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Full text of "A digest of the law of bills of exchange : promissory notes and checks"

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jCornell University Library 

» Of exchange 




(5nrnf U 2Iaui ^riynnl library 




Cornell University 
Library 



The original of tiiis book is in 
tine Cornell University Library. 

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the United States on the use of the text. 



http://www.archive.org/details/cu31924018852131 



A DIGEST 



LAW OF BILLS OF EXCHANGE, 



PEOMISSOET I^OTES AKD CHECKS. 



I, «^ - BY 

M. D. CHALMERS, M. A., 



OF THE INNER TEMPLE, BARRI5TEK AT-LAW. 






REWRITTEN AND ADAPTED TO THE LAW AS IT EXISTS 
IN THE UNITED STATES, 



W. E. BENJAMIN, A. M. 



CHICAGO: 

CALLAGHAN & COMPANY. 

1881. 









Entered according to Act of Congress, in the year 1881, 

BY W. E. BENJAMIN, 

In the Office of the Librarian of Congress at Washington. 



PEEFAOE OF THE EDITOE. 



With the English work before him, the editor has en- 
deavored, as desired by the publishers, " to rewrite the book 
as Chalmers would have written it had he been an Araeri- 
cui." Accordingly, while in other particulars carrying out 
the plan of the author (see Introduction), the Articles, Ex- 
planations, etc., are statements of the law of America — the 
weight of authority where the States are in conflict, indi- 
cating authorities directly opposed by a citation of cases 
contra., while the important modifications or limitations of 
the prevailing rule of law, either in England or America, 
are concisely stated in the notes. The book has thus been 
thoroughly rewritten, and the work of the editor incorpo- 
rated with that of the author. This is an innovation which 
it is hoped will meet the approval of the prol'ession. For 
convenience of reference, each article is numbered the same 
as in the English publication. 

The cases have been selected with a view to the require- 
ments of the student as well as the practicing lawyer. The 
student will find as a general rule, that where the citations 
are numerous, the case first cited contains the clearest and 
fullest statement of the principle of law which it is cited 
to support, and for the lawyer has been selected that case 
from each State which, being the latest exposition of the 
law, contains the fullest citation of authorities. 

0') 



11 EDITOR'S PREFACE. 

Nothing of value to the profession has been omitte d 
while over fifty pages of new matter have been added to 
the text, and the result of much labor and thought, is now 
submitted to the profession, trusting that the difficulty of 
codifying the law of America on this or any other subject, 
will be duly appreciated. 

St. Paul, Minn., May, 1881. "W. E. B, 



INTEODUOTIOIS. 



As far as form goes, the present Digest is modeled on the 
Indian Codes, the main idea of which is as .follows. A 
general propositi'on is first laid down. Qualifications or less 
obvious deductions, when of sufficient importance, are next 
stated in the form of Explanations. Then come the Excep- 
tions, if any. These abstract propositions are illustrated, 
when necessary, by examples showing their application to 
particular states of fact. Each general proposition, with its 
accompanying "explanations" and "exceptions," forms a 
separate article. The same plan has been adopted by Sir 
James Stephen, in his Digests of the Law of Evidence and 
of the Criminal Law, and by Mr. F. Pollock, in his Digest 
of the Law of Partnership. As regards the subject of cod- 
ification generally, and its prospects in this country, I have 
little or nothing to say. Any reader interested in the 
matter, will find it fully discussed by the above mentioned 
authors in the Introductions to the works referred to. Sir 
James Stephen most certainly cannot be open to the charge 
of being a mere theorist. He has codified for India, with 
admirable success, both the Law of Contract and the Law 
of Evidence, and has shown that in competent hands like 
his, codification is not an unpractical dream, but a working 
and highly beneficial reality. These writers have also 
pointed out that Digests in the present form may be to 
some extent helpful in preparing the way for codification 
at home. In the meantime, I hope the form adopted may 
be found convenient for a text-book. As regards details of 
plan I must offer a few words of explanation. 

<iii) 



iv INTSODUCTION. 

For the most part, provisions applicable to Bills of Ex- 
change? are equally applicable to Promissory Notes and 
Checks; therefore the term "Bill" is used in the articles of 
this Digest as meaning and including Promissory Note and 
Check, as well as Bill of Exchange. When a provision 
does not apply equally to Notes and Checks the full expres- 
sion "Bill of Exchange" is used, and the distinction is 
pointed out in a note. The provisions peculiar to Promis- 
sory Notes and Checks are collected in two chapters at the 
end of the book. This plan has been adopted, first, in 
order to economize space, and secondly in order to give a 
clearer and more consecutive account of a Bill of Exchange, 
which is the typical and most important negotiable instru- 
ment. As to the second reason, I would refer to the re- 
marks of Mr. Justice Story, in the preface to his work on 
Bills of Exchange. Subject to the explanation given above, 
I hope this extensive meaning given to the word "Bill" is 
justified, and will not lead to confusion. There is to some 
extent authority for the coarse pursued. In the Stamp Act, 
1870, "Bill of Exchange" is defined so as to include Check, 
and in the reported cases on checks the instrument is 
frequently termed a "Bill," as indeed for most purposes it 
is. In the older cases on promissory notes the instrument 
is called indifferently a Bill or Note. 

To save space letters are substituted for names in the 
Illustrations, and to facilitate reference and comparison the 
same letter is always used to denote the same party to a 
Bill or Note. Thus A. is always used for the drawer of a 
bill; B. for the drawee or acceptor of a bill or the maker of 
a note; C. for the payee and first indorser of a bill or note. 
"When a case is quoted, the date is given. This avoids the 
necessity of referring to more than one report; and where 
cases are in conflict, it enables the reader to see at a glance 
which is the most recent and therefore the most authorita- 
tive. Where a case directly decides the point it is quoted 
to establish, the name is given simply; but when it only 
decides the point by implication or is relied on as an 



INTRODUCTION. V 

analogy, or when it merely contains an obiter dictum on 
the subject, the name is preceded by the mark cf. (compare). 

Anything like a detailed discussion of doubtful cases, or 
a history of past controversy on points which may now be 
considered as settled, would be foreign to the purpose of a 
work like this; but I have added to the ordinary Index of 
Cases, a list of the more important cases which have been 
overruled, doubted or explained nominatim, see p. 
The list has no pretention to completeness, but perhaps it 
may be useful as far as it goes. Several of the articles go 
beyond the logical limits of a digest of a special subject, 
inasmuch as they state propositions which apply not only 
to bills, but to all simple contracts alike. In some few 
cases of frequent occurrence, this is done in the hope that 
the book may thus be more useful to men of business, -who 
have not other books of reference at hand. In the major- 
ity of cases it is done because doubts have arisen as to 
whether bills were or were not governed by the ordina- 
ry rules. In a Code all such articles would be superseded 
by a single proposition to the effect that when the contrary 
is not expressed the ordinary rules of law applicable to 
simple contracts apply to bills. In an unthoritative 
Digest, such a proposition seems merely nugatory. 

It is almost needless to point out, that the similarity be- 
tween Indian Codes and a Digest like the present is mere- 
ly resemblance in form. There all analogy ends. In a 
Code the subject in hand is treated completely and finally. 
A code states methodically the law as the legislature is of 
opinion that it ought to be. This Digest is an attempt to 
state methodically the law as it is. In a Code, propositions 
and illustrations are alike authoritative. In this Digest, 
the illustrations taken from decided cases are alone autlior- 
itative. The general propositions ^re only entitled to 
weight in so far as they are complete and legitimate induc- 
tions from decided cases which are unquestioned law. A 
general proposition, supported by reference to cases, mere- 
ly amounts to a verifiable hypothesis as to what the law is 



vi INTRODUCTION. 

( In the tlieorj of Eii^lish law, there exists in nuMhus a 
complete set of principles applicable to every conceivable 
state of facts that can arise. Theoretically the judges do 
not make law. They only interpret it. They are merely 
the conductors by which the principle is brought down 
from the clouds and made available to men. Practically, 
however, their functions are frequently and of necessity 
legislative. If a wide subject be investigated systemati- 
cally, four states of the law will be found to exist. First, 
the law on a given point may be reasonably certain. All 
authority, or the great weight of authority, may be in favor 
of a given proposition. Secondly, a proposition on a giv- 
en point can only be stated as probably holding good. 
For instance, it may rest merely on uncliallenged obiter 
dicta, or there may be a. decision in favor of it, and weighty 
obiter dicta, opposed to it. Tliirdly, the law on a given point 
may be uncertain. Decisions may be in direct conflict, or 
again there may he a decision in point which has never 
been directly questioned, but the ratio decidendi of which 
seems entirely opposed to the principle of later cases. 
Fourthly, there may be an entire absence of authority on 
a given question. Such being the state of the materials 
available for forming a Digest, it is clear that if the sub- 
ject is to be treated methodically, many propositions can 
only be stated tentatively. Many of the articles, therefore, 
are qualified with a (probably) or a (perhaps), and the rea- 
son of the qualification is then stated in a note. 

On doubtful points frequent reference is made to Amer- 
ican cases and Continental Codes and writers. In mercan- 
tile matters, when the law is uncertain or authority want- 
ing, there is an increasing tendency to refer to Foreign 
Codes and laws in order to see how other nations have 
solved the difiiculty. This is especially the case as regards 
negotiable instruments, the most cosmopolitan of all con- 
tracts. Mr. Justice Story, in his judgment in Swift v. 
Tyson (16 Peters, 1), gives forcible expression to the prin- 
ciple. He says, "The law respecting negotiable instru- 



INTRODUCTION. VU 

ments may be truly declared, in the language of Cicero, 
adopted by Lord Mansfield in Luke v. Lyde (2 Burr. 887), 
to be in a great measure, not the law of a single country 
only, but of the commercial world. Non erit lex alia 
Romse, alia Athenis, alia nunc alia post hac, sed et apud 
omnes gentes et omni tempore una eademque lex obtinebit. " 

An American decision, it is needless to say, is not a 
binding authority in this country, but, if well reasoned, it 
is always considered with respect by our Courts. Many of 
the American judgments are very valuable as expounding 
and testing the principles of English decisions. An 
English case there, like an American case here, is only an 
authority in so far as it appears to be a correct deduction 
from the general principles of common law and the law 
merchant which prevail in botli countries alike. 

When the subject matter of an article of this Digest is 
dealt with by the French 'Codede Commerce, 'or the 
' German General Exchange Law, 1849, ' their respective 
provisions are compared^ If they agree, a mere reference 
to the corresponding sections is given. If they differ, the 
points of difference are given in a note. A vast number 
of the bills circulated in England are foreign bills. It 
seems useful, therefore, to indicate the main points of di- 
vergence which may give rise to a conflict of laws. The 
French Code is important, as it forms the basis of most of 
the continental Codes: Belgium and Italy, for instance, 
have adopted it almost in its entirety. French law is 
worthy of attention in another respect. In the absence of 
English authority, our Courts have, in some instances, 
consciously taken it as their guide. (See per Parke, B., in 
Foster v. Dawber, 6 Exch. 852.) The 'Code de Com- 
merce, ' to a great extent, embodies and enacts the opinions 
of Pothier whose authority, says Best, C. J. (in Cox v. 
Troy, 5 B. & Aid. 481), " is as high as can be had next to 
the decision of a Court of Justice in this country. " On 
doubtful points not dealt with by tlie Code, reference is 
occasionally made to Pothier, and also to the exhaustive 



vili INTRODUCTION. 

treatise of M. ll^onguier ( Des Lettres de Change and Des 
Effets de Commeroe, ith ed., 1875), which gives the latest 
results of French law. 

The German General Exchange Law of 1849 (slightly 
modified 1869), is important in two respects. First, it is 
the most elaborate and carefully worked out of the foreign 
Codes. Secondly, it is an International and not merely a 
national Code. AH the German states, including Austria, 
have adopted it, and the terms of its adoption are these. 
Each state is at liberty to supplement it by additional laws 
of its own, but such laws are not in any way to contradict 
or override it. M. 3Srouguier, in the work above referred 
to, gives in French the text of the Exchange Law, and also 
the various supplementary laws passed by the different states. 

It would probably be very advantageous to the com- 
mercial world if this principle of an International Code 
could be further extended. The difficulties of carrying it 
out do not seem insuperable, though, doubtless, they 
would be great. The provisions of such a Code woul.l 
have to be settled by agreemenb, and then each state would 
enact it for its own territory. In the case of England, it 
would probably, be necessary to confine its operation to 
foreign bills, that is to say, to bills drawn or payable abro^ul. 
Our law as regards foreign bills, does not widely diverge 
from the law of other commercial countries, and it diverges 
chiefly by allowing greater latitude than is adopted in 
practice. 

Occasional reference is made to the Indian Draft Code. 
For some reason I am not aware of, it has never been 
enacted. It is to be found in the 3rd Keportof the Indian 
Law Commissioners (1867). The Commission was a strong 
one, as it included Lord Justice James, Mr. Justice Lush, 
•and Mr. Lowe. The draft code is preceded by a report 
which points out where the provisions of English Law have 
been departed from. The document, therefore, is valuable 
as showing what, in tlie opinion of the Commissioners, the 
English law is, and also where it ought to be changed. In 



INTRODUCTION. IX 

a work like the present, it is thonglit it would be waste of 
space to carry references to foreign laws or authorities any 
further, but it may be worth while to mention where they 
can be found. 

Borchardt (VoUstandige Sammlung der geltenden "Wech- 
selund Handels Gesetze aller Lander, 1871), collects tlie 
statutory enactments of all countries relating to Bills of 
Exchange. Part I. gives a German translation. Fart II.- 
the original text. More than forty countries hSve codified 
their law on this subject; in fact, England and the United 
States seem to be the only civilized nations which have not 
done so. Since Borchardt's work was published tlie Egyp- 
tian Commercial Code has, I believe, been re-cast. I do 
not know how far the provisions relating to bills have been 
altered. M. ITouguier in a supplementary Chapter, to. his 
work on Bills (Des Lettres de Change, 1875), compares the 
laws of the chief commercial nations with the French Code. 
M. Masse's "Droit Commercial et des Gens" is a valuable 
work on the conflict of laws — especially as regards Bills. 
The latest American book, I believe, is Daniel on Negotia- 
ble Instruments, 1877. Story on Bills of Exchange, and 
Parsons on Kotes and Bills, are also standard American 
works. Thomson on Bills of Exchange, is the standard 
book on Scotch law which, it must be remembered, differs 
materially from the English. 

The origin and history of Bills of Exchange and other 
negotiable instruments are traced by the present Lord Chief . 
Justice in his judgment in Goodwin v. Roharts (1875), 10 
L. K. Ex., pp. 346 — 358. It seems that Bills were first 
brought into use by the Florentines in the twelfth century. 
From Italy the use of them spread to France, and event- 
ually they were introduced into England. The first 
English reported case in which they are mentioned in 
Martin v. Boure (Cro. Jac. 6), decided in 1603. "At first 
the use of Bills of Exchange seems to have been confined to 
foreign bills between English and foreign merchants. It 
was afterwards extended to domestic bills between traders, 



X INTRODUCTION. 

and finally to bills of all persons whether traders or not. " 
The law throughout has been based on the custom of mer- 
chants respecting them; the old form of declaration on bill 
used always to state that it was drawn "secundum usum et 
consuetndinem mercatorum. " In the time of Chief Jus- 
tice Holt, a controversy arose between the courts and the 
merchants, as to whether the customary incidents of nego- 
tiability were to be recognized in the case of promissory 
notes. The dispute was settled by the stat. 3 & 4 Aune, c 
9, which vindicated the custom and confirmed the nego- 
tiability of notes (p. 349). Again, in 1873 the Court of 
Queen's Bench were of opinion that documents other than 
bills and notes could not be endowed by custom with the 
incidents of negotiability. But the efficacy of custom was 
again upheld by the Exchequer Chamber in 1875, in 
Goodwin v. Rohai'ts, where it was determined that foreign 
script might be rendered negotiable by custom, so as to 
pass with a good title, and free from all equities to a iona 
fide piirchaser. The Court then say (p. 356), " While we 
quite agree that the greater or less time during which a 
custom has existed may be material in determining how 
far it has generally prevailed, we cannot think that if a 
usage is once shown to be universal it is the less entitled 
to prevail, because it may not have formed part of the law 
merchant as previously recognized and adopted by the 
Courts. " The House of Lords approved the decision 1876. 
The results of this formation of the law by custom are 
instructive. A reference to Marius' treatise on Bills of 
Exchange, written about 1670, or Beawes ' Lex Mercatoria, 
written about 1720, will show that the law, or perhaps 
rather the practice, as to Bills of Exchange, was even then 
pretty well defined. Comparing the usage of that 
time with the law as it now stands, it will be seen that it 
has been modified in some important respects. Compar- 
ing English law with French, it will be seen that, for the 
most part, where they differ, French law is in strict ac- 
cordance with the rules laid down by Beawes. The fact is, 



INTRODUCTION. ■ XI 

that when Beawes wrote, the law or practice of both nations 
on this subject was uniform. The French law, however, 
was embodied in a Code by the ' Ordonnance de 1673, ' 
which is amplified but substantially adopted by the Code 
de Commerce of 1818. Its development was thus arrested, 
and it remains in substance what it was 200 years ago. 
English law has been developed piecemeal by judicial de- 
cision founded on custom. The result has been to work 
out a theory of bills widely different from the original. 
The English theory may be called the Banking or Currency 
theory as opposed to the French or Mercantile theory. A 
Bill of Exchange in its origin was an instrument by which 
a trade debt, due in one place, was transferred in another, 
It merely avoided the necessity of transmitting cash from 
place to place. This tlieory the French law steadily keeps 
in view In England bills have developed into a perfectly 
flexible paper currency. In France a bill represents a 
trade transaction; in England it is merely an instrument 
of credit. English law gives full play to the system of ac- 
commodation paper; French law endeavors to stamp it 
out. A comparison of some of the main points of diver- 
gence between English and French law will show how the 
two theories are worked out. In England it is no longer 
necessary to express on a bill that value has been given, 
for the law raises a presumption to that effect. In France 
the nature of the value must be expressed, and a false 
statement of value avoids the bill in the hands .of all par- 
ties with notice. In England a bill may now be drawn 
and payable in the same place (formerly, it was otherwise, 
see the definition of bill in Comyn 's Digest). In France 
the place where a bill is drawn must be so far distant from 
the place where it is payable, that thei-e may be a possible 
rate of exchange between the two. A false statement of 
places, so as to evade this rule, avoids the bill in the hands 
of a holder with notice. As French lawyers put it, a Bill 
of Exchange necessarily presupposes a contract of ex- 
change. In England (since 1765) a bill may be drawn 



xu , INTRODUCTION. 

payable to bearer. In France it must be payable to order; 
if it were not so, it is clear that the rule requiring the con- 
sideration to be expressed would be an absurdity. In En- 
gland a bill originally payable to order becomes payable to 
bearer when indorsed in blank. In France an indorse- 
ment in blank merely operates as a procuration. An in- 
dorsement to operate as a negotiation must be an in- 
dorsement to order, and must state the consideration ; in 
short, it must conform to the conditions of an original 
draft. In England if a bill be refused acceptance, a right 
of action at once accrues to the holder. This is a logical 
consequence of the currency theory. In France no cause 
of action arises unless the bill is again dishonored at matu- 
rity; the holder in the meantime is only entitled to de- 
mand security from the drawer and indorsers. In England 
a sharp distinction is drawn between current and overdue 
bills. In France no such distinction is drawn. In En- 
gland no protest is required in the case of an inland bill, 
notice of dishonor alone being sufficient. In France every 
dishonored bill must be protested. Grave doubts may ex- 
ist as to whether the English or the French system is the 
soundest and most beneficial to the mercantile community, 
but this is a problem which it is beyond the province of a 
lawyer to attempt to solve. M. D. C 

Novemher, 1878. 



TABLE OF CASES. 



TABLE OF CASES CITED. 



A 

Abbott V. Bayley, 73. 

V. McElroy, 259, 260. 
V. Hendricks, 21, 22. 
Abel V. Sutton, 88. 
Abreyji. Crux, 58, 63, 64, 229, 240, 

241. 
Aokerman v. Ehrensperger, 218. 
Adams ». Adams, 102. 

V. BletKen, 121. 

V. Boyd, 158. 

V. Cordis, 219. 

V. King, 7. 

V. Wright, 186. 
Adansonia Co., in re, 76, 78. 
Agra Bank, in re, 208, 210, 

V. Leighton, 107, 144, 145. 
Alabama C. M. Co. v. Brainard, 6, 

49. 
/ Icock V. Hopkins, 255. 
Alderson v. Langdale, 252, 253. 
Aldojis*. Cornwall, 25, 250. ' 
Aldrich V. Grimes, 72. 

V. Smith, 249, 251. 

V. Stockwell, 21, 105. 
Alexander v. Buichfield, 263, 264, 
265. 

V. Parsons, 276. 

V. Sizer, 50, 84. 

V. Thomas, 28. 
Allaire v. Hartshome, 105. 
Allen V. Avery, 164. 

V. Bank, 237. 

». Brown, 216. 

V. Davis, 93. 

V. Edmundson, 160, 170, 189, 
190, 191, 198, 202. 

V. Kemble, 215, 221, 228. 

». Kramer, 211, 264. 

V. Merchants' Bank, 161, 

V. Sea Assurance Co., 3. 

V. Suydam, 149, 150. 
Alliance Bank v. Kearsley, 79. 
Almy V. Winslow. 4, 67, 272. 



(xy) 



Alsager v. Chase, 108, 62. 
American Bank «. Bangs, 249. 
American Emigrant Co. v. Clark, 

13, 14, 64. 
Ames V. Colbum, 252. 

V. Merriam, 265. 
Ammidown v. Woodman, 30, 31. 
Amner v. Clark, 38. 
Amory v. Merewether, 138. 
Ancher v. Bank, 128. 
Ancona v. Marks, 60, 146. 
Anderson v. Drake, 165. 
V. Walter, 58. 
V. Weston, 24, 88, 136. 
Anderton v. Beck, 173. 
Andrew v. Blachly, 30, 261. 
Andrews v. Bank, 263. 
V. FranMin, 26. 

V. Pond, 137. 

V. Simms, 217, 218. 
Angle V. Insurance Co., 35, 142. 
Anglo-Greek Nav. Co., in re, 145. 
Angrove v. Tippett, 258. ' 
Anibai). Yeomans, 121. 
Anonymous, 5. 
AnseU v. Baker, 229. 
Appleton V. Parker, 255. 
Archer v. Bamford, 107. 
Archibald v. Argall, 254. 
Armani*. Castrique, 39. 
Armistead v. Armistead, 172. 
Armstrong v. Chadwick, 139, 199. 

V. Christiani, 193. 

V. Gibson, 109. 

». Harshman, 35. 
Arnold V. Camp, 254. 

V. Check Bank, 59, 89, 91, 
208, 236. 

V. Dresser, 162, 206. 

V. Jones, 250. 

V. Sprague, 20, 76. 
Asphitel V. Bryan, 143. 
Asprey v. Levy, 225. 
Astley V. Johnson, 102, 106. 



XVI 



TABLE OF CASES CITED. 



Atkinson ». Hawdon, 253. 
Atlas Bank v. Doyle, 110. 
Attenborough v. Clarke, 96. 

V. Mackenzie, 135, 233. 
Attomey-Genl. v. Ins. Co., 261, 267. 

V. Pratt, 207. 
Attwood B. Crowdie, 96. 

V. Griffin, 249. 

V. MunningB, 80, 81. 

V. Rattenbury, 145, 146. 
Atwood V. Weeden, 108. 
Auerbaclu). Pritohett, 13. 
Aulton V. Atkins, 114. 
Aurora v. West, 109. 
Austin V. Birohard, 147. 

V. Vandermark, 86. 
Avery v. Stewart, 33. 
Awde V. Dixon, 36, 37, 142. 
Ayer v. Tilden, 212, 213, 214. 
Aymar v. Beers, 151, 155. 

V. Sheldon, 203, 217, 221. 
Ayrault ». Bank, 161. 
Ayres v. Milroy, 61. 
Ayrey ». Fearnsides, 17. 

B 

Backus V. Danfortb, 31. 
Bacon v. Bicknell, 272. 
Bagnall i>. Andrews, 195, 226. 
Bafley ». Bidwell, 110. 

r.,Bodenham,182, 188, 264, 
265. 

V. Dozier, 174. 

V. Porter, 164, 192. 
Bain v. Gregorjr, 191, 193. 
Bainbridge v. Hemingway, 106. 
Baird v. Underwood, 9. 
Baker, exvarte, 184, 190. 
, V. Birch, 168. 

V. CoUins, 21. 

t>. Dening, 57. 

». Martin, 226. 
Baldwin v. Bank, 161, 245. 

V. Hale, 228. 

i>. Richardson, 202. 

». Wade, 147. 
Balfour V. Ernest, 82. 

V. Sea Assurance Co., 92. 
Ballingalls v. Gloster, 218. 
Bancroft v. Hall, 186. 
Bange v. Flint, 121, 122. 
Bank v. Archer, 44. 

V. Bender, 184. 

V. Bogy, 209. 

V. Cameal, 160, 191, 192, 
194. 

e. Curry, 35. 



Bank v. Dandridge, 57. 

V. Daniel, 38. 

V. Douglas, .36. 

V. Ely, '44, 4.5. 

V. F. & M. Bank, 2^7. 

V. GilHland, 93, 111. 

V. Hollister, 160. 

V. Jervis, 223. 

V. Lawrence, 182, 184. 

V. Lyman, 78. 

V. Marsden, 44. 

V. Millard, 209. 

V. Mud^ett, 165. 

V. Muskingum Banli, 78. 

V. 'Seal, 40, 41. 

V. Orvis, 165. 

V. Patchin Bank, 78. 

V. Senior, 125, 232. 

V. Smith, 64, 274. 

V. Swamn, 185, 192. 

V. Triplett, 149, 153. 

V. Vanderhost, 97. 

«. Vaughan, 181. 

V. Victoria Bank, 60, 154. 

V. Walker, 246. 

t'. Willard, 150. 
Bank of Metropolis v. Bank. 97, 

252. 
Bank of Bengal v. Fagan, 88. 
Bank of Commerce v. Union Banlr, 

211. 
Bank of England v. Anderson, 56. 

.■». Newman, 222. 
Bank of N. C. v. Bank, 171. ■ 
Bank of Penna., Estate of, 19. 
Bank of U. S. v. United States, 219, 

220. 
Bank of Utica v. Bender, 198. 

V. Smith, 125, 181. 
Bank of Van Dieman's Land v. 

Bank, 150. 
Banks v. R. R. Co., 274. 
Bann v. Dalyell, 213. 
Banner v. Johnston, 12. 
Barber v. Richards,. 62, 94, 108, 

120. 
Barbour v. Fullerton, 275. 
Barclay, ex parte, 254. 

». Bailey, 160. 
Bardsley v. Delp, 93. 
Baring v. Clark, 178. 
Barker v. Parker, 33. 

V. Sterne, 23. 
Barlow e. Cong. Society. 84. 

V. Scott, 139. 
Barnes v. Stevens, 108. 

V. Vaughan, 159, 164. 



TABLE OF CASES CITED. 



XVll 



Barnes v. Ward, 20. 
Barnet t'. Smith, 262. 
Banic-y !'. Newcomb, 4."i. 
Barrett v. Evans, 184. 

V. Allen, 33. 
Barrington, in re, 114, 122. 
Barron v. Cady, 246. 
Barry Co. v. McGlothlin, 145. 
Bartholomew v. Hill, 202, 
Barflett v. Benson, 125, 180. 

V. Hawley, 85. 

V. Robinson, 184. 

V. Tucker, 78, 82. 
Bartley v. Hodges, 229. 
Barton v. Baker, 168, 197, 199. 
Bartrum v. Caddy, 230. 
Bassett v. Haine3,_ 44. 
Bastiau v. Dreyer," 108. 
Bateman v. Joseph, 198. 

V. Railway, 75. 
Bates V. Kempton, 116. 
Bathe v. Taylor, 247. 
Batty ». Carswell, 81. 
Bawden v. Howell, 146. 
Baxendale v. Bennett, 35, 58, 61. 
Baxter v. Duren. 224. 

V. Little, 139. 
Bay V. Coddington, 97. 
Bayard v. Shunk, 222', 224. 
Beak «. Beak, 268. 
Beale v. Parish, 185. 
Beals V. Peck, 190. 
Beard v. Dedolph, 116. 
Beardsley ». Hill, 15. 
Beaumont v. Greathead, 231, 283. 
Bechervaise v. Lewis, 145, 226. 

«-. Wight, 104. 
Beebe v. Brooks, 159. 
Beech v. Jones. 226. 
Beecham v. Smith, 239, 271. 
Beeching v. Gower, 163. 
Beeman v. Duck, 144, 211, 212. 
Begbie v. Levi, 24. 
Belcher v. Campbell, 60. 
Belknap v. Nat. Bank, 235. 
B6\kv. Cafferty, 223. 

V. Dagg, 223. 

V. Frankis, 202. 

V. Ingestre, 62, 63. 
BeUaray v. Majoribanks, 269. 
Bellemirew. Bank, 161. 
Belshaw v. Bush, 229. 
Benedict v. Cowden, 249. 
Beni'amin v. Tillman, 21 
Beniielt v. Farrell, 143. 
Bentinck v. Dorien, 157. 
Benton v: Martin, 62. 



Berkshire Bank v. Jones, 168. 
Berridge v. Fitzgerald, 179, 184, 

202. 
Berry v. Alderman, 110. 
Besant v. Cross, 65. 
Best V. Bank, 146. 

V. Crall, 97, 98. 
Bevan V. Eldridge, 31. 
Beveridge v. Burgis, 198. 
Bickerdike v. Boilman, 19-'). 
Bickford v. Bank, 261, 262, 266. 

V. Gibbs, 204. 
Bicloiall V. Waterman, 222, 224. 
Biesenthali). Williams, 10. 
Bignold, eoiparte. 168, 247. 
Bigalow V. Colton, 64, 216. 
BiDingham v. Bryan, 217. 
Billings V. Dovaux, 207. 
Bird J). Bank. 161. 
Birmingham Banking Co., ex parte, 

56. 
Bishop V. Chitty, 153, 172. 

V. Dexter, 159. 

V. Hayward, 135. 

«!. Young, 277. 
Bissell V. Lewis, 45. 

V. R. R. Co., 7.5-. 
Black 1). Ward, 12, 18, 14. 
Blackenhagen v. Blundell, 8. 
Blaine v. Bourne, 128, 180. 
Blake v. McMillen, 166. 
Blakely v. Grant, 190. 
Blanchard v. Kaull, 82, 84. 

V. Stevens, 93. 
Blankenship v. Rogers, 196. 
Blenn v. Lyibrd, 281. 
Blodgett V. Durgin, 163. 

V. Jackson, 133. 
Blum V. Mitchell, 21. 
Boardman v. Paige, 227. 

V. Spooner, 57. 
Boehm v. Garcias, 47, 157. 

V. Stirling, 265. 
Bolles-f). Steams, 181. 
Bolton V. Dugdale. 17. 
Bonar v. Mitchell, 176. 
Bond V. Famsworth, 197. 

V. Storrs, 125. 
Bonney v. Bonney, 245. 
Booth V. Powers, 252. 

V. Smith, 148. 
Borradaile v. Lowe, 202. 
Bosanquet v. Forster, 60. 
Bottoinley v. Goldsmith, 110. 
Bouldin v. Page, 191. 
Bounsall v. Harrison, 186. 
Bourdin v. Greenwood, 7, 260. 



XVUl 



TABLE OF CASES CITED. 



Bowen v. Newell, 31, 33, 261. 
V. Stoddard, 213, 214. 
Bowes ». Howe, 171. 
Bowles «). Lambert, 272. 
Bowling V. Arthur, 161. 
V. Flood, 245. 
V. Harrison, 184. 
Bowman v. McCiieSney, 25. 
Boyce v. Edwards, 44, 45. 
BoydiJ. Orton, 190. 
Boylston Bank v. Eichardson,, 237. 
Boyntoii». Pierce, 216. 
Bovs, in re, 62, 96. 
Bradlauffh v. De Rin, 68, 69, 70, 

123. 
Bradlee v. Boston Glass Co., So. 
Bradley v. Anderson, 65. 

V. Ballard, 75. 

V. Bardsley, 252. 

V. Mann. 248, 250. 
• Brady v. Chandler, 272. 
Braithwaite v. Coleman, 202. 

V. Gardiner, 211. 
BramhaU v. Beckett, 98. 
Brandao v. Barnett, 66, 98. 
Brannin v. Henderson, 43. 
Brannon v. Hursell, 213. 
Bransby v. Bank, 266. 
Bray v. Hadwen, 187, 188. 
Braynard v. Marshall, 228. 
Breckenridge v. Shrieve, 87. 
Bredow v. Mut. Sav. Inst., 87. 
Breed v. Cook, 222. 
Brett V. Levitt, 200. 

V. Marston, 125, 241. 
Brewster v. Wakefield, 213. 
Bridge v. Batchelder, 223. 
Bridges v. Berry, 180. 
Briggs V. Ewart, 58. 

V. Parsons, 161. 
Brind v. Hampshire, 59. ; 
Bristol i>. Warner, 6,20. 
Bristow V. SequeviUe, 68. 
Britton ». Dierker, 248. 
Broadway Bank ». Schmucter, 245. 
Bromagev. Lloyd, 59, 61. 

V. Vaughan, 191. 
Bromley v. Brunton, 268. 
Brook V. Hook, g9, 90. 
Brooks !). Allen, 245, 247, 251. 

V. Blaney, 165. 

V. Elkins, 272. 

V. Mitchell, 262. 

V. White, 229. 
Brooklyn City Ry. Co. v. Bank, 97. 
Brown, ea; porte, 115. 

in re, 261, 269. 



Browa v. Bebee, 15. 

«. Batchers' & D. Bank^ 56. 

V. Cm-tis, 205. 

V. Davies, 137. 

V. Donnell, 74, 76. 

V. Gilman, 272, 

V. Langley, 65, 

V. LecMe, 262. 

V. McDermott, 163. < 

V. Reed, 251. ' 

«. Smith, 229. 

V. Straw, 248. 

V. WinnisimmetCo., 75. 
Brownell v. Bonney, 201 . 
Browning v. Merritt, 216. 
Brummagin». Tallant, 272. 
Brummel». Endera, 94. 
Bruce v. Westcott, 248. 
Brush V. Reeves, 119. 
Brutt V. Picard, 252. 
Bryant v. Eastman, 133. 

V. Lord, 127. 

V. Wilcox, 200. 
Buckley, ex parte, 273. 

V. Jackson, 129. 
Buckner v. Finley, 39. 
Bulkeley r. Butler, 235, 
BuUard v. Thompson, 69. 
Buller V. Cripps, 2. 
Bullock V. Campbelli 258. 

•I). Taylor, 17, 18. 
Butt V. Morrell, 48. 
Bumpass v. Timms, 24. 
Burbridgei!. Manners, 185, 2:7, 233. 
Burohfield v. Moore, 211, 2i8. 227, 

238, 249, 250, 252. 
Burden v. Benton, 92, 94. 
Burgess v. Vreeland, 186. 
Burgh V. Legge, 179, 181, 199. 
Burke v. Allen, 277. 

V. Bishop, 268. 

V. McKay, 174, 176. 
Burkhalter v. Bank, 263. 
Burlingame v. Brewster, 84, 259. 

V. Foster, 184. 
Burmester v. Barron, 184. 
Bumap V. Cook, 124. 
Burnett v. Juday, 273. 
Bumham v. Allen, 16, 67. 
Burr V. Smith, 230. 
Burrill V. Smith, 218, 245. 
Burrows v. Jemino, 228. 

V. Keays, 114. 
Burson v. Huntington, 58, 61 
Burton V Rutherford, 258. 
Butcher t>. Stead, 93. 
Butler V. Cams, 58. 



TABLE OF CASES CITED. 



XiX 



Bu'er «. Mj^er, 69.' 
V. Paine, 13. 
Butterworth ». Le Despencer, 163, 

170. 
Bujrton 0. Jones, 163, 164 
Byara v. Doores, 82. 
Byrom v. Thompson, 252. 

C 

Cabot Bank v. Warner, 182, 183, 186' 
Cady V. Shepard, 216. 
Caldwell v. Lawrence, 144. 
Calhoun ». Albin, 101, 135. 
Callow D. Lawrence, 125, 136, 230, 

232. 
Calvert v. Baker, 249. 
Camden ». McKoy, 216. 
Came v. Brigham, 75. ' 
Camidge v. Allenby, 205, 222, 223. 
Campbell v. French, 80, 3l, 176. 

#. Hodgson, 64. 

V. Nichols, 214. 

V. Webster, 176, 201. 
Canal Bank v. Bank, 211. 
Cannam v. Farmer, 73. 
Capital Bank v. Armstrong, 251. 
Capron v. Capron, 29. 
Cardwell v. Martin, 247. 
Carew e, Duckworth, 196, 199. 
Cariss v. Tattersall, 252, 254. 
Carll V. Brown, 275. 
Carlow 1). Kenealy, 29. 
Carlos V. Fancourt, 11, 26. 
Carlton v. Bailey, 275. 
Carnegie «. Moriison, 45, 68. 
Carpent r v. Farnsworth, 8, 85. 

V. McLaughlin, 216, 245.' 
Carpenter ». North Bank, 88, 237. 
Carr v. Nat. Bank, 45, 46, 209. 
Carruth v. Walker, 119. 
Carruthers ». West, 139. 
Carter v. Burley, 175, 186. 

V. Flower, 179, 195. 
Carver v. Hayes, 272. 
Carvick v. Vickery, 134. 
Cas6 V. Burt, 154. 
Castrique v. Bernabo, 258. 

V. Buttegieg, 105, 120, 125; 
Cate V. Patterson, 272. 
Caton V. Caton, 66, 57. 
Cattou V. Simpson, 250. 
Gaunt V. Thompson, 166, 179, 191, 

197, 199. 
Cawein v. BrowinsH, 263. 
Cayuga Bank v. Bennett, 190. 
Cedar Falls Co, v. Wallace, 199. 
Central Bank v. Davis, 127. 



V. Levin, 184. 

V. Richards, 45. 
Chaddock i>. Vanness, 62, 64, 217. 
Chafee v. R. R., 216. 
ChalUs V. McCrum, 223. 
Chalmers ». Lanion, 139. 
Chambers v. Hill, 159. 

V. MiUer, 230, 237. 
Chambliss v. Matthews, 136. 
Champion v. Gordon, 261. 
Chanoine v. Fowler, 181. 
Chapman ». Black, 254. 

V. Cottrell, 60, 69, 271. 

V. Keane, 181, 185. 

V. Rose, 58, 100. 
Chapman v. White, 209. 
Chard v. Fox, 165, 192, 194, 195. 
Charles v. Blackwell, 81, 89, 235, 269. 

V. Denis, 64. 
Chamley v. Grundy, 206. 
Chartered Bank ». Dickson, 262, 

276, 277. 
Chase V. Alexander, 209, 
Chasemore v. Turner, 260. 
Cheek v. Roper, 153. 
Chemung Bank t). Bradner, 37, 80. 
Chenot t). Lefevre, 133. 
Chester v. Dorr, 139, 140. 
Chicago Ry. Co. v. Lowenthal, 2i4. 

V. West, 3. 
Chicopee Bank v. Chapin, 105.' 

V. Philadelphia Bank, 104. 
Childs V. Davidson, 121. 

V. Lailin, 163. 

V. Monins, 83. 
Chipman v. Tucker, 61, 63. 
Chism V. Toomer, 248, 253. 
Christie v. Peart, 46. 
Cisne v. Chidester, 28, 
Citizens' Bank zJ.New Orleans Bank, 
207. 210. 

V. Richmond, 25">, 252. 
City Bank v. Cutter, 33. 

V. First Nat. Bank, 238. 
Claflin e. Wilson, 129. 
Clagett V. Salmon, 245. 
Claridge v. Dalton, 195, 245. 
Clark V. Bank. 264. 

V. Boyd, 59. 

». Bum, 260. 

V. Eldridge, 192. 

V. Sigoumey, 61, 113, 

V. Whitaker, 116. 

V. Whiting, 215. 
Clatke, ex parte, 218. 

V. Johnson, 61, 136. 

V. Percival, 9. 



xs 



TABLE OF CASES CITED. 



Clayton ». Gosling, 26. 
Clerk V. Blackstock, 249. 
■ ■». Pigot, 124, 146. 
ClifFord v. Parker, 253. 
Cline V. Guthrie, 68. 
Clinton Bank v. Graves, 25. 
Clode V. Bayley, 188. 
Clough V. Seay, 253. 
Clute V. Small, 253. 
Cobb V. Doyle, 97. 
Cobum V. Webb, 250. 
Cochran v. Nebeker, 248. 
Cooks V. Masterman, 238. 
Coddington v. Dayis, 168. 
Coffin V. Loring, 30. 
Coffman v. Campbell, 45, 67. 
CoghUn V. May, 139. 
Colbome, ex parte, 275. 
Cole ». Cushiag, 124, 125. 

D. Jesaop, 161. 
Colehan v. Cooke, 26, 27, 64, 270. 
Colgate V. Buckingham, 29. 
Oolgrove v. TaQ'man, 247. 
Collins V. Gilbert, 100, 110. 

V. Martin, 96. 

V. Insurance Co., 77. 
CoUis V. Emmet, 215! 
Collott V. Haigh, 103. 
Colson V. AjTiot, 142. 
Commercial Bank v. Cunningham, 
230. 

V. First Nat. Bank, 238. 

V. French, 7. 

V. Bouth, 40. 

V. Varnum, 174. 
Commissioners v. Clark, 101. 

V. Wasson, 64. 
Commonwealth v. Bank, 250. 

V. Biitterick, 3. 

V. Mauley, 112. 
Comstock V. Hier, 97. 
Conaut V. Hitt, 259. 
Condon v. Pierce, 65, 218. 
Conley i>. Winsor, 110. 
Conn V. Thornton, 27. 
Connor ». Martin, 113. 
Conover». Earl, 122, 146. 

V. Stillwell, 10. 
Conro V. Iron Co., 79. 
Cook V. Baldwin, 43, 44. 

V. Home, 29. 

V. Lister, 131, 196, 229, 230, 
231, 233, 240, 244. 

V. Litchfield, 69, 192. 

V. Satterlee, 9, 14. 

V. Wright, 92. 
Coolidge V. Payson, 44, 45. 



Coolidge V. Buggies, 9. 
Cooper*. Meyer, 144, 211, 212. 

V. Waldegrave, 214. 
Copp ». Sawyer, ^54. 
■Coppin V. Gray, 258. 
Corbett V. Clark, 6, 12. 

V. Georgia, 27. 
Corcoran v. Doll, 2-54. 
Cordery v. Colville, 199, 200. 
Corgah v. Frew, 16. 
Cornell v. Nebeker, 251. 
Comer v. T^lor, 206. 
Cornwall v. Gould, 254. 
Cory V. Scott, 196. 
C stelo V. Crowell, 9. 
Cotav. Buck, 26, 28. 
Cote, ex parte, 59, 60. 
Cotes V. Davis, 74. 
Coulter V. Biehmond, 216. 
Courtauld v. Saunders, 84. 
Coward v. Hughes, 73, 92. , 
Cowie». Sterling, 7, 8. 
Cowing V. Altman, 23, 109, 206. 
Cox V. Nat. Bank, 65, 163, 164. 

V. Troy, 60. 

-B. Wallace, 65. 
Craig V. Price, 30. . 

V. Sibbett, 106. 

V. Twomey, 146. 
Cramer w. Eagle M'f 'g Co., 213. 
Crandall v. First Nat. Bank, 249. 

V. Sohroeppel, 206. 
Cranley v. Hillary, 170. 
Cranson ». Goss, 25. 
Crawford v. Bank, 219, 221. 

V. MiUspaugh, 240. 
Creamer v. Perry,' 198, 200. 
Cribbs*. Adams, 30, 32, 149, 174. 
Cripps V. Davis, 137, 229, 234, 260. 
Crist V. Crist, 113. 
Crocker v. Getchell, 193. 
Cromer v. Piatt, 181, 192, 194. 
Cromwell v. County of Sac, 137, 
213. 

V. Hewitt, 217. 
Crook V. Jadis, 100. 
Crooker v. Holmes, 29. 
Croolis V. Tully, 204. 
Crosby v. Grant, 137. 
Crosse e. Smith, 189. 
Crossley v. Ham, 137. 
Crosthwait v. Ross, 87. 
Crouch V. Credit Foneier, 67, 67, 69, 
117, 118, 119, 142, 275. 

V. Hall, 69. 
Crowe i). Clay, 147, 149, 206, 253. 
Crowell V. Plant, 61. 



TABLE OF CASES CITED. 



XX) 



Crowfoot V. Gumey, 16. 
Crutehley v. Mann, 35. 
Gumming v. Shand, 207, 208, 267. 
Cummings v. Boyd, 98. 
Cundy v. Marriott, 227, 252. 
CunUffe V. Whitehead, 115. 
Ounhingham p. Smithson, 48. 
Curlewis«. CorSeld, 201. 
Currie v. Misa, 93, 95, 98, 99, 102. 
Currier v. Lookwood, 272. 
Curtin v. Pattra, 72. 
Curtis V. Bemis, 141. 

V. Mohr, 97. 

V. Smith, 75. 

». Sprague, 123. 
Cushman v. Haynes, 16. , 

V. Welsh, 14. 
Cutler V. Reynolds, 261. v 

Cutting ». Conklin, 121. 

D 

Da Costa v. Cole, 19. 

Daggett V. Daggett, 272. 

Dale v. Gear, 62, 64. 

Dalrymple v. Hillenbrand, 111, 218. 

Daly 1). Froetz, 31. 

Dana v. Sawyer, 160. 

V. Underwood, 144. 
Darhishire v. Parker, 186. 
Darnell v. Williams, 105. 
Davega v. Moore, 6. 
Davidson v. Cooper, 251. 

V. Lanier, 35, 37. • 
Davies v. Humphries, 258. 
Dayis v. Allen, 79. 

V. Barger, 25. 

V. Bartlett, 111. 

V. Bean, 107. 

V. Brown, 65. 

V. Building Union, 75. 

V. Carson, 97. 

V. Clarke, 48. 

V. Cook, 86. 

V. Miller, 189. 

V. Neligh, 139. 

V. Stevens, 231. 
Davison v. Roberts, 86. 
Dawes v. Harness, 408. 
Dawkes v. De Lorane, 9, 11. 
Dawson v. Bank, 65. 

V. Morgan, 214. 

». Prince, 90. 
Day V. McAllister, 24. 

». Nix, 107. 
Dayton v. Trull, 205. 
Deacon v. Stodhart, 231, 242. 
Deaai v. Hewitt, 260. 



Dearsdorff v. Foresman, 61. 
De Arts v. Leggett, 147. 
De Bergareche v. Pillin, 163. 
Deblieux v. BuUard, 187. 
Deemen v. Haskell, 276. 
DeForest v. Frary, 10, 27. 
Dehers v. Harriott, 130, 162. 
De la Chaumette v. Bank, 69, 95, 

99, 102, 145. 
Delano v. Bartlett, 110. 
Delatorre v. Barclay, 240. 
DeLavalette e. Wendt, 267. 
Dennison v. Tyson, 13. 
Dennistoun «. Stewart, 174, 192. 
Denston v. Henderson, 243. 
Dent V. Dunn, 213. 
Denters v. Townsend, 1.38, 141. 
Denton v. Peters, 62, 96 105, 120. 
DepewB. WheMn, 147. 
Desha v. Stewart, 53. 
Deshon v. Leffler. 67. 
De Tastet v. Baring, 220. 
Devehng ». Ferris, 198. 
Devlin v. Chamblin, 222. 
Dickerson ». Wason, 98. 
Dickins v. Beal, 19.5. 
Dickinson ti. Vidpy, 87. 
Dillon V. Rimmer, 254. 
Dingham v. Amsink, 110. 
Dinsmore v. Duncan, 2j1, 274. 

275. 
Dixon, ex parte, 143. 

V. BoviU. 12. 

V. Nutall, 26, 32, 172. 
Dod V. Edwards, 234. 
Dodd V. Bishop, 82. 

V. Gm, 172. 
Dodge V. Bank, 2.S4. 

V. Freedman's Trust Co., 
230, 231. 
Dohoney v. Dohoney, 24. 
Dolfus v._ Frosch, 125. 
Don V. Lippman, 70, 259. 
Doremus v. Burton, 33. 
Dormau «. Dibdin. 19. 
Doty ». Bank, 108. 
Dougherty ». Bank, 171 

V. Deeny; 230, 2.32. 
Douglass V. Wilkeson, 8. 
Downer v. Tucker, 27. 
Downes v. Church, 39, 40, 41. 

V. Richardson, 247, 251. 
Downey v. Hicks, 222. 
Downing v. Traders' Bank, 233. 
Drain v. Harvey, 65. 
Drake v. Markle, 13, 272. 

V. Rogers, 23. 



XXll 



TABLE OF CASES CITED. 



Draper v. Jackson, 112. 

V. Wood, 249, 251. 
Drayton v. Dale, 212, 277. 
Dresser v. Misaouri Co., 93, 99, 

111. 
Drigg.s V. Rockwell, 139. 
Druit V. Parker, 61, 252. 
Drurjr V. Maoaulay, 9, 22. 
Dubois V. Mason, 216. 
Dubuys V, Farmer, 31. 
Dudman v. Earl, 125. 
Duel V. Bricker, 43. 
Dugan V. United States, 125. 
Dumont V. Pope, 161. 

V. Williamson, 126, 218. 
Dunavan v. Flynn, 42 60. 
Dunbar v. Tyler, 169. 
Duncan v. Louisville, 274. 

». Niles, 82, 85. 

V. Scott, 108. ■ 
Dunbam v. dogg, 138. 
Dunn V. O'Keefe, 143, 155, 176, 

181. 
Durgin v. Bartol, 6. 
Durfin V. Cranston, 41. 
Dumi'ord ». Patterson, 30. 
Dutton V. Marsb, 57, 84, 275. 
Dwight V. Newell, 114. 
V. Scovil, 196. 

E 

Eagle V. Kohn, 109. 
Eagle Bank v. Chapin, 185. 

V. Hathaway, 183. 
Earl V. Peck, 93. 
Earle v. Reed, 72. 
liast V. Smith, 179, 181, 194, 195. 
Eastern Bank ». Brown, 184. 
East India Co. v. Tritton, 239. 
Eastman v. Furman, 159. 

V. Plummer, 231. 
East of England Banking Co. in re, 

168, 213. 
Easton v. Pratchetfc, 104. 
East Tenn. Co. v. Gaskill, 84. 
East Township r. Ryan, 11. 
Eastwood V. Bain, 83. ' 

V. Kenyon, 92. 
Eaton V. Boissonault, 213. 
Edgerlyp. Shaw, 72. 
Edie V. East India Co., 66, 118, 128, 

129. 
Edis V. Bury, 67. 
Edmunds ». Bushel!, 79, 
Edson V. Fuller, 43, 46. 

V. Jacobs, 190. 
Edwards v. Dick, 109. 



Bggan V. Briggs, 138. 
Ehrichs v. De Mill, 11. 
Eilbert v. Finkbeiner, 216. 
Elford V. Teed, 160. 
EUis V. Commercial Bank, 203. 

V. McHenry, 228. 

». OhioTrustCo,,211, 237. 

I). Wheeler, 6. 
Ellison ». Collingridge, 9. 
EUston V. Deacon, 86. 
Ellsworth V. Brewer, 232. 
Elsam v. Denny, 232. 
Elwell V. Dodge, 78. 
Emblin ». Dartnell, 171. 
Emerson v. Bums, 110. 
Emery v. Hobson, 126. 

r. Vinall, 24. 
Emmanuel «. Robarts, 66, 267. 
Emmett v. Tottenham, 147. 
English Credit Co. t. Arduin, 207. 
Ernst jr. Steckman. 28. 
Brwin ». Lynn, 124. 
Esdaile v. LaNauze, 91 

V. Sowerby, 16S, 190. 
Esley«. People, 71, 277. 
Espy V. Bank, 262. 
Estes V. Tower, 31. 
European Bank, expaiie., 103. 

in re, 97. 
Evans v. Cramlington, 128, 130. 

v. Foreman, 251. 

V. Philpotts, 272. 

t>. Secrest, 74. 

V. Underwood, 26. 

V. Whvle, 222. 
Everard v. Watson, 191, 193. 
Everett v. Vendryes, 70. 
Evertson v. Banli^ 31. 
Ewin ». Lancaster, 244, 246. 
Eyre i;. Walker, 261. 
Exchange Bank v. Rice, 45, 209. 
Exon V. Russell, 171. 



Fair v. Dunlap, 216. 
Fairchild v. Ry. Co., 3. 
Fairclough v. Pavia, 94, 106, 119 

125, 138, 215. 
Fairlee v. Herring, 43. 
Faith V. Richmond, 77. 
Fales V. Russell, 147. 
Fanshawe «. Peat, 51, 67, 250. 
Fareira v. GabelJ, 109. 
Farmers' Bank v. DuvaJl, 185. 

». Garten. 37. 

V. Kercheval, 204. 

». Rathbone, 103, 230, 246. 



TABLE OF CASES CITED. 



XXI 11 



Farmers' Bank v. Small, 238, 

)). Vail. 185. 
Farnswortli v. Allen, 160. 

V. Drake, 143. 
Farqnar v. Southey, 250. 
Farrell e. Lovelt, 100. 
FarweU v. Curtis, 263, 265. 
Passin v. Hubbard, 126. 
Ka,woett v. Freshwater, 245. 
Fay V. Fay, 108. 

t\ Smith, 250. 
Feariug v. Clark, 61. 
Fearn v. Filica. 80. 
Feriey i: McDonald, 262, 265. 
Fellows r. Wyman, 88. 
Fenn v. Harrison, 76, 221, 223. 
Fentum v. Pocock, 247. 
Ferris v. Bond, 5, 270. 
Field V. Carr, 60. 

V. Tibbetts, 137. 
Fielder v. Marshall, 67. 
Filley v.- Phelps, 78. 
Finley v. Green, 64. 
Finney v. Callendar, 25. 
First Nat. Bank v. Bank 64. 

V. Beaird, 97. 

». Dubuque Ry. Co. 12 209. 

«;. Gay, 17. 

4). Hall, 133. 

V. Harris, 265. 

V. Leach, 262. 

V. Marine Bank, 217. 

V. Morgan, 254. 

V. Needham, 266. 

V. Owen, 161. 

4). Pettit, 45, 46. 

e. Price, 25. 

V. Rioker, 236. 

V. Ryerson, 182. 

V. Strang, 58. 

». Tappan, 'A3Q. 

V. Whitman, 209. 

V. Wood, 182, 187. 
Firth V. Brooks, 263. 

V. Thrush, 181, 188, 190, 
202. 
Fisher v. Fisher, 97. 

V. Leland, 107. 

V. Rieman, 224. 
Fitch V. Jones, 67, 102, 109, 110. 
Fitchburg Bank v. Greenwood, 126. 

V. Rice, 9. 
Fitchburg Ins.' Co. ». Davis, 180. 
Fleet V. Perrins; 112, 11§. 
Fletcher v. Chase, 93. 
Flight V. Reed, 92, 254. 
Flint V. Craig, 249. 



Flint ». Flint, 123. 
Folger i>. Chase, 78, 122. 
Foliett V. Moore, 14. 
Foly V. Hill, 267. 
Foote V. Brown, 204. 
Forbes v. Espy, 143. 

V. Marshall, 78. 

c Omaha Nat. Bank, 183, 
184. 
Ford v. Angelrodt, 51, 157. 

V. Beech, 229. 
Formanu, Jacob, 78. 

V. Wright. 104. 
Forsi-eri!. Mackreth, 81, 87, 261, 267. 
Foster v. Dawber, 102, 240. 

J'. Julien, 165.' 

V Mackinnon, 58, 216. 

». Parker, 196. 
Fowler v. Bush, 255. 

». Palmer, 141. 

V. Strickland, 105. 
Fralick v. Norton, 16. 
Frank v. Kaigler, 123. 

V. Wessels, 10, 13. 
Franklin »i. Twogood, 114. 
Franklin Ins. Co, o. CourLnjy. 248. 
Frazieri). Ma.ssey, 73. 

c. Warfield, ,214. 
Frayzer v. Dameron, 166. 
Freakley e. Fox, 239. 
Freeman v. 0' Brien, 200. 
Freedman's Bank v. Perkins, 08,187. 

V. Savejy, 142. 
Freese v. Brownell, 70, 221. 
French v. Bank, 167, 195, 198. 

V. Jarvis, 1:^6, 2:^2. 

V. Tm-ner, 114, 121. 
Freund v. Bank, 115. 
Freyert v. Henry, 227, 230. 
Fritsch v. Heislen, 25. 
Frontier Bank v. Morse, 224. 
Fry ». Hill, 151. 
Fryer v. Ro;, 257. 
Fugitt V. Nixon, 202. 
Fuller V. Hooper, 196. 
Fulton V. Maccracken. 174. 
Furze ». Sharwood, 192. 

G 

Gage V. Lewis. 173, 205. 

V. Sharp, 61, 108. 
Gale V. Miller, 89. 

V. Walsh, 175. 
Gallagher v. Black, 43. 
Gammon f. Everett, 172. 

V. Schmoll, 15'' 
Garden v. Bruce, 259. 



XXIV 



TABLE OF CASES CITED. 



Gaidaer v. Maynard, 232. 

V. Walsk, 248, 249, 273. 
Garland v. Jaeomb, 87, 212. 
Garlock ». Geortner, 148. 
Garnet v. McKewaa, 267. 
Garnett v. 'VVoodcock, 160. 
Garrard v. Cottrell, 226. 
Gaiton V. Bank, 78. 
Gaskitt V. Davis, 29. 
Gates V. Beecher, 166, 191. 
V. Union Bank, 254. 
Gatty V. Fry, 23, 267. 
Gay V. Lander, 271. 
Gaytes v. Hibbard, 7. 
Gazzam v. Armstrong, 54, 55. 
Geary v. Physio, 66. 
Geiger v. Clark, 204. 
Geill V. Jeremy, 186. 
General So. Am. Co., in re, 208, 214. 
George v. Surrey, 56. 
Geralopulo v. Wieler, 54, 174, 178, 

242. 
Gerliadt». Savings Inst., 161 
German v. Ritchie, 213. 
Gerrish v. Clines, 249. 
Gibbs V. Fremont, 215, 217, 221, 

V. Mather, 158, 162, 171, 249, 
270. 
Gibson D. Cooke, 209. 

V. Hunter, 143. 

V. Minet, 119, 121, 143. 

V. Toby, 222. 
Giffert V. West, 223. 
Gilbert v. Dennis, 162, 191, 192, 194. 
Giles V. Bourne, 22. 
Gill V. Cubitt, 100. 
Gillespie v. Wheeler, 217. 
GiUett V. Sweat, 249, 203. 
Gillilan v. Myers, 9, 14. 
Gist V, Lybrand, 165, 184. 
Givens v. Bank. 168, 200. 
Glad well v. Turner, 185, 186, 202. 
(ilasgow V. Pratt, 182. 
Gleason v. Hem-y, 89. 
Glennie v. Imri, 107. 
Gloucester Bank v. Salem Bank, 
238. 

V. Worcester, 245. 
Glyn V. Hood, 12. 
Goddard v. Bank, 211, 237. 
Godfray v. Coulman., 152. 
Godfrey v. Rioe, 258. 
Goggerlf 1). Cuthbert, 62. 
Goldsmid v. Hampton, 4, 38. 
Gomersall, inre, 98, 99, 105, 140. 
Gompertz v. Bartlett, 223. 
Good V. Martm, 186, 216. 



Goodallc. Dolley, 201. 

V. Polhill, 188, 243. 
Goodenow v. Curtis, 250. 
Goodman v. Harvey, 99, 100, 137. 

». Simonds, 97, 99, 100. 
Goodnow v. Warren, 191. 
Goodspeed v. Cutler, 251. 
Goodwin, in re, 244, 246. 

■V. Buzzell, 260. 

V. Eobarts, 13, 66, 118, 145, 
207, 262, 266, 275. 
Gorden v. Robertson, 251. 
Gordon v. Wansey, 227. 
Goss V. Nelson, 26. 
Gould V. Robson, 244. 

V. Segee, 61, 93. 
Goupy V. Harden, 126, 151. 
Gove V. Vining, 200, 
Gowan v. Jackson, 151. 
Gower V. Moore, 166. 
Grafton Bank, v. Cos., 165. 
Granite Bank v. Ayers, 165. 
GrajUt v. Da Costa, 21. 

V. Hunt, 45. 

V. Kidwell. 234. 

V. Shaw, 47. 

V. Vaughan, 6. 

V. Wood, 12, 27. 
Graves ». American Bank, 89. 

V. Key, 141, 230. 
Gray v. Bowden, 272. 

V. Johnston, 234, 266. 

V. Milner, 4. 

■i: Raper, 84. 

V. Seckham. 96, 220. 

V. Ward, 87. 
Griener v. Ulerey, 71. 
Griffin V. Kemp, 209, 263, 264. 

V. Weatherby, 12, 162, 210. 
Griffith V. Grogan, 2-55. 
Griffiths V. Keflogg, 58. 
Grimm v. Warner, 60. 
Grimshaw v. Bender, 38, 69, 220. 
Green v. Carhill, 113. 

V. Davies, 7. 

V. Greensborough College, 
260. 

V. Shepherd, 21. 
Greene v. Bates, 245. 

V. Thompson, 173. 
Greenfield Bank «. Crafts, 89. 

V. Stowell, 251. 
Greenough v. McClelland, 24'!. 
Greenough v. Smead, 124, 216. 
Greenwich Bank v. DeGroot, 183, 

184. 
Grey v. Cbopsr, 71, 73. 



TABLE OF CASES CITED. 



XXV 



Grocer's Bank v. Penfield, 98. 
Grover v. Grover, 116. 
Groves v. Ruby, 122. 
Guardians of Lichfield v. Greene. 

222. 
Guepra.tte v. Young, 68. 
Guild V. Butler, 244, 245, 246. 
Gumey v. Evans, 79. 

V. Womersley, 223. 
Guy V. Bibend, 92. 
Gwinnell v. Herbert, 215, 217, 277. 
Hackenbury v. Shaw, 20. 
Hadden v. Rodkey, 115, 
Hagerstown ». Adams Ex. Co., 147. 
Hageye. HiU, 245. 
Haines v. Pearce, 255. 
Hale V. Burr, 166. 
Halifax v. Lyle, 211. 
Halifax Union v. Wheelwright, 236. 
HaU V. Allen, 110. 

V. Burton,'271. 

V. Cole, 245. 

V. Crandall, 82, 85. 

V. Featherstone, 110. 

V. Fuller, 236. 

V. Kimball, 239. 

V. McHenry, 249. 

V. Steel, 44. 
Hallowell v. Cun-y, 185. 
Halstead v. Skelton, 172. 
Hamelin v. Bruck, 248, 252 
Hamilton v. Hooper, 249, 251. 
Hamilton v. Prouty, 245. 

V. R. R. Co., 57, 75. 
v. Spottiswoode, 11. 
Hanbury v. Lovett, 36, 249. 
Hance v. MiUer, 124. 
Hancock Bank v. Joy, 74. 
Hannum v. Richardson, 126. 
Hansard v. Robinson, 147, 162, 206. 
Ilapgood V. Watson, 271. 
Harding v. Edgecumbe, 260. 
Hardy v. Merriweather, 75. 
V. Pilcher, 3, 83. 
V. Woodroffe, 168. 
Hare v. Henty, 263, 264. 
Harger v. WorraU, 110. 
Harker v. Anderson, 158, 159, 261. 
Harmer v. Killing, 72. 
Harmer v. Steele, 5, 120, 123, 210, 

227, 230, 239. 
Harms v. Aufield, 92. 
Harper v. West 43. 
Harpham v. Child, 192. 
Harris v. Amery, 86. 

V. Clark, 166, 268. 

V. Parker, 163. 



Harrison ex parte, 122. 

•t/. Close, 240. 

V. Courtauld, 247. 

V. Dickson, V;19. 

V. McKim, 64. 

V. Ruscoe, 181, 182. 
Harrop v. Fisher, 80, 88, 115, 122, 

124. 
Harsh v. Klepper, 248. 
Hart V. Life Association, 272. 

V. Stephens, 112. 
Hartford Bank ». Green, 163. 
Hartford Ins. Co. v. Wilcox, 82. 
Harvey v. Cane, 6, 46. 

V. Nelson, 168. 
Hasey v. WhiteP. B. S. Co., 3. 
HaskeU v. Boai-dman, 186, 198. 

V. Lambert, 9. 

V. Mitchell, 122. 
Hatch «. Searles, 05, 36, 37, 142, 269. 

V. Stalworth. 51. 

V. Trayes, 20, 102. 
Haussoullier v. flartsinck, 6, 12. 
Havens v. Talbot, 200. 
Hawkes v. Salter 183, 186. 
Hawkins v. Cardy, 123. 
Haxton v. Bishop, 171 . 
Hay »; Ayling, 108, 254. 
Hayes v. Brubaker, 250. 

V. Wingate, 271. 
Hays V. Crutcher, 83. 

V. Gwin. 9, 22. 
Hayward, ex parte, 4, 37. 

V. Munger, 13C. 

V. Pilgrim Society, 75. 
Heath v. Silverthom, 9-i. 
Heaton v. Knowlton, 108. 
Hedges v. Sealy, 97. 
Heenan v. Nash, 48, 49. 
Heffron v. Hanaford, 86. 
Heilbutt V. Nevill, 88, 89; 122, 123, 

134. 
Helmer v. Krolick. 17, 28. 
Hemmenway v. Stone, 273, 
Henderson v. Fox, 72. 
Hendricks v. Franklin, 220. 

■e. Thornton, 8. 
Henry v. Hazen, 26. 

V. Lee, 160. 
Herald r. Connah, 49. 
Herbage v. MoEntee, 216. 
Herbert c. Servin, 184, 198. 
Hereth r. Bank, 138. 
Herrickc. Baldwin, 165. 

D. Woolverton, 276. 
Herring v. Woodhull, 122. 
Hersey v. Elliott, 113, 115. 



XXVI 



TABLE OF CASES CITED. 



Hewitt ». Kaye, 268. 
Hewitt V. Thompson, 202. 
Heylyn v. Adamson, 270, 277. 
Heysham v. Dettre, 108. 
Heywood v. Perrin, 65. 

V. Pickering, 161, 188, 263, 
264. 
Hibernian Bank v. Everman, 140. 
Hickling v. Haardey, 156. 
Hicks V. Beaufort, 201. ' 
V. Hinde, 77, 85. 
Highmore v. Primrose, 21. 
Hilborn v. Alford, 57. 
Hill V. Buckminster, 104, 254. 
V. Dunham, 25. 
V. Halford, 11. 

, V. Heap, 168, 200. 
V. Henry, 257. 
V. Royds, 209. 
V. Todd, 18. 
V. Wilson, 21, 92. 
Hills??. Parker, 96., 

•■». Place, 171. 
Hilton V. Pairolough, 186. 
V. Smith, 105. . 
Himmelmann v. Hotaling, 151, 265. 
Hine v. Allely, 163, 164. 
Hirschfields. Smith, 18, 19, 185, 203, 

249. 
Hirsehm.ans.Budd, 248. 
Hitchcock ii). Humfrey, 173, 204. 
Hoare v. Cazenove, 53, 178, 224. 
Hodges V. Hunt, 72. 

V. Shuler, 192, 274. 
Hoffman v. Foster, 139. 

4). Moore, 216, 
Hogarth v. Latham, 4. 

V. Wherley, 80. 
Hogg V. Skeen, 90, 111. 
HoitiJ. UnderhUl, 72. 
Holbrow V. Wilkins, 204. 
Holcomb V. Wyckoff, 98, 111. 
Holden v. Cosgrove, 254. 
Holds worth v. Hunter, 2, 40, 41. 
Holeman v. Hobson, 105. 
HoUand v, Hatch, 36, 249. 

V. Johnson, 245. 
HolUday v. Atkinson, 104, 116. 
Holmes V. Jaques, 7. 

V. Kerrison, 257. 

V. Kidd, 65, 138. 

V. McGinty, 274. 

V. Staines, 202. 

V. Trumper, 251 

V. West, 25. 
Holt V. Ross, 212, 



Holzworth V. Koch, 97, 107. 
Homes v. Hale, 50. 
Honey, ex parte-, 273. 
Hood V. Hallenbeck, 168. 
Hook V. Pratt, 128, 130, 
Hooks p. Anderson, 217. 
Hooper v. IVeffery, 106. 

V. Williams, 271, 272. 
Hopkins v. Gray, 245. 
V. R. R. Co., 274. 
V. Scott, 230. 
V. Ware, 173, 264. 
Hopkinson v. Forster, 209, 261, 
Hopkirk v. Page, 196. 
Hopley V. Dufresne, 168. 
Horn V. Nash, 20. 
Homblower v. Proud, 92. 
Homes. Rouquette, 203. 
Horst V. Wagner, 251. 
Hortsman s. Henshaw, 211, 212. 
Hosford V. Stone, 119. 
Hosstatter i>. Wilson, 274. 
Hough V. Barton, 147. 

V. Loring, 44, 50. 
Houghton u.,Baiik. 78. 
V. Ely, 217. 
V. Francis, 17. 
Houlditch V. Cauty, 194. 
Houle V. Baxter, 227. 
Housego ». Obwhe, 190, 194. 
Houston 1). Bfuner, 216, 
Hoveys. Sebring, 147. 
Howard v. Bank, 211. 

V. Boorman, 171. 
V. Duncan.' 90. 
V. Ives, 187. 
Howard Bank v. Carson 168. 
Howe, in re, 50. 

V. Bowes, 168. 
V. Bradley, 189. 
V. Wildes, 73. 
Howenstein v. Bai-nes, 17, 70. 
Howlandt). Carson, 46, 55. 
Howry v. Eppinger, 12, 100. 
Hoyt V. Jaflray, 20. 
Hubbard v. Chapin, 99. 
». Gurney, 65. 
0. Harrison, 17. 
f). Jackson, 135, 232. 
V. Matthews, 191. 
V. Moaely, 10, 28. 
Huffaker v. Bank, 164. 
Hughes*. Nelson, 115, 116. 
Hull V. Conover, 115. 
Humphreys v. Guillow, 249. 
Hunt V. Divine, 10, 272. 



TABLE OF CASES CITED. 



XXVU 



Hunt V. Gray, 253. 
Hunter v. Jeffery, 143. 

V. Wilson, 94. 
Huntington v. Finch, 254. 
Huntley v. Saunderson, 207, 259. 
Husband v. Epling, 27. 
Huse V. McDauiel, 255. 
Hussey v. Sibley, 224. 

«. Winslow, 272. 
Huston V. Young, 24. 
Hutton V. Ward, 213. 



Ilsley V. Jones, 204, 208. 
Indiana Bank ». Weekerly, 58. 
Ingham ». Primrose, 61, 143, 284, 

236, 240, 241. 
Ingram v. Forster, 154. 
Inman v. Clare, 12. 
lunes V. Munroe, 254. 
Irvine v. Adams, 65. 
V. Lowry, 13. 
Isbester, ex parte, 222. 
Ives ». Bank, 35, 245. 
Ivory V. Michael, 36, 248. 



Jaccard v. Anderson, 177. 
Jackson v. Collins, 202. . 

V. Hudson, 48, 216, 274. 

V. Richards, 185. 

V. Slipper, 217, 272. 
Jacobs, in re, 228, 245. 

V. Benson, 7. 
Jacobson v. Shanks, 107. 
Jacquin v. Warren, 272. 
Jafifray v. Brb-wn,. 216. 
Jameson v. Swinton, 186. 
Jarvis v. St. Croix Co., 187. 

■r. WOson, 48. 
.Jeffries o. Austin, 62. 
Jeffreys v. Agra Bank, 95. 
Jefts V. York, 84. 
Jenkins f. Schaub, 97. 

v. Tongue, 147.' 
Jenners v. Howard, 72. 
Jennings v. Roberts, 195. 
Jenny v. Herle, 11. 
Jewell 0. Parr, 2-31. 
John V. Bank, 186. 
Johnson, ex parte, 190. 

V. Bank, 248. 

V. Crane, 201. 

v. Carpenter, 274. 

V. Colkngs, 44. 

V. Heagan, 249. 

V. MitcheU, 125. 



Johnson v. Offiitt, 40. 

V. Robarts, 98. 

V. Smith, 83. 

V. Sutherland, 73. 

V. Way, 100. 
Joint Stock Co., in re, 228. 
Jones V. Bank, 42, 43, 46. 

V. Broadhm-st, 185, 144, 206, 

210, 215, 230, 231, 232, 
233 

V. Clark, 84, 87. 

V. Fales, 13. 

V. Port, 234. 

V. Gordon, 93, 100, 108, 
110, 111. 

V. Heiliger, 268. 

V. Hibbert, 105. 

V. Ireland, 254, 

V. Lane, 108. 

V. Look, 268. 

V. Peppercorn, 98. 

V. Radatz, 17. 

V. Ryde, 223. 

V. Shaw, 64. 

V. Simpson, 16. 
Jordan v. Tate, 28. 
Journey v. Pierce, 193. 
Judah V. Hari'is, 14. 
Julian V Sherbrooke, 50. 
Juniata Bank v. Hale, 179, 197, 

199. 
Jury V. Baker, 10, 68. 

K. 

Kaufman v. Barrlnger, 43. 
Kautzman v. Weir'.ck, 121. 
Kearney ^!. West Grenada Co., 89, 

41. 
Keams v. Durrell, 108. 
Keene v. Beard, 119, 215, 261. 

V. Keene, 213, 218, 219. 
KeUey v. Brooklyn, 12. 

V. Hemmingway,, 26, 27. 
- V. Whitney, 100, 137, 274. 
KeUogg V. Barton, 139. 

V. Curtis, 111. 
Kelly V. Solari, 238. 
Kelner v. Baxter, 82. 
Kemble v. Lull. 51. 
Kemp, ex parte, 95. 
■ V. Balls, 232. 
Kendal v. Wood, 236. 
Kendrick v. Lomax, 213, 254. 
Kennedy v. Carpenter, 258. 

V. Geddes, 44. 
Kenner v. Creditors, 46. 
Kennedy v. Nash, 247, 251. 



XXVlll 



TABLE OF CASES CITED. 



Kenworthy ». Sawyer, 245. 
Kephart v. Butcher, 222. 
Kermeyer v. Newby, 255. 
Kershaw v. Cox, 252. 
Keyes v. Fenstermaker, 276. 
Kibble, ex parte, 72. 
Kidder v. Kidder, 240. 
Kilbyu. Rochusson, 200. 
KHgore v. Bulkley, 33. 
Kilgour V. Finlayson, 88. 
Kimball v. Huntington, 272. 
Kinibro v. Bullitt, 85, 87. 
Kimmell v. Bittuer, 105. 
King V. Biokley, 192. 

V. Crowell, 162, 165, 185. 

V. Fleming. 28, 24. 

V. Hannah, 259. 

V Holmes, 165. 

v. Milsom, 110. 

V. Smith, 88. 

V. Zimmerman, 148. 
Kingsbury v. Butler, 25. 
Kingston, ex parte, 98. 

V. Long, 9. 
Kinney v. Flynn, 8. 
Kinyon v. Stanton, 265. 
Kirk V. Blurton, 77, 78, 88. 

V. Insurance Co., 14. 
Kirkman v. Bank, 59. 
Kirkpatrick v. Howk, 245. 
Kittle V. DeLamater, 188. 
Klaubere. Biggerstaff, 12, 18, 14, 

272. 
Hookenbaum v. Pierson, 194. 
Klosterman v. Loos, 85. 
Knapp V. Runals, 168, 200. 
Knecht V. U. S. Sav. Institution, 

267. 
Knight V. Clements, 253. 
Knights V. Putnam, 109. 
Knill V. Williams, 21, 248, 252. 
Knipper v. Chase, 274. 
Knott ». Venable, 176, 184. 
Knox V. Clifford, 24, 25, 65. 
KnoxviUe Bank *. Clark, 251, 
Kohler v. Smith, 19, 213. 
Kost V. Bender, 139. 
Kountz i>. Kennedy, 251. 
Kramer v. Sandford 198. 
Kuntz V. Tempel, 33. 
Kymer v. Laurie, 267. 



Lafitte V. Slatter, 196. 
Laing V. Barclay, 207. 

V. Stone, 212, 213, 219. 
Lamar v. Brown, 248. 



Lamb v. Matthews, 234. 
Lamon v. French, 50. 
Lanati v. Bayhi, 141. 
Lancaster Bank v. Taylor, 116. 

V. Woodward, 266, 267. 
Lancey v. Clark, 281, 
Land Credit Co., in re, 57, 81, 82. 
Landry v. Stansbuiy. 166. 
Lane v. Bank, 162, 179. 
V. Kreckle, 144, 277. 
V. Stacy, 134. 
Langenberger v. Kroger, 158, 251. 
Lansing v. Gaine, 23. 
Latter v. White. 59. 
Latouche v. Latouche, 92. 
Latourette v. Williams, 112. 
Law V. Pamell, 123, 144, 146. 
Lawrence v. American Bank, 237. 
- V. Bassett, 68. 

V. Dobvns, 126, 163. 

V. Fusseil, 130. 
Laws ». Rand, 264, 265. 
Lawson v. Bank. 186, 187. 
Lay V. Wissman, 98, 98. 
Lazarus j^. Cowie, 231. 
Lazell V. Lazell, 147. 
Lazier v. Horan, 171. 
Lea V. Bank, 271. 

V. Cassen, 102. 
Leach v. Hewitt, 197. 
Leadbitter v. Farrow, 76, 83. 
Leather v. Simpson, 106. 
Leavitt v. Putnam, 118, 138. 
Lebel v. Tucker, 70, 73, 217. 
Lecann v. Kirkman, 200. 
Ledwich v. McKim, 35, 59, 223. 
Lee V. Bank, 128, 130. 
V. Hayes, 102. 
V. Zagury, 140, 145, 254. 
Leeds Banking Co., in re, 5. 
Leftley v. MiUs, 136, 161, 174, 234. 
Legett V. Jones, 18. 
Legge V. Thorpe, 176. 
Lehman v. Jones, 167. 
Lenning v. Ralston, 39, 69. 
Lenox V. Cook, 156. 
Leonard v. Phillips, 250. 

V. Wilson, 78, 127, 177. 
LeRoy v. Crowninshield, 259. 
Lester v. Given, 209, 265. 
LevJeson v. Lane, 86. 
Lewis V. Kramer, 45. 

V. Lee, 73. 

V. Lyster, 254. 

V. Parker, 136. 

V. Reilly, 88. 

V. Tipton, 29. 



TABLE OF CASES CITED. 



XXIX 



Lewis V. Wilson, 274. 
Libbey v. Pierce, 203. 
Light V. Kingsbury, 159, 203. 
LiUey v. Miller, 168. 
Lincoln v. Hinzey, 57. 
Linderman v. Guldin, 190. 
Lindo V. Uns-worth, 185. 
Lindus v. Bradwell, 49, 74, 78. 

V. Melrose, 57. 
Linville v. Welch, 198. 
Litchfield Union v. Greene, 270. 
Lithgo V. Lyon, 212. 
Littaiier v. Goldman, 223. 
Littler. Bank, 13. 

V. Blunt, 257, 260. 
V. Slackford, 10. 
Liverpool Bank v. Walker, 83. 
Lloyd V. Ashby, 50. 
' V. Davies, 106. 
V. Howard, 62, 63, 108, 120, 

188 • 

V. Sigourney, 130, 131. 
Lobadie v. Chouteau, 20. 
LobdeU v. Baker, 223. 
Lockwood V. Crawford, 276. 
Logan V. Cassell, 98. 
V. Smith, 97. 
Lomas v. Bradshaw, 94. 
London Bank v. Lamprifire, 74. 
V. Roberts, 252. 
V. Walldnshaw,.230. 
Long V. Moore, 248. 
Loomist). Ruck, 108. 
Lord);. Hall, 79, 80. 
Loring v. Gurney, 25. 
Losee v. Dunkin, 276. 
Louisiana Bank v. Bank, 262 

_ V. EUeiy, 189. 
Lovejoy v. Bank, 62, 64. 
Lovell V. Hill, 9. 
Low V. Copestake, 146. 
Lowe V. Bliss, 18. 

V. Peskett, 239. 
Lowell V. Daniels, 73. 
Lowenthal, exports, 175, 192. 
Lowery v. Scott, 184. 
Lowry v. Steele, 127. 
Lucas V. Ladew, 30. 
LueUen v. JIare, 36. 
Luff V. Pope, 209. 
Lugrue V. Woodruff, 46.. 
Lumley v. Hudson, 254. 
V. Musgrave, 254. 
Lunt V. Adams, 160. 
V. Silver, 249. 
Luqueer v. Prosser, 272. 
Lyman v. Oalifer, 274. 



Lynch, ex parte, 72. 

Lynn v. Bank, 261. 

Lyon V. Maxwell, 231. 

Lyons v. Marshall, 8. 

Lysaghti). Bryant, 60, 161, 181, 185. 

M. 

M 'Arthur v. Bloom, 73. 
McArthur v McLeod, 118. 
McBroom v. Corporation, 8. 
McCaU V. Taylor, 4. 
McCartney v. Smalley, 13. 
McCloskey v. Ind. Union, 245. 
McCormiok v. Trotter, 13. 
McCramer v. Thompson, 63, 249. 
McCraiis V. How, 72. 
McCrum v. Corby, 97. 
McCutchen v. Rice, 43. 
McDonald, in re, 245. 

V. Elfes, 64. 

V. Scott, 205. 
McDowells. Goldsmith, 180. 
M'Evers v. Mason, 45. 
MoParland v. Pico, 31. 
M'Gee v. Prouty, 239. 
MoGrade v. Gferman Sav. Inst. 

209. 
McGregor v. Cleavelaind, 87. 

V. Rhodes, 218. 
M'Gruder v. Bank, 165. 
McGuinness v. Bligh, 250. 
McHenry v. Davies, 74. 
McHugh V. County, 90. 
McKenzie v. Durant, 31. 
McKewer v. Kirtland, 203. 
McKleroy v. Bank, 211. 
M'Lemore ■«. Powell, 245. 
McManus v. Bark, 65. 
McMurchey v. Robinson, 30. 
McNeilage v. HoUoway, 112, 113. 
McRaven v. Crisler, 252. 
McSherry o. Brooks, 138. 
McVeigh v. Allen, 202. 
McWUHams v. Bridges, 130. 
Mackay ». Judkins, 183, 198. 
Maoklin v. Crutoher, 78. 
Maclae v. Sutherland, 273. 
Maoleod v. Snee, 12. 
Magee v. Carmack, 224. 
Magruder v. McDonald, 21. 

V. Union Bank, 197. 
Maguire v. Dodd, 63, 130. 
Mahan v. Sherman, 65. 
i>. Waters, 171. 
Maher v. Overton, 84. 
Mahony «. East Holyford Co., 57, 
76. 



XXX 



TABLE OF CASES CITED. 



Maidens. Webster, 273. 
Maillard v. Argyle, 229. 

V. Page, 65, 254. 
Mainwaring v. Newman, 239. 
Maitland v. Bank, 98. 
Makepeace v. Moore, 113. 
Maiden Bank ». Baldwin, 34, 164, 

171. 
MaE V. Van Trees, 92. 
Manchester Bank v. Fellows, 187, 

258 
Mandeville v. Welch, 209, 
Maniort. v. Roberts, 144. 
Mpnley v. Boycot, 63. 
Manning v. McClure, 97. 
Mare v. Charles, 49, 67. 
Marine Bank ». City Bank, 262. 

V. Rushmore, 13. 
Markham v. Hazen, 49. 
Marrett v. Brackett, 255. 
MarshaU v. Mitchell, 198. 
Marston v. Allen, 132, 142. 
Martin v. Bacon, 44. 

V. Chauntry, 14. 

V. Ingersoll, 181. 

■,: Mayo 72. 

V. Morgan, 236. 

V. Zellerbach, 75. 
Marzetti v. Williams, 266. 
Mass. Bank I). Oliver, 190 
Massie v. Belford, 67. 
Massmans. Holsoher, 63. 
Mason v. Bradley, 249. 

V. Dousay, 39, 47, 68. 
Mason v. Franklin, 162. 

V. Morgan, 113. 

V. Pritchard, 184. 

V. Bumsey, 49. 
Master v. Miller, 248, 250. 
Masters v. Baretto, 271. 

V. Ibberson, 101 
Matteson v. Morris, 115. 
Mattison v. Marks, 17. 
Mather v. Maidstone, 92, 111, 238, 

254. 
Matthews v. Bloxome, 216. 
Matthey v. Gaily, 168. 
Mauney v. Coit, 161. 
Maxondoff, en: parte, 233. 
Maxwell ». Brain, 193, 194. 
Maxwell v. Tushill, 259. 
May V. Chapman, 101. 

t,. Kelly, 48. 
Mayer v. Jadis, 125. 

V. Mode, 23. 
Mayo V. Moore, 234. 
Mead v. Young, 89. 



Meads v. Bank, 262. 
Mears v. Graham, 16. 
Mechanics' Bank v. Bank, 161. 

V. Craw, 183. 

V. Griswold,. 197. 

V. Straiten, 6, 8. 

V. Valley P. Co. 129. 
Meggett V. Baum, 246. 
Megrath «. Gray, 145. 
Mehlberg v.. Fisher, 20, 22. 
Meikel v. Savings Inst., 254. 
Melledge v. Iron Co., 79. 
Mellen v. Moore, 84. 
Mellersh v. Rippen, 192. 
Mellish V. Rawdon, 151. 

V. Simeon, 170, 215, 219, 
"220. 
Melvin v. Hodges, 90. 
Mendenhall v. Gately, 68. 
Merchants' Bankw. Birch, 190. 

V. Eagle Bank, 287. 

V. Griswold, 44. 

«. N. B. Savings Inst. 110. 
, V, Spicer, 67, 121. 

V. State Bank, 261, 262. 
Meredith, ex parte, 81. 
Merriam v. Wolcott, 223. 
Merrick v. Boury, 253. 
Merrill, in re, 209. 
Merritt^. Cole, 274. 

V. Duncan, 100. 

V. Todd, 276. 
Metcalfe v. Richai-dson, 191, -195. 
Meyer v. Hibsher, 164. 

V. Huneke, 252. 
Michigan Bank v. Leavenworth, 

97. 
Michigan Ins. Co. v. Leavenworth, 

88. 
Miers V. Brown, 179, 180, 192. 
Miller v. Excelsior Stone Co., 26, 
27, 64. 

«. Finley, 249, 250. 

■0. Gilleland, 252. 

^. Miller, 116. 

K. Neihaas, 43. 

V. Thomson, 3. 

V. Weeks, 2, 271. 
MiUerd v. Thorn, 247. 
Mills V. Bank, 66, 191. 

V. Barber, 105, 110. 

V. Gibson, 201. 

V. Kuykendall, 11. 
MHnes v. Dawson, 96, 104. 

V. Duncan, 288. 
Minet v. Gibson, 8. 
Minor v. Bank, 82. 



TABLE OF CASES CITED. 



XXXI 



Mintum v. Fisher, 200, 261. 
Miser v. Trovinger, 167, 191. 
Mitehell V. Baring, 55, 164, 175. 

V. Byrne, 59. 

V. DeGrand, 31, 32, 47. 

0. Dickson, 113. 

V. Rice, 239. 

V. Smith, 121, 127. 
Mobley v. Clark, 167. 
Moffat V. Edwards, 29. 
Mohawk Bank v. Broderick, 265, 

267. 
Mobne, ex parte, 170, 185. 
Monmohunee v. Secretary, 122. 
Monnett v. Stiirges, 213. 
Monson v. Drakeley, 273. 
Montague v. Perkins, 36, 37, 257. 
Montelius v. Charles, 169. 
Montgomery v. Elliott, 171. 
Moody V. Threlkeld, 35. 
Moore i). Anderson, 8. 

V. Cross, 135. 

V. Hutchinson, 248, 250. 

V. Eyder, 97. 
Moreau v. Branson, 74. 
Moreland v. Lawrence, 213. 
Morey v. Wakefield, 276. 
Morford v. Davis, 218. 
Morgan v. Bank, 235. 

V. Davison, 160. 

V. Rowlands, 260. 
Morley v. Culverwell, 229, 233. 
Morrell v. Codding, 84. 
Morris v. Bethell, 80. 

V. Preston, 98, 123. 

V. Walker, 135. 
Morrison v. Bailey, 31, 66, 261. 

V. Buchanan, 150. 
Morse v. Earl, 113. 

V. Wheeler, 72. 
. Morton v. Naylor, 11, 13. 
Moses V. Trice, 148. 
Mott V. Hicks, 57, 74, 78, 85. 
Moule V. Brown, 222, 264. 
Mowbray, ex'parte, 115. 
Mowyer v. Cooper, 101. 
Moyei). Hemdon, 250. 
Meyer's Appeal, 176. 
Muir V. Crawford, 245. 
MulhaU ». NeviUe, 36. 
MuUer v. Pondir, 59. 
Muncy DLst. v. Commonwealth, 

159. 
Mungerw. Shannon, 11. 
Munn V. Baldwin, 183. 
Munroe v. Bordier, 94. 

v. Hoff, 222. 



Murdock v. Caruthers, 271. . 

V. Mills, 82. 
Murphy v. Lucas, 98. 
Murray v. East India Co., 8, 134, 
213, 259. 

V. Kin", 204. 

11. Lardner, 100, 111. 

V. Judah, 246. 
Murrill v. Handy, 15. 
Murrow v. Stuart, 67, 129. 
Musselman v. Oakes, 7. 
Musson V. Lake, 162. 
Mutford V. Walcot, 32. 47, 53. 
Mutty Loll V. Dfnt, 62. 
Mutual Ba,nk v. Rotge, 2G2. 
Myer v. Hart, 17. 
Myers v. Nell, 250. 

V. Standart, 51. 

N. 

Naglee v. Lyman 97. 
Nauce v. Lary, 35. 
Napier v. Schneider, 214. 
Nash V. Brown, 105. 

V. Nash, 112. 
Nat. Bank v. Bangs, 211, 233. 

V. Eyre, 254. 

V. Green, 203. 

V. Kirby, 137. 

V. McDonald, 85. 

V. N. B. Assn., 2-37, 23S. 

V. Texas, 138. 
Nat. Banking Co. v. Bank, 159. 
Nat. Park Bank v. North Bank, 

211, 237, 
Nazro v. Puller, 249. 
Neale u. Turton, 239, 271. 
Nelson v. Baik, 44, 45, ij. 

V. Potterall, 153. 

V. Serle, 21. 
Nevins v. Townsend, 276. 
Newberry v. IVowbridH?. 20D. 
Newcomb v. Raynor, 244. 
Newell V. Gregg, 137. 
Newhall v. Dunlop, 81. 
New Hope Co. v. Perry, 172. 
New "York Bank v. Selma I'ank, 

190, 196. 
New York Iron Mine r. Bank, 80. 
Newman v. Kettelle, 257. 
Newton v. Kinnerly, 213. 
Newton W. Co. v. Diers, 12, 205. 
NichoUs V. Diamond, 49. 
Nichols V. Pearson, 109. 

V. Gross, 145. 

V. Porter, 70. 
Nicholson v. Gouthit, 168. 



xxxu 



TABLE OF CASES CITED. 



Nicholson ». Revill, 249. 

V. Rickets, 78. 
Nickerson v. Ruger, 108, 110. 
Nixon V. Palmer, 82. 
Nightingales. Withington, 73, 277. 
Noel». Murray, 222. 
Nolan V. Bank, 262, 266: 
Norris v. Aylett, 254. 
North Bank v. Abbott, 164. 
North River Bankw. Aymar, 81, 82. 
North Stafford Co. v. Wythies, 200. 
Norton v. Bllam, 172, 257. 

i>. Seymour, 78, 
Norwich Bank v. Hyde, 15. 
Novelli V. Rossi, 241. 
Nowak ». Excelsior Stone Co. 22, 104. 
Noxon V. DeWolf, 1.36. 

V. Smith, 7, 145. 
Nunez V. Uantel, 29. 
Nunn, in re, 103, 105. 
Nurre v. Chittenden, 65, 

0. 

Oakley v. Oodeeq, 99. 
Gates V. Bank, 97, 109. 
Ocean Bank v. Fant, 206. 

V. "Williams, 39, 175. 
Oddie V. Rank, 237. 
Ogden V. Benas, 235. 
Ohm V. Young, 67. 
O'Keefe v. Dunn, 137, 138, 152, 228. 
OkeU V. Charles, 49. 
Okie V. Spencer, 244. 
Ontario Bank v. Lightbody, 224. 

V. Worthington, 45. 
O'Reilly v. Richardson, 82. 
O'Rourke v. O'Rourke, 24. 
Ord V. Portal, 146. 
Oridge V. Sherborne, 30. 
Oriental Bank, ex parte, 100, 140. 
Oriental Corp. v. Overend, 103, 244, 

246. 
Orr V. Bank, 211. 
Osborne v. Monoure, 31. 
Otisfield V. Mayberry, 206. 
Oulds V. Harrison, 106, 139. 
Outhwaite ;;. Luntly, 248. 
Outhwite V. Porter, 97. 
Overman v. Bank, 44, 46, 154. 

V. Oriental Corp., 65. 

V. Rouquette, 19. 
Owen V. Von ulster, 48. 
Owsley V. Greenwood, 213 



Pacific Bank v. Mitchell, 232. 
Packard 1). Lyon, 165. 



Page V. Danaher, 253. 

V. Gilbert, 192. 

V. Morreli, 35, 36. 
Paine v. Noelke, 217. 

V. Voorhees, 245. 
Palmer v. Bank, 124. 

V. GafSiner, 134. 

V. Hummer, 28. 

V. Pratt, 27. 

V. Sargent, 218, 249. 

V. Stephens, .57. 

V. Whitney. 135. 
Pannell v. McMechen, 245. 
Paramore v. LLnrlsey, 2.4. 
Pardee v. Fish, 272, 276. 
Parieh v. Stone, 117. 
Parker v. Burgess, 86, 90. 

V. Gordon, 160. 

V. Greele, 44, 45. 

V. Maeomber, 88. 

V. Middleton, 118, 119. 

V. Plymell, 17. 

v. Riddle, 217. 

v.. Tuttle, 275. 
Parks V. Ingram, 246. 
PaiT V. Jewell, 139, 140. 2.11. 
Parsons v. Jackson, 16, 100. 
Partridge v. Davis, 121. 
Pasmore «. North, 23. 
Pate V. Gray, 19. 
Patience v. lownloy, 169. 
Patrick v. Clay, 213. 

V. Harrison, 106. 
Patterson v. Carroll, 68. 

V. Graves, 7. 

V. Poiudexter, 272. 

V. Todd, 25, 203. 
Patton ». Shanklin. 2.50. 
Paul V. Joel, 192,- 193, 194. 
Peacock v. Puroell, 97, 93, 158, 161, 
180. 

V. Rhodes, 123. 
Pease v. Hirst, 96, 145. 
Peaslee v. Robbins, 277. . 
Pearse v. Pemberthy, 203. 
Pearson v. Crallan, 182. 

V. Garrett, 27. 
Pecker v. Sawyer, 138. 
Pence v. Gale, 245. 
Penkivil v. Connell, 273. 
Penny v. Innes, 217. 
Pentz V. Stanton, 77. 
Peoria R. R. Co. v. Neill, 211. 
Perkins v. Bank, 66. 

V. Cummings, 108, 
Perreira v. Jopp, 42. 
Perring v. Hone, 219. 



TABLE OF CASES CITED. 



XXXUl 



Perry v. Bigelow, 274. 
Peruvian Railway Co., in re, 74, 75. 
Peters V. Hobbs, 169. 
Peterson v. Hubbard, 44. 

V. Johnson, 107. 
Petillon V. Lorden, 4., 
Petit V. Benson, 51. 
Peto V. Reynolds, 4. 
Pettee v. Prout, 146. 
Petty V. Cooke, 104, 244, 246. 
Philadelphia Bank v. Newkirk, 18. 
Philipe V. Haberlee, 184. 
Phillips V. Astling, 168, 204. 

V. Franklin, 213. 

«).Gould, 195. 

V. Im Thum, 144, 212, 215, 
225 237 
Philpot V. Bryant, 159, 164, 210. 
Phinney v. Baldwin 68. 
Phipps V. Tanner, 15. 
Phipson V. Kellner, 126, 199. 
Phoenix Ins. Co. v. Allen, 152, 180. 
Pickin V. Graham, 200. 
Pioquet v. Curtis, 256. 
Pier». BuUis, 234. 

V. Heinrichshoflfen, 161. 
Pierce v. Burnham, 78. 

V. Gate, 168. 

V. Kittredge, 43. 

V. Pendar, 184. 

V. Strathers, 184. 
Pillans V. Van Mierop, 45. 
Pinard v. Klockman, 39. 
Pine V. Smith, 137. 
Piner v. Clary, 137. 
Pinkham v. Maoy, 27. 
Pinkney v. Hall, 121. 
Pinnes v. Ely, 122. 
Pinney v. McGregory, 134. 
Pitcher v. Barrows, 271. 
Pitman v. Kintner, 84. 
Planters' Bank v. Merritt, 264. 
Plato V. Reynolds, 153. 
Phmley v. Westley, 6, 118, 217. 
Plummer v. Lyman,, 44. 
Poirier v. Morris, 93, 95, 144. 
PolhillB.Walter, 82, 83.. 
Pollard ». Bank, 262. 

V. Bowen, 168, 176. 

. V. Herries, 18, 34, 163. 

«).Ogden, 2S2. 
Pooley V. Browne, 224. 

V. Driver, 79. 
Poorman v. Mills, 124, 275. 
Pope V. Bank, 262. 
V. Heath, 51. 
V. lann, 24. 
Porter v. Cushman, 125. 



Porterfield v. Butler, 73. 
Porthouse v. Parker, 196. 
Pott V. Clegg, 265, 267, 
Potter V. Brown, 228. 
Potts V. Eeed, 129, ISO. 
Powell V. Waters, 24. 
Power V. Finnie, 129. 
Powers V. Briggs, 77, 83. 

V. Lynch, 229. 
Prange, ex parte, 177, 188, 190. 
Pratheru. Young, 245. 
Pratt V. Bank, 78. 

V. Coman, 97. 

V. Hedden, 245. 
Pray v. Maine, 230. 
Prehn v. Royal Bank, 208. 
Prescott V. Flyn, 80. 
PrescottBank v. Caverly, 64, 74, 

151, 218. 
Preston v. Whitney, 14. 
Price, ex parte, 115. 

V. Dunlap, 147. 

V. McGoldrick, 183. 

V. Mitchell, 171. 

V. Neal, 237, 238. 

V. Taylor, 27. 
Prideaux v. Collier, 159. 

V. Criddle, 161, 188, 263. 
Prince v. Brunatte, 74. 

V. Oriental Bank, 188, 211, 
267. 
Protection Ins. Co. ». Bill, 27. 
Pruyn v. Milwaukee, 213. 
PuUen V. Chase, 213. 
Putnam v. Dike, 259. 

V. Sullivan, 35. 
Pryor v. Bowman, 151, 159. 

Q 
Quinby v. Merritt, 13. 

R 
R. V. Bartlett, 3. 
V. Box. 7. 
V. Elliott, 15, 16. 
V. Randal], 8. 
Rabey v. Gilbert, 201. 
Raefle v. Moore, 23. ■ • 

Ralli«. Dennistoun, 41, 229, 231, 

241. 
Eamohum v. Laohmeechund, 261, 
262. 
V. Radaki'-sen, 149, 151, 152, 
17!. 
Rand v. Dovey^ 2 15. 
Randall v. Moon, 230. 
Randolph v. Parish, 3. 
Ranger v. Gary, 186, 275. 



XXXIV 



TABLE OF CASES CITED. 



■Ranken v. Araro, 209. 
Ransom i\ Mack, 193. 
Raper v. Birkbeck, 241. 
Raphael v. Bank, 95, 98, 99, 111. 
Rawlinson v Stone, 113. 
Raymond v. Middleton, 217. 
Rayner, ex parte, 76. 
Read v. Adams, 156. 

V. Baflfalo, 11. 

V. Hutchinson, 222. 

V. Marsh, 45. ■ 

V. McNulty, 18. 
Reading v. Beardsley, 125. 
Redington v. Woods, 211. 
Redlich v. Boll, 36. 
Redman v. Adams, 12. 
Redmayne v. Burton, 60, 143. 
Redmond v. Stansbuiy, l33. 
Reed, ex parte, 232. 

V. Batchelder, 72. 

v.- Roark, 56. 

V. .Weutman, 108. 

V. Wiggins, 109. 

V. Wilson, 30, 03, 161. 
Reese v. Gordon, 107. 
Reeside v. Knox, 11. 
Reeves v. State Bank, 161. 
Reg. V. Watts, 269. 
Reid V. Purnival, 98. 

V. Morrison, 165, 195. 
Renner v. Bank, 147. 
Renss. Factory v. Reid, 213. 
Renwick v. Tighe, 183. 
RequaB. Collins, 184. 
Rew V. Pettit, ,83. 
Rex V. Hart., 37. 
Reynolds v. ChetUe, 163. 

V. Doyle, 225, 258. 
Rhett V. Poe, 196. 
Rhode V. Proctor, 190, 199. 
Rhodes, exparte, 115. 

V. Seymour, 276. 

V. Smethurst, 260. 
Rice V. Gove, 84. 

V. Riatt, 93. 

». Stearns, 129, 130. 
Rich V. Starbuck, 8. 
Richards v. Betzer, 107. 

V. Daily, 119. 

V. Darst, 59. 

V. Franklin, 121. 

V. Richards, 20, 64, 239, 257. 
Richardson v. Daily, 139. 

V. Elett, 20. 

V. Lincoln, 145. 

«. Martyr, 9. 

D. Richardson, 114. 



Ricketts v. Bennett, 87. '• 

Rickford v. Ridge, 180. 
Riddf. Moggridge, 273. 
Rideout v. Bristow, 21. 
Rider v. Taintor, 124. 
Riggs v. Lindsay, 207, 214.' 
Riley v. Dickens, 16. 
Rindge v. Kimball, 168. 
Rindskopf c. Doman, 200, 201. 
Ringo V. Biscoe. 19. 
Rittenhouse v. Ampierman, 83. 
River Steamer Co., in re, 260. 
Rivers o. Thomas, 216. 
Roach V. Thompson, 226. 
Robarts v. Tucker, 89, 90, 123, 

211, 212, 284, 235, 236, 267. 

exparte, 221. 

V. Bethell, 24, 47. 

V. Corbin, 207, 208, 209. 

V. Fisher, 224. 

V. Haskell, 222. 

V. Masters, 216. 

V. Place, 113. 

V. Taft, 184. 
Robertson v. Burdekhi, 6, 70. 

V. Kensington, 127. 

V. Smith, 227. 
Robey v. OUier, 209. 
Robins v. May, 9. 
Robinson v. Ames, 155. 

V. Hawksford, 264. 

.«. Hodgson, 111. 

V. Lair, 121. 

V. Reed, 249, 251. 

V. RejTiolds, 101, 105, 106. 

V. Smith, 97. 

V. WilHrison, 115. 

». Yarrow, 211. 
Robson V. Bennet, 262. 

V. Oliver, 173, 205, 222. 
Rock Co. Bank v. Hollister, 130. 
Rodgers v. Rosser, 25. 
B.odney v. Wilson, 64. 
Roehneri). Knickerbocker Tns. Co., 

.30. . . 

Rofiey '). Greenwell, 20, 27. 
Rogers v. Gallagher, 233. 

V. Larigford, 222. 

V. Miller, 147. 

V. Ware, 144. 
Rogerson v. Ladbroke, 267. 
Rollin V. Steward, 208. 
Rolls V. Pearce, 268. 
Rooker v. Moores, 127. 
Roosa V. Crist, 69. 
Root v. Cook. 110. 
' Rordunz v. Leach, 146. 



TABLE OF CASES CITED. 



XXXV 



Rosco-w V. Haxdy, 180. 
Rose V. Sims, 92. 

V. Williams, 246. 
Rosher v. Kieran, 182. 
Ross V. Doland, S8. 

' ■». Espy, 64. 
Rossiter v. Rossiter, 80. 
Rothschild ». Corney, 265. 

1). Gmrie, 169, 175, 176. 
Eouquette v. OYerman, 18, 33, 169, 

175, 214. 216. 
Rowe V. Tipper, 179, 187, 189, 203. 

V. Young, 60, 51, 52, 158, 170, 
- 171, 210, 
Rowley v. Ball, 147. 
Roxborough v. Messiok, 93, 97. 
Royce v. Bm:nes, 145. 
Roger 9. Bank, 97. 
RulPt). Webb, 10, 56. 
Rumball v. Bank, 13, 275. 
Russell V. Langstaffe, 37, 67. 

V. PhilUps, 47, 51. 

V. Powell, 11. , 

V. Swan, 114. ' 

i>. Whipple, 272. 
Ryan v. Chew, 93. 
Ryhiner v. Feickert, 134. 

S 

Sackett v. Palmer, 27. 
Salmon v. Webb, 61, 65. 
Salter v. Burt, 30, 33. 
Salt Spring Bank v. Burton, 160, 
Sanborn v. Neal, 85. 
Sanders v. McCarthy, 20, 29. 
Sanderson v. CoUman. 211. 
Sands v. Clarke, 167, 173. 
Sanford v. Mickles, 276. 
Saul V. Jones, 162, 167, 249. 
Saunderson v. Jackson, 57. 

V. Piper, 15, 16. 
Savage v. Aldren, 257. 

V. King, 74, 113. 
Savings Bank v. Shaffer, 248, 253. 
Sawyer v. Wiswell, 101, 254. 
Sayre v. Wheeler, 24, 25.' 
Scard v. Jackson, 85. 
Soarpelini v. Atcheson, 112, 259. 
Schi in melpennich v. Bayard, 53. 
Schmidt ®. Schmaelter, 57. 
Schneider v. Schiffmau, 216. 
Schnewind v. Hacket, ^48i 
Soholey v. Ramsbottom, 143, 236. 
Schroeder v. Bank, 209. 
Schryver v. Hawkes, 248. 
Schultz V. Astley, 35, 37, 133, 144, 
Schwarz v. Oppold, 248. 



Scollans v. Flynti, 108. 
Scott V. Lifford, 94, 103, 104. 
Soudder v. Union Bank, 43, 44, 68. 
Sea V. Glover, 29. 
Seacord ». Burling, 9. 
Sears v, Lantz, 121. 
Seaton d, Hinneman, 30. 
Seaver ». Lincoln, 276. 

V. Phelps, 72. 
Sebag ». Abithol, 157. 
Second Nat. Bank «. Gaylord, 205. 

». Williamsi 268. 
Security Bank v. Bank, 262, 
Segi'am V. Presoott, 108. 
Seibel v. Vaughan, 251. 
Seldonridge i>. Connable, 22. 
Seligman v, Huth, 62. 
Sentanoo c. Poole, 72. 
Serrel c. Railway Co., 265, 276. 
Seymour v. Mickey, 217. 
Shaffer v. Maddox, 167, 264. 
Shamokin Bank v. Street, 13. 
Shank v. Butsch, 56. 
Sharp, ex parte, 267. 

V. Bailey, 195. 
Sharpe v. Drew, 153. 
Shaw V. Reed, 162. 
Shaylor v. Mix, 183. 
Shedd V. Brett, 161, 183, 257, 258. 
Shelbume Bank v. Townsley, 184, 

187. 
Sheldon v. Horlon, 200. 
Shelton V. Braithwaite, 191, 202. 

V. Bruce, 27. 

«. GiU. 17. 

V. Parker, 114. 
Shepard v. Whetstone, 251. 
Shepherd v. Chamberlain, 161. 
Sheridan v. Carpenter, 238. 
Sherrington v. Jermyn, 24S, 251. 

V. Yates, 112, 113. 
Shirley v, Howard, 108. 
Shirts V. Oveijohn, 58. 
Shoemaker ». Bank, 183. 
Shreeves v. Allen, 100. 
Shriner v. Keller, 167. 
Shute». Robins, 151. 
Shuttleworth v. Stephens, 4. 
Sibree ». Tripp, 229, 272. 
Sice f. Cunningham, 276. 
Sichel ®, Birch, 59. 
Siffkiu V. Walker, 77. 
Sigersou ». Matthews, 199. 
Siggers v. Lewis, 170, 215, 219. 
Sigourney v. Clarke, 120. 

V. Lloyd, 129. 
Simon v. Cridland, 93. 



XXXVl 



TABLE OF CASES CITED. 



Simpson v. Pacific Insurance Co., 

• 158, 263. 
Simpson v. Stackhouse, 253. 
Simpson v. Turney, 189. 
Sinker v. Fletcher, 120, 217. 
Sistermans v. Field, 110. 
Sittig V. Birkestack, 85. 
Skelton v. Adams, 160. 

V. Dustin, 83, 64. 
Skilbeck v. Garbett, 183. 
SkiUman v. Titus, 266. 
Slawson v. Loring, 74, 77. 
Sleigh V. Sleigh, 103, 195, 225, 226. 
Sloman v. Cox, 254. 
Small V. Clewley, 110. 
Smalley v. Wright, 199, 271. 
Smead v. R. R. Co., 75, 76. 
Smith V. Allen, 272. ■ 

V. Bank, 258. 

V. Bartholomew, 240. 

V. Beoket, 199. 

V. BeUamy, 8, 155, 166, 197. 

«. Braine, 110. 

V. Brown, 207. 

V. Chester, 211. 

V. Clarke, 125. 

V. Clopton, 17. 

V. Curlee, 176. 

V. Janes, 265. 

V. Johnson, 76, 87. 

V. Kendall, 18, 31. 

V. Livingston, 111. 

V. Lockridge, 48, 250. 

V. Mace, 252. 

V. Marsack, '74, 113, 211. 

V. McClure, 6, 42, 148. 

V. Mead, 69. 

V. Mercer, 205, 237. 

V. MiUer, 158, 263, 264. 

V. Mullett, 186. 

«. Mundy, 60. 

V. Nightingale, 16. 

V. N. S. Wales Bank, 154, 
155, 173. 

V. Roach, 180. 

V. Sawyer, 242. 

V. Sheppard, 234. 

V. Smith, 92, 117, 248. 

V. Vertue, 48, 50, 172, 210. 

V. Whiting, 134. 
Smyth V. Strader, 86. 
Snaith v. Mingay, 269. 
Snee v. Prescott, 128. 
Snow V. Perkins, 192. 
Snyder v. VanDorers, 36. 
Soares ». Glyn, 7, 124, 127, 134. 
Soci^te Gfinfirale j). Bank, 39, 40, 
58, 103. 



Solarte v. Palmer, 179, 193, 194. 
Southall V. Rigg, 92, 254. 
Southard v. Porter, 116. 
Soward v. Palmer, 168, 254. 
Spalding v. Andrews, 43, 46, 107. 
Spear v. Pratt, 43. 
Spencer «. Bank, 198. 

V. Harvey, 197. 
Sperrys. Horr, 17. 

V. Spalding, 110. 
Spies V. GSmore, 167. 
Spindler v. Grellett, 171. 
Spitler V. James, 36, 37. 
Stacy V. Bank, 161. 

». Kemp, 107. 
Stafford V. Yates, 185. 
Stagg V. BUiott, 81, 82. 
Stainback v. Read, 81. 
Stalker V. M'Donald, 97. 
Stanton v. Blossom, 182. 
Starr v. Torrey, 106. 
Startup V. Maodonald, 153, 160. 
State V. Gates, 265. 

V. Stratton, 248. 
State Bank v. Fearing, 218. 

V. Slaughter, 191. 
State Fire Ins. Co. in re, 221. 
Steele v. Oswego Co., 275. 
Stein V. Passmore, 216. 

V. Tglesias, 139. 
Steman v. Harrison, 45, 46. 
Stephens v. Bank, 22, 75. 

V. Graham, 248. 

V. Thoinpson, 255. 
Stephenson v. Dickson, 186. 
Stevens v. Beals, 74. 

V. Blunt, 28. 

V. Campbell, 107. 

V. O'Neal, 126. 

V. Park, 2')5, 

v. Wood, 24. 
Stewart V. Anderson, 63. 

V. Bank, 251. 

V. Hidden, 239. 

V. Kennett, 181. 

1). Smith, 264. 
StillweU V. Aaron, 247. 
Stix ». Matthews, 68, 189. 
St. John V. Roberts, 203. 
St. Louis Ins. Co. v. Homer, 65. 
Stocken v. Collin, 182. 
Stockman v. Parr, 191. 
StockweU V. Bramble, 46. 
Stoddard ». Penniman, 249, 251. 
Stone V. Butt, 146. 

V. Metcalfe, 67. 
Stoneman v. Pyle, 17. 
Storm V. Stirling, 5. 



TABLE OF CASES CITED. 



XXX vu 



Stotts V. Byers, 97. 
Stowell V. Raymond, 216. 
Straohan v. Muxlow, 65. 
Straker v. Graham, 151, 152, 173. 
Stratton v. Matthews, 226. 
Strawbridge v. Eobinson, 38. 
Streeter ». Fort Bank, 185. 
Strong V. Foster, 104, 281. 

V. King, 30, 151. 
Struthers v. Kendall, 164. 
Stuckert v. Anderson, 161. 
Stults V. Silva, 17, 28. 
Sturdivant v. Hull, 65. 
Sturdy v. Henderson, 32. 
Sturges V. Bank, 43. 

V. Crowninshield, 228. 
Sturtevant v. Ford, 105, 139. 
Summers v. City Bank, 208. 
Suse V. Pompe, 18, 64, 66, 217,219, 

220, i221. 
Sussex Bank v. Baldwin, 165. 
Sutton V. Toomer, 248, 253. 
Swan, ex parte, 103, 139, 242, 243. 
V. Cox, 50. 

e. N. B. Australasian Co., 
99, 117, 123. 
Swannell v. Watson, 58. 
Swartz V. Eediield, 159. 
Swasey v. Vanderheyden, 72. 
Sweeney v. Easter, 129, 1.30. 
Sweeting p. Halse, 241. 
Sweetser v. French, 16, 86, 217. 
Swetland v. Creigh, 13. 
Swift V. Stevens, 147. 

V. Tyson, 93, 97. 
Swinyard v. Bowes, 205. 
Swope V. Ross, 44, S3, 233. 
Sylvester ». Downer, 216. 

T 

Taddiken ». Cantrell, 249. 
Talbot V. Bank, 165. 
Talcott, ex parte, 233. ^ 
Tappan v. Bailey, 87. 

