fe^.^

Bor-'

TREATISE ON THE LAW

PROMISSORY NOTES

BILLS OF EXCHANGE.

THEOPHILUS PARSONS, LL.D.

DANE PROFESSOR OF LAW IN HARVARD UNIVERSITY, AND AUTHOR OF TREATISES ON THE lAW

OF CONTRACTS, ON THE ELEMENTS OF MERCANTILE LAW, ON MARITIME LAW,

AND THE LAWS OF BUSINESS FOR BUSINESS MFJJ.

IN TWO VOLUMES.
VOL. I.

PHILADELPHTA:
J. B. LIPPINCOTT & CO.

1 S 7 0.

9>4^9s2> A

Entered according to Act of CongTMa, In the year 186'i. bv

THEOPHILUS PARSONS,

Jn the Clerk's Office of the District Court of the District of Massachoseti*

PREFACE

To the many existing works on the Law of Notes and
Bills, I have added another, in which I endeavor to cover
a wider ground. I have tried to present, in the text,
every important question in relation to this topic which
has been considered in the courts of England or any of
the United States, with the best conclusions I could form.
In the notes, I have cited very fully the cases bearing
upon these questions, — much the larger part of them by
name, volume, and page only, — that those who wish to
do so may pursue the investigation through the original
authorities. I have also quoted, freely, apposite passages
from the most important or instructive decisions, with
the purpose of meeting, so flir as that is possible, the
growing difficulty of accumulating in our libraries a com-
plete series of all the published Reports ; a difficulty
which is so great, and increases so rapidly, that it will
compel a reform. It is not desirable that this reform
should be accomplished by withholding the decisions, but
by compressing them. Some of the learned essays which
our Reports contain are very valuable. But it might be
a benefit to the courts, to the profession, and to the
community, if an avoidance of diff'ase and discursive
argumentation should give to the decisions point, pre-
cision, and weight, and permit a single volume to contain,
and to express distinctly, all the law which must now
be sought in very many, with much laboi', and some-
times imperfect success.

T. P.

Cambridge, September, 1862.

806214

CONTENTS OP VOL. I.

CHAPTER I.

THE ORIGIN AND FUNCTION OF NOTES AND BILLS . . 1

CHAPTER II.

PKOMISSORY NOTES.

SECTION I.
Definitions 14

SECTION II.
The Form of Promissory Notes 21

CHAPTER III.

THE ESSENTIAL ELEMENTS OF A NEGOTIABLE PROMISSORY NOTE,

SECTION I.
Certainty as to the Payee 30

SECTION n.

Certainty as to the Payor 35

SECTION ni.

Certainty as to the Amount 37

SECTION IV.
Certainty as to the Time of Payment 38

SECTION V.

Certainty as to the Fact of Payment 42

VOL. I. a*

VI COXTENTS.

SECTION VI.

When an Uncertainty is Matter of Form, and not of Substance . . il

SECTION VII.
Delivery 48

CHAPTER IV.

BILLS OF EXCHANGE.
SECTION I.

What they are 52

SECTION n.

The Obligations of the Parties 54

SECTION m.
Inland Bills and Foreign Bills 55

SECTION rv.

The Sets of Foreign Bills 58

SECTION V.
The Certainty requisite in a Bill of Exchange 60

CHAPTER V.

PERSONS WHO MAY BE PARTIES TO NOTES OR BILLS.

SECTION I.
Infants 67

SECTION 11.
Married Women 78

SECTION III.

Persons under Guardianship 89

CONTENTS. VU

SECTION IV.
Agents 90

SECTION V.
Partners 123

SECTION VI.
Lunatics 149

SECTION VII.
Aliens 151

SECTION VIII.
Bankrupts 153

SECTION IX.
fixecutors and Administrators 154

SECTION X.
Corporations 163

CHAPTER VI.

CONSIDERATION.

SECTION I.

The general Principles in relation to the Consideration of Notes
and Bills 175

SECTION 11.
Failure of Consideration 203

SECTION III.
Illegal Consideration 212

SECTION IV.
Transfers for antecedent Debts, or for Security 218

Vlll CONTENTS.

CHAPTER VII.

THE RIGHTS AND DUTIES OF THE MAKER.

SECTION I.
Where a Party signs as Principal • . . . . 229

SECTION II.
Where a Party signs as Surety 233

SECTION III.
Of joint Makers and several Makers 247

CHAPTER VIII.

HOLDER.

SECTION I.
Rights and Duties of the Holder 253

SECTION II.
Who is a honajide Holder of Negotiable Paper ....... 254

SECTION HI.
Against what Defences a honajide Holder is protected .... 274

CHAPTER IX.

ACCEPTANCE.

SECTION I.
What constitutes Acceptance 281

SECTION H.
Promise to accept . 292

SECTION HI.

Conditional and qualified Acceptances 300

CONTENTS. IZ

SECTION IV.
Acceptance for Honor 313

SECTION V.
What Acceptance admits 320

SECTION VI.
Extinguishment of the Obligation incurred by Acceptance . . . 324

CHAPTER X.

PRESENTMENT FOR ACCEPTANCE.

SECTION I.
Of the Rights and Duties of a Payee before Acceptance .... 330

SECTION II.
Proceedings on Non-acceptance 850

CHAPTER XI.

PRESENTMENT FOR DEMAND.

SECTION I.

Reasons for the requirement of Demand of Payment of Negotiable
Paper and of Notice of Dishonor 353

SECTION II.
By whom Demand may be made 357

SECTION in.
Of whom Demand may be made 361

SECTION IV.
In what Manner Demand should be made 367

SECTION V.
At what Time Demand should be made 373

^ CONTENTS.

SECTION VI.
At what Place Demand should be made 421

SECTION VII.

Excuses for Absence of Demand of Payment 442

1. Where the Demand for Payment cannot be made 443

2. Ins^olvency ... 446

3. Othei' Circumstances 448

4. The Acts of a Party which affect his Right to require Demand

of Payment 463

CHAPTER XII.

NOTICE OF DISHONOR.

SECTION I.
The Form of the Notice 466

SECTION n.
The Manner in which Notice should be given 477

SECTION III.
To what Place the Notice should be sent 487

SECTION rv.

To whom Notice should be given 499

SECTION V.

By whom Notice should be given 503

SECTION VI.
At what Time Notice should be given 506

CHAPTER XIII.

EXCUSES FOR WANT OF NOTICE.

SECTION I.

Excuses for Non-notice, grounded on the necessary Knowledge by
the Party to be notified 523

CONTENTS. XI

SECTION 11.

Excuses for Non-notice, grounded on Impossibility of Notice . . 525

SECTION III.

Excuses for Non-notice, grounded on the Absence of Right in any

Party to require Notice 539

SECTION IV.

Excuses for Non-notice, grounded on a Waiver of the Right to re-
quire Notice 575

1. When the Waiver is in Writing on the Note or Bill . . . . 576

2. When the Waiver is inferred from Acts of the Indorser or

Drawer 582

3. When the Waiver occurs on the Day of Maturity 592

4. When the Waiver occurs after Maturity 594

5. By whom the Waiver is made 609

6. To whom the Waiver is made 610

7. Presumptive Evidence in reference to Waiver 612

SECTION V.

General Remarks on the Subject of Excuse for Non-notice . . . 627

CHAPTER XIV.

OF PROTEST AND OF RE-EXOHANGE.

SECTION I.
Of Protest 633

SECTION II.
Of Re-exchange and other Damages 648

STAMPS.

These volumes were stereotyped before the Statute of the
United States imposing stamps was enacted. An Appendix has
been added at the close of the text of the second volume, imme-
diately before the Index, containing an accurate reprint of the
provisions of the Statute in relation to Bills, Notes, Lettei? of
Credit, Drafts, Orders, and Checks ; together with an examina-
tion of the questions which the Statute suggests ; and the English
authorities upon those questions which have arisen under the
English Stamp-Acts and may arise under our own.

INDEX TO CASES CITED.

Abat r. Nolt^

r. Rion

Abbe V. Rood

Abbey v. Lill

11.162

I. 504

II. 577

1.485; 11.491

Abbott V. Agricultural Bank of Missis-
sippi II. 92, 96
V. Hendricks I. 194
V. McElroy II. 645
V. Mackinley I. 83
V. Mitchell II. 470
V. Muir II. 472
V. Striblen II. 309
Abel V. Sutton I. 146 ; II. 7
Abell V. Douglass I. 198
Abercrombie v. Knox I. 237
Aborn v. Bosworth I. 464, 642 ; II. 261,
291, 294, 298
Abraham r. Dubois II. 330, 332
Abrahams r. Bunn II. 418
V. Skinner II. 331
Abrara v. Cunningham I. 162
Abrams v. Pomeroy II. 502
V. Suttlcs II. 622
Absolon V. Marks II. 440
Acheson r. Fountain I. 16
Ackermann v. Ehrenspergcr II. 140, 399
Ackland v. Pearco II. 490, 491
A'Court V. Cross II. 654
Active, The II. 170, 176
Adams v. Brackett I. 86, 88
V. Carver II. 467
V. Cordis I. 664 ; II. 370
V. Darby I. 537, 539, 542, 549
V. Frye II. 555, 556, 572
b

Adams v. Gregg I. 325

V. Hardy II. 121

V. Jones I. 49, 298 ; II. 132, 134

U.King 1. 31

V. Lingard II. 467

V. McGrew II. 610

V. Oakes II. 209

V. Otterback I. 397

V. Robinson I. 335

V. Rowan II. 431

V.Smith 1.221,261

V. Taylor II. 630

V. Torbert I. 382

V. Torry II. 634, 651

V. Wilson II. 509

V. Wordley I. 1 95, 301 ; II. 5 1 3

Adams Bank v. Anthony I, 237

V. Jones II. 444

Addams v. Seitzinger II. 662

Adkins v. Blake II. 92, 263, 275, 276

Adle V. Metoyer I. 229, 326

Aflfilo V. Fourdrinier II. 49 1

Agan I'. M'Manus I. 600, 612, 629, 632:

II. 516
Agawam Bank v. Sears I. 236; II. 577
V. Strever I. 268; II. 517
Agce V. Medlock II. 437, 439

Aggs V. Nicholson I. 170

Agnew V. Bank of Gettysburg I. 515

Agricultural Bank v. Bissell II. 406, 4 1 2,

421
Agricultural, &c. Co. v. Fitzgerald II. 577
Aikin v. Bailey II. 634

Ainslie v. Wilson II. 93

Airey v. Holmes II. 630

Albee v. Little II. 603

XIV

INDEX TO CASES CITED.

Alcock V. Alcock I. 149, 151 ; II. 6

V. Hill I. 240 ; II. 240

V. McKain II. 456

Alday v. Jamison II. 244

Alden v. Barbour I. 311 ; II. 473

Alderson, Ex parte . I. 336

V. Langdaie II. 550, 573

Aldis V. Johnson I. 382, 508 ; II. 120

Aldrich t;. Cambell II. 614

V. Grimes I. 67, 75

V. Jackson II. 37, 107, 187, 195,

485, 600

V. Morse II. 651

V.Warren 1.51,189

Aldridge v. Branch Bank I. 41, 49 ;

II. 514
Alewood V. Haseldon I. 381

Alexander v. Burchfield I. 273 ; II. 72,

74, 85

V. Burnet II. 634

r. Dennis 11.98,107,194,

195, 207

V. Mackenzie I. 120

i;. Oaks I. 45

r. Strong 11.215,285

V. Thomas I. 40,

Alger V. Thatcher I. 214

Alivon V. Fumival II. 358

Allaire v. Hartshorne I. 191, 223, 224

Allan V. Mawson I. 62

Allen V. Avers II. 448

V. Dundas I. 161 ; II. 83, 210,

212,387

r. Edmundson 1.469,471,488

i;. Furbish II. 524, 525, 527

V. Keeves II. 69

V. Kemble I. 641, 651 ; II. 342

V. Kimball II. 225, 530, 531

V. King I. 223, 226, 537, 544

r. Merchants' Bank of New

York I. 480 ; II. 340, 345, 347
V. Miles I. 310, 436, 437

V. Miller II. 309

I'. Newberry II. 439, 454

r. Rightmero II. 119, 130, 138

17. Sawtelle II. 641

V. Sea F. & L. Ass. Co. I. 24, 63
r. Smith I. 311, 432

c. State Bank I. 231, 232 ; II. 297,
298, 302, 312, 313, 314

Allen V. Suydam I. 337, 346, 34?

V. Union Bank of Louisiana I. 662

V. Walker II. 25

V. Watson II. 318

Allesbrook v. Roach II. 476

AUin V. Shadburne II. 440

Allison V. Pennington II. 649

V. Purdy II. 570

AUnutt y. Ashenden 11.128

Allstan V. Contee II. 228

Allston V. Allston II. 233

AUwood V. Haseldon I. 446, 529,

596, 610

Almy V. Reed 11. 298, 302, 305

Alner v. George II. 51

Alsop V. Goodwin II. 506

Alston V. Heartman II. 450, 451

V. Jackson II. 446

r. State Bank II. 663

Alves V. Hodgson I. 44 ; II. 318,319,330

Ambrose v. Hopwood I. 306

American Bank v. Baker I. 239, 242

V. Jenness I. 264, 270

Amherst Academy v. Cowls I. 202 ;

II. 46, 52, 444, 453

Ammidown v. Wheelock II. 46

u. Woodman 1.385; 11.461

Amner v. Clark I. 56 ; II. 329, 331

Amory v. Mery weather II. 418

Amoskeag Bank v. Moore I. 582 ; II. 534

Manuf. Co. v. Gibbs I. 260

Amsbaugh y. Gearhart 11.118

Anchcr v. Bank of England I. 1 7, 1 19 ;

II. 22, 590, 598

Anderson v. Anderson I. 229

V. Bustecd I. 273 ; II. 79

r. Cleveland I. 324, 374

V. Davis II. 132

V. Drake I. 424, 435, 441, 442,

451, 453, 455

V. George II. 239

V. Folger I. 537

r. Hawkins 11.91,101,189,600

r. Hcnshaw II. 201

V. Hick I. 302

V. Robertson II 608, 654

t;. Robson II 298, 308

r. Van Alen II. 46

V. Weston I. 41, 49; II 10,

489, 66J

INDEX TO CASES CITED.

Anderson v. Wheeler II. 364

V. Yell II. 508

Bridge Co. v. Applegate II. 290,

292, 294

Anderton v. Beck I. 531

Andover v. Grafton I. 119

Andrew v. Blachly II. 68, 69

Andrews v. Baggs I. 303

V. Boyd I. 590, 622

V. Carr II. 374

V. Chadbourne II. 9, 10

r. Creditors 11.318

V. Franklin I. 40

V. Herriot II. 318, 322, 327, 366,

368, 387

V. Hoxie I. 310

V. McCoy I. 225

V. Planters' Bank I. 126, 140

V. Pond II. 280, 318, 320, 324,

337, 376, 378, 407, 434

V. Whcaton I. 209

Androscoggin Bank v. Kimball I. 115

Angel V. Felton II. 286, 293, 306

Angell V. Ihler I. 326

Ankerstein v. Clarke II. 447

Anna Kimball, Cargo of the Ship, II. 169

Anonymous (2 Atk. 32) I. 26

(1 Brown, Ch. 376) II. 364,

365

(1 Camp. 492, n.) II. 16

(Comb. 401) 1.282,283

(Comb, 463) II. 228

(Cro. Eliz. 68) II. 223

(Hardres, 420) II. 391

(iLd.Raym.) 1.449; 11.293

(12 Mod. 345) I. 634; II. 41,

497

(12 Mod. 408) 11.154

(12 Mod. 517) II. 154

(12 Mod. 564) II. 209

(F. Moore, 122) II. 214

(1 Salk. 126;3id.71) II. 255,

263, 268, 269

(Skin. 343) II. 25

(7 Taunt. 244) II. 369

r. Harrison II. 120

V. Stanton I. 547

V. Ormston I. 14

Anson r. Bailey I. 596

Anthon r. Fisher I. 152

Antoine v. Morshead I. 152; II. 8

Apgar V Hiler I. 233, 235, 243

Appleby v. Biddolph I. 43

Appleton V. Bascom I. 243

V. Donaldson I. 226 ; II. 43

V. Sweetapple 1. 269, 378 ; II. 72

Aranguren v. Scholfield II. 300, 303

Arbouin v. Anderson I. 183, 258 ; II. 272,

273, 437, 438

Arcangelo v, Thompson II. 491

Archer v. Dunn II. 377

V. Hale II. 245

V. Putnam II. 408

V. Ward II. 577, 580

Arden v. Sharpe "I. 125

Arey v. Stephenson II. 651

Ariadne, The II. 174

Arlington v. Hinds II. 452, 518

Armani v. Castrique I. 58 ; II. 329, 589

Armat v. Union Bank I. 231, 232 ;

n. 100, 312

Armfield v. Allport I. 290

V. Tate I. 75

Armistead v. Armisteads I. 310, 429

V. Brooke II. 655

r. Philpot II. 92

Armitt v. Breame I. 386

Arms V. Ashley II. 93

Armstrong v. Caldwell I. 310

V. Brown II. 605

v. Christian! I. 468, 470

V. Gay I. 537, 538

e. Pratt II. 611

V. Thruston I. 365, 446, 470

V. Toler II. 321

Arnold v. Arnold II. 645

V. Bainbrigge II. 620

V. Bureau II. 453

V. Camp n. 179, 200, 202

V. Crane II. 186

r. Downing 11.649,651,654

V. Johnson II. 225

V. Jones II. 560, 565, 577, 581

V. Lyman I. 297 ; II. 62

V. Mayor of Poole I. 163

V. Revoult II. 211,446

V. Rock River Valley Union

Railroad Co. II. 147

Artcher v. Douglass I. 235

V. Zeh II. 161

XVI

INDEX TO CASES CITED.

Arundel Bank v. Goble
Ashby V. Ashby

V. James
Ashford v. Robinson
Ashley v. Gunton
Ashton V. Freestun

V. Longes

V. Pye

II. 240

1.31

II. 653

II. 128, 139

I. 494 ; II. 246

I. 328 ; II. 236

II. 466

II. 236

Ashurst r. Eoyal Bank of Australia

I. 153; II. 5

Aspinall v. Wake I. 161 ; II. 484

Aspinwall v. Meyer II. 437

Astor V. Benn II. 340

Atherfold t). Beard 1.190

Atkins ;;. Owen II. 286

V. Scarborough II. 639

V. Tredgold II. 659, 660

V. Wheeler II. 293

Atkinson v. Brooks I. 221, 223, 226 ; II. 43

V. Elliott II. 613

V. Hawdon II. 550, 573

V. Manks I. 45, 304

Atlantic, Brig II, 173, 174

Atlantic de Laine Co. v. Tredick I. 264

Atlas, The II. 173

Attenborough v. MacKcnzie I. 229

Attorney-General v. Life & Fire Ins.

Co. I. 164, 166 ; II. 494

Attwood V. Griffin I. 33

r. Mannings I. 107, 120 ; II. 489

V. Rattenbury II. 439

Attwooll V. AttwooU II. 605, 607

Austin w. Fuller 11.415,417

V. Harrington II. 408

T. Imus II. 377, 425

V. Latham I. 489

V. Rodman I. 541

V. Van derm ark I. 141

Australian Royal Mail Steam Nav.

Co. V. Marzetti I. 163

Averill v. Field
Avery v. Stewart
Awde V. Di.xon
Ayer v. Hawkins
V. Hutchins
Ayers v. Richards
Ayliff V. Scrimsheire
Aymar v. Beers

V. Sheldon

Aynsworth, Ex parte
Ayre v. Van Lieu
Ayres v. Audubon
V. Hayes
V. Henderson
V. McConnel
Ayrey v. Fearnsidea
Ayton V. Bolt

II. 537

I. 385, 400, 402, 408

L 113, 232; IL 526

IL 226, 653

I. 264, 275, 279

IL 649

IL 532

I. 264, 267, 269, 338,

340, 343, 345, 377

L 351 ; II. 336, 339,

340, 348, 372

11.412

IL 218

IL 327

n.393

II. 635, 636

II. 605

L37

11.651

Atwater v. Townsend

II. 359

Babcock, In re 1. 229

237

326 ; IL 250

Atwell V. Grant

1.641

V. Beman

L 96

Atwood V. Agricultural Bank

II. 646

V. Stono

L137

V. Crowdie

II.

225, 230

V. Weston

IL 361

V. Lewis

IL 538

Babson v. Webber

U. 505

r. Vincent

11.167

Bachellor v. Priest 1.

337,

357, 358 ; II.

r. Whittlesey

IL 417

209, 457, 544

V. Wright

IL 466

Bachus V. Richmond

II. 460

Aubert v. Walsh

. 84, 220

Backhouse v. Harrison

258; IL 187,

Augusta, The

IL 174

259,

260, 272, 277

Austen v. Halsey

IL 166

Backus V. Danforth

L 408 ; IL 45

Austin V. Bcmiss

IL 458

V. Minor

II. 425

i". Birchard

L51

V. Shipherd

580, 581, 589

V. Bostwick

IL 654

Bacon v. Brown

II. 227, 228

V. Boyd

II.

518, 520

V. Dyer

L 310, 432

V. Burns

L45

V. Fitch

L31

V. Curtis

1. 224

r. Gray

II. 633

r Foland

11. f,l7

r. Lee

II. 402

INDEX TO CASES CITED.

XVU

Bacon vj. Page

V. Searles

II.

Badcock v. Steadinan

Badeley v. Vigurs

Badnull v. Samuel

I. 245 ; II.

Bagley v. Buzzell

Bagnall ». Andrews

I. 539 ; II.

Bagster v. Earl of Portsmouth

Bailey v. Adams

V. Bailey

V. Baldwin

i>. Bidwell I.

188, 189; II

V. Cromwell

V. Day

V. Dozier

I. 642,

V. Freeman

II. 125,

V. Heald

V. Jackson

V. Knapp

V. Porter

V. Taylor

[I. 549, 577,

V. Wakeraan

Baillie v, Moore

Bainbridge v. Wade

;;. Wilcocks II.

Baine v. Williams

B.'^ird r. Cochran

I. 126; II.

V. Walker

B-vker V. Arnold

V. Baker

I. 155

V. Birch

V. Briggs

I. 242, 246

r. Brown

r. Charlton

r. Draper

V. Gallagher

V. Haines

V. Marshall

r. Martin

I. 229, 326

r. Morris

I. 495,

V. Scott

V. Smith

V. Stackpoole

II.

T. Townshend

V. Walker

I. 199

V. Wheaton

I. 275 ; II.

lialch V. Onion

Balcom v. Richards

Vol. l.— B

I. 381

218, 233

I. 51

11.441

240, 246,

533

II. 246

250, 466

I. 149

II. 533

II. 649

II. 247

. 283, 493

II. .535

I. 245

643, 644

129, 132

II. 339

II. 254

11.471

468, 469

579, 580

II. 471

II. 184

II. 131

327, 341

II. 228

467, 470

II. 641

II. 467

; II 645

587, 611

; II. 121

II. 645

I. 137

II. 180

I. 537

II. 476

I. 237

; II. 458

499, 504

II. 121

II. 609

223, 230

I. 215

; II. 247

215, 325,

359, 360

II. 489

II. 658

Baldwin v. Famsworth

1.421

V. Kichardson

I. 527

V. Kochford

1.45

Ball V. Allen

I. 33 ; II. 66

Ballaiitino v. Golding

II. 359

Ballingalls v. Gloster I.

351

; 11.372,463

Ballingcr v. Edwards

11.416, 428

Ballou V. Spencer

I. 140

V. Talbot

I. 99, 121

Balsbaugh v. Frazer

II. 619

Bamfield v. Tapper

II. 656

Banbury v. Lisset

I. 45, 301

Bancroft v. Andrews

II. 629, 64.-)

u. Dumas

II. 226

r. Hall

478,479, 48S

V. McKnight

224 ; II. 437

Bandel v. Isaac

II. 403

Bander v. Bander

II. 425

Bangor v. Warren

II. 152

Bank v. Hook

I. 661, 662

V. Treat

I. 252

Bangs V. Hall

II. 649

V. Mosher

241 ; II. 135

V. Strong

I. 239

Bank v. Arthur

II. 408

V. Porter

I. 634

V. Spell

I. 594

V, Sullivan

il. 654

Commissioners v. Lafayette Bank

II 88

Adams, v. Anthony

I. 237

V. Jones

II. 444

Agawam, v. Sears

236 ; II. 577

V. Strever

268; 11. 517

Agricultural, v. Bissell II. 406, 412,

421

of Albion v. Smith IL 516, 520, 521

of Alexandria v. Dyer II. 634

I'. Swann 1.466,471,

475, 476, 509

of America v. Woodworth I 442 ;

II. 547, 548

American, v. Baker I. 239, 242

V. Jenness I. 264, 270

Amoskoag, v. Moore I. 582 ; II. 534

Androscoggin, v. Kimball 1.115

Arundel, v. Goble II 240

Bangor, v. Hook I. 661, 662

V. Treat I. 252

Belmont, v. Patterson I. 36)

XTUl

INDEX TO CASES CITED.

Branch, v. Hodges
V. James
T. Peirce

Bank of Bengal v. Fagan I. 108, 272 ;

II. 79, 272, 273

V. Macleod I. lOS ; II.

272, 489

of Bennington v. Raymond I. 337

Boston, V. Hodges I. 369, 370, 4 1 1 ,

414, 419

I. 366

I. 235

I. 493
of Alabama v. Windham

II. 644

at Mobile v. Tillman II.

291, 294, 297, 301

of Montgomery v. Gaffney

I. 268, 359,372, 378, 382

Brooklyn, r. Waring 1.596

Cabot, V. Morton II. 37, 186, 187,

485, 486, 590, 600

V. Russell I. 497

Canal, v. Bank of Albany I. 275,

320, 321, 322 ; II. 38, 284, 483,

485, 590, 596, 599

of Cape Fear v. Seawell I. 470, 506

V. Stinemetz I. 57

Catskill, V. Messenger I. 248

T. Stall I. 125, 497

Cayuga Co., f. Bennett 1.482,501,

502

V. Dill I. 593

r. Hunt 1.362,418,

420, 421, 636, 644;

II. 433

r. Warden 1.471,473,

475,476,477; 11.348

Central, v. Allen I. 393, 404, 438,

451 ; II. 491

r. Curtis II. 454

V. Davis I. 369, 610

V. Willard II. 242, 531,

538, 539, 540, 541

of Brooklyn v. Lang

II. 449
of Charlestown r. Chambers I. 223 ;

II. 437, 444

Cbaatauque, v. Davis I. 358 ; II.

442

of Chenango v. Hydo II. 28, 444

V. Root I. 502

Chicopcc, V. Eager I. 483

Bank, Chicopee, v. Chapin I. 191, 221,
223 ; II. 44
of Chillicothe v. Dodge II. 107

Citizens', v. Walker I. 498

City, V. Cutter I. 369, 370, 399,

402, 403, 411, 643 ; II. 213, 462
City of New Orleans, v. Girard

Bank I. 651

Claremont, v. Wood I. 235 ; II. 250

of Columbia v. Fitzhugh I. 397

V. Lawrence I. 479,

482, 483, 487, 489,

495, 497, 498

V, Magruder I. 397,

495, 498

T. Patterson I. 1 63

of Commerce v. Union Bank II.

80, 482, 549, 590, 599, 601

Commercial, v. Benedict I. 231,

232; II. 100,298,301,

302, 313, 314

V. Clark I. 622, 626

V. Cunningham I 229,

326 ; IL 250

». French L 170,238;

II. 449, 451

V. Gove I 488

r. Hughes I. 464, 537,

632; II. 71

r. King I. 512, 518

V. Newport Man.

Co. L 170

V. Norton I. 106, 108

r. Routh I. 60

r. Strong I. 478, 482,

488, 489, 490

&c., ». Hamer 1.419,

435

V. Lum II. 577

of Natchez V. Clait)ornc

n. 445

of Penn. U.Union Bank

of N. Y. II. 209

of the Commonwealth r. Letcher

IL 160, 203, 204

V. McChord

II. 567

Cumberland,!;. Ilall II. 559, 577

at Decatur v. Hodges I. 642. 646 ;

II. 497

INDEX TO CASES CITED.

XIX

Bank, Decatur, v. Spcnce I. 110, 111

Dedluun, v. Chu'kering 11.227, 232
Dorclicster & Milton, v. New

Eri<,'land Bank I. 480

Dry Dock, v. Am. Life Ins.

Trust Co. II. 432, 433

Eagle, V. Chapin I. 515; II. 358.

491

V. Hathaway 1. 483, 484, 487

of New Haven v. Smith

11.37, 101, 189,306, 600

East Haddam, v. Scovil I. 480

Eastern, v. Brown I. 495

V. Capron II. 614

East Kiver, v. Gedney I. 273 ;

II. 74

of England v. Newman I. 362 ;

II. 158, 184, 185

Erie i'. Gibson I. 237, 238

Exchange, v. Monteath I. 109 ;

II. 478

Fall River Union, v. Willard 1. 337,

348, 372

Farmers', v. Brainerd I. 659, 660

V, Butler I. 480, 482, 483

V. Clarke II. 652

V. Duvall I. 367, 370, 373,

511,512; 11.461,492,495

V. Gilson II. 638

V. Reynolds, I. 231, 232;

11.101,246,297, 301,

302, 304, 312, 313

V. Vanmeter I. 537, 554,

556, 560, 648

V. Waples I. 585, 587

&C. V. Battle I. 480, 484,

495, 497, 498

V. Catlin II. 498

V. Harris I. 494

V. Rathbone I. 229,

326

Farmers & Mechanics', v. Kerchcval

II. 137

V. Troy

City Bank I. 169, 173

Farmers & Mechanics', of Kent

Co. V. Butchers & Drovers'

Bank I. 273 ; II. 75, 76, 478

Farmers', of Lancaster v. Whitehill

II. 476, 496, 497

Bank, Farmers & Mechanics', of Mem-
phis V. White II. 95
Franklin, v. Cooper I. 616
V. Freeman II. 67
r. Pratt II 467, 469, 470
Freemans, v. Perkins I. 57, 643
V. Rollins I. 236, 241 ;
IL 242, 24.5, 533
Frontier, v. Morse II. 100, 103, 105,
192, 193, 197
Fulton, V. Beach II. 416
V. Phoenix Bank I. 222 ;
II. 107, 283, 298
of Galliopolis v. Trimble II. 375
of Genesee v. Patchin Bank I. 164,
16.5, 166, 171
of Geneva v. Hewlett L 490, 498
Girard, v. Comly II. 522
Gloucester, v. Salem Bank II. 99,
101, 190, 195, 598
V. "Worcester II. 238
Grafton, v. Doe II. 642
V. Flanders I. 122
V. Hunt n. 193
V. Kent L 235 ; IL 515
V. Moore I. 640, 642, 643
V. Woodward I. 235 ; II.
529
Grand, v. Blanchard I. 369, 509
Grand Gulf, r. Archer IL 433
V. Wood IL 52
Granite, v. Ayers I. 362, 423, 446,
448, 460, 488, 489, 528
V. Ellis II. 445
Hallowell & Augusta, v. Howard

IL91

of Hamburg v. Johnson I. 47, 116

V. Wray I. 1 22

Harrisburg, v. Forster U. 469

Hancock, v. Joy I. 81

Hartford, v. Barry L 173, 358, 359,

385; IL 209

V. Hart L 478; IL 492,

594

V. Stedman L 358, 483,

509

of Hartford Co. v. Waterman II.

630, 639, 640

Housatonic, r. Laflin 1.466,471,

473, 509. 510

INDEX TO CASES CITED.

Bank of Illinois v. Brady 11. 336

of Ireland v. Archer I. 285, 292
v. Beresford 1,229,326;
II. 245, 249, 250, 515
Jefferson Co., v. Chapman II. 88,
91,98
of Kentucky v. Garey I. 641, 642
V. Hickey I.310;II. 88
V. Parsley I. 635

V. Sanders I. 44

V. Thornsberry II. 83
Lancaster, r. "Woodward 1272,275,
378; II. 77, 83
Lee, V. Spencer I. 529, 610

V. Walbridge II. 434

Lewiston Falls, v. Leonard I. 495
Lime Rock, v. Macomber II. 444
r.Mallett L 235; II. 540
of Limestone, v. Penick I. 290 ; II.
557, 465
Lincoln & Kennebec, v. Hani matt
I. 369 ; II. 516
Lincoln & Kennebec, v. Page 1. 369 ;
II. 516
Louisiana, v. Bank of U. S. II. 281
of Louisiana v. Mansker I. 488

v. Morgan I. 555

V. Smith I. 501

V. Toumillon I. 483,
498
r. "Watson I. 498

Louisiana State, v. Ellery I. 499
r. Rowel I. 483
V. Orleans Naviga-
tion Co. II. 275
of Louisville??. Summers II. 93, 294,
303
Maine, v. Butts II. 412, 421

V. Smith I. 370, 570

Maiden, v. Baldwin I. 439, 440

of Manchester ». Bartlctt 1.238

Manchester, v. Fellows 1.412,413,
414, 482, 483,484,510,
513, 514, 515 ; II. 462
V. Slason I. 497, 635 ;
II. 348, 452
r. "White I. 510

Manufacturers', v. Cole I. 239 ; II.
444, 445
&c. I'. Winship I. 1,32

Bank of Marietta v. Pindall II. 358

Marine & Fire Ins., v. Jauncey I.

290, 335

of the City of New York, v.

Clements II. 478

Mariners', v. Abbott I. 235, 241,

246; n. 519

Massachusetts, v. Oliver I. 501, 502

Mechanics', v. Bank of Columbia

L 94, 95
V. Earp I. 104, 105

V. Griswold I. 529,

562, 566, 632
V. Hildreth I. 146

V. Merchants' Bank

I. 368, 373

V. Minthome I. 371

V. N. Y. & N. H. R. R.

Co. L 108, 119; IL

33,34, 35, 115, 116

Mechanics', &c. r. Compton I. 497,

493

r. TowTisend I.

427

& Farmers', v. Schuyler

L 115,386; II. 11

of Memphis v. "White II. 643, 644

Merchants', v. Birch I. 501

V. M'Intyre II. 590

V. Rawls II. 620

V. Spalding 11. 90

V. Spicer I. 23, 36 ; II.

16, 58, 72, 73

Merrimack Co. v. Brown I. 241,

595 ; II. 223

of the Metropolis v. Jones II. 468

of Michigan v. Ely I. 293, 294, 296,

298

Michigan, t>. Leavenworth I. 241

State, V. Peck I. 299

Middletown, v. Jerome II. 493

of Missouri v. Hull II. 467, 470

V. Phillips I. 232 ;

n. 525

v. "Wright I. 664

of Mobile r. Hall L 221, 225

Mohawk, r. Broderick I. 271 , 554 ;

II. 58, 59, 68, 69, 71, 72

V. Corey I. 222, 226 ;

IL78

INDEX TO CASES CITED.

XXI

Bank, Mohawk, v. Van Home II. 247
of Monroe v. Strong II. 420

Montgomery Co. v. Albany City

Bank I. 481 ; II. 209

Montgomery Co. v. Marsh I. 490,

498

of Montgomery Co. v. Walker I.

326; II. 250

of Montpelier v. Dixon I. 237 ;

II. 250

Mount Vernon, v. Holden I. 478,

482

Narragansett, v. Atlantic Silk Co.

I. 167

National, v. Eliot Bank II. 61, 62

r. Norton 1.146,147

of Newbury v. Rand II. 445

New England, u. Lewis 1.411,413;

II. 462

N. H. Savings, v. Colcord I. 241,

242

v.EIa I. 241; II. 245

New Haven County, v. Mitchell II.

491, 496

New Orleans, v. Harper I. 539, 540

557, 596,601, 604, 619

N. Y. State, v. Fletcher II. 162

New York & Virginia, &c. v. Gibson

I. 189, 291,330,332

of Niagara v. M'Crackeu II. 88, 98,

604

». Rosevelt 11. 91

North, V. Abbot I. 311, 369, 370,

432,439

of North America v. Barriere 1. 381,

519

V. M'Call II. 366

V. M' Knight I.

395, 507

V. Meredith II.

226

V. Pettit I. 507

V. Vardon I. 507

of North Carolina ». Bank of

Cape Fear I. 310, 429, 431

North Hampton, v. Balliet II. 36

V. Pepoon I. 171,

172; II. 8, 220

Northern, r. Farmers' Bank I. 231,

232; II. 100, 313,314

Bank, Northern, of Ky. v. Lcverick 11. 298,

307

North River, v. Aymar I. 108

Norwich, v. Hyde I. 28 ; II. 12

Onondaga Co., v. Bates I. 640, 641

Ontario, v. Liglubody II. 192

V. Petrie I. 401, 476

V. Schcrmerhorn II. 433

V. Worthington I. 224,

285, 293, 294

of Orange Co. v. Colby II. 333,

336, 351

Oriental, v. Blake I. 364, 501, 526

of Orleans v. Merrill I. 26

V. Whittemore I. 455,

456, 457

Oswego, V. Knower I. 587

Otsego Co., V. Warren I. 362, 595,

620, 636, 646

Oxford, ». Davis I. 337

V. Haynes I. 238; II. 117,

119, 137

V. Lewis L 241 ; IL 241,

242, 245, 246, 250, 533

Pacific, V. Mitchell II. 219

Paterson, v. Butler I. 491, 499

Philadelphia, v. Newkirk I. 38

Phoenix, r. Hussey 1.57,314,642-,

11.324

Planters', v. Bivingsville Manuf.

Co. II. 434

r. Bradford I. 494

V. Markham I. 419

V. Sellman II. 533

V. Sharp I. 164

V. Snodgrass IL 412,422

V. Stockman II. 228

V. White I. 501

of Port Gibson v. Baugh I. 145

Portland, v. Brown II. 228

of Poughkeepsie v. Hasbroack

1.224

Prescott, V. Caverly I. 79, 338, 340,

342, 345 ; IL 484, 490, 519, 589

Quinsigamond, v. Hobbs II. 421

Real Estate, v. Bizzell I. 638 ; II.

499

of the Republic v. Baxter I. 273 ;

II 77

V. Carrington I 223

S.XU

INDEX TO CASES CITED.

Bank of Ilcchester v. Bo wen I. 125, 140

r. Gould 1.470,471,

473, 475, 476

r. Gray 1.351,634,

635, 636, 640; 11.319,342

». Monte.^th 1.92,132

Rockingham, v. Claggett II. 455

of Rome v. Village of Rome II. 35

Royal British, v. Turquand II. 35

Royal, of Scotland, Ex parte II. 50

V. Cuthbcrt II.

360,361,363

Ruckersville, v. Hemphill II. 607

of Rutland v. Buck I. 226 ; II. 27,

28, 445

of St. Albans v. Farmers', &c. Bank

II. 589, 590

V. Gilliland I. 128,

221

V. Scott II. 412

Salem, v. Gloucester Bank II. 38,

90, 101, 186, 189, 477

of Salina v. Babcock I. 222

of Sandusky v. Scoville I. 221

Savings, u. Bates 1.223,396,416

of Scotland v. Hamilton I. 347

Seneca Co., v. Neass I. 432, 482,

490, 498, 645

T. Schermcrhorn II. 434

Seventh Ward, v, Hamick I. 513,

515, 518; II. 244

Silver Lake, v. North II. 358

Skowhegan, r. Baker II. 445, 453

South Carolina, v. Case I. 131

of S. Carolina r.Flagg 1. 310, 432,

435, 436

r. Herbert 1.115;

II. 7

V. Humphreys I. 146

V. Knotts II. 638

V. M'Willie I. 115

V. Myers I. 561, 567,

II. 245, 247, 248, 533

Springfield, v. Merrick II. 146, 540

Stamford, v. Benedict II. 228

State, V. Acrsten II. 100, 312

V. Ayers I. 480, 497

V. Bowers I. 656

V. Byrd II. 632

V. Coqiiilhird II. 406, 428

Bank, State, r. Cowan 11. 412, 422

V. Croft n. 7

V. Fearing II. 212

V. Hennen U. 488, 499

V. Hurd I. 369,425; II. 152

516

V. Napier I. 436, 437

V. Rodgers I. 656 ; H. 434

V. Seawell II. 635

V. Slaughter I. 483, 502

V. Smith I. 393

V. Van Horn II. 88

r. Watkins I. 238

V. Wilson II. 245

of Indiana v. Hayes I. 641

of Steubenville v. Hoge II. 245

Strafford, v. Crosby I. 240 ; II. 240,

533

Suffolk, V. Worcester Bank II. 394

Sussex, V. Baldwin I. 357, 358, 359,

421, 425, 470, 511, 512, 513, 514,

516, 589, 596, 600, 601, 604, 619

of Syracuse v. Holiister 1.419, 435

Taunton, v. Richardson I. 585, 589 ;

II. 516

of Tennessee v. Barksdalo II. 118,

126

V. Johnson I. 254

Ticonic, v. Johnson II. 421

V. Stackpole I. 635, 642, 644

Tombeckbee, v. Dumell I. 146, 148,

312

V. Stratton II. 250

of Troy v. Topping I. 198

Troy City, v. Lauman II. 484

Ulster Co., v. McFarian I. 294, 296,

298, 299 ; II. 109

Union, v. Brown I. 497

r. Cnrr II. 564

r. Ellicott 11.91

V. Fowlkcs I. 639, 646

V. Grimshaw T. 504, 596,

^9<^ 600, 622

V. Hnll II. 247

V. Hyde T. 499, 576, 582,

642,643,647; 11.329,499,516

V. Lea I. 499

V. Mngrndcr I 591

V. Oslmrne II. 301

I'. Stoker I. 497

INDEX TO CASES CITED.

XXIIJ

Bank, Union, v. Warren
r. Willis

II. 298, 299,

301, 31.3

I. 363; II. 121,

124, 520

of La. ». Coster II. 109,

132,140

of Tenn. 75. Smiscr 11.153

of United States v. Bank of Georgia,

II. 99, 186, 188, 195, 196, 203,

285, 590, 594, 596, 599, 600

V. Binney I. 132,

133

V. Carneal I. 435,

436, 437, 472, 495, 496, 497, 498

V. Cliapin 11.371

V. Corcoran I. 484,

495, 496

V. Daniel I. 642,

660; 11.154

r. Davis I. 514

r.Donnally 11.318,

354,356,366,383

r. Dunn II. 468

V. Ellis I. 596

T. Fleckner I. 173

- V. Goddard I. 515

V. Hatch I. 494 ;

n. 239, 240, 245, 492, 533

V. Lane I. 490

V. Leathers I. 601,

620, 643 ; II. 499

V, Lyman I. 621,

622; IL 451

r. Merle I. 488,

509, 510

V. Norwood 1.470,

483

V. Owens II. 408,

434

V. Russel II. 550,

581

r. Sill L 231, 232;

li. 100, 258, 287, 293, 298, 312, 314

V. Smith I. 309,

311,431,432

V. Southard I. 596,

601,606, 612,619

V. United States

I. 651, 658. 662;

II. 220, 442

Bank of United States v. Waggener

II. 406, 408, 434

of Utica V. Bender I. 490, 49 1.495

V. Davidson I. 493, 495

t;. DeMott 1.490,491

V. Ganson II. 445

V. Hillard II. 469

V. Ives II. 240, 245, 533

V. Phillips L494; 11.421

T. Smedes L 377, 381

V. Smith I. 358, 410, 435;

11.442

V. Wager I. 411 ; II 412,

421

of the Valley v. Strihling II. 40*

Veazie, v. Paulk II. 427, 461

V. Winn I. 411, 413, 414 ;

II. 68, 72, 462

of Vergennes v. Cameron I. 128,

141, 230, 367, 610, 620, 636, 646

Vermont State, v. Porter II. 364

of Virginia v. Ward I. 231, 232 ;

II. 101, 297, 312,313

Waldo, V. Lumbert I. 125

Warren, v. Suffolk Bank I. 480

Washington, v. Prescott II. 225

V. Shurtleff II. 140,

143, 399

of Washington v. Triplett I. 337,

396, 397, 399 ; II. 324, 340, 342

Watervliet, v. White I. 96, 170 ;

U. 442, 595

West Branch, v. Fulmer I. 523

V. Moorehead II. 223

Western, v. Kyle II. 505

Westminster, v. Wheaton I. 271 ;

IL68

of Wilmington, &c. v. Cooper I. 31 1,

394, 432

r. Simmons II. 247

Windham, r. Norton I. 373, 443,

460, 461, 463

Woodstock, V. Downer II. 145

Worcester, v. Wells II. 340, 342

Worcester Co. v. Dorchester, &c.

Bank L 115, 189, 232, 259;

II. 278, 280, 2S1, 282

Banks v. Colwell L 376 ; II. 604

f. Dixon n. 301,. 305

V. Eastin II. 209

XXIV

INDEX TO CASES CITED.

Bann r. Dalzell
Banorgee v. Hovey
Barbarin v. Daniels
Barber v. Backhouse
V. Gingell

V. Gordon
V. Minturn
Barbour v. FuUerton

n. 396
I. 296, 29S
n. 456
I. 207
I. 92, 101 ; II. 196,
489, 594
II. 532
II. 326
I. 269, 270
Barclay, Ex parte I. 503 ; II. 164, 203, 234

V. Bailey
V. Gooch
V. Kennedy
». Walmsley
T. Weaver
Barelli v. Brown
Barger v. Durvin

I. 418, 419
II. 154
n. 425
II. 428

I. 584, 587

II. 161

II. 654. 657, 661

Baring v. Clark I. 314 ; U. 220, 456, 488

V. Lyman
Barkalow v. Johnson

I. 297 ; II. 109

I. 596, 600, 601,

603, 619

II. 638

I. 494

Barker v. Cassidy
V. Clark

V. Grout II. 51

v. Hall I. 480

V. M'Clure I. 239

V. Mechanic Ins. Co. I. 97. 164,
165, 169, 170
V. Parker I. 401, 456, 461, 592
V. Prentiss I. 195 ; II. 467, 469,
470, 518, 519, 521, 525
V. Sterne 1.49 ; II. 12, 342

V. Talcot I. 156. 157

V. Vansommcr II. 408

Barlow v. Bisliop I 78, 79, 80 ; II. 21 1

V. Broadhurst

L 38

V. Flemming

n. 522

V. Planters' Bank

I. 385, 401

Barnard v. Gushing II.

145, 146, 541

V. Flint

L279

V. Planters' Bank

IL 495

V. Young

11.409

Barnes v. Foley

n. 315

V. Gorman

145

V. Ilcdley

II. 420

V. Modisett

n. 446

V. Reynolds

I 501

V. Trompowsky

II. 480

V. Worlich

II. 422

narnet r. Gffermun

L 178

Barnet v. Skinner I. 251

V. Smith I. 273, 282, 283, 285,

301 ; U. 59, 74, 75, 85, 86

Barney ». Bliss 11. 513

V. Earle I. 221

V. Grover I. 244

V. Newcomb I. 170, 297, 298 ;

II. 358, 471

Barnum v. Barnum I. 178, 200

Barnwell v. Mitchell I. 492

Barough v. White I. 265, 268, 376, 379 ;

II. 393, 471, 643

Barr v. Baker I. 209

Barrell v. Benjamin II. 319

Barret v. Evans I. 4S3

i;. Thorndike II. 582

Barrett v. Allen I. 400

V. Barrett II. 354, 446

V. Charleston Bank I. 562, 563

V. Deere II. 209

r. Goddard II. 166

V. Hyde L 213

V. Lewis II. 230

V. Swann I. 128

V. Union M. F. Ins. Co. II. 50

Barreto v. Snowdeu II. 411

Barrick v. Austin I. 228, 256 ; 11 445

Barriere v. Nairac II. 45, 52

Barrington v. Bank of Washington II. 576

Barron v. Howe II. 162

Barrow v. Shields II. 641

V. West II. 387

Barrows v. Lane II. 121

Barry v. Crowley I. 637

T. Morse I. 584 ; II. 25

County V. McGlothlin II. 451

Barstow v. Hiriart I. 472

Bartlctt V. Benson II. 31

V. Emery I. 68

V. Knight II. 323

V. Marshall II. 393

V. Mayo II. 151

V. Smith II. 332

r. Williams 11.411

Barton (•. Baker 1529,561,565

V. Tattershnll II. 629

V. Wilkins II. 504

Biirtrum v. Caddy I. 270 ; II. 219

Bartsch v. Atwatcr II. 349, 359. 364, 165

Bascom r. Young I. 125

INDEX TO CASES CITED.

XXV

Bashford v. Shaw
Baskins v. Wilson
Bass V. Bass
V. Clive

Bassett v. Dodgin

V. Wills
Bateman v. Joseph
V. Finder
Bates V. Kempton

i;. Pricket
Bathe v. Taylor
Battley v. Lewis
Batty V. Carswell

V. Lloyd
Baucum v Streater
Baugli V. Ramsey
Bawden v. Howell
Baxter v. Duren
V. Graves
V. Little
V. Penniman
Bay V. Church

U. 139, U2

n. 38, 467

II. 647

L 321 ; n. 99, 196, 482,

484, 590

I. 186

L 311

I. .527

II. 660

L 179 ; II. 54,

446, 645

IL 9

IL 550, 568, 574

I. 143

L 115; II. 7

II 413

II. 639

II., 507

L 131 ; II. 440

IL 38, 39, 590, 602

L 551

L 262; II. 609

IL 659

I. 643

V. Coddington I. 225; IL43, 268, 275

V. Gunn
V. Tallmadge
Bayard v. Lathy
V. Sliunk

Bayley v. Greenleaf
V. Taber
V. Wynkoop
Baylis V. Ringer
Beach v. Bates
V. King
V. State Bank

V. Vandewater
Beachboard v. Luce
Beadle v. Hunter
Beak v. Beak

Beale ». Parrish (20 N. Y.)
V. Parish (24 Barb.)
Bealey v. Greenslade
Beals V. Peck

V. See
Beaman v. Russell
Bean r. Arnold

P. Briggs

I 74

IL 240

I. 294

IL 89. 103, 105, 157,

159, 163, 193

II. 167

I. 49; II. 89, 514

II. 227

IL 397, 398

II. 141

L 154

L 124, 140, 142,

298; IL 109

L 117

IL 305

II. 640

I. 144

I. 532, 628

I. 628

II 656

L 471, 473, 501, 502

L 150; II. 6

IL 577, 579

I. 579

II. 330

Bean v. Jones I. 246

v. Keen IL 291, 298, 305, 307

V. Morgan I. 85

V. Parker I. 232

Bearce v. Barstow II. 415

Beard v. White U. 506

Buardcsley v. Baldwin I. 39

Beardslcy v. Warner I. 237 ; II. 239,

242, 243, 244, 247

Beattie v. Lett II. 443

Beatty v. Clement II. 662, 663

Beauchamp v. Cash I. 473

V. Mudd II. 645

V. Parry II. 471

Beaumont v. Greathead I. 245 ; II. 217,

318

V. Reeve I. 214

Becher v. Jones II. 399

Beck V. Beck II. 650

V. Roblcy I. 275 ; II. 95, 215, 233

V. Searson II. 640

V. Thompson I. 394, 596, 597, 61 1

Beckett V. Selover II. 645

Beckham v. Drake I. 103

V. Knight I. 103

Beckley v. Munson I. 243

Beckwith v. Angell II. 120, 121, 137, 520

V. Conall I. 258 ; II. 255, 256,

257, 259, 271

V. Farnum IL 41, 157, 163

V. Smith I. 486, 510, 512, 518

V. Union Bank IL 614

Becnel v. Tournillon I. 497

Bedford v. Deakin I. 135, 250 ; II. 154,

234, 246

V. Hickman I. 480

Bedford Com. Ins. Co. v. Covell L 93

Bediiigfield v. Ashley II. 413

Bedo V. Sander.son IL 406

Beebe v. Brooks I. 268

V. Dudley I. 238

V. West Branch Bank II. 242, 244

Beech v. Jones IL 458

Beeching v. Gower I. 440, 479; II. 72,

73, 85, 191

V. Westbrook II 542

Beekman v. Connelly I. 601, 604, 619

V. Wilson IL 455

Beeler v. Young I. 68

Beeley v. Wingfield I. 215

iLxrl

INDEX TO CASES CITED.

Beemun c. Duck I. 321, 322 ; II. 4S2,

590, 591, 593

Beesley v. Crawford II. 606

Beete v. Bidgood II. 406, 525

Beicher v. Lloyd II. 618

V. Smith II. 133, 136

Belden v. Lamb I. 490, 492 ; II. 429

Belknap v. Davis II. 590

Bell V. Banks I. 239

T. Bruen IL 324

p. Carey II. 605

V. Crawford II. 620, 654

i; Davidson II. 460

U.Davis 11617,620

V. Frank is I. 617

V. Gardiner I. 202

r. Hagerstown Bank I. 482, 483, 495

V. Huggins I. 210

V. Moore II. 298, 301

V. Morehead II. 30

V. Morrison II. 649, 651, 657

V. Moss II. 178

V. Norwood II. 220, 456, 460, 488

V. State Bank I. 483

V. Welch IL 131

V. Young II. 298, 304, 305, 307

Bellamy v. Marjoribanks IL 61, 65

Bellasis v. Hester I. 348, 384

Bellemire v. Bank of United States I. 480

Bellicvre v. Bird I. 366, 449, 453

Bellows V. Lovell I. 237 ; II. 240

Belmont v. Coleman II. 494

Bank v. Patterson I. 361

Belshaw v. Bush IL 150, 154, 308

Beltzlioover v. Blackstock 1. 189 ; IL 258,

275, 276

Bemis v. State II. 621

Benedict v. Caffe I. 446, 529, 563, 566

Benham v. Bishop I. 74, 75

r. Mornington IL 334

Benjamin v. Benjamin II. 210

r. McConnell L 243; II.

552, 562

Bennett v. Bcvard II. 628

T. Dowling II. 466, 467

V. Farnell I. 32, 33 ; II. 50, 592

V. Herring IL 639

V. Pound IL 49, 449

V. Williamson II. 633

Bennion v. Davison IL 487

Eennison v. Jewison II. 332

Benoist v. Creditors I. 537, 538, 539, 582

Benson v. RLirshal II. 472

V. Smith I. 208

V. White I. 427, 428

Bent V. Baker II. 465, 469, 471

Benthall v. Judkins II. 124

Bentinck v. Dorrien I. 291, 328, 329, 352

Bentley v. Bradley IL 513

V. Northouse II. 353, 357

Benton v. Gibson I. 378, 381, 382, 383,

520; IL 120

Berghaus v. Alter IL 228

Beikley v. Cannon I. 151

Berksliire Bank v. Jones I. 311, 432, 435,

436,437,580; 11.348

Berly v. Taylor I. 300

Bernard v. Barry II. 334, 499

V. Mullott IL 619

Berrien v. Wright II. 338, 377, 379, 635

Berry v. Alderman I. 189 ; II. 493

V. Bates II. 528

V. Berry II. 565

V. Griffin II. 153, 160, 162

V. Robinson I. 381, 520

V. Wisdom IL 536

Bertrand v. Barkman I. 189, 221, 224, 225

Besancon v. Shirley I. 47

Besant v. Cross II. 522

Best V. Givens I. 72, 75

Bestor v. Phelps II. 484

V. Walker II. 244, 484

BetJiam v. Benson II. 489

Bethunc v. Dozier I. 239

I.-. McCrary I. 191

Betsy & Khoda, The IL 172

Bctts V. Gunn II. 607

V. Mitchell I. 155

Bevan, Ex parte II. 425

». Eldridge L412

V. Hill II. 84

V. Waters II. 491

Bcvcridge v. Burgis 1. 492, 528

Beverley v. Lincoln Gas Light &

Coke Co. L 163

Bibb V. Peyton I. 622, 626

Bickerdike c. Bollman I. 533, 534, 535, 536,
540, 543, .549, 551, 554, 630 ; II. 71, 498
Birkerton r. Burrell I. 118

Bickford J-. Gibbs II. 125, 137

INDEX TO CASES CITED.

