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COMMENTARIES
ON THE LAW OP
PROMISSORY NOTES,
AND
GUARANTIES OF NOTES,
AND
CHECKS ON BANKS AND BANKERS
WITH
OCCASIONAL ILLUSTRATIONS FROM THE COMMERCIAL LAW OF
THE NATIONS OF CONTINENTAL EUROPE.
By JOSEPH STORY, LL. D.,
ONE OF THE JUSTICES OF THE SUPREME COUET OF THE UNITED STATES,
AND DANE PROFESSOR OF DAW IN HARVARD UNIVERSITY.
" Item in his contractibus alter alteri obligator de eo, quod alterum alteri ex bono et
aquo prastare oportet." — Dig., Lib. 44, tit. 7, 1. 2, § 3.
" Tam rigida istius obligations persequutio est inventa, ut Mercatores tanto tutius
fidem aliorum sequi possent." — Heinecc, De Carnb., cap. 5, § 1.
THIRD EDITION.
BOSTON:
CHARLES C. LITTLE AND JAMES BROWN.
M DCCC LI.
Entered according to act of Congress, in the year 1851, by
William W. Story,
in the Clerk's Office of the District Court of the District of Massachusetts.
CAMBRIDGE :
FEINTED BY HOUGHTON AND HAYWOOD.
AUBURN UNIVERSITY
RAIPH BROWN DRAUGHON LIBRARY
AUBURN UNIVERSITY, ALABAMA 36849
-V
ADVERTISEMENT TO THE THIRD EDITION,
The present Edition of the Commentaries on Promissory
Notes contains the illustrations and authorities furnished by the
cases decided in England and America since the publication of
the second Edition. With the view of preserving the original
text, as left by the Author, the new matter now introduced,
except merely the names of additional cases, is marked by
brackets; thus [ ]
CHARLES SUMNER.
Boston, October, 1851.
r4
*<J~
■)
ADVERTISEMENT TO THE SECOND EDITION.
The present Edition of this work is a reprint of the former
edition, except that the manuscript notes left by the Author,
and the late cases arising in the law applicable to Promissory
Notes, have been added by the Editor.
W. W. STORY.
Boston, September 24, 1847.
a*
TO THE HONORABLE
THOMAS H. PERKINS.
Sir,
It has long been 'my intention to ask your permission to
dedicate some one of my works on Commercial Law to you ;
and I know of no one, which could be more appropriate for such
a purpose, than these Commentaries on the Law of Promissory
Notes. Highly as I prize your personal friendship and private
character, I should be sorry to have this dedication deemed a
mere acknowledgment, on my part, of their intrinsic worth. I
rather desire, that it should be deemed a tribute of respect to
your public character, to your noble charities, and to your stead-
fast and elevated principles of action. You justly stand at the
head of our commercial community ; and you have achieved
this enviable distinction by a life of successful enterprise, in
which one knows not which most to praise, the skill, and intelli-
gence, and integrity, which have deserved that success, or the
liberal spirit, and unostentatious hospitality, which have con-
stantly been its accompaniments. I trust, that you have many
years yet left to enjoy the satisfactions and pleasures of such a
life, admitting of such a retrospect. No one beyond the circle
of your immediate family cherishes that hope with more earnest-
ness than myself, being
With the highest respect, most truly
Your obliged servant,
JOSEPH STORY.
Cambridge, June, 1845.
PREFACE.
In pursuance of the plan, which was announced in the Pre-
face to my work on Bills of Exchange, the present treatise on
Promissory Notes is now presented to the public. In the pre-
paration of it, I have been fully convinced of the great utility
and importance, in a professional, as well as practical view, of
separating the doctrines respecting Bills of Exchange from those,
which belong to Promissory Notes. Many of the topics, which
are necessary to be examined and discussed, are indeed, com-
mon to both subjects, and might, therefore, seem fit to be
brought together in a single treatise. But, upon a closer sur-
vey, it will be found, that there are many peculiar doctrines and
principles belonging to each, and many diversities in the applica-
tion of those doctrines and principles to the business and exi-
gencies of commercial life. The formulary, in which many of
the propositions, common to each, are to be laid down, rarely
admits of being enunciated precisely in the same words, or with
the same legal effect ; and not unfrequently the propositions
themselves are required to be stated and illustrated with quali-
fications and limitations in respect to the one, which are either
incorrect, or defective in respect to the other. The obligations
of the drawer of a Bill, and those of the maker of a Note, are
exceedingly different in their nature and extent. And although
it is often said, that the maker of a Note stands in the same
X PREFACE.
predicament as the acceptor of a Bill ; and that the indorser of
a Note stands in the same character as the drawer of a Bill 5
yet these propositions are to be received sub mo do, and with va-
rious qualifications. They rather establish a general analogy
between them, than an absolute identity of legal position and
obligation. The acceptor of a Bill is always presumed to war-
rant the genuineness of the signature of the drawer : but the
maker of a Note does not warrant the genuineness of the signa-
ture of any of the indorsers thereon. The drawer of a Bill is
never supposed to warrant the genuineness of the signature of
any of the indorsers, nay, not of the payee. On the other hand,
the indorser of a Note warrants the genuineness of the signa-
tures of all the antecedent parties on the Note. But it is in
the more minute details and ramification of the doctrines, appli-
cable to each, that we chiefly perceive the importance, nay, the
necessity, of distinguishing carefully between them. The sub-
ject of protest and damages, in cases of Bills of Exchange, finds
no place in the consideration of Promissory Notes ; and even
the subject of notice, which is common to both, may be des-
patched in a few pages in cases of Bills of Exchange, but is
susceptible of almost endless varieties of detail in cases of Pro-
missory Notes. In the French and foreign law, the subject of
Bills of Exchange is commonly discussed at great length, and
generally is extended through a bulky volume ; while the sub-
ject of Promissory Notes is condensed into a few pages, at once
meagre and unsatisfactory. The Commercial Code of France
embraces seventy-six articles on the subject of Bills of Ex-
change ; but . it treats of Promissory Notes in two brief and
vague articles only. How different is this in the law of England.
The works of the most distinguished authors of England treat
of Bills of Exchange in a comparatively concise and general
way, while Promissory Notes occupy a large space, and are fol-
lowed out into the most minute practical results. It may be
affirmed, with some confidence, that, in the Courts of Justice in
England, for every single suit litigated upon a Bill of Exchange,
twenty will probably be found upon Promissory Notes, — so vast
is the circulation, and so extensive and complicated are the
transactions growing out of the latter, which require almost a
PREFACE. xi
daily modification of the law to adapt it to the new exigencies
of business. Hence it is, that Westminster Hall has, durino*
the last century, become the great repository of the law on this
subject ; and the decisions there made, have acquired a com-
manding influence and interest throughout the commercial world.
In no one branch of the law is more fulness in the statement
and exposition of principles required, than in that of Promissory
Notes. I have endeavored, therefore, to bring within the text
all the leading principles, with such illustrations as might serve
to explain and confirm them. In the notes, many of the autho-
rities will be found collected, with such auxiliary comments, and
citations from the opinions of learned Judges and Jurists, as
might give more free and ample information, than the text could
properly supply. I have borrowed largely from the able writers,
who have preceded me, and have also borrowed some materials
from my own former works upon kindred subjects. The latter
course was indispensable in order to make the present work, as
is its design, entirely independent in its structure and complete-
ness from them. Upon a close examination, however, the learned
reader will find, that few passages have been introduced into the
text, which did not require some alterations to adapt them to
the purposes of the present Commentaries ; and they have never
been introduced for the mere purpose of display, or of swelling
the volume.
The subjects of the Guaranties of Notes and of Checks have
been added, as becoming daily of more use and significance in
commercial dealings. The latter is treated briefly, as indeed
few doctrines of a peculiar nature belong to it. The former has
been discussed more at large ; and the materials thereof are
mainly drawn from American jurisprudence, since in England
the contract of guaranty, as applied to Notes, has not, as yet,
furnished many occasions for litigation or decision.
I cannot better conclude this Preface than by a quotation
from the Commentaries of my venerable friend, Mr. Chancellor
Kent, himself at once a fine model of the judicial character,
and an illustrious example of what genius, and learning, and
devotion to all the branches of jurisprudence can accomplish.
" The law concerning negotiable paper," says he, " has at
xii PREFACE.
length become a science, which can be studied with infinite ad-
vantage in the various codes, treatises, and judicial decisions ;
for, in them, every possible view of the doctrine, in all its
branches, has been considered, its rules established, and its limit-
ations accurately defined."
Cambridge, near Boston,
June, 1845.
CONTENTS
Index to Cases Cited
PAGE
XV
CHAPTER I.
Nature and Requisites of Promissory Notes
CHAPTER II.
Competency and Capacity of Parties to Promissory
Notes .......
CHAPTER III.
Rights, Duties, and Obligations of Parties to Promis-
sory Notes ......
SECTION
1-59
60-102
103-115
CHAPTER IV.
Rights, Duties, and Obligations of Parties, on Transfers 1 16 - 180
CHAPTER V.
Promissory Notes. — Consideration, what is sufficient,
and between whom necessary .... 181-197
CHAPTER VI.
Presentment of Promissory Notes for Payment . . 198-256
CHAPTER VII.
Excuses for Non-presentment of Promissory Notes . 257-296
prom, notes. b
xiv CONTENTS.
CHAPTER VIII.
Notices and other Proceedings on the Dishonor of
Promissory Notes 297-369
CHAPTER IX.
Matters of Defence and Discharge of Parties to Pro-
missory Notes . . . . . . . 370 - 453
CHAPTER X.
Of the Guaranty of Promissory Notes . . . 454 - 486
CHAPTER XI.
Checks on Banks and Bankers .... 487 - 503
PAGE
Index .......... 689
INDEX TO CASES CITED.
The References are to the Sections.
Abatu. Holmes
v. Rion
Abbot v. Bailey
Abrahams v. Skinner
Acheson v. Fountain
Ackland v. Pearce
Adams v. Cordis
v. Gregg
v. Jones
■ v. Lindsell
v. Oakes
Aertson v. Cage
Agan v. McManus
139,
192.
Section
423
334
86
122
142
193
399
419
482
246
378
268, 278, 309
133
493
187, 190,
191, 195
315
490
16
59, 147, 468,
472, 476, 480
458
22, 156, 158
American Bank v. Doolittle 425
Amory v. Mery weather 190
Ansbaugh v. Gearhart 59, 468
Ancher v. Bank of England 142
Anderson v. Cleveland 201, 419
v. Drake 236, 265
v. Robson 110
Aldridge v. Turner
Alexander v. Burchfield
Allaire v. Hartshorne
Allen v. Edwardson
v. Keeves
v. Mawson
v. Rightmere
471,
Allnutt v. Ashenden
Alves v. Hudgson
Anderton v. Beck
Andrews v. Boyd
Section
203
148, 281, 357
v. Franklin 27, 28
v. His Creditors 155
v. Pond 155-157,165-
167, 178
Anson v. Bailey
Anthon v. Fisher
Antoine v. Morshead
Appleby v. Biddolph
Arbouin v. Anderson 109
276, 346
96
94, 96
22, 27
113, 196,
197
Armistead v. Armistead 230
Armitt v. Breame 45
Armstrong v. Percy 262
Arnold v. Redfern 167
v. Revolt 87, 124, 306
v. The Mayor, &c. of
Poole 74
Arundel Bank v. Goble 415
Ashly v. Ashly 12
Aspinwall v. Meyer 74, 381
Astor v. Benn 339
Atkins v. Owens 402
Atkinson v. Manks 17
— v. Ritchie 259
Attorney-General v. Life and
Fire Ins. Co. 74
Atwood v. Griffin 37, 138
Aubert v. Walsh 106
Austin v. Boyd 58, 476
XVI
INDEX TO CASES CITED.
Section
Averill v. Hedge 430
. v. Lyman 425
Avery v. Pixley 213
v. Stewart 220
Ayer v. Hutchins 190
Aylett v. Ashton 85
Aymar v. Sheldon 339
Avrey v. Davenport 422
v. Fearnsides 18, 20
Bank of Rochester v.
B.
Babcock v. Bryant
Bachellor v. Priest
Backhouse v. Harrison
Backus v. McCoy
v. Shipherd
460
195, 246
382
264
271, 272
415, 416
133, 459, 469
480
287
v. Briggs58, 438, 467, 468,
473, 476
416
77
111, 168, 243
335
128, 480
69, 71
Badnall v. Samuel
Bailey v. Freeman
v. Hazard
Baker v. Birch
v. Flower
Baker v. Lovett
v. Wheaton
Baldwin v. Richardson
Ballingalls v. Gloster 121
Ballou v. Talbot
Bancroft v. Hall 226, 312, 314, 319,
324 "
Bangor Bank v. Treat
Bank (Oxford) v. Haynes
(Springfield) v. Merrick
(Mechanics' & Farmers')
338
34
59
17
v. Schuyler
— (Merchants') v. Spicer
— (Bangor) v. Treat
— of Alexandria v. Swann
10
34
57
325,
331
— of America v. Wood-
worth 232
— of Chenango v. Root 239, 255,
308, 327
— of Columbian. Lawrence 235,
312, 313, 320, 322 - 325, 328, 338,
340, 341
v. Patterson
Administrator
— of Geneva v.
— of Ireland v.
Howlett
Beresford
of Manchester v. Slason
— of North America v. Mc-
Knight
— of Orleans v. Smith
74
343
184,
423
129,
343
297
326
Bowen
Gould
of Salina v. Babcock
of Sandusky v. Scoville
of the Metropolis v. New
Section
73
349
195
195
England Bank 186
— of Troy v. Topping 186
— of U. States v. Carneal 234,
243, 319, 343, 348, 354
v. Corcoran 322
v. Dandridge 74
v. Donally 155
v. Dunn 148
v. Hatch 312,
413, 415, 422, 423
v. Merle 324
-«.U.S. 246,452
v. Smith 228
of Utica v. Bender 335, 344,
347
v. Davidson 316,
336, 344
. v. De Mott 316, 335,
343-345
v. Phillip 316, 335,
344
v. Smith 126, 247,
297, 343
of Washington v. Triplett
169, 224
Banks v. Eastin
Barber v. Backhouse
126,
Barclay v. Bailey
Barber v. Hodgson
v. Mechanics'
Company
■ v. Parker
Barlow v. Bishop
v. Broadhurst
187,
246
190
226
259, 260
Fire Ins.
69
271
87, 124, 306
20
Barough v
Barrows v
Barnard v. Planters' Bank 297
Barnes v. Bartlett 265
Barnett v. Brandao 186,195
Barnsley v. Baldwin 27
Barnwell v. Mitchell 316, 335
White 190, 491
Lane 467
Barton v. Baker 241
Bartrum v. Coddy 281
Bartsch v. Atwater 168, 391
Bateman v. Joseph 316, 335
Bates v. Coit 362
Bathe v. Taylor 37 a
Baxter v. Duren 118
v. Lord Portsmouth 101
v. Little 190
Bay v. Coddington 195
Bayard v. Shunk 119, 389
INDEX TO CASES CITED.
XV 11
Section
Bayon v. Vavassour 159
Beard v. Webb 85
Beardesley v. Baldwin 22
Beardsley v. Wardner 419
Beardmare v. Cruttenden 427
Beauchamp v. Cash 349, 351
Bebee v. West Branch Bank 115,
419
Beck v. Robley 180
Beckwith v. Angell 459, 460, 474,
476, 477, 480
U.Carroll 197
: v. Sibley 411
v . Smith 347
Bedford v. Deakin 416, 425
Beeching v. Gower 231, 500
Belden v. Lamb 316
Bell v. Frankis 358
v. Gardiner 361
v. Ingestre 120 a
v. Quinn 189
Bellasis v. Hestor 211
Bellievre v. Bird 235
Belmont Bank v. Patterson 237,238
Bender v. Fromberger 264
Bennett v. Farnell 39, 132
v. Jenkins 264
— v. Maule 423
Bennington v. Dinsmore, 33
Berkshire Bank v. Jones 148, 234,
243, 271, 272
Bernard v. Barry 171
v. Graves 389
Berry v. Usher 444
Besancon v. Shirley 18
Betts v. Kimpton 88
Beveridge v. Burgis 335
Beverly v. The Lincoln Gas
Light and Coke Company 74
Bewley v. Whiteford 467
Bigelovv v. Willson 211
Bignold v. Waterhouse 308
Bilbie v. Lumlev 362
Bill v. Porter 104
Birchard v. Bartlet 58
Bishop v. Hayward 151, 47S, 480
Bishop of Derry v. Chambers 41,
51
Bizzell v. Williams 18
Blackie v. Pidding 451
Blackwell v. Justice of Lawrence
County 264
Blakely v. Grant 138, 147, 148,
316, 335, 359
Blanchard v. Hilliard 211
v. Russell 157, 172
Blackenhagen v. Blundell 33
b*
Bland v. Ryan
Blesard v. Hirst
Block v. Bell
v. Walker
Section
142
359, 361, 362
16
6
184, 187
Blogp- v. Pinkers
Boddington v. Schlencker 493
Boehm v. Sterling 178, 180,488-
491, 493, 494
Boggs v. Lancaster Bank 195
Bolton v. Dugdale 20
• v. Puller 402
Bonafous v. Walker 265
Bond v. Farnham 281, 286, 357
V. Warden 493
Booth v. Franklin 231
Borradaile v. Lowe 274, 275, 362
Bosanquet v. Dudman 178, 186, 195
Boultbee v. Stubbs 252, 286, 427
Boultonu. Welsh 350, 351, 353
Bowen v. Morris 69
Bowers v. Hurd 184
Bowes v. Howe 203, 500
Bowie v. Duvall 228
Bowyer v. Bampton 192, 193
Boyce v. Edwards 482
Boyd v. Brotherton 37 a
— - v. Cleveland 275, 379, 362,
364
v. Plumb 73
Bracey v. Carter 157
Brackett v. Norton 155
Bradford v. Corey 146
v. Farrand 169
v. Hubbard 413, 422
Bradlee v. The Boston Glass
Manufactory 70
Bradley v. Davis 348
Bragg v. Greenleaf 126
Braham v. Bubb 22
Braithwaite v. Gardiner 80
Bramah v. Roberts
Braman v. Hess
Brandon v. Nesbitt
Bray v. Had wen
v. Manson
186, 191, 195
193
96
320, 324, 331
417
Brealey v. Andrews 362
Breed v. Hillhouse 275, 480
Brent v. Bank of Metropolis 314
v. Ervin 111
Brent's Ex'rs v. Bank of Me-
tropolis 234, 235
Brentzer v. Wightman 207
Brett v. Levett 287
Brewster v. McCardel 48
Bridge v. Sherborne 224
Bridges v. Berry 104, 201, 203
Brigham v. Marean 126
xvm
INDEX TO CASES CITED.
Section
Brinkley v. Going 452
Bristol v. Sprague 195
v. Warner 27, 181
Britten v. Webb 151, 362
Brockway v. Allen 69
Bromage v. Lloyd 120 a
Brooks v. Elkins 12, 14
v. Mitchell 491
. — v. Stuart 425
Broughton v. Manchester Water
Works Co. 74
Brown v. Butchers' & Drovers'
Bank 121
v. Davis 178, 190, 488, 489
v. De Winton 12, 16
, Ex parte 491
v. Gilman 1, 14
■ v. Harraden 6
v. Judrell 101
v. Knowley 117
■ v. Langley 291
v. Lusk 224
v. Maffey 288, 292
v. Noyes 229
v. Thornton 158
V. Turner 190
v. Williams 423
Browne v. Carr 413
Brovvnell v. Bonney 359, 364
Browning v. Kinnear 335
Brownson v. Appleby 186
Bruce v. Bruce 118, 135
v. Westcott 12, 37 a
Bruen v. Marquand 419
Brush v. Reeves 132
v. Scribner 195
Boucher v. Lawson 155
Buckley, Ex parte 57, 69
Buckmaster v. Grundy 264
Bullard v. Bell 501
Buller v. Crips 4, 6, 26
Bullet v. Bank of Pennsyl. 111,448
Bullitt v. Scribner 6
Burbridge v. Manners 180, 320, 384
Burchell v. Slocock 3, 9
Burdick v. Green 104, 438
Burghart v. Hall 77
Burke v. McKay 297
Burnham v. Webster 366
Burrill v. Smith 118, 135, 378, 380,
413, 427
Burroughs Moss 87, 124, 126, 178,
190, 306
Burrows v. Hannegan 312, 339,
357
156, 168
193
— v. Jemino
Bush v. Livingston
Section
Bussard v. Levering 220, 320, 324
Butts v. Dean 438
Caldwell v. Cassidy
Calliham v. Tanner
Callow v. Lawrence
Campbell v. Hudgson
v. Humphreys
228
413, 420
180
24
452
Camidge v. Allenby 117, 119, 201,
203, 389, 493, 500
Campbell v. Butler 473, 476, 477
Canal Bank v. Bank of Albany
361, 379, 380
Canfleld v. Vaughan 147, 148, 471
Cannon v. Gibbs 460
Carleton v. Brooks 17
Carley v. Vance 228
Carlos v. Fancourt 22, 25
Carlo w v. Kinealy 28
Carmena v. Bank of Louisiana 343
Carnegie v. Morrison 425, 482
Carr v. Shaw 173
Carrol v. Blencow 86
Carroll v. Upton 171, 236, 316
Carson v. Bank of Alabama 320
Carstairs v. Rolleston 423
Carter v. Saunders 64
Carver v. Warren 467, 468
Carvick v. Vickery 125, 239, 379
Gary v. Bancroft 437
■ v. Gooding 444
Cash v. Kehnion 166, 397
Castle v. Burditt 211, 212
Caswell v. Coare 262
v. Wendell 264
Catskill Bank v. State 343, 344
v. Messenger 409
Caudell v. Shaw 85
Caunt v. Thompson 287, 295, 348,
367
Cayuga Countv Bank v. Bennett
320, 322
— v. Dill 275
v. Hunt 241
v. Warden
349, 354
Cecil v. Plaistow 427
Central Bank v. Davis 138, 148, 270,
272, 360, 380
Chadwick v. Allen 9, 12
Chaffee v. Jones 58
Chalmers v. Lanion 17S, 191
Chamberlain v. Hopps 45
Champion v. Plumer 33
■ v. Terry 445, 449
INDEX TO CASES CITED.
XIX
Chandler v.
v.
Chanoine v.
Chapcott v.
Chapman v.
v.
Herrick
Mason
Fowler
Curlewis
Annett
Black
Section
409, 410
268
301,
316,
303
334
359
193
v. Durant
v. Keane
v. Lipscombe
v. Robertson
Marsden
Cairnes
Charles v.
Chartres v
Chateau v. Webster
Chaters v. Bell
Chaworth v. Beech
Cheetham v. Ward
Chenot v. Lefere
Chewing v. Sate wood
Chick v. Pilsbury
Childs v. Monins
Church v. Barlow
v. Clark
302,
316,
155,
British Guiana Bank
348
104
303
335,
345
161
194
168
309
139
121
425
39
348
324
63
326
228
321,
246,
226,
v. Imperial Gas Light
and Coke Co.
City Bank v. Cutter
Claridge v. Dalton
Clark v. Blackstock
v. Cochran
v. Eldridge
v. Farmer
v. King
v. Martin
v. Percival
v. Pigot
v. Reed
v. Ricker
v. Sigourney
420,
74
297
423
57
158
348
55
17
6
20
137, 246
111
190
120, 120 a
ev. Devlin 411,413, 419
■, In the matter of, 57. 69
■v. Sharpe 316,335,346
Clay v. Oakley 71, 312, 320, 322
Clayton v. Gosling
Clegg v. Cotton
v. Levy
Clerk v. Pigot
Cleveland v. Stewart
Clode v. Bayley
Closson v. Stearns
Clowes v. Chaldecott
Clute v. Small
Cockell v. Gray
Cockerell v. Barber
Cockrill v. Kirkpatrick
Cocks v. Borradaile
126,
29,51
289
158
142
70
326
11
320
37 a
161
391, 396
18
139
Section
Cockshott v. Bennett 427
Coddington v. Davis 271, 272, 297
357, 364
Coggill v. American Exchange
Bank 39, 379
Cole v. Blake 452
v. Sherwood 69
Colehan v. Cooke 22, 27, 32
Collott v. Haigh 418, 419, 422, 423
Collins v. Butler 236, 238, 241
v. Martin 181,191
Collis v. Emett 39
Colman v. Sayer 211, 224
Colt v. Noble 326
Combe v. Woolf 485
Commercial Bank v. Cunning-
ham 419, 422, 423
■ v. Pickering 422
of Natchez v.
King 324
v. Wood 128
Commonwealth v. Manley 87
Cone v. Baldwin 197
Connor v. Bellamont 166
v. Martin 124, 306, 375
Conroy v. Warren 190, 489, 490,
492, 493, 497, 498
Consequa v. Fanning 399
v. Willings 166
Cooch v. Goodman 187
Cook v. Bradley 362
Cooke v. French 352
Coolbrorth v. Purinton 12
Cooley v. Lawrence
Coolidge v. Payson.
.- v. Ruggles
Cooper v. Davies
v. Earl
v. Meyer
v. Smith
195
22
452
66\S
39, 132
33, 485
Coore v. Callaway 246
Corney v. Da Costa 281
Cornu v. Blackburn 96
Cornwall v. Gould 411
Cory v. Scott 268, 292, 356, 359,
362
Cotes v. Davis 87, 306
Cowper v. Smith 485
Cox v. Strode 264
Crawford v. Millspaugh 410, 425
Crawshaw v. Collins 125
Creamer v, Perry 272, 275, 280,
282, 363
Critchlow v. Parry 135, 380
Crocker v. Getchell 306 a
Croghan v. Conrad 411
Cromwell v. Hynson 317
XX
INDEX TO CASES CITED.
Crook v. Jadis
Crosse v. Smith 309,
Crossen v. Hutchinson
Crozer v. Chambers
Cruchley v. CJarence 37,
Cruchly v. Mann
Cruger v. Armstrong 190
Crumpston v. McNair
Crutchers v. Wolfe
Cuming v. French
Cummings v. Gassett
Cunningham v. Soules
Curtis v. Ingham
v. Richards
Cushman v. Haynes
Cutter v. Powel
Cuyler v. Cuyler
v. Nellis
v. Stevens
D.
Dana v. Sawyer
Dangerfield v. Wilby
Daniel v. Andrews
Daniels v. Cartony
Darbishire v. Parker 258
Section
382
312, 315,
322, 324
241, 286
134, 476
37 a, 122,
138
37, 37 a
,488, 492
497, 498
59, 72,
472
361
278
12
71
104
14
20
259
408
335
219,341
226
104
6
193
, 319,320,
Darling v. March
Darnell v. Williams
Daubuz v. Morshead
David v. Ellice
Davies v. Wilkinson
Davis v. Dodd
v. Williams
324, 325, 337, 338
364
187, 190
96
425
20
108, 445, 446
343
Dawkes v. Lord Deloraine 25, 41
Day v. Nix 187
Dean v. Hall 59, 459, 472 - 474,
476, 477, 480, 484
v. Newhall 409, 425
V. Richmond 85, 88
De Bergareche v. Pillin 234
Debarry v. Darnell 18
Deblieux v. Bullard 321
De Forrest v. Frary 22
De Gaillon v. L'Aigle 86
Dehers v. Harriot 16, 224
De la Chaumette v. Bank of
England 172, 175
De la Courtier v. Bellamy 45
De Launey v. Mitchill 190
Delegal v. Naylor 396
Deminds v. Kirkman 325
Section
389
280, 364
190
104
155, 157
86
384
310
166
133,457,459
410
227
201, 419
350
26, 29
Dennie v. Hart
Dennis v. Morrice
Denniston v. Bacon
Descadillas v. Harris
De Sobry v. De Laistre
Derry v. Duchess of Mazarine
De Silva v. Fuller
Devaynes v. Noble
De Wolf v. Johnson
v. Reland
Dezeng v. Bailey
Dickenson v. Bowes
Dingwall v. Dunster
Dixon v. Elliott
v. Nuttall
Dobree v. Eastwood 303, 323, 328,
330, 332
Doe v. Beavan 245
Dole v. Gold 350, 354
v. Weeks 132
v. Young 457, 460
Dollfris v. Frosch 246, 452
Don v. Lippman 164, 165
Donnelly v. Howie 275, 358, 362
Douolass v. Howland 59, 458, 460,
467
v. Reynolds 460, 472
Dowe v. Schutt 190
Down v. Hailing 178, 197, 382,
489, 490, 493
Downer v. Remer 343
Downing v. Backenstoes 3
Drake v. Elwyn 72
Draper v. Jackson 87
Drayton v. Dale 80, 101
Drury v. Macaulay 21
v. Strong 264
Dubois v. Del 69
Du Costa v. Cole 391
Dugan v. U. States 127, 246, 452
Duhammel v. Pickering 96
Duke v. Dow 24
Duncan v. McCullough 237
. — v. Scott 188
v. Sparrow 342
v. Young 337
Dungannon v. Hackefct 399
Dun lap v. Harris 6
Dunn v. O'Keeffe 178
Durnford v. Patterson 224
Dusenbury v. Ellis 71
Dutchess Cotton Manufacturing
Company v. Davis 3
Duvall v. Farmers' Bank 281
D wight v. Scovil 294
Dyer v. Hunt 155, 156
Dyke v. Mercer 409
INDEX TO CASES CITED.
XXI
E.
Section
Eagle Bank v. Chapin 321, 324
of New Haven v.
Smith, 118
Easley v. Crockford 197
East India Co. v. Tritton 135, 380
Eastwood v. Kenyon 185
Eaton v. Bell 63, 65
Eccles v. Ballard 132
Edie v. East India Co. 37 &, 138,
142, 143, 139
Edis v. Bury
Edmonds v. Cates
Edwards v. Davis
v. Dick
v. Jones
Egg v. Barnett
Eichelberger v. Finley
Ekins v. East India Co.
Elford v. Teed
Elliot v. Cooper
v. Sleeper
Ellis v. Brown
V. Ellis
v. Galindo
v. Wild
166,
16
323, 352
85
193
191
106
498
396,
399
226, 235
34
104
134, 476
14, 17
420
118
423, 426
Ellison v. Dezell
Emerson v. Providence Hat Man-
ufacturing Company 69, 4 38
Emly v. Lye 117, 119,
389
Emmott v. Kearns 458, 459,
465
England, Bank of, v. Newman 118
English v. Darley 401,414,415,
416. 420, 423,427
Eyre v. Barthrop
Section
424
Esdaile v. Sowerby 241,
Etheridge v. Binney
Etting v. Brinkerhoff
v. Schuylkill Bank
Evans v. Cramlinp-ton
v. Drummond
v. Evans
v. Gee
v. Gray
v. Kymer
v. Smith
v. Underwood
v. Wells
Everson v. Carpenter
Exchange and Banking Co
N. Orleans v. Boyce
Exon v. Russell
252, 286,
302
72, 73
488, 497
330
125, 146,
375, 377
425
304
138
168
190
195
27
69
78
of
343
49
F.
127
72
85
111, 243
Fairfield v. Adams
Faith v. Richmond
Faithorne v. Blaquire
Fales v. Russell
Fanning v. Consequa 166
Farmers' and Mechanics' Bank
v. Day 359
Farnum v. Fowle 241, 286
Fayle v. Bird 227, 235
Fear v. Dun lap 134, 474, 476
Feeter v. Heath 71
Feise v. Randall 427
Fenn v. Harrison 117, 118
Fenton v. Goudry 235
Fentum v. Pocock 418,419,422,
423
Fenby v. Pritchard 195
Fenn v. Harrison 118
Ferguson v. Flower 159
Ferris v. Bond 22, 34
Fergusson v. Children 371
Field v. Nickerson 129
Fink v. Cox 184
Firth v. Thrush 316, 335, 359, 362
Fisher v. Evans 316, 335
v. Leslie 14
v. Pomfrett 36, 142
Fishmongers' Company v. Rob-
ertson 74
Fitch v. Sutton 410
Fitler v. Morris 316
Fitzgerald v. Williams 269
Fleckner v. Bank of U. States 246
Fleming v. Simpson 188
Flemington v. Smothers 167
Fletcher v. Bank of U. States 127
v. Froggatt 362
Flight v. McLean 16
Flindt v. Waters 94
Flint v. Day 476
Foden v. Sharp 228
and Slater v. Sharp 228
Fogg v. Sawyer 119, 389
Foler v. Givens 458
Folger v. Chase 121, 127, 151, 243
Fonda v. Van Home 77
Foote v. Brown 460
Forrey v. Baxter 104
Foster v. Barney 207, 480
v. Fuller 63
Fotheringham v. Price 275
Fowell v. Forrest 509
Fox v. Frith 65
XX11
INDEX TO CASES CITED.
Section
Francis v. Wigswell 85
i v. Wilson 263
Franklin v. Vanderpoel 498
v. Verbois 238, 312
Frazer v. Harvie 359
Freakley v. Fox 444
Free v. Hawkins 24, 25, 135, 148,
291, 367
Frederick v. Cotton 36
Freeman v. Boynton 111,243,246
247, 255, 265, 280, 362
French v. Price 425
French's Executors v. Bank of
Columbia 295, 357
Fry v. Hill 208
v. Rousseau 18
Frye v. Barker 419
Fuller v. McDonald 148, 171
Fullerton v. Bank of U. S. 234,243
Furniss v. Gilchrist 74,1156,178,
190, 195
Furze v. Sharwood 72, 73, 352, 353
G.
Gadcomb v. Johnson 128
Gaitheru. Farmers' and Mechan-
ics' Bank of Georgetown 193
Gale v. Kemper 228, 243
v. Kemper's Heirs 234
Galway v. Matthew 57, 73
Galpin v. Hard 264
Gait v. Galloway 378
Gamblin v. Walker 6
Garford v. Bradley 88
Garland v. The Salem Bank 241,
275, 280, 361
Garner v. Garner 85
Garnett v. Woodcock 226
Goscoigne v. Smith 187
Gaters v. Madeley 306
Geary v. Physic 11, 34, 121
Geill v. Jeremy 320, 324
George v. Surrey 121
Gibb v. Mather 227, 229
Gibbon v. Coggon 362, 364
v. Scott 148
Gibbs v. Merrill 78
Gibson v. Minet 33, 120
v. Powell 121
Gilbert v. Dennis 111,243
— v, Nantucket Bank 132
Giles v. Bourne 45
Gill v. Cubett 197
Gillard v. Wise 242
Gillett v. Averill 234
Gist v. Lybrand 343
Section
Gladstone v. Hadwen 188
Glassington v. Rawlings 211
Glenn v. Thistle 322, 362
Gloucester Bank v. Worcester 419
Glynn v. Baker 55
Goldsmith v. Bland 315
Goddin v. Shipley 165, 215
Goodall v. Dolley 275, 278, 361
Goodman v. Harvey 109, 113, 196
197, 382
Goodnow v. Smith 425
v. Tyler 438
Goodsell v. Myers 78
Gore v. Brazier 264
Gorgerat v. M'Carty 246
Gorgier v. Mieville 55
Goss v. Nelson 26, 28
Gould v. Armstrong 192
v. Robson 413, 414, 422
Goupy v. Harden 65, 146, 208
Gowan v. Jackson 208, 308
Grafton Bank v. Flanders 71
Graham v. Moore 305
Granden v. Le Roy 194
Grand Bank v. Blanchard 320
Granite Bank v. Ayers 238, 286,
312, 313
Grant v. Healey 399
v. Vaughan 6, 36, 113,
137
— ■ — v. Welchman 187
Gray v. Cooper 80
v. Donahoe 18
Green v. Boaz 36
v. Croft 452
v. Davis 12
v. Deakin 73
v. Dodge 59, 472
v. Drebilbis 29
Greenwood v. Curtis 157, 438
Gregory v. Fraser 188
v. Paul 86
Grew v. Bevan 188
v. Burditt 190
Griffin v. Goff 275, 287, 361
Griswold v. Waddington 94, 100
262
Grosvenor v. Stone 334
Groton v. Dallheim 241
Grover v. Grover 128
Grugeon v. Smith 352, 353
Guernsey v. Burns 126
Guidrev v. Vives 468
Guild y". Eager 180
Gunson v. Metz 275
Guy v. Harris 14
Gwinnell v. Herbert 128, 129
INDEX TO CASES CITED.
xxm
H.
Section
Haddock v. Bury
v. Murray
Hagedon v. Reid
Hague v. French
Haigh v. Brooks
Hale v. Burr
Hall
v. Cole
v. Farmer
v. Franklin
v. Hadley
Hale
Newcomb
469
Rogers
Smith
Wilcox
v. Holmes
Lane
v.
V.
V.
V.
V.
362
243
297
45
465
237, 253
415
457, 459, 472
76
485
197
133, 138, 147,
473, 476, 477, 480
460
57
423
415
191
Hallett
Haly v.
Halstead v. Mayor of New York 74
Hammett v. Wyman 425
Hammond v. Dufrene 498
v. Messenger 128
Hampton v. Speckenagle 71
Handly v. Rankin 296
Hank v. Crittenden 460
Hansard v. Robinson 106, 107, 201,
243, 389, 445, 446, 449, 450
Hanson v. Buckner 264
Harker v. Anderson 488-490,
498
Harley v. Thornton 119, 389, 502
Harris v. Clark
v. Robinson
Little
Harper v
Harrisburg Bank v. Meyer
Harrison v. Close 409,
v. Courtauld
v. Ruscoe
Hart v. Green
v. Long
Hartford Bank v.
Barry
Stedman
Hartley v. Case
v. Wilkinson
Harvey v. Archbold
Haslett v. Ehrick
Hatch v. Trayes
Hatchett v. Baddeley
Haugh v. Gray
Haussoullier v. Hartsinck
Hawes v. Armstrong
Hawken v. Bourne
Hawkes v. Salter
v. Saunders
Havens v. Huntington
239, 255
316
71
190
410, 425
418, 423
306 a
229
235, 362
127, 246
320, 324
348 - 352
23
167
411
51
85, 86
459
26
458
72
324, 331
* 185
178, 180
Section
Haydock v. Lynch 25
Hayes v. Warren 185
Haynes v. Birks 320, 326
Hazelton Coal Co. v. Ryerson 340,
343
Healy v. Gorman 166, 167
Heaton v. Hubbard 480
Hedger v. Steavenson 352, 353
Hefford v. Morton 413
Hemenway v. Stone 57
Henderson v. Appleton 500
v. Benson 192, 193
Henry v. Jones 211
Hensdale v. Bank of Orange 111
Hepburn v. Toledano 236
Her ford v. Wilson 362
Herrick v. Carman 133, 473, 476,
477, 480
Herring v. Dorell 362
Hestres v. Petronic 309
Hewet v. Goodrick 413
Heylyn v. Adamson 4, 121
Heywood v. Perrin 49
v. Watson 186, 195
v. Wingate 36 a
Hicks v. Brown 168
v. Duke of Beaufort 359, 364
Higham v. Ridgeway 297
Hill v. Halford 22
v. Heap 293
v. Lewis 128, 477, 480
v. Varrell 316, 344, 359
Hills v. Bannister 63, 69, 70
Hilton v. Fairclough 323
v. Shepherd 258, 324, 331
Hine v. Allely 238, 315
Hinsdale v. Bank of Orange 448
Hitchcock v. Humphrey 460
Hoare v. Clute 438
v. Graham 25, 148, 150,
291, 367
Hodges v. Adams 139
v. Gault 317
v. Steward 121
Hodgkins v. Bond 467
Hogaatt v. Bingaman 322
Holbrow v. Wilkins 284, 485
Holliday v. Atkinson 51, 79, 181,
184, 187, 362
Holeman v. Hobson 191
Holmes v. Blogg 77
v. Be Camp 104, 438
Homes v. Smith 195, 220
Hone v. Allen 186
v. Folger 186
Hooper v. Williams 16
Hopes v. Alder 275, 364
XXIV
INDEX TO CASES CITED,
Hopkins v. Liswell
v. Mehaffy
Hopkirk v. Page
Hordern v. Dalton
Horford V. Wilson
Hornblower v. Proud
Home v. Redfearn
Hosford v. Nichols
Hough v. Gray 58, 59, 457, 468,
470, 472, 473, 476, 477, 480
Section
274, 275,
362
69,71
262, 337
338
364
186
12
166, 167
v. Barton
Houghton v. Page
Houlditch v. Cauty
Houriet v. Morris
How y. Bigelow
Howard v. Chapman
v. Ives
v. Oakes
106
155, 156, 166,
167
352, 353
98
88
389
316, 321, 326,
327, 331, 335
88
Howden v. Haigh 421
Howe v. Bowes 237, 238, 241, 315,
500
v. Nickels
Howell v. Jones
v. Wilson
Hubbard v. Jeckson
■ — v. Troy
Hubbly v . Brown
Hudson v. Granger
Hull v. Blake
v. Pilfield
Hunt v. Adams
v. Boyd
v. Brigham
v. Brown
460
485
380
180
297, 324
413
249
168
422
57-59, 133, 466,
467, 473, 480
104
419, 422
459, 470, 372,
478
. v. Fish 195, 343
v. flolden 213
v. Massey 79
v. Wadleigh 241
Hunter v. Jeffery 39,132
Hurd v. Little " 411
Hussey v. Freeman 278, 365
Hutchins v. Olcutt 104
Hutz v. Karthause 307
Hyde v. Price 85
Ilsley v. Jewett 438
Innes v. Dunlap 174
Ireland v. Kipp 312-314, 320, 322,
323, 343
Jacaud v. French
Jackman v. Mitchell
Jackson v. Davidson
v. Lomas
v. Newton
v. Richards
v. Stackhouse
v. Warwick
Jacoby v. Lausatt
James v. Atkins
v. Badger
v. Catherwood
Jameson v. Swinton
Section
402, 425
427
427
427
201
241
410
187, 190
265
138
422
158
226, 302,
303
Jarvis v. St. Croix Manufact.
Co. 295
. v. Wilkins 458
v. Williams 13
Jay v. Warren 415
Jeffrey v. McTaggart 174
Jenkins v. Reynolds 458, 459
Jennings v. Thomas 476
Jennison v. Stafford 181
Jenny v. Herle 25, 27
Jerome v. Whitney 17
Johnson v. Johnson 438
v. Summer 265
v. Weed 438
v. Wilmarth 459
Johnston v. Searey 271
Jolly v. Young 213
Jones v. Darch 78, 80
v. Fales 17, 18, 111, 128,
241, 360
v. Fort 246, 247, 249,
305
v. Hibbert 190, 191
v. Jones 51
v. Kennedy 438
v. Kennison 422
v. Lewis 343
v. Radford 239
v. Ryde 118, 135
V.
Savage
274, 275,
361
V.
Thorn
125
v.
Wardwel!
328, 346
V.
Witter
128
Josceline v. Laserre 16, 25, 27
Josselyn v. Ames 58, 128,459,473,
474, 477, 480
Judah v. Harris 18
Juniata Bank v. Hale 241
INDEX TO OASES CITED.
XXV
K.
Section
Kasson v. Smith 190
Kay v. Duchess 86
Keane v. Boycott 77
Kearslake v. Morgan 104, 438
Keith v. Jones 18
Kemble v. Mills 270, 284, 369,
460, 489
Kennard v, Knott 414
Kennedy v. Gouveia 69
v , Motte 432
Kent v. Lowen 186
Kenworthy v. Hopkins 428
Kerrison v. Cooke 418,422
Ketchell v. Burns 147, 468, 470,
472,480, 484
Kilgour v. Miles 220
Kimball v. Huntington 12, 14, 59,
128, 472
King v. Baldwin 414
v. Bickley 352, 353
v. Box 41
v. Hoare 409, 410
v. Holmes 235
v. Thorn 63
Kingston v. Long 22
Kirby v. Sisson 448
Kirk v. Blurton 72
Kirshaw v. Cox 37 a
Kitchen v. Bartsch 102
Knight v. Hunt 190
v. Pugh 109, 196
■ v. Putnam 193
Konig v. Baynard 388
Kramer v. M'Dowell 322
V. Sandford 281
Kuf h v. Weston 328, 338, 340
L.
Labron v. Woram
Lacon v. Hooper
Lacy v. Kinaston
Ladd v. Kenney
Lafitte v. Slatter
Lambert v. Chiselm
v. Oakes
v. Pack
. v. Taylor
Lamourieux v. Hewitt
Lane v. Schutz
v. Steward
Lang v. Gale
Langdale v. Trimmer
Lanusse v. Barker
PROM. NOTES.
473,
472,
148,
476, 480
161, 212
409
362
288
316
380
380
130
133, 147,
480, 484
85
272, 366
161, 212
320, 326
399
Section
Lanusse v. Massicot 238, 320
Lapice v. Smith 166
Laporte v. Landry 278, 312, 320,
322, 365
Laugher v. Brefitt 265
Lawrence v. Dougherty 17
v. Langley 241
v. M'Calmont 284
v. Piston 275, 362
Lawrason v. Mason 482
Law v. East India Company 427
Laxton v. Peat 418, 419, 422,
423
Lazarus v. Shearer 69, 71
Leach v. Blow 70
Leavitt v. Putnam 178, 180
Lechmere v. Fletcher 40Q, 421
Ledger v. Ewer 187, 190
Lee v. Levi 415
Lee Bank v. Spencer 287
v. Muggeridge 185
v. Wilcocks 396
v. Zagury 178
Leeds v. Lancashire 23
Lefevre v. Loyd 65
Leffingwell v. White 148, 161, 271.
Legg v. Legg
Legge v. Thorpe
Leggett v. Raymond
Lehman v. Jones
Leicester v. Rose
Lenox v. Prout
v. Roberts
357
88
359, 498
480, 484
237
427
415, 419
Leonard v. Gary
265, 324, 325
331
148, 274, 275,
357, 359, 361
v. Vredenburgh 133, 457,
459, 472, 473
v. Walker 51
Leroy v. Johnson 72
Le Roy v. Crowninshield 169
Lester v. Garland 211
Leiber v. Goodrich 18
Levy v. U. States Bank 379
Lewis v. Brewster 460
v. Burr 219
v. Cosgrave 187, 190
v. Gompertz 352, 353
v. Jones 426, 427
v. Lee 85
v. Ord 27
v. Owen 168
v. Peake 262
V. Petavin 111, 448
Lickbarrow v. Mason 191
Liggett v. Bank of Pennsylvania 411
XXVI
INDEX TO CASES CITED.
Section
Lio-htbodv v. The Ontario Bank 119,
3 389
Lincoln and Kennebec Bank v.
Page 271
Lindenberger v. Beall 320
Lindo v. Unsworth 220, 320, 321
Lindon v. Hooper 265
Lindus v. Brad well 87
Little v. O'Brien 125, 138, 246
v. The Phenix Bank 489,
492, 497, 498
Littlefield v. Shee 185
Lloyd v. Scott 193
Lobdell v. Niphler 413,422
Lockwood v. Crawford 207, 242,
299, 348, 349, 354
Lodge, v. Dicas 425
v. Phelps 176
Long v. Bailie 106, 451
v. Colburn 69, 71
Longley v. Griggs 133
Lonsdale v. Church 263
Lord Gallway v. Mathew 188
Louisiana State Bank v. Ellery 309
v. Hennen 332
v. Rowel 312,
320, 322
Insurance Co.
v. Shamburg 235, 236
Loveland v. Shepard 460, 472, 480
Lovell v. Evertson 126, 138
v. Hill 12
Lowe v. Walker 192
Lowes v. Mazzaredo 192, 193
Lowndes v. Anderson 191, 500
Lowney v. Perham 126
Lowry v. Murrell 119, 389
Loyd v. Lee 185
Ludlow v. Van Rensselaer 158
Luqueer v. Prosser 14, 59, 468,
470, 472
Lundie v. Robertson 275, 359, 362,
364
Lynch v. Reynolds 423
Lvsaght v. Bryant 306 a
_s. v. Walker 458
M.
Macartney v. Graham 445
Macintosh v. Haydon 201
Mactier v. Frith 430
Magruder v. Union Bank of
Georgetown 198, 241
Maillard v. Duke of Argyle 404
Maisonnaire v. Keating 96
Mallet v. Thompson 409, 419, 425
Maltby v. Carstairs
Manadue v. Kitchen
Maneely v. McGee
Mann v. Chandler
v. Lent
v. Moore
Manrow v. Durham
Section
424, 426
322
104, 438
69
187
346
59,457-459,
Martel v. Tureands
Martin v. Boyd
v. Bank of the U. S.
468, 470, 478, 480, 484
Manuf. Co. (Dutchess Cotton)
v. Davis 3
Manuf. & Mechanics' Bank v.
Winship 73
Many v. Beekman Iron Co. 69
Marchington v. Vernon 375
Margesson v. Goble 415
Margetson v. Aitken 364, 426
Markle v. Hatfield 118, 502
Marlow v. Pitfield 79
Marsh v. Maxwell 303, 330, 332
v. Ward 57
Marshall v. Rutton 85, 86
Marston v. Allen 120 a, 137, 138,
178
281
476
448
■ v. Chauntry 17
v. Franklin 399
v. Ingersoll 274, 275, 280,
321, 361, 362
v. Long 264
v. Winslow 274, 275,
362
Mason v. Franklin 231
v. Hunt 402
v. Morgan 87
v. Rumsey 73
Masters v. Barretts 16, 49
Matheson's Administrator v.
Grant's Administrator 72
Mauran v. Lamb 125, 246
May v. Coffin 272,275,280,361,
362
Mayhew v. Crickett 421, 485
■ v. Prince 71
Mayor v. Johnson 111, 449
McConnell v. Thomas 127
McCormick v. Trotter 18
McClure v. Dunkin 263
McCrummen v. McCrummen 322
McCullock v. Eagle Ins. Co. 430
McDonald v. Bovering 427
McGrudder V. Bank of Washing-
ton 235, 236, 264, 316, 317, 340
McHenry v. Ridgeley 127
McLain v. Waters 316
McLanahan v. Brandon 316, 335
INDEX TO CASES CITED.
XXV11
Section
McLaren v. Watson's Ex'rs 59,
147, 457, 470, 483, 484
McLemore v. Powell 415
McMurtrie v. Jones 316, 317, 335,
344
McNairu. Gilbert 106, 111
McNairy v. Bell 288
McNeilage v. Holloway 88, 89, 124,
306
Mead v. Engs 336
v. Small 180, 281
Mechanics Bank v. Griswold 281
: of Alexandria
v. Bank of Columbia 69
Mechanics & Traders Bank v.
Cornpton
Medbury v. Hopkins
Meech v. Churchill
Smith
v.
Meeker v. Jackson
Mellish v. Rawdon
v. Simeon
Mellen v. Race
Mellon v. Croghan
Mendez v. Carreroon
Merchants Bank v. Birch
Merritt v. Benton
Merwin v. Camp
Messenger v. Southey
Michael v. Myers
Mickles v. Colvin
Miers v. Brown
Miles v. Hall
v. Williams
Millaudon v. Arnons
Miller v. Gaston 59, 133,
459, 468-470
v. Hackley 275,
342, 343
155
59, 472, 480
71
111, 448
208
399
501
228
106,452
310
297
295
350, 351,
353
415
195
335, 353
341
124, 130.
413
147, 458,
480, 484
v. Hennen
v. Irvine
v. Race 113,
287,
13:
v. Thomson
v. Webb
Mills ». Bank of U. S.
v. Rouse
v. Wyman
Milne v. Graham
Milnes v. Duncan
Minard v. Mead
Minet v. Gibson
Minor v. Mechanics Bank
Mirando v. City Bank
Mitchell v. Culver
361,
362
135
459
191,
382
16
111, 448
265, 348,
349, 354
361
362
173, 174
386
70
36,39
127
322
37 a, 122
Section
Mitchell v. Degrand 217
Moffat v. Edwards 13, 27, 28
M.oggridge v. Jones 187
Mohawk Bank v. Broderick 220,
490, 492, 496, 497, 500
Moies v. Bird 58, 459, 473, 476, 477
Mondel v. Steele 187
Montgomery v. Bridge 167
Montillet v. Duncan 309
Montross v. Clark 191, 195
Moodie v. Morrall 344
Moore v. Paine 3
v. Manning 139, 142
Morgan v. Davison 226
v. Jones 22
v. Reintzel 111,448
v. Richardson 187
■ &c. v. Their Creditors 438
Morice (or Morris) v. Lee 12, 59,
472
Morley v. Boothby
v. Stacey
Morse v. Earl
v. Green
Moseley v. Hanford
Moshop v. Eaton
Mottram v. Mills
Mott v. Hicks
Muilman v. D'Eguino
Muldon v. Whitlock
Mule v. Brown
Mulherrin v. Hannum
Munn v. Baldwin
v. Commission Co
Murray v. Carret
v. East India Co
v. Governeur
v. Judah
King-
133, 458
117
89
69
25
111, 446, 451
246, 452
69, 70, 146
208, 337,
338
104
493
228
324, 328
74, 193
111
74
104, 438
418, 492, 497,
498
357
Mutford v. Walcott 178
Myrick v. Hasey 147, 471, 480, 484
N.
Nash v. Brown
v. Harrington
v. Nash
v. Russell
v. Skinner
Nashville Bank v. Bennett 343
Nelson v. Dubois 133,459,463,
473, 476, 477, 480
v. Nelson 120 a
Nevins v. De Grand 138
Newbury v. Armstrong 458
187
202
89
185
476
xxvm
INDEX TO CASES CITED.
Section
N. E. Mar. Ins. Co. v. De Wolf 69
Newsome v. Bowyer 86
New York State Bank v.
Fletcher 104
Nicholls v. Bowes 228
v. Webb 297
Nichols v. Goldsmith 243
v. Fearson 193
v. Norris 416, 418, 423
Nicholson v. Chapman 141
v. Gouthit 276, 286, 288
v. Marders 343
v. Patton 197
v . Revill 425, 435
Nightingale v. Withington 79, 80
Nisbet v. Smith 427
Noble v. Adams 188
v. His Creditors 413
North American Coal Co. v.
Dyett 418
North Bank v. Abbott 225, 229, 232,
243
Norton v. Eastman 484, 485
v. Lewis 148, 357
■ v. Pickering 268, 292
V. Waite 195
Norris v. Badger 452
Nott v. Downing 308
Nugent v. Roland 20
O.
Oakey v. Beauvais 235
Oakley v. Boorman 459, 470, 480
v. Johnston 457, 474, 476,
480
Obbard v. Betham 187
Ogden v. Dobbin 228 234, 243, 326
v. Glidewell 297
v. Saunders 135, 159, 168,
215
O'Keefe v. Dunn 193
Oliver v. Houndlet 77
Ontario Bank v. Lightbody 502
v. Worthington 195
Oriental Bank v. Blake 310
Orr v. Maginnis 498
Orvis v. Newell 58
Ory v. Winter 168, 172
Osborne v. Rogers 185
Otis v. Gibbs 265
v. Hussey 275
Owen v. Barnum 17
• v. Barrow 246
Owens v. Dickenson 85
Owenson v. Morse 104, 117, 119,
389, 438, 500, 502
Section
Oxford Bank v. Haynes 133,421,
459, 460, 467,469, 471-474,476,
480
v. Lewis 416
Pack v. Thomas 492
Packard v. Nye 70
v. Richardson 459
Packer v. Willson 470
Palmer v. Grant 57, 468, 480
v. Hughes 227, 228
v. Pratt 22, 28
Paradine v Jane 259
Parker v. Gordon 226
v. Norton 265
v. Riddle 128
fl.Willson 459
Parkes v. Bates 264
Parks v. Brinkerhoff 470, 474
Parr v. Eliason 193
Parson v. Gloucester Bank 419
Partridge v. Davis 11, 121, 147, 148
Pasmore v. North 48, 122
Passmore v. Mort 69
Pate v. M'Clure 275
Patience v. Townley 258, 261, 262
Patton v. State Bank 111
Payne v. Cutler 195
Payson v. Whitcomb 228
Peabody v. Denton 111
v. Harvey 275, 362
Peacock v. Banks 166
v.Rhodes 138,191,
192
Pearsall v. Dwight 155, 156
Pearson v. Crallon 338, 443
v. Garrett 27
Peaslee v. Robbins 101
Peay v. Pickett 17
Penn v. Glover 243
v. Poumeirat 275, 365
Penny v. Innes 128, 129
Pentz v. Stanton 69
Pessoon v. Stagg 12
Percival v. Frampton 186, 195
Perfect v. Musgrave 425
Perkins v. Washington Ins. Co. 71
Pfiel v. Van Batenberg 106, 452
Phillip v. Paget 79
Phillips v. Astling 237, 251, 284,
460, 485
v.Gould 351
v. Smith 264
Philliskirk v. Pluckwell 87, 124,
126, 306
INDEX TO CASES CITED.
XXIX
Philpot v. Bryant
Piatt v. Eads
Pickard v. Bankes
Pickin v. Graham
Picquet v. Curtis
Pierce v. Benjamin
— v. Whitney
Section
253,413-410,
419
6
500
304
228
205
288, 291, 295
Pierson v. Dunlap 26
v. Hooker 275, 362
v. Hutchinson 106, 446, 449
Pike v. Street 146, 190
Pilkington v. Commissioners 391
Pillans v. Mierop 195
and Rose v. Mierop and
Hopkins 195
Pinder v. Nathan 336
Pintard v. Tackington 106, 111, 438
Pitcher v. Livingston 264
Pitt v. Chappelow 80
v. Smith 101, 188
Pitts v. Tilden 263
Planters Bank v. Sellman 415
Pletts v. Johnson 132
Plimley v. Westley 128, 129
Polhilll v. Walter 71
Pool v. McCrary 23
Poole v. Dicas 324
v. Smith 446
Poplewell v. Wilson 186
Porter v. Boyd 322
v. Ingraham 410
v. Nekervis 127
• v. Sayward 265
Porthouse v. Parker 239, 308
Posey v. Decatur Bank 214, 448
Potter v. Rayworth 276, 362
Potts v. Bell 94, 97, 262
v. Reed 145, 146
Powel v. Roach 446
PowelU. Waters 48,194,419
Power v. Finnie 143
Powers v. Lynch 168
Prentiss v. Danielson 281
v. Savage 161
Presbrey v. Williams 211
Preston v. Dowson 316, 335
v. Jackson 192
Prestwick v. Marshall 87, 306
Price v. Easton 362
v. Edmonds 413, 415, 419,
421, 422
Neal 387
v. Young 253
Prideaux v. Collier 289, 365
Pring v. Clarkson 416
Pritchard v. Scott 322
Section
Pritt v. Fairclough 297
Prosser v. Edmonds 130
Puckford v. Maxwell 104, 117, 438,
502
Pugh v. The Duke of Leeds 211
Putnam v. Lewis 104
v. Sullivan 122, 237
R.
Raggett v. Axmorr 418
Rahm v. The Philadelphia Bank 297
Raikes v. Todd 465
Ramuz v. Crowe 446
Randall v. Van Vetchen 69
Ranelaugh v. Champante 166
Ran ii. Hughs 361
Ransom v. Mack 219, 220, 312, 316,
320, 322, 335, 344, 347-349, 354
Rawdon v. Redfield 316
Rawlinson v. Stone 123
Rawson v. Walker 24, 148
Rawstone v. Parr 57
Read v. Bank of Kentucky 297
v. Wheeler 14
Reading v. Weston 193
Reed v. Bachelor 77, 79
v. White 425
Reedy v. Seixas 348, 349, 354
Rees v. Abbott 57
v. Berrington 427
v. Marquis of Headfort 188
Reid v. Morrison 236
v. Paine 344
Renner v. Bank of Columbia 106,
111, 148, 448
Reynolds v. Davies 201
v . Douglass 274, 275, 362,
364
Rex v. Box 3, 9
v. Briggs 152
v. Randall 36, 37
Rhettu. Poe 2S4, 308
Rice v. Catlin 411
v. Gove 69, 70
v. Stearns 145
v. Wesson 207
Richards v. Richards 22, 24, 87, 88,
126, 306
Richter v. Selin 275, 278, 282, 361,
362
Rickford v. Ridge 493
Ricord v. Bettenham 96
Riddle v. Mandeville 302
Rideout v. Btistow 186
Ridley v. Taylor 73
Ripley v. Green 411
XXX
INDEX TO CASES CITED.
Section
Ripley v. Greenleaf 416
Roach v. Ostler 16
Robbins v. Pinckard 321, 324
Roberts v. Peake 22
Robertson v. Banks 63
v. Kensington 148
Robins v. Maidstone 191
v. May 22
Robinson v. Abell 469
v. Ames 208
v. Bland 156, 166, 190
v. Blen 201, 265
v. Read 117
V. Reynolds 191
v. Yarrow 380
Robson v. Bennett 493
v. Curlevvis 352
v. Oliver 476
v. McGregor 352
Roche v. Campbell 227
Rogers v. Crombie 265
v. Kneeland 470
v. Langford 500, 502
v. Stephens 276, 362, 364
Rogerson v. Hare 302
Rohde v. Proctor 307
Rolfe v. Caslon 186
v. Wyatt 418
Rolt v. Watson 106, 451
Roosevelt v. Woodhull 260
Rosa v. Brotherson 195
Roscow v. Hardy 303, 334, 338
Rose v. Clarke 128
Rosher v. Kieran 303
Rothschild v. Barnes 317
v. Corney 178,491
v. Currie 176, 339
Routh v. Robertson 349
Rowan v. Odenheimer 349
Rowe v. Young 227-229
Rowley v. Ball 106, 111, 445, 448
. ■ v. Stoddard 425
Ruggles v. Patten 228, 410, 422
Rumball v. Ball 29. 201
Russell v. Brooks 87
v. Cook 186
■ v. Had duck 195
v. Langstaffe 10, 48, 122,
201, 241, 286, 480
v. Moseley 458, 465
v. Whipple 14
v. Wiggin 482
Safford v. Wickoff 316, 335
Sage v. Wilcox 459, 480
Section
Salem Bank v. Gloucester Bank 379
Salisbury v. Hale
Salter v. Burt
Samuell v. Howarth
Sanderson v. Bowes
Sandford v. Dillaway
San ford v. Mickles
v. Norton
460
220, 489, 490
485
227, 228
241, 286
125
474, 477
128
459
Sanger v. Stimpson
Sargeant v. Morris
Sargent v. Appleton 400, 413, 422
Saul v. Brand 322
Saunders v. Wakefield 458, 459
Saunderson v. Judge 234, 235,
328
- v. Piper 21
143
Savage v. Merle
Savings Bank of New Haven
v. Bates
Sayer v. Frick
v. WagstafF
178
125
389, 438
255
130
88
258
Sayre v. Frick
ScafFord v. Bulkly
Scarpellini v. Atcheson
Schofield v. Bayard
Scholefield v. Eichelberger 94, 262
Scofield v. Day 166, 399
Scott v. Bevan 396
v. Gillmore 190
v. Lifford 194, 319, 320, 323,
326
Scruggs v. Gass 119, 389
Seabury v. Hungerford 133, 138,
472, 476, 477, 480
Seago v. Deane
Searight v. Calbrailh
Sears v. Brink
Seaver v. Lincoln
Seely v. Bisbee
Selby v. Eden
Seneca Co. Bank v. Neass
185
168, 391
459
246, 324
18
235
195,
297, 322, 324, 343
Sentance v. Poole 101
Serle v. Norton 497
Sewall v. Russell 326, 335
Seymour v. Van Slyck 128, 480
Sharrinston v. Strotten 183
268, 275, 276
65
303
410
229, 241, 243
246
438
Sharp v. Bailey
v. Emmit
Shaw v. Croft
v. Pratt
- v. Reed
v. Thompson
Shearm v. Burnard
Shed v. Brett 235, 238, 239, 243,
246, 247, 320, 322, 328, 343
• v. Pierce 409
INDEX TO CASES CITED.
XXXI
Section
Sheehy v. Mandeville 104, 404,
405, 409
Sheldon v. Benham 312, 322, 329
Shelton v. Braithwaite 344, 351
69, 70
v. Darling
Shepard v. Hall
— v. Hawley
320
239, 255, 308
126, 246
192
Sherwood v. Roys
Shillito v. Theed
Shirriffu. Wilks 73, 188
Shoomaker v. Roosa 186
Shortrede v. Cheek 458, 465
Shrivel v. Payne 12
Shuttleworth v. Stephens 16
Siddell v. Rancliffe 409
Sigourney v. Lloyd 143
v. Wetherell 485, 486
Simmons v. Guttridge 444
Simonds v. Heard 70
Simpson v. Vaughan 12
Sinclair v. Lynch 354
Skelding v. Warren 190
Skofield v. Haley 460
Slacum v. Pomery 129, 172
Slater v. West 197
Smalhvood v. Vernon 128, 129, 480
Smedberp; v. Simpson ' 192, 381
v. Whittlesey 381
Smedes v. Utica Bank 312, 320, 322
410
288, 413
18, 22, 27
352
427
169
379
139
195
297
3, 9, 41, 375
Smith v. Bartholomew
v. Becket
v. Boheme
v. Boulton
v. Bromley
v. Buchanan
v. Chester
■ v. Clark
■ v. De Witts
■ V. Gibbs
■ v. Kendall
v. Knox 194, 401, 420, 423
v. Lusher
v. M'Clure
v. Mead
v. Merier
v. Mullet
v. Nightingale
v. Pedley
v. Pickering
v. Prestige
v. Robinson
v. Rockwell
. v. Runnells
• v. Shaw
■ v. Smith
72
36, 142
155
135, 380
303, 320, 323,
24, 331
20
87
120
381
228
111, 244, 445,
448
381
399
169
Smith v. Thatcher
Smyth v. Hawthorn
Snaith v. Mingay
Snow v. Peacock
Soares v. Glyn
Solarte v. Palmer
Section
307
316, 328
122
197
142
297, 348, 350,
351, 353
Solomon v. Turner 187
Solomons v. Bank of Eng. 192,501
South Carolina Bank v. Case 73
Sowerby v. Brooks 375
Sparrow v. Carruthers 86
v. Chisman 187, 190
Spencer v. Bank of Salina 316, 344,
345
v. Sterling 337
Spering's Appeal 195
Spies v. Gilmore 236, 264, 476
Spittle v. Lavender 69
Spring v. Lovett 148
Staats v. Ten*Eyck 264
Stadt v. Lill 458,459
Stafford v. Yeates 302, 303, 419
Standage v. Creighton 362, 363
Stalker v. McDonald 195
Stanton v. Blossom
Staples v. Franklin Bank
v. Okines
Starke v. Cheeseman
State Bank v. Fearing
v. Hennen
v. Hurd 232
Stead v. Liddard
Stedman v. Gooch
Steers v. Lashley
Steinman v. Magnus
Stephens v. Foster
v. Wilkinson
Sterling v. Marietta and Susq.
303
226
287
16
380
235
235
459
234
190
410,426
197
187
234,
458,
Trading Co.
v. Peet
Stetson v. Patten
Stevens v. Blunt
t\ Lynch
v. Strong
v. West
Stevenson v. Lynch
Stewart v. Donnelly
Eden
Kennett
Lee
Lord Kirkwall
Steward
. Robb
126, 246
264
71
22, 29
275, 419
40
295
360
18
264, 310, 315,
335, 416, 419
301
Stillwell v
Stirling v. Forrester
Stock v. Mawson
145
85
362
230
425
427
XXX11
INDEX TO CASES CITED.
Section
328, 352
349, 352
185
77, 78
39
264
350, 351, 353
197
207, 217
194
45
416
190
468
Sutton v. Toomer 224
Swan v. Steele 73
Swasey v. Vanderheyden 78
Sweetser v. French 12, 58, 128
Swetland v. Creigh 18
Swett v. Patrick 264
Swift v. Stevens t 111
v. Tvson 178, 186, 187, 195
Stocken v. Collins
Stockman v. Parr
Stokes v. Lewis
Stone v. Dennison
v. Freeland
Stout v. Jackson
Strange v. Price
. . v. Wigney
Sturdy v. Henderson
Sturtevant v. Ford
Styles v. Wardle
Suckley v. Furse
Sumner v. Brady
■ v. Gay
Swinyard v. Bowes 284, 357, 438
485. 500
Sylvester v. Downer 134, 473, 476,
477
T.
Talbot v. Gay 460
Tapley v. Martens 117
Tappan v. Ely 148
Tassell v. Lewis 213, 500
Tate v. Hilbert 187
Taunton Bank v. Richardson 148,
271, 279, 291, 357-359, 364
Taylor v. Binney 147, 148, 471
v. Croker 80
. — v. Dobbins 34
. v. Jones 362
. v. Mather 178, 190
■ v. Young 493
v. M'Cune 134
. v. Snyder 236, 237, 264
Ten Eyck v. Vanderpoel 186
Tenny V. Prince 58, 133, 138, 459,
467, 471, 474,476, 477
Terrell v. Smith 403, 409
Terry v. Parker 268
Thackeray v. Blackett 244, 290,498
Thatcher v. Dinsmore 63, 104, 438
. v. Winslow 126, 246
Thayer v. King 244, 448
Thicknesse v. Bromilow 73
Thomas v. Bishop 65
v. Breedlove 357
v. Courtney 409, 416, 427
Thomas v. Davies
v. Roosa
-v. Todd
v. Jennings
Section
460
17
OQQ
Thompson v. Cook
v. Gibson
v. Hale
v. Powles
- v. Robertson
476
228
178
190
166
139
Thomson v. Ketcham 166, 168
Thornton v. Wynn 271, 274, 275,
358-360,362
Thurston v. McKown 191
Tibetts v. Dowd 274, 275
Tillman v. Wheeler 133, 476, 477,
480
v. Ailles 132
Tindal v. Brown 301, 302, 324,
325, 348, 353
Tippets v. Walker 70
Titus v. Lady Preston 213
Toby v. Barber 104, 438
Tombeckbee Bank v. Stratton 416,
423
Tooker v. Bennett 427
Touro v. Cassin 156
Tower v. Durell 275, 278, 282,
365
Townsend v. Derby 51
v. Hubbard 69
Townsley v. Springer 324
u. Sumrall 186, 195
Thrasher v. Ely 460
v. Everhart 155, 157
Trecothick v. Edwin 227
Treutteltt. Barrandon 143, 146
Trigffs v. Newnham 226
Trimbey v. Vignier 140, 155, 170,
174, 175
Trimble v. Thorne 274, 275, 362,
419
True v. Fuller 484
Truesdell v. Thompson 132
Truman v. Hurst 78
Trustees in Hanson v. Stetson 148
Tucker v. Moreland 77
. w.Smith 190
Tuckerman v. Newhall 425
Tunno v. Lague 260
Tunstall v. Walker 316
Turner v. Hayden 227, 235
v. Leach 356
Leech 303, 330, 332, 334,
388
Twopenny v. Young 409, 416, 425
Tye v. Gwynne 187
Tyler v. Binney 484
INDEX TO CASES CITED.
XXX111
Section
U. States v. Barker 312, 324, 341,
452
v. Buford 41, 130
v. Cushman 409, 421
v. Davis 326
v. White 41, 130
U. States Bank v. Bank of Geor-
gia 379
v. Binney 72, 73
v. Goddard 303,
326, 330
v. Lyman 115 A
v. Smith 228, 229
Ulen v. Kittredge 58, 459, 467, 471,
473, 474, 176, 477
Union Bank of Louis, v. Brown 342
Union Bank v. Hyde 148,272, 291,
297
Upham v. Prince 128, 147, 148,
471, 480, 484
Usher v. Dauncey 4S
v. Rich 382
Uther v. Rich 109, 113, 197
Valette v. Mason
191
Van Derveer v. Wri
Sfht
274, 275
Vancleef v. Therasson
104, 438
Van Reimsdyku. Kane
156
Van Schaick v. Edv
'ards
156
Van Straphorst v. Pearce
129
Van Waat v. Woolley 284
, 357,485
Varner v. Nobleborough
104
Vaughan v. Fuller
276, 362
Vent v. Osgood
77
Vernon v. Boverie
389
Violett v. Patton
10, 122
W.
Wagner v. Kenner
213a
Wain v. Bailey
106,
446, 451
458,
459, 467
14
Waithman v. Elsee
Walker v. Bank of Montgo-
mery 423
v. Perkins 190
v. Tunstall 316
v. McDonald 207
Wallace v. Angry 104, 339
v. M'Connell 228, 230
Walter v. Haynes 345
Walton v. Dodson 484
v. Murcall 460
Walton v. Watson
Walwyn v. St. Quintin
Ward v. Evans
v. Johnson
Warden v. Arell
v. Howell
Warder v. Tucker
Wardner v. Thurlo
Ware v. Weathnall
Warren v. Allnutt
— v. Lynch
Section
268
316,415,
419, 422
117, 389
409, 425, 727
168, 391
195
268,280, 288,
361, 362
263
264
228
55, 195
Warrender v. Warrender 155, 158
Warrington v. Furbor 284, 458,
460, 484, 485, 500
Warwick v. Bruce 78
Wathen v. Blackwell 352
Watkins v. Crouch 228
v. Hill 104, 438
v. Maule 120, 123
Watson's Ex'rs v. McLaren 133,
458, 465, 480, 484
Wagnam v . Bend 132
Weakley v. Bell 343
Webb v. Plummer 161
Weed v. Houten 228
Welch v. Lindo 146, 452
Weld v. Passamaquoddy Bank 127,
413
Wells v. Girling 427
Welsh v. Barrett 297
Wemple v. Dangeriield 324
Wennall v. Adney 185
Westcott v. Price 425
Wheaton v. Wilmarth 348
Wharton v. Wright 315, 317
Wheatley v. Williams 12
Wheeler v. Field 236
v. Guild 191
Whiston v. Stodder 155, 157
Whitaker v. Morris 364
V . Bank of England 226
Whitcomb v. Williams 104
White v. Englehard 297
v. Hildreth 67, 127
w.Hopkins 422,423
v. Howland 59, 459, 468,
480
v. Ledwick 51
v. Low 128
■ v. North 12
v. Richmond 18
v. Skinner 71
Whiteman v. Childress 18
Whitehead v. Walker 178, 190
Whitinsr v. Walker
297
XXXIV
INDEX TO CASES CITED.
Section
Whitney v. Dutch 77
Whitlier v. Graffam 237
Whittlesey v. Dean 198, 320, 324
Whitwell v. Brigham 226, 411
v. Johnson 111, 232, 243,
324
■ v. Kennedy 265
Wiffin v. Roberts 190
Wiggin v. Tudor 425
Wigglesworth v. Dallison 161
Widgery v. Munroe 237
Wilbour v. Turner 132
Wilcox v. Hunt 155
v. McNutt 312
v. Routh 307
Wild v. Rennards 228
Wilks v. Back 68, 73
Wilkes v. Jacks 276, 362
Wilkins v. Jadis 226
Wilkinson v. Adams 353
v. Henderson 310
Williams v. Bank of U. States
235, 307, 312, 315, 316, 322, 341
v. Grangers 480
v. Putnam 297
v. Smith 191, 195, 324
v. Wade 171
v. Waring 49, 201
Williamson v. Bennet 23
v. Watts 78
Willings v. Consequa 155
Willis v. Green 255, 308, 310,
329
Willison v. Patterson 94, 262
Wilson v. Holmes 126, 143
v. Sway bey 302, 303
v. Foot 421
Winship v. Bank of U. States 72
Wintle v. Crowlher 73, 187
Wiseman v. Lyman 104
Wood v. Benson 465
Section
Wood v. Bodwell 438
v. Brown 362
v. Day 305
v. Fenwick 77
v. Jefferson Co. Bank 413, 416
v. Mullen 213a
■ v. Mytten 16
Woodcock v. Houldsworth 328
Woodbridge v. Brigham 211, 229,
243
v. Spooner 24, 25, 148
Woodes v. Dennett 71, 72
Woodfolk v. Leslie 12
Woodford v. Dorwin. 45
Woodruff?;. Merchants Bank of
City of New York 488, 489
Woodward v. Winship 73
Wolcott v. Van Santvoord 228
Wolfe v. Jewett 237
Worcester Bank v. Wells 171
Worden v. Dodge 25
Worley v. Harrison 22, 28
Wooley v. Clements 220
Wright v. Hay 148
v. Shawcross 320, 324, 331
v. Simson 427
Wyatt v. Buhner 192
v. Campbell 192
Wynn v. Alden 349
Wynne v. Jackson 158
Yarborough v. Bank of England 152
Young v. Adams 18, 118, 119, 389
v. Bryan 297
Yeates v. Grove 255
Yeatman v. Erwin 343
Yates v. Hall 96
■ v. Thomson 158
Yrisarri v. Clement 166
COMMENTARIES
ON
PROMISSORY NOTES
COMMENTAEIES
ON
PEOMISSOEY NOTES
CHAPTER I
NATURE AND REQUISITES OF PROMISSORY NOTES.
§ 1. A Promissory Note may be defined to be a
written engagement by one person to pay another per-
son, therein named, absolutely and unconditionally, a
certain sum of money at a time specified therein. 1 The
definition given by Mr. Justice Blackstone is, that Pro-
missory Notes or notes of hand, are a plain and direct
engagement in writing to pay a sum specified at a time
limited therein, to a person therein named or sometimes
to his order, or often to the bearer at large. 2 Perhaps
this definition may be thought faulty in not stating that
the engagement is to be absolute and unconditional.
Mr. Justice Bayley more succinctly states that a Pro-
missory Note is a written promise for the payment of
money at all events. 3 Mr. Chancellor Kent follows the
1 See Thomson on Bills, ch. 1, p. 1, (2d edit.)
2 2 Black. Coram. 467 ; Kyd on Bills, p. 18, (3d edit.) follows the defi-
nition of Blackstone ; and Chitty, in substance, adopts it. Chitty on Bills,
548, (8th edit. 1833.) See Thomson on Bills, ch. 1, p. 1.
3 Bayley on Bills, ch. 1, p. 1, (5th London edit.) ; Smith on Merc.
Law, 184, (3d edit.)
PROM. NOTES. 1
2 PROMISSORY NOTES. [CH. I.
definition of Mr. Justice Bayley ; * and perhaps each is
open to the objection, that while it seeks brevity it is
incomplete, as it does not state that the promise is made
by one person to pay the money to another person
specified. 2
§ 2. The definitions of a Promissory Note to be found
in the foreign law do not essentially differ (as might
reasonably be supposed) from that in the Common Law. 3
Promissory Notes are, however, distinguished into vari-
ous classes in France, the principal of which are notes not
negotiable, called Les Billets Simples, and those which
are negotiable, which are called Les Billets a Ordre, or
Billets cm Porteur* The former are treated as mere ac-
knowledgments of a debt, with a promise to pay it, an-
swering very nearly to our Due Bill, and they do not
carry with them the ordinary privileges annexed to ne-
gotiable notes. 5 Still, however, Les Billets Simples are
assignable. 6 Heineccius designates a Promissory Note
by the name of Chirograplmm, (borrowing the word from
the Roman Law,) or Cambium Proprium; as to which he
says, Qimm itaque in ccimbio proprio dues tantum personce,
inter se, debitor et creditor, contrahant, necesse est, id iiterque
1 3 Kent, Coram. Lect. 44, p. 74, (5th edit.)
2 See Brown v. Oilman, 13 Mass. R. 158.
3 Pothier, De Change, n. 216.
4 Merlin, Repertoire, Billets, § 1, (edit. 1825) ; Id. Ordre, Billets u, § 1 ;
Savary, Le Parfait Negotiant, Tom. 1, p. 888; Pothier, De Change, n.
216-218; Pardessus, Droit Coram. Tom. 2, art. 477, 478, 483; Chitty
on Bills, ch. 5, p. 181, (8th edit. 1833); Jousse, Sur L'Ord. de 1673,- tit.
5, p. 126 ; Savary, Le Parfait Negoc. Tom. 1, Pt. 1, Liv. 3, ch. 7, p.
195, 196, 200, 201 ; Nouguier, Des Lettres de Change, Tom. 1, Liv. 4,
§ 1, p. 492, 493, 496, 498; Id. § 2, p. 513; Code de Coram, art. 138,
637, 638.
5 Ibid.
6 Story on Bills, § 19 ; Post, § 15.
CH. I.] NATURE AND REQUISITES. 3
duarimi personarum vie em sustineat, adeoque debitor se sinml
trassantem, simul, acceptantem ; creditor vcro simul remiiten-
tem, simul pr&sentantem esse fingat} He manifestly here
refers to a negotiable Promissory Note ; for lie immedi-
ately acids, " Quamvis ergo ejus modi Utter a, cambiales vere
sint Chirographa, cambiorum schemate induta : tamen ideo
permagni momenti sunt, quod 1) uti alia cambia possunt
indossari, 2) facillime pr&scribuntur, et 3) non sequuta
solutione locus est processui et exsequutioni cambiali?
§ 3. Although a Promissory Note is, in contemplation
of law, entitled to all the privileges belonging to such
an instrument by the Commercial Law, as well as by
Common Law, without being, negotiable ; 3 yet, it is the
1 Heinecc. de Camb. cap. 2, § 2.
2 Id. cap. 2, §3.
3 Bayley on Bills, ch. 1, § 10, p. 33, 34, (5th edit.) and note 73 ; Chitty
on Bills, ch. 5, p. 180, (5th edit. 1833); Id. ch. 12, p. 557; Smith v.
Kendall, 6 Term R. 123 ; Rex v. Box, 6 Taunt. R. 325 ; Burchell v. Slo-
cock, 2 Ld. Raym. 1545 ; Downing v. Backenstoes, 3 Caines, R. 137 ;
Dutchess Cotton Manuf. v. Davis, 14 Johns. R. 238 ; Moore v. Paine,
Cas. Temp. Hard. 280. Yet it remained a doubt, down to the time of the
decision in Smith v. Kendall, 6 Term R. 123, whether a Promissory JMote,
not negotiable, was within the Statute of 3 and 4 Anne, ch. 9. Lord
Kenyon there said : "If this were res Integra, and there were no decision
upon the subject, there would be a great deal of weight in the defendant's
objection ; but it was decided in a case in Lord Raymond, on demurrer,
that a note payable to B without adding ' or to his order,' or 'to bearer,'
was a legal note within the act of parliament. It is also said in Marius,
that a note may be made payable either to A or bearer, A or order, or to
A only. In addition to these authorities, I have made inquiries among
different merchants respecting the practice in allowing the three days'
grace, the result of which, is, that the Bank of England and the merchants
in London allow the three days' grace on notes like the present. The
opinion of merchants, indeed, would not govern this Court in a question of
law, but I am glad to find that the practice of the commercial world coin-
cides with the decision of a court of law. Therefore, I think that it would
be dangerous now to shake that practice, which is warranted by a solemn
decision of this Court, by any speculative reasoning upon the subject." I
have not, after some research, been able to find the passage referred to by
.
4 PROMISSORY NOTES. [CH. I.
latter quality which gives it its principal importance
and value in modern times, and makes it a circulating
credit, so extensively useful and so generally resorted
to in the commerce of the world. Promissory Notes
are now generally made negotiable, by being stated
therein to be payable to A or order, or to the order of
A, or to A or bearer, or to the bearer generally. 1 Per-
haps the silent but steady progress in England, from
the simple use of the non-negotiable Notes, before the
reign of Queen Anne, to the present almost universal
negotiability of such instruments in our day, cannot be
better expressed than by referring to the language of
Blackstone above cited, where he adverts to the fact
that Promissory Notes are payable " to a person therein
named," and then cautiously adds, " or sometimes to his
own order or often to the bearer." 2 The reverse lan-
guage might be far more justly used in the present day ;
and it might be correctly stated that Promissory Notes
are now generally negotiable by being payable to order,
or to the bearer ; and that they are rarely limited to be
payable only to a particular person named therein. We
may add in this connection, that the person who makes
the Note is called the maker, and the person to whom
it is payable is called the payee ; and when it is nego-
tiable by indorsement, and is indorsed by the payee, he
is called the indorser, and the person to whom the interest
is transferred by the indorsement is called the indorsee. 3
Every indorsee is of course deemed the holder, and so is
his Lordship in Marius. Perhaps he referred to Marius, p. 14, or p. 34.
See also, Com. Dig. Merchant, F. 15.
i Chitty on Bills, ch. 5, p. 181, (8th edit. 1833) ; Id. ch. 6, p. 219.
2 2 Black. Comm. 467.
3 Chitty on Bills, ch. 12, p. 548, (8th edit. 1833) ; Bayley on Bills, ch.
],§!, p. 4, (5th edit.)
CH. I.] NATURE AND REQUISITES. 5
every person, who, by a transfer of a note payable to
the bearer, becomes entitled thereto. 1 The Scottish
Law seems precisely coincident with the English Law
as to Promissory Notes, except so far as respects the
remedial process thereon; there being some peculiar
privileges annexed thereto in Scotland. 2
§ 4. It seems scarcely necessary to point out the
distinction between Bills of Exchange and Promissory
Notes in their general structure and character. In a
Bill of Exchange, there are ordinarily three original
parties, the drawer, the payee, and the drawee, who,
after acceptance, becomes the acceptor. In a Promissory
Note, there are but two original parties, the maker and
the payee. In a Bill of Exchange, the acceptor is the
primary debtor in the contemplation of law to the
payee ; and the drawer is but collaterally liable. In a
Promissory Note, the maker is, in contemplation of law,
the primary debtor. If a Note be negotiable, and is
indorsed by the payee, then there occurs a striking
1 The usual form of a Promissory Note in England, according to Mr.
Chitty, is : — " £50 (or the other proper sum.) — London, (or other place,)
1st of January, 1832, (or the proper date.) Two months after date, (or
on demand, or at any other specified time,) I promise to pay to Mr. A B,
or order, fifty pounds, value received." Signed, C D. Chitty on Bills,
ch. 12, p. 548, (8th edit. 1833.) The common form in America is: —
" Boston, January 1, 1844. For value received, I promise to pay A B,
or order, (or to the order of A B,) one thousand dollars, in days
after date, (or on demand, &c") Signed, C D. The common form in
France, according to Nouguier, is : — " Au dix Novembre prochain (ou a
toute autre echeanc'e.) Je paierai a M. Jacques, ou a son ordre, la somme
de mille francs, valeur recue comptant (ou de toute autre maniere.) Paris,
ce (la date) 18—. Paul. [B. P. f. 1000."] Nouguier, Des Lettres de
Change, Liv. 4, § 1, p. 497. Terms substantially the same, are given in
Dupuy de la Serra, Des Lettres De Change, ch. 19, p. 192, 193, (edit.
1789); Savary, Parfait Negotiant, Pt. 1, Liv. 3, ch. 10, p. 244, 245. A
place of payment is often mentioned in Promissory Notes, as, for example,
it is made payable at a particular place, or at a particular bank or banker's.
2 1 Bell, Comrn. B. 3, ch. 2, § 5, p. 386, 387, (5th edit.)
1*
6 PROMISSORY NOTES. [CH. I.
resemblance in the relations of the parties upon both
instruments, although they are not in all respects iden-
tical. 1 The indorser of a Note stands in the same rela-
tion to the subsequent parties as the drawer of a Bill,
and the maker of the Note is under the same liabilities
as the acceptor of a Bill. 2
§ 5. The origin of Promissory Notes is quite as
obscure as that of Bills of Exchange. There is no
doubt that Promissory Notes in writing (Chirographa)
were well known and in use among the Romans. Of
this, we have an instance in the Digest. Ab Aulo
Agerio Gains Seius mutuam quandam quantitatem accepit
hoc Chirographo : llle scripsit, me accepisse, et accepi ab
Mo mutuos et numeratos decern : quos ei reddam Jcalendis Mis
proximis cum suis usuris placitis inter nos : Qucsro, an ex
eo instrumento usuree petipossint, et quce? Modestinus
respondit, si non appareat de qidbus usuris conventio facta
sit, peti eas non posse. 3 But this instrument never
seems to have been known as a negotiable instrument
among the Romans, or as a general medium used in
purchases and sales with that superadded quality ; but
its negotiability seems to be exclusively the invention
of modern times. Probably the origin of negotiable
Promissory Notes is somewhat later than that of Bills
of Exchange, and grew out of the same general causes
as the latter, viz. : to facilitate the operations of com-
merce, and to extend the negotiability of debts. Mr.
Kyd's remarks on this subject seem at once well founded
and satisfactory, at least as conjectures. "As com-
1 Post, § 379, $ 380, $ 387.
2 Chitty on Bills, ch. 6, p. 266, (8th edit. 1833) ; Buller v. Crips, 6
Mod. R. 29, 30 ; Bayley on Bills, ch. 5, § 3, p. 169, (5th London edit.) ;
Id. ch. 1, $ 15, p. 42 ; Heylyn v. Adamson, 2 Burr. R. 669, 676.
3 Dig. Lib. 22, tit. 1, 1. 41, § 2; Dig. Lib. 2, tit. 14, 1. 47, § 2.
OH. I.] NATURE AND REQUISITES. 7
merce," says he, u advanced in its progress, the multi-
plicity of its concerns required, in many instances, a
less complicated mode of payment than by Bills of
Exchange. A trader, whose situation and circumstances
rendered credit from the merchant or manufacturer, who
supplied him with goods, absolutely necessary, might
have so limited a connection with the commercial world
at large, that he could not easily furnish his creditor
with a Bill of Exchange on another man. But his own
responsibility might be such, that his simple promise of
payment, reduced to writing for the purpose of evi-
dence, might be accepted with equal confidence as a bill
on another trader. Hence, it may reasonably be con-
jectured, Promissory Notes were at first introduced." x
§ 6. Undoubtedly, negotiable Promissory Notes were
well known upon the continent of Europe, long before
their introduction into England. 2 They were, probably,
first brought into use in England about the middle of
the 17th century, although Lord Holt has been thought
to assign to them a somewhat later origin. 3 They seem
1 Kyd on Bills, p. 18. — I have made some researches into other works
to ascertain the origin of Promissory Notes, but have not been successful.
The subject is merely incidentally touched, under the head of Exchange,
in Anderson's History of Commerce, (Vol. i. p. 221, 266, 360, 541, 557,
Dublin edit. 1790,) and in the Encyclopedia Britannica, art. Exchange;
and in Malynes, Lex. Merc. ch. 11, § 6, p. 71, (edit. 1636.) Malynes
hear speaks of Promissory Notes, called Bills of Debt, or Bills Obligatory,
which were negotiable, as being "altogether used by the merchants ad-
venturers at Amsterdam, Middleborough, Hamborough, and other places."
See also Malynes, Lex. Merc. ch. 12, p. 72, 73, (edit. 1636) ; Id. ch. 13,
p. 74, 75. Malynes adds, that this laudable custom is not practised or es-
tablished in England. See also, Scaccia, Tract, de Comm. § 1, Quest. 2,
p. 150-154; Id. § 1, Quest. 6, p. 194.
2 Malynes, Lex. Merc. ch. 11, p. 71, (edit. 1636); Id. ch. 12, p. 72;
Id. ch. 13, p. 74, 75. See Nouguier, Des Lettres de Change, Tom. 1 3
p. 279-285, 296.
3 Buller v. Crips, 6 Mod. R. 29; Malynes, Lex. Merc. ch. 11, p. 71,
8 PROMISSORY NOTES. [CH. I.
at first to have been called Bills of Debt, or Bills of
Credit, indifferently. 1 Indeed, as Lord Mansfield lias
observed, there seems much confusion in the Reports in
the times of King William and Queen Anne, so that it
is difficult, without consulting the records, to ascertain,
whether the action arose upon a Bill or Note, as the words
"Bill" and "Note" were used promiscuously. 2 There
was a long struggle in Westminster Hall, as to the
question whether Promissory Notes were negotiable or
not at the Common Law • for there could be no doubt
that they were by the ; Law Merchant, at least as recog-
nized upon the continent of Europe. Lord Holt most
strenuously, and with a pride of opinion not altogether
reconcilable with his sound sense and generally com-
prehensive views, maintained the negative. 3 The con-
troversy was finally ended by the Statute of 3 and 4
Anne, ch. 9, (1705,) (made perpetual by the Statute of
7 Anne, ch. 25, § 3,) which, after reciting, that Pro-
missory Notes had been held not negotiable, proceeded
to enact, " That all Notes in writing, made and signed
ch. 12, p. 72, (edit. 1636.) There is a very learned note by Mr. Chief
Justice Cranch, in the Appendix to the first volume of his Reports, in
which he has traced the history of Promissory Notes and inland Bills, in
England, with great minuteness and apparent accuracy. A scrupulous
examination of this Appendix will well reward the diligence of the atten-
tive reader. See 1 Cranch, R. App'x, p. 367, note A, and especially p.
380-405. See also, Com. Dig. Merchant, F. 1, F. 2 ; Malynes, Lex
Merc. ch. 11, p. 71, 72, ch. 12, p. 72, 73 ; Godbolt, R. 49.
1 Com. Dig. Merchant, F. 1, F. 2 ; Malynes, Lex Merc. ch. 11, p. 71,
ch. 12, p. 72, (edit. 1636) ; Id. ch. 13, p. 74.
2 Grant v. Vaughan, 3 Burr. R. 1525.
3 Clerk v. Manin, 2 Ld. Raym. 757; 1 Salk. 757. The history of
this struggle, as well as the conflicting adjudications, are fully stated in
the Appendix to Judge Cranch's Reports, note A, p. 367, and especially
p. 380-418 ; Brown v. Harraden, 4 Term R. 148; Chitty on Bills, ch.
12, p. 518-550, (8th edit. 1833.)
CH. I.] NATURE AND REQUISITES. 9
by any person or persons, body politic or corporate, or
by the servant or agent of any corporation, banker,
goldsmith, merchant, or trader, who is usually intrusted
by him, her, or them, to sign such Promissory Notes
for him, her, or them, whereby such person or persons,
body politic and corporate, his, her, or their servant or
agent as aforesaid, doth or shall promise to pay to any
other person or persons, body politic and corporate, his,
her, or their order, or unto bearer, any sum of money
mentioned in such Note, shall be taken and construed
to be, by virtue thereof, due and payable to any such
person or persons, body politic and corporate, to whom
the same is made payable ; and also every such Note
payable to any person or persons, body politic and cor-
porate, his, her, or their order,* shall be assignable or
indorsable over, in the same manner as inland Bills of
Exchange are or may be, according to the custom of
merchants ; and that the person or persons, body politic
and corporate, to whom such sum of money is or shall
be by such Note made payable, shall and may maintain
an action for the same, in such manner as he, she, or
they might do upon any inland Bills of Exchange, made
or drawn according to the custom of merchants, against
the person or persons, body politic and corporate, who,
or whose servant or agent as aforesaid signed the same ;
and that any person or persons, body politic and corpo-
rate, to whom such Note, that is payable to any person
or persons, body politic and corporate, his, her, or their
order, is indorsed or assigned, or the money therein
mentioned ordered to be paid by indorsement thereon,
shall and may maintain his, her, or their action for such
sum of money, either against the person or persons,
body politic and corporate, who, or whose servant or
agent as aforesaid, signed such Note, or against any of
10 PROMISSORY NOTES. [CH. I.
the persons that indorsed the same, in like manner as in
cases of inland Bills of Exchange." 1 In most of the
States of America, this statute has been either expressly
adopted by statute, or recognized as part of their Com-
mon Law. A few only have deemed it inapplicable to
their situation ; and in some States the circulation of
Promissory Notes still remains clogged with positive
restrictions, or practical difficulties, which greatly im-
pede their use and value, and circulation. 2
1 Chitty on Bills, ch. 12, p. 550, (8th edit.)
2 Mr. Chancellor Kent, in the last (5th) edition of his Commentaries,
(3 Kent, Comm. Lect. 44, p. 72, note a,) upon this subject, says : — "In
Massachusetts, Connecticut, Vermont, Ohio, North Carolina, South Caro-
lina, Alabama, Illinois, Michigan, Missouri, and most of the States, the
indorsee has all the privileges of an indorsee under the Law Merchant.
But in New Jersey, Pennsylvania, Kentucky, Indiana, and Mississippi,
his rights, under the Law Merchant, are to be taken with some qualifica-
tion, and especially in the States last mentioned. See Griffith's Law
Register, passim; 1 Miner, Alabama R. 5, 296; Revised Statutes of
North Carolina, (1837,) vol. 1, p. 93 ; Revised Statutes of Vermont, 1839,
336 ; Revised Code of Mississippi, (1822,) 464. Notes or Bills discounted
at a Bank, or deposited for collection, are placed by statute, in Pennsyl-
vania, on the footing of foreign Bills of Exchange as to payment and
remedy. Purdon, Dig. 108. As the English statute has not been adopted
in Virginia, the last assignee of a Promissory Note cannot maintain an
action against a remote indorser, there being neither consideration nor
privity. Dunlop v. Harris, 5 Call, R. 16. In New Hampshire, the Sta-
tutes of 9 and 10 William III., and 3 & 4 Anne, respecting inland Bills
and Promissory Notes, were reenacted during the colony administration.
In Indiana, Promissory Notes, payable at a chartered bank within the
State, are by statute placed on the same footing as inland Bills of Exchange
by the Law Merchant; Revised Statutes of Indiana, (1838,) 119. But
other Promissory Notes are not governed by the Law Merchant, which
has never been applied in that State by statute to them ; Bullitt v. Scrib-
ner, 1 Blackford, Ind. Rep. 14. The Lex Mercatoria, applicable to foreign
and inland Bills of Exchange, is considered to be adopted in Indiana as
part of the Common Law of England, which has been adopted by statute.
Piatt v. Eads, Ibid. 81. In Pennsylvania, Virginia, Arkansas, Missouri,
and Mississippi, sealed instruments, as well as notes, are made negotiable
by statute ; and in Arkansas, all agreements and contracts in writing, for
CH. I.] nature and requisites. 11
§ 7. Most, if not all commercial nations have annexed
certain privileges, benefits, and advantages to Promissory
Notes, as they have to Bills of Exchange, in order to
promote public confidence in them, and thus to insure
their circulation as a medium of pecuniary commercial
transactions. 1 In England and America, they partake,
in a very high degree, of the character of specialties,
and are deemed to import, prima facie, to be founded
upon a valuable consideration, and may be generally
declared on without specially stating what the particu-
lar consideration is ; in which circumstance they differ
from other unsealed contracts, whether written or un-
written. Between the original parties, the considera-
tion may, indeed, as a matter of defence be inquired into.
But where they are negotiable, and in the possession of
a bona fide holder for a valuable consideration, without
any notice of any inherent infirmity or vice in their
original concoction, they are binding upon the antece-
the payment of money or property, are made assignable. But these as-
signments in some of these last mentioned States, expressly reserve to the
debtor all matters of defence existing prior to the notice of the assign-
ment. In Georgia, by statute of 1799, Promissory Notes are made nego-
tiable, though given for specific articles. Daniel v. Andrews, Dudley, R.
157; Garnblin v. Walker, 1 Arkansas R. 220; Henning, Statutes, vol.
12; Block v. Walker, 2 Arkansas R. 7; Revised Statutes of Arkansas,
107; Revised Code of Mississippi, (1824,) 464." By the laws of New-
York, (Revised Statutes, vol. 1, p. 768, § 1,) " Promissory Notes payable
in money to any person, or to the order of any person, or to bearer, are
negotiable in like manner as inland Bills of Exchange, according to the
custom of merchants. The payee and indorsee of every such Note, pay-
able to them or their order, and the holder of every such Note, payable to
bearer, may sue thereon in like manner as in cases of inland Bills of Ex-
change. If such notes are made payable to the order of the maker, or to
the order of a fictitious person, and be negotiated by the maker, they have
the same effect and validity, as if made payable to bearer."
1 Story on Bills of Exchange, § 14 ; Thomson on Bills, ch. 1, p. 1-5.
12 PROMISSORY NOTES. [cH. I.
dent parties, and the consideration is not inquirable into,
and becomes immaterial. 1 In Scotland, they are entitled
to all the privileges of Bills of Exchange, among which
besides the common privileges in England and America.,
is the privilege of a summary process to enforce pay-
ment upon their dishonor, differing from the ordinary
process. 2 The like summary process is given by the
French Law. 3 Heineccius, in the passages already re-
ferred to, 4 states that they are indorsable like Bills of
Exchange, and are subject to the law of prescription,
and, in case of dishonor, are open to the same process
and mode of execution, as Bills of Exchange.
§ 8. Having stated the general nature of Promissory
Notes, their definition, origin, and privileges, in brief
terms, let us now proceed to a more exact consideration
of the qualities which are essential to their true opera-
tion and structure, and without which they cease to
possess the proper attributes of commercial paper.
§ 9. In the first place, a Promissory Note, as the very
phrase denotes, is a written instrument. 5 A verbal or
oral promise, however valid and obligatory in point of
law, and however formal in its language, is not deemed
a Promissory Note; nor is it capable of being trans-
1 Story on Bills of Exchange, § 14, 15; Post, § 181.
2 Thomson on Bills, p. 3.
3 Story on Bills of Exchange, § 14; Pothier, De Change, n. 124-127;
Jousse, Comm. sur L'Ord. 1673, art. 12, p. 102 ; Code de Comm. de
France, art. 187 ; Nouguier, Des Lettres De Change, Tom. 1, Liv. 4, § 2,
art. 1, p. 513, &c. ; Savary, Parfait Negociant, Tom. 1, Pt. 1, Liv. 3, ch.
9; p. 209. In Nouguier, (Tom. 2,) the regulations respecting Bills of
Exchange and Promissory Notes in the different countries of Europe, are
very fully stated.
4 Ante, § 2 ; Heinecc. de Camb. ch. 2, § 3, p. 11.
5 Bayley on Bills, ch. 1, § 1, p. 1, (5th edit.) ; Id. § 3, p. 10 ; Thomson
on Bills, ch. 1, p. 1.
CH. I.] NATURE AND REQUISITES. 13
ferred at law, although the promise be to pay to the
payee or his order, or to the hearer, the sum stipulated.
This is obvious enough upon the slightest consideration.
A verbal promise cannot be indorsed, that is, written
upon, for there is nothing in esse to which the indorse-
ment can be attached. It is equalty incapable of pass-
ing to the bearer, because it has no corporeal existence,
or corporeal representative, by which it can be identi-
fied to be in the possession of one person more than
another. But if the promise be in writing, and it has
all the other requisites, it is not essential to its charac-
ter as a Promissory Note, (as we have already seen, 1 )
that it should be negotiable, that is, that it should be
payable to order, or to bearer. It is true that it will
not be negotiable, unless these, or other words of the
same legal effect, are found in the written instrument ;
but it will nevertheless, in contemplation of law, be a
Promissory Note. 2
§ 10. This requisite, that a Promissory Note should
be in writing, is, from what has been already said,
founded in the very nature and design and operation of
the instrument. Hence it is equally true in the law of
France and of the other commercial countries of the
continent of Europe, and indeed may properly be
deemed the rule throughout the commercial world.
The Code of Commerce of France only embodies the
general understanding of all nations where Bills of Ex-
1 Ante, § 3.
2 Ante, § 3; Chitty on Bills, ch. 5, p. 181, (8th edit.); Id. ch. 6, p.
219; Id. ch. 12, p. 548; Bayley on Bills, ch. I, § 10, p. 33, 34, (5th
edit.) ; Smith v. Kendall, 6 Term R. 123 ; Chadwick v. Allen, 2 Str. R.
706 ; Rex v. Box, 6 Taunt. R. 325 ; Burchell v. Slocock, 2 Ld. Raym.
1545 ; Story on Bills of Exchange, § 60, 199.
PROM. NOTES. 2
14 PROMISSORY NOTES. [CH. I.
Exchange and Promissory Notes are in use. 1 When,
however, it is said that a Promissory Note must be in
writing, we are to understand the doctrine with this
qualification, that it does not acquire that character
until it is reduced to writing. But it is very common
for persons to sign their names in blank to a paper, for
the purpose of having a Promissory Note written over
it ; and in such a case, the note, when written, will bind
the party, if done by a person properly authorized in
the same manner, and to the same extent, and from the
same time, as if it had been originally filled up before
the signature was made. 2
§11. We have seen that a Promissory Note must be
in writing. But such writing need not, it seems, be in
ink j for it has been held, that it may be in pencil. 3 It
is perhaps to be regretted, that this doctrine has been
established, since pencil marks are so easily altered and
erased ; and one of the great objects of negotiable paper
is to acquire general credit, by being expressed in lan-
guage clear and permanent in its character and verifi-
cation. The writing may, without doubt, be on paper
or parchment; but whether it may be on any other
1 Code de Comm. art. 110, 187; Pardessus, Droit Comm. Tom. 1, art.
23; Id. Tom. 2, art. 318, 330, 478 ; Jousse, Sur L'Ord. 1673, tit. 5, p.
58, 59, 67 ; Id. p. 126, 127; Pothier, De Change, n. 30, 216 ; Thomson
on Bills, ch. 1, p. 1; Heinnec. de Camb. cap. 2, § 1-4; Dupuy de la
Serra, De Change, ch. 19, p. 191.
2Bayley on Bills, ch. 1, \ 7, p. 25, (5th edit) ; Id. § II, p. 36, 37, 39;
Id. ch. 5, § 3, p. 168; Id. ch. 9, p. 382; Chitty on Bills, ch. 2, p. 33,
(8th edit.) ; Id. ch. 5, p. 186, 215 ; Mech. & Farm. Bank v. Schuyler,
7Cowen, R. 337 ; Russel v. Langstaffe, 2 Doug. R. 514 ; Violett v. Pat-
ton, 5 Cranch, R. 142.
SBayley on Bills, ch. 1, § 3, p. 10, (5th edit. 1830) ; Geary v. Physic,
5 Barn. & Cresw. 234 ; Closson v. Stearns, 4 Vermont R. 11; Brown v.
Butchers & Drovers' Bank, 6 Hill, N. Y. R. 443 ; Partridge v. Davis, 20
Vermont R. 499.
CH. I.] NATURE AND REQUISITES. 15
material, as for example, on silk, or cotton cloth, or on
wood, or metal, or with a style or a graver, is a mere
matter of speculation, which it is useless to discuss,
since, practically, in our age, paper or parchment are
the only materials in general use. When, however, it
is said that a Promissory Note must - be in writing, we
are not to understand that the instrument is required to
be in the handwriting of some individual. It may all,
except the signature, be in printed letters ; but the sig-
nature must be in the handwriting of the party execut-
ing it, or if it be by the mark of the maker, that mark
must be verified by the handwriting or attestation of
some person who acts for the marksman, or attests it at
his request. If signed by an agent, it is, of course, in
order to bind the principal, to be signed by the agent
in the name of his principal, adding his own signature
thereto, or, at least, signed by him in his character as
agent. But of this more will be said hereafter. 1
§ 12. In the next place, as to the form of a Promissory
Note. The common form has been already given. 2 But
no particular words are necessary, and the form may be
varied at the pleasure of the individual, so always that
it amounts, in legal effect, to a written promise for the
payment of money absolutely and at all events, 3 and it
interferes with no statute regulation. 4 Thus, an order
or promise to deliver a certain sum of money to A, or
to be accountable or responsible to A for a certain sum
i Post, § 65, § 66, § 67, § 68.
2 Ante, § 3, note.
SBayley on Bills, ch. 1,§ 1, p. 1, (5th edit. 1830) ; Id. §2, p. 4; Chitty
on Bills, ch. 12, p. 557, 558, (8th edit.) ; Brooks v. Elkins, 2 Mees. &
Wels. 74 ; Hitchcock v. Cloutier, 7 Verm. R. 22 ; Brown v. De Winter,
6 Manning, Gr. & Scott, R. 336.
4 Chitty on Bills, Pt. 1, ch. 12, p. 558, 559, (8th edit.)
16 P&OMISSOEY NOTES. [CH. I.
of money, or that A shall receive it from the maker, is
a good Promissory Note. 1 So a receipt for money " to
he returned when called for/' 2 or an acknowledgment,
"due to A a certain sum of money, payable on de-
mand," 3 or a promise "to pay, or to cause to he paid to
A," a certain sum of money, 4 or an instrument acknowl-
edging the receipt of money of A, promising to pay it
on demand with interest ; 5 or acknowledging the receipt
of money to be repaid in one month; 6 or acknowledg-
ing to have borrowed a certain sum of money, in promise
of payment thereof; 7 [or saying, " I guaranty to pay A
B, or his order " a certain sum. 8 ] The doctrine has even
been pressed farther; and where A signed a note in
these words: "Borrowed of I. S. £50, which I promise
not to pay," it was held to be a good Promissory Note,
and that the word not ought to be rejected, 9 as it well
might, upon the ground of being inserted by mistake,
or by fraud ; in either of which cases, it ought equally
to be held inoperative. [And a paper with the following
i Ibid. ; Morris v. Lee, 2 Ld. Raym. R. 1396, 1397; S. C. 8 Mod. R.
362. But see Home v. Redfearn, 4 Bing. N. Cas. 433 ; White v. North,
3 Welsby, Hurlstone & Gordon, R. 689.
2 Woodfolk v. Leslie, 2 Nott & M'Cord, S. Car. R. 585.
3 Pepoon v. Stagg, 1 Nott & M'Cord, S. Car. R. 102 ; Kimball ^.Hun-
tington, 10 Wend. R. 675.
4 Lovell v. Hill, 6 Carr. & Payne, 238; Chadwick v. Allen, 2 Str. R.
706.
5 Green v. Davies, 4 Barn. & Cressw. 235 ; Ashly v. Ashly, 3 Moore
& Payne, R. 186. See also, Wheatley v. Williams, 1 Mees. & Wels.
533.
6 Shrivel v. Payne, 8 Dowl. Pract. Cas. 441 ; 4 (English) Jurist, 485.
7 Ellis v. Mason, 7 Dowl. Pract. Cas. 598 ; S. C. 3 (English) Jurist,
406; 2 Will. Wool & Hodges, R. 70. But see Home v. Redfearn, 4
Bing. N. Cas. 433.
8 Bruce v. Westcott, 3 Barbour, Sup. Ct. R. 374.
9 Bayley on Bills, ch. 1, § 2, p. 6, (5th edit. 1830) ; Chitty on Bills, ch.
5, p. 150, 151, (8th edit.) ; Simpson v. Vaughan, 2 Atk. 32.
CH. I.] nature and requisites. ■ 17
words and letters, but omitting the word dollars has
been held to be a good note, viz. : " $300. For value
received, I promise to pay F. & Co. three hundred." 1
And it also seems that a writing in these words : " For
value received of C. & M., or order, thirty dollars and
eighty-three cents on demand and interest annually," is
by intendment a good note. 2 ] In all these, and the like
cases, it is not necessary that the payee should be ex-
pressly named, as will be more fully seen hereafter;
but it is sufficient that it can be fairly implied to whom
the promise is made. 3 The French Law, as laid down
by Pothier, is to the same effect. 4
§ 13. However, sometimes very nice cases arise, in
which it may well become a matter of controversy?
whether a particular instrument is a Promissory Note,
or not, where the parties are already stated, and the
sum is fixed. Thus, for example, where an instrument
was in these words : tt I undertake to pay to R. I., the
sum of £6.4, for a suit of, ordered by D. P.," and signed
by the promisor, a question was made whether it was
a Promissory Note or a guaranty ; and the Court held
it to be the latter. 5 So an instrument in these words :
"I, A B, owe Mrs. B, the sum of £6, which is to be
paid by instalments, for rent," was held not to be a
Promissory Note, because no time of payment was
stipulated. 6 ■
1 Sweetser v. French, 13 Mete. R. 262; Coolbroth v. Purinton, 16
Shepley, 469.
2 Cummings v. Gassett, 19 Vermont R. 308.
3 Greene v. Davies, 4 Barn. & Cressw. 235 ; Chadwick v, Allen, 2 Str.
R. 706.
4 Pothier, De Change, n. 31.
5 Jarvis v. Williams, 7 Mees. & Wels. 410.
6 Moffat v. Edwards, 1 Carr. & Marsh. R. 16.
2*
18 PROMISSORY NOTES. [CH. I.
§ 14. But it seems that to constitute a good Pro-
missory Note, there must be an express promise upon
the face of the instrument, to pay the money ; for a
mere promise implied by law, founded upon an acknowl-
edged inclebtment, will not be sufficient. Hence, it has
been held, that the mere acknowledgment of a debt,
without a promise to pay, is not a good Promissory
Note. 1 Thus, where A wrote on a slip of paper, " I. 0.
U. [I owe you] eight guineas," it was held to be a mere
due bill, and not a Promissory Note. 2 So, in a written
bargain for buying goods, a promise to pay the seller
the price in a limited time is not a Promissory Note ;
but a memorandum of the terms of the bargain. 3 But
if the promise were, " Due to A B, £20, payable to
Mm or order," or to him or bearer, it would be a Pro-
1 Bayley on Bills, ch. 1, § 2, p. 5, (5th edit.) ; Fisher v. Leslie, 1 Esp.
It. 426 ; Chitty on Bills, ch. 12, p. 558, (8th edit.) ; Guy v. Harris, Ibid,
note.
2 Ibid ; Curtis v. Richards, 1 Mann. & Grang. 46; Read v. Wheeler,
2 Yerger, R. 50, note. The distinction between the cases on this point is
extremely nice, not to say sometimes very unsatisfactory. In Kimball v.
Huntington, 10 Wend. R. 675, the words of the instrument were, " Due
A B, three hundred dollars payable on demand," and it was held a good
Promissory Note. In Russell v. Whipple, 2 Cowen, R. 536, the words
were, " Due A B, or bearer, &c. two hundred dollars and 26-100, for
value received ; " and it was held a good Promissory Note. Here there
was no express promise to pay ; but the promise was implied by law. The
ease of Luqueer v. Prosser, 1 Hill, N. Y. R. 256, is to the same effect.
The case of Brooks v. Elkins, 2 Mees. & Wels. 74, is also, on this point,
not unimportant. In that case the instrument was, " I. O. U. £ 20, to be
paid on the 22d instant. " And the Court held it to be either a Promissory
Note, or an agreement for the payment of JClO, and upwards; and in
either case required a stamp. In Waithman v. Elsee, 1 Carr. & Kirw.
35, it was held that the words "I. O. U. £ 85, to be paid May 5th," made
the instrument a Promissory Note. See Brown v. Gilman, 13 Mass. R.
158.
3 Bayley on Bills, ch. 1, § 2, p. 6, (5th edit. 1830); Ellis v. Ellis, Gow,
R. 216.
CH. I.] NATURE AND REQUISITES. 19
missory Note, for it contains more than the law would
imply, and becomes negotiable. 1 So a due bill, payable
at a specific time, would be held a good Promissory
Note for the like reason. 2
§ 15. A distinction partaking somewhat of a like
character exists in the French Law. There, a written
acknowledgment of a debt, with a promise to pay it,
constitutes a mere simple contract or evidence of debt,
and is called Billet Simple, and is distinguished in its
character and effects from a Bill of Exchange, and a
Promissory Note, each of which is supposed to be ne-
gotiable, and therefore entitled to peculiar privileges. 3
§ 16. Sometimes the language of the instrument is
ambiguous, and is capable of being interpreted either
as a Bill of Exchange, or as a Promissory Note. In
such a case, the person who receives it may, at his own
option, treat it as a Bill of Exchange, or as a Note
against the maker. 4 Therefore, an instrument, which is
in the form of a Note, but which, in addition, is ad-
dressed to a third person, who accepts it, is a Promissory
Note, and maybe so declared on accordingly. 5 So, if a
person draws an order upon himself, or payable by him-
self, [and indorses it over to a third person,] it is, or at
1 Curtis v. Rickards, 1 Mann. & Grang-. 46; Russel v. Whipple, 2
Cowen, R. 536.
2 Waithman v. Elsee, 1 Carr. & Kirw. 35.
3 Merlin, Repertoire, Billet, § 1, p. 148, (edit. 1827) ; Id. Ordre Billet
H, § 1, p. 229 ; Pothier, De Change, n. 32 ; Ante, § 2.
4 Bayley on Bills, ch. 1, § 2, p. 9. (edit. 1830) ; Edis v. Bury, 6 Barn.
& Cressw. 433; Shuttleworth v. Stephens, 1 Camp. R. 407; Chitty on
Bills, ch. 2, § 2, p. 28, 29, (8th edit.) ; Id. ch. 5, p. 150, 151, 187; Allan
v. Mawson, 4 Camp. R. 115 ; Roach v. Ostler, 1 Mann. & Ryan, R.
120.
5 Edis v. Bury, 6 Barn. & Cressw. 433; Block v. Bell, 1 Mood. &
Rob. R. 149.
20 PROMISSORY NOTES. [CH. I.
least, may, although, in form a Bill, he treated as a Pro-
missory Note ; * [and such a note, if indorsed in blank,
and put in circulation by the maker, becomes in effect a
note payable to the bearer. 2 ] So, an order drawn by A
B, as manager of a company, on the company for a cer-
tain sum, payable without acceptance to C D, or order,
may be declared on as a Promissory Note. 3
§ 17. In the next place, the instrument, in order to
be a valid Promissory Note, must be for the payment
of money, and for the payment of money only ; for if
it be a promise to pay money, and to do any other act,
or a promise to do any act, and not to pay money, it is
not, in the sense of the Commercial Law, a Promissory
Note, and it is not negotiable, and does not enjoy the
common privileges applicable to such negotiable paper. 4
Therefore, a written promise to deliver up horses and a
wharf, and to pay money on a particular day, has been
held not be a valid Promissory Note. 5 So, a written
promise for the delivery or payment of merchandise or
chattels, or other things in their nature susceptible of
1 Bayley on Bills, ch. 1, § 2, p. 8, (5th edit.) ; Chitty on Bills, ch. 2,
p. 28, (8th edit.) ; Starke v. Cheesman, Carth. R. 509; Dehers v. Harriot,
1 Shower, R. 163; Josceline v. Laserre, Fort. R. 282 ; Roach v. Ostler,
1 Mann. & Ryan, R. 120.
2 Brown v. De Winton, 6 Manning, Gr. & Scott, R. 3"6 ; Masters v.
Barrets, 8 Ibid. 433; S. C. 2 Carrington & Kirw. R. 715; Word v.
Mytton, 10 Adolph. & Ell. N. S. R. 805; Hooper v. Williams, 2 Welsh.
Hurlstone & Gordon, R. 13 ; Furniss v. Gilchrist, 1 Sanford, Superior
Ct. N. Y. R. 53. But see Flight v. McLean, 16 Mees. & Welsby, 51 ;
Heywood v. Wingate, 14 N. Hamp. R. 73; Post, § 36, a.
3 Miller v. Thomson, 4 Scott, R. 204 ; S. C. 3 Mann. & Grang. 576.
4 Bayley on Bills, ch. 1, § 4, p. 10, (5th edit.) ; Chitty on Bills, ch. 5,
p. 152, 153, (8th edit.) ; Id. ch. 12, p. 560 ; Story on Bills, § 43 ; Carle-
ton v. Brooks, 14 N. Hamp. 149.
5 Bayley on Bills, ch. 1, § 4, p. 10, (5th edit.) ; Chitty on Bills, ch. 5,
p. 152, 153, (8th edit); Id. ch. 12, p. 560; Martin v. Chauntry, 2 Str.
R. 1271. But see Owen v. Barnum, 2 Gilman, Illinois, R. 461.
CH. I.] NATURE AND REQUISITES. 21
deterioration and loss, and variation in quality or value,
is not a valid Promissory Note. 1 So, a written promise
to pay the bearer a certain sum of money in goods, [or
in grain,] is not a valid Promissory Note. 2 But, pro-
vided the note he for the payment of money only, it is
wholly immaterial in the money or currency of what
country it is made payable. It may be payable in
the currency or money of England, or France, or Spain,
or Holland, or Italy, or of any other country. It may
be payable in coins, such as guineas, ducats, doub-
loons, crowns, or dollars, or in the known currency of
the country, as in pounds sterling, livres, tournoises,
francs, florins, &c. ; for in all these and the like cases,
the sum of money to be paid is fixed by the par of Ex-
change, or the known denomination of the currency,
with reference to the par. 3 Heineccius, upon this sub-
ject, adds, that the species of money should be expressed,
otherwise the current money will be intended. 4
§ 18. It is upon the like ground that it is held essen-
tial to a Promissory Note, that it should be for the pay-
ment of money in specie. 5 Therefore, a promise to pay
a certain sum of money " in good East India Bonds," 6
or "in cash, or Bank of England notes," 7 or "in bank
1 Ibid. ; Jerome v. Whitney, 7 John. R. 321 ; Thomas v. Roosa, 7 John.
R. 461 ; Peay v. Pickett, 1 Nott & M'Cord, R. 254 ; Rhodes v. Lindly, 3
Hamm. Ohio,R. 51 ; Atkinson v. Mantes, 1 Cowen, R. 691 ; Jones v. Fales,
4 Mass. R. 245 ; Lawrence v. Dougherty, 5 Yerger, R. 435 ; Ellis v. El-
lis, Gow, R. 216.
2 Clark v. King, 2 Mass. R. 524.
3 Story on Bills, § 43, 44, 45 ; Chitty on Bills, ch. 5, p. 153, (8th edit.) ;
Pardessus, Droit Comm. Tom. 2, art. 204.
4 Heinnecc. de Camb. cap. 5, § 5, 12.
5 Bayley on Bills, ch. 1, § 4, p. 10, (5th edit.)
6 Anon. Bull. N. P. 272.
7 Bayley on Bills, ch. 1, § 4, p. 10, (5th edit.) ; Chitty on Bills, ch. 5,
22 PROMISSORY NOTES. [CH. I.
bills or notes/' * or " in foreign bills," 2 or " in current
bank notes," 3 or to pay a sum of money or surrender
I. S. to prison, 4 is not a good Promissory Note. So, the
note must not only be for the payment of money, but
of money only. Therefore a written promise to pay a
certain sum of money, " and all fines according to rule,"
is not a valid Promissory Note. 5
p. 154, (8th edit. 1833) ; Ex parte Imeson, 2 Rose, R. 225 ; Ex parte
Davison, Buck, R. 31.
1 M'Cormick v. Trotter, 10 Serg. & Rawle, R. 94 ; Leiber v. Good-
rich, 5 Cowen, R. 186.
2 Jones v. Fales, 4 Mass.' R. 245 ; Young v. Adams, 6 Mass. R. 182,
183; Springfield Bank v. Merrick, 14 Mass. R. 322.
3 Gray w.Donahoe,4 Watts, R/400 ; Whiteman v. Childress, 6 Humph.
R. 303 ; Foy v. Rousseau, 3 McLean, R. 106. In some of the Ameri-
can States this doctrine has not been strictly adhered to. Thus, in New
York, it has been held, that a Note "payable in York State Bills or spe-
cie," is a good Promissory Note, upon the ground that the language meant
the same as lawful current money of the State, that is, as bank bills of
banks of the State, which, in common usage and understanding, are re-
garded as cash. Keith v. Jones, 9 John. R. 120. So, in a subsequent
case in New York, a Note, " payable in bank notes current in the city of
New York," was held a good Promissory Note upon the like ground. And.
the Court said, that if payable in bank notes generally, the same doctrine
would apply. Judah v. Harris, 19 John. R. 144. [So, also, in Ohio, a
note payable " in current Ohio bank notes," has been held to be negoti-
able. Swetland v. Creigh, 15 Ohio R. 118; White v. Richmond, 16
Ohio, 5. So, also, in Mississippi, with a note payable " in notes of the
banks of Mississippi, payable and negotiable in any bank " in that
State. Besancon v. Shirley, 9 Smedes & Marshal], R. 457. See,
also, Cockrill v. Kirkpatrick, 9 Missouri, R. 697; Bizzell v. Williams, 3
English, Arkansas, R. 138.] It is very difficult upon principle or authority
to sustain these decisions ; for bank notes are not in reality money, nor are
they a good tender, if objected to ; and, although treated in common busi-
ness as cash, they are distinguishable from it, and often pass at a variable
discount. See also, Stewart v. Donelly, 4 Yerger, R. 177 ; Deberry v.
Darnell, 5 Yerger, R. 451 ; Seeley v. Bisbee, 2 Vermont R. 105.
4 Chitty on Bills, ch. 5. p. 154, (8th edit.) ; Smith v. Boheme, 3 Ld
Raym. 67, cited 2 Ld. Raym. 1362, 1396 ; Bayley on Bills, ch. 1, § 6,
p. 16, (5th edit.)
5 Ayrey v. Fearnsides, 4 Mees. & Wels. 168.
CH. I.] nature and requisites. 23
§ 19. The French Law proceeds upon similar grounds.
In order to constitute the note a valid Promissory Note,
it must be for the payment of money, and mention the
sum to be paid. 1 Indeed, this seems so fundamental a
principle in all negotiable paper designed to circulate
as currency, that it may well be presumed to be a
matter of universal adoption in the commercial world.
Heineccius so manifestly understands the doctrine, and
holds it to be a promise to pay a certain sum of money,
certain pecunice summam?
§20. In the next place, to make a written promise a
valid Promissory Note, it must be for a fixed and certain
amount, and not for a variable amount. 3 Therefore, if
it be for a certain sum of money, with all other sums
that may be due to the payee, it is not a valid Promis-
sory Note, even for the sum which it specifies. 4 So, a
promise to pay a specified sum of money and interest,
and also " the demands of the Sick Club at H., in part
of interest, and the remaining stock and interest to be
paid on demand " to the payee, is not a valid Promis-
sory Note. 5 So, a written promise to pay a certain
sum, "first deducting thereout any interest or money
which I. S. might owe the maker on any account," is, on
the same account, not a good Promissory Note. 6 So, a
1 Pothier, De Change, n. 30; Code de Comm. art. 188; Pardessus,
Droit Comm. Tom. 2, art. 334, 478 ; Dupuy de la Sena, De Change, ch.
19, p. 191, 192 ; Jousse, Sur L'Ord. 1673, tit. 5, art. l,p. 67, 68; Nou-
gnier, De Change, Tom. 1, Liv. 4, § 1, p. 493, 494, 496.
2 Heinnec. de Camb. cap. 1, § 9; Id. cap. 2, § 1-4; Scaccia, De
Comm. § 1, Quest. 5, p. 169, n. 2.
3 Bayley on Bills, ch. 1, § 4, p. 11, (5th edit.) ; Story on Bills, § 42.
4 Smith v. Nightingale, 2 Stark. R. 375.
5 Bolton v. Dugdale, 4 Barn. & Adolph. 619.
6 Chitty on Bills, ch. 5, p. 153, (8th edit.) ; Barlow v. Broadhurst,
4 Moore, R. 471 ; Ante, § 18.
24 PROMISSORY NOTES. [CH. I.
written promise to pay a certain, sum, ic and all fines
according to rule," 2 or a written promise to pay certain
sums in instalments, a part " to go as a set off for an
order of R. to G., and the remainder of his debt from C.