V. Ely, 10, 127. 
Tarleton v. Shingler, 247. 
Tai-pley v. McWhorter, 234. 
Tassel ». Lewis, 174. 
Tate V. Hilbert, 116, 267, 268. 
Taylor, ex parte, 233. 

V. Atkinson, 58. 

V. Curry, 10, 66. 

V. Dobbin, 56. 

V. French, 64, 198, 200. 

V. Jones, 201. 

V. Shelton, 85. 

V. Sip, 267. 

V. Snyder, 163, 165. 



Temple «. Fallen, 86, 37. 
Terry v. AUis, 97. 

V. Parker, 167. 
Tevis V. Young, 4. 
Thacherti. Stevens, 216. 
Thackrayt). Blackett, 195, 199- 
Thayer v. King, 147. 
Thiclmesse v. Bromilow, 87, 218. 
Thiedman v. Goldsmidt, 98. 
Third Nat. Bank v. Ashworth, 201. 

V. Clark, 64. 
Thomas v. Fenton, 231. 

V. Thomas, 105. 
Thompson v. Bowne, 245. 
V. Clubley, 22, 105. 
V. Shepherd, 104. 
V. Sloan, 12, 18. 
V. Williams, 191. 
Thornton v. Maynard, 145, 233. 

V. Wynn, 201. 
Thorp V. Craig, 38. 
Thorpe v. Combes, 257. 
Thurman v. Van Brunt, 21. 
Ticknor v. Branch Bank, 213. 
Tidmarsh v. Grover, 249. 
Timmins v. Gibbins, 223, 224. 
Timms v. Delisle, 184. 
Todd V. Lee, 74. 

V. Shelburne, 98. 
Tolman v. Hanrahan, 49. 
Tombeokbee Bank v. Dumell, 48. 
Tomenyc. Bank, 184. 
Tomhnson v. Kinsella, 275, 276. 
Tohdeur, ex parte, 155. 
Tooke V. Newman, 98. 
Toomer v. Rutland, 35. 37, 249. 
Tootell, ex parte, 29. 
Torrance v. Bank, 2.54. 
Torrey «. Foss, 148, 195. 
Totum V. Catomore, 253. 
Tower v. Bank, 148. 

V. Richardson, 64. 
Towne v. Rice, 12, 17, 69, 109, 274. 
Townsend v. Derby, 20, 102. 
V. France, -37. 

B. Lorain Bank, 192, 198, 
* 194. 

V. Star Co., 249. 
Townsends v. Bank, 224. 
Townsley v. Sumrall, 152. 
Trafiford v. Hall, 139. 
Trammell v. Henderson, 219. 
Trask v. Martin, 30. 
Treacher v. Hinton, 203. 
Treat v. Cooper, 14. 
«. Smith, 245. 
TremontBank, ex parte, 199. 
Treuttel v. Barandon, 120, 130, 131. 



XXXVlll 



TABLE OF CASES CITED. 



Trieber v. Bant, 24, 25. 
Trigg V. Taylor; 236. 
Triggs V. Newnham, 160. 
Trimby v. Vignier, 70. 
Trowbridge v. Cushman, 78. 
Troy Bank 4). Lauinan, 51, 162. 
> > Trueman v. Penton,' 92. 

». Loder, 78. 
Trust Company v. Bank, 97, 99, 

■ 121. 
Trusteesu.HiU, 96, 97. 
Tucker v. Ronk, 92. 

V. Tucker, 25, 147. 
Tucker Manufacturing Co. p. Pair- 
banks, 65, 84. , , 
Turner v. Keller, 218. 

V. Leach, 181, 189, 201. 

V. R. R. Co., 11. 

V. Rogers, 92. 
Turner v. Samson, 167, 196. 

». Stones, 205v 223. 
Tuttle V. Bartholomew, 121, 

V. Standish, 1,47. 
Twpgood, ex parte, 62, 98. 

XS 

TJbsdell V. Cunningham, ?9. 
Ulster Bank v. McParland, 45. 
Union Bank v. Cooley, 245. 

V. Middlebrook, 90. 

V. Oceana Bank, 209. 

V. Roberts, 249. 

V. Uncferhill, 86. 

V. WiEis, 166, 216. 
' United States v. Bank, 67. 

V. Spaulding, 251. 
United States Bank v. Georgia 

Bank, 238. 
Usher v. Dauncey, 23, 38. *' 



Valentine v. HoUoman, 8. 

Valk V. Gaillard, 190. 

Vr.Uey Bank v. Meyers, 246. 

Vance v. Lowther, 248. 

Van Brunt v. Vaughan, 183. 

Van Duzer v. Howe, 35. 

Van Etta v. Evenson, 35. 

Van Raugh w.Van Arsdaln, 228, 229. 

Van Vechten, «. Pruyn, 182. 

Van Wart v. WoUey, 222. 

Vamer v. Nobleborough, 255. 

Vater v. Lewis, 7. 

Vaughan v. Halliday, 209. 

Veal V. Veal, 116. 

Veazie Bank u. Winn, 31, 268, 265. 

Vermilye v. Adams, 274. 

Vernon v. Hankey, 267. 



Viale v. Michael, 181, 190, 195. 
Vielie v. Osgood, 57. 
Vincent v. Horlock, 77, 124. 
Vinton v. King. 137. 

V. Peck, 25, 93. 
Vogle V. Ripper, 252. 
Voftz v. Harris, 205. 
Voorhies v. Atlee. 168. 
Von Windisch v. Klaus, 108. 

W 

Wackerbath, ea; ^arte, 53, 177. 
Wade V. Wade, 65. 

V. Withington, 250. 
Wait V. Pomeroy, 249. 
Waithman v. Elsee, 272. 
Walbridge v. Han'onJ 92. 
Walker p. Bank, 51, 52, 82, 157, 
194. 

v. Barnps. 219. 

«. Hamilton. 20S. 

V. Macdonald, 124, 133, 161, 
234. 

V. Eogerfj, 2ril. 

V. Stetson, 149, 198. 

jr. Wait, 271. 
Wallace ». Agry, 151. 

V. Bank. 81 

v. Crilley. 165. 

». Jewell,' '249, 273. 

V. M'Connell. 171, 172. 
Walters. Cubley, i.i9. 

V. James, 231. 
Walters v. Bro'TO, 183, 186. 
Walton V. Hastings, 248. 

V. Mascak, 170, 172, 204, 
210. 

u; Williams, 48. 
Walsh V. Blatchley, 40, 41, 156. 

I'.Dart., 151, 159. 
Wamesit Bank v. Battrick, 189. 
Ward V. Allen, 43, 211. 

V. Evans, 222. 

V. Morrison, 213. 

V. Wick, 245. 
Wardens v. Moore, 3. 
Warner ». Iron Co., 172. 
Warren v. Chapman, 108. 

u. Haight, 140. 

«. Scott, 6. 
Warren Bank v. Bank, 161. 
Warrington v. Early, 18, 248. 
Warwick?). Nairn, 107.' 

ii; Rogers, 241. 
Washband v. Washband, 20, 26. 
Washington Bank v. Ecky, 218. 
Watei-vhet Bank v. Wljite, 133. 
Watkins v. Figg, 257. 



TABLE OF CASES CITED. 



XXXIX 



Watkins r. Halstead, 73. 

V. Maule, 115. 
Wati-ous V. Holbrook, 4. 
Watson V. Chesire, 126, 218. 
V. Evans, 7, 134. 
V. Flanagan, 94. 
V. Poague, 246. 
V. Russell, 61, 94, 102, 106 
V. Tarpley, 1,56. 
Watt V. Eiddle, 214. 
Way V. Bassett, 2-57. 
». Smith, 17, 28. 
V. Sperry, 92. 
Wears v. Gove, 82. 
AVeaver », Fries, 64. 
V. Penn", 190. 
Webb r. Pairmaner, 80. 
Webber v. Maddooks, 247,251. 
Webster ». Kirk, 258. 
Weddigen v. Boston P. Co., 255. 
Wedlake v. Harley, 129, 131. 
Wegersloffew. Keene, 51. 
Weinstock v. Bellwood, 209. 
Welch V. Allingtou, 254 ■ 

i>. B. C. MTg. Co., 195. 
V. Goodwin, 237, 238. 
Wells V. Brigham, 6, 12. 
V. Hopkins, 106. 
». Sehoonover, 144. 
V. Whitehead. 40. 
Welsh V. Bank, 89. 
Welton V. Adams, 147. 
Wenman ».• Insurance Co., 257, 

West V. Brown, 165, 186. 

■p. Foreman, 11. 
West Bank v. Fulmer, 196. 
West Boston Bajik v. Thompson, 

loi). 

WestfaUiJ. Braley, 224. 
Westgate ». Healy, 8. 
Westminister Bank v. Wheaton, 

Weston V. Hight, 117. 
Wefchey v. Andrews, 276. 
Wharton v. Wright, 190. 
Whatley v. Tricker, 240. 
Wheat V. Kendall, 246, 247. 
Wheeler v. Field, 165. 
V. Guild, 234. 
V. Johnson, 144. 
V. Warner, 257. 
V. Webster, 50, 67. 
1). Wheeler, 114. 
Wheelook »."Preeman, 249, 252. 
Whistler I). Porster, 98, 99, 107 
115, 116, 117. ' 

Whitakers. Bank, 160, 266. 



Whitlook V. Underwood, 25. 
Whitmore v. Niokerson, 35, 63, 

Whitney v. Dutch, 72. 
i>. Snow, 85. 
V. Snyder, 68. 
Whittaker v. Kuhn, 116. 
Whitworth v. A'dams, 247. 
White, ex parte, 252. 
White V. Continental National 

Bank, 211, 238. 
White V. Heylman, 118. 
V. North, 272, 2;3. 
V. R. R. Co., 275. 
V. Richmond, 13. 
V. Smith, 35, 29. 
. V. Stoddard, 'l69, 182. 
Whitehead?;. Walker, 52, l.:6 157 
175,176,181,215,256,267. ' 
Whitesides v. Bank, 249 
Widoe V. Webb, 108. 
Wienholt v. Spitta, 108. 
Wiff'en V. Roberts, 159. 
Wilbur V. Jemegan, 254 
Wilcox V. Routh, 190. 
Wilde V. Ai-msby, 253. 

V. Keep, 78. 
Wilders v. Stevens, 135. 
Wilkins v. Jadis, 159, 160. 
Wilkinson v. Johnston, 125, 237, 

Wilkinson «.-. Simson, 228, 230. 

V. Stonev, 90. 
Wilks V. Hoi-nby, 103. 
Willans V. Ayers, 3, 219, 220. 
Willeson V. Patteson, 72. 
Willett V. Shepard, 253. 
Williams r. Baker, 19. 
V. Bank, 198. 
V. Bayley. 89, 90. 
V. Germaine, 32, 54, 55, 178, 
224. 
Williams v. Institution, 218. 
V. James, 144, 232 
D. Matthews, 185. 
V. Robns. 77. 
v. Smith, 186. 
V. Winans, 46. 
Williamson r. Johnson, 88, 133 

■V. Watts, 72. 
Willis V. Bank, 100. 

V. Barrett, 7, 133. 
i>. Cressv, 122. 
Willis V. Green, 191. 
Willoughby v. Moulton, 57. 
Wilniot V. Williams, 163. 
Wilson t. Clements, 44. 
V. Porder, 86. 



xl 



TABLE OF CASES CITED. 



Wason V. Holmes, 128, 130, 131. 

V. Senier, 197, 198. 
Wnton V. Eaton, 92. 
Wiiiohell V. Crider, 58. 
Windham Bank v. Norton, 159, 

161, 169, 188. 
Windle v. Andrew, 176, 218. 
Winship v. Bank, 86. 
Wintermute v. Post, 50. 
Winters v. Insurance Co., 104 
Wirth i>. Austin, 167, 195. 
Wise V. Charlton, 274. 
Wiseman v. Baston, 85. 
Wisner v. Bardwell, 108. 
Witte V. Williams, 135, 239. 
Wood V. Bank,.98. 

V. Connop, 146. 

V. Corl, 30. 

V. McMeans, 257. 

V. Pugh, 243. 

V. Steele, 248, 251. 

V. Surrells 64, 158. 
Woodbury »."Crum, 197. 

V. Woodbury, 80. 
Woodcock V. Houldsworth, 183. 
Woodland v. Fear, 223, 267. 
Woodman ». Boothby, 232. 
Woodruff V. Bank, 66, 261. 

V. Moore, 256, 258. 

V. Munroe, 90. 

V. Plant, 263. 
Woodward v. Genet, 272. 

V. Pell, 141, 206, 229, 232, 
233. 
Woodvorth v. Huntoon, 101. 
Woods V. Dean, 200. 

V. North, 17. 

V. Thiedeman, 238. 

V. Wilder, 72. 

V. Woods, 231. 
Wookey v. Pole, 117. 
Woolen V. Ulrich, 14, 15, 28. 

V. Vankirk, 104. 



Wooley V. Sergeant, 9. 
Woolfolk V. Bank, 248. 
Woolsey v. Crawford, 214. 
Wooten V. Maultsby, 141. 
Worcester Bank v. Bank, 61, 100. 

V. Wells, 45. 
Worden v. Dodge, 11. 
'Works V. Hershey, 29. 
Worley V. Harrison, 30. 
Worrall v. Gheen, 250, 
Wright V. Brosseau, 86. 

V. Flynn, 58. 

V. Hart, 13. 

V. Maidstone, 147, 148, 206. 

V. Shawcross, 187. 

V. Wright, 147. 
Wyatfc V. Evins, 92. 
Wyer v. Bank, 111. " 
Wyld, ex parte, 242, 243. 
Wyman v. Adams, 166, 185, 197, 

276. 
Wynen v. Schappert, 183, 188. 
Wynn v. Alden, 193. 
Wynne v. Jackson, 68. 

«. Raikes, 42, 43, 47. 



Tale V. Dederer, 74. 
Yates, ex parte, 122, 215. 

V. Dalton, 87. 
Yates V. Hoppe, 225. 

V. Nash, 8. 
Yeaton v. Burney, 171. 
Yglesiast). Bank, 241, 245.' 
Yorkshire Banking Co. v. Beatson, 

49. 
Young V. Glover, 122, 216. 
Young V. Grote, 236. 

V. Shroner, 139. 
Youngs V. Stahelin, 222. 

Z 

Zimmerman v. Anderson, 14, 15. 



TABLE OF ENGLISH CASES OVERRULED, 
DOUBTED, OR EXPLAINED 



Allen V. Kemble (1848), 6 Moore, P. 0. 314, qualified Rou- 
quette v. Overman (1875), 10 L. R. Q. B. at 540. 

Austin V. Bunyard (1865), 6 B. & 6. 687, discussed Gatty?j. Fry 
(1877), 2 L. R. Ex. D. at 267. 

Bacon v. Searles (1788), 1 H. Bl. 88, explained Jones v. Broad- 
hurst (1850), 9 C. B. at 185. 

Banbury v. Lisset (1774), 2 Stra. 1211, overruled Griffin v. 
Weatherby (1868), 3 L. R. Q. B. at 759. 

Beck V. Robley (1774), 1 H. Bl. 89, explained Jones v. Broad- 
hurst (1850), 9 C. B. at 185. 

Bickerdike v. Bollmann (1787), regretted Carter v. Flower 
(1847), 16 M. & W. at 748. 

Birmingham Bank, £Jx parte (1 868), 3 L. R. Ch. 651, comment- 
ed on lie London Bank (1871), 6 L. R. Ch. at 209. 

Bloxam, £Jx parte (1801), 6 Ves. 449, doubted He Gomersall 
(1875), 1 L. R. Ch. D. 137, see at 142. 

Boulcott V. Woolcott (1847), 16 M. & W. 584, explained Morris 
V. Walker (1850), 15 Q. B. at 599. 

Boulton V. Walsh (1807), 3 Bing. N. C. 688, overruled Lewis 
V. Gompertz (1840), 6 M. & W. at 403. 

Britten v. Webb (1834), 2 B. & C. 483, commented on Morris 
V. Walker (1850), 15 Q. B. at 599. 

Brown v. Davies (1789), 3 T. R. 90, overruled Ex parte Swan 
(1868), 6 L. R. Eq. at 358. 

Cameron «. Smith (1819), 2 B. & Aid. 305, commented on Laing 

V. Stone (1828), 2 M. & Ry. at 563. 
Castrique v. Buttigieg (1855), 10 Moore, P. 0. 115, explained 

Abrey v. Crux (1869), 5 L. R. C. P. at 42. 
Catton 'v. Simpson (1838), 8 A. & E. 136, overruled Aldous v. 

Cornwell (1868), 3 L. R. Q. B. at 578. 
Charles v. Marsden (1808), 1 Taunt. 324, commented on Parr 

V. Jewell (1855), 16 C. B. at 713. 
(xli) 



xlii TABLE OF CASES OVEBRULED. DOUBTED, ETC. 

Collinridge v. Farquharson (1816), 1 Stark. 259, commented on 

Oulds V. Harrison (1854), 10 Exch. at 578. 
Columbies v. Slim (im), 2 Chittv R. 637, explained Deutcrs 

V. Townsend (1864), 33 L. J. ,Q. B. at 304. _ 
Cramlington v. Evans (1687), 1 Strow. 4, explained Sigourney 

V. Llovd (1838), 8 B. & 0. at 631. 
Crofts V. Beal (1851), 20 L. J. C. P. 186, commented on Currie 

V. Misa (1875), 10 L. R. Ex. at 164. 
Crouch V. Credit Foncier (1872), 8 L, R. Q. B. 3'74, explained 

and qualified Goo'lwin «. Robarts (1875), 10 L. R. Ex. at 

355, and 1 L. R. Ap. Ca. at 494. 

De Berdt v. Atkinson (1794), 2 H. Bl. 336, overruled Maltass v 

Siddle (1859), 38 L. J. C. P. 258. 
De la Chaumette v. Bank of England (1829), 9 B. & C. 208, 

explained Currie v. Misa (1875), 10 L. R. Ex. at 164. 
Down V. Hailing (1835), 4 B. & C. 330, dissented from Bank 

of Bengal v. Maoleod (1849), 5 Moore I. A. 1. 

B'light V. Maclean (1846), 16 M. & "W. 51, explained Hooper v. 

Williams (1848), 2 Exch. at 19. 
Frith V. Forbes (18,i6),4 DeG. F. & J. 409, explained Ex parte 

Arbuthnot (1870), 3 L. R. Ch. D. 477: 

Gibbon v. Scott (1817), 3 Stark. 286, explained Maillard v. 
Page (1870), 5 L. R. Ex. at 318. 

Gill V. Cubitt (1826), 3 B. & C. 466, dissented from Bank of 
Bengal v. Macleod (1849), 5 Moore I. A. 1. 

Goodall V. Wray (1835), 4 Dowl. 76, explained Whitehead v. 
Walker (1843), 10 M. & W. at 698. 

Goupy «. Harden (1816), 7 Taunt. 159, explained Castrique v. 
Buttigieg (1865), 10 Moore P. C. at 115. 

Graham Mx parte (1856), 5 DeG. M. & G. 356, overruled Ori- 
ental Corp. V. Overend (1871), 7 L. R. Ch. at 153. 

Gray v. Milner (1819), 8 Taunt. 739, explained Peto v. Rey- 
nolds (1854), 9 Exch. at 415. 

Ingham v. Primrose (1859), 7 C. B. N. S. 83, disSented from 
Baxendale v. Bennet (1878), 3 L. R. Q. B. D. at 532. 

Johnson v. Kennion (1765), 3 Wils. 263, discussed Cook v. Lis- 
ter (1863), 32 L. J. 0. P. at 127. 

Jones V. Broadhurst (1850), 9 C. B. 173, qualified Cook v. leister 
(1863), 32 L. J. C. P. at 136; discussed Thorntons. May- 
nard (1875), 10 L. R. 0. P. at 698. 

Jones V. Lane (1839), 3 Y. & C. 333, overruled Deuters v. Town- 
send (1864), 33 L. J. Q. B. at 304. 

Keane v. Beard (1860), 8 C. B. N. S. 381, qualified Hopkinson 
V. Walker (1874), 19 L. R. Eq. 76. 



TABLE OF CASES OVERRULED, DOUBTED, ETC. xliii 

Kirk «. Blurton (1841), '9 M. &, W. 284, doubted Forbes « 
Marshall (1855), 11 Exch. at 180. 

Lambert, £Jx parte (1794), 13 Ves. 179, overruled £Jx parte 

Swan (1868), 6 L. R. Eq. at 358. 
Lefevre v. Lloyd (1814), 5 Taunt. 749, explained Castrique v. 

Buttigieg (1855), 10 Moore P. 0. at 115. 
Lewis ?j. Reilly (1841), 1 Q. B. 349j discussed "Lindley on 

Partnership," 3rd ed. p. 423. 

MoNeilage v. Holloway (1818), 1 B. & Aid. 133, qualified Hart 

V. Stephens (1845), 6 Q. B. at 943. 
Marsh rt. Newell (1808), 1 Taunt. 109, explained Deuters u. 

Townsend (1864), 33 L. J. Q. B. at 304. 
Mertens v. Winnington (1794), 1 Esp. 113, doubted JSx parte 

Wyld .(I860), 2 DeG. F. & J. at 650. 
Musgrave v. Drake (1843), 5 Q. B. 185, dissented from Hogg 

V. Skeen (1865), 18 C. B. N. S. at 426. 

Napier v. Schneider' (1810), 12 East, 420, dssented from lie 
Gen. South Amer. Co. (1877), 7 L. R. Oh. D. at 644. 

Oulds V. Harrison (1854), 10 Exch. 572, explained lie Anglo- 
Greek Co; (1869), 4 L. R. Oh. at 177. 

Parry v. Nicholson (1845), 13 M. & W. 778, doubted Hirsoh- 

mann v. Budd (1873), 8 L. R. Ex. Ch. at 172. 
Partridge v. Bank of England (1848), 9 Q. B. 396, qualified 

Goodwin V. Robarts (1875), 10 L. R. Ex. at 354. 
Phillips V. Astling (1809), 2 Taunt. 206, explained Hitchcock 

V. Humphrey (1843), 5 M. & Gr. at 564. 
Pike V. Street (1824), M. & M. 226, explained Foster v. Jolly 

(1835), 1 C. M. & R. at 708. 

Randall v. Moon (1852), 21 L. J. C. P. 226, explained Cook v. 
Lister (1863), 32 L. J. C. P. at 124, 127. 

Reg. V. Hawkes (1840), 2 Moore, C. C. 295, overruled Peto v. 
Reynolds (1854), 9 Exch. at 415. 

Reid V. Furnival (1833), 1 Cr. & M. 538, discussed Cook v. Lis- 
ter (1863), 32 L. J. 0. P. at 127. 

Rideout v. Bristow (1830), 1 Cr. & J. 231, discussed Nelson v. 
Serle (1838), 4 M. & W. at 799. 

Robarts v. Tucker (1850), 16 Q. B. 560, discussed ^Voods v. 
Thiedemann (1862), 1 H. & C. at 495. 

Rothschild v. Game (1841), 1 Q. B. 43, doubted Allen v. Kem- 
ble (1848), 6 Moore P. C. at 323, explained and qualified 
Home V. Rouquette (1878), 3 L. R. Q. B. D. at 521, 523. 

Sainsbury v. Parkinson (1860), 18 L. T. N. S. 198, explained 
Ancona v. Marks (1862), 7 H. & N. at 686, 

r 



Xiiv TABLE OF CASES OVERRULED, DOUBTED, ETC. 

Soholey V. Welsby (1797), Peake, N. P. C. 34, doubted Phillips 

V. Warren (1845), 14 M. & W. 380. 
Smith V. Mercer (1815), 6 Taunt. 76, discussed Wilkinson v. 

Johnson (1824), 3 B. & C. at 437. 
Solarte v. Palmer (1834), 1 Bing. N. 0. 194, regretted Everard 

«. Watson (1853), 1 E. & B. at 804; qualified Paul v. Joel 

(1858), 27 L. J. Ex. at 384. 
Strange v. Price (1839), 10 A. & E. 125, overruled Paul v. Joel 

(1858), 27 L. J. Ex. at 383. 
Strong V. Foster (1855), 17 C. B. 201, dissented from Ewin «. 

Lancaster (1865), 6 B. & S. at 576. 

Tindal v. Brown (1786), 1 T. R. 167, overruled Chapman v. 

Keane (1835), 3 A. & E. at 197. 
Tinson v. Francis (1807), 1 Camp. 19, dissented frooj Ex parte 

Swan (1868), 6 L. R. Eq. at 358. 
Trimby v. Vignier (1834), 1 Bing. N. C. 151, explained and 

discussed Bradlaugh v. De Rin (1870), 6 L. R. C. P. 473. 

Vanderwall v. Tyrrell (1827), M. & M. 87, explained Geralopulo 
V. Wieler (1851), 20 L. J. C. P. at 108. 

Walker ii. Barnes (1813), 5 Taunt. 240, dissented from Siggers 

V. Lewis (1834), 1 Cr. M. & R. at 370. 
Walwyn v. St. Quentin (1803), 1 B. & P. 652, overruled Cory 

V. Scott (1820), 3 B. & Aid. 622. 
Waring, Ex parte {ISlb), 19 Ves. 345, explained Vaughan v. 

Holiday (1874), 9 L. R. Ch. 561, and Me Yglesias (1875), 

10 L. R. Ch.,635. 
Woolsey v. Crawford (1810), 2 Camp. 445, dissented from Re 

General South American Company (1877), 7 L. R. Ch. D. 

at 644. 

Young w.Grote (1827), 4 Bing. 254, discussed Arnold v. 
Cheque Bank (1876), 1 L. R. C. P. D. at 586; and Baxen- 
dale V. Bennet (1878^. 3 L. R. Q. B. D. at 533. 



CONTENTS. 



CHAPTER I. PAGE 

FOEM AND InTEEPEETATION 1 

CHAPTER II. 

Capacity and Authority op Parties .... 71 

CHAPTER III. 

CONSIDEEATION • . 93 

CHAPTER IV. 
Teanspeb 112 

CHAPTER V. 
Duties oi" the Holdee ....>. 149 

CHAPTER VI. 

Liabilities of Parties 207 

CHAPTER VII. 

DiSOHAEGES 237 

CHAPTER VIII, 

Limitation op Actions 256 

CHAPTER IX. 
Provisions Peculiar to Checks .... 261 

CHAPTER X. 
Peotisions Peculiae to Peomissoey Notes . . 270 

(slv) 



LIST OF ABBREVIATIONS. 



Bigelow — Bigelow on Bills. 2nd edition. 1880. 
Byles— Byles on Bills of Exchange. 12th edition. 1876. 
Chitty— Chitty on Bills of Exchange. 11th edition. 1878. 
Daniel — Daniel on Negotiable Instruments. New York. 2nd 

edition. 1879. 
French Code — French Code de Commerce of 1818. 
German Exchange Law — German General Exchange Law of 

1849. 
Lindley — Lindley on Partnership. 3rd edition. 
Nouguier — Nouguier's "Lettres de Change. et Effets de Com- 
merce." Paris. 4th edition. 1875. 
Pothier — Pothier, Traite' du Contrat de Change. Paris. 1847. 
Story — Story's Commentary on the Law of Bills of Exchange. 
4th edition. 1860. 

(xlvii) 



A DIGEST 



OP THE LAW OF 



BILLS OF EXCHANGE. 



CHAPTER I. 

FORM AND INTERPRETATION OF BILLS. 

[Explanatory Head Note. — The term "Bill," as used in the 
axtioles of this Digest, includes, mutatis mutandis, Promissory 
Note and Check as well as Bill of Exphange. When a provision 
does not apply equal!:? to Notes and Checks, the full expression 
" Bill of Exchange " is used. See Introd. p. iv. and head note ' 
to Chaps. IX and X.] 

Art. 1. A Bill of Exchange is an unconditional |5j^^°^,,gg 
order in writing for the payment of a sum of money, ^'^^^'i- 
absolutely and at all events. 

Note. — A Bill of Exchange is. frequently called a " Draft." 
By English law no particular form of words is requisite to its 
validity (Art. 10), and it need not necessarily be negotiable 
(Art. 8) ; therefore negotiability, its chief characteristic, does 
not enter into the definition. By German Exchange Law, 
Art. 4, a bill must expressly mention that it is a Bill of Ex- 
change. Subjoined are two common forms : 

Form 1. — Inland Bill. 

No. 10. $100. 

Chicago, III., January 1st, 1870. 
Three months after date pay to our order the sum of 
one hundred dollars. 

Value received. Andeeavs & Co. 

To Messrs. Brown & Sons, Chicago, 111. 



2 BILLS OF EXCHANGE, [aet. 2, 

c "aVge If: Form 2.-Fobeign Bill. 

*"'='^- No. 10. Exchange for £100. 

Calcutta, 1st January, 1870. 
Six months after sight of this First of Exchange (Sec- 
ond and Third unpaid), pay to the order of Mr. John Charles, 
one hundred pounds. 

Value received, and charge the same to account of Messrs. 
Smith & Co., against your letter of credit. No. 1. 

James Andeews. 
To Mr. J. Brown, London, 



Parties. 
Necessary par- j^j.]. £. There tiiust, in point of form , be ttree par- 
ties to a Bill of Exchange in its origin, and two at 
least of these must be different persons, They are — 
(1.) The party who gives the order, called the 

drawer. 
(2.) The party on whom the order is given, called 
the drawee. If the drawee duly signify his 
assent thereto, he is called the acceptor, and. 
becomes the principal debtor on the bill. 
(3.) The party in whose fevor the order is given, 

called the payee. 
ExplaTiation 1. — ^The drawer and payee may be the 
same person, i. e., a bill may be drawn payable to the 
drawer, or his order.-^ 

Explanation 2. — A bill may be payable to the or- 
der of the drawee, if he act in two different capacities.^ 

Illusteation. 

B. is in business on his own account. He is also agent for 
X. A bill is drawn on B. as agent for X., payable to his order 
on his own account. He accepts and , indorses it. This is a 
valid bill. 

^Bullery. Cripps (1704), 1 Salk. 130 : Miller v. Weeks (1853), 22 Pa. 
St. 89 ; German Exchange Law, Art, 6. 
'Holdsworth v. Hukter (1830), 10 B. & C. 449. 



APTS 2-3.] FORM AND INTERPRET ATION. 

Note. — ^It is clear that the instrument is not a bill, which J^IJi^^f^ 
cannot be enforced until it is indorsed away : Cf. M. v. Bart- 
lett (1841), 3 M. & R. 303. Hence if a person draw a bill on 
himself payable to his own order, it is a nullity until trans- 
ferred.* 

Explanation 3. — ^If the drawer and drawee be the 

same person, or if the drawee be a fictitious person, 

the holder may treat the instrument, at his option, 

cither as a Bill of Exchange duly accepted by him, 

or as a note.^ 

Illttstbatidns. , 

1. A. & Co. carry on business in London and Liverpool. 
The London house draw a bill on the Liverpool house. The 
holder may treat it as a note made by the London house paya- 
ble in Liverpool ; and if it be not paid, the omission to give 
notice of dishonor to the London house is immaterial.* 

2. A. draws a bill on B. and negotiates it to 0.; B. is a fic- 
titious person. C. may treat the bill as a note made by A. He 
need not prove presentment or give notice of dishonor.^ 

3. The directors of a joint stock company draw a bill in the 
name of the company, addressed " To the Cashier." The 
holder may treat it as a note by the company.' 

4. A. draws on his agent in favor of C. C. may treat the 
instrument as the note of the principal.' 

NoTB.^Cf. Art. 139. Fictitious payee or indorser. As to 
notes, see Arts. 373, 374 and 386, note. 

Art. 3. " Holder " means the person in possession Holder. 
of a bill, who by the Law Merchant is entitled to en- 
force the payment thereof It includes equally payee, 
indorsee, or bearer. 

' Randolph v. Parish (1839), 9 Port. (Ala ) 76 ; Commonwealth v. But- 
tenck (1868), 100 Mass. 12. 

' Miller v. Thomson (1841), S M. & Gr. 576 : Fairchild v. R'ti Co fl 8571 
15 N. Y. 337 ; Of . German Exchange Law, Art. 6. ^ 

»Id.; Cf. WiUansy. Ay era (1877), 8 L. R. Ap. Ca. 133, P. C' 

* Smith V. Bellamy (1817), 2 Stark. 223. 

''Allen V. Sea Assurance Co. (1850), 9 C. B. 574 ; Chicago R R Co v 
West (1871), 37 Ind. at 216 ; Hasey v. White P. B. S. Co. (1843)' 1 
Doug. (Mich.) 193. ' 

f Wardens v. Moore (1848), 1 Ind. 289 ; Hardy t. Pilcher (1879) 57 
mss. 18. ' 



BILLS OF EXCHANGE. 



Faets 4-5. 



Holder. 



Signature of 
drawer. 



Designation of 
drawee. 



Note. — Cf. Art. 125. Holder and de facto holder distin- 
guished. 

Art. 4. A Bill of Excliange must be signed by 
the drawer.^ Cf. Art. 49. 

Explanation. — The drawer's signature may be 
added at any time, but until it is there the instrument 
is inchoate and without effect (Art. 23). - ' 

Illusteatios. 
A. draws a bill on B., payable to drawer's order, but does 
not sign it. B. accepts, and it is transferred for value to C. 
The instrument is neither a bill nor a note.' 

NoTE.^If a bill payable to drawer's order were indexed by 
the drawer, though not signed by him on the face, this would 
probably be sufficient. It Is so in France : N'ouguier, §199; 
Cf. Art.33. 

Art. 5. The drawee must be designated in a Bill 
of Exchange with reasonable certainty.* 
Illitstbations. 

1. Instrument in'the form of a bill, but addressed " To , 

Mobile, Ala." This is not a bill.* 

I 3. Instrument in the form of a bill payable to drawer's order, 
not containing the name of a drawee, but expressed to be pay- 
able '.'at No. 1 X. Street, London." B., who lives there, ac- 
cepts it. This is a bill, and B. is liable as acceptor.' 

3. Instrument in the form of a bill. Where the address to 
the drawee should be, are the words " at Messrs. B. & Co." 
This is a bill addressed to B. & Co." 

' Tevis V. Young (1858) 1 Mete. (Ky.) 199 ; Cf. Etx parte Hayward 
(1871), 6 L. R. Ch. 546 ; German Exchange Law, Art. 4 : Ncmguier, 
§§ 87, 88. 

2 Id ; MeCall v. Taylor (1865), 34 L. J. C. P. 365 ; Cf. Goldsmid v. 
Harnpton (1858), 5 C. B. N. S. 94 ; Hogarth v. Latham (1878), 3 L. R. 
Q. B. D. 6.43. 

3 Cf. PeWv. Reynolds (1854), 9 Exoh. 410; 11 Exch. 418; tx. Ch.; 
Almy V. Winslow (1879), 126 Mass. 342 ; Prenoh 'Code. Art 110 ; Ger- 
man Exchange Law, Afife 4. 

" Watrous v. Holbrom (1873), 39 Tex. 572 ; PetOY. Reynolds, supra; 
Petillon T. Lorden (1877), 86 111. 361 ; Cf. also, Ai-ts; 37,'58. 
' Gray v. Milner (1818), 8 Ttant. 739. 
« Shuttleworth v. Stephens (1808), 1 Camp. 407. 



ARTS 6-7-8.] FORM AND- INTEBPHETATION. 5 

4. Instrumont in the form of a bill addressed "To Str. X. J^esigiwtion of 
and owners," is accepted by the agent of the owner, B. B. is 
liable as acceptor.' 

Note. The question in Illustr. 3 has arisen also in Scotland 
and France, and has been decided in the same way : Thomp- 
son, p. 46 ; JSiouguier, § 131. A check in this form would 
probibly be invalid, for the uncertainty could not be cured by 
acceptance : Of. Art. 3 as to a Fictitious Drawee. 

Art. 6. A Bill of Exchange may be addressed to several 

, , ., drawees. 

two or more drawees, jointly, whether partners or not. 

Note. — Can there be an alternative drawee? In Anon. 
(1701), 13 Mod. 446, a bill addressed to "B., or in his absence 
to X.," was accepted by B., and was held good. But, as far as 
appears, X. may have been an ordinary Case of need. An 
alternative drawee seems to make the p yoruncertain: CL Fer- 
ris V. Bond (1831), 4 B. & Aid. 679, as to construction of a 
note signed in alternative. 

Art. 7. A Bill of Exchange .may designate one orcaseofnec.i. 
more persons in addition to the drawee, to be resorted 
to for acceptance or payment in case of need. *. e., in 
the event of the bill being dishonored by the drawee.* 

Note. — Such person is called the drawee or referee in case 
of need, or simply the Case of need. The practice of desig- 
nating a case of need is not common in America. According 
to French law the Case of need (besoin or recommandataire) 
must reside where the bill is payable (Kouguier, § 344 ; and 
of. German Exchange Law, Art. 56) ; but this is not the case 
in England : see the language of 6 & 7 Will. 4, c. 58. A 
•bill on Liverpool often names a Case of need in London : 'Cf. 
Art. 133. Indorser may name Case of need. Art. 184. Pre- 
sentment to Case of need. 

Art. 8. A bill may be expressed to be payable to to whom 

, . 1 . 1 , . , payable.. 

a person therein designated, or to his order, or to 
bearer.* 

' Alabama C. M. Co. v. Brainard (1860), 35 Ala. 476. 
= Cf. Marnier v. Steele (1849), 4 Exch. at 13 Ex. Ch. 
» Cf. lie Leeds Banking Co. (1865), 1 L. R. Eq, 1, and 6 & 7 Will. 4, 
c 68 ; Prenoh Code, Art. 173 ; German Exchange Law, Art. 62. 
* Cf. Storm V. Stirling (1854), 2 E. & B, at 842. 



S BILLS OF EXCHANGE. [akt. 8. 

Co whom IliUSTEATIONS. 

1. Pay C. — Pay the trustees of the X. Chapel. — Pay to 
bearer C." 

2. Pay C. or order — Pay to the order of C. 

3. Pay to bearer. — Pay to ship " Fortune," or bearer.' 

Pay or bearer.' Pay to bills payable or order.* Pay 

to order." 

Explanation L — A bill drawn payable to a partic- 
ular person simply, without the addition of the words 
" or order," " or bearer," or their equivalents, is valid 
inter partes, but not negotiable.^ 

NoTB. — But in Conn, a non-negotiable bill does not import 
a consideration unless expressed to be " for value received." ' 
I By French Code, Art. 110, a bill must be payable to order. A 

bill payable to bearer or to a particular person simply would 
be invalid. By German Exchange Law, Art. 4, the payee 
must be named. In Scotland, a bill is negotiable unless words 
prohibiting negotiation are used, e.g., " Pay C. only ;" Robert- 
son V. Burdekin (1843), 1 Ross L. C, 824. German Exchange 
Law, Art. 9, is to tie same effect. 

Explanation 2. — ^A bill drawn payable to tbe order 
of a particular person is payable to him or his order .^ 

Illustkation'. 

Bill drawn thus, " Pay to the order of C." C. can enforce pay- 
ment to himself without indorsing it.° 

Note. — But a bill payable "to bearer C." is not payable to • 
C. or bearer. It is not negotiable.'" ' 

' Warren v. Scott (1871), 32 la. 22. 

» Grant v. Vaughan (1764), 3 Burr. 1516 ; Ellis v. Wheeler (1825), 3 
Pick. (Mass.) 18. 

3 Cf. Ilaussoulliery. Hartsmck (1798), 7 T. R.733. ' 

< Mechanics' Banlcv. Straiton (1867), 3 Abbott's N. T. Ap. 269. 

<■ Davega v. Moore (1826), 3 McCord L. (S. C.) 482. 

« Plimleii V. Westly (1835), 2 Bing. (N. C.) at 251 ; Wells v. Brig- 
ham. (1850) 6 Cush, (Mass.) 6 ; -Qorhett v. CUrh (1878), 45 Wis. 403. 

■■ Bristol V. Warner (1848), 19 Conn. 7. 

» Smith V. McClure (1804), 5 East. 476 j cf. Harvey v. Cane (1876), 
34 L. T. N. S. 64. 

Id.; Durgin v. Bartol (1874), 64 Me. 473. 

10 Warren v. Scott (1871), 32 la. 22. 



AET. 9.] FORM AND INTERPRETATION. 

Art. 9. The payee of a bill, not payable to bearer, be^^^rsm"" 
must be an existing person capable of being ascer^ ""*'*' 
tained and identified at the time it is issued.-"- 

Explanation 1. — Extrinsic evidence is admissible 
to identify the payee when misnamed, or when desig- 
nated by description only, but not to explain away an 
uncertainty patent on the bill.^ 

iLLrSTEATION-g. 

The following are valid : 

1. Pay to C, D. and E., or the order of any two of them.' 

2. Pay C. or his agent. — Pay the trustees of the X. Society, 
or their treasurer for the time being. — Pay C. or his wife.* 

3. Pay to C, the treasurer for the time being of the X. Com- ' 
pany.= 

4. " Pay on demand to the cashier of the X. bank." Evi- 
dence is admissible to show that (H. was cashier of the X. bank 
when the bill was issued." 

5. " Pay to the administrator of X., deceased." Evidence 
is admissible to sliow that 0. was administrator of X. when the 
bill was issued." ' 

C. "Pay on demand, value received of C," which in tffjct is, 
" Pay to C. on demand.'' ' 

.7. " Pay to J. Smythe." Evidence is admissible to show that 
T. 'Smith is the person intended to be described thereby." 

' Cowie v. Sterling (1856), 6 E. & B. 333, Ex. Ch.; Adams v. King C 

(18-54), 16 111. 169. 

'' Soarez v. Glyn (1845) 8 Q. B. 24, Ex. Ch.; Mtisselman v. Oakes 
(1857), 19 111. 81. 

■■> Watson V. Evans (1868), 32 L. J. Ex. 137. 

" Holmes v. Jaques (1866), 1 L. E. Q. B. 376 ; Bourdm v. Green- 
irood (1871), 13 L. R. Eq. 281 ; Noxon v. Smith (1879) 127 Mass. 485: 
Gautes v. Hibbard (1869) '5 Biss. (C. Ct.) 99. 

* R. V. Box (1815), 6 Taunt. 825 ; Vater v. Lewis (1871), 86 Ind. 
288. 

* Commercial Bank v. French (1839), 21 Pick. (Mass.) 486 ; Soarez 
V. Glvn, supra. 

' Adams v. King (1854), 16 111. 169. 
Z' Green v. Davies (1825) 4 B. & 0. 235; Pothier de Change, n. 31. 

» Willis V. Barrett (1816), 2 Stark. 29 ; Jacobs v. Benson (1855), oO 
Me. 132 ; Patterson v. Orai-es (1841), 5 Blackf. (Ind.) 593. 



8 BILLS OF EXCHANGE. [_AET. 9 

Payee mrat 8. Pay to «' bills payable Or Order " — "St. Bt. X. and owfl- 

be person m !i „ t • x » i 

esse. ers " — " I promise to pay you." 

The following are invalid : 

' 9. " Pay C. or D.,"" there being no apparent community of 

interest. 

10. Six months after date, pay to the treasurer for the 
time being of the C. institution.' 

11. " Pay — • — or order." Evidence is inadmissible to 
show that C. was intended to be the payee.* 

12. " Pay to the estate of X., deceased." » 

13. " Pay on demand," stating no payee.* 

Explanation 2. — If the payee of a bill be a ficti- 
tious or noii-existing person, no title can be made 
thereto except by estoppel (Art. 139). 

JSxception. — ^If a bill be made payable to a de- 
.eeased person in ignorance of his death, his executors 
or administrators may adopt the transaction. 

. Illusteatiox. 

A. in England draws a bill on B., payable to C, who is in 
India. At the time' the bill is drawn C. is dead, but the fact is 
not known to A. C.'s administrator m,iy sue A. on the bill.' 

Note.— The New York Draft Code, § 1726, enacts that a bill 
payable to the order of an obviously fictitious person is to be 
deemed payable to bearer. 

' Mechanics' Bank v. Straiton (1867), 3 Abbott's N. T. Ap. 269 ; 
Moore v. Anderson (1856), 8 Ind. 18 ; Kinney v. Flynn ( ), 2 R. I. 
319. 

■' Blackenhngen v. Blundell (1819), 8 B. & Aid. 417; Carpenter v. 
Fanisu'orth (1871), 106 Mass. 561. But Cf. WestgaU v. Healy (1857), 
4 B. 1. 523. 

■'Coiviev. Sterling (1856), 6 B. & B. 333, Ex. Ch.; Yates v. Nash 
(1860), 29 L. J. C. P. 306; Cf. lUustr. 4, supi-a. But Cf. McBroom v. 
Corporation (1869), 31 Ind. 268. 

■" R. v. Randall (1811), Russ & R. 193. See Art. 28. 

^ Lyons v. Marshall (1851), 11 Barb. (N. Y.) at 248; Hendricks v. 
Thornton (1871), 45 Ala. at 302. 

^Minet,v. GibSon (1791), 1 H. Bl. at 608; Richr. Starhuck (1875), 51 
Ind. 87; Douglass v. Wilkeson (1831) 6 Wend. 637. 

' Murray, v. East India Co. (1821) 5 B. & Aid. 204. But Cf. Valen- 
tine Y. Holloman (1869) 63 N. C. 475. 



AET. 10.] FORM AND INTMRPBETATION. 

Order to Drawee. 

Art. 10. The order to the drawee may be in any order to 
form of words, provided it be an unconditional requi- 
sition for the payment of money absolutely and at all 
events.'- 

Illustrations 

The following are valid, though unusual : 

1. " Credit- C. or order with $100 in cash.'" 

2. " Pay, or cause to be paid, to C. or order, 8100.'" 

The following are invalid, as being conditional : 

3. Pay C. or order $100, provided the terms mentioned in 

my letter be complied with.* 

4. " " to stand as a set-off for the sum 

bequeathed to me above the 
share of X." 

5. ■ " " to be held as collateral security for 

the payment of the money owed 
him by X. if he cannot realize 
the other securities.' 

6. " " in consideration that he will aban- 

don the action now pending.' 

7. " " not to be demanded in the event of 

my death.* 

8. Note payable to order in usual form, but written in the 
margin, " Given as collateral security with agreement.'" 

^Dawhes v. VeLorane (1771), 3 Wils. at 218; Cooh v. Satterlee 
(1826), 6 Cow. (N. Y.) 108 ; GilUlaM v. Myers (1863), 31 Dl. 525. 

■'Ellison V. ColUngridge (1850), 9 C. B. 670. But Of. Wooley v. Ser- 
geant (1826), 3 Halst. (N. J.) 262. 

^Lorell T. Hill (1838), 6 C. & P. 238. 

' Kingston v. Long (1784), 4 Dougl; 9 ; Cf. Baird v. Underwood 
(1874), 74 111. 176 ; CooUdge v. Euggles (1819), 15 Mass. 387. 

5 Clarke v. Percival (1831), 2 B. & Ad. 660. 

^Bobins V. May (1839), 11 A. & B. 213; Haskell v. Lamhert (1860), 
16 Gray (Mass.) 592. 

' Druri/ V. Macavlay (1846), 16 M. & W. 146 ; Hays v. Gwin (1862), 
19 Ind. 19. Aliter, if consideration be executed. 

Uiichardson v. Martyr (1855), 25 L. T. Q. B. 64 ; Cf. Seacordv. Bur- 
Ung (1848), 5 Den. (N. Y.) 444. 

» Costelo V. Crou-ell (1879), 127 Mass. 293 ; Cf. Fitchhurg Sav. Bank 
V. Bice (1878), 124 Mass. 72. 



* 



10 BILLS OF EXCHANGE. Taet. 10 

drawee? ^^® following are valid : 

9. Pay C. or order $100, " as per memorandum of agree- 
ment." ' 

10- Pay C. or order 8100, " on return of this receipt.'" 

Note. — Cf., Art. 13 and Art, 19. As to construction, Cf. 
Art. 56. Comparing bills with notes, the order to the drawee 
when accepted corresponds with the promise by the maker. 
It is the same contract stated conversely. There is, however, 
this distinction : A bill may not be drawn conditionally, and 
a note may not be made conditionally ; but a bill may be 
accepted conditionally; therefore the liability of the principal 
debtor on a bill may be conditional, while the liability of the 
principal debtor on a note must be absolute. A bill absolute 
in form may be delivered conditionally. Art. 55. And a note 
has been held valid although at the time of making, an indorse- 
ment thereon made its payment conditional, on the ground 
that the indorsement was no part of the note.' If payment 
is conditional, thei nstrument is not merely non-negotiable; 
it is not a bill, and is not entitled to grace or presumption of 
consideration.* 

Explanation 1. — The direction must be imperative, 
not permissive or precative ; but the insertion of mere 
terms of courtesy will not make it precative. 

Illustrations. 

1. " Mr. B. will much oblige Mr. A.by paying C. or order." — 
Valid.= 

3. " Please let the bearer have $100. I will arrange i't with 
you this noon."-^Valid.° 

3. " Please let bearer have $100, and you will much oblige 
me." — Invalid.' 

' Jwry V. Baker (1858), E. & B. & E. 459 ; Cf. Taylor y. CwrrvilSlI), 
109 Mass. 36. 

^Franh^. Wessels (1876), 64 N.T. 155 ; Hunt v. Divine (1865), 37 
lU. 137 ; Cf. Hubbard v. Moseley (1858), 11 Gray (Mass.) 170, not in 
conflict. 

» Tappan v. Ely (1836), 15 "Wend. (N. Y.) 362. 

^Conover v. Stillwell (1869), 34 N. J. L. 54: DeForest v. Frary 
(1826), 6 Cow. (N. t.) 151. 

« RuffY. Webb (1794), 1 Esp. 129, Lord Kenyon. 

« Biesenthall v. Williams (1864), 1 Duv. (Ky.) 329. 

' TAttle V. Slaekford (1828), 1 M. & M. 171. 



ART. 10.] FORM AND INTERPRETATION. 11 

4. " We authorize you to pay 0. or order." — Invalid.' drfwce° 

Explanation 2. — An order to pay out of a particu- 
lar fund does not constitute a bill ; but an absolute 
order to pay, coupled with (1) a direction to the 
drawee to reimburse bimself out of a particular fund, 
or (2) a statement of the transaction which gave rise 
to the bill, is valid. 

iLLUSTEATIOIfS. 

The following orders or promises are invalid : 
1. Pay C. or order $100 out of the money in your hands be- 
longing to the X Company.^ 
3. " " out of the money due from X. as 

soon as you receive it.' 

3. " « " out of the money arising from my 

reversion when sold.* 

4. " " on the sale or produce when sold of 

the X. hotel." 
0. " " and deduct the same from my share 

of the partnership profits." 

6. " " the demand I have against the estate 

of X., deceased.' 

7. Bill drawn on a public oflScer, though in terms abso- 
lute.' 

1 Hamilton v. SpoUiswoode (1849), 4 Exch. 200 ; and Cf. Russell v. 
Powell (1845), 14 M. & W. 418. Each case must be determined on its 
merits. Test question is — Does the language show an intention to 
assume the liability of the drawer of a biU? 

2 Jenn'^ v. Herle (1723), 2 Ld. Raym. 1361 ; Cf. Turner v. R. R. Co. ■ 
(1880), 95 lU. 134. 

2 Dawhes v. DeLorane (1771), 3 Wils. 287 ; Mills v. Kuykendall 
(1827), 2 Blackf. (Ind.) 47. 

•« Cfarlos V. Fancourt (1794), 5 T. R. 482, Ex. Ch.;' Worden Y.Dodg^ 
(1847), 4 Den. (N. Y.) 159. 

* Hill V. Halford (1801), 2 B. & P. 413, Ex. Ch. 

« Munger v. Shannon (1874), 61 N. Y. 251 ; Cf. Ehrichs v. DeMill 
(1878), 75 N. Y. 370. 

' West V. Foreman (1852), 21 Ala. 400 ; Morton v. Naylor (1841), 1 
Hill (N. Y.) 583. 

8 -Reeside v. Knox (1837), 2 Whart. (Pa.) 233 ; East Township 
yr. Ryan (1878), 86 Pa. St. 459; Read v. Buffalo (1877), 67 Barb. 
526. 



12 BILLS OF EXCHANGE. [aet. 10. 

Order to Tji^ followinff are valid : 

drawee. ° 

8. Pay C. or order $100, as my quarterly half-pay due 1st 

February by advance.* 

9. « " and take the same out of our share 

of the grain.'' 

10. " " being a portion of a value as under, 

deposited in security for the pay- 
ment hereof.' 

11. « " against cotton, per " Swallow." * 

12. " " on account of moneys advanced by 

me for the X. Company.' 

13. " " against credit No. 20, and place it 

to account, as advised per X. & 
Co.« 

Note. — The sufficiency of the fund referred to is immaterial. 
An order invalid as a bill may be valid as an equitable assign- 
ment.' • 

Explanation 3. — The order must require the pay- 
ment of money-* 

Illusteations. 

The following are not bills : 

1. An order for the delivery to bearer on demand of a certain 
quantity of iron.' 

> Maeleod v. Snee (1728), 2 Stra. 762 ; Cf. Wells v. Brigham (1850), 
6 Gush. Masa. 6. 

» Corbett v. Clark (1878), 45 Wis. 403 ; Cf. Redman v. Adams (1863), 
51 Me. 429. 

' Haussmt^Uer v. Hartsinch (1.798) 7 T. R, 783,5 ;Cf. Towne v. Rice 
(1877), 122 Mags. 67 ; Howry'sr. Eppinger (18K), 34 Mich. 29 : Newton 
W. Co. V. Diers (1880), 10 Neb. ^C 

* Cf. Innum v. Clare (1858), Johns. 769. 

■■ Griffin V. Weatherhy (1868), 3 L. R. 4 B. 753. 
• • Cf. Banner v. Johnston (1871), 5 L. E. itt. L. 157 : Kelley v. Brooklyn 
(1843), 4 Hill (N. Y.) 263. 

■< First Nat. Bank v. Dubuque S. W. R. Co. (1879), 52 la. ; Glyn v. 
Hood (1860), 1 Dea. F. & J. at 348 ; Grant v. Wood (1858), 12 Gray 
■ (Mass.) 220. 

* Klauber v. Biggerstaf (1879), 47 . Wis. 551 ; Thompson v. Sloan 
(1840), 23 Wend. (N. T.) 71 ; Black v. Ward (1^3), 27 Mieh. 

»'Dixon V. Bomll (1856), 3 Macq. H. L. 1. 



AET. 10 FORM AND INTERPRETATION. 13 

'i. A promise tc pay C. or order ,$100 in cotton,' or i-n work Order to 
and labor.' 

3. An order for the payment of accrued rent, tho the rent is 
payable in money.' 

4. Pay C. or order $100 " in good East India bonds." * 

. 5. An instrument promising to pay $100 " in Canada money," 
if executed and payable in New York. Valid, if payable in 
Canada.^ 

6. Pay C. or order $100 " in current bank notes." ' 

The following are valid: 

7. An instrument promising to pay £100 10s. 5d., executed 
and payable in New York.' 

8. Pay G. or order $100 " in currency," ' " in current funds," 
or " in current funds of the State of Ohio." ' 

Note. — (1) Instruments payable in merchandise. The rule 
is uniform in denying to such instruments the attributes of 
commercial paper, though in Vermont and Massachusetts they 
import a consideration, but are not negotiable.'" Statutes in 
several States have, however, made such paper negotiable. 
(3) Instruments payable in hank notes, currency, etc. As to 
these, the rule in England is much more strict than in America, 
though relaxed somewhat in Humball v. Met. Bank (1877), 2 
L. R. Q. B. D. 194, where it was held that scrip certificates 
of a banking company, payable to bearer, were negotiable for 
the purpose of passing with a good title to a bona fide pur- 
chaser for value, who took them without notice that the vendor 
had no title (following Goodwin v. Mobarts (1876), 1 L. R. Ap. 

' Auerhach v. Pritchett (1877), 58 Ala. 451 ; Cf. McCartney v. Smalley 
(1860), 11 la. 85. 

» Quinby v. Merritt (1850), 11 Humph. (Tenn.) 439. 

' MoHon V. Naylor (1841) 1 Hill (N. T.) 583. 

*BuUer, N. P. 272. 

5 Thompson v. Sloan (1840), 23 Wend. (N. T.) 71 ; Cf. BlacJc v. Ward 
(1873), 27 Mich. 191. 

^ Utile V. Bank (1842), 2 Hill (N. T.) 425 ; Irvine v. Lowry (1840), 
14 Pet. (U. S.) 293 ; McCormick v. Trotter (1823), 10 S. & R. (Pa.) 94. 
Contra, Swetland v. Creigh (1846), 15 0. 118 ; if not notes of a. particular 
bank, Shamokin Bank v. Street (1864), 16 0. St. 1. 

' Thompson v. Sloan, supra. 

8 Klauber v. Biggerstaff (1879), 47 Wis. 551 ; Frank v. Wessels (1876), 
64 N. Y. 155 ; Brake v. Markle (1863), 21 Ind. 433 ; Marine Bank'y. 
Rushmore (1862), 28 HI. 463 ; Butler v. Paine (1863), SMinn. 324. 

' American Emigrant Co. v. Clark (1878), 47 la. 671 ; White v. Rich- 
mond (1847), 16 0. 5 ; Wright v. Hart (1863), 44 Pa. St. 454. 

^"Dennison v. Tyson (1845), 17 Vt. 549; Jones v. Fales (1808),' 4 
Mass. at 254. 



14 BILLS OF EXCHANGE. [AET. 10. 

drawee? ^^' ^'''^' ^® ^ foreign scrip). How far such documents would 

have the other incidents of negotiable instruments was not de- 
cided. Cf. Art. 378, note under seal. The American de- 
cisions have not been uniform even in the same 'State, and no 
rule can be laid down that will reconcile all the cases. But 
the tendency seems to be to use the term "money" in a very 
wide sense, including not merely what is legal tender, but 
" whatever is lawfully and actually current in buying and sejl- 
ing, of the value, and as the equivalent of coin." ' In some 
cases the courts take judicial notice,'' and in others evidence 
is received to show its character as a " circulating medium." ' 
See subject discussed and authorities reviewed in £lack v. 
Ward (1873), 27 Mich. 193. 

Explanation 4. — The order must not require the 
drawee to do any act in addition to the payment of 



money.* 



Illusteations. 



The following are not bills : 
1. Pay C. or order $100, and deliver up the wharf to him.' 
3. " " $100, and take up my note for that 

amount.' 

The following are valid : 

3. A note in usual form, to which is added, " the contents 
of this note to be appropriated to the payment of the X. 
mortgage."' 

4. A note in usual form, to which is added, " waiving right 
of appeal and of all valuation and exemption laws."* 

5. A note in usual form, to which is annexed a power of 
attorney to confess judgment thereon.' 

^Klauher v. Biggerstaff {Wlli), 47 Wis. at 557. 

» Judah V. Harris (1821), 19 Johns, (N. Y.) 144. 

^American Emigrant Co. v. Clark (1878), 47 la. 671. 

< Follett V. Moore (1849) ; 4 Exch. at 416. 

'■Martin v. Chauntry (1747), 2 Stra. 1271. 

" Cook V. Satterlee (1826), 6 Cow. (N. T.) 108 : Cf. GilliUn v. Myerx 
(1863), 31 111. 525. 

■! Treat v. Cooper (1842), 22 Me. 203 ; Cf. Preston v. Whitney (1871). 
23Mich. 260. 

"Zimmerman -ST. Anderson (1871), 67 Pa. St. 421 j Woolen v. Ulrich 
(1878), 64 Ind. 120. 

» Cushman v. Welsh (1869), 19 0. St. 586 ; Cf. Kirk v. Ins. Co. (1875), 
39Wis. 138. - ^ ' •" 



AKTS. 10-13.] FORM AND INTERPRETATION. 15 

Note. — In Illustrs. 3, 4 and 5, the instrument has all the ^^^^^ee" 
requisites of a promissory note, with which the added stipula- 
lations are in no way inconsistent, but "after the note falls 
due and Is unpaid, facilitate the collection by waiving certain 
rights which he might exercise to delay or impede it.'" Cf. 
Art. 13. Of. also, Art. 27 ?, note in alternative. 



Sum payable. 
Art. 11. A bill may be drawn for any sum. p^we. 

Note. — In England, by 48 Geo. 3, c. 88, § 2, a negotiable 
bill of exchange may not be drawn for any less sum than 30s. 
There are no restrictions as to amount in respect of non- 
negotiable bills and notes.. 

■ Art. 12. The sum for which a bill is drawn must statcmant 

-of bum. 

be expressed."* 

iLLUSTEATIOlSrS. 

1. Bill in this form, "Pay to my order % ." Evi- 
dence is not admissible to show that this is a bill for $100.^ 

2. " Pay C. or order sixteen ." No figures in the 

margin. Invalid.* 

3. Bill in this form, " Pay to my order twenty-five, ten 
shillings." This is sufficient as a bill for 2ol. lOs.^ 

4. "Pay C. or order fifty-two 35-100." No figures in the 
margin. Valid.' 

Explanation 1. — If the sum payable be expressed 
in words and also in figures, and there is a discrepan- 
cy between the two, the words prevail.'' 

^Zimmerman v. Anderson (1871), 67 Pa. St. 421: Woolen v. Ulrich 
(1878), 64 Ind. 120. 

2iJ. v. Elliott (1777), 1 Leach, C. C. 175; French Code, Art. 110; 
German Exchange Law, Art. 4 ; Cf. Art. 23 ; and Pothier, No. 85. 

3 Norwich Bank v. Hyde (1839), 13 Conn. 279 ; Cf. Saunderson v. 
Piper (18-39), 5 Bing. (N. C.) at 481. See Art. 23. 

* Brown v. Behee (1814), 1 D. Chip. (Vt.) 227. 

^Phlpps V. Tanner (1833), 5 C. & P. 488 ; Beardsley v. Sill (1871), 
61 111. 354. 

^Murrill v. Handu (1853), 17 Mo. 406. 

''Saunderson v. Piper, supra; German Exchange Law, Art. 5, 



16 BILLS OF EXCHANGE. [aetS. 12-13. 

statement IlLUSTEATIOIT. 

of sum. 

A bill is drawn, " Pay 0. or order two hundred dollars." In 
the margin is superscribed $350. This is a bill for $300 only.' 

Explanation 2. — The figures may supply an omis- 
sion in the words.^ 

Illusteatioit. > 

A bill is drawn, " Pay C, or order one hundred." In the 
margin is inserted $100. This is a bill for $100.' 

Note. — If the sum payable can be gathered from any part oi 
the instrument, whether from the figures or the form of expres- 
sion (Illustr. 4, supra,) in the body of the bill, it is valid. 
The written words govern, as the figures in the margin are no 
part of the bill, and can be referred to only in case of doubt.* 
German Exchange Law, Art. 5, provides that if the amount be 
expressed both times in figures, or both times in words, and 
there is a discrepancy, the smaller sum is the amount payable. 

Sum to be -A-rt. 13. The sum payable must be a certain and 

definite sum. 

Illusteatioh'S. 

The following orders or promises are invalid : 
1. Pay C. or order $100, and all other sums which may be 

due to him.' 
3 " _ " the proceeds of a shipment of goods, value 

$3,000, consigned by me to you.° 

3. " " the balance due to me for building the 
Baptist College Chapel.' 

4. « " $50 or $60.' 

> Saunderson v. Piper (1839), 5 Bing. N. C. 432. Cf. Hears v. Gra- 
ham (1846), 8 Blackf. (Ind.) 144. 

'E. V. Elliott (1777), 1 Leach, C. C. 175. 

« Id. ; Sweet ser v. French (1847), 18 Met. (Mass.) 262 ; Corgan v. 
Frw (1865), 39 III. 31. 

*Eileif V. Dickens (1857), 19 111. 29 ; Cf. Burnham v. Allen (1854), 1 
Gray (Mass.) 496. 

« Smith V. Nightingale (1818), 2 Stark. 275. 

« Jones V. Simpson (1823), 2 B. & C. 318 : Cf. Cushman v. Saynet 
(1838), 20 Pick. (Mass.) 132. 

' Crowfoot V. Gurnet/ (1832), 9 Bing. 372. 

" Fraliek v. Norton (1851), 2 Mich. 130: Cf. Parsons v. Jackson 
(1S78), 99 U. S. 434. 



certain. 



ART. 13.] FORM AND INTERPRETATION, 17 

5. Pay C. or order $100, and the demands of the sick Sum tote 

■' ' certain, 

club.i 

6. " " $100, and all fines according to rule.' 

7. An instrument in form of a note, but containing a provis- 
ion that the maker may pay at any time before maturity, " in- 
terest to be deducted accordingly. " ° 

The following are valid : 

8. A promise to pay $10 per acre for the X lot of land, be- 
comes valid when the number of acres is endorsed thereon. * 

9. A promise to pay $100 without interest on or before Jan, 
' 1st, 1882.5 

10. A promise to pay $100 and reasonable (or ten per cent.) 
attorney's fees, if not paid at maturity and suit is instituted.' 

11. A promise to pay $100 " but if not paid at maturity to 
bear ten per cent, interest." ' 

Note. — The notes in . Illustrs. 10 and 11 are valid on the 
ground stated ante. Art. 10, Exp. 4, note. As long as the 
note retains the peculiar incidents of commercial paper, that is, 
up to maturity, the amount payable is fixed and definite, and 
no extrinsic evidence is necessary to ascertain it. An indorsee 
can enforce the stipulation for attorney's fees.* In some states, 
such notes are void because usurious.' 

Explanation 1. — The fact that the amount payable 
is payable by instalments,^" or payable with interest, 
or that it is to be calculated according to an indicated 
rate of exchange, does not make it uncertain. 

^Bolton Y. Dugdale (1833), 4 B. & Ad. 619. 

« Ayreij v. Fearnsides (1838), 4 M. & W. 168. 

' Way V. Smith (1873), 111 Mass. 523; Stults v. Silm (1875), 1 19 Mass. 
137. 

' Smith Y. Clopton (1849), 4 Tex. 109. 

^HelmerY. Erolich (1877), 36 Mich. 371; MattisonY. Marhs (1875), 
31 Mich. 421. 

^Sperry v. Eorr (1871), 32 la. 184; Bulloch v. Taylor (1878), 39 Mich. 
137; Stoneman v. Ptjle (1871), 35 Ind. 103; HowensteinY. Barnes (1879), 
5 Dillon (C, Ct.) 482. Contra, Woods y. North (1877), 84 Pa. %i.AQl; First 
Nat. Bank v. Gay (1876), 63 Mo. 33; Jones v. Radatm (1880), (probably) 
37 Minn. 

■" Houghton v. Francis (1862), 29 111. 244; Towne v. Rice (1877), 122 
Mass. 67; Parher v. Plymell (1880), 23 Kans. 402. 

^Hubbard v. Harrison (1871), 38 Ind. 323. 

'Shelton v. Gill (1842), 11 0. 417; MyerY. Hart (1879) , 40 Mich. 517. 

■»Axfc. 19, Expl. 2. 
2 



18 BILLS OF EXCHANGE. [ABT. 13. 

Sum to te IllUSTKATIONS. 

certain. 

The following are valid : 

1. Pay C. or order $100 " with lawful interest." > 

2. " " at the exchange, as per indorse- 

ment." 2 

Invalid : 

« 

3. Pay C. or order $100 " with current exchange on New 
York." » 

Note. — The law seems clearly against the validity of a bill 
payable with current exchange, for two reasons : (1) The fluc- 
tuations in the rate of exchange make it impossible to ascer- 
tain the amount payable when the bill is issued. (3) Jf this 
were not so, evidence dehors the instrument would be neces- 
sary to ascertain the amount due at maturity. In the cases cited 
contra, the question is either not raised or not discussed, ex- 
cept in Smith v. Kendall, from which Campbell, J., dissents, 
and Christiancy, J., concurs, only on ground that the words 
" with current exchange" were without significance, as in Hill 
V. Todd (1863), 29 111. KVl. See a statement, of the practice 
as to the sale of foreign bills and the mode of fixing the ex- 
change, Suse V. Pompe,.^ C. B. N. S. at 542. To indorse a 
rate of exchange without authority is a material alteration, 
which avoids a bill : Sirschfield v. Smith (186(5), 1 L. R. C. 
P. 340. 

Explanation 2. — Wlien a bill is drawn in one coun- 
try and payable in another, and the amount payable 
is expressed in the currency of the former, it must be 
calculated according to the rate of exchange on the 
day the bill is payable. 

Illttstration. 

A. in England draws a bill on B. in France for lOOZ. sterlng. 
The amount in francs which the holder is entitled to receive is 

'Of. Warringtonr. Early (1853), 2 E. & B. 763. 

^Eouquette v. Overman (1875), 10 L. R. Q. B. at 531. 

' Lowe y. Bliss (1860), 24 111. 168; Philadelphia Banh v. NewUrh 
(1840), 2 Milea (Pa.) 442; Bead v. McNulty (1860), 12 Rich. L. (S. G.) 
445. Contra, Smith v. Kendall (1861), 9 Mich. 241; Pollard v. Herries 
(1803), 3B.&P. 335; Legettv. Jones (1859), 10 Wis. 34: Bullocks. Tay- 
lor (1878), 39 Mich. 137. 



AET. 13.] FOBM AND INTERPRETATION. 19 

determined by the rate of exchange on the day the bill is pay- Sum to be 
able. ■ 

Explanation 3. — When a bill ifs drawn in one coun- 
try payable in another in the currency of the latter, 
and such currency is depreciated between the time of 
issue and of payment, the holder is (perhaps) entitled 
to be paid according to the former value.^ 

Illusteation. 

A bill is drawn in England on Portugal for "100 mille rees." 
After it is drawn, but before it is payable, a depreciated paper 
currency is introduced. The holder is entitled to be paid in 
the former currency or to receive its equivalent. ' 

Note. — This decision seems opposed in principle to Over- 
man V. Mouquette (1875), 10 L. R. Q. B. 525, where it was held 
that the time of payment might be deferred by ex post facto 
legislation, the drawer's liabilities being regulated by the lex 
loci solutionis. 

Explanation 4. — ^When a bill is expressed to be 
payable with interest, interest runs from the date of 
the bill, and the amount payable must be calculated 
accordingly.* 

Illusteations. 

1. Bill payable three years after date, " with interest thereon 
till paid." Interest runs from date at the legal rate.° 

3. Bill payable on demand with interest. Interest runs from 
the date." 

1 Cf. HirschfieU v. Smith (1866), 1 L. E. C. P. at 353; Belgian Code, 
Art. 33. 

^ Da Costa Y. Cole (1688), Skin. 272. 

"Id. 

* Dormam. Dibdin (1826), U. & M. 381; Williams v. Baker (181S), 
67 lU. 238. 

» Id. Kohler v. Smith (1852), 2 Cal.597. 

' Pate V. Ch'at/ (1831), 1 Hempst. (C. Ct.) 155. Except bank notes which 
run from demand, Ringo v. Biscoe (1853), 8 Eng. (Ark.) at 584; Estate of 
BankofPenna. (1869), 60 Pa. St. 471. 



20 



BILLS OF EXCHANGE. 



[aet. 14. 



Sum to be 
certain. 



3. C, a married -woman, as administratrix, lends SlOO to her 
husband, who makes a note for the amount, expressed to be 
payable to 0. with interest. Interest runs from the date of the 
note, altho 0. could not sue on it during her husband's life- 
time.' 

4. B. makes a note, expressed to be payable with interest 
one year after his death. Interest runs from the date of the 
note.^ 

5. B. makes a note and adds — " If not paid when due, to bear 
35 per cent interest." Interest runs at the specified rate from 
date.' 

Note.— If bill bearing interest is undated, interest runs 
from date of issue.* In the absence of usury laws in force in 
several States but not in England, there is no limit to the rate 
the parties may agree on. If no time is expressed for the pay- 
ment of interest, none is due until maturity .° Interest after 
maturity, whether expressed or allowed by law, is in the na- 
ture of damages, as to which, see Arts. 213, 330. 



Value 
received. 



Expression of Consideration. 

Art. 14. It is usual, but not necessary, to insert 
in a bill the words "value received," or some equiv- 
alent expression denoting consideration.® 

Note. — By the weight of authority, the bill imports a con- 
sideration, though not " for value received," and not negotia- 
ble;' but in some States it is otherwise if the bill is non-nego- 
tiable.' See Art. 378, note, effect of a seal. German Ex- 

' Richards v. Richards (1831), 2 B. & Ad. 447. 

''Roffey V. Greenwell (1839), 10 A. & B. 222 ; WasUand v. Washband 
(1856), 24 Conn. 500. 

"Hornr. Nash (1855), 1 la. 204; Hachenhury v. Shaw (1858), 11 Ind. 
392. 

•^ Richardson v. Ellett (1853), 10 Tex. 190. 

« Sanders v. McCariJiy (1864), 8 Allen (Mass.) 42. , 

^ Hatch V. Trayes (1840), 11 A. & E. 702: Mehlberg v. Tisher (1869), 
24 Wis. 607. 

' Townsend v. Derby (1841), 8 Met. (Mass.) 363 ; Arrold v. Sprague 
(1861), 34 Vt. 402 ; Lobadie v. Chouteau (1866), 37 Mo. 413. 

' Bristol V. Warner (1848), 19 Coim. 7; Barnes v. Ward (1863), 51 
Me. 91 ; Cf. Hoyt v. Jaffray (1862), 29 111. 104. 



AET. 14.] FORM AND INTERPRETATION. 21 

change Law,"Art. 4, does not require the consideration to be Value 
stated. By French Code, Art. 110, the nature of the oonsid- '«<=eived. 
eration must be stated in the bill. A false statement of value 
constitutes a " supposition de valeur," and avoids the bill in the 
hands of parties with notice : Nouguier, §§ 383, 383. See jpost. 
Consideration, Art. 83. 

Explanation 1. — ^In a Bill of Exchange payable to 
a third party " value received " means, prima facie, 
value received by the drawer ; ^ but in an accepted 
bill, payable to drawer's order, it means value re- 
ceived by the acceptor.^ 

Explanation 2. — When a bill is expressed to be for 
value received, extrinsic evidence is admissible be- 
tween immediate parties to prove absence, failure, or 
illegality of consideration;^ but when a particular 
consideration is expressed, extrinsic evidence is (prob- 
ably) not admissible to prove a different consideration.* 

Illtjsteations. 

1. A note is expressed to be given " for commission, for 
business transacted." 'In an action by payee against maker, 
evidence is admissible to show that the consideration wholly 
failed, and that the payee never earned his commission.' 

3. A note is expressed to be given " for value received by 
my late husband." Evidence is not admissible to show that 
the note was given merely as an indemnity, and that the 
payee had not been damnified.' 

' Grant v. DaCosta (1815), 3 M. & S. 351 ; Benjamin v. Tillman 
(1840), 2 McL. (C. €t.) 213. 

^Hiakmore v. Primrose (1816), 5 M. & S. 65; Thurman v. VanB^unt 
(1853), 19 Barb. (N. Y.) 409. 

' Green v. Shepherd (1863), 5 Allen (Mass.), 589, absence ; Aldrich 
V. Stochwell (1864), 9 Allen, 45, failure ; Baker v. Collins (1864), 9 
Allen, 253, illegaUty. Arts. 91-95. 

* Hideout V. Bristou) (18.30), 1 Of. & J. 231 ; Hill v. Wilson (1873), 42 
L. J; Ch. 817 ; Nelson v. Serle (1839), 4 M. & W. 795 : KniU v. Will- 
iams (1809), 10 East. 431 ; Johnson v. Sutherland (1878), 39 Mich. 579. 
Contra, Blum v. Mitchell (1877), 59 Ala. 535 ; Magruder v. McDonald- 
(1828>. 3 Cranch. (G. Ct.), 299. 

^Abbott V. Hendricks (1840), 1 Man. & Gr. 791. 

^Rideout v. Bristow, supra. 



23 BILLS OF EXCHANGE. [aet. 15. 

Value 3. C, the payee of a bill expressed to be for value received, 

sues the acceptor. The acceptor may show that the bill was 
drawn and accepted for C.'s accommodation.' 

16. Note. — The principle is clear, but the application of it 
to cases near the line is difficult. In Abbot v. Hendricks (1840), 
1 M. & Gr. at 796, Maule, J., is reported as saying that a dif- 
rent consideration to the one alleged may be shown ; but in 3 
Scott, N. R. at 187, he is reported as saying the opposite, and 
this accords with what the other judges say : Of. Art. 56. 

Explanation 3. — ^A bill must not be expressed to 
be given for an executory consideration.^ 

Note. — An executory {i. e., future) consideration expressed 
on the instrument would render it conditional, and so invalid 
as a bill : Cf. Art. 10. 



Date of Mahmg. 

makiSg. Art. 15. It is usual, but not necessary, to insert in 

a bill the date on which it is drawn.^ 

Explanation. — A bill, expressed to be payable after 
date, should be dated ; but evidence is (perhaps) ad- 
missible to show on what day such bill, if undated, 
was issued, and it takes effect from that time.* 

Illustration. 

A. draws, without dating, a bill on B., payable to C three 
months after date. C can give evidence to show on what day 
the bill was issued to him. 

Note. — Byles, Chitty, and Parsons are of this opinion, rely- 
ing on Giles V. Bourne* where, however, the point arose on 
the pleadings and not on the evidence. No question could 

1 Cf. Thomson v. CluUey (1836), 1 M. & W. 212 ; Stephens v. Banlc 
(1878), 88 Pa. St. 1-57. But he caimot show no consideration for the 
acceptance', Nowak v. Excelsior Stone Co. (1875), 78 111. 307. 

'Drmy v. Macaulay (1846), 16 M. & W. 146 ; Hays v. Gwin (1862), 
19 Ind. 19. 

^Mehlberg v. Tisher (1869), 24 Wis. 607. 

"Cf. Giles v. Bourne (1817), 6 M. & S. 73 ; Seldonridge v. Connable 
(1869), 32 Ind. 375. 



AKT. 16.] FOBM AND INTERPRETATION. 23 

arise except in the case of a bill payable after date : Cf. the Dote of 
Scotch law, under 19 & 30 Vict. c. 60, § 10. German Ex- '"""""S- 
change Law, Art. 4, requires a bill to be dated ; so does the 
French Code, Art. 110. Pothier (No. 36), writing before the 
Code, says " Want of a date or mistake therein cannot be 
taken advantage of by the drawer of the bill, or by the drawee 
if he accepts it." 

Art. 16. A bill may be ante-dated or post-dated,^ ^.''p'^;^*""^ 
Explanation. — Evidence is admissible to show on '^'""^'''' 

what day such bill was issued, and it takes effect from 

that time, 

Illttsteations. 

1. A. draws a bill on B., bearing date May 1, payable to 
C.'s order. 0. indorses to D., who sues A. It appears that C. 
died in April. D. may show that the bill was post-dated, and 
that C. really indorsed it. He can then recover.^ 

3. C. sues B. on a partnership note dated in 1843, and 
signed by his partner in the firm name. The partnership was 
dissolved in 1840. C. may show that the billVas issued before 
dissolution, and post-dated. He can then recover.' 

3. D. sues B. on a check. D. may recover as a holder be- 
fore maturity, although shown to have taken it a year after its 
date, if it was in fact post-dated one year when issued.* 

4. C. sues B. on a note bearing date on a Sunday. He may 
recover if it appears to have been issued on Monday.' 

5. May 5th, C. sues B. on a note dated May 1st, payable one 
day after date without grace. C. cannot recover if it appears 
tQ have been issued on May 5th, and ante-dated.° 

Exception. — Such evidence is not admissible to in-- 
validate the title of a bona fide holder for value. 

' Usher v. Dauncey (1814), 4 Camp. 97 ; Barker v, Sterne (1854), 9 
Exch. 684, ante-date ; Gatttj v. Fry (1877), 2 L. R. Ex. D. 265, post- 
dated check ;. Mayer v. Mode (1878), 14 Hun (N. Y.), 155. 

^Pasmore v. NoHh (1811), 13 East. 517. 

'Lansing v. Gaine (1807), 2 Johns. (N. Y.) 800. 

* Cowing V. Altman (1877), 71 N. Y. 435 ; Cf. VraJce v. Rogers (1851), 
32 Me. 524. 

s King v. Fleming (1874), 72 111. 21 

'Eaefle v. Moore (1877), 58 Ga. 94. 



24 



BILLS OF EXCHANGE. 



[aet. 17. 



Ante-dating 
or post- 
fliiting 



Prcwiniption 
Ub Lu date. 



Illustbations. 

1. June 4th, D., a bona fide holder for value, sues B. on a note 
dated May 1st, and payable one month aftei* date. B. canfiot 
show that the note was issued June 1st, and dated May 1st by 
mistake.' 

2. In suit of bona fide holder for value against the maker of 
a note bearing date on a secular day, evidence is inadmissible 
to show that it was in fact issued on a Sunday.* 

Note. — If ante or post-dated, the date fixes the time from 
which to determine its maturity, except as against a bona fide 
holder for value.' See passim. Me Gomersall (1875.), 45 L, J, 
Bank. 1, as to drawing ante-dated bills to defraud creditors. 

Art. 17. A bill is prima facie presumed to have 
been issued on the day which it bears date.'* 

Exception 1. — When a bill is tendered in bank- 
ruptcy proceedings as evidence of a petitioning cred- 
itor's debt, the date must be confirmed by other evi- 
dence.^ 

Exception 2.— -A bill bearing date on a Sunday is 
not presumed to have been issued on that day.® 

Note. — A bill issued on Sunday is not void at common 
law,' but by statutes in most of the States, resembling the 29 
Car. 3, c. 7, a bill issued (Cf. Art. 246) on Sunday is void be- 
tween immediate parties,' and incapable of ratification," but 
valid in hands of bona fide holder for value, if dated on a secu- 

> Huston V. Young (1851), 33 Me. 85. 

» Knox V. Clifford (1875), 38 Wis. 651 ; Trieh&r v. Bank (1876), 31 
Ark. 128. 

^Bumpass v. Timms (1856), 3 Sneed (Tenn.), 459: Powell v. Waters 
(1826), 8 Cow. (N.Y.) 669. 

'Rolerts v. Bethell (1852)-, 12 C. B. at 778; Emery v. Vinall (1846), 
26 Me. 295. 

6Cf. Andersons. WeHon (1840), 6 Bing. N. C. at 301. 

^Beglie v. Levi (1830), 1 Cr. & J. 180 ; Dohoney v. Dohoney (1870), 
7 Bush (Ky.), 217. 

' O'Eourlce v. O'Rovrl-e (1880), 42 Mich. 

'Sayrev. Wheeler (1870), 31 la. 112; Day v. McAllister (1860), 15 
Gray, (Mass.) 433. 

'Stevens v. Wood (1879), 127 Mass. 123 ; Pope v. Linn (1863), 50 Me. 
83. Contra, King v. Fleming (1874), 72 111. 21. 



ABT. 18.] FOBM AND INTERPRETATION. 25 

lar day,' either on ground of estoppel,'' or because the statute Presumption 
does not declare the bill void to all intents and purposes.' 
That the bill bears date on a Sunday, is immaterial if in fact 
issued on a secular day.* The date of the bill, e.ff., " March 
6, 1881," is itself notice to the holder of its issue on Sunday, 
as the almanac is part of the law of the land.' 



Time of Payment. 

Art. 18. A bill may be payable (1) on demand, Kn^payabie 
(2) at sight, or (3) at a determinate future time. 

Explanation 1. — A bill is payable on demand which 
is expressed to be so payable, or in which no time for 
payment is expressed.® 

Illustrations. 

1. Payable "when demanded," or "at any time when 
called for." ' 

3. Payable " in such installments, and at such times as C. 
(payee) may require." * 

3. Payable " on demand, with interest after four months." ' 

NoTB. — A bill accepted or indorsed after it is due, is as 
against the acceptor or indorser a bill payable on demand.'" 

Explanation 2. — A bill is payable at sight which 

' Cranson v. Qoss (1871), 107 Mass. 439; Clinton Bank v. Graves 
(1878), 48 la. 228; Trieher v. Bank (1876), 31 Ark. 128. 
2 Knox V. CUfford (1875), 38 Wis. 651. 
8 Vinton v. Peck (1866), 14 Mioh. 287. 

* Hill V. Dunham (1856), 7 Gray (Mass.), 543; Fritseh v. Heislen 
(1867), 40 Mo. 555. But cf. Davis v. Barger (1877), 57 Ind. 54. 

* Finnev v. Callendar (1862), 8 Minn. 41; Sayre v. Wheeler (1870), 
31 la. 112. 

" WhitlockY. Underwood (1823), 2 B. & C. 157; AldouSY. Cornwall 
(1868), 8 L. R. Q. B. 573; Tucker v. Tucker (1875), 119 Mass. 79; Holmes 
T. West (1861), 17 Cal. 623. 

" Kingsbury Y.Butlei- (1832), 4 Vt. 458; Bowmanv.McChesneti(l&12), 
22 Grat. (Va.) 609. 

e WMte v. Smith (1875), 77 HI. 351. 

» Loring y. Gurneij (1827), 5- Pick. (Mass.) 15; Cf. First Nat. Bank 
V. Price (1879), 52 la. 570. 

'» Of. Art. 34, Time of Acceptance. Patterson v. Todd (1852),- 18 Pa 
St. 426; Rodgers v. Rosser (1876), 57 Ga. 319. 



26 



BILLS OF EXCHANGE. 



[akt. 19. 



Bill nayable 
on demand. 



Bill pnyal)le 
infuturo. 



is expressed to he so payable, or " on presentation " 
or " on demand at sight." ^ 

Note.— By 34 & 35 Vict. c. 74, bills "at sight" are for all 
purposes to be deemed payable on demand. 

Art, 19. A hill payahle at a future time may he 
expressed to he payable — 

(1.) At a fixed future time. 

(2.) At a fixed period after date. 

(3.) At a fixed period after sight. 

(4.) At a time certain to transpire, though indef- 
inite.^ 

Explanation 1. — ^An instrument expressed to he 
payable on a contingency does not constitute a hill ; 
and the happening of the event does not cure the de- 
fect.^ 

iLLUSTEATIOlSrS. 

The following are valid : 

1. Pay C. or order $100, ten days after the death of X.* 

2. « " two months after H.M. ship "Swal- 

low " is paid ofF.^ 

3. " " on the 1st January when he comes 

of age.' 

4. " " one year after notice.' 



^ Dixon V. Nutdll (1834), 1 Cr. M. & R. 807. 

'Colehan v. Cooke (1742), WiUes, 393; Cota v. Buch (1344), 7 Met. 
(Mass.) 588; Cf. Art. 10. ' 

"Id. at 399; Carlos v. Fancourt (1794), 5 T. R. 482; Kellet/ v. Hem- 
mingway (1852), 13 LI. 604; Miller Y.f Excelsior Co. (1878), 1 Bradwell 
(111.) 278. 

<Id.; Washhandv. Washhand (1856), 24 Coim. 500. 

^ Andrews-7. Franklin,! Stra. 24; Evans t. J/wiZeneoo^ (1749), 1 Wils. 
262. Grovemment is considered sure to pay. Sed qu. in Aiaeiica, Dan- 
iel § 46; Cf. Henry v. Hazen (1843), 5 Ark. 401. 

« Goss v. Nelson (1757), 1 Burr. 228. 

' Cla^on V. Gosling (1826), 5 B. & C. 360. 



AET 19.] FOBM AND INTERPRETATION. 27 

5. Pay 0. or order $100, one year after my death.' Bill payable 

6. " " two months after demand in -writ- 

ing." 

7. " " on the expiration of a certain lease,' 
The following are invalid : 

8. Pay 0. or order $100, when I marry X.* 

9. " " when he arrives at age. That he 

is of age at time of suit is im- 
material." 

10. " " thirty days after the arrival of ship 

" Swallow " at Calcutta.' 

11. " " ninety days after the dissolution of 

partnership between C. and X. 
and the settling of the books.' 

12. "' " when the estate of X. is settled 

up.' 

13. " " when a certain suit is terminated 

in Ttiy favor; when a certain 
building is completed; when a 
certain sale is made;when a cer- 
tain amount is collected of X.' 

Note — Under the French Code, Art. 139, and German I x- 
change Law, Art. 4, such forms as are given in Illustrations 1 
to 7 would probably be invalid. A bill, however, may be mai e 
payable at a particular fair or market (enfoire), though the di y 
on which it will be held is not known. Such bills seem to have 
been anciently known in England as " billse nundinales." '" 

^Roffey V. Greenwell (1839), 10 A. & E. 222; Conn v. Thornton{18m, 
46 Ala. 587. 

'Price T. Taylor (1860), 5 H. & N. 540; Cf. Protection Ins. Co. v. 
Bill (1863), 31 Conn. 534. 

'Cf. Downer v. Tucker (1858), 31 Vt. 204. 

* Pearson v. OarreU (1694), 4 Mod. 242. 

^Kelley v. Hemmingway (1852), 18 lU. 604. 

^Palmer v. Pratt (1824), 2 Bing. 185; Grant v. Wood (1858), 12 Gray 
(Mass.), 220. But Cf. Pinhham v. Macy (1845), 9 Met. (Mass.) 174, no 
objection raised. 

■'SackettY. Palmer (1857), 25 N. T. 179. 

'Husband v. EpUna (1876), 81 111. 172. 

'Shelton v. Bruce (1836), 9Terg. (Tenn.) 24; Millers. Excelsior Stone 
Co. (1878), 1 BradweU (111.) 273; DeForest v. Frary (1826), 6 Cow. (N. Y.) 
151; Coriett v. Georgia (1858), 24 Ga. 287. 

i» Cf. Colehan v. Cooke (1742), Willes at 399. See French Code, Art. 
133; German Exchange Law, Art. 83. 



^8 BILLS OF EXCHANGE. [abt. 19. 

Bill payable Exvianatiou 2. — If a bill is payable at a; tiine cer- 
tarn to transpire, it may be expressed to be payable 
before that time on tlie happening of a contingency.-' 

Illtjstratioij's. 

1. Pay C. or order $100 on or before three years from date.' 
3. " " one year from date, or before, if 

realized from the sale of a 
certain machine.' 

3. « " Dec. 25th, 1819, or when he com- 

pletes the building according 
to contract.* 

4. " " in six months, or as soon ias I can 

make the money out of the said 
patent right.' 

Note. — In the above cases, it will be noticed, (1) The promise 
is absolute ; it is construed (Art. 58) to be payable at the time 
specified, whether the money is realized out of the sale, the 
building completed, etc., or not. If otherwise,, the bill would 
be conditional, and invalid as such. (3) The bill is not pay- 
able " with interest." If so it would be invalid as a bill, since 
the sum payable would be uncertain (Art. 13).° This is the 
ground of the Mass. decisions, and Huhhard v. il/bse^y (1858), 
11 Gray, 1 70,8 not in conflict with the well settled doctrine in 
America that the time may be indefinite if it is certain to arrive. 
The proviso in the note, that if paid before maturity, the payee, 
should surrender it to the maker, necessarily destroyed its 
negotiability though payable " to order," which was the point 
decided. The case of 6 Ota v. Buck^ is still authority. But see 
Migelow, p. 20. 

^ Ernst V. Stechman (1873), 74 Pa. St. 13. Contra Alexander v. 
Thomas (1851), 16 Q. B. 335. 

■'Helmer-v. Krolick (1877), 36 Mich. 371; Jordan v. Tate (1869), 19 
O.St. 586. 

'Woolen V. Ulrich (1878), 64 Ind. 120; Cisne v. Chidester (1877), 85 
111. 623; Cota V. Buck (1844), 7 Met. (Mass.) 588. 

* Stevens v. Blunt (1810), 7 Mass. 240. 

^Palmer v. Hummer (1872), 10 Kans. 464. 

'Wai/Y. Smith (1873), 111 Mass. .523; Stults y. Silva {1815), 119 Mass. 

Lot, 



AET. 19.] , FORM AND INTERPSETATION. 29 

Explanation 3. — A bill may be expressed to be|piwabie 
payable, in effect, in a reasonable time.^ 

Illustkations. 

The following are valid, and payable absolutely within a 
reasonable time. 

1. Pay C, or order, 8100, " when convenient." " 

2. " " « when I sell my place." ' 

3. " " "as soon as collected from my 

accounts at P." * 

Explanation 4. — A bill may be expressed to be 
payable by stated instalments, and may provide tbat 
upon default in payment of one instalment tbe whole 
is to become due.^ 

Illusteations. 

1. Pay C. or order 1100, "by two equal instalments, due 1st 

January and 1st July." This is 
valid.^ 

2. " " " in such manner and propor- 

tion and at such a time and 
place as he shall require." ' 

3. " ' " by instalments," not stating date 

or amount. This is invalid.' 

' Capron v. Capron (1872), 44 Vt. 410; Contra, Nunez, v. Dantel 
(1873), 19 Wall. (U. S.) 560. 

^ Works V. Hershey (1872), 35 la. 340; Lewis v. Tipton (18-59), 10 0. 
St. 88. Contra, ExpaHe Tootell (1798), 4 Ves. 372. 

' Croolcer v. Holmes (1875), 65 Me. 195. ' 

■• Ubsdell V. Cunningham (1855), 22 Mo. 124. Sed qu. if a fair 

' Carton y. Keneah/ (1843), 12 M. & W. 139; Cooh v. Home (1873), 29 
L.T. N. S. 369; Cf. Sea v. Glover (1878). 1 BradweU (HI.) 335. 

^Gaskinv. Davis (1860), 2 F. & F. 294; Cf. Sanders v. McCarthy 
(1864), 8 AUen (Mass.), 42. 

' White Y. Smiih (1875), 77 111. 351; Cf. Colgate v. Buckingham (1863), 
39 Barb. (N. Y.) 177. 

'Moffat V. Edwards (1841), 1 Car. & M. 16. Sed qu. Why not 
payable on demand if no time expressed ? 



30 



BILLS OF EXCHANGE. 



[aet. 20. 



BUI payable 
Mt fu'-uro 



Compnta'ion 
of time 01 
payment. 



4. Pay C. or order 



, " by ten equal instalments, pay- 
able, etc., all instalmeiits to 
cease on the death of X." 
This is invalid.' 



Art. 20. In computing time, unless the contrary- 
be expressed,^ three Days of Grace are added to the 
nominal time of payment in the case of all bills^ not 
payable on demand ;* on such bills the nominal time 
of payment is determined by excluding the day from 
which time is to run, and including the day of pay- 
ment.^ 

" Month " means calendar month.® 



IXLtrSTEATIONS. 

1. A note dated 31st January is payable one month after 
date, " without grace." It is due on February 38. A similar 
note, dated January 1, would be payable on February 1.' 

2. A note for $100 is made payable by two equal instal- 
ments, on January 1 and February 1. The instalments fall due 
on January 4 and February 4.' 

3. A bill dated January 1 is payable thirty days after date. 
It is due on February 3.° 

* 

1 Worley v. Harrison (1835), 3 A. & E. 669. 

^Durnford v. Patterson (1820), 7 Mart. (La.) 460. 

^Afterdate, iJeeiT. Wilson (1879), 41 N. J. L. 29; WooHy. Corl 
(1842), 4 Met. (Mass.), 203. After sight, Craia v. Price (1861), 23 Ark. 
633. At sight, Webi v. Fairmaner (1838), 3M. & W. 473; Cribhsv. 
Adams (1859), 13 Gray (Mass.), 597; Lucas v. Ladew (1859), 28 Mo. 
342; bed contra. Trash v. Martin (1852), 1 E. D. Sm. (N. T.), 505; 
Strong V. King (1864), 35 111. 9. 

"Of. Andrew v. BlacMy (1860), 11 0. St. 89: Salter r. Burt (1838), 20 
Wend. (N. Y.), 205, check. 

° Campbell v. French (1795), 6 T. R. at 212; Ammidown v. Woodman 
(185C0, 31 Me. 580; Of. German Exchange Law, Art. 32. 

^ Webb V. Fairmaner (1838), 3 M. & W. 473; McMurchey v. Robinson 
(1841), 10 0. 496; Of. German Exchange Law, Art. 32; French Code, 
Art. 132. 

^ Cf. Roehner v. EnicTcerbocher Ins. Co. (1875), 63 N. T. 160. 

^OridgcY. Sherborne (1843), 11 M. & W. 381; Cf. Coffin v. Loring 
(1862), 5 AUen (Mass.), 153. 

^Seaton v. Hinneman (1879), 50 la. 395. 



ART. 20.] FOEM AND INTERPRETATION. 31 

4. " Pay the bearer $100 on April 1st, 1871." The bill is Computation 
. , , , r ■> of time of 

entitled to grace.' payment. 

5. 'A non-negotiable note, not payable on demand, is enti- 
tled to days of grace .^ 

Note. — The authorities are in conflict as to when suit may be 
begun against the maker or acceptor. It is held that suit may 
be commenced (1) Not until the day after the last day of grace, 
since the maker has the whole of that day in which to pay the 
note, and is not in default until its expiration.^ (2) On the 
last day of grace after due demand and refusal.* (3) On the 
last day of grace after reasonable hours for payment (Art. 163) 
have elapsed." Cf. Art. 353, Expl. 3, note. Suit against in- 
dorser. It is believed that all countries, except those where 
the Greek Church is the prevailing religion, use the New Style, 
or Gregorian Calendar. The number of days of grace allowed 
differs in different countries. By French Code, Art. 135, and 
German Exchange Law, Art. 33, days of grace are abolished. 
The Indian Draft Code proposes to do the same. The Bank of 
England pays its own bills without taking grace. 

" Sight " in a Bill of Exchange means acceptance 
or protest for non-acceptance, i. e. sight evidenced on 
the bill.« 

Illttsteations. 

1. The holder of a foreign bill, payable sixty days after sight 
makes an agreement that if it be dishonored by non-accep- 
tance, he will re-present it for payment at maturity. Accep- 
tance is refused. The time of payment must be calculated 
from the day the bill was protested, and not from the day of 
presentment to the drawee for acceptance.' 

^Evertson v. Bank (1876), 66 N. T. 14; Morrison v. Bailev (1855), 5 
0. St. 13. Contra in Conn., Bowen v. Newell (1855), 13 N. Y. 290. 

- Smith Y. Kendall (1794), 6. C. R. 123; Duluys v. Farmer (1870), 22 
La. An. 478. Contra, Backus v. Danforth (1834), 10 Conn. 297.- 

' Osborne v. Moncure (1829), 3 Wend. (N. T.), 170; Bevan v. Eldridge 
(1840), 2 Miles (Pa.), 358; McFarland y: Pico (1857), 8 Cal. 626. 

*Estes V. Tower (1869),* 102 Mass. 65; Ammidown v. Woodman 
(1850), 31 Me. 580; Daly v. Proetz (P'^^X 20 Minn. 411. 

^McKenzie v. Durant (1855), 9 Rich. L. (S. C), 61; Cf. Veaeie Bank 
IV. Winn (1855), 40 Me. 62. 

8 CamphellY. French (1795), 6 T. R. : 00, Ex. C i.; Mitchells. DeGrand 
(1817), 1 Mason (C. Ct.) 176; Cf. French (. ou , Ai-t 131; German Exchange 
Law, Art. 32. 

'Id. 



33 BILLS OF EXCHANGE. [aet. 20. 

Cornputnioii 3. A bill is payable at sight. It is presented and accepted 
payment. Jan. 1st. ft is due Jan. 4th. 

3. A bill is payable three months after sight. The accep- 
tance bears date Jan. 1. The bill is flue on April 4.' 

4. Bill payable after sight is noted for non-acceptance on 
January 1. It is accepted suprd protest on January 5. The 
time of payment (probably) must be calculated from Janu- 
ary 1.^ 

Note. — As a promissory note cannot be accepted, "after 
sight," in a note, means after mere exhibition to the maker.' 
A bill presented for acceptance is usually left for twenty-four 
hours (Art. 154), with the drawee, but the custom is for the 
acceptance to bear date the day of presentment, and not the 
day of return to the holder — e.g., a bill presented on a Satur- 
day is accepted and returned on the Monday; the acceptance 
should bear date of the Saturday. The holder is probably 
entitled to this as a matter of right. 

" Usance " means customary time, i.e., the time for 
payment as fixed by custom, having regard to the 
place where a bill is drawn and the place where it is 
payable. 

iLLTJSTEATIOIir. 

The usance between London and Amsterdam is one month; 
therefore a bill drawn in Amsterdam, dated January 1, paya- 
ble in London at double usance, falls due on March 4.* 

Note. — When the usance is a month, half usance means fif- 
teen days ; Of. Pothier, No. 15. The existence of a usance 
will not be judicially noticed: it must be proved. The prac- 
tice of drawing bills at usance is nearly obsolete in Europe, 
and has never prevailed in America. Drawing after date is 
more convenient, and answers the purpose. 

If a bill falls due on a Sunday or legal holiday, if 
entitled to grace, it is deemed to be due on the preced- 

1 Mitchell V. Z)eGra«£? (1817), 1 Mason (C. Ct.) 176. 

^ Such is the practice in England. See contra, dicta in Williams v. 
Germaine (1827), 7 B. & C. at 471. 

' Sturdy v. Henderson (1821). 4 B. & Aid. 592; Cf. Dixon v. Nuttall 
(1834), 1 C. M. & R. 307; Crihhs v. Adams (1859), 13 Gray (Mass.), at 
600. 

* Cf. Mutford V. WalcotiyiW), 1 Ld. Raym. 574. 



AET. 20.] FORM AND INTERPRETATION. 33 

ing day '^ if not entitled to grace, it is deemed to be of S*?" "^ 
due on the succeeding day.^ payment. 

Illustbatioit. 

A bill is payable three months after date. The last day of 
grace is Dec. 25th. The bill is due Dec. 34th, and if that is 
Sunday, it is due on the 33d. But if the second day of grace 
is Dec. 35th, it is still due on the 36th. 

Note. — ^Inasmuch as days of grace were originally allowed 
as a favor, and therefore contracted rather than extended, by 
the occurrence of a holiday, it seems that if no grace is allowed, 
the rule of common law contracts as above stated should apply. 
But evidence of a usage to the contrary would be admissible. ' 
By French Code, Art. 134, a bill which falls due on a dies non 
{f&rid UgaT) is payable the day before. 

The computation of time is determined by the law 
of the place of payment if shown.* 

Illustrations. 

1. A bill is drawn in England payable in Paris three months 
after date. After it is drawn, but before it is due, a moratory 
law is passed in France postponing the maturity of all current 
bills for one month. The maturity of this bill is for all pur- 
poses, to be determined by French law.^ 

3. By French law, days of grace are not allowed. A bill 
drawn in France, payable in England, is entitled to three days 
grace; but a bill drawn in England, payable in France, is not 
entitled to grace.* 

1 Reid, V. Wilson (1879), 41 N. J. L. 39; City Bank v. Cutter (1826), 3 
Pick. (Mass.) 414, holiday by usage. 

^ Avery v. StewaH (1816), 2 Conn. 69; Salter v. Burt (1838), 20 Wend. 
(N. Y.), 205; Barrett Y. Allen{1841), 10 0. 426; Kuntz v. Tempel (1871) 
48 Mo. 71. Contra (due day before), Barker v. Parker (1827), 6 Pick. 
(Mass.) 80; Doremus v. Burton (1860), 5 Biss. (C. Ct.) 57. 

^Kilgore v. Bulkley (1841), 14 Conn, at 392. 

*Skelton v. Dustin (1879), 92 lU. 49. 

^EouqueUe v. Overman (1875), 10 L. R. Q. B. 525. 

«Id. at 535-538; BowenY. Newell (1855), 13 N. T. 290; Thorp v. 
Craig (1860), 10 la. 461. 



34 BILLS OF EXCHANGE. [aets. 21-22. 

Place of Making and Payment. 

Saking. -A-rt. 21. It is usual, but not necessary, to state in a 

bill tbe place wbere it is drawn. 

Note. — By 9 Geo. 4, c. 65, a penalty is imposed on the issue 
or pegotiation in England of bills or notes of less than 5Z., pay- 
able to bearer on demand, which are made or purport to be 
made in Scotland or Ireland ; and see Art. 279. In France, 
the place whefe' a bill is drawn must be stated, for a bill cannot 
be drawn a.nd payable in the same place. There must be a 
possible rate of exchange between the place where it is drawn 
and' the place where it is payable; French Code, Art. 110; 
JSTouguier, § 93-105. In Germany the law is the same as in 
England. 

plyment Art. 22. The drawer of a Bill of Exchange may or 

may not indicate a place of payment therein : he may 
also indicate an alternative place of payment.^ 

Note. — By French Code, Art. 110, and German Exchange 
Law, Art. 4, the place of payment must be stated. As to the 
effect of the drawer stating or not stating a place of payment, 
see Art. 166. Presentment for Payment. 

Explanation. — The drawer of a bill may make it 
payable at the house or plaee of business of some per- 
son other than the drawee.^ 

iLTiTJSTEATIOlSr. 

A. may draw a bill on B., in Liverpool, payable at Messrs. 
X. & Co.'s, bankers, London. 

Note. — The person at whose house or place of business a bill 
is drawn or accepted payable, is sometimes called the " domi- 
ciliary," from the French term " domiciliaire," and the bill is 
said to be " domiciled " where payable. 

^Maiden Banh-v. Baldwin (1859), 13 Gray (Mass.), 154; Cf. Pollard-<i. 
Berries (1803), 3 B. & P. 335 
2Cf. French Code, Art. 111. 



AET. 23.] FORM AND INTERPRETATION. 

Inchoate Bills. 
Art. 23. Delivery ^ of an incomplete^ bill signed Bunic sig- 

•' ■■- , ° , natures. 

or endorsed for use as such., confers a prima facte 
authority* upon any successive holder^ to fill the 
blanks necessary to its completion^ ; and if the bill 
be negotiated to a holder for value without notice, the 
presumption of authority becomes absolute. 

iLLrSTEATIOKS. 

1. A. draws a bill on B. payable to or order. Any 

honafide holder may write his own name in the blank, and sue 
on the bill.* 

2. B., who is indebted to X., gives him an acceptance for 
$100 on a blank paper. X dies. His administrator fills up 
the paper as a bill payable to drawer's order, inserting his own 
name as drawer. He can sue B. on the bill.' 

3. B. signs and delivers to C. a note with blank amount to 
be filled up for $100. 0. fills it up for $500, and negotiates it 
to D., who takes it for value without notice. D. can recover 
of B. the face of the note.'" 

4. B. signs and delivers to C, on March 1st., a note with 
date blank, payable one month after date. C. dates it Febru- 

^Ledwich y. McKim (1873), S3 N. T. 307; Baxendale v. Bennet (1878), 
3 L. R. Q. B. D. 525, C. A., stolen hill. 
' Otherwise it would be alteration, Art. 246. 

* Nance v. Lary (1843), 5 Ala. 370; Moody v. ThrelkeU (1853), 13 Ga. 
55; Putnam v. Sullivan (1808), 4 Mass. at 54. ' 

* Hatch V. Searles (1854), 2Sm. & G. at 152, 153; Davidson v. Lanier 
(1866), 4 Wall. (U. S.) 447. 

•^Page v. Morrell (1866), 3 Abb. N. T. Ap. D. 433. 

'Angle V. Ins. Co. (1875), 92 U. S. 330; ToomerY. Rutland (1876), 57 
Ala. 379; I»es V. Bamfe (1861), 2 Allen (Mass.) 236. 

' Hatch Y. Searles, supra; WMtmore v. NicTcerson (1878), 125 Mass. 
496; FawI>Maerv. ifoMie (I860), 21 N. T. 531. 

« Crutchley y. Mann (1814), 5 Taunt. 529; Sittia y. Birkestach (1873), 
38 Md. 158; Tan Etta v. Evenson (1871), 28 Wis. 33; Armstrong y 
Harshman (1878), 61 Ind. 52; Ives v. Bank (1861), 2 AUen(MaBS.) 236 

>Scard v. Jackson (1876), 34 L. T, N. S. 65. 

" Bank v. Curry (ISSi), 2 Dana (Ky.), 142; Van DuzerY. Howe (1860), 
21 N. T. 531. In England,. stamp limits amount, Shultz v. Astley (1836), 



36 , BILLS OF EXCHANGE. [art. 23. 

Biantsig- ary 15th. It is due March 18th, in the hands oi a holder for 
value without notice.* 

5. D. indorses an instrument reading: " —after date 

^promise to pay to the order of at dollars, 

for value received," and delivers it to B. to be filled up, but 
expl-essly stipulates that it shall not be made payable at a 
bank. D. is liable to holder for value -without notice, though 
filled up payable at a bank.^ 

6. The foregoing instrument is indorsed and delivered to C 
■with general authority, to fill up the blanks. He adds at the 
end of the note " waiving all valuation laws " or " bearing ten 
per cent, interest after maturity. A holder for value without 
notice cannot • recover of the indorser. The clause is not a 
completion, but an alteration." 

7. D. indorsed and delivered to A. a bill drawn by A. on B., 
blank as to amount, time of payment, and payee. A. struck 
out drawee's name, and place of drawing, and filled it up as a 
promissory note. Holder for value without notice cannot re- 
cover of the indorser.* 

Explanation 1. — As between immediate parties 
(Art. 88) the bill must be filled up witbin a reasona- 
ble time,^ Reasonable time is a question of fact.? 

Explanation 2. — As between immediate parties the 
bill must be filled up and negotiated in accordance 
with the authority given.^ 

Illusteations. 
1. B. signs a note leaving date blank, and blank space after 

^Page v. Morrell (1866), 3 Abb. N. T. Ap. D. 433; Snyderw.Tan 
Borers (1879), 46 Wis. 602. 

'Spitlerv. James (1869), 32 Ind. 202, and EedlichY. Doll (1873), 54 
N. T. 284. Contra, Awde v. Dixon (1851), 6 Exoh. 869. 

Holland v. Hatch (1858), 11 Ind. 497; Cf. Holland v. Hatch (1864), 
15 0. St. 464; Ivory v. Michael (1863), 83 Mo.' 398. 

* Bank v. Douglas (1862), 81 Conn. 170; Cf. Luellen v. Hare (1869), 
32 Ind. 211. 

^Mulhall V. mmlle (1852), 8 Exch. 391; Montague v. Perkins (1853), 
22 L. J. C. P. 187. 

« Temple v. Pullen (1853), 8 Exoh. 389. 

"< Hatch V. Searles (1854), 2 Sm. & G. 147 at 152; Hanbury v. Lovett 



AET. 23.] FORM AND INTERPRETATION. 37 

the word " at," where place of payment is usually inserted, and Blank sig- 
sends it to (J. with a letter, saying, "I have left date blank 
which you will fill out giving as long time as possible." C. 
cannot recover if he inserts a place of payment in the blank 
space for tha.t purpose." ' 

2. B. gives X. a blank acceptance for $500, in order that he 
may get it discounted for him. X. has the bill filled up as 
payable to drawer's order, and gets A. to sign as drawer and 
indorser in a fictitious name. X then negotiates the bill, and 
■ it gets into the hands of E., who takes it bond fide for. value 
and without notice. None of the money reaches B.'s hands. 
E. can sue B." 

Note. — Is the act of the holder in fraudulently filling the 
blanks, a forgery, or a breach of trust ? If forgery, then an in- 
nocent holder cannot recover thereon, as it is a nullity; aliter 
if a mere breach of trust. In America the rule of Lord Mans- 
field in Eussell v. Langstaffe (1780), 3 Dougl. 514, that " the 
indorsement on a blank note is a letter of credit for an indefi- 
nite sum," has been applied to its full extent, and it is further 
held to be immaterial that the plaintiff took the note knowing 
it to have been given to the holder in blank; He is not thereby 
put upon inquiry as to the extent of the iioider's authority.' 
But the later English cases have limited the doctrine, and what 
would be held in America only a breach of trust, has been re- 
garded as forgery,* 

Explanation 3. — The bill takes effect and the lia- 
bilities of the parties accrue from the time it is com- 
pletely filled up and issued, and not from the time 
the signature was given .^ 

(1868), 18 L. T. N. S. 366; Davidson v. Lanier (1866), 4 Wall. (U. S.) * 
447. 

' Toomer v. Rutland (1876), 57 Ala. 379. 

^Schultz v. Astleu (1886), 2 Bing. N. C. 544. Cf. Farmers Bank v. 
Garten (1863), 84 Mo. 119. 

» Chemung Bank v. Bradner (1871), 44 N. T. 680. Contra, Hatch v. 
Searles (l854), 2 Sm. & Q. 147. at 153. 

*Au'de V. Dixon (1851), 6 Exch. 869 ; RexY. Hart (1837), 1 Moo. C. C. 
486. Cf. Spitler v. James, (1869), 32 Ind. 202. 

' Temple v. Pullen (1853), 8 Exoh. 389; Montague v. Perkins (1858), 
22 L. J. C.P. 187; Ex parte Hayward (1871), 6 L. R. Ch. 546. But 
maturity calculated from date Townsend v. France (1861), 2 Houst. 
(Tenn.), 441. 



38 



Blank sig 
natures. 



BILLS OF EXCHANGE. 



Ilujsteatioits. 



[aet. 24. 



1. B., a bankrupt, gives a blank acceptance. It is filled up 
and negotiated after the close of the bankruptcy. The holder 
can sue, for it did not constitute a proveable debt.' 

Note. — An instrument which is wanting in some one or more 
of the requisites of a complete bill, is in effect a transferable 
authority to create a bill, and while incomplete is subject to the 
ordinary rules of law relating .to authorities — e.g., an author- 
ity emanating from a firm is not revoked by the death of a 
partner!^ If the signer die while bill is incomplete, the au- 
thority, unless coupled with an interest, is revoked.' 



Inland bill 
defined. 



Inland and Foreign Bills. 

Art. 24. Bills are either inland or foreign. An 
inland bill is a bill drawn and payable within the 
same country ; all others are foreign bills.* 

Illustbation. 

A, B. and G. are residents of Augusta, Maine. A draws a bill 
on B. payable to C. at the X bank in Boston, Mass.. This is a 
foreign bill.° 

Note. — Grimshaw v. Sender^ is the only case where it has 
been distinctly decided that the question depends on the 
residence of drawer and drawee, and the later cases in Massa- 
chusetts .have followed it only in so far as to express the 
rwle in the loose language of many cases where the residence 
of drawer and drawee were ihe same, so that no question could 
arise on this point. 

1 Goldsmid v. Hampton (1858), 5 C. B. N. S. 94. 

2 Usher v. Daimcey (1814), 4 Camp. 97. 
^Michigan Lis. Co. v. Leavenworth (1856), 30 Vt. 11. 

* Freeman's Bank v. Perkins (1841), 18 Me. 292; Bank v. Daniel 
(1888), 12 Pet. (U. S.), 82; Amnery. Clark (1835), 2 C. M. & R.468; 
Strau-bridge v. Eobinson {184%. 5 Gilm. (111.), 470. In England, defined 
by statute, 19 and 20 Vict. c. 97, § 7. 