XXVii

Bicknall v. Waterman II. 41, 102, 157,

163

Biery v. Haines II. 553

Bigelow V. Collamore II. 24

V. Coltoa II. 123

V. Denison 1. 101

V. Grannis I. 76

Bigg's Case I. 163 ; II. 18, 584

Biggs V. D wight II. 226, 231

V. Lawrence I 321

Bignold, Ex parte I. 447, 610

V. Waterhouse I. 502

Bilbie i;. Lumlcy I. 607

Biles V. Commonwealth II. 586

Bill V. Porter II. 154, 157, 218

Billing (;. Devaux I. 285, 287, 289 ; II. 56

Billings V. Billings II. 507

V. Collins I. 256

U.Hall 11.631

V. Jane II. 48, 449

Billingsley u. Dean II. 414

Billingsly v. Billingsly II. 394

V. Cahoon II. 392

Billiot V. Robinson II. 622

Bingham v. Stanley I. 189 ; II. 283, 487

Binney v. Plumley II. 452

Binnington v. Wallis I. 214

Binstead v. Buck II. 264

Birch V. Tebbutt II. 228

Bircher v. Payne II. 528, 538

Birckhcad v. Brown I. 298; II. 109, 134

Bircleback v. Wilkins I. 228, 256 ; II. 519

Bird V. Adams II. 662

V. Caritat II. 327, 369

V. Gammon II. 652

V. LeBlanc I. 576, 578

V. McCalop I. 483, 498

V. McElvaine I. 303

V. Pierpont II. 361

Bird V. Moreatt II, 330, 332

Birkett's Case II. 584, 586

Birkley v. Presgrave I. 251

Birley ?7. Gladstone 11.169

Birt V. Kershaw II. 467

Bisbing v. Graham 11. 298, 309

Biscoe V. James II. 658

V. Jenkins II. 658

r. State 11.619

V. Stone II. 654

Bishop ?.'. Chambre II. 550, 568, 577

Bishop V. Church I. 25^

V. Dexter I. 381 , 382, 520 ; II. 504

V. Hayward II. 457, 459

V. Rowe I. 329 ; II. 155, 234, 436

V. State II. 588

V. Tucker II. 603

r. Williamson 11.315,316

V. Yeazle II. 244

». Young I. 350

Bissell V. Lewis II. 347

Bizzell V. Stone II. 611

Black V. Peele I. 325

V. Schooler II. 223

V. Smith II. 91

V. Whitall II. 607, 609

V. Zacharie II. 150, 154

Blackl)urn v. Jackson II. 648

Blackburne, Ex parte 11.41, 86, 105, 155,

184, 185, 193

Blackhan v. Dorcn I. 534, 539, 546 ; II.

250

Blackie v. Ridding IL 295, 296, 310

Blackman v. Green I. 21

Bl.ackstone Bank v. Hill L 241 ; II. 222,

225, 226, 230, 241, .533

Blade v. Nolan II, 290, 293, 303

Blair v. Bank of Tennessee I. 229, 310 ;

II. 560, 568

V. Williams II. 510

Blake v. Beaumont I. 309, 425

V. Crowningshield I. 385

V. Lawrence II. 394

V. Peck I. 199

V. Sewell IL 215

T. Wheadon I. 137

V. White I. 241

Blakely v. Grant I. 493 ; IL 53, 135, 485

Blakemore v. Wood II. 513

Blanchard v. Hilliard L 369, 384

V.Russell IL 321, 325, 326,

327, 346, 359, 360, 361, 382

V. Stevens I. 221, 223

V. Wood I. 579

Blanckenhagen v. Blundell I. 34

Blane v. Drummond II. 373

Blaney v. Hendricks I. 393

Blankenshlp v. Rogers I. 537, 547 ; IL 7 1 ,

609
Blanton v. Rice II. 228

Blcaden r. Charles II. 265, 293

XXV m

INDEX TO CASES CITED.

Bleeker v. Hyde II. 134

Blesard v. Hirst I. 337, 601

Blinn v. Chester II. 225

Bliss V. Covington II. 309

V. Houghton II. 333

V. Negus I. 206

Blocker v. Whittenburg II. 375

Blodgett V. Durgiii I. 402

V. Wadhams II. 427, 433

Bloodgood V. Bruen II. 649, 650, 657, 661

V. Hawthorn I. 537, 541

Blount V. Riley II. 472

V. Robeson II. 629

Bloxain r. Sanders II. 165

Bloxsome v. Neale II. 230

Board, Ex parte II. 1 89

Board of Police, &c. v. Covington I. 240

Boardman v. Gore II. 573

r. Paige I. 250 ; II. 253

V. Roger II. 436, 445, 455

??. Smith 11.611

Bobo V. Hansell I. 74

Bock V. Lauman II. 427

Boddington v. Schlcncker II. 65, 69, 72, 85

Bodenham v. Purchas II. 225 229, 230

Bodtrer v. Arch

Bodily V. Bellamy
Bodkins v. Taylor
Boehm v. Campbell
V. Sterling

Boehmc v. Carr
Boeka v. NucUa
Bogert V. Hertcll

V. Vemiilya
Boggs V. Lancaster Bank
Bogy V. Keil
Bois V. Cran field
Bolan V. Williamson
Boliiiger v. Gordon
Bolitho, Kx parte
Bolland v. Bygrave

V. Nosh
Bolics V. Rtc^ams
BoUond's Case
Bolton, Kx jiarte

r. Dugdale

V. Ilarrod

II. 656

II. 394

II. 469

1.58

262, 272, 531 ; II.

57, 58, 59, 79, 84

I. 470

II. 49, 449

I. 156, 159

II. 657, 658

11.43

V. Puller

I. 530, 5.56
II. 223
11.315
II. 606
I. 131
I. 199
II. 613
II. 4, 584
II. 585
I. 299
I. 38
I. 342,345; II. 437,
454
II. 43

Bolton V. Reichard (1 Esp.) II. 155

r. Richard (6 T. R.) II. 99, 1 55, 195
Bomley v, Frazier II. 372

Bonaffe r. Woodberry II. 222

Bonar v. Macdonald I. 239

Bonaud v. Sorrel II. 605

Bonbonus, Ex parte I. 125

Bond V. Bragg II. 499

V. Central Bank I. 221

V. Farnham I. 446, 528, 537, 561,
563, 565, 566, 568
V. Fitzpatrick I. 275 ; II. 44, 472,
604
V. Jones II. 228

T. Kent II. 167

V. Morley II. 503

V. Storrs I. 236, 238, 310 ; II. 456
Bondurant v. Commercial Bank II. 434
V. Everett I. 483, 497

Bonncy v. Seely I. 243, 244

Boody V. McKenney II. 512

V. United States II. 223

Boon V. Murphy 11. 168

Boone v. Poindexter II. 416

Boot V. Franklin I. 350, 440

Booth V. Grove II. 480

V. Jacobs I. 617

V. Smith II. 160, 162

V. Wallace I. 29

Bordelon v. Weymouth II. 87

Rorncman v. Sidlinger I. 54, 446

Borough V. Perkins I. 642 , II. 329

Borradaile v. Lowe I. 596, 599

Bosanquet v. Anderson II. 479, 483,

485, 486, 590, 595
V. Corser I. 193

r. Dudman L 199; IL 230,
455
V. Forster I. 193

V. Wray II. 224, 225, 228

Bosler r>. Exchange Bank 11.611

Bosley v. Porter II. 222

Bossangc r. Ross II. 427

Bossard v. White II. 640

Boston, The II. 173

Boston Bank v. Hodges I. 369. 370,

411, 414, 419
Boston II. M. Co. r. Mcssingcr I. 239
Bosiwick r. Dodge • I. 2'?l

Boswell V. Clarksons II 434

INDEX TO CASES CITED.

XXIX

Bos well V. Smith
Bottomley v. Wilson
Bouclicll V. Clary
Boucher v. Lawson
Boulagcr v. Talleyrand
Bouldin v. Page

n. 83

II. 466
I. 70

n. 321,330
I. .537
II. 372

Boukbee v. Siuhbs I. 528 ; II. 240, 248

Boulton V. Welsh I. 468, 469

Boulware v. The Bank II. 564

Bourg V. Bringier II. 467

Boutell V. Cowdin I. 177, 202

Boutwell i;. Mason II. 223

Bovill V. Wood I. 247

Bowditch V. Green I. 246

Bowdre v. Hampton II. 657

Bowen v. Doggett I. 217

». Hale 11.619

V. Mead I. 128

V. Newell I. 399, 400 ; II. 67, 68,

69, 70, 336. 344

V. Stoddard I. 116, 650

Bower v. Tiermann I. 239

Bowerbank v. Monteiro I. 301, 302 ; II.

145, 503, 536, 539

Bowers v. Hurd I. 177, 179 ; II. 55

V. Jewell n. 565, 570, 577

Bowes V. Howe I. 307, 446, 528 ; II.

98, 192

Bowie V. Duvall 1. 310, 358 ; II. 442, 455

Bowker v. Harris II. 651

Bowles V. Elmore II. 643

V. Newby I. 206

Bowling V. Harrison I. 483

Bowman v. Downer II. 654

V. Nichol II. 568

V. Smith II. 286, 298

V. Wood n. 437, 444, 445

Bowne v. Hyde II. 466

V. Joy n. 390

Bowness, Ex parte 11. 82

Bowser v. Bliss II. 535

Box's Case I 35

Boxley v. Gayle 11. 652

Boyce v. Edwards I. 294, 298 ; II. 325,

341, 372,376

■- Warburton 11.399

Boyd V. Brotherson II 569

V. Cleveland I. 585, 593 ; II. 516

V. Cummings I. 226

r Emmerson II. 69, 77

Boyd V. Hitchcock
V. McCann
V. McConnell
r. Mclvor
V. Plumb
Boydell v. Ilarkness
Boyle V. Arledge
V. Skinner
V. Zacharie
Boylston v. Greene
Boynton v. Dyer
Bo/.eman v. State Bank
Brabston v. Gibson
Braekenridge v. Baltzell
T. Baxton
Brackett v. Mountfort

V. Norton
Bradford v. Bucknam
V. Cooper
V. Corey
V. Farrand
T. Hubbard
V. Spyker
Bradlee v. Boston Glass Co.
Bradley v. Anderson
V. Bardsley
V. Bentley I

V. Cary
V. Davis

IT. 158, 15P

I. 261

II. 574

I. 188; II. 493

I. 140, 233

I. 426

II. 305, 634

I. 132

II. 326, 363

II. 215

II. 426

I. 247

I. 309, 325, 356

II. 647

V. Delaplaine

V. Field

V. Hunt

V. Long

V. Pratt

V. Root

V. Trammel

V. Phelps
Bradshaw v. Davis
Brady v. Hill
Bragg V. Greenleaf
Braham v. Bubb

V. Ragland
Brailsford v. James

V. Williams
Brainard v. Buck
Braithwaite v. Gardiner
Brake v. Corning
Bramah v. Roberts
Braman v. Hess

11.373

II. 554

11. 318

II. 443

II. 396

I. 579

II. 360

I. 241 ; 11.239,251

II. 647, 660

I. 98,100
II. 507
II. 580

51 ; II. 522
II. 140
I. 473, 484, 494, 496,
635 ; n. 495
I. 273 ; II. 68
n. 649

II. 89, 92
II. 294, 301,306

1.70

I. 335

II. 48, 449

II. 520

II. 622

n. 224, 225

n. 444

1.43

I. 507

II. 651

I. 482, 504

II. 649

I. 321

11. 605

I. 140

II. 414, 428

JLXK

INDEX TO CASES CITED.

Branch Bank of Montgomery v. Gaffney

I. 268, 359, 372, 378, 382
V. Hodges I. 366

T. James I. 235

V. Peirce I. 493

of Alabama v. Windham

n. 644 '

at Mobile v. Tillman II.

291, 294, 297, 301

Brandao r. Barnctt 11.114

Brander v. Phillipp II. 232

Brandon v. Nesbitt 11. 8

Brandram v. Wharton II. 656, 661

Brandt v. Foster II. 286

Brannin v. Henderson I. 283

Brannock v. Bushinell II. 654

Brard v. Ackerman II. 469

Bray v. Bates II. 173, 174

V. Hadwen I.- 504, 5 1 4, 5 1 5

Braynard v. Fishei II. 604

V. Marshall 11. 325, 342, 376

Brazier v. Bryant II. 225

Breed v. Cook 11. 152, 156, 183

r. Hillhouse 1.596,621,623;

n. 127

V. Judd I. 67

Brembridge v. Osborne II. 220

Brent r. Cook 11. 641

V. Ervin II. 298, S04

Brenzer v. Wightman I. 268, 377, 519

Brett V. Levett I. 596, 618

V. Marsh II. 222

V. Marston II. 118

Brewer v. Branch Bank II. 177

V. Brewer I. 25; II. 651

V. Knapp II. 225

Brewster v. Arnold I. 466, 471, 477

r. Bours II. 1.53, 161

v. Dana II. 519

r. Hardeman II. 658

V. Hobart I. 105

V. McCardel I. 387 ; II. 27

r. Silence 1.44; II. 119,129, 130

T. Wakefield II. 396

Brcyfoglc v. Bccklcy II. 393

Brian v. Tims II. 635

Bridge r. Gray II. 481

r. Ilal.bard 11.418,420

V. Johnson II. 604

Bridgcr v. Heath II. 257, 272

Bridges V. Beny

329

n. 181

Bridgman v. Dean

I. 196

Briggs V. Briggs

II. 609

V. Lapham

II. 542

V. Moore

II. 606

v. Williams

II.

227, 228

T. Wilson

645,

656, 660

Brigham v. Bigelow

II.

381, 384

V. Giirney

437, 443

V. Hutchins

II. 660

V. Peters I

; U.

476, 490

V. Wentworth

I. 239

Bright v. Hand

I. 247

V. Furrier I.

350

351

; II. 463

Brighton Market Bank v

Philbric

k L492

Brigstocke v. Smith

II. 651

Brill V. Crick

II.

.542, 578

Brinagar v. Phillips

L 240

Brind v. Bacon

II. 467

V. Hampshire

L 49

Brindlcy v. Barr

482, 487

Brinkloy v. Going I. 358

; II.

220, 442

Briscoe V. Anketell

II. 631

Bristol V. Sprague

L 148

V. Warner

L 228

Bristow V. Sequeville

n. 330

British Linen Co. v. Drnmmond

II. 326,

383, 384

Brittain r. Johnson

I. 507

Britten v. Webb

457, 459

Broadiicad v. Noyes

320, 327

Brock V. Jones

II. 623

V. Thompson

378,

379, 383,

519

; II. 428

Brockway r. Allen

94, 96, 97, 169

Broddie v. Johnson

II. 650

V. Searcy

1.396

Brodie v. Howard

IL 180

Brody v. Doherty

652, 655

Bromage v. Lloyd

I. 48, 1

59 ; II. 5

V. Vaughan

474, 476

Bromwich v. Loyd

L 11

Bronangh v. Scott

IL 244

Brook V. Smith

388, 390

r. Wentworth

IL 165

Brookes v. Chcsley

n. 661

Brookliard v. Woodlcy

11.477

Brooklyn Bank v. Waring

I. 596

Brooks V. Elkins

I. 21 , 2.1

V. Floyd

n. 410

INDEX TO CASES CITED.

XXXi

Brooks V. Mitchell I. 265, 271, 376, 379 ;
II. 79, 643
V. Stuart I. 247 ; II. 237, 508

V. White I. 245

Broom v. Batchelor II. 131

Broomhead, In re II. 632

Brougiiton v. Fuller II. 560, 565

V. Manchester & S. Water-
Works Co. I. 164, 166
V. West II. 559

Brower v. Peabody II. 116

Brown, Ex parte I. 252 ; II. 5

In re 1.271,273,547,552,553;
II. 56, 57, 59, 67, 68, 69, 71,
72, 74, 75, 78, 84, 250
V. Bebee II. 515

V. Brown II. 54, 446

V. Butchers', &c. Bank I. 22, 23,
11.16
r. Byers II. 478

V. Clark I. 145 ; II. 437

V. Collins II. 364

r. Curtiss I. 44 ; II. 132, 138

V. Davies I. 261, 275, 376 ; II. 59,
604
». DeWinton 1.18,20

V. Durbin II. 96

V. Edes II. 639

r. Ferguson I. 57, 510, 514, 642
V. Gilman 1.33; II. 168

V. Gracey II. 334

r. Harraden I. 373, 391, 392

r. Harrison 11.407,410

V. Hill II. 645

V. Hull II. 508

V. Hutchins II. 663

V. Jodrell (3 C. &P.) I. 149, 150
V. Jones n. 549, 580

V. Keach II. 651

V. Kewley II. 41, 85, 105,

155, 159
V. Langley II. 508, 536

V. Leavitt II. 645

». Lull 11.172

V. Lusk I. 552, 555, 601 ; II. 59,
67, 68, 69, 70, 71
V. Maffey I. 538, 539, 556 ; 11.498
r. Maine Bank II. 51

V. Marsh I. 248

V. Merrick II. 646

Brown v. Messiter

IL 296, 309

V. Mott I. 184,

191 ; n. 27, 250

V. Nevitt

n. 406

V. Newell

L 400

v. Noyes

L 309

V. Philpot

L 188; IL493

V. Pinkham

IL 544, 582

V. Richardson

n. 320

V. Rivers

IL 218

V. Saul

IL 91, 189, 6^:0

V. State Bank

IL 64 9

V. Stewart

IL 630

V. Taber

IL 28, 29, 275

V. Turner

L 362, 510

V. Van Braum

L 654

V. Wakefield

IL 655

V. Waters

n. 406, 419, 420

Browne v. Carr

IL 240, 247

V. Coit

L 302, 305

V. Joddrell (Moody & M.) II. 6

V. Lee

IL 254

V. Murray

L186

v. Robinson

IL 608

Brownell v. Bonney

L 614, 618

Browning v. Kinnear

L 527

Bruce v. Bruce II. 37, 38, 589, 600, 601

V. Flagg n. 634

». Lytle 1.446,450,529,563,571,

574, 57.5, 582, 586, 596, 621, 626

V. Westcott I. 276 ; II. 562, 563,

565

Brunson v. Napier I. 570

Brush V. Scribner I. 221 ; IL 43, 278

Brutt V. Picard 11. 570

Bryan v. Berry I. 233, 238

V. Ware IL 640

V. Weems II. 645

Biyant v. Christie I. 216

V. Clifford IL 605, 607

v. Damariscotta Bank II. 88

V. Eastman I. 172; IL 17

V. Edson L 399 ; IL 333, 336, 351

V. Ritterbush
V. Smith
Bryden v. Brydcn
V. Taylor
Bubier v. Pulsifer
Buchanan v. Bordley
V. Findlay
V. Marshall

II. 95, 467, 470

IL 237

L 508

I. 634, 635

n. 420, 469, 470

L 237

11.27

L 580 ; II. 343

XXXll

INDEX TO CASES CITED.

Bucher v. Jarratt 11. 292

Buck V. Appleton I. 393 ; II. 470, 521,

556, 565

V. Cotton I. 529, 533, 556

V. Kent II. 293

Buckingham v. McLean II. 433

r. Smith 11.651

Buckland c Tankard II. 467,471

Buckler v. Buttivant I. 199

r. Moor II. 155

Buckley, Ex parte. In re Clarke 1. 130, 247

V. Barber I. 144

V. Beardslee II. 1 28

r. Guildbank 11.412

Bucklin v. Ford II. 636, 642, 645

Buckmaster v. Meiklejohn II. 619

Bucknam r. Thompson II. 634

Buckner v. Calcote II. 640

V. Finley I. 57, 642 ; 11. 322, 323,

324

V. Greenwood II. 35

V. Lee L 132, 133

V. Real Estate Bank II. 448

V. Tljompson II. 616

Buddington v. Stewart II. 170

Bueli ». Shethar IL 361

Buffington v. Gerrish II. 207

Buffum V. Chadwick II. 449

V. Deane II. 618

Bulger V. Roche II. 318, 321 , 383

Bulkelcy r. Butler II. 480, 481

Bull V. Allen I. 235, 237

r. Bliss 11.119

BullardT). Bell IL 189

V. Dorsey II. 609

V. Randall II. 59, 61

V. Wilson II. 453, 496

BuUen v. McGillicuddy IL 160, 218

Bailer r. Crips L 10, 11, 12 ; II. 328

Bullet V. Bank of Pa. L 231 ; IL 100,298,

312

Bulloch V. Smith 11. 651, 652

Bullock V. Campbell II. 638

V. Dunbar II. 609

V. Lloyd II. 487

r. Ogbum I. 202

Bullpin V. Clarke L 79

Bull V. Morrcll I. 140

Buingardner v. Taylor II. 662

BuMipnss V. Timms I. 49, 276, 337

Bunker v. Alheam
Buimell V. Butler
Bunney v. Poyntz
Burliank v. Beach

n. 659

IL 617
IL 166
I. 646

Burbridge v. Manners I. 417, 516 ; II. 215

Burchell v. Slocock I. 227

Burchtield v. Moore II. 548

Burckmycr v. VVhitcford I. 515

Burden v. Halton IL 151, 308, 436, 443

Burdick v. Green IL 160, 365, 439

Burdon v. Benton I. 199

Burge «. Dishman 11.510,530

Burgess v. Chapin II. 41, 157, 163

V. Cuttill IL 466

V. Merrill I. 77 ; II. 458

V. Vreeland L 471, 472, 511, 512,

518

Burgh V. Legge I. 587, 592, 614, 629

Burgwin v. Bal)cock II. 609

Burk V. Howard II. 661

Burke's Case (6 Ves.) II. 248

Burke's Case (Russ. & R.) II. 584

Burke ». Allen L 71, 151 ; IL 6

V. Clarke II. 179

V. Cruger I. 235, 245

V. Jones II. 629

V. McKay L 506, 633, 642, 643,

645

Burkett v. Moses II. 603

Burkitt V. Ransom I. 195

Burleigh v. Stott IL 658, 659, 660

Burlington County Bank v. Miller II. 80

Burmester v. Barron I. 486, 490

Burn V. Boulton II. 653, 654

V. Burn I. 251

V. Carvalho I. 336

V. Morris II. 264, 266, 267

V. Poaug L 237 ; II. 246

Burnell v. Minot I. 250

Burnet v. Bryan II. 644, 645

Burnham v. Allen I. 28, 375 ; IL 493, 494

V. Ay re II. 568, 577

V. Gallentino II. 118

V. Webster I. 255, 579. 580 ;

IL 9

V. Wood L 255; II. 910

Burnley v. Sharp II. 641

Burns v. Hill IL 606

v. Tallon IT. 286

i;. Tavlor II. 167

INDEX TO CASES CITED.

XXXlll

Burr V. Burr II. 649, 651

V. Smith II. 216

Bunall V. Rice II. 364

Burridge v. Geauga Bank II. 93, 286, 305,

306

V Manners I. 230; II. 213

Burrill v. Smith I. 366, 444 ; II. 239, 589

Burrough v. Moss I. 88 ; II 446, 447,

604, 615

Burroughs v. Bloomer II. 636

Burrows v. Hanneganl. 442, 455, 571,595

V. Jemino I. 328 ; II. 319, 342,

376

II. 565

11.141

II. 661

11.413, 414

II. 359, 360, 363

II. 306, 453

I. 147

II. 84, 292

II. 577

1.12

II. 648

II. 648, 649

11.36

11.412

II. 649

1.427

II. 415, 431

I. 221 ; II. 45, 493

II. 372

1.401, 478, 515;

II. 492

II. 246

1.413 ; 11.462

II. 443

V. Stoddard
Burt V. Horner
V. Palmer
Burton's Case
Burton, Ex parte
v. Dees
r. Issitt
r. Payne
V. Pressly
V. Souter
V. Stevens
V. Wharton
Bury V. Hartrnan
Busby V. Finn
Bush V. Barnard
V. Kinnear
V. Livingston
V. Peckard
Bushby v. Camac
Bussard v. Levering

Bynncr v. Russell

1410

Bynum v. Rogers

II. 428

By ram v. Hunter

I. 595, .^97

Byrd v. Bertrand

II 48;

V. Byrd

II. 646

Byrom v. Thompson

II. 577

Butler V. Hamilton
V. Kimball
v. Robertson
v. State
V. Stocking
V. Winters
V. Wright
Butterfield v. Jacobs
V. Kidder
V. Kinzie
Butterworth v. Despencer

V. Peck
Button V. Downham
Butts V. Dean
Buxton V. Jones
Buzzell V. Snell
Vol. I.— a

I. 588

L 140, 142

II. 638, 649

IL 495

IL 649, 652

IL 417,525

L310

I. 427, 428

IL 60

IL 413

IL 151, 152, 163

L 366, 457

II. 376

Cabot V. Given II. 478, 485

Bank v. Morton IL 37, 186, 187

• 485, 486, 590, 60(!

V. Russell I. 49 7

Cady V. Commonwealth II. 588

Cain V. Spann I. 255

Calder v. Billington II. 53

Caldwell v. Cassidy L 309, 310, 430 ;

II. 88, 98

V. Ferrill II. 648

V. May II. 524

V. Rodman II. 643

V. Sigourney II. 658

V. Stileman I. 144

V. Wcntworth II. 226, 228

Calhoun v. Davis II. 509

Calisto, The IL 170

Call V. Lothrop II. 621

V. Scott II. 414

Callaghan v. Aylett I. 307

Callow V. Lawrence II. 219, 233. 568

Calton V. Bragg II. 395

Calvert v. Baker II 580

Camden v. Doremus II. 141, 142

V. McKoy IL 120, 125, 519

Came v. Brigham I. 164

Cameron v. Smith II. 394, 395, 396, 397

Cauiidge ». AUenby II. 41, 71, 94, 97, 103,

:05, 156, 158, 181, 182, 183, 184, 191

Cammack v. Griffin II. 162

Cammer v. Harrison I. 375, 407

Camp V. Bates II. 424

V. Lock wood II. 318

V. Scott I. 264

V. Tompkins I. 50

V. Walker II. 472

Catnparree v. Brockway II. 121

Campbell v. Brown I. 248

r. Butler IL 120

kXXlV

INDEX TO CASES CITED.

Campbell v. Carman I. 268

V. Hays II. 616

T. Hodgson II. 225, 506

V. Humphries II. 220, 455

T. Knapp II. 125

V. Mississippi Union Bank

II. 107

V. Pettengill I. 303, 543, 545

r. Bead 11.431

V. Tousey II. 374

V. Upshaw II. 513

7). Webster 1.614,616

Can V. Read 11. 82, 83

Canal Bank v. Bank of Albany I. 275, 320,

321, 322; II. 38, 284, 483, 485, 590,

596, 599

Canfield v. Gibson II. 9

r. Ives I. 246

V. Vaughan II, 136

Cannam v. Farmer I. 78

Cannan v. Bryce ^ I. 214

Cannon v. Beggs II. 393

Cape Fear Bank v. Stinemetz I. 57

Capen v. Alden II. 228, 230

Capp V. Lancaster II. 643

Capper ?7. Spottiswoode 11.167

Capron v. Johnson II. 364

Carey v. Greene II. 107

V. McDougald I. 26

V. Pitt II. 476

Cargo of the Ship Anna Kimball II. 169

Cariss v. Tattersall II. 563, 577

Carlan v. Ireland II. 65

Carlcy v. Vance I. 309, 432

Carlisle v. Davis II. 301

V. Hill II. 427

V. Morris II. 655

V. Rich I. 244

V. Wishart I. 221

Carll (). Brown I. 264

r. ILirt II.6J58

Carlon v. Ireland II. 586

v. Kenealy I. 374, 407

Carlos V. Fancourt I. 45

Carlton v. Bailey I. 264, 377

Carlton v. Ludlow Woollen Mill II. 657,

658, 660
Carman v. Garrison IF. 608

Carmi( Iiael r. Bank of Pa. I. 337, 348,

591, 641

Carne v. Legh I. 252

Carneal v. Thompson H. 635

Carnegie v. Morrison 1. 249, 291. 294, 296 ;

IL 62, 109, 134, 318, 321, 338

Carpenter v. King I. 235, 246

V. Oaks IL 121

v. Wells II. 635

Can- V. Carr II. 61

V. Eastabrooke II. 236

V. Howard I. 237

V. LcFevre II. 33, 115, 116

V. Rowland IL 120, 125

V. Shaw II. 353, 355

V. Stephens II. 536

Carriere r. Ticknor 11.617

Carroll v. Upton I. 490, 492

V. Van Rensselaer II. 167

V. Waters II. 179

V. Weld IL 120, 121, 519

Carroll ton Bank v. Tayleur I. 294, 298

Carroway v. Cox II. 461

Carruth v. Paige II. 650

Carruthers v. West II. 29

Carshore v. Huyck ' II. 6C1

Carson v. Bank of Alabama I. 483

V. State Bank I. 490 ; II. 490

Carstairs, Ex parte I. 241 ; II. 248

V. Rolleston I. 326 ; IL 249

V. Stein IL 407, 410

Carter v. Bennett II. 629

V. Bradley I. 475, 476, 499

V. Burley L 57, 511, 513. 514, 517,

595, 601, 620, 621, 622, 634,

635, 640, 642, 643, ; IL 325,

329, 497, 499

T. Carter I. 251

V. Cross II. 649

V. Flower I. 266, 344, 534, 550,

554, 557, 560, 575 ; II. 72

V. Hamilton II. 506

V. James II. 487

V. Smith I. 309

V. Union Bank I. 495, 640, 04 1 , 642

r. Vaulx II. 301

Carteret v. Paschal II. 45

Carticr v. Page II. 381

Cartwright r. Cooko II. 217

V. Gardner II. 448

V. Williams il. 28, 32

Caruth r. Thompson I. 279

INDEX TO CASES CITED.

XXX''

Can'er v. "Warren
Carvick v. Vickery
Gary v. Campbell

V. Gerrish
Casborne v. Dutton
Casco, The Brig
Case V. Heffner

1.37; n. 118

I. 321 ; II. 4, 477

II. 305

II. 84

I. 24, 25

II. 170

I. 660

V. Morris I. 534, 537, 552 ; II. 71
V. Spalding II. 519

Cash V. Kennion I. 664 ; II. 370, 376

V. Taylor I. 92, 101

Cassel V. Dows II. 564

Castle V. Candee I. 377 ; II. 122, 139, 519
Castrique v. Bernabo I. 412, 417 ;

II. 462

Cathell V. Goodwin I. 89, 443, 537, 538,

549; II. 71

Catherwood v. Chabaud I. 156, 157 ;

II. 446

Catlin V. Gunter II. 414, 427

T. Hansen I. 189

V. Lyman II. 424

V. Marsh II. 424

Caton V. Shaw II. 409, 434

Cator's Case II. 477

Catskill Bank v. Messenger I. 248

V. Stall L 125, 497

Catton V. Simpson II. 557

Caunt V. Thompson I. 364, 471, 477,

526, 629

Cave V. Hall II. 154

V. Webb II. 607

Cawley v. Furnell II. 650, 651

Cayuga Co. Bank v. Bennett I. 482,

501, 502

V. Dill I. 593

V. Hunt I. 362, 418,

420, 421, 636, 644 ; II. 433

V. Warden I. 471,

473, 475, 476, 477 ; II. 348

Cecil V. Mix II. 120

Central Bank v. Allen I. 393, 404, 438,

451 ; II. 491

V. Curtis II. 454

o. Davis I. 369, 610

V. Willard n. 242, 531,

538, 539, 540, 541

of Brooklyn v. Lang II. 449

Certain Logs of Mahogany U. 169

Chadbourn v. Watts 11. 418, 420

Chadwick v. Allen I. 24, 31

V. Jeffers L 378, 382, 383, 520

Chalmers v. Harris II. 38

V. Lanion XI. 604

Chamberlain v. Gorham II. 290, 298, 305

V. Hopps I. 48

V. Townsend II. 427

Cliamberlyn v. Dclarive I. 337 ; H. 154

Chambers v. Games II. 619

V. Garland II. 628, 649, 650

V. Hunt II. 287

V. McDowell II. 160

V. Marks II. 647

V. Walker II. 663

Champant v. Ranelagh II. 324

Champion v. Griffith II. 121

V. Terry IL 151, 154, 294,

295, 296, 307

Champlin v. Butler II. 235

Chancy v. Baldwin IL 302

Chander v. Sterling I. 508

Chandler v. Herrick II. 532

V. Lawrence II. 478, 662

V. Marsh I. 210

V. Mason I. 444, 559 ; II. 469

V. Morton II. 469

V. Parkes I. 77

Chaney v. Baldwin IL 298, 299

Channell ». Ditchburn II. 659

Chanoine v. Fowler I. 504, 634

Chapcott I'. Curlewis I. 490

Chaplin v. Levy IL 286

Chapman v. Annett I. 615

». Black L 217; IL 418,

420, 431

V. Durant IL 151

V. Eddy I. 204

V. Hiden II. 466

V. Keane L 503, 504

V. Lipscombe I. 478, 491 ;

IL 492

V. Robertson II. 319, 337,

338, 376, 380

V. Schroeder IL 629

V. Steinmetz II. 171

V. Tanner II. 166

r. White L 290; IL 59,60, 61

Chappel, Ex parte I. 500

Chappell V. Spencer II. 556, 558

Chappie V. Durston II. 631

XXXV]

INDEX TO CASES CITED.

Charles v. Marsden I. 326; II. 29

Charlotte, Steamboat, v. Hammond

II. 154, 160, 162, 176, 218

Charlotte, Steamboat, v. Lumm II. 151

Chard v. Fox I. 471

Chamley v Dulles I. 26

W.Grundy 11.288,289,310,311

Charrington v. Miiner II. 467

Chartres v. Cairnes II. 318, 338, 375

Chaser. Kendall I. 148

V. Redding II. 54

V. Strain II. 615

V. Taylor I. 634 ; II. 497

V. Westmore II. 165

V. Weston I. 210

Chastain ». Johnson II. 154, 161, 205, 218

Chat V. Edgar I. 11

Chaters v. Bell I. 643, 644 ;. II. 485

Chatfield v. Paxton I. 607, 608

Chaudron v. Hunt II. 290, 291, 293,

295, 297, 298, 309

Chautauque Bank v. Davis I. 358 ; II. 442

Chazournes v. Edwards I. 126, 128, 132

Cheap V. Harley II. 212

Cheek v. Roper I. 349

Cheetham v. "Ward I. 162, 247, 248;

II. 237
Cheever v. Smith II. 179

Chenot r. Lefevre II. 381, 592

Chenowith v. Chamberlin I. 57, 140,

641, 642

Cheshire v. Barrett I. 67, 73, 75

Ciiesley v. Frost II. 576

Chesraer v. Noyes I. 635 ; II. 497

Chesterfield v. Janssen II. 406, 413

Chcttle j;. Pound II. 577

Chevalier v. Lynch II. 387, 390

Chcvaliier v. Buford I. 47

V. Durst II. 646

V. State II. 619

Chew V. Bank of Baltimore I. 89

Chewning v. Gatcwood I. 470

V. Singleton II. 297, 305

Chick r. Pillsbury I. 510, 511, 512

V. Trevctt I. 98

Chicopec Bank r. Eager I. 483

V. Chapin I. 191, 221,

223; II. 44

Childers v. Boulnois I. 25

V. Deane II. 412, 423

Childreis r. Stuart I. 46

Child V. McKean II. 493

Childs V. Barnum II. 126

V. Monins I. 161, 195, 198; II. 6
V. Wyman II. 121, 122, 125

Chiilingworth v. Chillingworth II. 413

I. 241

II. 214, 487

394, 395, 396

II. 410

II. 586

II. 541

II. 222, 225

II. .539

II. 632

I. 244
I. 85

I. 489, 495, 498

I. 130

II. 643

I. 289

II. 169
I. 501

II. 634

Chilton V. Bobbins
V. Whiffin
Chinn v. Hamilton II.
Chippindale v. Thurston
Chisholm's Case
Chittenden v. Ensign
Chitty V. Naish
Cholmeley v. Darley
Chouteau v. Burlando
V. Jones
V. Merry
V. Webster
Christie, Ex parte

V. Fonsick*
V. Pearl
77. Lewis
Christmas v. Fluker
Christophers v. Garr
Church V. Barlow I. 229, 326, 515 ; II. 250
r. Clark L 411, 414, 419 ; IL 461
V. Flowers II. 298, 309

t'. Imperial Gas Light & Coke

Co. I. 163

V. Tomlinson H. 420

Churchill v. Sutcr IL 418, 426, 468

Chusan, Bark IL 171, 175, 180, 365

Chute V. I'attce I. 239, 241 ; II. 135

Citliens' Bank v. Walker I. 498

City Bank v. Cutter I. 369, 370, 399, 402,

40.3, 411, 643; IL 213,462

of New Orleans v. Girard

Bank I. 651

Clampitt V. Newport I. 156

Clap V. Day II. 449

Clapp V. County of Cedar IL 33, 35

r. Hanson 11.415,469

V. Ingcrsol II. 662

r. Rice IL 123

Ciarcmont Bank v. Wood I. 235 ; II. 2.50

Claridgc v. Dalton I. 534, 535, 538, 540 ;

IL 241, 242, 250, 498

». Klctt II. 620

Clark, Ex parte IL 233

V. Alexander II. 397, 653, 657, 058

INDEX TO CASES CITED.

XXXVII

Clark V. Atkinson
V. Badgley
V. Baker
V. Boyd

n. 654, 662

II. 417

II. 489

I. 48, 160

V. Coinmonwciilth II. 588

V. Devlin II. 239, 240, 242,

243, 249

V. Draper II. 165

V. Eckstein II. 577

V. Eldridge I. 471

V. Ely I. 222, 224

V. Farmers' Manuf. Co. I. 26 ;

11.35

V. Hill I. 238, 242

V. Hooper II. 656, 662

». Jones II. 637

V. Loomis I. 276 ; II. 427

17. Merriam II. 120, 121, 124,

137, 139

V. Minton I. 447, 530

r. MuUenix II. 623

V. Miindal II. 154

V. Reed II. 301

r. Ricker 1.196,215,279

V. Rogers II 577

V. Russel I. 198

V. Sigourney I. 48, 50, 159 ; II.

656, 657

V. Sisson II. 427

V. Stackhouse II. 73

W.Young II. 153, 155,348

Clarke, In the Matter of I. 247

V. Adair I. 333, 335

V. Clement II. 234

r. Cock 1.281,285,287,293

V. Cross II. 637

V. Cuckfield Union I. 163

V. Dutcher II. 651

r. Gordon 1.310,312

V. Hawkins 11. 614

V. Jenkins II. 659

V. Johnson II. 266

V. Marriott II. 642

V. Percival I. 38, 43

V. Quince 11. 293, 309

». Sharpe I. 486

v.Shee 11.110,266,267,280

V. State II. 586

V. Wilson II. 247

Clarkson v. Garland 11. 406, 416

Clason I'. Bailej I. 22, 37

Clavey v. Dolbin I. 284

Clawson v. Gustin II. 567

Claxton V. Swift II. 25, 232, 247, 457

Clay r. Cottrell I. 124, 126,275

r. Crowe 11.289,291,292,295,

296

V. Hopkins I. 660

V. Oakley I. 482, 500

V. Smith II. 363

Clayton's Case II. 225, 230, 413

Clayton v. Gosling I. 39, 194 ; II. 644

V. Piiipps I. 622

Clcavcland ». Stewart I. 169; II. 518

Clegg, Ex parte II. 613

V. Cotton I. 528, 533, 534

V.Levy II. 318, .330

Clement v. Leverett I. 225 ; II. 43

V. Reppard I. 178

Clements v. Brown II. 634

Clerk V. Blackstock I. 251 ; II. 557,

560

V. Mundall II. 41, 156

Gierke v. Martin I. 12

Clermont v. Tullidge II. 476

Cleve V. Jones II. 653

V. Mills II. 387, 390

Cleveland v. Covington I. 243

V. Loder II. 409

V. Worrell II. 290, 304

Clifford V. Parker II. 550, 573, 577,

578, 579

Cline V. Miller I. 207

Clinton Bank v. Ayres II. 444

Clippinger v. Creps I. 241 ; II. 245

V. Hepbaugh I. 214

Clode V. Bayley I. 515

Clopper V. Union Bank I. 229, 326, 537,

558; II. 250

Closson V. Stearns I. 22; II. 16

Clough V. Bond II. 83

V. Clough II. 624

V. Davis I. 49

Clouston V. Barbiere II. 121

Clugas V. Penaluna II. 321, 330

Clute V. Small I. 276 ; II. 563, 570, 573

Cobb V. Little II. 252

V. O'Neal II. 502

j;. Page 1.199

V. Titus n. 428, 429

xxxirri

INDEX TO CASES CITED.

Coburn v. Kerswell II. 152, 153, 177

Cochituate Bank r. Colt II. 94

Cock V. Coxwell 11. 550

V. Fellows I. 31

V. Taylor 11. 169

Cocke V. Bank of Tenn. I. 502

V. Branch Bank I. 138

V. Chancy II. 160

V. The Commonwealth I. 584

V. Dickens 11. 450

Cockell V. Bridgeman 11. 297, 306

V. Gray I. 384

Cockerell v. Barber II. 369

Cockrill V. Hobson II. 643

V. Ivirkpatrick II. 507

Cocks, Ex parte II. 397

V. Masterman I. 319, 516 ; II. 81,

284, 596, 598

v. Nash I. 249 ; II. 237

Cockshott V. Bennett I. 2 1 6

Coco v. Lacour II. 205

Coddington v. Bay II. 43, 268, 493

Davis I. 563, 575, 578,

582, 643, 647

Codman v. Lubbock II. 91

Codwise v. Gleason II. 502

Coggill V. American Bank I. 322 ; II. 80,

212, 483, 590, 591

Cohea v. Hunt I. 419, 435

Cohen V. Morgan II. 257

Colbert v. Daniel II. 629

Coiburn v. Averiir II. 124, 125, 658

Colby r. Colby 11.611

Coldrcn v. Miller II. 96

Cole V. Blake II. 625

V. Gushing II. 19, 94, 251

T. Hundley II. 507

V. Lockhart II. 421

r. Kunnells II. 646

V. Sackett II. 152, 159, 202

V. Scot II. 167

V. ThruU II. 230

Colciian V. Cooke I. 40

Coleman v. Bicdcman II. 453

V. Carpenter I. 515

r. Ewing 1.411

V. Fobes II. 658

V. Saycr I. 384, 391, 404

V. Smith I. 639

V. Wolcott II. 305

Colerick r. McCleas

L237

Coles V. Bell

II. 209

V. Jones

11.45

Colkett V. Freeman

415, 416

Collamer v. Goodrich

n. 411

V. Langdon

IL 153

Collester v. Hailey

636, 646

Collett v. Frazier

IL 661

Collier v. Nevill

n. 428

Collinge V. Heywood

II. 638

Collins, Ex parte

11.82

V. Benning

II. 644

V. Butler

1.457

V. Johnson

L97

V. Jones

IL 613

V. Lincoln

L47

; IL 189

V. Martin I.

184, 185,

224 ; IL

43, 265, 435, 493
CoUis V. Emett I. 32, 109 ; II. 11, 50,

585, 592

V. Stack II. 650

Collott V. Haigh I. 229, 325 ; II. 249,

250

Collyer v. Willock IL 656

Colt V. Noble L 515

Columbia v. Amos II. 510

Colvin V. Holbrook II. 209

V. The State II. 585

Colyer v. Craig II. 606

Combe V. Woolf L 237 ; II. 247

Conibes's Case I. 90

Combs V. Bateman II. 206

Comcgys v. Booth I. 239 ; II. 245

Commercial Bank v. Benedict I. 231,

232; II. 100, 298, 301, 302, 313, 314

Commercial Bank r. Clark I. 622, 626

V. Cunningham I. 229,

326 ; IL 250

». French L 170,238;

IL 449, 451

V. Goto I. 488

V. Ilamer I. 419, 435

v. Hughes I. 464, 537,

632; II. 71

r.King L 512, 518

V. Lum II 577

V. Newport M in.

Co. 1.170

r. Norton I 10(^, 108
T. Routh I. 60

INDEX TO CASES CITED.

xxxu

Commercial Bank ». Strong I. 478, 482,
488, 489, 490
of Natchez V. Clai-
borne II. 445
ofPenn. v. Union
Bank of N. Y.

II. 209
Commissioners of Berks Co. v. Ross

II. 246
of Knox Co. V. Aspin-

wall 1. 35

&c. T. Hanion II. 577
Commonwealth v. Carey II. 476

». Frost 11.411,418

». Green 11.318

». Johnson I. 198, 215
r. Manley 1.79,88;

n. 447

V. Miller II. 425, 588
V. Sankey II. 586

V. Stephenson II. 588
V. Stone II. 105, 107,
194, 195
V. Taylor II. 588

V. Vanderslice I. 242, 246
V. Ward II. 545

». Whitney II. 587

T. Wilson n. 588

of Kentucky v. Bass-
ford II. 380
Comparet v. Ewiiig II. 397
Comstock V. Smith II. 152
Conant v. Hitt II. 645
Concord v. Pillsbury II. 603, 609
Condit V. Baldwin II. 411
Cone V. Baldwin I. 259 ; II. 275, 276
Conger v. Tradesman's Bank II. 412
Conicr .& Holland's Case II. 235
Conklin v. Parsons II. 616
V. Waltz II. 620
Conkling v. King II. 160, 161
». Underbill 11.419
Conn V. Coburn I. 68, 244
V. Gano I. 310
V. Penn II. 397
Connecticut v. Jackson II. 424
V. Johnson II. 425
& Passumpsic Rivers R.
Co. V. Newell II. 33
Conner r. Routh I. 39 ; 11. 569

Connerat v. Goldsmith

L244

Connery v.^ Kendall

L 275

Connolly v. Goodwin

I. 635

Connor v. Bellamont

II.

376, 379

V. Martin

78,

79; II. 3

V. Winton

II. 607

Conoway v. Spicer

II. 659

Coiiro V. Port Henry Iron Co.

I. 169

Conroy v. Warren I.

51;

II. 58, 59, 72,
73, 74, 84

Consequa v. Willings

II. 376

Converse v. Moulton

II. 513

Conway v. Case

11.84

Conwcll V. Morris

IL 645

V. Puraphrey

11.415

Cook V. Bank of Lexington

II. 434

V. Darling

393, 396

V. Gray

1.393

v. Helms

224, 255

V. Litchfield L

471,

473,

641 ; IL

328

343,

348,

377, 380

V. Martin I.

310,

431,

533, 537,
550, 551

V. Mix

L210

V. Moffat

II. 328

V. Renick

394, 489

V. Sanford

L99

V. Satterlee

1.45

V. Southwick

II. 120

Cooke V. Colehan

I. 40

V. Darwin

IL 292

V. French

L469

V. Nathan

II.

122, 141

Cookendorfer v. Preston

I. 397

Coolbroth v. Purinton

I. 29

Cooley V. Lawrence

II. 125

». Rose

II.

424, 463

Coolidge V. Brigham

11.38

V. Inglee

.216

; II 543

V. Payson

294, 295

V. Ruggles

L45

Coombe v. Miles

II. 408

Coombs V. Ingram

I. 195

Coon V. Brook

1.78

Cooper V. Dedrick II. 130, 132, 143, 638
V. Le Blanc II. 590, 593

V. McClurkan I. 126

V. Meyer I. 322 ; II. 50, 483,

591, 592
T. Parker II. 648

INDEX TO CASES CITED.

Coopei p. Sandford
V. Scott
V. Shepherd
V. Tappan

II. 372
II. 2.33
II. 436
II. 501

V. Waldegrave II. 325, 326, 341,

342, 371, 377

V. Willomatt II. 436

Coore T. Callaway II. 209, 489

Cojje V. Arberry II. 301

V. Daniel II. 374, 439

V. Smith I. 237, 238

Copp V. M'Dugall T. 444, 559 ; II. 498

V. Sawyer I. 178; II. 55

Copper-Miners' Co. v. Fox I. 163

Coppock T. Bower I. 196, 215

Corbett v. State of Georgia II. 597

Corbit V. Bank of Smyrna II. 89, 94, 99,

100, 103, 106, 107, 153, 187, 189, 191,

192, 194, 196

Corcoran v. Powers II. 427

Cordwell v. Martin II. 568, 573

Corfield V. Parsons II. 209

Corlics V. Gumming II. 156

Cormuna v. Bank of Louisiana I. 495

Cornell v. Moulton I. 381, 3S6

Corney v. Da Costa I. 530, 5.54, 561,

573, 575
Cornforth v. Rivett II. 455, 605

Cornish v. Bryan II. 46

Cornu r. Blackburne I. 152

Cornwall v. Gould I. 632 ; II. 151, 204
Corp f. M'Comb 1.395,515

Corser v. Craig I. 291, 331 ; II. 47

Cory V. Scott I. 534, 541, 551, 555, 630
Cospey V. Turner II. 580

Costar V. Davlcs II. 153

Coster V. Bank of Georgia II. 168

V. Dilworth II. 4 1 1

V. Thomason I. 494, 502

Costin r. Rankin I. 482

CoU V. Buck I. 40

Cotes V. Davis I. 78, 79, 81, 82 ; II. 3,

479, 489
Cottam V. Partridge II. 648

Cotten V. Williams II. 5.53, 580

Cotton V. Ikasly II. 297

V. Kvans I. 125, 126

r. Godwin I. 245 ; II. 621

Cottrell V. Conklin II. 120, 121, 123, 520
Couch V. Meeker I. 51

Coucli I'. Mills

V. Waring
Coulon V. Champlin
Coulson's Case

V. Walton
Coulter V. Robertson

I. 249
II. 241, 2J4

I. 489
II. 586
II. 579
II. 420

County of St. Charles v. Powell II. 663

Conpry v. Dufau II 525

Course v. Shackleford I. 381, 382, 520,

529

Coursen v. Hamlin II. 611

Coursin v. Ledlio I. 44, 228 ; II. 453, 456

Courtois V. Carpentier II. 318

Cousins V. Paddon II 602

V. Thompson II. 92

Coutant V. Schuyler I. 179 i II. 54

Covcly V. Fox II. 182

Covington v. Comstock I. 309, 429

Coward v. Hughea I. 79

Cowden v. Elliot II. 608

Cowe V. Halsall II. 547

Cowell V. Edwards II. 254

V. Simpson II. 165

V. Watts I. 156

Cowic V. Harris I. 41

Cowlcs V. Harts I. 472

V. McVickar II. 428

Cowley V. Dunlop I. 199 ; II. 455

Cowper V. Smith II. 134, 248

Cowperthwaite r. Sheffield I. 290, 332,

334, 335, 506 ; II. 60, 226

Cowqua T. Lauderbrun II. 372

Cox V. Adams II. 336

V. Bailey II. 658

V. Baldwin II. 162

r. Bank of Tennessee 1.660,661

V. Coleman I. 287, 302

V. Davis II. 633

r. Earle 1.317

V. Fen wick II. 167, 169

V. Troy I. 48, 291 ; II. 573

V. United States II. 318

?'. Wallace II. 510

V. AViiliams II. 469

Coxe V. ILiid<inson IT. 153, 160, '217

V. State Bank II. 91

Cox on V. Lyon II. 474

Coyle V. Smitli I. 552, 553

Crabtrec v. Clark II. 578, 580

V. Cliatt II. ri2

INDEX TO CASKS CITED.

xl=

Crabtrcc v. May I. 77

Craig V. Baptist Educational Soc. II. .511

«;. Brown II. 30

V. Calloway Co. Ct. II. 656, 658

r. Craig I. 179; II. 55,357

V. City of Vicksburg II. 33, 34, 11 5

Grain v. Cohvell I. 600, 601, 619 ; II. 247

Cram v. Hendricks II. 428

V. Sherburne I. 590, 595, 604

Cramlington v. Evans I. 385, 391 ; II.

210, 451

Craneh v. White II. 265, 266, 293, 435

Crane v. Ailing I. 248

z». Hubbel 11.411

V. Newell II. 240, 245

V. Stickles I. 242

Crank v. Frith II. 475

Crawford v. Berry II. 160

». Branch Bank 1.471,474,

485, 505 ; II. 339, 342, 344, 346

B, Cully I. 45

». Johnson 11.406,417

r. Millspaugh II. 235

V. Stirling II. 605

V. Summeis II. 297

Crawfurd v. Royal Bank II. 281, 283

Crawley v. Littletield II. 639

Crawshay v. Ilomfray II. 169

Creamer v. Perry I. 566, 571, 592,

595, 598

Creath v. Sims I. 240 ; II. 240, 533

Creed v. Stevens II. 419

Cremer v. Higginson II. 225, 227

Crenshaw v. Jackson II. 136

». M'Kiernan 1.393,410,412,

5f6

Cripps V. Davis I. 270 ; II. 9, 596, 604, 661

Crisp V. Black II. 223

V. Griffiths II. 151, 154

Crisson v. Williamson I. 496

Crist V. Garner II. 617

Critchlow V. Parry II. 25, 212, 482, 484,

589

Crocker v Arey II. 634

V. Clements II. 629

». Getchell 1.471,476,514;

II. 520

V. Gilbert 11.126, 143

V. Whitney I. 333

Crocket v. Trotter II. 204

Crockett v. Thomason II. 550, 573

Crofts V. Beale I. 196; II. 127

Cromwell v. Arrott I. 377, 380

V. Hynson I. 365, 366, 493, 500

v. Lovett II. 83, 87

Cronise v. Kellogg I. 326

Cronk v. Frith II. 480

Crook V. Jadis I. 258 ; II. 28, 1 87, 272, 277

Crookshank v. Mallory II. 605

V. Rose I. 217

Cropper v. Nelson II. 468

Crosby v. Grant I. 259, 263, 417

V. McDermitt II. 395

V. Morton I. 337

V. Wyatt I. 240, 241 ; II. 135,

245, 533

Cross V. Rowe II. 445

Crosse v. Smith I. 488, 489

Crossen v. Hutchinson I. 446, 528

Grossman v. Fuller II. 430

Crostliwait v. Ross 1. 138

Crotty V. Hodges II. 580

Croughton v. Duval I. 237

Crow V. Watkins II. 605

Crowe V. Clay II. 286, 292, 295, 296, 308

Crowley v. Barry I. 362, 495, 634 ;

11. 466
Crowiiinshield v. Robinson II. 607

Croxen v. Worthen I. 616

Crozer v. Chambers II. 519

Cruciiley v. Clarance I. 33, 112 ; II. 11,

448

Cruger ;;. Armstrong I. 511, 537, 552;

II. 57, 58, 59, 71, 73, 84

Cruickshanks v. Rose II. 232

Crump V. Nicholas II. 422

Crutchly v. Mann I. 33, 58 ; II. 480

Cuff V. Brown I. 203

CuUen V. Green II. 623

Cullurn V. Branch Bank I. 210, 224

V. Casey I. 651

Culver V. Parish I. 264

Cumber ». Wane II. 154, 204

Cumberland Bank v. Hall II. 559, 577

Cuming v. French I. 599, 600, 616

V. Marshall II. 315

Cummings v. Dennett II. 128

V. Freeman I. 25

t;. Putnam II. 620

V. Williams (4 Wend.) II. 413

xlii

INDEX TO CASES CITED.

Cumniinu v. Williams (5 J. J. Marsh.)

II. 608

V- Wire

II. 414, 420

Dabbs V. Humphries

IL 456, 652

Cumpston c. McNair

II. 141

Dabney v. Campbell

I. 402, 404

Cundy v. Marriott

I. 559

V. Stidger

1.502

Curliffe, Ex parte

11.85

Da Costa v. Cole

I. 543

7'. Booth

258; 11. 271

V. Davis

11. 373

V. Whitehead

. 17; II. 473

V. Hatch

IL319

Cunningham v. Hall

II. 406

V. Jones

L 190

V. Wardwell

I. 62, 2S8 ;

Daggett V. Pratt

IL 392

II. 524

V. Tallman

IL 2.54

Curan v. Colbert

I. 237, 246

Dagnall v. Wigley

IL411

Curie V. Beers

I. 45

Dale V. Lubbock

L 478

Curlewis v. Corfield

I. 617

V. Pope

11.512

V. Lord Mornin

gton

11.641,646

Dalrymple v. Dalrymplo

II. 350

Currie v. Child

II. 480

Dal ton V. AVoburn

I. 245

Currier r. Hodgdon

11.50

Daley v. Slater

I. 514

Curry v. Bank of Mobile

1.494,509, 516;

Dana v. Angel

IL 181, 187

30, 480, 564

V. Conant

II 142

V. Herlong

I. 555

V. Kemble

L 494, 496

V. Kurtz

II. 589

V. Sawyer I.

417, 418, 420

Curtis V. Bemis

II 454

V. Underwood

II. 482

V. Carpentier

II. 372

Danforth v. Culver

II 649, 660

V. Hubbard

II.