D. to him/' 2 or a written promise "to pay $1000, or
what might be due after deducting all advances and
expenses," fall under the same category, and are void
as Promissory Notes. 3 The amount to be paid, how-
ever, if it be a fixed sum, need not be expressed in
words ; but it will be sufficient if it be in figures. 4
§ 21. The French Law, like ours, requires the sum
which is to be paid to be certain and fixed. 5 The sum
is usually expressed in letters, rather than by ciphers
or figures, so as to avoid the peril of any alteration of
the sum. But if it is expressed in ciphers or figures,
it will be good by our law, as well as by the French
Law. 6 Heineccius lays down the same as the general
law, although he admits, that in some countries, the
sum is required to be written in letters and words, as
well as in ciphers or figures. 7 Where the sum in fig-
ures on the superscription differs from the sum in words
in the body of the instrument, the latter is by our law
deemed the true sum. 8 Marius gives as a reason for
1 Ayrey v. Fearnsides, 4 Mees. & Wels. 168 ; Ante, § 18.
2 Davies v. Wilkinson, 10 Adolp. & Ellis, 98 ; Clarke v. Percival,
2 Barn. & Adolp. 661.
3 Cushman v. Haynes, 20 Pick. R. 132.
4 Nugent v. Roland, 12 Martin, R. 659 ; Post, § 21.
5 Code de Comm. art. 188 ; Pardessus, Droit Comrn. Tom. 2, art. 334,
478; Pothier, De Change, n. 35, Story on Bills, § 44.
6 Pothier, De Change, n. 35 ; Story on Bills, § 42, note ; Locre, Esprit,
du Code de Comm. Tom. 1, Liv. 1, tit. 8, ^ 1, p. 336, 337; Chitty on
Bills, ph. 5, p. 181, (8th edit.)
7 Heinnec. de Camb. cap. 4,^5; Id. § 12.
8 Chitty on Bills, ch. 5, p. 182, (8th edit.) ; Saunderson v. Piper,
5 Bing. N. Cas. 425 ; Id. 560 ; Story on Bills, § 42, and note.
CH. I.] nature and requisites. 25
such a decision, w-hich certainly seems founded in com-
mon sense and experience, that a man is more apt to
commit an error with his pen in writing a figure than
he is in writing a word. 1 Whether the same rule would
apply if the sum were in figures in the body of the in-
strument, and in words in a memorandum or marginal
note on the same, does not appear to have been decided ;
but it should seem that the words ought to be deemed
the better and more solemn statement, and therefore
ought to govern. 2
§ 22. In the next place, to make a written Note for
the payment of money a valid Promissory Note, the
money must be payable absolutely, and at all events,
and not be subject to any condition or contingency. 3
Thus, a written promise to pay money, " provided the
terms mentioned in certain letters shall be complied
with," 4 or " provided A shall not be surrendered to prison
within a limited time," 5 or i( provided A shall not pay
the money by a particular day," 6 or a provided A shall
leave me sufficient, or shall be otherwise able to pay
it." 7 or " when A shall marry," 8 or " if A shall marry,"
1 Marius on Bills, 33, 34.
2 Story on Bills, § 42, and note.
3 Bayley on Bills, ch. 1, $ 6, p. 16, (5th edit. 1830) ; Chitty on Bills,
ch. 5, p. 154, 155, (8th edit.) ; Id. ch. 12, p. 560, 561 ; Palmer v. Pratt,
2 Bing. R. 185 ; 9 Moore, R. 358 ; Carlos v. Fancourt, 5 Term, R. 482 ;
Richards v. Richards, 2 Barn. & Adolp. 447 ; Drury v. Macaulay, 16 Mee-
son & Welsby, R. 140; Story on Bills, § 42, 48.
4 Ibid. ; Kingston v. Long, 4 Doug. R. 9.
5 Ibid. ; Smith v. Boheme, Gilb. Cas. Law & Eq. 93 ; 3 Ld. Raym.
67, cited 2 Ld. Raym. 1362, 1396 ; 7 Mod. R. 418.
6 Ibid. ; Appleby v. Biddolph, cited 8 Mod. 363 ; 4 Vin. Abr. 240, pl„
16; Robins w.May, 11 Adolp. & Ellis, 213; S. C. 3 Perr. & Davis.
1479 ; Ferris v. Bond, cited Bailey on Bills, ch. 1, § 6, p. 17, (5th edit.)
Ubid. ; Roberts v. Peake, 1 Burr. R. 323.
8 Ibid. ; Chitty on Bills, ch. 5, p. 155, (8th edit.) ; Beardsley v. Bald-
PROM. NOTES. 3
26 PROMISSORY NOTES. [CH. I.
or "if I shall marry within two months," or "four years
after date, if I am then living, otherwise this Note to
be null and void," 1 or u provided A shall not return to
England, or his death be certified, before" the day
appointed for payment, 2 or " to pay when my circum-
stances will admit, without detriment to myself or fa-
mily," 3 or to pay, tl provided the ship Mary arrives free
from capture or condemnation," 4 or to pay when the
payee " completes the building according to contract," 5
or " when certain carnages are sold," 6 or to pay a cer-
tain sum by instalments at certain specified future pe-
riods, but all installed payments to cease at the death
of the payee, 7 or to pay A (a sailor) his wages, " if he
do his duty as an able seaman," 8 or " to pay on the sale
or produce immediately when sold of the White Hart
Inn, and the goods, &c." 9 is not a valid Promissory
Note ; for it purports to make the payment depend upon
a contingency or uncertainty. In all these cases, it
will make no difference that the contingency does in
win, 2 Str. R. 1151 ; Pearson v. Garrett, 4 Mod. R. 242; S. C Carth.
R. 227; Colehan v. Cooke, Willea, R. 397.
1 Chitty on Bills, ch. 5, p. 155, (8ih edit.) ; citing Braham v. Bubb ;
"Worley v. Harrison, 3 Adolp. & Ellis, 669 ; S. C. 3 Nev. & Mann. 173.
2 Morgan v. Jones, 1 Cromp. & Jerv. 162 ; S. C. 1 Tyrw. R. 29 ; Chitty
on Bills, ch. 5, p. 155, (8th edit.)
3 Ex parte Tootell, 4 Ves. 372.
4 Palmer v. Pratt, 2 Bing. R. 185 ; Coolidge v. Ruggles, 15 Mass. R.
387.
5 See Stevens v. Blunt, 7 Mass. R. 240. This case turned upon another
point, that the money was, upon the true construction of the Note, payable
at a fixed day.
6 De Forrest w.Frary, 6 Cowen, R. 151.
7 Worley v. Harrison, 3 Adolp. & Ellis, 669.
8 Chitty on Bills, ch. 5, p. 155, (8th edit.) ; Alves v. Hodgson, 7 Term,
R. 242.
9 Hill v. Halford, 2 Bos. & Pull. 413.
CH. I.] NATURE AND REQUISITES. 27
fact happen afterwards, on which that payment is to
become absolute ; for its character as a Promissory
Note cannot depend upon future events, but solely upon
its character when created. 1
§ 23. The like rule will apply to promises in writing
for money, which per se might properly be deemed
Promissory Notes, if there is upon the same paper a
contemporaneous memorandum, which shows it to be
for a specific purpose, involving contingencies and un-
certainties. 2 Thus, a memorandum on a Note, that it is
taken "for securing the payment of all such balances
as shall be due from one of the makers, to the extent
of the sum mentioned therein," 3 or that " if any dispute
shall arise respecting the subject, which is the conside-
ration of it, it shall be void," 4 will deprive the instru-
ment of the character of a Promissory Note. For the
like reason, an instrument, acknowledging the receipt
of drafts for the payment of money, and promising to
pay the money specified in the drafts, is not a Promis-
sory Note ; for the payment of the money is contingent,
and depends upon the payment of the drafts. 5
§ 24. However, in order to make a Note invalid as a
Promissory Note, the contingency to avoid it must be
1 Hill v. Halford, 2 Bos. & Pull. 413.
2 Bayley on Bills, ch. 1, § 14, p. 41, 42, (5th edit.) ; Chitty on Bills,
ch. 5, p. 160, (8th edit.) ; Id. 163. See Pool v. McCrary, 1 Kelly, R.
319.
3 Bayley on Bills, ch. 1, § 6, p. 20, (5th edit.) ; Leeds v. Lancashire,
2 Camp. R. 205 ; Chitty on Bills, ch. 5, p. 160, (8th edit.) ; Id. 161.
4 Bayley on Bills, ch. 1, § 6, p. 20, (5th edit.) ; Id. § 14, p. 41, 42 ;
Hartley v. Wilkinson, 4 Camp. R. 127 ; S. C. 4 Maule & Selw. 25 ;
Chitty on Bills, ch. 5, p. 161, (8th edit.)
5 Bailey on Bills, ch. 1, § 6, p. 21, (5th edit.) ; Williamson v. Bennett,
2 Camp. R. 417; Chitty on Bills, ch 5, p. 155, (8th edit.) ; Id. 161.
28 PROMISSORY NOTES. [CH. I.
apparent, either upon the face of the Note, or upon
some contemporaneous written memorandum on the
same paper ; 1 for, if the memorandum is not contem-
poraneous, or if it be merely verbal in each case, what-
ever may be its effect as a matter of defence between
the original parties, it is not deemed to be a part of the
instrument, and does not affect, much less invalidate, its
original character. 2 This is a general rule, not confined
to Bills of Exchange, but it extends to all written con-
tracts ; 3 and the same law prevails in France with re-
spect to Bills, where parol evidence is not ordinarily
admitted to extend or qualify the terms of those instru-
ments. 4 Therefore, where a Promissory Note, on the
face of it, purported to be payable on demand, it was
held, that parol evidence was not admissible to show
that, at the time of making it, it was agreed that it
should not be payable until after the decease of the
testator, 5 or until certain estates of maker had been
sold ; 6 or that it should not be payable, if the maker's
allowance under a commission against him should not
be sufficient to pay the amount • 7 or, that it should not
be payable until a final dividend of a bankrupt's estate
should have been made. 8 So, if a note be payable at
nine months after date, parol evidence of the holder's
1 Richards v. Richards, 2 Barn. & Adolp. 447, 454, 455.
2 Chitty on Bills, ch. 5, p. 160, 161, 163, (8ih edit.)
3 Sugd. Vend. & Purch. tit. Evidence; Phillips & Ames on Evid. p. 753,
(edit. 1838.)
4 Pardessus, Droit Comm. Tom. 2, art. 262.
5 Woodbridge v. Spooner, 3 Barn. & Aid. 233 ; S. C. 1 Chitty, R.
661.
6 Free v. Hawkins, 8 Taunt. 92 ; S. C. Holt, C. N. P. 556.
7 Rawson v. Walker, 1 Stark. R. 361 ; and Campbell v. Hodgson, Gow,
C. N. P. 74.
8 Rawson v. Walker, 1 Stark. R. 361. See Ante, § 22.
CH. I.]
NATURE AND REQUISITES. 29
agreement to give the maker time, if, at maturity it
was not convenient to pay, is inadmissible. 1 So, where
a Promissory Note, was on the face of it made payable
on demand, it was decided that oral evidence of an agree-
ment, entered into when it was made, that it should not
be paid until a given event happened, is inadmissible. 2
1 Dukes v. Dow, cited Chitty on Bills, eh. 5, p. 162, note, (8th edit.)
2 Mosely v. Hanford, 10 Barn. & Cressw. 729. Declaration against the
maker of a Promissory Note for £233, payable to the bankrupt or his order
on demand. Plea, general issue. At the trial before Alexander, Ld. C.
B., at the last assizes for the county of Derby, the handwriting of the de-
fendant to the Note set out in the declaration was proved. Evidence was
given on the part of the defendant, that he and one Richardson, being in
partnership as booksellers, at Derby, agreed to purchase certain premises
belonging to the bankrupt, and it was stipulated that the bankrupt should
deliver up possession by the 1st of August, 1825, or pay for the time he
should keep possession beyond that day a rent agreed upon between the
parties. That on the 1st of August, 1825, Richardson and the defendant
paid up the whole of the purchase-money, except j£233 ; and that the
defendant, with the consent of the bankrupt, gave his sole note for the
balance, jt being expressly stipulated, that it was to be paid on the bank-
rupt's delivering up possession of the premises, and accounting for the
rent on the 1st of August. It was further proved, that part of the pre-
mises continued in possession of the bankrupt's sister down to and since
the commencement of the action. A verdict having been found for the
plaintiff, Denman, on a former day in this term, moved for a new trial, on
the ground that the verdict was against the weight of evidence. But the
Court intimated a doubt whether parol evidence could be given to restrain
the effect of a Promissory Note absolute on the face of it, and referred to
Woodbridge v. Spooner, 3 Barn. & Aid. 233, as an authority to the con-
trary ; and Parke, J. observed, that every Bill or Note imported two
things : value received, and an engagement to pay the amount on certain
specified terms ; that evidence was admissible to deny the receipt of value,
but not to vary the engagement. Lord Tenterden, C. J. afterwards deli-
vered the judgment of the Court, and, after stating the facts of the case,
proceeded as follows : — " When this application for a new trial was made,
it occurred to the Court, that the evidence given on behalf of the defend-
ant ought not to have been received, on the ground that evidence of an
agreement that the note was not to be put in suit until a given event hap-
pened was not admissible ; the effect of it being to contradict by parol' the
Note itself; and upon consideration we are of opinion, that upon principle
3*
30 PROMISSORY NOTES. [CH. I.
§ 25. The like rule will apply in cases, where a writ-
ten promise for money, which otherwise would be a good
Promissory Note, is made payable out of a particular
fund, so that the paj^ment is to depend upon the exist-
ence or sufficiency of that fund ; for that will render it
invalid as a Promissory Note. 1 Thus, a Note for the
payment of money u out of my growing subsistence," 2
or " out of the fifth payment when due," 3 or " out of
money when received," 4 or " out of rents," 5 [" or out of
as well as authority that evidence was not admissihle." Chitty on Bills,
ch. 5, p. 163, (8th edit.) Several cases to that effect are collected in Sel-
wyn's-Nisi Prius, 394; Hoare v. Graham, 3 Camp. R. 57 ; Freew. Haw-
kins, 8 Taunt. R. 92.
1 Bayley on Bills, ch. 1, § 6, p. 18, 19, 20, (5th edit.) ; Chitty on Bills,
ch. 5, p. 157, 158, 159, (8th edit.) ; Story on Bills, § 46.
2 Ibid. ; Josceline v. Lassere, Fortes. R. 281 ; 10 Mod. R. 294, 316.
3 Ibid. ; Haydock v. Lynch, 2 Ld. Rayrn. 1563.
4 Ibid. ; Dawkes v. Lord Deloraine, 2 VV. Black. R. 782 ; 3 Wils. R.
207 ; Yeates v. Grove, 1 Ves. jr. R. 280, 281 ; Carlos v. Fancourt, 5 Term
R. 482.
5 Ibid. See Jenny v. Herle, 2 Ld. Raym. 1362 ; 1 Str. R. 591, 592 ;
8 Mod. R. 265 ; Fortes. R. 282 ; Dawkes v. Lord Deloraine, 3 Wils. R.
207, 213. In this last case, Lord Chief Justice De Grey, in delivering
the opinion, speaking of a Bill of Exchange, (and the same rule is appli-
cable to a Promissory Note,) said : — " The instrument or writing, which
constitutes a good Bill of Exchange, according to the law, usage, and
custom of merchants, is not confined to any certain form or set of words,
yet it must have some essential qualities without which it is no Bill of
Exchange ; it must carry with it a personal and certain credit, given to the
drawer, not confined to credit upon any thing or fund ; it is upon the credit
of a person's hand, as on the hand of the drawer, the indorser, or the per-
son who negotiates it ; he to whom such Bill is made payable or indorsed
takes it upon no particular event or contingency, except the failure of the
general personal credit of the persons drawing or negotiating the same.
In the present case, the drawer did not make this writing, or instrument,
upon his own personal general credit, that in all events he would be liable
in case Brecknock should not pay it out of William Steward's money ;
but both the drawer and the person to whom payable, look only at lhefund ?
and no personal credit is given to the defendant, the drawer."
CH. I.] NATURE AND REQUISITES. 31
the net proceeds of ore to be raised and sold from a
certain ore bed/'] 2 is not a valid Promissory Note, on
account of the uncertainty, whether the subsistence, or
rents, or payments, or money, will become due or be
received.
§ 26. But here it is important to bear in mind the
distinction between cases where a Note is payable out
of a particular fund, and it rests in contingencies whe-
ther there will be any such fund or not, or whether it
will be sufficient, and cases where the fund is only re-
ferred to as an absolute existing fund, as the conside-
deration of the promise, and on account of which the
money is to be paid. 2 In the latter cases, no contin-
gency is contemplated ; the money is to be paid at all
events ; and the fund is referred to only to show why
the promise is made, and so pro tanto to discharge the
maker of the Note. Thus, a Note promising to pay A
B or order a sum of money, " being money which I have
received on his account," 3 or "which I have received as
his half-pay," 4 or " which I owe him for freight," 5 or
u which is a portion of his money deposited with me in
security for the payment thereof," 6 or to pay to A B a
certain sum of money, " so much being to be due from
me to C D, my landlady, at Lady Day next, who is in-
debted in that sum to A B," 7 or to pay A B or order
1 Worclen v. Dodge, 4 Denio, R. 159.
2 Bayley on Bills, ch. 1, ^ 6, p. 22,23, (5th edit.) ; Chitty on Bills, ch.
5, p. 158, 159, (8th edit.); Story on Bills, § 47.
3 Ibid. See Haussoullier v. Hartsinck, 7 Term R. 733.
4 Ibid. See Goss v. Nelson, 1 Burr. R. 226.
5 Ibid. ; Pierson v. Dunlop, Cowp. R. 571.
6 Ibid. ; Haussoullier v. Hartsinck, 7 Term R. 733.
7 Ibid.; Anon. Select Cases, 39, cited Chitty on Bills, ch. 5, p. 159,
(8th edit.)
32 PROMISSORY NOTES. [CH. I.
" on account of wine had from him/' l will he a valid
Promissory Note, as importing the consideration only,
for which it is given. So, a promise to pay A B or
bearer a certain sum at sight, " by giving up clothes
and papers, &c." will be a good Promissory Note, if it
can be gathered from the attendant facts, that the clothes
and papers had been previously given up to the maker ;
for, under such circumstances, the words would only
import the value received. 2
§ 27. In the next place, to constitute a valid Promis-
sory Note, it should be for the payment of money at
some fixed period of time, or on some event which must
inevitably happen. 3 This is indeed sufficiently apparent
and may be deduced as a corollary from what has been
already said. Therefore, a written promise to pay a
certain sum of money at the death of a party to the in-
strument, or at a limited time after the death of such
party, or of a third person, is a valid Promissory Note ;
because it must inevitably become due at some future
time, since all men must die, although the exact period
is uncertain. 4 Upon a supposed like ground, it has been
* Buller v. Crips, 6 Mod. R. 29.
2 Dixon v. Niittall, 1 Cromp. Mees. & Rose. 307; S. C. 1 Carr. &
Payne, 320; 4 Tyrwh. R. 1013.
3 Story on Bills, § 50. See Ante, § 22 ; Moffat v. Edwards, 1 Carr. &
Marsh. R. 16. See also, Walker v. Roberts, 1 Carr. & Marsh. R. 590.
4 Story on Bills, § 47 ; Bayley on Bills, ch. 1, § 6, p. 24, 25, (5th edit.) ;
Chitty on Bills, ch. 5, p. 156, (8th edit.); Id. ch. 12, p. 56J , Bristol v.
Warner, 19 Connect. R. 7 ; Colehan v. Cooke, Willes, R. 396 ; 2 Str. R.
1217. In this last case, the Note was payable ten days after the death of
the maker's father. The case was argued several times, and Lord Chief
Justice Willes, in delivering the opinion of the Court, said: — "I will
here take notice of all the cases which were cited to the contrary, and will
show that they all stand on a different foot, and are plainly distinguishable
from the present. For they are all of them cases where either the fund
CH. I.]
NATURE AND REQUISITES. 33
held, that a written promise to pay a certain sum in two
months after a certain ship in the government service
out of which the payment was to be made is uncertain, or the time of pay-
ment is uncertain, and might or might not ever happen ; whereas, in the
present case, there is no pretence that the fund is uncertain, and the time
of payment must come, because the father, after whose death they are
made payable, must die one time or other. The case of Pearson v. Gar-
rett, 4 Mod. R. 242, and Comb. 227, was thus : the defendant gave a Note
to pay sixty guineas when he married B, and judgment was given for the
defendant, because it was uncertain whether he would ever marry her or
not, so the time of payment might never come. In the case of Jocelyn v.
Lacier, P. 1 Geo. 1, B. R. (10 Mod. R. 294, 316,) the Bill was drawn on
Jocelyn to pay so much every month out of his growing subsistence ; how
long that would last no one could tell, or whether it would be sufficient for
that purpose ; and therefore the Bill was holden not to be good, because the
fund was uncertain. In the case of Smith v. Boheme, M. 1, Geo. 1, B. R.
cited 2 Ld. Raym. 1362, the promise in the Note was to pay £10, or sur-
render a person therein named; if, therefore, he surrendered the person,
there was no promise to pay any thing, and therefore, the Note was uncer-
tain and not negotiable. In the case of Appleby v. Biddulph, P. 2 Geo. 1,
cited 8 Mod. 363, a promise to pay if his brother did not pay by such a
time ; held not to be within the statute, because it was uncertain whether
the drawer of the Note would ever be liable to pay or not. In the case
of Jenny v. Herle, Tr. 10 Geo. 1, (2 Ld. Raym. 1361,) a promise to pay
such a sum out of the income of the Devonshire mines ; held not a pro-
mise within the statute, because it was uncertain whether the fund would
be sufficient to pay it. So in the case of Barnsley v. Baldwin, P. 14
Geo. 2, B. R. (7 Mod. R. 417,) the promise was, as in the case of Pear-
son v. Garrett, to pay such a sum on marriage ; and held not to be within
the statute, for the same reason. And as these Notes are plainly not
within the intent of the statute, because not negotiable ab initio, so, when
the words themselves come to be considered, they are not within the words
of it, because the statute only extends to such notes where there is an ab-
solute promise to pay, and not a promise depending on a contingency, and
where the money at the time of the giving of the Note becomes due and
payable by virtue thereof, (so are the words of the statute,) and not where
it becomes due and payable by virtue of a subsequent contingency, which
may perhaps never happen, and then the money will never become paya-
ble at all. And it can never be said, that there is a promise to pay money
or that money becomes due and payable by virtue of a note, when, unless
such subsequent contingency happen, the drawer of the Note does not pro-
mise to pay any thing at all. But the present Notes, and those cases
34 PROMISSORY NOTES. [CH. I.
shall be paid off, has been held to be a good Promissory
Note ; because, it is said, it is morally certain that the
government will pay off its ships. 1 There is certainly
some reason to doubt, whether this last case falls pro-
perly within the doctrine ; for it can scarcely be af-
firmed as a general truth, that governments will or do
pay all their just debts ; and unless this can be affirmed,
there is no moral certainty that any particular debt will
be paid. 2
§ 28. It is this certainty, either moral or physical, at
where such Notes have been holden to be within the statute, do not depend
on any such contingency, but there is a certain promise to pay at the
time of the giving of the Notes, and the money by virtue thereof will
certainly become due and payable one time or other, though it is uncertain
when that time will come. The Bills, therefore, of Exchange, commonly
called Billa Nundinales were always holden to be good, because, though
these fairs were not always holden at a certain time, yet it was certain that
they would be held. The case of Andrews v. Franklin, H. 3 Geo. 1, B.
R. (1 Str. R. 24,) depends on the same reason ; for there the Note was to
pay such a sum two months after such a ship was paid off ; and held good
because the ship would certainly be paid off one time or other. The case
of Lewis v. Ord. T. 8 & 9 Geo. 2, B. R. (Cunn. on Bills, 113,) was ex-
actly the like case, and determined on the same reason. As to the objec-
tion, that these are not negotiable Notes, because the value of them can-
not be ascertained, the argument is not founded on fact, because the value
of a life, when the age of a person is known, is as well settled as can be;
and there are many printed books in which these calculations are made.
But if it were otherwise, the life of a man may be insured, and by that the
value will be ascertained. And the same answer will serve to the objec-
tion which I before mentioned against such Bills of Exchange. There
was another objection taken, that the drawer might have died before his
father, and then these Notes would have been of no value ; but there is
plainly nothing in this objection, for the same may be said of any Note
payable at a distant time, that the drawer may die worth nothing, before
the Note becomes payable."
1 Andrews v. Franklin, 1 Str. R. 24 ; Evans v. Underwood, 1 Wils. R.
262.
2 See Bayley on Bills, ch. 1, § 6, p. 24, (5th edit.) ; Chitty on Bills,
ch. 5, p. 156, (8th edit.) ; Id. ch. 12, p. 501.
CH. I.] NATURE AND REQUISITES. 35
least to the extent of human foresight, which lies at the
foundation of the rule. 1 Hence, a written promise to
pay a certain sum of money by instalments at future
specified periods, but the instalments to cease at the
payee's death, is not a valid Promissory Note ; for it
may be, that the payee may die before any instalment
becomes due, and therefore the money is payable only
on a contingency. 2 So, a promise to pay money by in-
stalments, not stating when, is not a good Promissory
Note, on account of the uncertainty of the time. 3 Hence,
also, a written promise to pay money, when the maker
or the payee shall come of age, will not be a good Pro-
missory Note ; for non constat, that he will ever arrive at
that period of life. 4 But it will be otherwise, if, from
the other language of the instrument, it can be gathered
that a period is absolutely fixed for the payment of the
money at all events, and that the age of the party is re-
ferred to, not as a contingent event, but merely as a mode
of ascertaining that period. Thus, if the maker promises
to pay, when the payee shall come of age, to wit, on the
first day of January, 1850, it will be held a valid Promis-
sory Note ; for, in such a case, the Note is absolutely pay-
able on the day specified, whether the payee be then
living or not. 5 It is to this same principle of interpreta-
tion, that we are to attribute the decision in another case,
1 Palmer v. Pratt, 2 Bing. R. 185; Carlos v. Fancourt, 5 Term R.
482.
2 Worley v. Harrison, 3 Adolp. & Ellis, 669.
3 Moffat v. Edwards, 1 Carr. & Marsh. R. 16.
4 Goss v. Nelson, 1 Burr. R. 226; Bayley on Bills, ch. 1, § 6, p. 23,
24, (5th edit.) ; Chitty on Bills, ch. 5, p. 156, (8th edit.) ; Id. ch. 12,
p. 561.
5 Goss v. Nelson, 1 Burr. R. 226 ; Bayley on Bills, ch. 1, § 6, p. 23,
(5lh edit.) ; Chitty on Bills, ch. 5, p. 156, (8th edit.) ; Id. ch. 12, p. 561.
36 PROMISSORY NOTES. [CH. I.
where the maker promised to pay a certain sum " by the
20th of May, 1807, or when he (the payee) completes the
building according to contract," and the Court held the
instrument to be a valid Promissory Note, it being pay-
able absolutely at a day certain (meaning the 20th of
May.) 1 So, where a Note was made payable by instal-
ments, with a proviso, that if default be made in pay-
ment of any part of the first instalment, the whole shall
become immediately payable, has been held to be a good
negotiable note; for the time is absolutely fixed, and
must inevitably occur at the time when the last instal-
ment becomes due, if not by the prior event of non-
payment of the first instalment. 2
§ 29. Perhaps there may be thought to be some
nicety in the application of this doctrine to some partic-
ular classes of cases, which, at first view, seem to import
that payment is to be made only upon the occurrence
of events which may never happen, and yet, which are
uniformly held to be absolutely payable at all events.
Thus, if a Note be made payable at sight, or at ten days
after sight, or in ten clays after notice, or on request, or
on demand ; in all these and the like cases, the Note
will be held valid as a Promissory Note, and payable at
all events, although, in point of fact, the payee may die
without ever having presented the Note for sight, or
without having given any notice to, or made any request
or demand upon the maker for payment. 3 But the law
1 Stevens v. Blunt, 7 Mass. R. 240.
2 Carlow v. Kinealy, The (English) Jurist for Dec. 16, 1843, p. 1115.
3 Chitty on Bills, ch. 5, p. 156, (8th edit.) ; Dixon v. Nuttall, 1 Cromp.
Mees. & Rose. 307 ; S. C. 6 Carr. & Payne, R. 320 ; 4 Tyrwh. R. 1013 ;
Clayton v. Gosling, 5 Barn. & Cressw. 360; Rumball v. Ball, 10 Mod.
R. 38. See also, Jousse, Sur L'Ord. 1673, tit. 5, art. 1, p. 67, 68 ; Po-
rtlier, De Change, n. 32.
CH. I.] NATURE AND REQUISITES. 37
in all cases of this sort, deems the Note to admit a pre-
sent debt to be due to the payee, and payable absolutely
and at all events, whenever or by whomsoever the Note
is presented for payment, according to its purport. 1
Nay, where a Note is payable on demand, no other de-
mand need be made, except by bringing a suit thereon. 2
So, where a Note does not specify any day or time of
payment, it is by law deemed payable on demand, and
therefore is construed as if it contained the words " pay-
able on demand " on its face. 3
§ 30. Promissory Notes are not only valid when pay-
able at sight, or at a fixed period after sight, or on
request, or on demand ; but they are also valid when
the payment is to be made at any other fixed period
either established by law or ascertained by usage, even
when it may be affected by some variations in its appli-
cation to time. Thus, a Note payable at Christmas, or
New Year's Day, or upon any other holyday will be
1 Chitty on Bills, ch. 5, p. 156, (Sth edit.) ; Clayton v. Gosling, 5 Barn.
& Cressw. 360. In this case, which was a note for £200, payable "on
having twelve months' notice," for value received, the Court held it a
good Promissory Note, and provable in bankruptcy against the maker,
although he became bankrupt before any notice was given to him by the
payee. Upon that occasion, Lord Tenterden said : — " We have decided on
more than one occasion, that the expression ' value received ' in a Note
imports, ' received from the payee.' The Note in question may, therefore
be read thus : — ' We acknowledge to owe the payee =£200, and promise
to pay him that sum with interest, twelve months after notice.' If so,
there is not any contingency as to the debt, for that is admitted to be due.
Nor is the time of payment contingent, in the strict sense of the expres-
sion : for that means a time which may or may not arrive ; this Note was
made payable at a time which we must suppose would arrive."
2 Bayley on Bills, ch. 9, p. 402, (5th edit.) ; Chitty on Bills, Pt. 2,
ch. 2, p. 590, (8th edit.) ; Id. ch. 4, p. 608, 609 ; Rumball v. Ball, 10
Mod. R. 38.
3 Thomson on Bills, ch. 1, § 2, p. 32; Bayley on Bills, ch. 3, § 14,
p. 109, (5th edit.) ; Green v. Drebilbis, 1 Greene, Iowa, R. 55.
PROM. NOTES. 4
38 PROMISSORY NOTES. [CH. I.
valid, because the period is fixed by law or usage. So,
a Note payable at one usance, or at two usances, or at
a half usance, which are periods fixed in different coun-
tries by usage, would be equally valid. 1
§ 31. The French Law positively requires, that every
Bill of Exchange, and every Promissory Note, shall ex-
press the time when it is to be paid, otherwise it is held
not to be valid as a Bill or Note, but only as a simple
contract. 2 But in other respects it does not seem to dif-
fer from our law, as to the mode of expressing the time
of payment ; for it may be at sight or at a certain num-
ber of days after sight, or after the date of the Bill, or at
the expiration of a certain number of weeks or months,
or on a certain day of a month, or at a fixed feast, fair,
or holyday civil or religious; or at one or more usan-
ces. 3 Heineccius also takes notice of the like doctrine
as generally prevailing on the subject of the time of pay-
ment of Bills. Gambia platearum stmt, vel a Vista, quando
solutio injungitur aliquot diebus post visum cambium, vel a
Dato, quando acceptans solvere jubetur intra cerium tempus
a datis litteris cambialibus ; vel denique a TJso, quando tem-
pore consueto solvere tenetur acceptans? Usance, he after-
i Story on Bills, § 50, 144, 332; Bayley on Bills, ch. 7, $ 1, p. 250,
251, (5th edit.) ; Chitty on Bills, ch. 9, p. 404, (8th edit.) ; Pothier, De
Change, n. 15, 16, 32; Com. Dig. Merchant, F. 5; Savary, Le Parfait
jSTegociant, Tom. 1, Pt. 3, ch. 4, p. 816, 817; Nouguier, Des Lettres De
Change, Tom. 1, Liv. 3, ch. 1, § 5, p. 87-91.
2 Code de Coram, art. 110; Pardessus, Droit Comm. Tom. 2, art.
336; Jousse, Sur L'Ord. 1673, art. 1, p. 67, 68; Pothier, De Change,
n. 12-16, 32; Delvincourt, Droit Comm. Tom. 1, Liv. 1, tit. 7, p. 76,
77, (2d edit.)
3 Pardessus, Droit Comm. Tom. 2, art. 336; Id. art. 183; Code de
Comm. art. 129-131 ; Pothier, De Change, n. 15, 16, 32; Jousse, Sur
L'Ord. 1673, art. 1, p. 67-69.
i Heinecc. de Camb. cap. 2, ^> 13 ; Id. cap. 4, § 6.
CH. I.] NATURE AND REQUISITES. 39
wards remarks, differs in different places in Germany, the
usance being at Leipsic, Brandenburg, Frankfort, and
Dantzic, fourteen days, and in some other places, fifteen
days. 1 But, in whatever mode or way the time of pay-
ment is to be ascertained, whether it be payable at or
after sight or date, or at a feast, or usance, or otherwise,
Heineccius holds it of primary importance, that every
Bill should clearly express the time of payment. In
ipsis litteris cambialihis primo omnium exprimendus est dies
solutionis?
§ 32. Upon the same ground, Bills of Exchange, pay-
able at fairs, commonly called Bittcz Nundinales, were
formerly held good, (and the like rule will apply to Pro-
missory Notes payable at fairs,) because, although these
fairs were not always holclen at a certain time ; yet, it
was certain that they would be held. 3 The same rule
exists in France. Thus, for example, there are at Lyons
four fairs held, each of a month, commonly called Les
Paiemens de Lyon, and Bills of Exchange payable at
such fairs never make mention of any other time than
the time of the fair, without naming any precise day ;
yet, they are held to be good Bills of Exchange, and
are payable after the first and before the seventh day of
the fair. 4 Bills of Exchange of a similar character, and
payable at fairs, prevail in Germany and other parts of
i Ibid.
2 Ibid. cap. 4. $ 6.
s Colehan v. Cooke, Willes, R. 393, 398, 399 ; Chitty on Bills, ch. 5,
p. 156, (8th edit.)
4 Pothier, De Change, n. 16 ; Dupuy de la Serra, L'Art de Change,
p. 29, n. 33, (edit. 1789) ; Jousse, Comm. Sur L'Ord. 1673, tit. 5, p. 69,
(edit. 1802) ; Pardessus, Droit Comm. Tom. 2, § 183, p. 65 ; Code de
Comm. art. 129, 133 ; Nouguier, De Change, Tom. 1, fy 5, n. 5, 6, p. 90 ;
Scaccia, De Comm. § 2, Gloss. 4, p. 494.
40 PROMISSORY NOTES. [CH. I.
»
the continent of Europe, and are called by Heineccius,
Gambia Feriarwn} He adds that in Germany they are
to be presented within a certain time., otherwise they
are no longer admitted ; and at Leipsic they are pre-
sentable at the vernal and autumnal fairs, and are then
payable on the Thursday of the last week of the fair,
without any allowance of days of grace. 2
§ 33. In the next place, it is essential to the validity
of a Promissory Note, that it should contain no contin-
gency or uncertainty as to the person, by whom it is
payable or to whom it is payable. 3 This is, indeed, but
a mere application of a general rule, which governs in
respect to other contracts. 4 In the first place, the name
of the particular person to whom it is payable, should
be given ; and it should not be in the alternative, as
payable to A. B. or to C. D. Therefore, a Note whereby
the maker should promise to pay "to A. B, or to C. D.
or his or their order," is not a valid Promissory Note ;
for it is not payable to A. B. and C. D. but to either of
them, and that only on the contingency of its not hav-
ing been paid to the other. 5 [It is the same, also, with
a note payable to "the heirs, administrators, or assigns
of A. deceased." 6 ]
1 Heinecc. de Camb. cap. 2, § 12, 13.
2 Heinecc. de Camb. cap. 2, § 15. See also, Nouguier, De Change,
Tom. 2, p. 556.
3 Chitty on Bills, ch. 5, p. 159, (8th edit.) ; Id. 160 ; Td. 177 ; Bayley
on Bills, ch. 1, § 10, p. 34, (5th edit.) ; Story on Bills, § 54 ; Per Chief
Baron Eyre in Gibson v. Minet, 1 H. Black. 608.
4 Ibid. ; Champion v. Plummer, 4 Bos. & Pull. 252 ; Cooper v. Smith,
15 East, R. 103.
5 Bayley on Bills, ch. 1, § 10, p. 34, 35, (5th edit.) ; Chitty on Bills,
ch. 5, p. 177, (8th edit.); Id. ch. 12, p. 560, 561; Blanckenhagen v.
Blundell, 2 Barn. & Aid. 417.
6 Bennington v. Dinsmore, 2 Gill, R. 348.
CH. I.] NATURE AND REQUISITES. 41
§ 34. In the next place, as to the person or persons,
by whom the Promissory Note is payable. It seems
indispensable that the maker's name should be signed
to a Promissory Note, in order at once to ascertain the
identity of the person who signs it, and also to secure
public confidence in its negotiability and circulation. 1
It should also state in unambiguous terms, who is the
maker or person liable to pay it ; and, if it be in the
alternative, and is signed, that it is to be paid "by A.
B. or else C. D." it is void as a Promissory Note. 2 But,
provided the name of the maker who is to pay it, be
clearly seen as such, on the face of the instrument, it
does not seem to be of any importance, either in our
law or in the foreign law, whether it is found at the
bottom or at the top, or on the margin thereof. 3 It may
also be written in ink or in pencil. 4 The signature
may be by the maker himself, or by any one authorized
by him, and signing for him and in his name. 5 Whether
a signature by the initials of the maker's name will be
a sufficient subscription, does not seem to have been di-
rectly decided by our law ; 6 but its sufficiency is com-
1 Bayley on Bills, ch. 1, § II, p. 37, (5th edit.)
2 Ferris v. Bond, 4 Barn. & Aid. 679; Chitty on Bills, ch. 5, p. 160,
177, (8th edit.) ; Bayley on Bills, ch. 1, §6, p. 17, (5th edit) ; Id. § 11,
p. 39.
3 Bayley on Bills, ch. 1, § 11, p. 37, 38, (5th edit.) ; Chitty on Bills,
ch. 5, p. 185, 186, (8th edit.) ; Story on Bills, § 53 ; Heinecc. de Camb.
cap. 4, § 17 ; Pardessus, Droit Comm. Tom. 2, art. 330 ; 3 Kent, Comm.
Lect. 44, p. 78, (5th edit.); Taylor v. Dobbins, 1 Str. 399; Elliot v.
Cooper, 2 Ld. Raym. 1376.
4 Chitty on Bills, ch. 5, p. 146, 185, (8th edit.) ; Story on Bills, § 53;
Thomson on Bills, p. 8, (2d edit.) ; Geary v. Physic, 5 Barn. & Cressw.
234.
5 Bayley on Bills, ch. 1, § 11, p. 37, 38, (5th edit.) ; Chitty on Bills,
ch. 5, p. 185, 186, (8th edit.) ; Story on Bills, § 53.
6 But see Merchants' Bank v. Spicer, 6 Wend. R. 443.
4*
42 PROMISSORY NOTES. [CH. I.
pletely established in the Law of Scotland. 1 The sub-
scription, also, by the maker by his mark, if he cannot
write will be good, if it is established by proper attest-
ation or proof. 2
§ 35. In the next place, it is equally essential that
the person to whom the Note is payable, should be
clearly expressed, and made known upon the face of the
Note ; for parol evidence is not admissible to show to
whom it is payable ; and in instruments designed for
circulation, it is of the highest importance to know to
whom its obligations apply, and from whom a title can
be securely derived. The same rule pervades the whole
foreign law. In the French Code of Commerce, it is
enumerated as one of the essential requisites of a Pro-
missory Note, that it should contain the name of the
payee, to whose order it is payable. 3 And this is but
an affirmance of the antecedent law. 4 Heineccius lays
down the doctrine in strong terms : Nee prcetermittendwm
Exactoris prcenomen et nomen ; vel ideo quippe necessarium,
quod nemo ex litteris cigere potest, cv/jus in illis nulla fit men-
tio. 5 A similar rule prevails as to the name of the
maker of the Note. 6 Tlemeccius, speaking of the im-
portance of the signature of the drawer to a bill, and
that even a seal will not supply the defect, (and the
same ground applies to the signature of the maker of a
Promissory Note,) quotes with approbation the opinion
3 Thomson on Bills, ch. 1, § 2, p. 46, (2d edit.)
2 Thomson on Bills, ch. 1, § 2, p. 46, 48-51, (2d edit.) ; Chitty on
Bills, Pt. 2, ch. 5, p. 621, (8th edit.)
3 Code de Comm. art. 188.
4 Pothier De Change, n. 30, 31 ; Pardessus, Droit Coram. Tom. 2, art.
338 ; Jmisse, Sur L'Ord. 1673, tit. 5, art. 1, p. 67.
5 He necc. de Camb. cap. 4, § 11 ; Story on Bills, § 54.
6 Pothier, De Change, n. 30 ; Heinecc. de Camb. cap. 4, § 17.
CH. I.] NATURE AND REQUISITES. 4
D
of SprengeruSj and says : Et id quidem omnino verissi-
mumest, (1) qida periculosa est coniraria sententia, ob falsa,
quce ita facile possent committi, (2) quia ita non facile fieri
posset cambialium litterarum recognilio. Idem dicendiim
videtur de casu, si loco nominis subscripti cruris signum
subjiciatur. 1
§ 36. But here, again, the general rule of our law, as
to the person to whom a Note is payable, must be under-
stood with proper limitations and qualifications. It is not
necessary that the name of the payee should expressly
be stated on the face of the Note ; but it will be suffi-
cient, if, from the language used, the person can be cer-
tainly ascertained. 2 Thus, for example, a Note payable
to the oi der of A. is a valid Promissory Note, for, in con-
templation of law, it is payable to A. or his order. 3 So, a
Note payable to A. or bearer, or payable to bearer, is a
valid Promissory Note ; for, in contemplation of law, it
is solely payable to the person, who is, or may become,
the bearer ; and Id certum est, quod cerium reddi potest*
So, a Note thus expressed: — "Received of B. £50
which I promise to pay on demand," — - is a good Pro-
missory Note ; for the promise will be interpreted to be
a promise to pay B. 5 Pothier gives a similar interpre-
1 Heinecc. de Camb cap. 4, fy 18.
2 Chitty on Bills, ch. 5, p. 155. 160, (8th edit.) ; Bayley on Bills, ch. 1,
§ 10, p. 32-35, (5th edit.) ; Story on Bills, § 54 ; Rex v. Randall, Russ.
& Ryan, Cr. Cas. 195.
3 Chitty on Bills, ch. 11, p. 582, (8ih edit.) ; Bayley on Bills, ch. 9,
p. 388. 389, (5th edit ) ; Frederick v. Cotton, 2 Show. R. 8; Fisher v.
Pomfreu, Carth. R. 403 ; 12 Mod. R. 125; Anon. Comb. R. 401 ; Smith
v. M'Clure, 5 East, R. 476.
4 Baylev on Bills, ch. 1, § 10, p. 30, 31, (5th edit.) ; Chitty on Bills,
ch. 5, p 178, (8th edit ) ; ch. 1 1, p. 5*2 : Grant v. Vaughan, 3 Burr. R.
1516; Minet, v. Gibson. 3 T. R. 481 ; S C. 1 H. Black. R. 569.
5 Green v. Boaz, 4 Barn. & Cressw, 235.
>
44 PROMISSORY NOTES. [CH. I.
tation to the like language ; 1 but Pardessus considers,
that under the present commercial code of France, the
interpretation would not hold good, but the Note would
be fatally defective. 2 Upon the other point, where a
note is made payable to the order of A. the French Law
partly agrees, and partly differs from our own. A Note
payable to the order of A. is valid and negotiable, as a
Promissory Note, as soon as it is made payable to any
person in particular, and he may maintain a suit upon
it, as holder in the same manner, as if it were originally
made payable to him. 3 But it is not deemed, as in our
law, payable to A. but only to his order. And Hei-
neccius puts precisely the same interpretation upon the
words, and holds the same doctrine.
[§ 36 a. We have already seen that a note payable to
the order of the maker, and by him indorsed and put in
circulation, is treated as a note to the bearer. 4 This
principle has received a new illustration in a recent case
in New Hampshire. It was here decided that though a
Note signed by several persons, and payable to one of
their number, cannot be enforced at law in the name of
the payee, as a joint promise against all the makers, yet,
where such Note is indorsed by the individual payee,
who was one of the makers, it immediately becomes
operative as a valid contract, from the date of the trans-
fer, and may be enforced by a joint action against all
the makers, in the name of the indorsee. 5 ]
1 Pothier, De Change, n. 31 ; Story on Bills, § 54.
2 Pardessus, Droit Coram. Tom. 2, art. 338.
3 Story on Bills, § 56; Locre Esprit dn Code de Comm. Tom. 1, Liv.
3, tit. 8, p. 242 ; Pardessus, Droit Comm. Tom. 2, art. 339 ; Heinecc. de
Camb, cap. 2, § 8.
4 See Ante, § 16.
5 Heywood v. Wingate, 44 N. Hamph. 73.
CH. I.] NATURE AND REQUISITES. 45
§ 37. A Note, issued with a blank for the payee's
name, may he filled by any bond fide holder with his
own name as payee, and then it will be treated as a
good Promissory Note to him from its date. 1 Indeed,
the law proceeds much farther ; for, if a blank paper,
intended to be a Promissory Note, is signed by the
maker, [or if a person indorses his name upon it, 2 ] it
may afterwards be filled up by any authorized person,
according to the intent for which it is signed, [or in-
dorsed,] and, in the possession of a bond fide holder, it
will be held valid. 3
[§ 37 a. And where a blank space has been left in
a note, which renders it imperfect, the holder may, it
seems, in some special cases fill the blank. 4 But, if a
Note is perfect when delivered, no alteration can be made
therein but by consent of the parties ; nor will the law
imply an authority to the holder to make an addition
thereto which will render it negotiable. Accordingly,
the insertion of the words " or his order " in a note,
after the execution and delivery thereof to the payee,
without the maker's knowledge and consent, although
in a blank place, has been held to be a material altera-
1 Bayley on Bills, ch. 1, § 10, p. 36, 37, (5th edit.) ; Chitty on Bills,
ch. 5, p. 160, 177, 178, (8th edit.) ; Ciuchely v. Clarance, 2 Maule &
Selw. 90 ; Cruchley v. Mann, 5 Taunt. R. 529 ; Atwood v. Griffin,
1 Ryan & Mood. 425 ; Story on Bills, § 54. See Rex v. Randall, 1 Russ.
& Ryan, Cr. Cas. 193.
2 Ferguson v. Children, 9 Humphrey, Tenn. R. 382.
3 Bayley on Bills, ch. 1, § 11, p. 39, (5th edit.) ; Chitty on Bills, ch. 2,
p. 33, (8th edit.) ; Id. ch. 5, p. 186, 215; Story on Bills, § 53 ; 3 Kent,
Comm. Lect. 44, p. 77, (5th edit.) ; Johnson v. Blasdale, 1 Smedes &
Marshall, R. 17; Hemphill v. Bank of Alabama, 6 Ibid. 44 ; Wilson v.
Henderson, 9 Ibid. 375.
4 Cruchley v. Clarance, 2 Maule & S. 9 ; Contelly v. Mann, 5 Taunt.
R. 529 ; Atwood v. Griffin, 2 Carring. & Payne, R. 368 ; Boyd v. Broth-
erson, 10 Wend. R. 93; Mitchell v. Culver, 7 Cowen, R. 336.
46 PROMISSORY NOTES. [CH. I.
tion, rendering such Note invalid in the hands of an
innocent holder. 1 ]
§ 38. The law of France upon this subject, is some-
what different. Originally, Bills of Exchange drawn
with a blank, for the name of the payee, might be rilled
up (as in our law,) in the name of any bond fide holder,
and thereby the other parties to the Bill would be bound
to him in the same manner, as if his name had been ori-
ginally inserted therein. 2 But this having been found
to be a cover for fraud and usury, the practice was after-
wards disallowed. 3 Soon afterwards, Bills, payable to
the bearer, came into use ; but, being found productive
of the like ill consequences, they also were declared il-
legal. 4 Their validity seems afterwards to have been
reestablished ; 5 but, according to Pardessus, by the pre-
sent law of France, a Bill, payable to the bearer is not
valid. 6 If a Bill of Exchange contains any fiction or
falsity in the names, or quality, or domicil, or place,
where it is drawn, or where it is payable, it loses its
distinctive character as a Bill, and becomes only a sim-
ple promise. 7 Upon a somewhat similar policy, Pro-
missory Notes, with a blank for the name of the payee,
were formerly held valid, and were in use in France ;
i Bruce v. Westcott, 3 Barbour, Sup. Ct. R. 374 ; Clute v. Small, 17
Wend. 242 ; Kershaw v. Cox, 3 Esp. R. 246 ; Bathe v. Taylor, 15 East,
R. 412; Erie v. East India Co. 2*Burr. 1216.
2 Pothier, De Change, n. 223.
3 Ibid ; Savary, Parfait Negotiant, Tom. 1, Pt. 1, Liv. 3, ch. 7, p. 201.
4 Ibid. ; Dupuy de la Serra, ch. 19, p. 196, 197.
5 Ibid.
6 Pardessus, Droit Comm. Tom. 2, art. 338. Post, § 173 ; Story on
Bills, § 58.
7 Code de Comm. art. 112. See also, Chitty on Bills, ch. 5, p. 178,
(8th edit.)
CH. I.] NATURE AND REQUISITES. 47
but they are now prohibited, and have fallen into dis-
use. 1
§ 39. It has sometimes happened that Notes import
to be payable to a fictitious person, or to a person not
in esse, or to his order, and are issued with an indorse-
ment in blank, purporting to be made by such person
thereon. Under such circumstances, as against the real
maker of the Note, who assumes the character of the
indorser in the transaction, the Note will, in the hands
of a bond fide holder, be held payable to bearer, and
have the same legal operation, as if it was originally
made payable to bearer. 2 [So, also, if put in circulation
by the maker, with the indorsement of the payee forged
upon it. 3 ] We have just seen that in respect to Bills of
Exchange, a different rule prevails in France under the
present Code of Commerce ; 4 and the like rule is appli-
cable to Promissory Notes. But, if a Note is made
payable to a fictitious person or order, it seems, that as
between the original parties who put the instrument
into circulation with a knowledge of the fiction, it might
be held void as an inoperative instrument. 5
§ 40. These are the essential qualities required in Pro-
missory Notes, by the Law of England and America.
1 Savary, Parfait Negociant, Tom. 1, Pt. 1, Liv. 3, ch. 7, p. 199.
2 Bayley on Bills, ch. 1, § 10, p. 31, 32, (5th edit.) and note ; Chitty on
Bills, ch. 5, p. 179, 180, (5th edit.) ; Stevens v. Strong, 2 Sandford, Sup.
Ct. R. 138 ; Stone v. Freeland, cited 1 H. Black. R. 316, note ; Minet v.
Gibson, 3 T. R. 481 ; S. C. 1 H. Black. R. 569; Collis v. Eraett, 1 H.
Black. R. 313 ; Cooper t>. Meyer, 10 Barn. & Cressw. R. 469 ; Bennett
v. Farnell, 1 Camp. R. 130, contra. But see Id. Addenda, p. 180, b. § 9 ;
Stevens v. Strong, 2 Sandford, Superior Ct. N. Y. R. 138.
3 Coggill v. American Exchange Bank, 1 Comstock, R. 113.
4 Ante, § 37 ; Code de Coram, art. 112.
5 See Bennett v. Farnell, 1 Camp. R. 130 ; Hunter v. Jeffery, Peake,
Addit. Cas. 146. See Chenot v. Lefevre, 3 Gilman, Illinois R. 637.
48 PROMISSORY NOTES. [CH. I.
There are others, again, which are indispensable under
particular circumstances, and others, again, which are
usual and common, although not indispensable, but
which yet will require some notice in the present con-
nection. In certain cases, by statute, no Note is valid
as a Promissory Note, unless it is made in strict com-
pliance with the statute regulations. Thus, for example
in England, Promissory Notes are, in general, required
by statute to be on stamped paper. 1 So, certain de-
scriptions of Promissory Notes are required to be at-
tested, otherwise they, are void. 2 Others, again, for
certain purposes, require the words "value received"
to be inserted therein, in order to give a title to inte-
rest and damages ; 3 and others again formerly required,
under a penalty, the words " value received " to be
inserted on their face, such as Notes given for the pay-
ment of coals, which on their face were required to
purport to be given " for value received in coals." 4
But upon these it is unnecessary to dwell, as they ex-
clusively belong to positive legislation, and vary, as well
in the same country, as in different countries.
§ 41. A far more important, and in a practical sense,
the most distinguishing characteristic of Promissory
Notes, is their negotiability. It is this quality which
gives a ready circulation and currency to them among
the community at large, and enables them to perform in
a vast variety of cases, the functions of money. 5 Never-
1 Bayley on Bills, ch. 3, § 1 - 14, p. 77 - 103, (5th edit.)
2 Bayley on Bills, ch. 1, § 12, p. 40, (5th edit.)
3 Chitty on Bills, ch. 5, p. 183, (8th edit.)
4 Bayley on Bills, ch. 1, § 13, p. 40, (8th edit.) ; Chitty on Bills, ch. 5,
p. 182, (8th edit.)
5 Ante, § 1 - 3.
CH. I.] NATURE AND REQUISITES. 49
theless, this is not by our law an indispensable quality,
although it is so general an attendant that it is difficult
to separate in our minds the notion of a Promissory
Note from that of negotiability. A Note, not negotia-
ble, enjoys by our law, all the privileges of a Note
which is negotiable, so far as the maker and payee are
concerned. 1 It is only when a transfer of such a Note
is accomplished, that the distinction between an assign-
ment at law and an assignment in equity is felt and
understood. 2 Hence, it was formerly thought, that un-
less a Promissory Note was negotiable, it was but the
assignment of a chose in action which was generally
incapable of being transferred at the common law, al-
though held assignable in equity, and therefore was a
mere evidence of a contract. 3 But the validity of such
a Note, as a Promissory Note, is now fully established. 4
Indeed, the rule never did apply to Promissory Notes
or Bills of Exchange, assigned to the King or Govern-
ment by the payee, although not originally payable to
bearer or to order; for these, like all other choses in
action, always were assignable to the King or Govern-
ment upon principles of public policy, so as, upon the
assignment thereof, to be suable in the name of the
King or Government. 5 And Bills of Exchange and
1 Bayley on Bills, ch. 1, § 10, p. 33, (5th edit.) ; Chitty on Bills, ch. 5,
p. 181, 218, (8th edit.) ; Ante, § 1, 2; Story on Bills, § 60.
2 Story on Bills, § 60, 199.
3 Chitty on Bills, ch. 5, p. 181, (8th edit.) ; Dawkes v. Ld. De Lorane,
3 Wilson, R. 207, 213 ; Story on Bills, § 60.
4 Ibid. ; Smith v. Kendall, 6 Term R. 124; Ante, § 1-3 ; Story on
Bills, § 60 ; The King v. Box, 6 Taunt. R. 328 ; Bishop of Derry v.
Chambers, Hudson & Brooke, R. 433 ; U. States v. Buford, 3 Peters, R.
12, 30. See Post, § 128.
5 Story on Bills, \ 60, 199; U. States v. White, 2 Hill, N. Y. R. 59.
PROM. NOTES. 5
50 PROMISSORY NOTES. [CH. I.
Promissory Notes, originally made payable to the King
or Government, are, upon the like policy held assignable
to third persons, without any words of negotiability in
the instrument. 1
§ 42. The French Law, as has been already sug-
gested, 2 in respect to non-negotiable Bills and Notes,
differs essentially from ours ; for the privileges annexed
by that law to Promissory Notes are limited to those
which are negotiable, viz. : those which are payable to
the payee or his order, or to his order generally, or that
some other equivalent words should be used. 3 The law
1 Ibid. ; Lambert v. Taylor, 4 Barn. & Cressw. 138 ; Chitty on Bills,
ch. 6, p. 219, 252, (8th edit.) ; U. States v. Buford, 3 Peters, R. 30 ; U.
States v. White, 2 Hill, N. Y. R. 59.
2 Ante, § 2.
3 Story on Bills, § 62 ; Pardessus, Droit Comm. Tom. 2, art. 339 ;
Pothier, De Change, n. 216-219; Jousse, Snr L*Ord. 1673 ; tit. 5, art.
31, p. 126 ; Dupuy de la Serra, De Change, ch. 19, § 1, 2, p. 191, 192 ;
Nouguier, De Change, Tom. 1, Liv. 4, § 1, n. 7, p. 498 ; Chitty on Bills,
ch. 5, p. 181, (8th edit.) ; Id. ch. 6, p. 218, 219. Mr. Nouguier thinks,
that he has ascertained the precise time when the words " or order" were
added in France, in Bills of Exchange. He says : — " Estienne Cleirac,
lequel, comme on sait, ecrivait en 1569, est le premier auteur qui parle de
Pordre, comme moyen de transferer la propriete d'une lettre de change.
Dans son ch. 5, n. 4, page 62, il donne un modele de lettre contenant
l'ordre ; puis, au meme chapitre, n. 12, page 66, il explique la valeur de
cette expression. Plus tard, Savary, Parere 82, t. 2, page 602, pretend
que l'usage de cette clause a pris naissance en 1620 ; landis que Mareschal,
dans son ouvrage sur les changes et rechanges, publie en 1625, ne dit rien
qui confirme cette opinion. Son silence ne la detruit pas, car son traite
succinct est principalement destine a rechercher la nature des diverses es-
peces de changes, et la constitution faite par Cleirac trentequatre ans apres,
semble lui donner une certaine force. J'ai meme retrouve, dans V Instruc-
tion sur les Lettres de Change, ch. 1, p. 4,un renseignement precieux,qui
determinerait l'epoque precise de l'invention de l'ordre. Suivant l'auteur
de cette instruction, avant le ministere du Cardinal de Richelieu on ne se
servait pas du mot ordre; mais l'embarras des procurations qu'il fallait
passer, donna lieu a ce terme, pour faciliter le commerce des Lettres de
Change, dont ce ministre faisait un tres-grand usage. Or, on sait que le
CH. I.] NATURE AND REQUISITES. 51
of the Neapolitan dominions is to the same effect. 1 It
is highly probable that the same rule prevails generally
upon the continent of Europe, although the elementary
writers do not seem directly to discuss the point. 2 In
Scotland, a Bill of Exchange or Promissory Note, is
held to be indorsable and negotiable, although it bears
no words of assignability on its face. 3 In this respect,
it differs both from our law and the foreign continental
law.
ministere du cardinal a dure de 1624 a 1642, epoque de sa mort. Ce serait
done vers cette epoque et pendant cet espace de dix-huit ans, que Tordre,
invente, en 1620, aurait pris son developpement. Quoiqu'il en soit, le
commerce accueillit cette innovation avec une faveur marquee : il comprit
a merveille combien ses ressources s'augmentaient par la facilite de regler
ses operations immediatement, sans frais, et d'assurer un rapide paiement.
Aussi le transport des lettres par un simple ordre devint d'un usage presque
general. Cependant, vers la fin du dix-septieme siecle, et apres, l'ordon-
nance de 1673, quelques places de commerce, tenant par tradition a leurs
anciennes formalites, ne purent se resoudre a. autoriser les transports par
endossement, et Dupuy de la Serra, (ch. 13, n. 12, p. 467 et 468 ; Id.
ch. 13, § 12, p. 92, edit. 1789,) cite quelques pays ou il y avait defense
d'agir ainsi : ' Dans quelques villes particulieres, dit-il, comme Venise,
Florence, Novi, Bolzan, par des reglemens qui ont force de lois, il est de-
fendu de payer les Lettres de Change en vertu des ordres : mais il faut
qu'elles soient payables & droiture a. ceux qui les doivent exiger, ou bien
ceux a qui elles sont payables envoient une procuration concue en certaine
forme precise, sans quoi on ne saurait en exiger le paiement, ni faire un
protet valable, parce qu'il ne serait pas fait par la faute du tireur ni de
l'acceptant.' " Nouguier, Des Lettres de Change, Tom. 1, p. 273, 274.
Doubtless, they were introduced into Promissory Notes about the same
period.
1 Codice per lo Eegno delle due Sicilie, Del Comm. tit. 7, cap. 1, § 109 ;
Id. cap. 2, § 187.
2 See Heinnecc. de Camb. cap. 2, § 1-3 ; Baldasseroni (P.) Del Cam-
bio, Pt. 1, art. 2, and Comm. Code of Russia, 1833 ; 1 Louis. Law Jour-
nal, 1842, p. 64; Da Silva Lisboa Principes de Diritto Mercantil, Tom.
2, ch. 6, p. 17.
3 1 Bell, Comm. B. 3, ch. 2, § 4, p. 401, (5th edit.) ; Story on Bills,
§62.
52 PROMISSORY NOTES. [CH. I.
§ 43. As to the mode of negotiation of Promissory
Notes, it depends in our law upon the form in which
they are originally made. If they are payable to bearer
generally, or to A. or bearer, the title thereto passes by
mere delivery from hand to hand, and, of course, pos-
session of the same is prima facie proof of title. 1 If
they are payable to order, or to A. or order, then the
title will pass by the indorsement of the payee to the
person named in the indorsement. If they are indorsed
in blank, then the title passes by mere delivery to the
holder in the same manner, as if the indorsement were
to the bearer. 2 ,
§ 44. In order to make a Promissory Note negotia-
ble, it is not essential, that it should in terms be payable
to bearer or to order. Any other equivalent expres-
sions, clearly demonstrating the intention to make it
negotiable, will be of equal force and validity. 3 Thus,
for example, a Promissory Note payable to A. or assigns
is negotiable. The French Law is equally liberal in its
exposition of this subject; for, although the Code of
Commerce requires Promissory Notes to be payable to
a party or his order ; 4 yet, it is held a sufficient compli-
ance with the terms of the article, if other equivalent
words are used. Thus, for example, if the Note is made
1 Story on Bills, § 60; Chitty on Bills, ch. 5, 180; Id. ch. 6, p. 252,
(8th edit.); Bayley on Bills, ch. 1, § 10, p. 31, (5th edit.)
2 Story on Bills, § 60 ; Chitty on Bills, ch. 6, p. 252, 253, (8th edit.) ;
Bayley on Bills, ch. 1, § 10, p. 31, (5th edit.) Id. ch. 5, § 1, p. 121, 123,
124.
3 Chitty.on Bills, ch. 5, p. 180, (8th edit.) ;-Id. ch. 6, p. 219; Bayley
on Bills, ch. 5, § 1, p. 120, (5th edit.) ; Story on Bills, § 60 ; 3 Kent,
Comm. Lect. 44, p. 77, (5th edit.) ; Com. Dig. Merchant, F. 5.
4 Code de Comm. art. 188.
CH. I.] NATURE AND REQUISITES. 53
payable to A. or at his disposal, {pu a sa disposition,) that
will be sufficient to establish its negotiability. 1 So, if it
be payable to A. or to the lawful bearer thereof, it will
be deemed equivalent to the words " or to his order."
But, if the words are payable to A. or in his favor, (ou
en safavear,) they will not be deemed to intend to make
the Note negotiable. 3
§ 45. In the next place, as to the date. Promissory
Notes ordinarily state the date or time of making the
same ; but it is not, in general, essential that they should
be elated, unless positively required by some statute. 4
Great practical difficulties must, however, arise in many
cases, from the omission of the date, and therefore it
rarely occurs, except from inadvertence or mistake.
Thus, if a Note be payable in a certain number of days
after the date, it is plain that the omission must create
great embarrassment and difficulty in ascertaining when
the Note was actually made and delivered to the payee.
In such a case, the time will be computed from the day,
when it was issued or made, 5 or, if that cannot be ex-
actly ascertained, from the day when its existence can
first be established. 6 Where a Note is payable at sight,
1 Pardessus Droit Comm. Tom. 2, art. 339.
2 Ibid. 3 ibid.
4 Bayley on Bills, ch. 6, § 7, p. 25, (5th edit.) ; Chitty on Bills, ch. 5,
p. 169, (8th edit.) ; Pasmore v. North, 13 East, 517, 521 ; M. & F. Bank
v. Schuyler, 7 Cowen, R. 337.
5 De la Courtier v. Bellamy, 2 Shower, R. 422 ; Hague v . French,
3 Bos. & Pull. 173; Giles v. Bourne, 6 Maule & Selw. 73 ; Chitty on
Bills, ch. 5, p. 169, (8th edit.) ; Id. Pt. 2, ch. 2, p. 581 ; Bayley on Bills,
ch. 7, § 1, p. 248; Id. ch. 9, p. 379, (5th edit.) ; Woodford v. Dorwin,
3 Verm. R. 82; Chamberlain v. Hopps, 8 Verm. R. 94.
6 See Armitt v. Breame, 2 Ld. Raym. 1076, 1082 , Bac. Abridg. Leases
and Terms for Years, L. 1; Com. Dig. Fait. B. 3; Styles v. Wardle,
5*
54 PROMISSORY NOTES. [CH. I.
or at a certain number of days after sight, the same
difficulty is not felt; for the time begins to run, not
from the date, but from the time of the presentment
thereof, and therefore is easily ascertainable. 1
§ 46. By the old French Law, the date does not seem
to have been positively required to be placed on the
Note ; 2 but the modern Code of Commerce expressly
requires the note to be dated. 3 And by the date, we
are to understand the clay, the month, and the year. 4
A compliance with this requisite seems indispensable,
under the modern Code, to give it the character of a
Promissory Note, although it will not otherwise deprive
it of being, as between the original parties, considered
as a valid simple contract or promise. 5 The law of
Naples is in precise coincidence writh that of France. 6
§ 47. Heineccius also holds that the date is indispen-
4 Barn. & Cressw. 903, 911; Chitty on Bills, Pt. 2, ch. 2, p. 531, (8th
edit.) ; Bayley on Bills, ch. 7, ^ 1, p. 248, (5th edit.) ; Id. ch. 9, p. 379 ;
Beawes, Lex Mercat. § 190, p. 439; Thomson on Bills, p. 61, 62, (2d
edit. 1 )
1 Chitty on Bills, ch. 9, p. 406, (8th edit.) ; Thomson on Bills, p. 61,
62, (2d edit.) ; Bayley on Bills, ch. 7, § 1, p. 244, 245, 248 ; Pothier, De
Change, n. 13 ; Story on Bills, § 37.
2 Pothier says, (speaking of the old Law, before the modern Code of
Commerce,) the want of a date, or an error in the date of the Bill, cannot
be objected on the part of the drawer or acceptor, any more than the omis-
sion of the place where it was drawn. Pothier, De Change, n. 36.
3 Code de Comm. art. 110, 188 ; Pardessus, Droit Comm. Tom. 1, art.
331, 333, 457, 458 ; Delvincourt, Inst. Droit Comm. tit. 7, ch. 1, p. 75 ;
Merlin, Repert. Letlre et Billet de Change, § 1, n. 2, p. 161, 162, (edit.
1827) ; Jousse, Sur L'Ord. 1673, tit. 5, p. 58, 67 ; Locre, Esprit de Comm.
Liv. 1, tit. 8, § 1, p. 332, (edit. 1829) ; Pothier, De Change, n. 36.
4 Ibid.
5 Ibid; Pardessus, Droit Comm. Tom. 1, art. 331, 333, 464, 477, 478;
Chitty on Bills, 147, 148, (8th edit. 1833.)
6 Codice per lo Regno delle due Sicilie, Del Comm. tit. 7, cap. 1, § 109 ;
Id. cap. 2, ^ 187.
CH. I.] NATURE AND REQUISITES. 55
sable. His language is, and it certainly has no small
force in a practical view of the subject : Sequitur dici,
mensis, et anni mentio, qu<x necessaria omnino videtur ; (1.)
quia plerceque. leges cambiales tempus exprimi jiibent, .veluti
PrussiccB, Brunsuicenses, et Austriaca ; (2.) quia scepe dies
solutionis a die scriptarum litterarum compuiandus est, ab
eoque currere incipit, e. gr. tier Wochen a dato beliebe der
Herr zu besahlen; (3.) quia de prcescriptione debiti cambi-
alis judicari non 'potest sine die et conside. In aliis scrip-
turis omissum diem et consulem regulariter non vitiare con-
traction, notum est. 1
§ 48. In respect to the elate of Promissory Notes,
two classes of cases may arise, which may involve ques-
tions of a very different nature from those which we
have been considering. They may be, first, ante-dated ;
and secondly, post-dated. In both cases, the Notes will
be valid in point of law, unless some statute exists to
the contrary ; 2 and, where the purposes of justice re-
quire it, the real date may be inquired into, and effect
given to the instrument. 3 Thus, if a Promissory Note
should bear elate before the maker came of age, and
yet, in point of fact, it was actually made and given
after he came of age, that fact might be shown and es-
tablished as a good answer, to a plea of infancy. So,
if a Note were given by a married woman after her
marriage, but it was ante-dated before the marriage,
the husband might successfully defend himself against
the claim, founded upon such antecedent date, by
1 Heinnec. de Jur. Camb. cap. 4, § 4, (edit. 1769.)
2 See Bayley on Bills, ch. 6, § 7, p. 25, (5th edit.) ; Id. ch. 3, § 7,
p. 87-97; Chitty on Bills, ch. 5, p. 169, (8th edit.) See Powell v.
Waters, 8 Cowen, R. 669.
3 Ibid.
56 PROMISSORY NOTES. [CH. I.
setting up the true date. On the other hand, if a Note
should be post-dated, it would still be valid in the
hands of the payee or any subsequent indorsee, although
the maker should die before the day of the date arrived ;
for the instrument would still be deemed to have a legal
effect from the time of its issue, and the date would be
deemed to fix the period from which the time for its
payment might be calculated or held fixed. 1 The like
rule will apply, where, in a Promissory Note a blank is
left for the date, and the maker dies before it is filled
up, and afterwards it is filled up ; for it will be valid,
and furnish no ground of objection, either to the ori-
ginal parties, or to the person who filled it up. 2
§ 49. In the next place, as to the place where a Pro-
missory Note is made or is payable. By our law it is
not essential that any place of making or of payment
should be specified on the face of the Note, unless spe-
cially provided for by statute. 3 It is usual, indeed, in
the date, to include the place where the Note is made ;
and this, in many cases, may be very important, in order
to ascertain the proper rules by which it is to be inter-
preted ; for the interpretation will be, or may be, essen-
tially governed by the law of the State where it is
made.' 1 But, in the absence of any place stated on the
* Pasmorez). North, 13 East, R.517, 521 ; Chitty cm Bills, ch. 5, p. 169,
(8th edit.) ; Bayley on Bills, ch. 6, § 7, p. 25, (5th edit.) ; Id. ch. 5, § 3,
p. 163, 169 ; Brewster v. McCardel, 8 Wend. R. 478.
2 Bayley on Bills, ch. 1, § 7, p. 25, 26, (5th edit.) ; Id. ch. 5, p. 168 ;
Chitty on Bills, ch. 6, p. 240, (8th edit.) ; Usher v. Dauncey, 4 Camp.
R. 97 ; Russell v. Langstafte, Doug. R. 514.
3 Bayley on Bills, ch. 1, § 9, p. 29, 30, (5th edit.) ; Thomson on Bills,
ch. 1, \ 2, p. 69, (2d edit.) ; Chitty on Bills, ch. 5, p. 172-174, (8th
edit.)
4 Story on the Conflict of Laws, § 242 -244, 266, 270,307-318; Story
on Bills, § 129-159.
CH. I.] NATURE AND REQUISITES. 57
face of the Note, resort may be had to parol evidence,
to establish the validity of the Note, as well as to im-
peach it. But very different considerations will apply
to the case of the place of payment ; for, if the Note is
intended to be paid at any particular place, that place
must be stated in the instrument ; and parol evidence is
not admissible to show, that, although no place of pay-
ment is therein stated ; yet the parties agreed that it
should be payable at a particular place. 1 It is not
sufficient to make a Note payable at a particular place,
that there should be a memorandum of the place where
it is payable ; at the foot, or on the margin thereof, but
it should be in the body of the Note itself, and consti-
tute a part thereof. 2
§ 50. By the law of France, Bills of Exchange are
required to have the place, as well as the time of the
date inserted therein. The place of payment, also, is
required to be stated. 3 But it does not appear that the
place of the date is positively required, in cases of Pro-
missory Notes, or even the place of payment; but the
time of payment only. 4
1 Greenleaf on Evid. § 275, (2d edit.) ; Phillips & Amos on Evid. ch. 5,
p. 756; 2 Starkie on Evid. 548, (2d edit. 1833); Chitty on Bills, ch. 5,
p. 172, 173, (8th edit.)
2 Chitty on Bills, ch. 5, p. 174, (8th edit.) ; Bayley on Bills, ch. 1, $> 9,
p. 29, 30, (5th edit.); Williams v. Waring, 10 Barn. & Cressw. 2; Exon
v. Russell, 4 Maule & Selw. 505; Bayley on Bills, ch. 1, § 14, p. 41,
(5th edit.) ; Masters v. Baretts, 8 Manning, Gr. & Scott, R. 433 ; Pierce
v. Whitney, 16 Shepley, R. 188. But see Heywood v. Perrin, 10 Pick.
R. 228.
3 Code de Comm. art. 110 ; Pardessus, Droit Comm. Tom. 2, art. 333,
464 ; Story on Bills, § 49. Heinnec. de Camb. cap. 4, § 2, 3, affirms the
same rule to exist in the general foreign law.
4 Code de Comm. art. 188 ; Pardessus Droit Comm. Tom. 2, art. 498;
58 PROMISSORY NOTES. [CH. I.
§ 51. In the next place, as to the expression of
" value received " being on a Promissory Note. This,
by our law, is clearly not essential, although it is com-
monly inserted, unless, indeed, it is positively required
by some statute provision, in respect to some particular
classes of Notes. 1 Indeed, although not essential, it has
been thought that it may be important, in many cases,
to insert the words " value received " in a Promissory
Note ; since the words, when inserted, import that value
has been received by the maker from the payee, and
hence they raise a positive presumption of a legal con-
sideration sufficient to sustain the promise, liable, it is
true, to be rebutted, but which, until rebutted, will pre-
vail in favor of the payee and any subsequent holder. 2
But perhaps this is an overstrained refinement, since
the law implies, from the nature of the instrument itself,
and the relation of the parties apparent upon it, that it
is for value received by the maker from the payee, and
therefore it can make no difference whether the words
be or be not inserted. 3 So true is this, that an action of
debt will lie upon a Promissory Note, where the words
are omitted by the payee against the maker. 4
Codice delle due Sicilie, Del Comm. tit. 7, cap. 1, § 109 ; Id. cap. 2,
§ 187.
1 Ante, § 39 ; Bayley on Bills, ch. 1, § 13, p. 40, (5th edit.) ; Chitty
on Bills, ch. 5, p. 182, 183, (8th edit.) ; White v. Ledwick, 4 Doug. R.
247 ; Townsend v. Derby, 3 Metcalf, R. 363 ; Hatch v. Trayes, 11 Adolp.
& Ellis, 702 ; Jones v. Jones, 6 Mees. & Wels. 84 ; Thomson on Bills,
86, 87, 91, 93, 100, 101, (2d edit.) ; 3 Kent, Comm. Lect. 44, p. 77, (5th
edit.) ; Bishop of Derry v. Chambers, Hudson & Brookes, Irish R. 433 ;
Leonard v. Walker, Bray ton, Verm. R. 203.
2 Chitty on Bills, ch. 5, p. 182- 184, (8th edit.) Holliday v. Atkinson,
5 Barn. & Cressw. 503 ; Clayton v. Gosling-, 5 Barn. & Cressw. 360.
3 Hatch v. Trayes, 11 Adolp. & Ellis, 702. See Thomson on Bills,
93, 94, (2d edit.)
4 Ibid.
CH. I.] NATURE AND REQUISITES. 59
§ 52. The French. Law in respect to the expression
of value upon the face of the Note is entirely different
from ours. It requires, not only that the value received
should be expressed on the face of the Note, but also,
whether it is received in money or merchandise, in ac-
count, or in any other manner. 1 This rule had its origin
not in the present commercial code of France, but it
constituted a part of the policy of the old law. The
Ordinance of 1673 positively required it in cases of
Bills of Exchange, and the like rule was applied to
Promissory Notes ; 2 so that, without this expression of
value, they lost their distinctive character as Bills of
Exchange and Promissory Notes, and sank into mere
simple contracts. 3
§ 53. The like rule seems to prevail in some other
nations, upon the continent of Europe ; but it is not
probably of universal adoption. 4 Heineccius, in treat-
ing of Bills of Exchange, (and he considers Promissory
Notes, as but a species of Bills,) enumerates the essen-.
tial parts as being, the invocation (votum,) the place of
making, the day, month, and year, and lastly, the sum
to be paid, without any suggestion as to the words
" value received." 5 He afterwards, however, speaks of •
1 Code de Comm. art. 188.
2 Jousse, Sur L'Ord. 1673, tit. 5, art. 1, p. 67, 70 ; Id. art. 4, p. 82 ;
Id. art. 31, p. 126; Pothier, De Change, n. 34, 222; Pardessus, Droit
Comm. Tom. 2, art. 331, 340, 479 ; Story on Bills, § 64 ; Savary, Parfait
N^gociant, Tom. 1, pt. 1, Liv. 3, ch. 4, p. 133 ; Id. ch. 7, p. 200.
3 Ibid. ; Pothier, De Change, n. 34, 222.
4 Codice delle due Sicilie, Del Comm. tit. 7, cap. 1, § 109; Id. cap. 2,
§ 187. The Code of the Two Sicilies seems to be founded upon the
French Code of Commerce.
5 Heinecc de Camb. cap. 4, § 2,
60 PROMISSORY NOTES. [CH. I.
the words being commonly inserted; 1 and adds, that,
whether the omission will render a Bill of Exchange
invalid or not, must depend upon the law of the parti-
cular place where it is made. His language is : Sitne
valuta meniio adeo necessaria, lit ejus omissio cambium
vitiet, ex legibus singulorum locorum cambialibus judicandum
est. Earn omnino exigunt leges cambidles Prussica, Banica,
Gallica, Bnmsuicensis ; contra ea in Bipsiensi, (§3,) legi-
mus : TJnd sollen dieselben ( Wechsel Brief e) es mag der
empfangenen Valuta, trie zivar an ilim selbst bittig ivare,
darrinnen gedacht seyn, oder nicht, einen Weeg, vAe den an-
dem, kraftig mid gilltig seyn. Be eo tamen inter omnes
constat, semel acceptato cambio solutionem exigi posse, si vel
maxime nulla facta fuerit valutce mentior
§ 54. In the next place, as to the attestation of Pro-
missory Notes. This is not required by our law in any
case, except where it is positively required by statute. 8
It may be convenient, in many cases, to have the attest-
ation of a witness to establish the genuineness of the
signature, or the consideration of the Note, or the vali-
dity of the transaction, on account of which it was
given. 4 In cases where a Note is signed by a marksman,
• or with the initials of the maker only, it may be very im-
portant to have the same attested by a witness, in order
to establish the genuineness of the mark or initials, and
the occasion of the execution of the instrument. By
the law of some of the American States, as for example
of Massachusetts, the statute of limitations does not
1 Heinnec. de Camb. cap. 4, § 13.
2 Heinecc. de Camb. cap. 4, ^ 14.
3 Chitty on Bills, ch. 5, p. 188, 189, (8th edit.) ; Bayley on Bills, ch. 1,
§ 12, p. 40, (5th edit.)
4 Revised Statutes of Massachusetts, (1835,) ch. 120, 6 4.
\
*•
CH. I.] NATURE AND REQUISITES. 61
apply to any Promissory Notes signed in the presence
of an attesting witness, where the action thereon is
brought by the payee or by his executor or administra-
tor. There is also occasionally some inconvenience in
having a Promissory Note attested ; because, in such a
case, the signature must be proved by the attesting wit-
ness, and not otherwise, unless the witness be abroad,
or dead, or from some other circumstance, he cannot be
produced at the trial, and his absence can be properly
accounted for. 1 In either of these events, by an ano-
maly in the jurisprudence of the Common Law, as it
certainly must be called the next best evidence, that is,
the proof of the signature of the maker, is not required ;
but the proof may be, nay, in some States must be, by
proof of the handwriting of the attesting witness. 2
§ 55. Promissory Notes are sometimes made under
seal ; and the question may then arise, whether they
retain the distinctive character and privileges of Pro-
missory Notes by our law, or thereby pass into another
distinct class of contracts. It has been held, in some of
the American States, that Notes under seal, although
possessing in all other respects the characteristics of
Promissory Notes, are not entitled to the privileges
thereof, and are not negotiable. 3 Whether any rule of
a similar nature prevails in the foreign law generally
1 Chitty on Bills, ch. 1, p. 188, 189, (8th edit.) ; Bayley on Bills, ch. 1,
§ 12, p. 40, (5th edit.); Greenleaf on Evid. § 569, 572, (2d edit.) ; 1 Star-
kie on Evid. p. 320, 321, 325-329, (2d edit. 1833.)
2 1 Starkie on Evid. p. 328, 329, (2d edit. 1833); Greenleaf on Evid.
§ 575 ; Phillips & Ames on Evid. 661, 662.
3 Clark v. Farmer's Manuf. Comp. 15 Wend. R. 256. See Glyn v.
Baker, 13 East, 509 ; Gorgier v. Melville, 3 Barn. & Cressw. 45 ; War-
ren v. Lynch, 5 John. R. 239 ; Story on Bills, § 61.
PROM. NOTES. 6
62 PROMISSORY NOTES. [CH. I.
may. be doubted. Heineccius manifestly considers the
affixing of a seal as a mere superfluity, and of no effect.
Sigilli, (says he,) plane nuttus usus est in hisce litteris ; ct
hinc si addatur, quod aliqaando fieri videmus in cambiis
propriis (Promissory Notes, 1 ) id merito pro super fluo Jiabe-
tur?
§ 56. No attestation of a witness to Promissory Notes
seems required by the foreign rule, any more than it is
by our law ; at least, no such rule is laid down by any
of the elementary writers, whose works have fallen
under my observation. The very omission to state such
a qualification in works professing to treat the subject
at large, would seem to be decisive upon the question.
Neither Jousse, nor Dupuy de la Serra, nor Savary, nor
Pothier, nor Parclessus, nor Heineccius, have taken no-
tice of it. The Scottish Law has silently adopted the
English rule. 3
§ 57. In respect to the form of Promissory Notes
another consideration seems proper to be taken notice
of. A Promissory Note may be made by a single per-
son, or by two or more persons. When it is made by
two or more persons, it may be joint, or it may be joint
and several. When two or more persons sign a Note
written thus, " We promise to pay," it is a joint Note
only, unless they add the words "jointly and severally"
thereto. 4 When two or more persons sign a Note writ-
ten thus, "I promise to pay," it is treated as a joint and
several Note of them all, and they may be accordingly
1 Heinecc. de Camb. cap. 2, % 1, 2.
2 Heinnec. de Camb. cap. 4, § 18.
3 Thomson on Bills, ch. 1, § 2, p. 43, 45, (2d edit.)
4 Chitty on Bills, ch. 12, p. 562, (8th edit.) ; Bailey on Bills, ch. 2, §5,
p. 50-52, (5th edit.) ; Bangor Bank v. Treat, 6 Greenl. R. 207.
CH. I.] NATURE AND REQUISITES. 63
sued jointly or severally thereon ; 1 [and the agent who
signs for them, as, in the following instance : " For I. C,
R. M., J. P. and T. S." — "R. M." will not be held lia-
ble. 2 ] If a Note be signed by a person in the name
of a firm, whether that name represents in form more
than one person, as " A. & Co." or represents in form
one person only, as " A." ; in both cases it is treated
as the joint Note of the firm, and all the partners may
be jointly sued thereon, whether the words be "We
promise," or "I promise." 3 When a Note is signed
by two persons, written, "We jointly or severally
promise," " or " is construed to mean " and," and it
is deemed a joint and several Note. 4 When a Note is
signed by two persons, written thus, " We promise," and
signed "A. B., principal, C. D., surety," it is still the
joint Note of both ; and if it were written, " I promise,"
and signed in the same manner, it would be the joint
and several Note of both. 5 For, the language designat-
ing the principal and surety does not change the rights
of the payee or subsequent holder, but merely ascer-
tains the relation of the makers to each other; and
operates as notice of that relation to the other parties
thereto.
1 Ibid. ; Clerk v. Blackstock, Holt, N..P. R. 474; Marsh v. Ward,
Peake, R. 130 ; Hall v. -Smith, 1 Barn. & Cressw. 407; Galway v. Mat-
thew, 1 Camp. R. 403 ; Hemenway v. Stone, 7 Mass. R. 57.
2 Ex parte Buckley, 14 Meeson & Welsby, 469 ; In the matter of
Clarke, 1 Gex, Cases in Bankruptcy, 153. In the latter case, Parke, B.
says : " Hall v. Smith, 1 Barn. & C. 407, cannot be supported."
3 Ex parte Buckley, 14 Meeson & Welsby, R. 469.
4 Chitty on Bills, ch. 12, p. 563, (8th edit.); Bayley on Bills, ch. 9,
p. 380; (5th edit.), and note 93; Rees v. Abbott, Cowp. R. 832, Post,
\ 58.
5 Hunt v. Adams, 5 Mass. R. 358 ; S. C. 6 Mass R. 519 ; Palmer v.
Grant, 4 Connect. R. 389; Rawstone v. Parr, 3 Russ. R. 424.
• •
64 PROMISSORY NOTES. [CH. I.
§ 58. Promissory Notes are sometimes made in a very
irregular manner, where the intention of the original
parties is, that a third person should become a surety
therefor. Thus, for example, if a person, not the payee
of a Promissory Note, but intending to become a surety
therefor, should at the time when it is made, instead of
signing himself as a surety at the bottom of the Note,
write at the bottom thereof, below the signature of the
maker, or on the back thereof, "I acknowledge myself
holden as a surety for the payment of the above Note,"
the question would arise, whether he would be bound
thereby to the payee, and, if bound, in what manner.
And it has been held upon such a Promissory Note, that
the maker and the surety are to be deemed both origi-
nal promissors, and the Note a joint and several Pro-
missory Note to the payee, although, as between the
maker and the other party, they should stand in the
relation of principal and surety. 1 And it seems, that
the same rale would apply, if the party indorsed his
name in blank only on the Note at the time when it was
made. 2 It would be otherwise, if the indorsement were
at a subsequent period ; for then other questions and
considerations would intervene. 3
§ 59. The doctrine has been pressed somewhat far-
ther in New York ; and it has been held, that where a
person at the time of tjie making of a negotiable Note
i Hunt v. Adams, 5 Mass. R. 358 ; S. C. 6 Mass. R. 519 ; 7 Mass. R.
518 ; Josselyn v. Ames, 3 Mass. R. 274 ; Baker v. Briggs, 8 Pick. R.
122 ; Chaffee v. Jones,' 19 Pick. R. 260 ; Austin v. Boyd, 24 Pick. R.
64; Moies v. Bird, 11 Mass. R. 436 ; Orvis v. Newell, 17 Conn. R. 97-
2 Ibid. ; Sweetser v. French, 13 Metcalf, R. 262 ; S. C. 2 Cashing, R.
310
3 Tenney v. Prince, 4 Pick. R. 385 ; Ulen v. Kittredge, 7 Mass. R. 233 ;
Birchard v. Bartlet, 14 Mass. R. 279.
CH. I.]
NATURE AND REQUISITES. 65
wrote on the back of it, " For value received, I guaranty
the payment of the within Note," or simply, " I guaranty
the payment of the within Note," he was to be treated
as a joint and several promissor with the maker thereof
and not as a guarantor. 1 But, in other States, a differ-
ent doctrine has been held, and the party treated as a
mere guarantor. 2
1 Luqueer v. Proser, 1 Hill, N. Y. R. 256 ; S. C. 4 Hill, N. Y. R. 420 ;
Hough v. Gray, 19 Wend. R. 202; Douglass v. Howland, 24 Wend. R.
35 ; Miller v. Gaston, 2 Hill, N. Y. R. 188 ; McLaren v. Watson's Exr's,
26 Wend. R. 430 ; Manvow v. Durham, 3 Hill, N. Y. R. 584, 585 ; Post,
§ 133.
2 Oxford Bank v. Haynes, 8 Pick. R. 423 ; Green v. Dodge, 2 Hamm.
Ohio R. 49S. But see Arnsbaugh v. Gearhart, 1 Jones, Penn. R. 482;
Post, § 134, 468. In the case of Luqueer v. Proser, 1 Hill, N. Y. R.
256, Mr. Justice Cowen, in delivering the opinion of the Court, reviewed
the cases at large and. said : — "In Hunt v. Adams, 5 Mass. R. 358,
Chaplin made a Note payable to Bennet, the plaintiff's intestate, under
which Adams wrote, ' I acknowledge myself holden as surety for the pay-
ment of the demand of the above Note.' The Court held an action to be
sustainable by the payee against Adams, as upon a Promissory Note.
One count set out a joint and several Note of him and Chaplin ; and the
other, a several Note of Adams. Parsons, C. J. said, that, as to the in-
testate, the two papers must be considered the joint and several Promissory
Note of Chaplin and Adams ; that it was the same thing in effect as if
Adams's name had been signed directly to the Note as surety. In White
v. Howland, 9 Mass. R. 301, one Tabor made his note payable to Wm.
White, or order; on which the defendant, with another, indorsed, 'For
value received, we jointly and severally undertake to pay the money within
mentioned to the said Wm. White.' The Court said, the case was within
the reason of Hunt v. Adams, and the effect of the defendant Howland's
signature the same as if he had signed the Note on the face of it as surety ;
that is to say, according to Hunt v. Adams, the whole was to be taken as
a joint and several Promissory Note by Tabor, Howland, and the co-signer
with the latter. In Hough v. Gray, 19 Wend. 202, Moon made his Note
payable to Cameron, or bearer, and Hough indorsed, 'This may certify
that I guaranty the payment of the within Note.' We held that he was
liable as maker, severally to Gray, who had purchased the paper of Cam-
eron. I remarked that the Court below were clearly right in holding, that
Hough was liable as a joint and several maker, with Moon, the admitted
6*
66 PEOMISSORY NOTES. [CH. I.
maker; referring to the cases collected in Dean v. Hall, 17 Wend. 214,
among which are the two cases I now cite from the Mass. Rep. If the
respective papers in those cases were in effect joint and several Promissory
Notes, it followed, that those in Hough v. Gray were such ; and that they
were negotiable like a Promissory Note. These cases decide the present.
M. Prosser's guaranty was the same in legal effect as if he had signed
with Edson and Arnold as surety. His promise was absolute ; not a mere
commercial indorsement. In Allen v. Rightmere, 20 John. R. 365, the
Court said of such an undertaking, ' It is absolute that the maker shall pay
the Note when due, or that the defendant (the indorser) will himself pay
it.' How is this distinguishable from a direct signature as surety ? In the
latter case, both promised to see the money paid at the day. A man writes
thus : — 'I promise that $ 100 shall be paid to A. or bearer ; ' who would
doubt that such a promise would be a good Note'? The use of the word
guaranty, or warrant, or stipulate, or covenant, or other word importing
an obligation, does not vary the effect. Read the obligation of a man who
signs a note with his principal, ' A. B. surety ; ' both, and each, virtually
stipulate in the language of the Note I have supposed. Both promise that
the payee shall receive. In Morice v. Lee, 8 Mod. 362, 364, Fortescue,
J. said, ' I promise that J. S. or order, shall receive £100,' is a good Note.
Suppose it to stand, ' shall receive £100 of James Jackson ; ' or, ' 1 will
see that £100 is paid by James Jackson ; ' all this, and the like, is no more
than saying, I will pay so much by the hand of another. If there be in
legal effect, an absolute promise that money shall be paid, all the rest is a
dispute about words. A Note is payable to A. or order, and he indorses it
to B. thus ; — 'pay the contents to B. I waive presentment and notice as
indorser; ' this is a good Promissory Note. The law raises an absolute
promise on such an indorsement. No doubt it enures as an indorsement
for the purpose of transferring the principal Note ; but it is moreover an
absolute promise to pay. It is saying, ' So much is, without condition,
due from the indorser to the indorsee.' And a common due bill is a Note.
Kimball v. Huntington, 10 Wend. 675, 679, 680. The whole inquiry is,
does the paper import an engagement that money shall be paid absolutely 1
If it do, no matter by what words, it is a good Note. Then, on the ques-
tion whether this note be joint or several, or both: 'I promise to pay,'
signed by two, is joint and several. Chitty on Bills, 561, (Am. edit, of
1839.) Each engages for himself and both. It is the same thing where
one promises as principal, and the other as surety, and whether they both
sign on the same side of the paper, or on different sides. Each engages,
and both engage for the payment of the same sum, at the same time, and
to the same person ; their obligations are identical throughout ; both pa-
mpers make but one instrument. When the indorser says, ' I guaranty the
payment of the within Note,' he promises the future holder, as well as the
payee. The authorities say rightly, he has done the same as if he had
signed as surety. By reference, the guaranty becomes a part of the prin-
cipal Note. The guarantor becomes surety for the Note as it is, payable
CH. I.] NATURE AND REQUISITES. 67
to bearer, without declaring that he will engage to any other than the
payee. That the guaranty in question does not come up to the definition
of a Promissory Note, we are referred to Oxford Bank v. Haynes, 8
Pick. 423. In that case, it was certainly held, that the words, ' I guar-
anty the payment of the within Note,' signed by the guarantor, made him
liable as such, but not as surety ; in other words, the Court denied to
such an indorsement the operation of a Promissory Note. But the deci-
sion was based on a rule as to the mode of fixing guarantors, peculiar to
that State. The Court admitted, that if the engagement were to be con-
sidered absolute, it was a Promissory Note ; but they considered it condi-
tional, and, under some circumstances at least, as requiring presentment
and notice, to fix the guarantor; and such is the doctrine of some other
States. It is, however, unknown here. It was repudiated in Allen v.
Rightmere, and often since ; in one case, very lately, on a review of seve-
ral decisions by the Courts of the United States, and by the State Courts.
This distinction prevailing in Massachusetts, of course makes all the differ-
ence. With our rules as to charging guarantors, the learned Court in
Massachusetts virtually concede that the defendant's guaranty would be
considered a Note, even there. Another case cited for the defendant pro-
ceeded on the same ground as that of Oxford Bank v. Haynes. It is
Greene v. Dodge, 2 Hamm. Ohio R. 498. Another (Cumpston v. McNair,
1 Wend. 457) went on the ground that the guaranty was not, as in this
case, absolute, but was made conditional by its own express provisions.
All three of these cases will be found, when their principal is seen, to be
in favor of the views I have expressed concerning the guaranty now in
question. I am aware of no case the other way. Non constat, in Meech
v. Churchill, what was the language of the guaranty. The case is very
far from deciding the present." Post, § 133, 134.
68 PROMISSORY NOTES. [CH. II.
CHAPTER II.
COMPETENCY AND CAPACITY OF PARTIES TO PROMISSORY
NOTES.
§ 60. Having disposed of these considerations rela-
tive to the nature and requisites of Promissory Notes,
let us next proceed to the inquiry, who are competent
and capable of becoming parties thereto, as makers,
payees, indorsers or indorsees, or holders thereof. For
however in all other respects the instrument may have
all the requisites to give it complete effect and opera-
tion, yet if it is not made by parties, who are competent
to contract the obligations arising therefrom, or made to
parties capable to take or hold any title derived there-
from, it must be deemed in law a mere nullity, and in-
capable of being enforced in any Court of Justice, as
to those parties. Still, however, it may be binding and
obligatory as between other parties thereto, who do pos-
sess such competency and capacity ; and therefore the
inquiry must necessarily be important, by and between
whom, and in what cases, a particular Promissory Note
is valid or not.
§ 61. In the first place, then, let us inquire who are
competent to contract and bind themselves as makers of
a Promissory Note. And here, the general rule applies
that all persons are competent to bind themselves as
makers of a Promissory Note, who are not incapacitated
by some special provision or disability created by law.
Hence, all persons of full age, siri Juris, and of sound
CH. II.] CAPACITY OF PARTIES. 69
understanding, whether males or females, aliens or na-
tives, whether acting in their own right, or acting as
agents, guardians, trustees, executors or administrators,
or otherwise, en autre droit, are capable of binding them-
selves as makers of a Promissory Note. So are part-
ners and corporations, acting within the scope of the
particular business of the partnership or corporation. 1
§ 62. Originally, it is' not improbable, that the same
rule was applied to Promissory Notes, upon their first
introduction into use upon the continent of Europe, as
seems to have been adopted in relation to Bills of Ex-
change ; that they were deemed to be strictly commer-
cial instruments, and could be made only between mer-
chants and other persons engaged in trade. But this,
if it ever was a general rule, was soon disregarded in
practice ; and Bills of Exchange, and Promissory Notes,
became obligatory as privileged instruments, upon all
persons who were parties thereto, whether they were
merchants or not, with certain special exceptions, such,
for example, as, in France, Bills or Notes given by wo-
men, whether married or single, who were not mer-
chants ; 2 or by persons, not merchants, on account of
other transactions than the operations of commerce,
traffic, exchange, banking, or brokerage ; in which cases
they were reduced to the mere denomination of simple
promises. 3 In England, Bills of Exchange seem, upon
1 Story on Bills, § 72 ; Chitty on Bills, ch. 2, p. 21, (8th edit.) ; Bay ley
on Bills, ch. 2, $ 1, 5-9, p. 44-75, (5th edit.)
2 Pothier, De Change, n. 27-29, 124; Jousse, Sur L'Ordin, 1673, tit.
12, art. 3, p. 227 ; Pardessus, Droit Comm. Tom. 1, art. 55; Merlin Re-
pertoire, Billet de Change, § 3, p. 192, (edit. 1827) ; Id. Ordre Billet A,
§ 1, art. 4, p. 230 ; Code de Coram, art. 113, 636 ; Story on Bills, § 73.
3 Ibid.
70 PROMISSORY NOTES. [CH. II.
their first introduction therein, to have been held limited
to merchants and traders ; but the rule was soon ex-
panded, so as to reach all other classes of persons. 1
And when Promissory Notes were recognized as nego-
tiable instruments, by the Statute of 3 and 4 Anne,
ch. 9, the language included all persons whatsoever,
whether merchants or traders, or not 2
§ 63. As to trustees, guardians, executors, and admi-
nistrators, and other persons, acting en autre droit, they
are, by our law, generally held personally liable on Pro-
missory Notes, because they have no authority to bind,
ex directo, the persons for whom, or for whose benefit, or
for whose estate they act ; and hence, to give any vali-
dity to the Note, they must be deemed personally bound
as makers. 3 It is true, that they may exempt them-
selves from personal responsibility, by using clear and
explicit words, to show that intention ; but, in the ab-
sence of such words, the law will hold them bound. 4
Thus, if an executor, or administrator, should make or
indorse a Note in his own name, adding thereto the
words, a as executor," or " as administrator," he would be
personally responsible thereon. If he means to limit
his responsibility, he should confine his stipulation to
pay out of the estate. 5
i Chitty on Bills, ch. 1, p. 13, (8th edit.) ; Story on Bills, § 7, note I,
sub finem.
2 Cunningham on Bills, p. 106; Kyd on Bills, p. 18, 19, (3d edit.);
Bayley on Bills, ch. 1, p. 1, note 1, (5th edit.)
3 Story on Agency, § 280-287 ; Thacher v. Dinsmore, 5 Mass. R. 299 ;
Foster v. Fuller, 6 Mass. R. 58 ; Hills v. Bannister, 8 Cowen, R. 31 ;
Bayley on Bills, ch. 2, § 7, 8, p. 68-74, (5th edit. 1830.)
4 Bayley on Bills, ch. 2, § 7, 8, p. 69-74, (5th edit. 1830) ; Eaton v.
Bell, 5 Barn. & Aid. 34.
5 Childs v. Monins, 2 Brod. & Bing. R. 460 ; King v. Thorn, 1 Term
CH. II.] CAPACITY OF PAETIES. 71
§ 64. In treating of trustees, and guardians, and other
persons, acting en autre droit, who become parties to
Promissory Notes, as personally responsible on such
Notes, or on contracts generally, which they make in
that quality or character, our law differs from the French
Law ; for that law treats all such contracts as strictly
the contracts of the principal, through the instrument-
ality of the trustee, guardian, or other person, acting
en autre droit. Thus, a tutor, when he contracts in that
quality, may stipulate and promise for the minor ; for it
is the minor who is deemed to contract, stipulate, and
promise for himself by the ministry of his tutor ; the
law giving a character to the tutor, which makes his
acts to be considered as those of the minor, in all con-
tracts relating to the administration of the tutelage. It
is the same with respect to a curator, and every other
legitimate administrator. It is the same with an attor-
ney (procureur) ; for the procuration, (or power of attor-
ney,) which gives him the right to use the name of the
person for whom he contracts, makes the person giving
it to be considered as contracting himself, through ffie
ministry of the attorney. 1 But each law proceeds upon
the same general principle ; for, if the principal is in-
capable of contracting in the particular case, or is not
bound by the contract, then the agent, contracting en
autre droit, is bound by each law. Thus, for example,
if the tutor of a minor, not being a merchant, were to
draw a Bill of Exchange for the minor, the latter would
R. 487; Bailey on Bills, ch. 2, $ 8, p. 74, (5th edit. 1830) ; Carter v.
Saunders, 2 Howard, Mississippi R. 851 ; Robertson v. Banks, 1 Smedes
& Marshall, R. 666 ; Story on Bills, § 74.
1 Pothier on Obligations, n. 74, 448.
72 PROMISSORY NOTES. [CH. II.
not be bound as drawer, and, therefore, the tutor would
be. 1
§ Q5. As to agents, if they draw, or indorse Notes in
their own names, although on account, and for the ben-
efit of their principals, they are held personally liable,
because they alone can be treated on the face of the
Notes as parties. 2 If they would bind their principals,
they must draw, or indorse the Notes in the name of
their principals, and sign for them and in their names. 3
1 Code de Comm. art. 114; Locre, Esprit du Code de Comm. Liv. 1,
tit. 8, § 1, Tom. 1, p. 356. The law of Scotlaod coincides with that of
France. 1 Bell, Comm. B. 3, ch. 2, $ 4, p. 396, (5th edit.) Story on
Bills, § 75.
2 Bayley on Bills, ch. 2, § 7, p. 69-74, (5th edit. 1830) ; Thomas v.
Bishop, 2 Str. R. 955 ; Goupy v. Harden, 7 Taunt. R. 159. But see
Sharp v. Emmet, 5 Whart. R. 288.
2 Story on Agency, § 147-156,275-278; Bayley on Bills, ch. 2, §7,
p. 69 - 74, (5th edit. 1830) ; Chitty on Bills, ch. 5, p. 186, (8th edit. 1833) ;
Kyd on Bills, p. 33, 34, (3d edit.) Cases of agency often involve very
nice and embarrassing considerations, from the peculiar language of the
instrument to decide, whether the agent is personally bound or not. In
order to bind the principal, and exonerate himself, the agent should regu-
larly sign thus : " A. B. (the principal) by C. D. his agent" (or attorney
as the case may be) ; or, what is less exact, but may suffice, " C. D. for
A. B." Story on Agency, § 153 ; Chitty on Bills, ch. 2, p. 37, 38, (8th
edit. 1833.) But, in practice, there are innumerable deviations from this
simple and appropriate form ; and the decisions upon the various cases
which have arisen in courts of justice, involve much conflict of doctrine and
opinion, and do not seem always to have proceeded upon any uniform
principle of interpretation. Many of the cases, on this subject, will be
found collected in Story on Agency, § 147- 155 ; Id. § 269- 280 ; Bayley
on Bills, ch. 2, § 7, p. 69-76, (5th edit. 1830) ; Chitty on Bills, ch. 2,
p. 37-39, (8th edit. 1833.) Even if an agent draws, in his own name,
on his principal, for the account of the latter, the payee will be entitled to
hold him personally bound as drawer. Bayley on Bills, ch. 2, § 7, p. 69
-73, (5th edit. 1830) ; Story on Agency, § 156, 269. So, an agent, who
should draw a Bill in favor of his principal on the purchaser of goods, sold
on account of his principal, would be personally liable to the latter, as
drawer of the Bill, upon its dishonor. Lefevre v. Lloyd, 5 Taunt. R. 749 ;
CH. II.] CAPACITY OF PARTIES. 73
§ 66. Similar principles pervade the foreign law.
Agents may draw Notes (and the same rule will apply
to the indorsement of Notes) in the name of their prin-
cipals. But then, in order to avoid personal responsi-
bility, agents must there, also, draw the Notes in an
appropriate manner ; otherwise, they may become per-
sonally responsible to the payee. Thus Heineccius
says of Bills, what is equally applicable to Notes ; Quid
si institor cambium trassarit ad dominant, hie vero bonis
labcdur ? Tunc distinguitur, dominine fidem sequutus sit
remiitens, an institoris. Hoc enim casu adversus institorem
regressum habet, aliquando etiam finito officio ; illo casu ipse
damnum sentire tenetur. Quum vero parum plerumque
constet, utrius fidem sequutus sit remiitens : ejus jurejurando
rem ad liquidum perducendam esse, censet Stryckius}
Perhaps the true rule of the foreign law may be, (for
some uncertainty seems to rest upon it,) that the ques-
tion is one, which resolves itself into the simple consi-
deration, not of the form of the instrument, but of the
fact, to whom the credit, under all the circumstances, is
given, whether to the principal, or to the agent. 2
Story on Agency, § 156, 269. However, an exception is generally made
in favor of a known public agent, who, if he draws on account of the
public, is generally held not personally responsible on the Bill, unless under
special circumstances. Chitty on Bills, ch. 2, p. 37-39, (8th edit. 1833) ;
Story on Agency, § 302-307. See also, Eaton v. Bell, 5 Barn. & Aid.
37. See Fox v. Frith, 10 Mees. & Wels. 135, 136; Story on Bills,
§76.
' Heinecc. de Jure, Camb. 4, § 25, 26, (edit. 1769) ; Id. cap. 5, § 12;
Pothier on Oblig. n. 74, 448.
2 I have not found in the foreign writers, the question treated at large,
when, and in what cases, and under what particular circumstances the
agent will be personally bound or not, as drawer of a Bill, drawn on ac-
count of his principal, with the practical fulness, or distinctness, with
which it has been treated by the English and American courts. It is not
improbable that the doctrine of Heineccius, stated in the text, contains the
prom, notes. 7
74 PROMISSORY NOTES. [CH. II.
§ 67. One of the most important questions, in a prac-
tical sense, which can arise, is, when, and under what
circumstances, an agent makes himself personally a
party to a Promissory Note, and when, and under what
circumstances, his principal only is bound as a party.
As to the mode, in which he may acquire his authority,
and the nature and extent of his authority, it is not the
design of these Commentaries to enter into any inquiry
or examination. That properly belongs to a treatise
upon the Law of Agency. 1 But, supposing the agent
to have full authority to make or indorse a Note for his
principal, the mode, in which it is to be exercised in
general principles adopted in the foreign law, without any very exact con-
sideration of the form, which the contract assumes in the written instru-
ment. So that the question then turns, or at least may turn simply upon
this : To whom, taking all the facts, was the credit actually given, and
intended to be given 1 to the agent, or to the principal ? See Pothier, De
Change, n. 28. Pothier, in his treatise on Obligations, (n. 74, 448,) has
pointed out, distinctly, the difference between cases where the agent con-
tracts in his own name, and the cases where he contracts in the name of
his principal. Thus, he says, n. 74 : " What has been hitherto said as to
our only being able to stipulate or promise for ourselves, and not for ano-
ther, is to be understood as applying to contracts, which we make in our
own name ; but we may lend our ministry to another person, for whom
we may contract, stipulate, or promise ; and, in this case, it is not we,
properly speaking, who contract, but the other person, who contracts by
our ministry." And again he says, n. 448 : " In order to raise the acces-
sory obligation of employers, the manager must have contracted in his own
name, although he was acting for the employer ; but, when he contracts
in his quality of agent, he dues not enter into any contract himself; it is
his employer who contracts by his ministry. Supra, n. 74. In this case,
the manager does not oblige himself; it is the employer, alone, who con-
tracts a principal obligation, by the ministry of his manager. When the
manager contracts in his own name, the contract, to oblige his employer,
must concern the affair to which he is appointed, and the manager must
not have exceeded the limits of his commission. Dig. Lib. 1, («,) § 7, &
12, de Exerc. Act." Story on Bills, § 77.
i See Story on Agency, § 45-143. See Winter v. Hildreth, 13 N.
Hamp. R. 104.
CH. II.] CAPACITY OP PARTIES. 75
order to exempt himself from personal responsibility,
and to bind his principal, naturally belongs to the dis-
cussion of the present subject. It is the more neces-
sary, because the authorities are not entirely agreed in
their conclusions as to particular cases, however well
they may agree in an exposition of the general princi-
ples, which ought to govern in all. It has been laid
down by a learned author, that where a Note is drawn
by an agent, executor, or trustee, he should take care,
if he means to exempt himself from personal responsi-
bility, to use clear and explicit words to show that
intention. 1 But, then, the difficulty is not in ascertain-
ing the value of the admonition, or its true use, as a
guide to the diligent and the cautious ; but it is to as-
certain, when, in a just juridical sense, the intention is
upon the face of the instrument clear and explicit, and
what is to be the interpretation thereof, where the
language is ambiguous, or obscure, or admits of various
readings.
§ 68. The true and best mode of an agent's signing,
or indorsing, a Promissory Note for his principal, where
he means to make the latter, and not himself, personally
responsible thereon, is to sign, or indorse, the same,
"A. B. (the principal) by his attorney or agent C. D." s
If the signature be, " C. D. for A. B.," (the principal,)
it will be equally available, although not so formally
correct. 3 But, in the practice of common life, there are
many deviations from this course ; and occasionally
1 Bayley on Bills, ch. 2, § 7, p. 69 (5th edit.)
2 Chitty on Bills, ch. 2, p. 37, 38 (8th edit.) ; Story on Agency, § 153,
and note, § 275 ; Wilks v. Back, 2 East, R. 142 ; Abbott on Shipp. Pt. 3,
eh. 1, § 2, note (c).
3 Ibid.
76 PROMISSORY NOTES. [CH. II.
they give rise to great embarrassments, in endeavoring
to ascertain, whether, in the actual language used, the
agent is personally bound, or the principal alone is
bound, or both. Neither is it possible to extract from
the authorities any consistent rules, to guide us in this
matter of interpretation. Where, indeed, upon the face
of the instrument, the agent signs his own name only,
without referring to any principal, there he will be held
personally bound, although he is known to be, or avow-
edly acts as agent. 1 But, in many cases, the principal
is referred to in the instrument, and it is to such cases,
that the preceding observations apply.
§ 69. A liberal construction is ordinarily adopted in
the exposition of commercial instruments, for the pur-
pose of encouraging trade, and to meet, as far as possi-
ble, the ordinary exigencies of business, which require
promptitude of execution, and rarely admit of deliberate
examination of the true force of words. In furtherance
of this policy, if it can, upon the whole instrument, be
collected, that the true object and intent of it are to
bind the principal, and not to bind the agent, courts of
justice will adopt that construction of it, however in-
formally it may be expressed. 2 Thus, where an agent,
1 Story on Agency, § 269-278 ; Story on Bills, § 76, and note ; Chitty
on Bills, ch. 2, p. 37, 38 (8th edit. 1833) ; Id. ch. 5, p. 186 ; Bayley on
Bills, ch. 2, § 7, p. 69, 70 (5th edit.) ; Ante, § 63. See as to indorse-
ment of Notes by Agents, Heinecc. De Camb. cap. 3, § 15, § 7 ; Id. cap.
2, $7, §9.
2 Ibid.; Pentz v. Stanton, 10 Wend. R. 271; Mechanics' Bank of
Alexandria v. Bank of Columbia, 5 Wheat. R. 326 ; Story on Agency,
§ 154 ; Id. $ 269, 270, 275, 276, 395-400 ; Townsend v. Hubbard, 4 Hill,
N. Y. R. 351 ; Morse v. Green, 13 N. Hamps. R. 32. [In the latter
case it was held, that if a party authorize another to subscribe his name to
a note, the fact that the signature was placed there by an agent need not
appear on the note.]
CH. II.] CAPACITY OF PARTIES. 77
duly authorized, made a Promissory Note thus ; " I
promise to pay J. S. or order," &c, and signed the
Note, " Pro C. D., A. B. ;" it was held to be the Note of
the principal, and not of the agent, although the words
were, u I promise." 1 So, where A. and B. wrote a Note
in these words, " We jointly and severally promise," and
signed it A. and B. for C, it was held to he the note of
C, and not of A. and B., the agents. 2 So, where the
Note was, " I promise," &c, and it was signed by the
agent, "For the Providence Hat Manufacturing Com-
pany, A. B." (the agent) ; it was held to be a Note of
the Company, and not of the agent. 3 So, a Promissory
Note of a like tenor, signed by the agent in this manner,
"A. B., agent for C. D.," has been held to be the Note
of the principal, and not of the agent. 4 So, where a
Promissory Note was in these words ; " I, the subscriber,
treasurer of the Dorchester Turnpike Corporation, for
value received, promise," &c, and it was signed, " A. B.,
Treasurer of the Dorchester Turnpike Corporation ; " it
was held to be the Note of the Corporation, and not of
the treasurer. 5 So, where a Note purported to be a
promise by " The President and Directors " of a par-
ticular corporation, and was signed "A. B., President,"
it was held to be the Note, not of A. B., but of the
1 Long v. Colburn, 11 Mass. R. 97 ; Ex parte Buckley 14 Meeson &
Welsby, 469 ; In the matter of Clarke, 1 Gex, Cases in Bankruptcy, 153.
2 Rice v. Gove, 22 Pick. R. 158 ; Story on Agency, § 154 ; Id. § 275,
276, 395.
3 Emerson v. Prov. Hat Manuf. Co. 12 Mass. R. 237.
4 Ballou v. Talbot, 16 Mass. R. 461.
5 Mann v. Chandler, 9 Mass. R. 335. See Hills v. Bannister, 8 Cowen,
R. 31 ; Story on Agency, § 276 ; Barker v. Mechanics' Fire Ins. Co. 3
Wend. R. 94; Mott v. Hicks, 1 Cowen, R. 513; Brockway v. Allen, 17
Wend. R. 40; Cole v. Sherwood, 20 Vermont R. 42.
7*
78 PROMISSORY NOTES. ['CH. II.
corporation. 1 But, if the Note had been, "I, A. B.,
President of the Corporation (naming it), promise to
pay," &c, it would (it seems) have been deemed to be
the personal Note of A. B., and not of the corporation. 2
So, where the agent of a corporation drew a Bill of
Exchange upon the president of the corporation, styling
him such, and the latter accepted the Bill, it was held,
that he was not personally liable, if he had authority to
1 Molt v. Hicks, 1 Cowen, R. 513. See also Bowen v. Morris, 2
Taunt. 374 ; Shelton v. Darling:, 2 Conn. R. 435 ; Brockway v. Allen,
17 Wend. R. 40 ; Story on Agency, § 278, and note, § 279.
2 Barker v. Mechanics' Fire Ins. Co. 3 Wend. R. 94. See post, § 70.
But see Brockway v. Allen, 17 Wend. R. 40; Hills v. Bannister, 8
Cowen, R. 31 ; Story on Agency, § 276 ; Mann v. Chandler, 9 Mass. R.
335. — It is not easy to reconcile all the cases in the books on this subject;
although I cannot but think, that the true principle to be deduced from
them is that stated in the text. See Paley on Agency, by Lloyd, p.
378-385, and Bayley on Bills, (2d Amer. edit, from 5th London edit.),
by Phillips and Sewall, ch. 2, § 7, p. 68-76 (edit. 1836), and notes, ibid.;
Bowen v. Morris, 2 Taunt. 374 ; Kennedy v. Gouveia, 3 Dowl. & Ryl.
503 ; Dubois v. Del. and Hudson Canal Co. 4 Wend. R. 285. In Pentz
v. Stanton, 10 Wend. R. 271. where an agent drew a bill for a purchase
of goods, on account of his principal, and signed the Bill, " A. B. agent,"
not staling the name of his principal, it was held, that he, and not his
principal, was personally bound by the Bill, as drawer. But the principal
was held liable for the goods on a count for goods sold and delivered, as
the form of the Bill showed, that exclusive credit was not given to the
agent. There is a curious case, cited in the Digest, Lib. 14, tit. 3, 1. 20,
where the question, whether an a^ent, who wrote a letter to a creditor,
stating himself to be agent of his principal, was personally liable on the
contract stated in the letter ; and it was held, that he was not, as he wrote
confessedly as an agent. Pothier, Pand. Lib. 14, tit. 3, n. 2 ; 1 Domat,
B. 1, tit. 16, § 3, art. 8. In Dubois v. Del. and Hudson Canal Co. 4
Wend. R. 285, an agent signed and sealed a contract, " M. W., agent for
the Del. and Hudson Canal Co. ; " and it was held, that he was not per-
sonally liable thereon, as he was authorized to make the contract, although
it was not under the seal of the corporation. S. P. Randall v. Van Vech-
ten, 19 John. R. 60. But see Hopkins v. Mehaffy, 11 Serg. & R. 129.
See Story on Agency, § 274-278.
CH. II.] CAPACITY OF PARTIES. 79
accept the Bill ; but the corporation was alone liable. 1
So, where the agents of a corporation, being duly
authorized, made a written contract as follows ; " We
hereby agree to sell," &c, and signed it as agents of
the corporation, it was held, that they were not person-
ally bound thereby ; but the corporation was. 2 So,
where A., an agent duly authorized, wrote on a Note,
" By authority from B., I hereby guaranty the payment
of this Note," and signed in his own name, A. ; it was
held to be the guaranty of the principal, and not of the
agent. 3 So, where A., an agent, entered into and signed
an agreement " as agent for and on behalf of B.," and
B. shortly afterwards wrote on it the words, " I hereby
sanction this agreement, and approve of A.'s having
signed it on my behalf; " it was held to be the agree-
ment of B., and that A. was not personally responsible
thereon. 4 So, where, on a sale of real property by a
corporation, a memorandum of the sale was signed by
the parties, in which it was stated, that the sale was
made to A. B., the purchaser, and that he and C. D.,
"mayor of the corporation, on behalf of himself and the
rest of the burgesses and commonalty of the borough of
Caermarthen, do mutually agree to perform and fulfil,
on each of their parts respectively, the conditions of
sale," and then came the signature of the purchaser, and
of "C. D., mayor;" it was held, that the agreement
was that of the corporation, and not that of the mayor
1 Lazarus v. Shearer, 2 Alabama R. 718, N. S.
2 Many v. Beelcman Iron Company, 9 Paige, R. 188; Evans u.JWells,
22 Wend. R. 325.
3 N. E. Mar. Ins. Co. v. Be Wolf, 8 Pick. 56. See Passmore v. Mott,
2 Binn. R. 201 ; Story on Agency, § 160, a, 161, 269, 270, 275, 276,
395-400.
4 Spittle v. Lavender, 2 Brod. & Bing. R. 452.
80 PROMISSORY NOTES. [CH. II.
personally; and that, consequently, the mayor could
not sue thereon. 1 So, where in articles of agree-
ment the covenants were in the name of a corporation,
without mention of any agent, but the instrument was
signed by the president of the corporation by his pri-
vate name on behalf of the corporation, and sealed with
his private seal ; it was held, that he was not person-
ally liable thereon. 2
§ 70. On the other hand, unless some agency is ap-
parent on the face of the instrument, it has been not un-
frequently held, that the principal is not bound, although
the agent had full authority to make the contract. 3
Thus, where a wife had full authority to sign Notes for
her husband, and she made a Note in her own name, not
referring to her husband, either in the body of the Note,
or in the signature, it was held, that the husband was
not bound. 4 So, where A., B., and C. made a Note as
follows ; " We, the subscribers, jointly and severally,
promise to pay D., or order, for the Boston Glass Manu-
factory, the sum of — ," and they signed the Note in
their own names, without saying "as agents," it was
held, that they were personally bound, and not the cor-
poration. 5 So, where two persons made a Promissory
1 Bowen v. Morris, 2 Taunt. R. 374, 387. See Kennedy?;. Gouveia,
3 Dowl. & Ryl. 503 ; Hopkins v. Mehaffy, 11 Serg. & R. 129 ; Meyer v.
Barker, 6 Binn. 228, 234. See Woodes v. Dennett, 9 N. Hamp. R. 55;
Story on Agency, § 275, 276.
2 Hopkins v. Mehaffy, 11 Serg. & R. 129 ; Story on Agency, § 154,
273, note.
3 Story on Agency, § 147, note.
4 Minard v. Mead, 7 Wend. R. 68.
5 Bradley v. The Boston Glass Manufactory, 16 Pick. R. 347. This
case seems distinguishable from that of Rice v. Gove, 22 Pick. R. 158,
principally in the circumstance, that the signatures of A., B., C. did not
purport to be as agents. Story on Agency, § 147 and note, § 154, 275, 276.
CH. II.] CAPACITY OF PARTIES. 81
Note in this form ; u We, the subscribers, trustees for
the proprietors of the new congregational meeting-
bouse at A., promise to pay B., the sum of," &c, and
signed it C, D., E., F. ; it was held, that the Note bound
them personally, and not the proprietors. 1 So, where
the committee of a town made a contract in the follow-
ing words ; " Agreement between A., B., and C, com-
mittee of the town of N., of the one part, and D., and E. ?
of the other part ; and the said committee agree to pay,"
&c, signing their own names, A., B., and C. ; it was
held, that they were personally liable on the contract. 2
So, where a committee of the directors of a turnpike
corporation entered into a contract under seal, de-
scribing themselves as such committee, on the one
part, with the plaintiff on the other part, and signed
and sealed the contract in their own names ; it was
held that they were personally responsible ; for it was
the deed of the committee, and not of the directors,
or of the corporation. 3 So, where certain persons
signed a Note, describing themselves as "Trustees
uf Union. Religious Society," it was held, that they were
personally liable thereon, although it was proved, that
the society was a corporation, and the Note was given
for a balance due from the society for a church-bell. 4
§ 71. Another important inquiry is, how far a person,,
who signs a Promissory Note in the name of his princi=
1 Packard v. Nye, 2 Mete. R. 47 ; Cleveland v. Stewart, 3 Kelly, R. 283,
2 Simonds v. Heard, 23 Pick. R. 121.
3 Tippets v. Walker, 4 Mass. R. 595. But see Leach v. Blow, 8
Smedes & Marshall, R. 221.
4 Hills v. Bannister, 8 Cowen, R. 31 ; Story on Agency, § 154 ; Shel-
ton v. Darling, 2 Connect. R. 435 ; Barker v. Mechanics' Fire Insur. Co.
3 Wend. R. 94. But see Mann v. Chandler, 9 Mass. R. 335 ; Mott v.
Hicks, 1 Cowen, R. 513. See Cooch v. Goodman, 2 Adolph. & Ellis,
New R. 580, 595, 596 ; Story on Agency, § 276.
82 PROMISSORY NOTES. [CH. II.
pal, is personally bound thereby, if, in point of fact, bis
principal is not bound thereby, either because the agent
had no authority whatsoever, or had exceeded his
authority. That a person, thus acting without au-
thority, or exceeding his authority, would be personally
bound therefor to the other contracting party, cannot be
doubted. But the question is, whether he may, under
such circumstances, be treated as personally liable on
the very instrument itself, if there are apt words therein,
which may properly charge him. Thus, for example, if
an agent should, without due authority, make a Promis-
sory Note, saying in it, " I promise to pay," &c, and
sign it " C. D., by A. B., his agent," or " A. B., agent
of C. D." ; in such a case, may the words, as to the
agency, be rejected, and the agent be held personally
answerable as the promisee of the Note ? Upon this
point the authorities do not seem to be entirely agreed. 1
1 la cases, where a person executes an instrument in the name of
another without authority, there is some diversity of judicial opinion, m to
the form of action, in which the agen± U. to be made liable for the breach
of duty. In Kngiand, it is held, that the suit must be by a special action
on the case. Polhill v. Walter, 3 Barn. & Adolp. 114. The same doc-
trine has been asserted in Massachusetts. Long v. Colburn, 11 Mass. R.
97 ; Ballou v. Talbot, 16 Mass. R. 461 ; and in Pennsylvania, in Hop-
kins v. MehafFy, 11 Serg. & R. 129. In New York, it has been held,
that an action may, under such circumstances, be maintained upon the in-
strument, as if it were executed by the agent personally. Thus, if an
agent, without authority, should sign a Note in the name of another, it has
been held, that he may be sued thereon, as if it were his own Note.
Dusenbury v. Ellis, 3 John. Cas. 70 ; Story on Agency, § 251, note.
See also White v. Skinner, 13 John. R. 307 ; Meech v. Smith, 7 Wend.
R. 315 ; Cunningham v. Soules, 7 Wend. R. 106 ; Stetson v. Patten, 2
Greenl. R. 358 ; Chitty on Contr. 211. See also Woodes v. Dennet, 9
N. Hamp. R. 55 ; Grafton Bank v. Flanders, 4 N. Hamp. R. 23 ; May-
hew v. Prince, 11 Mass. R. 54 ; 2 Kent, Comm. Lect. 41, p. 631, 632
(5th edit.) ; Clay v. Oakley, 17 Martin, R. 138 ; Perkins v. Washington
Ins. Co. 4 Cowen, R. 469 ; Feeter v. Heath, 11 Wend. R. 477 ; White
CH. II.] CAPACITY OF PARTIES. 83
§ 72. As to partners, the signature of the firm is, in
general, indispensable to create a liability of the part-
nership, as makers, or inclorsers, of Promissory Notes ; *
and each partner has complete authority to use it ; and,
when so used, the Note will be deemed to be made on
the partnership account, and bind it accordingly, unless,
upon the face of the Note, or upon collateral proof, it is
clearly established, that the party, taking it, had full
notice, that the Note was drawn, or indorsed, for pur-
poses and objects, not within the partnership business. 2
And this seems equally true in the law of France and of
Scotland. 3
§ 73. There is occasionally some nicety in the appli-
cation of the general doctrine, as to what are to be
deemed partnership Notes. Thus, a Promissory Note
beginning with the words, " I promise to pay," but
signed in the name of the firm, as, for example, "A., B.
