adjust- 
 ment of which is forbidden by jjublie policy, the ratification of the 
 act from which it springs is not permitted. Forgery does not 
 admit of ratification. A forger docs not act on behalf of, nor pro- 
 fess to represent, the person whose handwriting he counterfeits; 
 and the subsequent adoption of the instrument cannot supply the 
 authority which the forger did not profess to have. Henry Chris- 
 
CONSIDERATION OF NEGOTIABLE INSTRUMENTS. 3 1 
 
 tian Building and Loan Association v. Walton, 181 Pa. St. 201; 
 Lyson v. Phillips, 106 Pa. St. 57. But cases sometimes arise 
 where parties are cstopi^ed to dispute the genuineness of their sig- 
 natures. Crout V. DeWolf, 1 R. I. 393. Thus, where a cus- 
 tomer has been guilty of negligence in examining the ac- 
 count and vouchers returned to him by his bank, he will not 
 be permitted to dispute the account because some of the 
 checks are forgeries. Leather Manufacturers' Nat. Bank v. Morgan, 
 117 U. S. 96. Where one whose name has been forged to a note 
 has received no benefit from the forgery, and the forger was not 
 his agent for any purpose, he is not bound, as a matter of legal 
 duty, when the note is first shown to him, to repudiate or disclaim 
 at once the genuineness of the signature. His failure to do so is 
 evidence, in the nature of an admission, which may be considered 
 as bearing upon the question whether he assumed the signature as 
 his own, but it is not conclusive. Traders' National Bank v. 
 Rogers, 167 Mass. 315. As to what conduct will amount to an 
 estoppel, see Terry v. Bissell, 26 Conn. 41. | Where one procures a 
 check by falsely pretending that he is another person, and indorses 
 it in the name of such payee, the indorsement conveys no title.^ Tal- 
 man v. Ameridan Nat. Bank (R. L), 48 Atl. Rep. 480 (a case aris- 
 ing under the statute). But see Land Etc. Co. v. Northwestern 
 Nat. Bank, 196 Pa. St. 230. 
 
 ARTICLE III.* 
 Consideration of Negotiable Instruments. 
 
 Section 50. Presumption of consideration. 
 
 51. What constitutes consideration. 
 
 52. What constitutes holder for value. 
 
 53. When lien on instrument constitutes holder for 
 
 value. 
 
 54. Effect of want of consideration. 
 
 55. Liability of accommodation party. 
 
 * The numbers of the sections of this article in other States than New 
 York are as follows : Colorado, Connecticut, District of Columbia, 
 Florida, Massachusetts, North Carolina, North Dakota, Pennsylvania, 
 Oregon, Tennessee, Utah, Virginia and Washington, 24-29; Maryland, 
 43-48; Rhode Island, 32-37; Wisconsin, 1675-50 to 1675-55. 
 
32 THE NEGOTIABLE INSTRUMENTS LAW. 
 
 § 50. Presumption of consideration. — Every negotia- 
 ble instrument is deemed prima facie to have been issued for 
 a valuable consideration ; and every person whose signature 
 appears thereon to have become a party thereto for value (a) . 
 
 (a) Kiverside Bank v. Woodhaven June. L. Co., 34 App. Div. 
 (N. Y.) 362; Delano v. Bartlett, 6 Gushing, 364; Lines 1;. Smith, 4 
 Fla. 47; Flint v. Phipps, 16 Oregon 437. This is the rule, though 
 no consideration be expressed. Wilson v. Wilson, 26 Oregon 31S. 
 See section 25. The statute makes this rule applicable only to in- 
 struments which are negotiable. But by the law merchant a bill of 
 exchange, though it lacks the words payable " to order," or to 
 "bearer," which are essential to negotiability (see sections 20, 210), 
 imports a consideration. Louisville E. R. Co. v. Caldwell, 98 Ind. 
 251 ; Cowan v. Hallock, 9 Colo. 576. The statute has not altered 
 this rule. See section 7. But as regards the presumption of con- 
 sideration in the case of non-negotiable notes, the law of New 
 York and of some of the other States has been changed. See note 
 to section 320. As to the burden of proof, see Delano v. Bartlett, 
 6 Cushing, 364. 
 
 § 51. Consideration, what constitutes. — Value is any 
 consideration sufficient to support a simple contract (a). 
 An antecedent or pre-existing debt constitutes value ; and is 
 deemed such whether the instrument is payable on demand 
 or at a future time (&). 
 
 (a) See Conover v. Stillwell, 34 N. J. Law, 54; Eaton v. Libbey, 
 165 Mass. 2ly; ^^liitney v. Clary, 145 Mass. 156; Shawmut Nat. 
 Bank. v. ]\[anson, 168 Mass. 425; Eaymond v. Sellick, 10 Conn. 480. 
 
 (&) This section makes an important change in the law of New 
 York. It abolishes the rule in the leading case of Coddington v. 
 Bay, 20 Johns. 6.']7, and the numerous cases based upon that de- 
 cision. Brewster v. Shrader, 26 Misc. (N. Y.) 480. In the case 
 last cited Werner, J., approved of the view expressed in the first 
 edition of this work, and said : " The language of this section, when 
 given its usual and ordinary signification, ought to leave no room 
 for doubt upon the subject. There is, however, such a universal 
 disposition among lawyers to look for some hidden or subtle 
 meaning in the most simple language that it has become quite the 
 
CONSIDERATION OF NEGOTIABLE INSTRUMENTS. 33 
 
 fashion to require the courts to construe statutes which to the 
 average lay mind seem to require no construction." See also 
 Brooks V. Sullivan, (N. 0.) 39 S. E. Eep. 822. The general rule 
 is that where a conveyance is made or security taken, the consid- 
 eration of which is an antecedent debt, the grantee or the person 
 taking the security is not regarded as a purchaser for a valuable 
 consideration. People's Savings Bank v. Bates, 120 U. S. 556, 
 565; Weaver v. Borden, 49 N. Y. 286; Gary v. White, 52 N. Y. 
 138 ; Wood v. Eobinson, 22 N. Y. 567 ; Mingus v. Condit, 23 N. J. 
 Eq. 313. But in the Supreme Court of the United States, and 
 in many of the State courts, a distinction has been made in 
 favor of commercial paper, and the rule adopted that a hona fide 
 holder taking a negotiable instrument in payment of, or as security 
 for, an antecedent debt, is a holder for a valuable consideration 
 entitled to protection against all the equities between the ante- 
 cedent parties. Railroad Company v. National Bank, 102 U. S. 
 14 ; Swift V. Tyson, 16 Pet. 1 ; National Revere Bank v. Morse, 163 
 Mass. 381; Roberts v. Hall, 37 Conn. 205; Bridgeport City Bank 
 V. Welch, 29 Conn. 475 ; Harrold v. Kays, 64 Mich. 439 ; Fitzgerald 
 V. Booker, 96 Mo. 661; Spencer v. Sloan, 108 Ind. 183; Quinn v. 
 Hoord, 43 Vt. 375 ; Armour v. McMichael, 36 N. J. Law, 92 ; Fisher 
 V. Fisher, 98 Mass. 303 ; Roberts v. Hall, 37 Conn. 205 ; Giovanovich 
 V. Citizens' Bank, 26 La. Ann. 15; Maitland v. Citizens' 
 Nat. Bank, 40 Md. 540; Robins v. Lair, 31 Iowa 9; Bonaud 
 V. Genesi, 42 Ga. 639. In the case of Railroad Company 
 V. National Bank, supra, the subject was exhaustively exam- 
 ined by the Supreme Court of the United States, and the rule 
 laid down that the transfer before maturity of negotiable paper 
 as security for an antecedent debt merely, without other 
 circumstances, if the paper be so indorsed that the holder becomes 
 a party to the instrument, although the contract is without express 
 agreement by the creditor for an indulgence, is not an improper 
 use of such paper, and is as much in the usual course of business 
 as its transfer in payment of such debt ; and that in either case the 
 oona fide holder is unaffected by equities or defenses between prior 
 parties of which he had no notice. This exception to the general 
 rule is based upon considerations of commercial policy, and is 
 peculiar to commercial paper. P»ior to the adoption of the statute, 
 the New York rule was well settled that one who acquired commer- 
 cial paper as collateral security for a pre-existing debt was not a 
 holder for value. Comstock v. Hier, 73 N. Y. 269; McBride v. 
 Farmers' Bank, 26 N. Y. 450; Coddington v. Bay, 20 Johns. 637. 
 
34 THE NEGOTIABLE INSTRUMENTS LAW. 
 
 This rule produced many subtle refinements, and it would be impos- 
 sible to reconcile all the decisions of the New York courts on the 
 subject. The statute changes the law in several other States, viz.: 
 Pennsylvania, Schaeffer v. Fowler, 111 Pa. St. 451; Tennessee, 
 Martin v. Bank, 94 Tenn. 17(J; Eoach v. Woodall, 91 Tenn. 206; 
 and Wisconsin, Jenkins v. Schnaub, 14 Wis. 1. For the former 
 law in the case of accommodation paper pledged as security see 
 Stephen I'. Monongahela National Bank, 88 Pa. St. 157; National 
 Union Bank v. Todd, 132 Pa. St. 312. 
 
 § 52. What constitutes holder for value. — Where 
 value has at any time been given for the instrument, the 
 holder is deemed a holder for value in respect to all parties 
 who became such prior to that time (a). 
 
 (a) If a party to a bona fide holder for value of a bill before 
 its acceptance, it is not essential to his right to enforce it against 
 a subsequent acceptor that an additional consideration should pro- 
 ceed from him to the drawee. The bill itself implies a representa- 
 tion by the drawer that the drawee is already in receipt of funds to 
 pay, and his contract is that the drawee shall accept and pay 
 according to the terms of the draft. The drawee can, of course, 
 upon presentment refuse to accept, and in that event the only 
 recourse of the holder is against the prior parties thereto ; but in 
 case the drawee does accept the bill, he becomes primarily liable 
 for its payment, not only to the indorsees, but also to the drawer 
 himself. Heuertematte v. Morris, 101 N. T. 70. 
 
 § 53- When lien on instrument constitutes holder for 
 value. — Where the holder has a lien on the instrument, 
 arising either from contract or by implication of law, he is 
 deemed a holder for value to the extent of his lien (a). 
 
 (a) Continental Nat. Bank v. Bell, 125 N. Y. 38, 42 ; Eogers v. 
 Squires, 98 N. Y. 49; Eoach r. Woodall, 91 Tenn. 206. If a nego- 
 tiable promissory note, which is without consideration as between 
 the original parties thereto, is delivered without consideration to 
 another person, who pledges it, before its maturity, as collateral 
 security for a debt of his own for a less amount than the face of 
 the note, the pledgees, if they take it without notice, are to be 
 deemed holders for value, and may maintain an action thereon for 
 
CONSIDERATION OF NEGOTIABLE INSTRUMENTS. 35 
 
 the amount due to them upon the debt which it was pledged to 
 secure. Fisher v. Fisher, 98 Mass. 303. A bank, having in 
 its possession negotiable securities of its customer, would be, 
 by virtue of its general lien, a holder for value to the extent of 
 the balance due from such customer. So, any person to whom 
 negotiable securities are pledged as collateral would be deemed a 
 holder for value to the extent of the amount due to him. But if 
 such securities should be sold to pay such balance or debt, the pur- 
 chaser, if a holder in due course within section 91, though he should 
 pay less than their face value for them, could enforce them for the 
 full amount thereof. See section 96. 
 
 § 54. Effect of want of consideration. — Absence or 
 failure of consideration is matter of defense as against any 
 person not a holder in due course (a) ; and partial failure 
 of consideration is a defense pro tanto (b), whether the 
 failure is an ascertained and liquidated amount or other- 
 wise (c). 
 
 (a) As between the immediate parties to a negotiable promissory 
 note, while the note itself is prima facie evidence of the considera- 
 tion, the question of consideration is always open; and it is 
 competent to the defendant to show, by parol, that there was no 
 sufficient consideration, or that the consideration has failed, or that 
 the paper was given for accommodation merely. Ingersoll v. 
 Martin, 58 Md. 67; Corlies v. Howe, 11 Gray, 125; Breneman v. 
 Furniss, 90 Pa. St. 186. The burden of proving the failure of con- 
 sideration is on the party alleging it. Jennison v. Stafford, 1 Gush. 
 168. Total failure of consideration does not impose upon an inno- 
 cent holder the burden of proving that he gave value for the paper. 
 Wilson V. Lazier, 11 Gratt. 477; Albrecht v. Atrimpler, 7 Pa. St. 
 476. The failure of consideration does not affect the negotiability of 
 the instrument. Dingman v. Amsink, 77 Pa. St. 114. The right 
 to interpose the defense of want of consideration is governed by 
 the lex loci. Herdic v. Eoessler, 109 K T. 127, 133, 134. Upon 
 an exchange of promissory notes, each note is a valid consideration 
 for the other, and is fully available in the hands of the holder ; and 
 the fact that one of the notes is not paid at maturity does not 
 sustain a defense of failure of consideration in an action upon the 
 other. Eice v. Grange, 131 N. Y. 149 ; Woman v. Frost, 53 IST. T. 
 422. 
 
36 THE NEGOTIABLE INSTRUMENTS LAW. 
 
 (h) Black c. RifAway, 1-"1 Mass. 80; Cline v. ^WWer. S M.l. 274; 
 Davis V. Wait, 12 Oregon 425. 
 
 (c) The rule, both in this country and in Enghand, has been that 
 whenever the defendant is entitled to go into the question of con- 
 sideration ho may set up the partial, as well as the total, want of 
 consideration. Daniel on Negotiable Instruments, § 210. But 
 it has been held in some cases that the part alleged to have failed 
 must be distinct and definite, for only a total failure or the failure 
 of a specific and ascertained part can be availed of by way of 
 defense; and in the case of an unliquidated claim the party must 
 resort to his iTdss action. Pulsifer !'. ITotchkiss, 12 Conn. 234; 
 Drew 1;. Towlc, 7 Fost. 412; Moggridge 0. Jones, 14 East. 48:"); 
 Trickey v. Larne, 6 il. & W. 27^. In other cases it is held that the 
 defendant may recoup his damages though they be unliquidated. 
 Davis V. Wait, 12 Oregon 425; Wyckhoff v. Runyon, 3.3 N. J. Law, 
 107. As to what is necessary to constitute one a holder in due 
 course, see sections 52-56. 
 
 § 55. Liability of accommodation party. — An ac- 
 commodation party is one who has signed the instrument 
 as maker, drawer, acceptor or indorser, without receiving 
 value therefor, and for the purpose of lending his name to 
 some other person (a). Such a person is liable on the instru- 
 ment to a holder for value, notwithstanding such holder 
 at the time of taking the instrument knew him to be only 
 an accommodation party (&). 
 
 (a) An accommodation note, in the strict sense, is a loan of 
 the maker's ci'cdit, without instructions as to the manner of its 
 use. Lenheim v. Wilmarding, 55 Pa. St. 73. He cannot set up 
 as a defense that it was given without consideration; for this would 
 defeat the very imrpusi- for which it was made. Carpenter r. Na- 
 tional Bank of the rioimblic, Idfi Pa. St. 170-172. In respect to 
 third persons the law considers him in the character he has assumed 
 and will not permit him to allege that the paper to which he gave 
 his name was an imposition, nor to gainsay its reality by proof 
 that it was a fiction. It shall be taken pro vrrilale that he was the 
 maker, for dp rrrifalr that was the very thing he was intended tn 
 be. Bank of Montgomery County r. Walker, 9 S. & E. 229; 
 Stephen v. Monongnhela National Bank, SS Pa. St. 157, 102-3. 
 And this is the rule though the note be pledged merely as collateral 
 
CONSIDERATION OF NEGOTIABLE INSTRUMENTS. 37 
 
 security for the debt of the payee. Lord v. Ocean Bank, 20 Pa. St. 
 .384. A mutual exchange of notes will amount to a sufficient con- 
 sideration, so that notes will not be regarded as accommodation 
 paper. Williams v. Banks, 11 Md. 198; Eice v. Grange, 131 N. Y. 
 149 ; Woman v. Frost, 52 N. Y. 422. 
 
 (h) But an accommodation indorser has the right to retract his 
 indorsement at any time before the paper is negotiated. His con- 
 sent to bo indorser is necessary to make him such. He cannot 
 be compelled to indorse whether he will or no; and as the instru- 
 ment is a mere blank piece of paper until it passes into other hands 
 for valuable consideration, it follows that he has the same right to 
 retract the indorsement already made as he had to refuse his 
 indorsement in the first instance; that is, his indorsement and his 
 continuing to be so are alike voluntary until rights arise by the 
 negotiation to third parties. Berkely v. Tinsley, 88 Va. 1001, 1004. 
 And the purchaser of an accommodation note, after its maturity, 
 gets no better nor greater right to enforce it against the maker 
 or indorser than if it were ordinary negotiable paper given for 
 value. Cottrell v. Watkins, 89 Va. 801. The provision of the 
 statute does not apply to corporations, which, as a general rule, are 
 without power to bind themselves as accommodation parties. A 
 national bank has no such power, National Bank of Commerce v. 
 Atkinson, 55 Fed. Rep. 465, 27 U. S. App. 88; nor has a State bank. 
 The Bank of Genesee v. The Patchin Bank, 13 N. Y. 309; 
 Farmers' & Mechanics' Bank v. Butchers' & Drovers' Bank, 16 
 N. Y. 125, 128 ; Morford v. The Farmers' Bank of Saratoga County, 
 26 Barb. 568; nor a manufacturing corporation, The Central Bank 
 V. the Empire Stone Dressing Co., 26 Barb. 23; The Bridgeport 
 City Bank ■;;. The Empire Stone Dressing Co., 30 Barb. 421; The 
 Farmers' & Mechanics' Bank v. The Empire Stone Dressing Co., 
 5 Bosw. 275 ; Wahlig v. The Standard Pump Manufacturing Co., 
 25 N. Y. St. Eepr. 864; Filon v. The Miller Brewing Co., 38 
 N. Y. St. Repr. 602; Monument National Bank v. Globe Works, 
 101 Mass. 57; nor a railroad company, Davis o. Old Colony Rail- 
 road Company, 131 Mass. 258 ; nor a warehousing and security com- 
 pany. The National Park Bank v. G. A. M. W. & S. Co., 116 N. Y. 
 281 ; nor a life insurance company, ^tna National Bank v. Charter 
 Oak Life Insurance Company, 50 Conn. 167; nor a turnpike com- 
 pany, Llall V. Auburn Turnpike Co., 27 Cal. 256 ; nor an oil 
 company. Culver v. Reno Real Estate Company, 91 Penn. St. 367. 
 No corporations organized under the statutes of New York are 
 authorized to bind the property of their shareholders by accom- 
 
38 THE NEGOTIABLE INSTRUMENTS LAW. 
 
 modation indorsements. Fox v. Kural Home Co., 90 Hun, 365, 
 307. But where a corporation is authorized to take a note for any 
 purpose, the presumption in regard to any note executed to it is 
 that it was executed for a legitimate purpose. Howard v. Boorman, 
 17 Wis. iyj: Lehigh Valley Coal Co. v. West Depere Agr. Works, 
 C3 Wis. 45. An indorsement by a partner of his separate accom- 
 modation note with the name of his firm is a sufficient indication 
 of the nature of the transaction to make it the duty of the bank 
 which discounts it to inquire into his authority to use the firm 
 name for the occasion, unless there are circumstances from which 
 the authority can be implied. Tanner v. Hall, 1 Pa. St. 417. 
 ' The statute does not change the rule that an accommodation 
 party has the right to determine for himself what use shall be made 
 of the instrument which he signs. He may impose material or 
 immaterial conditions and terms, and no person can enforce the 
 instrument against him who takes it in violation of such terms 
 and conditions and with notice thereof. Benjamin v. Eogers, 126 
 N. Y. 60. Thus, where the defendant indorsed a note upon the 
 condition that it should not be negotiated in New York, assigning 
 as a reason that he did not wish to be sued upon it in this State, 
 it was held that, while the restriction did not seem to be material, 
 yet the diversion was a defense to the indorser as against one who 
 was not a holder for value. United States Xat. Bank ti. Ewing, 131 
 N. Y. 506. But see Eogers v. Sipley, 35 N. J. Law, 86. 
 
 ARTICLE IV.* 
 
 Negotiation. 
 
 Section 60. What constitvttes negotiation. 
 
 61. Indorsement; how made. 
 
 62. Indorsement must be of entire instrument. 
 
 63. Kinds of indorsement. 
 
 64. Special indorsement ; indorsement in blank. 
 
 * The numbers of the sections of this article in other States than New 
 York are as follows : Colorado. Connecticut, District of Columbia, 
 Florida, Massachusetts, North Carolina, North Dakota. Pennsylvania, 
 Oregon, Tennessee, Utah, Virginia and Washington. 30-50; Maryland, 
 49-69; Rhode Island, 38-58; Wisconsin, 1676-1676-20. 
 
NEGOTIATION. 39 
 
 Section 65. Blank indorsement; how changed to special 
 indorsement. 
 
 66. When indorsement restrictive. 
 
 67. Effect of restrictive indorsement; rights of in- 
 
 dorsee. 
 
 68. Qualified indorsement. 
 
 69. Conditional indorsement. 
 
 70. Indorsement of instrument payable to bearer. 
 
 71. Indorsement where payable to two or more 
 
 persons. 
 
 72. Effect of instrument drawn or indorsed to a 
 
 person as cashier. 
 
 73. Indorsement where name is misspelled, et cetera. 
 
 74. Indorsement in representative capacity. 
 
 75. Time of indorsement; presumption. 
 
 76. Place of indorsement; presumption. 
 yj. Continuation of negotiable character. 
 
 78. Striking out indorsement. 
 
 79. Transfer without indorsement ; effect of. 
 
 80. When prior party may negotiate instrument. 
 
 § 60. What constitutes negotiation. — An instrument 
 is negotiated when it is transferred from one person to an- 
 other in such manner as to constitute the transferee the 
 holder thereof. If payable to bearer (a) it is negotiated by 
 delivery; if payable to order (6) it is negotiated by the in- 
 dorsement (c) of the holder completed by delivery (c?). 
 
 (a) As to what instruments are payable to bearer, see section 
 28. 
 
 (&) As to what instruments are payable to order, see section 2Y. 
 
 (c) An indorsement is usually written on the back of the instru- 
 ment, but the place is not essential. If the payee write his name on 
 any part of the instrument, with the intention of indorsing it, that 
 is a sufficient indorsement. Haines v. Dubois, 29 N. J. Law, 259. 
 
 ((?) The indorsement alone without delivery conveys no title. 
 Dann ■;;. ISTorris, 24 Conn. 337; Clark v. Sigourney 17 Conn. 
 
40 THE NEGOTIABLE INSTRUMENTS LAW. 
 
 520; Middleton v. Griffith, 57 N. J. Law, 442. Spencer v. 
 Carstarphen, 15. Colo. 445. As between the original parties and 
 others having notice, a conditional delivery, as well as want of 
 consideration, may be shown; and parol evidence that the delivery 
 was conditional, and of the terms of the condition, is not open to 
 the objection of varying or contradicting the written contract. 
 Higgins V. Ridgeway, 153 N. Y. 130; Persons v. Hawkins, 41 App. 
 Div. (N. Y.) 171; Simmons v. Thompson, 29 App. Div. (N. Y.) 
 559; Eicketts v. Pendleton, 14 Md. 320; MeFarland v. Sikcs, 54 
 Conn. 250. But a parol agreement, although entered into at the 
 time of making negotiable paper, that the payee will not negotiate 
 it and will renew it, etc., is inadmissible to vary the efEect of the 
 paper. Heist v. Hart, 73 Pa. St. 2s(;. So, it has been held that 
 evidence of an oral agreement that payment was not to be called 
 for until certain paintings of the maker had been sold is an attempt 
 to vary the written contract. Wooley v. Cobb, 165 Mass. 503. See 
 Woods Son Co. V. Schaefer, 173 Jlass. 443. By the statutes of 
 some of the States, notes made payable to a person named therein 
 or bearer must be indorsed to pass the legal title. Garvin v. Wis- 
 well, 83 111. 218 ; Blackman v. Lehman, 63 Ala. 547. 
 
 § 6i. Indorsement ; how made. — The indorsement must 
 be written on the instrument itself or upon a paper attached 
 thereto (a). The signature of the indorser, without ad- 
 ditional words, is a sufficient indorsement (fo). 
 
 (a) Crosby v. Roub, 16 Wis. 616; Polger v. Chase, 18 Pick. 63; 
 French v. Turner, 15 Ind. 59. The rule as commonly stated is, that 
 where there is not room on the bill, the indorsement may be on an 
 allonge. But it is not necessary that there should be a physical 
 impossibility of writing the indorsement on the instrument itself; 
 it may be on an allonc;c, whenever the necessity or convenience 
 of the parties requires it. See cases above cited. Besides, any 
 such statement of the rule would give rise to a question of fact 
 which might be determiiiod variously. But see Bishop v. Chase, 
 156 Mo. 1.''.3; Franklin v. Twogood, Iowa, 515; Peach v. Bligh, 37 
 111. 317; Haskell v. Brown, G5 111. 29; Wall v. liollenbeck, 19 Neb. 
 639. 
 
 (&) This is the customary and mercantile form of indorsement. 
 But an indorsement of a promissory note as follows, " For value 
 recei-^'cd, I hereby assign, transfer and set over to B all my right, 
 
NEGOTIATION. 4 1 
 
 title, interest and claim in the within note," passes a legal title to 
 the same and does not destroy its negotiability. Hall v. Toby, 110 
 Pa. St. 318. 
 
 § 62. Indorsement must be of entire mstrument. — 
 
 The indorsement must be an indorsement of the entire instru- 
 ment. An indorsement, which purports to transfer to the 
 indorsee a part only of the amount payable, or which pur- 
 ports to transfer the instrument to two or more indorsees 
 severally, does not operate as a negotiation of the instrument 
 (a) . But where the instrument has been paid in part, it may 
 be indorsed as to the residue (b). 
 
 (a) Eor example, where a note for $500 was indorsed, " Pay to 
 L four hundred dollars out of this note," it was held that L could 
 not recover from the maker. Lindsay v. Price, 33 Tex. 282. 
 
 (&) The indorsement of a partial payment on the instrument 
 does not render it non-negotiable. Smith v. Shippey, 182 Pa. St. 
 24. 
 
 § 63. Kinds of indorsement. — An indorsement rnay be 
 either special or in blank ; and it may also be either restrictive 
 or qualified, or conditional. 
 
 § 64. Special indorsement ; indorsement in blank. — 
 
 A special indorsement specifies the person to whom, or to 
 whose order the instrument is to be payable ; and the indorse- 
 ment of such indorsee is necessary to the further negotiation 
 of the instrument. An indorsement in blank specifies no 
 indorsee, and an instrument so indorsed is payable to bearer, 
 and may be negotiated by delivery (a). 
 
 (a) See section 28. 
 
 § 65. Blank indorsement ; how changed to special 
 indorsement. — The holder may convert a blank indorse- 
 ment into a special indorsement by writing over the signa- 
 ture of the indorser in blank any contract consistent with 
 the character of the indorsement (a). 
 
42 THE NEGOTIABLE INSTRUMENTS LAW. 
 
 (a) Beckwith v. Angell, 6 C'oiin. 317. Thus, lie might write 
 over it a special indorsement to himself or to some other person. 
 But he could not write over it a contract of guaranty; for the 
 effect of this would be to deprive the indorser of his right of notice 
 in case of non-payment. Belden v. Hann, 61 Iowa 42. Such a 
 contract would be inconsistent with the character of the indorse- 
 ment. 
 
 § 66. When indorsement restrictive. — An indorsement 
 is restrictive, which either : 
 
 1. Prohibits the further negotiation of the instrument 
 («); or 
 
 2. Constitutes the indorsee the agent of the indorser 
 
 (&):or 
 
 3. Vests the title in the indorsee in trust for or to the use 
 of some other person (c). 
 
 But the mere absence oi words implying power to negoti- 
 ate does not make an indorsement restrictive {d). 
 
 (a) " Pay Bank of A only" would be such an indorsement as 
 is meant here. 
 
 (6) The most frequent instance of this is the indorsement "for 
 collection." Such indorsement does not transfer the title to the 
 indorsee, but constitutes him merely an agent to present the paper, 
 and receive payment thereof for the account of the owner. Com- 
 mercial National Bank v. Armstrong, 14s U. S. 50; National 
 Butchers' and Drovers' Bank r. Tlubbell, 117 N. Y. 384; Armstrong 
 V. National Bank of Boyertown, 00 Ky. 431 ; Freeman's Bank v. 
 National Tube Works, 1."j1 Mass. 413 ; Sweeney v. Easter, 1 Wall. 
 173 ; Commercial National Bank v. Hamilton National Bank, 42 
 Fed. Eep. SSO; City Bank of Sherman v. Weiss, 68 Tex. 332; Cen- 
 tral R. E. Cu. V. First National Bank of L.^nichburg, 73 Ga. 384; 
 Bank of Metropolis v. First National Bank of Jersey City, 19 Fed. 
 Eep. 658 ; Blaine v. Bourne, 11 E. I. 119 ; Cecil Bank v. Farmers' 
 Bank, 22 Jlil. 148; Northwestern National Bank v. Bank of Com- 
 merce, 107 ]\Io. 402. As to the liability of an indorser to whom the- 
 instrument has been indorsed " for collection," see note to section 
 116. 
 
 (c) Lloyd V. Sisourney, r, Bing. 252; 3 M. & P. 229; Snee !'. 
 Prescott, 1 Atk. 245. Illustration: Pay A for account of B. In 
 
NEGOTIATION. 43 
 
 such case the title passes to A ; but the indorsement is restrictive to 
 the extent that it gives notice that the instrument cannot bo nego- 
 tiated by A for his own debt or for his own benefit. Hooli i;. Pratt, 
 78 N. Y. 371, 375. 
 
 (d) Thus, if the instrument is drawn to the order of A, his 
 indorsement " Pay to B" does not restrict the further negotiation 
 of the instrument, though the words " or order" are not included 
 in the indorsement. See Leavitt v. Putnam, 3 N. Y. 494. 
 
 § 67. Effect of restrictive indorsement ; rights of 
 indorsee. — A restrictive indorsement confers upon the in- 
 dorsee the right : 
 
 1. To receive payment of the instrument; 
 
 2. To bring any action thereon that the indorser could 
 bring (a); 
 
 3. To transfer his rights as such indorsee, where the form 
 of the indorsement authorizes him to do so. 
 
 But all subsequent indorsees acquire only the title of the 
 first indorsee under the restrictive indorsement. 
 
 (a) The holder of negotiable paper may sue in his own name, 
 though but an agent for others. Ward v. Tyler, 52 Pa. St. 393. 
 The statute enables a bank to sue in its own name on paper indorsed 
 to it " for collection." As to whether this could be done before the 
 statute there was some conflict in the authorities. The right is 
 sustained by Wilson v. Tolson, 79 Ga. 137 ; Cummings v. Kohn, 12 
 Mo. App. 585 ; Wintermute v. Torrent, 83 Mich. 555 ; Eegina Flour 
 Mill Co. V. Holmes, 156 Mass. 11; Spofford v. Norton, 126 Mass. 
 333 ; Whiten v. Hayden, 9 Allen, 408 ; Eoberts v. Parrish, 17 Oregon 
 583 ; McDaniel v. Pressler, 3 Wash. 636 ; Ward v. Tyler, 52 P^. St. 
 393. But in Rock County National Bank v. Hollister (21 Minn. 
 385) it was held that the provisions of the Code requiring the action 
 to be brought in the name of the real party in interest would pre- 
 vent an indorsee to whom the instrument was indorsed " for 
 collection" from maintaining the action. 
 
 § 68. Qualified indorsement* — A qualified indorsement 
 constitutes the indorser a mere assignor of the title to the 
 
 * The dash and the words " a qualified indorsement" omitted in the 
 original act through error were added by Laws N. Y. 1898, c. 336. 
 
44 THE NEGOTIABLE INSTRUMENTS LAW. 
 
 instrument. It may be made by adding to the indorser's 
 signature the words " without recourse" or any words of 
 similar import (o). Such an indorsement does not impair 
 the negotiable character of the instrument (b). 
 
 (a) Grant v. Fleming, 40 Pa. St. 140 ; Cowles v. Harts, 3 Conn. 
 522. But the words employed must clearly indicate that the in- 
 dorser intends to disclaim liability. Fassin v. Hubbard, 55 N. T. 
 470. Hence, where the payee writes above his signature an assign- 
 ment in the following form, " I hereby assign the within note to — " 
 this does not relieve him from liability as an indorser. Markey v. 
 Corey, 108 Mich. 184. The words " without recourse" fol- 
 lowing the name of the first, and preceding the name of a second, 
 indorser may, as between them, be shown by parol evidence to apply 
 to the former instead of to the latter. Corbett v. Fetzer, 47 Neb. 
 269. And this although the second indorsee took it without know- 
 ing that the limitation was applicable to the first indorser. Fitch- 
 burg Bank V. Greenwood, 2 Allen, 434. 
 
 (6) A qualified indorsement in no respects affects the negotia- 
 bility of the instrument, but simply qualifies the duties, obligations 
 and responsibilities of the indorser resulting from the general prin- 
 ciples of the law. Stewart v. Preston, 1 Fla. 10, 22. And whatever 
 interest would pass by a general or full indorsement will pass by 
 a qualified indorsement. Stewart v. Preston, 1 Fla. 10, 22 ; Epler v. 
 Funk, 8 Pa. St. 408. If the indorsement is in blank, without re- 
 course, any subsequent holder is authorized to fill up the blank 
 with his own name as indorser. Lyon v. Ewings, 17 Wis. 61. A 
 qualified indorsement is not such a departure from the usual course 
 of business as to put the transferee on inquiry as to the equities 
 between the original parties. Bisbing v. Graham, 14 Pa. St. 14; 
 Lomfix V. Picot, 2 Eand. 200. 
 
 § 69. Conditional indorsement.— Where an indorse- 
 ment is conditional, a party required to pay the instrument 
 may disregard the condition and make payment to the in- 
 dorsee or his transferee, whether the condition has been 
 fulfilled or not (a). But any person to whom an instrument 
 so indorsed is negotiated will hold the same, or the proceeds 
 thereof, subject to the rights of the person indorsing condi- 
 tionally (b). 
 
NEGOTIATION. 45 
 
 (a) The first sentence is the same as section 33 of the English 
 Bills of Exchange Act with a slight modification. In his note to 
 that section Judge Chalmers says : " This section alters the law. 
 It was formerly held that if a bill was indorsed conditionally, the 
 acceptor paid it at his peril if the condition was not fulfilled. This . 
 was hard on him. If he dishonored the bill he might be liable 
 to damages, and yet it might be impossible for him to find out if 
 the condition had been fulfilled." See Daniel on Neg. Inst., sec- 
 tions 697, 698a. There appear to be no American cases upon the 
 subject; and the only English case is Robertson v. Kensington (4 
 Taunt. 30). 
 
 (6) The rule adopted here is somewhat analogous to that which 
 gives to an indorser who has paid a note in part an equitable right 
 pro tanto in the proceeds, where the holder afterward collects the 
 whole amount of the note from the qiaker. See Madison Square 
 Bank v. Pierce, 137 N. Y. 444. 
 
 § 70. Indorsement of instrument payable to bearer, 
 
 — Where an instrument, payable to bearer, is indorsed 
 specially, it may nevertheless be further negotiated by 
 delivery (a) ; but the person indorsing specially is liable 
 as indorser to only such holders as make title through his 
 indorsement. 
 
 (a) See Johnson v. Mitchell, 50 Tex. 212; Smith v. Clarke, 
 Peake, 225; Daniel on Neg. Inst., sections 663a, 696. Where a 
 bill accepted and indorsed by the payee, in blank, was by the next 
 holder indorsed specially, it was held, that the first indorseinent 
 being in blank, the bill was afterward transferable by mere delivery, 
 and that a holder, by delivery, might strike out the special indorse- 
 ment and in a suit against the acceptors declare and recover, as the 
 indorsee of the payee. Mitchell v. Fuller, 15 Pa. St. 268. 
 
 § 71. Indorsement where payable to two or more 
 persons. — Where an instrument is payable to the order of 
 two or more payees or indorsees who are not partners, all 
 must indorse, unless the one indorsing has authority to 
 indorse for the others. 
 
46 THE NEGOTIABLE INSTRUMENTS LAW. 
 
 S 72. Effect of instrument drawn or indorsed to a 
 person as cashier. — Where an instrument is drawn or 
 indorsed to a person as " casliier" or other fiscal officer of a 
 bank or corporation, it is deemed prima facie to be payable 
 to the bank or corporation of which he is such officer; and 
 may be negotiated by either the indorsement of the bank or 
 corporation, ur the indorsement of the officer (a). 
 
 (a) It is common practice for banks to indorse in this manner 
 paper remitted for collection. The rule above stated as to indorse- 
 ments to cashiers of banks is supported by the following cases: 
 Bank of the State v. Muskingum Bank, 29 N. Y. 619 ; First Nat. 
 Bank V. Hall, 44 N. Y. 395 ; Bank of Genesee i>. Patchin Bank, 19 
 N. Y. 312 ; Folger v. Chase, IS Pick. 03 ; Farmers' etc., Bank v. 
 Troy City Bank, 1 Dough. (Mich.) 457; Watervliet Bank v. White, 
 1 Denio, COS; Lookout Bank v. Aull, 93 Tenn. 645. The commis- 
 sioners deemed it wise to extend the rule to all fiscal otEcers of cor- 
 porations. Under this provision an indorsement to the treasurer 
 of a savings bank would make the paper payable to the bank. So 
 of an indorsement to the secretary of a trust company. 
 
 § 73. Indorsement where name is misspelled, et cet- 
 era. — Where the name of a payee or indorsee is wrongly 
 designated or misspelled, he may indorse the instrument as 
 therein described, adding, if he think fit, his proper sig- 
 nature (a). 
 
 (a) Thus, one who, while carrying on business on his own ac- 
 count in the name of a company which has been incorporated, but 
 not organized, receives in payment of a debt contracted with him 
 in sucli business a promissory note payable to the order of the 
 corporation, may transfer the note by indorsing it in his own name. 
 Bryant /'. Eastman, 7 Cush. 111. Conversely, a man will be bound 
 by paper made liy him in the name he adopts in his business. Sal- 
 mon r. Hopkins, 61 Conn. 47. 
 
 § 74. Indorsement in representative capacity. — Where 
 any person is under obhgation to indorse in a representative 
 capacity, he may indorse in such terms as to negative per- 
 sonal liability (a). 
 
NEGOTIATION. 47 
 
 (a) As to the liability of executors and administrators who 
 accept or indorse, see Schmittler v. Simon, 101 N. Y. 554. 
 
 § 75. Time of indorsement ; presumption. — Except 
 where an indorsement bears date after the maturity of the 
 instrument, every negotiation is deemed prima facie to have 
 been effected before the instrument was overdue (a). 
 
 (a) Mason v. Noonan, 7 Wis. 609. If the defendant alleges that 
 the paper was indorsed after it was due, the burden of proof is on 
 him to show it. White v. Camp., 1 Fla. 94. This rule is important 
 because that, in order to constitute one a holder in due course, he 
 must have taken the instrument before it was overdue. See sec- 
 tion 91. The indorsement of an overdue note cannot relate back 
 to the date of the note; as a new and independent contract, it 
 talves effect from the time it is made, and must be determined by 
 the laws then in force and the circumstances then existing. Brown 
 V. Hull, 33 Graft. 23, 30. 
 
