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 ^''*iiSS?i&'!.„M*9°''3'''6 instruments law 
 
 3 1924 022 794 527 
 
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THE CODIFIED 
 
 NEGOTIABLE liSTRUMENTS LAW 
 
 OF THE 
 
 STATE OF NEW YORK. 
 
 Laws of New York, 1897, Chapter 612. Being Chapter 
 L OF THE General Laws (also Laws of Connecti- 
 cut, 1897, Chapter 74; Laws of Colorado, 1897, 
 Chapter 239; Laws of Florida, 1897, Chapter 
 4524) With an Appendix containing 
 New York Interest Laws. 
 
 EDITED BV 
 
 JAMES W. 3.ATON, Esq., 
 
 OF THE ALBANY BAR, 
 
 Instructor on Bills and Notes in the Albany Law School, 
 AND BY 
 
 H. NOYES GREENE, Esq., 
 
 OF THE TROY BAR. 
 
 Author of The Law of Taxable Transfers and Practice Time Table. 
 
 ALBANY, N. Y.: 
 MATTHEW BENDER, Publisher. 
 
 5II-513 BROADWAY. 
 1897. 
 
 11667 
 
Entered, according to act of Congress, in ttie year 1897, by 
 
 MATTHEW BENDER, 
 
 in the office of the Librarian of Congress at WasUngton, D. C. 
 
 Wim)-Pakbo»b PRINnNS Co.. 
 
 XLIOTROTTPERB, PRINTERS ANS BINDIBS. 
 
 Albany, N. T. 
 
THE 
 
 NEGOTIABLE INSTRUMENTS LAW 
 
 NEW YORK. 
 
 L. 1897, Ch. 612. 
 
 INTRODUCTORY NOTE BY THE EDITORS. 
 
 DEFINITION OF NEGOTIABLE PAPER. 
 
 Negotiable paper includes all those instruments 
 which are transferable by indorsement or delivery, 
 so as to vest in the transferee the legal title and 
 enable him to maintain an action on the instrument 
 in his own name. 
 
 Negotiable paper derived its privilege originally 
 from the custom of merchants which was incorpor- 
 ated in the common law, as early as the days of 
 Magna Charta ; subsequently, however, it was held 
 a promissory note was not negotiable, although bills 
 
 [3] 
 
4 THE NEGOTIABLE INSTRUMENTS LAW. 
 
 of exchange were. This led to the statute of Anne 
 (3 and 4 Anne, C. 9), which put promissory notes on 
 the same basis as bills of exchange. 
 
 Negotiability is distinguished from assignability in 
 several respects. Assignability pertains to contracts 
 in general and is the legal method of transferring 
 property or rights evidenced by the contract. 
 
 Under the assignment the assignee gets no better 
 title than his assignor, and the assignment is not com- 
 plete without notice to the debtor. 
 
 Van Keuren v. Corkins, 66 N. Y. 'j'j; Trustees of 
 Union College v. Wheeler, 61 N. Y. 88. 
 
 Originally, the assignee could not sue ; the suit 
 must be brought by his assignor at common law ; 
 this was modified in equity so as to allow the 
 assignee to sue in his own interest, but in the name 
 of his assignor. At present, in all of the Code 
 States, the assignee is the real party in interest and 
 may sue in his own name. 
 
 Negotiability, on the other hand, facilitates the 
 transfer of instruments to which it appertains, be- 
 cause the bona fide possessor for value is presumed 
 to be the true owner and to have good title, and, un- 
 less he has notice is not subject to equities existing 
 between prior parties. The transfer is effected by 
 
INTRODUCTORY. 5 
 
 indorsement and delivery, and a good consideration 
 for the contractual relation is conclusively presumed 
 as between parties not immediate; these are the 
 principal features as to negotiability. 
 
 The following statute is, in most respects, adapted 
 from the English Bills of Exchange Act adopted in 
 1882 (45 and 46 Vict. C. 6i) In some cases pro- 
 visions have been added to bring the statute in con- 
 formity with the American doctrines. The changes 
 from the common law are carefully noted, as well as 
 the changes made in the New York law. 
 
 This law was first recommended at the conference 
 of the Commissioners on Uniformity of Laws in 
 1895. It was subsequently referred to a sub-com- 
 mittee of which the members were Lyman D. 
 Brewster, of Connecticut; Henry C. Willcox, of 
 New York, and Frank Bergen, of New Jersey. It 
 has been passed in the year 1897 in New York, Con- 
 necticut, Colorado and Florida, and is (with the 
 exception of three sections, to-wit, 330-332 inclusive, 
 applying exclusively to New York), uniform in all 
 these States, except as to numbering of sections. 
 
ERRATA. 
 
 The following presumable errors were In original law: 
 
 Page 30, sec. 33. Word "negotiable," in last sentence, eyidentljr in- 
 tended to be "negotiated." 
 
 Page 43, sec. 53. " On," in title should probably be " for." 
 
 Page 50, sec. 67. "Restricting," in title, probably should be "re- 
 strictire." 
 
 Page 56, sec. 80, title. " Said" probably intended for " prior." 
 
 Page 68, sec. 119, " Section sixty-five " perhaps means section " on* 
 hundred and fifteen." 
 
 Page 69, sec. 130. Word " liable " should probably be inserted after 
 word " primarily " in first sentence. 
 
 Page 78, sec. 133 (4). Word " other" presumably comes after "in," so 
 as to read " in any other case." 
 
 For reasons, best known to those who had charge of the bill, a num* 
 ber of errors, most of which, however, are obvious on their face, have 
 crept into the original law. These are shown, in this edition, in the 
 above table of errata, and also by foot notes. 
 
 It will be noticed by the reader that a number of sections are -imitted 
 at the end of each article. This is so in the original act. 
 
The Negotiable Instruments Law. 
 
 CHAPTER 612, LAWS 1897; CHAPTER 50 
 OF THE GENERAL LAWS. 
 
 (Became a law May 19, 1897.) 
 
 CHAPTER 50 OF THE GENERAL LAWS. 
 
 THE NEGOTIABLE INSTRUMENTS LAW. 
 
 Akticle I. General Provisions. (§ 1-17.) 
 
 II. Form and Interpretation of Negotiable Instrumeu 
 (§§ 20-42.) 
 
 III. Consideration. (§§ 50-55.) 
 
 IV. Negotiation. (§§ 60-80.) 
 
 V. Rights of Holder. (§§ go-98.) 
 VI. Liabilities of Parties. (§§ 110-119.) 
 VII. Presentment for Payment. (§§ 130-148.) 
 VIII. Notice of Dishonor. (§§ 160-189.) 
 IX. Discharge of Negotiable Instruments. (§§ 200-206.) 
 X. Bills of Exchange ; Form and Interpretation. {§§ 210- 
 
 215.) 
 XI. Acceptance. (§§ 220-230.) 
 XII. Presentment for Acceptance. (§§ 240-24S.) 
 
 XIII. Protest. (§§ 260-268.) 
 
 XIV. Acceptance for Honor. (§§ 280-290.) 
 XV. Payment for Honor. (§§ 300-306.) 
 
 XVI. Bills in a Set. (§§ 310-315.) 
 XVII. Promissory Notes and Checks. (§§ 320-325.) 
 XVIII. Notes Given for a Patent Right and for a Specula. 
 TivE Consideration. (§§ 330-332.) 
 XIX. Laws Repealed, When to Take Effect. (§§ 340-341.) 
 
 [7] 
 
8 THE NEGOTIABLE INSTRUMENTS LAW. 
 
 ARTICLE I. 
 
 GENERAL PROVISIONS. 
 Section i. Short title. 
 
 2. Definitions and meaning of terms. 
 
 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. 
 
 Short title. 
 
 Section i. This act shall be known as the nego- 
 tiable instruments law. 
 
 Definitions and meaning of terms. 
 
 § 2. 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 possession of a bill 
 or note which is payable to bearer. 
 
 " Bill " means bill of exchange, and " note " means 
 negotiable promissory note. 
 
 " Delivery " means transfer of possession, actual 
 or constructive, from one person to another. 
 
 "Holder" means the payee or indorsee of a bill 
 or note, who is in possession of it, or the bearer 
 thereof. 
 
GENERAL PROVISIONS. 9 
 
 "Indorsement" means an indorsement completed 
 by delivery. 
 
 "Instrument" means negotiable instrument. 
 
 " Issue " means the first delivery of the instru- 
 ment, complete in form to a person who takes it as 
 a holder. 
 
 " Person " includes a body of persons, whether 
 incorporated or not. 
 
 " Value " means valuable consideration. 
 
 "Written" includes printed, and "writing" in- 
 cludes print. 
 
 These definitions are taken almost bodily from the English 
 Act, § 2 (45 and 46 Vic. ch. 61). 
 
 Person primarily liable on instrument. 
 
 § 3. The person " primarily " liable on an instru- 
 ment is the person who by the terms of the 
 instrument is absolutely required to pay the same- 
 All other parties are " secondarily " liable. 
 
 Reasonable time, what constitutes. 
 
 § 4. In determining what is a "reasonable time" 
 or an " unreasonable time " regard is to be had to 
 the nature of the instrument, the usage of trade or 
 business (if any) with respect to such instruments, 
 and the facts of the particular case. 
 
 Time, how computed ; when last day falls on holiday. 
 
 § 5. Where the day, or the last day, for doing any 
 act herein required or permitted to be done falls on 
 
lO THE NEGOTIABLE INSTRUMENTS LAW. 
 
 Sunday or on a holiday, the act may be done on the 
 next succeeding secular or business day. 
 
 L. 1897, ch. 614, in appendix giving holidays. 
 Application of chapter. 
 
 § 6. The provisions of this act do not apply to 
 negotiable instruments made and delivered prior to 
 the passage hereof. 
 Law merchant ; when governs. 
 
 I 7. In any case not provided for in this act the 
 rules of the law merchant shall govern. 
 
 ARTICLE II. 
 
 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 negotiabilitjr. 
 
 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 of 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. 
 
 37. Liability of persons 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. 
 
FORM AND INTERPRETATION. J I 
 
 Form of negotiable instrument. 
 
 § 20. An instrument to be negotiable must con- 
 form to the following requirements : 
 
 1. It must be in writing and signed by the maker 
 or drawer. 
 
 2. Must contain an unconditional promise or 
 order to pay a sum certain in money ; 
 
 3. Must be payable on demand, or at a fixed or 
 determinable future time ; 
 
 4. Must be payable to order or to bearer, and 
 
 5. Where the instrument is addressed to a 
 drawee, he must be named or otherwise indicated 
 therein with reasonable certainty. 
 
 This section states the generally accepted rules as to the ele- 
 ments making up negotiability. For notes on each particular sub- 
 ject, see succeeding sections. 
 
 Subd. I. The word " writing " includes print. Sec. 2. Ante. 
 
 The material on which the writing or printing is made is, pre- 
 sumably, of no importance. Mr. Daniel says that a valid nego- 
 tiable instrument may be on stone, wood or metal. 
 
 Daniel, Negotiable Instruments, sec. 77. 
 
 As to signature, it is presumed that the general rule will apply 
 here that it does not matter upon what portion of the instrument 
 the signature of the maker is, provided it is signed with the 
 intent to become maker or drawer. A party signing an instru- 
 ment by his initials is effectually bound thereby. 
 
 Palmer v. Stephens, i Denio, 471. 
 
 So an indorsement by initials has been held to be sufficient. 
 
 Merchants' Bank v. Spicer, 6 Wend. 443. 
 
 Subd. 2. While the bill must contain an order as contra-dis- 
 tinguished from a simple request, and the note an absolute 
 promise, the mere fact that words of civility are used will not 
 destroy the character of the instrument. 
 
 Hoyt v. L)fnch, 2 Sand. 328. 
 
12 THE NEGOTIABLE INSTRUMENTS LAW. 
 
 What instruments are negrotlable. 
 
 A simple " I. O. U." or due bill is not usually a promissory 
 note, unless there are words attached to it showing it to be abso- 
 lutely payable. 
 
 Gay V. Rooke, 151 Mass. 113. 
 
 An instrument in the words, " Due A. $325, payable on 
 demand, " is a promissory note. 
 
 Kimball V. Huntington, 10 Wend. 675. 
 
 A certificate of deposit, if payable to the order of the person 
 who has deposited the money, is equivalent to a promissory note. 
 
 Baker v. Leland, 9 App. Div. 365. 
 
 So a coupon bond, with interest certificates attached, is in 
 effect a promissory note, possessing the attributes of negotiable 
 paper where the coupons promise payment to the bearer. 
 
 Everton v. Nat. Bank of Newport, 66 N. Y. 14. 
 
 But an order upon a savings bank is not negotiable when upon 
 the face, though below the signature, it states that a savings bank 
 book must accompany the order. 
 
 White V. Gushing, 88 Me. 339. And see Smith v. Bklyn. 
 Sav. B'k, loi N. Y. 58. 
 
 Bills of lading. 
 
 Bills of lading are sometimes called ^uasi-negotiahle, because 
 they are transferable by indorsement, although they do not call 
 for the payment of money. But it is also well settled that goods 
 shipped by a bill of lading drawn to the order of the shipper, 
 may be transferred by delivery of the bill without indorsement. 
 
 See Merchants' Bank v. Union, etc. Co., 69 N. Y. 373, and 
 cases cited. 
 
 As to the power of factors holding bills of lading or warehouse 
 receipts, to pledge the same as security, see Laws 1830, c. 179, 
 sec. 3. But generally speaking the ^«a«-negotiability of bills of 
 lading does not extend to allowing the possessor thereof to trans- 
 fer property in the chattels, except by virtue of a title or authority 
 from the true owner. 
 
 Barnard v. Campbell, 55 N. Y. 456. 
 
 Certificates of stock. 
 
 A certificate of stock is also said to be ^uast'-negotiable, which 
 means that where the real owner has conferred upon another the 
 
FORM AND INTERPRETATION. 1 3 
 
 apparent power to dispose of stock, a bona fide purchaser from 
 such transferee will be protected though the latter exceed his 
 authority. But the purchaser of the stock is subject to the lien 
 of the company for debt, even though he is ignorant of the lien. 
 Hammond v. Hastings, 134 U. S. 401; Leitch v. Wells, 48 
 N. Y. 586, 613; McNeil V. Tenth National Bank, 46 N. Y. 325. 
 
 Receivers' certificates. 
 
 A receiver's certificate, given for the expense of the business 
 is not, ordinarily, regarded as negotiable because it binds no one 
 personally and no action may be maintained thereon. It is simply 
 payable out of the surplus, if there be one. 
 
 Turner V. Peoria R. R., 75 111. 134. 
 
 As to what constitutes money. 
 
 The New York cases generally hold that whatever may be used 
 as a legal tender is money, and also all lawful current money of 
 this State, which by common usage is regarded as cash, but, 
 generally speaking, the fact that coins of other countries are 
 current, will not make such coins money within the meaning of 
 this provision. The following cases illustrate the New York rule : 
 
 Where a bill was drawn in Montreal, on a business firm in 
 Whitehall, payable in New York city, in gold dollars, it was held 
 by the Court of Appeals to be a negotiable bill. This was put 
 upon the ground that at that time (1870) there were two 
 descriptions of lawful money in use under acts of Congress, and 
 as gold and silver were recognized as money current in business, 
 and as legal tender by the statute, it was decided that merchants 
 might be permitted to select that description of money recog- 
 nized by law which was most convenient to the parties without 
 destroying the negotiability of the instrument. 
 
 Chrystler v. Renois, 43 N. Y. 209. 
 
 In an early case, a note payable in " York State bills " or 
 specie was held negotiable. 
 
 Supreme Court, 1812, Keith v. Jones, 9 Johns. 120. 
 
 And a note payable in bank notes current in the city of New 
 York was held negotiable. 
 
 Judah V. Harris, 19 Johns. 144. 
 
 A certificate of deposit, payable to the order of the depositor, 
 in current bank notes, was held to be negotiable. 
 
 Pardee v. Fish, 60 N. Y. 265. 
 
14 THE NEGOTIABLE INSTRUMENTS LAW. 
 
 But a promise to pay jSzoo in Pennsylvania paper currency was 
 held not negotiable. 
 
 Leiber v. Goodrich, 5 Cowen, 186. 
 
 In order to be negotiable, a promissory note must be payable 
 either in specie or in funds, which the court can judicially notice 
 as equivalent here to money. Held, therefore, that a note pay- 
 able in " Canada money " was not negotiable. 
 
 Thompson v. Sloan, 23 Wend. 71. See also on this point, 
 Jones V. Fales, 4 Mass. 245. 
 
 But in Michigan a note payable in " Canada currency " was 
 held to be negotiable. 
 
 Black V. Ward, 27 Mich. 193, 15 Am. Rep. 162. 
 
 And in Texas a note payable in Mexican silver dollars was held 
 to be negotiable. 
 
 Hogue V. Williamson, 85 Texas, 553, reported, with notes, in 
 20 L. R. A. 481, distinguishing Thompson v. Sloan, 23 Wend. 
 71, and Black v. Ward, 27 Mich. 193, supra. 
 
 The two latter cases proceed upon the principle that where the 
 foreign money in which the instrument is payable may be judi- 
 cially reduced to domestic money of equivalent value, there is 
 no uncertainty. 
 
 See sec. 25, subd. 5, post. 
 
 Subds. 3 and 4. See notes to sees. 23, 27 and 28, post. 
 
 Subd. 5. See notes to art. 10, post. 
 
 Certainty as to sum ; what constitutes. 
 
 § 21. The sum payable is a sum certain within 
 the meaning of this act, although it is to be paid : 
 
 1. With interest; or 
 
 2. By stated installments ; or 
 
 3. By stated installments, with a provision that 
 upon default in payment of any installment or of 
 interest, the whole shall become due ; or 
 
 4. With exchange, whether at a fixed rate or at 
 the current rate ; or 
 
 5. With costs of collection or an attorney's fee, in 
 case payment shall not be made at maturity. 
 
FORM AND INTERPRETATION. 1$ 
 
 The foregoing section, with the exception of the last subdi- 
 vision, is taken from the English Bills of Exchange Act, sec. 9, 
 subd. I. 
 
 Subd. I . The agreement to pay interest is a mere incident or 
 accessory to the debt itself, and where the debtor reserves an 
 alternative right to pay interest in coin or paper, the negotiability 
 of the instrument is not affected thereby. 
 
 Dinsmore v. Duncan, 57 N. Y. 573, 15 Am. Rep. 534. 
 
 Subds. 2 and 3. The principle stated in these two subdivisions 
 was established by the case of Carlon v. Kenealy, 1 2 Mees. & 
 Wels. 139, 13 L. J. Ex. 64. 
 
 A note by which the maker promised to pay to the officers of 
 the corporation a certain sum for five shares of the capital 
 stock of the corporation, in such manner and proportion as the 
 president, directors, etc., should require, was held to be a good 
 promissory note in President, etc. of the Goshen, etc. Turnpike 
 Road V. Hurtin, 9 Johns. 217. 
 
 Subd. 4. It has been a mooted question as to whether instru- 
 ments which specify that they are to be paid with " current 
 exchange," are negotiable or not. The lower Federal courts 
 have held that such instruments are not negotiable. 
 
 Hughitt V. Johnson, 28 Fed. Rep. 865 ; Bank v. McMahon, 
 48 Fed. Rep. 283. 
 
 So the courts of many other States have held to the same effect. 
 
 In Hastings v. Thompson (54 Minn. 184, 55 N. W. 968), 
 Johns. 111. Cas. on Bills and Notes, page 33, where such note was 
 held negotiable and the authorities collected on both sides, the 
 court says: " We have been unable to find that the Supreme 
 Court of the United States or of either Massachusetts, New York 
 or Pennsylvania, has ever passed upon the question. ' ' Presuma- 
 bly, however, the courts of New York would have held such a bill 
 negotiable on the same ground that they have held instruments 
 payable in current funds negotiable. 
 
 See Pardee v. Fish, 60 N. Y. 265. 
 
 This statute, however, settles all doubt on this mooted question. 
 
 Subd. 5. This provision is new in the State of New York. 
 
 The rule that a stipulation for attorney's fees does not affect 
 the negotiabihty of the instrument containing it, is held in a large 
 number of western cases, while it is denied in other jurisdictions. 
 A collection of these cases will be found in the note to Bowie v. 
 Hall, I L. R. A. 546 (69 Md. 433). 
 
l6 THE NEGOTIABLE INSTRUMENTS LAW. 
 
 In Pennsylvania, the courts enforce the stipulation but deny 
 the negotiability of the note. 
 
 Woods V. North, 84 Penn. St. 410. 
 
 Mr. Daniel, in his work on Negotiable Instruments, sec. 62a, 
 contends that there is no reason for the non-negotiability of a 
 note calling for the payment of attorney's fees, if such fees are 
 fixed either by statute or by the instrument itself. 
 
 When promise is unconditional. 
 
 I 22. An unqualified order or promise to jjay is 
 unconditional within the meaning of this act, 
 though coupled with : 
 
 1. An indication of a particular fund out of which 
 reimbursement is to be made, or a particular account 
 to be debited with the amount; or 
 
 2. A statement of the transaction which gives 
 rise to the instrument. 
 
 But an order or promise to pay out of a particular 
 fund is not unconditional. 
 
 This section is taken from the English Bills of Exchange Act, 
 sec. 3 subd. 3. 
 
 It is an unquestioned rule that an order or promise to pay 
 money out of a particular fund is neither a negotiable bill nor note, 
 but the English cases hold that such an instrument may be valid 
 as an equitable assignment. 
 
 Brice v. Bannister, 3 Q. B. D. 569, 47 L. J. Q. B. 722. 
 
 The New York rule is to the same effect. See cases cited under 
 note to subd. i, infra. 
 
 The qualifications mentioned in the subdivisions of the section 
 are equally well settled, as will be seen by the following cited cases. 
 
 Subd. I . Where there was a statement in the written warrant 
 of a municipal corporation that the treasurer would pay to the 
 order of the payee a certain amount " out of any funds belong- 
 ing to the city, not before specially appropriated," and " charge- 
 able to general city fund, ' ' the instrument was held to be of the 
 rharacter of a negotiable promissory note. 
 
FORM AND INTERPRETATION. I7 
 
 Bull V. Simms, 23 N. Y. 570. See also Oatman v. Taylor, 29 
 N. Y. 649, 665. 
 
 So where an instrument was signed by the mayor, and coun- 
 tersigned by the clerk, ordering the treasurer of a municipal 
 corporation to pay a person therein designated " $1,500.00 for 
 award No. 7, and charge to Bedford road assessment," the 
 instrument was held to be negotiable. 
 
 Kelley v. Mayor, etc., 4 Hill, 263. 
 
 Where one gave to the holders of a promissory note made by 
 her a writing directed to the defendant, her partner, requesting 
 the payment to the holders of the amount of the note, followed 
 by the following expression, " and deduct the same from my 
 share of the profits of the partnership business, ' ' it was held that 
 the writing was not a bill of exchange, but an equitable assign- 
 ment of so much of the profits as should suffice to pay the note. 
 
 Hunger v. Shannon, 61 N. Y. 251. See also Brill v. Tuttle, 
 81 N. Y. 454- 
 
 Where a draft was drawn upon an executor, containing the 
 absolute direction to pay a fixed sum, and then followed the words, 
 " and charge the amount against me and of my mother's estate," 
 it was held that it was negotiable. 
 
 Schmittler v. Simon, loi N. Y. 554. 
 
 On a subsequent argument of the above-mentioned case, it 
 was held, in line with all the other authorities, that where the 
 words of an instrument are not entirely intelligible, oral evidence 
 of the circumstances attending its execution is admissible in order 
 to show the intent of the parties. 
 
 Schmittler V. Simon, 114 N. Y. 176. 
 
 See hereon cases collected in i Ames' Bills and Notes, page 
 29, note. 
 
 Subd. 2. One having purchased an engine, gave a note in the 
 following form; " Fourteen and a half months after date I 
 promise to pay to the order of the American Engine Company, 
 four hundred and fifty dollars, at seven per cent, at the Havana 
 National Bank at Havana, N. Y., value received, being in part 
 payment for a portable engine, which engine shall be and remain 
 the property of the owner of this note, until the amount hereby 
 secured is fully paid. ' ' Signed. Held, that this was a negotia- 
 ble note and that it was the duty of the holder to demand pay- 
 ment of the maker and notify the indorser of its non-payment. 
 
 Mott V. Havana National Bank, 22 Hun, 354, citing Arnold 
 
l8 THE NEGOTIABLE INSTRUMENTS LAW. 
 
 ,Vk Rock River, etc. R. R. Co., 5 Duer, 207; Willoughby v. 
 Comstock, 3 Hill, 389; Hodges v. Shuler, 22 N. Y. 114. 
 
 And where an instrument is made by a railroad corporation, 
 promising to pay to W. S., or order, " a thousand dollars, with 
 interest thereon payable semi-annually as per interest warrants 
 hereto attached as the same shall become due, or upon the sur- 
 render of this note together with the interest warrants not due 
 to the treasurer, at any time until six months of its maturity, ' ' it 
 was held to be a negotiable note. 
 
 Hodges V. Shuler, supra. 
 
 An order drawn by the president of a corporation directing 
 the treasurer to pay the plaintiffs a certain amount, and specify- 
 ing that the said amount is due them for contract work, is a 
 promissory note. (The reason why this was called a promissory 
 note instead of a bill of exchange, is that both parties [the drawer 
 and drawee] being officers of the same corporation, it falls 
 under the general rule in such cases. ) 
 
 See sec. 214, post Fairchild v. Ogdensburgh, etc. R. R. 
 Co., 15 N. Y. 337. 
 
 Determinable future time ; what constitutes. 
 
 § 23. 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 ; 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. 
 
 An instrument payable upon a contingency is not 
 negotiable, and the happening of the event does .not 
 cure the defect. 
 
 This section is substantially section 1 1 of the English Bills of 
 Exchange Act, with the exception of subd. 2, which is added. 
 
FORM AND INTERPRETATION. I9 
 
 Subd. 2. Making an instrument payable on or before a certain 
 date is in most of the States regarded as negotiable. 
 
 See Tiedeman on Negotiable Paper, sec. 25a ; First National 
 Bank of Springfield v. Skeen, loi Mo. 683, reported in 11 L. R. 
 A., 748, with notes. 
 
 In Massachusetts, such paper does not seem to be regarded 
 as negotiable. 
 
 Stultz V. Silva, 119 Mass. 139. 
 
 The provision seems to be new as to New York State. 
 
 Subd. 3. Where an order was drawn upon the defendant, as 
 follows: " Forty days after date pay to the order of G. and A., 
 |ii,i5o.oo, and charge same to account of contract. On account 
 of contract when completed and satisfactory, ' ' which was accepted 
 by the defendant, it was held by the Court of Appeals that the 
 order was not a bill of exchange absolutely payable at the end of 
 forty days whether the contract was completed or not. 
 
 Home Bank v. Drumgoole, 109 N. Y. 63. 
 
 An order payable on the sale of certain carriages is not nego- 
 tiable. 
 
 De Forrest v. Frary, 6 Cow. 151. 
 
 Where one made an instrument in the following terms : 
 " Thirty days after death, I promise to pay to C, ^1,500.00, 
 with interest, " it is a promissory note. 
 
 Carnwright v. Gray, 127 N. Y. 92. 
 
 Such a note is not negotiable, however, because it contains no 
 words signifying that the note is payable to order or to bearer. 
 
 So a written statement by the maker to the effect that a cer- 
 tain amount is due to H., and a direction that the same should 
 be paid by the executors, is a promissory note. 
 
 Hegeman v. Moon, 131 N. Y. 462. 
 
 There is no reason why such promissory notes, if made to order 
 or bearer, should not be regarded as negotiable^ 
 
 An instrument acknowledging the receipt of a certain sum of 
 money and promising to pay the same to W., or his order, " on 
 return of this receipt, with 7 per cent per annum interest, " is a 
 negotiable promissory note. 
 
 Frank v. Wessells, 64 N. Y. 155. 
 
 But where in an action to recover interest upon certain coupons, 
 which were cut from railway bonds and on their face contained 
 a reference to bonds issued by the defendant, and it further 
 appeared that these bonds, and the mortgage given to secure the 
 
20 THE NEGOTIABLE INSTRUMENTS LAW. 
 
 payment of the same, contained conditions that the time of pay- 
 ment of principal and interest might be postponed by a vote of 
 a majority of holders of a series of bonds, issued simultaneously 
 with those from which the coupons were cut, it was held that the 
 coupons were not negotiable instruments. 
 
 McClelland v. Norfolk Southern R. R., no N. Y. 469. 
 
 A note which states that it is payable to the order of the payee, 
 at a certain fixed time, and states further that it is one of a series 
 of notes given for cars sold by the payee to the maker, and is to 
 become due upon the failure to pay any one of the series, and 
 that it is agreed that the title of the cars shall remain in the payee, 
 until all the notes are paid, is a valid negotiable promissory note. 
 
 Chicago Ry. Equipment Co. v. Merchants' Nat. Bank of 
 Chicago, 136 U. S. 268. 
 
 Additional provisions not affecting negotiability. 
 
 § 24. An instrument which contains an order or 
 promise to do any act in addition to the payment of 
 money is not negotiable. But the negotiable char- 
 acter of an instrument otherwise negotiable is not 
 affected by a provision which: 
 
 1. Authorizes the sale of collateral securities in 
 case the instrument be not paid at maturity ; or 
 
 2. Authorizes a confession of judgment if the 
 instrument be not paid at maturity; or 
 
 3. Waives the benefit of any law intended for the 
 advantage or protection of the obligor ; or 
 
 4. Gives the holder an election to require some- 
 thing to be done in lieu of payment of money. 
 
 But nothing in this section shall validate any 
 provision or stipulation otherwise illegal. 
 
 Where there was an instrument in writing by which X. directed 
 Y. to pay Z., or bearer, a certain amount and take up X.'s note 
 of that amount, it was held not a bill of exchange. 
 
 Cook V. Satterlee, 6 Cow. 108. 
 
FORM AND INTERPRETATION. 21 
 
 Subd. I . Where the maker of an instrument, in form a nego- 
 tiable promissory note, also states in the instrument that it has 
 deposited bonds as collateral security with a certain person, and 
 gives power to the person with whom the bonds are deposited to 
 sell the same upon non-payment of the note, at maturity, and 
 apply the proceeds to the payment of the note, held, that the 
 note is negotiable. 
 
 Arnold v. Rock River, etc. R. R. Co., 5 Duer, 207. See i 
 Ames' Cases on B. & N. 61, followed in Heard v. Dubuque Co. 
 Bank, 8 Neb. 10, 30 Am. Rep. 811, citing, also, Collins v. 
 Bradbury, 64 Me. 37. 
 
 The court says in the Nebraska case : " The law seems to be 
 settled that although it may appear on the face of the note that 
 its payment is secured by collaterals in personal property, or 
 mortgage of real property, yet if otherwise in proper form, it is 
 negotiable. ' ' 
 
 Subds. 2 and 3. These provisions are entirely new in the State 
 of New York. They seem to have been borrowed from the State 
 of Pennsylvania. 
 
 See Daniel on Neg. Inst., sec. 61, and cases there collected. 
 
 It has heretofore been held in the State of New York, that a 
 house-holder cannot by an executory agreement estop himself 
 from the right to claim a statutory exemption from execution; 
 and this is on the ground that the exemption is intended for the 
 benefit of his family as well as for himself. 
 
 Wilder V. Stewart, 21 Wkly. Dig. 93. 
 
 Subd. 4. An instrument by which a railroad corporation prom- 
 ises to pay a certain sum, or upon the surrender of the instru- 
 ment, together with the interest warrants not due, to the 
 treasurer, to issue certain shares of stock in exchange therefor, 
 has been held to be a negotiable promissory note on the ground 
 that the option was with the holder. 
 
 Hodges V. Shuler, 22 N. Y. 114. 
 
 So an instrument in the following form : ' ' Four months after 
 date, I promise to pay to the order of M., fifty-five dollars, at 
 my store (or in goods on demand) value received, ' ' has been 
 held a negotiable promissory note. The court lays down the rule, 
 that if there appears upon the face of the note any contingency 
 which would make it payable in anything other than money, then 
 it loses its negotiable quality, but where the debtor promises to 
 pay in money and he has no election to do anything else, but the 
 
22 THE NEGOTIABLE INSTRUMENTS LAW. 
 
 choice is left with the holder as to receiving something other than 
 money, the negotiable quality of the instrument is not affected. 
 Hosstatter v. Wilson, 36 Barb. 307. 
 
 Omissions ; seal ; particular money. 
 
 § 25. The validity and negotiable character of an 
 instrument are not affected by the fact that : 
 
 1. It is not dated; or 
 
 2. Does not specify the value given, or that any 
 value has been given therefor ; or 
 
 3. Does not specify the place where it is drawn 
 or the place where it is payable ; or 
 
 4. Bears a seal ; or 
 
 5. Designates a particular kind of current money 
 in which payment is to be made. 
 
 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. 
 
 The first three subdivisions are from the English Bills of Ex- 
 change Act, sec. 3. 
 
 Subd. I . The date of a negotiable instrument is merely prima 
 facie evidence of the time of its inception. It has no real 
 inception until delivery, and for all legal purposes it is to be con- 
 sidered as made on the day it is delivered. If the date and time 
 of delivery are not coincident, the time when it in truth has its 
 inception, may be shown in answer to the plea of infancy or 
 coverture, or to avoid the imputation that it was dishonored when 
 received by the holder. 
 
 Cowing V. Altman, 71 N. Y. 435, and cases cited. 
 
 Subd. 2. The omission of the words, " for value received," in 
 a note is not material. 
 
 Underbill v. Phillips, 10 Hun, 591, citing i Chitty PI. 293, 
 note i; Kimball v. Huntington, 10 Wend. 675. 
 
 In an action upon a note, the plaintiff produced the promissory 
 
FORM AND INTERPRETATION. 23 
 
 note, which contained the words, " for value received," and 
 upon the outset, anticipating an attack by the defendants upon 
 consideration, attempted to establish such consideration a&iiaa.-' 
 tively. It was held that if the plaintiff had rested her case upon 
 the presumption of consideration, which the note itself imported, 
 the burden would have been cast upon the defendant to over- 
 throw this presumption, but having undertaken to establish the 
 consideration affirmatively, the presumption of a valid considera- 
 tion was no longer of any avail. 
 
 Bruyn V. Russell, 52 Hun, 17. 
 
 On a later trial of the same case, the payee gave no evidence 
 of the existence of a consideration, except the production of the 
 note and the proof of the maker's signature. Defendants then 
 called a witness who testified to a conversation with the plaintiff, 
 in which she stated that the note was a gift. Held, under this 
 evidence, that plaintiff was not entitled to recover. The court, 
 in this case, quotes from Perley v. Perley, 144 Mass. 104, to the 
 effect that while the production of a note and proof of defend- 
 ant's signature make a prima facie case for plaintiff, the burden 
 of proof still remains upon the plaintiff to prove consideration, 
 and if there is any evidence upon this on behalf of the defend- 
 ant, plaintiff must show, upon a preponderance of the whole evi- 
 dence, that the note was given for a valuable consideration. 
 