& Co.," or « B., for A., B. & Co.," will be a good Note
v. Skinner, 13 John. R. 307; Harper v. Little, 2 Greenl. R. 14 ; Lazarus
V. Shearer, 2 Alabama R. 718, N. S. However, if an agent, in
purchasing goods, should exceed his authority, he may be properly treated
as the purchaser, since no other person would be liable. Hampton
v. Speckenagle, 9 Serg. & R. 212 ; Story on Agency, § 264, a.
1 Chitty on Bills, p. 67-69 (8th edit. 1833); Id. p. 186; Story
on Partnership, § 102, 128, 134, 136.
2 Story on Partnership, § 126- 132.
3 Story on Partnership, § 129; Pothier on Oblig. n. 83; Pothier, De
Societe, n. 101 ; 2 Bell, Coram. B. 7, p. 616, (5th edit.); Story on Bills
of Exchange, § 78 ; Leroy v. Johnson, 2 Peters, R. 186 ; Furze v. Shar-
wood, 2 Gale & David. 116 ; Hawken v. Bourne, 8 Mees. & Wels. 710;
Kirk v. Blurton, 9 Mees. & Wels. 284 ; Faith v. Richmond, 11 Adolp.
& Ellis, 339; U. States Bank v. Binney, 5 Mason, R. 176 ; Winship v.
Bank of U. States, 5 Peters, R. 529 ; Etheridge v. Binney, 9 Pick. R.
272; Story on Partnership, $ 101, 109, 126, 132; Smith v. Lusher, 5
Cowen, R. 688 ; Drake v. Elwyn, 1 Caines, R. 184; Crumpston v. Mc-
Nair, 1 Wend. R. 457 ; Matheson's Administrator v. Grant's Administra-
tor, 2 Howard, Sup. Ct. R. 263, 264, 283.
84 PROMISSORY NOTES. [CH. II.
to bind the partnership. 1 But suppose the partnership
business is carried on in the name of one member only
of the firm, or his name is the name of the firm also, the
question may arise, when, and under what circum-
stances, a Promissory Note, made or indorsed in the
name of such member, will bind the firm, and when it
will be deemed the separate Note of that member only.
If the note or indorsement is made in the course of the
partnership business, or for a partnership transaction, or
upon the faith, that it is for account of the partnership
business, it will bind the firm ; otherwise, it will be
treated as the separate Note only of the member, who
signs or indorses it. 2 The same rule will apply to a
Note, where two trades are carried on in the same place,
or in different places by the same persons, in the same
firm name ; 3 or, by two firms, carrying on business in
the same place, or in different places, under the same
firm name, where the partners in each firm are partly
the same and partly different persons. 4 In each case
the Note will bind the firm on whose account, or busi-
ness, or the faith thereof, the Note has been taken. Of
course, this rule will apply only to persons, who receive
1 Bayley on Bills, ch. 2, § 6, p. 53, 54, (5th edit.) ; Mason v. Rumsey,
1 Camp. R. 384 ; Galway v. Matthew, 1 Camp. R. 403; S. C. 10 East,
R. 264 ; Wilks v. Back, 2 East, R. 242.
2 Bayley on Bills, ch. 2, § 6, p. 53-56, (5th edit.) ; South Car. Bank
v. Case, 8 Barn. & Cressw. 427 ; Furze v. Sharvvood, 2 Adolp. & Ellis,
New R. 388, 418, 427 ; Vere v. Ashby, 10 Barn. & Cressw. 288 ; Ethe-
ridg-e v. Bmney, 9 Pick. R. 272; Ex parte Bolitho, 1 Buck, Bank. R.
100 ; ThicUnesse v. Bromilow, 2 Cromp. & Jerv. 425; U. Stales Bank v.
Binney, 5 Mason, R. 176 ; S. C. 5 Peters, R. 529 ; Manuf. and Mechan-
ics' Bank v. Winship, 5 Pick. R. 11.
3 Bayley on Bills, ch. 2, § 6, p. 55, (5th edit.) ; Swan v. Steele, 7 East,
R. 210.
4 Ibid.
OH. II.] CAPACITY OP PARTIES. 85
the Note as bond fide holders, without any knowledge,
that there is in the making or indorsing of the Note any
fraud, or misconduct, or excess of authority by the part-
ner, who signs or indorses it. 1
§ 74. As to corporations, according to the old law,
they could, generally, (for there always were some ad-
mitted exceptions,) contract only under their corporate
seal. But the rule has been gradually relaxed, and the
exceptions enlarged, until, in our day, it may be taken
to be a firmly established rule in America, and admit-
ted, to a great extent, in England, that corporations may
contract and bind themselves by contracts not under
seal, made through the instrumentality of their agents,
and within the proper scope of the objects and purposes
of their charter. 2 But the question is more nice, as to
to the right of a corporation to become makers, or in-
dorsers, of Promissory Notes, or to become parties to
any other negotiable paper. That an express authority
is not indispensable to confer such a right, is admitted. 3
1 Bayley on Bills, ch. 2, § 7, p. 55-57, (5th edit.) ; Galway v. Mat-
thew, 10 East, R. 264; Ridley v. Taylor, 13 East, R. 175; Shirreff v.
Wilks, 1 East, R. 48; Green v. Deakin. 2 Stark. R. 348 ; Woodward v.
Winship, 12 Pick. R. 430 ; Wintle v. Crowther, 1 Cromp. & Jerv. 316 ;
Bank of Rochester «. Bowen, 7 Wend. R. 158 ; Boyd v. Plumb, 7 Wend.
R. 309.
2 Bank of Columbia v. Patterson's Admin. 7 Cranch, R. 299 ; Bank of
the U. Siates v. Dandridge, 12 Wheat. R. 64, 67-75; Beverley v. The
Lincoln Gas Light & Coke Company, 6 Adolp. & Ellis, 829; Church v.
The Imperial Gas Light & Coke Company, 6 Adolp. & Ellis, 846 ; Story
on Agency, § 16. 52, 53 ; Kyd on Bills, p. 32, (3d edit.) ; Arnold v. The
Mayor, &c. of Poole, 4 Mann. & Grang. R. 860 ; Fishmongers' Company
v. Robertson, 5 Mann. & Grang. R. 131. Upon this point, it does not
seem necessary here to cite the authorities at lar^e. Many of them
will be found collected in Story on Agency, § 52, 53 ; and Bayley on
Bills, ch. 2, § 6, p. 53-68, (5th edit. 1830); Chitty on Bills, ch. 2,
p. 45-72.
3 Chitty on Bills, p. 17-21, (8th edit. 1833) ; Bayley on Bills, ch. 2,
PROM. NOTES. 8
86 PROMISSORY NOTES. [CH. II.
It is sufficient, if it "be implied, as a usual and appro-
priate means to accomplish the objects and purposes of
the charter. 1 Corporations are expressly mentioned in
the Statute of 3 and 4 Anne, ch. 9, respecting Promis-
sory Notes, as persons, who make and indorse negotia-
ble Notes, and to whom such Notes may be made payable.
But where drawing, or indorsing, such Notes is obvious-
ly foreign to the purposes of the charter, or repugnant
thereto, there the act becomes a nullity, and not binding
upon the corporation. 2
§ 75. Having adverted to these preliminary consid-
erations, applicable to persons who are sui juris, and
capable of becoming parties to Promissory Notes, let us
now briefly inquire as to those persons, who are incom-
petent or disabled to become such parties, and as to the
nature and extent and operation of that incompetency
and disability. These may, at least in our law, be re-
§ 7, p. 69, 70, (5th edit. 1830) ; Aspinwall v. Meyer, 2 Sandford, Supe-
rior Ct. N. Y. R. 180.
1 See Broughlon v. The Manchester Water Works Company, 3 Barn.
& Aid. 1, 7 - 11 ; Munn v. Commission Company, 15 John. R. 44.
2 Rrouohton v. Manchester Water Works Company, 3 Barn. & Aid.
1-12; Halstead v. Mayor of New York, 5 Barhour. Sup. Ct. R. 218;
Attorney General v. Life & Fire Ins. Co. 9 Paige, 477 ; Furniss v. Gil-
christ, 1 Sandford, Sup. Ct. N. Y. R. 57; Chitty on Bills, p. 17, (8th
edit. 1833.) Heineccius, speaking upon the subject of partnerships, (So-
cietates,) probably meant to include what we should call quasi corpora-
tions, or joint-stock companies, also. He says : — " Itaque ne societates
quidem, tamquam persons morales, ne^otiationem collybistieam exercere
prohtbentur. Immo, illam exercent quotidie, quamvis alicubi legibus cau-
turn sit, ut omnes et singuli socii nomina sua separation subscribere ogan-
tur." Heinecc. de Camb cap. 5, § 15, p 49, (edit. 1769.) In the foreign
law, at least in some countries, partnerships, using the name of the firm,
may sue and be sued in that firm name. See Story on Partn. $ 221, note
(1); Id. §235, note (5.) See also, 2 Bell, Comm. B. 7, p. 619, 620,
(5th edit.) , Story on Bills, § 79 ; Murray v. East India Company, 5 Barn.
& Aid. 204.
CH. II.] CAPACITY OP PARTIES. 87
duced to four classes. (1.) First, infants or minors ;
(2.) Secondly, married women; (3.) Thirdly, alien
enemies; (4.) And fourthly, persons insane, imbecile,
or non compotes mentis. 1
§ 76. There are, indeed, other persons, who are pro-
hibited, by the local law of particular countries, from
engaging in trade or commerce ; such as ecclesiastical
persons, or clergymen. 2 But then this is understood to
be engaging in trade or commerce for a livelihood, or for
profit. But the prohibition would not seem to extend
to Promissory Notes given by an ecclesiastic in the
course of his own pursuits, as, for example, to pay his
debts, or to improve his estate ; but solely to cases of
secular employments of a purely secular character,
ammo lucri, as, for example, by becoming a merchant, or
banker, or broker, or making, or discounting, or in-
dorsing Promissory Notes, for purposes of profit. 3 Per-
sons professed in religion, such as monks and friars, are,
or at least were, by the Common Law, disabled to con-
tract, for they were deemed dead in the law {civiliter
mortid. y So, by the laws of some States, persons under
guardianship, as spendthrifts or prodigals, or on account
of habitual drunkenness, are deemed incapable of con-
tracting. 5 But these and other special disabilities of a
1 Many of the doctrines and illustrations applicable to these disabilities,
are directly taken from the text of Story on Bills of Exchange, ^ 81 - 106,
as containing a full and correct statement of the law on the subject.
2 Hall v. Franklin, 3 Mees. & Wels. 259.
3 See Story on Bills, § 82, 83, and the authorities there cited ; Pothier,
De Change, n. 27; Heinecc. de Camb. ch. 5, § 2, 8, 14, 17; Chitty on
Bills, ch. 2, p. 16, (8th edit.) ; Com. Dig. Capacity, B. 1, D. 1.
4 Com. Dig. Capacity, B. 1, D. 1 , Hall v. Franklin, 3 Mees. & Wels.
259.
5 See Revised Statutes of Massachusetts, ch. 79, § 13 ; Story on Bills,
§ 88; Pothier on Oblig. n. 50-52. In Story on Bills, §88, 89, it is said :
Ji Within the like predicament, as minors, persons fall, who, by the foreign
88 PROMISSORY NOTES. [CH. II,
similar kind may be passed over, as scarcely within the
scope of a work like the present, which deals with more
general disabilities.
§77. In the first place, then, as to minors, or persons
under twenty-one years of age, who are by our law sig-
nificantly called infants. Contracts made by infants
are either, first, void, or secondly, voidable, or thirdly,
valid. 1 They are void, when they are clearly not for
the benefit of the infant, as, for example, a bond made
with a penalty by an infant. 2 They are voidable, when,
er civil law, are interdicted and rendered incapable of contracting- by rea-
son of prodigality ; for, although such persons know what they do, yet
their consent is not deemed valid ; and they are treated as persons not sui
juris, and as having no reasonable discretion. In some of the American
States, (as we have seen,) a similar rule prevails, as to persons who are
put under guardianship, by reason of their being addicted to habitual drunk-
enness ; and while that guardianship continues, ihey are incapable of mak-
ing any valid contract so as absolutely to mnd themselves thereby. But
although persons who are interdicted by the foreign and civil law from
managing their affairs, by reason of prodigality, are thus incapable of
binding themselves by a contract ; yet they are not, absolutely, incapable
of contracting; for they may, like minors, by contracting without the au-
thority of their tutor, curator, or guardian, oblige others to them, although
not oblige themselves to others. And this is, accordingly, laid down in
the Institutes and Digest. Namque placuit meliorem conditionem licere
eis facere, etiam sine tutoris auctoritate. Is, cui bonis interdictum est,
stipulando sibi acquirit. The reason is, that the power of tutors, curators,
and guardians is established in favor of minors and interdicted persons, and
their assistance is necessary only for the interest of the persons under their
charge, and from the apprehension of their being deceived ; and, conse-
quently, such assistance becomes superfluous, when, in fact, they make
their condition better."
1 Story on Bills, § 84; Keane v. Boycott, 2 H. Black. 511, 514, 515;
Com. Dig. Enfant, B. 3, 5, 6, C. 1 to 4 ; Id. C. 9 ; Holmes v. Blogg,
8 Taunt. 35; Id. 508; Wood v. Fenwick, 10 Mees. & Wels. 195; Baker
v. Lovett, 6 Mass. R. 78, 80; Vent v. Osgood, 19 Pick. R. 572 ; 1 Black.
Comm. 463-467; Tucker v. Moreland, 10 Peters, R. 58 ; Fonda v. Van
Home, 15 Wend. R. 631.
2 Ibid. ; Com. Dig. Enfant, C. 1 ; Oliver v. Houdlet, 13 Mass. R. 237;
Vent v. Osgood, 19 Pick. 572.
CH. II.] CAPACITY OF PARTIES. 89
tliey are or may be for his benefit, according to circum-
stances, as, for example, a lease of his lands rendering
rent. 1 They are valid, when they are made for a con-
sideration, and upon an occasion, which the law sanctions
and approves; as, for example, for necessaries for him-
self and his family (if he have one) suitable to his rank
and degree. 2
§ 78. By our law, an infant has not a capacity abso-
lutely to bind himself by a Promissory Note, as maker,
or as indorser, in the course of trade ; for he is not at
liberty to engage in trade. 3 Nor would a Promissory
Note given by him for necessaries be absolutely binding
upon him, when it is negotiable ; or even (as it should
seem) if not negotiable, since he cannot bind himself to
pay even for necessaries any specific sum. 4 The ground
of this doctrine seems to be, that in cases of negotiable
Notes, the infant, if bound at all to the indorsee, must be
bound for the entire sum stated in the Note ; and if the
instrument be not negotiable, it is against the policy of
the law to bind him to pay any fixed certain sum, where
1 Ibid. ; Com. Dig. Enfant, B. 3 C. 3 ; Whitney v. Dutch, 14 Mass.
R. 457, 462; Stone v. Dennison, 13 Pick. R. 1; Reed v. Batchelder,
1 Mete. R. 559 ; Wood v. Fenwick, 10 Mees. & Wels. 195.
2 Ibid. ; Com. Dig. Enfant, C. 5 ; Burghart v. Hall, 4 Mees. & Wels.
727. -
3 Story on Bills, § 84, and authorities there cited ; Chitty on Bills, ch. 2,
p. 21, 22, (8th edit.) ; Bayley on Bills, ch. 2, § 2, p. 44,45, (5lh edit.) ;
Warwick v. Bruce, 2 Maule & Selw. 205, 209.
4 Story on Bills, § 84, and authorities there cited ; Gibbs v. Merrill,
3 Taunt. R. 307; Swasey v. Vanderheyden, 10 John. R. 33; William-
son v. Watts, 1 Camp. R. 552 ; Jones v. Darch, 4 Price, R. 300 ; True-
man v. Hurst, 1 Term R. 40 ; Chitiy on Bills, ch. 2, p. 21, 22, and note
(edit. 1833.) But see Com. Dig. Enfant, B. 5 ; Bayley on Bills, ch. 2,
§ 1, p. 44, 45, (5th edit.) ; 2 Kent, Comm. Lect. 31, p. 235, (5th edit.) ;
Everson v. Carpenter, 17 Wend. R. 419.
8*
90 PROMISSORY NOTES. [CH. II,
the nature of the contract ought to leave open the whole
inquiry as to the sufficiency of the consideration. 1 But,
whether a Promissory Note given by an infant, either
negotiable or not, is void, or is only voidable, is a matter
upon which the authorities present no inconsiderable
diversity of opinion. 2 The weight of the modern au-
thorities seems, however, greatly to preponderate in
favor of holding Promissory Notes, given or indorsed by
an infant, voidable only, and therefore capable of being
ratified after the party comes of age. 3
§ 79. But although an infant cannot bind himself ab-
solutely as the maker of a Promissory Note, there is no
doubt, that he may be the payee thereof, since it cannot
but be for his benefit, if the consideration therefor does
not move from himself, but from some third person ; or if
it be for a debt justly due to himself, as for labor and
1 Chitty on Bills, ch. 2, p. 21, 22, and note, (8th edit.) ; Swasey v.
Adm'r of Vanderheyden, 10 John. R. 33; Stone v. Dennison, 13 Pick,
R. 1. But see Reed v. Batchelder, 1 Mete. R. 559; Goodsell v. Myers,
3 Wend, R. 479.
2 See the cases cited in 2 Kent, Comm. Lect. 31, p. 235, note; Story
on Bills, § 84. Mr. Chancellor Kent, in summing up the doctrine, says:
"It is held, that a negotiable Note, given by an infant, even for necessa-
ries, is void ; and his acceptance of a Bill of Exchange is void ; and his
contract as security for another is absolutely void ; and a bond, with a pe-
nalty, though given for necessaries, is void. It must be admitted, how-
ever, that the tendency of the modern decisions is in favor of the reason-
ableness and policy of a very liberal extension of the rule, that the acts
and contracts of infants should be deemed voidable only, and subject to
their election when they become of age, either to affirm or disallow them.
If their contracts were absolutely void, it would follow as a consequence,
that the contract could have no effect, and the party contracting with the
infant would be equally discharged."
3 Bayley on Bills, ch. 2, § 2, p. 45, 46, (5lh edit.) ; Chitty on Bills,
ch. 2, p. 23, (8th edit.) ; Story on Bills, § 84 ; 2 Kent, Comm. Lect. 31,
p. 235, 236, (5th edit ) ; Gibbs v. Merrill, 3 Taunt. 307 ; Hunt v. Massey
5 Barn. & Adolp. 902.
CH. II.] CAPACITY OF PARTIES. 91
services. 1 However, it is quite a different question,
whether an infant can personally receive payment of
such a Note, made payable to himself or order, or
whether it be payable to his guardian only. The latter
would seem to be the true rule. 2
§ 80. Another inquiry naturally arising under this
head is, what is the effect of an indorsement made by
an infant, who is the payee or indorsee of a Note ? It
has been already suggested, 3 that he cannot charge
himself personally with any liability in virtue of any
such indorsement ; and it is very clear, that every such
indorsement is voidable by him. 4 But a more important
point is, whether the person, who takes by the indorse-
ment under him, acquires thereby any title to the Note
against any of the antecedent parties thereto ; in other
words, whether the transfer by the infant is operative
in favor of the indorsee, so that the latter may receive
or enforce payment thereof from any of the antecedent
1 Story on Bills, § 85; Chitty on Bills, ch. 2, p. 24, (8th edit.) ; Kyd
on Bills, oh. 2, p. 30, (3d edit.) ; Bayley on Bills, ch. 2, § 2, p. 4fi, (5th
edit.) ; Nightingale v. Withington, 15 Mass. R. 272 ; Holhday v. Atkin-
son, 5 Barn. & Cressw. 501.
2 Bayley on Bills, ch. 2, § 2, p. 46, note 7, (5th edit.) Mr. Bayley
says : " See Pothier, pi. 166, who observes, that payment to an infant will
be no discharge of the debtor, unless it appear that the payment were ben-
eficial to the infant ; if the money were applied to his advantage, the pay-
ment will be good ; if not, as where the infant squanders it, the party
paying will not be discharged. So money lent to an infant for necessaries
if duly applied, may in equity be recovered from him. Marlow v. Pitfield,
1 P. Williams, 558. Though it is otherwise at law. 1 Salk. 279, 386.
But if an executor pay a legacy to an infant, which the infant's father ob-
tains and dissipates, the executor will be answerable to the infant. Phil-
lips v. Paget, 2 Atk. 80. See also Pothier on Obligations, part 3, ch. 1,
art. 2, § 1, pi. 504, and § 2."
3 Ante.
4 Bayley on Bills, ch. 2, § 1, 2, p. 44, 45, 46, (5th edit.) ; Chitty on
Bills, ch. 2, p. 22, 23, (8th edit.) ; Story on Bills, § 85.
92 PROMISSORY NOTES. [CH. IL
parties, and give a good discharge therefor. It seems
now well settled, that the indorsee, by such transfer and
indorsement, acquires a good and valid title to the Note
against every other party thereto, except the infant,
since it is not a void, but a voidable, title only. 1 The
infant may indeed avoid it, and intercept the payment
to the indorsee, or, by giving notice to the antecedent
parties of his avoidance, furnish to them a valid defence
against the claim of the indorsee. But, until he does
so avoid it, the indorsement is to be deemed, in respect
to such antecedent parties, as a good and valid transfer. 2
§ 81. In some respects the foreign law differs from
ours, as to the disabilities of persons, who are minors or
infants. Minors are not, by the foreign law, positively
incapable of making contracts, provided the contracts
are beneficial to them. But ail contracts, made by
them are liable to be rescinded; and the minors are
entitled to be reinstated in their original rights, if their
contracts are injurious to them. 3 Contracts by way of
Bills of Exchange and Promissory Notes, are generally
deemed injurious to them. And, hence, it should seem,
that minors incur no absolute responsibility, and are
incapable of binding themselves, either as makers or
indorsers of Promissory Notes, or as drawers, or drawees,
or indorsers, of Bills of Exchange. But, in favor of
commerce, inasmuch as minors are permitted to engage
in it, an exception is made of minors who are mer-
i Ibid.
2 Ibid. ; Grey v. Cooper, 3 Dong. R. f,5 ; Taylor v. Crolcer, 4 Esp. R.
187; Jones v. Darch, 4 Price, R. 300; Nightingale v. Wilhington, 15
Mass. It. 272. See Drayton v. Dale, 2 Barn. & Cressw. 293, 299 ; Pitt
v. Chappelow, 8 Mees. & Wels. 616 ; Burrill v. Smith, 7 Pick. R. 291.
See also, Braithwaite v. Gardiner, 8 Adolph. & Ellis, N. S. 473.
3 Polhier on Oblig. n. 52.
CH. II.] CAPACITY OF PARTIES. 93
chants ; and they may become parties to, and hind
themselves by Bills of Exchange and Promissory Notes,
in their business and character as merchants. Thus,
Hemeccius says : Contra, non obscurum est, rigori cambi-
ali locum non esse adversus imjmberes, et minorennes ; Mo-
rum enim cambia plane nullius momenti sunt; his vero Icesis
competit beneficium restitutionis in integrum. Excepti tamen
sunt minorennes, qui mercaturam exercent, quippe, qui in
rebus ad mercaturam pertinentibus ne jure quidem communi
in integrum restituuntur. 1
§ 82. The same rule, with similar exceptions, has
prevailed in France from a very early period. It is ex-
pressly recognized in the Ordinance of 1673, (tit. 1,
art. 6;) 2 and it has been since incorporated into the
modern Codes of France. 3 The Civil Code declares,
that minors are incapable of contracting ; but that they
cannot, on account of their incapacity, impeach their
contracts, except in cases provided for by law ; and
among these cases are those, where the contract is to
their injury. 4 But, under certain limitations, minors
are permitted to engage in commerce ; and when they
are so engaged, their contracts, made in the course of
their business, bind them. 5 And, in an especial manner,
Promissory Notes and Bills of Exchange drawn, in-
1 Heinecc. de Camb. cap. 5, § 3, 4, 6 ; Story on Bills of Exchange,
§86.
2 Jousse, Sur L'Ord. 1673, tit. 1, art. 6, p. 10, (edit. 1802) ; Pothier,
De Change, n. 28 ; Pothier, on Oblig. n. 49, 52.
3 Code Civil of France, art. 1124, 1125, 1312; Code of Comm. art. 114;
Pothier, De Change, n. 28 ; Locre, Esprit de Comm. Tom. 1, Liv. 1, tit.
8, art. 114, p. 356.
4 Code Civil of France, art. 1124, 1125, 1312; Id. art. 483-487; Par-
dessus, Droit Comm. Tom. 1, art. 56-62.
5 Code Civil of France, art. 487 ; Pardessus, Droit Comm. Tom. 1,
art. 56-62.
94 PROMISSORY NOTES. [CH. II.
dorsed, or accepted by them, in their commercial ne-
gotiations, will he obligatory upon them. 1 But Pro-
missory Notes and Bills of Exchange drawn, indorsed,
or accepted by minors, who are not merchants or bank-
ers, are, by the Code of Commerce, declared to be
void in respect to them; and, therefore, the remedial
justice thereon is not now confined to cases, where the
contract, created by the Bill or Note, is injurious to
them. There is a positive and absolute prohibition of
their binding obligation in all cases. 2 This prohibition,
however, does not extend beyond the protection of the
minor himself; and, therefore, the Bill or Note will bind
all the other parties to it, not only in favor of the minor,
but also, in respect to each other. 3
§ 83. Within the like predicament as minors, persons
fall, who, by the foreign or civil law, are interdicted,
and rendered incapable of contracting, by reason of
prodigality ; for, although such persons know what they
do, yet their consent is not deemed valid ; and they are
treated as persons not sui juris, and as having no rea-
sonable discretion. 4 In some of the American States
(as we have seen) a similar rule prevails, as to persons
who are put under guardianship, by reason of their
being addicted to habitual drunkenness ; and while that
guardianship continues, they are incapable of making
any valid contract, so as absolutely to bind themselves
thereby. 5
1 Ibid.
2 Code de Comm. art. 112 ; Locre, Esprit de Comm. Tom. 1, Liv. 1, tit.
8, § 1 , art. 114, p. 356-360 ; Pardessus, Droit Comm. Tom. 1, art. 56 - 62.
3 Locre, Esprit de Comm. Tom. 1, Liv. 1, tit. 8, § 1, art. 112, p. 360 ;
Pothier on Oblig. n. 52 ; Story on Bills of Exchange, § 87.
4 Pothier on Oblig. n. 50-52.
5 Ante, § 76, note ; Story on Bills of Exchange, § 88.
CH. II.] CAPACITY OP PARTIES. 95
§ 84. But, although persons who are interdicted by
the foreign and civil law from managing their affairs,
by reason of prodigality, are thus incapable of binding
themselves by a contract ; yet they are not absolutely
incapable of contracting ; for they may, like minors, by
contracting without the authority of their tutor, curator,
or guardian, oblige others to them, although not oblige
themselves to others. And this is, accordingly, laid
down in the Institutes and Digest. Namque placuit me-
liorem conditionem licere eis facere, etiam sine tutoris ancto-
ritate} Is, cai bonis interdictmn est, stipulando sibi acquirit?
The reason is, that the power of tutors, curators, and
guardians is established in favor of minors and inter-
dicted persons, and their assistance is necessary only for
the interest of the persons under their charge, and from
the apprehension of their being deceived, and conse-
quently, such assistance becomes superfluous, when, in
fact, they make their condition better. 3
§ 85. Secondly, as to married women. By the law
of England and America a married woman is incapable,
in any case, of becoming a party to a Bill of Exchange,
so as to charge herself with any obligation whatsoever,
ordinarily arising therefrom. 4 This results from her
general disability to enter into any contract under the
Common Law ; for, during the marriage, her very being,
or legal existence, as a distinct person, is suspended, or,
at least, is incorporated and consolidated into that of
1 Inst. Lib. 1, tit. 21.
2 Die. Lib. 45, tit. 1, 1. 6 ; Ante, § 76, note.
3 Ibid. ; Poihier on Oblig. n. 52 ; Story on Bills of Exchange, § 89.
4 Bayley on Hills, ch. 2, § 3, p 47, 48, (5th edit. 1830) ; Clmty on
Bills, ch 2, p 24, (8th edit. 1S33) ; Id ch. 6, p. 235; Edwards v. Davis,
16 John. R. 2S1 ; Cora. Dig. Baron % Feme, Q,
96 PROMISSORY NOTES. [CH. II.
her husband. 1 There are certain exceptions, recognized
by Courts of Equity, and by the custom of London,
which it is unnecessary to advert to, since they have no
manner of application to the ordinary doctrines respect-
ing Promissory Notes. 2 It will, generally, make no
difference, as to this disability of a married woman, at
the Common Law, to bind herself by any obligation, as
a party to a Promissory Note, that she is, at the time,
living separate and apart from her husband ; 3 or, that
she has a separate maintenance secured to her; 4 or,
that she has eloped, and is living notoriously in a state
of adultery; 5 or, even that she is separated from her
husband by a decree of divorce a mensd et thoro ; for
nothing but a divorce a vinculo matrimonii, will restore
her ability. 6
1 Black. Comm. 442; 2 Story on Eq. Jurisp. § 1367; Bayley on Bills,
ch. 2, § 3, p. 47, 48, (5th edit. 1830) ; Caudell v. Shaw, 4 Term R. 361 ;
Co. Litt. 132 b, 133 a; Com. Dig. Baron <$■ Feme, D. Q.
2 See 2 Story on Eq Jurisp. § 1367 - 1403 ; Chitty on Bills, ch 2, § 1,
p. 24, 25, (8th edit. 1833) ; Caudell v. Shaw. 4 Term R. 361 ; Beard v.
Webb, 2 Bos. & Pull. 93 ; Stewart v. Lord Kirkwall, 3 Madd 387. In
equity, a married woman may contract with reference to her own property,
secured to her separate use; and, therefore, she may accept a Bill of Ex-
change; and the same may become payable out of her separate property,
although she cannot, otherwise, bind herself, personally, for the debt. —
Stewart v. Lord Kirkwall, 3 Madd. R. 387 ; 2 Story on Eq. Jurisp.
§ 1397; Francis v. Wigswell, 1 Madd. R. 258; Aylett v. Ashton, 1 Mylne
& Craig, 105, 111 ; Owens v. Dickenson, 1 Craig & Phillips, R. 48;
Gardner v. Gardner, 22 Wend. R. 526.
3 Marshall v. Rutton, 8 Term R. 545 ; Bayley on Bills, ch. 2, $ 3, p. 48,
(5th edit. 1830) ; Chitty on Bills, ch. 2, $ 1. p. 24, 25, (8th edit. 1833) ;
Hatchett v. Baddely, 2 W. Black. 1079 ; Lean v. Schutz, 2 W. Black.
1 195, 1 196 ; Hyde v. Price, 3 Ves. jr. 443.
4 Ibid. 5 Ibid.
6 Ibid. ; Co. Litt. 133 a; Lewis v. Lee, 3 Barn. & Cressw. 291 ; Faith-
oine v. Blaquire, 6 M. & Selw. 73. In Massachusetts, a different rule
prevails ; for there, under the statutes allowing a divorce, a mensa et tlioro,
it has been held, that, although after a decree of such a divorce, the hus-
CH. II.] CAPACITY OF PARTIES. 97
§ 86. There are, indeed, some exceptions to the gene-
ral rule, created by the Common Law, which stand upon
peculiar grounds, and are quite consistent with its ap-
band's right to reduce into possession choses in action, which belonged to
his wife, during the coverture, and prior to the divorce remains ; yet, after
such divorce, she is to be treated as a feme sole, in respect to property,
subsequently acquired on debts contracted by her. Dean v. Eichmond,
5 Pick. R. 461. Upon that occasion, it was admitted that the statute did
not directly apply to the case. But Mr. Chief Justice Parker, in deliver-
ing the opinion of the Court, said: — "But the question, which alone
affects the present action, in regard to the capacity of the plaintiff to sue,
appears not to have been settled, and that is, the effect of a divorce, a
mensa et thoro. Such a divorce does not dissolve the marriage, though it
separates the parties, and establishes separate interests between them. By
our statute, the wife, after such a divorce, is not only free from the control
of the husband, but all her interest in real estate is restored to her ; ali-
mony is allowed her out of the estate of her husband ; and she is left to
procure her own maintenance by her own labor, where the husband is
unable to afford any alimony ; which is the case in most instances, of di-
vorce of this nature. In addition to these burdens, she frequently has to
support young children, without any means but her own industry. Shall
she not maintain an action, even against her husband for alimony, which,
though able, he may refuse to pay ? May she not sue those who trespass
upon her lands, or the tenants who may withhold the rent, or for the earn-
ings of her labor, or the specific articles of property she may have pur-
chased with the savings of her alimony, her rents, or the rewards of her
labor? If not, the law, instead of protecting her from the oppression and
abuse of power of the husband, has merely released him from an incon-
venient connection, reserving to him the right to deprive her of all comfort
and support. If she must join him in any action, he may release it ; he may
receive her rents, and discharge her tenants ; he may seize all her neces-
sary articles of furniture and appropriate them to himself; and he may
intercept the little fruits of her industry which are absolutely necessary
for her support. If the Common Law allows all this, and there is no
relief, except by application to a Court of Equity, the Common Law is,
indeed, most impotent ; and where there is no Court of Equity, as there
is not with us to these purposes, the system is most iniquitous. But it is
not so. The Common Law only prohibits actions by women, who have
husbands alive, whose rights are not impaired by law, but by compact
between them, the law recognizes no authority to make such compacts.
Where the law itself has separated them and established separate interests
and separate property, it acknowledges no such absurdity, as to continue
prom, notes. 9
98 PROMISSORY NOTES. [CH. IL
plication to ordinary cases. Thus, for example, if the
husband has abjured the realm, or if he is deemed, in
contemplation of law, to be civilly (although not natur-
ally) dead, as, if he is, by a judicial sentence, or other-
the power of the husband over every thing but the person of the wife.
No case appears in the English books, and without doubt, because the
interests of the wife, so situated, may be taken care of in Chancery. In
Bac. Abr. Baron Sf Feme, M., the editor, in the margin, puts the quaere,
whether a woman, divorced, a rnensa. et thoro, may not be sued without
her husband ; which is enough to show, that, until his time, there had
been no decision to the contrary, and I do not find that there has been any
since. In a recently published book, which I trust, from the eminence of
its author, and the merits of the work, will soon become of common refer-
ence in our Courts, (Kent's Commentaries, Vol. II. p. 136,) the learned
author, after tracing the English authorities upon the subject of liability
of married women, living separate, and having a maintenance, says : — ' I
should apprehend, that the wife could sue and be sued, without her hus-
band, when the separation between the husband and wife was, by the act of
the law, and that takes place not only in the case of a divorce, a mensa. et
thoro, but also in the case of imprisonment of the husband, as a punish-
ment for crimes. Such a separation may, in this respect, bg equivalent to
transportation for a limited time ; and the sentence, which suspended the
marital power, suspends the disability of the wife to act for herself, be-
cause she cannot have the authority of her husband, and is necessarily
deprived of his protection.' So far as this opinion relates to the case of
divorce, we fully concur with him, and are satisfied, that, although the
marriage is not, to all purposes, dissolved by a divorce, a mensa et thoro,
it is so far suspended, that the wife may maintain her rights by suit, whe-
ther for injuries done to her person or property, or in regard to contracts,
express or implied, arising after the divorce, and that she shall not be
obliged to join her husband in such suit; and, to the same extent, she is
liable to be sued alone, she being, to all legal intents, a feme sole, in
regard to subjects of this nature. Such, however, is not the law of Eng-
land, it having been recently decided, that coverture is a good plea,
notwithstanding a divorce, a mensa. et thoro. Lewis v. Lee, 3 Barn. &
Cressw. 291. But the difference in the administration of their law of di-
vorce and ours, and the power of the Court of Chancery there to protect
the suffering party, will sufficiently account for the seeming rigor of their
Common Law on this subject. If the husband is not liable for the'debts
of the wife, after a divorce, a mensa, the chief reason for denying her the
ibht to sue alone fails." 5 Pick. R. 465-467,
CH. II.] CAPACITY OF PARTIES. 99
wise, banished, or transported for life, or for a term of
years, or if he has, by a religious profession, renounced
civil life, the disability of the wife is suspended during
that period, and her capacity to contract is restored. 1
So, a married woman, resident in any country, whose
husband is an alien and never has been in that country,
has been held to be restored to the like capacity ; 2 and,
a fortiori, the rule will apply, if he is an alien enemy. 3
§ 87. With these exceptions, and others, which stand
or may stand, upon analogous grounds, the general rule
prevails, that married women cannot bind themselves,
personally, by contracts, to third persons ; and, conse-
quently, they cannot bind themselves, as parties to any
Promissory Note, either as makers, or as indorsers.
But it by no means follows, that other parties may not
be bound to them by, and under, such instruments, and
that they may not, sub modo, possess or pass a title
thereto, which shall be effectual between other persons
and parties. They may certainly act as agents of third
persons, in drawing and indorsing Promissory Notes ; 4
and they may bind their own husbands, as makers, or
indorsers, if they act by their express authority, or with
their implied consent and approbation. Thus, for ex-
ample, the wife may draw or indorse a Promissory Note
i Hatchets. Baddeley, 2W. Black. 1079 ; Marshall v. Rutton, 8 Term
R. 545 ; Bayley on Bills, ch. 2, $ 3, p. 47, 48, (5th edit. 1830) ; Chitty
on Bills, ch. 2, § 1, p. 24, 25, (8th edit. 1833) ; Bayley on Bills, ch. 2,
§ 3, p. 47, (5th edit.) ; Sparrow v. Carruthers, cited 1 Term R. 6; Co.
Litt. 133 a, and Harg. note 3 ; Story on Partn. § 10 ; Carrol v. Blencow,
4 Esp. R, 27 ; Newsome v. Bowyer, 3 P. Will. 37.
2 Kay v. Duchess de Pienne, 3 Camp. R. 123 ; Gregory v. Paul, 15
Mass. R. 31. See De Gaillon v. L'Aigle, 1 Bos. & Pull. 357 ; Abbott v.
Bayley, 6 Pick. R. 89.
3 Derry v. Duchess of Mazarine, 1 Ld. Raym. 147.
4 Story on Agency, § 7, and the authorities there cited.
100 PROMISSORY NOTES. [CH. II,
in the name of her husband, [or even in her own name, 1 ]
with his express or implied consent. 2 On the other
hand, if a Note be made payable, or indorsed, to a mar-
ried woman, or her order, whose husband is under no
civil incapacity, it becomes, immediately, by operation
of law, payable to the husband or his order ; 3 and he
may, at his election, indorse it, or negotiate it, or sue
upon it, in his own name ; 4 or, he may sue upon it in
the joint names of himself and his wife ; 5 or he may
allow her to indorse, or negotiate it in her own name.
And in this last case, it may be declared upon, either,
as indorsed by her husband, or in her own name with
his consent ; and thus a good title may be acquired by
the indorsee against the husband, as well as against the
other parties to the Note. 6
§ 88. Promissory Notes, drawn or indorsed by the
wife before marriage, are binding upon her after the
marriage, and both the husband and wife may be sued
therefor by the holder. Promissory Notes, made before
1 Lindus v. Brodwell, 5 Manning, Granger & Scott, 583.
2 Bayley on Bills, ch. 2, § 3, p. 48, 49, (5th edit. 1830) ; Smith v. Ped-
ley, cited ibid.
3 Bayley on Bills, ch. 2, $ 3, p. 48, 49, (5th edit. 1830) ; Arnolds.
Revoult, 1 Brod. & Bing. R. 443; Philliskirk v. Pluckwell,2 M. & Selw.
393 ; Draper v. Jackson, 16 Mass. R. 480 ; Commonwealth v. Manley,
12 Pick. R. 173 ; Russell v. Brooks, 7 Pick. R. 65 ; Richards v. Richards,
2 Barn. & Adolp. 447.
4 Ibid. ; Burrough v. Moss, 10 Barn. & Cressw. 558; Mason v. Mor-
gan, 2 Adolp. & Ellis, 30.
5 Ibid. ; Richards v. Richards, 2 Barn. & Adolp. 447.
6 Bailey on Bills, ch. 2, § 3, p. 47, 48, (5th edit. 1830) ; Chitty on Bills,
ch. 2, § 1, p. 25-27, (8th edit. 1833) ; Id. ch. 6, p. 225; Barlow v. Bish-
op, 1 East, R. 432 ; Cotes v. Davis, 1 Camp. R. 485 ; Prestwich v. Mar-
shall, 4 Carr. & Payne, 594 ; S. C. 7 Bing. R. 565 ; Burrough v. Moss,
10 Barn. & Cressw. 558 ; Mason v. Morgan, 2 Adolp. & Ellis, 30.
CH. II.] CAPACITY OF PARTIES. 101
marriage, [or during marriage, 1 ] and payable to the wife
or her order, become, like other choses in action, the
property of the husband, if he reduces them into pos-
session during the coverture. 2 But, if they are not so
reduced into possession, and the wife survives him, she
will be entitled to them, in right of her survivorship. 3
On the other hand, if he survives her, and they are not
reduced into possession before her death, then her per-
sonal representatives will be entitled to sue for them ;
but the husband will be entitled to the proceeds, when
recovered, in right of his survivorship. 4 The same doc-
trine will apply throughout as to Promissory Notes, and
other choses in action, made and given to the wife
after the coverture, with this distinction applicable to
such notes and other choses in action, after the cover-
ture, that the husband does not, by some overt act,
such as bringing an action in his own name, or indors-
ing or assigning them, which are deemed equivalent
to reducing them into possession, elect to hold them
exclusively for his own use, and thus disagree to the
interest of his wife therein. 5
1 Scarpellini v. Atcheson, 7 Adolph. & Ellis, N. S. R. 864; Howard
v. Oakes, 3 Welsby, Hurlstone & Gordon, R. 136.
2 Richards v. Richards, 2 Barn. & Adolp. 447 ; Co. Litt. 3515 ; Gar-
forth v. Bradley, 2 Ves. 675 ; Betts v. Kimpton, 2 Barn. & Adolp. 273 ;
Com. Dig. Baron 4- Feme, E. 3 ; McNeilage v. Holloway, 1 Barn. &
Aid. 218 ; Legg v. Legg, 8 Mass. R. 99 ; Howes v. Bigelow, 13 Mass.
R. 384 ; Dean v. Richmond, 5 Pick. R. 461 ; Chitty on Bills, ch. 6, p. 225,
(8th edit. 1833) ; Id. ch. 2, § 1, p. 26, 27.
3 Ibid. ; Com. Dig. Baron <5f Feme, F. 1, 2 ; Draper v. Jackson, 16
Mass. R. 4S0 ; Stanwood v. Stanwood, 17 Mass. R. 57.
4 Betts v. Kimpton, 2 Barn. & Adolp. 273 ; Co. Litt. 351 a, and Mr.
Butler's note ; Cart v. Rees, cited 1 P. Will. R. 381.
5 Richards v. Richards, 2 Barn. & Adolp. 273; Garforth v. Bradley,
2 Ves. 675; Dean v. Richmond, 5 Pick. R. 461; Gaters v. Madeley,
6 Mees. & Wels. 423 ; Chitty on Bills, ch. 6, p. 225, (8th edit. 1833) ;
9*
102 PROMISSORY NOTES. [CH. II.
§ 89. We have already had occasion to state, that
women are, generally, by the French Law, disabled from
Id. ch. 2, § 1, p. 26, 27. In McNeilage v. Holloway, 1 Barn. & Aid.
21S, it was held, that where a Bill of Exchange was made payable to a
feme sole, or her order, before marriage, and she intermarried before the
Note became due, her husband might sue thereon in his own name, with-
out joining his wife, although the latter had not indorsed the Bill. Upon
that occasion, Mr. Justice Bayley said : — " This being a negotiable secu-
rity, the right of action shifts with the possession. Chattels personal vest
absolutely in the husband by marriage. Choses in action do not ; for, in
order to reduce them into possession, it is necessary to join the wife. The
case of a negotiable security is a middle case ; whoever has the instrument
in his possession, and the legal right to it, may sue upon it in his own
name. It differs, in this respect, from a bond, and other securities not ne-
gotiable. By assigning a bond, a right of suing only in the name of the
obligee is conferred. The Bill is payable to the wife, and the effect of the
marriage is not to destroy the negotiability of the instrument. In whom,
then, will the power of indorsing vest? Certainly not in the wife, for her
power to do so is superseded by the marriage ; then it must be in the hus-
band. It may be said that he could not indorse to himself; perhaps not ;
because, in that case, there would be no transfer ; but that must be on the
ground of his having the entire interest in the Bill without indorsement.
We break in upon no principle, therefore, by saying, that this is a species
of property, in the possession of the wife, at the time of the marriage,
which, by the act of marriage itself, vested in the husband." But this
decision is open to much observation ; and, indeed, it is plain, from the
subsequent case of Richards v. Richards, 2 Barn. & Adolp. 447, 453, that
the Court were not entirely satisfied with that case as an authority. It
may, indeed, as to the point, that a Bill is a personal chattel, and not a
chose in action, be deemed entirely overruled by the late case of Gaters v.
Madeley, 6 Mees. & Wels. R. 423, where Mr. Baron Parke said : — ' A
Promissory Note is not a personal chattel in possession, but a chose in ac-
tion of a peculiar nature ; but which has, indeed, been made by statute,
assignable, and transferable, according to the custom of merchants, like a
Bill of Exchange ; yet, still, it is a chose in action, and nothing more.
When a chose in action, such as a bond or Note, is given to a feme covert,
the husband may elect to let his wife have the benefit of it, or, if he thinks
proper, he may take it himself; and if, in this case, the husband had, in his
lifetime, brought an action upon this Note, in his own name,that would have
amounted to an election to take it himself, and to an expression of dissent
on his part, to his wife's having any interest in it. On the other hand, he
may, if he pleases, leave it as it is, and, in that case, the remedy on it sur-
vives to the wife, or he may, according to the decision in Philliskirk v,
CH. II.] CAPACITY OF PARTIES. 103
binding themselves to absolute obligations, as makers or
indorsers of Promissory Notes, or as drawers, indorsers,
or acceptors, of Bills of Exchange, unless they are regu-
lar merchants, and carry on trade as such. 1 And this
disability equally applies, whether they are married or
unmarried, whether they are maidens or widows. A
married woman, therefore, who is not a regular mer-
chant, is equally within the interdiction, whether she is
authorized by her husband to do the act or not ; 2 for
this interdiction is designed for her protection and safety
against the ordinary and summary remedies against the
person, and the property, which Bills of Exchange or
Promissory Notes generally carry with them under the
French Law. 3
Pluckwell, adopt another course, and join her name with his own ; and, in
that case, if he should die after judgment, the wife would be entitled to
the benefit of the Note, as the judgment would survive to her. The only
doubt in this case arose from the observation of Lord Ellenborough, in
McNeilage v. Holloway, that a Promissory Note may be treated as a per-
sonal chattel in possession. Now, in that respect, I think there was a
mistake, and an incorrect expression used ; but it was unnecessary for his
Lordship to lay down such a doctrine, in order to decide the case then be-
fore him. In fact, the decision in the subsequent case of Richards v. Rich-
ards, has qualified that position. In that case, the Court of King's Bench,
said, that a Promissory Note was, in the ordinary course of things, a chose
in action, and that there was nothing to take it out of the common rule that
choses in action, given to the wife, survive to her after the death of her hus-
band, unless he has reduced them into possession. The case of Nash v.
Nash, is also an authority in favor of the position, that it survives to the
wife ; and, although that case was decided before McNeilage v. Holloway
it does not appear to have been cited in the latter case. I am of opinion
that the Note must be considered as having survived to the wife, and her
executor was, therefore, the proper person to sue.' " See also, Com. Dig.
Baron $ Feme, V. W. X. ; Morse v. Earl, 13 Wend. R. 271.
1 Ante, § 60 ; Story on Bills, § 73 ; Locre, Esprit du Code de Coram.
Tom. 1, tit. 8, § 1, art. 113, p. 351 -355 ; Code de Comm. art. 113.
2 Ibid.
3 Ibid. But see Pothier, De Change, n, 28; Sautayra, Code de Comm.
art. 113, p. 78, 79.
104 PROMISSORY NOTES. [CH, II.
§ 90. We are not, however, to understand (as has
been already suggested) from this statement, that, if an
unmarried woman, or a married woman, with the au-
thority and consent of her husband, not being a mer-
chant, should sign, or indorse, or accept, a Bill of Ex-
change or Promissory Note, it would, by the French
Law, be an absolute nullity. But we are only to under-
stand, that it will be reduced to the case of a simple
promise on her part, which, in that law, imports, or may
import, very different rights, remedies, and obligations. 1
For unmarried women, and married women, with the
consent of their husbands, m^ij enter, under ordinary
circumstances, into a valid contract. The interdiction
only applies to prevent women, whether married or un-
married, from incurring the ordinary responsibilities of
drawers, indorsers, or acceptors, and from being sub-
jected to the ordinary remedies, to enforce the rights of
the holder, against persons in that predicament. But
this interdiction does not render a married woman* in-
competent to make Promissory Notes, or to draw, in-
dorse, or accept Bills of Exchange, in the name of her
husband, with his authority and consent ; for, then, she
is not personally bound, as such a Bill, or Note, is treated
as his personal contract, through the instrumentality of
his agent. 2
§ 91. But married women, who, with the consent of
their husbands, carry on trade separately, as regular
merchants, may bind themselves as parties to Promissory
Notes and Bills of Exchange, in the course of their
business ; but, as they cannot so engage in business
1 Story on Bills, § 73, note.
2 Locre" Esprit du Code de Comm. Tom. 1, tit. 8, § 1, art. 113, p. 354 ;
Pothier, De Change, n. 28.
*.
CH. II.] CAPACITY OF PASTIES. 105
without such consent, it follows, that they cannot con-
tract any valid engagements, even as merchants, where
the consent of the husband is withheld, or he interdicts
the engagement in trade. 1 But, although a Bill of Ex-
change, or Promissorv Note, drawn under the circum-
stances above stated, may not be binding personally
upon the woman herself, either as a drawer, or indorser,
or acceptor ; yet, as between the other parties to it, it
may be of full force and obligation. Thus, if a Bill be
drawn or indorsed by a woman, under circumstances of
interdiction, still, if accepted, it may be binding between
the indorsee, or other holder, and the acceptor. 2 And,
in like manner, a Promissory Note drawn or indorsed
by a woman under interdiction, will be binding between
the other parties thereto.
§ 92. There seems to be another difference between
our law and that of France, in respect to married wo-
men ; and that is, that as married women, by the French
law, are incapable of contracting with other persons,
without the consent and authority of their husbands,
they cannot oblige other persons thereby to them, any
more than they can oblige themselves to other persons ;
for they cannot, without the authority and consent of
their husbands, contract in any manner, whether the
contract be for their detriment, or for their benefit. 3
And, therefore, a Bill of Exchange, or Promissory Note,
made payable to them, would not be obligatory in their
favor 5 in which respect, the case differs from that of
1 Pardessus, Droit Comm. Tom. 1, art. 63, p, 311, 312; Code de
Comm. art. 45; Code Civil of France, art. 220; Merlin, Repert. Lettre
et Billet de Change, § 3, art. 6, p. 194, 195, (edit. 1827.)
2 Locre, Esprit du Code de Comm. Tom. 1, tit. 8, § 1, art. 113, p. 355,
3 Pothier on Obligations, n. 52.
♦
106 PROMISSORY NOTES. [CH. II.
minors and prodigals under the French Law. 1 But, in
our law, such a Bill or Note would clearly be good in
favor of the husband, who might adopt the act, and sue
upon the Bill or Note in his own name. 2
§ 93. Heineccius informs us, that in the territories of
Brunswick, women are not allowed to deal in Bills of
Exchange ; and in the other German provinces they are
bound only when they exercise the business of merchan-
dise. 3 But if authority is granted to women to carry on
the business of money-brokerage, regularly, they are
not at liberty to engage in exchange, unless under the
guidance of a curator, or other administrator. And
there is no doubt whatsoever, that, if a woman enters
into a contract of exchange for other persons, the con-
tract is invalid. 4 Even when a woman is a merchant,
she is not bound as a party, except to Bills of Exchange,
drawn in the course of her business, as such ; which,
however, will be presumed, unless the contrary is shown. 5 .
The same rule would apply to Promissory Notes made
or indorsed by women, under the like circumstances. 6
§ 94. Thirdly, as to alien enemies. The doctrine is
now very clearly established, that a state of war between
two countries interposes an absolute interruption and
interdiction of all commercial correspondence, inter-
course, and dealing, between the subjects or citizens of
the two countries. 7 It would be utterly incompatible
i Ibid.
2 Story on Bills of Exchange, § 86-89.
3 Heinnec. de Jure Camb. cap. 5, § 5-7.
4 Ibid. 5 Ibid.
6 Story on Bills of Exchange, § 90-98.
7 1 Kent, Comm. Lect. 3, p. 66-69, (5th edit.) ; Potts v. Bell, 8 Term
R. 548 ; Willison v. Patteson, 7 Taunt. R. 439 ; The Indian Chief, 3 Rob.
R. 22; The Jonge Pieter, 4 Rob. R. 79 ; The Franklin, 6 Rob. R. 127;
OH. II.] CAPACITY OF PARTIES. 107
with all the known rights and duties of the parties, to
suffer individuals to carry on friendly and commercial
intercourse with each other, while the governments to
which they respectively belonged, were in open hostility
with other ; or, in other other words, that the subjects
or citizens should be at peace, while the nations were at
war. 1 Upon this ground, the rule is now generally, if
not universally recognized, that all contracts made be-
tween the subjects or citizens of different countries,
which are at war with each other, are utterly void.; or,
as the rule is often briefly expressed, contracts made
with an enemy are void. 2 They are not merely voida-
ble ; but they are, ah origine, void and incapable of being
enforced or confirmed. 3 In this respect, they differ es-
sentially from contracts made between the subjects of
different countries in a time of peace ; for a subsequent
war between the countries does not avoid or extinguish
those contracts ; but only suspends the right to enforce
them in the belligerent countries, by reason of the per-
sonal disability of alien enemies to sue or be sued. As
soon, however, as peace is restored, the right revives,
and these contracts retain or re-acquire all their original
obligation, and may be enforced in the judicial tribunals
The Venus, 4 Rob. R. 355 ; The Carolina, 6 Rob. R. 336 ; Griswold
v. Waddington, 15 John. R. 57; S. C. 16 John. R. 438; The Rapid, 8
Cranch, R. 155 ; The Julia, 8 Cranchf R. 181 ; Scholefield v. Eichel-
berger, 7 Peters, R. 580 ; Ex parte Boussmaker, 13 Ves. 71 ; Antoine v.
Morshead, 6 Taunt. R. 237. The masterly judgment of Mr. Chancellor
Kent, in the Court of Errors, in the case of Griswold v. Waddin<non,
16 John. R. 438, examines, and exhausts the whole learning upon the sub-
ject. There cannot, perhaps, be found, in the judicial annals of our coun-
try, any case, in which the resources of a great mind, acting upon the most
comprehensive researches, have been more eminently or successfully dis-
played.
1 Ibid. 2 Ibid. 3 ibid.
108 PROMISSORY NOTES. [CH. II.
of either country, as the parties then possess, what is
technically called & persona standi injudicio. 1
§ 95. Hence, an alien enemy cannot, flagrante hello,
draw a Bill upon a subject, "belonging to the adverse
country, or indorse a Bill to such a subject, or accept a
Bill drawn by such a subject ; for, in each case, as be-
tween the alien enemies, the contract is treated as utterly
void, and founded in illegal communication, intercourse,
or trade. 2 The same rule applies to the purchase of
Bills drawn on the enemy's country, and the remittance
or deposit of funds there, and the buying or selling of
Exchange there. 3 The same rule also applies to Pro-
missory Notes made or indorsed to, or by, an alien
enemy.
§ 96. But certain exceptions have been allowed, either
as compatible with the principles, or as resulting from
the verv necessities and accidents of war itself. Thus,
a Bill of Exchange, or Promissory Note, drawn or nego-
tiated in favor of any person, competent to sue, would,
doubtless, be upheld, if it was given for the ransom of a
captured ship ; for such a ransom is upheld by the Law
of Nations, as a sacred and inviolable contract, and, if
not prohibited by some statute, would be deemed in a
Court of Admiralty, acting under the Law of Nations,
as entitled to be enforced. 4 So, if a person, who is a
1 1 Kent, Comm. Leet. 3, p. 67-69, (5th edit.) ; Griswold v. Wadding-
ton, 15 John. R. 57 ; S. C. 16 John. R. 438; Potts v. Bell, 8 Term R.
548 ; Willison v. Patteson, 7 Taunt. R. 439 ; Scholefield v. Eichelberger,
7 Peters, R. 580 ; Antoine v. Morshead, 6 Taunt. R. 237 ; Flindt v.
Waters, 15 East, R. 266 ; Ex parte Boussmaker, 13 Ves. 71.
2 Ibid. 3 ibid.
4 See Cornu v. Blackburne, 2 Doug. R. 641 ; Anthon v. Fisher, 2 Doug.
R. 649, note ; Yates v. Hall, 1 Term R. 73 ; Maisonnaire v. Keating,
2 Gallis. R. 325 ; Ricord v. Bettenham, 3 Burr. R. 1734 ; Brandon v.
CH. II.] CAPACITY OF PARTIES. 109
prisoner of war should draw or indorse a Bill, drawn
upon a fellow-subject, resident in his own country, or
should make or indorse a Promissory Note, that Bill or
Note, whether made payable to an alien enemy, or in-
dorsed to him, will be held valid, if it be made or in-
dorsed to the alien enemy, for the purpose of obtaining
necessaries and subsistence for the prisoner. 1 The
ground of this exception must be, that it is in further-
ance of the ordinary duty of every nation, not to suffer
its own subjects to be deprived of the means of support
and maintenance, by the strict application of principles,
intended to guard against other public mischiefs; and
that the allowance of such Bills or Notes for such ob-
jects can have no tendency to promote the interests of
the enemy, or to foster any illegal or injurious commerce
with the enemy.
§ 97. Another exception may fairly be deemed to
exist in cases of cartel ships, where Bills or Notes are
drawn and negotiated in the enemy's country, for pur-
poses connected with the objects of the voyage ; such
as for necessary repairs, provisions, and other supplies.
This class of laws may be presumed to stand upon the
general ground of an implied license from both govern-
ments ; and it does not differ in its principles, from
another class of cases, where there is an express license
for the trade with the enemy, which exempts the party
and the transactions from the taint of illegality, at least
so far as concerns his own country, where the contract
is to be enforced. 2
Nesbitt, 6 Term R. 23 ; Puffendorf, De Jure Nat. et Gent. Lib. 8, cap. 7,
§ 14, and Barbeyrac's note ; Vattel, B. 3, ch. 16, § 264.
1 See Antoine v. Morshead, 6 Taunt. R. 237; Daubuz v. Morshead,
6 Taunt. R. 332. See also, Duhammel v. Pickering, 2 Stark. R. 90 ;
Bayley on Bills, ch. 2, § 9, p. 75, 76, (5th edit. 1830.)
2 Potts v. Bell, 8 Term R. 548.
PROM. NOTES. 10
110 PROMISSORY NOTES. [CH. II.
§ 98. But there is no necessary incompatibility of
duties, or obligations, arising from a state of war, to
prevent a subject of a neutral country, being in the
enemy's country, from making or indorsing a Promissory
Note, or from there drawing, or indorsing, or accepting,
a Bill of Exchange, in favor of one of his fellow-subjects,
or of another neutral ; for in such a case, if the transac-
tion is bond fide, and for neutral or legal objects, there
is no principle upon which it ought to be held invalid. 1
A state of war does not suspend the rights of commerce
between neutrals, or the general obligations of contracts
between persons, who are, in no just sense whatever,
parties to the war, or acting in violation of the duties
growing out of it.
§ 99. And here, again, the principle would seem to
apply, that, although a Promissory Note or a Bill of
Exchange, drawn, indorsed, or accepted, in favor of an
alien enemy, may not be valid between them ; yet, as
between other parties to the Bill or Note, it may have
complete force and obligation ; at least if they are not
parties to any original intended illegal use of it, or have
not participated in such illegal use. Thus, for example,
if a Bill be drawn by an alien enemy upon the subject
or citizen of the adverse country, in favor of a neutral,
it will, subject to the limitation above stated, be good,
in favor of the neutral, against the drawer, and also
against the drawee, if he becomes the acceptor. The
same doctrine will apply to an indorsement of such a
Bill by an alien enemy, in favor of a neutral, although
it might be invalid between the original parties, or be-
1 Houriet v. Morris, 3 Camp. R. 303 ; The Hoffnung, 2 Rob. R. 162 ;
The Cosmopolite, 4 Rob. R. 8 ; The Clio, 6 Rob. R. 67.
CH. II.] CAPACITY OF PARTIES. Ill
tween them and the acceptor ; for there is nothing in
the character of the neutral, which prevents him from
receiving such a Bill, in the course of his own negotia-
tions, or which deprives him of his ordinary character,
or of his perso?ia standi in judicio, to enforce the obliga-
tions created thereby, between him and the other per-
sons, with whom he is dealing. Similar considerations
will apply to cases of Promissory Notes, mutatis mutan-
dis.
§ 100. It need scarcely be added, that the disability
of alien enemies to contract with each other during the
war, is not a doctrine founded in the peculiar municipal
jurisprudence of England and America ; but that it has
its origin and confirmation in the Laws of Nations, and
is approved by the most eminent Publicists, such as
Grotius, and Puffendorf, and Vattel, and Bynkershoek. 1
The same exceptions of cases of positive moral necessity,
such as cases of ransom, are also recognized, as belong-
ing to the general doctrine, upon the ground stated by
Vattel, that, when, by the accidents of war, a subject is
placed in the hands of his enemy, so that he can neither
receive his own sovereign's orders, nor enjoy his protec-
tion, he resumes his natural rights, and is to provide
for his own safety by any just and honorable means.
And hence, he adds, if that subject has promised a sum
for his ransom, the sovereign, so far from having a power
to discharge him from his promise, should oblige him to
perform it. 2
1 Grotius, De Jure Bell, et Pac. Lib. 3, ch. 23, § 5 ; Puffendorf, De
Jure Nat. et Gent. Lib. 8, ch. 7, § 14 ; Vattel, B. 3, ch. 16, § 264 ; Bynk.
Ques. Pub. Jur. B. 1, ch. 3; Heinnec. Exerc. 30, De Jur. Princ. circa
Commerc. § 12, Tom. 2, Pars 2, p. 98, (edit. Genev. 1766.)
2 Vattel, B. 3, ch. 16, $264; Griswold v. Waddington, 16 John. R.
451 ; Story on Bills of Exchange, § 99-105.
112 PROMISSORY NOTES. [CH. II.
§ 101. Fourthly, as to persons insane or imbecile in
mind. A few words will suffice upon the disability of
all persons, in this predicament, to bind themselves as
makers, or inclorsers, of Promissory Notes. 1 This disa-
bility flows from the most obvious principles of natural
justice. Every contract presupposes, that it is founded
in the free and voluntary consent of each of the parties,
upon a valuable consideration, and after a deliberate
knowledge of its character and obligation. Neither of
these predicaments can properly belong to a lunatic, an
idiot, or other person non compos mentis, from age, or im-
becility or personal infirmity. Hence, it is a rule, not
merely of municipal law, but of universal law, that the
contracts of all such persons are utterly void. 2 The
Roman Law, in expressive terms, adopted this doctrine.
Furiosus nullum negotium gerere potest, quia non intelligit,
quod agit. 3
§ 102. We may conclude this part of our subject by
remarking, that, as by the bankruptcy of a party all his
property, including Bills of Exchange, Promissory Notes,
and other negotiable instruments and choses in action
belonging to him, is, under the Bankrupt Law, vested in
1 See Baxter v. Lord Portsmouth, 5 Barn. & Cressw. 170; 2 Black.
Comm. 291, 292; Pitt v. Smith, 3 Camp. R. 33, 34; Chitty on Bills,
ch. 2, $ 1, p. 21, (8th edit. 1833) ; Brown v. Jodrell, 3 Carr. & Payne,
30 ; Sentance v. Poole, 3 Carr. & Payne, 1 ; Peaslee v. Bobbins, 3 Mete.
R. 164.
2 Puffandorf, Law of Nat. and Nat. B. 3, ch. 6, § 3, and Barbeyrac's
note ; Grotius, De Jure Bell, et Pac. Lib. 2, ch. 11, § 4, 5; 1 Fonbl. Eq.
B. 1, ch. 2, § 1, and note (a); Id. § 3 ; 1 Story on Eq. Jurisp. § 222;
Ersk. Inst. B. 3, tit. 1, $ 16; Bell, Comm. B. 2, Pt. 2, ch. 8, p. 132; Id.
B. 3, Pt. 1, ch. 1, p. 294, 295, (5th edit.) ; Peaslee v. Robbins, 3 Mete.
R. 164.
3 Inst. Lib. 3, tit. 20, § 8 ; Dig. Lib. 50, tit. 17, 1. 5, 40, 124 ; Story
on Bills of Exchange, § 106.
CH. II.] CAPACITY OF PARTIES. 113
his assignees, he is no longer able to sue on the same,
or to convey any perfect title thereto by indorsement or
otherwise. Still, however, if he should indorse the same
to any bond fide holder without notice, he would convey
a good title to such holder against all the other par-
ties to the instrument, which may be enforced against
such parties, unless the assignees chose to interfere and
oppose the claim; 1 as, indeed, the bankrupt himself
might, with the consent of the assignees, also enforce
the same in his own name. 2
1 Bayley on Bills, ch. 2, § 4, p. 49, (5th edit.) ; Drayton v. Dale,
2 Barn. & Cressvv. 293; Kitchen v. Bartsch, 7 East, R. 53.
2 Ibid.
10*
114 PROMISSORY NOTES. [CH. III.
CHAPTER III.
RIGHTS; DUTIES, AND OBLIGATIONS OF PARTIES TO PROMIS-
SORY NOTES.
§ 103. Let us next pass to the consideration of the
rights, duties, and obligations of the respective parties
to Promissory Notes. These respect either the Maker,
the Payee, the Transferrer, the Indorser, or the Holder.
We shall postpone to a future page the examination of
the question, what consideration is necessary or suffi-
cient to support a Promissory Note, and between what
parties and under what circumstances it is either neces-
sary, or available, or important. At present it will be
assumed, that the Promissory Note is not open to any
question of this sort, but that a sufficient consideration
exists, and is fully established.
§ 104. In the first place, then, as to the rights, duties,
and obligations of the maker of a Promissory Note.
The rights of the maker are few, and may be briefly
stated. If the Note was originally given for a preex-
isting debt, or for a present consideration, if it was
received as an absolute payment thereof, the original
consideration is extinguished, and no longer is due from
the maker. 1 If it was received as conditional payment
only, then, if duly paid or discharged, the original con-
sideration is equally extinguished. If it is not so duly
1 Bayley on Bills, ch. 9, p. 363 - 369, (5th edit.)
CH. III.] RIGHTS AND DUTIES OP PARTIES. 115
paid or discharged, then the original debt or considera-
tion revives, although suspended in the intermediate
period ; and it may be enforced by an action against
the maker, if he is ready to return the Promissory Note,
and it is not outstanding in the possession of a third
person, or a suit may, at the election of the holder, be
brought against him on the Promissory Note itself. 1 In
general, by our law, unless otherwise specially agreed,
the taking of a Promissory Note for a preexisting debt,
or a contemporaneous consideration, is treated prima facie
as a conditional payment only, that is, as payment only
if it is duly paid at maturity. 2 But, in some of the
American States, a different rule is applied, and, unless
it is otherwise agreed, the taking of a Promissory Note
is deemed prima facie an absolute payment of the pre-
existing debt or other consideration. 3 But in each case,
the rule is founded upon a mere presumption of the
supposed intention of the parties, and is open to expla-
1 Bayley on Bills, ch. 9, p. 363-369, (5th edit.) ; Kearslake v. Mor-
gan, 5 Term R. 513; Dangerfield v. Wilby, 4 Esp. R. 159; Tobey v.
Barber, 5 John. R. 68; New York Stale Bank v. Fletcher, 5 Wend. R.
85 ; Burdick v. Green, 15 John. R. 247 ; Sheehy v. Mandeville, 6 Cranch,
R. 253, 264.
2 Bayley on Bills, ch. 9, p. 363-369, (5th edit.); Puckford v. Max-
well, 6 Term R. 52; Owenson v. Morse, 7 Term R. 64; Bridges v.
Berry, 3 Taunt. R. 130 ; Sheehy v. Mandeville, 6 Cranch, R. 253, 264 ;
Murray v. Gouverneur, 2 John. Cas. 438; Elliot v. Sleeper, 2 N. Hamp.
R. 525 ; Holmes v. De Camp, 1 John. R. 34 ; Putnam v. Lewis, 8 John.
R. 389 ; Bill v. Porter, 9 Conn. R. 23; Van Cleef v. Therasson, 3 Pick.
R. 12; Muldon v. Whitloek, 1 Cowen, R. 290 ; Post, § 404, 438.
3 Bayley on Bills, by Phillips & Sewall, note (y,) p. 337-404, (edit.
1836) ; Hutchins v. Olcutt, 4 Verm. R. 549 ; Hunt v. Boyd, 2 Miller,
Louis. R. 109 ; Thatcher v. Dinsmore, 5 Mass. R. 299 ; Chapman v. Du-
rant, 10 Mass. R. 47 ; Wiseman v. Lyman, 11 Mass. R. 369 ; Maneely v.
McGee, 6 Mass. R. 143 ; Whitcomb v. Williams, 4 Pick. R. 228 ; Var-
ner v. Nobleborough, 2 Greenl. R. 121 ; Descadillas v. Harris, 8 Greenl.
R. 298 ; Wallace v. Agry, 4 Mason, R. 336 ; Post, § 438.
116 PROMISSORY NOTES. [CH. III.
nation and rebutter by establishing, by proper proofs,
what the real intention of the parties was ; and this may
be established not only by express words, but by reason-
able implication from the attendant circumstances. 1
§ 105. It is curious to observe the coincidences of
our law with the Roman Law upon this subject. It
shows, that common sense, in its application to the
every-day transactions of human life, speaks the same
language, and is regulated by the same motives of con-
venience, and policy, and justice, in all civilized coun-
tries, however wide their distance, or remote their ages
from each other. Thus, we are told in the Institutes,
•that the ancient lawyers at Rome held, that a novation
(the substitution of a new debt for an old one, thereby
extinguishing the former, 2 ) arose when a second contract
was intended to dissolve a former. But that it was al-
ways difficult to know with what intent the second obli-
gation was made, and for want of such positive proof,
opinions were founded upon presumptions arising from
the circumstances of each case. This uncertainty gave
rise to a positive Constitution in the Roman Law,
whereby it was declared, that a novation of a former
contract should only take place, when the contracting
parties had expressly agreed, that they contracted with
the intent to create a novation of the former contract ;
and that otherwise the first contract should continue
valid, and the second should be deemed as an accession
to it, so that the obligation of both contracts might re-
i Wallace v. Agry, 4 Mason, R. 336 ; Maneely v. McGee, 6 Mass. R.
143; Watkins v. Hill, 8 Pick. R. 522; Curtis v. Ingham, 2 Verm. R.
287; Hutchins v. Olcutt, 4 Verm. R. 549 ; Torrey v. Baxter, 13 Verm.
R. 452.
2 Pothier on Oblig. by Evans, n. 546 ; Dig. Lib. 46, tit. 2, 1. L
CH. III.] RIGHTS AND DUTIES OP PARTIES. 117
main. Sed cum hoc quidem inter veteres constabat, tunc
fieri novaiionem, cum novandi animo in secundam obliga-
tionem itum fuerat ; per hoc autem dubiam erat, quando
novandi animo videretur hoc fieri ; et quasdam de hoc prcB-
sumptiones alii in aliis casibus introducebant : ideo nostra
processii Constitute, qucs apertissime definivit, tunc solum
novaiionem prions obligations fieri, quoties hoc ipsum inter
contrahentes expressum fuerit, quod propter novaiionem pri-
on's obligationis" convener mit alioqui manere et pristinam obli-
gationem, et secundam ei accedere, ut maneat ex idraque
causa obligatio secundum nostras, Constitittionis definitionem,
quam licet ex ipsius lectione apertius cognoscere. 1 So the
Digest says: Omnes res transire in novaiionem possunt,
quodcunque enim sive verbis contraction est, she non verbis :
novari potest, et transire in verborum obligationem ex qua-
eunque obligaiione ; dummodo sciamus novaiionem ita demum
fieri, si hoc agatur, ut novetur obligatio : cesterum, si non
hoc agatur, duce erunt obUgationes?
§ 106. Another right, in a practical view quite as im-
portant to be understood, is, whether the maker of a
Note has a right to insist, when he is called upon to
pay a Promissory Note at its maturity, that the Note
itself should be produced and be delivered up to him. 3
When the Note is not negotiable, or, if originally nego-
tiable, it is not indorsed, so as to be negotiated, it may
not, strictly speaking, be deemed a matter of much con-
sequence ; since, whoever claims the Note, must claim it
not only under, but in the name of the payee, or his
personal representative ; and hence it may be supposed
that the defence of payment would always be a valid
i Just. Inst. Lib. 3, tit. 30, § 3; Cod. Lib. 8, tit. 42, 1. 8.
2 Dig-. Lib. 46, tit. 2, 1. 2.
3 Chitty on Bills, ch. 9, p. 391, (8th edit.)
118 PROMISSORY NOTES. [CH. III.
and competent defence. But we are to consider, that
the proofs of the payment may disappear by lapse of
time, or by accident, or by the death of witnesses ; and
yet, if the Note be outstanding, it will, prima facie, un-
less barred by the statute of limitations, import a pre-
sent subsisting debt or liability. 1 It is far, therefore,
from being even here, in many cases, a matter of indiffe-
rence ; and there would be no hardship in a rule of law,
which should require, even when the Note is not nego-
tiable, that it should either be given up, or a formal
written receipt given of its being paid, or security given
as an indemnity against a second payment to be required
from the maker. 2 Such, however, is not understood to
1 See Story on Bills of Exchange, § 447-449 ; Post, § 244, 245, 290.
445-450.
2 2 Story on Eq. Jurisp. § 705 ; Ex parte Greenway, 6 Ves. R. 812. —
Mr. Chitty (Chitty on Bills, ch. 8, p. 456, 8th edit.) says, that on pay-
ment of a Bill or Note, it has been considered as doubtful, whether a per-
son paying can insist upon a receipt being given for the payment ; but he
adds, that it should seem that the party is entitled upon payment to de-
mand a receipt. For this last position, he relies on the Statute of 43 Geo.
3, ch. 126, § 5. Where the Bill or Note is paid by an indorser, it might
be important to him, to have a receipt to verify the fact of payment. Ibid. ;
Mendez v. Carreroon, 1 Ld. Raym. 742. But where payment is made by
the maker, it would seem to be sufficient that the Note is in his posses-
sion, to establish the presumption, that he has paid it. But this presump-
tion, however, has not been admitted in the case of the acceptor of a Bill
of Exchange, from his mere possession of it without further proof. Ibid. ;
Pfiel v. Van Batenberg, 2 Camp. R. 439; Egg v. Barnett, 3 Esp. R. 196 ;
Aubert v. Walsh, 4 Taunt. R. 293. In Pfiel v. Van Bantenberg, 2 Camp.
R. 439, Lord Ellenborough said : — " Show, that the bills were once in
circulation after being accepted, and I will presume that they got back to
the acceptor's hands by his having paid them. But when he merely pro-
duces them, how do I know that they were ever in the hands of the payee,
or any indorsee, with his name upon them as acceptor? It is very possi-
ble, that when they were left for acceptance, he refused to deliver them
back, and having detained them ever since, now produces them as evidence
of a loan of money. Nor do I think the receipts carry the matter a bit
CH. III.] RIGHTS AND DUTIES OF PARTIES. 119
be the positive requirement of our law, when the pay-
ment of non-negotiable paper is demanded ; although,
if an action of law were brought to recover upon the
Note, it must be produced, or its absence or loss be satis-
factorily accounted for. 1
§ 107. But where the Promissory Note is negotiable,
and is payable to bearer, or, being payable to order, is
indorsed in blank, and then it is not produced or offered
to be delivered up to the maker upon payment there-
of, there a different rule prevails, although (as we shall
presently see) the American authorities are not all
agreed on the point ; 2 and the holder is not entitled
to demand payment, without delivering up the Note.
It is not sufficient, in such a case, to show that the Note
has been lost or even destroyed, or that it has become
overdue ; for the maker has a right to it as his voucher
of payment, and as his security against any future claim
or demand thereof. As far as regards his voucher and
further, unless you show them to be in the handwriting of the defendant,
or some other person authorized to receive payment of the bills. A man
cannot be allowed to manufacture evidence for himself at the risk of being
convicted of forgery ; and it is possible, that though the bills are unsatis-
fied, these receipts may have been fraudulently indorsed without the plain-
tiff's privity. The fact of payment still hangs in ditbio, and you must do
something more to turn the balance. Prove the bills out of the plaintiff's
possession aceepted, and I will presume that they got back again by pay-
ment. If you do not, the plaintiff must be called." Post, § 452.
1 Bayley on Bills, ch. 9, p. 369-371, (5th.edit) ; Chitty on Bills, ch. 9,
p. 391, 456-458, 8th edit.); Wain v. Bailey, 10 Adolp. & Ellis, 616;
Pierson v. Hutchinson, 2 Camp. R. 211; Long v. Bailie, 2 Camp. R. 214 ;
Champion v. Terry, 3 Brod. & Bing. R. 295; Rolt v. Watson, 4 Bing. R.
273; Hansard v. Robinson, 7 Barn. & Cressw. 90; Rowley v. Ball,
3 Cowen, R. 303 ; Pintard v. Tackington, 10 John. R. 104; Renner v.
Bank of Columbia, 9 Wheat. R. 581, 596, 597 ; McNair v. Gilbert,
'I Wend. R. 344 ; Hough v. Boston, 20 Vermont R. 455.
2 Post, § 111, 448.
120 PROMISSORY NOTES. [CH. III.
discharge towards the holder, it will he the same thing,
whether the instrument be destroyed or mislaid. With
respect to his own security against a demand by another
holder, there may he a difference. But how is he to he
assured of the fact, either of the loss or of the destruc-
tion of the Note ? Is he to rely upon the assertion of
the holder, or to defend an action at the peril of costs ?
And if the Note should afterwards appear, and a suit
should he brought against him by another holder, (a
fact not improbable in case of a lost Bill,) is he to seek
for the witnesses to prove the loss, and to prove that
the new plaintiff must have obtained it after it became
due ? Has the holder a right, by his negligence or mis-
fortune, to cast this burden upon the maker, even as a
punishment for not discharging the Note on the day
when it became due ? *
§ 108. These considerations, although put in a mere
interrogatory form, present the full stress of the argu-
ment against any right of the holder to require pay-
ment, or any duty on the part of the maker to make
payment, of such a negotiable Note, alleged to be lost
or destroyed, which may pass title by mere delivery.
They have been thought sufficient in England, notwith-
standing some conflict of opinion, to support the doctrine
that no remedy under such circumstances lies at law
upon such a Note, whether, at the time of the supposed
loss or destruction, the Note was overdue or not ; and
1 Hansard v. Robinson, 7 Barn. & Cressw. R. 90. This case arose on
a Bill of Exchange, and the reasoning of Lord Tenterden, in delivering
the judgment of the Court, is addressed to that case. But it is equally-
applicable to the case of a Promissory Note ; and is so laid down in Bay-
ley on Bills, ch. 9, p. 369-373, (5th edit.) ; Story on Bills of Exchange,
§447-449.
CH. III.] RIGHTS AND DUTIES OF PARTIES. 121
that the true and only remedy is in a Court of Equity,
which, in granting relief, can at the same time compel
the holder to give to the maker a suitable and adequate
indemnity. 1 Of course, as we shall hereafter see, every
consideration herein urged applies still more forcibly to
the case, where payment is demanded of an indorser;
for he is entitled to his recourse over against the
maker. 2
§ 109. The case of a Promissory Note, payable to
bearer, affords a very clear illustration of the principle
thus established; for any person who becomes the
lawful possessor of such a Note, after it has been lost,
for value and without any notice of a defect in his
title, is certainly, upon principles of policy and public
convenience, entitled to the fullest protection. 3 Under
such circumstances, the maker ought not to be exposed
to the risk of being liable to a double payment thereof
to different holders, which he may, upon any other rule,
be compelled to incur ; and against which, from the
want of evidence on his own part, and from the varying
i Bayley on Bills, ch. 9, p. 369-373, (5th edit.); Hansard v. Robin-
son, 7 Barn. & Cressw. 90; Ex parte Greenway, 6 Ves. 812 ; Davis v.
Dodd, 4 Taunt. R. 602; Davis v. Dodd, 1 Wilson, Exch. R. 110. By
Statute of 9 and 10 Will. 3, ch. 17, fy 3, if an inland Bill be lost or mis-
carried within the time limited for payment, the drawee shall give another
of the same tenor to the holder, who, if required, shall give security to
indemnify him in case the Bill shall be found. A provision like this ex-
isted under the French Ordinance of 1673, art. 19.
2 Bayley on Bills, ch. 9, p. 371-373, (5th edit.); Chitty on Bills,
ch. 10, p. 532, (8th edit.) ; Story on Bills of Exchange, §449 ; Post,
445.
3 Bayley on Bills, ch. 12, p. 529 - 531 (5th edit.) ; Chitty on Bills, eh.
6, § 3, p. 277-284 (8th edit.) ; Story on Bills, § 193, 194, 415; Good-
man v. Harvey, 4 Adolp. & Ellis, 870 ; Uther v. Rich, 10 Adolp. &
Ellis, 784; Arbouin v. Anderson, 1 Adolp. & Ellis, New R. 498, 504 ;
Knight v. Pugh, 4 Watts & Serg. R. 445.
PROM. NOTES. 11
122 PROMISSORY NOTES. [CH. III.
evidences in each of the cases, tending to charge him,
he may be unable to protect himself.
§ 110. The French Law proceeds upon a similar dis-
tinction and principle. By the old law, as well as by
the modern Code of Commerce, the acceptor of a Bill
(and the like rule applies to the maker of a Promissory
Note) is not required, when it is alleged to be mislaid,
or lost, or destroyed, to pay the Bill, if it be payable to
bearer, or to order, unless upon an indemnity being first
given to the acceptor, under the sanction of the proper
court. 1 And by the old law, silently dropped in the
modern Code, it was also provided, that if the Bill be
payable to a particular person only, then, notwithstand-
ing the mislaying, or loss, or destruction, of the Bill,
payment of the Bill may be required of the acceptor
without any tender of indemnity. 2
§ 111. In America, there has been (as has been al-
ready hinted) some diversity of judicial opinion, as to
1 Post, § 111.
2-Ordin. of 1673, art, 18, 19; Jousse, Sur L'Ord. 1673, art 18, 19;
Code de Comm. art. 151, 152 ; Pardessus, Droit Comm. Tom. 2, art. 4G8,
410, 411. Jousse, in his Commentary upon the Ordin. of 1673, art. 18,
p. Ill, gives the reason for the distinction. " Sans donner caution. Paree
qu'une Lettre de Change, qui n'est point payable a ordre, ou au porteur,
mais seulement a un particulier, a'a point de suite, et que nulle autre per-
sonne entre les mains de qui cette lettre viendrait a tomber, ne peut s'en
servir qu'en vertu d'un transport que lui en aurait fait celui au profit de
qui elle est tiree. Ainsi il n'est pas necessaiie dans ce cas de donner
caution pour recevoir la somme en vertu d'une seconde lettre, parce que si
apres l'acquittement de cette seconde lettre il venait une personne avec la
premiere Lettre de Change, meme avec un transport de celui a. qui elle
appartenait, elle n'en serait pas plus avancee, ce transport ne lui donnant
pas plus de droit qu'en avait son cedant, suivant cette maxime de Droit, que
Nemo plus juris potest ad ahum transferre quam ipse habet. (Dig. Lib.
54. ff. de Regulis Juris.) C'est pourquoi celui, que aurait paye sur la
seconde lettre, serait decharge de payer la premiere, en rapportant cette
seconde lettre quittancee de celui a qui elle etait payable," Post, § 447.
CH. III.] RIGHTS AND DUTIES OF PARTIES. 123
the right of the holder, at law, to compel payment of a
Promissory Note from the maker, without a delivery or
production thereof. In some of the States, the affirma-
tive has been maintained ; 1 in others, the English doc-
trine prevails ; 2 and, again, in others, the holder is en-
titled to recover at law, if he executes a suitable instru-
ment of indemnity. 3 Upon another point, also, german
to this matter, the authorities are at variance with each
other. In England, it has been held, that if a Promis-
sory Note, payable to bearer, (as for example, a bank
note,) be cut in halves, and one half be lost, the holder
cannot recover upon the other half at law ; because the
entire instrument must be produced, or, at least, suffi-
cient proof given, that the part which is wanting has
been destroyed, for the half which is missing may have
got into the hands of a bond fide holder for value, and
he would have as good a right to recover upon that, as
the other holder upon the other half. 4 A different doc-
1 Anderson v. Robson, 2 Bay, R. 495 ; Swift v. Stevens, 8 Connect. R.
431 ; Murray v. Carrett, 3 Call, R. 373 ; Renner v. Bank of Columbia,
9 Wheat. R. 581 ; Peabody v. Denton, 2 Gallis. R. 351 ; Story on Bills,
$ 448. See Freeman v. Boynton, 7 Mass. R. 483, 486; Whitwell v.
Johnson, 17 Mass. R. 449, 452 ; Gilbert v. Dennis, 3 Mete. R. 495, 496,
497 ; Fales v. Russell, 16 Pick. R. 315, 316 ; Baker v. Wheaton, 5
Mass. R. 509, 512 ; Jones v. Fales, 5 Mass. R. 101 ; Clark v. Reed, 12
Smedes & Marshall, R. 554.
2 Rowley v. Ball, 3 Cowen, R. 303 ; Smith v. Rockwell, 2 Hill, N. Y.
R. 482, Morgan v. Reintzel, 7 Cranch, R. 275. See Pintard v. Tack-
ington, 10 John. R. 104; McNair v. Gilbert, 3 Wend. R. 344.
3 Meeker v. Jackson, 3 Yeates, R. 442 ; Brent v. Ervin, 15 Martin,
Louis. R. 303; Lewis v. Petavin, 16 Martin, Louis. R. 4; Miller v.
Webb, 8 Miller, Louis. R. 516 ; Fales v. Russell, 16 Pick. R. 315, 316 ;
Smith v. Rockwell, 2 Hill, N. Y. R. 482 ; Post, § 445.
4 Mayor v. Johnson, 3 Campb. R. 326. Upon this occasion, Lord Ellen-
borough said ; — " I am of opinion, that this action cannot be maintained.
It is usual and proper to pay upon an indemnity ; but payment cannot be
enforced at law only by the production of an entire Note, or by proof that
124 PROMISSORY NOTES. [CH. III.
r
trine has been maintained in some of the American
States. 1
§ 112. The law of France does not, (as we have
seen,) upon the subject of the loss or destruction of a
Bill of Exchange, or Promissory Note, differ in sub-
stance from that of England. 2 The Code of Commerce
positively declares, that, in such a case, the payment
thereof cannot be required except upon the order of the
proper judge, and upon giving security. 3 This order
may be obtained from the proper judge, upon applica-
tion of the holder ; and if the payment should be re-
fused on a demand made after such order, and security
offered, the holder is entitled to, and preserves all his
ordinary rights by a regular protest. 4
§ 113. In the next place, as to the duties and obliga-
tions of the maker of a Promissory Note. They may
be summed up in a very few words. He undertakes to
pay the money stated in the Note at the time, when it
becomes due, or, as the common phrase is, at its matu-
rity, to the payee, or other person, entitled to receive
the instrument, or the part of it, which is wanting, has been actually
destroyed. The half of this Note taken from the Leeds mail may have
immediately got into the hands of a bond fide holder for value, and he
would have as good a right of suit upon that, as the plaintiffs upon the
other half, which afterwards reached them. But the maker of a Promis-
sory Note cannot be liable in respect of it to two parties at the same time."
Bayley on Bills, ch. 9, p. 374 (5th edit.) But see, contra, Mossop v.
Eadon, 16 Ves. 430.
1 Bullett v. Bank of Pennsylvania, 2 Wash. Cir. R. 172 ; Patton v.
State Bank, 2 Nott & McCord, S. Car. R. 464 ; Hinsdale v. Bank of
Grange, 6 Wend. 378.
2 Ante, § 110.
3 Code de Comm. art. 151 - 153, 187 ; Locre, Esprit du Code de Comm.
Tom. 1, p. 478-486, art. 150-152; Pardessus, Droit Comm. Tom. 2,
art. 408-411; Ante, § 110.
4 Ibid.
CH. III.] RIGHTS AND DUTIES OF PARTIES. 125
the same, according to the tenor thereof. He is not
bound to pay the Note until its maturity ; and if he
pays it before, and it is not surrendered up, he will be
liable to any subsequent bond fide holder for value with-
out notice, before it became due. 1 The maker, in case
of the Note being payable to bearer, or indorsed in
blank, may discharge himself by payment to any per-
son, who is in possession of it, with an apparent lawful
right of ownership. 2 Mere suspicion, that he may not
be the lawful holder, will not exonerate the maker from
payment ; but there must be circumstances, amounting
to clear proof, that he is a fraudulent holder. 3 If the
Note is payable to order, and is indorsed, the maker,
before he can safely pay it, is bound to ascertain, if the
indorsement is genuine, and, if the indorsement be to a
particular person, that the person producing it is the
identical person, otherwise he may be liable to pay it
again to the real and true owner. 4
§ 114. The same rule, as to the liability of the maker
of a Promissory Note, is recognized in the foreign law ;
for the maker incurs personally the same obligations,
and stands in the same position as the acceptor of a
Bill of Exchange ; and by that law the acceptor, by his
i Bayley on Bills, ch. 8, p. 326 (5th edit.) ; Chitty on Bills, ch. 8 S
p. 429, 430 (8th edit.) ; Story on Bills, § 417.
2 Bayley on Bills, ch. 5, § 2, p. 129-131 (5th edit.) ; Miller v. Race,
1 Burr. R. 452 ; Grant v. Vaughan, 3 Burr. 1516 ; Story on Bills,
$450.
3 Goodman v. Harvey, 4 Adolp. & Ellis, 879 ; Uther v. Rich, 10
Adolp. & Ellis, 784 ; Arbouin v. Anderson, 1 Adolp. & Ellis, New R.
498, 504 ; Chitty on Bills, ch. 9, p. 429, 430 (8th edit.) ; Story on Bills,
§ 450,451.
4 Bayley on Bills, ch. 5, § 2, p. 129-131, 134 (5th edit.) ; Chitty on
Bills, ch. 9 p. 230, (8th edit.) ; Id. p. 459-463 ; Story on Bills, § 450^
451.
11*
126 PROMISSORY NOTES. [CH. III.
■ acceptance engages to pay to the holder the full amount
of the Bill at maturity ; and if he does not, the holder
has a right of action against him, as well as against the
drawer. Heineccius says ; " Trassati obligatio ex accep-
tatione demum nascitur, et tunc diibium non est, ilium tmn a
prcBsentanteytum ab indossatario conveniri posse. Et quam-
vis in utriusque arlitrio sit, adversas trassatum agere malit,
an adversus trassantem ; posterius tamen vel ideo plerumque
fieri solet, quia denegata cambii acceptati solutio argumentum
plerumque evidentissimum est, trassatum foro cessurum, et
jam turn non amplius solvendo esse." 1 Similar obligations
exist by the French Law between the acceptor of a Bill,
and the payee, and his indorsee, and every subsequent
holder thereof; and by his acceptance the acceptor (and
the maker of a Promissory Note is in the same predic-
ament) contracts an obligation with them respectively,
to pay the amount of the Bill at its maturity, according
to the tenor thereof; and this obligation he incurs con-
jointly, and in solido, with the antecedent parties thereto. 2
§ 115. In the next place, as to the rights, duties, and
obligations of the payee. Of course, he has a right to
receive payment at the maturity of the Promissory
Note, or when it becomes legally due, and at the same
time, (as we have just seen,) he ought to be ready to
produce and deliver up the Note. He is also entitled
to have it paid in the very money or currency, in which
it is made payable, at its value at the time of payment ;
and he is not bound to accept payment in any other
manner. 3 Thus, for example, he is entitled ordinarily
1 Heinecc. de Camb. cap. 6, § 5 ; Story on Bills, § 115,
2 Pothier, De Change, 115-117; Code de Comm. art. 118, 121, 140,
187; Pardessus, Droit Comm. Tom. 5, art. 356, 376.
3 Story on Bills, $418, 419 ; Post, \ 389-400.
CH. III.] RIGHTS AND DUTIES OP PARTIES. 127
to demand payment in gold or silver, at its current
value, or the standard value in the country, where it is
paid, or payable ; and he is not bound to receive it in
bank notes, or in any other paper currency. 1 The Note
is also to be paid at the place, where it is made payable ;
and although there is some conflict of the authorities
upon the point, it would seem upon principle not to be
payable elsewhere, at least, not until a demand has first
been made thereof, at the proper place for payment. 2
But upon this more will be said hereafter in another
connection. 3 When the payee indorses the Bill, other
rights, duties, and obligations intervene, which we shall
proceed immediately to consider.
§ 115 a. It may be well in this connection to state,
that it is no part of the duty of the holder of a Note,
i Story on Bills, § 419 ; Chitty on Bills, ch. 9, p. 433 (8th edit.) ; Post,
$ 389-400.
2 Story on Bills, § 353-357, and the authorities there cited.
3 Mr. Bayley says (Bayley on Bills, ch. 7, § 1, p. 217) ; " The receipt
of a Bill or Note implies an undertaking from the receiver, to every party
to the Bill or Note, who would be entitled to bring an action on paying it,
to present, in proper time, the one, where necessary, for acceptance, and
each for payment ; to allow no extra time for payment; and to give notice
without delay to such person of a failure in the attempt to procure a proper
acceptance or payment ; and a default in any of these respects will dis-
charge such person from all responsibility on account of a non-acceptance
or non-payment, and will, unless the Bill or Note were on an improper
stamp, make it operate as a satisfaction of any debt or demand for which
it was given." There is some confusion in this passage, arising from the
fact, that Bills and Notes are both mixed up in the statement. And, in
truth, all that is said is solely applicable to the drawers and indorsers of
Bills, and the indorsers of Notes, for, although the maker of a Note, or
the acceptor of a Bill, is an accommodation maker or acceptor for some
other party thereon, and " would be entitled to hring an action on paying
it," yet neither of them is within the scope of the rule, and the holder
may, as to them, delay the demand of payment, as long as he chooses,
without injury to his rights.
128 PROMISSORY NOTES. [CH. ILL
which has been dishonored, and due notice thereof given
to the indorsers, to sue the maker, if the indorsers, or
any of them, request him so to do. lie has his choice
in this respect to sue whom he pleases, and all are in
default to him. On the contrary, it is the duty of any
indorser, who desires to recover or secure the amount
against any of the antecedent parties, to pay the Note
himself, and thus to entitle himself to bring a suit
against such parties. 1
[§ 115 b. Though by the common law, where a con-
tract in writing, not under seal, is made in another
name than that of the real principal, the latter can sue
and be sued, yet in the case of a Bill of Exchange or a
Promissory Note, none but the parties named in the
instrument, can sue or be sued upon it. Therefore,
where the Bank of the United States sought to recover
upon a Promissory Note, executed by the defendants
and made payable to " Samuel Jauclon, Esq. Cashier, or
order," and it appeared that the note was given for a
debt due to the plaintiffs, and that Jaudon was their Cash-
ier, acting merely as their agent in taking the note, and
having no personal interest in it whatever, and, that the
note had not been indorsed by Jaudon, it was held that
the plaintiffs could not sustain an action upon it, nor
give it in evidence under a count for money had and
received to their use, or an account stated with them. 2 ]
i Beebe v. West Branch Bank, 7 Watts & Serg. 375 ; Post, § 419.
2 Bank of United States v. Lyman, 20 Vermont R. 667. But see Fur-
niss v. Gilchrist, 1 Sandford, Superior Ct. N. Y. R. 53.
CH. IV.] EIGHTS OF PARTIES ON TRANSFERS, 129
CHAPTER IV.
RIGHTS, DUTIES, AND OBLIGATIONS OF PARTIES, ON
TRANSFERS.
§ 116. Let us now proceed to the consideration of the
rights, duties, and obligations of the transferrer, or in-
dorser, of a Promissory Note. A note may be trans-
ferred by mere delivery, as, for example, when it is pay-
able to bearer, or it is indorsed in blank, and the holder
is not the indorser ; or it may be transferred by indorse-
ment. 1 The rights, duties, and obligations in each of
these cases are not the same, and therefore require a
separate and distinct consideration.
§ 117. And first, as to a transfer by delivery.. When
a Promissory Note is payable to the bearer, and it is
transferred by mere delivery, without any indorsement,
the person making the transfer ceases to be a party to
the Note. 3 Under such circumstances, he does not in-
cur the obligations or responsibilities ordinarily belong-
ing to an indorser. 3 In other words, where a Promis-
i Bayley on Bills, ch. 5, § 1, p. 121 (5th edit.)
2 Bayley on Bills, ch. 5, § 1, p. 121 (5th edit.) ; Id. p. 368; Story on
Bills, § 111, 200, 225, note ; Chitty on Bills, ch. 6, p. 271 (8th edit.) ;
Id. ch. 6, p. 245-247 (9th edit.) ; Thomson on Bills, ch. 3, p. 555 (2d
edit.)
3 Story on Bills, § 109, and note; Bayley on Bills, ch. 5, § 3, p. 169,
170 (5th edit.) ; Chitty on Bills, ch. 6, p. 268, 269 (8th edit.) Mr. Chitty,
in the 8th edition of his work on Bills of Exchange, (ch. 6, p. 219,) has
130 PROMISSORY NOTES. [CH. IV.
sory Note is payable to the bearer, or, being payable to
the payee or order, it is indorsed in blank, and after-
wards is transferred by the holder by mere delivery
thereof, without any indorsement, such holder is not
responsible thereon to the immediate party, to whom he
delivers the same, or to any subsequent holder, upon
the dishonor thereof; for no person, whose name is not
on the Note, as a party thereto, is liable on the Note,
and he cannot be deemed to undertake any of the ordi-
nary obligations of an indorser. 1 By not indorsing it,
he is generally understood to mean, that he will not be
responsible upon it. 2 If, indeed, he undertakes to guar-
anty the payment of the Note, upon such a delivery or
transfer, he may be liable upon such special contract ; 3
but that is collateral to the obligations created by the
Note, and is ordinarily limited to the immediate parties
thereto. 4 In like manner, if the Note, in such a case,
is received by the party, to whom it is delivered, as con-
the following passage ; — " And in all cases, though no words authorizing
a transfer be inserted in a Bill or Note, yet it will always have the same
operation against the party making the transfer, as if he had power to
assign ; for the act of indorsing a Bill is equivalent to that of a new draw-
ing ; and a transfer by mere delivery, unless where it is otherwise agreed
or understood from the nature of the transaction, imposes on the person
making it, an obligation to his immediate assignee, similar to that created
by indorsement." The latter part of this passage is incorrect in point of
law. In the 9th edition (1810) of the same work, edited by Chitty and
Hulme, Pt. 1, ch. 6, p. 196, 197, the whole passage is silently dropped,
and thereby its inaccuracy impliedly admitted.
1 See Bayley on Bills, ch. 9, p. 368, 369 (5th edit. 1830) ; Chitty on
Bills, ch. 5, p. 197, 200, 201 (8th edit. 1833) ; Id. ch. 6, p. 262, 269-
273.
2 Fenn v. Harrison, 3 Term R. 757.
3 Chitty on Bills, ch. 16, p. 209, 270, 272 (8th edit. 1833) ; Morris v.
Stacey, Holt, N. P. R. 153.
4 Chitty on Bills, ch. 6, p. 268-271 (8th edit.) 1833) ; In the matter of
Barrington and Burton, 2 Sch. & Lefr. 112 ; Story on Bills, § 215, 457.
CH. IV.] RIGHTS OF PARTIES ON TRANSFERS. 131
ditional payment of a precedent debt due to him, or as
a conditional satisfaction for any other valuable consi-
deration;, then paid by him, the holder, who delivered it,
will, if the Note be duly presented and dishonored, and
due notice thereof be given to him, be responsible to
pay back the full amount of the precedent debt, or val-
uable consideration, although he is not directly suable
as a party to the Note. 1 On the other hand, the party,
receiving the same, is bound, under such circumstances,
to make due presentment of the Note, and to give due
notice of the dishonor ; otherwise, by his laches, he
makes the Note his own, and discharges the party from
whom he received it, from all liability for any loss sus-
tained thereby. 2 But this we shall presently have occa-
sion to state in more general terms. 3
1 Chitly on Bills, ch. 5, p. 200-202 (8th edit. 1833) ; Id. p. 268-271 ;
Bayley on Bills, ch. 9, p. 363-368 (5th edit. 1830) ; Ex parte Blackburne,
10 Ves. 204; Owenson v. Morse, 7 Term R. 64 ; Brown v. Kevvley, 2
Bos. & Pull. 518 ; Ward v. Evans, 2 Ld. Raym. 928 ; Puckford v. Max-
well, 6 Term R. 52 ; Tapley v. Martens, 8 Term R. 451 ; Robinson v.
Read, 9 Barn. & Cressw. 449 ; Emly v. Lye, 15 East, R. 13; Ex parte
Dickson, cited 6 Term R. 142 ; Ante, § 104, 105 ; Post, § 404, 438.
2 Ibid. In Bayley on Bills, ch. 5, \ 3, p. 169 (5th edit. 1830), it is
said ; " And a transfer, by delivery only, if made on account of an ante-
cedent debt, implies a similar undertaking, from the party making it, to
the person, in whose favor it is made ; " that is, an undertaking similar
to that of an. indorser, or drawer, of a Bill. But this is manifestly incor-
rect. Mr. Chitty, in his 8th edition, (1833,) p. 268, quite as inaccurately
stated the same position ; but afterwards immediately corrected it in his
text ; and stated, what is now the well considered and established doctrine.
In his 9lh edition, (1840,) p. 244, he says; "It has been said, that a
transfer by mere delivery, without any indorsement, when made on ac-
count of a preexisting debt, or for a valuable consideration, passing to the
assignor, at the time of the assignment, (and not merely by way of sale or
exchange of paper,) as where goods are sold to him, imposes an obligation
on the person making it to the immediate person, in whose favor it is
3 Story on Bills, § 109,
132 PROMISSORY NOTES. [CH. IV.
§ 118. Still, however, unless it be expressly other-
wise agreed, the holder so transferring the Note is not
exempt from all obligations or responsibilities ; but he
incurs some, although they are of a limited nature. In
the first place, he warrants by implication, unless other-
wise agreed, that he is a lawful holder, and has a just
and valid title to the instrument, and a right to transfer
it by delivery ; for this is implied as an obligation of
good faith. 1 In the next place, he warrants, in the
like manner, that the instrument is genuine, and not
forged or fictitious ; 2 [unless where the note is sold, as
made, equivalent to that of a transfer by formal indorsement. But this
expression seems incorrect ; for the party, transferring only by delivery,
can never be sued upon the instrument, either as if he were an indorser,
or as having guaranteed its payment, unless he expressly did so. The
expression should be, 'that, if the instrument should be dishonored, the
transferrer, in such case, is liable to pay the debt, in respect of which he
transferred it, provided it has been presented for payment in due time, and
that due notice be given to him of the dishonor.' A distinction was once
taken between the transfer of a bill, or check, for a precedent debt, and
for a debt, arising at the time of the transfer ; and it was held, that, if A.
bought goods of B., and, at the same time, gave him a draft on a banker,
which B. took, without any objection, it would amount to payment by A.,
and B. could not resort to him, in the event of a failure of the banker.
But it is now settled, that, in such case, unless it was expressly agreed, at
the time of the transfer, that the assignee should take the instrument as-
signed as payment, and run the risk of its being paid, he may, in case of
default of payment by the drawee, maintain an action against the assignor,
on the consideration of the transfer. And, where a debtor, in payment of
goods, gives an order to pay the bearer the amount in Bills on London,
and the party takes Bills for the amount, he will not, unless guilty of
laches, discharge the original debtor." Chitty on Bills, ch. 6, p. 268, 269
(8th edit. 1833) ; Id. Pt. 1, ch. 6, p. 244 (9th edit.) ; Camidge v. Allenby,
6 Barn. & Cressw. 373.
t Story on Bills, § 109- 111. See Burrill v. Smith, 7 Pick. 291.
2 Bayley on Bills, ch. 5, § 3, p. 179, (5th edit.) ; Id. p. 364, 366 ;
Chitty on Bills, ch. 6, p. 269-271, (8th edit.); Id. ch. 6, p. 244-247,
(9th edit.) ; Story on Bills, § 111, 225, 419 ; Ellis v. Wild, 6 Mass. R.
321 ; Young v. Adams, 6 Mass. R.182 ; Markle v. Hatfield, 2 John. R.
CH. IV.] RIGHTS OF PARTIES ON TRANSFERS. 133
other goods and effects, by delivery merely Without in-
dorsement, in which case it has been decided that the
law respecting the sale of goods is applicable, and that
there is no implied warranty. 1 ] In the next place, he war-
rants, that he has no knowledge of any facts, which
prove the instrument, if originally valid, to be worth-
less, either by the failure of the maker, or by its being
already paid, or otherwise to have become void or de-
funct ; for any concealment of this nature would be
a manifest fraud. 2 Thus, for example, if the instrument
455 ; Eagle Bank of New Haven v. Smith, 5 Conn. R. 71 ; Jones v.
Ryde, 5 Taunt. R. 488 ; Bruce v. Bruce, 1 Marsh. (Eng.) R. 165.
1 Baxter v. Daren, 16 Shepley, R. 434 ; Ellis v. Wild, 6 Mass. R. 321 ;
Fenn v. Harrison, 3 T. R. 757; Bank of England v. Newman, 1 Ld.
Raym. 442 ; Chitty on Bills, ch. 6, p. 245, 246.
2 Chitty on Bills, ch. 6, p. 271, (8th edit.); Id. ch. 6, p. 244-249,
(9th edit.) ; Bayley on Bills, ch. 9, p. 365, 366, (5th edit.) ; Story on
Bills, §111, note, § 225, and note ; Fenn v. Harrison, 3 Term R. 757;
Camidge v. Allenby, 6 Barn. & Cressw. 373, 382; Young v. Adams,
6 Mass. R. 182, 185. The following quotation from the 9th edition (1840)
of Mr. Chitty on Bills, p. 244 - 247, edited by Mr. Chitty and Mr. Hulme,
shows the state of the law according to the learned author's latest opinion.
It occurs immediately after the passage cited in the preceding section, n.
(2.) " And where a person obtains money or goods on a bank note, navy
bill, or other Bill or Note, on getting it discounted, although without in-
dorsing it, and it turns out to be forged, he is liable to refund the money
to the party from whom he received it, on the ground that there is in gene-
ral an implied warranty, that the instrument is genuine ; although there is
no guaranty implied by law in the party passing a Note payable on de-
mand to bearer, that the maker of the Note is solvent at the time when it
is so passed. And though a party do not indorse a Bill or Note, yet he
may, by a collateral guaranty or undertaking, become personally liable.
But as on a transfer by mere delivery, the assignor's name is not on the
instrument, there is no privity of contract between him and any assignee,
becoming such after the assignment by himself, and consequently no per-
son but his immediate assignee can maintain an action against him, and
that only on the original consideration, and not on the Bill itself. And if
only one of several partners indorse his name on a Bill, and get it dis-
counted' with a banker, the latter cannot sue the firm, though the proceeds
of the Bill were carried to the partnership account. When a transfer by
prom, notes. 12
/
134 PROMISSORY NOTES. [CH. IV.
be a bank note, and at the time of the transfer by de-
livery the party knows the bank to have become insol-
vent, and conceals it from the other party, it will be
deemed a fraud, and the consideration for the transfer
may be recovered back. 1
§ 119. But another question may arise upon this sub-
ject, which involves more doubt, and has given rise to
some diversity of opinion. Suppose the instrument to
be a bank note, and both parties are equally innocent,
and equally ignorant, that the bank at that time has
actually failed, and become insolvent. Under such cir-
cumstances, which party is to bear the loss ? The
transferrer or the transferee ? The authorities on this
subject are in conflict with each other, some maintain-
ing, that the transferrer in such case must bear the loss,
and others that it must be borne by the transferee.
The weight of reasoning, and the weight of authority,
seems to be in favor of the former ; for, as Mr. Chitty
has well remarked, it must be implied in the absence of
any other express agreement or understanding, that, at
mere delivery, without indorsement, is made merely by way of sale of the
Bill or Note, as sometimes occurs ; or by exchange of it for other Bills ; or
by way of discount, and not as a security for money lent ; or where the
assignee expressly agrees to take it in payment, and to run all risks ; he
has in general no right of action whatever against the assignor, in case the
Bill turns out to be of no value. But there can be no doubt that if a man
assign a Bill for any sufficient consideration, knowing it to be of no value,
and the assignee be not aware of the fact, the former would, in all cases,
be compellable to repay the money he had received. And it should seem
that if, on discounting a Bill or Note, the Promissory Note of country
bankers be delivered after they have stopped payment, but unknown to the
parties, the person taking the same, unless guilty of laches, might recover
the amount from the discounter, because it must be implied, that at the
time of the transfer the Notes were capable of being received, if duly pre-
sented for payment."
i Ibid.
CH. IV.] RIGHTS OP PARTIES ON TRANSFERS. 135
the time of the transfer, the bank note would be paid, if
duly presented for payment at the bank. 1
§ 120. In the next place, as to transfers by indorse-
ment. If a Promissory Note is originally payable to a
person or his order, there it is properly transferable by
indorsement. We say properly transferable, because in
no other way will the transfer convey the legal title to
the holder, so that he can, at law, hold the other parties
liable to him ex direcio, whatever may be Iris remedy in
equity. 2 If there be an assignment thereof without an
indorsement, the holder will thereby acquire the same
rights only, as he would acquire upon an assignment of
a Note not negotiable. 3 If by mistake, or accident, or
i Chitty on Bills, ch. 6, p. 271, (8th edit.) ; Id. ch. 6, p. 247, (9th edit.)
and note supra ; Id. ch. 9, p. 384, 385, (9th edit.) ; Story on Bills, § 111,
and note, § 225, 419. See Camidge v. Allenby, 6 Barn. & Cressw. 373 ;
Owen v. Morse, 7 Term R. 64 ; Ex parte Blackburne, 10 Ves. 204 ; Emly
v. Lye, 15 East, 7, 13. By Bayley J. In Bayard v. Shunk, 1 Watts &
Serg. R. 92, in Pennsylvania, it was held, that payment in bank bills, after
the bank has failed, but the fact is unknown both to payer and receiver, is
a good payment, and the loss is to be borne by the receiver. The like
doctrine seems to have been held in Young v. Adams, 6 Mass. R. 182, 185,
in Scruggs v. Gass, 8 Yerger, Tenn. R. 175, and in Lowry v. Murrell,
2 Porter, Alab. R. 282. The opposite doctrine has been maintained in
New York, in Lightbody v. The Ontario Bank, 11 Wend. R. 1, affirmed,
on error in 13 Wend. R. 107, and in Harley v. Thornton, 2 Hill, So. Car.
R. 509. The same doctrine has been supported in New Hampshire, in
Fogg v. Sawyer, 9 New Hamp. R. 365 ; Story on Bills, § 225, and note ;
Post, § 389.
3 Bayley on Bills, ch. 5, § 1, p. 120, 121, (5th edit. 1830); Chitty on
Bills, ch. 6, p. 251, (8th edit. 1833) ; Id. p. 265; Gibson v. Minet, 1 H.
Black. 605; Story on Bills, § 60; Clark v. Sigourney, 17 Conn. R. 511.
3 In genera], in such a case, the holder, as against the prior parties, will,
upon the transfer, have the same rights in equity, as the payee or assignor
has ; that is, he may, at law, sue the other parties thereto, in the name of
the payee or assignor, or perhaps he may maintain a suit in equity in his
own name, ex directo, against them. See Story on Bills, § 199 ; 2 Story
on Eq. Jurisp. $ 1036, 1037, 1044, 1047.
136 PROMISSORY NOTES. [CH. IV.
\
fraud, a Note has been omitted to be indorsed upon a
transfer, when it was intended that it should be, the
party may be compelled by a Court of Equity, to make
the indorsement ; and, if he afterwards becomes bank-
rupt, that will not vary his right or duty to make it ;
and, if he should die, his executor or administrator will
be compellable, in like manner, to make it. 1 The as-
signees of a bankrupt, under the like circumstances,
may be compelled to make an indorsement of a Note,
tranferred before his bankruptcy. 2 But, in the case of
an executor, or administrator, or assignee of a bank-
rupt, the doctrine is to be understood with this limita-
tion, that the indorsement cannot be insisted upon, ex-
cept with the qualification, that it shall not create any
personal liability of the executor, or administrator, or
assignee, to pay the Note. 3
[§ 120 a. A Note may be indorsed to a party in two
ways, either by special indorsement, making it payable
to that party, or by a blank indorsement, and delivery
to that party. In the latter way, if not in the former,
the note must be delivered to the party as indorsee, in
order to constitute an indorsement to him. Accord-
ingly where a party having written his name on a Pro-
missory Note, deceased, and his executrix without in-
dorsing it, simply delivered it to the plaintiffs, it was
held that these acts did not constitute an indorsement
1 Chitty on Bills, ch. 6, p. 228, 229, (8th edit. 1833) ; Id. p. 263 ; Bay-
ley on Bills, ch. 5, § 1, p. 123, (5th edit. 1830) ; Id. § 2, p. 136, 137;
Watkins v. Maule, 2 Jac. & Walk. 237, 242 ; Smith v. Pickering, Peake >
R. 50.
2 Bayley on Bills, ch. 5, § 2, p. 138, (5th edit. 1830) ; Ex parte Mow-
bray, 1 Jac. & Walk. 428.
3 Ibid. ; Story on Bills, § 195, 201.
OH. IV.] EIGHTS OF PARTIES ON TRANSFERS. 137
of the Note, and that the plaintiffs had no title to sue
on it. 1 ]
§ 121. In the next place, as to the form of an in-
dorsement. In cases, where an indorsement is neces-
sary, as it is upon all Promissory Notes payable to
order, no particular form of words is indispensable to
be used. It is generally sufficient, if there be the sig-
nature of the indorser affixed, without any other words
being used. And if any other words are placed over,
or precede the signature, it is sufficient, if they import
a present intent to transfer the same thereby. 2 It has
even been held, that the initials of the holder of a
check, indorsed on the check, are sufficient to charge
him as indorser. 3 So, if the party intending to become
the indorser, make any marks or write any figures (as
1, 2, 8,) on the back of the Note, he will be chargeable
as indorser. 4 The word indorsement, in its strict sense,
seems to import a writing on the back of the Note ; but
it is well settled, that this is not essential. 5 On the
contrary, it will be a good indorsement, if it be made
on the face of the Note, or on another paper annex-
ed thereto, (called, in France, Allonge,) which is some-
1 Browage v. Lloyd, 1 Welsby, Hurlstone & Gordon, 32; Marston v.
Allen, 8 Mees. & Welsb. 494; Bell v. Ingestre, 12 Adolph. & Ellis,
N. S. 317; Clarke. Sigourney, 17 Conn. R. 511; Nelsons. Nelson, 6 Ire-
dell, Equity, N. C. R. 409.
2Chitty on Bills, ch. 6, p. 253, (8th edit. 1833) ; Bayley on Bills,
ch. 5, § 1, p. 122, (5th edit. 1830) ; Chaworth v. Beech, 4 Ves. 555 ; Par-
tridge v. Davis, 20 Vermont, R. 499.
3 Merchants' Bank v. Spicer, 6 Wend. R. 443.
4 Brown v. Butchers' & Drovers' Bank, 6 Hill, N. Y. R. 443 ; George
v. Surrey, 1 Mood. & Malk. 516.
5 Heineccius says : "Id, quod vocant indossamentum (das Indossement,)
quia dorso inscribi solet." Heinecc. de Camb. cap. 2, § 7. See also,
Pothier De Change, n. 22 ; Gibson v. Powell, 6 Howard, Mississippi,
R. 60.
12*
138 PROMISSORY NOTES. [CH, IV,
times necessary, when there are many successive in-
dorsements to be made. 1 The signature ought, in all
cases, to be written with ink, in order to prevent its
defacement. But even this has been recently held not
to be indispensable, and that an indorsement in pencil
is sufficient. 2 The mode of making the indorsement,
when it is by an agent, or a partner, or a feme covert,
or any other person, acting officially, is precisely the
same, as the signature should be in drawing a Note. 3
In whatever way an indorsement may be made, by the
general principles of law, unless varied by the contract
of the parties, the indorser is deemed to stand in the
relation of a new drawer of a Bill of Exchange, and,
of course, he is affected with all the liabilities of a
drawer. 4
§ 122. Indorsements are sometimes made upon Pro-
missory Notes containing blanks, to be afterwards filled
up, and sometimes upon blank paper, which is intended
to be filled up, so as to make the party an indorser. In
all such cases, as against him, the Note is to be treated
exactly as if it had been filled up before he indorsed it,
and he will be bound accordingly. 5 And it will make
i Chitty on Bills, ch. 5, p. 147, (8th edit. 1833) ; Id. ch. 6, p. 253, 262 ;
Pardessus, Droit Comm. Tom. 2, art. 343 ; Folger v. Chase, 18 Pick. R.
63; Post, § 151.
2 Chitty on Bills, ch. 6, p. 252, (8th edit. 1833) ; Geary v. Physic,
5 Barn. & Cressw. 234 ; Partridge v. Davis, 20 Vermont, R. 499 ; Ante,
3 Ante, §68-73, 87.
* Chitty on Bills, ch. 6, p. 265-267, (8th edit. 1833) ; Hodges v. Stew-
ard, 1 Salk. R. 125; Heylia v. Adamson, 2 Burr. 674; Ballingalls v.
Gloster, 3 East, R. 481 ; Bayley on Bills, ch. 9, p. 332, (5th edit. 1830) ;
Pothier, De Change, n. 38 ; Story on Bills, § 204.
5 Chitty on Bills, ch. 6, p. 240, 241, (8th edit. 1823) ; Snaith v. Mingay,
1 Made & Selw. 87 ; Cruchley v. Clarance, 2 Maule & Selw. 90; Bay-
CH. IV.] RIGHTS OF PARTIES ON TRANSFERS. 139
no difference in the rights of the holder, that he knows
the facts ; unless, indeed, there should be a known fraud
upon the indorser, or a known misappropriation of the
Note to other purposes, than those which were in-
tended. 1
§ 123. As to the rights, duties, and obligations arising
from an indorsement. We have already had occasion to
consider, who are competent to become parties to Pro-
missory Notes, as makers, or payees, or indorsers, or in-
dorsees, and it is not, therefore, necessary to enlarge
upon that topic in this place. 2 Still, however, as the
subject is of great practical importance, it may be well
to suggest a few remarks ; first, as to the persons, by
whom a transfer may be made ; and, secondly, as to
the persons, to whom it may be made. In case of the
bankruptcy of the payee, or other holder of a Promis-
sory Note, all his rights of transfer of the same become
vested in his assignees, who may, by law, transfer the
same in their own names. 3 In case of the death of the
payee, or other holder, the like right exists in the exe-
cutors and administrators of the deceased ; and they
may, in their own names, transfer the Note in the like
manner. 4 In each of these cases, the transfer will be
ley on Bills, ch. 1, § 10, p. 36, (8th edit. 1830) ; Id. ch. 5, § 3, p. 167,
168 ; Russell v. Langstaffe, Doug. R. 514 ; Usher v. Dauncey, 4 Camp.
R. 97 ; Pasmore v. North, 13 East, R. 517 ; Putnam v. Sullivan, 4 Mass.
R. 45 ; Mitchell v. Culver, 7 Cowen, R. 336 ; Violett v. Patton, 5 Cranch,
R. 142 ; 1 Bell, Comm. B. 3, ch. 2, § 4, p. 390, (5th edit.) But see
Abrahams v. Skinner, 12 Skinner, 12 Adolph. & Ellis, R. 763.
i Ibid. ; Story on Bills, § 222.
2 Ante, § 58-104.
3 Chitty on Bills, ch. 6, p. 227-238, (8th edit. 1833) ; Bayley on Bills,
ch. 2, $ 4, p. 49, 50, (5th edit. 1830) ; Id. ch. 5, § 2, p. 136 - 156.
4 Chitty on Bills, ch. 6, p. 225, 226, (8th edit. 1833) ; Bayley on Bills,
ch. 5, $ 2, p. 136, (5th edit. 1830); Id. ch. 5, § 2, p. 136, 137; Rawlin-
140 PROMISSORY NOTES. [CH. IV.
available, as assets, for the benefit of the estate of the
bankrupt, or of the deceased testator or intestate, if the
Note was held by him bond fide on his own account ; and
if held, either positively or constructively, in trust for
the benefit of third persons, the transfer will be for
their sole use. 1
§ 124. In case of the marriage of a female, who is
payee or indorsee of a Note, the property thereof vests
in her husband, and he becomes solely entitled to nego-
tiate it, as holder, and to indorse it in his own name. 2
The same rule applies in the case of a Note made paya-
ble to a married woman after her marriage. The hus-
band may transfer it in his own name. 3 In case of an
infant payee or indorsee of a Note, the infant may, by
his indorsement, (which is a voidable act only, and not
absolutely void,) transfer the interest to any subsequent
holder, against all the parties to the Note except him-
self; but the indorsement will not bind him personally,
or bind his interest in the Note. 4
§ 125. In case of a Note, payable or indorsed to a
son v. Stone, 3 Wils. 1 ; S. C. 2 Str. R. 126 ; Watkins v. Maule, 2 Jac.
& Walk. 237.
i Ibid. ; Story on Bills, $ 195.
2 Ante, § 88 ; Chitty on Bills, ch. 2, p. 26, (8th edit. 1833) ; Id. eh. 6,
p. 225, 226 ; Bayley on Bills, ch. 2, § 3, p. 47 - 49, (5th edit. 1830) ; Id.
ch. 5, § 2, p. 135, 136 ; Miles v. Williams, 10 Mod. R. 243, 245 ; Mc-
Neilage v. Holloway, 1 Barn. & Aid. 218 ; Arnold v. Revoult, 1 Brod. &
Bing. 445 ; Philliskirk v. Pluckwell, 2 Maule & Selw. 393 ; Connor v.
Martin, 1 Str. R. 516 ; Burrough v. Moss, 10 Barn. & Cressw. 558 ;
Barlow v. Bishop, 1 East, R. 432 ; Miller v. Delamater, 12 Wend. R.
433.
3 Ibid.
4 Chitty on Bills, ch. 2, § 1, p. 21-24, (8th edit. 1833); Id. ch. 6,
p. 224; Bayley on Bills, ch. 2, $ 12, p. 44-46, (5th edit. 1830) ; Id.
ch. 5, i 2, p. 136 ; Story on Bills, § 196.
CH. IV.] RIGHTS OF PARTIES ON TRANSFERS. 141
trustee, for the use of a third person, (such as a Note,
payable or indorsed to A., for the use of B.,) the trustee
alone is competent to convey the legal title to the Note,
by a transfer or indorsement. 1 In the case of a part-
nership, a Note, payable or indorsed to the firm, may be
transferred by any one of the partners in the name
of the firm, 2 at any time during the continuance of the
partnership. But where the partnership is dissolved
during the lifetime of the partners, neither partner can
afterwards indorse a Note, payable to the firm, in the
name of the firm. 3 But where the dissolution is by the
death of one partner, there the survivor may indorse
a Note, payable to the firm, in his own name. 4 The
reason of the distinction is, that, in the former case, the
implied authority for one partner to act for all is gone ;
whereas, in the latter case, the Note, or chose in action,
vests exclusively in the partner by survivorship, al-
though he must account therefor, as a part of the as-
sets of the partnership. 5 If a Note be made payable
or indorsed to several persons not partners, (as to A., B.
and C.,) there the transfer can only be by a joint in-
dorsement of all of them. 6
§ 126. Thus far in respect to the persons, by whom
the transfer of Promissory Notes may be made. Let
1 Chitty on Bills, ch. 6, p. 226, (8th edit. 1833) ; Bayley on Bills, ch. 5,
§ 2, p. 134, (5th edit. 1830); Evans v. Cramlington, Carth. R. 5 ; S. C.
2 Vent. 307 ; Skinn. R. 264.
2 Chitty on Bills, ch. 2, p. 67, (8th edit. 1833) ; Id. ch. 6, p. 226 ; Bay-
ley on Bills, ch. 2, § 6, p. 53, 54, (5th edit. 1830.)
3 Sanford v. Mickles, 4 John. R. 224 ; Story on Partn. § 323 ; Bayley
on Bills, ch. 2, § 6, p. 59, (5th edit. 1830.)
4 Jones v. Thorn, 1 Martin, R. (N. S.) 463.
5 Crawshay v. Collins, 15 Ves. 218, 226.
6 Ibid. ; Carvick v. Vickery, 2 Doug. R. 653, note ; Story on Bills,
§ 197 ; Sayre v. Frick, 7 Watts & Serg. 383.
142 PROMISSORY NOTES. [CH. IV.
us, for a moment consider, to whom the transfer may be
made. The transfer may, of course, be made to any
person of full age, who is not otherwise incompetent.
It may also be transferred to an infant, and thereby the
interest will vest in him ; or to a feme covert, and then
the interest will vest in her husband, who thereby be-
comes the legal owner thereof, and may treat it, as pay-
able to himself; or he may, at his election, treat it, as
payable to himself and his wife ; 1 and then, if she sur-
vives her husband, he not having reduced the same
into possession, she may hold and sue upon the indorse-
ment in her own name, for her own use. If the trans-
fer be to a person, who is an idiot, or a non compos, or a
lunatic, there does not seem to be any legal incapacity
in holding it to be valid in their favor, if it be clearly
and unequivocally for their benefit, as if it be a mere
bounty to them. If the transfer be to an executor or
administrator, or to any person, as trustee for another,
it will operate, as a transfer to them personally, although
the trust may attach upon the proceeds in their hands. 2
If the transfer be to an agent, by an indorsement of his
principal in blank, he may treat the Note, as between
himself and all the other parties, except his principal, as
his own, and fill it up in his own name ; or he may hold
it for his principal, and act in his name. 3 If the in-
1 Bayley on Bills, ch. 2, § 3, p. 47-49, (5th edit. 1830) ; Chitty on
Bills, ch. 2, p. 26, (8th edit. 1833) ; Id. ch. 6, p. 225, 238 ; Id. Pt. 2,
ch. 1, p. 556; Philliskirk v. Pluckwell, 2 Mau.le & Selw. 393; Richards
v. Richards, 2 Barn. & Adolp. 447 ; Burrough v. Moss, 10 Barn. &
Cressw. 558.