 § 76. Place of indorsement ; presumption. — Except 
 where the contrary appears every indorsement is presumed 
 prima facie to have been made at the place where the instru- 
 ment is dated (a). 
 
 (a) As an indorsement is not merely a transfer of the instrument, 
 but is a new and substantive contract embodying in itself all the 
 terms of the instrument, the place where it was made often be- 
 comes of importance. See Ingalls v. Lee, 9 Barb. 947; Brown v. 
 Hull, 33 Graft. 27, 29; Smith v. Caro, 9 Oregon 278; Bank of 
 British N. Am. v. Ellis, 6 Sawyer, 98 ; Freese v. Brownell, 35 N. J. 
 Law 285. For example, an indorsement in Massachusetts of a 
 note executed and payable in New York is a Massachusetts con- 
 tract, and governed by the law of that State. Glidden v. Cham- 
 berlin, 167 Mass. 486. 
 
 § 77. Continuation of negotiable character. — An in- 
 strument negotiable in its origin continues to be negotiable 
 until it has been restrictively indorsed or discharged by 
 payment or otherwise (a). 
 
48 THE NEGOTIABLE INSTRUMENTS LAW. 
 
 (a) Cumberland Bank v. Hann, 3 Ilarr. (N. J.) 222. The law is j j 
 perfectly well settled that a note or bill negotiable in form is nego-. / 
 tiable as well after as before it becomes due. National Bank of/ 
 Washington v. Texas, 20 Wall. 72. McSherry v. Brooks, 4G Md. 
 103, 118; French v. Jarvis, 29 Conn. 347; Adair v. Lenox, 15 
 Oregon 489. But the rights, duties and obligations of the parties 
 are by no means the same. The instrument becomes, according to 
 legal effect, payable on demand, so far as the indorser is concerned; 
 and presentment for payment must be made within a reasonable 
 time, and due notice of the dishonor given to the indorser. Brown 
 V. Hull, 33 Gratt. 23, 28; Berry v. Robinson, 9 Johns. 121; Van 
 Hoosen V. Van Alstyne, 3 Wend. 79; Poole v. ToUeson, 1 McCord, 
 200; Patterson i'. Todd, is Pa. St. 42<!: Rosson v. Carroll, 90 Tenn. 
 But if the paper was presented at maturity and notice of dishonor 
 given to prior parties it is not necessary that the indorsee after 
 maturity should, in order to hold them, present the paper again and 
 give them then notice of dishonor; for the original demand and 
 notice were to the benefit of all subsequent holders. French v. Jar- 
 vis, 29 Conn. 347. As to the discharge of negotiable instruments, 
 see sections 200-206. 
 
 § 78. Striking out indorsement. — The holder may at 
 
 any time strike out any indorsement which is not necessary 
 
 to his title (a). The indorser whose indorsement is struck 
 
 out, and all indorsers subsequent to him, are thereby relieved 
 
 ■ from liability on the instrument. 
 
 (a) He may strike out all intervening indorsements, and aver 
 that the first blank indorser indorsed immediately to himself. 
 B,yles on Bills, 149; Preston v. Mann, '2Ct Conn. 127; Bank of Amer- 
 ica 1'. Senior, 11 R. I. ;^)7(!. This may be done at the trial, and after 
 the plaintiff has finished his case. Mayer v. Jadis, 1 M. & Rob. 
 247. See also Morris v. Cmle, 57 Tex. 337; Rand v. Dovey, 83 
 Pa. St. 281; Merz v. Kaiser, 20 La. Ann. 379; Vanarsdale v. Hax, 
 107 Fed. Rep. 878. 
 
 § 79. Transfer without indorsement ; effect of. — 
 
 Where the holder of an instrument payable to his order 
 transfers it for value without indorsing it, the transfer vests 
 in the transferee such title as the transferrer had therein, and 
 
RIGHTS OF HOLDER. 49 
 
 the transferee acquires, in addition, the right to have the 
 indorsement of the transferrer (a). But for the purpose of 
 determining whether the transferee is a holder in due course, 
 the negotiation takes effect as of the time when the indorse- 
 ment is actuaUy made (b). 
 
 (a) Simpson v. Hall, 47 Conn. 417. Thus, the purchaser of a 
 certified check, payable to order, -who obtains title without the in- 
 dorsement of the payee, holds it subject to all equities between the 
 original parties, although he paid full consideration, without notice. 
 Goshen National Bank v. Bingham, 118 N. Y. 349 ; Jenkinson v. 
 Wilkinson, 110 N. C. 532. And an intention on the part of the 
 payee and transferee to have the paper indorsed is not sufficient, 
 at least in the absence of an express agreement to indorse. It is 
 the act of indorsement, not the intention, which negotiates the 
 instrument. Goshen National Bank v. Bingham, supra. 
 
 (6) An indorsement after notice of a defense does not relate back 
 to the transfer, so as to cut ofE intervening rights and remedies. 
 (Id.) But in Beard v. Dedolph (29 Wis. 136) it was held that the 
 holder is protected against everything subsequent to delivery, the 
 indorsement being held to relate back to the time of delivery as to 
 any equity outside of the note itself. 
 
 § 8o. When prior party may negotiate instrument.^ 
 
 Where an instrument is negotiated back to a prior party, 
 such party may, subject to the provisions of this act, reissue 
 and further negotiate the same. But he is not entitled to 
 enforce payment thereof against any intervening party to 
 whom he was personally liable. 
 
 ARTICLE v.* 
 
 Rights of Holder. 
 
 Section 90. Right of holder to sue ; payment. 
 
 91. What constitutes a holder in due course. 
 
 * The numbers of the sections of this article in other States than New 
 York are as follows : Colorado, Connecticut, District of Columbia, 
 Florida, Massachusetts, North Carolina, North Dakota, Pennsylvania, 
 Oregon, Tennessee, Utah, Virginia and Washington, 51-59; Maryland, 
 70-78; Rhode Island, 59-67; Wisconsin, 1676-21-1676-29. 
 
50 THE NEGOTIABLE INSTRUMENTS LAW. 
 
 Section 92. When person not deemed holder in due course. 
 
 93. Notice before full amount paid. 
 
 94. When title defective. 
 
 95. AVhat constitutes notice of defect. 
 
 96. Rights of holder in due course. 
 
 97. When subject to original defenses. 
 
 98. Who deemed holder in due course. 
 
 § 90. Right of holder to sue ; payment. — The holder 
 of a negotiable instrument may sue thereon in his own name 
 ( a) ; and payment to him in due course discharges the instru- 
 ment (b). 
 
 (a) This applies to a holder to whom the instrument is indorsed 
 restrictively. See section 07 and note. Where the plaintifi is the 
 payee, the production of the paper is sufficient. Williams v. Holt, 
 170 Mass. 0.51. And where the instrument is payable to bearer, or, 
 if payable to order, is indorsed in blank, possession is sufficient evi- 
 dence of title on which to maintain the action. Xeweomb v. Fox, 
 1 App. Div. 381); Weber v. Orton, 91 '^Lo. OSO. The court will never 
 inquire whether he sues for himself or as trustee for another, nor 
 into the right of possession, unless on an allegation of mala fides. 
 Ellicott V. Martin, 6 j\[d. 509. And the prima facie case made in 
 favor of the plaintiff by his possession of the instrument can not, in 
 the absence of main fides, be rebutted by evidence that the title was 
 in some other party. (Id.) As a general rule, possession by the 
 attorney for a party is possession by the party himself. Kunkel v. 
 Spooner, 9 Md. 4G2. 
 
 (b) The maker of a note, in order to avail himself of the defense 
 of payment before maturity, must show that the indorsee had prior 
 notice of the payment. Yenney v. Central City Bank, 44 Neb. 402. 
 
 § 91. What constitutes a holder in due course. — A 
 
 holder in due course is a holder who has taken the instru- 
 ment under the following conditions : 
 
 1. That it is complete and regular upon its face («) ; 
 
 2. That he became the holder of it before it was overdue 
 (&), and withoLit notice that it had been previously dis- 
 honored, if such were the fact: 
 
RIGHTS OF HOLDER. 5 1 
 
 3. That he took it in good faith and for value (c) ; 
 
 4. That at the time it was negotiated to him he had no 
 notice of any infirmity in the instrument or defect in the title 
 of the person negotiating it (d). 
 
 (a) To determine the character of an indorsee as a hona fide 
 holder for value without notice, the point of time at which he parts 
 with his money is the important fact. If the paper was then on its 
 face irregular — out of the usual course of business — the effect of 
 that knowledge on the indorsee could not be prevented by subse- 
 quently putting it in a regular shape. Losee v. Bissell, 76 Pa. St. 
 459, 462. As to incomplete instruments, and the authority to fill 
 up blanks therein, see section 33. 
 
 (&) McKim V. King, 58 Md. 502; Marsh v. Marshall, 53 Pa. St. 
 396; Davis v. Miller, 14 Gratt. 1; Cottrell v. Watkins, 89 Va. 
 801. At one time it was doubted whether the mere fact 
 that a negotiable note was overdue at the time of the trans- 
 fer was in itself sufficient to affect the title of the holder, 
 and whether it was not necessary that there should bo some- 
 thing on the face of the paper besides the day of payment to 
 show that it had been actually dishonored. This doubt was ex- 
 pressed by Lord Kenyon in Brown v. Davies, 3 T. E. 80, decided 
 in 1789 ; but Ashurst and Buller, J. J., were of opinion that the mere 
 fact of its being overdue at the time of the transfer was sufficient 
 to affect the title, and that one taking a note under such circum- 
 stances takes it upon the credit of the transferrer. Subsequently 
 in Boehm v. Sterling, 7 T. R. 423-430, Lord Kenyon gave his 
 assent to the rule thus laid down, and it has never since been ques- 
 tioned. A promissory note matures when, by its terms, the princi- 
 pal becomes due; and one who purchases it in good faith, for value, 
 before maturity, is within the protection of the law merchant, 
 although interest is overdue at the time of such purchase. Kelley 
 V. Whitney, 45 Wis. 110. But see Hart v. Stickney, 41 Wis. 630; 
 Newell V. Gregg, 51 Barb. 253. But a note payable by instal- 
 ments is overdue when the first instalment is overdue and un- 
 paid, and one who takes it afterward takes it subject to all 
 equities between the original parties. Vinton v. King, 4 Allen, 
 662. A transfer upon the day of rnaturity is before the 
 instrument is overdue; for the principal debtor has the whole of 
 that day in which to pay. Continental Nat. Bank v. Townsend, 
 87 N. Y. 8. But see Sargent v. Southgate, 5 Pick. 312; Ayer v. 
 Hutchins, 4 Mass. 370; Pine v. Smith, 11 Gray, 38. A check de- 
 
52 THE NEGOTIABLE INSTRUMENTS LAW. 
 
 posited with a bank on the day of its date can not be considered as 
 overdue when so deposited. Shawmut National Bank v. Mausou, 
 108 Mass. 425. 
 
 (c) Where the payees p'n-e the usual written direction in accom- 
 modation notes, at the foot of the note, " credit the drawer,'' and 
 the note is afterward discounted in bank, or found in the posses- 
 sion of any person not a party to the original transaction, the pre- 
 sumption is that the holder is a holder for value, and that the 
 drawer received the proceeds according to the directions so given. 
 Steckel V. Steckel, 28 Pa. St. 233, 235. As to what will constitute 
 value, see section 51. Prima facie value is presumed. See sec- 
 tion 50. 
 
 (d) As to what is necessary to constitute notice, see section 95. 
 
 § 92. When person not deemed holder in due course. 
 
 — Where an instrument payable on demand is negotiated an 
 unreasonable length of time after its issue, the holder is not 
 deemed a holder in due course (a). 
 
 (a) As to what is a reasonable time will depend upon the facts 
 of the particular case. See section 4. No absolute measure can 
 be fixed. A day or two, Field v. Nickerson, 13 Mass. 131, 137; seven 
 days, Thurston v. McKenn, 6 Mass. 42S ; and even a month. Ranger 
 V. Corj', 1 iletc. 369, is not too long ; while eight months, American 
 Bank v. Jenness, 2 Mete. 2.sS; Ayres v. Hutchins, 4 Mass. 370; 
 Nevins v. Townsend, Conn. 7 ; three months and a half, Stevens v. 
 Brice, 21 Pick. 193 ; and even two months and a half, Losee v, 
 Durkin, 7 J. E. 70; and Sice v. Cunningham, 1 Cowen, 397, 404, 
 have been deemed sufficient to discredit a note. Coupons payable 
 to bearer are, when overdue, subject to equities; they are not in 
 this respect like bank notes. McKim v. King, 58 Md. 502. 
 
 § 93. Notice before full amount paid. — Where the 
 transferee receives notice of any infirmity in the instrument 
 or defect in the title of the person negotiating the same 
 before he has paid the full atnount agreed to be paid therefor, 
 he will be deemed a holder in due course only to the extent 
 of the amount theretofore paid by him (a). 
 
 (a) Dresser v. Missouri Etc. E. E. Construction Co., 93 U. S. 
 
RIGHTS OF HOLDER. 53 
 
 93. The case falls within the general rule that the portion of an 
 unperformed contract which is completed after notice of a fraud 
 is not within the principle which protects a hona fide pur- 
 chaser. (Id.) 
 
 § 94. When title defective.— The title of a person who 
 negotiates an instrument is defective within the meaning of 
 this act when he obtained the instrument, or any signature 
 thereto, by fraud, duress, or force and fear, (a) or other 
 unlawful means, or for an illegal consideration, or when he 
 negotiates it in breach of faith, or under such circumstances 
 as amount to a fraud (b). 
 
 (a) Commercial paper executed under duress is void, even though 
 ■ there may be some consideration to support it. Magoon v. Eeber, 
 Y6 Wis. 392. 
 
 (6) The fraud in putting the paper into circulation must be a 
 fraud against the defendant. Kinney v. Kruse, 28 Wis. 183. Thus, 
 the fact that one who held possession of a note for the payee put 
 it in circulation in fraud of his rights is no defense in a suit by the 
 holder against the maker. (Id.) And where the fraud consists in 
 the misapplication of the proceeds received for the paper it will not 
 affect the paper in the hands of the holder, as he is not in any man- 
 ner bound to look to their application, nor responsible for the mis- 
 appropriation of them. Gray's Admr. v. Bank of Kentucky, 29 Pa. 
 St. 365. There is no distinction between obtaining a note by fraud 
 and fraudulently putting it in circulation. National Revere Bank 
 V. Morse, 163 Mass. 381, 385. In the Wisconsin Act the following 
 is added : " And the title of such person is absolutely void when 
 such instrument or signature was so procured from a person who 
 did not know the nature of the instrument and could not have 
 attained such knowledge by the use of ordinary care." 
 
 § 95. What constitutes notice of defect. — To consti- 
 tute notice of an infirmity in the instrument or defect in 
 the title of the person negotiating the same, the person to 
 whom it is negotiated must have had actual knowledge of 
 the infirmity or defect, or knowledge of such facts that his 
 action in taking the instrument amounted to bad faith (a). 
 
a 
 
 54 THE NEGOTIABLE INSTRUMENTS LAW. 
 
 (a) The holder is not bound at his peril to be on the alert for cir- 
 cumstances which might possibly excite the suspicion of wary vigi- 
 lance ; he does not owe to the party who puts the paper afloat the 
 duty of active inquiry in order to avert the imputation of bad faith. 
 The rights of the holder are to bo determined by the simple test of 
 honesty and good faith, and not by a speculative issue as to his dili- 
 gence or negligence. The holder's rights cannot be defeated with- 
 out proof of actual notice of the defect in title or bad faith on 
 his part evidenced by circumstances. Though he may have been 
 negligent in taking the paper, and omitted precautions which 
 prudent man would have taken, nevertheless, unless he acted 7nala 
 fide, his title, according to settled doctrine, will prevail. Cheever v. 
 Pittsburgh, Shenango & Lake Erie E. K. Co., 150 N. Y. 59, 65;- 
 American Exchange National Bank v. New York Belting etc. Co., 
 1-iS X. Y. 7(15; Knox v. Eden Musee Am. Co., 148 N. Y. 454; Cana- 
 joharlo National Bank v. Diefendorf , 123 N. Y. 202 ; Vosburgh v. 
 Diefendorf, 119 N. Y. 357; Jarvis v. Manhattan Beach Co., 14S 
 N. Y. G52; Murray v. Lardner, 2 Wall. 110; Swift v. Smith, 102 
 U. S. 442 ; Belmont v. Hoge, 35 N. Y. G5 ; Welsh v. Sage, 47 N. Y. 
 143; Nat. Bank of Eepublic v. Young, 41 N. J. Eq. 531; Fifth 
 Ward Sav. Bank v. First Nat. Bank, 48 N. J. Law 513; Credit 
 Company v. Howe Machine Co., 54 Conn. 357; Ladd v. Franklin, 
 37 Conn. 64; Cn.ft's Appeal, 42 Conn. 154; Morton v. N. A. & Selma 
 Ey. Co., 70 Ala. 590; Phelan v. Moss, 67 Pa. St. 59; Moorehead .. 
 Gilmore, 77 Pa. St. 113; Second National Bank v. Morgan, 165 
 Pa. St. 199; Frank v. Lilienfeld, 33 Cratt. 377. While gross care- 
 lessness will not, as a matter of law, defeat title in a purchaser for 
 value, it may constitute evidence of bad faith. Canajoharie Na- 
 tional Bank V. Diefendorf, 123 N. Y. 191. The payment of viilue 
 is a circumstance to be taken into account, with other facts, in 
 determining the good faith of the purchaser, but it is not con- 
 clusive. Cunningham v. Scott, 90 Ilun, 410, 411. And while the 
 mere fact that paper has been purchased at a discount will not, 
 ordinarily, be evidence of bad faith, yet where the discount is very 
 large, that circumstances may be considered, in connection with 
 other facts, in determining the question of the purchaser's good 
 faith. Williams v. Huntington, 08 Md. 590. 
 
 The mere fact that the holder for value of a promissory note 
 made by a third party rei-eives it from a person engaged in the 
 note-brokerage business, as collateral security for a loan to such 
 broker, is not sufficient to raise a doubt as to the authority of the 
 broker to so deal with the note. American Ex. Nat. Bank v. New 
 
RIGHTS OF HOLDER. 55 
 
 York Belting and Packing Company, 148 N. Y. 698. And a bank 
 has a right to assume, as to notes offered to it, whether for discount 
 or as collateral security, by a customer who has an account with it, 
 and who is in the habit of borrowing money from it, that the cus- 
 tomer is acting in good faith and within his lawful rights ; and the 
 fact that the customer is engaged in the business of note-brokerage 
 is not enough to deprive the bank of the right to indulge in such 
 assumption. (Id.) The fraudulent misappropriation by the 
 broker of the proceeds of discount is not sufficient to put the holder 
 to the proof of his bona fides. Sloan v. The Union Banking Com- 
 pany, 67 Pa. St. 470. 
 
 One who receives the notes of a corporation from one of its 
 officers in payment of, or as security for, a personal debt of such 
 officer does so at his peril. Prima facie the act is unlawful, and, 
 unless actually authorized, the purchaser will be deemed to have ! 
 taken them with notice of the rights of the corporation. Wilson v. 
 Metropolitan Ry. Co., 120 N. Y. 145, 150. And where the maker 
 of a note, which is payable to his order, and purports to be indorsed 
 by a corporation, procures it to be discounted for his own benefit, 
 this of itself, if unexplained, is notice that the indorsement is not 
 made in the usual course of business, but is for the accommodation 
 of the maker. National Park Bank v. German-American Mutual 
 Warehousing and Security Company, 116 N. Y. 281. 
 
 § 96. Rights of holder in due course. — A holder (a) 
 in due course holds the instrument free from any defect of 
 title of prior parties and free from defenses available to prior 
 parties among themselves, (b) and may enforce payment 
 of the instrument for the full amount thereof (c) against all 
 parties liable thereon (d). 
 
 (a) The payee will be protected as a hona fide holder to the same 
 extent and under like conditions. as an indorsee. Lookout Bank v. 
 Aull, 93 Tenn. 645. 
 
 (6) As this provision is general, and the statute provides for no 
 exceptions, it makes a change in the law of many States. For ex- 
 ample, it was formerly held in some States that a note given in a 
 gambling transaction, though negotiable in form, was void in the 
 hands of an innocent holder for value. Harper v. Young, 112 
 Pa. St. 419; Emerson v. Townsend, 73 Md. 224; Snoddy v. Bank, 
 
56 THE NEGOTIABLE INSTRUMENTS LAW. 
 
 88 Tenn. 573. And in some States a similar rule obtained in the 
 case of notes tainted with usury. (As to the effect of the Tennessee 
 Statutes see Bradshaw t-. Van Valkenberg, 97 Tenn. 316, 320.) So 
 of notes obtained from the maker by fraud. Lowers v. Thomas, 02 
 Wis. 480; Walker v. Ebert, 29 Wis. 194; Foster v. McKinuon, 
 L. K. 4 C. P. 704. But probably none of these defenses are good 
 under the statute. The change was made to facilitate the circu- 
 lation of commercial paper. In Wirt v. Stubblefield, 17 App. Cas. 
 D. C'. 2s;j, it was held that under the Xegotiable Instruments Law 
 a bona fide holder may enforce a promissory note against the maker, 
 even though the note ■(\as given for a gambling debt, and that this 
 statute has repealed the statutes of 16 Car. 2 Ch. 7 and 9 Anne, 
 Ch. 14, which were in force in the District of Columbia. In the 
 course of the opinion it was said by Alvey, C. J. : " We know, 
 moreover, that the great and leading object of the act, not only 
 with Congress, but with the large number of the principal com- 
 mercial States of the Union that have adopted it, has been to estab- 
 lish a uniform system of law to govern negotiable instruments 
 wherever they might circulate or be negotiated. It was not only 
 uniformity of rules and principles that was designed, but to em- 
 body in a codified form, as fully as possible, all the law upon the 
 subject, to avoid conflict of decisions, and the effect of mere local 
 laws and usages that have heretofore prevailed. The great object 
 sought to be accomplished by the enactment of the statute, to 
 free the negotiable instrument, as far as possible, from all latent 
 or local infirmities that would otherwise inhere in it to the, 
 , prejudice and disappointment of innocent holders as against all the 
 parties to the instrument professedly bound thereby. This clearly 
 could not be effected so long as the instrument was rendered abso- 
 lutely null and void by local statute, as against the original maker 
 or acceptor, as is the case by the operation, indeed, by the express 
 provision, of the statutes of Charles and Anne."' It is to be hoped 
 that other courts having to construe the act will take an equally 
 liberal and enlightened view. For the former rule in Pennsylvania 
 in such cases see iS^orthern Xat. Bank v. Arnold, 187 Pa. St. 350. 
 
 (c) This is the rule of the Supreme Court of the United States. 
 Ci-nmwcll V. Ciiunty of Sac, 96 U. S. CO. There is considerable 
 conflict in the decisions of the State courts. In the case cited the 
 Supreme Court said : " We are of opinion that a purchaser of a 
 negotiable security before maturity, in cases where he is not per- 
 sonally chargeable with fraud, is entitled to recover its full amount 
 against its maker, though he may have paid less than its par value. 
 
RIGHTS OF HOLDER. 57. 
 
 whatever may have been its original infirmity. We are aware of 
 numerous decisions in conflict witli this view of the law; but we 
 think the sounder rule, and the one in consonance with the com- 
 mon understanding and usage of commerce, is that the purchaser, 
 at whatever price, takes the benefit of the entire obligation of the 
 maker. Public securities and those of private corporations are 
 constantly fluctuating in price in the market, one day being above 
 par and the next below it, and often passing within short periods 
 from one-half of their nominal to their full value. Indeed, all sales 
 of such securities are made with reference to prices current in the 
 market, and not with reference to their par value. It would intro- 
 duce, therefore, inconceivable confusion if iona fide purchasers in 
 the market were restricted in their claims upon such securities to 
 the sums they had paid for them. This rule in no respect im- 
 pinges upon the doctrine that one who makes a loan upon such 
 paper, or takes it as collateral security for a precedent debt, may 
 be limited in his recovery to the amount advanced or secured." 
 See also Birrell v. Dickerson, 64 Conn. 61 ; Rowland v. Fowler, 47 
 Conn. 349; Williams v. Huntington, 68 Md. 590; Moore v. Baird, 
 30 Pa. 136. The statute changes the rule in New York. Harger v. 
 Wilson, 63 Barb. 237; Huff v. Wagner, 63 Barb. 230; Todd v. Shel- 
 bourne, 8 Hun, 512. See also Holcomb v. Wyckoff, 35 N. J. Law 
 38 ; Bramhall v. Atlantic National Bank, 36 N. J. Law 243 ; Oppen- 
 heimer v. Farmers' and Mechanics' Bank, 97 Tenn. 19. But where 
 the note has been taken as collateral security, the pledgee can re- 
 cover only to the extent of the debt due him, where the pledgor has 
 no right to recover at all. Chicopee Bank v. Chapin, S Mete. 40. 
 See Sec. 53. For cases where the purchaser has paid only part of 
 the amount agreed to be paid before receiving notice, see section 93. 
 (d) -In the Wisconsin Act the following is added: "Except as 
 provided in sections 1944 and 1945 of these statutes, relating to 
 insurance premiums, and also in cases where the title of the person 
 negotiating such instrument is void under the provision of section 
 1676-25 of this act." 
 
 § 97. When subject to original defenses.— -In the 
 
 hands of any holder other than a holder in due course, a ne- 
 gotiable instrument is subject to the same defenses as if it 
 were non-negotiable (a). But a holder who derives his title 
 through a holder in due course, and who is not himself a 
 party to any fraud or illegality affecting the instrument, has 
 
58 THE NEGOTIABLE INSTRUMENTS LAW. 
 
 all the rights of such former holder in respect of all parties 
 prior to the latter (b). 
 
 (a) It was not deemed expedient to make provision as to what 
 equities the transferee will be subject to; for the matter may be 
 affected by the statutes of the various States relating to set-ofE 
 and counter-claim. In an act designed to be uniform in the 
 various States, no more can be done than fix the rights of holders 
 in due course. On the question whether only such equities may 
 be asserted as attach to the bill, or whether equities arising out 
 of collateral matters may also be asserted, the decisions are conflict- 
 ing. In England it was decided in Burroughs v. Moss, 10 
 Barn & Cress. 558, that the indorsee of an overdue bill is liable 
 to such equities only as attach on the bill or note itself, and not to 
 claims arising out of collateral matters, such as a general set-ofE is. 
 This is a leading case, and has since been uniformly followed in 
 that country. Stein v. Yglesias, 1 Crom. Mees. & Ros. 565; 
 Whitehead v. Walker, 10 Mees. & Welsh. 696. See also Hughes v. 
 Large, 2 Pa. St. lO-'r, Long r. Ehawn, 75 Pa. St. 12S; Young v. 
 Shriner, 8(1 Pa. St. 4r.:j ; Davis v. Miller, 14 Gratt. 1; Kilcrease v. 
 White, 6 Fla. 45; Cumberland Bank v. Haun., 3 Harrison, 223; 
 Chandler r. Drew, N. H. 40!) ; Robertson v. Breedlone, 7 Porter, 
 541; Tuscumbia, Etc., R. R. Co. et al. v. Rhodes, 8 Ala. 206-224; 
 Robinson r. Lymon, 10 Conn. 31; Steadman v. Jilman, Id., 56; 
 Adair v. Lenox, 15 Oregon, 489. A person to whom the instrument 
 is transferred as a gift takes it subject to all equities then existing 
 between the original parties, but not subject to those which arise 
 thereafter. First Xat. Bank of Chaniplain v. Wood, 128 N. Y. 35; 
 Baxter v. Little, 6 Met. 7. 
 
 (b) "NMienever negotiable paper has passed into the hands of a 
 party unaffected by previous infirmities its character as an available 
 security is established, and its holder can transfer it to others with 
 the lil<e immunity. Cover v. ilyers, 75 Md. 406. The principle 
 is, that the promise being good to the prior indorsee or holder, free 
 from objection on the ground of fraudulent or illegal considera- 
 tion, he has the power of transferring it to others, with the same 
 immunity, as an incident to the legal right which he had acquired 
 in the instrument. Kinney v. Kruse, 28 Wis. 183, 190-191. See 
 also Boyd r. ilcCann, 10 Md. 118. Thus, if A gives to B his note, 
 and C becomes the holder thereof in due course, any subsequent 
 holder could stand on C's title and enforce the note against A, 
 though before taking the same he had notice of a defense which A 
 
RIGHTS OF HOLDER. 59 
 
 had to the note as against B. But if, in the case supposed, the note 
 should be indorsed by C to D, and by the latter to E, and by him to 
 F, under circumstances which would give D a defense as a party 
 thereto, then if F had notice of the equities of both A and D he 
 could enforce the note against A, but not against D. In the Wis- 
 consin Act the word " duress" is inserted after the word " fraud" in 
 the second sentence, and " such holder" is substituted for " the 
 latter." 
 
 §98. Who deemed holder in due course. — Every 
 holder is deemed priina facie to be a holder in due course 
 (a)j but when it is shown that the title of any person who 
 has negotiated the instrument was defective, the burden 
 is on the holder to prove that he or some person under whom 
 he claims acquired the title as a holder in due course (&). 
 But the last-mentioned rule does not apply in favor of a 
 party who became bound on the instrument prior to the 
 acquisition of such defective title (c). 
 
 (a) The presumption is that the indorsee of negotiable paper 
 received it bona fide and for value. Gray's Admr. v. Bank of Ken- 
 tucky, 29 Pa. St. 365 ; Wilson v. Lazier, 11 Gratt. 47Y. 
 
 (b) The holder may make out his title by presumption until 
 it is impeached by evidence showing the paper had a fraudulent 
 or illegal inception. When this is done he can no longer rest upon 
 presumption, but it is incumbent upon him to show the circum- 
 stances under which it came into his possession, and that he has 
 acted in good faith. Canajoharie National Bank v. Diefendorf, 
 123 N. Y. 191 ; Joy v. Diefendorf, 130 N. Y. 6 ; Jordan v. Grover, 
 99 Cal. 194; Market and Fulton Nat. Bank v. Sargent, 85 Me. 349; 
 Haines v. Merrill, 56 N. J. Law, 312 ; Sullivan v. Langley, 120 Mass. 
 437 ; Merchants' National Bank v. Haverhill Iron Works, 159 Mass. 
 158; Conant v. Johnston, 165 Mass. 450, 452; National Revere 
 Bank v. Morse, 163 Mass. 381, 385; Williams v. Huntington, 68 
 Md. 590 ; Griffith v. Shipley, Y4 Md. 591 ; Ellicott v. Martin, 6 Md. 
 509; Hutchinson v. Boggs & Kirk, 28 Pa. St. 294; Wilson v. Lazier, 
 11 Gratt. 477; Vathir v. Zane, 6 Gratt. 246. And where the plain- 
 tiff seeks to establish this by his own testimony, the credibility of 
 such testimony, though it is undisputed, is for the jury. Joy v. 
 Diefendorf, supra. Where negotiable securities have been stolen 
 and negotiated, the. burden is upon the holder to show that he is 
 
6o THE NEGOTIABLE INSTRUMENTS LAW. 
 
 himself a holder in due course, or that he claims under such a 
 holder; and there is no presumption that the thief negotiated the 
 securities before they became due. Northampton Nat. Bank v. 
 Kidder, 106 N. Y. 2-21 ; Hinckley v. Merchants' Nat. Bank, 131 
 Mass. 147. That the payee is described as " trustee" does not let in 
 defenses against a Ijona fide holder for value. Bank v. Looney, 
 99 Tenn. 278. As to when the question of good faith is for the 
 jury, see M. Groh's Son's Co. v. Schneider, 34 Misc. (N. T.) 195 
 (a case arising under the statute). 
 
 (c) The last sentence is necessary to qualify the general state- 
 ment. If A issues his note to B, and C gets possession of it and 
 fraudulently negotiates it to D, the fraud of C in nowise afPects A, 
 and is no defense to him when sued on the instrument by D. Thus, 
 it has been held that the fact that one who held possession of a note 
 for the payee put it in circulation in fraud of his rights is no de- 
 fense in a suit by the holder against the maker ; nor does it change 
 the burden of proof, so as to require the plaintiff to show in the 
 first instance that he is a liona fide holder for value. Kinney v. 
 Kruse, 28 Wis. 183. 
 
 ARTICLE VI.* 
 Liabilities of Parties. 
 
 Section no. Liability of maker. 
 
 111. Liability of drawer. 
 
 112. Liability of acceptor. 
 
 113. \\'hen person deemed indorser. 
 
 114. Liability of irregular indorser. 
 
 115. Warranty; where negotiation by delivery, et 
 
 cetera. 
 
 116. Liability of general indorsers. 
 
 117. Liability of indorser where paper negotiable 
 
 by deliver}^ 
 
 118. Order in which indorsers are liable. 
 
 119. Liability of agent or broker. 
 
 * The numbers of the sections of this article in other States than New 
 York are as follows : Colorado, Connecticut, District of Columbia, 
 Florida, Massachusetts, North Carolina, North Dakota, Pennsylvania, 
 Oregon, Tennessee, Utah, Virginia and Washington, 60-69; Maryland, 
 79-88; Rhode Island, 68-77; Wisconsin, 1677-1677-9. 
 
LIABILITIES OF PARTIES. 6 1 
 
 §110. Liability of maker.— The maker of a negotiable 
 instrument by making it engages that he will pay it accord;:. 
 ing to its tenor (a) ; and admits the existence of the payee 
 and his then capacity to indorse (b). 
 
 (a) The fact that the holder had other collateral securities for 
 the same debt more than sufficient to cover it, from which, however, 
 the debt had not been realized, is not a ground of defense on the 
 part of the maker. Lord ■;;. Ocean Bank, 20 Pa. St. 384. 
 
 (&) If the payee is a fictitious or non-existing person the instru- 
 ment is payable to bearer. Section 9. Where the name of the 
 payee is a trade or assumed name, and the instrument is issued for 
 value, the maker is estopped from setting up that the instrument 
 is payable to a fictitious payee, if by such averment the instrument 
 would be defeated. Jones v. Home Furnishing Co., 9 App. Div. 
 (N. Y.) 103. 
 
 § III. Liability of drawer. — The drawer by drawing 
 the instrument admits the existence of the payee and his 
 then capacity to indorse; and engages that on due present- 
 ment the instrument will be accepted and* paid, or both, 
 according to its tenor, and that if it be dishonored and the 
 necessary proceedings on dishonor be duly taken, he will 
 pay the amount thereof to the holder, or to any subsequent 
 (a) indorser who may be compelled to pay it. But the, 
 drawer may insert in the instrument an express stipulation 
 negativing or limiting his own liability to the holder. 
 
 (a) In the Colorado Act the word " subsequent" is omitted. 
 
 § 112. Liability of acceptor. — The acceptor by accept- 
 ing the instrument engages that he will pay it according to 
 the tenor of his acceptance (a) ; and admits : 
 
 I. The existence of the drawer, the genuineness of his 
 signature (b), and his capacity (c) and authority (d) to 
 draw the instrument ; and 
 
 * Error in engrossing. The word in the Commissioners' draft is 
 " or." The mistake was not corrected by Lav/s N. Y. 1898, c. 336. It 
 occurs only in the New York statute. 
 
62 THE NEGOTIABLE INSTRUMENTS LAW. 
 
 2. The existence of the payee and his then capacity to 
 indorse (c). 
 
 (a) The discounting of a bill by the drawee who has not accepted 
 it is neither payment nor a promise to pay according to its tenor 
 and effect, but puts him in the position of an indorsee for value, 
 witli right of action against drawer and indorser. Swops v. Eoss, 
 40 Pa. St. 186. 
 
 (6) National Park Bank v. Xinth National Bank, 46 N. T. 77; 
 Marine National Bank v. National City Bank, 59 N. T. 67; Bank 
 of St. Albans v. Farmers' and ilechaiiics' Bank, 10 Vt. 141; Bank 
 of U. S. I'. Banii of Georgia, 10 Wheat. 333. In Pennsylvania this 
 matter was formerly regulated by the statute of 1849. The effect 
 of that statute and the eases upon the subject was that the mere 
 acceptance or payment of forged paper was no longer of itself a bar 
 to the recovery of the money by the party paying, nor was such 
 party absolutely bound to discover and give notice of the forgery 
 on the very day of payment. All that he need do in any case was 
 to give ample notice promptly according to the circumstances and 
 tlie usage of the business, and unless the position of the party 
 receiving the money had been altei'ed for the worse in the meantime, 
 the date of notice was not material. Iron City Nat. Bank v. Fort 
 Pitt Nat. Banl%:, 1',',) Pa. St. 40, 52. As to other cases on this sub- 
 ject see People's Bank v. Franklin Bank, SS Tenn. l'99 ; First Nat. 
 Bank of Danvers v. First Nat. Bank of Salem, 151 Mass. 280; 
 Nat. Bank of North America v. Bangs, 106 Mass. 441; Ellis u. 
 Insurance Company, 4 Ohio St. fi2s ; First Nat. Bank v. Picker, 71 
 111. 439; Kouvant v. San Antonio Nat. Bajik, 63 Tex. 610; Deposit 
 Bank of Georgetown v. Fayette Nat. Bank, 90 Ky. 10. Accept- 
 ance admits the signature of the drawer, but is no proof or admis- 
 sion of the indorsement by the ]iayce, whether the bill be payable 
 to the drawer's own order or that of another person. Williams v. 
 Drexel, 14 Md. 566. And the drawee is not presumed to know the 
 handwriting in the body of the instrument. Continental Nat. Bank 
 V. Tradesman's Bank, 36 App. Div. 112; Gunston v. Heat and 
 Power Co. 181 Pa. St. 327. 
 
 (c) Thus, if the bill is drawn by a corporation, he cannot set 
 up as a defense that it was without legal capacity to draw the bill. 
 Halifax V. Lyle, 3 Welsby, H. & G. 446. So, if the bill is drawn 
 by an infant, Jones v. Darch, 4 Price, 300; Taylor v. Croker, 4 Esp. 
 187; or a married woman, Cowton v. Wickersham, 54 Pa. St. 302. 
 
 (d) The delivery of a bill or check by one person to another for 
 
LIABILITIES OF PARTIES. 6^ 
 
 value implies a representation on the part of the drawer that the 
 drawee is in funds for its payment, and the subsequent acceptance 
 of such cheek or bill constitutes an admission of the truth of the 
 representation, which the drawer is not allowed to retract. By such 
 acceptance the drawee admits the truth of the representation, and 
 having obtained a suspension of the holder's remedies against the 
 drawer, and an extension of credit by his admission, is not after- 
 ward at liberty to controvert the fact as against a hona fide holder 
 for value of the bill. Heuertematte v. Morris, 101 N. Y. 63, 70. 
 If the acceptance be for the drawer's accommodation, the acceptor 
 does not thereby become entitled to sue the drawer upon the bill; 
 but when he has paid the bill, and not before, he may recover back 
 the amount from the drawer in an action for money had and re- 
 ceived. Christian v. Keen, 80 Va. 369, 377. See also Whitwell v. 
 Brigham, 19 Pick. 117 ; Henderson v. Thornton, 37 Miss. 448 ; Suy- 
 dam V. Combs, 3 Green (N. J.), 133. 
 