' Id. Contra, Grimshaw v. Bender (1809), 6 Mass. 162; Bigelow, p. 23 



AKT. 25.] FORM AND INTERPRETATION. 39 

Explanation 1.— The States o£ the Union are foreign ^^^^^,,"^^4™ 
to each other within the meaning of this article.-^ 

Explanation 2. — ^Unless the contrary appear by its 
terms, \h.& prima facie presumption is that a bill is an 
inland bill.^ 



Bill of Exchange drawn in a set. 
Art. 25. A Bill of Exchange may be drawn in a whoie set 

,. 11 • one bill. 

set, each part of the set being numbered, and contain- 
ing a reference to the other parts. All the parts con- 
stitute but one bill.^ 

Illttsteations. 

1, If one part of a set omit reference to the rest it becomes 
a separate bill in the hands of a bond fide holder.* 

3. An agreement to deliver up an unaccepted bill drawn in 
a set is an agreement to deliver up all the parts in existence." 

Explanation. — A person who negotiates a Bill of 
Exchange drawn in a set, is bound to deliver up all 
the parts in his possession, but by negotiating one 
part he does not warrant that he has the rest.^ 

Note. — In England the obligation to give a set is probably 
a matter of bargain. By German Exchange Law, Art. 66, the 
payee is entitled to demand a set from the drawer; and if a bill, 
issued singly, be destroyed or lost, the indorsee can obtain a 
second of exchange by addressing himself to his immediate 

^Buckner v. FinUy (1829), 2 Pet. (U. S.), 586; Ocean Bank v. 
Williams (1869), 102 Mass. 41; Mason v. Dousay (18g4), 35 111. 424. 

''Cf. Armani Y. Castrique (1844), 13 M. & W. 443 ; Lennig v. Ralston 
(1854), 23 Pa. St. at 139. ' 

»Cf. French Code, Art. 110 ; Societi GSnSraU v. Bank (1873), 27 L. T. 
N. S. 849 ;.Doiones v. Church (1839), 13 Pet. (LT. S.) 205 at. 207. 

* German Exchange Law, Art. 66 ; Cf. French Code, Art. 147. 

^Kearney v. West Granada Co. (1856), 26 L. J. Ex. 15. Ratio decirUndi 
not clear. How could drawee^ of unaccepted bill be liable to the holder ? 
H^imight be to the drawer ultimately. 

fpinard v. Klockman iiS>&i), 32 L. J. Q. B. 82. 



40 



BILLS OF EXCHANGE. [aets. 2:7-28. 



Whole set 
one bill. 



Indorsement 
of set. 



Acceptance 
of set. 



indorser, who applies to the indorser before, and so on up to 
the drawer. French law seems to be the same : Nouguier, 
§305 and 219. The parts of a set {duplicata) must be distin- 
guished from copies \copie) : N'ouguiar, § 209 ; and German 
Exchange Law, Art. 70-72. 

Art. 27. A holder who negotiates a set by indorse- 
ment, may (and perhaps should) indorse all the parts 
that he holds.-^ 

Explanation. — If an indorser indorse two parts to 
different persons, he is (probably) liable on both, and 
every indorser subsequent to him is liable on the part 
he has himself indorsed.^ 

Note. — The practice is for the indorser to indorse all the 
parts he holds. His position is analogous to that of the drawer. 
It is s^id an indorser is not bound to pay unless all the parts 
bearing his indorsement are given up to him or accounted for.' 
But in America it is held that in the case of an accepted bill, 
it is primd fade sufficient if the accepted part be given up,* 
a.nd in the case of an unaccepted bill, if the protested part be 
given up ; there being no presumption that the missing parts 
have been improperly negotiated.* • 

Art. 28. The acceptance may be written on any 
part of a set, and it should be written on one only.® 

NoTi!. — Any part of the set may be presented for acceptance.' 
Indian Draft Code, Art. 117, provides : " When one of a 
set has been sent for acceptance, the sender sliould, upon 
the others of the set, make a note of the address of the person 
in whose hands the part so sent for acceptance is. The. omis- 
sion to make such note does not deprive the holder of his right 
to negotiate the bill, but renders the sender responsible for 

iCf. SociStS Generate v. Bank (1873), 27 L. T. N. S. 849; Nouguier, 
§218. 

= Id. and Iloldnworth v. Hunter (1830), 10 B. & C. 449; German Ex- 
change Law, Art. 67; Indian Draft Code, Art; 116. 

'Societi Generale v. Banjc, supra, at 854. 

* Johnson v. Offutt (1862), 4 Meto. (Ky.) 19; Commercial Bank y. 
Boufh (1852), 7 La. An. 128. 

' Downes v. Church (1839), 13 Pet. (U. S.J, 205. But see Wells v. 
Whitehead (1836), 15 Wend. (N. Y.) 527;' 3 Kent Com. 109. 

'BankY. Neal (18-59), 22 How. (U. S.) 96; Cf. Holdsworth v. Hui^^r 
(1830), lOB. &C. 449. ^ 

.'Id.; Walsh Y. BlaichUy (1853), 6 Wis. 422. 



A.ET. 29.] FORM AND INTERPRETATION. 41 

damage resulting to any holder from such omission. The per- Acceptance 
son in possession of the part sent for acceptance is bound to de- ° °® ■ 
liver it to the holder of the set to which such part belongs" : 
Of. German Exchange Law, Art, 68. This accords with mer- 
cantile usage. 

Art. 29. Payment in due course of one part of ajfy^®°* 
set disc}iarges the whole bill.^ 

Exception 1. — If the drawee accepts two parts, and 
such parts get into the hands of different bona fide 
holders, he is (probably) liable to pay both.^ 

Exception 2. — If the acceptor pay without requiring 
the part bearing his acceptance to be delivered up to 
him, and such part be at maturity, outstanding in the 
hands of a bona fide holder, he is (probably) not dis- 
charged.* 

iLLtrSTEATIOSr. 

B. accepts a third of exchange. At maturity the first and 
second are presented to him and he pays. It turns out that the 
third of exchange, with his acceptance on it, was at the time 
in the hands of a bond fide holder. B, is still liable to pay the 
third of exchange. 

Exception 3. — The indorser who has indorsed two 
parts to different persons, and indorsers subsequent to 
him of the part not paid, are (probably) not dis- 
charged (Art. 27). 

NoTB. — The exceptions as stated accord with mercantile 
opinion. Most foreign codes contain Exception 3. Art. 30, 
however, raises a difficulty. 

^Dowries v. Church (1839), 13 Pet. (U. S.) at 207; Durkin v. Cranston 
(1811), 7 Johns. (N. Y.) 442; French Code, Art. 147; German Exchange 
Law, Art. 67. 

^BanJc V. Neal, (1859), 22 How. (U. S.) 96; Cf. Holdsworth v. Hunter, 
(18.30), 10 B. & C. 449; Ralli v. Dennistom (1851), 6 Exch. at 496; Ger- 
man Exchange Law, Art. 67. 

IGf. French Code, Art. 148; German Exchange Law, Art. 67; and see 
Kearney v. West Granada Co. (1856), 1 H. & N. 412. 



42 



BILLS OF EXCHANGE. [aets. 30-32. 



Right of 
holder of 
one part. 



Art. 30. If the parts of a set be negotiated to dif- 
ferent persons, the holder whose title first accrues is 
(perhaps) entitled to the whole set.-"- 

Illustration. 

C, the holder of a bill drawn in a set, negotiates the third of 
exchange to D. Two days afterwards he negotiates the first 
and second to E. D. can compel E. to deliver up to him the 
first and second." 

Note. — This Art. is not necessarily inconsistent witli Arts. 
37 and 29, where the liability of the acceptor or .indorser de- 
pends on estoppel and is independent of title to the bill. In 
the case given, E. would not be without, remedy. He could get 
back from 0. the money he had given for the bill as money 
paid for a consideration which had failed, or he could bring an 
action against C. for false representation. 



Acceptfince 
defined. 



Requisites 
In form. 



Acceptance of Bill of Exchange. 

Art. 31. " Acceptance " is the assent in due form 
by the drawee of a Bill of Exchange to the order of 
the drawer. 

Art. 32. The acceptance^ of a Bill of Exchange 
may be : 

(1). In writing on the bill,* or on a separate paper .^ 

Illusteations. 
1. A. draws a bill on B. B. writes thereon the word " Ac- 

'^Perreira v. Jopp (1793), cited 10 B. & 0. at 450, see at 454; Cf. 
Walsh v. BlatcUey (1853), 6 Wis. 422. 

2 Id. 

' Completed by delivery, or notification to the holder. Smith v. Me- 
Clure (1804), 5 East, 476 ; Dunavan v. Flynn (1875), 118 Mass. 537 ; Cf. 
Art. 53. 

*M%ist be in England (19 & 20 Vict. c. 97, § 6 ; 41 & 42 Viqt. c. 13, 
§ 1), and by statute in many of the States. 

^ Jones V. Bimh (1864), 84 111. 318 j Wynne v. Raihes (1804), 2 J. P. 
Smith, 98. 



AET. 32.] FOBM AND INTERPRETATION. 43 

cepted," " Presented," " Seen," " Honored," or merely his Eequisitea 
name. This is primd facie an acceptance.* 

2. B. writes on the back thereof, " I will see the within paid 
eventually." This is an acceptance.' 

3. B. writes thereon an order to X to pay the within. This 
is an acceptance.' 

4. B. writes thereon, " I take notice of the above," and signs 
his name. This is not necessarily an acceptance.* 

5. A. draws a bill on ' B. After it is received by C, the 
payee, B. writes to A., promising to pay the bill. This is an 
acceptance, and enures to the benefit of 0., and all subsequent 
holders.^ « 

Note. — The drawee may use any form of words from which 
the intention to accept can be gathered," and if the words ne- 
cessarily import an acceptance, he will be bound thereby, 
whether he intended to accept or not. But if the language is 
ambiguous, parol evidence to explain it is admissible between 
immediate parties, perhaps against a remote party.' 

(2.) Oral/ or implied from acts ofthe drawee.' 
Illusteations. 

1. A. draws a bill on B. When presented by the holder for 
acceptance, B. refuses to write anything on the bill, but says, 
" The bill is correct and shall be paid." This is an accept- 
ance.'" 

^ Spear -7. Pratt (1842), 2 Hill, (N. T.) 582 ; Kaufman v. Barringer 
(1868), 20 La. An. 419. 

^Brannm v. Henderson (1851), 12 B. Mon. (Ky.) 61. 

'Harper v. West (1804), 1 Cranch. (0. Ct.) 192. 

* Cook r. Baldwin (1876), 120 Mass. 317. 

' Of. Edson V. Fuller (1850), 2 Fost. (N. H.) 183 at 188 ; Jones v. 
Bank (1864), 3401. 313 ; Spalding v. Andrews (1864), 48 Pa. St. at 413 ; 
Wynne v. Raikes (1804), 2 East, 514 ; Fairlee v. Herring (1826), 3 
Bing. 625, Bimough, J. & Best, C. J. Of. infra, Expl. 3. 

« Of. SmUh V. Virtue (1860), 30 L. J. C. P. at 60, Byles, J. 

' Gallagher v. Blach (1857), 44 Me. 99 ; Bigelow, p. 49. 

'Scudder v. Bank (1875), 91 U. S. 406; Pierce v. Kittredge (1874), 
115 Mass. 374 ; Stiirges v. Bank (1874), 75 111. 595 ; Miller v. Neihaus 
(1875), 51 Ind. 401 ; Duel v. Brieker (1874), 76 Pa. St. 255 ; Jarvis v. 
Wilson (1878), 46 Conn. 90. 

'Cf. Cook V. Baldwin, supra ; McCutchen Y.Rice (1879), 56 Miss. 455. 

'» Ward T. Allen {im). 2 Met. (Mass.) 53, and Spalding v. Andrews, 
supra. 



44' SILLS op EXCHANGE. [aet. 32. 

Kequisites 2. If drawee in possession of the bill procures another to 

discount it, an acceptance is implied.' 

3. Detention of the bill by drawee, may, under some circum- 
stances, amount to an acceptance.^ 

4. Part payment of the bill by drawee, will not, of itself, 
amount to an acceptance.' 

NoTE.-^— In case of a written acceptance on the bill, it is im- 
material by whom presented, but in case of an oral acceptance 
or a written, acceptance dehors the bill, it must be addressed 
to a party to the bill ; if to a mere stranger, it is not an ac- 
ceptance.* 

(3.) A written or verba? promise to accept, either 
before,^ or after tbe existence of the bill.'' 

Explanation 1. — Such, promise must be made with- 
in a reasonable time before or after the issue of the 
bill.* 

Illusteatiobt. 

A. and B. having an open account, an adjustment takes 
place between B. and an agent of A., and the balance found 
due is paid over to the agent. A ■ expresses dissatisfaction, 
whereupon B. writes him, " Re-peruse the accounts, make out 
a statement to suit yourself, and draw on me for the balance, 
which shall be duly honored." B. is not thereby liable as ac- 
ceptor on a bill drawn two years afterwards.' 

^Bank v. Marsden (1861), 84 Vt. 89. Aliter, if discounted by drawee, 
Swope V. Ross (1861), 40 Pa. St. 186. 

^ Sough V. Loring (1837), 24 Pick. (Mass.) 254 ; Hall'^r. SieeZ (1873), 68 
lU. 231 ; Cf. Overman v. Bank (1864), 31 N. J. L. 563. 

» Cook V. Baldwin (1876), 120 Mass. 317 ; Bassett v. Haines (1858), 9 
Cal. 260 ; Cf. Petersons. Hubbard (1873), 28 Mich. 197. 

* Martin v. Bacon, Treadw. (S. C.) Const. 133 ; Stori/, § 247. 

^Nelson v. Bank (1868), 48 111. 37 ; Scudder v. Bank (1875), 91 U. S. 
406 ; Cf. Bank v. Ely (1837),. 17 Wend. (N. T.) 508. Contra, if before 
bOl drawn Kennedy v. G-eddes (1838), 8 Port. (Ala.) 263 ; Plummer v. 
Lyman (1860), 49 Me. 229. 

' Contra, Johnson v. ColUngs (1800), 1 East, 98 : Bank v. Archer 
(1843), 11 M. & W. 383. 

' CooUdge v, Paysoh (1817), 2 Wheat. (TJ. S.) 66 ; Parker v. Greele 
(1829), 2 Wend. (N. Y.) 545 ; Merchants Bank v. Oriswold (1878), 72 
N. Y. 472. 

"Id. ; Boyee v. Edwards (1830), 4 Pet. (U. S.) 111. 

» Wilson V. Clements (1807), 3 Mass. 1. 



AET. 32.] FORM AND INTERPRETATION. 45 



Explanation 2. — Sncli promise must specify the bill?®|; 
to be drawn, so as to distinguish it from any other/ 
Illustrations. 

1. B. telegraphs to A., " I have no objections to accepting 
for you at 3 or 4 months for $2,500." B. may be liable as ac- 
ceptor on bill for $3,500 at 4 months, drawn in pursuance of 
the authority.^ 

2. B. writes to A., "I authorize you to draw on me at ninety 
days from time to time, for such amounts as you may require, 
whole amount not to exceed $3,000." B. may be liable on a 
bill drawn in pursuance of the authority given.' 

Explanation 3. — The bill must be taken by the 
holder on the faith of such promise.* 
Illusteations. 

1. A. draws a bill on B. After it is received by C, B. writes 
to A. that he will accept the draft, and the letter is shown to C. C 
cannot hold B. as acceptor.^ Aliter, if before G. receives the 
bill, A. either shows him the letter or informs him of its contents." 

3. B. promises C. to accept a bill to be drawn by A. in his 
favor. D. discounts the bill so drawn, on the faith of B.'s 
promise to 0. to accept. B. subsequently refuses to accept. 
D. cannot hold B. as acceptor, since a promise to accept is a 
chose in action and not assignable.' 

1 Nelson v. Bank (1868), 48 111. S6 ; Bissell v. Lewis (1857), 4 Mich. 
450 ; Carnegie v. Morrison (1841), 2 Met. (Mass.) 381 at 406. 

^Parker v. Greele, (1829), 2 Wend. (N. Y.) 545; and Central Banky. 
Richards (1872), lOOMass. 413; Of. Coffman v. Campbell (1877), 87 111. 98. 

2 Ulster Bank v. McFarland (1843), 6 Hill(N. Y.), 432, S. C, 3 Den. 
653 ; Of. Barney v. Newcomb (1851), 9 Gush. 46, But see Boyce v. Ed- 
wards, (1830), 4 P«t. (U. S.) 111. 

"Coolidge v. Payson, (1817), 2 Wheat, (TJ. S.) 66; Pillans v. Van 
Mierop (1765), 3 Burr. 1663 ; Exchange Bank v. Rice (1867), 98 Mass. 
288 ; First Nat. Bank v. Pettit (1866), 41 111. 492 ; Steman v. Harrison 
(1862), 42 Pa. St. 49. Contra, Read v. Marsh (1844), 5 B. Mon. (Ky.) 8; 
Cf. Grant v. Hunt (1845), 1 C. B. 44. 

' Exchange Bank v. Rice (1867), 98 Mass. 288 ; Worcester Bank v. 
Wells (1844), 8 Met. (Mass.) 107 ; Ontario Bankv. Worthington (1834), 
12 Wend. (N. Y.) 593. Cf. (1), Illustr. 5, supra, promise to pay. 

'Bank v. Ely (1837), 17 Wend. (N. Y.) 508: Leais v. Kramer 
(1852), 3 Md. at 289. 

■■ Worcester Bank v. Wells, supra ; M'Evers v. Mason (1813), 10 
Johns. (N. Y.) 207 ; Carr v. Bank (1871), 107 Mass. 45 at 48. 



luisre 
'orra. 



46 



BILLS OF EXCHANGE. 



[AET. 33-34. 



Eequisites 
in torni. 



Undated 
acceptance 



Time of 
acceptance. 



Note. — Is there any distinction between B.'s promise to the 
drawer to accept, and his promise to pay, an existing bill ? 
Many of the cases seem to regard them as the same, and gov- 
erned by like rules, though a careful examination of the cases 
will show that no Court has decided that a promise to pay an 
existing bill was not, an acceptance.' When B. accepts he 
thereby promises to pay the bill ; therefore, when he -promises 
to pay, he thereby, in eifect, accepts the bill, and does not 
merely agree to'accept. On what ether ground can the cases 
cited below be reconciled ? ^ 

Art. 33. An'acceptance need not be dated. 

JExplanation. — In the case of a Bill of Exchange 
payable after sight, the acceptance should be dated, 
but extrinsic evidence is admissible to show on what 
date an undated acceptance was given.^ 

Note. — French Code, Art. 133, provides that if a bill be 
payable after sight and the acceptance be not dated, time runs 
from the date of the bill ; but see Nouguier, § 498. 

' Art. 34. A Bill of Exchange may be accepted — 
(1.) Before it has been signed by the drawer, or 
while otherwise incomplete ;* 
(2.) After it is overdue ;^ 
■ (3.) After it has been dishonored by a previous 
refusal to accept, or by non-payment, followed 
by protest.® 

' Cf. iMgme v. Woodruff (1860), 29 Ga. 648 ; Overman v. Bank 
(1862), 30 N. J. L. at 68 ; Carr v. Banh, (1871), 107 Mass. 45. 

2Cf. Jones V. Bclnk (1864), 84 lU. 313, with First Nat. Banh v. Pettit 
(1866), 41 111. 492, and Nelson v. Bank (1868), 48 HI. 36. Cf. Spalding 
V. Andrews (1864), 48 Pa. St. at 413, with Stem.an v. Harrison (1862), 
42 Pa. St. 49, and Howland v. Carson (1850), 15 Pa. St. 453. See Edson 
V. Fuller (1850), 2 Fost. (N. H.) 188. 

"Kenner v. Creditors (1830), 1 La. (0. S.) 120 ; and Cf. Arts. 15, and 
158, n. 

* Harvey v. Cane (1876), 84 L. T. N. S. 64 ; and Art. 23. 

' Spalding v. Andrews (1864), 48 Pa. St. at 413 : Williams v. Winans 
(1834), 2 Green (N. J.), 339. 

^Stochwell V. Bramble (1852), 3 Ind. 428 : Cf. Christie y. Peart (1841), 
7 M. & W. 491, and Art. 167. ■ 



AET. 35-36.] FORM AND INTEEPEETATION. 47 

IlLUSTEATIONS. Time of 

acceptance. 

1. A. draws a bill on B., dated January 1, payable one month 
after date. C, the holder, presents it for acceptance in March. 
B. accepts. As regards B., this is a valid acceptance of a bill 
payable on demand.' 

2. The holder of a bill payable one month after sight pre- 
sents it to the drawee for acceptance. Acceptance is refused. 
A week after, it is re-presented, and accepted. The accept- 
ance is valid.^ 

Note. — "When a bill payable after sight is refused accept- 
ance, and then subsequently accepted, the now uniform prac- 
tice is to ante-date the acceptance to the day the bill was first 
presented.' 

Art. 35. Unless the contrary appear, a Bill ofpresumption 
Exclianffe is prima facie deemed to have been ac-u'ndatcciac- 

^ i- ^^ ^ ^ , ceptance. 

cepted before maturity and within a reasonable time 
after its issue, but there is no presumption as to the 
exact time of acceptance.* 

Illusteatioit. 
B. accepts, without dating, a bill .drawn payable three 
months after date. He attains his majority the day before the 
bill matures. This is primd facie evidence that B. accepted it 
while an infant.^ 

Art. 36. An acceptance must not express that the Acceptance 
acceptor will perform his contract by any other means p^^y money. 
than the payment of money.® 

Illusteation. 

A. draws a bill on B. for $100. B. accepts it, " payable in 
goods." This is invalid.' 

1 Mufford V. Walcott (1698), 1 Ld. Raym. 514 ; Cf. Art. 201 n. 

2 Wynne v. Eaikes (1804), 5 East, 514 ; Cf. Grant v. Shaw (1820), 16 
Mass. 341. 

'- But a. Mitchell V. Degrand (1817),! Mason (C. Ct.) 176. 
'Boberts v. Bethell (1852), 12 C. B. 778 ; Mason v. Dousay (1864), 35 
111. at 433; Cf. Art. 132. 
'Id. 

'Eussell V. Phillips (1850), 14 Q. B. 891 ; Cf. Art. 10 Expl. 3. 
'Id.; Cf. Boehmsr. Garcias (1807), 1 Camp. 425. 



48 



BILLS OF EXCHANGE. 



[AET. 37. 



Acceptance 
must be to 
pay mone* 

Drawee oiily 
can accept. 



Note. — ^When the time of payment comes, the holder may, 
of course, accept goods in satisfaction of the debt due to him. 

Art. 37. The acceptance of a Bill of Exchange by 
any person other than the drawee is invalid. 
Exception. — 'Acceptance for honor. (Art. 42.) 
Illustrations. 

1. Bill addressed to B. X. writes an acceptance on it. X. is 
not liable as acceptor.' 

2. Bill addressed to B. B. accepts it. X. also writes an ac- 
ceptance on it. X. is- not liable as acceptor.^ 

3. Bill addressed to the "Directors of the B. Company." 
The acceptance is signed by two directors and the manager. 
The manager is not liable as acceptor.' 

Note. — If a person other than drawee write an acceptance 
on the bill, his liability will be determined by the same rules 
as the ease of irregular indorsements.* See Art. Ill, n. 

Can a Case of need accept otherwise than suprd, protest f 
On the Continent he cannot. Byles and Parsons seem to think 
that under English law he may ; but see Chitty on Bills, 10th 
ed. 114. The uniform practice is for him to accept suprSb protest. 

Explanation 1. — When a Bill of Exchange is ad- 
dressed to two or more drawees, whether partners or 
'not, any one of them may accept so as to bind him- 
self^ 

ILLUSTRATION'S. 

1. A bill is addressed to B. & Co. X., a partner in that firm, 
accepts it in his own name. He may be liable as acceptor.' 

3. A bill is addressed to B. and X. B. alone accents. He is 
liable as acceptor.' 

1 Davis 1. Cia'/he (1844), 6 Q. B. 16 ; May v. Kelly (1855), 27 Ala. 497. 

''JacJesonv. Hudson (1810), 2 Camp. 447 : Smith v. Lochridqe (.1871), 
8 Bush (Ky.), 424. 

^Bult V. Morrell (1840), 12 A. & E. 745. 

« Walton V. Williams (1870), 44 Ala. 347. 

» Oicen V. Von Ulster (1850), 10 C. B. 318 : Heenan v. Nash. (1863), 8 
Minn, at 411. 

« Id. ; TomhecJcbee Bank v. Dumell (18281 5 Mason (C. Ct.) 56 ; Cf. 
Cunningham v. Smithson (1841), 12 Leigh (Va.), 32. Contra, Heenan 
V. Nash, supra. 

'Id. 



AET. 37.] [ FORM AND INTERPRETATION. 49 

Note. — If a bill is addressed to a firm, an acceptance by a Drawee onty 
partner in his. individual name may bind the firm,' in the ab- ''°'" '"='^P'- 
sence of statutes requiring an acceptance to be signed by the 
acceptor.^ 

• Explanation 2. — A. Bill of Exchange may (proba- 
bly) be accepted by the draweein any. name he chooses 
to adopt.* 

iLLTTSTEATIOlfS. 

1. A bill is addressed to B. His wife accepts it, signing 
her name " Mary B." B. promises to pay the bill. He is 
liable as acceptor.* 

3. Bill addressed to B., who is a partner in the firm of X. & 
Co. B. accepts it in the fi.rm name, B, personally is liable as 
acceptor.^ 

Explanations. — In construing an acceptance, the 
address to the drawee and the acceptance must be 
read together. 

Illusteations. 

1. A bill is addresssed to the B. Company, Limited. Two 
of the directors accept it, signing thus : " X, & Y,, directors of 
the B. Co., Limited." This is an acceptance by the company.' 

% A bill is addressed to " B., general agent of the X. Com- 
pany." He accepts it thus : " Accepted on behalf of the Com- 
pany — B." B. is personally liable as acceptor.' 

3. A bill is addressed to " X. & Co." The proper style of 

^ Mason v. Rumsey (1808), 1 Camp. 304 ; Tolman v. Hanrahan (1878) 
4A Wis. 133. 

2 Heenan v. Nash,(18eS), 8 Minn. 407. But Of. Yorkshire Bankina 
Co. Y.Beatson (1879), 4L. R. C. P. D. 204. J^anmng 

' Lindus v. Bradwell (1848), 5 C. B. at 591 ; Ala. C. M. Co v Uraiti, 
ard (1860), 35 Ala. 476 ; Cf. Art. 71, Expl. 2. 

*Id. 

^NicholU V. Diamond (1853), 9 Exch. 154; Cf. Art. 72. Einl 3 Con- 
tra, Markham v. Hasen (1873), 48 Ga. 570. i' o. ,. un 

6 Okell V. Charles (1876), 34 L. T. N. S. 822, C. A. 

' Herald .v. Connah (1876), 34 L. T. N. S. 855 ; Mare v. Charles (18561 
5. E. & B. 978. Contra, Markham v. Hazen, supra. 



50 



BILLS OF EXQHANGE. 



[aets.38 -39 



Drawee only 
can accept 



General 
or obsolute 
acceptance. 



Qualified 
acceptance. 



the firm is " B. X. & Co.," and it is accepted in that name. 
This is a valid acceptance.' 

4. B. accepts a bill blank as to drawee. This is an admis- 
sion that he was the person intended, and he is liable as ac- 
ceptor.* 

Note. — In the case of signatures by agents, there is this dis- 
tinction between a bill and a note. A bill can only be ac- 
cepted by the drawee ; so either the drawee is liable as accept- 
or, or no one is liable, and the rule of construction is ^Ct res 
magis valeat guam pereat. When the point arises on a note, 
the only question is whose is the signature — is it the signature 
of the principal or of the agent ? ^ 

Art. 38. An acceptaace may be — (a), General, or 
— (6), Qualified.* A General or Absolute acceptance 
assents without qualification to the order of the 
drawer. The form of words used is immaterial.® 

Note. — The holder of a bill is entitled to an absolute ac- 
ceptance : Art. 158 ; Cf. Art. 58, as to construction. 

Art. 39. A Qualified acceptance varies the effect 
of the bill as drawn ; therefore an acceptance is quali- 
fied which is, 

(1;) Conditional — *. e., which makes payment by 
the acceptor dependent on the fulfilment of a 
condition therein stated. 

iLLtrSTEATIOJfS. 

1. The drawee of a bill accepts it. " Accepted — payable on 
giving up bills of lading for clover, per ship ' Amazon.' " ' 

2. Or, " Accepted — rpayable when in funds." ' 

> Lloyd V. AsUy (1831), 2 B. & Ad. 23. 

2 Wheeler v. Webster (1850), E. D. Sm.'l. 

8 Cf. Alexander v. Sizer (1869), 4 L. R. Ex. at 105. 

*Rowe V. Young (1820), 2 Bligh, 391 H. L.; Hough v. Lorinq (1837), 
24 Pick. (Mass.) 254. 

'Id. at 454. 

^ Smith Y. Virtue (1860), 30 L. J. C. P. 56 ; Cf. Swan v. Cox (1814), 1 
Marsh. 170 ; Be Howe (1871), 6 L. R. Ch. 838 : Lamon v. French 
(1869), 25 Wis. 37. 

'Id.; Julian v. Sherlrooke (1754), 2 Wils. 9j Wintermute y. Post 



AKT. 39.] FORM AND INTERPRETATION. 5X 

Note. — The condition as between immediate parties, may Qualified 
be written on separate instrument, though absolute on the °'*^°®^ ^^'^' 
bill.' 

(2.) Partial, or restricted as to amount. 

IlXUSTEATIOlfS. 

1. A. draws a bill on B. for $100. B. accepts it as to $50, 

2. A. draws a bill on B. for $100. B. accepts it, payable 
half in money, half in goods. This is valid as a qualified ac- 
ceptance for $50.' 

(3.) Local, or restricted as to place of payment. 

IrXtrSTBATlONS. 

1. Bill addressed to " B. of N. Y. City ," is accepted paya- 
ble at Albany, N. Y. This is a qualified acceptance. 

3. Bill addressed to " B. of N. Y. City," is accepted paya- 
ble at the X. Bank, N. Y. City. This is a general acceptance." 

Note. — As to the effect of drawing a bill payable st a par- 
ticular place, see Art. 172. 

(4). Qualified as to time. 

Illusteations. 

1. A. draws a bill on B., payable two months after date, 
B. accepts it, payable six months '^fter date.' 

2. A. draws a bill on B., payable at sight. B. accepts it 
" payable in fifteen days." ' 

3. B. accepts a bill drawn on him, " on condition that it be 
renewed," for six months.' 

(1854), 4 Zabr. (N. J J <vt 423 ; Pope v. Heath (1859), 14 Cal. 403 ; Crow- 
ell V. Plant (1873), 53 Mo. 145. Aliter, if drawn payable "if in fimds," 
Kemlle v. ImU (1843), 3 McL. (C. Ct.), 272. 

^Ford V. Angelrodt (1865), 37 Mo. 50. 

»Cf. Wegersloffs v. Keene (1709), 1 Stia. 214. 

^PetU V. Benson (1697), Comb. 452 ; Cf. Rowe v. Toimq, (1820, 2 
Bbghat409, H. L. '' 

* Walker v. Bank (1852), 13 Barb. {IS.'Y.) 636. 

« Troy Bank v. Lauman (1859), 19 N. Y. 477 ; Myers v. Standart 
(1860), 11 0. St. 29, 

'Russell V. Phillips (1850), 14Q. B. 891; Cf. Fdnshawe v. Pea*(1857), 
26 L. J. Ex. 314. ^ " 

'•Hatchers. Stalworth (1853), 25 Miss. 376. 

'Russell v. Phillips, supra. 



52 BILLS OF EXCHANGE. [art. 40, 

acct™ance (^") "^"'"^ acceptancG of some one or more joint 

drawees, but not of all. 

^ Illusteation. 

Bill drawn on B., X., and Y- B. accepts. X. and Y. refuse 
to accept. This is a qualified acceptance.' 

NoTE.-^ — German Exchange Law, Art. 33, admits a partial 
acceptance, but makes any other qualification a refusal to ac- 
cept. French Code, Art. 134, prohibits a conditional, but ad- 
mits a partial acceptance, directing the holder to protest the 
bill as to the residue. England and the United States seem 
to be the only countries that allow of conditional acceptance. 
Cf. Art. 10 ; and Art, 371.. 

EffiectofqMii- Art. 40. A Qualified acceptance is valid as re- 

anoe. gards the acceptor and all subsequent parties, and as 

regards prior parties wbo assent thereto. A prior 

party (drawer or indorser) who does not authorize or 

assent to it is (probably) discharged.^ 

Note. — In Roree v. Toung,^ the judges difi"ered in opinion 
as to the efi«ct of taking a qualified acceptance without the 
consent or subsequent assent of prior parties, some thinking 
that prior parties would only be discharged if it could be 
shown that their rights were injuriously affected, others think- 
ing that they would be ipso facto discharged. See by way of 
analogy Arts. 348, 349 on Alterations. Suppose the holder 
takes a qualified acceptance. All admit that he must give no- 
tice to the drawer, If the drawer, on receipt of the notice, as- 
sent, or, perhaps, do not express his dissent, well and good. 
But is he not entitled to say, " You have altered my contract 
behind my back, I am no longer a party to it? Nan hmc in 
fcedora veni. If the drawee do not in terms assent to my 
, order. I am ecititled to notice of dishonor, and notice of dis- 

honor includes A demand of payment. This you cannot give." 
Can the holder reply, " The drawee is to some extent your 
agent, and the altered contract was entered into for your 
benefit ? " Surely not. 

^Bylea, p. 186,citingMarius: 16 N. T. Draft Code, § 1784 : Nouguhr, 
§ 451. 

^Eoicey. Young {1820), 2 BUgh, 391, H. L., third question to judges 
and answers thereto. Cf. Whitehead v. Walker (1842), 9 M. & W. at 
509 i Walker v. Bank (1852), 13 Barb. (N. Y.) 636. 



AET. 41-43.] FORM AND INTERPRETATION. 03 

Acceptance for Honor supra Protest. 
Art. 41. A Bill of Exchange may be accepted for -what buis. 

honor supra protest, wliicli has been — 
(1.) Dishonored by non-acceptance ;^ or 
(2.) Protested for better security after acceptance,^ 
Art. 42. Any person, not being a party already wh^ may 

liable thereon, may, with the consent of the holder/ i""it"' 

intervene and accept such bill after protest, for the 

honor of the drawer or an indorser.* 

Illusteation. 

Bill dishonored by non-acceptance. The drawee, or a 
stranger to the bill, may accept it for the honor of the drawer 
or an indorser.' 

Note. — But if the drawee is under obligation to accept, he 
cannot acquire any different rights by accepting suprd pro- 
test.^ This kind of acceptance is not common in America. In 
France and Germany the rule is that if two or more persons 
are willing to accept suprh protest, the holder must take the 
acceptance of the person whose payment will enure for the 
benefit of most parties.' Beawes, No. 42, says that if a bill be 
accepted for the honor of an indorser, there may be another 
acceptance suprd, protest for the honor of any party prior to 
him. This is not resorted to in practice ; but if the acceptor 
suprdi protest fails before the maturity of the bill, a second ac- 
ceptance suprd, protest is sometimes obtained. 

Art. 43. It is optional with the holder to take or Holder's op- 
refuse an acceptance supra protest.^ 

^Mutford V. Tro?co«(1698), 1 Ld. Raym. 575 ; French Code, Art. 126 ; 
German Exchange Law, Art. 56. 

^ Ex parte Wacherbath (1800), 5 Ves. Jr. 574 ; Cf. Art. 183. 

3 ByUs, p. 266 ; Chitty, pp. 243, 244 ; Story ;■ Beau-es, No. 87. 

''Hoare-v. Cazenove (1812,) 16 East, 391 ; Desha v. Stewart (1844), 6 
Ala. 852 ; French Code, Art. 125 ; German Exchange Law, Arts. 56-61. 

'Swope V. Ross (1861), 40 Pa. St. 186; Beawes, No. 32 ; Nouguier, 
§ 574. 

« ScMmmelpennich v. Bayard (1828), 1 Pet. (U. S.) 264. 

' Nouguier, § 575 ; German Exchange Law, Art. 56. 

'Byles, p. 266 ; Chitty, pp. 243, 244 ; Story ; Beawes, No. 37. Cases 
cited by these authors do not seem in point. 



54 



BILLS OF EXCHANGE. 



[art. 44r-45. 



Holder's 
option. 



Time of ac- 
ceptance for 
honor. 



Form of ac- 
ceptance for 
honor. 



Exception. — When the drawer of a foreign bill 
gives a reference to a Case of need, and by the law of 
the place where such bill is drawn presentment to the 
Case of need is obligatory, the holder (perhaps) can- 
not refuse to take the acceptance supra protest of 
such Case of need,^ 

Note. — By German Exchange Law, Art. 57, if the bill eon- 
tain a reference to a Case of need, the holder is bound to pre- 
sent the bill to hitn ; in other cases he may refuse acceptance 
suprd protest. Under French Code, Art. 136, the holder, per- 
haps, cannot in any case refuse. 

Art. 44. An acceptance supra protest may be 
given at any time after the bill has been protested 
and before it is over-due. 

Explanation. — A bill noted for protest is deemed 
to be protested.^ 

iLLUSTEATIOlir. 

Bill payable one month after sight is protested for non-ac- 
ceptance. It may be accepted suprd, protest eight days after- 
wards.' 

NoTE.^-In France, perhaps, the acceptance for honor must 
be given at the time the bill is protested : N'ouguier, § 570. 

Art. 45. An acceptance supra protest must be in 
writing on the bill, signed by the acceptor, and duly 
attested by a notarial act of honor.* 

iLLUSTItATIOM'. 

The acceptor for honor writes on the bill, " Accepted suprct 
protest for the honor of C, and will be paid at my office if 
regularly presented when due ; " or, "Accepted under protest 
for the honor of A., and will be paid for his account if refused 

'Cf. Art. 184. 

^Geralopulo v. Wiehr (1851), 20 L. J. C. P. 105". 
8 Cf. WtlUams v. Gefmaine (1827), 7 B. & C. 468. 
«Cf. Gazzam v. Armstrong (1835), 3 Dana (Ky.), 554 ; Byles, p. 265 ; 
Chitty, p. 244 ; Story ; Brooks'' Notary, 4 ed., p. 93. 



AET. 46-48.] FOBM AND INTERPRETATION. 65 

when due and regularly protested.'" Or simply, « Accepted, ^0™,^^^°-^ 
S. P." He then signs. i'""'"^- 

Note. — By German Exchange Law, Art, 58, the acceptance 
supr& protest is to be recorded in an appendix to the protest. 
By French Code, Art. 126, the acceptance supr& protest must 
be recorded in the protest, and the protest signed by the 
acceptor: Cf. "Ifouguier, §570." In England the notarial 
act, in this case called an " act of honor," is appended to the 
protest. A "notarial act" means "any instrument, indorse- 
ment, note, or entry made or signed by a notary public in the 
execution of the duties of his office."" It was formerly the 
practice for the acceptor stiprit protest to appear personally 
before the notary with witnesses, to declare for whose honor 
he accepted. Modern custom no longer requires this.' A 
clerk is usually sent to the notary. 

Art. 46. Thiere may be an acceptance supral^^^<^j^^ 
protest for part of the amount of tlie bill.* '''"'"• 

Art. 47. An acceptance supra protest gbould^^^^ii^p*''"^ 
state for whose honor it is given. If it do not, it is 
deemed to be given for the honor of the drawer.* 

Art. 48. An acceptance supra protest (probably) ce^Tancefor 
suspends until non-payment the holder's right of ^°'^°''' 
action, which arises on non-acceptance.® 

Note. — Query, if in some cases the right of action be not 
taken away and not merely suspended, but the point has not 
been judicially discussed. On -psbynxent suprd protest, or dis- 
honor at maturity, new rights and obligations arise : Cf. Art. 
344. By French Code, Art. 138, the holder's rights against 
the drawer and indorsers are not affected by an acceptance 
suprd protest ; but then the holder has no right of action until 
the maturity of the bill : he can only demand security : Cf. 
Art. 157. By German Exchange Law, Art. 61, the holder is 
entitled to demand security from parties prior to the party for 
whose honor the acceptance is given. 

'Cf. Mitchell v. Baring (1829), 10 B. & C. 4; Howland v. Carson 
(1850), 15 Pa. St. 453. 

"Indiau Stamp Act, 1870, § 3. 

^Brooks' Notary, iedi..-^. 94:. 

■•Id. p. 97. 

* Gazzam v. Armstrong (1835), 3 Dana (Ky.), 554 ; CJiittt/, p. 243 ; 
Daniel, § 525 ; German Exchange Law, Art. 59 ; Nouguier, § 578. 

«Cf. Williams v. Germaine (1827), 7 B. & C. at 477 ; Chitty, p. 238. 



56 BILLS OF EXCHANGE. [akt. 49. 

Sigv^ature. 
Sufficiency Art. 49. "Signature" means tlie writinsj of a 

in form. i -m . n i • 

person s name on a Dill, in order to authenticate, and 
give eflfect to some contract thereon. (Cf. Art. 52.) 

Exphnation. — A signature suflScient in point of 
form in the case of an ordinary contract is (perhaps) 
sufficient in the case of a bill. 

Illusteations. 

1. A signature in pencil is sufficient.' 

2. A lithographed signature, or a signature impressed with 
a stamp, is (perhaps) sufficient.' 

3. A note in the form, " I, J. B., promise, et cet.^ is suffi- 
ciently signed, though the usual form is, " I promise, et cet.,^' 
signed J. B.' 

4. Bill drawn in the form, " Mr. A. requests Messrs. B. & 
Co., et cet." This is (probably) a sufficient signature by the 
drawer.* 

5. A bill under seal, without signature, is not sufficiently 
signed, unless the contrary be provided by statute.' 

6. A signature made by another person, but attested by 
mark, is sufficient.' 

7. John Smith, payee, indorses the figures " 7, 2, 8," on the 
back of the note, intending thereby to indorse. This is a 
valid indorsement.' 

Note. — ^When a statute requires a document to be signed, 

1 Geary v. Physic (1826), 5 B. & C. 234 ; Seed v. Roark (1855), 14 
Tex 329 

2 Cf. Ex parte Birmingham BanJcing Co. (1868), 8 L. R. Ch. at 653, 
654. 

» Taylor v. Dobbin (1719), 1 Stra. 399. 

" Cf. Rvff V. Webb (1794), 1 Bsp. 129. As to documents other than 
bills, Caton r. Caton (1867), 2 L. R. H. L. at 143. 

^Byles, p. 68 ; Story, § 61; Cf. Art. 278. Note of corporation. As to 
kind of bond formerly known as a " single bill" or ''bill under seal," 
and sometimes confused with a bill of exchange, Cf. Bmik of England v. 
Anderson (1837), 3 Bing. N. C. at 621 and 658. 

« George v. Surrey (1830), M. & M. 516 ; Shank v. Butsch (1867), 28 
Ind. 19. 

"• Brown v. Butchers' Bank (1844), 6 Hill (N. Y.), 443. 



ART. 60-52.] FORM AND INTERPRETATION. 67 

not subscribed,' a mere mark,' or initials,' or a stamp,* if in- Sufficiency 
tended as signatures, are sufficient ; and it is immatBrial in ™ °'™' 
what part of the document the name is introduced, provided it 
govern the whole.^ But legal analogies must be applied with 
caution to bills which are the creation of custom, and where it 
is of the' utmost importance that a oleax title should appear on 
the face of the instrument. In America the rule is lax. By 
German Exchange Law, Art. 94, signature by mark is in- 
sufficient unless made before a notary. 

Art. 50. A corporation is bound by its signature signature of 

J^ JO corporation or 

to a bill, without the addition of the corporate ''""'P^'^y- 
seal.^ 

NoTB. — In order to determine whether a oornpany or other 
corporation is liable on a bill, three questions must be asked : 
1. Has the company the requisite capacity to bind itself by a 
Mil ?' (Art. 67.) 2. Is the signature on the bill sufficient in 
form to bind the company ? * 3. Was the signature placed 
there by a person having authority to sign bills for the com- 
pany ? It is immaterial that a person who acts within the 
apparent scope of his authority in signing bills exceeds or 
contravenes private instructions.' See, also, Art. 75, and 
note. 

Art. 52. When a person is induced by fraud to unintentional 

, , signature. 

sigti a bill under the belief that he is signing a 
wholly different instrument, his signature is null and 

1 Vielie V. Osgood (1849), 8 Barb. (N. T.) 130. 

^Baher v. Dening (1838), 8 A. & E. 94 ; WUloughly r. Moulton 
(1866), 47 N. H. 205 ; HUhorn v. Alford (1863), 22 Cal. 482. 

« Caton V. Caton (1867), 2 L. R. H. L. 143 ; Palmer v. Stephens (1845), 
1 Den. (N. Y.)471 ; Merchants Bank v.Spicer (1831), 6 Wend. (N. T.), 
443. 

* Saimderson v. Jaehson (1800), 2 B. & P. 238 ; Boardman v. Spoon- 
er (1866), 13 Allen (Mass.), 353. 

^Schmidt v. Schmaelter (1870), 45 Mo. 502 (maker signed on hack of 
the note) ; Lincoln v. Hinzey (1869), 51 111. 435. 

^ Of. Crouch V. Credit Fonder (1873), 8 L. R. Q. B. at 382 ; Matt v. 
Hicks (1823), 1 Cow. (N. T.), 513; Hamilton v. R. R. (1857), 9 
Ind. 359. 

'Grant on Corp. p. 61; Bank v. Dandridge (1827), 12 Wheat. 
(U. S.) 64. 

^Lindus v. Melrose (1858), 3 H. & N. 177, Ex. Ch. ; approved, Button 
V. Marsh (1871), 6 L. E. Q. B. 361. Cf. Art. 76. 

" Re Land Credit Co. (1869), 4 L. R. Ch. Ap. 460. As to the powers of 
de facto directors, Cf. Mahony v. East Holyford Co. (1875), 7 L. R. H. 
L. 869. 



5B BILLS OF EXCHANGE. . [aet. 63. 

^nmtenHonai yoid, provided that in so signing lie acted without 
negligence.-"- 

Illtjsteations. 

1. D., an old man with enfeebled sight, is induced to sign 
his name on the back of a bill, by being told that it is a railway- 
guarantee -which he had promised to sign. The bill is negoti- 
ated to a bond fide holder. D. is not liable as an in- 
dorser.'' Aliter, if able and opportunity to read the instru- 
ment, but relies on payee for statement of its contents, as he 
is guilty of negligence.' 

2. B. is induced, by fraud, to sign a negotiable note as 
maker, believing it to be a non-negotiable note for a less sum. 
It is negotiated to a bond fide holder. Negligence is nega- 
tived. B. is not liable.* 

Note. — Frauds of this sort are more common in America 
than in England, owing to the absence of stamp la-ws. 



. Delivery 
necessary. 



DeKver'^. 

Art. 53. Delivery is the necessary complement of 
every contract on a bill, be it drawing, making, ac- 
ceptance, or indorsement ; and ihatil delivery be made 
the contract is inchoate and revocable.^ 

Explanation. — Delivery means transfer of posses- 

^ Foster v. Machinnon (1869), 4 L. R. C. P. 704; Briggs v. Ewar 
(1873), 51 Mo. 245 ; Rossy. Doland (1876), 29 0. St. 473; CUne v. 
Chithrie (1873), 42 Ind. 227 ; Butler v. Carns (1875), 87 Wis. 61 ; Hornet 
V. Hale (1874), 71 111 552. 

2 Id. ; Whitney v. Snyder (1870), 2 Lana. (N. T.) 477; Cf. SocUtS 
Gdnerale v. Bank (1873), 27 L. T. N. S. 849. 

3 Chapman v. Bose (1874), §6 N. T. 187 ; Swannell v. Watson (1874), 
71 ILL. i66 ; Winchell v. Crider (1876), 29 0. St. 480 ; Indiana Bank v. 
Weekerly (1879), 67 Ind. 845 ; Wright v. Fhjnn (1871), 83 la. 159 ; 
Shirts Y. Overjohn (1875), 60 Mo. 305. Contra, holdmg such failure to 
read not negligence, Anderson v. Walter (1876), 84 Mich. 479. 

« Griffiths v. Kellogg (1876), 39 Wis. 290 ; Cf. Taylor v. Atchinson 
(1870), 54 111. 196. 

" Cf. Ahrey v. Crux (1869), 5 L. R. C. P. at 42 ; Baxendale v: Bennett 
(1878), 3 L. R. Q. B. D. 525 ; Burson v. Huntington (1870, 21 Mich, 
415 ; First Nat. Bank v. Strang (1874), 72 111. 559. 



AET. 53.] FORM AND INTERPRETATION. 59 

sion, actual or constructive, from the obligor to the^|J^'^^ 

obligee. 

Illusteations. 

1. B., who is indebted to C, makes a note for the amount 
payable to 0. B. dies, and the note is afterwards found 
among his papers. 0. has no right to this note, and if it be 
given to him he cannot enforce it.' 

%. B. makes a note in favor of C, and delivers it to a stake- 
holder {e.g., trustee under composition deed). 0. thereby ac- 
quires no property in the note.^ 

3. C, the holder of a bill, specially indorses it to D. ; 0. 
transmits it by post to X., his own agent. X. informs D. that 
he has received the bill, but does not give it to him or undertake 
to hold it on his account. C. can revoke the transaction and 
cancel his indorsement to D.' 

4. 0., the holder of a bill, specially indorses it to D., and 
incloses it in a letter addressed to D. The letter, which is put 
in the office letter-box,. is stolen by a clerk of O.'s, who forges 
D.'s indorsement and negotiates the bill. The property in the 
bill remains in C* 

5. By the regulations of the English Post-office, a letter 
once posted cannot be reclairded. If, then, the indorser of a 
bill authorize the indorser to transmit it to him by post, the 
property in the bill passes to the indorsee, and the indorse- 
ment becomes complete as soon as the letter which contains 
the bill is posted ; if not so authorized, then as soon as the in- 
dorsee accepts such transfer.^ 

6. C, the holder of a note payable to bearer, wishes to re- 
mit money to D. For safety of transmission he cuts the note 
in half and posts one half to D. Before he posts the second 

1 Of. Bromage v. Ltoyd (1847), 1 Exch. 32 ; Clark v. Boyd (1825), 
2 0.56. 

2 Of. Latter v. White (1872), 5 L. R. H. L. 578. 

^Brind ^.Hampshire (1836), 1 M. & W. 365; Muller v. Pondir 
(1873), 55 N. Y.325 ; Richards v. Z>ars< (1869), 51 lU. 140. 

^Cf. Arnold v. Cheque Bank (1876), 1 L. K. C. P. D. at 584 : Ledwich 
V. McKim (1873), 53 N. T. 307. 

^ Ex parte Cote (1873), 9 L. R. C!h. 27'; Siehel v. Birch (1864), 2 H, & 
C. 956 ; Mitchell v. Byrne (1853), 6 Rich, L. (S. C.) 171 : Kirhman v. 
Bank (1865), 2 Cold (Temi.) 397. 



60 BILLS OF EXCHANGE. [aet. 53, 

Delivery half he changes his mind, and writes to D. demanding back 
the half he has sent. He is entitled to do so, for a partial de- 
livery is ineffectual.' 

7. . A bill is left -with the drawee for acceptance. The 
drawee writes an acceptance on it. The next day the holder 
calls for the bill : he is merely informed that it is mislaid, and 
is requested to call the next day. In the meantime the 
drawee hears that the drawer has failed. He accordingly can- 
cels his acceptance, and the next day delivers the dishonored 
bill back to the bolder. This no acceptance ; the drawee was 
entitled to cancel it.'^ 

8. C. & Co. are indebted to D, X. who is a partner in 0. & 
Co., and also agent for D., writes C. & Co.'s indorsement on a 
bill held by the firm, and puts the bill with some other papers 
of D., of which he has the custody. This is a valid indorse- 
ment by C. & Co., and the property in the bill passes to D.' 

Note. — In Illustration, 8 delivery is effected by transfer of 
the constructive possession, i. e., the actual possession remains 
unaltered, but it is continued in a different right. A person 
has the constructive possession of a thing when it is in the actual 
possession of his servant or agent on his behalf ; therefore de- 
livery may be effected without change of actual possession, in 
three cases ; 1. A bill is held by C. on his own account : he 
subsequently holds it as agent for D. 2. A bill is held by C.'s 
agent, who subsequently attorns to D., and holds it as his 
agent. 3. A bill is held by D. as agent for C; he subse- 
quently holds it on his own account.* There is this difference 
between an acceptance and the other contracts on a bill. The 
drawee has no property in the bill, therefore an attornment to 
the holder will be presumed on slight evidence, perhaps the 
mere intimation by the drawee of the fact that the acceptance 
has been written." 

f SwiUh V. Mundy (1860), 29 L. J. Q. B. 172 ; Cf, Redmayne v. Bur- 
ton (1860), 2 L. T; N. S, 324. 

^Banh v. Victoria Bank (1871), 3 L. R. P. C. 526 : Cf. Dunavan v. 
Flynn (1875), 118 Mass. 587. 

^LysaghtY. Bryant (1850), 9 C. B. 46 ; Cf. Grimm v. Warner (1876), 
45 la. 106. 

* Cf. in iUustiration Field v. Carr (1828), 2 M. & P. 46 ; Bosanquet v. 
Forster (1841), 9 C. & P. 659 ; Belcher v. Campbell (1845). 8 Q. B. 1. 
Cf. also Ancona v. Marks (1862), 31 L. J. Ex. 163, ratification of deliv- 
ery ; Ex parte Cote (1873), 9 L. R. Ch. 27, delivery by mistake and revo- 
cation by consent. 

'Cf. Cox V. Troy (1822), 5 B. & Aid. 474; approved Chapman v. 
Cottrell (1865), 3 H. & C. 857 j Art. 32 n. Foreign Laws. 



AET 54^-55.] FOSM AND INTEBPBETATION. 61 

Art. 64. As between immediate parties (Art. 88) , ^euvery by 
delivery in order to be effectual must be made by the 
obligor or bis agent. 

Illusteations. 

1. C, the holder of a bill, specially indorses it to D. He 
dies before delivering it, but his executor subsequently hands 
the bill to D. The indorsement to D. is invalid, for an ex- 
ecutor is not the agent of his testator. D. cannot sue on the 
bill.» 

3. X.,by means of a false pretense, or a promise or condition 
which he does not fulfill, procures A. to draw a check in favor 
of 0. X. delivers it to C, who receivfes it bond fide and for 
value. C. acquires a good title, and can sue A., for X. is os- 
tensibly A.'s agent.'' 

3. X, signs a note as surety, on condition that it shall not 
be delivered by B., the maker, to C, the payee, until signed 
by Y. as co-surety. X. is liable to a hondfide holder for value, 
though delivered contrary to the agreement.' 

4. A. draws a check payable to bearer, intending to pay it 
to X. It is stolen from his desk before he issues it, and is sub- 
sequently negotiated to C, who takes it for value and without 
notice. C. acquires a good title and can sue A.* 

Art. 55. As between immediate parties (Art. 88),g°gJ|'^™i 
a bill may be sbown to have been delivered condition- 
ally, or for a special purpose only, and not for the 
purpose of transferring the entire property therein.^ 

^Bromage v. Lloyd (1847), 1 Exch. 32 ; Clarh v. Sigourney (1846), 17 
Conn. 511. 

2Cf. Watson -v. iJitsseZ? (1862), 3 B. & S. 34, affirmed, 5 B. & S. 968 
Ex. Ch. ; aouU V. Segee (1856), 5 Duer (N. T.), 260 ; Fearing ^r. Clarh 
(1860), 16 Gray (Mass.), 74. Contra, unless maker estopped because 
negligent, Chipman v. Tucker (1875), 38 Wis. 43. 

^Dearsdorff v. Foresman (1865), 24 Ind. 481; Of. Gage v. Sharp 
(1867), 24 la. 15. Contra, if non-negotiable, Ayres v. Milroy (1873), 53 
Mo. 516. 

^Ingham v. Primrose (1859), 7 C. B. N. S. at 85 ; Cf. ClarJcey. John- 
son (1870), 54 111. 296 ; WorcesterBank v. Bank (1852), 10 Gush. (Mass.) 
488 (bank bHls). But Cf. Burson v. Huntington (1870), 21 Mich. 415 ; 
Baxendale v. Bennett (1878), 3 L. R. Q. B. D. 525. 

«Cf.Dj'MiZfv. Parser (1868), 5 L. R. Eq. at 137; Salmon v. Webh 



62 BILLS OF EXCHANGE. [aet. 55. 

Condraonai IlLUSTEATIOM'S. 

delivery. 

1. . B. makes a note payable to C, who sues him on it. B. 
can defend himself by showing that the note was delivered to 
C on condition that it was only to operate if he should procure 
B. to be restored to a certain office, and that B. was not s.o re- 
stored.' 

3. C, the holder of a bill, indorses it in blank, and hands it 
to D., on the express condition that he shall forthwith retire 
certain other bills therewith. He does not do so. D. cannot 
sue C, and if he sue the acceptor, the latter may set up the 
jvs tertii? 

3. C, the holder of a bill, indorses it specially to D., in or- 
der that he may get it. discounted for him, D., in breach of 
trupt, negotiates the bill to E. If E. take the bill bond fide 
and for value, he acquires a good title, and can sue all the par- 
ties thereto. If he do not so take it, he cannot sue C. ; and 
if he sue the acceptor, the latter may set up that the bill is 
C.'s ; ' further, C. can bring an action against E. to recover the 
bill or the proceeds.* 

4. C, the payee of a bill, indorses it to D. D. sues G. as 
indorser. C. may show that he and D. were jointly interested 
in the bill, and that he indorsed it to the latter to collect on 
joint account.' 

5. B. makes a note for $100 payable to C or order. C. 
sues B. Evidence is admissible to show that the note was 
given as collateral security for a running account,- and what 
the state of that account is.' 

Note. — Conjpare this Art. with the next. Escrow, — A 

(1852), 3 H. L. Cas. at 518 ; Benton v. Martin (1873), 52 N. T. at 574 ; 
Ihvejoy v. B^nh (1880), 23 Kans. 331. 

' Jeffries v. Austin (1725), 1 Stra. 674. Because a failure of considera- 
tion ? 

^Bell Y. Ingestre (1848), 12 Q. B. 317 ; Cf. Seligman v. Huth (1877), 
37 L. T. 488. Sed qu. See next note. 

^Lloi/d V. Howard (1850), 15 Q. B. 995 ; Cf. Barber v. Bichards 
(1851), 6 Exch. 63 ; Dale v. Gear (1871), 38 Conn. 15 : Chaddock v. 
Vanness (1871), 35 N. J. L. 517. See Art. 54. Dlustr. 3. 

"Goggerly v. Cuthbert (1806), 2 N. R. 170; Cf. Alsager v. Cloje 
(1842), 10 M. & W. 576 ; Mutty Loll v. Dent (1853), 8 Moore, P. C. 319. 

^Denton v. Peters (1870). 5 L. K. Q. B. 475. 

«Cf. EtmpoHe Twogood (1812), 19 Ves. 227 ; Be Boys (1870), 10 L. R. 
Eq. 467, and Art. 84. 



AET. 56.] FORM AND INTERPRETATION. 63 

deed delivered conditionally is called an escrow, and by anal- Conditional 
ogy the term is sometimes applied to bills. Neither can be ^ ^^'^' 
delivered as an escrow to the obligee or promisee, but only to 
a third party.' There is, however, this distinction : a deed 
delivered as an escrow cannot become operative until the con- 
dition is fulfilled ; but a bill so delivered becomes absolute in 
the hands of a bona fide holder for value without notice, 
whether the condition is fulfilled or not.^ When a bill is de- 
livered conditionally or for a special purpose, the relations be- 
tween the person who so delivers it and the person to whom it 
is delivered are substantially those of principal and agent.^ 
The person to whom it is delivered belongs, perhaps, to the 
class of agents called bailees ; * at least, if the terms bailor and 
bailee be used in the extensive sense given to them by Story, , 
in his work on Bailments. 



Constniction. 
Art. 56. The contracts on a bill, as interpreted Bnis are 

' ^ contracts in 

by the Law Merchant, are contracts in writing. Ex- ^"''"s- 
trinsic evidence is not admissible to contradict or vary 
their effect.* 

Explanation. — Evidence is admissible to impeach 
the consideration between immediate parties.® 

Exception. — ^The obligations of the parties to a bill 
may be released verbally and without consideration : 
Art. 239. 

Illusteation-s. 

1. The mere signature of the holder on the back of a bill 
(indorsement in blank) is a contract in writing to this effect : 
1. I hereby assign this bill to bearer. 2. I hereby undertake 

^Massman v. Holscher (1871), 49 Mo. 87 ; Stewarts. Anderson{\m), 
59 Ind. 875 ; Cf. McCramer v. Thompson (1866), 21 la. at 249. Contra, 
Bell V. Ingestre (1848), 12 Q. B. 317. 

"Art. 54; Whitmore v. Nicherson (1878), 125 Mass. 496. Contra, 
unless negligent, Chipman v. Tucker (1875), 38 Wis. 43. 

^Maguire v. Dodd (1859), 9 Jr. Ch. 452. 

*Cf. Lloyd yf. Howard (1850), 15 Q. B. at 1000, Erie, J. : Manley v. 
Boycot (1853), 2 B. & B. at 56, Ld. Campbell. 

^Abrey v. Crux (1869), 5 L. R. C. P. 37. 

« Id. at 45. See Art. 14, aad Chap. III. 



64 BILLS OF EXCHANGE. [aet. 66. 

Bills are that if the bearer duly present this bill, and it is not honored, 

contractein _ . . , ,. .,, . , •/■' i • i 

.Tvriting. I, on receiVing due notice, will mdemnily nim.' 

2. Parol evidence is not admissible to show that an indorser 
in blank, agreed to be absolutely liable,^ or that he indorsed to 
transfer title only and without recourse,' or that a restrictive 
indorsement was to be treated as a general indorsement.* 

3. A. draws a bill on B. in favor of C, and issues it to the 
latter, who gives value. A. thereby incurs the ordinary ob- 
ligations of a drawer. If B. dishonor the bill and 0. sue A., 
oral evidence cannot be admitted to show that A.'s liability as 
drawer was conditional on the performance of certain acts by 
C, and that C. had not done them.' 

4. Bill drawn in ordinary form. Action by payee against 
acceptor. Evidence is not admissible to show that it.was in- 
tended to be paid out of a particular fund which, is no longer 
available,^ or that a bill absolute in terms is in any other re- 
spect conditional.' 

5. Bill drawn conditionally (Art. 10.) Evidence is not 
admissible to show that the condition has been performed, and 
that therefore the bill is no longer conditional and invalid. A 
bill must be valid ab initio.' 

6. Parol evidence is ijot admissible to vary the time of pay- 

» Of. Suse V. Pompe (1861), 30 L. J. C. P. 75, at 80 ; Dale v. Gear 
(1871), 38 Conn. 15; Chaddoek v. Vanness (1871), 35 N.J. L. 517; 
Lovejoy v. Banh (1880), 23 Kans. 331 ; Shelton v. Dustin (1879), 92 lU. 
49 ; Prescott Banh v. Caverly (1856), 7 Gray (Mass.), 217. Contra, Boss 
V. Espy (1870), 66 Pa. St. 481 ; Harrison v. McKim. (1865), 18 la. 485, 
but see American Em. Co. v. Clark (1878), 47 la. at 675. 

2 Rodney v. Wilson (1877), 67 Mo. 123 ; Bigelow v. CoUon (1859), 13 
Gray (Mass.), 309 ; Bank v. Smith (1858), 27 Barb. (N. Y.) 489 ; Finky 
V. Green'{18Ti), 85 111. 535. Aliter of quasi-indorsements. Art. 217. 

3 First Nat. Bank v. Bank (1873), 20 Mimi. 63 ; Charles v. Denis 
(1877), 42 "Wis. 56. Contra, Harrison v. McKim. (1865), 18 la. 485 (be- 
cause a fraud ?) ; Commissioners v. Wasson (1880), 82 N. G. 808 ; Tay- 
lor V. French (1879), 2 Lea (Tenn.) 257. 

'Mechanics' Bank v. Packing Co. (1877), 4 Mo. Ap. 200 ; Third Nat. 
Bank v. Clark (1877), 23 Minn. 263. 

'Abrey v. CruiC (1869), 5 L. R. C. P. 37 ; Cf. Am. Em. Co. v. Clark 
(1878), 47 la. 671 ; Wood v. Surrells (1878), 89 111. 107. 

' Campbell v. Hodgson (1819), Gow. 74 ; Cf. Richards v. Richards 
(1831), 2 B. & Ad. at 464, 455. 

' Weaver v. Fries (1877). 85 IE. 356 ; McDonald v. Elfes (1878), 61 
Ind. 279 ; Jones v. Shaw (1878), 67 Mo. 667 ; Tower v. Richardson 
(1863), 6 Allen (Mass.) 351. 

'ColehanY. Cooke (1793), Willes. 397 ; Miller v. Ex. Stone Co. (1878) 
• Brad. (111.) 273. 



AET. 56'.] FORM AND INTEBPSETATION. 65 

ment,^ or amount payable,^ or to show an agreement not to Bills are 

' J- ./ ' o 1 1 J 1 contracts m 

negotiate a negotiable bill,' or that a bill for one hundred doi- writing. 
lars should be payable in goods or bank notes ; * but may 
show parol agreement as to place of payment of bill payable 
generally.' 

7. B. delivers to C. a note signed " B., Treasr. St. Paul's 
Parish." Parol evidence to show an agreement that the Parish 
should be liable and not B. personally, is inadmissible.' 

8. Bill in the ordinary form accepted by B. and held by D. 
'Evidence is admissible to show that D., after the bill was in- 
dorsed to him, was informed that B. had accepted the bill for 
the accommodation of X., and that D. gave time to X., the 
principal debtor, without the consent of B., the surety, thereby 
discharging the latter.' 

Note. — This Art. is hot inconsistent with Art. 55. The 
distinction is this : Evidence is admissible to show that what 
purports to be a complete contract in writing is merely an 
inchoate transaction ; but evidence is not admissible to vary 
the terms of an existing and complete contract in writing. 
The difficulty is to determine within which class a given trans- 
action falls.* As between immediate parties a contemporane- 
ous writing,' or a subsequent written agreement,'" may control 
the effect of a bill, subject to the same conditions that would 
be requisite in the case of an ordinary contract ; but the more 
fact that a bill refers to a collateral writing or agreement which 

iCf. Drain v. Harvey (1855), 17 C. B. 257 ; Heywood v. PerHn (1830), 
10 Pick. (Mass.) 228 ; Strachan v. Muxlow (1869), 24 Wis. 21. 

^Dauson v. Bank (1842), 4 Scam. (111.) 66 ; Cf. Besant v. Cross (1851), 
10 C. B. 895 ; St. L. Ins. Co. v. Homer (1845), 9 Met. (Mass.) 39 ; Mahan 
V. Sherman (1845), 7 Blaokf. (Ind.) 378. 

''KnoxY. Clifford (1875), 38 "Wis. 651. 

* Cox V. Wallace (1839), 5 Blackf. (Ind.) 199 ; Bradley v. Anderson 
(1833), 5 Vt. 152. 

= Cox v. Bank (1879), 100 U. S. 704, at 713. 

6 Tucker M. Co. v. Fairbanks (1867), 98 Mass. 101 at 104 ; Sturdivant 
V. H%M (1871), 59 Me. 172. Admissible if language ambiguous, Condon 
V. Pearce (1875), 43 Md. 83. Art. 76. 

' Overend v. Oriental Corp. (1874), 7 L. R. H. L. 348 ; HvUard v. 
Gurney (1876), 64 N. Y. 457 ; Cf. Niirre v. Chittenden (1877), 56 Ind. 
462 ; Imne v. Adams (1880), 48 Wis.—; Cf. Art 245. 

^E.g., compare the facts in Airey v. Crux, supra, with those in 
Holmes v. Kidd (1858), 3 H. & N. 891, Ex. Ch. 

9 Of. Brown v. Langley (1842), 4 M. & 6r. 466 ; Salmon v. Webb 
(1852), 3 H. L. Ca. 510 ; Maillard v. Page (1870), 5 L. R. Ex. 312 ; Davis 
V. Brown (1876), 94 U. S. 423 ; Wade v. Wade (1872), 36 Tex. 529. 

iOMcManus v. Bark (1870), 5 L. R. Ex. 65. 



BILLS OF EXCHANGE. 



[aet. 57. 



Bills are 
contracts in 
writing. 



Custom of 
trade. 



is conditional in its terms, will not vitiate the bill in the hands 
of a person who has no notice of its contents.* Cf. also Art. 9 
and Art. 14. 

Art. 57. Questions relating to bills, when not con- 
cluded by authority, are to be determined by the 
usage of trade, if such there be.^ 

Explanation 1. — The existence, nature, and scope 
of a given usage is a question of fact.^ 

Explanation 2. — ^A general usage once incorporated 
into a judicial decision becomes part of the Law Mer- 
chant, and evidence of custom to contradict it is inad- 
missible.* 

IlLUSTEATION'S. 

1. Bill indorsed "Pay C," omitting the words "or order." 
The Court of King's Bench having decided that such bills are 
still negotiable by indorsement, evidence that by custom they 
are not negotiable is inadmissible.' 

3. If a foreign bill be dishonored, the indorser is by the 
Law Merchant liable for the re-exchange. Evidence that by 
local custom the holder is entitled either to the re-exchange or 
to the amount he gave for the bill, at his option, is inadmissi- 
ble.« 

3. Action by customer against banker for not honoring a 
check. The banker may show that the check was marked 
" post dated," and that it is the custom of bankers in the City 
of London not to honor checks which are marked post dated.' 

, Note. — Goodwin v. Hobarts (1875),' is important, as show- 

» Jiiry V. Baher (1858), E. B. & E. 459 ; Tai/lor v. Curri/ (1871), 109 
Mass. 86. 

2 Goodwin v. Roharts (1875), 10 L. R. Ex. 337, Ex. Ch. As to allow- 
anceof grace, Mills v. Bank (1826), 11 Wheat. (U. S.) 431 ; Woodruff 
V. Bank (1841), 25 Wend. (N. Y.) 673 ; Morrison v. Bailey (1855), 5 0. 
St. 13. As to demand by notary's clerk, cf. Art. 177 n. See Daniel, 
% 623. 

'Id. 

* Id. at 357 ; Cf. Brandao v. Bamett (1846), 3 C. B. at 530, H. L.; 
Perkins v. Bank (1839), 21 Pick. (Mass.) 483. 

^Edie V. East India Co. (1761), 2 Burr. 1216. 

^Suse V Pompe (1860), 30 L. J. C. P. 75. 

"> Emmanuel v. Bofcarts, (1868), 9 B. & S. 121. 

«10 L. R. Ev. 337, afiBrmed, 1 L. R. Ap. Ca. 476. 



AET. 58. FORM AND INTERPRETATION. 67 

ing that the novelty of a general usage is no objection to its Custom of 
being incorporated into the Law Merchant, thereby to some **" 
extent overruling Grouch v. Credit F'oncier (1873), 8 L. R. Q. 
B. at 386. A particular or local usage must, it is coaceived, be 
proved de novo each time. When both authority and custom 
are silent, foreign law is usually resorted to as a. guide. See 
Introd., p. viii. 

Art. 58. When tlie terms of a bill are ambiguous, constraed 

'^_ favorably. 

the construction most favorable to the full validity of 
the instrument must be followed.-^ 

Illustrations. 

1. An acceptance will, if possible, be construed as absolute, 
not qualified, and a mere memorandum, inconsistent with such 
construction, is to be rejected as being no part of the accept- 
ance.^ 

3. The address to the drawee will be read in with the accept- 
ance, ut res magis valeat? 

3. Note in the form, " I promise not to pay." The word 
"not" will be rejected.* 

4. A note for "thee hundred dollars," payable on "the 
first of March, eighteen and sixty-eight," will be construed as 
a note for $300, payable March 1st, 1868.' 

5. Indorsement in the form, " Pay B., or order, value in ac- 
count with X." This is not to be construed as restrictive." 

6. Holder may treat an ambiguous instrument either as a 
bill or as a note at option.' 

7. Instrument invalid as a bill for not designating a drawee. 
If it be accepted, the holder may treat it as a note.' 

» Jfare v. Charles (1856), 5 B. & B. at 981, Ld. CampbeU. 

^Fanshawe v. Peo« (1857), 26 L. J. Ex. 814; Cf. Stone Y.Metcalfe 
(1815), 4 Camp. 217 ; Fitch v. Jones (1855), 5 E. & B. at 246 ■ US v 
Bank (1841), 15 Pet. (U. S.) 877 ; Coffman v. Campbell (1877), 87111. 98! 

' Mare v. Charles, supra ; Wheeler v. Webster (1850), 1 E. D Sm 
(N. Y.) 1. 

< Russell V. Langstaffe (1781), 2 Dougl. 514. 

^Burnham v. Allen (1854), 1 Gray (Mass.) 496, and Massie v. Belford 
(1878), 68111. 290." Cf. Ohm v. Young (1878), 63 Ind. 432: Deshony 
ie^er (1879), 7 Mo. Ap. 595. 

^Murrow v. Stewart (1853), 8 Moore, P. C. at 276. 

■•Edis V. Bury (1827), 6 B. & C. 433 ; Almtf v. Winslow (1879), 126 
^^3.38 342 3;t 344 

^Fielder v. Marshall (1861), 30 L. J. C. P. 158. Cf. Arts. 37 and 274. 



'68 BILLS OF EXCHANGE. Taet. 59. 

Conflict of Laws. 

f°qSsftes. ■^^^' ^^- "^^^ validity of a bill as regards requi- 

sites in form is (generally) determined by the law of 
the place of issue, and the formal validity of super- 
vening contracts, such as acceptance or indorsement, 
is (generally) determined by the law of the place 
where such contract is made.-"- 

Illusteations.. 

1. By German law a bill need not express the value re- 
ceived. By French law it must. A bill drawn in Germany on 
Paris, expressing no value, is (probably) valid everywhere.^ 

2. By the law of Illinois a verbal acceptance is valid. By 
the law of Missouri an acceptance must be in writing. A bill 
drawn in Illinois on St. Louis, in Missouri, payable there, is 
verbally accepted in Illinois. The acceptance is valid every- 
where.' 

3. X. writes his name on the back of a note made by B., 
payable to C, before its delivery to the payee. If signed in 
New York, but delivered in Boston, X. is liable as joint maker, 
according to the law of Mass., though by the law of New York, 
he is liable as indorser.* 

4. By French law a bill must not be drawn and payable in 
the same place. A bill, issued in France, is both drawn and 
payable in Calais. It is indorsed and sued on in England. It 
is (probably) invalid." 

■Exception.— ^S^en a bill drawn and payable in 
one country is negotiated in another, it is sufficient if 

> Cf. Gueprcdte v. Young (1851), 4 DeGr. & S. 217 ; Carnegie v. 
Morrison (IB41), 2 Met. (Mass ), 381 ; Mendenhall v. Gately (1862), 18 
Ind. 149 ; PMnney v. Baldwin (1854), 16 111. 108 ; German Exchange 
Law, Art. 85 ; Nouguier, §§ 1417-1427. 

'Stix v. Matthews (1876). 63 Mo. 371. 

^Scudder v. Union Bank (1875), 91 U. S. 406 ; Mason v. Dousay 
(1864), 35 III. 424. 

* Lawrence v. Bassett (1862), 5 Allen (Mass.) 140 : Cf. PaWersoii v. 
Carroll (1877), 60 Ind. 128. 

'Of. Bradlauqh v. DeRin (1868), 3 L. R, C. P. at 542; Bristow v. 
Sequeville (1850), 5 Exch. 275 • sed contra Wynne v. Jackson (1826), 2 
Russ. 351 and 634. 



AET. 60.] FOEM AND INTERPBETATION. 69 

the negotiation be valid in point of form according to J'o''^^igg 
the law of the former.^ 

Illustrations. 

1. An English note, payable to bears", is negotiated by de- 
livery in a country where this mode of transfer is not recog- 
nized. The title passes by such delivery.^ 

2. Foreign bonds payable to bearer pass by delivery in 
England, though by English law such a bond would not be as- 
signable.' 

Note. — The contract is made where delivery is effected, not 
where the signature is affixed.* But the place of delivery can- 
not -be shown to the prejudice of a holder without notice, e.g., 
note dated at Boston, and in hands of holder without notice of 
its delivery in New York, where it is void for usury.° A few 
foreign writers, among them Savigny, are of opinion that the 
maxim locris regit actum is purely facultative, never disabling. 
German Exchange Law, Art. 85, has gone a long way towards 
adopting this view. How far does the nationality of the 
parties enter into the question ? Suppose an Englishman 
abroad draws a bill payable in England, sufficient in form ac- 
cording to English law, but defective according to the law of 
the place where it is drawn, would it not be valid in Eng- 
land ? But if a bill bearing date from London was issued in 
France, it would probably be sufficient if it conformed to the 
formal requisites of English law. At present the law must be 
regarded as unsettled.* 

Art. 60. The inter;gretation of the drawing, in-jnterpre- 

dorsement or acceptance of a bill is (generally) deter- *°'''°"' 

mined by the law of the place where such contract is 

made. 

Illusteations. 

1. Action in England on a bill drawn and payable in 

1 Of. Bradlaugh v. DeRin (1S68), 3 L. R. C. P. at 542 ; se'd contra. 
Crouch V. Hall (1853), 15 III. 263. ' 

2 De la Chaiimetie v. Bank (1831), 2 B. & Ad. 385. Contra, Roosa v. 
Crist (1856), 17 111. 450. 

"Cf. Croiwh V. CreditFoncier (1873). 8 L. R. Q. B. at 384. 

^ Chapman v. Cottrel (1865), 34 L. J. Ex.' 186 ; Cook v. Litchfield 
(1851), 5 Sandf. (N. Y.) 3.30 ; Builer v. Mi/er (1861), 17 Ind. 77. 

s Towne v. Rice (1877), 122 Mass. 67 ; Lennia v. Ralston (1854), 23 Pa. 
St 137 

8 See Smith v. Mead (18-30), 3 Conn. 253 ; Rullard v. Thompson 
(1871), 35 Tex. 313; Grimshato v. Bender (1809), 6 Mass. 162. 



70 BILLS OF EXCHANGE. [aet. 60. 

iiiterpie- France and there indorsed in blank. The effect of such in- 
dorsement is determined by French law, i. e., it operates as a 
procuration.* 

2. A general acceptance given in Paris is (probably) to be 
interpreted according to French law.' 

3. Note made and payable in Scotland, in the form, " Pay 
C. 100?.," without adding the words " or order." By Scotch 
law such a note is negotiable, though by English law it is not. 
C, in England, can negotiate it by indorsement.' 

4. A bill drawn in Belgium^ on England is indorsed in 
France in blank. The indorsement is (perhaps) to be inter- 
preted according to French law.* 

Exception. — ^When a bill is drawn in one country 
and payable in another, expressions as to time and 
mode of payment are interpreted by the law of the 
place of payment.^ 

Note — It has been held that on a bill drawn and payable 
in England, but indorsed in France in form invalid there, but 
valid, by English law, the indorsee might maintain suit in Eng- 
land against the acceptor, whose contract is to be interpreted 
by English law ; but as between the indorsee and indorser, 
such indorsement would confer no right of action, being gov- 
erned by the law of France, the lex loci contractus." In Brad- 
laugh V. DeBin (ISiO), 5 L. R. C. P. 473, the Exchequer 
Chamber held that in the court below, and also in Lehel v. 
Tucker and Trimhy v. Vignier, the French law had been mis- 
taken, and that as regards the point raised — i. e., the right of 
an indorsee under a blank indorsement to sue in his own name 
— there was no conflict between the laws of France and 
England, but the principles laid down in those cases are not 
questioned. 

' Trimhif v. Viffnier (1834), 1 Bing. N. C. 151. 

= Cf. Don.v. Lipman (1837), 5 CI. & F. at 12 & 13 ; Freese v. Browmll 
(1871), 35 N.J. L. 285. 

^Rohertsonr.Burdehm{l^^), 1 Ross, Scotch L. C. 824; Cf. How- 
enstein v. Barnes (1879), 5 Dillon (C. C), 482. 

* Bradlaugh v. DeEin (1868), 3 L. R. C. P. 538 ; Cf. Everett v. 
Vendryes (1859), 19 N. Y. 436. 

f^Arts. 13 and 20. See, too, the duties of the holder: Arts. 180, 
202. 

« Lelel V. Tucker (1867), 3 L. R. Q. B. 77 ; Cf. Nichok v. PoHer 
(1868), 2 W. Va. 13. 



CHAPTER II. 

CAPACITY AND AUTHORITY OF PARTIES TO A BILL. 

Capacity. 

Art. 61. Capacity to incur liability as a party to a General 
bill is coextensive witb capacity to trade and incur 
trade debts : 

Capacity to indorse a bill for the purpose of au- 
thorizing the payment thereof, and transferring the 
property therein, is coextensive with capacity to sell 
or transfer personal property. 

JEkplanation. — The incapacity of one or more of 
the parties to a bill does not diminish, the liability of 
the otber parties tberett).^ 

Illustration. 

Action by indorsee against the drawer of a bill. It is no de- 
fense that the payee was an infant when he indorsed the bill.^ 

Note. — Capacity must be distinguished from authority. Ca- 
pacity is power to contract bestowed by law. Authority is 
power to contract bestowed by act of parties. Want of capac- 
ity is incurable. "Want of authority may Be cured by ratifica- 
tion. Capacity or no capacity is a question of law. Authotity 
or no authority is usually a question of fact. Again, capacity 
to incur liability must be distinguished from capacity to trans- 
fer. An executed contract is often valid where an executory 
contract cannot be enforced : Cf. Arts. Ill, 113. 

' Grey v. Cooper (1782), 3 Dougl. 65 ; French Code, Art. 114 ; German 
Exchange Law, Art. 8. 

nA ; Cf. Gnener v. Ulerey (1866), 20 la. 266 ; EsUy v. People (1880), 
23 Kans. 510. 

(71) 



72 



BILLS OF EXCHANGE. [arts. 62-63. 



No capacity 
to contract. 



Minnr's 
liability. 



Art. 62. A person who is non compos mentis has 
no capacity to contract by bill.-' 

Note. — The liability for necessaries is like that of infants: 
Art. 63. Contracts by bill between parties whose countries are 
at war, are void.^ 

Art. 63. An infant incurs no liability on a bill, by 
becoming a party thereto.^ 

iLLUSTEATIOlSr. 

B., an infant within three months of attaining his majority, 
accepts a bill drawn on him for necessaries, payable one month 
afterdate. He thereby incurs no liability ow iAe 5*7//* a for- 
tiori if the bill is not for necessaries. 

Explanation. — If his contract is ratified after at- 
taining majority, he becomes liable on the bill.® 

NoTB. — The ratification may be by the mere act of the party, 
as in retaining the consideration after a request to return it,° or 
by any language from which a promise to pay may be reasona- 
bly implied,' if addressed to a party in interest.^ The ratifica- 
tion is binding though given in ignorance, that he was not 
legally liable on the bill.° In England, by a recent statute, an 
infant's contracts are made incapable of ratification.'" In the 
above illustfation the infant would be liable on the considera- 

^SentmiceY. Poole (1827), 3 C. & P. 1 ; Jenners v. Hoteard {1U2), 6 
Blaokf. (Ind.) 240 ; Seaver Y.Phelps (1831), 11 Pick. (Mass.) 304. 

2 Willeson v. PaUeson (1817), 7 Taunt. 439 ; Woods v. Wilder {mOi), 
-43 N. Y. 164. 

s Williamson v. Watts (1808), 1 Camp. 552 ; M'Ch-illis v. How (1826), 
.8 N. H. 348. 

*Icl. ; Swaseu v., Vcmderheyden (1813), 10 Johns. (N. Y.) 33 ; Hen- 
derson V. Fox (1854), 5 Ind. 489. Contra, Earle v. Reed (1845), 10 Met. 
(Mass.) 387. 

^EdgerlyY.8haw{l?>h2),h Post. (N. H.) 514; Seed v. BatcheUer 
(1840),, 1 Met. (Mass.) 559. 

^Aldrich v. Grimes (1839), lO N. H. 194. 

' Martin v. Mayo (1813), 10 Mass. 137 ; Whitney v. Dutch (1817), 14 
Mass 457. 

. ^lioitY. VnderUll{\?S&),^ N. H. 436; Hodges Y.Hunt (1856), 22 
Barb. (N. Y.) 150. 

' Morse v. Wheeler (1862), 4 Allen (Mass.) 570. Contra, Harmer v. 
Killing (1804), 5 Eap. 102 ; CurtinY. Patton (1824), 11 S. & R. Pa. 305. 

i» Infants' Relief Act (l874), 37 & 38 Vict. c. 62 ; Ex parte KibUe 
(1875), 10 L. R. Ch. 373. But see Eae parte Lynch (1876), 2 L. R. Ch. D. 
227. 



AETS. 64-65.] CAPACITY AND AUTHORITY. 73 

tion, though by the weight of authority, not on the bill. The Minor's 
age at which infancy ceases difi'ersmuch in diiferent countries :^i^''ii'ty- 
e.g., in India it is 18 ; in Germany, 23. In most continental 
countries a distinction is drawn between infant traders and 
non- traders ; the former having full capacity. 

Art. 64, When a bill is payable to the order of 

an infant, his indorsement (probably) transfers the 

property therein.^ 

Note. — Of. Art. 68. An infant's executed contracts are 
usually valid. As an infant may be an agent, his indorsement 
in that character gives rise to no difficulty. In America it is 
not uncommon to get a bill made payable to the order of an 
infant clerk ; his indorsement then operates as an indorsement 
sans recours, though without discrediting the bill. 

Art. 65. A married woman incurs no liability by Married wo- 

... . i.iio •'•' man's liability. 

drawing, indorsing, or accepting a bill. 

iLLrSTEATION. 

A married woman makes a note, signing it " J. B., widow." 
She is not liable thereon, even to an innocent holder, though 
she fraudulently represents herself unmarried.' And such note 
being void is incapable of ratification after discoverture.* 

Exceptions. — 1. Married woman whose husband is 
civiliter mortuus, or an alien resident and domiciled 
abroad,^ 2. Married woman divorced a mensa et 
ihoro^ 

Note. — In equity a married woman is liable on contracts 

' Frazier v. Massey (1860), 14 Ind. 382 ; Nightingale v. Withington 
(1818), 15 Mass. 272 ; Cf. Lebel v. Tucker (1867), 8 B. & S. at 833 : 
Grey v. Cooper ((1782), 3 Dougl.-65 ; Indian Draft Code, Art. 13. 

'Cannam v. Farmer (1849), 3 Exch. 698; Hawe v. Wildes (1852), 34 
Me. 666 ; Cf. Coward v. Hughes (1855), 1 K. & J. 443. 

"Id.; Johnson ^.Sutherland (1878), 39 Mich. 579; Cf. Lowell v. 
Daniels (1854), 2 Gray (Mass.) 161. 

" Watkins v. Halstead (1849), 2 Sandf. (N. T.) 311 : Porterfield v. 
Butler (1872), 47 Miss. 165. 

' Ahhott v. Bayley (1827), 6 Pick. (Mass.) 89 ; M' Arthur v. BUom 
(1853), 2 Duer (N. f.), 151. 

* Pierce v. Burnham (1842), 4 Met. (Mass.) 303. Contra, Lewis v, 
Lee (1824), 3 B. & C. 291. 



74 



BILLS OF EXCHANGE. [aets. 66-67. 



Transfer 
by married 
woman. 



Married wo- charged upon Or for the benefit of her separate estate.' En- 
man's UabiUty. abling statutes have been generally passed, removing many of 
the disabilities of a married woman. 

Art. 66. When a bill is payable to tbe order of a 
married woman, she cannot by her indorsement trans- 
fer the property therein.^ 

Note. — But this does not prevent recovery thereon by in- 
dorsee against acceptor, who is estopped to dispute the capac- 
ity of the payee to indorse : Art. 312. Hence the acceptor 
may have to pay the bill twice — to indorsee whose title he 
cannot dispute, and to the husband who still holds the title.' 

Exception 3. — Bill indorsed by married woman 
under such circumstances as would render her liable 
on her indorsement. (Art. Q5.) 

Exception 2. — Bill indorsed by married woman as 
agent for her husband,* 

Illustration. 

A bill is payable to the " order of Mrs. C." With the eon- 
sent of her husband she indorses it, signing her own name. 
The property in the bill passes by this indorsement.^ 

Note. — Qu. if in the case given, the husband would not be 
liable as indorser ? See Lindus v. Bradwell (1848), 5 C. B. 
583. But see Brown v. Donnell (1861), 49 Me. at 435. 

Art. 67. A corporation incurs no liability by 
drawing, indorsing, or accepting a bill, unless express- 
ly or impliedly empowered by its Act of incorpora- 
tion so to do.® 

^McSenry v. Davies (1870), 10 L. R. Eq. 88 ; Cf. London Bank v. 
Lampriire (1873), 4 L. R. P. C. at 583-594 ; Yale v. Dederer (1860), 22 
N. T. 450 ; Todd v. Lee (1862), 15 Wis. 365. 

"CI. Smith V. Marsack (1848), 6 M. G. & S. 488 ; Savage ir. King 
(1840), 17 Me. 301 ; Evans v. Secrest (1852), 3 Ind. 545 ; Art. 98. 

"Id. at 503 ; Prescott Banky. Caverly (1856), 7 Gray (Mass.), 217. 

* Prince v. Brunatte (1835), 1 Biag. N. C. 435 ■ Cf. Slawson v. Loring 
(1862), 5 Allen (Mass.) 340. 

« Cotes V. Davis (1808), 1 Camp. 485 ; Stevens v. Beals (1852), 10 Cush. 
(Mass.) 291 ; Hancock Bank y.Joy (1856), 41 Me. 568 : Moreau v. Bran- 
son (1871), 37 Ind. 195. 

»i?e Peruvian By. Co. (1867), 2 L. R. Ch. 617 j JlfoW v. Hicks (1823), 
1 Cow. (N. T.) 613. 



Liability of 
company or 
corporation. 



AET. 67.] , CAPACITY AND AUTHORITY. 75 

Explanation. — Capacity of a corporation to bind I'J^^^'^y "/_. 
itself by a bill, is co-extensive with its capacity to ^""^p"'^"""- 

contract.^ 

Illusteations. 

1. A corporation is chartered to erect a monument. If 
liable on a given contract, it is liable on the bill properly ac- 
cepted in pursuance thereof." 

2. A joint stock company is incorporated for the purpose 
of forming a socl^t^ anonyme abroad for the construction of 
Railways. The directors ace empowered by the memorandum 
and articles of association to do whatever they may from time 
to time think incidental or conducive to the main object of 
the company. These terms cover the issue of bills, and such 
a company is liable on its acceptance.' 

3. A corporation chartered to build a railroad, gives its 
note for materials used in its construction. It is liable there- 
on.* Aliter, if accepts for accommodation to aid another com- 
pany in constructing its road.' 

NoTK. — The rule as to the capacity of corporations to con- 
tract by bill is much more liberal in America than in England, 
where it is held that in case of non-trading corporations, the 
power must be expressly given, or there must be terms in the 
charter wide enough to include it. A mining company, a 
cemetery company, a salvage company, a gas company, an 
alkali works company, and a water works company, have been 
held non-trading companies.' Of. Art. 78, as to non-trading 
partnerships. There is this distinction : A non-trading part- 
nership can adopt a bill, but the bill of a corporation lacking 
capacity is, as regards the corporation, incurably bad ; for a 
contract ultra vires of a corporation cannot be ratified.' And 
the same distinction exists between contracts ultra vires, and 

1 Curtis V. Smith (1857), 15 N. T. at 66 ; Came v. Brigham (1854), 39 
Me. 35. 

'Hayward v. Pilgrim Society (1838), 21 Pick. (Masa.) 270 : Cf. Dams 
V. Building Union (1869), 32 Md. 285. 

'^Ee Peruvian By. Co. (1867), 2 L. R. Ch. 617. 

* Hardy v. Merriweather (i860), 14 Ind. 203 ; Hamilton v. E. E. Co. 
(1857), 9 Ind. 359. Contra, in England, Cf. Bateman v. By. (1866), 1 L. 
B.C. P. 499. 

"•Smead v. B. E. Co. (1858), 11 Ind. 104. 

' Bateman v. By. supra, at 505. 

' Martin v. Zellerbach (1869), 38 Cal. at 311 ; Broion v. Winnisimmet 
Co. (1865), 11 Allen (Mass.), at 331. Exceptions : Bradley v. Ballard 
(1870), 55 m. 413 ; Bisselly. B. B. Co. (1860), 22 N. T. ^9 ; Stephens 
V. Bank (1879), 88 Pa. St. 157. 



76 



BILLS OF EXCHANGE. 



[aets. 68-71. 



Liability of 
companj; or 
coiporation. 



Power of 
corporation 
to transfer. 



contracts executed by an agent of a corporation without 
authority ; and moreover the latter become binding in the 
hands of a bona fide holder for value, but the former can ac- 
quire no additional validity by negotiation." Query, if the rule 
in England as to drawing bills or making notes applies to 
checks. Is a non-trading corporation liable on the instrument 
to the bearer of a dishonored check which it has drawn, or is it 
only liable on the consideration to its immediate obligee ? 

Art. 68. When a bill is payable to the order of a 
corporation, the indorsement of the corporation passes 
the property therein, though .from want of capacity 
the corporation may not be liable as indorser.^ 

Note. — So, too, bankers may be justified in paying checks 
out of the funds of a company, where clearly, by the form of 
the checks, the company would not be liable as drawers if 
they had not been paid,' 



General rule. 



Signature 
essential to 
liability. 



Authority. 

Art. 70. Subject to any exceptions mentioned in 
this chapter, bills are governed by the ordinary rales 
of law relating to principal and agent, and partner- 
ship. 

Art. 71. No person is liable as a party to a bill 
whose signature is not on it.* 

iLLUSTEATIOlsrS. 

1. A., who is agent for X., draws a bill in his ' own name 
upon B., payable to C. 0. knows that A. is only an agent. 
A. alone is liable as drawer of this bill. X. is not.'' 

2. B. and X. are jointly indebted to C. B. alone makes a 

1 Smead v. B. R. Co., (1858), 11 Ind. 104, 

'Smith V. Johnson (1858), 3 H. & N. 222 ; Brown v. Donnell (1861), 
49 Me. 421 ; Cf. Arts. 60, 80, 81. . 

'Mahoney v. East Holyford Co. (1875), 7 L. R. H. L. 869 and 884. 

^Ci.Fenn Y.Harrison (1790), 3 T. R. at 761; Be Adansonia Co. 
(1874), 43 L. J. Ck. at 734, James, L. J. But see next note. 

' Cf. LeadUtter v. Farrow (1816), 5 M. & S. at 350 ; Ex parte Bayner 
(1868), 17 W. R. 64 ; Arnold v. Sprague (1861 , 34 Vt. 409. 



AET. 71.] CAPACITY AND AUTHORITY. 77 

note in favor of C. for the amount of the debt. B. aione is Signature 

essential to 

liable as maker.' Uabiiity. 

3. B. makes a note in C.'s, favor, signing it " B., agent," or 
" B., Receiver," or " B., Trustee," etc. 0. knows B. is act- 
ing as agent for X. B. alone is liable as maker.^ ^ 

4. A. draws a bill, signing it " J. A. agent." A. alone is 
liable as drawer. His principal is not.' 

5. A. draws a bill on " B., agent," and B. writes across the 
face, " Accepted, B., agent." B. alone is liable as acceptor.' 

6. D. is the holder of a bill indorsed in blank by C. D. 
converts O.'s indorsement in blank into a special indorsement 
to E., and transfers the bill to the latter. D. is not liable as 
indorser.° 

Note. — Bills form an exception to the ordinary rule that 
when a contract is made by an agent in his own name, evi- 
dence is admissible to charge the undisclosed principal, though 
not to discharge the agent. A person who has not signed, 
though not liable on the instrument, may of course be liable on 
the consideration : e.g., X. would be so liable in Illust. 2. The 
distinction is this : In the one case the liability is transferable ; 
in the other it is not ; also the onus probandi is shifted. 

Explanation 1. — The term person includes firm, 
company, and corporation. 

Illustrations. 

1. X., a partner in a firm who trade as "John Brown," 
makes a note for 1100 in respect of a partnership transaction, 
signing it as " Brown & Co." He has no authority from his 
partners to vary the firm style. The firm is not liable on this 
note, though B. individually is bound by it.^ 

3. A. is a partner in the firm of " B. & Co." A., in respect 
of a partnership transaction, draws a bill in his individual name 

" Siffkin V, Walker (1809), 2 Camp. 308. 

2 Williams v. RobUns (1860), 16 Grav (Mass.), 77 ; Collins v. Ins. Co. 
(1867), 15 0. St. 215 ; Powers v. Brigg's (1875), 79 111. 493. 

'Pentz V. Stanton (1833), 10 Wend. (N. Y.) 271. But see Hicks -v. 
Hinde (1850), 9 Barb. (N.Y.) 528, not liable if principal disoloaed to 
payee. Cf. Art. 91, liability of agent to his principal on the bill. 

*Slawson v. Loring (1862), 5 AUen (Mass.), 340. 

6 Vincent v. Horlock (1808), 1 Camp. 442. 

« Faith V. Richmond (1840), 11 A. & E. 339 ; Kirk 7. Blurfon (1841), 
9M. &W. 284. 



78 BILLS OF EXCHANGE. [aet. 71. 

Signature On " B. & Co." It IS refused acceptance. A, alone is liable as 

eaaential to , , . , , , 

liability. drawer ; his copartners are not.' 

Note. — A certain class of cases seems to form an exception 
to this Article, as they do not pretend to be in conflict with de- 
cisions of the same court sustaining the rule, though it is diffi- 
cult to see any sound reason for the distinction. Thus, on a 
bill payable to " C, Cash.," and indorsed " C, Cash.," the bank 
of which C. is cashier is held liable as indorser.^ There is bet- 
ter reason for holding that in such case the holder is author- 
ized to write over the indorsement, " For the X. bank," and 
thus convert it into the proper form of an indorsement of the 
the corporation.' If, in Illust. 1, B.'s partners had authorized 
the change of style, the altered style would have beed pro hac 
vice the firm style, and . binding on them. The firm, too, is 
bound if the variation in style be immaterial and unintentional.* 
And if there be not a distinct firm style, it seems a partner may 
sign the individual names of his copartners.^ Of. Art. 50, Sig- 
nature of Corporation. 

Explanation 2. — A person is bound by his signa- 
ture who signs a bill in an assumed or fictitious name 
adopted as his own.® 

Illusteations. 

1. John Smith carries on business under the name of "John 
Brown," or " Brown & Co.," or " The London Iron Company." 
John Smith is liable on a bill drawn, indorsed, or accepted by 
him in any of these names.' 

• Nicholson v. RicJcets (1860), 29 L. J, Q. B. at 65 ; Re Adansonia Co. 
(1874), 43 L. J. Ch. 732, firm composed of four firms ; Macklin v. 
Crutcher (1869), 6 Bush (Ky.), 401. 

^ Houghton v. Bank (1870), 26 Wis. 663 ; Bank v. Muskingum Bank 
(1864), 29 N. Y. 619 ; Pratt v. Bank (1874), 12 Kans. 570 ; Oarton v. 
Bank (1876), 34 Mich. 279 ; Elwell v. Dodge (1861), 33 Barb. (N. T.) 
336 {insurance corp.). Contra, Bank v-. Lyman (1848), 20 Vt. 666. 

'Bank v. Patchin Bank (1855), 13 N. Y. 309 ; Folger v. Chase (1836), 
18 Pick. (Mass.), 63. 

* Forhes Y. Marshall (1855), 11 Exch. 166 ; Mott v. Hicks (1823), 1 
Cow. (N. Y.) 513. As to accidental misspelling, see Leonard v. Wilson 
(1834), 2 Or. & M. 589 ; Kirk v. Blurton (1841), 9 M. & W. 289. 

^Norton v. Seymour (1847), 16 L. J. C. P. 100. May so sign though 
firm name, Filley v. Phelps (1847), 18 Conn, at 301 ; Trowbridge v. 
Cushman (1836), 24 Pick. (Mass.) 310. 

«Cf. LindusY. Bradwell (1848), 5 C. B. at 591 ; Bartlett v. Tucker 
(1870), 104 Mass. 836 ; Cf. Art. 37, Expl. 2, aad Trueman v. Loder 
(1840), 11 A. & E. at 594. 

'Cf. Wilder. Keep (1834), 6 C. & P. 235; Forman v. Jacob (1815), 
1 Stark, 47. 



AET. 72.] CAPACITY AND AUTHORITY. 79 

2. A principal trades and carries on a business in the name signatare 
of one of his agents (a clerk). He is liable on a bill accepted liability. 
by the clerk in his own name in respect of that business, al- 
though the clerk in accepting it acted contrary to his private 
instructions.' 

Note. — Cf. Lindley, p. 357. So, too, a firm may trade un- 
der its own name in one place, and under the name of one of 
the partners in another place. His name then becomes the 
firm name.' 

Explanation 3. — The signature of a firm is deemed 
to be the signature of all persons who are partners in 
the firm, whether working, dormant, or secret; or 
who, by holding themselves out as partners, are liable 
as such to third parties.* 

Illusteations. 

1. X. is a working partner in the firm of " B. & Co." He 
retires from the firm, but gives no notice of his retirement. He 
is liable on a bill accepted by the firm subsequent to his re- 
tirement.^ 

2. Two distinct firms, having one or more partners in com- 
mon, carry on business under the same name. Each firm is 
liable on the acceptances of the other to a bond fide holder 
without notice." 

Art. 72. It is immaterial by whose hand a signa- nana that 
ture is made, provided there be authority to sign.'' mi^teiiaL 

Illustbatioit. 

Bill payable to C.'s order, and indorsed in his name. It is 
proved that C.'s wife bad authority to indorse bills for him, and 

1 Edmunds v. Bushell (1865), 1 L. R. Q. B. 96 ; Cf. Melledge v. Iron 
Co. (1849), 5 Gush. (Mass.) 176 ; Conro v. Iron Co. (1851), 12 Barb. 
(N. Y.) 27. 

«Cf. Alliance Banh v. Kearsley (1871), 6 L. R. C. P. at 438. 

8 Pooley V. Driver (1876), 5 L. R. Ch. D. 458 ; UndUy, pp. 855-357. 

* Gurney v. Evans (1858), 27 L. J. Ex. 166 ; Lindley, pp. 355-357. 

5 Davis V. Allen (1849), 3 N. T. at 172 ; Litidley, pp. 418-426. 

^Lindley, p. 357. 

■•Lord V. Hall (1849), 8 C. B. 627. 



so 



BILLS OF EXCHANGE. 



[art. 73. 



Hand that 
signs Im- 
material. 



Express au- 
thority not 



that in this case C.'s name was written by his- daughter, in the ' 
presence and by the direction of his wife. This is sufficient.', 

' Note. — In the case of a corporation, it is clear that the sig- 
nature must be by the hand of an agent. 

Art. 7*3. An authority to sign bills on behalf of 
another may be either express (verbal or written), or 
implied from circumstances.^ 

Illttsteatioits. 

1. X., in B.'s presence, and with his assent, indorses a bill 
in B.'s name. This is to all intents and purposes- an indorse- 
ment by B.' 

3. It is shown that X. ia in the habit of accepting bills in 
B.'s name ; that B. is aware of it, and duly honors such bills. 
This is evidence from which an authority to X. to accept bills 
may be implied.* 

3. C the holder of a bill payable to order, transfers it for 
value to D. without indorsing it. This is not an authority to 
i). to indorse it in C.'s name.' 

Explanation. — Where an express authority to the 
agent must be proved or is relied on, such authority 
is to be strictly construed.® 

iLLUSTEATIOlirS. 

1. An authority to draw bills does not include an authority 
to indorse them.' 

2. An authority to an agent to receive payment from B. by 
drawing on him does not authorize the agent to draw a bill 
payable to his own order." 

^LordY. Ha?Z(1849),8 C.B.627; Cf. Woodhiiry v. Woodbury (1866), 
47 N. H. 11. 

- Prescott V. Fhjn (1832), 9 Bing. 19 ;. Cf. Art. 81, Excep. 1. 

^Lord V. Hall (1849), 8 C. B. 627. 

*Ct Morris v. Bethell (1869), 5 L. R. C. P. at 51 ; N. Y. Iron Mine v. 
Bank (1878), 39 Mich, at 651 & 652. 

"Harrop v. Fisher (1861), 30 L. J. 0. P. 283. 

'Atwood V. Munnings (1827), 7 B. & 0. 278 ; Cf. Feam v. Filica 
(1844), 7 M. & Gr. 513; Sossiter r. Bossiter (1832), 8 Wend. (N. Y.) 
494. 

' Cf. Prescott v. Flyn (1832), 9 Bing. at 22. 

'Hogarth v. WherUy (18751, 10 L. R. C. P. 530. 



AET. 74.] CAPACITY AND AUTHORITY. 81 

3. An authority to draw checks does not authorize draw- Express su- 
ing post-dated checks, which are Bills of Exchange.^ necessary. 

4. An authority to A. to draw bills in B.'s name does not 
authotize drawing bills in the joint names of A. and B.^ 

5. An authority to accept a bill does not authorize an ac- 
ceptance for accommodation.' 

6. An authority to draw at six months does not authorize 
drawing at sixty days.* 

Art. 74. A signature " per procuration," or in sgnatjre 
otlier terms which denote that the signature of theP''™"?*^ 
principal is placed on the bill by the hand of an 
agent, operates as notice that the agent has but a 
limited authority to sign, and the principal is only 
bound by such signatureto the extent of the acfual 
authority possessed by the agent.^ 

Illustrations. 

1. B., who carries on business for himself, and is also in 
partnership with, X., goes abroad ; he gives X. an authority to 
accept bills in his name in respect of his private business. X. 
accepts a bill in B.'s name in respect of the partnership busi- 
ness, signing " p.p. X. B." The bill is negotiated. B. is not 

' liable on this acceptance." 

2. By a resolution of the directors, the chairman of a com- 
pany is authorized to accept bills drawn by A. against the de- 
posit of securities. He accepts a bill drawn by A., signing 
per proc. the company, without requiring the deposit of secur- 
ity. The bill is negotiated to a bond fide holder. The com- 
pany is liable.' 

» Forster v. Maekreth (1867), 2 L. R. Ex. 163. 

■^Stainhack v. Read (1854), 11 Grat. (Va.) 281. 

' Wallace v. Bank (1840), 1 Ala. 565 ; North River Bank v. Aymar 
(1842), 3 Hill (N.T.), 262. 

* Batty v. Carswell (1806), 2 Johns. (N. T.) 48 ; Newhall v. Bunion 
(1837), 14 Me. 180. 

. 5 Cf. Charlep v. Backwell (1877), 2 L. R. C. P. D. at 159-160, C. A. 
But see next note. 

» Attwood T. Munnings (1827), 7 B. & C. 278 ; Stagg v. Elliott (1862), 
12 C. B. N. S. 373. 

■•Re Land Credit Co. (1869), 4 L. R. Ch. 460; andCf. Ex parte Mere- 

6 



82 mLLS Of EXCBAitGM. [aet. 75- 

Signature iier NoT^B.-^There is perhaps a disposition to narrow the rule in 
proo. i>rtncipai. ^j^g case of corporations.' In an Irish case'' a distinction is 
drawn between an acceptance signed " J< B., per proc. T. S.," 
and one signed " For J. B. T. S." The distinction does not 
seem founded on any very clear principle. The case can be 
supported on other grounds. — Art. 74 is taken without change 
from the English work, yet it' does not seem to be the true rule 
in America. Is the mere form in which the agent signs the 
criterion? Is not rather the real distinction between a general 
agent and a special agent?' If the party dealing with the 
agent has notice, either from the form of signature or in any 
other way, that the agent is acting under a special authority, 
whether written or oral, he is chargeable with notice of the ex- 
tent of that authority.* But he is not bound to go further and 
see that the agent is acting in good faith toward his principal. 
Illustr. 2, supra. In the case of a general agent, the principal 
is bound on all contracts within his ostensible authority, though 
authorized in writing to do certain specified acts only.^ 

Signature per Art. 75. A person who, without authority, signs 

proo. agent. -"^ ' j t o 

the name of another person to a bill, either simply or 
by a procuration signature, is not liable on the in- 
strument,® unless adopted as his own at the time of 
signing.'' 

iLLtrSTEATIOSr. 

A bill drawn on B'. is held by C. X., without authority, ac- 
cepts it for B., signing " B., per proo. X." X. is not liable as 

dith (1863), 32 L. J. Ch. 300 ; North River Bank v. Aymar (1842), 3 Hill 
(N.Y.), 262. 

1 Re Land Credit Co. (1869), 4 L. R. Ch. at 468. 

^O'Reilly v. Richardson (1865), 17 Ir. Com. L. R. 74 ; but Cf. Balfour 
V. Ernest {\%h°i), 28 L. J. C. P. at 176. 

' See argument of counsel in Stagg v. Elliott, supra, at 375, and at 
882, Willes, J. 

*Cf. North River Bank v. Aymar, supra ; Nixon v. Palmer (1853), 8 
N. Y. 898 ; Murdoch v. Mills (1846), 11 Met. (Mass.) at 15. 

'Cf. Hartford Ins. Co: v. Wilcox (1870), 57 El. 1§0 ; Minor v. Bank 
(1828), 4 Pet. (U. S.) 46 ; Cf. Art. 77. 

« Polhill T. Walter (1832), 8 B. & Ad. 114 ; Bartlett t. Tucker (1870), 
104 Mass. 836 ; Duncan v. Niles (1863), 32 HI. 582 ; Hall v. Crandall 
(1866), 29 Cal. 567 : Walker v. Bank (1852), 13 Barb. (N. T.) 636. 
Contra, Dodd v. Bishop (1878), 30 La. An. 1178 ; Weare v% Oove (1862), 
44 N. H. 196 ; Cf. Byars v. Doores (1855), 20 Mo. 284. 

' Cf. Art. 71, Bxpl. 2 ; Kelner v. Baxter (1866), 2 L. R. C. P. 174 ; 
Blanchard v. Kaull (1872), 44 Cal. 440. 



AET. 76.] CAPACITY AND AUTHORITY. 83 

acceptor, though he may be liable to 0. or a subsequent holder signature per 
in an action for a false representation.' 

Note. — In an action for false representation, under such cir- 
cumstances, it lies on the holder to prove damage.^ The 
modern tendency is to restrict liability ex delicto to cases of 
intentional fraud. By German Exchange Law, Art. 95, a per- 
son who, without authority, signs a bill as agent for another, is 
personally liable thereon. The Indian Draft Code adopts this 
rule. 

Art. 76. A person who signs a bill in a represent- signature as 
ative or oflScial character, or who, in signing, describes sentauve. 
himself as agent for a principal, whether named or 
not, is personally liable thereon, unless in express 
terms he repudiate such liability.* 

Illitsteations. 

1. Money is lent to a parish. The churchwardens give a 

. "J B ) 

note for the amount, signing it „ -r' q'' [■ Churchwardens." They 

are personally liable on the note as makers.* 

2. B. by will directs his executor to carry on his business. 
He does so, and in the course of the business accepts bills, 
signing "J. S., executor of B." He is personally liable on these 
acceptances.^ 

3. D., the holder; of a bill payable to his order, dies. X., 
his executor, indorses the bill away, signing the indorsement, 
" J. X., executor of D." X. is personally liable on this indorse- 
ment, unless he add some such words as " without recourse 
against me personally." ° 

4. Money is lent to the X. Company. A note for the 

' PolhiU V. Walter (1832), 3 B. & Ad. 114. 

'Eastwood V. Bain (1858), 3 H. & N. 738. 

^Leadbitter ^r. Farrow (1816), 5 M. & S. 348 ; Bradlee v. Boston 
Glass Co. (1835), 15 Pick. (MassJ at 550. 

*je,ji» V. Pe«i«(1834), 1 A. & B. 196 ; Cf. Mays v. Crutcher (1876), 54 
Ind. 260 ; Powers v. Briggs (1875), 79 Dl. 493. But see Johnson v. 
Smith (1852), 21 Conn. 627. 

^ Liverpool Bank Y. Walker (1859), 4 DeG. & J. 24 ; Eittenhouse v. 
A mmerman (1816), 64 Mo. 197. But Ci.Hardi/ v. Pilcher (1879), 57 
Miss. 18. 

« Cf. Childs v. Monins (1821), 2 B. & B. 460. But see next note. 



84 BILLS OF EXCHANGE. [aet. 76. 

Signature" as amount is ffiven in the form, "We promise to pay, et cet.," 

agent or repre- . . 

Bentatlve. Signed, ' 

"J B ) 

,j j' o"' \ Directors of the X. Company, Limited. 

"J. T.^ Manager." 
The persons who sign are personally liable as makers.' 

5. Note in the form, " We, the directors of the X. Company, 
Limited, et cet." (signed by the directors), " J. B. J. S." In 
the corner of the note is the seal of the company, and the sig- 
nature of an attesting witness. J. B. and J. S. are personally 
liable.' 

6. A. issues a bill for $100, addressed to the X. Insurance 
Co., and ending, " and charge the same to the account of A., 
Agent X. Ins. Co." A. is personally liable to the payee as 
drawer, though known to be acting as agent.' 

7. Money is lent to the X. Railway Co. A note for the 
amount is given in the form, "I promise to pay, et cet." 
(signed), '« For the X. Railway Co. J. B., Secretary." J. B. 
is not personally liable.* 

8. Note in the form, " We jointly and severally promise, et 
cet." (signed), " J. B. J. S., Agents for B." J. B. & J. S. are 
not personally liable." And the same rule applies if the prom- 
ise in the body of the note is expressed to be by " J. B., 
Agent /or B." « 

9. Note in the form, " I., as Treasurer of the X. Society, 
promise, et cet." (signed), " B., Treasurer." B. is not personally 
liable (probably).' 

^Courtauld v. Saunders (1867), 16 L. T. N. S. 562 ; Mellen v. Moort 
(1878), 68 Me. 390. But Of. Pitman v. Kintner (1839), 5 Blackf. (Ind.), 
250. 

^Button V. Marsh (1871), 6 L. R. Q. B. 361. But Cf. Illustr. 12, infra. 

» Tucker Mawuf. Co. v. Fairbanks (1867), 98 Mass. 101. But see Ma- 
ker V. Overton (1835), 9 La. (0. S.) 115, and next note. 