 Bruyn v. Russell, 60 Hun, 280. See, also, Simpson v. Davis, 
 iig Mass. 269; Delano v^. Bartlett, 6 Cush. 364; Carnwright v. 
 Gray, 57 Hun, 518; i Daniel, Neg. Inst., sec. 164. See art. 
 3, posty on Consideration. 
 
 Subd. 3. On the principle that neither the date nor the place 
 where drawn or payable is essential, see Daniel, Neg. Inst., 
 chap. 3, sec. 11. 
 
 Where a note is not payable at any particular place and the 
 maker has a known address within the State, the holder is bound 
 to make a demand of payment there in prder to charge the 
 indorser. 
 
 Anderson V. Drake, 14 Johns. 114. 
 
 But where the maker of a promissory note removes from the 
 State and continues to reside abroad until after its maturity, a 
 demand of payment at his last place of residence within the 
 State is sufficient. 
 
 Foster v. Julien, 24 N. Y. 28. See notes on Acceptance and 
 Notice of Dishonor, post. 
 
24 THE NEGOTIABLE INSTRUMENTS LAW. 
 
 Subd. 4. This completely changes the rule heretofore obtain- 
 ing in New York State. Instruments under seal imposing obli- 
 gations upon private individuals have generally been held to be 
 non-negotiable. 
 
 Merritt v. Cole, 9 Hun, 98, and cases cited. 
 
 But this was held not to apply to the case of public securities 
 (Dinsmore v. Duncan, 57 N. Y. 573), or to the commercial 
 paper of a corporation. (Chase National Bank v. Faurot, 149 
 N. Y. 532, collecting the cases.) 
 
 Subd. 5. See notes to sec. 20, subd. 2, ante. 
 
 The latter part of this subdivision doubtless refers to notes 
 given for patent rights or for speculative consideration. 
 
 See Chap. 613, Laws 1897, post. 
 
 When payable on demand. 
 
 § 26. An instrument is payable on demand : 
 
 1 . Where it is expressed to be payable on demand, 
 or at sight, or on presentation ; or 
 
 2. In which no time for payment is expressed. 
 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. 
 
 This is section 10 of the English Bills of Exchange Act, with 
 the addition of the clause in the last paragraph of subdivision 2, 
 referring to the person issuing. The English annotator of the 
 Bills of Exchange Act, Mr. Robert Campbell, says (4 Eng. Rul. 
 Cas. 217) : " The above clause of the act extends to the indorser 
 who indorses after maturity, the same rule which * * « 
 was established as to the acceptor. Chalmers (4th ed., p. 29) 
 mentions that before this enactment the English law (scil. as to 
 the case of the indorser) was obscure; and that the clause gives 
 effect to the American rule." 
 
 The rule of the text, so far as the acceptor is concerned, is 
 established by the early case of Mutford v. Walcot, i Ld. Ray- 
 mond, 574. 
 
FORM AND INTERPRETATION. 2$ 
 
 It is generally conceded by the authorities that a dishonored 
 bill or note does not lose its negotiable character thereby, and 
 where there is an indorsement after maturity, a note or bill as to 
 the indorser becomes payable within a reasonable time, upon 
 demand. 
 
 Leavitt v. Putnam, 3 N. Y. 494. 
 
 And while a demand is necessary in such cases, it has been 
 held that where a note was protested and afterwards sold by 
 the indorsers, without erasing their indorsement, they will be 
 held responsible for the payment of the same without further 
 notice. 
 
 St. John V. Roberts, 31 N. Y. 441. 
 
 Subd. 2 . When the statute gave days of grace, it was held that 
 an instrument in which no specified time for payment was men- 
 tioned, being payable immediately, was not entitled to any days 
 of grace. 
 
 Sackett v. Spencer, 29 Barb. 180. 
 
 To the same effect as the statement in the section above, see 
 Sheldon v. Heaton, 88 Hun, 535; First National Bank v. Price, 
 52 la. 570, 3 N. W. 639; Johns. 111. Cas., B. & N. 19. 
 
 A note given to an insurance company in terms payable in such 
 portions and at such times as the directors may require, is con- 
 strued to be in legal effect payable on demand. 
 
 Howland v. Edmunds, 24 N. Y. 307 ; Colgate v. Buckingham, 
 39 Barb. 177. 
 
 A note expressed to be payable at the maker's convenience, 
 he to be the sole judge of such convenience, has been construed 
 to be a note payable upon demand. 
 
 Smithers v. Junker, 41 Fed. Rep. loi; Johns. 111. Cas. B. & 
 N. 21. 
 
 When payable to order. 
 
 § 27. The instrument is payable to order where 
 it is drawn payable to the order of a specified person 
 or to him or his order. It may be drawn payable 
 to the order of : 
 
 I. -A payee who is not maker, drawer or drawee ; 
 or 
 
26 THE NEGOTIABLE INSTRUMENTS LAW. 
 
 2. The drawee* or maker; or 
 
 3. The drawee ; or 
 
 4. Two or more payees jointly ; or 
 
 5. One or some of several payees ; or 
 
 6. The holder of an office for the time being. 
 Where the instrument is payable to order the 
 
 payee must be named or otherwise indicated therein 
 with reasonable certainty. 
 
 Subd. 2. This changes the law. Notes made payable to maker 
 have heretofore been regarded as payable to bearer. See notes 
 to next section. 
 
 Subd. 5. This seems to change the rale of law as generally 
 understood. 
 
 A note payable to A. or to B. has ordinarily been constraed 
 not negotiable. 
 
 In Noxon v. Smith, 127 Mass. 485, a note payable to the 
 trustees of a church, or their collector, was held not negotiable. 
 
 See Daniel, sec. 103, with cases cited. 
 
 But it has been held that if it purports on its face to be for 
 value received, the setting forth of the note according to its 
 terms is a sufificient statement of the consideration, to enable the 
 plaintiff to recover as upon a contract. 
 
 Walrad v. Petrie, 4 Wend. 576; Davis v. Garr, 6 N. Y. 124. 
 
 This provision is borrowed from the English Bill of Exchange 
 Act, sec. 7. 
 
 Subd. 6. This is taken from sec. 7, of the English law. Mr. 
 Campbell (4 Eng. Rul. Cas. 136) says, it alters the law as laid 
 down in Corrie v. Sterling, 6 E. & B. 333. To same effect, 
 Dan. Neg Inst., sec. loi. 
 
 An instrument payable to the " Trustees of the A. L. Co., or 
 their successors in office, or order," has been held negotiable. 
 Davis V. Garr, 6 N. Y. 124. 
 
 * So in original — probably intended for drawer. 
 
FORM AND INTERPRETATION. 27 
 
 Certainty of payee. 
 
 In Dutchess Co. Ins. Co. v. Hachfield, i Hun, 675, a coupon 
 bond payable to a payee in blank, his executor, administrators 
 or assigns, was held negotiable. 
 
 When payable to bearer. 
 
 § 28. 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; 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 ; or 
 
 4. When the name of the payee does not purport 
 to be the name of any person ; or 
 
 5. When the only or last indorsement is an 
 indorsement in blank. 
 
 This section is, in substance, section 8 of the English Bills of 
 Exchange Act. 
 
 Subd. 3. The provision of the Revised Statutes repealed by 
 this statute (R. S., part 2, c. 4, t. 2, sec. 5) provided that note 
 made payable to the order of the maker thereof, "or to the order 
 of a fictitious person, shall, if negotiated by the maker, have the 
 same effect and be of the same validity as against the maker 
 and all persons having knowledge of the funds, as if payable to 
 bearer. ' ' 
 
 At common law, a bill made payable to the order of a fictitious 
 person was void, unless the circumstance was known to the 
 acceptor. 
 
 Bennett v. Farnell, i Camp. 130. 
 
 But the provision of the Revised Statutes to the effect that 
 the note shall have the same validity as against all persons having 
 knowledge of the facts as if payable to bearer, has been adjudi- 
 cated to mean simply that the facts of which the person must 
 have knowledge in order to give the note efficacy against him. 
 
28 THE NEGOTIABLE INSTRUMENTS LAW. 
 
 are simply that the note is payable to the order of the maker or 
 of a fictitious person. 
 
 Irving National Bank v. Alley, 79 N. Y. 536. 
 
 In Shipman v. The Bank of New York, 126 N. Y. 318, at 
 page 330, the court, in explaining the provision of the Revised 
 Statutes above referred to say : 
 
 " We are of the opinion, upon examination of the authorities 
 cited by counsel on both sides, that this rule applies only to paper 
 put in circulation by the maker, with knowledge that the name 
 of the payee does not represent a real person. 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. 
 (Irving National Bank v. Alley, 79 N. Y. 536; TumbuUv. Bowyer, 
 40 Id. 456; Vagliano v. Bank of England, L. R. [22 Q. B. D.] 
 103, s. c, on app. 23 Id. 243; Armstrong v. Pomeroy National 
 Bank, 46 Ohio St. 512 [7 Railway & Corporation Law Journal, 
 114]; Gibson v. Minet, i H. Black. 569.)" 
 
 It will be seen, upon comparison of the Revised Statutes with 
 the present statute, that the principal changes made are, first, 
 that an instrument payable to drawee or maker becomes payable 
 to order instead of to bearer. 
 
 See sec. 27, ante. 
 
 And, second, that the present statute extends the provision of 
 the Revised Statutes to include bills of exchange; a principle 
 already recognized, as has been seen, by the common law; and, 
 third, that there is no specific provision requiring that any other 
 party, save the one making the instrument payable to a fictitious 
 person, need have knowledge in in order to give the note efficacy 
 against him as one payable to bearer. 
 
 Subd. 4. Mechanics' Bank v. Strditon, 3 Abbt. Ct. App. Dec. 
 269. See sec. 37, post. 
 
 Subd. 5. See Watervliet Bank v. White, 1 Denio, 608. 
 
 Terms, when sufficient. 
 
 § 29. The instrument need not follow the lan- 
 guage of this act, but any terms are sufficient which 
 clearly indicate an intention to conform to the 
 requirements hereof. 
 
FORM AND INTERPRETATION. 29 
 
 Date presumption as to. 
 
 § 30. Where the instrument or an acceptance or 
 any indorsement thereon is dated, such date is 
 deemed prima facie to be the date of the making, 
 drawing, acceptance or indorsement, as the case may 
 be. 
 
 See notes to sec. 25, subd. i, ante. 
 
 Ante-dated and post-dated. 
 
 §31. 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 
 
 delivery. 
 
 This is sec. 13, subd. i, of the English Bills of Exchange Act, 
 in substance. 
 
 When date may be inserted. 
 
 § 32. Where an instrument expressed to be pay- 
 able at a fixed period after date is issued undated, or 
 where the 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. 
 The insertion 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. 
 
 This is, in substance, section 1 2 of the English Bills of Exchange 
 Act. Taken in connection with the following sections, it is prob- 
 
30 THE NEGOTIABLE INSTRUMENTS LAW. 
 
 ably declaratory of the law. In Page v. Morrel, 3 Abbt. Ct. App. 
 Dec. 433, the facts were: The note was made on June loth, 1859, 
 for the sum of ^50, payable thirty days after date; it was dated 
 ' ' June, ' ' but with a blank for the day of the month. Thus, 
 " June , 1859." In this condition the note was indorsed 
 
 by the defendant Nellis for the accommodation of the makers, 
 and on the loth day of June the makers transferred it, for value, 
 to one Wiles. On the isth of the month. Wiles transferred the 
 note to the plaintiffs, for value, and they, without the knowl- 
 edge of any of the other parties thereto, filled the blank with the 
 date with the figure "i," so as to make it " June i, 1859." It 
 was held that there was an implied authorization to fill the blank 
 date, and that the indorsers, who delivered the note in blank, 
 were bound by the date filled in. 
 
 See, also, Mitchell v. Culver, 7 Cowen, 336, and notes to next 
 section. 
 
 Blanks; when may be filled. 
 
 § 33- Where the instrument is wanting in any 
 material particular, the person in possession thereof 
 has 2l prima facie authority to complete it by filling 
 up the blanks therein. And a signature on a blank 
 paper delivered by the person making the signature 
 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 com- 
 pleted, 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 authority 
 given and within a reasonable time. But if any such 
 instrument, after completion, is negotiable to a holder 
 in due course, it is valid and effectual for all pur- 
 poses in his hands, and he may enforce it as if it had 
 
FORM AND INTERPRETATION. 3I 
 
 been filled up strictly in accordance with the author- 
 ity given and within a reasonable time. 
 
 This is taken from section 20 of the English Bills of Exchange 
 Act. This section, together with the one following (sec. 34), is 
 probably intended to be declaratory of the law, as it now is. 
 
 The principle seems to be that where an incomplete instrument 
 is delivered by the maker, who has by his own act or the act of 
 another, authorized or given an implied authority to put the 
 instrument in circulation as negotiable paper, there is an implied 
 authority in a bona fide holder to supply any lack which is sus- 
 ceptible of being supplied without alteration of the terms of the 
 instrument, in order to carry into effect the apparent intention 
 of the maker. 
 
 See Bigelow on Bills and Notes, page 571; Daniel on Neg. 
 Inst., sec. 842a. 
 
 It has been held that a party who entrusts another with his 
 acceptance in blank is responsible to a bona fide holder, even 
 though the acceptance has been filled in for a greater amount 
 than that which has been fixed as a limit by the acceptor. 
 
 Van Duser v. Howe, 21 N. Y. 531. 
 
 And when the maker of a note writes or leaves the word " at, " 
 but leaves the place of payment blank, a bona fide holder may 
 fill the blank, and even if negotiated contrary to the agreement 
 of the original parties, the note is still valid in the hands of a 
 bona fide holder. 
 
 Redlich v. Doll, 54 N. Y. 234. See cases cited in Snyder v. 
 Van Doren, 46 Wis. 602, 32 Am. Rep. 739. 
 
 But it is clear that there must be some authority expressed or 
 implied by an actual delivery for future use of the instrument. 
 So where bonds negotiable in form were in an imperfect condition, 
 in that they did not state where they were to be paid or in what 
 national money, nor the principal nor the interest, 'Jie filling out 
 of such words by one without authority is not available as against 
 the corporation, even in the hands of a bona fide holder. 
 
 Ledwich v. McKim, 53 N. Y. 307. 
 
 Where a defendant indorsed a promissory note for the maker's 
 accommodation, and delivered it to the maker with the time and 
 place of payment in blank, it was held that the maker had the 
 implied authority to fill in the blanks by inserting any time or 
 place he chose but that he was not authorized to insert the 
 
32 THE NEGOTIABLE INSTRUMENTS LAW. 
 
 words " with interest," as that was not necessarily within the 
 implied intent of the delivery. 
 
 McGrath v. Clark, 56 N. Y. 34. 
 
 It had been the uniform practice of the plaintiff corporation to 
 have its notes signed by both its president and treasurer, and the 
 trust company of which the defendant was receiver had been in 
 the habit of dealing largely in plaintiff's paper. Seven notes of 
 the company incomplete in not having the president's signature, 
 though there was a place left for him to sign, were negotiated by 
 a third party with the trust company, of which the defendant 
 was receiver. It was held that the trust company, in buying the 
 notes, was not a bona fide holder, and that the notes were not 
 enforceable as pecuniary liabilities. 
 
 Davis Sewing Machine Co. v. Best, 105 N. Y. 59. 
 
 Bonds of a town were issued by certain commissioners authorized 
 to issue them, who signed under the attestation clause, stating 
 that the commissioners had set their hands and seals thereto. 
 The only thing in the nature of a seal placed there by the com- 
 missioners was the letters " L. S. " after each name, which at that 
 time was not a legal seal. Defendant was a bona fide purchaser, 
 for a valuable consideration, of the bonds. When they came 
 into his hands seals had been affixed, covering the scrolls. The 
 Court of Appeals held that while the bonds were valid in the 
 hands of a bona fide holder, as the commissioners intended to 
 properly issue and execute the bonds, and the omission of the 
 seals was caused by their inadvertence, there was no implied 
 authority to add anything to the instrument (though this expres- 
 sion was distinctly obiter.^ 
 
 Town of Solon V. Williamsburgh Savings Bank, 114 N. Y. 122. 
 
 The discussion of the rule on page 136, by Bradley, J., is 
 instructive. It is as follows : 
 
 " It is urged on the part of the defendant that in view of the 
 reference in the attestation clause to seals, as affixed, with the 
 fact that the scroll before mentioned was added, afforded an 
 invitation or implied authority to any holder to afifix the requisite 
 seals. And cases are cited bearing upon that subject in relation 
 to uncompleted instruments. But the cases generally in which 
 that has been recognized and supported have been those where 
 the possession of the uncompleted paper has been intrusted to 
 persons under circumstances which permitted the inference of 
 authority to do it, and when, in view of such apparent authority, 
 
FORM AND INTERPRETATION. 33 
 
 it would be a fraud upon innocent parties taking in good faith to 
 permit the assertion to the contrary. (Ledwich v. McKim, 53 
 N. Y. 307; Chemung Canal Bk. v. Bradner, 44 Id. 680; Red- 
 lich V. Doll, 54 Id. 234; Van Duzer v. Howe, 21 Id. 531; Day 
 V. Saunders, 3 Keyes, 347; Mitchell v. Culver, 7 Cow. 336; 
 Boyd V. Brotherson, 10 Wend. 93; Michigan Bk. v. Eldred, 9 
 Wall. 544; Angle v. N. W. Mut. Life Ins. Co., 92 U. S. 330.)" 
 
 Incomplete instrument not delivered. 
 
 § 34. Where an incomplete instrument has not 
 been deUvered it will not, if completed and nego- 
 tiated, without authority, be a valid contract in the 
 hands of any holder, as against any person whose 
 signature was placed thereon before delivery. 
 
 See authorities cited to last section and next section. 
 
 Delivery; when effectual; when presumed. 
 
 § 35. Every contract on a negotiable instrument 
 is incomplete and revocable until delivery of the 
 instrument for the purpose of giving effect thereto. 
 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 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 delivery 
 thereof by all parties prior to him so as to make 
 them liable to him is conclusively presumed. And 
 3 
 
34 THE NEGOTIABLE INSTRUMENTS LAW. 
 
 where the instrument is no longer in the possession 
 of a party whose signature appears thereon, a valid 
 and intentional delivery by him is presumed until 
 the contrary is proved. 
 
 This section merely states a doctrine which has been estab- 
 lished by a number of cases in this State and elsewhere. On the 
 subject of conditional delivery, as between the immediate parties 
 and those having notice thereof, it has been held that any 
 instrument not under seal, including a promissory note, may be 
 delivered upon conditions, the observance of which between the 
 parties is essential to its validity, and that these conditions may 
 be established by parol evidence where the agreement was oral. 
 
 Bookstaver v. Jayne, 60 N. Y. 146. 
 
 Where at the time a note was discounted there was a distinct 
 understanding between the maker and the bank discounting that 
 the former should incur no liability by signing the note, it was 
 held that he was not liable thereon to the bank that discounted it. 
 
 Garfield National Bank v. Colwell, 57 Hun, 169. 
 
 The decision in that case was based upon that of Benton v. 
 Martin, 52 N. Y. 570, and Seymour v. Cowing, 4 Abbott's Court 
 of Appeals Decisions, 200, i Keyes, 532. And see, also, the 
 case of Higgins, as Receiver, etc. v. Ridgway, 153 N. Y. 130, 
 affirming 90 Hun, 398, to the same effect. 
 
 The defendant made an oral agreement with the plaintiff for 
 a share in mining properties, in case he wished to retain the 
 share. He gave a note for the amount which he was to pay for 
 the share, with the oral understanding that it was not to be used 
 until after he had decided whether to retain his interest or not. 
 Subsequently defendant offered to surrender the deed which he 
 had received and asked for the note. This was refused and the 
 plaintiff brought his action. The court held that the evidence 
 of the oral understanding offered by the defendant did not in any 
 sense contradict the terms of the writing or vary the legal import, 
 but tended to show that the instrument was never delivered as a 
 present contract to be undconditionally binding, and held that 
 exclusion of parol evidence thereof was error. 
 
 Burke v. Dulaney, 153 U. S. 228. 
 
 But an allegation in an answer, by the maker of a promissor}"- 
 note, that the note was made with the distinct understanding 
 
FORM AND INTERPRETATION. 35 
 
 that the payee should take up the same at maturity, but not 
 stating that any such understanding was had with the plaintiff 
 bank discounting the same, or that the said agreement was 
 brought to the notice of the bank, does not constitute a defense 
 to an action brought by the bank against the maker. 
 
 Higgins, as Receiver, etc. v. O'Donnell, 68 Hun, 100. 
 
 Where a promissory note is given for a proper consideration, 
 an agreement that it shall not be collected, or that its payment 
 shall not be enforced, has been held entirely nugatory. 
 
 Mead v. National Bank of Pawling, 89 Hun, ro2. 
 
 Where a note and collateral security thereto were given by the 
 maker under a mistake as to the personalty of the party receiving 
 them, and were accepted by such person fraudulently, with knowl- 
 edge of the maker's mistake and of the rights of a third person 
 thereto, the note is void in its inception. 
 
 Bergmann v. Salmon, 79 Hun, 456, affirmed in 150 N. Y. 575. 
 
 Where renewal notes are given, although interest may be added 
 and the time extended, such notes are subject, in the hands of 
 the original holders, to the same defenses as the original debt. 
 
 Earle v. Robinson, 91 Hun, 363. 
 
 For a further discussion of the rules as to conditional delivery 
 and proof of parol agreements, affecting the enforcement of 
 unsealed contracts, see Chapin v. Dobson, 78 N. Y. 74 j East- 
 man v. Shaw, 65 N. Y. 522; Englethorn v. Reitlinger, 122 N. 
 Y. 76; Bradley v. Washington, etc. Packet Co., 13 Peters, 89; 
 Juilliard V. Chaffee, 92 N. Y. 529; Reynolds v. Robinson, no 
 N. Y. 654, and cases cited. 
 
 Construction where instrument is ambiguous. 
 
 § 36. Where the language of the instrument is 
 ambiguous, or there are omissions therein, the fol- 
 lowing rules of construction apply : 
 
 I. 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; 
 
36 THE NEGOTIABLE INSTRUMENTS LAW. 
 
 2. Where the instrument provides for the pay- 
 ment of interest, without specifying the date from 
 which interest is 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; 
 
 4. Where there is a conflict between the written 
 and printed provisions of the instrument, the writ- 
 ten provisions prevail; 
 
 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 ; 
 
 6. Where a signature is so placed upon the instru- 
 ment that it is not clear in what capacity the person 
 making the same intended to sign, he is to be 
 deemed an indorser; 
 
 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. 
 
 Subd. I . The first clause in this subdivision is taken from the 
 English Bills of Exchange Act, sec. 9, subd. 2. The rule stated 
 seems to be declaratory of the law. It is so laid down by 
 Daniel on Negotiable Instruments, sec. 86. 
 
 Saunderson V. Piper, 5 Bing. (N. C), 425. 
 
 Subd. 2. This is also taken from the English act, sec. 9, 
 subd. 3. 
 
 See notes under sec. 25, subd. i, ante. 
 
 Subd. 3. See sec. 25, subd. i, and notes. 
 
 Subd. 4. General provision as to all written contracts. 
 
 Subd. 5. This is supported by Daniel, sec. 131 and cases cited. 
 
FORM AND INTERPRETATION. 37 
 
 Subd. 6. Probably declaratory. 
 
 See sec. 114, post. 
 
 Subd. 7. This is taken from the English act, sec. 85, subd. 2, 
 and is supported by Munson v. Drakeley, 40 Conn. 552, 16 Am. 
 Rep. 74. 
 
 The rule is laid down by Daniel, sec. 94, citing Monson v. 
 Drakeley, et inter aL; Ely v. Clute, 10 Hun, 35 ; Partridge v. 
 Colby, 19 Barb. 248. 
 
 Liability of person signing in trade or assumed name. 
 
 § 37. No person is liable on the instrument whose 
 signature does not appear thereon, except as herein 
 otherwise expressly provided. But one who signs 
 in a trade or assumed name will be liable to the 
 same extent as if he had signed in his own name. 
 
 See notes to sec. 28, subds. 3 and 4, ante. 
 
 A note made payable to the ' ' National Publishing Company, ' ' 
 which was a name assumed by plaintiff in carrying on his business 
 and represented nothing else, was given for value. Held, 
 that defendant was estopped from alleging that the notes were 
 made payable to a fictitious payee. 
 
 Jones V. Home Furnishing Co., 9 App. Div. 103. 
 
 The above section is taken from the English Bills of 
 Exchange Act, sec. 23, subd. i. 
 
 Signature by agent ; authority ; how shown. 
 
 § 38. The signature of any party may be made by 
 a duly authorized 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. 
 Declaratory of the law. 
 
 Liability of person signing as agent, etc. 
 
 § 39. Where the instrument contains or a person 
 adds to his signature words indicating that he signs 
 
38 THE NEGOTIABLE INSTRUMENTS LAW. 
 
 for or on behalf of a principal, or in a representa- 
 tive capacity, he is not liable on the instrument if he 
 was duly authorized; but the mere addition of 
 words describing him as an agent, or as filling a 
 representative character, without disclosing his prin- 
 cipal, does not exempt him from personal liability. 
 
 This is, in substance; sec. 26, subd. i, of the English Bills of 
 Exchange Act. It undoubtedly is intended to state a well-known 
 principle of the law of agency, which is supported by a number 
 of cases, thus : 
 
 It is a well-known rule that persons dealing with negotiable 
 instruments are presumed to take them upon the credit of the 
 parties whose names appear upon them, and a person not a party 
 cannot ordinarily be charged with proof that the ostensible party 
 signed or indorsed as his agent. 
 
 Briggs V. Partridge, 64 N. Y. 357, 363. 
 
 And where a person added to a note the word ' ' agent, ' ' no 
 principal being named in the body of the instrument or indicated 
 by the signature, it was held that the person signing was per- 
 sonally liable. 
 
 Mfg. & Traders' Bank v. Love, 13 App. Div. 561, citing Briggs 
 V. Partridge, supra ; Cortland Wagon Co. v . Lynch, 82 Hun, 
 173; Casco Nat. Bank v. Clark, 139 N. Y. 307. 
 
 In the last cited case, the facts were that a promissory note, 
 given for the debt of a corporation, was written on a blank hav- 
 ing printed on its margin the name of the corporation, but there 
 was no reference to it in the body of the note. It read: " We 
 promise to pay. ' ' It was signed by the president of the corpora- 
 tion in his individual name, with " Prest. " written after it, and 
 in the same manner by the treasurer, with " Treas. " added. 
 The note was discounted by the plaintiff for the payee before 
 maturity. It was held in the case that the officers had obligated 
 themselves personally, and the rule is further laid down that in 
 the absence of competent evidence showing or charging knowl- 
 edge in the holder as to the character of an obligation, it must be 
 regarded as the agreement of its ostensible maker. 
 
 In Mott V. Hicks, i Con. 513, distinguished in C. N. Bank 
 v. Clark, the note read, " The president and directors promise 
 
FORM AND INTERPRETATION. 39 
 
 to pay," and was subscribed by tKe defendant, as president. 
 The court distinguishing there said that the language clearly 
 imported that no' personal engagement was entered into or 
 intended. 
 
 See to the same effect Bank of Genesee v. Patchin Bank, 19 
 N. Y. 312, where the plaintiff bank was advised at the time of 
 discounting the bill that a certain Stokes was cashier and the 
 bill was drawn to the order of John B. Stokes, cashier, and 
 indorsed in the same words. It was said in that case that the 
 same strictness is not required in the execution of commercial 
 paper as between banks, as between individuals. 
 
 Signature by procuration ; effect of. 
 
 § 40. A signature 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. 
 
 English Bills of Exchange Act, sec. 25. Declaratory of the 
 common law. 
 
 Attwood V. Munnings, 7 B. & C. 278; 4 Eng. Rul. Cas, 364; 
 Daniel, sec. 280; North River Bank v. Aymar, 3 Hill, 262. 
 
 Effect of indorsement by infant or corporation. 
 
 § 41. The indorsement or assignment of the 
 instrument by a corporation or by an infant passes 
 the property therein, notwithstanding that from 
 want of capacity the corporation or infant may 
 incur no liability thereon. 
 
 This section is taken from the English Bills of Exchange Act, 
 sec. 22, subd. 2. It is presumably declaratory of the law. The 
 defense of infancy being a personal one, and the defense of ultra 
 vires on the part of the corporation being intended for the 
 benefit of the ^tock-holders of the corporation, cannot be taken 
 advantage of by third p.arties. 
 
40 THE NEGOTIABLE INSTRUMENTS LAW. 
 
 As to transfer of negotiable instruments by infants, see Daniel, 
 sec. 682. 
 
 As to an ultra vires indorsement by a corporation, see Norton 
 on Bills & Notes, p. 212 et seq. 
 
 On the general subject as to how far corporations may issue 
 negotiable securities, and the rights of bona fide holders of such 
 securities, see note to North Hudson, etc.. Association v. 
 National Bank of Hudson (Wis.), 11 L. R. A. 845. 
 
 Forged signature ; effect of. 
 
 § 42. Where a signature is forged or made with- 
 out authority of the person whose signature it pur- 
 ports to be, it is wholly inoperative, and no right to 
 retain the instrument, or to give a discharge therefor, 
 or to enforce payment thereof against any party 
 thereto, can be acquired through or under such sig- 
 nature, unless the party against whom It is sought 
 to enforce such right is precluded from setting up 
 the forgery or want of authority. 
 
 See sec. 24 of the English Bills of Exchange Act. 
 
 The general rule that the forgery of a signature to a negotiable 
 instrument, or an intentional material alteration, nullifies the 
 instrument as against the party whose name is forged, is too 
 well known to require citations. 
 
 Meyer v. Huneke, 55 N. Y. 412; Booth v. Powers, 56 
 N. Y. 22. 
 
 The qualifications are : (first) where a party is estopped by the 
 implied warranties which attach to the act of issuing, accepting 
 or indorsing negotiable paper, as to which see art. 6, post, and 
 (second) ratification. 
 
 In New York, it has been held that one whose name is forged 
 may afterwards ratify and adopt the forged instrument, even by 
 £tn unwritten promise and without new consideration, and thereby 
 become bound. 
 
 Howard v. Duncan, 3 Lans. 1 74. 
 
 This rule has been followed in some ojher States, but, on the 
 
CONSIDERATION. 4I 
 
 Other hand, it has been bitterly criticised in some other juris- 
 dictions. 
 
 See discussion on this subject in Daniel, sec. 135 1 et seq. 
 
 See Workman v. Wright, 33 O. St. 405, 31 Am. Rep. 546, 
 with note, denying and criticising Howard v. Duncan. 
 
 ARTICLE III. 
 CONSIDERATION OF NEGOTIABLE INSTRUMENTS. 
 
 Section 50. Presumption of consideration. 
 
 51. What constitutes consideration. 
 
 52. Wliat cons.titutes holder for value. 
 
 53. When lien on instrument constitutes holder for value. 
 
 54. Effect of want of consideration. 
 
 55. Liability of accommodation endorser. 
 
 Presumption of consideration. 
 
 § 50. Every negotiable instrument is deemed 
 prima facie to have been issued for a valuable con- 
 sideration ; and every person whose signature appears 
 thereon to have become a party thereto for value. 
 
 The general rule has been that contracts under seal, or executed 
 pursuant to a statute, promissory notes and inland bills of 
 exchange, enjoy a privilege not conceded to other instruments 
 of being presumed to be founded upon a valuable consideration. 
 
 Carnwright v. Gray, 127 N. Y. 92; Moak's Van Santvoord's 
 Pleadings, 164; Daniel, Neg. Inst., sec. 161 et seq. 
 
 But it has been held that a special letter of credit, i. e., one 
 addressed to a particular person by name, is not negotiable and 
 it is essential to allege and prove that such instruments were 
 made for a consideration. 
 
 See Johannessen v. Monroe, 84 Hun, 594, and see notes to 
 sec. 25, subd. 2, ante. 
 
 Consideration, what constitutes 
 
 § 51. Value is any consideration sufficient to 
 
 support a simple contract. An antecedent or pre- 
 
42 THE NEGOTIABLE INSTRUMENTS LAW. 
 
 existing debt constitutes value; and is deemed such 
 whether the instrument is payable on demand or at 
 a future time. 
 
 " According to the very general concurrence of judicial 
 authority in this country, as well as elsewhere, it may be regarded 
 as settled in commercial jurisprudence, there being no statutory 
 regulations to the contrary, that where negotiable paper is received 
 in payment of an antecedent debt; or where it is transferred, by 
 indorsement, as collateral security for a debt created, or a pur- 
 chase made, at the time of transfer; or the transfer is to secure 
 a debt, not due, under an agreement express or to be clearly 
 implied from the circumstances, that the collection of the princi- 
 pal debt is to be postponed or delayed until the collateral matured; 
 or where time is agreed to be given and is actually given upon a 
 debt overdue, in consideration of the transfer of negotiable paper 
 as collateral security therefor; or where the transferred note takes 
 the place of other paper previously pledged as collateral security 
 for a debt, either at the time such debt was contracted or before 
 it became due; in each of these case the holder who takes the 
 transferred paper, before its maturity, and without notice, actual 
 or otherwise, of any defense thereto, is held to have received it 
 in due course of business, and in the sense of the commercial law, 
 becomes a holder for value, entitled to enforce payment, without 
 regard to any equity or defense which exists between prior parties 
 to such paper. 
 
 Upon these propositions there seems at this day to be no sub- 
 stantial conflict of authority. But there is such conflict where 
 the note is transferred as collateral security merely, without other 
 circumstances, for a debt previously created. ' ' 
 
 ' ' It is, undoubtedly, true that if we should, apply to this case 
 the principles announced in the highest court of the State of 
 New York, a different conclusion would have been reached from 
 that already announced. That learned court has held that the 
 holder of negotiable paper, transferred merely as collateral security 
 for an antecedent debt, nothing more, is not a holder for value, 
 within those rules of commercial law, which protect such paper 
 against the equities of prior parties. ' ' 
 
 Mr. Justice Harlan in Brooklyn City, etc. R. R. Co. v. Nat. 
 Bank, 102 U. S. 14. 
 
CONSIDERATION. 43 
 
 See supporting the above statement of Mr. Justice Harlan, as 
 to New York law, the opinion of Finch, J., in Mayer v. Heidel- 
 bach, 123 N. Y. 332, 339, 340. 
 
 The above section of the statute follows, in substance, the 
 English Bills of Exchange Act, sec. 27, subd. ib, with the 
 qualification that the English statute states that an antecedent 
 debt or liability is deemed sufficient consideration; Inasmuch as 
 the English rule is founded upon Currie v. Misa, L. R. 10 Ex. 
 153, which holds, in substance, as do the Federal courts, it 
 is to be inferred that the above statute extends the New York 
 rule to include instruments given merely as collateral security. 
 
 What constitutes holder for value. 
 
 § 52. 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. 
 
 This section is taken from the English Bills of Exchange 
 Act, sec. 27, subd. 2, and is founded upon Hunter v. Wilson, 4 
 Ex. 489. 
 