 (e) Thus, he would not be permitted to show that the payee 
 at the time of the acceptance v/as a lunatic. Smith v. Marsack, 6 
 C. B. 486. 
 
 §113. When person deemed indorser. — A person 
 placing his signature upon an instrument otherwise than as 
 maker, drawer or acceptor is deemed to be an indorser, unless 
 he clearly indicates by appropriate words his intention to be 
 bound in some other capacity (a). 
 
 (a) See section 36, subdivision 6, and note. There is nothing 
 in either section to preclude a party from assuming liability such 
 as guarantor, etc. Thus, if he were to place above his signature 
 the words, " I guarantee the payment of the within note," he would 
 not be deemed an indorser but a guarantor. 
 
 § 114. Liability of irregular indorser. — Where a per- 
 son, not otherwise a party to an instrument, places thereon 
 his signature in blank before delivery, he is liable as indorser 
 in accordance with the following rules : 
 
 1. If the instrument is payable to the order of a third 
 person, he is liable to the payee and to all subsequent parties^ 
 
 2. If the instrument is payable to the order of the maker 
 
64 THE NEGOTIABLE INSTRUMENTS LAW. 
 
 or drawer, or is payable to bearer, he is Hable to all parties 
 subsequent to the maker or drawer. 
 
 3. If he signs for the accommodation of the payee he is 
 liable to all parties subsequent to the payee. 
 
 This section is intended to cover irregular indorsements. On 
 this subject tlie decisions are very conflicting. In some jurisdic- 
 tions a person placing his signature on tlie back of a note before 
 tlie payee lias indorsed was deemed a joint maker. Good v. Martin, 
 95 II. S. 93 ; National Exchange Bank v. Cumberland Lumber Co., 
 100 Tenn. 479 ; Logan v. Ogden, 101 Tenn. 392 ; Bank of Jamaica v. 
 Jefferson, 92 Tenn. .''>37 ; Melton v. Brown, 25 Fla. 461 ; Schroeder 
 r. Turner, 68 j\Id. 506. In other jurisdictions he was regarded as 
 a guarantor. In still others he was considered an indorser. And 
 those courts ^\-hich held him to be an indorser differed as to whether 
 he was a first or second indorser. Tlie rule adopted in the statute 
 is embodied in part in section 3117 of the Civil Code of 
 California, which reads: "One who indorses a negotiable in- 
 strument before it is delivered to the payee is liable to the payee 
 thereon, as an indorser.'' The California rule was adopted because 
 it is conducive to certainty, and because it appears to accord more 
 nearly with what must have been the intention of the parties. 
 When a plain man puts his signature on the back of a negotiable 
 instrument ho ordinarily understands that he is becoming liable 
 as an indorser; and if he puts it there before the instrument is 
 delivered, he usually docs so for the purpose of giving the maker 
 or ilrawer credit with the jiaycc or other person to whom it is nego- 
 tiated. The following oliscrvation in Connors v. Taylor (13 Wis. 
 224, 22:0 seems to embody much practical good sense: " Obviously, 
 a person indorsing a note before delivery thereof to the payee 
 intends rendering himself liable to the payee in some character and 
 upon some ground. lie must intend and design to secure its pay- 
 ment and t,nvo credit to the paper by placing his name upon it, even 
 in the hands of the pnycc." In many of the cases the reasoning is 
 highly technical, and the decisions are based upon considerations 
 which, in all probability, never entered the heads of the parties 
 themselves. The California Code makes no provision for a case 
 where the instrument is drawn to the order of the maker or drawer. 
 This is covered by subdivision 2, above. Subdivision 3 was added 
 to provide for a case where, the payee being unable to enforce 
 payment, there might be a question whether the indorser would be 
 liable to a person claiming under the payee. In New York prior 
 
LIABILITIES OF PARTIES. 65 
 
 to the statute a person indorsing in blank before delivery to the 
 payee was prima facie deemed to be a second indorser, and hence 
 not liable to the payee, who was supposed to be the first indorser. 
 Bacon v. Burnham, 37 N". Y. 614 ; Phelps v. Vischer, 50 N. Y. 69. 
 The same rule prevailed in Pennsylvania. Eilbert v. Finkbeiner, 68 
 Pa. St. 243; Central Nat. Bank v. Dreydoppel, 134 Pa. St. 499. 
 And in Oregon. Bearing v. Oreighton, 19 Oregon, 118; Cogswell 
 V. Playden, 5 Oregon, 22. But as the paper itself furnished only 
 prima facis evidence of this intention, it was competent to rebut 
 the presumption by parol proof that the indorsement was made to 
 give the maker credit with the payee. Coulter v. Richmond, 59 
 N. Y. 478. As the statute fixes the liability in such cases abso- 
 lutely, parol evidence would now seem inadmissible. This was held 
 to be the effect of the former statute of Connecticut. (Act of 1884, 
 Gen. Statutes, § 1860) which provided that " Blank indorsements of 
 a negotiable or non-negotiable note, by a person who is neither its 
 maker nor its payee, before or after its indorsement by the payee, 
 shall import the contract of an ordinary indorsement of negotiable 
 paper, as between such indorser and the payee or subsequent holders 
 of such paper.'' Spencer v. Allerton, 60 Conn. 410. But in Kohn 
 V. Consolidated Butter & Egg Co., 30 Misc. (N. Y.) 725, it was 
 said by McAdam, J. ohiter: " The true intention of indorsers, as 
 between themselves, can always be shown by oral evidence. To go 
 further and decide that the statute intended to create an incontest- 
 able liability against irregular indorsers would be to impute to the 
 legislative wisdom a design repugnant to every notion of judicial 
 procedure, especially in a provision enacted in the interest of law 
 reform." 
 
 Illustrations. 
 
 Note made by A payable to order of B, indorsed by 0, and after- 
 ward delivered to B. C is liable as indorser to B. 
 
 Note made by A payable to order of himself, indorsed by B, 
 and afterward delivered to C. B is liable as indorser to C. 
 
 Note made by A to order of B, indorsed by C before B, but 
 for accommodation of B, and discounted by Bank of X. is 
 liable as indorser to Bank of X and not to B. 
 
 § 115. Warranty where negotiation by delivery, et 
 cetera. — Every person negotiating an instrument by deliv- 
 ery or by a qualified indorsement, warrants (a) : 
 
66 THE NEGOTIABLE INSTRUMENTS LAW. 
 
 1. That the instrument is genuine (b) and in all respects 
 what it purports to be (c) ; 
 
 2. That he has a good title to it (d) ; 
 
 3. That all prior parties had capacity to contract (e) ; 
 
 4. That he has no knowledge of any fact which would 
 impair the validity of the instrument or render it value- 
 less (/). 
 
 But when the negotiation is by delivery only, the war- 
 ranty extends in favor of no holder other than the immediate 
 transferee. The provisions of subdivision three of this sec- 
 tion do not apply to persons negotiating public or corporate 
 securities, other than bills and notes (g). 
 
 (a) This, of course, refers only to the implied warranty. An 
 express warranty may be so framed as to exclude all other war- 
 ranties which would otherwise be implied by the law. GifPert i'. 
 West, .jT ^\'is. 115. 
 
 (?;) Littauer v. Goldman, 72 N. Y. 506; Whitney 1;. National 
 Bank of Potsdam, 45 N. Y. 303; Herrick v. Whitney, 15 Johns. 
 240; Canal Bank v. Bank of Albany, 1 Hih, 287; Coolidge v. Brig- 
 ham, 5 llcte. <1S. But if at the time of the transfer he expressly 
 decline to warrant the genuineness of the instrument no such war- 
 ranty will be implied. Bell v. Dagg, GO N. Y. 528. But a general 
 refusal to guarantee will not of itself exclude the implied warranty 
 of genuineness. (/(/.) The sale and transfer, for a full and fair 
 price, of a note past due, indorsed in blank by the person to whose 
 order it is payable, implies a warranty by the vendor that such 
 indorsement is valid. Giffert v. West, 07 Wis. 115. The indorse- 
 ment of a promissory note is a guaranty by the indorser to the in- 
 dorsee that the prior indorsements on the note and the signature 
 of the payor are genuine, and made by parties authorized to pass 
 the title. MoC'oneghy v. Kirk, 08 Pa. St. 200; ("'ondon ■!'. Pearce, 
 43 ild. S3; Lambert v. Pack, 1 Salk. 127: Critchlow v. Parry, 2 
 Camp. 182; Prescott Bank v. Caverly, 7 Gray, 21 G, 220. See next 
 section. 
 
 (c) By the rule of the common law, both in England and in the 
 
 United States, the doctrine is universally recognized that where 
 
 commercial paper is sold without indorsement or without express 
 
 "assumption of liability on the paper itself, the contract of sale 
 
 and the obligations which arise from it, as between vendor and 
 
LIABILITIES OF PARTIES. 67 
 
 vendee, are governed by the common law relating to the sale of 
 goods and chattels ; and the rule is that in such a sale the obligation 
 of the vendor is not restricted to the mere question of forgery vel 
 71011, but depends upon whether he has delivered that which he con- 
 tracted to sell, this rule being designated in England as a condition 
 of the principal contract, as to the essence and substance of the 
 thing to be sold, and in this country being generally termed an im- 
 plied warranty of the identity of the thing sold. Meyer v. Rich- 
 ards, 163 U. S. 385. In this case the decision of the Court of 
 Appeals of New York in Littauer v. Goldman, 72 N. Y. 506, is criti- 
 cised and disapproved. See also Wood v. Sheldon, 42 N. J. Law, 
 425. But there is no implied warranty by the vendor of a bill that 
 it was drawn against funds or that it was not accommodation paper. 
 People's Bank v. Bogart, 81 N. Y. 101; In re Hammond, 6 De G. M. 
 & G. 699. 
 
 (d) Meriden National Bank v. Gallaudet, 120 N. Y. 298, 303. 
 
 (e) Littauer v. Goldman, 72 N. Y. 506, 509. One who indorses 
 a promissory note, purporting to be executed by a firm, thereby im-- 
 pliedly contracts that the note was made by the firm in whose name 
 it is executed, and he cannot dispute the fact in an action upon the 
 indorsement. Dalrymple v. Hillenbrand, 62 N. Y. 5. And a second 
 indorser cannot dispute the legal capacity of the payee to indorse 
 on the ground that she was a married woman. Prescott Bank v. 
 Caverly, 7 Gray, 216, 217. So one indorsing the note of a corpora- 
 tion admits its capacity to execute the note. Glidden v. Chamber- 
 lin, 167 Mass. 486. But see Southern Loan Co. ■;;. Morris, 2 Pa. St. 
 175. 
 
 (f) Thus, upon the sale of a note there is an implied warranty 
 that it has not been paid. Daskman v. Ullman, 74 Wis. 474. 
 Where an instrument void for usury is transferred without 
 indorsement and without representation as to legality, an action 
 cannot be sustained against the vendor without alleging and proving 
 scienter. Littauer v. Goldman, 72 N. Y. 506. But see Wood v. 
 Sheldon, 42 N. J. Law, 425, and Meyer v. Eichards, 163 U. S. 385. 
 And the same rule applies in a case where the principal debtor has 
 become insolvent. Bicknall v. Waterman, 5 R. L 43; Fenn v. 
 Harrison, 3 T. R. 757; Fydell v. Clark, 1 Esp. 447. An express 
 warranty that proper measures have been taken to charge the in- 
 dorser, upon the maker's default, is not inconsistent with an 
 implied warranty that the instrument was originally valid. Giffert 
 V. West, 37 Wis. 115. 
 
 (ff) Otis V. CuUum, 92 U. S. 448. This was an action against 
 
58 THE NEGOTIABLE INSTRUMENTS LAW. 
 
 the vendor of municipal bonds payable to bearer, which were after- 
 ward declared void because the legislature had no power to pass 
 the acts under which they were issued. It was held that no recov- 
 ery could be had in tlie absence of an express warranty. The appli- 
 cation of the rule of commercial paper in such cases would work 
 great hardship and much public inconvenience. 
 
 § ii6. Liability of general indorser. — Every indorser 
 who indorses without qnalificatinn, warrants to all subse- 
 quent holders in due course : 
 
 1. The matter and things mentioned in subdivisions one, 
 two and three of the next preceding section (a) ; and 
 
 2. That the instrument is at the time of his indorsement 
 vahd and subsisting (&). 
 
 And, in addition, he engages that on due presentment, it 
 shall be accepted or paid, or both, as the case may be, accord- 
 ing to its tenor (c), and that if it be dishonored, and the nec- 
 essary proceedings on dishonor be duly taken, he will pa}- the 
 amount thereof to the holder, or to any subsequent indorser 
 who may be compelled to pay it (d). 
 
 (a) This section makes an important change in the law. In Na- 
 tional Park Bank c. Seaboard Xational Bank, 114 N. Y. 2s, the 
 Court of Appeals of New York held that where a bank, which had 
 acted merely as a collecting nf^ent, had paid the proceeds of a cheek 
 over to its principal, the bank making the payment could not recover 
 from the collecting bank upon subsequently discovering that the 
 clu'ck had been raised. In this- case the check was presented by the 
 Scal)navd Bank to the drawee bank through the clearing-house, and 
 hence there was no question as to liability of the Seaboard Bank 
 as an indorser to an indorsee. But in the ease of United States v. 
 American Exeluuiae National Bank, 70 Fed. Eep. 2:!2, the United 
 States District Coui-t for the Southern District of New York, 
 proceeding upon principles similar to those relied upon in the 
 New York case, held that the indorsement of a bank to which 
 paper has been indorsed for collection does not import a guaranty 
 of the genuineness of all prior indorsements, but only of the agent's 
 relation to the principal as stated upon the face of the paper, and 
 that in such case the collecting bank was not liable after it had 
 paid the proceeds to its principal, though a prior indorsement was 
 
LIABILITIES OF PARTIES. 69 
 
 a forgery. But the statute applies to all indorsers wlio indorse 
 ■without qualification; and no exception is made of indorsers to 
 whom the instrument has been indorsed restrictively. Hence a 
 bank indorsing paper forwarded for collection is liable in all re- 
 spects as an indorser, though the prior indorsement was " for col- 
 lection'' or " for deposit," or otherwise restrictive. 
 
 (h) Thus, whether a promissory note made on the Lord's Day 
 can be enforced by a payee against the maker is immaterial in a 
 suit by the iardorsee against the indorser, as the latter alwaj's 
 warrants the existence and legality of the contract which he under- 
 takes to assign. Prescqtt National Bank v. Butler, 157 Mass. 548. 
 
 (c) An indorser of a<»romissory note which contains a stipula- 
 tion for a reasonable attorney's fee in case of suit is as much liable 
 for the attorney's fee as for the principal of the note. Benn v. 
 Kutzschan, 24 Ore. 28. See sec. 21. 
 
 (d) The indorser has no right to require the holder to sue the 
 maker or drawer, under the penalty of the indorser being discharged 
 in case of non-compliance; and it is his duty to take up the note. 
 Day V. Ridgway, 17 Pa. St. 303. Nor is the holder bound to antici- 
 pate and make provision for a breach of the contract. Bartlett v. 
 Isbell, 31 Conn. 297. Parol evidence of an agreement which would 
 vary the legal liability of the indorser under his indorsement is 
 inadmissible. Smith v. Caro, 9 Ore. 278 ; Eaton v. ilcilahon, 42 
 Wis. 484. And while there has been some conflict in the decisions, 
 the sounder doctrine puts all indorsements on substantially the 
 same footing. The contract by a blank indorsement is fixed by law, 
 and should not be rendered uncertain by parol, any more than when 
 written out in full. Charles v. Denis, 42 Wis. 56, 58. This is the 
 rule adopted in the statute, which makes the indorser's obligation 
 absolute. 
 
 § 117. Liability of indorser where paper negotiable 
 by delivery. — AVhere a person places his indorsement on 
 an instrument negotiable by delivery he incurs all the liabili- 
 ties of an indorser (a). 
 
 (a) Cover v. Myers, 75 Md. 406. The holder of paper payable to 
 bearer and indorsed may sue upon it as bearer or indorsee at his 
 election. Daniel on Negotiable Instruments, section 663a; 3 Kent's 
 Comm. 44. In some of the States a note payable to a designated 
 payee or bearer cannot be negotiated except by the indorsement 
 
70 THE NEGOTIABLE INSTRUMENTS LAW. 
 
 of such person. See Garvin v. Wiswell, 83 111. 218; Blackman v. 
 Lehman, 63 Ala. 547. 
 
 § ii8. Order in which indorsers are liable. — As re- 
 spects one another, indorsers are liable prima facie in the 
 order in which they indorse (a) ; but evidence is admissible 
 to show that as between or among themselves they have 
 agreed otherwise [h). Joint payees or joint indorsees who 
 indorse are deemed to indorse jointly and severally (c). 
 
 (a) This rule is general, and applies to accommodation indorsers 
 as well as to others. Such indorsements import, not a joint but a 
 several and successive, liability, each indorser being responsible to 
 all who succeed him. Easterly v. Barber, GO N. Y. 433; Kelly v. 
 Burroughs, 102 N. Y. 93 ; Egbert v. Hanson, 34 Misc. 597 ; McCarty 
 V. Eoots, 21 How. (U. S.) 432; Bank of U. S. v. Beirne, 1 Gratt. 
 234; Hague v. Davis, S Gratt. 4; Shaw v. Knox, 98 Mass. 214; Mc- 
 Donald V. Magruder, 3 Peters, 470; Wood v. Eepold, 3 Harris & J., 
 125; Clapp v. Eioe, 13 Gray, 403; Howe v. Merrill, 15 Gush. 88; 
 Talcott V. Cogswell, 3 Day, 512 ; Kirschner ■o. Conklin, 40 Conn. 
 77, 81; Wolf V. Ilostetter, 182 Pa. St. 292; Euss v. Sadler, 197 Pa. 
 St. 51. 
 
 (&) Morrison Lumber Co. v. Lookout Mt. Hotel Co., 92 Tcnn. 6; 
 Bank of Jamaica v. Jefferson, 92 Tenn. 537; Eeinhart v. Schall, 69 
 Mil. 352; Hale v. Danforth, 46 Wis. 554; Witherow v. Slaybach, 
 158 X. Y. 049; Patch v. Washburn, 82 Mass. 82; Breneman .'. 
 Furniss, 90 Pa. St. 180. Evidence to show an agreement 
 for a joint liability: Easterly v. Barber, 66 N. Y. 433; Phillips 
 V. Preston, 5 How. (U. S.) 278; Edelen v. White, 6 Bush. 
 408; contra: Johnson v. Eamsay, 43 N. J. Law, 279. Evidence to 
 show contract that one was to be prior indorser: Slack v. Kirk, 67 
 Pa. St. 380; Pieinhart v. Schall, 09 'Mi]. 352; Slagel v. Bust, 4 Gratt. 
 274. The agreement may be evidenced by the circumstances of 
 the case. Macdonald v. Whitfield, L. E. 8 App. Cas. 733 ; Hagorthy 
 V. Phillips, S3 Me. 336; Clapp v. Eice, 13 Gray, 403. For a case 
 whore relief t;iven in equity where order of indorsers changed on 
 renewal of note without consent of one, see Slagel v. Busts' Admr., 
 6 Gratt. 274. 
 
 (r) This provision changes the law. Prior to the statute joint 
 payees who indorsed were liable only jointly. Lane v. Stacy, 8 
 Allen, 41; Daniel on Negotiable Listruments, section 704. 
 
PRESENTMENT FOR PAYMENT. yi 
 
 § 119. Liability of agent or broker.— Where a broker 
 or other agent negotiates an instrument without in- 
 dorsement, he incurs all the liabilities prescribed by section 
 one hundred and fifteen* of this act, unless he discloses the 
 name of his principal, and the fact that he is acting only as 
 agent (a). 
 
 (a) Meriden National Bank v. Gallaudet, 120 N. Y. 289; Cabot 
 Bank v. Morton, 4 Gray, 156 ; Worthington v. Cowles, 12 Mass. 30. 
 
 ARTICLE Vll.t 
 Presentment for Payment. 
 
 Section 130. Effect of want of demand on principal debtor. 
 
 131. Presentment where instrument is not payable 
 
 on demand. 
 
 132. What constitutes a sufficient presentment. 
 
 133. Place of presentment. 
 
 134. Listrument must be exhibited. 
 
 135. Presentment where instrument payable at 
 
 bank. 
 
 136. Presentment where principal debtor is dead. 
 
 137. Presentment to persons liable as partners. 
 
 138. Presentment to joint debtors. 
 
 139. When presentment not required to charge the 
 
 drawer. 
 
 140. When presentment not required to charge the 
 
 indorser. 
 
 141. When delay in making presentment is excused. 
 
 142. When presentment may be dispensed with. 
 
 * Amended by Laws of N. Y., 1898, ch. 336, so as to give correct 
 number. 
 
 t The numbers of the sections of this article in other States than New 
 York are as follows : Colorado, Connecticut, District of Columbia, 
 Florida, Massachusetts, North Carolina, North Dakota, Pennsylvania, 
 Oregon, Tennessee, Utah, Virginia and Washington, 70-88; Maryland, 
 89-107; Rhode Island, 78-96; Wisconsin, 1678-1678-18. 
 
72 
 
 THE NEGOTIABLE INSTRUMENTS LAW. 
 
 Section 143. When instrument dishonored by non-pay- 
 ment. 
 
 144. LiabiHty of person secondarily Hable, when 
 
 instrument dishonored. 
 
 145. Time of maturity. 
 
 146. Time; how computed. 
 
 147. Rule where instrument payable at bank. 
 
 148. What constitutes payment in due course. 
 
 § 130. Effect of want of demand on principal debtor. 
 
 — Presentment for payment is not necessary in order to 
 charge the person primarily liable* on the instrument (a) ; 
 but if the instrument is, by its terms, payable at a special 
 place, and he is able and willing to pay it there at maturity 
 and has funds there available for that purpose (b), such 
 ability and willingness are equivalent to a tender of payment 
 upon his part (c). But except as herein otherwise pro- 
 vided, presentment for payment is necessary in order to 
 charge the drawer and indorsers {d). 
 
 (a) Howard v. Boorman, 17 Wis. -150; Eumball v. Ball, 10 Md. 
 38; Frampton v. Coulson, 1 Wils. 3.3; Norton v. Ellam, 2 M. & W. 
 461; Hills v. Place, 48 N. Y. .5-20: Bush v. Gilmore, 45 App. Div. 
 (N. Y.) 89. The action itself is a sufficient demand, and that 
 though the instrument be payable on demand. The rule is general 
 and applies though the maker has made the note for accommodation 
 and this is known to the holder. Hansborougli i'. Gray, 3 Graft. 
 340. 
 
 (6) The words " and has funds there available for that purpose" 
 were added by Laws K. Y. 1S9S, C. 336. They seem to be super- 
 fluous. It is difficult to see how a man can i^e ahJe to pay, unless 
 he has the funds with which to make payment. Besides, if taken 
 literally, they impose a condition not deemed necessary by the 
 courts. If, for example, the " special place" where the paper is 
 payable is the office of the maker or acceptor, this provision re- 
 quires that he have the funds there, and it would not be enough 
 
 * The word " liable" omitted in the New York Act of 1897 supplied 
 by Act of 1898, c. 336. In the Wisconsin Act all of the first sentence 
 after the words " primarily liable on the instrument" is omitted. 
 
PRESENTMENT FOR PAYMENT. 73 
 
 that he have them in bank. The interpolation is not only at 
 variance with the decisions on the subject, but is contrary to 
 good sense, and to the practice of the business vforld. The 
 change vsras made upon the suggestion of the Commissioners 
 of Statutory Eevision without the knowledge of the Commission- 
 ers on Uniformity of Laws. It affords a good illustration of the 
 absurdities likely to result from legislative " tinkering." 
 
 (c) The rule adopted generally in the United States is that where 
 a note is made payable at a particular bank cr other place, or a bill 
 of exchange is drawn or accepted payable in like manner, it is 
 not necessary in order to recover of the maker or acceptor to aver 
 or prove presentment or demand of payment at such place on the 
 day the instrument became due or afterward. The only conse- 
 quence of a failure to make such presentment is that the maker or 
 acceptor, if he was ready at the time and place to make the payment, 
 may plead the matter in bar of damages and costs. Hills v. Place, 
 48 N. Y. 520, 523; Parker v. Stroud, 98 N. Y. 379, 384; Cox v. Na- 
 tional Bank, 100 U. S. 713 ; Wallace v. McConnell, 13 Peters, 136 ; 
 Lazier v. Horan, 55 Iowa 77; Insurance Company v. Wilson, 29 
 W. Va. 543 ; Lockwood v. Crawford, 18 Conn. 371 ; Bond v. Storrs, 
 13 Conn. 416. 
 
 (d) Where a draft is drawn in another State, by one residing 
 there, upon a party residing in this State, any legal question in 
 reference to presentation and demand for payment is to be deter- 
 mined by the laws of this State. Sylvester v. Crohan, 138 N. Y. 
 494; Hibernia Bank v. Lacomb, 84 N. Y. 367. The indorser is 
 entitled to demand and notice notwithstanding he holds collateral 
 security. Whitney v. Collins, 15 E. I. 44. 
 
 § 131. Presentment where instrument is not payable 
 on demand. — Where the instrument is not payable on de- 
 mand, presentment must be made on the day it falls due (a). 
 Where it is payable on demand, presentment must be made 
 within a reasonable time after its issue (b), except that in 
 case of a bill of exchange, presentment for payment will be 
 sufficient if made within a reasonable time after the last 
 negotiation thereof. 
 
 (a) As to date of maturity, see section 145. 
 
 (b) Turner v. Iron Chief Mining Co., 74 Wis. 355; Mudds v. 
 Harper, 1 Md. 110. This changes the law of New York, which 
 
74 THE NEGOTIABLE INSTRUMENTS LAW. 
 
 prior to the statute was, that a promissory note payable on demand 
 with interest is a continuing security, on which an indorser remains 
 liable until an actual demand, and the holder is not chargeable with 
 neglect for omitting to make such demand within any particular 
 time. Merritt v. Todd, 23 N. Y. 28 ; Pardee v. Fish, 60 N. Y. 265; 
 Herrick v. Wolverton, 41 :N. Y. 581 ; Wheeler v. Warner, 47 N. Y. 
 619; Crim v. Starkweather, 88 K. Y. 339; Parker v. Stroud, 98 
 K. Y. 379, 385 ; Shutts v. Fingar, 100 N. Y. 541. The former rule 
 was criticised in some of the later cases. In Connecticut prior to 
 the statute promissory notes payable on demand were required to 
 be presented within four months. Connecticut General Statutes, 
 p. 405. A similar rule exists in California (Civil Code, sec- 
 tion 3248), and in Minnesota (Minnesota statutes [1891], sec- 
 tion 2104.) In Vermont demand notes are overdue in sixty days. 
 Paine v. Central Vermont E. E. Co., 118 U, S. 152. And 
 this was formerly the rule in Massachusetts. (M.) As to 
 a note payable on demand, " with interest semi-annually," see 
 Hayes !'. Werner, 45 Conn. 252. One of the most difficult ques- 
 tions presented for the decision of a court of law is, what shall be 
 deemed a reasonable time within which to demand payment of the 
 maker of a note payable on demand, in order to charge the indorser. 
 It depends upon so many circumstances to determine what is a rea- 
 sonable time in a particular case, that one decision goes but little 
 way in establishing a precedent for another. Seaver v. Lincoln, 
 21 Pick. 2G7. As by section 26 an instrument negotiated 
 when overdue is payable on demand, the requirement of sec- 
 tion 131 is applicable in such cases. In theory paper indorsed 
 when overdue is equivalent to a bill of exchange drawn on the 
 party primarily liable, payable at sight. In this theory, the neces- 
 sity of demand and notice is an essential element : not notice on a 
 given day, as in the case of a maturing note, possible in that case, 
 but impossible in the other, for the day appointed by the former 
 maker and the new acceptor has passed ; but notice after the holder 
 has had reasonable time to make the demand on the maker, and 
 has employed that time with diligence. Tyler r. Young, 30 Pa. St. 
 143, 144; Leidy v. Tammanj', 9 Watts, 353; Guild v. Goldsmith, 9 
 Fla. 212. Where the facts are ascertained the question of what is a 
 reasonable time for demand of payment and notice of dishonor in 
 the case of a note transferred after it has become due is a 
 question of law, depending on the facts of each particular case. 
 (Juild ■('. Goldsmith, 9 Fla. 212. In the ease of a negotiable cer- 
 tificate of deposit there is much reason for saying that the parties 
 
PRESENTMENT FOR PAYMENT. 75 
 
 do not contemplate an immediate- demand of payment, and hence 
 an indorsee may not be held to the same degree of diligence in pre- 
 senting it for payment as the law requires in other cases. Lindsel v. 
 McClellan, 18 Wis. 481. As to corporate bonds and coupons, see 
 Williamsport Gas Co. v. Pinkerton, 95 Pa. St. 62. 
 
 § 132. What constitutes a sufficient presentment. — 
 
 Presentment for payment, to be sufficient, must be made: 
 
 1. By the holder, or by some person authorized to receive 
 payment on his behalf (a) ; 
 
 2. At a reasonable hour on a business day (b) ; 
 
 3. At a proper place as herein defined (c) ; 
 
 4. To the person primarily liable on the instrument, or if 
 he is absent or inaccessible, to any person found at the place 
 where the presentment is made (d). 
 
 (a) The mere possession of a negotiable instrument which is 
 payable to the order of the payee, and is indorsed by him in blank, 
 or of a negotiable instrument payable to bearer, is in itself suffi- 
 cient evidence of the right to present it and to demand payment 
 thereof. Weber v. Orton, 91 Mo. 680; Sussex Bank v. Baldwin, 2 
 Harr. (N. J.), 487; Shedd v. Brett, 1 Pick. 401. And payment 
 to such person will always be valid, unless he is known tq the 
 payer to have acquired possession wrongfully. Daniel on Nego- 
 tiable Instruments, section 574. There is no need of a power of 
 attorney or written instrument to constitute one an agent for this 
 purpose, Shedd v. Brett, 1 Pick. 401. But the mere possession 
 of an ixistrument payable to order and not indorsed by the payee 
 is not alone sufficient evidence of the authority of an assumed agent 
 to receive payment. Doubleday v. Kress, 50 N. T. 410. Where 
 a bank holding a note for collection sends it for the same purpose 
 to the bank where it is payable, the latter is authorized to demand 
 payment and give notice of dishonor. Blakeslee v. Hewett, 16 Wis. 
 341. 
 
 (5) Except in cases where the instrument is payable at a bank, 
 the holder has the whole day in which to present the same, the only 
 limitation being that he must present it at a reasonable hour, and 
 this may depend upon the circumstances of the case. Salt Springs 
 National Bank v. Burton, 58 N. T. 430; Farnsworth v. Allen, 4 
 Gray, 453; Barclay v. Bailey, 2 Camp. 527; Wilkins v. Jadis, 2 
 B. & Ad. 188. As late as nine o'clock in the evening has been held 
 
76 THE NEGOTIABLE INSTRUMENTS LAW. 
 
 to be a reasonable hour. Farnsworth v. Allen, 4 Gray, 453. But 
 it is only when presentment is at the residence that the time is 
 extended into the hours of rest. If it is at the place of business 
 it must be during those business hours when such places are cus- 
 tomarily open, or, at least, while some one is there competent to 
 give an answer. Waring v. Betts, 90 Va. 40, 53. As to when 
 instruments payable at bank must be presented, see section 135. 
 
 (c) See next section. 
 
 (d) Cromwell v. Ilynson, 2 Camp. 596; Phillips v. Astberg, 2 
 Taunt. 206. 
 
 § 133. Place of presentment. — Presentment for pay- 
 ment is made at the proper place. 
 
 1. A\'here a place of payment is specified in the instrument 
 and it is there presented ; 
 
 2. A\' here no place of pa}ment is specified, but the address 
 of the person to make payment is given in the instrument and 
 it is there presented ; 
 
 3. AMiere no place of payment is specified and no address 
 is given and tlie instrument is presented at the usual place 
 of business or residence of the person to make payment (a). 
 
 4. In any other* case if presented to the person to make 
 pa}-ment wherever he can be found, or if presented at his last 
 known place of business or residence (b). 
 
 (a) Gates v. Beecher, GO N". Y. 518, 522 ; Holtz v. Boppe, 37 N. T. 
 634. A presentment at the maker's usual place of business during 
 business hours, there being no one there to answer, is a sulEcient 
 demand to charge the indorser; for the maker is bound to have a 
 suitable person there to answer inquiries, and pay his notes, if there 
 demanded. Baumgardner. v. Beeves, 35 Pa. St. 250. Wallace i'. 
 Cvilly, 4G Wis. 577. And presentment at such place is sufficient, 
 though it be closed, there being no explanation furnished as to why 
 it is closed. Sulsbacker i . Bank of Charleston, s6 Tenn. 201. If, 
 however, the party has aliandoned his place of business at the 
 maturity of the paper, but has a residence or other place of business 
 in the city, whii'h could he ascertained by reasonable inquiry, a 
 presentment at the former place of business would not be sufficient. 
 
 * The word "other" omitted from the New York statute of 1897 
 through mistake supplied by Act 1898, c. 336. 
 
PRESENTMENT FOR PAYMENT. 7/ 
 
 (Id.) The making and dating of a promissory note at a particular 
 place is not equivalent to making it payable there, nor does it 
 supercede the necessity for presentment and demand at the resi- 
 dence or place of business of the maker if it be known, or if by 
 due diligence in making inquiry it could be ascertained. Oxnard 
 V. Varnum, 111 Pa. St. 193. But where a bill of exchange is ad- 
 dressed to the drawee at a particular house, and the same is 
 accepted generally by him, the address indicates the place where 
 it is to be presented for payment, and a presentment there is suffi- 
 cient as against the drawee and indorsers. Pierce v. Struthers, 27 
 Pa. St. 249, 254; Struthers v. Blake et al., 30 Pa. St. 139. Where 
 a note is dated at a particular place, and no other place is desig- 
 nated as that of its negotiation and payment, the presumption is 
 that the maker resides where the note is dated, and that he con- 
 templates payment at that place. Sasscer v. Stone, 10 Md. 
 98; Eicketts v. Pendleton, 14 Md. 320; Nailer v. Bowie, 3 
 Md. 251 ; Clark v. Seabright, 135 Pa. St. 173. But this is presump- 
 tion only, and if he resides elsewhere within the State when the 
 note falls due, and this is known to the holder, demand must be 
 made at the maker's residence or place of business. Sasscer v. 
 Stone, 10 Md. 98. When the maker does not reside, and has no 
 place of business, in the State where the note is payable, no demand 
 upon him is necessary in order to charge the indorser. Ricketts v. 
 Pendleton, 14 Md. 320. And if the maker absconds, this will gen- 
 erally excuse the demand; but if he changes his residence within 
 the same jurisdiction, the holder must endeavor to find it and make 
 demand there. Nailor v. Bowie, 3 Md. 251. But where the maker 
 or acceptor waives presentment at his place of business or resi- 
 dence, presentment elsewhere may be sufficient. King v. Holmes, 
 11 Pa. St. 456 ; Parker v. Kellogg, 158 Mass. 90. 
 
 (6) If the maker leaves the State subsequent to the making of 
 the note, presentment at his former place of business or residence 
 is sufficient. Nailor v. Bowie, 3 Md. 251. 
 
 § 134. Instrument must be exhibited. — The instrument 
 must be exhibited to the person from whom payment is de- 
 manded, and when it is paid must be delivered up to the 
 party paying it (a). 
 
 {a) Ocean Nat. Bank v. Fant, 50 N. T. 474, 476; Smith v. 
 Eocliwell, 2 Hill, 482; Musson v. Lake, 4 How. 262; Freeman v. 
 
78 THE NEGOTIABLE INSTRUMENTS LAW. 
 
 Boynton, 7 Mass. 483 ; Draper v. Clemens, 7 Mo. 52. This is requi- 
 site in order that the drawer or acceptor may be able to judge (1) of 
 the genuineness of the instrument; (2) of the right of the holder 
 to receive payment; and (3) that he may immediately reclaim 
 possession upon paying the amount. Waring v. Betts, 90 Va. 
 40, 51. Demand of payment without actual exhibition of the note 
 is sufficient tu bind the indorser where the maker does not demand 
 to see the note but refuses payment on other grounds. Legg v. 
 Viman, 1G5 Mass. 555 ; Waring v. Betts, 90 Va. 46 ; Lockwood v. 
 Crawford, 18 Conn. 361; Fall Eiver Union Bank v. Willard, 5 
 Metcalf, 216. Where the note is secured by collaterals the maker 
 is entitled to require that they be delivered with the note; and if 
 he insists upon it, they must be tendered with the note or the 
 demand of payment will not be sufficient. Ocean Nat. Bank v. 
 Fant, 50 N. Y. 474. 
 
 § 135. Presentment where instrument payable at 
 bank. — W'liere the instrument is payable at a bank, pre- 
 sentment for payment must be made during banking hours, 
 unless the person to make payment has no funds there to 
 meet it at any time during the day, in which case present- 
 ment at any hour before the bank is closed on that day is 
 sufficient (a). 
 
 (a) See Salt Springs National Bank v. Burton, 58 N. Y. 430; 
 Bank of Syracuse r. Hollister, 17 N. Y. 46 ; Bank of Utica v. Smith, 
 18 Johns. 230; Parker u. (Jonlon, 7 East. 387; Garnett v. Wood- 
 cock, 1 Starkic, 475; Keed v. Wilson, 41 N. J. Law, 29; Waring v. 
 Betts, 90 Va. 46: Shcpard v. Chamberlain, 8 Gray, 225. The 
 authorities are not asrecd upon the point as to tlie precise time 
 when suit may be brought on a dishonored note payable at a bank, 
 some holding that it cannot be brought until the day after its dis- 
 honor, others that it may be brought at any time after the expira- 
 tion of business hours on the day it is payable, and others still 
 that it may be commenced as soon as payment is refused on that 
 (lay. Citizens' Bank v. Lay, 80 Va. 436, 440; Church v. Clark, 21 
 Pick. 30'.); Blackman v. Nearing, 43 Conn. 60; Humphreys v. Sut- 
 cliffe, 192 Pa. St. 336. If a note held by a bank at which it is pay- 
 able is not paid when due, no presentment and demand of payment 
 are necessary. Dykman 0. Northridge, 1 App. Div. (N. Y.) 26. It 
 is sufficient that the note was in the bank on the day it fell due. 
 
PRESENTMENT FOR PAYMENT. 79 
 
 and that there were no funds of the maker there, or other pro- 
 vision for payment. liallowell v. Curry, 41 Pa. St. 322. Where a 
 national bank has been placed in the hands of a receiver, paper 
 payable at the bank should be presented at the office of the receiver. 
 Hutchison v. Crutcher, 98 Tenn. 421. And presentment there is 
 not excused because he has removed his office and the assets 
 of the bank to another building in the same place. (Jd.) But see 
 Berg V. Abbott, 83 Pa. St. 177. It has been held that the office of 
 a private banker is not a bank within the terms of a note made 
 payable at " any bank in Boston." Way v. Butterworth, 108 Mass. 
 509. As to bank customs see Grand Bank v. Blanchard, 23 Pick. 
 305, 306; Mechanics' Bank v. Merchants' Bank, 6 Mete. 13, 24; 
 Boston Bank v. Ilodges, 9 Pick. 420; People's Bank v. Keech, 26 
 Md. 521. But now that the statute prescribes the rules as to pre- 
 sentment these matters can no longer be governed by custom; 
 certainly not if the custom conflicts with the statute. 
 