151, 152, 176

Dangerfield v. Wilby

IL 151, 294,

V. Ingham

II. 153

296. 308

V. Leavitt

II. 409

Danks, Ex parte

IL 623

V. Rickards

I. 33

Daniel t'. Cartony I

218; IL 431

V. Rush

II. 163

V. Daniel II.

559, 577, 580

V. Smallman

II. 141

V. Ray

IL 524

V. State Bank

1.482,487, 493

Daniels v. Kyle I. 273 ;

II. 68, 73, 74

V. Wakefield

II. 502

Dann v. Norris

IL 442

Curtiss V. Greenbanks

II. 620, 625

Darbishire v. Parker I. 269,

479, 507, 509

V. Martin I. 583, 591, 609, 611 ;

Darling v. March I. 140,

142, 144, 145

II. 472

V. Mcachum

II. 635

Gushing v. Gore I. 199,

201

, 552)11.84,

v. Wells

II. 636

Darnell v. Williams

I. 207

V. Wyman

II. 530

Da Silva v. Fuller

IL 255

Cushman v. Domcnt

II. 120, 519

I)aul)uz V. Morshcad

I. 152; IL 8

V. Haynes

I. 38, 260

Davoga v. Moore

L33

Cuthbert r. Bowie

II. 535

Davenport v. Davis

II. 478

V. Haley

II. 419

V. Freeman

II. 469

Cutler V. How

II. 414

V. liunlett

L 126

V. Rao

II. 169

V. Woodbridgo

IL46

Cults V. Perkins

I. 287,333

David V. Ellice

II. 199, 202

V. United States

II. 553

V. Eloi

TL17J

Cuyler v. Cuyler

II. 532

V. Porter

IT. 318

V. Nellis

I. 497

V. Preccc

IT. 217

V. Stevens 11.401,

402,477, 515

Davidson v. Bridgeport

IL 1.53, 218

V. Cooper II. 553

575, 577, 'tSO

V. Harrisson

II. 54

INDEX TO CASES CITED.

xliii

Davidson v. Stanley I. 91, 92, 116 ;

11. 489

Davie v. Stevens II. 9

Davies v. Ciiim II. 639

V. Dodd II. 310

V. Edwards II. 6.56

». IIumi)liieys II. 253, 254, 638

V. Stainbank I. 239 ; II. 502

V. Watson II. 598

V. Wilkinson I. 38; II. 146

Davis & Desauque, Estate of I. 135,

145 ; II. 200

V. Biink of River Raisin II. 107

v. Barckay II. 233

■D. Barker II. 286

V. Barrington I. 233, 235

r. Beekham I. 497

V. Benbow II. 305

V. Bradley I. 290

r. Briggs I. 137; II. 440

U.Carlisle 11.563,577

r. Child 11.170

V. Clarke I. 62, 289, 313

V. Clemson II. 381

V. Coleman II. 328, 377, 380,

559, 658

r. Cotten II. 640

V. Dodd II. 151, 286, 287, 296,

297, 302

V. Emerson II. 253

V. Francisco I. 447, 530

V. French I. 161

V. Garr I. 35 ; II. 645

V. Gowen I. 482, 586, 587, 595,

601, 619

V. Greely II. 395

V. Gyde II. 164

V. Hanly I. 511, 512

V. Hardacre II. 408, 412

v. Huggins I. 237

V. Jacquirn I. 67

V. Jenney II. 550

V. Lane II. 53

V. McCready I. 261

V. Miller II. 50

V. Minor II. 383

V. New Brig II. 1 7o

■ r. Sawtelle 11. 467, 470

r. Smyth II. 394

r. Steiner II. 652

Davis V. Williams I. 498

Davison, Ex parte I. 4C

Davlin V. Hill II. 534

Dawc V. Holdsworth II. 228, 229, 230

Dawkes v. De Lorane I. 43

Dawson's Case II. 586

Dawson v. Bank of Illinois II. 504

V. Callaway II. 632

V. Dillon II. 620

V. Kearton I. 179

V. Morgan I. 662 ; II. 458

Day V. Cummings II. 416

V. Elmore II. 130, 141, 142

V. Lyon II. 439

V. Nix I. 203

V. Whitney II, 46

Dayton r. Trull 11155,182

Deacon v. Stodhart II. 216

Dean v. De Lezardi I. 41 ; II. 514

V. Hall II. 25, 132, 519

V. Hewit II. 220, 437, 662

V. Ncwhall I. 249 ; IL 238

V. Richmond I. 78 ; II. 447

V. Speakman I. 232 ; II. 290, 291,

294,314

V. Williams II. 425

Dearborn v. Cross II. 529

Dease v. Jones II. 637

Death v. Serwonters II. 455

Dcaver v. Carter II. 638

De Bengareche v. Pillin I. 427

De Berdt v. Atkinson I. 447, 529, 556,

557
De Bernales v. Fuller II. 392

Debesse v. Napier I. 335

Deblicux ». BuUard 1.515

De Bruhl v. Neuffer IL 228

Debuys v. Mollere I. 595, 596, 604, 620,

622
Decatur Bank v. Spence I. 110, 111

Decker v. Mathews II. 28, 293

De Cordova v. Atchison II. 443, 446

Decouche v. Saveticr II. 369

Dedham Bank v. Chickering II. 227, 232
Dedman v. Williams I. 244

Deering v. Sawtel II. 469

V. Winchelsea IL 253

De Forest v. Frary I, 39, 43

T. Strong n. 410, 411

De Havilland v. Bowerbank II. 393

S.liV

INDEX TO CASES CITED.

Dehers r. Harriot I. 60, 62, 358, 382,

404; n, 261, 312

Dehuffr. Turbett I. 237

Deibler r. Barwick II. 167

De La Chaumette v. Bank of England

I. 223, 226 ; II. 257, 266, 271, 280,

283, 293, 326, 334, 342, 353, 355

De la Courtier v. Bellamy I. 41, 49, 386

Delafield v. State of Illinois II. 33, 115

Delano v. Bartlett II. 493, 494

De la Torre v. Barclay II. 25 1

Delauney v. Mitchell I. 186 ; II. 20, 27

De la Vega v. Vianna II. 319, 326,

366, 367

Dclegal V. Naylor II. 369

Deloach v. Turner 11. 647, 649

Dclvalle r. Plomer 11.319

Demeritt v. Exchange Bank II. 364

Deminds m. Kirkman I. 509, 511, 512

Deming v. Norton II. 246

Den». Clark I. 151

v. Richards II. 646

V. Wright II. 572, 574

Denegre v. Hiriart I. 471, 473

V. Milne I. 581

Dennen v. Haskell I. 264

Dennett v. Goodwin I. 45 ; II. 637

V. Wyman I. 264, 269

Dennie v. Hart II. 86, 159

V. Walker 1.412,449,452; 11.461

Dennis v. Jaffr^y II. 372

V. Morrice I. 599, 630, 632

V. People II. 588

V. Rider I. 237

Denniston v. Bacon II. 28

V. Imbrie I. 554; II. 154,

397, 426

Dcnnistoun c. Stewart I. 476, 646

Dennison v. Brown I. 200

Denny v. Palmer I. 493, 509, 529, 556,

563, 566, 567, 573, 574

T. Smith II. 639

Dcnston v. Henderson II. 370

Dent V. Dunn II. 86, 394, 396, 621, 626

Denton v. Embury II. 630

Depau V. Humphreys II. 318, 328, 336,

337, 338, 346, 379

Depeau r. Wnddington I. 224

Depcw V. Wheelnn II. 290, 291

Deranco r. Montgomery 11. 645

' Derickson r. Whitney II. 498

De Ridder I'. Schermerhom I. 251

Des Arts v. Leggett II. 294, 300, 303,

623, 625
Desbrowe v. Wetherby II. 548

Descadillas v. Harris II. 152, 172

Desha v. Stewart II 440

Deshon v. Eaton II. 649

De Silva v. Fuller I. 230 ; II. 81, 596
De Sobry v. De Laistre II. 318, 320,

376
Despatch Line of Packets v. Bellamy

Manuf. Co. I. 97

Dessau t;. Bours II. 518

Destrehan v. Fazende II. 641

De Tastet v. Baring I. 648, 65?

De Tastett v. Crousillat II. 605

Devallar v. Herring II. 268

Devaynes v. Noble II. 61, 222

Develing v. Ferris I. 570

Devoe v. Moffatt II. 72, 87

Dewar r. Span II. 378, 379

Dewdney, Ex parte II. 644

Dewey v. Bowman II. 392

». Cochran L 236 ; II. 445

De Witt V. Bigelow II. 248

De Wolf V. Johnson II. 328, 337, 376,

377, 378, 420

V. Murray I. 421, 435, 438,

471, 477, 646

D'Wolf i;. Rabaud IL 129

Dexlaux r. Hood 1.392

Dexter v. Clemans II. 521

Deyraud v. Banks I. 367, 422

De Zeng v. Bailey I. 247

V. Fyfe I. 226

Dil)ble ». Duncan II. 520

Dick r. Leverick I. 322

Dicken v. Johnson II. 634

Dickenson v. Dickenson I. 22

V. Hatfield II. 652

Dickerson v. Board of Commissioners

I. 235
V. Burke I. 255

r. Turner L 637; II. 498

Dickins v. Bcal L 478, 493, 510, .537, .539,
540, 541, 542, 642; II. 492, 496
Dickinson v. Bowes I. 306, 427

r. Burr II. 442

r. Hall I. 204, 2f 6

INDEX TO CASES CITED.

xlv

Dickinson v. King

V. Prentice
V. Tunstall
». Valpy 1.138,140^

V. Williams
Dicks V. Ciish

Dickson, Ex parte II.

V. Primrose
V. Thomson
Didier v. Davison II.

Digole V. London & Blackwall K

Co.
Dillard v. Philson
Dillon 7'. Dudley

V. Rimmer II.

Dilworth v. Carter
Dingwall v. Dunster I.

Dinsmore v. Bradley

V. Dinsmore
Disborougli v. Bidleman

V. Jones
Divcrsy v. Moor

Dix V. Van Wyck II.

Dixie's Case
Dixon's Case
Dixon V. Dixon

V. Elliott

V. Holdroyd

V. Nuttall I. 384, 405

v. Parkes

V. Ramsay
Dobr. Halsey 1.125,127

Dobree v. Eastwood I. 478, 481 ,
Dockray v. Dunn I.

Dod V. Edwards I. 230, 261,

Dodge V. Bank of Ky. I.

Doe V. Barnard II.

V. Brown

V. Burnham I.

V. Figgins

V. Gooch

V. King

V. Newton

V, Suckcrmore

V. Thompson

V. Warren II.

d. Tatum r. Catomore II.

II. 153

II. 466

II. 392

II. 180,

478

II. 647

I. 358

15.5, 184

II. 275

II. 648

636, 652

ailway

I. 163
II. 646
II. 393

206, 234
II. 632

324, 325
II. 364
II. 651
II. 658
II. 659
1.326

415, 419
11.418

II. 82
11. 631

1.615
II. 639
; II. 644
II. 397
II. 327
; II. 478
513,514
199, 310
328 ; II.
215, 236
502, 509
408, 412
11.413
213, 279
11. 453
II. 413
11.421
II. 477
II. 477
11.641
424, 425
576, 577,
580

Dogan r. Ashbey IT. 162, 177

Dole V. Gold I. 470, 477

DoUfus V. Frosch I. 358, 396, 397, 399,

464, 537, 539 ; II. 220, 442, 480

Doman v. Dibden II. 39?

Don V. Lippmann II. 320, 326, 3.33, 342,

367, 377, 383, 385

Donaldson v. Benton

V. Means

Donath v. Broomhead

Done V. Walley

II. 502

I. 596, 597, 600

II. 178

II. 253

II. 325, 364

I. 611

II. 298,302, 305,

309

II. 138

II. 369

Doncily ;•. Corbett
V. Howie
Donelson v. Taylor

Donley v. Camp
Doran v. O'Reilly
Dorchester & Milton Bank r.New Eng-
land Bank I. 480
Dormady v. State Bank of 111. II. 298,

304, 309

Dorr V. Swartwout II. 635, 653

Dorsey v. Gassaway II. 227, 228

V. Hardesty II. 320, 327, 368

V. Reese II. 610

V. Watson I. 596, 622

Doty V. Bates I. 128, 130

V. Blake I. 247

V. Wilson II. 50

Dougal V. Cowles I. 124, 135, 288 ; 11.

154, 157, 161

Dougherty v. Western Bank I. 310, 375,

430, 431 ; II. 88, 95, 189, 197, 643

Douglas V. Elkins II. 638, 640, 6.'J0, 651

Douglass V. Rowland
V. Rathbone
■v. Reynolds
V. Scott
V. Wilkeson

Dow V. Rowell
V. Savward

II. 130, 140

II. 140

II. 567

I. 33,312

II. 336. 347
II. 636

V. Tuttle I. 241 ; II. 502, 530, 538

Dowbiggin v. Bourne
Dowdall V. Lenox
Do we V. Schutt
Dowling 75. Ford
Down V. Hallinff

Downe v. Hailing
Downer v. Remer

II. 249

II. 406

I. 199; II. 427

II. 662

L 258,272 : IL 79, 271,

273, 277, 279

IL 266

I 490, 497

klvi

INDEX TO CASES CITED.

Downer v. Shaw
Downes v. Church

V. Richardson
Downey v. Hicks
Downing v. Backenstoes

V. Funk
Downs V. Planters' Bank

V. Webster
Dows V. Cobb
Dozier v. Duffee

V. Ellis
Draco, Brig
Diage V. Ibberson

V. Nctter
Drake v. Elwyn
V. Hcnly
V. Mitchell
V. Ramey
V. Rogers
])taper v. Clemens
V. Glassop

V. Jackson I. 87, 88,
V. Pattina
V. Ronieyn
T. Snow
V. Trescott
V. Weld
Drawn v. Cherry
Drayton v. Dale
Drew V. Drew
V. Towle
Drinkwater v. Tebbetts
Drury v. Macaulay

V. Smith II. 89, 92, 188

V. Vanncvar II. 448, 637

Dry Dock Bank v. Am. Life Ins. &

Trust Co. 11. 432, 433
Du Belloi.K V. Waterpark II. 395, 396,

397
I. 70
I. 241
II. 637
II. 472
II. 319
I. 282
II. 210
II. 502
II. 651, c,r,c
II 54

II. 654

I. 60

II. 565, 573

II. 154, 161

I. 228, 408

1.198

I. 509, 511,

512, 518

II. 505

11.34

II. 502

II. 636

II. 173

I. 215

I. 328; II. 236

I. 136

II. 469

II. 163

II. 305

I. 49; II. 514

I. 362, 366, 367
II. 631

; II. 447
I. 22
II. 246

II. 125, 129, 132
11.407, 410, 415

II. 121, 122

1.45

70, 153,321; II. 483

II. 635

I. 209, 210; II. 606

I. 580, 585, 589

I. 45

Dubose V. Wheddon
Dubuisson v. Folkes
Duckett V. Cridcr
Duckham v. Wallis
Du Costa V. Cole
DnCaur v. Oxcnden
Duff V. East India Co.

V. Ivy
Dnfficw. Phillips
Duffield V. Elwca

Duffield V. Hicks II. 54

Dufour V. Morse I. 489, 573, 574, 575
Dugan V. United States I. 255, 358 ;

II. 30, 32, 220, 442, 451, 452,
456, 480, 564
Duggan V. King I. 444, 559

Duhammcl v. Pickering I. 152 ; II. 8

Duke of Norfolk v. Howard L 371, 421
Dukes V. Dow

II. .503
II. 297,298
I. 264, 338, 343, 345,
639
I. 206 ; II. 475
I. 125
I. 57, 642; II. 322,
324, 329
I. 142
I. 442, 448, 450,
459
V. Maryland Savings Institu-

Dumas v. Powell
Dumont v. Pope

Dunbar v. Marden
Duncan v. Clark

V. Course I

V. Lowndes
V. M'Culloutrh

tion
V. Reed
V. Scott

IL 412

I. 240

L 186, 189, 276;

II. 485, 493

L497

V. Sparrow
Duncklee v. Greenfield Steam-Mill

Co.
Dundas v. Bowler
Dundass v. Gallagher
Dungannon v. Hackett
Dunham f. Day
V. Gould
V. Pettec
Dunkle v. Renick
Dunlap V. Buckingham

V. Hales

V. Silver

V. Thompson
Dunlop V. Iliggins

V. Monroe
Dunn's Case

Dunn V. Adams I,

T. O'Kccfo

V. Smitli

V. Spalding

V. White
Dunning r. Chambcrlin

r. Pratt
Dunscomb v. Bunker

II. 46

II. 336

L 141

II. 369

IL 433

IL 412

II. 622, 623

II. 428

IL 628

L74

IL62

I. 495, 497

IL 492

II. 315

IL 585

13 ; IL 336, 347

I. 337

I. 232

L 239

L 210

II. 383

IL512

IL 326, 379, 41.5,

417

INDEX TO CASES CITED.

xlvii

Dupays v. Shepherd I. 312

Dupeux V. Tioxler II. 275

Duplein v. De Roven II. 382

Dupont V. Mount Pleasant Ferry

Co. I. 170; II. 4.52

Dupuy V. Gray II. 502

Duramus v. Harrison II. G07

Durant v. Banta II. 426, 428, 429

DurcU V. Wendell I. 250

Durham v. Price I. 568, 596

Durkin v. Cranston I. 59

Duinford v. Patterson I. 407

Duroure v. Jones II. 646

Durrum v. Hendrick I. 537, 550

Duryee v. Dennison I. 596, 597

Dusenbury v. Ellis I. 122

Dutchess Cotton Manuf. v. Davis I. 408
Duttou V. N. E. Mutual Fire Ins.

Co. II. 176, 201

V. Poole I. 297

V. Tilden II. 589

Duty v. Graham II. 632

Duvall V. Farmers' Bank I. 563, 567,

578, 582, 621, 626; II. 412, 516

Dwight V. Emerson I. 381

V. Newell I. 158; II. 5, 478

V. Pomeroy II. 516

V. Scovil I. 464, 523

V. Williams II. 141

Dyerr. Clark I. 144

V. Covington Township I. 45

T. Hunt 11.318, 359

Dyke v. Mercer II. 240

Dykers v. Leather Manuf. Bank II. 56,

59, 60, 61, 62, 66, 78

Dyott ». Letcher II. 647

Eagle Bank v. Chapin I. 515 ; II. 358,

491
v. Hathaway I. 483, 484,
487
of New Haven v. Smith

11. 37, 101, 189, 306, 600
Eagleson v. Shotwell II. 408, 416

Earl V. Page I. 206

Earle v. Reed I. 69

Earll V. Mitchell

II.

407, 434

Early v. Foster

II. 51S

V. Wilkinson

I. 94. 9=

Easley v. Crockford

II.

259

271, 272

f^ast V. Smith

471, 505

East Iladdam Bank v. S

covi

I. 480

Easterly v. Pullen

II. 650

Eastern Bank v. Brown

I. 495

V. Capron

11.614

Eastern Star, The II. 86, 171, 172, 180
East India Co. v. Tritton II. 212, 489,

588
East London Water-Works Co. v.

Bailey I. 164

Eastman v. Fifield I. 309

V. Laws II. 619

V. Plumer IL 216

Easton v. McAllister II. 643

V. Pratchett I. 178, 192; II. 56

East River Bank v. Gedney I. 273 ; II. 74

Eastwood V. Kenyon I. 79

Eaton V. Bell L 95 ; II. 425

V. Carey I. 199

V. Emerson II. 504

V. Melius II. 40

V. Taylor I. 148

Eaves v. Henderson II. 506

Eccles V. Ballard I. 378, 380, 383 ; II. 25

Ecfert V. Des Coudres I. 381, 382, 520

Echols V. Barrett II. 640

Eckel t7. Jones 11.518

Eddy V. Bond II. 554, 555, 560

Edgar v. Greer I. 373, 394

Edgecombe v. Rodd I. 215

Edgell V. Stanford IL 266, 290, 309

Edgerly v. Emerson I. 242

T. Shaw I. 67, 68, 73, 76

Edgerton v. A'spinwall II. 542

V. Edgerton I. 228

Edie V. East India Co. L 16, 163 ; II. 210

Edington v. Pickle II. 603

Edis V. Bury L 29, 63, 64

Ed meads v. Newman II. 613

Edmond v. Caldwell IL 151

Edmonds v. Gates I. 469

V. Goater IL 650

Edmonston v. Drake I. 298

Edmunds v. Digges L 103, 106, 194

V. Downes II. 652. 654

V. Groves I. 189 ; II. 487, 493

xlviii

INDEX TO CASES CITED.

Edon T. Smyth II. 236

Edson V. Fuller I. 282, 283, 285, 298,301

V. Jacobs I. 488

Edwards u. Bnhannon 11. 168, 169

V. Brewer II. 178

V. Dick I. 218; II. 407

V. H.isbrook I. 310

V. Jevons II. 130

V. Jones II. 501

T. M'Kee II. 298

V. Morris II. 89, 92

V. Moses I. 540, 546, 552; II. 71

V. Ronald II. 361, 363, 364

V. Scull II. 439

r. Tandy I. 585, 586, 595,601 ;

II. 516

V Thayer I. 446, 529

V. Todd II. 606

Effinger v. Henderson II. 647

Egan r. Thrclfall 11.271

Egii V. Barnett II. 83, 84, 220

Ehrin<i:haus v. Ford II. 408

Eichelber<;er ». Finley I. 534, 535, 537,

548,549, 552, 553; II. 71, 73

Ekins V. East India Co. II. 369, 376

Elder v. Warfield II. 132

Eldred v. Ilawes I. 310

Eldrid<^c v. Rogers I. 374

Elford r. Teed 1.306,419

Elkins V. Edwards 11. 632

Ellett V. Moore II. 647

Ellicottr. Martin I. 188, 255, 259 ; II.

438

V. Nichols II. 654, 657, 658

Elliot's Case I. 29 ; II 586

Elliot V. Abbot I. 173 ; II. 445, 448

V. Cooper I. 23

v. Edwards II. 168

V. Heath II. 605

Elliott V. Brown II. 641, 651

V. Connell II. 524

V. Dudley I. 124

V. Giese II. 128

V. Mills II. 663

r. White I. 646

Ellis ». Brown 11.120,132,519

r. Commercial Bank I. 458, 478,

640, 641 ; II. .339

V. Ellis I. 26

V. Galindo I. 324, 325 ; II. 239

Ellis r. Hamilton II. 502

V. Mason I. 24

V. Ohio Life, &c. Co. I. 321 ; II.

589, 598

V. Warnes II 419

V. Wheeler I. 33 ; II. 59, 66

V. Wild II. 37, 41, 102, 186, 589,

600, 602

Ellison V. Collingridge I 24, 63

Ellmaker )•. Franklin F. Ins. Co. II. 606

Ellsworth V. Brewer II. 94, 209, 455, 456

Elminger ». Drew I, 209

Elsam V. Denny II. 456

Elting V. Brinkerhoff I. 338, 340, 378 ;

LI. 57, 58, 72, 74

Elton ». Johnson 11.126

Elwood V. Deifendorf I. 235, 240 ; II.

152, 154, 159, 202, 218

Ely V. Bibb II. I4l

V. Ely II. 578, 580

V. Kilijorn II. 511, 525

V. Withcrspoon II. 392

Emancipation, The II. 173

Emanuel v. Atwood II. 603

Embhn v. Dartnell I. 308, 427

Embree v. Hanna II. 387, 390

Emerson v. Crocker I. 264, 377, 381

V. Cutts II. 209, 455, 456, 485

V. Harmon I. 125

V. Miller II. 654

V. Murray II. 545, 577

V. Partridge II. 333, 387

V. Providence Hat Manuf. Co.

I. 93,99, 105, 117, 167; 11. 152

V. Thompson II. 659

Emery v. Day II. 639, 648, 657

i;. Tichout II. 228

V. Vinall I. 41

Emly, Ex parte I. 130

V. Lye I. 130; II. 41, 105, 184,

185, 601

Emmett r. Tottenham II. 443

Emmons v. Hay ward II. 641

V. Overton II. 511

Emmott ». Kearns II. 119, 126, 130

Emory v. Grcenough II. 325

English V. Darlcy I. 237 ; II. 234, 239,

240, 242, 243, 245, 249, 250

V. Trustees Indiana. <^c fTni-

vcrsity I. 71

INDEX TO CASES CITED.

xlix

English V. Wall I. 537, 545, 581

Ensminger v. Marvin I. 1 28

Enston v. Friday II. 309

Enthovcn v. Hoyle I. 33

Erie Bank v. Gibson I. 237, 238

Erwin v. Adams I. 311, 438

V. Downs I. 277, 362 ; II. 26

V. Saunders II. 512, 529

Esdaile v. La Nauze I. 107 ; II. 212, 285

V. Sowcrby I. 446, 528, 629

Eskridge v. M'Clure II. 167, 168

Esiava v. Lepretre II. 425

Esselstyn v. Weeks II. 648

Essex Co. V. Edmands II. 122

Estabrook v. Smith II. 440, 448

Estes V. Blake II. 637

y. Kyle 11.381,383,384

Etheridge v. Binney II. 393

Etter V. Finn II. 646

Etting V. Commercial Bank II. 592

V. Schuylkill Bank I. 476, 514,

515, 517

Eubank v. Boston II. 167

Eure V. Eure II. 446

Evans's Case II. 413

Evans r. Bell II. 524

V. Bremridge I. 232

V. Bridges I. 350, 351

V. Carey II. 649

V. Clover II. 608

V. Cramiington II. 4, 451

V. Davics II. 656

V. Drunimond I. 135; II. 199

r. Gee 1.351

V. Gordon I. 643

V. Gray II. 338, 375

V. Hardeman II. 641

V. Keeland I. 236

V. Kymer II. 27, 265, 435

v. Negley II. 406

v. Norris I. 557

T. Prosser II. 617

t). St. John I. 435

V. Smith I. 256, 662

V. State of Ohio II. 586

V. Underwood I. 40

V. Whyle II. 41, 184, 185

Everard v. Watson I. 468, 469, 470

Everett v. Collins II. 85, 87

V. United States I. 173

Vol. l.—D e

II. 359
I. 242

I. 76
. 361

II. 164
II. .535

II. 9

I. 109 ;

II. 478
I. 4 HO

I. 307, 423

I. 239

I. 237 ; II. 247

Evcrett v. Vendryes
Everly v. Rice
Everson v. Carpenter
Ewart V. Coulthard
Ewer V. Clifton
V. Myrick
Ewing V. Sills
Exchange Bank v. Monteath

Exchange, «&.c. Co. v. Boyce
Exon V. Russell
Eyre v. Bartrop
V. Everett

Fabens v. Mercantile Bank I. 480

Fackler v. Fackler II. 635

Fahnestock v. Schoyer II. 448

Fairr. M'lver 11.611

Fairbanks v. Dawson II. 654, 655

Fairchild v. Holly II. 226, 228, 229, 230

V. Ogdcnsburgh, &c. R. Co.

I. 309

V. 0. C. & R. R. Co. I. 288

Fairfield v. Adams I. 170 ; II. 439, 451
Fairlce v. Herring I. 285, 286, 293

Fairley v. Roch I. 317

Faith V. Richmond I. 135

Fake v. Eddy II. 375, 397

Fales V. Russell II. 298, 299, 302

Fallowes v. Taylor I. 215

Fall River Union Bank v. Willard

I. 337, 348, 372
Falmouth v. Roberts II. 577

Fancourt v. Bull II. 265, 266, 293

V. Thorne I. 44 ; II. 147, 542

Fannin v, Anderson II. 636

Fanning r. Consequa II. 333, 376

V. Dunham II. 416

Fanshawc t. Peet II. 474

Fant V. Cathcart I. 73

Faribault v. Ely II. 491

Farley ». Cleveland II. 132

Farmer v. Rand I. 513, 514 ; II. 556, 565

V. Russell II. 62

V. Sewall II. 410, 428

INDEX TO CASES CITED.

Farmers', &c. Bank v. Battle I. 480, 484,

Favenc v. Bennett

209, 227

495, 497, 498

Faxveil v. Heelis

II. 167

Bank v. Brainerd I. 659, 660

Fay V. Bradley

II. 425

& Mechanics' Bank of Kent

V. Goulding

II. 474

Co. T. Butchers and Dro-

Fayle v. Bird

308,

309, 425

vers' Bank I. 273 ; n. 75,

Fear v. Dunlap

IL 121

76, 478

V. Jones

11. 443

&c. Bank v. Butler I. 480, 482,

Fearn v. Filica

119

; II. 487

483

V. Lewis

II. 651

V. Catlin II. 498

Fearon v. Bowers

IL 178

Bank v. Clarke 11. 652

Feathcrston v. Wilson

IL 505

i-.Duvall 1.367,370,373,

Fcemster v. Ringo

II. 96

511, 512; II. 461, 492,

Feise v. Wray

II.

177, 178

495

Felch V. Bugbee

II. 364

c. Gilson n. 638

Fellows p. Carpenter

IL 534

&c. Bank v. Harris I. 49+

V. Kress

IL 221

& Mechanics' Bank v. Ker-

V. Prentiss

I. 240

cheval II. 137

Felton V. Dickinson

I. 29

7 ; IL 62

Bank r. Reynolds 1.231,232;

Fenby v. Pritchard

I. 224

n. 101, 246, 297, 301, 302,

Fenn v. Hamson ]

. 11/

, US

; IL 15,

304, 312, 313

41,

105,

184, 601

&c. Bank v. Rathbone I. 229,

Fenner v. Meares

11.62

326

Fcnouille v. Hamilton

I. 224

& Mechanics' Bank v. Troy

Fenton v. Goundry

305, 306

City Bank I. 169, 173

V. White

L 68

Bank v. Vanraeter I. 537, 554,

Fentum v. Pocock I.

229,

325,

326 ; IL

556, 560, 648

27,

242,

249,

250, 515

V. Waples I. 585, 587

Fenwick, Ex parte

II. 629

of Lancaster v. White-

V. Sears I.

554

; n.

326, 369

hill 11.476,496,497

Ferdon v. Jones

221,

224, 261

Farnham v. Ingham II. 522

Fereday v. Ilordern

II. 422

Farns worth v. Allen I. 418

V. Wightwick

IL413

V. Drake I. 32

Fergus v. The State

IL 588

V. Sharp II. 577

Ferguson v. Clifford

IL 327

Farnum v. Fowle I. 446, 528

V. Crowson

IL 645

Farquhar v. Southey I. 324, 325 ; 11.559

T. Flower

319,342

Farr v. Stevens II. 153, 181, 182

V. Ilill

II. 529

V. Ward II. 399, 482

V. King

IL 440

Farrar ». Gilman I. 173

V. Lothrop

11.615

Farrics r. Elder 11.315

V. Sprang

IL413

Farrington v. Brown I. 601, 621

Fernandey v. Glynn

284

328 ; IL

V. Frankfort Bank I. 222

85,

570, 593

V. Gallaway I. 235

Fernandez v. Lewis

I. 338,

340, 345

Fanvell v. Ililliard II. 458

Fernon v. Farmer

II. 45

V. Kcnnett I. 47

Ferrall r. Shaen

410,

414, 417

V. Tyler II. 439

Ferrers v. Shirley

11.

475, 476

Fash V. Ross I. 99

Ferris v. Bond

1.37

Fassct V. Brown II. 475

V. Henderson

il. 640

Fathcrcc v. Fletcher II. 634

V. Ludlow

11. ,^35

Fauntlcroy's Case II. 210

V. Saxton

39 'i, 497

INDEX TO CASES CITED.

Ferry v. Ferry
Ferson v. Sanjjcr
Fiddy v. Campbell
Field V. Carr

V. Holland

11. 424, 42.5

II. 629

XL 245

II. 208, 211, 231

11. 223, 227, 228

V. Nickerson I. 264, 270, 375, 376,

377, 379, 519; II. 516

Fieldhouse v. Croft II. 92

Fields V. Mallett I. 408

Fink V. Cox I. 178

V. Fink II. 55

V. Hake n. 615

Finn v. Gustin II. 466

Finnell v. Nesbit 11. 618

Finney v. Brant II. 647

V. Shirley I. 25

V. Turner II. 577

F. & M. Bank of Memphis r.White II. 95

First Congregational Soc. in Lyme v.

Miller II. 652, 656

Mass. Turnpike Co. v. Field II. 640

Firth V. Thrush I. 500, 514, 527

Fischer v. Hess II. 649

Fish V. Howland II. 167

V. Jackman I. 480

Fisher v. Beasley 11. 4 1 7, 4 1 8

V. Beckwith I. 282, 285, 287

V. Bidwell II. 395, 402

V. Bradford II. 442

V. Carroll II. 297, 298, 302,305, 306

V. Ellis I. 202 ; II. 449

V. Evans I. 442, 492, 493

r. Johnson II. 1 67

V. Lane 11. 387, 390

V. Leslie I. 25

V. Mershon IL 293, 294, 297, 310

V. Otis II. 414

V. Pomfret I. 14

V. Rieman II. 602

V. State Bank I. 385, 483

Fishmongers* Company v. Robertson

L 163

Fisk V. Cushman I. 86

v. Holden 11. 623

V. Wilson II. 629

Fiske V. Fostei I. 651 ; II. 363

Fitch TJ. Bogue U. 291, 297, 305, 310

V. Chapman 11. 472

r. Jones L 189, 262 ; IL 438, 474,

493, 494, 577

Fitch V. Lawton I. 170

r. Redding L 552, 603 ; U. 71

V. Sutton L245; 11.217

Fitler v. Beckley I. 309

V. Morris I. 491

Fitzgerald v. Stewart I. 336

V. Trant II. 238

V. Williams L 550, 551

Fitzhugh V. Runyon II. 515

Flack V. Green L 395, 482

Flcckner v. U. S. Bank L 173 ; II. 7, 419

Fleming v. Brook IL 89, 92, 188

V. Burge I. 25

r. Fulton L 395, 401,473

V. Gilbert II. 529

V. M'Clure L 485, 607, 634

V. Nail L 47

V. Potter I. 309

V. Simpson L 205

Flemming v. Denny I. 273 ; 11. 74

V. M'Clain IL 83

V. Mulligan IL 417, 419,

420, 427

V. Prescott I. 125

Fletcher v. Blodgett I. 434 ; II. 149, 540,

578

V. Braddyll IL 491

V. Dana IL 440

V. Dysart L 101

V. Froggatt I. 596, 597

V. Gushee L 188

V. Jackson IL 253

V. Manning II. 83

Flight V. Brown II. 291, 309

K.Maclean L 18, 19, 20

Flint i;. Day IL 121, 124, 250

?;. Pattee L 179; 11.55

v. Rogers L 411, 414, 419 ; IL 462

Florence v. Drayson II. 394, 397, 398

V. Jenings 11. 394, 398

Flower, Succession of II. 646

Floyd V. Day IL 94

Floyer v. Edwards 11. 406, 414, 418

Flynt V. Hatchett II. 634

Foard v. Johnson I. 492

V. Womack L 464, 538, 542

Foden v. Sharp L 229, 309, 435 ; IL 341,

376
Fogarties v. State Bank I. 62, 63

Fogg V. Middlesex Mut. F. Ins. Co. I. 51

lii

INDEX TO CASES CITED.

Fogg I Sawyer II. 101, 103, 105, 190,

192, 193, ig'^l

V Vi.'gip. I. 98

Foland v. Boyd I. 525

Folger V. Chase I. 171, 172, 436, 437 ;

II. 18, 569

FoUain v. Dupre I. 497, 498, 505

Follett r. Buyer 11.614

V. Eastman II. 532

V. Steele 11. 153

Folliott r. Ogden 11. 318, 355, 358, 368

Folsom V. Mussey I. 21 2

Foltzr. Mey 11.431

Fontaine v. Gunter II. 577

Foot V. Sabin I. 125, 127, 140

Foote V. Bragg II. 556

V. Brown II. 137

Forbes v. Smith II. 634

Force v. Craig I. 26

Ford V. Adams II. 50

V. Atwater II. 207

V. Babcock 11. 635, 636

V. Beech 11. 237, 533

V. Clements II. 637

r. Ford II. 556

17. Hopkins IT. 110, 113

T. Phillips I. 72, 76

Fordham v. Wallis II. 657, 660

Foreman v. Wikoff I. 497

Forkner v. Dinwiddie 11. 610, 611

Forman v. Jacob II. 214, 474

r. Wright 1.212

Foniey v Benedict II. 659

Forrest v. Ehvcs II. 409

Forster r. Clements II. 212, 285

V. Fuller I. 90, 161

Forsyth v. Ripley II. 628, 633

Fort V. Branson II. 447

V. Cortes I. 311

V. Meacher II. 577

Fortner v. Parham I. 499, 511

Fortune v. Hayes II. 657

Foster v. Andrews I. 124, 128

t;. Dawber II. 235

V. Hoyt II. 608

w. Jolly I. 194; IT. 522, 523

T. McDonald 1.482,483,484,514

V. Mnckny II. 208, 304, 307

V. Paulk I. 273-, II 71, 74, 84

r. Pearson I. 119; II. 187,272,273

Foster v. Shattuck I. 32 , II. 53, 448, 592

V. Sineath I. 483

v. Stafford II. 502

V. Trustees of AthenEcum II. 167,

168

Fotheringham r. Price I. 554, 601

Fouke V. Fleming II. 334

Foute V. Bacon 11. 649, 657

Fowke V. Bowie II. 230

Fowler v. Brantly II. 279

V. Brooks I. 235, 242 ; II. 239, 533

r. Bush
V. Garret
V. Hendon
V. Lawson
V. Ludwig
r. Shearer
V. "Willis
Fox r. Drake
V. Fisk
V. Frith
V. Reil
V. Whitney
Frail v. Ellis
Fralick i'. Norton
France ». Lucy
Francia v. Del Banco

V. Joseph
Francis' Case
Francis v. Nash

t'. Rucker
Frank v. Townscnd
Franklin v. Beatty
V. Low
V. March
V. Vandcrpool

II. 151

II. 420

L 513

II. 620

IL 86, 151, 152, 153

1.210

II. 443

L 98

II. 647

L 137

IL 477

n. 468, 470

IL 168

L45

IL 498

L 160, 182

I. 222

IL 585

IL 92

L 650, 654 ; IL 373

L 410

I. 79

IL 315

I. 25

L 537, 552 ;

IL 59, 71, 73

1. 448, 489

IL 616

11.67

467, 469, 470

I. 235

II. 224

II. 594

IL 228

V. Vcrbois

Bank v. Cooper

V. Freeman

V. Pratt II.

Fraser v. McConnell

Frazcr t. Bunn

Frazier v. Harvie

V. Ilyland

V. Warfield II. 334, 336, 341, .342

Frcaklcy v. Fox I. 162 ; II. 440

Frederick v. Cotton I. 14

Free V. Hawkins I. 321, 557,584 ; IT 482,

484, 504, 53.^, 589, 590

INDEX TO CASES CITED.

liii

Freeman v. Boynton I. 230, 358, 367, 456,
597,601,607 ; 11.262,286,298,302

V. Biittin

II.

407, 426, 428,
431,469

V. Kenncll

11.474

V. Perot

I. 315, 318

V. Perry

II. 46, 418

V. Ross I.

381,

407 ; II. 478

Freeman's Bank v. Pei

kins

I. 57, 643

V. Kolliiis

I. 236, 241 ;

II.

242, 245, .533

Freestone v. Butcher

II. 210

Freligh v. Piatt

I. 200, 204

French v. Bank of Columbia I. 536, 541,

548, 555, 556

,557

, 631 ; II. 494

V. Grindle

II. 410, 428

V. Price

151, 202, 218

Frere, Ex parte

11.28

Frevall v. Fitch

1.26

Frey v. Kirk

II. 360

Friend v. Beebe

II. 519

V. Harrison

1.214

Friley v. White

II. 634

Frink v. Green

I. 248

Frisbee v. Hoffnagle

I. 210

Frisbie v. Larned

II. 159, 162

Fritz V. Thomas

II. 659

FuUcrton v. Rundlett

V. Sturges I. 110

Fulton V. Matthews II.

V. Poole
Bank v. Beach

V. Phoenix Bank

II. 107,
Fulton Co. V. Wright
Fulwiler v. Jackson
Funes v. U. S. Bank
Furloiige v. Rucker
Furman v. Haskin I. 264,

Furniss v. Gilchrist
Furze v. Shanvood

Frontier Bank v. Morse II. 100, 103, 105,

192, 193, 197

Frost V. Everett II. 526, 529

V. Frost II. 645

V. Wood I, 99, 107

Fry 0. Evans II. 611

V. Hill I. 267, 268, 338, 339, 344

V. Rousseau
Frye v. Barker I.

237

Fryer v. Brown
V. Roe

Fugit V. Ewing

Fulford V. Johnson

Fuller's Case

Fuller V. Hooper
V. Loring
V, McDonald

V. Parrish
V. Smith
f uUerton v. Bank of U. S.

I. 47
II. 241,242,245,
414, 656, 657
II. 236
11.642
II. 616
II. 160, 181
II. 413

I. 95, 102, 502, 524
I. 237, 242

[. 576, 585 ; II. 25,

498, 516, 520

II. 616

II. 37, 38, 186, 600

Fussell V. Daniel
Fussil V. Brookes
FydcU V. Clark

II. 516

; II. 574

245, 533

II. 62

II. 416

I. 222 ;
283, 298

I. 374

II. 428
I. 311

II. 399
269, 378

II. 604
469, 471,
; II. 489
401, 410
II. 414
158, 184

I. 436, 437,
510

I. 132, 468,

507
II.

II. 41, 156,

Gable v. Parry II. 617

Gage V. Kendall II. 436, 443

Galm V. Niemcewicz I. 235, 239 ; II. 247,

533
Gaillard v. Ball II. 336, 376

Gaines v. Salmon II. 618

Gaither v. Farmers & Mechanics'

Bank
Gale V. Capern

V. Grannis

V. Kemper

V. Luttrell

V. Walsh
Gales V. Holland
Gallagher v. Roberts I. 370 :
Gallery v. Prindle
Galloway v. Legan
Gallway v. Mathcw (10 East)

I. 431

II. 617, 661

II. 406, 434

I. 435, 497

II. 611

I. 533, 642

II. 625

11.154, 181

I. 303

II. 406

I. 129, 130,

133

Galoupeau v. Ketchum II. 160

Galpin v. Hard I. 442, 449, 450, 451

Gal way v. Matthew (1 Camp.) I. 247 ;

II. 477

II. 138

I. 129

1.46

II. 414

Gamage v. Hutchins
Gamble v. Grimes
V. Hatton
Gambril v. Rose

liv

INDEX TO CASES CITED.

Games i Manning

L 310

Geiger v. Cook

L 179, 206

Gammon v. Everett

L 310, 431

Geill V. Jeremy

I. 509

V. SchmoU

L 301, 307

General Smith, The

IL 170, 175

Gannett v. Cunningham

I. 144

George v. Harris

I. 203

Gano V. Samue'

L 140

V. Stockton

I. 204

Gansevoort v. "Williams

124, 126, 141,

V. Surrey

L23; II. 16,480

142 ; IL 478

Geortner v. Trustees, &c. I. 146

Gantt V. Mackenzie

n. 393, 396, 399

Geralopulo v. Wieler

I. 320, 645

Gardener v. Parker

IL54

Germain v. Steam Tug

Indiana II. 170

Gardiner v. Jones

I. 596

Gerrish v. Sweetser

II. 479

Gardner v. Baillie

L 106

Gervis v. Baird

II. 475

V. Bank of Tennessee I. 639,

Getchell v. Heald

II. 656

642, 64.T

Gibb V. Mather

L 307, 308, 426

V. Fenee

I. 238

Gibbon v. Coggon I.

614, 647, 648; IL

V. riagg

n. 414,418

497

V. Gager

I. 223

V. Featherstonhaugh II. 220

v. Gorham 11. 154,

157, 161, 218

V. Scott

II. 529

V. Lee's Bank

U. 326, 363

Gibbs V. Cannon ]

.529; IL 137,139

V. M'Mahon

II. 654

V. Chisolm

II. 425

V. Maxey

I. 196, 215

V. Cunningham

II. 607

V. Walsh

IL 557, 582

V. Fremont I.

651 ; IL 371 372,

V. Watson

I. 240

395, 396, 399

Garforth v. Bradley

IL 448

V. Howard

IL 375

Garland v. Milling

II. 645

V. Merrill

L67

V. Salem Bank

L 246, 609

Gibson v. Conner

I. 223

Garlock v. Geortner

II.

265, 292, 293

V. Cooke

L 332, 333, 334 ;

Garner v. The State

II. 96

IL46

Gamett v. Macon

I. 250

V. Dickie

L 214

V. Woodcock

L 419, 641

V. Gibson

II. 532

Garrard v. Cottrell

IL 458, 487

V. Grosvenor

II. 650

V. Woolner

11.217

V. Hunter

L 32 ; II. 592

Garrells v. Alexander

II. 475

V. Irby

L 29; II. 528

Garrett v. Garrett

11.638

V. Minet I. 8, 33, 331 ; II. 4, 212,

V. JuU

I. 234

585

Garrison v. Combs

L 99

V. Peebles

IL 221

Garson v. Green

II. 167, 169

i;. Powell

L 18

Garth v. Ilobards

II. 635

V. Renne

IL 528

Gascoyne »'. Smith

208; II. 643

V. Stearns

11.412

Gass f. Stinson

II. 230

Gicnar v. Meyer

11. 319, 366

Gaters v. Madeley I. 87

; 11.446,447

Gilford, E.\ parte

II. 237

Gates V. Parker

1. 299

V. Allen

L 241 ; IL 245

Gaul V. Willis

II.

427, 428, 469

Gilbert r. Dennis I.

230, 371, 436, 450,

Gaunt V. Taylor

11.82

467,

470,471, 472, 477

Gautier v. Franklin

II. 628

Gilchrist i'. Ward

II. 222

Gautt V. Gautt

II 375

Giles V. Ackles

I. 198

Gay V. Lander

L 17, 20

V. Bourne

L 41,49, 386, 427

Gazoway v. Moore

II. .506

Gill i\ Cubitt L 258

II. 270, 271, 273,

Ga//,am v. Armstrong 1.314

317,318,320

275, 276, 277

Geary v. Physic

L 21 ; II. 16

Gillespie v. Cammack

L 537, 544, .545,

Geer v. Putnam

L 213

557

INDEX TO CASES CITED.

Gillespie v. Hannahan I. 371, 450, 451,452

453

V. Rosekrants II. 648

Gillet y. Fairchild I. 155

Gillctt i;. Averill I. 436, 437

V. Sweat II. 559, 577, 578

i^ Whitmarsh II. 503

Gillighaii V. Boardman II. 125, 128, 137,

142
Gillingham v. Gillingharn II. 628, 661
Gillispie V. Fort Wayne & Southern

R. R. Co. II. 438

Gillson's Case II. 583

Gilly V. Springer I. 311

Gilman v. Brown II. 167, 168

T. Cutts II. 633, 634, 635

v. Ilorseley I. 156 ; II. 446

V. Moore II. 507

V. Peck II. 103, 105, 107, 15.3,

193, 194

Gilmore v. Bussey " II. 152

V. Carr II. 458

V. Hague II. 486

Succession of, v. Bayly II. 615

Gilpin V. Enderby II. 422, 423

Gilson V. Gilson II. 532

Gindrat v. Mechanics' Bank I. 483, 514

Girard Bank v. Comly II. 522

Girarday v. Richardson I. 214

Gist V. Lybrand I. 450, 451, 483, 498

Givins v. Western Bank of Ga. II. 327

Glascock V. Rand I. 183

Glasfurd v. Laing 11. 412

Glasgow V. Copeland I. 337

JJ. Pratte 1.311,432,477,503,

505

V. Stevenson II. 162

V. Switzer II. 443

Glasscock v. Bank of Mo. I. 498, 503, 504

V. Smith 1. 146

Glazebrook c. Ragland 11.615

Gleason r. Moen 11.611

Glen Cove Mat. Ins. Co. v. Harrold

II. 129, 648

Glendinning, Ex parte I. 229, 241, 326 ;

II. 248, 249, 250

Glenn v. Noble I. 273 ; II. 59

V. Smith II. 161, 308

V. Thistle I. 483, 596, 601, 604, 620

Glcnnie v. Imri I. 211

Glossop V. Jacob I. 282 ; II. 488

Gloucester Bank v. Salem Bank II. 99,

101, 190, 195. 598

V. Worcester II. 233

Glover v. Gracser II. 394

V. Thompson II. 295, 296, 486

Glyn». Baker II. 33, 111, 112, 115, 116

Glynn v. Bank of England II. 287, 296.

297

Goad V. Hart 1. 109

Gobley. Gale II. 176

Godard v. Benjamin II. 458

Godbold V. Lambert II. 640

Goddard's Case I. 386

Goddard v. Co.\ II. 228

V. Cunningham II. 456

V. Cutts I. 51 ; II. 502, 509, 525

V. Hill II. 524

V. Hodges II. 226

V. Ingram II. 658

V. Lyman II. 5, 440

V. Merchants' Bank II. 38, 80,

284, 590

V. Pratt I. 168

Goddin v. Shipley I. 397, 399 ; IL 32C

Godin V. Bank of Commonwealth II. 81

Godley v. Godloe I. 493

Gogcl V. Jacoby II. 605

Goggerley v. Cuthbert IL 293, 435

Gold V. Phillips II. 132

Colder v. Foss II. 437, 454, 455

Gold-Hunter, The II. 170

Golding V. Grace II. 458

Goldsmid v. Lewis Co. Bank I. 222 ;

IL 275
Goldsmith v. Bland 1. 488

Goldstone v. Tovey I. 83 ; II. 489

Golightly V. Reynolds II. Ill, 267

Gompertz v. Bartlett II. 39, 187, 592

Gonder v. Estabrook II. 634

Gooch V. Bryant II. 550, 577, 580

Good V. Cheesman IL 217

Goodacre v. Breame II. 465

Goodall V. Dollcy I. 337, 533, 534, 536,

601

17. Polhill L317

V. Ray II. 604

V. Tucker II. 627

Goode V. Harrison I 77

Gooden v. Amoskeag F. Ins. Co. II. 641

IvJ

mDEX TO CASES CITED.

Goodenow v. Diiffield

z. Tyler
Goodered v. Armour
Gooding V. Morgan
Goodloe V. Godley
V. Taylor
Goodman v. Eastman
V. GrifBn

II. 92

II. 150, 151

II. 292

II. 152

I. 419, 435, 436

I. 40

II. 549, 565

I. 238

V. Harvey I. 258 ; II. 187, 272,

273, 277,437, 438

T. Munks II. 383, 384

r. Norton I. 510

V. Simonds (19 Misso.) I. 115,

224

V. Simonds (20 How.) I. 223,

255, 259 ; II. 278, 279

Goodrich's Case II. 210

Goodrich v. Barney II. 161

V. Buzzell II. 416, 420

T. Gordon I. 294

V. Stanley II. 46

Goodridge r. Koss I. 72

Goodsell V. Myers I. 67, 73, 76

Goodtitle v. Braham II. 476

Goodwin V. Coates I. 329 ; II. 183

V. Cremer II. 217, 219

V. Hazzard II. 83, 393

r. Jones II. 373, 374

V. McGehec 11. 620

Goodwyn v. Goodwyn II. 654

Goostrey v. Mead I. 644

Gordon v. Church II. 608

V. Drnry II. 4C

V. Phelps II. 372

V. Pitt II. 456

V. Price II. 153, 154, 157, 160,

204

V. Sutherland II. 561

Goro?;. Buck 11.303

T. Gibson I. 149, 151 ; II. fi, 403

Gorgcrat v. McCarty I. 358 ; II. 209

Go'gier z. Mieville II. 33, 36, 114

Gorliani v. Carroll II 470

Goshen, &c. Turnpike Co. v. Hurtiii

1.41,228,408

Goss V. Nelson I. 39

r. Nugent II. 526

Goudy V. Gillam IT. 657

Gough ». Davieg 11.201,229

c. Fiiidon II. 5

Gough V. Staats I. 271 ; U. 73

Gould z. Coombs II. 561, 568, 573

z. Fuller II. 253

z. Norfolk Lead Co. I. 117

V. Kobson II. 239, 240, 242, 245,
246, 247
V. Segec I. 115, 254, 280

Goulding, Ex parte I. 125

Goupy z. Harden I. 103, 268, 338, 340.
342, 344 ; II. 24
Gove z. Vining I. 582, 588

Governor z. Carter II. 92

Gowan z. Forster II. 654, 655

z. Jackson I. 264, 345, 502, 523,
524
Gower z. Moore I. 364, 447, 525, 530

Grace v. Smith II. 423

Graeff v. Hitchman I. 131

Grafton, The 11.170

Grafton Bank z. Doe II. 642

r. Flanders I. 122

V. Hunt U. 193

z. Kent I. 235; II. 515
V. Moore I. 640, 642, 643
z. Woodward I. 235 ; II. 529
Gragg z. Brown I. 290

z. Frye II. 620

Graliam v. Adams I. 47

V. Cox II. 84

TJ. Keys 11.649,651,656

V. Partridge II. 619

z. Sangston I. 436, 470, 471, 637
Grand Bank z. Blanchard I. 369, 509

Grand Gulf Bank v. Archer II. 433

z. Wood II. 52

&c. Co. z. Barnes I. 498,

499, 514
Grandin z. Le Boy I. 22G ; II. 28

Granite Bank z. Aycrs I. 362, 423, 446,
448, 460, 488, 489, 528
r. Ellis II. 445

Railway Co. v. Bacon II. 544

Grant v. Ashley II. 649, 657

V. Austen I. 291

z. Da Costa I. 193

V. Ellicott I. 184,326 ; II. 27

r. Hawkes I. 129

r. Ilealcy I 66-1 ; II. 370

V. Hotchkiss II. 141

z. Hunt I. 29! 293

INDEX TO CASES CITED.