2 Richards v. Richards, 2 Barn. & Adolp. 447.
3 Bayley on Bills, ch. 5, $ 2, p. 132-134, (5th edit. 1830 ; Story on
Bills of Exchange, § 207, 224; Clerk v. Pigot, 12 Mod. R. 192, 193;
1 Salk. 126; 3 Kent, Comm. Lect. 44, p. 78-81, 89, 90, (4th edit.);
CH. IV.] RIGHTS OF PARTIES ON TRANSFERS. 143
dorsement be filled up to the agent by the principal,
then he is invested with the legal title, as to all persons,
but his principal. But the principal may, at any time,
revoke his authority and reclaim his rights. 1
§ 127. In cases of Promissory Notes held by banks,
the question often arises, whether an indorsement there-
of by the cashier of the bank, in his official character,
as, for example, indorsed by him, "A. B., cashier," is
sufficient to pass the title of the bank thereto. It is
held to be sufficient, supposing him to possess authority
to pass the title, as he is deemed to possess it ex officio,
unless prohibited by the by-laws of the corporation. 2
The same rule will apply to any indorsements to the
cashier of a bank in the same mode, and the Note will
be deemed to be transferred to the bank. 3 And in cases
of an indorsement to a cashier of a bank, as cashier, as,
for example, "to A. B., cashier," it is competent for the
bank to maintain a suit thereon, as upon an indorse-
ment to the corporation or for the cashier to maintain
a suit thereon, in his own name. 4 In like manner, an
Chitty on Bills, ch. 6, p. 255, 256, (8th edit. 1833) ; Bank of Utica v.
Smith, 18 John. R. 230 ; Guernsey v. Burns, 25 Wend. R. 411 ; Little
v. O'Brien, 9 Mass. R. 423; Sterling v. Marietta & Susq. Trad. Co.
11 Serg. & Rawle, 179; Mauran v. Lamb, 7 Cowen, R. 174; Banks v.
Eastin. 3 Martin, R. (N. S.) 291 ; Brigham v. Marean, 7 Pick. R. 40 ;
Lovell v. Evertson, 11 John. R. 52; Bragg v. Greenleaf, 14 Maine, R.
396 (Shepley, R.) ; Lowney v. Perham, 2 Appleton, R. 235. But see
contra, Thatcher v. Winslow, 5 Mass. R. 58 ; Sherwood v. Roys, 14
Pick. R. 172 ; Wilson v. Holmes, 5 Mass. R. 543, 545, per Parsons,
Chief Justice.
i Ibid. ; Story on Bills, § 198.
2 Fleckner v. Bank of U. States, 8 Wheat. 360, 361 ; Wild v. Passa-
maquoddy Bank, 3 Mason, R, 505. See also Minor v. Mechanics' Bank
of Alexandria, 1 Peters, R. 46, 70; Folger v. Chase, 18 Pick. R. 63;
Story on Agency, § 114; Hartford Bank-?;. Barry, 17 Mass. R. 94.
3 See Bank of Manchester v. Slason, 13 Verm. R. 334.
4 Fairfield v. Adams, 16 Pick. R. 3bl. It seems also, that in such a
» *
144 PROMISSORY NOTES. [CH. IV.
indorsement to the treasurer of the United States, in
his official character, will he deemed a transfer to the
government, and may he sued on hy the government in
its own name. 1 [But an attorney, to whom a Promis-
sory Note is committed for the purpose of collection hy
the payee, derives no authority, from the mere fact of
the employment, to indorse and transfer the Note, in
behalf of his client, to a third person, so as to enable
him to maintain an action for the benefit of the payee. 2 ]
§ 128. Promissory Notes may be non-negotiable, and
payable to a particular person only, or they may be pay-
able to bearer, or they may be payable to order. And
each of these cases, so far as the transfer by indorse-
ment is concerned, may require a distinct consideration.
Where a Promissory Note is not negotiable, if it is in-
dorsed by the payee, it will be binding upon him, and
may, as between him and his immediate indorsee, pos-
sess certain rights, liabilities, and obligations, capable of
being enforced against him. 3 But as between him and
subsequent holders, either no liabilities and obligations
at all may exist at law, or very different rights, or quali-
fied rights, and liabilities, and obligations only. 4 In
respect to the immediate indorsee of the payee of a
non-negotiable Note, the indorsement will ordinarily
case the party, who is cashier, may personally sue on the same indorse-
ment in his own name. McHenry v. Ridgeley, 2 Scamm. R. 309; S. P.
Porter v. Nekervis, 4 Rand. R. 359. See also, McConnell v. Thomas,
2 Scamm. R. 313.
1 Dugan v. U. States, 3 Wheat. R. 172.
2 White v. Hildreth, 13 N. Hamp. R. 104.
3 Story on Bills, § 60, 199, 202 ; Chitty on Bills, ch. 6, p. 265, 266,
(8th edit.) ; Bayley on Bills, ch. 5, § 1, p. 120, 121, (5th edit.) ; Hill v.
Lewis, 1 Salk. 132 ; White v. Low, 7 Barbour, Sup, Ct. R. 204.
4 Plimley v. Westley, 2 Bing. N. Cas. 249, 251 ; Penny v. Innes,
1 Cromp. Mees. & Rose. 439.
.***
OH. IV.] RIGHTS OF PARTIES ON TRANSFERS. 145
create the same liabilities and obligations, on the part
of the payee, as the indorsement of a negotiable Note. 1
1 Story on Bills, § 119, 199, 202 ; Bayley on Bills, ch. 5, § 1, p. 120,
121, (5th edit.) ; Chitty on Bills, ch. 6, § 1, p. 219, (8th edit.) ; Hill v.
Lewis, 1 Salk. 132; Josselyn v. Ames, 3 Mass. R. 274 ; Jones v. Fales,
4 Mass. R. 245; Sanger v. Stimpson, 8 Mass. R. 260; Jones v. Witter,
13 Mass. R. 305 ; 3 Kent, Coram. Lect. 44, p. 77, (5th edit.) and note;
Gadcomb v. Johnson, 1 Verm. R. 136 ; Upham v. Prince, 12 Mass. R.
14; Commercial Bank v. Wood, 7 Watts & Serg. 89; Svveetser v.
French, 2 Cushing, R. 310. But see Smallwood v. Vernon, 1 Str. R.
478 ; Plimley v. Westley, 2 Bing. N. Cas. 249, 251; Penny v. Innes,
1 Cromp. Mees. & Rose. 439; Parker v. Riddle, 11 Stanton, Ohio, R.
102. In the case of Seymour v. Van Slyck, 8 Wend. R. 403, 421, the
Supreme Court of New York held, that an indorsement by the payee of a
negotiable Note was equivalent to the making of a new Note ; and that is
a guaranty that the Note will be paid, and a direct and positive undertak-
ing on the part of the indorser to pay the Note to the indorsee, and not a
conditional one to pay the Note, if the maker does not upon demand and no-
tice. It does not appear to me that the authorities cited by the Court upon
that occasion, support the doctrine. The nearest is the case of Smallwood
v. Vernon, 1 Str. R. 478 ; and that is, upon its own circumstances, clearly-
distinguishable. The preceding authorities, above cited, are certainly the
other way. The case of Josselyn v. Ames, 3 Mass. R. 275, is difficult to
understand, from the imperfect manner in which it is stated in the report.
In Plimley v. Westley, 2 Bing. N. Cas. 249, the Court seemed to think
that the payee of a non-negotiable Note had no authority to indorse it ;
and the holder could neither sue the indorsee, nor the indorsee the maker.
Probably the Court meant, (for the report is obscure,) that the last holder
could not sue the immediate indorsee of the payee, he not being his own
immediate indorser, nor the first indorsee the maker. This seems regu-
larly correct. But the Court added, that, if there had been a second
stamp on the Note, the indorsement of the immediate indorser to the holder
might, as between them, make such indorser liable as the maker of a new
Note. But in Gwinnell v. Herbert, 5 Adolp. & Ellis, R. 436, held, that
the indorser of a negotiable Note does not stand in the situation of a maker
of a Note, even where he is not the payee thereof, and it is not indorsed
to him, and where, consequently, his indorsee cannot sue the original
maker. According to our law in such a case, he might, if there was a suffi-
cient consideration, be treated as a guarantor to his immediate indorsee.
See Post, § 133, and the authorities there cited. Mr. Chitty, in the 9th
edition of his work on Bills, Pt. 1, ch. 12, p. 528, 529, says: " There is,
however, one important distinction between Bills and Notes, as regards
PROM. NOTES. 13
/♦ .
146 PROMISSORY NOTES. [CH. IV.
In respect to every subsequent holder, no privity or
connection is, at law, created between the payee and
such holder, unless the payee, by his indorsement,
makes it expressly payable to his indorsee or order, or
he expressly promises to pay the Note to the holder in
consideration of the indorsement ; and, therefore, such
holder cannot, except under such circumstances, bring
any suit at law in his own name against the payee,
upon the dishonor of the Note. 1 Still, however, in
such a case, such holder is not without his remedy
the liability arising from an indorsement ; with respect to Bills of Exchange,
we have seen, that every indorser is in the nature of a new drawer, but
the indorser of a Promissory Note does not stand in the situation of maker
relatively to his indorsee ; nor can the indorsee of a Note declare against
his indorser as maker, even where the latter has indorsed a Note not pay-
able or indorsed to him, and where, consequently, his indorsee cannot sue
the original maker. The distinction between the two cases is obvious ; in
allowing the indorser of a Bill to be treated as a new drawer, the indorser's
liability is not altered ; it still remains secondary or collateral only ; but to
suffer the indorser of a Note to be charged as maker, would be at once
to render the indorser's liability primary and immediate, and to place him
in the situation of the acceptor of a Bill." For this, the author relies on
the language of the learned Courts in Gwinnell v. Herbert, 5 Adolp. &
Ellis, R. 441, where, indeed, the Court seem to have relied upon a sup-
posed distinction between the indorser of a Note, and the drawer or in-
dorser of a Bill. I agree, that the indorser of a Note cannot properly be
treated as the maker thereof, whether he be the payee or indorsee thereof,
or a third person. But I am unable to perceive, why he does not stand in
the same situation as the drawer or indorser of a Bill. In each case, the
indorsement creates a collateral liability only. The maker of a Note, and
the acceptor of a Bill, are the primary parties to pay the same. Every
indorsement upon an accepted Bill, is precisely, in effect, the same as an
indorsement of a Note ; and each imports the same liability to the holder.
It is a request to the maker or acceptor, to pay the amount to the holder,
and an agreement, upon its dishonor, at maturity, and due notice of the
dishonor, to pay the same to the holder. Why, then, is not the indorser
of a Note in the very predicament of the drawer or indorser of a Bill, as
to his liability upon such dishonor?
i Ibid.
*
CH. IV.] RIGHTS OF PARTIES ON TRANSFERS. 147
against the payee, and also against the maker. He
may ordinarily use the name of the payee against the
maker in an action at law, and that of the immediate
indorsee of the payee against the latter, in an action at
law to recover the debt. 1 And, in Equity, he may,
without question, maintain a suit in his own name
against the maker, and against the payee, and, indeed,
against every intermediate indorser between his imme-
diate indorser and the antecedent indorsers. 2
§ 129. The reason for this doctrine is, that every in-
dorsement operates in legal contemplation between the
parties thereto, as the drawing of a Bill of Exchange by
the indorser, in favor of the immediate indorsee. It is,
in fact, a request of the indorser, that the maker (who
stands in this respect very much in the situation of an
acceptor) would pay the amount to the indorsee, or to
any other holder, if the indorsement is not restrictive. 3
Indeed, it may be treated, with strict propriety, as an
authority given to the indorsee to receive the money
due on the Note, and also as an undertaking, that it
shall be paid to him upon due presentment ; and, there-
fore, as involving, in case of dishonor, and due notice
1 Story on Bills, § 60, 199 ; Bayley on Bills, ch. 5, § 1, p. 120, (5th
edit.) ; Jones v. Witter, 13 Mass. R. 305 ; Grover v. Grover, 24 Pick. R.
261 ; Story on Eq. Jurisp. § 1056-1057, a. But see Hammond v. Mes-
senger, 9 Sim. R. 327 ; Rose v. Clarke, 1 Younge & Coll. New R. 539,
545 ; Kimball v. Huntingdon, 10 Wend. R. 675.
2 Ibid.
3 Bayley on Bills, ch. 5, § 1, p. 120, 121 (5th edit.) ; Chitty on Bills,
ch. 6, p. 219 (8th edit.) ; Id. 226 ; Ballingalls v. Gloster, 3 East, R. 481 ;
Slacum v. Pomeroy, 6 Cranch, 221. See Smallwood v. Vernon, 1 Str. R.
478; Van Staphorst v. Pearce, 4 Mass. R. 258; Field v. Nickerson, 13
Mass. R. 131, 136; Story on Bills, § 107, 118, 119; Penny v. Innes, 1
Cromp. Mees. & Rose. 439. But see Gwinnell v. Herbert, 5 Adolp. &
Ellis, 436 ; Plimley v. Westley, 2 Bing. N. Cas. 249 ; Ante, § 128, note.
148 PROMISSORY NOTES. [CH. IV.
thereof, the ordinary responsibility of an indorser of ne-
gotiable paper. 1 But the same considerations do not
apply to a subsequent indorsee under the immediate
indorsee of the payee of a non-negotiable Note ; for the
like privity does not necessarily exist between them.
§ 130. There is, indeed, one exception to the general
rule above stated, and that is, where an assignment is
made by, or to, the sovereign or government, of a non-
negotiable instrument, or other debt or chose in action ;
for, in such a case, the indorsement or assignment by,
or to, the sovereign or government, creates the same
liabilities, as if the instrument were originally assigna-
ble. The reason is, that the principle of the Common
Law, which prohibits the assignment of choses in action,
is, that it shall not be the means of stirring up and
multiplying litigation between debtors and third per-
sons, or to enable the rich and powerful to oppress
those, who are in the unfortunate state of dependent
and embarrassed debtors. Such a reason is inapplica-
ble to the sovereign or government, who can never be
presumed to be the abettor, or minister, of any injustice
to the subjects, or citizens, and can have no interest,
but to act for the public benefit. 2
§ 131. In the Civil Law, and in the jurisprudence of
the modern commercial nations of Continental Europe,
there does not seem to have been any foundation for
such an objection to the assignment of debts ; for all
i Ibid.
2 Chitty on Bills, ch. 6, p. 219 (8th edit.) ; Id. p. 252; Lambert v,
Taylor, 4 Barn. & Cressw. 138, 150, 151 ; 2 Story on Eq. Jnrisp. § 1039,
1040; Co. Litt. 232 b, Butler's note (1) ; Prosser v. Edmonds, 1 Younge
& Coll. 499; Scafford v. Bulkley, 2 Ves. 170, 181 ; Miles v. Williams,
1 P. Will. 252; U. States v. Buford, 3 Peters, R. 30; U. States v.
White, 2 Hill, N. Y. R. 59.
CH. IV.] RIGHTS OF PARTIES ON TRANSFERS. 149
debts were, from an early period, allowed to be assigned,
if not formally, at least in legal effect ; and for the most
part, if not in all cases, they may be sued for in the
name of the assignee. 1 The Code of Justinian says ;
1 Pothier has stated the old French Law upon this subject (which does
not in substance probably differ from that of the other modern states of
Continental Europe) in very explicit terms, in his Treatise on the Contract
of Sale, of which an excellent Translation has been made by L. S. dish-
ing, Esq. The doctrines therein stated are in many respects so nearly
coincident with those maintained by our Courts of Equity, that I have
ventured to transcribe the following passages from Mr. Cushing's work.
" A credit being a personal right of the creditor, a right inherent in his
person, it cannot, considered only according to the subtlety of the law, be
transferred to another person, nor consequently be sold. It may well pass
to the heir of the creditor, because the heir is the successor of the person
and of all the personal rights of the deceased. But, in strictness of law,
it cannot pass to a third person ; for the debtor, being obliged towards a
certain person, cannot, by a transfer of the credit, which is not an act of
his, become obliged towards another. The jurisconsults have, neverthe-
less, invented a mode of transferring credits, without either the consent
or the intervention of the debtor. As the creditor may exercise against
his debtor, by a mandatary, as well as by himself, the action, which re-
sults from his credit. When he wishes to transfer his credit to a third
person, he makes such person his mandatary, to exercise his right of
action against the debtor ; and it is agreed between them, that the action
shall be exercised by the mandatary, in the name indeed of the mandator,
but at the risk and on the account of the mandatary, who shall retain for
himself all, that may be exacted of the debtor in consequence of the man-
date, without rendering any account thereof to the mandator. Such a
mandatary is called, by the jurisconsults, Procurator in rem suam, because
he exercises the mandate, not on account of the mandator, but on his
own. A mandate, made in this manner, is, as to its effect, a real transfer,
which the creditor makes of his credit ; and if he receives nothing from
the mandatary, for his consent, that the latter shall retain to his own use
what he may exact of the debtor, it is a donation ; if, for this authority,
he receives a sum of money of the mandatary, it is a sale of the credit.
From which it is established in practice, that credits may be transferred,
and may be given, sold, or disposed of by any other title ; and it is not
even necessary that the act which contains the transfer, should express the
mandate, in which, as has been explained, the transfer consists. The
transfer of an annuity or other credit, before notice of it is given to the
* 13*
150 PROMISSORY NOTES. fCH. IV
Nominis autem venditio (distinguishing "between the sale
of a debt, and the delegation or substitution of one
debtor, is what the sale of a corporeal thing is, before the delivery ; in, the
same manner, that the seller of a corporeal thing, until a delivery, remains
the possessor and proprietor of it, as has been established in another place.
So, until the assignee notifies the debtor of the assignment. made to him,
the assignor is not devested of the credit which he assigns. This is the
provision of art. 108 of the Custom of Paris : — 'A simple transfer does
not devest, and it is necessary to notify the party of the transfer, and to
furnish him with a copy of it.' From which, it follows, first, that, before
notice, the debtor may legally pay to the assignor his creditor ; and the
assignee has no action, in such case, except against the assignor, namely,
the action ex empto, ut prsestet ipsi habere licere ; and, consequently, that
he should remit to him the sum, which he is no longer able to exact of the
debtor, who has legally paid the debt to the assignor. Second , that before
notice, the creditors of the assignor may seize and arrest that, which is
due from the debtor, whose debt is assigned ; and they are preferred to the
assignee, who has not, before such seizure and arrest, given notice of the
assignment to him ; the assignee, in this case, is only entitled to his action
against the assignor, namely, the action ex empto, in order that the latter
praestet ipsi habere licere ; and, consequently, that he should report to him
a removal of the seizures and arrests, or pay him the sum, which, by rea-
son thereof, he is prevented from obtaining of the debtor. Third, that if the
assignor, after having transferred a credit to a first assignee, has the bad
faith to make a transfer of it to a second, who is more diligent than the
first, to give notice of his assignment to the debtor, the second assignee
will be preferred to the first, saving to the first his recourse against the
assignor. Though the assignee notifies to the debtor the assignment to
him, the assignor, in strictness of law, remains the creditor, notwilhstand-
ing the transer and notice ; and the credit continues to be in him. This
results from the principles established in the preceding article. But quoad
juris efTectus, the assignor is considered, by the notice of the transfer given
to the debtor, to be devested of the credit, which he assigns; and is no
longer regarded as the owner of it ; the assignee is considered to be so ;
and, therefore, the debtor cannot afterwards legally pay the assignor; and
creditors of the assignor cannot, from that time, seize and arrest the credit,
because it is no longer considered to belong to their debtor. Nevertheless,
as the assignee, even after notice of the transfer, is only the mandatary,
though in rem suam, of the assignor, in whose person, the credit, in truth,
resides; the debtor may oppose to the assignee a compensation of what
the assignor was indebted to him, before the notice of the assignment ;
which, however, does not prevent him from opposing also a compensation
OH. IV.] RIGHTS OF PARTIES ON TRANSFERS. 151
debtor for another for the same debt) et ignorante, vel
invito eo, adversus quern actioncs mandantur, contrahi sold. 1
And Heineccius, after remarking, that Bills of Exchange
are for the most part drawn, payable to a person or his
order, says, that although this form be omitted, yet an
indorsement thereof may have full effect, if the laws of
the particular country respecting exchange do not spe-
cially prohibit it ; because an assignment thereof may
be made without the knowledge, and against the will,
of the debtor ; and he refers to the passage in the Code
in proof of it. 2 But he adds, (which is certainly not
our law,) that if the bill be drawn payable to the order
of Titius, it is not to be paid to Titius, but to his
indorsee. Tunc enim Titio solvi non potest, sed ejus indos-
satario? The same general doctrine as to the assigna-
bility of Bills of Exchange, payable to a party, but not
of what the. assignee himself owes him; the assignee being himself, non
quidem ex juris subtilitate, sed juris effectu, creditor." Pothier on Sales,
by Gushing, n. 550, 555-559. The modern French Law has gotten rid
of the subtlety as to the suit being brought in the name of the assignor
upon contracts generally ; for it may now (whatever might have been the
case formerly) be brought in the name of the assignee, directly against
the debtor. See Troplong, Des Privil. et Hypoth. Tom. 1, n. 340-343 ;
Code Civ. of France, art. 2112 ; Id. 1689 - 1692 ; Troplong, De la Vente,
n. 879-882, n. 906, 913.
i Cod. Lib. 8, tit. 42, 1. 1 ; 1 Domat, B. 4, tit. 4, $ 3, 4.
2Heinecc.de Camb. cap. 2, §8; Id. cap. 3, §21-25. Heineccius,
in a note, says, that in Franconia and Leipsic, no assignment is of any va-
lidity, if the formula of its being payable to order is omitted. The pre-
sent law of France is the same, so far as the general negotiability of Bills
is concerned, and to give them circulation, unaffected by any equities be-
tween the payee and the debtor, as will be seen in the sequel. Pardessus,
Droit Comrn. Tom. 2, art. 339, p 360 ; Delvincourt, Instit. Droit Comm.
Tom. 1, Liv. 1, tit. 7, Pt. 2, p. 114, 115. Delvincourt says, that the right
of a simple Bill (not payable to order,) is transferable only by an act of
transfer made known to the debtor. See also, Merlin, R6pert. Letlre et
Billet de Change, § 4, 8, p. 196, 252, (edit. 1827.)
3 Heinecc. de Camb. cap. 2, § 8.
152 PROMISSORY NOTES. [CH. IV.
to Ms order, is affirmed in the Ordinance of France of
1673 (art. 12), as soon as the transfer is made known
to the drawee or debtor. 1 Indeed, the like doctrine
prevails now in France, not only in cases of Bills of
1 Jousse, Sur L'Ordin. 1673, art. 30, p. 123. The article, and Jousse's
commentary, are as follows: Art. 30, " Les Billets de Change, payables
a un particulier y nomme, ne seront reputez appartenir a. autre, encore qu'il
y eust un transport signifie, s'ils ne sont payables au porteur, ou a ordre.
Les Billets De Change. La disposition contenne en cet article ne doit pas
s'etendre aux autres billets, parce que suivant le droit commun on peut
disposer des billets et promesses par obligation et transport, et que le
transport, signifie saisit celui au profit de qui il est fait, suivant la
disposition de Particle 103 de la Coutume de Paris. La raison pour la-
quelle 1'Ordonnance deroge ici au droit commun, a 1'egard des billets de
change, payables a un particulier y nomme, et afin d'abolir l'usage des
transports et significations en cette matiere, qui est proprement de negoce,
et ou tout doit etre sommaire. Neanmoins en examinant plus particu-
lierement le sens de cet, article, il parait, que l'esprit de i'Ordon. n'est pas
d'abolir l'usage des transports des billets de change, qui ne sont point pay-
ables au porteur, ou a ordre : car il semble qu'on ne peut empecher un
particulier proprietaire d'un billet de cette espece de transferer la propriete
de ce billet a celui au profit de qui le transport aurait ete consenti. En
effet, si Ton fait attention, que l'esprit de 1'Ordonnance est de conserver
au debiteur, qui a consenti des billets payables a un particulier, les memes
exceptions contre les cessionnaires de ces billets, que celles que le debiteur
lui-meme aurait pu opposer au creancier, qui en etait originaireraent pro-
prietaire, sans distinguer, si la cession ou transport a ete signiflee ou non,
il sera aise de se convaincre, que 1'Ordonnance n'a jamais eu intention d'a-
bolir l'usage des cessions et transports en maitere de billets de change, qui
ne sont point payables au porteur ou a ordre, mais qu'elle a seulement en-
tendu marquer en cet article la difference, qu'il y a entre les billets paya-
bles a un particulier y nomme, et les billets payables au porteur ou a ordre.
Dans les billets payables au porteur ou a ordre, celui, qui en est le porteur,
n'a pas a craindre, que le debiteur puisse lui opposer aucune exception du
chef de son cedant, le porteur, quel qu'il soit, en etant le veritable propri-
etaire, ainsi que s'il avait ete originairement consenti en sa faveur. Mais
dans les billets payables a un particulier y nomme, le cessionnaire ne peut
jamais avoir plus de droit que ce particulier, et ne peut eviter par conse-
quent que toutes les exceptions, qui auront pu etre opposees a ce particu-
lier, ou cedant, ne puissent lui etre opposees a lui-meme. C'est dans ce
CH. IV.] RIGHTS OF PARTIES ON TRANSFERS. 153
Exchange, but of contracts generally ; so that the as-
signee may now sue therefor in his own name after the
assignment, subject, however, to all the equities, subsist-
ing between the parties before and at the time, when
the debtor has notice of the assignment. 1 In Scotland,
it has been long settled, that the words " or order " are
not necessary to make a Promissory Note negotiable by
meme sens que les articles 18 et 19 de ce titre distinguent au sujet du
paiement d'une lettre adhiree, si cette lettre est payable a un particuliere
y nomme, ou si elle est payable au porteur ou a ordre : le paiement dans
le premier cas pouvant &tre fait sans aucune precaution, en vertu d'une
seconde lettre ; au lieu que dans le second cas le paiement ne peut etre fait
que par Ordonnance du Juge, et en donnant caution."
1 Pardessus, Droit Comrn. Tom. 2, art. 313 ; Troplong de Priv. et Hy-
poth. Tom. 1 ; Troplong, De la Vente, n. 879 - 913 ; Code Civil of France,
art. 1689-1693 ; Id. art. 2112 ; Id. art. 1295 ; Locre, Esprit du Code de
Comm. Tom. 1, Liv. 1, tit. 8, p. 342 ; Pothier, De Vente, n. 551-560 ;
Story on Bills, § 19 ; 2 Story on Eq. Jurisp. § 1040, a. Mr. Chitty (on
Bills, ch. 6, p. 218, 8th edit. ; Id. Pt. 1, ch. 6, p. 196, 9th edit. 1840,)
says : " In France it is absolutely essential, that Bills be drawn expressly
payable to order, and they must not be payable to bearer ; and it appears,
that the Bills were not transferable in France by the Law Merchant ; but
by a particular ordinance." Mr. Chitty here probably alludes to the ordi-
nance of 1673, art. 30. Now, it is manifest from Jousse's commentary on
this very article, (Jousse, Sur L'Ordin. 1673, p. 123,) that the article is
not only an exception to the general law ; but that it does not restrain the
assignability of such instruments, but only leaves it open to all the equities
between the original parties. The contrary of which is true- as to Bills
of Exchange payable to order, which are not open to the like equities.
Pothier (De Change, n. 221, 222,) does not inculcate a different doctrine ;
but only suggests as one of the differences between Bills of Exchange and
Promissory Notes payable to order, that even the latter are not entitled to
the peculiar privileges of Bills, but are treated as mere simple Notes,
(simples billets,) when the maker is not a merchant or banker, or state
financier. Pardessus (Droit Comm. Tom. 2, art. 313) is to the same effect.
See also, Troplong, De la Vente, n. 879-913 ; Code Civil of France, art.
1689-1693; Id. art. 2112; Id. art. 1295; Locre, Esprit du Code De
Comm. Tom. 1, Liv. 1, tit. 8, p. 342; Pothier, De Vente, n. 551-560.
The modern Code of Commerce of France, (art. 110, 188,) seems to re-
quire that all Bills of Exchange and Promissory Notes, to have the privi-
leges appropriate to each, should be payable to order.
154 PROMISSORY NOTES. [CH. IV.
indorsement, and that a Note may be effectually in-
dorsed without them by the payee. 1
§ 132. Although a Note payable to bearer is, as we
have seen, transferable by mere delivery, it may also be
transferred by indorsement of the payee, or of any other
subsequent holder. In such a case, the indorser incurs
the same liabilities and obligations as the indorser of a
negotiable Note, payable to order, from many of which,
in the case of a mere transfer by delivery, he is exempt. 2
Where a Note is originally payable to bearer, and is in-
dorsed, it would seem, upon principle, that the holder
might, as against the maker, declare upon it as a bearer,
or as indorsee, at his election ; and this seems to be the
weight of authority, although the decisions are not, per-
haps, entirely reconcilable. 3 Where a Note is payable
to a fictitious person or order, (which is sometimes,
although rarely done,) and it is indorsed in the name of
such fictitious person, it will be deemed a Note payable
to bearer, as to all bona fide holders, without notice of
the fiction, and entitle them, as against the maker, and
all prior real indorsers, to the like remedy, as if the
Bill were payable to bearer. 4 It would be otherwise, if
1 Thomson on Bills, ch. 1, § 2, p. 85, (2d edit.) ; Id. ch. 3, p. 256 ;
3 Kent, Comm. Lect. 44, p. 77, note, (5th edit.)
2 Story on Bills, § 200; Bayley on Bills, ch. 5, § 1, p. 120, 121, (5th
edit.) ; Chitty on Bills, ch. 6, p. 219, 220, (8th edit.) ; Waynam v. Bend,
1 Camp. R. 175; Brush v. Reeves, 3 John. R. 439; Eccles. v. Ballard,
2 McCord, So. Car. R. 388; Wilbour v. Turner, 5 Pick. R. 526; Dole
v. Weeks, 4 Mass. R. 451 ; Gilbert v. Nantucket Bank, 5 Mass. R. 97 ;
Truesdell v. Thompson, 12 Metcalf, R. 565 ; Tillman v. Ailles, 5 Smedes
& Marshall, R. 373.
3 See Bayley on Bills, ch. 11, p. 466, 467, (5th edit.) ; Chitty on Bills,
ch. 6, § 1, p. 220, (8th edit.) ; 3 Kent. Comm. Lect. 44, p. 78, (5th edit.) ;
Waynam v. Bend, 1 Camp. R. 175; Wilbour v. Turner, 5 Pick. R. 526.
4 Chitty on Bills, ch. 5, p. 178, 179, (8th edit.) ; Id. ch. 6, p. 252 ;
CH. IV.] RIGHTS OF PARTIES ON TRANSFERS. 155
the holders had notice of the fiction, when the Bill was
received. 1
§ 133. In some cases it is a matter of considerable
nicety, to decide in what character a party stands upon
a Promissory Note, in virtue of his indorsement thereof.
It is plain, that if he is the payee of the Note, whether
negotiable or not, he is (as has been already stated 2 ) to
be deemed regularly liable as an indorser. But, sup-
pose he is not the payee of the Note, but he indorses
it, what is the nature and effect of such an indorsement ?
If he signs it at the time when the Note is made, then
he will ordinarily be deemed a guarantor of the Note
upon the footing of the original consideration; 3 and if
he indorses it subsequently, not being a regular indor-
see from or under any of the antecedent parties, he will
in like manner, still be deemed a guarantor, if there be
a sufficient consideration for his indorsement ; but not
otherwise. 4
Bayley on Bills, ch. 1, § 10, p. 31, 32, (5th edit.) ; Id. ch. 9, p. 383;
3 Kent, Comm. Lect. 44, p. 78, (5th edit,) ; Plets v. Johnson, 3 Hill, N.
Y. R. 112 ; Story on Bills, § 200.
i Benet v. Farnell, 1 Camp. R. 130 ; Id. p. 133, note ; Id. 180, b, c,
§ 9 of Addenda ; Hunter v. Jeffrey, Peake, Add'l Cas. 146 ; Cooper v.
Meyer, 10 Barn. & Cressw. 469.
2 Ante, § 128.
3 Ante, § 59, and note ; Post, § 463 - 473 ; 3 Kent, Comm. Lect. 44,
p. 122, (5th edit.) ; Leonard v. Vredenburgh, 8 John. R. 29. See Bailey
v. Freeman, 11 John. R. 221; Nelson v. Dubois, 13 John. R. 175; De
Wolf v. Rabaud, 1 Peters, R. 476 ; Hunt v. Adams, 5 Mass. R. 358 ;
Oxford Bank v. Haynes, 8 Pick. R. 423.
4 Chitty on Bills, ch. 6, p. 266, (8th edit.) ; Morley v. Boothby, 3 Bing.
R. 107. See also, Herrick v. Carman, 12 John. R. 159 ; Tillman v.
Wheeler, 17 John. R. 326 ; Aldridge v. Turner, 1 Gill & John. R. 427 ;
Lamourieux v. Hewit, 5 Wend. R. 307; Longley v, Griggs, 10 Pick. R.
121 ; Watson v. McLaren, 19 Wend. R. 557 ; Tenney v. Prince, 4 Pick.
R. 385 ; Oxford Bank v. Haynes, 8 Pick. R. 423 ; Seabury v. Hunger-
ford, 2 Hill, N. Y. R. 80 ; Miller v. Gaston, 2 Hill, N. Y. R. 188 ; Hall
156 PROMISSORY NOTES. [CH. IV.
§ 134. Where a person makes an indorsement in blank
on a Bill, it will not be construed to be a guaranty, un-
less where such a construction is indispensable to give
some effect to the indorsement, and to prevent an entire
failure of the express, or presumed contract. Thus, if
a Bill be negotiable, and the payee should indorse it in
blank, the indorsement will not inure as a guaranty, but
simply as the contract of an indorser. The like rule
will prevail if the indorsement is made by any other
person than the payee ; for he may be well deemed as
intending to stand in the character of a second indorser
after the payee, although he was privy to the original
consideration between the drawer and the payee, and
indorsed it for the accommodation of the drawer. 1 But
it would have been otherwise, if the Bill had not been
negotiable ; for, then, the indorsement would be utterly
unavailable, unless as a guaranty. 2
§ 135. Passing from these considerations, which apply
to peculiar cases, let us now consider the general rights,
duties, and obligations arising from the indorsement of
Promissory Notes, payable to a person, or his order.
Indorsements may be in blank or in full, restrictive or
general, qualified or conditional ; but of these we shall
speak hereafter. 3 At present, what will be here said
is applicable to all indorsements, which are either in
blank or full, and are, of course, payable to the in-
v. Newcomb, 3 Hill, N. Y. R. 232 ; Sylvester v. Dowries, 20 Vermont,
R. 355. See Post, § 458 to 461.
i Seabury v. Hungerford, 2 Hill, N. Y. R. 84 ; Hall v. Newcomb,
3 Hill, N. Y. R. 233 ; Ellis v. Brown, 6 Barbour, Sup. Ct. R. 282 ; Tay-
lor v. M'Cune, 1 Jones, Penn. R. 461 ; Crozerv. Chambers, 1 Spencer, N.
Jersey, R. 256 ; Fear v. Dunlap, 1 Greene, Iowa, R. 334.
2 Ibid. ; Story on Bills, § 215.
3 Post, § 138.
CH. IV.] RIGHTS OF PARTIES ON TRANSFERS. 157
dorsee or order generally. The indorsement of a Note,
in contemplation of law, amounts to a contract on the
part of the indorser with and in favor of the indorsee
and every subsequent holder, to whom the Note is
transferred; (1.) That the instrument itself and the
antecedent signatures thereon are genuine ; 1 (2.) That
he, the indorser, has a good title to the instrument ;
(3.) That he is competent to bind himself by the in-
dorsement, as indorser ; (4.) That the maker is compe-
tent to bind himself to the payment, and will, upon
due presentment of the Note, pay it at maturity, or
when it is due ; (5.) That if, when duly presented, it is
not paid by the maker, he, the indorser, will, upon due
and reasonable notice given him of the dishonor, pay
the same to the indorsee or other holder. 2 The French
i Post, $ 380, 387.
2 Story on Bills, § 108-111, 119, 127, 225, 262, and the authorities
there cited; Chitty on Bills, ch. 6, p. 269, 270, (8th edit.) ; Id. Pt. 2,
ch. 5, p. 635, 636 ; Jones v. Ryde, 5 Taunt. 488; Free v. Hawkins, Holt,
N. P. R. 550; Bruce v. Bruce, 1 Marshall, (Eng.) R. 165; Murray v.
Judah, 6 Cowen, R. 484; Burrill v. Smith, 7 Pick. R. 291, 294, 295.
These I conceive to be the true implications of contracts resulting from
the act of indorsement of a Promissory Note. Mr. Bayley has not ex-
pressed himself with his usual clearness and precision on this subject. In
Bayley on Bills, ch. 1, § 15, p. 43, (5th edit.) it is said : — " The act of
drawing a Bill implies an undertaking from the drawer to the payee, and
to every other person to whom the Bill may afterwards be transferred, that
the drawee is a person capable of making himself responsible for its pay-
ment ; that he shall, if applied to for that purpose, express in writing upon
the Bill an undertaking to pay it when it shall become payable, and that
he shall then pay it ; and subjects the drawer, on a failure in any of these
particulars, to an action at the suit of the payee or holder. The making
of a Note is an express engagement of the payee or person to whom it
shall be transferred, to pay the money mentioned therein, according to its
tenor." And again, in ch. 5, § 3, p. 169, (5th edit.) : — " The indorse-
ment of a Bill or Note implies an undertaking from the indorser to the
person in whose favor it is made, and to every other person to whom the
Bill or Note may afterwards be transferred, exactly similar to that which
is implied by drawing a Bill; except that in the case of a Note, the stipu-
prom. notes. 14
158 PROMISSORY NOTES. [CH. IV.
Law, with some not very important distinctions, imports
similar obligations on the part of the payee, and every
lations with respect to the drawer's responsibility and undertaking do not
apply ; and a transfer by delivery only, if made on account of an antece-
dent debt, implies a similar undertaking from the person making it, to the
person in whose favor it is made. And a transfer by delivery, where the
Bill or Note is sold, may imply that it is a genuine Bill. An indorsement is
no warranty, that the prior indorsements are genuine. At least it is not,
in the case of a person who has the same means of judging as the indorser
and who uses those means and judges for himself." Is not there a mis^
take in this last passage of drawer's," and should it not be drawee's?'
Mr. Chitty seems to think otherwise ; but I think, that the authorities cited
by him do not support him. His language is : — " It has been contended,
that an indorsement is equivalent to a warranty, that the prior indorsements
were made by persons having competent authority. But the Court seemed
to deny that doctrine ; and, though an indorsement admits all prior indorse-
ments to have been, in fact, duly made, yet an indorser, by his indorse-
ment, merely engages, that the drawee will pay, or, that he, the indorser,
will, on his default, and due notice thereof, pay the same, and which is the
extent and limit of his implied contract." Chitty on Bills, ch. 6, p. 266,
(8th edit. 1833.) He cites East India Company v. Tritton, 3 Barn. &
Cressw. 280, and the opinion of Chambre, J. in Smith v. Mercer, 6 Taunt.
R. 83. The former case was decided upon an independent ground, that
the party accepted the Bill, with a knowledge of what the agent's author-
ity was, and mistook its legal effect. The latter turned upon the point,
that the Bill was paid by the plaintiff, as agent of the supposed acceptor,
whose acceptance was forged; and both parties were equally innocent;
and the plaintiff's name was not on the Bill. In Bayley on Bills, ch. 5,
p. 170, (5th edit. 1833,) it is laid down, that " An indorsement is no war-
ranty, that the prior indorsements are genuine." But for this position, the
sole reliance is on the case of the East India Company v. Tritton. In the
case of Jones v. Ryde, 5 Taunt. R. 488, there was a forgery, by altering
the Bill from £800 to £1800. The Court held, that the plaintiff, who
had sold the Bill as one for £1800, and who had paid the amount of the
difference to his vendee, (1000,) was entitled to recover, from his own ven-
dor, the like amount. In Lambert v. Pack, 1 Salk. 127 ; Critchlow v.
Parry, 2 Camp. 182 ; Free v. Hawkins, Holt, N. P. R. 550, it was de-
cided, that an indorsement admitted the signatures of the drawer and other
indorsers. If so, does it not necessarily admit the genuineness thereof?
See Chitty on Bills, Pt. 2, ch. 5, p. 635, 636, (8th edit. 1833.) In the
French Law, Pardessus says, that the indorser warrants, with the other
persons whose names are on the Bill, the genuineness of the Bill, (la verite
de la Lettre.) Pardessus, Droit Comm. Tom. 2, art. 347. Mr. Chief
Justice Marshall, in his opinion in the great case of Ogden v. Saunders,
CH. IV.] RIGHTS OF PARTIES ON TRANSFERS. 159
subsequent indorsee, to the holder - and, indeed, it de-
clares all the parties thereto, whether makers or indors-
ers, jointly and severally bound (in solido) as guarantors
or sureties to the holder for the due payment of the
Note. 1
(12 Wheat, R. 213, 341,) has expounded, in a masterly manner, the true
foundation of the implications resulting by law from the drawing and in-
dorsing of negotiable instruments. He says : " The liability of the drawer
of a Bill of Exchange stands upon the same principle with every other
implied contract. He has received the money of the person in whose favor
the Bill is drawn, and promises, that it shall be returned by the drawee.
If the drawee fail to pay the Bill, then the promise of the drawer is broken,
and for this breach of contract he is liable. The same principle applies to
the indorser. His contract is not written, but his name is evidence of his
promise, that the Bill shall be paid, and of his having received value for it.
He is, in effect, a new drawer, and has made a new contract. The law
does not require that this contract shall be in writing ; and, in determining
what evidence shall be sufficient to prove it, does not introduce new condi-
tions not actually made by the parties. The same reasoning applies to the
principle which requires notice. The original contract is not written at
large. It is founded on the acts of the parties, and its extent is measured
by those acts. A. draws on B. in favor of C. for value received. The
Bill is evidence that he has received value, and has promised that it shall
be paid. He has funds in the hands of the drawer, and has a right to
expect that his promise will be performed. He has also a right* to expect
notice of its non-performance, because his conduct may be materially in-
fluenced by this failure of the drawee. He ought to have notice that his
Bill is disgraced, because this notice enables him to take measures for his
own security. It is reasonable that he should stipulate for this notice, and
the law presumes that he did stipulate for it. A great mass of human trans-
actions depends upon implied contracts ; upon contracts which are not writ-
ten, but which grow out of the acts of the parties. In such cases, the parties
are supposed to have made those stipulations, which, as honest, fair, and
just men, they ought to have made. When the law assumes that they
have made these stipulations, it does not vary their contract, or introduce
new terms into it, but declares that certain acts, unexplained by compact,
impose certain duties, and that the parties had stipulated for their perform-
ance. The difference is obvious between this and the introduction of a
new condition into a contract drawn out in writing, in which the parties
have expressed every thing that is to be done by either."
1 Code de Comm. art. 141, 187 ; Pardessus, Droit Comm. Tom. 2, art.
347 ; Pothier, De Change, n. 61-63.
160 PROMISSORY NOTES. [CH. IV.
§ 136. Similar obligations exist, by the foreign law,
between the indorser and every subsequent holder of a
Promissory Note, as exist between the drawer and the
payee of a Bill of Exchange. Thus, Heineccius says :
Is, qui cambium alicui ita cessit, id valutam a cessionario
receperit, hide omnino semper ohligcdus est, adeoque cessio-
narius vel indossatarius actionem habet adversus indossantem
ad recuperandam sortem, proxeneticum, damna, et impensas,
modo protestationem rite interposuerit?
§ 137. One consequence of the doctrine, that by a
blank indorsement the Note will pass from and by mere
delivery, is, that, if the Note is transmitted to an agent
for the purpose of collection or negotiation, he may
either fill up the blank, and make it payable to himself
or he may fill it up as agent of his principal, in the name
of a third person. In the former case, he may sue, as
owner, upon the Note, or transfer it to a third person.
In the latter, the indorsee will take it without any repon-
sibility whatever of the agent. 2 Another consequence
of this doctrine is, that, if the Note should, after such
blank indorsement, be lost, or stolen, or fraudulently
misapplied, any person, who should subsequently become
the holder of it, bona fide, for a valuable consideration,
without notice, would be entitled to recover the amount
thereof, and hold the same against the rights of the
owner at the time of the loss or theft. 3
1 Heinecc. de Carnb. cap. 6, § 7 ; Story on Bills, § 116.
2 Clark v. Pigot, 1 Salk. R. 126; 12 Mod. 192; Story on Bills, § 198,
224.
3 Ibid. ; Marston v. Allen, 8 Mees. & Wels. 494, 504 ; Bayley on Bills,
ch. 5, § 2, p. 129 - 131, (5th edit. 1830) ; Anon. 1 Ld. Rayrn. 738, 1 Salk.
R. 126 ; 3 Salk. R. 7 ; Miller v. Race, 1 BuVr. R. 452 ; Grant Vaughan,
3 Burr. R. 1516; Chitty on Bills, ch. 6, p. 277, (8th edit. 1833); Id.
ch. 9, p. 429 ; Story on Bills, § 207.
05. IV.] RIGHTS OF PARTIES ON TRANSFERS.
161
§ 138. Having thus seen what are the rights, duties,
and obligations of indorsers, in cases of general indorse-
ments, let us now proceed to the consideration of the
different sorts of indorsements, and the different modes
in which transfers may be made of Promissory Notes.
Indorsements may be in blank, or full, general, or re-
strictive, qualified, conditional, or absolute. 1 An indorse-
ment is said to be in blank, when the name of the
indorser is simply written on the back of the Note,
leaving a blank over it for the insertion of the name of
1 Mr. Chitty has placed in his text, (Chitty on Bills, ch. 6, p. 250, 251,
8th edit.) certain forms of indorsements applicable to various cases, which
I here insert, as illustrative of my own text. "James Atkins," in all
these forms, is supposed to be, solely, or with his partners, payee and first
indorser.
MODES OR FORMS OF INDORSEMENTS AND TRANSFERS.
1 . First indorsement by drawer or payee
in blank.
"James Atkins."
2. Tlie like by a partner.
"Atkins & Co."
or,
1 For self and Thompson,
'• James Allans."
3. The Me by an agent.
" Per procuration James Atkins,
"John Adams."
or,
" As agent for James Atkins,
"John Adams."
4. Qualified indorsement to avoid per-
sonal Liability,
"James Atkins,
" sans recotirs."
or,
" James Atkins, with intent only to
transfer my interest, and not to be sub-
ject to any liability in case of non-accept-
ance or non-payment."
5. Indorsement in full, or special.
" Pay John Holloway, or order,
" James Atkins."
6. Restrictive indorsement in favor of
indorser.
" Pay John Holloway for my use,
"James Atkins."
or,
" Pay John Holloway for my account,
"James Atkins."
7. Restrictive indorsement in favor of
indorsee, or a particular person only.
"Pay to I. S. only,
"James Atkins-"
or,
"The within must be credited to A. B.,
" James Atkins."
8. Indorsement of a foreign Bill, dated,
stating name of indorsee, and value, and
au besoin, and sans protet.
" Payee La Fayette freres, ou ordre,
valeur recue en argent, (or ' en marchan-
dises,' or ' en compte,')
" James Atkins.
"A Londre,
"18th Juin, A. D. 1831.
" Au besoin chez Messrs. - ■ ,
" Rue , Paris.
1 ' Retour sans Protet."
14*
162 PROMISSORY NOTES. [CH. IV.
the indorsee, or of any subsequent holder. 1 In such a
case, while the indorsement continues blank, the Note
may be passed by mere delivery, exactly as if it were
payable to bearer, and the indorsee, or other holder, is
understood to have full authority personally to demand
payment of it, or to make it payable, at his pleasure, to
himself, or to any other person, or his order. 9 But he is
not at liberty to write over the blank indorsement any
words, which shall change the liability, created by law,
upon the indorser, or at least none, which shall not be in
exact conformity to the agreement under which the in-
dorsement was made by the indorser to the indorsee. 3
§ 139. An indorsement is said to be a full indorse-
ment, when it mentions the name of the person, in
whose favor it is made. 4 The ordinary form of a full
indorsement is, "pay to A. B. or order"; but, if it be,
" pay to A. B." it is deemed a general indorsement, and
payable to him or his order, and the latter words may
be added. 5 In order to make it restrictive, other words
i Story on Bills, § 206 ; Bayley on Bills, ch. 5, § 1, p. 123, 124, (5th
edit.)
2 Bayley on Bills, ch. 5, § 1, p. 123, 124, (5th edit.) ; Story on Bills,
$207; Chitty on Bills, ch 6, p. 253,255-257, (8th edit.); Peacock
v. Rhodes, Doug. R. 633, 636 ; Marston v. Allen, 8 Mees. & Wels.
494, 504; 3 Kent, Comm. Lect. 44, p. 89, (5th edit.) ; Evans v. Gee,
11 Peters, R. 80 ; Lovell v. Evertson, 11 John. R. 52 ; Seabury v. Hung-
erford, 2 Hill, N. Y. R. 86 ; Hall v. Nevvcomb, 3 Hall, N. Y. R. 2.32 ;
Little v. O'Brien, 9 Mass. R. 423 ; 3 Kent. Comm. Lect. 44, p. 77, (5th
edit.) ; Cruchley v. Clarance, 2 Maule & Selw. 90; Atwood v. Griffin,
Ryan & Mood. R. 423 ; Edie v. East India Co. 2 Burr. 1216.
STenney v. Prince, 4 Pick. 385; Central Bank v. Davis, 19 Pick. R.
373, 376 ; Nevins v. De Grand, 15 Mass. R. 436 ; Blakely v. Grant,
6 Mass. R. 386.
4 Bayley on Bills, ch. 5, § 1, p. 123, (5th edit.) ; Chitty on Bills, ch.
6, p. 253, 257, (8th edit.)
5 Bayley on Bills, ch. 5, § 1, p. 128, (5th edit.) ; Chitty on Bills, ch. 6,
p. 257, 258, (8th edit.) ; More v. Manning, Com. R. 311 ; Story on Bills,
CH. IV.] RIGHTS OF PARTIES ON TRANSFERS. 163
must be added, as, for example, (as we shall presently
see,) u pay to A. B. only." When an indorsement is
made in full, the indorsee can transfer his interest in it
only by his own indorsement in writing thereon. 1 But,
while the first indorsement remains blank, the Note, as
against the maker and the first indorser, is transferable
by mere delivery, notwithstanding it may have subse-
quent full indorsements, if not restrictive thereof. 2 But,
even if the first indorsement be full, and not restrictive,
and it is afterwards indorsed by the indorsee, or by any
subsequent regular holder, in blank, any subsequent
holder may take the same by mere delivery, and make
himself the immediate indorser upon the blank indorse-
ment, by filling up the blank in his own name. 3 It is
not desirable, however, where there are successive in-
dorsements in blank on the Note, that the holder should
fill up any of the early indorsements in his own name,
as he may thereby discharge the subsequent indorsers
from all responsibility on the Note, unless, indeed, he
should be unable, when a suit is to be brought upon the
dishonor of the Note, to prove the signatures of the in-
termediate indorsers. 4
§ 206, 210 ; Acheson v. Fountain, 1 Str. R. 557 ; Bull. Nisi Prius, 275 ;
Edie v. East India Co. 1 W. Black. R. 295 ; 2 Burr. 1216 ; Hodges v.
Adams, 19 Vermont, R. 74.
1 Chitty on Bills, ch. 6, p. 253, (8th edit.) ; Story on Bills, § 208.
2 Bayley on Bills, ch. 5, § 1, p. 124, 125, (5th edit.) ; Chitty on Bills,
ch. 6, p. 253, 255-257, (8th edit.) ; Story on Bills, § 207. See Smith
v. Clarke, Peake, R. 225 ; 1 Esp. R. 180 ; Walker v. McDonald,
2 Welsby, Hurlstone & Gordon, 527.
3 Chitty on Bills, ch. 6, p. 255, 256 (8th edit.) See Thompson v.
Robertson, 4 John. R. 27 ; Story on Bills, § 207, 208.
4 Story on Bills, § 207, § 208. — There are some advantages and some
disadvantages, which practically may occur in either way. A good pleader
would undoubtedly put into the declaration different counts, deducing title
in different ways, according to the facts, and his means of proving them.
164 PROMISSORY NOTES. [CH. IV.
§ 140. By the Law of France, in order to pass a valid
title to a Promissory Note, to the indorsee, or holder, it
is essential, that the indorsement should be subscribed
by the indorser ; that it should be dated truly (and not
antedated) ; that it should be expressed to be for value
received ; and that the name of •the person, to whose
order it is payable, should be mentioned. 1 When an in-
dorsement contains all these particulars, it is called a
regular indorsement, and the title will thereby pass to
the indorsee. 2 If the indorsement be not attended with
these formalities, it is called an irregular indorsement,
and will only operate as a simple procuration to the in-
dorsee, giving him authority to receive the contents. 3 A
blank indorsement, therefore, is treated as an irregular
indorsement, and will not transfer the property to the
indorsee or holder, unless, indeed, the imperfection is
cured by the indorser, before it has become the subject
Thus, if he could prove only the signature of the first indorser, he would
rely on a count stating the plaintiff to be his immediate indorsee. If he
could prove all the signatures of all the indorsers, he ought to have a count
in his declaration founded upon all of them. For, if the plaintiff should
elect to recover upon an early blank indorsement, he might thereby dis-
charge all the subsequent indorsers, or waive any remedy against them.
This might be a serious inconvenience to him, if there should be any doubt
of the insolvency of such early indorser. Great care and consideration are,
therefore, necessary to be observed in all complicated cases of this sort, if
the holder means to rely upon the responsibility of all the indorsers. See
Bayley on Bills, ch. 11, p. 464, 467, (5th edit. 1830). See Chitty on
Bills, Pt. 2, ch. 5, p. 628-631 (8th edit. 1833) ; Id. p. 636 ; Cocks v.
Borradaile, cited Chitty on Bills, 631, note (/) ; Chaters v. Bell, 4 Esp. R.
210. See, also, Story on Bills, § 190.
i Code de Comm. art. 136-139; Pothier, De Change, n. 38-40;
Jousse, Sur L'Ord. 1673, tit. 5, art. 23.
2 Pardessus, Droit Comm. Tom. 2, art. 343-350 ; Ante, § 131.
3 Code de Comm. art. 138 ; Pardessus, Droit Comm. art. 343, 353 - 355 ;
Chitty on Bills, ch. 6, p. 251, (8th edit. 1833) ; Pothier, De Change, n.
38, 39.
CH. IV.] RIGHTS OF PARTIES ON TRANSFERS. 165
of some notarial or public act, or before the indorser has
become incapable. 1 Still, a blank indorsement is not
without effect in France ; for, if the Note has been in-
dorsed in blank, and it is then lost or stolen, and the
blank is filled up in a false or forged name, and the
maker should, without notice of the fact, pay the Note
to the holder, he would be protected in so doing. 2
Blank indorsements seem also prohibited in many other
of the continental nations of Europe. Heineccius on
this subject, says : " Nee minus notari meretur, leges cam-
Males tantum non omnes oh innwneras fraudes prohibere
cessiones, cjxice. solo siibscrijrto nomine fiunt, ac proinde
vocantur Indossamenta in bianco. Ex his ne actio quidem
datur, nisi ante frceseniationem nomen indossatarii ah in-
dossanie inscriptum sit" 3
1 Pardessus, Droit Comm. Tom. 2, art. 353, 354; Pothier, De Change,
n. 41 ; Trimbey v. Vignier, 1 Bing. N. Cas. 151 ; Ante, § 2, 42.
2 Pardessus, Droit Comm. Tom. 2, art. 446, 455 ; Ante, § 2, 42.
3 Heinecc. de Camb. cap. 2, § 11 ; Id. § 10; Story on Bills, § 205.-—
The remarks of Mr. Professor Mittermeier on this subject are equally phi-
losophical and striking. " L'endossement en blanc merite une attention
particuliere. Un fait digne de remarque, e'est que, nonobstant les dispo-
sitions des articles 137 et 138, il se fait en France un grand nombre d'en-
dossements en blanc, dont les auteurs ont cependant l'intention de transfe-
rer la propriete de la Lettre de Change. En Angleterre et aux Etats
Unis, les commer^ants n'ont jamais eleve aucun doute sur la validite d'un
endossement en blanc, et les lois des Pays-Bas et du Danemark le recon-
naissent formellement comme -valable. Aux termes de la nouvelle loi
hongroise, un endossement complet ne peut etre attaque sous le pretexte
qu'il a ete donne en blanc et rempli ensuite. La loi du royaume de Saxe,
en date du 18 Juillet, 1840, reconnait egalement la validite de l'endosse-
ment en blanc. D'apres le projet prepare pour le royaume de Wurtem-
berg, l'endossement en blanc peut etre donne par la simple signature de
1'endosseur, et cet endossement transmet la propriete de la Lettre de
Change. Le projet autrichien admet de meme la validite de cet endosse-
ment. Le projet prussien de 1838 declare, a la verite, que l'endossement
en blanc ne vaut que comme procuration ; mais les redacteurs des motifs
annexes a ce projet ajoutent que plusieurs corporations de commercants
ont fait remarquer que les endossements en blanc sont indispensables au
166 PROMISSORY NOTES. [CH. IV.
§ 141. An indorsement is said to be general, or abso-
lute, when, it is in blank, or rilled up payable to the
commerce ; que souvent ils sont employes pour mettre en gage une Lettre
de Change avant l'echeance ; et qu'on peut admettre comme regie que le
signataire de l'endossement en blanc entend donner au porteur le droit de
le remplier. Lors de la reception du Code de Commerce francais dans le
grand-duche de Bade, le legislateur a fait une addition a Particle 138, por-
tant defense au porteur d'un endossement en blanc, de le remplir. Cet
expose comparatif des diverses legislations en matiere d'endossements en
blanc, porte a conclure qu'il y a toujours imprudence ou legerete de la part
du legislateur, lorsqu'il neglige d'appeler a son aide l'experience des hom-
ines pratiques et qui ont pu, dans l'usage quotidien, apprecier le merite et
les inconvenients d'une disposition. On ne saurait douter que deja a une
epoque reculee, et aussitot que l'institution des endossements eut pris quel-
ques developpements, les endossements en blanc n'aient ete d'un usage
general dans les grandes villes de commerce, parce que cette forme d 'en-
dossement etait conforme a la veritable nature de la Lettre de Change, qui
est de former un titre susceptible d'une circulation rapide et analogue a
eelle du papier-monnaie. La proscription des endossements en blanc, ou
la disposition qu'ils ne vaudront que comme procuration, est le resultat,
d'une part, de 1'application, a la Lettre de Change, des principes relatifs a
la cession et a la necessite de justifier de la proprieLe du titre ; d'autre part
de la crainte des abus et dangers auxquels les endossements en blanc peu-
vent donner lieu. Le legislateur oublia que l'inter&t des relations com-
merciales exige 1'application d'endossements en blanc, et que ces endosse-
ments font accroitre le credit de la Lettre de Change ; en effet, par ce
moyen, celle-ci obtient une circulation plus rapide, puisque les personnes
par les mains desquelles elle passe par l'effet d'endossements en blanc ne
se soumettent pas a l'obligation de garantie et sont, par suite, plus dispo-
sees a entrer dans les operations de change. Celui qui fait escompter en
blane une Lettre de Change en conserve la propriete, et les perils sont a
ses risques ; tandis que si l'endossement etait rempli, les perils eventuels
seraient aux risques de l'escompteur. Ainsi s'explique pourquoi les auteurs
qui se sont penetres des veritables besoins du droit de change, par exemple
M. Einert, insistent sur la necessite de maintenir l'endossement en blanc.
En France, nonobstant les dispositions qui considerent cet endossement
comme une simple procuration, en lui refusant l'efFet d'operer le transport
de la propriete, il est d'un usage general, d'apres le temoignage de tous
les, auteurs, et sans qu'on l'emploie dans un but de fraude ; des juriscon-
sultes estimables, par exemple M. Horson, reconnaissent que l'usage du
commerce a deroge a la loi. La jurisprudence des tribunaux francais s'est
declaree en faveur de l'usage ; car elle admet que l'endossement en blanc
produit les effets d'un endossement parfait, lorsque le porteur Justine qu'il
CH. IV.] RIGHTS OF PARTIES ON TRANSFERS. 167
indorsee or his order, without any restrictive or quali-
fying or conditional words. An indorsement is restrict-
en a fourni la valeur, et que le porteur d'un endossement en blanc peut
transferer valablement a un tiers la propriete de la Lettre de Change. En
examinant, sous le rapport legislatif, s'il y a lieu ou non d'admettre l'en-
dossement en blanc, on a ordinairement confondu deux questions distinctes ;
celie de savoir si le porteur peut 6tre contrait de se contenter de cet en-
dossement, et celle de savior si la loi doit sanctionner la convention des
contractants qui sont d'accord d'employer cette espece d'endossement'? II
faut repondre negativement a la premiere question, et affirmativement a la
seconde. A la verite, le prejudice dont le detenteur d'un endossement en
blanc est menace, peut determiner un negociant a refuser de s'en charger ;
mais la possibility de ce prejudice possible ne saurait engager le legislateur
a interdire un usage qui, depuis des siecles, a offert des advantages aux
commercants ; il doit s'abstenir d'autant plus de prononcer une prohi-
bition, qu'elle peut etre plus facilement eludee. En effet, souvent le de-
tenteur d'un endossement en blanc le remplit avant d'en faire usage, et on
ne saurait lui defendre d'operer ce complement. A Leipzig, ou la loi avait
generalement interdit l'endossement en blanc, l'usage s'en conserva cepen-
dant, et une jurisprudence bien entendue reconnut au porteur le droit de
remplir cet endossement. Nous ajouterons une derniere consideration. Si
le legislateur veut etre consequent, il ne doit point s'arreter a moitie che-
min ; il ne doit point se borner a reconnaitre la validite de l'endossement
en blanc dans le cas ou il aurait ete rempli plus tard ; il doit egalement
statuer sur la question de savoir a qui appartient le droit de remplir l'en-
dossement. En effet, si Ton exige que ce complement ne puisse etre
effectue que par l'endosseur lui-meme, auteur de l'endossement en" blanc, il
sera souvent impossible de satisfaire a. cette prescription. Ainsi', lorsqu'un
negociant de Paris re<;oit, le 15 aout, de son correspondant de New-York
une Lettre de Change payable a Lyon le l er Septembre, il y impossibility
de renvoyer l'effet aux Etats-Unis pour remplir l'endossement. Si Ton se
borne a exiger d'une maniere absolue que l'endossement soit rempli, on
accorde par la meme au porteur le droit de le remplir; mais des que ce
droit existe, la prescription de la loi ne produira aucun effet, et on ouvrira
la porte a des faits illicites. Dans cet etat de choses, le legislateur devra
tout simplement abandonner au libre arbitre du commercant la faculte d'-
employer l'endossement en blanc, et de l'accepter comme valable, s'l
lui est presente." Fcelix, Revue Etrang. et Franc. Tom. 8, (1841, x
p. 116-121. See also, Nouguier, Des Lettres de Change, Tom. 1
p. 273, 274, cited Ante, § 42, note ; Id. Tom. 1, p. 279-285. The same
learned author says, that indorsements in blank were first introduced into
France at the commencement of the 18th century. Nouguier, Tom.
p. 296.
168 PROMISSORY NOTES. [CH. IV.
ive, when it is either expressly restrained to the pay-
ment of the Note to a particular person only, or for a
particular purpose, or is made in favor of a person who
cannot make a transfer thereof to another. 1
§ 142. The payee, or indorsee, having the absolute
property in the Bill, and the right of disposing of it,
has the power of limiting the payment to whom he
pleases, and also the purpose, to which the payment
shall he applied ; and thus to restrict its negotiability. 2
1 Bayley on Bills, ch. 5, § 1, p. 125, (5th edit.) ; Chitty on Bills, ch. 6,
p. 258, 259, (8th edit.) ; Nicholson v. Chapman, 1 Robinson, Louis. R.
222; Story on Bills, § 206.
2 Mr. Chitty has remarked on this subject : " It was once thought, that
although the indorser might make a restrictive indorsement, when he in-
tended only to give a bare authority to his agent to receive payment, yet,
that he could not, when the indorsement was intended to transfer the in-
terest in the Bill to the indorsee, by any act, preclude him from assigning
it over to another person, because, as it was said, the assignee purchases
it for a valuable consideration, and, therefore, takes it with all its privileges,
qualities, and advantages, the chief of which is its negotiability. (Edie v.
East India Company, 2 Burr. 1226.) In a case (Bland v. Ryan, Peake,
Addit. Cas. 39) before Lord Kenyon, he doubted, whether a Bill, indorsed
in blank by A. to B., can be restrained in its negotiability by B.'s writing
over A.'s indorsement, ' Pay the contents to C. or order.' In a note, the
reporter has collected the cases, showing, that, in general, a restrictive
indorsement may be made by a subsequent holder, after an indorsement in
blank ; but observes, that, the recent cases do not establish the right of an
indorsee in blank to write over the indorsees name, but only, that a re-
strictive indorsement may be made below an indorsement. But the case
of Clarke v. Pigot (1 Salk. 126, 12 Mod. 192) seems to be an authority to
prove that this may be done. It has long been settled, on the above prin-
ciple, that an indorser may restrain the negotiability of a Bill, by using
express words to that effect, as by indorsing it, ' Payable to J. S. only ; '
or by indorsing it, ' The within must be credited to J. S.' (Ancher v. Bank
of England, Doug. R. 637; Chitty on Bills, ch. 6, p. 258, note, 8th edit.
1833,) or by any other words clearly demonstrating his intention to make
a restricted and limited indorsement. But a mere omission, in the indorse-
ment, of the words, 'or order,' will not, in any case, prevent a Bill from
being negotiable, ad infinitum." Chitty on Bills, ch. 6, p. 260, 261, (8th
edit. 1833). [See Scares v. Glyn, 8 Adolph. & Ellis, N. S. 24.]
CH. IV.] RIGHTS OF PARTIES ON TRANSFERS. 169
In respect to restrictive indorsements, it is proper to
observe, that, where the Bill is originally negotiable,
or payable to order, an indorsement, directing payment
to a particular person by name, without adding the
words, u or his order," will not make it an indorsement
payable to him only, and restrain the negotiation there-
of; for, in all cases of indorsement, the restriction
must arise by express words or necessary implication,
to produce such an effect. 1 The reason is, that the
direction to pay to a particular person does not neces-
sarily import, that it shall not be paid to any other
person, to whom he may indorse it ; but only that it
shall not pass without his indorsement. 2 So, if a Bill
is indorsed, " Pay to the order of A. B.," he may not
only indorse it, but he may, in his own name, 'sue and
recover upon the same, without averring, that he has
made no order. 3
§ 143. It is not, perhaps, easy, in all cases, to assert
what language will amount to a restrictive indorsement,
or, in other words, what language is sufficient to show
a clear intention to restrain the general negotiability of
the instrument, or the general purposes, to which the
indorsement might otherwise entitle the indorsee to
apply it. Where the indorsement is, "Pay to A. B.
1 Chitty on Bills, ch. 6, p. 257,258, (8th edit. 1833) ; Bayley on Bills,
ch. 5, § 1, p. 128, (5th edit. 1830) ; Moreu. Manning, Com. R. 311 ; Ache-
son v. Fountain, 1 Str. R. 557; Edie v. East India Company, 1 Wm.
Black. R. 295, 2 Burr. 1216 ; Story on Bills, § 210.
2 Ibid.
3 Ibid. ; Fisher v. Pomfrett, Carth. R. 403 ; Smith v. McClure, 5 East,
R. 476 ; Story on Bills, § 19, 56. Heineccius informs us, that the law is
different in Germany ; for, in the like case, A. B. has no right to receive
payment, but can only indorse it. " Quin aliquando et invitus alii cambi-
um cedere tenetur, si illi inest clausula, der Herr zahle an Titii Ordre.
Tunc enim Titio solvi non protest, sed ejus indossatario." Heinecc. de
Camb. cap. 2, § 8; Story on Bills, § 19, 56, 206, note.
PROM. NOTES. 15
170 PROMISSORY NOTES. [CH. IV.
only/' there the word " only " makes it clearly restrict-
ive, and does not authorize a payment or indorsement
to any other party. 5 So, if a Bill should be indorsed,
" The within to be credited to A. B. " 2 or " Pay the
within to A. B. for my use," 3 or, " Pay the within to
A. B. for the use of C. D.," 4 it would be deemed a
restrictive indorsement, so far as to restrain the nego-
tiability, except for the very purposes indicated in the
indorsement. In every such case, therefore, although
the Bill may be negotiated by the indorsee, yet every
subsequent holder must receive the money, subject to
the original designated appropriation thereof; and, if
he voluntarily assents to, or aids in, any other appro-
priation, it will be a wrongful conversion thereof, for
which he will be responsible. 5
§ 144. The French Law, in like manner, recognizes
the right of the indorser to make a restrictive indorse-
ment. This is usually done by a direction, "Pay on
my account to such a one " [Pour moi paierez a un tel) ;
in which case, the payment can be made only to the
person designated. 6 If it is intended to clothe the
party with authority to procure payment through any
i Chitty on Bills, ch. 6, p. 258-261,263, 264, (8th edit. 1833) ; Ancher
v. Bank of England, Doug. R. 637, 638; Bayley on Bills, ch. 5, § 1,
p. 125, 126 (5th edit. 1830) ; Edie v. East India Company, 2 Burr. 1216,
1227 ; Power v. Finnie, 4 Call. R. 411 ; 1 Bell, Coram. B. 3, § 4, p. 401,
402, (5th edit.)
2 Ibid. ; Ancher v. Bank of England, Doug. R. 615, 637.
3 Ibid. ; Sigourney v. Lloyd, 8 Barn. & Cressw. 622, 5 Bing. R. 525,
3 Younge & Jerv. 299; Wilson v. Holmes, 5 Mass. R. 543; Savage v.
Merle, 5 Pick. R. 85.
4 Ibid. ; Treuttel v. Barandon, 8 Taunt. R. 100.
5 Ibid. ; Sigourney v. Lloyd, 3 Younge & Jerv. 229 ; Bayley on Bills,
ch. 5, § 1, p. 128, 129, (5th edit. 1830) ; Story on Bills, § 211.
6 Pothier, De Change, n. 23, 42, 89 ; Pardessus, Droit Comm. Tom. 2,
§ 348; Merlin, Repertoire, Endossemmt.
CH. IV.] RIGHTS OF PARTIES ON TRANSFERS. 171
other person, then the words are added, " or to his
order " (ou a son ordre) ; and in that event, and in that
only, the Bill may be negotiated to a third person, but
still for the use of the indorser. 1 Heineccius informs
us, that a like difference in the mode of making in-
dorsements prevails in Germany, in order to accom-
plish the like purposes. "Id vero prcecipue observan-
dum, Gambia cedi vel indossari bifariam. Aut enim ita
improprie fit cessio, ut alter procurator indossantis fiat
in rem alienam, quod fit formula, vor mich an Herm
Javolenus, soil mir gute Zahlung seyn, vel, es soil mir vali-
diren ; aut cessio est vera et propria, eum in finem facta,
ut cessionarius fiat dominus cambii, quod fit formula, vor
mich an Herm Javolenus, Valuta von demselben. Prior
indossatarius, quia tantum procurator est, cambium alterius
indossare nequit ; huic autem regulariter id est integrum,
Unde scepe sex vel plures cessiones dorso cambii inscriptce
leguntur, quale cambium tunc vocari solet ein Giro, vel, ein
girirter Wecksel." 2
§ 145. But, although restrictive indorsements are thus
clearly allowed, both by our law and the foreign law,
still, as they necessarily tend to impair the negotia-
bility of Bills of Exchange, an intention to create such
a restriction will not be presumed from equivocal lan-
guage, and especially where it otherwise admits of a
satisfactory interpretation. Thus, for example, an in-
dorsement, u Pay the contents to A. B., being part of
the consideration on a certain deed of assignment exe-
cuted by the said A. B. to the indorser and others," has
been held not to be restrictive. 3 So, where a Bill was
i Pothier, ibid. See Pardessus, Tom. 2, art. 353-355.
2 Heinecc. de Camb. cap. 2, § 10 ; Id. § 19 ; Story on Bills, § 212.
3 Potts v. Reed, 6 Esp. R. 57 ; Bayley on Bills, ch. 5, § 1, p. 127, (5th
edit. 1830) ; Chitty on Bills, ch. 6, p. 259, 260, (8th edit. 1833.)
172 PROMISSORY NOTES. [CH. IV.
made payable to A. and B. or, bearer, and the name of
their bankers was written across it, and afterwards A.
transferred the check, on his own account, to another
banker, it was held that the transfer to the latter was
good, unless, by the common understanding of bankers,
there was information of a special appropriation of the
check to the bankers of A. and B. 1
§ 146. A qualified indorsement differs from a restrict-
ive indorsement in this, that whereas the latter re-
strains the negotiability of the instrument to a particu-
lar person or purpose, the former in no respect affects
the negotiability of the instrument, but simply qualifies
the duties, obligations, and responsibilities of the in-
dorser, resulting from the general principles of law.
Thus, for example, an indorsement of a Note to A.,
" without recourse," or a at his own risk," will not re-
strain the negotiability of the Note ; but will simply
exclude any responsibility of the indorser, on the non-
acceptance or non-payment thereof. 2 Neither will an
indorsement to A. u or order, for my use," restrain its
negotiability, although the indorsee must take it, subject
i Stewart v. Lee, 1 Mood. & Malk. 158 ; Chitty on Bills, ch. 6, p. 280,
(8th edit. 1833) ; Bayley on Bills, ch. 8, p. 324 (5th edit. 183,0) ; Story
on Bills, § 210-213.
2 Rice v. Stearns, 3 Mass. R. 225 ; Chitty on Bills, ch. 6, p. 2^1, 254,
261, (8th edit. 1833) ; Id. p. 37 ; Pike v. Street, 1 Mood. & Malk. 226 ;
Goupy v. Harden, 7 Taunt. R. 159, 162 ; Welch v. Lindo, 7 Cranch, 159 ;
Pardessus, Droit Comm. Tom. 2, art. 348; 3 Kent, Comm. Lect. 44, p.
92, 93, (4th edit.); Pothier, De Change, n. 42, 89. In Mott v. Hicks,
1 Cowen, R. 513, where a Note was payable to A. B. or order, A. B. in-
dorsed it thus, " A. B. agent." It was held by the Court, that this was
a restrictive or qualified indorsement, and exempted A. B. from all per-
sonal responsibility on the Note ; and was equivalent to writing over it,
that it was at the risk of the indorsee. But, quaere, if this case can be
supported at law. See Story on Agency, § 154, 159, 276, and cases there
cited.
•CH. IV.] RIGHTS OF PAETIES ON TRANSFERS. 173
to iny use. 1 And, a fortiori, an indorsement expressive
of the consideration, for which the indorsement is made,
will not restrain the negotiability ; as, for example, an
indorsement, "Pay the contents to A. B., being part
payment of goods sold by him to me, or being in full
of debt due to him by me." 2 [And the addition of the
word "surety" or "security," by the indorsers of a
Note, to their names, will not divest them of their cha-
racter as indorsers, but will operate to give them the
privileges of sureties in addition to their rights as in-
dorsers.] 3
§ 147. And not only may the indorser by his indorse-
ment qualify and restrain his own liability ; but he may
also, if he chooses, enlarge his ordinary responsibility as
indorser. We have already seen, that the obligation
created by law, in cases of indorsement, is conditional,
and requires the holder to make due demand, and give
due notice to the indorser of the non-payment of the
Note ; and, if he omits so to do, the indorser is discharged. 4
But an indorser may absolutely guarantee the payment
of the Note in all events, and dispense with any such
due demand or notice. 5 In such a case, there is no rea-
1 Story on Bills, § 211 ; Bayley on Bills, ch. 5, $ 1, p. 128, 129, 134,
(5th edit. 1830); Evans v. Cramlington, Carth. R. 5 ; 2 Vent. 307;
Skinn. R. 264 ; Treuttel v. Barandon, 8 Taunt. R. 100.
2 Potts v. Reed, 6 Esp. R. 57 ; Bayley on Bills, ch. 5, § 1, p. 127 (5th
edit. 1830) ; Story on Bills, § 214.
3 Bradford v. Corey, 5 Barbour, Sup. Ct. R. 461.
4 Ante, § 135 ; Story on Bills, § 107 - 109.
5 Upham v. Prince, 12 Mass. R. 14 ; Partridge v. Davis, 20 Vermont,
R. 500. Post, § 465. But see contra, Taylor v. Binney, 7 Mass. R. 479 ;
Canfield v. Vanghan, 8 Martin, R. 682 ; Allen v. Rightmere, 20 John. R.
365 ; Ketchell v. Burns, 24 Wend. R. 456. I am aware, that some doubt
may exist upon this point, although it appears to me, that the true prin-
ciple is as stated in the text. The true import of such a guaranty seems
to me to be, that the payee means to say, I indorse and transfer this Bill
15*
174 PROMISSORY NOTES. [CH, IV,
son to infer, that the indorser means to restrain the fur-
ther negotiability of the Note, even if he does mean to
to you, and I agree absolutely to pay the same, if not paid by the acceptor,
and waive my general lights as indorser, and claim only such demand and
notice as a guarantor might have. In Taylor v. Binney, 7 Mass. R. 479,
the Note was payable to A. B. or order ; and after the Note became due,
and remained unpaid, A. B. indorsed it, as follows ; " Dec'r 13, 1805. I
guaranty the payment of the within Note, in 18 months, provided it cannot
be collected of the promisor before that time." A. B. then passed the
Note, with this indorsement, to a third person, who passed it, without his
own indorsement, to the plaintiff, who sued the indorser. The Court held
the action not maintainable. There were many special circumstances in
the case. Mr. Justice Sewall, in delivering the opinion of the Court,
said ; "In the case at bar, the plaintiff relies on an indorsement, which is
not blank in the form of it, but completed by the indorser himself. The
Note, with the words of the payee in his indorsement, are to be construed
together as one written instrument. The special guaranty, expressed in
that indorsement, is the whole ground, upon which the present action
against this defendant can be maintained ; and the plaintiff does not rely
upon any implied responsibility, resulting from the indorsement in the com-
mon form. If this indorsement, in the whole tenor of it, may be construed
to be, not only a guaranty, but also a transfer and assignment of the Note,
which seems to have been the intention and understanding of the parties,
the principal objection to the title of the plaintiff remains in force. There
is no name inserted of the party to be entitled by the indorsement ; and, if
this omission might be supplied by extraneous evidence, the facts proved in
the case render it certain, that the present plaintiff was not the party to
the guaranty or assignment, when it was made ; and no evidence has been
offered of any subsequent privity or assent between him and the defendant.
But the argument of the plaintiff is, that the omission of the name of the
indorsee is evidence of an intention in the defendant and the other imme-
diate party, whoever he was, to give an unlimited currency to this Note,
and to accompany it with the collateral promise of the payee ; according
to the usage and construction, in ordinary cases, of blank indorsements
upon negotiable Bills or Notes. But, in the case at bar, there is no neces-
sary implication to this effect, arising from the circumstanceof the omission
of the name of the indorsee or party to the guaranty. This may have
been a mistake or accident. The negotiation was not upon the credit of
the original promisor, but wholly upon the final responsibility of the in-
dorser ; the ability of the promisor, considering the whole tenor of this
indorsement, remaining at his risk ; and the assignment seems to be rather
a confidence for the collection of the Note, than an absolute transfer of the
property. The guaranty, taken independently of the Note, is a promise
GH. IV.] RIGHTS OF PARTIES ON TRANSFERS. 175
restrain the effect of the guaranty to his immediate in-
dorsee. 1 And, if the indorsement is either without the
not negotiable, being conditional, and not absolute ; and, connected with it,
the supposition is altogether unreasonable and improbable, of an unlimited
currency intended for the Note itself, at the risk of the indorser. The
plaintiff fails, therefore, in the evidence necessary to his title, even admit-
ting the usage cited, respecting Notes indorsed in blank, to have any ap-
plication, where the indorsement is full and restrictive, and not at all in the
form of a blank indorsement, unless in the mere circumstance of omitting
the name of the indorsee." In Upham v. Prince, 12 Mass. R. 14, the
Note was payable to A. B. or order, on demand ; A. B. indorsed the
Note, "I guaranty the payment of this Note within six months ; " and it
was then transferred to C. D., who transferred it to the plaintiff. The
Note not being paid at the end of the six months, the plaintiff brought a
suit thereon against A. B. The Court, upon that occasion, said ; " What-
ever effect such a writing on the back of a Note might legally have, be-
yond that of an assignment of the Note, we do not think it necessary to
decide. But we are all of opinion, that the Note did not lose its negotia-
bility by this special indorsement, any more than it would, if it had been
indorsed with the words, ' without recurrence to the indorser,' which is a
common form of indorsement, where the indorser does not intend to remain
liable. The defendant's engagement amounts to a promise, that the Note
should, at all events, be paid within six months. Now, this promise may
not be assignable in law ; and yet the Note itself may be assignable by the
party, to whom it was so transferred, so that, upon non-payment of it by
the promisor, the holder would have a right of action against Prince, as
indorser. A demand was made upon the promisor within a short time
after the date of the Note ; and notice was given to the indorser, as soon
as he returned to this country, he being absent during the whole of the
six months the Note was to run. It does not appear, that he had any
dwelling-house or place of business here while he was absent, so that a
call upon him, as soon as he returned, was all that could be done or re-
quired. We think, upon the facts agreed, that the defendant must be
called." This last decision seems to me to contain the true doctrine ; and
it is not easy to perceive what reasonable objection lies to it. The indorse-
ment amounts, in legal effect, to an agreement to be bound as indorser for
six months, and that a demand need not be made upon the maker of the
Note for payment at an earlier period. It is, therefore, a mere waiver of
the ordinary rule of the law, as to reasonable demand and notice upon
Notes payable on demand. Myrick v. Hasey, 14 Shepley, R. 9. See, as
to guaranty of Bills, Pothier, De Change, n. 26, 50, 122, 123 ; Code de
Comm, de l'Aval, art. 141, 142 ; Pardessus, Droit Comm. Tom. 1, art.
1 Ibid.
176 PROMISSORY NOTES. [cH. IV.
name of any person, to whom it is indorsed, but a blank
is left for the name, or if the Note is indorsed to a per-
son or his order, or to the bearer, with such guaranty,
there is certainly strong reason to contend, that he
means to give the benefit of the guaranty to every sub-
sequent holder ; 1 and, at all events, such a holder has a
right to hold him as indorser of the Note, as he has left
its negotiability unrestrained. 2
§ 148. Sometimes the indorsement contains a written
agreement to dispense with any demand upon the maker,
or with notice of the dishonor, if the Note is not duly
paid. In such cases, the indorser will be liable thereon,
not only to his immediate indorsee, but to every subse-
quent holder; for the language will be construed to im-
port an absolute dispensation with the ordinary condi-
tions of an indorsement. 3 And this proceeds upon the
just maxim, Qidlibet potest renunciare juri pro se introduc-
io. 4 But where the agreement is not on the face of the
351, 394-399; Chitty on Bills, ch. 6, p. 272, 273, (8th edit. 1833);
3 Kent, Comm. Lect. 44, p. 90, note (d), (4th edit.) ; Ketchell v. Burns, 24
Wend. R. 456.
i See on this point, Miller v. Gaston, 2 Hill, N. Y. R. 188; McLaren
v. Watson, 26 Wend. R. 425; Story on Bills, § 372, and note; Id.
§ 455-458, and notes; Hall v. Newcomb, 3 Hill, N. Y. R. 233.
2 Upham v. Prince, 12 Mass. R. 14. Partridge v. Davis, 20 Vermont,
R. 500. See Blakely v. Grant, 6 Mass. R. 386 ; Ketchell v. Burns, 24
Wend. R. 456 ; Allen v. Rightmere, 20 John. R. 365. But see, contra,
Taylor v. Binney, 7 Mass. 479; Canfield v. Vaughan, 8 Martin, R. 682.
See, also, Lamourieux v. Hewit, 5 Wend. R. 307 ; Story on Bills, § 215.
3 Fuller v. McDonald, 8 Greenl. R. 215 ; Lane v. Steward, 2 Appleton,
R. 98 ; Story on Bills, § 317, 320, 371 ; Berkshire Bank v. Jones, 6 Mass.
R. 524.
4 2 Co. Inst. 183 ; Wingate, Maxims, 483 ; Norton v. Lewis, 2 Connect.
R. 478 ; Leonard v. Gary, 10 Wend. R. 504 ; Taunton Bank v. Richard-
son, 5 Pick. 436. But see Chitty on Bills, ch. 10, p. 483, 484, (8th edit.
1833) ; Central Bank v. Davis, 19 Pick. 373, 375 ; Andrews v. Boyd, 3
Mete. R. 434. Some of the cases upon this subject stand upon very nice
CH. IV.] RIGHTS OF PARTIES ON TRANSFERS. 177
indorsement, but is merely oral between the indorser
and his immediate indorsee, the effect would seem to be
limited to the immediate parties ; and even here doubts
have been entertained, whether the evidence is admis-
sible between them, since it has been thought to vary and
control the ordinary obligations of an indorsement. 1
These doubts, however, have been overcome in America ;
and the doctrine is established, that such evidence is
admissible. 2
§ 149. A conditional indorsement is one, which in-
volves some fact or event, upon the occurrence of which
grounds, and are not, perhaps, always easily reconcilable with the general
principle here stated. In Free v. Hawkins, 8 Taunt. R. 92, it was held,
that evidence of a parol agreement between the holder and the indorser of
a Promissory Note, at the time of making and indorsing it, that payment
should not be demanded of the maker of the Note, at the time, when it
became due, nor until after the sale of certain estates of the maker, was
held inadmissible, because it controlled and varied the legal obligations of
the indorser. Chitty on Bills, ch. 10, p. 483, (8th edit. 1833) ; Bayley on
Bills, ch. 12, p. 491, 492, (5th edit. 1830.) The same point was, in effect,
adjudged in Woodbridge v. Spooner, 3 Barn. & Aid. 233 ; Rawson v.
Walker, 1 Stark. R. 361 ; Hoare v. Graham, 3 Camp. R. 57; Bank of
United States v. Dunn, 6 Peters, R. 51 ; Spring v. Lovett, 11 Pick. R.
417 ; Trustees in Hanson v. Stetson, 5 Pick. R. 506. But there is some
difficulty in reconciling this doctrine with that promulgated by the Supreme
Court of the United States, in the case of Renner v. Bank of Columbia,
9 Wheat. R. 581. But parol evidence of a bargain, after a Note or Bill
has been given or transferred, may be admissible to establish a waiver of
notice, or a valid agreement to postpone payment, if founded on a sufficient
consideration. Bayley on Bills, ch. 12, p. 493, (5th edit. 1830) ; Hoare v.
Graham, 3 Camp. R. 57; Gibbon v. Scott, 2 Stark. R. 286; Story on
Bills, § 317, note; Id. § 371.
1 Free v. Hawkins, 8 Taunt. R. 92 ; Hoare v. Graham, 3 Camp. R. 57 ;
Bayley on Bills, ch. 12, p. 492, 493, (5th edit.)
2 Story on Bills, fy 317, and note ; Id. § 371 ; Taunton Bank v. Richard-
son, 5 Pick. R. 436, 443; Central Bank v. Davis, 19 Pick. R. 373, 375 ;
Leffingwell v. White, 1 John. Cas. 99 ; Union Bank v. Hyde, 6 Wheat,
R. 572. But see, contra, Chitty on Bills, ch. 10, p. 466, 485 (8th edit.) ;
Bayley on Bills, ch. 12, p. 492, 493, (5th edit.)
178 PROMISSORY NOTES. [CH. IV.
the validity of the indorsement is ultimately to depend ;
and which is either to give effect to it, or to avoid it ; 1
and it may be either a condition precedent, or a condi.
tion subsequent. If it be a condition precedent, which
is to give it validity, then, upon the occurrence of the
fact or event, the title of the indorsee becomes absolute ;
if it be a condition subsequent, which is to avoid it, then
the title of the indorsee, upon the occurrence of the
fact or event, becomes void, or is defeated. 2 A condition
attached to an indorsement has a very different opera-
tion from that attached to the original formation of the
Note. In the latter case, as we have seen, 3 the instru-
ment loses its character as a Promissory Note, and is
not negotiable. But, in the former case, neither the
original character of the Note, nor its negotiability, is
controlled by the condition ; and the only effect is to
subject the title of the indorsee to its full operation. 4
If, therefore, the condition of the indorsement be prece-
dent, until it is fulfilled, no title passes to the indorsee ;
if it be a condition subsequent, then, when fulfilled, his
title is defeated. 5 And, of course, in each case, every
subsequent holder takes the title subject to the same
stipulations. 6 Thus, for example, if an indorsement on
1 Story on Bills, § 206.
2 Chitty on Bills, ch. 6, 261, (8th edit.)
3 Ante, § 22.
4 Thomson on Bills, ch. 3, §2, p. 275, 276, (2d edit.) ; Bayley on Bills,
ch. 5, § 1, p. 126, (5th edit.) ; Chitty on Bills, ch. 6, p. 201 (8th edit.) ;
Tappan v. Ely, 15 Wend. R. 362. See Blakely v. Grant, 6 Mass. R.
386 ; Upham v. Prince, 12 Mass. R. 14. But see Taylor v. Binney,
7 Mass. R. 479 ; Canfield v. Vaughan, 8 Martin, Louis. R. 682.
5 Story on Bills, § 217; Bayley on Bills, ch. 5, § 1, p. 126, (5th edit.) ;
Chitty on Bills, ch. 6, p. 261, (8th edit.) ; Wright v. Hay, 2 Stark. R.
398.
6 Ibid. ; Tappan v. Ely, 15 Wend. R. 362.
CH. IV.] RIGHTS OF PARTIES ON TRANSFERS. 179
a Promissory Note be made, " Pay the contents to A.
B. on my being gazetted ensign within two months,"
there, if the indorser is not so gazetted within the time,
the title of the indorsee, and of every subsequent
holder, becomes void, and the right thereto reverts to
the original indorser. 1 On the other hand, if he is so
gazetted within the time, then the title is absolute and
irrevocable. 2 So, if a Note be indorsed, " Pay to A. B.
or order, if he arrives at twenty-one years of age," or,
" if he is living when it becomes due," is a conditional
indorsement of the like nature, upon a condition prece-
dent. On the other hand, if a Note be indorsed, " Pay
to A. B. or order, unless, before payment, I give you
notice to the contrary," or, " unless I pay him a debt,
which I owe him, before the Note becomes due," is an
indorsement upon a condition subsequent.
§ 150. The French Law, like ours, admits of restrict-
ive, qualified, and conditional indorsements, and gives
them full effect. 3 But that law, like ours, requires that
the restriction, qualification, or condition, should appear
on the face of the instrument, or, at least, should be
known to the subsequent holder, otherwise it will not
bind him. 4
§ 151. There is no limit to the number of successive
indorsements which may be made upon a Promissory
1 Bayley on Bills, ch. 5, § 1, p. 126, (5th edit.) ; Chitty on Bills, ch. 6,
p. 261, (8th edit.) ; Robertson v. Kensington, 4 Taunt. R. 30 ; Thomson
on Bills, ch. 3, § 2, p. 274, (2d edit.) .
2 Ibid.
3 Pardessus, Droit Comm. Tom. 2, art. 341, 348.
4 Pardessus, Droit Comm. Tom. 2, art. 341, 348 ; Bayley on Bills, ch.
5, § 1, p. 125-129 (5th edit.) ; Chitty on Bills, eh. 5, p. 161-164, (8th
edit.) ; Hoare v. Graham, 3 Camp. R. 57,
180 PROMISSORY NOTES. [CH. IV.
Note ; and if they cannot all be written on the Note
itself, a paper may be annexed thereto, which is called,
in France, Alonge? on which the latter indorsements
may be written, and which will be deemed a part of the
Note, and of the same obligation as if written upon the
Note itself. 2 Sometimes a Note, which has been in-
dorsed by a prior indorser, comes back to him by re-in-
dorsement in the course of business. In such a case,
he will be reinstated in his original rights in the Note ;
but he will ordinarily have no claim upon any of the
indorsers, subsequent to his own name. Peculiar cir-
cumstances may exist, which may vary the general
rule ; but then the party would not claim strictly in his
character as a regular party to the Note, but upon the
special contract growing out of the circumstances. 3
§ 152. By our law, no particular form is prescribed,
in which an indorsement on a Promissory Note is re-
quired to be made, the mere signature being of itself,
(as we have seen, 4 ) in general, sufficient ; and, indeed,
this (as has been justly observed) is the most concise
mode of transferring an interest, or creating a contract,
which could be invented, where the transfer is intended
to be general and absolute, and the liabilities of the
indorser precisely those which arise by law from the
i Story on Bills, § 204 ; Ante, § 121.
2 Chitty on Bills, ch. 6, p. 262, (8th edit. 1833) ; Story on Bills, § 204 ;
Pardessus, Droit Comm. Tom. 2, art. 343 ; Pothier, De Change, n. 24 ;
Folger v. Chase, 18 Pick. R. 63.
3 Chitty on Bills, ch. 2. p. 29, 30, (8th edit. 1833) ; Id. ch. 4, p. 239 ;
Bishop v. Hayward, 4 Term R. 470; Britten v. Webb, 2 Barn. &
Cressw. 483 ; Bayley on Bills, ch 9, p. 329-331, 388, (5th edit. 1830) ;
Story on Bills, § 218.
4 Ante, § 121.
CH. IV.] RIGHTS OF PARTIES ON TRANSFERS. 181
nature of an indorsement. 1 And, although the term in-
dorsement, strictly speaking, seems to import a writing
on the back of the Note itself; yet it is well esta-
blished, that it may be made on the face of the Note ; 2
and, as we have just seen, by a paper annexed thereto,
(une along e^f Where the payee is unable to write, he
has no other alternative or resource, than to make the
indorsement as a marksman, with the attestation of
another person, or, which is far better, by an agent ex-
pressly authorized. 4
§ 153. In the next place, as to the rights, duties, and
obligations of the indorsee, or holder, of a negotiable
Promissory Note. These have been summed up by Mr.
Bayley, in a very brief and expressive manner, and in
language equally applicable to Bills and Notes. He
says ; " The receipt of a Bill or Note implies an under-
taking from the receiver, to every party to the Bill or
Note, who would be entitled to bring an action on pay-
ing it, to present in proper time, the one, where neces-
sary, for acceptance, and each for payment ; to allow
no extra time for payment ; and to give notice without
delay to such person of a failure in the attempt to pro-
cure a proper acceptance or payment ; and a default in
any of these respects will discharge such person from
all responsibility on account of a non-acceptance or non-
payment, and will, unless the Bill or Note were on an
improper stamp, make it operate as a satisfaction of any
1 Chitty on Bills, ch. 6, p. 253, (8th edit.) ; Pardessus, Droit Comra.
Tom. 2, art. 343.
2 Chitty on Bills, ch. 6, p. 253, (8th edit.) ; Rex v. Bigg, 1 Str. R.
18; Yarborough v. Bank of England, 16 East, R. 6, 12.
3 Ante, $ 150.
4 Chitty on Bills, Pt. 2, ch. 5, p. 621, (8th edit.) See also Pardessus,
Droit Comm. Tom. 2, art, 343.
PROM. NOTES. 16
182 PROMISSORY NOTES. [CH. IV.
debt or demand for which it was given." 1 The particu-
lar mode in which these duties are to be performed will
come under our examination more fully in a future part
of these Commentaries. And it is only necessary here
to add, that this language requires some qualification,
and cannot be strictly applied to the case of an accommo-
dation maker of a Note, or an accommodation acceptor
of a Bill ; for, so far as the indorsee or holder is con-
cerned, they are to be treated exactly as if they were
the primary and original debtors.
§ 154. The remarks which have been thus far made,
suppose that the Promissory Notes, of which we have
been speaking, are made and indorsed in the same state
or country, so that no diversity exists, as to the rights,
duties, and obligations springing therefrom. But a
Note may be made in one country, and indorsed suc-
cessively in other different states and countries, go-
verned by different laws, and, therefore, importing differ-
ent rights, duties, and obligations. Under such circum-
stances, it becomes important to inquire by what laws
the contracts thus created are to be governed. This
subject properly belongs to a treatise upon the Conflict
of Laws ; and having been treated at large in my Com-
mentaries on that subject, as well as in my Comment-
aries on Bills of Exchange, it will be here very briefly
discussed ; but as the present work is designed to be
independent of any other, it ought not to be wholly
passed over in silence.
§ 155. The general rule, then, is, that every contract,
as to its validity, nature, interpretation, and effect, is to
be governed by the law of the place where it is made,
» Bayley on Bills, ch. 7, § 1, p. 217, 218, (5th edit.)
CH. IV.] RIGHTS OF PARTIES ON TRANSFERS. 183
and is to be executed, which is compendiously ex-
pressed, as the Lex Loci contractus. 1 In the first place,
then, as to the validity of contracts. Generally speak-
ing, the validity of a contract is to be decided by the
law of the place where it is made. If valid there, it is,
by the general law of nations, (jure gentium,) held valid
everywhere, by the tacit or implied consent of the par-
ties. 2 The rule is founded, not merely in the conven-
ience, but in the necessities, of nations ; for, otherwise,
it would be impracticable for them to carry on an exten-
sive intercourse and commerce with each other. The
whole system of agencies, of purchases and sales, of
mutual credits, and of transfers of negotiable instru-
ments, rests on this foundation ; and the nation which
should refuse to acknowledge the common principles,
would soon find its whole commercial intercourse re-
duced to a state like that in which it now exists among
savage tribes, among the barbarous nations of Sumatra,
and among other portions of Asia, washed by the Paci-
fic. Jus autem gentium (say the Institutes of Justinian)
omni humano generi commune est; nam, usu exigente, et
i Story on Conflict of Laws, § 242 - 244 ; Id. § 266 - 270.
2 Story on Conflict of Laws, § 242 ; Pearsall v. Dwight, 2 Mass. R.
88, 89. See Casaregis, Disc. 179, § 1, 2 ; Willings v. Consequa, 1 Peters,
C. C. R. 172; 2 Kent, Coram. Lect. 39, p. 457, 458, (3d edit.) ; De
Sobry v. De Laistre, 2 Harr. & John. R. 193, 221, 228 ; Smith v. Mead,
3 Connect. R. 253 ; Medbury v. Hopkins, 3 Connect. R. 472 ; Houghton
v. Page, 2 N. Hamp. R. 42 ; Dyer v. Hunt, 5 N. Hamp. R. 401; Ers-
kine's Inst. B. 3, tit. 2, $39-41, p. 514-516; Trimbey v. Vignier,
1 Bing. N. Cas. 151, 159; S. C. 4 Moore & Scott, 695; Andrews v.
Pond, 13 Peters, R. 65; Andrews v. His Creditors, 11 Louis. R. 465;
Story on Conflict of Laws, § 316 a; Bayley on Bills, ch. (A) American
Edit, by Phillips & Sewall, 1836, p. 78-86; 1 Burge, Comment, on Col.
and For. Law, Pt. 1, ch. 1, p. 29, 30 ; Whiston v. Stodder, 8 Martin, R.
95; Bank of U. States v. Donnally, 8 Peters, R. 361, 372 ; Wilcox v.
Hunt, 13 Peters, R. 378, 279.
184 PROMISSORY NOTES. [CH. IV.
humanis necessitatibus, gentes humance jura qucsdem sibi
constituerunt. Et ex hoc jure gentium, omnes pene con-
tractus introducti sunt, ut emptio et venditio, locatio et con-
duction societas, depositum mutuum, et alii innumerabiles}
No more forcible application can be propounded of this
imperial doctrine, than to the subject of international
private contracts. 2 In this, as a general principle, there
seems a universal consent of all courts and all jurists,
foreign or domestic. 3
§ 156. The same rule applies, vice versa, to the inva-
lidity of contracts ; if void or illegal by the law of the
place of the contract, they are, generally, held void and
illegal every where. 4 This would seem to be a princi-
1 Inst. Lib. 1. tit. 2, § 2.
2 2 Kent, Comm. Lect. 39, p. 454, 455, and note, (3d edit.) ; 10 Toul-
lier, art. 80, note ; Pardessus, Droit Comm. Tom. 5, art. 1482; Chartres
v. Cairnes, 16 Martin, R. 1.
3 The cases which support this doctrine, are so numerous that it would
be a tedious task to enumerate them. They may, generally, be found
collected in the Digests of the English and American Reports, under the
head of Foreign Law, or Lex Loci. The principal part of them are col-
lected in 4 Cowen, R. 510, note ; and in 2 Kent, Comm. Lect. 39, p. 457,
et seq. in the notes. See also, Fonblanque on Eq. B. 5, ch. 1, § 6, note
(t), p. 443 ; Brackett v. Norton, 4 Connect. R. 517 ; Medbury v. Hop-
kins, 3 Connect. R. 472 ; Smith v. Mead, 3 Connect. R. 253; De Sobry
v. De Laistre, 2 Harr. & John. R. 193, 221, 228 ; Trasher v. Everhart,
3 Gill & John. R. 234. The foreign jurists are equally full, as any one
will find, upon examining the most celebrated of every nation. They all
follow the doctrine of Dumoulin. " In concernentibus contractibus, et
emergentibus tempore contractus, inspici debet locus, in quo contrahitur."'
Molin. Comment, ad Consuet. Paris, tit. 1, § 12, Gloss, n. 37, Tom. ], p.
224; Story on Conflict of Laws, § 260, 300, d. See Bouhier, ch. 21,
§ 190; 2 Boullenois, Observ. 46, p. 458. Lord Brougham, in Warrender
v. Warrender, 9 Bligh, R. 110, made some striking remarks on this sub-
ject, which are cited in Story on Conflict of Laws, § 226, b, note ; Story
on Bills, $ 132.
4 Story on Conflict of Laws, § 243 ; Huberus, Lib. 1, tit. 3, De Con-
CH. IV.] RIGHTS OF PARTIES ON TRANSFERS. 185
pie derived from the very elements of natural justice.
The Code has expounded it in strong terms. Nullum
enim pactum, nullam conventionem, nullum contraetum, in-
ter eos videri volumus subsecutum, qui contrahimt, lege con-
trahere prohibente} If a contract be void in its origin,
it seems difficult to find any principle upon which any
subsequent validity can be given to it in any other
country. 2
§ 157. But there is an exception to the rule, as to
the universal validity of contracts, which is, that no na-
tion is bound to recognize or enforce any contracts,
which are injurious to its own interests, or to those
of its own subjects. 3 Huberus has expressed it in the
following terms ; Quatenus nihil potestati autjuri alterius
Imperantisjeusque civium prajudicetur ; 4 and Mr. Justice
Martin still more clearly expresses it, in saying, that
the exception applies to cases, in which the contract is
immoral or unjust, or in which the enforcing it in a state
would be injurious to the rights, the interests, or the con-
flict Leg. § 3, 5; Van Reimsdyk v. Kane, 1 Gallis. R. 375 ; R. 375 ;
Pearsall v. Dwight, 2 Mass. R. 88, 89; Touro v. Cassin, 1 Nott &
McCord, R. 173 ; De Sobry v. De Laistre, 2 Harr. & John. R. 193, 221,
225 ; Houghton v. Page, 2 N. Hamp. R. 42 ; Dyer v. Hunt, 5 N. Hamp.
R. 401 ; Van Schaick v. Edwards, 2 John. Cas. 355 ; Robinson v. Bland,
2 Burr. R. 1077 ; Burrows v. Jemino, 2 Str. R. 732 ; Alves v. Hodgson,
7 T. R. 241 ; 2 Kent, Coram. Lect. 39, p. 457, 458 (3d edit.) ; La Jeune
Eugenie, 2 Mason, R. 459; Andrews v. Pond, 13 Peters, R. 65, 78.
1 Cod. Lib. 1, tit. 14, 1. 5.
2 Story on Bills, § 134.
3 Story on Conflict of Laws, § 244 ; Greenwood v. Curtis, 6 Mass. R.
378, 379 ; Blanchard v. Russell, 13 Mass. R. 1,6; Whiston v. Stodder,
8 Martin, R. 95 ; De Sobry v. De Laistre, 2 Harr. & John. R. 193, 228 ;
Trasher v. Everhart, 3 Gill & John. R. 234 ; 3 Burge, Comm. on Col.
and For. Law, Pt. 2, ch. 20, p. 779 ; Story on Conflict of Laws, § 348-
351 ; Andrews v. Pond, 13 Peters, R. 65, 78.
4 Huberus, Lib. 1, tit. 3, De Conflictu Leg. § 2.
16*
186 PROMISSORY NOTES. [CH. IV.
venience, of such state, or of its citizens. 1 This excep-
tion results from the consideration, that the authority of
the acts and contracts done in other states, as well as
the laws, by which they are regulated, are not, propria
vigore, of any efficacy beyond the territories of that
state ; and whatever effect is attributed to them else-
where is from comity, and not of strict right. 2 And
every independent community will and ought to judge
for itself, how far that comity ought to extend. 3 The
reasonable limitation is, that it shall not suffer any pre-
judice by its comity. 4
§ 158. Another rule, naturally flowing from, or illus-
trative of, that already stated, respecting the validity of
contracts, is, that all the formalities, proofs, or authenti-
cations of them, which are required by the Lex Loci, are
indispensable to their validity everywhere else. 5 And
this rule seems fully established in the Common Law.
Thus, if, by the laws of a country, a contract is void,
unless it is written on stamped paper, it ought to be
held void everywhere ; for, unless it be good there, it
can have no obligation in any other country. 6 It might
1 Whiston v. Stodder, 8 Martin, R. 95, 97.
2 Story on Conflict of Laws, § 7, 8, 18, 20, 22, 23, 36.
3 Ibid.
4 Story on Conflict of Laws, § 25, 27, 29; Huberus, Lib. 1, tit. 3, De
Conflictu Leg. § 2, 3, 5; Trasher v. Everhart, 3 Gill & John. R. 234;
Greenwood v. Curtis, 6 Mass. R. 378 ; 2 Kent, Comra. Lect. 39, p. 457,
(4th edit.) ; Pearsall v. Dwight, 2 Mass. R. 88, 89; Eunomus, Dial. 3,
§ 67; Story on Bills, § 135.
5 See Story on Conflict of Laws, § 260 ; 1 Burge, Comment, on For.
and Col. Law, Pt. ch. 1, p. 29, 30; 3 Burge, Comm. Pt. 2 ch. 20, p.
752-764; Fcelix, Conflict, des Lois, Revue Etrang. et Framj. Tom. 7,
1840, $ 40-51, p. 346-360 ; Warrender v. Warrender, 9 Bligh, R. Ill ;
Story on Conflict of Laws, § 260, a.
6 Alves v. Hodgson, 7 T. R. 237; Cfegg v. Levy, 3 Camp. R. 166.
But see Chitty on Bills, p. 143, note (8th edit.) ; and Wynne v. Jackson,
CH. IV.] EIGHTS OP PARTIES ON TRANSFERS. 187
be different, if the contract had been made payable in
another country ; or, if the objection were, not to the
validity of the contract, but merely to the admissibility
2 Russell, R. 351 ; 3 Burge, Comm. on Col. and For. Law, Pt. 2, ch. 20,
p. 762. — The case of Wynne v. Jackson, 2 Russell, R. 351, is certainly
at variance with this doctrine. It was a Bill, brought to stay proceedings
at law on a suit, brought in England by the holder, against the acceptor of
Bills of Exchange, made and accepted in France, and which, in an action
brought in the French courts, had been held invalid, for want of a proper
French stamp. The Vice-Chancellor held, " that the circumstance of the
Bills being drawn in France, in such a form that the holder could not re-
cover on them in France, was no objection to his recovering on them in
an English court." This doctrine is wholly irreconcilable with that in
Alves v. Hodgson, 7 T. R. 241, and Clegg v. Levy, 3 Camp. R. 166 ; and
if by the laws of France such contracts were void, if not on stamped paper,
it is equally unsupportable upon acknowledged principles. In the case of
James v. Catherwood, 3 Dowl. & Ryl. 190, where assumpsit was brought
for money lent in France, and unstamped paper receipts were produced in
proof of the loan, evidence was offered to show, that, by the laws of Fiance,
such receipts required a stamp to render them valid ; but it was rejected
by the Court, and the receipts were admitted in evidence, upon the ground
that the Courts of England could not take notice of the revenue laws of a
foreign country. But this is a very insufficient ground, if the loan required
such receipt and stamp to make it valid as a contract. And, if the loan
was good per se, but the stamp was requisite to make the receipt good as
evidence, then another question might arise, whether other proof, than that
required by the law of France, was admissible, of a written contract.
This case also is inconsistent with the case in 3 Camp. R. 166. Can a
contract be good in any country, which is void by the law of the place
where it is made, because it wants the solemnities required by that law 1
Would a parol contract, made in England, respecting an interest in lands,
against the Statute of Frauds, be held valid elsewhere ? Would any court
dispense with the written evidence required upon such a contract? On
a motion for a new trial, the Court refused it, Lord Chief Justice Abbott
saying ; " The point is too plain for argument. It has been settled, or, at
at least, considered as settled, ever since the time of Lord Hardwicke, that,
in a British court, we cannot take notice of the revenue laws of a foreign
state. It would be productive of prodigious inconvenience, if, in every
case, in which an instrument was executed in a foreign country, we were
to receive in evidence, what the law of that country was, in order to ascer-
tain, whether the instrument was, or was not, valid." With great sub-
mission to his Lordship, this reasoning is wholly inadmissible. The law
is as clearly settled, as any thing can be, that a contract, void by the law
188 TROMISSORY NOTES. [CH. IV.
of other proof of the contract in the foreign court/
where a suit is brought to enforce it ; or, if the contract
concerned real or immovable property, situate in another
country, whose laws are different, respecting which, as
we shall presently see, there is a difference of opinion
among foreign jurists, although, in England and Ame-
rica, the rule seems firmly established, that the law rei
sites, and not that of the place of the contract, is to
prevail. 2
§ 159. In the next place, as to the nature of con-
tracts, the like rule prevails, that the Lex Loci contrac-
tus is to govern. 3 By the nature of a contract is meant
those qualities which properly belong to it, and by law
of the place, where it is made, is void everywhere. Yet, in every such
ease, whatever may be the inconvenience, courts of law are bound to as-
certain, what the foreign law is. And it would be a perfect novelty in ju-
risprudence to hold, that an instrument, which, for want of due solemnities
in the place where it was executed, was void, should yet be valid in other
countries. We can arrive at such a conclusion only by overturning well-
established principles. The case alluded to, before Lord Hardwicke, was
probably Boucher v. Lawson, (Cases T. Hard. 85 ; Id. 194.) which was
the case of a contract between Englishmen, to be executed in England, to
carry on a smuggling trade against the laws of Portugal. Lord Hardwicke
said, that such a trade was not only a lawful trade in England, but very
much encouraged. The case is wholly distinguishable from the present
case ; and from that of any contract, made in a country and to be executed
there, which is invalid by its laws. A contract made in Portugal by per-
sons domiciled there, to carry on smuggling against its laws, would, or
ought to be, held void everywhere. See, also, 3 Chitty on Comm. and
Manuf. ch. 2, p. 166.
1 Ludlow v. Van Rensselaer, 1 John. R. 93; James v. Catherwood, 3
Dowl. & Ryl. 190. See Clarke v. Cochran, 3 Martin, R. 358, 360, 361 ;
Brown v. Thornton, 6 Adolp. & Ellis, R. 185; Yates v. Thomson, 3
Clark & Fin. R. 544.
2 Story on Conflict of Laws, § 363-373, 435-445; Fcelix, Confl. dos
Lois, Revue Etrang. et Fran?. Tom. 7, 1840, § 40-50, p. 345-359 ;
Story on Bills, § 137.
3 Story on Bills, $ 139. •
CH. IV.] RIGHTS OF PARTIES ON TRANSFERS. 189
and custom always accompany it, or inhere in it. 1 Fo-
reign jurists are accustomed to call such qualities Na-
turalia contractus! 1 Ea enim, quce auctoritate legis vel con-
suetudinis contraction comitantur, eidem adherent, Natur ci-
lia a Doctoribus appettantur. Lex enim altera est quasi
natura, et in naturam transit. Atque quoad naturalia con-
tractuum etiam forenses statuta loci contractus observare
debent? Thus, whether a contract be a personal obliga-
tion, or a real obligation ; whether it be conditional or
absolute ; whether it be a principal, or an accessary obli-
gation ; whether it be that of principal, or of surety ;
whether it be of limited, or of universal operation ;
these are points properly belonging to the nature of the
contract, and are dependent upon the law and custom
of the place of the contract, whenever there are no ex-
press terms in the contract itself, which otherwise con-
trol them. By the law of some countries, there are
certain joint contracts, which bind each party for the
1 Pothier, as well as other jurists, distinguish between the essence, the
nature, and the accidents of contracts ; the former includes whatever is in-
dispensable to the constitution of it; the next, whatever is included in it,
without being expressly mentioned, by operation of law, but is capable of
a severance without destroying it ; and the last, those things which belong
to it only by express agreement. Without meaning to contest the propriety
of this division, I am content to include the two former in the single word,
" nature," as quite conformable to our English idiom. Cujas also adopts
the same course. See Pothier, Oblig. n. 5. See, also, 2 Boullenois,
Observ. 46, p. 460-462: Bayon v. Vavassier, 10 Martin, R. 61 ; Merlin,
Repertoire, Convention, § 2, n.6, p. 357; Rodenburg, De Div. Stat. tit. 2,
ch. 5, § 16 ; 2 Boullenois, Observ. App'x, 50 ; 1 Boullenois, Observ. 688 ;
3 Burge, Comm. on Col. and For. Law, Pt. 2, ch. 20, p. 848-851.
2 1 Boullenois, Observ. 23, p. 446; 2 Boullenois, Observ. 46, p. 460,
461 ; Voet, De Stat. § 9 ch. 10, p. 287; Id. p. 325 (edit. 1661) ; Hertius,
De Collis. Leg. Tom. 1, § 10, P . 127 ; Id. p. 179, 180 (edit. 1716) ; Story
on Conflict of Laws, 263, 301,/.
3 Lauterback, Diss. 104, Pt. 3, n.'58, cited 2 Boullenois, Observ. 46,
p. 460.
190 PROMISSORY NOTES. [CH. IV.
whole., in solido ; and there are other joint contracts,
where the parties are, under certain circumstances,
bound only for several and ; distinct portions. 1 In each
case, the law of the place of the contract regulates the
nature of the contract, in the absence of any express
stipulations. 9 These may, therefore, be said to consti-
tute the nature of the contract. 3
1 4 Burge, Comment on Col. and For. Law, Pt. 2, ch. 15, § 4, p. 722-
735 ; Story on Conflict of Laws, § 263, 322.
2 Pothier on Oblig. n. 261 - 268 ; Von Leeuwen, Comment. B. 4, ch. 4,
§ 1; Ferguson v. Flower, 16 Martin, R. 312; 2 Boullenois, Observ. 46,
p. 463 ; Code Civil of France, art. 1197, 1202, 1220, 1222; Id. Code of
Comm. art. 22, 140. One may see, how strangely learned men will rea-
son on subjects of this nature, by consulting Boullenois. He puts the case
of a contract made in a country, where all parties would be bound in solido,
and, by the law of their own domicil, they would be entitled to the benefit
of a division, and vica versa. ; and asks, What law is to govern? In each
case he decides, that the law should govern, which is most favorable to the
debtor. " Ainsi, les obliges solidaires sont contracte sous une loi, qui
leur est favorable ; j'embrasse cette loi ; elle leur est contraire, j'embrasse
la loi de leur domicile." 2 Boullenois, Observ. 46, p. 463, 464. See also,
Bouhier, ch. 21, § 198, 199.
3 See Henry on Foreign Law, 39. Pothier on Obligations, n. 7, has
explained the meaning of the words, " the nature of the contract," in the
following manner : " Things, which are only of the nature of the contract,
are those, which, without being of the essence, form a part of it, though
not expressly mentioned ; it being of the nature of the contract, that they
shall be included and understood. These things have an intermediate place
between those, which are of the essence of the contract, and those, which
are merely accidental to it, and differ from both of them. They differ from
those which are of the essence of the contract, inasmuch as the contract
may subsist without them, and they may be excluded by the express agree-
ment of the parties ; and they differ from things which are merely acci-
dental to it, inasmuch as they form a part of it without being particularly
expressed, as may be illustrated by the following examples. In the con-
tract of sale, the obligation of warranty, which the seller contracts with
the purchaser, is of the nature of the contract of sale ; therefore the seller,
by the act of sale, contracts this obligation, though the parties do not ex-
press it, and there is not a word respecting it in the contract ; but, as the
obligation is of the nature, and not of the essence, of the contract of sale,
the contract of sale may subsist without it; and, if it is agreed, that the
CH. IV.] RIGHTS OF PARTIES ON TRANSFERS. 191
§ 160. In the next place, as to the obligation of the
contract, which, although often confounded with, is yet
distinguishable from its nature. 1 The obligation of a
contract is the duty to perform it, whatever may be its
nature. It may be a moral obligation, or a legal obli-
gation, or both. But when we speak of an obligation
generally, we mean a legal obligation, that is, the right
to performance, which the law confers on one party, and
the corresponding duty of performance, to which it binds
seller shall not be bound to warranty, such agreement will be valid, and
the contract will continue a real contract of sale. It is also of the nature
of the contract of sale, that, as soon as the contract is completed by the
consent of the parties, although before delivery, the thing sold is at the
risk of the purchaser ; and that, if it happens to perish without the fault
of the seller, the loss falls upon the purchaser, who is, notwithstanding the
misfortune, liable for the price ; but, as that is only of the nature, and not
of the essence, of the contract, the contrary may be agreed upon. Where
a thing is lent, to be specifically returned [commodatur], it is of the nature
of the contract, that the borrower shall be answerable for the slightest
negligence in respect of the article lent. He contracts this obligation to
the lender by the very nature of the contract, and without any thing being
said about it. But, as this obligation is of the nature, and not of the es-
sence of the contract, it may be excluded by an express agreement, that
the borrower shall only be bound to act with fidelity, and shall not be re-
sponsible for any accidents merely occasioned by his negligence. It is also
of the nature of this contract, that the loss of the thing lent, when it arises
from inevitable accident, falls upon the lender. But, as that is of the na-
ture, and not of the essence, of the contract, there may be an agreement
to charge the borrower with every loss, that may happen until the thing is
restored. A great variety of other instances might be adduced from the
different kinds of contracts. Those things which are accidental to a con-
tract, are such as, not being of the nature of the contract, are only included
in it by express agreement. For instance, the allowance of a certain
time for paying the money due, the liberty of paying it by instalments, that
of paying another thing instead of it, of paying to some other person than
the creditor, and the like, are accidental to the contract; because they are
not included in it, without being particularly expressed." Story on Bills,
§ 139.
1 Story on Conflict of Laws, § 266 ; Pardessus, Droit Comm. Tom. 5,
art. 1495, p. 269-271. See 2 Boullenois, Observ. 46, p. 454, 460, 462-
494 ; 3 Burge, Comm. on Col. and For. Lav/, Pt. 2, ch. 20, p. 764, 765.
192 PROMISSORY NOTES. [CH. IV.
the other. 1 This is what the French jurists call, Le lien
du contrat (the legal tie of the contract), Onus conven-
tionis, and what the civilians generally call, Vinculum ju-
ris, or Vinculum obligations? The Institutes of Justi-
nian have thus defined it ; Obligatio est juris vinculum,
quo necessitate adstringimur alia jus rei solvendcn, secundum
nostra civitatis jura? A. contract may, in its nature, be
purely voluntary, and possess no legal obligation. It
may be a mere naked pact [nudum pactum). It may
possess a legal obligation ; but the laws may limit the
extent and force of that obligation in personam, or in rem.
It may bind the party personally, but not bind his es-
tate ; or it may bind his estate, and not bind his person.
The obligation may be limited in its operation or dura-
tion; or it may be revocable or dissoluble in certain
future events, or under peculiar circumstances. 4
§ 161. In the next place, the interpretation of con-
tracts. 5 Upon this subject, there would scarcely seem
to be any room for doubt or disputation. There are
certain general rules of interpretation, recognized by
all nations, which form the basis of all reasoning on the
subject of contracts. The object is to ascertain the real
intention of the parties in their stipulations ; and when
the latter are silent, or ambiguous, to ascertain what is
the true sense of the words used, and what ought to be
implied, in order to give them their true and full
1 See 3 Story, Comm. on Constitution, § 1372-1379 ; Ogden v. Saun-
ders, 12 Wheaton, 213; Pothier on Oblig. art. 1, n. 1, p. 173-175.
2 2 Boullenois, Observ. 46, p. 458-460.
3 Inst. Lib. 3 tit. 14 ; Pothier, Pandect. Lib. 44, tit. 7, P. 1, art. 1, § 1 J
Pothier on Oblig. n. 173, 174.
4 See 2 Boullenois, Observ. 46, p. 452, 454 : Code Civil of France, art.
1168-1196 ; Story on Bills, § 141.
5 Story on Conflict of Laws, § 270.
CH. IV.] RIGHTS OF PARTIES ON TRANSFERS. 193
effect. 1 The primary rule in all expositions of this sort,
is that of common sense, so well expressed in the Di-
gest. In conventionibus contrahentium voluntas, potius quam
verba, spectari placuit? But, in many cases, the words
used in contracts have different meanings attached to
them in different places, by law, or by custom. And,
where the words are, in themselves, obscure or ambigu-
ous, custom and usage in a particular place nmy give
them an exact and appropriate meaning. Hence, the
rule has found admission into almost all, if not into all,
1 See Lord Brougham's striking remarks on this subject, cited in Story
on Conflict of Laws, § 226, c. In Prentiss v. Savage, 13 Mass. R. 23,
Mr. Chief Justice Parker said ; " It seems to be an undisputed doctrine,
with respect to personal contracts, that the law of the place, where they
are made, shall govern in their construction ; except when made with a
view to performance in some other country, and then the law of such coun-
try is to prevail. This is nothing more than common sense and sound
justice, adopting the probable intent of the parties as to the rule of con-
struction. For, when a citizen of this country enters into a contract in
another, with a citizen or subject thereof, and the contract is intended to be
there performed, it is reasonable to presume, that both parties had regard
to the law of the place, where they were, and that the contract was shap'ed
accordingly. And it is also to be presumed, when the contract is to be ex-
ecuted in any other country, than that in which it is made, that the parties
take into their consideration the law of such foreign country. This latter
branch of the rule, if not so obviously founded upon the intention of the
parties as the former, is equally well settled, as a principle in the law of
contracts." Mr. Chancellor Walworth, in Chapman v. Robertson, 6
Paige, R. 627, 630, used equally strong language. " It is an established
principle," said he, " that the construction and validity of personal con-
tracts, which are purely personal, depend upon the laws of the place,
where the contract is made, unless it was made with reference to the laws
of some other place or country, where such contract, in the contemplation
of the parties thereto, was to be carried into effect and performed." 2
Kent, Comm. Lect. 39, p. 457, 458, (3d edit.) ; 3 Burge, Comm. on Col.
and For. Law, Pt. 2, ch. 20, p. 752-764.
2 Dig. Lib. 50, tit. 16, 1. 219. — Many rules of interpretation are found
in Pothier on Obligations, n. 91 - 102 ; in Fonblanque on Equity, B. 1, ch.
6, § 11-20, and notes ; 1 Domat, Civil Law, B. 1, tit. 1, $ 2'; 1 Powell
on Contracts, 370 et seq. ; Merlin Repertoire, Convention, § 7, p. 366.
prom, notes. 17
194 PROMISSORY NOTES. [CH. IV-
systems of jurisprudence, that if the full and entire
intention of the parties does not appear from the words
of the contract, and if it can he interpreted by any cus-
tom or usage of the place where it is made, that course
is to he adopted. Such is the rule of the Digest.
Semper in stipulationibus et in ceeteris contradibus id sequi-
mur, quod actum est. Aut si non appareat, quod actum est,
erit consequens, ut id sequamur, quod in r-egione, in qua
actum est, frequentatur} Conservanda est consuetudo re-
gionis et civitatis (says J. Sande) iibi contractual est,
Omnes enim actiones nostrce (si non aliter fuerit provisum
inter contrahentes) interpretationem recipiunt a consuetudine
loci, in quo contrahitur? Usage is, indeed, of so much
authority, in the interpretation of contracts, that a con-
tract is understood to contain the customary clauses,
although they are not expressed, according to the
known rule, In contradibus tacite veniunt ea, qnce sunt
moris et consuetudinis? Thus, if a tenant is, by custom,
to have the outgoing crop, he will be entitled to it,
although not expressed in the lease. 4 And, if a lease
is entirely silent as to the time of the tenant's quitting,
the custom of the country will fix it. 5 By the law of
England, a month means, ordinarily, in common con-
tracts, as in leases, a lunar month ; but in mercantile
contracts, it means a calendar month. 6 A contract,
1 Dig. Lib. 50, tit. 17, I. 34 ; 1 Domat, Civil Law, B. 1, tit. 1, § 2, n.
9 ; 2 Boullenois, Observ. 46, p. 490 ; 3 Burge, Conim, on Col. and For.
Law, Pt. 2, ch. 20, p. 775, 776.
2 J. Sand. Op. Comm. de Reg. Jur. 1. 9, p. 17; Story on Bills, § 143.
3 Pothier on Oblig.n. 95 ; Merlin, Reportoire, Convention, § 7 ; 2 Kent,
Comm. Lect. 39, p. 555, (3d edit.)
4 Wigglesworth v. Dallison, Doug. R. 201, 207.
5 Webb v. Plummer, 2 Barn. & Aid. 746.
6 2 Black. Comm. 141 ; Catesby's case, 6 Coke, R. 62; Lacon v.
Hooper, 6 T. R. 224 ; 3 Burge, Comm. on Col. and For. Law, Pt. 2, ch.
20, p. 776, 777.
CH. IV.] RIGHTS OF PARTIES ON TRANSFERS. 195
therefore, made in England, for a lease of land for
twelve months, would mean a lease for forty-eight
weeks only. 1 A Promissory Note, to pay money in
twelve months, would mean in one year, or in twelve
calendar months. 2 If a contract of either sort were re-
quired to be enforced in a foreign country, its true inter-
pretation must he everywhere the same, that it is, ac-
cording to the usage in the country where the contract
was made.