 § 136. Presentment where principal debtor is dead. 
 
 — Where the person primarily liable on the instrument is 
 dead, and no place of payment is specified, presentment for 
 payment must be made to his personal representative, if such 
 there be, and if with the exercise of reasonable diligence, he 
 can be found {a). 
 
 (a) But there must be competent and legal proof of his death, 
 and that the party upon whom the demand was made was such 
 representative; the statement of these facts in the protest is not 
 prima facie proof thereof. Weems v. Farmers' Bank, 15 Md. 231. 
 
 § 137. Presentment to persons liable as partners. — 
 
 Where the persons primarily liable on the instrument are 
 liable as partners, and no place of payment is specified, pre- 
 sentment for payment may be made to any one of them, even 
 though there has been a dissolution of the firm (a). 
 
 (a) Gates v. Beecher, 60 N. Y. 518; Cayuga County Bank v. 
 Hunt, 2 Hill, 635; Crowley v. Barry, 4 Gill, 194; Fourth Nat. Bank 
 V. Henschuk, 52. Mo. 207. 
 
8o THE NEGOTIABLE INSTRUMENTS LAW. 
 
 § 138. Presentment to joint debtors.— Where there are 
 several persons not partners, primarily liable on the instru- 
 ment, and no place of payment is specified, presentment must 
 be made to them all (o) . 
 
 (a) Gates v. Beecher, 60 N. Y. 518, 523 ; Union Bank v. Willis, 
 8 Mete. 504; Arnold v. Dresser, 8 Allen, 435; Willis v. Green, 5 
 Hill, 232 ; Benedict v. Schmieg, 13 Wash. 476. In some cases this 
 might be impracticable, but such cases are covered by section 142. 
 
 § 139. When presentment not required to charge 
 the drawer. — Presentment for payment is not required in 
 order to charge the drawer where he has no right to expect 
 or require that the drawee or acceptor will pay the instru- 
 ment (a). 
 
 (a) But presentment is not dispensed with merely because the 
 draAver has no funds in the hands of the drawee. Life Insurance 
 Company v. Pendleton, 112 U. S. 708; Dickens v. Beal, 10 Pet. 572; 
 Welch V. B. C. Taylor Mfg. Co., 82 111. 581 ; Kimball v. Bryan, 56 
 Iowa, 032 ; Kinsley v. Eobinson, 21 Pick. 327. It is sufficient if 
 the drawer had a reasonable expectation that the bill would be 
 paid; or if there was an agreement between him and the drawee 
 that the latter should accept, or a course of dealing between them 
 by which the drawee was accustomed to accept without reference 
 to the state of the mutual accounts. See cases cited above. Present- 
 ment of a check is excused where the making of the check was a 
 fraud upon the part of the drawer, he having no funds in the bank, 
 and no ground for a reasonable expectation that it would be paid. 
 Beauregard v. Knowlton, 156 Mass. 395, 396. 
 
 § 140. When presentment not required to charge 
 the indorser. — Presentment for payment is not required in 
 order to charge an indorser where the instrument was made 
 or accepted for his accommodation, and he has no reason to 
 expect that the instrument will be paid if presented. 
 
 § 141. When delay in making presentment is ex- 
 cused. — Delay in making presentment for payment is 
 
PRESENTMENT FOR PAYMENT. Ol 
 
 excused when the delay is caused by circumstances be- 
 yond the control of the holder and not imputable to his 
 default, misconduct or negligence (a). When the cause of 
 delay ceases to operate, presentment must be made with rea- 
 sonable diligence. 
 
 (a) Windham Bank v. Norton, 22 Conn. 213; Pier v. Hein- 
 richsofFen, 67 Mo. 163. In these cases the delay was caused by 
 miscarriage in the mail. See section 176. Sickness of the holder 
 of the note is not an excuse for the failure to present it at the 
 proper time, unless it was not only sudden, but so severe as not 
 only to prevent him from making the presentment and giving notice 
 of non-payment himself, but from employing another person to 
 do it; and then it must be shown that the proper steps were taken 
 as soon as the disability was removed. Wilson v. Senier, 14 Wis. 
 380. Where the facts are not disputed the question of due dili- 
 gence is one of law for the court; but if there is a dispute as to 
 the facts, the question is for the jury. Belden v. Lamb, 17 Conn. 
 451. 
 
 § 142. When presentment may be dispensed with. — 
 
 Presentment for payment is dispensed with : 
 
 1. Where after the exercise of reasonable diligence 
 presentment as required by this act cannot be made (a) ; 
 
 2. Where the drawee is a fictitious person ; 
 
 3. By waiver of presentment express or implied (b). 
 
 (a) The burden is upon the plaintiff to show that due diligence 
 was used. Eaton v. McMahon, 42 Wis. 484. It is the duty of a 
 holder to give the notary information as to the residence of the 
 drawer and indorser; and if this is unknown to the holder, he 
 must inquire of those whose names are upon the note or bill as 
 to the residence which he does not know. If there are none such, 
 he must use due diligence to ascertain them. It will not do for 
 the holder to put the note or bill in the hands of the notary at the 
 place where it was drawn without furnishing him any informa- 
 tion as to the residence of the maker, or that of the indorser, and 
 then for the notary, without inquiry from him, to return the note 
 without demand or notice. The holder is the one most likely of 
 all persons to know the place of residence of those to whom he 
 
82 THE NEGOTIABLE INSTRUMENTS LAW. 
 
 looks for payment, and due diligence requires that he should give 
 the information to his agent, whom he employs to make demand 
 from the maker and give notice to the indorser; or, if he neglects 
 to do so, that the agent should inquire of him where the parties 
 reside. Smith v. Fisher, 24 Pa. St. 222. When the facts are 
 undisputed, the question of diligence is for the court. Smith v. 
 Fisher, 2i Pa. St. 222; Wheeler v. Field, 6 Mete. 290. Present- 
 ment is not dispensed with by the insolvency of the maker or 
 drawee. Eienke v. Wright (Wis.), 67 N. W. Eep. 737; Haw- 
 ley V. Jette, 10 Oregon 31; Bensonhurst v. Wilby, 45 Ohio St. 
 340; Jackson v. Richards, 2 Caines, 343; Armstrong v. Thurston, 
 11 Md. 148. 
 
 (6) The waiver may be made either during the currency of the 
 note or after its maturity. Power v. Mitchell, 7 Wis. 161. It 
 may be made either verbally or in writing. Smith v. Lownsdale, 
 6 Oregon 78. Nor is it necessary that the waiver should be direct 
 and positive. It may result from implication and usage, or from 
 any understanding between the parties which is of a character 
 to satisfy the mind that a waiver is intended. Cady v. Bradshaw, 
 116 N. Y. 188, 191. The assent must be clearly established, how- 
 ever, and will not be inferred from doubtful or equivocal acts or 
 language. Eoss v. Hurd, 71 N. Y. 14. But any language cal- 
 culated to induce the holder not to make demand or protest is 
 sufficient. Meyer & Brothers' Appeal, 87 Pa. 129; Boyd v. Bank 
 of Toledo, 32 Ohio St., 526. Where the indorser requests the 
 holder to extend the time of payment and promises to let his 
 name remain on the instrument, this will amount to a waiver 
 of presentment and notice of non-payment. Cady v. Bradshaw, 
 116 N. Y. 1S8, 191, 1!)2. So a telegram sent to the collecting bank 
 requesting it to pay the note and save protest and draw on, in 
 reply to an inquiry made of the firm by such bank, is a sufficient 
 waiver. Seldner v. Mount Jackson Xational Bank, 66 Md. 483. 
 So where an indorser admits his liability at the time of the 
 maturity of the note and accompanies such admission with an offer 
 to " arrange the matter" with the holders, and thereafter by his 
 conduct shows that he regards himself as liable, and asks for 
 indulgence. Mover & Brothers' Appeal, 87 Pa. St. 129. So where 
 a note is a short time before the day of its maturity, pre- 
 sented to an indorser, and the latter then promises that if the note 
 is suffered to run he will pay it whenever payment is called for. 
 Hale V. Danforth, 4G Wis. 554. And so, where, in response to in- 
 quiry by the holder, the indorser told him that it would be of no 
 
PRESENTMENT FOR PAYMENT. 83 
 
 use to call upon the maker. Barker v. Parker, 6 Pick. 80. A 
 waiver of the right to notice does not excuse demand of payment. 
 Berkshire Bank v. Jones, 6 Mass. 524; Low v. Howard, 11 Cush. 
 268, 2*70. An agreement to waive demand and notice is not 
 within the statute of frauds; it is not a new contract, but only a 
 waiver absolutely or in part of a condition precedent to liability. 
 Taunton Bank v. Richardson, 5 Pick. 436; Barclay v. Weaver, 19 
 Penn. State E. 396; Power i). Mitchell, Y Wis. 159, 166. As to waiver 
 where the maker has transferred all his property to the indorsee, 
 see Brandt v. Mickle, 26 Md. 436 ; Mechanics' Bank v. Griswold, 7 
 "Wend. 165; Moore v. Alexander, 63 App. Div. (N. Y.) 100; Brown 
 1;. MafEey, 15 East 222 ; Bond v. Farnham, 5 Mass. 170. 
 
 § 143. When instrument dishonored by non-payment. — 
 
 The instrument is dishonored by non-payment when : 
 
 1. It is duly presented for payment and payment is refused 
 or cannot be obtained ; or 
 
 2. Presentment is excused and the instrument is overdue 
 and unpaid. 
 
 § 144. Liability of person secondarily liable, when in- 
 strument dishonored. — Subject to the provisions of this 
 act, when the instrument is dishonored by non-payment, an 
 immediate right of recourse to all parties secondarily liable 
 thereon, accrues to the holder (a). 
 
 (a) When the indorser's liability has been fixed by demand and 
 notice of dishonor, he becomes an independent and principal 
 debtor, and does not stand in the position of a mere surety. Ger- 
 man-American Bank V. Niagara Cycle Co., 13 App. Div. 450 ; First 
 Nat. Bank v. Wood, 71 N. T. 405, 411. Though the holder has 
 received collateral from the maker, the law implies no contract 
 to proceed on the collaterals before suing the indorser. Buck v. 
 Freehold Bank, 37 N. J. Law, 307. The section does not change 
 the law as to conditional guaranties, as, for example, a guaranty 
 of the collectibility of the instrument, in which ease there is no 
 right of recourse against the guarantor until the holder has first 
 made proper effort to collect from the principal debtor, Cowles v. 
 Peck, 55 Conn. 251; Summers v. Barrett, 65 Iowa; for in such 
 case the terms of the express contract exclude the idea of an in- 
 tention to incur the liability prescribed by the statute. 
 
84 THE NEGOTIABLE INSTRUMENTS LAW. 
 
 § 145. Time of maturity.— Every negotiable instru- 
 ment is payable at the time fixed therein without grace (a). 
 When the day of maturity falls upon Sunday or a holiday, 
 the instrument is payable on the next succeeding business 
 day. Instruments falling due or becoming payable* on Sat- 
 urday are to be presented for payment on the next succeed- 
 ing business day, except that instruments payable an demand 
 may, at the option of the holder, be presented for payment 
 before twelve o'clock noon on Saturday when that entire day. 
 is not a holiday (b). 
 
 (a) Besides the States in which the Negotiable Instruments Law 
 has been adopted, days of grace have been abolished in the following 
 States: California, Idaho, Illinois, Maine, Montana, New Jersey, 
 Vermont. 
 
 (6) Laws of Mass. March 30, 1895, May 28, 1895 ; Laws of Maine, 
 1897, Ch. 259 ; Laws of New York, 1SS7, Ch. 289, Ch. 461 ; Laws of 
 Penn. May 31, 1893; Laws of U. S. Feb. 18, 1893; Laws of N. J. 
 1805, Ch. 43. In the Wisconsin Act all after the second sentence 
 is omitted. In the Colorado Act the following is substituted for 
 the third sentence : " Instruments falling due on any day, in any 
 place where any part of such day is a holiday, are to be presented 
 for payment on the next succeeding business day, except that in- 
 struments payable on demand may, at the option of the holder, be 
 presented for payment during reasonable hours of the part of 
 such day which is not a holiday.'' In the North Carolina Act a 
 provision (Sec. 197) is added as follows: "The laws now in force 
 in this State with regard to days of grace shall remain in force 
 and shall not be construed to be repealed by this act." In Massa- 
 chusetts the amendatory act (Laws 1899, c. 130) provides: "On 
 all drafts and bills of exchange made payable within this Com- 
 monwealth at sight three days of grace shall be allowed, unless 
 there is an express stipulation therefor to the contrary." See 
 p. 149. 
 
 § 146. Time ; how computed.— Where the instrument 
 is payable at a fixed period after date, after sight, or after 
 the happening of a specified event, the time of payment is 
 
 * The words " or beroiring pavable" were sdderl bv Laws N Y. 1898, 
 c. 336. They are not in the statute in the other Stntr^. 
 
PRESENTMENT FOR PAYMENT. 85 
 
 determined by excluding the day from which the time is to 
 begin to run, and by including the date of payment (a) . 
 
 (o) See New York Statutory Construction Law, sections 26, 27. 
 
 § 147. Rule where instrument payable at bank. — 
 
 Where the instrument is made payable at a bank it is equiva- 
 lent to an order to the bank to pay the same for the account 
 of the principal debtor thereon (a). 
 
 (a) There is some conflict in the decisions as to the authority of 
 a bank to pay a note or acceptance made payable there. The rule 
 adopted in the statute is the one sustained by the weight of author- 
 ity; and is also the rule which is most convenient in practice. It 
 is supported by the following decisions : iEtna Nat. Bank v. Fourth 
 Nat. Bank, 46 N. Y. 82 ; Commercial Bank v. Hughes, 17 Wend. 
 94 ; Commercial Nat. Bank. v. ITenninger, 105 Pa. St. 496 ; Bedford 
 Bank v. Acoarn, 125 Ind. 582 ; Home Nat. Bank v. Newton, 8 Brad- 
 well, 563; contra: Grissom v. Commercial Bank, 87 Tenn. 350. In 
 Pennsylvania it is held that where a bank is the holder of a note 
 payable at the banking house, and upon its maturity the maker 
 has a cash deposit in such bank exceeding the amount of the note, 
 which deposit is not specially applicable to a particular purpose, 
 the bank is bound to charge up the amount of the note against 
 the deposit. In such cases the note is in effect a draft on the 
 bank in favor of the holder, and in discharge of the indorser. Ger- 
 man National Bank v. Foreman, 138 Pa. St. 474, 479. Commer- 
 cial National Bank v. Henninger, 105 Pa. 496 But it is 
 also held in that State that while a bank which has discounted 
 a promissory note may appropriate to the payment of the note funds 
 in its hands belonging to any party to the note, when payment 
 is not made at the time and place named, yet it is not bound to 
 do so as to any party except the maker. Mechanics' and Traders' 
 Bank v. Seitz, 150 Pa. St. 632. 
 
 § 148. What constitutes payment in due course. — 
 
 Payment is made in due course when it is made at or after 
 the maturity of the instrument (a) to the holder (5) thereof 
 in good faith and without notice that his title is defective. 
 
 (o) Payment before the day is adefense which binds only the 
 
86 THE NEGOTIABLE INSTRUMENTS LAW. 
 
 party receiving payment and those who stand in his shoes. Watson 
 V. Wyman, 161 Mass. 96, 99. 
 
 (h) It is the duty of the maker to see that the payee has it in 
 possession, and to tal-ce it up when he pays it. Adair v. Lenox, 15 
 Oregon 489. The rule is that if a bill be paid at maturity, in full, 
 by the acceptor, or other party liable, to a person having a legal 
 title in himself by indorsement, and having the custody and posses- 
 sion of the bill ready to surrender, and the party paying has no 
 notice of any defect of title or authority to receive, the payment will 
 be good. But if upon such payment the holder has not the actual 
 possession of the bill ready to be delivered, and does not in fact 
 surrender it, but gives a receipt or other evidence of the payment, 
 and it turns out that the party thus receiving had not a good right 
 and lawful authority to receive and collect the money, but that 
 another person has such right, the payment will not discharge the 
 party paying, but will be a payment in his own wrong. Wheeler v. 
 Guild, 20 Pick. 545, 553; Trustees of the I. I. Funds v. Lewis, 34 
 Lla. 424, 428. And payment made to the original holder, after in- 
 dorsement and delivery of the paper even as collateral security, 
 is no defense to a suit on the note by the indorsee, although the 
 payment was made by the maker without notice or knowledge of 
 the transfer. Gosling v. GrifSn, 85 Tenn. Y37. But while a per- 
 son not in the actual possession of negotiable paper is presumed 
 from that fact alone to have no authority to receive payment 
 thereon, yet such presumption may be rebutted and overcome by 
 evidence showing actual authority. Swengle v. Wells, 7 Ore. 222. 
 
 ARTICLE VIII.* 
 
 Notice of Dishonor. 
 
 Section i6o. To whom notice of dishonor must be given. 
 i6i. By whom given. 
 162. Notice given by agent. 
 
 * The numbers of the sections of this article in other States than New 
 York are as follows : Colorado, Connecticut, District of Columbia, 
 Florida, Massachusetts, North Carolina. North Dakota, Pennsylvania, 
 Oregon, Tennessee. Utah, Virginia and Washington, 89-118; Maryland, 
 108-137; Rhode Island, 97-126; Wisconsin, 1678-48. 
 
NOTICE OF DISHONOR. 87 
 
 Section 163. Effect of notice given on behalf of holder. 
 
 164. Effect where notice is given by party entitled 
 
 thereto. 
 
 165. When agent may give notice. 
 
 166. When notice sufficient. 
 
 167. Form of notice. 
 
 168. To whom notice may be given. 
 
 169. Notice where party is dead. 
 
 170. Notice to partners. 
 
 171. Notice to persons jointly liable. 
 
 172. Notice to bankrupt. 
 
 173. Time within which notice must be given. 
 
 174. Where parties reside in same place. 
 
 175. Where parties reside in different places. 
 
 176. When sender deemed to have given due notice. 
 
 177. Deposit in post-office, what constitutes. 
 
 178. Notice to subsequent parties, time of.^ 
 
 179. Where notice must be sent. 
 
 180. Waiver of notice. 
 
 181. Whom affected by waiver. 
 
 182. Waiver of protest. 
 
 183. When notice dispensed with. 
 
 184. Delay in giving notice; how excused. 
 
 185. When notice need not be given to drawer. 
 
 186. When notice need not be given to indorser. 
 
 187. Notice of non-payment where acceptance re- 
 
 fused. 
 
 188. Effect of omission to give notice of non-accept-* 
 
 ance. 
 
 189. When protest need not be made; when must 
 
 be made. 
 
 § 160. To whom notice of dishonor must be given. — 
 
 Except as herein otherwise provided, when a negotiable in- 
 strument has been dishonored by non-acceptance or non- 
 payment, notice of dishonor must be given to the drawer and 
 
88 THE NEGOTIABLE INSTRUMENTS LAW. 
 
 to each indorser, and any drawer or indorser to whom such 
 notice is not given is discharged (a). 
 
 (a) This rule does not apply to guarantors. Brown v. Curtiss, 
 2 N". Y. 225 ; Allen v. Kightmere, 20 JoKns. 365 ; Breed v. Hillhouse, 
 7 Conn. 523; Eoberts v. Hawkins, 70 Mich. 566; Hungerford v. 
 O'Brien, 37 Minn. 306. And proceedings against the maker- are 
 necessary only where there is a guaranty of collection. Brown v. 
 Curtiss, supra. The burden of proving that due notice was given 
 is on the holder. Marks v. Boone, 24 Fla. 177. 
 
 § i6i. By whom given. — The notice may be given by 
 
 or on behalf of the holder, or by or on behalf of any party 
 to the instrument who might be compelled to pay it to the 
 holder, and who, upon taking it up, would have a right to 
 reimbursement from the party to whom the notice is given 
 (a). 
 
 (a) It was once held that no party could give a valid notice 
 unless he was the holder at the time. Tindal v. Brown, 1 Term 
 Rep. 167. But this doctrine, after having been followed in other 
 cases (ex parte Barclay, 7 Ves., 597; Stewart v. Kennett, 2 Camp., 
 177), was expressly overruled in the case of Chapman v. Keane (3 
 Adol. & Ellis, 193), in which most of the previous decisions were 
 reviewed. But notice by a stranger is not sufficient. Lawrence v. 
 Miller, 16 X. Y. 235, 237; Chanoine v. Fowler, 3 Wend. 173; 
 Brailsford v. Williams, 15 Md. 151. And a party who has been dis- 
 charged by laches, and cannot in any event bring an action on the 
 instrument, is deemed a stranger for this purpose. Harrison v. 
 Euscoe, 15 L. J. Exch. 110 ; 15 M. i: W. 231. A drawee who refuses 
 acceptance cannot give notice. Stanton v. Blossom, 14 Mass. 116. 
 
 §162. Notice given by agent.— Notice of dishonor 
 may be given by an agent either in his own name (a) or in 
 the name of any party entitled to give notice, whether that 
 party be his principal or not (&). 
 
 (a) Drexler v. McGlynn, 99 Cal. 143. But a notice made out by 
 a notary public and signed by mistake with the name of the maker 
 of the note instead of with his own name, without the authority 
 of the maker, is insufficient. Cabot Bank v. Warner, 92 Mass. 522. 
 
NOTICE OF DISHONOR. 89 
 
 (&) Banks as agents for collection have authority to receive and 
 transmit notices on behalf of the owners of the paper. West River 
 Bank v. Taylor, 34 N. Y. 128, 130; Colt v. Noble, 5 Mass. 167; 
 Haynes v. Birks, 3 Bor. & Pul. 599 ; Eobson v. Bennett, 2 Taunt. 
 388. An agent in giving notice represents and acts on behalf of 
 his principal, and this, though he may be a notary and act in his 
 official character. Lavprence v. Miller, 16 N. Y. 235, 238. 
 
 § 163. Effect of notice given on behalf of holder. — 
 
 Where notice is given by or on behalf of the holder, it 
 enures for the benefit of all subsequent holders and all prior 
 parties who have a right of recourse against the party to 
 whom it is given (a). 
 
 (a) But the holder is not bound to give notice to any one but his 
 immediate indorser. West River Bank v. Taylor, 34 N. Y. 128, 
 131 ; Linn v. Horton, 17 Wis. 150, 153. 
 
 § 164. Effect where notice is given by party entitled 
 thereto. — Where notice is given by or on behalf of a party 
 entitled to give notice, it enures for the benefit of the holder 
 and all parties subsequent to the party to whom notice is 
 given. 
 
 § 165. When agent may give notice. — Where the in- 
 strument has been dishonored in the hands of an agent, he 
 may either himself give notice to the parties liable thereon, 
 or he may give notice to his principal. If he give notice to 
 his principal, he must do so within the same time as if he 
 were the holder, and the principal, upon the receipt of such 
 notice, has himself the same time for giving notice as if the 
 agent had been an independent holder (a). 
 
 (o) Rosson V. Carroll, 90 Tenn. 90. But if the agent has failed 
 to give notice to his principal in due time, the latter is cut off, 
 though he may thereafter use due diligence in communicating 
 notice to antecedent parties. (Id.) 
 
QO THE NEGOTIABLE INSTRUMENTS LAW. 
 
 § i66. When notice sufficient. — A written notice need 
 not be signed (a), and an insufficient written notice may be 
 supplemented and validated by verbal communication. A 
 misdescription of the instrument does not vitiate the notice 
 unless the party to whom the notice is given is in fact misled 
 thereby (b). 
 
 (a) See Bank v. Dibrell, 91 Tenn. 301 ; Spann v. Baltzell, 1 Fla. 
 301 ; Kilgore v. Bulkley, 11 Conn. 362 ; Tobey v. Lenning, 14 Pa. St. 
 483. 
 
 (b) Aiken v. Marine Bank, 16 Wis. 679. Where the instru- 
 ment is misdescribed, the fact that there is no other instrument to 
 which the notice could be applied may be shown by extrinsic evi- 
 dence. Cayuga County Bank v. Worden, 6 N. Y. 19. 
 
 § 167. Form of notice. — The notice may be in writing 
 or merely oral, and may be given in any terms which suffi- 
 ciently identify the instrument, and indicate that it has been 
 dishonored by non-acceptance or non-payment (a). It may 
 in all cases be given by delivering it personally or through 
 the mails (b). 
 
 (a) Sasscer v. Farmers' Bank, 4 Md. 409 ; Brewster v. Arnold, 1 
 Wis. 264. A notice which omits an essential feature of the note, 
 or misdescribes it, is an imperfect one, but not necessarily invalid. 
 It is invalid only where it fails to give that particular information 
 which it would have given but for its particular imperfection ; and 
 even in ease the notice in itself be defective, if, from evidence 
 aliunde of the attendant circumstances, it is apparent that the in- 
 dorser was not deceived or misled as to the identity of the dis- 
 honored instrument, he will be charged. Hodges v. Schuler, 22 
 N. Y. 114; Artisans' Bank v. Backus, 36 N. Y. 106; GiU v. Palmer, 
 29 Conn. 57; Plowland v. Adrian, 29 E". J. Law, 48. To make the 
 notice defective the variance must be such as that, under the cir- 
 cumstances of the case, it conveys no sufficient knowledge to the 
 indorser of the identity of the particular instrument which has 
 been dishonored. Cayuga County Bank v. Worden, 1 N. Y. 413, 
 417; Mills v. Bank of U. S.. 11 Wheat. 431; Bank of Alexandria v. 
 Swaini, 9 Peters, 33. The notice is not necessarily defective be- 
 cause it is silent as to the date and time of payment. Youngs v. 
 
NOTICE OF DISHONOR. 9I 
 
 Lee, 12 N. Y. 551, or fails to state that demand of payment was 
 made, Mills v. Bank of U. S., 11 Wheat. 431, or does not state at 
 whose request it is given, nor who is the owner of the note. Shed v. 
 Brett, 1 Pick. 401. The term "protested" when contained in a 
 notice, with the statement that the holder looks to the indorser for 
 indemnity, fairly and necessarily implies that the note or bill has 
 been dishonored. Brewster v. Arnold, 1 Wis. 264. A note is well 
 described when its maker, payee, date, amount, and time of pay- 
 ment are stated. A printed notice is sufficient, Cuyler v. Stevens, 
 4 Wend. 566 ; Bank of Cooperstown v. Woods, 28 N. Y. 545, and the 
 signature of the notary need not be in writing, but may be printe4. 
 Bank of Cooperstown v. Woods, 28 N. Y. 561; Sussex Bank v. 
 Baldwin, 2 Harr. (N. J.), 487.. But a notice which is barely 
 enough to put the indorser upiJii inquiry is not sufficient. Cook v. 
 Litchfield, 9 N. Y. 2Y9, 281. It must reasonably apprise the party 
 of the particular paper upon which he is sought to be charged. 
 Home Insurance Co. v. Green, 19 N. Y. 518 ; Dodson v. Taylor, 56 
 N. J. Law, 11. In the New York case cited the name of the maker 
 was left blank, and it was held that the notice was not sufficient. 
 Notice that a note is unpaid would not necessarily imply that it 
 is dishonored, because the note might remain unpaid, while in fact 
 it may never have been presented to the maker for payment. Hun- 
 ter V. Van Bomhorst, 1 Md. 504, 510. But such notice might be good 
 if the note is payable at a bank. Id. If the notice indicates that 
 the paper was presented before due, it is not sufficient. Etting v. 
 Schuylkill Bank, 2 Pa. St. 355. The statement that the holder 
 looks for payment to the party to whom notice is sent is not neces- 
 sary; for this is implied from the fact of giving notice. Bank of 
 U. S. V. Carneal, 2 Peters, 543; Mills v. Bank, 11 Wheat. 431, 436; 
 Nelson v. First Nat. Bank, 29 U. S. App. 554; 69 Fed. Eep. 798, 
 801; 16 0. 0. A. 425; Cowles v. Horton, 3 Conn. 523. Where 
 there is no dispute as to the facts, the question of the sufficiency 
 of the notice is a question of law for the court. Cayuga County 
 Bank v. Worden, 6 N. Y. 19. 
 
 (6) The rule of the commercial law was well settled that if the 
 parties resided in the same place the notice must be personal ; that 
 is, must be given to the individual or left at his domicile or place 
 of business. Sheldon v. Benham, 4 Hill, 129; Brown v. Bank of 
 Abingdon, 85 Va. 95 ; Boyd's Admr. v. City Savings Bank, 15 Graft. 
 501, 505; Bell v. Hagerstown Bank, 7 Gill, 216; Westfall v. Farwell, 
 13 Wis. 504, 509. But the courts have been inclined to restrict the 
 general rule, and established many exceptions to it. Bank of 
 
02 THE NEGOTIABLE INSTRUMENTS LAW. 
 
 Columbia v. Lawrence, 1 Peters, 578. In the notes to 1 American 
 Lead. Cas. (402) it is said: "It is obvious that the rule requiring 
 personal notice, where the parties reside in the same place, has 
 lost its reasonable force and exists only by authority. Instead of 
 undermining it by exceptions that conflict with it in principle and 
 render the subject embarrassing in practice, it would be much bet- 
 ter to declare that the rule itself has become obsolete and is abol- 
 ished." But it cannot properly be said that the rule had become 
 obsolete, having been recognized and acted on in many recent as 
 well as older cases, and having in no case been denied or disre- 
 garded. It was, therefore, too firmly established to be abolished 
 by the courts. See Boyd's Admr. v. City Savings Bank, 15 Gratt. 
 601, 505. In New York, service by mail in such cases was author- 
 ized by Laws 1857, Chap. 416. For the construction of the former 
 statute of Wisconsin see Smith v. Hill, 6 Wis. 154; Westfall v. 
 Farwell, 13 Wis. 504. 
 
 § i68. To whom notice may be given. — Notice of dis- 
 honor may be given either to the party himself or to his agent 
 in that behalf (a). 
 
 (a) Fassin v. Hubbard, 55 N. Y. 465, 471 ; Lake Shore National 
 Bank r. Butler Colliery Co., 51 Hun, 63, 68. In Firth v. Thrush, 
 8 Barn. & Cress. 387, the opinion was expressed that authority to 
 indorse negotiable paper carried with it authority to receive notice 
 of its dishonor. And in Persons r. Kruger, 45 App. Div. 187, it 
 was held that a notice of protest- may be served upon an agent of 
 the payee and indorser, where the agent has authority to make and 
 indorse paper, and has authority to act and has acted as the general 
 agent of the payee in the conduct of his business, and has had full 
 charge of the acts and dealings with the bank at which the paper 
 was discounted and the management of the paper. A notice of non- 
 payment sent to the indorser inclosed under seal and delivered by 
 the messenger to one in the employment of the indorser, with 
 directions not to open it, is insufficient. Paine v. Edsell, 19 Pa. St. 
 178. 
 
 § 169. Notice where party is dead. — AVhen any party 
 is dead, and his death is known to the party giving notice, 
 the notice must be given to a personal representative, if there 
 be one, and if with reasonable diligence he can be found (0). 
 
NOTICE OF DISHONOR. 93 
 
 If there be no personal representative, notice may be sent to 
 the last residence or last place of business of the deceased 
 (b). 
 
 (a) Denninger v. Miller, 7 App. Div. 409 ; Bank of Port Jefferson 
 V. Darling, 91 Hun, 236 ; Shoenberger's Executor v. Lancaster Sav- 
 ings Institution, 28 Pa. St. 459; Dodson v. Taylor, 56 N. J. Law, 
 11 ; Massachusetts Bank v. Oliver, 10 Cush. 557 ; Merchants' Bank 
 V. Birch, 17 Johns. 24. See also Boyd's Admr. v. City Savings 
 Bank, 15 Gratt. 501 ; Smalley v. Wright, 40 N. J. Law, 471 ; Good- 
 now V. Warren, 122 Mass. 82; Bealls v. Peck, 12 Barb. 245; Cayuga 
 Co. Bank v. Bennett, 5 Hill, 236; Maspero v. Pedesclaux, 22 La. 
 Ann. 227. 
 
 (h) Goodnow v. Warren, 122 Mass. 82; Merchants' Bank v. 
 Birch, 17 Johns. 25; Lindeman's Exr. v. Guildin, 34 Pa. St. 54. 
 
 § 170. Notice to partners.— Where the parties to be 
 notified are partners, notice to any one partner is notice to 
 the firm (a), even though there has been a dissolution (b). 
 
 (a) But where partners give a promissory note with one of them 
 as maker and the other as indorser, the latter is not liable on his 
 indorsement unless he be duly notified of the dishonor of the note. 
 Poland V. Boyd, 23 Pa. St. 476. 
 
 (6) Hubbard v. Matthews, 54 N. Y. 43, 50; Coster v. Thomason, 
 19 Ala. 717; Slocomb v. Lizardi, 21 La. Ann. 355; Pourth Nat. 
 Bank v. Henschuh, 52 Mo. 207; Seldner v. Mount Jackson Nat. 
 Bank, 66 Md. 488. 
 
 § 171. Notice to persons jointly liible. — Notice to joint 
 parties who are not partners must be given to each of 
 them, unless one of them has authority to receive such notice 
 for the others (a). 
 
 (o) Shepard v. Hawley, 1 Conn. 367; Boyd v. Orton, 16 Wis. 
 495. For the distinction between parties who are partners and 
 joint parties not partners, see Gates v. Beecher, 60 N. Y. 51S, 526. 
 See also Willis v. Green, 5 Hill, 232. But see Sherer v. Easton 
 Bank, 33 Pa. St. 134; Jarnigan v. Stratton, 95 Tenn. 619. 
 
94 THE NEGOTIABLE INSTRUMENTS LAW. 
 
 § 172. Notice to bankrupt. — Where a party has been 
 adjudged a bankrupt or an insolvent, or has made an assign- 
 ment for the benefit of creditors, notice may be given either 
 to the party himself or to his trustee or assignee (a). 
 
 (a) In Callahan v. Kentucky Bank, 82 Ky. 231, it was decided 
 that where the indorser had made a voluntary assignment for the 
 benefit of creditors, notice to the assignee would bind the indorser 
 and his estate. And a similar rule was adopted by the Supreme 
 Court of Tennessee in American Nat. Bank v. Junk Bros., 94 Tenn. 
 634. On the other hand, the Supreme Court of Ohio, in House v. 
 Vinton, 43 Ohio St. E., 346, by a majority opinion, declined to 
 adopt this rule, making a distinction between an assignee under a 
 voluntary general assignment and an assignee in bankruptcy. In 
 this latter case, however, there is a strong dissenting opinion by 
 two of the judges of that court, in which the soundness of the rule 
 as announced by the Kentucky court is earnestly insisted upon. 
 
 § 173. Time within which notice must be given.— 
 
 Notice may be given as soon as the instrument is dishonored 
 (a) ; and unless delay is excused as hereinafter provided, 
 must be given within the times fixed by this act. 
 
 (a) The holder need not wait until the close of business hours, 
 but may send notice at once. Bank of Alexandria v. Swan, 9 
 Peters, 33; Lenox v. Eoberts, 2 Wheat. 373; ex parte Molina, 19 
 Ves. 216; Whitwell v. Brigham, 19 Pick. IIY; Coleman v. Car- 
 penter, 9 Pa. St. 178. 
 
 § 174. Where parties reside in same place.— Where 
 the person giving and the person to receive notice reside in 
 the same place, notice must be given within the following 
 times : 
 
 1. If given at the place of business of the person to receive 
 notice, it must be given before the close of business hours 
 on the day following (a) ; 
 
 2. If given at his residence, it must be given before the 
 usual hours of rest on the day following (&) ; 
 
 3. If sent by mail, it must be deposited in the post-office 
 
NOTICE OF DISHONOR. 95 
 
 in time to reach him in usual course on the day follow- 
 ing (c). 
 
 (a) Adams v. Wright, 14 Wis. 408; Cayuga County Bank v. 
 Hunt, 2 Hill, 236; Marks v. Boone, 24 Fla. 177; Bell v. Hagerstown 
 Bank, 7 Gill, 216; Daniel on Neg. Inst., section 1038. The notice 
 must follow upon the first demand. Eosson v. Carroll, 90 Tenn. 90. 
 
 (fe) Phelps V. Stocking, 21 Neb. 444; Darbishire v. Parkerj 6 
 East. 8. While service at the place of business must be during 
 business hours, service at the residence is not so regulated. It vpill 
 be sufficient if made during any of the hours vifhen members of 
 household are tending to their ordinary affairs. Adams v. Wright, 
 14 Wis. 408, 416. If the service is properly made at the place of 
 business or residence, it is immaterial that the party to be notified 
 did not in fact receive the notice. Adams v. Wright, 14 Wis. 408. 
 
 (c) See note to next section. 
 
 § 175. Where parties reside in different places. — 
 
 Where the person giving and the person to receive notice 
 reside in different places, the notice must be given within the 
 following times : 
 
 1. If sent by mail, it must be deposited in the post-ofifice 
 in time to go by mail the day following the day of dishonor, 
 or if there be no mail at a convenient hour on that day, by 
 the next mail thereafter (a). 
 
 2. If given otherwise than through the post-office, then 
 within the time that notice would have been received in due 
 course of mail, if it had been deposited in the post-office 
 within the time specified in the last subdivision (b). 
 
 (a) Sanderson v. Sanderson, 20 Fla. 292; Eosson v. Carroll, 90 
 Tenn. 90 ; Stephenson v. Dickson, 24 Pa. St. 148 ; Whitwell v. John- 
 son, 17 Mass. 449. In Smith v. Poillon, 87 N". Y. 590, 597, Earl, J., 
 said : " From a careful examination of all these authorities and 
 many others, it is clear that the ]a\v is not precisely settled. It 
 appears that at first it vsras supposed to be necessary that notice of 
 dishonor should be given by the next post after dishonor, on the 
 same day, if there v?as one. That rule was found inconveniently 
 stringent, and then it was held that when the parties lived in 
 different places, between which there was a mail, the notice could 
 
96 THE NEGOTIABLE INSTRUMENTS LAW. 
 
 be posted the next day after the dishonor or notice of dishonor. 
 Some of the authorities hold that the party required to give the 
 notice may have the whole of the next day. Some of them hold 
 that when there are several mails on the next day, it is sufficient 
 to send the notice by any post of that day. Other authorities lay 
 down the rule, in general terms, that the notice must be posted 
 by the first practical and convenient mail of the next day; and that 
 rule seems to be supported by the most authority in this State. 
 What is a practical and convenient mail depends upon circum- 
 stances. It may be controlled by the usages of business and the 
 customs of the people at the place of mailing, and the condition, 
 situation and business engagements of the person required to give 
 the notice. The rule should have a reasonable application in every 
 case, and whether sufficient diligence has been used to mail Jhe 
 notice, the facts being undisputed, is a question of law." But see 
 Burgess V. Vreeland, 4 Zab. (N. J.), 71; Winans v. Davis, 3 Harr. 
 (N. J.), 276. Where it is proper to send the notice by the mail, 
 and it has not arrived at as early a date as in the regular course 
 of the mail it might have come if started at the proper time, the 
 onus is upon the plaintiff to prove that it was put in the mail at 
 the proper time. Friend v. Wilkinson, 9 Gratt. 31. 
 