Ivii

Grant v. Jackson
V. Long
V. Mills
V. Reid
V. Sliaw

II. 481
I. 374

II. 1G6, 1G8

II. 298

I. 28.5, 298, 302

V. Vaughan I. 10, 12, 177 ; II. 08,

111, 114, 269, 276, 280, 288,

480, 592

V. Welchnuin I. 200, 203

Graves v. Clark. II. 504

V. Dash I. 654 ; II. 342, 372

V. Hull II. 607

V. Key II. 472

V. Tucker I. 236

V. Wood II. 309

Gray, Case of II. 107

V. Adams II. 634

V. Bank of Kentucky I. 189 ; II.

438

V.Bell 1.268,378,381,382,383,

519, 520, 559

V. Brown I. 240; II. 249, 415,

416, 420

V. Donahoe I. 46

V. Fowler II. 155, 410

V. Givens II. 639

V. Handkinson I. 210

V. Kernahan 11. 266, 292, 293

X. Mendez II. 646

V. Milner I. 61, 62, 289

V. Palmers II. 477, 487, 590

V. Wood I. 41 ; II. 443,444

Greeley v. Thurston I. 411, 413, 417 ;

II. 213, 461, 462

V. Waterhouse II. 173

Greely v. Dow I. 240

V. Hunt I. 446

V. Smith II. 174

Green v. Ames II. 647

V. Darling I. 482, 487

■c. Davies 1.24,31

«. Deakin 1.125,127

r. Dodge II. 137

r. Drebilbia 1.381

V. Goings I. 309

V. Jackson I. 57, 220, 456

V. Morse 11. 415

V. Sarmiento 11. 359, 360

V. Skipworth I. 22

V. Stone II. 297

Green v. Sutton
Grcenawalt v. Kreidcr
Greene v. Ely

r. Farley
Grcenhow v. Boyle
Greening, Ex parte
Grecnleaf v. Cook

V. Kellogg
Grcenough v. Smead
Greenshields v. Crawford
Greenslade v. Downer

II. 465
1. 238

n. 176

1.483

I. 33

II. 5, 16

I. 210

II. 424, 463

II. 120, 121

II. 479

I. 138

Grecnstreet v. Carr II. 188, 263, 264
Grecnway, Ex parte II. 287, 296, 297,

299, 302

V. Hindley I. 614 ; II. 497

Greenwood v. Curtis II. 151, 321

V. Pattison I. 199

Greer v. Perkins 11. 95

Gregg V. Gregg II. 629

Gregory v. Allen I. 594

V. Howard II. 479

V. Hurrill II. 636

V. Paul I. 84

v. Pierce I. 85

V. Scott I. 210

V. Thomas II. 154

V Walcup I. 313

Grellier v. Neale II. 475

Greneaux v. Wheeler I. 256 ; II. 268, 275

Grew V. Burditt II. 604, 608

Grey v. Cooper I. 70 ; II. 3

Gricc V. Ricks II. 137

Gridley v. Dole U. 505

V. Rowland II. 169

Griffin V. Ashby II. 660

V. Chubb II. 618

V. Evans II. 610

?). Goff 1.373,401,596,598

V. The Justices II. 659

Griffing V. Harris II. 470

Griffith V. Cox II. 553

V. Reed II. 243

V. Williams II. 477

Griffiths r. Owen 11.151,154

Griffijn v. Jacobs I. 358

Grigby v. Oakes II. 91, 189, 620

Grigg V. Cocks II. 231

Griggs V. Howe I. 280 ; II. 11

Griggsby v. Hair 11. 168

Grimes v. Talbot II. 304, 305

I nil

INDEX TO CASES CITED.

Grimshaw v. Bender I. 56, 650, 653 ;

II. 341, 346

Grimstead v. Briggs II. 565

Griswold v. Davis I. 50, 224, 230, 260, 2S0

V. Pitcairn II. 330

V. Slocum II. 125

V. "Waddington I. 152

Grogan v. McMahon II. 603, 617

Grosvenor v. Flax & Hemp Manuf. Co.

II. 408
V. Stone I. 500, 540

Groth V. Gyger I. 526

Grotou V. Dallheim I. 529, 556, 595, 601
Grover v. Grover 11. 53, 54, 55, 446

Groves p. Stephenson I. 251

Grugeon v. Smith I. 468, 469

GrumHes v. Grumbles II. 630

Grundy v. Grundy II. 640

Grutacap v. WouUuise I. 664

Guardians of Lichfield Union v. Greene

II. 188

Guernsey v. Burns II. 437, 439

Guerry v. Ferryman II. 46

Guichard v. Superveile II. 647

Guidon V. Robson II. 440

Guignard v. Parr II. 642

Gullett V. Hoy II. 604

Gunn V. Brantley II. 629

V. Todd II. 606

Gunson r. Mctz I. 616, 618; II. 497

Gurly V. Gettysburg Bank I. 507

Gurney v. Behrend II. 34, 116

V. Langlands II. 476, 477

V. Womersley II. 37, 39, 187, 589

600

Gustine v. Union Bank I. 241

Gutteridge v. Smith II. 479

Guy V. Franklin II. 395

V. Harris I. 25

V. Hull II. 470

V. Tarns 11. 652, 653

Guyard v. Sutton I. 88

Gwinn v. Wliitakcr II. 227, 228

Gwinnell v. Herbert U. 25

Hackcnborry v. Shaw
Hackct r. Martin

n. 392
II. 472

Hackett v. Kendall
Haokley v. Sprague
Haddock v. Bury

r. Murray
Hadduck r. Wilmarth

II. 634

II. 420

I. 596

I. 456, 508

II. 470

Hadwen v. Mendisabal (2 C. & P. 20) II.

154, 308

T. Mendizabel (10 J. B. jMoore,

477) II. 151, 441

Hagedom v. Reid II. 495

Hager v. Boswell I. 507

Hagerty v. Scott II. 641

Hague ». French 1.41,49,386

Haigh V. Brooks II. 130

Haine v. Tarrant I. 70

Haines v. Dennett II. 467, 470

Hair v. La Brouse II. 507

Haldeman v. Bank of Middletown I. 131

Halden v. Crafts 11. 641

Hales's Case II. 584

Hale, Ex parte 11.613

V. Baldwin II. 364

V. Burr I. 364, 450, 525

V. Gerrish I. 72, 74

V. Lawrence II. 634

V. Russ II. 568

Halkctt, Ex parte 11.174

Hall, Ex parte II. 5

V. Cole II. 241, 247

I'. Commonwealth Bank 1.109

V. Constant " II. 222

V. Daggett II. 412

V. Davis II. 641

V. Farmer I. 44; IL 130

V. Freeman I. 596, 622

V. Fuller IL 80, 212, 285, 596

r. Gentry 11.454

V. Glidden II. 605

V. Green I. 570

V. llaggart II. 413

V. Hale L 2.58 ; IL 275, 276, 468

V. Hu.-;e II. 477

V. Marston I. 297 ; II. 62, 222, 223

r. Nasmith II. 635

V. Newcomb II. 123, 125, 520

r. Phelps 11.477

V. Rodgcra II 137

V. Smith I. 130, 247, 378, 382,

3^3, 519

r. Tufts I. .'32

INDEX TO CASES CITED.

Hall r. Vt. & Mass. R. R. Co. II. G.36

V. Wilcox I. 2.34

V. Wilson I. 115, 276 ; II. 275, 278

V. Wood II. 225

Halle V. Howell I. 371

Halliday v. MoDougall I. 57, 506, 634,

642 ; II. 324

V. Martinet II. 495

V. Ward II. 661

Hiillifax V. Lyle I. 321

Haliowell v. Page I. 659

Hallowell & Augusta Bank v. Howard

11.91

Halsey f. Carter 11.616

V. Salmon I. 516

Halstead v. Mayor of New York I. 165

V. Skelton I. 309, 425 ; II. 474

Haly V. Brown I. 478, 482, 487, 490, 491

V. Lane I. 84 ; II. 27

Hamber v. Roberts II. 479

Hamaker c. Eberley I. 198

Hameliii v. Bruck II. 331, 566

Hamer v. Harrell II. 406

V. Johnson I. 311, 366

Hamilton v. Le Grange U. 424

V. Myrick I. 45

V. Seaman I. 145, 147

V. Smith I. 471

V. Summers I. 128

Hammer v. Rochester 11. 228

Hammersley v. Knowlys II. 230

V. Purling II. 82

Hammett v. Yea II. 410

Hammond's Case II. 476

Hammond v. Aiken I. 131

V. Anderson II. 166

V. Chamberlin II. 119, 141

V. Dufrene I. 549

V. Hammond II. 647

r. Hopping II. 292, 420

V. Messenger II. 45

V. Plank II. 292

V. Smith II. 414

Hamor v. Moore II. 55

Hampshire Bank v. Billings I. 245

Hane« v. Miller II. 136, 139, 439

Hanchet v. Birge II. 510

Hanchett v. Gray II. 607

Hancock v. Bliss II. 649

V. Bryant I. 238

Hancock v. Fairfield
Hancock B:uik v. Joy
Handy v- Dobbin
Hank v. Crittenden
Hankey v. Hunter
V. Smith
V. Trotman
v. Wilson
Hankins v. Shoup
Hai'Jcs V. Deal

V. Dunlap
V. M'Kee
Hanrick v. Andrews

II. 519

1.81

II. 188

II. l?--

II. 226

II 605

I. 378; 11. 72

II. 486

II. 604

I. 70

11.31

II. 207

II. 379

V. Farmers' Bank I. 650

Hansard v. Robinson I. 230 ; II. 85, 215,
286, 287, 292, 294, 295, 296, 302, 311
Hansbrough v. Gray I. 229, 326, 558, 648
Harbeck v. Craft I. 273 ; II. 74

Harbert v. Dumont I. 240

Hnrbold v. Kuntz II. 649

Hardee v. Dunn II. 639

Harden v. Palmer II. 635, 636

Harden v. Wolf II. 542

Hardesty v. Newby II. 485

Hardie v. Mills II. 48

Harding v. Mott II. 469

Hardman v. Bellliouse II. 217

Hardwick v. Blanchard II. 466

Hardy v. Collector- General II. 150, 154
V. Corlis II. 618

v. Waters I. 71

V. Woodroofe I. 307, 427, 428

Hargous v. Laliens I. 661

Hargrave v. Duseuberry II. 38, 101, 186,

189, 600

Hargreaves v. Hutchinson II. 409

V. Michell II. 629

Harick v. Jones II. 431

Harker v. Anderson I. 407, 537 ; H. 57,

58, 59, 67, 71, 73

V. Brink II. 373

V. Conrad II. 227

Harlan v. Seaton II. 639

Harley v. Greenwood II. 155

V. Thornton II. 98, 103, 105, 193

Harlow v. Boswell II. 510

Harman r. Anderson 11.166

r. Lasbrey II. 466

Harmer r. Bell II. 170

V. Killing I. 73

INDEX TO CASES CITED.

Harmer *. Steele

II. 441

Harnor v. Groves

II. 524

Harnsbarger r. Kinney

I. 241

Harnsberger v. Geiger

245, 533

Harper r. Butler

II.

353, 374

V. Calhoun

I. 173

». Gilbert

11.24

V. Hampton

II.

318, 350

r. The State

II. 558

Barrel v. Bixler

I. 395

V. Petty

II. 609

Harrell v. Marston

I. 39

Harriman v. Hill

II. 444

Harrington v. Fry

II. 479

V. Inhabitants of Lincoln

11.479

r. Stratton I. 209

Harris v. Alexander I. 483

V. AUnutt I. 601, 604, 620

U.Boston 11.407,441

r. Brooks I. 233, 235, 242, 250 ;

II. 503, 515

V. Caston II. 509

V. Clark I. 179, 290, 331, 332, 335,

363 ; II. 55, 56, 59, 60

V. Farwell II. 200

V. Lindsay II. 200

r. MandeviUe IL 326, 361, 369

V. Memphis Bank I. 494

V. Packer I. 362, 365, 426

r. Pierce 11.519

r. Robinson 1.490,491,505

r. Roof I. 214

V. Shipway II. 264

V. Wall I. 67, 72, 77

v. Warner II. 2.53

Harrisburg Bank v. Forster II. 469

Harrison v. Close I. 2.50

y. Courtauld L 229, 326 ; II.

248, 249, 250

r. Crowder 1.419,435

V. Dickson II. 399

V. Edwards II. 339

V. Fane I. 68

I'. Ilnnncl II. 415, 420

r. Henderson II. 608

V. Ruscoc I. 473, 476, 499, 504,

505

V. Stacy II. 383

r. Sterry II. 319, 360, 362

Harrison v. Williamson I. 300, 336

V. Young II. 361

Harrow v. Dugan I. 25 ; II. 450

Harryman v. Robertson II. 301

Harsh v. Hanauer II. 627, 644

Hart V. Alexander II. 200

V. Boiler IL 154, 160, 204, 218

V. Dewey II. 223

V. Dorman II. 228

»;. Green L 309, 311,432

V Hudson L 241 ; IL 130, 135, 141

V. King IL 290

P.Long L 311, 596, 598, 610

V. M'Intosh II. 468

V. Missouri State Mat. F. & M.

Ins. Co. L 165 ; IL 619

V. Nash IL 655

V. Palmer IL 493

r. Potter I. 189

V. Prendergast IL 649

V. Smith L 405

V. State IL 588

V. Stephens L 87, 88 ; IL 447

V. Wilson II. 495

». Windle L 358 ; IL 442

Harter v. Comstock IL 624

?;. Moore L 241 ; IL 533

Hartford Bank r. Barry I. 173, 358,

359, 385 ; II 209

V. Hart I. 478 ; IL 492,

594

V. Stedraan L 358, 483,

509

Hartley i'. Case L 416, 466, 469, 516 ;

II. 214

V. Hitchcock II. 165

r. Manton L 328 ; IL 236

V. Wilkinson I. 43 ; II. 539

Ilartman v. Burlingamc I. 237

Hartness v. Thompson I. 249, 250

Ilartop V. Hoarc II. 158

Hart's Case L113

Hartsliorn v. Green IL 438

Ilartwell v. Candler I. 432

Harvey, Ex parte I. 241

V. Archbold IL 376, 378

T. Kay I. 62

V. Laflin IL 51 S

V. Martin ] 282, 284

V. Sweusy I. 248

INDEX TO CASES CITED.

Ixi

Harvey v. Towers I 188

; II.

283, 493

Ilaxtun I'. Bishop I. 309

310, 430, 431 ;

V. Troupe

.596,

597, 608

II.

88, 91, 44.5, 604

Harwell v. Steel

II.

615, 646

Hay V. Goidsmid

I. lOG

Harwood v. Jarvis

545, 647

Hayden v. Johnson

II. 651)

V. Kiersted

II. 126

Ilaydock v. Lynch

I. 43

Hasbrook v. Palmer

1.47

IIav<lon V. Williams

II. 648, 654

Hascall v. Whitmore

I. 261

Hayes v. Ward

I. 242

Hasey v. White Pigeon B

. S

Co.

I. 63,

Havling v. Mulliall

II. 234

288

Haynes v. Bccknian

I. 171

Raskins w. Dunliam

II. 94

r. Birks I. 514, 515, 516; II. 213

Haslett V. Eliriek

51.5

; II. 251

V. Foster 1. 119;

11.265,271,293

i\ Kunhardt

I. 445

V. Harrison

II. 223

Hastings v. McKinley

II 53

V. Prothro

II. 605

V. Wiswall

II.

424, 425

V. Thorn

I. 178; II. 624

Hatch V. Dennis

II. 472

Hays V. Cage

II. 627

V. Dickinson

II. 570

V. M'Clurg

II. 308

V. Searles I. 109,

258

; II. 271

V. Mouille

II. 178

V. Spearin

II. 530

V. Stone II

. 154, 161, 218

V. Spofford

II. 636

Ilayward v. Hapgood

II. 638

T. Trayes

I. 193

V. Hayward I.

86, 87 ; II. 447

Hatcher v. Hatcher

II. 167

V. Lc Baron

II. 406, 434

V. McMorine

II,

336,

339, 340

Haywood v. Chambers

I. 216

V. Stalworth

I. 285

Hazard v. Loring

n. 623

Hatchett v. Baddeley

1.78

V. Smith

II. 420

Hatfield v. Perry

n. 495

Hazelbaker v. Reeves

II. 652

Hathaway v. Haskell

II. 658

Hazelhurst v. Kean

II. 339, 342

Hatten v. Robinson

11.94

Ilazelton Co. v. Ryerson

I. 478, 497, 498

Hatz V. Snyder

II. 471

Head v. Sewell

I. 306

Hauck V. Hund

II. 502

Heald v. Warren

II. 153

Haussonllier v. Hartsinck

I. 44 ; II. 22

Healey v. Story

I. 170

Haven v. Ilobbs

. 92, 200

Healy v. Oilman I. 552

; II. 71, 83, 84

V. Hudson

11.411

V. Gorman

II. 371, 379

Havens v. Huntington

II. 95

Heath, Ex parte I. 534, 543, 555, 557

V. Talbott

I. 584

V. Chilton

I. 156

Haviland v. Bowerbank

II. 392

V. Hall

II. 53

Hawes v. Armstrong

II.

128, 130

V. Key

I. 237

V. Dunton

I. 125

V. Percival

II. 199

Hawkes's Case

. 61, 289

V. Sansom ]

. 18.5, 186, 187 ;

Hawkes v. Phillips

II.

121, 126

II. 266, 493

V. Salter

482, 512

Hcaton v. Ilulbert

II. 132, 137

Hawkeswood's Case

II. 583

Heaverin v. Donnell

I. 301 ; II. 509

Hawkey v. Borwick

1.427

Hebden v. Hartsink

II. 182, 436

Hawkins v. Barney

II. 381

Ileckcrt's Appeal

II. 629

v. Fcllowes

II. 564

Heckscher r. Binney

II. 518

V. Ramsbottom

I. 247

Hedger v. Horton

II. 471

r. Rutt I. 481 ;

100,

316,492

V. Steavenson

I. 468, 469

V. Tiiompson

II. 244

Hedges v. Sealy

II. 46. 604

V. Watkins

1.47

Hcdley v. Bainbridge

I. 138; II. 478

Hawley v. Foote

. 86, 159

Hcffclfinger v. Shutz

II. 577, 579

V. Sloo

II. 376

Heffncr r. Wenrich

II. 550, 577

Ixii

INDEX TO CASES CITED.

Hefford t. Morton
Heilbron r. Bissell
Hellings v. Hamilton
Helme c. Middleton
Helmsloy v. Loader
Helps V. Winterhottom
Hemings v. Robinson
Hemmenway r. Bradford
V. Stone

II. 240, 533

II. 224, 228

II. 98, 107

I. 449 ; II. 87, 206

II. 479, 480, 489

II. 642

II. 486

11.94

I. 251, 264;

II. 215, 560
II. 218, 219

II. 580

Hemming v. Brook

V. Trenery

Hemp V. Garland U. 644

Hemphill r. Bank of Alabama 1.109

V. Hamilton I. 155

Hempstead v. Reed II. 359

Henderson v. Anderson II. 468

V. Appleton U. 105, 183

V. Australian Royal Mail

Steam Nav. Co. I. 1 63

V, Fox

». Gillian
V. Irby
v. Johnson
V. Lewis
j;. McDuffee
V. "Wilson

L 68
II. 609
II. 266
IL 128
II. 609
II. 253
II. 550

Hendricks v. Franklin I. 654 ; II. 342, 371

V. Judah I. 381 ; II. 9

Henfree v. Bromley II. 574

Honly ». Strceter 11.621

Hcnman v. Dickinson II. 549, 577

Hcnning v. Werkheiser 11. 554

Henriques v. Dutch W. L Co- IL 358

Henry v. Bishop II. 477

r. Coleman IL 540

T. Flagg II. 424

V, Hazen I. 45

V. Jones L 373, 385, 386

V. Lee L 419

r. Raiman IL 623, 626

V. Sargcant IL 327, 869

V. Scott I. 255

r. Thorpe II. 633

IIcnHchcl r. Malilcr 1.41

Henshall v. Roberts L 155, 156

Hcnshaw v. Coc IL 244

V. Liberty M. F. & L. Ins. Co.

L 310

Hepburn v, Iloag IL 605

Hepburn v. Ratliff I. Onr t98

V. Toledano I. 455, 458

Herbert ». Huie I. 1 1 0, 1 1 1 , 11 5

Herd». Bissel IL 511

Herkimer County Bank v. Cox I. 634

Hern v. Nichols I. 273

Herndon v. Givens IL 304

Herrick v. Bennett I. 381

V. Borst L 235, 237

V. Carman II. 120, 443, 459

V. Malin IL 582

V. Orange Co. Bank I. 246

V. Whiting IL 600

V. Whitney IL 37, 38, 482, 485,

589

Henies v. Jamieson II. 424

Herring v. Dorell I. 198

17. Sanger II. 200

Hertle v. Schwartze IL 629

Hervey v. Harvey II. 550, 571

Hesketh v. Fawcett I. 245 ; II. 621

Hess V. Werts II. 89

Hestres v. Petrovie I. 499

Hetficld V. Newton IL 411

Hcthcrington v. Kemp I. 481 ; II. 491,

496
Ileubach r. MoUmann I. 104

Hcvencr v. Kerr II. 92

Hevey's Case IL 583

Hcwet V. Goodrick I. 245 ; II. 240, 533
Hewett V. Buck II. 170

Hewitt ('. Thompson I. 483

Hewlett V. Hewlett II. 634

Ileydon v. Thompson II. 494, 580

Heylyn t). Adamson 1.443; IL 181

Heys V. Heseltino II • 489

Hcytlc V. Logan II. 406

Ilcyward v. Lomax II. 227

Hey wood v. Ferrin IL 146, 512, 540.

541, 542
r. AVaring IL 165

Iliatt V. Hough II. 645

V. Simpson II. 519

Hibblcwhite v. M'Morine II 35, 36

Ilickerson r. McFaddin 11.018

Ilickling V. Hardey I. 329, 339, 351 ; II.

154, 15.'i

Hickman v. Rcincking I. 125

V. Ryan I. 50J

Iliciok r. Ilickok 11. 63)

INDEX TO CASES CITED.

Ixiii

Hicks V. Brown II. 326, 336, 343, 346,

347, 359, 371

V. Duke of Beaufort I. 604, 614,

618

V. Hinde I. 94, 96

V. Hotchkiss II. 361

V. Lusk II. 658

Hidden v. Bishop II 143

V. Cozzens II. 651

Higgens's Case 11. 154

Higgins V. Mcrvin II, 412

V. Morrison II. 31 7, 502, 596, 621

V. Nichols I. 425

V. Packard II. 179, 217

V. Scott II. 631

V. Watson I. 44 ; II. 125, 302,

303, 305

Higginson v. Gray I. 199

Higgs V. Holiday II. 110, 1 13

j;. Warner II. 647

Highmore v. Primrose I. 194

Uightower v. Ivy I. 446, 529, 584 ; II.

246, 501
Hildeburn v. Turner I. 645

Hill r. Beebc II. 159

V. Bostick II. 247

V. Buckminster I. 179

V. Bull II. 240

V. Butler II. 610

V. Calvin 11. 577

T. Crary II. 484

r. Ely 11.519

T. Gaw II. 69, 504

V. Gayle II. 220

V. George II. 376

V. Halford I. 39

V. Heap I. 338, 584, 630 ; II. 73

r. Josselyn II. 663

V. Kendall II. 652, 660, 661

V. Kroft I. 256, 260

r. Lackey 11.301,305

V. Lewis I. 391 ; II. 45

V. Martin I. 537, 630

V. Meeker II. 424

V. Norris I. 538, 539, 545, 546

V. Norvell I. 385, 490

». Planters' Bank I. 514

V. Southerland II. 224, 226

V. Sweetser L 232

r. Tucker II. 627, 643

Hill V. Vanell
Hilliard v. Walker
Hills V. Bannister

V. Barnes
Hilton V. Burley

V. Fairclough
V. Shejjherd
V. Smith
Hinchman v. Lybrand
Hinckley v. Marccur
Hindle v. O'Brien

I. 490, 491, 492

II. 607

I. 97, 169, 209

II. 565, 576, 577

II. 224, 226, 22:

I. 51.1

I. 269, 504, 507

II. 44, 494

IL 176

II. 367

II. 416

Hine v. Allely I. 427, 435, 438, 457

r. Handy 11.410

Hinely v. Margaritz I. 73, 74

Hinesburgh v. Sumner I. 215

Hinsdale u. Miles L 368; II. 261, 287,

288, 298

V. Orange Bank I. 231 ; II. 93,

100, 293, 297, 298, 303, 309, 312

Hinsdill v. Safford L 260

Hinton's Case II. 266, 268

Hinton v. Bank of Columbus I. 323

Hitchcock V. Aicken II. 323

V. Cloutier I. 24

V. Humfrey II. 137

Hoadley v. Bliss I. 594 ; II. 655

Hoar r. Clute II. 154

V. Da Costa I. 263

Hoard v. Garner I. 481

Hoare v. Allen I. 152

V. Cazenove I. 316

V. Graham I. 301, 584 ; II. 503,

529

Hobart v. Conn. Turnpike Co. II. 644

V. Dodge I. 39

Hobson V. Davidson H. 162, 205

Hoch's Appeal II. 630

Hocker v. Jamison II. 550

Hodcnpyl v. Vingerhoed II. 478

Hodgdon v. Chase II. 648

V. Hodgdon II. 397

Hodge V. Fillis L 306, 615

V. Manley II. 647

Hodges V. Eastman II. 477

V. Gait I. 495

V. Hall I. 45

r. Shuler 11.147,149,319,326

V. Steward II. 25

Hodgkins v. Bond II. 131

Hodgkinson r. Wyatt II. 401

Ixiv

INDEX TO CASES CITED.

Hodgson's Case
Hodgson r. Loy

r. Temple
Hoff V. Baldwin
Hoffman r. Coombs

r. Smith I.
Hogaboom v. Herrick
Hogan V. Cuyler
Hogatt V. Bingaman
Hogg V. Snaith
Hoggatt V. Wade
Hoit V. Underbill
Holbrook v. Lackey

V. Mix I.
V. Vibbard
Holbrow V. Wilkins
Holden's Case
Holden v. Cosgrove

V. Pollard
Holdsworth v. Hunter
Holeman v. Hobson
Holiday v. Sigil
Holl r. Hadley
Holland v. Chaffin

V. Chambers
V. Harris
T. Hatch
V. Jourdine
V. Mosteller
V. Turner I
Hollenbcck v. Shutts
HoUey i;. Adams
V. Youngc
Holliday v. Atkinson

Hollicr V. Eyre I.

HoUis V. Claridge

V. Palmer H.

Holly V. Adams

Holman v. Criswell
r. Johnson
V. Whiting

Holme V. Barry
i>. Green
V. Knrspcr

Holmes r. Burton
V. D'Camp
T. Dole
V. Holmes
r. Kcrrison

II. 587
II. 178
I. 215
II. 496
n. 247
534, 537, 544, 545

I. 237, 240

I. 404
I. 483

I. 106
II. 168

I. 76
II. 608
258; II. 275, 278
II. 336
II. 139
II. 585

I. 279
II. 409

I. 59 ; II. 332

I. 191
II. 264, 265

II. 135
II. 655

II. 416, 420, 471
11. 457
II. 573
II. 458
II. 424

529, 556, 557, 571
II. 502

II. 55
II. 606

1.66, 178, 191,

197; II. 55

234; II. 515, 533

II. 165

397, 648, 654, 6.56

I. 179

II. 630
II. 319, 321, 3.30

I. 569

II. 184

II. 656

I. 189; II. 493

I. 131

II. 151, 308

I. 239
II. 623
II. 644

Holmes r. Porter I. 128

V. Remsen II. 387

V. Staines I. 615

V. Williams II. 419

V. Wilson II. 436

Holt V. Miers II. 503

r. Moore II. 509

V. Salmon II. 336

V. Squire II. 477

V. Ward I. 66

Home Ins. Co. v. Green I. 474

Homer v. Wallis II. 554

Homes v. Smith (20 Maine) I. 401

V. Smyth (16 Maine) 1.221, 383;

II. 495

Homniell v Gamewell I. 243

Honeycut v. Strother II. 530

Honore v. Colmesnil II. 91, 193

Hooker v. Gallagher II. 448

Hooper r. Spicer II. 611

V. Stephens II. 655

V. Williams I. 17, 18, 21

Hoopes V. Newman I. 493, 511

Hope V. Alley II. 642

Hopes V. Alder I. 269, 507, 596, 597, 612

Hopkins v. Boyd

V. Crittenden
V. Hopkins
V. Liswell
v. Megguire
V. Railroad Co.
V. Wri-rht

I. 125, 261

II. 396

II. 641

I. 595, 597, 601

II. 607, 616

I. 26

II. 631

Hopkirk v. Page L 460, 531, 537, 539,

540, 546

Hopley V. Dufresne I. 596, 601, 603

Hopper r. Eiland I. 48 ; II. 501

V. Richmond II. 392

V. Sisk II. 244

Hopping V. Quin I. 411

Horah v. Long II. 451

Hordern v. Dalton II. 316

Horford v. Wilson L 615

Horn V. Fuller L 133, 199

V. Nash II. 393

Horncastle v. Farran II. 169

Home V. Bodwell I. 235, 239

V. Redfearn 1 24

Horner r. Pilkington II. 624

V. Speed II 660

Horton i;. Frink H 244

INDEX TO CASES CITED.

Ixv

Hortons v. Townes I. 115

Hortsman v. Hcnshaw 1. 322, 323 ; II.

592

Hosford V. Nichols II. 376, 377

Hosier v. Arundell I. 155

Hostler's Case II. 165

Hough V. Barton II. 290, 291, 293, 309

V. Gray I. 44; II. 119, 130

V. May II. 85

Houghton V. Adams II. 103, 193

V. Houghton II. 618

V. Mann II. 637

V. Maynard II. 364

V. Page II. 318, 359, 376

r. Payne II. 419

Houldltch V. Cauty I. 596, 618

Houpt V. Shields II. 646

Houriet v. Morris II. 8

Housatonic Bank v. Laflin I. 466, 471,

473, 509, 510

Housego V. Cowne I. 473, 477, 493, 500

Houston V. Fellows II. 618

Houx V. Russell II. 94

Hovey v. Magill I. 97

How V. Hall II. 292

v. Kemball II. 132

Howard v. Ames I. 275

V. Baillie I. 106

V. Brown I. 237

V. Central Bank I. 664

V. Ives I. 509, 510, 515

V. Oakcs I. 88; II. 446, 447

r. Shepherd II. 34, 116

V. Thomas II. 161

V. Witham I. 210

Howcutt V. Bonser II. 652

Howe r. Bowes I. 306, 427, 458

V. Bradley I. 373, 471, 494 ; II.

397, 425

V. Merrill II. 124, 589

V. Nickels II. 137

V. Saunders II. 637, 654, 662

V. Thompson II. 545

V. Ward I. 244

V. Wildes I. 78

Howell V. Burnett II. 635

V. Crane I. 261

V. Hair 11.^633, 640

V. Jones II. 135

V. Wilson II. 348, 589

Vol. l.—E f*

Howland v. Pench
Howlett v. Holland
Hoy V. Taliaferro
Ilovt V. French

II. 222

II. 624

I. 210

II 508, 53.7

V. Seeley I. 273, 552; II. 59, 73

V. Wilkinson II. 4.W, 454

Hubbard v. Davis I. 237

V. Fisher II. 606

V. Page II. 177

V. Troy I 509, 643

V. Williamson II. 544

IlubbcU V. Coudrey II. 382

Hubble r. Fogartie I. 193, 537

Hubbly V. Brown II. 239, 246, 248

Huber v. Steiner II. 327. 383, 385

Hubley v. Tamney H- 605

Hubner v. Richardson I. 217

Hudson V. Barton II. 214

V. Fawcett II. 394

V. Goodwin II. 439

V. Matthews I. 394

r. Weir II. 471

Huey's Appeal II. 349

Huff V. Mills I 260

V. Richardson II. 649, 651, 652

Huffiim V. Ellis I. 426

Huffman v. Hulbert I. 237, 239

Hughes V. Harrison II 53

V. Hind II. 220, 488

V. Kearney II. 166, 167

V. Large II. 604

V. Wheeler II. 151, 160, 308, 410

V. Wynne II. 629

Huie V. Bailey II. 246

Hulett V. Soullard I. 243

Huling V. Hugg I. 14

Hull V. Blake II. 386, 387

V. Peters II. 621

V. Pitfield II. 215

Hulme V. Coles I. 239, 241 ; II. 241

Hulse V. Hulse I. 197

Humbert v. Ruding I. 186

Hume V. Peploe I. 415; II. 214, 624

Humphrey v. Clark I. 279, 280

V. Moxon II. 466, 467

Humphreys v. Collier II. 336

V. Crane I. 233, 237 ;

II 561, 580

V. Guillow I. 2.^1 ; II. 560,

566, 577, 582

Ixvi

INDEX TO CASES CITED.

Humphrej-s v. J'ones
Humphries v. Bicknell
V. Cliastain
Hunt V. Acre
V. Adams

V. Aldrich
V. Alewyn
V. Boyd
V. Bridgham

V. Edwards
V. Ellison
V. Fish
V. Livermore
r. Massey
V. Maybee
r. Nevers
V. Rousmanier
V. Sandford
V. Stewart

II. 652

II. 59, 71

I. 146

II. 416

I. 37, 233, 247, 251 ;

II. 132, 511, 565, 568

II. 445

II. 286

II. 162

I. 237 ; II. 240, 242,

245, 247, 533

II. 469

II. 639

I. 495

II. 535

I. 67, 72, 74

I. 358, 365, 528, 641

II. 393

I. 288 ; II. 42, 503

II. 275, 276

II. 480

V. United States II. 241, 246

V. Wadleigh I. 446, 529, 595, 601 ;

11.14

Hunter, The
Hunter's Case
Haater, Ex parte

V. Blodget

V. Jeffery

V. Jett

V. Kibbe

V. Potts

V. Van Bomhorst
V. Warner
Huntington v. Branch Bank

V. Fincli
V. Ilarvcy
v. Lyman
V. Ziegier
Huntley v. Sanderson
Hunton v. Iiigraham
Huntress v. I'alten
Hurd V. Little
Hurry v. Mangles
Hurst V. Beach
Husband v. Davis
Huse V. Alexander
Hussey v. Freeman

IL 174

I. 62

IL82

L 32

I. 33 ; II. 50, 592

IL 240, 533

I. 255 ; IL 209, 220,

456, 460

II. 326, 359, 387

I. 436, 471

II. 623, 625

L 109, 111,

115

IL 559, 577

IL 244, 520

I. 126

IL 621, 624

II. 639

I. 303
IL 415

IL 246, 247
II. 165

I I. .54
II. 82

151, 204, 218
I. 590

Hussey v. Jacob I. 313

V. Manuf. & Mechanics' Bank

IL 222

Huston V. Moorhead
I'. Noble
V. Young
Hutchins v. Hanna
V. Hope
V. M'Cann
V. Okutt

Hutchinson v. Boggs
V. Hosmer
V. Moody
V. Phillips
Huthwaite v. Phaire
Hutton V. Bragg
V. Eyre
V. Ward
Hyams v. Levy
Hyde v. Fin ley

V. Goodnow
V. Johnson
V. Paige
V. Price
V. Stone
Hyman v. Gray
Hyslop V. Jones

II. 423

II. 96

L 41,388; IL 514

II. 330

IL 618

II. 428

IL 153, 161, 165,

177, 218

I. 189

IL 407

II. 9, 10

IL 94

IL 374

IL 165, 171

L 250 ; II. 238

IL 286, 310

IL 528, 530

IL 406

IL 328, 376, 380

IL 661

I. 93

L 78

I. 622, 62G

IL 641

L 482, 484, 487, 488

Ide r. Ingraham I. 145

Ihmsen v. Negley I. 127
Ilsley V. Jewett L 243 ; IL 151, 155, 655

V. Stubbs IL 178
Imbush V. Mechanics', &c. Bank II. 103

Imcson, E.x parte I. 46

Imlay v. Ellcfsen IL 367, 369

Indiana v. Woram I. 166

Ingalls j;. Lee IL 428

IngcrsoU v. Long IL 348

Ingleliart v. Armiger IL 168

Inglis V. Ilaigh IL 648

V. U.shenvood IL 319

Inglish v. Brcneman II. 552, 565

V. Watkina IL 392

Ingraham v. Bowie II. 635

V. Foster II. 60S

INDEX TO CASES CITED.

Ixvii

Itif^raham v. Gibbs
Ingram v. Forster
Inli. of Hardwlck's Case

I. 59

I. 348

II. 656

Jackson v. King
V. Malin
V. Newton

II.

I. 15C

572, 574

I. 37?

Innes v. Dunlop

II.

357, 358

V. Osborn

11.577

V. Munro

II.

144, .536

V. Packer I.

310

, 439

; II. 470

V. Stephenson

II. 82

V. Parks

I. 89

Ipswich Man. Co. v. Story

I. 162

V. Phillips

II. 477

Irchmd v. Kip
Irisli V. Cutter

I.
II.

482,
121,

487, 488
124, 133

V. Pigott
V. Richards

401,

1.289
402, 508,

V. Webster

II. 452

515,

529, 556

Irons V. Irons

II. 611

V. Tuttle

11.415

Irvin V. Maury

I. 13

V. Union Bank

395, 480

Irvine v. Lowry

I. 47

V. Van Dusen

I. 150

r. Withers

310,

311, 432

V. Warwick

I. 203

Irving V. Veitch

II.

644,

654, 655,

Jacob V. Hart

II. 570

Irwin V. Planters' Bank

661
II. 297

V. Hungate
Jacobs V. Adams

188

; II. 494
n. 393

Isaac V. Daniel

II.

242, 245

V. Benson

1.32

Isaacs V. Elkins

II. 513

V. Hart

II.

547, 565

Isberg V. Bowden

II. 607

V. Town

1.488

Isbvester, Ex parte
Isett V. Hoge

II. 185
II. 138

Jaffray v. Dennis
V. Frebain

II. 372
1.77

Isham V. Fox

1.393

JafFrey v. Cornish

II. 161

Isler V. Baker

I. 135

James v. Allen II. 359,

367,

369, 371

Isnard v. Torres

1.276

James v. Badger II.

241,

246,

247, 25C

Israel v. Douglas

1.336

77. CatheiTVOod

II.

318, 330

V. Israel

1.25

V. Chalmers

II. 437

Iverson v. Dubose

n. 663

V. Child
V. Hackley
V. Williams
Jameson v. Swinton

II. 231

n. 160

II. 154

504,515

Jamison v. Brady
Jane. The

n. 615
n. 174

Jacaud v. French

I. 134 ; II. 253

Janson v. Thomas

1.405

Jackman v. Hallock
Jacks V. Darrin

584;

n. 167

tl. 44, 72,

300, 309

January v. Goodman
Jaques v. Marquand
Jardine v. Payne

II. 475

I. 124

n. 573

V. Nichols n

328, 337

379, 434

Jarrold v. Howe

11.394

/ackson v. Adamson
V. Bard

II. 638
n. 472

Jarvis's Appeal
Jarvis v. McMain

I. 393,

II. 415
404, 408

V. Collins
V. Fairbank

1.626
II. 661

V. Rogers

V. St. Croix Manuf.

Co.

11.43
I. 478,

V. Frier

II. 298

479

V. Gumaer

I. 151

Jefferies v. Austin

1.51,177

V. Heath

n. 437, 445

Jefferson v. Holland

107,

192, 194

V. Henderson

1.410

Co. Bank v. Chapman

II. 88,

V. Hudson

I. 3ia

; II. 125

91, 98

V. Jackson
r. Jacoby
V. Jones

. 297, 306
II. 580
II. 420

JeflFery r. M'Taggart

V. Walton
Jcfts V. York

II.

356, 358

II. 518

I. 122

Ixviii

INDEX TO CASES CITED.

Jenkins v. Clarkson I. 241

V. Hutchinson I. 313

V. Morris I. 124, 135

V. Reynolds II. 128

Jenks V. Alexander II. 228

V. Doylestown Bank I. 435, 437

Jenkyns v. Usborne II. 178

Jenners v. Howard I. 151

Jenness v. Bean I. 224, 225

V. Parker I. 210

Jenney v. Herle I. 43

Jennings v. Ins. Co. of Penn. II. 173

V. Mendenhall II. 621, 622

z>. Thomas II. 121

V. Throgmorton I. 214

Jennison v. Parker II. 153, 182

V. Stafford I. 198

Jenys v. Fawler I. 321 ; II. 99, 196, 482,

590
Jerome v. Stebbins I. 264

». Whitney I. 45

Jerrey v Strauss II. 610

V. Wilbur I. 446, 529, 587, 610
Jester v. Hopper II. 515

Jeuue V. Ward I. 70, 281, 282, 284, 285 ;

11.3

Jewell V. Van II. 488

Jewett V. Davis II. 466

V. Petit II. 654

John V John II. 286, 292

Johnson, Ex parte I. 500

V. Arnold II. 645

u. Bank of U. S. II. 562

V. Barney I. 26, 226

r. Blasdale I. 109; II. 567

v. Bridge II. 604

V. Chad well I. 150; II. 6

V. Cleaves II. 160, 179

r. Cocks I. 646

r. Collings I. 285, 292, 295 ;

II. 62

V. Duke of Marlborough II. 550

V. English I. 358

V. Evans II. 649

r. Gamett II. 573

V. Gibb II. 573

V. Gilbert II. 132

V. Groathcy II. 168

V. Ilarth I. 447, 508, .5.30

r. Hcagan II. 546

Johnson v. Johnson I. 25 ; II. 152, 154, 410

V. Jones II. 605

V. Kennion I. 192 ; II. 218

V. Kent II. 609

T. Machielsne II. 319

V. Marlborough II. 577

V. Martinus II. 24, 519

V. Mason II. 489

V. Mathews II. 491

V. Meeker I. 279

V. Planters' Bank I. 237

V. Smith I. 97, 122; II. 319,

628, 629

V. State II. 588

r. Thayer I. 335

V. Thompson II. 1 67

V. Titus I. 205

r. Weed 11.150,157,162,217

V. White II. 639, 640, 642

V. Wilmarth II. 127, 137

V. Windle II. 80, 212, 268, 284

Johnston, Ex parte I. 528, 530

V. Brannan II. 397

V. Dickson I. 218 ; II. 407

V. Searcy I. 576

Joiner v. Perry II. 638

Jolliffe V. Collins I. 20G

Jolly V. Young I. 384

Jones, Ex parte II. 410

V. Arthur II. 85

V. Ashburnham I. 196

V. Beach I. 246

V. Borden II. 663

i;. Broadhurst 11.72,216,218

V. Brooke I. 229, 326; II. 458,

465, 466, 467, 471

V. Bullitt II. 240

V. Darch I. 70, 321

V. Deycr I. 179

V. Falcs I. 46, 368, 393 ; II. 146,

298, 309, 516, 540, 541, 578

». Fort I. 361 ; II. 210, 220

V. Godwin II. 630, 634

V. Hays II. 635

V. Hibbcrt I. 191 ; II. 44

T. Hook JI. 327, 381, 383

V. Ireland II. 577, 580

V. JclTrics II. 519

r. Jones I. 198, 228 ; II 479, 6;30,

631, 662

INDEX TO CASES CITED.

Ixis

Jones 0. Kennedy

II.

151, 218

V. Kilgore

II. 228

V- Le Toinbe

L 98

V. Lewis

L483

V. McLean

IL411

V. Manskei

L488

V. Mars

IL 480

V. Marsh

IL 492

V. Morgan

L 426; IL 473, 479

c. O'Brien

615, 618

V. Pierce

IL 137

V. Radford

IL4

V. Ransom

IL 153

V. Robinson

IL 614

V. Ryde IL 37, 38, 101, 184, 185,

189, 589, 600, 601

V. Ryder IL 573

V. Savage I. 596, 601, 606, 619,

621, 622; IL 182,497

V. Scott II. 629, 662

V. Simpson I. 38

V. The State II. 588

V. Swan II. 493

V. Thorn II. 7

V. Turnour II. 474, 482, 590

V. United States II. 225

V. Warden L 478, 486, 515, 517,

531

V. Warren II. 447

V. Witter II. 47, 53

V. Yates I. 134

Jordaine v. Lashbrooke 11.465,469, 471

Jordan v. Bell I. 662

V. James II. 164

V. Jordan IL 605

V. Lewis II. 414

V. M'Kenzie II. 639

V. Neilson II. 567

V. Tarkington I. 323

V. Thornton IL 455, 634

V. Trumbo L 237; IL 416

Jose V. Baker II. 151

Joseph E Coffee, Steamboat IL 175

Joslyn V. Smith IL 658

Josselyn v. Ames IL 117, 119, 124

V, Lacier I. 43

V. Stone IL 663

Journeay v. Gardner II. 364

Joyce V. Williams I. 126

/oyner v. Turner IL 393, 395, 504

Judah V. Harris L 46 ; II. 189

Judd V. Sampson II. 6.t7

Jud.son V. Corcoran IL 46

Judy V. Gerard 11. 414, 434

Julian V. Shobrooke I. 285, 301

Jungbluth V. Way IL 308

Juniata Bank v. Hale I. 364, 445, 503,
504, 525, 526, 630

Jury V. Barker II. 146

Ju.stin V. Ballam II. 170

Justus V. Cooper IL 570

Kaines v. Knightly II. 503

Kalfus V. Watts I. 38

Kampshall v. Goodman II. 652, 654
Kanaga v. Taylor II. 318, 320

Kane v. Cook II. 639

V. Scofield II. 480

Karck v. Avinger I. 251

Kase V. John I. 205

Kaskaskia Bridge Co. v. Shannon

IL 499, 606

Kasson v. Smith II. 28

Kauffelt V. Bower II. 176

Kay V. Brookman II. 480

V. Duchesse de Pienne I. 84

Keaggy v. Hite IL 616

Kean v. Davis I. 94, 97, 169

V. Dufresne II. 151, 156

Kearney v. King II. 342

V. West Granada, &c. Mining

Co. II. 269

Kcarns v. DurcU II. 49.?

Kearslake v. Morgan I. 329; II._ 151,

154, 155, 181, 182, 184, 217, 308

Kearsley v. Cole I. 241 ; II. 2iS

Keating v. Price II. 529

Keaton v. Greenwood IL 630, 64C

V. McGwler II. 630

Kceler v. Bnrtine I. 605, 621

Keene v. Beard II. 58

V. Keene II. 395, 396, 399

V. Thompson IL 38, 101, 186, 189

Keener v. Crull II. 660, 661

Keer v. Clark II. 466

Keeton v. Keetoa 11. 635, 637

Ixx

INDEX TO CASES CITED.

Eeir » Leemafl I. 196, 215

Keith's Case II. 587

Keith T,. Jones I. 46; II. 189

V. Smith II. 618

Kellar v. Sinton II. 632

Kelley r. Brown I. 601 ; II. 67, 68

r. Few 11.515

V. Hemmingway I. 39

T. Mayor of Brooklyn I. 44, 164

Kellogg V. Budlong II. 94

V. Hickok II. 424

V. Krauser II. 46

V. Lawrence I. 302

T. Olmsted II. 528

Kelly V. Ford I. 255

V. Smith I. 2^0 ; II. 48

Kelsey v. Oris wold II. 642

V. Rosborough 11. 153, 154, 161,

82,218

Kelso V. Frye II. 538

Kemble v. Lull I. 304

v. Mills L 550, 552 ; IL 59, 71, 73

Kemeys v. Richards I. 127

Kemp I'. Balls IL 27, 216, 219

V. Finden IL 254

Kempton v. Swift II. 645

Kendall v. Galvin I. 193 ; II. 487

V. Robertson II. 419

Kendrick v. Lomax I. 662 ; II. 234

Kennard i;. Knott 11.240,241,242

Kennebeck Co. v. Augusta Ins. &

Banking Co. IL 530

Kennedy v. Geddcs I. 293, 294

V. Lancaster Co. Bank II. 550,

566, 577

V. Manship IL 604

V. Motte II. 247

V. Townsley II. 663

v. Vanwinklo IL 96

V. Woodfolk IL 167

Kenner v. Creditors I. 282, 408

Kennerly v. Nash II. 392, 565

Kenncrsley Castle, The 11.174

Kennctt v. Millbank II. 652

Kenningham v. Bedford I. 240

Kennon v. Dickens II. 425

V. M'Uue L 382, 596, 600, 607,

610, 622, 623, 625; li. 439

Kenny r. Collins II. 167

Kensington Bank r. Patton II. 649

Kent T. Lowen

II. 471,491

T. Rogers

II. 608

V. Somervell

IL 440

V. "Walton

IL 419

Kenworth v. Hopkins

IL 241

Keplinger v. Griffith

479, 486

Kerr v. Webb

11.611

Kerrison v. Cooke I. 325 ; II. 250

Kershaw v. Co.x IL 563, 570

Ketchell v. Bums I. 44 ; II. 119, 130, 132

Ketchura v. Barber II. 433

V. Bank of Commerce II. 37

Keutgen v. Parks I. 276 ; IL 279

Key V. Flint II. 27

V. Hill I. 252

V. Knott II. 107

Keyes v. Moultrie II. 406, 414

Kidd V. Walker II . 394

Kiddall v. Trimble IL 629

Kiddell v. Ford I 529 ; II. 245

V. Peronneau I. 447, 530

Kidson v. Dilworth I. 104

Kieffer r. Ehler I. 260

Kiersted v. Rogers II. 439

Kies V. Tifft IL 138

Kilbourn v. Bradley II. 420

Kilgore v. Bulkley L 26, 399, 402, 408,

466, 471, 473, 474 • II. 34, 68, 71

V. Powers II. 392, 396

Kilgour V. Finlyson I. 106

Kilpatrick v. Heaton IL 244, 245

Kilsby V. Williams II. 77, 230

Kilton V. Fairclough I. 481

Kimbal v. Blanc II. 179

Kimball ». Boston Athenaeum 11.415

V. Cunningham IL 207

V. Fuller II. 644

V. Grover II. 535

V. Huntington I. 24, 25, 228

V. Lamson II. 545, 578

V. Newell I. 244

Kimbro v. Bullitt L 133, 138, 139

V. Lytic I. 226

Kimmcy v. Campbell II. 50

Kincaid v. Iliggins II. 504

Kincannon v. Carroll II. 568

Kitie I'. Beaumont IL 490, 491

King t;. Auglitry II. 645

V. Baldwin I. 235, 23^ 238 ; II. 2:59.

244 24.5, 246

INDEX TO CASES CITED.

Ixxi

King V. Bicklcy
V. Faber
V. Fowler
V. Gillutt
V. Hamilton
r. Hoare
V. Holmes
V Hunt
V. Johnson
V. King
V. Lane
V. Lowry

I. 468,469,471

I. 129

II. 46
II. 235
II. ftS9

I. 249, 251

I. 372,412

II. 550, 565

U. 431

II. 647

11.381, 383

II. 179

V. Milsom I. 51, 184 ; II. 188, 264,

283, 480

V. Phillips I. 662

V. Smith I. 201

V. State Bank I. 237, 239

V. Thorn I. 155, 156, 161 ; II. 6, 446

T. Upton I. 198

V. Walker II. 324, 634

The, V. Evans II. 413

V. Hampton II. 584

V, Twine II. 45

V. Wendman II. 45

Kingdom v. .Jones II. 45

Kingman v. Hotaling II. 456

V. Pierce I. 230 ; II. 266

Kingsbury v. Butler I. 38

Kingsford v. Merry II. 116

Kiiigston V. Long I. 43

V. Wilson I. 651

Kinnear's Case L 288

Kinney v. Lee I. 45 ; II. 642

Kinniken v. Dulaney II. 35

Klinsley v. Buchanan 11. 176

V. Robinson I. 537, 542, 544

Kirby v. Marlborough II. 223, 225

V. Sisson II. 297

V. State II. 588

V. Taylor I. 247, 250

Kirk V. Blurton I. 135

V. Strickwood I. 215

Kirkland v. Lowe II. 373

Kirkpatrick v. McCulough L 46, 47

V. Muirhead I. 224

Kirksey v. Bates I. 634, 635

Kirtland v. Wanzer I. 636, 643, 644 ;

IL 499
Kirwan v. Kirwan I. 143 ; II. 201

Kissam v. Burrall II. 336, 376

Kitchen v. Bartsch I. 153

Kittridge v. Brown II. 652

Klein v. Currier II. 120, 125, 12o

V. Keyes I. 178

Knapp V. Lee I. 210

V. McBrido I. 128

V. Maltby II. 568

V. Parker II. 121

Knight V. Abbott II. 622

V. Clements IL 550, 577, 579, 580

V. Criddle II. 92

V. Croekford I. 37

V. Hughes II. 253

V. Hunt I. 216

r. Knotts 11.518

V. Legh n. 265, 266, 293

V. Packard II. 470

V. Priest I. 200

V. Pugh I. 188 ; II. 438

V. Wilmington & M. R. R.

Co. L 45

Knights u. Putnam I. 218; II. 407,415,

431

Knill V. Williams IL 562, 568

Knotts V. Butler II. 638

Knowles v. Parker I. 203, 264

Knox V. Light II. 623

V. Reeside I. 84, 303

V. Thompson II. 618

Koch V. Howell I. 284

r. Melhorn II. 141

Kock V. Shepherd II. 634

Kohler v. Smith II. 395

Konig V. Bayard I. 313, 318

Kortright v. Cady 11. 624

Kramer v. M'Dowell I. 482, 487
V. Sandford L 561, 567, 572, 575

Krebs v. O'Grady I. 8o

Kritzer v. Mills I. 235, 238

Krumbhaar v. Ludeling I. 94

Kufh V. Weston I. 460

Kunkel v. Spooner II. 4.37, 43S

Kupfert V. Guttenberg Building Ass.

II. 406

Kurtz V. McGuire IL 607

Kyle V. Bostick II. 240

V. Green I. 570, 582

V. Thompson I. 358 ; II. 439, 455

V. Wells IL 628, 654, 661

Kymer v. Suwercropp II. 173

Ixxii

INDEX TO CASES CITED.

Lane v. Morris
V. Mullins

IL 646

II. 286

Labordi-, v. Consolidated Association

U. 592

Lacoste o. Harper I. 540, 546, 557, 596,

601, 604, 619

V. Price
T. Sharpe
V. Steward I.
622

580,
II.

585,
428,

II. 502
IL 510

586, 597,
498, 516

Lacy J?. Holbrook
V. Kinnaston
* V. Kynaston

L 47
n. 238
II. 237

'Lanfear v. Blossmau
Lang V. Brevard
V. Fiske

L45

; II. 275

I. 238

II. 50

v. Woolcott

n. 583

V. Johnson

II. 507

Ladd V. Baker

L 251

V. Mackenzie

IL 652

V. Kenney
La Farge v. Herter

603, 607
IL 410

V, Smyth
Langan v. Hewett

. 33,

34, 114
I. 141

Lafittc V. Slatter

534, 541

Langdale v. Trimmer

L 514

Lafond v. I^ddock

II. 635

Langden v. Stokes

11. 235

Lagow V. Badollet

167, 168

Langdon v. Goole

II. 569

Laing v. Barclay

I. 661

V. Hulls

471,

490, 491

v. Lee

IL 128

Lange v. Kohne

L47

V. Stone

393,

396, 398

Langliorn v. AUnutt

IL 489

Lake v. Hayes
v. Stetson

II. 25
IL 123

Langley v. Palmer
Langston v. Corney

L439
L301

Lalandc v. Breaux

II. 411

Langton v. Haynes

IL 401

Lamb v. Lindsey

II. 418

Lanier v. McCabe

126, 140

V. Moberly

286, 293

Lansdowne v. Lansdowne

IL 369

Lambarde v. Older

IL 611

Lansing v. Gaine I. 48

, 125

146

148,387

Lambert, Ex parte

I. 318

Lanusse v. Barker II.

336,

341,

370, 376

V. Ghiselin

490,

491, 628

V. Massicot

L 423

V. Oakcs Y.

. 25

482,

484, 589

Lapham v. Barnes

233

; IL 515

V. Pack II.

25,

482,

484, 589

V. Briggs

II. G37

V. Sandford I. 229, 326 ; II. 250

Lapice v. Clifton

IL 275

V. Taylor
Lambeth v. Caldwell

II. 45
I. 635

V. Smith
Laporte v. L;iiulry I. 483,

601,

11.376
602, 604,

V. Rivarde
Lamego v. Gould
Lamourieux v Hewit
Lainpley v. Weed

II.

133,

II. 256

II. 413

138, 139

II. 622

Larason v. Lambert
La Rue v. Gilkyson
Lary v. Young I.

586,

II.

591,

620

643, 659

I. 149

594; II.

Lamprell v. Billcricay
Lamson v. PfafT
Laiiauze v. Palmer
Lancaster v. Horrison

Union

II.

I. 163

291, 303

II. 491

L 249

Las Caygas v. Larionda
Latapie v. Gravier
Lathrop v. Delee

II.

516

1. CM

298, 306

1. 483

V. Walsh

IL 257

V. Morris

1.226

Lancaster Bank r. Woodward

I. 272,

V. Siiellbaker

IL 640

275, 378;
Land v. Cowan
V. Lee

[I: 77, 83
II. 607
IL 472

Latin v. Vail
Liinghlin v. Marshall
Laurence r. Hopkins

1. 210

I. 26

II. 649

Landry v. Stansbury
Lane's Cu.sc
Lane t. Cotton

I. 364

IL 42.J

100, 315

Lavcrty v. Buir

Law r. East India Co.