* Alexander v. Sizer (1869), 4 L. R. Ex. 102 : but see Cfrau v. Raper 
(1866), 1 L. R. 0. P. 694. 

= Rice V. Gove (1839), 22 Pick. (Mass.) 158 ; Jefts v. York (1849), 4 
Cush. (Mass.), 37. 

' Cf. Jones V. Clark (1871), 42 Cal. 180. Contra, Morrell v. Codding 
(1862), 4 Allen (Mass.), 403. 

' Barlow v. Cong. Society (1864), 8 Allen (Mass.), 460 ; Blanchard v. 
Kaull (1872), 44. Cal. 440. But Cf. East Tenn. Co. v. Gaskell (1879), 2 
Lea (Tenn.), 742 ; Burlingame v. Brewster (1875), 79 111. 515. 



AET. 77.] CAPACITY AND AUTHORITY. 85 

10. Note in the form, " The X. Co. promise, et cet." (signed), signature as 
" B., President." B. is not personally liable.' resentative. 

11. Note in the form, " I promise, et cet." (signed), " B., by 
her trustee, X." X. is not personally liable.' 

13. A bank check is signed, " B., Treasurer," but having the 
■words "^tna Mills" printed in the margin. B. is not person- 
ally liable as drawer.' 

13. Bill specially indorsed to " C, agent." He indorses it 
away, signing "C, agent." C. is personally liable as indor- 
ser.* 

Note. — For further illustrations. Of. Art. 50 and Art. 37, Ex. 
3. The terms agent, manager, &c., attached to a signature, are 
regarded as mere-designatio personce. The rule is applied with 
peculiar strictness to bills, because of the non-liability^ of the 
principal. Cf. Art. 71. It is often difficult to determine 
whether a given signature is the signature of the principal by 
the hand of an agent, or the signature of the agent naming a 
principal. The maxim ut res magis valeat governs the con- 
struction. Where the language is ambiguous, oral evidence is 
admissible to ascertain the intent of the parties.* A distinc- 
tion is taken by some authorities between an indorsement, '' X. 
agent," and other bill contracts in the same form, holding it 

equivalent to an indorsement sans recours a declaration 

that the indorser will not be personally liable, whoever else 
may be.' And the same rule has been applied to a drawer.' 

As to the liability of an agent to his principal, see Art. 91. 

Art. 77. A partner in a trading firm has ^rima Trading firm. 
facie authority to bind the firm by drawing, indorsing, 
or accepting bills in the firm name for partnership 
purposes;* and if the bill get into the hands of a 
holder for value without notice, . the presumption of 

> Hall V. Crandall (1866), 29 Cal. 567 ; Duncan v. Niles (1863), 32 111. 
532 ; Whitney v. Snow (1873), 111 Mass. 368. 

' Taylor v. Shelton (1861), 30 Conn. 122. 

' Carpenter v. Famsworth (1871), 106 Mass. 561. 

* Bartlett v. Hau-ley (1876), 120 Mass. 92. But see next note. 

^Klosterman v. Loos (1874), 58 Mo. 290: Sanborn v. Neal (I860), 4 
Minn. 126. 

^Mott V. Hicks (1823), 1 Cow. (N. T.) 513. 

' Hichs V. Hinde (1850), 9 Barb. (N. t.) 528. 

8 Wiseman v. Easton (1863), 8 L. T. N. S. 637 ; Kinibro v. Bullitt 
(1859), 22 How. (U. S.) 256 j Nat. Bank v. McDonald (1879), 127 Mass. 82. 



86 



BILLS OF EXCHANGE. 



[AET. 78.- 



Trading firm, authority becomes absolute, and it is immaterial 
■whether it were given for partnership purposes or not.'^ 

IlXtrSTEATIONS. 

1. X., a partner in a trading firm, makes a note in the firm's 
name, payable to C, and gives it to him in payment of a pri- 
vate debt. It lies on C. to show that X. had authority from 
his co-partners so to do.' But the firm would be liable to an 
indorsee without notice.' 

3. X., a partner in a trading firm, makes a note in the firm 
name, payable to C. for his accommodation, or as surety for him, 
without the knowledge of the other partners. The firm is not 
liable to C.,* but would be liable to a bond fide holder for 
value.^ . 

3. A. draws two bills on a firm in respect of one and the 
same debt. By mistake both bills are accepted. The bills are 
negotiated to bond fide holders. The firm is liable on both.' 

4. A partner accepts in the firm name a bill drawn on the 
firm in respect of a debt partly due from the firm and partly 
due from himself alone. Fraud is negatived, but the holds* 
knows the facts. The pro tanto liability of the firm on the in- 
strument is doubtful.' 

Note. — In Illust. 3., the safe plan is to sue on the considera- 
tion. This Art. and the next are merely deductions from the 
general rule that a partner has implied authority to do any act 
necessarily incidental to the proper conduct of the partnership 
business, and that there the presumption of authority ends. 

Art. 78. A partner in a non-trading palrtnership 
has prima facie no authority to render his copartners 

> WinsUp V. Bank (1831), 5 Pet. (U. S.) 529 : WrigU v. Brosseau, 
(1874), 73 111. 381. 

' Of. Levieson v. Lane (1862), 32 L. J. C. P. .10 ; Davis v. Coolc (1879), 
14 Nev. 265 ; Uni-on Bank v. Under hillJlSSO), 21 Hun (N. Y.), 178. 

''Smyth V. Strader (1845), 4 How. (U. S.) 404; Parker v. Burgess 
(1858), 5 R. I. 277. 

*Heffron v. Hanaford (1879), 40 Mich. 305: Sweetser v. French 
(1848), 2 Gush. (Mass.) 809. 

^Austin V. Vandermark (1843),' 4 Hill (N. T.), 259 ; Chemung Bank 
V. Bradner (1871), 44 N. T. 680. 

'Davison v. Roberts (1815), 3 Dow. 218, H. L. 

' Ellston V. Deacon (1866), 2 L. R. C. P. at 21. Cf. Wilson v. Forder 
(1870), 20 0. St. 89. 



Non-trading 
firm. 



AET. 



79.] CAPACITY AND AUTHORITY. 87 



liable by signing bills in the partnership name. The f °^'"""^'"*' 
holder must show authority, actual or ostensible.^ 

Explanation. — Partnerships, such as professional 
partnerships {e.g., attorneys,^ physicians^), mining 
partnerships,* agi:icultural partnerships,^ and commis- 
sion agencies,^ have been held non-trading. ' 

Note. — In Harris v. Amery (1865), 1 L. R. C. P. at 154, 
Willes, J., points out that the term " trade " is not cdextensive 
with the term " bu,siness." It does not seem to be decided 
how far the rule applies to checks, as well as to bills and 
notes. The question cannot often arise, because opening an 
account in the firm name is evidence of actual authoiity. 
Note, that authority to draw chocks is not evidence of author- 
ity to draw bills, and a post-dated check is a bill.' 

Art. 79. Where a bill is payable to the order of Power to trans- 
a firm, a partner who cannot by his indorsement ren- 
der his co-partners liable, may transfer the property 
therein by negotiating it in the firm name.* 
Ili.usteations. 

1. Bill specially indorsed to a non-trading partnership. One 
of the partners, without communicating with his copartners, in- 
dorses it away for a firm debt. The property in the bill passes 
to the indorsee.^ 

2. Bill specially indorsed to a firm under a wrong style 
(e.g., to " Smith, Brown & Co.," whereas the proper style is 
" Brown & Co."). One of the partners indorses. it- away, using 

' lAndley, p. 280 ; Dickinson v. Valm (1829), 10 B. & C. at 137 ; 
Thicknesse v. Bromilow (1832), 2 Cr. &J. 425 : Tappan v. Bailev (1842)! 
4 Met. (Mass.) 529. . ^^ j ^ i, 

* Garland v. Jacomb (1873), 8 L. R. Ex. at 219 : Breckmridae v. 
Shrieve (1836), 4 Dana (Ky.), 375. 

s CrosthwaU v. Ross (1839), 1 Humph. 23. 

*Ri.cketts v. Bennett (1847), 4 C. B. at 699 ; Jones v. Clark (1871) 42 
Cal. 180 ; Cf. Gray v. Ward (1856), 18 III. 32. 

* Kimhro v. Bullitt (1859), 20 How. (U. S.) 256. But Cf. McGreaor v 
Cleaveland (1830), 5 Wend. (N. T.) 475. 

8 Yaf-es V. Dalton (1859), 28 L. J. Ex. 69. 
■'Forster v. Mackreth (1867), 2 L. E. Ex. 163. 

"TAndley, p. 282 ; Bredow v. Mui.Sav. Inst. (1859), 28 Mo. 181, and 
Cf. Arts. 61, 64, 68. 
»Cf. Smith V. Johnson (1858), 3 H. & N. 222. 



88 BILLS OF EXCHANGE. [aet. 80-Sl. 

Power to trans- without the assent of the rest, the wrong style. The firm is 
not liable on the indorsement, but the property in the bill 
passes to the indorsee.' 

Note. — Cf. Art. 71 as to the principle. When a bill pay- 
able to the order of a firm is indorsed by a partner in the firm 
name, in fraud of his co-partners, the property therein does not 
pass to an indorsee with notice, but there seem to be technical 
difficulties in the way of an action brought by the firm.^ In 
such case the proper course (perhaps) is to give notice to the 
acceptor "not to pay. He could defend an action against a 
holder with notice. 

Ex-partners. Art. 80. Wheii a bill is payable to tbe order of a 
firm, and the partnership is subsequently dissolved, 
the indorsement of an ex-partner in the late firm 
name transfers the property therein and authorizes 
the payment thereof.^ 

Note. — Leieis v. Heilly ' may be open to question in so far 
as it lays down that an ex-partner, by indorsing a bill in the 
late firm name, renders his former partners liable as indorsers 
to a holder with notice of the dissolution.* 



natures. 



Forgery., Etc^ 

rSriz°eds?'- ■^^*'" ^^' ^^ person is liable as a party to a bill 
whose signature has been placed thereon without his; 
authority, and no right or title can be derived 
through a forged or unauthorized signature.^ (Cf. 
Art. 139.) 

' Williamson v. Johnson (1823), 1 B. & C. 146 ; Kirh v. Blurton 
(1841), 9M. & W. at 287. 

^Heilbutt V. Nevill (1870), 5 L. R. C. P. 478, Ex. Ch. 

'King v. Smith (1829), 4 C. & P. 108 ; Lewis v. Beilltf (1841), 1 Q. B 
349. Contra, Fellows v. Wyman (1856), 33 N. H. 1551 ; Parker v 
Maeomler (1836), 18 Pick. (Mass.) 505. 

■■Cf. LindUy, p. 423; Kilgour v. Finlayson (1789), 1 H. Bl. 155 
Abel V. Sutton (1800), 3 Esp. 108 ; Anderson v. Weston (1840), 6 Bine! 
N. C. 296. 

^Banlc of Bengal v. Fa^an (1849), 7 Moore P. C. at 72; Harrop y. 
Fisher (1861), 30 L. J. C. P. 283 ; Carpenter v. Bank (1877), 123 Mass, 
66 ; MassS, § 1529. 



AET. 81.J CAPACITY AND AUTHORITY. 89 

IlLUSTEATlONS. Forged or un- 

authorized sig- 

1. ' A bill is payable to the order of John Smith. Another '^°''"'^^^" 
person of the name of John Smith gets hold of it and indorses 

it to D., who takes it in good faith and for value. D. acquires 
no title to the bill ; he cannot enforce payment against any of 
tiie parties thereto, and should any party pay him, the pay- 
ment is invalid.' 

2. A bill is payable to C.'s order. His indorsement is 
forged. D., a subsequent holder, presents the bill for accept- 
ance. The drawee accepts it, payable at his bankers'. The 
bankers pay D. They cannot debit the acceptor with this 
payment.^ 

3. A bill is payable to the order of a firm. X., one of the 
partners, frauclulently indorses it in the firm name to D. in 
payment of a private debt. The acceptor pays D. X. be- 
comes bankrupt. X.'s copartners and trustee can recover from 
D. the money he received on the bill.' 

4. C. specially indorses a bill to D. It is stolen before de- 
livery to D., and D.'s indorsement in blank is forged on it. It 
comes into X.'s hands, and he gets his bankers to present it for 
payment. They receive payment and credit X. with the 
amount. X. subsequently draws out the whole sum. 0. can 
recover the amount of the bill from the bankers.* 

Explanation. — An authorized signature may be 
ratified, thougli it amount to a forgery.* 

Illtjstkations. 

1. Note for 1100. X. forges B.'s signature to it as maker. 
Before the note matures the holder finds out that B.'s signa- 
ture is a forgery, and threatens to prosecute X. In order to 

^Mead v. Young (1790), 4 T. R. 28 ; Gh-aves v. American Bank (1858), 
17 N. Y. 205 (payment) ; Welsh v. Bank (1878), 73 N. Y. 424. 

2 Rdbarts v. Tucker (1851), 16 Q. B. 560, Ex. Ch. 

^Heilbuti V. NevUl (1870), 5 L. E. C. P. 478, Ex. Ch. ; Gale v. Miller 
(1874),, 54 N. Y. 536. ■ 

* Arnold v. Check Bank (1876), 1 L. R. C. P. D. 578; Of. Charles v. 
Blackwell (1877), 2 L. R. H. L. 200, at 221. 

' Greenfield Bank v. Crafts (1862), 4 Allen (Mass.), 447 ; Gleason v. 
Henri/ (1878), 71 111. 109. Contra, Brook v. Hook (1871), 6 L. R'. Ex. 
89 ; Cf. Williams v. Baylei/ (1866), 1 L. R. H. L. 200 at 221. 



90 BILLS OF EXCHANGE. [aet. 81 

Forged or un- prevent this, B. gives the holder a memorandum, which says, 
naturesr ^'^" " I- hold myself responsible for the note for $100, bearing my 

signature." The ratification is valid, and B. is liable on the 

note.' 

Note. — The authorities in E.ngland and America are direct- 
ly in conflic.t on this point, and cannot be reconciled on the 
ground of estoppel.^ But there can be no ratification of a 
forged signature in favor of a party who acts mala fide? 

Exception 1. — A person whose signature is forged 
or placed on a bill without his authority, may be 
estopped from setting up the fact. (Cf.- Arts. 52 and 
73.) 

Illttsteations. 

1. B.'s acceptance to a bill is forged. A holder who takes 
it hond fide is afterwards informed that the signature is not 
B.'s, and accordingly writes to inquire. B. writes back to say 
the signature is his. B. is liable on this acceptance.* 

2. X., a partner in a trading firm, fraudulently accepts a 
bill in the firm name for a private debt of his own. It is 
negotiated to a holder for value without notice. The firm is 
estopped from setting up X.'s fraud.' 

Ezce'ption 2. — If a bill is payable to the order of a 
married woman, as forming part of her separate 
estate, and her husband forges her indorsement, the 
property in the bill (probably) passes thereby to a 
holder who takes it for value and without notice.® , 

» Cf. Union Bank v. MiddlehrooJc (1865), 33 Conn. 95 ; Howard v. 
Duncan (1870), 3 Lans. (N. Y.) 174. Contra, Brook Y..Hook (1871), 6 L. 
R. Ex. 89 ; Cf. Esdaile v. La Nauze (1835), 1 T. & C. 394. 

^ Gh-eenfield Bank v. Crafts (1862), 4 Allen (Mass.), 447 ; Gleason v. 
Henry (1873), 71 lU. 109. - Contra, Brook v. Hook (1871), 6 L. R. Ex. 
89 ; Cf. Wilhams v. Baylet/ (1866), 1 L. R. H. L. 200 at 221. 

'McHugh\. Count)/ {1811), 67 Pa. St. 391. 

* Brook V. Hook (1871), 6 L. R. Ex. at 100 ; Wilkinson v. Stonei/ (1839), 
IJ. & S. 509 ; Roharts v. Tucker (1851), 16 Q. B. at 677 ; . Woodruff v. 
Munroe (1870), 33 Md. 146 ; Melvin v. Hodges (1874), 71 lU. 422. 

'Hogg v. Skeen (1865), 18 C. B. N. S. at 432, WiUes, J. ; Parker v. 
Burgess (1858), 5 R. I. 277. 

^Dawson v. Pnnce (1858), 27 L. J. Ch. 169, L. JJ. 



AET. 81:] CAPACITY AND AUTHORITY. ' 91 

Exception 3. — ^A party to a bill may be estopped ^j^gedor^^^ 
by bis conduct ; -^ or, in certain cases, by the fact of ^'eia'ires- 
becoming a party ,^ from setting up that the sig- 
natures of other parties thereto are forged or unau- 
thorized. 

Note. — ^Where an estoppel by negligence is relied on, it 
must appear that the negligence was the direct and proximate 
cause of the forgery being taken as genuine.' Where a bill is 
held under a forged signature, the Court will restrain its ne- 
gotiation by injunction, or order it to be given up and can- 
celed.* 

1 ArmU V. ChecTc Bank (1876), 1 L. R. C. P. D. 578. 

2 Of. Estoppels, Drawer, Art. 216 ; Maker, Art. 287 ; Indorser, Art. 219; 
Acceptor, Art. 2i2 ; Acceptor suprd protest. Art. 228 ; Fictitious Payee, 
Art. 139 ; Pictitious Drawee, Art. 2. 

' Arnold y. Check Bank, supra. 

*Esdaile v. La Nauze (1835J, 1 T. & C. 394 ; Joyce on Injunctions, p. 
366. 



CHAPTEE III. 

CONSIDERATION. 

Value defined. Art. 82. " ValuG " means "valuable consideration," 
and is constituted by 

{a.) Any consideration sufficient to support a sim- 
ple contract. 

Illusteations. 

1. A cross acceptance,' the forbearance of the debt of a 
third person,^ the compromise of a disputed liability,' a prom- 
ise to give up a bill thought to be invalid,* a debt barred by 
the Statute of Limitations,' or a debt discharged in bank- 
ruptcy," constitutes value. 

2. A mere moral obligation,' a debt represented to be due 
though not really due,' the giving up a void note,' or a volun- 
tary gift of money,"" do not constitute value. 

> Rose V. Sims (1830), 1 B. & Ad. at 526 ; Of. Biirdon v. Benton 
(1847), 9 Q. B. 843 ; Hornhlower v. Proud (1819), 2 B. & Aid. 357 ; 
Turner v. Rogers (1876), 121 Masa. 12. 

■^Balfour v. Sea Ass. Co. (1857), 3 C. B. N. S. 300; Guv v. Bibend 
(1871), 41 Cal. 323. 

' Cooh V. Wright (1861), 30 L. J. Q. B. 321 ; Harms v. Aufieldimb), 
79 in. 257 ; Wyatt v. Evins (1875), 52 Ala. 285. 

* Smith V. Smith (1863), 13 0. B. N. S. 418. 

^Latouche-v. Latouche (1865), 3 H. & G. at 576; Wilton y. Eaton 
(1879), 127 Mass. 174 ; Mall v. Van Trees (1875), 50 Gal. 547. 

« Trueman v. Fenton (1777), Cowp. 544 ; Wav v. Sperrif (1850), 6 
Gush. (Mass.) 238. But Gf. Walhndge v. Harron (1846), 18 Vt. 448. 

:< Eastwood x.Kenyon (1840), 11 A. & E. 438; Of. Flight r. Reed 
(1863), 3 L. J. Ex. 265. 

'Southall V. Bigg (1851), 11 C. B. 481. 

» Coward v. Hughes (1865), 1 K. & J. 443 ; Tiicker v. RonJc (1876), 43 
la. 80 ; but cf. Mather v. Maidstone (1855), 18 C. B. 273, where an es- 
toppel intervened. 

i'HillY. Wilson (1873) 8 L. R. Gh. at 894. 

(92) 



AET. 83.] CONSIDERATION. 93 

(b.) An antecedent or pre-existing debt.^ vaiue defined. 

Explanation. — When the consideration for the issue 
or subsequent negotiation of a bill is an antecedent 
debt, it is immaterial whether the instrument is paya- 
ble on demand or at a future time.^ < 

Note. — (1.) The bill may be received in absolute payments, 
that is, in extinguishment of the original debt, e.g., bill in- 
dorsed without recourse., or transferred by delivery, so that the 
debtor is not still liable for the debt in another form as in- 
dorser. In such case, the holder is a holder for value by all 
the authorities.* (2.) Or it may be received as conditional 
payment only, the usual signification of " payment " as used 
in the cases, and whether he is then a holder for value or not, 
depends on the same questions which arise when the bill is 
taken as collateral security,* as to which, see Art. 84, note. 
Adequacy of value. — Valuable consideration has been deiined 
as " some right, interest, or benefit accruing to the one party, 
or some forbearance, detriment, loss, or responsibility given, 
suffered or undertaken by the other." ' The Courts do not in- 
quire into the adequacy of a hand fide consideration.^ But 
inadequacy of consideration may be evidence of bad faith or 
fraud.' Again, inadequacy of consideration must be distin- 
guished from partial absence of consideration (Art. 91), partial 
failure of consideration (Art. 93), part payment on account,* qr 
a mere advance made on a bill which is pledged or deposited 
as security (Art. 84). 

Art. 83. If value has at any time been given for aHoider&r 



^Poirier v. Jfoms (1853), 2 E.& B. 89; Swift v. Tyson (1842), 16 
Pet. (U. S.), 1 ; Cf. Sutcher v. Stead (1875), 7 L. R. H. t. 839. 

2 Currie v. Misa (1875), 10 L. R. Ex. Ck. 153, approved but affirmed 
on another ground, 1 L. R. Ap. Ca. 654. 

" Bank ^TGilMand (1840), 23 Wend. (N. Y.) 311 ; Heath v. Silverthorn 
Co. (1875), 39 "Wis. 146 ; Bardsley v. Delp (1879), 88 Pa. St.420. 

*Blanchard v. Stevens (1849), 3 Gush. (Mass.) at 168. But see 
Fletcher v. Chase (1844), 16 N. H. 38, and Rice v. Riatt (1844), 16 N. H. 
116 ; Roxborough v. Messick (1856), 6 0. St. 448 ; Rtjan v. Chew (1862), 
13 la. 589, diawing distinction in favor of holder of paper as conditional 
payment. 

' Currie v. Misa (1875), 10 L. R. Ex. at 162, per Lush, J. 

^ Jones V. Gordon (1877), 2 L. R. Ap. Ca. 616 H. L.; Earl v. Peck 
(1876), 64 N. Y. 596. 

' Id.; Gould V. Segee (1856), 5 Duer (N. Y.), 260 ; Cf. Allen v. Davis. 
(1850), 20 L. J. Ch. 44 ; Simon v. Cridland (1862), 5 L. T. N. S. 524 j 
Lav V. Wissman (1873), 36 la. 305. 

' Dresser Y. MUsouri Co. (1876), 93 U. S. 92. 



04 BILLS OF EXCHANGE. [aet. 83. 

Haitofor |)il]j the holder of it is a holder for yalue as regards 
the acceptor and all parties prior to such time.^ 

Illusteations, 

1. B. owes C. $50. In order to pay C, A., at B.'s request, 
draws a bill on B. for $50, in favor of C. C. is a holder for 
value and can sue A., though A. has received no value." 

2. A. draws a bill on B. payable to his own order. B. to 
accommodate A- accepts it. Subsequently A. gives value to B. 

A. is a holder for value.' 

Explanation 1. — It is immaterial that the value is 
given by or to a person "whq never signed the instru- 
ment, or whose signature has been struck out.* 

IlLUSTEATlOIfS. 

1. B. makes a note in favor of O. C. is the treasurer of a 
loan society, and the consideration, for the note is money ad- 
vanced by the society to B. C. is a holder for value.' 

2. C. the holder of a bill indorses it in blank to D., receiving 
no value . D. for value transfers it by delivery to E. E. is a 
holder for value.' 

3. A. at the request of X. draws a bill payable to C. for 
X.'s account with 0. X. remits the bill to C. C. is a holder 
for value. It is immaterial that there is no consideration be- 
tween A. and X., or that the consideration fails.' 

4. S., in the West Indies, is indebted to 0. in Paris. In 
order to pay him S. remits money to X., his correspondent in 
London, who thereupon obtains a bill for the amount, drawn 
by A. upon Paris, payable to C.'s order. X. remits the bill to 

' Htiflter V. Wilson (1849), 4 Bxch. 489 ; Watson v. Flanagan (1855), 
14 Tex. 854. 

'Scott V. LiffordilSOS), 1 Camp. 246. 

^Burden v. Bmton (1847), 9 Q. B. 893. 

*Cf. Fairclough v. Pavia (1854), 9 Exch. 690 (signature struck out). 

^Lomas v. Bradshaw (1850), 19 L. J. C. P. 273. 

'Barber v. Richards (1851), 6 Bxch. 63 ; Brumme v. Enders (1868), 
18 Gratt. (Va.) at 905. 

■■ Munroe v. Bordier (1849), 8 C. B. 862 ; Watson v. Russell (1862), 3 

B. & S. 34 ; 5 B. & S. 968. 



AET. 83.] CONSIDERATION. 95 

C, but fails before he pays A. for it. S. subsequently pays C. Holder for 
(J. IS a holder tor value, and can sue A.' 

Note.' — In Illust. 4, C. would be trustee for S. As to the 
eifect of this, Cf. Art. 141. Sale of Hill. — In legal language 
a bill is said to be sold when it is transferred by delivery with- 
out indorsement. Not so in mercantile language. Suppose X. 
in London wishes to pay 1000 rupees to C. in India. X. goes 
to A., who has a correspondent in Calcutta, and gets him to 
draw a bill on Calcutta for Rs. 1000. Usually the bill is 
drawn payable to C, but sometimes it is drawn payable to X., 
who then indorses it to C. The amount paid by X. to A. for 
this bill depends on the rate of exchange between London and 
Calcutta on the day of the transaction. In some trades the 
custom is for X. to pay A. when he gets the bill ; in other 
trades it is the custom not to pay till the next mail day. Such 
a transaction is called a sale of the bill by A. to X. X. the 
buyer, who sends the bill out to India, is called the Remitter. 
As to fixing the rate of exchange at which a bill is to be sold, 
see Art. 13,^Expl. 1. ' See, too, the judgment of Wood, V. C, 
explaining the practice of paying for bills partly by cash, part- 
ly by bankers' " marginal notes."^ 

Explanation 2.— Subject to Art. 84, the fact that 
the holder of a bill is the creditor of the person from 
whom he received it does not make such holder a 
holder for value unless he received it in respect of his 
debt.* 

Explanation 3. — A holder for value may or may 
not be a bona fide holder for value without notice.* 

Explanation 4. — The holder of a bill who receives 
it from a holder for value, but does not himself give 
value for it, has all the rights of a holder for value 
against all parties to the bill except the person from 
whom he received it. 

■ Poirier v. Morris (1853), 2 E. & B. 89. 

^Jeffreys v. Agra Bank (1866), 2 L. R. Eq. 676 ; Cf. Ex parte Kemp 
(1874), 9 L. B. Oh. 383. 

2 De la Chaumette v. Bani: (1829), 9 B. & C. 208 ; explained by Currie 
V. Misa (1875), 10 L, E. Ex. at 164, Ex. Ch. 

^Raphael v. Bank (1855), 17 C. B. at 172 j Cf. Arts. 86, 98. 



96 BILLS OF EXCHANGE. , [aet. 84. 

Holder for IlluSTEATIOIT. 

value. 

C, the payee of a bill, holds it for value. He. indorses it to 
D. without value, e.g., by vray of gift or for collection. D. is, 
as regards the drawer and acceptor, a holder for value.' 

•Pledge or lien. Art. 84, A tolder who has a lien on a bill, arising 
either from agreement dr by implication of law, is 
deemed to be a holder for value to the extent of the 
sum for which he has a lien. 

Explanation. — A bill is prima facie presumed to 
have been negotiated to the holder for value, and not 
to have been pledged or deposited as collateral se- 
curity.^ 

Illtjsteations. 

i. i). holds a bill indorsed in blank as agent _for 0. : D. 
wrongfully pledges it with E. E. is a holder for value to the 
extent of the sum he advanced, and if he took the bill without 
notice of the fraud, he can retain the bill as against C, the tru(3 
owner.' 

2. C, the holder of a bill for $100, deposits it with D. as 
security for a running account. At the time the bill matures 
the balance is in C.'s favor, but subsequently the balance turns 
against him to the extent of $50. D. is a holder for value as 
to $50.* 

3. C, the holder of a bill for $100, indorses it to D. as a 
pledge for $50. D. is a holder for value as to $50, and this is 
the sum he can recover if he sues C.° 

4. C. keeps with his bankers a loan account and a general 
account. 0. indorses to the bank, as collateral security for his 
loan account, a bill for $1000, and draws against it to the ex- 
tent of $500. C. becomes bankrupt, and his general account 

■ Milnes v. Dawson (1850), 5 Exch. 948 : Cf. Denton v. Peters (1870), 5 
L. R. Q. B. at 477 ; and Art. 141. 

nmis v. Parher (1866), 14 L."T. N. S. 107 ; Re Boys (1870), 10 L. E. 
Eq. 467 ; Trustees v. Hill (1861), 12 la. 462. 

a Collins V. Martin (1797), 1 B. & P. 648. 

*Attwood V. Crowdie (1816), 1 Stark. 483 ; Cf. Pease v. Hirst (1829), 
10 B. & C. 122 ; Graif v. Beckham (1872), 7 L. R. Ch. at 683. 

^AtUnhorough v. Clarke (1858), 27 L. J. Ex. 188. 



AET. 84.] CONSIDERATION. 97 

is overdrawn more than $500. TKe bank are holders of the Pledge or 
bill for full value.' 

Note. — -Leaving this Art. as in the English work, the Amer- 
ican law on this point may be summarized as follows : The 
person to whom a bill has been negotiated" (Art. 106) as con- 
ditional payment (Of. Art. 82, n.) or as collateral security, is a 
holder for value : (1.) If so taken for a debt created at the time 
of the transfer.' (3.) If so taken for a pre-existing debt, pro- 
vided there is either an express agreement to extend the time 
of payment thereof,* or an agreement to that effect implied 
from the acceptance of the security merely,' or from other cir- 
cumstances, e.g., the course of business between the parties 
and commercial usage of the place,' equality in artiount of the 
security and the debt ; ' or the surrender of securities,' or some 
other consideration." Thus far the authorities are agreed. 
(3.) If so taken for a pre-existing debt, though there be no 
other consideration, upon the ground, that by assuming the 
responsibilities of a party to the instrument, {infra), he has 
become a holder for value.'" But in courts denying this 
last position, the person taking accomodation paper as col- 
lateral security for a pre-existing debt, is deemed a holder 
for value as against the mere fact that the paper was given 

' fie European Bank (1872), 8 L. R. Ch. 41. 

^Hedges v. SeaJy (1850), 9 Barb. (N. T.) 214; Trust Co. v. Bank 
(1879), 101 U. S. 68 ; McCrum v. Corbi/ (1873), 11 Kans. 464 ; Temi v. 
Allis (1863), 16 Wis. 478. 

^Bank v. Vanderhorst (1865), 32 N. T. 553 ; Best v. Crall (1880), 23 
Kans. 482 ; Logan v. Smith (1876), 62 Mo. 455 ; Curtis v. Mohr (1864), 
18 Wis. 645. 

^ Goodman Y. Simonds (1857), 20 How. (U. S.) 348; Oates v. Bank 
(1879), 100 U. S. 239 ; Moore v. Ryder (1875), 65 N. Y. 438. 

^Blanchard v. Stevens (1849), 3 Gush. (Mass.) 162 at 169 ; Holzworth 
v. Koch (1875), 26 0. St. 33 ; but see Moore v. Ryder, supra. 

«Cf. Bank v. Bank (1843), 1 How. (U. S.) 234 ; Bigelow, p. 500. 

■■ Of. Michigan Bankr. Leavenworth (1855), 28 Vt. 209. 

« Pratt V. Coman (1868), 37 N. Y. 440 ; Naglee v. Lyman (1859), 14 
Cal. 450. 

^Stotts V. Byers (1864), 17 la. 308 ; Soxborough v. Messick (1856), 6 
0. St. 448. 

'^oSwift'r. Tyson (1842), 16 Pet. (U. S.) 1 ; Brooklyn City Ey. Co. v. 
Bank (1879), 102 U. S. . ; Peacock v. P-ursell (1863), 14 C. B. N. S. 

728 ; Fisher v. Fisher (1867), 98 Mass. 303 ; Manning y. McClure (1865), 
y6 111. 490 ; First Nat. Bank v. Beaird (1878), 3 Bradw. (111.) 239 ; 
Robin-ion v. Smith (1859), 14 Cal. 94 ; Outhwite v. Porter (1865), 13 
Mich. 533 ; Cobb v. Doyle (1868), 7 R. I. 550^ Contra, Bay v. Coddinq- 
ton (1821), 5 Johns. Ch. (N. Y.) 54 ; Stalker v. M'Donald (1848), 6 HiU 
(N. Y.) 93 ; Comstoek v. Hier (1878), 73 N. Y. 269 ; Roxborough y. Mes- 
sick (1856), 6 0. St. 448 ; Jenkins v. Sehaub (1861), 14 Wis. 1 : Trustees 
V. Hill (1861), 12 la. 462 ; Royer v. Ban&(1877), 83 Pa. St. 248 : Davis v. 
Carson (1879), 69 Mo. 609. 

7 



98 



BILLS OF EXCHANGE. 



[art. 85. 



Pledge or for accommodation.' The " discount " of a bill must be dis- 
^®"" ' tinguished from the pledge or deposit of a bill as secur- 
ity.^ A " discounter " is a holder for full value.' The po- 
position of a pledgee is this: If he sue a third party he sues as 
trustee for the pledgor, as regards the difference between the 
amount he has advanced and the amount of the bill. If the 
pledgor could have sued on the bill, the pledgee can recover 
the whole. If the title of the pledgor is defective, the pledgee 
can recover the amount of his advance, provided he took the ■ 
bill without notice (Of. Art. 85).* Like any other bailee, the 
pledgee of a bill must use due diligence with reference to it, 
having regard to the peculiar nature of the thing bailed, e.g., 
he must not part with it ; he must if he can collect it at ma- 
turity ; if he cannot, he must give the proper notices of dis- 
honor.* Banker's Lien. — A lien is "an implied pledge.'" 
A banker has, in the absence of agreement to the contrary, a 
lien on all bills received from a customer in the ordinary 
course of banking business in respect of any balance that may 
be due from such customer.' If the banker knows that the 
bills do not belong to his customer, no lien can attach.' A 
broker who deals in bills has a lien similar to a banker's.' 

sonaftde Art. 85. A " BoTM fide holder for value without 

holder for ■' 

notice.'""'^"'^' notice is a holder for value who, at the time he be- 
comes the holder and gives value, is really and truly 
without notice of any facts which, if known, would 
defeat his title to the bill.^" 

1 Grocer's Bank v. Penfield (1877), 69 N. T. 502 ; Maifland v. Bank 
(1874), 40 Md. S40 ; Cummmgs v. Boyd (1877) 83 Pa. St. at 376. Con- 
tra, Bramhall v. Beckett (1850), 31 Me. 205. 

^ Ex parte Twogood (1812), 19 Ves. 229 ; Be Gomersall (1876), 1 L. R. 
Ch. D. at 142. 

"Id.; Cf. Thiedman v. Goldsmidt (1859), 1 DeG. F. & J. at 11 ; 
nnton V. Peck (1866), 14 Mich. 287 ; Murphy v. Lucas (1877), 58 Ipd. 
360 ; Lav v. Wissman (1873), 36 la. 305. But see Todd v. Shelbourtie 
(1876), 8Hun (N. Y.), 510 ; Holcomh v. Wyckoff (1871), 35 N. J. L. 35. - 

*Reid V. Furnival (1833), 1 Cr. & M. 538 ; Logan v. Cassell (1879), 
88 Pa. St. 288 ; Tooke v. Newman (1874), 75 111. 215 ; Best v. Crall 
(1880), 23 Kans. 482. 

' Peacock v. PtirseU (1863), 14 C. B. N. S. 728. 

^Brandao v. Barnett (1846), 3 C. B. at 531, H. L. 

' Id. ; Johnson v. Uoharts (1876), 10 L. R. Ch. 505 ; Currie v. Mha 
(1876). 1 L. R. Ap. Ca. at 569, H. L. ; Morris v. Preston (1879), 93 111. 
215 ; Cf. Wood V. Bank (1880), 129 Mass. 

'Ex parte Kingston (1871), 6 L. R. Ch. 632. But Cf. Bickerson v. 
Wason (1872), 47 N. Y. 439. 

^ Jones V. Peppercorn (1858), Johns. (N. Y.) 430. 

" Raphael v. Bank (1855), 17 C. B. 161 ; Cf. Whistler v. Forster (1863), 
14 C. B. N. S. at 258 ; Art. 86. 



ABT, 



86.] CONSIDERATION. 99 



iLLrSTEATIOIirS. Smafide 

holder for 

1. C, the holder of a bill payable to his order, transfers it ^011^."' '"" 
to D. for value, but without indorsing it. C. has obtained this 
bill by fraud, but D. has no notice of this. D. is not a bond 
fide holder.' 

3. C, -who resides abroad, transmits to D., his agent in Eng- 
land, a bill for collection. C. has obtained this bill by fraud, 
but D. does not know it. At the time D. receives the bill, C. 
is indebted to him on the balance of account. D. is not a 
hond fide holder for value. He cannot recover on the bill — 
aliter if C. had transmitted the bill to D. in payment of his debt.'* 

3. C. indorses to D. a bill for 1100, to be paid for by two 
instalments of $50. At the time D. gets the bill he pays one 
instalment. Before D. pays the second instalment, he receives 
notice that G. obtained the bill by fraud. D. subsequently 
pays the second instalment. D. is a bond fide holder to the 
extent of $50 only, and that is the sum he is entitled to re- 
cover on the bill.' 

Note. — The terms '■'■hond fide holder," "innocent indorsee," 
&c., are used in the cases as synonymous with " hond fide 
holder for value without notice." The French equivalent, 
" tiers porteur de bonne foi," i. e., " third party holder in good 
faith," well expresses the idea. 

Art. 86; Notice means actual notice — i. e., either Notice. 
knowledge of the facts or a suspicion of something 
wrong, combined with a wilful disregard of the means 
of knowledge.* If, as a fact, a bill is taken for value and 
without notice, it is immaterial that the holder took it 
under circumstances which show gross negligence.^ 

» Art. 104 ; Whistler v. Forster (1863), 14 0. B. N. S. at 258 ; Cf. 
Trust Co. V. Bank (1879), 101 U. S. 68. 

'De la Chaumette v. Bank (1829), 9 B. & C. 208, as explained by Cur- 
rie V. Misa (1875), 10 L. R. Ex. at 164, Ex. Ch. 

^Dresser v. Missouri Co. (1876), 93 U. S. 92 ; Cf. Hubbard v. Chapin 
(1861), 2 Allen, (Mass.) 328. 

^Eaphaelv. Bank (1855), 17 C. B. at 174 ; Oaklei/ v. Oodeen (1861), 2 
F. & F. at 659 ; Re Gomersall (1875), 1 L. R. Ch. D. at 144. 

' Goodman v. Harvey (1836), 4 A. & E. at 876 ; Swan v. North British 
Co. (1863), 2 H. & C. at 184, 185 ; Goodman v. Simonds (1857), 20 How. 
(U. S.) 343. 



AOO BILLS OF EXCHANGE. [aet. 87. 

Notice. IlXUSTEATIOIT. 

D. the holder of a bill indorsed in blank transfers it to E. for 
value. E. suspects that D. had obtained the bill by a false 
representation, and consequently makes no inquiries. As a 
fact, D. stole the bill. E. is not a bond fide holder ; he is af- 
fected with notice.' 

Exception. — The fact that a bill is overdue (Art. 
134), or that there is an irregularity patent on the 
face of it (Art. 138), operates as notice. 

Note. — Test of bond fides. — This has varied greatly. Pre- 
vious to 1820 the law was much as at present, but under the 
influence of Lord Tenterden, due care and caution was made 
the test.^ In 18.34 the King's Bench held that nothing short of 
gross negligence could defeat the title of a holder for value.' 
Two years later Lord Denman states it as settled law that bad 
faith alone could disentitle a holder for value. Gross negli- 
gence might be evidence of bad faith, but was not conclusive 
of it.* This principle has never since been shaken in England, 
and it seems now finally established in America.* Principal 
and Agent. — As regards the parties afi^ected with notice the ordi- 
nary rules of law apply to bills. Notice to the principal is 
notice to the agent ; and notice to the agent is notice to the 
principal, subject to this: when the agent is himself a party 
to a fraud, he is not to be taken to have disclosed it to his 
principal." Again, when a bill is negotiated to an agent and 
notice is given to the principal, or vice versd, there must be 
a reasonable time for communication.' 

Holder claim- Art. 87. A holdcr who derives liis title to a bill 

Inff under btma 
fide holder. 

1 Cf. Jones V. Gordon (1877), 2 L. R. Ap. Ca. at 628, H. L.: Parsons v. 
Jackson (1878), 99 U. S. 434 

^Gill V. Cubitt (1824), 3 B. & C. 466. 

= Crook V. Jadis (1834), 5 B. & Ad. 909. 

* Goodman v. Harvey (1836), 4 A. & E. at 876 : Goodman v. Simonds 
(1857), 20 How. (U. S.) 343. 

^ Mu/rray \. Lardner (l^U), 2 Wall. (U. S.) 110 ; Collins -f. Gilbert 
(1876), 94 U. S. 753; Farrelly. Lovett (1878), 68 Me. 326 ; Worcester 
Bamk v. Bank (1852), 10 Cush. (Mass.) 488 ; Chapman v. Rose (1874), 
56 N. T. at 140 ; Howry v. Eppinger (1876), 34 Mich. 29 ; Johnson v. 
Way (1875), 27 0. St. 374 ; Shreeves v. Allen (1875), 79 III. 553 ; Kelley 
V. Whitney (1878), 45 Wis. 110. Contra, only in Tenn., Merritt v. 
Duncan (1872), 7 Heisk. 156. 

^Ex parte Oriental Bank (1870), 5 L. R. Ch. 858. 

' Cf. Willis V. Bank (1835), 4 A. & E at 39. 



AET. 



3.] CONSIDERATION. 1^ 



through a bona fide holder for value without notice P|'^f,'"<jf/j^Ja 
has all the rights of such bona fide holder against the ■''* ''°^'*'"'- 
acceptor and all prior parties, although he himself 
may have given no value, and may be affected with 
notice.^ Cf. Art. 134, Expl. 2. 

Illustkations. 

1. C, a partner in a firm, fraudulently indorses a firm bill 
to D. in payment of a private debt. F. is cognizant of the 
fraud, but is not a party to it. D. indorses the bill to E., who 
takes it for value and without notice. E. indorses it to F. F. 
acquires E.'s rights. If he gave value to E., he can sue all the 
parties to the bill ; if he did not give value, he can sue all 
parties except E.'^ 

2. C. by fraud, induces B. to make a notf in his favor. C. 
indorses the note to D., who takes it for value and without 
notice. Subsequently D. indorses the note for value back to 
C. C. cannot sue B.' 

Aft. 88. Any defense available against an imme- immediate ana 

..-,,, . 1 . remote parties. 

diate party is available against a remote party who is 
in privity with such immediate party. 

Explanation 1. — "Immediate parties" are parties 
in direct relation with each other. All other parties 
are remote. Prima fade, the drawer and the acceptor, 
the drawer and the payee, the indorser and his in- 
dorsee, are in direct relation. 

Illusteations. 
1. A. draws a bill on B. payable to C, and delivers it to the 
latter. B. accepts the bill while in C.'s hands. B. and C. are 
remote parties.* 

> May V. Chapman (1847), 16 M. & W. 355 at 361 ; Masters v. IVber- 
son (1849), 8 C. B. 100; Com'rs v. Clark (1876), 94 U. S. 278; 
Woodworth v. Huntoon (1865), 40 111. 131; Mowyer v. Cooper (1872), 
35 la. 257. 

-Id. 

^ Cf. Sawyer v. Wisewell (1864), 9 Allen (Mass.), at 42 ; Calhoun v. 
^nSm (1871), 48 Mo. 304. 

^Eohinson v. Reynolds (1841), 2 Q. B. 196, Ex. Ch. 



102 



BILLS OF EXCHANGE. 



[aet. 89-90. 



Imtnecliate and 
remote parties. 



Presumption 
of value. 



Apcommoda- 
tioii bili or 



parly. 



3. B. makes a note payable to C. Primd fade, B. and C. 
are immediate parties ; but if it appear that B. made the note 
at the request of X., under the belief that he had done some- 
thing which he had not done, and that X. on his own account 
delivered the note to C, who gave vaFue and took it without 
notice, then B. and 0. are remote parties.' AUter if X. had 
been C.'s agent.^ 

Explanation 2. — Privity is created in all cases by 
want of consideration, and in some cases by notice : 
it may also be created by agreement. 

Note. — 1. The holder of a bill who has not himself given 
value is, as regards third parties, deemed to be the agent of the 
party from whom he received it, whatever their private relations 
may be.° 3. Notice creates privity when it is notice of defect- 
ive title in the party from whom the bill is taken, i. e., notice 
that he^ad no right to hold the bill or no right to part with it.* 
Title to a bill must be distinguished from the right to enforce 
payment of it against particular parties — e.g., the donee of a 
bill has a good title though he could not enforce payment 
against the donor.* Whenever a bill is held adversely to the 
true owner, and there is privity between the true owner and 
the de /'ado holder, a third party if sued, may set up the jns 
tertii.^ 3. Again, when a person expressly or impliedly agrees 
to hold a bill as agent or trustee for another person, he holds 
it subject to all defenses against the person for whom he holds, 
irrespective of the state of accounts between them.' 

Art. 89. Every party to a bill is prima ffuiie 
deemed to liave become a party thereto for value.^ 
Art. 90. "Accommodation bill" means a bill where- 

' Cf. Watson v. Bussell (1862), 3 B. & S. 34 ; Lea v. Cassen (1878), 61 
Ala. 312. 

^Astley V. Johnson (1860), 5 H. & N. 137. 

' Cf. Fitch V. Jones (1855), 5 E. & B. at 246, and cases cited in Art. 97 ; 
also, Lee v. Sayes (1865), 17 Ir. C. L. at 408. 

*See, e.g., Arts. 23, 54, 55, 134. 

'See, e.g., Art. 83, Bxpl. 4, and Arts. 91, 134, 141. 

*See, e.g., Arts. 55 ana 94. 

''Be la ChaumeMe v. Bank (1829), 9 B. & C. 208, as explained, Cur- 
rie V. Misa (1875), 10 L. R. Ex. at 164, Ex. Ch.' 

« Cf. HatchY. Trayes (1840), 11 A. & E. 702 ; Foster y. Dojcfter (1851), 
6 Exch. at 853 ; Townsend v. Derby (1841), 3 Met. 363 ; Adams v. 
Adams (1878), 25 Minn. 72. 



AET. 90.] CONSIDERATION. 103 

of the acceptor {i. e., the principal debtor on the in- 4on°SiT m*" 
strument) is substantially a mere surety for some other p"'^- 
person who may or may not be a party thereto.-*- 

" Accommodation party " means a person who has 
signed a bill as drawer, indorser, or acceptor, without 
receiving value, and . for the purpose of lending his 
name to some other person, as a means of credit. 

Illtjsteations. 

1. A. draws a bill on B. B. accepts it to accommodate A, 
It is negotiated. This is an accommodation bill.^ 

3. A. draws and indorses, and B. accepts, a bill for the ac- 
commodation of X., -who is not a party thereto. A. and B. re- 
ceive a commission for so doing. This is an accommodation 
bill.' 

3. A. dra-ws a bill on B. against a running account. B. ac- 
cepts. This is not an accommodation bill, although the bal- 
ance may have been against A. -when the bill was drawn or 
accepted, or payable.* 

4. A. draws a bill on B. in favor of C. It appears that B. 
was indebted to C, and that A. drew the bill to accommodate 
B. This is not an accommodation bill, though A. is an accom- 
modation drawer.' 

5. A. draws a bill on B. B. accepts for value. 0., whose 
name is well known, indorses the bill to give it currency. This 
is not an accommodation bill, but C. is an accommodation in- 
dorser.' 

Explanation. — An accommodation party known to 

>Cf. Oriental Corp. v. Ocerend (1871), 7L. R.Ch. at 146, 151 • 7L R 
H. L. at358 ; Ex parte European Bank (1871), 7 L. R. Ch. 99. 

^CollottM. Haigh (1812), 3 Camp. 281. 

' Oriental Corp. v. Overend, supra. 

^ Ex parte Swan (1869), 6 L. R. Bq. at 356; Cf. Wilks v. Hornhu 
(1862), 10 W. R. 742 ; Farmers Bank v. EatMone (1852), 26 Vt. 19 

' Scott y. Ufford (1808), 1 Camp. 246; Cf. Sleigh v. Sleigh (1850), 5 
Exch. 514. 

«Cf. EeNunn (1817), Buck. 113. Practice not uncommon in case of 
foreign biDs : See e.g., Societe G4ndrale v. Bank (1873), 27 L. T. N. S. 



104 



BILLS OF EXCHANGE. 



[aet. 91, 



Absence of 
value. 



tion°Su or "■' ^^ sucli, may avail himself of any defense which the 
party. person accommodated could have set up.^ 

Illitsteation. 

B. and X. make a joint and several note payable to C. B. 
signs as maker to accommodate X. 0. takes the note knowing 
this. If C. sue B., B. can set off a debt due from C. to X.^ 

Note. — A bill which is signed by one or more accommo- 
dation parties is frequently called an accommodation bill, but 
the definition given above is believed to be more strictly cor- 
rect. The distinction becomes of importance when questions 
arise as to what is or is not a discharge of the bill, e.g., pay- 
ment, by person accommodated, or the giving of time to such 
person. See, too. Arts. 168, 245. 

Art. 91. Mere absence of consideration, total or 
partial, is matter of defense against an immediate 
party or a remote party, who is not a holder for value, 
but it is not a defense against a remote party who is a 
holder for value.^ 

Explanation. — An accommodation party is liable to 
a holder for value, who takes a bill knowing him to be 

such.* 

Illtjstbations. 

1. B., by way of gift, makes a note in favor of C. C can- 
not sue B.* 

3. C, the holder of a bill for value, indorses it to D. by 
way of gift. The property in the bill passes to D., but he can- 
not sue C 

3. A. draws a bill on B. for $100. B. accepts it to accom- 

1 Beckervaise v. Wight (1872), 7 L. R. C. P. 372, at 377. 

2 Id. 
' Cf. Forman v. Wright (1851), 11 C. B. at 492 ; Notoak v. Excelsior 

Co. (1875), 78 ni. 307 ; Woolen v. Vanhirh (1878), 61 Ind. 497. 

^ Scott Y. Lifford, supra ; Strong v. Foster (1855), 17 C. B. at 822; 
Petty V. Cooke (1871), 6 L. R. Q. B. 790 ; Thompson v. Shepherd (1847), 
12 Met. (Mass.), 311 ; Winters v. Ins. Co. (1870), 30 la. 172 ; Cf. Arts. 
83, 90. 

^Holliday v. Atkinson (1826), 5 B. & C. 501 : Cf. Hill v. Buckminsier 
(1827), 5 Pick. (Mass.) 390. 

« Easton v. Prafchett (1835), 1 C. M. & R. at 808 : Cf. Milnes v. Daw- 
son (1850), 5 Ex. Ch. 948. 



AET. 9^.] CONSIDERATION. 105 

modate A. A. discounts it with C, who knows that it is an Absence of 

value, 
accommodation bill. C. can sue A. or B. for $100 ; ' but if C, 

instead of discounting it, merely advanced $50 on it, he can 

only recover 150.^ If C. discount the bill, and pledge it with 

D. for $50, D. can recover $100 from B., and he will hold $50 

thereof in trust for C.° 

4. B. owes A. $50. A. draws a bill on B. for $100. B.,to 
accommodate A., and at his request, accepts it. If A. sueB. he 
can recover only $50.* 

5. C. is D.'s agent abroad. C. purchases a bill for D. The 
bill is made payable to C.'s order, and he indorses it to D. 
This is done merely for the purpose of safe transmission, and 
not to guarantee the bill. If the bill is dishonored, C. is not 
liable to D. as indorser.^ 

6. A. and C. supply goods to B. A. draws a bill on B. for 
the price, and indorses it to C. to collect on joint account. If 
the bill is dishonored, A. is not liable to C 

7. B. accepts a bill drawn by A., to accommodate him. A. 
indorses it to C. without receiving value. 0. indorses it to D. 
without receiving value. D. cannot recover from B., but it 
lies on B. to show that neither D. nor any intervening holder 
was a holder for value.' 



of value. 



Art. 92. Total failure of consideration is a de- Total failure 
fense against an immediate party, but it is not a de- 
fense against a remote party who is a bona fide holder 
forfvalue without- notice.^ 

' Cf. Mills V. Barber (18-36), 1 M, & W. 425 ; Sturtevant v. Ford 
(1842), 4 M. & 6r. 101 ; Fowler v. Strickland (1871), 107 Mass. 552. 
Contra, Holeman v. Hobson (1847), 8 Humph. (Tenn.) 127. 

2 Nash V. Brown (1817), cited Chitty, p. 60 ; Jones v. Sibbert (1817), 
2 Stark. 304 ; Be Gomersall (1875), 1 L. R. Ch. D. at 144 : Chicopee 
Bank v. Chapin (1844), 8 Met. (Mass.) at 44. 

^Allaire v. Hartshorne {ISil), 1 Zabr. (N. J.) 665 ; Hilton v. Smith 
(1855), 5 Gray, (Mass.), at 402. 

^ Darnell v. Williams (1817), 2 Stai'k. 166. Cf. Thomas v. Thomas 
(1859), 7 Wis. 476. 

' Castrique v. Buttegieg (1855), 10 Moore, P. C. 110 ; Kimmell v. Bitt- 
ner (1869), 62 Pa. St. 203 : Cf. Re Nunn (1817), Buck. 113. 

« Denton v. Peters (1870), 5 L. R. Q. B. 475. 

' Mills V. Barber (1836), 1 M. &. W. 425 : Cf. Thompson v. Clubley 
(1836), 1 M. & W. 212. 

'Robinson v. Reynolds (1841), 2 Q. B. at 2il, Ex. Ch. ; Aldrich v. 



106 BILLS OF EXCHANGE. [aet. 93. 

Total failure IlLUSTEATIONS. 

of value. 

1. B. makes a note payable to C. The only consideration 
is that C is to act as B.'s executor. C. dies first. His per- 
sonal representatives cannot enforce payment against B.' 

2. B. authorizes A. to draw on him against bills of lading. 
A. draws a bill on B. and indorses it to C. with the bill of lad- 
ing attached. (J. gives value to A. B. accepts the bill on re- 
ceiving from C. the bill of lading. The bill of lading turns out 
to be a forgery, but 0. did not know it when he obtained the 
acceptances. 0. can sue B.^ 

3. A. draws a bill at three months on B., his agent, in favor 
of C, who agrees to pay therefor in seven days. B. accepts on 
A.'s account. 0. does not pay A. for the bill. . 0. cannot sue B.° 

4. A. draws a bill on B. payable to his own order. B. ac- 
cepts. The consideration between A. and B. fails. A. subse- 
quently indorses the bill for value to C, who knows that the 
consideration between A. and B. has failed. C. cannot sue B.* 

Note. — Failure df consideration, it seems, is a defense 
against a remote holder for value with notice. The reason 
probably is that it is in the nature of a fraud to negotiate a bill 
when the holder knows that the consideration on which he re- 
ceived it has failed.^ But might there not be cases in which it 
would not be a fraud to do so ? Again, qu. as to the eifect of 
failure of consideration after the maturity of the bill, i. e., after 
a cause of action has accrued ?° When the consideration for 
a bill fails, the court will usually restrain its negotiation by in- 
junction.' 

Partial fauure Art. 93. Partial failure of consideration is a de- 

of value. . . T . 

fense pro tanto against an immediate party when the 

Stockwell (1864), 9 Allen- (Mass.), 45 ; as to vrhat amounts to tota] fail- 
ure. Wells V. Hopkins (1839), 5 M. & W. 7; Hooper v. Treffery (1847), 

1 Exch. 17. 

^ Solly V. Hmde (1834), 2 Cr. & M. 516. 

2 Robinson v. Reynolds (1841), 2 Q. B. 196, Ex. Ch. ; Cf. Craig v. Sih- 
lett (1850), 15 Pa. St. 238 ; Leather v. Simpson (1871), 11 L. R. Eq. 398. 

''Astley V. Johnson (1860), 5 H. & N. 187. 

"LoydY.Dames (1824), 3 L. J. K. B. 38; Cf. Fairclough v. Pavia 
(1854), 9 Ex. Ch. 690 (same principle assumed) : Starr v. Torrey (1849), 

2 Zabr. (N. J.) 190. 

« Cf. Oulds V. Harrison (1854), 10 Ex. Ch. at 579. 
«Cf. Watson r. Russell (1864), 5 B. & S. at 968. 
■■ Cf. Patrick v. Harrison (1792), 3 Bro. C. C. 476 : Bainhridge v. 
Hemingway (1865), 12 L. T. N. S. 74. 



AET. 94.] CONSIDERATION. • 107 

failure is an ascertained and liquidated amount, But ^l^rtmmiiure 
not otherwise.^ It is not a defense against a remote 
party wlio is a holder for value.^ 

Illustrations. 

1. B. accepts a bill for $100 drawn by A. This is the agreed 
price of goods to be supplied by A. to B. When the goods 
arrive they are found to be inferior to sample, and worth only 
$80. B. retains the goods. If A. sue B. on the bill, this is not 
a defense pro tanto.' 

2. B. accepts a bill for $100. This is the agreed price of two 
bales of cotton to be supplied by A. to B. A. only delivers one 
bale. A. indorses the bill to 0., his agent, to collect. 0. can 
only recover $50.* 

3. B. accepts a bill drawn by A. for $100. This is the agreed 
price of two bales of cotton to be supplied by A. to B. When 
the cotton arrives, one bale is found to be inferior to sample 
and is returned as useless. A. indorses the bill to C. without 
value. If C. sues B. he can only recover $50, the price of the 
one bale which is kept.^ 

NoTB. — In some cases of partial failure of consideration, the 
Court would (perhaps) restrain the holder from negotiating the 
bill after notice.' 

Art. 94. Fraud is a defense against an immediate J'™-! <«■ 

o duress. 

party and against a remote party who is not a bona 
fide holder for value without notice.'' 

Mcplanation 1. — A bill is affected with fraud when 

1 Dmj V. Nix (1824), 9 Moore, 159 ; Warwick v. Nairn (1855), lOExch. 
762 ; Davis v. Bean (1874), 114 Mass. 858 ; HolzwoHh v. Koch (1875), 26 
0. St. 33. Defense though unliquidated, Stacy v, Kemp (1867), 97 Mass. 
166 ; Spalding v. Vandereook (1829), 2 Wend. (N. T.) 431 ; Reese v. 
Gordon (1861), 19 Cal. 147 ; Peterson v. Johnson (1867), 22 Wis. 21. 
And by statute in Ind., N. H., lU., and other States. 

-Archer v. Bamford (1822), 3 Stark, 175 ; Stevens v. CamphellV\&&\), 
13 Wis. 419 ; Cf. Richards v. Betzer (1870), 53 111. 466. 

^ Glennie v. Imri (1839), 3 Y. & C. 436. Contra, cases supra, 

<Cf. Agra Bank v. Leighton (1866), 2 L. R. Ex. at 64, 65. 

= Id. 

«Cf. Jacohson v. Shanks (1866), 12 Jur. N. S. 917. 

'Arts. 85 and 187 ; Whistler v. Forster (1863), 14 C. B. N. S. at 258 ; 
Fisher v. Leland (1849), 4. Gush. (Mass.) 456. 



1 08 BILLS OF EXCHANGE. [aet. 95. 

Fraud or the issue OP anv subsequent negotiation of it is ob- 

duruss, J 1. a ^ 

tained by fraud,^ or coercion, or when it is negotiated 
. in breach of faith/ or in fraud of third parties,* 

Explanation 2. — The holder of a bill subsequent to 
a fraud, who is not a bona fide holder for value without 
notice, cannot enforce payment against any party 
thereto, neither can he retain the bill against the true 
owner.^ 

Note. — When the consideration for a bill is clearly fraudu- 
lent, and it is in the hands of a party with notice, the Court 
■will order it to be given up at once." When only a prim($ 
facie case of fraud is made out, the Court will restrain the' 
negotiation of the bill for a specified time, in order that the 
* question may be tried.' 

Illegal consid- Art. 95. Illegality of consideration, total or par- 
tial,^ is a defense in toto against an immediate party 
or a remote party who is not a bona fide holder for 
value without notice.^ 

1 Wienholt v. Smtta (1813), 3 Camp. 376 ; Dawes v. Harness (1875), 10 
L. R. C. P. 166 ; Von Wmdisch v. Klaus (1878), 46 Conn. -433. But no 
defense if defendant retains any part of the consideration, Heaton v. 
Knowlton (1876), 53 Ind, 357. 

2 As to duress, Duncanr. Scott (1807), 1 Camp. 100 (onus probandi); 
Kearns v. Durrell (1857), 6 C. B. 596 ; HeyshamY. Dettre (1879), 89 Pa. 
St. 506 ; Loom.is v. Buck (1874), 56 N. T. 462 ■ Barnes v. Stevens (1878), 
62 Ind. 226; SegrumY. PregcoU [1879), 69 Me. 376. 

^Lloijd. V. Howard (1850), 15 Q. B. 995 ; Barber v. Richards (1851), 6 
Exch. 63 ; <?age v. Sharp (1867), 24 la. 15 ; Cf. Art. 55. As to diver- 
sion of accommodation paper, Nickerson v. Ruger (1879), 76 N. Y. 279 ; 
Reed v. Trentman (1876), 53 Ind. 438. 

* Jones v. Gordon (1877), 2 L. E. Ap. Ca. 616, H. L.; Fay v. Fay 
(1877), 121 Mass. 561 ; Bastian v. Dreyer (1879), 7 Mo. Ap. 332. 

^ Id.; Lloyd v. Howard, supra ; Alsagery. Chase (1842), 10 M. & W. 
576. 

^ Joyce on Injunctions, p. 369 ; and see Jones v. Lane (1829), 3 T. & 
C. at 293. 

'Id. 

^Perkins v. Cummings (1854), 2 Gray (Mass.), 258 ; Wisner v. Bard- 
well (1878), 38 Mich. 278 ; Widoe v. Webb '(1B70), 20 0. St. 431. Rule 
modified, Warren v. Chapman (1870), 105 Mass. 87 ; Doty v. Bank 
(1865'|, 16 0. St. 133. Cf. Art. 93. 

^Hay V. Ayling (1851), 16 Q. B. at 431 ; Scollans v. Flynn{\%l^), 120 
Mass. 271 ; Shirley v. Howard (1870), 53 111. 455 : Atwood v. Weeden 
(1879), 12 R. I. 293. 



AET. 96-97.] CONSIDERATION. 109 

Explanation. — The consideration for a bill is illegal ™^gj,f°°'^'^" 
when it is wholly or in part immoral, contrary to 
public policy, or forbidden under penalties by statute.^ 

Note. — When old cases are referred to it is important to 
notice whether the consideration was simply illegal or whether 
it was a consideration which by statute expressly made the bill 
void.' Again, an illegal consideration must be distinguished 
from a merely void consideration.' In America it has been 
held that if B. for value make a note payable to C, and 0. for 
an illegal consideration indorse it to D., then D. can sue B., 
though he could not sue C* 

Art. 96. When a bill is given for a consideration BiiisvoM 

,.11 11 . . 1 . . l>y statute. 

whicn by statute expressly makes it void, it is as 
against the party who gave it void in the hands of all 
parties whether immediate or remote.^ 

Illustration. 

A. draws a bill on B. payable to his own order. B. accepts 

it for a consideration, which by statute avoids it. A. indorses 

it to C, who takes it for value and without notice. C. can sue 
A.,° but he cannot sue B.' 

Note. — Both in England and America, it is no longer the 
policy of the law to declare a note expressly void by statute, 
and where such statutes exist, a clause is often inserted, saving 
the rights of an innocent holder. Usury laws still exist in some 
of the States, but they are becoming obsolete, and questions 
under such statutes arise less frequently. 

Art. 97. The holder of a bill is prima facie deemed Presumption 

•^ "^ of Viilue and 

&ona Jides may 

1 Cf. Fitch V. Jones (1855), 5 E. and B. 238 ; Daniel, § 195 : Fareira v. °'''"' 
Gabell (1819), 89 Pa. St. 89 (stock gambling contract). 

2 Oates V. Bank (1879), 100 U. S. at 349. 
^ Fitch v. Jones, supra. 

* Armstrong v. Gibson (1872), -31 Wis. 66 ; Knights y. Putnam (1825) 
3 Pick. (Mass.) at 185. Contra, Nichols v. Fearson (1833), 7 Pet (U S ) 
103. ' 

^Edwards v. Dich (1821), 4 B. & Aid. 212 ; Towne v. Rice (1877), 122 
Mass. at 71 ; Aurora v. West (1864), 22 Ind. 88 ; Eagle v. Kohn (1876). 
84 m. 292 ; Cowing v. Altman (1877), 71 N. Y. 435. 

^Edwards v. Dich (1821), 4 B. & Aid. 212. 

'Id. ; Reed v. Wiggins (1862), 13 C. B. N. S. 220. 



110 BILLS OF EXCHANGE. [akt. 97. 

Presumption to be a boua fide holder for value without notice:^ but 

of vrtlue and •/ ' 

ma^ ^Mft. if an action on a bill it is admitted or there is evidence^ 
that the issue or subsequent negotiation of such bill is 
affected with fraud or illegality, the onus probandi as 
to value is shifted, and the holder is called upon to 
prove that he is a holder for value.^ 
Illustrations. 

1. A. draws a bill on B. and indorses it to C C. sues B. 
It is shown that.B. accepted it for A.'s accommodation. C. is 
not called on to prove that he gave value ; he can recover with- 
out so doing.* Aliter,- if a fraudulent diversion of the paper 
is shown.^ 

3. B. makes a note payable to 0. 0. indorses it to D., who 
sues B. If it appears that B. made the note for an illegal con- 
sideration, D. must prove that he gave value.' 

3. The holder of a bill indorses it to D. to get it discounted. 
D. fraudulently negotiates it to E., who negotiates it to F. F. 
sues the acceptor. Evidence is given of D.'s fraud. F. must 
prove that he is the holder for value.' 

4. B. makes a; note payable to C, the consideration for which 
is a wager, i. e., a consideration void by statute, but not prohib- 
ited under a penalty. C. indorses it to D. who sues B. Evi- 
dence is given of these facts. D. is not called on to prove that 
he gave value.' 

» King v. Milsom (1809), 2 Camp. 6 ; Collins v. Gilbert (1876), 94 U. 
S. 753 ; Boot v. Cook (1876), 81 III. 261 ; Hall v. Allen (1871), 37 Ind. 
541. But this primd facie presiiuiption does not shift the burden of 

f\roof which remains on the plaintifl, Delano v. Bartlett (1850), 6 Gush. 
Mass.), 364 ; Small v. Clewley (1871), 62 Me. 155 ; Atlas Bank v. Doi/le 
(1868), 9 R. I. 76. 

'' Hall V. Featherstone (1858), 3 H. & N. at 286 (evidence to go to a jury). 

^ Jones V. Gordon (1877), 2L. R. Ap. Ca. at 627, 628, H. L.; Conley v. 
Winsor (1879), 41 Mich. 264; Sistermans v. Fi^ld (1857), 9 Gray 
(Mass.), 831 ; Sperry v. Spalding (1873), 45 Cal. 544. 

'Mills Y.Barber (1836), 1 M. & W. 425 ; Ha -v. Worrall (1877), 
69 N. Y. 370 ; Dingham v. Amsinh (1874), 77 Pa. ^t. 114. But Of. 
Merchants Bank v. JV. B. Sav. Imt. (1868), 33 Is J. L. 170. 

5 Nicherson v. Buger (1879), 76 N. Y. 279. 

'Bailey v. Bidwell (1844), 13 M. & W. 73 ; Bottomley v. Goldsmith 
(1877), 36 Mich. 27 ; Emerson v. Burns (1874), 114 Mass. 348. 

'Ct. Smith Y. Braine (1851), 16 Q. B. 244; Berry v. Alderman 
(1858), 14 C. B. 95. 

'Fitch V. Jones (1855), 5 E. & B. 238. 



ART. 97.]. CONSIDERATION. HI 

5. Action against the maker of a note payable to bearer. It Presumption 
is shown to have been stolen from the true owner. It lies on ima fides 

may sliift. 

the holder to prove that he gave value.' 

6. An acceptance is given in renewal of a bill which turns 
out to be a forgery. The genuine bill is negotiated, and the 
holder sues the acceptor. Evidence is given of these facts. It 
lies on the holder to prove that he is a holder for value.^ 

' 7. A partner accepts a bill in the firm's name for a private 
debt and in fraud of his co-partners. The bill is negotiated 
The holder sues the firm as acceptors. As soon as it appears 
that the bill was given for a private debt, the holder is called 
upon to prove that he is a holder for value.^ 

Note. — If the holder show that he is a holder for full value, 
the defendant must give evidence that the plaintiff took the 
bill with notice, for the giving of value raises a presumption of 
good faith ;* but the plaintiff has the burden of proof that he is 
a holder for value and iu good faith.'' In America it is held 
that if the holder has in good faith given partial value, he may 
recover pro tanto.^ Probably the same would be held in 
England. 

^Raphael v. Bank (1855), 17 C. B. 161 ; RoUnson v. Hodgson (1878), 
78 Pa. St. 202. Except bank notes, Wijer v. Banh (1853), 11 Cush. 
(Mass.) 51. 

'Mather v. Maidstone (1856), 1 C. B. N. S. 273, 

'Hogg V. Skeen (1865), 18 C. B. N. S. 426 ; Bank v. Gilliland (1840), 
28 Wend. (N. Y.) 311. 

^Raphael v. Banh, supra; Murray v. Lardner (1864), 2 Wall. (U. S.) 
110 ; Dalrymple v. Hillenbrand (1875), 62 N. Y. 6, 11 ; Davis v. Bart- 
htt (1861), 12 0. St. 541. 

^Kellogg v. Curtis (1879), 69 Me. 212 ; Cf. Jones v. Gordon (1877), 
2 L. R. Ap, Ca. at 628 ; Smith v. Livingston (1873), 111 Mass. 342. 

« Holcomb V. Wyckoff (1870), 35 N. J. L. 35 ; Dresser v. Missouri Co. 
1876), 93 U. S. 92. 



CHAPTEE IV. 

TRANSFER. 
Transmission by Act of Law. 

Maiiiage. Art. 98. If a bill be held by an unmarried woman 

who subsequently marries, or if a bill be made pay- 
able or be indorsed to a married woman, the title thereto 
vests in the husband, provided he reduce it into pos- 
session.-^ 

Explanation 1. — If the husband dies without hav- 
ing reduced the bill into possession, the title thereto 
reverts to the wife if she be alive, and passes to her 
personal representatives if she dies before her hus- 
band.2 

Explanation 2. — During the marriage, the hus- 
band is for all purposes deemed to be the holder of a 
bill payable to the order of his wife, whether it was 
made payable to her before or after the marriage.^ 

IliLUSTKATIONS. 

1. Bill payable to the order of C, a single woman. C. 
marries D. C, after marriage, indorses the bill to E. ■without 

. 'Cf. Fleet V. Perrins (1868), 3 L. R. Q. B. at 541, affirmed 4 L. R. Q. 
B. 500 ; Commonwealth v. Manley (1831), 12 Pick. (Mass.) 173. As to 
what is or is not a reduction of bill into possession : Cf. ifash v. Nash 
(1817), 2 Mad. 133; Sherrington v. Tates [1844), 12 M. & W. 855, esp. at 
865, Ex. 01 . : TJart v. Stephens (1845), 6 Q. B. 937 ; Scarpelini v. Atche- 
son (1845), 7 Q. B. at 875-876 ; Latourette v. Williams (1847), 1 Barb. 
(N. T.) 9. 

^ Hart ^. Stephens, supra ; Draptr y. Jackson (1820), 16 Mass. 480; 
Williams on Executors, 7 ed., pp. 848-852. 

'Cf. McNeilage v. Holloway (1818), 1 B. & Aid. 218. 

(112) 



AET. 99.] TRANSFER. 113 

her husband's consent. The indorsement is invalid.' but D. Marriage. 
could validly indorse the bill, using his own name.^ 

3. A note is made payable to the order of C, a married 
■woman. Her husband indorses it in his own name. This is a 
valid indorsement.' 

Note. — "When a bill is made payable to the order of a 
married woman, the husband may sue on it in his own name 
alone, or if he likes he may join his wife.* When a bill is pay- 
able to the order of a single woman, who subsequently marries, 
both husband and wife should join in an action on it ; but it 
has been held that the husband may sue alone.° 

Exception — Bill forming part of wife's separate 
estate.^ 

Art. 99. On the deatli of the holder of a bill the Death, 
title thereto passes to his personal representatives 
(executors or admiuistrators, as the case may be) .'' 

Illttsteatioks. 

1. C , the holder of a bill payable to order, dies. His ad- 
ministrator, as such, can enforce payment of it or indorse it 
away, using his own name.' 

2. C, the holder of a bill payable to order, dies, having 
specifically bequeathed it to X. X. cannot sue on it or indorse 
it away, unless he first obtain an indorsement of the bill to him 
by C.'s executor.' 

Note. — An executor or administrator who indorses a bill 

' Connor v. Martin (1746), cited 3 Wils. at 5 ; Savage v. King (1840), 
17 Me. 301. 

^Roberts v. Place (1846), 18 N. H. 183. 

^ Mason v. Morgan (1834), 4 N. & M. 46 ; Cf. SmiU v. Jfarsac^fc (1848), 
6 0. B. 486 at 503. 

*Fleet Y. Perrins (1868), 3 L. E. Q. B. at 541. 

^McNeilage v. Holloway (1818), 1 B. & Aid. 218 ; but Cf. Sherrington 
V. Yates (1844), 12 M. & W. at 865, Ex. Ch. ; Morse v. Earl (1835), 13 
Wend. (N. Y.) 271. 

« Green v. Carlill (1877), 4 L. R. Ch. D. 882, and Arts. 65, 66 : Cf. 
Art. 81, Bxcep. 2. 

■■ ClarTc v. Sigourney (1846), 17 Conn. 511 ; Mitchell v. Dicirson (1876), 
53 Ind. 110. 

* Rawlinson v. Stone (1746), 3 Wils. 1 Ex. Ch. ; Makepeace v. Moore 
(1849), 5 Gilm. (111.) 474 ; Herself v. Elliott (1878), 67 Me. 526. 

» Crist T. Crist (1849), 1 Cart. (Ind.) 570. 

8 



114 

Death. 



BILLS OF EXCHANGE. 



[aet. 103-1- 



sliould, in express terms, exclude personal liability, Of. Art. 76; 
and as he is not the agent of the deceased he cannot by his de- 
livery complete an indorsement written by the latter. He 
must indorse it de novo ; Art. 54. When there are two or 
more executors, the indorsement of one is probably sufficient 
to transfer the property in the bill.^ Another case of trans- 
mission by act of law occurs in case of the death of a joint 
payee, when the title vests at once in the survivor.^ 



Assignment 



ngni 
sale. 



Transfer by Assignment. 

Art. 103. A bill may be transferred by assignment 
or sale, subject to the same conditions that would be 
requisite in the case of an ordinary chose in action. 



Illtistkation. 

C. is the holder of a note payable to his order. He may 
transfer his title to D. by a separate writing assigning the note 
to D.,' or by a voluntary deed constituting a declaration of 
trust in favor of D.,* or by a written contract of sale.^ 

NoTE.^ — A bill is a chattel, therefore it may be sold as a 
chattel. A bill is a chose in action, therefore it may be as- 
signed as a chose in action. It is clear that a subsequent title 
under the law merchant would override a prior title under a 
sale or assignment according to the general law, e.g., C, the 
holder of a bill payable to bearer, assigns by deed certain prop- 
erty, including the bill, to D. C. no longer has any-property 
in the bill, but he holds it, and if he transfer it by delivery to 
E,, who takes it for value and without notice, E.'s title over- 
rides D.'s.* 

Bills to order Art. 104. If the holdcr of a bill payable to order 

transferred p p 

dirsemeit.' transfers it for value without indorsing it the trans- 

' Wheeler v. 'Wheeler (1828), 9 Cow. (N. T.) 34 : DwigU v. Newell 
(1854), 15 111. 333. 

"Cf. Russell v. Swan (1820), 16 Mass. at 316. 

'JJe Barrington (1804), 2 Scho. & Lef. 112; FranMin v. Twogood 
(1865), 18 la. 515 ; French v. Turner (1860), 15 Ind. 59. 

'^Richardson v. Richardson (1867), 3 L. R. Eq. 686 ; Cf. Burrows v. 
Keays 1877), 37 Mich. 431. 

^Sheldon v. Parker (1874), 3 Hun (N. Y.) 498. 

"Cf. Id.; Aulton v. Atkins (1856), 18 C. B. 249. 



ART. 104.] TRANSFER. 115 

action operates as an equitable assignment of thebill.^™jfgg^°j^«'' 

The transferee also acquires the right to compel in- aorsemeS." 
dorsement.'^ 

Illustrations. 

1. C.jthe holder of a bill payable to order, transfers it to D. 
for value without indorsing it. D. cannot sue the acceptor in 
his own name, or negotiate the bill by indorsing it to E.^ 

3. A. draws a bill on B. payable to his own order. B. ac- 
cepts. A. discounts the bill with C, but by mistake or fraud 
omits to indorse it. C. indorses the bill in blank in A.'s name, 
and sues B. C. cannot recover ; he had no right to indorse the 
bill.* 

3. C, the holder of a bill payable to order, transfers it to D. 
without indorsing it. If C. becomes bankrupt, the Court will , 
compel his trustee in bankruptcy to indorse the bill.' If 
C. dies, the Court will compel his executor or administrator to 
indorse.' 

4. C, the holder of a bill for $1,000 payable to his order, 
deposits it with D. as security for a debt for $300. C. becomes 
bankrupt. The Court will order C.'s trustee to indorse the bill 
to D. upon terms.' ' 

Explanation. — When indorsement is subsequently 
obtained, the transfer takes effect as a negotiation 
(Art. 106) from the time when the indorsement is 
given, unless it was omitted at the time of transfer, 

' Whistler v. Forster (1863), 14 C. B. N. S. at 258 ; MaUesony. Morris 
(1879), 40 Mich, at 55 ; Hadden v. Eodkey (1877), 17 Kans. 429 ; Freund 
V. Bank (1879), 76 N. T. 352 (check). 

'Harrop v. Fisher (1861), 10 C. B. N. S. at 203, Byles, J. 

'Id; CunUffe v. Whitehead (1837), 3 Bing. N. C. at 830; RoUnson 
V. Wilkinson (1878), 38 Mich. 299 : Of. Hull v. Conover (1871), 35 Ind. 
372. ' 

" Id. ; Hughes v. Nelson (1878), 29 N. J. Eq. at 549, 

^ Ex parte Mowbray (1820), 1 Jac. & W. 428. Indorsement shouldneg- 
ative personal liability: Cf. Art. 76. Indorsement by bankrupt is, it 
seems, equally good. Ex parte Rhodes (1837), 3 Mont. & Ayr. 217. 

"Cf. Watkins v. Maule (1820), 2 Jac. & W. 237 ; Hersey v. Elliot 
(1878), 67 Me. 526. 

''Ex parte Price (1844), 3 Mon. D. D. 586 ; but Cf. Ex parte Brown 
(1824), 1 Gl. & J. 407, where a different order was made. 



116 BILLS OF EXCHANGE. [aet. 105; 

?ransfer?ed*' through fraud, accident or mistake. It then takes 
diraemlit eflfect as a negotiation (probably) from the time of the 
transfer.''^ 

Illttsteations. 

1. A. draws a bill on B. payable to C or order. A. is in- 
duced to do so by C.'s fraud. C. transfers the bill to D. for 
value, but does not indorse it. D. subsequently receives notice 
of the fraud practiced on A. After this he obtains C.'s in- 
dorsement. D. cannot recover from A. — he has no better title 
than C. Aliter if he had obtained C.'s indorsement before he 
had notice of the fraud.* 

2. B. makes a note payable to C. or order. C. transfers it 
to D. for value -without indorsing it. After the note is overdue 
D. obtains C.'s indorsement. D. holds the note subject to all 
existing equities between B. and 0.' 

Donatio mortis ^rt. IQS. If the holdcr (Art. .3) of a bill make 

causa. ^ ' 

delivery of it by way of gift in contemplation of death 
and die, this is a valid donatio mortis causa. 

iLLtrSTEATIONS. 

1. C, the holder of a note payable to bearer, hands it to D. 
in contemplation of death. C. dies. The property in the note 
passes to D.* 

2. C, the holder of a bill payable to his order, gives it to D. 
in contemplation of death and dies. The title to the note 
passes to D.^ 

3. B. makes a note payable to C, and hands it to him as a 
gift in contemplation of death. B. dies. C. is not entitled to 
receive the amount out of B.'s estate.' 

'Of. Southard Y. Porter (1861), 43 N. H. at 380 ; Hughes v. Nelson 
supra, at 549 ; Daniel, § 745. 

2 Whistler v. Forster (1863), 14 C. B. jST. S. 248 ; Lancaster Bank v. 
Taylor (1869), 100 Mass. 18. 

" Clark v. Whitaker (1871), 50 N. H. 474. Not suto'eot to equities 
arising since the transfer. Beard v. Dedolph (1871), 29 Wis. 187 ; Whita- 
ker V. Kuhn (1879), 52 la. 815. 

* Miller v. Miller (1735), 3 P. Wms. 856. 

« Veal V. Veal (1859), 27 Beav. 303 j Grover v. Grover (1837), 24 Pick. 
(Mass.) 261 ; Bates v. Kempton (1856), 7 Gray (Mass.), 382. 

« Taie v. HiThert (1793), 4Bro. C. C. 286 ; Holliday v. Atkinson (1826), 



AET. 106.] TRANSFER. 117 

Note. — It is clear that the gift of a bill or note does not Donatio mm-tu 
create a debt as against the donor, of. Art. 91 ; but is this the ''''"*"■ 
principle of a donatio mortis causa ? The law as to the gift 
of bilfs and notes made by the donor requires re-consideratiou." 
The recent cases have'arisen on checks where the peculiar re- 
lations of banker and customer complicate the matter ; see 
Art. 2G3. 



Transfer by Negotiation. 

Art. 106. " Negotiation" means the transfer of a Negotiation 
bill in the form and manner prescribed by the law 
merchant with the incidents and privileges annexed 
thereby, i. e. — 

(1.) The transferee can sue all parties to the in- 
strument in his own name. 
(2.) The consideration for the transfer is prima 

facie presumed. 
(3.) The transferor can under certain conditions 
give a good title, although he has none him- 
self. 
(4.) The transferee can further negotiate the bill 
with the like privileges and incidents. 

Note. — See rights of the holder. Arts. 136 to 145. Of. In- 
dian Draft Code, Art. 7. A bill is " negotiated when the hold- 
er transfers it to another person with the effect of constituting 
that other person the holder." See the negotiation of bills and 
notes distinguished from the sale of goods by Holroyd, J.," the 
assignment of a chose in action by Willes, J.,^ the transfer of 
shares in a company by Byles, J.,* and the transfer of an as- 
signable Scotch bond by Blackburn, J.° 

5 B. & C. at 503 ; ParisJi v. Stone (1833), 14 Pick. (Mass.) 198 ; Cf. Wes- 
ton v. Sight (1840), 17 Me. 287 (estate not liable on donor's indorse- 
ment) : Smith v. Smith (1879), 30 N. J. Eq. 564. 
' Cf. Williams on Executors, 7 ed. pp. 778-780. 

2 Wookey v. Pole (1820), 4 B. & Aid. at 10 (comparing them to money). 

3 Whistler V. Forster (1868), 14 C. B. N. S. at 258. 

^Swan V. N. B. Australasian Co. (1863), 2 H. & C. at 184, 185. 
' Crouch v. Credit Fonder (1873), 8 L. B. Q. B. at 381. 



118 BILLS OF EXCHANGE. [akt. 107. 

J!^go!iabie ""^ ■^^*- ■^^'''- Subject to Art. 124 a bill is negotiable 
which in legal effect is payable either to order «r to 
bearer.-"^ 

Note. — If a bill is expressed to be "negotiable and payable 
at the X. Bank," its negotiability is not thereby limited ; it 
may be negotiated anywhere.'^ 

Explanation 1. — In order that a bill may be ne- 
gotiable it must originally contain express words 
making it negotiable (Art. 8) ; but when a bill is in 
its origin negotiable, the absence in an indorsement 
of words implying power to transfer does not limit 
the negotiable effect of such indorsement. 

Illusteations. 

1. B. makes a note in the form " pay C," omitting to add 
the words " or order." If C. indorse it to D., his indorsement 
will not operate as a negotiation. The note is not negotiable.' 

2. A bill is drawn payable to C. or order. C. indorses it to 
D. thus, " Pay the concents to D.," omitting to add the words 
"or order." The bill is negotiable, and D. can negotiate it by 
indorsing it to E.* 

Explanation 2. — A bill is payable to bearer which 
is (a) expressed to be so payable, or (b) indorsed in 
blank.* 

Illusteation. 

C. is the holder of two bills, one. drawn payable to C. or 
bearer, the other indorsed to him in blank. He transfers them 
to D. by merely handing them to him. This is a negotiation 
of the bills to D. 

' Crouch V. Credit Fancier (1873), 8 L. R. Q. B. at 382. . 
- ^McArthurY. McLeod (1859), 6 Jones L. (N. 0.) 475. But Cf. Parher 
V. Middleton (1858), 29 Pa. St. 629. 

'PlimleyY. Westley (1835), 2 Bing. N. C. 249 ; Whyte v. Heylman 
(1859), 84 Pa. St. 142. But cf. Art. 248, Excep. 3. As to C.'s liabiHty, 
Art. 217, n. 

* Edie V. East India Co. (1761), 2 Burr. 1216 ; Leavitt v. Putnam 
(185m, 3 N. Y. 494 ; Cf. Goodwin v. Rohaits (1875), 10 L. E. Ex. at 857, 

'"Cf. Arts. 8 and 116. 



AKT. 108-ll.J TRANSFER. 119 

NoTB. — No particular form of words is necessary to render what bms are 
a bill negotiable, if such was the intention of the parties, "^s^'^"''!'^' 
Hence, though it is not made to " order " or " bearer " or " as- 
signs," but merely contains the clause, "This bill to be nego- 
tiable," it seems it would be within the rule.' 



Modes of Negotianon. 
Art. 108. There are two modes of negntiation : Modes of ne- 

o gotiation. 

namely — (a) negotiation by delivery, and (5) nego- 
tiation by indorsement. The form of the instrument 
determines which mode is applicable.^ 

A rt. 109. A bill which in legal effect is payable Negotiation of 

° ^ •> bil6 payable 

to bearer is negotiated by delivery alone.^ **> ^«"^'- 

NoTB. — As to what constitutes a delivery. Of. Arts. 53-55. 

Explanation. — A bill made or become payable to 
bearer may be subsequently indorsed. Such indorse- 
ment merely adds the indorser's guarantee, and may 
at any time be struck out without affecting the nego- 
tiability of the instrument.* 

Art. 110. A bill, which in legal effect is payable Negotiation of 

. .11.1* K bill payable 

to order, is negotiated by indorsement." *» o^^^r. 

Art. 111. "Indorsement" means a writing on a indorsement 

° defined. 

bill signed by the holder, ordering the amount to be 
paid to a person therein designated, or to his order or 
to bearer. 

Explanation. — An indorsement must be completed 

^ Parker y. Middleton (18r:8), 29 Pa. St. at 530. But see Carruth y. 
Walker (1858), 8 Wis. 251 ; Hosford y. Stone (1877), 6 Neb. 378. 

2Cf. Gibson y. Minet (1791), 1 H. Bl. at 606, H. L.; Richards y. Daily 
(1872), 34 la. at 429. 

^Id.; Art. 107. 

"Fairclough v. Pavia (1850), 9 Exch. 690, at 695; Of. Keene y. Beard 
(1860), 8 C. B. N. S. at 382 ; Brush y. Reeves (1803), 3 Johns (N. Y.), 
439. 

' Of. Gibson y. Minet, supra ; Crouch v. Credit Fonder (1873), 8 L. R. 
Q. B. at 382, and Art. 107. 



120 BILLS OF EXCHANGE. [aet. 112. 

defined™™' ^J delivery ; and unless the contrary be expressed, 
the term " indorsement " means an indorsement com- 
pleted by delivery.-' 

The holder who indorses a bill is called an " In- 
dorser," Any person who makes title to a bill through 
an indorsement is called an " Indorsee." ^ 

Note. — This definition includes only indorsements proper, 
and not what may be called quasi-indorsements. If a person 
■who is not the holder of a bill backs it with his signature, the 
liability' incurred is not strictly that of an indorser, though 
such act is commonly termed an indorsement ; but it in no way 
affects the transfer of the bill. His liability is considered, post. 
Art. 217, n. In France this quasi-indorsement is termed "Aval" 
as opposed to " Endossement," an indorsement proper.' The 
term " indorsement " used without qualifioation, includes in- 
differently an indorsement in blank and a special indorsement.* 

Indorsement Art. 112. Everv indorsement consists prima facie 

both a transfer . •' ^ ni 

to'' contract"" ^ ^^^ distiuct contracts — (a) the present transfer and 
negotiation of the bill ; {b) the assumption of a future 
contingent liability on the part of the indorser.^ 

Explanation. — The liability of the indorser may be 
limited, negatived, or enlarged without affecting the 
negotiation of the bill or note. 

Illustbation. 
C. indorses a bill to D. by way of gift. The property in the 
bill passes to D., but 0. i^ not liable as indorser. Art. 91. 

Note. — For further illustrations see Arts. 64, 66, 68, 79, and 
Cf. Art. 61. See, also, Arts. 130, 131,. 1:^3. It is important to 
distinguish the two factors in an indorsement, i. e., the transfer 
and the indorser's coiitract, for they are often governed by dif- 
ferent considerations. The first resembles a contract of sale, 
the second a contract of guarantee. The first is an executed, 

> Lloyd V. Howard (1850), 15 Q. B. 995 ; Cf. Arte. 53-55. 

'Cf. Barher v. Richards (1851), 6 Exch. at 65. 

^ French Code, Arts. 141-142 ; Nougmer, §§ 821-886. 

*Harmer v. Steele (1849), 4 Exch. at 15. 

»Cf. Benton v. Peters (1870), 5 L. R. Q. B. 475 ; Sigourney v. Clarice 
(1846), 17 Conn. 519 ; Castriqiie v. BulHgieg (1855), 10 Moore, P. C. at 
108 ; Sinker v. Fletcher (1878J, 61 Ind. 276. 



ET. 113-14:.] TRANSFER. 121 

the second an executory contract. By the first & jits in rem Indorsement,' 
is transferred, by the second a, jus in personam is created. *'"' 

Art. 113. The mere signature (Art. 49) of the Form of 

° ^ ' indorsement. 

holder constitutes an indorsement, but any form of 
words may be added from which the intention to in- 
dorse can be gathered.-' 

Illustrations. 

1. C, the holder of a bill signs it, and writes thereon, " I 
hereby assign this draft and all benefit of the money secured 
thereby to D." This is an indorsement by C.'' 

2. C, the holder of a note signs it, and writes thereon, " I 
hereby assign all my right and title to the within note to D." 
This is an indorsement, and C. is liable as indorser.' 

3. 0., the holder of a note signs it, and writes thereon, " I 
bequeath — Pay the within to D., or his order, at my death," 
and gives it to D. This is not an indorsement, but an attempted 
testamentary gift.* 

4. C, the holder of a note, signs it, and writes thereon, " I 
hereby guarantee the payment of this note," and delivers it to 
D. This is not an indorsement, but a guaranty.^ 

Note. — French Code, Art. 137, requires an indorsement to 
be dated, to state the consideration, and the name of the in- 
dorsee, and to be to order. By Art. 138, if any of these re- 
quisites be wanting, it can only avail as a "procuration." 

Art. 114. The indorsement must be written on Must te on 
the bill itself." ^"^'''^ 

^PinkneyY. Hall (1690), 1 Ld. Eaym. 175; Partridge v. Davis 
(1848), 20 Vt. 499 ; Merchants Bank v. Spicer (1831), 6 Wend. (N. T ) 
443 ; Cutting v. Conklin (1862), 28 lU. 506. 

2 Richards v. Franklin (1840), 9 C. & P. at 225 ; Of. Adams v. Blethen 
(1877), 66 Me. 19. 

'Sears v. Lantz (1878), 47 la. 658. But see Aniia v. Yeomans (1878), 
39 Mich. 171, holding such indorsee subject to equities. 

'Mitchell V. Smith (1864), 4 DeG. J. & S. 422. 

= Tuttle v. Bartholomew (1847), 12 Met. (Mass.) 452 ; Trust Co. v. 
Bank (1879), 101 U. S. 68. Contra, Partridge v. Davis, supra ; Childs 
v. Davidson (1865), 38 111. 437 ; RoUnspn v. Lair (1870). 31 la. 9. Cf. 
Kaiitzmanv. PTcmcfc (187SJ, 26 0. St. 330, (in effect a Facultative In- 
dorsement, Art. 121.) 

' Cf. Gibson v. Minet (1791), 1 H. Bl. at 606 ; French v. Turner (I860). 
15 Ind. 69. But see Bange v. Flint (1870), 25 "Wis. 544. 



122 



BILLS. OF EXCHANGE. 



[aet. llo. 



Must be on 
the blU. 



Partial In- 
dorsement. 



Illusteations. 

1, An express promise in writing to indorse a bill is not an 
indorsement.' 

2. The assignment of a note by a separate writing is not an 
indorsement.^ 

Explanation 1. — An indorsement on the face of a 
bill is valid.^ 

Explanation 2. — When there is no room on a bill 
for further indorsements, a slip of paper called an 
" Allonge " may be attached thereto. It becomes part 
of the bill, and indorsements may be written thereon.* 

Note. — Some of the foreign codes contain minute provisions 
to prevent frauds, e.g., that the first indorsement on the allonge 
must begin on the bill and end on the allonge ; otherwise an 
allonge might be taken from one bill and stuck on to another ; 
Cf. JSouguier, § 668. 

Exception. — Indorsement on a " copy " in the case 
of a foreign Bill of Exchange. 

Note. — As to " copies," see Nouguier, §§ 208-211, and Ger- 
man Exchange Law, Arts. 70-72. A " copy " of a bill must be 
distinguished from the parts of a set ; Cf. Art. 25, ante. 

Art. 115. A Partial indorsement, so as to split the 
right of action on a bill is invalid as a negotiation.® 

Illusteatiohs. 
1. C, the holder of a bill for $100, indorses it. "Pay $50 

> Cf. Harrop v. Fisher (1861), 10 C. B. N. S. at 204 ; Sashell v. Mitch- 
ell (1866), 53 Me. 468. But Cf. Piwnes v. Eli/ (1846), 4 MeL. (C. Ct.) 173. 

^Re Barrington (1804), 2 Scho. & Lef. 112 ; Willi's v. Cresey (1840), 
17 Me. 9 ; Cf. Ex parte Harrison (1789), 2 Brown C. C. 614. Contra, 
Bange v. Flird (1870), 25 Wis. 544. 

» YounoY. Glover (1857), 3 Jur. N. S. Q. B. 637 ; Ex parU Yates 
(1858), 2 Dea. & J. 191 ; Herring y. Woodhull (1862), 29 111. 92. 

* Cf. Monmohunee v. Secretary (1874), 13 Bengal L. R. 359 ; Folger 
V. Chase (1836), 18 Pick. (Mass.), 63 ;German Exchange Law, Art. 11. 

= Cf. Heilbutt V. Nevill (1869), 4 L. R^ C. P. at 358 ; Conover v. Earl 
(1868), 26 la. 169; Groves v. Ruby (1865), 24 Ind, 418; see Nouguier 
9 665. 



:Tr 



ART. 116-lY.] TRANSFER. 123 

to D. or order, and $50 to E. or order." This is invalid. Partial in- 
Neither D. nor E. can sue or further indorse.' 

2. C, the holder of a bill for $100 indorses it. " Pay D, or 
order $30. This is invalid, unless 0. also acknowledge the re- 
ceipt of $70.2 

Art, 116. An Indorsement in Blank or General inaoraement 

• 1 • 1 n 1 • r. 1 ™ blank. 

indorsement consists merely oi the signature oi the 
indorser without the expression of any further inten- 
tion.^ 

Illusteation. 
Bill payable to the order of John Smith. He signs on the 
back '' John Smith," This act is is interpreted by the law 
merchant as an indorsement in blank by John Smith, and op- 
erates as if he had written. 1. I hereby assign this bill to 
bearer. 3. I hereby undertake that if this bill be dishonored, 
I, on receiving due notice thereof, will indemnify the bearer. 

Note. — Under French Code, Arts. 137-138, an indorsement 
in blank merely operates as a " procuration," and not as a ne- 
gotiation of the bill.* The indorsee is considered as the agent 
or " mandataire " of the indorser, and their relations are regu- 
lated accordingly. If, however, the indorsee has given value, 
he may convert the blank into a special indorsement. — N^ou- 
guier, §§ 747-760. 

Explanation. — A bill indorsed in blank is payable 
to bearer and may be negotiated by delivery alone.^ 

Art. 117. A Special or Full indorsement desig- special in- 

1 1 1 111 -II • doraemeut. 

nates the person to whom or to whose order the bill is 
thereby made payable. 

' Of. HeUhuU V. Nevill (1869), 4 L. R. C. P. at 358. But Cf. Flint 
V. Flint (1863), 6 Allen (Mass.), 84. 

^Hawkins v. Cardy (1699), 1 Ld. Raym. 360; Frank v. Kaigler 
(1871}, 86 Tex. 305. 

' Cf. German Exchange Law, Art. 12, and indorsement in blank distin- 
guished from special indorsement ; per Wilde, C. J., Harmer v. Steele 
(1849), 4 Exoh. at 15 ; per Parke, B., Robarts v. Tucker (1851), 16 Q. B. 
at 579 ; and per Erie, C. J., Law v. Pamell (1859), 7 C. B. N. S. at 285. 

"Cf. Bradlaugh v. De Rin (1870), 5 L. R. C. P. 473, Ex. Ch.; Nou- 
guier, § 766. 

^Peacock v. Rhodes (1781), 2 Dougl. at 636, per Lord Mansfield ; Swan 
V. N. B. Australasian Co. (1863), 2 H. & C. at 184 ; Curtis v. Sprague 
(1876), 51 Cal. 239 ; Morris v. Preston (1879), 93 111. 215. 



124 BILLS OF EXCHANGE. [aet. 118-19, 

Special in- IlluSTEATIONS. 

dorsemeut. 

1. " Pay D. or order." 

a. " Pay to D. & Co.," which in legal effect is " pay D. & Co.. 
or order."' 

3. " Pay to the order of the D. company," which in legal ef- 
fect is " pay the D. company or order."^ 

Explanation. — A bill specially indorsed is payable 
to tbe indorsee therein designated, and can only be ne- 
* gotiated by his indorsement.^ 

Conversion of Art. 118. The holdor of a bill indorsed in blank 
spSaHn- may convert such blank indorsement into a special 



doraement. 



indorsement by writing over the indorser's signature 
a direction, ordering the amount of the bill to be paid 
to himself, or some other person.* 

Explanation. — The holder who converts a blank 
into a special indorsement does not thereby incur the 
liabilities of an indorser,^ 

Illtjsteation'. 

D. is the holder of a bill indorsed in blank by C. D. writes 
over C.'s signature " Pay to E. or order," and hands the bill to 
E. This operates as a special indorsement from C. to E. 

Blank indorse- Art, 119. The negotiability of a bill which is orig- 
by special, inally payable to bearer, or which has been indorsed 
in blank, is not restrained by a subsequent special in- 
dorse ment. It is still payable to bearer.® 

"Art. 107. 

^Soares v. Glyn (1845), 8 Q. B. at 34, Ex. Ch.; Art. 8, Expl. 2. 

^Harrop v. FisUr (1861), SO L. J. C. P. 283 ; Burnap v. Cook (1863), 
32IU. 168. 

* Clerk V. Pigot (1699), 12 Mod. 193 ; Cole v. CusUng (1829), 8 Pick. 
(Mass.) 48 ; Hance T. Miller (1859), 21 111. 636 ; Erunn v. lA/nn (1866), 
16 0. St. at 545 ; German Exchange Law, Art. 13 ; Nouguier §§ 747-748. 
But holder ia not obliged to fill the blank before recovery, Poorman v. 
Mills (1868), 35 Cal. 118 ; Cf. Palmer v. Bank (1875), 78 Dl. at 381 ; 
Greenough v. Smead (1854), 3 0. St. 415. 

' Vincent v. Horlock (1808), 1 Catnp. 441, and Art. 72. 

« Walker v. Macdonald (1848), 2 Exch. 527; Eider v. Taintor (1862), 



AET. 120.] TRANSFER. 125 

Explanation. — I'he special indorser is only liable on ^'^°j^j.^jl^°™|- 
liis indorsement to such parties as make title through it.-^ ^^ specmi. 

Illusteation. 

C, the payee of a bill, indorses it in blank and transfers it 
to D. D. specially indorses it to E., or order. E., without in- 
dorsing it, transfers it to F. Then F. is entitled as bearer to 
receive payment and to sue the drawer, acceptor, and C, but he 
cannot sue D. or E.^ 

Note. — StriJdng out Indorsements. The holder may at any 
time (e.g., at the trial after the plaintiff has finished his case)* 
strike out any indorsement which is not necessary to his title. 
The indorser whose indorsement is intentionally struck out, and 
all indorsers subsequent to him are discharged from their lia- 
bilities ; O/liter if the indorsement be struck out by mistake.* 
The holder may, in some cases, make title through a person 
whose indorsement is struck out.^ Indorsements for collection 
may be struck out by the owner of the bill,' and if the indorser 
of a bill takes it up or pays it when dishonored, he may strike 
out his own and all subsequent indorsements, whether blank 
or special.' Of. Art. 339. 

Art. 120. A Qualified indorsement in express terms QnaiiAed 

. ■. f. ,.-..,. . indorsement 

limits or negatives the ordinary liability of the in- 
dorser. It relates only to the indorser's liability, and 
does not otherwise aflfect the negotiation of a bill so 
indorsed.^ 

4 Allen (Mass.), 356 ; Johnson t. Mitchell (1878), 50 Tex. 212. But see 
Dudman v. Sari (1878), 49 la. 37, where point seems to have been over- 
looked. 

lid., aai Story, §207. 

"Smith V. Clarke (1794), Peake, 225. 

"Maijerv.Jadis (1833), 1 M. & Rob. 247; Ct. Porter v. Cushman 
(1858), 19 lU. at 574 ; Bank v. Senior (1876), 11 R. I. 376. 

* Wilkinson v. Johnston (1824), 3 B. & C. 428 ; BreU v. Marston 
(1858), 45 Me. 401 ; Art,. 240. Or if not struck out at all, though prior 
blank indorsement filled up and action brought thereon, Cole v. Citshinff 
(1829), 8 Pick. (Mass.) 48. 

' Fairclough v. Pavia (1854), 9 Exch. at 695 ; but Of. Bartlett v. Benson 
(1845), 14 M. &. W. 733. 

'Dugan v. U. S. (1818), 3 Wheat. (U. S.) 173 ; Bank of Utica v. Smith 
. (1820), 18 Johns. (N. T.) 229 ; Readings. Beardsley (1879), 41 Mich. 123. 

' Callow V. Lawrence (1814), 3 M. & S. 95 ; Dolfxis v. Frosch (1845), 
1 Den. (N. Y.) 367 ; Bond v. Storrs (1840), 13 Conn. 412. 

1 Cf. Castrique v. Buttigieg (1855), 10 Moore P. C. 110-112, and 117 ; 



126 



BILLS OF EXCHANGE. 



[aet. 121. 



Qualified 
Indoraement 



1. 



Paoultative 
IndorBement. 



IlLTTSTEATIOIS'S. 

C, The holder of a bill, indorses it to D. thus : "Pay D. 



or order without recourse to me," or " Pay D. or order sans re- 
cours," ' or " Pay D. or order at his own risk." ^ C. thereby 
jDasses his interest to D., but incurs no liabil.'tf as an indorser. 
2. E., the holder of a bill indorsed on the ba ;k in three suc- 
cessive lines, as follows : " Green & Nichcls, .... without re- 
course .... Asa Perley," sues G. & N. as indoriers. If defend- 
ants show that " without recourse " was written by them at the 
time of transfer, E. cannot recover, though ignorant of the fact 
when he took the bill." ° 

Note. — It it held in America that an indorser " without r^'- 
course " is responsible to the same extent that a transferor by 
delivery is responsible, e.g., where the bill is a forgery.* See 
Art. 226. 

Art. 121, A facultative indorsement in express 
terms waives the duties or enlarges the rights of the 
holder. It relates only to the indorser's liability, and 
does not otherwise affect the negotiation of a bill so 
indorsed. 

Illusteation. 

C, the holder of a bill indorses it to D., adding the words 
" Notice of Dishonor waived." No subsequent party is obliged 
to give notice of dishonor to C^ 

Note. — Notice of dishonor may be waived verbally ; a forti- 
ori, then it may be waived in express terms. If notice of 
dishonor or other duty of the holder is expressly waived in the 
body of the bill, it then forms a part of the contract, and is 

Stevenson v. O'Neal (1874), 71 111. 314 ; German Exchange Law, Art. 14 ; 
Nouguier §§ 268-270. Qualification must be clear, Fassin v. Hubbard 
(1874), 55 N. Y. 465. 

1 Ooupy v. Harden (1816), 7 Taunt. 163. 

'BiceY. Stearns (1807), 3 Mass. 224. 

"Fitchburff Bank v. Greenwood (1861), 2 Allen (Mass.), 434. But Of. 
Lawrence v. Bobj^ns (1860), 30 Mo. 196. 

* Dumont v. Williamson (1867), 18 0. St. 515 ; Hannum v. Richardson 
(1875), 48 Vt. 508 ; Watson v. Cfhesire (1865), 18 la. 202. 

'Cf. Phipsonr. Kelner (1818), 4 Camp. 285 ; Emery v. Hobson (1873), 
62 Me. 578 ; Arts. 168, d. 4, 200 cl. 7. 



AET. 122-23.] TBANSFEB. 127 

binding on every indorser as well as the drawer,' and in France raoiiitative 
a similar construction has been put on the phrase " Retour sans 
frais" or " Retour sans protSt." ' 

Art. 122. The indorser of a bill of exchange may indorsement 

° •'in need. 

insert in his indorsement a reference in case of need. 
(Cf. Art. 7.)' 
Art. 123. A " Conditional indorsement " tranfers conditional 

indorsement. 

the bill to the indorsee, subject to the fulfilment of a 
condition therein specified. On the failure of the 
condition the title to the bill reverts to the indorser.^ 

iLLtrSTRATION. 

C, the holder of a bill, indorses it " Pay D. or order upon my 
name appearing in the Gazette, as ensign in any regiment, be- 
tween the 1st and 64th, if within two months from this date." 
The bill is subsequently accepted. D. indorses it to E., who 
indorses it to F. At maturity F. presents the bill to the acceptor 
who pays it, although the condition has not been fulfilled. The 
payment is invalid, and C. can sue the acceptor on the bill and 
recover. ^ 

Note. — The validity of a conditional indorsement is perhaps 
doubtful. Robertson v. Kensington (1811),^ seems to be the 
only decision on the point either in England or America. The 
judgment is not given in the report, so the ratio decidendi is 
not clear. Byles, Chitty, and Story merely say that a condi- 
tional indorsement is effectual, if the bill be subsequently 
accepted. In Soares v. Glyn (184'),' the Exchequer Chamber 
seem to doubt whether a conditional indorsement could be 
allowed by the law merchant. No foreign code recognizes a 
conditional indorsement. Pothier (No. 38) says that the indor- 
ser in his indorsement must conform to the same conditions as 
the drawer in his draft. It is continually laid down in the 
cases that the indorser is a new drawer, though not the drawer 

' Lowry v. Steele (1866), 27 Ind. 168 ; Eooher v. Moores (1878), 61 Ind. 
286 ; Bryant v. Lord (1872), 19 Minn. 396. Aliter, if waived only in the 
indorsement, Central Bank v. Davis (1837), 19 Pick. (Mass.) 873. 

* Nouffuier § 259. German Exchange Law, Art. 42, is ambiguous. 

"Cf. Leonard v. Tri7/!0« (1834), 2 Cr. & lU. 589 ; and Art. 184. 

^ Story, § 217 ; Thomson, p. 185. 

'Eohertson v. Kensington (1811), 4 Taunt. 80. 

'8 Q. B. at 80 ; Cf. too, Mitchell v. Smith (1864), 4 De G. J. & S. 422. 
But see Tappan v. Ely (1886), 15 Wend, (N. Y.)362. 



128 



BILLS OF EXCHANGE. 



[aet. 124. 



Conditional 
Indorsement. 



Eeatrlctive In- 
dorsement. 



of a new bill. Apply this as a test. The drawer who is in 
direct relation with the drawee, may not draw a bill condition- 
ally (Art. 10.) Why should the indorser, who is a stranger to the 
drawee, be allowed to impose a condition which the drawer 
may not? Again, the payee of a bill must be certain (Art. 9) ; 
does not this apply to the indorsee? But under a conditional 
indorsement the title of the indorsee is defeasible. It is uncer- 
tain whether the indorser or the indorsee is the person entitled to 
receive payment. It would be convenient to give effect to a 
conditional indorsement, as if it were merely restrictive. In 
that case the indorsee would be entitled to collect the bill irre- 
spective of the fulfilment of the condition. If the condition 
were fulfiled he would hold the proceeds on his own account, 
if it were not he would hold them in trust for the indorser. 
Though the conditionaltransfer of abill gives rise to difficulty, 
there seems to be no reason why the indorser's liability should 
not be conditional (Cf. Art. 113). Indian Draft Code, Art 
34, adopts this view, and provides that " an indorser may be so 
made as only to charge the indorsement upon the occurrence 
of a specifiedevent which possibly may never happen." As to 
the conditional delivery of a bill absolute in form, see Art. 55. 

Art. 124. A " Restrictive indorsement " constitutes 
the indorsee the holder of the bill, but expresses that 
he is not the beneficial owner of it. 



Illustrations. 



1. 
2. 
3. 

4. 
5. 



" Pay D. or order for the use of X." * 
" Pray pay the money to my use." ^ 
" Pay the contents to my servant for my use." ' 
" The within must be credited to D., value in account." 
" Pay the contents to my use," or " Pay the contents to 
the use of X.," or « Carry this bill to the credit of X." = 

6. " Pay D., or order for our use, value received in account."' 

7. " Pay D., or order for the account of X." ' 

^ Evans v. Cramlington (1687), 1 Show. 4; 2 Show. 509 Ex. Ck; 
Hooh V. Pratt (1879), 78 N. Y. 371. 

2Cf. Snee v. Prescott (1743), 1 Atk. a*-, 249. 

^Edie T. East India Co. (1761), 2 Burr, at 1227, Wilmot, J. 

-AncTiir v. Bank (1781), 2 Dougl. 637. 

^ Cf. Rice V. Stearns (1807), 3 Mass. at 226 ; Lee v. Bank (1860), 1 
Bond (C. Ct.), 387 at 390. 

« Wilson V. Holmes (1809), -5 Mass. 543. 

' Treuttel v. Barandon (1817), 8 Taunt. 100 ; Blaine v. Bourne (1875), 
11 R. I. 119. 



AET. 124.] TRANSFER. 129 

8. " Pay D. or order for my use." ' Restrictive lu- 

■' ■' ... dorsement. 

9. " Pay to the order of D. & Co., under provision for my 

note in favor of X." ' 

10. " Pay D. & Co., or order for collection." ' 

Note. — A " restrictive indorsement " may perhaps be de- 
fined as " an indorsement which expresses that it is a mere au- 
thority to deal with the bill as directed, and not a transfer of 
the ownership thereof." 

Explanation 1. — A statement in an indorsement 
til at the value for it has been furnished by some person 
other than the indorsee does not make it restrictive.* 

Illttsteation'. 

Bill is indorsed " Pay D., or order, value in account with X." 
This is not restrictive. It is in effect a simple indorsement to 
D. or order.' 

Explanation 2. — The mere omission to add words 
of negotiability to a special indorsement does not make 
it restrictive. Art. 107. 

NoTE.-7-An indorsement in the form " Pay D. only " is prob- 
ably restrictive, as being in terms a mere authority to D. to col- 
lect. If it appeared that D. was a holder for value, it is doubt- 
ful how far the restriction would be operative.^ Under Ger- 
man Exchange Law, Art. 15, if C. indorse a bill "pay D. only," 
the result is this : D. can still indorse the bill away, but C. is 
not liable on his indorsement. It is in effect an indorsement 
" without recourse," and not a restrictive indorsement. 

Explanation 3. — A restrictive indorsement gives the 

^Sigourney v. Lloyd (1828), 8 B. & C. 622 ; affirmed, 5 Bing. 525, Ex. 
Ch. 

2 Wedlahe v. Hurley (1830), Lloyd & Welsby, 330. 

''Sweeney v. Easter (1863), 1 Wall. (17. S.) 166 ; Mechanics' Bank v. 
V. P. Co. (1877), 4 Mo. Ap. 200 ; Claflin v. Wilson (1879), 51 la. 15 ; 
Gferman Exchange Law, Art. 17. 

* Potts V. Reed (1806), 6 Esp. 57 ; Murrow v. Sttiart (1853), 8 Moore 
P. C. 267 ; Cf. Art. 10, EjtoI. 2. 

= Buckley v. Jackson (1868), 3 L. E. Ex. 135. 

« Cf. Edie V. East India Co. (1761), 2 Burr. 1225-1227, per Dennison, J., 
and WUmot, J.; Bice v. Stearns (1807), 3 Mass. at 225 ; Power y. Fin- 
nic (1797), 4 Call (Va.), 411. 
9 



130 BILLS OF EXCHANGE. [art. 124. 

hidoriement i"<3orsee no power to transfer his rights as indorsee 
unless it expressly authorize him so to do.^ 

iLLtrSTEATlON. 

Bill indorsed " Pay to D. for my account." D. cannot, by 
indorsing' it to E,, authorize E. to collect it. Aliter if the in- 
dorsement ran " pay D, or order for my account." 