 (f>) Bank of Columbia v. Lawrence, 1 Peters, 578; Jarvis v. St. 
 Croix Mfg. Co., 23 Me. 287. 
 
 § 176. When sender deemed to have given due 
 notice. — Where notice of dishonor is duly addressed and de- 
 posited in the post-office, the sender is deemed to have 
 given due notice, notv^fithstanding any miscarriage in the 
 mails (a). 
 
 (a) Windham Bank v. Norton, 22 Conn. 213 ; Pier v. Heinrich- 
 soffen, 07 Mo. 163; Bell v. Ilagerstown Bank, 7 Gill, 216; Sasscer v. 
 Farmers' Bank, 4 Md. 409 ; Cook v. Foraker, 193 Pa. St. 461. In 
 Shed V. Brett, 1 Pick. 401, 410, it was said: "The mail being 
 established by standing laws of the Government for the purpose 
 principally of facilitating the transmission of mercantile corre- 
 spondence, it being by far the most usual conveyance of letters 
 and generally the most sure as to time, and safe in every other 
 rcsi>ect, all men who deal in mercantile paper are presumed to 
 assent, and even expect, that such information as they may want 
 will be communicated in this way. And thus the post-office be- 
 
NOTICE OF DISHONOR. 97 
 
 comes their agent ; and if it happened to fail from any unexpected 
 cause, he who made the right use of it by placing his letter there 
 properly directed has done all his duty, and the consequences must 
 fall upon him who has to receive." 
 
 § 177. Deposit in post-office ; what constitutes. — No- 
 tice is deemed to have been deposited in the post-office when 
 deposited in any branch post-office or in any letter-box under 
 the control of the post-office department (o). 
 
 (a) See Nat. Bank v. Shaw, 79 Me. 376; Pearce v. Langfit, 101 
 Pa. St. 507; Johnson v. Brown, 154 Mass. 105; Skilbeck v. Garbett, 
 7 Q. B. 846. In some cases it has been held that delivery to a letter 
 carrier was sufficient. Pearce v. Langfit, 101 Pa. St. 507; Shoe- 
 maker V. Mechanics' Bank, 59 Pa. St. 79. But it was not deemed 
 wise to adopt this rule in the statute. 
 
 § 178. Notice to subsequent party ; time of. — Where 
 a party receives notice of dishonor, he has, after the receipt 
 of such notice, the same time for giving notice to antecedent 
 parties that the holder has after the dishonor (a). 
 
 (a) Howland v. Adrian, 29 N. J. Law, 41; Howard v. Ives, 1 
 Hill, 263; Jameson v. Swinton, 2 Taunt. 224; Shelburne Falls Na- 
 tional Bank v. Townley, 102 Mass 177 ; Seaton v. Scovill, 18 Kans. 
 435; Haly v. Brown, 5 Pa. St. 178; Etting v. Struthers v. Blake, 
 30 Pa. St. 139 ; Schuylkill Bank, 2 Pa. St. 355 ; Bray v. Hadwen, 
 5 Maule & Sel. 68; Linn v. Horton, 17 Wis. 150. If the holder 
 of an indorsed bill or note chooses to rely upon the responsibility 
 of his immediate indorser, there is no necessity for his giving 
 notice to any previous party; and if such notice be properly given 
 in time, by the other parties, it will enure to the benefit of the 
 holder and he may recover thereon against any of them. Thus, if 
 the holder notifies the sixth indorser, and he the fifth, and so on 
 to the first, the latter will be liable to all the parties. And i t is _ ^ O-A 
 no objection to such notice that it is not in fact received (fflfsoon 
 by the first or any prior indorser, as if it had been transmitted 
 directly by the holder or notary, provided it has been seasonably 
 sent by each indorser as he received it. Colt v. Noble, 5 Mass. 
 167; Mead v. Engs, 5 Cow., 303; Howard v. Ives, 1 Hill, 263. And 
 the same degree of diligence must be exercised on the part of 
 
98 THE NEGOTIABLE INSTRUMENTS LAW. 
 
 the indorser in forwarding notice as is required of the holder. 
 Ordinary diligence must be used in both cases. He is not bound 
 to forward notice on the very day upon which he receives it, but 
 may wait until the next. See cases above cited. 
 
 § 179. Where notice must be sent. — Where a party 
 has added an address to his signature, notice of dishonor 
 must be sent to that address (a) ; but if he has not given such 
 address, then the notice must be sent as follows : 
 
 1. Either to the post-office nearest to his place of resi- 
 dence, or to the post-office where he is accustomed to receive 
 his letters (b) ; or 
 
 2. If he live in one place, and have his place of business 
 in another, notice may be sent to either place (c) ; or 
 
 3. If he is sojourning in another place, notice may be sent 
 to the place where he is so sojourning (d). , 
 
 But where the notice is actually received by the party 
 within the time specified in this act, it will be sufficient, 
 though not sent in accordance with the requirements of this 
 section (c). 
 
 (a) Bartlett v. Robinson, 39 N. T. 18Y. In this case the in- 
 dorsement was in the following form : • " Chas. Robinson, 214 E. 
 18th Street." The notice of dishonor sent through the post-office 
 was addressed " Chas. Robinson, Esq., City of New York,'' and 
 was not received by the indorser. Held, that he was discharged. 
 
 (6) Bank of Columbia v. Lawrence, 1 Peters, 578; National Bank 
 V. Cade, 73 Mich. 4-ti.»; Northwestern Coal Co. i;. Bowman, 69 Iowa 
 103; Mercer v. Lancaster, 5 Pa. St. 160; Woods v. Neeld, 44 Pa. St. 
 86; Haly v. Brown, 5 Pa. St. 178; Rand v. Reynolds, 2 Gratt. 171. 
 But if sufficient inquiries have been made, and information re- 
 ceived on which the holder has a right to rely, a mistake as 
 to the nearest or usual post-office does not release the indorser. 
 Moore V. Hardcastle, 11 Md. 486. For a case where the indorser 
 received his mail at two post-offices, see Shelburne Falls Nat. Bank 
 V. Townsley, 107 Mass. 444. 
 
 (f) Bank of U. S. v. Carneal, 2 Peters, 549; Williams v. Bank 
 of U. S., 2 Peters, 96; Montgomery Co. Bank v. Marsh, 7 N. Y. 
 481. The rule that notice might be served at the place of business, 
 
NOTICE OF DISHONOR. 99 
 
 as well as at the residence, was not changed by the former statute 
 of Wisconsin, Laws 1861, Ch. 79. Simus v. Larkin, 19 Wis. 390. 
 
 (d) Chouteau v. Webster, 6 Mete. 1 ; Young v. Durgin, 15 Gray, 
 264; Bigley's Adm'r. v. Cluff, 16 Gratt. 284, 291-292. 
 
 (e) Although the residence or place of business is the usual and 
 proper place for giving notice, it will be good if actually given 
 anywhere. Dickens v. Hall, 87 Pa. St. 379, 380. If the party to 
 be charged receives the notice in due time he cannot object to 
 the means employed. Terrell v. Jones, 15 Wis. 253; Whitford v. 
 Burckmeyer, 1 Gill, 127. But if the holder employs other means 
 than the mail he does so at his own risk. (,Id.) Notice sent by 
 telegraph, for example, would undoubtedly be sufficient if actually 
 received, and an omission to post the notice in due season might 
 be corrected in this way. See Sec. 175. 
 
 § l8o. Waiver of notice.— Notice of dishonor may be 
 waived, either before the time of giving notice has arrived 
 or after the omission to give due notice (a), and the waiver 
 may be express or impHed (b). 
 
 (a) Robinson v. Barnett, 19 Fla. 670. If an indorser, with full 
 knowledge of the laches of the holder in neglecting to protest a 
 bill or note, unequivocally assents to continue his liability, or to 
 be responsible, as though due protest had been made, he is held 
 to have waived the right to object, and will stand in the same 
 position as if he had been regularly charged by presentment, de- 
 mand, and notice. This assent must be clearly established, and 
 will not be inferred from doubtful or equivocal acts or language. 
 It has been frequently held that a promise by the indorser to pay 
 the note or bill, after he has been discharged by the failure to 
 protest it, will bind the indorser, provided he had full knowledge 
 of the laches when the promise was made. A promise made under 
 those circumstances affords the clearest evidence that the indorser 
 does not intend to take advantage of the laches of the holder; and 
 the law, without any new consideration moving between the par- 
 ties, gives effect to the promise. The assent of the indorser to be 
 bound, notwithstanding he has not been duly charged, may be 
 established by any transaction between him and the holder, which 
 clearly indicates this purpose and intention. Boss v. Hurd, 71 
 N. T. 14, 18 ; Turnbull v. Maddux, 68 Md. 579 ; Lewis v. Brehme, 
 33 Md. 412; Bank v. Dibbrell, 91 Tenn. 301; Low v. Howard, 10 
 
lOD THE NEGOTIABLE INSTRUMENTS LAW. 
 
 Cush. 159 ; Smith v. Lownsdale, 6 Oregon 78 ; Whittaker v. Mor- 
 rison, 1 Fla. 25. But it must appear in such case that the in- 
 dorser had Itnowledge of the fact that the holder was in default. 
 Thornton v. Wynn, 13 Wheat. 183; Hunter v. Hook, 64 Bark. 4G9; 
 Gawtry v. Doane, 48 Barb. 148; Schierl v. Baumel, 75 Wis. 75; 
 Glaser v. Eounds, 16 E. I. 235. And in Massachusetts it is held 
 that knowledge on the part of an indorser that demand upon the 
 maker has not been made is material, and must be proved, not- 
 withstanding the fact that he knew that the note had not been 
 paid and that notice of non-payment had not been given, and was 
 aware that he was discharged from all liability. Parks v. Smith, 
 155 Mass. 20, 33 ; Garland v. Salem Bank, 9 Mass. 408 ; Low v. 
 Howard, 10 Cush. 159; S. C. 11 Cush. 268; Kelley v. Brown, 5 
 Gray, 108. 
 
 (b) Jenkins v. White, 147 Pa. St. 303. A waiver will not be 
 presumed without the most satisfactory proof. Lockwood v. Craw- 
 ford, 18 Conn. 374. But it is not essential that the waiver 
 be in writing. When the fact is established by competent evi- 
 dence, a parol waiver is as valid and binding as a written one. 
 The only difference is in the character of the proof. Annville 
 National Bank v. Kettering, 106 Pa. St. 631, 534. A part payment 
 of a note by the indorser, not explained or qualified by any accom- 
 panying circumstances, will be held to be sufficient evidence of 
 waiver of notice. Whittaker v. Morrison, 1 Fla. 25. As to whether 
 an indorser who has taken sufficient security to protect himself 
 against possible loss waives his legal right to require proof of de- 
 mand and notice, the authorities are not agreed. Smith v. Lowns- 
 dale, 6 Ore. 78 ; Llaskell v. Boardman, 8 Allen, 38 ; ]\Ioore v. Alexan- 
 der, 63 App. Div. 100 ; Mechanics' Bank v. Griswold, 7 Wend. 165 ; 
 Brown v. Maffey, 15 East, 222. As to when question of waiver is 
 for the jury, see Valley Nat. Bank v. Uhler, 191 Pa. St. 356; Jones 
 V. Eoberts, 191 Pa. St. 152. 
 
 § i8i. Whom affected by waiver. — Where the waiver 
 is embodied in the instrument itself, it is binding upon all 
 parties (a) ; but where it is written above the signature of 
 an indorser, it binds him only (b). 
 
 (a) Phillips V. Dippo, 93 Iowa 35; Smith v. Pickham, 8 Tex. 
 Civ. App. 320; Bryant v. Merchants' Bank, 8 Bush, 43; Lowry v. 
 
NOTICE OF DISHONOR. lOI 
 
 Steele, 2Y Ind. 168 ; Farmers' Bank of Kentucky v. Ewing, 78 Ky. 
 264; Bryant v. Taylor, 19 Minn. 396. 
 
 (6) Woodman v. Thurston, 8 Cush. 15 Y; Farmers' Bank v. 
 Ewing, 78 Ky. 264. 
 
 § 182. Waiver of protest.— A waiver of protest, 
 whether in the case of a foreign bill of exchange or other 
 negotiable instrument, is deemed to be a waiver not only of 
 a formal protest, but also of presentment and notice of dis- 
 honor (a). 
 
 (a) First Nat. Bank v. Falkenham, 94 Cal. 141. While in a 
 strict and technical sense the term protest when used in reference 
 to commercial paper means only the formal declaration drawn up 
 and signed by a notary ; yet in a popular sense, and as used among 
 men of business, it includes all the steps necessary to charge an 
 indorser; and in waiving protest an indorser is supposed to use 
 Tn ) it t his sense. Coddington v. Davis, 1 N. Y. 186, 189-190; Ann- 
 ville Nat. Bank v. Kettering, 106 Pa. St. 531 ; First Nat. Bank v. 
 Schreiner, 110 Pa. St. 188; Continent Life Ins. Co. v. Barber, 
 50 Conn. 567; Brewster v. Arnold, 1 Wis. 264; Wilkie v. Chandon, 
 1 Wash. 355. But the waiver will not be extended beyond the 
 fair import of the terms ; and hence, a waiver of " notice of protest" 
 will not be deemed a waiver of demand. Sprague v. Fletcher, 8 
 Oregon 367. In construing a pleading a more technical rule 
 will be applied, and an allegation that the instrument was duly 
 protested will not be held to comprehend an averment that notice 
 of dishonor was given to the indorser. Cook v. Warren, 88 N. Y. 37. 
 
 § 183. When notice is dispensed with. — Notice of dis- 
 honor is dispensed with when, after the exercise of reason- 
 able diligence, it cannot be given to or does not reach the 
 parties sought to be charged (a). 
 
 (a) Hobbs v. Straine, 149 Mass. 212 ; Staylor v. Ball, 24 Md. 183. 
 Reasonable diligence is all that is required. The law does not 
 exact every possible exertion which might have been made to effect 
 notice of the dishonor of the paper. Bank of Port Jefferson v. 
 Darling, 91 Hun, 236. But, as said by Lord Ellenborough, the 
 holder cannot allow himself to remain " in a state of passive and 
 
102 THE NEGOTIABLE INSTRUMENTS LAW. 
 
 contented ignorance." Bateman v. Joseph, 2 Campb. 401. Wliat 
 is reasonable diligence will depend upon the circumstances of each 
 case. What would be sufficient in one case might fall short in 
 another. Howland v. Adrian, 29 N. J. Law, 41. And any mode 
 of inquiry will be sufficient which under the circumstances of the 
 case evinces reasonable diligence. Hartford Bank v. Stedman, 3 
 Conn. 494. But bare reliance upon a directory is not suf- 
 ficient. Bacon v. Hanna, 137 K. Y. 379, 3W2. In the ca.^e 
 last cited, the court said : " Merely looking into a directory is not 
 enough. The sources of error in that process are too many and 
 too great. Such books are accurate enough in a general way, and 
 convenient as an aid or assistance, but they are private ventures, 
 created by irresponsible parties, and depending upon information 
 gathered as cheaply as possible and by unknown agents. Their 
 help may be invoked, but, as was said in Lawrence v. Miller, 16 
 X. Y. 231, their error may excuse the notary, but will not charge the 
 defendant. Merely consulting them should not be deemed 
 ' the best information obtained by diligent inquiry.' Greenwich 
 Bank v. DeGroot, 7 Ilun, 210; Baer i: Leppert, 12 Hun, 516." 
 If the holder is ignorant of the address he should apply to the 
 other parties to the instrument for information. University Press 
 V. Williams, 48 App. Div. (IST. Y.) 190. When a notary is em- 
 ployed, it is the duty of the holder to inform him of the indorser's 
 place of residence; and if this be omitted, the notary ought to 
 apply to all the parties to the instrument for information, and 
 especially to the holder himself. Hill i'. Farrell, 3 Greenleaf, 233; 
 Haly V. Brown, 5 Pa. St. 178, 182; Tate v. Sullivan, 30 Md. 404; 
 Staylor v. Ball & Williams, 24 Md. 183. But as the duty to give 
 notice, and therefore the duty of due diligence to discover the 
 residence of the indorser, arises subsequently to the dishonor of 
 the note, it is not an element of due diligence that the owner 
 should previously have communicated his knowledge of the in- 
 dorser's residence to the holder for collection. Bartlett v. Isbell, 
 31 Conn. 297. Where it does not appear that the residence of 
 the indorser has been changed previously to the time of sending 
 the notice, it will be presumed that there has been no change of 
 residence up to that time, ilohlman Co. r. McKane, 00 App. Div. 
 •'"i40 (a case arising under the statute). Where the facts are un- 
 disputed the question of due diligence in seeking to give notice 
 of dishonor is for the court. Haly v. Brown, 5 Pa. St. 178. 
 
 § 184. Delay in giving notice ; how excused. — Delay in 
 
NOTICE OF DISHONOR. IO3 
 
 giving notice of dishonor is excused when the delay is caused 
 by circumstances beyond the control of the holder and not 
 imputable to his default, misconduct or negligence. When 
 the cause of delay ceases to operate, notice must be given 
 with reasonable diligence (a). 
 
 (a) In Martin, v. Ingersoll (8 Pick. 1) the delay was caused by 
 the fact that during the Christmas holidays vessels were not allowed 
 to clear from Havana: Held, that during the continuance of the 
 holidays it was not necessary to write a notice of the dishonor of 
 a bill. 
 
 § 185. — When notice need not be given to drawer. — 
 
 Notice of dishonor is not required to be given to the 
 drawer in either of the following cases : 
 
 1. Where the drawer and drawee are the same person (a) ; 
 
 2. Where the drawee is a fictitious person or a person not 
 having capacity to contract; 
 
 3. Where the drawer is the person to whom the instru- 
 ment is presented for payment; 
 
 4. Where the drawer has no right to expect or require 
 that the drawee or acceptor will honor the instrument (b) ; 
 
 5. Where the drawer has countermanded payment. 
 
 (a) Eoach v. Ostler, 1 Man. & Ry. 120 ; Planters' Bank v. Evans, 
 36 Tex. 592 ; Chicago, etc., E. E. Co. v. West, 37 Ind. 211. When 
 the drawer and the drawee are the same in contemplation of law, 
 the rule applicable to such draft is, that in legal operation it is 
 regarded as a promissory note, payable on demand, and the maker 
 thereof is not entitled to notice. Bailey v. Southwestern E. E. 
 Bank, 11 Fla. 266. Notice is not required to render a firm liable 
 where all the members of the firm are members of the house which 
 drew the bill. West Branch Bank v. Pulner, 3 Pa St. 399. 
 
 (6) Life Insurance Company v. Pendleton, 112 U. S. YO8; Wol- 
 lenweber v. Ketterlinn, 17 Pa. St. 389. Although the drawer has 
 no funds in the hands of the drawee, yet if he has a right to 
 expect to have funds in the hands of the drawee to meet the bill, 
 or if he has a right to expect the bill to be accepted by the drawee 
 in consequence of an agreement or an arrangement with him, or 
 
104 THE NEGOTIABLE INSTRUMENTS LAW. 
 
 if upon taking up the bill he would be entitled to sue the drawee 
 or any other party to the bill, then in every such case he is entitled 
 to strict notice of dishonor. Pitts v. Jones, 9 Fla. 519. 
 
 § i86. When notice need not be given to indorser. — 
 
 Notice of dishonor is not required to be given to an indorser 
 in either of the following cases : 
 
 1. AVhere the drawee is a fictitious person or a person 
 not having capacity to contract, and the indorser was aware 
 of the fact at the time he indorsed the instrument (a) ; 
 
 2. \Miere the indorser is the person to whom the instru- 
 ment is presented for payment (b) ; 
 
 3. Where the instrument was made or accepted for his 
 accommodation (c). 
 
 (a) See note to section 2S. 
 
 (b) In re Swift, 106 Fed. Rep. 65 (a case arising under the 
 statute). 
 
 (c) French v. Bank of Columbia, 1 Cranch, 141; Ross v. Bedell, 
 r. Duer, 4(il'; Blenderman v. Price, 50 N. J. L. 296; Torrey 
 r. Frost, 40 Isle. 74. Where one, as indorser, pi-ocures the note of 
 another to be discounted by a bank for his credit, and at the time 
 the discount is effected makes a distinct promise to the bank to 
 pay the note at maturity, his liability is absolute, not conditional, 
 and protest and notice of non-payment are unnecessary. Sieger v. 
 Second National Bank, 132 Pa. St. 307. 
 
 § 187. Notice of non-payment where acceptance re- 
 fused. — Where due notice of dishonor by non-acceptance has 
 been given, notice of a subsequent dishonor by non-payment 
 is not necessary, unless in the mean time the instrument 
 has been accepted (a). 
 
 (a) Dc la Torre v. Barclay, 1 Stark. 308; Campbell v. French, 
 6 T. R. 200. 
 
 § 188. Effect of omission to give notice of non- 
 acceptance. — An omission to give notice of dishonor by 
 
DISCHARGE OF NEGOTIABLE INSTRUMENTS. I05 
 
 non-acceptance does not prejudice the rights of a holder in 
 due course subsequent to the omission (o). 
 
 (a) The Wisconsin Act contains the following additional pro- 
 vision : " But this shall not be construed to revive any liability dis- 
 charged by such omission." 
 
 § 189. When protest need not be made ; when must 
 be made. — Where any negotiable instrument has been dis- 
 honored it may be protested for non-acceptance or non- 
 payment, as the case may be; but protest is not required, 
 except in the case of foreign bills of exchange (a). 
 
 (a) Bay v. Church, 15 Conn. 129 ; Legg v. Vinal, 165 Mass. 555 ; 
 Tate V. Sullivan, 30 Md. 464; Weems v. Farmers' Bank, 15 Md. 
 231; Ricketts v. Pendleton, 14 Md. 320; Sumner v. Kimball, 2 Wis. 
 524; Stephenson v. Dickson, 24 Pa. St. 148. While protest is not 
 necessary, except in case of foreign bills, it is very convenient in all 
 cases, because it affords the easiest and most certain method of 
 proving the fact of dishonor and the notice to the indorsers. Un- 
 der the statutes of nearly all, if not all of the States, the certificate 
 of the notary making the protest is prima facie evidence of these 
 facts. As to what are foreign bills, see section 213. For other 
 provisions relative to protest, see sections 260-268. 
 
 ARTICLE IX.* 
 Discharge of Negotiable Instruments. 
 
 Section 200. Instrument ; how discharged. 
 
 201. When person secondarily liable on, discharged. 
 
 202. Right of party who discharges instrument. 
 
 * The numbers of the sections of this article in other States than New 
 York are as follows : Colorado, Connecticut, District of Columbia, 
 Florida, Massachusetts, North Carolina, North Dakota, Pennsylvania, 
 Oregon, Tennessee, Utah, Virginia and Washington, 119-125; Mary- 
 land, 127-133; Rhode Island, 127-133; Wisconsin, 1679-1679-6. 
 
I06 THE NEGOTIABLE INSTRUMENTS LAW. 
 
 Section 203. Renunciation by holder. 
 
 204. Cancellation; unintentional; burden of proof. 
 
 205. Alteration of instrument; effect of. 
 
 206. What constitutes a material alteration. 
 
 § 200. Instrument ; how discharged.* — A negotiable 
 instrument is discharged : 
 
 1. By payment (a) in due course by or on behalf of the 
 principal debtor (b) ; 
 
 2. By payment in due course by the party accommodated, 
 where the instrument is made or accepted for accommoda- 
 tion; 
 
 3. By the intentional cancellation thereof by the holder 
 
 (0; 
 
 4. By any other act which will discharge a simple contract 
 for the payment of money (d) ; 
 
 5. When the principal debtor becomes the holder of the 
 instrument at or after maturity in his own right (r). 
 
 (a) The possession of a bill of exchange by the acceptor after 
 it has been in circulation is prima facie evidence that it has been 
 paid by him. Baring v. Clark, 19 Pick. 220. So the possession 
 of a promissory note by the maker. First Nat. Bank v. Harris, 
 7 Wash. 139; Perez 1;. Bank of Key West, 36 Fla. 467. But see 
 Miller v. Kreiter, 76 Pa. St. 7s ; Eckert v. Cameron, 7 Wright, 120. 
 When the holder of a bill of exchange,' accepted for the accommo- 
 dation of the drawer, sends it to a bank for collection, and the bank, 
 when the bill comes to, maturity, pays the amount thereof to the 
 credit of the holder, this is not such a payment as discharges 
 the acceptor ; but the bank succeeds to the rights of the holder, and 
 may maintain an action on the bill against the acceptor. Pacific 
 Bank v. Mitchell, 9 Met. 297. 
 
 (b) A payment made to the holder of a promissory note by an 
 indorser, not as agent for the maker, but simply in discharge of 
 his obligation as indorser, where the note was executed by the 
 
 * Through an error in engrossing the words in the hcadnote have 
 been transposed. It was intended to read, " How instrument dis- 
 charged." The error was not corrected by the Act of 
 
DISCHARGE OF NEGOTIABLE INSTRUMENTS. IO7 
 
 maker for value, does not enure to the benefit of the latter, and in 
 an action upon the note he is liable for the whole amount thereof, 
 notwithstanding the payment. Madison Square Bank v. Pierce, 
 137 N. Y. 444. In the case cited it was said : " To the extent of 
 the money paid, the indorser becomes equitably entitled to be sub- 
 stituted to the rights . and remedies of the holder, and becomes, 
 pro tantOj the beneficial owner of the debt; so that the maker's 
 obligation to pay the note in full, at first due to the holder solely 
 in his own right, becomes, after the part payment by the indorser, 
 still wholly due to the holder, but partly in his own right and 
 partly as trustee for the indorser. A court of law cannot split 
 the note into parts, and must act upon the legal interest and 
 ownership.'' For cases where payment made by person secondarily 
 liable, see section 202. 
 
 (c) See section 204. 
 
 (d) Thus, the release of one joint maker will operate to dis- 
 charge the other joint parties. Crawford v. Roberts, 8 Oregon 324. 
 But to have this effect the release must be under seal. Shaw v. 
 Pratt, 22 Pick. 305. 
 
 (e) He must become the holder in the same right in which he 
 executed the instrument. If he should become the holder in a 
 representation capacity, for example, as executor, the instrument 
 would not be discharged. Nash v. DeFreville (1900), 2 Q. B. 72. 
 See section 80. 
 
 § 201. When persons secondarily liable on, dis- 
 charged. — A person secondarily liable on the instrument is 
 discharged : 
 
 1. By any act which discharges the instrument; 
 
 2. By the intentional cancellation of his signature by the 
 holder; 
 
 3. By the discharge of a prior party (a) ; 
 
 4. By a valid tender of payment made by a prior party 
 
 5. By a release of the principal debtor, unless the holder's 
 right of recourse against the party secondarily liable is ex- 
 pressly reserved (c) ; /;<xv / "^> ■>■- '^"^'3»^ 
 
 6. By any agreement binding upon the holder to extend 
 the time of payment or to postpone the holder's right to 
 
I08 THE NEGOTIABLE INSTRUMENTS LAW. 
 
 enforce the instrument* (d), unless the right of recourse 
 against such party is expressly reserved (c). 
 
 (a) Shutts V. Fingar, 100 N. T. 539 ; Couch v. Waring, 9 Conn. 
 261 ; Gennis v. Weighley, 114 Pa. St. 191. It is a general rule that 
 whatever discharges the inal^;er or acceptor discharges the drawer 
 and indorser, who are sureties, for the contract which they under- 
 took to assume thus passes out of existence hy the act of the bene- 
 ficiary. And whatever discharges a prior indorser discharges all 
 subsequent indorsers, for the reason that he stood between them 
 and the holder, and on making payment each one could have had 
 recourse against him, but from which his discharge precludes them. 
 The contracts of the parties are said to be like the links of a 
 pendant chain ; if the holder dissolves the first, every link falls with 
 it. Shutts V. Fingar, supra. But this rule, of course, does not 
 apply where a prior party has been discharged by the laches of the 
 intermediate indorser; for the holder need give notice only to his 
 immediate indorser. West Eiver Bank v. Taylor, 34 IST. T. 128, 
 131. And after the responsibility of an indorser has been fixed 
 no act or dealing of the holder with the maker will discharge the 
 indorser, except it be such an act as will defeat, impair or delay 
 the right of the indorser, on paying the note, to recover against 
 the maker. Farmers' Bank v. Sprigg, 11 Md. 390. Where the 
 holder of a note, with several indorsers in blank, sues the maker 
 and writes over the name of the first indorser an order to pay 
 to himself, the holder, but without striking out the names of the 
 subsequent indorsers, he does not thereby discharge them, and 
 therefore one of them who pays the amount of the note to the 
 holder may sue any of the prior parties. Cole v. Cushing, 8 
 Pick. 48. An indorser is discharged where the holder has allowed 
 the statute of limitations to run against the maker. Shutts v. 
 Fingar, 100 N. Y. 539. 
 
 (b) Spurgeon v. Smiths, 114 Ind. 453. In the Wisconsin Act 
 the following is added: "4a. By giving up or applying to other 
 purposes collateral security applicable to the debt, or, there being 
 in the holder's hands or within his control the means of complete 
 or partial satisfaction, the same are applied to other purposes." 
 
 (c) By an express reservation of the holder's rights against the 
 
 * By an error in engrossing, the words " unless made with the assent 
 of the party secondarily Hable, or" after the word " instrument" are 
 omitted in the New York Act. They were not supplied by Laws 1898, 
 Chap. 336. 
 
DISCHARGE OF NEGOTIABLE INSTRUMENTS. lOQ 
 
 drawer or indorsers, their rights against the maker or acceptor 
 are reserved by implication. Gloucester Bank v. Worcester, 10 
 Pick. 528; Tombeckbe Bank v. Stratton, 7 Wend. 429; Stewart v. 
 Eden, 2 Oai. 121. The giving of a judgment or other security by 
 the maker or a prior indorser does not discharge a subsequent in- 
 dorser. First Nat. Bank v. Peltz, 176 Pa. St. 513; Guarantee Co. 
 V. Craig, 155 Pa. St. 343. 
 
 (d) Any extension, no matter how short, by a valid agreement, 
 will discharge the indorser or surety. Gary v. White, 52 N. Y. 138 ; 
 Nightingale v. Meginnis, 34 N. J. Law, 461; Siebeneck v. Anchor 
 Savings Bank, 111 Pa. St. 187; In re Bishop's Estate, 195 Pa. 
 St. 85; Eridenberg v. Eobinson, 14 Fla. 130. But there must 
 be an enforcible agreement to this effect, either expressed or 
 implied. (Id.) Ordinarily the taking of a new note from 
 the debtor, payable at a future day, suspends the right of ac- 
 tion upon the original demand until the maturity of the new 
 note, and hence discharges a non-assenting surety. Hubbard v. 
 Gurney, 64 N. T. 450; Place v. Mcllvain, 38 N. Y. 960; Eriden- 
 berg V. Eobinson, 14 Fla. 130. But when the new security is pay- 
 able on demand no presumption arises of an agreement. Board 
 of Education v. Eonda, 77 N. Y. 350, 362. And where new security 
 is taken merely as collateral, the fact that the collateral may not 
 be enforcible until a definite time in the future does not operate 
 to extend the time of payment of the principal debt or suspend the 
 right to sue on the original security. Ealkill National Bank v. 
 Sleight, 1 App. Div. 189, 191; United States v. Hodge, 6 How. 
 (U. S.) 279. Mere indulgence to the maker or acceptor will not 
 discharge a drawer or indorser; there must be an agreement to 
 extend the time of payment binding upon the holder. Smith v. 
 Erwin, 77 N. Y. 466; Bank of Utica v. Ives, 17 Wend. 501; Crawr 
 ford V. Millspaugh, 13 Johns. 87; Lockwood v. Crawford, 18 Conn. 
 376; Eridenberg v. Eobinson, 14 Ela. 130. And for this purpose 
 the contract must be supported by a valid consideration. Gary v. 
 White, 52 N. Y. 138. A part payment by the maker is not such a 
 consideration, Halliday v. Hart, 30 N. Y. 474; nor is an agreement 
 to pay interest, since it is merely a promise to do what the party 
 is already bound to do. Wilson v. Powers, 130 Mass. 127 ; Stuber v. 
 Schack, 83 HI. 192. An indorser is not discharged by extending 
 the maker's time to answer. German- Am. Bank ■;;. Niagara Cycle 
 Co., 13 App. Div. 450. The ground upon which an agreement to 
 give time to the maker, made by the holder without the consent 
 of the indorsers, upon a valid consideration, is held to be a dis- 
 
no THE NEGOTIABLE INSTRUMENTS LAW. 
 
 charge of the indorsers, is solely this, that the holder thereby 
 impliedly stipulates not to pursue the indorsers, or to seek satis- 
 faction from them in the intermediate period. It can never apply 
 to any case where a contrary stipulation exists between the parties. 
 Hence, if the agreement for delay expressly saves and reserves the 
 rights of the holder in the intermediate time against the indorsers, 
 it will not discharge the latter. In such case the very ground of 
 the objection is removed, for their rights are not postponed against 
 the maker if they should take up the note. liagey v. Hill, 75 
 Pa. St. 108, 111. The burden of showing that the indorser as- 
 sented to such extension of time is on the party seeking to charge 
 him. Siebeneck v. Anchor Savings Bank, 111 Pa. St. 187. It has 
 been held that time given to an indorser will not discharge an 
 accommodation maker. Delaware County Trust Co. v. Title Ins. 
 Co., 199 Pa. St. 17. The statute has not changed this rule. See 
 Sec. 3. 
 
 (e) Wagman v. Hoag, 14 Barb. 233, 239; Eockville National 
 Bank v. Holt, 58 Conn. 526 ; Bank v. Simpson, 90 N. C. 469 ; Minir 
 V. Crawford, L. R. 2 Scotch Appeals, 456 ; Kenworthy v. Sawyer, 
 125 Mass. 28; Morse v. Huntington, 40 Vt. 488; Hagey v. Hill, 75 
 Pa. St. 108. In the Wisconsin Act, for subdivision 6 the follow- 
 ing is substituted : " By an agreement binding upon the holder to 
 extend the time of payment, or to postpone the holder's right to 
 enforce the instrument unless made with the assent, prior or sub- 
 sequent, of the party secondarily liable, unless the right of recourse 
 against such party is expressly reserved, or unless he is fully 
 indemnified." 
 
 § 202. Right of party who discharges instrument. — 
 
 Where the instrument is paid by a party secondarily liable 
 thereon, it is not discharged; but the party so paying it is 
 remitted to his former rights as regards all prior parties, 
 and he may strike out his own and all subsequent indorse- 
 ments, and again negotiate the instrument (a), except: 
 
 1. Where it is payable to the order of a third person, 
 and has been paid by the drawer ; and 
 
 2. Where it was made or accepted for accommodation, 
 and has been paid by the party accommodated (b). 
 
 (a) Where an indorser takes up the instrument, after it has been 
 
DISCHARGE OF NEGOTIABLE INSTRUMENTS. Ill 
 
 dishonored, by paying the amount of it to the holder, the transac- 
 tion is in effect a repurchase of the paper, and not a payment of 
 it, and the indorser becomes vested again with all the rights which 
 he formerly had against prior parties. French v. Jarvis, 29 Conn. 
 347. And the paper retains its negotiable character. Gould v. 
 Eager, 17 Mass. 615; Davis v. Miller, 14 Graft. 1. And although 
 in the case of accommodation paper the indorsee may not pay 
 actual value at the time of his indorsement, yet if he pays the 
 instrument and gets possession of it he is deemed a holder. Eein- 
 hart V. Schall, 69 Md. 352. It is necessary to strike out all sub- 
 sequent indorsements; for after the paper has once been paid it 
 cannot be negotiated again if such negotiation would make any 
 of the parties liable who would otherwise be discharged. Goodner 
 V. Maynard, 7 Allen, 456 ; Citizens' Bank v. Say, 80 Va. 436. And 
 by putting the note in circulation again the liability of subse- 
 quent parties is not revived. Davis v. Miller, 14 Gratt. 1. A 
 note coming into the hands of the maker under such circumstances 
 as to raise a presumption of its payment cannot be pledged by him 
 as collateral so as to bind a surety, although the not© may not 
 have matured at the time of its re-issue. First National Bank v. 
 Harris, 7 Wash. 139. Where payment is made by the second in- 
 dorser, the case is within the provisions of the section. Twelfth 
 Ward Bank v. Brooks, 63 App. Div. 220. See Sec. 200. 
 
 (i) Cottrell v. Watkins, 89 Va. 801. Where the instrument is 
 paid by an accommodation acceptor it is discharged, and becomes 
 commercially dead, but is evidence in the hands of the payer to 
 charge the real debtor. First Nat. Bank v. Maxfield, 83 Me. 576. 
 So, where one of several accommodation makers pays the note, 
 it remains in his hands evidence of his right to contribution from 
 his co-sureties. This right may be assigned by him, and the deliv- 
 ery of the note by him to a third person for a valuable considera- 
 tion raises a presumption of an intention to pass this right to 
 the transferee. Dillenbeck v. Bygert, 97 N. T. 303. Where an 
 accommodation indorser for the payee has paid the note he may 
 recover the amount of an accommodation maker. Laubach v. 
 Pursell, 35 N. J. Law, 434. And where a second indorser of a 
 note has paid and taken it up he becomes a holder for value, and 
 may maintain an action to recover the amount thereof of the first 
 indorser, although both are accommodation indorsers. Kelly v. 
 Burroughs, 102 N. Y. 93. See also Kaschner v. Conklin, 40 
 Conn. 81. See Sec. 118. 
 
112 THE NEGOTIABLE INSTRUMENTS LAW. 
 
 § 203. Renunciation by holder.— The holder may ex- 
 pressly renounce his rights against any party to the instru- 
 ment, before, at or after its maturity. An absolute and 
 tmconditional renunciation of his rights against the princi- 
 pal debtor made at or after the maturity of the instrument, 
 discharges the instrument. But a renunciation does not 
 affect the rights of a holder in due course without notice. A 
 renunciation must be in writing, unless the instrument is de- 
 livered up to the person primarily liable thereon. 
 
 § 204. Cancellation ; unintentional ; burden of proof. 
 
 — A cancellation made unintentionally, or under a mistake, 
 or without the authority of the holder, is inoperative; but 
 Avhere an instrument or any signature thereon appears to 
 have been canceled the burden of proof lies on the party 
 who alleges that the cancellation was made unintentionally, 
 or under a mistake or without authority. 
 
 § 205. Alteration of instrument ; effect of. — Where a 
 negotiable instrument is materiall)- altered without the assent 
 of all parties liable thereon, it is avoided, except as against 
 a party who has himself made, authorized or assented to 
 the alteration and subsequent indorsers (a). But when an 
 instrument has been materially altered and is in the hands of 
 a holder in due course, not a party to the alteration, he may 
 enforce payment thereof according to its original tenor (b). 
 