 See Daniel, sec. 174a. 
 
 When lien on instrument constitutes holder on value. 
 
 § 53. Where the holder has a lien on the instru- 
 ment, arising either from contract or by implication 
 of law, he is deemed a holder for value to the extent 
 of his lien. 
 
 This section is taken from the English Bills of Exchange 
 act, sec. 27, subd. 3, and is founded upon Collins v. Martin, i 
 Bos. & P. 648. As to accommodation notes given as security, 
 see Gordon V. Boppe, 55 N. Y. 665; C. N. Bank v. Bell, 125 
 N. Y. 38. 
 
 Effect of want of consideration. 
 
 § 54. Absence or failure of consideration is mat- 
 ter of defense as against any person not a holder in 
 due course ; and partial failure of consideration is a 
 
44 THE NEGOTIABLE INSTRUMENTS LAW. 
 
 defense pro tanto whether the failure is an ascer- 
 tained and Hquidated amount or otherwise. 
 
 At common law, a partial failure of consideration was available 
 as a defense pro tanto, only when it was a matter capable of 
 definite computation, and not mere unliquidated damages. 
 
 Story, Promissory Notes, sec. 187; Bellows v. Folsom, 2 Robt. 
 138; 2 Ency. of Law, 371, note. 
 
 Liability of accommodation indorser, 
 
 § 55. An accommodation 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. Such a person is liable on the instrument 
 to a holder for value, notwithstanding such holder 
 at the time of taking the instrument knew him to be 
 only an accommodation party. 
 
 This is taken from sec. 28, of the English Bills of Exchange 
 Act and is declaratory of the English common law. 
 
 Daniel, sec. 726. 
 
 It has been held in this State, that an accommodation indorser, 
 without consideration, is not liable to a transferee after maturity 
 where the transfer is made from the person for whose accommo- 
 dation it was indorsed, although full consideration was paid. 
 
 Chester V. Dorr, 41 N. Y. 279. 
 
 This is a departure from the English rule. 
 
 Charles v. Marsden, i Taunt. 224. 
 
 The above section seems to be in line with the English rule 
 which makes the paper good to the extent, at least, of the con- 
 sideration paid, in the hands of any holder for value. 
 
 Generally speaking, where an accommodation note has been 
 discounted and there is no unlawful diversion, the mere fact that 
 it is taken by the indorsee with knowledge that it is accommo- 
 dation paper, will not prevent a recovery thereon. 
 
 See Fitch v. McDowell, 80 Hun, 207, affirmed in 145 
 N. Y. 498, 
 
NEGOTIATION. 45 
 
 ARTICLE IV. 
 
 NEGOTIATION. 
 
 Section 60. What constitutes negotiation. 
 
 61. Indorsement ; how made. 
 
 62. Indorsement must be of entire instrument. 
 
 63. Kinds of indorsement. 
 
 64. Special indorsement ; indorsement in blank. 
 
 65. Blank indorsement ; how changed to special indorsement. 
 
 66. When indorsement restrictive. 
 
 67. Effect of restrictive indorsement ; rights of indorsement. 
 
 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. 
 
 77. Continuation of negotiable character. 
 
 78. Striking out indorsement. 
 
 79. Transfer without indorsement ; eifect of. 
 .80. When prior party may negotiate instrument. 
 
 What constitutes negotiation. 
 
 § 60. An instrument is negotiated when it is 
 transferred from one person to another in such man- 
 ner as to constitute the transferee the holder thereof. 
 If payable to bearer it is negotiated by delivery • if 
 payable to order it is negotiated by the indorsement 
 of the holder completed by delivery. 
 
 This is declaratory of the law. 
 
 The above section, and the succeeding sections in this article 
 are taken, with some few changes, from the "^'.nglish Bills of 
 Exchange Act, sees. 31 to 38. 
 
46 THE NEGOTIABLE INSTRUMENTS LAW. 
 
 Indorsement; how made. 
 
 § 61. The indorsement must be written on the 
 instrument itself or upon a paper attached thereto. 
 The signature of the indorser, without additional 
 words, is a sufficient indorsement. 
 
 An indorsement in pencil or by a mark is sufficient. A person 
 may become bound by any mark or designation he thinks proper 
 to adopt, provided it be used as a substitute for his name, and 
 he intend to bind himself. So held where the indorsement was 
 in lead pencil and in figures, thus: "i. 2. 8." no name 
 being written. 
 
 Brown v. Butchers and Drovers' Bank, 6 Hill, 443 ; Johns. 
 111. Cas. 114, 41 Am. Dec. 755, and cases cited. 
 
 That the indorsement need not be on the back of the instru- 
 ment, see Rex v. Bigg, i Strange, 18; Arnot v. Symonds, 85 
 Penn. St. 99. 
 
 Indorsement must be of entire instrument. 
 
 § 62. The indorsement must be an indorsement 
 of the entire instrument. An indorsement, which 
 purports to transfer to the indorsee a part only of 
 the amount payable, or which purports to transfer 
 the instrument to two or more indorsees severally, 
 does not operate as a negotiation of the instrument. 
 But where the instrument has been paid in part, it 
 may be indorsed as to the residue 
 
 This section is supported by Hawkins v. Cardy, i Ld. Rayn\. 
 360, and by Daniel on Neg. Inst., sec. 668. 
 
 It is said by Mt. Daniel that an indorsement of part of the 
 amount due would give the intended indorsee, a lien upon the 
 instrument. Ibid. Citing Byles on Bills (Sharswood's Edition), 
 391. 
 
NEGOTIATION, 47 
 
 Kinds of indorsement. 
 
 § 63. An indorsement may be either special or in 
 blank ; and it may also be either restrictive or quali- 
 fied, or conditional. 
 
 Special indorsement ; indorsement in blank. 
 
 § 64. A special indorsement specifies the person 
 to whom, or to whose order the instrument is to be 
 payable; and the indorsement of such indorsee is 
 necessary to the further negotiation of the instru- 
 ment. An indorsement in blank specifies no 
 indorsee, and an instrument so indorsed is payable 
 to bearer, and may be negotiated by delivery. 
 
 Blank indorsement ; how changed to special indorse- 
 ment. 
 
 § 65. The holder may convert a blank indorse- 
 ment into a special indorsement by writing over the 
 signature of the indorser in blank any contract con- 
 sistent with the character of the indorsement. 
 
 The preceding three sections are apparently declaratory of the 
 law. 
 
 See Daniel, sec. 691 to 697. 
 
 It is not competent for the holder under a blank indorsement 
 to fill it up so as to make it payable in part to one person and 
 in part to another. 
 
 See sec. 62, ante. 
 
 When indorsement restrictive. 
 
 § 66. An indorsement is restrictive, which either : 
 I . Prohibits the further negotiation of the instru- 
 ment; or 
 
48 THE NEGOTIABLE INSTRUMENTS LAW. 
 
 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. 
 
 But the mere absence of words implying power to 
 negotiate does not make an indorsement restrictive. 
 
 Restrictive indorsements fall naturally into two classes (i) 
 Where it is evident that the indorsee did not give a valuable con- 
 sideration for the instrument and that the instrument is held by 
 the 'ndorsee merely for the use or benefit of the indorser, who 
 has not parted with title as, for instance, a note is indorsed for 
 collection, or for deposit, or indorsed payable to the order of 
 one person only, and is hence not negotiable. 
 
 (2) Where there is an evident intent by the indorser to part 
 with the title to the property, importing a consideration paid by 
 the indorsee, but impressing the instrument with a trust as, for 
 instance, where an indorsement is made specifically for the benefit 
 of a third person. In such case the paper is negotiable, but 
 a subsequent indorsee takes it impressed with the trust. 
 
 The first of these classes is treated of in sudivisions i and 2, 
 post. The second of tlie two is treated of in subdivision 3. 
 
 Subds. I and 2. Instances of such indorsements are: " Pay 
 to P. or order only. ' ' 
 
 Power V. Finney, 4 Call (Va.) 411. 
 
 " Pay S. V. W. or order for account Merchants' National 
 Bank of Georgetown. ' ' 
 
 White V. Miners' National Bank, etc., 102 U. S. 658. 
 indorsements for collection. 
 
 An indorsement for collection is not a transfer of the title to 
 the indorsee, but merely constitutes him the agent of the indorser 
 to present the paper, demand and receive payment and remit 
 the proceeds. 
 
 Nat. Butchers and Drovers' Bank v. Hubbell, 117 N. Y. 384, 
 IS Am. St. Rep. 515. 
 
 The owner m^y still control such paper, unless paid, and may 
 mtercept the proceeds if in the hands of an intermediate agent. 
 
 Freemans' Nat. Bank v. Nat. Tube Works Co., 151 Mass. 
 413, 21 Am. St. Rep. 461. 
 
NEGOTIATION. 49 
 
 Indorsements for deposit. 
 
 It is the general tenor of the cases that an indorsement for 
 deposit constitutes a retention of title in the depositor, in the 
 absence of any agreement or practice to the contrary. 
 
 See Ditch v. Western Nat. Bank of Baltimore, 79 Md. 192, 
 23 L. R. A. 164, and note. 
 
 In that case, however, on an indorsement for deposit, a check 
 was received and credited as cash to the account of the indorser 
 by a bank. Thereafter, by an indorsement in the same form, 
 the check is transferred to another bank which, in good faith, 
 pays the amount to the former bank, and credits it for cash. 
 The first bank having made an assignment for creditors, it is 
 held that the title to the check is in the bank which holds it and 
 has paid for it, and testimony of the first indorsee that he 
 regarded all the checks deposited by him as having been deposited 
 for collection, is held incompetent as a conclusion. 
 
 Plaintiffs were the owners of certain sight drafts drawn on the 
 defendants. P., who was the confidential man in plaintiff's 
 employment, having authority to receive payments for them in 
 the course of their business, indorsed the drafts " for deposit in 
 the Broadway National Bank." and entrusted them to a boy, 
 who had been directed to obey the orders of P., and who 
 took the drafts to the office of defendants, received the payment 
 of them in money, returned and paid over the money to P. 
 Held, that the payment to P. was a good payment to the plain- 
 tiffs, and that their action for the amount of the check could not 
 be sustained, and that although the payment to the boy was 
 irregular in the first instance, yet as he had turned the money 
 over to P., P. 's receipt was a good defense as against plaintiffs. 
 The court says: " Had the boy absconded with the money it 
 would have been more difficult to sustain the defense. ' ' 
 
 Johnson v. Donnell, 90 N. Y. i . 
 
 In all these cases the rule is that, in the absence of any other 
 circumstances, it is very clear that a restrictive indorsement to 
 the use of the indorser, or for collection, or for deposit, retains 
 the title in the indorser until the money is paid. 
 
 Subd. 3. A very good instance of this rule is where the defend- 
 ant's testator drew a draft on the treasurer of a corporation, 
 payable to himself, and indorsed it " Pay to the order of Mrs. 
 Mary Hook, for the benefit of her son Charhe." The son 
 Charlie was the illegtimate son of the drawer. It was held that 
 
50 THE NEGOTIABLE INSTRUMENTS LAW. 
 
 an. indorsement to one person for the use or benefit of another 
 affords no evidence of lack of consideration; that such considera- 
 tion is presumed and that the title passed from the indorser to the 
 indorsee, subject to the trust, but that there was nothing retained 
 to the drawer or indorser. 
 
 See Hook v. Pratt, 78 N. Y. 371, collecting cases. 
 
 The last paragraph of the third subdivision is founded upon 
 the rule laid down in Edie v. East India Co., 2 Burr, 1223, 4 
 Eng. Rul. Cas. 343, where it was held that a bill indorsed to A., 
 without adding the words ' ' or order, ' ' continues negotiable, and 
 the general rule is further laid down in that case, that an indorse- 
 ment, " Pay A. for my use," or similar indorsements, take away 
 the negotiable quality of the paper. 
 
 Effect of restricting indorsement ; rights of indorsee. 
 
 § 67. A restrictive indorsement confers upon the 
 indorsee the right: 
 
 1. To receive payment of the instrument; 
 
 2. To bring any action thereon that the indorser 
 could bring; 
 
 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. 
 
 See notes to preceding section and, as supporting this section, 
 see, also, Freeman's Nat. Bank v. Nat. Tube Works Co., 151 
 Mass. 413, 21 Am. St. Rep. 46r; Hook v. Pratt, 78 N. Y. 371, 
 and note to report of Nat. Butchers', etc. Bank v. Hubbell, 15 
 Am St. Rep., at page 524. 
 
 Qualiiied indorsement. 
 
 § 68. Qualified indorsement constitutes the in- 
 dorser a mere assignor of the title to the instrument. 
 It may be made by adding to the indorser's signa- 
 ture the words "without recourse" or any words of 
 
NEGOTIATION. 5 1 
 
 similar import. Such an indorsement does not 
 impair the negotiable character of the instrument. 
 
 This is declaratory ol the law. 
 
 Daniel, sec. 700. 
 
 The liability of an indorser without recourse is similar to one 
 who transfers by delivery only. 
 
 See sec 115, j>osf. 
 
 An indorsement without recourse is usually accomplished by 
 the words, " without recourse," " sans recourse," " at the 
 indorsee's own risk," etc., etc. 
 
 An indorsement which assigns all the right and title of the 
 indorser, with the words, " to be enjoyed in the same manner as 
 may have been by me, " is an indorsement without recourse. 
 
 Hailey V. Falconer, 32 Ala. 536. 
 
 An order indorsed to A. at his own risk makes an indorsement 
 without recourse. 
 
 Rice V. Stearns, 3 Mass. 225. 
 
 Where the iirm of B. & H. discontinued, and during the 
 adjustment of its affairs was succeeded by a new firm of the same 
 name, wherein the defendant was a partner, and he indorsed a 
 note with the words, ' ' Old firm in liquidation, ' ' it was held not 
 an indorsement without recourse. 
 
 Fassin v. Hubbard, 55 N. Y. 465. 
 
 It is not admissible to show that an indorsement in blank was 
 intended to be without recourse. 
 
 Martin v. Cole, 104 U. S. 30. 
 
 Conditional indorsement. 
 
 § 69. Where an indorsement is conditional, a 
 party required to pay the instrument may disre- 
 gard the condition, and make payment to the indor 
 see or his transferee, whether the condition has been 
 fulfilled or not. But any person to whom an instru- 
 ment so indorsed is negotiated, will hold the same, 
 or the proceeds thereof, subject to the rights of the 
 person indorsing conditionally. 
 
52 THE NEGOTIABLE INSTRUMENTS LAW. 
 
 As to the right to show by parol evidence, as between imme- 
 diate parties, that an instrument was delivered conditionally, see 
 notes to sec. 35, ante. 
 
 A good instance of a conditional indorsement is to be found in 
 Robertson v. Kensington, 4 Taunt. 30. In that case the indorse- 
 ment was upon a draft to the following effect : " Pay the within 
 sum to Messrs. C. & R. or order upon my name appearing in the 
 Gazette as ensign in any regiment of the line, within two months 
 from date. ' ' It was held in that case that where an indorse- 
 ment was conditional, a payment to the subsequent indorsees 
 would be at the peril of the person paying, in case the condition 
 was not fulfilled. In other words, that the conditional indorse- 
 ment did not transfer the title absolutely. The above section, 
 therefore, changes the law in this respect. It is taken from the 
 English Bills of Exchange Act, sec. 33. Mr. Campbell, in his 
 annotated edition of this act, in 4 Eng. Rul. Cas. 146, states 
 that the law is altered in this respect. 
 
 Indorsement of instrument payable to bearer. 
 
 § 70. Where an instrument, payable to bearer, is 
 indorsed specially, it may nevertheless be further 
 negotiated by delivery; but the person indorsing 
 specially is liable as indorser to only such holders as 
 make title through his indorsement. 
 
 It must be remembered in this connection that an indorsement 
 in blank is equivalent to making the instrument payable to bearer. 
 
 Sec. 66, ante. 
 
 The section states a well-known rule of law. 
 
 Daniel, sees. 668, 696; Norton on B. & N., p. 116, citing 
 Watervliet Bank v. White, i Denio, 608. See, also, Johnson v. 
 Mitchell, 50 Tex. 212, reported in 32 Am. Rep. 602, reviewing 
 the authorities. 
 
 Indorsement where payable to two or more persons. 
 
 § 71. Where an instrument is payable to the 
 order of two or more payees or indorsees who are 
 
NEGOTIATION. 53 
 
 not partners, all must indorse, unless the one indors- 
 ing has authority to indorse for the others. 
 
 This is also a well known rule of law. 
 
 See Daniel, sec. 701a. 
 
 Mr. Daniel states that while an action cannot ordinarily be 
 maintained on the indorsement of one of the joint parties, not 
 partners, there is an equitable interest passing to his indorsee or 
 assignee. 
 
 Effect of instrument drawn or indorsed to a person as 
 cashier. 
 
 § 72. Where an instrument is drawn or indorsed 
 to a person as " cashier " or other fiscal officer of a 
 bank or corporation, it is deemed prtTna 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, or the 
 indorsement of the officer. 
 
 On this subject, see Watervliet Bank v. White, i Denio, 608; 
 Bank of New York v. Bank of Ohio, 29 N. Y. 619; First Nat. 
 Bank v. Hall, 44 N. Y. 395 ; Bank of Genesee v. Patchin Bank, 
 19 N. Y. 312. These cases hold generally that an indorsement 
 to one as cashier is equivalent to an indorsement to the undis- 
 closed bank, which is an exception to the general rule as to 
 indorsements by agent. 
 
 See sec. 39, ante. 
 
 Indorsement where name is misspelled, et cetera. 
 
 § 73. 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 signature. 
 
 This is a matter of common practice. It is taken from sec. 
 31, subd. 4, of the English Bills of Exchange Act, and is, pre- 
 sumably, declaratory of the law. 
 
54 THE NEGOTIABLE INSTRUMENTS LAW. 
 
 Indorsement in representative capacity. 
 
 § 74. Where any person is under obligation to 
 indorse in a representative capacity, he may indorse 
 in such terms as to negative personal liability. 
 
 Such an indorsement is usually "A. B. as agent for C. D.," 
 or " C. D. by A. B., agent," or "per procuration, C. D. 
 (principal), A. B. " (agent). 
 
 See sec. 39, ante. 
 
 As to admissibility of parol evidence, where the terms of 
 the instrument are equivalent and uncertain to show, as between 
 the original parties, who was intended to be charged, see Schmit- 
 tler V. Simon, 114 N. Y. 176. 
 
 Time of indorsement ; presumption. 
 
 § 75. Except where an indorsement bears date 
 after the maturity of the instrument, every negotia- 
 tion is deemed prima facie to have been effected 
 before the instrument was overdue. 
 
 Place of indorsement ; presumption. 
 
 § 76. Except where the contrary appears, every 
 indorsement is presumed prima facie to have been 
 made at the place where the instrument is dated. 
 
 These sections seem to be declaratory of the law. 
 
 See Daniel, sec. 728, citing, among others. New Orleans, etc. 
 Co. V. Montgomery, 95 U. S. 8; Good v. Martin, 95 U. S. 94; 
 Hendricks V. Judah, i Johns. 319; Pinkerton v. Bailey, 8 Wend. 
 600. See sec. ii^, post, see, also, Barrick v. Austin, 21 Barb. 
 241. 
 
 Continuation of negotiable character. 
 
 \']T. An instrument negotiable in its origin con- 
 tinues to be negotiable until it has been restrictively 
 indorsed or discharged by payment or otherwise. 
 
ifEGOTIATION. 55 
 
 This section states a well-known principle of law, to wit, that 
 a bill or note does not lose its negotiable character even by being 
 dishonored. Though, of course, the liability of one who takes it 
 after maturity may be greatly increased, as to which see notes 
 to sec. 97, post. 
 
 If originally negotiable, a bill or note may pass from hand to 
 hand until paid. 
 
 See Leavitt v. Putnam, 3 N. Y. 494. 
 
 The above section is taken directly from the English Bills of 
 Exchange Act, sec. 36 (i). This section is said by Mr. Camp- 
 bell to be founded upon Callow v. Lawrence, 3 M. & S. 95. 
 In that case it was held that the drawer of a bill, payable to 
 his own order and indorsed by him to another, could, notwith- 
 standing he had paid the bill to the indorsee, negotiate the bill 
 afresh, and that the transferee could sue the acceptor. 
 
 Striking out indorsement. 
 
 § 78. The holder may at any time strike out any 
 indorsement which is not necessary to his title. 
 The indorser whose indorsement is struck out, and 
 all indorsers subsequent to him, are thereby relieved 
 from liability on the instrument. 
 
 This section seems to be declaratory of the law. Where there 
 is a special indorsement, the holder cannot strike it out and insert 
 his own name unless there is another special indorsement to him, 
 or an indorsement in blank, and i£ a special indorsee strike 
 out his name in the special indorsement there can be no recovery 
 against special indorser as it is a material alteration of his 
 contract. The usual way of stating the rule is to state that the 
 indorsement may be stricken out, except where there is only a 
 special indorsement, which practically amounts to the same thing. 
 
 See Daniel on Neg. Inst., sec. 694a; Mitchell v. Fuller, 
 15 Pa. St. 268, Johns. 111. Cas. 130. 
 
 Transfer without indorsement ; effect of. 
 
 I 79. Where the holder of an instrument payable 
 to his order transfers it for value without indorsing 
 
56 THE NEGOTIABLE INSTRUMENTS LAW. 
 
 it, the transfer vests in the transferee such title as 
 the transferer had therein, and the transferee acquires, 
 in addition, the right to have the indorsement of the 
 transferer. 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 
 indorsement is actually made. 
 
 This entire section, with the exception of the last sentence, is 
 taken from the English Bills and Notes Act, sec. 31, subd. 4. 
 
 The first part of the rule is taken from the case of Whistler v. 
 Forster, 32 L. J. C. P. 161, 4 Eng. Rul. Cas. 332. 
 
 The last sentence is probably intended to clear up a doubt. 
 
 In Baker v. Arnold, 3 Caines, 279, it was said that an indorse- 
 ment might be regarded, when in support of a just debt, as relat- 
 ing back to the time of the'actual delivery of the instrument. 
 Mr. Daniel, in his work on Negotiable Instruments, criticises this 
 decision very strongly. 
 
 Daniel, sec. 144, 745. 
 
 As in accordance with the statement above, see Lancaster Nat. 
 Bank v. Taylor, 100 Mass. 18, i Am. Rep. 71; Haskell v. 
 Mitchell, S3 Me. 468, 89 Am. Dec. 711 
 
 When said party may negotiate instrument. 
 
 § 80. 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 per- 
 sonally liable. 
 
 This is taken from the English Bills of Exchange Act, sec. 37, 
 and is said by Mr. Campbell, 4 Eng. Rul. Cas. 148, to be 
 founded upon Attenborough v. McKenzie, 25 L. J. Ex. 244. 
 
RIGHTS OF HOLDERS. 57 
 
 ARTICLE V. 
 RIGHTS OF HOLDERS. 
 
 Section go. Right of holder to sue ; payment. 
 
 91. What constitutes a holder in due course. 
 
 92. When person not deemed holder in due course. 
 
 93. Notice before full amount paid. 
 
 94. When title defective. 
 
 95. What constitutes notice of defect, 
 
 96. Rights of holder in due course. 
 
 97. When subject to original defenses. 
 
 98. Who deemed holder in due course. 
 
 Right of holder to sue ; payment. 
 
 § 90. The holder of a negotiable instrument may 
 sue thereon in his own name ; and payment to him 
 in due course discharges the instrument. 
 
 Mr. Justice Blackburn, in Crouch v. Credit Foncier, L. R. 8 
 Q. B. 374, lays down the rule as follows: " The person who 
 by a genuine indorsement, or where it is payable to bearer, by a 
 delivery, becomes holder, may sue in his own name on the con- 
 tract, and if he is a bona fide holder for value, he has a good 
 title, notwithstanding any defect of title in the party (whether 
 indorser or deliverer) from whom he took it. ' ' 
 
 See Code Civ. Proc, sec. 449. 
 
 What constitutes a liolder in due course, 
 
 § 91. A holder in due course is a holder who has 
 taken the instrument under the following conditions: 
 
 1 . That it is complete and regular upon its face ; 
 
 2. That he became the holder of it before it was 
 overdue, and without notice that it had been pre- 
 viously dishonored, if such was the fact ; 
 
 3. That he took it in good faith and for value ; 
 
 4. That at the time it was negotiated to him he 
 
58 THE NEGOTIABLE INSTRUMENTS LAW. 
 
 had no notice of any infirmity in the instrument or 
 defect in the title of the person negotiating it. 
 
 This section is declaratory of the law. It is taken from the 
 English Bills of Exchange Act, sec. 29. 
 
 Subd. I . A party purchasing commercial paper which remains, 
 in some essential particular, incomplete and imperfect, does not 
 become a bona fide holder; thus where a blank was left for the 
 signature of the president, in paper issued by a corporation, but 
 the paper was negotiated unsigned by such president, it was held 
 that the party taking it was not a bona fide holder. 
 
 Davis Sewing Machine Co. v. Best, 105 N. Y. 59. 
 
 Subd. 2. This is an elementary principle of commercial law. 
 For exhaustive note on this subject, see Kernohan v. Durham, 
 48 Ohio St. I, as reported in 12 L. R. A. 4r. 
 
 Subd. 3. It is not necessary to the validity of the note after it 
 has once had its legal inception, that the holder should pay full 
 value. But if the note had no legal inception at the time value 
 is paid for it will come within the prohibition of the usury laws 
 if it is purchased at a greater discount than the legal rate. 
 
 Hall V. Wilson, 16 Barb. 548; Canajoharie Nat. Bank v. 
 Diefendorf, 123 N. Y. 191, reported with notes in 10 L. R. A. 
 676. 
 
 Subd. 4. Canajoharie Nat. Bank v. Diefendorf, supra. 
 Usually in definitions of bona fide holder, there is added the 
 qualification that he must take the paper in the usual course of 
 business. 
 
 Canajoharie Nat. Bank v. Diefendorf, supra. 
 
 In that case the rule is laid down that gross carelessness alone 
 will not defeat title in a purchaser for value, but it does constitute 
 some evidence of bad faith. In that case, one H. negotiated 
 two promissory notes of J 1,000 each, made by defendant, who 
 was a farmer well known to the plaintiff's cashier discounting the 
 notes, and who had never been engaged in any business requiring 
 the discounting of negotiable paper to any extent. H. was 
 entirely unknown to the cashier. It was held that it could not 
 be said, as a matter of law, that the notes in suit were acquired in 
 good faith and in the usual course of business, and so that a refusal 
 to direct a verdict in plaintiff's favor was not error. The notes 
 were also negotiated at a much greater rate of discount than 
 
RIGHTS OF HOLDERS. 59 
 
 allowed by the usury law, but the plaintiff being a national bank, 
 it was held that the notes were not rendered entirely invalid, 
 but that the rate of discount could be taken into account in 
 determining the question of good faith. 
 
 When person not deemed holder in due course. 
 
 § 92. 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. 
 
 This is declaratory of the law. The Court of Appeals has 
 said that an action may be maintained against the maker of a 
 demand note without any demand, because it is due. The suit 
 itself is a demand. 
 
 Wheeler v. Warner, 47 N. Y. 520. 
 
 And the statute of limitations runs from the date of such note. 
 Ibid. 
 
 Where a note payable on demand with interest was transferred 
 three months after date, it was held so far overdue as to admit 
 defense of part payment. 
 
 Herrick v. Woolverton, 41 N. Y. 581. But see Wethey v. 
 Andrews, 3 Hill, 582, and cases collected in Daniel, sec. 610; 
 also Merritt v. Todd, 23 N. Y. 28. 
 
 While, as against the maker, a suit brought is a sufficient 
 demand, it is presumably necessary to make a separate demand 
 to charge the indorser. 
 
 Pardee v. Fish, 60 N. Y. 265. 
 
 Notice before full amount paid. 
 
 § 93. 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 amount 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. 
 
6o THE NEGOTIABLE INSTRUMENTS LAW. 
 
 As to protection of holder pro tanto under this rule, which is 
 declaratory of the law, see Daniel, sec. 798a. 
 Weaver v. Barden, 49 N. Y. 286. 
 
 When title defective. 
 
 § 94. The title of a person who negotiates an 
 instrument is defective within the meaning of this 
 act when he obtained the instrument, or any signa- 
 ture thereto, by fraud, duress, or force and fear, or 
 other unlawful means, or for an illegal consideration, 
 or when he negotiates it in breach of faith, or under 
 such circumstances as amounts to a fraud. 
 
 The first part of this section, relating to fraud, duress, etc., is 
 a rule applying to all contracts. The whole section is taken 
 from the English act, sec. 29, subd. 2, under which is cited by 
 Mr. Campbell, Jones v. Gordon, 2 App. Cas. 616, 4 Eng. Rul. 
 Cas. 416. 
 
 The latter part of such section would undoubtedly cover such 
 cases as where accommodation paper is wrongfully diverted and 
 the holder had notice of such fact. 
 
 See Small v. Smith, i Denio, 583. 
 
 Proof of diversion of negotiable paper from the purpose for 
 which it was delivered by the maker, casts upon the holder the 
 burden of showing that he is, or has succeeded to the rights of, 
 a bona fide holder. 
 
 Farmers', etc. Bank v. Noxon, 45 N. Y. 762. 
 
 It must be regarded as a settled rule that when a maker of 
 negotiable paper shows that it has been obtained from him by 
 fraud or duress, a subsequent transferee must show that he is a 
 bona fide purchaser. 
 
 See Grant v. Walsh, 145 N. Y. 502, citing cases, and see next 
 section. 
 
 What constitutes notice of defect. 
 
 § 95. To constitute notice of an infirmity in the 
 instrument or defect in the title of the person nego- 
 tiating the same, the person to whom it is negotiated 
 
RIGHTS OF HOLDERS. 6l 
 
 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. 
 
 There is no doubt that this states the rule as it at present 
 exists. 
 
 Jones V. Gordon, 2 App. Cas. 616, 4 Eng. Rul. Cas. 416. 
 
 Mere suspicious circumstances are not sufficient to put a party 
 upon inquiry, unless the circumstances are such as to so strongly 
 intimate a defect in the title that a deduction of bad faith may 
 fairly be made. It must be something more than merely gross 
 negligence. 
 
 See notes to sec. 91, ante, subd. i, and Canjoharie Nat. Bank 
 V. Diefendorf, 123 N. Y. 191, there cited. 
 
 Rights of holder in due course. 
 
 § 96. A holder in due course holds the instrument 
 . free from any defect of title of prior parties and free 
 from defenses available to prior parties among them- 
 selves, and may enforce payment of the instrument 
 for the full amount thereof against all parties liable 
 thereon. 
 
 See notes to preceding sections and, particularly, section 90, 
 ante. 
 
 Quosre. Presumably this section is not intended to abrogate 
 the rule heretofore obtaining in this State that an instrument 
 tainted with usury or contrary to some express statutory provi- 
 sion, as where given for a gaming debt, is void as against the 
 maker, even in the hands of an innocent holder. 
 
 See Powell v. Waters, 8 Cow. 669; Wilkie v. Roosevelt, 3 
 Johns. Cas. 206; Oneida Bank v. Ontario Bank, 21 N. Y. 495. 
 
 When subject to original defenses. 
 
 I 97. In the hands of any holder other than a 
 holder in due course, a negotiable instrument is 
 
62 THE NEGOTIABLE INSTRUMENTS LAW. 
 
 subject to the same defenses as if it were non- 
 negotiable. But a holder who derives his title 
 through a holder in due course, and who is not him- 
 self a party to any fraud or illegality affecting the 
 instrument, has all the rights of such former holder 
 in respect of all parties prior to the latter. 
 
 This rule will be found discussed in Amory v. Meryweather, 2 
 B. & C. 573, 4 Eng. Rul. Cas. 371, /« re Overend, Gumey & 
 Co., L. R. 6 Eq. 344, 4 Eng. Rul. Cas. 375. 
 
 The English rule is that the same right of set off against the 
 transferer of past due negotiable instruments is not available. 
 But this is not the rule in New York. 
 
 See Miner v. Hoyt, 4 Hill, 193; Code Civ. Proc, sec. 502, 
 subd. 2. 
 
 As to a holder deriving his title from a holder in due course, 
 having all the rights of such former holder, see Cheever v. Pitts- 
 burg, etc. R. R. Co., 150 N. Y. 59. 
 
 Who deemed holder in due course. 
 
 § 98. Every holder is d&e.n\QA. prima facie to be a 
 holder in due course ; 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. 
 
 This section is declaratory of the law. 
 See Daniel, sec. 810. 
 
LIABILITIES OF PARTIES, 6| 
 
 ARTICLE VI. 
 LIABILITIES OF PARTIES. 
 
 Section no. Liability of maker. 
 
 111. Liability of drawer. 
 
 112. Liability of acceptor. 
 
 113 When person deemed indorser. 
 
 114. Liability of irregular indorser. 
 
 115. Warranty; where negotiation by delivery, at cetera 
 
 116. Liability of general indorsers. 
 
 117. Liability of indorser where paper negotiable by delivery. 
 
 118. Order in which indorsers are liable. 
 
 119. Liability of agent or broker. 
 
 Liability of maker. 
 
 §110. The maker of a negotiable instrument by 
 
 making it engages that he will pay it according to 
 
 its tenor ; and admits the existence of the payee and 
 
 his then capacity to indorse. 
 
 This section is declaratory of the law. 
 Daniel, sec. 93. 
 
 Liability of drawer. 
 
 §111. The drawer by drawing the instrument 
 admits the existence of the payee and his then 
 capacity to indorse ; and engages that on due pre- 
 sentment the instrument will be accepted and paid, 
 or both, according to its tenor, and that if it be dis- 
 honored, and the necessary proceedings on dishonor 
 be duly taken, he will pay the amount thereof to the 
 holder, or to any subsequent 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. 
 
64 THE NEGOTIABLE INSTRUMENTS LAW. 
 
 This section is taken from the English Bills of Exchange 
 Act, except that the EngUsh act states that the drawer engages 
 to pay the bill on due presentment and is precluded from deny- 
 ing to a holder in due course the existence of the payee and his 
 then capacity to indorse. It also omits the provision for the 
 insertion of a stipulation negativing liability. 
 
 The liability of a drawer is in most respects equivalent to the 
 liability of a general indorser. Presumably, the provision for the 
 express stipulation negativing, etc., the liability of the drawer is 
 intended to continue the analogy and give the drawer the privi- 
 lege of the indorser sans recourse. 
 
 Liability of acceptor. 
 
 § 112. The acceptor by accepting the instrument 
 engages that he will pay it according to the tenor 
 of his acceptance ; and admits : 
 
 1. The existence of the drawer, the genuineness 
 of his signature, and his capacity and authority to 
 draw the instrument ; and 
 
 2. The existence of the payee and his then capac- 
 ity to indorse. 
 
 It has heretofore been held that the acceptor is only held to 
 a knowledge of the signature of the drawer. He is not held for 
 a want of genuineness of any part of the instrument, or any name 
 appearing thereon, or of the title of the holder. There also goes 
 with the acceptance of the bill, the implied guaranty that the 
 acceptor has funds of the drawer in his possession, and probably 
 the acceptor also admits the drawer's capacity to draw. This is 
 the rule as heretofore laid down in this State. 
 