Liiwicy r. Hooper

I.
II.

125, 140
I. 242

406, 413

r>. Doty

V. Ironmonger

. 656

, 6&8, 659
II. 210

Lnwrason ». Mason
Lawrcnci- v. Cowles

29il

; II. 134
IL-IU

INDEX TO CASES CITED.

Ixxiii

Lawrence v. Langley I. 447, 530 ; II.

182, 348

V. Mangum II. 651

r. Miller 1.486,491

V. Ralston 1.611, 622, 626, 643

Lawsr. Rand I. 273; II. 74

Lawson v. Farmers' Bunk I. 499, 511,

512, 513, 515

V. Lawson
V. Lovejoy
V. Shiffner

V. Weston

II. 56, 61

I. 73, 74

I. 516

186, 258; II. 255,

256, 258, 269, 270, 271, 272, 273

Laxton v. Peat I. 229, 325, 326 ; II. 239,

242, 249, 250, 533

Layct r. Gano

I. 117

Layton v. State

II. 637

Lazarus v. Cowie

11. 219

V. Shearer

I 94

Lazell V. Lazcll

290, 291, 309

Lea V. Branch Bank

I. 21

Leach v. Buchanan I.

282,

323 ; II. 285,
482, 590, 593

V. Hewitt

L 557, 560

Leadbitter v. Farrow-

L 102

Leaf V. Gibbs

L232

Leake v. Burgess

L 317

Lean v. Schutz

L 78

Leapcr v. Tatton

IL 650

Leaphardt v. Sloan

IL 474

Lear v. Yarnel

11.417

Lcavitt V. Cowles II.

298

310, 439, 442

y. De Launy

406, 413, 414,
433, 4.34

V. Gooch

II. 647

V. Putnam

L381 ; II. 13

V. Simes I.

370,

373, 385, 395 ;
IL 348, 491

Leblcu V. Rutherford

II. 257

Le Breton v. Miles

11. 324

V. Pierce

. 223; 11. Ill

Le Chevalier v. Lynch

II. 326

Lechmcrc v. Fletcher

11. 652

Lee V. Alexander

II. 574

V. Dick

II. 140

V. Jilson

II. 454

r. Levi

II. 239

r. Levy

II. 239, 245

V- Love

IL 244

V. Muggeridge

I. 79

Lee V. Ncwsam II. 268

V. Oppenheimer I. 245

V. Sewall II. 162

V. Wilcocks • II. 370

Bank ». Spencer L 529, 610

I V. Walbridge II. 434

I Leeds v. Lancashire I. 38, 43 ; II. 539

Lc Fcuvre v. Sullivan II. 364

Le Fevre v. Lloyd I. 103

LcffingwcU V. White I. 384, 395, 588 ;

II. 516

Lcftley V. Mills L 358, 392, 410, 41 1,

415, 417, Sie, 641, 644 ; II. 213, 461

Legg V. Ltgg II. 350

Legge V. Thorpe I. 534, 535, 538, 540,

544, 546, 647; II. 498

Lcgget*». Raymond I. 44 ; II. 125, 132

Leghr. Legh L336;IL51

Legro V. Staples I. 38, 335

Lehman v. Jones I- 440

Leiher v. Goodrich L 46 ; II. 1 89

Lcland y. Crcyon 11.132

V. Farnham H- 9

V. The Medora IL 171, 174, 175,

180

Lemon v. Dean H- 475

Lcnnig V. Ralston L 57, 58, 653, 662

Lenox v. Cook I. 351 ; II. 463

V. Leverett L 316 ; 11.497

?>. Prout IL 240, 245, 247

y. Roberts I-SIO

Lent r. Padelford IL 139, 140

Leonard v. Gary I. 586, 596

V. Hastings L 590

V. Leonard I. 149, 151 ; II. 211

V. Mason I. 285

V. Smith II- 502

y. Vrcdenburgh II. 125, 128,

129, 132

V. Wildes 1. 148; II. 121, 425

». Wilkes 11.126

y. Wilson L 65; II. 17, 560

Lequeer v. Prosser I. 44 ; II. 119, 130

Le Roux V. Brown II. 326

Le Roy v. Crowninshield II. 319, 320,

326, 360, 369, 383, 385

Lester v. Garland I- 3^4

Letcher v. Bank of the Commonwealth

II. 160
Lett V. Morris I- 336

Ixxiv

INDEX TO CASES CITED.

Levasser v. Washburn
Leveiick v. Meigs
L; Veux v. Berkeley
Levistoiier. v. Marigny
Lew V. Baker

II. 663

I. lO.i

II. 635

II. 660

II. 6

V. Bank of U. S. I. 321 ; 11.99, 195

V. Brown II. 417

V. Cavanagh II. 61

r. Drew 1.381

T. Merrill II. 128

V. Peters I. 589, 608, 622, 648 ;

II. 72

V. Pyne I. 138

V. U. S. Bank II. 590

V. Wilson II. 480

Lewin v. Brunetti I. 313

Lewis's Case 11- 585

Lewis, Ex parte II. 165

V. Bakewell L 502

V. Bowen II. 49

V. Bradley II. 140

V. Brewster II. 137

r. Burr 1.401,402

V. Cosgrave I. 205

V. Culbertson II. 608

r. Dalryniple II. 458

V. Fullerton II. 319

V. Gompertz I. 468, 469

r. Gray 11.471

V. Hanchman II. 250

V. Harbin II. 51 1

». Harvey 11.121,137

V. Hodgson II. 454

V. Jones I. 239, 244; II. 242

V. Kramer I. 298, 570 ; II. 551,

573

V. Lee I. 78

V. Manly II. 151

r. Owen II. 341, .342, 360, 363

V. Parker I. 255; II. 9, 493

V. Payn II. 572, 574

V. Pctayvin II. 298, 306

r. Keilly L 145

V. Sapio IL 475, 488

V. Splane IL 258, 298, 305

V. Starke II. 168

r. Thatcher II. 503

». Wilson I. 26

Lewislon Kiills Bunk r. Leonard I. 4H5

Lcykariff r. Ashford II. 577

Lichtenthaler v. Thompson I. 242

Liekbarrow v. Mason II. 11, 34, 80, 21 2

Light V. Leiiiinger II. 611

Lightbody v. Ontario Bank II. 89, 103,

105, 106, 189, 192, 193

Lightfoot V. Tenant II. 321

Lightnerw. Will I. 441

Lighty V. Brenner II. 605

Lilley v. Miller L 584; II 71

Lilly V. Hfiys I. 297

Lime Rock Bank v. Macomber II. 444

?;. MallettL235; 11.540

Lincoln v. Bassett I. 245

V. Battelle IL 381

V. Fitch II. 469

V. Smith I. 94

Lincoln Academy v. Newhall II. 385, 637

Lincoln & Kennebec Bank v. Hnmmatt

I. 369; II. 516

V. Page
L 369; 11.516
Lindenbcrger v. Beall I. 478, 515 ;

II. 491, 492
Lindo V. UnsAvorth I. 515, 530

Lindsey v. Stevens II. 225

Lindus v. Bradwell L 81, 82, 313 ; II. 3,

479, 489

V. Melrose L 170

Linsell v. Bonsor II. 652, 661

Linton V. Wikoff II. 638

Lisle V. Rogers I. 276 ; II. 550, 562, 572

Litchfield V. Falconer I. 195 ; II. 513

Lithgow V. Evans II. 4 6

r. Lyon II. 393, 395, 397

Littcll i;. Hord 11.415

V. Marshall I. 256

Little V. Blunt II. 383

V. Consolidated Association of

Planters of La. 11.313

V. Downing II. 634

V. Duncan L 67, 75

zj. Dunlop L 275

V. Hale I. 260

V. Nabb II. 128

V. Obricn I. 202 ; II. 209, 443

V. Phenix Bank I. 46, 273 ; II. 58,
72, 73, 74
V. Rogers I. 21

V. Slnckford I. 52

V. White II 415

INDEX TO CASES CITED.

Ixxv

Littlefield v. Hodge

II. 147

V. Shee

1.79

V. Smith

II. 5.3

Littlejohn v. Gordon

II. 6.32

Littler v. Franklin

II.

294, 306

Livennore v. Johnson

II. 6.39

V. Rand

II.

376, 653

Livingston v. Bird

11.412

V. Harrison

II. 624

V. Hastie I. 125, 128, 132, 176

V. Indianapolis Ins. Co. II. 417

V. Radcliff II. 155

V. Roosevelt I. 125, 126

Lizardi v. Cohen II. 341

Llewellyn v. Winckworth I. 92, 101

Lloyd V. Jewell L 204, 210

r. Keach 11.431

V. McGarr I. 662 ; II. 497

V. Maund II. 660

V. Oliver I. 64

V. Sandilands II. 83, 84

y. Scott IL 406, 412, 413

V. Willan I. 327

Loaring, Ex parte II. 166

Lobdell V. Baker II. 39

V. Niphler IL 239, 240

Lockart v. Graham II. 465

Lockhard v. Avery II. 517

Lockwood V. Beckwith II. 607

V. Comstock I. 145, 147

V. Crawford I. 264, 268, 368,

377, 379, 467, 516, 519 : II. 248

V. Mitehell II. 410

Lockyer ». Jones 11.91,188

Lodge V. Dicas II. 201

V. Phelps II. 320, 353, 356, 368

V. Spooner I. 664

Loftin V. Aldridge II. 651

V. Shackelford II. 605

Logan V. Attix II. 153

V. Bond I. 131

V. Mason II. 225, 230

Logs of Mahogany 11.169

Logue V. Gillick II. 624

V. Smith IL 561

Lomas v. Bradshaw I. 137

London v. Howard I. 507

Long V. Bailie II. 212, 291, 292, 295, 296

V. Carter I. 126

V. Colburn I. 99, 121

Long V. Greville II. 660

V. Jameson II. 651

V. Moore II. 553, 573

V. Storie (9 Hare) II. 414

V. Story (10 Misso.) I. 146, 147

V. Wharton II. 413

Longchamp v. Kenny II. 93

Longfellow v. Andrews II. 453

Longley v. Griggs II. 140

Longridge v. Dorville I. 190, 199

Lonsdale v. Brown I. 57, 198, 358, 642,

647 ; IL 324

V. Lafayette Bank II. 109

Loomis V. Fay II. 509, 537

V. Pulver I. 204

Loose V. Loose I. 604, 621, 623, 624, 625

Lord V. Appleton I. 489, 494 ; II. 488,

492

». Chadbourne 1.264,379,519

V. Chesebrough II. 438

V. Hall I. 84 ; II. 3

V. Harvey IL 652

v. Moody I. 233

V. Ocean Bank I. 226, 229, 326 ;

II. 27

Lord Cochrane, The II. 174

Loring v. Gurney I. 39

V. Sumner I. 212

Losee v. Dunkin I. 264, 377

Lott V. De GrafFenreid IL 639

Loud r. Merrill I. 635 ; IL 492, 499

Louisiana Bank v. Bank of U. S. II. 281

Louisiana Ins. Co. v. Shamburgh I. 453

362
Louisiana State Bank v. Ellery I. 499
V. Orleans Naviga-
tion Co. II. 275
V. Rowel I. 483
Love V. Hackett II. 660

V. Nelson L 404, 408, 411

Lovejoy v. Robinson II. 619

V. Whipple I. 49

Lovel V. Wartenburgh I. 396

Loveland v. Shepard II. 141, 142

Lovell V. Evertson II. 439, 455

V. Hill I. 24

I'. Martin II. 212, 256, 266

Lovett V. Cornwell II. 193

Low V. Blodgett II. 455

V. Burrows I. 255

Ixxvi

INDEX TO CASES CITED.

Low r. Chifney

188

; II. 494

Lyman v. Norwich Univ

ersity

IL 657

V. Copestake

II. 439

Lynch v. Bragg

II. 609

v. Howard

5S0,

601,

605, 606

V. Reynolds

II.

242, 247

V. Tread well

IL 527

Lyon's Case

II. 583

V. Underhill

II. 248

Lyon V. Holt I

426,

427

; II. 241

Lowber v. Shaw

IL 466

V. Lyman

II. 476

Lowe V. Blair

IL 528

V. Marshall

L34

V. London & Northwestei

r. State Bank

11.412

Railway

L 163

V. Sundius

1.305

V. Murphy

L 25

V. Williamson

310, 435

V. Peskett

II. 441

Lyons v. Miller

IL37

V. Sowell

II. 658

Lysaght v. Bryant

I. 504

V. Waller

408,

417, 418

V. Walker

IL 226

Lowell V. Daniels

L 78

V. Gage

II.

122, 124

V. Johnson

II.

415, 420

Lowerv v. Scott

L 492

Lowes V. Mazzaredo I. 218 ; IL 418, 431
Lowndes v. Anderson II. 42, 44, 93, 269
V. Collens II. 393, 397, 399
Lowney v. Perham II. 488

Lowremore v. Berry II- 435

Lowrey v. Murrell IL 98, 103, 105, 106,

193
Lowry v. Adams

V. Western Bank
Loyd v. Lee

V. Williams
Lubbering v. Kohlbrecher

Lucas V. Dorrien
V. Haynes
V. Ladew
Luckey v. Peppei
Luckie v. Bushby
Ludlow V. Bingham
V. Simond
V. Van Rensselaer
Ludwick V. Huntzingcr

IL 134
II. 336
I. 79
II. 417
II. 549, 572,
574
IL 34, 116
IL 263, 266
L 397, 399, 405, 407
I. 407
II. 605
I. 260
II. 246
IL 321, 331
II. 371, 396

Luff V. Pope

Lumley v. Hudson

V. Mu«grave
V. Pahner

Luna ». Edmiston

I. 286, 299, 300, 330, 331 ;
II. 489
II. 234
IL 164, 234, 398
I. 283, 285
II. 660

Lundic v. Rol)ertson I. 596, 014 ; II. 497

Luntr. Adams 1.411,414,418,420

Luskr. Smith 1.14.5,148

Lyle ». Murray 11.641

Lyman v. Morse H- 421

Maberly v. Bank of Scotland II. 314

jNIcAUester v. Spraguo I. 245, 248

M'AUister 27. Reab L 210

McAllister v. Smith II. 318, 499

McAlpin V. Wingard II. 604

M' Arthur v. Bloom I. 84

McBride v. Gray II. 651

Macartney v Graham II. 296, 310

Macbean v. Morrison I 97

McCall V. Clayton I. 97

McCallop r. Fluker L311

McCann v. Lewis II. 437

McCartney v. State II. 588
Macarty v. Barrow I. 351 ; II. 214

McCarty v. Mewhinney II. 615

V. Roots I. 223

McCaskill y. Ballard 1.184

McCasky v. Sherman I. 221

Maccoun v. Atchafalaya Bank I. 639

McClain v. Waters I. 494

V. Wiedcmaycr II. 49

McCIanaghan v. Ilines II. 504
McClanc v. Fitch I. 359, 435, L\6, 642

M'Clcan v. Hertzog II. 292

M'Clellan v. Clarke I. 530

M(^Clintock's Appeal II. 645

M'ClurcTJ. Bennett I. 169

V. M'Clurc II. 642

McClurc V. Williams II. 420

McCollum r. Hinckley I. 238, 243

McComb V. Kittridgo I. 240

McConnol ». Thomas II 450, 452

INDEX TO CASES CITED.

Ixxvii

McConnell v. Iloilson II. 27.5

V. Stuttinius II. 154, 308

McCoon V. Galhi-aith II. 641

McCoril V. Williams II. 60G

M'Cormiik f. Trotter I. 46

M'Coy V. Gilmore I. 29

V. Moss II. 523, 524

McCready v. Cann I. 2.16

MeCrillis v. How I. 68

M'Cruminen v. M'Crummen I. 483

McCullodi ». Jurlil 11.64 7

V. Commercial Bank I. 499

McCuUougli V. Henderson II. 6n4

V. Moss I. 164, 165, 166,

173

McCully r. Silverburgh II 609

McCnrry v. McKesson II. 649

McDade 1'. Mead 11.605,610,618

M'Danie! v. Uiv^hcs II. 387

McDaniels v. Barnum II. 416

McDermott v. McCormick II. 480

M'Doal V. Yeomans II. 133, 142

McDonald v. Bailey I. 579 ; II. 348

V. Black II. 612

V. Bovington II. 234

V. Harrison II. 610

V. Lee I. 407

V. McGuire II. 640

V. Smith I. 393; 11.348

M'Donald v. Johns II. 646

V. Magruder II. 250

V. Pickett 11. 222

McDonnell v. Branch Bank II. 641, 642

M'Donough v. Goule II. 24

McDougald v. Dougherty II. 622

V. Rutherford II. 352

M'Dowall V. Boyd II. 154

McDowel V. Chambers I. 22

McDowell V. Bank II. 246

V. Blackstone Canal Co. II. 227

V. Cork 1.318

V. Goldsmith II. 9, 629

M'Dowell V. Tyson II. 609

McDuffie V. Magoon II. 515, 525, 535

McElfatrick v. Hicks II. 412

M'Elmoylo v. Cohen II. 381, 383

McElroy v. Caldwell II. 545

McElwcll V. Collins II. 428

M'Evers v. Mason I. 294 ", II. 62

McFadden r. Fortier II. 425

IM'Fadden v. Maxwell II. 470, 471

McFarland v. Pico I. 636, 643

Macfarlane v. Moses II. 4?5

Macfcrson v. Thoytes II. 477, 48.3, 48.=5,

590

M'Gahey v. Alston II. 304

McGarr v. Lloyd II. 294

M'Gee r. Donaphan 11.301

McGee v. Prouty I. 233, 255 ; II.

456, 515

M'Gehce v. Greer II. 602

McGill ??. Ware 11.421

M'Ginn v. Holmes II. 154, 217

McGinnes v. McGinnes II. 466, 467

McGinnis v. Allen II. 612

M'Ginnis v. Hart II. 406

McGowen v. West I. 25

McGrath v. Hoopes II. 457

McGregor v. Cleveland I. 136

Macgregor r. Rhodes II. 484

McGrew v. Toulmin I. 495
M'Gruder v. Bank of Washington

II. 421, 450, 451, 452, 456

McGuire v. Bosworth II. 121

M'Guirc V. Gadsby II. 204

Machell v. Kinnear II. 439

McHenry v. Ridgely II. 451

Mclniffe v. Wheelock IL 622

Macintosh r. Haydon IL 548

Mclntyrc v. Kennedy II. 153

V. Parks IL 328

Mackay v. Dodge I. 239

V. Holland L 275

McKenna v. George I. 244

McKenney v. Whipple L 310, 430

M'Kenny v. Waller II. 240

McKenzic v. Durant I. 310, 411, 414 ;

II. 461

p. Hunt II. 604

V. Nevius II. 228, 230

Mackenzie v. Scott I. 105

McKes.^ion v. Stanberry I. 189

Mackey v. State II. 588

Mackic v. Cairns II. 319

McKiel V. Real Estate Bank I. 310

M'Kim V. Marshall IL 361

r. Smith U. 62

McKinley v. Winston II. 607

M'Kinnell v. Robinson I. 214

McKinncv r. Beeson 11. 5>68, 280

Ixxviii

INDEX TO CASES CITED.

M'Kinney v. Crawford I. 264, 268, 377,

380, 381, 382, 519

V. Springer II. 633

McKissick v. McKissick II. 327

McKleroy v. Soutliern Bank of Ky.

II. 482, 484, 600, 602
McKnight v. Lewis I. 475, 476, 477

M'Knight V. Wheeler II. 407

McKown V. Whitmore II. 640

Mackreth r. Symmons 11.167

M'Lachlan v. Evans II. 94

Maclae v. Sutherland I. 130, 135, 136

McLain v. Rutherford I. 393

M'Lanahan v. Brandon I. 493

McLaren v. Watson II. 133

McLean v. Jackson II. 634

M'Lean v. Ragsdale II. 638

McLellan v. Crofton II. 647

McLemore r. Cannon I. 189

M'Lemore v. Powell I. 240; II, 239,

240, 242, 247, 533
Macleod v. Snee I. 44

Maclish !7. Ekins IL 110

M'Lughan v. Bovard II. 181

McMahan v. Breinond I. 355

McMenomy v. Farrers I. 335

r. Murray II. 359, 361

McMicken v. Beauchamp II. 577

V. Webb L 239

M'Millan v. M'Neill II. 360, 362

McMillan v. Wood II. 636

M'Minn t; Owen II. 506

McMinn v. Richmonds I. 67, 68

McMurchey v. Robinson I. 374, 384, 643
M'Murtrie v. Jones I. 490, 494

McNair v. Cooper II. 530

V. Fleming I. 137

V. Gilbert II. 290, 293

McNairy v. Bell I. 310

McNamce v. United States II. 663

McNeil ». McCamlcy II. 153

V. McCIintock II. 305

M'Neilagc r. IloUoway I. 88; II. 357,

447
M'Neill V. M'Donald I. 275

McPhcrson r. Ross II. 608

M'Rac V. Boast II. 254

McRac V. Kcnnon II. 486

v.lA^ary IL 651, 652

M'Rae r. Mattoon II. 350

McRae v. Morrison
Mactaggart i". Watson
M'Teer v. Hunter
Mc Williams v. Mason
Macy V. De Wolf
Madden v. Burris
Maddock v. Hammett
V. Rumball
Maddocks v. Hankey
Maddo.K V. Graham

II. 298
L 243
II. 660

I. 239
IL 180
IL 475
IL 417

II. 409
IL 486

IL 33, 34. 35

Madison, &c. Plank-Road Co. v. Ste-
vens IL 503
Magee v. Badger II. 278
V. Carmack II. 105
V. Dunbar I. 502
Maggs V. Ames I. 244
Magor V. Hammond I. 62
Magruder v. Goodwyn II. 640
V. Peter IL 167, 168
v. State Bank IL 424
V. Union Bank I. 364, 445, 526
Mahan v. Ross II. 605
V. Sherman I. 137 ; II. 511
Maher v. Overton I. 94
Mahier v. Lc Bliinc I. 387
Mahone r. Central Bank II. C63
Mahony v. Ashlin L 55, 643 ; IL 324
Mahorner v. Hooe II. 320
Mahurin v. Pearson I. 237 ; II. 608
Maillard v. Duke of Argyle II. 154, 186
Maine Bank r. Butts II. 412, 421
V. Smith I. 370, 570
Mainer v. Spurlock I. 471, 473, 474, 497
Mainwaring v. Newman I. 137 ; II. 459
Makepeace v. Harvard College II. 146,

535, 542

V. Moore I. 158

Malbon y. Southard L 160; II. 5, 121,

122
Malcolm v. Scott I. 336

Maiden Bank v. Baldwin I. 439, 440

Male V. Roberts II. 3.50

Malin v. Malin II. 574

Mallet V. Thompson I. 326 ; II. 250

Mallory v. Grant II. 138

V. Kirwan I. 507

Malpas V. Clements II. 487, 663

Maltby v. Cooper IL 62«

Manaduc v. Kitcbcn L 182, 487, 489

Manchester r. Malhtwson IL ?47

INDEX TO CASES CITED.

Ixxix

Manchester Bank v. Fellows I. 412, 413,

414, 482, 483, 484, 510,

513, 514, 515; 11.462

V. White I. 510

Mandevillc v. Welch I, 227, 330, 331,

333, 334 ; II. 61

V. Wilson II. 648

Maneely v. M'Gee II. 151

Manhattan Co. v. Ledyaid II. 480

T. Osgood II. 421

V. Reynold.s I. 358 ; II.

437, 442, 443, 444

Manhood v. Crick II. 154

Manion v. Titsworth II. 629, 637

Maniort v. Roberts II. 50, 449

Manley v. Boycot I. 234 ; II. 515, 522,

525

Mann v. Chandler I. 99, 102, 169

V. King I. 109

V. Lent I. 186, 203

V. Marsh II. 225

V. Moors I. 486

Manning v. Hays I. 126, 128, 470

V. Shotwell I. 237

V. Westerne II. 225, 228

V. Wheeler II. 649

Manrow v. Durham L 44 ; II. 119, 123,

125, 129, 130

Mansfield v. Corbin I. 195

V. Ogle II. 406, 413

Manson v. Fclton I. 89

Manufacturers' Bank v. Cole I. 239 ; II.

444, 445
V. Winship I. 132
Manwaring v. Harrison I. 269, 377

Marberger v. Pott I. 233, 237, 238

March?;. Ward 1.251

Marchant v. Dodgin II. 415, 420

Marchiiigton v. Vernon II. 4, 210

Mardall v. Thellusson II. 612

Marc V. Charles I. 97 ; II. 478

Marfield ». Davidson II. 292

Margesson v. Goble I. 469

Margctson v. Aitkcn I. 597, 615

Marine Bank of the City of New

York V. Clements II. 478

Marine & Fire Ins. Bank v. Jauncey

I. 290, 335

Mariners' Bank v. Abbott I. 235, 241,

246; II. 519

Marion, The Schooner II. 170

Marion & M. R. R. Co. v. Dillon I. 63.

28S
Marion, &c. R. Co. v. Hodge I. 288 ;

11.83

V. Lomax I. 288

Marklc v. Hatfield I. 37, 38, 101, 186,

189, 190, 192,485. 600

Marks v. Morris II. 416

Marlar, Ex parte II. 395, 397

Marlett v. Jackman I. 143

Marplc V. Myers II. 634

Marr v. Johnson I. 490, 504

V. Plummer II. 454

Marrigan v. Page I. 25

Manyatts v. White II. 222, 229

Marseilles v. Kenton II. 647, 649

Marsh v. Barr I. 498

». Day 11.119

V. Houlditch II. 230

V. Martindale II. 412, 420, 422

T. Maxwell I. 517

V. Newell II. 441

V. Redder II. 86, 154, 155, 184

V. Putnam II. 264

r. Small 11.275,277,589

2?. Turner II. 167

Marshall's Case II. 585

Marshall v. Aiken I. 246

V. Baltimore & Ohio R. R.

Co. I. 214

V. Dallibet II. 649

V. Gougler II. 553, 555

V. Mitchell I. 568. 570, 589, 611

V. Poole II. 394, 399

V. Pyeatt II. 457

V. Button I. 78

Marson v. Petit II. 547

Marston v. Allen I. 49 ; II. 44, 265, 273

V. Brackett 11. 470

V. Carter I. 86

V. Forward I. 188

Martel v. Turcaud I. 575

Martendale v. Follet II. 549, 571, 572

Martin v. Bacon I. 283, 286

V. Bank of U. S. I. 231, 232 ; II.

100, 265, 293, 312, 314

V. Boure I. 11

v. Chauntry T. 45

V. Boyd II. 121

Ixsx

INDEX TO CASES CITED.

Martin v. Branch Bank at Detroit

II. 630, 640
v. Bridges II. 661

V. Broach II. 651

V. Drahcr II. 222

T. Franklin I. 663 ; 11. 370

r. Hamilton 1.279,309

V. Hill II. 319, 327, 369

V. IngersoU I. 515, 591, 603

T. Kirk I. 146, 147

V. Letty II. 637

t V. Maguire II. 476

r. Martin 11.318,3.34,633

V. Mayo I. 73

V. Mechanics' Bunk II. 252

V. Morgan 11. 71, 77

V, Pennock II. 159

T. Strihling ^ I. 232

Z>. Trobridge 11.604

V. Walton I. 147

V. Warren II. 455

v. Winslow I. 264, 377, 379. 380,
381, 595, 602
Marvin v. Bates II. 635

V. Feeter II. 409

r. McCullum I. 48

Marvine v. Hymers I. 164 ; II. 411,

421, 433
Mary, Sloop 11.413

Mary Blanc, Steamboat, v. Beeler II. 642
Marzctti v. Williams II. 63, 213

Mask V. Phillcr II. 652

Maskcll V. Pooley II. 603

Mason v. Barff I. 284

V Bradley II. 559, 560, 580
T. Croom II. 623
». Franklin 1.351,440,441
V. Ilaile II. 326
r. Hunt I. 286, 292,301, 302,

305, 329
V. Lickbarrow II. 178

V. Morgan I. 87

v. Peters 1.241

V. Rumscy I. 123, 135 ; II. 477
V. Waite II. 93, 266, 267, 280

V Wirkershnm II. 160, 201
Mass. Bank r. Oliver 1.501,502
Master v. Miller (1 An.st.) II. 36, 581

V. Miller (4 T. R. 320) I. 276,
312, 321 ; II. 550, 574, 581

Mrtstcrman r. Cowrie
Masters v. Barrets
V. Baretto
V. Dunn
r. Ibberson
Mather i-. Bush

n. 407

I. 255; II. 9

1. 428 ; II. 548

II. 639

11. 273, 274

11.361

V. Maidstone II. 283, 493, 593, 600

II.

Mathes v. Bennett
Matliew V. Slierwell
Mathews V. Aikin
V. Fogg
Matlack v Hendrickson
Matlock V. Livingston
Matossy v. Frosh
Matson v. Booth
Matthews v. Coalter

r. Griffiths

V. Haydon

V. Houghton

V. Lewis

V. Poythress I. 189, 259, 260 ;
IL 256, 258, 260, 278

V. Redwine I. 33

V. Rutherford I. 226

Matthey c. Gaily I 580

Mauldin v. Branch Bank I. 126

Maule V. Murray II. 369

Mauran v. Lamb II. 84, 209, 220, 436,

437, 443

II. 629

II. 82

II. 246

I. 499

IL 45, 52, 453

I. 195

IL 473

II. 568

577, 578

II. 410

L361

L 45

11.413

Mauri v. Hefferman
Maurin v. Perot
Maury v. Ingraham
Maverick v. Salinas
Mavor v. Pyne
Mawson v. Blanc
Maxcy v. Knight
Maxwell v. M'llvoy
M:iy V. Boisseau

V. Campbell

V. Coffin

V. Cooper

V. Harvey

V. Kelly '

r. Rumncy

V. State Bank
Maybec v. SniflTen
Maybin v. Kirby
Mayhew v. Boyd

V. Crickctt

11.477

L 436, 437

IL 434

II. 634, 635

II. 631

L 77

IL 393

IL315

L 471, 609; 11.447

IL 428

I 528, 599, 611, 63 1

L 385, 392

II. 82

L 116, 313; IL 489

II. 629

L 656

IL 552, 577, 578

II. 46, 47

I. 238 ; II. 246

I. 242; II. 135,234,

249 2.53

INDEX TO CASES CITED.

Ixxx'i

Mayhew v. Prince
Kaynard v. Johnson
V. Nekervis
llayne v. Griswold
Mayo V. Chenoweth

1.94, 298

II. 163

II. 467, 470

II. 640

1.33

Mayor v. Johnson I. 231 ; II. 100, 294,

296, 312

V, Ripley I. 247

of Alexandria v. Patten II. 224, 225

of Ludlow V. Charlton I. 163

Mazuzan v. Mead II. 429

Mazagora's Case II. .588

Meacher v. Fort I. 33, 322 ; II. 592

Mead v. Carnal I. 498

». Engs 1.509,510

V. Small I. 446, 529, 568, 575 ;

II. 95

T. Steger II. 502

V. Young II. 4, 212, 479, 584

Meader v. Scott II. 608

Meadow v. Bird I. 279

Meagoe ». Simmons II. 411, 419

Mears v. Graham I. 28, 169

Mechanics' Bank v. Bank of Columbia

1.94,95

&c. Bank v. Compton I. 497,

498

Bank v. Earp I. 104, 105

V. Griswold I. 529, 562,

566, 632

V. Hildreth I. 146

V. Merchants' Bank

I. 368, 373

V. Minthorne II. 371

V. N. Y. & N. H. R. R.

Co. I. 108, 119; II.

33,34,35,115,116

& Farmers' Bank v. Schuyler

I. 115, 386; II. 11

Bank, &c. v. Townscnd II. 427

Mecorney v. Stanley II. 124, 126

Mecutchen v. Kennady I. 127

Medbury v. Hopkins II. 3' 8

Medcalf r. Hall I. 269, 378

Medway v. Needham II. 319

Mcdway Cotton Manufactory v. Adams

I. 171; 11.451

Meech v. Smith II. 132

Meegan v. Boyle II. 634

Meeker r. Jackson II. 298, 302, 304

Vol. L—F

Mcggadow V. Holt 1. 631

Megginson v. Harper I. 32 ; II. 64;5, 6.')6

661

Meggot V. Mills U. 228, 229

Meghan c. Mills II. 4 6

Meigs V. Dimock II. 167

Melan ». Fitzjames 11.310,367

Melanotte r. Teasdale I. 25

Mellt'dge v. Boston Iron Co. I. 9.i, 167 ;

II. 151, 152, 158, 176

Mcllersh v. Rippen I. 474, 47.'5

Mellish V. Rawdon I. 264, 266, 267, 2G9,

338, 340, 341, 342, 34.5, 344, 34:;

V. Simeon I. 651, 652 ; II. 37u

Mellon V. Croghan I. 311

Melvill V. Glendiiiiiig I. 239

Mendenhall v. Lenwell II. 528

Mendez v. Carreroon I. 358 ; II. 2-JO

Mendizabal v. Machado I. 293, 302

Menendez r. Syndics of Larionda II. 29S

Menkens v. Heringhi I. 82

Mcnse v. Osbern I. 622, 648

Mercantile Bank v. Cox I. 132

Mercein v. Andrus I. 125

Mercer ». Cheese II. 151, 154

V. Clark I. 202

V. Lancaster I. 199, 498

V. Sayre II. 94

r. Selden II. 646

Merchants' Bank v. Birch I. .501

V. M'Intyre II. 590

V. Rawls II. 620

V. Spalding II. 90

V. Spicer I. 23, 36 ;

IL 16, 58, 72, 73

Meredith v. Banks II. 425

V. Duval II. 358

Meredith v. Hinsdale II. 363

V. Short I. 227

Meriam v. Rundlett II. 387

Meriwether v. Bird II. 602

Merle v. Andrews II. 641

Merlin v. Manning II. 49

Merriam v. Granite Bank I. 223, 259

jj. Walcott II. 37, 39, 186, 600,

602

V. Wilkins I. 72

Merrick v. Boury II. 153, 160, 573

Merrifield v. Cobleigh II. 444

Merrill v. Smith II. 50

Ixxxii

INDEX TO CASES CITED.

Merrills r. Law

n. 417

Miller V. Hughes I. 133

V Swift

• II. 4.53, 45.5

V. Hull IL 420

Merrimack Co. Bank v.

Brown I. 241,

r. Irvine 11.128

595 ; II. 223

V. Kerr IL 410

Merriman v. Maple

n. 244

V. Lumsden IL 151, 153, 160, 308

Merritt v. Benton

II. 433

V. McCan II. 245

V. Ciason

1.22

V. Manice I. 125

T. Lincoln

L237

V. Miller II. 54, 89, 92, 94, 1S8,

T. Seaman

n. 612

230, 619

V. Thompson

IL 625

V. Moore II. 169

Mertens v. Winnington

L317

V. Race L 120, 256, 258; IL 88,

Messenger c. Southey

L 468, 469, 475

92 110, 111, 112, 113,114, 115,

Metcalf V. Pilclier

IL 428, 604

188, 212, 266, 267, 268, 269,

Metcalfe v. Richardson

L 469, 477, 614

272, 275, 276, 280, 282, 293

Meyer v. Haworth

L79

v. Reed IL 561, 577

Michael v. Myers

II. 241, 242

V. Stem I. 240

Michigan Bank v. Leavenworth I. 241

V. Stewart I. 239

Ins. Co. V. Leavenworth I. 41,

V. Thomson I. 62, 288

49, 160, 381 ; IL 11, 13

V. Trevilian II. 223

State Bank ».

Peck I. 299

r. Webb IL 258, 298, 304, 305

Mickles v. Colvin

I. 224

V. White II 511

Middlebury v. Case

IL 452

V. Williamson I. 158

Middlesex Husbandmen

, &c. V. Davis

Milliken v. Brown I. 249

L 228

V. Loring I. 145

Middleton v. Gill

II. 399

Millis V. Barber II. 438

Middletown Bank v. Jerome II. 493

Mills

r. Bank of U. S. L 397, 470, 471,

Miers v. Brown

L 471, 629

473, 475, 476; IL 325

Milburn v. Guyther

IL 605

I'. Barber I. 187; II. 494

Miles V. Beriy

IL 640

V. Fowkes II. 223, 224, 226, 227,

V. Gorton

IL 178

231, 653

V. Hall

L 489

V. Gibson I. 596

V. O'Hara

IL 515

V. Kuykendall I. 45

V. Williams

II. 3, 45

V. Lumpkin II. 611

Milford r. Mayor I

350; IL 214,463

V. Rouse I. 590

Millar V. Hall"

IL 359

TJ. Safford IL 91, 188

Millaiulon r. Anions

IL 239, 240

V. Starr II. 549, 552, 573

Miller r. Austen

I 26

V. Taber II. 649

V. Berkey

II. 138

Miln

V. Prest L 285, 292, 293, 302

J. Cohea

II. 594

Milne v. Graham II. 353, 355

V. Delamater

I. 83

Milncs V. Daw.son I. 178, 191 ; II. 55

V. Edmonston

11. 532

Mims V. McDowell I. 243 ; IL 153, 200

I'. Gam hie

I 232 ; IL 525

r. Macon & W. R. R. IL 168

V. Gaston I. 44

; II. 119, 130, 1.33

Minard v. Mead I. 8C

V. Gilleland II.

550, 551, 556, 577

Minell v. Heed I. 184

V. Ilackley I. 57, 59, 3.50, 351 , 478,
482, 596, 598, 607, 610;
IL 323, 324, 463, 496
V. Helm I. 158

V. Hcnnen J. 488

r. Holbrook II. 528

Miner v. Bank of La. 11.314

Minct V. Gibson L 32 ; II. 50, 585, 592
Minklcr v. Minkler II. 661

Minor v. Mechanics' Bank I. 252

Minturn r. Fisher I. 407, 582, 589, 647 ;

IL 59, 68

INDEX TO CASES CITED.

Ixxxiii

Miranda v. City Bank I. 482, 591

Miser V. Trovinger I. 502, 533, 537, 555,

647

Mitchell u. Baring 1.316,441

V. Clay II. 652, 653

B.Cross. 1.511,512

V. Culver I. 115; II. 11

V. Dall II. 222, 223, 225

V. Degrand I. 289, 291, 337,

352, 384, 509

V. Griffith II. 406

V. Johnson II. 480

V. Kingman I. 149

V. McLcmore II. 64 1

V. Ostrom I. 145

V, Reynolds I. 69

V. Rice II. 440

V. Ringgold II. 552, 566

V. Rome R. R. Co. I. 25, 228

V. Scaife II. 169

V. Sellman II. 607, 650, 651

Mitcheltree v. Veach II. 645

Mitchinson v. Hewson I. 85

Mitford I'. Walcot I. 313

Mi.x V. Madison Ins. Co. 11. 378, 407

V. Ely II. 176

V. State Bank II. 457

Moakley v. Riggs II. 138, 141

Mobley v. Clark I. 63, 537, 544

V. Ryan II. 9

MoffiU V. Edwards I. 39

Moffatt's Case II. 583

Moffatt V. Buchanan II. 640

Mogadara v. Holt I. 631 ; II. 73

Moggridge v. Jones I. 200, 204

Mohawk Bank v. Brodcrick I. 271, 554;

II. 58, 59, 68, 69, 71, 72

V. Corey I. 222, 226 ; II. 28

V. Van Home II. 247

Moies V. Bird II. 117, 121, 126, 131, 501,

521
Moline, Ex parte I. 360, 416, 417, 500,
516; II. 213
Molloy V. Delves I. 113, 290

Molson V. Hawley II. 27

Molton V. Camroux I. 150

Monroe r. Hoflf II. 41, 156

Montague v. Perkins I. 49, HI, 114,

290, 387; II. 12, 643
Montgomery v. Chadwick II. 633

Montgomery v. Elliott 1. 310, 430, 431, 432

Montgomery Co. Bank r. Albany City

Bank I. 48' • ]f. 209

r. Marsh 1.490 498

R. R. Co. i: Hurst II. 510,

558

Montillet v, Duncan I. 499

Montpelier Bank v. Dixon I. 237

Montross v. Clark II. 27

Moodie v. Morrall 1. 366, 458, 493 ; II. 245

Moody V. Lcavitt I. 197

V. Mahuria II. 92

V. Rowell II. 476

V. Threlkeld I. 31

Moon V. Haynic I. 575

Moor V. Wilhy I. 283

Moore v. Ayres II. 498

V. Barthrop II. 85

V. Battle II. 409

V. Burr I. 511, 519

V. Butlin II. 602

V. Caldwell II. 638

V. Candell I. 192

V. Coffield I. 449, 573, 601

V. Cooper I. 99

V. Davidson II. 508

V. Denslow II. 440

V. Fall II. 290, 291, 293, 296, 303

V. The Fashion II. 170

V. Fuller II. 397

V. Greene II. 639, 640

V. Hardcastle I. 498, 621

V. Hardison II. 659

V. Hillebrant II. 659

V. Hylton II. 414

V. Hyman 11. 652, 654, 655

V. Leseur II. 657

V. Lobbin II. 642

V. Newbury II. 170

V. Paine I. 241

V. Penn II. 437

V. Tucker I. 596, 600

V. Vance II. 408

V. Waitt I. 370

r. Warren 11.184

r. Weir II. 605

Mooring v. Marine Dock & Mut. Ins.

Co. II. 153, 157

Moorman p. Bank of Alabama I. 475,

476

Ixicxiv

INDEX TO CASES CITED.

Mordecai v. Dawkins I. 214

More V. Howland II. 433

V. Manning I. 15

Moreau v. Bank of t'ae State of N. Y.

II 64
Morgan v. Bank of N. Y. II. 80, 81 , 212,

592, 600

V. Bank of North America I. 606

V. Bitzenberger II. 154, 205

V. Creditors II. 203, 205

V. Davison I. 420

V. Jones I. 43

». Lathrop II. 618

V. Reintzel II. 286

V. Richardson I. 207, 208

V. Schermerhom II. 408, 416

V. Towles I. 351 ; II. 463

V. Van Ingen I. 499

V. Walton II. 653

V. Woodworth I. 499

Morice v. Lee I. 43

Morisset v. King II. 422

Morley v. Boothby II. 127

V. Culverwell I. 230 ; II. 215

V. Inglis II. 005

Morrell v. Dickey II. 374

V. Frith II. G53

Morrill v. Brown II. 89, 92

V. Otis II. 582

Morris v. Edwards 11. 89, 96, 506, 517

V. Foreman I. 358

V. Husson I. 495, 498, 525

V.Lee L 21, 24, 43

V. Vanderen II. 572, 576

T. Walker II. 459

Canal & Banking Co. v. Fisher

II. 33, 34, 115

Morrison r. Bailey I. 273 ; II. 59, 68,

69, 73, 74

v. Buchanan I. 348 ; II. 285,

597

V. Cnrrio II. 37, 38, 39, 600

V. Jewell I. 210

V. Smith II. 565

T. Stockwcll II. 440

r. Taylor L 116; II. 7

Morrow v. Bright II. 615

V. Hanson II. 639

Morse v. Clayton I. 1 .">4

I . Green I. 92

Morse v. Hovey 11. 415

V. Wilson II. 423

T. Woods II. 230

Morton v. Navlor I. 333, 334 ; II. 489

r. Pollard 1.311

V. Rogers I. 188

V. Wescott I. 497

Moseley v. Hanford II. 508

Mosely v. Graydon I. 1 58

Mosher v. Allen II. 357, 453

Moss V. Adams II. 222, 228

V. Hall II. 245

V. Livingston I. 169, 173

V. Moss I. 249

V. Oakley I. 164

V. Rossie Lead Mining Co. I. 165

Mossop V. Eadon L 231 ; II. 289, 296,

297,302,313

Hosteller v. Bost I. 275

Mostyn v. Fabrigas II. 319

Mott V. Burnett II. 609

r. Hicks L 96, 164, 170

Motte V. Dorrell II. 417

Mottram v. Mills I. 358 ; II. 220, 442, 480

Mouchet V. Cason II. 560

Moule V. Brown I. 269 ; II. 72, 73, 85

Mountford v. Harper II. 83

Mountstephen v. Brooke II. 661

Mount Vernon Bank v. Holden I. 478, 482

Mowbray, Ex parte I. 154 ; II. 5

Mowry r. Bishop II. 423

V. Cheesman II. 632

r. Todd II. 50

Moxon V. Pulling II. 15

Moyc V. Hemdon II. 572

Mudd V. Harper II. 638

v. Reeves IL 38, 101, 186, 189, 600

Muilman v. D'Eguino I. 264, 266, 267,

268, 338, 339, 340, 341, 344, 485

Muir y. Cross II. 168

V. Rand II. 94

Muirhead r. Kirkpatrick II. 619

Muldon V. Whillock IL 161, 162, 179, 202

Muldrow V. Caldwell I. 21

Mulhall V. Neville L 112, 113, 290 ; II. 12

Mulherrin v. Ilannum I. 310

Mullen V. French II. 488

v. Morris II. 323, 377

Mnllick V. Radukisscn L 264, 266, 267,

270, 273, 338, 340, 343, 344, 345 ; IL 7»

INDEX TO CASES CITED.

Ixxx^

Munn V. Baldwin I. 478 ; II. 492

V. Barnutn II. 621

V. Commission Co. I. 164; II. 41.5,

427, 428, 433, .583

V. M'Donald I. 224

Munroe v. Boidier I. 181, 183

V. Cooper I. 51, 126, 128, 189

V. Easton I. 443

V. Perkins II. 530

Munson ;;. Ciieesboroiigh II. 266

Murchie v. Cook II. 530

Murdoch v. Lee II. 550

Murdofk v. Mills I. 297, 299

v. Union Bank of La. II. 313

Murphy v. Camden I. 127

Murray v. Baker II. 034

V. Burling II. 293

V. Carret II. 298, 308, 312

V. De Rottenham II. 362, 364

V. East India Co. I. 106, 107,

1.54, 163; n. 393, 399, 645

V. Harding II. 406

V. Judah I. 229, 273, 326 ; IL 38,

58, 68, 71, 72, 73, 74, 437,439,589, 600

V. King II. 137

V. Lazarus II. 174

V. Lylburn II. 46

V. Mumford I. 144

V. Pate II. 94

Murrill v. Handy I. 29

Murry v. Clayborn I. 643

Musgrave v. Drake I. 128

Musgrove v. Mcllroy I. 99

Musselman v. Oakes I. 34

Mussen v. Price II. 154

Mussey v. Beecher II. 489

V. Eagle Bank I. 273 ; II. 75, 76

Musson V. Lake I. 230, 367,646 ; II. 286,

336
Mutford V. Walcot I. 289

Myers v. Huggins I. 147

V. Irwin II. 89

V. Phillips L 197

r. Scaly 11294,314

V. United States II. 223

V. Welles IL 160

r. York and Cumberland R. Co.

II. 34, 50
ilyrick v. Dame I. 247

V. Hasey IL 53, 136

Nabob of Arcot v. East India Co. II. 35S
Nagel V. Mignot 11.298,301, 30tf

Naglce V. Minturn II. 608

V. Palmer II. 606

Nailor v. Bowie I. 442, 470

Nairn v. Prose II. 168

Naish, In re II. 413

Nance v. Lary I. 114

Napier v. Shneider I. 650

Narragansett Bank v. Atlantic Silk

Co. L 167

Nash V. Brown I. 191

V. Harrington I. 380, 382, 396.

509, 519, 529, 603, 604, 621,

625, 631

V. Hodgson II. 653, 655, 659

V. Nash I. 87

V. Skinner 11. 121

r. Tupper IL 327, 368, 381, 384

Nason v. McCulloch IL 607

Nathan v. Giles IL 390

National Bank v. Eliot Bank IL 61, 62

V. Norton L 146, 147

Naylor v. Moody I. 237

Nazro v. Fuller I. 276 ; IL 548

Neal V. Erving I. 92

Neale v. Reid IL 225

V. Turton I. 137

Nedham's Case I. 162

Nelson, The II. 173

Nelson v. Bostwick II. 140

V. Carmel II. 393

V. Cowing I. 183

V. Dubois IL 129, 131

V. Fotterall L 347, 641 ; IL 329

V. Serle L 196 ; IL 6

V. Whitall IL 480

Nerot V. Wallace I. 215

Ncsom V. D'Armond II. 662

Nestor, Brig IL 170, 171, 175, 180

Nettcrville v. Stevens II. 211

Nettles V. Huggins II. 615

Neve V. Hollands II. 657

Nevill V. Hancock II. 457

Nevins v. DeGrand II. 570

Ncvison r. Whitby II. 412

New V. Swain 11. 165, 166

Newall V. Hussey IL 152

Ixxxvi

INDEX TO CASES CITED.

Newbury r. Armstrong

II.

128

Newcomb v. Raynor

II.

244

Ncwcombe v. Leavitt

II.

630

Newell V. Fisher

198

V. Hamer

240

V. May berry

II.

572

V. Salmons

II.

608

V. Willianas

519

New England Bank ». Lewis I. 411, 413 ;

II. 462

Newhall v. Clark I. 304, 305

V. Dunlap I. 94

V. Vargas II. 178

New Haven County Bank v. Mitchell

II. 491, 496
New Hope D. B. Co. v. Perry I. 310,

311, 430
N. H. Savings Bank v. Colcord I. 241,

242

r. Ela 1.241; II.

245

Newland v. Oakley I. 109

Newlin v. Duncan II. 654

Newman v. Goza I. 650

V. Kettelle II. 643

V. Williams II. 427, 428, 431

Newmarch v. Clay II. 228, 229

New Orleans Bank v. Harper I. 539, 540,

557, 596, 601, 604, 619

& C. Railroad Co. v.

Armstrong II. 258

Canal, &c. Co. v. Barrow

I. 483, 498
17. Briggs

1.498
V. Kerr

I. 501
V. Robert

1.498
&c. R. Co. V. Patton

I. 483, 498

Newsom v. Thighin II. 521

Newton v. Jackson II. 527

N. Y. F. Ins. Co. ». Bennett 1.126

Firemen Ins. Co. v. Ely II. 412,

414, 421

V. Sturges II.

411, 421

Floating Derrick Co. v. New

Jersey Oil Co. I. 164

New York Marbled Iron "Works v. Smith

I. 221
State Bank r. Fletcher II. 162
& Virginia, &c. Bank v.

Gibson 1.189,291,330,

332

Nichol V. Bate I. 222, 490

V. Green I. 107

Nicholas v. Krebs II. 504

Nicholls V. Bowes I. 305, 428, 429

V. Diamond I. 98

V. Dowding II. 481, 656

v. Webb I. 634, 635, 643 ; II.

495, 499

Nichols V. Cheairs II. 200

V. Davis I. 45

V. Fearson II. 406, 429, 431

V. Goldsmith I. 436 ; II. 495

V. Holgate II. 469

V. Johnson II. 574, 577

V. Lee II. 414

v. McDowell I. 237

v. Norris L 229, 241, 326 ; IL

248, 249, 250, 533

V. Parsons I. 240; II. 515

r. Pool L 309, 311,432

V. State Bank I. 107

X. Tuck II. 619

Nicholson v. Chapman II. 264, 265

V. Gouthit I. 374, 446, 528,

529, 530, 556, 629

V. Marders I. 497, 498

V. Patton L 189, 258: II. 275,

276, 280

V. Revill I. 248 ; II. 237

Nickerson v. Howard I. 200

Nicolct V. Gloyd I. 557

Nicolls V. Rodgers II. 385, 632

Niemcewicz v. Bartlett II. 659

Nightingale i'. Ailams II. 634

r. Withington I. 66, 70;

II. 3

Nimick v. Martin I. 405, 406

Nimmo v. Stewart II. 629

Ni.sbct V. Smith II. 242

Nixon T. Palmer T. 101, 115

Noble V. Bank of Kentucky I. 509

V. M'Ciintock L 127

T. Smith I. 178

r. Walker II. 4 !(., .128

INDEX TO CASES CITED.

Ixxxvii

Noe V. I lodges II. 507

Noel V. Murray II. 40, 41 , 152, 156, 162, 163

Noke V. Iiigliani I. 249

Noliind V. Kinggold II. 45, 52

Nolasco V. Lurty II. 630

Xolte V. Creditors II. 239

Noonan v. Gray II. 233

Norris r. Aylett II. 232

V. Badger I. 358 ; II. 220, 442

V. Cnimmey II. 240, 533

V. Laiiglcy I. 279

V. Salomonson I. 614

V. Slaughter II. 630

North V. Brig Eagle II. 171

V. Wakefield I. 249

North Bank v. Abbot I. 31 1, 369, 370,

432, 439

Northampton Bank v. Balliet II. 36

V. Pepoon I. 171, 172;

II. 8, 220

Northcut V. Wilkinson II. 659

Northern Bank v. Farmers' Bank I. 231,

232; II. 100,313, 314

of Ky. V. Lcverich 11.

298, 307

North River Bank v. Ay mar I. 108

Northrop v. Sanborn I. 29

Norton v. Coons I. 244

V. Eastman II. 135

V. Ellam I. 375 ; II. 643, 644

V. Lewis I. 394, 587

V. Pickering I. 555

V. Seymour I, 136

V. Soule I. 245

V. Waite I. 221

Norwich Bank v. Hyde I. 28 ; II. 12

Nostra Scnora del Carmine, Tlie II. 173

Nott V. Beard I. 367, 422, 497, 646

V. Douming I. 502

Novelll V. Rossi I. 328 ; II., 29

Noyes i*. Evans II. 513

V. Hall II. 648

V. Price II. 93

Nugent V. Roland L 29

Nunnery v. Cotton II. 572

Nye r, Moseley I. 214

Oakeley v. Pasheller
Oakes v. Mitchell
Oakey v. Beauvais

V. Wilcox
Oakley v. Boorman
Obliard v. Bctham
O'Brien v. Davis
V. Sauls
O'Caliaghan v. Thomond

II. 201

II. 659

I. 366, 422

II. 548

II. 1.30

I. 41, 204. 208

II. 469

II. 437

II. 3.53, 357

Ocean Tow-Boat Co. v. Ship Ophelia

II. 86, 162

Odam V. Beard

Odell V Dana

Odiorne v. Howard
V. Maxcy
V. Sargent

Odlin V. Grcenleaf

Offit V. Vick

Offut V. Stout

Offutt 1'. Ayres

Ogden v. Astor

r. Coddington
V. Cowley

II 510

II. 406

I. 264; II. 470

I. 100

n. 149

I. 243 ; II. 639

I. 57, 622

I. 401

I. 99

II. 647

II. C06

I. 457, 478, 489 ;

II. 492

V. Dobbin I. 436, 506, 514

V. Saunders II. 323, 346, 359, 360,

363, 364, 372, 381, 589

r. Slade I. 47

Ogilby V. Wallace II. 455

Ogle V. Graham II. 549, 565, 566

Oglesby v. Steamboat I. 596, 598, 622

Ohio Ins. Co. v. Edmondson II. 320, 327

V. Nunemacher II. 622

O'Keefe v. Dunn I. 337

O'Keson v. Barclay I. 196

Okie V. Spencer I. 241 ; II. 150, 155,

184, 244, 245, 246

Olcott V. Rathbone II. 86, 164, 203, 204,

437, 439, 443

D. Tioga R. R. II. 636

Oldham v. Bcngan II. 244

Olendorf v. Swartz I. 610

Oliver V. Bank of Tennessee I. 537, 540

V. Gray II. 661

D. Oliver II. 392

Olmstead v. Greenly 11 132

Oneale v. Long II. 558

Onondaga Co. Bank v. Bates I. 640, 641

Ixxxviii

INDEX TO CASES CITED.

Ontario Bank v. Lightbody II. 192

». Petrie 1.401,476

V. Schermerhorn II. 433

V. Worthington I. 224,

285, 293, 294

Orcutt V. Berrett II. 661

Old V. Portal II. 439

Ordiorne ». Woodnnan II. 603

Orear r. McDonald I. 443, 446, 529, 538,

539, 540, 5-12, 543, 545, 548

Oridge v. Sherborne I. 374, 407

Oriental Bank v. Blake I. 364, 501, 526

Ornie v. Young I. 237, 238, 239 ; II.