§ 162. The same word, too, often has different signi-
cations in different countries. 3 Thus, the term usance,
which is common enough in negotiable instruments,
means, in some countries, a month, in others, two or
more months, and, in others, half a month. A Note,
payable at one usance, must be construed, everywhere,
according to the meaning of the word in the country,
where the contract is made. 4 There are many other
cases illustrative of the same principle. A Note, made
in England, for one hundred pounds, would mean one
hundred pounds sterling. A like Note, made in Ameri-
ca, would mean one hundred pounds in American cur-
rency, which is one fourth less in value. It would be
monstrous, to contend, that, on the English Note, sued
in America, the less sum only ought to be recovered ;
and on the other hand, on the American Note, sued in
England, that one third more ought to be recovered. 5
§ 163. The like interpretation would be applied to
i. Ibid.
2 Chitty on Bills, p. 406, (8th edit. 1833) ; Lang v. Gale, 1 M. & Selw.
Ill; Cockell v. Gray, 3 Brod. & Bing. 187; Leffingwell v. White, 1
John. Cas. 99.
3 Story on Conflict of Laws, § 271.
4 Chitty on Bills, p. 404,405, (8th edit. 1833.) See, also, 2 Boullenois,
Observ. 46, p. 447.
5 See, also, Powell on Contracts, 376 ; 2 Boullenois, Observ. 46, p. 498,
503 ; Henry on Foreign Law, Appendix, 233 ; Pardessus, Droit Comm.
196 PROMISSORY NOTES. [CH. IV.
the case of a Promissory Note, drawn in one country,
and payable in another country, where the same deno-
mination of currency existed in both countries, but re-
presented different values. Thus, for example, a Note
drawn in Boston for one hundred pounds, payable in
London, would be construed to be for one hundred
pounds sterling ; whereas, if a Note were drawn for the
same sum in London, and payable in Boston, it would
be construed to be for one hundred pounds of the lawful
currency of Massachusetts, which, as we have just seen,
is one quarter less in value. In each case, the ground
of interpretation is the presumed intention of the parties,
derived from the nature and objects of the instrument.
§ 164. Hence, it is adopted by the Common Law as
a general rule in the interpretation of contracts, that
they are to be deemed contracts of the place, where
they are made, unless they are positively to be perform-
ed or paid elsewhere. Therefore, a Bill or Note made
in France, and payable generally, will be treated as a
French Note, and governed accordingly by the laws of
France, as to its obligation and construction. So, a
policy of insurance, executed in England, on a French
ship, for the French owner, on a voyage from one French
port to another, would be treated as an English contract,
and, in case of loss, the debt would be treated as an
English debt. Indeed, all the rights, and duties, and
obligations, growing out of such a policy, would be go-
verned by the law of England, and not by the law of
France, if the laws respecting insurance were different
in the two countries. 1
§ 165. But, where the contract is, either expressly or
art. 1492 ; 3 Burge, Comm. on Co], and For Law, Pt. 2, ch. 20, p. 772,
773 ; Story on Conflict of Laws, § 272, a, 307, 308.
i Don v. Lippmann, 5 Clark & Fin. 1, 18 — 20 ; Story on Conflict of
Laws, fy 317.
CH. IV.] RIGHTS OF PARTIES ON TRANSFERS. 197
tacitly, to be performed in any other place, there the
general rule is, in conformity to the presumed intention
of the parties, that the contract, as to its validity, na-
ture, obligation, and interpretation, is to be governed
by the law of the place of performance. 1 This would
seem to be a result of natural justice ; and the Koman
Law has adopted it as a maxim ; Contraxisse wiusquisque
in eo loco intelligitiir in quo id solveret, se obligavit ; 2 and
again, in the law, Aid ubi quisque contraxerit. Contrac-
tum aide-m non idique eo loco intelligitiir, quo negotium ges-
tam sit ; sed quo solvenda est pecunia? The rule was
fully recognized, and acted on, in a recent case, by the
Supreme Court of the United States, where the Court
said, that the general principle, in relation to contracts
made in one place, to be executed in another, was well
settled ; that they are to be governed by the laws of the
place of performance. 4
§ 166. The like question, also, often arises in cases
respecting the payment of interest. 5 The general rule
is, that the interest is to be paid on contracts according
to the law of the place, where they are to be performed,
in all cases, where interest is expressly or impliedly to
be paid. 6 Usurarum modus ex more regionis, ubi contrac-
1 Story on Conflict of Laws, § 280 ; 2 Kent, Comm. Lect. 37, p. 393,
391, and Lect. 39, p. 459, (4th edit.) ; Casaregis, Disc. 179; 1 Emerigon,
c. 4, § 8; Voet, De Stat. § 9,ch. 2, n. 15, p. 271, (edit. 1715) ; Id. p. 328,
(edit. 16P>I) ; Boullenois, Quest, Contr. des Lois, p. 330, &c. ; 3 Bnro-e
Comm. on Col. and For. Law, Pt. 2, ch. 20, p. 771, 772; Don. v. Lipp-
tnann, 5 Clark & Finn. R. 1, 13, 19.
2 Di<r. Lib. 44, tit. 7, 1. 21 ; Story on Conflict of Laws, §233.
3 Dig. Lib. 42, tit. 5, 1. 3 ; Story on Bills, § 147.
4 Andrews v. Pond, 13 Peters, R. 65 ; Guddin v. Shipley, 7 B. Mun-
roe, Pv. 578.
5 Siory on Conflict of Laws, § 281.
6 Story on Conflict of Laws, § 292-293 e, 304; Conner v. Bellamont,
2 Vern. R. 382 ; Cash i\ Kennion, 11 Ves. R, 314 ; Robinson v. Bland/2
17*
198 PROMISSORY NOTES. [CH. IV-
turn est, constitiiitnr, says the Digest, 1 Thus, a Note
made in Canada, where interest is six per cent,, payable
with interest in England, where it is five per cent.,
Burr. R. 1077 ; Ekins v. East India Company, 1 P. W. 695 ; Ranelaugh
v. Champante, 2 Vern. R. 395, and note, Ibid, by Raithby ; 1 Chitty on
Comm. and Manuf. ch. 12, p. 650, 651 ; 3 Chitty, Id. ch. 1, p. 109 ; Eq.
Abridg. Interest, E. ; Henry on Foreign Law, 43, note ; Id. 53 ; 2 Kaimes,
Equity, B. 3, ch. 8, § 1 ; 2 Fonbl. Eq. B. 5, ch. 1, $ 6, and note ; Bridg-
man, Equity Digest, Interest, vii. ; Fanning v. Consequa, 17 John. R. 511 ;
S. C. 3 John. Ch. R. 610 ; Hosford v. Nichols, 1 Paige R. 220 ; Hough-
ton v. Page, 2 N. Hamp. R. 42 ; Peacock v. Banks, 1 Minor, R. 387 ;
Lapice v. Smith, 13 Louis. R. 91, 92 ; Thompson v. Ketcham, 4 John.
R. 285 ; Healy v. Gorman, 3 Green, N. J. R. 328 ; 2 Kent, Comm. Lect.
39, p. 460, 461, (3d edit.). — A case illustrative of this principle, recently
occurred before the House of Lords. A widow, in Scotland, entered into
an obligation to pay the whole of her deceased husband's debts. It was
held, by the Court of Session in Scotland, that the English creditors, on
contracts made in England, were entitled to recover interest in all cases,
where the law of England gave interest, and not, where it did not. There-
fore, on Bonds, and Bills of Exchange, interest was allowed, and, on sim-
ple contracts, not. And this decision was affirmed by the House of Lords.
Montgomery v. Bridge, 2 Dow & Clarke, R. 297. The case of Arnottw.
Redfern, 2 Carr. & Payne, 88, may, at first view, seem inconsistent with
the general doctrine. There, the original contract was made in London
between an Englishman and a Scotchman. The latter agio e d to o-o to
Scotland, as agent, four times a year, to sell goods and collect debts for the
other party, to remit the money, and to guarantee one fourth part of the
sales ; and he was to receive one percent, upon the amount of sales, &c.
The agent sued, for a balance of his account, in Scotland, and the Scotch
Court allowed him interest on it. The judgment was afterwards sued in
England ; and the question was, whether interest ought to be allowed.
Lord Chief Justice Best said ; — "Is this an English transaction ? For, if
it is, it will be regulated by the rules of English law. But, if it is a Scotch
transaction, then the case will be different." He afterwards added; —
" This is the case of a Scotchman, who comes into England, and makes a
contract. As the contract was made in England, although it was to be ex-
ecuted in Scotland, I think it ought to be regulated according to the rules
of the English Law. This is my present opinion. These questions of in-
ternational law do not often occur." And he refused interest, because it
was not allowed by the Law of England. The Court afterwards ordered
i Dig. Lib. 22, tit. 1,1. 1 ; 2 Burge, Comm. on Col, and For. Law, Pt.
2, ch. 9, p. 860-862.
CH. IV.] RIGHTS OF PARTIES ON TRANSFERS. 199
bears English interest only. 1 Loans, made in a place,
bear the interest of that place, unless they are payable
elsewhere. 2 And, if payable in a foreign country, they
may bear any rate of interest, not exceeding that which
is lawful by the laws of that country. 3 And on this
account, a contract for a loan, made and payable in
a foreign country, may stipulate for interest higher
than that allowed at home. 4 If the contract for interest
be illegal there, it will be illegal everywhere. 5 But, if
interest to be given, upon the ground, that the balance of such an account
would carry interest in England. But Lord Chief Justice Best rightly
expounded the contract, as an English Contract, though there is a slight
inaccuracy in his language. So far as the principal was concerned, the con-
tract to pay the commission was to be paid in England. The services of
the agent were to be performed in Scotland. But the whole contract
was not to be executed exclusively there by both parties. A contract,
made to pay money in England, for services performed abroad, is an Eng-
lish contract, and will carry English interest,
i Schofield v. Day, 20 John. R. 192.
2 De Wolf v. Johnson, 10 Wheaton, R. 367, 383; Consequa v. Wil-
lings, 1 Peters, Cir. Ct. R. 225 ; 2 Boullenois, Observ. 46, p. 477, 478 ;
Andrews v. Pond, 13 Peters, R. 65, 78.
3 Ibid. ; 2 Kent, Comm. Lect. 39, p. 460,461, (3d edit.) ; Thompson v.
Ketcham, 4 John. R. 285 ; Healy v. Gorman, 3 Green, N. J. R. 328.
4 2 Kent, Comm. Lect. 39, p. 460, 461, (3d edit.) ; Hosford v. Nichols,
1 Paige, R. 220; Houghton v. Page, 2 N. Hamp. R. 42; Thompson v.
Powles, 2 Simons, R. 194. — In this last case, the Vice-Chancellor said ;
" With respect to the question of usury, in order to hold the contract to be
usurious, it must appear, that the contract was made here, and that the
consideration for it was to be paid here. It should appear, at least, that
the payment was not to be made abroad ; for, if it was to be made abroad,
it would not be usurious." See, also, Andrews v. Pond, 13 Peters, R. 65,
78; De Wolfs. Johnson, 10 Wheat. R. 383.
5 2 Kaimes, Equity, B. 3, ch. 8, § 1 ; Hosford v. Nichols, 1 Paige, R.
220; 2 Boullenois, Observ. 46, p. 477. — In the case of Thompson v.
Powles, 2 Simons, R. 194, the Vice-Chancellor said ; " In order to have
the contract (for stock) usurious, it must appear, that the contract was
made here, and that the consideration for it was to be paid here." See,
also, Yrisarri v. Clement, 2 Carr. & Payne, R. 223. In Hosford v. Nich-
ols, 1 Paige, R. 2-20, where a contract was made for the sale of lands in
New York, by citizens then resident there, and the vendor afterwards
200 PROMISSORY NOTES. [CH. IV.
it be legal, where it is made, it will be of universal obli-
gation, even in places, where a lower interest is pre-
scribed by law. 1
§ 167. The question, therefore, whether a contract is
usurious or not, depends, not upon the rate of the in-
terest allowed, but upon the validity of that interest in
the country, where the contract is made, and is to be
executed. 2 A contract, made in England, for advances
to be made at Gibraltar, at a rate of interest bevond
that of England, would, nevertheless be valid in Eng-
land ; and so, a contract to allow interest upon credits
given in Gibraltar, at such higher rate, would be valid
of the English creditor. 3
§ 168. In the next place, as to the effect. In the
effect of the Lex loci contractus are included those conse-
quences and incidents, which, by law, are attached to,
or operate upon, contracts. Some of these have been
already enumerated in considering the obligation of
contracts. There are others, again, that deserve to be
here enumerated. And, here, it is important to sug-
gest, that, although the law acts upon contracts, it does
not enter into them, or form a part of the agreement it-
self. 4 ) It simply regulates the rights, which are ac-
quired under the contract, the obligations, which may
be conferred, and the circumstances, which will dissolve,
removed to Pennsylvania, where the contract was consummated, and a
mortgage given to secure the unpaid purchase money, wilh New York in-
terest, (which was higher than that of Pennsylvania,) the Court thought
the mortgage not usurious, it being only a consummation of the original
bargain made in New York,
i Ibid.
2 Story on Conflict of Laws, § 292 ; Harvey v. Archbold, 1 Ryan &
Mood, II. 184; Andrews v. Pond, 13 Peters, K. 65, 78; Story on Con-
flict of Laws, $ 213.
3 Ibid. ; Suiry on Bills, $ 143-149.
4 Ogden v. Sanders, 12 Wheat. 213,324, 338-344.
CH. IV.] RIGHTS OF PARTIES ON TRANSFERS. 201
qualify, or annul those obligations ; or, in other words,
what shall be a valid defence upon the merits to them,
and what a good discharge of them. And here the
general rule is, that a defence or discharge, good by the
law of the place, or country, where the contract is made,
or is to be performed, is to be held of equal validity and
force in every other place or country, where the question
may arise, or be litigated. 1 Hence, infancy, if a valid
defence by the Lex loci contractus, will be a valid de-
fence everywhere. 2 So, a tender and refusal, good by
the same law, either as a full discharge, or as a present
fulfilment of the contract, is of equal validity, and will
be equally respected everywhere else. 3 Payment in
paper-money bills, or in other things, if good by the
same law, will be deemed a sufficient payment every-
where. 4 And, on the other hand, where a paj^ment by
negotiable Bills or Notes is, by the Lex loci, held to be
conditional payment only, it will be so held, even in
states, where such payment, under the domestic law,
would be held absolute. 5 So, if by the law of the place
of a contract, (even although negotiable,) equitable de-
fences are allowed in favor of the maker, any subse-
quent indorsement will not change his rights in regard
to the holder. 6 The latter must take it cum onere?
1 Story on Conflict of Laws, § 331, 335, 336, 339, 351, a-351, d ;
Story on Bills, § 161-163 ; Powers v. Lynch, 3 Mass. R. 77.
2 Story on Conflict of Laws, § 332.
3 Story on Conflict of Laws, § 332 ; Thompson v. Ketcham, 8 John.
R. 190.
4 Warder v. Arell, 2 Wash. Virg. R. 359 ; 1 Brown, Ch. R. 376 ; Sea-
wright v. Calbraith, 4 Dall. 325 ; Bartsch v. Atwater, 1 Conn. R. 409.
5 Bartsch v. Atwater, 1 Conn. R. 409. See other cases cited, 3 Burge,
Comm. on Col. and For. Law, Pt. 2, ch. 21, § 7, p. 876-878.
6 Story on Conflict of Laws, § 317.
7 Ory v. Winter, 16 Martin, R. 277. See also Evans v. Gray, 12 Mar-
202 PROMISSORY NOTES. [CH. IV.
The same rule applies to the acceptance of a Bill of
Exchange; although it is absolute by our law, yet, if it
be qualified by the law of the country, where the ac-
ceptance is made, the qualification thus acting upon it
accompanies it everywhere. 1 Hence it is, also, that a
discharge under the bankrupt or insolvent law of the
country, where the contract is made, or to be performed,
is a valid discharge thereof everywhere. 2
§ 169. The converse doctrine is equally well esta-
blished, and turns upon the like considerations, namely,
that a discharge of a contract by the law of a country
where it is not made, or to be performed, will not be a
discharge of it in any other country. 3 Therefore, a dis-
charge of the debtor under the insolvent laws of a coun-
try where it was not made, or to be performed, will not be
a discharge of the contract in any other country. 4 And
this doctrine applies, as well to negotiable instruments,
as to other contracts. 5
§ 170. A few illustrations of these rules, as applicable
to Promissory Notes, and not already suggested, may be
useful in this place. Thus, for example, if a Promissory
tin, R. 475 ; Chartres v. Cairnes, 16 Martin, R. 1 ; Story on Conflict of
Laws, § 332.
1 Story on Conflict of Laws, § 333 ; Burrows v. Jemino, 2 Str. R. 733 ;
Story on Bills, § 165.
2 Story on Conflict of Laws, § 335, 336, 340, 341 ; Baker v. Wheaton,
5 Mass. R. 509 ; Hicks v. Brown, 12 John. R. 142; Powers v. Lynch, 3
Mass. R. 77 ; Hull v. Blake, 13 Mass. R. 153.
3 Story on Conflict of Laws, § 342 ; Story on Bills, § 165.
4 Story on Conflict of Laws, § 342 ; Smith v. Buchanan, 1 East, R. 6,
11 ; Lewis v. Owen, 4 Barn. & Aid, 654 ; Van Raugh v. Van Arsdaln, 2
Caines, R. 154; Le Roy v. Crowinshield, 2 Mason, R. 151; Smith v.
Smith, 2 John. R. 235 ; Bradford v. Farrand, 13 Mass. R. 18 ; 3 Kent,
Comm. Lect. 37, p. 392, 393, (5th edit.) ; Id. Lect. 39, p. 458, 459, (5th
edit.)
5 Story on Conflict of Laws, § 343 - 346 ; Story on Bills, § 166-171.
CH. IV.] RIGHTS OF PARTIES ON TRANSFERS. 203
Note is made in one country, but is payable in another
country, the days of grace allowable thereon will be go-
verned by the law and custom of the place, where the
Note is payable. 1 Another illustration is to be found in
the different effects of an indorsement in different coun-
tries. In France, (as we have seen, 2 ) a blank indorse-
ment of a Promissory Note conveys no title or property
in the Note to the holder, but only a simple authority
to receive the money due thereon; and this law will
regulate the rights of the holder, as well against the
maker, as against the inclorser, in a suit brought in any
other country, where a different rule prevails. 3
§ 171. Another illustration may be derived from the
different obligations, which an indorsement creates, in
different states. By the general Commercial Law, in
order to entitle the indorsee to recover against any an-
tecedent indorser upon a negotiable Note, it is only ne-
cessary, that due demand should be made upon the
maker of the Note at its maturity, and due notice of
the dishonor, given to the indorser. But, by the laws
of some of the American States, it is required, in order
to charge an antecedent indorser, not only that due de-
mand should be made, and due notice given, but that a
suit shall be previously commenced against the maker,
and prosecuted with effect in the country, where he re-
i Story on Bills, § 155, 170, 177, 334 ; Story on Conflict of Laws, § 316,
347, 361 ; 2 Kent, Comm. Lect. 39, p. 459, 460, (5th edit.) ; Chiity on
Bills, ch. 5, p. 191, 193, (8th edit.) ; Id. ch. 9, p. 409; Bank of Washing-
ton v. Triplett, 1 Peters, Sup. Court, R. 30, 34; Pothier, De Change, n.
15, 155 ; Pardessus, Droit Comm. Torn. 5, § 1495 ; 2 Boullenois, Observ,
28, p. 531, 532 ; Mascard. Conclus. 7, note 72.
2 Ante, § 140.
3 Story on Conflict of Laws, § 272 ; Story on Bills, § 156 ; Trimbey v,
Vignier, 1 Bing. New Cas. 151, 158, 160.
204 PROMISSORY NOTES. [CH. IV.
sides ; and then, if payment cannot be obtained from
him under the judgment, the indorsee may have recourse
to the indorser. In such a case, it is clear, upon prin-
ciple, that the indorsement, as to its legal effect and
obligation, and the duties of the holder, must be go-
verned by the law of the place, where the indorsement
is made. 1
§ 172. Another illustration of the doctrine may arise
in the case of a note made in one country, and indorsed
by the payee to the holder, in another country. What
law is to govern in respect to the rights of the holder
against the maker ? This depends upon the place where
the maker undertakes to pay the Note ; for the law of
that place is to govern as to his rights and obligations.
Now, a negotiable Note, made in a particular country,
is to be deemed a Note governed by the law of that
country, whether it is expressly made payable there, or
is payable generally, without naming any particular
place ; since, at most, under the latter circumstances,
it is as much payable in that country, as elsewhere. 2
Hence, such a Note makes the maker liable only accord-
ing to the law of the country where the Note is executed,
although indorsed in another country ; and his liabilities,
and so, also, his rights, as, for example, the right to set
up equitable defences against the Note, if allowed by
the country, where the Note is executed, are regulated
by the law of the same country. 3
1 Story on Conflict of Laws, § 316 ; Story on Bills, § 157 ; Williams v.
Wade, 1 Mete. R. 82, 83 ; Worcester Bank v. Wells, 8 Mete. R. 107 ;
Bernard v. Barry, 1 Greene, Iowa, R. 388 ; Carroll v. Upton, 2 Sandford,
Superior Ct. N. Y. R. 171.
2 Story on Conflict of Laws, § 317, 332, 340, 343, 344 ; Story on Bills,
§ 158, 164, 166 - 169 ; Ory v. Winter, 16 Martin, Louis. R. 277.
3 Ibid. ; Story on Conflict of Laws, § 346 ; Ory v. Winter, 16 Martin,
CH. IV.] RIGHTS OF PARTIES ON TRANSFERS. 205
§ 173. Questions have also arisen, whether negotiable
Notes and Bills, made in one country, are transferable
in other countries, so as to found a right of action in
the holder against the other parties. Thus, a question
occurred in England, in a case, where a negotiable Note,
made in Scotland, and there negotiable, was indorsed,
and a suit brought in England by the indorsee against
the maker, whether the action was maintainable. It
was contended, that the Note, being a foreign Note, was
not within the statute of Anne (3 and 4 Anne, ch. 9,)
which made Promissory Notes payable to order, assign-
able and negotiable ; for that statute applied only to
inland Promissory Notes. But the Court overruled the
objection, and held the Note suable in England by the
indorsee, as the statute embraced foreign, as well as
domestic Notes. 1 In another case, a Promissory Note,
made in England, and payable to the bearer, was trans-
ferred in France ; and the question was made, Whether
the French holder could maintain an action thereon in
England ? such Notes not being by the law of France
negotiable ; and it was held that he might. 2 But in
each of these cases the decision was expressly put upon
the provisions of the statute of Anne respecting Pro-
R. 277 ; Skcum v. Pomeroy, 6 Cranch, 221 ; De la Chaumette v. Bank of
England, 9 Barn. & Cressvv. 208. Contra, Blanchard v. Russell. 13
Mass. R. 1, 11, 12 ; Story on Bills, § 163, 170.
1 Story on Conflict of Laws, § 353 ; Milne v. Graham, 1 Barn. &
Cressw. 192. — It does not distinctly appear upon the Report, whether the
indorsement was made in Scotland or in England. But it was probably in
England. But see Carr v. Shaw, Bayley on Bills, p. 16, note, (5th edit.
1830) ; Id. p. 22, (American edition, by Phillips & Sewall, 1836).
2 De la Chaumette v. the Bank of England, 2 Barn. & Adolph. R. 385 ;
S. C. 9 Barn. & Cressw. 208; and see Chitty on Bills, p. 551, 552, (8th
edit.) ; Story on Conflict of Laws, § 346.
PROM. NOTES. 18
206 PROMISSORY NOTES. [CH. IV.
missory Notes, leaving wholly untouched the general
doctrine of international law. 1
§ 174. Several other cases may be put upon this sub-
ject. In the first place, suppose a Note, negotiable by
the law of the place, where it is made, is there trans-
ferred by indorsement ; can the indorsee maintain an
action in his own name against the maker in a foreign
country, (where both are found,) in which there is no
positive law on the subject of negotiable Notes applica-
ble to the case ? If he can it must be upon the ground,
that the foreign tribunal would recognize the validity
of the transfer by the indorsement, according to the
law of the place where it is made. According to the
doctrine maintained in England, as choses in action are
by the Common Law (independent of statute) incapable
of being transferred over, it might be argued that he
could not maintain an action, notwithstanding the instru-
ment was well negotiated, and transferred by the law of
the place of the contract. 2 So far as this principle of
the non-assignability of choses in action would affect
transfers in England, it would seem reasonable to follow
it. But the difficulty is, in applying it to transfers
made in a foreign country, by whose laws the instru-
ment is negotiable, and capable of being transferred, so
as to vest the property and right in the assignee. In
such a case, it would seem, that the more correct rule
would be, that the Lex loci contractus ought to govern ;
because the holder under the indorsement has an imme-
diate and absolute right in the contract vested in him,
1 Story on Bills, § 57, 171 ; Story on Conflict of Laws, § 353 ; Ante,
% 38.
2 Story on Conflict of Laws, § 354. See 2 Black. Comm. 442 ; Innesu.
Dunlop, 8 T. R. 595 ; Jeffery v. McTaggart, 6 Made & Selw. R. 326 ;
Story on Conflict of Laws, § 565, 566.
CH. IV.] EIGHTS OP PARTIES ON TRANSFERS. 207
as much. as he would have in goods transferred to him.
Under such circumstances, to deny the legal effect of
the indorsement is, to construe the obligation, force, and
effect of a contract, made in one place, by the law of
another place. The indorsement, in the place where it
is made, creates a direct contract between the maker
and the first indorsee ; and, if so, that contract ought
to be enforced between them everywhere. It is not a
question, as to the form of the remedy, but as to the
right. 1
§ 175. In the next place, let us suppose the case of
a negotiable Note, made in a country, by whose laws it
is negotiable, and actually indorsed in another, by whose
laws a transfer of Notes by indorsement is not allowed.
Could an action be maintained by the indorsee, against
the maker, in the courts of either country. If it could
be maintained in the country, whose laws do not allow
such a transfer, it must be upon the ground that the
original negotiability, by the Lex loci contractus, is per-
mitted to avail, in contradiction to the Lex fori. On
the other hand, if the suit should be brought in the
country where the Note was originally made, the same
objection might arise, that the transfer was not allowed
by the law of the place, where the indorsement took
place. But, at the same time, it may be truly said that
the transfer is entirely in conformity to the intent of the
parties, and to the law of the original contract. 2
§ 176. In the next place, let us suppose the case of
1 See Trimbey v. Vignier, 1 Bing. New Cases, 159-161 ; Story on
Conflict of Laws, § 353, a, where the same reasoning seems to have ap-
plied ; Id. § 565, 566.
2 Story on Conflict of Laws, § 356. See Chitty on Bills, ch. 6, p. 218,
219, (8th London edit.) See Kaimes on Equity, B. 3, ch. 8, § 3 ; Story
on Conflict of Laws, § 353, 354. — In the cases of Milne v. Graham, 1
208 PROMISSORY NOTES. [CH. IT,
a Note, not negotiable by the law of the place, where it
is made, but negotiable by the law of the place where
it is indorsed. Could an action be maintained in either
country, by the indorsee, against the maker ? It would
seem, that, in the country, where the Note was made, it
could not ; because it would be inconsistent with its own
laws. But the same difficulty would not arise in the
country, where the indorsement was made ; and, there-
fore, if the maker used terms of negotiability in his
contract, capable of binding him to the indorsee, there
would not seem to be any solid objection to giving the
contract its full effect there. And so it has been accord-
ingly adjudged, in the case of a Note made in Connec-
ticut, payable to A., or order, but by the laws of that
State, not negotiable there, and indorsed in New York ?
where it was negotiable. In a suit in New York, by
the indorsee against the maker, the exception was taken
and overruled. The Court on that occasion, said, that
personal contracts, just in themselves, and lawful in the
place, where they are made, are to be fully enforced,
according to the law of the place, and the intent of the
parties, and that this is a principle which ought to be
universally received and supported. But this admission
of the Lex loci contractus can have reference only to the
nature and construction of the contract and its legal
effect, and not to the mode of enforcing it. And the
Court ultimately put the case expressly upon the ground
that the Note was payable to the payee, or order ; and,
, therefore, the remedy might well be pursued, according
Barn. & Cressw. 192, De la Chaumette v. Bank of England, 2 Barn. &
Adolp. 385, and Trimbey v. Vignier, 1 Bing. N. Cas. 151, the Promissory
Notes were negotiable in both countries, as well where the note was made
as where it was transferred.
OH. IV.] RIGHTS OF PARTIES ON TRANSFERS. 209
to the law of New York, against a party who had con-
tracted to pay to the indorsee. 1 But, if the words, " or
order," had been omitted in the Note, so that it had not
appeared that the contract between the parties origin-
ally contemplated negotiability, as annexed to it, a
different question might have arisen, which would more
properly come under discussion in another place ; since
it seems to concern the interpretation and obligation of
contracts, although it has sometimes been treated as
belonging to remedies. 2
§ 177. In the next place, suppose a negotiable Note
is made in England, by a person domiciled there, but it
is payable in Paris, and is indorsed by the payee in
England, to a holder domiciled there ; if, upon due pre-
sentment for payment in Paris, it should be dishonored,
what notice is to be given by the holder to the indorser,
(the payee) ? Is it to be according to the law of France,
or of England ? for, as to the time of giving notice, the
law of France differs from that of England. It has
been held, in the case of a Bill, (and it is not distin-
guishable from that of a Note,) that the notice is to be
given according to the law of France, and not of Eng-
land. 3 But there is some reason to doubt the correct-
ness of the decision, since the indorsement carries as
an incident, the right to notice, and the contract, created
by the indorsement, when written out, would seem to
Import, that the indorser agrees to pay upon notice, ac-
1 Story on Conflict of Laws, § 357; Lodge v. Phelps, 1 John. Cas. 139;
S. C. 2 Caines, Cas. in Error, 321. See Kaimes on Equity, B. 3, ch. 8,
$ 4 ; 3 Kent, Comm. Lect. 44, p. 88, (5th edit.)
2 See Chitty on Bills, ch. 6, p. 218, 219, (8th London edit.) ; 3 Kent,
Comm. Lect. 44, p. 77, (5th edit.) ; Story on Conflict of Laws, § 253, a,
257 ; Story on Bills, § 173- 175.
3 Rothschild v. Currie, 1 Adolp. & Ellis, New R. 43.
18
•
210 PROMISSORY NOTES, [CH„ IV,
cording to the law of the place, where the contract is
made. 1
§ 178. There remain some few other considerations,
applicable to transfers by indorsement, which require
notice in this place. In the first place, then, as to the
time of transfer. In general, it may be stated, that a
transfer may be made at any time, while the Note re-
mains a good subsisting unpaid Note, whether it be
before or after it has arrived at maturity. 2 But the
rights of the holder against the antecedent parties may
be most materially affected by the time of the transfer.
If the transfer is made before the maturity of the Note
to a bona fide holder, for a valuable consideration, he will
take it free of all equities between the antecedent par-
ties, of which he has no notice. 3 If the transfer is after
1 Story on Bills, § 177, note ; Id. § 285, 296, 366, 391. This subject
will be more fully considered under the chapter on Notices.
2 Chiity on Bills, ch. 6, p. 242, (8th edit. 1833) ; Muiford v. Walcot, 1
Ld. Raym. 574; Boehm v. Stirling, 7 Term. R. 423; Bayley on Bills,
ch. 5, § 3, p. 156 - 158, (5th edit! 1830) ; 1 Bel!. Coram. B. 3, ch. 2, § 4,
p. 402, 403, (5th edit.) ; Havens v. Huntington, 1 Cowen, R. 387 ; Leavitt
v. Putnam, 1 Sandfotd, Superior Ct. N. Y. R. 199 ; Story on Bills, § 183,
191. — Notes are now rarely drawn payable on demand, and, therefore,
the principles applicable to the point, when they are to be deemed oveidue,
or not, will more naturally arise, when we come to the consideration of the
cases of Notes and checks payable on demand. In the cases of Notes
made payable at sight, or at so many days after sight, the time when they
should be presented, and, of course, the time when they shall be deemed
overdue, will be discussed under the head of the time when Notes are to
be presented.
3 Story on Bills, § 14, 187; Chitty on Bills, ch. 6, p. 220, 221, 210-
243, (8th edit. 1833) ; Boehm v. Stirling, 7 T. R. 423; Bayley on Bdls,
ch. 5, § 3, p. 157-163, 166, (5th edit. 1830) ; Taylor v. Mather, 3 Term.
R. 83, note; Brown v. Davis, 3 Term. R. 80; Bosanquet v. Dudman, 1
Stark. R. 1 ; Dunn v. O'Keeffe, 5 M. & Selw. 282, 6 Taunt. R. 305;
Thompson v. Gibson, 13 Martin, R. 150; Marston v. Allen, 8 Mees. &
Wels. 504; Savings Bank of New Haven v, Bates, 8 Conn. it. 505;
Swift v. Tyson, 16 Peters, II. L
CH. IV.] RIGHTS OF PARTIES ON TRANSFERS. 211
the maturity of the Rote, the holder takes it as a dis-
honored Note, and is affected by all the equities between
the original parties, whether he has any notice thereof
or not. 1 But when we speak of equities between the
parties, it is not to be understood, by this expression,
that all sorts of equities existing between the parties,
from other independent transactions between them, are
intended ; but only such equities as attach to the par-
ticular Note, and, as between those parties, would be
available, to control, qualify, or extinguish any rights
arising thereon. 2 [The true test to determine whether
a Note is subject to an equity, set up by the maker, is
this : Could the payee at the time he transferred the
Note, have maintained a suit upon it against the maker,
if it had then been mature? 3 ] Still, however, subject
to such equities, the holder, by indorsement after the
maturity of a Note, will be clothed with the same rights
and advantages, as were possessed by the indorser, and
may avail himself of them accordingly. 4
§ 179. The law of France, in a great measure, re-
cognizes the like distinction between indorsements be-
fore, and indorsements after, the maturity of a Note.
1 Ibid ; Bayley on Bills, cb. 5, § 3, p. 162, 163, (5th edit. 1830) ; Chitty
on Bills, cb. fl, p. 243, 244, (8th edit. 1833) ; Lee v. Zagury, 8 Taunt. R.
114; Rothschild v. Corney, 9 Barn. & Cressw. 391; 3 Kent, Comrra.
Lect. 45, p. 91, 92, (4th edit.) ; Down v. Hailing, 4 Barn. & Cressw. 330;
Andrews v. Pond, 13 Peters, R. 65. — It seems, that, in Scotland, the in-
dorsement of a Bill, which is overdue, does not affect the indorsee with the
equities between the original parties, unless there are some marks of dis-
honor on the Bill. 1 Bell, Comm. B. 3, ch. 2, § 4, p. 403, (5th edit.)
2 Bayley on Bills, ch. 5, § 3, p. 161, 162, (5lh edit. 1830) ; Burrowgh v.
Moss, 10 Barn. & Cressw. 563 ; Story on Bills, § 187, note (3) ; White-
head v. Walker, 10 Mees. & Wels. 696.
3 Furnis »•. Gilchrist 1 Sandf.nrd, Superior Ct. N. Y. R. 53.
4 Chiuy on Bills, ch. 0, p. 245, (8lh edit. 1833) ; Chalmers v, Lanion,
1 Camp. R. 383.
212 PROMISSORY NOTES. [CH. IV.
In the latter case, all the equities between the other
parties are not only let in, but even those of the credit-
ors of the indorser, who have, before the indorsement,
and after the maturity, levied attachments of the debt
in the hands of the debtor. 1
§ 180. But there is a period, when Promissory Notes
cease altogether to be negotiable, in whosesoever hands
they may then be, so far as respects the antecedent par-
ties thereto, who would be discharged therefrom by the
payment thereof. Thus, for example, when a Note has
once been paid by the maker, after it has become due,
(although not, if paid before due, and the fact be un-
known to the holder, 2 ) it loses all its validity, and can
no longer be negotiable. 3 So, if it be dishonored by the
maker, and it is then taken up by the payee, or first
indorser, he cannot negotiate it, so as to charge the sub-
sequent indorsers, although he might, so as to charge
himself, or the maker, if the latter be liable to him. 4
Still, however, Notes remain negotiable even after pay-
ment, so far as respects all parties, who shall knowingly
negotiate the same afterwards; for, in such a case, the
negotiation cannot prejudice any other persons, and will
only charge themselves. 5 [But the indorsement of a
1 Pardessus, Droit Comm. Tom. 2, art. 351, 352 ; Chitty on Bills, ch. 6,
p. 242, and note c, (Sth edit. 1833) ; Story on Bills, § 220, 221.
2 Bayley on Bills, ch. 5, §3, p. 166, (Sth edit. 1830) ; Burridge v. Man-
ners, 3 Camp. R. 194 ; Chitty on Bills, ch. 6, p. 248, 249, (Sth edit. 1833.)
3 Bayley on Bills, ch. 5, § 3, p. 165, 166, (Sth edit. 1830) ; Beck v. Rob-
ley, 1 H. Black. 89, note ; Chitty on Bills, ch. 6, p. 248, (8th edit. 1833) ;
Bartrum v. Caddy, 9 Adolp. & Ellis, 275, 281.
4 Ibid. ; Callow v. Lawrence, 3 Maule & Selw. 95; Hubbard v. Jack-
son, 4 Bing. R. 390 ; Leavitt v. Putnam, 1 Sandford, Superior Ct. N. Y.
R. 199; Chitty on Bills, ch.6, p. 248, 249, (8th edit. 1833.)
5 Bayley on Bills, ch. 5, $ 3, p. 166, (5th edit. 1830); Boehm v. Stir-
ling, 7 Term R. 423 ; Callow v. Lawrence, 3 M. & Selw. 95 ; Hubbard
v. Jackson, 4 Bing. R. 390; Guild v. Eager, 17 Mass. R. 615 ; Havens v.
CH. IV.] RIGHTS OF PARTIES ON TRANSFERS. 213
negotiable Note, after its dishonor, is a new and inde-
pendent contract distinct from the original Note, and in
its effect between the indorser and indorsee, distinct
from the negotiable character of such Note ; so that if
indorsed to a particular person, by name, without add-
ing the words, " or order," or equivalent words of nego-
tiability, he cannot transfer it by indorsement so as to
enable his indorsee to sue upon it in his own name. 1 ]
Huntington, 1 Cowen, R. 387 ; Mead v. Small, 2 Greenl. R. 207; Story
on Bills, § 223.
1 Leayitt v. Putnam, 1 Sandford, Superior Ct, R. N. Y. 199.
214 PROMISSORY NOTES. [CH. V.
CHAPTER V.
PROMISSORY NOTES — CONSIDERATION, WHAT IS SUFFICIENT;
AND BETWEEN WHOM NECESSARY.
§ 181. Having thus ascertained the general rights,
obligations, and duties of the different parties to Pro-
missory Notes, and the operation of the Lex loci con-
tractus, which is resorted to, in order to ascertain and
regulate the rights, obligations, and duties, growing out
of them, we may next proceed to the examination of
the question, What consideration is, in point of law, re-
quired, in order to give those rights, obligations, and
duties a solid support, so as to make them capable of
being enforced and vindicated in courts of justice?
Promissory Notes, like Bills of Exchange, enjoy, as
has been already suggested, 1 the privilege, conceded to
no other unsealed instruments, of being presumed to
be founded upon a valid and valuable consideration.
Hence, between the original parties, and, a fortiori, be-
tween others, who, by indorsement or otherwise, become
bond fide holders, it is wholly unnecessary to establish,
that a Promissory Note was given for such a considera-
tion; and the burden of proof rests upon the other
party, to establish the contrary, and to rebut the pre-
sumption of validity and value, which the law raises for
1 Ante, § 7.
CH. V.] CONSIDERATION SUFFICIENCY OF. 215
the protection and support of negotiable paper. 1 Still,
however, this does not dispense, as we shall presently
see, with the existence of an actual, valid, and valuable
consideration to support the Note ; but it only shifts
the burden of proof from the plaintiff to the defend-
ant. 2
§ 182. But, besides the question of the existence of
a consideration, another may arise ; In what cases, and
between what parties, the consideration, on which the
Note is founded, or on which it has been transferred, is
inquirable into ? And under what circumstances may
the want, or failure, or illegality of the consideration be
insisted on, by way of defence or bar to the right of
recovery on the Note, not only between the original
parties, but also between them and others, possessing a
derivative title thereto, under an indorsement, or other-
wise, from them ? 3 Let us, therefore, in the first place,
examine what consideration, in point of law, is neces-
sary, to give legal operation and support to a Note ; and,
in the next place, between what parties, and under what
circumstances, the consideration is inquirable into, as a
defence or bar to an action brought thereon.
§ 183. And, in the first place, as to what considera-
tion is necessary to maintain a Promissory Note. At
the Common Law, (and the same rule pervades the Ro-
man Law and the foreign Commercial Law, 4 ) a valuable
consideration is, in general, necessary to support every
i Chitty on Bills, ch. 3, § 1, p. 78-85, (8th edit. 1833) ; Id. p. 90-92;
Collins v. Martin, 1 Bos. and Pull. R. 651 ; Holliday v. Atkinson, 5 Barn,
& Cressw. 501 ; Bristol v. Warner, 19 Conn. R. 7.
2 Story on Bills, § 193, 194 ; Jennison v. Stafford, 1 Cushing, R. 168.
3 Ibid.
4 Pothier on Oblig. n. 4, p. 42.
216 PROMISSORY NOTES. [CH. V.
contract, otherwise it is treated as a nude and void pact,
Nudum pactum ; and the maxim, in such a case, is, Ex
nudo pacto 11011 oritur actio. 1 This rule is equally appli-
cable, under the limitations before suggested, to Promis-'
sory Notes, as it is to other contracts. 2 And there must
not only be a consideration, but, in the just sense of the
law, it must be legal, as well as adequate. 3
§ 184. What consideration is deemed valuable and
sufficient in point of law, or not, to support contracts
generally, or Promissory Notes in particular, may be
stated in a few words. First; a consideration, founded
in mere love, or affection, or gratitude, (which, in a tech-
nical sense, is called a good consideration, in contradis-
tinction to a valuable consideration,) is not sufficient to
maintain an action on a Note. Thus, a Note drawn by
the maker, as a gift to a son or other relative, or to a
friend, is not sufficient to sustain the Note between the
original parties. 4
§ 185. A mere moral obligation, although coupled
with an express promise, is not a sufficient consideration
to support a Note between the same parties. It has?
indeed, in some cases been broadly laid clown, that where
1 Chi.tty on Bills, cb. 3, $ 1, p. 79 -85, (8th edit. 1833) ; Bayley on Bills,
eh. 12, p. 494-504, (5th edit. 1830) ; Sharington v. Strutton, Plowden, R.
308 ; Dig. Lib. 2, tit. 14, 1. 7, § 4 ; Pothier, Pand. Lib. 2, tit. 14, n. 33 ;
Pothier on Oblig. n„ 4, p. 43 ; Pothier, by Evans, Vol. 2, n. 2, p. 19-25.
2 Chitty on Bills, ch. 3, § 1, p. 78-85, (8th edit. 1833) ; Bayley on
Bills, ch. 12, p. 494, 495, (5th edit. 1830.)
3 Chitty on Bills, ch. 3, § 1, p. 78-80, (8th edit. 1833); Bayley on
Bills, ch. 12, p. 494, 495, (5th edit. 1830.)
4 Chitty on Bills, ch. 3, p. 85, 86, and notes, (8th edit. 1833) ; Bayley
on Bills, ch. 12, p. 502-504, (5ih edit. 1830) ; Fink v. Cox, 18 John. R.
145 ; Holliday v. Atkinson, 5 Barn. & Cressw. 501 ; Blogg v. Pinkers, 1
Ryan & Mood. R. 125= But see, contra, Bowers v. Hurd, 10 Mass. R.
427. It seems difficult to support this last case upon principle or authority-
CH. V.] CONSIDERATION SUFFICIENCY OF. 217
a man is under a moral obligation, which no court of law
or equity can enforce, and he promises the honesty and
rectitude of the thing, is a consideration. 1 But this doc-
trine must be received with many qualifications ; and is
now restricted to much narrower limits. 2 The true doc-
trine, as now established, seems to be, that a considera-
tion, which the law esteems valuable, must in all cases ex-
ist, in order to furnish a just foundation for an action.
Where there is a precedent duty, which would create a
sufficient legal or equitable right, if there had been an
express promise at the time, or where there is a prece-
dent consideration, which is capable of being enforced,
and is not extinguished, unless at the option of the
party, founded upon some bar or defence, which the law
justifies, but does not require him to assert, there an
express promise will create or revive a just cause of ac-
tion. 3 Thus, for example, if A. has paid a debt due by
B., without the request of B., the law will not raise a
promise by B., by implication, to repay the money to
A.; but, if B., in consideration thereof, makes an ex-
press promise, it is valid and obligatory. 4 So, if a debt
is discharged by mere operation of law without pay-
ment, as by the statute of limitations, or by a discharge
in bankruptcy, an express promise by the party to pay
1 Hawkes v. Saunders, Cowp. R. 289 ; Lee v. Muggeridge, 5 Taunt.
R. 36 ; Seago v. Deane, 4 Bing. R. 459.
2 Littlefield v. Shee, 2 Barn. & Adolp. 811; Eastwood v. Kenyon, 11
Adolp. & Ellis, 438, 450.
3 See Wennall v. Adney, 3 Bos. & Pull. 247, and the note of the
learned Reporters, p. 249, note (a) ; Eastwood v. Kenyon, 11 Adolp. &
Ellis, 438 ; Bayley on Bills, ch. 12, p. 504, (5th edit. 1830) ; Chitty on
Bills, ch. 3, p. 84, (8th edit. 1833.)
4 See Serg. Williams's note (1) to Osborne v. Rogers, 1 Saund. R. 264 ;
Hayes v. Warren, 2 Str. R. 933 ; Stokes v. Lewis, 1 Term R.'20.
PROM. NOTES. 19
218 TROMISSORY NOTES. [CH. V.
it will revive the obligation. 1 So, if a contract is void-
able, but founded in a consideration otherwise valuable
or sufficient, an express promise to pay it will support
and confirm its obligation • but not, if it be originally
void. 2 Thus, a promise, after age, by a person, to pay a
debt not for necessaries, contracted during his infancy,
will be binding ; and a negotiable security given there-
for will acquire validity by such new promise or con-
firmation of it. 3 But a promise by a woman, who is
sole, to pay a debt, which she had previously contracted,
while she was married and under coverture, would not
be valid ; because such a contract, on her part, is ah in-
itio void, and not merely voidable. 4 [So, also a note
given by a person to an officer of a benevolent society,
for his initiation fee as a member, and for his quarterly
dues, will not have a sufficient consideration. 5 ]
§ 186. Secondly. What, then, is a valuable consi-
deration in the sense of the law ? It may, in general
terms, be said to consist either in some right, interest,
profit, or benefit, accruing to the party, who makes the
contract, or some forbearance, detriment, loss, responsi-
bility, or act, or labor, or service, on the other side. 6
And, if either of these exists, it will furnish a sufficient
valuable consideration to sustain the making, or indors-
1 Eastwood v. Kenyon, 11 Adolp. & Ellis, 438 ; Hawkes v. Saunders,
Cowp. R. 289, 290.
2 Littlefield v. Shee, 2 Barn. & Adolp. 811 ; Eastwood v. Kenyon, 11
Adolp. & Ellis, 438.
3 Hawkes v. Saunders, Cowp. R. 289, 290; Eastwood v. Kenyon, 11
Adolph. & Ellis, 238.
4 Eastwood v. Kenyon, 11 Adolp. & Ellis, 238 ; Loyd v. Lee, 1 Str.
R. 94. But see post, § 274, 275.
5 Nash v. Russell, 5 Barbour, Sup. Ct. R. 556.
6 Com. Dig. Action on the Case, Assumpsit, B. 1-15.
CH. V.] CONSIDERATION SUFFICIENCY OF. 219
ing, a Promissory Note in favor of the payee, or other
holder. Thus, for example, not only money paid, or
advances made, or credit given, or the discharge of a
present debt, or work and labor done, will constitute a
sufficient consideration for a Note ; but, also, the receiv-
ing a Note as security for a debt, or forbearance to sue
a present claim or debt, or an exchange of securities, or
becoming a surety, or doing any other act at the re-
quest, or for the benefit, of the maker or indorser, will
constitute a sufficient consideration for a Note. 1 The
common case of bankers, receiving Bills of their cus-
tomers for collection, affords an apt illustration of this
doctrine ; for they are deemed holders, for value, not
only to the amount of advances already made by them,
either specifically or upon account, but also for future
responsibilities incurred upon the faith of them. 2 So,
also, any act, done at the request of the party, making
the contract, for the benefit of a third person, such as
paying the debt of a third person, or forbearing to sue
for a debt due by such person, or discharging such debt,
or guaranteeing such debt, or becoming liable for the acts
or defaults of a third person, will, in like manner, be a
sufficient consideration to support the contract. 3 [So,
1 Com. Dig. Action of Assumpsit, B. 1, 2, 4, 5, 9, 10 ; Bayley on Bills,
ch. 12, p. 505, (5th edit. 1830) ; Chitty on Bills, ch. 3, p. 84, 85, (8th edit.
1833) ; Bosanquet v. Dudman, 1 Stark. R. 1 ; Heywood v. Watson, 4
Bing. R. 496 ; Kent v. Lowen, 1 Camp. R. 179, note ; Rolfe v. Caslon, 2
H. Black. 571 ; Hornblower v. Proud, 2 Barn. & Aid. 327 ; Post, § 194.
2 Bosanquet v. Dudman, 1 Stark. R. 1 ; Ex parte Bloxham, 8 Ves. R.
531 ; Heywood v. Watson, 4 Bing. R. 496 ; Bramah v. Boberts, 1 Bing.
N. Cas. 469 ; Percival v. Frampton, 2 Cromp. Mees. & Rose. 180 ; Swift
v. Tyson, 16 Peters, R. 1, 21, 22; Bank of the Metroplis v. New Eng-
land Bank, 1 Howard, Sup. Ct. R. 239 ; S. C. 17 Peters, R. 174 ; Bar-
nett v. Brandao, 6 Mann. & Gr. 630, 670 ; Post, § 195.
3 Com. Dig. Action of Assumpsit, B. 3, 11, 15 ; Bayley on Bills, ch. 12,
220 PROMISSORY NOTES. [CH. V.
under the charter of a mutual insurance company, the
mutual agreement and association of the parties respect-
ively giving notes for premiums in advance, have been
held a sufficient consideration for the Notes. 1 ] A pre-
existing debt is equally as available, as a consideration,
as is a present advance, or value, given for the Note. 3
Even the settlement of a doubtful claim, preferred
against the party, will be a sufficient and valid consi-
deration, without regard to the legal validity of the
claim, if it be fairly made. 3
§ 187. The objection to a Note may be, that there is
a total want of consideration to support it ; or that there
is only a partial want of consideration. 4 In the first
case, it goes to the entire validity of the Note, and
avoids it. In the latter case, it affects the Note with
nullity only pro tanto. 5 The same rule applies to cases,
p. 504, (5th edit. 1830) ; Chitty on Bills, ch. 3, p. 80, 84, (8th edit. 1833) ;
Poplewell v. Wilson, 1 Str. R. 264"; Ridout v. Bristow, 1 Tyrw. R. 84 ;
S. C. 1 Cromp. & Jerv. 231. A promise by an executor or administrator,
to pay a debt of the intestate or testator, is not valid, unless he has assets.
Ten Eyck v. Vanderpoel, 8 John. R. 120 ; Schoonmaker v. Roosa, 17
John. R. 301 ; Bank of Troy v. Topping, 9 Wend. R. 273. But see Ri-
dout v. Bristow, 1 Cromp. & Jerv. 231 ; S. C. 1 Tyrw. 84.
1 Browner v. Appleby, 1 Sandford, Sup. Ct. N. Y. R. 158 ; Hone v.
Allen, Ibid. 171 ; Hone v. Folger, Ibid. 177.
2 Townsley v. Sumrall, 1 Peters, R. 170 ; Swift v. Tyson, 16 Peters,
R. 11.
3 Russell v. Cook, 3 Hill, R. 504.
4 See Bayley on Bills, ch. 12, p. 494-504, (edit. 1830) ; Id. (Amer.
edit. 1836, by Sewall & Phillips,) p. 531-556, where many of the
American cases are collected ; Swift v. Tyson, 16 Peters, R. 1 ; Post,
§ 194.
5 Chitty on Bills, ch. 3, § 1, p. 79-83, (8th edit.) ; Bayley on Bills,
ch. 12, p. 494, 495, (5th edit. 1830) ; Barber v. Backhouse, Peake, R. 61 ;
Darnell v. Williams, 2 Stark. R. 166 ; Sparrow v. Chisman, 9 Barn. &
Cressw. 241 ; Lewis v. Cosgrave, 2 Taunt. R. 2 ; Wintle v. Crowthier,
1 Tyrw. R. 213, 216; Lee Gascoigne v. Smith, McClell. & Younge,
OH. V.] CONSIDERATION SUFFICIENCY OF.' 221
where there was originally no want of consideration;
but there has been a subsequent failure thereof, either
in whole, or in part. For a subsequent failure of the
consideration is equally fatal with an original want of
consideration, not, indeed, in all cases, but in many
cases ; 1 at least, where it is a matter capable of definite
computation, and not mere unliquidated damages. 2 So,
if a Note is given as an indemnity, it is a sufficient
answer to it, that the party has not been damnified at
all, or that the original claim has been extinguished. 3
So, if a Note is originally a gift, in whole or in part ; 4
or if it is founded upon a sale of goods, to which the
title afterwards fails, in whole or in part ; it will, pro
tanto, be void as between those parties. 5
§ 188. In the next place, a Promissory Note will be
338 ; Stephens v. Wilkinson, 2 Barn. & Adolp. 320 ; Allaire v. Harts-
horne, Zabriskie, N. Jersey R. 665.
i Chitty on Bills, ch. 3, $ 1, p. 85-88, (8th edit. 1833) ; Bayley on
Bills, ch. 12, p. 494-496, (5th edit. 1830) ; Jackson v. Warwick, 7 Term
R. 121 ; Mann v. Lent, 10 Barn. & Cressw. 877 ; Day v. Nix, 9 Moore,
R. 159.
2 Day v. Nix, 9 Moore, R. 159 ; Chitty on Bills, ch. 3, p. 88, 89, and
note (b), (8th edit. 1833) ; Ledger v. Ewer, Peake, R. 216; Bayley on
Bills, ch. 12, p. 495-499, (5th edit. 1830) ; Solomon v. Turner, 1 Stark.
R. 51 ; Morgan v. Richardson, 1 Camp. R. 40, note ; Tye v. Gwynne,
2 Camp. R. 346 ; Moggridge v. Jones, 14 East, R. 486 ; Grant v. Welch-
man, 16 East, R. 207; Obbard v. Betham, 1 Mood. & Malk. 483. See
the masterly judgment of Mr. Baron Parke, in Mondel v. Steel, 8 Mees.
& Wels. 858 ; Bracey v. Carter, 12 Adolp. & Ellis, 373. A total failure
of consideration will sometimes, but not always, be a good bar or defence
to an action of covenant. Cooch v. Goodman, 2 Adolp. & Ellis, New R.
580, 599 ; Com. Dig. Fait, C. 2.
3 Chitty on Bills, ch. 3, p. 84, 85, (8th edit. 1833.)
4 Ibid. ; Nash v. Brown, cited Chitty, on Bills, p. 85, note (c) ; Holli-
day v. Atkinson, 5 Barn. & Cressw. 50 ; Blogg v. Pinkers, 1 Ryan &
Mood. R. 125 ; Bayley on Bills, ch. 12, p. 502, 503, (5th edit.) See
Tate v. Hilbert, 2 Ves. jr. Ill ; S. C. 4 Bro. Ch. R. 486.
5 Ibid.
19*
222 PROMISSORY NOTES. [CH. V.
void, where it is founded upon fraud, or duress, or impo-
sition, or circumvention, or taking an undue advantage
of the party; as where he is intoxicated. 1 And this
doctrine is so completely coincident with the dictates of
natural justice, that it probably has a full recognition in
the jurisprudence of every civilized country. Certain
it is, that it has a most perfect sanction in the Roman
Law, and in the jurisprudence of all the states of conti-
nental Europe. 2
§ 189. In the next place, a Promissory Note will be
void, if the consideration is illegal. 3 It may be illegal,
(as has been already suggested,) either because it is
against the general principles and doctrines of the
Common Law ; or, because it is specially prohibited or
interdicted by statute. The former illegality exists,
wherever the consideration is founded upon a transac-
tion against sound morals, public policy, public rights,
or public interests ; as, for example, contracts of any
sort made with an alien enemy ; contracts in general
restraint of trade or marriage ; contracts for the perpe-
tration, or concealment, or compounding of some crime ;
contracts offensive to Christian morals and virtue, as for
i Chitty on Bills, ch. 2, § 1, p. 21, (8th edit. 1833) ; Id. ch. 3, p. 83, 84 ;
Duncan v. Scott, 1 Camp. R. 100 ; Rees v. Marquis of Headfort, 2 Camp.
R. 574 ; Grew v. Bevan, 3 Stark. R. 134 ; Gladstone v. Hadwen, 1 M.
& Selw. 517 ; Noble v. Adams, 7 Taunt. R. 59 ; Bayley on Bills, ch. 5,
§ 2, p. 143, (5th edit. 1830) ; Id. ch. 2, § 6, p. 56, 57 ; Lord Gallway v.
Mathew, 10 East, R. 264 ; ShirrerTv. Wilks, 1 East, R. 48; Fleming ».
Simpson, 1 Camp. R. 40, note; Pitt v. Smith, 3 Camp. R. 33 ; Gregory
v. Fraser, 3 Camp. R. 454.
2 Pothier on Oblig. n. 28-33, and Pothier, by Evans, Vol. 2, No. 2,
p. 19 - 25 ; Id. No. 3, p. 28, 29 ; Dig. Lib. 4, tit. 14, 1. 7, § 7 ; Id. 1. 10.
3 Bayley on Bills, ch. 12, p. 504-524, ^5th edit. 1830) ; Story on Con-
flict of Laws, § 243-260; Pothier on Oblig. n. 43-45; Pothier, by
Evans, Vol. 2, No. 2, p. 19; Bell v. Quin, 2 Sandford, Superior Ct. R.
146.
OH. V.] CONSIDERATION SUFFICIENCY OF. 223
illicit cohabitation; contracts for the purchase of a
public office ; contracts for indemnity against an act of
known illegality ; contracts in fraud of the rights and
interests of third persons ; contracts justly reprehensi-
ble for their injurious effects upon the feelings of third
persons ; and contracts by way of wager, upon occasions
not allowed by the general policy of law, if, indeed, in
a just sense, mere wagers ought ever to be held legal. 1
The latter illegality (that which is created by statute)
exists, not only where there is an express prohibition or
interdiction of the act or contract ; but also where it is
implied from the nature and objects of the statute. 2
The Roman Law has inculcated the same general prin-
ciples in an emphatic manner. Quod turpi ex causa
promissum est, non valet? And it is followed out and
supported in the French Law. 4
§ 190. In the next place, between what parties, and
under what circumstances, is the consideration of a
Promissory Note inquirable into, for the purpose of a
defence or a bar to an action brought thereon ? The
general rule is, that the total or partial w T ant or failure
1 Chitty on Bills, ch. 3, p. 93-99, (8th edit. 1833) ; Bayley on Bills,
ch. 12, p. 508-511, (5th edit. 1830) ; Story on Conflict of Laws, § 243-
259 6.
2 Chitty on Bills, ch. 3, p. 99-118, (8th edit. 1833) ; Bayley on Bills,
ch. 12, p. 504-514, (5th edit. 1830). — It has seemed to me unnecessary
to go at large, in this place, into the doctrine of the illegality of considera-
tion, as the elementary works above cited contain a large collection of the
cases, all of which, however, turn upon one or more of the principles,
which are stated in the text. Story on Conflict of Laws, § 243-260 ;
1 Story on Eq. Jurisp. § 296, 298-300 ; 1 Fonbl. Eq. Jurisp. B. 1, ch. 4,
§ 5-7, and notes ; 1 Harrison's Dig. tit. Contract, § 3-8. Mr. Evans,
in his translation of Pothier on Oblig. Vol. 2, No. J, p. 1 - 19, has ex-
amined this whole subject with much ability.
3 Instit. Lib. 3, tit. 20, § 24.
4 Pothier on Oblig. n. 43 - 46.
224 PROMISSORY NOTES. [CH. V.
of consideration, or the illegality of consideration, may
be insisted upon as a defence or a bar between any of
the immediate or original parties to the contract. It
may be insisted by the maker against the payee, and
by the payee against his indorsee. 1 Thus, for example,
it is a good defence or bar to an action between these
parties, that the Note is a mere accommodation Bill,
that the maker is a mere accommodation maker, and the
payee an accommodation indorser. 2 The same rule will
apply to any derivative title under them by any person,
who acts merely as their agent, or has given no value
for the Note. 3 It will also apply to all cases, where the
party takes the Note, even for value, after it has been
dishonored, or is overdue ; for then he takes it subject
to all the equities, which properly attach thereto be-
tween the antecedent parties. 4 So, if he has notice, at
1 Bayley on Bills, ch. 12, p. 494-523, (5th edit. 1830); Chitty on
Bills, ch. 3, p. 78 -83, (8th edit. 1833) ; 3 Kent, Comm. Lect.44, p. 80-
82, (4th edit.) ; Jackson v. Warwick, 7 Term R. 121 ; Barber v. Back-
house, Peake, R. 61 ; Ledger v. Ewer, Peake, R. 216 ; Darnell v. Wil-
liams, 2 Stark. R. 166 ; Jones v. Hibbert, 2 Stark. R. 304 ; Pike v. Street,
1 Mood. & Malk. 226 ; Lewis v. Cosgrave, 2 Taunt. R. 2 ; Sumner v.
Brady, 1 H. Black. R. 647; Knight v Hunt, 5 Bing. R. 432 ; Walker v.
Perkins, 3 Burr. R. 1568 ; Clark v. Ricker, 14 New Hampsh. R. 44.
2 Bayley on Bills, ch. 10, p. 420, 421, (5th edit. 1830) ; Id. ch. 12, p.
495 ; Chitty on Bills, ch. 3, p. 81, (8th edit. 1833) ; Darnell v. Williams,
2 Stark. R. 166 ; Wiffen v. Roberts, 1 Esp. R. 261 ; Jones v. Hibbert,
2 Stark. R. 304 ; Sparrow v. Chisman, 9 Barn. & Cressw. 241 ; De Lau-
ney v. Mitchill, 1 Stark. R. 439 ; Allaine v. Hartshorne, Zabriskie, R.
665 ; Dowe v. Schutt, 2 Denio, R. 621.
3 Ibid.; Denniston v. Bacon, 10 John. R. 198; Grew v. Burditt, 9
Pick. R. 265.
4 Chitty on Bills, ch. 3, p. 92, 93 ; Id. 113, J16 ; Id. ch. 6, p. 244, 245,
(8th edit. 1833); Bayley on Bills, ch. 5, § 3, p. 157, 158 ; Id. ch. 12,
p. 512, (5th edit. 1830) ; Id. (Amer. edit. 1836, by Sewall & Phillips),
p. 544-548; Taylor v. Mather, 3 Term R. 83, note ; Brown v. Davies,
3 Term R. 80 ; Cruger v. Armstrong, 3 John. Cas. 5 ; Conroy v. Warren,
3 John. Cas. 259 ; Ayer v. Hutchins, 4 Mass. R. 370 ; Thompson v. Hale,
CH. V.] CONSIDERATION SUFFICIENCY OF. 225
the time, when he purchases it, that the Note is void
in the hands of the party, from whom he purchases it,
either from fraud, or want, or failure, or illegality of
consideration, he will take it subject to the same equi-
ties as that party. 1 There is one peculiarity in cases of
illegality of consideration, in which it is distinguishable
from the want or failure of consideration. In the latter,
if there be a partial want or failure of consideration, it
avoids the Note only pro tanto ; but, where the con-
sideration is illegal in part, there it avoids the Note in
toto? The reason of this distinction seems to be founded,
partly, at least, upon the ground of public policy, and
partly upon the technical notion, that the security is
6 Pick. R. 259 ; Tucker v. Smith, 4 Greenl. R. 415 ; Brown v. Turner,
7 Term R. 630 ; Boggs v. Lancaster Bank, 7 Watts & Serg. 331. The
equities, which are here intended, are not all the equities, which may exist
between the parties, arising from other transactions ; but all the equities,
attaching to the particular Bill in the hands of the holder. Ante, § 178 ;
Story on Bills, § 220 ; Burrough v. Moss, 10 Barn. & Cressw. 558 ;
Whitehead v. Walker, 10 Mees. & Wels. 696. But see the cases col-
lected in Bayley on Bills, ch. 12, (Amer. edit. 1836, by Sewall & Phillips),
p. 546-552; Baxter v. Little, 6 Mete. R. 1. A Bill, which has been
accepted, payable on demand with interest, will not be treated as overdue,
unless it has been presented for payment ; for it may have been the inten-
tion of the parties, that it should be negotiated, and remain outstanding for
some time. Barough v. White, 4 Barn. & Cressw. 325. But see Ayer
v. Hutchins, 4 Mass. R. 370 ; Thompson v. Hale, 6 Pick. R. 259; Bayley
on Bills, (Amer. edit. 1836, by Sewall & Phillips), ch. 12, p. 546-552 ;
Furniss v. Gilchrist, 1 Sandford, Superior Ct. N. Y. R. 53.
1 Ibid. ; Bayley on Bills, ch. 12, p. 512, (5th edit. 1830); Amory v.
Meryweather, 2 Barn. & Cressw. 573 ; Evans v. Kymer, 1 Barn. &
Adolp. 528 ; Kasson v. Smith, 8 Wend. R. 437; Skilding v. Warren,
15 John. R. 270; Harrisburg Bank v. Meyer, 6 Serg. & Rawle, 537 ;
Chitty on Bills, ch. 3, p. 92, 93, (8th edit. 1833) ; Id. p. 115, 116 ; Steers
v. Lashley, 6 Term R. 61.
2 Robinson v. Bland, 2 Burr. R. 1077; Bayley on Bills, ch. 12, p. 514,
(5th edit. 1830) ; Scott v. Gillmore, 3 Taunt. R. 226; Clark v. Ricker,
14 N. Hampsh. 44. But see Chitty on Bills, ch. 3, p. 114, and note, (8th
edit. 1833).
226 PROMISSORY NOTES. [CH. V.
entire, and cannot be apportioned. Probably a similar
ground would be assumed in cases of fraud, at least
where the ingredients were grossly offensive, or where
the transactions were so connected, as to be incapable
of a clear and definite separation. There is much force
in the suggestion, which hag sometimes been made, that,
where the parties have woven a web of fraud, it is no
part of the duty of courts of justice to unravel the
threads, so as to separate the sound from the unsound.
§ 191. On the other hand, the partial or total failure
of consideration, or even fraud between the antecedent
parties, will be no defence or bar to the title of a bond
fide holder of a Note, for a valuable consideration, at or
before it becomes due, without notice of any infirmity
therein. 1 The same rule will apply, although the pre-
sent holder has such notice, if he yet derives a title to
the Note from a prior bond fide holder for value. 2 This
doctrine, in both its parts, is indispensable to the se-
curity and circulation of negotiable instruments ; and
it is founded in the most comprehensive and liberal
principles of public policy. No third person could
otherwise safely purchase any negotiable instrument;
for his title might be completely overturned by some
latent defect of this sort, of which he could not have
any adequate means of knowledge, or institute any
inquiries, which might not end in doubtful results, or
i Chitty on Bills, ch. 3, p. 78, 79, (8th edit. 1833); Bayley on Bills,
ch. 12, p. 499, 500, (5th edit. 1830) ; Collins v. Martin, 1 Bos. & Pull.
651 ; Bramah v- Roberts, 1 Bing. N. Cas. 469; Story on Bills, § 14, 1S9,
191, 193, 417; Robinson v. Reynolds, 2 Adolp. & Ellis, New R. 196,
211.
3 Ibid. ; Haly v. Lane, 2 Atk. 182 ; Lickbarrow v. Mason, 2 Term R.
71; Chalmers v. Lanion, 1 Camp. R. 383; Robinson v. Reynolds, 2
Adolp. & Ellis, New R. 196, 211.
CH. V.] CONSIDERATION SUFFICIENCY OF. 227
embarrassing difficulties. Hence it is, that a bond fide
holder for value, without notice, is entitled to recover
upon any negotiable instrument, which he has received
before it has become due, notwithstanding any defect or
infirmity in the title of the person, from whom he de-
rived it ; as, for example, even though such person may
have acquired it by fraud, or even by theft, or by rob-
bery. 1 [But even such bona fide holder can recover
only the amount he has actually advanced.] 2
§ 192. The same doctrine will generally apply to all
cases of a bond fide holder for value, without notice be-
fore it becomes due, where the original Note, or the
indorsement thereof, is founded on an illegal considera-
tion ; and this, upon the same general ground of public
policy, without any distinction between a case of ille-
gality, founded in moral crime or turpitude, which is
malum in se, and a case founded in the positive prohibi-
tion of a statute, which is malum prohibitum; for, in
each case, the innocent holder is, or may be, otherwise
exposed to the most ruinous consequences, and the cir-
culation of negotiable instruments would be materially
obstructed, if not totally stopped. 3 The only exception
1 3 Kent, Comm. Lect. 44, p. 79, 80, (5th edit.) ; Bayley on Bills, ch.
12, p. 524-528, (5th edit. 1830) ; Miller v. Race, 1 Burr. R. 452; Grant
v. Vaughan, 3 Burr. R. 1516; Peacock v. Rhodes, 2 Doug. R. 633;
Lowndes v. Anderson, 13 East, R. 130; Solomons v. Bank of England,
13 East, R. 135, note (a) ; Thurston v, McKown, 6 Mass. R. 428 ;
Wheeler v. Guild, 20 Pick. R. 545.
2 Allaire v. Hartshorne, Zabriskie, N. Jersey R. 665 ; Hollman v.
Hobson, 8 Humphreys's Tenn. R. 127 ; WirTen v. Roberts, 1 Esp. R.
261; Jones v. Hibbert, 2 Stark. R. 204; Edwards v. Jones, Carr. &
Payne, R. 633; S. C. 2 Mees. & Webby, 414; Robins v. -Maidstone,
4 Adolph. & Ellis, N. S. 811 ; Williams v. Smith, 2 Hill, N. Y. 301 ;
Valette v. Mason, 1 Smith, Indiana R. 84.
3 Chitty on Bills, ch. 3, p. 92, 93, (8th edit. 1833); Id. p. 115, 116,
Lowes v. Mazzaredo, 1 Stark. R. 385 ; Wyat v. Bulmer, 2 Esp. R. 538 ;
228 PROMISSORY NOTES. [CH. V.
is, where the statute, creating the prohibition, has, at
the same time, either expressly, or by necessary impli-
cation, made the instrument absolutely void in the
hands of every holder, whether he has such notice, or
not. There are few cases, in which any statute has
created a positive nullity of such instruments, either in
England or America. The most important seem to be
the statutes against gaming, and the statutes against
usury. 1 And the policy of these enactments has been
3 Kent, Comm. Lect. 44, p. 79, 80, and note, (4th edit.) ; Bayley on
Bills, ch. 12, p. 512-516 ; Gould v. Armstrong, 2 Hall, R. 266 ; Smed-
berg v. Simpson, 2 Sandford, Superior Ct. N. Y. R. 85.
1 Bowyer v. Bampton, 2 Str. R. 1 155 ; Peacock v. Rhodes, 2 Doug. R.
636 ; Lowe v. Walker, 2 Doug. R. 736 ; Ackland v. Pearce, 2 Camp.
R. 599 ; 3 Kent, Comm. Lect. 44, p. 79, 80, (4th edit.) ; Bayley on Bills,
ch. 12, p. 512-519, (5th edit. 1830) ; Preston v. Jackson, 2 Stark. R.
237; Shillito v. Theed, 7 Bing. R. 405 ; Henderson v. Benson, 8 Price,
R. 281 ; Chitty on Bills, ch. 3, p. 115, 116, (8th edit. 1833). — In Bayley
on Bills, ch. 12, p. 517, (5th edit. 1830), it is said; "The objection of
illegality of consideration is, in some cases, confined to those persons, who
were parties or privy to such illegality, and those, to whom they have
passed the Bill or Note without value ; in other cases, it is extended even
to holders bona fide, and for value. The latter cases are, where the con-
sideration is, either wholly or in part, signing a bankrupt's certificate ;
money lost by gaming as aforesaid, or by betting on the sides of persons
so gaming; money knowingly lent for such gaming or betting; money
lent, at the time and place of such play, to any person either then gaming
or betting, or who shall, during the play, play or bet ; money lent on an
usurious contract ; the ransom, or money knowingly lent to enable the
owner to obtain the ransom, of the ship or vessel of any British subject,
or any merchandise or goods on board the same." On the other hand,
Mr. Chancellor Kent, in his learned Commentaries, restricts the cases to
those under the statutes against gaming and usury, and says, that there
are no others, in which the instrument is void in the hands of an innocent
indorsee for value. 3 Kent, Comm. Lect. 44, p. 79, 80, (5th edit.) The
former probably exhibits the present state of the English Law most accu-
rately. See Chitty on Bills, ch. 3, p. 115, 116, (8th edit. 1833.) And it
seems, that, wherever the defence of usury is set up, since the Statute of
58 Geo. 3, ch. 93, the plaintiff is compellable to prove, that he gave value
for the Bill, otherwise he is not deemed to be within the protection of the
Statute. Wyatt v. Campbell, 1 Mood. & Malk. 80 ; Bayley on Bills,
ch. 12. p. 521, (5th edit. 1830.)
OH. V.] CONSIDERATION — SUFFICIENCY OF. 229
brought into so much doubt in our day. that in England
the rule, as to usury, and gaming, and some other cases,
has been changed by recent statutes; and a total re-
peal, or partial relaxation of it, has found its way into
the legislation of America. 1
§ 193. In respect to cases of illegality, also, this
farther distinction may become important. The ille-
gality may not only occur between the original parties
to the Note; but, where the Note was originally given
for a legal and valid consideration, there may be ille-
gality in the subsequent indorsement or other transfer
of it. In the latter case, the illegality will displace
the title of the parties thereto, but not the title of any
bona fide holder for value under them, who has no notice
of the illegality, and is not bound to deduce his title to
the Note through such parties, or to state or prove their
signatures. 2 As, for example, if the first indorsement
be in blank, and the second indorsement for an illegal
consideration, a subsequent bond fide holder may claim
title as indorsee of the first indorser, and thereby escape
from the necessity of establishing his title by devolu-
tion through the second indorsement. In such a case
he will be completely protected. 3 But, if the holder is
compellable to make his title through the parties to the
illegal consideration, and the transfer is as between
1 3 Kent, Comm. Lect. 44, p. 79, 80, (5th edit.) ; Stat. 58 Geo. 3, ch.
98 ; Stat. 5 and 6 Will. 4, ch. 41 ; Bayley on Bills, ch. 12, p. 517, 521,
(5th edit. 1830) ; Smedberg v. Simpson, 2 Sandford, Superior Ct. N. Y.
R. 85. See, also, Bayley on Bills, ch. 12, p. 557-580, (Amer. edit. 1836,
by Sewall & Phillips,) where the principal American cases are collected
in the notes.
2 Bayley on Bills, ch. 12, p. 522, 523, (5th edit. 1830) ; Chitty on Bills,
ch. 3, p. 93, 109, 116, (8th edit. 1833.)
3 Ibid. ; Parr v. Eliason, 1 East, R. 92 ; Daniel v. Cartony, 1 Esp. R.
274; Munn v. Commission Company, 15 John. R. 44.
prom, notes. 20
230 PROMISSORY NOTES. [CH. V.
them declared absolutely void by statute, it seems, that
the holder is not entitled to recover upon the Note
against any of the antecedent parties. 1 But, as be-
tween the holder and any subsequent parties, his title
will be good, if it is itself free from any illegality. 2
§ 194. Neither is it any defence or bar, that the Note
was known to the holder to be an accommodation Note
between the other parties, if he takes it for value, bond
fide, before it has become due. 3 The reason is, that the
very object of every accommodation Note is, to enable
the parties thereto, by a sale or other negotiation thereof,
to obtain a free credit and circulation thereof; and
this object would be wholly frustrated, unless the pur-
i Bayley on Bills, ch. 12, p. 522, 523, (5th edit. 1830) ; Chitty on Bills,
ch. 3, p. 93, 109, 110, (8th edit, 1833) ; Lowes v. Mazzaredo, 1 Stark. R.
385 ; Ackland v. Pearce, 2 Camp. R. 599 ; Chapman v. Black, 2 Barn.
& Aid. 590 ; Henderson v. Benson, 8 Price, R. 288 ; Gaither v. Farmers'
& Mechanics' Bank of Georgetown, 1 Peters, R. 43 ; Lloyd v. Scott, 4
Peters, R. 205, 228. — The authorities on this point are in conflict with
each other. Parr v. Eliason, 1 East, R. 92, and Daniel v. Cartony, 1 Esp.
R. 274, affirm the right. But the text is supposed to contain the better
established doctrine. The true distinction seems to be, between cases,
where the indorsement is merely void, and cases, where it is voidable. In
the former case, it is obvious, that no title can be deduced through a void
title ; in the latter, a title may be, at least against all parties except the
person, who is entitled to avoid it. See Knights v. Putnam, 3 Pick. R.
184, (2d edit.), where many of the authorities are collected. See, also,
Nichols v. Fearson, 7 Peters, R. 103 ; Reading v. Weston, 7 Conn. R.
409 ; Bush v. Livingston, 2 Cain. Cas. in Err. 66 ; Braman v. Hess, 13
John. R. 52 ; Munn v. Commission Company, 15 John. R. 44.
2 Chitty on Bills, ch. 3, p. 109, 110, (8th edit. 1833); Bayley on Bills,
ch. 12, p. 523, 524, (5th edit. 1830) ; Edwards v. Dick, 4 Barn. & Aid.
212 ; Bowyer v. Bampton, 2 Str. R. 1155; O'Keefe v. Dunn, 6 Taunt.
R. 315.
3 Ibid. ; Charles v. Marsden, 1 Taunt. R. 224 ; Smith v. Knox, 3 Esp.
R. 46 ; Scott v. Lifford, 1 Camp. R. 246 ; Bank of Ireland v. Beresford,
6 Dow, R. 237 ; Grandin v. Leroy, 2 Paige, R. 509 ; Powell v. Watars,
17 John. R. 176. Martros v. Clark, 2 Sandford, Superior Ct. N. Y. R.
115.
CH. V.] CONSIDERATION SUFFICIENCY OF. 231
chaser, or other holder for value, could hold such a Note
by as firm and valid a title, as if it were founded in a
real business transaction. The mere fact, that an ac-
commodation Note has been indorsed even after it be-
came due, does not of itself, without some other equity
in the maker, defeat the rights of the holder. 1 In short?
the parties to every accommodation Note hold them-
selves out to the public, by their signatures, to be abso-
lutely bound to every person, who shall take the same
for value, to the same extent, as if that value were per-
sonally advanced to them, or on their account, and at
their request. The French Law seems to inculcate an
equally broad and comprehensive doctrine. 2
§ 195. Every person is, in the sense of the rule,
treated as a bona fide holder for value, not only when he
has advanced money or other value for it ; but when
he has received it in payment of a precedent debt, or
when he has a lien on it, or has taken it as collateral
security for a precedent debt, or for future, as well as
for past advances. 3 Thus, a banker, who is accustomed
1 Sturtevant v. Ford, 4 Scott, R. 668.
2 Pothier De Change, n. 118 - 121 ; Code de Comm. art. 117 ; Pardes-
sus, Droit Comm. Tom. 2, art. 378 ; Story on Bills, § 191.
3 Chitty on Bills, ch. 3, p. 85, (8th edit. 1833) ; Heywood v. Watson,
4 Bing. R. 496 ; Bayley on Bills, ch, 12, p. 500, 501, (5th edit. 1830)
Bosanquet v. Dudman, 1 Stark. R. 1 ; Ex parte Bloxham, 8 Ves. 531
Townsley v. Sumrall, 2 Peters, R. 170 ; Swift v. Tyson, 16 Peters, R. 1
Bachellorv. Priest, 12 Pick. R. 399 ; Norton v. Waite, 2 Applet. R. 175
Homes v. Smith, 16 Maine, R. 117 ; Ante, § 186 ; Barnett v. Brandao, 6
Mann. & Gr. 630, 670. Allaire v. Hartshorne, Zabriskie, N. Jersey, R.
665 ; Russell v. Haddick, 3 Gilman, Illinois, R. 233. The earliest cases
in the New York Reports (Warren v. Lynch, 5 John. R. 239 ; Bay v.
Coddington, 5 John. Ch. R. 54) are coincident with the doctrine stated in
the text. Some cases afterwards brought the doctrine into doubt, and in
which it was decided, that taking a Bill in payment of a precedent debt did
not entitle the creditor to be deemed a bona, fide purchaser within the sense
232 PROMISSORY NOTES. [CH. V.
to make advances or acceptances, from time to time,
for his customers, and has in his possession negotiable
of the rule. See Bay v. Coddington, 20 John. R. 637 ; Wardell v. Ho-
well, 9 Wend. 170; Bristol v. Sprague, 8 Wend. R. 423; Rosa v. Bro-
therson, 10 Wend. R. 85 ; Ontario Bank v. Worthington, 12 Wend. R.
593 ; Payne v. Cutler, 13 Wend. 606. The latter cases, however, seem
gradually receding from these decisions, and inclining to uphold the old
rule. See Bank of Salina v. Babcock, 21 Wend. R. 499 ; Bank of San-
dusky v. Scoville, 24 Wend. R. 115; Williams v. Smith, 2 Hill, N. Y.
R. 301. Seneca Co. Bank v. Neass, 5 Denio, R. 330 ; Hunt v. Fish.
4 Barbour, Sup. Ct. R. 324; Mortross v. Clark, 2 Sandford, Sup. Ct. N.
Y. R. 115. The leading authorities were cited and commented on in
Swift v. Tyson, 16 Peters, R. 15-22. On that occasion the Court said:
" There is no doubt, that a bona, fide holder of a negotiable instrument for
a valuable consideration, without any notice of facts which impeach its
validity, as between the antecedent parties, if he takes under an indorse-
ment made before the same becomes due, holds the title unaffected by these
facts, and may recover thereon, although, as between the antecedent par-
ties, the transaction maybe without any legal validity. This is a doctrine
so long and so well established, and so essential to the security of nego-
tiable paper, that it is laid up among the fundamentals of the law, and re-
quires no authority or reasoning to be now brought in its support. As little
doubt is there, that the holder of any negotiable paper, before it is due, is
not bound to prove that he is a bona fide holder for a valuable considera-
tion, without notice ; for the law will presume that, in the absence of all
rebutting proofs, and, therefore, it is incumbent upon the defendant to es-
tablish by way of defence, satisfactory proofs of the contrary, and thus to
overcome the prima, facie title of the plaintiff. In the present case, the
plaintiff is a bona, fide holder without notice for what the law deems a good
and valid consideration, that is, for a preexisting debt; and the only real
question in the cause is, whether under the circumstances of the present
case, such a preexisting debt constitutes a valuable consideration in the
sense of the general rule applicable to negotiable instruments. We say,
under the circumstances of the present case, for, the acceptance having
been made in New York, the argument on behalf of the defendant is, that
the contract is to be treated as a New York contract, and therefore to be
governed by the laws of New York, as expounded by its Courts, as well
upon general principles, as by the express provisions of the thirty-fourth
section of the judiciary act of 1789, ch. 20. And then it is further con-
tended, that, by the law of New York, as thus expounded by its Courts,
a preexisting debt does not constitute, in the sense of the general rule, a
valuable consideration applicable to negotiable instruments. In the first
place, then, let us examine into the decisions of the Courts of New York
CH. V.]
CONSIDERATION SUFFICIENCY OF. 233
securities, belonging to them, for collection, is deemed
to be a holder for value, to the extent of such advances
upon this subject. In the earliest case, Warren v. Lynch, 5 Johns. R.
286, the Supreme Court of New York appear to have held, that a pre-
existing debt was a sufficient consideration to entitle a bona fide holder
without notice to recover the amount of a note indorsed to him, which
might not, as between the original parties, be valid. The same doctrine
was affirmed by Mr. Chancellor Kent in Bay v. Coddington, 5 John. Ch.
R. 54. Upon that occasion he said, that negotiable paper can be assigned
or transferred by an agent or factor, or, by any other person, fraudulently,
so as to bind the true owner as against the holder, provided it be taken in
the usual course of trade, and for a fair and valuable consideration, with-
out notice of the fraud. But he added, that the holders in that case were
not entitled to the benefit of the rule, because it was not negotiated to
them in the usual course of business or trade, nor in payment of any an-
tecedent and existing debt, nor for cash, or property advanced, debt crea-
ted, or responsibility incurred, on the strength and credit of the Notes ;
thus directly affirming, that a preexisting debt was a fair and valuable con-
sideration within the protection of the general rule. And he has since
affirmed the same doctrine, upon a full review of it, in his Commentaries
(3 Kent, Comm. § 44, p. 81, 5th edit.) The decision in the case of Bay
v. Coddington was afterwards affirmed in the Court of Errors, 20 John.
R. 637, and the general reasoning of the Chancellor was fully sustained.
There were, indeed, peculiar circumstances in that case, which the Court
seem tq have considered as entitling it to be treated as an exception to the
general rule, upon the ground, either because the receipt of the Notes
was under suspicious circumstances, the transfer having been made after
the known insolvency of the indorser, or because the holder had received
it as a mere security for contingent responsibilities, with which the holders
had not then become charged. There was, however, a considerable
diversity of opinion among the members of the Court upon that occasion,
several of them holding that the decree ought to be reversed, others affirm-
ing, that a preexisting debt was a valuable consideration, sufficient to pro-
tect the holders, and others again insisting, that a preexistent debt was not
sufficient. From that period, however, for a series of years, it seems to
have been held by the Supreme Court of the State, that a preexisting
debt was not a sufficient consideration to shut out the equities of the ori-
ginal parties in favor of the holders. But no case to that effect has ever
been decided in the Court of Errors. The cases cited at the bar, and es-
pecially Rosa v. Brotherson, 10'Wend. R. 85; The Ontario Bank v.
Worthington, 12 Wend. R. 593 ; and Payne v. Cutler, 13 Wend. R. 605,
and directly in point. But the more recent cases of The Bank of Salina
v. Babcock, 21 Wend. R. 499, and The Bank of Sandusky v. Scoville,
20*
234 PROMISSORY NOTES. [CH. V.
and acceptances. 1 In every such case lie is deemed to
have a lien on such securities for the balances due to
24 Wend. R. 115, have greatly shaken, if they have not entirely over-
thrown those decisions, and seem to have brought back the doctrine to that
promulgated in the earliest cases. So that, to say the least, of it, it ad-
mits of serious doubt, whether any doctrine upon this question can at the
present time be treated as finally established ; and it is certain, that the
Court of Errors have not pronounced any positive opinion upon it." And
again ; " It becom'es necessary for us, therefore, upon the present occa-
sion, to express our own opinion of the true result of the commercial law
upon the question now before us. And we have no hesitation in saying,
that a preexisting debt does constitute a valuable consideration in the sense
of the general rule already stated, as applicable to negotiable instruments.
Assuming it to be true, (which, however, may well admit of some doubt,
from the generality of the language,) that the holder of a negotiable in-
strument is unaffected with the equities between the antecedent parties,
of which he has no notice, only where he receives it, in the usual course
of trade and business, for a valuable consideration, before it becomes due ;
we are prepared to say, that receiving it in payment of, or as security for,
a preexisting debt, is according to the known usual course of trade and
business. And why, upon principle, should not a preexisting debt be
deemed such a valuable consideration ? It is for the benefit and conve-
nience of the commercial world to give as wide an extent as practicable to
the credit and circulation of negotiable paper, that it may pass not only
as security for new purchases and advances, made upon the transfer
thereof, but also in payment of, and as security for, preexisting debts.
The creditor is thereby enabled to realize, or to secure his debt, and thus
may safely give a prolonged credit, or forbear from taking any legal steps
to enforce his rights. The debtor also has the advantage of making his
negotiable securities of equivalent value to cash. But establish the oppo-
site conclnsion, that negotiable paper cannot be applied in payment of,
or as security for, preexisting debts, without letting in all the equities
between the original and antecedent parties, and the value and circulation
of such securities must be essentially diminished, and the debtor driven to
the embarrassment of making a sale thereof, often at a ruinous discount,
to some third person, and then by circuity to apply the proceeds to the
payment of his debts. What, indeed, upon such a doctrine, would be-
come of that large class of cases, where new Notes are given by the same
or by other parties, by way of renewal or security to banks, in lieu of old
securities discounted by them, which have arrived at maturity 1 Probably
i Bosanquet v. Dudman, 1 Stark. R. 1 ; Ex parte Bloxham, 8 Ves. 531,
Spring's Appeal, 10 Burr, R. 235.
CH. V.]
CONSIDERATION -— SUFFICIENCY OF. 235
liim from time to time, as well as for such acceptances^
by the implied consent or agreement of his customers^
resulting from the usage or course of business. 1
more than one half of all bank transactions in our country, as well as
those of other countries, are of this nature. The doctrine would strike a
fatal blow at all discounts of negotiable securities for preexisting debts.
This question has been several times before this Court, and it has been
uniformly held, that it makes no difference whatsoever as to the rights of
the holder, whether the debt for which the negotiable instrument is trans-
ferred to him is a preexisting debt, or is contracted at the time of the
transfer. In each case he equally gives credit to the instrument. The
cases of Coolidge v. Payson, 2 Wheaton, R. 66, 70, 73, and Townsley v.
Sumrall, 2 Peters, R. 170, 182, are directly in point. In England the
same doctrine has been uniformly acted upon. As long ago as the case of
Pillans and Rose v. Mierop and Hopkins, 3 Burr. R. 1664, the very point
was made, and the objection was overruled. That, indeed, was a case of
far more stringency than the one now before us ; for the Bill of Exchange,
there drawn in discharge of a preexisting debt, was held to bind the party
as acceptor, upon a mere promise made by him to accept before the Bill
was actually drawn. Upon that occasion, Lord Mansfield, likening the
case to that of a letter of credit, said, that a letter of credit may be given
for money already advanced, as well as for money to be advanced in fu-
ture ; and the whole Court held the plaintiff entitled to recover. From
that period downward, there is not a single case to be found in England in
which it has ever been held by the Court, that a preexisting debt was not
a valuable consideration, sufficient to protect the holder, within the mean-
ing of the general rule, although incidental dicta have been sometimes
relied on to establish the contrary, such as the dictum of Lord Chief Jus-
tice Abbott in Smith v. De Witts, 6 Dowl. & Ryl. 120, and De la Chau-
mette v. The Bank of England, 9 Barn. & Cressw. 209, where, however,
the decision turned upon very different considerations. Mr. Justice Bay-
ley, in his valuable work on Bills of Exchange and Promissory Notes,,
lays down the rule in the most general terms. ' The want of considera-
tion,' says he, ' in toto or in part, cannot be insisted on, if the plaintiff or
any intermediate party between him and the defendant took the Bill or
Note bona fide, and upon a valid consideration.' Bayley on Bills, p. 499,
500, (5th London edition, 1830.) It is observable, that he here uses the
words ' valid consideration,' obviously intending to make the distinction,
that it is not intended to apply solely to cases, where a present considera-
tion for advances of money on goods or otherwise takes place at the time
i Ibid.
236 PROMISSORY NOTES. [CH. V.
§ 196. In the ordinary course of things, the holder
is presumed to be prima facie, a holder for value ; and
of the transfer and upon the credit thereof. And in this he is fully borne
out by the authorities. They go farther, and establish, that a transfer as
security for past, and even for future responsibilities, will, for this purpose,
be a sufficient, valid, and valuable consideration. Thus, in the case of
Bosanquet v. Dudraan, 1 Stark. R. 1, it was held by Lord Ellenborough,
that if a banker be under acceptances to an amount beyond the cash balance
in his hands, every Bill he holds of that customer's, bona, fide, he is to be
considered as holding for value ; and it makes no difference, though he hold
other collateral securities, more than sufficient to cover the excess of his
acceptances. The same doctrine was affirmed by Lord Eldon, in Ex parte
Bloxham, 8 Ves. 531, as equally applicable to past and to future accept-
ances. The subsequent cases of Heywood v. Watson, 4 Bing. R. 496,
and Bramah v. Roberts, 1 Bing. New Cas. 469, and Percival v. Frampton,
2 Cromp. Mees. & Rose. 180, are to the same effect. They directly esta-
blish, that a bona fide holder, taking a negotiable Note in payment of,
or as secutrity for a preexisting debt, is a holder for a valuable considera-
tion, entitled to protection against all the equities between the antecedent
parties. And these are the latest decisions, which our researches have
enabled us to ascertain to have been made in the English Courts upon
this subject. (See Wilkinson on Law of Shipping, p. 236, edit. 1843.)
In the American Courts, so far as we have been able to trace the decisions,
the same doctrine seems generally, but not universally, to prevail. In
Brush v. Scribner, 11 Conn. R. 388, the Supreme Court of Connecticut,
after an elaborate review of the English and New York adjudications,
held, upon general principles of commercial law, that a preexisting debt
was a valuable consideration, sufficient to convey a valid title to a bona
fide holder against all the antecedent parties to a negotiable Note. There
is no reason to doubt, that the same rule has been adopted, and constantly
adhered to, in Massachusetts ; and certainly, there is no trace to be found
to the contrary. In truth, in the silence of any adjudications upon the
subject, in a case of such frequent and almost daily occurrence in the
commercial States, it may fairly be presumed, that whatever constitutes a
valid and valuable consideration in other cases of contract to support
titles of the most solemn nature, is held a fortiori to be sufficient in
cases of negotiable instruments, as indispensable to the security of holders,
and the facility and safety of their circulation. Be this as it may, we
entertain no doubt, that a bona fide holder, for a preexisting debt, of a
negotiable instrument, is not affected by any equities between the antece-
dent parties, where he has received the same before it became due, with-
out notice of any such equities. We are all, therefore, of opinion, that
the question on this point, propounded by the Circuit Court for our consi-
CH. V.] CONSIDERATION SUFFICIENCY OF. 237
he is not bound to establish, that he has given any
value for the Note, until the other party has esta-
blished the want, or failure, or illegality of the consi-
deration, or that the Note had been lost or stolen, before
it came to the possession of the holder. 1 It may then
be incumbent upon him to show, that he has given
value for it ; for, under such circumstances, he ought
not to be placed in a better situation than the antece-
dent parties, through whom he obtained the Note.
§ 197. What circumstances will amount to actual
or constructive notice of any defect or infirmity in the
title to the Note, so as to let it in as a bar or defence
against a holder for value, has been a matter of much
discussion, and of no small diversity of judicial opi-
nion. It is agreed on all sides, that express notice is
not indispensable ; but it will be sufficient if the cir-
cumstances are of such a strong and pointed character,
deration, ought to be answered in the negative ; and we shall accordingly
direct it so to be certified to the Circuit Court." See, also, 3 Kent, Comm.
Lect. 44, p. 80-82, (5th edit.) ; and Evans v. Smith, 4 Binn. R. 367
Bosanquet v. Dudman, 1 Stark. R. 1 ; Pillans v. Mierop, 3 Burr. R. 1664
Ex parte Bloxham, 8 Ves. 531 ; Heywood v. Watson, 4 Bing. R. 496
Bramah v. Roberts, 1 Bing. New Cas. 469 ; Percival v. Fiampton, 2
Cromp. Mees. & Rose. 180 ; Brush v. Scribner, 11 Connect. R. 388. In
the recent case of Stalker v. McDonald, 6 Hill, N. Y. R. 93, the Court
of Errors of New York seem to have affirmed, that the receiving a Note
as collateral security was not a valuable consideration, entitling the party
to the protection of the rule above stated. See Mickles v. Colvin, 4 Bar-
bour, Sup. Ct. R. 304. Furniss v. Gilchrist, 1 Sandford, Sup. Ct. N. Y.
R. 53 ; Fenly v. Pritchard, 2 Sandford, Sup. Ct. N. Y. C. 151.
i See Bayley on Bills, ch. 12, p. 529-531, (5th edit. 1830) ; Chitty on
Bills, ch. 6, § 3, p. 277-284, (8th edit. 1833) ; Goodman v. Harvey, 4
Adolp. & Ellis, 870; Arbouin v. Anderson, 1 Adolp. & Ellis, New R.
498, 504. In this last case Lord Denman said ; " The owner of a Bill is
entitled to recover upon it, if he came to it honestly ; that fact is implied
prima, facie, by possession, and, to meet the inference so raised, fraud,
felony, or some such matter, must be proved." Story on Bills, § 415,
416 ; Knight v. Pugh, 4 Watts & Serg. R. 445.
238 PROMISSORY NOTES. [CH. V,
as necessarily to cast a shade upon the transaction, and
to put the holder upon inquiry. 1 For a considerable
length of time, the doctrine prevailed, that, if the holder
took the Note under suspicious circumstances, or with-
out due caution and inquiry, although he gave value for
it, yet he was not to be deemed a holder bona fide with-
out notice. 2 But this doctrine has been since overruled
and abandoned, upon the ground of its inconvenience,
and its obstruction to the free circulation and negotia-
tion of Exchange, and transferable paper. 3
i Cone v. Baldwin, 12 Pick. R. 545 ; Hall v. Hale, 8 Conn. R. 336.
2 Gill v. Cubitt, 3 Bain. & Cressw. 466 ; Snow v. Peacock, 3 Bing. R.
406 ; Strange v. Wigney, 6 Bing. R. 677 ; Slater v. West, 1 Dans. &
Lloyd, 15 ; Easley v. Crockford, 10 Bing. R. 243 ; Nicholson v. Patton,
13 Louis. R. 213, 216 ; 3 Kent, Cornm. Lect. 44, p. 81, 82, (4th edit.) ;
Down v. Hailing, 4 Barn. & Cressw. 330 ; Beck with v. Corrall, 3 Bing
R. 444 ; Chitty on Bills, ch. 6, § 3, p. 277-284, (8th edit. 1833) ; Bayley
on Bills, ch. 12, p. 524, 529-531, (5th edit. 1830.)
3 Goodman v. Harvey, 4 Adolp. & Ellis, 870 ; Uther v. Rich, 10 Adolp.
& Ellis, 784 ; Stephens v. Foster, 1 Cromp. Mees. & Rose. 849 ; Ar-
bouin v. Anderson, 1 Adolp. & Ellis, New R. 498, 509 ; Story on Bills,
§ 415, 416. The whole of this chapter, mutatis mutandis, has been ex-
tracted from Story on Bills, § 178- 194, with a few alterations, and with
the addition of some new illustrations, and notes, and authorities. On ex-
amining the chapter, I found little to add to it ; and the subject is so im-
portant, that it could not be omitted in the present volume, which is de=
signed to be a complete and independent treatise of itself.
CH. VI.] PRESENTMENT FOE PAYMENT. 239
CHAPTER VI.
PRESENTMENT OF PROMISSORY NOTES FOR PAYMENT.
§ 198. We come, in the next place, to the considera-
tion of the presentment of Promissory Notes for pay-
ment. We have already seen*, that the contract or en-
gagement of the maker is, to pay the Note upon due
presentment thereof, at its maturity, or when it becomes
due, at the place designated therefor. 1 We have also
seen that the contract or engagement of the indorser is,
that, if upon such due presentment the Note is not paid
by the maker, he will, upon due notice being given to
him of the dishonor, pay the same upon demand. 2
Hence, we see, that while the engagement of the maker
is absolute, that of the indorser is conditional, and any
neglect, or laches, of the holder, in not making due pre-
sentment, will discharge him. 3 It becomes important,
therefore, to consider, first, what is a due presentment
for payment ; and, secondly, what is a due notice of the
dishonor.
§ 199. Let us, then, inquire, in the first place, what
is a due presentment for payment. This, necessarily,
involves various considerations ; (1.) The time, when
the Note arrives at maturity, or becomes due ; (2.) The
place, where it is payable; (3.) The mode of present-
1 Ante, § 113.
2 Ante, § 135 ; Bayley on Bills, ch. 7, § 1, p. 217, 218, (5th edit.)
3 Ibid. ; Magruder v. Bank of Georgetown, 3 Peters, Sup. Ct. R. 90 ;
Whittlesey v. Dean, 2 Aikens, R. 263,
240 PROMISSORY NOTES. [CH. VI.
ment for payment ; (4.) The person, by whom it is to
be presented for payment; (5.) The person, to whom it
is to be presented for payment ; and (6.) What will
constitute a sufficient justification or excuse, or not, for
the want of a due presentment ; and (7.) Notice, and
other proceedings to be had on non-payment of the
Note. Of these we shall treat in succession, in the
order in which they are named.
§ 200. And, in the first place, as to the time of pre-
sentment for payment. It is obvious, that, where a
Note is made payable at a particular time, either with
reference to its date, or to the sight thereof, or other-
wise, payment is demandable only when that time
has expired, and not before. Still, however, although
then demandable, the holder might not choose to de-
mand payment of the maker at that time, but might
omit and delay it at his pleasure, to a future time, unless
there were some known rule of law, which should com-
pel him to strict punctuality in point of time. Now, it
would be highly injurious to the interests of commerce,
and to the security of the drawers and indorsers of ne-
gotiable instruments, if the holder were at liberty to
consult his own mere pleasure as to the time of making
any demand of payment after a Note became due, and
might, after long delays and non-payment, still have
recourse over against the drawer or indorsers. It would
expose the latter to serious, and, perhaps, to irremedia-
ble losses, which an earlier demand might have pre-
vented ; and thus it would have a tendency to discourage
the use and circulation of negotiable paper. 1
§ 201. Hence, the Commercial Law, which, through-
i Story on Bills, §> 324, 325, 344; Chitty on Bills, ch. 9, p. 385, (8th
edit. 1833) ; Id. p. 402.
CH. VI.] PRESENTMENT FOR PAYMENT. 241
out all its departments, inculcates the doctrine of rea-
sonable diligence, and frowns upon and discourages
laches, has introduced a rule of great strictness on this
subject, which, although it may sometimes be found
harsh, and, perhaps, severe in its practical operation, yet,
is, for the general purposes of business, highly useful to
the commercial community, by introducing promptness,
fidelity, and exactness, in the demand of payment. In
respect to the maker, who is held to be the party pri-
marily liable, and the absolute debtor, the holder is at
liberty to allow him whatever indulgence or delay he
may please, short of the period, which will, under the
statute of limitations, or prescription of the particular
state or country, where the suit is brought, operate as
a bar to his claim. But, as to the indorsers, who are
only collaterally and conditionally liable, the rule is
far different. It is, that in order to charge them, a de-
mand of payment should be made of the maker on the
very day, on which, by law, the Note becomes due ; and
unless the demand be so made, it is, generally, a fatal
objection to any right of recovery against the indorsers,
although the maker himself may, and will, still be held
liable on the Note. 1
1 Chitty on Bills, ch. 9, p. 385, 386, 422, 423, (8th edit. 1833) ; Bayley
on Bills, ch. 7, § 1, p. 217, 232, 247, (5th edit. 1830) ; Pothier, De Change,
n. 129 ; Camidge v. Allenby, 6 Barn. & Cressw. 373 ; Bridges v. Berry,
3 Taunt. R. 130; Jackson v. Newton, 8 Watts, R. 401 ; 1 Bell, Comm.
B. 3, ch. 2, § 4, p. 408 - 410, (5th edit.) ; Robinson v. Blen, 2 Appleton,
R. 109. Mr. Chitty has remarked : " It is a general rule of law, that,
where there is a precedent debt or duty, the creditor need not allege or
prove any demand of payment before the action brought, jt being the duty
of the debtor to find out his creditor, and tender him the money ; and, as
it is technically said, the bringing of the action is a sufficient request. It
might not, perhaps, be unreasonable, if the law, in all cases, required pre-
sentment to the acceptor of a Bill, or maker of a Note, before an action be
prom, notes. 21
242 PROMISSORY NOTES. [CH. VL
§ 202. The like rule prevails in the foreign law. —
Whenever a Promissory Note becomes due, there must.
in order to charge the indorsers, be a demand of pay-
ment on that very day, otherwise the indorsers will be
discharged from their obligations, because the reciprocal
obligations of the holder have not been performed. 1
§ 203. Even the death, or known bankruptcy or in-
solvency of the maker, will (as we shall presently more
commenced against him ; because, otherwise, he might, on account of the
negotiable quality of the instrument, and the consequent difficulty to find
out the holder of it on the day of payment, in order to make a tender to
him, be subjected to an action without any default whatever ; and the en-
gagement of the acceptor of a Bill, or maker of a Note, is, to pay the
money, when due, to the holder, who shall, for that purpose, make pre-
sentment. And one reason, why a party cannot recover at law on a lost
Bill or Note, is, that the acceptor of the one, and maker of the other, has
a right to insist on having it delivered up to him, on his paying it. It
seems, however, that in general, the acceptor or maker of a note cannot re-
sist an action, on account of neglect to present the instrument at the precise
time, when due, or of an indulgence to any of the other parties. And, on
the above-mentioned principle, that an action is, of itself, a sufficient de-
mand of payment, it has been decided, that the acceptor or maker of a Note
cannot set up, as a defence, the want of a presentment to him, even before
the commencement of the action, and although the instrument be payable
on demand. But, in such a case, upon an early application, the Court
would stay proceedings without costs." Chitty on Bills, ch. 9, p. 391,
392, (8th edit. 1833) ; Bayley on Bills, ch. 6, § 1, p. 214, 215, (5th edit.
1830) ; Id. ch. 9, p. 402 ; Dingwall r. Dunster, Doug. R. 247 ; Anderson
v. Cleveland, cited in Esp. Digest, N. Prius, 58, (4th edit.) ; and in 13
East, R. 430, note ; Rumball v. Ball, 10 Mod. R. 38 ; Reynolds v. Davies,
1 Bos. & Pull. 625 ; Hansard v. Robinson, 7 Barn. & Cressw. 90 ; Wil-
liams v. Waring, 10 Barn. & Cressw. 2 ; Macintosh v. Haydon, Ryan &
Mood. R. 363 ; 2 Chitty, R. 11 ; 1 Tidd, Pract. 145, (9th edit.) ; Story
on Bills, § 325, 344.
1 Code de Comm. art. 161 ; Locr6, Du Code de Comm. Tom. 1, art.
161, p. 502, 503 ; Pothier, De Change, n. 138-141. See Heinecc. de
Camb. cap. 4, § 24 ; Nouguier, Des Lettres de Change, Tom. 1, Liv. 3,
ch. 9, § 2, p. 378 ; Id. Liv. 4, § 3, 4, p. 493, 494 ; Thomson on Bills, ch.
6, § 1, p. 417, 418, (2d edit.) ; Id. § 2, p. 430 ; Id. ch. 5, § 2, p. 376, 377 ;
Story on Bills, § 345. '
CH. VI.] PRESENTMENT FOR PAYMENT. 243
fully see, 1 ) be no excuse for the omission to demand
payment at the time, when the Note becomes due. 2
The French Law is precisely the same upon this point. 3
And it will make no difference in the application of the
rule by our law, whether the Note has been taken or
transferred for a precedent debt, or for money advanced
on a purchase thereof. In the former case, the right to
recover the precedent debt, as well as the right to reco-
ver on the Note, will be gone, and so also the right to
recover back the money, or recover on the Note, in the
latter case. 4 Nor will the circumstance, that the holder
has received the Note so near the time, when it becomes
due, as to render it impracticable to make a present-
ment for payment at its maturity, constitute any excuse
for the want of a due presentment, as to the other par-
ties to the Note ; whatever might be the case as to the
party, from which he then first received it. In respect
to the latter, perhaps all, which, under such circum-
stances, can be required, is to present it with reasonable
diligence, as soon as it can be, for payment, and, if dis-
honored, to give him due notice thereof. 5 The French
i Post, § 241 ; Story on Bills, § 346.
2 Story on Bills, § 234, 279, 307, 318, 319, 346 ; Chitty on Bills, ch. 8,
p. 360, {8th edit. 1833) ; Id. ch. 9, p. 386, 389; Bayley on Bills, ch. 7,
§ 1, p. 251, (5th edit. 1830); Molloy, B. 2, ch. 10, § 34; Russell v.
Langstaffe, Doug. R. 515 ; Esdaile v. Sowerby, 11 East, R. 117 ; Bowes
v. Howe, 5 Taunt. R. 30 ; S. C. 16 East, R. 112, 1 Maule & Selw.555 ;
Nash v. Harrington, 2 Aikens, R. 9.
3 Pothier, De Change, n. 146, 147 ; Pardessus, Droit Comrn. Tom. 2,
art. 424 ; Id. Tom. 5, art. 1497; Story on Bills, § 347.
4 Chitty on Bills, eh. 9, p. 385 - 387, 417, 418, (8th edit. 1833) ; Bayley
on Bills, ch. 7, § l,p. 232-234, (5th edit. 1830) ; Camidge v. Allenby, 6
Barn. & Cressw. 373 ; Bridges v. Berry, 3 Taunt. R. 130.
5 Chitty on Bills, ch. 9, p. 423, (8th edit. 1833) ; Anderton v. Beck, 16
East, R. 248 ; Bayley on Bills, ch. 7, § 1, p. 243, (5th edit. 1830.)
244 PROMISSORY NOTES. [CH. VL
Law, upon this point, also, seems exactly in coincidence
with ours. 1
§ 204. The old French Law was equally as expres-
sive as ours, that the bankruptcy or insolvency of the
acceptor, at the maturity of the Bill, (and the same rule
was applied to a Promissory Note,) constitutes no ex-
cuse for the want of a due presentment for payment by
the holder at that time. 2 The modern Code of Com-
merce positively declares, that the holder of a Bill of
Exchange or a Promissory Note, is not dispensed from
protesting the Bill for the non-payment thereof, either
by its having been protested for non-acceptance, or by
the death or failure of the drawee, or maker. 3 And it
adds, that in case of the failure of the acceptor or
maker, before the Bill or Note becomes clue, the holder
may cause it to be protested, and have his recourse
against the other parties to the Bill or Note for pay-
ment, or for security for payment, 4 The French Law
seems even to go further, and to require that the de-
mand and protest should be made in cases of such
bankruptcy and insolvency, although, by the law of the
place, where the Bill or Note is payable, no demand or
protest is, in such a case required. 5 Pardessus puts
this as clear, and says that if a Bill be drawn in France,
payable in a foreign country, it will be necessary, al-
1 Pardessus, Droit Coram. Tom. 2, art. 426 ; Id. Tom. 5, art. 1497 ;
Story on Bills, § 326, 346, 347.
2 Pardessus, Droit Coram. Tom. 2, art. 424 ; Id. Tom. 5, art. 1497 ;
Pothier, De Change, n. 147 ; Savary, Le Parfait Negocianl, Tom. 2,
Parere 45, p. 360 ; Story on Bills, § 319, 326.
3 Code de Comm. art. 163, 187.
4 Ibid. ; Sautayra, snr Code de Comm. art. 163, p. 110; Story on Bills,
§ 322.
5 Pardessus, Droit Comm. Tom. 5, art. 1497 ; Story on Bills, § 177, note.
CH. VI.] PRESENTMENT FOR PAYMENT. 245
though the law of the place dispenses with a protest in
case of such bankruptcy or insolvency, and that the
holder should still protest the Bill, under the peril of
otherwise losing his recourse against the French drawer ;
for, in such a case, the law of France, where the contract
between the drawer and the payee, or other holder, was
made, is to govern as to the acts to he done, to entitle
the latter to a recovery. 1 And he applies the same rule
as to the remedy of the holder against the indorsers,
under the like circumstances. 2 It is almost unneces-
sary to add. that what is here said as to Bills of Ex-
change is equally applicable to Promissory Notes, muta-
tis mutandis?'
§ 205. Still, however, there are certain grounds, (as
we shall more fully see hereafter,) which will, ordinarily,
excuse the want of a due presentment for payment at
the maturity of the Note, resulting either from a moral,
or a physical inability, or from other causes, which the
law deems a sufficient dispensation, or excuse, for the
delay or omission to make due demand on the very day
of payment. These are, for the most part, the same,
which will ordinarily excuse the want of due notice of
the dishonor of the Note, and will come under our con-
sideration more fully hereafter. 4 Among these, we may
mention the sudden illness or death of the 'holder or his
agent; the absconding of the maker before the day of
payment, or his place of residence being deserted or
unknown, or unfound, after diligent search therefor ; the
i Ibid.
2 Ibid. But see Story on Bills, § 176, 177, and note.
3 See Code de Coram, art. 187 ; Story on Bills, § 347.
4 See Story on Bills, § 308, 326, 327, 344 ; Chitty on Bills, ch, 10,
p. 486-488, (8th edit.) ; Post, §257-263, § 355-360.
21*
246 PROMISSORY NOTES. [CH. VI.
general prevalence of a malignant disease, such as the
yellow fever or cholera, to an extent, which stops all
business and trade in the place ; the impossibility of
reaching the place where the maker resides, from snows
or freshets, or overwhelming accidents ; the occurrence
of war, or the interdiction of commercial intercourse
with the country where the maker resides ; and the day
of the maturity of the Note, occurring on a public holy-
day, or a religious festival, or a solemn fast, celebrated
according to the known usage, or the ordinances of the
country. 1
§ 206. Pothier lays down a rule equally broad and
satisfactory, in respect to the due demand and protest
of Bills of Exchange, (and the like doctrine is applica-
ble to Promissory Notes,) namely, that any inevitable
accident, or irresistible force, or unforeseen occurrence,
which could not be provided against, will constitute a
sufficient excuse for the neglect or omission. And for
this, he relies upon the general maxim of the Roman
Law, in cases of contract : impossibilium nulla obligatio
est? Indeed, this seems to be admitted by foreign ju-
rists, as the general rule which governs their jurispru-
dence. But of this, more will be said in our subsequent
pages.
§ 207. Promissory Notes are not ordinarily made pay-
able at sight, or at a fixed time after sight, although
they may be so ; 3 but they are ordinarily made payable
i Story on Bills, § 233, 234, 308, 327; Post, § 257-263; Chitty on
Bills, ch. 8, p. 360, (8th edit.) ; Id. ch. p. 389-392, (8th edit.) ; Id.
p. 422, 423 ; Id. ch. 10, p. 485, 524.
2 Pothier, De Change, n. 144 ; Dig. Lib. 50, tit. 17, 1. 185 ; Pardessas,
Tom. 2, art. 426.
3 Bayley on Bills, ch. 7, § 1, p. 248, (5th edit.) ; Thomson on Bills, ch.
6, $ 2, p. 430, 431, (2d edit.) ; Chitty on Bills, ch. 9, p. 407, (8th edit.)
CH. VI.] PRESENTMENT FOE PAYMENT. 247
either at a fixed period after date, or upon demand. If
a Note is made payable on demand, the time at which
payment thereof must be demanded, must depend upon
the circumstances of each particular case, and no gene-
ral rule can be laid down, except that payment must be
demanded within a reasonable time. 1 If the Note be
1 Siory on Bills, § 231 ; Bayley on Bills, ch. 7, § 1, p. 234, (5th edit.) ;
Thomson on Bills, ch. 6, § 2, p. 430, 431 ; Ricew. Wesson, 11 Mete. R.
400; Lockwood v. Crawford, 18 Conn. R. 361. Mr. Bayley says; " A
Bill or Note, payable on demand, is payable immediately upon presentment ;
and, unless put into circulation, must be presented within a reasonable
time after the receipt." Bayley on Bills, ch. 7, § 1, p. 234, (5th edit.) ;
Id. p. 232. He applies the same rule to Bills or Notes, payable at sight,
as to Bills payable on demand. Id. p. 236. Mr. Chitty affirms the same
doctrine as to Notes payable on demand. Chitty on Bills, ch. 9, p. 402,
(8th edit.) ; Id. p. 412, 413. He here says ; — " Upon this question, it has
been observed, that there is no other settled general rule, than that the
presentment must be made within a reasonable time, which must be ac-
commodated to other business and affairs of life, and that a party is not
bound, in any case, to present a Bill or Note, payable on demand, on the
same day it is issued or received by him ; for a man ought not to be re-
quired to neglect every other business for the purpose of making so prompt
a presentment ; and it would be very inconvenient to have an inquiry in
each particular case, whether or not the holder could conveniently have
presented the instrument on the same day. And, as observed by Lord
Mansfield, it would be unreasonable to suppose that a tradesman should be
compelled to run about the town with a dozen drafts, from Charing Cross
to Lombard Street, on the same day ; and he directed the jury to consider
that twenty-four hours were the usual time allowed for the presentment for
payment. The notion, however, that twenty-four hours was the limit is
not the present rule ; and it suffices, in all cases, for a party to present a
Bill or Note, payable on demand, at any time during the hours of business
on the day after he received it. But although this rule universally pre-
vails between the party delivering and the party receiving from him a Bill
or Note so payable, yet it must not be understood, that the ultimate pre-
sentment for payment can be delayed for any indefinite time, by successive
transfers between numerous parties, and by each party, on the day after he
has received the Bill or Note, transferring it to another ; for if there should,
by any means, be an unreasonable number of days occupied, the party or
parties first transferring the instrument, and other of the earlier parties,
would probably be considered discharged from liability, in case the bankers,
248 PROMISSORY NOTES. [CH. VI.
payable at sight, or at so many days after sight, the
same rule would seem to prevail as upon Bills of Ex-
or person who issued the Note, so payable, should in the mean time fail ;
and no prudent party should permit any delay in presentment, especially if
there be the least reason to doubt the solvency of the party to pay. It is
perfectly clear that if a party who has received such a Bill or Note, does
not, on the next day, present it, or forward it for presentment, in due time
on the next day, nor transfer it, but locks it up, or keeps it, he thereby for-
feits all claim upon the person from whom he received it. It seems, that,
with respect to the length of time, Bills and Notes, payable on demand,
may be kept in circulation, a distinction may be taken between the Notes
of a private individual and country bankers' Notes, and also with reference
to the persons by and between whom they have been circulated ; and it has
been considered, that upon a Bill or Note, payable on demand, and given
for cash, by a person who makes the profit by the money on such Bills or
Notes a source of his livelihood, (as in the case of country bankers issuing
their Notes,) it is difficult to say, what length of time such person shall be
entitled to consider unreasonable ; but that upon such Bills or Notes given
by way of payment, or paid into a banker's, any time, beyond what the
common course of business warrants, is unreasonable. This position is
explained by a recent case, where the defendants themselves, country
bankers, transferred another country banker's Bill, some days after they
had kept it, to the plaintiff's traveller, who did not remit it to the corres-
pondents for some days; and, on its being presented, it was dishonored ;
and it was held, that the defendants were not discharged from liability ;
because, as Lord Tenterden observed, the character of the Bill, and the
course of dealing must be attended to. It was a Bill by a country banker
upon his London banker, and it did not seem unreasonable to treat such
Bills as not requiring immediate presentment, but as being retainable by
the holders for use within a moderate time, as part of the circulating me-
dium of the country ; and the defendants themselves, by the time they kept
it, showed they so considered this Bill, but he left it to the jury to say
whether they thought the delay unreasonable or not, and they found for
the plaintiff. Upon a Bill or Note of this kind (i. e. payable on demand)
given by way of payment, the course of business formerly was, to allow
the party to keep it, if it was payable in or near the place, where it was
given, until the morning of the next day of business, after it was received ;
and, according to more modern decisions, it is settled, that if such a Bill or
Note be payable by or at a banker's, it suffices to present it for payment at
any time during banking hours on the day after it is received. Thus,
where a note of this kind, payable in London, was given there in the morn-
ing, a presentment the next morning was held by the Court sufficiently
CH. VI.] PRESENTMENT FOR PAYMENT. 249
change, drawn at or after sight. 1 That is to say, the
date of the Note would be treated as if it were the
date of a Bill, payable at or after sight, and the time
would begin to run from the presentment of the Note,
as it would from the presentment for acceptance. In
short, although the maker of a Note payable at sight,
(which is, however, allowed the usual days of grace, as
we shall presently see, 2 ) or payable after sight, has sight
of the instrument, when he makes it ; yet a distinct
and subsequent presentment must afterwards be made,
and the time of payment be reckoned from the day of
such presentment and exclusive thereof. 3
§ 208. Now, the rule in relation to Bills of Exchange,
whether foreign or domestic, payable at or after sight,
unequivocally is, that they must be presented for accept-
ance, (and by analogy the rule applies to presentment
early, though juries endeavored to establish a contrary rule, and to find,
that the instrument must be presented on the very day it was received ;
and though it has been supposed, that the presentment must be in the fore-
noon of the next day, yet, in other cases, it was considered, that the party
has twenty-four hours, or, according to a more recent decision, he has the
whole of the banking hours, or hours of business of the next day, to make
the presentment ; and this last decision may now be relied upon as the fixed
rule. It has been held, that a Bill or Note of this kind, given by way of
payment to a banker, must be presented by him as soon as if it had been
paid into his hands by a customer, and that if such a Bill or Note be paid
into a banker's, and be payable at the place where the banker lives, it must
be presented the next time the banker's clerk goes his rounds, but that
doctrine has been overruled, and it should seem, that in all cases it suffices
for a banker to present such check the day after he receives it." See,
also, Foster v. Barney, 3 Verm. R. 60 ; Brentzer v. Wightman, 7 Watts
& Serg. 264.
i Bayley on Bills, ch. 7, § 1, p. 227, 234, 236, (5th edit.)
2 Bayley on Bills, ch. 3, \ 10, p. 98 ; Post, § 211.
3 Chitty on Bills, ch. 9, p. 406, 407, (8th edit.) ; Sturdy W.Henderson,
4 Barn. & Aid. 592, 593 ; Bayley on Bills, ch. 3, § 10, p. 98, (5th edit.) ;
Story on Bills, § 355, note.
3
250 PROMISSORY NOTES. [CH. VI.
of Notes payable at and after sight) within a reasonable
time; and what that reasonable time is must depend
upon the circumstances of each particular case. 1 The
holder of such a Note is not at liberty to keep it in his
possession for an unreasonable time without present-
ment, and to lock it up from circulation. If he does, he
will make the note his own, and will discharge the ante-
cedent indorsers thereon from all responsibility. 2 But
if the Note is kept in circulation, and not held by any
one holder, through whose hands it passes, an unreason-
able time, it seems difficult to assign any particular
time in which it ought to be presented to the maker, so
as the time of payment should begin to run thereon.
There may be some limitations upon this rule, in its
application to particular classes of cases, resulting from
the common course of business, or the circulation of
1 Bayley on Bills, ch. 7, § 1, p. 227, 228, 232, 234; Story on Bills,
§ 231 ; Chitty on Bills, ch. 7, p. 301-305, (8th edit.)
2 Bayley on Bills, ch. 7, § 1, p. 227-230, 232, (5th edit.)
3 Bayley on Bills, ch. 7, p. 232, 233, (5th edit.) ; Story on Bills, § 231 ;
Chitty on Bills, ch. 7, p. 301-305 ; Muilman v. D'Egu'ino, 2 H. Black.
565, 569 ; Goupy v. Harden, 7 Taunt. R. 159 ; Mellish v. Rawdon, 9
Bing. R. 416 ; Fry v. Hill, 7 Taunt. R. 397 ; Gowan v. Jackson, 20 John.
R. 176 ; Robinson v. Ames, 20 John. R. 146. On this subject Mr. Chitty
(p. 301,) says ; " With respect to the time when Bills, payable at or after
sight, should be presented for acceptance, the only rule, whether the Bill
be foreign or inland, and whether payable at sight, or at so many days after
sight, or in any other manner, is, that they must be presented within a
reasonable time ; and, as the drawer may sustain a loss by the holder's
keeping it any great length of time, it is advisable in all cases, to present
it as soon as possible ; but he is not obliged to send it by the first opportu-
nity. According to the French Law, Bills payable at or after sight must
be presented for acceptance within certain specified periods, according to
the places at which they are drawn ; and the French Law has also provi-
ded against a purposely hasty presentment and demand of acceptance,
before the drawee can have received advice, and that the holder must
allow as many days as there are five leagues, or fifteen miles, between
the place of drawing and the place in which drawn."
CH. VI.] PRESENTMENT FOR PAYMENT. 251
particular classes of Notes, such as those of bankers and
banks ; but these all resolve themselves into questions
of usage. 1
1 Story on Bills, § 231 ; Bayley on Bills, ch. 7, § 1, p. 227, 228, 236,
(5th edit.) ; Chitty on Bills, ch. 7, p. 303, 304, (8th edit.) Mr. Chitty
(p. 303,) says; '' The holder of an inland Bill, payable after sight, is not
bound instantly to transmit the Bill for acceptance ; he may put it into cir-
culation, and, if he do not circulate it, he may take a reasonable time to
present it for acceptance, and the keeping it even an entire day after he re-
ceived it, and a delay to present until the fourth day, a Bill on London,
given within twenty miles thereof, is not unreasonable. In a late case, it
seems to have been considered, that a distinction may be taken as to the
nature of the Bill, and whether it was intended for immediate payment, or
to be kept some time in circulation, as is the case of Bills after sight,
drawn by country bankers on London bankers, and put in circulation by
the former, especially if the party objecting to the delay has himself kept
the Bill in his possession for some days." Mr. Bayley (p. 236-243,)
says ; " Upon a Bill or Note, payable on demand or at sight, and given
for cash by a person, who makes the profit by the money on such Bills or
Notes a source of his livelihood, it is difficult to say what length of time
such person shall be entitled to consider unreasonable ; but, upon such Bills
or Notes, given by way of payment, or paid into a banker's, any time be-
yond what the common course of business warrants, is unreasonable.