 Holt V. Ross, 54 N. Y. 472; White v. Continental Nat. Bank, 
 64 N. Y. 316. 
 
 Mr. Daniel holds, sec. 536, that he also admits the existence 
 of the payee and his then capacity to indorse, as set forth in 
 subd. 2. 
 
 Daniel, sec. 93. 536. 
 
LIABILITIES OF PARTIES. 65 
 
 When person deemed indorser. 
 
 § 113. 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. 
 
 See sec. 36, subd. 6, ante. 
 
 Liability of irregular indorser. 
 
 § 114. Where a person, not otherwise a party to 
 an instrument, places thereon his signature in blank 
 before delivery, he is liable as indorser in accord- 
 ance 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 sub- 
 sequent parties. 
 
 2. If the instrument is payable to the order of the 
 maker or drawer, or is payable to bearer, he is liable 
 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 settles a point which has been long disputed and 
 discussed in the United States. The rule heretofore laid down 
 in this State has been to the following effect : The presumption 
 is, that a person making such an irregular indorsement intended 
 to become liable as second indorser, and that on the face of the 
 paper, without explanation, he is to be regarded as second 
 indorser, and not liable to the payee, who is supposed to be the 
 first indorser. But it is competent to rebut this presumption by 
 parol proof that the indorsement was made to give the maker 
 credit with the payee. 
 
 Coulter V. Richmond, 59 N. Y. 478. 
 
 5 
 
66 THE NEGOTIABLE INSTRUMENTS LAW. 
 
 He has been held, in some other States, to be, presumptively, 
 a guarantor or a joint maker. 
 
 A discussion of the various rules in the different States will be 
 found in the American note to MacDonald v. Whitfield, 4 Eng. 
 Rul. Cas., pages 548 to 551. 
 
 Mr. Daniel thinks that such an indorser should be regarded as 
 a first indorser. 
 
 Daniel, sec. 714. 
 
 There is no doubt as to the rule that as between immediate 
 parties parol evidence is admissible to show the capacity in 
 which he signed. 
 
 See sec. 118, post. 
 
 Warranty where negotiation by delivery, et cetera. 
 
 § 115. Every person negotiating an instrument 
 by delivery or by a qualified indorsement, warrants : 
 
 1. That the instrument is genuine and in all 
 respects what it purports to be ; 
 
 2. That he has a good title to it ; 
 
 3. That all prior parties had capacity to contract ; 
 
 4. That he has no knowledge of any fact which 
 would impair the validity of the instrument or ren- 
 der it valueless. 
 
 But when the negotiation is by delivery only, the 
 warranty extends in favor of no holder other than 
 the immediate transferee. The provisions of sub- 
 division three of this section do not apply to persons 
 negotiating public or corporate securities, other than 
 bills and notes. 
 
 It will be remembered that an instrument which is negotiable 
 by delivery, is one which is either payable to bearer or has been 
 indorsed in blank. 
 
 Subd. I. See Littauer v. Goldman, 72 N. Y. 506; Delaware 
 Bank V. Jarvis, 20 N. Y. 226; Fake v. Smith, 7 Abbt. N. S. 106. 
 
LIABILITIES OF PARTIES. 6"] 
 
 But where a holder of a promissory note, which has been 
 tainted with usury, transfers the same for a valuable considera- 
 tion, without indorsement and without misrepresentation as to 
 legality, in the absence of knowledge on his part, at the time of 
 the transfer, of the defect, no warranty against it will be implied, 
 and an action cannot be sustained against him for loss sustained 
 by the purchaser by reason of the defect; a scienter is essential 
 to establish an implied warranty as to the validity of the note. 
 
 Littauer v. Goldman, supra, reversing 9 Hun, 231. 
 
 In this case it is said that the only two cases which come within 
 the doctrine of an implied warranty are a warranty of title and 
 that the instrument is genuine and not forged. 
 
 See also on this subject, Webb v. O'Dell, 49 N. Y. 583. 
 
 Subd. 2. See Murray v. Judah, 6 Cow. 483. 
 
 Subd. 3. See Frank v. Lanier, 91 N. Y. 112; Bell v. Dagg, 
 60 N. Y. 528. 
 
 Subd. 4. See Brown v. McNamara, 20 N. Y. 287. 
 
 The provision as to persons negotiating public or corporate 
 securities is, perhaps, declaratory of the law, but seems to be new. 
 
 Liability of general indorser. 
 
 § II 6. Every indorser who indorses without qual- 
 ification, warrants to all subsequent holders in due 
 course : 
 
 1. The matter and things mentioned in sub- 
 divisions one, two and three of the next preceding 
 section; and, 
 
 2. That the instrument is at the time of his 
 indorsement valid and subsisting. 
 
 And, in addition, he engages that on due present- 
 ment, it shall be accepted or paid, or both, as the 
 case may be, according to its tenor, and that if it be 
 dishonored, and the necessary proceedings on dis- 
 honor be duly taken, he will pay the amount thereof 
 
68 THE NEGOTIABLE INSTRUMENTS LAW. 
 
 to the holder, or to any subsequent indorser who 
 
 may be compelled to pay it. 
 
 This section, is declaratory of the law. 
 See Daniel, sec. 66q et seq. 
 
 Liability of indorser where paper negotiable by delivery 
 
 § 1 7. Where a person places his indorsement on 
 an instrument negotiable by delivery he incurs all 
 the liabilities of an indorser. 
 
 This seems also to be declaratory of the law. 
 Daniel, sec. 707a. 
 
 Order in which indorsers are liable. 
 
 § 118. As respects one another, indorsers are 
 liable prima facie in the order in which they indorse ; 
 but evidence is admissible to show that as between 
 or among themselves they have agreed otherwise. 
 Joint payees or joint indorsees who indorse are 
 deemed to indorse jointly and severally. 
 
 The rule as to the order of liability, and as to parol evidence 
 to show between immediate parties the real order of liability, is 
 the common-law rule. 
 
 By statute, in most of the States, an action can be begun 
 against all the prior parties at the same time. 
 
 See Code Civil Procedure, sec. 454. 
 
 The rule as to joint indorsers seems to be new and to settle 
 several disputed points. 
 
 See Daniel,, sec. 94 et seq. 
 
 Liability df agent or broker. 
 
 § 1 1 9. Where a broker or other agent negotiates 
 an instrument without indorsement, he incurs all the 
 liabilities prescribed by sf'ction sixty-five of this act, 
 
PRESENTMENT FOR PAYMENT. 69 
 
 unless he discloses the name of his principal, and 
 the fact that he is acting only as agent. 
 
 This is the logical conclusion from the law as stated in section 
 39, and is presumably declaratory of the general principle of 
 agency. 
 
 ARTICLE VII. 
 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. Instrument 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. 
 
 143. When instrument dishonored by non-payment. 
 
 144. Liability of person secondarily liable, 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. 
 
 Effect of want of demand on principal debtor, 
 
 § 130. Presentment for payment is not necessary 
 in order to charge the person primarily on the 
 instrument; but if the instrument is, by its terms, 
 payable at a special place, and he is able and willing 
 
 *This article is taken largely from the English act and is generally 
 declaratory of the law. 
 
JO THE NEGOTIABLE INSTRUMENTS LAW. 
 
 to pay it there at maturity, such ability and willing- 
 ness are equivalent to a tender of payment upon his 
 part. But except as herein otherwise provided, pre- 
 sentment for payment is necessary in order to charge 
 the drawer and indorsers. 
 
 No demand for the payment of a note is necessary to hold 
 the maker. 
 
 Budweiser Brewing Co. v. Capparelli, i6 Misc. 502 ; Wamsley 
 V. Darragh, 14 Misc. 566. 
 
 But otherwise as to an indorser. 
 
 Meise v. Newman, 76 Hun, 341. 
 
 To hold an indorser there must be a demand. 
 
 Griffin v. Goif, 12 Johns. 423; Johnson v. Haight, 13 Johns. 
 470; Ranson v. Mack, 2 Hill, 587. 
 
 But it seems otherwise if the note is non-negotiable. 
 
 Seymour v. Van Slyck, 8 Wend. 403. 
 
 To hold the indorser of an accepted bill, the holder should at 
 the proper time present it to the acceptor, or at the place of 
 payment, and demand its payment. 
 
 Bank of Vergennes v. Cameron, 7 Barb. 143. 
 
 A demand must be made upon a check, in order to recover 
 against the drawer; and a delay in such a demand, which does 
 no injury to the drawer, does not discharge him. 
 
 Syracuse, etc. R. Co. v. Collins, i Abb. N. C. 47 ; Church v. 
 Farnham, i Sheld. 393; Scott v. Meeker, 20 Hun, 161; Murray 
 V. Judah, 6 Cow. 484; Harbeck v. Craft, 4 Duer, 122; Woodin 
 V. Frazee, 6 J. & S. 190; Reiners v. Davis, 2 City Ct. 215. 
 
 The fact that no injury resulted must be shown by the holder. 
 
 Griffin v. Riblet, 6 N. Y. Leg. Obs. 421; Mulcahy v. Devlin, 
 2 City Ct. 218. 
 
 A check must be presented for payment by the transferee, at 
 the proper time, under penalty of his losing his remedy against 
 the indorser, and the original consideration for which it was 
 transferred. But it may be proven that the indorser was not 
 injured by the failure to present. 
 
 Carroll v. Sweet, 9 Misc. 382. 
 
 Negligence in presenting a check for payment does not dis- 
 charge the debt for which it was given, unless the party owing 
 
PRESENTMENT FOR PAYMENT. 71 
 
 the debt is an indorser or unless he is shown to have been dam- 
 aged by such negligence. 
 
 Greenwich Ins. Co. v. Oregon Improvement Co., 76 Hun, 194. 
 
 A bill payable on demand must be presented within a reason- 
 able time to hold the drawer; but it may be shown that he has 
 sustained no injury by the delay. 
 
 Vantrot V. McCuUoch, 2 Hilt. 272. 
 
 Though a bill has been dishonored, but accepted by a third 
 person supra protest, the drawers are not liable without proof of 
 demand. 
 
 Schofield V. Baird, 3 Wend. 488. 
 
 Where the drawer and drawee made a settlement without 
 allowing for an outstanding non-negotiable draft, the drawer is 
 not discharged by the omission of presentment. 
 
 Stewart v. Millard, 7 Lans. 373. 
 
 The payment of a note must be demanded in order to charge 
 the indorser, though he hold security for his indemnity. 
 
 Seacord v. Miller, 13 N. Y. 55; Bunce v. Lytle, 13 Barb. 163. 
 
 The taking by an indorser of security from the maker, does 
 not revive the former's liability where there has been no due 
 presentment. 
 
 Otsego County Bank v. Warren, 18 Barb. 290 ; Gawtry v. 
 Doane, 48 Barb. 148. 
 
 A drawer who has been discharged by failure of presentment 
 and notice will not be liable because of a subsequent acknowl- 
 edgment by himself, unless such acknowledgment was made 
 with the knowledge that he had been discharged. 
 
 Jones V. Savage, 6 Wend. 658; Hazleton v. Colburn, 2 Abb. 
 Pr. (N. S.) 199. 
 
 Nor does he assume a new liability by giving a duplicate bill 
 for one lost. 
 
 Benton v. Martin, 40 N. Y. 345. 
 
 Suit may not be brought against the drawer of a check until 
 after presentment. 
 
 Harker v. Anderson, 21 Wend. 372; Judd v. Smith, 3 Hun, 
 190. 
 
 But it seems otherwise where the check has been fraudulently 
 passed. 
 
 De Voe v. Moffat, Anth. N. P. 221. 
 
 Presentment at the place named is not necessary to give a right 
 of recovery; but where the instrument is not presented and it 
 
72 THE NEGOTIABLE INSTRUMENTS LAW. 
 
 appears that there were funds ready at the time and place named 
 with which to pay it, such readiness is equivalent to a tender 
 before suit brought, and an answer pleading that fact and pay- 
 ment of the money due into court will be a bar to the recovery 
 of interest and costs. 
 
 Schmidt v. Hoffmann, i8 Misc. 225. 
 
 If a note be payable at a particular bank presentment at such 
 bank is not necessary to charge the maker. If he was ready to 
 pay at the time and place appointed, he is relieved from liability 
 for interest and the costs, but he must pay the money into the 
 court in order to avail himself of it. 
 
 Hills V. Place, 48 N. Y. 520. 
 
 Presentment and demand of payment must be alleged in the 
 complaint in an action against the indorser. 
 
 Jaflray v. Krauss, 79 Hun, 449. 
 
 But demand need not be averred or proven by the plaintiff, 
 in an action by the payee against the acceptor of a bill drawn 
 payable at a particular place. The defendant may prove his 
 readiness to pay and avoid damages and costs. 
 
 Wolcott's Administratrix v. Van Santvoord, 17 Johns. 248; 
 Green V. Goings, 7 Barb. 652. 
 
 In an action aganist the maker of a note payable at a particular 
 time and place, the complaint need not state that presentment 
 was made. 
 
 Caldwell v. Cassidy, 8 Cow. 271; Haxtun v. Bishop, 3 Wend. 
 13; Hill V. Place, 7 Rob. 389. 
 
 But it seems that presentment must be pleaded in an action 
 against the indorser. 
 
 Turner v. Comstock, 7 N. Y. Leg. Obs. 23; Alder v. Bloom- 
 ingdale, i Duer, 601 ; Cottrell v. Conklin, 4 Duer, 45 ; Conklin v. 
 Gandall, i Keyes, 228; Price v. McClave, 5 Duer, 67; Ferner 
 V. Williams, 37 Barb. 9; Gay v. Paine, 5 How. Pr. ro7; Adams v. 
 Sherrill, 14 How. Pr. 297. 
 
 And such plea of presentment is proper, where no demand was 
 made on the maker on account of his absence abroad, or where 
 the note was, in fact, presented at the maker's last place of resi- 
 dence, from which he had removed, and he could not be found. 
 
 Cummings v. Fisher, Anth. N. P. i ; Williams v. Matthews, 
 3 Cow. 352; Paton v. Lent, 4 Duer, 231; Stewart v. Eden, 2 
 Caines, 12T. 
 
PRESENTMENT FOR PAYMENT. 73 
 
 In an action against the drawer of a check, the complaint must 
 state presentment or lack of funds excusing it. 
 
 Shultz V. Depuy, 3 Abb. Pr. 252; Frisbee v. Jacobs, i Rob. 
 C. C. 235. 
 
 Under the code, it is insufficient to allege in the complaint that 
 the bill was duly presented for payment; the facts must be set 
 forth. 
 
 Graham V. Machado, 6 Duer, 514. 
 
 The certificate of a notary public is not conclusive as to the 
 facts certified, but it may be shown that presentment was not 
 made by him and that he had no personal knowledge thereof. 
 
 Meise v. Newmann, 76 Hun, 341. 
 
 Presentment where instrument is not payable on 
 demand. 
 
 § 131. Where the instrument is not payable on 
 demand, presentment must be made on the day it 
 falls due. Where it is payable on demand, present- 
 ment must be made within a reasonable time after 
 its issue, except that in the case of a bill of exchange, 
 presentment for payment will be sufficient if made 
 within a reasonable time after the last negotiation 
 thereof. 
 
 The payee is bound only to use reasonable diligence in present- 
 ing in order to charge the drawer. 
 
 Buckhalter v. Second Nat Bank, 42 N. Y. 538 ; Syracuse, 
 etc. R. Co. V. Collins, 57 N. Y. 641; First Nat Bank v. Fourth 
 Nat. Bank, 77 N. Y. 320. 
 
 A drawer who requests the payee to hold the bill for an indefi- 
 nite period without presentment, assumes the risk of the drawee's 
 insolvency, and releases the payee from the diligence required in 
 presenting. 
 
 Sheldon v. Chapman, 31 N. Y. 644. 
 
 Where there are any funds of the drawer in the hands of the 
 drawee, or, if at the time the bill is drawn, there are circum- 
 stances sufficient to induce a reasonable expectation that the bill 
 
74 THE NEGOTIABLE INSTRUMENTS LAW. 
 
 will be accepted or paid, the drawer is entitled to due diligence 
 in presentment of it. 
 
 Robinson v. Ames, 20 Johns. 146. 
 
 Where a bill has been accepted the drawer will not be held 
 without proof of due diligence in demanding payment of the 
 acceptor. 
 
 Monroe v. Easton, 2 Johns. Cas. 75 ; Elting v. Brinkerhoff, 2 
 Hall, 459. 
 
 Where a bill is drawn payable at sight or a certain number of 
 days after sight, there is no fixed rule for its presentation; but 
 the holder is bound to use due diligence and put the bill into 
 circulation. 
 
 Robinson v. Ames, 20 Johns. 146. 
 
 A draft must be presented for payment within a reasonable 
 time or the indorser is discharged. 
 
 Darnell v. Morehouse, 45 N. Y. 64. 
 
 A draft, payable on a certain day, must be presented in the last 
 day of grace or the indorser is discharged. 
 
 Montgomery County Bank v. Albany City Bank, 8 Barb. 396. 
 
 .\ draft upon a bank, payable at a certain day after date, must 
 be presented on that day without grace in order to charge the 
 drawer. 
 
 Ransom v. Wheeler, 12 Abb. Pr. 139. 
 
 A draft payable at sight need not be presented until the day 
 after it is received. 
 
 Kelty V. Bank of Erie, 52 Barb. 328. 
 
 A delay of four days in presenting a draft payable on demand 
 discharges the drawer. 
 
 Brady v. Railroad Co., 34 Barb. 249. 
 
 A note payable on demand with interest need not be presented 
 within any particular time in order to hold the indorser. 
 
 Merritt v. Todd, 23 N. Y. 28. 
 
 But the general rule is that a note payable on demaind must be 
 presented for payment within a reasonable time. 
 
 Sicev. Cunningham, i Cow. 397; Van Hoesen v. Van Alstine, 
 3 Wend. 75; Salmson v. Grosvenor, 66 Barb. 160; Strong v. 
 Duke, 5 Alb. L. J. 250; Crim v. Starkweather, 88 N. Y. 339. 
 
 And this rule applies chiefly to notes made for commercial 
 purposes. 
 
 Vreelend v. Hyde, 2 Hall, 429. 
 
PRESENTMENT FOR PAYMENT. 75 
 
 The same is true of a note payable one day after sight. 
 
 Alexander V. Parson, 3 Lans. 333. 
 
 Where a note was payable one day after date and was not pre- 
 sented for two years, the indorser was discharged. 
 
 Isenlord V. Dillenback, 79 N. Y. 617. 
 
 The holder must present the check with reasonable diligence, 
 in order to hold the inaorser. Laches in the holder is a question 
 of law, when there is no dispute about the facts. 
 
 Mohawk v. Broderick, 10 Wend. 304; Gough v. Staats, 10 
 Wend. 549. 
 
 A check must be presented with due diligence and within a 
 reasonable time or the drawer will not be held. 
 
 Cruger v. Armstrong, 3 Johns. Cas. 5 ; Parker v. Anderson, 
 21 Wend. 372; Little v. Phcenix Bank, 2 Hill, 425; Stephens 
 V. McNeill, 26 Barb. 651. 
 
 And the same rule holds in order to charge the indorsers. 
 
 Middletown Bank v. Morris, 28 Barb. 616. 
 
 If the payee of a draft present and surrender it to the drawee 
 on receiving his check for the amount, and fails to present the 
 check promptly, the drawer is discharged. 
 
 Smith V. Miller, 43 N. Y. 171; Bank of Meadville v. Fourth 
 National Bank, 16 Hun, 332. 
 
 The drawer of a check is discharged from liability by reason of 
 the drawee's default if presentment for payment is delayed be- 
 yond the space of one day after its delivery. 
 
 Syracuse, etc. R. Co. v. Collins, 57 N. Y. 651 j Kelty v. Bank, 
 52 Barb. 328; Cawein V. Browinski, 99 Am. Dec. 684; Strong 
 v. King, 85 Am. Dec. 336; Grant v. MacNutt, 12 Misc. 20. 
 
 It is not necessary to present a check on the day it is received. 
 
 Merchants' Bank v. Spicer, 6 Wend. 443 ; Kobbi v. Underhill, 
 3 Sand. Ch. 277; Turner v. Bank of Fox Lake, 3 Keyes, 425. 
 
 It was held that a check drawn on a New York city bank must 
 be presented for payment on the same or the next succeeding 
 day, during business hours, in order to charge the drawer in case 
 of the insolvency of the bank. 
 
 Hazleton v. Colburn, i Rob. 345. 
 
 A debtor who pays his debt with the check of a third person, 
 indorsed by himself, is discharged from liability as indorsee, if 
 the creditor holds the check nine days before presenting it. 
 
 Carroll v Sweet, 128 N. Y. 19. 
 
 Where a check was drawn a month prior to the death of an 
 
76 THE NEGOTIABLE INSTRUMENTS LAW. 
 
 intestate and was not presented for payment until several months 
 after her death, trial court was justified in finding that it was not 
 received in the usual course of business, and for a valuable 
 consideration. 
 
 Dimley v. McCullaugh, 92 Hun, 454. 
 
 A delay of fourteen years in presenting a check at a bank for 
 payment will not be considered a reasonable time for present- 
 ment, and the statute of limitations will bar recovery in such case. 
 
 Donlon v. Davidson, 7 App. Div. 46 1 . 
 
 See Nat. Hudson River Bank v. K. & H. R. Co., 17 App. 
 Div. 232, holding that a letter from a bank requiring the maker 
 of a demand note to pay it on a future day, on which day no 
 demand and protest is made, does not release the indorser. 
 
 What constitutes a sufficient presentment. 
 
 § 132. Presentment for payment, to be sufficient, 
 must be made : 
 
 1. By the holder, or by some person authorized 
 to receive payment on his behalf ; 
 
 2. At a reasonable hour on a business day ; 
 
 3. At a proper place as herein defined ; 
 
 4. To the person primarily liable on the instru- 
 ment, or if he is absent or inaccessible, to any per- 
 son found at the place where the presentmxnt is 
 made. 
 
 As to what circumstances are sufficient to justify the inference 
 of due presentment of a draft, see Paterson v. Stettauer, 8 J. & 
 S. 54. 
 
 It is not necessary that presentment be made by a notary, in 
 order to charge the indorser; any agent having lawful possession 
 of the note, may present it. 
 
 Crim V. Starkweather, 88 N. Y. 339; Baer v. Leppert, 12 
 Hun, 516. 
 
 A note payable at a bank, where the maker had no funds, was 
 delivered to the teller who was also a notary. On the day it 
 became due, after business hours, he demanded payment of 
 
PRESENTMENT FOR PAYMENT. TJ 
 
 himself at the bank door. It was held to be a sufficient pre- 
 sentment to charge the indorser. 
 
 Bank of Syracuse v. HoUister, 17 N. Y. 46. 
 
 Where a check was delivered by one bank to the porter of 
 another bank, upon which it was drawn, and it was returned 
 ' ' no good, ' ' held, there was sufficient evidence of presentment. 
 
 Merchants' Bank v. Spicer, 6 Wend. 443. 
 
 A presentment will be presumed to have been made during 
 business hours, unless the contrary is shown. 
 
 Cayuga County Bank v. Hunt, 2 Hill, 635. 
 
 It has been generally held that a constructive demand for pay- 
 ment of a promissory note cannot be made at the office of the 
 maker after business hours. 
 
 Salt Springs National Bank v. Burton, 58 N. Y. 430; Bank of 
 Syracuse v. HoUister, 1 7 N. Y. 46 ; Manufacturing Co. v. Bishop, 
 3 E. D. Smith, 48; Clough v. Hclden, 21 S. W. Rep. 1071. 
 
 Where a presentment is made at the drawee's place of busi- 
 ness, which is closed, it is sufficient to hold the indorser. 
 
 De Wolfe v. Murray, 2 Sand. 166. 
 
 A demand, at the place of business designated by the maker, 
 of the person who represents himself to be the maker, is prima 
 facie sufficient. 
 
 Hunt V. Maybee, 7 N. Y. 266. 
 
 Where the maker of a note executes, before maturity, an 
 assignment for the benefit of his creditors, to one of the indorsers 
 of the latter who continues to transact the business at the same 
 place, a presentment there is sufficient to charge the indorsers. 
 
 Benedict v. Caffe, 5 Duer, 226. 
 
 Place of Presentment. 
 
 § 133. Presentment for payment is made at the 
 proper place : 
 
 1. Where a place of payment is specified in the 
 instrument and it is there presented ; 
 
 2. Where no place of payment is specified, but 
 the address of the person to make payment is given 
 in the instrument and it is there presented ; 
 
 3. Where no place of payment is specified and no 
 
78 THE NEGOTIABLE INSTRUMENTS LAW. 
 
 address is given and the instrument is presented at 
 the usual place of business or residence of the per- 
 son to make payment ; 
 
 4. In any case if presented to the person to make 
 payment wherever he can be found, or if presented 
 at his last known place of business or residence. 
 
 Where a note is payable at a bank or other place, or a bill is 
 drawn or accepted payable in like manner, the general rule is 
 that {he presentment should be made there, and if there are no 
 funds to meet it, it may be protested for dishonor immediately after 
 the expiration of the day of maturity or. the last day of payment, 
 where days of grace are allowed. But the rule in the United 
 States seems to be that even though a note or bill is made pay- 
 able at a particular place, it is not necessary in respect to the 
 maker or acceptor to prove presentment or demand of payment 
 at such place in order to maintain an action against him. 
 
 See Daniel, sec. 643, and cases cited. 
 
 The parties to a note may agree orally that it shall be payable 
 at a particular place so as to make the demand there sufficient to 
 charge the indorser. 
 
 Myer v. Hibsher, 47 N. Y. 265. 
 
 If a note be payable at a particular place, it is sufficient pre- 
 sentment if the note is there. Meyer v. Hibsher, 47 N. Y. 
 265; Nichols V. Goldsmith, 7 Wend. 160; Woodin v. Foster, 
 16 Barb. 146. 
 
 Where a note was ,made payable at a bank and demand was 
 made on the maker personally in the city but not at the bank, 
 and no objection was made at the time, it was held sufficient 
 presentment. 
 
 Herring v. Sanger, 3 Johns. Cas. 71. 
 
 The presentment of a bill payable elsewhere at the residence 
 of the drawee will not charge the drawer. 
 
 Niagara District Bank v. Tool Manfg. Co., 31 Barb. 403. 
 
 A bill drawn on a resident of Liverpool and made payable in 
 London, but not at any particular place there, may be presented 
 for payment in either city. 
 
 Mason v. Franklin, 3 Johns. 202 ; Boot v. Franklin, 3 Johns. 
 208. 
 
PRESENTMENT FOR PAYMENT. J() 
 
 When the presentment is to the party in person, the place is 
 unimportant, but where it is made to an agent, as, for instance, 
 to a clerk in a business house, it is very important that the place 
 should be the place of business or residence of the maker or 
 acceptor, and diligence should be used in discovering this place. 
 
 See Bacon v. Hanna, 137 N. Y. 379. 
 
 Where no place of payment is specified it is suiificient to hold 
 the indorser, that reasonable diligence be used to ascertain the 
 residence or place of business of the maker. 
 
 Holtz V. Boppe, 37 N. Y. 634. 
 
 See Packard v. Lyon, 5 Duer, 82, for facts not constituting 
 reasonable diligence in inquiring for the residence of the maker 
 of a note. 
 
 Where the maker has removed from the State, the indorser 
 will be held if payment is demanded at the place where the note 
 is dated. 
 
 Anderson V. Drake, 14 Johns. 114. 
 
 But if the maker has a known place of residence when the 
 note is given, which is not changed, demand must be made there 
 though it be dated elsewhere. 
 
 Taylor V. Snyder, 3 Den. 145. 
 
 And this is true, though the maker's residence be in a foreign 
 country. 
 
 Spies V. Oilman, i N. Y. 321. 
 
 But see Adams v. Leland, 30 N. Y. 309; Foster v. Julien, 24 
 N. Y. 28; Driggs v. Driggs, 11 St. Rep. 256, holding that 
 if the maker of a note, even a corporation, remove from the 
 State before its maturity, the indorser may be charged without 
 presentment. 
 
 Where the maker of a note is notoriously absent in a foreign 
 country, and has no place of business at the place where it is 
 payable, demand need not be made at his last place of residence. 
 
 Cummings v. Fisher, Anth. N. P. i. 
 
 Instrument must be exhibited. 
 
 § 1 34. The instrument must be exhibited to the 
 person from whom payment is demanded, and when 
 it is paid must be delivered up to the party paying it. 
 
8o THE NEGOTIABLE INSTRUMENTS LAW. 
 
 The acceptor has a right to see the bill before he determines 
 whether he will pay it or not. If he pays it he has a right to 
 have it delivered to him for use as a voucher in his settlement 
 with the drawer. 
 
 Bank of Vergennes v. Cameron, 7 Barb. 143. 
 
 Where it is stated in the notarial certificate that the notary 
 went to the place of business of the acceptor to demand payment 
 and found it closed, it will be presumed that he had the bill 
 with him. 
 
 Ross V. Bedell, 5 Duer, 402. 
 
 The fact of presentment need not appear in the protest, but 
 the statement of the protest must import that when the notary 
 made the demand of payment, he had the bill with him, reacfy 
 to be delivered up, in case of payment. 
 
 Bank of Vergennes v. Cameron, 7 Barb. 143. 
 
 Presentment where instrument payable at bank. 
 
 § 1 35. Where the instrument is payable at a bank, 
 presentment must be made during banking hours, 
 unless the person to make payment has no funds 
 there to meet it at any time during the day, in which 
 case presentment at any hour before the bank is 
 closed on that day is sufficient. 
 
 The same rule is laid down in Newark India Rubber Manu- 
 facturing Co. V. Bishop, 3 E. D. Sm. 48. 
 
 Where a note is payable at a bank, no formal demand of pay- 
 ment is necessary to charge the indorser. It is sufficient if the 
 note be in the bank, as the maker is bound to have funds there 
 to meet it. 
 
 Troy City Bank v. Grant, Lalor, 119; Ogden v. Dobbin, 2 
 Hall, ri2; Merchants' Bank v. Elderkin, 25 N. Y. 178; Bank 
 of Groton v. Crittenden, 2 S. C. 118. 
 
 If an indorser undertake to pay a note made payable at a bank, 
 the fact that presentment was made after banking hours will not 
 discharge him. 
 
 Newark India Rubber Manufacturing Co. v. Bishop, 3 E. D. 
 Sm. 48 ; Salt Springs Bank v. Burton, 48 N. Y. 430. 
 
PRESENTMENT FOR PAYMENT. 8l 
 
 A note was made payable at a bank and was presented fifteen 
 minutes after banking hours in the usual course of business; it 
 was held sufficient presentment. 
 
 Bank of Utica v. Smith, i8 Johns. 230. 
 
 Presentment where principal debtor is dead. 
 
 I 1 36. Where the person primarily liable on the 
 instrument is dead, and no place of payment is speci- 
 fied, 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. 
 
 See note to sec. 169, post. 
 
 Presentment to persons liable as partners. 
 
 § 137. Where the persons primarily liable on the 
 instrument are liable as partners, and no place of 
 payment is specified, presentment for payment may 
 be made to any one of them, even though there has 
 been a dissolution of the firm. 
 
 A note made by a firm may be presented for payment to one 
 of the partners. 
 
 Gates V. Beecher, 60 N. Y. 518. 
 
 Where a bill is accepted by a firm, it must be presented at 
 their place of business or at the residence of one of the partners. 
 
 Otsego County Bank v. Warren, 18 Barb. 290. 
 
 Where one of the partners of a firm has died since the accept- 
 ance of the bill by the firm, and before it becomes due, a pre- 
 sentment to the survivor is sufficient to charge an indorser. 
 
 Cayuga County Bank v. Hunt, 2 Hill, 635. 
 
 Presentment to joint debtors. 
 
 § 138. Where there are several persons not part- 
 ners primarily liable on the instrument, and no 
 6 
 
■82 THE NEGOTIABLE INSTRUMENTS LAW. 
 
 •place of payment is specified, presentment must be 
 made to them all. 
 
 This same rule was laid down in Britt v. Lawson, 15 Hun, 123. 
 
 When presentment not required to charge the drawer. 
 § 1 39. Presentment for pa)anent is not required 
 in order to charge the drawer where he has no right 
 to expect or require that the drawee or acceptor will 
 ,pay the instrument. 
 
 Where the drawer of a check has no funds in the bank, pre- 
 sentment is not necessary. 
 
 Franklin V. Vanderpool, i Hall, 78; Fitch v. Redding, 4 Sand. 
 130; Healy v. Oilman, i Bos. 235; Coyle v. Smith, i E. D. 
 Sm. 400. 
 
 When presentment not required to charge the 
 endorser. 
 
 § 140. Presentment for payment is not required 
 
 in order to charge an endorser 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. 
 
 If an indorser obtains a note to be discounted for his own 
 accommodation and benefit, he is not entitled to presentment 
 and notice. 
 
 Beale v. Parrish, 20 N. Y. 407. 
 
 When delay in making presentment is excused. 
 
 § 141. Delay in making presentment for payment 
 is excused when the delay is caused by circumstances 
 beyond the control of the holder and not imputable 
 to his fault, misconduct or negligence. When the 
 
PRESENTATION FOR PAYMENT. 83 
 
 cause of delay ceases to operate, presentment must 
 
 be made with reasonable diligence. 
 See sec. 184, post. 
 
 When presentment may be dispensed with. 
 
 § 142. Presentment for payment is dispensed with: 
 
 1. Where after the exercise of reasonable diligence 
 presentment as required by this act cannot be made ; 
 
 2. Where the drawee is a fictitious person ; 
 
 3. By waiver of presentment expressed or implied. 
 
 After acceptance of a bill has been refused, no further 
 demand of payment is necessary to charge the drawer or indorser. 
 
 Plato V. Reynolds, 27 N. Y. 596; Bank of Rochester v. Gray, 
 2 Hill, 227. 
 
 Where the drawee suspends payment within the time required 
 for presentment, presentment and notice of dishonor are not 
 essential in order to charge to the drawer. 
 
 Lovett V. Carwell, 6 Wend. 369; Grant v. MacNutt, 12 
 Misc. 20. 
 
 So also, where the drawee has no funds of the drawer where- 
 with to pay the check. 
 
 Little V. Phoenix Bank, 2 Hill, 425; Mohawk Bank v. Brod- 
 erick, 10 Wend. 304; Murray v. Judah, 6 Cow. 490; Brush if. 
 Barrett, 82 N. Y. 400; Franklin v. Vanderpool, i Hall, 78; 
 Grant v. MacNutt, 12 Misc. 20; Daniel on Neg. Instruments, 
 sec. 1596. 
 
 And the same rule properly applies in case of partial deficiency 
 of deposit to meet it. 
 
 Erchelberger V. Finley, 16 Am. Dec. 312; Grant v. MacNutt, 
 12 Misc. 20; Daniel on Neg. Instruments, sec. 1597. 
 