245, 247

Ormsby z). Kendall I. 122

Orr V. Laccy (2 Doug. Mich.) II. 470

V. Lacy (4 McLean) II. 434

V Maginnis L 337, 534, 535, 548,

642, 644, 647 ; IL 250

V. Union Bank I. 80, 109, 597

Orvis V. Kimball I. 74

V. Newell I. 235

Ory V. Winter II. 326, 338, 342, 343,

358, 375

Osborn v. Hawley II. 133, 147

V. Moncure L 411 ; II. 461

Osborne v. Fulton II. 96

V. Smith I. 401,402; II. 68, 71

Ossulston V. Yarmouth II. 423, 424

Oswego Bank v. Knower I. 587

Otis V. Adams I. 254

V. Barton I. 309

V. Hus.scy I 595, 601, 621

r. Lindsay II. 424

Otsego Co. Bank v. Warren I. 362,

595, 620, 636, 646

Oulds V. Ilarri.son II. 604

Outhwaite v. Luntiey II. 550, 551, 568

Overton v. Tyler II. 148

0'.ven V. Arrington II. 437

V. Barrow 11. 209

V. Iloman I. 241

». Lavine I. 45, 303

V. Moody I. 158; II. 357, 373, 374

r. The State II. 588

V. Van Uster I. 312

Owens V. ('oliinson I. 250

Owenson r. Morse 11. 41, 91, 105, 154,

157, 166, 178, 184, 186, 191, 192

Owings r. Grubbs I. 94

O.xford Bank v. Davis I. 337

V. Haynes L 238; II. 117,

119, 137

V. Lewis L 241 ; IL 241,

242, 245, 246, 250, 533

Oyster i;. Longnecker II. 417

Pabodie v. King I. 241 ; IL 528, 533

Pacific Bank v. Mitchell IL 219

Pack V. Alexander 1. 481

V. Thomas I. 273; IL 61, 74, 507

Packard v. Tiie Louisa II. 175

■c. Lyon I. 424, 459

V. Nye 1. 99

V. Richardson II. 128, 409

Paff V. Kinney II. 629

Pagan v. Wylie II. 597

Page V. Cable IL 368

T. Green IL 456

V. Hubbard IL 151, 153, 172, 180

V. Lathrop I. 255 ; IL 456, 489

V. Mann II. 480

V. Newman II. 392

V. Page IL 298, 304, 305, 372

V. Prentice I. 493

V. Thomas II. 465

V. Warner I. 655

V. Webster L 237, 439

Paige V. Cagwin II. 472

V. Stone L 93, 100, 117

Pain V. Packard I. 235, 237, 238 ;

II. 243, 248

Paine v. Edseil IL 550, 577

V. Pritcliard II. 394

T. Strand Union I. 163

Palethorp v. Furnish IL 661

Palfrey v. Baker II. 164

Palmer's Case II. 585

Paltrier r. Andrews IL 655

r. Baker IL 410

V. Dodge L 146, 147

r. Grant L 2.33, 247 ; (I. 119, 520

V. Hughes I. 311

V. Jannaiu II. 43

r. Logan II. 294, 304, 305, 306

V. Manning II. 477

INDEX TO CASES CITED.

Ixxxii

Palmer v. Pratt

V. Ricliards

V. Stephens I.

V. Yarrington
Panama, Sliip
Pankey v. Mitchell
Pannell v. M'Mehen
Papot V. Trowell
Paragon, The
Parchman v. McKinney
Parham v. Murphee
Parish v. Stone I. 178, 1
Park V. Page I.

Parke v. Ijowrie
V. Smith
Parker v. Ade

V. Bigelow

V. Burgess

V. Carter

r. Greele

V. Cousins

V. Gordon

r. Hanson

V. Hutchinson

V, Jackson

V. Kendall

V. Kennedy

r. Leigh

V, McKelvain

r. Macomber

T. Marston

V. Phillips

V. Riddle

V. Ramsbottom

V. Sanborn

V. Tottcn

r. Tuttle

V. United States

Parkes's Case

Parkhurst v. Dickcrson

Parkin v. Moon

Parks V. Brinkerhoff
r. Brown
V. Duke
V. Edge
V. Ingram

Parnell v. Price

I. 39

II. 43, 44, 265

23, 36, 122, 247 ;

II. 474

II. 318

11.411

II. 549

II. 248

II. 634

II. 170

II. 226

II. 444

79,211 ; 11.44,55

411,414, 418, 420

I. 643

II. 470

II. 473

II. 403

I. 125

I. 197
I. 294, 296

I. 135, 146, 147;

II. 200,421, 422
I. 306, 418, 478;

II. 100, 492
II. 467, 470
II. 394
II. 639, 646
II. 603, 610

I. 26
I. 324, 326

II. 141

I. 146, 147

II. 54
I. 144

II. 45, 120
II. 409
II. 642
II. 438

I. 264 ; II. 9
II. 460
II. 584

I. 300

II. 9
II. 131

II. 439
I. 26

; II. 473

229, 326

I. 240

1.426
I.

Parnther v. Gaitskell II. 63-»

Parr v. Eiiason I. 218; II. 415, 431

V. Johnston II. 583

Parris v. Cobb II. 64 1

Parry v. Nicholson II. 550, 577, 579

Parsons v. Gaylord I. 200

V. Gloucester Bank II. 238

V. Phipps II. 470, 471

Partridge v. Badger I. 299

V. Bank of England II. 34, 1 1 5

V. Coll)y II. 125, 558

V. Court I. 155

V. Davis I. 22; II. 14, 16, 18,

132, 136

II. 393

Parvin v. Hoopcs
Pasmore v. North
Patch ». King
Pate V. Gray
V. M'Clure

I. 41, 42

II. 658

II. 392, 393, 607, 609

I. 596, 601, 603, 607,

621

Pateman's Case II. 584

Paterson v. Hardacre I. 51, 186 ; 11.265,

280, 292, 293, 493

V. Zachariah I. 148

Bank v. Butler I. 491, 499

Patience v. Townley I. 460, 531

Paton V. Coit

V. Winter

I. 312, 352

Patrick ». Beazley

V. Clay
Patridge v. Strange
Pattce V. Grccly
Patterson v. Becker

V. Chalmers

V. Choate

V. Cobb

V. Johnson

V. Poindcxter

V. Todd

r. Vose
Pattison v. Hull
Patton V. Ash

V. Bank of So. Car.
V. Nicholson

1.279
II. 550,
564, 565
1.483
II. 393
11.45
1.213
I. 596,603,614,647
II. 179

II. 658

II. 649

II. 1G7

1.26

1.381 ; II. 121
II. 498

I. 334 ; II. 224
II. 159
n. 314
1.216

T. State Bank I. 231 ; II. 100, 266,
291, 294, 312
I. 601
1.468, 469, 477
II. 620

V. Wilmot
Paul V. Joel
Paup r. Drew

INDEX TO CASES CITED.

Pawling V. Pawling 11. 425

Payne r. Bensley I. 223, 224

V. Clark I. 28

r. Commercial Bank II. 246, 533

V. Cutler I. 222

r. Ladue 11.512,531

r. Trezevant II. 418

V. Winn I. 643 ; II. 329

Paysant v. Ware II. 502, 514

Payson v. Whitcomb I. 309

Peabody v. Beach II. 609

V. Denton II. 298, 306, 307

V. Harvey I. 612

V. Peters II. 604

Peace v. Head II. 298, 304

Peach V. Kay I. 283

Peacock's Case II. 585

Peacock v. Banks II. 372, 376

V. Rhodes 1.280; II. 19, 20,

111, 114, 269, 280, 480

Peake v. Dorwin I. 235 ; II. 246

Pearce v. Austin 11. 436, 437, 438

V. Creswick 11. 294, 297

V. Davis II. 83, 85

Pearl v. M'Dowell I. 151

Pearsall v. D wight 11. 318, 319, 320,

321, 358, 368, 382

Pearson v. Bailey II 416, 418

V. Bank of the Metropolis I. 424 ;

II. 514, 516

n Crallan I. 478, 479, 480

v. Darrington 11.611,651,654,

656, 661

V. Duckham I. 509

V. Garrett I. 39

V. Hutchison II. 213

r. M'Gowraa 11.417

V. Parker I. 243

V. Pearson I. 178

Pease, Ex parte II. 43

T. Dwight II. 570

V. Hirst II. 52, 219, 231, 448, 659

V. Morgan II. 480

Pcaslcc V. K.jbl.ins I. 151 ; II. 6, 482

Peck V. Boisford II. 659

r. Cochran I. 300

V. Ilihbnrd II. 362

V. Ilozier II. 367

r. Maynard I. 260

». Mayo II. 326, 337, 371, 372

Peck V. Randall

II. 646

Pecker v. Sawyer

n. 469

Pedder v. Mac Master II. 359,

367, 369

Peden v. Moore

I. 209

Peebles v. Gee

II. 228

Peer v. Humphrey

II. 279

Peet V. Zanders

I. 492

Peirce v. Butler

1.369

; n. 516

V. Pendar

482, 487

V. Rowe

II. 425

Pemberton v. Oakes

II. 230

Pendergrast v. Foley

II.

640, 646

Penkivil v. Connell

I. 170

Penley v. Waterhouse

II. 628

Penn v. Watson

II. 647

Penniman v. Hartshorn

II. 535

V. Meigs

II.

360, 362

Pennington v. Gittings

I. 197

Pennock v. Freeman

n. 640

Penny, Succession of

II. 483

V. Corwithe

11. 577

V. Graves

II. 509

V. Innes

11.25

V. Parham

II. 121

Peniiypackcr v. Umberger

II. 469

Pentz V. Stanton

I. 93, 94, 96

People V. Baker

U. 83, 85

r. Brigham

II. 583

V. Call

560, 565

V. Chadwick

II. 588

V. Clarke

II. 663

j;. County of New York

II. 397

V. Dubois

II. 621

V. Fitch

II. 585

V. Getchell

II. 586

V. Hoag

II. 586

V. Ilolbrook

II. 292

V. Howell

II. 40, 8;?, 159

V. Jaiiscn

I. 246

; 11. 246

V. Spooner

11.477

V. Stewart

II. 588

i;. Thorns

II. 588

r. Van Rensselaer

II. 663

Peoria, &C.R Co.r.NciU

1.321

; 11. 482,
609

Pepoon V. Stagg I

24, 25

; 11. 562

Peppen v. Peytavin

I. 45

Percival r. Frampton

1 188,

221, 223;
II. 49-1

Perfect V. Musgravo

J34, 250

INDEX TO CASES CITED.

XCl

Perham v. Raynal II. 656, 658, 661

Perkins v. Cartmell II. 630, 640

V. Catliii II. 120. 121, 1.31, 142,

519. 520, 521

V. Cliallis I. 260

r. Clements II. 447

V. Commonwealth II. 588

V. Franklin Bank I. 400, 407,

408

». Oilman II. .533

V. Goodmaa . II. 233

V. Hawkins II. 609

V. Kent II. 254

Per Lee v. Onderdonk II. 234

Parley v. Balch I. 205

Perreira v. Jopp I. 59

Perrin v. Broadwell II. 244

V. Keene I. 145

V. Noyes I. 189 ; II. 438, 493

Perring v. Hone I. 136 ; II. 561

Perry v. Barret II. 118, 121

r. Crammond I. 49

V. Green I. 264, 379, 380, 519,

562

V. Harrington I. 304

T. Jackson JI. 636

V. Jones II. 45

V. Lewis n. 633

V. Roberts II. 616

Persons v. Jones IT. 640, 642

V. McKibbin II. 606

Peter v. Beverly II. 154

Peters v. Anderson II. 222, 225, 227,

228, 229

V. Brown II. 661

V. Soame II. 45

Peterson v. EUicott 11. 660

V. Willing IL 501

Petit V. Benson I. 282, 312

Peto V. Reynolds I. 61, 62, 289

Petre v. Duncombe I. 243

Petrie v. Clark I. 224

Pettee v. Trout I. 253, 255 ; 11. 437, 443,

604, 609, 611

Pettis v. Westlake II. 9, 1

Petty t». Hi\nnum I. 191

Peyroux v. Dubertrand I. 499

r Howard 11. 170, 171, 175

Peyton v. Bladwell I. 214

V. Hallctt I. 334

Ffiel V. Vanbatenberg

230 ; II. 220,
221, 48e

Pliares v. Walters

n. 63?

Pliaup V. Stratton

n. 478

Phcbe, The

IL 170

Phelps V. Decker

L 210

V. Foot

II. 22, 536

V. Johnson

II. 154

V. Phelps

L 86, 87

V. Pierson

11.416

V. Stewart

II. 650

V. Williamson

IL 650

Philadelphia Bank v. Newkirk I. 38

Loan Co. v. Towner II. 318,
410
& Sunbury R. R. Co. v.
Lewis II. 405

Philips V. Astling I.

361,

366 i IL 137,
139

V. M'Curdy

L 508, 601

V. Peters

n. 654, 661

V. State

IL 629

Phillips V. Alderson

I. 487, 490

V. Allan

II. 360, 363

V. Blake 11. 91

, 97, 151 188,

189, 192

V. Cage

IL 648

V. Cockayne

IL 410

V. Cole

IL 472

V. Ford

IL 101, 189

V. Franklin

IL 399

V. Frost

I. 282

V. Gould

468, 469, 477

V. Hunter II.

326,

360, 387, 388

V. Lawrence

II. 606

V. Lee

IL 164

V. Longstreth

IL 502

V. Merrimack

Mut.

F. Ins.

Co.

IL51

V. Poindexter

1. 639

V. Pope

IL 628, 630

V. Preston

IL 517

V. Rodie

IL 169

V. Stagg

L 336

V. State

IL 587

V. Wan-en

IL 487, 488

Philliskirk v. Pluckwell L 87, 88 ; II. 446

Philpot V. Briant II

239,

240, 247, 533

Philpott V. Bryant I

337,

427, 438, 642

V. Jones II. 22

4,225

, 227, 232, 653

ICll

INDEX TO CASES CITED.

Phipps 3. B&iier II. 475

V. Chase I. 493, 494

V. Tanner I. 29

Phipson V. Kneller I. 582, 589 ; II. 516

Phoenix Bank v. Hussey I. 57, 314, 642 ;

n. 324

Piatt V. Eads I. 374, 394

Pickard v. Bankes U. 93, 189, 191

V. Valentine I. 393, 404 ; 11. 348,

644

Pickering v. Banks II. 420

V. Marsh I. 229, 326

V. Pickering I. 196

Pickett V. Land I. 237

Pickin V. Graham I. 596, 601

Picquet v. Curtis I. 255, 311, 358 ; 11.

220, 456, 480, 488, 644

Pidcock V. Bishop I. 236

Pierce v. Gate I. 413, 450, 516

V. Drake II. 159

V. Dustin II. 615

V. Fothergill II. 393

V. Hoffman 11. 605

V. Kennedy 11. 121

V. Read II. 357

V. Struthers I. 492

r. Whitney I. 424, 434, 442, 610 ;

II. 508

Pierson v. Dunlop I. 286, 292, 293, 301,

302; II. 218

V. Hooker I. 621

V. Hutchinson II. 84, 294, 296,

299, 308

». "Wallace 11.91,92

Piggot's Case II. 575

Pike V. Ledwell II. 409

V. Street II. 24, 522

Pilie V. Mollere I. 29

Pilkington v. Woods II. 456

Pillaiis V. Van Microp I. 176, 183, 296,

292
Pillard v. Darts II. 244

Pillow V. Hardeman I. 501

Pinchain v. Collard II. 167, 168

Pinckney i'. Keylcr II. 608

Pindall v. Bank of Marietta II. 223

V. Northwestern Bank II. 101, 189
Pindcr r. Nathan I. 508

Pine V. Smith I. 263, 417

Pincr i;. Clary I. 381

Pinkerton v. Bailey II. 9

Pinkham v. Macy I. 470, 471, 477, 516,

643

Pinkney v. Hall I. 312 ; U. 478

Pinney v. Bugbee I. 248, 250

Pintard v. Davis I. 237

r. Tackington 11. 151, 160, 290,

291, 293, 308

Pipe V. Steele II. 465, 488

Pipkin V. Hewlett II. 645

Pitcher v. Barrows I. 137 ; II. 440

Pitman v. Kintner I. 170

Pitt V. Ghappelow I. 321 ; II. 482

V. Purssord I. 243 ; II. 253

V. Smith I. 151

Pittam V. Foster II. 657

Pitts V, Holmes 11. 448, 605, 637

V. Keyser I. 358 ; II. 442

V. Wooten II. 659

Planche v. Fletcher II. 321

Planters' Bank v. Bivingsville Manuf.

Go, II. 434

V. Bradford I. 494

V. Mark ham I. 419

v. Sellmaa II. 533

V. Sharp I. 164

r. Snodgrass 11.412,422

v. Stockman II. 228

r. White I. 501

Piatt P. Drake I. 471, 477, 643

V. Smith II. 542

Playfair v. Cooper II. 629

Plcts V. Johnson I. 32 ; II. 50, 585, 592

Plumcr's Case II. 491

Poagc V. State II. 584

Pocock V. Billing II. 472

Poe V. Duck II. 364

Pogue V. Joyner II. 466

Poiricr v. Morris I. 183, 221, 223 ; II.

43, 443

Pole V. Ford II. 234

Poiglass V. Oliver 11. 91, 188, 189, 620

Polhiil V. Walter I. 121, 313

Polk V. Allen II. 644

Pollard r. Baylors II. 414

V. Ilcrries I. 652 ; II. 355

v. Scholy 11.410

V. Yoder 1 1. 393

Pomeroy r. Ainsworth II. 319, 320. 377,

405, 41M

INDEX TO GASES CITED.

XCIU

Pomeroy v. Slade
Pomroy v. Rice
Pond V. Lockwood
V. Underwood
V. Willidms
Ponder v. Carter
Pons I'. Kelly

I. 98
n. 151, 205

I. 221

II. 83
I. 248 ; II. 653

II. 638
I. 507, 529, 544

Ponsonby v. Nicholson I. 394

Pool V. McCrary II. 146

». Kelfe 11.649,651,656

Poole V. Dicas I. 515, 641

V. Palmer II. 465, 488

V. Smith II. 286, 296, 303, 309

V. Tolleson I. 381, 382, 520

V. Tumbridge I. 415

Pooley V. Harradine I. 229, 234 ; II.

502, 533

V. Millard II. 309

Poor V. Hazelton I. 86, 88

Pope V. Askew II. 477

V. Bowman II. 638

V. Luff n. 62

V. Nance U. 200, 598

V. Nickerson II. 320

V. Risley II. 639

Popham V. Aylesbury II. 188

Poplewell V. AVilson I. 195

Popley V. Ashly 11.41,155

Porche v. LeBlanc II. 619

Portas V. Paimboeuf II. 495

Porter r. Boyle I. 482

V. Cumings U. 478, 480

V. Doby II. 553

V. Hill II. 649

V. Ingrahara II. 458

V. Judson I. 459

T. McCollum I. 26 ; II. 35

V. Nash II. 298, 301

V. Palsgrave II. 399

r. Pierce 11. 537, 538

r. Talcott 11.156,218

Porthouse v. Parker I. 321, 502, 523,

524 ; II. 478, 482, 590

Portland Bank v. Brown II. 228

Portsmouth Livery Co. v. Watson II. 358

Posey V. Decatur Bank L 368 ; II. 297, 301

Post's Case II. 586

Post ». Bank of Utica IL416

Postmaster- General v. Furber II. 223,

228, 230

Postmaster-General v. Norvell II. 223, 227

Potez f. Glossop II. 663

Pottr. Clegg 11.653

Potter V. Brown II. 319, 326, 336, 343,

346, 347, 359, 367

T, Pearson I. 12

T. Rayworth I. 596, 610, 614,

618; II. 497

D.Tyler 1.21,275

V. Yale College II. 409

Potts V. Read II. 22

Powell r. The Commonwealth II. 584

V. Divett II. 546, 573

V. Eason I. 243

V. Ford XL 475, 488

V. Guy II. 393

V. Hogue II. 609

r. Jones I. 283

V. Monnier I. 283, 286, 293

V. Roach II. 215, 216, 287, 292,

296

V. Thomas IL 121

V. Waters L 49, 388 ; IL 28, 243,

245, 247, 419, 420, 427, 445,

459, 470, 471

Powers V. Ball I. 280

V. Central Bank II. 605

V. Fitzhugh n. 301

V. Lynch IL 326, 336, 346, 347,

348

V. Nash I. 244

V. Nelson I. 262

Powles V. Page I. 503

Poydras v. Delamare I. 330, 332, 334

Prather v. Ross II. 636

Pratt V. Adams II. 40S

r. Foote 11.164,203

». Guiick 11.531,538

V. Hubbard II. 636

V. Menkens IL 605

V. Thomas II. 45, 52, 120

V. Willey IL 408

Pratte v. Hanly I. 596, 648

Prentice r. Zane I. 224, 261

Prentiss v. Danielson I. 563, 568

r. Graves L 224

y. Savage IL 319, 336, 346, 347

Presbrey v. Williams I. 384, 385 ; II. 642

Prescott, Ex parte I. 336

V. Brinsley II. 444

XCIV

INDEX TO CASES CITED.

Prescoft V. Everts II. 622

T. Flinn I. 100, 107

V. Johnsou II. 494

V. Hull II. 53

Bank v. Caverly I. 79, 338,

340, 342, 345 ; II. 484, 490, 519, 589

Presley v. Davis
Preston v. Daysson
V. Jackson
V. Perton
V. Strutton

11. 629, 630

I. 491

1.217; II. 418,420

II. 154

II. 605

Prestwick v. Marshall (7 Bing.) I. 81

Prestwich v. Marshall (4 Car. & P.) II. 3,

489

Prettyman v. Short II. 37

Prevost V. Gratz II. 576

Prewett v. Buckingham II. 630

Prewitt V. Chapman I. 33

Price v. Cannon II. 217

V. Dunlap II. 290, 293, 298, 304, 443

». Edmunds 1.229,2.34,239,241,

326; II. 239, 241, 249, 250

r. Mitchell I. 307, 428

». Neal I. 321 ; II. 38, 81, 99, 195,

196, 269, 285, 482, 590, 598, 599

r. Page I. 651 ; II. 372

r. Perry II. 502

». Price II. 151, 154, 182, 183, 289,

291, 295, 296, 308

r. Shute
r. Tallman
V. Torrington
V. Young
Priddy V. Ilenhrey
Prideaux v. Collier
r. Webber
Pridgcn v. Andrews

V. Hill
Priestley v. Bisland
Primrose v. Anderson
Prince v. Brunatte

V. Ilcylin
Prinp t;. Cliirkson
Pringle v. Phillips
Printup I'. Miti-heil
Prior V. Ilmnlirow
Pritchard v. Chandler
V. Howell
V. Scott
Proctor V. Mather

1.312; II. 550

II. 577

II. 495

I. 364, 525

I. 194

I. 338, 592, 593

II. 633

II. 396

II. 647

I. 497

II. 421

J. 81, .321

II. 628

1.245; IT. 246, 5.33

I. 258; II. 275, 277

II. 580

I. 2.50

11 637

II. 381, 6.30, 649

I. 483

II. 1.53, 161

Proctor T. Moore II. 326

V. Webber I. 97

Prosser ». Edmonds II. 45

Pryor i;. Ryburn II. 636

V. Wright I. 310, 434

Puckford V. Maxwell I. 351 ; II. 87, 105,

154, 155, 186, 214

Puget de Bras r. Forbes I. 182

Pugh V. Bussel II. 359

V. Dui-fee I. 221

Pullen V. Chase II. 393

V. Hutchinson II. 578

V. Shaw II. 579

Pulliam V. Owen II. 616

T. Withers II. 557, 565

Pulsifier v. Hotchkiss I. 209

Purchase v. Mattison I. 584 ; II. 72

Purdon v. Purdon II. 656

Purdy V. Austin II. 649

Putnam v. Dike II. 384, 385

V. Lewis II. 154, 161

r. Sullivan 1. 110,280, 449;

II. 6, 11, 584

Quackenbush v. Leonard
Quantock v. England
Quarles v. Brannon
Queen, The, r. Kinnear
Quetiin v. Masson
Quiniby v. BuzzcU
V. Putnam
Quin V. Keefe
Quince v. Callcnder
Quinsigamond Bank v. Hobbs
Quynn v. Carroll

11,

n. 412

IL 631
414, 420
I. 28d
II. 360
IL 475
n. 659
II. 341, 359
IL 377
IL 421
IL 660

Raborg v. Bank of Columbia I. 397

V. Peyton I. 282, 323

Rackham v. Marriott II. 648

Racklcy v. Pcarco II. 222, 225

Radley v. Manning 11. 418

Raggett V. Axmorr 1. 32J

INDEX TO CASES CITED.

XCV

Rahm v. Philadelpliia Bank I. 435

Raigauel v. Ayliff I. 45

Railsback v. Liberty, &c. Turnpike Co.

II. 503
Raitt V. Mitchell II. 165, 169, 171

Ralli V. Dennistoun II. 564

V. Sarell I. 301

Ralston v. Bullitts I. 534, 537, 554, 590
Ramdulollday v. Darieux I. 554

Ramsay v. Allegre II. 170, 171, 174

Ramsbotham v. Cator II. 43

Ramsdale v. Horton II. 37, 101, 189,

190, 600

Ramsdell v. Morgan I. 276

». Soule 11.152,410

Ramsey v. Anderson II. 450

Ramuz ». Crowe 11.291,292,296

Ran V. Latham II. 437

Rand v. Hubbard L 158, 161 ; IL 5

V. Reynolds L 496, 497

Randall's Case IL 567, 583

Randall v. Moon 11. 458

V. Parramore II. 222, 227

Randleson, Ex parte IL 231

Randoll v. Bell IL 445

Randolph v. Cook I. 410

V. Parish I. 62

Randon v. Toby 11. 655

Ranelaugh v. Champant II. 319

V. Champante IL 319, 376

Ranger v. Gary I. 255, 256, 264, 266,

278, 377, 378, 380

Rangier v. Morton II. 151

Ranken v. Deforest I. 93

Rankin v. Blackwcll 11. 549, 577, 579

Ranson v. Mack I. 401, 402, 470, 472,

475, 476, 482, 484,491, 498

V. Sherwood II. 120, 139, 142

Rape V. Wcstcott II. 555

Rapelye v. Anderson II. 428, 429, 433

Raper v. Birkbeck I. 291, 328 ; II. 29,

564, 570, 574, 593

Raphael v. Bank of England I. 258 ; II.

257, 272, 274, 280

Ratcliff V. Planters' Bank II. 565

Rathbon v. Budlong I. 94, 97

Rathbone r. Warren II. 245, 246

Rawdon v. Redfield I. 490

Rawlinson v. Stone I. 78, 79, 157 ; II.

5,374

Rawson v. Copland

IL6H

V. Walker

II.

506, 521

Rawstone v. Parr

L247

Ray V. McMillan

IL 428

Raymond r. Baar

102, 190

V. Johnson

II. 373

V. Merchant

IL 308

V. Roberts

II. 502

V. Sellick I

.179; n. 55

Rayner v. Grote

L 118

Rea V. Dorrance

I. 556

Read v. Bank of Kentucky

633 ; IL
329

V. Brookman

287, 574

V. Cummings

1.204

V. Gutts

238, 251

V. Gamble

IL 292

V. Hull of a New Brig

IL 170

V. Marsh

L 294

V. Upton

IL 218

V. Wheeler

L25

V. Wilkinson I. 301, 537, 595, 597,

608
Reading v. Weston II. 415

Reakert v. Sanford I. 83

Real Estate Bank v. Bizzell I. 638 ; II.

499

Reaame v. Chambers II. 634

Reay t'. Packwood II. 467

Reculist's Case IL 583

Reddel v. Dobree II. 56

Reddick v. Jones I. 221 ; 11. 333, 348

Reddish v. Watson I. 240

Redmayne v. Burton II. 313

Reed V. Akin II. 620

V. Batchelder I. 67, 72

V. Boardman II. 222, 2S;1

r. Goale II. 405, 41 -.i

V. Deere II. 568

V. Evans II. 1 23

V. Gamble II. 473

V. Minell II. 640, 646

V. Prentiss I. 205, 209

V. Reed II. 425

V. Roark L 22 ; IL 546, 566

V. Shaw II. 532

V. Smith II. 420

V Upton n. 151

V. Vancleve II. 472

V. White n. 155, 179, 199

xcvi

INDEX TO CASES CITED.

Reed r. Wliitney 11. 608

V. Wood II. 513

Reeder v. Anderson II. 264

Reedy r. Seixas I. 466, 470, 475, 476

Rees V. Berrington I. 239, 246 ; II. 240,

245

V. Headfort L 186 ; II. 493

V. Overbaugh II. 574

V. Warwick I. 286

Reese v. Abbot I. 251

Reeside v. Knox I. 44

Regina v. Coulson 11. 586

r. Dawson II. 586

V. Hawkes I. 61, 289

V. Hodgson n. 587

V. Keith II. 587

V. Kinnear I. 288

V. Smith I. 62

V. Taylor 11. 69

V. Turpin 11. 82

v. Wilson I. 113

T. Winterbottom I. 159 ; II. 6

Reid V. Dickons 11. 660, 662

V. Fumival I. 192; II. 218

V. Morrison I. 450, 451, 453, 557, 558

T. Payne I. 498

V. Reid 11. 71

Reimsdyk r. Kane II. 359

Rclf V. Bank of Mobile II. 607

Remer r. Downer 1.471,475,497

Rcmick v. O'Kyle I. 310

Remington v. Harrington I. 482

Renew v. Axton II. 642

Renner v. Bank of Columbia I. 397 ; II.

298, 307, 309, 310, 325, 421, 516, 517

Rensbaw v. Triplett I. 478, 504

Rensselaer Glass Factory v. Reid II. 395

Ronwick v. Williams 11. 29, 604

Reuter v. Electric Telegraph Co. I. 163

Hew r. Barber 11.156

V. Pettet I. 98 ; II. 660

Rex V. Bigg I. 163 ; II. 18, 584

V. Birkett II. 584, 586

r. Bollond II. 585

V. Box I. 35

r. Buiko II. 584

r. Cator II. 477

r. Dunn II. 585

V. p:iliot I. 29

e. Fauntleroj II. 210

Rex r. Francis

II. 585

V. Goodrich

11. 210

V. Hales

II. 584

V. Hart

I. 113

V. Holden

II. 585

V. Hunter

I. 62

V. Inh. of Hard wick

II. 656

V. Marshall

II. 585

V. Palmer

II. 585

V. Parkes

II. 584

V. Pateman

II. 584

V. Peacock

II. 585

V. Plumer

11.491

V. Post

II. 586

V. Randall

567, 583

V. Reculist

II. 583

V. Richards

II.

567, 583

V. Shukard

n. 586

V. Taylor

n. 585

v. Teague

II.

583, 566

V. Treble

547, 585

V. Tuft

II. 585

T. Vincent

II. 210

V. Watson

II. 491

17. Watts

II. 585

T. Webb

II. 585

V. Wilson

IT. 583

V. Yates

II. 58

Reynolds v. Chettle I. 186, 362, 365, 420 ;

II. 72

V. Clayton II. 408

V. Douglass I. 595 ; II. 139

V. Doyle II. 6.18

i;. French II. 266, 298, 309

V. Lansford II. 631

V. M'Farlane II. 222

V. Peto I. 61

V. Ward I. 240, 241 ; II. 240,

533

Rhctt V. Poe I. 502, 524, 537, 544, 545,

548; II. 137, 139

Rhodes, Ex parte 11. 16

T. Gent I. 308, 329

V. Moselcy II. 292

V. Smethurst II. 646

Rhoads v. Frederick II 533

Ribbans v. Crickett II 231

Rice V. Goddard I. 204, 210

V. Gove I. 99

V. Ilogan I. 57, 6-ia

' INDEX TO CASKS CITED.

XCVll

Rice V. Maxwell

1.216

V. Morton

I. 246

V. Porter

L44

V. llagland

IL 521

V. Rice

1.243

V. Stearns

L 17

V. Wesson

I. 265, 382, 520

V. Wilder

IL 654

V. Wright

II. 233

Hi<h V. Duprce

IL 655

V. Hathaway

n. 125, 137

V. Lambert

IL 170

V. Topping

IL 408, 466, 469

Hichards's Case

IL 567, 583

V. Bickley

II. 381

V. Brown

IL 413

V. Frankum

IL 474

■0. Griffin

IL 467

V. Milsington

L 307, 428

V. Richards I

88, 89 ; IL 357,

392, 447

V. Thomas

IL 501

Richardson v. Allan

IL 467

V. Brown

IL 406

V. Dingle

IL 518

I'. Fcnner

IL 437

V. French

L 124

r. Gower

II. 446

V. Jackson

II. 625

V. Lincoln

L 50 ; IL 442

V. Martyr

L45

V. Parker

IL611,612

V. Richardson II. 634

V. Scobee

IL 427

V, Strong

L 149

Richie v. McCoy I. 544, 548, 550

V. Moore II. 30

Richman v. Richman IL 639

Richmond v. Fagua IL 652

V. Heapy I. 133

Richmond Manuf. Co. v. Davis II. 559

Richter v. Selin I. 41, 590, 595, 596, 607

Ricketson v. Wood II. 244

Ricketts v. Pendleton I. 639 ; IL 499

V. Toulmin I. 626

Rickford v. Ridge IL 72, 73, 85

Ricord v. Bettenham I. 152

Riddle v. Bowman I. 243, 244

V. Moss IL 467

Ridgway v. Day I. 582 ; II. 534

Vol. l.— G i

Ridley r. Blackett IL 216

V. Taylor I. 127 ; IL 465, 478

Ridout V. Bristow 1. 195, 198, 227 ; II. 6,

523, 524

Rieman v. Fisher II. 39

Rigby, Ex parte IL 82

V. Norwood IL 128

Riggs V. City of St. Louis I. 659

V. Lindsay I. 650

V. Waldo IL 121, 129

Righter v. Stall II. 228

Riley v. Anderson I. 221

V. Dickens I. 28

V. Gerrish IL 519, 520

V. Johnson I. 221

Rindge v. Breck II. 151

Riney v. Hill IL 425

Ringgold V. Tyson 11. 469

Ringoe v. Biscoe II. 83

Ripka V.Pope L 311

Ripley v. Greenleaf I. 385, 396, 399 ;

IL 246

Riser v. Snoddy II. 659

Ritchie v. Bradshaw II. 72

V. Moore IL 610

Rives V. Parmley I. 494, 642

Rix V. Nevins I. 1.^37

Roach V. Ostler L 62, 288, 316

V. Thompson L 243, 662 ; II. 458

Roades v. Barnes IL 154, 204

Robarts v. Tucker I. 321, 357 ; IL 64,

80, 81, 485, 590, 596

Robb V. Bailey II. 440

Robbins v. Bacon L 333, 334

V. Eaton 1. 74, 75

V. Hay ward II. 426

V. Otis II. 649

V. Pinckard I. 622, 626

V. Richardson L 224, 226

Robert v. Garnie IL 222, 223, 228

Roberts v. Adams I. 110, HI

t;. Austin I. 94

V. Bethell I. 49, 289 ; II. 489

V. Bradshaw L 617 ; II. 490, 491

». Button 1. 97, 122

v. Eden IL 27, 219

V. Goff IL 416

r. Kilpatrick IL 348

r. Mason L 311, 432, 438

V. Peake L 42, 610

xcvin

INDEX TO CASES CITED.

Roberts v. I'iUow II. 628, 630

V. Slion II. 517

V. Trenayne 11.412,413,414, 417

Robertson v. Kensington II. 21

V. Nott II. 525

V. Parks II. 609

v. Pope I. 99

T. Sheward I. 35

V. Smith I. 247, 249, 251

r. Vogle I. 507 ; II. 241, 245,

246

V. Wood n. 630

Robertsons v. Banks I. 90

Robie ». Flanders II. 634

Robins v. Gibson I. 541, 644

V. Maidstone 11. 487

V. May I. 44

Robinson, Ex parte I. 104

r. Abell 11. 120, 121

V. Ames I. 264, 338, 345, 350,

539, 541 ; II. 463

r. Bank of Darien II. 94, 275,

298, 302, 308

V. Batchelder 11. 532

«. Bland I. 62, 217; II. 155,

318, 319, 324, 326, 376, 394, 410

V. Blen I. 373

V. Campbell II. 327

V. Crandall II. 374, 446

V. Curry II. 292, 299, 301

V. Doolittle II. 226, 227

V. Furbush II. 607

V. Hamilton I. 493

V. Hawksford I. 273 ; II. 59,

72, 73, 74, 94

V. Johnson I. 643

V. Maco II. 620

V. Mamcy II. 175

V. Read IL 154, 155, 179, 184

V. Reynolds I. 180

V. Robinson II. 641

r. Taylor I. 145

». Yarrow L 107, 321,322;

II. 7, 482, 589, 590, 501

Robison v. Lyle I. 2.3.3

Robson V. Bennett I. 273, 514 ; II. 72,

74,75
r. Curicwis I. 469

V. Barley II. 442

V. Oliver 11. 183, 184

Roche V. Campbell I. 306, 307

Rockingham v. Oxenden II. 214

Bank v. Claggett II. 455

Rockwood V. Brown II. 637

Roden v. Ryde 11. 479

Rodes V. Blythe 11. 424

Rodick V. Gandell II. 56, 61

Roe V. Jerome II. 318

Roffey V. Greenwell II. 393

Rogers v. Batchelor I. 126

V. Hackett I. 595, 597, 603, 605,

610

r. Kneeland 11. 130

r. Langford II. 97, 104, 183,

184, 192

V. Miller II. 294, 304, 310

V. Morton I. 183

V. Rathbun II. 416

V. Reed II. 17

V. Rogers I. 201

V. Stevens I. 533, 536, 541, 596,

598, 618, 642, 644, 647

V. Stoever II. 642

V. Walker I. 151

r. Waters I. 201 ; II. 649

Rogerson v. Hare I. 505

V. Ladbroke II. 605, 618

Roget V. Merritt II. 41, 103, 186, 192

Rohan v. Hanson II. 517

Rohde, Ex parte I. 528

V. Proctor I. 500

Rohrer v. Morning Star II. 469

Rolfe V. Caslon I. 199

V. Wyatt II. 250

Rolin v. Steward 11.63,64

Rollins i;. B.irtlett II. 555, 574

V. Stevens I. 140

RoUman v. Baker II. 393

Rolston V. Click I. 140

Rolt V. Watson II. 289, 291, 292, 296, 303

Roosa V. Crist II. 352, 358

Roosevelt V. Cebra II. 36)

V. Woodhull I. 5.'n

Rootw. Taylor II 611

i;. Wallace II. 107

Rordasnz v. Leach II. 4.'I9

Rosii V. Brotherson II. 222

Roscoe??. Halo II. 651, 660

Rose V. Dickson II 408

V. Laffan II. 4.'i't, 451

INDEX TO CASES CITED.

XCIX

Rose V. Learned

II. 510

Ruddell V. Folson

II. 66S

V. M'Leod

II.

360, 363

V. Walker

n. 458

V, Rowcroft

1.41

Ruddcrow v. Huntington

1.205

V. Truax

1.214

Ruff V. Bull

1.375

Rosher v. Kieran

I. 504

V. Webb

1.51

Ross, Ex parte

II. 629

Rugely V. Davidson I. 382,

519

II. 502

V. Bank of Burlington II. 294

V. Bedell I. 188, 189, 634, 635,

640 J II. 342

v. Pearson I. 607

V. Planters' Bank I. 475, I. 476

V. Ross II. 649

V. Russell II. 425

V. Smith n. 45, 50, 53

ij. Whitson 11.167

Rosseau v. Cull 11. 202, 225

Rossiter v. Rossiter I. 101, 118

Rotch V. Edie 11. 330

Rothschild v. Corney I. 271, 272 ; II. 79

V. Currie I. 641 ; II. 325,

329, 336, 339, 340

Rouse V. Redwood I. 599

V. Southard 11. 639

Routh V. Robertson I. 476

Row V. Dawson I. 336

V. Pulver I. 237

Rowan v. Odenheimer I. 476

Rowe V. Tipper I. 504, 514

v.. Young I. 306, 307, 308, 3 1 1

Rowland v. Stevenson 11. 361

Rowlands v. Springett I. 468, 469, 476

Rowley ». Ball 11.290,291,293,295,

297, 303

V. Home II. 258

V. Stoddard I. 248

Rowning v. Goodchild U. 315

Rowt V. Kile 11. 477

Rowton, Ex parte II. 5

Roxborough v. Messick I. 224

Royal Bank of Scotland, Ex parte II. 50

V. Cuthbert II.

360, 361, 363

Royal British Bank v. Turquand II. 35

Royce v. Barnes II. 443

Rucher v. Conyngham IE. 173, 413

Rucker v. Hannay II. 660

V. Hiller I. 534, 538, 540

Ruckersville Bank v. Hemphill II. 607

Ruckmaboye v. Mottichund II. 631, 635

RuddelU. Ambler 11.401,416

Ruggles V. Holdcn I. 237 ; II. 244

V. Keeler II. 327, 382

V. Patten I. 250, 309 ; II. 235,

242, 250

Rumball v. Ball I. 375 ; II. 643

Rumsey v. Leek I. 197

V. Sargent I. 205

Runnion v. Crane II. 577

Runyon v. Latham II. 222

V. Mountfort L 490, 493

Rushing v. Rhodes 11. 642

Rushton V. Aspinwall I. 412

Rushworth v. Moore I. 635

Russ «. Fay 11. 636

Russel V. Ball I. 189

V. Langstaffe II. 567

Russell V. Babcock II. 126

V. Bell 11. 613

V. Blake II. 465

V. Buck L 587, 621, 623 ; II.

126, 333, 347

r. Cook I. 196

V. Copp II. 649

V, Drummond I. 1 1 7

V. Hadduck IT. 275, 277

V. Hankey IL 216

V. Langstaffe L 109, 110, 112,

446, 507; IL 10, 11

V. Lucas II. 425

V. Moseley IL 131

». Phillips L 282,312

V. Swan II. 5

V. Whipple I. 25

V. Wiggin L 294, 297 ; II. 109,

134

Rutherford v. Mitchell IL 450

Rutland's Case II. 502

Rutland Bank v. Buck I. 226

& Burlington R. R. Co. v. Cole

IL 452, 518
Rutledge v. Greenwood II. 246

Ryan v. Barger II. 605, 609

Ryder v. Ellis II. 436

Rvraes v. Clarkson I. 22

INDEX TO CASES CITED.

backet v. Loom is I. 270

Sacrider v. Broiva I. 641

Sadler v. Hoover II. 404

Saffordr. Vail 11.415

r. Wyckoff 1.165,166,169;

II. 89, 494

Sage V. Wilcox 11. 119, 126, 128

Sailly V. Elmore I. 238

St. Catherine, The II. 174

St. Jago de Cuba II. 170

St. John V. Homans II. 61, 71, 78

V. McConnell II. 470, 490

v. Purdy II. 152, 157, 183

St. Louis Perpetual Ins. Co. v. Homer

II. 508
Salem Bank v. Gloucester Bank 11. 38,
90, 101, 186, 189, 477
Salinas v. Wright I. 39

Salisbury v. Gillett 11. 480

Sallee B. Chandler IL 319

Salmon v. Hoffman II. 1C7

V. Webb II. 537

Salomons v. Stavely I. 642

Salter v. Burt L 400, 402 ; IL 68, 69

Saltmarsh v. Planters', &c. Bank II. 426,

427, 428

V. Tuthill L471 ; IL 468

Saltus V. Everett IL 34, 116

Sampet's Case II. 45

Sams V. Stockton II. 647

Samuell v. Howarth I. 246 ; II. 247

Samuels v. Evans I. 34

Sanborn v. Little IL 610

V. Southard I. 268, 382 ; II.

498, .502, 516

Sandefur v. Mattingley IL 306

Sanders v. Anderson I. 36

V. Bacon II. 146, 543

r. Blain L 159

V. Branch Bank II. 1 60

V. Robertson II. 631

T. St. Neot's Union I. 1 63

V. Van Zeller II. 34

Sanderson v. Bowes I. 306, 427, 429 ;

IL 644
V. Collman I. 321 ; II. 482, 590
V. Olmsted II. 629

T. Symonds II. 546

Sandford v. Dillaway I. 446, 528, 556 ;

IL 150

V. Norton 1. 189, 258 ; IL 121,

133, 275, 277

Sands t;. Clarke I. 427, 446, 447, 557 ;

IL 98, 192

V. Lyon I. 401

Sanford v. Allen IL 142

V. Hayes II. 656

V. Mickles I. 146, 264, 380

Sanger v. Cleveland I. 200

V. Stimpson I. 473

Sangster v. Mazarredo II. 481

Sannickson v. Brown II. 647

Sard p. Rhodes IL 217

Sargent v. Appleton II. 239, 240, 242, 248

V. Southgate II. 152, 604, 619

Sarsefield v. Witherly 11. 73

Sasscer v. Farmers' Bank I. 471

V. Walker II. 446

V. Whitely L 493

Sater v. Hendershott 11. 456

Sauerwein v. Brunner IL 433

Saul V. Brand L 482, 487, 489

V. Creditors II. 320, 349

Saunders's Case IL 406

Saunders v. Frost I. 230

V. Lambert 11. 406, 421

Saunderson v. Jackson I. 37

v. Judge L 307, 371, 421,

428, 435, 436, 478 ; IL 492

V. Piper I. 27

V. Warner II. 391

Savage's Case 11. 387, 390

Savage v. Aldren II. 643

V. Bcvier IL 449

V. Davis IL 604

T. King L 79, 81 ; II. 53

r. Merle I. 537; IL 211, 221

V. Rix L 96, 122

Savings Bank v. Bates I. 223, 396, 416

Sawyer v. Iloovey I. 275

V. Baker IL 625

r. Cutting IL2I0

V. Patterson II. 246

». Tappan 11.225,641

Saxton V. Johnson I. 45

Saycr v. Chaytor I. 251

V. Kitchen II. 489

Saylcs V. Tibbitts IL 629

INDEX TO CASES CITED.

Sayre v. Frick
V. Lucas
V. Reynolds

Scales V. Jacob

I. 363, 502

I. 26

n. 550, 577

II. 651

Scaiborough v. Harris I. 508, 554 ; II. 241

V. Reynolds I. 117

Scarpellini v. Atcheson I. 86, 88 ; II.

631, 639

Schcmerhom v. Loines II. 179

Schermerhorn v. Talman II. 408, 432

Schimmelpennich v. Bayard I. 118, 294,

315,330; II. 151

Schlatter v. Rector I. 395

Schmidt V. Limehouse II. 393

V. Radcliffe I. 602, 603, 607, 622

Schnebly v. Ragau 11. 168

Schneider v. Norris I. 282

V. Schiffman 11. 121, 122

Schofield V. Bayard I. 316, 319, 460, 463

Scholey v. Daniel II. 45

V. Ramsbottom II. 80, 213

V. Walsby II. 220, 221, 487, 488

V. Walton II. 660

Schollenberger v. Nehf II. 120, 121

Schoneman v. Fegley II. 499

Schoonmaker v. Roosa I. 178, 197, 198

Schroeppel v. Corning II. 642

Schroeppell v. Shaw I. 237

Schroyer ». Lynch 11.315

Schultz V. Astley I. 115, 290 ; IL 482,

483, 587
Schweizer v, Weibcr II. 616

Scofield V. Day L 664 ; IL 341, 370, 376,

377
ficott V. Bevaa I. 664 ; II. 369

V. Brest II. 406

V. Cleaveland II. 301

V. Commonwealth II. 92

V. Conover IL 96

V. Fisher II. 222, 223

V. Gillmore I. 217

T. Greer I. 578, 592

V. Haddock IL 637, 640

T. Lewis II. 420

». Lifford L 328, 481, 514, 541;
IL 237, 492
V. Lloyd II. 468

V. M'Lellan I. 116

r.Nesbit 11.416

». Nichols IL 638

Scott V. Searles

V. Surman

V. Walker
Scoville V. Canfield
Scriba v. N. A. Ins. Co.
Scribner v. Fisher

L 158

IL 154

IL 562, 577

IL 318, 367

II. 330

II. 325, 364

Scruggs V. Gass II. 89, 98, 103, 106, 187,

194

Scudder v. Andrews I. 210

V. Morris II. 393

Scull V. Edwards L 21

Seabury ?;. Hungeiford I. 580; II. 123,

125

Seacord v. Burling II. 505

V. Miller I. 563, 572

Searight v. Calbraith II. 364, 365

Sears v. Brink IL 123

V.Smith II. 163

V. Wright II. 510

Seaver v. Dingley II. 207

V. Lincoln I. 264, 265, 359, 372,

377, 519

r. Phelps I. 150; II. 6

Seay v. Bacon II. 639

V. Bank of Tennessee I. 33

Sebag V. Abitbol I. 309, 329, 352, 426

Sebree v. Dorr IL 286, 301, 473

Sedgwick v. Jager II. 473

Seeley v. Engell 11. 615

Segond ». Thomas II. 411

Selby V. Eden I. 308, 309, 425

Selden v. Pringle II. 283

Selfridgew. Northampton Bank II. 95, 222

Selleck v. Sugar Hollow Turnpike Co.

IL 225

Selser v. Brock I. 236

Semmes v. Magruder II. 660

Semple v. Burd IL 167

V. Cole IL 577

V. Morrison I. 71

Seneca Co. Bank v. Neass I. 432, 482,

490, 498, 645

V. Schermerhorn II. 434

Sentance v. Poole I. 150

Serle v. Norton I. 41, 42, 273 ; II. 69, 74

r. Waterworth I. 196 ; II. 6

Serrell v. Derbyshire Railway Co. I. 271 ;

IL 79

Sessions v. Moseley II. 54, 56, 446

r. Richmond 11. 421

Cll

INDEX TO CASES CITED.

Seton V. Seton I. 178, 179

Seventh Ward Bank v. Hanrick I. 513,

515, 518; II. 244

Sfcwell V. Evans II. 479

Sexton V. Fleet 11. 53

Seymour v. Deming II. 634

T. Sexton n. 227

». VanSlyck 11.119

Shackleford v. Douglass II. 651, 654

Shallenberger v. Ashworth II. 634

Shamburgh r. Commagere I. 422 ; 11. 467,

469, 470
Shank, Ex parte II. 170

Shaukhn v. Cooper I. 637, 640, 641, 644 ;

II. 325

Shannon v. Dunn II. 633

V. Langhora I. 199

Sharp, Ex parte II. 82

V. Bailey I. 309, 557 ; II. 498

V. Emmet I. 104, 105

». Head II. 634

V. Smith II. 472

». Teese I. 216

V. Ward I. 393

Sharpe v. Bagwell II. 554

V. Bingley II. 245

T. Drew I. 645

Sharpies v. Rickard II. 331

Sharpley r. Hurrel II. 4 1 3

Shaver v. Ehle II. 37, 38, 306, 477, 479,

589, 600

Shaw V. Allen n. 651

V. Broom II. 472

V. Croft I. 503, 504

v. Emery I. 80

V. Grifith II. 246

V. Loud I. 243

V. Marlsliam II. 490

V. Methodist Epis. So. 11. 146, 540

V. Newell II. 652, 653

T. Nolan II. 246

V. Picton II. 222

V. Pratt I. 248

r. Rccd 1.311,432,446,450,528

V. Stone I. 170

Shcarm v. Burnard II. 286, 473

8hed». Brett 1.358,362,411,413,414,420,

457, 458, 473, 478, 497, .505 ;

II. 213, 214, 462, 492

V. Pierce II. 532, 538

Sheehy v. Mandeville I. 249, 381 ; II.
153, 200, 218, 252
Sheets v. Pabody I. 156, 157

Shelby v. Gay II. 383, 634

Sheldon v. Benham I. 401, 402, 483, 641 ;

II. 495

V. Kendall II. 610

V. Middleton 11. 444

V. Steere II. 424

Shelmerdine v. Duffy II. 459

Shelton v. Braithwaite I. 472, 495

V. Darling I. 93, 97, 98, 102, 169

T. Gill 11. 410

V. Marshall II. 319

V. Tiffin II. 168

Shenton v. James I. 45

Shepard r. De Bernales II. 155

V. Haley I. 483

V. Hall I. 394, 478, 488

T. Hawley I. 363, 502

Shephard v. Watrous I. 197

Shepherd v. Chamberlain I. 419

V. Evans II. 449

V. Temple I. 204 ; II. 522

Shepley v. Waterhouse II. 656

Sheppard's Case II. 588

Sheppard v. Graves I. 388

V. Hamilton II. 410

V. Spates I. 401

Sheratz v. Nicodemus II. 167

Sherer v. Easton Bank I. 596, 608, 610,

622, 636, 647

Sherman v. Clark I. 498

V. Comstock II. 68

V. Gassett II. 320

V. Goble r 14

V. Wakeman II. 649, 652

Sherrill v. Hopkins II. 318, 319, 325,

326, 333, 362

Sherrington v. Yates II. 447

Sherrod v. Bennett II. 649

V. Rhodes I. 555, 596, 599

Sherwood v. Dunbar II. 638

V. Roys II. 209, 444

V. Sutton II. G40

Shibla V. Ely II. 629

Shields v. Commonwealth II. 301

V. Taylor I. 45

Shirley r. Fellows I. 555

V. Todd II. 604

INDEX TO CASES CITED.

Shirreff D. Wilks I. 125, 143 ; II. 477

ShirtliflFe v. Gilbert II. 245

Shitler v. Bremer II. 651

Shiver v. Johnson II. 475

Shoemaker v. Benedict II. 658

Shook V. State I. 241 ; II. 135

Short V. Bryant II. 633

Shortbridge's Case II. 82

Shortredc v. Cheek II. 119, 131

Shotwell V. M'Kown I. 99, 170

V. Miller I. 250

Shove V. Wiley I. 369 ; II. 492

Shrieve v. Combs I. 470

V. Duckhara I. 273, 472 ; II. 59,

72, 74

Shriner v. Keller I. 553 ; II. 159

Shrivell v. Payne I. 24

Shuck V. Wight II. 414

Shukard's Case II. 586

Shumway v. Keed II. 152

Shute V. Robins I. 264, 268, 340, 342,

343,344; II. 94

Shuttlesworth v. Noyes I. 79, 86 ; II. 447

Shuttleworth, Ex parte II. 41, 184, 601

V. Stephens I. 62; II. 471

Sibley v. Fisher II. 577, 579

V. Lumbert II. 655

T. McAUaster I. 238

V. Phelps II. 637, 662

Sibree v. Tripp I. 26 ; II. 155, 218

Sicard v. Whale II. 327, 367, 369

Sice V. Cunningham I. 264, 269, 376,

378, 379, 380, 600, 601 ; II. 504, .505

Sidaway v. Hay IL 361, 363

Siddall ?;. Rawcliff II. 252

Sidford V. Chambers II. 486

Sidwell V. Evans I. 198

Siffkin V. Walker I. 130

Sigerson v. Mathews I. 586, 595, 596, 604

Siggers v. Brown I. 486

V. Lewis II. 214, 624

Sigourney v. Lloyd I. 17, 119; II. 43,

210
V. Severy II. 637

V. Wetherell IL 135, 139, 247
Sill r. Worswick II. 387

Silver v. Henderson I. 309

Silver Lake Bank v. North IT. 358

Silvisr Ely I. 198

Simmonds v. Parminter II. 453, 455, 487

Simmons v. Taylor II. 65, 586

V. Williams II. 607

Simms v. Clark IL 38, 39, 101, 189,

190, 600, 601

V. Smith II. 640

Simons v. Steele IL 125, 128, 130, 132.,

137

V. Waterman II. 438

Simonton v. Steele I. 195 ; IL 522

Simpson v. Clarke I. 186, 187, 191

V. Fullenwider II. 420, 427

V. Griffin I. 662

r. Stackhouse II. 577

V. Swan I. 104

V. Turney I. 514

V. Warren IL 418

Sims V. Bond IL 61

V. Goudelock II. 638, 642

Simson v. Ingham IL 224, 228

Sinclair v. Baggaley I. 49

V. Lynah I. 470

V. Piercy II. 92

Singleton v. Lewis II. 425

Sison V. Kidman I. 196

Sisson V. Ban-ett I. 233 ; II. 517

V. Thomlinson I. 554, 556

Sissons V. Bicknell IL 383

Sistermans v. Field I. 189, 279

Sizer v. Heacock II. 242

V. Miller II. 434

Skeate v. Beale IL 493

Skilbeck v. Garbett L 481

Skinner v. Deming IL 107

V. Somes II. 46

Skofield V. Haley II. 137

Skowhegan Bank v. Baker II. 445, 453

Slack V. Lowell II. 399

V. McLagan L 210; IL 168

V. Moss II 470

Slacum V. Pomery IL 326, 336, 339,

342, 343, 346,348, 371, 372

Slade V. Halsted L 178; IL 523

Slagle V. Rust II. 556

Slark V. Highgate Archway Co. I. 164

Slater v. Cave IL 634

V. Lawson II. 659

V. West IL 271

Slayback v. Jones IL 608

Slayinaker v. Gundacker II. 20.?, 204

Sleeth V. Murphy IL 633

01 V

INDEX TO CASES CITED.