Explanation 4. — A restrictive indorsement gives 
the indorsee the right to collect the bill and to sue any 
party thereto that his indorser could have sued.^ 

Note. — It has never been attempted to make the payor re- 
;sponsible for the due application of the proceeds by the in- 
dorsee, and it is clear that he is not responsible. In the cases 
where the indorsee has sued the bill has been payable to him 
" or order." Can the omission of these words make any differ- 
ence?^ 

Explanation 5. — The indorsee, under a restrictive 
indorsement, may transfer his rights as indorsee if he 
be authorized by the terms of the indorsement so to 
do; In such case, the second and every subsequent 
indorsee takes the bill with the same rights and sub- 
ject to the same liabilities as the original restricted 
indorsee.* 

Explanation 6. — When a bill is indorsed restrict- 
ively, the relation between the indorser and the in- 
dorsee is that of principal and agent.^ 

' Llo^/d V. Sigoumey (1829), 5 Bing. at 532. Ex. Ch. ; Lee v. Bank 
(I860), 1 Biss. (C. Ct.) 825 ; Lawrence v. Fiissell (1875), 77 Pa. St. 460 ; 
Cf. Pothier, No. 89 ; German Exchange Law, Art. 17. 

2 Evans t. Cramlington (1687), 2 Show. 509, Ex. Ch. ; Wilson t. 
Holmes (1809), 5 Mass. 548 ; McWilliams v. Bridges (1878), 7 Neb. 419; 
Cf . German Exchange Law, Art. 17. Contra, by Statutes requiring ac- 
tions to be prosecuted in name of real partv in interest, Eoch Co. Banky. 
Hollister (1875), 21 Minn 885. 

" Cf. Dehers v. Harriott (1691), 1 Show. 163, when the indorser sued, 

* Treuttel v. Barandon (1817), 8 Taunt. 100 ; Lloyd 7. Sigoumey 
(1829), 5 Bing. at 531 ; Sweeney v. Easter (1863), 1 Wall. (U. S.), 166'; 
Hookv. Pratt (1879), 78 N. Y. at 875 ; German Exchange Law, Art, 17. = 

<• Cf. Dehers v. Harriott (1691), 1 Show. 163 ; Potts v. Reed (1806), 6 
Esp. at 59 ; Rice v. Stearns (1807), 3 Mass. at 225 ; Blaine v. Bourne 



AET. 125.] TSANSFER. 131 

Illustrations. Restrictive 

indorsement. 

1. C. indorses a bill " Pay D. or order for my use." D. in- 
dorses it to, and discounts it with, E. on his own account. B. 
collects it at maturity. C. can recover the amount of the bill 
from E.' 

3. C. indorses a bill " Pay D. or order for the use of X." D. 
collects the bill at maturity. If he misappropriate the money? 
X. cannot sue him.^ The action must be brought by 0.' 

3. 0. indorses a bill "Pay D. or order for account of X." D. 
is X.'s agent. D. indorses the bill to E. who collects it. X. 
can sue E. for the amount so received.* 

4. A. draws a bill on B., and indorses it to C. 0. indorses 
it, "Pay D. or order for my use.'' The bill is dishonored, and 
D. sues A. the drawer. If A. have any defense against C, he 
may set it up against D.' 

Note. — The restricted indorsee is frequently termed a trus- 
tee, but he is only a trustee in the sense that an agent is a 
trustee.' German Exchange Law, Art. 17, deals with restrict- 
ive indorsements, and accords with English law, as stated above. 
In France the mere omission of the statement of the value re- 
ceived makes an indorsement restrictive.' The indorsee is then 
deemed to be the agent or "mandataire " of the indorser. J'o- 
thier, Nos. 33 and 88-90, has worked out the results with great 
clearness. 



Who may negotiate a hill. 

Art, 125. A bill must be negotiated by the de facto ^«f<^ 
holder. The transfer of a bill by any other person "®^'*'°''* 
does not operate as a negotiation of the instrunaent.* 

(1875), 11 E. I. 119 ; by analogy, Maguire v. Dodd (1859), 9 Ir. Ch. 452 : 
PoiMer, Nob. 23, 89-90. ' 

» Lloyd V. Sigou/rney (1829), 5 Bing. 525. 

2 WedlaTce v. Hurley (1880). Lloyd & Welsby, 330. 

» Id. at 332, per Vaughan, B. 

< Treuttel v. Barandon (1817), 8 Taunt. 100. If D. had not been X. a 
agent, C. must have brought the action. 

' Wilson V. Holmes (1-809), 5 Mass. 543. 

«Cf. Cook V. Uster (1863J, 13 C. B. N. S. at 597, WiUes, J. 

'Cf. French Code, Art. 138 ; Nouguier § 744. 

'Bolles V. Stearns (1853), 11 Gush. (Mass.) 320. 



must 



132 BILLS OF EXCHANGE. [aet. 126-27. 

holder must' Explanation. — " De facto holder " means the per- 
negotiate. . g^jj ^ possession of a genuine bill, to whom it is in 

terms payable, whether he be lawfully in possession 

thereof or not. 

Note. — The term " holder " is used in the cases in different 
senses. It is generally used to denote the " lawful holder," 
and as such it is defined in Art. 3. It then includes — (1) the per- 
son to whom a bill is in terms payable, and whose title is good 
against all the world ; (3) the person to whom a bill is in terms 
payable, and who as against third parties, is entitled to enforce 
payment — though as between himself and his transferor, he is a 
mere agent or bailee with a defeasible title {e.g., an indorsee 
for collection). But " holder " is also used to denote an unlaw- • 
ful holder, that is, the person to whom a bill is in terms paya- 
ble, whose possession is unlawful, but who nevertheless can 
give — (a) a valid discharge to a person who pays it in good 
faith (see Art. 236), and (6) a good title to a person who takes 
it before maturity in good faith and for value (see Art. 137). 
An unlawful holder must be distinguished from the mere 
wrongful possessor : e.g., a person holding under a forged in- 
dorsement, or a person who has stolen a bill payable to order, 
who has no rights and can give none. When, then, a propo- 
sition is laid down which applies equally to lawful and unlaw- 
ful holders, the term de facto holder is used to include both. 

Bill to bearer. Art. 126. The de focto holder of a bill payable to 
bearer (Art. 107) is the person in possession of it. 

iLLUSTKATIOlfS. 

1. C, the payee of a bill, indorses it in blank and transmits 
it to D. for some special purpose {e.g., discount or collection). 
As long as D. retains possession, D. and not 0. is the de facto 
holder, and he alone can negotiate it.' 

. 3. C. is the holder of a note payable to bearer. 0. loses it 
and D. finds it. D. and not C. is the de facto holder, and he 
alone can negotiate.it. 

Who may ne- 1 Art. 127. The defocto holder of a bill pavable to 

gotiatebluto J . ,1 • • i? -i. 3 / 1 

order. Order IS the person in possession of it, and to whose ; 

order it is payable. 

^Marston v. Allen (1841), 8 M. & W. at 504. 



ART. 128.] TRANSFER. 133 

Note. — See, in illustration, Arts. 103-104. . Who may ne- 

' gof.iate bill to 

Explanation. — If the person to wliose order a bill 
is meant to be payable is wrongly designated, or if 
his name is mis-spelt, he may negotiate the bill by 
indorsing it as described.-' 

Illttstkations. 

1. A bill is indorsed to J. Smythe. The man's real name 
is T. Smith. He can validly negotiate the bill by indorsing it 
as J. Smythe.^ 

2. John Smith trades as " Brown & Co." A bill is drawn 
payable to the order of " Brown & Co." He may transfer it by 
an indorsement " John Smith," or " Brown & Co."' 

Note. — The usual and proper course is for the holder to 
sign first the name as described or spelt in the bill, and then 
to put underneath his proper signature — e.g., in the case given 
the indorsement would be signed, 

J. Smythe, 
T. Smith, 

Exception, — When the title to a bill payable to 
order is transmitted by act of law, and the person to 
whom the title is transmitted obtains possession of the 
bill, he becomes the de facto holder. 

Note. — See transmission by marriage (Art. 98), death (Art. 
99). See, also, dissolution of partnership (Art. 80). For an- 
other exception of doubtful expediency in the case of banking, 
and perhaps other corporations, see ante. Art. 71, Expl. 1, n.* 

Art. 128. Where a bill is payable to the order of several payees 



or indorsees. 



1 Williamson v. Johnson (1823), 1 B. & C. at 149, Hoboyd, J.;Schultz 
V. Astleu (1836), 2 Bing. N. C. at 553, Tindal, C. J. ; Cf. C}ienot v." 
Lefein-e (1846), 3 Gilm. flU.) 637. 
. i! Id. ; Cf. Willis T. Barrett (1816), 2 Stark. 29. 

^Bryant v. Eastman (1851), 7 Gush. (Mass.) Ill ; Blodgett v. Jack- 
son (1859), 40 N. H. 21 ; Of. Walker v. Macdonald (1848), 2 Exch. 527. 
But production of bill to the order of "John Smith" indorsed "Brown 
& Co." would not he sufficient evidence of title in the holder: Cf. Red- 
mond V. Stanslury (1872), 24 Mich. 445. 

" See, also, Watervliet Bank v. White (1845), 1 Den. (N. Y.) 608 ; First 
Nat. Bank v. Hall (1871), 44 N. T. 895, 



134 BILLS OF EXCHANGE. [ART. 129-30. 

severai^ayees two or more persons wlio are not partners, all must 
indorse.^ 

Explanation. — One may indorse on behalf of the 
rest if he have authority so to do.^ 
Ilhtsteatiosts. 

1. B. accepts a bill payable to the " order of C. and D." 
D. alone indorses it to E. This is insufficient. E. cannot sue B.' 

2. Bill payable to « the order of C. and D." C, by D.'s 
authority, indorses it to E. " for self and D." This is suf- 
ficient. 

3. Bill payable to " C. and D. or the order of either." 0. 
alone indorses it to E. This is sufficient.* 



ie-ii}sue. 



To whom a bill may be negotiated^. 
Certainty ag Art. 129. When a bill is specially indorsed, the 

to indorsee. x j ' 

indorsee must (probably) be designated with the 
same certainty that is requisite in the case of an orig- 
inal payee.^ 

Note. — Art. 133 creates the doubt. See the question there 
discussed. As to payee, see Art. 9. 

Kctransfei and Art. 130. A bill mav be negotiated to any party 
thereto — i. e., drawer, drawee, acceptor or prior in- 
dorser, and such party, subject to Art. 238, may re- 
issue and further negotiate it.^ 

Illustbations. 
1. C. is the holder of a bill accepted by B., payable three; 

' RyUner v. Feickert (1879), 92 lU. 305 ; Lane v. Stacy (1864), 8 Alien 
(Mass.) at 42 ; Arts. 77 et seq. 

'Carvick v. Vickery (1781), 2 Dougl. 652 ; and Cf. Heilhut v. Nevill 
(1869), 4 L. B. C. P. at 356, 358, per Willes, J. 

s Id. ; Smith v. Whiting (1812), 9 Mass. 334. 
, ■> Cf. Watson v. Evans (1863), 32 L. J. Ex. 137. 

»Cf. Pothier, No. 38 ; Soaree v. Olyn (1845), 8 Q. B. at 30, Ex. Ch. ; 
Murray v. East India Co. (1821), 5 B. & Ad. 204. 

" Cf. Pinney v. McGregory (1869), 102 Mass. 186 ; Palmer v. Gardiner 
(1875), 77 111. 143 ; German Exchange Law, Art. 10. 



AKT. 131.] TRANSFER. 135 

months after date. C. can indorse the bill to B., the acceptor, Ee-transfer 

IT. • 7 /. • 1 • 1 and re-issae. 

and B., at any time pefore matunt]/, may re-issue, and indorse 

it to D.' 

3. A., the drawer of a bill payable to his own order, indorses 

it to 0. C. indorses it to D. who indorses it back to A. A. 

can re-issue the bill and indorse it to E.^ 

Explanation. — When a bill is negotiated back to a 
party already liable thereon, be cannot sue tbe inter- 
mediate parties.* 

Illtisteations. 

1. C, the holder of a bill, indorses it to D. D. indorses it 
to E., who indorses it back to C. C. cannot sue D. or E., for 
they in turn could sue him as a prior indorser.* But D. and E. 
have not been discharged, for if C re-indorse to F., they are lia- 
ble to him as indorsers.* 

3. C, the holder of a bill, indorses it " without recourse " to 
D., who indorses it to E. E. indorses it back to C. 0. can sue 
D. and E., for they have no claim against him as a prior in- 
dorser.^ 

3. B., for the accommodation of C, makes a note in his 
favor. C. indorses it to D., who discounts it with B., the maker. 
B. can sue C 

Note. — The explanation given above is necessary in order to 
avoid circuity xjf action. See further Art. 334, Expl. 3. 



Time of Negotiation. 
Art. 131. A bill which is in form complete and Negotiable tm 

discharged. 

' Attenborough v. Mackenzie (1856), 25 L. J. Ex. 244 ; Witfe v. Will- 
iams (1876), 8 S. C. 290. 

''Cf. Hubbard v. Jackson (1827), 4 Bing. 390: Jones v. Broadhurst 
('1850') 9 C B 173 

2 Of.' Wiiders v. Stevens (1846), 15 M. & W. 208, at 212, per Alderson, B 

'Bishop V. Hayward (1791), 4 T. E. 470 ; Moore v. Cross (1859), 19 
N. Y. at 228 ; Palmer v. Whitney (1863), 21 Ind. 58. 

* West Boston Bank v. Thompson (1878), 124 Mass. at 515. 

«Cf. Morris v. Walker (1850), 15 Q. B. at 594: Calhoun v. Albin 
(1871), 48 Mo. at 306. 



186 BILLS OF EXCHANGE. [aet. 132-33. 

Slffl^ed''" negotiable (Art. 107), may be negotiated at any time 
until it is discharged.-^ 

Explanation. — The character and incidents of the 
negotiability of a bill depend on the time at which it 
is negotiated. 

Note. — As to the transfer of a bill incomplete in point of 
form, see Art. 33 ; as to the issue of a bill by a person other 
than the maker, Art. 54. 

Presumption as Art. 132. Unlcss the contrarv appear on the in- 
to time. . . 

strument itself, a bill \s prima fade presumed to' have 

been negotiated at its inception,^ or at least before 

maturity,^ but apart from this general rule, there is 

no presumption as to the exact time of negotiation.* 

Note. — Circumstances of strong suspicion short of direct evi- 
dence may rebut the primd facie presumption and make it a 
question for the jury whether a bill was negotiated before or 
after maturity .° 

When bin Art. 133. All bills not payable on demand are 

deemed over- . ■'- "^ 

^"^- deemed overdue after the expiration of the last day of 

grace;® Cf. Art. 20. 

It is uncertain when a bill of exchange payable on 
demand and not known to have been dishonored is to 
be deemed overdue. 

Explanation. — A bill payable in instalments is 
deemed overdue in toto, when any instalment is over- 

> Callow V. Lawrence (1814), 3 M. & S. at 97 ; French v. Jarns (1860), 
29 Conn. 348 ; Chapter vii. post. 

•'Good V. Martin (1877). 95 U. S. at 94 ; Noxon v. DeF'o?/ (18-58), 10 
Gray (Mass.) 843 ; Olarhe v. Johnson (1870), 54 111. 296 : Haywa/rd t. 
Hunger (1863), 14 la. 516. 

^Lems Y. Parker (1836), 4 A. & E. 838 ; Rangers. Gary (1840), 1 Met. 
(Mass.) at 373 ; McDowell v. Goldsmith (1854), 6 Md. 320. 

* Anderson v. Weston (1840), 6 Bing. N. C. 296. 

^Bounsall v. Harrison (1836 , 1 M. & W. 611. 

«Cf. LeftleyM. Mills (1791), 4 T. E. 170 j Chambliss v. Matthews 
(1879), 57 Miss. 806. 



AET. 134.J TRANSFER. 137 

due ;^ but a bill is not deemed overdue from tbe mere a'^emed over- 
fact that interest is overdue.^ "^"^ 

Note. — A bill of exchange payable on demand is, like a 
check, ordinarily intended for immediate presentation, and is 
probably governed by the same rules as to when it is to be 
deemed overdue.' There are very few decisions on the point. 
As to a note payable on demand, which is a continuing se- 
curity, see Art. 382. As to a check, Art. 359. Is a transfer on 
the last day of grace to be deemed a transfer of an overdue 
bill? The affirmative has been held in Mass., without regard 
to the time of the day when the transfer is made.* But the 
true test would seem to be this : Was the transfer made 
before the expiration of the time within which due presentment 
to charge an indorser (Art. 163) could be inade? , If so the bill 
was not overdue when transferred.' By German Exchange 
Law, Art. 16, a bill is not deemed to be overdue till the time 
for protesting it has elapsed. Bill dishonored by non-accept- 
ance. — If a person takes a bill before maturity, but with notice 
that acceptance has been refused, it is uncertain how far he 
takes it subject to equities which would attach to an overdue 
bill — e.g., fraud, illegality of consideration, &c. According to 
Crossley v. Ham (1811)," such a bill is on the same footing as 
an overdue bill ; but according to Goodman v. ZTarwey (1836),' 
the holder takes it free from equities of which he has not no- 
tice. This latter case has frequently been approved in so far 
as it lays down the test of bond Jides^Jout the exact point at 
issue has not been raised or discussed. ' Of. Art. 191, as to no- 
tice of dishonor. 

Art. 134. The fact that a bill is overdue is equiv- Negotiation of 

-^ overdue bill. 

alent to notice of all facts relating to it.* In other 

1 Vinton v. King (1862), 4 Allen (Mass.), 662 ; Field v. Tihbetts (1869), 
57 Me. 858. 

'Kelley v. Whitney (1878), 45 Wis. 110; Cromwell y. County of Sac 
(1877), 96 U. S. 51 ; Cf. Nat. Bank v. Kirby (1871), 108 Mass. 497. 
Cmtra, Newell' y. Gregg (1868), 51 Barb. 263. 

3 Of. Finer Y. Clary (1856), 17 B. Mon. (Ky.) 645. 

*Pinev. Smitk{185S), 11 Gray (Mass.), 38. 

' Cf. Crosby v. Cfrant (1858), 36 N. H. at 277. 

«13 East, 498 ; Andrews v. Pond (1839), 13 Pet. (U. S.) at 79 ; Cf. dic- 
ta in O'Keefe v. Dunn (1816). 5 M. & S. 282, Ex. Ch. 

' 6 Nev. & Man. 372. 

'Brown v. Davies (1789), 3 T. R. at 82, Buller, J.; Cripps v. Davis 
(1843), 12 M. & W. at 165, Parte. B. 



138 BILLS OF EXCHANGE. [aet. 134 

Negotiatton^of respscts an overdue bill which has not been discharged' 
is negotiable as if. current.^ 

Explanation 1. — ^If there be any fact relating to a 
bill notice of which would disentitle a holder who 
took the bill before maturity, the existence of such 
fact disentitles a holder who takes the bill after ma- 
turity irrespective of notice.^ Any such disentitling 
fact is called an " Equity attaching to the bill." ^ 

Illusteations. 

1. B., for aji illegal consideration, makes a note payable to 
C. or order. C. indorses it, when overdue, to D. D. cannot 
sue B.* 

3. A. draws a bill on B. payable to his own order. B.. ac- 
cepts the bill subject to a certain condition then verbally 
agreed on. A. indorses the bill, when overdue, to C. C. takes 
the bill, subject to the aforesaid condition, although he had no 
notice of it.^ 

Explanation 2. — ^If the holder who held the bill at 
its maturity had a good title, the fact that a previous ■ 
holder had a defective title is immaterial.® (Cf. Art. 
87.) 

xLLUSTKATIOM". 

B., for an illegal consideration, accepts a bill drawn on him 
by A. A. indorses it before maturity to C, who takes it for 
value and without notice. 0. indorses the bill, when overdue, 

1 Leamtt v. Putnam (1850), 3 N. T. at 497 ; Nat. Bank v. Texag (1873), 
20 Wall. (U. S.) 72 ; McSherru v. Broohs (1876), 46 Md. at 118. 

2 O'Keefe v. Dunn (1815), 6 Taunt, at 310 and 315 : Lloyd v. Howard 
(1850), 15 Q. B. at 998. 

» Cf. Denters v. Townsend (1864), 33 L. J. Q. B. at 304, Blackburn, J. 

* Amory v. Merewether (1824), 2 B. & C. 573 : Kittle v. De Lamater 
(1874), 3 Neb. 325. 

^Holmes v. Kidd (1858), 28 L. J. Ex. 112, Ex. Ch. ; Pecker v. Sawyer 
(1852), 24 Vt. 45 ; Egffan v. Brings (1880), 23 Kans. 710. 

' Fairdough v. Pavia (1854), 9 Exch. 690 ; Dunham v. Clo^g (1868), 
80 Md. 284 J Hereth v. Bank (1870), 34 Ind. 380. 



AKT. 134.] TRANSFEB. 139 

to D. D. acquires a erood title, for C. had a good title.' But Negotiation of 

^. 1-1A0 overdue bill. 

C could not give a good title to A. 

Explanation 3. — The existence of a set-off or mat- 
ter of counterclaim against the holder of a bill is 
not an equity which attaches to the instrument,^ 
Illustration. 

C, the holder of a bill accepted by B., is indebted to B. for 
arrears of rent. If C sues B., B. can set off the arrears of 
rent ; but if 0. indorses the bill when overdue to D. for value, 
B. cannot set off C.'s debt against D.* 

Note. — If in the instance given C. indorsed the bill to D. 
without value, D. would sue as a mere trustee for C. ; therefore 
any defense available against 0. would be available against D. 
also. This applies equally to current bills. Cf. Art. 141. 

Explanation 4. — If a bill is given for accommoda- 
tion, the mere absence of consideration is not an equi- , 
ty which attaches to the instrument ; ® but if there be 
an agreement, express or implied, not to negotiate an 
accommodation bill after maturity, the agreement 
constitutes an equity which attaches thereto.® 
Illfstbations. 

1. B., to accommodate A., accepts a bill drawn on him by 
the latter, payable one month after date. A., after the bill is 
overdue, indorses it to C. for value. 0. can sue B.' 

• Chalmers v. Lanion (1808), 1 Camp. 883 ; Barlow v. ScoU (1861), 12 
la. 63. 

■'Kost V. Bender (1872), 25 Mich. 516. 

3 Quids V. Harrison (1854), 10 Bxch. 572 ; Ex parte Swan (1868), 6 L, 
R. Eq. 344 ; Richardson v. Daili/ (1872), 34 la. 427 ; Davis v. Neligh 
(1878), 7 Neb. at 82 ; Young v. Shroner (1876), 80 Pa. St. 463. Contra, 
Baxter Y. lAttle (1843), 6 Met. QA.&sa.)l; Armstrongs. Chadwick (1819), 
127 Mass. 156 ; Driggs v. Rockwell (1833), 11 Wend. (N. Y.) 504. 

* Trafford v. Hall (1862), 7 R. I. 104. 

5 Stiirtevant v. Ford (1842), 4 M. & Gr. 101 ; Ex parte Swan, supra ; 
Davis V. Miller (1857), 14 Grat. 1. Contra, Chester v. Dorr (1869), 41 
N. Y. 279 ; Kellogg v. Barton (1866), 12 Allen (Mass.), 527 ; Coghlinv. 
May (1861), 17 Cal. 515 ; Hoffman v. Foster (1862), 43 Pa. St. 137. 

^ Parr v. Jewell (1855), 16 C. B. 684, Ex. Ch.; Carruthevs v. West 
(1847), 11 Q. B. 143, decided on demurrer is not to the contrary; see ratio 
decidendi, per Wightman, J. 

•■ Stein V. Yglesias (1834), 1 C. M. & R. 565. 



140 . BILLS OF EXCHANGE. [aet. 134. 

Negotiation of 3. B., being •willing to accommodate A. with a three 
months' credit, accepts a bill drawn on him by A. payable 
three months after date, upon the terms that it is not to be left 
outstanding after that time. A. discounts the bill with C. 
when overdue, C cannot recover against B.' 

Note. — The rule laid down seems obvious. Notice that a 
bill is an accommodation bill is no defense against a holder for 
value before maturity ; why then should the fact be a defense 
afterwards ? The point, however, has only been settled in 
England after long controversy ; and in America the authori- 
ties are still in conflict, though the decided weight of authority 
is in favor of holding it an attaching equity, on the ground 
that there is always implied from the nature of the transac- 
tion, an agreement not to negotiate an accommodation bill after 
maturity. The accommodation party lends his credit for the 
specified time, and no longer. 

Explanation 5. — The rights of a person who is not 
a party to the bill may constitute an equity attaching 
thereto if they arise out of transactions relating to the 
instrument,^ 

Illusteation. 

D., the manager of the " X. Bank," abstracts moneys be- 
longing to the bank, and purchases therewith an overdue bill 
of exchange accepted by B. This overdue bill he negotiates 
to E. The " X. Bank," and not E., is entitled to the bill, and 
if B. becomes bankrupt, the " X. Bank " can prove against his 
estate." 

Note. — ^Payment and other discharges are sometimes spoken 
of as equities attaching to a bill, but this seems incorrect — 
they are rather grounds of nullity. That which purports to be 
a bill is no longer such ; it is mere waste paper. Part payment, 
however, may be regarded as an equity which attaches to a 

>Cf. Parry. Jewell (1855), 16 C. B. 684; Chester v. Dorr (1869), 41 
N. Y. 279. 

^ Ex parte Oriental Bank (1870), 5 L. R. Ch. 358 ; Cf. Lee v. Zagurij 
(1817), 8 Taunt. 114r-by analogy, Be Gomersall (1876), 1 L. R. Ch. D. 
137. But see Hibernian Bank v. Everman (1876), 52 Miss. 500. 

"Id., se'e as to the limits, Warren v. Haight (1875), 65 N. Y. 171. 



AET. 135-36.] TRANSFER. 141 

bill.' The position of a holder who takes a bill when overdue, Negotiation of 
is- this: he is a holder with notice. He may or may not be a"^^"^ "® ' 
holder for value, and his rights will be regulated accordingly. 
He is a holder with notice for this reason : he takes a bill 
which, on the face of it, ought to have got home and to have 
been paid. He is therefore bound to make two inquiries : 1. 
Has what ought to have been done really been done, i. e., has 
the bill in fact been discharged ? 2. If not, why not ? Is 
there any equity attaching thereto ? i. e., was the title of the 
person who held it at maturity defective ? If his title to the 
instrument was complete, it is immaterial that for some collat- 
eral reason, e.g., a set-off, he could not have enforced the bill 
against some one or more of the parties liable thereon ; Of. 
Arts. 88, 330. In France, it seems, no distinction is drawn be- 
tween overdue and current bills ; ITouguier, §§ 679-680. By 
German Exchange Law, Art. 16, the indorser of an overdue 
bill acquires only the rights of his indorser ; Cf. the Scotch 
Law, under 19 & 30 Vict. c. 60, § 16. 

Art. 135. The fact that a bill has been dishonored After action 

.1,1 1 . . brought. 

and an action brought thereon does not restrain its 
negotiability.* 

Illustration. 

C, the holder of a dishonored bill accepted by B., commences 
an action against him. Subsequently 0. indorses the bill to 
D., who has notice of the action. D. can sue B. and recover. 

Note.— If a bill be transferred, after action brought, to em- 
barrass the defendant, his remedy is by application to the 
Court.' The Court, too, has full power over costs. But when 
judgment is obtained, the bill ceases to be negotiable, as it be- 
comes merged in the judgment.* 



Rights acquired by Negotiation. 
Art. 136. The person to whom a bill is negotiated HoWer'a 

» Graves v. Key (1832), 3 B. & Ad. at 319 ; Lmati v. BayU (1879), 31 
La. An. 229. Hence equity -will not compel surrender of an overdue bill 
paid but not taken up: Fowler v. Palmer (1875), 62 N. T. 533. 

'Denters v. Toumsend (1864), 32 L. J. Q. B. 301 ; Cf. Woodward v. 
Pell (1868), 4 L. R. Q. B. 55 ; CuHis v. Bemis (1857), 26 Conn. 1. 

s Id. at 302, per Cockbum, J. 

* Woolen V. Maultshy (1873), 69 N. C. at 463, 



142 , BILLS OF EXCHANGJE. [art. 137-38. 

Hower'8 becomes the de facto holder (Art. 125) thereof. He 
thereby acquires the right to sue on the bill in his 
own name, and the power to further negotiate it.^ 

Note. — The power to negotiate must be distinguished from 
the right to negotiate. The right to negotiate is an incident 
of ownership. The power to negotiate is an incident of ap- 
parent ownership. Again, the right to sue must be distin- 
guished from the right to recover ; that depends on the further 
question whether the holder is a holder for value (Arts. 83 and 
84), and in some cases whether he is also a holder for value 
without notice (Arts. 85 and 86). 

hotde1°oan -^^^^ ^^'^* ^^^ ^^ facto holder of a genuine bill, 

give good title, regular on the face of it, who holds it wrongfully, or 
who by parting with it is guilty of a fraud, can nego- 
tiate it with a good and complete title to a person who 
takes it before maturity as a bona fide holder for 
value without notice.^ Cf. Arts. 92 to 97. 
Patenu^ Art. 138. An irregularity patent on a bill is equiv- 

alent to notice of any defect that may be behind it, 
and deprives the holder of the protection afforded to 
a bona fide holder for value without notice.* 

Illusteations. 

1. A., who is in possession of a blank acceptance signed by 
B., fills it up a.s a bill for $100 in the presence of C, inserting 
his own name as drawer and C.'s name as payee. A. transfers 
the bill to 0. for value. If it appears that A. had no authority, 
to fill up the bill, or that his authority had been revoked, 
cannot recover against B. * 

3. A. draws a bill on B. payable to his own order. B. ac- 
cepts. It is afterwards arranged that the bill shall be cancel- 

1 Cf. Crouch V. Credit Foncitr (1873), 8 L. R. Q. B. at 380-382. 

"llarston V. Allen (1841), 8 M. & W. at 504, see per Alderson, B., as 
to the principle. 

» Colson V. Arnof (1874), 57 N. T. 253 ; Cf. AngU v. Ins. Co. (1875), 
92 U. S. at 342 ; Freeman's Bank v. Savery (1879), 127 Masa. at 79. " 

^ Hatch V. Searles (1854), 2 Sm. & Q. l47, Staaway's case ; see, too, 
Con-way's case affirmed, 24 L. J. Ch. 22, and Awde v. Dixon (1861), 6 
Exch. 869. 



AET. 139.] TRANSFER. 143 

led. B. accordingly tears it in half. A. subsequently picks Patent ir- 
up the pieces, joins them together, and indorses the bill to C, 
■who takes it for value and without notice. If the bill is so 
torn that it appears to have been divided for safe transmission 
by post, C. can recover; but if it was so torn as to show an in- 
tention to cancel it, C. cannot recover.' 

Note. — The rule as to overdue bills (Art. 134), is probably 
a deduction from the same principle. See, too, Art. 74 as to 
signatures " per proo." and Art. 350 as to alterations. See the 
distinction between latent and patent defects observed on by 
Lord EUenborough and Bayley, S? 

Art. 139. No title can be made to a bill through Fictitious . 

° payee and in- 

the indorsement of a fictitious or non-existing person ^o'^^'^- 
unless tbe party sued is estopped from setting up the 
fact. Cf. Art. 81. 

Illustrations. 

1. A. draws a bill on B. payable to C.'s order. C. is a fic- 
titious person. B. accepts in ignorance of this fact. A. then 
indorses the bill in blank in O.'s name and discounts it with D., 
who has notice. D. cannot sue B.^ 

2. A. draws a bill on B. payable to C.'s order. C. is a fic- 
titious person. B. knowing this accepts. A. indorses the bill 
in blank in C.'s name, and it is negotiated to D., a bond Jide 
holder for value without notice. D. can sue B.* 

3. B. is indebted to 0. By arrangement between them a 
bill is drawn in the name of A., a deceased person, on B., pay- 
able to drawer's order. B. accepts, and the bill is indorsed in 
A.'s name to C. C. can sue B.^ 

' Ingham, v. Primrose (1859), 7 C. B, N. S. 82 ; Cf. SchoUy v. Rams- 
lottom (1810), 2 Camp. 485 ; Eedmayne v. Burton (1860), 2 L. T. N. S. 
324. 

2 Dunn V. O'Keefe (1816), 5 M. & S. at 286-289 ; Cf. Ex parte Dixon 
(1876), 4 L. R. Ch. D. at 136, C. A. 

^Hunter v. Jefferij (1797), Peake Ad. Ca. 146 ; Cf. Bennett v. Farrell 
(1807), 1 Camp. '129 and 180. 

* Gibson v. Ilinet (1791), 1 H. Bl. 569, H. L.; Cf. Gibson v. Hunter 
(1794), 2 H. Bl. 288, H. L.; Farnsworth v. Drake (1858), 11 lud. 101 ; 
Forbes v. Espy (1871) 21 0. St. 474. 

^Asphitel V. Bryan (1863), 32 L. J. Q. B. 91 ; per Crompton, J., an 
estoppel on evidence. Aftirmed Ex. Ch. 83 L. J. Q. B. 328, per cm-., an 
estoppel by agreement. 



144 



BILLS OF EXCHANGE. 



[aet. 141. 



Hotitious 
payee and in- 
Qorser.j 



4. A bill purporting to be drawn by A. on B., payable to 
C.'s order and indorsed by 0. in blank is held by D. X. ac- 
cepts it suprdi protest for A.'s honor. D., who is * bond fide 
holder, sues X. It turns out that A.'s signature was forged, 
and that C. is a fictitious person. X. is estopped from setting 
up these facts.' 

5. B., at the request of X., makes a note payable to C.'s 
order. 0. is a fictitious person, but B. does not know this. X. 
indorses the note in C.'s name and it is negotiated to D., a 
bond fide holder for value without notice. D. can sue. B.^ 

Note. — ^As to the effect of the drawee being a fictitious per- 
son, see Art. 2. In France the signature of a fictitious person 
on a bill constitutes a " supposition de nom," and renders the 
instrument invalid as a bill in the hands of all parties with no- 
tice.' The signature of a fictitious person must be distin- 
guished from (a) ; the signature of a real person who uses a fic- 
titious name (Cf. Art. 71, Expl. 2), and (5) the false signature 
of a real person * (Cf. Art. 81). 



De facto 
holder's right 
of action. 



Eights of Action and Proof. 

Art. 141, The de facto holder of a bill is entitled 
to maintain an action thereon unless it is shown that 
he holds the bill adversely to the true owner.^ 

Explanation 1. — It is immaterial that the holder 
never had any interest in the bill,® or that he has 
parted with his interest therein.'' 

^PhilUps V. Im Thurn (1865), 18 C. B. N. S. 694, on demurrer ; see 1 
L. E. C. P. 463, on evidence. 

^Lane v. Kreckle (1867), 22 la. 477 ; Cf. Cooper v. Meuer (1830), 10 
B. & C. 468 ; Beeman v. Duck (1843), 11 M. & W. 251 : SchuUzv. Astlea 
(1836), 2 Bing. N. C. 544. 

^Nouguier, §§ 277, 284-288 ; Cf. French Code, Art. 112 ; Italian Code, 
Art. 198. 

"See Rogers v. Ware (1873), 2 Neb. 29 ; Dana v. Underwood (1837), 
19 Pick. (Mass.) 99 ; ManioH v. Eoherts (1855), 4 E. D. Sm. (N. Y.) 83. 

^JonesY. Broadhurst{\^^, 9 C. B. 178; Agra Bank v. Leighton 
(1866), 2 L. R. Ex. at 63-65 ; Wells v. SchoonoverllS12), 9 Heisk. (Tenn.) 
805. SeeArt. 125, <?e/octo holder defined. 

«Law y.Parnell (1859), 7 C. B. N. S. 282; Wheeler v. Johnson 
(1867), 97 Mass. 39 ; Caldwell v. Lawrence (1876), 84 111. 161. 

' WilUams v. James (1850), 15 Q. B. 498 ; Poirier v. Morris (1853), 



AKT. 142.] TRANSFER. 145 

Explanation 2. — When the holder of a bill sues as^^j^p^^g^j 
agent for another person, or when he sues wholly or"^*"**""' 
in part for the benefit of another person, any defense 
or set-off available against that person is available 
pro tanto against the holder.^ Cf Art. 88. 

Illustrations. 

1. C, the holder of a bill, indorses it to D. for collection. 
D. can sue on it, but any defense available against C is availa- 
ble against D.'' 

3. D. is the holder of a dishonored bill for $100 indorsed by 
C. C. pays D. $60. D. sues the acceptor. As to 160, D. sues 
as trustee for C, and only as to $40 on his own account. As 
regards $60, any set-off which the acceptor may have against 

C. is equally available against D.^ 

Art. 142. Subject to Arts. 98 and 99, when a bill Aeti^™j"> ^^u 
is payable to a particular person or persons, or to his ^^'''''^^^y- 
or their order, an action thereon must be brought in 
the name of such person or persons.* 

Illtjstbations. 

1. A bill is specially indorsed to the firm of " D. & Co." 
An action on it must be brought in the name of the firm. The 
managing partner cannot sue on'it in his own name. 

3. A bill is specially indorsed to D., a partner in the firm of 
X. & Co. in payment of a- debt due to the firm. An action on it 

2 E. & B. 89 ; Cf. Megrath v. Gray (1874), 9 L. R. C. P. 216 ; Richard- 
son v. Uncoln (1842), 5 Met. (Mass.) 201. 

'iee V. Zagury (1817), 8 Taunt. 114 : Roxjce v. Somes (1846), 11 Met. 
(Mass.), 276 ; Agra Bank v. Leighton (1866), 2 L. R. Ex. 56 ; Se Anglo- 
Greek Nav. Co. (1869), 4 L. R. Ch. 174 ; Pothier, No. 41 ; Cf. Becher- 
vaise v. Lewis (1872), 7 L. R. C. P. 372. 

^ De la Chaumeite y. Bank (1829), 9 B. & C. 208, as explained by 
Goodwin v. Sobarts (1875), 10 L.R. Ex. at 164, Ex. Ch.; Royce^. Barnes, 
supra. 

3 Thornton v. Maynard (1875), 10 L. R. C. P. 695. 

*AUwood V. Rattenbury (1822), 6 Moore at 583 ; Pease r. Hirst (1829), 
10 B. & C. 122 ; Nichols v. Gross (l875), 26 0. St. 425 ; Noxon v. Smith 
(1879), 127 Mass. 485 ; Barry Co. v. McGlothUn (1854), 19 Mo. 307 (" Pay 

D. for the use of X."). 

10 



146 BILLS OF EXCHANGE. [art. 143. 

Actionon must be brought in D.'s name, and not in the name of the 
till payable „ , 
specially. lirm.' 

Note. — In the case given in Illust. 1, the managing partner ' 
might indorse the bill in the firm's name to himself and then 
sue. Cf. Art. 119, n., as to striking out indorsements. 

pfyawe°to"'^ Art. 143. Subjcct to Art. 141, when a bill is pay- 
^"^"^^ able to bearer an action thereon may be brought iu 

the name of any person who has either the actual or 
the constructive possession thereof. 

Il/LUSTEATIONS. 

1. C, the holder of a bill, indorses it in blank to D. to col- 
lect it for him. Either 0. or D. may sue the acceptor." 

2. A bill accepted by B. is indorsed in blank by C, D. E. 
and F., bring an action on the bill against B. They can re- 
cover, although there is no evidence to shbw that they are part- 
ners, or what the nature of their joint interest is.' 

3. A bill Is indorsed in blank to a firm. Any one of the 
partners may bring an action on it in his own name.* 

4. A bill indorsed in blank is handed to the manager of a 
company in payment of a debt due to the company. The man- 
ager may sue on it in his own name.* 

5. A bill indorsed in blank is given to D.'s attorney, who 
commences an action, on it against the acceptor in D.'s name. 
D. knows nothing of the matter, but after the action has pro- 
ceeded some way he is told of it, and then gives his consent. 
D. can maintain the action.' 

^Bawden v. Howell (1841), 3 M. & Gr. 638. 

2 Clerk V. Pigot (1699), 12 Mod. 193 ; Cf. Stone v. Butt (1834), 2 Ci-. & 
M. 416. But that D. cannot sue, see Best \.Bank (1875), 76 111. 608 
(statute). 

8 Ord V. Portal (1812), 3 Camp. 239 ; Cf. Bordunz v. Leach (1816), 1 
Stark. 446 ; Low v. Copestake (1828), 3 C. & P. 300. 

^ Lindley, p. 802 ; Attwood v. Rattenhury (1822), 6 Moore, 579 ; Wood 
V. Connop (1843), 5 Q. B. 292, as to joint holders ; Conover v. Earl 
(1868), 26 la. 168, as to holders in common. 

« Law V. Parnell (1859), 7 C. B. N. S. 282 ; Cf. PeUee v. Prout (1855), 
3 Gray (Mass.), 502. 

« Ancona v. Marks (1862), 31 L. J. Ex. 163 ; Craig v. Twomey (1860), 
14 Gray (Mass.), 486. 



AET. 144.] TRANSFER. 147 

6. D., the holder of a bill indorsed in blank, does not wish Action on bui 
. . , . TT T 1 1 T-1 i payable to 

to sue on it in his own name. He accordingly asks Ji. to sue bearer. 

on it. E. consents. E.gets a copy of the bill, and it is agreed 
that he shall have the original when wanted. E. commences 
an action against the acceptor, and after action brought he 
gets the bill. E. cannot maintain this action, for at the time 
he began it he had neither the actual nor the constructive pos- 
session of the bill.^ 

Explanation. — A constructive possession jointly 

witli others is sufl&cient to entitle the possessor to sue 

alone. 

Illustkatiok. 

A note payable to bearer is handed to the solicitor of a loan 
society in payment of a debt due to the society. D., a mem- 
ber of the society, instructs the solicitor to commence an ac- 
tion on it in his (D.'s) name against the maker. D. can main- 
tain this action.' 

Note. — As to constructive possession, see Art. 53 n. 

Art. 144. If a bill, negotiable by delivery,^ is lost, Action on lost 
no action at law can be maintained thereon/ though 
lost when overdue,^ unless 

(1) The bill is shown to have been destroyed.® 

■ Emmett v. Tottenham (1853), 8 Exch. 884 ; Of. Rovev v. Sebring 
(1872), 24 Mich, at 233. But cf. Austin v. Birchard (1859), 31 Vt. 589. 

2 Jenkins v. Tongue (I860), 29 L. J. Ex. 147. 

' Aliter, if non-negotiable — Hough, v. Barton (1848), 20 Vt. 455 ; Price 
v. Dunlap (1855), 5 Gal. 483. Or^egotiable only by indorsement — Lazell 
V. Lazell (1840), 12 Vt. at 449 ; Wright v. WrigU (1873), 54 N. T. 487; 
Depew V. Whelan (1843), 6 Blaclrf. (Ind.) 485 ; Rogers v. Miller (1843), 4 
Scam. (111.) 333. Contra in England, Crowie v. Clai/ (1854), 9 Exch. 604. 

^Hansard y. Robinson (1827), 7 B. & C. 90 ; Thayer v. King (1846), 
15 242 ; Rowley v. Ball (1824), 3 Cow. (N. Y.) 303. Contra, in Mass., 
plaintiff being compelled to give bond of indemnify, Fales v. Russell 
(1835), 16 Pick. (Mass.) 315 ; Tucher v. Tucker (1875), 119 Mass. 79 ; un- 
less defendant is indorser, Tuttle v. Standish (1862), 4 Allen (Mass.), 481. 
See, also, Renner v. Bank (1824), 9 Wheat. (IT. S.) 581 : Welton v. 
Adams (1854), 4 Cal. 37. 

' Rowley v. Ball, supra ; Swift v. Stevens (1831), 8 Conn, at 436. 
Contra, Thayer v. King, supra. 

« Wright v. Maidstone (1855), 1 Kay & J. 701 ; DeArts v. Leggett 
(18.58), 16 N. Y. 582 ; Baldwin v. Wade (1878), 20 Kans. 251 ; Hagers- 
town V. Adams' Ex. Co. (1863), 45 Pa. St. 419, applied to bakk notes, 



lis BILLS OF EXCHANGE. [aet. 144. 

Action on lost (2) The bill 18 shown to have come into the pos- 
session of the defendant since the loss.'^ 
(3) The defendant is protected from future liability 
by the statute of limitations.*^ 

Note. — This matter is now regulated by statute in Eng- 
land,° and in some of the states. Unless the defendant runs 
no risk of future liability to a bond fide holder, by non-surren- 
der of the instrument, the remedy of the plaintiff is solely in 
equity, -where the defendant's rights can be approximately pro- 
tected by a bond of indemnity. 

but see Tower v. Bank (1862), 3 Allen (Mass A 387. No recovery if vol- 
untarily destroyed, Booth v. Simth (1876), 3 "Woods^C. Ct.), 19. 

^ Smith V. M'Clure (1804), 5 Bast, 476 : Garlock v. Geortner (1831), 7 
Wend. (N. Y.)_198. 

2 Torrey v. Foss (1855), 40 Me. 74 ; Moses v. Trice (1871), 21 Grat. 
(Va.) 556. 

« 17 & 18 Vict. c. 125, § 87. Cf. Kinff v. Zimmerman (18711, 6 L. R. 
C. P. 466, and see Wright v. Maidstone, (1855) 1 Kay & J. 701 



CHAPTER V. 

DUTIES OF THE HOLDER, 
Art. 146. When a party to a bill is discharged Effect m^c™- 
from his liability thereon by reason of the holder's hoialr™duties. 
omission to perform his duties as to presentment for 
acceptance or payment, protest, or notice of dishonor, 
such party is also discharged from liability on the con- 
sideration for which the bill was given.^ 

Note. — The holder's omission, without lawful excuse, to per- 
form his duties with reference to a bill is commonly called 
" laches." 



Presentment for Acceptance. 
Art. 147. Presentment for acceptance is necessary when nec- 

1 pi-npT 11 r" essary or op- 

in the case or a bill oi exchange payable at or alter 'ioii°J- 
sight. In other cases, in the absence of express stip- 
ulation, it is optional.^ 

Illustration. 

A. draws a bill on B. payable at the " X. bank " three months 
after date. Presentment to B. for acceptance is not necessary. 
It is sufficient to present the bill for payment when due at the 
X. bank.' 

Note. — Although presentment for acceptance is unnecessary 

' Byles, pp. 215 and 292, and Arts. 160, 190 ; Of. Crowe v. Claii 
(18-54), 9 Exch. 604. 

^Eamchurn y. Radabissen (1854), 9 Moore P. C. at 65, 66 ; Allen v. 
Sut/dam (1838), 20 Wend. (N. Y.) at 323 ; Cribls v. Adams (1859), 13 
Gray (Mass.), 597 ; Bank v. TripleU (1828), 1 Pet. (U. S.lf 25. 

» Walker v. Stetson (1869), 19 D. St. 400 

(149) 



150 



BILLS OF EXCHANGE. [ART. 148-50. 



When neces- 
sary or op- 
tional. 



Due present- 
ment for ac- 
ceptance. 



on date bills as between the hblder and drawer or indorsers, an 
agent for collection must use due diligence in presenting them 
for acceptance, or he will be liable to his prifloipal for damage 
resulting from his negligence.^ "Sight" in a bill means ac- 
ceptance, and as sight bills are, in the absence of statute, en- 
titled to grace, presentment for acceptance is necessary to fix 
the day of maturity. Suppose A. draws a bill on B, in Liver- 
pool, payable in London, but not saying where, is not present- 
ment for acceptance necessary? It would be so in Franeb, 
Nouguier., § 1068. By German Exchange Law, Art. M, when 
a bill is drawn payable at the house of a third person, the 
drawer may insert a stipulation requiring presentment for ac- 
ceptance. In France it seems the drawer or indorser of any 
bill may insert such a stipulation, Wouguier, §§ 464-469. 

Art. 148. Due presentment for acceptance is a con- 
dition precedent to the exercise by the holder of the 
rights which arise on dishonor by non-acceptance. 
(C£ Art. 167.) 

Explanation. — " Due presentment for acceptance " 
means presentment in accordance with Arts. 149 to 
154. 

Note. — " Presentment " means actual exhibition of the bill, 
and it is not duly presented if the holder merely informs 
drawee that he has it in his possession, but does not produce 
it, though the drawee says he will not accept it.^ Subject to 
Art. 150, Expl. 3, the question of due presentment is only ma- 
terial when acceptance cannot be obtained. If acceptance is 
obtained the informality of the presentment is immaterial. It 
is clear that rules as to presentment for payment do not apply 
in their entirety to presentment for acceptance. Of. Art. 155, n. 

By whom. Art. 149. Any person in ' possession , of a bUl of 

exchange may present it for acceptance.^ 
Time for pre- Art. 150. The holder of a bill of exchange payable 
lftei"fght. at or after sight is bound either to negotiate it away 

' As to date bill, Allen v. Suydam (1838), 20 Wend. (N. T.) 321 ; 
Pothier, No. 128 ; Nouguier, § 462. As to sight bills, Bank of Van 
Dieman's Land v. Bank (1871), 3 L. R. P. C. at 54a Cf. Art. 164, n. 

^Bankv. WiUard (1842), 5 Met. (Mass.) at 222. 

'Nouguier, § 462 ; German Exchange Law, Art. 18 ; Thomson, p. 282 ; 
Cf. Morrison v. Buchanan (1833), 6 C. & P. 18, and Art. 28, as to the 
parts of a set. 



AET. 150.] DUTIES OF THE HOLDER. 151 

or to present it for acceptance within a reasonable JJSf/°^Sf • 
time. If lie omit to do so the drawer and prior in- aitoi- ^igut. 
dorsers are discharged.^ 

Explanation 1. — Eeasonable time is a mixed ques- 
tion of law and fact.^ 

Explanation 2. — In determining what is a reason- 
able time regard is to be had to the nature of the bill, 
the usage of trade with respect to similar bills, and 
the circumstances of the particular case looking to the 
interests both of the hplder and the drawer.^ 

Illxjsteations. 

1. A. in "Windsor draws a bill on B. in London, payable one 
month after sight. The holder keeps it four days before pre- 
senting it for acceptance. It is then dishonored. This may 
not be an unreasonable delay.'' 

2. A. in London draws a bill on B. in Rio, payable sixty 
days after sight. The payee holds it back for four months, 
during ■which time Rio bills are at a discount. He then 
negotiates it. This may not be an unreasonable delay.^ 

3. A. in Newfoundland draws a bill (in a set) on B. in Lon- 
don, payable ninety days after sight. The payee holds it back 
for two months and then forwards it for presentment. No 
reason for holding back is shown. This may be an unreason- 
able delay.' 

^MelUsh V. Eawdon (1832), 9 Biag. 416; Eamchurn v. Eadakissen 
(1854), 9 Moore P. C. 46 ; Wallace y. Agry, (1827), 4 Mason (C. Ct.), 836; 
Strong v. King (1864), 35 DI. 9 ; Cf. Goupy v. Harden (1816), 7 Taunt, 
at 163. Cf. Art. 146. 

2 Id.; Cf. Prescott Bank v. Caverly (1856), 7 Gray (Mass.), at 221; 
Walsh V. Dart (1868), 23 Wis. 834. Contra — law, Aymcir v. Beers 
(1827), 7 Cow. (N. Y.) 705 ; Himmelmann v. Hotaling (1870), 40 Cal. 
Ill ; fact, Wallace v. Agra, supra ; Pryor v. Bowman (1874), 88 
la. 92. 

*Id.; Wallace y. Agra, supra. 

*Fry V. Hill (1817), 7 Taunt. 395 ; Cf. Shute v. Rolins (1828), 2 C. & 
P. 80. See Gowan v. Jackson (1822), 20 Johns. (N. Y.) 176, six months 
in circulation. 

^ Mellish V. Bawdon, supra. 

8 Straker T. Graham (1839), 4 M. & W. 721 ; Cf. Dumont v. Pope 
(1845), 7 Blackf. (Ind.) 367 ; Art. 28. 



152 



BILLS OF EXCHANGE. 



[aet. 161. 



Time for pre- 
senting .bill 
after sight. 



Time for pre- 
nenting other 
bills. 



4. A., in Calcutta draws a bill on B. in Hong Kong, payable 
sixty days after sight. The holder retains it for five months, 
during which time China bills are at a discount. He then ne- 
gotiates it. This may be an unreasonable delay. ^ 

Explanation 3. — When there is unreasonable de- 
lay, the drawer and, prior indorsers are (probably) 
discharged, although the bill when presented is ac- 
cepted.^ 

Illustration'. 

A. draws a bill on B. payable to C. three months after sight- 
C. holds it back for an unreasonable time. He then presents 
it and it is accepted. Before it is due the acceptor fails. A. 
is discharged. 

Note. — Qu. What is the liability of a person who retains a 
bill an unreasonable time and then negotiates it without indorse- 
ment? Aajain, does negotiation within a reasonable time, 
toties guoties, excuse presentment, or is there any limit ? By 
German Exchange Law, Art. 19, when a bill payable after 
sight does not fix a time for presentment, it must be presented 
within two years of its date. By French Code, Art. 160, as 
amended by the law of May 3, 1862, bills payable after sight 
are divided into classes according to the places where they are 
drawn and payable, and definite limits of time for presentment 
are fixed, varying from three months to one year — e.g., bill 
drawn in Paris on London must be presented for acceptance 
within three months. The effect of this conflict of laws has 
not been considered; 

Art. 151. A bill of exchange, payable otherwise 
than at or after sight, may be presented for accept- 
ance at any time before maturity.^ 

Note. — In the case of a bill which is due or payable on de- 
mand, presentment for acceptance is merged in presentment 
for payment. In the case of a bill payable after date, it has 
been held in New York (the only decision on the point in Eng- 



' Eamchurn v. Bafah'saen (1854), 9 Moore P. C. 46 ; Cf. Godfray v. 
Couhnan (1859)) 13 1-Ojre P. C. 11 ; Phoenix Ins. Co. v. Allen (1863,) 
11 Mich. 501. 

2 Stralcer v. Graham (1839), 4 M. A- W. 721. 

5 O'Keefe v. Dunn (1816), 6 Taunt. 307 ; Townsley v. Sumrall (1829), 
2 Pet. (U. S.) 170 ; Germaa Exchange Law, Art. 18 ; Nouguier, § 456. 



AET. 152-53.]' DUTIES OF THE HOLDER. 153 

land or America) that it may be presented for acceptance on Time for pre- 
the very day it becomes due, and if refused, it may be treated ^^^ ""^^"^ 
as dishonored either for non-acceptance or non-payment.' 
Considering the difference in the rules which govern the two 
kinds of presentment, this might have important consequences. 
See, also, Art. 34. When a bill is presented for payment, the 
drawee instead of paying it, often accepts it payable at liis 
bankers. This is in effect a payment by check,^ which the 
holder might refuse to take. 

Art. 152. Presentment for acceptance must (pro- Day and hours, 
bably) be made on a business day, and at a reasonable 
hour.^ 

^Explanation 1.— ^Wben the drawee is a trader 
reasonable hours mean the ordinary business hours of 
his trade.* 

Illusteatios". 

Bill drawn on a banker is presented for acceptance after 
banking hours and the bank is found closed. The bill cannot 
be treated as dishonored. 

Note. — It has been held, moreover, that if a bill payable after 
date be presented for acceptance at the house of the drawee, 
his absence when presented, though at a reasonable hour, would 
not justify a protest for non-acceptance.^ Probably if present- 
ment was made on a non-business day, or at an. unreasonable 
hour, and the drawee refused acceptance on some other ground, 
the bill might be treated as dishonored. 

Art. 153. Presentment for acceptance must be to whom ana 
made to the drawee personally, or to some person who 
has authority to accept or refuse acceptance on his 
behalf.^ 

Explanation 1. — When a bill of exchange is drawn 

^ Plato V. EeynoUs (1S63), 27 N. Y. 586, Marvin, J., dissenting. 

"Cf. Bishop V. Chitti/ (1742), 2 Stra. 1195. 

'Nelson v. Fotterall (1836), 7 Leigh (Va.), 179 ; CMtty, p. 199 ; Byles, 
p. 182. Of. Art. 163 and Startup v. MacdonaU (1843), 6 M. & Gfr. at 
624. 

*Ci..Nelson v. Fotterall (1836), 7 Leigh (Va.), at 194, and Art. 163. 

^BankY. Triplett (1828), 1 Pet. (U. S.) 25, at 35. 

« Chetk V. Roper (1804), 5 Esp. 175 ; Sharpe v. Drew (1857), 9 Ind. 281 



151 



BILLS OF EXCHANGE. [Akt. 154-65. 



Drawee may 
retain bill 
twenty-four 
houra. 



T^jhomand payable at the house or place of business of some per- 
son other than the drawee, presentment for acceptance 
at such house or. place is not a presentment to the 
drawee.-*- 

Explanation 2. — When the drawee is dead present- 
ment must (perhaps) be made to his executor or ad- 
ministrator.^ 

Note. — The law on this point is not yet settled. 

Explanation 3. — If a bill is drawn on two or more 
persons, presentment for acceptance to one is (proba- 
bly) sufficient, whether partners or-not.^ 

Art 154. The person who presents a bill of ex- 
change for acceptance must deliver it up to the drawee 
if required so to do. The drawee is entitled to retain 
it for twenty-four hours, but after the expiration of 
this time he must redeliver it accepted or unaccepted.* 

Explanation 1. — In reckoning the twenty-four 
hours non-business days must be excluded.^ 

Explanation 2. — ^If after the expiration of the 
twenty-four hours the drawee rpfuses to redeliver the 
bill it must be treated as dishonored in order to pre- 
serve the holder's right of recourse against antecedent 
parties.® 
Presentment Art. 155. Presentment for acceptance is excused, 

for acceptance, -'■ ' ' 

when excused, and a Mil of cxchange may be treated as dishonored 
, by non-acceptance : 

1 Chittif, p. 196 ; Cf. Art. 155, n. 

2 Of. Smith V. N. S. Wales Bank (1872), 8 Moore, P. C. N. S. at 461- 
462, per Mellish, L. J. But see Daniel, § 458. French Code, Art. 163. 

' Daniel, § 455. 

* Bank v. Victoria Bank (1871), 3 L. R. P. C. at 542-543 ; Case v. Burt 
(1866), 15 Mich. 82 ; Overman v. Bank (1864), 81 N. J. L. at 565 ; Story, 
§237 ; French Code, Art. 125. 

^ Id see at 546-547, as to the effect of a short day— e.ff., Saturday. 

« Id.; Cf. Ingram v. Forster (1805), 2 J. P. Smith, 242 ; Genni*n Ex- 
change Law, Art. 20. 



AET. 155.] ■ DUTIES OF THE HOLDER. 155 

1. When the drawee is discovered to be a ficti- ^„^/|™^™* 
tious person^ or (perhaps) a person not having capacity ousedr"^^'^ ^^" 
to contract.^ 

2. (Probably) when, after the exercise o£ reason- 
able diligence, presentment cannot be effected.* 

3. When the drawee is not in funds, and the 
drawer has no reasonable expectation that the bill 
will be accepted.* 

Note. — In Anon (1700), 1 Ld. Raym. 743, where the drawee 
had absconded, the bill was merely protested for better secur- 
ity, and at maturity it was again protested for non-payment. 
This seems to be the only case in point, but it can hardly be a 
binding precedent now that it is settled that a right of action 
at once arises on dishonor by non-acceptance (Art. 157). At 
the same time it is cleax that considerations applicable to pre- 
sentment for payment do not apply in their entirety to present- 
ment for acceptance. Speaking generally, presentment for ac- 
ceptance must be personal, while presentment for payment 
must be local. A bill must be presented for payment where 
the money is. Any one can then hand over the money (Cf. 
Art. 167). A bill must be presented for acceptance to the 
drawee himself, for he has to write the acceptance ; but the 
place where it is presented to him is comparativelyimmaterial, 
for all he has to do is to take the bill (Cf. Art. 154). Again 
(except in the case of demand dra ts) the day for payment is a 
fixed day, but the drawee cannot tell on what day it may suit 
the holder to present a bill for acceptance. If the drawee be 
a trader, it is clear that the bill should be presented for accept- 
ance at his place of business, but suppose the drawee is not 
there, what further steps must be taken? What diligence 
must be used before the bill can be treated as dishonored? 
The immediate right of action which arises on non-acceptance 
is an exceptional right.* How far ought it to be favored? It 
is one thing to excuse delay where presentment is necessary, 

' Cf. Smith V. Bellamy {1817), 2 Stark. 223. 

'Byles, p. 187 ; no decision in point. 

' Byles, p. 183 ; Chitty, p. 199 ; Brooks' Notary,- 4th ed. p. 79 ; no de- 
cision in point. Cf. Smith v. N. S. Wales Bank (1872), 8 Moore, P. C. 
N. S. at 461-463. Delay excused by sickness or unavoidable accident, 
Aymar v. Beers (1827), 7 Cow. (N. T.) 705 ; Cf. Art. 169. 

* Robinson v. Ames (1822), 20 Johns. (N. T.) 146 ; Cf. Ex parte Ton- 
deur (1867), 5 L. E. Eq. at 165 ; Art. 168. 

^Cf. Art. 157, n., and Dunn v. O'Keefe (1816), 5 M. & S. at 289, Ab- 
bott, C. J. 



156 BILLS OF EXCHANGE. [aet. 156-57. 

Presentment, another to treat a bill as dishonored where presentment is op- 
"^^ tional. 

Disiionoriby Art. 156. A bill of exchange is dishonored by 

auce. " non-acceptance," (1) when it is duly presented for 

acceptance, and an acceptance in due form is refuged 

or cannot be obtained, or (2) when presentment for 

acceptance is excused, and the bill is not accepted. 

Consequence Art. 167. Subjcct to Art. 48, wheu a bill of ex- 

of dishonor by , . , . , , , , . ,. 

g[m-acoepi> change is dishonored by non-acceptance, an immedi- 
ate right of recourse against the drawer and iudorsers 
accrues to the holder, provided that the proper pro- 
ceedings on dishonor be taken.^ 

Illusteation. 

A. draws a bill on B. payable to C three months after date. 
Two days after it is drawn C. presents the bill to B. for ac- 
ceptance. B. dishonors it. C. can at once sue A. on the bill. 
He need not wait till it matures. 

Note. — This rule seems peculiar to English and American 
law. On the continent the holder can only protest the bill lor 
non-acceptance and demand security from the drawer and in- 
dorsers. When the bill matures he must again present it for 
payment. His right of action arises on non-payment.^ The 
effect of this conflict of laws has not been judicially con- 
sidered. 

Explanation. — The holder of a bill of exchange 
which has been dishonored by non-acceptance may 
re-present it to the drawee for acceptance or payment, 
though he is not bound so to do.^ 

Note. — Suppose a bill is presented for acceptance and dis- 

> Whitehead v. Walker (1842), 9 M. & W. at 516 : Watson v. Tarpley 
(1855), 18 How. (U. S.) 517 ; Walsh y. Blatchley (1853), 6 Wis. 422. 
Notice of dishonor necessary. Art. 189. 

_ ■'French Code, Arts. 119-120; German Exchange Law, Arts. 25-28. 
also the law in Penn. : Read v. Adams (1821), 6 Serg. & R. 856. 

^HiclcUng v. Hardey (1817), 7 Taunt. 312; Lenox v. Coofc. (1812), 8 
Mass. 460. 



ART. 158-60.] DUTIES OF THE HOLDER. 157 

honored. The holder gives no notice of dishonor, but re-pre- Consequence 
sents the bill a few days after and gets it accepted. It is dis- SonScept''^ 
honored by non-payment. Are the drawer and indorsers dis- a^ce. 
charged as regards such holder? A subsequent holder without 
notice would not be affected (Art. 191). The proper course is 
to give notice of dishonor, and at the same time to intimate an 
intention to re-present. 



Duties as to Qualified Acceptances. 
Art. 158. The holder of a bill of exchange is en- Houer's right 

. 1 -I . . 1 n xc 1 to general ac- 

titled. to have it accepted generally. It a general ac- ceptanoe. 
ceptance be refused and a qualified acceptance is of- 
fered or given, the bill may be treated as dishon- 
ored.^ 

Note. — As to general and qualified acceptances, see Arts. 
38, 39. By German Exchange Law, Art. 20, if the acceptor 
refuse to date his acceptance on a bill payable after sight it 
may be treated as dishonored. 

Art. 169. If the holder of a bill of exchange elect Notice of 

" qualified ac- 

to take a qualified acceptance, he must give notice of «eptance. 
the qualification to antecedent parties.^ 

Note. — As to the effect of the notice when given, see Art. 
40. A foreign bill should be protested as to the variation. 
The notice given must be notice of qualification, not notice of 
dishonor. If the holder give notice of dishonor, he cannot take 
advantage of the acceptance.' 



Presentment for Payment to charge Drawer and 
Indorsers. 

Art. 160. Due presentment lor payment, unless Necessity for 

- X ./ presentment. 

^Boehm v. Garcias (1808), 1 Camp. 425 ; Gammon v. Schmoll (1814), 
5 Taunt, at 353 ; Ford v. Angelrodtll865), 37 Mo. 50 ; Of. French Code, 
Art. 124 ; German Exchange Law, Art. 22. 

2 Cf. Sehag v. AbUhol (1816), 4 M. & S. at 466, Bayley, J.; Whitehead' 
V. Walker (1842), 9 M. & W. at 509 ; Walker v. Bank (1854), 9 N. Y. 
too 

'Cf. Bentinck v. Dorrien (1805), 6 Bast, 199. 



158 BILLS OF EXCHANGE. [abt. 160-61.' 

Necessitry for excused/ is a Condition precedent to the liability of 

presentment. ' . jr J 

the drawer or indorser of a bill of exchange.^ The 
omission by the holder to make due presentment de- 
prives him of any right of action on the consideration, 
as well as of his right of recourse on the instrument.^ 
Explanation. — Due presentment for payment means 
presentment in accordance with Arts. 160 (a) to 167. 

Note — The rules applicable to the drawer or indorser of a 
bill apply equally to the indorser of a note * or check,^ but they 
are modified as to time as regards the drawer of a check (Art. 
258). See Art. 155, n., presentment for payment and present- 
ment for acceptance contrasted. According to French Code, 
Art. 161, a bill must be presented for payment on the day it 
falls due, but it seems no penalty follows the omission to pre- 
sent, provided the bill be duly protested on the following day : 
Nouguier, § 1076. Practically, then, protest is substituted for 
presentment for payment. Again, a distinction is drawn be- 
tween the drawar and the indorsers. Omission duly to protest 
discharges the indorsers, but the drawer is not discharged unless 
he shows affirmatively that the drawee or acceptor had funds to 
meet the bill." 

■What holder ^ Art. 160 (o). When a bill is presented for pay- 
must demand. ^ ' ' '- •! 

ment, payment must be demanded accordmg to the 
tenor of the bill.'' 

Illustration. 

Holder presents a bill legally payable in silver, and demands 
payment in gold coin. ^ This is not a due poesentment.' 

At what time Art. 161. A bill payable at or after sight or at a 

bill payable in - •' ° 

» Cf. Arts. 200, 201, as to excuses. 

2 Of. Rowe V. Young (1820), 2 Bligh. H. L. at 467 ; Wood v. Surnlls 
(1878), 89 111. 107 ; German Exchange Law, Arts. 41 and 91. 

^Soward v. Palmer (1818), 8 Taunt. 277 ; Peacock v. Purcell (1863), 
S2 L. J. C. P. 266 ; Smith v. Miller (1870), 43 N. Y. 171 ; Adams v. 
Boyd (1878), 33 Ark. 33. 

*Cf. Gibb V. Mather (1832), 2 Cr. & J. at 263-263, Ex. Ch. 

^ Barker Y. Anderson (1839), 21 Wend. (N. Y.) 372. 

'French Code, Arts. 117, 170 ; Nouguier, §§ 1147-1165. 

' Simpson v. Pacifc Ins. Co. (1872), 44 Gal. 139, at 143. 

^Langenberger-v. Kroeger (1874), 48 Cal. 147. 



faturo. 



„- paya- 
ble on de- 



AET. 162-63.] DUTIES OF THE HOLDER. 159 

future time (Art. 19) must be presented for payment At what time 

on tlie day that it falls due/ as determined by Art. 20. 

Art. 162. A bill of exchange payable on demand bui rf^' 

(Art. 18) must be presented for payment within a Sand. 

reasonable time,^ 

Note. — There seems to be no English decision inpoint._ The 
cases have arisen either on checks or notes. A check is in- 
tended for prompt presentment and not for negotiation (Art. 
254), so it is doubtful how far the cases on checks apply, even 
to an inland bill.' A note, on the other hand, is a continuing 
security (Art. 285). Under the continental codes, a bill paya- 
ble at sight must be presented for payment within the same 
limit of time that a bill payable after sight must be presented 
for acceptance. This seems the true principle ; see Art. 150 
on this point. 

Explanation. — The holder of a bill who indorses it 
when overdue, is to be deemed an indorser of a bill pay- 
able on demand, within the meaning of this Article.* 

iLLTJSTKATIOISr. 

C. is the holder of an overdue bill payable six months after 
date. He indorses it to D. D. must present it to the acceptor 
for payment within a reasonable time in order to hold C. as 
indorser.' 

Art. 163. Presentment for payment must be made jeasonabie 

■t •! hour. 

during reasonable hours.® 

^Philpot. V. Bryant (1828), 4 Bing'. at 720 ; Windham Bank v. Norton 
(1852), 22 Conn. 213 ; Barnes v. Vaughan (1859), 6 R. I. 259 ; French 
Code, Art. 161 ; see e.g., Wiffen v. Roberts, (1795), 1 Esp. 262, present- 
mBnt on second day of grace ; Prideaux v. Collier (1817), 2 Stark. 58, 
presentment on day after maturity. Presentment necessary at the time 
each installment of biU falls (Jue, Eastman v. Furman (1864), 24 Cal. 379. 

^Bi/les, p. 209 Story, § 325. Reasonable time : Nat. Banking Co. v. 
Banic (1869), 63 Pa. St. 404 ; Munct/ Dist. v. Commonwealth (1877), 84 
Pa. St. 464. Unreasonable time : Chambers v. Hill (1868), 26 Tex. 472. 
Same rule as to bills at sight without grace : Montelius v. Charles 
(1875), 76 111. 303 ; Walsh v. Dart (1868), 23 Wis. 334. 

8 But see Harker v. Anderson (1839), 21 Wend. (N. T.) 372. 

* Bishop V. Dexter (1818), 2 Conn. 419 ; Pryor v. Bowman (1874), 38 
la. 92 ; Light v. Kingsbury (1872), 50 Me. 331 ; Beebe v. Brooks (1859), 
12 Cal. 308. 

'Sic-artz V. BedfieU (1874), 13 Kans. 550. 

« Wilhins V. Jadis (1831), 2 B. & Ad. 188, 



160 BILLS OF EXCHANGE. [aet. 163. 

^Monabie Explanation 1. — ^WBen the payor is a trader, and 
tlie bill is payable at bis place of business, reasonable 
hours mean the ordinary business hours of his trade.^ 

IlLX7STB,ATI0NS. 

1. Bill accepted payable at a bank. It must be presented 
during banking hours.'' 

3. Bill drawn on a merchant is presented for payment at his 
counting-house at 6.30. This may be a reasonable hour.' 

3. Bill payable at the private residence of the payor is pre- 
sented for payment at 8 p. m. This is a reasonable hour.* 

4. Bill payable generally is presented for payment at 11 
p. m. at the acceptor's private residence. This is an unreason- 
able hour.' 

Note. — The reasonableness of the hour must depend on 
whether the payor's place of business is also his residence. He 
is not bound to stay at his place of business after the usual 
hour. When a bill is payable at the payor's residence, proba- 
bly a presentment up to bed-time would be sufficient.' 

Explanation 2. — When presentnient is made at an 
unreasonable kour, but payment is refused on some 
other ground, the bill is deemed to have been duly 
presented.'' 

Illusteatiok. 

Bill payable at bank is presented after banking hours to the 
cashier, who is found at the bank, and he merely replies, " no 
funds." This is a due presentment.' 

^Elfordv. Teed (1813), 1 M. & S. 28 ; Ci. Startup v. MacdonaU 
(1843), 6 M. & Gr. at 624 ; Allen v. Edmundson (1848), 2 Exch. at 723. 

nd.; Parker v. Gordon (1806), 7 Bast. 385 ; Bank v. Corneal (1829), 
2 Pet. 543 ; Cf. WhUaker v. Bank (1835), 1 C. M. & R. 750, bankers 
duty to pay, see next Expl. 

' Morgan v. Davison (1815), 1 Stark. 114 ; Cf. Barclay v. Bailey (1810), 
2 Camp. 527, 8 p. m. Have business hours chahged since then? 

* Triggs v. Newnham (1825), 10 Moore, 249 ; Wilkins v. Jadis, supra; 
Cf. Farnsworth v. Allen (1855), 4 Gray (Mass.), 453, 9 p. m. 

'Danav. Sawyer {1843), 22 Me. 244; Cf. Lunt v. Adams (1840), 17 
Me. 230, 8 a.m. 

^Skelton v. Dustin (1879), 92 III. 49. 

"Henry v. Lee (1814), 2 Chitty, 124; Gamett v. Woodcock (1817), 6 
M. & S. 44 ; Dana v. Sawyer, supra. 

^Salt Spring Bank v Burton (1874), 58 N. T. 430; Bank v. HolUster 



« 
ART. 164-.] DUTIES OF THE HOLDER. 161 

Art. 164. Presentment for payment must be madefy whom, 
by the holder of a bill, or by some person authorized 
to receive the money on his behalf.^ Cf. Art. 236. 

Exception. — Presentment througli the post-office 
may be sufficient.^ 

Note. — As to who must make the presentment preliminary 
to protest, see Art. 177, n. Duties of Agent. — A colleotiiig 
agent is, of course, liable to his principal if he does not use due 
diligence in presenting a bill for payment and take the proper 
proceedings on dishonor.' The same rule applies to a pledgee 
or person holding a bill as collateral security.* An agent is, 
as a rule, responsible for the default of a sub-agent whom he 
employs ; and it is accordingly held that a bank receiving a 
bill for collection, whether payable at its counter or elsewhere, 
is liable for any default occurring in its collection, whether of 
the officers and immediate servants, or other agents of the bank 
or its correspondents, or agents employed by such correspond- 
ents, including the notary, at least in the absence of any usage 
or agreement to the contrary;' but other authorities holding 
this rule admit an exception when the sub-agent is a notary, 
on the ground that he is a public officer and the agent of the 
holder.^ On the other hand, it is held by some courts, that the 
duty of the collecting bank is discharged by the exercise of 
due care in the selection of suitable sub-agents.' 

(1858), 17 N. Y. 46 ; Shepherd v. Chamberlain (1857), 8 Gray (Mass.j 
225 ; First Nat. Bank v. Owen (1867), 23 la. 185 ; Seed v. Wilson 
.(1879), 41 N. J. L. 29. 

' Leftley v. Mills (1791), 4 T. E. at 175 ; Walker v. Macdonald (1848), 
2 Exch. at 532 ; Cf. Cole v. Jessop (1854), 10 N. Y. at 100 ; Shed v. Brett 
(1823), 1 Pick. (Mass.) 401. 

2 Heywood v. Pickering (1874), 9 L. R. Q. B. 428 at 432 ; Pier v. Hein- 
richshoffen (1877), 67 Mo. 163 ; Cf. Prideaux v. Criddle (1869), 4 L. R. 
Q. B. at 461 ; Windham Bank v. Norton (1852), 22 Conn. 214. But see 
Stuckert v. Anderson (1887), 3 Whart. (Pa.) 116. 

2Cf. Ltjsaght v. Bryant (1850), 19 L. J. C. P. at 160, Maule, J., and 
Art. 147, n.; Mechanics' Bank v. Bank (1843), 6 Met. (Mass.) 13. 

* Peacock v. Purcell (1863), 32 L. J. C. P. 266; Briggs v. Parsons 
(1878), 39 Mich. 400 ; Mauneyy. Coit (1879), 80 N. C. 300. 

^Ayrault v. Bank {19,12), 47 N. Y. 570 at 573 ; Allen v. Merchants' 
Bank (1839), 22 Wend. (N. Y.) 215 ; Reeves v. State Bank (1858), 8 0. 
St. 465 ; Bird v. Bank (1876), 93 U. S. 96. 

« Baldwin v. Bank (1846), 1 La. An. 13 ; Bowling Y. Arthur (1857), 
.34 Miss. 41 ; Of. Stacy v. Bank (I860), 12 Wis. 629. But cf. Gerhadt v. 
Sav. Inst. (1866), 38 Mo. 60, (bank liable for notary under bond to the 
bank). 

' Warren Bank v. Bank (1852), 10 Gush. (Mass.) 582 ; Bellemire v. 
/i«reifc (1838), 4 Whart. (Pa. (105 ; Daly v. Bank (1874), 56 Mo. 94 ; Stacy 
V. Bank, supra. 
11 



162 BILLS OF EXCHANGE. [aet. 165-66. 

prodS''^ Art. 165- The person who presents a bill for pay- 
ment must produce it, and must be ready and willing 
to deliver it up on receiving payment. •■• 

Note. — If the bill be lost a copy should be presented — ^but 
qu. aA to the sufficiency of this? A protest it seems can be 
made on a eopy.^ As to the parts of a set, see Arts. 37 and 29 

Explanation. — When the bill is not produced, but 
payment is refused on some other ground, the biU is 
deemed to have been duly presented.* 
At what place. Art. 166. When a bill is made payable at a partic- 
ular place by the drawer in his draft, or by the ac- 
ceptor in a general acceptance (Cf. Art. 39 (3) ), pre- 
sentment for payment must be made at that place.^ 

Illustrations. 

1. A. draws a bill on B. in Liverpool, payable in London. 
B. accepts it, payable at the " X. Bank," London. Present- 
ment must be made at the " X. Bank." Presentment to B. in 
Liverpool is not sufficient to charge the drawer.' 

2. A. draws a bill on B. residing in Boston. B. accepts it, 
payable at the " X. Bank " in Boston. This is a general ac- 
ceptance (Art. 39) ; but presentment at the " X. Bank " is 
necessary to charge the drawer and indorsers." 

Explanation 1. — When a bill is made payable at a 

> Cf. Hansard v. RoUnson (1827), 7^B. & C. at 94 ; Griffin v. Weather- 
hy (1868), 3 L. R. Q. B. at 760 ; Musson v. LaJee (1845), 4 How. (U. S.) 
262 ; Arnold v. Dresser (1864), 8 Allen (Masa.), 435 ; Art. 206. 

^Dehers v. Harriott (1691), 1 Show. 163; PotMer, No. 145; Brooks' 
Notary, 4 ed. pp. 137, 217. Presentment by copy and tendering a hond 
of indemnity, valid, Lane v. Bank (1872), 9 Heisk. (Tenn.) 419. 

' Gilbert v. Dennis (1842), .3 Met. (Mass.) 495 : King v. Crowell (1873), 
61 Me. 244. 

* Gibb V. Mather (1832), 2 Cr. & J. 254 at 262, Ex. Ch.; Bank of U. S. 
V. Smith (1826), 11 Wheal. (U. S.) 171. Cf. Boydell v. Harhness (1846), 
3 C. B. at 171 ; German Exchange Law, Art. 48. Contra, Fuller v. 
Dingman (1875), 41 la. 506. 

» Gibh V. Mather (1832), 2 Cr. & J. 254, Ex. Ch.; Shaw v. Reed (1831), 
12 Pick. (Mass.) 132. • Contra, Mason v. Franklin (1808), 3 Johns. {H. 
Y.) 202. 

^Troy Bank v. Laiiman (1859), 19 N. T. 477; GS.' Saul v. Jones 
(1858), 28 L. J. Q. B. 37. 



ABT. 167.] DUTIES OF THE HOLDER. 163 

bank in a town where there is a clearing-hLOUse,pre-'*^twiiatpiace. 

sentment through the clearing-house is (probably) a 

sufficient presentment at that bank.^ 

Explanation 2. — When a bill of exchange contains 

the address of the drawee, and no place of payment is 

specified, it is payable at such address.^ 

Note. — Presentment may be made at such address, but it 
does not seem to be decided that it must be made there. See 
next note. Dating a note .at a certain place does not make it 
payable there, but it is only primd facie evidence of the place 
of payment.' And presentment for payment at place of date 
is insufficient, if the place of business or residence of the maker 
can be ascertained on due inquiry.* 

Art. 167. When a place of payment is designated to whom pre- 

^ 11 sentment must 

by a bill, presentment for payment af that place is a'^®'"*'^^- 
sufficient presentment to the drawee or acceptor with- 
out any further demand.^ 

Explanation 1. — It is the duty of th.e payor to see 
that the money is ready at the place where the bill is 
payable, and that there is some person there with 
authority to hand over the money in exchange for the 
bill.« 

IliLITSTEATIONS. 

1. B. makes a note payable at his house in Maidstone and 
at the " X. Bank," London. Presentment at either place is 
sufficient.' 

^Reynolds v. Chettle (1811), 2 Camp. 695 ; Harris -v. Parker (1833), 3 
Tyr. 370. 

'Hine v. Allely (1833), 1 N. & M. 433 ; Bitxton v. Jones (1840), 1 M. 
& Gr. 83 ; Cox v. Nat. Banh (1879). 100 U. S. 704. 

'BlodgeUY. Durgin (1859), 32 Vt. 361 ; Cf. ChildsY. Laflin (1870), 55 
111. at 160. 

" Taylor T. Sm/der (1846), 3 Den. (N. T.) 145 ; Hartford Banh v. 
Green (1861), 11 la. 476. 

^De Bergareche v. PiUin (1826), 3 Bing. 476 ; Wilmot v. Williams 
(1844), 7 M. & Gr. 1017 ; Lawrence v. Dobyns (1860), 30 Mo. 196 ; Cf. 
Butterworth, v. Le Despencer (1814), 3 M. & S. 149. 

''Brown v. McDermott (1805), 6 Esp. 265 ; Buxton v. Jones (1840), 1 
M. & Gr. at 86. 

'Beeching v. Gower (1816), Holt, N. P. C. 2,1^ -.Qi. Pollard v. Herries 



164 BILLS OF EXCHANGE. [aet. 167. 

To whom pre- 3. B. accepts a bill " payable at No. 1, X. Street, London." 
be made. B. dies. Presentment at 1, X. Street, is sufficient, without 

making search for B.'s executor.' 

3. Bill addressed to " Mr. B., No. 1, X. Street, London." 
B. accepts it generally. It is presented at No. 1, X. Street, 
and the house is found shut up. This is sufficient.^ 

4. Bill addressed to " Mr. B., No. 1, X. Street, London." 
B. accepts it generally. The holder takes the bill to No. 1, X. 
Street, and inquires for B. A woman living in the hpuse- in- 
forms him that B. has left. This is sufficient.' 

5. B. accepts a bill payable at the " X. Bank." At matur- 
ity the "X. Bank" hold the bill, but B. has' no assets 
there. This is sufficient. No presentment to B. personally is 
necessary.* But the mere physical presence of the bill in the 
bank without the knowledge of its officers, would be insuf- 
ficient.* 

6. B. makes a note " payable at Chicago." If B. has no 
place of business or residence in Chicago, the presence of the 
holder with the note on day of maturity anywhere in Chicago 
will constitute due presentment.' 

Mcplanation 2. — When no place of payment isdes- 
ignated by a bill, presentment for payment sbould be 
made to the drawee or acceptor at his place of busi- 
ness or residence.' 

Explanation 3. — ^When presentment for payment 
of a bill payable generally is made at an improper 
place, but payment is refused on some otber ground, 
the bill is deemed to bave been duly presented. 

(1803), 3 B. & P. 335 ; Maiden Bank v. Baldwin (1859), 13 Gray (Mass.), 
154 ; Allen v. Avery (1859), 47 Me. 287. 

^Philpot V. Bryant (1827), 3 C. & P. 244. 

^Hine v. Allely (1833), 4 B. & Ad. 624 ; Struthers v. Kendall (1861), 
41 Pa. St. 214; Cf. Cox v. Nat. Bank (1879), 100 U. S. 704. 

'Buicion V. Jones (1840), 1 M. & Gr. 83. 

* Bailey v. Porter (1845), 14 M. & W. 44; North Bank v. Albott 
(1833), 13 Pick. (Mass.) 465; Suffaher v. Bank (1878), 13 Bush (Ky.), 
644. 

' ChicopeeBank v. Philadelphia Bank (1869), 8 Wall. (U. S.) 641. 

^ Meyer v. Hibsher (1872), 47 N. T. 265. 

' Cf. Mitchell V. Baring (1829), 10 B. & C. at 9 ; Barnes v. Vaughm 
(1859), 6 R.I. 259. 



AET. 167.] DUTIES OF THE HOLDER. 165 

Illustration. to whom 

presentment 
0., the holder of a note specifying no place of payment,™"* *""' ®" 
meets B., the maker, on the street on day of maturity, and pre- 
sents it for payment. B. merely says he is unable to pay it, 
and raises no objection to the place of the demand. This is 
(probably) due presentment.' 

NoTB. — The law on this point is not clearly settled, but the 
test question in all cases is this — Has due diligence been used 
in making the demand for payment? If the bill is payable 
generally, the place where the presentment is made to the ac- 
ceptor himself is, within the limits of Expl. 3, immaterial. But 
when demand on the acceptor personally is not made, the 
question is, not where it must be made, but at what place pre- 
sentment for payment is sufficient, and excuses the holder from 
further inquiry. Three rules may be laid down. (1.) If the 
acceptor has, at the time the bill matures,^ an established place 
of business, presentment there at the proper hour is sufficient, 
though the place is found closed.^ (3.) If the acceptor has 
no place of business, or it cannot be found on due inquirj', pre- 
sentment at the then residence of the acceptor at a proper hour 
is sufficient, and no further search need be made.* (3.) But 
if the acceptor has removed into another state or country from 
that in which he resided at the execution of the bill, present- 
ment at his former residence or place of business will be suf- 
ficient.* By some authorities, presentment is dispensed with 
in such case." If he has only removed to another locality in 
the same state or country, presentment must be made in ac- 
cordance with rule (1) and (2).' German Exchange Law, Art. 
91, provides that when a bill is not payable at a particular place 
it must be presented for payment at the office of the drawee if 

■ Cf. King v. Crowell (1873), 61 Me. 244 ; King v. Holmes (1849), 11 
Pa. St. 456 ; Arts. 163, 165. 

2 aranite Bank v. Ayers (1835), 16 Pick. (Mass.) 392 : Talbot v. Bank 
(1880), 129 Mass. 

' fVest V. Brown (1856), 6 0. St. 542 ; Cf. Bank v. Mvdgett (1870), 44 
N. Y. 514 ; Sussex Bank v. Baldwin (1840), 2 Harrison (N. J.) 487 • 
Wallace v. Crillet/ (1879), 46 Wis. 577. 

*Bank v. Orvis (1876), 42 la. 691 ; Packard v. Lyon (1855), 5 Duer 
(N. YX 82 ; Brooks v. Blanetj (1873), 62 Me. 456 ; Chard v. Fox (1849), 
14 Q. B. 230. ' 

= M'Gruder v. Bank (1824), 9 Wheat. (U. S.) 598, and TayUr v. Sny- 
der (1846), 3 Tr>»n. (N. Y.) 145 ; Grafton Bank v. Cox (1859), 13 Gray 
(Mass.), 503 ; H rrigk v. Baldwin (1871), 17 Minn. 209. 

« Foster v. Ju ien (1861), 24 N. Y. 28 ; Gist v. Liilrand (1828), 3 
808. Contra, H^heeler v. Field (1843), 6 Met. (Mass.) 290. 

''Andersons. Drake (1817), 14 Johns. (N. Y.), 114: Cf. Beidy. Mor- 
rison (1841), 2 Watts & S. (Pa.) 401. 



166 BILLS OF EXCHANGE. [aet. 168. 

To whom pre- he have One, Or if not at his residence. If his office and resi- 
bemade! "'"^' dence are unknown, inquiry is to be made of the police, and 
the fact that search has been made for him is to be recorded, in 
the protest. New York Draft Code, § 1748, provides that a 
negotiable instrument must be presented to the principal debt- 
or if he can be found at the place where presentment should be 
made ; if not, it must be presented to some other person of 
discretion, if one can be found there; and if not, then it must 
be presented to a notary public within the state. If the in- 
strument does not specify a place of payment, it must be pre- 
sented at the place of business or residence of the principal 
debtor, or wherever he may be found, at the option of the pre- 
senter. 

Explanation 4. — When a bill is addressed to, or 
accepted by two or more persons, who are not part- 
ners, and no place of payment is designated, present- 
ment for payment must be made to tbem all.-"- 

Explanation 5. — Wben the drawee or acceptor of 
a bill is dead, and no place of payment is designated, 
presentment for payment must be made to his execu- 
tors or administrators, if they can be found,^ 
non-"present- -^^^- ^^^' Presentment for payment is dispensed 
with — 

(1.) When the drawee is a fictitious person,^ or 
(perhaps) a person not having capacity to con- 
tract.* 
(2.) As regards the drawer or an indorser, when 
such drawer or indorser is, as between the 
parties to the bill, the principal debtor, and 

• Union Bank v. Willis (1844), 8 Met. (Mass.) 504 ; Blake r. McMilUn 
(1871), 33 la. 150 ; Cf. Gates v. Beeche.r (1875), 60 N. Y. 518, as to ex- 
partners. Contra, Harris v. Clark (1840), 10 0. 5. 

- Gower v. Moore (1845), 27 Me. 16 ; Frayzer v. Dameron (1878), 6 
Mo. Ap. 153 ; Cf. Caunt\. Thompson (1849)," 7 C. B. 400 ; Bi/hs, p. '205; 
Trench Code, Art. 163. But see Hale v. Burr (1815), 17 Mass. 86 ; 
Laiidry v. Stansburij (1830), 10 L'b. 4S4, holding demand excused if 
administrator exempt from suit at the time. 

3 Smith V. Bellamji (1817), 2 Stark. 2-33 ; Cf. Art. 2. 

*Byles, p. 187 ; Chitty, p. 202 ; Parsons, I, p. 444, sed qu 9 Wyman 
V. Aiams (1853), 12 Gush. (Mass.) 210. 



merit 



AET. 168.] DUTIES OF THE HOLDER. 167 

has no reason to expect that the "bill would be ^J™p\^aenV 
paid if presented to the drawee or acceptor.^™®"'- 
Cf. Art. 200. 

Illustkations. 

1. A. draws a bill on B. payable to his own order, and in- 
dorses it. B. accepts it to accommodate A. 0. also indorses 
it to accommodate A. A. discounts it with D. A. does not 
provide B. with any funds to pay it. Presentment is not neces- 
sary to charge A.,^ but is necessary to charge C 

2. A. draws a check on the "B. Bank," not having sufficient 
funds there to meet it, and having no reason to expect that it 
will be honored. Presentment is not necessary to charge A.* 

Note. — As regards this excuse, presentment for payment 
and notice of dishonor are said, in 2Wry v. ParJcer, to rest on 
the same grounds. As to French Law, see Art. 160, n. 

(3.) As regards the drawer or an indorser, when 
such drawer or indorser has received such an 
assignment of the property of the acceptor as 
will dispense with notice of dishonor; Art. 
200, CI. (5.) 

(4.) When no place of payment is designated and 
the acceptor absconds before maturity,^ 

(5.) When, after the exercise of reasonable dili- 
gence, presentment cannot be effected. Cf. 
Art. 200. 

Explanation. — The fact that the holder has reason 
to believe that the bill will, on presentation, be dis- 

'Cf. Turner v. Samson (1876), 2 L. E. Q. B. D. 23, C. A.; PotKier, 
No. 157. 

2 Terry v. Parker (1837), 6 A. & E. 502 ; Cf. Shriner v. Keller (1855), 
25 Pa. St. 61. 

' Saul V. Jones (1858), 28 L. J. Q. B. 37 ; French v. Bank (1807), 4 
Cranch (U. S.), 141. 

■* Wi7-th V. Austin (1875), 10 L. R. C. P. 689 ; Cf. Shaffer v. Maddox 
(1879), 9 Neb. 205 ; MoUey v. CUrk (1858), 28 Barb. (N. T.) 390 ; Miser. 
V. Trovinger (1857), 7 0. St. 281. 

^Lehman v. Jones (1841), 1 W. & S. (Pa.) 126 ; Cf. Spies v. Gihnore 
(1848), 1 N. Y. at 826. Aliter, if a specified place of payment, Sands v. 



168 BILLS OF EXCHANGE. [ART. 168. 

Excuses for. honored, does hot dispense with the necessity forpre- 

non-preseiit- ' ■*■ • ■"■ 

"^"*- sentment.^ 

Illustbations. 

] . Bill drawn on B. is accepted by an agent. At the time 
the bill matures B. is abroad. This is no excuse, presentment 
should be made to the agent." 

3. B. makes a note "payable at Guildford." B. has no resi- 
dence there. The note is presented at two banks, and then 
treated as dishonored. This is sufficient.' 

3. The drawer of a bill orders the drawee not to pay it. 
The holder hears of this. Presentment is not dispensed with.* 

4. The acceptor of a bill informs the holder that he cannot, 
or will not, pay it when due. Presentment is not dispensed with.' 

6. The acceptor of a bill becomes bankrupt before it ma- 
tures. ' Presentment is not excused ; it should be made to the 
acceptor.' 

(6.) By waiver, exjiress or implied.'' 
Explanation 1. — Waiver of notice of dishonor does 

not include a waiver of presentment for payment.* 
Explanation 2. — A waiver of protest includes a 

waiver of presentment for payment.* 

Clarke (1849), 19 L. J. C. P. 84. Contra, in any case. Pierce y. Cafe 
(1853), 13 Cush. (Mass.) 190. 

1 Cf. Pothier, No. 144-147 ; Be East of Eng. Co. (1868), 4 L. E. Ch. 
at 18. 

'Phillips V. Astling (1809), 2 Taunt. 206. 

^ Hardy v. Woodroffe (1818), 2 Stark. 319. 

"Hill V. Heap (1823), D. & R. N. P. C. 57 ; Cf. NichoUon v. GoutUt 
(1796), 2 H. Bl. 609. Contra, Ulley v. Miller (1820), 2 N. & MoC. (S. 
C. 257. 

^Ba.ker v. Bireh (1811), 3 Camp. 107; Exparte Bigiiold (1836), 1 
Deao. 712. Sedqu? 

"Esdaile v. Sowerby (1809), 11 East, at 117 ; HoweY. Bowes (1813), 5 
Taunt. 80 Ex. Ch.; Bartons. Baker (1815), 1 S. & R. (Pa.) 334 ; How- 
ard Bank v. Carson (1878), 30 Md. 18 ; Pothier, No. 147. 

'Hopley V. Dufresne (1812). 15 East, 275 ; Rindge y. iTrnfta?? (1878), 
124 Mass. 209 ; Pollard v. Bmven (1877), 57 Ind. 322 ; Knapp v. Run- 
als (1875). 37 Wis. 1-35 ; Givens v. Bank (1877), 85 lU. 442 : (X Exparte 
Bignold{18m),lBeae.a,tm. 

' Hill Y. Heap (1823), D. & R. N. P. C. 57 ; Berkshire Bank v. Jones 
(1810), 6 Mass. 524 ; Voorhies y. Atlee (1870), 29 la. 49. Contra, Mat- 
they Y.. Golly (1854), 4 Cal. 62 ; Cf. Art. 200. 

^Harvey v. Nelson (1879), 31 La. An. 434; Coddinqton v. Davis 
(1848), 1 N. Y. 186 ; Hood v. Hallenbeck (1876), 7 Hun. (N. Y.) at 364. 



AET. 169.] DUTIES OF THE HOLDER. 169 

NoTK. — As Jo waivers in the bill or indorsement, see Art. Excusea for 
131. The rules on this point concerning what amounts to a J^e'iit!'^^^'^'' 
waiver, time when it may be made, etc., apply equally to waiv- ■> 
ers of notice of dishonor, treated more fully, post, Art. 200, (7). 
German Exchange Law, Art. 43, provides that when the draw- 
er or indorser inserts the term " protest waived," presentment 
for payment is not waived thereby, but it lies on such drawer 
or indorser to prove that the bill has not been duly presented. 

Art. 169. Delay in makinar presentment for pay- focuses for 

•I or r J delay m pre- 

ment is excused when such delay is caused by circ.um- ^®"'°'®°'" 
stances beyond the control of the holder, .and not im- 
putable to his negligence.-'- Cf. Art. 201. 

Illttstbations. 

1. The holder of a bill dies suddenly just before it matures. 
The circumstances may be such as to excuse delay." 

3. Bill drawn in England, payable in Leghorn. At the time 
the bill matures Leghorn is besieged. The holder is not in 
Leghorn. This excuses delay .^ 

3. Bill presented for payment by post. It is sent off in time 
to reach the drawee on the day of maturity, but by mistake of 
the post-office is delayed some days. The delay is excused.* 

4. Bill drawn in England, payable in Paris. By a French 
moratory law, passed in consequence of war, the maturity of 
bills payable in Paris is postponed three months. The delay 
in making presentment is excused.^ 

Explanation. — When the cause of delay ceases to 
operate, presentment for payment must be made with 
reasonable diligence.® Cf. Art. 201. 

Note. — The cases do not clearly distinguish between ex- 

1 Windham Bank v. Norton (1852), 22 Conn. 214 ; Pothier, No. 144 • 
Nouguier, §§ 1107-1108 ; Story, § 327 ; Cf. Rothschild y. Currie (1841), 
1 Q. B. at 47. 

2 White V. Stoddard (1858), 11 Gray (Mass.), 258 ; Pothier, No. 144. 

3 Patience v. Townley (1805), 2 J. P. Smith, 223 ; Dunbar v. Tyler 
(1871), 44 Miss. 1. 

* Windham Bank v. Norton (1852), 22 Conn. 214 ; Cf. Art. 201. 

= Roufiiiette v. Overman (1875), 10 L. R. Q. B. 525. 

''Dimbar v. Tyler (1870), 44 Miss. 1 ; Peters v. Hohbs (1867), 25 Aik. 



170 



BILLS OF EXCHANGE. 



[ART. 170-72. 



Excuses for, 
delay In pre- 
sentment. 



Dishonor by 
non-payment. 



Consequence 
of dishonor. 



cuses for non -presentment and excuses for delay in present- 
ment, but surely when the question is one of reasonable dili- 
gence the distinction is an important one.' 

Art. 170. A bill is said to be dishonored by non- 
payment — (a) wben it is duly presented for payment, 
and payment is refused or cannot be obtained ; ^ or 
{b), wben presentment for payment is excused, and 
the bill is overdue and unpaid. 

Art. 171. Subject to Art. 184 the holder of a bill 
whicb is dishonored by non-payment acquires an 
immediate right of recourse against all antecedent 
parties, provided hie take tbe necessary proceedings on 
dishonor.* 

Note, — ^As to when the holder's right of action accrues 
against an indorser, see Art. 352, Expl. 'Z, note. 



Presentment for Payment to 

Maker. 



Charge Acceptor or 



Presentment to Art. 172. When a Mil is payable generally (Art. 
ceptor. 38) presentment for payment is not requisite in order 

to charge the acceptor.* 

Note. — The reason is that at common law the debtor is 
bound to seek out his creditor to pay him." The practical im- 
portance of the rule is that the acceptor cannot avail hi inself of 
amy informality in the presentment. No one would be likely 
to bring an action without first applying for payment. 

Explanation 1. — When a bill is payable at a par- 

' Of. Allen V. Edmundson (1848), 2 Exch. at 724, notice of dishonor. 

^Cf. MelUsh V. Simeon (1794), 2 H. Bl. 378 ; Butterworth v. Despeucer 
(1814), 3 M. & S. 150. 

'Ex parte Moline (1812), 1 Rose, 303 ; Siggers v. Lewis (1834), C. M. 
& R. 370. ■ 

*Rowe V. Young (1820), 2 Bligh. H. L. at 467-468, Baijle^, J. 

» Cranlen v. HiUari/ (1812), 2 M. & S. 120 j Walton v. Mascall (1844), 
13 M. & W. at 458, Parke, B. i 



AET. 172.] DUTIES OF THE HOLDER. 171 

ticular place, no presentment is necessary to charge ^^|f 2^^"^* '° 
the acceptor.^ ''^i""'- 

Tllusteation. 

B. makes a note payable at the "X. Bank." The holder can 
maintain suit against B. without first presenting the note for 
payment ; ^ but if B. show that he was ready to pay on day of 
maturity at the place named, it is a defense against any claim 
for interest, damages or costs since maturity, certainly if the 
sum due is deposited in court,' and if damaged he is discharged 
jOfo tanto.* 

Note. — The law is now uniform in America in holding de- 
mand at the place named not a condition precedent to the ac- 
ceptor's or maker's liability,' but the contrary doctrine finally 
prevailed in England, and gave rise to a statute bringing bills 
of exchange into conformity with the American doctrine, but 
leaving promissory notes still subject to the rules of the com- 
mon law in England." 

Explanation 2.- — The acceptor may, by the terms 
of a qualified acceptance (Art. 39), make present- 
ment for payment a condition precedent to his lia- 
bility.^ 

IlXUSTEATION. 

B. accepts a bill payable at the "X. Dank only, and not else- 

» Wallace v. M'Connell (1839), 13 Pet. (U. S.) 136 ; Teaton v. Sumey 
(1871), 62 lU. 62 ; mils v. Place (1872), 48 N. Y. 520 ; Howard v. Boor- 
man (1863), 17 Wis. 459 ; Maiden Bank v. Baldwin (1859), 13 Gray 
(Mass.), 154. The law in England as to bills of exchange by statute, 1 
& 2 Geo. 4, c. 78 ; contra, at common law, Eowe v. Young (1820), 2 Brod. 
& B. 165. 

2 Id. Contra in England, Bowes v. Howe (1813), 5 Taunt. 30, Ex. Ch.; 
Spindler v. Grellett (1847), 1 Exch. 384 ; unless place of paymentis mere 
memorandum at the foot of the note. Price t. Mitchell (1815), 4 Camp. 
200 ; Exon^. Russell fl816), 4 M. & S.'507. 

'Mahan v. Waters (1875), 60 Mo. 167 ; Teaton v. Burney, supra. 

* Lazier v. Horan (1880), probably 53 la. (N. W. R. v. 7 p. 493.) 

' Except bank notes on demand. Bank of N. C. v. Bank (1851), 13 
Ired. L. (N. C.) 75 ; Dougherty v. Bank (1853), 13 Ga. 288. Contra, 
Haxton v. Bishop (1829), 3 Wend. (N. Y.) 13 ; Montgomery v. Elliott 
(1844), 6 Ala. 701. 

s Of. Gihb V. Mather (1832), 2 Or. & J. at 262, 263 ; Embliny. Dartnell 
(1844), 12 M. & W. 840. 

' Rowe V. Young (1820), 2 Bligh. 391, H. L., as modified by 1 & 2 Geo. 
4, 0. 78. 



172 



BILLS OF EXCHANGE. 



[aet. 173. 



Presentment to where." The holder must present it for payment at the X. 
ceptor. bank before he can sue B.' 

Note. — Neither a bill or note can be drawn conditionally 
(Art. 10). Hence it would seem that any words which made a 
demand a condition to liability, would render the instrument 
invalid as a bill or note. If a note is payable "on demand," 
or " on presentation at the X. Bank," the hoider may recover 
without proving demand.^ But demand has been held neces- 
sary before suing the maker of a note running, " On demand I 
promise to pay C. or order at sight," ' and where maker prom- 
ised to pay " on demand five months after date at the X. 
Bank."* 

Explanation 3. — When by the terms of an accept- 
ance presentment is required, tlie acceptor, in tlie ab- 
sence of express stipulation, is not discharged by the 
mere omission to present tbe bill for payment on the 
day it matures,* 

Note. — When a bill is accepted payable at a particular place 
and there only, the acceptor's position is analogous to that of 
the drawer of a clieck." If, then, he could show that he was 
damnified by the holder's negligence in omitting to present, he 
would probably be discharged. Cf. Art. 258. 



Presentment for Payment to charge Stranger to Bill. 

Guarantor. Art. 173. Presentment for payment is not a con- 

dition precedent to the liability of a person who has 
given a guarantee for the payment of a bill by the 
acceptor.'' 

1 Halstead v. Shelton (1843), 5 Q. B. at 93, 94, Ex. Ch. 

■^Norton v. Ellam (1837), 2 M. & W. at 464: Warner v. Iron, Co. 
(1878), 3 Woods (C. Ct.) 514; Cf. Dodd v. GiJ, (1862), 8 F. & F. 261 ; 
New Hope Co. v. Perry (1850), 11 III. 467. 

^ Dixon V. Nuttal (1834), 1 Or. M. & R. 307. 

^ Cf. Armistead v. Armistead (1839), 10 Leigh (Va.),-at 523 ; Wallace 
V. M'Connell (1839), 13 Pet. (U. S.) at 147. Contra, Gammon v. Everett 
(1845), 25 Me. 66'. 

'Smith V. Vertue (1860), 30 L. J. C. P. 56 at 59 ; see per Keating, J., ' 
at 60, lis to aoeeptance to pay at a particular place. 

'Bishop V. Chittf/ (1742), 2 Stra. 1195; Eamchum v. Badakissen 
(1854), 9 Moore P. C. at 70, Parke, B. 

' Walton V. Mascall (1844), 13 M. & W. 452 ; Nouguier, § 1192 ; Cf. 



AET. 174-76.] DUTIES OF THE HOLDER. 173 

Note. — The reason is that presentment is flot necessary to Guarantor, 
charge the acceptor or maker (Art. 173). If the drawer were 
the party guaranteed, presentment would be necessary. The 
necessity of presentnient and the necessity of notice, to charge 
a guarantor, resting on the same ground, the conflict of author- 
ities is noted, post, Art. 204. 

Art. 174. A person who is not a party to a bill, ^J';^°°g?|f^^'® 
but who is liable on the consideration for which it is*'°°- 
given, is discharged by the holder's omission to pre- 
sent it for payment.'^ 

^Explanation. — The same diligence is not requisite 
in this case as is necessary to charge a party to the 
instrument. It is sufl&cient that the holder does what 
is reasonable to obtain payment.^ 



Noting and Protest. 

Art. 175. " Noting " means a minute made by a Noting de- 
notary public on a dishonored bill at the time of its 
dishonor. 

Note. — The " noting " consists of the notary's initials, the 
date, and the amount of the noting charges, and sometimes a 
statement of the cause of dishonor — e.g., " no effects," or " no 
advice," or "no account." The noting is usually made on a 
ticket attached to the bill.' 

Art. 176. "Protest" means a formal notarial cer- protest defined, 
tificate attesting the dishonor of a bill. 

Note. — Form, <Sbc. — See the term " notarial act " defined, 
Art. 45, n. The protest should contain (1) An exact copy of 

Hitchcock V. Humphrey (1843), 5 M. & Gr. 559 ; Gage v. Lewis (1873), 
68 III. 605 ; Greene v. Thompson (1871), 33 la. 293. 

^Andertonx. Beck (1812), 16 East, 248 ; Hopkins v. Ware (1869), 4 
L. R. Ex. 268 ; Of. Straker v. Graham (1839), 4 M. & W. 721, present- 
ment for acceptance. 

^SandK V. Clarlu (1849), 8 C. B. at 761, Mauls, J.; Smith v. JV. s. 
Wales Bank (1872), 8 Moore P. C. N. S. at 461^63, Meljish, L. J. See 
e.g., Rohson v. Oliver (1847), 10 Q. B. 704, at 717. 

'^Brooks' Notary, 4th ed. p. 80 ; and forms, p. 213. 



174 ■ BILLS OF EXCHANGE. [aet. 177-78. 

Protest defined, the bill, Or the bill itself annexed. (3) A statement of the par- 
ties for whom and against -whom the bill is protested. (3) The 
date of protesting and the place where protest is made. (4) A 
statement that acceptance or payment >vas demanded by. the 
notary ; the terms of the answer, if any ; or a statement that 
no answer was given, or that the drawee or acceptor could not 
be found. (5) A reservation of rights against the parties liable. 
(6) The subscription and seal of the notary making the pro- 
test.' A protest may be in duplicate or triplicate.^ 

py whom pro- Art. 177. The protest must be made by a notary 

test to be made. ^ '- u j 

public or other person authorized to act as such.* 

Note. — When the services of a notary cannot be obtained 
at the place where a bill is dishonored, it is said that a protest 
may be made by any respectable inhabitant in the presence of 
two witnesses.* In England the preliminary presentment of 
the bill to the drawee or acceptor is usually made by the nota- 
ry's clerk.^ In America, a protest founded on such a present- 
ment is invalid, unless authorized by statute or usage." But 
the certificate of protest may be signed by a clerk if author- 
ized.' 

Time for Art. 178. A foreign bill of exchange should be 

noted for protest on the day that it is dishonored.* 

Explanation. — When a bill has been duly noted, 
the formal protest may be extended at any time.* 

Note. — In practice foreign bills are frequently not noted till 
the day after their dishonor.'" And it is conceived that if the 

' See Brooks' Notary, 4t]i ed. p. 82 ; and for forms, see pp. 214-219 ; 
Cf. French. Code, Art. 173 ; German Exchange Law, Art. 88. 

^Brooks' Notary, 4th ed. p. 82 ; Cf. Geralopulo y. Wieler (1851), 20 
L. J. C. P. 105. 

' Byles, p. 60 ; Cf. German Exchange Law, Art. 87 ; French Code, 
Art. 173. 

"Cf. Burhe v. McKay (1844), 2 How. (17. S.) 66 : Byles, p. 260 ; and 
Cf. 9&10WiU. 3, c. 17, §1. 

. ' Brooks' Notary, 4th ed. pp. 78 and 138 and Thomson, p. 310, as to 
Scotland. 

' Commercial Bank v. Varnum (1872), 49 N. T. 269 ; Cribbs v. Adams 
(1859), 13 Gray (Mass.), 597 ; Art. 57. 

''.Fulton V. Maccracken (1862), 18 Md. 528. 

8 Tassel v. Lewis (1699), Ld. Raym. 743 ; Cf. Leftley v. Mills (1791), 
4 T. R. at 174. 

^Oeralopulo v. Wieler, supra; Bailey v. Dozier (1848),- 6 How(U. S.), 
23 ; Cf. Dennistoun v. Stetvart (1854), 17 How (TJ. S.), at 607, after suit 
begun ; Leftley v. Mills, supra. 

^0 Brooks' Notary, 4th ed. p. 80. 



AET. 179-81.] DUTIES OF THE HOLDER. 175 

bill has been duly presented this is sufficient. Under 9 & 10 Time for 
Will. 3, c. 17, inland bills (payable after date) are to be pro- P™**"- 
tested on the day following their maturity ; but this act has 
always been regarded as permissive, and inland bills are usually 
noted on the day that they are dishonored. By French Code, 
Art. 163, a bill is to be protested for non-payment on the day 
after it is due. By German Exchange Law, Art. 41, a dishon- 
ored bill may be protested for non-payment on the day it is due, 
and it must not be protested later than the second day after. 
See the laws of different nations on the point collected : 17'ou- 
guier, § 1270. 

Art. 179. A bill must be protested at the place where pro- 

■>■ '■ test to be made 

where it is dishonored,-^ 

Note. — When a bill of exchange, drawn payable at a place 
other than the residence of the drawee, is dishonored by non- 
acceptance, by a statute in England which is perhaps only de- 
claratory of the common law, protest for non-payment may be 
made at either the place of residence or the place of pay- 
ment.^ 

Art. 180. When laws conflict, the validity of a conflict of 

laws. 

protest is determined by the law of the place where it 
is made.* 



Protest to charge Drawer and Indorsers. 
Art. 1 81. When a foreign bill of exchansre * is dig- Protest--ivhen 

o o necessary. 

honored it must be duly protested for non-acceptance 
or non-payment, as the case may be, in order that the 
holder may preserve his right of recourse against the 
drawer and indorsers.* 

Explanation 1. — When a bill of exchange is dis- 

iCf. Mitcliell V. Baring (1829), 10 B. & C. 4 ; French Code, Art. 173. 

2 2 & 3 WiU. 4, c. 98 (1832) ; Daniel, § 985. 

' Rothschild v. Currie (1841), 1 Q. B. 43 ; Rouquette v. Oi'erman 
(1875), 10 L. B. Q. B. 525 ; Carter r. Burley (1838), 9 N. H. 558 ; 
Thomson, p. 308 ; Fothier, No. 155 ; Nouguier, § 1270 ; Cf. Art. 202. 

■* Art. 24, foreign bill defined. 

' Gale V. Walsh (1793), 5 T. R. 239 ; Ocean Bank v. Williams (1869), 
102 Mass. 141 ; Cf. Whitehead v. Walker (1842), 9 M. & W. 506 ; Ex 
■parte Lowenthal (1874), 9 L. R. Ch. at 693. 



176 , BILLS OF EXCHANGE. [art. 182. 

Protest-when honoped Ibv non-acceptance, and the holder, without 

necessary. J r ' ' 

lawful excuse, omits to protest it, the drawer and in- 
dorsers are discharged as regards such holder, and all 
subsequent holders, with notice that the bill has been 
so dishonored ; but the drawer and indorsers are not 
discharged as regards a subsequent holder for value 
who takes the bill before it is overdue, and without 
notice that it has been dishonored.^ 

Ex'planation 2. — When a bill of exchange has been 
dishonored by non-acceptance, and duly protested, 
there may be a subsequent protest for non-payment 
at maturity.^ 

Note. — Qu. if such subsequetlt protest is not necessary in 
some cases, at any rate for the purpose of recourse abroad? 
See, too, Art. 185. As before pointed out (Art. 157, n.) under 
the Continental Codes, no right of action arises on non-accept- 
ance ; the holder can demand security from the antecedent 
parties, but he is bound to re-present the bill at maturity. A 
foreign note need not be protested,' nor need an inland bill or 
note ;* nor a "foreign" check.' Statutes, however, have been 
passed in many states allowing a protest on such instruments, 
and giving to it the like eifect as in case of foreign bills of ex- 
change. 

Excuses for Art. 182. Protest is dispensed with by circum- 

non-protest ■*■ "^ 

^ud delay. gtances which would dispense with notice of dishonor 
in the case of an inland bill ; and delay in protesting 
is excused by circumstances which would excuse de- 
lay in giving notice of dishonor.® 

1 Cf. Dunn V. O'Keefe (1816), 5 M. & S. 282, Ex. Ch.; and Art. 191. 

^Campbell v. French (1796), 6 T. R. at 211-212, Ex. Ch.; Cf. White- 
head V. Walker (1842), 9 M. & W. at 516. 