Upon a Bill or Note of this kind, given by way of payment, the course of
business seemed ' formerly to allow the party to keep it, if payable in the
place, where it was given, until the morning of the next day of business
after its receipt ; and till the next post, if payable elsewhere ; but not
longer. Thus, where a Note of this kind, payable in London, was given
there in the morning, a presentment the next morning was held sufficiently
early ; a presentment at two the next afternoon too late. In a later mo-
dern case, where a similar Note was given in London at one, and not
presented till the next morning, three juries held the delay unreasonable,
but it was against the opinion of the court. But in a more recent case,
where such a Note, payable in London, was given in the country, it was
held, that the person receiving it was not bound to send it to London till
the following day. And, that the person receiving it in London was not
bound to present it till the next day. A Bill or Note of this kind, given by
way of payment to a banker, must be presented by him as soon as if it had
been paid; into his hands by a customer. And it has been held, that a
Bill or Note of this kind, if payable at the place, where the banker lives,
must be presented the next time the banker's clerk goes his rounds. But,
if a London banker receive a check by the general post, he is not bound
252 PROMISSORY NOTES. [CH. VI.
§ 209. Pothier, upon general principles, holds the
same doctrine in cases of Bills of Exchange, payable at
or after sight, that there is no absolute rule, as to the
time in which they should be presented for payment ;
and that it must be left to the judgment of the Court,
whether the presentment has been made within a rea-
sonable time ; for it would not be equitable, that the
holder should, by too long a delay, throw the risk of
the solvency of the drawee upon the drawer. 1 The pre-
sent Commercial Code of France has positively fixed
the different periods, within which Bills, drawn at or
after sight, shall be presented for acceptance, varying
the time according to the different places where the
Bills are drawn, and the different places on which the
Bills are drawn. 2 It is true, that the doctrine here
stated is applied by him in the text, solely to Bills of
Exchange ; but it is equally applicable to cases of Pro-
missory Notes, and therefore is not separately discussed,
either by Pothier, or in the Code of Commerce. 3 By
to present it for payment until the following day. And where a person in
London received a check upon a London banker, between one and two
o'clock, and lodged it soon after four with his banker, and the latter pre-
sented it between five and six, and got it marked as a good check, and the
next day at noon presented it for payment at the clearing-house ; the court
held, that there had been no unreasonable delay, either by the holder, in
not presenting it for payment on the first day, which he might have done,
or by his banker in presenting it at the clearing-house only, on the fol-
lowing day at noon ; it being proved to be the usage among such bankers,
not to pay checks presented by one banker to another after four o'clock,
but only to mark them if good, and to pay them the next day at the clear-
ing-house."
i Pothier, De Change, n. 143 ; Pardessus, Droit Comm. Tom. 2, art.
358.
2 Code de Comm. Liv. 1, tit. 8, art. 160 ; Locre, Esprit du Code de
Comm. Tom. 1, Liv. 1, tit. 8, § 1, art. 160 ; p. 499-502; Pardessus,
Droit Comm. Tom. 2, art. 358, 359 ; Story on Bills, § 232.
s See Code de Comm. art. 187.
CH. VI.] PRESENTMENT FOR PAYMENT. 253
the law of Russia, Bills of Exchange are divided into
two sorts, one, where the Bill is drawn by the drawer
on himself, the other, where it is drawn on some third
person ; the former is called simple, the other, transmissi-
ble. The simple Bill seems exactly our Promissory
Note. 1 By the same law, a Bill payable at sight is pay-
able twenty-four hours after its presentment for accept-
ance ; if payable after sight, it falls due after the last
day indicated in the Bill, counting from the day of pre-
sentment, which is not included. 2
§ 210. In our subsequent remarks, we shall refer alto-
gether to Promissory Notes, payable at a fixed period
after their date, unless some exceptions are specially
stated. The rule here is, that the Note must be pre-
sented on the very day on which it becomes due, or
arrives at maturity. 3 This, also, is the rule of the for-
eign law ; and, although it is generally laid down in
terms applicable to Bills of Exchange, it is equally ap-
plicable to Promissory Notes. 4
§ 211. But the question will still remain: At what
time is a Note properly due, or when does it arrive at
maturity ? At first view, an uninstructed reader might
imagine, that this could scarcely present any practical
difficulties as to its solution. Upon farther inquiry,
however, it will be found to involve questions of a highly
important character, and originally not without difficulty,
1 Nouguier, De Change, Tom. 2, p. 504; Art. 294 of Russian Code of
1832 ; Louis. Law Journ. Vol. 1, p. 64.
2 Id. Tom. 2, p. 519, ch. 2, art. 350 ; Louis. Law Journ. p. 78.
3 Story on Bills, § 325, 344 ; Chitty on Bills, ch. 9, p. 385, (8th edit.) ;
Ante, § 201.
4 Heinecc. De Camb. cap. 4, § 24 ; Pothier, De Change, n. 139, 172 ;
Code de Coram, art. 131-135, 161 ; Story on Bills, $ 334, 338.
PROM. NOTES. 22
254 PROMISSORY NOTES. [CH. VI.
although now the rule is fixed and established beyond
any reasonable controversy. Let us, for example, sup-
pose a Note to be drawn on the first day of January,
1842, payable at ten days after date, without grace. Is
it due on the tenth day of January, or on the eleventh
day of January ? It is now settled that it is due on the
eleventh day of January, or in other words, the day
of the date is excluded from the computation. 1 The
same question might be propounded as to a Note paya-
ble ten days after sight, without grace, and presented
on the first day of January ; and it ought to receive a
similar answer. 2 But it will be found, that, in other
cases, not of a commercial nature, great controversies
have arisen at the Common Law, as to the computation
of the time, when deeds and other instruments are to
have effect and operation, whether from the date, or
from the day of the date thereof, or with reference
thereto, and whether the day of the date is to be taken
as exclusive or inclusive. 3
§ 212. The French Law recognizes the same doctrine,
that the time when a Note becomes due, if it is payable
at a certain time after date, is to be calculated exclusive
of the day of the date of the Note. For it is the maxim
of that law, Dies termini non computatur in termino ; and
1 Chitty on Bills, ch. 9, p. 403, 404, 406, (8th edit. 1833) ; Bayley on
Bills, ch. 7, § 1, p. 248-250, (5th edit. 1830) ; Bellasis v. Hester, 1 Ld.
Raym. 280 ; Coleman v. Sayer r 1 Barnard. R. 303 ; Blanchard v. Hil-
liard, 11 Mass. R. 85 ; Woodbridge v. Brigham, 12 Mass. R. 403 ; S. C.
13 Mass. R. 556 ; Henry v. Jones, 8 Mass. R. 453.
2 Ibid.
3 See Pugh v. the Duke of Leeds, Cowp. 714 ; Glassingtonu. Rawlins,
3 East, R. 407 ; Lester v. Garland, 15 Ves. 254 ; Castle v. Burditt, 3
Term R. 623 ; 4 Kent, Comm. Lect. 56, p. 95, note b, (5th edit.) See
Bigelow v. Willson, 1 Pick. R. 485 ; Presbrey v. Williams, 15 Mass. R.
193 ; Story on Bills, § 329.
CH. VI.] PRESENTMENT FOR PAYMENT. 255
this applies not only as to the commencement, but, also,
to the end of the time specified. 1
§ 213. Again. Suppose a Note, drawn on the thirti-
eth day of January, payable in a month, without grace ;
how is the month to be reckoned ? Is it a lunar month,
or a calendar month, or the period of thirty days ? By
the Common Law of England, a month is constantly
deemed a lunar month, as well in computations made in
the construction of statutes, as in the construction of
mere Common Law contracts. 2 But, by the universal
rule of the commercial world, including England and
America, a month is now deemed, in all cases of nego-
tiable instruments, and, indeed, in all commercial con-
tracts, to be a calendar month. 3 Hence, in the case
above supposed, the Note will, without grace, be paya-
ble on the last day of February, it being the day on
which the month will expire ; and no allowance will be
made for the fact, that February may or does contain
only twenty-eight days. 4 A Promissory Note, therefore,
dated on the first day of January, and payable six
1 Delvincourt, Droit Comm. Tom. 1, Liv. 1, tit. 77, (2d edit.) ; Pothier
De Change, n. 138.
2 Chitty on Bills, ch. 9, p. 406, (8th edit. 1833) ; 2 Black. Comm. 141 ;
Lacon v. Hooper, 6 Term R. 225 ; Castle v. Burditt, 3 Term R. 623 ;
Catesby's case, 6 Co. Rep. 61 ; Lang v. Gale, 1 Maule & Selw. Ill ; In
the matter of Swinford and Horn, 6 Maule & Selw. 226.
3 Story on Bills, § 143 ; Bayley on Bills, ch. 7, § 1, p. 247, 250, (5th
edit. 1830) ; Chitty on Bills, ch. 9, p. 403,404, (8th edit. 1833) ; 4 Kent,
Comm. Lect. 56, p. 95, note b, (5th edit.) ; Jolly v. Young, 1 Esp. R.
186 ; Titus v. Lady Preston, 1 Str. R. 652. — In America, the computa-
tion has generally, but not universally, been by calendar months, and not
by lunar months, as well in the construction of statutes, as of common
contracts. See Kent, Comm. Lect. 56, p. 95, note b, (5th edit.) ; Hunt v.
Holden, 2 Mass. R. 170 ; Avery v. Pixley, 4 Mass. 4. 460 ; Thomas v.
Shoemaker, 6 Watts & Serg. R. 179.
4 Tassell v. Lewis, 1 Ld. Raym. R. 743; 3 Kent, Comm. Lect. 44, p.
102-104, (5th edit.) ; Chitty on Bills, ch. 9, p. 406, (8th edit.)
256 PROMISSORY NOTES. [CH. VI.
months after date, or after sight, without grace, will be
payable on the corresponding day of the sixth month,
viz. : the first day of July, for then the six months will
expire, whatever number of days the intermediate
months may contain. 1
§ 213 a. Other cases maybe put, which involve more
nicety. Suppose a Note dated on the twenty-eighth,
twenty-ninth, thirtieth, or thirty-first clay of January,
payable in one month ; on what day will it become due ?
The true answer will be, on the twenty-eighth of Feb-
ruary, if the year is not bissextile, and if it be, then on
the twenty-ninth day of February, and grace is to be
calculated thereon from and after the twenty-eighth or
twenty-ninth day of February accordingly. 2 Suppose
a Note dated on an impossible day, as the thirty-
first of September, payable in six months, it will be
deemed payable as if dated on the thirtieth clay of
September, that is, it will be due on the thirtieth day
of March, 3 and the days of grace are to be added. 4 So,
if a Note is dated on the twenty-eighth of February,
payable in one month, it will be due on the twenty-
eighth of March, and adding the days of grace, on the
thirty-first of March. 5 If a Note is dated on the twen-
ty-ninth of February, in a bissextile year, payable in
one month, it will be due in like manner on the twenty-
ninth of March, and with grace on the first of April. If
a Note is dated on the thirtieth of April, payable in one
month, it will be due on the thirtieth of May, (and not
on the thirty-first,) and with grace added on the second
of June. 6 So, a Note dated on the twenty-ninth of
1 Chitty on Bills,' ch. 9, 406, (8th edit.) ; Story on Bills, § 330.
2 Wagner v. Kenner, 2 Rob. Louis. R. 120.
3 Ibid. 4 ibid. 5 ibid. 6 Ibid.
CH. VI.] PRESENTMENT FOR, PAYMENT. 257
August, payable in six months, will be due, including
days of grace, on the third of March following. 1 So a
Note dated on the twenty-ninth of August, payable in
six months after elate, will be due in common years on
the twenty-eighth day of February, and including grace
on the third day of March. 2 In all these various cases,
the same general rule prevails, to construe the month
as meaning a calendar month, and to end the month
with the corresponding day of the succeeding month
if there be one ; and if there be none, then to adopt
the nearest day, by the doctrine of cy-pres. Thus, if
the date begins on the last day of any month, whether
it be on the twenty-eighth, the twenty-ninth, the thirti-
eth, or the thirty-first day of that month, then to end
the succeeding month on the same day, if there be one ;
if there be none, to take the latest day of the same
month, as the nearest approximation thereto. The rule
is not an arbitrary one, but is deduced as the presumed
real intention of the parties. Of course, in this state-
ment the days of grace have been excluded from our
consideration, in order to simplify the illustration; but
practically they are to be added in all the cases, to as-
certain the actual time when the Note becomes due.
§ 214. As Notes, made in one country, are sometimes
payable in another, it becomes necessary, here, to advert,
in a brief manner, to the difference of style in different
countries, which may require, in the computation of
time, a reference to the style of the country, where the
Note is made. Thus, for example, Russia still continues
to use the old style, although all the other countries of
Europe use the new. Under the old style, the course
Wood v. Mullen, 3 Rob. Louis. R. 299. 8 Ibid, 395,
22 *
258 PROMISSORY NOTES. [CH. VI.
of reckoning is according to the Julian Calendar ; but
under the new, it is according to the Gregorian Calen-
dar; the difference between the two styles being,, at the
present time, twelve days ; that is to say, twelve days
are added to the time reckoned by the old style, to
bring the time to the corresponding day of the new
style. Thus, for example, if a Note is dated in Russia,
on the first day of January, 1842, old style, it precisely
corresponds to the thirteenth of January, 1842, accord-
ing to the new style, which is used in America and
England, and, perhaps, all the countries of Europe, ex-
cept Russia ; * and, conversely, if a Note is drawn in
England, or America, dated on the first day of January,
1842, the corresponding day in the old style is the
twentieth day of December, preceding. Hence it is,
that, if a Note be drawn in London, dated the first day
of January, 1842, new style, (that is, the twentieth day
of December, old style,) payable at St. Petersburg,
(Russia,) one month after date, (excluding all days of
grace,) it will, if accepted, be payable, not on the first
day of February, 1842, but on the twentieth day of
January, 1842, for that is the corresponding day, when
the month expires, by the old style. On the other hand,
if a Note is drawn in St. Petersburg, dated the first day
of January, 1842, payable in London, in one month after
date, without grace, it will, if accepted, be payable not
on the first day of February, but on the thirteenth day
of February, 1842, and if payable with grace, on the
third or last day of grace, after that day. 2
1 SeeKyd on Bills, p. 7, (3d edit.) ; Marins on Bills, p. 22, 23, (edit.
1794.)
2 Bayley on Bills, ch. 7, § 1, p. 249, (5th edit. 1830) ; Chitty on Bills,
oh. 9, p. 403, (8ih edit. 1833) ; Beawes, Lex Merc, by Chitty, Vol. 2 y
CH. VI.] PRESENTMENT FOR PAYMENT. 259
§ 215. But, besides these elements in the computa-
tion of the time, at which Promissory Notes become clue
p. 608, (edit. 1813). — Mr. Chitty says ; " When a Bill is drawn at a place
using one style, and payable on a day certain, at a place using another,
the time when the Bill becomes due, must be calculated according to the
style of the place, where it is payable; because the contract, created. by
the making of a Bill of Exchange, is understood to have been made at that
place,, and, consequently, should be construed according to the laws of it.
In other works it is laid down, that, upon a Bill, drawn at a place using
one style, and payable at a place using another, if the time is to be reck-
oned from the date, it shall be computed according to the style of the
place at which it is drawn, otherwise, according to the style of the place
where it is payable ; and, in the former case, the date must be reduced or
carried forward to the style of the place, where the Bill is payable, and
the time reckoned from thence. Thus, on a Bill dated the 1st of May, old
style, and payable here two months after, the time must be computed from
the corresponding day of May, new style, namely 13th of May ; and on a
Bill, dated the 1st of May, new style, and payable at St. Petersburg, two
months after date, from the corresponding day of April, old style, namely,
19th of April." Chitty on Bills, ch. 9, p. 403, (8th edit. 1833) ; Bayley
(on Bills, ch. 7, § 1, p. 249, 5th edit. 1830,) lays down the latter position
in the same language. In the earlier editions of both works, the reverse
mode of computation of the time, under the old and new styles, was, by
mistake, given. See, also, Kyd on Bills, ch. 1, p. 7, 8, (3d edit.) ; Story
on Bills, § 331. Marius, who first published his work on Bills of Exchange
in 1651, on this subject, says, (p. 22, 23, edit. 1794); "A Bill of Ex-
change, dated the second of March, new style, which is the twentieth of
February, old style, (except in leap^ear, which is the twenty-first of Feb-
ruary.) payable in London at double usance, will be due the two-and-twen-
tieth of April, old style, and not the twentieth of April, as some do erro-
neously imagine, who would deduct the ten days (to reduce the new style
to old style) at the end of the double usance, and so they would go as far
as the second of May, new style, and then go backwards ten days, when
of right they should go forwards from the date of old style, relating to the
place where it is payable, and reckon the double usance from the very date
of the Bill, thus; A Bill dated the second of March, new style, is the
twentieth of February, old style, February having but twenty-eight days,
(for the twentieth of February, old style, is the second of March, new
style, even to the very day of the week,) so from the twentieth of Feb-
ruary to the twenty-third of March is one usance, and from the twenty-
third of March to the twenty-second of April there is another usance; and
so in like manner, if a Bill of Exchange be dated the tenth of March, new
style, which is the last of February, old style, payable at treble usance, such
260 PROMISSORY NOTES. [CH. VI.
and payable, there is another allowance of time, which
is of general, although not of universal operation and
usage, and is different in different countries. 1 This is,
a Bill will be due the last of May in London, and not the twenty-eighth of
May, as some do imagine, because February hath but twenty-eight days.
Also, if a Bill be dated the eighth of January in Rouen, payable at double
usance in London, it will fall due the twenty-sixth of February, and if
from that date payable at treble usance, it will fall due the twenty-ninth of
March, as is manifest by the almanac, or table, at the end of this book ; for
you must always count your usances from the very date of the Bill, as I
have made evidently appear by what hath been before declared concerning
usances; and I have seen divers Bills of Exchange which have been sent
from beyond the seas, wherein the drawers have written the old and new
style both together in the date of their Bills one above another, thus :
Amsterdam adj. 3-13 February 16 54-55 for £200 sterling.
Middleborough adj. 15-25 March 16 54-55 for £150 sterling.
Adj. 17 March, \ 1655, in Genoa dollars, 245 at 57 d.
6 April, } £58. 3s. 9d. sterling.
And the like, which is very plain and commendable in those, that do so
write, thereby to make things evident to the capacity of the weakest, and
to avoid any further disputes thereupon, although in those Bills of Ex-
change, where the old and new style are not positively expressed, yet the
same thing is intended and meant, and ought to be understood as if parti-
cularly set down ; for if you have the date in new style, you may soon see
what date it is in old style. And I have taken the more pains to make
this out to every man's understanding, because I do perceive that many
men for their own advantage, and in their own case, are subject to be
biased, and judge amiss ; but I conceive I have herein so clearly evidenced
the truth and reason of my opinion, that it cannot but convince those, that
are, or have been, of a contrary judgment, of their error and mistake, ex-
cept they are wilfully blind, and then none so blind ; or, that they can give
me any better reason for their contrary opinion, and then I will submit unto
them ; for all Bills of Exchange, (as I have said before, and is notoriously
known and assented unto by all,) which are made payable at usances, must
be reckoned directly from the date of the Bill, which, if it be new style,
and payable in London, or any other place where they write old style, the
date must first be found out in the old style, and then count forward and
you cannot mistake."
1 Heineccius, on this subject, says ; " Quamvis vero id tempus vocari
soleat tempus fatale solutionis : quibusdam tamen locis etiam elapso illo
tempore, quod in cambio expressum est, acceptanti dari solent inducise
CH. VI.] PRESENTMENT FOR PAYMENT. 261
the allowance of what are technically called the days of
grace ; to which, incidentally, allusion has been already
made. 1 These days of grace, which take their name
from their being days of indulgence, or respite, granted
to the maker for the payment of the Note, seem to have
had their origin at a very early period in the history of
negotiable paper. They were, probably, originally in-
troduced by the usage of merchants, in the first place,
to enable the acceptor of a Bill the more easily to make
payments of his acceptances, as they became clue, which
as the payments were all to be made in gold and silver,
might sometimes, from the occasional scarcity of the
precious metals, become a matter of no small difficulty
and embarrassment ; and, in the next place, to point out
to the holder, what time he might reasonably grant to
the acceptor for such payment, without being guilty of
laches, or endangering his right of recourse, upon the
ultimate non-payment of the Bill by the acceptor,
against the other parties thereto. 2 In both views, the
aliquot dierum, e. gr. trium, quatuor, quinque, sex, qui vocantur Respitvel
Discretiones-Tage, nee non Nach-vel Ehren-Tage, de quibus singularem
in hac Academia dissertationem scripsit Io. Christoph. Frankius. Hae
induciae in terris Brandenburgicis sunt trium dierum, 0. C. Brandenb. art.
24 ; in Saxonia vero ob fidem mercatorum vacillantem plane sunt abolitae."
By the Code of Russia of 1832, a Bill of Exchange, payable so many days
or months after date, falls due after the expiration of the last day. Nou-
guier, De Change, Tom. 2, p. 519 ; Code of Russia, art. 351 ; Louis. Law
Journ. Vol. 1, p. 78, (1842.)
i Ante, § 170 ; Story on Bills, § 155, 170, 177 ; Chitty on Bills, ch. 9,
p. 407, (8th edit. 1833) ; Heinnec. de Camb. cap. 2, § 13, 14.
2 Mr. Chief Justice Marshall, in Ogden v. Saunders, 12 Wheat. R. 213,
342, speaking on this subject, as applicable to Promissory Notes, says ;
" The usage of banks, by which days of grace are allowed on Notes pay-
able and negotiable in bank, is of the same character. Days of grace, from
tbeir very term, originate partly in convenience and partly in the indul-
gence of the creditor. By the terms of the Note, the debtor has to the
last hour of the day on which it becomes payable, to comply with it; and
262 PROMISSORY NOTES. [CH. VI.
usage was, at first, probably discretionary and voluntary
on the part of the holder, and gradually, from its gene-
ral convenience and utility, it ripened into a positive
right, as it certainly now is, and was also applied to
Promissory Notes. 1
it would often be inconvenient to take any steps after the close of day. It
is often convenient to postpone subsequent proceedings till the next day.
Usage has extended this time of grace, generally, to three days, and in
some banks to four. This usage is made a part of the contract, not by the
interference of the legislature, but by the act of the parties. The case
cited from 9 Wheat. R. 581, is a Note discounted in bank. In all such
cases, the bank receives, and the maker of the Note pays, interest for the
days of grace. This would be illegal and usurious, if the money was not
lent for these additional days. The extent of the loan, therefore, is regu-
lated by the act of the parties, and this part of the contract is founded on
their act. Since, by contract, the maker is not liable for his Note until
the days of grace are expired, he has not broken his contract until they ex-
pire. The duty of giving notice to the indorser of his failure does not
arise until the failure has taken place ; and, consequently, the promise of
the bank to give such notice is performed, if it be given when the event has
happened."
1 Bell, Comm. B. 3, ch. 2, § 4, p.410, (5th edit.) ; Kyd on Bills, ch. 1,
p. 9, 10, (3d edit.) ; Chitty on Bills, ch. 9, p. 407, (8th edit. 1833) ; Heinecc.
de Camb. cap. 2, § 14. — Mr. Kyd (on Bills, ch. 1, p. 9, 3d edit.) gives
the old rule, or usage, as the days of grace in different countries, thus :
" A custom has obtained among merchants, that a person, to whom a Bill
is addressed, shall be allowed a little time for payment, beyond the term
mentioned in the Bill, called days of grace. But the number of these days
varies, according to the custom of different places. Great Britain, Ireland,
Bergamo, and Vienna, three days ; Frankfort, out of the time of the fair,
four- days; Leipsic, Naumburg, and Augsburg, five days; Venice, Am-
sterdam, Rotterdam, Middleburg, Antwerp, Cologne, Breslau, Nuremberg,
and Portugal, six days ; Dantzic, Konigsberg, and France, ten days ; Ham-
burg and Stockholm, twelve days; Naples eight, Spain fourteen, Rome
fifteen, and Genoa thirty days ; Leghorn, Milan, and some other places in
Italy, no fixed number. Sundays and holydays are included in the respite
days at London, Naples, Amsterdam, Rotterdam, Antwerp, Middleburg,
Dantzic, Konigsberg, and France ; but not at Venice, Cologne, Breslau,
and Nuremberg. At Hamburg, the day, on which the Bill falls due,
makes one of the days of grace, but it is not so elsewhere." Mr. Chitty
(Chitty on Bills, ch. 9, p. 407, 408, 8th edit. 1833,) gives the more
modern rule, or usage, thus ; " The number of these days varies, accord-
CH. VI.]
PRESENTMENT FOR PAYMENT.
263
§ 216. In respect to the allowance, or non-allowance,
of days of grace, the rule is, that it is to be governed
altogether by the law of the place, where the Promis-
ing to the ancient custom or express law prevailing in each particular coun-
try. In the former edition of this work was given a table of the days of
grace, allowed in the time of Beawes, but various alterations were intro-
duced by the Code Napoleon, and, therefore, the following table, acknow-
ledged to be the most accurate, is substituted ; —
pre- \
Altona. Sundays and holydays included, and Bills falling due on a Sun-
day or holyday must be paid, or in default thereof, protested, on the day
previous. ......
America, ......
Amsterdam. Abolished since the Code Napoleon.
Antwerp. Ditto.
Berlin. When Bills, including them, do not fall due on a Sunday or
holyday, in which case, they must be paid or protested the day pre-
vious. .....
Brazil. Rio Janeiro, Bahia, including Sundays, &c, as in the last case.
England, Scotland, Wales, and Ireland,
France. Abolished by the Code Napoleon, Livre 1, tit. 8, § 5, pi. 135 ;
1 Pardessus, 1S9. Ten days were formerly allowed, Pothier, pi. 14, 15.
Frankfort on the Main. Except on Bills drawn at sight, Sundays
and holydays not included.
Genoa. Abolished by the Code Napoleon.
Hamburg. Same as Altona. ....
Ireland, ......
Leghorn. ......
Lisbon and Oporto. 15 days on local and 6 on foreign Bills ; but, if not
previously accepted, must be paid on the day they fall due.
Palermo, ......
Petersburg. Bills drawn after date are entitled to 10 days' grace, those -^
drawn at sight, to only 3 days', and those at any number of days after
sight, none whatever. But Bills, received and presented after they
are due, are, nevertheless entitled to 10 days' grace. In these days of
grace are included Sundays and holydays, also the day, when the Bill }-
falls due, on which days they cannot be protested for non-payment,
but, on the morning of the last day of grace, payment must be de-
manded, and, if not complied with, the Bill must be protested before
sunset. .......
Rotterdam. Abolished by the Code Napoleon.
Scotland, ......
Spain. Vary in different parts of Spain, generally 14 days on foreign, "}
and 8 on inland Bills ; at Cadiz, only 6 days' grace. When Bills are j
drawn at a certain date, fixed or precise, no days of grace are allow- /■
ed. Bills drawn at sight are not entitled to any days of grace; nor are j
any Bills, unless accepted prior to maturity. . . .J
12 days.
3 days.
none.
none.
3 days.
15 days.
3 days.
none.
4 days.
none.
12 clays.
3 days.
none.
6 days, or
15 days.
none.
10 days,
3, &c.
none.
3 days.
14 days,
but vary.
264 PROMISSORY NOTES. [CH. VI.
sory Note is payable. 1 Thus, for example, if the Note
is payable in France, where, by the present Code of
Commerce, no days of grace are allowed, the Note be-
comes due at the regular expiration of the time stated
on the face of the Note, and no days of grace are al-
lowable. 2 On the other hand, if the Note is payable in
England, then the full days of grace are allowed, accord-
ing to the law of England ; and the like rule prevails
as to all other countries. 3 Indeed, it may be laid clown
as a general rule, that the law of the place, where a
Note is payable, is to govern, not only as to the time,
but as to the mode of presentment for payment. 4
§ 217. Although the days of grace are different in
different commercial countries, and are to be computed
according to the law of the place, where the Note is
payable ; 5 yet, in most, although not in all, of them, the
same general rule prevails, that they are to be calcu-
lated exclusive of the day, when the Note would other-
3 days.
the)
t 6 days.
Trieste. 3 days on Bills drawn after date, or any term after sight, not '
less than 7 days, or payable on a particular day ; but Bills, presented
after maturity, must be paid within 24 hours. Sundays and holydays
are included in the days of grace, and if the last day of grace fall on
such a day, payment must be made, or the Bill protested, on the first
following open day. ....
Venice. 6 days, in which Sundays, holydays, and the days when the
bank is shut, are not included.
Vienna. Same as Trieste. . . . . .3 days.
Wales, ....... 3 days."
1 Bell, Coram. B. 3, ch. 2, § 4, p. 411. (5th edit.) ; Goddin v. Shipley,
7 B. Munroe, R. 597.
2 Code de Comm. art. 135 ; Story on Bills, § 155, 177.
3 Pardessus, Droit Comm. Tom. 5, art. 1489, 1495, 1498 ; Pothier, De
Change, n. 155, 172, 187 ; Chitty on Bills, ch.9,p. 409, (8th edit. 1833) ;
Kyd on Bills, ch. 1, p. 9, (3d edit.)
4 Ibid.
5 Story on Bills, § 155, 170; Story on Conflict of Laws, § 316, 347,
361 ; Pothier, de Change, n. 155 ; Pardessus, Droit Comm. Tom. 5, art.
1495 ; Chitty on Bills, ch. 9, p. 406-409, (8th edit. 1833.)
CH. 71.] PRESENTMENT FOR PAYMENT. 265
wise become due. 1 Thus, for example, if a Note is
drawn in America or England on the first day of Janu-
ary, payable, in either country, one month after date,
the days of grace (which, as we haYe seen, are three
days) will begin on the second day of February, and
end on the fourth day of February. 2 On the other
hand, if a Note were drawn in America or England on
the first day of January, payable, in either country, at
thirty days after date, the days of grace would begin
on the first day of February, and end on the third day. 3
1 See Kyd on Bills, p. 9, (3d edit.) ; Beawes, Lex Merc. Bills of Ex-
change, pi. 260 ; Ante, § 211.
2 Ante, § 211, 213 ; Story on Bills, § 332 ; Chatty on Bills, ch. 9, p.
403, 404, 406, 409, 412, (8th edit. 1833) ; Bayley on Bills, ch. 7, § 1, p.
245, 249, 250, (5th edit. 1830) ; Pothier, De Change, n. 14, 15, 139, 172,
187; Sautayra, Sur Code de Comm. art. 131, 132 ; Mitchell v. Degrand,
1 Mason, R. 176 ; 1 Bell, Comm. B. 3, ch. 2, § 4, p. 410, 411, (5th edit.)
Mr. Chitty says; " At Hamburg, the day, on which the Bill falls due,
makes one of the days of grace ; but it is not so elsewhere." Chitty on
Bills, ch. 9, p. 409, (8th edit. 1833) ; 1 Selwyn, Nisi Prius, p. 351, note,
(10th edit. 1842.)
3 Ante, § 211, 213 ; Story on Bills, § 177, 333 ; Pothier, De Change, n.
139, 172 ; Chitty on Bills, ch. 9, p. 406, (8th edit. 1833) ; Bayley on Bills,
ch. 7, § 1, p. 245-247, 249, 250, (5th edit. 1830) ; Sautayra, Sur Code
de Comm. art. 131, 132. — Mr. Chitty says; "When Bills, &c, are
payable at one, two, or more months, after date or sight, the mode of
computing the time, when they become due, differs from the mode of
computation in other cases. In general, when a deed or Act of Parliament
mentions a month, it is construed to mean a lunar month, or twenty-eight
days, unless otherwise expressed ; but, in the case of Bills and Notes, and
other mercantile contracts, the rule is otherwise, and, by custom of trade,
when a Bill is made payable at a month or months after date, the compu-
tation must, in all cases, be by calendar, and not by lunar months ; thus,
when a Bill is dated the first of January, and payable at one month after
date, the month expires on the 1st of February, and, with the addition of
the days of grace, the Bill is payable on the 4th of February, unless
that day be a Sunday, and then on the 3d. When one month is longer
than the succeeding one, it is said to be a rule not to go, in the computa-
tion, into a third month ; thus, on a Bill dated the 28th, 29th, 30th, or 31st
of January, and payable one month after date, the time expires on the 28th
of February in common years, and, in the three latter cases, in leap year
prom, notes. 23
266 PROMISSORY NOTES. [CH. VI.
In other words, in each case, the time of running of the
Note is calculated exclusive of the day of its date. 1
The same rule would apply to a Note, drawn payable
at a certain number of days after sight ; for the time
would begin to run, only from the presentment thereof,
and exclusive of that day, and the days of grace would
be allowable accordingly. 2
§ 218. Pothier states the rule of the old French Law
to be the same, as to the calculation of the days of
on the 29th. When the time is computed by days, the day, on which the
event happens, is to be excluded." Chitty on Bills, ch. 9, p. 406, (8th
edit. 1833.) Again, Mr. Chitty, p. 412, adds; "From these inquiries
into the mode of calculating time and usances, and days of grace, in rela-
tion to Bills, the day of the date of the Bill or Note, or, in the case of
Bills after sight, the day of acceptance, are always to be excluded, and
the usance, or calendar month, or weeks, or days, are to be calculated
from, and exclusive of such days ; and, with the exception of Hamburg,
the days of grace begin the day after the usances or months expire, and, if
the last of the days of grace fall on a Sunday, Christmas-day, Good Friday,
or legal fast, or thanksgiving-day, the Bill or Note is due, and must be
presented on the day before. Thus, if a Bill be dated the 2d of Novem-
ber, 1831, and be payable in England, at two months after date, they
expired on the 2d of January, 1832 ; and, adding the three days of grace,
the Bill fell due on the 5th of that month, and must be then presented."
Story on Bills, § 143, 144, 330.
1 Ibid.
2 Bayley on Bills, ch. 7, § 1, p. 244, 248, 250, (5th edit. 1830) ; Chitty
on Bills, ch. 9, p. 406, 409, (8th edit. 1833) ; Sturdy v. Henderson, 4
Barn. & Aid. 592. Mr. Chitty says ; " When a Bill or Note purports to
be payable so many days after sight, the days are computed from the day
the Bill was accepted, or the Note presented, exclusively thereof, and not
from the date of the Bill or Note, or the day the same came to hand, or
was presented for acceptance ; for the sight must appear in the legal way,
which is, either by the parties accepting the Bill, or by protest for non-
acceptance. And, in the case of a bank post-bill, which is really a Pro-
missory Note, and, in case of a Note payable after sight, though the
maker has sight of the instrument, when he makes it, yet a distinct and
subsequent presentment must afterwards be made, and the time of payment
is reckoned from the day of presentment, exclusive thereof." Chitty on
Bills, ch. 9, p. 406, 407, (8th edit. 1833) ; Story on Bills, § 330.
CH. VI.] PRESENTMENT FOR PAYMENT. 267
grace. 1 We have already seen, that, by the modern
Commercial Code of France, the allowance of any days
of grace is totally abrogated. 2 But still, in France, the
time when a Bill or Note becomes due, if it is payable
at a certain number of days after its date or after sight,
or at one or more usances, if it is accepted, is (as we
have seen 3 ) always calculated exclusively of the day
of the date, or the sight of the Bill or Note ; so that, if
the date, or sight, and the acceptance, be on the first
day of January, and the Bill be payable in thirty days,
it becomes payable on the thirty-first day of January,
and not before. 4
§ 219. In respect to the days of grace, also, another
rule, equally important, seems generally, although not
universally, to pervade all commercial countries in
modern times. It is, that the days of grace are to be
all counted consecutively and in direct succession,
without any deduction or allowance, on account of
there being any Sundays or holydays, or other non-
secular days, intermediate between the first and the
last day. of grace. 5 Thus, if the first day of grace
1 Pothier, De Change, n. 13, 139, 172.
2 Code de Comra. art. 135 ; Pardessus, Droit Comm. Tom. 2, art. 401 ;
Ante, § 216.
3 Ante, § 212 ; Story on Bills, § 332.
4 Sautayra, Comm. Sur Code de Comm. art. 131, 132.
5 Pothier, De Change, n. 139; Bayley on Bills, ch. 7, § 1, p. 245-
250, (5th edit. 1830) ; Chitty on Bills, ch. 9, p. 406, 410-412, (8th edit.
1833) ; Story on Bills, § 233, 234. Mr. Chitty says ; " In Great Britain,
Ireland, (and in Amsterdam, Rotterdam, Antwerp, Middleburg, Dantzic,
and Konigsberg, whilst days of grace were allowed in those places,) Sun-
days and holydays are always included in the days of grace, unless the
last; but not so at Venice, Cologne, Breslau, and Nuremberg." Chitty
on Bills, ch. 9, p. 411, 412, (8th edit. 1833.) In America, the same rule
prevails as in England. In America, the 4th of July is treated as a holy-
day. Cuyler v. Stevens, 4 Wend. B. 566 ; Ransom v. Mack, 2 Hill, N.
Y. R. 587, 592 ; Lewis v. Burr, 2 Cain. Cas. in Error, 195.
268 PROMISSORY NOTES. [CH. VI.
should be on a Saturday, the last day, under our law,
would be on Monday, making no allowance whatsoever
for Sundays, which, in some other cases, (as we have
seen,) as, with reference to the times of giving notice of
the dishonor of a Note, is always excluded from the
computation of diligence. 1 The old French Law, in
like manner, included Sunday, and other holydays, in
the computation of the days of grace. 2
§ 220. But, although the days of grace are never
protracted by the intervention of Sundays, or any other
holydays ; yet they are, on the other hand, by our law,
liable to be contracted and shortened by the last day of
grace falling on a Sunday, or other holyday. For,
whenever the last day of grace occurs on a Sunday, or
other holyday, the Note becomes due and payable, not
on the succeeding day, but on the preceding day. 3 In
i Story on Bills, § 233, 234.
2 Pothier, De Change, n. 139, 152.
3 Bayley on Bills, ch. 7, § 1, p. 247, 248, (5th edit. 1830) ; 1 Bell,
Comm. B. 3, ch. 2, § 4, p. 410, 411, (5th edit.) ; Chitty on Bills, ch. 9,
p. 410-412, (8th edit. 1833) ; Ransom v. Mack, 2 Hill, N. Y. R. 587 ;
Story on Bills, 233; Homes v. Smith, 2 Appleton, R. 264. On this
subject, Mr. Chitty says ; " In this country, at Common Law, if the day,
on which a Bill would otherwise be due, falls on a Sunday, or great holy-
day, as Christmas-day, the Bill falls due on the day before ; and, where a
third day of grace falls on a Sunday, the Bill must be presented on Satur-
day, the second day of grace ; whereas, otherwise, a presentment on a
second day of grace, being premature, would be a nullity. And, by 39
and 40 Geo. III., ch. 42, § 1, where Bills of Exchange and Promissory
Notes become due and payable on Good Friday, the same shall, from and
after the 1st day of June (1800), be payable on the day before Good Fri-
day ; and the holder or holders of such Bills of Exchange, or Promissory
Notes, may note and protest the same for non-payment on the day pre-
ceding Good Friday, in like manner, as if the same had fallen due and
become payable on the day preceding Good Friday ; and such noting and
protests shall have the same effect and operation at law, as if such Bills
and Promissory Notes had fallen due and become payable on the day pre-
ceding Good Friday, in the same manner as is usual in cases of Bills and
CH. VI.] PRESENTMENT FOR PAYMENT. 269
other words, the latest business day, occurring within
the days of grace, is deemed the day, on which the
Note is due and payable ; and the grace then expires. 1
Notes coming due on the day before any Loid's day, commonly called
Sunday, and before the feast of the Nativity, or birthday of our Lord,
commonly called Christmas-day. So, with regard to fast days, it is
enacted by 7 and 8 Geo. IV., c. 15, § 2, that, from and after the 10th day
of April, 1827, in all cases, where Bills of Exchange or Promissory Notes
shall become due and payable on any day appointed by his Majesty's
proclamation for a day of solemn fast, or a day of thanksgiving, the same
shall be payable on the day next preceding such day of fast or day of
thanksgiving; and, in case of non-payment, may be noted and protested
on such preceding day ; and that, as well in such cases, as in the cases of
Bills of Exchange or Promissory Notes, becoming due and payable on
the day preceding any such day of fast, or day of thanksgiving." Chitty
on Bills, ch. 9, p. 410, 411, (8th edit. 1833) ; Bussard v. Levering, 6
Wheat. 102.
1 See Howard v. Ives, 1 Hill, N. Y. R. 263 ; Wooley v. Clements,
11 Alabama R. 220. It is said, that a different rule prevails, in respect to
contracts not negotiable, and contracts, where no days of grace are allowed ;
and, therefore, if a common contract falls due on Sunday, the party has
until the following Monday to perform it. Salter v. Burt, 20 Wend. R.
205. In this case, Mr. Justice Bronson, in delivering the opinion of the
Court, said ; " This check, having been post-dated, was payable on the
day of its date, without any days of grace. Mohawk Bank v. Broderick,
10 Wendell, 304 ; 13 Wendell, 133. It fell due on Sunday, and the ques-
tion is, whether the demand of payment was well made on the previous
Saturday ; or, whether it should have been made on the following Monday.
When days of grace are allowable on a Bill or Note, and the third day
falls on Sunday, the Bill or Note is payable on the previous Saturday.
The same custom of merchants, which, as a general rule, allows three
days of grace to the debtor, has limited that indulgence to two days, in
those cases, where the third is not a day for the transaction of business.
But, when there are no days of grace, and the time for payment or per-
formance, specified in the contract, falls on Sunday, the debtor may, I
think, discharge his obligation on the following Monday. This question
was very fully considered in Avery v. Stewart, 2 Conn. R. 69, which was
an action on a Note, not negotiable, which fell due on Sunday ; and the
Court held, that a tender on Monday was a good bar to the action. I
agree to the doctrine laid down by Gould, J., that Sunday cannot, for the
purpose of performing a contract, be regarded as a day in law, and should,
as to that purpose, be considered as stricken from the calendar. In com-
puting the time, mentioned in a contract, for the doing of an act, inter-
23*
270 PROMISSORY NOTES. [CH. VI.
Thus, if the last day of grace is on Sunday, the Note is
due and payable, and the grace expires, on the pre-
ceding Saturday. And, if two holydays should succeed
each other, as Sunday, on the twenty-fourth of Decem-
ber, and Christmas, on the twenty-fifth of December,
the Note would be due and payable on the preceding
Saturday, the twenty-third of December. 1
§ 221. The same rule prevails in France; for, if a
Bill or Note become payable at a great fete, or a fixed
holyday, or Sunday, payment is demandable the day
before. 2 Pothier seems to have thought, that the old
French Law allowed some distinction in cases of this
sort. If the day of the maturity of the Bill or Note
should fall on Sunday, he admits, that a demand might
be made on the preceding day ; and, if payment be then
absolutely refused, the holder may protest the Bill or
Note. But, if the acceptor or maker should answer,
that he would pay the next day, and not refuse abso-
lutely, then the holder is bound to present it again for
payment on the day of its maturity, although it is Sun-
day ; and, if payment is then made, it is sufficient. If
not then made, a second protest should be made. 3 But
of this some doubt has been entertained in France.
Heineccius lays down the rule, prevailing in Germany,
to be, that in such a case, the demand of payment should
be on the next succeeding day. Si in diem feriatum in-
veiling Sundays are to be counted ; but, when the day for performance
falls on Sunday, it is not to be taken into the computation. The check
was presented before it became payable, and the demand and notice were
consequently insufficient to charge the indorser." 20 Wend. R. 206, 207.
But see Kilgour v. Miles, 6 Gill & John. R. 268.
i Bayley on Bills, ch. 7, $ 1, p. 247, 248.
2 Chitty on Bills, ch. 9, p. 411, (8th edit. 1833) ; Code de Coram, art.
133, 134.
3 Pothier, de Change, n. 140.
CH. VI.] PRESENTMENT FOR PAYMENT. 271
cidit solutionis dies, nee deceptions invitus solvere tenetur, nee
prcesentans solutionem urgere, vel protestationem interponere
potest, sed expectandus est dies sequensB And he traces
this doctrine back to the time of Justinian, by whose
Code holydays, and days of public festivals, were pro-
hibited from being days of the transaction of secular
business. 2
§ 222. And respect is paid, not only to the public
holydays, and religious fasts and festivals of the coun-
try, where the Note is due and payable, as non-secular
days, but also to the religious opinions and usages of
the particular sect to which the maker belongs. A case
may occur in England or America, where a Note may
be due and payable, without the allowance of any of
the three days of grace. Thus, for example, if the first
day of grace should be on Saturday, and Monday should
be Christmas-day, and the maker should be a Jew, by
whose religious usages abstinence from all secular busi-
ness is enjoined on Saturdays, the Note would (it is
1 Heinnec. de Camb. cap. 4, § 41.
2 Ibid., note. The passage in the Code is, " Dies festos majestati altis-
simse dedicatos, nullis volumus voluptatibus occupari, nee ullis exactionum
vexationabus profanari. Dominicum itaque diem ita semper honorabilem
decernimus, et venerandum, ut a cunctis executionibus excusetur ; nulla
quemquam urgeat admonitio ; nulla fidejussionis flagitetur exactio ; taceat
apparitio ; advocatio delitescat ; sit ille dies a cognitionibus alienus ; prse-
conis horrida vox silescat ; respirent a controversiis litigantes, et habeant
foederis intervallum ; ad sese simul veniant adversarii non timentes, sub-
eat animos vicaria posnitudo ; pacta conferant, transactiones loquantur.
Nee hujus tamen religiosi diei otia relaxantes, obsccenis quemquam patimur
voluptatibus detineri. Nihil eodem die sibi vindicet scena theatralis, aut
Circense certamen, aut ferarum lachrymosa spectacula ; et, si in nostrum
ortum, aut natalem celebranda solennitas incident, differatur. Amissio-
nem militiae, proscriptionemque patrimonii sustinebit, si quis unquam hoc
die festo spectaculis interesse, vel cujuscunque judicis apparitor prsetextu
negotii publici, seu privati, hsec, quae hac lege statuta sunt, crediderit te-
meranda." Lib. 3, tit. 12, 1. 11.
272 PROMISSORY NOTES. [CH. VI.
presumed) be payable on Friday, without any grace
whatsoever. For the Jew maker would not be com-
pelled to do business on Saturday; and the laws or
usages of the country would not justify a demand on
Sunday or Christmas. 1
§ 223. The reason of all this doctrine seems to be,
that, as the allowance of the days of grace is a mere
indulgence to the maker, it shall be granted only in
cases where it will not work any extra delay to the
holder of the Note ; but he shall be entitled to strict
payment at the punctum temporis of the Note. If any
other rule were adopted, the holder would be compelled
to lose the use of his money for four days; and thus
the period of delay be protracted, to his inconvenience,
and, perhaps, injury. Pothier has very justly remarked,
that the days of grace are, as the name imports, a mere
favor accorded to the acceptor or maker, hamanitatis ra-
tions, to distinguish them from the time stated on the
face and purport of the Bill or Note. 2
§ 224. Another question often arises, as to the kinds
of Notes on which days of grace are allowed. In Eng-
land, clays of grace are allowed on all Notes, whether
they are payable at a certain time after date, or after
i Story on Bills, $ 233 ; Bayley on Bills, ch. 7, § 2, p. 571, (5th edit.
1830) ; Chitty on Bills, ch. 8, p. 360, (8th edit. 1833) ; Id. ch. 10, p. 488,
520; Lindo v. Unsworth, 2 Camp. R. 602 ; Heinecc. de Camb. cap. 4,
§ 41.
2 Pothier, de Change, n. 139 ;, Chitty on Bills, ch. 9, p. 407, 408, (8th
edit. 1833); Heinecc. de Camb. cap. 4, § 13, 14. Heineccius says:
" Quamvis vero id tempus vocari soleat tempus fatale solutionis ; quibus-
dam tamen locis etiam elapso illo tempore, quod in cambio expressum est,
acceptanti dari solent inducias aliquot dierum, e. gr. trium, quatuor, quin-
que, sex, qui vocantur Respit-vel Discretions-Tage, nee non Nach-vel
Ehren-Tage." Heinecc. de Camb. cap. 2, § 14 ; Ante, ^ 215 ; Story on
Bills, § 333, note.
CH. VI.] PRESENTMENT FOE, PAYMENT. 273
sight, or even at sight. 1 As to the latter (Notes paya-
ble at sight,) there has been some diversity of opinion
among the profession, as well as among the elementary
writers. But the doctrine seems now well established,
both in England and America, that days of grace are
allowable on Bills and Notes payable at sight. 2 And
the same rule has been applied, as, in strict analogy, it
should apply to bank post notes, payable after sight ;
for they differ in nothing from ordinary inland Bills of
Exchange. 3 The same rule seems to apply to Bills pay-
i Chitty on Bills, ch. 9, p. 407, (8th edit. 1833) ; Bayley on Bills, ch. 7,
§ 1, p. 244, 245, (5th edit. 1830) ; Bank of Washington v. Triplett, 1 Pe-
ters, R. 30.
2 Chitty on Bills, ch. 9, p. 407, 409, (8th edit. 1833) ; Bayley on Bills,
ch. 7, § 1, p. 249, (5th edit. 1830); 1 Selwyn, Nisi Prius, p. 350, 352,
(10th edit. 1842) ; Dehersu. Harriot, 1 Show. R. 163 ; Coleman v. Sayer,
1 Barnard, B. K. R. 303 ; Story on Bills, § 228, and note.
3 Chitty on Bills, ch. 9, p. 406, 409, (8th edit. 1833) ; Bayley on Bills,
ch. 7, § 1, p. 244, 245, (5th edit. 1830; 1 Bell, Coram. B. 3, ch. 2, § 4,
p. 411, (5th edit.) ; Brown v. Lusk, 4 Yerger, R. 210. How would it be
on a bank post-note, payable at sight ? Mr. Chitty, (p. 409, 410,) on the
subject of. Bills payable at sight, says : " With respect to a Bill payable
at sight, though, from the very language of the instrument, it should seem
that payment ought to be made immediately on presentment, this does not
appear to be so settled. The decisions and the treatises differ on the ques-
tion, whether or not days of grace are allowed. In France, Pothier, enu-
merating the various kinds of Bills, and writing at a time, when days of
grace were allowed in France, states, that a Bill, payable at sight, is pay-
able as soon as the bearer presents it to the drawee ; but, in another part
of his work, it appears that this opinion is founded on the words of a par-
ticular French Ordinance, which cannot extend to Bills payable in this
country. However, he assigns, as a reason, that it would be inconvenient,
if a person who took a Bill at sight, payable in a town, through which he
meant to travel, and the payment of which he stands in need of, for the
purpose of continuing his journey, should be obliged to wait till the expi-
ration of the days of grace after he presented the Bill ; a reason obviously
as applicable to the case of a Bill drawn payable at sight in this, as in any
other country ; and in France, a Bill payable at a fair is due the day be-
fore the last day of such fair. In Spain, days of grace are not allowed,
when Bills are drawn payable at sight, nor, indeed, on a Bill not previously
274 PROMISSORY NOTES. [CH. VI.
able by instalments ; and the days of grace are allowed
on the falling due of each instalment. 1 But Notes,
payable on demand, are immediately payable upon pre-
sentment, without allowing any days of grace. 2 And
the same rule will apply, where no time of payment is
expressed on the face of the Note ; for then, in contem-
plation of law, it is payable on demand. 3
§ 225. In France, under the old law, (for, by the
modern Code, as we have seen, no days of grace are
allowed,) 4 no days of grace were allowed on Bills pay-
able at sight ; and Pothier has given strong reasons in
accepted. Beawes, in his Lex Mercatoria, says, that Bills made payable
here at sight, have no days of grace allowed, although it would be other-
wise in the case of a Bill made payable one day after sight. Kyd, in his
Treatise, expresses the same opinion. But it appears now to be considered
as settled, that days of grace are to be allowed. In Dehers v. Harriot,
I Show. R. 163, it was taken for granted, that days of grace were allow-
able on a Bill payable at sight. The same doctrine was entertained in
Coleman v. Sayer, 1 Barnard. B. K. R. 303. And in another case, where
the question was, whether a Bill, payable at sight, was included under an
exception in the Stamp Act, 23 Geo. III., c. 49, § 4, in favor of Bills pay-
able on demand, the Court held, that it was not; and Buller J., mentioned
a case before Willes, C. J., in London, in which a jury of merchants were
of opinion, that the usual days of grace were to be allowed on Bills paya-
ble at sight. And in Forbes on Bills (p. 142), the same practice is said to
prevail. And Mr. Selwyn, in his Nisi Prius, (p. 339,4th edit.) observes,
that the weight of authority is in favor of such allowance. And they were
allowed on such Bills at Amsterdam." It seems, that in Louisiana, if a
Bill be payable on a fixed day (as on the first day of March), it is payable
on presentment, and no days of grace are allowed. Durnford v. Patterson,
7 Martin, R. 460. This seems to be a peculiar usage, growing out of the
law of Spain.
1 Bridge v. Sherborne, The English Jurist, May 13, 1843, p. 402 ; S.C.
II Mees. & Wels. 374.
3 Bayley on Bills, ch. 7, § 1, p. 233-242, (5th edit. 1830) ; Chitty on
Bills, ch. 9, p. 407-410, (8th edit. 1833) ; Story on Bills, § 231.
3 Chitty on Bills, ch. 9, p. 410, (8th edit. 1833.) See Sutton v. Toomer,
7 Barn. & Cressw. 416.
4 Ante, § 216 ; Story on Bills, § 334, 336 ; Code de Comm. art. 135.
CH. VI.] PEESENTMENT FOR PAYMENT. 275
support of this construction of the language. 1 But upon
all other Bills, to wit : those payable at a usance, or at
a certain number of days after sight or date, the days
of grace were allowable. 2 The like rule prevails in
Spain ; and, probably, also, in most of the countries of
continental Europe. 3
§ 226. Having thus ascertained the time when a Pro-
missory Note becomes due and payable, whether paya-
ble at or after sight, or after date, whether with or
without the allowance of days of grace, and whether
payable after a fixed number of days, or months, or one
or more usances, let us now pass to the consideration of
the time and mode in which payment is to be demanded
on the day of the maturity of the Note. And, in the
first place, within what hours of the day the present-
ment for payment is proper and allowable. The gene-
ral answer to be given to such an inquiry, is, that it
1 Pothier, De Change, n. 12, 172, 198 ; Code de Comm. art. 130 ;
Chitty on Bills, ch. 9, p. 409, (8th edit. 1833) ; Story on Bills, § 228,
and note.
2 Pothier, De Change, n. 13, 139, 172.
3 Chitty on Bills, ch. 9, p. 407, 409, 410, (8th edit. 1833) ; 1 Bell,
Comm. B. 3, ch. 2, § 4, p. 410, 411, (5th edit.) ; Heinecc. de Camb. cap.
2, § 13- 15. Mr. Chitty (p. 407) says ; " In most countries, when a Bill
is payable at one or more usances, or a Bill or Note is payable at a certain
time after date, or after sight, or after demand, it is not payable at the pre-
cise time mentioned in the Bill or Note, but days of grace are allowed.
The days of grace (at Hamburgh called respite days) which are allowed to
the drawee, are so called, because they were formerly mere gratuitous,
and not to be claimed as a right by the person on whom it was incumbent
to pay the Bill, and were dependent on the inclination of the holder. They
still retain the name of grace, though the custom of merchants, recognized
by law, has long reduced them to a certainty, and established a right in the
acceptor to claim them, in most cases of foreign or inland Bills, or Notes
payable at usance, or after date, or after sight, or after a certain event, or
even when expressly made payable on a particular day, or even at sight ;
but not, when expressly made payable on demand." Ante, § 224, note.
276 PROMISSORY NOTES. [CH. VI.
must be within reasonable hours during the day. What
are such reasonable hours, must depend partly upon the
place, either of the business or domicil of the maker,
and partly upon the custom or usage of trade in the
town or city where the Note is payable, and the pre-
sentment is to be made. 1 If there is a known custom
or usage of trade in the town or city, that will furnish
the proper rule to govern the holder ; for then the pre-
sentment must be within the hours limited by such cus-
tom or usage. 2 Thus, for example, the general usage
of banks and bankers is, to limit their business transac-
tions to certain hours, called business hours. If, then,
a Note is payable at a bank or a banker's, it should be
presented at the bank or banker's place of business dur-
ing those hours. 3 On the other hand, if a Note is pay-
able generally, and without any designation of place, in
such a case, (as we shall presently see,) it may be pre-
sented at the usual place of business, or counting-house,
or dwelling-house of the maker for payment. If pre-
sented at his place of business, or counting-house, then
it must be presented within the hours, within which
such place of business, or counting-house, is usually
kept open, according to the custom or usage of the town
or city; or, if there be no such custom or usage, then
within the reasonable hours for transacting business
1 Story on Bills, § 349.
2 Story on Bills, § 236, 349 ; Bayley on Bills, ch. 7, § 1, p. 224, (5th
edit.) ; Chitty on Bills, ch. 7, p. 303, (8th edit.) ; 1 Bell, Comm. B, 3,
ch. 2, § 4, p. 411, 412, (5th edit.)
3 Parker v. Gordon, 7 East, R. 385 ; Elford v. Teed, 1 Maule & Selw.
28 ; Bayley on Bills, ch. 7, § 1, p. 224, 225, (5th edit.) ; Chitty on Bills,
ch. 7, p. 305, (8th edit.) ; Id. ch. 9, p. 421, 422 ; Story on Bills, § 349 ;
Barclay v. Bailey, 2 Camp. R. 527 ; Jameson v. Swinton, 2 Taunt. R.
224; S. C. 2 Camp. R. 373; Garnet v. Woodcock, 6 Maule & Selw. 44;
Whitaker v. Bank of England, 6 Car. & Payne, 700 ; 1 Comp. Mees. &
CH. VI.] PRESENTMENT FOR PAYMENT. 277
there by the maker. 1 If presented at the dwelling-
house or domicil of the maker, then ft must be within
such reasonable hours, as that the family are up, and the
maker may be presumed to be ready to transact busi-
ness there. 2 If, in any of these cases, the holder omits
to perform his proper duty ; if the presentment is made
at unseasonable hours, either too early or too late, at a
bank or banker's, or at the counting-house, or at the
dwelling-house of the maker, and there is no person
there authorized to act, or ready to act for the maker ;
if the presentment is made before the counting-house
is open, or after it is shut, or after the family at the
house have retired to rest, or before they have risen ;
in these, and the like cases, the presentment will be
deemed a mere nullity, and without any legal effect, and
the holder must bear all the consequences of his want of
diligence. These ordinarily are, (as has been already
Rose. 774 ; Church v. Clark, 21 Pick. R. 310. It has been suggested,
that where a Note is payable at a bank, no action lies upon it, even against
the maker, until after the close of the usual bank hours, although a demand
may have been made at an earlier hour after the bank is open, and payment
is refused. See Church v. Clark, 21 Pick. 310. But quaere; for the
case did not involve any such point; and if the Note had been payable
generally, a demand at any reasonable time during that day would have
entitled the holder, if payment was refused, immediately to commence an
action, without waiting until the close of the day. Staples v. Franklin
Bank, 1 Mete. R. 43 ; Church v. Clark, 21 Pick. R. 310 ; Whitwell v.
Brigham, 19 Pick. R. 117. Why should not the like rule apply to a
refusal to pay at the bank, upon presentment within bank hours?
1 Ibid.
2 Chitty on Bills, ch. 7, p. 305, (8th edit.) ; Id. ch. 9, p. 421, 422 ;
Bayley on Bills, ch. 7, § 1, p. 224 - 226, (5th edit.) ; Story on Bills, § 349 ;
Barclay v. Bailey, 2 Camp. R. 527; Wilkins v. Jadis, 2 Barn. & Adolp.
188; Jameson v. Swinton, 2 Taunt. R. 224; S. C. 2 Camp. R. 374;
Bancroft v. Hall, Holt, N. P. R. 476 ; Morgan v. Davison, 1 Stark. R.
114 ; Triggs v. Newnham, 10 Moore, R. 249; Dana v. Sawyer, 22 Maine
R. 244, (9 Shepley.)
PROM. NOTES. 24
278 PROMISSORY NOTES. [CH. VI.
suggested,) that the indorsers are discharged from all
liability on the Tfote, although the maker still remains
liable therefor. 1
§ 227. In the second place, as to the particular
place, at which presentment for payment of a Promis-
sory Note is to be made. According to the commercial
law of England, if a Promissory Note is made payable
at any particular place, as, for example, at a bank, or
a banker's, a presentment should be there made for pay-
ment. 2 Before the statute of 1 and 2 Geo.- 4, ch. 78, a
Bill of Exchange, as well as a Promissory Note, payable
at a bank or banker's, was required to be presented at
the bank or banker's for payment, before the acceptor
or maker was bound to pay the same. 3 That statute
changed the antecedent responsibility of the acceptor of
a Bill of Exchange, by providing that an acceptance
payable at a banker's, or other specified place, without
adding the words, " and not otherwise or elsewhere,"
should be deemed a general acceptance of the Bill to
all intents and purposes, so that no presentment or de-
mand of payment at such banker's, or other specified
place, was thereafter necessary to be made, in order to
charge the acceptor. 4 But the statute did not touch the
i Story on Bills, § 236, 349 ; Thomson on Bills, ch. 6, § 1, p. 420, 424,
(2d edit.)
2 Story on Bills, § 239, and note ; Id. § 355 ; Chitty on Bills, ch. 7,
p. 321, 322, (Sth edit.) ; Id. ch. 9, p. 391, 392 ; Bayley on Bills, ch. 1 ?
1 9, p. 29, 30, (5th edit.) ; Id. ch. 9, § 1, p. 199, 200 ; Id. ch. 7, § 1.
p. 219-222; 1 Bell, Coram. B. 3, ch. 2, § 4, p. 412, 413, (5th edit.) ;
Gibbj;. Mather, 2 Cromp. & Jerv. 254 ; S. C. 8 Bing. R. 214.
s Ibid.
4 Ibid.; Chitty on Bills, ch. 5, p. 172-174, (8th edit.); Id. ch. 7,
p. 321-323; Id. ch. 9, p. 391, 393, 396, 397; Bayley on Bills, ch. 1,
§ 9, p. 29, (5th edit.) ; Id. ch. 6, § 1, p. 199-201 ; Gibb v. Mather,
2 Cromp. & Jerv. 254 ; S. C. 8 Bing. R. 214 ; Fayle v. Bird, 6 Barn. &
CH. VI.] PRESENTMENT FOE PAYMENT. 279
rights of the drawers or indorsers of any such Bill, hut
left them to he governed hy the antecedent general law.
Hence, so far as the drawer and indorsers are concerned,
a due presentment and demand of payment is still ne-
cessary to be made at the banker's, or other specified
place, in order to found any right of action against them. 1
Cressvv. 531 ; 3 Kent, Comm. Lect. 44, p. 97, and note (e,) and Id. p. 99,
note (b,) (5th edit.) ; Story on Bills, $ 355 ; Thomson on Bills, ch. 6, § 2 t
p. 420-428, (2d edit.)
i Gibb v. Mather, 2 Cromp. & Jerv. 254 ; S. C. 8 Bing. R. 214 ; Am-
brose v. Hopwood, 2 Taunt. R. 61. This whole subject was very much
discussed in the House of Lords in the case of Rowe v. Young, 2 Brod.
& Bing. R. 165 ; S. C. 2 Bligh, R. 391. The original action was upon
a Bill of Exchange, by an indorsee against the acceptor of the Bill. The
Bill was dated 20th of December, 1815, drawn by one James Meagher, at
Gosport, upon the acceptor, at Torpoint, requiring him two months after
date to pay to the order of Meagher, £300 value in account ; and the
Bill was accepted " payable at Sir John Perring & Co.'s, bankers, Lon-
don " ; and, at the time when it became due, was dishonored and unpaid.
The original plaintiff recovered judgment ; and in the House of Lords the
error assigned was, that in one count in the declaration it was not averred
that the Bill was ever presented for payment at Sir John Perring & Co.'s.
The opinions of the Judges on this, among other questions, was required
of the House of Lords, and the Judges differing in opinion, delivered their
opinions seriatim. In the House of Lords, the judgment was reversed.
Lord Eldon, in delivering his opinion upon that occasion said : " My Lords,
the writ of error in this case brings before your Lordships the question,
whether it was or was not necessary, in the first count of the declaration,
to allege or state expressly, or to allege or state in substance and effect, so
that it might be collected from the first count of the declaration , that the Bill
had been presented and shown to the plaintiff, either when it became due and
payable, or, before that time, or since the time, at Sir John Perring & Co.'s,
bankers, London ; and that question may be stated in another way, namely,
whether this acceptance, as stated in the first count of the declaration, is
to be taken to be a general acceptance, making the party accepting liable
to pay everywhere ; or, whether there is (what in some cases is called an
expansion of the undertaking, and in other cases is called an engagement
or direction in addition to the general unqualified acceptance to pay) a di-
rection and engagement to pay at Sir John Perring & Co.'s, thrown in for
the convenience of both parties, but which the holder of the Bill is not
bound to attend to unless he chooses , or, on the other hand, whether this,
280 PROMISSORY NOTES. [CH. VI.
The statute does not comprehend Promissory Notes pay-
able at a banker's, or other specified place ; and there-
upon looking at the terms of the declaration, is what is in law called a
qualified acceptance. And, my Lords, undoubtedly, it is very fit this
question should be brought before your Lordships ; because the state of
the law, as actually administered in the Courts, is such, that it would be
infinitely better to settle it in any way, than to permit so controversial a
state to exist any longer. It has been stated at the bar, and there can be
no doubt that it has been there correctly stated, that the Court of King's
Bench has been, of late years, in the habit of holding such an acceptance
as this to be a general acceptance, with what the Judges of that Court
call an expansion, or a direction, or an engagement, which introduces, not
a qualified promise, but a sort of courtesy, a kind of accommodation be-
tween the parties, in addition to the effect of the general acceptance ; to
which accommodation or courtesy, however, they hold, that the holder of
the Bill is not at all bound to attend. On the other hand, it has been
stated to your Lordships, and there can be no doubt of the fact, that the
Court of Common Pleas is in the habit of holding, that such an accept-
ance as this is a qualified acceptance and that the contract of the party is
to pay at the banker's; and of holding it as matter of pleading, that pre-
sentment at the place stipulated must be averred, and that evidence must
be given to sustain that averment. It has been further represented, that,
although in the present state of the law, the principles of law, as applied
to Promissory Notes and Bills of Exchange, are simple enough in common
cases, the Court of King's Bench has held, that if a man promise to pay
at a particular place by a Promissory Note, (at the Workington Bank, for
instance,) the presentment, which is, in point of law, a demand, must be
made there, because the place stands in the body of the Note, and, being
in the body of the Note, it is part of the written contract, which must be
declared upon, as it exists, and proved as declared ; but that, in the case
of Bills of Exchange, the same Court has held, that the place at which
by its acceptance a Bill is made payable is not in the body of the Bill ;
and, not being in the body of the Bill, the Court has taken it for granted,
that it is not to be considered as being in the body of the acceptance, a
conclusion, which it is extremely difficult, I think, to adopt; because it
seems hard to say, that combinations of various kinds may be infused into
the acceptance, (for example, qualification as to time, as to mode of pay-
ment, as to contingencies, upon which the acceptor will pay, and various
other qualifications which will be found in the cases,) which they unques-
tionably may be, notwithstanding the generality of the Bill as drawn, but
that, if the acceptance contain a qualification clearly and sufficiently ex-
pressed as to place, that qualification ought not to be introduced into the
CH. VI.] PRESENTMENT FOE, PAYMENT. 281
fore it is indispensable, in order to charge the maker or
indorsers of a Promissory Note, that a due presentment
acceptance. In addition to being told that the decisions of the Court of
King's Bench upon Bills of Exchange cannot be reconciled with the de-
cision of that Court upon Promissory Notes, your Lordships are told, that
the decisions of that Court upon Bills of Exchange are not all consistent
with each other. It is a little difficult to say, that they are ; but, undoubt-
edly, it may be represented as the opinion of that Court in judgment, that
this species of acceptance is a general acceptance, with that kind of expan-
sion, direction, or engagement, to which I have been alluding. The Court
of Common Pleas being of a different opinion, it is impossible, my Lords,
for any man to feel that he has incumbent upon him the duty of giving the
best opinion which he can form upon a question, on which so many men
of high professional character, and great professional learning have differed,
without giving that opinion with a good deal of diffidence ; but he must
remember, that it his duty to give his opinion, whatever it may be. The
first question is, whether this is a qualified acceptance. Upon that ques-
tion, the twelve judges have given your Lordships their opinion, and a
great majority of them are of opinion that it is a qualified acceptance.
Some of the Judges have given your Lordships their opinion, that it is a
general acceptance, with an expansion, direction, or engagement for the
convenience of one or other of the parties, which, one does not very well
know ; and that the acceptance meant, that if the holder chose to go to Sir
John Perring & Co.'s, he would probably there get payment of the Bill.
Then, another question is this, supposing this to be a qualified acceptance,
was it necessary to aver the presentment in the declaration, and to support
that averment by proof? A great majority of the learned Judges (in-
cluding some of those who thought this a qualified acceptance) say, that it
is not necessary to notice it as such in the declaration, or to prove present-
ment : but, that it must be considered, as matter of defence, and that the
defendant must state himself as ready to pay at the place, and to bring the
money into court, and so bar the action, by proving the truth of that de-
fence. Some of the Judges, to whom I am alluding, (having been most
eminent in special pleading,) deny this proposition, and say, that the
plaintiff must declare upon the contract as it is, that he must make out his
right to sue according to that contract ; and, if that contract engage for
payment at Sir John Perring & Co.'s, he must state in the declaration that
he has demanded payment at Sir John Perring & Co.'s ; in short, their
opinion is, that the plaintiff has no cause of action, unless he have perform-
ed his part of the contract. I think, my Lords, I may venture to state,
upon the cases which I have taken a great deal of pains to search, (for I
hope I have read every case upon the subject,) that a person may, un-
doubtedly, draw a Bill of Exchange, as we are in the habit of making
24*
282 PROMISSORY NOTES. [CH. VI.
and demand of payment should be made at the banker's,
or other specified place. If a due presentment is not
a Promissory Note, payable at a particular place ; the effect is, that the
acceptor of such a Bill has promised to pay at that particular place, and that
the drawer, on default of the acceptor, has promised to pay at that particu-
lar place ; but there seems a great objection made to the doctrine, that, if
a drawer has drawn generally, the acceptor can accept specially. The
question appears to me to be, whether the acceptor has accepted specially ;
and I cannot imagine, if the contract of A. (he being the drawer) be
general, how it is from thence to be reasoned, that I, the acceptor, need
not come under any engagement, unless I choose to come under the
engagement proposed by A., and that I cannot qualify my acceptance, and
say to the holder of the Bill, it is very true the drawer has drawn upon me
and expects me to make myself liable generally : but that is not what
I choose to do ; if you will not take an acceptance from me, by which I can
consult my own convenience, by telling you that I will pay you at a given
place and time, you shall have none at all. Cannot an acceptor accept in
a qualified way ? That he can is clearly established by cases which extend
to almost every species of qualification ; and, unquestionably, if the quali-
fication as to place cannot be adopted by the acceptor, it must be on
account of some circumstance which belongs to the place, and does not
belong to the time or the mode of payment, or any other species of qualifi-
cation whatever. My Lords, I am ready to express my full assent to the
doctrine, that, where a Bill is drawn generally, (considering that as an ad-
dress to the person who is to accept it generally, because it is drawn gen-
erally,) it lies upon the acceptor, who says, that he has accepted specially,
to accept in such terms, that the nature of his contract may be seen from
the terms he has used, and that that may clearly appear to be a qualified
acceptance, which he insists is not a general acceptance. The first ques-
tion, then, here, will be upon the words, whether this is or is not a quali-
fied acceptance. Now, my Lords, I really do not know how it is possible
to say, that this is not a qualified acceptance ; I mean independent of the
cases which have been decided ; because, if a man draw upon me, who
am living in London, and I say, I accept according to the usage and cus-
tom of merchants, payable at my bankers', Child and Co.'s, London, I only
desire to ask, (putting the usages of merchants, and putting the effect of
these cases out of the question for a moment,) whether any man could read ,
an acceptance of mine in these terms, and say that it was, not only an ac-
ceptance of mine, payable at Child's, where those funds would be which
were to pay it, but that it was an acceptance by virtue of which (as is ad-
mitted by those who have argued about the convenience and inconvenience,
and who have looked at the argumentum ab inconvenienti) the holder
of that Bill might arrest me, and hold me to bail in any part of the world.
CH. VI.] PRESENTMENT FOR PAYMENT. 283
so made, the indorsers are discharged from all liability. 1
The maker, indeed, is not so discharged ; but he is in
My Lords, after revolving this question again and again in my mind, with
the full consideration of what has been stated about the practice and con-
trary decisions, I cannot say that it was not the intention of the party, who
thus accepted, to come under an engagement, which may be represented
as an acceptance, to pay the Bill at Sir John Perring & Co.'s, London.
Then-, it is said, that the word ' accepted ' forms the general engagement,
and that the words ' payable at Sir John Perring & Co.'s,' cannot qualify
and cut down the general engagement ; and cases are then cited which
maintain a distinction between words of qualification in the body of a Note,
and words of qualification in the margin or at the foot of a Note ; and
there are cases maintaining the distinction, that if such words be in the
body of the Note, they form part of the contract ; but, if they be at the
foot, or in the margin, they form only a memorandum. I do not mean to
disturb these cases at all, but I do not understand how it is, that from these
cases it is to be inferred, that when I write the words ' accepted, payable
at a given house,' the word ' accepted' is to be taken to express the whole
of my contract, and that, though the sentence is not complete till I write
the whole, the latter part of it is not to be taken as part of the contract,
but as a direction, or expansion, of the engagement. Your Lordships
have heard a great deal of this argumentum ab inconvenienti, but I cannot
help thinking, that this is a mode of reasoning, which is not quite analo-
gous to our usual modes of reasoning in the courts below on the question
of what men are likely to do or not to do. The case is put in this way :
Supposing Bills were drawn on each of the twelve Judges of England,
just before they left town on the circuit, and they had accepted, the Bills,
payable at their respective bankers', if it be law that such an acceptance
renders them liable to pay any where, the holders of those Bills might un-
doubtedly, if they pleased, arrest the Judges at their respective circuit
towns, a little to the inconvenience of the administration of justice. It is
said, no man w r ould think of arresting the Judges. My Lords, I hope no-
body would think of arresting the Judges ; but I can feel for mercantile
men, just as well as I can feel for Judges, and I can feel for men exposed
to the inconvenience of demands upon them, which are to be regulated, not
i Bayley on Bills, ch. 7, § 1, p. 219-222, (5th edit.) ; Chitty on Bills,
ch. 9, p. 396, 397, (8th edit.) ; Sanderson v. Bowes, 14 East, R. 500 ; Roche
v. Campbell, 3 Camp. R. 247 ; Gibb v. Mather, 2 Cromp. & Jerv. 254;
S. C. 8 Bing. R. 214; Dickinson v. Bowes, 16 East, R. 110 ; Howe v.
Bowes, 16 East, R. 112 ; S. C. in Error, 5 Taunt. R. 30 ; Trecothick v.
Edwin, 1 Stark. R. 468 ; Emblen v. DartneU, 12 Mees. & Wels. R.
830.
284 PROMISSORY NOTES. [CH. VI.
no default, and is under no obligation to pay the Note,
until presentment and demand has been actually made
by their contracts, but by a construction being given to their contracts,
which they meant should be never given to them. My Lords, in this very
case, (and it seems not to have been very much considered,) the acceptor
is at Torpoint ; and, having his money in London, where it is usually de-
manded of him, he says, If you make your demand upon me, here, I can-
not pay you ; but I have at Child's or Drummond's shop money to pay
you, and you will be sure to find it there. Is it no matter of inconvenience
that such a man may, from caprice, if you please, (and we have heard of
such things as men through caprice, refusing a tender of Bank of England
notes, and so forth,) be obliged to bring money from London? or is he to
keep money in London and at Torpoint too, to answer the exigency of the
demand, as it may happen to be made at the one place or the other 1 My
Lords, there is another consideration, which does not appear to me to have
been so much attended to as it might have been, namely, that, if I promise
to pay at my banker's in London, and a man calls upon me to pay in North-
umberland, it is not the same thing ; for, looking at the demand as likely
to be made at Child's shop, I send the money there, but if I am to pay in
Northumberland, there must be the exchange, and remittance, and so on,
backwards and forwards. But take the case of a gentleman leaving Cal-
cutta, and coming to reside in London, who gives a Bill of Exchange in
Calcutta, to be paid there six months after he departs ; he arrives in Lon-
don, not bringing a shilling home to pay that Bill ; he finds that Bill sent
home by another ship, and he is arrested the moment he lands. Is the
sum, which he is obliged to pay here, the same with that which he would
have paid there, and for paying which he had made preparation 1 Cer-
tainly not. It appears to me, therefore, that even with respect to the
value of what is to be paid, there is a most essential difference in the con-
tract. Then, it is said, this will be extremely inconvenient ; and it was with
a view to see what the balance of convenience and inconvenience would be
in that part of the case, that I took the liberty, with your Lordship's per-
mission, to put the third and fourth questions to the Judges. It is said this
may vary the right of the holder, in respect of the drawer, unless he, the
holder, give notice, and so forth, to keep his liability alive. My Lords,
the answer to that, as it seems to me, is this, that if you once admit that a
man may accept specially, it is the consequence of the law, that these diffi-
culties arise ; if you will say, that no man shall accept specially a Bill
which is drawn generally, that settles the question ; but, if you say that
the law is, though a man draw generally, the drawee may accept specially,
it is the consequence of the law which imposes duties upon the holder
to give notice to the drawer, to keep alive the drawer's liability, and that
inconvenience certainly is not quite so large as if the acceptor refused to
OH. VI.] PRESENTMENT FOR PAYMENT. 285
at the banker's, or other specified place ; l and if he has
suffered any loss or injury by the want of a due pre-
accept at all. Then, it is said, that this will impose great difficulty to the
indorsee, that a person sometimes beeomes an indorsee before, and some-
times after acceptance ; if he become an indorsee before, he may find a
special acceptance when he expected to have a general acceptance ; but
then, when the Bill is indorsed to him unaccepted, he does not know whe-
ther it will ever be accepted ; and, if he do not know that it will be ever
accepted, he cannot tell whether it be accepted specially. He knows,
therefore, at the time of taking that Bill by indorsement, that he is to look
out for such an acceptor as he can find. What is there inconsistent with
the rule of law or convenience in this? I cannot see any thing. It would
be a very unnecessary fatigue to your Lordships to go through the whole
of this case from the beginning to the end. It does appear to me, that no
one can say, the case is settled in law ; you must therefore go back to
principle. If you go back to principle, and admit that a man may give a
qualified acceptance, the question is, whether this is a qualified acceptance,
ay or no. If it be a qualified acceptance, — if it be an acceptance where
the contract of the party is to pay at Sir John Perring & Co.'s, — then I
state it to be in pleading settled matter, that you must declare according
to the contract, and that you must aver all that the nature of that contract
makes necessary. If that be so, if it be a special contract, and if it be ne-
cessary for you to aver all which the contract contains, how can it be said,
that it is not to be shown in the nature of the demand, but that it must be
left to be shown in the defence? It appears to me, that this position can-
not be maintained. My Lords, with respect to the cases of bonds which
have been cited, they differ, altogether, from a contract of this nature.
You bring your action upon a bond for the penalty; it must, therefore, be
matter of defence to say, that the bond would have been paid at a particular
place ; for that will be in the condition of the bond ; when you pray oyer
of the bond, you defend yourself by saying, that you have performed that
condition, and that, therefore, you are to be excused from the payment of
the debt. These cases, therefore, have no application to the case before
your Lordships. There is another set of cases, in which it is said, that, if
there be an antecedent debt, the acceptance must be taken to be general.
Between the acceptor and holder there is seldom an antecedent debt ;
there may bean antecedent debt between the drawer and acceptor of the Bill ;
I wish that there had been an antecedent debt in all cases, for accommoda-
tion Bills have been the ruin of many ; but, with respect to the acceptor, it
is not true, that he must be antecedently the debtor ; and all the cases
1 Chitty on Bills, ch. 5, p. 174, (8th edit.) ; Turner v. Hayden,4 Barn,
& Cressw. 1.
286 PROMISSORY NOTES. [CH. VI.
sentnient, to the extent of that loss or injury he will be
discharged as against the holder. 1
§ 228. In America, a doctrine somewhat different pre-
vails, if not universally, at least to a great extent. It
was probably in the first instance adopted from the
supposed tendency of the English authorities to the
same result ; and there certainly was much conflict in
the authorities, until the doctrine was put at rest by the
final decision in the House of Lords, a decision, which
with respect to qualified acceptance show that ; for a man may accept to
pay half the bill in money, and half in goods ; he may accept to pay out of
the produce of a cargo consigned to him when that cargo comes to this
country. When your Lordships look to the situation of a consignee, you
will find that his acceptance is always qualified. A ship's cargo comes from
the West Indies, and the Bill with it ; the acceptance of such Bill will be, of
course, an acceptance to pay in London. In every view of this case, I take
the liberty to state to your Lordships as my opinion, (certainly stating it
with infinite diffidence, as I ought, recollecting that I am obliged to differ
in opinion from those whose judgments no man can respect more than I do,)
that this is a contract to pay at Sir John Perring and Co.'s, which is not
the contract stated' in the first count of the declaration; for that count
wants that averment ; and the consequence is, that the judgment of the
Court of King's Bench must be reversed. I do not think that it will be of
the least consequence to the commercial world ; for it will be so easy
to adopt forms of words which leave no doubt as to what is meant, that I
am perfectly sure, if there were any inconvenience arising from the de-
cision, if your Lordships think proper to make it, that those who do not
wish to have the inconvenience have nothing to do but to use two or three
words, which will guard them from it. But the question is, What is the
law of this day upon this contract, as set forth in this first count of this de-
claration 1 I have already stated to your Lordships in a few words what
my opinion is, and I sincerely believe it to be founded in clear principles of
law ; although, when I state that I do believe it to be so founded, I cannot
but recollect, (and I do that with infinite respect,) that I am differing in
opinion with those, whose opinion is infinitely superior to mine. But my
duty is not to state their opinion, but to express my own." See, also
Gibb v. Mather, 2 Cromp. & Jerv. 254 ; S. C. Bing. R. 214. In Indiana
the English doctrine is adopted ; Palmer v. Hughes, 1 Black. R. 329.
1 Rhodes v. Gent, 5 Barn. & Aid. 244 ; Turner v. Hayden, 4 Barn. &
Cressw- 1.
CH. VI.] PRESENTMENT FOR PAYMENT. 287
seems founded upon the most solid principles, and to be
supported by the most enlarged public policy, as to the
rights and duties of parties. The received doctrine in
America seems to be this, that as to the acceptor of a
Bill of Exchange, and the maker of a Promissory Note,
payable at a bank, or other specified place, the same
rule applies, that is, that no presentment or demand of
payment need be made at the specified place, on the
day when the Bill or Note becomes due, or afterwards,
in order to maintain a suit against the acceptor, or
maker ; and of course, that there need be no averment
in the declaration in any suit brought thereon, or any
proof at the trial, of any such presentment or demand.
But that the omission or neglect is a matter of defence
on the part of the acceptor or maker. If the acceptor
or maker had funds at the appointed place, at the time,
to pay the Bill or Note, and it was not duly presented,
he will, in the suit, be exonerated, not, indeed, from the
payment of the principal sum, but from the payment
of all damages and costs in that suit. If, by such omis-
sion or neglect of presentment and demand, he has sus-
tained any loss or injury, as if the Bill or Note were
payable at a bank, and the acceptor or maker had funds
there at the time, which have been lost by the failure of
the bank, then, and in such case, the acceptor or maker
will be exonerated from liability to the extent of the
loss or injury so sustained. 1
1 The doctrine maintained in the American Courts is fully expounded in
the case of Wallace v. M'Connell, 13 Peters, Sup. Ct. R. 36. Mr. Jus-
tice Thompson, on that occasion, in delivering the opinion of the Supreme
Court of the United States, after stating the facts, (the action being
brought on a Promissory Note against the maker, by the payee, the Note
being payable at the Bank of the United States, at Nashville, and the de-
claration containing no allegation of any presentment or demand at the
288 PROMISSORY NOTES. [CH. VI.
§ 229. The ground, upon which the American doc-
trine is placed, is, that the acceptor or maker is the
Bank,) said: " The question raised, as to the sufficiency of the declara-
tion in a case where the suit is by the payee against the maker of a Pro-
missory Note, never has received the direct decision of this Court. In the
case of the Bank of the United States v. Smith, 11 Wheat. 172, the Note
upon which the action was founded was made payable at the office of dis-
count and deposite of the Bank of the United States, in the city of Wash-
ington ; and the suit was against the indorser, and the question turned
upon the sufficiency of the averment in the declaration of a demand of
payment of the maker. And the Court said, when, in the body of a Note,
the place of payment is designated, the indorser has a right to presume
that the maker has provided funds at such place to pay the Note ; and has
a right to require the holder to apply at such place for payment. In the
opinion delivered in that case, the question now presented in the case before
us is stated; and it is said, whether, where the suit is against the maker
of a Promissory Note, or the acceptor of a Bill of Exchange, payable at a
particular place, it is necessary to aver a demand of payment at such place,
and upon the trial to prove such demand, is a question upon which con-
flicting opinions have been entertained in the Courts in Westminster Hall.
But that the question in such case may, perhaps, be considered at rest in
England, by the decision of the late case of Rowe v. Young, 2 Brod. &
Bing. 165, in the House of Lords ; where it was held, that if a Bill of
Exchange be accepted, payable at a particular place, the declaration on
such Bill against the acceptor, must aver presentment at that place, and
the averment must be proved. But it is there said, a contrary opinion has
been entertained by Courts in this country; that a demand on the maker
of a Note, or the acceptor of a Bill, payable at a specified place, need not
be averred in the declaration, or proved on the trial ; that it is not a condi-
tion precedent to the plaintiff's right of recovery. As matter of practice,
application will generally be made at the place appointed ; if it is believed,
that funds have been there placed to meet the Note or Bill. But if the
maker or acceptor has sustained any loss by the omission of the holder to
make such application for payment, at the place appointed, it is matter of
defence to set up by plea and proof. But it is added, as this question does
not necessarily arise in this case, we do not mean to be understood as ex-
pressing any decided opinion upon it, although we are strongly inclined to
think, that as against the -maker of a Note, or the acceptor of a Bill, no
everment or proof of a demand of payment at the place designated would
be necessary. The question now before the Court cannot, certainly, be
considered as decided by the case of the Bank of the United States v.
Smith. But it cannot be viewed as the mere obiter opinion of the judge
who delivered the judgment of the Court. The attention of the Court was
CH. VI.] PRESENTMENT FOR PAYMENT. 289
promissory debtor, and the debt is not as to him dis-
charged by the omission or neglect to demand payment
drawn to the question now before the Court ; and the remarks made upon
it, and the authorities referred to, show that this Court was fully apprized
of the conflicting opinions of the English Courts on the question ; and that
opinions contrary to that of the House of Lords, in the case of Rowe v.
Young, had been entertained by some of the Courts in this country ; and
under this view of the question, the Court say, they are strongly inclined
to adopt the American decisions. As the precise question is now pre-
sented by this record, it becomes necessary to dispose of it. It is not
deemed necessary to go into a critical examination of the English authori-
ties upon this point ; a reference to the case in the House of Lords,
which was decided in the year 1820, shows the great diversity of opinion
entertained by the. English judges upon this question. It was, however,
decided, that if a Bill of Exchange is accepted, payable at a particular
place, the declaration, in an action on such Bill against the acceptor, must
aver presentment at that place, and the averment must be proved. The
Lord Chancellor, in stating the question, said this was a very fit question
to be brought before the House of Lords, because the state of the law,
as actually administered in the Courts, is such, that it would be infinitely
better to settle it in any way than to permit so controversial a state to
exist any longer. That the Court of King's Bench has been of late
years in the habit of holding, that such an acceptance as this is a gen-
eral acceptance ; and that it is not necessary to notice it as such in the
declaration, or to prove presentment, but that it must be considered as
matter of defence ; and that the defendant must state himself ready to
pay at the place, and bring the money into court, and so bar the action
by proving the truth of that defence. On the contrary, the Court of
Common Pleas was in the habit of holding, that an acceptance like this
was a qualified acceptance, and that the contract of the acceptor was to
pay at the place ; and that, as matter of pleading, a presentment at the
place stipulated must be averred, and that evidence must be given to sus-
tain that averment ; and that the holder of the Bill has no cause of action
unless such demand has been made. In that case, the opinion of the
twelve judges was taken and laid before the House of Lords, and will be
found reported in an appendix in the report of the case of Rowe v. Young, 2
Brod. & Bing. 180. In which opinions all the cases are referred to in
which the question had been drawn into discussion ; and the result appears
to have been, that eight judges out of the twelve sustained the doctrine of
the King's Bench on this question ; notwithstanding which, the judgment
was reversed. It is fairly to be inferred from an act of parliament passed
immediately thereafter, 1 and 2 Geo. 4, ch. 78, that this decision was not
satisfactory. By that act it is declared, that < after the 1st of August,
prom, notes. 25
290 PROMISSORY NOTES. [CH. VI.
when the debt became due, at the place where it was
payable. Assuming this to be true, it by no means fol-
1821, if any person shall accept a Bill of Exchange, payable at the house
of a banker, or other place, without further expression in his acceptance,
such acceptance shall be deemed and taken to be, to all intents and pur-
poses, a general acceptance of such Bill. But if the acceptor shall, in his
acceptance, express, that he accepts the Bill payable at a banker's house,
or other place only, and not otherwise, or elsewhere, such acceptance
shall be a qualified acceptance of such Bill ; and the acceptor shall not be
liable to pay the Bill, except in default of payment, when such payment
shall have been first duly demanded, at such banker's house or other
place.' Bayley on Bills, 200, note. In most of the cases which have
arisen in the English Courts, the suit has been against the acceptor of the
Bill ; and in some cases a distinction would seem to be made between such
a case, and that of a Note, when the action is against the maker, and the
designated place is in the body of the Note. But there can be no solid
grounds upon which such a distinction can rest. The acceptor of a Bill
stands in the same relation to the holder, as the maker of a Note does to
the payee ; and the acceptor is the principal debtor, in the case of a Bill,
precisely like the maker of a Note. The liability of the acceptor grows
out of, and is to be governed by the terms of his acceptance, and the
liability of the maker of a Note grows out of, and is to be governed by the
terms of his Note ; and the place of payment can be of no more importance
in the one case than in the other. And in some of the cases where the
point was made, the action was against the maker of a Promissory Note,
and the place of payment designated in the body of the Note. The case
of Nicholls v. Bowes, 2 Camp. 498, was one of that description, decided
in the year 1810 ; and it was contended, on the trial, that the plaintiff was
bound to show that the Note was presented at the banking-house where it
was made payable. But Lord Ellenborough, before whom the cause was
tried, not only decided, that no such proof was necessary, but would not
suffer such evidence to be given ; although the counsel for the plaintiff
said he had a witness in court, to prove the Note was presented at the
banker's the day it became due ; his Lordship alleging, that he was afraid
to admit such evidence, lest doubts should arise as to its necessity. And
in the case of Wild v. Rennards, 1 Camp. 425, note, Mr. Justice Bayley,
in the year 1809, ruled, that if a Promissory Note is made payable at a par-
ticular place, in an action against the maker, there is no necessity for
proving, that it was presented there for payment. The case of Sanderson
v. Bowes, 14 East, 500, decided in the King's Bench in the year 1811, is
sometimes referred to as containing a different rule of construction of the
same words when used in the body of a Promissory Note, from that which
is given to them when used in the acceptance of a Bill of Exchange. But
CH. VI.] PRESENTMENT FOR PAYMENT. 291
lows, that the acceptor or maker is in default, until a
demand of payment has been made at the place of pay-
it may be well questioned, whether this use warrants any such conclusion.
That was an action on a Promissory Note by the bearer against the maker.
The Note, as set out in the declaration, was a promise to pay on demand,
at a specified place, and there was no averment that a demand of payment
had been made at the place designated. To which declaration the defend-
ant demurred ; and the counsel in support of the demurrer referred to cases
where the rule had been applied to acceptances on Bills of Exchange ; but
contended, that the rule did not apply to a Promissory Note, when the
place is designated in the body of the Note. Lord Ellenborough, in the
course of the argument, in answer to some cases referred to by counsel,
observed ; those are cases where money is to be paid, or something to be done
at a particular time as well as place, therefore the party (defendant) may
readily make an averment, that he was ready at the time and place to pay
and that the other party was not ready to receive it ; but here the time of
payment depends entirely on the pleasure of the holder of the Note. It is
true, Lord Ellenborough did not seem to place his opinion, in the ultimate
decision of the cause, upon this ground. But the other judges did not
allude to the distinction taken at the bar, between that case and the accept-
ance of a Bill in like terms ; but place their opinions upon the terms of the
Note itself, being a promise to pay on demand at a particular place. And
there is certainly a manifest distinction between a promise to pay on de-
mand at a given place, and a promise to pay at a fixed time at such place.
And it is hardly to be presumed, that Lord Ellenborough intended to rest
his judgment upon a distinction between a Promissory Note and a Bill of
Exchange, as both he and Mr. Justice Bayley had, a very short time before,
in the cases of Nicholls v. Bowes, and Wild v. Rennards, above referred
to, applied the same rule of construction to Promissory Notes, where the
promise was contained in the body of the Note. Where the promise is to
pay on demand at a particular place, there is no cause of action until the
demand is made ; and the maker of the Note cannot discharge himself by
an offer of payment, the Note not being due until demanded. Thus we see
that until the late decision in the House of Lords, in the case of Rowe v.
Young, and the act of parliament passed soon thereafter, this question was
in a very unsettled state in the English Courts ; and without undertaking
to decide between those conflicting opinions, it may be well to look at the
light in which this question has been viewed in the Courts in this country.
This question came before the Supreme Court of the State of New York,
in the year 1809, in the case of Foden and Slater v. Sharp, 4 Johns. R.
183 ; and the Court said, the holder of a Bill of Exchange need not show
a demand of payment of the acceptor, any more than of the maker of a
Note.' It is the business of the acceptor to show that he was ready at the
292 PROMISSORY NOTES. [CH. VI.
ment ; for the terms of his contract import an express
condition, that he will pay upon clue presentment, at
day and place appointed, but that no one came to receive the money ; and
that he was always ready afterwards to pay. This case shows that the
acceptor of a Bill, and the maker of a Note, were considered as standing
on the same footing with respect to a demand of payment at the place desig-
nated. And in the case of Wolcott v. Van Santvoord, 17 Johns. R. 248,
which came before the same court in the year 1819, the same question
arose. The action was against the acceptor of a Bill, payable five months
after date at the Bank of Utica, and the declaration contained no averment
of a demand at the Bank of Utica ; and upon a demurrer to the declaration,
the Court gave judgment for the plaintiff. Chief Justice Spencer, in
delivering the opinion of the Court, observed that the question had been
already decided in the case of Foden v. Sharp ; but considering the great
diversity of opinion among the judges in the English Courts on the ques-
tion, he took occasion critically to review the cases which had come before
those Courts, and shows very satisfactorily, that the weight of authority is
in conformity to that decision, and the demurrer was accordingly over-
ruled ; and the law in that State for the last thirty years has been con-
sidered as settled upon this point. And although the action was against
the acceptor of a Bill of Exchange, it is very evident that this circumstance
had no influence upon the decision ; for the Court say, that, in this respect
the acceptor stands in the same relation to the payee, as the maker of a
Note does to the indorsee. He is the principal, and not a collateral
debtor. And in the case of Caldwell v. Cassidy, 8 Cowen, 271, decided
in the same Court in the year 1828, the suit was upon a Promissory Note,
payable sixty days after date at the Franklin Bank in New York ; and the
Note had not been presented or payment demanded at the bank ; the
Court said, this case has been already decided by this Court in the case of
Wolcott v. Van Santvoord. And after noticing some of the cases in the
English Courts, and alluding to the confusion that seemed to exist there
upon the question, they add : that whatever be the rule in other Courts,
the rule in this Court must be considered settled, that where a Promissory
Note is made payable at a particular place on a day certain, the holder of
the Note is not bound to make a demand at the time and place by way of a
condition precedent to the bringing an action against the maker. But, if
the maker was ready to pay at the time and place, he may plead it, as he
would plead a tender in bar of damages and costs, by bringing the money
into court. It is not deemed necessary to notice very much at length the
various cases that have arisen in the American Courts upon this question ;
but barely to refer to such as have fallen under the observation of the
Court, and we briefly state the point and decision thereupon, and the result
will show a uniform course of adjudication, that in actions on Promissory
CH. VI.] PRESENTMENT FOR PAYMENT. 293
that place, and not that he will pay upon demand else-
where ; and the omission or neglect of duty, on the part
Notes against the maker, or on Bills of Exchange, where the suit is
against the maker in the one case, and acceptor in the other, and the Note
or Bill made payable at a specified time and place, it is not necessary to
aver in the declaration, or prove on the trial, that a demand of payment
was made in order to maintain the action. But, that, if the maker or
acceptor was at the place at the time designated, and was ready and offered
to pay the money, it was matter of defence to be pleaded and proved on his
part. The case of Watkins v. Crouch & Co., in the Court of Appeals of
Virginia, 5 Leigh, 522, was a suit against the maker and indorser, jointly,
as is the course in that State upon a Promissory Note like the one in suit.
The Note was made payable at a specified time, at the Farmers' Bank,
at Richmond, and the Court of Appeals, in the year 1834, decided, that
it was not necessary to aver and prove a presentation at the bank, and
demand of payment, in order to entitle the plaintiff to recover against
the maker ; but that it was necessary in order to entitle him to recover
against the indorser ; and the President of the Court went into a very
elaborate consideration of the decisions of the English Courts upon the
question ; and to show, that, upon common law principles, applicable to
bonds, Notes, and other contracts for the payment of money, no previous
demand was necessary in order to sustain the action, but that a tender
and readiness to pay must come by way of defence from the defendant ;
and that looking upon the Note as commercial paper, the principles of
the Common Law were clearly against the necessity of such demand and
proof, where the time and place were specified, though it would be other-
wise where the place, but not the time, was specified ; a demand in such
case ouo-ht to be made ; and he examined the case of Sanderson v. Bowes,
to show that it turned upon that distinction, the Note being payable on
demand at a specified place. The same doctrine was held by the Court
of Appeals of Maryland, in the case of Bowie v. Duvall, 1 Gill & John-
son, 175 ; and the New York cases, as well as that of the Bank of the
United States v. Smith, 11 Wheat. 171, are cited with approbation, and
fully adopted ; and the Court put the case upon the broad ground, that
when the suit is against the maker of a Promissory Note, payable at a
specified time and place, no demand is necessary to be averred, upon the
principle that the money to be paid is a debt from the defendant, that it is
due generally and universally, and will continue due, though there be a
neglect on the part of the creditor to attend at the time and place to receive
or demand it. That it is matter of defence on the part of the defendant to
show that he was in attendance to pay, but that the plaintiff was not there
to receive it ; which defence generally will be in bar of damages only,
and not in bar of the debt. The case of Ruggles v. Patten, 8 Mass. R.
25 *
294 PROMISSORY NOTES. [CH. VI.
of the holder, to make presentment at that place, ought
not to change the nature or character of the obligations
480, sanctions the same rule of construction. The action was on a Pro-
missory Note for the payment of money, at a day and place specified ; and
the defendant pleaded, that he was present at the time and place, and ready
and willing to pay according to the tenor of his promises, in the second
count of the declaration mentioned, and avers, that the plaintiff was not
then ready or present at the bank to receive payment, and did not demand
the same of the defendant, as the plaintiff in his declaration had alleged ;
the Court said this was an immaterial issue, and no bar to an action or pro-
mise to pay money. So, also, in the State of New Jersey the same rule
is adopted. In the case of Weed v. Houten, 4 Halst. N. J. R. 189, the
Chief Justice says : 'The question is, whether in an action by the payee
of a Promissory Note, payable at a particular place and not on demand,
but at time, it is necessary to aver a presentment of the Note and demand
of payment by the holder at that place, at the maturity of the Note. And
upon this question he says, I have no hesitation in expressing my entire
concurrence in the American decisions, so far as is necessary for the pre-
sent occasion ; that a special averment of presentment at the place is not
necessary to the validity of the declaration, nor is proof of it necessa^
upon the trial. This rule, I am satisfied, is most conformable to sound
reason, most conducive to public convenience, best supported by the gene-
ral principles and doctrines of the law, and most assimilated to the deci-
sions, which bear analogy more or less directly to the subject.' The same
rule has been fully established by the Supreme Court of Tennessee, in the
cases of M'Nairy v. Bell, 1 Yerger, R. 502, and Mulherrin v. Hannum,
2 Yerger, R. 81, and the rule sustained and enforced upon the same prin-
ciples and course of reasoning upon which the other cases referred to have
been placed. And no case, in an American Court, has fallen under our
notice, where a contrary doctrine has been asserted and maintained. And
it is to be observed, that most of the cases which have arisen in this coun-
try, where this question has been drawn into discussion, were upon Pro-
missory Notes, where the place of payment was, of course, in the body of
the Note. After such a uniform course of decisions for at least thirty
years, it would be inexpedient to change the rule, even if the grounds upon
which it was originally established might be questionable; which, how-
ever, we do not mean to intimate. It is of the utmost importance, that
all rules relating to commercial law should be stable and uniform. They
are adopted for practical purposes, to regulate the course of business in
commercial transactions ; and the rule here established is well calculated
for the convenience and safety of all parties. The place of payment in a
Promissory Note, or in an acceptance of a Bill of Exchange, is always
matter of arrangement between the parties for their mutual accommodation
CH. VI.]
PRESENTMENT FOR PAYMENT. 295
of the acceptor or maker. Now the right to bring an
action presupposes a default on the part of the acceptor
and may be stipulated in any manner, that may best suit their conven-
ience. And when a Note or Bill is made payable at a bank, as is gene-
rally the case, it is well known, that, according to the usual course of bu-
siness, the Note or Bill is lodged at the bank for collection ; and, if the
maker or acceptor calls to take it up when it falls due, it will be delivered
to him, and the business is closed. But should he not find his Note or
Bill at the Bank, he can deposit his money to meet the Note when pre-
sented, and should he be afterwards prosecuted, he would be exonerated
from all costs and damages, upon proving such tender and deposit.
Or should the Note or Bill be made payable at some place other than a
bank, and no deposit could be made, or he should choose to retain his
money in his own possession, an offer to pay at the time and place would
protect him against interest and costs, on bringing the money into court ;
so, that no practical inconvenience or hazard can result from the establish-
ment of this rule, to the maker or acceptor. But, on the other hand,
if a presentment of the Note and demand of payment at the time and
place are indispensable to the right of action, the holder might hazard the
entire loss of his whole debt." See also, Hart v. Green, 8 Verm. R.
191, S. P. It is by no means a legitimate consequence of the English
doctrine, (as suggested by the learned Judge,) that, unless presentment
is made at the time and place, the holder would hazard the entire loss of
his whole debt ; for the English doctrine does not require that he should
demand payment at the place, on the very day on which the Note is due,
to charge the maker. It will be sufficient, if at any future time he makes
a demand at the place, to charge the maker, unless, indeed, the maker
has, by such neglect of the holder, suffered any loss, and, if he has, in
all reason and justice the holder ought to bear it. It may not be im-
proper for me to add, that being a Judge of the Supreme Court of the
United States, when both the case of United States Bank v. Smith,
11 Wheat. R. 172, and the case of Wallace v. M'Connell, 13 Peters, R.
136, were decided, I was not present at the argument of the former ; and
in the latter case, I dissented from the opinion of the Court, although my
dissent was not expressed in open court. See also, the learned note of
Mr. Chancellor Kent, in his Commentaries, (3 Kent, Comm. Lect. 44,
p. 97, note, e,) 5th edit.) ; Id. p. 99, note b,) where the principal American
authorities on each side of the question are cited. The learned commenta-
tor holds the English rule to be the true one, and adds : " This is the plain
sense of the contract, and the words ' accepted, payable at a given place,'
are equivalent to an exclusion of a demand elsewhere." Story on Bills,
§ 356. In Louisiana it is the settled rule, that presentment at the place
where a Note is payable, is indispensable to charge the maker, and a for-
296 PROMISSORY NOTES. [CH. VI.
or maker ; and it may, after all, make a great difference
to him, not only in point of convenience, but in point
of loss by exchange, as well as of expense, -whether, if
he agrees to pay the money in Mobile, or in New Or-
leans, he may be required, without any default on his
own part, notwithstanding he has funds there, to pay
the same money in New York or in Boston. 1 He may
well say : Non in hcsc fcedera veni.
§ 230. But, although the English and American au-
thorities are not in harmony with each other on the
question, whether a presentment and demand of pay-
ment should be made at the bank, or other place, where
a Promissory Note or Bill of Exchange is made paya-
ble, before an action can be brought thereon against the
maker or acceptor ; yet they are entirely in coincidence
with each other on the point that it is indispensable, in
order to charge the indorser or the drawer, that a pre-
sentment for payment should be made, not only at the
place, but also on the very day of the maturity of the
Note or Bill, otherwise the indorser or drawer will be
absolutely discharged. 2 The reason is, that the uncler-
tiori to charge the indorser. Hart v. Long, 1 Rob. Louis. R. 83 ; Still-
well v. Robb, 1 Rob. Louis. R. 311; Wood v. Mullen, 3 Rob. Louis. R. 395.
In Armistead v. Armistead, 10 Leigh, R. 512, the Court of Appeals of
Virginia disapproved of the English doctrine and sustained the American.
[See also, Woodbury, J. in Brown v. Noyes, 2 Woodbury & Minot, R.
84.] See also, North Bank v. Abbott, 13 Pick. R. 465 ; Payson v. Whit-
comb, 15 Pick. R. 212; Church v. Clark, 21 Pick. R. 310; Carley v.
Vance, 17 Mass. R. 389; Ruggles v. Patten, 8 Mass. R. 480 ; Mellon v.
Croghan, 15 Martin, R. 423 ; Smith v. Robinson, 2 Miller, Louis. R. 405 ;
Palmer v. Hughes, 1 Black. Ind. R. 328 ; Gale v. Kemper, 10 Louis. R.
208 ; Warren v. Allnutt, 12 Louis. R. 454 ; Thompson v. Cook, 2 McLean,
R. 125; Ogden v. Dobbin, 2 Hall, N. Y. R. 112; Picquet v. Curtis,
1 Sumner, R. 478.
1 Ibid. See Lord Eldon's judgment in Rowe v. Young, 2 Brod. &
Bing. R. 165; S. C. 2 Bligh, R. 391.
2 Chitty on Bills, ch. 5, p. 172, 173, (8th edit.) ; Id. ch. 7, p. 321 - 323 ;
CH. VI.] PRESENTMENT FOR PAYMENT. 297
taking of the indorser and drawer is conditional, and
consequently, unless there be a strict compliance with
the condition, no right can attach against the indorser,
or the drawer. 1 Thus, a different rule is applied as to
the obligations of the holder to make presentment and
demand of payment in respect to the drawer or indorser
from that which applies to the maker or acceptor. And
yet it would seem that the contract on the part of the
maker and acceptor naturally imported that he would
pay at the place agreed on, and not elsewhere, and
therefore to make it the duty of the holder first to apply
there for payment, before he could charge the maker or
acceptor with any default. But the time of payment
seems in this respect susceptible, as to the maker and
acceptor, of a different interpretation from the place of
payment. The money is treated as primarily the debt
of the maker or acceptor ; and yet he cannot be called
upon to pay it before the day when it becomes due ;
and there seems no reason to say, that an omission to
demand payment of the debt on that very day absolves
him from all obligation to pay the money at any future
time, any more than it would absolve him from the pay-
ment of any other debt 2 It is, indeed, by the Common
Id. ch. 9, p. 391 -400 ; Bayley on Bills, ch. ], § 9, p. 29, 80, (5th edit.) ;
Id. ch. 7, § 1, p. 219-223 ; Gibb v. Mather, 2 Cromp. & Jerv. R. 254;
S. C. 8 Bing. R. 214 ; United States Bank v. Smith, 11 Wheat. R. 171 ;
Wallace v. M'Connell, 13 Peters, R. 136; Woodbridge v. Brigham,
13 Mass. R. 556; Thomson on Bills, ch. 6, § 2, p. 420-424, (2d edit.) ;
Shaw v. Reed, 12 Pick. R. 132 ; North Bank v. Abbot, 13 Pick. R. 465.
i Ibid. f
9 Chitty on Bills, ch. 9, p. 391, 392, (8th edit.) Mr. Chitty here says :
"It is a general rule of law, that where there is a precedent debt or duty,
the creditor need not allege or prove any demand of payment before the
action brought, it being the duty of the debtor to find out his creditor, and
tender him the money, and, as it is technically said, the bringing of the
298 PROMISSORY NOTES. [CH. VI.
Law, generally the duty of the debtor to seek the cre-
ditor, and pay his debt, when it becomes due, unless it is
otherwise agreed between them; but it is otherwise
agreed between them, when a specific place is named,
where it is to be paid ; for then it imports not to be
payable elsewhere. 1
§ 231. If a Promissory Note be made payable at ei-
ther of two specified places, as, for example, at Tun-
bridge, or at London, the holder has a right to present
it at either place for payment at his election, and is not
bound to present it at both, although, if presented at
one place, it would have been paid, and it has been dis-
honored at the other. 2 The reason of this doctrine is,
action is a sufficient request. It might not, perhaps, be unreasonable, if
the law in all cases required presentment to the acceptor of a Bill, or maker
of a Note, before an action be commenced against him, because otherwise,
he might, on account of the negotiable quality of the instrument, and the
consequent difficulty to find out the holder of it, on the day of payment, in
order to make a tender to him, be subjected to an action without any de-
fault whatever ; and the engagement of the acceptor of a Bill or maker of
a Note, is to pay the money when due to the holder, who shall for that
purpose make presentment. And one reason why a party cannot recover
at law on a lost Bill or Note, is, that the acceptor of the one, and maker
of the other, has a right to insist on having it delivered up to him on his
paying it. It seems, however, that, in general, the acceptor or maker of
a Note cannot resist an action on account of neglect to present the instru-
ment at the precise time when due, or of an indulgence to any of the other
parties. And on the above-mentioned principle, that an action is of itself a
sufficient demand of payment, it has been decided, that the acceptor or
maker of a Note cannot set up as a defence, the want of a presentment to
him, even before the commencement of the action, and although the instru-
ment be payable on demand. But in such a case, upon an early application,
the Court would stay proceedings without costs." See, also, Thompson
on Bills, ch. 5, § 3, p. 383, 384, (2d edit.)
1 See 3 Kent. Comm. Lect. 44, p. 99, and note, (5th edit.) ; Thomson,
on Bills, ch. 6, § 1, p. 420, (2d edit.)
2 Chitty on Bills, ch. 9, p. 400, (8th edit.) ; Bayley on Bills, ch. 7, § 1,
p. 244, (5th edit.) ; Beeching v. Gower, Holt, N. P. R. 313 ; Story on
Bills, § 354.
CH. VI.] PRESENTMENT FOR PAYMENT. 299
that the alternative is presumed to he introduced for the
benefit of the holder, and not for that of the maker.
And such presentment at either place will not only be
sufficient to charge the maker, but to charge the indors-
ee also. 1 If a Promissory Note is made payable in a
large city, as, for example, in London, and no particular
place of presentment is named, and the maker does not
reside there, and has no place of business there, it
seems, that if, upon reasonable inquiry there, the maker
cannot be found, nor any person ready to pay it, the
Note may be treated as dishonored by the maker, and
the presentment in London by the holder held to be
sufficient to charge the indorsers, as well as the maker. 2
§ 232. Sometimes, a Promissory Note is made paya-
ble at any or either of the banks in a particular city,
and in such a case the question may arise, at what bank
the holder should present it for payment. The true
answer would seem to be, that he may present it for
payment at any one bank in the city at his election ;
and if, upon presentment there, payment be refused, it
will be sufficient to charge the indorsers, as well as
the maker. 3 Sometimes, all the parties to a Note, the
maker, the indorsers, and the payee, or other holder, by
parol agree, that a Note, payable by its terms generally,
shall be presented for payment at a particular place ; in
that case, a presentment at the place agreed on will bind
all the parties, and no personal demand need be made
upon the maker, to charge the indorser. 4
1 Story on Bills, § 354.
2 Story on Bills, § 353 ; Boot v. Franklin, 3 John. R. 208. See Mason
v. Franklin, 3 John. R. 202; 3 Kent, Comm. Lect. 44, p. 95, 96, (5th
edit.)
3 See North Bank v. Abbot, 13 Pick. R. 465, 469.
4 State Bank v. Hard, 12 Mass. R. 172; Whitwell v. Johnson, 17
300 PROMISSORY NOTES. [CH. VI.
§ 233. There does not seem to be any provision in
the French Law, which requires, that Promissory Notes
should specify any particular place of payment. 1 Nor,
indeed, is this required in cases of Bills of Exchange, ex-
cept where they are made payable at some other place
than the residence of the acceptor ; and where Bills are so
payable, the acceptance must state the house or domicil,
where payment thereof is to be made. 2 It is therefore
probable, that Promissory Notes are not usually in
France made payable at any particular banking-house,
or other place, although there does not seem any reason,
why they may not be. The common forms given in the
text-books contain no such designations of place ; but
only the name of the town or city, where the Note is
made. 3
§ 234. From what has been already said, it may be
inferred, and, indeed, it is a clearly established doctrine,
that where a Promissory Note is made payable at a par-
ticular place, as, for example, at a bank or banker's, in
every such case it will be sufficient for the holder to
present the same for payment at the specified place, and
he is under no obligation whatsoever, in case of its dis-
honor at that place, to present it for payment elsewhere,
or personally to the maker. 4 The reason is, that, by
Mass. R. 449; Brent's Ex'rs. v. Bank of Metropolis, 1 Peters, Sup. Ct.
R. 89 ; Bank of America v. Woodworth, 18 John. R. 315 ; S. C. in Err.
19 John. R. 391.
1 Code de Commerce, art. 188.
2 Code de Comm. art. 123; Pardessus, Droit Comm. Tom. 2, § 369;
Id. $ 393 ; Story on Bills, $ 359.
3 Ante, § 3, note ; Dupuy de la Serra, L'Art des Lettres de Change, ch.
19, p. 192, 193, (edit. 1789) ; Nouguier, Des Lettres de Change, Tom. 1,
Liv. 4, § 1, p. 496, 497.
4 Chitty on Bills, ch. 9, p. 399, 400, (8th edit.) ; Bayley on Bills, ch. 7,
§ 1, p. 219, (5th edit.) ; Saunderson v. Judge, 2 H. Black. 509 ; Stedman
CH. VI.] PRESENTMENT FOR PAYMENT. 301
making it payable at that particular place, the maker
impliedly dispenses with the necessity of making any
demand upon him, either personally, or elsewhere. And
this doctrine applies as well to the case of the indorsers,
as of the maker of such a Promissory Note ; for the
indorsers equally with the maker in such a case impli-
edly agree, that presentment at the place shall be suffi-
cient to bind all the parties.
§ 235. Having thus considered the doctrine of pre-
sentment for payment applicable to cases, where Pro-
missory Notes are originally made payable at a parti-
cular place, let us, in the next place, pass to the consi-
deration of the doctrine applicable to Promissory Notes
payable generally, and without reference to any parti-
cular place. This naturally involves the consideration
of the mode of presentment in ordinary cases. And,
here, the general rule is, that the presentment for pay-
ment may be made to the maker personally, or at his
dwelling-house, or other place of abode, or at his count-
ing-house, or place of business. 1 It seems, that a pre-
v. Gooch, 1 Esp. R. 4; De Bergareche v. Pillin, 3 Bing. R. 476 ; Berk-
shire Bank v. Jones, 6 Mass. R. 524, 526 ; Gale v. Kemper's Heirs, 10
Miller, Louis. R. 208 ; State Bank v. Hurd, 12 Mass. R. 172; Fullerton
v. Bank of United States, 1 Peters, Sup. Ct. R. 604 ; Bank of United
States v. Carneal, 2 Peters, Sup. Ct. R. 543; Ogden v. Dobbin, 2 Hall
R. 112 ; Gillett v. Averill, 5 Denio, R. 85.
1 Mr. Chancellor Kent, in his Commentaries (Vol. 3, Lect. 44, p. 95-
97, 5th edit.) says; "If the Bill has been accepted, demand of payment
must be made when the Bill falls due ; and it must be made by the holder
or his agent upon the acceptor, at the place appointed for payment, or at
his house or residence, or upon him personally, if no particular place be
appointed, and it cannot be made by letter through the post-office. But
there is a great deal of perplexity and confusion in the cases on this subject,
arising from refined distinctions and discordant opinions ; and it becomes
very difficult to know what is precisely the law of the land, as to the suffi-
ciency of the demand upon the maker of the Note, or the acceptor of the
PROM. NOTES. 26
302 PROMISSORY NOTES. [CH. VI.
sentment for payment may always be made personally
to the maker, wherever he may be found, although he
may not be either at his domicil, or at his place of busi-
ness. 1 But it is by no means indispensable, in any
case, to make a personal presentment to the maker, if
he has a dwelling-house, or a place of business. A pre-
sentment at the former, whether he be in the house or
not, if it be within reasonable hours, will be a due and
Bill. If there be no particular and certain place identified and appointed,
other than a city at large, and the party has no residence there, the Bill
may be protested in the city on the day without inquiry, for that would be
an idle attempt. The general principle is, that due diligence must be used
to find out the party, and make the demand ; and the inquiry will always
be, whether, under the circumstances of the case, due diligence has been
used. The agent of the holder, in one case, used the utmost diligence, for
several weeks, to find the residence of the indorser, in order to give him
notice of the dishonor of the Bill, and then took a day to consult his prin-
cipal before he gave the notice, and it was held sufficient. If the party
has absconded, that will, as a general rule, excuse the demand. If he has
changed his residence to some other place, within the same state or juris-
diction, the holder must make endeavors to find it, and make the demand
there ; though if he has removed out of the state, subsequent to the
making of the Note or accepting the Bill, it is sufficient to present the
same at his former place of residence. If there be no other evidence of
the maker's residence than the date of the paper, the holder must make
inquiry at the place of date ; and the presumption is, that the maker re-
sides where the Note is dated, and that he contemplated paying at that
place. But it is presumption only ; and if the maker resides elsewhere
within the state when the Note falls due, and that be known to the holder,
demand must be made at the maker's place of residence."
i See Chitty on Bills, § 9, p. 398-400, (8th edit.) ; Bayleyon Bills, ch.
7, § 1, p-219-223, (5th edit.) ; Fayle v. Bird, 6 Barn. & Cressw. 531 ;
Selby v. Eden, 3 Bing. R. 611 ; Shed v. Brett, 1 Pick. R. 413 ; Turner
v. Hayden, 4 Barn. & Cressw. 1, 3 ; Roscoe on Bills, 147, 148, (edit.
1829.) See Pothier, De Change, n. 129 ; Thomson on Bills, ch. 6, § 1,
p. 420, 421, (2d edit.) ; McGruder v. Bank of Washington, 9 Wheat. R.
598,600 ; Story on Bills, $ 325, 351 ; Louis. State Ins. Co. v. Shamburg,
14 Martin, R. 511; Bellievre v. Bird, 16 Martin, R. 186; Oakley v.
Beauvais, 11 Louis. R. 489. But see King v. Holmes, 1 Jones, Penn. R.
456.
CH. VI.] PRESENTMENT FOR PAYMENT. 303
sufficient presentment to charge the other parties to the
Note ; and if made at his place of business, it will be
sufficient, if made within the usual hours of business,
although he be absent therefrom ; for, in both instances,
he is bound to have a suitable person there to answer
inquiries and pay his Notes, if there demanded. 1 Where
the dwelling-house and place of business are in the
same town or city, the presentment for payment may
be made at either, and need not be at both, under the
like qualification, that it be within reasonable hours. 2
The like rule applies, where the dwelling-house is in
one town or city, and the place of business is in ano-
ther. 3
§ 236. It sometimes occurs, that the maker of a Pro-
missory Note changes his place of domicil or business
in the intermediate period between the time, when the
1 Chitty on Bills, ch. 9, p. 398-400, (8th edit.) ; Bayley on Bills, ch.
7, p. 219-226, (5th edit.) ; Shed v. Brett, 1 Pick. R. 413 ; State Bank v.
Hurd, 12 Mass. R. 172; Brent's Ex'is v. Bank of Metropolis, 1 Peters,
Sup. Ct. R. 89 ; Saunderson v. Judge, 2 H. Black. 509 ; Fenton v.
Goundry, 13 East, R. 465; Bank of Columbia v. Lawrence, 1 Peters,
Sup. Ct. R. 578 ; Story on Bills, § 351 ; Marius on Bills, 182, (2d edit.) ;
Id. p. 33, (8th edit. 1794) ; Elford v. Teed, 1 Made & Selw. 28; Miller
v. Hennen, 15 Martin, R, 587 ; State Bank v. Hennen, 16 Martin, R.
423 ; Oakey v. Beauvais, 11 Louis. R. 489 ; Burrows v. Hannegan, 1 Mc-
Lean, R. 309.
2 Ibid. ; Story on Bills, § 235, 351 ; Bank of Columbia v. Lawrence, 1
Peters, Sup. Ct. R. 582.
3 Ibid. See Bank of Columbia v. Lawrence, 1 Peters, Sup. Ct. R. 578.
Heineccius states a very curious ancient custom, existing in some parts of
Germany ; that, if a Bill of Exchange be payable by a Christian to a Jew,
the presentment should be made, and payment be demanded, at the house
of the Christian ; but, if a Bill is payable by a Jew to a Christian, the
payment is to be made by the Jew at the house of the Christian . But, if a
Bill be payable by a Jew to a Jew, then the Jew holder must demand pay-
ment at the house of the acceptor. Heinecc. de Camb. cap. 4, § 42 and
note ; Story on Bills, § 358.
o
04 PROMISSORY NOTES. [CH. VI.
Note was made, and when it becomes due. In such a
case, it is indispensable to make a presentment and de-
mand of payment at the new domicil, or place of busi-
ness, if it is known, or can by reasonable diligence and
inquiries be found, and it be within the same state, in
order to charge the indorsers ; and a presentment and
demand at the old domicil or place of business would be
insufficient and improper. 1 If the maker has removed
his domicil, or place of business, to another state or
country, 2 or, if, having removed his domicil and place of
business to some other part of the same state, the new
domicil or place of business cannot, upon diligent in-
quiry, be ascertained, 3 then the holder will be excused
for non-presentment for payment, and will be entitled
to the same recourse against the indorsers, as if there
had been a due presentment. It seems, also, that if the
maker of a Promissory Note resides, and has his domi-
cil, in one state, and actually dates, and makes, and de-
livers a Promissory Note in another state, it will be
sufficient for the holder to demand payment thereof at
the place, where it is elated, if the maker cannot per-
i Chitty on Bills, ch. 7, p. 307, (8th edit.) ; Id. ch. 9, p. 400, 401 ;
Bay ley on Bills, ch. 7, § 1, p. 218, 219, (5th edit.) ; Collins v. Butler, 2
Str. R. 1087 ; McGruder v. Bank of Washington, 9 Wheat. R. 598 ; An-
derson v. Drake, 14 John. R. 114; 3 Kent, Comm. Lect. 44, p. 96, 97,
(5th edit.) ; Story on Bills, § 235, 351, 352; Reid v. Morrison, 2 Watts
& Serg. 401 ; Carroll v. Upton, 2 Sandford, Sup. Ct. N. Y. R. 172. See
Wheeler v. Field, 6 Mete. R. 290.
2 McGruder v. Bank of Washington, 9 Wheat. R. 598, 601, 602 ; Story
on Bills, § 351 and note ; Id. § 235 ; Id. § 252, 305, 308 ; Anderson v.
Drake, 14 John. R. 114; Louis. State Ins. Co. v. Shamburg, 14 Martin,
R. 511 ; Wheeler v. Field, 6 Mete. R. 290.
3 Chitty on Bills, ch. 9, p. 400, (8th edit.) ; 3 Kent, Comm. Lect. 44,
p. 96, 97, (5th edit.) ; Bayley on Bills, ch. 7, ^ 1, p. 218, (5th edit.) ;
Hepburn v. Toledano, 10 Miller, Louis. R. 643 ; Blakely v. Grant, 6 Mass,
R. 386.
CH. VI.] PRESENTMENT FOR PAYMENT. 305
sonally, upon reasonable inquiries, be found within the
state, and has no known place of business there. 1
§ 237. If the maker has absconded and cannot be
found, or, if, at the time of the maturity of the Note, he
has no known residence or place, where a presentment
can be made, then the holder will, in like manner, be
excused from any presentment. 2 But, if the maker has
gone abroad, and has temporarily left the country, or he
is absent upon a journey, that will not be a sufficient
excuse for the want of a due presentment of the Note
for payment, if he has left his family behind at his
house, or it remains open, or if he has left his counting-
house, or place of business, open and accessible, or if he
has a known agent to transact his business at the place
of his domicil during his absence ; for, in all such cases,
a presentment should be made at his dwelling-house, or
place of business, or a demand made upon such agent ;
as, in either case, it is obvious that funds may have
been provided to meet the exigency. 3
§ 238. If, at the time and place of presentment for
payment within reasonable hours, the holder finds, that
the dwelling-house or place of business of the maker of
1 Hepburn v. Toledano, 10 Miller, Louis. R. 643. But see Spies v.
Gilmore, 1 Comstock, R. 321 ; Taylor v. Snyder, 3 Denio, R. 264. Post,
§ 264.
2 Story on Bills, § 327, 351 ; Chitty on Bills, ch. 7, p. 307, (8th edit.) ;
Id. ch. 8, p. 360 ; Id. ch. 10, p. 485, 524 ; Bayley on Bills, ch. 7, § 1, p.
218, (5th edit.) ; Anon. Ld. Raym. 743 ; Whittier v. Graffam, 3 Greenl.
R. 82 ; Putnam v. Sullivan, 4 Mass. R. 45 ; Widgery v. Munroe, 6 Mass.
R. 449 ; Hale v. Burr, 12 Mass. R. 86 ; Duncan v. McCullough, 4 Serg.
& Rawle, 480 ; Lehman v. Jones, 1 Watts & Serg. 126 ; Wolfe v. Jew-
ett, 10 Miller, Louis. R. 390 ; Taylor v. Snyder, 3 Denio, R. 146 ; Bel-
mont Bank v. Patterson, 17 Ohio R. 78.
3 Story on Bills, § 351. See Philips v. Astling, 2 Taunt. R. 206 ;
Chitty on Bills, ch. 7, p. 307, (8th edit.)