Slegg V. Phillips

n. 465

Smith V. Chandler

I. 86

Sleigh V. Sleigh

L 555

V. Chester ]

[.521, 322; IL 81,

Slipher r. Fisher

1.235

99, 196,

212, 482, 483, 485,

Slipper 1 . Stidstone

n. 608

590, 598

, 599

Sloan V. Petrie

II. 623

T. Clapp

I. 251

T. Sloan

n. 648

T. Clarke

n. 26, 485

Slocum V. Hooker

1.77

V. Clopton

I. 255

Slocumb V. Lurty

II. 160

X. Crooker

n. 558, 582

V. Holmes

II.

152, 160

t). Crosby

11. 384

Sloman i'. Bank of England

11.82

». Crutcher

II. 457

V. Cox

II.

235, 552

■V. Dawson

II. 647

Sloo V. Roberts

II. 296

V. De la Fontaine I. 305

Slosson V. DuiF

II. 434

V. De Witts

L 153; IL 5. 29

Small V. Browder

II. 618

T. De Wruitz

IL 5, 29, 472

V. Sacramento Navigation

X. Doak

I. 232

Mining Co.

II. 478

T. Dunham

II. 555, 637

n. Sloan

II.

132, 133

». Eastman

II. 650, 651

V. Smith

. 28, 266

r. Elder

II. 507

Smalley r. Bristol

145, 537

V. Essex Co. Bank II. 209

r. Edey

1.45

T. Ewer

IL 610

V. Wight

11.53

x. Ferrand

II. 184

Smallwood v. Vernon

II. 25

T. Finch

II. 120

V. Woods

n. 244

V. Fisher

L 490, 491

Smart ». West Ham Un

ion

I. 163

x. Fiske

II. 641

Smedcs v. Utica Bank

482, 488

V. Gibbs

L 367, 641. 643

Smedley v. Roberts

II. 409

X. Gibson

L 116

Smith's Case

I. 62

X. Goddard

IL96

Smith, Ex parte

II. 242

X. Harper

IL 203, 206

r. Abbot

I. 301

X. Hill

II. 646

V. Anders

II. 621

V. Hiscocks

L 223

V. Atwood

II.

327, 634

X. Iluie

IL 606

V. Bank of Wash

ngton

I. 412;

V. Ide

IL 128

II. 462

X. Jamesons

IL82

r. Barber

II. 519

X. Janes I.

273 ; IL 59, 73, 74

V. Bartholomew

I 245

X. Johnson

II. 615

V. Battens

1.41

; II. 663

X. Kendal (1 Es

p.) I. 408 ; IL 445

V. Beckct I.

528,

556

; II. 239

X. Kendall (6 T

. 11.) I. 227, 408 ;

V. Bohemc

1.43

II. 4, 210, 445

V. Boultoii

468,

470, 477

V. Kittridgc

L 179, 197;IL55

V. Braiiic I. 183

;II.

266

283, 493

r. Knox I. 183, 236, 326 ; II. 27

7>. BrinckcrliolF

II. 614

T. Lcaper

II. 6.50

«. Brooks

195

: II. 522

X. Little

L 471, 51.5, 643

V. Brown

11.361

X. Lord

IL 474

•c. Brush

II. 407

X. Loyd

II. 228. 230

v. Bufliannn II.

.319

341

360, 36.1

X. Lusher I.

124, 129, 137, 200;

V. Burton

II.

437, 443

11. 440

p. Bytliewood

375, 407

X. M'Clure

I. 14 , IL 293, 474

e. Campbell

II. 661

V. McGowan

II. 580

». Cnrtwright

I. 163

X. M'Lcan

1. 311, 4.32, 4.33

r. Cassity

II. 642

V. Maploback

U. 53i

INDEX TO CASES CITED.

Smith V. Marsack
V. Martin
V. Mayo
V. Mead

I. 321 ; II. 459

U. 487

1.74

XL 318, 320, 376

V. Meclianics', &c. Bank I. 2.'J8 ;

n. 64, 81, 592

V. Mercer II. 38, 80, 81, 99, 195,

212, 482, 588, 590, 598, 599

V. Morgan

II. 467

V. Mullett

481, 513, 514

V. Myler

II. 609

V. Newby

XL 636, 646

V. Nichols

II. 409

V. Nightingale

I. 38

V. Nissen

1.283,317

V. Pedley

I. 83

V. Philbrick

I. 455, 459

V. Pickering

154 ; II. 5, 16

V. Prager

II. 465, 471

V. Ralston

I. 643

V. Roach

I. 337, 513

V. Robinson

1.311

V. Rockwell

II.

261, 263, 298,
300, 302

V. Rogers

II. 161,201

r. Sainsbury

11.477

V. Schanck

n. 472

». Screven

II. 224

V. Shaw I

. 664

; II. 370, 425

V. Sheppard

II.

211, 255, 285

V. Simms

II.

655, 662, 663

V. Smith I. 28

; II.

154, 186, 319,

325,

326, 359, 360,

377,

546, 605

V, Spinolla

327, 367, 369

V, Spooner

I. 89

V. Steele

I. 241

r. Stephens

II. 508

V. Strong

11.89

V. Talbot

II. 649, 651

V. Thatcher

I. 547

V. Thome

II. 466

V. Townsend

II. 659

V. Van Loan

I. 222

V. Walker II.

290,

295, 297, 310

V. Weld

II. 559

V. Whiting I.

159,

474, 475, 476 J
II. 4, 6

V. Wigley

II. 229, 230

r. Wilson II

154

155, 182, 644

Smith V. Winter I. 147 ; II. 248, 24J

V. Woodcock II. 458

V. Young II. 300, 305, 310

Smitherman v. Kidd II. 297

Smithwick v. Anderson II. 469, 470

Smurr v. Forman X. 45

Smyley v. Head I. 244

Smyth V. Hawthorn I. 478

V. Strader I. 126; II. 440

Snaith v. Mingay I. 49, 58 ; II. 10, 12,

331
Snee v. Prescot I. 17 ; II. 178, 210

Sneed v. Hanly II. 641

V. Mitchell II. 4

V. Wiester II. 200, 218, 230

Snelgrove v. Martin II. 472

Snellgrove v. Baily II. 54

Snoddy v. Haskins II. 640

Suodgrass v. Branch Bank, at Decatur

II. 286, 299

Snow V. Conant II. 608

V. Leatham II. 266, 271

V. Peacock X. 258, 260 ; II. 256,

257, 259, 271, 272

V, Perkins I. 476

». Perry II. 91, 98, 103, 194

V. Sadler II. 271, 272

Snyder z). Findley II. 155, 159, 163

V. Riley I. 255

Soares v. Glyn II. 22

Society for Propagation of the Gospel

V. Wheeler II. 358

Soffe 2). Gallagher XX. 157, 159, 182

Sohier v. Loring I. 241

Solarte, Ex parte I. 530

V. Palmer X. 467, 469

Solita V. Yarrow II. 477

SoUee V. Croft II. 640

Solly V. Forbes X. 249 ; II. 237

V. Hinde I. 207; II. 521

Solomon v. Gregory X. 240; II. 245

v. Holt II. 603

V. Turner I. 205, 211

Solomons v. Bank of England I. 5 1 , 226 ;

n. 42, 89, 188, 269, 270, 280, 282

t). Dawes II. 210

V. Jones II. 527

Sommerville v. Stephenson XI. 502

Soome V. Gleen II. 413

Soule V. Dawes II. 471

CVl

INDEX TO CASES CITED.

South, Ex parte I. 336

Sonthall v. Rigg I. 201

South Carolina Bank v. Case I. 131

Southcot V. Watson II. 88, 188

Southerland v. "Whitaker I. 236

Southern Life Insurance & Trust Co. v.

Gray II. 450, 452

Southwick V. Ely II. 437

Southwort V. Smith II. 623

Soward v. Palmer 11. 214, 624

Sowerby v. Butcher I. 94, 103

Spalding v. Bank of Susquehanna Co.

II. 304

V. Vandercook I. 209

Spangler v. McDaniel I. 548 ; 11. 72

V. Pugh II. 473

Spann v. Baltzell I. 394, 466 ; 11. 502, 527

Sparhawk v. Buell I. 67

Sparks v. Garrigues II. 424

V. Pico n. 632

Sparrow v. Chismau 1. 134

Spaulding v. Adams II. 170

V. Evans I. 34

Speake v. Barrett II. 639

V. United States II. 558

Spear v. Atkinson I. 537 ; II. 200

V. Dey II. 607

V. Ladd II. 8

V. Myers I. 222

V. Pratt I. 282, 283

Spears v. Hartley II. 632

Speers v. Sterrett 11. 603, 606

Spencer i;. Babcock II. 610

V. Bailey II. 171

V Ballou II. 490

V. BankofSalina 1.490,491,493

r. Blaisdell II. 92

V. Harvey I. 563, 570, 572, 582 ;

11. 534

V. Morgan II. 006

V. Sfiencer II. 630

V. Stirling I. 508

V. Tililen II. 413

Spicer r. Norton 11. 141

Spies e. Gilmore 1. 450, 456; II. 120,

123, 520

V. Ni'wbcrry I. 471

Spillcr V. Westlako I. 203

Spindlcr v. Grcllctt I. 427

Spires v. Ilumot II. 228

Splitgerber v. Kohn
Spong V. Wright
Spooner v. Gardiner

V. McConnell
Spratt V. Hobhouse

n. 355, 542

II. 651

I. 186, 543

II. 348

II. 93, 94

Sprigg V. Bank of Mount Pleasant I. 235

T. Cuny 1. 358 ; II. 442

Spring V. Lovett II. 467, 509

Springer ». Hutchinson II. 133

V. Toothaker I. 242, 246

Springfield Bank v. Merrick II. 148, 540

Sproat V. Matthews I. 283, 285, 301, 302,

328, 329, 332

Sproule V. Legg I. 307, 428 ; II. 342

Spurlock V. Union Bank I. 596. 601, 607,

609

Spybey v. Hide 11. 210

Staats V. Howlett I. 130

Stackhouse v. Barnston II. 629

Stackpole v. Arnold L 93 ; II. 519, 521

Stacy V. Baker II. 333, 338

Stadt V. Lill 11. 131

Stafford v. Rice II. 469

V. Van Rensselaer II. 167

V. Yates I. 504 ; II. 245, 247, 459

Stahl V. Berger II. 566, 567, 574

Stainback v. Bank of Virginia I. 108,

109, 362, 639

V. Read I. 107, 108, 109

v. Penning II. 173

V. Shepard II. 173, 174

Stainer v. Tysen I. 108, 109

Stalker v. M'Donald I. 224 ; II. 43

Stall r. Catskill Bank 1. 140, 141

Stam V. Kerr II. 153

Stamford Bank v. Benedict II. 228

Stamps V. Brown I. 483

Standage v. Crcigliton I. 615

Stanley v. Kenii)toa II. 415, 637

i;. Westrop II. 421

Stanton v Blossom I. 414, 478, 505, 508,

537, 543; II. 214, 462

V. Eager II. 178

Stan wood v. Stan wood I. 86 ; II. 447

Staples V. Franklin Bank I. 401, 407, 411,

414, 415, 416, 419; II. 461

V. Okincs I. 580

Stapleton v. Conway II. 379

Starcy v. Barns II. 214

Stark V. Ilunton II. 425

INDEX TO CASES CITED.

evil

Starke v. Cheesman

I. 62, 350

Stearns i

. Burnham I]

. 6, 354, 373, 374

Starrett v. Barber

II. 224, 225

. Wrisley

I. 260

State V. Bank of Fayetteville

11.90

Stebbing

V. Spicer

II. 4, 480

V. Blackwell

II. 640

Stcdman

V. Gooch 1.435; II. 85, 154,

■r. Boies

II. 452

155, 184, 186, 217,492

V. Bouncy

II. 588

Steel V.

Steel

II. 612

V. Brown

II. 588

Steele v.

Harmer

L 325 ; II. 237

V. Clark

II. 384, 633

Sawyer

L 662

V. Corpening

1.47

Spencer

IL 577

V. Crawford

II. 588

Steele

II. 640

V. Fleming

II. 663

Towne

II. 650

V. Floyd

II. 586

Whipple

IL 411

V. Grooms

II. 587

Stein V.

Yglesias

L 289 -, II. 604

V. Heyden

II. 588

Steinhauer v. Witraan

II. 210

T. Humphreys

II. 583

Stciametz v. Currey

1.507

V. McKenzie

II. 588

Stephens v. Foster

IL 272

V. McLeraa

II. 545

V. Graham

IL 551, 577, 581

V. Mix

II. 588

V. McNeill

II. 456

V. Morton

II. 586

V. Wilkinson

I. 206

T. Polke

II. 559

Stephenson v. Dickson

L 511,512

V. Purcell

II. 663

V. Doe

II. 634

V. Richmond

I. 68

V. Primrose

L 482, 487, 489,

r. Swope

II. 384, 633

562, 569

». Taylor

11.410

V. Roper

II. 301

V. Tindal

II. 588

Steptoe V. Harvey

II. 406

V. "Weaver

II. 588

Sterling

V. Bender

IL 437

Ex rel. Commissioners v. Van

V. Marietta, &c.

Trading Co.

Pelt

II. 560

II. 209,

242, 245, 443, 459

Bank v. Aersten

II. 100, 312

S terry i

?. Robinson I

350, 351 ; IL 463

V. Ayers

I. 480, 497

Stetson

V. Exchange Bank II. 613

V. Bowers

1.656

Stettheimer v. Meyer

I. 222

V. Byrd

II. 632

Stevens v. Austin

II. 207

V. Coquillard

II. 406, 428

V. Barringer

n. 397

V. Cowan

II. 412, 422

V. Beals

LSI

V. Fearing

II. 212

V. Blen

II. 605

V. Henncn

I. 488, 499

V. Blunt

1. 40

V. Hurd 1. 369, 425 ; II. 1 52, 51 6

V. Bomar

IL 637

V. Napier

I. 436, 437

V. Bruce

L 264

r. Rodgers I

656 ; II. 434

V. Davis

n. 407, 410

V. Sea well

II. 635

V. Foster

II. 634

V. Slaughter

I. 483, 502

V. Gaylord

L 162

r. Smith

I. 393

V. Jackson

L71

V. Van Horn

11.88

V. Lincoln

IL418

v. Watkins

I. 238

V. Lloyd

IL 565

v. Wilson

II. 245

V. Lynch I.

246, 596, 607, 623 ;

of Indiana r. Hayes I. 641

IL 249, 467

of Arkansas v. Bank of Wash-

r. Mclntire

L 212

ington

11.52

V. The Sandwich IL 171

Illinois V. Delafield

11.35

v. Strang

L 33 ; II. 592

Steadman v. Duhamel

I. 57 ; II. 330

V. Thacker

L 327 ; II. 597

CVlll

INDEX TO CASES CITED.

Stevenson v Au (tin

1.245

r. Unkefer

11. 413, 428

Stewart v. Ahrenfeldt

I. 196

T. Allison

I. 641

V. Anderson

11.51,610

V. Desha

I. 544

C.Eden 1.362,441,449,490,501

V. EUice II. 377

V. Kennett I- 504

V. Lee II- 65

V. Marston H- 641

V. Small I. 222

V. Spedden II. 645

V. Stewart I. 196

v. Vaughan I- 243

Stickney v. Clement II- 604

Slierneld v. Holden II. 43

StillwcU r. Bobb 1-311

Stinson v. Brennan I- 243

Stipp V. Brown II. 633

Stivers v. Prentice I. 366, 422, 516

Stock r. Harris 11.315

Stockbridge v. Damon I. 264 ; II. 604

Stocken v. Collin (7 M. & W.) I. 468,

469, 478, 513

V. Collins (9 Car. & P.) I. 485

Stockett r. Sasser II. 648, 649, 650

Stocking V. Fairchild II. 535

Stockley v. Clement II. 257

Stockman v. Parr I. 472, 475

Stocks V. Van Leonard II. 640

Stockton V. Graves II. 619

Stoddard v. Doane II. 646, 651, 660

V. Kimball II. 44, 494

Stoessiger v. Southeastern Railway Co.

IL 316

Btokes V. Brown I. 76

V. Forman II. 615

Stone, Ex parte II. 613

V. Chambcrlin I. 146 ; IL 160, 200

V. Compton I. 236

V. Hubbard II. 448

V. Mnrsh II. 82

r. Metcalf II. 474, 578

V. Seymour IL 223, 227, 228

r. Sprague II. 623

V. Vance II 469

Stoner r. Ellis IL 472, 578

Stones r. Butt 11.441

Stoney v. Bcnabien II. 121

Storer. Ex parte II. 639, 647

V. Coe IL 410, 414

V. Logan L 282, 294, 296 ; II. 466

Storm V. Stirling I. 34, 35

Storms V. Thorn L 246

Stothart r. Parker I. 530

Stott V. Alexander I. 508

Stoughton V. Dimick II. 636

V. Lynch II. 425

V. State IL 587

Stout V. Ashton II. 247, 297

». Cloud IL 550, 552, 566

Stow V. Yarwood IL 616

Stowe V. Colburn I. 309, 4.30

V. Hubbard II. 444

Strader v. Batchelor I. 44, 394 ; II. 68

Strafford Bank v. Crosby I. 240 ; IL

240, 533
Straker v. Graham I. 59, 268, 269, 340,

343, 345

Strang v. AVilson II. 469

Strange v. Ellison IL 37, 181, 187, 600

v. Lee II. 229

V. Price L 468, 469

V. Wigney I. 258 ; IL 257, 259,

271

Stranger v. Searle II. 476

Stratton v. Mathews II. 458, 466

Straus V. Eagle Ins. Co. IL 610

Strawbridge v. Robinson I. 58

Strawn v. Hook IL 655

Streater v. Bank of Cape Fear IL 260,

261, 313
Stribbling v. Bank of the Valley II. 408
Strithorst v. Graeme II. 635

Stroheckcr r. Cohen I. 299

Strong V. Farmers & Mechanics' Bank

II. 621

V. Foster I. 229, 234, 237, 326 ;

II. ,502, 515

V. Hart IL 15.5, 184

V. Riker II. 124

Strothcr r. Lucas II. 324

Strykcr v. Vanderbilt II. 529

Stuart V. Bute IL 89, 92, 188

V. Grecnlcaf IL 9, 357

V. Kirkwall I. 79

Stubbs V. Goodall II. 521

Stuckert y. Anderson 1.371,492

Stump r. Napier II 469

INDEX TO CASES CITED.

CIX

Sturdy v. Ilendeison I. 407 ; II. 644

Sturges V. Crowninshield II. 322, 326,

S.-iO, 361,362, 364,381, 383

v. Derrick I. 492, 528

V. Smith II. 608

Startevant v. Ford II. 29

Styles V. Wardlo I. 386, 387

Sublette v. Tinney II. 639, 640

Suclcley V. Fursc I. 152, 210

Suffolk Bank v. Worcester Bank II. 394

Sullivan v. Deadman I- 638

Tj. Mitchell 1.311,432

Sully V. Frean I. 209

Sumner v. Brady I. 216

r. Ford 1.310,429

Susquehanna Bridge, &.c. Co. v. Evans

II. 519

Sussex Bank v. Baldwin I. 357, 358, 359,

421, 425, 470, 511, 512, 513, 514,

516, 589, 596, 600, 601,604, 619

Sidney College v. Davenport

I. 171

Sutcliffe V. M'Dowell I. 539, 540, 546,

552, 584 ; II. 59

Suter V. Sheeler II. 651

Sutton V. The Albatross II. 161, 172,

176, 177

T. Gregory I. 641 ; II. 495

V. Toomer 11. 549, 565, 573, 644

V. Warren I. 88 ; II. 447

Suydam v. Barber I. 251 ; II. 375

V. Bartle II. 410

V. Vance I. 240 ; II. 245

V. Westfall II. 410, 433

Swain v. Ettling II. 494

Swanr. Chandler I. 215

V. Cox 1.301, 302; II. 517

V. Steele I. 127, 137

Swansey v. Brock I. 303

Swartwout I'. Payne 11.417

Swasey v. Vanderheyden I. 68, 69

Swayne v. Wallinger II. 631

Sweat V. Hall I. 89 ; II. 447

Sweet V. James II. 176

Sweeting i;. Fowler I. 35 ; II. 4, 480

V. Halse I. 328 ; II. 565, 568

Sweetscr v. French I. 29, 125, 127, 140,

141, 142, 279; 11.43

Swetland v. Crcigh I. 47

Swett V. Dodge II. 372, 376

Swift ». Beers II. 107

V. Crocker I. 244

V. Ellsworth II. 438

T. Stevens 11.293,297,305,306,307

V. Tyson I. 221, 223, 257 ; II. 43

Swinyard v. Bowes I. 503

Sydnor v. Gascoigne I. 639

Sykes v. Lewis II. 610

Sylvester v. Crapo I. 264, 265, 269.

377, 378

r. Downer II. 121, 124, 140, .348

V. Staples II. 501

Symonds v. Atkinson II. 293

r. Cockerill 11.413

Taber v. Cannon I. 93, 116

Taft V. Sergeant I. 67, 73, 76

Tagart v. Indiana II. 635

Talbot V. Bank of Rochester I. 321, 322 ;

II. 485

V. Clark I. 510, 515; II. 468

V. Gay II. 118, 137

Talleyrand v. Boulanger II. 319, 356, 367

Taliiaferro v. King II. 425

Talmage v. Burlingame 11. 246

Tankersley v. Graham II. 520, 521

Tanner v. Bean I. 426 ; II. 473

V.Hall 1.126

V. Smart II. 648, 652, 660

Tapley v. Martens II. 86, 155

Tappan v. Bailey I. 116

V. Ely II. 146, 543, 545

V. Kimball II. 658

V. Poor II. 326

Tarbell v. Sturtevant I. 192 ; II. 437

Tariii v. Morris II. 458

Tarleton v. Alihusen II. 155, 232

V. Shingler II. 565

Tartar, The II. 174

Tarver v. Nance I. 464, 538, 542, 550

Tasscll T. Cooper II. 64

V. Lee n. 71

V. Lewis 1.391,401,402; 11.41,45.

Tate V. Garland II. 636

V. Ililbert L 178, 287 ; IL 56, 61, 82,

210
Tate V. Wellings II. 409

INDEX TO CASES CITED.

Tatlock J. Harris I. 32, 336 ; II. 50, 51,

585, 592
Taunton Bank v. Richardson I. 585, 589 ;

II. 316

Tayloe v. Riggs II. 305

V. Sandiford II. 222, 223

Taylor's Case (1 Car. & K.) II. 69

(1 Lcacli) II- 585

Taylor v. Bank of 111. I. 497, 643, 647

V. Bales I- 334

V. Beck I. 237 ; II. 469

r. Briggs 11.155,184

V. Croker I. 70, 321 ; II. 3, 482,

484

T. Dobbins I. 23

». French I. 572, 575, 582, 539 ;

II. 68

V. Gallaud I. 247

V. Heriot I. 244

V. Higgins II. 487

r. Jacoby I. 385, 415; II, 461

V. Jones I. 596, 614, 623 ; II. 497

V. Kinlock I. 41

V. Kymer II. 22G

V. Luther II. 468

V. McLean I. 99

V. Moseley IL 577, 579

V. Okey II. 605

V. Patrick I. 196

V. Phelps II. 387

V. Rymer 11. 222

r. Snyder L 441, 449, 450, 451,

454, 456

V. Spivey II. 650

V. Stcdman II. 652

V. Talbot II. 223

V. Wilson IL 68, 85, 86

V. Young L 523, 524; IL 71

Tazewell v. Whittle II. 649

Teaguc's Case IL 583, 586

Tcague v. Hubbard L 137

Teal V. Ayres IL 636

Tcall c. Felton IL 315

Teaz V. Chrystie IL 150, 154, 169

Tebbctta v. Dowd I. 596, 607, 612, 613,

621, 622, 623

Teed v. Elwortliy I. 66

Tempest v. Ord II. 182

Temple r. Gove II. 302

i;. Puilcn I. 112, 113, 290; IT. 12

Temple v. Scaver I. 145

Templin v. Krahn II. 291, 304, 307, 448

Ten Eyck v. Brown II. 133, 138

V. Vanderpoel I. 198

r. Wing II. 649

Tennant v. Strachan L 361 ; II. 210

Tenney v. Prince IL 121, 124, 131

Tercese v. Geray II. 297, 302

Terrel r. Townsend IL 519

Terry v. Fargo I. 1 1 G

V. Parker I. 463, 534, 537, 557

Texira v. Evans II. 36

Thacher u. Dinsmore I. 90, 161,196;

IL 150, 151, 152

Thackray r. Blackett L 528, 534,546;

IL 260, 261

Thame y. Boast IL 217

Thames Haven Dock, &c. Co. v. Hall

IL 453

Thatcher v. Winslow II. 437, 443

Thayer v. Buffum L 137 ; II. 440

V. Grossman II. 467, 469, 470

V. King n. 294, 295, 297, 303

Theobald iJ. Colby IL 619

V. Stinson II. 647

Thetford v. Hubbard IL 621

Thibodeau v. Patin IL 248

Thicknesse v. Bromilow I. 130

Thimbleby v. Barron IL 237, 241, 532

Thing V. Libbey 1. 72, 75

Thomas v. Beckman II. 377

V. Bishop I. 93, 103

V. Black IL 634

V. Brinsfield IL 629

V. Dow I. 241

V. Fenton I. 551 ; IL 72

V. Eraser I. 251

V. Hill IL 612

V. Mason II. 416

V. Newton I. 186

V. Pago II. 523

T. Shoemaker I. 384, 396, 411

r. Todd IL 38, 91. 101, 102,

103, 105, 189, 190, 600, 601

V. Woods II. 139

V. Young II. 618

Thomason v. Odum II. 634

Thomasson v. Boyd I. 75

Thomcs V. Cleaves IL 417

Thompson's Case IL '76

INDEX TO CASES CITED.

CXI

Thompson v. Armstrong I. 188

V. Briggs II. 154, 161, 201

V. Brown II. 229, 231

V. Carroll I. 260

V. Cartwright II. 443

V. Clubley II. 27

V. Cook I. 309

V. Crutcher I. 228

V. Dominy II. 34, 116

r. Emery 11.46,50,51,

52, 53

t>. Finden 11.179

r. Fisher II. 647

V. Flower I. 358 ; II. 453

V. Giles II. 43

V. Gilreath II. 662

V. Gordon II. 641

r. Hale I. 264, 273

V. Jones II. 414

V. Ketcham I. 381, 424 ; II.

320, 325, 333, 350, 376,

379, 504, 532

9. Lay I. 74, 76

p. McClelland II. 603

V. Mosely II. 579

». Nesbit 11.406,412

». Percival I. 135; II. 199,

202, 218

V. Peter II. 659

V. Pitman II. 83, 84

V. Powles II. 377

V. Rawles II. 530

V. Shepherd II. 27, 29, 493

V. Sloan I. 46

V. State II. 588

V. Thompson I. 244

V. Wilson II. 6, 374

V. Woodbridgo II. 414, 418

Thomson v, Davenport II. 179

Thorn i;. Kice I. 484, 496

Thorndike v. Stone II. 173, 174, 413

Thorne v. Smith II. 199

Thornton v. Appleton II. 555

T. Bank of Washington II. 421

t?. Cri.sp II. 649

p. Crowther II. 49, 518

V. Dick I. 49, 291

V. Illingworth I. 72

V. Rankin I. 90

r. Wynn I. 205, 595, 605, 618

Thorp V. Raymond

II. .637

Thorpe v. Booth

II. 644

V. Peck

I. 51.5

V. White

I. 197

Thrall v. Newell IT. 37, 38, 39, 600

Thrasher ?;. Ely II. 137

Thrower v. Cureton II. 640

Thrupp V. Fielder I. 74

Thurman v. Van Brunt II. 73, 74, 83

Thursby v. Gray I. 237

Thurston v. Blanchard I. 70 ; II. 151, 206

V. Lloyd L 128

V. Lowder II. 640

V. M'Kown I. 264, 377

V. Mauro I. 96

Thwaites v. Richardson II. 477

Tickner v. Roberts I. 601, 620, 635 ;

11.319,342

Ticonic Bank v. Johnson II. 421

V. Stackpole I. 635, 642, 644

Tidmarsh v. Grover II. 547

Tiernan v. Jackson I. 330

Tiley v. Courtier II. 91, 188

Tiller v. Shearer IL 125

Tillett V. Commonwealth II. 652

Tillier v. Whitehead I. 106

Tillinghast i;. Nourse II. 655, 657

Tillotson V. Grapes I. 210

V. Preston II. 397

V. Rose II. 638

Tillou V. Britton L 230 ; IL 617, 620

V. Clinton & Essex Mut. Ins.

Co. II. 577

Timminsv. Gibbins IL 96, 104, 106, 191,

192
Timms v. Delisle I, 483

Tindal v. Brown I. 269, 471, 503, 507, 509,
533, 629, 630 ; IL 239, 249, 490
r. Taylor IL 34

Tindall v. Childress IL 301

Tinker v. McCauley I. 44 ; II. 133

Tinkum v. Duncan II. 139

Tinnen v. Mebane II. 629, 630, 640

Tinsley v. Beall II. 604

Tinson v. Francis II. 230

Tippets V. Heane II. 654

Tisdale v. Mitchell IL 641

Titcomb v. Thomas II. 53, 453

Titford V. Knott IL 477

Tittle V. Thomas I. 34

cxu

INDEX TO CASES CITED.

Titus r. Hobart II. 327, 367

Tobey v. Barber II. 155, 162, 182, 217, 36.5
V. Lennig I. 476

Toby c. Maurian I. 364

Todd V. Stafford II. 470

V. Todd II. 647

Tolbert v. Harrison II. 233

Tombeckbe Bank v. Stratton 11. 250

Torabeckbee Bank v. Dumell I. 146,

148, 312

Tomkins v. Ashby I. 25

Tomlin v. Lawrence (3 Moore &P.) I. 201

Tomlins v. Lawrence (6 Bing.) II. 564

Tomlinson v. Gill IL 132

V. Spencer II. 471

Tompkins v. Brown II. 652

Toms V. Powell II. 458

Tooke V. Hardeman II. 629

V. Ilollingworth II. 164

Tooker v. Bennett I. 249

Toosey v. AVilliams II. 496

Tootell, Ex parte I. 39

Topham v. Braddick II. 644

V. Chapman II. 360

Toppan V. Jenness II. 616

Torrey v. Baxter II. 153

V. Fisk II. 567

V. Foss L558; IL 291, 296,

303, 307

i;. Grant IL 420

Toulmin v. Price II. 287

Touro r. Cassin 11.318

Touscy V. Kobinson II. 406

Tower v Appleton Bank II. 308

V. Durell L 595, 620

Townend v. Downing II. 466

Townley r. Crump II. 165, 166

Towns V. Mead II. 634

Townsend v. Bush II. 419, 469

V. Cowles IL 138

V. Deacon II. 635

r. Derby I. 193, 228

r, Jemison 11.381,383

r. Lorain Bank I. 470, 472,

476,477

r. Riddle I. 236, 237; IL515

Townsley r. Sprinf^er I. 510

r. Sumrall 1.221,298,337,

6.34, 635 ; II. 342

Towson V. Havre dc Grace Bank II. 92

Tracy v. Pearl

II 153

V. Wikoff

IL 223

Trapp V. Spearman

II. 547, 582

Trasher v. Everhart

320, 366, 368

Trask v. Martin

L 405, 406

V. Roberts

L 99

V. Vinson

L 204, 210

Treadway v. Drybread

IL 244

Treadwell v. Moore

II. 653

Treat v. Cooper

IL 147

V. Stanton

IL 425

Treble's Case

IL 547, 585

Trecothick v. Edwin

L 307, 428

Tredick v. Wendell

L367

Trenthan v. Deverill

IL 663

Trent Navigation Co. v

. Harley IL 247

Treon v. Brown

IL 469, 498

Treswaller v. Keyne

IL 235

Treuttel v. Barandon

L17; IL 22, 29,

43, 210,435

Tricksy v. Lame

1.208

Trigg V. Drew

IL 620

V. Taylor

II.

549, 573, 577

Triggs V. Ncwnham

418,420, 641

Trimbey v. Vignier I.

642

IL 318, 325,

326, 329, 336, 346,

354,

355, 368, 374

Trimble v. Thome I.

596,

601, 604, 619,

623, 624 ; II.

242,

243, 244, 248,

459, 497

Triplett v. Hunt

504, 513, 515

Tripp V. Swanzey Paper Co

I. 95, 118

Trotter v. Crockett

II. 160, 218

V. Curtis

IL 410, 433

Troutman v. May

II. 663

Trowel v. Castle

IL 576

Troy City Bank v. Lauman

II. 484

True V. Andrews

IL 657

V. Collins

L486

V. Fuller

IL 133

V. Thomas

IL 71, 87

Truoman v. Hurst

Lns

Truchdcll V. Callaway

11. 167

Truott V. Chai)!in

L 199

Trumball v Tilton

II. 655

Trundy v. Farrar

L 100

Trusrott v. Davis

11.427

Trust, Ex parte

II. 309

Trustees, &c. v. Kendr

II. 151

in Fryeburg v

(.Osgood

11. 656

INDEX TO CASES CITED.

CXUl

Trustees, &c. in Hansou v. Stetson II. .512
of Ministerial a'ld School Fund

in Levant v Parka II. 4.50

of Schools V. Wright II. 168

Tryonv. DeHay 11.120

V. Hart I. 248

V. Oxlcy I. 273 ; II. 74

Tubb V. Madding II. 569

Tuck V. Tuck II. 602

Tucker r. English I. 26

V. Maxwell I. 45

V. Morrill I. 189

V. Pruett II. 453

V. Randall II. 463

V. Wilamouicz II. 419, 467

Tuckerman v. Hartwell I. 311, 433, 434

V. Newhall I. 247 ; II. 237

Tuft's Case I. 32 ; II. 585

Tullock V. Dunn II. 659

Tumraer r. Oddie I. 291

Tunno v. Lague I. 505, 531

Tunstall v. Walker I. 490, 494

Tupper V. Powell 11.416

Turnbull v. Freret I. 156

V. Gadsden II. 640

V. Strohecker II. 617

V. Trout 11.7,23,131,521

Turner v. Billagram II. 572

V. Brown I. 192

V. Davies II. 254, 537

V. Greenwood I. 643

V. Hayden I. 309, 329, 426

V. Hickey II. 162

V. Leach (Chitty on Bills) I. 532

V. Leech (4 B. & Aid.) I. 504,

514, 532

V. Miller II. 424

V. Rogers I. 637, 640, 644

V. Ross II. 658

V. Shearer II. 636

V. Smith II. 640

V. Stones IL 96, 97, 103, 104,

183, 187, 191, 192, 194

Turney v. Dodwell II. 655

Turpin's Case II. 82

Turpin v. Povall II. 416

v. Thompson II. 54

Tuthill V. Davis II. 467, 470

Tutt V. Hobbs I. 98

Tuttlew. Bartholomew II. 53, 133, 135, 136

Vol. l.—H j*

Tuttlc V. Clark

11.414

V. Cooper

L249; II. 481

V. Fowler

I. 86

V. Mayo

11.94

Twine's Case

II. 45

Twopenny v. Young L 245, 249 ; II. 246

Tye V. Gwynne L 207, 21 2

Tylee v. Yates II. 107

Tyler v. Binney IL 53, 133, 135, 485

V. Stevens II. 1.32

V. Trabue II. 320

V. Young I. 210, 268

Tyson v. Britton II. 646

V. Rickard II. 407

Ubsdell V. Cunningham I. 39

Udal V. Walton II. 82

Ulen V. Kittredge IL 124, 131, 521

Ulster Co. Bank v. McFarlan I. 294, 296,
298, 299; H. 109
Underwood r. Simonds IL 511, 526,532,

535

Union Bank v. Brown I. 497

V. Can- II. 564

V. Ellicott II. 91

V. Fowlkes I. 639, 646

V. Grimshaw I. 504, 596,

598, 600, 622

V. Hall II. 247

V. Hyde I. 499, 576, 582,

642, 643, 647 ; 11. 329,

499, 516

V. Lea I. 499

V. Magruder I. 591

V. Osborne II. 301

V. Stoker L 497

r. Warren IL 298, 299,301,

313

V.Willis L363; IL 121,

124, 520

of La. V. Coster IL 109, 132,

140

of Tenn. v. Smiser II. 153

U. S. V. Bank of the Metropolis I. 44

V. Barker I. 152, 216, 337, 343,

346, 358, 487, 509, 510, 513, 531 ;

IL 30, 32, 220, 442, 452

CXIV

INDEX TO CASES CITED.

U. G. V Boice IT. 452

V. Bradbury II. 222, 227, 228

v. Britton II. 292

V. Buford II. 45

V. Foye II. 588

T. Hodge I. 245

r. Kirkpatrick II. 224, 226, 227,

228, 230

V. La Jeune Eugenie 11. 318, 321

T. Leffler II. 468

r. Linn II. 553, 577, 580

V. Prentice II. 620

V. Simpson I- 237

V. Spalding XL 574

p. Thompson I. 247 ; II. 503

i;. U. S. Bank II. 590

V. Wardwell II. 225

c. White L 33 ; II. 45

V. Williams II. 605, 663

C. S Bank v. Bank of Georgia II. 99,

186, 188, 195, 196, 203,

285, 594, 596, 599, 600

V. Binney I. 132, 133

». Chapin IL 371

V. Davis I. 514

V. Donnally IL 354, 356, 366

r. Fleckner I. 173

V. Goddard I. 515

r. Owens II. 434

r. Sill IL 100, 258, 312, 314

r. Smith 1.309,311

V. Southard I. 596, 601, 606,

612, 619

d. S. Trust Co. V. Harris IL 614

Upham V. Lefavour II. 228

V. Prince IL 53, 135

Upstone V. Marchant II. 550

Upton V. Ferrers II. 393

V. Starr II. 452

Urquhart V. Taylor I. 156

Usborn v. Lark in II. 522

Usher v. Dauncey I. 145 ; II. 1 1, 13

e. Gaither II. 207

Uthcr V. Rich I. 258 ; IL 28, 187, 272,

273, 274

Utica Bank r. Ganson II. 445

Ins. Co. V. Bloodgood II. 421

r. Kip 1.217

V. Tillman II. 412

Vail V. Foster H. 153, 160, 168, 169

Vain V. Whittington II. 286

Vairin v. Hobson II. 275, 277

Valentine v. Farrington I. 237

V. Packer I. 100

Valette v. Mason I. 223

Valk V. Bank of South Carolina I. 499

V. Gaillard I. 500

V. Simmons I. 537, 544, 548, 549,

647 ; IL 71

Vallett V. Parker I. 50, 51, 279 ; II. 480

Van Alstyne v. Van Slyck I. 251

Vanauken v. Hornbeck II. 287, 293, 298,

309

Van Benschooten v, Lawson II. 425

Van Bibber v. Louisiana Bank II. 592

Van Brunt v. Van Brunt II. 574

Van Buren v. Webster II. 648

Vance v. Collins 11. 465, 488

V. Depass I. 492

V. Funk IL 480

V. Ward I. 294

V. Wells I. 79

Van Cleef v. Thcrasson II. 342, 365

Vandcr Donckt v. Thelluson I. 427

Van Derveer v. Wright I. 197 ; II. 136,

139
Vandewall v. Tyrrell I. 317, 320

Van Doren v. Todd II. 167

Van Duzcr v. Howe I. 280 ; II. 1 1

Van Eps v. Dillave IL 154, 161

Van Hoescn v. Van Alstyne I. 264, 268,
269, 382, 519
Van Hook v. Whitlock II. 326

Van Home v. Dorrance II. 580

Van Keuren v. Parmclce II. 657

Van Ness v. Forrest IT. 450, 451

Van Raugh v. Van Ansdaln IT. 325, 343,

360, 361

Van Reimsdyk v. Kane I. 298 ; II. 318,

319, 320, 369, 518

Van Rensselaer v. Roberts II. 2'.'5

Van Schaack v. Stafford II. 427, 469,

470
Van Schaick v. Edwards II. 318, 325,

337,341
Vaniixem v. Hazelhursts II. 361

Van Vactcr r. Flack I. 45

INDEX TO CASES CITED.

CXV

Van Valen v Lapbam

II. 618

Van Vechten v. Pruyn

I. 479, 488

Van Vleet v. Adair

11.96

"Van Vronkcr v. Eastman

II. 425

Van Wagner v. Terrett

I. 44

"Van Wart v. Smith I

531

', 543; II. 183

V. Woolley

I. 347, 503 ; II.

137, 139, 183

Vardeman v. Lawson

II. 630

Varick v. Crane

II. 414

Varner v. Nobleborough

I. 44, 63 ; II.
152, 153

Varney v. Brewster

II. 618

V. Grows

II. 634

Varnum v. Bellamy

I. 221

V. Miiford

I. 240, 246

Vathir v. Zane

I. 189

Vatterlien v. Howell

I. 222

Vaughan v. Fuller

. 615; II. 479

Vaught ». Wellborn

II. 616

Veazie v. Willis

119, 143, 589

Bank v. Paulk

II. 427, 461

V. Winn

411, 413, 414;

II. 68, 72, 462

Ventris v. Shaw

II. 649

Vere v. Ashby

I. 143

V. Lewis I. 32 ;

II.

50, 487, 585,
592

Vermont State Bank v.

Porter II. 364

Vernon v. Boverie

11.85,216

V. Han key

11.82

V. Manhattan Co.

I. 135

Vice V. Anson

II. 151

Vidal V. Thompson I.

399

; II. 318, 324,
331, 344

Viele V. Hoag

I. 241

Vilas V. Jones

I. 240

Viles v. Moulton II.

294,

298, 304, 309

Vincent's Case

II. 210

Vincent v. Gandolfo

II. 618

V. Horlock

II. 15, 439

Vinson v. Piatt

II. 376

Violett V. Patton I. 109 ;

II. 10, 27, 348

Virgin, The

II. 173

Visher i'. Webster

II. 550

Voight V. Rambo

II. 427

Volunteer, Schooner

II.

165, 169, 170

Von Hemert v. Porter

11.425, 426

Vore V. Hurst

II.

120, 123, 124

Vose V. Handy

11.53

Vose V. Philbrook II. 609

Vrecland v. Blunt I. 336

V. Hyde I. 268, 269, 377, 378,

380, 563

Wackerbath, Ex parte I. 313, 318

Wade's Case I. 230; II. 190

Wade V. Killough I. 204

V. N. O. Canal, &c. Co. II. 294, 298,

304, 303

V. Scott I. 209

V. Simeon I. 198

V. Staunton I. 245 ; II. 533

V. Wade II. 294, 305

V. Wilson II. 418

Wadsworth ». Sharpsteen I. 151

v. Smith I. 209

V. Thomas II. 648

Wagman v. Hoag I. 241

Wagner v. Kenner I. 384, 409, 410

Wagnon v. Clay I. 140

Wagstaff, Ex parte II. 613

Wakeman v. Vanderbilt II. 616

Wain V. Bailey I. 428 ; II. 84, 216,

289, 296

V. Warlters II. 127, 128, 131

Wainman v. Kynman 11. 651, 653

Wainwright v. Webster II. 103, 105, 193

Waite V. Foster I. 148

Waithman v. Elsee T. 25

Wake V. Tinkler II. 605

Wakefield r. Newbon II. 493

T. Stedman II. 502

Wakemen v. Sherman II. 649, 652, 661

Walbridge ?7. Arnold I. 196

Waldo, The II. 170

Waldo Bank v. Lumbert I. 125

Waldridge v. Kennison II. 479

Walker r. Atwood 1.312

T. Bank of Augusta I. 498

V. Bank of Montgomery Co.

I. 326, 503, 505, 506 ; II. 250
r. Bank of Washington 11.420
V. Barnes II. 214, 399, 624

V. Brown II. 625

V. Butler II. ^53, 655

cxvi

INDEX TO CASES CITED.

Walker 17. Chovin
V. Clay
V. Clements
V, Constable
V. Davis
V. Eyth
V. Forbes
V. Geisse
V. Goodrich
V. Kimball

II. 609

II. 513

II. 642

II. 392

I. 255

n. 608

II. 139, 352

I. 221 ; II. 69

II. 641

II. 424

V. Laverty I. 596, 601, 603, 621

V. Lide I. 285

V. Macdonald II. 485

V. Patterson I. 161

V. Perkins I. 214

v. Russell II. 529

V, Sherman II. 127

v. State Bank I. 352

V. Walker I. 569, 596, 622 ;

II. 457

». Warfield 11.475

T. Wills II. 393

V. Wootten II. 649

Wallr. Bry 1.576,578,581,586

Wallace v. Agry I. 264, 297, 298, 337,

340, 341, 342, 345, 3.50,

351 ; II. 154, 180, 340

V. Branch Bank I. 107, 189

V. Dyson I. 45

V. Hardacro I. 215 ; II. 5, 593

V. Kelsall II. 82, 608

V. M'Connell I. 229, 309, 310,

429

T. Small II. 479

Waller v. Lacy II. 653

Walls V. M'Gee II. 663

Walmesiey v. Cooper I. 250 ; II. 238

Walinsley v. Child II. 287, 296, 297, 306

Waipole V. Pulteney I. 325

Walrad v. Petrie I. 34

Walsh V. Bailio II. 246

V. Farrand II. 361

V. Nourse II. 359, 361

Walter v. Haynes I. 486

V. Kirk I. 410 ; II. 446, 461

r. Trustees of Schools IT. 482

Waltermirc v. Westover II. 631

Walters v. Brown I. 478, 482, 483

V. Short II. 577

V. Swallow II. 246

Walton V. Adams U. 293

V. Bemiss II. 153, 160, 162

V. Dodson II. 132

V. Hastings II. 550, 568, 574

v. Mascall II. 137

V. Robinson II. 6.t8

V. Shelley 11. 468, 469, 470

V. Watson I. 529

Walwyn v. St. Quintin I. 540, 541, 542,

543, 630; II. 27, 218,

240, 455, 485, 533

Wamsley v. Lindenberger I. 77

Wankford v. Wankford I. 162

Ward V. Allen I. 282, 285, 298 ; 11. 489

V. Bank of Kentucky I. 115 ; II. 7

V. Cole II. 636

V. Evans II. 85, 91, 105, 154, 155,

156, 159, 183, 184, 209, 216, 602

V. Howe II. 153

V. Johnson I. 249

V. Turner II. 54

V. Winship II. 528

Warden v. Howell I. 224 ; 11. 28

V. Hughes II. 29

Wjirder v. Arell I. 57 ; II. 318, 322, 364,

365

r. Carson I. 507

V. Tucker I. 537, 554, 556, 571,

607, 647

Wardlaw v. Gray II. 297

Ware v. Adams II. 1 26

V. Key II. 444

Waring v. Cunliffe II. 423

V. Smyth II. 573

Warner v. Beardsley I. 237 ; II. 248

». Price 11.515

T. Spencer II. 545

V. Van Alstyne II. 167

V. Whittaker II. 46, 51

Warnick v. Crane I. 641

Warren v. Allnutt I. 311

V. Coombs I. 57, 662 ; II. 324

V. Crabtree II. 420

V. Gilman I. 255, 472, 483, 516 ;

II. 456

t'. L.ayton II. 550, 577

V. Lynch II 320,341, 366

V. Mains II. 91, 92

V. Merry II. 467

T. Walker II. 648

INDEX TO CASES CITED.

cxvn

Warren r. Wheeler II. 24

Academy v. Starrett II. 512, 524

Ba ik V. Suffolk Bank I. 480

"Warrender v. Warrender II. 318

Warring v Williams II. 553

Warrington, Ex parte II. 401

V. Early II. 545, 549

V. Furbor 1.446; II. 118,

137, 139

Warwick v. Bruce I. 66

V. Nairn I. 208

V. Rogers II. 61, 564

Warwicke ». Noakes 11.315

Washband v. Washband II. 393

Washburn v. Goodman I. 144

V. Picot I. 209

V. Ramsdell I. 255 ; II. 9, 472

Washington v. Planters' Bank I. 310

Bank v. Prescott II. 225

V. Shurtleff II. 140

143,399

County Mut. Ins. Co. v.

Miller 1. 41

Wasson v. Gould II. 425

Waterbury v. Sinclair II. 120

Waterman v. Vose II. 550, 562

Waters v. Bank of Georgia II. 93, 298, 308

V. Carleton I. 45

V. Paynter II. 474

V. Simpson I. 239 ; II. 533

V. Tompkins II. 653

Watervliet Bank v. White I. 96, 170 ;

II. 442, 595

Wathcn v. Blackwell I. 470

Watkins v. Crouch I. 310, 311, 432, 433,

563, 565, 567

V- Halstead I. 79

C.Hill 11.151,205

V. Hopkins II. 620

r. Kirkpatrick II. 519

V. Maule I. 158, 160; II. 5, 16

V. Morgan II. 394

V. Stevens II. 652, 654, 661

V. Vince I. 92

V. Zane II. 607

Watkinson v. Bernadiston II. 170

Watriss v. Pierce I. 236, 238, 239 ; II. 377

Watson's Case II. 491

Watson V. Bailey II. 471

V. Bourne II. 319, 359, 360, 361

Watson V. Brewster II. 318, 327, 368, 381

V. Cabot Bank I. 224

V. Duke of Wellington I. 33C.

V. Flanagan I. 261 ; II. 9

V. Hurt II. 120, 521

V. Loring 1.351 ; 11.214, 463

V. McLaren II. 119, 130, 132

V. Orr II. 318

V. Owens II. 154, 200

V. Poulson II. 69, 72

V. Randall II. 132

V. Tarpley I. 350

V. Templeton I. 499

r. Wells 11.167

Watts' Case II. 585

Watt V. Hock II. 653

V. Mitchell I. 569

V. Riddle I. 650, 660

Walters v. Smith II. 217

V. Devor II. 657, 659, 661

V. Rces II. 612

Waugh V. Bussell 11. 568, 574

Way V. Bassett II. 644

V. Cutting II. 639

V. Richardson II. 437, 438

V. Sperry II. 383, 635

Waydell v. Luer II. 41, 159, 160, 200,202

Waynam v. Bend II. 685

Wayne v. Kirby 11. 245, 533

Weakly v. Bell I. 497 ; II. 150, 184, 204

Wearse v. Peirce I. 200

Weathered v. Smith I. 277 ; II. 267,275,

279

Weatherhead v. Boyers II. 408

Webb's Case II. 585

Webb V. Burke I. 94

V. Fairmaner I. 405, 416

V. Morgan II. 443

z). Spicer 11.144,237,533,5.37

Webber v. Cochrane II. 648

V. Williams College I. 117, 167

Webster v. Cobb II. 120, 124, 132

V. Kirk II. 642, 643

t'. Lee L 261 ; II. 9, 215

V. Vickers IL 469

V. Webster II. 645

Weed V. Bond I. 276

V. Carpenter II. 16 594

V. Clark L 44 ; II 132

V. Miller I 664

cxvm

INDEX TO CASES CITED.

Weed V. Richardson

V. Snow

V. Van HoQten
Weeks v. Pryor
Wegersloffe v. Keene
Weidler v. Kauffman
Weidman v. Kohr
Weir V. Cox

I. 126

n. 154, 218

I. 310

I. 264, 268

I. 312

I. 45

II. 472

1.327

Weisser v. Denison IL 212, 589, 594

Welby V. Drake I. 245 ; II. 217

Welch V. Lindo L 358 ; II. 220, 442

T. Watts II. 493

Weld V. Gorham I. 369

Weldon v. Buck I. 351 ; II. 463

Wellborn v. Rogers II. 630, 634

Wellman v. Southard II. 651, 657, 659

Wells V. Brigham I. 44

V. Girling 11.414,515

«. Hopkins I. 206

D.Jackson 11.120,519

V. Masterman I. 1 25

». Porter 11.419

». Ragland 11.642

r. Tucker I. 179; II. 54

r. Washington II. 254

V. Whitehead I. 57, 634, 642 ; II.

312, 324, 473

». Wopdley 1.410

Welsh V. Barrett II. 298, 305, 495

V. Carter I. 205

Welton V. Adams I. 26 ; II. 34, 298, 304,

308

V. Scott II. 520

Wemple v. Dangerfield I. 511, 512

Wendell v. George II. 470

Wcndiiiaifs Case 11. 45

Weninan v. Mohawk Ins. Co. II. 643, 644

Wentworth v. Goodwin I. 210

Were v. Taylor II. 592

Wcrnwiig V. Mothershead II. 392

Wcsling V. Noonan II. f.22

Wesson V. Carroll II 502

West V.Brown 1.422,423,511,512

». Foreman I. 45

V. Kelly II. 512

V. Patton II. 297, 310

V. Penny I. 73

r. Sloan II. 640

r. Valley Bank I. 660

Boylston Manuf. Co.t>. Soiirlc II. 450

West Branch Bank v. Fulmer I. 523

V. Moorehead II. 223

Cambridge v. Lexington 11.318,319

Westerdell r. Dale 11.170

Western u. Pollard 11.518

V. Wilmott II. 480

Bank v. Kyle II. 505

West Feliciana R. R. v. Stockett 11. 633,

645
Westminster Bank v. Wheaton I. 271 ;

II. 68

Weston V. Barker 11. 50, 62

V. Chamberlain II. 515

V. Hight II. 56, 309

Wethey v. Andrews I. 264, 268, 379

Wetumpka, &c. R. R. Co. v. Bingham

I. 63, 94
Wetzel V. Sponsler I. 238

Whaley v. Houston I. 537, 542, 639 .;

n. 72

Wharton v. Hopkins 11. 604

V. Wright I. 496

Whatley v. Tricker I. 324

Wheat V. Kendall I. 235

Wheatley v. Williams I. 21

Wheaton v. Wilmarth I. 473

Wheeler v. Field 1. 443, 451 , 452, 453, 459

V. Guild I. 51. 261; n. 275, 604

V. Lewis IL 141, 142

V. Pope IL 376

V. Raymond II. 388, 604

r. Schroeder IL 150, 153, 175,

176, 186

V. Stono L 290

V. Wasliburn I. 241

V. Webster L 289 ; II. 569,

6.35, 636

r. Wheeler L 158, 245, .334 ;

IL 6,51, 52, 2 1 7

Whcelock v. Doolittle II 653

V. Freeman II. 146, 502, 540,

.542, 546, 572, 582, 583

Wliidden V. Scelyo II. 334

Whipple V. Stevens II. 406, 658

Whiston V. Stodder II. 318, 320, 323

Whitakcr v. Bank of England I. 419 ;

II. 213, 252

V. Brown L 124, 125, 126, 128 ;

II. 472

V. Edmunds (I A. & E., II 494

INDEX TO CASES CITED.