 Where a drawer stops payment on a check, subsequent present- 
 ment is excused. 
 
 Woodin V. Frazee, 6 J. & S. 190. 
 
 Although the maker of a note has become insolvent, the note 
 must be presented for payment or the accommodation endorser 
 is discharged. 
 
 Jackson v. Richards, 2 Caines, 343. 
 
84 THE NEGOTIABLE INSTRUMENTS LAW. 
 
 Failure to demand will not be excused by proof of the insol- 
 vency of the maker of a note. 
 
 Smith V. Miller, 52 N. Y. 545; Manning v. Lyon, 70 Hun, 
 
 345- 
 
 A notice from the drawer that he has a defense to the bill 
 and that it will not be paid does not excuse presentment. 
 
 Francia v. Del Banco, 2 Duer, 133. 
 
 Where a bank on which a check is drawn is enjoined from 
 making any payments for an hour after being opened for busi- 
 ness, on the day following the date of the check, the holder is 
 excused from presentment. 
 
 Lovett V. Cornwell, 6 Wend. 369. 
 
 Of course, the maker and indorser of a promissory note may 
 waive demand and notice. This they may do by an explicit 
 declaration or by a request for renewal. 
 
 Cady V. Bradshaw, 116 N. Y. 188. 
 
 When instrument dishonored by non-payment. 
 
 § 143. The instrument is dishonored by non-pay- 
 ment 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. 
 
 The holder of a note is not bound to present it a second time; 
 and if there were no funds ready to pay it when first presented, 
 it is immaterial that funds were subsequently deposited on the 
 same day. 
 
 Ethelridge v. Ladd, 44 Barb. 69. 
 
 Liability of person secondarily liable, when instru- 
 ment dishonored, 
 
 § 144. 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. 
 
PRESENTATION FOR PAYMENT. 85 
 
 Time of maturity. 
 
 § 145. Every negotiable instrument is payable at 
 the time fixed therein without grace. When the day 
 of maturity falls upon Sunday, or a holiday, the 
 instrument is payable on the next succeeding busi- 
 ness day. Instruments falling due on Saturday are 
 to be presented for payment on the next succeeding 
 business day, except that instruments payable on 
 demand may, at the option of the holder, be pre- 
 sented for payment before twelve o'clock noon on 
 Saturday when that entire day is not a holiday. 
 
 The same rule as to presentment on Saturday is found in 
 Sylvester, et al. v. Crohan et al., 138 N. Y. 494. 
 
 A posf-da.ted check falling due on Sunday, must not be pre- 
 sented before the following day. 
 
 Salter v. Burt, 20 Wend. 205. 
 
 Time ; how computed. 
 
 § 146. Where the interest is payable at a fixed 
 period after date, after sight, or after the happening 
 of a specified event, the time of payment is deter- 
 mined by excluding the day from which the time 
 is to begin to run, and by including the date of 
 payment. 
 
 Code Civ. Proc, sec. 788. 
 
 Rule where instrument payable at bank. 
 
 § 147. Where the instrument is made payable at 
 a bank it is equivalent to an order to the bank to pay 
 the same for the account of the principal debtor 
 thereon. 
 
86 THE NEGOTIABLE INSTRUMENTS LAW. 
 
 What constitutes payment in due course 
 
 § 148 Payment is made in due course when it is 
 made at or after the maturity of the instrument to 
 the holder thereof in good faith and without notice? 
 that his title is defective. 
 
 ARTICLE VII. 
 
 NOTICE OF DISHONOR. 
 
 Section 160 To whom notice of dishonor must be given. 
 
 161. By whom given. 
 
 l62i Notice given by agent. 
 
 163 Effect of notice given on behalf of holder. 
 
 164. Effect where notice is given by party entitled thereto. 
 
 165. When agent may give notice 
 
 166. When notice sufficient. 
 
 167. Form of notice, 
 
 168. To whom notice may be given. 
 
 169. Notice where party is dead. 
 
 170. Notice to partners. 
 
 171. Notice to persons jointly liable. 
 
 172. Notice to bankrupt. 
 
 173. Time within which notice must be given. 
 174.. Where parties reside in same place. 
 
 175. Where parties reside in different places. 
 
 176; When sender deemed to have given due notice. 
 
 177. Deposit in post-office, what constitutes. 
 
 178. Notice to subsequent parties, time of. 
 
 179. When 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-paymenttwhere acceptance refused. 
 
 188. Effect of omission to give notice of non-acceptance. 
 
 189. When protest need not be made ; when must be made. 
 
NOTICE OF DISHONOR. 87 
 
 To whom notice of dishonor must be giveh- 
 
 § 160. Except as herein otherwise provided, when 
 a negotiable instrument has been dishonored by non-- 
 acceptance or non-payment, notice of dishonor must 
 be given to the drawer and to each indorser, and any 
 drawer or indorser to whom such notice is not given 
 is discharged. 
 
 The same rule is laid down in. the English Bills of Exchange 
 Act, sec. 48. See also the English cases : Berridge v. Fitz- 
 gerald, L. R. 4 Q. B. 639; Studdy V. Beesty, 60 Law Times, 
 647; Turner v. Leech, 4 Barn. & Aid. 451. 
 
 Where a party is discharged from liability to a bill or note by 
 the holder's omission to give notice of dishonor, he is also dis- 
 charged from liability on the debt or other consideration for 
 which the bill was given. 
 
 Bridges v. Berry, 3 Taunt. 1 3 1 j Jones v. Savage, 6 Wend; 
 659; Woodcock V. Bennet, i Cow. 711. 
 
 Where there are any- funds of the drawer in the hands of the 
 drawee, or, if^ at the time the bill is drawn there are circum- 
 stances suiBcient to induce a reasonable expectation that the bill 
 will be accepted or paid, the drawer is entitled to notice of its 
 dishonor. 
 
 Robinson v. Ames, 20 Johns. 146. 
 
 Presentment of demand ' and also due notice of non-payment 
 are conditions precedent to the liability of the drawer and indorseri 
 
 Bank of Vergennes v. Cameron, 7 Barb. 143. 
 
 By whom given. 
 
 § 161. 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. 
 
88 THE NEGOTIABLE INSTRUMENTS LAW. 
 
 See English Bills of Exchange Act, sec. 49 (i); Chapman v. 
 Keene, 3 Ad. & Ell 193; Turner v. Leech, 4 Barn. & Aid. 451; 
 Harrison v. Ruscoe, 15 M. & W- 234; Lysaght v. Bryant, 9 C. 
 B. 46; Daniel on Neg. Inst., sees. 987, 990; Staiford v. Yates, 
 18 Johns. 327; Bachellor v. Priest, 12 Pick. 406; Stanton v. 
 Blossom, 14 Mass. ir6; Bank v. Goddard, 5 Mason, 366; Trip- 
 lett V Hunt, 3 Dana (Ky.), 126; Renshaw v. Triplet, 23 Mo. 
 213; Whitman v. Bank, 8 Porter (Ala.), 258; Marr v. Johnson, 
 9 Yerger (Tenn.), i; Swayze v. Britton, 17 Kan. 627; Brails- 
 ford V. Williams, 15 Md. 150; Bigelow on Bills & Notes, p 
 279; Chanoine v. Fowler, 3 Wend. 173. 
 
 The presenting notary may give notice. 
 
 Smedes v. Bank, 20 Johns. 372; Bank v. Smith, r8 Johns. 
 230; Safford v. Wyckoff, i Hill, 11 j Cowperthwaite v. Sheffield, 
 I Sand. 416. 
 
 As to bank giving notice, see Howard v. Ives, i Hill, 263; 
 Mead v. Engs. s Cow. 303; Sheldon v. Benham, 4 HiU, 129. 
 
 Notice given by agent. 
 
 § 162. Notice of dishonor may be given by an 
 agent either in his own name or in the name of 
 any party entitled to give notice, whether that 
 party be his principal or not. 
 
 See English Bills of Exchange Act, sec. 49 (2) ; Harrison v. 
 Ruscoe, 15 M. &W. 231. 
 
 See notes under sec. 161 of this act, anfe. 
 
 Effect of notice given on behalf of holder. 
 
 § 163. 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. 
 
 See English Bills of Exchange Act, sec. 49 (3), and cases 
 cited under sec. i6i of this act, anie. And see Spencer v. 
 Ballou, i8 N. Y. 327. 
 
NOTICE OF DISHONOR. 89 
 
 Effect where notice is given by party entitled thereto. 
 § 164. 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. 
 
 See English Bills of Exchange Act, sec. 49 (4) and cases 
 cited under sec. 161 of this act, ante. 
 
 When agent may give notice. 
 
 § 165 Where the instrument has been dishonored 
 in the hands of an agent, he may either himself give 
 notice to the parties liable thereon, or he may give 
 notice to his principal. If he give notice to his 
 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. 
 
 See English Bills of Exchange Act, sec. 49 (13); Bray v. 
 Hadwen, 5 M. & S. 68. 
 
 When notice sufficient. 
 
 § 166. A written notice need not be signed, and 
 an insufficient written notice may be supplemented 
 and validated by verbal communication. A misde- 
 scription of the instrument does not vitiate the notice 
 unless the party to whom the notice is given is in 
 fact misled thereby. 
 
 See English Bills of Exchange Act, sec. 49 (7); see notes to 
 next section. 
 
go THE NEGOTIABLE INSTRUMENTS LAW. 
 
 Form of notice. 
 
 § 167. The notice may be in writing or merely 
 oral and may be given in any terras which suffi'- 
 ciently identify the instrument, and indicate that it' 
 has been dishonored by non-acceptance or non- 
 payment. It may in all cases be given by delivering 
 it personally or through' the mails. 
 
 See English Bills of Exchange. Act, sec. 49 (5). 
 
 Verbal notice is sufficient. 
 
 Cuyler v. Stevens, 4 Wend. 506. 
 
 Where a person made a number of notes alike in all particulars,, 
 except as to certain numbers marked in the margin, it was held* 
 that the omission to state the number in a notice of non-payment; 
 of one of them did not vitiate the notice. 
 
 Hodges V. Shuler, 22 N. Y. 115. See, also, Cook-v. Litch- 
 field, 5 Sand. 330; Cook v. Litchfield, 5 Seld. 286; Gbok v;, 
 Litchfield, 2 Bos. 147. 
 
 It would be fatal to omit entirely from the notice the name of 
 the maker. 
 
 Home Ins. Co. v. Green, 19, N. Y. 518. 
 
 As to wrong description of date, see Cayuga Co. Bank. v. 
 Warden, i N. Y. 413; of amount, see Cayuga Co. Bank v. 
 Warden, i N. Y. 413; Downer v. Remer, 23: Wend. 670; Bank 
 V. Gould, 9 Wend. 279; Reedy v. Seixas, 2 Johns.. Cas. 337. 
 
 As to what is sufficient intimation of dishonor, see Arnold v. 
 Kinloch, 50 Barb. 44; De Wolf v. Murray, 2 Sand; 166; Cook 
 v. Litchfield,. 5 Sand. 330; Beals v. Peck, 12 Barb.^ 445. As to 
 wrong statement of time of presentment or protest, see Ontario 
 Bank v. Petrie, 3: Wend. 456. 
 
 To whom notice may be given. 
 
 § 168 Notice of dishonor may be given either to 
 the party himself or to his agent in that behalf. 
 
 See English Bills of Exchange Act, sec. 49 (8). 
 The same rule is laid down in Fassin v. Hubbard, 55 N. Y, 
 471. See Hubbard v. Matthews, 54 N. Y. 50. 
 
NOTICE OF DISHONOR. 9I' 
 
 Notice where party is dead. 
 
 § 169. When any party is dead, and his death is 
 known to the party giving notice, the notice must 
 be given to a personal representative, if there be one, 
 and if, with reasonable diligence, he can be found. 
 If there be no personal representative, notice may 
 be sent to the last residence or last place of business 
 of the deceased. 
 
 See English Bills of. Exchange Act, sec. 49 (9); Cayuga Co, 
 Bank v. Bennett, 5 Hill, 2365 Bealls v. Peck, 12 Barb. 245; 
 Merchants' Bank v. Birch, 17 Johns. 25; Magruder v. Union 
 Bank, 3 Pet. 87. 
 
 Notice to partners. 
 
 I 170. Where the parties to be notified are part- 
 ners, notice to any one partner is notice to the firm 
 even though there has been a dissolution. 
 
 For same rule, see Gowan v. Jackson, 20 Johns; 176; Hub- 
 bard V. Matthews, 54 N. Y. 50. 
 
 If an indorser be a- member of the firm, the notice to the firm 
 is suificient. 
 
 Rhett V. Poe, 2 How. 457. 
 
 The admission by one of two partners who have indorsed' a 
 draft in the name of the firm, that the draft had been duly pro'-' 
 tested will not, if made after the dissolution of the partneiship, 
 be allowed to have the effect of proving notice as against the 
 other indorser. 
 
 Bank of Vergennes v. Cameron, 7 Barb. 143. 
 
 Notice to persons jointly liable. 
 
 § 171. Notice to joint parties who are not part- 
 ners must be given to each of them, unless one of. 
 
92 THE NEGOTIABLE INSTRUMENTS LAW. 
 
 them has authority to receive such notice for the 
 
 others. 
 
 See English Bills of Exchange Act, sec. 49 (11). See Cayuga 
 County Bank v. Warden, 6 N. Y. 19; Hubbard v. Matthews, 54 
 N. Y. 50; Bealls v. Peck, 12 Barb. 245. 
 
 Notice to bankrupt. 
 
 § 172. Where a party has been adjudged a bank- 
 rupt or an insolvent, or has made an assignment for 
 the benefit of creditors, notice may be given either 
 to the party himself or to his trustee or assignee. 
 
 See English Bills of Exchange Act, sec. 49 (10). 
 Settles a doubtful point. Heretofore customary to give notice 
 to both. 
 
 Dan., sec. 1002. 
 
 Time within which notice must be given. 
 
 § 1 73. Notice may be given as soon as the instru- 
 ment is dishonored ; and unless delay is excused as 
 hereinafter provided, must be given within the 
 times fixed by this act. 
 
 See English Bills of Exchange Act, sec. 49 (12); Berridge v. 
 Fitzgerald, 38 L. J. Q. B. 335 ; Studdy v. Beesty, 60 Law Times, 
 647; Bray v. Hadwen, 5 M. & S. 68; Smith v. Mullett, 2 
 Camp. 208; Hirschf eld V. Smith, L. R. i C. P. 340; Home v. 
 Ruoquette, 3 Q. B. D. 5r4; Daniel on Neg. Inst., sec. 1016. 
 
 Where parties reside in same place. 
 
 § 174. Where the person giving and the person 
 to receive notice reside in the same place, notice 
 must be given within the following times : 
 
 I. 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 ; 
 
NOTICE OF DISHONOR. 93 
 
 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 in time to reach him in usual course on 
 the day following. 
 
 See English Bills of Exchange Act, sec. 49 (12a), and cases 
 cited under sec. 173 of this act, ante. 
 
 See as to who are to be regarded as of the same place. 
 
 Ransom v. Mack, 2 Hill, 587; Ireland v. Kip, 10 Johns. 490. 
 See, also. Bank v. Hunt, 2 Hill, 635; Smith v. Poillon, 23 Hun, 
 632; Cuyler v. Stevens, 4 Wend. 566; Lenox v. Roberts, 2 
 Wheat. 373; Lawson v. Farmer's Bank, i Ohio St. 206, as 
 reported in Johns. lUus. Cases, 203, and note. 
 
 Where parties reside in different places. 
 
 § 175. Where the person giving and the person 
 to receive notice reside in different places, the notice 
 must be given within the following times : 
 
 1. If sent by mail, it must be deposited in the 
 post-office in time to go by mail the day following 
 the day of dishonor, or if there be no mail at a 
 convenient hour on that day, by the next mail 
 thereafter. 
 
 2. If given otherwise' than through the post-office, 
 then within the time that notice would have been 
 received in due course of mail, if it had been 
 deposited in the post-office within the time specified 
 in the last subdivision. 
 
 See English Bills of Exchange Act, sec. 49 (12b), and cases 
 cited under sec. 173 of this act, ante. 
 
 See Howard v. Ives, i Hill, 263; Smith v. Poillon, 23 Hun, 
 632; Cuyler v. Stevens, 4 Wend. 566. 
 
94 THE NEGOTIABLE INSTRUMENTS LAW. 
 
 When sender deemed to have given due notice. 
 
 § 1 76. Where notice of dishonor is duly addressed 
 and deposited in the post-office, the sender is deemed 
 to have given due notice, notwithstanding any mis- 
 carriage in the mails. 
 
 See L. 1857, ch. 416, repealed by this act. 
 
 See English Bills of Exchange Act, sec. 49 (15); Stocken v. 
 CoUen, 7 M. & W. 515; Miller v. Hackley, 5 Johns. 375; 
 Schofield V. Bayard, 3 Wend. 488. 
 
 The fact that an indorser, shortly after the draft becomes due, 
 exhibits a notice of protest which he has just taken from the post- 
 ofifice, is not evidence of due notice to the indorser. 
 
 Bank of Vergennes v. Cameron, 7 Barb. 143. 
 
 The rule in the text is analogous to the common-law rule in 
 regard to the acceptance of offers made by mail. 
 
 Deposit in post-office ; what constitutes. 
 
 § 177. Notice is deemed to have been deposited 
 in the post-office when deposited in any branch post- 
 office or in any letter box under the control of the 
 post-office department. 
 
 For same rule, see Greenwich Bank v. De Groot, 7 Hun, 211; 
 L. 1897, ch. 40, amending Code Civ. Proc, 797, as to service 
 through post-office, to take effect Sept. ist, 1897. 
 
 Notice to subsequent party ; time of. 
 
 § 1 78. 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. 
 
 See English Bills of Exchange Act, sec. 49 (14); Wright v. 
 Shawcross, 2 B. &Ald. 501, n. 
 
NOTICE OF DISHONOR. 95 
 
 Where notice must be sent. 
 
 § 179. Where a party has added an address to 
 his signature, notice of dishonor must be sent to that 
 address ; but if he has not given such address, then 
 the note must be sent as follows : 
 
 1. Either to the post-office nearest to his place of 
 residence, or to the post-office where he is accus- 
 tomed to receive his letters; or 
 
 2. If he live in one place, and have his place of 
 business in another, notice may be sent to either 
 place; or 
 
 3. If he is sojourning in another place, notice may 
 be sent to the place where he is so sojourning. 
 
 But where the notice is actually received by the 
 party within the time specified in this act, it will be 
 sufficient, though not sent in accordance with the 
 requirements of this section. 
 
 See L. 1835, ch. 141, and 1857, ch. 416, repealed by this act. 
 
 Notice is sufficient if mailed to the indorser, at the place where 
 the collecting agent believes he lives, although he does not live 
 there, and the holder knows his residence, but fails to com- 
 municate it to the agent. 
 
 Bartlett v. Isbell, 31 Conn. 296. 
 
 The holder cannot rely upon the fact that the indorser' s address 
 is given in the directory of the place of the holder's residence. 
 
 Bacon V. Hanna, 137 N. Y. 379. 
 
 See Ireland v. Kip, 10 Johns. 491; Bank v. Hewlett, 4 Wend. 
 328; Cuyler V. Nellis, 4 Wend. 398; Reid v. Payne, 16 Johns. 
 2]' 8; Bank v. Marsh, 3 Seld. 481; Bartlett v. Robinson, 39 N. 
 Y. 187; Morris v. Husson, 4 Sand. 93; Bank v. Neass, 2 N. Y. 
 442; Lowery v. Scott, 24 Wend. 358; Bank v. Phillips, 3 
 Wend. 408; Requa v. Collins, 51 N. Y. 148; Bank v. Bender, 
 21 Wend. 643; Ward v. Perrin, 54 Barb. 89; Adams v. Leland, 
 30 N. Y. 309; Foster v. Julien, 24 N. Y. 28. 
 
96 THE NEGOTIABLE INSTRUMENTS LAW. 
 
 Waiver of notice. 
 
 § 180. Notice of dishonor may be waived, either 
 before the time of giving notice has arrived, or after 
 the omission to give due notice, and the waiver may 
 be express or implied. 
 
 See English Bills of Exchange Act, sec. 50 (2 b.); Phipson 
 V. Kellner, 4 Camp. 285; Woods v. Dean, 32 L. J. Q. B. i; 
 Cordery v. Colville, 32 L. J. C. P. 210. 
 
 The secretary of a corporation of which a receiver has been 
 appointed may waive notice of protest. 
 
 Ludington V. Thompson, 4 App. Div. 117. 
 
 As to waiver by a partner, see Baer v. Leppert, 1 2 Hun, 516; 
 when made to a stranger, Miller v. Hackley, 5 Johns. 375. 
 
 See Spencer v. Harvey, 17 Wend. 489, as to waiver written on 
 a separate paper. 
 
 See Leary v. Miller, 61 N. Y. 489; Bank v. Dill, 5 Hill, 404. 
 
 The waiver may be either verbal or in writing, and it is not 
 necessary that it 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. Before the maturity of a note, the defend- 
 ant indorser called upon the plaintiff, who was the holder, and 
 asked to have it extended another year. To this the plaintiff 
 agreed, on condition that the defendant should let his name 
 remain upon it and " let it be as it was." To this the defend- 
 ant said yes. This was held to be a waiver of the indorser's 
 light to a demand of payment and notice of non-payment thereof. 
 
 Cady v. Bradshaw, 116 N. Y. 188. 
 
 Whom affected by waiver. 
 
 § 181. Where the waiver is embodied in the 
 instrument itself, it is binding upon all parties; but 
 where it is written above the signature of an indorser, 
 it binds hini only. 
 
 See Turner v. Leech, 4 B. & Aid. 451. 
 
NOTICE OF DISHONOR. 97 
 
 Waiver of protest. 
 
 § 182. A waiver of protest, whether in the case of 
 a foreign bill of exchange or other negotiable instru- 
 ment, is deemed to be a waiver not only of a formal 
 protest, but also of presentment and notice of 
 dishonor. 
 
 See Porter v. Kemball, 53 Barb. 467; Coddington v. Davis, 
 I N. Y. 186; Hood V. Hallenbeck, 7 Hun, 364; Backus v. 
 Shipherd, 11 Wend. 629; Bradford v. Corey, 5 Barb. 461; 
 Seabury v. Hungerford, 2 Hill, 80; Benton v. Martin, 40 N. 
 Y. 345; Sheldon v. Chapman, 31 N. Y. 644. 
 
 When notice is dispensed with. 
 
 § 183. Notice of dishonor is dispensed with when, 
 after the exercise of reasonable diligence, it cannot 
 be given to or does not reach the parties sought to 
 be charged. 
 
 See English Bills of Exchange Act, sec. 50 (2a) ; Studdy v. 
 Beesty, 60 Law Times, 647; Beale v. Parrish, 20 N. Y. 407. 
 
 As to what constitutes reasonable diligence, see Lambert v. 
 Ghiselin, 9 How. 45 2 ; Bank v. Bender, 2 1 Wend. 643 ; Chap- 
 man V. Liscombe, i Johns. 294; Ransom v. Mack, 2 Hill, 587; 
 Bank v. De Groot, 7 Hun, 212; Harris v. Robinson, 4 How. 
 336; Baerv. Leppert, 12 Hun, 516; Gawtry v. Doane, 51 N. Y. 
 92; Lawrence v. Miller, 16 N. Y. 235. 
 
 Delay in giving notice; how excused. 
 
 § 184. Delay in giving notice of dishonor is 
 
 excused when the delay is caused by circumstances 
 
 beyond the control of the holder and not imputable 
 
 to his default, misconduct or negligence. When the 
 
 7 
 
98 THE NEGOTIABLE INSTRUMENTS LAW. 
 
 cause of delay ceases to operate, notice must be 
 given with reasonable diligence. 
 
 See English Bills of Exchange Act, sec. 50 (i), and cases 
 cited under sec. 173 of this act, ante. 
 
 War as an excuse. 
 
 Woods V. Wilder, 43 N. Y. 164; Harden v. Boyce, 59 Barb. 
 427; Griswold V. Waddington, 19 Johns. 438; Morgan v. Bank 
 of Louisville, 4 Bush. (Ky.) 82. 
 
 Disease as an excuse. 
 
 Tunno v. Lague, 2 Johns. Cas. i. 
 
 When notice need not be given to drawer. 
 
 § 185. Notice of honor 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 ; 
 
 2. Where the drawee is a fictitious person or a 
 person not having capacity to contract; 
 
 3. Where the drawer is the person to whom the 
 instrument is presented for payment ; 
 
 4. Where the drawer has no right to expect or 
 require that the drawee or acceptor will honor the 
 instrument ; 
 
 5. Where the drawer has countermanded pay- 
 ment. 
 
 See English Bills of Exchange Act, sec. 50 (2c) ; Sharpe v. 
 Bailey, 9 B. & C. 44; Carew v. Duckworth, L. R. 4 Ex. 313; 
 Robinson v. Ames, 20 Johns. 146. 
 
 Where the drawer of a bill is a partner of the house or firm on 
 which it is drawn, it is not necessary for the holder to prove that 
 notice of its dishonor was given to the drawer. 
 
 Gowan v. Jackson, 20 Johns. 176. 
 
 Where drawer and drawee are the same person, see Fairchild 
 V. R. R., 15 N. Y. 337. 
 
ITOTICE OF DISHONOR. 99 
 
 When notice need not be given to indorser. 
 
 § 186. Notice of dishonor is not required to be 
 given to an indorser in either of the following cases : 
 
 1. Where the drawee is a fictitious person or a 
 person not having capacity to contract, and the 
 indorser was aware of the fact at the time he indorsed 
 the instrument; 
 
 2. Where the indorser is the person to whom 
 the instrument is presented for payment ; 
 
 3. Where the instrument was made or accepted 
 for his accommodation. 
 
 See English Bills of Exchange Act of 1882, sec. 50 (2d) ; 
 Caunt V, Thomson, 18 L. J. C. P. 125 ; St. John v. Roberts, 31 
 N. Y. 441; Williams V. Matthews, 3 Cow. 252. 
 
 If an indorser obtains a note to be discounted for his own 
 accommodation and benefit he is not entitled to notice, and so 
 too, if he cannot be found after reasonable diligence. 
 
 Beale v. Parrish, 20 N. Y. 407. 
 
 The indorser of a forged check is liable without notice. 
 
 TurnbuU v. Bowyer, 40 N. Y. 456. 
 
 As to liability of indorser of void instrument, see Bank v. 
 Loomis, 85 N. Y. 207. 
 
 Notice of non-payment where acceptance refused. 
 
 § 187. Where due notice of dishonor by non- 
 acceptance has been given, notice of a subsequent 
 dishonor by non-payment is not necessary, unless 
 in the meantime the instrument has been accepted. 
 
 See English Bills of Exchange Act, sec. 48 (2). 
 
 Effect of omission to give notice of non-acceptance. 
 
 I 188. An omission to give notice of dishonor 
 by non-acceptance does not prejudice the rights 
 
lOO THE NEGOTIABLE INSTRUMENTS LAW. 
 
 of a holder in due course subsequent to the omis- 
 sion. 
 
 See English Bills of Exchange Act, sec. 48 (i); Dunn v. 
 O'Keefe, 5 M. & S. 282. 
 
 When protest need not be made ; when must be made. 
 § 189. Where any negotiable instrument has been 
 dishonored it may be protested for non-acceptance 
 or non-payment, as the case may be ; but protest is 
 not required, except in the case of foreign bills of 
 exchange. 
 
 See English Bills of Exchange Act, sec. 51 (i), (2). 
 
 But it has usually been held that a foreign indorsed bill is 
 equivalent to a foreign bill of exchange in this respect. 
 
 Daniel, sec. 928; Carter v. Union Bank, 7 Humph. 548. 
 See preliminary note to Art. XIII, post. 
 
 ARTICLE IX. 
 DISCHARGE OF NEGOTIABLE INSTRUMENTS. 
 
 Section 200. Instrument ; how discharged. 
 
 201. When persons secondarily liable on, discharged. 
 
 202. Right of party who discharged instrument. 
 
 203. Renunciation by holder. 
 
 204. Cancellation ; unintentional ; burden of proof. 
 
 205. Alteration of instrument ; effect of. 
 
 206. What constitutes a material alteration. 
 
 Instrument ; how discharged. 
 
 § 200. A negotiable instrument is discharged : 
 
 1. By payment in due course by or on behalf of 
 the principal debtor; 
 
 2. By payment in due course by the party accom- 
 modated, where the instrument is made or accepted 
 for accommodation : 
 
DISCHARGE. lOI 
 
 3. By the intentional cancellation thereof by the 
 holder ; 
 
 4. By any other act which will discharge a simple 
 contract for the payment of money ; 
 
 5. When the principal debtor becomes the holder 
 of the instrument at or after maturity in his own 
 right. 
 
 See English Bills of Exchange Act, sees. 59 (i), (2), and 63; 
 Harmer v. Steele, 4 Exch. i ; Morley v. Culverwell, 7 M. & W. 
 182; Chambers V. Miller, 13 C. B. N. S. 125; Pollard v. Bank 
 of England, L. R. 6 Q. B. 623; Daniel on Neg. Inst., sec. 1285. 
 
 As to the discharge of an accommodation bill, see Cooke v. 
 Lister, 32 L. J. C. P. 121; Daniel on Neg. Inst., sec. 1237; 
 Murray v. Judah, 6 Cow. 484. 
 
 As to discharge by cancellation, see English Bills of Exchange 
 Act of 1882, sec. 63; Ralli v. Dennistoun, 6 Exch. 483 j Larkin 
 V. Hardinbrook, 90 N. Y. 333. 
 
 As to distinction between payment and sale, see Lancey v. 
 Clark, 64 N. Y. 209; Burr v. Smith, 21 Barb. 262. 
 
 The payor should be careful as to the title of the holder. 
 
 Bank v. Bank, i Hill, 287; Graves v. Bank, 17 N. Y. 205. 
 
 The payor is entitled to demand the surrender of the instru- 
 ment. 
 
 Crandall V. Schroeppel, i Hun, 558. 
 
 As to payment to bearer, see Merritt v. R. R., 14 Hun, 324. 
 
 When instrument is payable to order and not indorsed. 
 
 Doubleday v. Kress, 50 N. Y. 413. 
 
 Payment must be made in money. 
 
 De Mets v. Dagson, 53 N. Y. 635. 
 
 On the subject of cancellation and surrender, the Court of 
 Appeals has said : ' ' The rule seems to be well settled by the 
 authorities that where an obligee delivers up the obligation which 
 he holds against another party, with the intent and for the pur- 
 pose of discharging the debt, where there is no fraud or mistake 
 alleged or proven, that such surrender operates in law as a release 
 and discharge of the liability thereon; nor is any consideration 
 required to support such a transaction when it has been fully 
 
I02 THE NEGOTIABLE INSTRUMENTS LAW. 
 
 executed. Bouv. Law Diet., title Release; Albert's Exrs. v. 
 Ziegler's Exrs., 29 Penn. St. 50; Beach v. Endress, 51 Barb. 
 570; Doty V. Wilson, 5 Lans. to." 
 
 Larkin v. Hardinbrook, 90 N. Y. 333, 334. 
 
 Merger. 
 
 There should be added to the different methods of discharge 
 the statement that when a judgment is obtained on a note or 
 bill in accordance with the general provisions relating to con- 
 tracts, the instrument is merged in the judgment. According to 
 the common law of this State, a judgment against one of several 
 joint debtors, obtained in an action against him alone, is a bar 
 to an action against the others. 
 
 Suydam v. Barber, 18 N. Y. 468, and cases cited. 
 
 When persons secondarily liable on, discharged. 
 
 § 201. A person secondarily liable on the instru- 
 ment 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 ; 
 
 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 second- 
 arily liable is expressly reserved ; 
 
 6. By any agreement binding upon the holder to 
 extend the time of payment or to postpone the hold- 
 er's right to enforce the instrument, unless the right 
 of recourse against such party is expressly reserved. 
 
 See Suydam v. Westfall, 2 Den. 205 ; Baker v. Martin, 3 Barb. 
 634. See Osburn v. Robbins, 36 N. Y. 365 ; Putnam v. Schuy- 
 ler, 4 Hun, 168; Petrie v. Feeder, 21 Wend. 171; Bank v. 
 
DISCHARGE. IO3 
 
 Stratton, 7 Wend. 429; Halliday v. Hart, 30 N. Y. 474; Beard 
 V. Root, 4 Hun, 357; Gary v. Wight, 52 N. Y. 138; Hub- 
 bard V. Gurney, 64 N. Y. 460; Board of Education v. Fonda, 
 77 N. Y. 362; Smith v. Miller, 43 N. Y. 171, 52 N. Y. 546. 
 
 As between the parties, a judgment extinguishes the bill as to 
 the judgment-debtor, but is no satisfaction so as to discharge 
 other parties until paid. 
 
 Russell, etc. Co. v. Garpenter, 5 Hun, 162. 
 
 As to discharge by extension of time, see Pomeroy v. Tanner, 
 70 N. Y. 547; Billington v. Wagoner, 33 N. Y. 31; Ghurch v. 
 Maloy, 70 N. Y. 63. 
 
 Right of party who discharges instrument. 
 
 § 202. Where the instrument is paid by a party 
 secondarily liable thereon, it is not discharged ; but 
 the party so paying it is remitted to his former rights 
 as regards all prior parties, and he may strike out 
 his own and all subsequent indorsements, and again 
 negotiate the instrument, except : 
 
 1. Where it is payable to the order of a third per- 
 son, and has been paid by the drawer; and 
 
 2. Where it was made or accepted for accommoda- 
 tion, and has been paid by the party accommodated. 
 
 See English Bills of Exchange Act, sec. 59 (2 a, b); Williams 
 V. James, 15 Q. B. 498; Calow v. Lawrence, 15 R. R. 423; 
 St. John V. Roberts, 31 N. Y. 441. 
 
 Renunciation by holder. 
 
 § 203. The holder may expressly renounce his 
 rights against any party to the instrument, before, at 
 or after its maturity. An absolute and unconditional 
 renunciation of his rights against the principal debtor 
 made at or after the maturity of the instrument, dis- 
 charges the instrument. But a renunciation does 
 
I04 THE NEGOTIABLE INSTRUMENTS LAW 
 
 not affect the rights of a holder in due course with- 
 out notice. A renunciation must be in writing, 
 unless the instrument is delivered up to the person 
 primarily liable thereon. 
 
 See English Bills of Exchange Act, sec. 62 j Cooke v. Lister, 
 32 L. J. C. P. 121; Ingraham v. Primrose, 28 L. J. C. P. 294. 
 
 This seems to be a new rule in America. Mr. Campbell, in his 
 annotations to the English act, 4 Eng. Rul. Cas. 163, says that 
 the provision as to the renunciation in writing is in accordance 
 with the Scotch law. 
 
 Car. Collation; unintentional; burden of proof. 
 
 § 204. A cancellation made unintentionally, or 
 under a mistake, or without the authority of the 
 holder, is inoperative ; but where an instrument or 
 any signature thereon appears to have been cancelled, 
 the burden of proof lies on the party who alleges 
 that the cancellation was made unintentionally, or 
 under a mistake, or without authority. 
 