26*
306 PROMISSORY NOTES. [CH. VI.
a Promissory Note is shut up, and the holder cannot,
upon reasonable inquiries, ascertain, where he is gone,
or where he is to he found, or that he has acquired a
new domicil, that will constitute a sufficient ground for
the non-presentment of the Note. 1 But it may not, in
many cases, and certainly will not in all, excuse farther
inquiries on the part of the maker, in order to make
due presentment for payment, that the dwelling-house
or the counting-house of the maker is shut up ; because
it may be ascertained, upon farther inquiries, that the
maker has removed elsewhere, or is to be found person-
ally at lodgings at another place in the town or city, or
is absent only for a few moments from his domicil, and
about to return immediately. 2
§ 239. Where a Promissory Note is payable by a
partnership, it will be sufficient to make a presentment
for payment to either of the partners, either personally,
or at his domicil, or at the place of business of the firm,
or at his own separate place of business, if he has any ;
and it is not necessary to make a presentment to all the
partners ; 3 for, in such a case, each partner acts not
1 Chitty on Bills, ch. 7, p. 307, (8th edit.) ; Id. ch. 9, p. 386, 387 ;
Bayley on Bills, ch. 7, § 1, p. 218, (5th edit.) ; Collins v, Butler, 2 Str.
1087 ; Story on Bills, § 352. See, also, Howe v. Bowes, 16 East, 112 ;
S. C. in error, 5 Taunt. 30 ; Hine v. Allely, 4 Barn. & Adolp. 624 ;
Williams v. Bank of U. States, 2 Peters, R. 96; Shed v. Brett, 1 Pick.
R. 413 ; Franklin v. Verbois, 6 Miller, Louis. R. 730. [A notary having
a bill for the purpose of demanding payment of an acceptor, who had a
short time before been a boarder at a public hotel in Cincinnati, was held
to be under no obligation, when informed at the hotel that the acceptor had
gone down the river to be absent some days, to present the bill or make
demand of payment of any one there, in order to fix the liability of an in-
dorsee Belmont Bank v. Patterson, 17 Ohio R. 78.]
2 Ibid. ; Collins v. Butler, 2 Str. R. 1087. See Lanusse v. Massicot s
3 Martin, R. 261 ; Granite Bank v. Ayers, 16 Pick. R. 392.
3 Chitty on Bills, ch. 8, p. 355, 369, 370, (8th edit.) ; Story on Bills.
§362.
CH. VI.] PRESENTMENT FOR PAYMENT. 307
only for himself, but he represents the partnership. But
a different rule may apply in the case of joint makers,
who are not partners ; for, in such a case, a presentment
to one cannot be deemed a presentment to both, nor a
dishonor by one a dishonor by both ; and in respect to
the indorsers, it may be said, that they contract to pay
only upon due presentment to all the joint makers, and
a dishonor by each. 1
§ 240. What will be due and reasonable diligence, on
the part of the holder, in making inquiries to ascertain
the actual residence or place of business of the maker,
either originally, or upon a change of his domicil, is a
1 After some researches, I have not been able to find a single English
authority exactly in point on this question. The case of Porthouse v.
Parker, 1 Camp. R. 82, seems to have been a case of partners ; and is so
treated by Mr. Justice Bayley, and by Mr. Chitty. See Bayley on Bills,
ch. 7, § 2, p. 2S5, (5th edit.) ; Chitty on Bills, ch. 8, p. 370, (8th edit.) ;
Id. ch. 8, p. 530, 531 ; Id. p. 618. The case of Shed v. Brett, 1 Pick.
R. 401, was obviously a case of a demand upon a partnership. See, also,
the case of Shed v. Brett, 1 Pick. R. 413, which was between the same
parties. The nearest approach by analogy is that of joint indorsers, not
partners, to whom, in case of dishonor of the Note at its maturity, notice,
it should seem, ought to be severally given, if they are not partners. See
Story on Bills, § 299, 362. But, upon this point, also, there is no strict
English authority. In Ohio it has been decided, that in cases of a joint
and several Note, the promisors are to be deemed quo ad hoc as partners,
and notice and a demand upon one is a demand on all. Harris v. Clark,
10 Ohio R. 5. In Connecticut, on the other hand, it has been held, that
each joint indorser is entitled to a several notice of the dishonor of the
Note, at its maturity. Shepard v. Hawley, 1 Conn. R. 368. Mr. Chan-
cellor Kent, in hisj£ommentaries, (3 Kent, Comm. Lect. 44, p. 105, note
b, 5th edit.) inclines to the last opinion ; which strikes me to be the cor-
rect one. See, also, Bank of Chenango v. Root, 4 Cowen, R. 126. In
cases of Notes payable to joint payees, not partners, all must indorse to
transfer the Note. Carvick v. Vickery, Doug. R. 653 ; Jones v. Radford,
1 Camp. R. 83, note; Chitty on Bills, ch. 2, p. 66, (8th edit.) This
shows, that one is not competent to act for the other, as to making a trans-
fer. In what respect does this differ from that of acting for the other, in
cases of presentment for payment, or of notice of dishonor? Post, § 255.
308 PROMISSORY NOTES. [CH. VI.
matter susceptible of no definite rule, and must essen-
tially depend upon the circumstances of each particular
case ; and will be governed by the same general consi-
derations, as those, which regulate the place and mode
of notice to parties. 1
§ 241. So peremptory is this duty of the holder to
demand payment on the very day of the maturity of
the Bill, that (as we have already seen 2 ) even the bank-
ruptcy, or insolvency, or death of the maker before or
at the time of its falling due will not excuse or justify
the omission. 3 The same rule equally applies to~making
a presentment and demand at the proper place, where
it should be made; and the omission to do so will not
be excused by the bankruptcy, insolvency, or death of
the maker. In the former cases, the demand may, and
should be made upon the bankrupt or insolvent person-
ally, or at his domicil, or place of business, in the same
way and manner, as if he were not bankrupt or insol-
vent. 4 If his house, or place of business, is shut up, it
1 See Chitty on Bills, ch. 10, p. 524, 525, (8th edit.) ; Story on Bills,
§ 299, and note ; Id. § 352, and note ; 3 Kent, Comm. Lect. 44, p. 96, 97,
(5th edit.)
2 Ante, § 203 ; Story on Bills, § 346.
3 Story on Bills, $ 279, 306, 326 ; 1 Bell, Comm. B. 3, ch. 2, § 4, p.
413, (5th edit.) ; Chitty on Bills, ch. 9, p. 386-389, (8th edit. 1833) ;
Bayley on Bills, ch. 7, § 1, p. 251, (5th edit. 1830) ; Id. § 2, p. 302;
Russel v. Langstaffe, Doug. R. 497, 515; Esdaile v. Sowerby, 11 East,
R. 114; Story on Bills, § 230, 279 ; Crossen v. Hutchinson, 9 Mass. R.
205 ; Garland v. The Salem Bank, 9 Mass. R. 408 ; Jackson v. Richards,
2 Caines, R. 343 ; Barton v. Baker, 1 Serg. & Rawle, R. 334 ; Sandford
v. Dillaway, 10 Mass. R. 52 ; Farnum v. Fowle, 12 Mass. R. 89 ; Groton
v. Dallheim, 6 Greenl. R. 476 ; Shaw v. Reed, 12 Pick. R. 132 ; Law-
rence v. Langley, 14 N. Hamp. R. 44 ; Robson v. Oliver, 10 Adolph. &
Ellis, N. S. 704 ; Hunt v. Wadleigh, 26 Maine, R. 271.
4 Chitty on Bills, ch. 9, p. 386 - 388, (8th edit. 1833) ; Collins v. But-
ler, 2 Str. R. 1087; Howe v. Bowes, 16 East, 112; 1 Maule & Selw.
555 ; Groton v. Dallheim, 6 Greenl. R. 466 ; Shaww. Reed, 12 Pick. 132.
CH. VI.] PRESENTMENT FOE, PAYMENT. 309
may not always be sufficient to make a demand there ;
and the holder ought to make inquiries, where he may
be found ; and if, upon reasonable inquiries, the fact can
be ascertained of the place, where he may be found,
presentment should be made there. 1 In case of the
death of the maker, the holder should make present-
ment for payment to the executor or administrator of
the deceased, if one has been appointed, and he, or his
residence, can be ascertained upon reasonable inquiries ;
and, if there be no executor or administrator, or he or
his place of residence cannot be found, then present-
ment for payment should be made at the house, or other
domicil, of the deceased. 2 If the Note be by a firm,
and one partner dies before the maturity of the Bill,
the presentment should be made to the survivors, and
not to the personal representative of the deceased. 3 We
shall hereafter have occasion to notice other considera-
tions applicable to this part of the subject. 4
i Chitty on Bills, ch. 9, p. 386, 387, (8th edit. 1833) ; Molloy, B. 2,ch.
10, § 34 ; Story on Bills, § 246.
2 Chitty on Bills, ch. 9, p. 389, 401, (8th edit. 1833) ; Bayley on Bills,
ch. 7, § 1, p. 218, 219, (5th edit. 1830) ; Id. § 2, p. 286 ; Molloy, B. 2,
ch. 10, § 34; Magruder v. Union Bank of Georgetown, 3 Peters, R. 87;
Juniata Bank v. Hale, 16 Serg. & Rawle, 157 ; Story on Bills, § 235 ; 1
Bell, Coram. B. 3, ch. 2, § 4, p. 413, (5th edit.)
3 Cayuga County Banku. Hunt, 2 Hill, N. Y. R. 635.
4 Story on Bills, § 346. This doctrine is strongly illustrated by the
cases applicable to bankers' Notes, where the failure or bankruptcy of the
bankers will constitute no ground for non -presentment for payment. On
this subject, Mr. Chitty says ; " In general, in the case of country bankers'
Notes, payable on demand, although the bank has stopped payment and
been shut up, and has declared, that they will not pay any Notes, yet a clue
and regular presentment of such Notes, with respect to time, must be for-
mally made at the banker's, or to one or more of the makers, unless dis-
pensed with by the parties to be resorted to by the holder, and due and im-
mediate notice of the dishonor must be given to all the parties who are
known to have transferred the same, or they will be discharged from all
310 PROMISSORY NOTES. [CH. VI.
§ 242. In the third place, as to the mode of present-
ment and the demand of payment. If it he personal,
or verbal, it should be absolute, and for present actual
payment, and not with any offer or agreement for any
farther credit. 1 If it be in writing, as may in some cases
be proper, where a personal or verbal notice is impracti-
cable, or, under the circumstances, not indispensable, the
writing should expressly or by implication, be equally
liability, as well to pay the Note as the debt, in respect of which it was
transferred. Hence, it is expedient for any holder of a Note payable on
demand to present it for payment as soon as possible, and immediately on
being apprized of the insolvency of the banker, or other party, who ought
primarily to pay the same, formally to tender the same and demand pay-
ment at the banking-house, and also of the partners of the firm, if practi-
cable ; and, as soon as possible afterwards, to give notice of the non-pay-
ment, to all the parties on whom he can possibly have any claim. Nor is
there any distinction in this respect, whether the Note payable on demand
has been circulated by a party after the maker has stopped payment or was
insolvent, unless the former knew the fact at the time. If he did not, then
he may insist on a due presentment of the Note, or at least on having due
notice of the dishonor within the time usually applicable to such Notes.
Therefore, where it appeared, that a Note of a country bank was given in
payment while the bank continued open, but before the time allowed by the
Law Merchant for presentment had expired, the bank failed ; yet it was
held, that the holder was bound to present the Note for payment in due
time, and that he, by neglecting to do so, made it his own. So, where, on
the 10th of December, at three o'clock in the afternoon, the defendant at
York, forty miles from Huddersfield, delivered to the plaintiff four five-
pound Notes, payable to bearer on demand, of the bank of Dobson & Co.,
at Huddersfield, in payment for goods sold, and at eleven o'clock on that
day, those bankers had stopped payment, but neither the plaintiffs nor the
defendant knew of it ; and the plaintiff did not circulate or transfer the
Notes, nor present them for payment, and on the 17th of December
required the defendant to take them back, and he refusing, the plaintiff
sued him for the price of the goods, the Court held, that the defendant was
discharged from liability, and that the plaintiff should either have nego-
tiated the Notes, or forwarded them for payment on the day after he
received them, and have given due notice of non-payment."
1 Chitty on Bills, ch. 9, p. 401, 402, (8th edit. 1833) ; Bayley on Bills,
ch. 9, p. 337, 338, (5th edit. 1830) ; Gillard v. Wise, 5 Barn. & Cressw.
134 ; Lockwood v. Crawford, 18 Conn. R. 361.
CH. VI.] PRESENTMENT FOR PAYMENT. 311
absolute and direct. Nor should any payment be ac-
cepted, which is not an immediate payment in money;
and payment by a check or other draft upon a bank or
on bankers should be declined. 1
§ 243. The mode of presentment of a Promissory
negotiable Note for payment may be farther illustrated
by considering the acts required of the holder, when he
is in possession of the Note, and when the Note has been
lost or mislaid. If the Note is payable generally, with-
out any specification of place, the holder must have the
Note in possession, ready to be delivered up to the
maker, when the presentment for payment is made ; for,
ordinarily, a presentment by a person not in possession
of the Note will not be 'deemed a just or regular pre-
sentment, or binding the maker to immediate payment. 2
If the Note is payable at a bank, or banker's, or at any
other specified place, the holder, whether the bank, or
banker, or other person, has lodged it there, or has pos-
session of it there at the time of its maturity, it will be
1 Chitty on Bills, ch. 9, p. 401, 402, (8th edit. 1833.) Mr. Chitty says ;
" The Bill or Note should not be left in the hands of the drawee, or maker,
without immediate actual payment in money ; at least, if it be, the present-
ment is not considered as made, until the money is called for ; and, although
it has been decided, that neither a holder, nor a banker, acting- as agent, is
guilty of neglect, by giving up a Bill to the acceptor, upon his delivering
to them his check on another banker, that doctrine may now be question-
able ; and most of the London bankers, on presenting a Bill for payment
in the morning, leave a ticket, where it lies due, and declaring, that, ' in
consequence of great injury having arisen from the non-payment of drafts
taken for Bills, no drafts can, in future, be received for Bills, but that the
parties may address them for payment to their bankers, or attach a draft to
the Bill when presented.' " Story on Bills, § 348, 364.
2 Ante, § 106-110 ; Hansard v. Robinson, 7 Barn. & Cressw. 90 ;
Freeman v. Boynton, 7 Mass. R. 483, 486 ; Whitwell v. Johnson, 17
Mass. R. 449, 452 ; Gilbert v. Dennis, 3 Mete. R. 495-497. But see
Fales v. Russell, 16 Pick. R. 315, 316 ; Baker v. Wheaton, 5 Mass. R.
509, 512 ; Jones v. Fales, 5 Mass. R. 101.
312 PROMISSORY NOTES. [CH. VI.
the duty of the maker to make payment thereof at that
very place, and no special demand need be made upon
the maker. If held by a bank, or banker, upon a dis-
count thereof, or for the purpose of collection for the
owner, it will be sufficient to establish a due pre-
sentment and dishonor of the Note against all the
parties thereto, that no funds are there lodged or pos-
sessed by the maker, within the usual hours of business,
for the payment thereof. 1 But, in order to make such
the legal result, the Note must be actually on the day
of its maturity, at the bank, or the banker's, ready
to be delivered up on payment thereof; for, in general,
it is necessary for a person, demanding payment of a
negotiable Note, to have it with him, when he makes
the demand ; 2 and, although the presumption is, that a
Note payable at a bank, will, if it is the property of the
bank, be found there at its maturity, that presumption
may be rebutted by countervailing proof. 3
§ 24.4. In respect to cases, where a negotiable Pro-
missory Note has been lost, mislaid, or destroyed, we
have already seen, that in England no remedy ordina-
rily exists for the holder at law, but his remedy is in
i Chitty on Bills, ch. 9, p. 399, 400, (8th edit.) ; Bayley on Bills, ch. 7,
§ 1, p. 219, (5th edit.) ; Gilbert v. Dennis, 3 Mete. R. 495-497 ; Berk-
shire Bank v. Jones, 6 Mass. R. 524 ; Folger v. Chase, 18 Pick. R. 63 ;
North Bank v. Abbot, 13 Pick. R. 465 ; Fullerton v. Bank of U. States,
1 Peters, Sup. Ct. R. 604 ; Bank of U. States u. Carneal, 2 Peters, Sup. Ct.
R. 543; Ogden v. Dobbin, 2 Hall, R. 112 ; Nicholls v. Goldsmith, 7
Wend. R. 160.
2 Freeman v. Boynton, 7 Mass. R. 483, 486 ; Woodbridge v. Brigham,
13 Mass. R. 556 ; Whitwell v. Johnson, 17 Mass. R. 449, 452 ; Gilbert
v. Dennis, 3 Mete. R. 495 ; Shed v. Brett, 1 Pick. R.401 ; Shawu. Reed,
12 Pick. R. 132 ; Ante, § 106 - 110 ; Haddock v. Murray, 1 New Hamp.
R. 140.
3 Folger v. Chase, 18 Pick. R. 63 ; Berkshire Bank v. Jones, 6 Mass.
R. 524, 525.
CH. VI.] PRESENTMENT FOR PAYMENT. 313
equity ; * and that in America, there is a conflict in the
authorities, some being in the affirmative, some in the
negative, and some adopting an intermediate doctrine. 2
But, whichever of these conflicting doctrines be the
true one, it seems clear, that the loss, mislaying, or
destruction of the Note, will not dispense with a
regular presentment for payment on the part of the
holder ; and, if it be not made, the indorsers will be
discharged from their responsibility. 3 The reason is,
that it is by no means to be taken for granted, that the
mislaying, loss, or destruction of the Note would have
been insisted on, even in states and countries, where by
the Lex loci it is a good objection ; for the maker might
still be willing to pay upon an indemnity being offered
and given to him, or even without an indemnity, where
he had a firm personal confidence in the integrity and
high commercial solvency of the holder. 4 The case is
far stronger than that of the bankruptcy, or insolvency,
of the maker at the maturity of the Note, which (we
have seen 5 ) constitutes no excuse, either in law or in
equity, for non-presentment of the Note for payment.
§ 245. The law of France is the same. That law re-
requires a protest to be made upon the dishonor of a
Promissory Note by the maker, as well as upon the dis-
honor of a Bill of Exchange by the acceptor ; and it has
i Ante, § 106 - 112 ; Post, § 445 - 450.
2 Ante, \ 107-111 ; Posey v. Decatur Bank, 12 Alabama R. 801 ;
Thayer v. King, 15 Ohio R. 242.
3 Chitty on Bills, ch. 6, p. 280, 286, 288, 289, (8th edit.) ; Id. 291, 297 ;
Thackray v. Blackett, 3 Camp. R. 164 ; Marius on Bills, p. 19, (edit.
1794) ; Bayley on Bills, ch. 7, p. 302, (5th edit.) ; Id. ch. 9, p. 336 ; Id.
p. 369, 371-373 ; Story on Bills, § 348 ; Beawes, Lex Merc, by Chitty,
Vol. 1, p. 589, pi. 182, 185.
4 Ibid. ; Smith ». Rockwell, 2 Hill, N. Y. R. 482.
5 Ante, § 203,241.
PROM. NOTES. 27
314 - PROMISSORY NOTES. [CH. VI.
been said that inasmuch as every protest must include in
it a copy or transcript of the Note or Bill, it is impossible
to include one, when the Note or Bill is lost or destroyed ;
and that the rule of law is, Lex neminem cogit ad vana
seu inutilia, sni impossibilia peragenda ; x or, as the Roman
Law more succinctly expresses it, Impossibilium nulla
obligatio est? But Pothier has with great truth and
acuteness remarked, that this may be a very good rea-
son why a copy or transcript should not be put in the
protest, and the formality be dispensed with ; but that
it furnishes no ground why a demand of payment and
protest for non-payment should not be made, since nei-
ther of them is impossible in such a case. 3
§ 246. In the fourth place, as to the person, by whom
a Promissory Note is, upon its maturity, to be presented
for payment. And here the general answer to be given
to the inquiry, who is the proper person to make the
presentment, is, that, if the holder is living, it should
be made by him personally, or by his authorized agent. 4
Who is an authorized agent, competent to make the
presentment, may, in some cases, admit of some nicety
of doctrine under peculiar circumstances. It is clear,
that it is not necessary that the authority to an agent
for this purpose should be in writing ; and a parol au-
thority will be sufficient. 5 If the Note belong to a
1 Branch's Maxims, p. 98 ; 5 Co. R. 21 ; Wingate's Maxims, 600.
2 Dig. Lib. 50, tit. 17, 1. 185.
3 Pothier, De Change, n. 145 ; Ante, § 110 ; Code de Comm. art. 150-
152 ; Nouguier, Des Lettres de Change, Tom. 1, ch. 8, § 4, p. 335-341 ;
et Appendica, p. 342 ; Story on Bills, § 279 and note.
4 Chitty on Bills, ch. 9, p. 398, 428, 429, (8th edit.) ; Coore v. Calla-
way, 1 Esp. R. 115.
5 Shed v. Brett, 1 Pick. 401 ; Freeman v. Boynton, 7 Mass. R. 483 ;
Hartford Bank v. Barry, 17 Mass. R. 94 ; Seaver v. Lincoln, 21 Pick. R.
267.
CH. VI.] PRESENTMENT FOR PAYMENT. 315
partnership, as holders, either of the partners or their
agent may demand payment. In general, it may also
be stated, that if the Note is indorsed in blank, and is
in possession of a party, he will be deemed prima facie
entitled to demand payment thereof, whether he be the
actual owner thereof, or be only an agent for the owner,
or for any other party interested therein and entitled to
the benefit thereof. 1 If a Note has been indorsed by
the payee to a third person, and yet is found in his pos-
session, that will be sufficient evidence, prima facie, that
he has become lawfully possessed thereof, and entitled
to demand payment thereof, as owner or agent. 2 If a
Note belong to a bank, the cashier thereof is deemed
virtute officii to make demand of payment, and to author-
ize the demand by a sub-agent. 3 And in all cases,
where a Note is in possession of the agent of the owner,
whether by a blank indorsement, or otherwise, it is com-
petent for the owner himself at all times to demand
payment thereof personally and in his own name. 4
§ 247. The cases which we have hitherto been consi-
1 Ante, § 243 ; Chitty on Bills, ch. 9, p. 398, 428, 429, (8th edit.) ;
Story on Bills, § 360, 415, 416 ; Owen v. Barrow, 4 Bos. & Pull. 103 ;
Clerk v. Pigot, 12 Mod. R. 193 ; Little v. Obrien, 9 Mass. R. 423 ; Ster-
ling v. Marietta and Susq. Trading Co. 11 Serg. & Rawle, 179 ; Mauran
v. Lamb, 7 Cowen, R. 174 ; Gorgerat v. McCarty, 2 ball. R. 146 ;
1 Yeates, R. 98 ; Bachellor v. Priest, 12 Pick. R. 399 ; Sherwood v.
Roys, 14 Pick. R. 172 ; Banks v. Eastin, 15 Martin, R. 291 ; Shaw v.
Thompson, 15 Martin, R. 392 ; Adams v. Oakes, 6 Carr. & Payne, 70.
See Thatcher v. Winslow, 5 Mason, R. 58.
2 Bachellor v. Priest, 12 Pick. R. 399 ; Dugan v. the United States,
3 Wheat. R. 172 ; Jones v. Fort, 9 Barn. & Cressw. 764 ; Bank of U.
States v. United States, 2 How. Sup. Ct. R. 711.
3 Hartford Bank v. Barry, 17 Mass. R. 94. See Church v. Barlow, 9
Pick. R. 547 ; Fleckner v. Bank of the United States, 8 Wheat. R. 338.
4 Pothier De Change, n. 164 ; Mottram v. Mills, 1 Sandford, Sup. Ct.
R. 37 ; Dolefus v. Frovel, 1 Denio, R. 367 ; Post, § 452 ; Story on Bills,
§ 209.
o
16 PROMISSORY NOTES. [CH. VI.
dering, are those, where the Promissory Note is nego-
tiable, and indorsed in blank, or found in the possession
of a holder, who is clearly seen, upon the instrument,
to be the apparent owner thereof, or entitled to deal
with it as owner, or as agent of the owner. But a differ-
ent rule may apply, and, indeed, would seem properly
to apply to cases where a Note is not originally made
negotiable, or if originally negotiable, has been indorsed
to a particular person only, and where, of course, in either
case, the holder in possession is not the payee, or the spe-
cial indorsee thereof. 1 Under such circumstances, the
mere production of the Note by the holder is not ordina-
rily deemed a sufficient title or authority to demand pay-
ment, because his possession is no proof of his title or
authority to hold the same ; and if it is refused on that
account, it may be doubtful, if any recourse can be had
against the indorsers on account of the dishonor, at least
unless a positive authority or title is clearly made out
by positive and unexceptionable evidence. 2
§ 248. The French Law recognizes the same princi-
ple. Pothier, in speaking upon the subject, says, that
payment, and of course presentment for payment, can
be properly made only to the party, who, at the time of
the maturity of the Note, is the lawful proprietor thereof
or to his authorized agent. 3 If the Note is not nego-
tiable, but has been assigned to another person by an
indorsement thereon, then the assignee may lawfully
1 But see Chitty on Bills, ch. 9, p. 389 ; Marius on Bills, p. 33, 34,
(edit. 1794).
2 See Freeman v. Boynton, 7 Mass. R. 483 ; Bank of Utica v. Smith,
18 John. R. 230 ; Shed v. Brett, 1 Pick. R. 401, 404 ; Chitty on Bills,
ch. 9, p. 398, (8th edit.) ; Id. 428, 429 ; Marius on Bills, p. 33, 34, (edit.
1794) ; Pothier, De Change, n. 165, 168, 169 ; Scaccia, Tract, de Coram.
§ 9, Glos. 5, n. 340, p. 571.
3 Pothier, De Change, n. 164.
CH. VI.] PRESENTMENT FOR PAYMENT. 317
require payment. 1 But, if the assignment in such a
case be on a separate paper, notice thereof to the maker
is indispensable to charge him with payment to the
assignee ; and if, before such notice, he should pay the
same to the payee, or to any person, to whom the payee
had indorsed the Note, on its production, the payment
would be good. 2
§ 249. It follows, of course, from what has been al-
ready said, 3 that the holder, at the maturity of the Note
must be a competent person to make the presentment
and demand payment, or the agent of a competent per-
son ; for, if he be not, the payment will not be good
when made to him ; and the money may be recovered
back from the maker by the proper person entitled
thereto. Independent of the cases of persons, who are
disabled by being under guardianship, or coverture, from
demanding payment to be made to them, as sui juris,
there are others which may require our consideration,
as, for example, cases where the holder has become
bankrupt, or is dead before or at the maturity of the
Note. In the case of the bankruptcy of the holder, if
assignees have been appointed, the presentment should
be made by them, or by some person authorized by
them. 4 Even if the bankrupt were but a mere agent, a
demand of payment by the assignees would be good
and sufficient, and inure for the benefit of the owner ; 5
although, under the circumstances, a demand by the
bankrupt himself might not be equally good, as being
made by an agent, whose authority is revoked hy ope-
ration of law, or upon the presumed intention of the
1 Ibid. 164, 165, 168, 169. 2 ibid. 165.
3 Ante, § 246.
4 Chitty on Bills, ch. 9, p. 398, (8th edit.)
5 Jones v. Fort, 9 Barn. & Cressw. 764-
27*
318 PROMISSORY NOTES. [CH. VI.
principal. 1 If no assignees have been appointed, and
the act of bankruptcy is unknown to the maker, a pre-
sentment by the bankrupt may be (it should seem)
good, and the maker may safely pa}'' the Note to the
bankrupt. But, if the act of bankruptcy be known, the
presentment to, or payment by, the bankrupt would not
be good, unless ratified by the assignees. 2
§ 250. In the case of the death of the holder, the
legal right to demand payment of the Note rests in his
executor or administrator. 3 If there be no administra-
tor or executor duly appointed, and capable of acting at
the time of the maturity of the Note, that would seem
to furnish a sufficient excuse for the non-presentment of
the Note for payment until an executor or administra-
tor is appointed and duly qualified to act. 4 But of this
more will be said hereafter. If the holder is a woman,
and she marries before or at the maturity of the Bill,
the presentment should be made by her husband, and a
presentment by her, after the marriage, without his con-
sent or authority, will not be sufficient to discharge the
maker, or justify a payment by him. 5 If the Note be-
long to a partnership, as holders, the presentment should
be by the surviving partner, upon the death of the other.
1 Story on Agency, fy 486 ; Hudson v. Granger, 5 Barn. & Aid. 27, 31,
32 ; Pothier, De Mandat. n. 120.
2 See Chitty on Bills, ch. 9, p. 428 -430, (8th edit.) ; Bayley on Bills,
eh. 7, § 2, p. 284, (5th edit.) ; Ex parte Moline, 19 Ves. 216 ; Jones v.
Fort, 9 Barn. & Cressw. 764. I have not seen any case directly in point ;
but it would seem a just result, from analogous provisions in bankruptcy,
and the decisions thereon. In Ex parte Moline, 19 Ves. 216, Lord Eldon,
upon the question of the sufficiency of the notice of the dishonor of a Bill,
given to the bankrupt before the appointment of assignees, said, " The
bankrupt represents his estate until assignees are chosen."
3 Chitty on Bills, ch. 6, p. 225, 226, (8th edit.)
4 Ibid. ch. 9, p. 360, (8th edit.) ; Id. ch. 10, p. 485, 486, 524.
5 Story on Bills, § 90 - 93, 360 ; Chitty on Bills, ch. 2, p. 26, (8th edit.)
CH. VI.] PRESENTMENT FOE, PAYMENT. 319
§ 251. In the fifth place, as to the person to whom
presentment of the Note for payment is to be made. In
general, it should be made to the maker, either person-
ally, or at his dwelling-house or place of business, unless
the Note be payable at a particular place, as, fof exam-
ple, at a bank or banking-house, in which case, it should
be there presented for payment. 1 A presentment may
also be made to the duly authorized agent of the maker,
if he has one, and then the presentment will ordinarily
be of the same avail, as it would be, if made to the
maker himself. 2
§ 252. In case of the bankruptcy or insolvency of
the maker, a presentment should still be made to the
bankrupt or insolvent for payment, and it will be no
excuse to the holder, that he has omitted in such a case
to perform the duty. 3 The same rule prevails in the
French Law, and has been expressly recognized by
Savary and Pothier. 4
253. In case of the death of the maker, at the time
of the maturity of the Note, presentment for payment
should be to his executor or administrator, if any one
be appointed and qualified to act, and the place of resi-
dence of the executor or administrator can, upon reason-
able inquiries, be ascertained. 5 If there be no executor
or administrator appointed and qualified to act, then a
1 Ante, §226-232; Chitty on Bills, ch. 9, p. 399-401, (8th edit.)
2 Story on Bills, § 229, 362 ; Chitty on Bills, ch. 7, p. 301, 307, (8th
edit.) ; Id. ch. 9, p. 389, 398-401. See Phillips v. Astling, 2 Taunt.
R. 206.
3 Ante, § 203, 204 ; Bayley on Bills, ch. 7, § 1, p. 251, 252, (5th edit.) ;
Chitty on Bills, ch. 8, p. 386, (8th edit.) ; Esdaile v. Sowerby, 11 East,
R. 114 ; Story on Bills, § 326, 346 ; Boultbee v. Stabbs, 18 Ves. 21.
4 Story on Bills, § 347 ; Ante, § 203 ; Pothier, De Change, n. 147 ;
Savary, Le Parfait Negotiant, Tom. 2, Parere 45, p. 360.
5 Chitty on Bills, ch. 8, p. 389, (8th edit.) ; Ante, § 241.
320 PROMISSORY NOTES. [CH. VI.
presentment should be made, and payment demanded,
at the dwelling-house of the deceased ; 1 unless, indeed,
the Note were originally made payable at some particu-
lar place, for then it will be sufficient, that presentment
is made at that place. 2 In either case, the omission will
generally be fatal to the claims of the holder against
the indorser. 3 The American authorities are not, indeed,
uniform upon this point ; but the law of England, which
is asserted in the text, is that which generally prevails
in a great majority of the American States. 4
§ 254. The French Law is precisely coincident with
the law of England upon the necessity of a due pre-
sentment, and demand of payment, in case of the death
of the maker; for, in such a case, the protest for non-
1 Chitty on Bills, ch. 7, p. 307, (8th edit.) ; Id. ch. 8, p. 360 ; Id. ch. 9,
p. 401 ; Ante, § 241.
2 Ante, § 226-232 ; Chitty on Bills, ch. 9, p. 401, (8th edit.) ; Story
on Bills, § 362 ; Philpott v. Bryant, 1 Mood. & Roll. 754 ; 3 Carr. &
Payne, 244 ; 4 Bing. R. 717 ; Price v. Young, 1 Nott & McCord, 438 ;
Story on Bills, § 305, 326, 362 ; Molloy, B. 2, ch. 10, § 34; Thomson on
Bills, ch. 6, § 4, p. 501, (2d edit.)
3 Ibid.
4 In Massachusetts, in the case of Hale v. Burr, 12 Mass. R. 86, the
Court held, that if, at the maturity of a Note, the maker was dead, no de-
mand need be made upon the executor or administrator of the deceased for
payment, if the maturity of the Note was after the appointment and quali-
fying of the executor or administrator, but before the expiration of the year
from the appointment ; because, if made within the year, the executor or
administrator was not by the laws of Massachusetts bound to pay the Note.
But quaere, if this be a satisfactory reason. In the first place, the executor
or administrator might, if he had ample assets, pay the Note to avoid the
running of interest ; and, in the next place, the contract of the indorser is
conditional, that he will pay the Note, if duly presented and not paid at its
maturity. The fact that it may not, or will not be paid by the maker at its
maturity, does not in other cases dispense with the obligation implied by law
on the part of the holder to make due presentment. Why should it in the
case of the death of the party? The French Law, as we shall imme-
diately see, is against the Massachusetts decision. Pothier, De Change,
n. 146 ; Ante, § 241 ; Post, § 254.
CH. VI.] PRESENTMENT FOR PAYMENT. 321
payment (which is equally required by the French Law
in cases of Notes and of Bills) must still be made, and the
answer of the widow and heirs of the deceased, declin-
ing payment, be inserted in the protest, and then it will
be equivalent to a refusal by the maker, and bind the
indorsers. 1 If the deceased has not left at his domicil
any widow or heirs, still the holder must make the pro-
test, and state. in it, that he has made a presentment at
the domicil. 2
§ 255. In the case of a partnership Note, (as we have
already seen, 3 ) it will be sufficient to make a present-
ment and demand upon either of the partners, either
personally, or at the place of business of the firm, or at
the dwelling-house of either partner; for each represents
the firm. It is, or at least it may be otherwise, (as has
been already suggested, 4 ) in cases of joint makers, who
are not partners ; for then a presentment and demand
may be required to be made of each separately, since a
dishonor by one is not in such case necessarily a dis-
honor by both, and neither is presumed to have author-
ity to act for the other. If it be said, that the makers
may reside at a distance from each other, and therefore
it may be impracticable to make a demand on each on
the day of the maturity of the Note ; it may be answered
that if impossible to make a demand on the same day
on each, that may excuse punctuality as to the time of
the demand ; and the inclorser, by indorsing a joint Note,
submits to meet and abide by that difficulty, if a pre-
1 Pothier, De Change, n. 146.
2 Pothier, De Change, n. 144.
3 Ante, § 239, and note ; Bayley on Bills, ch. 7, § 285, 286, (5th edit.) ;
Story on Bills, § 305, 326, 362.
4 Ante, § 239 ; Per Nelson, C. J., in Willis v. Green, 5 Hill, N. Y. R.
232 ; Shepard v. Hawley, 1 Connect. R. 367.
322 PROMISSORY NOTES. [CH. VI.
sentment is made as soon, as it reasonable can be, as be
does in many other cases, where a due presentment is
impossible. 1 But as the indorser, by his indorsement of
a joint Note, has a right to rely upon the joint respon-
sibility of both, and therefore may reasonably be sup-
posed to insist upon a dishonor by both before he is
called upon for payment, there would seem to be
strong ground to insist, that a joint dishonor should be
established before the indorser should be liable. 2
§ 256. In the case of the death of one partner of a
firm, before a Promissory Note of the firm has arrived
at maturity, presentment and demand of payment
should be made of the surviving partners of the firm, and
not of the executor or administrator of the deceased ;
1 Story on Bills, § 233, 234, 308, 326, 365 ; Chitty on Bills, ch. 9,
p. 389, 422, 423, (5th edit.) ; Id. ch. 10, p. 485-488, 522 ; Freeman v.
Boynton, 7 Mass. R. 483.
2 Ante, § 239. The case of Harris v. Clark, 10 Ohio R. 5, was a case
where the Note was joint and several, and, of course, where the holder
was at liberty to treat as the several Note of each maker, and so a demand
upon one of the makers and dishonor would properly bind the indorsers.
But the reasoning of the Court went beyond the case, and treated all joint
promisors as partners pro hac vice. This is certainly not true in relation
to joint payees, for neither can indorse for the other, as one partner may
for all. The case of Shepard v. Hawley, 1 Connect. R. 368, shows that
a notice of dishonor to one of two joint indorsers of a Note does not bind
the other. See, also, 3 Kent. Comm. Lect. 44, p. 105, note b ; Bank of
Chenango v. Root, 4 Cowen, R, 126. In Willis v. Green, 5 Hill, N. Y.
R. 232, 234, Mr. Chief Justice Nelson said ; " I do not see but the case of
joint indorsers, not partners, stands on the same footing, as that of joint
makers of a Note who are not partners ; and in respect to them it is settled,
that presentment must be made to each, in order to charge the indorser.
The argument is about as strong, both upon reason and analogy, in favor
of giving effect to a demand upon one of the co-makers, as it is in favor of
giving effect to a notice to one of the co-indorsers. The question has been
very fully and satisfactorily examined by the Supreme Court of Errors in
Connecticut, and a decision made in conformity with these views. Shepard
v. Hawley, 1 Connect. R. 367." [So also in Pennsylvania, Sayre v.
Frick, 7 Watts & Sergeant, R. 383.]
CH. VI.] PRESENTMENT FOR PAYMENT. 323
for the surviving partners alone are in such cases liable
at law for the payment of the Note ; and, of course, as
the duty devolves on them, the holder should apply to
them therefor. 1 The same rule will apply to joint
makers, where one of them dies before the maturity of
the note ; and the presentment should, under such cir-
cumstances, be made to the surviving maker or makers
thereof; for then the debt is at law the debt of the sur-
vivors only. It may be different in this last case,
where the Note is the several, as well as the joint Note
of the makers ; for then the holder is at liberty to elect,
upon whom he will make the demand and presentment.
1 Cayuga County Bank v. Hunt, 2 Hill, N. Y. R. 635 ; Story on Part.
§ 361, 362 ; Story on Bills, § 362.
324 PROMISSORY NOTES. [CH. VII.
CHAPTER VII.
EXCUSES FOR NON-PRESENTMENT OF PROMISSORY NOTES.
§ 257. In the sixth, place, as to what will constitute
a sufficient excuse for non-presentment and demand at
the time and place, when and where the Promissory
Note is due and payable. We have already had occa-
sion to allude to this subject in another connection; 1
but it requires to be more fully and exactly stated in
this place. The excuses may be general and applicable
to all persons, who are indorsers ; or, they may be special
and applicable to a particular indorser only. Among
the general excuses, the following are commonly stated
as causes, which will excuse the want of due present-
ment; (1.) Inevitable accident, or overwhelming cala-
mity; (2.) The prevalence of a malignant disease, which
suspends the ordinary operations of business; (3.) The
presence of political circumstances, amounting to a vir-
tual interruption and obstruction of the ordinary nego-
tiations of trade, called the vis major ; (4.) The break-
ing out of war between the country of the maker and
that of the holder; (5.) The occupation of the country,
where the parties live, or where the Note is payable, by
a public enemy, which suspends commercial intercourse;
(6.) Public and positive interdictions and prohibitions
of the state, which obstruct or suspend commerce and
1 Ante, $ 205, 206.
CH. vil] excuses for non-presentment. 325
intercourse; (7.) The utter impracticability of finding
the maker, or ascertaining his place of residence. Among
the special excuses may be enumerated the following :
(1.) The receiving the Note by the holder from the
payee, or other antecedent party, too late to make due
presentment; (2.) The Note being an accommodation
Note of the maker, for the benefit of a particular in-
dorser ; (3.) Special agreements between the holder,
and an antecedent indorser, waiving the presentment
and demand ; (4.) The receiving of security by an in-
dorser to indemnify himself against loss, or to enable
him to take up the Note at its maturity; (5.) The re-
ceiving of the Note by the holder from an indorser, as
collateral security for another debt; (6.) A promise by
an indorser to pay the Note, after a full knowledge, that
it has not been duly presented for payment by the
holder.
§ 258. Of each of these cases, a few brief illustrations
may suffice. In the first place, as to inevitable acci-
dent or overwhelming calamity. In this category may
be placed the cases, where all intercourse is stopped be-
tween the places, where the holder and the maker live ;
as, for example, by running ice, by freshets, or the carry-
ing away of bridges, when they live in towns on the
opposite banks of a river ; or by violent snow storms,
obstructing and rendering impassable the roads to and
from the towns, where they dwell ; by tornadoes, or
earthquakes, prostrating, for a short time, all the ordi-
nary means of communication. 1 It has been truly ob-
served by a learned author, that there is no positive
1 Story on Bills, § 308 ; Chitty on Bills, ch. 9, p. 422, (8th edit.) ; Id.
eh. 10, p. 485, 486 ; Thomson on Bills, ch. 6, § 1, p. 415, (2d edit.) See
Schofieldu. Bayard, 3 Wend. R. 488 ; Ante, § 205.
PROM. NOTES. 28
326 PROMISSORY NOTES. [CH. VIL
authority in our law, which establishes any such inevi-
table accident, or overwhelming calamity, to be a suffi-
cient excuse for the want of a due presentment. 1 But
it seems justly and naturally to flow from the general
principle, which regulates all matters of presentment
and notice in cases of negotiable paper. The object in
all such cases is, to require reasonable diligence on the
part of the holder; and that diligence must be measured
by the general convenience of the commercial world,
i Chitty on Bills, ch. 10, p. 485, note (/), (8th edit.) ; Story on Bills,
§ 308, 327, 365. Mr. Chitty in this note says ; " There is no reported
case, deciding, whether accident will excuse a delay in giving notice of
non-acceptance or non-payment. In Hilton v. Shepard, 6 East, R. 16,
in notes, Garrow and Russell contended, that, whether due notice has been
given in reasonable time must, from the necessity of the thing, be a ques-
tion of fact for the consideration of the jury ; that it depended upon a
thousand combinations of circumstances, which could not be' reduced to
rule ; if the party were taken ill, if he lost his senses, if he were under
duress, &c, how could laches be imputed to him? Suppose he were pre-
Tented from giving notice, within the time named, by a physical impossi-
bility. Such a rule of law must depend upon the distance, upon the course
of the post, upon the state of the roads, upon accidents, all of which it is
absurd to imagine. Lord Kenyon, C. J. ; 'I cannot conceive how this can
be a matter of law. I can understand , that the law should require, that due
diligence shall be used, but that it should be laid down, that the notice
must be given that day or the next, or at any precise time, under whatever
circumstances, is, I own, beyond my comprehension. I should rather have
conceived, that, whether due diligence had or had not been used, was a
question for the jury to consider, under all the circumstances of the acci-
dent, necessity, and the like. This, however, is a question very fit to be
considered, and when it goes down for trial again, I shall advise the jury
to find a special verdict. I find invincible objections, in my own mind, to
consider, that the rule of law, requiring due diligence, is tied down to the
next day.' In Darbishire v. Parker, 6 East, 3, it was held, that reason-
able time is a matter of law for the Court." It is observable, that he is
here speaking of notice of the dishonor of a Note or Bill. In a prior page
(p. 422), he applies the same rule to cases of non-presentment, and, there-
fore, it is apparent, that he supposes no distinction to exist between the
rule applicable to the one and to the other. The case of Patience v.
Townley, 2 Smith, R. 223, 224, seems to me fully to sustain the doctrine.
Ante, § 205.
CH. VII.] EXCUSES FOR NON-PRESENTMENT. 327
and the practicability of accomplishing the end required
by ordinary skill, caution, and effort. Due presentment
must be interpreted (as Lord Ellenborough said) to mean
presented according to the custom of merchants, which
necessarily implies an exception in favor of those un-
avoidable accidents, which must prevent the party from
doing it within regular time. 1
§ 259. Upon such a subject, we listen to the doctrines
of Foreign Law with almost implicit confidence, not
only because it is from that law, that we derive the pri-
mative principles, which regulate it; but because the
inquiry is one, which concerns the interests of all com-
mercial nations, and is not, and ought not to be, bounded
by the rules arising under the mere municipal jurispru-
dence of the Common Law. 2 Pothier speaks upon this
subject in the most direct terms. In treating of the
necessity of a due presentment and protest of Bills and
Notes, (for a protest is required by the French Law in
both cases,) he says, that if, by any superior and unfore-
seen force, (the common phrase of the civilians to indi-
cate inevitable accidents, and irresistible power,) the pro-
test cannot be made upon the day, when it ought, the
omission of making it on that day will not deprive the
holder of his right of recourse or guaranty over against
the other parties ; for the holder is never bound to im-
1 Patience v. Townley, 2 Smith, R. 223, 224.
2 It is well known, that by the strict principles of the Common Law, if
a contract becomes incapable of being performed by any inevitable acci-
dent or casually, that constitutes, in many cases, no excuse for the non-
performance thereof. Paradine v. Jane, Aleyn, R. 26, 27, is an illustra-
tion of the general principle. See, also, the authorities cited in Story on
Bailm. fy 36 ; 1 Story on Eq. Jurisp. § 101, 102 ; 2 Story on Eq. Jurisp.
§ 1303 ; Cutter v. Powell, 6 Term R. 320 ; Atkinson v. Ritchie, 10 East,
R. 530 ; Barker v. Hodson, 3 Maule & Selw. 267.
328 PROMISSORY NOTES. [CH. VII.
possibilities ; and that it will be sufficient if he does
make it within such, time afterwards, as the Judge shall
deem reasonable. 1 He illustrates the doctrine by stating
the case of the holder, transmitting a Bill of Exchange
to a correspondent at a distant city for presentment and
payment, who dies suddenly upon the eve of the time,
when the Bill ought to be paid or protested for disho-
nor; and he holds that, in such a case, it will be suffi-
cient if the Bill is afterwards presented for payment
within a reasonable time after the holder is informed of
the accident, and is enabled to give orders to receive
the money. 2 Pothier puts the case of the sudden ill-
ness of the holder, or of his agent, which prevents a due
presentment of the Bill, upon the same broad and ge-
neral foundation ; and says that it will be sufficient, if
done within a reasonable time afterwards. 3 Pardessus
affirms the modern law in France to be the same. 4 It
is also the law of Scotland. 5
$ 260. In the next place, as to the prevalence of a
malignant disease. The same principle would seem here
to apply, as in the case of inevitable accident and cas-
ualty, if the disease be so extensively prevalent or so
malignant as to suspend all commercial business and
intercourse ; such as, for example, the prevalence of the
plague, or of the yellow fever, or of the Asiatic cholera,
to such an extent as make it immediately hazardous to
life to enter into the infected district. 6 But here, again,
1 Pothier, De Change, n. 144.
2 Ibid. 3 ibid.
4 Pardessus, Droit Comra. Tom. 2, art. 422, 426, 434.
5 Thomson on Bills, ch. 6, §2, p. 452, note, (2d edit.); Id. § 1, p. 414, 415.
6 See Tonno v. Lague, 2 John. Cas. 1. Contra, Roosevelt v. Wood-
hull, Anthon, Nisi Prius R. 35. See, also, Barker v. Hodgson, 3 Maule
& Selw. 267.
CH. VII.] EXCUSES FOR NON-PRESENTMENT. 329
the Common Law authorities do not appear to speak
directly and conclusively on the point. 1
§ 261. In the next place, the presence of political cir-
cumstances, amounting to a virtual interpretation of the
ordinary negotiations of trade. This is governed by
the same rule as the preceding cases, and is equally sup-
ported by the foreign authorities, and treated as falling
within the predicament of the vis major. 3 Upon this
ground, founded upon a close analogy to the vis major,
it has been accordingly held, that if the due present-
ment of a Bill or Note is rendered impossible or immi-
nently dangerous by the political circumstances and
perils of the town or city, where and when it is payable,
that constitutes of itself a sufficient excuse ; as, for ex-
ample, if the place be blockaded, or in danger of imme-
diate invasion or occupation by the enemy, or the scene
of a battle, flagrante hello?
§ 262. In the next place, the existence of open war
between the country where the holder is domiciled, and
the country where the Note is payable, or the maker is
domiciled, and, as falling within the like predicament,
the occupation of the latter country by the enemy. This
constitutes a clear and admitted exception ; for war be-
tween the two countries, (and if one is in the temporary
occupation of the enemy, it is during that period deem-
ed an enemy's country,) all commercial intercourse and
trade and business between the subjects is suspended,
and indeed prohibited, during the war, or hostile occu-
i See Thomson on Bills, ch. 6, $ 1, p. 414, 415, (2d edit.) ; Id. § 2,
p. 452 ; Pothier, De Change, n. 144.
2 Pointer, De Change, n. 144 ; Pardessus, Dioit Comm. Tom. 2, art.
422, 424.
3 Patience v. Townley, 2 Smith, R. 223, 224.
28*
330 PKOMISSORY NOTES. [CH. VII.
pation. 1 This is now the universally recognized doc-
trine ; and, consequently, it constitutes a sufficient just-
ification of the omission to make due presentment of
the Note during the period of the suspension, or the
prohibition of such intercourse.
§ 263. In the next place, the public interdiction and
prohibition of commerce between the country of the
holder and that of the maker. This is governed by the
same principles as the preceding, and requires no par-
ticular illustration, since it is plain that no subject of
any country can be compellable to do any act, which
violates the law of that country, in order to protect rights
which he is not otherwise at liberty to seek or to en-
force.
§ 264. In the next place, the utter impracticability
of finding the maker, or ascertaining his place of resi-
dence. This, of course, constitutes a sufficient ground
to excuse a due presentment of the Note for payment
at its maturity ; for the plain reason, that due diligence
only is, or can be, required of the holder, to make such
presentment. If, therefore, the maker has absconded,
or is concealed, or cannot, after due inquiries, be found ;
or if he has removed his place of domicil to another
state or country, since the Note was given, the holder
is dispensed from the necessity of any other efforts to
make a presentment, since the law does not require him
to do vain acts, or to pursue the maker into foreign
countries. 2 [But, where a Note, specifying no place of
1 1 Kent,Comm. Lect. 3, p. 66-71, (5th edit.) ; Potts v. Bell, 8 Term
R. 548 ; The Rapid, 8 Cranch, R. 155; Willison v. Patterson, 7 Taunt.
R. 439 ; Griswold v. Waddington, 15 John. R. 57 ; S, C. 16 John. R.
438 ; Scholefield v. Eichelberger, 7 Peters, R. 586 ; Patience v. Townley,
2 Smith, R. 223, 224 ; Hopkirk v. Page, 2 Brock. R. 20.
2 Ante, § 205, 236, 238, 241 ; Story on Bills, § 327, 346 ; Stewart v.
CH. VII.] EXCUSES FOR NON-PRESENTMENT. 331
payment, was made and indorsed in the State of New
York, and the maker and indorser resided in a foreign
country, and continued to reside there when the Note
fell due, their place of residence being known to the
payee and holder, both when the Note was given and
when it matured, it was held, by the Court of Appeals
of New York, that presentment of the Note to the maker,
demand of payment from him, and notice to the indorser,
were necessary to charge the latter. 1 ]
§ 265. Passing from these, let us now glance at the
other class of excuses, those of a special character. And
in the first place, the receiving of the Note so near the
time of its maturity, as that it becomes impracticable to
present it in clue season. It is obvious that this excuse
can properly apply only as between the immediate par-
ties, who have transferred and received the note within
such a brief period. For, as to other antecedent parties,
who transferred it long enough to have a due present-
ment made, they have a right, as to all subsequent
holders, to stand upon the very terms of their original
contract ; and it is the folly of such holders to take the
Note so late, as that they cannot fulfil the obligations
imposed by law upon them. 2 But, as between the last
Eden, 2 Caines, R. 121 ; Galpin v. Hard, 3 McCord, R. 394 ; McGruder
v. Bank of Washington, 9 Wheat. R. 598.
1 Spies v. Gilmore, 1 Comstock, R. 321 ; Taylor v. Snyder, 3 Denio,
R. 151.
2 See Ante, § 201 ; Story on Bills, § 325, 344 ; Chitty on Bills, ch. 9,
p. 402, 421, 423, (8th edit.) ; Id. ch. 10, p. 465, 467 ; Bayley on Bills,
ch. 7, § 1, p. 243, 247, (5th edit'.) ; Lenox v. Roberts, 2 Wheat. R. 373 ;
Mills v. Bank of United States, 11 Wheat. R.431; Robinsons. Blen,
2 Appleton, R. 109. Upon this subject, Mr. Chitty says ; " But the
circumstance of the holder having received a Bill very near the time of its
becoming due constitutes no excuse for a neglect to present it for payment
at maturity, for he might renounce it if he did not choose to undertake
332 PROMISSORY NOTES. [CH. VII.
holder and his immediate indorser, it is obvious that, as
each knows the impracticability of a due presentment,
each must, under such circumstances, be presumed to
agree, that a strict compliance shall be waived, and that
it shall be sufficient for the holder to make a present-
ment within a reasonable time. Any other doctrine
would enable the holder of a Note to prolong, at his
pleasure, the responsibility of the antecedent indorsers
beyond the maturity of the Note. Thus, for example,
if the payee of a Note, payable sixty days after date,
should, on the day of its date, transfer the note by in-
dorsement to a person, who should live at a great dis-
tance from the domicil of the maker, or the place of
payment, and the latter should retain it in his possession
until the eve of its maturity, and should then transfer
it to another indorser at such a distance from the place
or domicil, that a due presentment was impossible, as
between these parties a reasonable future time for pre-
sentment would be naturally implied, as a part of the
negotiation. 1 But the same implication would not exist
that duty, and send the Bill back to the party from whom he received it ;
but if he keep it he is bound to use all reasoiable and due diligence in pre-
senting it. And, therefore, where the plaintiff, in Yorkshire, on the :26th.
of December, received a Bill of Exchange, payable in London, which
became due on the 28th, and kept it in his own hands until the 29th, when
he sent it by post to his banker's in Lincoln, who duly forwarded it to
London for presentment, and the Bill was dishonored, it was held, that
the plaintiff had by his laches lost his remedy against the drawer and
indorsers. But it has been considered in France, that if an indorser him-
self transfer a Bill so late to the holder as to render it impraciicable to
present it precisely at maturity, he cannot take advantage of a delay in
presentment so occasioned by himself, though the prior indorsers and the
drawer may." Chitty on Bills, ch. 9, p. 423, (8th edit.) See, also,
Anderlon v. Beck, 16 East, R. 248, cited Bayley on Bills, ch. 7, § 1,
p. 243, (5th edit.)
i See Anderton v. Beck, 16 East, R. 248.
CH. VII.] EXCUSES FOE NON-PRESENTMENT. 333
as to the payee ; for, as to him, it was the duty of his
immediate indorsee, and of all subsequent holders, to
present the Note for payment at its maturity ; other-
wise, the payee would be discharged. 1
§ 266. The rules which have been applied to Notes,
payable on demand, and to banker's Notes, and other
circulating negotiate securities of the like nature, suffi-
ciently establish the same principle. Each successive
holder of such Notes is bound to present the same within
a reasonable time after he receives the same for payment;
and each successive transferrer thereof, ordinarily, by
indorsement or delivery, undertakes to pay only, if upon
presentment within a reasonable time, after he has parted
with the same, his immediate holder, or any subsequent
party claiming under him, presents the same within such*
reasonable time, as the immediate holder ought to pre-
sent the same. 2
§ 267. The same doctrine, as to the duty of the holder,
and the responsibility of antecedent indorsers, where
the Note is received so near its maturity, as not to be
capable of being duly presented at that time for pay-
ment, is laid down by Pardessus as the clear result of
the French Law. He says, that it may so happen, that
a Bill of Exchange (and the same rule applies to a
Note) is transmitted so late, that he who receives it has
1 A doctrine far more broad was entertained by the Court, in Freeman v.
Boynton, 7 Mass. R. 483, 485, where the Court seemed to think that if
the holder of the Note lived at a considerable distance from the place
of domicil of the maker, a reasonable time should be allowed to him to
transmit the Note to the place, where payment should be demanded after
the Note became due. But this expression of opinion was not called for
by the circumstances of the case ; and, upon general principles, it seems
not maintainable.
2 Chitty on Bills, ch. 9, p. 413, 414, 421, (8th edit.) See Ante, § 229,
note.
334 PROMISSORY NOTES. [CH. VII.
not sufficient time, even employing the greatest dili-
gence, to present or protest it in due season. In this
event, as between him and his indorser, the holder is
entitled to consider this as an exception in his favor, as
to diligence, as to which the proper tribunal will judge
under all the proofs and circumstances. But this will
in no respect interfere with the rigl^s of the other par-
ties in interest, to avail themselves of the legal effect of
the neglect. 1 And the same rule is equally applicable
to the case of a Bill, indorsed after it has fallen due. 2
Pothier adopts and maintains the same doctrine ; 3 and
he adds, that in such cases the drawer and precedent
indorsers of the Bill may insist upon the neglect to
make a due presentment and protest, since it is not in
the power of any subsequent indorser to deprive them
by such indorsement of this ground of defence. 4
§ 268. In the next place, that the Note is an accom-
modation Note by the maker, for the benefit of a par-
ticular indorser. In such a case, this is a sufficient
excuse for the want of a due presentment to the maker,
so far as respects the particular indorser, for whose be-
nefit it is made ; since, in truth, as between him and the
maker, he is the proper party and primary debtor to
pay the Note. 5 But as to all other indorsers the oinis-
1 Pardessus, Droit Comm. Tom. 2, art. 426.
2 Ibid.
3 Poihier, De Change, n. 141.
4 Ibid.
5 See Bayley on Bills, ch. 7, § 1, p. 217, (5th edit.) ; Id. ch. 9, p. 343 ;
Chitty on Bills, ch. 10, p. 468-471, (8th edit.) ; Walton v. Watson, 13
Martin, R. 347 ; Sharp v. Bailey, 9 Barn. & Cressw. 44 ; Norton v. Pick.
ering, 8 Barn. & Cressw. 610 ; Agan v. McManus, 11 John. R. 180 ;
Chandler v. Mason, 2 Verm. R. 193 ; Story on Bills, § 370 ; Terry v.
Parker, 6 Adolph. & Ellis, 502.
GH. VII.] EXCUSES FOR NON-PRESENTMENT. 335
sion will be fatal. 1 The reason is, that the accommo-
dated indorser, in such a case, can suffer no injury or
loss by reason of the want of a due presentment ; since,
if it had been dishonored, and he had been obliged to
pay it, he could have no recourse over against the
maker, any more than a drawer of a Bill of Exchange
would have against .his accommodation acceptor, in case
of a dishonor by the latter. 2 We have seen that the
indorser of a Note stands generally in the same relation
to the maker, as the drawer of a Bill does to the ac-
ceptor. The same rule, indeed, applies in these cases,
as does apply to cases, where notice is omitted to be
given to the indorser, or drawer, under the like circum-
stances ; of which we shall treat hereafter. 3
§ 269. It will be at once perceived, that the doctrine,
which governs in all these cases of accommodation mak-
1 Ibid. ; Cory v. Scott, 3 Barn. & Aid. 619 ; Norton v. Pickering,
8 Barn. & Cressw. 610 ; Warder v. Tucker, 7 Mass. R. 449 ; Agan v.
McManus, 11 John. R. 180.
2 Ibid.
3 Mr. Chitty, on this subject, says; "But if the Bill was accepted for
the accommodation of the drawer, and he expressly or impliedly engaged
to pay it, or if the drawer of a Bill, from the time of making it to the
time when it was due, had no effects or property whatever in the hands of
the drawee or acceptor, and had no right, upon any other ground, to ex-
pect, that the Bill would be paid by him, or any other party to the Bill, he
is prima facie not entitled to notice of the dishonor of the Bill ; nor can he
object, in such case, that a foreign Bill has not been protested. In this
case, the drawer, being himself the real debtor, acquires no right of action
against the acceptor by paying the Bill, and suffers no injury from want of
notice of non-acceptance or non-payment, and, therefore, the laches of the
holder affords him no defence. And therefore, where the drawer had
supplied the drawee with goods on credit, which did not elapse until after
the Bill would fall due, and the drawer had no right to draw the Bill,
it was held, that he was not discharged by the want of notice of non- pay-
ment." Chitty on Bills, ch. 10, p. 468, 469, (8th edit.) ; Id. p, 470, 471,
481.
336 PROMISSORY NOTES. [CH. VII.
ers, is, therefore, precisely the same which regulates
accommodation acceptances. Each supposes that the
party, for whose benefit the Bill or Note is accepted or
made, has no funds in the hands of the acceptor or
maker ; and therefore the same common excuse for non-
presentment applies, that no funds exist which are ap-
propriated to the payment thereof. 1 Still, however, in
common cases of accommodation acceptances and Notes
it may be open for the drawer or indorser, to show, if he
can, that he has, in point of fact, sustained damage or
loss from the want of due presentment or notice, and to
the extent thereof it would seem that he ought to be
exonerated. 2
§ 270. In the modern French Law a similar doctrine
prevails (as, indeed, it did in the old law,) in relation to
i Story on Bills, § 367 and note, 369, 370 ; Chitty on Bills, ch. 9, p. 389,
(8th edit.); Id. ch. 10, p. 467-482 ; Bayley on Bills, ch. 7, § 2, p. 294-
300, (5th edit.)
2 Fitzgerald v. Williams, 6 Bing. New Cas. 68; Chitty on Bills, ch. 10,
p. 481, 484, 485, (8th edit.) Mr. Chitty (p. 481) says ; " The proof that
the drawer had no effects in the hands of the drawee, only affords a prima,
facie excuse for the want of due notice of the dishonor, and it may be
rebutted by its appearing, that the drawer, on taking up the Bill, would be
entitled to some remedy over against some other party, as a right to sue
the acceptor or any other party, or by showing, that he has been actually
prejudiced by the want of notice ; as, if the Bill were drawn for the accom-
modation of the acceptor, or payee, or indorser. And there is a distinction
as to the necessity for notice to the drawer of a dishonored Bill, when
accepted for the accommodation of the drawer in a single transaction, and a
case of various dealings, the excess for the accommodation of the drawer
or acceptor ; in the latter case, notice is equally necessary, without actual
effects. So, where W. drew a Bill upon a person to whom he had been
sending goods for sale, and who accepted the Bill, neither party knowing
the state of accounts between them, and it turned out that W. at the time,
was indebted to the drawee, yet the Court held, that this was not to be
considered as an accommodation Bill, within the acceptation of that term,
and, consequently, that there was no implied contract of indemnity as to
costs."
CH. VII.] EXCUSES FOR NON-PRESENTMENT. 337
eases where there is an acceptance for the accommoda-
tion of the drawer of a Bill, or by the making of a Note
for the accommodation of the indorser. In each case,
the fact is a sufficient excuse for not making due pre-
sentment upon the very ground, that no fund or provi-
sion has been made by the drawer or indorser for the due
discharge of the Bill. 1 Thus, for example, if the drawer
has not furnished funds [provision) for the payment of
the Bill, or the indorser, for whose benefit the Note was
made, has not supplied funds to the maker to discharge
it at maturity, that will be a sufficient excuse for the
want of due presentment and protest, as well as for the
want of due notice. 2
§ 271. In the next place, as to cases of a special
agreement between the holder and a particular indorser,
waiving due presentment of the Note. This proceeds
upon the well known maxim : Quilibet potest remmciare
juri pro se introdudo. 2. If the agreement is prior to the
maturity of the Note, it necessarily amounts to a dis-
pensation from a due presentment of the Note ; and it
would operate as a fraud upon the holder, if the objec-
tion were available afterwards, since he may have regu-
lated his conduct, as to the neglect, in consequence of
his confidence in the agreement. 4 In such a case, it
would not seem to make any difference, whether the
1 Pardessus, Droit Comra. Tom. 2, art. 392, 435 ; Story on Bills, § 368 ;
Pothier, De Change, n. 156, 157 ; Story on Bills, § 478 and note ; Kem-
ble v. Mills, 1 Mann. & Grang. 762, note (b).
2 Ibid. ; Code de Coram, art. 117, 169-171.
3 2 Inst. 183 ; Wingate's Maxims, 483 ; Branch's Maxims, 179 ; Cen-
tral Bank v. Davis, 19 Pick. R. 373, 375 ; Taunton Bank v. Richardson,
5 Pick. R. 436.
4 See Lincoln and Kennebec Bank v. Page, 9 Mass. R. 155 ; Fuller v.
McDonald, 8 Greenl. R. 213 ; Berkshire Bank v. Jones, 6 Mass. R. 524 ;
Backus v. Shipherd, 11 Wend. R. 690 ; Story on Bills, § 371, 373 ;
PROM. NOTES. 29
338 PKOMISSORY NOTES. [CH. VII.
agreement were for a valuable consideration or not;
since, if it were not held obligatory, it would be a mani-
fest detriment to the holder, occasioned by the fraud or
breach of faith of the indorser. But if the agreement
were contemporaneous with the origin of the title of the
holder, there it might assume the positive form of a
valid obligation, operating ex contractu upon a sufficient
consideration. 1
§ 272. Agreements of this sort are always construed
strictly, and are not extended beyond the fair import of
the terms. 2 Thus, for example, an agreement to waive
notice of the dishonor of the Note will be no excuse for
the want of a due presentment of the Note to the maker
for payment. 3 So, an undertaking by an indorser, by a
written memorandum, as follows: "I do request, that
hereafter any Notes that may fall due at the Union
Bank, on which I am or may be indorser, may not be
protested, as I will consider myself bound in the same
manner as if the same had been legally protested," — -
has been held to be so ambiguous and doubtful, whether
it meant to import a waiver of demand and notice, or
not ; and that it required other evidence to prove the
intention to make such a waiver. 4 [But where an in-
Johnston v. Searey, 4 Yerger, R. 182 ; Barker v. Parker, 6 Pick. R. 80 ;
Thornton v. Wynn, 12 Wheat. R. 183 ; Leffingwell v. White, 1 John.
Cas. 99 ; Story on Bills, § 373; Norton v. Lewis, 2 Connect. R. 478 ;
Boyd v. Cleveland, 4 Pick. R. 525 ; Coddington v. Davis, 3 Denio, R. 19.
1 Ibid. ; Leonard v. Gary, 10 Wend. R. 504 ; Boyd v. Cleveland, 4
Pick. R. 525 ; Leffingwell v. White, 1 John. Cas. 99.
2 Berkshire Bank v. Jones, 6 Mass. R. 524 ; Central Bank v. Davis,
19 Pick. R. 373 ; Union Bank v. Hyde, 6 Wheat. R. 572 ; Creamer v.
Perry, 17 Pick. R. 332 ; Backus v. Shipherd, 11 Wend. R. 629 ; Lane
v. Steward, 2 Appleton, R. 98 ; Chitty on Bills, ch. 9, p. 390, (8th edit.) ;
May v . Coffin, 4 Mass. R. 341 ; Pardessus, Droit Comm. Tom. 2, art. 433.
3 Ibid. ; Post, $ 367.
4 Union Bank v. Hyde, 6 Wheat. R. 572.
CH. VII.] EXCUSES FOR NON-PRESENTMENT. 339
dorser of a Note had been preferred in respect to his
liability, in an assignment made by the maker for the
benefit of his creditors, and had transferred to the holder
his interest under the assignment, and afterwards, while
the Note was running to maturity, wrote to the holder,
saying, " You need not protest T. B. C.'s Note, due, &c.
for, &c. and I will waive the necessity of protest there-
of," this was held sufficient to dispense with a present-
ment and notice of non-payment. 1 ] In all these cases,
however, the agreement will not bind any indorsers,
except those who are parties to it, or have sanctioned it.
§ 273. The French Law embodies, substantially, the
same doctrine, with the same limitations, at least when
the circumstances clearly establish a dispensation with
the necessity of a due presentment. 2 If the drawer of
a Bill, or the indorser of a Note, at its original forma-
tion, adds to his signature or indorsement, that the Bill
or Note, upon its dishonor, may be returned without
protest, (which is usually expressed in the brief terms
retour sans proiet, or sans frais,) the holder, by such a
clause, is dispensed from the necessity of making a for-
mal demand and protest for non-payment thereof. 3 So,
if afterwards, and before the maturity of the Note, he
dispenses with the necessity of a protest, that will ex-
cuse a due presentment. But then the dispensation
must be express and clear ; for a mere promise to pay
before the maturity of the Note is not, of itself, held to
amount to a dispensation ; but the waiver of the neces-
sity of a protest must be direct. 4
§ 274. In like manner, in many cases, by our law, a
1 Coddington v. Davis, 3 Denio, R. 17.
2 See Pardessus, Droit Comm. Tom. 2, art. 433, 437.
3 Pardessus, Droit Comm. 2, art. 425.
4 Pardessus, Droit Comm. Tom. 2, art. 433.
340 PROMISSORY NOTES. [CH. VII.
waiver, after the maturity of the Note, of the objection
of the want of due presentment and demand, like that
of the want of due notice, may also, it seems, be effect-
ual to bind an indorser, who assents to it. 1 Thus, for
example, a new promise after such default, with a full
knowledge of all the circumstances, will amount to a
waiver of the objection, and entitle the holder to reco-
ver against the indorser, who has so promised to pay,
although it will be inoperative as to other indorsers. 2
In terms, the French Law does not seem to allow a
simple new promise after the maturity of the Note, any
more than before, to have the effect of such a waiver ;
but the terms must be express and direct, unless, indeed,
the holder is misled thereby to his injury. But a pay-
ment of the Note, with such knowledge of the default,
could not be recalled. 3
§ 275. But, in order to make such a waiver binding
it must be clearly established, and deliberately made,
after a full knowledge of the facts ; for, as we shall pre-
sently see, it will not be presumed or implied from
doubtful circumstances, or sudden acknowledgments, or
hasty expressions, made in cases of surprise or unex-
pected demand. 4 Even when such a waiver is clearly
established, it has been thought by some of the Ameri-
i Story on Bills, § 327, 373 ; Chitty on Bills, ch. 9, p. 390, 8th edit.) ;
Id. ch. 10, p. 533-540 ; Thornton v. Wynn, 12 Wheat. R. 183 ; Borra-
daile v. Lowe, 4 Taunt. R. 93 ; Leonard v. Gary, 10 Wend. R. 504 ;
Reynolds v. Douglass, 12 Peters, Sup. Ct. R. 497, 505 ; Martin v. Wins-
low, 2 Mason, R. 241 ; Martin v. Ingersoll, 8 Pick. R. 1.
2 Ibid. ; Hopkins v. Liswell, 12 Mass. R. 52 ; Trimble v. Thorne, 16
John. R. 152 ; Jones v. Savage, 6 Wend. R. 658 ; Tibetts v. Dowd, 23
Wend. 412 ; Van Derveer v. Wright, 6 Barbour, Sup. Ct. R. 547.
3 Pardessus, Droit Comm. Tom. 2, art. 433, 435 ; Post, § 277.
4 May v. Coffin, 4 Mass. R. 341 ; Leonard v. Gary, 10 Wend. R. 504 ;
Martin v. Winslow, 2 Mason, R. 241 ; Jones v. Savage, 6 Wend. R. 658 ;
CH. VII.] EXCUSES FOR NON-PRESENTMENT. 341
can Courts, that the indorser, if once discharged, would
not be bound, unless there was a new and sufficient con-
sideration for the waiver, although the waiver might
afford a sufficient ground of presumption, that there had
been a due presentment, where the facts and circum-
stances were of such an equivocal nature, as left it
doubtful, whether a clue presentment had been made or
not. 1 And there is great force and weight in the objec-
tion, that, where the indorser is once discharged, he
cannot be made liable, in point of law, upon any new
promise to pay the Note, without a new consideration,
of which the waiver is merely evidence. 2 But the
weight of the American authorities seems the other
way. 3
§ 276. What circumstances will, in our law, amount
Hopkins v. Liswell, 12 Mass. R. 52 ; Martin v. Ingersoll, 8 Pick. R. 1 ;
Miller v. Hackley, 5 John. R. 375 ; Griffin v. Goff, 12 John. R. 423 ;
Richter v. Selin, 8 Serg. & Rawle, R. 425 ; Reynolds v. Douglass, 12
Peters, Sup. Ct. R. 497,505; Tower v. Durell, 9 Mass. R. 332 ; Garland
v. Salem Bank, 9 Mass. R. 408 ; Penn v. Poumeirat, 14 Martin, R. 541 ;
Cayuga County Bank v. Dill, 5 Hill, N. Y. R. 403 ; Creamer v. Perry,
17 Pick. R. 322.
i Ibid.
2 Tibetts v. Dowd, 23 Wend. 412 ; Van Derveer v. Wright, 6 Barbour,
Sup. Ct. R. 547.
3 Lawrence v. Ralston, 3 Bibb, Ken. R. 102 ; Peabody v. Harvey,
4 Connect. R. 119 ; 3 Kent, Comm. Lect. 44, p. 113, (5th edit.) Mr.
Chancellor Kent there says ; " If due notice of a non-acceptance or non-
payment be not given, or a demand on the maker of a Promissory Note be
not made, yet a subsequent promise to pay, by the party entitled to notice,
will amount to a waiver of the want of demand or notice, provided the
promise was made clearly and unequivocally, and with full knowledge of
the fact of a want of due diligence on the part of the holder. The weight
of authority is, that this knowledge may be inferred, as a fact, from the
promise, under the attending circumstances, without requiring clear and
affirmative proof of the knowledge." And he cites Goodall v. Dolley, 1
Term R. 712 ; Hopes v. Alder, 6 East, R. 16, in notis ; Borradaile v.
Lowe, 4 Taunt. R. 93 ; Stevens v. Lynch, 2 Camp. N. P. 332; S. C.
12 East, 38 ; Miller v. Hackley, 6 John. R. 375 ; Martin v. Winslow,
29*
342 PROMISSORY NOTES. [CH. VII.
to the proof of a waiver of the want of due presentment,
or of the want of due notice of the dishonor, is some-
2 Mason, R. 241 ; Fotheringham v. Price, 1 Bay, R. 291 ; Thornton v.
Wynn, 12 Wheat. R. 183 ; Pate v. M'Clure, 4 Randolph, 164 ; Otis v.
Hussey, 3 N. Hamp. R. 346 ; Piersons v. Hooker, 3 John. R. 68 ; Hop-
kins v. Liswell, 12 Mass. R. 52 ; Breed v. Hillhouse, 7 Connect. R. 523.
Contra, Trimble v. Thorne, 16 John. R. 152. See, also, Story on Bills,
fy 320, and cases there cited ; Jones v. Savage, 6 Wend. R. 658 ; Boyd v.
Cleveland, 4 Pick. R. 25 ; Thomson on Bills, ch. 6, § 4, p. 523, 524, 530,
(2d edit.) ; Lundie v. Robertson, 7 East, R. 231 ; Taylor v. Jones, 2
Camp. R. 105 ; Gunson v. Metz, 1 Barn. & Cressw. 193. Mr. Chitty
(on Bills, ch. 10, p. 533, 8th edit.) says ; " The consequences, however,
of a neglect to give notice of non-payment of a Bill or Note, or to protest
a foreign Bill, may be waived by the person entitled to take advantage of
them. Thus it has been decided, that a payment of a part, or a promise
to pay the whole or part, or to ' see it paid,' or an acknowledgment that
' it must be paid,' or a promise, that ' he will set the matter to rights,' or
a qualified promise, or a mere unaccepted offer of a composition with other
creditors, made by the person insisting on the want of notice (after he was
aware of the laches) to the holder of a Bill, amounts to a waiver of the
consequences of the laches of the holder, and admits his right of action.
And, in some of the cases upon this subject, the effect of such partial pay-
ment, or promise to pay, has been carried still further, and been considered
not merely as a waiver of the right to object to the laches, but even as an
admission, that the Bill or Note had in fact been regularly presented and
protested, and that due notice of dishonor had been given ; and this even in
cases, where the party who paid ojr promised afterwards stated, that in fact
he had not due notice, &c. ; because it is to be inferred, that the part-
payment, or promise to pay, would not have been made, unless all circum-
stances had concurred to subject the party to liability, and induce him to
make such payment or promise. Thus, where an indorsee, three months
after a Bill became due, demanded payment of the indorser, who first
promised to pay it, if he would call again with the account, and afterwards
said that he had not had regular notice, but as the debt was justly due he
would pay it; it was held, that the first conversation being an absolute
promise to pay the Bill, was prima facie an admission, that the Bill had
been presented to the acceptor for payment in due time, and had been
dishonored, and that due notice had been given of it to the indorser, and
superseded the necessity of other proof to satisfy those averments in the
declaration ; and that the second conversation only limited the inference
from the former, so far as the want of regular notice of the dishonor to the
defendant went, which objection he then waived. So, where the drawer
of a foreign Bill, upon being applied to for payment, said, ' My affairs are
CH. VII.] EXCUSES FOR NON-PEESENTMENT. 343
times a matter of no inconsiderable doubt, and nicety,
and difficulty. 1 Slighter circumstances may be suffi-
cient, where the situation of the indorser is such, as
fairly to give rise to the presumption, that the Note was
made for his accommodation ; or, that he had not, or
could not have, sustained any prejudice, than would be
essential, where no such presumption should arise. 2
Payment of a part of the Note, or a promise to pay the
Note, made with a full knowledge of the want of a due
presentment, or other default, would be sufficiently evin-
cive, that the indorser could not have sued on the Note;
and, consequently, that he could not insist upon the
want of due presentment or notice. 3
§ 277. The French Law, in many cases, proceeds,
at this moment deranged, but I shall be glad to pay it as soon as my
accounts with my agent are cleared,' it was decided, that it was unneces-
sary to prove the averment of the protest of the Bill. And, in an action
by the indorsee against the drawer of a Bill, the plaintiffdid not prove any
notice of dishonor to the defendant, but gave in evidence an agreement
made between a prior indorser and the drawer, after the Bill became due,
which recited that the defendant had drawn, amongst others, the Bill in
question, that it was overdue, and ought to be in the hands of the prior
indorser, and that it was agreed the latter should take the money due to
him upon the Bill by instalments ; it was held, that this was evidence, that
the drawer was at that time liable to pay the Bill, and dispensed with other
proof of notice of dishonor. Again, where, in an action against the
drawer, in lieu of proof of actual notice, the defendant's letter was proved,
stating, ' That he was an accommodation drawer, and that the Bill would
be paid before next term,' though not saying ' by defendant,' Lord Ellen-
borough said, ' The defendant does not rely upon the want of notice, but
undertakes, that the Bill will be duly paid before the term, either hy him-
self or the acceptor. I think the evidence sufficient. ' " See Story on Bills,
§ 317; Donnelly v. Howie, Hayes & Jones, R. 436.
1 Thomson on Bills, ch. 6, § 4, p. 523-526, (2d edit.)
2 Sharp v Bailey, 9 Barn. & Cressw. 44 ; Bayley on Bills, ch. 7, § 2,
p. 294, 295, (5th edit.) ; Chitty on Bills, ch. 8, p. 356, 357, (8th edit.) ;
Id. ch 9, p. 386 ; Nicholson v. Gouthit, 2 H. Black. 600 ; Rhett v. Poe,
2 How. Sup. Ct. R. 457 ; Thomson on Bills, ch. 6, § 4, p. 523 - 526, (2d
edit.)
3 Bayley on Bills, ch. 7, § 2, p. 291, 293, (5th edit.) ; Vaughan v.
344 PROMISSORY NOTES. [CH. VII.
upon a similar principle. Thus, if the indorser should,
upon a simple notice, or a notice by the protest, pay the
holder the amount of the Bill or Note, he will not be at
liberty to insist upon having it repaid to him, if he
should subsequently ascertain the nullity of the act of
protest, or that there has been undue negligence on the
part of the holder ; unless, indeed, the payment should
have been produced by the fraud of the holder. For it
is his own folly to be the victim of his own too great
facility, since he ought to have known whether the pro-
test was too late, or was a nullity ; and, as it might be
deemed a fair debt, it was competent for the indorser to
waive or renounce his rights. 1
§ 278. On the other hand, if there has not been any
due presentment or notice of the dishonor of the Note,
and the indorser, after the maturity of the Note, sup-
posing himself liable to pay the same, takes security
therefor from the maker, that will not alone amount to
a waiver of the objection of the want of due present-
ment, or of due notice; since it cannot justly be inferred,
that he means, at all events, to make himself liable for
the payment of the Note; but he takes the security
merely as a contingent security, in case of his liability. 2
Upon the like reason, the indorser's making exertions,
upon the supposition of his liability to pay the Note, to
obtain payment from a prior party on the Note ; 3 or an
Fuller, 2 Str. R. 1246; Rogers v. Stephens, 2 Term R. 713 ; Anson v.
Bailey, Bull. N. P. 276 ; Wilkes v. Jacks, Peake, R. 202 ; Sharp v.
Bailey, 9 Barn. & Cressw. 44 ; Potter v. Rayworth, 13 East, R. 417 ;
Thomson on Bills, ch. 6, § 4, p. 527-530, (2d edit.)
1 Pardessus, Droit Coram, Tom. 2, art- 434.
2 Tower v. Durell, 9 Mass. R. 332 ; Richter v. Selin, 8 Serg. & R. 425 ;
Post, § 281.
3 Hussey v. Freeman, 10 Mass. R. 84.
CH. VII.] EXCUSES FOR NON-PRESENTMENT. 345
offer to indorse a new Note of the maker, which is not
accepted ; 1 or a conditional offer to pay in a certain
manner, or in a certain time, which is not accepted ; 2
will not amount to a waiver, either of a due present-
ment or of clue notice.
§ 279. In many cases, the promise of an indorser,
either prior or subsequent to the maturity of the Note,
is relied on as evidence to establish a waiver of due pre-
sentment, or due notice of the dishonor of the Note.
And all the circumstances of the case must then be
taken into consideration, in order to ascertain, whether
the promise does, or does not, amount to such a waiver. 3
Thus, where the indorser promised a bank to attend to
the renewal of a Note held by the bank, and to take
care of it, and also directed the usual notice to the maker
when it became due, to be sent to himself, it was held
to amount to presumptive evidence of a waiver by him
of a regular presentment and notice. 4 So, where the
indorsee of a Note, at the time when the Note was in-
dorsed to him, told the indorser, that he had no confi-
dence in the other parties to the Note, and did not know
them, and should look wholly to him ; and the indorser
replied, that he should be in New York, where the in-
dorsee lived, when the Note became due, and would take
it up, if not paid by any other party ; it was held to
warrant the conclusion, that there was a waiver of no-
tice. 5 But where the language or the circumstances
are of a more doubtful and uncertain character, no such
i Laporte v. Landry, 17 Martin, R. 359.
2 Agan v. McManus, 11 John. R. 180 ; Cuming v. French, 2 Camp. R.
107, note ; Goodall v. Dolley, 1 Term R. 712.
3 Post, § 360 - 366.
4 Taunton Bank v. Richardson, 5 Pick. R. 436.
5 Boyd v. Cleveland, 4 Pick. R. 525.
346 PROMISSORY NOTES. [CH. VII.
waiver will (as we shall presently see) be ordinarily
inferred.
§ 280. In cases of a promise, made after the maturity
of the Note, perhaps stronger circumstances will he re-
quired to justify the inference of a waiver of the want
of due demand and notice, than in cases of a promise
made prior to the maturity thereof. 1 But, at all events,
a promise to pay, made after the maturity of the Note,
or even a payment of the Note by an indorser, under a
mistake of material facts, will not bind the indorser, or
amount to a waiver of due presentment, or due notice. 2
Whether a new promise to pay, under a mistake of law,
will amount to such a waiver, is a matter upon which
great diversity of opinion has been entertained. 3 But
1 See Creamer v. Perry, 17 Pick. R. 332, 335.
2 Garland v. the Salem Bank, 9 Mass. R. 408 ; Chitty on Bills, ch. 8,
p. 372, 373, (8th edit.) ; Id. ch. 9, p. 448 ; Warder v. Tucker, 7 Mass.
R. 449 ; Freeman v. Boynton, 7 Mass. R. 483 ; Martin v. Ingersoll, 8
Pick. R. 1 ; Dennis v. Morrice, 3 Esp. R. 158 ; Thomson on Bills, ch. 6,
§ 4, p. 528, 529, (2d edit.)
3 See 3 Kent, Comm. Lect. 44, p. 113, (5th edit.) ; Thomson on Bills,
ch. 6, § 4, p. 530, (2d edit.) ; Bayley on Bills, ch. 9, p. 340, 341, (5th
edit.) ; Chitty on Bills, ch. 10, p. 536, (8th edit.) Mr. Chitty here says ;
" It seems to have been once considered, that a misapprehension of the
legal liability would prevent a subsequent promise to pay from being obli-
gatory, and that even money paid in pursuance of such promise might be
recovered back. But from subsequent cases it appears, that such doctrine
is not law, and that money paid by one knowing (or having the means of
such knowledge in his power) all the circumstances, cannot, unless there
has been deceit or fraud on the part of the holder, be recovered back again
on account of such payment having been made under an ignorance of the
law, although the party paying expressly declared, that he paid without
prejudice. And as an objection made by a drawer or indorser to pay the
Bill, on the ground of the want of notice, is stricti juris, and frequently
does not meet the justice of the case, it is to be inferred from the same
cases, and it is, indeed, now clearly established, that even a mere promise
to pay, made after notice of the facts and laches of the holder, would be
binding, though the party making it misapprehended the law. Therefore,
where the drawer of a Bill of Exchange, knowing that time had been given
CH. VII.] EXCUSES FOR NON-PRESENTMENT. 347
both of these subjects will more properly and fully come
before us, when we examine, what will amount to an
excuse, or waiver, of the want of notice, to which the
authorities are in general most pointedly applied.
§ 281. In the next place, the receiving of a security
by the indorser before or at the time of the maturity of
the Note, as an indemnity or payment therefor. In such
a case, if the security or indemnity be a full security or
indemnity for the amount of the Note, it is plain, that
the indorser can receive no damage from the want of a
due presentment. 1 A fortiori, the same doctrine will
apply, where the indorser has received money, or pro-
perty, for the very purpose of taking up the Note at its
maturity. 3 This latter doctrine would seem to follow
out the doctrine of courts of equity applied in favor of
by the holder to the acceptor, but apprehending- that he was still liable
upon the Bill in default of the acceptor, three months after it was due, said,
' I know I am liable, and if the acceptor does not pay it I will,' it was ad-
judged, that he was bound by such promise ; and the Court said, 'That
the cases above referred to proceeded on the mistake of the person paying
the money under an ignorance or misconception of the facts of the case, but
that in the principal case the defendant had made the promise with a full
knowledge of the circumstances three months after the Bill had been dis-
honored, and could not now defend himself upon the ground of his igno-
rance of law when he made the promise.' And such a promise will dispense
with the necessity for a protest of a foreign Bill." But see, contra, War-
der v. Tucker, 7 Mass. R. 449 ; May v. Coffin, 4 Mass. R. 342; Freeman
v. Boynton, 7 Mass. R. 483.
1 Bayley on Bills, ch. 7, § 2, p. 310, (5th edit.) ; Chitty on Bills,
ch. 10, p. 473, (8th edit.) ; Story on Bills, § 374 ; Corney v. Da Costa,
1 Esp. R. 302, 303; Martell v. Tureauds, 18 Martin, R. 118; Mechanics'
Bank v. Griswold, 7 Wend. R. 165 ; 3 Kent, Comm. Lect. 44, p. 113,
(5th edit.) ; Mead v. Small, 2 Greenl. R. 207 ; Andrews v. Boyd, 3 Mete.
R. 434 ; Bond v. Farnham, 5 Mass. R. 170 ; Prentiss v. Danielson, 5
Connect. R. 175 ; Duvall v. Farmers' Bank, 9 Gill & John. R. 47. But
see Kramer v. Sandford, 4 Watts, R. 328; Pardessus, Droit Comm. Tom.
2, art. 435.
2 Ibid.
348 PROMISSORY NOTES. [CH. VII.
sureties, where securities are held by the creditor for
the debt, and in favor of creditors, where the sureties
hold the like securities as an indemnity. In the former
case, the sureties, on payment of the debt, are entitled
to the securities ; 1 in the latter, the creditor would seem
entitled to a direct remedy against the sureties to have
the securities applied to pay his debt.
§ 282. Under particular circumstances, the receiving
of. security from the maker before the maturity of the
Note, less than the amount of the liability of the in-
dorser, may be deemed a waiver of the right to require
due presentment and notice. As, for example, if, before
the maturity of the Note, the indorser take an assign-
ment of all the maker's property, although inadequate
to meet his indorsements, it will amount to such a wai-
ver. 2 But an assignment made by the maker to trus-
1 Story on Eq. Jurisp. § 499.
2 Bond v. Farnham, 5 Mass. R. 170, 172. On this occasion, Mr. Chief
Justice Parsons said ; " The facts agreed are, that on the date the Note
was payable, a demand in writing was left with a lad at a store formerly
occupied by the maker, but that at that time neither the store was in his
occupation, nor the lad in his service ; that the maker before that time had
stopped payment, was insolvent, and continues so to be, but that he had
not absconded ; that three days afterwards notice of the non-payment was
given to the defendant. Had the case stopped here, the defendant migh
have had some reason to complain ; for, although a man has stopped pay-
ment and is insolvent, yet he may have in his possession effects sufficient
to pay part of his debts, which a fortunate indorser on receiving seasonable
notice may secure. The case, however, states no damage as having been
incurred by the defendant from any neglect of demand or of notice. But it
states, that before this Note was payable, the maker had assigned all his
property to the defendant, for his security against his indorsements ; and
that the property was not in fact sufficient to meet his other indorsements,
exclusive of this Note. Upon these facts, we are satisfied, that the ver-
dict is right, because, under the circumstances of this case, the defendant
had no right to insist on a demand upon the maker. It appears, that he
knew such a demand must be fruitless, as he had secured all the property
GH. VII.] EXCUSES FOR NON-PRESENTMENT. 349
tees, in trust for the benefit of his creditors, and among
them of the indorser, will not amount to a waiver of
due demand and notice of the dishonor of the Note ;
for such a trust may well be deemed a mere indemnity
against his legal liabilities, which, being conditional,
would become absolute only by due demand and notice. 1
the maker had. And as he secured it for the express purpose of meeting
this and his other indorsements, he must be considered as having waived
the condition of his liability, and as having engaged with the maker, on
receiving all his property, to take up his Notes. And the nature or terms
.of the engagement cannot be varied by an eventual deficiency in the pro-
■perty ; because he received all that there was. This intent of the parties
is further supported by the offer of the defendant to the plaintiffs to take
up this Note, if they would receive foreign bank notes in payment. We
do not mean to be understood, that when an indorser receives security to
meet particular indorsements, it is to be concluded, that he waives a de-
mand or notice as to any other indorsements. That, however, is not this
case. But we are of opinion, that if he will apply to the maker, and,
representing himself liable for the payment of any particular indorsements,
receives a security to meet them, he shall not afterwards insist on a fruit-
less demand upon the maker, or on a useless notice to himself, to avoid
payment of demands, which on receiving security he has undertaken to
pay."
i Creamer v. Perry, 17 Pick. R. 332, 334, 335. On this occasion, Mr.
Chief Justice Shaw said ; "On the first ground, we think, that the most
which could be made of the evidence is, that after this Note was made, but
several months before it became due, the promisor made an assignment to
trustees, upon trust, among other things, to secure the defendant for all
debts due to him from the promisor, and to indemnify him against all his
liabilities. Without stopping to consider, whether, after this property was
surrendered by the trustees, the defendant could have availed himself of it,
we think the effect of this assignment was, to secure and indemnify the de-
fendant against his legal liabilities ; and as his liability as indorser on this
Note was conditional, and depended upon the contingency of his having
seasonable notice of its dishonor, his claim upon the property depended
upon the like contingency. The second assignment does not affect the
question ; it does not appear to have been made till several days after the
Note became due. And, on the other ground, it is a rule of law, that if
an indorser, knowing that there has been no demand and notice, and con-
versant with all the circumstances, will promise to pay the Note, this is to
be deemed a waiver. But these rules in regard to notice and waiver are
to be held with some strictness, in order to insure uniformity of practice
prom, notes. 30
350 PROMISSORY NOTES. [CH. VII.
We have already seen, that the taking of a security or
indemnity by an indorser, after the Note has become due,
under the impression that he is legally bound to pay
the same, will not bind him, if there has not been a due
presentment and notice of the dishonor. 1
§ 283. The French Law contains similar provisions
as to receiving security. If the indorser has received
on account, or by way of set-off, or otherwise, funds
sufficient to pay the Note, that will be a sufficient ex-
cuse for any default of due presentment of the Note for
payment to the maker ; since it is apparent, that he can-
not have suffered any damage thereby. 2 But here,
again, the exception is to be understood as applicable
only to the indorser, who has received such funds, and
not to other indorsers, who are not in that predica-
ment. 3
§ 284. In the next place, there is a relaxation of the
strict rule, as to the necessity of a due presentment of
a Note by the holder to the maker for payment at its
maturity, where the Note has been received as collate-
ral security for another debt due to the holder, and the
debtor, causing it to be made or delivered to the holder,
is no party to the Note, or, if a party to it, he has not
and regularity in their application. Though questions of due diligence
and of waiver were originally questions of fact, yet having been reduced to
a good degree of certainty by mercantile usage, and a long course of judi-
cial decisions, they assume the character of questions of law, and it is
highly important that they should be so deemed and applied, in order that
rules affecting so extensive and important a department in the transactions
of a mercantile community, may be certain, practical, and uniform, as well
as reasonable, equitable, and intelligible."
J- Ante, § 278 ; Richter v. Selin, 8 Serg. & Rawle, 425 ; Tower v.
Durell, 9 Mass. R. 332.
2 Code de Comm. art. 171 ; Pardessus, Droit Coram. Tom. 2, art. 435 ;
Story on Bills, § 374.
3 Ibid.
CH. VII.] EXCUSES FOR NON-PRESENTMENT. 351
indorsed it, and it is not transferable by delivery. 1 In
the former case, the delivery of the Note must be treated
as a mere pledge, and the debtor, not being a party to
the Note, is not entitled to strict presentment or notice,
as if it were an ordinary mercantile negotiation ; but
merely to the exercise of such diligence on the part of
the holder as is required of a bailee for hire, or of a
pledgee. 1 In the latter case, as the debtor does not in-
dorse the Note, he does not subject himself to the obli-
gations of the Law Merchant, and of course is not
entitled to its advantages. 2 In order, therefore, to en-
* See Swinyard v. Bowes, 5 Maule & Selw.62; Chitty on Bills, ch. 10,
p. 467, 474, (8ih edit. 1833) ; Bayley on Bills, eh. 7, \ 2, p. 286-290,
(5th edit.) ; Story on Bills, § 372 ; Lawrence v. M'Calmont, 2 How. Sup.
Ct. R. 427 ; Rhett v. Powe, 2 How. Sup. Ct. R. 457. See Pardessus,
Droit Comm. Tom. 2, art. 435.
2 Ibid. ; Van Wart v. Woolley, 3 Barn. & Cressw. 439. In this case
a Bill of Exchange had been sent to Van Wart, the agent of Irving & Co.
to pay for goods purchased by him for them. The Bill was drawn by
Cranston & Co. upon Greg & Lindsay, in London, and payable to the
order of Van Wart, the agent. It was not indorsed by Van Wart ; but
he employed his bankers to present it for acceptance. The drawees re-
fused to accept it ; but the bankers did not give notice thereof to Van Wart
until the day of payment, when it was again presented and dishonored.
Before the Bill was presented for acceptance, the drawers had become
bankrupt. Van Wart brought a suit against the bankers for negligence in
not giving- him notice of the non-acceptance of the Bill. Lord Chief
Justice Abbott, in delivering the opinion of the Court, said ; " Upon this
state of facts, it is evident, that the defendants (who cannot be distinguish-
ed from, but are answerable for their London correspondents, Sir John
Lubbock & Co.) have been guilty of a neglect of the duty, which they
owed to the plaintiff, their employer, and from whom they received a
pecuniary reward for their services. The plaintiff is, therefore, entitled to
maintain his action against them, to the extent of any damage he may
have sustained by their neglect. He charges a damage in two respects
first, by the loss of remedy against Irving, Smith, & Holly, from whom
he received the Bill. Secondly, by the loss of remedy against Cranston,
the drawer of the Bill. If, as between the plaintiff and Irving & Co., he
has made the Bill his own, and cannot call upon them for the amount, his
damage will be to the full amount for which the verdict has been taken.
352 TROMISSORY NOTES. [CH. VII.
title the debtor, as owner of the collateral security, to
resist the payment of the debt, he must establish that
If he still retains a remedy against them, and has only been delayed in the
pursuit of such remedy, as he might have had against the drawer, a bank-
rupt, the amount of his loss has not been inquired into or ascertained, and
is probably much less than the amount of the Bill. We are of opinion,
that the plaintiff has not, as between him and Irving & Co., made the Bill
his own ; that he might, notwithstanding the want of notice of the non-
acceptance, have recovered from them the amount of the Bill in an action,
for money paid ; or if he had notice of the dishonor, before he had bought
and sent the goods, which they had ordered him to buy, he might have
returned the Bill, and have abstained from ordering or buying the goods.
It will have been observed, that Irving & Co. sent the Bill to the plaintiff
without their indorsement, and payable to his own order. The counsel
for the plaintiff was under the necessity of arguing this case, as if he were
arguing for Irving & Co. in an action brought against them by the plain-
tiff; and it was contended, that Irving & Co. were entitled to notice of the
non-acceptance in this case, as they would have been by the Law Merchant
in the case of a Bill indorsed by them to the plaintiff. But no authority
was cited that maintains this proposition. And the case of Swinyard and
others v. Bowes is an authority the other way. If a person deliver a Bill
to another without indorsing his own name upon it, he does not subject
himself to the obligations of the Law Merchant ; he cannot be sued on the
Bill, either by the person to whom he delivers it, or by any other. And,
as he does not subject himself to the obligations, we think he is not entitled
to the advantages. If the holder of a Bill sell it without his own indorse-
ment, he is, generally speaking, liable to no action in respect of the Bill.
If he deliver it without his indorsement, upon any other consideration,
antecedent or concomitant, the nature of the transaction, and all circum-
stances regarding the Bill, must be inquired into, in order to ascertain,
whether he is subject to any responsibility. If the Bill be delivered, and
received as an absolute discharge, he will not be liable ; if otherwise, he
may be. The mere fact of receiving such a Bill does not show it was
received in discharge. Bishop v. Rowe, and Swinyard and others v.
Bowes, before mentioned . Then what are the facts of this particular case ?
Irving & Co. residing in America, had employed the plaintiff, residing at
Birmingham, to purchase hardware for them in England by commission.
By accepting this employment, he became, as between him and them, their
agent. They then send him the Bill in question as a further remittance on
account of their order for hardware. The Bill is drawn upon persons re-
siding in London ; the plaintiff, therefore, could not have been expected to
present the Bill himself; it must have been understood, that he was to do
this through the medium of some other person. He employed for that pux-
oh. vil] excuses for non-presentment. 353
he has sustained damages by reason of the want of due
diligence and due presentment on the part of the cre-
pose persons in the habit of transacting such business for him and others,
and upon whose punctuality he might reasonably rely. In doing this, we
think that he did all that was incumbent upon him, as between him and
Irving & Co. ; that he is personally in no default as to them, and is not
answerable to them lor the default of the persons whom he employed under
such circumstances. In the course of the argument, the situation of Irving
& Co. was compared to that of a guarantee. The decisions that have
taken place in actions brought against a guarantee warrant the proposition
that has been before mentioned, viz. that the nature of the transaction, and
the circumstances of the particular case, are to be considered and regarded.
Thus, in Warrington and another v. Furbor, where a commission of bank-
rupt had issued against the acceptor before the Bill became due, a present-
ment for payment to him was held unnecessary to charge the guarantee.
Philips v. Astling stood upon different grounds ; the Bill was not pre-
sented for payment when it became due, as it ought to have been; two
days afterwards, notice that it remained unpaid was given to the drawers,
for whom the defendant was guarantee, but no notice was then given to the
defendant. The drawers and acceptor continued solvent for many months
after the Bill was dishonored ; and it was not until they had become bank-
rupts, that payment was demanded of the defendant. Under these circum-
stances, because the neeessary steps were not taken to obtain payment
from the parties to the Bill, while they continued solvent, the Court of
Common Pleas held the guarantee to be discharged. In Holbrow v. Wil-
kins, the acceptors were known to be insolvent before the Bill fell due ;
and some days after that fact was known, the plaintiffs wrote to the
defendant, and desired him to accept a new Bill, which he refused. The
Bill was not presented for payment when due, nor any notice of the non-
payment given to the defendant. The Bill would not have been paid if
presented; and it did not appear, that the defendant sustained any damage
by reason of the want of presentment or notice ; and this Court held the
guarantee not to be discharged. These decisions show, that cases of this
kind depend upon the circumstances peculiar to each. In the present case
it does not appear that Irving & Co. have sustained any damage by the
want of notice of the non-acceptance of the Bill. Cranston, the drawer,
was not entitled to such notice ; he had no right to draw, and he sustained
no prejudice. He had become bankrupt some weeks before notice of the
non-acceptance could have reached Irving & Co. ; nothing appears to show
that they have lost any remedy, that they might have had either against
him or his estate, if they could ever have had any ; but even this does not
appear affirmatively ; the circumstances under which they received the Bill
nofbeing disclosed ; and possibly they may have received it upon the terms
of being accountable only in case it should be accepted, and not otherwise.
30*
■
354 PROMISSORY NOTES. [CH. VII.
ditor, and to the extent of such damages he may recover
compensation or indemnity, or recoup the amount in any
suit for the debt. 1 In cases of this sort, the same rule
has been applied as in cases of the guaranty of Notes. 2
§ 285. The French Law here also applies the same
broad principle, which governs it in all cases of the want
of due presentment and due notice of the dishonor. It
does not, like our law, positively exonerate the indorsers
from all responsibility in such cases ; 3 but only to the
extent, that they have suffered, or may suffer, damage
or prejudice by the want of such due presentment, or
due notice. 4 Indeed, this would seem to be the general
rule prevalent among the commercial states of conti-
nental Europe. Casaregis lays it down as a general
rule, that where the due presentment or due notice
would be of no benefit to the drawer of a Bill, (and the
like reason would seem to apply to the indorsers of a
Note,) there the omission will not affect the rights of
the holder against him ; 5 and Baldaseroni adopts the
same doctrine. 6
1 Ibid. ; Story on Bills, § 372.
2 Ibid.
3 See Bayley oo Bills, ch. 7, § 2, p. 302, 303, (5th edit.)
4 Pothier, De Change, n. 156, 157 ; Pardessus, Droit Comm. Tom. 2,
art. 435 ; Story on Bills, § 478, and note ; Kemble v. Mills, 1 Mann. &
Grang. 762, note b.
5 Ibid. ; Casareg. Disc, de Comm. 54, n. 38,40, 42, 49. The language
of Casaregis is ; " Propterea pro regula tradimus, quod ubi in facto appa-
reret nihil omnino fuisse profutura prasdicta protesta, vel ob decoctionem
scribentis, vel solvere debentis literas, tunc omissio, vel negligentia in illis
elevandis, vel transmittendis nullatenus nocebit, quando enim diligentiee
prodesse non possunt, impune valent omitti per eum, qui illas facere
tenebatur. Sed in hoc casu ad omittentem diligentias ominino spectat
probare, quod diligentise non erant profuturae, nam sola possibilitas in con-
trarium aut dubius eventus, an forent, vel non profuturas, interpretandus,
est contra morosum, vel negligentem."
6 Baldasseroni, De Camb. pt. 2, art 10, § 35. Baldasseroni says
CH. VII.] EXCUSES FOR NON-PRESENTMENT. 355
§ 286. We have thus far had under consideration
most of the cases, which constitute, in point of law,
valid excuses for the want of a due presentment of a
Note for payment at its maturity. It may be proper in
this connection to consider, what have been held not to
be sufficient and valid excuses for such default. To
some of these we have already incidentally alluded;
but it may be proper briefly again to allude to them in
this place. 1 In the first place, (as we have seen, 2 ) it is
by our law, as well as by the French Law, 3 no excuse
that the maker is a bankrupt, or is insolvent, at the
time when the Note becomes due; and this (as is as-
serted) for two reasons ; first, that is a part of the im-
plied obligations or conditions of the contract of the
indorser, that due presentment shall be made in order
to bind him to payment upon the dishonor; and se-
condly, that it is not certain, that, if due presentment
had been made, the Note, notwithstanding the failure,
might not have been paid, either by the maker, or by
some friends for him. Each of these reasons has been
promulgated, not only in the Common Law authorities, 4
(p. 198) ; "Qualora poi la negligenza del Portatore nel presentare la Let-
tera, o nel cavare il Protesto non porta alcun danno,o che quel danno,che
arriva alia Lettera, sarebbe derivato nonoslante, e indipendentemente dalla
detta negligenza ; in tal caso il Portatore non e tenuto alia refezione di
detto danno, come quello, che non e originato dal fatto suo." For this
doctrine he relies, among other authorities, upon the passage above cited
from Casaregis.
1 Some of the cases cited under this head arose upon non-presentment of
the Note at its maturity, and some upon the want of due notice ; but
they depend upon similar principles, and are so treated by the text writers.
2 Ante, § 203, 204, 241 ; Nicholson v. Gouthit, 2 H. Black. 609 ; Es-
daile v. Sowerby, 11 East, R. 114 ; 3 Kent, Comm. Lect. 44, p. 110, (5th
edit.)
3 Pothier, De Change, n. 147 ; Ante, § 204 ; 3 Kent, Comm. Lect. 44 3
p. 110, (5th edit.) ; Pardessus, Droit Comm. Tom. 2, art. 424.
4 Bayley on Bills, ch. 7, § 2, p. 302, 303, (5th edit.) ; Nicholson v.
356 PROMISSORY NOTES. [CH. VIL
but by foreign. Jurists of high repute, such as Pothier
and Savary. 1
§ 287. In the next place, as has been already sug-
gested, equivocal acts, or conduct, or language, on the
part of the indorser, not intentionally or fraudulently
designed to mislead, or knowledge on his part, that the
Note, if presented to the maker, will not be paid at the
maturity of the Note, will not constitute any excuse for
the want of due presentment thereof. 2 The reason of
Gouthit, 2 H. Black. 609 ; Boultbee v. Stubbs, 18 Ves. R. 21 ; Chitty
on Bills, ch. 9, p. 386, (8th edit.) ; Id. ch. 10, p. 469-473, 482, 483 ;
Russell v. Langstaffe, 2 Doug. R. 515 ; Story on Bills, § 375 ; Bond v.
Farnliam, 5 Mass. R. 170, 172 ; Crossen v. Hutchinson, 9 Mass. R. 205;
Sand ford v. Dillaway, 10 Mass. R. 52 ; Farnum v. Fowle, 12 Mass. R.
89 ; Granite Bank v. Ayers, 16 Pick. R. 392. On this subject, Mr.
Chitty, (p. 462, 483, 8th edit.) says; "The death, known bankruptcy, or
known insolvency, of the drawee or acceptor, or maker of a Note, or his
being in prison, or the notorious stopping payment of a banker, constitute
no excuses, either at law or in equity, or in bankruptcy, for the neglect to
give due notice of non-acceptance or non-payment; because many means
may remain of obtaining payment by the assistance of friends, or otherwise,
of which it is reasonable that the drawer and indorsers should have the
opportunity of availing themselves, and it is not competent to the holders
to show, that the delay in giving notice has not in fact been prejudicial.
It has been observed, that it sounds harsh, that the known bankruptcy of
the acceptor should not be deemed equivalent to a demand or notice, but
the rule is too strong to be dispensed with ; and a holder of a Bill has no
right to judge what may be the remedies over of a party liable on a Bill.
It is no excuse, that the chance of obtaining any thing upon the remedy
over was hopeless, — that the person or persons against whom the remedy
would apply were insolvent or bankrupts, or had absconded. Parties are
entitled to have that chance offered to them ; and if they are abridged of
it, the law, which is founded upon the usage and custom of merchants,
says they are discharged." This is almost verbatim the very language of
the authorities ; and especially of Russel v. Langstaffe, 2 Doug. R. 515 ;
Nicholson v. Gouthit, 3 H. Black. 609, 612.
1 Pothier, De Change, n. 147 ; Savary, Parfait Negotiant, Tom. 2,
p. 360.
2 Miller v. Hackley, 5 John. R. 375 ; Griffin v. Goff, 12 John R. 423 ;
Lee Bank v. Spencer, 6 Mete. R. 308.
CH. VII.] EXCUSES FOR NON-PRESENTMENT. 357
the former part of the rale is, that equivocal acts, or
conduct, or language, may not be intended by the in-
dorser to dispense with the ordinary requirements of
law as to presentment. The reason of the latter is, that
knowledge, that the Note will not be paid, is not the
same as notice, that it has not been paid ; 1 and that
due presentment being a part of the implied obligations
of the holder to entitle him to charge the indorser, the
latter has a right to insist upon a strict fulfilment there-
of ; and it is no proof, that he dispenses with it, merely
to say, that it would be unavailing ; for (as we have
seen 9 ) our law in this respect differs from the law of
continental Europe. Therefore, if the maker has, at
the time of giving the Note, or afterwards, before its
maturity, told the indorser, that he shall not be able to
take it up, or to pay at maturity, and that he, the in-
dorser, must pay it, it will be no excuse for non-present-
ment by the holder. 3 Nor will it make any difference,
that, at the same time, the maker has given the indorser
some money to make a part payment thereof, when clue ;
for although the money so paid may be recovered by the
holder against the indorser, as money had and received
to his, the holder's, use, pro tanto, in discharge of the
1 Caunt v. Thompson, 7 Manning, Gr. & Scott, R. 400.
2 Ante, § 272 ; Chitty on Bills, ch. 9, p. 386, (8th edit.) ; Id. ch. 10,
p. 470-472.
3 Bayley on Bills, ch. 7, § 2, p. 303-395, (5th edit.) ; Baker v. Birch,
3 Camp. R. 107 ; Staples v. Okines, 1 Esp. R. 332 ; Chitty on Bills,
ch. 10, p. 483, 484, (8th edit.) ; Id. p. 527. In Brett v. Levett, 13 East,
R. 214, it was held, that when the bankrupt drawer of a Bill, after his
bankruptcy, and before the maturity of the Bill upon an inquiry from the
holder, whether it would be paid or not, acknowledged that it would not,
it dispensed with due notice of the dishonor. But Mr. Chitty justly puts a
quaere as to the point. Chitty on Bills, ch. 10, p. 484, (8th edit.)
358 PROMISSORY NOTES. [CH. VII.
Note, yet as to the residue the holder will be held exo-
nerated. 1
§ 288. It is upon the same ground, that if a payee
of a Note lend his name and indorse it merely for the
benefit of the maker, and to give credit to the Note, he
will still be entitled to have due presentment made of
the Note at its maturity, notwithstanding he knows at
the time of his indorsement of the Note, that the maker
is insolvent, and will not be able to pay it ; for still, as
upon payment of it, he would be entitled to recover
over against the maker, he has a right to insist, that all
the prerequisites to charge him shall be complied with,
as he has not waived them. 2
§ 289. So, it is no excuse for non-presentment of a
Note in due season, that the indorser told the holder on
the day, when it became due, that he hoped it would
be paid, and that he would see, what he could do, and
endeavor to provide effects ; for in such a case the lan-
guage is at most merely equivocal, and cannot justify the
holder in presuming, that the Note will be dishonored,
or the presentment be dispensed with. 3 So, if, upon an
apprehension, that the Note will not be paid at the ma-
turity, a prior indorser should lodge in the hands of a
subsequent indorser funds, conditionally to secure the
latter, if he should be obliged to pay the Note, but to be
returned, if he should be exonerated ; this would be no
1 Ibid.
2 Ante, § 2fi8, 269 ; Chitty on Bills, ch. 10, p. 471-473, (8th edit.) ;
Bayley on Bills, ch. 7, § 2, p. 306- 308, (5th edit.) ; Nicholsons. Gouthit,
2 H. Black. 609 ; Smith v. Becket, 13 East, R. 187 ; Brown v. Maffey,
15 East. R. 216 ; Lafitte v. Slatter, 6 Bing. R. 623 ; Warder v. Tucker,
7 Mass. R. 449 ; Price v. Whiting, 16Shepley, R. 183.
3 Bayley on Bills, ch. 7, § 2, p. 305, (5th edit.) ; Prideaux v. Collier,
2 Stark. R. 57.
CH. VII.] EXCUSES FOE, NON-PEESENTMENT. 359
dispensation with due presentment as to either indorser
for the last indorser would hold the funds upon a condi-
tion, which had not occurred ; and the prior indorser
would have done nothing to dispense with the due pre-
sentment. 1 Even if the latter had in his hands funds
of the maker at the time, not appropriated to the pay-
ment of the Note, that would not dispense with the due
presentment ; because he would have no right to make
such appropriation, unless he was chargeable with the
payment of the Note. 2
§ 290. It is no excuse for non-presentment of the
Note, that the holder has lost or mislaid it at its matu-
rity, so that he is unable to deliver it up, if required by
the maker ; for it does not follow, that the maker might
not be willing to pay the holder upon a suitable indem-
nity, or that, if payment were refused, the indorser is to
bear the inconvenience occasioned by the fault or mis-
fortune of the holder in losing the Note, since it did not
interpose any insuperable obstacle to his making a de-
mand for payment. 3
§ 291. So, it is no excuse for non-presentment of the
Note at its maturity, according to its terms or purport,
that there was a parol agreement between the maker
and the payee, who subsequently indorsed the same" to
the holder, that the payment of the Note should not be
demanded at its maturity, but at a future time, or upon
a future event. The reason commonly given is, that the
parol evidence seeks to contradict the terms of the Note. 4
1 Bayley on Bills, ch. 7, § 2, p. 303, 304, (5th edit.) ; Clegg v. Cotton,
3 Bos. & Pull. 239 ; Chitty on Bills, ch. 10, p. 482, (8th edit.)
2 Ibid.
3 Ante, § 106, 112, 244 ; Thackray v. Blackett, 3 Camp. R. 164.
4 Ante, § 147 and note ; Story on Bills, § 317 and note ; Price v. Whit-
ney, 16 Shepley, R. 183.
360 PROMISSORY NOTES. [CH. VIL
But another reason may be given, that is quite as deci-
sive, and that is, that such an agreement is one, of which
the holder has no right to avail himself, since he is nei-
ther a party nor a privy thereto, and could insist upon
payment from the maker according to the terms of the
Note. 1 The doctrine, however, seems inapplicable to a
case, where the holder takes the Note with a full under-
standing of the original agreement, and it is expressly
adopted between him and the indorser, when the trans-
fer is made, as a modification of their own contract by
the indorsement. 2
§ 292. So, it is no excuse for non-presentment of the
i Bayley on Bills, ch. 12, p. 492, (5th edit.) ; Free v. Hawkins, 8
Taunt. R. 92 ; Chitty on Bills, ch. 10, p. 483, (8th edit.)
2 Ante, § 148 ; Story on Bills, § 317 and note ; Id. § 371. See Taun-
ton Bank v. Richardson, 5 Pick. R. 436 ; Union Bank v. Hyde, 6 Wheat.
R. 572. But see Free v. Hawkins, 8 Taunt. R. 92, which seems contra.
The case of Hoare v. Graham, 3 Camp. R. 57, seems at variance with the
last suggestion in the text. There the suit was by an indorsee against the
payee of a Note payable two months after date. Defence, that defendant
refused to indorse, unless plaintiffs would agree, that the Note should be
renewed when due, and that plaintiff acceded to that condition. Sed per
Lord Ellenborough ; " I cannot admit this evidence ; it is inconsistent with
the Written instrument ; I will receive evidence that the Note was indorsed
to plaintiffs as a trust ; there may, after a Bill is drawn, be a binding
promise for a valuable consideration to renew it ; but, if the promise be
contemporaneous with the drawing, the law will not enforce it ; it would
be incorporating with a written contract an incongruous parol agreement."
Verdict for plaintiff. See, also, Bayley on Bills, ch. 12, p. 493, (5th edit.)
Why was not the contract between the indorser and indorsee a binding
contract, as it was a part of the consideration upon which the indorsement
was made 1 Lord Ellenborough seems to have confounded the case of an
original agreement between the maker and payee to renew the Note, with
a new agreement between the payee and the holder to allow the same to
be renewed, when the indorsement was made. The former might be said
to contradict the terms of the original Note. But how does it contradict
the indorsement, or the agreement upon the indorsement? See Ante,
§ 147 ; Brown v. Langley, 4 Mann. & Grang. R. 466 ; S. C. 5 Scott, R.
249.
CH. VII.] EXCUSES FOR NON-PRESENTMENT. 361
Note at its maturity, that the indorser has in fact no
debt due him from the maker, but the maker and the
indorser are both mere accommodation parties for the
benefit of a subsequent indorser to the holder ; for, in
such a case, the indorser would, upon taking up the
Bill, be entitled to recover against the maker, and also
against such subsequent indorser. 1
§ 293. So, the want of due presentment of the Note
at its maturity is not excused by an order of the in-
dorser to the maker not to pay the Note at its maturity,
if presented; although it would be a waiver of notice
of the non-presentment. 2 The reason for the difference
which is nice, and, perhaps, not very satisfactory, seems
to be, that the presentment by the holder is a part of
his own contract, which is not waived by the direction
not to pay the Note, since it is res inter alios acta ; but,
that the indorser necessarily waives further notice of
the dishonor, which he has authorized and caused by
his own act, and which may be deemed equivalent to
an appropriation of the money to himself against the
holder.
§ 294. So, the fact, that the makers of a Note consti-
tute one firm, and the indorsers of the same Note ano-
ther firm, in each of which the same person is one of the
partners, will not constitute a sufficient excuse for non-
presentment of the Note at its maturity for payment.
For although, in contemplation of law, all the partners
are presumed to have knowledge of all the facts, which
any one partner knows; yet the firm, who are indorsers,
1 Cory v. Scol.t, 3 Barn. & Aid. 619 ; Norton v. Pickering, 8 Barn. &
Cressw. 610 ; Brown v. Maffey, 15 East, R. 216 ; Ante,§ 268, 269.
2 Hill v. Heap, Dowl. & Ryl. N. P. R. 57 ; Chitty on Bills, ch. 10,
p. 484, (8th edit.)
PROM. NOTES. 31
362 PROMISSORY NOTES. [CH. VII.
are not bound to pay, unless due presentment is made
to the other firm, since knowledge of non-presentment
is not notice of it, nor is it a waiver of. the obligations
of the holder to make the presentment. 1
§ 295. The reason of all these decisions turns upon
one and the same general principle. The commercial
Law having required a due presentment for payment,
and a due notice of dishonor, these acts are to be deemed
waived or dispensed with, only when, from the nature
or the circumstances of the case, both of them must be
unnecessary or immaterial to the indorsers, who may be
affected thereby. 2 Such a presentment, and such a no-
tice, are, therefore, to be treated as conditions precedent
to the liability of the indorsers, belonging to the lead-
ing character of the contract; and it is of no conse-
quence, that the indorsers may not have been actually
prejudiced thereby. 3 Of course, nothing short of an
express or implied agreement, or a waiver of such pre-
sentment and notice, ought to bind the indorsers ; and
such an agreement, or a waiver, ought never, in deroga-
tion of their admitted rights, to be inferred from doubt-
ful or equivocal acts or circumstances, which are capable
of different interpretations. 4
§ 296. We have thus considered the principal excuses
for want of due presentment of Promissory Notes for
payment at their maturity, which are usually insisted on
by the holder in suits against the indorsers, and of which
i Dwight v. Scovil, 2 Connect. R. 654 ; Story on Bills, § 376. But see
Stevens v. West, 1 Howard, Mississippi R. 308.
2 French's Executors v. Bank of Columbia, 4 Cranch, R„ 141 ; Cauntu.
Thompson, 7 Manning, Gr. & Scott, R. 400.
3 Bayley on Bills, ch. 7, § 2, p. 302, 303, (5th edit. 1830) ; Story on
Bills, $ 311 ; Pierce v. Whitney, 16 Shepley, R. 188.
4 Story on Bills, § 377.
CH. VII. J EXCUSES FOE NON-PRESENTMENT. 363
the validity or invalidity seems proper to be considered
in this place. The subject, however, will again occur in
another connection, that of the want of due notice to
the indorser of the dishonor of the Note, where other
and additional illustrations will naturally present them-
selves for observation and comment. Indeed, these
excuses most generally occur in cases of want of due
notice; and, as, for the most part, the same principles
apply to, and govern each, we may well postpone the
further examination of the cases, until we may reach the
head of notice.
364 PROMISSORY NOTES. [CH. VIII.
CHAPTER VIII.
NOTICE AND OTHER PROCEEDINGS ON THE DISHONOR OF
PROMISSORY NOTES.
§ 297. Let us now proceed, in the next place, to the
consideration of the notice to be given, and the other
proceedings to be had by the holder, in cases of due
presentment and the dishonor of a Promissory Note.
In cases of foreign Bills of Exchange, it is ordinarily
indispensable for the holder, upon the dishonor of the
Bill, either by non-acceptance or non-payment thereof,
to make due protest thereof before a notary, or other
public officer authorized to make the demand and pro-
test. 1 This, also, is the rule generally prescribed by the
foreign law. 2 But in cases of Promissory Notes, by the
English and the American Commercial law, no protest
is required to be made upon the dishonor thereof. 3 If
there are any exceptions in America, they stand upon
the positive requirement of some statute, or of some
general usage equally obligatory. 4 The practice, how-
1 Story on Bills, § 176, 273-278 ; 3 Kent, Comm. Lect.44,p. 93-95,
(5th edit.) ; 2 Black. Comm. 469, 470 ; Chitty on Bills, ch. 8, p. 361-
365, 374, (8th edit.) ; Id. p. 489, 490 ; Bayley on Bills, ch. 7, § 2,
p. 258-266, (5th edit.)
2 Story on Bills, $ 274 ; Solarte v. Palmer, 7 Bing. R. 530, 533.
3 Burke v. McKay, 2 How. Sup. Ct. R. 66 ; Young v. Bryan, 6 Wheat.
R. 146 ; Solarte v. Palmer, 7 Bing. R. 530, 533 ; Coddington v. Davis,
1 Comstock, R. 186 ; S. C. 2 Denio, R. 17 ; Smith v. Gibbs, 2 Smedes
& Marshall, R. 479.
4 3 Kent, Comm. Lect. 44, p. 94, (5th edit.) ; Bayley on Bills, ch. 7,
CH. VIII.] PROCEEDINGS ON NON-PAYMENT. 365
ever, prevails in several of our commercial cities, to have
Promissory Notes presented for payment by notaries
public, and, if dishonored, to have them protested. 1
But this is not deemed to be a practice, which changes
the general rule of law; it is simply an arrangement
made for the convenience of the holder, (and principally
when the Note is held by a bank,) by which, in effect,
the notary is made a substituted agent for the holder. 2
[It has become so common, that the term protest, though
strictly inapplicable to a Promissory Note, is understood
to mean, when used in a general sense among mer-
§ 2, p. 265, (5th edit.) ; Chitty on Bills, ch. 10, p. 501, (8th edit.) ;
Young- v. Bryan, 6 Wheat. R. 146 ; Union Bank v. Hyde, 6 Wheat. R.
572 ; Nicholls v. Webb, 8 Wheat. R. 326 ; Bank of North America v.
McKnight, 1 Yeates, 145 ; Hubbard v. Troy, 2 Iredell, R. 134 ; City
Bank v. Cutter, 3 Pick. R. 414 ; Rahm v. the Philadelphia Bank, 1 Rawle,
R. 335 ; Read v. Bank of Kentucky, 1 Monroe, R. 91 ; Whiting v.
Walker, 2 B. Monroe, R. 262 ; Merritt v. Benton, 10 Wend. R. 116 ;
Kyd on Bills, ch. 7, p. 142, (3d edit.) ; Cunningham on Bills, § 7, p. 40,
41 ; Thomson on Bills, ch. 6, § 2, p. 442, 443, (2d edit.)
1 Merritt v. Benton, 10 Wend. R. 116 ; Bank of Utica v. Smith, 18
John. R. 230, 240 ; Burke v. McKay, 2 How. Sup. Ct. R. 66.
2 Nicholls v. Webb, 8 Wheat. R. 326, 331. In this case, the Court
said ; " It does not appear, that, by the laws of Tennessee, a demand of
the payment of Promissory Notes is required to be made by a notary pub-
lic, or a protest made for non-payment, or notice given by a notary to the
indorsers. And, by the general Commercial Law, it is perfectly clear,
that the intervention of a notary is unnecessary in these cases. The nota-
rial protest is not, therefore, evidence of itself, in chief, of the fact of
demand, as it would be in cases of foreign Bills of Exchange; and, in
strictness of law, it is not an official act. But we all know, that, in point
of fact, notaries are very commonly employed in this business ; and in
some of the States it is a general usage so to protest all dishonored Notes,
which are lodged in, or have been discounted by, the bank. The practice
has, doubtless, grown up from a sense of its convenience, and the just
confidence placed in men, who, from their habits and character, are likely
to perform those important duties with punctuality and accuracy. We
may, therefore, safely take it to be true in this case, that the protesting of
Notes, if not strictly the duty of the notary, was in conformity to general
practice, and was an employment in which he was usually engaged."
31 *
366 PROMISSORY NOTES. [CH. VIII.
chants, not merely the act of the notary, but all the
steps necessary to be taken to charge an inclorser, as
demand and notice. 1 ] In many cases, the protest even
of a Note by a notary may be important to the holder
in point of evidence, as, in case of his death, it may be
admissible to establish the fact of a due presentment to
the maker, and due notice to the indorser. 2
1 Coddington v. Davis, 3 Denio, R. 17; Seneca Co. Bank v. Neass,
5 Denio, R. 330.
2 Nicholls v. Webb, 8 Wheat. R. 326, 331. The question as to the
admissibility of the books of a notary, after his decease, to establish the
fact, that he had made a due demand of the maker of the Note, and given
due notice to the indorser, was much considered, and decided in the affirm-
ative, in this case. On this occasion, the Court said ; " Ifhe (the notary)
had been alive at the trial, there is no question that the protest could not
have been given in evidence, except with his deposition, or personal
examination, to support it. His death gives rise to the question, whether
it is not, connected with other evidence, and particularly with that of his
daughter, admissible secondary evidence for the purpose of conducing to
prove due demand and notice. The rules of evidence are of great im-
portance, and cannot be departed from without endangering private as well
as public rights. Courts of law are, therefore, extremely cautious in the
introduction of any new doctrines of evidence, which trench upon old and
established principles. Still, however, it is obvious, that as the rules of
evidence are founded upon general interest and convenience, they must,
from time to lime, admit of modifications, to adapt them to the actual con-
dition and business of men, or they would work manifest injustice ; and
Lord Ellenborough has very justly observed, that they must expand ac-
cording to the exigencies of society. Pritt v. Fairclough, 3 Camp. R. 305.