 (a) See Jeffreys v. Eosenfeld, (Mass.) 61 N. E. Eep. 49, where 
 the effect of this provision was discussed, but not decided. 
 The burden of explaining an apparent alteration is upon 
 the party producing- tlie paper. Gowdey v. Robbins, 3 App. Div. 
 353; Town of Solon v. Williamsburgh Savings Bank, 114 N. T. 
 129, 135; Simpson v. Davis, 119 Mass. 269; Gettysburg JSTational 
 Bank V. Chisolm, 169 Pa. St. 564;" Citizen's Nat. Bank v. Will- 
 iams, 174 Pa. St. 66 ; Paine v. Edsell, 19 Pa. S<t. ITS. If the paper 
 appears to have been altered he must explain this appearance; but 
 if, on the other hand, however material in fact the alteration may 
 be, there is upon the face of the paper no evidence or mark raising 
 
DISCHARGE OF NEGOTIABLE INSTRUMENTS. 1 13 
 
 a suspicion thereof, the holder is not called upon to make an ex- 
 planation or to introduce any testimony until the alteration has 
 been shown by sufficient evidence outside of the paper. Harris v. 
 The Bank of Jacksonville, 20 Fla. 501. 512. 
 
 (&) Willis 1). Wilson, 3 Oregon 308. This changes the lavr in some 
 States. Prior to the statute the rule in many jurisdictions was that 
 where the alteration was made without the consent of the party 
 sought to be charged, there could be no recovery even by an inno- 
 cent holder for value, and even though he sought to recover on the 
 instrument as it was before the alteration. Gettysburg National 
 Bank V. Chisolm, 169 Pa. St. 504; Hartley v. Carboy, 150 Pa. St. 
 23; Wood v. Steele, 6 Wall. 80; Citizens' National Bank v. Eich- 
 mond, 121 Mass. 110. In the case first cited it was said : " In 
 the present case the alteration was not probably made by an 
 agent of the payee, and it was entirely without the knowledge 
 and consent of the defendant, who was the maker of the note. 
 Of course the payee could not recover on the note for any amount, 
 because it was an altered instrument, and is avoided altogether 
 by public policy. Certainly he could not restore life to it by 
 passing it over to an indorsee." But compare Gleason v. Hamilton, 
 138 N. Y. 353; Town of Solon v. Williamsburgh Savings Bank, 
 114 N. Y. 122, 134. In cases of mere spoliation, where the original 
 tenor was apparent upon inspection, it has been held sufficient 
 to declare on the instrument in such form, and upon the spoliation 
 being shown, there is no variance between the allegation and the 
 proof. Drum v. Drum, 133 Mass. 566. A similar rule would now 
 seem to apply where there was proof that the plaintiff was not a 
 party to the alteration. 
 
 § 206. What constitutes a material alteration. — Any 
 
 alteration which changes : 
 
 1. The date (a) ; 
 
 2. The sum payable, either for principal (b) or interest 
 
 (c); 
 
 3. The time (d) or place (c) of payment; 
 
 4. The number or the relations of the parties (f) ; 
 
 5. The medium or currency in which payment is to be 
 made (g) ; 
 
 Or which adds a place of payment where no place of 
 payment is specified (h), or any other change or addition 
 
114 ""^H^ NEGOTIABLE INSTRUMENTS LAW. 
 
 which alters the effect of the instrument in any respect, is a 
 material alteration (i). 
 
 (a) National Ulster County Bank v. Madden, 114 K. Y. 280; 
 Crawford v. West Side Bank, 100 N. Y. 50, 50; Wood v. Steele, 
 6 Wall. 80; Newman v. King (Ohio), 43 N. E. Eep. 083. 
 
 (6) Batchelder v. Wliite, 80 Va. 103. This is so, though the 
 amount is lessened, as where $500 was changed to $400. Hewins v. 
 Cargill, 07 Me. 554. 
 
 (c) Gettysburg National Bank v. Chisolm, 109 Pa. St. 504. In 
 this case the words " with interest at six per cent." were interlined. 
 
 (d) Rogers v. Vosburgh, 87 N. Y. 208 ; Weyman v. Yeomans, 84 
 111. 403 ; Miller v. Gilleland, 19 Pa. St. 119. 
 
 (e) Tidmarsh v. Grover, 1 Maule & S., 735; Bank of Ohio Valley 
 V. Lockwood, 13 W. Va. 392. 
 
 (f) Hoffman o. Planters' Nat. Bank, (Va.) 3i) S. E. Eep. 134 (a 
 case arising under the statute). In ileCaughey v. Smith, 27 N. Y. 
 39, and Brownell v. Winnie, 29 N. Y. 400, it was held that the addi- 
 tion of another name as maker, where there was but one, was not 
 a material alteration, the additional maker being regarded as a 
 guarantor. The statute has probably changed this rule. 
 
 (g) Angle v. Insurance Company, 92 U. S. 330; Church v. How- 
 ard, 17 Hun, 5 ; Darwin v. Eippey, 03 N. C. 318 ; Bogarth v. Breed- 
 love, 39 Tex. 561. Thus, adding to a note the words " in gold 
 coin" is a material alteration. Wills v. Wilson, 3 Oregon 303. 
 
 (h) Whitesides v. Northern Bank, 10 Bush, 501. 
 
 (0 Weyerhauser v. Dun, 100 N. Y. 150. Addition of special 
 agreement. In some States it has been held that the addition of 
 the name of an attesting witness is a material alteration. Smith 
 V. Dunham, 8 Pick. 246; Homer v. Wallis, 11 Mass. 310; Thorn- 
 ton V. Appleton, 29 Me. 298; Brackett v. Mountfort, 11 Me. 115. 
 But in those States the attestation extends the liability of 
 the maker under the statute of limitations, and so changes to 
 some extent the nature of the contract and enlarges its obliga- 
 tions. In other States where such addition would not have this 
 effect the alteration would not be material. Puller v. Green, 64 
 Wis. 159. 
 
BILLS OF EXCHANGE ; FORM AND INTERPRETATION. II5 
 
 ARTICLE X.* 
 Bills of Exchange; Form and Interpretation. 
 
 Section 210. Bill of exchange defined. 
 
 211. Bill not an assignment of funds in hands of 
 
 drawee. 
 
 212. Bill addressed to more than one drawee. 
 
 213. Inland and foreign bils of exchange. 
 
 214. When bill may be treated as promissory note. 
 
 215. Drawee in case of need. 
 
 § 210. Bill of exchange defined. — A bill of exchange 
 is an unconditional order in writing addressed by one per- 
 son to another, signed by the person giving it, requiring the 
 person to whom it is addressed to pay on demand or at a 
 fixed orf determinable future time a sum certain in money 
 to order or to bearer. 
 
 Jarvis ■;;. Wilson, 46 Conn. 91. 
 
 § 211. Bill not an assignment of funds in hands of 
 drawee. — A bill of itself does not operate as an assign- 
 ment of the funds in the hands of the drawee available for 
 the payment thereof, and the drawee is not liable on the bill 
 unless and until he accepts the same (a). 
 
 (a) Harris v. Clark, 3 N. T. 93 ; Mandeville v. Welch, 5 Wheat. 
 286; Brill v. Tuttle, 81 N. Y. 454; Alger v. Scott, 54 N. T. 14; 
 Hunger v. Shannon, 61 N. Y. 251 ; Commonwealth v. Am. Life Ins. 
 Co. 167 Pa. St. 586 ; Eeilly v. Daly, 159 Pa. St. 605 ; Bailey v. South- 
 western E. E. Bank, 11 Pla. 266. But when, for a valuable con- 
 sideration from the payee, the order is drawn upon a third party 
 
 * The numbers of the sections of this article in other States than New 
 York are as follows : Colorado, Connecticut, District of Columbia, 
 Florida, Massachusetts, North Carolina, North Dakota, Pennsylvania, 
 Oregon, Tennessee, Utah, Virginia and Washington, 126-131 ; Mary- 
 land, 145-150; Rhode Island, 134-139; Wisconsin, 1680-1680-6. 
 
 t The word " or" omitted in the original New York statute supplied 
 by Laws N. Y. 1898, c. 336. 
 
Il6 THE NEGOTIABLE INSTRUMENTS LAW. 
 
 and made payable out of a particular fund, then due or to beco.iie 
 due, from liim to the drawer, the delivery of the order to the 
 payee operates as an assignment pro tanto of the fund, and the 
 drawee is hound, after notice of such assignment, to apply the 
 fmid, as it accrues, to the payment of the order and to no other 
 purpose, and the payee may, by action, compel such application. 
 Brill V. Tuttle, 81 N. Y. 454, 457. An intention to make an 
 assignment of the funds in the hands of the drawee may be in- 
 ferred from the circumstances attending the delivery of the draft 
 and the conduct of the parties. Tliroop Grain Cleaner Co. v. 
 Smith, 110 N. T. S;3. 
 
 § 212. Bill addressed to more than one drawee. — A 
 
 bill may be addressed to two or more drawees jointl_v, 
 whether they are partners or not; but not to two or more 
 drawees in the alternative or in succession (a). 
 
 (a) In the Wisconsin Act the words " or succession" are omitted. 
 
 § 213. Inland and foreign bills of exchange. — An in- 
 land bill of exchange is a bill which is, or on its face purports 
 to be, both drawn and payable within this State. Any other 
 bill is a foreign bill (a). Unless the contrary appears on the 
 face of the bill, the holder may treat it as an inland bill. 
 
 (a) Commercial Bank of Kentucky v. Varnum, 49 X. T. -C9; 
 Life Insurance Company r. Pendleton, 112 U. S. 696; Armstrong v. 
 American Ex. Xatinnal Bank, 133 U. S. 433; Buckner v. Finley, 
 2 Peters, 586; Joseph v. Solomon, 19 Pla. 632; Phcenix Bank v. 
 Ilussey, 12 Pick. 4s3; Thompson v. Commercial Bank, 3 Caldw. 
 49 ; Union Bank v. Fowlkcs, 2 Sneed, 556. 
 
 § 214. When bill may be treated as promissory note. 
 
 — Where in a bill the drawer and drawee are the same per- 
 son, or where the drawee is a fictitious person, or a person 
 not ha\-ing capacity to contract, the holder may treat the 
 instrument, at his option, either as a bill of exchange or a 
 promissory note (a). 
 
 (a) See section 36. 
 
ACCEPTANCE OF BILLS OF EXCHANGE. IT/ 
 
 § 215. Referee in case of need. — The drawer of a bill 
 and any indorser may insert thereon the name of a per- 
 son to whom the holder may resort in case of need, that is 
 to say, in case the bill is dishonored by non-acceptance or 
 non-payment (a). Such person is called the referee in cas6 
 of need. It is in the option of the holder to resort to the 
 referee in case of need or not as he may see fit. 
 
 (a) The usual form is : " In case of need, apply to Messrs. C 
 and D, at E." Chitty on Bills, 165. 
 
 ARTICLE XL* 
 Acceptance of Bills of Exchange. 
 
 Section 220. Acceptance, how made, et cetera. 
 
 221. Holder entitled to acceptance on face of bill. 
 
 222. Acceptance by separate instrument. 
 
 223. Promise to accept; when equivalent to accept- 
 
 ance. 
 
 224. Time allowed drawee to accept. 
 
 225. Liability of drawee retaining or destroying bill. 
 
 226. Acceptance of incomplete bill. 
 
 227. Kinds of acceptances. 
 
 228. What constitutes a general acceptance. 
 
 229. Qualified acceptance. 
 
 230. Rights of parties as to qualified acceptance. 
 
 § 220. Acceptance ; how made, et cetera. — The ac- 
 ceptance of a bill is the signification by the drawee of his 
 assent to the order of the drawer (a). The acceptance must 
 
 * The numbers of the sections in other States than New York are as 
 follows : Colorado, Connecticut, District of Columbia, Florida, Massa- 
 chusetts. North Carolina, North Dakota, Pennsylvania, Oregon, Ten- 
 nessee, Utah, Virginia and Washington. 132-142; Maryland, 151-161; 
 Rhode Island, 140-150; Wisconsin, ,i68o/-i68o/'. 
 
Il8 THE NEGOTIABLE INSTRUMENTS LAW. 
 
 be in writing and signed by the drawee* (b). It must not 
 express that the drawee will perform his promise by any 
 other means than the payment of money. 
 
 (a) The acceptance is a response to the direction contained in 
 the bill, and the language of the bill and the acceptance are hut 
 parts of one entire contract in writing. Meyer v. Beardsley, 29 
 N. J. Law, 2'Mj. But this contract is regarded as a new contract. 
 Superior City v. Ripley, 138 IT. S. 93. The usual mode of making 
 an acceptance is by writing the word "accepted," and subscrib- 
 ing the drawee's name. Byles on Bills, 190. But the drawee's 
 sis'iiature alone is sufficient. Spear v. Pratt, 2 Hill, 582; Wheeler 
 V. Webster, 1 E. D. Smith, 1. 
 
 (b) 1 Rev. Stat. N. Y., T68, section 6; Laws of Pa. 1S81, 17. 
 The English Bills of Exchange Act, following previous English 
 statutes (1 and 2 George IV., C. 78; 19 and 20 Victoria, C. 78) 
 requires that the acceptance be written on the bill. The Amer- 
 ican statutes do not generally require this; and such a require- 
 ment would sometimes work inconvenience. Thus, it has been held 
 that a bank can accept a check by telegraph, and such an ac- 
 ceptance has been deemed to be within the terms of a statute 
 requiring acceptances to be in writing, North Atchison Bank v. 
 Garretson, 51 Fed. Rep. KIT; but to require the acceptance to be 
 on the instrument itself would preclude the giving of an accept- 
 ance by telegraph either by a bank or by any other drawee. 
 
 § 221. Holder entitled to acceptance on face of bill. 
 — The holder of a bill presenting the same for acceptance 
 may require that the acceptance be written on the bill, and if 
 such request is refused, may treat the bill as dishonored. 
 
 1 Rev. Stat. N. T., section 9. 
 
 § 222. Acceptance by separate instrument. — Where 
 an acceptance is written on a paper other than the bill itself, 
 it does not bind the acceptor, except in favor of a person to 
 
 * The word " drawee '' substituted for " drawer " by Laws N. Y. 
 1898, c. 336. 
 
ACCEPTANCE OF BILLS OF EXCHANGE. II9 
 
 whom it was shown and who, on the faith thereof, receives 
 the bill for value. 
 
 1 Rev. Stat. N. Y., 768, section 7. 
 
 § 223. Promise to accept ; when equivalent to accept- 
 ance.' — An unconditional promise in writing (o) to accept 
 a bill before it is drawn is deemed an actual acceptance in 
 favor of every person who, upon the faith thereof, receives 
 the bill for value (b). 
 
 (a) An absolute authority to draw is equivalent to an uncon- 
 ditional promise to pay the draft vfithin the statute. Euiz v. 
 Eenauld, 100 N. Y. 256; Merchants' Bank v. Griswold, 72 N. Y. 
 472, 479 ; Barney v. Wortington, 37 N. Y. 112. The promise must 
 be unconditional. Germania National Bank v. Tooke, 101 N. Y. 
 442; Shover v. Western Union Telegraph Co., 57 N. Y. 459, 463. 
 But restrictions as to the time or amount do not prevent the 
 promise from being treated as unconditional and absolute as to 
 drafts within the limitation. Bank of Michigan v. Ely, 17 Wend. 
 508; Ulster Co. Bank v. McFarlan, 5 Hill, 432. It is also held 
 that an authority given to an agent to draw " from time to 
 time, as may be necessary in the purchase of lumber," or as " you 
 want more funds," operates simply as an instruction to the agent, 
 and does not, as to persons dealing with him in good faith, con- 
 stitute a condition. Merchants' Bank v. Griswold, 72 N. Y. 472 ; 
 Bank of Michigan v. Ely, 17 Wend. 508. The party dealing with 
 the agent may rest upon his representation, express or implied, 
 that the draft is in the business of the principal, or that the funds 
 are needed, and he is protected, although it turns out that the 
 representation is false. N. Y. & IST. H. R. E. Co. v. Schuyler, 34 
 N. Y. 30; Merchants' Bank v. Griswold, 72 N. Y. 472. The re- 
 quirement that the promise shall be in writing is wholly statutory. 
 At common law an oral promise was sufficient. Dull v. Bricker, 
 76 Pa. St. 255; Scudder v. Union Nat. Bank, 91 U. S. 406; Williams 
 V. Winans, 2 Gr. (N. J.) 239; Jarvis v. Wilson, 46 Conn. 91. 
 A telegraphic authority is sufficient. Johnson v. Clark, 39 N. Y. 
 216; North Atchison Bank v. Garretson, 51 Eed. Eep. 167; Frank- 
 lin Bank v. Lynch, 52 Md. 270. As to countermanding by tele- 
 graph an offer to accept, see First Nat. Bank. v. Clark, 61 Md. 
 400. A promise to accept is governed by the law of the State 
 
I20 THE NEGOTIABLE INSTRUMENTS LAW. 
 
 where it is made notwithstanding it is to be performed elsewhere. 
 Scott ('. Pilkington, 15 Abb. Pr. 2S0. 
 
 (6) 1 Kev. Stat. N. Y. 768, section 8; Brown v. Ambler, 66 Md. 
 391. But the holder must acquire the bill on the faith of the 
 promise to accept. Howland v. Carson, 15 Pa. St. 453. 
 
 § 224. Time allowed drawee to accept. — The drawee 
 is allowed twenty-four hours after presentment in which 
 to decide whether or not he will accept the bill (a) ; but the 
 acceptance if given dates as of the day of presentation (b). 
 
 (a) See Byles on Bills, 182 ; Daniel on Neg. Inst., section 493. 
 By the former statute of Massachusetts, the drawee had until two 
 o'clock on the day following. (Public Statutes, 1882, Ch. 77, sec- 
 tion 17.) 
 
 (6) There does not appear to be any direct authority on this 
 point ; the rule of the statute conforjiis to what is the common 
 practice. See also statute of Massachusetts above referred to. 
 
 § 225. Liability of drawee retaining or destroying 
 bill. — \Vhere a drawee to whom a bill is delivered for ac- 
 ceptance destroys the same, or refuses within twenty-four 
 hours after such delivery, or within such other period as the 
 holder may allow, to return the bill accepted or non-accepted 
 tO' the holder, he will be deemed to have accepted the 
 same (a). 
 
 (a) 1 Eov. Stat. N. Y. 769, section 11. The refusal referred 
 to in the statute is an affirmative act, or such conduct as amounts 
 to an affirmative act; and mere retention of the bill, without a 
 demand for a return, or a dissent to the retention, and with the 
 permission of tlie owner is not an acceptance. Matteson v. iloul- 
 ton, 79 N. Y. 627. In the Wisconsin Act the following words are 
 added : " Mere retention of the bill is not acceptance."' But in 
 view of the lan.nuai^e of the rest of the section they seem to be 
 wholly unnecessary. 
 
 § 226. Acceptance of incomplete bill. — A bill may be 
 accepted before it has been signed by the drawer, or while 
 
ACCEPTANCE OF BILLS OF EXCHANGE. 121 
 
 Otherwise incomplete, or when it is overdue, or after it has 
 been dishonored by a previous refusal to accept, or by non- 
 payment. But when a bill payable after sight is dishonored 
 by non-acceptance and the drawee subsequently accepts it, 
 the holder, in the absence of any different agreement, is 
 entitled to have the bill accepted as of the date of the first 
 presentment. 
 
 § 227. Kinds of acceptances. — An acceptance is either 
 general or qualified. A general acceptance assents without 
 c[ualification to the order of the drawer. A qualified ac- 
 ceptance in express terms varies the effect of the bill as 
 drawn (a). 
 
 (a) Where a bill is addressed to the drawee in one place, and is 
 accepted payable in another, this is a material variation. Walker 
 V. Bank of State of N. Y., 13 Barb. 636 ; Niagara Bank v. Fairman 
 Co., 31 Barb. 403. But a bill addressed generally to a drawee in 
 a city may be accepted payable at a particular bank in that city. 
 . Troy City Bank v. Lanman, 19 N. Y. 477 ; Meyers v. Standart, 11 
 Ohio St. 29. 
 
 § 228. What constitutes a general acceptancy. — An 
 
 acceptance to pay at a particular place is a general acceptance 
 unless it expressly states that the bill is to be paid there 
 only and not elsewhere (a). 
 
 (a) Before the enactment of the 1 and 2 George IV., c. 78, it 
 was a point much disputed whether, if a bill payable generally was 
 accepted payable at a particular place, such an acceptance was a 
 qualified one. Byles on Bills, 194. The House of Lords finally 
 held that an acceptance payable at a particular place was a quali- 
 fied acceptance, rendering it necessary, in an action against the 
 acceptor, to aver and prove presentment at such place. Rome v. 
 Young, 2 Brod. & Bing. 165 ; 2 Bligh, 391. This led to the passage 
 of the statute above mentioned, called Sergeant Onslow's act, which 
 provided that an acceptance payable at a particular place should 
 be deemed a general acceptance unless expressed to be, payable 
 there " only and not otherwise or elsewhere." In the United States 
 
122 THE NEGOTIABLE INSTRUMENTS LAW. 
 
 the weight of authority has been contsrary to the decision of the 
 House of Lords, and iu favor of the rule as stated in this section. 
 Wallace v. McConnell, 13 Peters, 136. See also note to section 130. 
 
 § 229. Qualified acceptance.— An acceptance is quali- 
 fied which is : 
 
 1. Conditional, that is to say, which makes payment by 
 the acceptor dependent on the fulfillment of a condition 
 therein stated (a) ; 
 
 2. Partial, that is to say, an acceptance to pay part only 
 of the amount for which the bill is drawn ; 
 
 3. Local, that is to say, an acceptance to pay only at a 
 particular place; 
 
 4. Qualified as to time; 
 
 5. The acceptance of some one or more of the drawees, 
 but not of all. 
 
 (a) Such an acceptance does not become due until the happen- 
 ing of the contingency upon which the bill is accepted. Brockway v. 
 Allen, 17 Wend. 40; Newhall v. Clark, 3 Gush. 376; Myrick v. 
 Merritt, 22 Fla. 335 ; Marshall v. Burnby, 25 Fla. 619. 
 
 § 230. Rights of parties as to qualified acceptance. — 
 
 The holder may refuse to take a cjualified acceptance, and if 
 he does not obtain an unqualified acceptance, he may treat 
 the bill as dishonored by non-acceptance (a). Where a 
 c[ualified acceptance is taken, the drawer and indorsers are 
 discharged from liability on the bill, unless they have ex- 
 pressly or impliedly authorized the holder to take a qualified 
 acceptance, or subsequently assent thereto. When the 
 drawer or an indorser receives notice of a qualified accept- 
 ance, he must within a reasonable time express his dissent 
 to the holder, or he will be deemed to have assented thereto. 
 
 (a) C'line v. Miller, 8 iLl. 27-1. But if he receive such an accept- 
 ance he can claim payment only according to the condition or quali- 
 fication. {Id.) An agent for collection, as, for example, a bank, 
 has no authority to receive anything short of an explicit and un- 
 
PRESENTMENT OF BILLS OF EXCHANGE. I23 
 
 qualified acceptance. Walker v. New York State Bank 9 N. Y. 
 582. 
 
 ARTICLE XII.* 
 
 Presentment of Bills of Exchange for Acceptance. 
 
 Section 240. When presentment for acceptance must be 
 made. 
 
 241. When failure to present releases drawer and 
 
 indorser. 
 
 242. Presentment ; how made. 
 
 243. On what days presentment may be made. 
 
 244. Presentment ; where time is insufficient. 
 
 245. When presentment is excused. 
 
 246. When dishonored by non-acceptance. 
 
 247. Duty of holder where bill not accepted. 
 
 248. Rights of holder where bill not accepted. 
 
 § 240. When presentment for acceptance must be 
 made. — Presentment for acceptance must be made : 
 
 1. Where the bill is payable after sight or in any other 
 case where presentment for acceptance is necessary in order 
 to fix the maturity of the instrument (a) ; or 
 
 2. Where the bill expressly stipulates that it shall be pre- 
 sented for acceptance ; or 
 
 3. Where the bill is drawn payable elsewhere than at 
 the residence or place of business of the drawee. 
 
 In no other case is presentrnent for acceptance necessary 
 in order to render any party to the bill liable. 
 
 (a) Although when a bill is made payable at a day certain, as 
 
 * The numbers of the sections of this article in other States than New 
 York are as follows : Colorado, Connecticut, District of Columbia, 
 Florida, Massachusetts, North Carolina. North Dakota, Pennsylvania, 
 Oregon, Tennessee, Utah, Virginia and Washington, 162-170; Mary- 
 land, 162-170; Rhode Island, 151-159; Wisconsin, 1681-1681-8. 
 
124 THE NEGOTIABLE INSTRUMENTS LAW. 
 
 at a fixed time after its date, presentment for acceptance before 
 that time is not necessary in order to charge the drawer or in- 
 dorsers, yet where a bank receives such a bill for collection, its 
 duty is to present the bill for acceptance without delay. For it 
 is to the owner's interest that the bill should be so accepted, as 
 only by acceptiun' it docs the drawee become bound to pay it, 
 and until such acceptance the owner has for his debtor only the 
 drawer, and the step is one which a prudent man of business, 
 ordinarily careful of his own interests, would take for his protec- 
 tion. Allen V. Suydam, 17 Wend. 3<iS. A bill payable at a fixed 
 period from its date may be presented for acceptance at any time. 
 Bachellor v. Priest, 12 Pick. 399; Oxford Bank v. Davis, 4 Cush. 
 1S8. 
 
 § 241. When failure to present releases drawer and 
 indorser. — Except as herein otherwise provided, the holder 
 of a bill which is required by the next preceding section to 
 be presented for acceptance must either present it for ac- 
 ceptance or negotiate it within a reasonable time {a). If 
 he fails to do so, the drawer and all indorsers are discharged. 
 
 (a) Robinson v. Ames, 20 Johns. 146; Gowan v. Jackson, 20 
 Johns. IVO ; Wallace v. Agry, 4 Mason, 333 ; Prescott Bank v. Cov- 
 erly, 7 Gray, 217; Walsh v. Dort, 23 Wis. 334; Phoenix Ins. Co. v. 
 Allen, 11 Mich. 3(1; Qoupy r. Harden, 7 Taunt. 397. A delay of 
 the mail is a sufiicient excuse for the omission to immediately 
 present a bill for acceptance ; and a presentation immediately after 
 its reception is in time to charge the indorser. Walsh v. Blatchley, 
 6 Wis. 422. 
 
 § 242. Presentment ; how made. — Presentment for ac- 
 ceptance must be made by or on behalf of the holder at a 
 reasonable hour (a), on a business day, and before the bill 
 is overdue, to the drawee* or some person authorized to 
 accept or refuse acceptance on his behalf (&) ; and 
 
 I. AA'here a bill is addressed to two or more drawees who 
 are not partners, presentment must be made to them all (f), 
 
 * The word " drawee" substituted for " drawer" by Laws N. Y. 1898, 
 c. 336. 
 
PRESENTMENT OF BILLS OF EXCHANGE. 1 25 
 
 unless one has authority to accept or refuse acceptance for 
 all, in which case presentment may be made to him only ; 
 
 2. Where the drawee is dead, presentment may be made 
 to his personal representative (d) ; 
 
 3. Where the drawee has been adjudged a bankrupt or an 
 insolvent, or has made an assignment for the benefit of 
 creditors, presentment may be made to him or to his trustee 
 
 (a) Cayuga County Bank v. Hunt, 2 Hill, 635. 
 
 (b) Byles on Bills, 182. The holder may require the production 
 by the agent of clear and explicit authority from his principal to 
 accept in his name, and without its production may treat the bill 
 as dishonored. Daniel on Negotiable Instruments, section 487. 
 
 (c) But if one of the drawees accepts he will be bound by his 
 acceptance. Smith v. Melton, 133 Mass. 369. 
 
 (d) Presentment in such case is not necessary. See section 245. 
 Indeed, an executor or administrator has no authority to bind the 
 estate of the decedent by an acceptance. Schmittler v. Simon, 101 
 ]Sr. T. 554. But as it will in most cases be convenient to have the 
 bill duly protested, it is well to have some one designated to whom 
 presentment can be made. 
 
 § 243. On what days pr2sentment may be made. — A 
 
 bill may be presented for acceptance on any day on which 
 negotiable instruments may be presented for payment under 
 the provisions of sections one hundred and thirty-two* and 
 one hundred and forty-fivef of this act. When Saturday 
 is not otherwise a holiday, presentment for acceptance may 
 be made before twelve o'clock noon on that day (a). 
 
 (a) In the Colorado Act the following is substituted for the last 
 sentence : " When any day is in part a holiday, presentment for 
 acceptance may be made during reasonable hours of the part of 
 such day which is not a holiday." In the Wisconsin Act the last 
 sentence is omitted. 
 
 * Number " one hundred and thirty-two'' substituted for seventy-two 
 by Laws 1898. c. 336. 
 
 t Number " one hundred and forty-five" substituted for eighty-five. 
 (Id.) 
 
126 THE NEGOTIABLE INSTRUMENTS LAW. 
 
 § 244. Presentment where time is insufficient. — Where 
 the holder of a bill drawn payable elsewhere than at 
 the place of business or the residence of the drawee has not 
 time with the exercise of reasonable diligence to present 
 the bill for acceptance before presenting it for payment on 
 the day that it falls due, the delay caused by presenting the 
 bill for acceptance before presenting it for payment is ex- 
 cused and does not discharge the drawers and indorsers. 
 
 § 245. Where presentment is excused. — Presentment 
 for acceptance is excused and a bill may be treated as dis- 
 honored by non-acceptance in either of the following cases': 
 
 1. Where the drawee is dead (a), or has absconded, or is 
 a fictitious person or a person not having capacity to contract 
 by bill; 
 
 2. Where after the exercise of reasonable diligence, pre- 
 sentment cannot be made (b) ; 
 
 3. Where, although presentment has been irregular, ac- 
 ceptance has been refused on some other ground. 
 
 (a) Prior to the statute there was some doubt as to the proper 
 course in this case. See Daniel on Negotiable Instruments, section 
 1178. But as the personal representative cannot bind the estate by 
 an acceptance (Schmittler v. Simon, 101 N. Y. 551), presentment 
 would be but an idle form. 
 
 (6) As to what will constitute due diligence, see Sulsbacker v. 
 Bank of Charleston, 86 Tenn. 201. 
 
 § 246. When dishonored by non-acceptance. — A bill 
 is dishonored by non-acceptance : 
 
 1. When it is duly presented for acceptance, and such an 
 acceptance as is prescribed by this act is refused or cannot 
 be obtained ; or 
 
 2. When presentment for acceptance is excused and the 
 bill is not accepted. 
 
 § 247. Duty of holder where bill not accepted.— 
 
 Where a bill is duly presented for acceptance and is not ac- 
 
PROTEST OF BILLS OF EXCHANGE. 127 
 
 cepted within the prescribed time, the person presenting it 
 must treat the bill as dishonored by non-acceptance or he 
 loses the right of recourse against the drawer and indorsers. 
 
 § 248. Rights of holder where bill not accepted.— 
 
 When a bill is dishonored by non-acceptance, an immediate 
 right of recourse against the drawers and indorsers accrues 
 to the holder, and no presentment for payment is neces- 
 sary (a). 
 
 (a) Sterry v. Eobinson, 1 Day (Conn.), 11. 
 
 ARTICLE XIIL* 
 Protest of Bills of Exchange. 
 
 Section 260. In what cases protest necessary. 
 
 261. Protest; how made. 
 
 262. Protest; by whom made. 
 
 263. Protest ; when to be made. 
 
 264. Protest ; where made. 
 
 265. Protest both for non-acceptance and non-pay- 
 
 ment. 
 
 266. Protest before maturity where acceptor in- 
 
 solvent. 
 
 267. When protest dispensed with. 
 
 268. Protest ; where bill is lost, et cetera. 
 
 § 260. In what cases protest necessary. — Where a 
 foreign bill appearing on its face to be such is dishonored 
 by non-acceptance, it must be duly protested for non-accept- 
 
 * The numbers of the sections of this article in other States than New 
 York are as follows ; Colorado, Connecticut, District of Columbia, 
 Florida, Massachusetts, North Carolina, North Dakota, Pennsylvania, 
 Oregon, Tennessee, Utah, Virginia and Washington, 152-160; Maryland, 
 171-179; Rhode Island, 160-168; Wisconsin,, 1681-9-1681-17. 
 
128 THE NEGOTIABLE INSTRUMENTS LAW. 
 
 ance, and where such a bill which has not previously been 
 dishonored by non-acceptance is dishonored by non-payment, 
 it must be duly protested for non-payment. If it is not so 
 protested, the drawer and indorsers are discharged (a). 
 Where a bill does not appear on its face to be a foreign bill, 
 protest thereof in case of dishonor is unnecessary (b). 
 
 (a) Commercial Bank v. Varnum, 49 N. T. 2G9, 275 ; Halliday v. 
 McDougall, 2(J Wend. 81 ; Dennistoun v. Stewart, 17 How. (U. S.) 
 606 ; Phoenix Bank v. Hussey, 12 Pick. 483. Protest is indispensa- 
 ble, and the proof cannot be supplied in any other way. Joseph v. 
 Solomon, 19 Fla. 623. There are several reasons why protest is 
 required in such cases : (1) for the sake of uniformity in interna- 
 tional transactions ; (2) because it affords satisfactory evidence of 
 dishonor to the drawer, who, from his residence abroad, might ex- 
 perience a difficulty in making inquiries on the subject and be 
 compelled to rely on the representations of the holder; (3) because, 
 as foreign courts give credit to the acts of a public functionary, 
 the protest affords the most satisfactory evidence to charge an ante- 
 cedent party. Byles, 256. 
 
 (6) See sections 189 and 213. 
 
 § 261. Protest ; how made. — The protest must be an- 
 nexed to the bill, or must contain a copy thereof (a), and 
 must be under the hand (b) and seal (c) of the notary 
 making it, and must specify : 
 
 1. The time (d) and place (c) of presentment ; 
 
 2. The fact that presentment was made and the manner 
 thereof ; 
 
 3. The cause or reason for protesting the bill ; 
 
 4. The demand made and the answer gi\'en, if any, or 
 the fact that the drawee or acceptor could not be found (/). 
 
 (a) Fulton v. llacCracken, 18 JId. 528. 
 
 (6) The signature of the notary may be printed. Bank of 
 Cooperstown v. Woods, 28 N. Y. 561; Fulton v. MacGracken, IS 
 Md. 528. 
 
 (r) Donegan v. Wood, 49 Ala. 251. In other cases it has been 
 held that the official signature is all that is required. ITuffuker v. 
 
PROTEST OF BILLS OF EXCHANGE. 1 29 
 
 National Bank, 12 Bush. 293. When the court can perceive that a 
 seal is attached thereto the protest is sufficiently authenticated; 
 neither the seal nor the signature of the notary need be proved. 
 Barry v. Crowly, 4 Gill (Md.) 194. 
 
 (d) In the case of a note, the statement in a notarial certificate 
 that it was presented on a certain day is not conclusive upon the 
 parties, but evidence is admissible to show that presentment was 
 also made on another day. Eeynolds v. Appleman, 41 Md. 615. 
 
 (e) A certificate of a notary which states that he presented a 
 note for payment at a certain town and demanded payment, which 
 was refused, but did not state to whom or at what place in the town 
 it was presented, does not show such a presentation to the maker 
 as will bind the indorser. Duckert v. Von Lilienthal, 11 Wis. 56. 
 
 (f ) The notarial certificate of protest is competent, without fur- 
 ther proof. This has often been so held in respect to foreign bills. 
 Porter v. Judson, 1 Gray, 175; Pierce v. Indseth, 106 U. S. 546; 
 Browne v. Philadelphia Bank, 6 S. & E. 484; Coruth v. Walker, 8 
 Wis. 252. For this purpose the different States of the Union are 
 deemed foreign to each other, so that the notorial certificate of pro- 
 test under seal is good on mere production. Townsley v. Sumrall, 
 2 Pet. 170 ; Halliday v. McDougall, 20 Wend. 81 ; Carter v. Burley, 
 9 ISr. H. 558, 566 ; Johnson v. Brown, 154 Mass. 105, 106. The state- 
 ment in the certificate that notice of dishonor has been given is 
 also received as evidence. Barry v. Crowly, 4 Gill (Md.) 194; 
 Eosson V. Carroll, 90 Tenn. 90 ; Legg v. Vinal, 165 Mass. 555. But 
 the notary's certificate is not evidence of other collateral or inde- 
 pendent facts it may contain, especially when such facts are not 
 necessarily within the personal knowledge of the notary, or are of 
 such a character as could not be established by his testimony if he 
 were produced as a witness. Weems v. Farmers' Bank, 15 Md. 
 231. Thus, the statement that the party on whom the demand 
 was made was " one of the administrators" of the acceptor does 
 not establish the facts of the death of the acceptor, and of the 
 granting of letters of administration on his estate to such party. 
 (Id.) So the words " after diligent search and inquiry to ascertain 
 his whereabouts" are not admissible as evidence of such " diligent 
 search and inquiry" having been made; for this is a conclusion of 
 law which the notary could not legally draw or establish by his 
 own testimony. Eeier v. Strauss, 54 Md. 278. See also Eicketts v. 
 Pendleton, 14 Md. 320; Duckert v. Von Lilienthal, 11 Wis. 56; 
 Sumner v. Bowen, 2 Wis. 524; Adams v. Wright, 14 Wis. 408. A 
 notarial certificate of protest is evidence of the facts therein set 
 
130 THE NEGOTIABLE INSTRUMENTS LAW. 
 
 forth, although the notary, when examined, has no recollection of 
 them. Eosson v. Carroll, 90 Tenn. 90; Sherer v. Easton Bank, 33 
 Pa. St. 134. And the entries of a deceased notary in his register 
 are admissible. Spann v. Baltzell, 1 Fla. 301; Porter v. Judson, 1 
 Gray, 175. When a notary has neglected to keep a record of the 
 notice which he has served on the non-payment of a note, his oral 
 testimony is admissible to prove its contents. Terbell v. Jones, 15 
 Wis. 253. Where the protest is exclusively relied upon to prove 
 the necessary facts to fix liability upon the parties to be affected, 
 it must contain sufficient averments to show that everything requi- 
 site has been done on the part of the holder, or his agent, to author- 
 ize the demand upon the indorser. People's Bank v. Brooke, 31 
 Md. 7. 
 
 § 262. Protest ; by whom made. — Protest may be made 
 by: 
 
 1. A notary public (a) ; or 
 
 2. By any respectable resident of the place where the bill 
 is dishonored, in the presence of two or more credible wit- 
 nesses (b). 
 
 (a) It would seem that, in the absence of any custom or usage 
 on the subject, the presentment and demand must be made by the 
 notary in person. Commercial Bank v. Varnum, 49 N. Y. 269, 275 ; 
 Ocean Kat. Bank v. Williams, 102 Mass. 141. A notary who is an 
 officer of a bank may legally protest paper belonging to the bank. 
 Nelson v. First National Bank, 69 Fed. Eep. 798; 29 U. S. 
 551; 16 C. C. A. 425. And though he is also a stockholder in the 
 bank. Moreland's Assignee v. Citizens' Savings Bank, (Ky.) 30 
 S. W. Rep. 19. And it has been held that the cashier of a bank who 
 is a notary may legally protest his own note which has been dis- 
 counted by the bank. Dykman v. Northridge, 1 App. Div. 26. 
 