 See English Bills of Exchange Act, sec. 63 (3) ; Prince v. 
 Oriental Bank, 47 L. J. P. C. 42; Kent v. Reynolds, 8 Hun, 
 559. In effect rule laid down in Larkin v. Hardinbrook, 90 
 N. Y. 333, 334- 
 
 Alteration of instrument ; effect of. 
 
 § 205. Where a negotiable instrument is mate- 
 rially 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 altera- 
 tion and subsequent indorsers. But when an instru- 
 ment has been materially altered and is in the 
 hands of a holder in due course, not a party to the 
 
DISCHARGE. 105 
 
 alteration, he may enforce payment thereof accord- 
 ing to its original tenor. 
 
 This is English Bills of Exchange Act, sec. 64, subd. i. 
 
 In Daniel on Neg. Inst., a distinction is pointed out between 
 the English and American law of alteration. The English law 
 holds that a material alteration, though made by a stranger, 
 avoids the instrument, but the law in the United States has been 
 heretofore that an alteration by a stranger is only fatal when it 
 makes the instrument unintelligible or uncertain. 
 
 Daniel, sec. 1373. 
 
 But it has been laid down in this State that to avoid a note 
 altered in a material part it is not necessary to show a fraudulent 
 intent; the intent is only important as to whether there may be 
 a resort to the original indebtedness. 
 
 Booth V. Powers, 56 N. Y. 22. 
 
 This was a case in which the alteration was by striking out the 
 words " the order of," and putting in the words, " or bearer." 
 
 What constitutes a material alteration. 
 § 206. Any alteration which changes : 
 
 1. The date; 
 
 2. The sum payable, either for principal or 
 interest ; 
 
 3. The time or place of payment ; 
 
 4. The number or the relations of the parties ; 
 
 5. The medium or currency in which payment is 
 to be made. 
 
 Or which adds a place of payment where no place 
 of payment is specified, or any other change or addi- 
 tion which alters the effect of the instrument in any 
 respect, is a material alteration. 
 
 See English Bills of Exchange Act, sec. 64, subd. 2. 
 The question whether an alteration is material or not is one 
 of law for the court. 
 
 Crawford v. West Side Bank, 100 N. Y. 50. 
 
Io6 THE NEGOTIABLE INSTRUMENTS LAW. 
 
 Subd. I . Crawford v. West Side Bank, svpra. 
 
 Subd. 2. McGrath v. Clark, 56 N. Y. 34; Schwartz v. 
 Oppold, 74 N. Y. 307. 
 
 Subd. 3. See Daniel, sees. 1376 to 1378. 
 
 This, presumably, does not aiiect the right of a drawee in a 
 particular city to designate place of payment, within that city, 
 when this is left blank. 
 
 Troy City Bank v. Lauman, 19 N. Y. 477. See sec. 228, post. 
 
 Subd. 4. Brownell v. Winne, 29 N. Y. 400. 
 
 Where two holders of a promissory note, without the knowl- 
 edge or consent of the indorser, procured a third person to sub- 
 scribe it for the purpose of additional security, it was held not a 
 material alteration, because it did not add to the liability of the 
 indorser. 
 
 McCaughey v. Smith, 27 N. Y. 39. 
 
 Subd. 5. See Church v. Howard, 17 Hun, 5, and cases cited. 
 
 And see, on general subject of alteration, Meyer v. Huneke, 
 55 N. Y. 412; Daniel, chap. 43. 
 
 ARTICLE X. 
 BILLS OF EXCHANGE ; FORM AND INTERPRETATION. 
 
 Section 210. Bill of exchange defined. 
 
 211. Bill not an assignment of funds in hands of drawee. 
 
 212. Bill addressed to more than one drawee. 
 
 213. Inland and foreign bills of exchange. 
 
 214. When bill may be treated as promissory note. 
 
 215. Drawee in case of need. 
 
 Bill of exchange defined. 
 
 § 210. A bill of exchange is an unconditional 
 
 order in writing addressed by one person to another, 
 
 signed by the person giving it, requiring the person 
 
 to whom it is addressed to pay on demand or at a 
 
 fixed determinable future time a sum certain in 
 
 money to order or to bearer. 
 
 See English Bills of Exchange Act, sec. 3 (i). 
 
 No parti:ulai form of words is necesary to a bill of exchange, 
 
BILLS OF EXCHANGE — FORM, ETC. lO/ 
 
 provided it is made clear that it directs one person to pay a cer- 
 tain sum of money to, or to hold that sum at the disposal of 
 another. 
 
 Ellison V. CoUingridge, 9 B. C. 570. 
 
 An instrument creating liability to payment upon a contingency 
 is not a negotiable bill of exchange. Otherwise if the instrument 
 makes the same payable upon a future event, which is certain to 
 happen, although not at a certain time. 
 
 Carlos V. Fancourt, 5 T. R. 482 ; Colehan v. Cooke, Willes, 
 393; Palmer V. Pratt, i Bing. 185; Daniel on Neg. Inst., sees. 
 41, 46; Home Bank v. Drumgoole, 109 N. Y. 63; DeForrest v. 
 Frary, 6 Cow. 151; Nunez v. Dautel, 19 Wall. 560; Frank v. 
 Wessels, 64 N. Y. 158; Worth v. Case, 42 N. Y. 362. See 
 notes to section 21, ante, et seq. 
 
 Bill not an assignment of funds in hands of drawee. 
 
 § 211. A bill of itself does not operate as an 
 assignment of the funds in the hands of the drawee 
 available for the payment thereof, and the drawee is 
 not liable on the bill unless and until he accepts the 
 same. 
 
 See English Bills of Exchange Act, sec. 53 (i). This rule is 
 generally accepted. Marzetti v. Williams, r B. & A. 415; 
 Hopkinson v. Forster, L. R. 19 Eq. 74, 3 Eng. Rul. Cas. 746, 
 et seq.; ^tna B'k v. Fourth Nat. Bank, 46 N. Y. 82; Lynch v. 
 Bank, 107 N. Y. 171. 
 
 The principle is the lack of privity between drawer and payee. 
 
 But where the drawee is a banker and has funds of the drawer 
 on deposit, he is liable to an action for damages by the depositor 
 for dishonoring a check, to meet which he has sufficient funds. 
 See cases supra, and notes to section 325, post. 
 
 Bill addressed to more than one drawee. 
 
 § 212. A bill may be addressed to two or more 
 drawees jointly, whether they are partners or not ; 
 
I08 THE NEGOTIABLE INSTRUMENTS LAW. 
 
 but not to two or more drawees in the alternative 
 or in succession. 
 
 This seems to be inconsistent with sec. 27, subd. 5, ante. It 
 is also inconsistent with the English Bills of Exchange Act sec. 
 6, subd. 2. 
 
 The rule in this country has heretofore been that a bill 
 addressed to two or more parties in the alternative is not negoti- 
 able. Nor is a note payable in the alternative negotiable. 
 
 See Walrad v. Petrie, 4 Wend. 576; Noxon v. Smith, 127 
 Mass. 485, and note to section 27, ante. 
 
 But there does not seem to have been any doubt heretofore 
 that such bills or notes were valid, though non-negotiable. 
 
 Inland and foreign bills of exchange. 
 
 § 2 1 3. An inland 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. Unless the contrary appears on the 
 face of the bill, the holder may treat it as an inland 
 bill. 
 
 See English Bills of Exchange Act, sec. 4; Commercial B'k 
 V. Varnum, 49 N. Y. 269. 
 
 When bill may be treated as promissory note. 
 
 § 214. Where in a bill drawer and drawee are the 
 same person, or where the drawee is a fictitious per- 
 son, or a person not having capacity to contract, the 
 holder may treat the instrument, at his option, either 
 as a bill of exchange or a promissory note. 
 
 See English Bills of Exchange Act, sec. 5 (2) ; Miller v. 
 Thompson, 3 M. & Gr. 576; Smith v. Bellamy, 2 Stark. 223; 
 Daniel, sec. 131. See section 36, subd. 5, ante. 
 
ACCEPTANCE OF BILLS OF EXCHANGE. IO9 
 
 Drawee in case of need. 
 
 § 215. The drawer of a bill and any indorsermay 
 insert thereon the name of a person 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. Such person is called the referee in 
 case of need. It is in the option of the holder to 
 resort to the referee in case of need or not as he 
 may see fit. 
 
 See English Bills of Exchange Act, sec. 15. 
 
 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 acceptance. 
 
 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. 
 
 Acceptance ; how made, et cetera. 
 
 § 220. The acceptance of a bill is the significa- 
 tion by the drawee of his assent to the order of the 
 drawer. The acceptance must be in writing and 
 signed by the drawer. It must not express that the 
 drawee will perform his promise by any other means 
 than the pajmient of money. 
 
 Re-enacted from R. S., part II, ch. 4, t. 2, sec. 6. 
 
no THE NEGOTIABLE INSTRUMENTS LAW. 
 
 The statement that " the acceptance must be * * * 
 signed by the drawer, ' ' is prima facie erroneous and not the 
 intention of the legislature. The acceptance, of course, must be 
 signed by the drawee. 
 
 See English Bills of Exchange Act, sec. 17. 
 
 No one but the drawee, by writing his name upon the bill, can, 
 generally speaking, thereby render himself liable to the drawer 
 on the bill. 
 
 Steele v. M'Kinlay, 5 App. Cas. 754. 
 
 Except in cases of acceptance for honor, no one can accept 
 a bill except the party on whom it is drawn or his authorized 
 agent. 
 
 Daniel on Neg. Inst., sec. 485; Hascall v. Association, 5 
 Hun, 152. 
 
 Formerly acceptance could be made orally. 
 
 Johnson v. Clark, 39 N. Y. 216. See Bank v. Wetherald, 
 36 N. Y. 335; Bank v. Howard, 40 N. Y. Super. 15. 
 
 The acceptor cannot deny that he was in funds when suit is 
 brought by the holder of the bill. 
 
 Heuertematte v. Morris, loi N. Y. 63. See, also, Wight v. 
 Bank, 64 N. Y. 316. 
 
 Holder entitled to acceptance on face of bill. 
 
 § 221. 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. 
 
 Re-enacted from R. S., part. II, ch. 4, t. 2, sec. 9. 
 
 Acceptance by separate instrument. 
 
 § 222. 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 whom it is shown and 
 
 who, on the faith thereof, receives the bill for value. 
 
 Re-enacted from R. S. part II, ch. 4, t. 2, sec. 7. 
 For same rule, see Greele v. Parker, 5 Wend. 414; Bank v. 
 Howard, 40 N. Y. Super. 15 ; Fairchild v. Feltman, 32 Hun, 398. 
 
ACCEPTANCE OF BILLS OF EXCHANGE. Ill 
 
 Promise to accept; when equivalent to acceptance. 
 
 § 223. An unconditional promise in writing to 
 accept a bill before it is drawn is deemed an actual 
 acceptance in favor of every person who, upon the 
 faith thereof, receives the bill for value. 
 
 Re-enacted from R. S., part II, ch. 4, t. 2, sec. 8. 
 
 Time allowed drawee to accept. 
 
 I 224. The drawee is allowed twenty-four hours 
 after presentment in which to decide whether or not 
 he will accept the bill ; but the acceptance if given 
 dates as of the day of presentation. 
 
 See Bank v. Bank, 8 Barb. 396, affirmed 7 N. Y. 459; 
 Daniel, sec. 492. 
 
 Liability of drawee retaining or destroying bill. 
 
 § 225. Where a drawee to whom a bill is deliv- 
 ered for acceptance destroys the same, or refuses 
 within twenty-four hours after such delivery, or within 
 such other period as the holder may allow, to return 
 the bill accepted or non-accepted to the holder, he 
 will be deemed to have accepted the same. 
 
 Re-enacted from R. S., part II, ch. 4, t. 2, sec. 11; Matte- 
 son V. Moulton, II Hun, 268; Gates v. Erie, 4 Hun, 96. 
 
 Acceptance of incomplete bill. 
 
 § 226. A bill may be accepted before it has been 
 signed by the drawer, or while 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 
 
112 THE NEGOTIABLE INSTRUMENTS LAW. 
 
 non-acceptance and the drawee subsequently accepts 
 it, the holder, in the absence of any different agree- 
 ment, is entitled to have the bill accepted as of the 
 date of the first presentment. 
 
 See English Bills of Exchange Act, sec. i8; Bank v. Went- 
 worth, 49 L. J. Ex. 657; Mutford v. Walcot, i Lord Raym. 
 574; Daniel on Neg. Inst. sees. 490,491; Bank v. Livingston, 
 33 Barb. 458; Bank v. Ellery, 34 Barb. 630; Berry v. Rob- 
 inson, 9 Johns. 121; Leavitt v. Putnam, 3 N. Y. 494. 
 
 Kinds of acceptances. 
 
 § 227. An acceptance is either general or quali- 
 fied. A general acceptance assents without qualifi- 
 cation to the order of the drawer. A qualified 
 acceptance in express terms varies the effect of the 
 bill as drawn. 
 
 See English Bills of Exchange Act, sec. 19. 
 
 What constitutes a general acceptancy.* 
 
 § 228. 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. 
 
 See English Bills of Exchange Act, sec. 19 (2c); Rowe v. 
 Young, 2 B. & B. 165; Hills v. Place, 48 N. Y. 520; Cox v. 
 Bank, 100 U. S. 714. 
 
 Qualified acceptance. 
 
 § 229. An acceptance is qualified, which is: 
 I. Conditional, that is to say, which makes pay- 
 ment by the acceptor dependent on the fulfilment 
 of a condition therein stated ; 
 
 * So in original. 
 
ACCEPTANCE OF BILLS OF EXCHANGE. II3 
 
 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 part 
 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. 
 
 See English Bills of Exchange Act, sec. 19 (2); Bank v. 
 Fairman Co., 31 Barb. 403; Shaver v. W. U. Tel. Co., 57 
 N. Y. 459; Julian v. Shobrooke, 2 Wils. 9; Smith v. Vertue, 
 30 L. J. C. P. 56; Meyer v. Decroix, 61 L. J. Q. B. 205; 
 Bank V. Lauman, 19 N. Y. 477. 
 
 Rights of parties as to qualified acceptance. 
 
 § 230. The holder may refuse to take a qualified 
 acceptance, and if he does not obtain an unqualified 
 acceptance, he may treat the bill as dishonored by 
 non-acceptance. Where a qualified acceptance is 
 taken, the drawer and indorsers are discharged from 
 liability on the bill, unless they have expressly or 
 impliedly authorized the holder to take a qualified 
 acceptance, or subsequently assent thereto. When 
 the drawer or indorser receives notice of a qualified 
 acceptance, he must within a reasonable time express 
 his dissent to the holder, or he will be deemed to 
 have assented thereto. 
 
 See English Bills of Exchange Act, sec. 44. 
 Dan., eh. 18, sec. 5. 
 
 8 
 
114 THE NEGOTIABLE INSTRUMENTS LAW. 
 
 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. 
 ?44. 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. 
 
 When presentment for acceptance must be made. 
 
 § 240. 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 instru- 
 ment; or 
 
 2. Where the bill expressly stipulates that it shall 
 be presented for acceptance ; or 
 
 3. Where the bill is drawn payable elsewhere than 
 at the residence or place of business of the drawee. 
 
 In no other case is presentment for acceptance 
 necessary in order to render any party to the bill 
 liable. 
 
 See English Bills of Exchange Act, sec. 39 ; Ramchum Mul- 
 lickv. Luchmeechund Radakissen, 9 Moore's P. C. 46; Allen 
 V. Suydam, 20 Wend. 321; Halstead v. Mayor, 5 Barb. 218; 
 Bull V. Bank, 115 U. S. 373, and cases cited. 
 
 In other words, instruments payable on demand, or at sight, or 
 on a day certain need not be presented for acceptance. 
 
 The rule in subd. 3 seems to be intended to settle a doubtful 
 point. 
 
PRESENTMENT OF BILLS OF EXCHANGE, ETC. II5 
 
 When failure to present releases drawer and indorser. 
 
 § 241. Except as herein otherwise provided, the 
 holder of a bill which is required by the next pre- 
 ceding section to be presented for acceptance must 
 either present it for acceptance or negotiate it within 
 a reasonable time. If he fails to do so, the drawer 
 and all indorsers are discharged. 
 
 See English Bills of Exchange Act, sec. 40 ; Ramchum Mullick 
 V. Luchmeechund Radakissen, 9 Moore's P. C. 46; Bell v. 
 Bank, 115 U. S. 379; Allen v. Suydam, 20 Wend. 327; Smith 
 V. Miller 43 N. Y. 171, 52 N. Y. 546. 
 
 The provision in the alternative providing that the holder must 
 either present for acceptance or negotiate, is thought by Mr. 
 Campbell to be new. 
 
 4 Eng. Rul. Cas. 466. 
 
 But a bill of exchange drawn in Antigua, upon merchants in 
 London, dated July i8th, 181 7, was put into circulation and 
 passed into several hands before it was presented for acceptance, 
 January 16, 181 8. It was held that under the circumstances 
 there was no laches in presentment for acceptance. 
 
 Gowen v. Jackson, 20 Johns. 176. 
 
 Apparently holding the principle of the text as to putting in 
 circulation, see Robinson v. Ames, 20 Johns. 146. 
 
 It would seem that the rule leaves the matter in a somewhat 
 unsatisfactory state. If the drawee were not injured by the delay, 
 the rule would be, of course, equitable. 
 
 Otherwise apparently not. It is difficult to discover what 
 would be a reasonable time for circulation before presentment. 
 
 See opinion of Story, J., in Wallace v. Agry, 4 Mason, 333, 
 and discussion in Daniel, sees. 469, 470, 471. 
 
 Presentment ; how made. 
 
 § 242. Presentment for acceptance must be made 
 by or on behalf of the holder at a reasonable hour, 
 on a business day, and before the bill is overdue, to 
 
Il6 THE NEGOTIABLE INSTRUMENTS LAW. 
 
 the drawer * or some person authorized to accept or 
 refuse acceptance on his behalf ; and 
 
 1. Where a bill is addressed to two or more 
 drawees who are not partners, presentment must be 
 made to them all, unless one has authority to accept 
 or refuse acceptance for all, in which case present- 
 ment may be made to him only ; 
 
 2. Where the drawee is dead, presentment may be 
 made to his personal representative ; 
 
 3. Where the drawee has been adjudged a bank- 
 rupt or an insolvent, or has made an assignment for 
 the benefit of creditors, presentment may be made 
 to him or to his trustee or assignee. 
 
 See English Bills of Exchange Act, sec. 41 (i); Parker v. 
 Gordon, 8 R. R. 646; Bank v. Smith, 18 Johns. 230; Gates v. 
 Beecher, 60 N. Y. 523; Holtz v. Boppe, 37 N. Y. 634. 
 
 Where a note has been made by a partnership which has sub- 
 sequently gone into bankruptcy, presentment to one of the part- 
 ners is sufficient. 
 
 See Gates v. Beecher, 60 N. Y. 518, and see sec. 170, ante. 
 
 Subd. 3 of the section seems to settle a doubtful point. It is 
 probable that heretofore presentment to either the assignee or 
 the insolvent would have been sufficient. 
 
 See notes to sec. 172, ante. 
 
 On what da^s presentment may be made. 
 
 § 243. A bill may be presented for acceptance on 
 any day on which negotiable instruments may be 
 presented for payment under the provisions of sec- 
 tions seventy-two and eighty-five of this act. When 
 Saturday is not otherwise a holiday, presentment for 
 
 *So in original, "drawee" probably meant. 
 
PRESENTMENT OF BILLS OF EXCHANGE, ETC. 11/ 
 
 acceptance may be made before twelve o'clock noon 
 on that day. 
 
 The reference to preceding sections in the text is erroneous. 
 Section 72 has only reference to the effect of an instrument 
 drawn to the cashier or other fiscal officer of a bank or corpora- 
 tion and there is no section 85. The intended reference is 
 probably to section 145. 
 
 Presentment where time is insufficient. 
 
 § 244, Where the holder of a bill drawn payable 
 elsewhere than at the place of business or the resi- 
 dence of the drawee has not time, with the exercise 
 of reasonable diligence, to present the bill for accept- 
 ance before presenting it for payment on the day 
 that it falls due, the delay caused by presenting the 
 bill for acceptance before presenting it for payment 
 is excused and does not discharge the drawers and 
 indorsers. 
 
 See English Bills of Exchange Att, sec. 39 (4). Seems to 
 be new. But see Aymar v. Beers, 7 Cow. 705. 
 
 Reasonable time usually a question of law under the circum- 
 stances of each case. Id. 
 
 Where presentment is excused. 
 
 § 245. Presentment for acceptance is excused and 
 a bill may be treated as dishonored by non-accept- 
 ance in either of the following cases: 
 
 1. Where the drawee is dead, 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 dili- 
 gence, presentment cannot be made ; 
 
Il8 THE NEGOTIABLE INSTRUMENTS LAW. 
 
 3. Where, although presentment has been irregu- 
 lar, acceptance has been refused on some other 
 ground. 
 
 See English Bills of Exchange Act, sec. 41 (2); Aymar v. 
 Beers, 7 Cow. 705. 
 
 Rule made analogous to cases where presentment for payment 
 excused. 
 
 Section 142, ante. 
 
 When dishonored by non-acceptance. 
 
 § 246. 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. 
 
 See English Bills of Exchange Act, sec. 43 (i). 
 
 Duty of holder where bill not accepted. 
 
 § 247. Where a bill is duly presented for accept- 
 ance and is not accepted within the prescribed time, 
 the person presenting it must treat the bill as dis- 
 honored by non-acceptance or he loses the right of 
 recourse against the drawer and indorsers. 
 
 See English Bills of Exchange Act, sec. 42; Bank v. Bank, 40 
 L. J. C. P. 28, Dan., sees. 449, 450. 
 
 Rights of holder where bill not accepted. 
 
 § 248. When a bill is dishonored by non-accept- 
 ance, an immediate right of recourse against the 
 
PROTEST OF BILLS OF EXCHANGE. II9 
 
 drawers and indorsers accrues to the holder and no 
 presentment for payment is necessary. 
 
 See English Bills of Exchange Act, sec. 43 (2) ; Whitehead 
 V. Walker, 11 L. J. Ex. 168, Dan., sees. 449, 450. 
 
 ARTICLE XIII. 
 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-payment. 
 
 266. Protest before maturity where acceptor insolvent. 
 
 267. When protest dispensed with. 
 
 268. Protest ; where bill is lost, et cetera. 
 
 In what cases protest necessary. 
 
 § 260. Where a foreign bill appearing on its face 
 to be such is dishonored by non-acceptance, it must 
 be duly protested for non-acceptance, and where 
 such a bill which has not previously been dishon- 
 ored by non-acceptance is dishonored by non-pay- 
 ment, it must be duly protested for non-payment. 
 If it is not so protested, the drawer and indorsers 
 are discharged. Where a bill does not appear on 
 its face to be a foreign bill, protest thereof in case 
 of dishonor is unnecessary. 
 
 Protest is a solemn declaration, written by a notary public 
 under a fair copy of a bill or note, stating that acceptance has 
 been refused, the reasons, if any, therefor, and that the bill or 
 note has been protested. 
 
 Protest, strictly speaking, is absolutely necessary only in case 
 of foreign bills, i. e., while it is necessary to give notice of dis- 
 
120 THE NEGOTIABLE INSTRUMENTS LAW. 
 
 honor pf all negotiable paper, this need be done before a notar)' 
 only in case of foreign bills. 
 
 But by statute (section 189, ante, re-enacting, in substance, 
 in this respect, laws 1835, chapter 141, repealed by this act), 
 protest is authorized in the case of all negotiable instruments, and 
 it is the usual way to give notice of dishonor. This method of 
 notice has great advantages because by statute (Code Civ. Proc, 
 sacs. 923-926), the certificate of the notary is v&na]i\y prima 
 facie evidence. As to protesting notes of banks, see Banking 
 law, sec. 72. The form or contents of a protest is the time and 
 place of presentment, the demand of payment, the ifact and 
 manner of presentment, the fact of dishonor, the name of the 
 parties by whom and to whom presentment was made. What 
 is called the extension of protest is the completion of the instru- 
 ment from the minutes or initial protest noted down on the day 
 of dishonor. A protest is the formal document; notice of pro- 
 test is simply notice that the instrument has been dishonored and 
 protested. Protest for better security is where the holder pro- 
 tests when the drawee of the bill of exchange has absconded 
 before the day of maturity or where the drawer or acceptor of a 
 foreign bill has become insolvent. It is not necessary in order 
 to bind the drawer or indorser, and seems to be principally used 
 to enable drawer and indorser to provide for payment when due. 
 
 Chitty on Bills, p. 383. 
 
 By the laws of 1835, chap. 141, provision was made for 
 method of protest in various cases and service by mail. This act 
 has been repealed by the present act. 
 
 See art. 19, post. 
 
 But the provisions have generally been covered by art. 8, ante, 
 on Notice of Dishonor. It is to be presumed that the authors 
 of this act intended to make those provisions apphcable to send- 
 ing notice of protest. 
 
 Protest ; how made. 
 
 § 261. The protest must be annexed to the bill, 
 or must contain a copy thereof, and must be under 
 the hand and seal of the notary making it, and must 
 specify : 
 
 I. The time and place of presentment; 
 
PROTESTS OF BILLS OF EXCHANGE. 121 
 
 2. The fact that presentment was made and the 
 manner thereof; 
 
 3. The cause or reason for protesting the bill ; 
 
 4. The demand made and the answer given, if any, 
 or the fact that the drawee or acceptor could not be 
 found. 
 
 See note to sec. 260, ante. 
 
 Protest ; by whom made. 
 
 § 262. Protest may be made by: 
 
 1. A notary public; or 
 
 2. By any respectable resident of the place where 
 the bill is dishonored, in the presence of two or more 
 credible witnesses. 
 
 Generally speaking, the protest heretofore must have been by 
 a notary, and by the same notary who presented and noted the 
 bill, but the second subdivision is taken from the English law, 
 and is perhaps declaratory of the law in this country. 
 
 Daniel, sec. 934a. 
 
 Protest ; when to be made. 
 
 § 263. When a bill is protested, such protest must 
 
 be made on the day of its dishonor, 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. 
 
 This and the subsequent sections are declaratory of the law. 
 See note to sec. 5 1 . 
 
 Protest ; where made. 
 
 § 264. A bill must be protested at the place where 
 it is dishonored, except that when a bill drawn pay- 
 
122 THE NEGOTIABLE INSTRUMENTS LAW. 
 
 able at the place of business or residence of some 
 person other than the drawee, has been dishonored 
 by non-a ceptance, it must be protested for non-pay- 
 ment at the place where it is expressed to be payable, 
 and no further presentment for payment to, or demand 
 on, the drawee is necessary. 
 
 Protest both for non-acceptance and non-payment. 
 
 § 265. A bill which has been protested for non- 
 acceptance may be subsequently protested for non- 
 payment. 
 
 Protest before maturity where acceptor insolvent. 
 
 § 266. 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. 
 
 See note to sec. 260, ante. 
 
 When protest dispensed with. 
 
 § 267. Protest is dispensed with by any circum- 
 stances which would dispense with notice of dis- 
 honor. Delay in noting or protesting is excused 
 when delay is caused by circumstances beyond the 
 control of the holder and not imputable to his default, 
 misconduct, or negligence. When the cause of 
 delay ceases to operate, the bill must be noted or 
 protested with reasona.ble diligence. 
 
 This is taken from the Enghsh Bills of Exchange Act, sec. 
 51, subd. 9. 
 
ACCEPTANCE OF BILLS OF EXCHANGE FOR HONOR. 123 
 
 Generally an excuse for non-protest will be such as arises from 
 circumstances not affecting the individual particularly, but hav- 
 ing a general influence over the whole community so as to prevent 
 and impede the transaction of business, as, for instance, the 
 breaking out of a general war, or the prevalence of a malignant 
 epidemic, or an overwhelming calamity. 
 
 For a dicussion on this subject, see Daniel, sec. 730. 
 
 Protest where bill is lost, et cetera. 
 
 § 268. 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 par- 
 ticulars thereof. 
 
 This is quoted directly from the English Bills of Exchange 
 Act, sec. 51, subd. 8. 
 
 ARTICLE XIV. 
 ACCEPTANCE OF BILLS OF EXCHANGE FOR HONOR. 
 
 Section 280. When bill may be accepted for honor. 
 
 281. Acceptance for honor ; how made. 
 
 282. When deemed to be an acceptance for honor of the 
 
 drawer. 
 
 283. Liability of acceptor for honor. 
 
 284. Agreement of 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 excused. 
 
 289. Dishonor of bill by acceptor for honor. 
 
 Note. — An acceptance supra protest, or for honor, is when, 
 upon the refusal of the original drawee to accept the bill, a 
 stranger accepts for the honor of some one of the parties thereto. 
 He declares before a notary public that he accepts the protested 
 bill and that he will pay it at the appointed time; he then sub- 
 scribes his name with the words, " accepted supra protest for the 
 
124 THE NEGOTIABLE INSTRUMENTS LAW. 
 
 honor of A. B." The nature of the acceptor's undertaking in 
 that respect is like an indorser, to the effect that if the drawee 
 does not pay the bill when again presented to him, he will pay 
 upon maturity. Any third person may accept supra protest; 
 even the drawee, unless he is bound to accept the bill in the first 
 instance in good faith for the benefit of all parties. The holder 
 of a bill accepted supra protest should again protest it for non- 
 payment and then present it to the acceptor supra protest; if he 
 refuses to pay, there must be another formal protest stating pre- 
 sentment to original drawee and his non-payment, the protest of 
 the bill and its presentment to the acceptor supra protest, the 
 demand of payment from him and protest for his non-payment. 
 A notice must be forthwith given to the drawer and the indorsers. 
 The acceptor supra protest, it is said, does not admit the genu- 
 ineness of the signature of any party, and, therefore, he may 
 recover money paid i£ the bills turn out to be forgery. This is 
 not presumed to be so if the bill has passed into the hands of a 
 bona fide purchaser. 
 
 The subsequent sections are taken from the English Bills of 
 Exchange Act, sees. 65 to 68. 
 
 When bill may be accepted for honor. 
 
 § 280. Where a bill of exchange has been pro- 
 tested for dishonor by non-acceptance or protested 
 for better security and is not overdue, any person 
 not being a party already liable thereon, may, with 
 the 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 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 accept- 
 ance by a different person for the honor of another 
 party. 
 
ACCEPTANCE OF BILLS OF EXCHANGE FOR HONOR. 125 
 
 Acceptance for honor ; how made. 
 
 § 281. An acceptance for honor supra protest 
 must be in writing and indicate that it is an accept- 
 ance for honor, and must be signed by the acceptor 
 for honor. 
 
 When deemed to be an acceptance for honor of the 
 drawer. 
 § 282. 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. 
 
 Liability of acceptor for honor. 
 
 I 283. The acceptor for honor is liable to the 
 holder and all parties to the bill subsequent to the 
 party for whose honbr he has accepted. 
 Agreement of acceptor for honor. 
 
 § 284. The acceptor for honor by such acceptance 
 engages that he will on due presentment pay the 
 bill according to the terms of his acceptance, pro- 
 vided it shall not have been paid by the drawee, and 
 provided also that it shall have been duly presented 
 for payment and protested for non-payment and 
 notice of dishonor given to him. 
 
 Maturity of bill payable after sight ; accepted for 
 honor. 
 
 § 285. Where a bill payable after sight is accepted' 
 for honor, its maturity is calculated from the date of 
 the noting for non-acceptance and not from the date 
 of the acceptance for honor. 
 
126 THE NEGOTIABLE INSTRUMENTS LAW. 
 
 Protest of bill accepted for honor, et cetera. 
 
 § 286. 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. 
 
 Presentment for payment to acceptor for honor ; how 
 made 
 
 § 287. 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 pre- 
 sented 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 four.* 
 
 When delay in making presentment is excused. 
 
 § 288. The provisions of section eighty-one apply 
 where there is delay in making presentment to the 
 acceptor for honor or referee in case of need.t 
 
 Dishonor of bill by acceptor for honor. 
 
 § 289. When the bill is dishonored by the acceptor 
 for honor it must be protested for non-payment by 
 him. 
 
 *So in original. There is no section 104, probably means sec. 175. 
 f So in original. Probably means sec. 141 . 
 
PAYMENT OF BILLS OF EXCHANGE FOR HONOR. 1 27 
 
 ARTICLE XV. 
 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. 
 
 Note. — Contrary to the general rule as to voluntary payments 
 by a stranger without request of the debtor, a stranger may pay 
 a negotiable bill of exchange for the honor of any one of the 
 parties and become thereby subrogated to the rights of the holder 
 to the extent that he may recover against the person for whose 
 honor he pays, and all parties prior thereto. He is also subro- 
 gated to the rights and remedies of the party for whose honor he 
 pays, but this right of payment supra protest is not extended to 
 promissory notes. 
 
 These provisions are taken also, quite literally, from the English 
 Bills of Exchange Act, sec. 68, and are, presumably, for the most 
 part, declaratory of the law. 
 
 Who may make payment .or honor. 
 
 § 300. Where a bill has been protested for non- 
 payment, any person may intervene and pay it 
 supra protest for the honor of any person liable 
 thereon or for the honor of the person for whose 
 account it was drawn. 
 
 Payment for honor; how made. 
 
 § 301. The payment for honor supra protest, in 
 order to operate as such and not as a mere volun- 
 tary payment, must be attested by a notarial act of 
 
128 THE NEGOTIABLE INSTRUMENTS LAW. 
 
 honor, which may be appended to the protest or 
 form an extension to it. 
 
 Declaration before payment for honor. 
 
 § 302. The notarial act of honor must be founded 
 on a declaration made by the payer for honor or by 
 his agent in that behalf declaring his intention to 
 pay the bill for honor and for whose honor he pays. 
 
 Preference of parties offering to pay for honor. 
 
 § 303. 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 preference. 
 
 Effect on subsequent parties where bill is paid for 
 honor. 
 
 § 304. Where a bill has been paid for honor, all 
 parties subsequent to the party for whose honor it is 
 paid are discharged, but the payor for honor is sub- 
 rogated 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. 
 
 Where holder refuses to receive payment supra 
 protest. 
 
 § 305. Where the holder of a bill refuses to receive 
 payment supra protest, he loses his right of recourse 
 against any party who would have been discharged 
 by such payment. 
 
BILLS IN A SET. I29 
 
 Rights of payer for honor. 
 
 § 306. 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. 
 
 The following provisions are taken from the English Bills of 
 Exchange Act, sec. 71. 
 
 In the case of international bills it is, or has been, usual to 
 issue them in sets of threes, each being the counterpart of the 
 others, except that there is a clause inserted that that particular 
 bill shall be paid in case the others remain unpaid. This is done 
 for the purpose of security, and the bills are usually sent by 
 different mails. 
 
 Bills in sets constitute one bill. 
 
 § 310. 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. 
 
 Rights of holders where different parts are negotiated. 
 