3 Bonar v. Mitchell (1850), 5 Exch. 415 at 417 ; Burke v. McKay 
(1844), 2 How. (U. S.) 66. 

■> Windle V. Andrews (1819), 2 B. & Aid. 696 ; Knott v. Venalle (1868), 
42 Ala. 186 ; Smith v. Curlee (1871), 59 HI. 221. 

^Pollard V. Bowen (1877), 57 Ind. 232. But see Daniel, § 1600. 

^Legge-j. Thorpe (1810), 12 East, 171 ; see e.g., Campbell v. Webster 
(1845), 15 L: J. C. P. 4, and Mayer's Appeal (1878), 87 Pa. St. 129, 
waiver ; Rothschild v. Currie (1841), 1 Q. B. at 47, delay. 



AET. 183-84.J DUTIES OF THE HOLDER. 177 

Note. — Protest is waived by a waiver of presentment for Excuses for 
payment.' As to notice of dishonor, see Arts. 300, 301 ; and and §elay! 
Cf. Arts. 168, 169 as to excuses for non-presentment for pay- 
ment, or delay in presentment ; see Art. 131 as to indorse- 
ments waiving protest, and Art. 165, n., as to protest of lost 
bill. 



Protest for Better Security. 

Art. 183. When the acceptor of a bill of exchange Better security, 
becomes bankrupt before its maturity, it may be pro- 
tested for better security.^ 

Note. — Under some of the-foreign codes, when the acceptor 
fails, security can be demanded ftom the drawer and in dors- 
era.' See, e.g., German Exchange Law, Art. 39. In England 
this cannot be done, and the only eifect here of such a protest 
is that there may be an acceptance suprhprotest (Art. 41). In 
France if the acceptor fails the bill may be at once treated as 
dishonored and protested for non-payment : French Code, Art. 
163, and Nouguier, § 1377. 



Presentment when there is a Reference in Need. 

Art. 184. When a bill of exchange is dishonored HoMefs duty 
by non-acceptance or by non-payment, and the drawer'" p'"^™'- 
of such bill has given a reference in case of need (Art. 
7), the holder must (perhaps) present the bill for ac- 
ceptance or payment supra protest in order to pre- 
serve his right of recourse against the drawer and in- 
dorsers.^ 

When the reference in case of need is given by an 
indorser, presentment for acceptance or payment supra 
protest is (probably) optional.* 

1 Jaccard v. Anderson (1865), 37 Mo. 91. 

2 Ex parte Wackerbath (1800), 5 Ves. Jr. 574 ; Daniel, § 530 ; Chitty, 
p 237 ; Brooks' Notary, 4th ed. p. 88 ; for a fonn, see p. 219. 

3 Pothier, No. 137, and the language of 6 & 7 Will. 4, c. 58 ; Cf. Arts. 

43 and 243. ' I 

J Cf. Leonard v. Wilson (1834), 2Cr. & M. 589 at 595, ajuA passim Ex 
'"I lie Prange (1865), 1 L. R. Eq. at 5. 



ITS BILLS OF EXCHANGE. [aet. 185-87. 

Holder's duty NoTB. — When a reference in need is given by the drawer, 
presen . presentment in accordance therewith seems to be part of the 
original contract. It is like the case of a bill drawn payable 
at the house of some person other thanthe drawee. Again, in 
the case of a foreign bill, how is the question affected by the 
fact that presentment is obligatory according to the law of tho 
place where the bill is drawn? By French Law, when a refer- 
ence in need is given by the drawer, the holder is bound to pre- 
sent, but when the reference is given by an indorser it seems 
he has an option : JSlouguier, § 249-350. By German Ex- 
change Law, Art. 62, presentment is in both cases obligatory. 

Duty to protest Art. 185. A bill of exchange must be duly pre- 
fer non-pay- o ./ 1 

meiit. sented for payment to the drawee or acceptor and 

noted or protested for non-payment before it is pre- 
sented for pay merit to the acceptor supra protest^' or 
referee in case of need.^ 

Note. — As to protest, see Arts. 175 to 180. If the holder 
omit to protest he cannot sue the acceptor suprh protest; on 
the other hand, if the case of need pays without a protest, he 
pays at his own risk.' As to acceptance suprd protest, see 
Arts. 41-48. 

Dishonor by. Art. 187. When E bill of exchange is dishonored 

acceptor supra '-' 

protest. \yj ^\yQ acceptor supra protest it must (probably) be 

again protested in' order to charge the other parties 
liable thereon.* 

^Hoarey. Cazenove (1812), 16 East, 391 ; Cf. Williams v. Germaine 
(1827), 7 B. & C. at 475-477; Baring v. Clark (1837), 19 Pick. (Mass.) 
220 ; German Exchange Law, Aj-ts. 62 and 88. 

^Geralopulo v. Wieler (1851), 20 L. J. C. P. 510 ; Cf. German Ex- 
change Law, Arts. 62 and 88. 

3Art.241. 

* cutty, p. 242 ; Nouguier, §§ 1320-1321. No English decision ; Cf. 
Williams v. Germaine (1827), 1 M. & Ry. 403 ; German Exchange Law, 
Arts 62 and 89 ; Brooks' Notary, 4th ed. p. 108. 



AET. 188-89.] DUTIES OF THE HOLDER. 179 



Notice of Dishonor to Charge Drawer and In- 

dorsers. 

Art. 188. "Notice of dislionor " means notifica-NoUee of dis- 
honor muJins 

tion of dislionor, i. e. formal notice.^ notihcatiuu. 

Explanation. — The fact that the drawer or indorser 

of a "bill knows that it has been dishonored, does not 

dispense with the necessity for giving him notice of 

dishonor.^ 

Note. — Pothier (No. .147), speaking of protests, lays down 
a similar rule : " la raison est que les formality 6tablies par leS 
lois pour donner k quelqu'un la connaissanoe de quelque fait, 
ne se suppl^ent point,'et ne s'aceomplissent pas par 6quippol- 
lenoe." As regards notes and inland bills, notice of dishonor 
is the English substitute for protest.' As regards foreign bills 
notice of dishonor is supplementary to protest. Under French 
Code, Arts. 165-166 (modified by law of May 3, 1863, of. 
ITouguier, §§ 1086-1099), and German Exchange Lawj Arts. 
45-47, notice of protest must be given within certain definite 
limits of time. See post, Art. 195. 

Art. 189. When a bill is dishonored,* due notice when neces- 
sary. 

of dishonor, unless excused, is a condition precedent 
to the liability of the drawer or any indorser thereof.^ 
Explanation. — Due notice of dishonor means no- 
tice given in accordance with Arts. 192 to 199. 

Illttsteation. 

Bill drawn by A. and indorsed by 0. is dishonored. Due no- 
tice is given to C, but none is given to A. The holder can 

1 Burgh v. Legge (1839), 5 M. & W. at 422, Alderson, B.; Carter v. 
Flower (1847), 16 M. & W. at 749, Parke, B. 

^Miers v. Brown (1843), 11 M. & W. 372 ; East v. Smith (1847), 16 L. 
J. Q. B. 292 ; Juniata Bank v. Hale (1827), 16 Serg. & R. (Pa.) 157; 
Lane v. Bank (1872), 9 Heisk. (Tenn.) 419 : Of. Gaunt v. Thomvson 
(1849), 18 L. J. C. P. 125. 

^Solarte v. Palmer (1888), 7 Bing. at 533. 

"Arts. 156 and 170. 

<■ Ben-klge v. Fitzgerald (1869), 4 L. R. Q. B. at 642 ; Rowe v. Tipper 
(1858), 22 L. J. C. P. at 137, Maule, J. 



180 BILLS OF EXCHANGE. [aet. 190-91. 

Wheiineces- Sue C, but he cannot sue A.j'nor has Cany remedy over 
^^' against A.^ 

Note. — The holder's duty is fulfilled by giving notice to the 
parties he intends to look to. If they in turn give notice to 
other parties, he may take advantage of it ; but their omission 
to do so cannot prejudice him. 

c6nsequenceof Art. 190. Subi'ect to Arts. 191 and 258, the omis- 

omissioii to •' 

iishonor?'^ °^ sion, without lawful excuse, to give due notice of dis- 
honor to the drawer or any indorser of a bill, dis- 
charges such drawer or indorser from his liability on 
the instrument, and also from any liability on the 
consideration for which it was given.' 

Note. — The omission of the holder of a note payable in in- 
stallments, to give notice of the non-payment ofa,n installment 
discharges the indorser from liability for such installment only.* 
Under French Code, Arts. 168-170, the omission to give due 
notice of protest discharges the indorsers, but the drawer is 
not discharged unless he can shovr that the drawee had suf- 
ficent effects in his hands when he dishonored the bill. Under 
German Exchange Law, Art. 45, the omission to give due no- 
tice of protest deprives the holder of his right to interest and 
damages, but he can still recover the amount of the bill, unless 
his omission has caused actual damage. 

bill dishonored Art. 191. When a bill of exchange is dishonored 

by non-aocept- • c t i 

''Sentt°'n"'oa- y non-acccptance, and due notice oi dishonor is not 
ated. given to the drawer or an indorser tliereof, snch 

drawer or indorser is discharged as regards the holder 
at the time of dishonor, and all subsequent holders 
with notice thereof; ® but such drawer or indorser is 
not discharged as regards a subsequent holder for 

iC£. Richford v. Ridge (1810), 2 Camp, at 538. 

^Miers v. Brown (1843), 11 M. & W. 372. 

■'Bridges v. Berry (.1810), 3 Taunt. ,130 ; PeacocJc v. Purcell (1863), 14 
C. B. N. 8. 748 ; Cf. Phoenix Ins. Co. v. Allen (1863), 11 Mich. 501. 

*Fitehhurg Ins. Co. v. Davis (1876), 121 Mass. 121. 

^EoscowY. Hardy (1810), 12 East, 434 ; Bartlett v. Benson (1845), 14 
M. & W. 733 ; Of. Smith v. Roach (1846), 7 B. Mon. (Ky.) 17. 



,AET. 192.] DUTIES OF TEE HOLDER.. 181 

value who takes the bill before it is overdue and with- ™af^^^.°"" 
out notice that it has been so dishonored.'- 

Art. 192. Notice of dishonor must be given {a) 1°^^^°^/^ 
by or on behalf of the holder ,2 or (b) by or on behalf J^s'""" 
of an indorser whoj at the time of giving it, is liable 
on the bill, and who has a. right of recourse against 
the party to whom notice i^ given.^ 

iLLrSTEATIONS. 

1. A bill indorsed by 0. and held by D. is dishonored. X., 
who was at one time employed by the drawer to get the bill 
discounted, but is not in any way acting on D.'s behalf, in- 
forms C. that the bill has been dishonored. This is not suf- 
ficient ; 0. is discharged.* 

2. C. is the first indorser of a dishonored bill held by D. 
D. gives notice to C. one day late. C, on the same day, gives 
notice to the drawer ; thus, as it were, making up for the lost 
day. This notice is ineffectual ; for C, having been discharged 
by the holder's delay, is a mere stranger.* 

3. A bill indorsed by 0. is held by D. D.'s attorney gives 
notice of dishonor to the drawer, but by mistake gives it in 
C.'s name instead of D.'s The notice is sufiioient, provided U. 
is liable to D., and has a right of recourse against the drawer.' 

4. C, the indorser of a bill, holds it as agent for the in- 
dorsee. 0. presents it for payment, and it is dishonored. No- 
tice of dishonor given by C. in his own name is suiScient.' 

^Dunn V. O'Keefe (1816), 5 M. & S. 282, Ex. Ch.; Of. Whitehead v. 
Walker (1842), 9 M. & W. 506 ; see, too. Art. 133, n. 

2 Cromer v. Piatt (1877), 37 Mioh. 132. See e.g. Firth v. Thrush 
(1828), 8 B. & C. 387, notice given by holder's attorney ; Viale v. 
Michael (1874), 30 L. T. N. S. 463, by notary's derk ; Bank of UticaW. 
Smith (1820), 18 Johns . (N. T.) 230, by notary ; Bank v. Vaughan 
(1865J, 36 Mo. 90, by cashier of collecting bank.; Martin v. Ingersoll 
(1829), 8 Pick. (Mass.) at 6, by acceptor supr&pr^test. 

' Chapman Y. Keane (1835), 3 A. & E. 193 ; Chanoine r. Fowler (1829), 
3 Wend. (N. Y.) 173 ; Stonj, § 304 ; Cf. Burgh v. Legge (1839), 5 M. & 
W. at 420, and Harrison, v. Bmcoe (1846), 15 M. & W. at 234, 236, 
Parke B. ■ 

* Stewart v. Kennett (1809), 2 Camp. 177 ; Cf. East v. Smith (1847), 16 
L J B 292 ^ I' 

'» Turner Y. Leach (1821), 4 B. & Aid. 451. 

« Harrison v. R'Mcoe (1846), 15 M. & W. 231. 

'L'jsaght v. Bryant (1850), 19 L. J. C. P. 160. 



182 



BILLS OF EXCHANGE. 



[aet. 193. 



Notice of dis- 
honor by 
wbom to be 
given. 



In what man- 
ner. 



Explanation 1. — A party entitled to give notice may 
'constitute the drawee or acceptor his agent for the 
purpose of giving notice of dishonor.^ 

Explanation 2. — Notice of dishonor may be given 
hy an agent in his own name or in the name of any 
party entitled to give notice.^ 

Explaination 3. — If the holder be dead, notice of 
dishonor may be given by his personal representa- 
tive.^ 

Art. 193. Notice of dishonor may be given bythe 
party entitled to ' give it either personally, or by 
messenger or other agent,* or through the post- 
office.® 

Explanation 1. — Subject to Explanation 2, the send- 
er of the notice is bound to show that it was actually 
received by the proper party (Art. 198), in due season, 
and if so received, the manner in which the notice 
was given is immaterial.® 

Explanation 2. — When the person giving notice, 
and the party to whom notice is to be given, reside at 
the time of dishonor in different post-office deliveries, 
or in the same place, but where the carrier system 
prevails, due notice of dishonor is deemed to have 

^Rosher v. Kieran (1814), 4 Camp. 86, as explained by Harrison v. 
Ruscoe, (1846), 15 M. & W. 231; Cf. Glasgow v. Pratte (1843), 8 Mo. 
336 at 337 ; First Nat. Bank v. Byerson (1867), 23 la. 508 ; Baileii t. 
Bodenham (1864), 33 L. J. C. P. at 255, Erie, J.; see Stanton v. Bios- 
som (1817), 14 Mass. 116, where drawee had no authority, and notice was 
held bad. Cf. Art. 196. 

' Harrison v. Euscoe, supra. 

'White Y.- Stoddard (1858), 11 Gray (Mass.), 258; Cf. Art. 198, 
Expl. 3. 

^ Cf. Bank v. Lawrence (1828), 1 Pet. (U. S.) 578 ; Pearson v. Crallan 
(1805), 2 J. P. Smith, 404, as to messenger's expenses. 

^Stocken v. Collin (1841), 7 M. & W. 515. Cf. Art. 201. 

« Cf. Cahot Bank v. Warner (1865), 10 Allen (Ma.«s.), at 524 ; First Nat. 
Bank V. Wood (1879), 51 Vt. 471 ; Van Vechten v. Pruyn (1856), 13 N. 
Y. at 555. 



AKT. 193.] DUTIES OF THE HOLDER. 183 

been given though by the delay or default of the post- i^^^^^at man- 
office, never received, if the holder prove that a letter 
containing the notice was duly addressed and posted.^ 

Illustkations. 

Due notice is deemed to have been given, if the letter is duly 
addressed, in the following cases : 

1. C, firsf indorser, D., second indorser, and E., holder. 
E., residing in Xville, where bill is payable, deposits notice in 
Xville P. 0. addressed to D., residing in Yville.^ 

2. D. and E. reside in Xville, but the bill is payable in 
Yville. E. delivers notice addressed to D. to the letter carrier 
on his route at Yville.^' 

3. D. and E. reside in Xville. D. is accustomed to receive 
his mail at one P. O. in Xville and E. at another, and there is a 
regular mail between the two offices. E. deposits notice in one 
office addressed to D. at the other.* 

4. C. and D. reside in Xville, and E. in Yville, where bill 
is payable. E. mails at Yville a letter to D. enclosing notices 
of dishonor to him and to C. D., upon receipt of the letter, de- 
posits the notice to C. in the P. O. at Xville.' 

5. D. and E. reside»in Xville, where the carrier system is 
established. E. deposits notice addressed to D. in a street 
post-office box.° 

Otherwise unless actually received in the following oases : 

6. E. resides in Xville, and D; in Yville, where the note is 

1 Cahot Bank v. Warner (1865). 10 Allen (Mass.) 522; Forles v. Omaha 
Nat. Bank (1880), 10 Neb., 338. See Woodcock v. Houldsworth (1846), 
16 M. & W. 124, delay ; Mackay v. Judkins (1858), 1 T. & P. 208, loss, 
Byles, J.; Eenicick v. Tighe (1860), 8 W. R. 391. As to address, Hawkes 
V. Salter (1828), 4 Bing. 715 ; Cf. SkUbeckv. Garbett (1845), 7 Q. B. 846. 

^Munn V. Baldwin (1810), 6 Mass. 316; Shed v. BreU (J823), 1 Pick. 
(Mass.) 401. 

» Wynen v. Schappert (1878), 6 Daly (N. T.) 5.:8 ; Cf. Price v. M" 
Goldrick (1876), 2 Abb. N.C. (N. Y.) 69. 

*Shaylor v. Mix (1862), 4 AUen (Mass.), 351. 

^ Eagle Bunk v. Hathaway (1842), 5 Met. (Mass.) 212 ; Van Brunt v. 
Vaughn (1877), 47 la. 145. Cf. Art. 195, Expl. 5, and Art. 198, n. 

^Shoemaker v. Bank (1868), 59 Pa. St. 79 ; Walters v. Broicn (1859), 
15 Md. 285, and Greenwich Bank v. DeGrnot (1S761 7 Hun (N.Y.), 210; 
Mechanics' Bank v. Crow (1874), 5 Daly (N. T.) 191. 



In what man- payable. E., upon making due demand at Yville, deposits no- 
tice addressed to D., in the P. O. at Yville.' 

7. E. resides in Xville. D. also resides in Xville, and re- 
ceives his mail at the Xville P. O., but his residence is outside 
jf the corporate' limits, and some ten miles from the office. E. 
deposits notice addressed to D. in the P. O. at Xville.^ 

Note, — It seems that the mail may always be used with this ef 
feet in England, as the carrier system' everywhere prevaili^. 
"The suflScieucy of the direction on the letter is a question of 
reasonable diligence. If the drawer or indorser has a place of 
business the notice should be addressed to him there ; if he 
has not, then it should be addressed to him at his residence, 
and the party giving notice is bound to use reasonable dili- 
gence to discover such place of business or residence.* No- 
tice sent to the address given by an indorser is sufficient to 
charge him,' and in England it is held that the drawer will be 
charged in any case by notice sent to the place of date of the 
bill." But in America the sender is nevertheless bound to use 
due diligence in ascertaining the drawer's true residence at. the 
time of dishonor.' The sender may, however, presume that 
the drawer Or indorser's residence at the time of drawing or in- 
dorsing remains unchanged.' Geiroan Exchange Law, Art. 
47, provides that when an indorser does not state his address*, 
^ notice may be sent to the indorser who precedes him. ', 

For whose ben- Art. 194. Notice of dishonor^ivcn by or on be- 

elit no lice en- *^ *^ 

ures. 

^Bowling v. Harrison (1847), 6 How. (U. S.) 248 ; Cf. Peirce v. Pen- 
dar a842), 5 Met. (Mass.) 352. Contra, Philipe v. Haberlee (1872), 45 
Ala. '597 ; Cf. Tomeny v. Bank (1872), 9 Heisk. (Tenn.) 49.3. 

2 Forbes v. Omaha Nat. Bank (1880), 10 Neb. 338 ; Cf^, Shelbume Bank 
V. Townsley (1869), 102 Mass. at 182. Contra, Barrett v.EMm (859), 
28 Mo. 331 ; Bank v. Lawrence (1828), 1 Pet. (U. S.) 578 ; Timms v. 
Delisle (1840), 5 Blackf. (Ind;) 447 ; Cf. Gist v. Lybrand (1828), 8 0. 
308. 

^ Bigelow, p. 309. 

"Berridge v. Fitzgerald (1869), 4 L. R. Q.B. 639 ; Bank v. Beniler 
(1839), 21 .Wend. (N. Y.) 643 ; Herbert v. Servin (1879), 41 N. J. L. 225. 
See e.g., Roberts v. Taft (1876), 120 Mass. 169 ; Burlingame v. Foster 
(1880), 128 Mass. 125 : CentrnJ BanP v. 7.«i;j«. (1R79), 6 Mo. Ap. 543; 
Greenwich Bank v. DeGroot (1876), 7 Hun (N. T.), 210. 
• ' Eastern Bank v. Brown (1840), 17 Me. 356 ; Barilett v. Eobimon 

(1868), -39 N.Y. 187. 

^Burmester v, Barron (1852), 17 Q. B. 828 ; Cf. Ex parte Baker 
(1877). 4 L. R. Ch. D. at 799, C. A. 

■'Lowery v. Scott (1840), 24 Wend. (N. Y.) 358; Pierce v. Stratliers ■ 
(1«56), 27 Pa. St. 249 ; Mason v. Priichard (1872), 9 Heisk. (Tenn.) 
■(93. 

'Rec/ua v. Collins (1872),-51 N. Y. 148 ; Knott v. Tenable (1868), 42 
Ala. 186. 



ART. 195.] DUTIES OF THE HOLDER. 185 

half of tlie holder enures for the benefit of (a) all Jorwho^e ben- 
subsequent holders, and {b) all prior indorsers liable '^'■''^• 
on the bill who have a right of recourse against the 
party to whom notice is given.^ 

Notice of dishonor given by or on behalf of an in- 
dorser entitled to give notice,^ enures for the benefit 
of the bolder and all indorsers liable on the bill who 
have a right of recourse against the party to whom 
notice is given.^ 

NoTK. — In New York it has been held that notice duly sent 
by the holder does not enure for the benefit of a prior in- 
dorser, unless it reaches the party to whom it is sent, but the 
circumstances of the case were somewhat special.* See Art. 
191 for a case where an indorser might be liable on the bill, 
and yet not able to avail himself of a notice of dishonor given 
by another, or to give one himself. 

Art. 195. Notice of dishonor may be given by or Notice of <!»■ 

TTTnnTtT^ 11.111 1 hoDor, when to 

on behalt oi the holder as soon as the bill has been te given. 
dishonored,^ and it must be given within a reasonable 
time after dishonor.® 

Explanation 1. — Reasonable time is a mixed ques- 
tion of law and fact.'' 

Explanation 2. — In determining what is a reason- 
able time, non-business days must be excluded.* 

' B:iles, p. 2S5 ; Stafford v. Yates (1820). 18 JokQS.(N. T.) 327 ; 
Williams v. Matthews (1824), 3 Cow. (N. Y.) 252. 

2Cf. Art. 192. 

s Chapman v. Keane (1835), 3 A. & B. 193 ; LysagU v. Bryant (1850), 
19 L. J. C. P. 160 ; Streeter y. Fort Bank (1866), 34 N. T. 41^. 

^Beale v. Parish (18.59), 20 N. Y. 407. 

^Burbridge v. Manners (1812), 3 Camp. 193; Ex parte Molines 
(1812), 1 Rose, 303 ; Farmers' Bank v. .Duvall (1835), 7 G. & J. (Md.) 
78 ; King v. Crou^ell (1873). 61 Me. 244 ; Jackson v. Richards (1805), 
2 Games (N. Y.), 343. Cf. Art. 171. 

'Hirschfield v. Smith (1866), 1 L. R. C. P. at 351 ; Gladwell v. Tur- 
ner (1870)' 5 L. R. Ex. at 61. 

' Id. ; Cf. Bank v. Su-ann (1835), 9 Pet. (U. S.) at 46 ; Wyman v. Ad- 
ams (1853), 12 Cush. (Mass.) at 213, 214 : Arts. 150, 162. 

^ Eagle Bank v. Chapin (1825), 3 Pick. (Mass.) 180; Cf. Farmers' 
Bank V. Vail (I860), 21 N. Y. 485 ; Hallowell v. Curry (1861), 41 Pa. 
St. 322 ; LAndo v. Unsworth (1811), 2 Camp. 601, Jewish sacred festival. 



186 BILLS OF EXCHANGE. [art. 195. 

hoMT w^nto Explanation 3. — When the person giving notice 
be given. ^^^ ^j^g party to whom notice is to be given live in 
the same place, the notice must, in the absence of spe-' 
cial circumstances, be received by such party at a 
reasonahle hour-^ on the day after the sender became 
entitled to give notice.^ 

Exception.— ^la such cases within Art. 193, Expl. 
2, the notice must be sent off in time by due course of 
mail to reach the party to be notified on the day after 
the sender became entitled to give notice.* 

Explanation 4. — Subject to the foregoing excep- 
tion, if the case is within Art. 193, Expl. 2, and 
notice is given through the post-office, the notice must, 
in the absence of special circumstances, be sent off on 
the day after the dishonor of the bill, if there be a 
post at a reasonable hour on that day ;* and if there 
be no such post on that day, then by the next post 
thereafter.^ 

Explanation 5.-^If the case is within Art. 193, 
Expl. 2, and notice is not given through the post-office, , 
the notice must, in the absence of special circum- 
stances, be received at a reasonable hour on the same 
day it would have been received by due course of 
mail.® 

^John V. Bank (1876), 57 Ala. 96 ; Adams v. Wright (1861), 14 Wis. ' 
408 ; Jameson v. Swinion' {1810). 2 Taunt. 224 ; Cf. Cabot Bank v. War- 
* ner (1865), 10 AUen (Mass.), at 524. 

2 Cf. Gladwell v. Turner (1870), 5 L. R. Ex. at 61, Martin, B. 

^ Smith V. Miillet (1809), 2 Camp. 208; Hilton v. Fairclough (1811), 
2 Camp. 601 ; Cf. Walters v. Broum (1859), 15 Md. at 292. 

" Williams v. Smith (1819), 2 B. & Aid. at 600 ; Lawson v. Bank 
(1853), 1 0. St. 206. See e.g., Stephenson v. Dickson (1854), 24 Pa. St. 
148 ; Haskell v. Boardman (1864), 8 AUen (Mass.), 38 ; West v. Brown 
(1856), 6 0. St. 542 ; Burgess v. Vr'eeland (1858), 4 Zab. (N. J.) 71. ' 

^Hawkes v. Sailer (1828), 4 Biner. 715 ; Lawson, v. Bank (1853), 1 0. 
St. 206 ; Carter v. Burley (1838), 9 N. H. 558, at 570 ; Cf. Geill v. Jer- 
emy (1827), M. & M. 61. 

<^ Bancroft v. Hall (1816), 1 Holt, 476 ; DarUsUr^ v. Parker (1805), 



AET. 196.] DUTIES OF THE HOLDER. 187 

Note. — Under French Code, Art. 165, the holder of a dis- Notice of dis- 
honored bill must give notice of protest and commence pro- iJegiy'^n/"'" ° 
ceedings within fifteen days of the date of protest, if the 
drawer or indorser sought to be charged live within five myria- 
metres. Extra time is given for extra distance. Thus, under 
Art. 166, as modified by the law of May 3, 1862, when a bill is 
payable in England the holder has one month for giving no- 
tice of protest and commencing proceedings agaiinst a French 
drawer or indorser. The notice of protest and the summons 
(assignation en justice) are usually comprised in one document, 
Kouguier, §§ 1088-1089. Under German Exchange Law, Art. 
45, the holder must send off written notice of protest within 
two days after protest. 

Art, 196. A party wlio receives due notice of tlie Right of party 
dishonor of a bill has, after the receipt of such notice, uce to trausfer 

' -t 'it within rea- 

the same time for giving notice to antecedent parties sonaWe time. 
that the original holder has after the dishonor of the 
bill.^ Cf. Art. 196 

Illtjsteatioit. 

C, the indorser of a bill held by D., receives notice of dis- 
honor on Sunday morning. Sunday being a dies non^ it is 
sufficient if C. send off notice to the drawer on Tuesday.^ 

Explanation 1. — When a bill is in the hands of an 
agent, the agent has the same time for giving notice 
to his principal that he would have if he were an in- 
dependent holder and his principal an indorser liable 
to him.® 

Illusteations. 

1. A bill payable in London is indorsed in blank by the 

6 East, 3 ; Cf. Jams v. St. Croix Co. (1843), 23 Me. 287 ; First Nat. 
Bank v. Wood (1879), 51 Yt. 471 ; Shelburne Bank v. Towmleif (1869), 
102 Mass. at IBS. 

'^Bray v. Hadwen (1816), 5 M. & S.'eS ; Lawsony. Baj?M1853), 1 0. 
St. 206 ; Manchester Bank v. Fellows (1854), 8 Fost. (N. H.) 302 ; Cf. 
Eowe v. Timer (1853), 22 L. J. C. P. at 137 ; German Exchange Law, 
Art. 45 ; French Code, Arts. 167, 169. But see Freeman's Bank v. 
Perkins (1841), 18 Me. 292. 

2 Wright v. Shaweross (1819), cited 2 B. & Aid. at 501 ; Dellieux v. 
Bullard (1841), 1 Rob. (La.) 66. 

^Lawson v. Bank, supra; Howard v. Ives (1841), 1 Hill (N. T.), 263. 



188 BILLS OF EXCHANGE. [aet. 196. 

Eightpfparty holder, and deposited with a country banker for collection. 

tice to transfer The country banker's London agent, presents it for payment 

BonaWe time, and gives him due notice of its dishonor. The country banker 

on the day after the receipt of such notice gives notice to his 

customer, who in turn gives similar notice to his indorser. This 

indoiser has received due notice.' 

%. 0. indorses a bill to the Liverpool branch of the D. Bank. 
The Ijiverpool branch sends it to the Manchester branch, and 
the Manchester branch indorses it to the head oflBce in London 
who present it for payment. The head oiEce sends notice of 
dishonor to the Manchester branch, the Manchester branch 
sends notice to the Liverpool branch, who give notice to C 
Each branch, as regards time, is to be considered a distinct 
party.^ 

3. X. pays a bill suprh protest for the honor of C, an in- 
dorser, who resides at Bruges, and the same day posts the bill 
to G. 0. by return of post sends the bill backto X., who at 
once gives notice of dishonor to the drawer. Although six 
days have elapsed since the dishonor, the notice is in time, and 
X. can sue the drawer.' 

Note. — See contra, Mx parte Prange (18G5),* where the 
authorities were not cited. 

ExplaTiation 2. — When a bill is presented for pay- 
ment through the post-office, the drawee or acceptor is 
deemed to be the agent of the holder for the purpose 
of giving notice of dishonor,^ and has the same time 
for giving notice that the holder would have if be 
himself presented it.® 

' Bray v. Hadwen (1816), 5 M. & S. 68 ; Cf. Firth v. Thrush (1828). 
8 B. & C. 887. 

'Clode v. Bat/let/ (1848), 12 M. & W. 51, approved Prince v. Oriental 
Ba»A;(1878),3'L. R. Ap. Ca. at 322, P. C: Cf. Wynen v. Schapyert 
(1878), 6 Daly (N. T.), 258. 

^Goodall V. Polhili (1846), 14 L. J. C. P. 146. 

nL. R. Eq. 1. 

» Cf. Bailei/ V. Bodenham (1864), 83 L. J. C. P. at 255 Brie, J.; Wind- 
ham Bank v. Norton (1852), 22 Conn. 213. 

'Prideaux v. Griddle (1869), 4 L. R. Q. B. at 461 ; Cf. Hey wood y. 
Pickering (1874), 9 L. R. Q. B. 428. Cf. Ait. 192, Expl. 1. 



ART. 197-98.] DUTIES OF THE HOLDER. 189 

, Art. 197. The holder or other person entitled to Nottce of div 
give notice of dishonor must give notice to a remote ™°'*p*'*'^' 
party within the same limits of time that would suffice 
in the case of an immediate party .■^ 
Illusteation. 

A dishonored bill drawn by A. is held by H., the tenth in- 
dorsee. H. has no longer time to give notice to A. than he 
Las to give notice to his immediate indorser — e.g., if A., the 
drawer, and H. live in the same town, H. must give notice to 
A. on the day following the dishonor of the bill. 

Note. — If the holder does not give notice to a remote party 
in due time, he cannot rely on his own notice ; but if he has 
given due notice to his immediate indorser, liis rights may yet 
be saved by a notice given by such indorser ; Cf. Art. 194. 

Art. 198. Notice of dishonor must be given to the honor' ?o"'" 

drawer or indorser intended to be charged, or to somegiveS 

person authorized to receive notice on- his behalf. 

Note.— But it has been held in Massachusetts in evident 
conflict with this principle, that it is sufficient to charge a prior 
indorser, if notice for him is enclosed to a subsequent indorser, 
though never received by the latter. ^ 

Explanation 1. — It is the duty of a drawer or in- 
dorser, if he be absent from his place of business or 
residence, to see that there is some person there to re- 
ceive notice on his behalf.^ 

Illusteations. 

1. C. is the indorser of a bill which is dishonored. Verbal 
notice given to his solicitor is not sufficient.* 

' Roive V. Tipper (1853), 22 L. J. C. P. 135 ; Simpson v. Tiirney (1844), 
5 Hump. (Tenn.) 419 ; Of. Nouguier, § 1096. 

2 Wamesit Bank v. Buttrick (1858), 11 Gray (Mass.), 387. Contra, 
Stix V. Matthews (1876), 63 Mo. 871. - 

»Cf. Alien \. Edmundson (1848), 2 Exch. at 723 ; Turner v. Leach 
(1818), cited Chittij, 10 ed. p. 333 ; Howe v. Bradley (1841), 19 Me. 35. 
Art. 200, 01. (6). 

•* Crosse v. Smith (1813), 2 M. & S. at 553 ; Louisiana Bank v. Ellery 
(1825), 4 Mart. (La.) N. S. 87. Cf. New York v. Selma Bank (1874), 51 
Ala. 305. 



190 BILLS OF EXCHANGE. [aet. 198. 

Notice of dia- 2. X., who has authority to indorse for C, indorses a bill in 
•whom to be O.'s name. Notice of dishonor given to X. is not sufficient.' 

3. The drawer of a bill is a non -trader. Verbal notice of 
dishonor given to his wife at his house, in his absence, is suiE- 
cient.^ 

4. The indorser of a bill is a merchant. Notice of dishonor 
verbal or written, given to or left with a clerk at his counting- 
house is sufficient.' 

5. C. indorses a bill " in need at Messrs. X. & Co." Notice 
of dishonor given to X. & Co. is not sufficient to charge C* 

Explanation 2. — When the drawer or indorser of a 
bill becomes bankrupt, notice of dishonor may (prob- 
ably) be given either to the bankrupt or to his trustee. 

Note. — All that has been actually decided is that notice 
given to the bankrupt in ignorance that the trustee had been 
appointed is sufficient. It is a question of reasonable dili- 
gence.' 

Explanation 3. — If the drawer or indorser of a bill 
be dead, notice of dishonor must be given to one of 
bis personal representatives, when, with the exercise 
of reasonable diligence, they can be discovered.'' 

NoTE.-T— If there be no executor or adniinistrator, notice left 
at the last residence of the drawer or indorser is sufficient,' and 

1 Yalh V. Gaillard (1849), 4 Strob. (S. C.) L. 99. But Cf. Wilcox v. 
itouth (1848), 9 Sm. & M. (Miss.) 476 ; Firth, v. Thrush (1828), 8 B. & 
C. at 391. 

^HousegoY. Cowne (1837), 2 M. & W. 348 ; Cf, Wharton v. Wright 
(1844), 1 C. & K. 585 ; Blakely v. Grant (1810), 6 Mass. at 308. 

^ Allen V. Edmundson, supra, at 724 ; Viale v. Michael (1874), 30 L. 
T. N. S. 463 ; Edson v. Jacobs (1839), 14 La. 494. 

*^Ex parte Prang e (1865), 1 L. R. Bq. at 5. 

'■Ex parte Baher (1877), 4 L. R. Ch. D. 795; Cf. Rhode y. Proctor 
(1828), 4 B. & 0. 517. 

» Ex parte Johnson (1834), 1 Mon. & Ayr., at 628. 

''Byles, p. 289 ; Mass. Bank v. Oliver (1852), 10 Cush. (Mass.) 557 ; 
Cayuga Bank v. Bennett (1843), 5 Hill (N. Y .), ^36 ; Beals v. Peck 
(1851). 12 Barb. (N.Y.) 245. 

^Merchants' Bank v. Birch (1819), 17 Johns. (N. T.) 25; Weaver v. 
Penn (1875), 27 La. An. 129 ; Cf. Under, nan v. Guldin (1859), 34 Pa. 
St. 54 ; Boyd v. Orton (1863), 16 Wis. 495. 



AET. 199.] DUTIES OF THE HOLDER. 191 

it has further been held that notice may be given to the person Notice of ais- 
named as executor in the will of the deceased, but not yet ^^" jj t^ ^,6 
legally appointed.' 8*^^"- 

Explanation 4. — "When there are two or more joint 
drawers or indorsers who are not partners, notice of 
dishonor must be given to them all.^ 

Art. 199. Notice of dishonor may be given (a) in Notice of ais- 

•^ ° ^ ' honor reqiii- 

writing, or (b) by personal communication. The no- ^''^"'^ ^<"™- 
tice may be given in any terms ^ which 
(1.) Sufficiently identify the bill.* 
(2.) Intimate that the bill has been dishonored^ 
by non-acceptance or non-payment, and that 
the party to whom notice is given is held 
liable." 
Explanation 1. — A misdescription of the bill does 
not vitiate a notice unless the party to whom notice is 
given is in fact misled thereby.'' 

Illustration. 

A notice to the drawer which describes the bill as payable at 
the " S. Bank," when in fact it was payable at the " T. Bank," * 
or which describes a bill of exchange as a note,' or which. trans- 

» Goodnow Y. Warren (1877), 122 Mass. 79. 

2 Willis V. Green (1843), 5 Hill (N. Y.), 232 ; Miser v. Trovinger 
(1857), 7 0. St; 281 ; State Bank v. Slaughter (1844), 7 Blackf. (Ind.) 133. 
If partners, notice to one sufficient, Bouldin v. Page (1857), 24 Mo. 594 ; 
Hubiard. v. Matthews (1873), 54 N. Y. 43. 

s Caunt V. Thompson (1849), 18 L. J. C. P. at 127. 

*Shelton v. Braithwaite (1841), 7 M. & W. 436 ; Mills v. Bank (1826), 
11 Wheat. (U. S.) 431 ; Gates v. Beecher (1875), 60 N. Y. at 627. 

s GilbertY. Dennis (1842), 3 Met. (Mass.), 495. See Arts. 159, 170, de- 
fining "dishonor." 

^ Allen T. Edmundson (1848), 2 Exch. at 723, Parke, B.; Metcalfe v. 
Richardson (1852), 11 C. B. at 1014, Williams, J.; Everard v. Watson 
(1853), 1 E. & B. at 804, Lord Campbell. 

■" Bank v. Carneal (1829), 2 Pet. (U. S.) 543 ; Thompson v. Williams 
(1859), 14 Cal. 160. 

^Bromage v. Vaughan (1846), 16 L. J. Q. B. 10. 

^Stockman v. Parr (1843), 11 M. & W. 809 : Bain v. Gregory (1866), 
14 L. T. N. S. 601. 



192 BILLS OF EXCHANGE. [aet. 199: 

Notice of dis- poses the names of drawer and acceptor,' or -whioli describes 
Bites in form, the acceptor by a wrong name,' or which misstates the sum 
payable,' may be sufficient. 

Note. — If the note is correctly and sufficiently described, it 
is not material that the indorser is left in doubt as to which 
one of several similar notes indorsed by him the notice of dis- 
honor refers.* 

Explanation 2. — The notice need not expressly 
state that the bill has been presented and dishonored,^ 
or protested, if protest be necessary," or that the party 
to whom notice is sent is called on to pay the bill.' It 
is sufficient that these facts can be reasonably inferred 
from the terms of the notice. 

Illusteations. 

1. ■ " B.'s acceptance for $50 due on Saturday is unpaid. He 
has promised to pay it in a week. I shall be glad to see you 
upon it. (Perhaps) insufficient.' 

3. " I give notice that a bill, &c. (description), indorsed by 
you lies at 1, X. Street, dishonored." Sufficient." 

3. The holder's clerk wrote to an indorser" that " B.'s ac- 
ceptance due that day was unpaid, and requested his immedi- 
ate attention to it." Sufficient.'" 

^MeUerskv. Hippen {1852), 7 Exoh. 578 ; Of. Dennistoun v. Stewart 
(1854), 17 How. (U. S.) 606. 

^Harpham v. Child (1859), 1 F. & F. 652. 

^Bank v. Swarm (1835), 9 Pet. (U. S.) 33 ; Snow v. Perkins (1851), 2 
Mich. 238. 

* Hodges V. Shuler (1860), 22 N. Y. 115 ; Cook v. Litchfield (1851), 5 
Sandf. (N. Y.) 340, but-seeS. C, (1853), 2 Seld. (N. Y.), 286. 

^PaulY. Joel (1859), 28 L. J. Ex. 143. But Cf. Gilbert v. Dennis 
(1842), 3 Met. (Mass.) 495. 

^Exparte Lowenthal (1874), 9 L. R. Ch. 591. 

'•King v. Bicklei/ (1842), 2 Q. B. 419 ; Miers v. Brown (1843), 11 M. & 
W. 372 ; Chard v. Fox (1849), 14 Q. B. 200 ; Bank v. Carneal (1829), 2 
Pet. (tr. S.), 543 ; Townsend v. Lorain Bank (1853); 2 0. St. 345. 

« Furze v. Sharwood (1841), 2 Q. B. 388. 

° King v. Bicklei/, supra. 

" Bailey v. Porter (1845), 14 M. & W. 44 (notice lost and secondary 
evidence given of contents) ; Cf. Cromer v. Piatt (1877), 37 Mich. 132. 
Contra, Gilbert v. Dennis, supra ; Townsend v. Lorain Bank, supra ; 
Page v. Gilbert (1872), 60 Me. 488, unless bill ia payable at bank, Clark 
V. Eldridge (1847), 13 Met. (Mass.), 96. 



hJet. 199.] DUTIES OF THE HOLDER. 193 

4. "Your rJraft which became due. vesterday is unpaid. Notice of aia- 

• , . . " , honor, requi- 

Unless the same is paid immediately I shall take proceedings.sitesmform. 
Nothing 5«." Sufficient.! 

5. The fallowing notice left at the drawer's counting-house 
by the holder's clerk : " B.'s acceptance to A., $30., due Janu- 
ary 1, is unpaid. Payment to D. is requested before 4 p. m., 
Sufficient.'' 

6. " D. Bank. I beg to intimate that B.'s acceptance to you 
due 1st January is still unpaid, and I have to request your 
immediate attention to the same." No signature. Sufficient.' 

7. Notice to drawer of bill accepted by B. " Yours and 
B.'s note of hand is now due, and your attention to the same 
will oblige." Sufficient.' 

8. The third day of grace falls on July ith. Notice dated 
July 4th, stating that " payment has been this day duly de- 
manded," is insufficient, though demand was in fact made on 
July 3rd, the proper day. Th'e notice imports no dishonor of 
the bill.^ 

Note. — Notices of dishonor are now censtrued very libera-1 
ly, especially in England. The House of Lords in Solarte v. 
Palmer (1834),° decided that the notice must inform the holder, 
either in terms or by necessary implication, that the bill had 
been presented' and dishonored. This inconvenient decision 
has frequently been regretted,' and is now, it seems, practical- 
ly got rid of by considering 'it merely as a erroneous finding 
on a question of fact.' Since 1841 (see illustration 1, suprd) it 
does not appear that any notice of dishonor has been held bad 
by the English Courts on the ground of insufficiency in from. 
In one case, Coleridge, J., suggested that a notice given by an 
indorser would be more strictly construed than a notice given 

' Armstrong v. Christiani (1848), 5 C. B. 687 ; Everard v. Watson 
(1853), 1 E. & B. 801. 

^ Paul ^. Joel (1858), 27 L. J. Ex. 380; affirmed 28 L. J. Ex. 143. 
SM qu ? 

3 Maxwell v. Brain (1864), 10 L. T. N. S. 301. 

-> Bain V. Greffonj (1866), 14 L. T. N. S. 601. Sed qu ? 

<■ Ransom v. Mach (1842), 2 Hill (N. T.), 587 ; Wynn v. Alden (1847), 
4' Den. (N. Y.), 163 ; Toivnsend v. Banh (1853), 2 0. St. 345. Contra, if 
jury fii d indorser not misled, Crocker v. Getchell (1844), 23 Me. 392 ; 
Journey v. Pierce (1859), 2 Houst. (Del.) 176. 

^IBing.N.C. 194. 

' Cf. Everard v. Watson (1853), 1 E. & B. at 804, Lord Campbell. 

8 Per Bramwell, B. Paul v. Joel (1858), 27 L. J. Ex. at 384 ; see, too, 
Maxwell v. Brain, supra, at 302. 

13 



194r BILLS OF IfXCHANGE. [aet. 1P9. 

Notice of dis- by the bolder.' On the other hand, it will be seen from Gil- 
StSTi&rSi' *«^^ '^- tennis (1842),^ a case which has been generally fol- 
lowed and approved, that the rule in America is more strict, 
and the cases seem almost, if not quite, in harmony yith Solarte 
V. Palmer. T^e late case of Cromer v. Piatt (1877),' however, ' 
appears to support the later English doctrine. It is now well 
settled in England and America,, contrary to Solarte v. Palmer^ 
that the mere fact of giving notice, is a sufficient indication 
that the party to whom notice is sent is called on to pay the 
bill.* 

Explanation 3.-r-A ■written notice of dishonor need 
not be signed,^ but the party notified must in some 
way be informed from whom it proceeds.® 

JExpld.nation 4. — An insufficient written notice may 
be supplemented and made valid by a personal com- 
munication.'' 

Explanation 5. — When notice is given by personal ,, 
communication,* or when a written notice is supple- ^ 
mented by a personal communication,® the sufficiency 
of such notice is a question of fact. 

Illusteations. ■ 

1. A person sent by the holder goes to the house of the 
drawer, who is not a trader, and not finding the drawer informs 
his wife that he bas brought back the bill dishonorpd. The 
•wife says she will tell her husband. This may be suflScieiit.'"' 

2. The holder's clerk goes to the drawef and tells him that 

>Cf. East V. Smith (1847), 16 L. J. Q. B. 292, sed qu. ? 

2 3 Met. (Mass.) 495. .» 

» 37 Mich. 132. , 

* Chard v. Fox (1849), 14 Q. B. 200 ; Banh v. Carneal (1829), 2 Pet. ; 
(U. S.) at 552 ; Townsend v. Bank, (1853), 2 0. St. at 354. 
' ' Maxwell v. Brain (1864), 10 L. T. N. S. 301 ; Of. Paul v. Joel, 
(1858), 27 L. J. Ex. 380. 

^Klockenhaum v. Pierson (1860), 16 Cal. 375 ; Walker y. B«wfc(1844), 
8 Mo. 704. 

. ■'Houlditch Y. Cauti/ (1838), A Biag. IS. C. ill; Ci. Paul y. Joel, 
supra, at 384. 

^Metcalfe v. Richardson (1852), 11 C. B. 1011. 

'JSoulditch Y. Cauty (1838), 4 Bing. N. C. at 419 ; Cf. Paul v. Joel, 
supra. 

^K Housego v. Cowne (1837), 2 M. & W. 348. 



AET. 200.] DUTIES OF THE HOLDER. 195 

his bill has been presented, and that the acceptor cannot pay Notice of dis- 
it. The drawer replies that he will see the holder about- it. sites in form. 
This may be sufficient.' 

3. A notary's clerk takes the bill, with the notary's ticket 
attached, to the drawer's office, and shows it to a clerk there. 
The clerk looks at it, says the drawer is out-'and has left no 
orders. The notary then leaves the usual notice that the bill 
is due at his office. This may be sufficient.^ 

Art. 200. Notice of dishonor is dispensed with — Excuses for not 

-*- giving notice 

(1.) When the drawer or indorser sought to be"^'^'^''"'""^- 
charged is as between the parties to the bill 
the principal debtor, and has no reason to ex- 
pect that it will be honored on presentmeat. 

Illusteations. 

1. A draws a bill on B., who is under no obligation to ac- 
cept or pay it, and has not held out that he will do so. It is 
presented and dishonored. A. is not entitled to notice.' 

2. A. draws a bill on B. payable at his own house. B,. ac- 
cepts it. Primd facie this is an accommodation bill for A.'s 
benefit, and he is not entitled to notice.* 

3. A. signs a bill as drawer in order to accommodate the 
acceptor. A. is entitled to notice.^ 

4. A., having a small balance in B.'s hands, draws on him 
for a larger sum. B. accepts, but does not pay. A. is entitled 
to notice.^ 

^Metcalfe v. Richardson (1852), 11 C. B. 1011. 

2 Viale v. Michael (1874), 30 L. T. N. S. 463. For further ilbsti-ation, 
see Phillips v. Gould (1838), 8 C. & P. 355 ; East r. Smith (1847) 16 L 
J- Q- B. 2^2 ; CW v. Fox (1849), 14 Q. B. 200; Jennings V.Roberts 
(1865), 24 L. J. Q. B. 102. 

^Bickerdlhe v. Bollman (1786), 1 T. E. 405, and Smith's L. Ca 7 
ed. p. 50 and notes ; Claridge v. Dalton (1815), 4M. & S. 225 ; Dichins v 
Beal (1836), 10 Pet. (U. S.) 572 ; WirthY. Austin (1875), 10 L R C P 
689 ; Welch v. B. C. Mfg. Co. (1876), 82 lU. 579. 

^ Sharp V. Bailey (1829), 9 B. & C. 44 ; Of. Ca.rter v. Flower (18471 16 
¥■ * ^oJlt^L^'J'^ \ Morrison (1841), 2 W. & S. (Pa.) 401 ; Torril v. 
Foss (1855), 40 Me. 74. / . ■/ . 

^ Sleigh Y. Sleigh (1850), 5 Exch. 514; Cf. French v. Banh (1807) 4 
Cranch. (U. S. at 160. ' 

,^'J!^^"■n^^^^ ^- ?l^^^ ^l^^^), 3 Camp. 164; Cf. Bagnall v. Andrews 
(looUJ, / Jomg. at 22o. 



196 BILLS OF EXCHANGE. [ART. 200. 

Excuses for not S. A. having a balance of $10 at his banker's, and having 
of diaionoT. no authority to overdralw,, draws a check for $50. A. is not 
entitled to notice.' 

6. A. draws, B. accepts, and C. indorses a bill in order to 
accommodate D., the second indorser. If the bill is dishon- 
ored, A. and C. are entitled to notice.' 

7. A. draws and B. accepts a bill to accommodate X., who, 
is not a party to it, but who is to provide for it. A. is entitled 
to notice of dishonor.' 

8. A. draws, B. accepts, and C. indorses a bill in order to 
raise money for their joint benefit. A. and C. are entitled to 
notice.* 

Note. — Cf. Art. 90, accommodation bill defined, and Art. 
168, excuses for non-presentment. The acceptor is the princi- 
pal debtor on the face of the instrument, but evidence is ad- • 
missible to show that he is in reality a mere surety, and that 
some other person is ultimately liable.' As to French law, see 
Art. 190, n. 

(2.) As regards the drawer, when drawer and 
drawee are the same person, or identical in 
interest.® 

Illtjstbatioit. 

A. bill drawn by A. & Co. is accepted by B. & Co., the _ two 
firms having a common partner. A. & Co. are entitled to have 
the bill presented for payment,' but are not entitled to notice.' 

(3.) When the drawer or indorser sought to be 
charged is the person to whom the bill is pre- 
sented for payment. 

^Carew y. DuckwoHK (1869), 4 L. R.Ex. 313; CI HopJeirh y. Page 
(1822), 2 Brock. (C. Ct.) 20 ; BlanlcensUp v. Rogers (1^58), lO'Ind. 333. 

^Cory V. Scott (1820). 3 B. & Aid. 619 ; Turner v. Samson (1876), 2 
L. R. Q. B. D. 22 C. A.; French y. Bank (1807), 4'Cranch(U.S.),atl61. 

'Lafitte V. Slatter (1830), 6 Bing. 623. 

* Foster v. Parker (1876), 2 L. R. C. P. D. 18. 

« Cf. CookY. Uster (1863), 32 L. J. C. P. at 127, per Willea, J. 

'Art. 2, Bxpl. 3 ; Porthouse v. Packer (1807), 1 Camti. 82: Bhett v. 
Poe (1844). 2 How (U. S.j, 467. 

''DwigU Y. Scovil (1818), 2 Conn. 654. 

^Neu! York Co. v. Bank (1874), 51 Ala. 305 ; Cf. Full^ v. Hooper 
(1855), 3 Gray (Mass.), 334 ; West Bank v. Fulmer (1846), 3 Pa. St. 399. 



AET. 200.] DUTIES OF THE HOLDER. 197 

IlLTJSTKATION. . Excuses for not 

giving notice 

The indorser of a bill becomes the executor of the acceptor, of dishonor. 
It is presented to him and he refuses to pay it. He is not en- 
titled to notice.' 

Note. — But this is doubtful. See jBigelow, p. 376, § 4. It 
may be remarked, hov^ever, that there are no cases necessarily 
opposed to the rule deduced from Gaunt v. Thompson. 
Clearly, presentment for payment is not dispensed with, 
^Magruder v. Union ^ar? A, see at 91,' unAm Juniata Sank y. 
Hale, it does not appear that the indorser sought to be charged 
was the person to whom the note was presented for payment. 

(4.) When the drawee is a fictitious person, or (per- 
haps) a person not having capacity to contract, 
and the drawer or indorser sought to be charged 
was aware of the fact at the time he drew or 
indorsed the bill.^ 

(5.) When the drawer or indorser sought to be 
be charged has received an assignment of all 
the property of the acceptor as security against 
his liability.^ Cf. Art. 168, cl. (3). 

Note. — This is justly questioned in Daniel, §§ 11.30-1131. 
But it is submitted that the learned author's conclusion that 
the decisions rest upon the ground that the property was re- 
ceived for the express purpose of meeting the acceptor's liabil- 
ity, is erroneous. This distinction should be noticed : If the 
property is received for the express purpose of meeting the 
primary and absolute liability of the acceptor, then clearly no- 
tice is dispensed with, as he changes place with the acceptor 
and becomes himself the principal ; * but if the property is re- 
ceived for the purpose of meeting his own liability, then it should 
be regarded only as security against a liability conditional on 
demand and notice, though held otherwise in the cases cited,' on 

1 Caunt V. Thompson (1849), 18 L. J. C. P. 125. But Cf. Juniata Bank 
V. Hale (1827), 16 S. & R. (Pa.) 157 ; Magruder v. Union Bank (1830), 
3 Pet. (U. S.) 87. 

^ Leach v. Hewitt (1813), 4 Taunt, 731 ; Smith v. Bellamy (1817), 2 
Stark. 223. But Cf. Wyman v. Adams (1853), 12 Gush. (Mass.) 210; 

^Mechanics' Bank v. Griswold (1831), 7 Wend. (N. Y.) 165 ; Barton 
v. Safer (1815), 1 S. & R. (Pa.) 334; Bond v. Farnsworth (1809), 5 
Mass. 170 ; Cf. Spencer v. Harvey (1837), 17 Wend. (N. Y.) at 490. 

■•Cf. Wilson v. Senier (1861), 14 Wis. at 386, 387 ; Woodbury v. Crum 
(1859), 1 Biss. (C. Ct.) 284. 



198 BILLS OF EXCHANGE. [art. 200. 

Excuses for not the ground that as the iridorser has received all the acceptor's j 
of^alsiouor?^ property, demand would be fruitless. But in accordance with 
this reasoning, it is well settled that the mere receipt of a part 
of the acceptor's property as collateral security, whether the 
security is sufficient to meet the bill or not, does not dispense 
with demand and notice,' though some courts hold the contrary .^ 
where the security is sufficient and the indorser fully indem- 
nified.^ 

(6.) When, after the exercise of reasonable dili- 
gence, notice of dishonor cannot be given to 
or does not reach the party sought to be charged.^ 
• Explanation 1. — Reasonable diligence is a mixed 
question of law and fact.* 

Illusteations. 

1. The holder of a dishonored bill goes to the drawer's place 
of business during business hours to give hira notice of dis- 
honor. He finds the place shut and ng one there of whom to 
make inquiries. This may excuse notice.'^ 

3. The holder of a bill duly addresses and posts a notice of 
dishonor. It is lost in the post. The drawer or indorser to 
whom it was sent is not discharged.' 

3. The holder of a dishonored bill does not know the in- 
dorser's address. He makes some inquiry, but does not take 
the steps he reasonably might have done. The indorser is 
discharged.' 

1 Krame^v. Sandford (1842), 4 W. & S. (Pa.) 828 ; Creamer v. Perri) 
(1835), 17 Pick. (Mass.) 832 ; Haskell v. Boardman (1864), 8 Allen 
(Mass.), 88 ; Taylor v. French (1855), 4 E. D. Sm. (N. Y.) 458 ; Wilson 
V. Senier, (1861), 14 Wis. 380. 

^Beveling v. Ferris (1849), 18 0. 170; Cf. Marshall v. Mitchell 
(1853), 35 Me. at 223. 

^ Allen-v. Edmundson{iSA%),2^x.(la..2,il'2S; WalherM. Stetson {Wo% 
14 0-. St. 89. 

*Bank of Utica v. Bender (1839), 21 "Wend. (N. Y.) 643 ; Umille v. 
Welch (1859), 29 Mo. 203 ; Walker v. Stetson, svpra. But see Bateman 
V. Joseph (1810), 2 Camp, at 462 ; Herbert v. Servin (1879), 41 N. J. L. 
225, fact. 

'Allen' -v. Edmundson, supra; Williams v. Bank (1829), 2 Pet. 
(U. S.) 96. 

« Mackay v. Judkins (1858), 1 P. & F. 208, Byles, J.; Cf. Arts. 193 and 
194, n. . ■ 

' Beveridge v. Burgis '(1812), 8 Camp. 262 : Spencer v. Bank (1842), 
8 Hill (N. Y.), 620. 



AKT. 200.] DUTIES OF THE HOLDER. 199 

4. A bill is accidentally destroyed before maturity. The Excuses for not 
holder gives notice of the fact to the draper. At maturity the of dislonor. 
holder cannot obtain payment. ' He must give notice .of dis- 
honor to the drawer.' 

Explanation 2. — The fact that the drawer or in- 
dorser sought to be charged has reason to believe that 
the bill will, on presentment, be dishonored, does not 
dispense with the necessity for giving him notice of 
dishonor.^ 

iLLUSTEAflON. 

The drawer or indorser of a bill has notice that the acceptor 
is bankrupt ' or dead.* He is entitled to notice of dishonor. 

Explanation 3. — The bankruptcy or death of the 
drawer or an indorser does not dispense with- the 
necessity for giving notice of dishonor to him or his 
• representatives.^ 

(7.) By waiver express or implied. 
Explanation 1. — Notice of dishonor may be 
waived before the time for giving notice has arrived, 
or after the omission to give notice.^ 
Illusteations. 

1. The drawer of a bill tells the holder before it is due that 
he has no fixed residence, and that he will call in a few days 
to see if the acceptor has paid the bill. This waives notice.' 

1 ThacTcray v. Blackett (1812), 3 Camp. 164 ; Cf. Art. 165. 

^Cf. Carew v. Duckworth (1869), 4 L. R. Ex. at 319 ; and Ai-t. 188. 

' Esdaile v. Sowerby (1809), 11 East, 114 ; Smith v. Becket (1810), 13 
East, 187 ; Juniata Bank v. Hale (1827), 16 S. & R. (Pa.) 157 ; Cedar 
Falls Co. T. Wallace (1880), 83 N. C. 225 ; Cf. French Code, Art. 163. 

'■Barton v. Baker (1815), 1 S. & R. (Pa.) 334 ; Cf. Caunt v. Thompson 
(1849), 18 L. J. C. P. 125 ; French Code, Art. 163 ; Pothier, No. 147. 

^Bhode V. Proctor (1825), 4 B. & C. 517 ; and Art. 198, Expl. 3 ; Ex 
parte TremontBank 16 Binkr. Reg. 397; Smalley v. Wright (1878), 40 N. 
J. L. 471. 

'Ci. CorderyY. Colville (1863), 32 L. J. C. P. 210 ; Sigersony. Matthews 
(1857), 20 How. (LT. S.) 496; Armstrong y. Chadwick [181% 121 Mass. 
156. 

' Phipson v. Kellner (1815), 4 Camp. 284 ; Cf. Burgh v. Legge (1889), 
5 M. & W. 418. 



200 BILLS OF EXCHANGE. [aet. 200. 

Excuses for not 3. The drawer of a bill orders the drawee not to pay it. 
of dislonor. This (probably) waiv|(B notice.' 

3. The drawer. of a bill informs the holder that it will not 
be paid on presentment. This (probably) waives notice.^ 

4. The indorser of a bill receives no notice of dishonor.] 
" Six weeks after the dishonor he meets the holder and promises 1 

to pay the bill. This is a waiver of notice.' 

5. The indorser of a bill, knowing that' no notice of dis- 
honor has been given him, pays part of the amount. This is a 
waiver of notice.* 

6. The indorser of a nota, knowing that no notice has been 
given him, on being asked what is to be done about the note, 
replies, " The note will be paid." This is not a waiver of notice.'' 

7. A., the drawer of a bill, indorses it to C, who indorses it 
to D. On the day of dishonor, but before the. fact of dishonor 
could be known, A., knowing the acceptor to be insolvent, , 
says to C, "I suppose I shall have to take up the bill. If you 
will call with it in a few days I will pay you." D. gives no no- 
tice of dishonor either to U. or A. D. cannot avail himself of 
the promise to C, and sue A." 

8. A., the drawer of a bill, indorses it to C., who indorses it 
to D. Some time after the dishonor. A., who has received no 
notice, is informed by C. that D. the holder is going to sue 
him. A. says he will pay if D. will give him time. This is 
evidence of waiver of notice.' 

Note. — Of.' Art. 131, as to express waiver. Art. 168, waiver 
of presentment. 

1 Hill v. Heap (1823), D. & E. N. P. C. 57 ; Cf. Havens v. Talbot 
(1858), 11 Ind. 323. 

2 Brett V. Levitt (1811), 13 East, at 214 ; Cf. Minium v. Fisher (1857), 
7 Cal. 573 ; Taylor v. French (1855), 4 B. D. Sm. (N. Y.) 458. 

3 Cordery v. Colville (1868), 32 L. J. C. P. 210 ; Bindskopf v. Doman 
(1876), 28 0. St. 516 ; Freeman v. O'Brien (1874), 38 la. 407 : Oivens v. 
Bank (1877), 85 111. 442. 

* Knapp v. Runals (1875), 37 Wis. 135 : Neuherru v. Trowhridqt 
(1865), 13 Mich. 264. 

s Creamer v. Perry (1835), 17 Pick. (Mass.) 332. 

^Pickin v. Graham (1833), 1 Cr. & M. 725. 

' Woods V. Dean (1862), 32 L. J. Q. B. 1. See further, Lecann v. 
Kirkman (1859), 6 Jur. N. S. 17 ; North Stafford Co. v. Wythies (1861), 
2 P. & P. 563 ; Kilhj v. Rochusson (1865), 18 C. B. N. S. 857 : Sheldon* 
V. Horton (1870), 43 N. T. 93 ; Gore v. Vining (1843), 7 Met. (Mass.), ' 
' 212 i Bryant v. micox (1874), 49 Cal. 47. 



AET. 200.] DUTIES OF THE HOLDER. 201 

Explanation 2. — Waiver of notice of dishonor in ^^•Jil^oti'oe"' 
favor of the holder enures for the benefit of parties"^ '"'°''" 
prior to such holder as well as subsequent holders. 

Illusteatiotst. 

C. indorses a bill to D., who indorses it to E. If 0. be sued 
by E., and let judgment go by default, he cannot set up want 
of notice of dishonor if he be subsequently sued by D.' 

Explanation 3. — Waiver of notice of dishonor by 
an indorser does not affect prior parties. 

Illusteation. 

C, the payee of a bill, indorses it to D. D. gives notice of 
dishonor to C. one day late. C. waives the irregularity, takes 
up the bill and gives notice to the drawer. C cannot sue the 
drawer.^ 

Explanation 4. — An acknowledgment of liability 
must be made with full knowledge of the facts in 
order to operate as a waiver of notice of dishonor.^ 

Illustration. 

A bill is rpfused payment at maturity. The indorser prom- 
ises the holder to pay it, not knowing that it had been previous- 
ly dishonored by non-acceptance. This is no waiver. 

Note. — Many of the cases fail to distinguish between ad- 
missions of liability, which are evidence of due notice having 
been received, and admissions of liability when due notice has 
not been given, and which therefore are evidence of waiver. 
The distinction is important.* ' 

' ffahei/ V. GilbeH (1861), 38 L. J. Ex. 170. See Johnson v. Cvane 
(1844), 16 N. H. 174 ; Cf. Art. 194. 

' Turner v. Leach (1821), 4 B. & Aid. 451 ; Cf. Art. 192. 

^ Goodall V. DoUey (1787), 1 T. R. 712 ; Thornton v. Wynn (1827), 12 
Wheat. (U. S.), 183 ; Walker v- Rogers (1866), 40 111. 278 ; Third Nat. 
Bank v. Ashworth (1870), 105 Mass. 503 ; Rindskopf v. Doman (1876), 
2S 0. St. 516. 

"As to what is evidence of due notice, see Taylor v. Jones (1809),- 2 
Camp. 105 ; Hicks v. Beaufort (1888), 4 Bing. N. C. 289 ; Brownell v. 
Bonneij (1841), 1 Q. B. 89 ; Curlewis v. Corfield (1841). 1 Q. B. 814; 
Campbell v. Webster (1845), 15 L. J. C. P. 4 ; Mills v. Gibson (1847), 16 



202 BILLS OF EXCHANGE. [aet. 201,, 

Excuses for de- Art. 201. Delay in givincj notice of dishonor is 

lay in notice, i i • .M 

excused when such delay is caused by circumstancesSi 
beyond the control of the party giving notice, and not 
imputable to his negligence. 

Explanation. — When the cause of delay ceases to 
operate, notice must be given with, reasonable dili- 
gence.^ 

Illtjstbations. 

1. The ihdorser of a bill gives a wrong address, or by his 
conduct misleads the holder as to his address. In consequence 
a notice posted in due time is a long while in ■ reaching him. 
The delay is excused and the indorser is liable.' 

%. The holder of a bill does not know the indorser's ad- 
dress. Delay occupied in making inquiries is excused,* 

Note. — For further illustration and authority see Art. 169, 
and Art. 193. This article is an obvious deduction from the 
general rule (Art. 195) that notice of dishonor must be given 
■within a reasonable time. The old system of pleading recog- 
nized the difference between excuses for delay and excuses for 
non-notice.^ When the delay is caused by the negligen9e of 
the party to whom notice is sent, it is conceived that though 
that party is liound he cannot give an effectual notice to ante- 
cedent parties." 

Overdue Jiill. — In America it is held that when a bill is in- 
dorsed after itg maturity, the indorser is entitled to have it 
presented for payment, and to receive notice of dishonor with- 
in a reasonable time, he in effect having indorsed a bill pay- 

L. J. C. P. 249 ; Jackson v. Collins (1848), 17 L. J. Q. B. 142 ; Bartholo- 
mew V. Hill (1862), 5 L. T. N. S. 756, As to what is not, Borradaile v. 
Loive (1811), 4 Taunt. 93 ; Braithwaite v. Coleman (1835), 4 Nev. & M. - 
654 ; Bell V. Franhis (1842), 4 M. & G. 446 : Holmes v. Staines (1850), 
8 C. & K. 19. 

^ Firth Y. Thrush (18281. 8 B. & C. 387 ; Gladwell v. Turner (1870), 
5 L. R. Ex. at 61 ; McVeigh v. Allen (1877), 29 Grat. (Va.), 588 ; Cf. 
Art. 169. 

^Hewitt V. Thompson (1836), 1 M. & Bob. 543 ; Berridge v. Fitzgerald 
(1869), 4 L. R. Q. B. 639. 

* Baldwin v. Richardson (1823), 1 B. & C. 245 : Fugitt v. Mxon 
(1869), 44 Mo. 295. 

^ Allen v. Edmundson (1848), 2 Exch. at 723. 

«Cf. Shelton v. BraUhwaite (1841), 8 M. & W. at 2hAr%hh. 



ART. 202-3.] DUTIES OF THE HOLDER. 203 

able on demand ;' aliter, if an indorser take up a dishonored Excuses for de- 
bill and re-issue it on his original indorsement, for his liability ^"""*''^''' 
is already fixed.'' Under German Exchange Law, Art. 16, the 
indorser of an overdue bill incurs no mercantile engagement. 

Art.- 202. Where laws conflict, the validity of a conflict of 
notiqe of dishonor, both as to form and time, is (prob- 
ably) determined by the law of the place where the 
notice is given.^ 

iLLTJSTEATIOlir. 

A., in England, draws and indorses to C. a bill payable in 
Spain. C. indorses it to D., in Spain. It is presented for ac- 
ceptance and dishonored. Fifteen days afterwards, D. gives 
notice of dishonor to C, who itnmediately gives notice, to A. 
By Spanish law no notice -of dishonor by non-acceptance is 
necessary (Of. Art. 157 n.). C. is liable to D., and if he pays 
him, he can sue A.* 

Note. — It would be convenient to hold generally that the 
duties of the holder are to be determined by the law of the 
place where they are performed, but the cases certainly have 
not yet gone so far as this. 



Notice to charge Acceptor, Maker, or Stranger. 

, Art. 203. The acceptor of a bill is not in any case Notice to ac- 
entitled to notice of dishonor.^ essary. 

Illusteation. 

B. accepts a bill payable at his bankers. It is presented 
there and dishonored. No notice need be given to B.' 

1 Patterson v. Todd (1852), 18 Pa. St. 433 ; Ught v. Kingshurii (1872). 
50 Mo. 331 ; McKewer v. Kirtland (1871), 83 la. 348 ; Of. Art. 162. 

^St. John v. Roberts (1865), 31 N. T. 441 ; Cf. Ubbeu v. Pierce (1867), 
47 N. H. 309. 

3 Hirschfield v. Smith (1866), 1 L. R. C. P. 340 ; Aymar v. Sheldon 
(1834), 12 Wend. (N. T.), 439 ; Nat. Bank v. Green (lS71), 33 la. 140 ; 
Pothier, No. 155. Contra, Ellis v. Commercial Bank (1843), 7 How 
(Miss.) 294. Cf. Art. 180. 

^Hnrne v. Rouquette (1878). 3 L. R. Q. B. D. 514, C. A. 

= Cf. Rowe V. Tipper (1853), 22 L. J. C. P. at 137; Pearse v. Pem- 
berthi/ (1812), 3 Camp. 261, maker. 

« Treacher v. Hinton (1821), 4 B. & Aid. 413. 



204 BILLS OF EXCHANGE. [aet. 204, 

Guarantor. Art. 204. Notice of dishonop is not a conditiou 

precedent to the liability of a person who has givea 
a guarantee for the payment of a bill by the acceptor. 
Cf, Art. 173. 

Illtjsteatioh-s. , . 

1. The indorser of a bill gives a bond to secure its payment. :! 
Want of notice of dishonor is no defense to an action on the 
bond.' 

3. X. gives a guarantee for the price of goods to be sup- 
plied to the acceptor of a bill. X. is not entitled to notice of 
dishonor.^ 

3. X. gives a guarantee for the price of goods to be sup- 
plied to the drawer of a bill. X. is entitled to notice of dis- 
honor.' 

4. X. guarantees the payment of a note " if it be not duly 
honored and paid " by the maker. X. is not entitled to notice 
of dishonor.* 

Note. — In America the authorities conflict. No case has 
yet arisen calling for a decision on the necessity of notice to 
charge a guarantor of the contract of a party secondarily liable 
as drawer or indorser, but we cannot conceive how a guaran- 
tor could be held^ liable when the indorser whose contract he 
guaranteed has been discharged by failure to give noticp to 
him of the acceptor's default. But why the guarantor should 
be held entitled to notice in such case, as held in Phillips v. . 
Astling,^ is not so clear.^ As to the liability of a guarantor of 
the contract of a party primarily liable as acceptor or maker, 
there are two classes of cases (1), Notice to the guarantor is 
held a condition precedent to his liability, but it may be given 
at any time before suit. If, however, the guarantor is damaged 
by the delay in giving notice, he is discharged to the extent of 
the damage." (3), But by the weight of authority, notice is 

> Murray v. King (1821), 5 B. & Aid. 165 ; F.&M. Bank v. Kerche- 
ml (1853), 2 Mich. 504. 

"Holbrow-r. Willcms (1822), 1 B. & C. 10. 

^ Phillips Y. Astling (ISO?), 2 Taunt. 206; Cf. Hitchcock v. Humfrey 
(1843), 5 M. &.G. at 564. Sed m. ? see note infra. 

iF'oZJorav. Jf«scai!Z(1844), 13M. &W. 7?, see, also, at 452. 

' See Bigelow, p. 140. 

« Geiger v. Clark (1859), 13 Cal. 579 ; Crooks v. Tully (1875), 50 Cal. 
254 ; Foote v. BrQwn (1841), 2 McL. (C. Ct.) 369 ; Cf. Bickford v. Gihbs 
(1851), 8 Gush. (Mass.) at 156 ;• Ilshy v. Jones (1858), 12 Gray (Mass.), 
260. 



AET. 205.] DUTIES OF THE HOLDER. 205 

not a condition precedent to his liability, but the guarantor is Guarantor, 
discharged to the extent he is damaged by failure to give him 
reasonable notice of the principal's default.^ It is prudent to 
give a guarantor some notice. See Story, Notes, 7th ed. § 460, 
note, for a clear presentation of this subject. 

' Art. 205. A person who is not a party to a bill, but Person liatie 

• Til 1 .1 ./. ,.,.. on considem- 

wno IS liable on the consideration for which it is «<>•>• 
given,^ is (probably) entitled to notice of dishonor. 
Cf. Art. 174. 

Illusteations. 

1. X. buys goods from D. to be paid for "by approved Bank- 
er's bill." C, who is X.'s broker, obtains a banker's^ bill payable 
to his own order and indorses it to D. If the bill be dishonored, 
X. (probably) is not liable for the price of the goods, unless he 
receives notice of dishonor.' 

2. C, the holder of a note payable to bearer on demand, 
transfers it to D., without indorsing it, to pay for goods sup- 
plied by D. If the note be dishonored, 0. is not liable for the 
price of the goods, unless he receive notice of dishonor.* 

Note. — It seems from the last cited cases* that the same strict 
and technical notice of dishonor is not requisite to charge a per- 
^ son liable on the consideration as is requisite to charge a party 
liable on the bill. This is fair, for in the one case the liability 
is transferable, in the other it is not, and therefore all defenses 
between the parties can be inquired into. A distinction might 
be drawn between persons liable on the consideration who have, 
and who have not been holders of the bill.* 

^BrovmY. Curtis (1849), 2 N. T. 225 ; Second Nat. Bank v. Gaylord 
(1872), 84 la. 246 ; McDonald v. Scott (1871), 8 Kans. 25 ; Voltz v. Har- 
ris (1866), 40 111. 155 ; Gage v. Lewis (1873), 68 111. 605 ; Newton W. Co. 
V. Diers (1880), 10 Neb. 284. 

"Of. Arts. 224, 226. 

' Smith V. Mercer (1867), 3 L, R. Ex. 51 ; contra Swinyard v. Bowes 
(1816), 3 M. & S. 62, not cited. 

^Camidge v. Allenby (1827), 6 B. & C. 373 ; Turner v. Stones (1843), 
1 D. & L. 122 ; Rolson v. Oliver (1847). 10 Q. B. 707, cases on country 
bank notes ; Dayton v. Trull (1840), 2J Wend. (N. Y.) 845 ; Cf. Art. 225. 

' Id. at 381. 



206 ., BILLS OF EXCHANGE. [Aet. 206. 

• Duties on receiving Payment. 

Duty to give up Art. 206. It is the duty of the holder to deliver up 
the bill when it is paid in due course, by or on behalf 
of the drawee or acceptor.^ Cf Art. 165. 
Exception 1. — Non-negotiable note.^ 
■Exception 2. — The person who was the holder of a 
bill is (perhaps) entitled to receive payment, without 
giving it up, on proof of its destruction.^ 

Note. — Cf. Art. 144 as to lost bills, and Arts. 27 and 39 as 
to the parts of a set. Giving up the bill is a concurrent condi- 
tion, and not a condition precedent to payment. German Ex- 
change Law, Arts. 38-39, provides that .the holder must take 
part payment if it be offered. In that case he may retain the 
bill, but must indorse upon it the amount he has received. 

1 Barnard v. Robinson (1827), 7 B. & C. at 94 ; Otlsfield v. Ma^lerrg 
(1874), 63 Me. 197 ; Crowe v. Clay (1854), 9 Exch. 604, Ex. Ch.; Oceak 
Bank v. Fant (1871), 50 N. T. at 476 ; Crandall v. Schroeppel (1874 , 
1 Hun (N. Y.), 557 ; Arnold v. Dresser (1864), 8 Allen (Mass.j, 435 ; 
G-erman Exchange Law, Art. 39 ; Cf. Jones v. Broadhurst (1850), 9 C. 
B. at 182, as to payment by drawer or indorser ; and. Comer v. Taylor 
(1854), 10 Exch. 441 ; Moodward v. Pell (1868), 4 L. R. Q. B. 55, lien for, ( 

^C'hamley v. Grundy (1854), 14 C. B. at 614; Cf. Art. 107. 
' Wright v. Maidstone (1855), 24 L. J. Ch. 623. 



CHAPTEE VI. 

LIABILITIES OP PARTIES. 



Drawee and Drawer. 

Art. 208. The drawee of an unaccepted bill of ex- Duty to accept 
change is not bound to accept or pay it, unless he lias 
for valuable consideration expressly or impliedly 
agreed so to do. If he has so agreed his relations 
with the drawer are regulated by the terms of the 
particular agreement between them.^ 

Exception. — Check on a banker.^ 

Note. — In some continental countries the duty to accept or 
pay bills arises from the mere relationship of debtor and credi- 
tor in a mercantile transaction ; ' whereas, here there must be 
an agreement founded on consideration. Apart from some- 
thing special in the contract, it seems that the authority or ob- 
ligation to accept is not revoked by the death of the drawer,* 
■while it is by notice of his bankruptcy ; for this renders funds 
in the hands of the drawee no longer available for the payment 
of the bill, and incapacitates the drawer from fulfilling his part 
of the contract.^ The bankruptcy of the drawee is not per se 

" CMttij, p. 200 ; Cf. Goodwin v. Robarts (1875), 10 L. R. Ex. at 351, 
Ex. Ch. ; see e.g., Smith v. Brown (1815), 6 Taunt, at 344 ; Laing v. Bar- 
clay (1823), 1 B. & C. 398; Huntley v. Sanderson {\%i'd), 1 Cr. & M. 467 
(agent authorized to draw on principal ; contract of indemnity) ; Biggs v. 
Lindsay (1813), 7 Cranch (D. S.), 500 ; Gumming v. Sfcnrf (1860), 29 L. 
J. Ex. at 132 (implied agreement to let customer overdraw) ; English 
Credit Co. v. Arduin (1871), 5 L. R. H. L. 64 (construction of credit). 

^ Art. 260 ; Cf. Goodwin v. Bobarts, supra. 

' Bothier, No. 92 ; Nouguier, § 442 ; Belgian Code de Commerce, 
Art. 8. 

« Chitty, p. 198 ; Stort/, § 250 ; Cutis v. Terhins (1815), 12 Mass. 206 ; 
Cf. Billings v. Devaux (1841), 3 M. & ,Gr. at 574 ; Att.-Genl. v. Pratt 
(1874), 9 L. R. Ex. 140. 

" Bothier, No. 96 ; Cf. Citizens' Bank v. New Orleans Bank (1873), 6 
L. R. H. L. 352. Contra in case of check. Roberts v. Corbin (1868), 26 
la. 315. 

(207) 



208 



BILLS OF EXCHANGE. 



[aet. 209. 



Duty to accept a breach of contract with. the drawer.' In France the engage- 
orpay. ment between drawer and drawee is held to be a contract of 

" mandat," and their relations are regulated accordingly.'' Let- 
ter qf Advice. — It is usual, but not necessary, for the draw- 
er to advise the drawee of drafts drawn on him by letter of 
advice.' 

Measure of Alt. 209. When the drawee breaks his contract 
dfawee ^^^^ *-^® drawCT by dishonoring his draft, the conse- 
quences reasonably resulting from the breach of con- 
tract constitute the measure of damage.* 

Illustkationb. 

1. A customer having a balance of $300 at his banker's 

draws a check for $100, or accepts a bill for $100 payable at 

his bankers. If this check or bill is dishonored he may recover 

substantial damages for the injury to his credit, without proy- 

/ ing any actual loss.' 

2.' A., in a foreign country, draws on B., in England, undier 
a, letter of credit. B. dishonors his draft. A. may recover the 
re-exchange and notarial expenses which he has had to pay to 
the holder,' and also the cost of telegrams, etc., consequent on 
the dishonor.' 

Note. — Although an acceptor, as such, may not be liable for 
re-exohange, it is cleat that the drawee by acceplSng. cannot 
alter or escape from his special contract with the drawer ; and 
this- may be the ground of his liability for re-exohange, etc., 
when sued by the drawer. Cf. Art. 313, n. 

1 Be Agra Barih (1867), 5 L. R. Eq. 160. 

^ PotUer, Nos, 91-100 : Brai-ard-DemangeaU 7 ed. 219 ; Code Civil, 
Art. 1984-2010. 

8 Arnold v. Chech Bank (1876), 1 L. B. C. P. D. at 586 ; Nouauier, 
§271-284: ' n > 

^Prehn v. Bot/al Batik (1870), 5 L. E. Ex. 92 ; Cf. Eslei/ v. Jones 
(1858), 12 Gray (Mass.), 260, accommodation bill. 

^MolUn V. Steward (l854), 23 L. J. G. P. 148 ; Cf. Cumming v. Shand 
(1860), 29 L. J. Ex. 129 j Summers v. City Bank (1874), 9 L. R. C. P. 
■580 ; Roberts y. CorUn (1868),.26 la. 315. 

' Walker v. Hamilton (1860), 1 DeG. F. & J. 602 : Re General So. Am. 
Co. (1877),' 7 L. R. Ch. D. 637. 

Trehn v. Royal Bank, supra. 



'AET. 210.] LIABILITIES OF PARTIES. 209 



Drawee and Holder. 
Art. 210. The drawee of a bill, as such, incurs n o no privity be- 

1.1 111T 11 ■ •• n tween dvawee 

liability to the holder, and there is no privity oi con- and Voider, 
tract between them.^ 

Illusteatioit. 

A., having $100 at his banker's, draws a check on them for 
that sum in favor of C. The check is dishonored. 0. has no 
remedy against the bankers.^ 

Note. — Similarly, when a bill is accepted payable at a 
banker's, there is no privity between the drawer or holder and 
the acceptor's banker.* In France, when the drawee has funds, 
drawing a bill operates as an assignment of them in favor of 
the holder, and creates a privity between holder and drawee.* 
And it is held in America that where a bill is drawn for the 
whole of a particular fund, or for the entire iudebtedness of 
drawee to drawer, it operates as an equitable assignment there- 
of, and binds the fund in drawee's hands after notice of the as- 
signment.* 

Explanation. — Such privity may be created by agree- 
ment external to the bill, and tlie relations of the parlies 
are then regulated by the terms of such agreement.® 

' Hophinson v. Forster (1874),- 19 L. R. Eq. 74 ; Chapman v. White 
(1852), 6 N. Y. 412 ; Chase v.- Alexander (1879), 6 Mo. Ap. 505 ; Wein- 
stock Y. Bellwood (1876), 12 Bush (Ey.), 139 ; First Nat. Bank v. 
Dubuque Ey. Co. (1879), 52 la. 378 ; Cf. Vaughan v. Hallidaij (1874), 9 
L. E. Ch. 561 ; Exchange Bank v. Bice (1871), 107 Mass. 37. , 

Hd ; Schroeder v. Bank (1876), 34 L. T. N. S. 735 ; Cah v. Nat. 
Bank (1871), 107 Mass. 45 ; Bank v. Millard (1869), 10 WaU. (U. 
S.), 152 ; First Nat. Bank v. Whitman (1876), 94 U. S. 343 ; In re Mer- 
rill (1877), 71 N. Y. 825 ; Cf.. Griffin v. Kemp (1874), 46 Ind. at 175. 
Cortra, whether check is for whole or part of deposit, Roberts v. Corbin 
(1868), 26 la. 315 ; Union Nat. Bank v. Oceana Bank (1875), 80 lU. 212; 
McGrade v. German Sav. Inst. (1877), 4 Mo. Ap. 330 ; Lester v. Given 
(1871), 8 Bush (Ey.), 357. 

^Hill v. Royds (1869), 8 L. R. Bq. 290. 

* Bravard-bemangeat, 7th ed. 285 ; Nouguier, | 892-431. 

' Cf. Mandeville v. WeUh (1820J, 5 Wheat. (U. S.) at 286 ; I/iiff v. 
Pope (1843), 5 Hill (N. Y.), 413 ; Bank v. Bogy (1869), 44 Mo. 13 : Gib- 
son v. Cooke (1838), 20 Pick. (Mass.), 15. 

^Rdbey v. Oilier (1872), 7 L. R. Ch. 695 ; Ranken v. Alfaro (1877),5 
L. E. Ch. D. 786. 

14 



210 



BILLS OF EXCffANGE. 



[ART. 211-12. 



No privity be- 
tween drawee 
and bolder. 



Illusteations. 

1. B. gives A. an open letter of credit authorizing him to 
draw to the extent of $10,000, and concluding " parties nego- 
tiating bills under it are requested to indorse particulars on the 
back hereof." A. accordingly draws 3 bill for $500 in favor 
of C, who duly indorses the particulars on the credit, B. be- 
comes insolvent, and dishonors the bill on presentment. 0. 
can prove for $500 against B.'s estate.' 

3. A. draws a bill on B. in favor of C, and remits funds to 
meet it. B. does not accept the bill, but he tells C. that he has 
received the funds and promises to pay the bill. B. does not 
pay the bill. No action oh the bill can be maintained against 
B., the statute requiring acceptance to be in writing on the 
bill, but C. can sue B. for money received to his use.^ 



Acceptor's con- 
tract with 
holder. 



Acceptor's es- 
toppels. 



Acceptor and Holder. 

Art. 211. The drawee of a bill of excliange be- 
comes by accepting it, the principal debtor tbereon.^ 
As acceptor he undertakes that he will pay it accord- 
ing to the tenor of his acceptance.* 

Note. — See the primary and absolute liability of an acceptor 
distinguished from the secondary and contingent liability of a 
drawer or'indorser by Bayley, J.,* and Cresswell, J.° As to the 
mutual relations of joint acceptors, see per Wilde, C. J.' See, 
also. Arts. 38-40, as to general and. qualified acceptances! and 
Art. 173, as to presentment for payment to charge acceptor. 

Art. 212. The acceptor of a bill of exchange by 
the fact of acceptance conclusively admits and war- 
rants to a bona fide holder — - 

• He Agra Bank (1867), 2 L. R. Ch. 391 ; Cf. Citizms' Bank v. N. 0. 
Bank (1873), 6 L. R. H. L. 3-52. 

2 Griffin V. Weatherby (1868), 3 L. R. Q. B. 753. 

^Philpot V. Bryant (1828), 4 Bing. at 720. 

" Smithv. Vertue (1860), 30 L. J. C. P. 56 ; see at 60, pet Byles, J. ; Cf.- 
Walton V. Mascall (1844), 13 M. & W. at 458, Parke, B.; Cf. French 
.Code, Art. 121 ; German Exchange Law, Art. 23. 

'Rowe V. Ymng (1820), 2 Bligh. H. L. at 467. 

« Jones V. Broadhurst (1850), 9 C. B. at 81. 

'Harmer v. Steele (1849), 4 Exch. at 13. 



AET. 212.] LIABILITIES OF PARTIES. 211 

(1.) The existence of the drawer, the genuineness AoMptor'ses- 
of his signature, and his capacity and author- 
ity to draw.^ 

Illttsteations. 

1. A bill purporting to be drawn by A. on B. in favor of C. 
is accepted by B. and then negotiated. B., the acceptor, can- 
not set up that A.'s signature is a forgery.^ 

2. A bill is drawn by A. on B. in favor of C. 0. alters the 
amount from $10 to $100, and then indorses it away. B. sub- 
sequently accepts it. 5'> notwithstanding his acceptance, may 
set up the alteration as a defense.' 

Note. — But this rule has been materially modified by hold- 
ing that this admission of the genuineness of the drawer's sig- 
nature is conclusive (1), only in favor of a holder who is not only 
bond fide, but who has not contributed by his own fault or negli- 
gence to the loss or misled the acceptor into the belief that the 
signature was genuine,* and (3), only in favor of a holder who 
took the bill after the acceptance." 

(2.) In the case of a bill payable to drawer's order, 
the then capacity of the drawer to indorse,® but 
. not the genuineness of his indorsement,'' or 
(apparently) his authority to indorse.* 

' Cooper V. Meyer (18?!0), 10 B. & C. 468 ; Nat. Park Panic v. North 
Bank (1871), 46 H. Y. 77 ; Cf. Allen v. Kramer (1878), 2 Bradw. (111.) 
205 (check). 

2 Id.; Sanderson v. Collman (1842), 4 M. & Gr. 209 ; Goddard v. Bank 
fl850), 4 N. Y. 147 ; Howard v. Bank (1876), 28 La. An. 727 : Cf. Orr 
v. Bank (1854), 1 Macq. H. L; 513 ; Hortsman v. Henshaw (1850), 11 
How (TJ. S.), 177 ; Peoria R. R. Co. v. Neill (1855), 16 lU. 269. 

' White V. Cont. Bank (1876), 64 N. Y. 316 ; Bank of Commerce v. 
Union Bank (1850), 3 N. Y. 230 ; Redington v. Woods (1873), 45 Cal. 
406 ; Cf. Burchfield v. Moore (1854), 23 L. J. Q. B. 261. Aliter, if 
drawer consent to alteration, Ward v. Allen (1840), 2 Met. (Mass.) 53. 

^ Nat. Bank v. Bangs (1871), 106 Mass. 441 ; Cf. Ellis v. Ohio Trust 
Co. (1855), 4 0. St. 628. 

^McKleroy v. Bank (1859), 14 La. An. 462. 

'Braithwaite-v. Gardiner (l8i^), 8 Q. B. 4T3, less bankrupt ; Smith v. 
Marsack C184S), 18 L. J. C. P. 65, married woman; Halifax v. Lyle 
(1849), 3 Exch. 464, corporation not having power to issue bills. 

' Beeman v. Duck (1843), 11 M. & W. 251 ; Cwnal Bank v. Bank 
(1841), 1 Hill (N. Y.), 287 ; Cf. Smith v. Chester (1787), 1 T. R. 654, and 
passim, Robartsv. Tucker (1851), 16 Q..B. 560. 

^ Robinson Y. Yarrow (1817), 7 Taunt. 455, bill drawn and indorsed 



\ 



212 



BILLS OF EXCHANGE. 



[aet. 213. 



Acceptor's es- 
toppela. 



Damages 

against 

acceptor 



Note. — The distinction between capacity and authority (Cf. 
Art. 61) reconciles the cases. It is clear that capacity to draw 
must coincide with capacity to indorse, this beipg a question of 
status ; while an authority to draw on behalf of another need 
not include an authority to indorse. The evidence, of course, 
may create an estoppel where the acceptance does not (Cf. 
Arts. 81, 139). When the 'drawer of a bill payable to drawer's 
order is a fictitious person, the acceptor probably undertakes to 
pay to an indorsement in the same handwriting as the drawer's 
signature.' 

(3.) (Probably) in the case of a bill payable to a 
third person, the existence of the payee and 
his then capacity to indorse,^ though not the 
genuineness of his indorsement.^ 

Note. — But if the forged indorsement was on the bill when 
issued by the drawer, the acceptor cannot set up the forgery in 
defense to the suit of a bond fide holder, since the forgery is 
the drawer's own act, and the acceptor is entitled to charge him 
with the payment of the bill.* The point as to the admission 
of payee's capacity has not arisen fairly. The maker of a note 
warrants the then capacity of the payee, but maker and payee 
are immediate parties, while acceptor and payee are not. The 
acceptor of course may be estopped by the evidence : see Kjt. 
139 as to fictitious payee ; see also Art. 81 for cases where a 
man may be precluded from saying that a false signature is not 
his own. 

Art. 213. The acceptor of a bill of exchange who 
dishonors it is liable for — 

(1.) The amount of the bill with interest {a) from 
the maturity thereof if the bill be payable on 
a day certain,^ or {b) from the time of present- 

"perproo." without authority ; Garland v. Jacomh (1873), 8 L. R. Ex. 
216, Ex. Ch. bill drawn and indorsed by partner in non-trading firm with- 
out authority. 

1 Cooper V. Meyer (1830), 10 B. & C. 468 ; but see dicta that such a 
biU is payable to bearer, Beeman v. Duck, (1843), 11 M. & W. at 256 ; 
Cf. Phillips V. Im Thurn (1866), 1 L. R. C. P. at 471. 

^Byles, p. 199 ; Daniel, § 636 ; Cf. Drayton v. Dale (1823), 2 B. & C. 
293 at 299 v /» 

' Holt y'. Boss {181B), 54 N. T. 472; Cf. Bobarts v. Tucker (1851), 16 
Q. B. 560, Ex. Ch. 

" Hortsman v. Henshaw (1850), 11 How (U. S.), 177. 

^Uthgo V. Lyon (1805), Coop. Ch. Ca. 29 ; Laing v. Stone (1828), 2 M. 
& Ry. 562 ; Cf. Ayer v. Tilden (1860), 15 Gray (Mass.), at 183. 



AET. 213.] LIABILITIES OF PARTIES. 213 

ment for payment if the bill be payable on de- '^^^^1^ 

mand.^ acceptor. 

Explanation. — Interest in the nature of damageis 
may, if justice require it, be withheld wholly or in 
part,^ and when a bill is expressed to be payable with 
interest at a given rate, interest as damages may or 
may not be given at the same rate as interest 
proper.^ 

Note. — While the American authorities do not directly deny 
this doctrine, yet many cases hold that the holder is entitled to 
recover interest after maturity at the rate expressed in the bill, 
apparently on the ground. thai it is a part of the contract of the 
parties.* Other cases hold that he is entitled to recover only 
legal interest at place of suit,* whether it be more or less than 
the rate specified.* As to interest proper see Art. 13, Expl. 4. 
The bill must be produced at the trial to entitle the plaintiff to 
interest before writ.' By French Code, Art. 184, interest runs 
against all parties from the day of protest for non-payment. 

(2.) As special damage, the notarial expenses con- 
sequent on dishonor,* and (perhaps) the loss 

1 Ee East of Eng. Banking Co. (1868), 4 L. R. Ch. 14 ; Patrich v. Clay 
(1815), 4 Bibb (Ky.), 246 ; Of. Eenss Factory v. Ueid (1825), 6 Cow. (N. 
Y. 589. But see Pullen v. Chase (1841) 4 irk. 210 (from date). 

'Laing v. Stone, (1828), 2 M. & Ry. 562; see, also e.g., Dent v. Dunn 
(1812), 3 Camp. 296, tender ; Murraij v. East India Co. (1821), 5 B. & 
Aid. 204, holder dead and payment not demanded; Phillips v. Frank- 
lin (1828), Gow.196, bill payable specially, no demand at place of pay- 
ment proved ; Cf. Bann v. Dalyell (1828), M. & M. 228; Ai/er v. Til- 
den, (1860), 15 Gray (Mass.) at 183 ; Owsley v. Greenwood (1872), 18 
Minn. 429. But Cf. Brannon v. Hursell (1873), 112 Mass. at 71. 

^Keene v. Keene (1857), 27 L. J. C. P. 88; see Ward v. Morrison 
(1842), Car. & M. 368, rate reduced. 

^ Cromwell v. Co. of Sac. (1877), 96 U. S. 51 explaining Brewster v. 
Wakefield (1859), 22 How. (U. S.) 118 ; Brannon v. Hursell {19,1%), 112 
Mass. 68 ; Mmmett v. Sturges (1874), 25 0. St. 384 ; Kohler v. Smith 
(1852); 2 Cal. 597 ; Pruyn v. Milwaukee (1864), 18 "Wis. 367. 

'AyerY. Tilden (1860), 15 Gray (Mass.), 178. 

" Eaton V. Boissonault (1877), 67 Me. 540 ; Moreland v. Lawrence 
' (1876), 23 Minn. 84 ; Neivton v. Kinnerly (1876), 81 Ark. 626. 

' Hutton V. Ward (1850), 15 Q. B'. 26. 

* Ticknor v. Branch Bank (1841), 3 Ala. 135 ; Bowen v. Stoddard 
(1845), 10 Met. (Mass.), 875 ; Cf. Kendrick v. Lomax (1832), 8 Cr. & J. 
405, noting aa»d postage. Aliter, if no drawer or indorser whom protest 
is necessary to charge, German v. Ritchie (1872), 9 Kans. 106 ; Cramer 
V. Eagle' Mfg. Co. (1880), 23 Kan. 899. 



214: BILLS OF EXCHANGE. [aet. 214-15. 

agS^acoept- ^^ re-exchangG incurred by an indorser who = 

"'■ has taken up or paid the bill/ 

Note. — The decisions might be reconciled by holding that 
the acceptor, as such, is not liable to the holder for re-exchange, 
but that he ,is. liable to the drawer for re-exchange by reason of 
the special contract between drawer and drawee, see Art. 309; 
but perhaps the older oases would now be overruled if the point 
was raised directly. 

Conflict ofiaws Art. 214. When laws conflict the measure of 

as to damage, . . . . 

damage against the acceptor is determined by the law 
of the place of payment. 

Illustration. 

A bill drawn and accepted in France is by the acceptance i 
made payable in London. Darfiages against the acceptor are 
to be assessed according to English law.^ 



Drawer or Indorser and Solder. 

General liabiii- Art. 215. The drawer of a bill of exchange en- 
gages that on due presentment it shall be accepted 
and paid according to its tenor, and that if it be not 
so accepted and paid he will indemnify the holder, 
provided due notice of dishonor be given. 

Note. — By statute in England, the drawer and indorsers of 
a bill are jointly and severally responsible to the holder for the 
due acceptance and payment thereof,^ and similar statutes al- 

'iJe General S. A. Co. fl877), 7 L. E. Ch. D. 637, see at 644 ; Biggs 
V. Lindsay (1813), 7 Cranch (U. S.) 500 ; Cf. Bowen v. Stoddard, supra, 
at 379 ; Pothier, No. 117 ; Story, § 398. Contra, Napier v. Schneider 
(1810), 12 East, 420 ; Woolsey v. Crawford (1810), 2 Camp. 445 ; Daw 
son V. Morgan (1829), 9 B. & C. at 620 ; Watt v. Riddle (1839), 8 Watts 
(Pa.j, 545 ; Byles, p. 412. 

2 Cooper V. Waldegrave (1840), 2 Beav. 282 ; Frazier v. WarfieU 
(1848), 9 Sm. & M. 220 ; Campbell v. Nichols (1868), 33 N. J. L. 81 ; 
Watt V. Riddle (1839), 8 Watts (Pa.), 545. But see Ayer v. Tilden 
(I860), 15«Gray (Mass.), 178. 

^Cf. 18 & 19 Vict. c. 67, § 6 ; Rouquette v. Overman (1875), 10 L. R. 
Q. B. at 537 ; French Code, Art. 118 : German Exchange Lajr, Arts. 
8,49. ^ 



AET. 216-17.] LIABILITIES OF PARTIES. 215 

lowina: an action against all the parties iointlv, have been GeneraiiiaWii- 
passed in many states. See the liabilities of the drawer stated * ' 

in general terms by Lord Lyndhurst,' Parke, B.,^ Loid Kings- 
down,* Cresswell, J.,* and Alderson, B.° The liability of the 
drawer of an accepted bill must in general be measured by 
that of the acceptor, their relations being those of principal and 
surety.* 

Art. 216. The drawer of a bill of exchange pa j- Drawer's es- 
able to the order of another person, by the fact of 
drawing it, conclusively admits and warrants to a 
bona fide holder the existence of the payee and his 
then capacity to indorse.' 

Art. 217. Any person who signs a negotiable bill ^§°^^^^« ^' 
otherwise than as drawer or acceptor prima facie, in- 
curs the liability of an indorser. Cf. Arts. Ill, 112. 

Exception. — Indorsement by way of receipt.* 

Illustrations. 

1. D. is the holder of a bill already indorsed in blank and 
therefore negotiable by mere delivery. He indorses it to E. 
D. thereby incurs the liabilities of an indorser.' 

2. B. makes a note payable to 0. or order. After it is issued, 
D., to accommodate the maker, signs his name on the face of 
the note.. D. is liable as an indorser.^" 

3. B. and 0. are indebted to A. A. draws a bill for the 
amount on B., payable to his own order, and indorses it in 
blank. B. accepts the bill. C. also writes his name on the face 

' Siggers v. Lewis (1834), 1 C. M". & R. at 371, cause of action. 
. 2 Whitehead v Walker {1842}, 9 M. & W. at -516, non-acceptance. 

' Allen Y. Kemble (1848), 6'Moore P. C. at 821, eorhpensatio. 

* Jones V. Broadhurst {l%hQ\ 9 C. B. at 181, payment. 

' G-ilbs v. Fremont (1858), 9 Bxch. at 30, damages. 

^Eouquette v. Overman, supra at 536 ; but Cf. MellishY. Simeon (1794), 
2 H. Bl. 378, for an exception. 

■ Collis V. Emmet (1791), 1 H. Bl. 313 ; Cf. Phillips v. Im Thurn 
(1865), 18 C. B. N. S. 694, see at 701 ; Cf. Arts. 139 and 287. 

« Clark V. Whiting (1877), 45 Conn. 149 ; Cf. Keene v. Beard (1860), 
8 C. B. N. S. at 382, Byles, J. 

' Cf. Fairclough v. Pavia (1850), 9 Exoh. at 695, and Arts. 109, 119. 

^^ Ex parte Yates (1858), 2 t)e G. & J. 191 ; Cf. Gwirmell v. HerheH 
(1836), 6 N. & M. 723. But see next note. 



216 BILLS OF EXCHANGE. [abt. 217, 

Who liable as of the instrument. If B. does not pay it, C may Le sued as 

indorser. . , , 

indorser.' 

4. C. signs his name on the back of a blank stamped paper. 

It is afterwards filled up as a bill for $100. C. is liable as an 

indorser of that bill.'' 

, Note. — What is the liability of a person who indorses in 

blank a bill or note payable to order (Of. Illust. 3, supra^ at a 
time when he is not the payee or holder? He is not strictly an 
indorser, but he is called a quasi-indoiser, and his act, an ir- 
regular or anomalous indorsement. Without attempting to give 
the exact shades of diiference which divide the American 
courts on the question of his liability, the two leading views 
may be thus stated in brief (1), In a few of the States, as well as 
in England, he primd facie incurs the liability of an indorser, 
but parol evidence is admissible of the intention of the parties, 
which, when ascertained, determines his liability.' (3), But 
by the weight of authority, he is liable as a joint promisor or 
co-maker if he indorsed the note before it was issued, and it is 
so presumed, but if shown to have indorsed it after its issue, 
he is liable as guarantor ; but in both cases evidence is admis- 
sible of the real intention of the parties, which, when ascer- 
tained, determines his liability.* Some courts, however, hold 
evideuce inadmissible to vary the contract thus implied by 
law.^ It would not (perhaps) be admissible against a remote 
party.' A few courts hold that the quasi-indorserjortrnf? /ade 
incurs the liability of a guarantor,' while others hold that the 

^Ymngv. Glover (1857), 3 Jur. N. S. 637, Q. B.; Cf. Jackson v. Hud- 
son (1810), 2 Camp. 447 ; Bigelow v. Colton (1859), 13 Gray (Mass.); 809; 
Dubois V. Mason (1879), 127 Mass. 37 ; Soberts v. Masters (1872). 40 
Ind. 462 ; Camden v. McKo^ (1842), 3 Scam. (111.) 437 ; Thacher t. 
Stevens (1879), 46 Conn. 561. 

"Matthews v. Bloxome (1864), 33 L. J. Q. B. 209 ; Cf. Foster v. Mac- 
kinnon (1869), 4 L. R. C. P. at 712, and Art. 23. 

' Coulter V. Bichmond (1875), 59 N. Y. 478 ; Jajfray v. Brown (1878), 
74 N.' T. 393 ; Browning v. Merritt (1878), 61 Ind. 425 ; Cady \. Sfiep- 
ard (1860), 12 Wis. 639 ; Fear v. Dunlap (1848), 1 G. Greene (la.), 831 ; 
Eilbert v. Finkbeiner (1871), 68 Pa. St. 243. 

< Union Bank v. Willis (1844), 8 Met. (Mass.) 504 ; Good v. Martin 
(1877), 95 IT. S. 90 ; Carpenter v. McLaughlin (1879), 12 R. I. 270 ; 
Stein v. Passmore (1878), 25 Minn. 256 ; Herbage v. McEntee (1879); 40 
Mich. 337 ; Chafee v. R. B. (1876), 64 Mo. 193 ; Cf. Sylvester v. Downer 
(18481, 20 Vt. 355, primd facie maker m all cases ; Rivers v. Thomas 
(1878), 1 Lea (Tenn.), 649, indorssr if signed before issue. 

'^Allen\r. Brown (1^78), 124 Mass. 77. 

^ Schneider Y. Schiffman (1855), 20 Me. 571 : Cf. Hoffman v. Moore 
(1880), 82 N. C. 313 ; Houston v. Bruner (1872), 39 Ind. 376. But see 
Good V. Martin (1877), 95 U. S. 90 ; Greenough v. Smead (1854), 3 0. St. 
415. 

''Boynton \. Pierce (1875), 79 111. 145; Stowell v. Raymond [m%), 



AET. 218-19.] LIABILITIES OF PARTIES. 217 

law implies no contract whatever from such an indorsement.' Who liable as 

The liabilities of the indorser of a non-negotiable bill or note 

are not clear. By some authorities he is absolutely liable as 

maker or guarantor, and not entitled to notice of dishonor,^ 

but by others, he is held liable as indorser.' As to indorser 

of over-due bill, see Art. 201, n. 

Art. 218. The indorser of a bill is ia the nature of °™|SVo*er"' 
a new drawer.* Cf. Art_ 215. 

He engages that on due presentment it shall be ae- 
, cepted and paid according to its (then ?) tenor, and 
that if it be not so accepted and, paid he will indem- 
nify the holder, provided due notice of dishonor be 
given.^ 

Note. — Is the indorser a new drawer of the same bill or a 
similar bill? The point has not fairly arisen. Lush, J., re- 
gards him as a new drawer of the same bill ;" but Alderson, B., 
regards the point as doubtful.' See, too, Art. 60. For instance, 
a bill drawn in France is indorsed in England. Are damages 
to be assessed according to English or French Law? Again, 
a bill which has been accepted conditionally is subsequently 
indorsed. Is the indorser liable according to the tenor of the 
bill or of the acceptance? 

Art. 219. The indorser of a bill, by the fact of in- indorsefs es- 

' •' toppels. 

dorsing it, conclusively admits and warrants to abona 

83 111. 120 ; Seymour v. Mickey (1864), 15 0. St. at 519 ; Cf. Hooks v. 
Anderson (1877), 58 Al. 238 ; Jones v. Goodwin (1876), 39 Cal. 493 : 
Gillespie v. Wheeler (1878), 46 Conn. 410. 

1 Chaddock v. Vanness (1871), 88 N. J. L. 617. 

2 Cromwell v. Hewitt (1869), 40 N. T. 491 ; Paine v. Noelke (1877), 53 
How Pr. (N. T.) 278 ; Su-eetser v. French (1848), 2 Cush. (Mass.) 309 • 
Houghton v. Ely (1870), 26 "Wis. 181 ; Billingham v. Bryan (1860), 10 
la. 317 ; Plimleij v. Westley (1835), 2 Bing. N. C. 249 ; Cf. Gwinnett v. 
H'-rbert (1836) 6 N. & M. at 726 ; Jackson v. Slipper (1869), 19 L. T, N. S 
6 

^ Parker v. Riddle (1841), 11 0. 102 ; Cf. Raymond v. Middleton 
(1858), 29 Pa. St. at 532, 583. 

■'Penny v. Innes (1834), 1 C. M. & K. at 441, Paike, B.; Andrews v. 
Simms (i878), 33 Ark. 771 ; Aymar v. Sheldon (1884), 12 Wend, at 448; 
Sinker v. Fletcher (1878), 61 Ind. 276. 

^Suse Y. Pompe (1860), 30 L. J. C. P. at 78, Byles, J.; First Nat. Bank 
V. Marine Bank (1873), 20 Minn. 63 ; German Exchange Law, Art. 14. 

«Cf. Lehel v. Tucker (1867), 8 L. R. Q. B. at 81. But see Andrews v. 
Simms, supra, 

■< Gibhs V. Fremont (1853), 9 Exoh. at 31. 



218 



BILLS OF EXCHANGE. 



[art. 220. 



ludorser's es- 
toppels. 



Damages 
against 
drawer or in- 
dorser. 



fide holder^ the genuineness and regularity in all 
respects of the drawer's signature and all previous 
indorsements,^ that the bill is a valid and subsisting 
bill, and that he has a good title thereto.* 

Note. — In England, under the Stamp Act, the indorser war- 
rants that the bill is a valid and subsisting bill only to his im- 
mediate transferee. If 0., the holder, makes a material alter- 
ation, the bill becomes waste paper. Prior parties cannot hes 
sued thereon because discharged by the alteration, and if C. 
indorse to D., who takes for value without notice, and J), in 
like manner indorse to E., D. cannot sue C. on the bill, be- 
cause the new bill issued by him is void for the want of a stamp; 
his only remedy is a suit to recover the consideration. It fol- 
lows that E. has no remedy whatever against C, with whom he 
is in no privity, but he can look only to D. for the considera- 
tion paid. But in America, both D. and E. could recover 
against 0. as indorser of the bill. C.'s contract of indorsement 
is distinct and independent, and he cannot setup the invalidity 
of the bill at the time of his transfer against any subsequent 
holder.* See Arts. 246 n. and 248. 

Art. 220. The drawer or indorser of a dishonored 
bill is liable for damages at the following rates : — 

(1.) Inland bill. The amount of the bill with in- 
terest" from (probably) the time of dishonor." 

Explanation. — Interest in the nature of damages 
may, if justice require it, be withheld wholly or iu 

' Turner v. Keller (1876), 66 N. T. 66. 

"Ex parte Clarke (1792), 3 Brown C. C. 238 ; TUcknesse v. Bromilow 
(1832), 2 Cr. & J. 425: McGregor y.' Rhodes (1856), 6 B. & B. 266 ; 
State Bank v. Fearing (1835), 16 Pick. (Mass.) 533 ; Condon v. Pearce 
(1875), 43 Md. 83 ; Williams v. Inst. (1880), 57 Miss. 633 ; though in- 
dorsed sans recours, Ditmont v. Williamson (1869), 18 0. St. 515 ; Wat- 
son V. Chesire (1865), 18 la. 202. 

^Burchfield v. Moore (1854), 23 L. J. Q. B. 261 ; Burrill v. Smith 
(1828), 7 Pick. (Mass.) 291 ; Prescott Bank v. Caverly (1856), 7 Gray 
(Mass.), 217 ; Dalrymple v. Hillenbrand (1875), 62 N. 'Y. 5. 

■•Cf. Andrews v. Simms (1878), 33 Ark. 771 and cases cited : Wash- 
ington Bank v. Eckt/ (1873), 51 Mo. 272 ; Morford v. Davis (1864), 28 
E. Y. 481 ; Ballingalls v. Gloster (1803), 3 Bast, at 482, EUenborough, 
0. J. 

5 Windle v. Andrews (1819), 2 B. & Aid. 696. 

^Keene v. Keene (1857), 3 C. B. N. S. 144 ; Cf. Art. 218, and Acker- 
man V. Ehrensperger (1846), 16 M. & W. at 103. 



AET. 231.J LIABILITIES OF PARTIES. 219 

part ;^ and when a bill is expressed to be payable I'^agcs 

r y r y J against drawer 

with interest at a given rate, interest as damages may "^ ""'"'''"^'^■ 
or may not be given at the same rate as interest 
proper.'* 

Note. — In one case it was said that interest as damages 
oould only be recovered from the drawer or indorser from the 
time when he received notice of dishonor.^ But the case must 
be regarded as One where the jury under the circumstances ex- 
ercised their discretion and withheld interest. When a bill is 
dishonored by non-acceptance, it would seem on principle that 
interest should only be allowed from its maturity, but the prac- 
tice appears to be otherwise.* By French Code, Art. 184, in- 
terest accrues from the day of protest for non-payment, and by 
German Exchange Law, Art. 50, from the day of non-pay- 
ment. 

(2.) Foreign bill of exchange. The amount of the 
bill with interest from the time of dishonor, 
and the notarial expenses, or if it be payable 
abroad, the re-excbange, interest and expen- 
ses.^ 

Art. 221. " Ee-excbange " means the loss result- Re-exchange 

1 T 1 p ^ -l^ p 1 • and re-draft. 

ing from tne dishonor of a bill of exchange m a 
country different from that in which it was drawn or 
indorsed.® 

The re-exchange is ascertained by proof of the sum 
for which a sight bill (drawn at the time and place of 

^Laing r. Stone (1828), 2 M. & Ry. 662 and Art. 213. 

^Keenev. Keene (1857), 3 0. B. N. S. 144, and Art. 213, n. 

' Walker v. Barnes (1813), 5 Taunt. 240 : but of. Siggers v. Lewis 
(1834), 1 0. M. & R. 370. 

* Harrison v. Dickson (1811), 2 Camp. 52 n. ; Cf. Suse v. Potnpe (1860), 
8 C. B. N. S. at 566, re -exchange on non-acceptance. But see Crawford 
V. Bank (1844), 6 Ala. at 15. 