The present case affords a striking proof of the correctness of this remark.
Much of the business of the commercial world is done through the medium
of Bills of Exchange and Promissory Notes. The rules of law require,
that due notice and demand should be proved, to charge the indorser.
What would be the consequence, if, in no instance, secondary evidence
could be admitted, of a nature like the present.? It would materially im-
pair the negotiability and circulation of these importnnt facilities to com-
merce, since few persons would be disposed to risk so much property
upon the chance of a single life ; and the attempt to multiply witnesses
would be attended with serious inconveniences and expenses. There is no
doubt, that, upon the principles of law, protests of foreign Bills of Ex-
change are admissible evidence of a demand upon the drawee ; and upon
CH. VIII.] PROCEEDINGS ON NON-PAYMENT. 367
§ 298. By the French Law, and, indeed, by the gene-
ral law of the commercial nations of continental Europe,
what foundation does this doctrine rest, but upon the usage of merchants,
and the universal convenience of mankind 1 There is not even the plea of
absolute necessity to justify its introduction, since it is equally evidence,
whether the notary he living or dead. The law, indeed, places a confi-
dence in public officers ; but it is here extended to foreign officers acting as
the agents and instruments of private parties. The general objection to
evidence, of the character of that now before the Court, is, that it is in
the nature of hearsay, and that the party, is deprived of the benefit of cross-
examination. That principle, also, applies to the case of foreign protests.
But the answer is, that it is the best evidence the nature of the case ad-
mits of. If the party is dead, we cannot have his personal examination
on oath; and the question then arises, whether there shall be a total fail-
ure of justice, or secondary evidence'shall be admitted to prove facts, where
ordinary prudence cannot guard us against the effects of human mortality?
Vast sums of money depend upon the evidence of notaries and messengers
of banks; and if their memorandums, in the ordinary discharge of their
duty and employment, are not admissible in evidence after their death, the
mischiefs must be very extensive. But how stand the authorities upon
this subject? Do they as inflexibly lay down the general rule as the ob-
jection seems to imply? The written declarations of deceased persons,
and entries in their books, have been for a long time admitted as evidence,
upon the general ground, that they were made against the interest of the
parties. Of this nature are the entries made by receivers of money charg-
ing themselves, rentals of parties, and bills of lading signed by masters of
vessels. More than a century ago, it was decided, that the entries in the
books of a tradesman, made by a deceased shopman, were admissible as
evidence of the delivery of the goods, and of other matters there stated
within his own knowledge. So, in an action on a tailor's bill, a shop book
was allowed as evidence, it being proved, that the servant who wrote the
book was dead, and that this was his hand, and he was accustomed to
make the entries. In the case of Hicham v. Ridgeway, 10 East, R. 109,
it was held, that the entry of a midwife in his books, in the ordinary course
of his business, of the birth of a child, accompanied by another entry in
his ledger, of the charge for the service, and a memorandum of payment
at a subsequent date, was admissible evidence of the time of the birth. It
is true, that Lord Ellenborough, in giving his own opinion, laid stress
upon the circumstance, that the entry admitting payment was to the preju-
dice of the party, and, therefore, like the case of a receiver. But this
seems very artificial reasoning, and could not apply to the original entry in
the day-book, which was made before payment; and even in the ledger
the payment was alleged to have been made six months after the service.
368 PROMISSORY NOTES. [CH. VIIL
and of Scotland, no distinction is in this respect made
between foreign Bills of Exchange and Promissory
So that, in truth, at the time of the entry, it was not against the party's
interest. And Mr. Justice Le Blanc, in the same case, after observing 1 ,
that he did not mean to give any opinion, as to the mere declarations or
entries of a midwife who is dead respecting the time of a person's birth,
being made in a matter peculiarly within the knowledge of such a person,
as it was not necessary then to determine that question, significantly said ;
' I would not be bound at present to say, that they are not evidence.' In
the recent case of Hagedorn v. Reid, 3 Camp. R. 379, in a suit on a policy
of insurance where a license was necessary, the original not being found,
it was proved, that it was the invariable practice of the plaintiff's office,
(he being a policy broker,) that the clerk, who copies any license, sends
it off by post, aud makes a memorandum on the copy of his having done
so ; and a copy of the license in question was produced from the plain-
tiff's letter-book, in the handwriting of a deceased clerk, with a memoran-
dum on it, stating, that the original was sent to Doorman ; and a witness,
acquainted with the plaintiff's mode of transacting business, swore, that
he had no doubt the original was sent according to the statement in the
memorandum. Lord Ellenborough held this to be sufficient evidence of
the license. And in Pritt v. Fairclough, 3 Camp. R. 305, the same learned
Judge held, that the entry of a copy of a letter in the letter-book of a party,
made by a deceased clerk, and sent to the other party, was admissible in
evidence, the letter-book being punctually kept, to prove the contents of the
letter so sent. And he observed, on that occasion, that, if it were not so,
there would be no way in which the most careful merchant could prove the
contents of a letter after the death of his entering clerk. The case of
Welsh v. Barrett, which has been cited at the bar from the Massachusetts
Reports, is still more directly in point. It was there held, that the memo-
randums of a messenger of a bank, made in the usual course of his em-
ployment, of demands on promisors, and notices to indorsers, in respect
to Notes left for collection in the bank, were, after his decease, admissible
evidence to establish such demands and notices. And the learned Chief
Justice of the Court, on that occasion went into an examination of the
grounds of the doctrine, and put the very case of a notarial demand and
protest of Notes, which had been suggested at the bar as a more correct
course, as not distinguishable in principle, and liable to the same objections
as the evidence then before the Court. We are entirely satisfied with that
decision, and think it is founded in good sense and public convenience. We
think it a safe principle, that memorandums made by a person in the ordi-
nary course of his business, of acts or matters which his duty in such bu-
siness requires him to do for others, in case of his death, are admissible
evidence of the acts and matters so done. It is of course liable to be im~
CH. VIII.] PEOCEEDINGS ON NON-PAYMENT. 369
Notes. In each case, a protest for the dishonor, in cases
of non-payment on presentment thereof, is equally re-
quired, and is equally indispensable. 1
§ 299. In every case of the dishonor of a Promissory
Note, it is the duty of the holder to give due notice
thereof to all the prior parties on the Note, who are
liable to make payment to him, and to whom he means
to look for payment. [And this is equally true if the
Note is payable on demand. 2 ] If he fails to give due
notice to anjr of the prior parties so liable, then all are
discharged from liability to him, and the want of such
notice is fatal to his entire claim against them. 3 If he
gives due notice to one of the prior parties, and not to
the others, then the latter are in law discharged, al-
though the former may be held to payment. Such is
the general rule ; but there are certain exceptions to its
operation, which will presently come under our consi-
deration.
pugned by other evidence ; and to be encountered by any presumptions or
facts, which diminish its credibility or certainty. A fortiori we think the
acts of a public officer, like a notary public, admissible, although they may
not be strictly official, if they are according to the customary business of his
office, since he acts as a sworn officer, and is clothed with public authority
and confidence." [See also Banvard v. Planters Bank, 4 Howard, Mis-
sissippi R. 98; Ogden v. Glidewell, 5 Ibid. 179; White v. Englehard,
21 Smedes & Marshall, 38. It has been decided in New Hampshire, that,
where the indorser of a Note lives in one State and the maker in another,
the operation of the indorsement is so far similar to the drawing of a Bill
of Exchange, that, in an action against the indorser, the dishonor of it may
be proved by a protest. Williams v. Putnam, 14 N. Hamph. 540. See
also, Seneca Co. Bank v. Neass, 5 Denio, R. 329.]
1 Code de Comm. art. 175, 187; Pothier De Change, n. 133, 220;
Jousse, Sur L'Otd. 1673, lit. 5, art. 32, p. 131, (edit. 1802) ; Pardessus,
Droit Comm. Tom. 2, art. 479, 480; Thomson on Bills, ch. 6, § 2, p.
442, 443, (2d edit ) See Baldasseroni, Del Cambio, pt. 2, art. 8, § 1-3,
28-50 ; Heinecc. de Camb. cap. 6, § 4 ; Story on Bills, § 274, 379.
2 Lockwood v. Crawford, 18 Conn. R. 361.
3 Bayley on Bills, ch. 7, § 1, p. 217, (5th edit.)
370 PROMISSORY NOTES. [CH. VIII.
§ 300. Let us, then, in the first place, enter upon the
consideration of the various doctrines, applicable to the
subject of notice in its general relations; and afterwards
we shall be at liberty to examine the exceptions to these
doctrines. The subject may be conveniently distribu-
ted into the following heads. (1.) First, By whom
notice is to be given ; (2.) Secondly, to whom notice is
to be given ; (3.) Thirdly, at what place, and within
what time, it is to be given; (4.) Fourthly, In what
mode or manner ; (5.) Fifthly, The form of the notice ;
and when it is good or not.
§ 301. In the first place, then, by whom is notice to
be given of the dishonor of a Promissory Note ? The
general rule is, that it is to be given by the holder, or
by some agent, or other person duly authorized by
him, 1 or, at all events, by some person who is himself
liable to pay the Note, and is a party thereto. The
reason is not merely, that the indorser may immediately
call upon those, who are liable to him for indemnity ;
but that he may know, that the holder means to stand
upon his legal rights and resort to him for payment. 2
If notice be given by a third person, or by a mere
stranger not so authorized, it amounts to a mere nul-
lity ; for knowledge of the dishonor by the indorser is
not notice to him that the holder intends to hold him
liable to pay the same, since it is quite competent for
the holder to waive his rights ; and a third person, or
stranger, cannot, by his officious intermeddling, establish
any rights of the holder, or defeat any discharge or
1 Chitty on Bills, ch. 10, p. 525-532, (8th edit.) ; Bayley on Bills, eh.
7, § 2, p. 254, (5th edit.) ; Story on Bills, § 303, 304.
2 Chitty on Bills, ch. 8, p. 368, (8th edit. ) ; Id. ch. 10, p. 501 ; Per
Buller, J., in Tindal v. Brown, 1 Term R. 170.
CH. VIII.] proceedings on non-payment. 371
defence of the indorser. 1 Nor would a subsequent
adoption of the notice of a stranger by the holder vary
1 Ibid. ; Ex parte Barclay, 7 Ves. 597, 598 ; Steward v. Kennett,
2 Camp. R. 177 ; Bayley on Bills, ch. 7, § 2, p. 254, (5th edit.) ; Chitty
on Bills ch. 10, p. 526, 527, (8th edit.); Chanoine v. Fowler, 3 Wend. R.
173 ; Story on Bills, § 303, n. ; 3 Kent, Comm. Lect. 4, p. 108, (5th
edit.) ; Thompson (on Bills, ch. 6, § 4, p. 494-496, 2d edit.) says ; " By
what party notice must be given, to preserve the holder's recourse against
the party receiving it, has been much discussed, and is not yet satisfacto-
rily settled. The chief purpose of this notice is, that the party receiving
it may secure his relief from the parties liable to him against the claim
made upon him under the Bill or Note ; and therefore, such notice, if it
does not state, must at least afford him reason to believe, that a claim will
be made against him. But his belief of this must depend much on the
party from whom the notice proceeds. His mere knowledge, that the Bill
or Note has not been accepted or paid, affords no ground for such a belief;
because it does not thence follow, that the holder will resort to him for
payment. Information, therefore, of non-acceptance or non-payment, by
a stranger, who has no concern with the Bill or Note, and does not act
for any party to it, is not equivalent to notice, as it amounts to no more
than the casual knowledge now mentioned. In one case, indeed, in Scot-
land, private knowledge seems to have been admitted, at least as an ele-
ment of notice. But in that case, ' there was that sort of intercourse
among the parties, which left it to be inferred, that the indorser was
aware not merely of the dishonor, but of the bolder looking to him for
payment ; particularly, there was a meeting "*' the parties, at which the
acceptor made a partial payment.' This h^ circumstance showed that the
holder was in cursu of enforcing payment from the acceptor ; and, as the
defender seems to have been a party « this payment, he must, from it, as
from other circumstances, have be^i convinced, that he would be called on
for payment, failing the acceptor. Supposing, therefore, that this case
were a fit precedent, which nas been doubted, it cannot impeach the rule,
that information by a stronger, or in other words, mere casual knowledge,
is not equivalent to not/ce. But if the drawer or indorser gets information,
whether from the holder or not, which certiorates him, that the latter in-
tends to claim recourse from him, the purpose of notice, namely, to enable
him to take pleasures for his security, is answered. This is the only prin-
ciple which appears capable of supporting the decision last cited. The
same doctrine may perhaps have been in view in another case, where
evidence was admitted to prove, that the drawer had expressed his belief
to the holder, that the Bill would be returned unpaid ; but such an expres-
sion of belief, before the Bill was due, would not probably be held equiva-
lent to a subsequent certainty, either that the Bill was not paid, or that ths
372 PROMISSORY NOTES. [CH. VIII.
the result ; for it is not a case, to which the doctrine
has been applied, that a subsequent ratification is equi-
valent to an original authority, and, by relation, goes to
the establishment of the act done ab initio, upon the foot-
ing of the maxim, Omnis ratihabitio retrotrahitur, et man-
date) priori ceqaiparatur.
§ 302. But a person, who is a party to the note, is
not ordinarily to be treated as a mere stranger, in the
sense of the rule. If he be a party to the Note, and at
all events, if he be at the time entitled to call for pay-
ment, or for reimbursement, 1 notice from him will now
be held sufficient, although formerly it seems to have
been otherwise held. 2 Hence, a notice from the holder,
holder claimed recourse. It has been held at Nisi Prius, to be proof of
the drawer having got notice, that he intimated to the holder, that he would
defend any action on the Bill, as he had been defrauded, but did not then
allege want of notice."
i Bayley on Bills, ch. 7, $ 2, p. 254, (5th edit.)
2 Chitty on Bills, ch. 10, p. 525 - 527, (8th edit.) ; 3 Kent. Coram. Lect.
44, p. 108, (5th edit); Thomson on Bills, ch. 6, §4, p. 496,497, (2d edit.) ;
Story on Bills, § 294, 302, 304 ; Ex parte Barclay, 7 Ves. 597. In Tin-
dalv. Brown, 1 Term. R. 167, 170, Mr. Justice Buller said; "With
respect to notice, I concur in + ne opinion which has been given by the
Court, and particularly for the i°ason given by my brother Ashhurst.
The purpose of giving notice is not merely that the indorser should know
that the Note is not paid, for he is chargeable only in a secondary degree ;
but to render him liable, you must show, that the holder looked to him
for payment, and gave him notice that he did to. A case might easily be
put, where the indorser might have notice from tVe holder, and yet would
not be liable ; as if, in the present case, the holder ^ a d written a letter to
the indorser, containing the circumstances which have been given in evi-
dence, the indorser would have been discharged ; Wause it would
have amounted only to this ; ' The Note made by Donaldson and indorsed
by you, is not paid, and I have given credit to Donaldson till to-mormw.'
Though there is no prescribed form of this kind of notice, yet it must im-
port, that the holder considers the indorser as liable, and expects payment
from him, that he may have his remedy over by an early application ; then
it becomes his business to take up the Note. But notice of having given
®redit to the maker, will discharge the indorser. The notice by another
OH. VIII.] PROCEEDINGS ON NON-PAYMENT. 373
or any other party, will inure to the benefit of every
other party, who stands between the person giving the
person to the indorser, can never be sufficient ; but it must proceed from the
holder himself." In Ex parte Barclay, 7 Ves. 597, 598, where the point
also arose, Lord Eldon said ; " The settled doctrine is according to the lan-
guage of Mr. Justice Buller inTindal v. Brown ; and there is great reason
in it ; for the ground of discharging the drawer is, that the holder gives
credit to some person liable as between himself and the drawer. Notice
from any other person, that the Bill is not paid, is not notice, that the
holder does not give credit to a third person. The doctrine has been acted
upon very often since." The contrary doctrine was held in Jameson v.
Swinton, 2 Camp. R. 373, and Wilson v. Svvabey, 1 Stark. R. 34. In
Chapman v. Keane, 3 Adolp. & Ellis, 193, 196, 197, Lord Denman, in
delivering the opinion of the Court, said ; "On the trial of this action by
the indorsee against the drawer of a Bill of Exchange, the Lord Chief
Justice of the Common Pleas directed a nonsuit, for want of due notice of
dishonor. The Bill had been indorsed by the plaintiff, by the desire of
Wiltshire, who had discounted it, and left it in the hands of the plaintiff's
clerk, with instructions to obtain payment, or give notice of dishonor. He
did give notice to the defendant, but in the name of the plaintiff, not in
thaj; of Wiltshire, the then holder, who had deposited the Bill with him,
The objection to the plaintiff's recovery was founded on the case of Tindal
v. Brown, in which all the Judges of this Court, except Lord Mansfield,
considered a notice given by one, who was not the holder, as no notice, on
the ground, that the drawer was not thereby apprized of the holder's inten-
tion to look to him for payment ; and this case was distinctly recognized,
and its principle adopted, by Lord Eldon, in Ex parte Barclay. Notwith-
standing these high authorities, it is clear, from Jameson v. Swinton, Wil-
son v. Swabey, and also from the learned treatises on Bills of Exchange,
that the contrary doctrine has prevailed in the profession, and we must
presume a contrary practice in the commercial world. It is universally
considered, that the party entitled as holder to sue upon the Bill, may
avail himself of notice given in due time by any party to it. In the Nisi
Prius cases just referred to, no express allusion was made to Tindal u.
Brown, or Ex parte Barclay, but we can hardly conceive that they were
not present to the recollection of Lord Ellenborough and Mr. Justice Law-
rence, or the counsel engaged. These learned Judges, indeed, decided
them at Nisi Prius, but without question. We are now compelled to
determine, whether the case of Tindal v. Brown, as to this point, be good
law. We think that it is not. If it were, the holder might secure his
own right against his immediate indorser by regular notice ; but the latter,
and every other party to the Bill, would be deprived of all remedy against
anterior indorsers and the drawer, unless each of those parties should in
prom, notes. 32
374 PROMISSORY NOTES. [CH. VIII.
notice, and the person to whom it is given. 1 Therefore,
a notice from the last indorsee to the first indorser, will
succession take up the Bill immediately on receiving notice of dishonor, a
supposition which cannot he reasonably made. We may add, that this
point was not necessary for the decision of the case, as this Court, includ-
ing Lord Mansfield, granted a new trial on a different ground." It does
not appear, that in any of these cases the question directly arose, whether
notice, given by an indorser on the Bill, who had no notice himself from
any one, which could make him liable to the holder thereon, to any ante-
cedent party on the Note, would be sufficient notice "to bind the latter, so
that the holder might recover against him, although he had not himself
given him any notice whatsoever. Mr. Bayley (as we shall immediately
see) lays down the doctrine in very guarded terms. "The notice must
come from the holder, or from some party entitled to call for payment, or
reimbursement." Bayley on Bills, ch. 7, § 2, p. 254-256. Mr. Thom-
son (on Bills, ch. 6, $ 4, p. 496, 497, 2d edit.) seems to consider the law
to be now settled, that notice from any party on the Note will inure for the
benefit of the holder and all other parties, without any distinction, whether
the party is himself bound to pay the Note or not. His language is :
" The English Courts seem to have at first too much narrowed the limits
of notice. In one case, opinions are expressed, that notice ought to be
given in all cases by the holder. But the only point as to notice then be-
fore the Court was, whether a request by the grantor of a Note to the
defendant to take it up, was equivalent to notice by the holder ; and the
Court may probably have been thus led to lay it down, that, in that case,
notice could proceed only fiom the holder, without adverting to the other
question of the validity of notice by an indorser. The case was decided
on another ground. But the opinion now referred to was followed after-
wards by an eminent authority, who, after citing the opinion of Mr. Jus-
tice Buller, as importing that effectual notice could only come from the
holder, and stating that it had been frequently acted on since, decided, on
that ground, that notice by the indorser of a Bill could not be available to
the holder. But this doctrine seems not to be consistent with the princi-
ples which have been since established. 1st. It appears to be settled, that
notice by an indorser to the drawer, or a prior indorser of a Bill or note,
will inure to the benefit of any intervening party. No intervening party
can have a claim against the drawer or prior indorser, without paying to
the party who gave notice, and, by doing so, he acquires all his rights,
1 Bayley on Bills, ch. 7, § 2, p. 255,256, (5th edit.) ; Wilson v. Swabey,
1 Starkie, R. 34; Chitty on Bills, ch. 10, p. 527, (8th edit.); Story on
Bills, § 303, 304, 528, (8th edit.) ; Chapman v. Keane, 3 Adolp. & Ellis,
193; Rogersonu. Hare, 1W.W.& D. 65 ; S. C. 1 (English) Jurist, 71.
CH. VIII.] PROCEEDINGS ON NON-PAYMENT. 375
operate as a notice from each of the intermediate indor-
sees. 1 So, if the holder, or any other party, give no
notice but to the person, who is his immediate indorser
on the Note ; yet, if notice be communicated by the
latter, without laches, to the prior parties, the holder
may avail himself of such communication of notice, and
sue any such prior parties ; for it is not, under such
circumstances, necessary, that the notice should come
immediately from the holder, since it does come from
one, who is liable to pay the Note, and is entitled to
reimbursement from such prior parties. 2 Under such
and, among others, the benefit of the notice given by him. As it may not
be certain, however, whether the holder has given notice to all the prior
parties, it is prudent in any indorser from whom payment is demanded, to
give notice, as soon as he gets it, to all the previous parties, in order to
secure his recourse against them. For, if he has got notice, it will not
afford him any defence, that the holder has not given notice to the previous
parties, from whom he himself is entitled to claim recourse. 2d. Although
the holder of a Bill or Note should give notice only to his immediate in-
dorser, he may avail himself of notice to any prior party, whether it pro-
ceeds from his indorser, or from some earlier indorser to whom the latter
has given notice. This rule is conformable with the purpose of giving no-
tice, as the party receiving it is put sufficiently on his guard, if it comes
from any person who has a right to exact, and intends to exact, payment,
and that, whether payment is exacted by that party under his right of re-
course, or by the holder. Accordingly, it has been decided in two cases,
where actions were brought by the last indorsee against the drawer, that
notice to a drawer or indorser by the plaintiff's indorser was available to
the plaintiff, being held sufficient to ' serve all the purposes for which no-
tice is required,' seeing the drawer or indorser was thus enabled ' to take
it up if he pleases, and he may immediately proceed against the acceptor
or prior indorsers.' In a later case, it was decided by the Court of King's
Bench, on a review of all previous decisions, that the holder of a Bill may
avail himself of notice given by any person, who is a party to it. The
law may, therefore, be now considered as settled."
i Ibid.
2 Bayley on Bills, ch. 7, § 2, p. 256, (5th edit.) ; Stafford v. Yates, 18
John. R. 327. Mr. Bayley (ch. 7, § 2, p. 254-248) has very succinctly
stated the doctrine in these words ; " The notice must come from the
holder, or from some party entitled to call for payment or reimbursement.
376 PROMISSORY NOTES. [CH. VIIL
circumstances the rule is applicable, that he, who is
ultimately bound to pay the money, as a first inclorser,
may be made directly and immediately liable to pay it
to a remote indorsee ; since he would be circuitously
compellable to pay it. 1
It lias, indeed, been held, that notice from the acceptor to the drawer, that
he had not been able to pay it, and that it was then in plaintiff's hands,
was sufficient ; but that might, perhaps, have been on the ground, that the
acceptor wrote for the plaintiff, and as his agent. A notice from the
holder, or any other party, will inure to the benefit of every other party,
who stands between the person giving the notice and the person to whom
it is given. Therefore, a notice from the last indorsee to the drawer will
operate as a notice from each indorser. It is, nevertheless, prudent in
each party, who receives a notice, to give immediate notice to those parties
against whom he may have right to claim ; for the holder may have omit-
ted notice to some of them, and that will be no protection ; or there may
be difficulties in proving such notice. Though a holder, or any other party,
give no notice but to the person of whom he took the Bill, yet, if notice
be communicated without laches to the prior parties, he may avail himself
of such communication, and sue any of such prior parties ; it is no objec-
tion in such case, that there was no notice immediately from the plaintiff
to the defendant."
1 Riddle v. Mandeville, 5 C'ranch, R. 322. A remote indorsee cannot,
according to the local law of Virginia, maintain a suit at law against a
remote indorser, on the dishonor of a Promissory Note. And the question
in this case was, whether he might in equity maintain such a suit.* The
Court held, that he might. Mr. Chief Justice Marshal, in delivering the
opinion of the Court, after adverting to the fact, that each indorsee might
maintain a suit at law against his immediate indorser, and the latter against
his immediate indorser, and so, successively, up to the first indorser, pro-
ceeded to say ; " If there were twenty successive indorsers of a Note,
this circuitous course might be pursued, and, by the time the ultimate
indorser was reached, the value of the Note would be expended in the
pursuit. This circumstance alone would afford a strong reason for enabling
the holder to bring all the indorsers into that Court which could, in a
single decree, put an end to litigation. No principle adverse to such a
proceeding is perceived. Its analogy to the familiar case of a suit in
Chancery, by a creditor against the legatees of his debtor, is not very
remote. If an executor shall have distributed the estate of his testator,
the creditor has an action at law against him, and he has his remedy
against the legatees. The creditor has no action at law against the lega-
tees. Yet it has never been understood, that the creditor is compelled to
CH. viil] proceedings on non-payment. 377
§ 303. From the general language used in some of
the authorities, and in some of the text-books, it might
seem, that notice from any party to the Note, whether
he was liable to pay the same, or entitled to reimburse-
resort to his legal remedy. He may bring the executor and legatees both
before a Court of Chancery, which Court will decree immediate payment
from those who are ultimately bound. If the executor and his securities
should be insolvent, so that a suit at law must be unproductive, the creditor
would have no other remedy than in equity, and his right to the aid of that
Court could not be questioned. If doubts of his right to sue in Chancery
could be entertained while the executor was solvent, none can exist after
he had become insolvent. Yet the creditor would have no legal claim on
the legatees, and could maintain no action at law against them. The
right of the executor, however, may, in a Court of Equity, be asserted by
the creditor, and, as the legatees would be ultimately responsible for his
debt, equity will make them immediately responsible. In the present case,
as in that which has been stated, the insolvency of M'Clenachan furnishes
strong additional motives for coming into a Court of Chancery. Mande-
ville and Jameson are ultimately bound for this money, but the remedy at
law is defeated by the bankruptcy of an intermediate indorser. It is only
a Court of Equity which can afford a remedy. This subject may and
ought to be contemplated in still another point of view. It has been
repeatedly observed, that, the action against the indorser is not given by
statute. The contract on which the suit is maintained is not expressed,
but is implied from the indorsement itself, unexplained and unaccompanied
by any additional testimony. Such a contract must, of necessity, conform
to the general understanding of the transaction. General opinion certainly
attaches credit to a Note, the maker of which is doubtful, in proportion to
the credit of the indorsers, but two or more good indorsers are deemed
superior to one. But if the last indorser alone can be made responsible to
the holder, then the preceding names are of no importance, and would add
nothing to the credit of the Note. But this general opinion is founded on
the general understanding of the nature of the contract. The indorser is
understood to pass to the indorsee every right founded on the Note, which he
himself possesses. Among these is his right against the prior indorser. This
right is founded on an implied contract, which is not, by law, assignable.
Yet, if it is capable of being transferred in equity, it vests, as an equitable
interest, in the holder of the Note. No reason is perceived, why such an
interest should not, as well as an interest in any other chose in action, be
transferable in equity. And if it be so transferable, equity will of course
afford a remedy. The defendant sustains no injury, for he may defend
himself in equity against the holder as effectually as he could defend him-
self against his immediate assignee in a suit at law."
32*
378 PROMISSORY NOTES. [CH. VIII.
merit, or not, would be sufficient to bind the party, to
whom notice ought to be given. 1 But, perhaps, this
doctrine is too broadly expressed, and it is certainly
limited by Mr. J. Bayley to cases, where the party
giving the notice is himself liable to pay the same, and
is entitled to reimbursement on payment. 2 Suppose,
for example, a second indorser should give notice to a
first or a third indorser, having received none himself,
and, therefore, not being bound to pay the Note, and
the holder has not given any notice whatsoever to any
of the indorsers, the question in such a case would arise,
whether the notice was available in favor of the holder.
Suppose the last indorser has received no notice from
the holder, and is therefore discharged, would notice by
him to the prior indorsers be available for the holder? 3
1 Chitty on Bills, ch. 10, p. 527, (8th edit.) ; Jameson v. Swinton, 2
Camp. R. 373 ; Wilson v. Swabey, 1 Stark. R. 34 ; Rosher v. Kieran,
4 Camp. R. 87 ; Shaw v. Croft, cited in Chitty on Bills, ch. 10, p. 527,
(8th edit.), note ; Thomson on Bills, ch. G, § 4, p. 498, 499, (2d edit.)
2 Bayley on Bills, ch. 7, § 2, p. 254. But see Thomson on Bills, ch.6,
§ 4, p. 498, 499, (2d edit.), where a different opinion is intimated. Ante,
§ 302, note.
3 Mr. Chitty (on Bills, ch. 10, p. 527, 8th edit.) says ; " However,
according to the more recent decisions, it is not absolutely necessary, that
the notice should come from the person, who holds the Bill, when it has
been dishonored, and it suffices if it be given after the Bill was dishonored,
by any person, who is a party to the Bill, or who would, on the same
being returned to him, and after paying it, be entitled to require reim-
bursement ; and such notice will, in general, inure to the benefit of all the
antecedent parties, and render a further notice from any of those parties
unnecessary, because it makes no difference, who gives the information,
since the object of the notice is, that the parties may have recourse to the
acceptor. And, therefore, it has been held, that if the drawer or indorser
of a Bill of Exchange receive due notice of its dishonor from any person,
who is a party to it, he is directly liable upon it to a subsequent indorser,
from whom he had no notice of the dishonor. And it has been decided,
in an action by the indorsee against the drawer, that it is sufficient if the
drawer had notice of the dishonor even from the acceptor. It is, however,
CH. VIII.] PROCEEDINGS ON NON-PAYMENT. 379
The reason in favor of holding the notice good, where it
is given by a party liable to pay, or entitled to be re-
advisable for each party, immediately upon receipt of notice, to give a
fresh notice to each of the parties, who would thereupon be liable over to
him, and against whom he must prove notice. As already observed, the
notice should be given by some agent or servant, who will be competent to
prove it, and not by the holder in person, in the absence of a competent
witness." Shaw v. Croft, cor. Lord Kenyon, Sittings after Trin. Term,
1798, MS., and see Selw. N. P. (4th edit.) 320, n. 25, was assumpsit by
the holder of a Bill against the drawer. Defence, no regular notice of
dishonor ; but it being proved, that a message had been left at the drawer's
house by the acceptor, stating, that the Bill had been dishonored, Lord
Kenyon said ; " That it made no difference, who apprized the drawer,
since the object of the notice was, that the drawer might have recourse to
the acceptor." Jameson v. Swinton, 2 Camp. 373, was an action by the
second indorsee of a Bill of Exchange, drawn by the defendant, payable
to his own order, and indorsed by him to G. Elsom. The Bill became
due on Saturday, the 8th of July, when it was in the hands of the plain-
tiff's bankers. On Monday, the 10th, they returned it dishonored to the
plaintiffs, who, in the evening of that day, gave notice of the dishonor to
Elsom, their indorser. Elsom, between eight and nine o'clock in the
evening of the following day, gave a like notice to the defendant. The
plaintiffs and Elsom resided in London, the defendant at Islington. For
the defendant, it was insisted, that the plaintiffs were bound to give notice
themselves to the drawer, and all the indorsers against whom they meant
to have any remedy. They could not avail themselves of a notice given
by a third person. Per Lawrence, J. ; "I do not remember to have heard
the first point made before, but I am of opinion, that the drawer or in-
dorser is liable to all subsequent indorsees, if he had due notice of the dis-
honor of the Bill from any person who is a party to it. Such a notice
must serve all the purposes for which the giving of notice is required.
The drawer or indorser is authoritatively informed, that the Bill is dis-
honored ; he is enabled to take it up if he pleases, and he may immediately
proceed against the acceptor or prior indorser, and it does seem to me,
that the defendant in this case had due notice of the dishonor of the Bill
from Elsom. This is allowing only one day to each party, which, when
the parties all reside in the same town, seems now to be the established
rule." Verdict for the plaintiff". Shaw v. Croft, and Rosher v. Kieran,
4 Camp. R. 87, are the only cases, which seem to trench on the rule ; in
the other cases, the party giving notice was liable on the Note. Mr.
Bayley manifestly doubted the case of Rosher v. Kiernan, 4 Camp. R. 87.
See Bayley on Bills, ch. 7, § 2, p. 254, 255. The same question was
much discussed in Stanton v. Blossom, 14 Mass. R. 116, and the Court
decided, that a notice by a party to a Bill (the drawee) was not sufficient.
380 PROMISSORY NOTES. [CH. VIII.
imbursed, is, that it avoids circuity of action. That
reason has not the same cogent application, where the
party, giving the notice, is absolved from all responsi-
bility. 1
On that occasion, Mr. Justice Putnam said ; " But the point of the most
difficulty remains. Shall the information, communicated by the drawees,
avail in this action, as if it had been given by the plaintiffs themselves'?
It has been argued, that the defendants have not been prejudiced at all ;
that their funds, although not appropriated according to their desire, have
yet been applied to the payment of their debts ; that the information,
coming from the drawees, must have been as useful and authentic as could
have been given. It is said, also, that the drawees are a party to the Bill ;
and, that notice from a party to a Bill inures for the benefit of all. In
support of this point, the case of Wilson v. Swabey was cited and relied
on. That was assumpsit by the indorsee against the drawer. The Bill
became due on Thursday ; Lewis, an indorser, was notified on Friday, and
he notified the defendant on Saturday. The objection was, that there
was no notice from the plaintiff; but Lord Ellenborough held, that notice
from any person, who was a party to the Bill, was sufficient. But the
drawee, who refuses to accept, is not a party, or chargeable in virtue of a
Bill ; and notice from him is in no degree better than from any other
stranger. More than twenty years ago, it was decided in the case of
Tindal v. Brown, which was cited in the argument for the plaintiffs, that
notice must come from the holder ; and many later decisions have corrobo-
rated the rule. In a late case in Campbell's Reports, this point is directly
decided. The holder himself, or some one authorized, must give the no-
tice. Now, the indorser, who has been notified by the holder of the dis-
honor of the Bill, may, by reason of his liability, be considered as author-
ized to notify the drawer, for the benefit of the holder, as well as himself;
both having an interest in the matter. They can and ought to inform the
drawer, whether he must pay the Bill ; and that is a material fact to be
communicated to him, and which no stranger is presumed to know. The
Bill may not be duly honored ; and the holder may be willing to accept an
equivalent, or may give credit to the drawee. In such case, the drawer
would be discharged. There is good sense in the rule, which requires the
notice to come from a party liable to be charged upon the Bill, or having
an interest in it ; and the drawer is not to be affected by information from
any other quarter." The case of Chanoine v. Fowler, 3 Wend. R. 173,
recognizes the same doctrine. See, also, Stafford v. Yates, 18 John. R.
327 ; Chapman v. Keane, 3 Adolp. & Ellis, 193, 196-198; Dobree v.
Eastwood, 3 Carr. & Payne, 250 ; Story on Bills, § 294, 303, 304 ; U. S.
Bank v. Goddard, 5 Mason, R. 366, 372.
1 See Turner v. Leech, 4 Barn. & Aid. 451 ; Marsh v. Maxwell, 2
CH. VIII.] PROCEEDINGS ON NON-PAYMENT. 381
§ 304. Iii case of the death of the holder, notice
should be given by his executor or administrator, if one
is appointed at or before the maturity of the Note. 1 If
none is then appointed, it would seem, that notice, given
within a reasonable time after administration is taken or
assumed by the executor or administrator, will be suffi-
cient. 2 If the Note is payable to a partnership, notice
given by any partner will be good for all. If two per-
sons, not partners, be holders, notice by one will be pre-
sumed to be for both. In case of joint holders, whether
partners, or not, if either die, the survivor is the proper
party to give notice, and not the executor or adminis-
trator of the deceased party. This results from a gene-
ral principle of law, that in such cases the legal title in
choses in action, belonging to partners and joint holders,
survives to the surviving parties. 3
Camp. R. 210, note ; Smith v. Mullett, 2 Camp. R.208 ; U. S. Bank v.
Goddard, 5 Mason, R. 366, 372, 373. See Bayley on Bills, ch. 7, § 2,
p. 312, (5th edit.) ; Roscow v. Hardy, 12 East, R. 434. In U. S. Bank
v. Goddard, 5 Mason, R. 372, 373, the Court said ; " It is laid down in
Bayley on Bills, 163, (4th edit.), and better authority can scarcely be, that
' Though a holder or any other party gives no notice but to the person of
whom he took the Bill ; yet, if notice is communicated, without laches to
the prior parties, he may avail himself of such communication, and sue any
of such prior parties. It is no objection, in such case, that there was no
notice immediately from the plaintiff to the defendant.' And this doctrine
is fully supported by decided cases. Jameson v. Swinton, 2 Camp. R.
373 ; Wilson v. Swabey, 1 Stark. R. 34 ; Stanton v. Blossom, 14 Mass.
R. 116; and Stafford v. Yates, 18 Johns. R. 327, are in point. The
reason seems to be, that as the notice is sufficient to charge the defendant
with the payment in favor of the person, who gives it, it ought to charge
him in favor of all subsequent parties, because he sustains no injury from
want of notice. It is, as to him, due notice." See, also, Story on Bills,
§303, 304, and note.
1 Chitty on Bills, ch. 6, p. 225, 226, (8th edit.) ; Id. ch. 9, p. 389 ;
Ante, §241.
2 Chitty on Bills, ch. 10, p. 485.
3 See Story on Partnership, § 344 - 346 ; Evans v. Evans, 9 Paige, R.
178 ; Ante, § 239.
382 PROMISSORY NOTES. [CH. VIII.
§ 305. In case of the bankruptcy of the holder, the
legal title to the Note will vest in his assignees by re-
lation from the time of the bankruptcy, as soon as they
ate appointed; 1 and, consequently, notice should be
given by them, if the Note has not arrived at maturity
until after their appointment. If no assignees have
been appointed at the time of the maturity of the Note,
then it would seem to be sufficient, if they give notice
within a reasonable time after their appointment. No-
tice, however, in either case, given by the bankrupt
holder, would, it should seem, be sufficient to bind the
indorser, as the bankrupt stands, as holder, in privity
with the assignees, and may be said to have an interest
in the Note, 2 and to represent his estate until assignees
have been chosen. 3 A fortiori, it would be so, if the
assignees should ratify the act of the bankrupt in giving
notice.
§ 306. If the holder be an infant, it will be sufficient,
if the notice of the dishonor be given by the infant
himself, or, if he has a guardian, by the latter. 4 The
same rule would seem to apply to any other persons
under guardianship. If the holder be a single woman,
and she marries before the maturity of the Note, notice
of the dishonor should be given by her husband. 5 But
i Chitty on Bills, ch. 6, p. 227, (8th edit.) ; Id. p. 398 ; Ante, § 249.
2 Chitty on Bills, ch. 8, p. 3G8, (8th edit.) ; Id. ch. 9, p. 398. See 3
Kent. Comm. Lect. 44, p. 108, (5th edit.)
3 I am unable to find any authority exactly in point. But it would seem
to be a just result on principle. See Jones v. Fort, 9 Barn. & Cressw.
764, and Ex parte Moline, 19 Ves. 210.
4 Chitty on Bills, ch. 2, p. 23, 24, (8th edit.) ; Story on Bills, §84, 85.
5 Chitty on Bills, ch. 2, p. 26, (8th edit.) ; McNeilage v. Holloway, 1
Barn. & Aid. 218 ; Burrough v. Moss, 10 Barn. & Cressw. 558 ; Connor
v. Martin, 3 Wilson, R. 5 ; Bayley on Bills, ch. 2, § 3, p. 48, 49, (5th
edit.) ; Story on Bills, $ 92, 93 ; Co. Litt. 351 b.
CH. VIII.] PROCEEDINGS ON NON-PAYMENT. 383
notice, if given by her with his consent, will be equally
available ; * and perhaps, as in the event of his death,
without reducing the Note into possession, she would be
entitled to recover the amount, as his survivor, notice
by her, as a party interested in the Note, will, in all
cases, be sufficient. 2 Probably the same rule would be
applied in case of a Note given to a married woman
during the marriage, since it is suable, either in the
name of her husband alone, or in their joint names. 3
[§ 306 a. It remains to consider the effect of an un-
true description of the party in whose behalf the notice
is given ; and on this head a case regarded by the Court
as " perfectly novel," has been recently decided in the
English Exchequer. A Bill was drawn by A. indorsed
by him to B., and by B. to C, in whose hands it was dis-
honored. C.'s attorney gave notice of the dishonor in
due time to A. but stated therein, by mistake, that he
was directed by B. (from whom he had no authority) to
apply for payment of the Bill. On these facts, it was
held, that the misrepresentation of the name of the per-
son on whose behalf notice was given, ought not wholly
to avoid the notice, but only to place the party giving
it in the same situation, as to the party to whom it was
given, as if the representation had been true; and,
therefore, the defendant ought to have every defence
against the plaintiff that he would have had if the no-
tice had really been given by the party named. 4 ]
1 See Chitty on Bills, ch. 2, p. 26, (8th edit.) ; Prestwich v. Marshall,
7 Bing. R. 565 ; Cotes v. Davis, 1 Camp. R. 485 ; Story on Bills, § 92.
2 Gaters v. Madeley, 6 Mees. & Wels. 423 ; Richards v. Richards, 2
Barn. & Adolp. 446 ; Story on Bills, § 92, 93.
3 Barlow v. Bishop, 1 East, R. 432 ; Philliskirk v. Pluckwell, 2 Maule
& Selw. 393 ; Arnold v. Revoult, 1 Brod. & Bing-. R. 445 ; Caters v.
Madeley, 6 Mees. & Wels. 423 ; Story on Bills, § 92, 93, and note.
4 Harrison v. Ruscoe, 15 Meeson & Welsby, 231 ; See also Lysaght v.
384 PROMISSORY NOTES. [CH. VIII.
§ 307. In the next place, as to the persons, to whom
notice is to be given. Of course, from what has been
already suggested, 1 the holder is bound to give notice
to all prior parties upon the Note, whom he means to
hold liable to him upon the dishonor thereof; and sub-
ject to the exceptions herein before stated, 3 if he does
not, those who have not due notice from him, will be
absolved from all liability to pay the Note. 3 Notice to
a known general agent will be equivalent to notice to
his principal. 4 If the party entitled to notice be a bank-
rupt, and assignees have been appointed, and the holder
knows it, notice should be given to them j 5 if no assignees
have been appointed, then notice may be given to the
bankrupt, because (as we have seen) the bankrupt re-
presents his estate till assignees have been chosen. 6 If
the bankrupt has absconded, and a messenger is in pos-
session under the bankruptcy, before the appointment of
assignees, then notice should be given to him. 7
Bryant, 2 Carrington & Kirwan, 1016 ; Crocker v. Getchell, 23 Maine
R. 392.
i Ante, § 299.
2 Ante, § 302, 303.
3 Chitty on Bills, ch. 8, p. 368, 369, (8th edit.) ; Id. ch. 9, p. 398, 399;
Id. ch. 10, p. 528; Story on Bills, § 305 ; Hutz v. Karthause, 4 Wash.
Cir. R. 1 ; Williams v. Bank of United States, 2 Peters, Sup. Ct. R.
200.
4 Thomson on Bills, ch. 6, § 4, p. 501 ; Bayley on Bills, ch. 7, § 2,
p. 311, (5th edit.) ; Smith v. Thatcher, 4 Barn. & Aid. 200; Wilcox v.
Routh, 9 Smedes & Marshall, R. 476.
5 Chitty on Bills, ch. 8, p. 369, (8th edit.) ; Id. ch. 10, p. 528, 529 ;
Rhode v. Proctor, 4 Barn. & Cressw. 517; Thomson on Bills, ch. 6, § 4,
p. 499, 500, (2d edit.) ; 3 Kent, Comm. Lect. 44, p. 199, (5th edit.)
6 Ibid. ; Ante, § 305 ; Ex parte Moline, 19 Ves. 216 ; Thomson on Bills,
ch. 6, § 4, p. 501, (2d edit.) ; Bayley on Bills, ch. 7, § 2, p. 284, (5th
edit.) ; 3 Kent, Comm. Lect. 44, p. 109, (5th edit.)
7 Rohde v. Proctor, 4 Barn. & Cressw. 517. On this occasion, Mr.
Justice Bayley, in delivering the opinion of the Court, said ; " This was
an issue from the Court of Chancery, on the question, whether plaintiffs,
CH. VIII.] PROCEEDINGS ON NON-PAYMENT. 385
§ 308. In cases of partnership, notice should be given
to the firm ; but then notice to either of the partners
as assignees of Messrs. Sawyer, Jobler, & Co., had any debt provable
under the estate of John Soady Rains, a bankrupt. Their claim was upon
five Bills of Exchange, drawn by Rains upon Joseph Lacklan, and in-
dorsed to Sawyer & Co. ; the Bills became due June, 1818, and before
that time Rains and Lacklan had both become bankrupts, and Rains had
not surrendered to his commission. Rains committed his act of bankruptcy
by leaving the kingdom on the 16th of April, 1818. A commission issued
against him on the 20th, and he has never returned. Lacklan became
bankrupt on the 23d of April, 18 IS. When the Bills became due, they
were dishonored, but no notice was left at Rains's house, nor sent to his
assignees ; the house was open at the time, and the messenger in it, and
the holder of the Bills knew the defendants were Rains's assignees, and
the question upon these facts was, whether the want of notice was a bar
to the plaintiff's claim ; and we think it was. When a Bill is dishonored,
it is the duty of the holder to use due diligence to give notice to such of
the parties to the Bill, as would be entitled to a remedy over upon it, if
they took it up, and the holder makes the Bill his own, as against those
parties, and loses his remedy upon the Bill against them by neglecting to
use such diligence. It is no excuse, that the chance of obtaining any
thing upon the remedy over was hopeless, that the person or persons
against whom that remedy would apply were insolvent or bankrupts, or
had absconded. Parties are entitled to have that chance offered to them,
and, if they are abridged of it, the law, which is founded in this respect
upon the usage and custom of merchants, says they are discharged. The
bankruptcy, therefore, of Lacklan is no excuse for the want of due dili-
gence, if such want exist in this case, but the question must be answered
as it would have been had Lacklan continued solvent. Had Lacklan been
solvent, and Rains's assignees had been apprized of the dishonor, they
might, at all events, have pressed Lacklan to pay, and had they thought
fit to take up the Bill, they might have sued him. Of these opportunities
in this case they have been deprived, and the question is, whether they have
been deprived by the want of that diligence, which they had legally a
right to expect from the holders. It is not necessary to decide in this case
whether, in the event of the bankruptcy of a party entitled to notice, the
holder is bound to endeavor to find out his assignees ; nor is it necessary to
say what would be the case, if such a party's house were shut up, and
there were no means afforded there of discovering him or his representa-
tives, for in this case the bankrupt's house continued open ; the agent of
his representatives, the messenger, who was also in some degree his
representative, was there, and a notice there would have reached the
assignees, and have given them the power of considering whether they
prom, notes. 33
386 PROMISSORY NOTES. [CH. VIII.
will be notice to the firm. 1 If the Note be given by a
firm, of which the indorser sought to be charged, is a
partner, no special notice need be given to him of the
dishonor, since he, as one of the firm, must be taken to
have full notice of the dishonor. 2 If there are joint
indorsers, who are not partners, then notice, it should
seem, must be given to each of them ; for notice to one
will not be deemed notice to all ; 3 nor, (as it should
seem) in such a case, would notice to one alone bind
even him. 4
§ 309. If the indorser is absent, or gone abroad, and
he has left a known general agent in his business, it
will be sufficient to leave the notice of the dishonor with
should have taken any, and what steps against Lacklan. In a very
excellent modern publication on the law of Bills of Exchange, combining
the Scotch and English law upon the subject, Thomson on Bills, 535, (Id.
p. 500, 2d edit.) it is laid down, that in case of the bankruptcy of the
drawer or of an indorser, notice must still be given to the bankrupt, ' or
to the trustee vested with his estate for behoof of his creditors,' and he
refers (amongst other decisions) to the case of Ex parte Moline. Whether
this be universally and in all cases true, it is not now necessary to decide ;
all the present case requires is this, that where the bankrupt's house con-
tinues open, and an agent of the assignees there, notice is essential, and a
neglect to give it bars the holder's claim against the bankrupt's estate
The Bills, therefore, were not provable under the commission issued
against the drawer." See Thomson on Bills, ch. 6, § 4, p. 499- 501,
(2d edit.)
1 Thomson on Bills, ch. 6, § 4, p. 501, (2d edit.) ; Porthouse v. Parker,
1 Camp. R. 82 ; Bignold v. Waterhouse, 1 Maule & Sehv. 259 ; Chitty
on Bills, ch. 8, p. 355, 369, 370, (8th edit.) ; Bayley on Bills, ch. 7, § 2,
p. 285, (5th edit.) ; Gowan v. Jackson, 20 John. R. 175 ; Story on Bills'
§ 299, 305 ; Not-t v. Downing, 6 Miller, Louis. R. 684.
2 Thomson on Bills, ch. 6, § 2, p. 501, (2d edit.) ; Chitty on Bills, ch. 8,
p. 370, (8th edit.) ; Rhett v. Poe, 2 How. Sup. Ct. R. 457.
3 Shepard v. Hawley, 1 Connect. R. 368 ; Bank of Chenango v. Root,
4 Cowen, R. 126 ; Willis v. Green, 5 Hill, N. Y. R. 232 ; Post, § 329.
4 Ibid. ; Story on Bills, § 299, and note, § 329 ; Sayre v. Frick, 7
Watts & Sem. 383.
*
CH. VIII.] PROCEEDINGS ON NON-PAYMENT. 387
the agent. 1 But it must be shown, that the agent's
character is of such a nature, as clearly entitles him to
receive notice for his principal. His merely being the
attorney at law of the principal will not be sufficient,
for he is not virtute officii entitled to receive notice. 2 So,
where a Promissory Note is indorsed by an agent or
attorney, in the name of his principal, under a proper
authority to indorse Notes, that is not a sufficient au-
thority for him to receive a notice of the dishonor of the
Note ; for an authority to indorse does not include an
authority to receive notice of dishonor. 3
§ 310. If the indorser entitled to notice is dead, then
notice should be given to his personal representative, if
there is any; 4 if there is none, then notice may, or
should, be left at the domicil of the deceased. 5 If, in
1 See Chateau v. Webster, 6 Met. R. 1 ; Hestres v. Petrovic, 1 Rob.
Louis. R. 119. When notice to a director of a bank is notice to the bank.
See 1 Story, Eq. Jurisp. § 408 a ; Story on Agency, § 140 a, § 140 b ;
24 Pick. R. 270, 276.
2 Crosse v. Smith, 1 Maule & Selw. 545, 552 ; Louisiana State Bank
v. Ellery, 16 Martin, R. 87.
3 See Louisiana State Bank v. Ellery, 16 Martin, R. 87 ; Montillet v.
Duncan, 11 Martin, Louisiana R. 534 ; Crosse v. Smith, 1 Maule & Selw.
545, 552, 552; Agan v. McManus, 11 John. R. 181.
4 Bayley on Bills, cb. 7, § 2, p. 286, (5th edit.) ; Chitty on Bills, ch. 8,
p. 369, 370, (8th edit.) ; Id. eh. 10, p. 474, 528-530 ; Merchants' Bank
v. Birch, 17 John. R. 25 ; Stewart v. Eden, 2 Caines, R. 121. See
Thomson on Bills, ch. 6, § 1, p. 416, 417, (2d edit.) ; Id. § 4, p. 501 ;
Story on Bills, § 305 ; Oriental Bank v. Blake, 22 Pick. R. 206.
5 Ibid. ; Willis u. Green, 5 Hill, N. Y. R. 232. In this last case, Mr.
Chief Justice Nelson seemed to be of opinion, that if one of the joint in-
dorsers (not partners) should die before the maturity of the Note, the sur-
viving indorser would be discharged unless due notice should be given to
the personal representative of the deceased, as well as to the survivor. On
that occasion, he said ; "The plaintiff failed to show, that the estate of
Johnson had been charged by notice of non-payment. If the notice relied
on for that purpose had been sent to the proper place, no doubt it would
have been sufficient, under the circumstances of this case, though directed
*
388 PROMISSORY NOTES. [CH. VIII.
case of the Note of a firm, one of the firm die, notice
should be given to the surviving partners. 1 Whether
notice to the personal representatives of the deceased
would he valid does not appear to be settled by the au-
thorities. But, as in such cases the personal represent-
atives are in equity held liable to pay the same, as well
as the survivors, it may be thought, that this privity and
interest will make such notice good. 2
§ 311. From analogy to the cases already suggested
in respect to the inquiry, by whom notice is to be given, 3
it should seem, that notice of dishonor of the Note should
be given to an infant indorser, or to" his guardian, if he
has one ; for the indorsement is at most voidable and
not void. And the like rule would seem to apply, that
notice should be given to the guardian of a person, who,
since the indorsement, has become non compos ou»nsane.
In case of the marriage of a single woman before or at
the maturity of the Note, notice of the dishonor should
be given to her husband.
to Johnson after his death. Stewart v. Eden, 2 Caines, R. 121 ; The
Merchants' Bank v. Birch, 17 John. R. 25. But the notice was sent to
Little Falls, instead of Salisbury, where Johnson resided ; and if there
were nothing else in the case, I think the failure to charge the estate by
due notice would operate a discharge of both indorsers. It clearly would,
if both were living, as a joint action could not, in such case, be sustained
upon the note. And although the remedy at law survives against Green
alone, yet, as he is entitled to contribution from the estate of his co-
indorser, it seems to me equally obligatory upon the holder to prove that
both were charged, or rather that the estate of the deceased was charged,
so as to secure the remedy over. Otherwise, the whole debt would fall
upon the survivor. The question, however, is not without its difficulties,
and it is unnecessary now to decide it."
1 See Story on Partn. § 344, 347.
2 See Story on Partn. § 347,362 ; Devaynes v. Noble, 1 Meriv. R. 529,
563, 564 ; 1 Story on Equity Jurisp. § 676 ; Wilkinson v. Henderson, 1
Mylne & Keen, R. 582, 588.
3 Ante, § 306.
CH. VIII.] proceedings on non-payment. 389
§ 312. In the next place, as to the place and time of
giving notice of the dishonor of a Promissory Note.
And first, as to the place. Where the party entitled to
notice and the holder resides in the same town or city,
the general rule is, that notice should he given to the
party entitled to it, either personally, or at his domicil,
or place of business. 1 If it is given personally, of course
it is good, wherever he may be found. If it be not per-
sonally given, then it will be sufficient, if it is given, or
left at, or sent to his domicil, or place of business ; and
it need not be at or to both places. 2 It will make no
difference, that his domicil is in one town or city, and
his place of business is in another town or city ; for, in
such a case, the holder has his election. 3 If the parties
entitled to notice are partners, the notice will in like
manner be sufficient, if left at, or sent to, the place of
business of the firm, or of any one partner, or to the
domicil of either of the partners. If the party, entitled
to notice has changed his domicil or place of business
1 Story on Bills, § 235, 236, 297 ; Chitty on Bills, ch. 10, p. 502, 516,
(8th edit.) ; Bayley on Bills, ch. 7, § 2, p. 276, (5th edit.) ; Bank of
Columbia v. Lawrence, 2 Peters, Sup. Ct. R. 582 ; Williams v. Bank of
United States, 2 Peters, Sup. Ct. R. 100 ; Bank of United States v. Hatch,
1 McLean, R. 92 ; Burrows v. Hannegan, 1 McLean, R. 310 ; Franklin
v. Verbois, 6 Miller, Louis. R. 730 ; Wilcox v. McNutt, 2 Howard, Mis-
sissippi R. 776.
2 Bayley on Bills, ch. 7, § 2, p. 276, (5th edit.) ; Story on Bills, § 297,
382 ; Crosse v. Smith, 1 Maule & Selw. 545 ; Bancroft v. Hall, Holt, N..
P. R. 476 ; Franklin v. Verbois, 6 Miller, Louis. R. 727 ; Ireland v. Kip,
10 John. R. 490 ; S. C. 11 John. R. 231 ; Smedes v. Utica Bank, 20
John. R. 372 ; Laporte v. Landry, 17 Martin, R. 359 ; Louisana Slate
Bank v. Rowel, 18 Martin, R. 506 ; Clay v. Oakley, 17 Martin, R. 137 ;
Bank of Columbia v. Lawrence, 1 Peters, Sup. Ct. R. 578 ; Granite Bank
v. Ayers, 16 Pick. R. 392 ; 3 Kent, Comm. Lect. 44, p. 106- 108, (5th
edit.) ; Sheldon v. Benham, 4 Hill, N. Y. R. 129, 133; Ransom v. Mack,
2 Hill, N. Y. R. 587 ; United States v. Barker, 4 Wash. Cir. R. 464 ;
Williams v. Bank of United States, 2 Peters, Sup. Ct. R. 100.
3 Ibid.
33*
390 PROMISSORY NOTES. [CH. VIII.
since he became an indorser, then the notice should be
at his new domicil or place of business, at the time
when the right to notice accrues. 1
§ 313. What constitutes the clomicil or place of busi-
ness of the party, entitled to notice, is, in many cases, a
mixed question of law and of fact. If the party is a
housekeeper, that is his domicil where his family resides.
If he is not a housekeeper, but lives at lodgings or at a
boarding house, then that place is deemed his domicil. 2
If he keeps a distinct or independent counting-room, or
office, in which he usually transacts his business, that is
deemed his place of business. If he has no separate
counting-room or office of his own, but usually transacts
his business at a counting-room, or office, which is partly
occupied or used by another, that will, or may, be
deemed his place of business. But a place, which he
has no particular right to use for such purpose, such as
an insurance office, or a bank room, or an exchange
room, or a post-office, to which persons in general habit-
ually or occasionally resort, will not be deemed his place
of business, in the sense of the rule, although he may
occasionally or transiently transact business there. 3
i Ibid.
2 See Bank of United States v. Hatch, 6 Peters, Sup. Ct. R. 250 ;
Bank of United States v. Hatch, 1 McLean, ,R. 92.
3 See Bank of United States v. Corcoran, 2 Peters, Sup. Ct. R. 121 ;
Ireland v. Kip, 10 John. R. 501 ; S. C. 11 John. R. 231 ; Granite Bank
v. Ayres, 15 Pick. R. 392 ; Bank of Columbia v. Lawrence, 1 Peters,
Sup. Ct. R. 582. In this last case, the Court said ; " From this state-
ment of the case, it appears, that the Note was made at Georgetown, pay-
able at the Bank of Columbia, in that town. That the defendant, when
he indorsed the Note, lived in the county of Alexandria, within the Dis-
trict of Columbia, and having what is alleged to have been a place of
business in the city of Washington ; and the notice of non-payment was
put into the Georgetown post-office, addressed to the defendant at that
place, by which it is understood, that the notice was either inclosed in a
CH. VIII.] PROCEEDINGS ON NON-PAYMENT. 391
§ 314. An indorser, entitled to notice, may, by a pre-
vious arrangement or agreement, assign a different place
from that of his domicil or place of business, at which
the notice of dishonor of the Note or Notes indorsed by
him may be delivered or left, or to which it may be sent ;
and in such a case he will be regularly bound, if the
notice is duly left at, or sent to, the place so assigned. 1
Thus, if an indorser should agree with the holder of a
Note, that the notice of the dishonor might be left at a
particular bank, or insurance office, or at a particular
shop, that would make a notice, duly left there, suffi-
cient to bind him in point of law. 3
§ 315. If the notice is left at the place of business
letter, or the notice itself sealed and superscribed with the name of the
defendant, with the direction ' Georgetown ' upon it ; and whether this
notice is sufficient is the question to be decided. If it should be admitted,
that the defendant had what is usually called a place of business in the
city of Washington, and that notice served there would have been good,
it by no means follows, that service at his place of residence, in a different
place, would not be equally good. Parties may be, and frequently are, so
situated, that notice may well be given at either of several places. But
the evidence does not show, that the defendant had a place of business in
the city of Washington, according to the usual commercial understanding
of a place of business. There was no public notoriety of any description
given to it as such. No open or public business of any kind carried on,
but merely occasional employment there, two or three times a week, in a
house occupied by another person ; and the defendant only engaged in
settling up his old business. In this view of the case, the inquiry is nar-
rowed down to the single point, whether notice through the post-office at
Georgetown was good ; the defendant residing in the country, two or three
miles distant from that place, in the county of Alexandria. The general
rule is, that the party, whose duty it is to give notice in such cases, is
bound to use due diligence in communicating such notice. But it is not
required of him to see that the notice is brought home to the party. He
may employ the usual and ordinary mode of conveyance, and, whether the
notice reaches the party or not, the holder has done all that the law requires
of him."
1 See Ireland v. Kip, 11 John. R. 231.
2 Brent v. Bank of the Metropolis, 1 Peters, Sup. Ct. R. 89.
*
o
92 PROMISSORY NOTES. [CH. VIII.
of the indorser, it should be left within the usual hours
of business ; for, if left after those hours, it will not be
deemed sufficient, unless some person in the employment
of the indorser is there found ready to receive it. 1 If
left at the dwelling-house of the indorser, it should, (as
we shall presently see,) be within reasonable hours, and
before the house is shut up for the night. 2 If the house
be shut up in consequence of the temporary absence of
the indorser, still the notice may be left there, or at a
neighboring house ; for it is the duty of the party, under
such circumstances, to leave some person there ready to
receive such communications. 3 And it will be a suffi-
cient discharge of the duty of the holder, that he leaves
the notice in a way reasonably calculated to bring know-
ledge thereof to the owner, if he or his servants should
visit the house. 4 Indeed, it seems, that it is not neces-
sary in such cases to leave any written notice at all ;
for, as the notice may be verbal, if the holder or his
agent goes to the place of business within the usual
hours, and finds it shut up, or if he goes to the dwelling-
house within reasonable hours, and finds it shut up, and
no one there to receive notice, that will be a sufficient
compliance with the rule, requiring notice on the part
of the holder, and exonerate him from all implication of
laches. 5
1 Bayley on Bills, ch. 7, § 2, p. 276, (5th edit.) ; Crosse v. Smith,
1 Maule & Seise. 545 ; Bancroft v. Hall, Holt, N. P. R. 476.
2 Chitty on Bills, ch. 10, p. 502, 503, 516, (8th edit.) ; Allen v. Ed-
mundson, 2 Welsby, Hurlstone & Gordon, 719; S. C. Carrington & Kir-
wan, 547.
3 3 Kent, Comm. Lect. 44, p. 107, (5th edit.) ; Williams v. Bank of
United States, 2 Peters, Sup. Ct. R. 100 ; Stewart v. Eden, 2 Cain. R.
121.
4 Ibid. ; Wharton v. Wright, 1 Car. & Kirk. 586.
5 Bayley on Bills, ch. 7, § 2, p. 276, (5th edit.) ; Crosse v. Smith,
CH. VIII.] PROCEEDINGS ON NON-PAYMENT. 393
§ 316. Where the domicil or place of business of the
indorser is unknown, it is the duty of the indorsee to
make reasonable inquiries, and to use due diligence in
endeavoring to ascertain it. 1 Where the indorser has
1 Maule & Selw. 545 ; Bancroft v. Hall, Holt, N. P. R. 476 ; Chitty on
Bills, ch. 10, p. 488, 502, 503, (8th edit.) ; Id. p. 516 ; Williams v. Bank
of United States, 2 Peters, Sup. Ct. R. 100; Hine v. Allely, 4 Barn. &
Adolp. R. 624. In the case of Crosse v. Smith, 1 Maule & Selw. 545,
554, Lord Ellenborough, in delivering the opinion of the Court, said .; —
" That brings it to the question, whether sending the Bill by a clerk after
ten o'clock, and knocking and waiting at the counting-house door was
sufficient notice in point of law ; and we think that it was. The period
from ten to eleven was a time during which a merchant's counting-house
ought to be open, and some person expected to be met with there. The
counting-house is a place where all appointments respecting the joint busi-
ness, and all notices should be addressed and it is the duty of the mer-
chant to take care that a proper person be in attendance. It has, however,
been argued, that notice in writing left at the counting-house, or put into
the post, was necessary ; but the law does not require it, and with whom
was it to be left? Putting a letter in the post is only one mode of giving
notice, but where both parties are residing in the same post town, sending
a clerk is a more regular and less exceptionable mode. The case of Gold-
smith v. Bland, before Lord Eldon, supports this doctrine. The only notice
of the dishonor of the Bill was by a clerk of the indorsee, who went
to the counting-house of the indorser, found the counting-house shut up
and no person there ; saw a servant-girl, who said nobody was in the way,
then returned without leaving any message. Lord Eldon told the jury,
that if they thought the indorser was bound to have somebody there, the
notice was regular. The jury were satisfied, that the hour was a proper
hour, and that the defendant ought to have had a clerk there. So, by a
recent decision of this Court, in Howe v. Bowes, we have held, that if the
makers of Notes shut up and abandon their shop, it is substantially a
refusal by them to pay."
1 Chapcott v. Cuilewis, 2 Mood. & Rob. 484. On this subject, Mr.
Chitty (p. 486-488) says: " The holder of a Bill of Exchange is also
excused for not giving regular notice of its being dishonored to an indorser,
of whose place of residence he is ignorant, if he use reasonable diligence
to discover where the indorser may be found. And Lord Ellenborough
observed, ' When the holder of a Bill of Exchange does not know where
the indorser is to be found, it would be very hard if he lost his remedy by
not communicating immediate notice of the dishonor of the Bill ; and I
think the law lays down no such rigid rule. The holder must not allow
394 PROMISSORY NOTES. [CH. VIII.
removed from his old domicil or place of business, and
his present domicil or place of business is not known
there, it is the duty of the holder to make reasonable
inquiries, and to use due diligence in his endeavors to
ascertain the new domicil or place of business of the
indorser, if he means to charge him. 1 In such a case,
himself to remain in a state of passive and contented ignorance ; but if he
uses reasonable diligence to discover the residence of the indorser, I con-
ceive, that notice given as soon as this is discovered is due notice of the
dishonor of the Bill, within the usage and custom of merchants.' And in
a late case, where the traveller of A., a tradesman, received in the course
of business a Promissory Note, which he delivered to his master, and the
Note having been returned to A. dishonored, the latter, not knowing the
address of the next preceding indorser, wrote to his traveller, who was
then absent from home, to inquire respecting it ; it was held that A. was
not guilty of laches, although several days elapsed before he received an
answer, and before he gave notice to the next party, as he had used due
diligence in ascertaining his address ; and two days' delay, after ascer-
taining the residence, in forwarding notice were excused, the holder and
his attorney occupying that time. And it has been considered to be suffi-
cient, when a Promissory Note has been dishonored, to make inquiries at
the maker's for the residence of the payee. But in a subsequent case it
was held, that, to excuse the not giving regular notice of the dishonor of a
Bill to an indorser, it is not enough to show that the holder, being ignorant
of his residence, made inquiries upon the subject at the place where the Bill
was payable ; he should have inquired of every other party to the Bill,
and have applied to all persons of the same name in the directory. Ap-
plying to the last indorser, and last but one, the day after the Bill was
due, to ascertain where the drawer lives, and, on his not being in the
way, calling again the next day, and then giving the drawer notice, has
been considered sufficient ; and when a person, upon transferring a Bill
or Note, declines stating where he lives, but engages to call upon the
acceptor to ascertain whether the Bill has been paid, he thereby dispenses
with ihe necessity of giving him any notice." Again, in p. 524, he speaks
pointedly to the same effect. See, also, Spencer v. Bank of Salina, 3 Hill,
N. Y. R. 520 ; Belden v. Lamb, 17 Conn. R. 441 ; Harris v. Robinson,
4 Howard, Sup. Ct. R. 345; Lambert v. Chiselm, 9 Ibid. 552; Carroll v.
Upton, 2 Sandford, Sup. Ct. N. Y. R. 171 ; Rawdon v. Redfield, Ibid.
178.
i Chitty on Bills, ch. 10, p. 486 - 488, 524, (8th edit.) ; Barnwell v.
Mitchell, 3 Connect. R. 101 ; Bank of Utica v. De Mott, 13 John. R.432;
Smyth v. Hawthorn, 3 Rawle, R. 355 ; Hill v. Varrell, 3 Greenl. R.
CH. VIII.] PROCEEDINGS ON NON-PAYMENT. 395
it would seem to be immaterial, whether the removal be
to another place in the same state, or to another state,
or to a foreign country, if his new domicil or place of
business is known, or can by reasonable inquiries and
due diligence be ascertained ; for, under such circum-
stances, notice may be sent to him by the mail, or by
the other usual conveyances resorted to in cases of for-
eign Bills. 1 [Thus, if the indorser, at the time of pro-
233 ; 3 Wash. Cir. R. 206 ; Bank of Utica v. Phillips, 3 Wend. R. 408 ;
Fitler v. Morris, 6 Whart. R. 406 ; McLanahan v. Brandon, 13 Martin,
R. 321.
1 On this subject, Mr. Chitty (p. 524) says : " If the residence of the
party to whom the notice ought to be given be not known to the holder, he
must nevertheless not remain in a state of passive and contented ignorance,
but must use due diligence to discover his residence, and if he do, then
the indorser remains liable, though a month or more may have elapsed
before actual notice be given ; and if he, before the Bill becomes due, be
applied to by one of the parties to ascertain the residence of the indorser,
and he declined giving him any information, the holder need not, after the
Bill became due, renew his inquiries of that party ; but, in general, the
holder should not only immediately apply to all the parties to the Bill for
information, but also make inquiries, and send notice to the place where it
may reasonably be supposed the party resides, and if he has employed an
attorney, who at length discovers the residence, we have seen, that it will
suffice if the attorney, on the next day, consults with his client, and the
latter, on the third day, forwards the notice to the discovered indorser,
though, in general, notice ought to be given on the next day. And a
letter from the holder, giving notice of the dishonor, containing this pas-
sage, ' I do not know where, till within these few days, you were to be
found,' is not to be taken as proving, that the notice was not given on the
next day after the residence of the party was discovered. Where the
traveller of a tradesman received, in the course of business, a Promissory
Note, which was delivered to him for the use of his principal, without
indorsing it, and the Note having been returned to the principal dishonored,
and the latter, not knowing the address of the next preceding indorseer,
wrote to his traveller, who was then absent from home, to inquire respect-
ing it, it was held, that such principal was not guilty of laches, although
it was urged that the traveller ought to have stated the residence when he
remitted the Notes, and though several days elapsed before he received an
answer, and thereupon he gave notice to the next party, as he had used due
diligence in ascertaining the address."
396 PROMISSORY NOTES. [CH. VIII.
test, be in Washington, as a member of the United
States Senate, then in session, and in the daily habit of
receiving his letters through the post-office at Washing-
ton, while at his last place of abode, in his own State,
he has left no agent to receive or forward letters, then
notice sent by mail to Washington, would be sufficient. 1 ]
But, if, upon such inquiries and diligence, the new do-
micil or the place of business of the indorser cannot be
found, or if he has removed into another state, or into
a foreign country, and his new residence is not known,
and cannot upon reasonable inquires be found, or if he
has gone temporarily abroad, leaving no known place of
business or domicil here, or no known agent authorized
to receive notice, that will dispense with the necessity
of giving notice by the holder. 2 Where the domicil or
i Walker v. Tunstall, 3 Howard, Mississippi R. 259 ; Tunstall r. Walker,
2 Smedes & Marshall, R. 638.
2 Story on Bills, § 297, 299 ; Chitty on Bills, ch. 10, p. 516, 524, 525,
(8th edit.) ; Bayley on Bills, ch. 7, p. 274, 275, 280-233, (5th edit.) ;
3 Kent, Comm. Lect. 44, p. 107, 108, (5th edit.) ; Id. p. 109 ; McMurtrie
v. Jones, 3 Wash. Cir. R. 206 ; Fisher v. Evans, 5 Binn. R. 541 ; Chap-
man v. Lipscombe, 1 John. R. 294 ; Browning v. Kinnear, Gow. R. 81 ;
Firth v. Thrush, 8 Barn. & Cressw. 387 ; Clarke v. Sharpe, 3 Mees. &
Wels. 166; Barnwell v. Mitchell, 3 Connect. R. 101 ; Safford^. Wyckoff,
1 Hill, N. Y. R. 11 ; Howard v. Ives, 1 Hill, N. Y. R. 263 ; Ransom v.
Mack, 2 Hill, N. Y. R. 587 ; Blakely v. Grant, 6 Mass. R. 386 ; Bate-
man v. Joseph, 12 East, R. 433 ; Preston v. Dawson, 7 Miller, Louis. R.
7 ; Bank of Utica v. Davidson, 5 Wend. R. 587 ; Williams v. Bank of
United States, 2 Peters, Sup. Ct. R. 160 ; McLain v. Waters, 9 Dana,
R. 55, 56. Mr. Bayley (on Bills, ch. 7, § 2, p. 281-283) says :
" Where it is not known where a party lives, due diligence must in ge-
neral be used to find out. And where such diligence is unsuccessful, it
will excuse want of notice. But merely inquiring at the house, where a
Bill is payable, is not due diligence for finding out an indorser. Inquiry
should be made of some of the other parties to the Bill or Note, and of
persons of the same name. Calling on the last indorser, and last but one,
the day after the Bill becomes due, to know where the drawer lives, and,
on his not being in the way, calling again the next day, and then giving
CH. VIII.] PROCEEDINGS ON NON-PAYMENT. 397
place of business of the inclorser cannot, upon such in-
quiries and diligence, be found, the reason is obvious,
why notice should be dispensed with ; for here the max-
im forcibly applies, Lex neminem cogit ad vana sen inidilia
peragendd} Where the party has gone abroad, or re-
moved to another state or country, and his new residence
is unknown, and he has left no agent here, and no means
of ascertaining his new residence, the law deems it un-
reasonable to compel the holder to follow the indorser
to another state or country, or to search for him there,
in order to give him notice, since he has thus voluntarily
placed himself out of the reach of personal notice, and
has left behind him no reasonable means of ascertaining
his residence, and no agent charged with authority to
receive it here. 2 A fortiori, the holder is not bound to
make search, or to institute inquiries all round the world,
for an absentee, who has absconded or abandoned his
home, leaving no traces behind him to mark out his
future contemplated residence. 3
the drawer notice, may be sufficient. But if a party, when he passes a
Bill or Note, decline saying where he lives, and undertake to call upon the
acceptor to see if the Bill is paid, he cannot complain of want of notice.
Where the residence of a party entitled to notice is unknown, and the
person next to him upon the Bill or Note will give no information where he
lives, a Note addressed to the former, if sent to the place where such latter
person lives will be sufficient, though the application for information be made
before the Bill or Note is due ; especially, if the person applied to has acted
in any respect, with regard to the Bill or Note, as agent for the party en-
titled to notice. And, if the holder employ an attorney to give notice, and
the attorney after a lapse of time discover where the party lives, he may
take a day to apprize the holder, and take his further directions, before he
gives the notice." See also, Blakely v. Grant, 6 Mass. R. 386.
i 5 Co. R. 21 ; Wing. Max. 600 ; Branch's Max. 98.
2 See McGruder v. Bank of Washington, 9 Wheat. R. 598 ; Story on
Bills, § 289, 297-299; Chitty on Bills, ch. 16, p. 505, 506, (Sth edit.) ;
Blakely v. Grant, 6 Mass. R. 386 ; McMurtrie v. Jones, 3 Wash. Cir. R.
206.
3 Chitty on Bills, ch. 7, p. 307, ch 8, p. 360, ch. 10, p. 485, (8th edit.) ;
PROM. NOTES. 34
398 PROMISSORY NOTES. [CH. VIII.
§ 317. But if the party lias gone abroad, and has left
his family, at his residence at home, notice should be
left at his residence, if it is known, or can by reasonable
inquiries be found out. 1 If, under the like circumstances
he has an agent here authorized to receive the notice,
who is known, or can by reasonable inquiries be found
out, notice should be left with such agent. 2 If the party
has removed abroad, and his new domicil is known, or
can by reasonable diligence be ascertained, notice should
be sent to him by the due and regular conveyance. 3
Walwyn v. St. Quintin, 1 Bos. & Pull. 652 ; S. C. 2 Esp. R. 516 ; Wil-
liams v. Bank of United States, 2 Peters, Sup. Ct. R. 100.
1 Chitty on Bills, ch. 10, p. 505, 506, (8th edit.) ; Cromwell v. Hynson 5
2 Esp. R. 511. See Wharton v. Wright, 1 Car. & Kirk. 585.
2 Ibid.
3 Ante, §316; Hodges v. Gait, 8 Pick. R. 251. See Rothschild v.
Barnes, 2 (English) Jurist, 1084. We have already seen, that if the ma-
ker of a Note removes to another state, or to a foreign country, no pre-
sentment or demand is required to be made there upon him ; but it is by
law dispensed with. Ante, §236; McGruder v. Bank of Washington,
9 Wheat. R. 598 ; Story on Bills, § 352, and note. The reason for this
rule does not apply to the giving of notice, since that need not be personal,
but may be by the mail, or other proper and usual conveyance. In Mc-
Murtrie v. Jones, 3 Wash. Cir. R. 206, 208, Mr. Justice Washington
said : " As to the question of notice, there is more difficulty. At the time
the assignment was made to the plaintiff, the defendant resided in Phila-
delphia, as a boarder, at Mrs. Hand's. A few weeks before the Note
became due, the defendant left Mrs. Hand's and went to New York, with
an intention to embark for England, which he carried into execution. This
was known to Longstreth, but it does not appear that it was known to Mrs.
Hand, to the plaintiff, or his agent, Mr. Craig, or to any one else ; and it
is worthy of remark, that it is proved, that before this final removal, he
was frequently absent from this city upon visits to the Eastern States.
Generally speaking, notice to the indorser ought to be given, although he
should be beyond sea, if the place of his residence is known ; and a
reasonable diligence to find out his place of residence ought to be used, of
which you are the proper judges. But, under all the circumstances of this
case, it appears to the Court, that the notice left at the known place of re-
sidence of the defendant, before his final departure, was sufficient. The
Court give no opinion respecting the custom which has been mentioned,
CH. viil] proceedings on non-payment. 399
§ 318. The French Law seems to have adopted a
similar doctrine as to notice, with the like exception,
where the residence of the indorser is unknown. If
due notice be not given, the indorser will be discharged
from his liability, if his residence be known, with this
qualification, that the holder is not prevented by irresist-
ible force or casualty from giving it in due season. But
as we have already seen, the indorser will, by the French
Law, be discharged only to the extent of the damage,
which he has received from the want of notice. 1 But if
the residence of the indorser is unknown, and cannot be
ascertained by reasonable inquiry, that will entirely
supersede the necessity of any notice to him. 2
§ 319. In the next place, within what time notice is
to be given, in order to charge the indorser ? And this
inay be resolved into the general principle, that notice
must in all cases, where it is proper and necessary, be
given within a reasonable time. 3 But then, this leaves the
inquiry open, what is a reasonable time, or, in other words,
how is it to be measured and ascertained ? To such an
inquiry, the only answer, which can be given, is, that it
must depend upon the circumstances. 4 In some par-
ticular classes of cases, a rule has been established, arti-
ficial it may be, but still established for the purpose of
general notoriety and convenience. In other cases, not
and respecting which some evidence has been given, as it does not appear
to be sufficiently proved." See Story on Bills, § 297-299.
i Ante, § 285.
2 Pardessus, Tom. 2 art. 434.
3 Story on Bills, § 285, 382 ; Id. $ 284, 286 ; 3 Kent, Coram. Lect. 44,
p. 104-106, (5th edit.) ; Darbishire v. Parker, 6 East, R. 1, 9 ; Scott v.
Lifford, 9 East, R. 347 ; 3 Kent, Coram. Lect. 44, p. 105, 106, (5th edit.)
4 See Darbishire v. Parker, 6 East, R. 1, 9 ; Bancroft v. Hall, Holt, N.
P. R. 476 ; Scott v. Lifford, 9 East, R. 347 ; Bank of United States v.
Carneal, 2 Peters, Sup. Ct. R. 543.
400 PROMISSORY NOTES. [CH. VIII.
falling within these classes, it is difficult to lay down
any general rule, and every case must be decided upon
its own circumstances. The principal classes of cases,
in which a fixed rule is established, are (1.) First, Where
the holder and the inclorsers, entitled to notice, reside
in the same town or city; (2.) Secondly, Where they
reside in different towns or cities.
§ 320. Let us, then, in the first place, consider the
rule, where both parties, the holder and the indorser,
reside in the same town or city. In such a case, it is
the duty of the holder to give notice to the indorser, at
farthest, on the next day after the dishonor, at the ma-
turity of the Note, takes place, early enough to enable
the indorser to receive it on the same day, either per-
sonally or at his domicil or at his place of business. 1
1 Bayley on Bills, ch. 7, § 2, p. 268, (5th edit.) ; Darbishire v. Parker,
6 East, R. 3, 9 ; Story on Bills, § 288-290, 382 ; Chitty on Bills, ch. 10,
p. 513, 514, 518, (8th edit.) ; Ransom v. Mack, 2 Hill, N. Y. R. 587 ;
Geill v. Jeremy, cited in Chitty on Bills, ch. 10, p. 518, (8th edit.) in note ;
S. C. Mood. & Malk. R. 61 ; Ireland v. Kip, 10 John. R. 490 ; S. C.
11 John. R. 231 ; Cayuga County Bank v. Bennett, 5 Hill, N. Y. R.
236. Mr. Chitty lays down the rule, that if both parties reside in or near
the same town or city, notice is to be given in the manner stated in the
text. His language is : " In all these cases, it suffices to cause notice to
be received on the next day, by the preceding indorser, when resident in
or near the same place ; and where the parties do not reside in or near
the place of the dishonor, it suffices to forward notice by the general post
that goes out on the day after the refusal, or if there be no post on that
day, then on the third day, though thereby the drawer or indorser may not,
in fact, receive notice till the third day, or sometimes, according to the
course of the post, not until the fourth or even subsequent day. The
reason why it has been decided, that it shall in no case be necessary to give
notice on the day of the dishonor, or on the same day when an indorser re-
ceives notice, although the indorser may even live in the same street as the
holder, and although the post may go out on the same day, and not on the
next, is to prevent nice and difficult inquiries, whether or not, in this or that
particular case, the holder could conveniently have given notice on the same
day, or whether the pressure of other business did not prevent him from so
CH. VIII,] PROCEEDINGS ON NON-PAYMENT. 401
Notice will, indeed, be good, if given on the same day
of the dishonor, if it be after, but not if it be before,
doing-, the affirmative or negative of which might be in the knowledge only
of the holder himself, or might become a very critical inquiry, and be very
difficult and uncertain in legal proof. Another reason is, that the holder
ought not to be required, omissis omnibus aliis negotiis, to occupy himself,
immediately in forwarding notice to the prior parties, when, by delaying
that step till the next morning, he would, after the press of other business
had subsided, have, in the evening, or early the next morning, before his
general business commences, time to look into his accounts with the other
parties, and to consider his best steps to obtain payment from them, and to
ascertain their precise residences, and to prepare and forward, either by
hand or by such next day's post, a proper notice to all the parties against
whom he means to proceed to enforce payment." Chitty on Bills, ch. 10,
p. 513, 514, (8th edit.) ; Id. 515, 516. Probably by " in or near the
same place," he had in his mind cases, where the residence was near to
the town or city, and where no post or mail went, or post-office was kept,
in the ordinary course of things, and not cases of residence in towns con-
tiguous to each other, where there was a regular post-office in each. See
Laporte v. Landry, 17 Martin, R. 359 ; Lanusse v. Masaicott, 3 Martin,
R. 261 ; Carson v. Bank of Alabama, 4 Alab. R. 148 ; Ransom v. Mack,
2 Hill, N. Y. R. 587, 591 . In this last case, Mr. Justice Bronson, in deli-
vering the opinion of the Court, said : " The rule formerly was, that
notice of the dishonor of a Bill or Note must be served personally on the
drawer or indorser, or be left at his dwelling-house or place of business ;
and that rule still prevails in this country when the party to be charged re-
sides in the same place where the presentment or demand is made. Ire-
land v. Kip, 10 John. R. 490 ; S. C. 11 John. R. 231 ; Smedes v. Utica
Bank, 20 John. R. 372 ; Louisiana State Bank v. Rowel, 18 Martin,
Louis. R. 506 ; Laporte v. Landry, 17 Martin, Louis. R. 359 ; Clay v.
Oakley, Id. 137 ; Shepard v. Hall, 1 Connect. R. 329. See, also, Hart-
ford Bank v. Stedman, 3 Connect. R. 489 ; Bank of Columbia v. Law-
rence, 1 Peters, Sup. Ct. R. 578. But where the drawer or indorser
resides in a different place from that in which the presentment or demand
is made, the old rule, which required personal service, has been relaxed,
and it is now well settled, that notice may be sent by mail. The only diffi-
culty arises from the fact, that the defendant resided in the same town,
though at the distance of seven miles from the bank, where the Note was
made payable. In Ireland v. Kip, the indorser resided at Kip's Bay, within
the corporate limits of the city of New York, where the demand was
made, but at the distance of three and a half miles from the New York
post-office, where he received his letters. There was no post-office at
Kip's Bay, and notice left at the city post-office was held not to be
sufficient. The service should have been personal, or by leaving the
34 *
402 PROMISSORY NOTES. [CH. VIIL
the presentment and dishonor. 1 But it is not indispen-
sable, that it should be given on the same day. It will
be sufficient, in all cases, if given on the next day ; 2 for
notice at the indorser's dwelling-house or place of business. The rule laid
down in that case has never been, and should not be applied, without some
qualification, to our large country towns, which often have more than one
post-office, or where, if they have but one, a portion of the inhabitants live
so far from it, that they usually receive their letters and papers through a
neighboring office in another town. Notice may, I think, always be sent
through the post-office, wherever there is a regular communication by mail
between the place of presentment or demand and the office where the
person to be charged usually receives his letters and papers. In Ireland v.
Kip, the notice was not left in the New York office to be transmitted by
post to another office, but to remain there until called for ; and such was
also the case in all the other instances where that mode of service has been
held to be insufficient. In Laporte v. Landry, it was said by Martin, J.,
that the post-office was not a legal place of deposit for notices ; but that
service in that mode was sufficient, ' where notice may be conveyed by
mail.' And in Louisiana State Bank v. Rowel, the rule was laid down by
Porter, J., that mail service is good, ' when the indorsers live at such a
distance that their residence is nearer another post-office than that where
the holder lives.' The corporate limits of our cities and towns have, I
think, less to do with this question than the mail arrangements of the gen-
eral government, and the business relations of our citizens. Whether mail
service is good or not does not depend upon the inquiry, whether the per-
son to be charged resides within the same legal district ; but upon the
question, whether the notice may be transmitted by mail from the place of
presentment or demand to another post-office, where the drawer or in-
dorser usually receives his letters and papers. In this case, although the
defendant lived in the same town where the demand was made, and there
was but one post-office in that town ; yet, as he lived remote from the
Sacket's Harbor office, and there was another office in his vicinity to which
he usually resorted for letters and papers, there can, I think, be no doubt
that notice might have been well served by mail."
i Bayley on Bills, ch. 7, § 2, p. 267, 268, (5th edit.) ; Chitty on Bills,
ch. 8, p. 367, (8th edit.) ; Id. ch. 9, p. 432 ; Id. ch. 10, p. 513 ; Story on
Bills, § 290, 382 ; Burnbridge v. Manners, 3 Camp. R. 193 ; Ex parte
Moline, 19 Ves. 216 ; Clowes v. Chaldecott, 7 Law Journ. 147, cited in
Chitty on Bills, p. 800, (8th edit.) ; Shed v. Brett, 1 Pick. R. 401 ; Bus-
sard v. Levering, 6 Wheat. R. 102 ; Lindenberger t'. Beall, 6 Wheat.
R. 104.
2 Bayley on Bills, ch. 7, § 2, p. 268, 271, (5th edit.) ; Smith v. Mullet,"
2 Camp. R. 208 ; Darbishire v. Parker, 6 East, R. 1, 9 ; Scott v. Lifford,
CH. VIII.] PROCEEDINGS ON NON-FAYMENT. 403
i
the holder is not bound to any diligence more strict,
since that would be to require him to devote himself
exclusively to the giving notices of the dishonor, omis-
sis omnibus aliis negotiis}
§ 321. When it is said, that the notice must, at far-
thest, be on the next day, this must be understood, not
in its literal meaning, but as referring to the next busi-
ness or secular day; for, if by the laws or usages of the
country, the day be devoted to religious services, or
public amusements and recreations, or be kept as a fes-
tival, or other holyday, it will be sufficient to give the
notice on the succeeding day; 2 for such days are treated
altogether as days, in which no person is bound to at-
tend to any secular business; but is at liberty to devote
himself exclusively to the religious services and observ-
ances, or the public festivities of the particular occasion. 3
9 East, R. 347 ; Langdale v. Trimmer, 15 East, R. 293 ; Grand Bank v.
Blanchard, 23 Pick. R. 305 ; Lindo v. Unsworth, 2 Camp. R. 602 ; Whit-
tlesey v. Dean, 2 Aiken, 263 ; Chick v. Pilsbury, 24 Maine, R. 458. But
see Robbins v. Pinckard, 5 Smedes & Marshall, R. 51.
i Ibid.
2 Howard v. Ives, 1 Hill, N. Y. R. 263 ; Haynes v. Birks, 3 Bos. &
Pull. 599, 601 ; Wright v. Shawcross, 2 Barn. & Aid. 501, note; Bray
v. Had wen, 5 Maule & Selw. 68.
3 Martin v. Ingersoll, 8 Pick. R. 1 ; Bayley on Bills, ch. 7, § 2, p. 271,
(5th edit.) ; Thomson on Bills, ch. 6, § 4, p. 489, 490, (2d edit.) ; Chitty
on Bills, ch. 10, p. 519, 520, (8th edit.) ; Eagle Bank v. Chapin, 3 Pick.
R. 180, 183, and note of Mr. Perkins, Ibid. ; Story on Bills, § 288, 289,
293 ; Lindo v. Unsworth, 2 Camp. R. 602. Mr. Chitty (on Bills, ch. 10,
p. 520, 8th edit.) says : "And at common law, and independently of that
statute, if a notice be received on a Good Friday or Christmas day, it is
not to be considered as received until the next day, and notice need not be
forwarded by the party, who actually received it on one of those days,
until the third day afterwards. And in the spirit of toleration, it has been
held, that a Jew is not obliged to forward notice on the day of a great
Jewish festival, during which it is unlawful for any persons of that per-
suasion to attend to any sort of business." Mr. Bayley (ch. 7, § 2, p. 271,
5th edit.) gives the result of the authorities in his usual succinct manner.
He says : " Where a party receives notice on a Sunday, he is in the same
404 PROMISSORY NOTES. [CH. VIII.
Thus, if the clay, on which notice of the dishonor of the
Note should ordinarily be given, should happen to fall
on Sunday, or Christmas day, or Good Friday, or on any
other day set apart by public authority, or usage, for a
solemn fast, or thanksgiving, or it is otherwise conse-
crated to purposes not secular, or it is a known public
holyday, (such as in America is the fourth of July,) in
every such case, it will be sufficient to give the notice
on the next succeeding clay after Sunday, Christmas, or
such other holyday. Indeed, the law has such a tender
regard for the consciences of men, that, if, according to
the religion of the holder, or other person, bound to give
the notice, or the usages of his religious sect the day on
which he is bound to give notice, falls on a day conse-
crated to religious purposes, such as Saturday among
the Jews, in every such case it will be sufficient to give
the notice on the next succeeding secular day. Hence,
if the dishonor should take place on Friday, it will be
sufficient, in the case of a Jew, that he gives the notice
on the following Monday. 1
situation as if it did not reach him till the Monday ; he is not bound to pay-
it any attention till the Monday ; and has the whole of Monday for the
purpose. So, if the day on which notice ought thus to be given be a day
of public rest, as Christmas day or Good Friday, or any day appointed by
proclamation for a solemn fast or thanksgiving, the notice need not be given
until the following day. And it has been held, that where a man is of a
religion which gives to any other day of the week, the sanctity of Sunday,
as in the case of Jews, he is entitled to the same indulgence as to that
day. Where Christmas day, or such day of fast or thanksgiving shall be
on a Monday, notice of the dishonor of Bills or Notes, due or payable the
Saturday preceding, need not be given until the Tuesday." He imme-
diately adds, referring to the provisions of the Statute of 7 and 8 Geo. 4,
ch. 15, § 1-4 ; " And Good Friday, Christmas day, and any day of fast
or thanksgiving shall, from 10th April, 1827, as far as regards Bills and
Notes, be treated and considered as Sunday. But these provisions do not
apply to Scotland." See, also, Deblieux v. Bullard, 1 Rob. Louis. R. 66.
1 Ibid. ; Lindo v. Unsworth, 2 Camp. R. 602.
CH. VIII.] PROCEEDINGS ON NON-PAYMENT. 405
§ 322. Where both parties reside in the same town
or city, it is not competent for the holder to pnt a letter
containing the notice of the dishonor, into the post-office
of the same town or city, directed to the indorser, and
to insist upon the same as a sufficient notice ; for the
law requires, that the notice should be either personal,
or at the domicil, or at the place of business of the in-
dorser, so that it may reach him on the very day, on
which he is entitled to notice. 1 If, indeed, being so put
into the post-office, it nevertheless does in fact reach
the indorser on the same day, it will, under such cir-
cumstances, be a sufficient notice. 2 But the fact must
be brought home directly to the indorser ; for it will
not be presumed from the mere fact that he is accus-
tomed to send to the post-office several times during the
day. 3
§ 323. There is an apparent exception to the general
rule, which, however, is not in reality such, but falls
within the general rule. It is this, that, where there is,
1 See Crosse v. Smith, 1 Maule & Selw. 545, 554 ; Williams v. Bank
of U. States, 2 Peters, Sup. Ct. R. 100 ; Irehnd v. Kip, 10 John. R. 490;
S. C. 11 John R. 231 ; Smedes v. Utica Bank, 20 John. R. 372 ; Shep-
ard v. Hall, 1 Connect. R. 329 ; Laporte v. Landry, 17 Martin R. 359 ;
McCrummen v. McCrummen, 17 Martin, R. 158 ; Pritchard v. Scott, 19
Martin, R. 492 ; Clay v. Oakley, 17 Martin, R. 137; Louisiana State
Bank v. Rowel, 18 Martin, R. 506 ; Miranda v. City Bank, 6 Miller,
Louis. R. 744 ; Porter v. Boyle, 8 Miller, Louis. R. 170; Bank of Colum-
bia v. Lawrence, 1 Peters, Sup. Ct. R. 578, 583 ; Story on Bills, fy 284-
286, 289, 290, 282 ; 3 Kent, Coram. Lect. 44, p. 105- 107, (5th edit.) ;
Ransom v. Mack, 2 Hill, N. Y. R. 587 ; Sheldon v. Benham, 4 Hill, N.
Y. R. 129; Cayuga County Bank v. Bennett, 5 Hill, N. Y. R. 236;
Glenn v. Thistle, 1 Rob. Louis. R. 572 ; Manadue v. Kitchen, 3 Rob.
Louis. R. 261 ; Seneca Co. Bank v. Neass, 5 Denio, R. 330 ; Kramer i'.
M'Dowall, 8 Watts & Sergeant, R. 138 ; Saul v. Brand, 1 Robinson,
Louis. R. 95 ; Hoggatt v. Bingaman, 7 Howard, Mississippi R. 565.
2 Ibid.
3 Ibid. ; Bank of U. States v. Corcoran, 2 Peters, Sup. Ct. R. 121.
406 PROMISSORY NOTES. [CH. VIII.
as in large towns and cities, a letter-carrier, or, as he is
often called, a penny post, who carries letters daily
from the post-office, and delivers them at the houses or
places of business of the parties, who are accustomed to
receive their letters by him, there, if the notice be left
at the post-office early enough in the day to go by such
letter carrier, or penny post, on the same day to the
party entitled to notice, it will be deemed sufficient ;
for, in such cases, the letter-carrier or penny post is
treated as an agent for the purpose, because it is a
usual mode of conveyance. 1
1 Chitty on Bills, ch. 10, p. 504, 508, 513, (8th edit.) ; Id. p. 515, 516,
518 ; Story on Bills, § 289, 291, 382 ; Scott v. Lifford, 1 Camp. R. 246 ;
S. C. 9 East, R. 347; Smith v. Mullet, 2 Camp. R. 208; Hilton v.
Fairclough, 2 Camp. R. 633 ; Dobree v. Eastwood, 3 Carr. & Payne,
250 ; Edmonds v. Cates, 1 (English) Jurist, 183 ; Bank of Columbia v.
Lawrence, 1 Peters, Sup. Ct. R. 578, 583, 584 ; Ireland v. Kip, 10 John.
R. 490 ; S. C. 11 John. R. 231 ; 3 Kent, Coram. Lect. 44, p. 105 - 107,
(5th edit.) ; Thomson on Bills, ch. 6, § 4, p. 476, 477, (2d edit.) —Mr.
Chitty (p. 504) says : " Notice of the dishonor of a Bill sent by the two-
penny post is sufficient, where the parties live within its limits, whether
near or at a distance from each other, but it must be proved, that the letter,
conveying the notice, was»put into the receiving-house on the next day at
such an hour, that, according to the course of the post, it would be deli-
vered to the party to whom it is addressed on the day when he was entitled
to receive notice of the dishonor." And again, in p. 515, and 516, he says :
" But there is a very material distinction in the time of giving or forward-
ing notice in cases where the parties reside in or near the same town,
and when notice may be readily given on the day after the dishonor or
notice of it, either verbally or by special messenger, or by local post, and
cases where the parties reside at a distance, and when the ordinary mode
of communication is by general post. Thus, when the parties reside in the
same town, the holder, or other person to give the notice, must, on the
day after the dishonor, or on the day after he received the notice, cause
notice to be actually forwarded, by the post or otherwise, to his next im-
mediate indorser, sufficiently early in the day, that the latter may actually
receive the same before the expiration of the day ; and, therefore, in Lon-
don, if a letter, containing such notice, be put into the post-office after five
o'clock in the afternoon of the second day, and in consequence, it is not
received till the morning of the third day, the party who ought to have
CH. VIII.] PROCEEDINGS ON NON-PAYMENT. 407
§ 324. In the next place, where the holder and the
indorser, entitled to notice, reside in different towns and
cities. In such cases, the notice may be by the post,
or by a special messenger, or by a private hand, or by
any other suitable and ordinary conveyance. 1 The usual
actually received the notice on. the second day will be discharged. In
London, the local post (usually termed the two-penny post) forwarded
letters to be delivered in the metropolis three times within the same day,
namely, at eight, two, and five o'clock ; and letters put into any receiving-
house, before either of those hours, ought regularly to be delivered on the
same day ; but when out of the metropolis, and within ten miles, there
are only two deliveries in each day to and from the metropolis, and a letter
put into any proper office in London, before five o'clock in the afternoon,
will be delivered on the same day, at any place within such distance of
ten miles ; and a letter put into a country office within that distance, before
four o'clock, ought properly to be delivered in London on the same day.
The holder, or party forwarding the notice, may give it verbally, or he
may put a letter in the two-penny post, directed even to an indorser who
resides in the same street. If he send notice by a private hand, it must
be given or left at the indorser's residence before the expiration of the day ;
if to a banker, during the hours of business; but to another person the
hour is not material. If, by any irregularity in the post-office, a letter put
in in due time be not delivered till the third day, it should seem, that such
laches will not prejudice." In Bank of Columbia v. Lawrence, 1 Peters,
Sup. Ct. R. 578, 583, Mr. Justice Thompson, in delivering the opinion of
the Court, said : "It seems at this day to be well settled that, when the
facts are ascertained and undisputed, what shall constitute due diligence is
a question of law. This is certainly best calculated to have fixed by uni-
form rules on the subject, and is highly important for the safety of holders
of commercial paper. And these rules ought to be reasonable and founded
in general convenience, and with a view to clog as little as possible, con-
sistently with the safety of parties, the circulation of paper of this descrip-
tion ; and the rules which have been settled on this subject have had
in view these objects. Thus, when a party entitled to notice has in the
same city or town a dwelling-house and counting-house, or place of busi-
ness, within the compact part of such city or town, a notice delivered at
either place is sufficient, and if his dwelling or place of business be within
the district of a letter carrier, a letter, containing such notice addressed to
the party and left at the post-office, would also be sufficient. All these are
usual and ordinary modes of communication, and such as afford reasonable
ground for presuming, that the notice will be brought home to the party
without unreasonable delay."
i Chitty on Bills, ch. 10, p. 518, (8th edit.) ; Bayley on Bills, ch. 7, § 2 ;
408 PROMISSORY NOTES. [CH. VIII.
mode, where the parties reside in different towns or
cities, (which will presently come more fully under our
consideration,) is, to send the notice by the post, where
both the parties reside in places within the same state
or country, between which the ordinary communication
is by the post. 1 Wherever the post is thus resorted to,
the general rule, which seems at first to have been
adopted, was to require, that notice should be sent by
the next post after the holder, or other party, who was
bound to give notice, had himself received knowledge
of the dishonor; at least, this was the rule applied,
whenever a reasonable time remained to prepare and
send the notice, between the arrival of the knowledge
of the dishonor, and the going out of the post after-
wards on the same clay ; that is to say, it was required
to be sent, if not by the next possible post, at least by
the next practicable post. 2 But this rule was soon
Crosse v. Smith, 1 Maule & Selw. 545, 554 : Bancroft v. Hall, Holt, N.
P. R. 476; Bank of Columbia v. Lawrence, 1 Peters, Sup. Ct. R. 582 ;
Senaca Co. Bank v. Mass. 5 Denio, R. 330 ; Post, § 338.
1 Chitty on Bills, ch. 10, p. 503, (8th edit.) ; Bussard v. Levering, 6
Wheat. R. 102 ; Munn v. Baldwin, 6 Mass. R. 316.
2 Bayley on Bills, ch. 7, § 2, p. 268, (8th edit.) ; Malynes, B. 3, ch. 6,
§ 1 ; Marius on Bills, p. 24, (2d edit.) ; Id. p. 16, (edit. 1794,) ; Tindal v.
Brown, 1 Term R. 167 ; Darbishire v. Parker, 9 East, R. 3 - 8. — In this
last case, Lord Ellenborough said : " It comes to the point, whether I was
right in telling the jury, that the plaintiffs had till the next day, after they
received the notice of the Bill's being dishonored, to communicate that
notice to the drawer ; for it struck me, that if they were in time to give
notice on the 13th at Liverpool, they had the whole of that day, and having
sent a letter of advice by a private hand to the drawer, in time for him to
have written by the post of that night to London, they might be considered
to have used due diligence. There appears to me considerable difficulty
in laying down any certain time within which notice must at all events be
given. The general direction, indeed, of Marius and other writers, is to send
notice of the dishonor of a Bill by the next post where the parties do
not live in the same place ;'and the same was said in Tindal v. Brown ;
and yet, in that case, it was considered sufficient if notice were given the
CH. VIII.] PROCEEDINGS ON NON-PAYMENT. 409
found to be too narrow and limited for public conven-
ience ; and it was gradually enlarged. The established
doctrine now is, that it is in no case necessary to send
the notice by the post of the same day of the dishonor,
or of the knowledge of the dishonor; but the holder
and other party is entitled to the whole of that day to
prepare his notice, and it is sufficient, that the notice
be put into the office early enough to go by the post of
the succeeding day. 1 This rule equally applies, where
next day, where the parties all lived in the same town. If notice must at
any rate be communicated by the next post after it is received, it must often
happen, that the party will not have a day, or any thing like a day, to give
it in ; for the post may go out immediately or very soon after the letter of
advice arrives. There must, therefore, be some reasonable time allowed,
and that, too, accommodating itself to other business and affairs of life;
otherwise it is saying, that a man who has Bill transactions passing through
his hands must be nailed to the post-office, and can attend to no other
business, however urgent, until this is despatched. But if there be a rea-
sonable time between the coming in and going out of the post on the same
day, as in this case four or five hours may be contended to be, allowing for
reasonable diligence in other concerns as well as in this, it would be a ma-
terial question, if neatly raised, whether the party were bound to commu-
nicate by the next post the intelligence he had received by the post on the
same day. I think, however, there is sufficient doubt in this case, whether
reasonable diligence were used, to make it proper to send the case to be
considered by another jury ; for here the plaintiffs not only did not write
by the next post of the same day, which went out after an interval of four
or five hours, but they did not even write by the post of the next day, but
relied on a private hand to carry the letter of advice, by which it was not
in fact delivered until after the post hour of delivery in Liverpool." Story
on Bills, § 288 — 290, 382, 383 ; Chitty on Bills, ch. 10, p. 510, (8th edit.) ;
Id. p. 514, 515. See, also, Whitwell v. Johnson, 17 Mass. R. 449 ; Geill
v. Jeremy, cited in Chitty on Bills., ch. 10, p. 518, note ; 1 Mood. & Malk.
CI ; Lenox v. Roberts, 2 Wheat. R. 373; Whittlesey v. Dean, 2 Aiken,
R. 263 ; Chick v. Pillsbury, 24 Maine R. 458 ; But see Robbins v. Pinck-
ard, 5 Smedes v. Marshall, R. 51.
iDarbishire v. Parker, 6 East, R. 3, 8 ; Bayley on Bills, ch. 7, § 2, p.
268-270, (5th edit.) ; Chitty on Bills, ch. 10, p. 510, 519, 520, (8th
edit.) ; Scott v. Lifford, 9 East, R. 347 ; Langdale v. Trimmer, 15 East,
R. 231,' 293 ; Bray v. Hadwen, 5 Maule & Selw. 68 ; Wright v. Shaw-
cross, 2 -Barn. & Aid. 501, note; Hawkes v. Salter, 4 Bing. R. 715;
PROM. NOTES. 35
•f
410 PROMISSORY NOTES. [CH. VIIL
there are two posts, which go out on the same day ;
for, in such a case, it is sufficient, if the notice is put
Smith v. Mullett, 2 Camp. R. 208; Poole v. Dicas, 1 Scott, R. 600;
Geill v. Jeremy, 1 Mood. &. Malk. 61 ; Whitewell v. Johnson, 17 Mass.
R. 449, 454 ; Seaver v. Lincoln, 21 Pick. R. 267 ; Eagle Bank v. Chapin,
3 Pick. R. 180, 183 ; United States v. Barker's Adm'x, 4 Wash. Cir. R.
464 ; S. C. 12 Wheat. R. 559 ; Story on Bills, § 288, 289, 382, 383. —
The progress of opinion may be traced in the latter authorities wiUji great
accuracy. In Bray v. Hadwen, (5Maule & Selw. 68) Lord Ellenborough
said : " It has been laid down, I believe since, the case of Darbishire v.
Parker, as a rule of practice, that each party, into whose hands a dishon-
ored Bill may pass, should be allowed one entire day for the pnrpose of
giving notice ; a different rule would subject every party to the incon-
venience of giving an account of all his other engagements, in order to
prove, that he could not reasonably be expected to send notice by the same
day's post which brought it. This rule is, I believe, in conformity with
what Marius states upon the subject of notice, and it has been uniformly
acted upon at Guildhall, by this Court, for some time. It has, moreover,
this advantage, that it excludes all discussions as to the particular occupa-
tions of the party on the day. As to the objection, that notice was not
given by the holders immediately to the defendant, it was given by one,
who was an indorser, and not by a stranger, which is enough to satisfy the
allegation, that the defendant had notice." In Williams v. Smith, 2 Barn.
& Aid. R. 496, 500, Lord Tenterden said: "It is of the greatest im-
portance to commerce, that some plain and precise rule should be laid
down to guide persons in all cases, as to the time within which notices of
the dishonor of Bills must be given. That time I have always understood
to be the departure of the post on the day following that in which the party
receives the intelligence of the dishonor. And in that sense the passage
cited from the very learned treatise on Bills of Exchange must be under-
stood, as well as the judgment of Lord Mansfield in Tindal v. Brown. If,
instead of that rule, we were to say, that the party must give notice by the
next practicable post, we should raise in many cases difficult questions of
fact, and should, according to the peculiar local situation of parties, give
them more or less facility in complying with the rule. But no dispute can
arise from adopting the rule which I have stated. In its application to the
present case, the result is, that the plaintiff has been guilty of no laches,
and that he is entitled to our judgment- It appears, that, if these Notes
had been transmitted direct to Newbury by the post, they would not have
been paid ; for they discontinued payment there on Monday morning ; and
though the circumstance of one set of halves being sent by the coach
caused their arrival in London two hours later, still, that being a reasona-
ble precaution, the plaintiff had a right to send them by that conveyance.
CH. VIII.] PROCEEDINGS ON NON-PAYMENT. 411
into the post early enough to go by either post of that
day, however late in the day one of them may be ; for
the fractions of the day are not counted. 1
§ 325. The doctrine thus laid down may, perhaps,
admit, if it does not require, some other qualifications
and limitations. Thus, for example, in some towns
and cities, the post for the succeeding clay goes out
very early in the morning, or soon after midnight, and
the mail is made up and closed sometimes at an early
hour, and sometimes at a late hour, of the preceding
evening. In such a case, the question might arise,
whether, if the notice was not put into the post-office
until after the mail was closed on the evening of the
day of the dishonor, the notice would be too late, or
whether the holder or other party would be entitled to
the next day to prepare and send his notice by the
next succeeding post. No decision upon this point
seems to have occurred in England. But it would
deserve consideration, whether, under such circum-
stances, the second post might not be deemed the next
practicable post, in the sense of the rule ; for, other-
There is a difference between this case and that of a Bill of Exchange,
payable to order, for such Bill may be specially indorsed, and no risk in-
curred by sending it then by the post. But, here, it would not have been
so safe to have transmitted Notes payable to the bearer on demand by that
conveyance. Then, in addition to this, it appears, that the defendant has
not been in the least degree prejudiced by this mode of conveyance having
been adopted. On the whole, therefore, the" plaintiff is entitled to our
judgment. " See, also, 3 Kent, Comm. Lect. 44, p. 106, 107, (5th
edit.) ; Hilton v. Shepherd, 6 East, R. 14, note ; Townsley v. Springer,
1 Miller, Louis. R. 125 ; Ind. 515 ; Hubbard v. Troy, 2 Iredell, N. C. R.
134 ; Bank of U. States v. Merle, 2 Rob. Louis. R. 117 ; Commercial
Bank of Natchez v. King, 2 Rob. Louis. R. 243; Wample v. Danger-
field, 2 Smedes & Marshall, R. 445.
1 Whitewell v. Johnson, 17 Mass. R. 449, 454 ; Howard v. Ives, 1 Hill,
N. Y. R. 203. Contra, Bank of U. States v. Merle, 2 Rob. Louis. R.
117. .
412 PROMISSORY NOTES. [CH. VIII.
wise, the holder, or other party, could not have the
entire day of the dishonor to prepare his letter, or until
the next day to put it in the post. 1 A fortiori, there
would be strong grounds to contend for such an exten-
sion of the rale, where there is not a reasonable time
left, between the knowledge of the dishonor and the
closing of the mail, which is to go out on the next
morning, to prepare such notice, without neglecting all
other engagements and business. 2
1 Demonds v. Kirkman, 1 Smedes & Marsh. R. 644.
2 Story on Bills, § 288. To such a case, the language of Mr. Justice
Lawrence, in Darbishire v. Parker, 6 East, R. 3, 9, 10, seems properly to
apply. He there said ; " The question in this case is not, whether notice
of the dishonor of a Bill must be communicated by the next post after it
is received ? but, whether the party may omit to make such communica-
tion for the two next posts? for here it appears, that no notice was given
to the drawer till after the time when the second post would have con-
veyed it. Whenever the general question shall arise, it will be fit, ac-
cording to what was said by Lord Mansfield in Tindall v. Brown, to lay
down, with as much certainty as possible, some general rule with respect
to the reasonableness of notice. The general rule, as collected from that
and other cases, seems to be, with respect to persons living in the same
town, that the notice shall be given by the next day ; and, with regard to
such as live at different places, that it shall be sent by the next post ; but,
if in any particular place the post should go out so early after the receipt
of the intelligence as that it would be inconvenient to require a strict
adherence to the general rule, then, with respect to a place so circum-
stanced, it would not be reasonable to require the notice to be sent till
the second post. Considering the immense circulation of paper in this
kingdom, it is very material to have some general rule by which men may
know how they are to act in these cases ; leaving parties in particular
cases, where compliance with such rule cannot be reasonably expected, to
account for their non-compliance with the strict rule. When it is said to
be strange, that notice given the next day to persons living in the same
town should be sufficient, and yet that notice should be required to be sent
by the next post on the same day to persons living at another place, it
must be considered not merely when it is sent, but when it is received by
the persons who are to act upon it. Marius, and other general writers,
say, that the notice ought to be transmitted by the next post after it is
received ; and what was said by some of the Judges in Tindal v. Brown,
apd in other cases, agrees with this. As to whether reasonable notice be
4k
CH. VIII.] PROCEEDINGS ON NON-PAYMENT. 413
§ 326. The benefit of this rule is not confined to a
mere holder for value, hut it applies, also, to a holder,
a question of law or fact, it must be recollected, that the facts stated in
the report of Tindal v. Brown were afterwards found in a special verdict,
in which the jury did not find whether the notice were reasonable or not ;
on which special verdict this Court gave judgment for the plaintiff, and
that judgment was unanimously confirmed in the Exchequer Chamber."
The very point seems to have been adjudged by the Supreme Court of the
United States in Bank of Alexandria v. Swann, 9 Peters, R. 33. Mr.
Justice Thompson, in delivering the opinion of the Court upon that occa-
sion, said; "The general rule, as laid down by this Court in Lenox v.
Roberts, 2 Wheat. 373, 4 Cond. R. 163, is, that the demand of payment
should be made on the last day of grace, and notice of the default of the
maker be put into the post-office early enough to be sent by the mail
of the succeeding day. The special verdict in the present case finds,
that, according to the course of the mail from Alexandria to the city of
Washington, all letters put into the mail before half past eight o'clock,
P. M., at Alexandria, would leave there some time during that night, and
would be deliverable at Washington the next day, at any time after eight
o'clock, A. M. ; and it is argued, on the part of the defendant in error,
that, as demand of payment was made before three o'clock, P. M., notice
of the non-payment of the Note should have been put into the post-office
on the same day it was dishonored, early enough to have gone with the
mail of that evening. The law does not require the utmost possible dili-
gence in the holder in giving notice of the dishonor of the Note; all that
is required is ordinary reasonable diligence ; and what shall constitute
reasonable diligence ought to be regulated with a view to practical conve-
nience, and the usual course of business. In the case of the Bank of Co-
lumbia v. Lawrence, 1 Peters, 583, it is said by this Court to be well set-
tled at this day, that when the facts are ascertained, and are undisputed,
what shall constitute due diligence is a question of law ; that this is best
calculated for the establishment of fixed and uniform rules on the subject,
and is highly important for the safety of holders of commercial paper.
The law, generally speaking, does not regard the fractions of a day ; and,
although the demand of payment at the bank was required to be made
during banking hours, it would be unreasonable, and against what the
special verdict finds to have been the usage of the bank at that time, to
require notice of non-payment to be sent to the indorser on the same day.
This usage of the bank corresponds with the rule of law on the subject.
If the time of sending the notice is limited to a fractional part of a day, it
is well observed by Chief Justice Hosmer, in the case of the Hartford
Bank v. Stedman and Gordon, 3 Connect. R. 495, that it will always
come to a question, how swiftly the notice can be conveyed. We think',
35*
414 PROMISSORY NOTES. [CR\ VIII.
who acts as a mere agent for another person. Thus, if
a note has been transmitted by the holder to an agent
or banker, for the purpose of procuring payment thereof
at its maturity, such agent or banker will be entitled to
the same time to give notice of the dishonor to his prin-
cipal or customer, as if he were himself the real holder
for value ; and the principal or customer will be entitled,
after he receives such notice from his agent or banker,
to the like time to communicate notice to the antece-
dent parties, whom he means to charge, as if he were an
indorser, and had received the notice from the real holder
for value, and not from his own a2fent or banker. 1 In
short, for all the purposes of the law, the agent or banker
is, in such cases, treated as substantially a distinct and
independent holder. Indeed, upon any other ground?
therefore, that the notice sent by the mail, the next day after the dishonor
of the Note, was in due time." Mr. Chitty uses language not quite so
explicit. He says; " When the parties do not reside in the same place,
and the notice is to be sent by the general post, then the holder or party to
give the notice must take care to forward notice by the post of the next
day after the dishonor, or after he received notice of such dishonor,
whether that post sets off from the place where he is early or late ; and if
there be no post on such next day, then he must send off notice by the
very next post that occurs after that day ; but he is not legally bound, on
account of there being no post on the day after he receives notice, to for-
ward it on the very day he receives it." Chitty on Bills, ch. 10, p. 517,
518, (8th edit.) See, also, Story on Bills, § 288 - 290, 382, 383 ; Wright
v. Shawcross, 2 Barn. & Aid. 501; Bray v. Hawden, 5 Maule & Selw.
68.
T Bayley on Bills, ch. 7, § 2, p. 272, 273, (5th edit.) ; Chitty on Bills,
ch. 10, p. 521, 522, (8th edit.) ; Story on Bills, § 292 ; Haynes v. Birks,
3 Bos. & Pull. 599 ; Clode v. Bayley, 7 (English) Jurist, 1092 ; Scott v.
Lifford, 9 East, R. 347 ; Langdale v. Trimmer, 15 East, R. 291 ; How-
ard v. Ives, 1 Hill, N. Y. R. 263 ; Colt v. Noble, 5 Mass. R. 167 ; Church
v. Barlow, 9 Pick. R. 547, 549; Ogden v. Dobbin, 2 Hill, N. Y. R. 12;
United States Bank v. Goddard, 5 Mason, R. 366 ; Mead v. Engs, 5
Cowen, R. 303 ; 3 Kent, Comm. Lect. 44, p. 108, (5th edit.) See Sewall
v. Russell, 3 Wend. R. 276; Bank of Orleans v. Smith, 3 Hill, N. Y. R.
560 ; Bank of U. States v. Davis, 2 Hill, N. Y. R. 45L
CH. VIII.] PROCEEDINGS ON NON-PAYMENT. 415
it would be impracticable for the real holder, in many-
cases, to make due presentment, and give due notice o*
the dishonor of the Note, so as to charge the antecedent
indorsers, especially if he lived at a distance from the
place, where the presentment and dishonor took place.
And for the purposes of this rule and within its scope,
are deemed all cases, where a bank has different branches
established in different places, and a Bill is sent from
the one to the other for collection; for in such cases
each of the branches will be deemed to be independent
indorsers, and each be entitled to the usual notice of
dishonor, and entitled to give notice to paramount par-
ties accordingly. 1
§ 327. We have said, that the notice, when sent by
the post, should be sent by the post of the next day, or
by the next post after the day of the dishonor, or notice
of the dishonor. 2 And this is regularly true, where the
residence of the party entitled to notice is known ; but,
as we shall presently see, more time is allowed, where
the residence is unknown, and inquiries are necessary
to be made to ascertain it, before any letter can safely
be put into the post. 3 At present let us refer to the
language, that it is sufficient for the notice to be sent
by the next post. And this is most material to be con-
sidered, in cases, where the post does not go out every
day, but only every other day, or every third day, or
even once a week only, as formerly happened in many
of the country towns in the United States, and now
exists as between sparse and scattered settlements. In
all cases of this sort, it will be sufficient, that a letter is
1 Clode v. Bayley, 12 Mees & Wels. 51.
2 Ante, § 324.
3 Post, § 335.
416 PROMISSORY NOTES. [CH. VIII.
put into the post-office early enough after the day of the
dishonor of the Note to go by the next post, whether it
be a bi-weekly, or tri-weekly, or a mere weekly con-
veyance, if it be the ordinary mode of communication. 1
Hence, if the dishonor, or notice thereof to the holder
is on Monday, and the post does not again go out until
Wednesday to the place, where the party entitled to
notice lives, it will be sufficient, that it is put into the
post-office early enough to go by the post of that day.
§ 328. And here, again, it is important to state, that,
if the notice be put into the post-office to go by the
proper post, it is wholly immaterial to the rights of the
holder, whether it actually goes by the proper post, or
whether it ever reaches the party entitled to notice, or
not. All that the law requires of the holder is due
diligence to send the notice within the proper time ;
and he has done his whole duty, when he puts it into
the proper post-office in due season, and it is properly
directed. The holder has no control over the acts, or
operations, or conduct, of the officers of the post-office,
and is not responsible for the accidents, or neglects,
which may prevent a due delivery of the notice to the
party entitled to notice. 2
§ 329. We have already seen, that, where there are
joint indorsers entitled to notice, notice to one is not
!Post, § 331, note.
2 Story on Bills, § 300 ; Chitty on Bills, eh. 10, p. 503, 504, (8th edit.) ;
Bayley on Bills, ch. 7,§ 2, p. 279, (5th edit.) ; Saunderson v. Judge, 2 H.
Black. 509 ; Dobree v. Eastwood, 3 Carr. & Payne, 250 ; Kufh v. Wes-
ton, 3 Esp. R. 54 ; 3 Kent, Coram. Lect. 44, p. 106, 107, (5th edit.) ;
Shed v. Brett, 1 Pick. R. 401 ; Munn v. Baldwin, 6 Mass. R. 316; Jones
v. Wardell ; 6 Watts & Serg. 398; Smyth v. Hawthorn, 3 Rawle, R.
356 ; Bank of Columbia v. Lawrence, 1 Peters, Sup. Ct. R. 578, 583 ;
Thompson on Bills, ch. 6, § 4, p. 475, (2d edit.) ; Stocken v. Collin, 7
Mees. & Wels. R. 515 ; Woodcock v. Houldsworth, 16 Ibid. 124.
CH. VIII.] PROCEEDINGS ON NON-PAYMENT. 417
notice to all ; but that each is entitled to a separate
and independent notice, in order to bind him, exactly
as if he were the sole and single indorser. 1 The result
of this rule is, that where joint indorsers reside in differ-
ent towns and cities, at different distances from the
place of the dishonor, or place, where the notice thereof
is dated, or to be given, the notice may reach one of the
joint indorsers long before it does the other. But this
circumstance will make no difference in the rights of
the holder ; for he has performed his whole duty, and
exercised reasonable diligence, and his rights are com-
plete and perfect, although the notice should not have
reached both, or even either of the joint indorsers. 2
§ 330. The holder may, when the Note has been dis-
honored, either resort to his immediate indorser, and
then he must give him notice within the proper time,
or he may resort to any, or all, of the other indorsers,
in which case he must give them notice respectively, in
the same manner, as if each were the sole indorser;
for the holder is a not entitled to as many days to give
notice, as there are prior] indorsers ; but each indorser
has his own day. 3 If, therefore, there are five indors-
ers, and the holder should not give notice to the first
indorser until five days, that will be too late ; and,
unless some subsequent indorser has given him notice
in due time, who has himself received due notice, such
first indorser will be discharged from all liability to the
!Ante, § 308; Shepard v. Hawley, 1 Connect. R. 360; Bank of Che-
nango v. Root, 4 Cowen, R. 126 ; Willis v. Green, 5 Hill, N. Y. R. 232.
2 Ante, § 328.
3 Bayley on Bills, ch. 7, § 2, p. 275, (5th edit. 1830) ; Chitty on Bills,
ch. 10, p. 522, (8th edit. 1833) ; Dobree v. Eastwood, 3 Carr. & Payne,
250; Marsh v. Maxwell, 2 Camp. R. 210 ; Turner v. Leech, 4 Barn. &
Aid. 451 ; Etting v. Schuylkill Bank, 2 Barr. R. 355.
418 PROMISSORY NOTES. [CH. VIII.
holder. 1 In this respect, the French Law seems to be
in entire conformity to ours. 2
§ 331. Hitherto, we have spoken principally of the
notice of the dishonor, to be given by the holder of the
Note to the indorser. But in many cases there are
numerous successive indorsers on the Note, each of
whom is, or may be, entitled to notice, and each of whom
is bound equally to give notice to the antecedent indors-
ers, who are liable to indemnify him, if he should pay
the Note after due notice of the dishonor from the
holder. The question, in such a case, naturally arises,
within what time, after receiving such notice of the
dishonor from the holder, is the indorser bound to give
notice thereof to the antecedent indorsers upon the
Note, whom he means to hold liable to reimburse him ?
The general rule, now firmly established, is, that each
successive indorser, who receives notice of the dishonor,
is entitled to the whole day, on which he receives the
notice, and need not give any notice to the antecedent
indorsers until the next day after receiving the notice,
even when they live in the same town or city with him ;
and, if they live in different towns and cities, and he is
to give notice by the post, it will be sufficient, if he sends
the notice by the post of the next day after he has
himself received notice of the dishonor. 3 Thus, for ex-
i Bayley on Bills, ch. 7, § 2, p. 275, (5th edit. 1830) ; Chitty on Bills,
oh. 10, p. 522, 527, (8th edit. 1833) ; Marsh v. Maxwell, 2 Camp. R. 210 ;
Dobree v. Eastwood, 3 Carr. & Payne, R. 250 ; Turner v. Leech, 4 Barn.
& Aid. 451 ; U. States Bank v. Goddard, 5 Mason, R. 366. See Story
on Bills, §303, 304 ; Ante, § 301 - 303.
2Pardessus, Droit Comrn. Tom. 2, art. 429, 430 ; Chitty on Bills, ch.
10, p. 523, note (a). See Code de Comm. art. 165 ; Pothier, De Change,
n. 148, 152, 153.
3 Bayley on Bills, ch. 7, § 2, p. 268-270, (5th edit.) ; Chitty on Bills,
ch. 10, p. 513-515, 518, 520, 521, (8th edit.); Story on Bills, § 291,
CH. VIII.] PKOCEEDINGS ON NON-PAYMENT. 419
ample, if there are five indorsers, the holder himself, if
he means to give notice to all of t 
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