 § 311. 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 
 9 
 
I30 THE NEGOTIABLE INSTRUMENTS LAW. 
 
 the true owner of the bill. But nothing in this sec- 
 tion affects the rights of a person who in due course 
 accepts or pays the part first presented to him. 
 
 Liability of holder who indorses two or more parts 
 of a set to different persons. 
 
 § 312. 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. 
 
 Acceptance of bills drawn in sets 
 
 § 313. The acceptance 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 sepa- 
 rate bill. 
 
 Payment by acceptor of bills drawn in sets. 
 
 § 314. When the acceptor of a bill drawn in a set 
 pays it without requiring the part bearing his accept- 
 ance to be delivered 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 thereon. 
 
 Effect of discharging one of a set. 
 
 § 315. Except as herein otherwise provided, where 
 any one part of a bill drawn in a set is discharged by 
 payment or otherwise the whole bill is discharged. 
 
PROMISSORY NOTES AND CHECKS. I31 
 
 ARTICLE XVII. 
 
 PROMISSORY NOTES AND CHECKS. 
 
 Section 320. Promissory note defined. 
 
 321. Checlc defined. 
 
 322. Within what time a check must be presented. 
 
 323. Certification of check; effect of. 
 
 324. Effect where holder of check procures it to be certified. 
 
 325. When check operates as an assignment. 
 
 Promissory note defined. 
 
 I 320. A negotiable promissory note within the 
 meaning of this act is an unconditional promise in 
 writing made by one person to another signed by 
 the maker engaging to pay on demand or at a fixed 
 or determinable future time, a sum certain in money 
 to order or to bearer. Where a note is drawn to 
 the maker's own order, it is not complete until 
 indorsed by him. 
 
 See notes to sec. 20, ante. 
 
 Check defined. 
 
 § 321. A check is a bill of exchange drawn on a 
 bank payable on demand. Except as herein other- 
 wise provided, the provisions of this act applicable 
 to a bill of exchange payable on demand apply to a 
 check. 
 
 See notes to sec. 130, ante. 
 
 Within what time a check must be presented. 
 
 I 322. A check must be presented for payment 
 within a reasonable time after its issue or the drawei 
 
1^2 THE NEGOTIABLE INSTRUMENTS LAW. 
 
 will be discharged from liability thereon to the extent 
 of the loss caused by the delay. 
 See notes to sec. 130, ante. 
 
 Certification of check ; effect of. 
 
 § 323. Where a check is certified by the bank on 
 which it is drawn the certificate is equivalent to an 
 acceptance. 
 
 See notes to sec. 324. 
 
 Effect where the holder of check procures it to be 
 certified. 
 
 § 324. Where the holder of a check procures it to 
 be accepted or certified the drawer and all indorsers 
 are discharged from liability thereon. 
 
 The moment the check is certified the funds cease to be under 
 the control of the original depositor and pass under the control 
 of the person who secures the certification of the check drawn 
 in his favor. 
 
 First Nat'l Bank of Jersey City v. Leach, 52 N. Y. 350; 
 Thomson v. Bank of British N. A., 82 N. Y. i. 
 
 The certifying bank becomes liable to payment and cannot 
 defeat the right of payment of the holder upon the ground that 
 the drawer has no funds upon deposit. The bank certifying the 
 check contracts that it will retain and apply the money for pay- 
 ment if the check is indorsed by the payee, but it is not liable to 
 one taking without such indorsement even if he is a bona fide 
 holder for value. 
 
 Goshen Nat'l Bank v. Bingham, 118 N. Y. 349. 
 
 The certification of the check is charged against the drawer, 
 the remedy of the holder being against the bank, unless the cer- 
 tification is obtained at the instance of the drawer, in which case, 
 if he gets it certified and puts it in circulation, he is still liable in 
 case the bank does not pay. 
 
 Minot v. Russ, 156 Mass. 458. 
 
PROMISSORY NOTES AND CHECKS. 1 33 
 
 A bank, by certifying a check in the usual form, simply certi- 
 fies to the genuineness of the signature of the drawer and that 
 he has funds sufficient to meet it, and engages that those funds 
 will not be withdrawn from the bank by him. It does not war- 
 rant the genuineness of the body of the check as to the payee 
 or amount; accordingly, when a bank certifies a check which 
 has been altered as to the date, or the name of the payee, or 
 by raising the amount and subsequently pays the same to a bona 
 fide holder, it has been held, that the certifying bank could 
 recover the amount paid as money paid by mistake. 
 
 Marine Nat'l Bank v. Nat'l City Bank, 59 N. Y. 67. 
 
 But as against the drawer, where the check has been altered 
 in a material point without his consent and the bank either certi- 
 fies or pays the check, the bank is liable. 
 
 Crawford v. West Side Bank, 100 N. Y. 50. 
 
 But the above rule should be qualified as follows: Where 
 money is paid on a raised check or either party being in fault it 
 may be recovered back, there being no consideration; if either 
 party has been negligent, such party must bear the loss. 
 
 Espy v. First Nat'l Bank of Cincinnati, 85 U. S. 604. 
 
 When check operates as an assignment. 
 
 § 325. 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. 
 
 This is undoubtedly a statement of the law, but it is also true 
 that a bank which has received the money of a depositor is bound 
 to honor his checks to the amount of his funds, and is liable in 
 damages to the depositor for not honoring his check, where it 
 has sufficient funds to meet such check, but the duty of the bank 
 to honor the check where there are sufficient funds would, of 
 course, cease upon a countermand of the check or notice of the 
 death of the drawer. 
 
 Marzetti v. Williams, i B. & A. 415; Rogerson v. Ladbrok, 
 I Bing. 93 and see notes to section 211, ante, and cases cited. 
 
134 THE NEGOTIABLE INSTRUMENTS LAW. 
 
 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 cons!d> 
 
 eration. 
 
 332. How negotiable bonds are made non-negotiable. 
 
 Negotiable instruments given for patent rights. 
 
 I 330. A promissory note or other negotiable 
 instrument, the consideration of which consists 
 wholly or partly of the right to make, use or sell any 
 invention claimed or represented by the vendor at 
 the time of sale to be patented, must contain the 
 words " given for a patent right " prominently and 
 legibly written or printed on the face of such note 
 or instrument above the signature thereto ; and such 
 note or instrument in the hands of any purchaser or 
 holder is subject to the same defenses as in the hand* 
 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. 
 
 This, in substance, is Laws 1877, chap. 65, sec. i. The last 
 clause referring to the purchase-price or the use of a patented 
 article, is new. 
 
 Negotiable instrument for a speculative consideration- 
 
 § 331. 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 
 
NOTES GIVEN FOR A SPECULATIVE CONSIDERATION. 1 35 
 
 market value of the same product at the time, in 
 the locaHty, or of the membership 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 pro- 
 duct at a price greater by four times than the mar- 
 ket value of the same product at the time in the 
 locality, the words, "given for a speculative consid- 
 eration," or other words clearly showing the nature 
 of the consideration, must be prominently and legi- 
 bly written or printed on the face of such note or 
 instrument above the signature thereof; and such 
 note or instrument, in the hands of any purchaser 
 or holder, is subject to the same defenses as in the 
 hands of the original owner or holder. 
 
 This is, in substance, Laws 1891, chap. 262, sec. i. 
 
 How negotiable bonds are made non-negotiable. 
 
 § 332. The owner or holder of any corporate or 
 municipal bond or obligation (except such as are 
 designated to circulate as money, payable to bearer), 
 heretofore or hereafter issued in and payable in this 
 State, but not registered in pursuance of any State 
 law, may make such bond or obligation, or the inter- 
 est coupon accompanying the same, non-negotiable, 
 by subscribing his name to a statement indorsed 
 thereon, that such bond, obligation or coupon is his 
 property; and thereon the principal sum therein 
 mentioned is payable only to such owner or holder, 
 or his legal representatives or assigns, unless such 
 
136 THE NEGOTIABLE INSTRUMENTS LAW. 
 
 bond, obligation or coupon be transferred by indorse- 
 ment in blank, or payable to bearer, or to order, with 
 the addition of the assignor's place of residence. 
 
 This, in substance, re-enacts the provisions of the Laws of 1870, 
 chap. 438, and Laws 1873, chap. 595. 
 
 ARTICLE XIX. 
 
 LAWS REPEALED ; WHEN TO TAKE EFFECT. 
 
 Section 340. Laws repealed. 
 
 341. When to take effect. 
 
 Laws repealed. 
 
 § 340. The laws or parts thereof specified in the 
 schedule hereto annexed are hereby repealed. 
 
 When to take effect. 
 
 § 341. This chapter shall take effect on the first 
 day of October, eighteen hundred and ninety-seven. 
 
 SCHEDULE OF LAWS REPEALED. 
 
 Revised Statutes. _ Sections, Subject matter. 
 
 R. S., pt. II, ch. 4, tit. II All Bills and notes. 
 
 Subject matter. 
 
 Notice of protest ; how given. 
 
 Commercial paper. 
 
 Protest of foreign bills, etc. 
 
 Negotiability of corporate bonds , how 
 limited. 
 
 Negotiable bonds ; how made non-nego- 
 tiable. 
 
 Negotiable bonds ; how made negotiable. 
 
 Negotiable instruments given for patent 
 rights. 
 
 Effect of holidays upon payment of com- 
 mercial paper. 
 
 One hundredth anniversary of the in- 
 auguration of George Washington. 
 
 Negotiable instruments given for a specu- 
 lative consideration. 
 
 Days of grace abolished. 
 
 Laws of. 
 
 Chapter. 
 
 Sections. 
 
 1835- •• 
 1857... 
 1865... 
 1870. . . 
 
 141.... 
 
 416 
 
 309.... 
 438.... 
 
 AH.... 
 All.... 
 All.... 
 All.... 
 
 1871. .. 
 
 84.... 
 
 All.... 
 
 1873... 
 1877... 
 
 595---. 
 65.... 
 
 All. . . . 
 1,3.... 
 
 1887... 
 
 461. . ,. 
 
 All.... 
 
 1888... 
 
 229. . . . 
 
 All. . . . 
 
 1891... 
 
 262.... 
 
 I 
 
 1894. . . 
 
 607. . . . 
 
 All. . . . 
 
APPENDIX "A." 
 Chapter 613, Laws of 1897. 
 
 Sections of Penal Code, Relative to Violations of the Com- 
 mercial Paper Law. 
 
 Became a. law May 19, 1897. 
 
 Section i . The penal code is hereby amended by inserting at 
 the end of title twelve the following new sections : 
 
 Sec. 384m. Notes given for patent rights. — A person who 
 takes, sells or transfers a promissory note or other negotiable 
 instrument, knowing the consideration of such note or instru- 
 ment 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 having the words " given 
 for a patent right ' ' written or printed legibly and prominently on 
 the face of such note or instrument above the signature thereto, 
 is guilty of a misdemeanor. 
 
 Sec. 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 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 consideration shall be in whole or in part, mem- 
 bership 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, without having the words " given for a speculative con- 
 sideration," or other words clearly showing the nature of the 
 consideration prominently and legibly written or printed on the 
 face of such note or instrument above the signature thereof is 
 guilty of a misdemeanor. 
 
 Sec. 2. Section two of chapter sixty-five of the laws of eighteen 
 hundred and seventy-seven, and section two of chapter two hun- 
 dred and sixty-two of the laws of eighteen hundred and ninety- 
 one, are hereby repealed. 
 
 Sec. 3. This act shall take effect the first day of October, 
 eighteen hundred and ninety-seven. 
 
 [137] 
 
APPENDIX " B." 
 
 Chapter 614, Laws of 1897. 
 
 Amendments to the Statutory Construction Law, in Relatior 
 TO Public Holidays. 
 
 Became a law May ig, 1897. 
 
 Section i. Section twenty-four of chapter six hundred and 
 seventy-seven of the laws of eighteen hundred and. ninety-two, 
 entitled " An act relating to the construction of statutes, con- 
 stituting chapter one of the general laws, ' ' is hereby amended to 
 read as follows : 
 
 Sec. 24. Public holidays; half holidays. — The term holiday 
 includes the following days in each year : the first day of January, 
 known as New Year's day; the twelfth day of February, known 
 as Lincoln's birthday; the twenty-second day of February, known 
 as Washington's birthday; the thirtieth day of May, known as 
 Memorial day; the fourth day of July, known as Independence 
 day; the first Monday of September, known as Labor day, and 
 the twenty-fifth day of December, known as Christmas day, and 
 if either of such days is Sunday, the next day thereafter; each 
 general election day and each day appointed by the president of 
 the United States or by the governor of this state as a day of 
 general thanksgiving, general fasting and prayer, or other general 
 religious observances. The term half -holiday, includes the period 
 from noon to midnight of each Saturday which is not a holiday. 
 The days and half days aforesaid shall be considered as the first 
 day of the week, commonly called Sunday, and as public holidays 
 or half -holidays, for all purposes whatsoever as regards the trans- 
 action of business in the public offices of this state, or counties 
 of this state On all other days and half days, excepting Sun- 
 days, such offices shall be kept open for the transaction of business. 
 
 Sec. 2. Chapter twenty-seven of the laws of eighteen hundred 
 and seventy-five, chapter thirty of the laws of eighteen hundred 
 and eighty-one, chapter two hundred and eighty-nine of the laws 
 of eighteen hundred and eighty-seven and chapter six hundred 
 and three of the laws of eighteen hundred and ninety-five, are 
 hereby repealed. 
 
 Sec. 3. This act shall take effect October first, eighteen hun- 
 dred and ninety-seven. 
 
 [138] 
 
APPENDIX C. 
 
 Interest Law of New York. 
 
 Provisions of R. S. Pt. II. Ch. 4 Title 3 as Amended. 
 
 Legal rate. 
 
 Sec. I . The rate of interest upon the loan or forbearance of any 
 money, goods or things in action, shall be six dollars upon one 
 hundred dollars, for one year, and after that rate, for a greater 
 or less sum, or for a longer or shorter time. But nothing herein 
 contained shall be so construed as to in any way affect any con- 
 tract, or obligation made before the paassage of this act. Am'd 
 L. 1&79, c. 53,8, sec. I. Took effect January ist, 1880. 
 (Interest rate prior to that 7 per cent.) 
 
 Prohibition of grreater rate. 
 
 Sec. 2. No person or corporation shall, directly or indirectly, 
 take or receive in money, goods or things in action, or in any 
 other way, any greater sum or greater value, for the loan or for- 
 bearance of any money, goods or things in action, than is above 
 prescribed. Sec. 2. 
 
 Recovery of excess. 
 
 Sec. 3. Every person who, for any such loan or forbearance, 
 shall pay or deliver any greater sum or value than is above allowed 
 to be received, and his personal representatives, may recover in 
 action against the person who shall have taken or received the 
 same, and his personal representatives, the amount of the money 
 so paid or value delivered, above the rate aforesaid, if such action 
 be brought within one year after such payment or delivery. 
 
 Recovery by overseer of poor. 
 
 Sec. 4. If such suit be not brought within the said one year, 
 and prosecuted with effect, then the said sum may be sued for 
 and recovered with costs, at any time within three years after 
 the said one year, by an overseer of the poor of the town where 
 such payment may have been made, or by any county superin- 
 
 [139] 
 
I40 THE NEGOTIABLE INSTRUMENTS LAW. 
 
 tendent of the poor of the county, in wbich the payment may 
 have been made. 
 
 (Note. Sec. 5 is amended and superseded by Laws 1837, chap. 
 430, post, which also supersedes sees. 6 and 8.) 
 
 (Note. Sec. 6 superseded by L. 1837, chap. 430, §§ 2 and 3, 
 post.) 
 
 Repayment a bar, etc. 
 
 Sec. 7. Every person who shall discover and repay or return 
 the money, goods or other things so taken, accepted or received, 
 or the value thereof, shall be acquitted and discharged from any 
 other or further forfeiture, penalty or punishment, which he may 
 have incurred, by taking or receiving the money, goods or other 
 things so discovered and repaid or returned, as aforesaid. 
 
 (Note. Section 8, superseded by L. 1837, chap. 430, sec. 4. 
 Section 9 repealed and superseded by section 26, Stat. Constr. 
 Law, post. ) 
 
 How interest calculated. 
 
 Sec. 10. Whenever, in any statute, act, deed, written or 
 verbal contract, or in any public or private instrument whatever, 
 any certain rate of interest, is or shall be mentioned, and no period 
 of time is stated for which such rate is to be calculated, interest 
 shall be calculated at the rate mentioned, by the year, in the 
 same manner as if the words " per annum " or " by the year," 
 had been added to such rate. 
 
 LAWS 1837, CHAP. 430, SEC. i. 
 Excessive Interest prohibited. 
 
 Sec. I. The fifth section of title three of chapter four, part 
 two of the Revised Statutes, is hereby amended so as to read as 
 follows : 
 
 Sec. 5. All bonds, bills, notes, assurances, conveyances, all 
 other contracts or securities whatsoever (except bottomry and 
 respondentia bonds and contracts), and all deposits of goods or 
 things whatsoever, whereupon or whereby there shall be reserved 
 or taken, or secured or agreed to be reserved or taken, any greater 
 sum, or greater value, for the loan or forbearance of any money, 
 
APPENDIX. 141 
 
 goods or other things in action, thaii is above prescribed, shall 
 be void; but this act shall not aifect such a paper as has been 
 made and transferred previous to the time it shall take effect. 
 
 Witnesses. 
 
 Sec. 2. Whenever in an action at law, the defendant shall 
 plead or give notice of the defense of usury, and shall verify the 
 truth of his plea or notice by affidavit, he may for the purpose 
 of proving the usury, call and examine the plaintiff as a witness 
 in the same manner as other witnesses may be called and examined. 
 
 Offender compelled to answer. 
 
 Sec. 3. Every person offending against the provisions of the 
 said title, or of this act, may be compelled to answer on oath any 
 bill that shall be exhibited against him in the court of chancery, 
 for relief or discovery, or both. 
 
 JBorrower filing' bill of discovery, need not pay princi- 
 pal or interest, as condition precedent. 
 
 Sec. 4. Whenever any borrower of money, goods or things in 
 action shall file a bill in chancery, for relief, or discovery or both, 
 against any violation of the provisions of the said title or of this 
 act, it shall not be necessary for him to pay or offer to pay any 
 interest or principal on the sum or thing loaned; nor shall any 
 court of chancery require or compel the payment or deposit of 
 the principal sum or interest or any portion thereof as a condition 
 of granting relief or compelling or discovering to the borrower in 
 any case usurious '?ans forbidden by said title or by this act. 
 (Supersedes sec. 8, R. S. pt. II, c. 4, t. 3.) 
 
 Decree on proof of usury. 
 
 Sec. 5. Whenever it shall satisfactorily appear, by the admis- 
 sions of the defendant or by proof that any bond, bill, note, 
 assurance, pledge, conveyance, contract, security or any evidence 
 of debt, has been taken or received in violation of the provisions 
 of said title, or of this act, the court of chancery shall declare 
 the same to be void. And enjoin any prosecution thereon and 
 order the same to be surrendered and cancelled. 
 
 (Note. Sees. 6, 7 and 8 of this act are repealed by Laws 1886, 
 chap. 593, sec. i, paragraph 12. The substance is contained jp. 
 the Penal Code, sec. 378.) 
 
142 THE NEGOTIABLE INSTRUMENTS LAW. 
 
 Time, how computed. (Statutory Construction Law, § 26.) 
 
 In a statute, contract or public or private instrument, unless 
 otherwise provided in such contract or instrument or by law, the 
 term month means a calendar month and not a lunar month. A 
 number of months after or before a certain day shall be com- 
 puted by counting such number of calendar months from such 
 day, exclusive of the calendar month in which such day occurs, 
 and shall include the day of the month in the last month so 
 counted having the same numerical order in days of the month as 
 the day from which the computation is made, unless there be not 
 so many days in the last month so counted, in which case the 
 period computed shall expire with the last day of the month so 
 counted. 
 
 (Note. The above, section 26 of the Statutory Construction 
 Law, chap. 677, Laws 1892, takes the place of section 9, R. 
 S. pt. II, c. 4, t. 3, which is repealed.) 
 
 LAWS OF 1850, CHAPTER 172. 
 
 Corporations not to plead usury. 
 
 Sec. I. No corporation shall hereafter interpose the defense 
 of usury in any action. 
 
 " Corporation " defined. 
 
 Sec. 2. The term corporation, as used in this act, shall "be con- 
 strued to include all associations and joint-stock companies hav- 
 ing any of the powers and privileges of corporations not possessed 
 by individuals or partnerships. 
 
 LAWS OF 1882, CHAPTER 237. 
 
 Demand loans of five thousand dollars and upward, etc. 
 
 Sec. I . In any case hereafter in which advances of money, repay" 
 able on demand, to an amount not less than five thousand dollars, 
 are made upon warehouse receipts, bills of lading, certificates of 
 stock, certificates of deposit, bills of exchange, bonds or other 
 negotiable instruments pledged as collateral security for such repay- 
 ment, it shall be lawful to receive or to contract to receive and 
 
APPENDIX. 143 
 
 collect, as compensation for making such advances, any sum to 
 be agreed upon in writing by the parties to such transaction. 
 
 L. 1882, chap. 237, sec. i. See Banking Law, sec. ^6, post. 
 
 Penal code — taking usury. 
 
 Sec. 378. A person who, directly or indirectly, receives any 
 interest, discount or consideration upon the loan or forbearance of 
 money, goods or things in action, or upon the loan, use or sale of 
 his personal credit in anywise, where there is taken for such loan, 
 use or sale of personal credit security upon any household f uniture, 
 sewing machines, plate or silverware, in actual use, tools or 
 implements of trade, wearing apparel or jewelry, or as security 
 for the loan, use or sale of personal credit as aforesaid, makes a 
 pretended purchase of such property from any person, and 
 permits the pledger to retain the possession thereof, greater 
 than six per centum per annum, is guilty of a misdemeanor. 
 
 (Note. This section takes the place of L. 1837, chap. 430* 
 sees. 6-8.) 
 
 PROVISIONS OF BANKING ACT, LAWS OF 1892, CHAP- 
 TER 689. 
 Bate of interest. 
 
 Sec. 55. Every bank and individual banker doing business in 
 this state may take, receive, reserve and charge on every loan or 
 discount made, or upon any note, bill of exchange, or other 
 evidence of debt, interest at the rate of six per cent per annum; 
 and such interest may be taken in advance, reckoning the days 
 for which the note, bill or evidence of debt has to run. 
 
 The knowingly taking, receiving, reserving or charging a greater 
 rate of interest shall be held and adjudged a forfeiture of the 
 entire interest which the note, bill or other evidence of debt car- 
 ries with it, or which has been agreed to be paid thereon. If a 
 greater rate of interest has been paid, the person paying the same 
 or his legal representatives may recover back twice the amount of 
 the interest thus paid from the bank or individual banker taking 
 or receiving the same, if such action is brought within two years 
 from the time the excess of interesti s taken. The purchase, 
 discount or sale of a bona fide bill of exchange, note or other 
 
i44 THE NEGOTIABLE INSTRUMENTS LAW. 
 
 evidence of debt, payable at another place than the place of such 
 purchase, discount or sale at not more than the current rate of 
 exchange for sight drafts, or a reasonable charge for the collection 
 of the same, in addition to the interest, shall not be considered as 
 taking or receiving a greater rate of interest than six per cent 
 per annum. 
 
 The true intent and meaning of this section is to place aiid con- 
 tinue banks and individual bankers on an equality in the particu- 
 lars herein referred to with the national banks organized under the 
 act of congress entitled " An act to provide a national currency, 
 " secured by the pledge of United States bonds, and to provide 
 " for the circulation and redemption thereof," approved June 3, 
 1864. 
 
 Rate of interest on loans on warehouse receipts, 
 
 § 56. Upon advances of money repayable on demand to an 
 amount not less than five thousand dollars made upon warehouse 
 receipts, bills of lading, certificates of stock, certificates of deposit, 
 bills of exchange, bonds or other negotiable instruments, pledged 
 as collateral security for such repayment, any bank or individual 
 banker may receive or contract to receive and collect as com- 
 pensation for making such advances any sum to be agreed upon 
 in writing by the parties to such transaction. 
 
 Redemption agencies. 
 
 §67. Every bank or individual banker issuing circulating notes, 
 except those whose place of business is in the cities of New York, 
 Albany, Brooklyn or Troy, and who have not already made such 
 an appointment, shall forthwith appoint in writing an agent who 
 shall keep an office in the city of New York, Albany, or Troy, for 
 the redemption of all circulating notes issued by it or him which 
 shall be presented to such agent for payment or redemption; 
 and such appointment shall be delivered to the superintendent 
 forthwith and filed in his office. Any bank or individual banker 
 or other person may be such agent. If any such bank or banker 
 shall omit to appoint such agent forthwith, the superintendent 
 shall appoint such agent for such bank or banker and file such 
 appointment in his office. 
 
 The superintendent shall, immediately after such appointiment 
 and fihng thereof in his office, publish during such time as he may 
 
APPENDIX. 145 
 
 deem proper, a list of such agents in the state paper and in at 
 least two daily newspapers in the city of New York. 
 
 If the agent of any bank or banker shall neglect or refuse to 
 redeem its notes on demand, such bank or banker shall pay to 
 the person making such demand, interest on such notes at the 
 rate of twenty per cent per annum. If such redemption and 
 payment of interest is not made at such office within twenty days 
 from the time when first demanded, such bank or individual 
 banker may be proceeded against by the superintendent of banks 
 in the same manner and with the like effect as though insolvent; 
 and such bank or banker shall not issue or put in ciculation any 
 bills or notes; and the superintendent shall also proceed in the 
 manner directed in section seventy-two of this chapter. Every 
 bank and individual banker outside of the cities of New York, 
 Albany, Brooklyn and Troy, shall redeem and pay on demand all 
 circulating notes issued by it or him presented for redemption or 
 payment at the office of its such agent in the city of New York, 
 Albany or Troy, at a rate of discount not exceeding one-quarter 
 of one per cent. 
 
 Bedemption in notes of otber banks. 
 
 § 7 r . When an action shall be brought against any bank or 
 individual banker for the recovery of the amount due on any circu- 
 lating notes registered in the superintendent's office, the payment 
 of which shall have been demanded at the banking house or other 
 place of business of the defendant, if it shall appear on the trial 
 or otherwise, to the court in which such suit is brought, that at 
 the time such demand of payment was made, the defendant 
 offered in payment the circulating notes issued by any other bank 
 or banker which were at the time at par in the city of New York, 
 Albany or Troy, or a draft on any bank or banker in either of 
 such cities, for the amount of the circulating notes so presented, 
 with an affidavit, if required, that such draft is available to its 
 full amount, to insure the immediate payment thereof on pre- 
 sentation, or in case any action shall be commenced upon such 
 notes before the expiration of fifteen days from the time of the 
 first demand thereof; and if such bank or banker shall be ready 
 and prepared to redeem such notes in the lawful money of the 
 United States at the ordinary place of business of such bank or 
 banker, at the expiration of fifteen days from the time of the 
 first demand thereof, with interest, then in either case the plain- 
 10 
 
146 THE NEGOTIABLE INSTRUMENTS LAW. 
 
 tiff in such action shall not recover any costs, fees or disburse- 
 ments whatever against the defendant, and shall be entitled to 
 recover no more than six per cent interest in lieu of all damages for 
 the non-payment of such circulating notes. No interest shall be 
 recovered upon such notes in any action unless the plaintiff 
 or holder thereof shall have again presented the same for 
 payment at the ordinary place of business of the defendant on 
 or after the fifteenth day after such first demand and before 
 the twentieth day, and the defendant shall have neglected or 
 refused to pay the same with interest to that time. If such bank 
 or banker at the time of the first presentation of such notes shall 
 have offered to pay current bank notes or drafts, or both, or 
 either, in the manner above provided, and shall, at the time of 
 such second presentation, pay or tender the amount of such notes 
 in the lawful money of the United States at its ordinary place of 
 business, then such bank or banker shall not be deemed to have 
 suspended or refused specie payment or payment of its circulat- 
 ing notes, within the meaning of any statutes authorizing pro- 
 ceedings for the dissolution of such bank, or to restrain or enjoin 
 such bank or banker from the transaction of its business, nor 
 shall such bank or banker in such case be liable to any other or 
 greater damages for the non-payment of such notes than above 
 provided, notwithstanding any contrary provision in the charter 
 of such bank or of any other statute. 
 
 Protests of notes and proceedings thereon. 
 
 § 72. If the maker of any circulating notes countersigned and 
 registered as herein provided, shall at any time hereafter on law- 
 ful demand during the usual hours of business, between the hours 
 of ten and three o'clock, at the place where such notes are pay- 
 able, fail or refuse to redeem such notes in the lawful money of 
 the United States, the holder thereof making such demand, may 
 cause the same to be protested in one package for non-payment 
 by a notary public under his seal of office in the usual manner, 
 unless the president, cashier or teller of the bank shall offer to 
 waive demand and notice of the protest, and shall, in pursuance 
 of such offer, make, sign and deliver to the party making such 
 demand, an admission in writing, stating the time of the demand, 
 the amount demanded and the facts of the non-payment thereof. 
 The superintendent on receiving and filing in his office such 
 admission or protest, together with such notes, shall forthwith 
 
APPENDIX. 147 
 
 give notice in writing to the maker thereof to pay the same, and 
 if such maker shall omit to do so for fifteen days after such 
 notice, the superintendent shall immediately, unless satisfied that 
 there is a good and legal defense to the payment of such notes, 
 give notice in the state paper that all the circulating notes issued 
 by such bank or banker will be redeemed out of the trust funds 
 in his hands for that purpose; and the superintendent shall apply 
 such funds to the payment pro rata of all the circulating notes put 
 in circulation by such bank or banker, pursuant to the provisions 
 of this chapter, and adopt such measures for the payment of such 
 notes as will, in his opinion, most effectually prevent loss to the 
 holders thereof. 
 
 If payment of such notes is not made for a period of ten days 
 after the first publication of such notice, the superintendent 
 shall sell at public auction the securities so pledged, or any of 
 them, and out of the proceeds of such sale pay and cancel such 
 notes, but the state shall not be deemed as under any pledge for 
 the payment of such notes beyond the proper application of the 
 proceeds of such securities for their redemption. 
 
 Damages for non-payment of any such notes in lieu of interest 
 at the rate of six per cent per annum from the time of refusal of 
 payment, shall be paid by the bank or banker refusing to pay 
 such notes on demand. 
 
 This section shall not apply to cases where circulating notes 
 registered in the superintendent's office shall be presented for 
 payment to an agent of any incorporated bank or individual 
 banker appointed according to the provisions of this chapter 
 relating to the redemption of bank notes, nor to any bank or 
 individual banker for whom there shall not be at the time an 
 agent duly appointed as prescribed in this chapter; nor to banks 
 or individual bankers whose place of business is in either of the 
 cities of New York, Albany, Brooklyn or Troy. 
 
 All fees for protesting any such notes shall be paid by the per- 
 son procuring the service to be performed, and the bank or banker 
 issuing such notes shall be liable for the same, but no part of the 
 securities deposited by such bank or banker shall be applied to 
 the payment of such fees. 
 
 Bate of interest In savings banks. 
 
 § 123. The trustees of every such corporation shall regulate the 
 rate of interest or dividends not to exceed five per centum per 
 
148 THE NEGOTIABLE INSTRUMENTS LAW. 
 
 annum upon the deposits therewith, in such manner that depositors 
 shall receive as nearly as may be, all the profits of such corporation, 
 after deducting necessary expenses and reserving such amounts, 
 as the trustees may deem expedient as a surplus fund for the 
 security of the depositors which, to the amount of fifteen per cent 
 of its deposits, the trustees of any such corporation may gradu- 
 ally accumulate and hold, to meet any contingency or loss in its 
 business from the depreciation of its securities or otherwise. 
 The trustees may classify their depositors according to the 
 character, amount and duration of their dealings with the cor- 
 poration, and regulate the interest or dividends allowed in such 
 manner that each depositor shall receive the same ratable portion 
 of interest or dividends as all others of his class. 
 
 The trustees of any such corporation shall not declare or allow 
 interest on any deposit for a longer period than the same has 
 been deposited, except that deposits made not later than the 
 tenth day of the month, commencing any semi-annual interest 
 period, or the third day of any month, or withdrawn upon one 
 of the last three days of the month, ending any quarterly or 
 semi-annual interest period, may have interest declared upon 
 them for the whole of the period or month when so deposited or 
 withdrawn. 
 
 No dividends or interest shall be declared, credited or paid, 
 except by the authority of a vote of the board of trustees duly 
 entered upon their minutes, whereon shall be recorded the ayes 
 and nays upon each vote ; but accounts closed between dividend 
 periods may be credited with interest at the rate of the last divi- 
 dend, computing from the last dividend period to the date when 
 closed, if the by-laws so provide. Whenever any interest or 
 dividend shall be declared and credited in excess of the interest 
 or profits earned and appearing to be the credit of the corporation, 
 the trustees voting for such dividend shall be jointly and severally 
 liable to the corporation for the amount of such excess so 
 declared and credited. 
 
 The trustees of any such corporation whose surplus amounts to 
 fifteen per cent of its deposits, at least once in three years, shall 
 divide equitably the accumulation beyond such authorized surplus 
 as an extra dividend to depositors, in excess of the regular divi- 
 dends authorized. A notice posted conspicuously in a bank of a 
 change in the rate of interest shall be equivalent to a personal 
 notice. 
 
APPENDIX. 149 
 
 Bate of interest permitted to national banks. 
 
 U. S. Rev. Stat., sec. 5197. 
 
 Any associatioa may take, receive, reserve and charge on any 
 loan or discount made, or upon any note, bill of exchange, or 
 other evidences of debt, interest at the rate allowed by the laws 
 of the state, territory or district where the bank is located, and 
 no more, except that where by the laws of any state a different 
 rate is limited for banks of issue organized under state laws, the 
 rate so limited shall be allowed for associations organized or 
 existing in any such state under this title. Where no rate is fixed 
 by the laws of the state or territory or district, the bank may 
 take, receive, reserve, or charge a rate not exceeding seven per 
 centum, and such interest may be taken in advance, reckoning 
 the days for which the note, bill, or other evidence of debt has 
 to run. And the purchase, discount, or sale of a bona fide bill 
 of exchange, payable at another place than the place of such pur- 
 chase, discount, or sale, at not more than the current rate of 
 exchange for sight drafts, in addition to the interest, shall not be 
 considered as taking or receiving a greater rate of interest. 
 
 Consequences of taking illegal interest. 
 
 § 5198. The taking, receiving, reserving, or charging a rate of 
 interest greater than is allowed by the preceding section when 
 knowingly done, shall be deemed a forfeiture of the entire inter- 
 est which the note, bill, or other evidence of debt carries with it, 
 or which has been agreed to be paid thereon. In case the greater 
 rate of interest has been paid, the person by whom it has been 
 paid, or his legal representatives, may recover back, in an action 
 in the nature of an action of debt, twice the amount of the inter- 
 est thus paid from the association taking or receiving the same ; 
 provided such action is commenced within two years from the 
 time the usurious transaction occurred. U. S. Rev. Stat., sec. 
 5198. 
 
INDEX. 
 
 A. 
 