^Mellish V. Simeon (1794), 2 H. Bl. 377, cumulative re-exohang-e 
against drawer ; Susev.Pompe (I860), 8 0. B. N. S., 538; see at 566, 567; 
Cf. Adams v. Cordis (1829), 8 Pick. (Mass.) at 265 ; Bank of U. S. v. U. 
S. (1844), 2 How. (U. S.) 711 ; WiUans v. Ayers (1877), 3 L. R. Ap. 
Ca. 13i .at 146 ; Trammell v. Henderson (1876), 56 Ala. 235 ; French 
Code, Arts. 177-186 ; German Exchange Law, Arts. 50-54. 

« Cf. WiUans v. Ayers (1877), 3 L. R. Ap. Ca. at 146, P. C. 



220 BILLS OF EXCHANGE. [aet. 221. 

Ee-exobange dishonor at the then rate of exchange on the place 
where the drawer or indorser sought to be charged 
resides) must be drawn in order to realize at the place 
of dishonor the amount of the dishonored bill and the 
expenses consequent on its dishonor/ 

The holder may recoup himself by drawing a sight 
bill for such sum on either the drawer or one of the 
indorsers. Such bill is called a "Re-draft." The 
indorser who pays a re-draft may in like manner draw 
upon an antecedent party .^ 

Illustkation. 

• 

A., in England, draws a bill for 100?. on B., in Calcutta, pay- 
able there at a rate of exchange indorsed thereon. This en- 
titles the holder to receive (say) Rupees 1000. The bill is dis- 
honored and the expenses of protest, etc., come to Rs. 10. The 
holder is then entitled to Rs. 1010 in Calcutta. At the time 
of dishonor sight bills on England are at 5 p. c. discount. Ac- 
cordingly a sight bill on. England for lOQ?. Is. Qd., would realize 
in Calcutta Rs. 1010. ' The holder may either draw a sight bill 
on A. for 106?. Is. Qd., and thus recoup himself, or he may sue 
A. in England for 105?. and interest, and 1?. Is. 0(7. expenses. 

Explanation. — ^A custom according to which the 
holder may recover either the sum he gave for the 
bill or the re-exchange at his option is invalid,^ but 
a custom according to which a fixed rate of damages 
is substituted for re-exchange is (perhaps) valid.* 

Note. — The term re-exchange is used to signify (1) the 

1 De Tastet v. Baring (1809), 11 East, at 269 ; Suse v. Pompe (1860), 8 
C. B. N. S. at 566-567 ; Cf. Bank of U. S. v. U. S. (1844), 2 How. (U. 
S.), at 737 ; German Exchange Law, Art. 50. 

^Cf.'Mellish T. Simeon (1794), 2 H. Bl. 378 ; Swse v. Pompe, supra, at 
565 ; French Code, Art. 78 ; German Exchange Law, Art. 53. 

'Suse V. Pompe (I860), 8 C. B. N. S. 538. 

^ Waians V. Avers (1877), 3 L. E. Ap. Ca. at 144 P. C; Grimshaw v. 
Bender (1809), 6 Mass. 162 ; Hendricks v. Franklin (1809), 4 Johns, IN. 
y.)119. 



AET. 222-24.J LIABILITIES OF PARTIES. 221 

amount of a re-draft, (3) the loss on a particular transaction Ee-exehange 
occasioned by the exchange being adverse, (3) the course of ex- re-drait. 
change itself, or (4) the right to the sum which would be se- 
cured by a re-draft ; so the context must always be looked to. 
In the American states, the amount of damages recoverable 
against a drawer or indorser is very generally fixed by statute 
at a definite sum in lieu of re-exchange, etc. When English 
law governs the right to re-exohange arises on dishonor by 
non-acceptance, as well as on non-payment.' Under the con- 
tinental codes it only arises on dishonor by non-payment. For 
the reason see Art. 157, n. See the subject of re-exchange 
carefully worked out, German Exchange Law, Arts. 49-54 ; 
French Code, Arts. 177-186; JSTouguier, §§ 1336-1366. 

Art. 222. "When laws conflict, the measure of conflict of laiva 

. .as to damages. 

damages against the drawer is determined by the 
law of the place where the bill was drawn,^ and 
against an indorser (probably) by the law of the place 
where he indorsed the bill.^ 



Transferor by delivery and Transferee. 
Art. 223. The holder of a bill made or become Transferor by 

delivery d&- 

payable to bearer, who negotiates it by delivery '^■i^'^- 
without indorsement, is called a " transferor by de- 
livery." 

NoTB. — Cf. Art. 106, negotiation defined; Art. 107, what bills 
are payable to bearer, and Art. 104, transfer of bill payable to 
order without indorsement. When a bill is transferred by de- 
livery absolutely, the transaction is frequently spoken of as a 
sale of the bill. See the two meanings of the term " sale of a 
bill," pointed out Art. 83, n. 

Art. 224. A transferor by delivery incurs no Transferor not 
liability on the instrument.* strumem. 



'Cf. SKsev. Pompe (1860), 8 C. B. N. S. at 566. 

= Gibhs V. Fremont (1853), 9 Exoh. 25 ; Re State Fire Ins. Co. (1863), 
32 L. J. Ch. 300 ; Freese v. Broumell (1871), 35 N. J. L. 285 ; Crawford 
V. Bank (1844) 6 Ala. 12. 

3 Cf. Allen Y. Kemble (1848), 6 Moore P. 0. at 321 ; Gihhs v. Fremont;, 
supra, at 30, and Art. 60 ; Ayma/r v. Sheldon (1834), 12 Wend, at 443. 

^ Ex parte Roberts (1789), 2 Cox, 171 ; Fenn v. Harrison (1790), 3 T, 



222 BILLS OF EXCHANGE. [aet. 225. 

Liability on ' Art. 225. A transferor by delivery is not liable on 

consideiation. ^ . i i 

the consideration in respect of wbich be has trans- 
ferred the bill, if the bill be dishonored.^ 

Exception 1. — Bill given in respect of an antecedent 
debt.^ 

Exception 2. — A transferor by delivery is liable on 
the consideration to his iminediate transferee when it 
appears that the transfer was not intended to operate 
in full and complete discharge of such liability.^ 

Explanation. — The transferee in order to avail him- 
self of the above exceptions must use reasonable 
diligence in endeavoring to obtain payment, and in 
giving notice of dishonor or repudiating the tran- 
saction.* 

Illustrations. 

1. D., the holder of a bill for $100 which has been indorsed 
in blank, discounts it with a banker for $90, without indorsing 
it. The bill i^ dishonored. D. is not liable to refund the 
$90.= 

2. D. changes a banker's note or cashes a check payable to 
bearer for the convenience of the holder. If the bank has 

R. 757 ; Cf. Ex parte Ishester (1810), 1 Rose, 21 ; Bdberts v. Easkell 
(1858), 20 lU. at 63. 

^Read v. Hutchinson (1813), 3 Camp. 352; Van Wart t. Wolhy 
(1824), 3 B. & C. at 445, Abbott, C. J.; Evans y. WJiyle (1829), 5 Bing. 
485 ; Noel v. Murray (1852), 1 Duer (N. Y.), 385 ; toungs v. Stahelin 
(1866), 34 N. Y. 258. 

2 Ward V. Evans (1703), 2 Ld. Raym. at 930 ; Gibson y. Toby (1869), 53 
Barb. (N. Y.) 191 ; Cf. Camidge v. Allenby (1827), 6 B. & C. at 382 j 
Noel V. Murray, supra, s. o. 3 Kern. (N. Y.), 167 ; Doumey v. Hicks 
(1852), 14 How (U. S.), at 249 ; Devlin v. Chamblin (1861), 6 Minn. 468 ; 
BicknallY. Waterman (1851), 5 R. I. at 48. But qu. if this exception 
now applies to bank notes. Guardians of Lichfield v. Greene (1857), 26 
L. J. Ex. at 142 J Bayard v. Shunk (1841), 1 W. & S. 92. 

3 Van Wart v. Wolley (1824), 3 B. & C. at 446 ; Muru-oe v. Hoff 
(1848), 5 Den. (N. Y.), 360 ; Cf. Breed v. Cook (1818), 15 Johns. (N. 
Y.) 24. 

^Rogers v. Langford (1833), 1 Or. & M. 642 ; Moule v. Brown (1838), 4 
Bing. N. C. 266 ; Robson v. Oliver (1847), 10 Q. B. 704 ; Cf. Gibson v. 
Toby (1869), 53 Barb. (N. Y.), 191 ; Cf. Art. 174. But see Kephart v. 
Butcher (1864), 17 la. 240 (injury to transferor the criterion). 

''Bank of England v. Newman (1700), 1 Ld. Raym. 442. ' 



AET. 226.] LIABILITIES OF PARTIES. 223 

stopped payment, or the check is dishonored, D. can recover Lability on 

'■ -^ ^ •; consideration, 

the money. 

Art. 226. A transferor by delivery, whether liable ^*;^fe"j'y..°^ 
on the consideration or not, warrants to his immediate 
transferee that the bill is what it purports to be,^ and 
that at the time of transfer he is not aware of any 
fact which renders it valueless.^ 

Illusteations. 

1. C. discounts with D. a bill payable to bearer without in- 
dorsing it. It turns out that, unknown to 0., the amount of 
the bill had been fraudulently altered by a previous holder. D. 
can recover from C. the money he paid.* 

2. D., the bond fide holder of a bill purporting to be drawn 
by A., accepted by B., and indorsed in blank by 0., discounts 
it with a banker. It turns out that the signatures of A. and B. 
were forgeries, and that 0., whose indorsement was genuine, is 
insolvent. The banker can recover the money he paid from 
D.= 

3. D., the holder of a note payable to bearer, discounts it 
with E. The maker defeats the suit of E. on the ground that 
the note was usurious and void by statute. E. cannot recover 
the money he paid from D., unless the latter knew of the usury 
when he transferred the note." 

Explanation. — When the transferee discovers the 

' Turner v. Stones (1843), 1 D. & L. 122, note ; Woodland v. Fear 
(1857), 26 L. J. Q. B. 202 ; Cf. Timmins v. Gibhins (1852), 18 Q. B. 722, 
notes paid into a bank and credited to cusix)mer. See note, infra. 

2 Gompertz v. Bartlett (1853), 23 L. J. Ex. 65 ; Challis v. McCrum 
(1879), 22 Kans. 157 ; Ledwich v. McKim (1873), 53 N. T. 307 ; Bell y: 
Dagg (1875), 60 N. T. 528 ; Giffert v. West (1875), 37 Wis. 115 : Bell v. 
Cafferty (1863), 21 Ind. 411. - 

' Cf. Fenn v. Harrison (1790), 3 T. R. at 769 ; Camidge r. Allenh/ 
(1827), 6 B. & C. at 382 ; Lobdell v. Baker (1842), 3 Met. (Mass.) 469 ; 
Delware Bank v. Jervis (1853), 20 N. Y. 228 ; Bridge v. Batchelder 
(1864), 9 Allen (Mass.), 394. 

^ Jones V. Rgde (1814), 5 Taunt. 488. 

^Gurney v. Womersley (1854), 24 L. J. Q. B. 46 ; Merriam v. Wolcott 
(1861), 3 Allen (Mass.), 258. 

= Uttaner v. Goldman (1878), 72 N. T. 506. 



224 



BILLS OF EXCHANGE. 



[aet. 227 



Warranty of 
transferor. 



defect in the bill, he must repudiate the transaction 
with reasonable diligence.^ 

Note.— There is some confusion in the cases owing to the 
distinction between the warranty of genuineness and the lia- 
bility on the consideration having been lost sight of. The war- 
ranty of genuineness is an incident of the contract of sale, and 
it is immaterial whether the thing sold be a bill or any other 
pergonal chattel. The transferor is for this purpose an ordinary 
vendor.^ But it is held in a few States that there is no implied 
warranty of genuineness if the bill is boTid fide sold as a chattel 
and not given in payment of a precedent or present indebted- 
ness.' By the weight of authority in America the transferor 
of a note warrants the solvency of the maker at the time of 
transfer.'' It is probably otherwise in England.' Story on 
Ifotes, § 118, says the transferor also warrants his title to the 
bill. This probably is so ; but the question could hardly arise 
except in the case of an overdue bill, Cf. Arts. 137 and 134. 



Liability of 
acceptor for 
lienor. 



Acceptor supraprotest and Holder, &c. 

Art. 227. The acceptor supra protest engages that 
he will on presentment pay the bill according to the 
tenor of his acceptance if it be not paid by the drawee, 
provided it has been duly presented for payment and 
protested for non-payment, and that he has notice of 
these facts.® 

The acceptor supra protest is liable to the holder 

^PooUy V. Brojtfnp (1862), 31 L. J. Q. B. 184; Magee v. Carmaek 
(1851), 13 lU. 289 ; Frontier Banh v. Morse (1842), 22 Me. 88. 

' Or. Benjamin on Sale, 2nd. ed. pp. 332, 493. 

^Baxter v. Duren (l849), 29 Me. 434 (but Of. Hussey v. Sibley (1877), 
66 Me. at 196); Fisher y. Rieman (1858), 12 Md. 497. 

* Oimrio Banh v. Ughtlody (1834), 13 Wend. (N. Y.) 101 ; Roberts^. 
Fisher (1870), 43 N. T. 159 ; Townsends v. Banh (1858), 7 Wis. 185 ; 
Magee v. Garmach (1851), 13 111. 209 ; Westfall v. Braley (1859), 10 0. 
St. '188. Contra, Bayard v. Shwnh (1841), 1 W. & S. (Pa.) 92 ; Bicknall 
V. Waterman (1857), 5 R. I. 43. 

' But see Timmins v. OilUns (1852), 18 Q. B. 722. 

' Hoare v. Cazenove (1812), 16 East, 391, see at 394 ; Williams r. Ger- 
♦noi»e (1827),. 7 B. &C. at 475-477 (head-note incorrect); Cf. Arts. 179, 
185 ; Cf. German Exchange Law, Arts. 60, 62, 63. 



AET. 228-29.] LIABILITIES OF PARTIES. "225 

and to all parties to the bill subsequent to the party ^^^^IH^^^ 
for whose honor he has accepted.^ , ^°"°'- 

Note. — Under French Code, Art. 137, and German Ex- 
change Law, Art. 58, an accejjtor swprd, protest is bound to 
give notice of his acceptance to the person for whose honor he 
has accepted. The rights of the acbeptor for honor arise on 
payment. Under German Exchange Law, Art. 65, however, 
an acceptor for honor who is not called on to pay the bill is ^ 
nevertheless entitled to a commissioo of one-third per cent. 

Art. 228. The acceptor supra protest is bound by Estoppels wnd- 

, , . , 1 . , 1. % tag acceptor 

the estoppels which bind an ordinary acceptor, and^ori^onor- 
also by the estoppels which would bind the party for 
whose honor he accepted.^ 



Accommodation Pa/rty and Person Accommodated. 

Art. 229. When a person draws, indorses, or ac- Eights of ac- 
cepts a bill for the accommodation of another, the party- 
person accommodated impliedly engages {a) that he 
will provide funds for the payment of the bill at ma- 
turity, {b) that if, owing to his omission so to do, the 
accommodation party is compelled to pay the bill, he 
will indemnify such, party.^ 

Ilxusteations. 

1. B. accepts a bill to accommodate the drawer. The drawer 
sends funds to B. to provide for the bill, but becomes bankrupt 
before the bill matures. B. can retain those funds to pay the 
bill with.* 

' Byles, p. 268 ; Bayley, 6th ed. p. 178, no decision in point ; Cf. Art. 
244. 

2 PhilUps V. Im Thnrn (1866), 1 L. R. C. P. at 471, S. C. on demurrer 
(1865), 18 C. B. N. S. 694 ; see e.g., Art. 139, lUuat. 4 ; Cf. Arts. 212, 
216 219. 

'Reynolds v. Doyle (1840), 1 M. & Gr. 753 ; Sleigh v. Sleigh (1850), 5 
Exch. at 516-517, Parke, B.; Cf. Aspreyv. Levy (1847), 16 M. & W. 851. 

" Yates v. Hoppe (1858), 19 L. J. C. P.- 180. 
15 



226' BILLS OF EXCHANGE. [aet. 229, 

Bights of ao- 3. A. signs a bill as drawer to accommodate the acceptor; 

party. ' It is dishonored. A. receives no notice of dishonor, but never- 
theless pays half the amount of the bill to the holder. A. can- 
riot recover this sum from the acceptor, for he has not paid 
under compulsion.' 

3. B. accepts a bill to accommodate the drawer, but is not 
provided with funds to pay it. There is some primd fade Ab- 
. fense against the holder. B. is sued, defends the action, and 
has to pay the amount of the bill and costs. B. can recover 
from the drawer the amount he paid, including the costs of 
defending the action.'' 

Note. — See accommodation bill and accommodation party; 
defined, Art. 90. An accommodation party who is compelled- 
to pay the bill has all the rights of an ordinary surety in such 
case, e.g., he is entitled to the benefit of all securities held by 
the creditor.' 

1 SUgTi V. Sleigh (1850),' 5 Exch. 514. 

2 Stratton v. Matthews (1848), .3 Exch. 48 ; Baker v. MaHin (1848), 3 
Barb. (N. Y.), 634, accommodation indorser ; -Cf. Bagnall v. Andrews 
(1830), 7 Bing. at 222 ; Garrard v. Cottrell (1847), 10 Q. B. 679 ; aliter, 
if the action be defended -without reasonable cause ; Eoach.-v. Thomp-' 
son (1830), M. & M. 487 ; Beech v. Jones (1848), 6 C. B. 696. 

' Bechervaise v. Lewis (1872), 7 L. R. C. P. at 377 ; Gray v. Seckham 
(1872), 7 L. R. Ch. 680. 



CHAPTEE VII. 

DISCHARGES. 



Discharges in General. 

Art. 230. A bill is discharged when all rights of Discharge de- 
action thereon are extinguished. It then ceases to be 
negotiable, and if it subsequently comes into the 
hands of a bona fide holder for value without notice, 
he acquires no right of actioij on the instrument.^ 
Illustration. 

C. is in possession of a bill which has been discharged, e.g., 
by payment in- due course, or by an alteration. He indorses it 
to D., who indorses it to E. E. cannot sue either G. or D. as 
iiidorsers. He can only recover from D. the amount he paid 
for the bill, and D. in like manner can recover what he paid 
from C.2 

Note. — ^ right of action on a bill must be distinguished 
from a right of action which a party to a bill may have arising 
out of the bill transaction, but wholly independent of the in- \ 

strument. The former can be transferred by negotiating the '• 

instrument, the latter cannot. The former is extinguished by 
the discharge of the instrument, the latter may or may not be 
so. For example, if one of three joint acceptiirs pays a bill, it 
is discharged ; but he personally has a right of contribution 
from his co-acceptors.' If an accommodation acceptor pays a 

^ Harmer v. Steele (1849), 4 Exch. 1 Ex. Ch.; BurchfieU v. Moore 
(1854), 23 L. J. Q. B. 261 ; Frevert v. Henry (1879), 14 ifev. 191. 

'Burchfleld v. Moore, supra; Cf. Burbridge v. Manners (1812), 3 
Camp, at 194, payment ; Cundy v. Marriott (1831), 1 B. & Ad. 696, 
stamp ; Gordon v. Wwnsey (1862), 21 Cal. 77. Rule modified in America; 
Cf. Art. 219, note. 

' Harmer v. Steele, supra, at 14 ; see the converse, Houle v. Baxter 
(1802), 3 East 177 ; Cf. Boardman v. Paige (1840), 11 N. H. 431 : Bohert- 
son V. Smith (1821), 18 Johns. (N. T.), 459. 

(227) 



2as 



BILLS OF EXCHANGE. 



[aet. 231. 



Discharge' 
when laws 
coufiict. 



Discharge de- bill it is discharged, but he has a personal right of action for 
""^ ■ indemnity. If an acceptance be given for a debt, and the ac- 

ceptance is paid, both the debt and the bill are discharged. 
Discharge (^parties. — Again, the discharge of a bill must be 
distinguished from the "discharge of one or more of the parties 
thereto, e.g., the acceptor may be discharged by a discharge in 
bankruptcy while the drawer and indorsers are only liberated 
to the extent of the dividends or composition received by the 
holder', ' or a particular indorser may be discharged by want 
of notice of dishonor, while the drawer and other indorsers re- 
main liable ; or again, an indorser may be discharged as_ re- 
gards a particular party, but not as regards subsequent parties.'' 

Art. 231. When laws conflict the validity and effect 
of a discharge is (in general) determined by tlie lex 
loci contractus of the party soughit to be charged.^ Cf 
Art. 60. 

iLLUSTEATIOIirS. 

1. Bill accepted at Leghorn payable there. By the old law 
of Leghorn an acceptor could procure the cancellation of 
his acceptance if he had not at maturity received' funds from 
the drawer. An acceptor so discharged at Leghorn cannot be 
sued in England.* 

2. Bill drawn in the United States (and issued there) on a 
person in England is dishonored by non-acceptance. The 
drawer cannot be sued in England if he has been dischargedin 
America under the bankruptcy law there in force.' 

3. Bill for $100 drawn and issued in Demerara but accepted 
and payable in England. At the time the bill matures the 
holder owes the acceptor $100. According to Demerara law 
this operates as a discharge of the bill (by compensatio). The 
drawer is discharged.' 

"iJe Joimi Stock Co. (1870), 10 L. R. Eq. 11 ; Re Jacobs (1875), 10 L. 
R. Ch. 211. 

"Cf. O'Keefe v. Dunn (1815), 6 Taunt, at 315 ; see e.g., Art. 191. 

»Cf. Ellis y. MeHenry (1871), 6. L. R. C. P. at 234; Van Eaugh v. 
Van Arsdalh (1805), 3 Cai. (H. Y.) 164, and note (3d ed.). But see 
Baldwin v. Hale (1863), 1 Wall. (U. S.) 223. . 

* Burrows v. Jemino (1726), 2 Stra. 733. 

^Potter V. Broum (1804), 5 East, 124 ; Cf. Symons v. May (1851), 6 
Exoh. 707. But see Braynard v. Marshall (1829), 8 Pick? (Mass.) 194 ; 
Sturges v. Crowninshield (1819), 4 Wheat. (U. S.) 122. 

^ Allen V. Kemble (1848), 6 Moore, 3l5; Cf. Wilkinson v. Simson 



AET. 232.] DISCHARGE. 229 

4. Accotnmotlation bill drawn and Issued in Austria, but ac- Wscharge 
cepted and payable in England is dishonored. The holder re- conflict, 
eeives from the drawer in Austria a smaller sum in satisfaction 

of the bill. This, according to Austrian law, is a valid dis- 
charge. A subsequent indorser cannot sue the acceptor in 
England.' 

5. Bill drawn, accepted, and payable in England. The ac- 
ceptor is made bankrupt and receives his discharge in Aus- 
tralia. He can be sued on the bill in England.^ 



Payment in due course: 

Art. 232. A bill is discharged by payment in due payment in 
course,^ that is to say, by payment in accordance with diaciiaige!' 
Arts. 234 to 236, 

Note. — Satisfaction in general. — No definition of payment 
is attempted, for ."payment" is not a technical term.* ■ The 
holder of a bill is entitled to receive money (Of. Arts. 10,' 36), 
.but when the time of payment comes he may, if he chooses, re- 
ceive satisfaction in any other form. Any satisfaction which 
would operate as a discharge in the case of an ordinary con- 
tract to pay money is equally effectual in the case of a bill." 
Willes, J., seems to think this principle hardly wide enough, 
having regard to the rule (Art, 239) that accord without satis- 
faction in some cases suffices.* Completion qf Payment. — 

(1838), 2 Moore, P. C. 275 ; Powers -a. Lynch (1807), 3 Mass. 77. Com- 
pensatio is recognized as a discharge in all countries where the civil law 
prevails. See further on that subject, Nouguier, §§ 1053-1060 ; French 
Code Civil, Arts. 1289-1299. 

' RalU V. Dennistoun (1851), 6 Exch. 483, 36th plea and judgment at 
493. 

2 BaHley v. Hodges (1861), 30 L. J. Q. B. 352 ; Van Raugh v. Van 
Arsdaln (1805), 8 Cal. (N. Y.) 154. 

^Morley v. Culverwell (1840), 7 M. & W. at 182, Parke, B. 

* See per Maule, J., Maillard v. Argyle (1843), 6 M. & Gr. at 45. 

' See e.g., cases discussed on this basis, Cripps v. Davis (1843), 12 M. 
& W. 159, agreement to set off another debt ; Sibr0 v; Tripp (1846), 15 
M. & W. 23, negotiable bill for less amount ; Ford v. Beech (1848), 11 
Q. B. 852 Ex. Ch., agreement to suspend ; Ansell v. Baker (1850), 15 
Q. B. 20, merger ; Belshaw v. Bush (1851), 11 C. B. 207, and Brooks v. 
WhAte (1841), 2 Met. (Mass.) 283, bill, of third p^rty ; Woodward v. Pell 
(1868), 4 L. R. Q. B. 55, debtor taken in execuHon; Brown v. Smith 
(1877), 122 Mass. 589 ; Cf. Art. 251. 

'Cf.'CookY. Lister (1863), 32 L. J. C. P. at 126; Alrey v. Crux 
(1869), 5 ^. B.C. P. at 44. 



230 BILLS OF EXCHANGE. [aet. 233-34 

.Payment in Payment by a banker is complete, and the property in the 
disohargef '^ money passes to the payee when the money is laid pn the 
counter.' Proceeding for Costs. — Where the holder of a bill 
sues concurrently two or more of the parties thereto, and is 
paid by one of them, he may still piroceed against the others for 
costs incurred.^ 

Part payment. Art. 233. Part payment of a bill in due course 
operates as a discharge pro tanto? 

Note. — As to part payment by the drawer or an indbrser, 
Cf. Art. 234, Expl. %. Under German Exchange Law, Art. 38, 
the holder cannot refuse part payment, but this is clearly not 
English law. Cf. Arts. 39 and 158, and 206. 

Payment, by Art. 234. Payment in order to operate as a dis- 
charge of the bill must be made by or on behalf of, 
the drawee* or acceptor.* 

iLLtrSTRATIOTSrS. 

1. ' A bill is accepted by three joint acceptors (not part- 
ners). One of thetn pays it at maturity. The bill is dis- 
charged and cannot be again negotiated. It is immaterial that 
the lacceptor who paid accepted the bill for the acoOmmoda-;. 
tion of the other two.* 

2. A bill accepted payable at a bank and indorsed in blank 
by C. is sent to D. to collect. D. improperly discounts it. To 

* regain possession, D. goes to the acceptor's bankers, pays in 
the amount of the bill, arid asks to have the bill given up to 

» Chambers v. Miller (1862), 32 L. J. C. P. 30. 

^Randall v. Moen (1852), 21 L. J. C. P. 226, as explatned by Cooh v. 
Lister (1863), 32 L. J. C. P. at 127 ; LondonBanky. Walkinskaw (1812), 
25 L. T. N. S. 704. 

3 Graves v. Key (1832), 3 B. & Ad. 313 ; Cf. Cook v. Uster (1863), 82 
L. J. G. P. at 125, Willes, J. ; Commeccial Bank v. Cunningham (1837), 
20 Pick. (Mass.) at 275. French Code, Art. 156 ; German Exchange 
Law, Arts. 38, 39. 

* Wilkinson v. Simsoii (1838), 2 Moore P. C. at 287, Parke, B. 

' Callow V. LawrenSt (1814), 3 M. & S. at 97, Ld. EUenboroug'h ; Jones 
V. Broadhurst (1850), 9 C. B. at 181, Cresswell', J.; Dodge v. Freedman's 
Trust Co. (1876), 93' U. S. 379 ; Farmers' Bank v. Rathbone (1853), 26, 
yt. 19 ; Dougherty y. Deeny (1877), 45 la. 443. But see Burr v. Smith 
(1855), 21 Barb„(N. T.),-262. 

offarmer Y.Steele (1849), 4 Ex. at 13-14, Ex. Ch.; d.'Bartrum v. 
Caddy (1838), 9 A. & E. 275, note on demand paid by accommgdation 
inaker ; Pray v. Maim (1851), 7 Cush. (Mass.) 253 : Hopkim v. Seott 
(1855), 32 N. H. 425 ; Frevert v. Henry (1879), 14 Nev. 191. » . 



AKT. 234.] DISCHARGE. 231 

him, when the holder has been paid. This is done. The bill Payment, by 

. ^ "Whom, 

is not discharged. C. can sue the acceptor.' 

3. C. is the Lolder of a dishonored bill indorsed in blank. 
D. pays the amount and costs to C. in order to get the' bill and 
sue on it. C. parts with the bill under the impression that D, 
has paid it on behalf of the acceptor. The bill is not discharged. 
D. can sue the drawer.^ 

4. A joint and several note is paid at maturity by one of 
the makers. The note is discharged.' 

Explanation!.— P&yment of an accommodation bill 
by the person accommodated is deemed to be a pay- 
ment made on behalf of the acceptor, and operates as 
a discharge,* 

Illustbatiost. 

A bill is accepted for the accommodation of the drawer. The 
dawer negotiates the bill, and then takes it up at maturity. 
Subsequently he re-issues it. The holder cannot sue the ac- 
ceptor, for the bill is discharged.^ 

Note. — See Art. 90, defining '^accommodation bill." The 
discharge may be supported on the ground adopted by Wiiles, 
J.', that the person accommodated pays as the acceptor's agent, 
or on the ground that the bill has been paid by the principal 
debtor. Of. Art. 245, as to principal and surety, and Art. 134, 
n., equities attaching to overdue bill. 

Explanation 2. — Subject to Expl. 1, payment by 

^Deacon v. Stodhart (1841), 2 M. & Gr. 317; Thomas v. Fenton 
(1847), 5 D. & L. 28, see at 38 ; Of. Walter v. James (1871), 6 L. E. Ex. 
124 ; Dodge v. Freedman's Trust Co. (1876), 93 U. S. at 386. 

^Lyon V. Maxwell (1868), 18 L. T. N. S. 23. But see Lancey v. Clarh 
(1876), 64 N. Y. 209. 

» Beaumont v. Greathead (1846), 2 C. B. 494 ; Davis v. Stevens (1839), 
10 N. H. 186 ; Eastman V. Plummer (1855), 32 N. H. 238. 

"•Cook V. i/isier (1863), 32 L. J. C. P. at 127, Wiiles, J.; see also 
Lazarus v. Cowie (1842), 3 Q. B. 459, crilicised but followed in Jewell v. 
Parr (1853), 13 0. B. 909, apparently approved, Parr v. Jewell (1855), 
16 C. B. 684 at 709, Pai-ke, B., Ex. Ch.; Jones v. Broadhurst (1850), 9 
C. B. at 181 and 1-89 ; Salli v. Dennistoun (1851), 6 Exch. 483, 36th pJea 
and judgment at 493 ; Strong v. Foster (1855), 17 C. B. at 222 ; Re 
Oriental Bank (1871), 7 L. R. Ch. at 102 ; Woods v. Woods (1879), 127 
Mass. 141. 

^Lazarus v. Cowie, supra ; Cf. Blenn v. Jjiiford (1879), 70 Me. 149, 
note paid by accommodated payee ; Cf. Art. 230, discharge defined. 



232 BILLS OF EXCHANGE. [aet. 23i. 

Payment, by the diEwer or indorser of a bill, as such, is not a dis- 
charge of it/ but is merely a purchase thereof ' 

Illustrations. 

1. The acceptor of a bill, originally payable to drawer's 

order, dishonors it. The drawer pays the holder and gets the 

bill. He may either sue the acceptor himself, or he may strike 

out his own and the subsequent indorsements and again nego- 

r tiate the bill away.^ 

3. A bill drawn by A., payable to C. or order, and by C. 

indorsed to D., is dishonored by the acceptor at maturity. The 

drawer pays D. and gets the bill. He may sue the acceptor, 

but he cannot re-issue the bill.' Aliter, it seems, if C or D. 

. had indorsed in blank.* 

3. The C. bank discount a bill, which is accepted payable at 
their house, and then indorse it away. At maturity it is pre- 
sented to the C. bank and paid. It is a question of fact whether 
they paid as the agents and bankers of the acceptor, or whether 
they took up the bill as iiidorsers. In the latter case it is not 
discharged, and they can sue the drawer, or if he be a cus- 
tomer, debit him with the amount of the bill.' 

4. The indorser of a bill writes to the drawer promising to 
" retire " it, and accordingly takes it up before maturity. The 
bill is not discharged." 

Explanation 3.— -Subject to Expl, 1, when a bill is 
paid wholly or in part by the drawer or by an in- 
dorser, and the holder retains possession of the bill, he 

^ Jones V. Broadhurst (1850), 9 C. B. 173 ; Kemp y. Balls (1854), 10 
Exoh. 607 ; Wnodivard v. Pell (1868), 4 L. R. Q. B. 55 ; French v. Jav- 
vis (1860), 29 Conn. 347 ; Banh v. Senior (1876), 11 B.. I. 376 ; Wood- 
man V. BootKbij (1876), 66 Me. 389. 

^ Callow V. Lawrence (1814), 3 M. & S. 95 ; Hubbard v. Jackson 
(1827), 4 Bing. 390 ; Cf. Art. 119, n.; Bank v. Senior, supra ; Ellsworth 
v. Brewer (1&31), 11 Pick. (Mass.) 315. 

'Of. Williams v. James (1850), 15 Q, B. at 505, Patteson, J.; Gardner 
y. Maynard (1868), 7 Allen (Mass.), 456. 

* See Art. 130 ; sed contra, Daniel, § 1240. 

'■Pollard V. Odgen (1853), 2 E. & B. 459 ; Cf. Pacific Bank v. Mitchell 
(1845), 9 Met. (Masa.l 297 ; Dougherty v. Deeny (1877), 45, la. 443. 

" Elsam V. i)c»».!/_(1854), 15 C. B. 87 ; see at 94 as to the meaning of 
"retire," but see a different cpnstructiou put on the tenn Ex parte Meed 
(1872), 14 L. R. Eq. at 593. 



. AET. 235.] DISCHARGE. 233 

holds it as trustee for such drawer or indorser as re- ^^y™"!*' i"? 
gards the amount received.-^ 

Note. — In America this rule applies in case of the bank- 
ruptcy of the acceptor, and the holder is entitled to prove for 
the face of the bill, notwithstanding he may have received a 
sum ol money from an indorser in discharge of his liability.'* ' 

But in England, the sum so received must be deducted from 
the amount for which the holder is entitled to prove against 
the acceptor's estate.^ The right of the holder to retain the bill 
when he has been paid by the drawer or an indorser depends 
on the arrangement between them.* In France and other- 
countries where the civil law is followed, payment by the 
drawer or an indorser discharges the bill, the rule being 
debitorem ignarum seu etiam invitum solvendo liberare 
possumus. 

Art. 235. Payment in order to operate as a dis- payment, at 

•*• what time. 

charge of the bill must be made at or after the matur- 
ity thereof.® 

Explanation.— V&j^^^^ ^J *he drawee or acceptor 

previous to maturity operates as a mere purchase of 

the bill, and subject to Art. 238 he may, if the form 

of the bill permit, re-issue and further negotiate it.* 

Illustrations. 

1. Accepted bill payable three months after date. A 
month before it matures the holder indorses it for ,yalue to the 
acceptor. The next day the acceptor indorses it to D. D. 
can sue all parties to the bill.'' 

^ Jones V. Broadhurst (1850), 9 C. B. at 183 ; Cooh v. Lister (1863), 3 
L. J. C. P. at 127, Wmes, J.; Thornton v. Maynard (1875), 10 L. B. C. 
P. 695 ; Cf. Art. 141, as to efPect of this, if holder sues. 

2 Ex parte Talcott (1878), 9 Baaik. Reg. 502 ; Downiny v. Traders' 
Bank (1873), 2 Dill. (C. Ct.) 136. 

' Ex parte Taylor (1857), 26 L. J. Bankr. 58 ; Ex parte Maxondoff 
(1868), 6 L. E. Eq. 582. 

* Jones v. Broadhurst, supra ; Cf. Woodward v. Pell (1868), 4 L. R. 
Q. B. 55, as to a lien for costs, and Art. 206. 

^.Burhridge v. Manners (1812), 3 Camp, at 194 ; Beaumont v. Great- 
head (1846), 2 C. B. 494 (after maturityjV French Code, Arts. 144-146. 

^Morley v. Culverwell \18i0), 7 M. & W. 174 ; see at 182, Parte, B.; 
Attenborough v. Mackenzie (1856), 25 L. J. Ex. 244 ; Cf. Art. 130. 

'Id. ; Cf. Sogers v. Gallagher (1868),49 111. 182; Cf. Swope v. Eoss (1861), 
40 Pa. St. 186 ; Art. ISO. 



234 



BILLS OF EXCHANGE. 



[ART. 236. 



Payment, at 
what time. 



Payment, to 
whom. 



3, An accepted bill payable three months after date is held 
by C. A month before it matures the acceptor pays C, but C, 
retains the bill. The next day C indorses it to D., who takes 
it for value and without notice of the payment. D. can sue 
the acceptor.' 

NoTB. — Premature payment or any other premature dis. ' 
charge is of course valid iriter partes. 

Art. 536. Payment in order to operate as a dis- 
Gharge of the bill must be made to the holder or to 
some person authorized to receive payment on his 
behalf.^ 

Exeeptian 1. — Payment to the de facto holder who 
holds a bill wrongfully operates as a discharge if it be 
made in good faith and without notice* 

iLLtrSTEATIOlfS. 

1. A bill is payable to " John Smith or order." Another 
person of the same name gets the bill and presents it. The ac- 
ceptor pays him. The bill is not discharged. The acceptor is 
still liable to the real John Smith. Art. 81. 

3. A bill indorsed in blank is stolen. The thief presents it 
to the acceptor at maturity and obtains payment. If the ac- 
ceptor bays bond fide he is discharged.* 

Note. — Another exception exists in England by virtue of a 
statute which enables a banker who, as drawee, pays in good faith 
a genuine chedk held under a forged or unauthorized indorse- 

1 Cf. Dod V. Edwards (1827), 2 G. & P. 602, premature release ; Cripm 
v. Davis (1843), 12 M. & W. 159 ; Ingham v. Primrose (1859), 7 C. B. 
N. S. 82 ; Wheeler v. Guild (1838), 20 Pick. (Mass.) 545 ; Grants. Kid- 
well (1860), 30 Mo. 455. 

'' Of. Lehley v. Mills (1791), 4 T. R. at 175 ; Walker v. Macdonald 
(1848). 2 Exch. at 532 ; Maifo v. Moore (1862), 28 lU. 428 ; Pier v. BulUs 
(1879), 48 Wis. 429 ; Dodge v. Bank (1877), 30 0. St. 1 Nouguier, § 889 ; 
PotMer, Nos. 164^167. . 

sCf. Polaris v: Tucker (1851), 16 Q. B. at 579, Ex. Oh.; and see Jones 
V. Fort (1829), 9 B. & C. at 768 ; fiVay v. Johnston (1868), 8 L. E. H. L. 
at 14 ; Wheeler v. Guild, supra ; Lamb v. Matthews (1868), 41 Vt. 42 ; 
Tarpley v. McWhorter (1876), 56 Ga. 410 ; Pothier, Nos. 168-169. 

'^SmUh V. Sheppard (1776), cited Chitty, 10th ed. p. 180, n.; Cf. Rob- 
arts V. Tucker (1851), 16 Q. B. at 576, Paxke, B. 



AET. 237.] DISCHARGE. 22,0 

ment to charge the drawer with the payment.' German Ex- Payment, to 
change Law, Art. 36, extends this protection to all payors, and ^ °'^' 
Indian Draft Code, Arts. 86-88, proposes to do the same. 
French Code, Art. 145, provides that payment at maturity 
made " without opposition " discharges the payor. In America, 
the bank paying the holder under a forged indorsement cannot 
charge the drawer with the payment.^ See Arts. 125-128, de- 
termining who is the de facto holder, Art. 144, as to lost bills, 
and Art. 29 as to bills drawn in a set. Arts. 141-143 show 
that the acceptor must pay unless the holder is shown to hold 
•the bill wrongfully. Art. 94 shows that the' payor may set up 
the/ws tertii and decline to pay a wrongful holder. But there 
is no decision to show when he must set up the jus tertii. It 
is conceived that the same test of bond fides would be applied 
to the payor that is applied to an indorsee. See Art. 86, n. 
Payor and indorsee alike part with value and get the bill. 
Holder's Identity. — Under some continental" codes, when a bill 
is payable specially, and the holder is a stranger, he is bound 
to give some proof of identity.' In England it is conceived 
that possession \& primdfacie evidence of identity,* and that if 
the payor doubts the identity of the person presenting or the 
genuineness of the instrument, he must pay or refuse to pay, at 
his own risk. There is a dictum by Maule, J.,' that in such case 
the payor would be allowed a reasonable time to make inquiry,' 
but having regard to the duties of the holder this seems very 
questionable. 

Art. 237. Whea payment of a bill is made by mis- EeeoTeryty 

, . .11 . payor of money 

take to a person who is not entitled to. receive payment, \i^ ^y mis- 

and who cannot give a discharge,® the money so paid 

may be recovered back by the payor as follows: — 

(1.) The payor of a forged, altered, or canceled bill, 

who has been led to pay it by the negligence 

of his correspondent or customer, and has not 

himself been guilty of negligence, can recover 

116 & 17 Vict. c. 59, § 19 ; Charles v. Bladkwell (1877), 2 L. R. C. P. 
D. at 156 ; Ogden v. Benas (1874), 9 L. E. C. P. 513. 

^Morgan v. Bank (1854), 11 N. Y. 404 ; Belknap v. Nat. Bank (1868), 
100 Mass. 376. 

■^Nouguier, § 897. 

>Ci. BulkeUy v. Butler (1824), 2 B. & C. at 441, Bayley, J. 

= Roharts v. Tucker (1851), 16 Q. B. at 578. 

'Art. 236, as to who can give discharge. 



236 BILLS OF EXCHANGE. [aet. 237. 

pa'oro7^^ the money so paid from such correspondent or 

sHfr** ^^ customer. 

Illustrations. 

1. A. draws a check on his bankers for $50, carelessly leaving 
a bJank space before the words and figures "fifty." The holder 
fills it up as a check for $150, and obtains payment. The 
banker can charge A. with the amount so paid.' 

2. A. draws in the ordinary way a check for $50. It is al- 
tered to $150, The alteration is not apparent. A.'s banker 
pays it. He can only charge A. with $50.^ 

3. A. draws a bill on B., and indorses it in blank. Subse- 
quently, intending to cancel it, he tears it into four pieces, and 
throws the pieces away. 0. picks up the pieces, pastes them 
together, and presents the bill to B. and obtains payment. If 
the marks of cancellation are apparent, B. cannot recover the 
money so paid from A.' Aliter, if the marks be not apparent.* 

4. A bill held under a forged indorsement is presented to B. 
for acceptance. B . accepts it payable at his bankers. The 
bankers pay it. They cannot charge B. with the- amount." 

(2.) The palyor can recover the money paid from the 
person who received it when such person did 
not act bona fide in demanding payment of tlie 
bill.« 

(3.) The payor can recover the money paid from 
the person who received it when such person 
acted bona fide in demanding payment of the 
bill, provided (a) that the payor was not guilty 

' Young Y. Grote (1827), 4 Bing. 253, as explained hj Arnold v. Check 
Ba»&(1876), 1 L. R. C. P. D. at 586 ; Halifax Union v. Wheelwright 
(1875), 10 L. R. Ex. 183 ; Cf. Arts. 23, 52. 

^Hall T. Fuller (1826), 5 B. & C. 750 ; Cf. Trigg v. Taylor (18—). 27- 
Mo. 245. 

'Scholey v. RamshoUom (1810), 2 Camp. 485 ; Cf. Art. 138. 

*Cf. Ingham v. Primrose (1859), 7 C. B. N. S. 82. 

^Robarts v. Tucker (,1851), 16 Q. B. 560, Ex. Ch.; First Nat. Banky. 
TappaniWO), 6 Kans. 465. 

^Martini. Morgan (1819), 3 Moore, 635 ; Cf. Arta. 81 and 94 ; Kendal 
V. Wood (1871), 6 L. R. Ex. 243 ; First Nat. Bank \. Bicker (1874), 71 lU. 
439 ; Nat. Bank v. Bangs (1871), 106 Mass. 441 at 444. 



AET. 237.] BISCHARGE. 237 

of negligence in making tlie payment/ and^|^overybr 
(probably) {b) that, tbe position. of the patty Sffie!""* "'' 
receiving payment has not altered before the 
discovery of the mistake and notification 
thereof.^ 

Illustrations. 

1. A check is presented and paid. Directly after the pay- 
ment th^ bankers discover that the drawer's account was over- 
drawn. They cannot recover the money so paid from the 
holder of the check.' 

2. A bill purporting to be drawn by A. on B., is paid by B. 
Subsequently B. discovers that A.'s signature was a forgery. 
B. cannot recover the money from the holder to whom he 
paid it.* 

3. C, the holder of a bill purporting to be accepted payable 
at a bank, indorses it to D. for collection. D. obtains payment, 
and hands the money over to C. A week after the payment 
the bank discovers that the acceptance was a forgery. They 
cannot recover the money from C 

4. A bill, purporting to bear the indorsement of C, is held 
by F. It is dishonored. X. pays it suprcl protest for C.'s 
honor. The same day he discovers that C.'s indorsement was 
a forgery, and gives notice to F. X. can (perhaps) recover the 
money from F.^ 

.5. C, the indorser of a bill, pays D., the holder, in igno- 
rance that he has been discharged by D.'s omission to present 

' Sed qu. See Lawrence v. American Bank C1873), 54 N. T. 432 ; Cf. 
Nat. Bank v. N. B. Assn. (1873), 55 N. T. at 215. 

2 Welch V. Goodwin (1877), 123 Mass. 71 ; Cf. Merchants Bank v. 
Eagle Bank (1869), 101 Mass. at 285 ; Nat. Bank v. N. B. Assn. supra. 

' Cf. Chambers v. Miller (1862), 32 L. .1. C. P. 30 ;" Boylston Bank v. 
Richardson '1869), 101 Mass. 287 ; Oddie v. Bank (1871), 45 N. Y. 735. 

* Price V. Neal (1762), 3 Burr. 1355 ; Nat. Park Bank v. Bank (1871), 
46 N. Y. 77 ; Bank v. F. & M. Bank{m&\ 10 Vt. 141 ; Cf. Ellis v. Ohio 
Trust Co. (1855), 4 0. St. at 6-52. But see Goddard v. Banle (1850), 4 
N. Y. 147 ; Allen v. Bank (1874), 59 N. Y. 12, holding aliter if paid be- 
fore any opportunity to inspect the bill. Cf. Art. 212. 

5 Smith V. Mercer (1815), 6 Taunt. 76. 

« Wilkinson v. Johnston (1824), 3 B. & C. 428 ; Cf. GoddardY. Bank, 
simra; Carpenter v. NoHh Bank (1877), 123 Mass. 66 ; but Cf. Phillips 
v.Im Thurn (1866), 1 L. R. C. P. 463. 



238 BILLS OF EXCMANGE. [aet. 237. 

Recovery by it for payment. A week after he discovers this fact. C. can 

payor of ^, , . ■, j y-. , 

money paid by recover the money he paid irora U.' 

™'^'' ®' 6. C. is the holder of a bill ' purporting to be accepted by 

B., payable at his bankers. The bank pay the bill. Next day 
they discover that the acceptance was a forgery, and give notice 
to 0. They cannot recover the money from 0.^ 

7. A bill held by C, and purporting to be accepted by B., 
is presented to B. for payment. B. inspects and 'pays it. Sub- 
sequently he discovers that his signature was forged. JHe can- 
not recover the money from 0.' 

8. A genuine bill fraudulently altered in amount from $10 
to 1100 is subsequently accepted and paid. Four months af- 
terwards the acceptor discovers the fraud and gives immediate 
notice to the holder he paid. He can (probably) recover the 
money.* 

Note. — The reasons given for the decisions are very con- 
flicting. Illustrations 3, 3, and 6, might well be supported on 
the ground that the payor is bound to recognize the signature 
of his own correspondent or customer {Gf. Art. 313), this being 
matter peculiarly within his own knowledge ; but apart from 
this, it seems on principle that a person presenting a bill for 
payment ought to warrant its .genuineness and his right to re- 
ceive payment, just as a transferor by delivery warrants genu- 
ineness and his right to transfer (Art. 336). There are dicta 
to this effect,^ but the point must be regarded as very question- 
able ; Of. Art. 336, n. It seems to be the tendency of Ameri- 
can authorities to limit the doctrine of Price v. Neal to cases 
strictly analogous, and to permit recovery although payor may 
have been negligent in paying, provided the situation of the 
party receiving payment has not altered before the discovery 
of the mistake and notification thereof. 

T-Milnes v. Duncan (1827), 6 B. & C. 671 ; Cf. Farmers Banh v. Small 
(1825), 2 Mon. (Ky.) 88 ;' Kelly v. Solari (1841), 9 M. & W. at 59. 

^ Cocks V. Masterman (1829), 9 B. & C. 902 ; Cf. Commercial Bank v. 
First Nat. Bank (lS68), 30 Md. 11 (check). 

^Mather v. Maidstone (1856), 18 C. B. 273 at 295 ; Gloucester BankY. 
Salem Bank (1820), 17 Mass. 33, see at 44 ; U. S. Bank v. Georgia Bank 
(1825), 10 Wheat. (U. S.) 333. But se« Welch v. Goodwin (1876), 123 
Mass. 71 

" White V. Cont. Nat. Bank (1876), 64 N. T. 316 ; Cf. Nat. Bank v. N. 
B. Assn. (1873), 55 N. Y. 211 ; Burchfield v. Moore (1854), 23 L. J. Q. 
B. 261 ; Sheridan v. Carpenter (1872), 61 Me. 83 ; City Bank v. First 
Nat. Bank (1876), 45 Tex. 203. ' t 

'Cf. Wilkinson \. Johnston {Ti82i), 3 B. & C. at 437;. Woods i.. 



ini. 238.] DISCHARGE. 239 



Coincidence of Bight and Liability. 

Art. 238. A bill which has been negotiated is dis- ^S'aVmL 
charged, when the acceptor either is or becomes the"""^- 
holder thereof at or after maturity. Cf. Art. 235; 

Exception. — Acceptor holding a bill as adminis- 
trator of the late holder.^ 

Illustrations. 

, 1. A bill payable after date and accepted by three joint ac- 
ceptors is held by C. C, before the bill matures, indorses it to 
B., one of the acceptors. If B. retains the bill till its maturity, it 
is discharged." 

2. B. is the maker of a note payable on demand. The 
holder dies, having appointed B. his executor. The note is 
discharged.' 

3. B. is the maker of a note payable on demand. B. dies 
having appointed C, the holder, his' executor. The note is 
not discharged unless C. have assets available for the payment 
of it, and he can validly indorse it away at any time before he 
has such assets.* 

4. B., X. and Y. make a joint and several note payable on 
demand to B.'s wife, in consideration of money lent by her as 
administratrix to B. X. and Y. sign as sureties for B. On 
B.'s death, his widow can sue X. and Y.^ 

Thiedeman (1862), 1 H. & C. at 495, Bramwell, B.; sed contra, East 
India Co. v. Tritton (1824), 3 B. & C. at 291. 

' Williams on Executors, 7tli ed. p. 1313. 

'Harmerv. Steele{l849)i4: Exch. 1, Ex. Ch.; Cf. Mainwaring v. New- 
man (1800), 2B. & P. 120 (two firms with common partner) ; Nealev. Tiw- 
ton (1827), 4 Bing. 149 ; Hall v. Kimball (1875), 77 111. 161 ; M'Gee v. 
Prouty (1845), 9 Met. (Mass.) 547 ; WiMe v. Williams (1876), 8 S. C. 
290 ; Stewarts. Hidden (1868), 13 Minn. 481. 

^Freakley v. Fox (1829), 9 B. & C. 130, but the executors must ac-. 
count for the amount of the note as assets ; Williams on Executors, 7th 
ed. pp. 1310-1315 ; Cf. Mitchell v. Rice (1831), 6 J. J. Marsh. (Ky.) at 
'625. 

^Lowe V. Peshett (1855), 16 C. B. 500 ; Cf. Mitchell v. Rice, supra. 

' Richards v. Richards (1831), 2 B. & Ad. 447 ; Cf. Beecham v. Smith 
(1858), E. B. & E. 442. 



< 



240 BILLS OF EXCHANGE. [aet. 239. 

Acceptor the NoTB.' — Statutes in America have changed the common law 
■turity!*'""^ effect of the creditor's appointment of the debtor as his execu- 
tors. As to " discharge," see Art. 230. The general rule is 
that a present right and liability united in the same person, 
cancel each other. This mode of discharge is called in the 
civil law confusio; and is recognized in all countries whose law 
is founded on civil law.' 



Waiver or Cancellation. 
Waiver or can- ^ft 239. A Mil IS discharsfed wlien the holder of 

ctiiaiiuii uy o 

holder. |j. ^^ qj, ^fter maturity absolutely and unconditionally 

renounces his rights against the acceptor. 

The liabilities of any party to a bill may in like 
manner be released by the holder verbally and 
without consideration either before or after its 
maturity ; ^ but such release if given before maturity 
is inoperative against a subsequent holder for value 
who takes the bill before maturity and without 



notice.* 



Illusteations. 



1. The holder of a bill at maturity tellsthe acceptor that he 
renounces all claims against him. The bill is discharged.* 

2. The holder of a bill before it matures tells the first in- 
dorser that he renounces all claim against him. The first and 
subsequent indorsers are (probably) discharged as regards such 
holder. The drawer and acceptor are not.' 

■ As to France, see Nouguier, §§ 1061-1065.\ Qu. if Grerman Exchange 
Law, Art. 10, is a departure from the rule. 

^Foster v. Dawher (1851), 6 Bxch. 839 at 851, 852, Parke, B.: Cf. Cooh 
V. ii'sier (1863), 32 L. J. C. P. at 126 ; Abrey v. Crux (1869), 5 L. R. C. 
P. at 44, Willes, J.; PotMer, Nos. 175-183. -But s&e Crawford v. Mills- 
paugh (1816), 13 Johns. (N. Y.), 87 ; Harrison v. Close (1807), 2 .Johns. 
■(N. Y.), 448; Kidder v. Kidder (1859), 33 Pa. St. 768; Smith v. 
Bartholomew (1840), 1 Met. (Mass.) 276 ; Byles, 6th Am. Ed. p. *232, 
Sharswood's note. 

»Cf. Ingham v. Primrose (1859), 7 C. B. N. S. 82, and Art. 235. 

* Whatley v. Tricher (1807), 1 Camp. 35, and Foster v. Dawher, 
supra. 

^ Pothier, ms. 182,183; Nouguier, §§ 1048-1049: Cf. Delatorre v. 
Barclay (1814), 1 Stark. 7. 



ART. 240.] DISCHARGE. 241 

3. The holder of a bill verbally agrees with the drawer that ^awer or^ean- 
he will not exercise his right of recourse against him if a cer- holder. 

tain event takes place. The event happens. The drawer is not 
discharged, for this is merely an oral agreement to vary the 
effect of a bill, and not an absolute waiver of the drawer's 
liability.' 

4. The holder of a bill strikes out the acceptor's signature, 
intending to cancel it. This is a waiver of the acceptance, and 
discharges the bill.^ Aliter., if the cancellation be not apparent, 
and the bill be negotiated to a holder for value before 
maturity.' 

5. B. accepts the first part of a foreign bill drawn in a set 
of two, and sends it, -as directed, to a bank to be held at the 
disposition of the holder of the second. The drawer, who is 
the holder of the second part, failing to discount it, cancels it, 
and directs the bank' to deliver up the first to B. B. gets the 
first part and cancels his acceptance. B. is discharged, and if 
the drawer subsequently issue a fresh second part, the holder 
cannot sue B.* 

Note. — This mode of discharge, called in France " Remise 
volontaire," is recognized in all countries where the civil law 
is followed. Compare Art. 168, clause 6, and Art. 200, clause 
7, as to waiver of the holder's duties, and Art. 119, n., as to 
striking out indorsements. 

Art. 240. The cancellation of a signature is prima cancellation 

Idv rn istnTf ft 

facie evidence that the liabilities of the party whose 
signature is cancelled have been discharged, but the 
cancellation may be shown to have been made by 
mistake, and is then inoperative.® 

^Abrey v. CriM (1869), 5 L. R. C. P. 37. 

2Cf. Sweeting v. Halse (1829), 9 B. & C. at 369; Tglesias v. Banlc 
(1877), 3 L. R. C. P. D. 60. 

s Ingham v. Primrose, (1859), 7 C. B. N. S. 82, and Art. 138. 

^Ralli V. Denmstoun (1851), 6 Kxch. 483.* 

^ Brett V. Marston (1858), 45 Me. 401 y Baper v. Birhleck (1812), 15 
East, 17, acceptance cancelled by referee in case of need. Wilkinson v. 
Johnston (1824), 3 B. & C. 428, indorsements cancelled by payorfor honor. 
Novelli V. Rossi (1831), 2 B. & Ad. 757 ; Warwick v. Rogers (1842), 5 
M. & Gr. 340 at 373, acceptance cancelled by bank where payable ; 
Prince \. Oriental Bank (1878), 3 L. R. Ap. Ca. 325, P. C, note cancelled 
by maker's banker. 
16 



242 BILLS OF EXCHANGE. [akt. 241-43. 

Payment for Honor Supra Protest. 

Payment swpm Art. 241. A bill whicli has been protested or noted 
for non-payment, may be paid supra protest for the 
honor of any party liable thereon.^ It then ceases to 
be negotiable.^ 

Payment supraprotest must be duly attested by a 
notarial act of honor.^ 

Note. — Promissory notes are sometimes, though not often, 
paid suprd, protest. The "act of honor," is founded on a de- 
claration by the payor or his agent statfng for whose honor he 
desires to pay. Payment SMjor^/jro^esi is known in France as 
payment " par intervention," which expresses its nature. 

^o^™ay pay Art. 242. A bill may be paid supra protest by 
the acceptor supra protest, or referee in case of need,* 
or (perhaps) by any other person, whether a party 
liable on the bill or not.^ 

Note — By French Code, Art. 159, payment suprd, protest 
may be made by " tout intervenant," but this is interpreted to 
mean any person other than a party already liable on the bill.' 
The limitation seems reasonable, having regard to the rights 
acquired by the payor. It is clear the acceptor suprd, protest 
can only pay for the honor of the party for whose honor he ac- 
cepted. French Code, Art. 159, and German Exchange Law, 
Art. 64, provide that if two or more persons oifer to pay suprh 
protest, he whose payment will liberate most parties must be 
preferred. 

Holder's oMi- Art. 243. A holdor who refuses to receive pay- 

gation to re- -t •' 

ceive payment 

for honor. , Qgralopulo v. WieUr (1851), 20 L. J. C. P. 105 ; Cf. Ex parte WyU 

(1860), 2 Dea. F. & J. 642 ; Brook's Notary, 4th ed. 108-110. 

^ Ex parte Swan (1868), 6 L. R. Bq. 344 ; JVo«j!M»er, § 1026; Cf. Dea- 
con v. Stodhart (1.841), 2 M. & Gr. at 320. 

^Ct. Ex parte Wyld, supra; Brook's Notary, 4th ed; 108-110; fot 
forms, see pp. 226-228. 
" Cf. 6 & 7 Will. 4, c. 58 ; German Exchange Law, Art: 62. 
' Byles, p. 270. No decision in England. Sed contra. Smith v. Saw- 
yer (1867), 55 Me 139. 
'Nougmer, §§ 1004^1008. 



AET. 244.] DISCHARGES. 243 

ment supra protest (perhaps) loses his right of re- same, 
course against the parties who would have been dis- 
charged thereby.'^ 

Note. — An object for refusing might be the prospect of gain 
on the re-exchange. 

Art. 244. The payor supra protest on payment of Rights and 

^•^ ^ -^ . ' t 1 fii^tieH of payor 

the amount of the bill and expenses, is entitled fc' i^o^or. 
to receive from the holder the bill itself and the 
protest.^ 

The payor supra protest by such payment is in- 
vested with both the rights and the duties of the 
holder as regards the party for whose honor he pays, 
and all prior parties liable on the bill to such party ; 
but all parties subsequent to him for whose honor 
payment is made are discharged.' 

iLLUSTRATIOSr. 

A dishonored bill is held by the fifth indorsee. If X. pays it 
suprdi protest for the honor of the acceptor, he acquires a right 
to re-imbursement against the acceptor alone ; if he pays for 
the honor of the first indorser, he can sue the first indorser and 
the drawer (provided they have due notice) and the acceptor, 
but the second and subsequent indorsers are discharged. 

Note. — Pothier, Nos. 113, 114, points out that the right of ' 

the payor is not, properly speaking, a right of action on the 
bill, but a right arising out of the quasi contract negotiorum 
gestorum, hence the payor cannot again negotiate the bill, or 
transfer his rights. 

' Nouguier, § 1009 ; Grerman Exchange Law, Art. 62. No English de- 
cision. 

^ German Exchange Law, Art. 63 ; Cf. Art. 206 ; Denston v. Henderson 
(1816), 13 Johns. (N. Y.), 322. No decision in England, but such is the 
practice. 

^GoodallY-PomnilSiS), 14 L. J. C. P. 146, and Wood v. Pugh 
(1836), 7 0. pt. 2, 156, duties, e.g. notice of dishonor ; Ex parte Swan 
(1868), 6 L. K. Eq. 344, rights ; Cf. Ex parte Wyld (1860), 2 DeG. F. & 
J. 642 ; French Code, Art. 159 ; German Exchange Law, Art. 63. 



244 BILLS OF EXCHANGE. [akt. 245. 

Discharge of Swety hy dealings with Principal. 

rarat'T^c'er- -^^^' ^^^' W^^fe the relationship of principal and 
with'^pSncifai. surety exists between the parties to a bill, or the 
parties to a bill transaction, and the holder, having 
notice thereof, engages to give time to or voluntarily 
discharges the principal, the surety or sureties are 
thereby discharged.-^ 

Explanation. — Prima facie the acceptor of a bill 
is the principal debtor, and the drawer and indorsers 
are as regards him, sureties, and the drawer of a bill 
is the principal as regards the indorsers, and the iirst 
indorser is the principal as regards the second and 
subsequent indorsers, and so on in order ; ^ but evi- 
dence for the present purpose is admissible to show 
the real relationship of the parties, and it is immaterial 
that the holder was ignorant of the relationship when 
he took the bill, provided he had notice thereof at the 
time of his dealings with the principal.* 

Illtjsteations. 

1. The holder of a bill takes from the acceptor in lieu of pay- 
ment a new bill payable at a future day, to which the drawer 
and indorsers are not parties. This discharges the drawer and 
indorsers.* 

3. The holder of a bill for $200 takes from the acceptor 
1100 in full discharge of his claia, but expressly reserves his 

» Oriental Corp. v. Overend (1871), 7 L. R. Ch. 142, affirmed (1874), 7 
L. R. H. L. 848. 

' Of. Cook V. Lister (1863), 32 L. J. C. P. at 127, per Willes, J. 

"Ewinv. Lancaster (1865), 6 B. & S. at 577 ; Oriental Corp. v. Over- 
end, supra ; Re Goodwin (1879), 5 DiUon (C. Ct.), 140 : GuiM v. Butler 
(1879), 127 Mass. 386. 

* Cf. Gould V. Edbson (1807), 8 Bast, 576 ; Petty v. Coohe (1871), 6 L. 
R. Q. B. at 794 ; Okie v. Spencer (1836), 2 Whart. (Pa.), 253 : Newcomb y. 
Saynor (1839), 21 Wend. (N. Y.), 108. 



J\ET. 245.] DISCBARGES. 245 

rights against the drawer and indorsers (thereby preserving Discharge of 
their rio-hts against the acceptor). The drawer and indorsers tain dealings 
are not discharged.' 

3. The holder of a bill for $100 accepts a composition of 10 
cents on the dollar from the acceptor under the Bankruptcy- 
Act. The drawer and indorsers are only discharged to the ex- 
tent of the sum received by the holder, for the acceptor is dis- 
chargef^ by operation of law.^ 

4. The holder of a dishonored bill enters into a binding 
agreement' to give time to the first indorser. This discharges 
the subsequent indorsers, but not the drawer or acceptor.^ But 
if any indorser consent to the extension of time,' or holder ex- 
pressly reserves his rights against him, he will not be dis- 
charged.* 

6. C. is the holder of a note for $200, signed by B. and X. 
0., knowing that X. signed merely to accommodate B. and as 
surety for hira, delivers up to B. a colt worth $100, pledged as . 
■security. X. is thereby discharged to the value of the security.' 

^Muir V. Crawford (1875), 2 L. R. So. Ap. 456, H. L.; Kenworthy v. 
Sawyer (1878), 125' Mass. 28 ; Pannell v. M'Mechen (1819), 4 Har. & 
J. 474. 

^Be Jacobs (1875), 10 L. R. Ch. 211 ; Cf. YgUsias v Bank (1877), 3 
L. R. C. P. D. 60 ; Guild v. Butler (1877), 122 Mass. 498 ; Burrill v. 
Smith (1828), 7 Pick. (Mass.), 291. But see Re McDonald (1876), 14 
Bank. Keg. 477. 

'Must be on valid consideration, M'Lemore v. Powell (1827), 12 
Wheat. (U. S.) 554; Brooks v. Allen (1878), 62 Ind. 401; Irvine v. 
Adams (1879), 48 Wis. 469, and for a definite time. Ward v. Wick 
(1867), 17 0. St. 159 ; Hamilton v. Prouty (1880), 50 Wis.— ; Pratherv. 
Young (1879), 67 Ind. 480, and not mere delay in suing, though injurious, 
Carpenter v. McLaughlin (1879), 12 R. I. 270. 

^Claridge v. Dalton (1815), 4 M. & S. at 232 ; Ball v.. Cole (1836), 4 
A. & B. 577 ; Cf. Fawcett v. Freshwater (1877), 31 0. St. 637 ; Thomp- 
son V. Bowve (1876), 39 N. J. L. 2 ; Hopkins v. Gray (1879), 51 la. 340 ; 
Greene v. Bates (1878), 74 N. Y. 333 ; PraU v. Eedden (1876), 121 
Mass. 116. 

' Gloucester Bank Y. Worcester (1830), 10 Pick. (Mass.), 528 ; Treat v. 
Smilh (1866), 54 Me. 112 ; Baldwin v. Bank (1831)i 5 0. 273 ; Bowling 
V. Flood (1878), 1 Lea (Tenn.), 678. But see Broadway Bank v. 
Schmucker (1879), 7 Mo. Ap. 171, holding principle not applicable to a 
release of indorser. 

« Clagett v. Salmon (1833), 5 GiU & J. (Md.) 314 ; Bagey v. Bill 
(1874), 75 Pa. St. 108 ; Cf. Paine v. Voorhees (1870), 20 Wis. 522. 

' Kirkpatrick v. Bowk (1875), 80 111. 122 ; Guild v. Butler (1879), 127 i 

Mass. 386 ; Ives v. Bank (1864), 12 Mich. 361 ; Holland v. Johnson 
(1875), 51 Ind. 346 ; Cf. Union Bank v. Cooley (1875), 27 La. An. 202 ; 
Bonnetj y.Bonney (1870), 29 la. at 452. Unless surrendered with X.'s 
consent, Pence v. Gale (1873), 20 Minn. 257. 



246 BILLS OF EXCHANGE. [aet. 245 

Discharge of 6. C. is the holder of a joint and several note made by B. 
tain dea,iings and X. X. signed merely to accommodate B., and as surety 
'' ■ for him. C, knowing this, agrees for consideration to give 
time to B. X. is thereby discharged.' 

7. C. is the holder of a joint and several note made by B. 
and X. C. knows that X. signed as surety to accommodate B. 
B. pays 0. It turns out afterwards that this payment was a 
fraudulent preference. 0. refunds the money to B.'s trustees. 
X. is not discharged by B.'s payment.^ 

8. A bill is accepted for the accommodation of the drawer. 
After it is due the holder is informed of this and then agrees to 
give time to the drawer. The acceptor is discharged.' 

9. A bill drawn by A. and accepted by B. is discounted 
with C. C. subsequently discovers that the bill was drawn 
and accepted for the accommodation of X., who is not a party 
to the bill, but who is to provide for it. C then enters into an 
agreement to give time to X. This discharges the acceptor 
of the bill.* 

NoTB. — As regards the particular dealings with a principal 
which discharge the surety, there is no difference between an 
ordinary surety and a surety on a bill, so it would be useless to 
multiply illustrations. In Farmers JSank v. Rathbone (1853),' 
it was held that the holder has a right to treat all the parties to 
a bill exactly as they appear on the instrument, and hence if 
he discharges the drawer, the acceptor is not thereby released, 
though the holder knew the bill to have been accepted for the 
drawer's accommodation ; and that this was the rule in equity 
as well as at law. This harsh doctrine giving the holder the 
absolute right to treat parties according to their ostensible po- 

' Greenouffh v. McClelland (1860), 30 L. J. Q. B. 15, Ex. Ch.; Barron 
V. Cadi/ (1879), 40 Mich. 259 ; Wheat v. Kendall (1834), 6 N. H-. 504 ; Cf. 
Guild V. Butler, (1879), 127 Mass. 386; McCloskey v. Ind. Union (1879), 
67 Ind. 86 ; Base v. Williams (1870), 5 Kana. 483. 

^ Petty M. Cooke (1871), 6 L. R. Q. B. 790; Cf. Watson v. Poague 
(1876), 42 la. 582. 

^'Ewin V. Lancaster fl865), 6 B. & S. 571 ; Meggett v. Baum 
(1879), 57 Miss. 22 ; Cf. Be Goodwin (1879), 5 Dillon (C. Ct.), 140; 
Valley Bankr. Meyers, 17 Bank. Reg. 257; Parks y. Ingram (1851), 
2 Fost. (N. H.), 283. Contra, F. efe M. Bank v. Bathhone (1852), 26 
Vt. 19. 

* Oriental Corp. v. Overend (1871), 7L. R. Ch. 142; affirmed (1874), 7 
L. R. H. L. 348. 

' 26 Vt. 19. See, also. Bank v. Walker (1823), 9 S. & R. (Pa.) 229 ; 
Murray V. Judah (1826), 6 Cow. (N. Y.) 484. 



AKT. 



246.] DISCHARGES. 247 



sition on the bill, though in so doing he violate equities of Same, 
which he is well aware, was finally established in England as 
the rule of law,'^ but the contrary is the well settled doctrine 
in equity both in England and America, as shown by the cases 
cited supra. Clearly, such is the case where the bill was taken 
by the holder with the understanding that the apparent princi- 
pal should be regarded according to his real position as surety.' 
The authorities are u-niform in applying this equitable principle 
to cases where a surety signs a note as joint maker.' 



Alterations. 

Art. 246. "Issue" means the first delivery of a issue defined. 

bill to a person who takes it as a holder for value and 

thereby acquires the right to enforce payment thereof.^ 

Illusteations. 

1. A. draws a bill on B., payable to his own order. B. ac- 
cepts the bill for value and returns it to A. The bill is issued." 

3. A draws, B. accepts, and C. indorses a bill payable to 
D. or order for D.'s accommodation. The bill while in D.'s 
hands is not issued, but if D. indorses and discounts it with E. 
it is issued.* 

Note./ — In England, under the provisions of the Stamp Act, 
the question as to when a bill has been issued is important, for 
a material alteration after issue avoids the bill entirely, and it 
is of no validity against a party who consents to the alteration, 
since it is a new bill and must be re-stamped. But if altered 
before issue, it is valid against parties who consent to the alter- 
ation.' In America this question as to issue is not material. 
. See Art. 248. 

^Fentum v. Pococh (1813), 5 Taunt. 192; Harrison v. Courtauld 
(1832), 3 B. & Ad. 87. 

2 Stillwell V. Aaron (1879), 69 Mo. 539. 

^ Wheat Y.Kendall (1884), 6 N. H. 504; Cf. Colgrove-M. Tallman 
(1876), 67 N. Y. 95 ; Millerd v. Thorn (1874), 56 N. Y. 402. 

«Cf. Ex parte Bignold (1886), 1 Deao. at 735. 

5 Cardu'ell v. Martin (1808), 9 East, 190 ; Bathe v. Taylor (1812), 15 
East, 412 ; Cf. Kennerly v. Nash (1816), 1 Stark. 452. 

« Downes v. Richardson (1822), 5 B. & Aid. 674 ; Cf. Tarleton v. 
Shingler (1849), 7 C. B. 812, Whitworth v. Adams (1827), 5 Rand. (Va.) 
at 342. 

' WeVberx. Maddocks (1811), 3 Camp. 1 ; Kennerly v. Nash (1816), 
1 Stark. 452 ; Downes v. Richardson (1822), 5 B. & Aid. 674 ; Sherring- 



24.8 BILLS OF EXCHANGE. [aet. 247. 

tfon^deflned"'^ Art. 247. Aa alteration is material which in any- 
way alters the operation of a bill aud the liabilities of 
the parties as originally fixed thereby, whethei' the 
change be prejudicial or not.^ 

Illustkations. 

1. The following are material ; — 

A particular consideration is substituted for the words value 
received ;^ or the date of a bill payable at a fixed period after 
date is altered, and the time of payment thereby postponed ^ 
or accelerated ;* or a bill payable three months after date is 
converted into a bill payable three months after sight ;* or the 
sum payable is altered, e.g. from $105 to $100 ; ° or the speci- 
fied rate of interest is altered, e.g. from 3 per cent, to 3^ per 
cent. ; ' or a bill payable " with lawful interest " is altered by 
adding the words " interest at six per cent ;* or " with inter- 
est " is added to a bill silent as to interest ;" or a non-nego- 
tiable bill is madej negotiable ;'" or a bill payable to " C. or or- 

ton v. .Termyn (1828), 3 C. & P. 374. See, too, Hamelin v. Bruck (1846), 
9 Q. B. 306. 

i Gardner Y. Walsh (1855), 5 E. & B. 83 at 89 ; Chism v. Tonmer 
(1871), 27 Ark. 108 ; Franklin Ins. Co.v. Courtney (1877), ,60 Ind. 134. 
Materiality is a question of law, Vance v. Lowther (1876), 1 L. R. Ex. D. 
176 ; Stephens v. Graham (1822), 9 S. & R. (Pa.) 505 ; Cochran v. Neh- 
eker (1874), 48 Ind. 460 ; Palmer v. Sargent (1876), 5 Nela. 223. 

^Knill V. Williams (1809), 10 Bast, 431; Of. Wright y. Inshaw 
(1842), 1 D. N. S. 802. But see Daniel, § 1394. 

^ Outhwaite v. Luntly (1815), 4 Camp. 179 ; Hirschman v. Budd 
(1873), 8 L. R. Ex. 171 ; Wood v. Steele (1867), 6 WaU. (U. S.) 80 ; 
Britton v. Dierker (1870), 46 Mo. 591. 

^Master v. Miller (1793), 2 H. Bl. 130, Ex. Ch.; Walton v. Hastings 
(1815), 4 Camp. 223 ; Browne. Straw (1877), 6 Neb. 536. 

' Long V. Moore (1799), 3 Esp. 155, u. 

« Cf. Hamelin v. Bruck (1846), 9 Q. B. 306 ; Savings Bank v. Shaffer 
(1879), 9 Neb. 1. But see Woolfolk v. Bank (1874), 10 Bush. (Ky. 504; 
Schryver v. Hawkes (1872), 22 0. St. 308 ; SmHh V. Smith ( ), 1 R. I. 
898. 

1 Sutton V. Toomer (1827), 7 B. & C. 416 ; Cf. Moore r. Hutchinson 
(1879), 69 M!o. 429 ; Schnewind v. Hacket (1876), 54 Ind. 248 ; Harsh 
V. Klepper (1876), 28 0. St. 200. 

8 Warrington v. Early (1853), 23 L. J. Q. B. 47 ; Cf. Ivory v. Michael 
(1863), 83 Mo. 398 ; Brooks v. Allen (1878), 62 Ind. 401 . 

^Bradley v. Mann (1877), 37 Mich. 1 ; Schware v. Oppold (1878), 74 
N. Y. 307 ; Lamar v. Brown (1876), 56 Ala. 235. 

i» Bruce v. Wesicott (1848), 3 Bai-b. (N. Y.) 374 ; Johnson v. Bank 
(1842), 2 B. Hon. (Ky.) 310 ; State v. Stratton (1869), 27 la. 420. 



AET. 



247.] DUTIES OF THE HOLDER. 249 



der " is changed to " C. or bearer :" ' or a particular rate of ex- Material aitera- 

„,,.,' , . , . tijn defined, 

change is indorsed on a bill which does not authorize this to be 

done ; ^ or a joint note is converted into a joint and Several 
note ; ' or a new maker is added to a joint and several note ;* 
or the name of a maker of a joint and several note is cut off;' 
or intentionally erased ; ' or a material memorandum is cut off 
or erased ; ' or a clause is added, waiving appraisement and 
exemption laws ; ° or the place of payment is altered, e.g. a 
bill is accepted payable at X. & Co.'s, and Y. & Co. is substi- 
tuted for X. & Co.; ° or a place of payment is added without 
the acceptor's consent.'" 

2. The following are immaterial : — 

A bill payable to 0. or bearer is converted into a bill paya- 
ble to C. or order ;" or "or bearer" is added to the name of 

1 Union Bank v. BoTierts (1878), 45 Wis. 373. But Cf. Flint v. Craig 
(1871), 59 Barb. (N. Y.) 319. 

2 HirschfieU v. Smith (1866), 1 L. R. 0. P. 340. Cf. Art. 13. 
^Perriiig y. Hone (1826), 4 Bing. 28; Draper v. Wood (1873), 112 

Mass 315 

^ Gardner v. Walsh (1855), 5 E. & B. 83 ; Cf. Clerh v. Blachstock 
(1816), Holt, N. P. 474 ; Humphreys v. Guillow (1843), 13 N. H. 385 ; 
hunt V. Silver (1878), 5 Mo. Ap. 186 ; Hamilton v. Hooper (1877), 46 la. 
515 i Whitmore y. Niclcerson (1878), 125 Mass. 496 ; Crandall v. First 
■Nat. Banh (1878), 61 Ind. 349, surety added, hut see Miller v. Finley 
(1872), 26 Mich. 249 ; Aldrich v. Smith (1877), 37 Mich. 468, payee 
added. But see Wallace v. Jewell (1871), 21 0. St. 163. 

^Ct Mason v. Bradley (1848), 11 M.. & W. 590; Gillett v. Sweat 
(1844), 1 GUm. (III.) 475 ; Hall v. McHenry (1865), 19 la. 522. 

^Nicholson v. Revill (1836), 4 A. & B. 675 ; Cf. McCramer v. Thomp- 
son (1866), 21 la. 244, surety; Stoddard v. Penniman (1871), 108 Mass. 
366. 

' Benedict v. Cowden (1872), 49 N. T. 396 ; Wheelock v. Freeman 
(1832), 13 Pick. (Mass;) 165 ; Johnson v. Heagan (1843), 23 Me. 329 ; 
Wait V. Pomeroy (1870), 20 Mich. 425 ; Palmer v. Sargent (1876), 5 
Neb. 223 ; Gerrish v. Clines (1875), 56 N. H. 9. 

^Holland v. Hatch (1858), 11 Ind. 497; Cf. Taddiken v. Cantrell 
(1877), 69 N. T. 597 ; Robinson v. Reed (1877), 46 la. 219. But see 
Holland v. Hatch (1864), 15 0. St. 464. 

« Tidmarsh v. Grover (1813), 1 M. & S. 735 ; Cf. Nazro v. Fuller 
(1840), 24 Wend. (N. T.) 374. But see American Bank v. Bangs (1868), 
42 Mo. 450. 

i» Calvert v. Baker (1838), 4 M. & W. 417 ; Burehfield v. Moore (1854"), 
28 L. J. Q. B. 261 ; WhitesidesM. Bank (1874), 10 Bush (Ky.) 501 ; Cf. 
Hanbury v. Lovetf (1868), 18 L. T. N. S. 866 ; Toomer v. Rutland 
(1876), 57 Ala. 379 ; Townsend v. Star Co. (1880), 10 Neb. 615: Qu. if 
acceptor consent, Walter v. Citbley (1833), 2 Cr. & M. 151, and Cf. Ma- 
son v. Bradley, supra, at 594 ; bub see Gibbs v. Mather (1832), 2 Cr. & J. 
at 262 ; Saul v. Jones (1858), 28 L. J. Q..B. 37, which show that the po- 
sition of drawer and indorser is altered. 

" Attwood V. Griffin (1826), 2 C. & P. 368. Sed qu. 



250 BILLS OF EXCHANGE. [aet. 248. 

Material altera- the payee of a note payable on a contineency :' or an indorsa- 
tion defined. x-UlT- ^ A • ^ -l-J 4.2 

ment m blank is converted into a special indorsement. ;f or 
the words " on demand " are added to a note in •which no time 
of payment is expressed; ' or a bill addressed to B. and X., 
under the style of " B. X. and Co.," is accepted by them as " B. 
and X.," and the address is afterwards altered to "B. and X." 
to make it correspond with the acceptance ; * or an erroneous 
" due date " is added to a bill ; ' or a rate of interest void for 
usury is inserted ,' or the descriptio personce is erased from the 
signature of a bill, e.g. " B., Trustee of the X. Church." ' 

Effect of alter- Art. 248. A material alteration by the holder o£ 

ationonbill. , , , . , . , 

a bill, discharges all parties who do not consent there- 
to, from liability on the bill.® 

Illustrations. 

1. C, the holder of a note, makes an immaterial alteration. 
This in no way affects the right of C. or any subsequent holder 
to recover on the note, though the alteration was fraudulently 
made.' 

2. C. makes a material alteration, e.g. adds " with interest " 
to the bill, -believing the added stipulation was omitted by 
mistake. C. cannot maintain suit against anyone on the bill, 
either as altered^" or as it was before alteration," unless the de- 

^Ooodenow v. Curtis (1876), 33 Mich. 505. 

s See Art. 118. 

^Aldous v. Cornwall fl868), 3 L. R. Q. B. 573 ; Cf. Art. 18. 

^Farquar v. Sowthey (1826), M. & M. 14 ; Arnold v. Jones, ( ), 
2 R. I. 345 ; Cf. Smith v. Loekridge (1871), 8 Bush. (Ky.) 425 ; Art. 37. ^ 

^Fanshawe v. Peat (1857), 26 L. J. Ex. 314. 

« Patton V. Shanklin (1853), 14 B. Mon. (Ky.) 15 ; Cf. CaUon v. Simp- 
• son (1838), 8 A. & E. 136 ; Leonard v. Phillips (1878), 39 Mich. 182, 
" annually " added to note payable " with interest." 

' Hayes v. Brubaker (1878), 65 Ind. -27 ; BurUngame v. Brewster 
(1875), 79 lU. 516 ; McGmnness v. Bligh (1874), 11 R. I. 94. 

'Master v. Miller (1793), 2 H. Bl. 130 Ex. Ch., 1 Smith, L. C, 7th ed. 
871,* and notes ; Wade y. Withington (1861), 1 Allen (Mass.), at 562. 
» ^BurUngame v. Brewster (1875), 79 111. 5i5 ; Moye v. Herndon (1855), 
30 Miss. 110 ; Cf. Miller v. FinUy (1872), 26 Mich. 249 ; Commonwealth 
V. Bank (1867), 98 Mass. 12. 

^''Fay V. Smith (1861), 1 Allen (Mass.), 477 ; Cf. Burchfield v. Moore 
(18.54), 23 L. J. Q. B. 261 ; Bradley v. Mann (1877), 37 Mich. 1 ; Moore 
V. Hutchinson (1879), 69 Mo. 429 ; Coburn v. Webb (1877), 56 Ind. 96. 

" Citizens' Bank y. Richmond (1876), 121 Mass. 110 ; Contra, Worrall 
y. Gheen (1861), 39 Pa. St. 388 ; Myers v. Nell (1877), 84 Pa. St. 369 at 
373. 



ABT. 248.] DISCHARGES. 251 

fendant authorized or assented to the alteration, e.ff. by part Effect of altera^ 

■ 11 /.ii •! T ^ .1 i. tiononbill. 

payment with knowledge of the alteration. ' 

3. C, the payee of a note for $10, alters it into a note for 
$110, and transfers it to D., who takes it for value and without 
notice of the alteration. D. cannot recover of the maker, al- 
though there was nothing in the appearance of the note to ex- 
cite suspicion, and the negligence of the maker in leaving 
blank spaces afforded the opportunity for the fraud.^ 

4. X. indorses for the accommodation of B. a note made by 
him payable to 0. Before its issue (Art. 34£) B. makes a ma- 
terial alteration, e.gr. inserts X.'s name as payee also, and delivers 
the note to C. X. is discharged, and B. is liable as sole 
maker.' But if X. afterwards assent to the alteration, he is 
liable.* 

5. B. executes a note payable to 0. and delivers it to X., 
who is C.'s agent. X., without authority, makes a material 
alteration before delivering it to C. B. is not discharged. The 
alteration was the act of a stranger (spoliation), and of no effect.* 

Exception 1. — If an altered bill is restored to its 
original form, and transferred to a bona fide holder, 
he may recover against all parties thereon.* 

' Evans v. Foreman (1875), 60 Mo. 449 ; Goodspeed v. Cutler (1874), 
75 111. 534 ; Stoddard v. Penniman (1873), 113 Masa. 386 ; Stewart v. 
Bank (1879), 40 Mich. 348. Aliter, in England under Stamp Act, see 
Art. 246, n. 

" Greenfield Bank v. Stowell (1877), 123 Mass. 196 ; Holmes v. Trum- 
per (1871), 22 Mich. 427 ; Knoxville Bank v. Clark (1879), 51 la. 264. 
Contra, Brown v. Reed (1875), 79 Pa. St. 370 ; Seihel v. Vaughan (1873), 
69 m. 257 ; Capital Bank v. Armstrong (1876), 62 Mo. 69, at 67, 68 ; 
Cornell v. Neheker (1877), 58 Ind. 425. 

^Aldrich-f. Smith {\?,ll),il Mich. 4&S,; Hamilton y. Hooper (1877), 
46 la. 515 ; Draper v. Wood (1873), 112 Mass. 315 ; Wood v. Steele 
(1867), 6 Wall. (U. S.), 80. 

* Even in England, as the bill had not been issued, and required no new 
stamp, Webber v. Maddocks (1811), 3 Camp. 1 ; Kennerly v. Nash 
(1816), 1 St^k. 452 ; Doivnes v. Richardson (1822), 5 B. & Aid. 674 ; 
Sherrington v. Jermyn (1828), 3 C. & P. 874 ; Wright v. Inshaw (1842), 
1 D. N. S. 802. Art.' 246 and note. 

^Brooks V. Allen (1878), 62 Ind. 401 ; Langenberger v. Kroeger (1874), 
48 Cal. 147 ; U. S. v. Spalding (1822), 2 Mason (C. Ct.) at 482, Story, J.; 
Gorden v. Robertson (1879), & Wis. 493 ; Dinsmore v. Duncan (1874), 
57 N. Y. at 581. Contra m England, Davidson v. Cooper (1843), 11 M. 
& W. at 799, affirmed (1844), 13 M. & W. 343. 

'Shepard v. Whetstone (1879), 51 la. 457 ; Horst v. Wagner (1876), 
43 la. 373 ; Kcj,ntg v. Kennedy (1869), 63 Pa. St. 187 j Cf. Robinson v. 



252 . BILLS OF EXCHANGE. [aet. 249. 

S™*onbm°''^ Exception 2. — A bill may at any time be altered 
for the purpose of correcting a mistake,^ and bring- 
ing the instrument into accordance witb the intention 
of the parties at the time of issue.^ 
Illusteation. 

A bill payable after date is wrongly dated,' or a note in- 
tended to be negotiable is made payable to C. simply, the 
words *' or order " being omitted.* The mistake may be cor- 
rected after the bill has been negotiated. 

Note. — The court in the exercise of its equitable jurisdic- 
tion has power to rectify a bill which does not express the in- 
tention of the parties,' just as it can do so in the case of any 
other contract. It will be noticed that in America the in- 
dorser of an altered bill is liable, as such, to any subsequent 
holder, but that in England, the Stamp Act makes it other- 
wise. • See Art. 319, n. 

Effect of altera- Art. 249. The holder of a bill which has been 

tioii on con- 
sideration, avoided by a material alteration cannot sue on the 

consideration in respect of which it was negotiated to 

him.^ 

Exception 1. — If tbe bill was negotiated to him 

after the alteration was made, and he was not privy 

to the alteration, he may sue on the consideration.^ 

Reed (1877), 46 la. 219 ; WJiitmore v. Nickersm (1878), 125 Mass. 496. 
But see Citizens' Bank v. Richmond {}&1S), 121 Mass. 110. 

1 Of. Knill V. Williams (1809), 10 East, 431 ; Ex parte White (183S), 

2 Deac. & Ch. at 858, 359 ; Hamelin v. Bruch (1846), 9 Q. B. at 310 ; 

London BankY. Roberts (1874), 22 W. R. 402 ; AmesY. Colbum (1858), 

11 Gray (Mass.), 390 ; McRaven v. Cm?er (1876), 53 Miss. 542 : Booth v. 

» Potvers (1874), 56 N. Y. 22. 

" Bradley v. Bardsley (1845), 14 M. & W. 873 ; Of. Bank v. Bank 

• (1855), 13 "N.y. 309. 

''Bruit V. Pica/rd- (1824), R. & M. 87. But see Miller v. Gilleland 
(1852), 19 Pa. St. 119. 

^Kershaw v. Cox (1800), 3 Bsp. 246 : Byrom v. Thompson (1839), 11 
A. & E. 81 ; Cariss v. Tattersall (1841), 2 M. & Gr. 890 ; Of. Art. 107. 

• s Bruiff V. Parker (1868). 4 L. R. Bq. 131. 

I ^ Alderson v. LangdaU (1832), 8 B. & Ad. 660 ; WheelockY. Freeman 
(1832), 13 Pick. Mass.), 165 ; Meyer v. Huneke (1874), 55 N. T. 412 ; 
Vogle V. Ripper (1864), 34 111. 100 ; Smith v. Mace (1863), 44 N. H. 553. 
■'Burch/ield v. Moore (1854), 23 L. J. Q. B. 261 ; Cf. Cundy v. Mar- 
riott (1831), 1 B. & Ad. 696. And, also, on the bill, supra. 



AET. 2oO-51.J DISCHARGES. 253 

Exception 2. — If the holder was privy to the alter- Effeot^of^aitera- 
ation, he can still recover provided (a) that he did ''""'""'■ 
not intend to commit a fraud by the alteration,^ and 
(b) that the party sued would not have had any 
remedy over on the bill, if it had not been altered. 

< Iliustkations. 

1. A. sells goods to B., and draws a bill on him for the price) 
payable to his own order. B. accepts. A., intending no fraud, 
makes a material alteration of the bill. A- can sue B. for the 
price of the goods though no action could be brought on the 
bill.^ 

2. C. sells goods to A., who draws a bill on B. for the price, 
and indorses it to 0. B. accepts. C, intending no fraud, 
makes a material alteration of the bill. C. cannot sue A. for 
the price of the goods, for the alteration has deprived A. of his 
remedy on the bill against B.^ 

Art. 250. Where a bill appears to have been onus probanrii 
altered, or there are marks of erasure on it, tjie party 
seeking to enforce the instrument is bound to give 
evidence to show that it is not avoided thereby.* Cf. 
Art. 138. 



Renewal. 



Art. 251. When a bill is given in renewal of a 
former bill, and the holder retains such former bill, 

^Hunt V. Gray (1871), 35 N. J. L. 227 ; Clough v. Seay (1878), 49 la. 
Ill ; Savings Bank v. Shaffer (1879), 9 Neb. 1. 

^Atkinson y. Hawdon (1835), 2 A. & E. 628 ; Clute v. Small (1837), 
17 Wend. (ST. T.) 238 ; Cf. Sutton v. Toomer (1827),. 7 B. & C. 416, and 
Merrick: v. Boury (1854), 4 0. St. 60, payee against maker of note. 

^ Alderson v. Langdale (1832), 3 B. & Ad. 660 ; see by way of analogy 
the effect at common law of the loss of a bill, Crowe v. Clay (1854), 9 
Exch. 604. 

"■ Knight v. Clements (1838), 8 A. & E. 215 ; Clifford v. Parher (1841), 
2 M. & Gr. 909 : Wilde v. Armshy (1850), 6 Gush. (Mass.), 314 ; Simpson 
V. Stachhouse (1848), 9 Pa. St. 186 ; Willett v. Shepard (1876), 34 Mich. 
106 ; Page v. Danaher (1877), 43 Wis. 221 ; GilUtt v. Sieeat (1844), 1 
GHm. (m.) 475 ; Chism v. Toomer (1871), 27 Ark. 108 ; Cf. Totum v. 



254 BILLS OF EXCHANGE. [aet. 251. 

Effectofre- the renewal, in the absence of special agreement,^ 
operates merely as a conditional payment thereof. If 
the renewed bill be paid in due course or otherwise 
discharged, the original bill is likewise discharged ; ^ 
but if the renewed bill be dishonored, then subject to 
Art. 245, the liabilities of the parties to the original 
bill revive and they may be sued thereon.^ 

Note. — When there is an agreement to renew, the applica- 
tion for renewal must be made within a reasonable time of the 
maturity of the original bill, but it need not be made before its 
maturity.* When the holder of a renewed bill could not have 
maintained an action on the original bill because there was no 
consideration for it,^ or the consideration was illegal,' or be- 
cause he was privy to some fraud connected therewith,' he can- 
not sue on the renewed bill.' 

mil as Payment. — A bill given in renewal of another bill 
operates in the same way as a bill given in respect of any 
other debt. The ordinary effect of giving a bill is that the 
remedy for the debt is suspended until the dishonor of the bill, 

CatoOT5r« (1851), 16 Q. B. at 746 ; see, e.g., Cariss v. Tattersall, supra, 
as to whaf evidence suflSces. But see Paramore v. Lindsey (1876), 63 
Mo. 63 ; Jones v. Ireland (1856), 4 la. 63, at 71 ; Corcoran v. Doll (1867), 
32 Cal. 82 ; Huntington v. Finch (1854), 3 0. St. 445 ; Meihel v. Sav. 
/»si. (1871), 36 Ind. 355. 

1 Cf. Lewis V. Luster (1835), 2 C. M. & R. 704; Lumley v. Musgrave 
(1837), 4 Bing. N. C. at 15 ; Arnold v. Camp (l815), 12 Johns. (N. Y.), 
409 ; Wilbur v. Jernegan (1875), 11 R. I. 133 ; Archibald v. Argall 
(1870), 53 m. 307. 

• 'Billon V. Eimmer (1822), 1 Bing. 100 ; Cf. Soward v. Palmer (1818), 
2 Moore,- 274 ; LrnnUy v. Hudson (1837), 4 Bing. N. C. 15. 

^Ex parte Barclay (1802), 7 Ves. Jr. 597 ; Norris v. AyleU (1809), 2 
Camp. 329 ; Cf. Kendrich v. Lomax (1832), 2 Cr. & J. 405 ; Sloman v. 
Cox (1884), 1 C. M. & R. at 472 ; WeUh v. Allington (1863), 23 Cal. 322 ; 
First Nat. Bank v. Morgan (1876), 6 Hun (N. T.), 346. But see Com- 
uull V. Gould (1827), 4 Pick. (Mass.)444, and next note. 

^Maillard v. Page (1870), 5 L. R.Ei. 312 ; Cf. Innes -j.Munroe (1847), 
1 Exoh. 473 ; Torrance v. Banlc (1874), 5 L. R. P. C. 246, as to construc- 
tion of agreements to renew. 

s Southall V. Bigg (1851), 11 C. B. 481 ; Hill v. Buchminster (1827), 5 
Pick. (Mass.) 391 ; Copp v. Sawyer (1833), 6 N. H. 386. 

» Chapman v. Black (1819), 2 B. & Aid. 588 ; Hay v. Ayling (1851), 16 
Q. B. 423 ; Holden v. Cosgrove (1858), 12 Gray (Mass.), 216 ; Nat. Bank 
V. Eyre (1879), 52 la. 114; Gates v. Union Bank (1873), 12 Heisk. 
(Tenn.) 325. 

' Lee V. Zagury (1817), 8 Taunt. 114 ; Sawyer v. Wiswell (1864), 9 
Allen (Mass.), 39. 

*See, however, two apparent but not real exceptions, Mather v. 
Maidstone (1855), 18 C. B. 273 ; Flight v. Reed (1863), 1 H. & C. 703. 



AET. 



251.J DISCHARGES. 255 



The bill operates as conditional payment, the condition being Effect of re- 
ftiat the debt revives if the bill cannot be realized.' It is im- "®"°' • 
material whether the bill be payable on demand or in futttro." 
But the contrary presumption that a negotiable bill' or note, 
is received in extinguishment and satisfaction of a pre-existing 
debt, prevails in Maine, Massachusetts and Vermont.* In 
France in the absence of special agreement the renewal of a 
bill extinguishes the original bill by novatio.'^ 

^Haines v. Pearce (1874), 41 Md. 221 ; Huse v. McDaniel (1871), 33 
la. 406 ; Griffim v. Grogan (1859), 12 Cal. 317 ; Stevens v. Park (1874), 
73 m. 387, and Kermeyer v. Newhy (1875), 14 Kans. 164, check. 

^Currie v. Misa (1875), 10 L. E. Ex. at 163, 164, Ex. Ch. 

' But see Alcoch v. Hopkins (1850), 6 Cush. (Mass.) 484. 

* Fowler v. Bush (1838), 21 Pick. (Mass.) 230; Appleton Y.Parker 
(I860), 15 Gray (Mass.) 173 ; Varner v. Ndbleborough (1822), 2 Greenl. 
(Me.) 121 ; Stephens v. Thompson (1855), 28 Vt. 77. Aliter, in case of 
checks, Marrett v. Brackett (1872), 60 Me. 524 ; Weddigen v. Boston F. 
Co. (1868), 100 Mass. 422. 

'■Nouguier, §§ 1032-1042. 



CHAPTEE VIII. 

LIMITATIONS. 
Statute of Limitations. 

iw"5>m?ited Art. 252. Subject to Arts. 191 and 253, no action - 
sfverai parties, on & bill Can bc maintained against any party tliereto 
after the expiration of six years from the time when a 
cause of action first accrued to the then holder against 
such party .-^ 

Illxtsteatiost. ' 

C. is the holder of a dishonored bill. Three years after the 
dishonor he indorses the bill to D. D. must sue the acceptor 
within the next three years, though he has six years within 
which he may sue 0. 

Explanation 1. — As regards the acceptor, time be- 
gins to run from the maturity of the bill, unless — 

(1.) Presentment for payment is necessary in order 
to charge the acceptor, in which case time 
(probably) runs from the date of such present- 
ment;^ or 

(2.) The bill is accepted after its maturity, in which 
case time (probably) runs from the date of ac- 
ceptance.^ 

iLLtrSTEATIOirS. 

1. Bill payable in futuro, e.g., three months after date or 

'Cf. 21 Jac. 1, 0. 16. Whitehead v. Walker (1842), 9 M. & "W. 506 : 
Woodruff Y. Moore (1850), 8 Barb. (N. Y.), 171. 
^Picquet V. Curtis (1833), 1 Sunm. (C. Ct.) 478 : Cf. Art. 172. 
= Cf. Art. 34. 

(256) 



AET. 252.] LIMITATIONS. 257 

sight. Time rirns in favor of the acceptor from the day the Limitation. 

. , , . , 'how compu- 

bill is payable, not from the day the acceptance is ffiven.' tea against the 

, . several parties. 

2. B. in 1840 gives a blank acceptance to C. In 1850 it is 

filled 'up as a bill payable three months after date, and nego- 
tiated to a bo?id fide holder. Time runs in favor of B. ' from 
the day the bill -was payable.' 

3. Note payable on demand (with or without interest), and 
issued on the day it bears date. Time runs in favor of the 
maker from the datQ of the note, and not from the date of de- 
mand.' 

4. Note payable on demand, dated January 1, is not issued 
till July 1. Time runs in favor of the maker from July 1, the 
day of issue.* 

5. Note payable three months after demand. Time runs in 
favor of the maker from the day the bill is payable." 

Explanation 2. — As regards the drawer or an in- 
dorser, time (generally) begins to run from the date 
when notice of dishonor is duly sent.* 
Illustrations. 

1. Bill payable ninety days after sight is dishonored by non- 
acceptance. As regards the. drawer time runs against the 
holder from the dishonor by non-acceptance and notice thereof. 
If the bill is presented for payment and again dishonored, no 
fresh cause of action arises.' 

2. A. draws a bill on B. C. indorses it for A.'s accommoda- 
tion. The bill is dishonored, and five years after the dishonor, 

1 Holmes V. Kerrison (1810), 2 Taunt. 323 ; Cf. Fryer v. Eoe (1852), 
12 C. B. 437. See Art. 20, computation of time of payment. 
L} Montague v. Perkins (1853), 22 L. J. C. P. 187. Cf. Art. 23. 

'^Norton v. Mlam (1837), 2 M. &'"W. 461 ; WheeUr^. Warner (1872), 
47 N. T. 519 ; De Lavalette v. Wetidt (1879), 75 N. Y. 579 ; Newman v 
Kettelle (1832), 13 Pick. (Mass.) 418. 

* Savage TT. Aldren (1817), 2 Stark. 232; Cf. BicTiards v. Richards 
(1831), 2 B. & Ad. 447 ; Watkins v. Figg (1863). 11 W. R. 258 : Hill v. 
Her(ry (1848), 17 0. 9. 

« Thoi-pe V. Comhes (1826), 8 D. & R. 347 ; Uttle v. Blunt (1830), 9 
Pick. (Mass.) 488 ; Wenman v. Ins. Co. (1835), 13 Wend. (N. Y.) 267 : 
Cf. Way V. Bassett (1845), 5 Hare, 55. 

» Cf. Shed V. BreU (1823), 1 Pick. (Mass.) 401. Cf. Art. 189. AUter, 
in England, see next note. 

' Whitehead v. Walker (1842), 9 M. & W. 506 : Cf. Woodv. McMeans 
(1859), 23 Tex. 481. 



258 BILLS OF EXCHANGE. [aet. 252 

Limitation, C, as indorser, is obliged to pay the holder. Two years later 
against the (t. e., seven years after the dishonor), C. sues A. on the bill, 
ties. The action is barred. AUter, if C sued A. on the implied con- 

tract of indemnity.' 

3. C. is the indorser of a bill or note payable on demand. 
Time (presumably) does not begin to run in favor of C. until 
demand has been made abd notice given. 

Note. — In England it is held that the holder's rig'ht of ac- 
tion against the drawer or an indorser is not complete until no- 
tice of dishonor is received ; ^ when then does the cause of ac- 
tion arise when the notice is delayed or lost in the post? (Cf. 
Art. 193.) Perhaps from the time when it ought to have been 
received. In America the balance of authority favors the view 
that the cause of action is complete when noticfi of dishonor is 
sent.' In cases where notice of dishonor is unhecessary (Art. 
300) probably the cause of action arises on dishonor. 

Mcplanation 3. — When an action is brought 
against a party to a bill, to enforce an obligation 
collateral to the bill, though arising out of the bill 
transaction, the nature of the particular transaction 
determines the period from which time begins to run. 

Iliustrations. 

1. B. accepts a bill to accommodate the drawer. It is dis- 
honored, and two years afterwards B. is compelled to pay the 
holder. B. sues the drawer on the implied agreement to in- 
demnify. Time runs from the date B. was compelled to pay, 
and not from the maturity of the bill.* 

3. B. authorizes A., an agent abroad, to draw upon him for 
the price of goods to be shipped to B. B. dishonors a draft so 

" Welster v. Kirk{\WZ). 17 Q.,B.-944 ; Cf. Godfrey v. Bice (1870), 59 
Me. 308 ; Bulloch v. Campbell (1850), 9 GiU. (Md.), 182. But cf. Wood- 
ruf V. Moore (1850), 8 Barb. (N. Y.), 171 ; Kennedy v. Carpenter (1836), 
2 Whart. (Pa.) 344. 

2 Castriciue v. Bernabo (1844), 6 Q. B. 498. 

8 Shed V Brett (1823), 1 Pick. (Mass.) 401 j Manchester Bank v. Fel- 
lows (1854), 8 Post. (N. H.), 302. Contra, Smith v. Banh (1819), 5 S. & 
E. (Pa.) 318. 

* Reynolds v. Doyle (1840), 1 M. & Gr. 753 ; Angrove v. Tippett(\\i^h), 
11 L. T. N. S. 708 ; Cf. Burton v. Rutherford (1872), 49 Mo. 7'2. But cf. 
Coppin V. Gray (1842), 11 L. J. Ch. 105, as to a premature payment ; see 
Davies v. Htimphries (1846), 6 M. & W. 153, contribution among co- 
maJiieis. 



AET. 253.] LIMITATIONS. 259 

drawn, and A. is compelled to take it up. A. can sue B. on Limitation, 

■ . „-. !■ L J ^"^^ oomputea 

an implied contract to indemnify. Time runs from the date against the 

-A 11 1 1 several par- 

■when A. was eonipelled to pay.' ties. 

3. A., intending ttf lend C. $50, draws a check in C.'s favor 
for that sum. A. sues C. to recover the loan. Time runs from 
the date when the check was cashed.'' 

Note. — See Art. 230, n., distinguishing a right of action on a 
bill from a right of action which a party to a bill may have 
arising oijt of the bill transaction but independent of the iq- 
strum ent.' Foreign laws and conflict of laws. — ;In France the 
period of limitations is five years, and the time it seems begins 
to run against acceptor, drawer, and indors^ers from the day of 
protest.' By German Exchange Law, Art. 77, the limitation 
as regards the acceptor is three years, starting from the maturi- 
ty of the bill ; but as regards the drawer or indorsers it is three 
months, starting from the day of protest, if the drawer or in- 
dorser live and the bill be payable in Europe. Where laws con- 
flict as to time of limitation, and the limitation, as in England, 
merely bars the remeiily, the lex fori governs.* Aliter, proba - 
bly, when lapse of time operates as a discharge. Cf. Art. 331 

Art. 253. Any circumstance which postpones or statute, how 

■ ^1 i> T • • • "lefeated. 

defeats the operation of the statute of hmitations m • 
the case of an ordinary contract, postpones or defeats 
it in like manner in the case of a bill. 
Illustrations. 

1. The holder of an accepted bill dies intestate before its 
maturity. The statute does not begin to run until an adminis- 
trator is appointed.' 

2. The holder of a bill at the time of its dishonor is a minor 
or a -married woman or a lunatic. The statute does not begin 
to run against such holder until the disability ceases.' 

' Himtlny V. Sanderson (183S), 1 Cr. & M. 467 ; Cf. King v. Hannah 
(1880), 6 Bradw. (111.) 495. 

■^ Garden v. Bruce (1868), 3 L. R. C. P. 300. 

"French Code, Art. 189 ; Nouguier, § 1605. 

*Don V. Lippman (1837), 5 Cl. & P. 1 H. L.; LeBoipr. Crouminshield 
(1820), 2 Mason (C. Ct.), 151 ; Putnam v. DiJce (1859), 13 Gray (Mass.), 535. 

' Murray v. East India Co. (1821), 5 B. & Aid. 204 ; AbboU v. McEl- 
roy (1848), 10 Sm. & M. 100 ; Wenman v. Ins. Co. (1835), 13 Wend. (N. 
Y.), 267 ; see conversely, Maxivell v. TusJM (1878), 1 Ir. L. R. Ch. D. 
' 250, and Conant v. Hitt (1840), 12 Vt. 285, death of acceptor intestate. 

» Cf. 21 Jac. 1, c. 16 ; Scarpelini v. Atcheson (1845), 7 Q. B. 864. 



260 BILLS OF EXCHANGE. [aet. 253. 

statute, how 3. Note payable on demand with interest. Four years 
after its issue the holder sues the maker for interest and re- 
covers. Three years later («*. e., seven years after issue of note) 
the holder sues the maker on the note. The action is barred.' 
AlUer, if the payment of interest had be en voluntary.' 

4. An acknowledgment in writing signed by the party 
sought to be charged defeats the operation of the statute, e,g., 
the maker of a note twenty years after its maturity signs his 
name on the back and adds the date. The holder can sue the 
maker within six years after this acknowledgment.' 

Note. — A verbal acknowledgment of an existing liability 
on the bill defeats the operation of the statute at common 
laWf By the statute of 9 Geo. 4, o. 14, s. 3, no indorse- 
ment or memorandum of any payment written or made upon a 
bill by or on behalf of the party to whom such payment is made, 
is sufficient to defeat the operation of the statute. But the rule 
is otherwise at common law.* When the statute begins to run 
nothing stops it. It is clear then that if a dishonored bill be 
indorsed to an infant the time still runs on.' On the other 
hand, if the holder of a bill at the time of dishonor be an in- 
fant, and he subsequently indorse it while still an infant to an 
f aduM, it is conceived that the statute runs from the indorse- 
ment. It seems that an acknowledgment to the holder inures 
for the benefit of a subsequent holder.' 

' Morgan v. Rowlands (1872), 7 L. R. Q. B. 493 ; see, also, Harding v. 
Edgecumbe (1859), 28 L. J. Ex. 313, payment by agent ; Goodwin v. 
Bmzell (1861), 35 Vt. 9. 

" Green v. Greensboro College (1880), 83 N. C. 449. 

' Bourdin v. Greenwood (1872), 13 L. R. Bq. 281. See as to acknowl- 
edgments, Be River Steamer Co. (1871), 6 L. R. Ch. at 828, Mellish, L. 
J.; Chasemore v. Turner (1875), 10 L. R. Q. B. 500, Ex. Ch. 

* Clark V. Burn (1378), 86 Pa. St. 502. 

'Rhodes v. Smethurst (1840), 6 M. & W. 351, Ex. Ch.; Cf. Abbott v. 
McElroy (1848), 10 Sm. & M. 100. ■ 

"Uttle V. Blunt (1830), 9 Pick. (Mass.), 488 ; Dean v. Hewitt (1830), 5 
Wend. (N. T.), 257 ; Cf; Cripps v. Dams (1842), 12 M. & W. 159. 



CHAPTEE IX. 

PROVISIONS PECULUR TO CHECKS. 

[Explanatory Head-note. — ^The term "bill " as used in the arti- 
des of this digest, includes checks as ■well as ordinary bills of ex- 
change ; and subject to the provisions of this chapter, the pro- 
visions of the digest relating to Ijills of exchange payable on de- 
mand apply equally to checks. ' See Introd., p. iv., and head- 
note to Chap. I.] 



Art. 254. A check is a bill of exchange ^ drawn check deanea. 
by a customer on his banker ^ payable on demand.* 

Note. — See checks compared with and distinguished from 
ordinary bills of exchange by Parke, B.,* Erie, J., and Byles, 
J.,' Palles, C. B.,° and the Supreme Court of the United 
States.' All checks are bills of exchange, but all bills of ex- 
change are not checks, therefore an authority to draw checks \ 
does not necessarily include an authority to draw bills (cf. Art. 
73). Apart from statute the distinctions between checks and 
ordinary bills of exchange arise from the relationship of banker 

' Cf. Eyre v. Walker (1860), 29 L. J. Ex. 246 ; Hophinson v. Forster 
(1874), 19 L. R. Eq. 74 ; Barker v. Anderson (1839), 21 Wend. (N. T.), 
372 ; Bickford v. Bank (1866), 42 111. 238 ; 33 & 34 Vict. c. 97, § 48. 

2Cf. Bowen v. Newell (1853), 8 N. Y. 190 ; Attorney Genl. v. Ins. Co. 
(1877), 71 N. Y: 325 at 332 ; 23 & 24 Vict. c. Ill, § 19 ; 39 & 40 Vict. c. 
81, § 3. 

3 Id.; Forster-f. Mackreth (1867), 2L. R. Ex. 163; Woodruffs. Bank 
(1841), 25 Wend. (N. Y.), 673 ; Morrison v. Bailey (1855), 5 0. St. 13 ; 
Cf. Andrews. Blachly (1860), 11 0. St. 89 ; Minium v. Fisher (1854), 4 
Cal. 36 ; Ctitler v. Remolds (1872), 64 IH. 321. But see In re Brown 
(1843), 2 Story (C. Ct.), 502 ; Champions. Gordon (1872), 70 Pa. St. 475 ; 
Westminster Bank v. Wheaton (1856), 4iR. I. 30, payable afterdate. 

^Bamchurnv. Lackmeechund (1854), 9 Moore P. C. at 69. 

^KreneY. Beard (1860), 8 C. B. N. S. at 380, 881, as modified by 
Hcpkin on v. Forster, supra, at 76, Jessel, M. E. 

^L/iui V. Bell (1876), 10 Ir. R. C. L. at 490, 

'■Merchants' Bank v. State Bank (1870), 10 Wall. (U. S.) at 647 ; see, 
also, Morrison v. Bailey (1855), 5 0. St. 13. 

(261) 



262 BILLS OF EXCHANGE. [aet. 256-57, 

Check defined, and customer necessarily subsisting between the drawer and 
drawee of a check. See further the notes to Arts. 5, 67, 78, 
105, 160, 163. A check is intended for' prompt presentment, 
while a note payable on demand is deemed to be a continuing 
security.' In France, checks are regulated by the " Loi du 33 
Mai, 1865," which defines a check as "L'&rit qui sous la forme 
d'un mandat de paiement sert au tireur k effectuer le retrait a, 
son profit ou au profit d'un tiers de tout ou partie des fonds 
portfe au credit de son oompte et disponibles." 

Acceptance of .^^.j.^ £56. A check is Dot intended for acceptande, 

but for prompt presentment and payment.^ 

Note. — At common law there is no objection to the accept- 
ance of a check,^ but in England, the Bank Charter Acts would 
in most cases render this illegal. Certified Checks. — The prac- 
tice of certifying checks as " good," either by writing thereon, 
or verbally,* prevails extensively in the United States, and the 
, effect, of such certification is to discharge the drawer and to 
make the bank the primary and principal debtor,* and the 
check may then be kept in circulation,' Like the acceptance 
of a bill, the certification of a check, while it admits the signa- 
ture of the drawer in favor of a bond fide holder, it does not 
estop the bank from setting up a forgery in the body of the check 
when certified.' 



seutment. 



wSOTpre- -A-rt 257, A check is deemed to have been pre- 
sented within a reasonable time when presented ac- 
cording to the following rules : — 

(1.) If the person who receives a check and the 
banker on whom it is drawn are in the same 

^Broohs V. Mitchell (1841), 9 M. & W, at 18, Parke, B.; Chartered 
Bank v. Dickson (1871), 3 L. B. P. C. at 579, Ld. Cairns ; Of. Art. 285. 