 (6) Todd V. Neal's Administrator, 49 Ala. 273. 
 
 § 263. Protest ; when to be made. — When a bill is 
 protested, such protest must be made on the day of its dis- 
 honor, unless delay is excused as herein provided. When a 
 bill has been duly noted, the protest may be subsequently 
 extended as of the date of the noting (a). 
 
PROTEST OF BILLS OF EXCHANGE. I3I 
 
 (a) The protest should be commenced, at least (and such an 
 incipient protest is called noting), on the day on which acceptance 
 or payment is refused; but it may be drawn up and completed at 
 any time before the commencement of the suit, or even before or 
 during the trial, and ante-dated accordingly. Byles on Bills, 257. 
 
 § 264. Protest ; where made. — A bill must be pro- 
 tested at the place where it is dishonored (a), except that 
 when a bill drawn payable at the place of business or resi- 
 dence of some person other than the drawee, has been dis- 
 honored by non-acceptance, it must be protested for non- 
 payment at the place where it is expressed to be payable, and 
 no further presentment for payment to, or demand on, the 
 drawee is necessary (fc). 
 
 (a) See Daniel on Neg Inst., section 935 ; Byles on Bills, 25Y. 
 (6) 3 William IV. Oh. 98; Daniel on Neg. Inst., section 935; 
 Byles on Bills, 258. 
 
 § 265. Protest both for non-acceptance and non- 
 payment. — A bill which has been protested for non-accept- 
 ance may be subsequently protested for non-payment. 
 
 § 266. Protest before maturity where acceptor insol- 
 vent. — Where the acceptor has been adjudged a bankrupt 
 or an insolvent, or has made an assignment for the benefit 
 of creditors, before the bill matures, the holder may cause the 
 bill to be protested for better security against the drawer and 
 indorsers. 
 
 § 267. When protest dispensed with. — Protest is dis- 
 pensed with by any circumstances which would dispense 
 with notice of dishonor. Delay in noting or protesting is 
 excused when delay is caused by circumstances beyond the 
 control of the holder and not imputable to his default, mis- 
 conduct, or negligence. When the cause of delay ceases 
 to operate, the bill must be noted or protested with reasonable 
 diligence. 
 
132 THE NEGOTIABLE INSTRUMENTS LAW. 
 
 § 268. Protest where bill is lost, et cetera. — Where 
 a bill is lost or destroyed or is wrongly detained from the 
 person entitled to hold it, protest may be made on a copy 
 or written particulars thereof (a). 
 
 (a) Hinsdale v. Miles, 5 Conn. 331. Loss of the instrument does 
 not excuse demand and protest. Daniel on Negotiable Instru- 
 ments, section UGi. See also section 245. 
 
 ARTICLE XIV.* 
 Acceptance of Bills of Exchange for Honor. 
 
 Section 2S0. When bill may be accepted for honor. 
 
 281. Acceptance for honor; how made. 
 
 282. When deemed to be an acceptance for hunor of 
 
 the drawer. 
 
 283. Liability of acceptor for honor. 
 
 284. Agreement of acceptor for honor. 
 
 285. Maturity of bill payable after sight; accepted 
 
 for honor. 
 
 286. Protest of bill accepted for honor, et cetera. 
 
 287. Presentment for payment to acceptor for 
 
 honor ; how made. 
 
 288. When delay in making presentment is ex- 
 
 cused. 
 
 289. Dishonor of bill by acceptor for honor. 
 
 § 280. When bill may be accepted for honoir. — Where 
 a bill of exchange has been protested for dishonor by 
 non-acceptance or protested for better security and is not 
 overdue, any person not being a party already liable thereon 
 
 * The numbers of the sections of this article in other States than New 
 York are as follows : Colorado, Connecticut, District of Columbia, 
 Florida, Massachusetts. North Carolina. North Dakota, Pennsylvania, 
 Oregon, Tennessee, Utah, Virginia and Washington, 161-170; Maryland, 
 i8o-i8g; Rhode Island, 169-178; Wisconsin, 1681-18-1681-27. 
 
ACCEPTANCE OF BILLS OF EXCHANGE FOR HONOR. 1 33 
 
 may, with the consent of the holder, intervene and accept 
 the bill supra protest for the honor of any party liable 
 thereon or for the honor of the person for* whose account 
 the bill is drawn. The acceptance for honor may be for part 
 only of the sum for which the bill is drawn ; and where there 
 has been an acceptance for honor for one party, there may 
 be a further acceptance by a different person for the honor 
 of another party (a). 
 
 (a) Byles on Bills, 262-206. 
 
 § 281. Acceptance for honor ; how made. — An accept- 
 ance for honor supra protest must be in writing and indicate 
 that it is an acceptance for honor, and must be signed by the 
 acceptor for honor. 
 
 § 282. "When deemed to be an acceptance for honor 
 of the drawer. — Where an acceptance for honor does 
 not expressly state for whose honor it is made, it is deemed 
 to be an acceptance for the honor of the drawer. 
 
 § 283. Liability of acceptor for honor. — The acceptor 
 for honor is liable to the holder and to all parties to the bill 
 subsequent to the party for whose honor he has ac- 
 cepted (a). 
 
 (a) The acceptor for the honor of the drawer cannot maintain 
 an action thereon against him without proof of its presentment to 
 the drawee and non-acceptance or non-payment by him, and notice 
 thereof to the drawer. Baring v. Clark, 19 Pick. 220. 
 
 § 284. Agreement of acceptor for honor.— The ac- 
 ceptor for honor by such acceptance engages that he will on 
 due presentment pay the bill according to the terms of his 
 acceptance, provided it shall not have been paid by the 
 drawee, and provided dlso that it shall have been duly pre- 
 
 * The word " for" omitted in the original New York Act supplied by 
 Laws i8g8, c. 336. 
 
134 THE NEGOTIABLE INSTRUMENTS LAW. 
 
 sented for payment and protested for non-payment and 
 notice of dishonor given to him. 
 
 § 285. Maturity of bill payable after sight ; accepted 
 for honor. — Where a bill payable after sight is accepted for 
 honor, its maturity is calculated from the date of the noting 
 fcir non-acceptance and not from the date of the acceptance 
 for honor. 
 
 § 286. Protest of bill accepted for honor, et cetera. — 
 
 Where a dishonored bill has been accepted for honor supra 
 protest or contains a reference in case of need, it must be 
 protested for non-payment before it is presented for payment 
 to the acceptor for honor or referee in case of need. 
 
 § 287. Presentment for payment to acceptor for honor ; 
 how made. — Presentment for payment to the acceptor for 
 honor must be made as follows : 
 
 1. If it is to be presented in the place where the protest 
 for non-payment was made, it must be presented not later 
 than the day following its maturity; 
 
 2. If it is to be presented in some other place than the 
 place where it was protested, then it must be forwarded 
 within the time specified in section one hundred and seventy- 
 five* (a). 
 
 (a) Doubts having arisen as to the day when the bill should be 
 again presented to the acceptor for honor, or referee in case of need, 
 for payment, the (! and 7 Will. 4, c. 58, enacted that it should not be 
 necessary to present, or in case the acceptor for honor or referee 
 live at a distance, to forward for presentment, till the day fol- 
 lowing that on which the bill becomes due. Byles on Bills, 263. 
 
 § 288. When delay in making presentment is ex- 
 cused. — The provisions of section one hundred and forty- 
 
 * Number one hundred and seventy-five substituted for one hundred 
 and four by Laws N. Y. 1898. c. 336. 
 
PAYMENT OF BILLS OF EXCHANGE FOR HONOR. I35 
 
 one* apply where there is delay in making presentment to 
 the acceptor for honor or referee in case of need. 
 
 § 289. Dishonor of bill by acceptor for honor.— When 
 the bill is dishonored by the acceptor for honor it must be 
 protested for non-payment by him. 
 
 ARTICLE XV.f 
 Payment of Bills of Exchange for Honor. 
 
 Section 300. Who may make payment for honor. 
 
 301. Payment for honor; how made. 
 
 302. Declaration before payment for honor. 
 
 303. Preference of parties offering to pay for honor. 
 
 304. Effect on subsequent parties where bill is paid 
 
 for honor. 
 
 305. Where holder refuses to receive payment supra 
 
 protest. 
 
 306. Rights of payer for honor. 
 
 § 300. Who may make payment for honor. — Where a 
 bill has been protested for non-payment, any person may 
 intervene and pay it supra protest for the honor of any per- 
 son liable thereon or for the honor of the person for whose 
 account it was drawn (a). 
 
 (a) Byles on Bills, 26Y-269 ; Daniel on Neg. Inst., section 1254. 
 
 § 301. Payment for honor ; how made. — The payment 
 for honor supra protest in order to operate as such and not 
 
 * Number one hundred and forty-one substituted for eighty-one by 
 Laws N. Y. 1898, c. 336. 
 
 t The numbers of the sections of this article in other States than New 
 York are as follows : Colorado, Connecticut, District of Columbia, 
 Florida, Massachusetts, North Carolina, North Dakota, Pennsylvania, 
 Oregon, Tennessee, Utah, Virginia and Washington, 171-177; Rhode 
 Island, 179-185; Maryland, 190-196; Wisconsin, 1681-28-1681-34. 
 
136 THE NEGOTIABLE INSTRUMENTS LAW. 
 
 as a mere voluntary payment must be attested by a notarial 
 act of honor, which may be appended to the protest or form 
 an extension to it (a). 
 
 (a) Byles on Bills, 2C7 ; Daniel on Neg. Inst., section 1258. A 
 stranger to the drawer and indorser of a non-accepted bill may- 
 intervene supra protest, to pay the same for the honor of the in- 
 dorser or drawer. Konig o. Bayard, 1 Pet. 250. Apd it is no 
 objection to this intervention that it has been done at the request 
 ■ and under the guarantee of the drawer who had refused acceptance 
 or payment. (Id.) 
 
 § 302. Declaration before payment for honor. — The 
 
 notarial act of honor must be founded on a declaration made 
 by the payer for honor, or by his agent in that behalf declar- 
 ing his intention to pay the bill for honor and for whose 
 honor he pays. 
 
 § 303. Preference of parties offering to pay for honor. 
 
 — Where two or more persons offer to pay a bill for the 
 honor of different parties, the person whose payment will 
 discharge most parties to the bill is to be given the pref- 
 erence. 
 
 § 304. Effect on subsequent parties where bill its 
 paid for honor. — Where a bill has been paid for honor all 
 parties subsequent to the party for whose honor it is paid 
 are discharged, but the payer for honor is subrogated for, 
 and succeeds to, both the rights and duties of the holder as 
 regards the party for whose honor he pays and all parties 
 liable to the latter (a). 
 
 (a) Daniel on Neg. Inst., section 1255. 
 
 §305. Where holder refuses to receive paymen 
 supra protest. — Where the holder of a bill refuses to re- 
 ceive payment supra protest, he loses his right of recourse 
 against any party who would have been discharged by such 
 payment. 
 
BILLS IN A SET. 1^7 
 
 §306. Rights of payer for honor.-The payer for 
 honor, on paying to the holder the amount of the bill and 
 the notarial expenses incidental to its dishonor, is entitled 
 to receive both the bill itself and the protest. 
 
 ARTICLE XVI.* 
 Bills in a Set. 
 
 Section 310. Bills in sets constitute one bill. 
 
 311. Rights of holders where different parts are 
 
 negotiated. 
 
 312. Liability of holder who indorses two or more 
 
 parts of a set to different persons. 
 
 313. Acceptance of bills drawn in sets. 
 
 314. Payment by acceptor of bills drawn in sets. 
 
 315. Effect of discharging one of a set. 
 
 § 310. Bills in sets constitute one bill.— Where a bill 
 is drawn in a set, each part of the set being numbered and 
 containing a reference to the other parts, the whole of the 
 parts constitute one bill (a). 
 
 (a) Byles on Bills, 387; Daniel on Neg. Inst., section 113; Dur- 
 kin V. Cranston, 7 Johns. 442. 
 
 § 311. Rights of holders where different parts are 
 negotiated. — Where two or more parts of a set are nego- 
 tiated to different holders in due course, the holder whose 
 title first accrues is as between such holders the true owner 
 of the bill (a) . But nothing in this section affects the rights 
 
 * The numbers of the sections of this article in other States than New 
 York are as follows : Colorado, Connecticut, District of Columbia, 
 Florida, Massachusetts, North Carolina, North Dakota, Pennsylvania, 
 Oregon, Tennessee, Utah, Virginia and Washington, 178-183; Mary- 
 land, 197-202; Rhode Island, 186-191; Wisconsin, 1681-35-1681-40. 
 
138 THE NEGOTIABLE INSTRUMENTS LAW. 
 
 of a person who in due course accepts or pays the part first 
 presented to him. 
 
 (a) Byles on Bills, 389 ; Walsh v. Blatchley, 6 Wis. 422. 
 
 § 312. Liability of holder who indorses two or more 
 parts of a set to different persons. — Where the holder 
 of a set indorses two or more parts to different persons he 
 is liable on every such part, and every indorser subsequent 
 to him is liable on the part he has himself indorsed, as if 
 such parts were separate bills (a). 
 
 (o) Holdsworth v. Hunter, 10 C. B. 449 ; Byles on Bills, 389. 
 
 § 313. Acceptance of bills drawn in sets. — The ac- 
 ceptance may be written on any part, and it must be written 
 on one part only. If the drawee accepts more than one part, 
 and such accepted parts are negotiated to different holders in 
 due course, he is liable on every such part as if it were a 
 separate bill (a). 
 
 (a) Holdsworth v. Hunter, 10 C. B. 449; Byles on Bills, 389. 
 Either of the set may be presented for acceptance, and if not ac- 
 cepted a right of action arises, upon due notice, against the in- 
 dorser. Dounes & Co. v. Church, 13 Peters, 205; Walsh v. Blatch- 
 ley, 6 Wis. 422, 425. 
 
 § 314. Payment by acceptor of bills drawn in sets. — 
 
 ^^'hen the acceptor of a bill drawn in a set pays it without 
 requiring the part bearing his acceptance to be deli\'ered up 
 to him, and that part at maturity is outstanding in the hands 
 of a holder in due course, he is liable to the holder there- 
 on (a). 
 
 (a) Byles on Bills, 389. 
 
 § 315. Effect of discharging one of a set. -Except as 
 herein otherwise provided, where any one part of a bill 
 
PROMISSORY NOTES AND CHECKS. 139 
 
 drawn in a set is discharged by payment or otherwise the 
 whole bill is discharged (a). 
 
 (a) Byles on Bills, 388. The "Wisconsin Act contains an addi- 
 tional article, as follows: 
 
 Section 1682. Whenever any bill of exchange drawn or indorsed 
 within this State and payable without the limits of the United 
 States shall be duly protested for non-acceptance or non-payment 
 the party liable for the contents of such bill shall, on due notice 
 and demand thereof, pay the same at the current rate of exchange 
 at the time of the demand, and damages at the rate of five per cent, 
 upon the contents thereof, together with interest on the said con- 
 tents, to be computed from the date of the protest ; and said amount 
 of contents, damages and interest shall be in full of all damages, 
 charges and expenses. 
 
 § 1683. If any bill of exchange drawn upon any person or cor- 
 poration out of this State, but within some State or Territory of 
 the United States, for the payment of money shall be duly pre- 
 sented for acceptance or payment and protested for non-acceptance 
 or non-payment the drawer or indorser thereof, due notice being 
 given of such non-acceptance or non-payment, shall pay said bill, 
 with legal interest according to its tenor and five per cent, damages, 
 together with costs and charges of protest. 
 
 ARTICLE XVII.* 
 Promissory Notes and Checks. 
 
 Section 320. Promissory note defined. 
 
 321. Check defined. 
 
 322. Within what time a check must be presented. 
 
 323. Certification of check; efifect of. 
 
 324. Efifect where holder of check procures it to be 
 
 certified. 
 
 325. When check operates as an assignment. 
 
 * The numbers of the sections of this article in other States than New 
 York are as follows: Colorado, Connecticut, District of Columbia, 
 Florida, Massachusetts, North Carolina. North Dakota, Pennsylvania, 
 Oregon, Tennessee, Utah, Virginia and Washington. 184-189; Maryland, 
 203-208'; Rhode Island, 192-197; Wisconsin, 1684-1684-5- 
 
I40 THE NEGOTIABLE INSTRUMENTS LAW. 
 
 § 320. Promissory note defined.— A negotiable prom- 
 issory note within the meaning of this act is an uncon- 
 ditional promise in writing made by one person to another, 
 signed by the maker, engaging to pay on demand or at a fixed 
 or determinable future time a sum certain in money to order 
 or to bearer (a). Where a note is drawn to the maker's 
 own order, it is not complete until indorsed by him (b). 
 
 (a) This section makes a change in the law of New York as re- 
 gards the presumption of consideration in the case of non-negotia- 
 ble notes. The terms of the former New York statute included a 
 note payable to a person named therein without words of nego- 
 tiability. Carnwright v. Gray, 127 N. Y. 92. But as that statute 
 has been repealed, and as the provisions of the Negotiable Instru- 
 ment Law apply only to negotiable promissory notes, it is now / 
 necessary to prove consideration in actions upon non-negotiable 
 notes. Deyo v. Thompson, 53 App. Div. (N. Y.) 12. The rules 
 on the subject have differed in the different States. See Daniel 
 on Negotiable Instruments, section 163. In Connecticut the act 
 has made no change in the law; for the rule in that State has been 
 that a non-negotiable note does not import a consideration. Bris- 
 tol V. Warner, 19 Conn. 17. A certificate of deposit issued by a 
 banker in the ordinary form of such instruments is, in substance 
 and legal effect, a negotiable promissory note. Curran v. Witter, 
 68 Wis. 16; Maxwell v. Agnew, 21 Fla. 154. And so are coupons 
 payable to bearer. Trustees of the I. I. Fund. v. Lewis, 34 Fla. 424. 
 
 (5) A note payable to the order of the maker is a negotiable 
 note. Miller v. Weeks, 22 Pa. iSt. 89. Under the former statute in 
 New York the indorsement of the maker was not necessary. Irving 
 National Bank v. Alley, 70 N. Y. 536. Where a promissory note 
 payable to the order of the maker is indorsed by him, the indorse- 
 ment does not change or affect the nature and character of his 
 liability. Madison Square Bank v. Pierce, 137 N. Y. 444. 
 
 § 321. Check defined.— A check is a bill of exchange 
 drawn on a bank (a), payable on demand (b). Except as 
 herein otherwise provided, the provisions of this act ap- 
 plicable to a bill of exchange payable on demand apply to a 
 check (c). 
 
PROMISSORY NOTES AND CHECKS. I4I 
 
 (a) One of the characteristics which distinguish a check from a 
 bill of exchange is that a check is always drawn on a bank or 
 banker. Harris v. Clark, 3 N. Y. 93, 115 ; In the matter of Brown, 
 2 Story's Rep. 502. See also Bull v. Bank of Kasson, 123 U. S. 
 105 ; Rogers v. Durant, 140 U. S. 298 ; Espy v. Bank of Cincinnati, 
 18 Wall. 620; Merchants' Bank v. State Bank, 10 Wall. 604; Chap- 
 man V. White, 6 N. Y. 412; Harker v. Anderson, 21 Wend. 373; 
 Murray v. Judah, 6 Cow. 484 ; Cruger v. Armstrong, 3 Johns. 5 ; 
 Ridgeley Bank v. Patton, 109 111. 484; Harrison v. Nicollet Nat. 
 Bank, 41 Minn. 489; Northwestern Coal Co. v. Bowman, 69 Iowa, 
 152; Planters' Bank v. Keese, 7 Heisk. 200; Blair v. Wilson, 28 
 Gratt. 170; Dodd v. Jette, 10 Oregon 31; Hopkinson v. Forster, 
 L. R. 18 Eq. 74. 
 
 (6) There has been some conflict in the decisions as to whether 
 a draft upon a bank not payable immediately was a check or bill 
 of exchange. The latter view was adopted in New York. Bowen 
 V. Newell, 8 N. Y. 190; 13 N. Y. 390. To the same effect also 
 are the following cases : Ivory v. Bank of the State, 36 Mo. 475 ; 
 Harrison v. Nicollet National Bank, 41 Minn. 488; Georgia Na- 
 tional Bank v. Henderson, 46 Ga. 496; Minturn v. Fisher, 4 Cal. 
 36; Morrison v. Bailey, 5 Ohio St. 13. Contra: Champion v. Gor- 
 don, 70 Pa. St. 474; Westminster Bank v. Wheaton, 4 R. I. 30; 
 In re Brown, 2 Story, 502. In all of these cases the particular 
 question presented was whether the instrument was entitled to 
 grace. But now that grace has been abolished the distinction is 
 of little, if any, practical importance. 
 
 (c) Bill V. Stewart, 156 Mass. 508; Ames v. Meriam, 98 Mass. 
 294. Presentment and notice of dishonor are necessary in order 
 that the holder may recover of the drawer. Herker v. Anderson, 
 21 Wend. 372; Dolph v. Rice, 18 Wis. 397. But unless the check 
 answers the description of a foreign bill protest is not necessary. 
 Wittich V. First Nat. Bank of Pensacola, 20 Fla. 843. See Sec. 
 189. 
 
 § 322. Within what time a check must be presented. 
 
 — A check must be presented for payment within a reason- 
 able time after its issue or the drawer will be discharged 
 from liability thereon to the extent of the loss caused by the 
 delay (o). 
 
 (a) The holder's laches in presenting a check for payment con- 
 
142 THE NEGOTIABLE INSTRUMENTS LAW. 
 
 stitutes no defense in an action against the drawer unless he is 
 damaged by the delay, and then only to the extent of his loss. A 
 check purports to be made upon a deposit to meet it, and pre- 
 supposes funds of the drawer in the hands of the drawee. But 
 if the drawer has no such funds at the time of drawing his check, 
 or subsequently withdraws them, he commits a fraud upon the 
 payee, and can suffer no loss or damage from the holder's delay 
 in respect to presentment or notice. In such case he is liable and 
 cannot insist upon a formal demand or notice of non-payment. 
 First National Bank of Portland v. Linn County National Bank, 
 30 Oregon 296; Industrial Bank of Chicago v. Bowes, 165 111. 70. 
 For instances of unreasonable delay see Industrial Trust, Title and 
 Savings Co. v. Weakley, 103 Ala. 458 ; Gifiord v. Hardell, 88 Wis. 
 538 ; First National Bank of Wymore v. Miller, 43 Neb. 791 ; Comer 
 V. Dufour, 95 Ga. 376; Grange v. Reigh, 93 Wis. 552; Western 
 Wheeled Scraper Co. v. Sadilek, 50 Neb. 105 ; Gregg v. Beane, 69 
 Vt. 22 ; Holmes v. Eoe, 62 Mich. 199. For instances of presentment 
 in due time, see Loux v. Fox, 171 Pa. St. 6S; Willis v. Finley, 173 
 Pa. St. 28; First Nat. Bank v. Buckhannon Bank, 80 
 Md. 475; Lloyd v. Osborne, 92 Wis. 93; Bell v. Alexan- 
 der, 21 Gratt. 1; Purcell v. Allemong, 22 Graft. 739. But 
 while, as between the holder and drawer of a check, presentment 
 may be made at any time, and delay in presentment does not 
 discharge the drawer, unless loss has resulted to him, a different 
 rule obtains as between holder and indorser. The holder, on ac- 
 cepting the check, assumes the obligation to present the same for 
 payment within the time prescribed by law, and if payment is 
 refused to give notice of non-payment. A failure to do this dis- 
 charge the indorser from liability as such irrespective of any 
 question of loss or injury. Carroll i'. Swift, 128 N. T. 19. It is 
 not clear whether the death of the drawer revokes the authority 
 of the bank to pay a check. There is no decision directly in point, 
 and the views of the text writers differ. To meet the diificulty, 
 the original draft of the Negotiable Instruments Law submitted 
 to the commissioners contained a provision (which was taken from 
 the statute of Massachusetts) as follows: " The death of the drawer 
 does not operate as a revocation of the authority to pay a check, 
 if the check is presented for payment within ten days from the 
 date thereof." But it was thought by the conference of commis- 
 sioners that this would be objected to in some of the States because 
 of the effect it might have on the estates of decedents. 
 
PROMISSORY NOTES AND CHECKS. 1 43 
 
 § 323. Certification of check ; effect of.— Where a 
 check is certified by the banl< on which it is drawn the certi- 
 fication* is equivalent to an acceptance (a). 
 
 (a) See Merchants' Bank v. State Bank, 10 Wall. 648 ; Cooke v. 
 State Nat. Bank, 52 N. Y. 96; Farmers' and Mechanics' Bank v. 
 Butchers' and Drovers' Bank, 16 N. Y. 125. The certification does 
 not admit the genuineness of the indorser's signature. First Nat. 
 Bank v. Northwestern Nat. Bank, 152 111. 296. As to the liabilities 
 incurred, see section 112. 
 
 § 324. Effect where the holder of check procures it 
 to be certified. — Where the holder of a check procures 
 it to be accepted or certified the drawer and all indorsers are 
 discharged from liability thereon (a). 
 
 (a) See Minot v. Buss, 156 Mass. 458; Metropolitan Bank v. 
 Jones, 137 111. 634 ; Meridian Nat. Bank v. First Nat. Bank (Ind.), 
 33 N. E. Eep. 247 ; First Nat. Bank v. Leach, 52 N. Y. 350. The 
 bank, for its own protection, usually charges up the check, when 
 certified, to its depositor; and, as the drawer cannot thereafter 
 check against the same fund, it would be unjust that the money 
 should be left in the bank at his risk and he remain liable upon the 
 extended clieclc. Bank v. Carter, 88 Tenn. 279. But where the 
 check is certified when delivered it does not constitute payment 
 any more than an uncertified check ; and if it is presented promptly 
 and dishonored, the loss must fall upon the drawer. Born v. First 
 Nat. Bank, 123 Ind. 78 ; Cincinnati Oyster & Fish Co. v. Nat. La- 
 fayette Bank, 51 Ohio St. 106 ; Bank v. Carter, supra. 
 
 § 325. When check operates as an assignment. — A 
 
 check of itself does not operate as an assignment of any part 
 of the funds to the credit of the drawer with the bank, and 
 the bank is not liable to the holder, unless and until it accepts 
 or certifies the check (a). 
 
 (a) As to this there is considerable conflict in the authorities. 
 The rule adopted in the act is supported by the weight of authority. 
 
 * The word '' certification" substituted for " certificate'' by Laws 
 N. Y. 1898, c. 336. 
 
144 THE NEGOTIABLE INSTRUMENTS LAW. 
 
 See Bank v. Millard, 10 Wall. 152; Bank v. Scliuler, 120 U. S. 511; 
 Florence Mills Co. v. Brown, 124 U. S. 385; First Nat. Bank v. 
 Whitman, 94 U. S. 343, 344; St. L. & S. F. Ey. Co. v. Johnston, 
 133 U. S. 566; Attorney-General v. Continental Life Insurance Co., 
 71 N. Y. 325, 330 ; First Nat. Bank of Union Mills v. Clark, 134 
 N. Y. 368; O'Connor v. Mechanics' Bank, 124 N. Y. 324; Maginn v. 
 Dollar Savings Bank, 131 Pa. St. 362; Saylor v. Bushong, 100 
 Pa. St. 27; Covert v. Ehodes, 48 Ohio St. 66; Cincinnati H. & 
 D. K. R. Co. V. Metropolitan Nat. Bank, 54 Ohio St. 60; Pickle v. 
 People's Nat. Bank, 8S Tenn. 380 ; Boetcher v. Colorado Nat. Bank, 
 15 Col. 10; Hopkinson v. Foster L. E., 18 Eq. 74. Contra: Fon- 
 ner v. Smith, 31 Neb. 107; Munn v. Burch, 25 111. 35; Bank v. 
 Patton, 109 111. 479, 485; Doty v. Caldwell (Tex.), 38 S. W. Rep. 
 1025; Nat. Bank of America v. Nat. Bank of 111. 164 111. 503. 
 But while the mere making and delivery of a check in the ordinary 
 course of business does not operate as an assignment of the fund, 
 it is yet competent for the parties to create such an assignment 
 by a clear agreement or understanding, oral or otherwise, in addi- 
 tion to the giving of the check that such shall be the effect of the 
 transaction. Fourth Stre'et National Bank v. Yardley, 165 U. S. 
 634; Throop Grain Cleaner Co. v. Smith, 110 N. Y. 83, 88. 
 
 ARTICLE XVIII.'^ 
 
 Notes Given for a Patent Rights and for a Specu- 
 lative Consideration. 
 
 Section 330. Negotiable instruments given for patent rights. 
 
 331. Negotiable instruments given for a speculative 
 ' consideration. 
 
 332. How negotiable bonds are made non-nego- 
 
 tiable. 
 
 § 330. Negotiable instruments given for patent rights. 
 
 — A promissory note or other negotiable instrument, the 
 consideration of which consists wholly or partly of the right 
 
 * This article appears only in the New York Act. 
 
NOTES GIVEN FOR A PATENT RIGHTS. I4S 
 
 to make, use or sell any invention claimed or represented 
 by the vendor at the time of sale to be patented, must con- 
 tain the words " given for a patent right " prominently and 
 legibly w^ritten or printed on the face of such note or instru- 
 ment above the signature thereto; and such note or in- 
 strument in the hands of any purchaser or holder is subject 
 to the same defenses as in the hands of the original holder ; 
 but this section does not apply to a negotiable instrument 
 given solely for the purchase price or the use of a patented 
 article (a). 
 
 (a) Laws N. T. ISYT, Ch. 65, section 1; Laws of Pa. 18Y2, 60. 
 This section is not in contravention of the Constitution of the 
 tJnited States and the acts of Congress which secure to a patentee 
 for a limited time " the full and exclusive right and liberty of mak- 
 ing, using and vending to others to be used" his invention or dis- 
 covery. Herdie v. Eoessler, 109 E". Y. 127 ; Tod v. Wick, 36 Ohio 
 St. 370 ; Haskell v. Jones, 86 Pa. St. 173 ; Shires v. Commonwealth, 
 120 Pa. St. 368 ; Breckhill v. Eandall, 102 Ind. 528 ; New v. Walker, 
 108 Ind. 365. If the note does not contain the statement required 
 by this section it is unenf orcible between the parties ; but, if nego- 
 tiable pai)er, it is valid in the hands of a holder in due course. 
 New V. Walker, 108 Ind. 365 ; Kness v. Holbrook, Ind. ; Harmon v. 
 Hagerty, 88 Tenn. 705. 
 
 § 331. Negotiable instrument for a speculative con- 
 sideration. — If the consideration of a promissory note or 
 other negotiable instrument consists in whole or in part of 
 the purchase price of any farm product, at a price greater 
 by at least four times than the fair market value of the same 
 product at the time, in the locality, or of the membership 
 and rights in an association, company or combination to pro- 
 duce or sell any farm product at a fictitious rate, or of a con- 
 tract or bond to purchase or sell any farm product at a price 
 greater by four times than the market value of the same 
 product at the time in the locality, the words, " given for 
 a speculative consideration," or other words clearly show- 
 ing the nature of the consideration, must be prominently and 
 
146 THE NEGOTIABLE INSTRUMENTS LAW. 
 
 legibly written or printed on the face of such note or instru- 
 ment above the signature thereof; and such note or instru- 
 ment, in the hands of any purchaser or holder, is subject to 
 the same defenses as in the hands of the original owner or 
 holder (a). 
 
 (a) Laws N. Y. 1874, Ch. 2(y2, section 1. 
 
 § 332. How negotiable bonds are made non-negotia- 
 ble. — The owner or holder of any corporate or municipal 
 bond or obligation (except such as are designated to cir- 
 culate as money, payable to bearer), heretofore or hereafter 
 issued in and payable in this State, but not registered in pur- 
 suance of any State law, may make such bond or obligation, 
 or the interest coupon accompanying the same, non-negotia- 
 ble, by subscribing his name to a statement indorsed thereon 
 that such bond, obligation ur coupon is his property; and 
 thereon the principal sum therein mentioned is payable only 
 to such owner or holder, or his legal representatives or as- 
 signs, unless such bond, obligation or coupon be transferred 
 by indorsement in blank, or payable to bearer, or to order, 
 with the addition of the assignor's place of residence (a). 
 
 (a) Laws X. Y. 1871, Ch. 81 ; Laws N. Y. 1873, Ch. 595. 
 
 ARTICLE XIX. 
 
 Laws Repealed; When to Take Effect. 
 
 Section 340. Laws repealed. 
 
 341. When to take effect. 
 
 § 340. Laws repealed. — The laws or parts thereof 
 specified in the schedule hereto annexed are hereby repealed. 
 
 g 341. When to take effect. — This chapter shall take 
 
SCHEDULE OF LAWS REPEALED. \i^J 
 
 effect on the first day of October, eighteen hundred and 
 ninety-seven (a). 
 
 (a) See note to section 6. 
 
 SCHEDULE OF LAWS REPEALED.* 
 
 Re' 
 
 k^ised Sta 
 
 tutes. 
 
 Sections. Subject matter. 
 
 R. S., pt. 
 
 IL, ch. 
 
 4, tit. II.. 
 
 .... All ... . Bills and notes. 
 
 Laws of 
 
 Chapter. 
 
 Sections. 
 
 Subject matter. 
 
 1835- • • 
 
 141.. 
 
 . All... 
 
 Notice of protest; how given. 
 
 1857. •• 
 
 416. . 
 
 . Ah . . . 
 
 Commercial paper. 
 
 1865... 
 
 309- • 
 
 . All... 
 
 Protest of foreign bills, etc. 
 
 1870... 
 
 438.. 
 
 . All... 
 
 Negotiability of corporate 
 bonds; how limited. 
 
 1871... 
 
 84.. 
 
 . All... 
 
 Negotiable bonds; how made 
 non-negotiable. 
 
 1873. •• 
 
 595- • 
 
 . All . . . 
 
 Negotiable bonds; how made 
 negotiable. 
 
 1877... 
 
 65.. 
 
 • 1,3- •• 
 
 Negotiable instruments given 
 for patent rights 
 
 1887... 
 
 461 . . 
 
 . All... 
 
 Effect of holidays upon pay- 
 ment of commercial paper. 
 
 1888... 
 
 229. . 
 
 . All... 
 
 One hundredth anniversary of 
 the inauguration of George 
 Washington. 
 
 189I... 
 
 262. . 
 
 I . . . 
 
 Negotiable instruments given 
 for a speculative considera- 
 tion. 
 
 1894... 
 
 607. . 
 
 . All... 
 
 Days of grace abolished. 
 
 * This schedule comprises only the New York statutes. 
 
148 THE NEGOTIABLE INSTRUMENTS LAW. 
 
 La'-MS of Neiv York, 1897, chapter 613. 
 
 AN ACT to amend the Penal Code, relative to violation of 
 The Negotiable Instruments Law. 
 
 The People of the State of Nezu York, represented in Sen- 
 ate and Assembly, do enact as folloii's: 
 
 Section i. The penal code is hereby amended by inserting 
 at the end of title twelve the following new sections : 
 
 § 384m. Notes given for patent rights. — A person who 
 takes, sells or transfers a promissory note or other nego- 
 tiable instrument, knowing the consideration of such note 
 or instrument to consist in whole or in part of the right to 
 make, use or sell any patent invention or inventions, or any 
 invention claimed or represented to be patented, without hav- 
 ing the words " given for a patent right " written or printed 
 legibly and prominently on the face of such note or instru- 
 ment above the signature thereto, is guilty of a misdemeanor. 
 
 § 384n. Notes given for a speculative consideration. 
 
 — A person who takes, sells or transfers a promissory note 
 or other negotiable instrument, knowing the consideration of 
 such note or instrument to consist in whole or in part of 
 the purchase price of any farm product at a price greater by 
 four or more times than the fair market value of the same 
 product at the time in the locality, or in which the considera- 
 tion shall be in whole or in part membership of and rights 
 in an association, company or combination to produce or sell 
 any farm product at a fictitious rate, or of a contract or 
 bond to purchase or sell any farm product at such rate, with- 
 out ha^■ing the words " given for a speculative considera- 
 
PENAL CODE. 1 49 
 
 tion," or other words clearly showing the nature of the con- 
 sideration prominently and legibly written or printed on the 
 face of such note or instrument above the signature thereof 
 is guilty of a misdemeanor. 
 
 § 2. Section two of chapter sixty-five of the laws of 
 eighteen hundred and seventy-seven, and section two of 
 chapter two hundred and sixty-two of the laws of eighteen 
 hundred and ninety-one, are hereby repealed. 
 
 § 3. This act shall take effect the first day of October, 
 eighteen hundred and ninety-seven. 
 
 Lazus of Massachusetts, 1899, Chap. 130. 
 
 AN ACT relative to days of grace on sight drafts. 
 Be it enacted, etc., as foUozvs: 
 
 Section i. On all drafts and bills of exchange made pay- 
 able within the Commonwealth at sight, three days of grace 
 shall be allowed, unless there is an express stipulation there- 
 for to the contrary. 
 
 § 2. So much of chapter five hundred and thirty-three of 
 the acts of the year eighteen hundred and ninety-eight as is 
 inconsistent with this act is hereby repealed. 
 
INDEX. 
 
 (The references are to pages.) 
 
 ACCEPTANCE, meaning of term, 6. 
 what it is, 117, 118. 
 must be in writing, 118. 
 must be signed, 118. 
 
 holder may require it to be on face of bill. 118. 
 must be for payment in money, 118. 
 is new contract, 118. 
 form of, 118. 
 
 signature of drawee suiEcient, 118. 
 by separate instrument, 118. 
 when acceptance on separate instrument binds acceptor, 
 
 118. 
 promise to accept deemed acceptance, 119. 
 by telegraph, 119. 
 
 by what law promise to accept governed, 119. 
 at common law oral promise was sufficient, 119. 
 acceptance by agent, 119. 
 
 time allowed drawee in which to accept, 120. 
 when retention of bill amounts to acceptance, 120. 
 where bill overdue, 120, 121. 
 after bill dishonored, 120, 121. 
 of incomplete bill, 120, 121. 
 date of acceptance, 120. 
 kinds of acceptance, 121. 
 what constitutes general acceptance, 121. 
 qualified acceptance, 121, 122. 
 conditional, 122. 
 local, 122. 
 partial, 122. 
 
 agent cannot take qualified acceptance, 122. 
 executor has no authority to accept, 126, 126. 
 duty of holder where bill dishonored by non-acceptance, 
 126. 
 