 Acceptance : paob. 
 
 by separate instrument 110 
 
 definition of term 8 
 
 drawee retaining or destroying bill Ill 
 
 for honor, or supra protest 123 
 
 agreement of acceptor 125 
 
 bill payable after sight, maturity of 125 
 
 dishonor 126 
 
 how made 1 25 
 
 liablity of acceptor 125 
 
 presentment for payment 126 
 
 delay in making 126 
 
 how made 109 
 
 by whom signed 109 
 
 in writing 109 
 
 kinds of 113 
 
 general , ; 112 
 
 qualified 112, 113 
 
 rights of parties 113 
 
 of bills drawn in sets 130 
 
 of incomplete bill Ill 
 
 on face of bill, holder entitled to 110 
 
 promise to accept Ill 
 
 time to accept Ill 
 
 Acceptor : 
 
 liability of 64 
 
 supra protest 125 
 
 See "Acceptance." 
 Acconamodation : 
 
 liability of indorser 44 
 
 Act: 
 
 application of.... 10 
 
 Action : 
 
 definition of term 8 
 
 [151] 
 
I $2 INDEX. 
 
 Agent : page. 
 
 authority, how shown 37 
 
 liability of, on signature S7 
 
 otice of dishonor by 88, 89 
 
 procuration, signature by 39 
 
 Ambiguity : 
 
 rules of construction 35 
 
 Application : 
 
 of this Act, not retroactive 10 
 
 B. 
 
 Bank: 
 
 definition of term 8 
 
 See "Savings Bank." 
 Bearer : 
 
 definition of term 8 
 
 when instrument payable to 27 
 
 Bill: 
 
 addressed to several drawees 107 
 
 definition of term 8 
 
 drawee in case of need 109 
 
 inland and foreign 108 
 
 not an assignment 107 
 
 of exchange, defined 106 
 
 when a note , 108 
 
 Bill of Lading : 
 
 said to be fuoat-negotiable 12 
 
 Bills in a Set : 
 
 acceptance of 130 
 
 constitute one bill 129 
 
 different parts negotiated 139 
 
 liability of holders 130 
 
 rights of holders 129 
 
 discharging one destroys whole 135 
 
 payment by acceptor. 130 
 
 Blank : 
 
 indorsement in, effect of 27 
 
 when may be filled in 30 
 
 Bond: 
 
 negotiable made non-negotiable 135 
 
INDEX. 153 
 
 C. 
 
 Cashier : page. 
 
 instTument drawn or indorsed to 53 
 
 Certainty : 
 
 as to drawee 11 
 
 as to payee 26, 27 
 
 Certificate of Deposit ; 
 
 when negotiable 12, 13 
 
 Certificate of Stoclc : - 
 
 said to be quaai-negoti&ble , 13 
 
 Checli : 
 
 certification, effect of 132 
 
 defined 131 
 
 time for presentment 131 
 
 when an assignment 133 
 
 Consideration : 
 
 holder for value 43 
 
 through lien on instrument 43 
 
 liability of accomodation indorser 44 
 
 presumption of 41 
 
 want of 43 
 
 when can be inquired into 34 
 
 what constitutes 41 
 
 when to be stated in instrument 23 
 
 Construction : 
 
 of instrument, rules for 35 
 
 Contingency : 
 
 instrument payable on, not negotiable 18 
 
 Corporation : 
 
 defined 143 
 
 indorsement by 39 
 
 not to plead usury 143 
 
 Coupon Bond : 
 
 when negotiable 12, 13 
 
 I>. 
 
 Date: 
 
 ante-dating and post-dating 39 
 
 omission of, in instrument 33 
 
 presumption as to : 39 
 
 when it may be inserted 29 
 
 Day: See"HoUday." 
 
154 INDEX. 
 
 Debt : pagb. 
 pre-existing, constitutes valae , 41 
 
 Definitions : 
 
 of terms used in act 8 
 
 Delivery : 
 
 conditional , 33, 34, 35 
 
 definition of term 8 
 
 of incomplete instrument 33 
 
 of notice of dishonor 90 
 
 warranty where negotiation by 66 
 
 when efiectual 83 
 
 when presumed 33 
 
 Demand : 
 
 want of, effect of 69 
 
 when instrument payable on 24 
 
 when presentment to be made 73 
 
 See " Presentment for Acceptance," "Presentment for Payment." 
 
 Discharge of Instrument : 
 
 bills in a set 130 
 
 by alteration 104 
 
 material, what constitutes 105 
 
 by act discharging contract 101 
 
 by cancellation 101 
 
 burden of proof 104 
 
 unintentional, effect of 104 
 
 by payment 100 
 
 debtor becoming holder 101 
 
 merger 103 
 
 persons secondarily liable, when discharged 102 
 
 renunciation by holder 103 
 
 right of party discharging 103 
 
 re-negotiation 103 
 
 Dishonor : See " Notice of Dishonor," Presentment for Accept- 
 ance," Presentment for Payment." 
 
 Drawee : 
 
 instrument may be payable to order of 36 
 
 may be several 107 
 
 See "Acceptance." 
 Drawer : 
 
 instrument may be payable to order of 26 
 
 liability of 63 
 
 notice of dishonor to 87 
 
 relieved from liability by certification of check 133 
 
 when presentment not required, to charge 83, 115 
 
 Due Bill : 
 
 when negotiable 12 
 
INDEX. 155 
 
 XiTidence : page. 
 
 parol, when allowable to show intent of immediate parties.SS, 34, 35 
 
 F. 
 
 Fictitious Person : 
 
 instrument payable to 27 
 
 H. 
 
 Holder : 
 
 definition of term 8 
 
 duty of, where bill not accepted 118 
 
 for value, what constitutes 43 
 
 lien on instrument 43 
 
 in due course, what constitutes 57 
 
 notice before full amount paid 59 
 
 rights of 61 
 
 when person not deemed 59 
 
 who deemed 63 
 
 instrument subject to original defenses 61 
 
 notice of dishonor in behalf of 88 
 
 of office, instrument may be payable to order of 26 
 
 rights of 57 
 
 after dishonor 84 
 
 of bills in a set 129 
 
 to acceptance on face of bill 110 
 
 to sue 57 
 
 where bill not accepted 118 
 
 title of, when defective 60 
 
 what constitutes notice 60 
 
 Holiday : 
 
 instrument due on 9 
 
 statute constituting 138 
 
 I. 
 
 Indorsee: See " Indorsement." 
 
 Indorsement : 
 
 by corporation 39 
 
 by infant 39 
 
 conditional 51 
 
 definition of term 9 
 
 for collection 48 
 
 for deposit 49 
 
 how made 46 
 
 in blank 37, 47 
 
 indorsement to " cashier " 52 
 
 in representative capacity 54 
 
 instrument payable to bearer 52 
 
156 INDEX. 
 
 Indorsement — Continued. page. 
 
 instrument payable to two or more persons 63 
 
 must be of entire instrument 46 
 
 place of, presumption 54 
 
 qualified 50 
 
 restrictive 47 
 
 efEectof. 50 
 
 rights of endorsee 50 
 
 special 47 
 
 striking out 55 
 
 time of, presumption 54 
 
 transfer without, effect of 55 
 
 where name is mispelled 53 
 
 Indorser : 
 
 accommodation, liability of 44 
 
 general, liability of 67 
 
 irregular, liability of 65 
 
 liability after check certified 132 
 
 notice of dishonor to 87 
 
 order of liability 68 
 
 paper negotiable by delivery 68 
 
 presentment not required to charge 83, 115 
 
 when person deemed 65 
 
 Infant : 
 
 indorsement by 39 
 
 Instrument : 
 
 acceptance of 109 
 
 acceptance supra protest 123 
 
 bills in a set 139 
 
 blank in, when may be filled 30 
 
 checks .' 131 
 
 construction, rules of 35 
 
 continuation of negotiable character 54 
 
 date, omission of 22 
 
 ante-dating and post-dating 29 
 
 "insertion of 29 
 
 presumption as to 29 
 
 delivery of 33 
 
 when effectual 33 
 
 when presumed 83 
 
 discharge of 100 
 
 dishonored by non-payment, when 84 
 
 liability of person secondarily liable 84 
 
 forged signature, effect of 40 
 
 given for patent rights 134 
 
 given for speculative consideration 134 
 
 olders, rights of 57 
 
 incomplete, not delivered 33 
 
 indorsement by infant or corporation 39 
 
 liability of parties 63 
 
INDEX. 1 57 
 
 Instrument — Continued. page. 
 
 may be payable in particular kind of money 32, 24 
 
 means " negotiable instrument " in this act 9 
 
 notice of dishonor 86 
 
 omissions in, effect of 22 
 
 payee to be indicated with reasonable certainty 26, 27 
 
 payment supra protest 127 
 
 presentment for xceptance 114 
 
 presentment for payment 69 
 
 primary and secondary liability on 9 
 
 promise to pay to be unconditional 16 
 
 not out of a particular fund 16, 17 
 
 promissoi'y notes 131 
 
 protest of 119 
 
 provisions in, not affecting negotiability 20 
 
 confession of judgment 20, 21 
 
 election of holder as to payment 20, 21 
 
 sale of collateral securities ^ 20, 21 
 
 waiver of legal benefit 20, 21 
 
 re-negotiation of 56, 103 
 
 requirements of negotiability 11 
 
 must be in writing 11 
 
 must be payable on demand or at fixed time 11 
 
 must be payable to order or bearer 11 
 
 must be signed by maker or drawer 11 
 
 must contain promise or order to pay 11 
 
 must definitely indicate drawee 11 
 
 rule where payable at bank 85 
 
 seal upon, effect of 22, 24 
 
 signing as agent 37 
 
 signing under assumed name 37 
 
 subject to original defenses 61 
 
 terms of, what are sufficient 28 
 
 time of payment to be determinable 18, 19 
 
 not dependent on contingency 18, 19 
 
 to be payable in legal tender or cash 13 
 
 to whose order may be payable. . 25 
 
 warranty where negotiation by delivery 66 
 
 what instruments are negotiable 12 
 
 bills of lading 12 
 
 certificates of deposit 12, 13 
 
 certificates of stock 12 
 
 coupon bonds 12 
 
 due bills 12 
 
 order on savings bank 12 
 
 receivers' certificates 13 
 
 when payable on demand 24 
 
 when payable to bearer 27 
 
 indorsement in blank 27 
 
 payable to fictitious person 27 
 
 when payable to order 25 
 
158 INDEX. 
 
 Interest Laws: faoe. 
 
 banking act 143 
 
 loans on warehoase receipts 144 
 
 protest of notes 146 
 
 rate of interest 143 
 
 in sayings banks 147 
 
 redemption agencies 144 
 
 redemption in notes of other banks 145 
 
 borrower filing bill of discovery 141 
 
 corporation not to plead usury 142 
 
 decree on proof of usury. 141 
 
 demand loans 143 
 
 how interest calculated 140 
 
 legal rate 139 
 
 offender compelled to answer 141 
 
 penalty for taking usury 143 
 
 prohibition of greater rate 139, 140 
 
 recovery of excess 139 
 
 by overseer of poor 139 
 
 repayment a bar 140 
 
 United States statutes 149 
 
 rate of interest in national banks 149 
 
 taking illegal interest 149 
 
 witness to prove usury. 141 
 
 Issue : 
 
 definition of term 9 
 
 Law Merchant : 
 
 rules of, to govern 10 
 
 Laws Repealed ; 
 
 schedule of 136 
 
 Liability : 
 
 of acceptor 64 
 
 of agent or broker 68 
 
 of drawee retaining bill Ill 
 
 of drawer 63 
 
 of holders of bills in a set 130 
 
 of indorser: 
 
 for accommodation 44 
 
 general 67 
 
 irregular 65 
 
 order of liability 68 
 
 when person deemed indorser 65 
 
 where pape. negotiable by delivery 68 
 
 of maker 63 
 
 of persons secondarily liable 84 
 
 after dishonor 84 
 
INDEX. 1 59 
 
 liiability — Continued. page. 
 
 primary and secondary 9 
 
 test of, is signature 37 
 
 signing as agent 37 
 
 signing under assumed name 37 
 
 warranty in negotiation by delivery 66 
 
 liien: 
 
 on instrument constituting holder for value 43 
 
 M 
 
 Maker : 
 
 instrument may be payable to order of 26 
 
 liability of 63 
 
 Maturity : 
 
 time of 85 
 
 Merger : See " Discharge of Instrument.' 
 
 Money : 
 
 instrument payable in particular time 33, 34 
 
 what constitutes, for negotiability 13 
 
 N. 
 Negotiability : 
 
 definition of negotiable paper 3 
 
 dependent upon unconditional promise to pay 16 
 
 not out of particular fund 16> 17, 18 
 
 distinguished from assignability 4 
 
 effect of omissions upon 23 
 
 instrument to be payable at fixed time 18, 19 
 
 upon contingency, not negotiable 18, 19 
 
 in legal tender or cash 13 
 
 provisions not affecting 11 
 
 confession of judgment 30, 31 
 
 election of holder as to payment 30. 21 
 
 sale of collateral securities 20, 21 
 
 waiver of legal beneflt 20, 21 
 
 lequirements generally 11 
 
 must be in writing 11 
 
 must be payable on demand or at fixed time 11 
 
 must be payable to order or bearer 11 
 
 must be signed by maker or drawer 11 
 
 must contain order or promise to pay 11 
 
 must definitely indicate drawee 11 
 
l6o INDEX. 
 
 Negotiability — Continued. PAGE. 
 
 what instruments are negotiable 13 
 
 bills of lading 13 
 
 certificates of deposit 12, 13 
 
 certificates of stock 12 
 
 coupon bonds 12 
 
 due bills 12 
 
 orders on savings banks 12 
 
 receivers' certificates 13 
 
 Negotiation : 
 
 by delivery, warranty in 66 
 
 by indorsement 46 
 
 conditional • 51 
 
 for collection 48 
 
 for deposit 49 
 
 how made 46 
 
 inblank 27, 47 
 
 in representative capacity 64 
 
 of part of instrument 46 
 
 place of 54 
 
 qualified 50 
 
 restriction 47, 50 
 
 special 47 
 
 striking out 55 
 
 time of 54 
 
 to "cashier" 53 
 
 when payable to bearer 52 
 
 when payable to two or more persons 52 
 
 continuation of negotiable character 54 
 
 instrument drawn to " cashier" 53 
 
 re-negotiation 103 
 
 transfer without indorsement 55 
 
 what constitutes 45 
 
 where instrument Is negotiated back 56 
 
 where name is misspelled 53 
 
 Note: 
 
 definition of term 8, 181 
 
 when bill may be treated as 108 
 
 Notice of Dishonor : 
 
 bankrupt, how given to 92 
 
 by party entitled to give, effect of 89 
 
 by whom given 87 
 
 byagent 88, 89 
 
 delay in giving, how excused 97 
 
 dispensed with 97 
 
 to drawer, in what cases 98 
 
 to indorser, in what cases 98 
 
 when cannot be given 97 
 
 where acceptance refused 99 
 
INDEX. l6l 
 
 Notice of Dishonor — Continued pagb. 
 
 formof 90 
 
 how delivered 90 
 
 joint parties, how given to 91 
 
 may be given to whom 90 
 
 must be given to whom 87 
 
 omission to give, efEect of 99 
 
 on behalf of holder, effect of 88 
 
 partners, how given to 91 
 
 sufficient when 89 
 
 through post-office , 94 
 
 deposit, what constitutes 94 
 
 when sufficient 94 
 
 time to give 92 
 
 parties residing in different places 93 
 
 parties residing in same place 93 
 
 to subsequent party 94 
 
 waiver 96 
 
 ofprotest 97 
 
 whom affected by 96 
 
 where party is dead. 91 
 
 where to be sent 95 
 
 O. 
 
 Omissions : 
 
 in instrument, effect of 22 
 
 rules of construction 35 
 
 Order : 
 
 to whose order may be payable , 25 
 
 when instrument is payable to 25 
 
 P. 
 
 Partners : 
 
 notice of dishonor to 91 
 
 presentment to 81 
 
 Patent Bights: 
 
 negotiable instrument given for 134 
 
 Parol Evidence : See " Evidence." 
 
 Payee : 
 
 who may be 25 
 
 there may be several 26 
 
 to be named with reasonable certainty 26, 27 
 
 Payment : 
 
 in due course what constitutes 86 
 
 See " Discharge of Instrument," " Presentment for Payment." 
 
 II 
 
l62 INDEX. 
 
 Payment Supra Protest : page. 
 
 declaiation before 128 
 
 effect on subsequent parties 128 
 
 holder refusing to receive 128 
 
 how made 127 
 
 preference of offering parties 128 
 
 rights of payer ■ 129 
 
 who may make 127 
 
 Person : 
 
 definition of term 9 
 
 Place : 
 
 omission of from instrument 22, 23 
 
 Presentment for Acceptance : 
 
 dishonor by non-acceptance 118 
 
 duty of holder 118 
 
 rights of holder 118 
 
 failure of, effect of 115 
 
 how made 115 
 
 when not necessary to make parties liable 114 
 
 when excused 117 
 
 when time is insuflBcient 117 
 
 when to be made 114 
 
 on what days 116 
 
 Presentment for Payment: 
 
 delay in, excused 82 
 
 bills accepted supra protest 126 
 
 dishonor after presentment 84 
 
 person secondarily liable 84 
 
 dispensed with, when 83 
 
 exhibiting instrument 79 
 
 joint debtors, presentment to 81 
 
 not required, when 82 
 
 to charge drawer 82 
 
 to charge indorser 82 
 
 of bills accepted supra protest 126 
 
 of checks 131 
 
 .partners, presentment to. 81 
 
 place of 77 
 
 principle debtor being dead 81 
 
 sufficient, what constitutes 76 
 
 want of demand, effect of 69 
 
 on indorser 69 
 
 on principal debtor 69 
 
 when to be made 73 
 
 instrument payable at bank '. . . 80 
 
 instrument payable on demand 73 
 
 maturity of instrument 85 
 
 time, how computed 85 
 
INDEX. 163 
 
 Presumption ; page. 
 
 as to consideration 41 
 
 as to date 29 
 
 as to delivery 33 
 
 as to place of indorsement 54 
 
 as to signature 41 
 
 as to time of indorsement 54 
 
 Procuration: 
 
 signature by 39 
 
 Promise : 
 
 to pay, when unconditional 16 
 
 . Promissory Note: See "Note." 
 
 Protest : 
 
 before maturity, when acceptor insolvent 123 
 
 by whom made 121 
 
 dispensed with 122 
 
 for non-acceptance and non-payment 122 
 
 how made 120 
 
 of bills accepted supra protest 126 
 
 waiver of 97 
 
 when necessary 100, 119 
 
 when to be made 121 
 
 where bill is lost 123 
 
 where made 123 
 
 B. 
 
 Keceivers' Certificates: 
 
 not ordinarily negotiable , 13 
 
 S. 
 
 Savings Bank: 
 
 order upon, whether negotiable 12 
 
 Seal: 
 
 eflect of, upon instrument 22, 34 
 
 Signature : 
 
 by agent 37 
 
 by procuration 39 
 
 forged 40 
 
 presumption as to 41 
 
 under trade or assumed name 37 
 
 Speculative Consideration : 
 
 negotiable instrument given for 135 
 
1 64 INDEX. 
 
 Sum : PAGE. 
 
 how may be made payable 14, 15 
 
 by installments 14, 15 
 
 with costs of collection 14, 15 
 
 with exchange ..14, 15 
 
 with fees of attorney 14, 15 
 
 with interest 14, 15 
 
 Sunday. See " Holiday." 
 
 T. 
 
 Terms : 
 
 of instrument, when sufficient 28 
 
 Time : 
 
 allowed drawee to accept Ill 
 
 determinable future, what constitutes 18, 19 
 
 for presentment for acceptance 114 
 
 how computed 9, 86, 143 
 
 of maturity 85 
 
 of checks 131 
 
 reasonable, what constitutes 9 
 
 to give notice of dishonor 92 
 
 Title : 
 
 defective, of person negotiating instrument 60 
 
 notice of defect 60 
 
 short, of this act 8 
 
 U. 
 
 Unconditional Promise : See " Promise." 
 Usury : See " Interest Laws." 
 
 V. 
 
 Value : 
 
 pre-existing debt is valne 41 
 
 definition of term 9 
 
 holder for, what constitutes 43 
 
 lien on instrument 43 
 
 omission of, from instrument 22 
 
 Violations of Commercial Paper Law : 
 
 Penal Code provisions 137 
 
INDEX. 165 
 
 W. 
 
 Waiver: pase. 
 
 of notice of dishonor 96 
 
 of protest 97 
 
 "Warranty : 
 
 in negotiation hj delivery 66 
 
 Writing: 
 
 includes print , , 9, 11 
 
The Law of Taxable Transfers. 
 
 By H. NOYES Greene, of the Troy Bar, author of 
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 for the busy lawyer, fully annotated with a complete 
 set of Forms. Handsomely printed and bound in cloth 
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 The Law of Taxable Transfers, State of New York, being Article X 
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Headley on Assignments. 
 
 By RUSSEL Headley of the Newburgh Bar. It is 
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 Yours, 
 
 CHAS. F. BROWN, 
 Pres. Justice, 2d Appellate Division. 
 
 Dear Sir — A careful examination of Mr. Headley's new work on 
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 WILLIAM D. DICKEY, 
 Justice Supreme Court, 2d Jud. Dist 
 
 " We have no other compilation of the present law in this State which is 
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 " Enclosed find my check for $3.00 for Headley on Assignments. I am 
 very much pleased with the work." 
 
 E. G. MANSFIELD, 
 Buffalo. N. Y, 
 
You Should Not. 
 
 By Samuel H. Wandell of the New York Bar. 
 A book for lawyers, old and young, containing the 
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Liquor Tax and Hotel Laws. 
 
 By Robert C. Gumming and Frank B. Gilbert 
 of the Albany Bar, authors of the " Poor, Insanity and 
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 Lawyers, Hotel Keepers and Liquor Dealers under the 
 Liquor Tax Law of i?ig6, with Forms and Annota- 
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 STATE OF NEW YORK, 
 
 Department of Excise, 
 
 Henry H. Lyman, Commissioner. 
 
 Mr. Matthew Bender, l.aw Publisher, Albany, N. Y. : 
 
 Dear Sir — We have several copies of your publication of the Excise 
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 M. N. CLEMENT, 
 
 Deputy State Com'r of Excise. 
 
 J 
 
 STATE OF NEW YORK, j 
 
 Attorney-General's Office, j 
 
 Matthew Bender, Albany, N. Y. : 
 
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 Yours very truly, 
 
 FRANK M. PARSONS, 
 
 Deputy Attorney-General. 
 
 GUGGENHEIMER, UNTERMYER & MARSHALL, j 
 No. 30 Broad Street. ) 
 
 Gentlemen — Your book on Excise and Hotel Laws has recently come 
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 ^ LOUIS MARSHALL. 
 
 GRAND UNION HOTEL, ) 
 
 Opposite Grand Central Station, > 
 
 Ford & Company, Proprietors. ) 
 
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 Yours respectfully, 
 
 SIMEON FORD, 
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Cummingf and Gilbert's Village Law. 
 
 The Village Law of 1897, The General Municipal 
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 Village Clerk 
 
Dugan's Law and Practice for Justices of the Peace. 
 
 The Civil and Criminal Law and Practice before Justices of the Peace, 
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 know is embodied in " Law and Practice in Justices' Courts," with forms, 
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 supply a digest on the law on all subjects likely to come before a justice of 
 the peace for decisions. ***** There is no recent digest of the common 
 law on these subjects, as enunciated by the courts of New York State, that 
 is so concise, so dear, and at the same time so complete as this. 
 
 DUGAN'S LAW AND PRACTICE, Justices' Courts, 2 vols $8.00 
 
 Same, the two volumes bound in one large book 6.50 
 
 THE CIVIL LAW AND PRACTICE, vol. i fseparately) 4.00 
 
 CRIMINAL LAW AND PRACTICE, and PENAL CODE, vol. 2 
 
 (separately) 4.50 
 
 All are handsome volumes, bound in full sheep. 
 
Poor, Insanity and State Charities Laws. 
 
 By Robert C. Gumming and Frank B. Gilbert 
 of the Albany Bar, authors of" The Liquor Tax and 
 Hotel Law" " Village Laws" etc., and assistants to the 
 Statutory Revision Commission. 
 
 It is a large octavo volume, Fully Annotated, In- 
 dexed, etc. Bound in sheep. Price $5.00 net, or 
 $5.25 by express, prepaid on receipt of the amount. 
 
 Contains — The Poor Law, The Insanity Law, The State Charities Law, 
 and the Law relating to Bastardy Proceedings, the Support of Poor Persons 
 by Relatives, the abandonment of wives and children by husbands and 
 fathers and the appointment of committees of the estate and persons of 
 lunatics, idiots, habitual drunkards and all other incompetent persons, and 
 also the special laws relating to powers and duties of the Department of 
 Public Charities and Correction of the City of New York and the Board of 
 Corrections and Charities in the City of Brooklyn. 
 
 All these laws are Annotated with notes referring to the provisions of the 
 old law, which are superseded, and containing Citations of all the cases 
 decided under the old law, which are now applicable. 
 
 There are included parts of the Code of Criminal Procedure, relating to 
 the duties of poor officers in bastardy proceedings and proceedings to 
 compel the support of poor persons by relatives. 
 
 IS" The law relating to the appointment of committees of incompetent 
 persons such as lunatics, idiots and habitual drunkards, and the powers 
 and duties of such committees, are fully set forth and carefully annotated. 
 
 All the forms to be used by superintendents of the poor of counties and 
 overseers of the poor of towns, in making the reports, giving the notices, 
 and taking the proceedings now required by law in administering the 
 affairs of their offices, are given in full. They will be found of incalculable 
 value. 
 
 All the rules and regulations adopted by the State Commission in 
 Lunacy, and a complete directory of the various state hospitals and chari- 
 table institutions are appended. 
 
 Lawyers, Physicians, Magistrates, Overseers of the Poor, Supervisors 
 and Town Clerks and others interested in the care and maintenance of the 
 poor, the insane and other incompetents will find this work of great value. 
 
 " * * * The labor of compiling and arranging the material for the 
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 the powers of the officers and overseers of the poor, and others. The 
 citation of authorities is very full. The forms have been prepared with 
 much care, and cover most every case that will arise under the law. The 
 book is timely and very useful." — The American Lawyer. 
 
Greene's Practice Time Table. 
 
 By H. NOYES Greene, author of " The Law of 
 Taxable Tratisfers." A handy little volume for the 
 busy lawyer s desk, containing in a systeinotic alpha- 
 betical arrangement the times within which each step 
 in the practice of the law is required to be taken. It 
 is a handsome book, bound in cloth with leather back. 
 Price, $1.50. 
 
 It embraces the Code of Civil Procedure, The Code of Criminal Proced- 
 ure, All the Court Rules. The General Assignment Act, the Mechanic's 
 Lien Acts, the Acts relating to Receivers, the New York City Consolida- 
 tion Act and Other General Laws regulating practice in the different courts 
 of the State. 
 
 In reality it is an Index and Digest of the Codes and Laws of Practice. 
 
 This Book will prove an invaluable aid to the lawyer in his every-day 
 practice. 
 
 U is a time-saver. Instead of searching through a large number of 
 sections of the Code or Court Rules in order to refresh the memory, a 
 moment's glance at Greene's Practice Time Table will be sufficient. 
 
 It is a convenient and necessary book. Once in use, always kept at the 
 lawyer's right hand for daily reference. Small and compact in size ; cheap 
 in price. Examine and you will purchase it. 
 
 " I am much pleased with the Practice Time Table, and consider it a 
 
 valuable acquisition to my office." 
 
 JOHN W. LYON, 
 
 Port Jeruis, N. Y. 
 
American Electrical Cases. 
 
 Containing all the important cases {excepting patent 
 cases) decided in the State and Federal Courts of the 
 United States on subjects relating to the Electric Rail- 
 way, Telegraph, Telephone, Electric Light and Power 
 and all other practical uses of electricity. 
 
 The importance of keeping in touch with the growth and development 
 of the law of electricity can hardly be over-estimated, and the lawyer in 
 general practice desiring to keep abreast of the times cannot afford to be 
 without the " American Electrical Cases." — Ohio Legal News. 
 
 These reports are of the greatest value to every lawyer of the present 
 age of electricity. The wide scope of these volumes makes them of 
 unusual merit. — Albany Law Journal. 
 
 * * * This is the most important addition to legal literature on a 
 subject of great and growing importance. »• v * Tf,g subject of 
 electricity has already provoked much litigation, which will necessarily in- 
 crease as the uses of electricity become more general, so that the impor- 
 tance of having the collected cases, as above, becomes at once apparent.— 
 Western Reserve Law Journal. 
 
 I have given Vol. i " American Electrical Cases " a careful examination, 
 and as the result of my examination heartily commend it to the bench and 
 bar. — Hon. Byron K. Elliott (late Chief Justice of the Supreme Court of In- 
 diana) in Law Book News. 
 
 Nowhere else can one find the law of the telegraph and the street railway 
 so conveniently set forth. — Harvard Law Review. 
 
 This is the most valuable series of cases for active lawyers that has 
 appeared within recent years. 
 
 So long as the telegraph was the sole instrument which employed the 
 electric current, the law of electricity did not develop to any marked 
 extent ; but the legal questions growing out of the many practical applica- 
 tions of electricity during the last few years have resulted in a very rapid 
 increase in the number of judicial decisions in this department of law. It 
 is to keep the profession in touch with these decisions that the current 
 series of cases has been projected. 
 
 The opinions are printed exactly as they were delivered, without addi- 
 tion or excision. The annotations are carefully arranged, comprehensive, 
 and do not suggest any evidence of " padding." A general note at the end 
 of the volume contains memoranda of cases not selected for reprinting in 
 full. — New York Law Review. 
 
 Attorneys for electrical interests will do well to possess these volumes. 
 Both the editor and the publisher have done their duties well, and a good 
 book is the result. — Michigan Law Journal. 
 
Bender's Lawyers' Diary and Directory. 
 
 A Court Calendar Diary for Lawyers in New 
 York State, issued annually, giving the appointments 
 for the Courts, all the Court Rules, Federal, New York 
 State and City Governments, County Officials, Legal 
 Directory of the State and a mass of information use- 
 ful to lawyers. Made for desk use ; size 6^ x 9J 
 inches. 
 
 Opinions of the Profession. 
 
 Hackett & Williams, Poughkeepsie, N. Y. : " We enclose $2.00 for 
 Lawyers' Diary. Have used it from first. // constantly improves." 
 
 B. Gerson Oppenheim, 265 Broadway, New York City : " This Diary is 
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 Le Roy Parker, Buffalo, N. Y. : " * * * I cannot fossbily do witlwut 
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 you can improve it. Enclosed please find check." 
 
 Frost & Manser, Peekskill, N. Y. : " Of course we want your Diary. 
 Couldn't very well get along without it." 
 
 Leon Lewin, 106 and 108 Fulton St., New York City : " Enclosed please 
 find check for $2.00 in payment of your Lawyers' Diary and Directory. I 
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 James C. de La Mare, iio East i2Sth St., New York City : I have found 
 it very useful and beyond doubt it is the best ever issued " 
 
 Peter Cantine, Saugerties, N. Y. : " Send me your Diary when pub- 
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 C. H. & J. A. Young & Terry, 170 Broadway, New York City : " Send 
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 R. F. Wilkinson, Poughkeepsie, N. Y. : " Diary 1895— good. Send me 
 one for 1896." 
 
 William George Oppenheim, 61 Park Row, New York City : " It meets 
 my wants. Send me the Diary." 
 
 Raley & KiLEY, Glens Falls, N. Y. : " Of course we want a Diary. 
 * * * We couldn't get along without it." 
 
 Francis C. Allen, Ovid, N. Y. : " The Diary is the best thing 1 have ever 
 seen of the kind." 
 
 Price $2.25 with name in heavy-faced type, or price of Diary alone $1.75 
 delivered. 
 
Heydecker's Commentary on the Mechanics' Lien 
 Law. 
 
 By Edward L. Heydecker, of the New York 
 City Bar. A logical and thorough treatise on Build- 
 ing Contracts^ specially considered with reference to 
 the Lien Law. It is treated as a separate branch of 
 the law, and the principles involved are collated logi- 
 cally and discussed in order, yet in such a way as to 
 lend itself readily to the needs of the practitioner. 
 This has been the author's study for years. Contains 
 a full set of Forms, Price ^2.50. 
 
 SUPREME COURT, 1 
 Judges' Chambers, > 
 New York. \ 
 
 My Dear Mr. Hevdbcker : 
 
 * * * It is an admirable treatise, and I congratulate you on the reputation it 
 will brine you. * * * Very sincerely yours, 
 
 ROGER A. PRYOR. 
 FACULTY, ) 
 
 University Law School, > 
 Washington Square. | 
 
 New York. 
 Matthew Bender, Esq., 511 Broadway, Albany, N. Y. 
 
 Dear Sir : — I have examined most carefully Edward L. Heydecker's book on 
 Mechanics* Liens, and it is in my judgment, the best work on the subject. I have 
 adopted it as the authority on this subject in my course at the University. 
 
 ^ours very truly, 
 
 CHARLES F. BOSTWICK. 
 
 Cortland, N. Y., Oct. 
 Matthew Bender, Esq., 
 
 511 Broadway, Albany, N. Y. 
 Dear Sir: — Herewith enclosed, find check in payment for Heydecker's Mechan- 
 ics' Lien Law. The work appears to be well arranged, intelligently and carefully 
 prepared, and the meaning 01 the writer briefly, clearly and skillfully expressed. 
 
 It is a pleasure to find a text -book written by an author who thoroughly knows 
 what he intends and desires to say, and expresses his meaning clearl^r, briefly and 
 forcibly. I believe the work is entitled to commendation in all these particulars. 
 
 Yours very truly, 
 
 IRVING H. PALMER. 
 
 * • * The subject has been treated by some writers in this State, but not 
 exclusively in one volume^ or perhaps as thoroughly as has Mr. Heydecker. * * * 
 The author treats the subject as a separate branch of the law in such a logical way as 
 to commend itself to the lawyer. « * * On the whole, the book is one of the most 
 complete on mechanics' lien law we have had occasion to look at. — A merican Lawyer. 
 
 The aim of the author, as stated by him in the preface of the work, has been to 
 treat the subject as a separate branch of the law, not merely to annotate the act in 
 question. With this view he has examined the act and all decisions construing its 
 predecessors, with a view, first, to ascertain the principles of law applicable, and, 
 second, to note the practice to be followed. He has sought to present the whole sub- 
 ject in a logical division which will readily submit itself to the immediate need of the 
 practitioner and enable him, without difficulty, to find all the passages of the act and 
 their judicial interpretations gathered on any point which comes before him. The 
 subject is one of great importance, and since the recent enactment of the codification 
 by the commissioners of statutory revision it has become necessary for the practitioner 
 to fully understand the new act before using any of the old forms or precedents. 
 Mr. Heydecker's work will certainly be of great assistance in enabling him to do so. — 
 Albany Law Journal,