^ Cf. Bamchurn v. Lachmeeehund (1854), 9 Moore, P. C. at 69, Parkp, 
B. ; Fegley v. 'McDonald (1879), 89 Pa. St. 128. 

sCf. Rohson V. Bennet (1810), 2 Taunt. 388 ; Pollard v. Bank (1871), 

6 L. R. Q. B. 623 ; Goodwin v. Robarts (1875), 10 L. R. Ex. at 351, 352 ; 

Merchants Bank v. State Bank (1870), 10 Wall. (U. S.), at 647. 

.^Espy V. Bank (1873). 18 WaU. (U. S.), 604; Cf. Bamet v. Smith 

(1855), 10 Post. (N. H.) 256 ; Pope v. Bank [1811). 59 Barb. (N. T.) 226. 

^ First Nat. Bank v. Leaeh (1873), 52 N. T. 350 ; Cf. Meads v. Bank 
(1862), 25 N. Y. 143 ; Mutii,al Bank v. Rotge (1876), 28 La. An. 933. 
But see Brown v. Leekie (1867), 43 111. 497 : Bickford v. Bank (1866), 
42 III. 238. ^ " . 

"Nolan v. Bank (1873); 67 Barb. (N. T.) 24. 

''Security Bank v. Bank (1876), 67 N. Y. 458 ; Marine- Bank v. City 
Bank (1874), 59 N. Y, 67, Contra, La. Bank v. Bank (1876), 28 La. 
An. 189, 



AET. 257.] PROVISIONS PECULIAR TO CHECKS. 



263 



place, the check must, in the absence of special ^^^°(S?^^'^e- 
circumstances/ be presented for payment on^™*™"'''' 
the day after it is received.^ 
(2.) If the person who receives a check and the 
banker on whom it is drawn are in different 
places, the check must, in the absence of spe- 
cial circumstances,-'' be forwarded for present- 
ment on the day after it is received, and the 
agent to whom it is forwarded must, in like 
manner, present it or forward it- on the day 
after he receives it.* 
Explanation. — In computing time non-business 
days must be excluded.^ 

Illustrations. 

1. C, in London, receives a check drawn on a London 
banker on Monday. On Tuesday, instead of presenting it him- 
self he pays it in to his bankers, who present on Wednesday. 
C. has not presented the check within a reasonable time." 

2. C, on Monday, in London, receives a check drawn on a 
Jersey bank. On Tuesday G. pays it in to a London bank. 
The London bank on the same day forward it by post direct to 
the Jersey bank, requesting payment. G. has duly presented 
the check.' 

1 Cf. Arts. 169, 201, excuses for delay, and Firth v. Brooks (1861), 4 L. 
T. N. S. 467. 

^ Alexander \. Burchfield (1842), 7 M. & Gr. 1061 ; Simpson v. Ins. 
Co. (1872). 44 Cai. 139 ; Burkhalter v. Bank (1870), 42 N. Y. 538 ; 
Smith Y. Miller (1870), 43 N. Y. 171 ; Cawein v. Browinski (1869), 6 
Bush. (Ey.) 457 ; Andrews v. Bank (1872), 9 Heisk. (Tenn.) 211. 

3Cf. Arts. 169, 201, excuses for delay, and Firth v. Brooks (1861), 4 L 
T.N. S. 467. 

" Hare v. Henty (1861), 30 L. R. C. P. 302 ; Prideaux v. Criddle 
(1869), 4L. R. Q. B. 455 ; Cf. Griffin v. Kemp (1874), 46 Irid. at 176 ; 
Veazie Bank v. Winn (1855), 40 Me. at 61 ; Woodruff v. Plant (1874), 
41 Conn. 344. 

5 Of. Arts. 20, 195, 196 ; Jones v. Heiliger (1874), 86 Wis. at 153; 34 
and 35 Vict. c. 17. 

^Alexander v. Burchfield (1842), 7 M. & Gr. 1061; CLFaru-ellv. 
Curtis {1S16), 7 Biss. (C. Ct.) 160. 

■•Heyu-ood v. Pickering (1874), 9 L. R. Q. B. 428. 



264: BILLS OF EXCHANGE. [aet. 258. 

ReasonaWe NoTE. — rThe result of the cases seems to be this. A party who 

sentment™ receives a check has a clear day for presenting or forwarding 
it. If, instead of presenting it himself he forwards it to some- 
one else to present, the question is, was he acting reasonably 
in so doing? A principal, of course, is responsible to third par- 
ties for the act of his agents, e.g., if a person forwards a check 
to an agent, and the agent instead of presenting it himself un- 
reasonably forwards it to another agent, the loss as regards 
third parties falls on the principal, though he may have a rem- 
edy over against his agent. The question whether a check has 
been presented within a reasonable time may arise between 
drawer and holder, or between indorser and indorsee, or be- 
tween transferor by delivery and transferee,' or between cus- 
tomer and banker.^ In each case it must be determined as 
between the particular parties. See a different standard of 
reasonable time as between vendor and vendee where the 
vendor of goods was paid by the check of the vendee's agent.' 

Presentment Art, 258, The drawer of a check is not discharged 

and notice to ^ 

charge drawer, jjy ^]jg j^Q2(]gj.'g omissioato prcsetit it for payment 
within a reasonable time as defined by Art. 257, or to 
give due notice of dishonor, unless the drawer has 
suffered actual damage through the delay.* 

Illustkations. 

1, A. draws a check in favor of C. in 1870. It is presented 
for payment in 1873, and dishonored. No reason for the delay 
is shown. A. is not discharged. The holder can sue him.° 

%. A check drawn by A. on a London bank is handed to the 
payee in London on Monday. On Wednesday morning the 
bank on which it is drawn stops payment, A. having at that 

'See, e.g., Moulev. Brown (18S8), 4 Bing. N. C. 266. 

2 See, e g., Hare v. Henty (1861). 30 L. J. C. P. 302. 

'Hopkins v. Ware (1869), 4 L. R. Ex. 268: Cf. Smith v. Miller 
(1870), 43 N. Y. 171. 

"As to presentment, Alexander v. Burchfield (1842), 7 M. & 6r. 1061 ; 
Bobinsonv. HawTcsford (1846), 9 Q. B. 52 ; Laws v. Rand (1857), 27 L. 
J. C. P. 76 ; Bailey v. Bodenham (1864), 33 L. J. C. P. 253 ; Heywood 
V. Pickering (1874), 9 L. R. Q. B. at 432 ; Stewart v. Smith, (1866), 17 0. 
St. 82 ; Allen v. Kramer (1878), 2 Bradw. (111.) 205. As to notice— 
Shaffer v. Maddox (1879), 9 Neb. 205 ; Clark v. Bank a875), 2 MacAr- 
thur (D. C), 24-9 ;. Griffin v. Kemp (1874), 4"- Ind. 172. ' As to burden of 
proving irqw^^-Plamters' Bank v. Merritt (1872), 7 Heisk. (Tenn.) 177. 

^Laws v. Rand (1857), 27 L. J. C. P. 76. 



AET. 259.] PROVISIONS PECULIAR TO CHECKS. 265 

time funds there sufficient to meet it. The check is presented Presentment 

. and notice to 

on Wednesday afternoon. A. is discharged.^ charge drawer. 

Explanation. — Whea a check is not presented 
within a reasonable time of its issue, and the drawer 
sustains actual damage through the delay, it is (prob- 
ably) no excuse that Such delay was caused by the 
bona fide negotiation of the check • through different 
hands.^ 

Note. — In Iiaws v. Hand (1857),' it is suggested that the 
omission to present a check within six years of its issue would 
in any case discharge the drawer. No case against an indorser 
has arisen in England. It is well settled in America that he is 
diseharged by the omission to present within a reasonable time, 
irrespective of actual damage.* 

Art. 259. It is uncertain when a check not known wnen aeemea 

overdue. 

to have been dishonored is to be deemed overdue for 
the purpose of affecting the holder with equities of 
which he had no notice at the time the check was ne- 
gotiated to him.® 

Illusteations. 

1. A. is induced by fraud to draw a check in favor of C. 
Six days after its date 0. indorses the check to D. D. has not 
taken an overdue check, therefore if he gave value and had 
not notice of the fraud he has a good title." 

^Alexander v. BurehfieU, supra; State v. Gates (1877), 67 Mo. 1S9 ; 
Farwell v. Curtis (1876), 7 Biss. (C. Ct.) 160 ; Cf. Kinyon v. Stanton 
(1878), 44 Wis. 479 ; Fegley v. McDonald (1879), 89 Pa. St. 128, dis- 
charge of surety. 

2Cf. Mohawk Bank v. Broderick (1834), 13 "Wend. (N. Y.) 133 ; Dan- 
iel, § 1595 ; see Art. 254, n ; but Cf. Bailey v. Bodenham (1864), 33 L. 
J. C. P. 253, where, however, the point was not argued, and the drawer 
was held to be discharged on another ground. 

3 27 L. J. C. P. 76 ; Cf. Pott v. Clegg (1847), 16 M. & W. 321, for a 
reason. 

Smith V. Janes (1838), 20 Wend. (N. T.) 192 ; Yeasie Bank v. Winn 
(1855), 40 Me. 60. 

'■Serrel v. Ry. Co. (1850), 9 C. B. 811 at 828, 829 ; Cf. Boehm v. Stir- 
ling (1797), 7 T. R. 423 ; Himmelmann v. Hotaling (1870), 40 Cal. 111. 

^Rothschild -v. Carney (1829), 9 B. & C. 388; Cf. Ames v. Merriam 
(1867), 98 Mass. 294 (ten days); Fi/rst Nat. Bank v. Harris (1871), 108 
Mass. 514 (four days); Lester v. Cfiven (1871), 8 Bush (Ky.) 357. 



266 BILLS OF EXCHANGE. [aet, 260. 

When deemed 3. May 1, 1880, C, the payee of a check, transfers it to D., 

overdue. ^j^^ takes fof value and without notice that it was given for an 

illegal consideration. The check was not in fa,ct issued until 

the day of transfer to D., though dated May 1, 18'i'9. D. has not 

taken an overdue check, and is, therefore, not subject to equities.' 

3. A certified check, payable to bearer, is transferred by B. 
to F. six months after the time of. its date. F. has not taken 
an overdue check, andr has, therefore a good title though E. had 
stolen the check from the owner.^ 

4. A " Mem." check was transferred to D. two years and a 
half after its date. D. was held to have taken an overdue 
check.' 

Note. — Of. Arts. 133, 134, as to overdue bills of exchange, 
Art. 383, as to overdue note on demand, and see Art. 138. 

Banker's duty Art. 260. A banker, as such, is bouild to honor his 

checks. customers' checks, when duly presented to the extent 

of the balance which the- customer then has in his 

hands. If the banker make default he is liable to his 

customer in hn action for damages.* 

.^planation 1. — A banker is entitled to have ftinds 
paid in a reasonable time before the customer draws 
against them, in order that he may be aware of the 
state of accounts between them when the cheek is pre- 
sented.* 

Explanation 2. — ^As regards banks having several 
branches, where a customer has an account at one 
branch, the other branches at which he has no ac- 

^ Cowing v. Altman (1877), 71 N. T. 435. 

^ Nolan V. Bank (1873), 67 Barb. N. T. 24. 

' Skillman V. Titus (1866), 32 N. J. L. 96; Cf. Lancaster Bank v. 
Woodward (1852), 18 Pa. St. 857 (year); First Nat. Bank v. Keedham 
(1870), 29 la. 249 (five months). 

^Marzetti v. Williams (1830), 1 B. & Ad. 415; Whitaker v. Bank 
(1835), 1 C. M. & R. 744 ; Grai/ v. Johnston (1868), 3 L. R. H. L. 1, see 
at 14 jer Ld. Westbury ; Cf. Goodwin v. lidbarts (1875), lO L. R. Ex. at 
351, Ex. Ch.; Bichford v. Bank (1866), 42 lU. at 240, 241. As to meaa- 
ure of damages, see Art. 209. 

* Whitaker v. Bank, supra, at 749-750, Parke, B.: Cf. Branshv v. 
Ba»i (1866), 14 L. T. N. S. 403. " 



AET. 261.J PBOriStONS PECULIAR TO CHECKS. 267 

count are not bound to honor Ms checks;^ but where Bag^ert duty 

a customer has accounts at two or more branches the"''®"'^- 

bank is entitled to combine such accounts against 

him.^ 

Note. — The combined accounts must be kept in the same 
right, e.g., a personal and a trust account cannot be combined. 
See the whole status of branch banks in.regard to bills discus- 
sed by the Privy Council.' Duty as to Bills. — The contract 
implied by law between banker and customer may of course 
be modified by special agreement, but apart from this money 
in the hands of a banker is in effect money lent, re-payable on 
demand, which may be either personal or by check.* When a 
customer accepts a bill payable at his bankers, it is an authori- 
ty to the banker to pay it; ° but qu. if the banker is bound to 
do so in the absence of special agreement? ° In the absence of 
special agreement a banker is clearly under uo obligation to 
accept his customer's bills (Art. 308), nor, it seems, is he bound 
to pay a bill, other than a check, drawn on him by a customer 
(Art. 208). In England, a post-dated, check known to be such 
is an ordinary bill of exchange payable after date,' but in Amer- 
ica it is regarded only as a check issued on day of date.' In 
the absence of special agreement, express or implied, founded 
on consideration, a banker is, of course, under no obligation to 
let a customer overdraw.' 

Art. 261. The authority of a banker to pay aDeathorbank- 

j r J ruptcyof 

check drawn on him by a customer is determined by '^™""«'^- 
notice of the customer's death,^'' or bankruptcy.'^^ 

I Woodland v. Fear (1857), 7 E. & B. 519. 

» Garnet v. M'Kewan (1872), 8 L. R. Ex. 10. 

' Prince v. Oriental Bank) 1878), 3 L. R. Ap. Ca. 325. 

*Cf. Pott V. CUgg (1847), 16 M. & W. 321 ; Fol^ v. Hill (1848), 2 H. 
L. Ca. 28 ; Attorney Gen'l v. Ins. Co. (1877), 71 N. T. at 232 ; KnecM 
V. U. S. 8av. Inst. (1876), 2 Mo. Ap. 563. 

^Kymer v. Laurie (1849), 18 L. f. Q. B. 218. 

«Cf. Eoharts v. Tucker (1851), 16 Q. B. at 579. 

''Forster y. Mackreth (1867), 2 L. R. Ex. 163; Of. Emmanuel v. 
Bobarts (1868), 9 B. & S. 121, and Art. 57. But see Gatty v. JF»-«(1877), 
2L. R. Ex.D. 265. 

" Taylor v. Sip (1863), 30 N. J. L. 284 ; Mohawk Bank v. Broderick 
(1834); 13 Wena. (N. Y.), 133. 

' Cumming v. Shand (1832), 29 L. J. Ex. at 132 ; Cf. Lancaster Bank 
v. Woodward (1852), 18 Pa. St. 357. . 

^"Bogerson v. Ladbroke (1822), 1 Bing. N. C. 93 ; Cf. Tate v. Hilbert 
(1793), 2 Ves. Jr. at 118. But see Daniel, § 161» a. 

" Vernon v. Hankey (1787), 2 T. R. 113 ; Expatie Sharp (1844), 3 M. 
D. & D. 490. 



268 BILLS OF EXCHANGE. [aet. 262 

Deatii or bank- NoTE. — The banker's duty to pay is determined by the fact 
drawer."* of death Or bankruptcy, but a payment made in ignorance of 
the fact is valid. 

piaVon™"*™' ^^t- 262, A check given by the drawer in con- 
^'""'^' templation of death must be presented for payment 

by the donee before the drawer's death in order to en- 
title the donee to receive the amount out of the 
drawer's estate as a donatio mortis causa. 
Ilhtsteations. 

1. A. draws a check in favor of C.,and in contemplation of 
death hands it to him as a gift. After A.'s death it is pre- 
sented and payment refused. 0. cannot claim for the amount 
against A.'s estate.' 

2. A., in contemplation of death, draws a check and gives 
it to C. After A.'s death C. presents the check, and the bank- 
ers, in ignorance of A.'s d,eath, pay jt. 0. can (probably) re- 
tain the money against as A.'s representatives.^ 

3. A., in contemplation of death, draws a check and gives 
it to C. Before A.'s death C. presents -it for payment. The 
bankers refuse to pay it, because doubtful of A.'s signature 
A. dies, and payment is subsequently refused on that ground. 
C, the donee, is entitled to receive the amount out of A.'s 
estate.' 

4. A., in contemplation of death, draws a check and gives 
it to 0. Before A.'s death C. negotiates the check for value. 
The holder can claim for the amount against A.'s estate.* 

Note. — Cf. Art. 105. The position of the donee of a check 
is this : he cannot enforce payment against the drawer's estate 
because he is not a holder for value (Art. 91), and the bankers 
authority to pay is revoked by notice of the drawer's death 
(Art. 261). A check given for value, it is conceived, is on the 
same footing as an ordinary bill of exchange. But, assuming 

^Hewitt V. Kaye (1868), 6 L. R. Eq. 198 ; Beak v. BeaTc (1872), 13 L- 
R. Eq. 489 ; Cf. Jones v. Lock (1865), 1 L. E. Ch. 25 ; Harris v. Clark 
(1849), 3N. Y. 93; Second Nat. Bank v. Williams (1865), 13 Mich, at 
291 

^Cf. Tate V. Hilbert (1793), 2 Ves. jr. at 118 ; Burke v. Bishop{1875), 
27 La. An. 465. The bankers are justified in paying, see Art. 261. 

^Bromley v. Brunton (1868), 6 L. R. Eq. 275. 

* Bolls V. Pearce (1877), 5 L. R. Ch. D. 730. 



AET. 264.] PROVISIONS PECULIAR TO CHECKS. 269 

that as between drawer and payee, it is a mere authority to re- Same. 
ceive the amount, still an authority coupled with an interest is 
not revoked by death.' 

Art 264. A check on payment becomes the prop- ^J?J^c^^^£ 
erty of the drawer,^ but the banker who pays it is en- 
titled to keep it as a voucher until his account with 
his customer is settled.* 

Note. — Arts. 365-370 (omitted) embody the statutory pro- 
visions in England as to crossed checks.* As to the origin of 
this practice of crossing checks, and the effect of so doing be. 
fore the statute, see Bellamy v. Majoribanka (1857), 7 Ex 
402, Parke, B. The practice has not been adopted in America. 

• Of. Hatch V. SearUs (1854), 2 Sm. & G. at 151 and 155; see passim, 
SnaAth v. Mingay (1813), 1 M. & S. at 95. 

^Reg V. Watts (1850), 2 Den. C. C. 15. 

' Cf. Charles v. Blackwell .(1817), 2 L. R. C. P. D. at 162 : In re Brown 
(1843), 2 Stoiy.(C. Ct.), at 519. 

* Crossed Checks Act, 1876, 89 & 40 Vict. e. 81. 



CHAPTEE X. 

PROVISIONS PECULIAR TO PROMISSORY NOTES. 

[Explanatory Head-note. — The term " bill " in contradiction to 
"bill of exchange," as used in the articles of this digest, in-' 
eludes mutatis mutandis pj-omissbly note as well as- bul of ex- 
change, the maker of a promissory note come&ponding with the 
acceptor of a bill of exchange. See Introd., p. iv., and head- 
note to Chapter I. In this chapter are collected the provisibns 
which apply exclusively to promissory notes.] 



Note defined. Art. 271. A proHiissory note is an unconditional 
•written promise, signed by the maker, to pay abso- 
lutely and at all events a ^um certain in money, 
eitber to the bearer or to a person therein designated, 
or bis. order .^ 

Note. — See a promissory note compared with a. bill of ex- 
change by Lord Mansfield,^ and Parke, B.,' and cf. Art. ^86 n. 
See also some points of difference between a bank note and an 
ordinary note referred to by Bramwell, B.* Foreign Law. — 
The French law as to notes (billets 4 ordre), is contained in 
French Code de Commerce, Arts. 187, 188. Although the 
Code is silent on the point, it seems that notes payable to 
bearer (billets au porteur), are to some extent recognized, see 
Nouguier, §§ 1565-1578; German Exchange Law, Arts. 96- 
100, deals with notes. 



Necessary par- 
ties. 



Form and Interpretation. 
Art. 272. There must be two parties to a promis- 

1 Coleham v. Coolce (1742), Willes, 393 at 396, 397 ; Cf. i^'sms v. Bond 
(1821), 4 B. & Aid. 679. 

2 HeijUjn V. Adamson (1758), 2 Burr, at 676. 

^Gihb V. Mather (1832), 2 Or. & J. at 262-263, Ex. Ch. 
* Litchfield Union v. Oreene (1857), 1 H. & N. at 889. 

(270) 



AET. a73-74.] PROMISSORY NOTES. 271 

sory note in its origin, and ttey must be different per- ^^^essary par- 
sons, namely: — 

(1.) The person who makes the promise, called the 

maker. 
(2.) The person in whose favor the promise is made, 

• called the payee. Cf. Art. 2. 
Explanation, — A writing in the form' of a note 
payable to maker's order -is not a note, but by in- 
dorsement it becomes one.^ 

iLLtrSTBATIONS. 

1. B. makes a note payable to his own order, and- indorses 
it in blank. This is a valid note payable to bearer.^ 

3. B. makes a note payable to his own order, and indorses 
it to C. This is a valid note payable to 0. or order.' 

3. B., C. and X. make a joint and several note payable to 
C, and X. or order. This is a valid note. C. and X. may sue 
B. on his several liability.* 

4. B. & Co. make a note payable to C. & Co. or order. X. 
is a partner in both firms. C. & Co. cannot sue B. & Co. on 
this note. But if C. & Co. indorse the note, the indorsee could 
sue.^ 

Art. 273. A promissory note is inchoate and in-Deiiraryneces- 

t , sary. 

complete until delivery thereof be made to tbe payee.® 

Art, 274. A promissory note may be in any form Note may be 

^ ^ ^ ^ in any form of 

of words whicb comply witii tbe requisitions of Art. 



1 any i 
words. 



1 Hoover V. Williams (1848), 2 Exch. 13 ; Miller v. Weeks (1853), 22 
Pa. St. 89 ; Cf. Smaller/ v. Wight (1857), 44 Me. 442 ; Lea v. Bank 
(1838), 8 Port. (Ala.) at 124. 

2 Id. Masters v. Baretto (1849). 8 C. B. 433. 

= Gatj V. Lander (1848), 17 L. J. C. P. 286 ; Hall v. Burton (1862), 29 
ni. 821. 

* Beecham v. Smith (1858), E. B. & E. 442. Aliter, if a joint note, un- 
til indorsed, Pitcher v. Barrows (1835), 17 Pick. (Mass.) 361. 

'Murdock v. Caruthers (1852), 21 Ala. 785; Ueywood v. Winaate 
(1843),. 14 N. H. 73 ; Cf. Neale v. Twrton (1827), 4 Bing. 149 ; Hapqood 
V. Watson (1875), 65 Me. 510 ; Walker v. Wait (1878), 50 Vt. 668: 

« Chapman v. Cottrell (1865), 3 H. & C. 857 ; Cf. Arts. 53-55, as to de- 
. livery. 



272 BILLS 'of exchange. [aet. 274 

in°sf vformof ^71,^ and from which, the intention to make a note 



^"^- appearg.2 



Illusteatiojts. 



1. « Due C. $100, value received ; " i' I. O. U. $100 ;" » " I 
acknowledge the within note to be just and due," written on 
the back of a note.* These are not notes, but are mere evi- 
dence of indebtedness. 

2. "I. O. U. $100 to be paid May 5th ;"^ « Due C. or or- 
der $100 on demand," ° These are notes, since they import a 
promise to pay. 

3. A certificate of deposit is a note, if it contains a promise 
to pay, e.g., "C. has deposited in the X. Bank $100, payable to 
himself on return of this certificate." ' 

4. The following is not a note : " Borrowed of C. $100 to 

account for on behalf of the X. Club at months' notice, if 

required." (Signed) T. B.« 

Note. — For further illustrations, see Arts. 2, 8, 9, 10, 12, 13, 
14, 19, 20, 23j 58. The promise of the maker in a note corres- 
ponds with the order to the drawee in a bill of exchange ac- 
cepted generally. It may be regarded as the same contract 
stated conversely, and the same considerations apply to both, 

> Hooper v. Williams (1848), 2 Exch. at 20 ; Almy v. Winslow (1879), 
126 Mass. 342 ; Daggett v. Daggett (1878), 124 Mass. 149 : Woodward 
V. Genet (1858), 2 Hilt. (N. Y.) 526. 

'Sibree v. Tnpp (1846), 15 M. & W. at 29 : Cf. Jackson v. Slipper 
(1869), 19 L. T. N. S. 640. 

' Currier v. Lochwood (1873), 40 Conn. 349 ; Evans v. PUlpotts (1840), 

9 C. & P. 270. Contra, Russell v. Whipple (1824), 2 Cow. (N.-T.) 536 ; 
Luqueer v. Prosser (1841), 1 Hill (N. T.), 256 ; Bradu v. Chandler 
(1860), 31 Mo. 28 ; Bacon v. Bicknell (1863), 17 Wis. 523 ; Jacquin v. 
Warren (1866), 40 111. 459, but Cf. Bmvles v. LamVert (1870), 54 111. 237. 

*Gray v. Bowden (1839), 23 Pick. (Mass.) 282 ; Cf. Daggett y. Daggett, 
supra. 

6 Waithman v. Elsee (1843), 1 C. & K. 35 : Cf. Brooks v. Elkins 
(1836), 2 M. & W. 74. 

^Carver T.Hayes (1859), 47 Me. 257 : Kimball v. Huntington (1833), 

10 Wend. (N. T.) 675 ; Cf. Smith v. Allen (1812), 5 Day (Conn.), 337 ; 
Hussey v. Winslow (1874), 59 Me. 170 (good to bearer). Contra, Brown 
v. Gilman (1816), 13 Mass. 158. 

"•Klauber v. Biggerstaff {181% 47 Wis. 551 ; Caie v. Patterson (1872), 
25 Mich. 191 ; Hunt v. Divine (1865), 37 lU. 137 ; Pardee v. Fish (1875 , 
60 N. Y. 265 ; Drake v. Markle (1863), 21 Ind. 433 ; Cf. Brummagin v. 
Tallant (1866), 29 Cal. 503 ; Hart v. Life Assn. (1875), 54 Ala. 495. 
Contra, Patterson v. Poindexter (1843), 6 W. & S. 227 ; Cf. Sibree y. 
Tripp, supra. 

' White v. North (1849), 3 Exch. 689. 



AET. 275.] PBOMISSOBT NOTES. 273 

see Art. 10. An instrument invalid as a negotiable promissory g'*^?fy,^%f 
note may of course be effectual as an agreement/ or an I. 0. words. 
U. Subjoined is an ordinary form of note. 

§100. 1, Clark Street, Chicago, 

January 1, 1870. 
On demand, I promise to pay to James Charles, or order, one 
hundred dollars, for value received. 

JoHK Beown. 

Art. 275. There may be two or more makers to a Jo^t^andsev- 
promissory note, and they may be liable thereon 
jointly, or jointly and severally, according to its 



tenor.^ 



Illusteatiosts. 



1. A note in the form " I promise," signed by several per- 
sons who are not partners, is their joint and several note.' 

2. A note in the form " We promise," signed by several per- 
sons, is their joint note only.' 

3. B., X. and Y. are partners. B. makes a note in the form 
"I promise," signing "for X. and Y." T. B. This is the joint 
note of the firm, and not a several note by B.* 

Explanation 1. — A partner as such cannot bind 
his co-partners severally, but by a joint and several 
note he may bind the firm jointly ® and himself 
severally.'' 

Explanation 2. — A maker cannot be added to a 
joint and several note after it has been issued.^ 

Note. — See further Arts. 334 and 345. A bill of exchange 

'Of. White y. North (1849), 3 Ex. Ch. 689. 

2Cf. Ex parte Honey (1871), 7 L. R. Ch. 178. 

'Monson v. Drakeley (1873), 40 Conn. 552 ; Wallace v. Jewell (1871), 
21 0. St. 163 ; Hemmenway v. Stone (1810), 7 Mass. 58 ; Maiden v. 
Webster (1868), 30 Ind. 317 ; Of. Eidd v. Moggridge (1857), 2 H. & N. 
668, dub, Pollock, C. B. 

* Burnett v. Juday (1871), 38 Ind. 86 ; Bules, 12th ed. p. 7 : Parsons 
V. 1. p. 247. ^ 

' Ex parte Buckley (1845), 14 M. & W. 469. 

^Maclae v. Sutherland (1854), 3 E. & B. 1. 

''PenMvil v. Connell (1850), 5 Exch. 381. 

"Gardner v. Walsh (1855), 5 E. & B. 83 ; see Art. 247. 

18 



274 



BILLS OF EXCHANGE. [akt. 276-78" 



Joint and sev- 
eral note 



Note contain- 
ing pledge of 
Becurity. 



Note In alter 
native. 



Note under 



differs from a note in this. If there be two or more acceptors 
they can only be liable jointly, not jointly and severally.' 

Art. 276. A promissory note may contain a pledge 
of collateral secufity with authority to sell or dispose 
thereof.^ 

Note. — The right to the security passes with the instrument,! 
and the person who holds the note free from equities, holds the 
security in like manner.' In France the security follows the 
instrument, Nougui&r^ § 715. The Belgian Commercial Code, 
§ 26, expressly enacts the same as to bills. 

Art. 277. A promissory note may give the holder 
the option between the payment of the sum specified 
and the performance of another act by the maker. As 
to the latter it is not a note.* 

Illustration. 

" I promise to pay C. $100 at my store May 1, 1880 (or in 
goods on demand), value received." This is a valid note.' 

Note. — ^As the payee can demand money, and no option 
is given to the debtor, it is said there is no uncertainty in 
the instrument. The promise to pay money is absolute. The 
question has not been raised in England. See Art. 10. 



Art. 278. 
under seal.® 



A. promissory note cannot be issued 



Note. — If sealed, though made by a corporation, the in- 

• Jackson v. Hudson (1810), 2 Camp. 447. 

2 Wise V. Charlton (1836), 4 A. & E. 786 ; Towney. Bice (1877), 122 
Mass. 67 ; Knipper v. Chase (1858), 7 la. 145 : Cf. Perry v. Bigelaw 
(1880), 128 Mass. 129. 

' Duncan v. Louisvdle (1877), 13 Bush (Ky.), 378 ; Kelleij v. Whitney 
fl878), 45 Wis. 110 ; Holmes v. McOinty (1870), 44 Miss. 94. Contra 
(subject to equities), Chicago Ry. Co. r. Lowenthal (1879), 93 111. 438 ; 
Johnson v. Carpenter (1862), 7 Minn. 176. 

* Dinsmore v. Duncan (1874), 57 N. Y. 573 ; Cf. Vermilye v. Adams 
Ex. Co. (1874), 21 Wall. (TJ. S. at 144 ; New York Draft Code, § 1716. 

" Hosstatter v. Wilson (1862), 36 Barb. (N. Y.) 307 : Cf. Hodges v. 
Shuler (1860), 22 N. Y. 114 ; Art. 10, Expl. 3. 

« Merritt v. Cole (1876), 9 Hun (N. Y.), 98 : Lewis v. Wilson (1840), 
5 Blackf. (Ind.). 870 ; Hopkins v. R. R. Co. (1842), 3 W. & S. (Pa.) 410 ; 
Cf. Lyman v. Calif er (1870), 64 N. C. 572. But d. Banks v. R. R. Co. 
(1873), 5 S. C. 156 j Bank v. Smith (1881), 5 0. 222. 



AKT. 281-82.] PROMISSORY NOTES. 276 

strument becomes a specialty," and as such it may be negotia- Note under 
ble if issued by the government.' In the absence of statute it ^®^" 
is not negotiable as a note. It has, however, been held that 
the negotiability of a note is not destroyed by the indorsement 
of a corporation through its seal.' But in England, it seems 
that a note made by a corporation may be issued under seal 
without signature,* and that such an instrument may be nego- 
tiable for the purpose of passing with a good title to a bond 
fide purchaser for value.' Whether it is to be regarded as a 
note for all purposes is not clear. If signed by the directors 
of a company in a manner binding the directors personally, 
the addition of the company's seal does not make it binding 
on the company.' 

Transfer. 

Art. 281. Promissory notes are by statute negoti- s^tory nego- 
able " in the same manner as inland billsof excliange 
are or may be by the custom of merchants."' 

Note. — This statute, it seems, is merely declaratory,' there- 
fore, the provisions of Chapter III apply. in their entirety to notes. 
It has been substantially re-enacted in the American States, 
though the negotiability of notes independent of this statute, 
has been maintained by many courts. 

Art. 282. A promissory note payable on demand, ^"^^ "^1^ 
and not known to have been dishonored, is to be"''®'^^^ 
deemed overdue after the lapse of a reasonable time 
from its issue.^ Cf. Art. 285. 

Explanation. — Reasonable time is a question of law.^" 

' Steele v. Oswego Co. (1836), 15 Wend. (N. T.) 265. See Art. 50, n. 

2 White V. R. S. Co. (1858), 21 How. (U. S.) 575 ; Goodwin v. Rdbarts 
(1875), 10 L. R. Ex. 337 ; Cf. Dinsmore v. Duncan (1874), 57 N.T. 673. 

' Rand v. Dovei/ (1877), 83 Pa. St. 280. 

" Crouch V. Credit Fonder (1873), 8 L. R. Q. B. at 382, 383. 

^ Ex parte Colborne (1870), 11 L. R. Eq. 478 ; Rumball v. Bank (1877), 
2 L. R. Q. B. D. 194. 

"DuttonY. Marsh (1871), 6 L. R. Q. B. 361. 

'3&4Anne, c. 9, § 1. 

8 Goodwin v. Rnbarts (1875), 10 L. R. Ex. at 350. 

^Ranger v. Gary (1840), 1 Met. (Mass.) 369 ; Poorman v. Mills (1870), 
39 Cal. 345 ; Carll v. Brown (1852), 2 Mich. 401. . 

"° Poorman v. Mills, supra; Carlton v. Bailey (1853), 7 Fost. (N. H.) 
230 ; Parker v. Tuttle (1858), 44 Me. 459. Contra (fact), Tomlinson v. 
Kinsella (1863), 31 Conn. 268 ; Cf. Barbour v. Fullerton (1859), 36 Pa. 
St. 105. 



276 BILLS OF EXCHANGE. [ABT. 285, 

Note on de- NoTE, — What is, a reasonable time depends entirely on the 

OTMdue^^^'' circumstances of the case, and the intention and understand- 
ing of the parties. Hence one case is no precedent for another. 
Five months was held a i'easonable time in one case,' while 
two and a half months was declared unreasonable in another.'' 
This uncertainty has been remedied in several States by stat- 
tutes fixing the period within which the note shall not be 
deemed overdue. In some cases, the fact that the note was 
payable with interest was regarded as material in determining 
the question.' But in England the courts consider a note 
payable on demand with or without interest as a continuing 
security, immediate payment not being contemplated by the 
parties, and it was accordingly held that a note indorsed four- 
teen years after its date was not indorsed overdue, and was 
Presentment of taken by the indorsee free from equities between the maker 
mand."'^®' ^^^ payee.* See further Arts. 133, 134, 138, 359. 

h^der.°^ Art. 285. A promissory note payable oa demand 

must (probably) be presented for payment within a 
reasonable time in order to charge the indorsers.^ 

Explanation. — ^Reasonable time is a question of 
law.® In determining what is a reasonable time re- 
gard must be had to tbe nature of the instrument as 
a continuing security.'' 

Illttstkation. 
A note payable on demand is indorsed by C. to D. Ten 

^Sanford v. MicUes (1809), 4 Johns. (N. T.) 224; Cf. Deemen v. Has- 
kell (1858), 45 Me. 430. 

^Losee v. Dunhin (1810), 7 Johns. (N. T.) 70; Cf. Herricky. Woolver- 
ton (1870), 41 N. Y. 581; Nevins v. Townsend (1825), 6 Conn. 5; Moreij 
v. Wakefield (1868), 41 Tt. 24. 

3 Wethey v. Andrews (1842), 8 Hill (N. T.), 582; Cf. Townsend v. 
Kinsella (1863), 31 Conn. 268. 

'-Brooks V. Mitchell (1841), 9 M. & "W. 15; Cf. Cripps v. Davis (1843), 
12 M. & W. at 165, Parke, B. See Tomlinson v. Kinsella, supra, ap- 
proving this case. 

^ Sice y. Cunningham {182S). I Cow. (N. Y.) S97; Kei/esy. Eenster- 
maker (1864), 24 Cal. 329; Seaver v. Lincoln (1838), 21 Pick. (Mass.) 
267; Chartered Bank v. Dickson (1871), 3 L. R. P. C. 574 at 579. But 
cf. Merritt v. Todd (1861), 28 N. Y. 28, approved Pardee v. Fish (1875), 
60 K. Y. 265 at 270, 271. 

m.; Cf. Alexander v. Parsons (1870), 3 Lans. (N. Y.) 333. But cf. 
Chartered Bank v. Dickson, supra, at 584; Wyman v. Adams (1853), 
12 Cush. (Mass.) 210; Arts. 150, 195, 282. 

' Chartered Bank v. Dickson, supra, at 579-580; Cf. Serrell v. By. 
Co. (1850), 9 C. B. at 829; Lockwood v. Crawford (1847), 18 Conn. 861; 
Rhodes v. Seymour (1869), 36 Coim. at 6. 



ART. 286-8T.] PROMISSORY NOTES. 2T7 

months afterwards it is presented for payment and dishonored. Same. 
This may be a reasonalDle time.' 



Liabilities of Maker. 

Art. 286. The maker of a promissory note is the Rater's con- 

principal debtor on the instrument.^ He engages that 

he will pay it at maturity according to its tenor. 

Note. — The maker is sometimes incorrectly called the 
drawer, but the primary and absolute liability of the maker of 
a note must be distinguished from the secondary and con- 
ditional liability of the drawer of a bill of exchange.' In gen- 
eral the maker of a note corresponds with the acceptor of a bill 
of exchange, and the same rules apply to both. A note in- 
dorsed by the payee resembles an accepted bill payable to 
drawer's order arid indorsed by the drawer, the payee corres- 
ponding with the drawer.* The distinctions that exist be- 
tween maker and acceptor arise from this. The acceptor is 
not the creator of a bill, his contract is supplementary, while 
the maker of a note originates the instrument. Hence (a) a 
note cannot be made conditionally,^ while a bill may be ac- 
cepted conditionally (Art. 39) ; (J) maker and payee are imme- 
diate parties in direct relation with each other, while acceptor 
and payee, except in the case of a bill payable to drawer's 
order, are remote parties." See, also, the notes to Arts. 10, 
20, 37. 

Art. 287. The maker of a note payable to order ^^^^''^ ^s*°p- 
by the fact of making it conclusively admits and war- 
rants to a bona fide holder the existence of the payee 
and his then capacity to indorse.'' 

Note. — It was held in a Massachusetts case that the maker 
was not estopped from setting up the insanity of the, payee at 
the time of the execution of the note.' 

1 ChaHered Bank v. Dickson, (1871), 3 L. R. P. C. 574. 

"Of. Id. at 580, and Art. 272. 

s Story, Notes, § 4; Gwitmel v. Herbert (1886), 6 Nbt. and Man. 728. 

*Id.; Heylyn v. Adamson (1758), 2 Burr, at 678, Ld. Mansfield. 

^ Arts 271 and 10. 

« Of. Bishop V. Young (1800), 2 B. & P. at 83, Ld. Eldon. 

' Drayton v. Dale (1823), 2 B & C. 293; Lane v. Krehle (1867), 22 la 
399; Nightingale v. Withington (1818), 15 Mass. 272; Burher. Allen 
(1854). 9 Post. (N. H.) 106; JEsley v. People (1880), 23 Kana. 510; Cf. 
Arts. 189, 212, 216. 

^Peaslee v. Robbing (1841), 3 Met. 164. 



INDEX. 



Acceptance, 
defined, 42 

delivery or notification to complete, 42, 58. See Delivery, 
what it admits, 
Form of : 

in writing on bill or on separate paper. 42 

place on bUl, 43 

by promise to paj/ the bill; 43 

oral or implied from acts of drawee, 43 

by detention, or part payment, 44 

to whom must be addressed, 44 

by written or verbal promise to accept, 44 

promise to accept and promise to pay, distinguished, 46 

need not be dated, 46 

must be to pay money, 47 

when laws conflict, 68-70 

where bfll drawn in a set, 40 
Time of : 

before biU complete in point, of form, 35-38, 46 

after maturity, 46 

after dishonor, 46 

presumption as to time when undated, 47 
By whom : 

in general by drawee, 48 

by person other than drawee, 48 

by one of several drawees, 48, 52. See Qualified Acceptance. 

by drawee in fictitious name, 49 

by fictitious person. See Fictitious Parties. 

capacity to accept in general, 71 

by person non compos mentis, 72 

by infant, 72 

by married woman, 73 

by company or corporation, 49, 57 

authority to accept' in general, 76-82 

by partner, 85-87. See Partner. 
(279) 



280 INDEX. 

Acceptance — continued. 
By whom: 

by agent, 80-85. See Principal and Agent. 
forged or unauthorized, 88-91 
construed with address to drawee, 49 
blank signature filled up as, 35 
material alteration in, 249 
cross-acceptance as consideration, 92 
of check, 262 

presentment for. See Presentment for Acceptance. 
obligation to accept, 207 
General or qualified : 

what general, 50 

what qualified, 50 

as to amount, place of payment or time, 51 

by acceptance of part of drawees, 52 

effect of qualified, 52 

holder's option to take qualified, 157 

holder's duty after taking qualified, 157, 171 
See Acceptor — Drawee — Signature. 

Acceptance foe Honob Supka Protest, 
what bills may be so accepted, 53 
who may accept, 53 

for whose honor, bill may be accepted 53 
presumption when party not named, 55 
holder's option to refuse, 53 
time for, 54 

mode of accepting, 54, 55 
form, 54 

for part of amount of bill, 55 
effect on holder's right of action, 55 
Acceptor supra protest : 

contract with holder, 224 

estoppels which bind, 225 

presentment for payment to, 178 

rights and duties on payment, 243 

A.COEPTOB, 

letter B, used to denote in illustrations, Introd. p. iv. 

defined, 2 

accommodation acceptor, 102, 225, 246. ^f^s Accommodation Party. 

who liable as, 48 

bankruptcy of. See Bankruptcy. 

death of. See Death. 

contract with holder, 210 

liability contrasted with drawer's, 210 



INDEX, 281 

AncEPTon — continued. 

compared with maker of note, 273, 274, 277 

relations inter se oi joint, 210 

estoppels, which bind, 210-212 

when suit may be begun against, 31 

measure of damages against, 212-214 

damages when laws ■coniliot, 214 

payment by, as a discharge, 230 

efifect when he iaholdeB of bill at maturity, 239 

giving time to or compounding with, 244r-246 

presentment for payment to Charge, 170. See Presentment for Pay 

ment. 
notice of dishonor to, 203. See Notice of Dishonor, 
Staiute of Limitations, as to, 256 
How Liability of Acceptor negatived .• 

conditional acceptance and condition tinperformed, 171 

effect of accepting payable at particular place, 170, 171 

intention to sign a different document, 57-58 

forgery, etc., 88-91, 210 

alteration, 250, 251 

want of capacity, 71-76 

want of consideration, fraud, illegality, 101, 104-111 

property in bill not transferred to holder, 61-63 

jus tertii, 62, 102 

discharge of bill or discharge inter partes-, 221-ihh 

Accommodation Bill, 
defined, 102, 103 

value subsequently given for, 93, 94 
. pledge of, 105 

when deemed to be issued, 247 
presumption as to bill being, 102, 109, 195 
bankruptcy of drawer, when aoeptor has security, 225 
cost of defending action on, 226 
negotiation after maturity, 139 
presentment for payment, when excused, 167 
notice of dishonor, when excused, 195 
payment by acceptor or maker as discharge, 230 
payment by person accommodated as discharge, 231 
discharge of surety by dealing with principal, 245, 246 
foreign discharge of, 229 
Statute of Limitations, 257, 258 
Accommodation party : 

defined, 103 

liabihfy to holder for value, 104, 110 

special defenses available to, 103, 104, 245, 248 

liability to person accommodated, 104 



282 INDEX. 

Accommodation Bill — continued. 
Accommodation party: 

substantially a surety, 103, 226, 246 
rights on becoming a party, 225, 226 
voluntary payment by, 226 

A CKNOWLEDGMENT, 

to defeat Statute of Limitations, 260 

Act of Honob, 

on acceptance supra protest, 54, 55 
on payment supra protest, 242 

Action, 

de facto holder may bring, 144 
.in whose name when bill payable specially, 145 
in whose name when biU payable to bearer, 146 
defenses against holder suing as agent or trustee, 145 
defenses available to accommodation party, 103, 104 
on lost bill, 147, 148 

when husband and wife must join in, 113 
costs of defendiug an accommodation bfll, 226 
proceeding for costs against party sued concurrently, 230 
transfer of bill after action brought, 141 
Statute of Limitations, 256-260. See Limitations. 
Right of : 

on, and collateral to, instrument, distinguished, 227 
when complete against drawer or indorser, 258 

mater or acceptor, 31 
on bill, and on consideration, distinguished, 252, 253 
giving bin suspends, 254 
effect of renewing bill, 253, 254 
effect of acceptance supra protest on, 55 

Addkbss, 

sufficiency of when notice of dishonor sent by post, 184 

of drawer or indorser of dishonored bill not known, 198, 202 

to drawee in biU, 9-15, 49 

Administbatok, 

when bill held by deceased vests in, 113 

personal liability on bill signed as, 83 

bUl of deceased delivered by, 61 

effect when acceptor becomes the holder's, 239 

effect when holder becomes the acceptor's, 239 

Statute of Limitations, as to, 259 

AbVTCT! (Letter of), 208 

See Death — Donatio mortis causd-r-Executor. 

Agent, see Principal and Agent. 



INDEX. 283 

Allonge, 122 

Alteration, 

before or after issue, 247, 251 

what material, 248, 249 

what immaterial, 249, 250 

effect of material, on bill, 250, 251 

effect of immaterial, on bill, 260 

by stranger to bill, 251 

altered bill restored to original form, 251 

to correct mistake, 252 

effect on right to sue for consideration, 252, 253 

onus probandi as to, 253 

rights of honafide holder of altered bill, 223, 251 

negligence of maker, what effect, 251 

acceptance after, in ignorance of, 211 

payment in ignorance of, 235-238 

distinguished from fraudulent filling of blanks, 35, 37 

Altbknative, 
drawee, 5 
payee, 7 

place of payment, 34 
mode of payment, 274 

American Law, 

articles and explanations are statements of. Editor's Preface. 
weight of, and reference to, Introd., pp. vi, vii 

Anomalous Indorsement, 120, 216 

Antecedent Debt, 

as consideration for bill, 93, 97 

holder of bill as collateral security for, 97 

paid by bill which is dishonored, 222, 255 

Ante-dated Bill, 23, 24 

Assignee in Bankruptcy, 
notice of dishonor to, 190 

Assignment, 

transfer by, 114 

distinguished from negotiation, 117 

See Equitable Assignment — Transfer. 

Attorney's Fees, 

effect of agreement for payment of, in bill, 17 

Authority, 

distinguished from capacity, 71 
general rule as to, 76 



284 INDEX, 

kuTSOBiTT—contumed. 

to sign bills, may be verbal or written, 80 

to sign bills, how construed, 80, 81 

to draw, no authority to indorse, 80 

to draw check, no authority to draw bill, 81 

to accept, no authority to accept for accommodation, 81 

to fill up blanksi 35-38 

of partner in trading' firm, 85, 86 

of partner in non-trading firm, 86, 87. 

of agent. See Prineipal and Agent. 

when revoked by death, 38, 267. 268 

Aval, 120 

Bank and Bankek, 

effect given to usage among, 66 

"■'marginal notes" of, 95 

lien on customer's bills, 98 

completion of payment by, 230 

elearing-house recognized at law, 162, 163 

right to retain i)aid check against customer, 269 

obligation to honor customer's checks, 266 

obligation to. honor bills, 267 

custom as to post-dated checks, 66 

no obligation to let customer overdraw, 267 

effect of customer's death or bankruptcy, 267 

no "obligation to holder of check, 209 

liability to holder of certified check, 262 

paying forged check or bill, 89, 235 

paying check held under forged indorsement, 234 

paying- altered check, 235, 238 

as to crossed checks, 269 

duty as collecting agents, 149, 150, 161, 264 



Branch Banks, 

general status as to bills, 266 

notice of dishonor sent through, 188 

right to combine accounts against customer, 266, 267 

duty to pay checks drawn on another branch, 266 

Bill Accepted Payable- at Bank: 
duty to, customer to pay, 266 
no duty to holder, 209 
a general acceptance, 51 
presentment for payment of, 162-164 
payment when indorsement forged, 89 
changing banker's, name a material alteration, 249 



INDEX. 285 

Bank Note, 

distingnislied from ordinary note, 222, 270 
bill payable in, pa-haps valid, 13, 14 
, payment of debt in, 222 

B.ANKEUPTCY, 

holder's right of proof, 38, 210, 233 
creditor holding security, 225 
of acceptor before maturity, 53 
effect of foreign discharge, 228 
Of Drawee or Acceptor: 

presentment for acceptance after, 155 

presentment for payment after, 168 

notice of dishonor to drawer or indorser after, 199 

protest for better security, 177 

effect of taking composition from acceptor, 22?, 245 

effect of part payment by drawer or indorser, 233 

of drawee as breach of contract with drawer, 207, 208- 
Of Drawer or Indorser: 

to whom notice of dishonor to be given, 190, 199 

of drawer as revoking drawee's authority to accept, 207 

of drawer of accommodation bill, 225 

of drawer of check, 267, 268 
Bbaebr, 

included in term " holder," 3 
Bill payable to : 

whether bill is, when payee fictitious, 8, 212, n. 

bill indorsed in blank is, 118 

negotiated by delivery, 119 

effect of indorsing, 119, 124 

who may sue on, 146, 147 

Bblgian Code db Commerce, Introd. p. vii, 19, 207, 274 
Bbsoin, 5. See Case of Need. 

Better Sbcdritt, 
protest for, 155 
BiLT,, , ' 

term as used in Digest, Introd., p, iv., 1, 270 

BiiJi OP Exchange, 
definition, 1 

compared with check, 261 
compared with promissory note, 270, 277 
when to be treated as a note, 3, 67 
' origin and history, Introd., p. ix. 
sources of foreign law, as to, Introd., p, ix. 



286 INDEX. 

Bill of Exchange — contwned. 

different theories in England and France, Introd., p. xi. 
conflict of laws as to. See Conflict of Laws. 
Form and Interpretation, 1-70 

parties, 2-8 

order to drawep, 9-15 

sum payable, 15-20 

expression of consideration, 20-22 

date of making, 22-25 

time of payment, 25-33 

place of making and payment, 34 

inchoate bills, 35-38 

inland and foreign, 38, 89 

drawn in a set, 39-42 

acceptance, 42-52 

acceptance, supra protest, 53-55 

signatures, 56-58 

delivery, 58-63 

construction, 63-67 
Capacity of Parties, 71-76. See Capacity. 

Authority of Parties, 76-88. See Partner — Principal and Agent 
Forgery, 88-91. See Forgery. 
Consideration for, 92-111. See Consideration. 
Transfer, 112-144. See Transfer. 
Actions on and Proof, 144-148. See Action — Proof. 
Duties of Holder, 149-206 

presentment for acceptance, 149-157 

as to qualified acceptances, 157 

presentment for payment, 157-173 

noting afid protest, 173-177 

presentment to case of need, 177, 178 

presentment to acceptor, supra protest, 178 

notice of dishonor, 179-205 

on receiving payment, 206 
Contracts arising out of, 207-226 

drawee and drawer, 207, 208 

drawee and holder, 209, 210 

acceptor and holder, 210-214 

drawer or indorser and holder, 214-221 

transferor by delivery and transferee, 221-224 

acceptor supra protest, and holder, 224, 225 

accommodated party and person accommodated, 225, 226 
Discharges, 227-255. See Discharges. 
Limitation of Actions, 256-260. See Limitations. 

BlLL^ NUNDINALBS, 27 



INDEX. 287 



Blank, 

blank signatures, 35, 215, 216 
authority to fiU up in bill, 85 
effect if not fiUed up, 8, 15, 38 
fraudulently filled up, 35, 37, 286 
Indorsement in Blank: 

definition, 123 

effect, 128, 124 

conversion into special, 124 

followed by special, 124, 125 

action on biU so indorsed, 146, 147 

Bona Fides, 

honafide holder, 98, 99 

test of, in holder, 100 

presumption of, in holder, 109-111 

test of, in payor, 235 

of person without title receiving payment, 236, 237 

Branch Banks, 188, 267. See Banh. 

Bkokeb {JAen o/),.98 



Cancellation, 

of bill or signature by holder, 241 

by mistake, 241 

of bill by order of court, 91, 108 

of acceptance by drawee, 60 

of indorsement by indorser, 59, 60 

Capacity, 

distinguished from authority, 71, 212 

to incur liability, 71 

to transfer, 71, 73, 74, 76 

general rule, 71 

person non compos mentis, 72 

alien enemies, 72 

mfant's liability on hiU, 72 

power to transfer bill, 73 
married woman's liability, 73 

power to transfer, 74 
company or corporation's UabiUty, 74-76 

power to transfer, 76 
trading and non-trading companies, 75, 76 

Case op Need, 

meaning of term, 5 
designated by indorser, 127 



288 INDEX. 

Casbt'of Need — continued. 

accepting without protest, 48 
duty of holder to present to, 177 

Cases, 

list of overruled or doubted, p. — 

Cbetainty (Requisite in Bill or Note). 
fact of payment, 9 
time of payment, 26-29 
designation of drawee, 4, 5 

of payee or indorsee, 7, 134 
sum payable, 16-18 

Cbktifioatb of Deposit, 

whether a promissory note, 272 

Certified Check, 262 J 

Check, 

defined, 261 

provisions as to bills how far applicable to, 261 

distinguished from ordinary bill of exchange, 261, 2G2 

note payable on demand, 262 
not intended for acceptance, 262 
effect of certifying check, 262 
crossed checks, 269 

time for presenting in general, 263-264 
to charge drawer, 264 
to charge indorser, 265 
when deemed overdue or stale, 265 
banker's duty to customer to honor check, 266 
effect of drawer's death or bankruptcy, 267 
donatio mortis causd, 268 
property in paid check, 269 
construction of authority to draw, 81, 87 
liability of non-trading corporation on, 76 
French law, 262. 
Ante or Post dated: 

validity, 23, 24 

operation of, 23, 266 

authority to draw construed, 81 

authority to partner to draw, 87 

maturity calculated from date, 24 

custom of London bankers not to pay, 66 
■ See Banker — Bill of Exchange. 

Chose in Action, 

bill assigned as, 114, 117. See Transfer. 



INDEX. 289 



Cheistmas Day, 

bill falling due on, 33. See Dies Non. 

CLBABiNe House, 

presentment of bill through, 162, 163 

COEKCION, 108 

CoiNCtDBNCB OF RiGHT AND LlABILlTT, 239 

CoLLATEHAIi SbCUBITT, 

evidence to show bill given as, 62 
amount of recovery by holder of bill as, 96 
holder when a holder for value, 97, 98 
note containing pledge of, 274 

Collection {Indorsement for), 

in express terms, 129. See Eestrictwe Indorsement. 

revocation by indoraer, 125 

misappropriation by indorsee, 62, 96, 110, 142. 

rights of indorsee, 142, 145 

duties of collecting agents, 161, 264 

compensatio, 228 

Composition, 

effect of taking from acceptor, 228, 245 

COMPKOMISB OF ClAIM, 

as consideration for bill, 92 
Computation, 

time of payment, 24, 25-33 

sum payable, 18-20 

damages on dishonor. See Damages. 

Conditional, 

bUl or note, 9, 10, 64, 65, 270 

acceptance, 50. See Qualified Acceptance. 

indorsement, 10, 127, 128 

payment, 255 

delivery of biU absolute in form, 61-63 

Conflict of Lavp-s, 

requisites in form, 68, 69 

interpretation, 69, 70 

ex post facto legislation, 19 

duty to present to case of need, 178 

effect of dishonor by non-acceptance, 156, 221 

depreciated currency in place of payment, 19 

computation of time of payment, S3, 70 

notice of dishonor, 203 

protest, 175 , 



290 INDEX. 

Conflict op Laws, continued. 
foreign discharge, 228, 259 
damages against acceptor, 214 

drawer or indorser, 221 
Statutes of Limitation, 259 

CONFTJSIO, 240 
CoNSIDEBATIOIf, 

what constitutes, 92, 96 

adequacy of, 93 

by whom furnished and when, 93-95 

for original bill in case of renewal, 254 

absolute payment of pre-existing debt, 93 

conditional payment of pre-existing debt, 93, 97 

collateral security for pre-existing debt, 97, 98 

pro tanto in case of pledge or lien, 96 

want of, creating privity between remote parties, 102 

presumption of, 102, 109, 110 

what evidence shifts onus probandi as to, 110, 111 

holder for value, 93, 94 

bona fide holder for value without notice, 98 

holder claiming under bona fide holder, 100, 101 

Defenses arising out of: 

when it maybe inquired into, 101 

absence of, 104 

partial absence of, 104, 111 

failure of, 105 

partial failure, 106, 107 

fraud or duress, 107 

illegality total or partial in, 108 
Expression of: 

how expressed, 20, 22 

evidence to negative, when expressed, 21 
vary, when expressed, 21 

effect if expressed to be executory, 22 



distinguished from liability on instrument, 77, 205 

warranty of genuineness, 224 
discharged by holder's laches, 149 
presentment for payment to charge person liable on, 173 
notice of dishonor to person liable on, 205 
effect of alteration on, 252 

Construction, 

bills and notes in general, 63 

address to drawee and acceptance read together, 49 



INDEX. 291 

CoNSTRtrcTioif — Continued. 

evidence of usage when admissible, 66 
irregular biUa ut res magis valeat, 67 
signature as prineipaJ's or agent's, 49, 81, 85 
authority to sign biUs, 80 
agreements to renew, 254 
written notice of dishonor, 193 
verbal notice of dishonor, 194, 
See Interpretation of Terms. 

CONSTRUCTIVB POSSESSION, 

what it is, 60 

delivery effected by change in, 60 

giving right of action on biU payable to bearer, 146, 147 

CONTTlSrSENOT, 

bill or note expressed to be payable on, 9, 11, 26-30, 270 

CONTKIBTTTION, 

on payment by joint acceptor, 227, 258, n 
Co-OwiTBB. See Joint Parties. 

Copt, 

foreign copy distinguished from set, 40 
indorsement on foreign "copy," 122. 
presentment for payment and protest when bill lost, 162 

CORPOEATION, 

trading and non-trading, 75 

capacity to contract by bfli, 75 

power to transfer bills, 76 

signature of, 57 

effect of attaching seal of, to bill, 274, 275 

tests of liability, 57 

bill drawn on, accepted by officer in his own name, 49 

officer, accepted in name of corporation, 49 
bill payable to, indorsed by officer in his own name, 85, 133 
liability of director drawing biU or signing note for, 83, 84 

Costs, 

defending action on accommodation bill, 226. 

proceeding for, when parties sued concurrently, 230 

lien on bill for, 233, n 
Credit, 

open letter of, 210 

Cross Accbptance, 92 

Crossed Check, 269 

Custom of Trade, 

laws of bUls founded on, Introd. p. x. 



292 INDEX. 

Custom of Trade — continued. 

evidence of, wlien admissible, 66 
novelty of, when immaterial, 66, 67 
judicial decision overrides, 66 

Damages {Measure of). 

action by drawer against drawee for not accepting, 208 
holder against acceptor or maker, 212-214 
holder against drawer or indorser, 218, 219 
customer against.banker dishonoring check, 208 
accommodation party on contract of indemnity, 226 

conflict of laws, 214, 221 

Date, 

insertion of, in bill, 22 

omission of, in bill payable after date, 22 

ante-dating and post-dating, 23 

fixes maturity of bill, 24 

presumed issued on day of, 24 

unless dated on Sunday, 24 

evidence to confirm in bankruptcy proceedings, 24 

when interest runs from, 19, 20 

when Statute of Limitations runs from, 252, 253 

alteration, when material, 248 

not necessary to acceptance, 46 

omission in acceptance of bill payable after sight, 46 

place of date as against hond fid.e'hsAijst, 69 

Days of Grace, 

allowed on all bills not payable on demand, 30 
whether suit may be begun on last day of grace, 31 
' transfer on last day of grace, 137 
determined by lex loci solutionis, 33 
presentment on second day of grace iavalid, 159 
bill not entitled to, faUing due on dies non, 33 

Death, 

Of Holder: 

title to biU, 113, 114 

inchoate bill, 35, 38 

bill drawn payable to deceased person, 8, 143 

Statute of Limitations when intestate, 259 

delay in presentment or notice of dishonor, 169 

acceptor becoming executor or administrator, 239 

Of Drawer: 

drawee's duty to accept bill, 207 
banker's authority to pay checks, 267 
notice of dishonor, 190, 199 



INDEX. 293 

Death — continued. 

Of Indorser: ' 

notice of dishonor, 190, 199 

before delivery of bill to indorsee, 61 
Of Drawee, or Acceptor, or Maker: 

presentment for aoceptacoe, 154 

payment 164, 166 

notice of dishonor, 199 

holder becoming executor or administrator, 239 

indorser becoming executor, 197 
See Administrator — Executor — Donatio Mortis Caitsd. 

Debt, 

Antecedent or pre-existing, as consideration, 9^^, 97 
when bili is conditional on absolute payment of, 255 

Deed, 

transfer of bill by, 114 

De Facto Holder, 
defined, 132 
distinguislied from holder, 132 

mere possessor, 182 
power to give good title to transferee, 142 

valid discharge, 234 
right of action on bill, 141 

Definitions. See Interpretation. 

Dblivert, 

necessity for, 58 

what amounts to, 58-60 

by whom it must be made, 61 

transferor by, 221-224 ' 

conditional, 61-63 

obtained by fraud, 61 

negotiation of bill payable to bearer by, 119 • 

of biU. payable to order without indorsement, 114, 115 

liability of transferor by, 221-224 

place of, as against iona fide holder, 69 

Demand {Bill or Note paycMe on). See Cheek. 
what bills in legal effect are, 25 
acceptance of, 152, 262 

when deemed overdue, 136, 137, 265, 275, 276 
presentment to charge maker or acceptor, 172 

• drawer or indoiser, 159, 276 

Statute of Limitations as regards maker, 257 

drawer or indorser, 257 
interest by way of damages on, 212, 213 



294 INDEX. ^'-i'; 

Destbuction of Bill. See Lost Bill. 
payment when proved, 206 
notice of dishonor, 199 
voluntary, no recovery thereon, 14S 

Dies Non, 

biU falling due on, 32, 33 

and not entitled to grace, 33 
Computation of Time: 

presentment for acceptance, 153 
bni left for acceptance, 154 
notice of dishonor, 185, 187 

Diligence {due or reasonable), 155, 167, 184, 198, 222, 224 

DlKECTOKS, 

wheh personally liable on bills signed for company, 48, 49, 83, 84 
power of de facto, 57 

Discharges, 

discharge defined, 227 

effects of discharge, 227 

discharge of biU and of party distinguished, 228 

discharge inter partes, 228, 234, 240 

discharge when laws conflict, 228, 235, 259 

Different kinds: 

payment in due course, 229-238 

payment for honor suprd protest, 242, 243 

coincidence of right and liability, 239, 240 

confiisio, 240 

waiver or cancellation, 240, 241 
• alterations, 247-253 

renewal, 253, 254 

novatio, 255 

discharge of surety by dealings with principal, 244-247 

compensatio, 228 

foreign prescription, 259 

discharge under bankruptcy laws, 228, 245 

part payment as pro tanto discharge, 230 

Discount of Bill, 98 

Dishonor, 

Sy non-acceptance: 

defined, 156 
^ consequences of, 156 

re-presentment after, 46, 156 

omission to give notice of, 180, 181 

negotiability and status of bill after, 137 



INDEX. 295 

Dishonor — continued. 
By non-acceptance, 

subsequent acceptance, 46 

measure of damages against drawer or indorser, 218, 219, 221 

Statute of L'mitations, 257 

as breach of contract with drawer, 208 

rights of holder against drawee, 209 
By non-payment, 

defined, 170 

consequences, 170 
By acceptor, supra protest, 178 

" Domicile," 

meaning of term as applied to bills, 34 

DoiTATio Mortis CatjsS., 

bill drawn by third party held by donor, 116, 2G8 

donor, 116 
check drawn by donor, 268 

Draft, 1 

Drawee, 

letter B used in illustrations to denote, Introd. p. iv. 

defined, 2 

same person or firm as drawer, 3 

as payee, 2 
fictitious, 3, 155, 166, 197. See Fictitious Pat-ties. 
person not having capacity to contract, 155, 166, 197 
designation in bill, 4 
certainty required in address to, 4, 67 
alternative, 5 

joint, 5, 116. See Joint Parties. 
address to, construed with acceptance, 49, 67 
requisites of the order to, 9-15. See Order to Draicee. 
acceptance by, 48, 49, 78 

person who is not, 48, 215, 216 

one of several, 48, 52 
bill left for acceptance with, 154 
revocation of acceptance by, 60, 154 
obligation to accept or pay, 207, 266 
damages against, for non-acceptance, 208 
privity with holder, 209 
holder's right to fund in hands of, 209 

when the agent of holder for giving notice of dishonor, 182, 188 
death of, 154, 164, 166, 197, 199. See Death. 
bankruptcy of, 208. See Bankruptcy . 
■payment by, as a discharge, 230 



296 INDEX. 

Dbaweb — continued. 

presentment for acceptance to, 149-157. See Presentment for Ac- 
ceptance. 
payment to,' 157-170. See Presentment for Pay- 
ment. 
See Acceptor — Banker — Check — Payment — Dishonor. 
Dbawek, 

letter A. used in illustrations to denote, Introd. p. iv. 

defined, 2 

distinguished from maker of note, 277 

of bill and of check distinguished, 158, 264 

same person or firm as payee, 2 

as drawee, 3 
joint drawers, 191. See Joint Parties. 
signature, 4, 35, 56 
delivery of bill to payee, 58, 61, 62. 

fictitious person, 37, 143, 211, 218. See Fictitious Parties. 
forged or unauthorized signature of, 211, 218, 223, 237. See Forgery. 
contract with drawee, 207 
death of, 190, 199, 207, 267, 268. See Death. 
bankruptcy of, 199, 207, 225, 228, 267. See Bankruptcy. 
accommodation bill for drawer's benefit, 103, 104, 105, 166, 167, 195 

225, 245, 246. See Accommodation Bill. 
accommodation drawer, 103, 104, 196, 225. See Accommodation 

Party. 
capacity of, 71-76. See Capacity. 
authority of. See Partner — Principal and Agent. 
how far a surety as regards acceptor, 215, 244, 245 
relation to indorsers, 244, 245 . 
payment by, as a discharge, 231-233 
taki.ig up bill in a set, 40 
re-issue by, 135, 231, 282 
obligation to give a set, 89 
sontract with holder, 214 
interpretation of contract when laws conflict, 68, 69, 221, 228. See 

Conflict of Laws. 
estoppels which bind as such, 215 
measure of damages against, 218, 221 
Statute of Limitations as to, 257 
How Liability Negatived : 

intention to sign different document, 57, 58 

forgery, 88-91 

alteration, 250-253 

consideration negatived {including fraud, illegality), 102, 104-111 

transfer of property in bill to holder negatived, 61-63 

capacity to contract negatived, 71-76 

non-performance of holder's duties, 149-206 



INDEX. 297 

Dbawbk — continued. 

How Liahility Negatived, 
jus teriii, 62, 102 

discharge of bill or discharge inter pmies, 227-253 
Duplicate, 

right to hav6 bill drawn in a set, 39 
Duress, 108 

Equitable Assignment, 

order amounting to, distinguished ftombill, 12 

negotiation of bill distinguished from, 117 

bill as sulgect of, 114-116. See Transfer. 

check does not operate as, 209 
Equity {Court of). See Injunction — Mistake. 
Equitt Attaching to Bill, 138-141 
Erasure, 

effect of, 249 

onus probandi as to, 253 

Escrow 

bill delivered as, 63 
Estoppel, 

by negligence, 91, 286, 237 

by agreement or evidence, 80, 90, 144 

distinguished from ratification, 89, 90 

person disputing his own signature, 80, 90 

authority to fill blanks, 35 

authority of partner in trading, firm, 86 

married woman representing herself single, 73 

Arising on Bill : 

from drawing, 215 

from accepting, 74, 210, 237 

from indorsing, 217, 218 

from accepting, suprS protest, 225 

from making note, 277 
Evidence. 

of usage or custom, 66 

to show oral discharge, 63, 240 

to vary or contradict terms of bill, 63, 245 

where language of bill ambiguous, 65, n. 

contemporaneous or collateral writings, 65 

parol, as to indorsement in blank, 64 

undated bill expressed to be payable after date, 22 

undated acceptance of bill payable after sight, 46 

to show delivery was conditional, 61-63 

to supply blanks, 8, 16, 22, 46 

to identify payee when misdescribed, 7 



298 INDEX 

Evidence — continued. 

to negative consideration, 21, 63. See Consideration. 
to show different consideration from that expressed, 21 
of notice of dishonor by admission of liability, 201 
of waiver of notice of dishonor, 199, 200 
to show relationship of principal and surety, 244, 245 
to charge undisclosed principal, 77 
estoppels. See Estoppel, 
onusprobandi. See Onus Prdbandi. 

Exchange, 

contract of, underlying bill, Introd., p. sd. 
rate fixed by indorsement, 18 
bin payable "with current exchange," 18 
unauthorized. indorsement of a rate of, 249 
See Ee-exchange. 

EXECUTOK, 

When biQ held by testator vests in, 113 
authority to fill up inchoate bill, 35 
personal liability on bill signed as, 83 
. delivering biU made or indorsed by testator, 61 
effect when acceptor becomes holder's, 239 
holder becomes acceptor's, 239 
See Administrator — Death — Donatis Mortis Causd. 

Executory, 

consideration expressed on biU, 22 
contract of indorser, 120, 121 

Ex-paetnbks, 88 

Facitltative indoesembnt, 126 

FaILUBE of CONSIDEEATIOIf, 105-107 
FiCTITIOTJS NAME OB PAETT, 

real person using fictitious name, 49, 78 
Fictitious Drawer: 

title through, 37 

acceptor's estoppels, 211 

acceptor, suprd, protests estoppels, 225 

indorser's estoppels, 217, 218 
Fictitious Drawee, Acceptor or Maker: 

instrument, bill or note,, 3 

presentment for acceptance, 155 
payment, 166 

notice of dishonor, 197 
Fictitious Payee and Indorser: 

title through, 143, 144, 212, n. 

acceptor's estoppels, 212 



INDEX. 299 

Fictitious name ob 'Party— continued. 
Fictitious Payee and Indorser. 

drawer's estoppek, 215 

indorser'g estoppels, 218 

maker's estoppels, 277 

how if obviously fictitious, 8 
FiKM. See Partner. 

Fluctuating Balance, 

as consideration for bill, 96 
FoEBiaN Bill, 

defined, 38 
FoBEiGN Codes and Laws, 

references to, Introd., p. ix. See Conflict of Laws. 
FoBEiGN Currency, 

computation of sum payable, 18, 19. See Sum Payahle. 
Foreign Discharge, 228, 233, 259. See Discharge. 

F,OBGBRY, 

cancellation of bill by order of court, 91 
recovery of money paid, 235-238 
distinguislied'from breach of trust, 37 
renewal of forged bill by mistake. 111 
bill drawn against forged bills or lading, 106 
Forged or Unauthorized Signature: 

liability on, 88-91 

title made through, 88-91 

ratification, 89, 90 

payment in general, 83-91 

wife's indorsement forged by husband, 90 

party, estopped from disputing his own, 90, 91 

estoppels arising on bill, 210, 215, 217, 225, 277. See Esloppel. 
Fra/udulent A Iteration : 

general effect, 250- 

acceptance after, 211 

negotiation after, 223. 251 

payment after, 236, 238 
Fraud, 

affecting current bill, 107, 142 
ova-due biU, 137, 138 
original biU in case of renewal, 254 
property in bill obtained by, 108 
injunction to restrain negotiation, 108 
evidence to ehift<wt<s probandi as to value, 110 
Special Cases: 

check in favor of third party obtained by fraud, 61 

partner giving firm bill for private debt, 86, 89, 111 



300 INDEX. 

Fraud — continued. 
Special Cases. 

diverson of accommodation paper, lOS, n. 

indorsee for special purpose misappropriating bill, 62, 63 

blanks frandulently filled up, 35-37, 142 

personation of payee, 234 

bill accepted cai faith of forged security, 106 
See Forgery. 

Fbbnch Law {of Bills). 

"French Code," what and how cited, Introd., pp. vii., viii. 

weight given to, in England, Tntrod., p. vii. 
• theory of, compared with English, Introd., p. xi. 

summary of points of difference, Introd., p. xi., xii. 

notes and billets an porteur, 270 
GenekaIi Acceptance, 60, 157. &e% Acceptance. 
Genekal Indorsement, 123. 
German Exchange Law, Introd., pp. viii. 
Gift, 

as consideration for bill, 82 

of bill made by third party, 96, 104 

liability of donor on bill, 104 

In Contemplation of Death: 

bill held by donor drawn by third party, 116 
bill drawn by donor, 116 
check drawn by donor, 268 
Grace, Days of, 30, 32, 33, 185, 193. 
Guarantor, 

presentment for payment to charge, 172, 173 

notice of dishonor to, 204 

when indorser regarded as, 216 
History, 

of negotiable instruments, Introd., p. ix. 

ease law and code law compared, Introd., p. x. 
Holder, 

defined, 3 

(!?e/acto holder, 132 

holder for value, 94, 95 

as pledgee having a lien, 96 

as collateral security, 97 

6ow(?^(?» holder for value without notice, 98, 100, 101, 110 

holder claiming under bond fide holder, 101 

relations with drawee of unaccepted biU, 209 

acceptor or maker the holder at maturity, 239. 

marriage of, when a woman, 112. See Husband and Wife, 

death of. See Death. 



INDEX. 301 

Hoi/DEE — contin ued. 

bankruptcy of. See BanhriipUi/, 
laches of, 149 

Duties. ' 

presentment for acceptance, 149-157 

payment, 157-173 
after talring qualified acceptance, 157, 172 
protest of bill, 174.-177 
presentment when reference m need, 177 

to acceptor suprd, protest, 173 
notice of dishonor, 179-205 
on receiving payment, 206 
transfer of bill in a set, 39, 40 
payment to true holder, 234 
warranty of title to receive payment, 238 
to keep bill intact, 252, 258 
Bights : 

further negotiation of bill, 185, 136, 141, 142 

with defective .title to give gooij, title, 142 

to have bill drawn in a set, 39 

option to take acceptance suprd, protest, 53 

return of bill left for acceptance in twenty-four hours, 154 

option as to qualified acceptance, 157 

of one part of a set, 42 

of action and proof, 144r-148 

to fund in hands of drawee, 209 

Holiday, 

bill falling due on, 32, 33. See DiesNon. 

Honor, 

act of, 55 

See Acceptance for Honor — Payment for Honor, 

HouKS (Beasonahle), 153, 159 

Husband and Wipe, 
Husband : 

when bill payable to wife vests in, 112 
indorsing bill payable to wife, 90, 113 
action by, on bill payjable to wife, 113 
notice of dishonor given to wife, 190 
bill addressed to, but accepted by wife in her own name, 49 
Wife: 

capacity to incur liability, 73 
power to transfer bill, 74, 112 
indorsement forged by husband, 90 
right of survivorship in bill, 112 



302 INDEX. 

Husband and Wife — continued. 

Wife: 

when joined with husband in action, 113 
I. 0. U. 

whether a promissory note, 272 

Identity, 

payment to wrong person of same name as payee, 89, 234 
duty of person demanding payment to prove, 235 

Illegal consideration, 
current bill, 108,109 
overdue bill, 138 
renewed bill, 254 
stock -gambling contract, 109. n. 

Illustrations, 

letters used instead of names, Introd., p. iv 

same letter always used to denote same party, Introd., p. iv 

Immediate and remote parties, 101 
InchcJatb bill or note, 35-38 

Indemnity. 

action on lost bill, 148 
Indian draft code, Introd., p. viii. 
Indorsee. 

defined, 120 

included in term "holder," 3 

certainty required as to, 134 

rights under conditional indorsement, 127-128 
restrictive indorsement, 129, 130 

Indorsement, 
defined, 119 

no part of the bill oi- note, 10 
delivery requisite to complete, 58. See Delivery. 
how far a new drawing, 217 
transfer of bill payable to order without, 114, 115 
bin payable specially, 123 
bill already payable to bearer, 119, 124 
overdue biU, 137, 138, 202, 208 
non-negotiable bill, 217 
requisites in form, 121, 122 
place on bUl, 122 
by separate writing, 122 
on " copy " of foreign bill, 122 
bill in a set, 40 
allonge, 122 
striking out, 125, 232. See Cancellation. 



INDEX. 303 

Indorsbmbnt — continued. 

interpretation when laws conflict, 69 

authority to indorse, 80, 82 

forged or unauthorized, 88-91 

presumption as to time when undated, 136 

indorsement for part amount, 122 

general or in blank, 123 

special or full, 123 

conversion of blank into special, 124 

blank followed by special, 124 

qualified, or without recourse, 125 

facultative, e.g., waiving notice, 126 

giving reference in need, 127 

conditional, 10, 127 

restrictive, 128 

for special purpose, 61 

for collection, 105, 120, 129, 145. See Collection. 

by holder, 181, 132 

by person not the holder, 120, 132, 216 

by person to whom bill is transmitted by act of law, 1G3 

by holder when misdescribed, 133 

by holder under different name, 133 

by agent. See Principal and Agenti 

by partner. See Partner. 

by baiikmpt. See Bankrupt. 

by one of several payees, 133, 134 

to party liable on bUl, 135 

to prior holder, 134 

when court will compel, 115 

restrain, 91, 106, 107, 108, 141 
Indorsbh, 

defined, 120 • 

quasi-indorser, 120, 216 

of overdue bill, 159 

revocation of indorsement by, 59 

signature of, 56 

contract of, severable from transfer, 120 

same person or fii-m as payor, 196, 232 

capacity of, 71-76. See Capacity. 

iictitious. See Fictitious Party. 

death of. See Death. 

who liable as, 215, 216 

liability of indorser " without recourse," 126, 223, 224 

contract with holder, 217 

estoppels which bind, 217, 218 

measure of damages against, 218, 219 



304 INDEX. 

I NDOESBB — continued. 

effect of payment by, 231-233 

how far surety for drawer and acceptor, 244 

relations of successive, inter se, 244 

How liability negatived. 

by express terms, 125, 126 

conditional indorsement and condition unfulfilled, 127 

restrictive indorsement, 128 

re-transfer to prior party, 135 

holder not claiming through, 125 

intention to sign a different document, 57, 58 

forgery, 88-91, 250 

consideration negatived (including fraud, illegality), 101, 104-111 

property in bill not transferred to holder, 61-63 

capacity to contract negatived, 71-76 

non-performance of holder's duties, 149-206. 

jus tertii, 62, 102 , 

discharge of bill or discharge inter partes, 227-253 
Infant, 

capacity to incur liabiLity on bill, 72 

transfer, 73 
ratification of contract, 72 
agent, 73 

Informal Bill, 

incomplete, 85-88 

rule of construction, 67, 142, 272, 273 

when valid as equitable assignment, 12 
agreement, 272, 273, 
Initials, 

sufficiency of signature by, 56, 57. 

Injunction, • 

to restrain negotiation, 91, 106, 107, 108, 141 
for bill to be given up and cancelled, 91, 108 
to compel indorsement, 115 

Inland Bill, 
defined, 38 

presumption that bill is, 39 
protest not necessary, 176 
damages on, 218. See Damages. 

Insanity (fif Payee.) 

whether maker estopped from setting up, 277 

Installments, 

bill payable by, 29 

days of grace on biU payable by, 30 

when bill payable by, deemed overdue, 136, 137 



INDEX. 305 

Interest, 

Interest proper: 

on what bills, 19, 20 

from what date it runs, 19 

eflfect of altering or inserting a rate, 248, 250 

contingent agreement for, in bill, 17, 28 
As damages :■% 

how computed against acceptor or maker, 212, 213 
drawer or indorser, 218, 219 
production of bill at trial when claimed, 213 
■ when withheld, 213, 218, 219 
conflict of laws as to, 213, 214, 221. 

Interpretation, 

of bill when laws conflict, 69, 70 
Particular Terms: 

" acceptance," 42 

" accommodation bill," 102, 103 

" accommodation party," 103 

" act of honor,". 55 

" after sight," 31 

"at sight," 25, 26 

"bill of exchange," 1 

"6o»(^^(?e holder," 99 

"buying" a bill, 95 

"check," 261 

" consideration," 92 

" days of grace," SO 

"(?e/acto holder, "132 

"deHvery,"58, 59 

"discount," 98 

"dishonor," 156, 170 

to " domicile a bUl," 34 

"drawer," 2, 277 

" equity attaching to bill," 138 

"escrow," 62, 63 

"half-usance," 32 

"holder," 3 

"holder for value, "93, 95 

" immediate parties," 101 

"indorsement," 120, 216 

" in need " or " in case of need," 5 

"issue," 247 

"laches," 149 

"Hen," 97 

"money," 14 

20 



306 



INDEX. 



Ihtbepketation — continued, 
"Particular Terms: 
"month," 30 
"notarial act, "55 
"notice of dishonor," 179 
"notice waived," 126 
"noting," 173 
"on presentation," 26 
"payment," 229 
"pay C," 118 
"pay C. only," 6, 129 
" pay to the order of C," 6 
" pay to bearer, C, 6 
"presentment," 150 
" promissory note," 270 
"re-draft," 220 
" re-exchange," 219 
" remitter," 95 
"remote paxties," 101 
to "retire "a bill, 232 
" retour sans frais," 127 
" sale " of bill, 95, 221 
"trade" or "trader," 87 
"transferor by delivery," 221 
"usance," 32 
"value," 92 
"value received," 20 
" value in account with X," 128 
" without grace," 30 
"without recourse," 126 

Ibkbgulakitt, 

patent on bill, 142, 253. See Informal Bill. 

Issue, 

when bill deemed to be issued; 247 
alteration before or after, 247, 251 
presumed to coincide with date of bill, 24 
of bin on Sunday, 24, 25 



Joint and Sbvbbal Note. See Promissory Note. 

Joint Pakties, 

Joint Acceptor or Maker: 
payment by, 231 
contribution among, 227 
acceptance must be joint, 274 



INDEX. 30? 

Joint Pakties — continued. 
Joint Acceptor or Maker: 

when note construed as joint, 273 

power of partner to give joint and several note, 273 
Joint Drawee : 

presentment to, 166 

acceptance by one, 48, 52. See Qualified Acceptance. 

notice of acceptance by one, 157 
Joint Drawer or Tndorser : 

indorsement by, 133, 134 

notice of dishonor to, 191 
Joint Holder or Owner-: 

action on bill payable specially, 145 
to bearer, 146 

title to bill in case of death, 114 

indorsement by one co-owner to another, 105 

■Jus Tbrth, 

right of party liable to set up, 62, 102 
when payor bound to set up, 235 



Knowledge, 

how far equivalent to notice, 99, 179, 199 



Laches, 148 

Law Merchant, 

authority of, Introd. p. x., 66 
bills interpreted by, 63 

Letter, 

of advice, 208 

open letter of credit, 208 

sufficiency of address containing notice of dishonor, 184 

Lex, 

loci contractus, 68, 69, 178, 203, 221, 228 
loci solutionis, 19, 33, 69, 169, 214, 228 
fori, 259 
See Conflict of Laws. 

Lien, 

as consideration for bill, 96, 97 

rights and duties of holder having, 98 

of banker or broker, 98 

on bill for costs, 233, n. 

on bin paid by drawer or indorser, 233 



308 INDEX. 

Limitations [Statute of). 

general rule in action on bill, 256 
how time computed as to acceptor or maker, 256 
drawer or indorser, 257 
causes of action collateral to bill, 258 
how statute defeated, 259 
conflict of laws, 259 
debt barred by, as consideration, 92 

Locus BBGIT ACTUM, 69 

Loss OF Bill. 

protest on copy, 162 

presentment for payment of copy, 162 

notice of dishonor, 198 

payment where destruction proved, 206 

action on, 147, 148 

title of or through finder, 111, 126, 234 



Maker {of Note), 

letter B used to denote in illustrations; Introd., p. iv. 

defined, 271 

distinguished from drawer of bill, 277 

compared and contrasted with acceptor, 277 

contract with holder, 277 

estoppels which bind, 277 

when action may be begun against, 31 

payment by, 231 

Statute of Limitations, as to, 257 

signing as surety for co-maker, 246 

same person or firm as payee, 271 

when drawer of bill may be treated as, 8, 67 

when anomalous indorser liable as, 216 

presentment for payment when bill payable at particular place, 170, 

171 
notice of dishonor to, 208 

See Promissory Note — Acceptor. 

Marginal Notes {of Banker), 95 

Mark, 

sufficiency of signature by, 56, 57 

Married Woman. See Husband and Wife. 

Maturity, 

of bill how computed, 25, 30 

when ante or post dated, 24 
• when inchoate bill filled up, 37, n. 



INDEX. 309 



Matukity — continued. 

acceptance after, 46, 152, 156 

negotiation after, 136, 137, "202. See Overdue Bill. 

payment by acceptor before, 233 

action on bill before, 156 

whether bill overdue on last day of grace, 137 

Measubb of Damages. See Damages, 

Mbbgbb, 141, 229, n. 

MmoK. See Infant. 

MiSDESCKIPTION OR MISSPELLING, 

of bill in notice of dishonor, 191 
in payee's name, 7 ' 

in indorsement, 133 
in designation of drawee, 5, 49 

Mistake, 

alteration of bill to correct, 252 

power of court to rectify instrument, 252 

indorsement omitted at time of transfer by, 115, 116 

cancellation of signature by, 241 

indorsement struck out by, 125 

Recovery of money paid by mistake: 

from person who received it maid fide, 236 

londfide, 236, 237 
from correspondent or customer, 235, 236 

Monet, 

definition, 14 

instruments not payable in, 12, 13 
acceptance to pay otherwise than in, 47 
note giving option to holder, 274 
See Sum Payable. 

Month: 

interpretation of, 30 

Need {Case of), 5. See Case of Need. 

Negligence: 
estoppel by, 91 

compatible with bond fides in taking bill, 99, 100 
in execution of bill or note, 57, 58 
in making payment to wrong party, 235-237 
liability of collecting agent for, 150, 161, 264 
principal responsible for agents, 264 
bailee or pledgee responsible for, 98 



310 INDEX. 

Negotiation, 
defined, 117 

distinguished from other modes of transfer, 117 
what bills negotiable, 118 
modes of negotiation, 119-131 
by whom bill may be negotiated, 131-134 
to whom bill may be negotiated, 134, 135 
time of negotiation, 135-141 
rights acquired by, 141-144 

Negotiable IsrsTBtrMENTS, 

other than bills or notes, 13, 14 

origin and history of Introd., pp. ix., x. 

Negotiability, 

what bills originally negotiable, 118 
bill made negotiable at a particular place, 118 
to what extent bill negotiable, 135, 136 
restrained by indorsement, 128, 129 
conferred by custom, Introd., p. x. 

New Style ok Gkegokian Calbndae, 31 

No Effects, 

as excusing presentment, 166 

as excusing notice of dishonor, 195, 196 

NoN- Acceptance. See Dishonor — Notice of Dishonor. 

Non-Payment. See Dishonor — Notice of Dishonor. 

Non-Negotiablb Bill, 6. See Promissory Note. 

Non-Compos Mentis, 

capacity to contract of person, 72 

Notarial Act, 55 

NoTAEY Public, 

when intervention necessary, 54, 173, 242 

seal of, 174 

responsibility of collecting agent who employs, 161 

notice of dishonor given by clerk of, 195 

presentment of bill by clerk of, 174 

Note. See Promissory Note — BanTc Note. 

Notice {of Fraud or Illegality affecting BUT). 
what constitutes, 99, 137, 138, 142 
effect of, to agent, 100 

effect when good title intervenes, 100, 101, 138 
onws probandi as to, 109, 110 
creating privity between remote parties, 102 



INDEX. 311 

Notice of Dishonob, 

To charge Drawer or Indorsers : 
defined, 179 

why knowledge not equivalent to, 179 
when necessary, 179, 203-205 
consequence of omission to give, 180 
by whom given, 181, 182, 188 
in what manner, 182-184 
for whose benefit notice enures, 184, 185 
within what time by holder, 185 

by party receiving notice, 187 
to remote parties, 189 
time for transmitting through agents, 187 
use of mail for giving, 182, 186 
to whom given, 189 
verbal or written, 191 
requisites in form, 191 
construction of written, 193 

verbal, 194 
excuses for non-notice, 195-201 

delay, 202 
bUl dishonored by non-acceptance and negotiated, 180 
non-negotiable bill, 217 
bill indorsed when overdue, 202 
admission of liability as evidence of, 201 
subrogation of payor suprd protest for holder, 188, 243 
conflict of laws, 203 
To Charge other Parties: 
acceptor or maker, 203 
guarantor, 204 
person not party to bill but liable on consideration, 205 

Notice of Peotbst, 179, 187, 192 

Notice op Qualified Acoeptancb, 157 

Noting, 

defined, 173 

how effected, 173 

for what purposes equivalent to crotest, 174 

NOUGUIBR, 

work of, on bills, Introd. pp. viii., ix. 
Novatio, 255 



Old Style, 

in what countries used, 31 



312 INDEX. 

OhVS pROBANDr, 

bill inland or foreign, 39 

correctness df date, 24 

■fraliie and hond fides, 109, 110 

time of negotiation, 136 

time df Undated acceptance, 47 

alteration or erasure, 253 

lost iotiee of dishonor, 183 

value when payable at drawer's iouse, 195 

lelation of principal and surety, 244 

authority to fill blanks, 35 

authority of partner in trading firm, 85 

non-trading firm, 86 

bill alleged to be collateral security, 96 
Order (BiV, payable to), 

what bills are, 118 

effect of omitting words " or order," 118, 252 

how negotiated, 119 

transfer without indorsement, 114, 115 

action on, 145 
Order to Drawee, 9-15 

form of words, 9 

conditional or contingent, 9, 26 

imperative or precative, 10 

requiring payment out of particular fund, 11 

requiring something beyond payment of money, 12, 13, 17 
payment in bank notes, currency, etc., 13 
Origin, 

of negotiable instruments, Introd., p. ix. 

Overdue BilIi, 

negotiability of, 136, 137, 141 

equities attaching to, 138-140 

liability of indorser of, 202 

duties of indorser of, 159 

notice of dishonor to indorser of, 202 

acceptance of, 46 

status of bill dishonored by non-acceptance, 137 

presumption as to time of transfer, 136 

when court of equity will not compel surrender, 141 

When deemed overdue : 

bill payable on demand, 136 
note payable on demand, 275 
check, 265 

other bills and notes, 136 
Overruled Oases, 
, list of, p. xxvii. 



INDEX. 313 

Paeol Evidencb. See Evidence — Construction, 

Part ok Paktial, 

absence of consideration, 93, 104, 111 

axxieptanoe, 51. See Qualified Acceptance. 

acceptance for honor, 55 

failure of consideration, 93, 106, 107 

illegality of consideration, 108 

indorsement, 122 

ownership or interest, 105, 133, 134, 145,. 14S 

payment, 140, 230, 232 

Particular Fund, 

bill payable out of, 11 

Parties, 

necessary to bill of exchange, 2 

promissory note, 270, 271 
capacity of. See Capacity. 

authority of. See Partner — Principal and Agent, 
Partner and Partnership, 

trading and non-trading finns, 87 
Authority of Partner: 

to bind co-partners by bill, 85, 87 
to traasfer'firm bills, 87 

bin after firm dissolved, 88 
to draw post-dated check, 87 
Liability of Firm: 

firm signature essential to liability, 77 
firm style varied without consent, 77 

by consent, 78 
firm having different names, 78 

no firm style, 78 
bill addressed to firm accepted in partner's private name, 48, 49 
to one partner accepted in firm name, 49 
in wrong style accepted in right, 49, 50 
two firms of same name with common partner, 79 
partner giving bill for private debt, 86, 88, 89, 111 
bin payable to firm under wrong style and so indorsed, 87, 8'^ 
two bills accepted for same debt, 86 
unaccepted bill drawn by partner on firm, 77, 78 
Liability of Individual Partner: 
what firm signature includes, 79 
dormant or secret, 79 
person holding himself out as partner, 79 
retired partner, 79, 
ex-partner when firm dissolved, 88 



314: INDEX. 

Paetibs — continued. 

Liability of individual Partner: 

varying firm style without co-partner's consent, 77 
bill addressed to firm accepted in partner's private name, 48, 49 
to one partner accepted m firm name, 49 
Parts of a Set. See Set. \ 

Patent Ikregulabity {on Bill), 142 

Payee, 

letter C. used in illustration to denote, Introd., p. iv 
defined, 2 

included in term "holder," 3 
same person or firm as drawer, 2 
as drawee, 2 
as maker, 271 
when necessary to designate, 5, 6 
certainty required in designation, 6 
blank for name of, 8,;35, 36, 142 
fictitious. See Fictitious Parties, 
deceased person, 8, 143 
when he may indorse, 118 
See Holder — Indorsement — Payment. 

Payment, (by Bill), 

biU. considered as, 22'J, 254 

absolute and conditional payment distinguished, 93, 97 

Payment {of Bill), 

meaning of term, 229 

when deemed complete, 230 

in due course, what and efifect, 229. See Discharge, 

part payment, 280 

accommodation bill, 231 

bill in a set, 41 

forged bill or note, 88-91 

presentment for. See Presentment for Payment. 

sum payable,^5-20. See Sum Payable — Money. 

non-payment. See Dishonor. 

By whom : 

drawee, acceptor or maier, 280 

drawer or indorser, 40, 231, 232 

person not party to bill, 232, 283 

acconimodation bill by person accommodated, 231 

bankrupt when holder compelled to refund, 246 
Time : 

before maturity, 283 

at or after maturity, 233 

computation of time, 25, 30-33, 70. See Time. 



INDEX. 313 

Payment {of BUT) — continued. 
To whom: 

holder, 334 

de facto holder with defective title, 132, 234 

■wrong peraon of same name as payee, 234 

person claiming under a forgery, 88-91 

executor or administrator, 113 

duty of payee to prove identity, 235, 238 
Recovery of Money paid by Mistake : 

from, person who received it maid fide, 236 

bond fide, 236, 237 

from correspondent or cnstomer, 235, 236 

Payment toe Honok, srrpBi pkotbst, 
what bills, 242 
effect on bill, 242, 243 
requisite formalities, 242 
who may pay, 242 

holder's obligation to receive, 242, 243 
rights and duties of payor, 243 

Pencil Signatuke, 56 

Personation op Payee, 234 

Place, 

Of Drawing or Making . 
iadication of, 34 

of date in bill in hands of bond fide holder, 69 
Of Payment: 

indication of, 34 

time of payment determined by law of, 33 

acceptance restricted as to, 51. See Qualified Acceptance. 

presentment for payment, when designated, to charge drawer or 

indorser, 162—166 
presentment for payment, when designated, to charge acceptor 

or maker, 170, 171 
presentment for payment when none indicated, 164, 170 
Pledge, 

as consideration for bill, 96, 97 
rights and duties of pledgee, 98 

Post-dating, 
bill or note, 23 
See Check. 

Possession, 

actual and construclive, 60 

what change of, constitutes delivery, 58 — 61 



316 INDEX, 

Possession — continued, 

necessity for holder having, 132, 146 

de facto holder and mere possessor distinguished, 132 

■what sufBdent to supxwrt action on bill payable to bearer, 145, 147 

Post-office, 

agent of sender ch: recipient, 59 

property in half note sent through, 59, 60 

notice of dishonor sent through, 182-184, 186, 198, 202 

presentment for payment through, 161, 188 

miscarriage of, 183, 202 

POTHIER, 

authority of, in England, Introd., p. viJ 

Pke-existins Debt, 

as consideration for biU, 93, 97 

Pkematurb, 

presentment for payment, 159, n. 
payment or other discharge, 233, 240 

Presentment fob Acceptance, 

when necessary or optional, 149, 150 
means actual exhibition of the biU, 150 
consequence of omission when optional, 150 

necessary, 150, 151 
by whom, 150 

time for, when bill payable at or after sight, 150, 151 
time in other cases, 152, 153 
day and hour, 153 
to whom and where, 153, 154 
how long drawee may retain bill, 154 
excuses for non-js-esentment and delay, 154, 155 
eontracted with presentment for payment, 155 
ffhen merged in presentment for payment, 152 
dishonor and its cpnsequences, 156. See Dishonor-, 
Presentment for Payment. 

whether person presenting bound to prove identity,. 235 

warrants title, 238 
To Charge Drawer or Indorsers: 
consequence of omission, 158 

contrasted with presentment for acceptance, 155 ' 
what holder must demand, 158 
at what time bill payable on demand, 159 
biU indorsed overdue, 159 
note payable on demand, 276 
check, 262 

other bills and notes, 158, 159 
bin payable in installments, 159, n 



INDEX. 317 

PrbsSntment fob Payment — continued. 
To Charge Drawer or Indorser: 

on what days, 30 

at what hours, 159, 160 

by whom, 161 

production of bill, 162, 206 

at what place, 162 

to whom, 163 

excuses for non-presentment, 166-169 

excuses for delay, 169 

dishonor and its consequences, 170. See Dishonor, 
To Charge other Parties : 

acceptor or maker, 170, 171 

guarantor, 172 

person not party to bill, but liable on consideration, 173 
■ To Acceptor, suprA protest or Case of Need: 

consequence of omission, 177 

time and mode, 178 

non-payment, 178 

Prksumptions. See Ornis Probandi — Estoppel. 

Prijicipai, and Agent, 

Liability of Principal to Holder: 

on instrument when un-named, 76, 77 

on consideration when un-named, 77 

trading in name of agent, 79 

name si||fced by agent, 80, 86 

procuration signature, 81 

draft on principal accepted by agent in his own name, 49 

bill addressed to agent accepted by principal, 49 

construction of signature, 49, 79, 83-85 

forged signature, 88-91 

ratification of forged or unauthorized signature, 8s> 

estopped from disputing agent's authority, 80, 90, 91 
Liability of Agent to Holder: 

agent known to be such signing his own name, 76 

procuration signature, 81 

non-existing principal, 82 

signature as agent or representative, 83-85 

draft on principal accepted by agent in his own name, 49 
agent accepted for principal, 49 
Liability of Principal to Agent: 

indemnity to agent signing his own name, 258, 259 

part owner indorsing to co-owner for collection, 105 
Liability of Agent to Principal: 

indorsing bill to principal, 105 



318 INDEX. ' 

Principal and Agbnt — continued. 

Liability of Agent to Principal: 

collecting agent for negligence, 150, 161, 264 
employment of sub-agent, 161 

Existence and Effect of Agency : 
infant agent, 73 

■wife indorsing as husband's agent, 74 
evidence of agency, 80, 81 
general and special agency distinguished, 82 
effect of notice to principal or agent, 100 
indorsee under restrictive indorsement, an agent, 131 
drawer or indorser paying bill as acceptor's agent, 232, 233 
drawee agent of holder to give notice of dishonor, 182, 188 
notice of dishonor given by agent in his own name, 182 
agents to receive notice of dishonor, 189, 190 
time for transmitting notice of dishonor through agent, 187 
when holder deemed agent of previous holder, 102 
executor not agent of testator, 61. See Authority. 

PRiNCiPAii AND Surety, 

discharge of surety by dealings with principal, 244-247 
primd facie relationship of parties to bill inter se, 244 
evidence to show real relationship, 65, 244 
rights of surety compelled to pay, 226 
reservation of rights against surety, 244, 245 

Privity, 

none between holder and drawee, 209 |^ 

how created between remote parties, 102 

Procuration, 

effect of signature "per proc.," 81, 82 

Production, 

of bill when payment demanded, 162, 206 

presented for acceptance, 150 

at trial when interest claimed, 213 

Promissory Note, 
•defined, 270 

how far provisions as to "bills" apply to, 270 
compared with bills of exchange, 270, 272, 277 
when bill of exchange xa^y be treated as, 3, 67 
distinguished from banE note, 270 
foreign law, 270 
necessary parties, 270, 271 
maker and payee same person, 271 
delivery to payee to give effect to, 271. See Delivery. 
form of words, 270-273 



INDEX. 319 

Promissory Note — continued, 

conditional or contingent, 8, 27, 270 
, effect of indorsement making payment conditional, 10 
containing pledge of security, 274 
expressed in alternative, 274 
■under seal, 274, 275 
general construction, 67, 272 
construction -when signed by agent, 50, 83-85 
meaning of " after sight " in, 32 
negotiable by statute, 275 

presentment to charge maker of bill payable generally, 170 
of bill payable a^t particular place, 170, 171 
indorser, 276 

notice of dishonor to maker, 203 
protest of, 176 
payment suprd protest, 242 
maker's contract with holder, 277 
estoppels which bind maker, 277 
when suit may be begun against maker, 31 
Payable an Demand: 

when so deemed, 25 

effect as contiuuing security, 262, 276 

time for presenting to charge indorser, 276 

when deemed overdue, 275, 276 
, damages against maker, 213 

Statute of Limitations as to maker, 257. 
Joint and Several Note: 

when construed as, 273 

authority of partner to bind co-partners by, 273 

maker added to after issue, 249, 273 

alteration by erasing maker's name, 249 

converting joint note into, 249 

maker who is payee, suing co-makor, 271 

payment by one maker as a discharge, 231, 246 

giving time to maker when one co-maker a surety, 246 
Non-negotiable Note : 

when so deemed, 6, 118 

days of grace on, 31 

giving up on receipt of payment, 206 

liability of indorser, 217 

See Maker — Bill of Exchange. 

Pkopehty {in Bill), 

when ndorsement transfers, 119 
when mere delivery transfers, 119 
test as to when it passes, 58-63 
See Transfer — Delivery — Jus Tertii. 



320 INDEX. 

PlEOTEST, 

defined, 173 

requirements in form, 173, 174 
by whom to be made, 174 
at what time, 174 
place, 175 
for non-payment of bill protested for non-acceptance, 175, 176, 178 
notice of, 179, 180, 192 
when notice of dishonor a substitute for, 179 
lost bill, 162 

recovery of expenses of, 208, 213, 214, 219 
excuse for non-protest and delay, 176 
on non-acceptance or non-payment to charge drawer or indorsers, 

175, 176 
for non-payment to charge acceptor suprd, protest, 178 
on dishonor by acceptor suprd, protest, lli 
for better security, 177 
in case of qualified acceptance, 157 
Sae Acceptance suprd, protest — NoHny — Payment supra protest. 

Public Holiday. See Dies Non. 

Pdblio Policy (Consideration contravening), 108, 109 



Qualified, 
Acceptance: 

what acceptances are, 50-52 
^effect on prior or subsequent parties, 52 
holder's option to take, 157 
notice \o prior parties, 157 
presentment to charge acceptor, 172 
Indorsement, 125 
Delivery, 61, 62 

Railway Company, 

capacity to contract by bill, 75 

Ratification, 

of forged or unauthorized signature, 89, 90 

of infant, 72 

of action brought in name of principal, 146 

Reasonable Diligence, 155, 167, 184, 198, 202, 222, 223, 224 

Reasonable Houbs, 153, 159, 160 

Reasonable Time, 

presentment for acceptance, 150, 151 

payment, 159, 262, 264, 276 



INDEX. 321 

Ebason ABLE Time — continued, 

notice of dishonor, 185, 186 
. filling up blank signature, 36 

promise to accept, 44 

bill payable in, 29 
IJeceipt, 

indorsement by way of, 215 
Recovery of Monet Paid, 235, 238. See Mistake — Warranti/, , 
Re-draft, 220 

Re- EXCHANGE, 

what and how computed, 219, 220 
fixed sum in Jieu of, 220 
term used in different senses, 220, 221 
bill dishonored by non-acceptance, 221 
Liability for: 

drawee to drawer, 208 

acceptor to holder, 213, 214 

drawer or indorser to holder, 219 

Referee ih Case of Need, 5. See Case of Need. 

Ee-Isstte, 

by acceptor or maker, 135, 230, 233, 239 
by drawer or indorser, 135, 232, 233 

Release {Verbal), 

of biU or party, 240. See Discharge. 

Remitter, 95 

Remote Parties, 

notice of dishonor to, 189 

Remote and Immediate Paktibs, 101 

Renewal {of BiU), 
effect of, 253, 254 

consideration for original bill as affecting, 111, 254 
agreements to renew, 254 

Representative, 

personal liability of person signing as, 83 

Restrictive Indorsement, 128, 131 

what indorsements are, 128,, 129 

rights and duties of indorsee, 129, 130 

rights of indorser, 131 

position of payor, ISO 
"Retire," 232 
Re-transfer, 134, 135, 239 
21 



322 INDEX, 

Retocation, 

acceptance by drawee, 60 
.indorsement by indorser, 59 
of delivery, 60 

of authority by death, 38, 207, 267, 268 
of authority by bankruptcy, 207, 267 



Sale OF Bill, 

different meanings of term, 95 
lability of transferor by delivery, 221-224 
duty of transferee, 222, 223, 224 
warranty of genuineness and solvency, 224 

" Sans Fbais," 127 

"Sans Rbcoues," 126 

Satisfaction (other than money payment), 229 

Scotch Law Introd. p. ix., 6, 141 

Scrip, 

negotiable scrip or bonds, 13 

Seal, 

to signature of corporation, 57 

effect of adding to bill or note, 274, 275 

of notary to protest, 174 

Secueitt, 

collateral. See Collateral Security. 

protest for better, 17^ 

right of surety to creditor's, 226 

Set [Bill drawn in), 
how drawn, 39 
whole set one bill, 89 
obligation of drawer to give, 39 
duties of holder as to, 39, 40 
rights of holder of one part, 42 
acceptance, 40 
indorsement, 40 
payment, 41 
taken up by drawer or indorser, 40 

Set-off, 

whether an equity which attaches to bill, 139 
agreement to set-off, 229, n. 
holder suing as agent or trustee, 145 
surety sued by holder, 103, 104 
compensatio, 228 



INDEX. 323 

Sight, 

meaning of, in bill, 31 

" after sight," meaning of, in note, 32 

presentment of bill payable after, 150, 151, 153 

payable at, 150, 151, 158 
grace allowed on bills payable at or after; 30 

SiGNATTJEB, 

defined, 56 

immaterial by what hand, if authorized, 79 

what sufficient in point of form, 56, 57 

of corporation, 57, 274 

intended for whoUy different instrument, 57 

blank, 35, 142 

of drawer, 4, 56 

of indorser, 119, 121, 215 

of acceptor, 43, 82, 83 

of acceptor suprd, protest, 54 

of maker, 56, 215, 270 

essential to liability, 76 

firm signatures, 77, 78, 79 

real person signing in fictitious name, 78, 82 

effect of "perproc," 81, 82 

liability of person signing as agent or representative, 83 

forged or unauthorized, 88-91. See Forgery — Estoppel. 

cancelled by mistake, 241 

authorities to sign for another, 80, 81. 

to notice of dishonor, 194 
" SnsTGLB Bill," 56 
Special Indoksembnt, 

definition, 123 

effect, 124 

distinguished from restrictive, 129 

certainty required as to indorsee in, 134 

indorsement in blank converted into, 124 

action on bill so indorsed, 145 

Spoliation, 251 

Stakb-Holdbr, 

delivery of bill to, 59 

Stamp or Dib, 

sufficiency of signature, 56, 57 

Statute of Limitations. See Limitations. 

Stock-Gamblng Contracts, 109, n. 

Stolen Bill, 

title of bond fide holder to, 61, 111, 132 



324 INDEX. 

Stolen Bh/I, — continued, 

onus probandi as to value, 111 
payment to thief when a discharge, 234 
inchoate bill, 35, n. 

Sthaitgbb to Bill, 

indorsement by, 120, 216 
acceptance suprA protest by, 53 
payment by, 230, 231, 232 
payment suprd, protest by, 242 
rights of, as equity attaching to bill, 140 
acceptance for aijcommodation of, 103 
action on bill payable to bearer by, 146 
alteration by, 251 

presentment for payment to charge, 172 
notice of dishonor to, when necessary, 205 
given by, 181 

Stkiking out Indokbement, 125 

Suit. See Action. 

Sum Payable, 
insertion of, 15 
drawn for any sum, 15 
certainty required in statement, 16 
bill payable on or before certain date, 17 
stipulation for payment of attorney's fees, 17 
bill payable in installments, 17 

with current exchange, 18 
in merchandise, bank notes, etc., 13 
discrepancy between words and figures, 16 
effect when left blank, 17 
authority to fill blaak, 35, 36 
blank for, fraudulently filled up, 35, 236 
How Computed: 

biU payable in foreign currency, 19 
« depreciated currency, 18 

bill expressed to bear interest, 19 
biU payable according to exchange, 17 
Alteration of: 

effect, 248, 251. 

acceptance in ignorance after, 211 
'negotiation in ignorance after, 223, 251 
recovery of,money paid in ignorance, 236, 238 

Sum Ebcoverablb. See Damages. 



INDEX. 325 

Sunday, 

bill falling due on, 32, 33 

and not entitled to grace, 33 
bill issued on, 24, 25 
See Dies Non. 

Surety. See Principal and Surety, 

SUEVIVOKSHIP, 

wife's right of, in billa, 112 

Suspension {of right of Action), 
renewal of bill, 253, 254 
acceptance suprd protest, 55 
biU. given in payment, 254 

Time (in general), . 

See Reasonable Time — Dies Non. 

Time of Payment, 

certainty required as to, 26-30 

qualified by acceptance, 51. See Qualified Acceptance, 
effect of alteration in, 248, 250, 252 
effect of prepayment, 233 
, How Corhputed: 

no tim^ expressed, 25 

bill payable " on presentation" or " on demand" at sight, 26 

bill accepted after maturity, 25, 47 

bill indorsed after maturity, 25, 202 

bill payable by installments, 29, 30 

biU payable at or after sight, 31 

days of grace, 30 

dies non, 3J, 33 

usance, 32 

conflict of laws, 33, 70 

Trade and Trader, 

terms "trade" and " business " not co-extensive, 87 
trading and non-trading corporations, 75, 76 
partnership, 86, 87 
capacity to trade, 71 

Transfer, 

(A) By Act of Law: 
marriage, 112 
death, 113, 114 

(B) By assignment according to General Law: 
equitable assignment or deed, 114 

bill payable to order transferred without indorsement, 114, 115 
donatio mortis causd, 116, 268 



336 INDEX. 

Tbansfbb — continued, 

(C) By negotiation according to Law Merchant: 

negotiation defined, 117 

what bills negotiable, 118 
In what manner: , 

mode detennined by &nn, 119 

bill payable to bearer, 119 « 

to order, 119 

indorsement defined, 119 

indorsement as containing two contracts, 120 

formal requisites of indorsement, 121 

place for indorsement, 121 

partial indorsement, 122 

indorsement in blank, 123 

special indorsement, 123 

conversion of blank into, special indorsement, 124 

blank indorsement followed by special, 124 

qualifie 1 indorsement, 125 

facultative indorsement, 126 

indorsement with reference in need, 127 

conditional indorsement, 127 

restrictive indorsement, 128 
By whom: 

by de facto holder, 131 ^ 

by person not de facto holder, 132 

several payees or indorsees, 133, 134 
To whom: 

certainty required as to indorsee, 134 

re-transfer and re-issue, 134, 135 
At what time: 

to what extent negotiable, 135, 136, 141, 22'^ 

transfer before completion, 35, 38 

negotiation before issue by maker, 61 
• presumption as to time, 136 

when bill deemed overdue, 136, 265, 275 

transfer on last day of grace, 137 

negotiation after maturity, 137, 138 

dishonor by non-acceptance, 137, 180 
action brought, 141 
discharge, 227, 251 
Rights resulting: 

general rights of holder, 141, 142 

right of de facto holder with defective title, 142 

irregularity patent on bill, 142 

title through fictitious payee or indorser, 143 

de/acfo holder's right of action, 144 



INDEX. 327 

Tkansfbr — continued, 
■ Rights resulting : 

in whose name, action on bill payable specially, 145 

to bearer, 146 
action on lost bill, 147, 148 
Tkansfebob by Dblivebt, 
defined, 221 . 

liability on bill, 221 

consideration, 222 
■warranty of, 223, 224 
Tetjst, 

declaration of, as to bUl, 114 
Trustee, 

meaning Of -term as applied to bills, 131 
indorsee under restrictive indorsement as, 131 
holder paid in part by drawer or indorser deemed, 232, 233 
pledgee regarded as, 98 
- 'holder suing as, 145 
Tbtjsteb in Bankeuptcy, . 1 

notice of dishonor to, 190 



Usage, ••<, ._._ 

,, when evidence of admissible, 66 
how proved, 66 
holiday by, 38 

as to allowance of grace, 66, n. 
as to demand by notary's clerk, 66, n., 174 

Usance, 32 » 

UsuBY Laws, 20, 109 



Value, 

defined, 92. See Consideration. 

" Value Received," 

construction of the term, 21 
bill imports consideration, though not expressed to be for, 20 

Vabying Accbptancb, 50. See Qualified Acceptance. 

Vis Majob, 169 

Void Bill, 

when by statute, 109 

transfer by delivery without indorsement, 223 
when valid as equitable assignment, 12 
agreement, 273 



328 INDEX. 

Wager, 

as consideration for bill, 109, n. 
Waiver, 

of bill by holder, 240 

of liabilities of parties by holder, 240 

of presentment for payment, 168 

of protest, 127, 176 

of notice of dishonor, 126, 199-201 

of maker's rights in note,- effect of, 14, 15 

distingfuished from admission of due notice, 201 

Want of Consideration, , 

current bill, 104 
overdue bUl, 139 

WAHRANTYi 

of indorser, 217, 218 
of transferor by delivery, 223, 224 

of genuineness distinguished from liability on consideration, 224 
of solvency, 224 

' of title to bill by person demanding.payment, 238 
See Estoppels, 

WiDOvr, . 

light of survivorship in bills, 112 «? 

■wife representing herself as, 73 
Wife. See Husband and Wife, 
" Without Grace," 30 
Without Recourse, " 126