152 INDEX. 
 
 ACCEFTAIiCE— Continued. 
 
 when bill dishonored by non-acceptance, 126. 
 
 what bills must be protested for non-acceptance, 127, 128. 
 
 of bills in set, 138. 
 ACCEPTANCE FOE HONOE, when bill may be accepted for 
 honor, 132, 133. 
 
 how made, ] 33. 
 
 for part of sum, 133. 
 
 for different parties, 133. 
 
 when acceptance does not state for whose honor made, 133. 
 
 agreement of acceptor for honor, 133. 
 
 liability of acceptor for honor, 133. 
 
 maturity of bill payable after sight accepted for honor, 
 134. 
 
 how presentment for payment made to acceptor for honor, 
 134. 
 
 dishonor of bill accepted for honor, 135. 
 
 when delay in making presentment excused, 134, 135. 
 ACCEPTOE, by accepting admits existence of drawer, 61. 
 
 admits genuineness of drawer's signature, 61, 62. 
 
 admits drawer's capacity to draw, 61. 
 
 admits authority to draw, 61. 
 
 admits capacity of corporation to draw bill, 62. 
 
 admits capacity of married woman, 62. 
 
 admits capacity of infant, 62. 
 
 may not show that drawer is a lunatic, 62. 
 
 not presumed to know signature of indorser, 62. 
 
 not presumed to know handwriting in body of bill, 62. 
 
 liability of acceptor, 61-63. 
 
 demand of payment not necessary in order to charge, 72. 
 
 when acceptor insolvent bill may be protested for better 
 security, 131. 
 ACCEPTOE FOE HONOE, liability of acceptor for honor, 106. 
 
 agreement of acceptor for honor, 133. 
 ACCOii:\IODATION PAPEE no implied warranty that bill is 
 not, 07. 
 
 notes mutually exchanged are not, 37. 
 
 payment of by party accommodated discharges paper, 200. 
 ACCOMMODATION PAETIES, liability of, 36. 
 
 right to retract, 37. 
 
 right to impose conditions, 38. 
 
 discharge of by diversion of instrument, 37. 
 
INDEX. 
 
 153 
 
 ACCOMMODATION FAHTIES— Continued. 
 
 corporations cannot make, 37. 
 
 rights of on payment of instrument, 110. 
 ACTION, meaning of, 5. 
 
 restrictive indorsement confers right to bring, 43. 
 AGENT, signature by, 28, 29. 
 
 authority of, 28. 
 
 how authority shown, 28. 
 
 liability of person signing as agent, 28, 71. 
 
 may give notice of dishonor, 88, 89. 
 
 notice of dishonor may be given to, 92. 
 
 cannot take qualified acceptance, 122, 123. 
 
 duty of to present bill for acceptance, 123, 124. 
 
 holder may require production of his authority to accept, 
 125. 
 ALTEEATION, effect of, 112, 113. 
 
 holder in due course may enforce instrument according to 
 original tenor, 112. 
 
 what constitutes a material alteration, 113. 
 
 burden of explaining, 112, 113. 
 
 pleading and evidence, 113. 
 
 as to date, 113, 114. 
 
 as to^um payable, 113, 114. 
 
 as to time of payment, 113, 114. 
 
 as to place of payment, 113, 114. 
 
 as to number of parties, 113, 114. 
 
 as to relation of parties, 113, 114. 
 
 as to medium of payment, 113, 114. 
 
 addition of place of payment, 113, 114. 
 
 other changes, 113, 114. 
 AMBIGUOUS INSTRUMENT, construction of, 25-27. 
 ANTECEDENT DEBT, constitutes value, 32-34. 
 ANTEDATED, instrument not invalid because, 21. 
 ASSIGNMENT, bill is not, 115. 
 
 when bill may amount to, 115, 116. 
 
 check is not, 143, 144. 
 
 when check may amount to, 144. 
 ASSUMED NAME, persons signing in, 27. 
 ATTORNEY'S FEE, provision for, 10, 11. 
 
 BANK, meaning of, 6. 
 
 instrument payable at equivalent to order to pay, 85. 
 
154 INDEX. 
 
 BAiSTK — Continued. 
 
 presentment of instrument payable at, Y7, Y8. 
 
 duty of to present bill for acceptance, 123, 124. 
 
 liability of on certified check, 143. 
 
 not liable on check unless it accepts or certifies the same, 
 143, 144. 
 BANK NOTES, note payable in, 17. 
 BEARER, meaning of term, 5. 
 
 instrument must be payable to or order, 19. 
 
 when instrument be payable to, 19-21. 
 
 instrument payable to person named or bearer, 19. 
 
 instrument payable to fictitious person, 19. 
 
 when payee not name of any person, 19. 
 
 when indorsed in blank, 19. 
 
 instrument payable to cash is payable to, 20. 
 
 instrument payable to sundries is payable to, 20. 
 
 instrument payable to estate, 20. 
 
 indorsement of instrument payable to, 45, 69. 
 
 in some States indorsement required, 69. 
 BILL, meaning of term, 5. 
 BILLS IN A SET constitute one bill, 137. 
 
 rights of holder where different parts are negotiated, 137, 
 138. 
 
 liability of indorser, 138. 
 
 acceptance of, 138. 
 
 payment of, 138. 
 
 effect of discharging one of a set, 138. 
 BILL OF EXCHANGE, term " bill" means bill of exchange, 5. 
 
 ambiguous instrument may be considered either bill or 
 note, 26. 
 
 definition of, 115. 
 
 is not an assignment, 115. 
 
 where drawer and drawee are same person, 116. 
 
 may be addressed to two or more drawees, 116. 
 
 but not to two or more in the alternative, 116. 
 
 inland bill, what constitutes, 116. 
 
 foreign bill, what constitutes, 116. 
 
 when bill may be treated as promissory note, 116. 
 
 when bill may amount to an assignment, 116. 
 
 referee in case of need, 117. 
 BLANKS, when may be filled, 22. 
 
 when improperly filled, 22, 23. 
 
INDEX. 1^2 
 
 BLANKS— Continued. 
 
 no authority to fill where instrument has not been deliv- 
 ered, 24. 
 BOHEMIAN OATS NOTES, provisions as to, 17. 
 BONDS, how made non-negotiable, 14C. 
 
 liability of person negotiating-, 66, 67. 
 BEOKER, liability of, 71. 
 BURDEN OF PROOF, where title of prior party was defective, 59. 
 
 CANCELLATION discharges instrument, 106. 
 
 effect of, 112. 
 
 burden of proof, 112. 
 CAPACITY, acceptance admits capacity of drawer to draw bill, 
 62, 63. 
 
 warranty where negotiation by delivery, 65, 66. 
 
 warrant of by general indorser, 66, 68. 
 " CASH," instrument payable to, 20. 
 CASHIER, instrument payable to, 46. 
 
 not disqualified to act as notary, 130. 
 CERTIFICATION, effect of, 143. 
 
 where holder has check certified, 143. 
 
 where drawer has check certified, 143. 
 CHECK defined, 140. 
 
 difference between check and bill, 141. 
 
 presentment and notice of dishonor necessary, 141. 
 
 within what time must be presented, 141, 142. 
 
 effect of delay, 141, 142. 
 
 certification of, 143. 
 
 is not assignment, 143, 144. 
 
 agreement for assignment by, 144. 
 COLLATERAL SECURITIES, provision for sale of, 14, 15. 
 
 must be tendered with instrument, 78. 
 
 holder receiving collaterals not required to proceed upon 
 before suing indorser, 83. 
 " COLLECTION," indorsement for, 42. 
 
 effect of, 42. 
 
 liability of indorser, 42. 
 CONDITIONAL INDORSEMENT, party paying may disregard 
 condition, 44, 45. 
 
 indorsee holds subject to rights of indorser, 44, 45. 
 CONFESSION OF JUDGMENT, provision for, 14, 15. 
 
IS6 INDEX. 
 
 CONFLICT OF LAWS, by what laws demand of payment de- 
 termined, 73. 
 
 by what law vaHdity of promise to accept determined, 119, 
 120. 
 CONSIDEEATION, presumption as to, 32. 
 
 what constitutes, 32. 
 
 antecedent debt is, 30-31. 
 
 absence or failure of is defense, 35. 
 
 partial failure of is defense pro tanto, 35. 
 
 accommodation parties, 36. 
 
 presumption as to in case of non-negotiable note, 32, 140. 
 
 instrument ^iven for speculative consideration, 145. 
 CONTINGENCY, instrument payable on is not negotiable, 13 
 COEPOEATION included in word " person," 5. 
 
 indorsement liy, 20. 
 
 delivery of paper of by officer for personal debt, 55. 
 
 acceptor admits capacity of to draw, 02. 
 
 indorser admits capacity of to make note, 67. 
 CUREENT MONEY, designation of particular kind of, 16, 17. 
 
 DATE, absence of does not affect validitj^ of instrument, 16. 
 
 presumption as to date, 21, 20. 
 
 evidence to show mistake as to date, 21. 
 
 instrument may be ante-dated, 21. 
 
 may be post-dated, 21. 
 
 when date may be inserted, 22. 
 
 insertion of wrong date, 22. 
 
 alteration of date, 113, 111. 
 
 fi-om what date law takes effect, 147. 
 DAYS OF GEACE, abolished, 81. 
 
 rule in Wisconsin, 84. 
 
 rule in North Carolina, 84. 
 
 restored in Massachusetts, 84, 149. 
 DEFENSES, when instrument subject to, 57-59. 
 
 nature of, 58. 
 
 who liable to, 57-.'iS. 
 DELAY, when delay in presenting for payment is excused, 80, 81. 
 
 in giving notice of dishonor, 101, 102. 
 
 in presenting check, 141, 142. 
 DELIVEEY, meaning of term, 5. 
 
 of incomplete instrument, 24. 
 
 contract revocable until delivery, 24. 
 
INDEX. 157 
 
 DELIVEEY— Conimwed 
 
 presumption as to delivery, 24, 25. 
 
 necessary to convey title, 39. 
 
 evidence to show terms of delivery, 40. 
 
 is negotiation of instrument payable to bearer, 39. 
 
 of bill or check implies representation that drawee is in 
 funds, 62, 63. 
 
 warranty where negotiation by delivery, 62, 63. 
 DEMAND, INSTEUMENT PAYABLE ON, instrument must 
 be payable on or at determinable future time, 9. 
 
 instrument expressed to be payable on, 17. 
 
 payable at sight, 17. 
 
 payable on presentation, 17. 
 
 when no time expressed, 17. 
 
 instrument issued, etc., when overdue is payable on de- 
 mand, 17. 
 
 distinction between and instruments payable on demand 
 and at sight, 18. 
 
 when words " on demand" may be added, 17. 
 
 legal intendment cannot be changed by parol, 18. 
 
 instrument payable on demand negotiated an unreasonable 
 
 time after its issue, 52. 
 
 overdue bill is payable on, 18, 74. 
 
 when instrument payable on demand must be presented, 
 73-75. 
 DETERMINABLE FUTUEE TIME, instrument must be payable 
 at, 9. 
 
 what is, 13. 
 
 fixed period after date or sight is, 13. 
 
 on or before fixed time is, 13. 
 
 on or after event certain to happen is, 13. 
 DISCHAEGE OF INSTEUMENT by payment on behalf of prin- 
 cipal debtor, 106. 
 
 where principal debtor becomes holder after maturity, 106. 
 
 by cancellation, 106. 
 
 by other act, 106. 
 
 by payment by party accommodated, 106. 
 
 of one part of a bill drawn in a set, 138, 139. 
 DISCHAEGE OF PARTY SECONDAEILY LIABLE by dis- 
 charge of instrument, 107. 
 
 by cancellation of signature, 107. 
 
 by discharge of prior party, ]07, 108. 
 
I5S INDEX. 
 
 DISCHAEGE OF PAETY SECONDARILY LIABLE— Con- 
 
 iinued. 
 
 by tender by prior party, lOY, 108. 
 
 by release of principal debtor, 107. 
 
 where holder applies collateral security, 108. 
 
 where holder has means of satisfaction, 108. 
 
 reservation of right against suretj', 107, 108. 
 
 extension of time, when will discharge, 107, 109. 
 
 mere indulgence will not discharge, 109. 
 
 where holder allows statute of limitations to run against 
 principal debtor, 108. 
 DRAWEE must be named or indicated in instrument, 9. 
 
 not liable until acceptance, 115. 
 
 bill may be addressed to two or more, 116. 
 
 but not to two or more in the alternative, IIC. 
 
 time allowed in which to accept, 120. 
 
 retaining or destroying bill is liable as acceptor, 120. 
 DRAWER, instrument payable to order of, 18. 
 
 engagement of by drawing bill, 61. 
 
 admission of, 61. 
 
 liability of, 61. 
 
 may negative liability, 61. 
 
 existence of admitted by acceptor, 61. 
 
 when presentment not necessary to charge, 80. 
 
 right of recourse to, fio. 
 
 notice of dishonor must be given to, S7. 
 
 when notice of dishonor need not be given to, 103. 
 
 when released by failure to present bill for acceptance, 
 124. 
 
 liability of where bill dishonored by non-acceptance, 127. 
 
 when protest necessary in order to charge, 127, 128. 
 
 of check discharged if holder has check certified, 143. 
 DUE DILIGENCE, when question of law, 81, 102. 
 
 when question of fact, 81. 
 
 what will constitute, 183, 184. 
 DURESS, instrument or signature obtained by, 53. 
 
 EA'IDEjSTCE, admissibility of evidence to show agreement among 
 
 indorsers, 70. 
 EXCHANGE, provision for, 10. 
 
 EXHIBITION OF INSTRUMENT, when necessary, 77, 78. 
 when excused, 78. 
 
INDEX. 159 
 
 FICTITIOUS PERSON, instrument payable to order of is pay- 
 able to bearer, 20, 61. 
 whether instrument payable to order of estate is, 20. 
 presentment for payment not required where drawee is 
 fictitious person, 81. 
 FIGURES, where there is a discrepancy between words and fig- 
 ures, 26. 
 FISCAL OFFICER, instrument payable to, 46. 
 FOREIGN BILL, what is, 116. 
 FORGED SIGNATURE confers no right, 30. 
 
 when party estopped to allege forgery, 30. 
 FRAUD, instrument or signature obtained by, 53. 
 
 GENUINENESS, warranty of where negotiation by delivery, 66. 
 
 warranty of where negotiation by qualified indorsement, 
 66. 
 
 when warranty of not implied, 66. 
 
 warranty of by general indorser, 68. 
 
 acceptor admits signature of drawer, 61, 62. 
 
 acceptance does not admit signature of indorser, 61, 62. 
 
 nor handwriting in body of instrument, 62. 
 GOLD COIN, note payable in, lY. 
 GUARANTOR, person may become such, 63. 
 
 when proceedings against principal are necessary, 88. 
 
 not entitled to notice of dishonour, 88. 
 GUARANTY, conditional guaranty, 83. 
 
 HOLDER, meaning of term, 6. 
 
 may sue in his own name, 50. 
 
 may receive payment, 50. 
 
 rights of where bill discharged by non-acceptance, 126, 
 12Y. 
 
 duty of where bill not accepted, 126, 127. 
 
 refusal to receive payment for honor, 136. 
 
 by having cheek certified discharges drawer and indorse- 
 ers, 143. 
 
 of check cannot recover of bank on check until it ac- 
 cepts or certifies the same, 143, 144. 
 HOLDER FOR VALUE, what constitutes, 34. 
 
 person having lien is, 34. 
 HOLDER IN DUE COURSE, what constitutes, 50-52. 
 
 who is not, 50-52. 
 
l6o INDEX. 
 
 HOLDER IN DUE COHUSE—Continued. 
 
 in case of instrument payable on demand, 50-52. 
 
 where full amount has not been paid before notice, 52. 
 
 what constitutes notice, 53-55. 
 
 holds instrument free from equities, 55-57. 
 
 may recover full face value, 55. 
 
 rights of person claiming under holder in due course, 57- 
 59. 
 
 when burden on holder to prove that he took instrvment 
 in due course, 59-60. 
 HOLDER OF OFFICE, instrument payable to order of, 19. 
 HOLIDAY, when day for doing act falls on, 7. 
 
 instrument falling due on, 84. 
 
 INCOMPLETE INSTRUMENT, filling blanks, 22, 23. 
 
 not delivered, 24. 
 
 acceptance of, 120, 121. 
 INDORSER, where character not clear signer is presumed to be 
 an indorser, 20, 27. 
 
 when person deemed such, 63. 
 
 irregular indorser, 63-65. 
 
 admits capacity of firm to make note, 67. 
 
 admits capacity of corporation to make note, 67. 
 
 parol evidence to vary liability of, 69. 
 
 liability of where paper negotiable by delivery, 69, 70. 
 
 presentment necessary in order to charge, 72, 141. 
 
 order in which indorsers liable, 70. 
 
 when presentment for payment not necessary to charge, 
 SO. 
 
 right of recourse to, 83. 
 
 not a mere surety after dishonor, 83. 
 
 liability where collaterals have been received, 83. 
 
 holder not required to proceed on collaterals in order to 
 charge indorsers, S3. 
 
 notice of dishonor must be given to, 87. 
 
 when notice of dishonor need not be given to, 104. 
 
 what will discharge, 107-110. 
 
 payment by does not discharge maker, 110, 111. 
 
 where released by failure to present bill for acceptance, 
 124. 
 
 liability of where bill dishonored by non-acceptance, 126. 
 
INDEX. l6l 
 
 INDOESEE— Conimwed 
 
 in what cases protest necessary in order to charge, 127, 
 128. 
 
 liability of where he indorses difierent parts of a set, 138. 
 
 of check discharged by delay to present, 141, 142. 
 INDOESEMENT, meaning of term, 6. 
 
 instrument indorsed in blank payable to bearer, 20. 
 
 by infant, 30. 
 
 by corporation, 30. 
 
 where written, 39. 
 
 required for negotiation of instrument payable to order, 
 39. 
 
 must be completed by delivery, 39, 40. 
 
 must be on instrument, 40. 
 
 or on an allonge, 40. 
 
 signature alone sufEcient, 40, 41. 
 
 must be of entire instrument, 41. 
 
 kinds of, 41. 
 
 special indorsement, 41. 
 
 indorsement in blank, 41. 
 
 how special indorsement converted to blank indorsement, 
 41. 
 
 when restrictive, 42. 
 
 restrictive indorsement prohibiting further negotiation, 
 42. 
 
 restrictive indorsement constituting indorsee mere agent, 
 42. 
 
 restrictive indorsement vesting title in trust, 42. 
 
 effect of indorsement " for collection," 42. 
 
 restrictive indorsement authorizes indorsee to receive pay- 
 ment, 43. 
 
 restrictive indorsement authorizes indorsee to bring ac- 
 tion, 43. 
 
 restrictive indorsement authorizes indorsee to transfer 
 his rights as indorsee, 43. 
 
 effect of qualified indorsement, 43, 44. 
 
 qualified indorsement does not impair negotiable character 
 of the instrument, 44. 
 
 qualified indorsement does not throw suspicion on paper, 
 44. 
 
 of instrument payable to bearer, 45. 
 
l62 INDEX. 
 
 mBORSEME'NT— Continued. 
 
 where instrument payable to two or more, 45. 
 
 by cashier, 46. 
 
 by fiscal officer, 46. 
 
 where name misspelled, 46. 
 
 where payee or indorsee wrongly designated, 46. 
 
 in representative capacity, 46. 
 
 presumption as to place of, 47. 
 
 presumption as to time of, 47. 
 
 striking out indorsement, 48. 
 
 effect of striking out indorsement, 48. 
 
 when may be done, 48. 
 
 transfer without indorsement, 48, 49. 
 
 rights of transferee, 48, 49. 
 
 prior equities, 49. 
 
 warranty where negotiation by qualified indorsement, 65- 
 68. 
 
 warranty of title in case of qualified indorsement, 65-68. 
 INFANT, indorsement by, 30. 
 INLAND BILL, what is, 213. 
 
 INSOLVENCY, no implied warranty that principal debtor not 
 insolvent, 67. 
 
 does not excuse presentment, 82. i 
 INSTALLMENTS, instruments payable in, 10. 
 INSTRUMENT, meaning of term, 6. 
 
 INTEREST, where instrument does not specify date from which 
 interest to run, 25, 26. 
 
 does not make sum uncertain, 10. 
 ISSUE, meaning of term, 6. 
 
 JOINT DEBTORS, presentment to, 80. 
 
 JOINT PARTIES, two or more persons signing " I promise to 
 
 pay," 26. 
 JUDGMENT NOTES, 14, 15. 
 
 LAW MERCHANT, when governs, 7. 
 
 LIABILITY, no one liable whose signature not on instrument, 27. 
 
 of person signing as agent, 27. 
 
 of maker, CI. 
 
 of drawer, 61. 
 
 of acceptor, 61-63. 
 
 of irregular indorser, 63-65. 
 
INDEX. 163 
 
 LIABILITY— Con/inwed 
 
 of general indorser, 68, 69. 
 
 of indorser where paper negotiable by delivery, 65-69. 
 
 order in whieb indorsers liable, YO. 
 
 of agent or broker, 71. 
 LIEN, person having is holder for value, 34. 
 LUNATIC, acceptor cannot show drawer a lunatic, 63. 
 
 MAIL, miscarriage in, does not invalidate notice of dishonor, 96 
 MAKEE, note payable after death of, 14. 
 
 instrument payable to order of, 18, 19, 140. 
 
 liability of 61. 
 
 admission of, 61. 
 
 demand of payment not necessary to charge, 72. 
 
 liability to holder where part payment made by indorser, 
 106, 107. 
 
 MAEEIED WOMAN, acceptor admits capacity of to draw bill, 
 
 62. 
 MATUEITT, option to pay before, 13, 14. 
 
 time of, 84. 
 NEGOTIABLE INSTEUMENTS, law is confined to, 5. 
 
 " instrumerit" means negotiable instrument, 6. 
 
 must contain unconditional promise, 9. 
 
 must be for payment of sum certain, 9. 
 
 must be for payment of money only, 9. 
 
 must be in writing, 9. 
 
 must be signed by maker or drawer, 9. 
 
 must be payable on demand or at determinable future 
 time, 9. 
 
 must be payable to order or bearer, 9. 
 
 statement of transaction does not afEect negotiable charac- 
 ter, 12, 13. 
 
 indication of particular fund does not render non-nego- 
 tiable, 12. 
 
 order to pay out of particular fund not negotiable, 12, 13. 
 
 instrument payable on contingency not negotiable, 13. 
 
 provision for sale of collateral, 14, 15. 
 
 provision for confession of judgment, 14, 15. 
 
 waiver of benefits of law, 14, 15. 
 
 option to require something in lieu of payment in money, 
 14, 15. 
 
164 INDEX. 
 
 NEGOTIABLE INSTRUMENTS— Conimwed. 
 
 instrument payable when certain person shall become of 
 age, 14. 
 
 omissions not affecting, 15-17. 
 
 not dated, 16. 
 
 not specifying value given, 16. 
 
 not specifying place where dravpn, 16. 
 
 not specifjang place where payable, 16. 
 
 bearing seal, 16. 
 
 provisions as to collaterals, 14, 15. 
 
 designation of particular kind of current money, 16, lY. 
 
 instrument continues negotiable until discharged or re- 
 strictively indorsed, 47, 48. 
 NEGOTIABLE INSTRUMENTS LAW, short title, 5. 
 
 when to take effect, 7, 146. 
 
 to what instruments it applies, 7. 
 NEGOTIATION of post-dated instruments, 21. 
 
 rules governing, 138-149. 
 
 what constitutes negotiation, 39. 
 
 of instrument payable to bearer, 39. 
 
 of instrument payable to order, 39. 
 
 by prior party, 49. 
 
 party secondarily liable paying instrument may again 
 negotiate it, 110, 111. 
 
 when drawer and indorsers released by failure of holder to 
 negotiate bill, 124. 
 
 bill must be negotiated within reasonable time, 73, 124. 
 
 of bills in sets, 137. 
 NEW YORK STATE BILLS, note payable in, 17. 
 NOTARY PUBLIC, may make protest, 130. 
 
 not disqualified because officer of bank, 130. 
 
 presentment must be by notary in person, 130. 
 
 certificate of as evidence, 128-130. 
 NOTE, meaning of term, 6. 
 
 NOTICE OF DISHONOR, where instrument issued or negotiated 
 when overilue, 18. 
 
 indorser entitleil to though he holds collateral, 73. 
 
 to whom must be given, 87, 88. 
 
 rules governing, 87-105. 
 
 must be given to indorser, 87. 
 
 must be given to drawer, 87. 
 
 need not be given to guarantor, 88. 
 
INDEX. 165 
 
 NOTICE OF DISHONOR— CoHimued 
 by whom may be given, 88. 
 notice by stranger not sufficient, 88. 
 party discharged cannot give, 88. 
 drawee who refuses acceptance cannot give, 88. 
 notice by agent, 88, 89. 
 bank as agent may give, 89. 
 to whose benefit notice enureS; 89. 
 holder required to give notice only to his immediate in- 
 
 dorser, 89. 
 when misdescription does not vitiate, 90. 
 when notice sufficient, 90. 
 notice need not be signed, 90. 
 omission of date and time of payment, 90. 
 printed notice, 91. 
 signature of notary, 91. 
 form of notice, 90. 
 when notice defective, 90, 91. 
 may be delivered personally, 90. 
 may be sent by mail, 90. 
 
 when sufficiency of notice question of law, 91. 
 may be given to agent, 92. 
 who deemed agent to receive, 92. 
 where party dead, 92. 
 to partners, 93. 
 
 to joint parties not partners, 93. 
 to bankrupt, 94. 
 to assignor for creditors, 94. 
 
 may be given as soon as instrument dishonored, 94. 
 where parties reside in same place, 94. 
 where parties reside in different places, 95, 96. 
 when notice deemed deposited in post-office, 96, 97. 
 miscarriage in mails does not impair validity of notice, 96. 
 time in which indorser to give notice to prior parties, 97. 
 where notice to be sent, 98. 
 when party adds address to signature, 98. 
 where party has not given address, 98. 
 where he lives in one place and has office in another, 98. 
 where he is sojourning in another place, 98. 
 when notice actually received this is sufficient, 98, 99. 
 waiver of, 99. 
 waiver of before dishonor, 99, 100. 
 
1 66 INDEX. 
 
 NOTICE OF BISHO'NOIt—Continued. 
 
 waiver of after dishonor, 99, 100. 
 
 what will constitute waiver, 99, 100. 
 
 waiver embodied in instrument, 100. 
 
 waiver written over signature, 100. 
 
 waiver of protest, what it includes, 101. 
 
 when notice dispensed with, 101. 
 
 when cannot be given after reasonable diligence, 101, 102. 
 
 what will constitute reasonable diligence, 101, 102. 
 
 when delay excused, 102, 103. 
 
 reliance upon directory, 102. 
 
 when notice need not be given to drawer, 103. 
 
 when notice need not be given to indorser, 104. 
 
 when instrument has been previously dishonored by non- 
 acceptance, 104. 
 
 effect of omission to give notice of dishonor by non-accept- 
 ance, 104, 105. 
 NOTICE OF EQUITIES, what constitutes, 53-55. 
 
 See " Promissory Note." 
 NOTICE, where transferee receives notice before payment in full 
 
 for instrument, 52. 
 NOTING, 130, 131. 
 
 OMISSIONS, what omissions do not affect validity or negotiable 
 
 character of instrument, 15, 16. 
 OPTION, to pay before maturity, 13, 14. 
 
 of holder to require something in lieu of payment in 
 money, 14, 15. 
 OKDER, instrument must be payable to, or bearer, 9, IS, 19. 
 instruments payable to, 9, is, 19. 
 instrument payable to order of drawer, IS. 
 
 maker, IS. 
 drawee, 18. 
 
 two or more payees, 19. 
 one of several payees, 19. 
 instrument payable to order of holder of ofiice, 19. 
 payee must be named or indicated, 19. 
 OVERDUE INSTRUMENT is as regards parties issuing or nego- 
 tiating payable on demand, 17. 
 
 PARTNERS, indorser of firm note admits capacity of firm to exe- 
 cute, (i7. 
 
INDEX. 
 
 167 
 
 VART'NE'RS— Continued. 
 
 presentment to, 137. 
 PATENT RIGHTS, negotiable instruments given for, 17, 144, 
 
 145. 
 PAYEES, two or more, 19. 
 
 one of several, 19. 
 
 when name not the name of any person, 19. 
 
 trade or assumed name, 61. 
 
 fictitious, 61. 
 
 acceptance admits existence of, 62. 
 
 acceptance admits capacity to indorse, 62. 
 
 acceptance does not admit signature of, 62. 
 PAYMENT, instrument must be for payment in money, 9. 
 
 instrument payable in merchandise, 9. 
 
 option to require something in lieu of payment in money, 
 13, 14. 
 
 holder in due course can recover face value, 55. 
 
 what constitutes payment in due course, 85, 86. 
 
 by principal debtor, 106. 
 
 by party accommodated, 106. 
 
 by party secondarily liable, 107. 
 
 ■what bills must be protested for non-payment, 127, 12S. 
 
 bill protested for non-acceptance may be protested for 
 non-payment, 131. 
 
 of bills in a set, 138. 
 PAYMENT FOR HONOR, who may make, 135. 
 
 how made, 135, 136. 
 
 preference of parties offering to pay for honor, 136. 
 
 effect on subsequent parties, 136. 
 
 where holder refuses to receive payment, 136. 
 
 effect of, 136. 
 
 declaration before payment, 136. 
 
 rights of payer for honor, 137. 
 PENCIL, writing may be in, 9. 
 PERSON, meaning of term, 6. 
 PERSON PRIMARILY LIABLE, who is, 6. 
 
 demand of payment not necessary to charge, 72. 
 PERSON SECONDARILY LIABLE, who is, 5. 
 
 right of recourse to, 83. 
 PLACE, failure to specify place where drawn does not affect nego- 
 tiable character, 14. 
 
 presumption as to place of indorsement, 47. 
 
1 68 INDEX. 
 
 PLACE — Continued. 
 
 of presentment, what is proper place, 132, 133. 
 
 alteration as to place, 113, 114. 
 POST-DATED INSTRUMENT, negotiation of, 21. 
 
 instrument not invalid because post-dated, 21. 
 POST-OEFICE, what constitutes deposit in, 9Y. 
 
 deposit in post-office box, 97. 
 PEE-EXISTING DEBT constitutes value, 32-34. 
 PEESENTATION, instrument payable on is payable on demand, 
 
 17. 
 PRESENTMENT FOE ACCEPTANCE, in what cases neces- 
 sary, 123. 
 
 where bill payable after sight, 123. 
 
 where required to fix maturity, 123. 
 
 not necessary where payable at day certain or at fixed 
 time after date, 123. 
 
 where bill expressly stipulates for, 123. 
 
 where bill not payable at drawee's place of business or resi- 
 dence, 123. 
 
 when drawer and indorsers released, 124. 
 
 duty of agent to present bill for acceptance, 123, 124. 
 
 how presentment made, 124. 
 
 must be by or on behalf of holder, 124. 
 
 must be at reasonable hour, 124. 
 on business day, 124. 
 
 before bill is overdue, 124. 
 
 must be to drawee or some person authorized to act for 
 him, 124. 
 
 where there are two or more payees not partners, 124. 
 
 where drawee is dead, 125. 
 
 where drawee is bankrupt or insolvent, 125. 
 
 on what days may be made, 12.5. 
 
 where time insufficient, 126. 
 
 when excused, 126. 
 
 excused where drawee dead, 126. 
 
 excused where drawee has absconded, 126. 
 
 excused where drawee is fictitious person, 126. 
 
 excused where drawee has not capacity to contract, 126. 
 
 excused when cannot be made after reasonable diligence, 
 126. 
 PRESENT]\1ENT FOR PAYMENT, of instrument issued or ne- 
 gotiated when overdue, IS. 
 
INDEX. 169 
 
 PEESENTMENT FOR PAYMENT— Conimued. 
 
 by what laws determined, 72. 
 
 necessary in order to charge drawer or indorsers, 72. 
 
 not necessary to charge party primarily liable, 72. 
 
 where instrument payable on demand, 73-75. 
 
 what constitutes sufScient presentment, 75, 76. 
 
 must be made on day of maturity, 73. 
 
 holder has entire day in which to make, 73. 
 
 what sufficient evidence of authority to receive payment, 
 75. 
 
 place of presentment, 76, 77. 
 
 where principal debtor dead, 79. 
 
 where maker or acceptor has abandoned place of business, 
 76. 
 
 where instrument payable at bank, 78. 
 
 collaterals must be tendered with instrument, 78. 
 
 instrument must be exhibited, 77, 78. 
 
 what will excuse exhibition, 78. 
 
 where persons primarily liable are partners, 79. 
 
 to joint parties who are not partners, 80. 
 
 when not required to charge indorser, 80. 
 
 when not required to charge drawer, 80. 
 
 when delay excused, 80, 81. 
 
 waiver of, 81-83. 
 
 what will amount to waiver, 81-83. 
 
 where drawee is fictitious person, 81. 
 
 when dispensed with, 81-83. 
 
 computation of time, 84, 85. 
 
 instrument falling due on Sunday, 84. 
 
 on holiday, 84. 
 on Saturday, 84. 
 
 not necessary where bill has been dishonored by non- 
 acceptance, 127. 
 
 how made to acceptor for honor, 134. 
 
 within what time check must be presented, 141, 142. 
 
 effect of delay, 141, 142. 
 PRINCIPAL not liable unless his signature appears on instru- 
 ment, 27. 
 PRINTED PROVISIONS, written provisions prevail over, 25. 
 « PROCURATION," signature by, 29, 30. 
 PROMISSORY NOTE, term " note" means, 6. 
 
 note given for purchase price of goods, 13. 
 
I/O INDEX. 
 
 PEOMISSOEY NOTE— Conimuei 
 
 payable on or after death of maker, 14. 
 
 payable in gold coin, 17. 
 
 in bank bills, 17. 
 
 in New York State bills, 17. 
 
 in Florida funds, 17. 
 
 in specie, 17. 
 
 given for patent right, 17. 
 
 " Bohemian oats" notes, 17. 
 
 ambiguous instrument may be considered bill or note, 26. 
 
 when bill may be treated as, 116. 
 
 drawn to maker's own order, 140. 
 
 defined, 140. 
 
 non-negotiable notes, 32. 
 PEOTEST, what waiver of includes, 101. 
 
 construction of term, 101. 
 
 construction of term in pleading, 101. 
 
 may be made in case of dishonor of any instrument, 105. 
 
 not required except in case of foreign bills, 105. 
 
 necessary in case of foreign bills, 127. 
 
 unnecessary unless bill appears on its face to be a foreign 
 bill, 127. 
 
 how made, 128-130. 
 
 must be annexed to bill, 128. 
 
 must be under hand of notary, 128. 
 
 must be under seal of notary, 128. 
 
 when to be made, 130. 
 
 must specify time and place of presentment, 128. 
 
 must specify fact that presentment was made, 128. 
 
 cause for protesting the bill, 128. 
 
 demand made and answer given, 128. 
 
 manner of presentment, 128. 
 
 may be made by notary public, 130. 
 
 may be made by resident, 130. 
 
 presentment must be by notary himself, 130. 
 
 where made, 131. 
 
 ■when dispensed with, 131. 
 
 for better security, 131. 
 
 hoth for non-acceptance and non-payment, 131. 
 
 extending protest, 130, 131. 
 
 before maturity where acceptor insolvent, 131. 
 
 where bill is lost, 132. 
 
INDEX. 171 
 
 THOTEST— Continued. 
 
 of bill accepted for honor, 135. 
 
 EEASONABLE DILIGENCE, what will constitute in case of 
 notice of dishonor, 101, 102. 
 See Due Diligence. 
 EEASONABLE HOUR, what is, 75, 76. 
 EEASONABLE TIME, what constitutes, 7, 75, 76. 
 when question of law, 7. 
 when question of fact, 7. 
 
 in case of instrument payable on demand, 52. 
 instrument payable on demand must be presented within, 
 73-75. 
 REEEEEE IN CASE OF NEED, 215 
 RENUNCIATION, effect of, 112. 
 
 how made, 112. 
 REPEAL, laws repealed, 147. 
 
 REPRESENTATIVE CAPACITY, person indorsing in may neg- 
 ative personal liability, 46, 47. 
 
 SATURDAY, instrument falling due on, 84. 
 SEAL does not affect negotiable character, 16, 17. 
 
 of corporation, 17. 
 SHORT TITLE of negotiable instruments law, 5. 
 SIGHT, instrument payable at sight is payable on demand, 17. 
 SIGNATURE, no person liable whose signature does not appear 
 on the instrument, 27. 
 
 by agent, 28. 
 
 by " procuration," 29. 
 
 forged signature, 30. 
 
 acceptance admits genuineness of drawer's signature, 
 61, 62. 
 SPECIE, note payable in, 17. 
 STRIKING OUT INDORSEMENT, effect of, 78. 
 
 when may be done, 78. 
 SUM CERTAIN, what is, 10. 
 SUNDAY, when day for doing act falls on, 7. 
 
 instrument falling due on, 84. 
 " SUNDRIES," instrument payable to, 20. 
 
 TENDER, ability and willingness at place of payment equal to, 72. 
 TEEMS, when suiRcient, 21. 
 
172 INDEX. 
 
 TIME, how computed, 7, 84. 
 
 when statute io take effect, 7, 146. 
 
 of indorsement, 47. 
 TITLE, short title of act, 5. 
 
 burden of proof where title of prior party defective, 59. 
 
 when defective, 53. 
 
 warranty of where negotiation by delivery, 65-68. 
 
 warranty of where negotiation by qualified indorsement, 
 65-68. 
 
 warranty of by general indorser, 68-69. 
 TEADE NAME, persons signing in, 27. 
 
 UNCONDITIONAL PROMISE OR OEDEE, what is, 12, 13. 
 
 order to pay out of particular fund is not, 12, 13. 
 USAGE, regard to be had to in determining question of reasonable 
 
 time, 6. 
 USURY, no implied warranty that note is not void for usury, 67. 
 
 VALUE, meaning of term, 6. 
 
 failure to specify does not affect negotiable character of 
 
 instrument, 16. 
 what constitutes, 32. 
 pre-existing debt in, 32-34. 
 what constitutes holder for value, 34. 
 lien on instrument constitutes, 34. 
 
 WAIVER of benefits of law by obligor, 14, 15. 
 
 of presentment for payment, 81-83. 
 
 what will amount to waiver of present for payment, 82, 83. 
 
 of notice of dishonor, 99, 100. 
 
 when embodied in instrument, 100, 101. 
 
 when written above signature, 100, 101. 
 
 of protest, what it includes, 101. 
 WARRANTY, where negotiation by delivery, 65-68. 
 
 where negotiation by qualified indorsement, 65-68. 
 
 of genuineness, 66, 67, 68, 69. 
 
 when warranty of genuineness not implied, 66. 
 
 of capacity, of prior parties where negotiation by delivery 
 
 or qualified indorsement, 66, 67. 
 
 no implied warranty that note is not void for usury, 67. 
 
 no implied warranty that bill is not accommodation paper, 
 67. 
 
INDEX. 173 
 
 WARRANTY— Continued. 
 
 on sale of municipal bonds, 66, 67, 68. 
 
 no implied warranty of capacity to contract on sale of 
 
 municipal bonds, 66, 67, 68. 
 no implied warranty that principal debtor is not insolvent, 
 
 67. 
 general indorser warrants, that instrument is genuine, 68. 
 
 that instrument is what it pur- 
 ports to be, 68. 
 that he has a good title, 68. 
 that prior parties had capacity 
 
 to contract, 68. 
 that instrument is valid and 
 subsisting, 68. 
 In case of instrument indorsed " for collection" 68, 69. 
 " WITHOUT EECOUESE," effect of term, 43, 44. 
 WEITING may be in pencil, 9. 
 WKITTEN, what included in term, 6. 
 WEITTEN PEOVISIONS prevail over printed, 26. 
 
i 
 
 L