CXIX

VVnitaker ?j. Morris 1.591,596

V. Morrison I. 596, 609 ; II. 496
V. Whitaiicr I. 86

Whitbeck v. Van Ness II. 41, 98, 151,
156, 183, 192, 193

Whitcomb v. Smart II. 449

V. Whiting II. 656, 658

V. Williams II. 151

White, Ex parte II. 557

V. Ambler II. 73

V. Brown II. 291, 306, 310

V. Canfield II. 367

V. Casanave II. 167

V. Case II. 141

T. Doui^herty II. 168

V. Dow II. 649

». The Governor 11.602,619

r. Green II. 602

». Guthrie 11.91,193

r. Hale II. 656, 657

v. Hass II. 548, 572, 577

V. Heylman II. 45, 46

V. Hopkins II. 250

V. Howland I. 238; II. 118, 132
r. Joy I 155

T. Kibling I. 261 ; II. 467, 470
V. Latimer XL 634, 637

V. Ledwick I. 193

r. McDowell 11.162

V. Mallord II. 302

r. Nortii I. 24

r. Palmer 11.211

V. Richmond I. 47

V. Springfield Bank 1.221 ; 11.493
V. Stoddard I. 360, 444, 559

V. Trumbull II. 224, 226

V. White II. 126, 629, 640

T. Wiggins II. 606

V. Williams II 169

v. Word II. 612

V. Wright II. 409, 417

Whiteford v. Burckmyer 1. 484; II. 437

Whitehead v. Jones II. 495

V. Walker II. 604, 644

Whitelocke v. Musgrove II. 479

Whiteman v. Childress I. 46, 47 ; II.

4.5, 120

Whitesides v. Wallace II. 290, 291, 293

Whitfield V. CoUingwood II. 550, 577

V. Fauesset II. 287

Whitfield r. Le Despencer II. 315

T. Savage I. 528, 555

Whiting V. Daniel II. 552

Whitlock V. McKechnio II. 440

V. Underwood I. 381 ; II. 67
Whitman v. Farmers' Bank I. 499, .504,

513

V. Leonard I. 148

Whitmer v. Fryo XL 549, 573, 580

Whitmore ». Corey 11.476

Whitney ». Abbot L 586, 595 ; IL 182,515

V. Bigelow II. 652, 661

V. Bunnell L 321

V. Dutch L 71, 73, 74

V. Goddard II. 323

V. AVhiting IL 364

Whiton V. Mears II. 138

Whittaker v. Edmunds (1 Moody & R.)

1186

Whittemore v. Adams II. 367

Whittier v. Eager I. 199

V. Grafi'am I. 449

Whittington v. Farmers' Bank II. 495, 499

Whittle V. Skinner I. 240

Whittlesey v. Dean L 509

Whitton V. Swope II. 392, 393

Whitwell V. Bennett II. 69

r. Brigham 1.411,414,420;

XL 462

V. Johnson I. 369

V. Crehore II. 27, 29

V. Dimsdale II. 583

?;. Johnson I. 509, 510

Wickes V. Caulk IL 554, 578, 580

Wick's Case IL 408

V. Gogerly IL 420

Widgery v. Munroe X. 369, 449, 451, 452 ;

IL 516

Wiffen V. Roberts L 373 ; IL 44

Wiggin V. Bush IL 275, 279

V. Damrell 11 50, 51, 603

V Tudor I. 247

Wiggins V. Vaught I. 45

Wiggle r. Thomason ' 1.410

Wight ». Shuck IL414

Wilamouicz v. Adams I. 47

Wilbour r. Turner XL 485

Wilbur V. Sclden IL 496

V. Wilbur IL 578

Wilburn v. Grcer T. 47

cxx

INDEX TO CASES CITED.

Wilby V. Warren
Wilcox V. Beal

V. Howland
V. Hunt

II. 85

II. 592

11.423, 424,425

II. 318, 327

V. M'Nutt I. 483, 487, 493

T. Mitchell I. 499, 504

r. Roath (12 Conn.) 1.74

V. Routh (9 Smedes & M.) I. 500

Wild V. Bank of Passamaquoddy I. 173,

351 ; 11. 239, 240, 463

V. Fisher II. 152

V. Rennards I. 305, 428, 429

Wilde T. Armsby II. 577

V. Sheridan II. 342

Wilder ». Aid rich 1.86,88

«. Seelye I. 367 ; II. 286, 288

Wilders v. Stevens II. 459

Wildes V. Savage I. 62, 294, 295, 297 ;

II. 137, 139, 140

Wiley v. Holmes II. 374

Wiliams v. Griffith II. 649

Wilkcrson v. The State II. 4 1 1

Wilkes V. Harper II. 246

V. Jacks I. 554, 596, 603

Wilkie V. Roosevelt II. 418

Wilkins v. Commercial Bank I. 499

r. Jadis 1.418,420,616,618,641

T. Reed II. 152

Wilkinson jj.Byers 11.217

». Johnson 1.319,323,328;

II. 29, 101, 189, 285, 574,

590, 598, 600, 601

V. Kirby II. 603

V. Lutwidge I. 320 ; II. 38,

99, 196, 482, 590

V. State II. 588

v. Sterne II. 224, 228

V. Wright 11. 357

WiTks V. Robinson II. 643

Willard v. Clarke II. 556

V. Harvey 11. 633

V. Rccdcr II. 417

Willcox V. Smith II. 646

Wiliets V. I'lioeiiix Bank I. 33, 273 ;

II. 50, 65, 74,75, 79, 592

William & Emmelinc, The II. 173

William Money, The II. 171, 173

Williams, Ex parte II. 396, 397

V. Alexander II. 663

V. Bank of U. S. I. 487, 490

Williams v. Banks II. 433, 471

r, Beazley II. 507

V. Brashear I. 537, 539, 541
V Brobst I. 583, 587, 611

V. Council II. 634

T. Cutting I. 12

T. Drexel II, 483. 589, 590, 591
V. Everett I. 333

V. Field II. 25

T. Flight II. 605

v. Floyd II. 477

V. Germaine I. 314, 316, 318
V. Gilchrist II. 617

r. Griffith 11.224,231,653

V. Hicks I. 207

r. Houghtaling II. 223, 425

V. James II. 233, 454, 487

V. Jarrett II. 550

V. Jones II. 326, 382, 385, 631
V. Little I. 221, 225

V. Matthews I. 515

». Moor (11 M. & W.) 1.67,
68, 72
V. Moore (5 N. H.) II. 164

r. Nicholson I. 275

V. Preston II. 381

V. Putnam I. 642, 643

v. Rawlinson II. 231

V.Reynolds 11.407,414,426,
427, 433
V. Roberts II. 167, 168

V. Robinson I. 596, 609

T. Seagrave II. 589

T. Smith I. 191,224,510;

II. 314
V. Storm II. 427

V. Storrs II. 374

V. Thomas I. 138; II. 180

V. Wade II. 343, 347, 348

V. Walbridge I. 125, 128, 132;
II. 4 (•)'.»
V. Waring I. 307, 4'J8

V. Williams II. 406

V. Winans I. 28.'), 293

Williamson v. Bennett I. 43

V. Clements II. 287

». Johnson I. 135; II 474
r. Thompson II. 210

r. Watts I. 68

Willie r. Green I. •J43 ; II. 94

INDEX TO CASES CITED.

CXXl

Willings V. Conscqua I. 247; II. 318

Willins V. Smith II. 661

Willis V. Bank of England II. 187

V. Barrett I. 32 ; II. 474

V. Cresey II. 298, 310

V. Green I. 502 ; II. 4

V. Hobson I. 257, 644

V. Newham II. 653

Willison V. Patteson I. 152 ; II. 8

Willinarth v. Crawford I. 165

Wiilshcir v. Cox II. 468

vVillson V. Force II. 163

Wilniot V. Williams I. 427 ; II. 474

Wilson's Case I. 113; II. 583

Wilson, Ex parte I. 136, 233, 528

V. Alexander II. 101, 189

V. Barthrop I. 121 ; 11.460

V. Black II. 520

V. Calvert II. 647

V. Clark II. 373, 438

V. Clements I. 294

T. Codman 11. 608

». Edmonds II. 612

r. Foot I. 235

V. Goodin 11. 220, 488

V. Green I. 235

V. Hardesty 11. 416

V. Henderson U. 565, 567, 577

V. Hickson II. 96

V. Huston I. 596

V. Ivy II. 639

V. Jamieson II. 565

r. Jordan I. 210

T. Keedy II. 607.

V. Kilburn II. 409

V. Lewis I. 1 29

V. Lazier I. 188; II. 26

r. Mullen IL 120

v. Reaves II. 603

V. Swabey I. 503, 504

V. Tumman I. 101

V. Wheeler I. 235, 241

V. Williman 1.411 ; II. 461

V. Williams I. 126

V. Wright IL 233

Wilthaus V. Ludecus I. 85

Winans v. Davis I. 494

Winchell v. Bowman 11. 654, 656, 658

V. Hicks n. 648, 655, 657

Windham v. Wither II. 457, 458

Windham Bank ». Norton I. 373, 443,

460, 461, 463

Windlc V. Andrews I. 643

Wingatc v. Mechanics' Bank I. 480

Winn V. Dunn IL 420

V. Young n. 392

Winship v. Bank of U. S. I. 125. 133

Winston v. McCormick II. 631, 633

r. Wc'stfeldt L 260

Winter v. Anson 11. 167

V. Drury L 290, 335, 336 ; IL 60

Winterbottom's Case I. 159 ; II. 6

Wintcrcast v. Smith II. 447

Wintcrmute v. Post I. 303, 325

Winthrop v. Carleton IL 319, 376

V. Pepoon I. 350 ; II. 336,

376, 463

Wintle V. Crowther I. 129

Winton v. Saidler II. 469

Wires v. Farr II. 633

Wise V. Charlton IL 147, 542

7). Prowse II. 459

Wiseman v. Lyman IL 200

Wishart v. Downey 11. 615

Wissen v. Roberts I. 191

Withall V. Masterman II. 242, 249

Withington v. Herring I. 120

Withrow V. Wiley II. 531

Witte V. Derby Fishing Co. I. 169

Witter V. Latham IL 305

Wittersheim v. Carlisle IL 642

Wolcott V. Van Santvoord I. 229, 309

Wolf ». Summers II. 165

Wolfe V. Brown IL 142

V. Jewett I. 94, 339, 350, 450

V. Whiteman IL 643, 644

Wolfcrsberger v. Bucher I. 611

Wolff r. Oxholm IL 358, 365

Wollenwcber v. Kctterlinus I. 537, 538.

544, 546
Womble v. Battle II. 167

Wood V. Bodwell II. 151, 218

V. Braddick II. 481, 657, 658

V. Brown I. 614

V. Corl L 396, 493 ; II. 372

T. Drury IL 480

V. Farm. & Mech. Bank I. 656

V. Gibbs I. 537

V. Goodridge I. 80, 91, 92

j;. Grimwood IL 410, 418

cxxn

INDEX TO CASES CITED.

Wood T. Jefferson Co. Bank 11. 239, 243,

244, 247

V. Malin II. 327

V. Mytton I. 18, 19, 20

D.Mullen 1.311,409

V. Perry II 46

». Pagh 1.317,320

r. Tyson II. 442

V. Watkinson II. 326, 327

V. Wood I. 502 ; II. 5

V. Wylds II. 653, 662

Woodard v. Fitzpatrick II. 406

Woodbridge v. Brigliam I. 311, 374, 384,

432, 435, 509 ; II. 286

r. Spooner I. 179; II. 504

Woodcocks. Bonnet II. 154

V. Houldsworth I. 478, 485 ;

II. 491, 492

Wooddy V. State Bank II. 657

Woodfolk V. Leslie I. 23, 24

Woodford v. Dorwin I. 50

V. Whiteley II. 295, 296

WoodhuU V. Holmes II. 28

V. Wagner II. 326, 370

Woodin V. Foster I. 436, 474, 477

Woodland v. Fear II. 78

Woodman r. Eastman I. 571, 575, 595,

601 ; II. 239, 244

V. Thurston I. 464, 576

Woodroffe v. Hayne II. 225

Woodruff V. Merchants' Bank I. 399,

407 ; II. 57, 68, 69, 70

V. Moore II. 639

V. State II. 609

V. Trapnall II 621

Woods V. Bailey II. 168

B. Scliroeder II. 59, 84

Woodstock Bank r. Downer II. 145

Wf)odthori)e v. Lawcs 1. 468, 469, 473,

505

Woodward, Ex parte II. 656

(•.Clarke II. 6.')3

V. Drcnnan I. 375

V. IIarl)in II. 25, 484

». Winship I. 132. 133

Woodworth v. Bank of America I. 276,

432 ; II. 562, 565

Wookcy V. Pole II. 33, 43, 111,113, 268,

269
Wooldridgc v. Planters' Hank II. 645

Wooley V. Clements
Wool ley V. Clark

V. Sergeant
Woolsey v. Crawford
Woolway v. Howe

I. 402

I. 161

I. 24

I. 650

II. 471

Worcester Co. Bank v. Dorchester, &c.

Bank I. 115, 189, 232, 259 ; II.

278, 280, 281, 282

Worcester Bank v. Wells II. 340, 342

Co. Inst, for Savings v. Davis

II. 119, 138

Worden v. Dodge I. 45

Work V. Kase II. 470. 494

Worley v. Harrison I. 44

Worrall v. Jones II. 465

Worsham v. Goar 11. 243, 245

Worthington v. Curd II. 437

V. Grimsditch II. 653,

654

Wragg c. Comptroller-General II. 167

Wray v. Furniss 11. 618

Wren v. Pearce II. 128

Wright V. Allen II. 249

V. Boyd I. 170; II. 442

V. Butler II. 487

r. Conover II. 629

I'. Douglass II. 95

V. First Crockery Ware Co.

II. 150, 157
V. Hencock II. 305, 307

V. Jacobs II. 294, 305

c. Laing 11.231,417,421

V. Latham II. 24, 522

r. McAlexander II. 400

V. McFall I. 5:)

V. Maidstone IL 295, 296

V. Morse II. 122

r. Uvci\ IL 91, 92, 188, 189

V Rogers II. 60S
r. Shawcross 1.510,51.')
T. Simp.son L 238 ; II. 137, LM7

V Steele L 72, 74
V. Stockton I. 237
V. Wheeler IL 379, 406, 4 20

V Wright I. 179; IL 45, .55, 59
Wrightson v. I'lillan I. 140
Wyat v. Campbell L 279 ; 11.419
Wyatt ». Buhner L 189

V. Marquis of Hertford II. 86,

155, 179

INDEX TO CASES CITED.

CXXlll

Wvch V. East India Co. II. G33

Wyer v. Dorchester & Milton Bank

II. 275, 280, 281, 282

Wyke T. Rogers
Wyldman, Ex parte
Wylie V. Lewis
Wyman v. Adams
V. Gray

I. 269
1.97

I. 241
II. 458
II. 520
II. 490
II. 128

V. Hallowell & Augusta Bank

II. 594

Wynn v. Alden I. 470, 473, 474, 477

Wynne v. Alston II. 1 67

». Callander I. 217 ; 11.319, 418

r. Jackson 11. 318, 319, 321, 330,

331

V. Raikes I. 282, 289, 293

Yale V. Dederer I. 79

V. Eames I. 147

Yallop V. Ebers I. 229, 326 ; II. 249, 250

Yarborough ». Bank of England I. 18;

II. 584

Yarnell v. Anderson
Yates's Case
Yates, Ex parte
V. Bell

I. 135 ; II. 153

II. 58

II. 125

I. 334

V. Donaldson I. 229, 235, 247, 326 ;

II. 160,201

V. Freckleton II. 209, 210

V. Sherrington I. 86

Yeates v. Groves I. 336

Yeatman v. Cullen II. 336, 347

Yeaton v. Bank of Alexandria II. 27

Yongue v. Huff I. 537, 539, 540, 542,
York V. Blott II. 465,

Yorks V. Peck I.

Young V. Adams I. 46 ; II. 37, 38,
101, 103, 107, 186, 188, 189, 194,

V. Berkley
V, Bryan
V. Cole
V. Davis
V. Dobyns
V. Fuller
V. Glover
V. Grote
V. Harris
V. Mackall
V. Miller
V. Patterson
V. Scott
V. Triplett
V. Ward
V. Weston
V. Wood
Youngs V. Bell

II.

I. 643; II. 25,

II. 39,

II.

II. 80, 285,

11. 320,

II.

I.
II. 446,
II. 637,

II.

r. Lee L 191, 221, 222,471,

.544

488
247
98,
600
419
499
187
6J1
647
527
18
597
377
6.39
428
484
416
210
447
643
168
485
473

Zabriskie v. Cleveland
Zacli arias v. Zacharias
Zane v. Zane
Zebley v. Voisin
Zeigler v. Gray
Zephyr, Schooner
Zerrauo v. Wilson
Zwinger v. Samuda

II. 34

II. 629, 649, 654

I. 199

II. 456

II. 47(1

IL 174

n. 151

n. 34, lit

THE LAW

NOTES AND BILLS.

CHAPTER I.

OF THE ORIGIN AND FUNCTION OF NOTES AND BILLS.

The origin of negotiable bills of exchange is not certainly
known. It lias been much disputed in what ages and among
what nations they arose. But the opinion, or rather the con-
jecture, of some writers, that they, or instruments very like
them, were known among the Romans and Grecians, has been
shown to be without foundation. It is, however, certain, that
such a transaction as a request by A in Rome that B in Alex-
andria should pay to C, on A's account, the money which B
owes A, must have been not uncommon ; for if there was com-
merce, there was foreign indebtedness, and it must sometimes
have happened that in this way a foreign debt could be paid
with equal convenience to debtor and creditor. Indeed, both
Cicero (a) and Isocratcs {b) refer to such cases. Moreover, many
of the principles of the civil law in relation to novation, delega-
tion, and subrogation are quite analogous to those which now
constitute the law of negotiable paper ; and for this reason it
may seem more strange that nations possessing so much com-
merce and civilization as Greece and Rome, did not go so far

(a) Epist. ad Att., xii. 24, xv. 25.
(6) TpoTreftriKOf. Isoc, p. 170 (17).
Vol. L— a

2 NOTES AND BILLS. [CH. I

as to iu\ent and use negotiable paper. But they did not. Bills
of exchange, which at first were not, so far as our evidence
extends, negotiable, were in use in Venice in 1272, for a law
of that date refers io them. There are traces of them a little
earlier; and the different theories which ascribe their origin —
always on some, but never on certain evidence — to the Jews
when oppressively expelled from their homes, to tlie Lombards
tvhen driven from one country to another for usury, or to the
Guelphic Florentines when exiled from Italy by the Ghibcllines,
all concur in proving that they were in use among the com-
mercial nations of Europe, and especially along the shores of
the Mediterranean, about five centuries ago, and tliat they were
then of recent introduction. (c)

(c) Mr. Reddie, in his Historical View of the Law of Maritime Commerce, examines
this question with his accustomed thoroughness and ability, and concludes that bills
of exchange were first used by the Campsores or money-lenders at tiie fairs of the
twelfth, thirteenth, and fourteenth centuries. He remarks as follows: "Along with
the dealers in other merchandise, the money-dealer repaired with his commodity to the
stated fairs established over Europe; and, as his commodity was in constant and uni-
versal demand, he became a person of consequence at the fair. As his money-table
was necessary for the accommodation of all the other dealers, he had a peculiar claim
to the protection of the government under whose authority the fair was held. Lilce the
other merchants who disposed of their goods, he was equally if not more entitled to ob-
tain a document of the debt contracted to liim, under the seal of the fair, and clothed
with all the privileges enjoyed by tlie creditor under its ])eculiar jurisdiction. For the
money so advanced by him, it generally suited the merchant whom he accommodated
to give or transfer to the money-dealer some of these documents of debt which he had
received from other merchants for the goods he had brought to and sold at the fair.
To the money-dealer this was also desirable, as affording a double security for the
money he advanced and the credit he gave ; and the document of debt thus trans-
ferred, for a certain sum advanced in cash by a money-dealer at a fair, specifying a
particular pry-day at a subsequent fair, to be icept either in the same or in a distant
town, and uader the peculiar jurisdiction of the fair, containing a warrant ibr arresting
the person of the debtor who should fail in making payment, combines all tlie essen-
tials, and obviously presents the model, of our modern bill of exchange. The precise
era of that most useful invention does not ajipear to have been exactly ascertained ; but
that it originated, in the manner we have just seen, in the usages and customs observed
and in the regulations adopted at fairs, from considerations of general security and
convenience, there is every reason to believe. And after it was once established upon
a small scale, the utility and convenience of the invention behooved gradually to lead
to its more extensive adoption, particularly in foreign and maritime commerce. In-
deed, it seems probable that bills of exchange, such, or nearly such, as we have at
present, first came into general use in the cotnse of the cxteniled commerce carried on
by the maritime cities of Italy, and of the south of France and Spain, under their com-
paratively free and well-administered governments. Weber, in his IJicerche suU' Originco-
eulla Natura del Contralto di Cambio, published at Venice in 1810 states positively that

CU. l] ORIGIN AND FUNCTION OF NOTES AND BILLS. 3

These facts have an interest far beyond that which may be
felt only by tlie historian or antiquary. For if they help us lo
understand the reason why this most useful invention was made
at that period, and was not made before, they may also assist

sudi dofuinents were in use at Venice in 1171 ; and a law of Venice of 1272 clearly
desin:nates bills of exchange. The unpublished 'statute of Avignon, of 124.'5, contains
a paragraph entitled De Litteris Caml)ii ; a statute of Marseilles, dated 125.3, presents
evident traces of them ; and a transaction of this description is attested by a document
of 1256, relative to England. Further, in his CoUeccion Diplomatica, Don Antonio
Captnany has discovered and recorded, in tiic middle of a public authentic instrument,
the following copy of a bill of exchange, dated 28th April, 1404, drawn by a merchant
in Bruges upon a mercantile company in Barcelona, which approaciies pretty much to
the present form, and shows that such negotiable documents were then in frequent
use: ' Al nome di Dio, Amen. A di Aprile xxviii, 1404. Pagate per questa prima
di camb. a usanza, a Pietro Gilberto c Pietro Olivo, scuti mille, a sold. x. Barcelonesi
per scuto : e quali scuti mille sono per cambio che con Giovanni Colombo, a Gressi
xxii. de gresso per scuto, ct Pon. a nostro conto ; et Christo vi guardi. (Subtus vero
erat scrijjtum.) Antonio quart. Sab. di Brugis.' It seems idle, tlierefore, to look for
the origin of these negotiable documents in any particular event, occurring in any
particular country ; as Montesquieu seems to have done in the expulsion of the Jews
from France, in 1181, by Philip Augustus, according to the story first told, it is
believed, by Cleirac, in his Us et Coutumes de la Mer. It is, no doubt, true, as
observed by M. Nouguier, the latest French writer on the subject (18.39), that there is
a distinction between the cause or occasion, and the fact or event, of the invention of
bills of exciiange ; that if we inquire what cause has led to the invention, the true
answer is, the necessities of commerce ; but that if we inquire who were the inventors,
in what position, and by whom, these necessities were most strongly felt, and what
person or persons, experiencing the urgency of these necessities in the most lively
manner, produced the thing invented, it would be absurd to call the extension of
commerce the inventor; for this would be to confound the mover (moteur) with the
agent. It is also highly probable tliat the Jews, being in these ages, as we have seen,
the chief campsores or money-lenders, persecuted from mistaken religious views, and
on account of their alleged pecuniary extortions, scattered over the European king-
doms, yet in a manner forced to keep up a pretty constant communication with each
other, clever and acute naturally, and comparatively skilful in such business, from
having been trained to it for generations, were really the first inventors of bills of
exchange in a rude state. But that they made the discovery or invention at the precise
time, and solely in consequence, of their expulsion from the kingdom of France by
Philip Augustus, is not very likely in the circumstances, does not appear to be proved
by any contemporary, or nearly contemporary, authority or document, or by any other
authority than the statement of Cleirac, in 1661, made nearly five hundred years after
the alleged event, and which seems to have been repeated by subsequent French writers
without much further investigation."

Hume (Hist. Eng., ch. 12) states, that in the year 1255 the Bishop of Hereford, being
at Rome as deputy from the English Church, in order to replenish the Pope's exhausted
treasury and pay the debt of Henry III., drew bills of different values, but amounting
in all to 150,540 marks, on all tlio bishops and abbots of the kingdom; and granted
these bills to Italian merchants. His authority is the Historia Major of Matthew Paris,
pp. 612, 628 (edit. 1640, pp. 910, 911, 914), and the Chron. Thomse Wykcs (Vol-

4 NOTES A^'D BILLS. [CH. L

US in comprehending the exact purpose whicli they were in-
tended to accomphsh, and the function they do in fact per-
form, and thus they will aid us in discovering the true prin-
ciples of the law in relation to them ; for these must necessarily
be such as will promote that purpose and function.

The views which we entertain on this subject, and have briefly
intimated elsewhere, are these. We consider that some exchange
of commodities must have existed among men as soon as society
existed ; for one of the objects for which society was formed, and
one of the influences which held it together, must have been the
facility which it afibrded its members to make their superfluities

ume 2 in Gale's Historiaj Anglican^ Scriptores Quinque, Vol. 2). Wykcs puts this
transaction in the year 1260. But neither Wykes nor Paris warrants us in considering
these hills as anything more than letters directing the payment of money " tali et tali
mercatori Senensi aut Florentino," That given by Paris differs entirely, in form, from
the old bills referred to by Capmany and Arnolde, and from bills now in use ; but in
nature and quality is perhaps the same, but not negotiable. Macpherson (Annals of
Commerce, Vol. 1, p. 405), referring to the same occurrence, says : " Though the
excellent accommodation of remitting money by bills of exchange was probably known
long before this time in Italy and all other countries in which there was any commerce,
there is not, I believe, any express mention of them (so little attention did historians
pay to matters of real utility and importance) till a very extraordinary and infamous
occasion connected them with the political events of the age."

In Anderson on Commerce, Vol. 1, p. 171, bills of exchange are said to be referred
to by a charter of Hamburg in 1189, and to have been at that time " very new in
Europe." In 1307 Edward I. prohibited the payment of tithes to the Pope in coin or
bullion, but directed that the sums raised should be delivered to merchants in England,
to be remitted to the Pope "pe»" viam cambii." And by act of Parliament, in 1381,
reciting the great mischief which the realm suffered because gold and silver, money,
plate, jewels, &c. were carried out " so that, in eftect, tiicre is none thereof left," it is
enacted that no moneys, plate, &c. should be sent beyond sea, and no ])ayments, other
than salaries to the king's officers, made, except by bills of exchange, upon the oath
of the merchant exchanging, and at the special license of the king. Upon which the
author observes : "This act too plainly shows how little the trade and nature of ex-
rliange by bills was then understood in England ; though long before this time in
familiar use in the free cities of Italy, in the Netherlands, Hamburg, &c. So incon-
siderable then were our foreign commercial dealings." LI., pp. 274, 373, 374.

Macpherson, in his Annals of Commerce, Vol. 1, p. 367, states as follows : "1202,
January 6th. King John, having occasion to send two agents to Home, wiiere no
business could be forwarded without money, furnished them with a letter addressed to
all merchants, whereby he bound himself to repay the sums advanced to his agents, «Scc ,
at such time as should bo agreed upon, to any person presenting his letter, together
with the acknowledgment of his agents for the sum received by tiiem." He is said to
have re|Kafedly practised tiio same method, and an earlier instance is referred to.
His authority is Prynne's Hist, of King Jolin, pp. .5, 11.

The following legend, says Mr. Johnson (Law of Bills of Ex., LonuoD, 1839^ has

CH. I.] ORIGIN AND FUNCTION OF NOTES AND BILLS. 5

supply their wants. How long this state of things continued, or
how long this interchange was effected by means of barter alone
we do not know, because, at the beginning of recorded history,
we find money in use among men. Tiiis was a great step in ad-
vance. Something was found to represent all other things in this
business of interchange. The articles originally used for this
purpose were two metals, so generally found, and in such quan-
tities, as to be sufficient for the purpose, and yet not found with-
out an expenditure of time and lal)or wliich would prevent them
from becoming too common, and would thus impart to them a
sufficient value. And the experience of all subsequent ages has

with all f^ravity, been adduced to prove that liills of exchange were used in the fourth
century: " The philosopher Synesius, afterwards Bishop of Ptolemais, about 410, hav-
ing converted a pagan philosopher, Evagrius of Cyrene, to Christianity, the convert
soon afterwards i)rought to Synesius three hundred pieces of gold for the poor, re-
questing a hill, under his hand, that Christ should repay it him in another world, with
which Synesius complied ; and not long after, Evagrius being about to die, he directed
this bill to be deposited in his coffin. Soon after his death, he appeared in a vision to
his friend the Bishop, and told him to come to his grave and take his bill, which upon
Synesius doing, he found his bill in the hand of the corpse, with this receipt written
u])on it : 'I, Evagrius the philosopher, salute thee, most holy Bishop Synesius. I
have received the debt which in this paper is written with thy own handwriting. I am
satisfied, and have no lawful claim for the gold which I gave to thee, and by thee to
Christ, our God and Saviour.' Good Richard Baxter, when commenting upon this
marvellous story, which he evidently believed, very gr.ively remarks : ' If any be
causelessly incredulous, there arc surer arguments which we have ready at hand to
convince him by.' "

The following form of bills in use about the year 1500 in England is taken by Mr.
Johnson from the Chronicle of Richard Arnolde : "Be it knowen to all M''. y' I, R. A.
Citezen and Habd'. of London, have rcss'. by Exchange of N. A. Mercer of the same
Cite XX. li. St.] whiche twenty Ponde St. to be payed to the sayd N. or to the Bringei
of this Byll, in Synxten Marte next comyng, for VI. 's viij. d' st] IX. s. iiij. g. fll.]
Money Currant in the sayd Marte ; and j-f ony defimt of paycment be at the Day in
allc or ony part y'rof, that I promyse to make good all Costes and scathes that may
growe therby for defaute of pavement, and hereto I bynde me myn Executours and all
my Goodis wheresoever they may be founde, in Wytnesse whereof I have written and
Bealyed this Byll, the X Day of Marche A" Dni. MCCCC. &c." Mention is made
of " letteres dVschange," in stat. 3 Rich. II. c. 3 (1379). The first reported case is
Martin v. Boure (1 Jac. 1), Cro. Jac. 6.

See further upon this point, 3 Kent Com. 71, 72 ; Story on Bills, §§ 5 - 11 ; Chitty
on Bills, pp. 10, 11; Glen on Bills, pp. 1-9; Pothier, La Traite du Contrat de
Change, Partie I, chap. 1 ; Montesquieu, Spirit of Laws, B. xxi. chap. 20 ; Molloy,
De Jure Marit. et Nav., B. 2, chap. 10 ; Anderson on Commerce, Vol. 1, pp. 204, 385,
411, 422 ; Macphcrson's Annals, Vol. 1, pp. 399, 474, 571, 592, 602, 615 ; Ilallam's
Intr. to Lit. of Europe, VoL 1, p. 68, note; Smith's Wealth of Nations, Vol. 1,
>. 38.

6 NOTES AND BILLS. [CH.I

provad that the selection was either very fortunate or very wise,
for gold and silver have remained to this day the most universal
and tlie most adequate representatives of all property. From
the earliest intimations it may be inferred that these metals were
first used as a medium of exchange, by weight ; but another step
was taken at a period so remote that we have no certain knowl-
edge of it, and then they were coined into money.

This instrument of commerce answered all the purposes for
which it was wanted for many ages. It satisfied all the require-
ments of social life, and of commerce, through the early Eastern
empires, and those of Greece and Rome. It is said, but upon
somewhat doubtful authority, that some kind of paper-money
was used in Tartary, or China, or Japan, a thousand years ago ;
but nothing is known certainly about this.((;/) In Europe, gold
and silver money were the only circulating medium, and were
sufficient ; but five or six hundred years ago the discovery was
made of a new circulating medium, of which it is the charac-
teristic quality, that it represents that which represents every-
thing else.

The use of money enlarged human intercourse, or so much of
it as may be included in the widest sense of the word commerce.
It made interchanges possible and easy, which would otherwise
have been very difficult, if not impossible. We cannot imagine,
for example, the whole commerce of Greece and Rome, or a hun-
dredth part of it, carried on by actual barter of commodities.
Precisely in the same way, the invention and use of paper to rep-
resent money gave a new enlargement to commercial intercourse,
and greatly increased its facilities and its possibilities. For we
could not now suppose the commercial intercourse between Amer-
ica and Euroi)e, 'or example, to be carried on wholly by actual
exchange of the precious metals, — as must be the case if bills
and notes were abandoned, — without a cost and hindrance which
would be fatal to a very large part of it.

Tii<3 invention and use of money conferred upon mankind the
vast benefits which have ever flowed therefrom, because money
represented all other connnodilies, and for no other reason what-
ever, lie who had any supei'liuities on hand was no longer
obliged to take the trouble of storing tlieni and the risk of their

(<i) 4 Mod. Univcrs. Hist. 499.

en. I.] ORIGIN AND FUNCTION OF NOTES AND BILLS. 7

dos^truction, or to save them by exchanging thcni for tlie suj)er-
fluitics of sonic accessible neighbor, whether these were precisely
what he wanted or not. For now he might sell his sui)erfluities,
and tiicir vahie was then invested in something easily preserved,
and which coidd always be exchanged for tlie very article he
wanted, as soon as he found it within his reach. JJut after a
time, this exchange was to be made in such quantities, and at
such distances, that it cost too much in time and trouble to l)c
profitable ; and here is a natural limit to commerce l)y mere
money, which seems to have been reached by the nations of Eu-
rope some few centuries ago. Beyond this, therefore, it is plain
that commerce could not have grown, unless new facilities, by
means of new instruments, had been provided for it ; and this
was done by the invention and use of bills of exchange. Just
as, by the help of money, a hundred oxen could be exchanged
for a hundred pieces of cloth, at distances which would have
made the actual transfer of the oxen and the cloth too onerous
to be advantageous, so now, commercial transactions which would
have required large bags or boxes of money to be sent back and
forth at great cost, both of time and money, and with mucli
trouble and some hazard, can be carried into full effect, with
equal promptitude, safety, and facility, by exchanging small pieces
of paper. And these two inventions, one made at the beginning
of human society, and the other but a few centuries since, are
useful for precisely the same reason ; money represents all com-
modities, and so prevents the necessity of an actual exchange of
commodities ; and bills and notes represent money, and so pre-
vent the necessity of an actual transfer of money.

Moreover, as gold and silver were first used by weight, and
it was a distinct though very speedy improvement to coin them
into money, so bills of exchange were first used only for the
benefit of a specified payee, but were soon perfected into the
indispensable instrument of commerce which they now are by
being made negotiable. For this adds an entirely new element
to th AY utility. By means of indorsements, which may be ex-
tended indefinitely, negotiable paj)er not merely makes money
m one place or at one tnne become money in another place or
at another time, without actual transfer, and not merely makes
credit the equivalent of money, but it represents and carries
with it the accumulated credit of all who become partie.'' to
the paper.

8 NOTES AND BILLS. [CH. 1.

We have thus stated at some length our views of the purpose^
or as it might be called, in technical phrase, the final cause,
of the invention and use of negotiable paper in the forms in
which it is now commonly employed, because we believe that we
reach, in this way, the foundation on which all the principles of
law peculiar to negotiable paper finally rest. For the law exists
for the sake of those interests which it defines and guards, and
is adequate to its object or otberwise, exactly in the proportion
in which it actually subserves or hinders the purposes of tbose
institutions or usages for which it lays down the rules. In tbe
present instance, the law of negotiable paper is what it should
be, in the degree in which it causes or permits negotial)le paper
to become that exact representative of money, which such paper
was invented and is used for. And we shall be able to see,
witli great clearness, that the principles of this law are very
accurately adapted to this end.(e)

We shall find it useful to look at this end and purpose, when
we are seeking to determine what are, and what are not, the
true principles of this law. And, perbaps, if we find rules
still in force, or held by one court or another, which cannot
be regarded as well adapted to carry out this representation
of money by paper, and make it secure, safe, and effectual, we

(e) The most striking characteristic of money, as distinguished from otlicr species of
proi)erty, is the facility and freedom with which it circulates. By means of the stamp,
its precise value is ascertained by mere inspection ; and, by a rule of law, which wo
pliall notice hereafter, the possession of the bearer is conclusive evidence of title, for
the protection of those who deal with him in good faith. Any one taking it, therefore,
in the course of business, need look no further tlian to the face of the coin and the pos-
session of the person from whom he receives it. These are qualities which every repre-
hcntative of money must possess in order to answer its purpose eftectually ; and we shall
soe that negotiable paper does possess them in an eminent degree. In (.lihson r. Minct,
1 II. Bl 600, K//re, C. B. said: " Kverything which is necessary to be known, in order
that it may be seen whether a writing is a bill of exchange, and as such by the custom
of merchants partakes of the nature of a specialty, and creates a debt or duty by its
own proper force, whether by the same custom it be assignable, and how it shall be
assigned, and whether it has in fact l)een assigned agreeable to the custom, ajjpears at
once by the bare inspection of the writing ; with the circumstance, in the ease of a bill
payable to bearer, of that bill being in the possession of him who claims title to it. Tho
wit of man caniKjt dcvi.se a thing better calculated for circulation. The value of the
writing, the a.ssignable ([uality of it, and the |)articular mode of assigning it, are created
and determined in the original frame and constitution of the instrument itself; and the
|)arty to whom such a bill of exchange is tendered has oidy to read it. need look no
fiiilhcr, and lias nothing to do with any private iiistory that may belong to it."

en. I.] ORIGIN AND FUNCTION OF NOTES AND BILLS. 9

may be able to discover that these rules have been l)roiight
from the common law, where their use and })ur[)Ose were very
different, and have not yet been moulded cither by usage or
adjudication, that is, either by merclumts or by courts, into a
suitable conformity with the nature and objects of this peculiai
class of mercantile contracts.

It is quite important to remember, that it is this element of
negotiabUUy which makes a contract founded upon paper thus
adapted for circulation different in many important particulars
from other contracts known to the common law. Fur this very
characteristic quality of negotiability was itself unknown to the
common law. A simple promissory note, or, in other words, a
written promise to pay money, must have been in use among men
almost as long as the art of writing. Indeed, references to just
such an instrument as this are found in the civil law.( /) But
when negotiable promissory notes were first used, and when they
were first recognized, with all the negotiable qualities which now
belong to them, by tlie law of England, are questions of consid-
erable difficulty. In 1704, a statute of Queen Anne {g-) enacted,
" That all notes in writing that shall be made and signed liy any
person, &c., whereby such person, &c. shall promise to pay to
any other person, &c., his, her, or their order, or unto l)earer,
any sum of money mentioned in such note, shall be taken and
construed* to be, by virtue thereof, due and payable to any such
person, &c. to whom tiie same is made payable ; and also every
such note payable to any person, &c., his, her, or tiieir order,
shall be assignable or indorsable over, in the same manner as
inland bills of exchange are or may be, according to the cus-
tom of merchants ; and that the person, &c. to wiiom such sum
of money is or sliall be by such note made payable, shall and may
maintain an action for the same, in such manner as he, she, or
they might do upon any inland bill of exchange, made or drawn
according to the custom of merchants, against the person, &c.
who signed the same ; and that any person, &c. to whom such
note that is payable to any person, <fec., his, her, or their order, is
uidorsed or assigned, or the money therein mentioned ordered to
be paid by indorsement thereon, shall and may maintain his, her,

(/) V)\'^. lib. 22, tit. 1, 41, § 2; Dig. lib. 2, tit. U, 47.
(g) 3 and 4 Anne, c. 9.

10 NOTES AND BILLS. [CH. I.

or their action for such sum of money, either against the person,
&c. who signed such note, or against any of the persons that
indorsed the same, in like manner as in cases of inland bills of
exchange."

The preamble of this statute recites as the cause of it, that
promissory notes had been held not negotiable. This doctrine is
generally ascribed to Lord Holt, who is considered as urging it
with much pertinacity, against the wishes and opinions of his re-
luctant brethren. But it seems as if he held a promissory note
payable to order to be non-negotiable in form, but not in sub-
stance : for he says, in the case of Buller v. Crips, (A) which was
determined in 1702, and to which the Parliament probably re-
ferred especially : " If the indorsee had brought this action against
the indorser, it might peradventure lie ; for the indorsement may
be said to be tantamount to the drawing of a new bill for so
much as the note is for upon the person that gave the note."
And certainly the indorsee then would not claim as assignee of
the note, but as indorsee under the law merchant. Nor can it be
said that the statute of Anne, by the words in the preamble, " it
hath been held," <fcc., affirms this to have been the law ; but the
better construction may be, that the Parliament thought the court
mistaken, and hastened to prevent their erroneous decision from
becoming law, by their controlling statute. This view is, per-
haps, supported by the language used in respect to Lord IIoICs
ruling on this point ; thus, in Grant t'. Vaughan,(i) Sir F. Norton
and Mr. Dunning, on behalf of the plaintiff, remarked, that he
was " peevish " ; and Lord 3I(iHs/ickl said, " Lord Ho/t got into
a dispute with the city aljout it " ; by the city, meaning the mer-
chants of Londfjn. Li the same case,(y) Lord Mansfield spoke
of the '" first struggle of the merchants," which " made Holt so
angry with them," and though he thinks the mcrclnints were in
the wrong, he says the reasons given by the judges " are equally
ill-founded." This (question may liave some ini])()itaiu;e ; be-
cause it is in fact tlie question, Wiiat were notes of this kind, by

(/() f) Mod. 2'J. This iu'tioii was l)y iiii imlorscc of a ])riiTniss()r_v iiott; n^ains* tha
maker; ami Lord Jfull was of o])iiiion tliat tlic action would not iif, litit no judtjinent
was given.

(i) 3 Hurr. ir)L'0.

{j) I W IJL 483, 487.

Cll. I.J OUIGIN AND FUNCTION OF NOTES AND BILLS. 11

the law of England, before the statute of Auue ? And this ques-
tion is again the question, Wliat is the law in respect to thera iu
those of our States in which the statute of Anne is not in force ;
It is true that in most, or perhaps all, of these States, other stat-
utory provisions, or a course of adjudication, have placed these
notes on a somewhat similar ground with that which they oc-
cupy by the statute of Anne ; but not, perhaps, so as to render
quite unimportant the question. What was the law before this
ittatute ? We have not space to examine this question at length,
and upon the authorities, but will content ourselves with saying,
that we incline to hold, first, that foreign negotiable bills were in
use and were known to the law long before negotiable notes were
known ; (k) and, second, that inland negotiable bills were in use
before negotiable notes, which, however, is not quite certain ; (/)
third, that inland bills and notes were confounded together in the
use of them by merchants, and were considered as the same

(L-) It is certain tliat foreign bills of exchange were known to tiie courts as early as
the reign of Elizabeth, for there are extant precedents of declarations upon them of that
period. See RastcU's Entries, 10 a, .338 a. The earliest reported case in which they
are mentioned is Martin v. Boure (1 Jac. 1), Cro. Jac. 6.

(/) In Broniwich v. Loyd, 2 Lutw. 1.585, Trebij, C. J. said : "Bills of exchange at
first were extended only to merchant strangers trafficking with English merchants, and
afterwards to inland bills between merchants trafficking one with another here in Eng-
land, and then lo all persons trafficking and negotiating, and recently to all persons,
whether trafficking or not." The better opinion is, that inland bills of exchange came
into use about the middle of the seventeenth century. The earliest case in the books,
which api)ears clearly to have been upon an inland bill, is Chat v. Edgar, 1 Keb. 636
(1663). In that case, a butcher, having bought cattle of the plaintitf, who was a grazier
in Norfolk, came to the defendant, who was a parson, and desired him (as he liad
money in London) to draw a bill on J. S. in London, in whose hands it was, payable
to the plaiiitilF, and that he would repay the parson in the country. The parson drew
the bill, with private advice to J. S. not to pay the plaintiff till he, the parson, had
received the money of the butcher, who broke and became insolvent; and so, on default
of payment by J. S., the plaintifl" brouj,dit bis action against the parson, as drawer of
the bill. No objection appears to have been made on the ground that the bill was
inland. In BuUer v. Crips, 6 Mod. 29 (1702), Holt, C. J. said : "I remember when
actions uj)on inland bills of exchange did first begin ; and there they laid a particular
custom between London and Bristol ; and it was an action against the acceptor; the
defendant's counsel would put them to prove the custom ; at which, Ilale, C. J., who
tried it, laughed, and said they had a hopeful case of it. And in my Lord Xurtli's
time it was said, that the custom in that case was part of the common law of England ;
and these actions since became frequent, as the trade of the nation did increase ; and
all the difference between foreign bills and inland liills is, that foreign bills must be
protested befoiv a public notary before the drawer can be charged, but inland bills
need no protest."

12 KOTES .\XD BILLS. [CH. I

thing, both by them and by some of the courts ; (m) fourth, that
those notes, although not always discriminated by name from
bills of exchange, were certainly in common use before that
statute, as may be inferred from the insisting of the merchants

{ni) For this reason it is impossible to trace the history of promissory notes, prior to
the statute of Anne, with any great degree of accuracy. In (irant v. Vaugiian, 3 Burr.
1.525, Lord Munsjic-hl said : " Upon looking into the reports of the cases on this head,
in tlie times of King William the Third and Queen Annj, it is difficult to discover by
them when tlie question arises upon a bill, and when upon a note ; for the reporters do
not express themselves with sufficient precision, but use the words ' tiote' and ' hill' pro-
miscuously." The truth probably is, that the term promissori/ note was not much in use
prior to the statute of Anne. In Lord Hull's time, the question was, not wiiether the
instruments which are now known as promissory notes were negotiable, as distinct and
different instruments from bills of exchange, but whether they were bills of exchange.
This sufficiently appears from the cases of that period. Thus, in Gierke ;; Martin, 2
Ld. Raym. 757, the plaintiff counted upon the custom of merchants, as upon a bill of
exchange ; and showed that the defendant gave a note, subscribed by himself, by which

he promised to pay to the plaintiff or his order. A verdict having been given for

])Iaintiff, it was moved, in arrest of judgment, that this note was not a bill of exchange
within tiie custom of merchants, and therefore the plaintiff, having declared upon it
as such, was wrong. It was argued by Shower, for the plaintiff, that this note, being
payable to the plaintiff or his order, was a bill of exchange, inasmuch as by its nature
it was negotiable ; that there was no difference in reason between a note which saith,
" I promise to pay to J. S. or order," &c., and a note which saith, '• 1 pray you to pay
to J. S. or order," &c. ; they were both equally negotiable ; and to make such a note a
bill of exchange could be no wrong to the defendant. " But Holt, C. J. was totis viri-
btis against tlic action ; and said that this note could not be a bill of exchange. That
the maintaining of these actions upon such notes were innovations ujion the rules of
the common law; and that it amounted to the setting up a new sort of specialty un-
known to the common law, and invented in Lombard Street, which attempted in these
matters of bills of exchange to give laws to Westminster Hall. That the continuing
to declare upon these notes upon the custom of merchants proceeded from obstinacy
and opinionativeness, since lie had always expressed his opinion against them, and
since there was so easy a method, as to declare upon a general im/diitalus ussiimiisit
for money lent," &c. And sec Potter v. Pearson, 2 Ld. Raym. 759 ; Burton v. Soutcr,
2 Ld. Raym. 774; Williams v- Cutting, 2 Ld. Raym. 825, 7 Mod 154. BuUer v. Crips,
6 Mod. 29, was an action upon a note by the indorsee against the maker ; and the
plaintiff declared upon the custom of merchants as upon a bill of exchange. Upon a
motion in arrest of judgment, lloll, C. J. said : " The notes in question arc only an in-
vention of Tin; GOM).SMiTiis in Lnwixml Street, who had a mind to make a law to bind
all those that did deal with them ; and sure to allow such a note to carry any lien with
it were to ttn-n a piece of ]iapcr, which is in law but evidence of a parol contract, into
u specialty ; and besides, it would empower one to a.ssign that to another which he
could not have himself; for since he to whom this note was tnade could not have this
action, how can his assignee have it? And these notes arc not in the natine of bills of
exchange; for the reason of the custom of l)ills of exchange is for the expedition of
trade and its safety ; and likewise it hinders the exportation of money out of the realm"
At another day he said, "that he had desired to speak with two of the most famous

CH. I.] ORIGIN AND FUNCTION OF NOTES AND BILLS 13

on the great mischief which would result from the denial of their
negotiability, they telling Lord Holt " that it was very frequent
with them to make such notes, and that they looked upon them
as bills of exchange, and that they had been used for a matter
of thirty years " : [n) and fifth, that these notes were, therefore, at
the time the statute was made, negotiable by the law merchant
of England, which was and is as much a part of the law of Eng-
land as — to use the strong language of Christian — the laws
relating to marriage or murder. (o)

merchants in London, to be informed of the mighty ill consequences that it was pre-
tended would ensue by obstructing this course ; and that tliey had told him it was
very frequent with them to make such notes, and that they looked upon them as bills
of exchange, and that they had been used for a matter of thirty years, and that not
only notes, but bonds for money, were transferred frequently, and indorsed as bills of
exchange."

()i) See preceding note.

(o) 1 Bl. Com. 75, n. This question is fully considered in I Cranch, 367, Appen-
dix, n. A, in a learned note by the reporter. And see Irvin v. Maury, 1 Misso. 194;
Dunn V. Adams, 1 Ala. 527, where it was held that promissory notes were negotiable,
independently of the statute of Anne.

14 NOTES AND BILLS. [CH. D

CHAPTER II.

OF PROMISSORY NOTES,

SECTION I.

DEFINITIONS.

A PROMISSORY note is, in its simplest form, only a written
promise. Almost always, however, it is a promise to pay money.
He who promises signs the note ; and the promise is made to a
specified promisee, or to him or his order, or to the promisor
or his order, or to bearer or holder.

The promisor is considered as making the note, and is called
the maker. The promisee is called the payee. Where the
promise is to pay to a specified payee, without further words,
the note is not negotiable. Such a promissory note is little
more than evidence of indebtedness, although there are some
rules of law which arc peculiar to this instrument. These we
will consider hereafter. At present, we speak particularly of
a note made payable to order ; it may be to the promisor or
order,(;?) to the promisee or order, to the order of the promisor,
or to the order of the promisee ; (r/) in either case, and equally,
it is a neg-oiiable note.

The word " negotiable," from the Latin word " ncgotium,"

(p) Sec post, p. 18, note v.

(7) It seems to have been once .1 matter of doubt wliethcra note p:»y:iblc to the " order
of A. B." was entirely equivalent to one payable to " A. B. or his order," it being ob-
jected that in tlie former case no one but an indorsee of A. B. could sue upon the note,
and that A. B. himself could not, at least without indorsinir it to hinT^cIf But it was
long since settled, that a bill or note payable to a man and his order, or to his order

only, is one and the same. See Fisher v. Pomfrct, 12 Mod. 125 ; v. Ormston,

10 Mod. 286 ; Frederick i-. Cotton, 2 Show 8 ; Smith v M'Clure, 5 Fust, 476. In
this last case Lord Elloihorowjh said : "A bill ])ayable t^ a man's own order was pay-
able to himself, if he did not order it to be pai<l to any other." And see Sherman ►
Goble, 4 Conn. 246 ; Iluiing v. Ilugg, 1 Watts & S. 418.

CH. n.] DKFINITIONS. 15

which is adequately translated by " business," is given to notes
of this description, because they derive from this word "order"
the capacity of entering into commercial business as an instru-
ment of the greatest importance. By far tiie greater part of the
business of this country is done by means of them. The reason
why, by the use of this word, they become this instrument, is,
that if A promises to pay B, no one but A and B are parties
to this contract ; no one else can become a party to it, so as
to enforce it in his own name, in the same way, and with the
same effect, as if he had been an original party. A note which
is not to order, or not negotiable, can be transferred, and the
new owner collect it in a certain way and under certain cir-
cumstances, which will be hereafter considered. But if the note
be payable to order, it is a very different instrument. Then, A
promises not merely to pay B, but either B, or, at B's election,
such other person as B may order A to pay the note to. There-
fore, when B orders A to pay the note to C, it follows that C
may claim payment as if the note had been originally payable
to himself, or, in other words, C stands fully in the place of B.
And if B orders A to pay the note to C or his order, then C
has the same power of substituting another that B originally
had, and this substitute may have the same power, and this
indefinitely. This order is regularly made by writing on the
back of the note ; or, in the language of the law merchant, by
indorsement.

It was once questioned whether the negotiability of a note,
created by the use of the words " or order," was not exhausted
by the first order given ; that is, by the first indorsement. It
is now, however, well settled, that these words give to a bill or
note a permanent negotiability, so that an indorsement gives to
any indorsee the right of further indorsement, and the same to
his indorsee, and so on, indefinitely ; and therefore these words
"or order" never need to be repeated in the indorsement. (r)

(>•) This was first decided in More v. Manning, 1 Comyns, 311. That was an action
of assumpsit upon a promissor}' note, made by the defendant, and payable to one
Statluvn and order; Stathain assigned it to Wither/iead, and Wkherhtad to the plaintiff ;
and upon a demurrer to the dechvration an cxce])tion was taken, because the assignment
was made to Witherhead, witliout saying lo him and order, and then lie could not assign
it over ; for by this means Stathain, wlio iiad assigned tlie note to Witherhead, witliout
6ul)jecting himself to his order, would be made liable to be sued by any subsequent
indorsee. "And to this tlic chief justice at first inclined, but afterwards it was re-

16 NOTES AND BILLS. [CH IL

It lias even been doubted whether an indorser can, by a re-
strictive indorsement, limit or prevent indorsement by the in-
dorsee, (i) It is, however, now quite clear, that indorsements may
be made restrictive, in any way that the indorser pleases, by the

solved by the whole court that it was good. For if the original bill was assignable,
(as it will be if it be payable to one and his order,) then he to whonisoever it is as-
signed has all the interest in the bill, and may assign it as he pleases." A few years
later, in Acheson i-. Fountain, 1 Stra. 557, it appeared that the plaintiff had declared
upon an indorsement made by WiUiam Abercrombie, whereby he appointed the pay-
ment to be to Louisa Acheson or order ; and upon producing the bill in evidence, it
appeared to be payable to Abercrombie, or order ; but the indorsement was only in these
words, "Pray pay the contents to Louisa Acheson"; and therefore it was objected
that the indorsement, not being to order, did not agree with the plaintiff's declaration.
" But upon consideration, the whole court were of opinion it was well enough, that
being the legal import of the indorsement, and that the plaintiff might upon this have
indorsed it over to another, which would be the proper order of the first indorser."
But the question was not set at rest until the case of Edie v. East India Co., 2 Burr.
1216. That was an action upon a foreign bill of exchange, drawn upon and accepted
by the defendant. The bill was payable to one Camjibell or order, and was indoised
by him to one Ogilby, and by Ogilby to the plaintiff. The indorsement to Ogilby
was without the words "or order" ; and it would seem from the case that it was
made to him as the agent or servant of Campbell, and without consideration. After
the indorsement to the plaintiff, Ogilby became insolvent, and the question was, whether
the plaintiff or Campbell should bear the loss. Upon the trial, Lord Munsjteld per-
mitted the defendant to put in evidence as to the usage of merchants. Whereupon the
cjishier of the Bank of England testified, "that the bank, if they ever discounted the
bills not indorsed to order, did it only upon the credit of the inilorser ; but that other-
wise they would not take them, not considering them as being negotiable." Another
witness testified that an indorsement without these words was restrictire to the particular
person specified in the indorsement, and was merely in the nature of a jieisonal authority
to receive tiie money. On the other hand, a notary-public, called by the plaintiff, testi-
fied, that a bill was " negotiable, notwithstanding the omission of these words, and
that no objection of this sort was ever made. Indeed, if the bill should be indorsed,
' Pay the contents to A. B. onlij' it was looked upon to be a restriction of the payment
to A. B. personally." His Lordship instructed the jury, that, by the general law, (laying
the usage out of the case,) the indorsement would follow the nature of the original bill,
und be an absolute assignment to the indorsee or his order ; but ujion the evidence of
usage, he left the question to the jury, who found a verdict for the defendant. Upon
a motion for a new trial, the whole court held that the evidence of usage ought not to
have been received, because the law was settled by the two cases cited above. And
upon the nierits of the question, Lord Mansfield said : "A draught drawn upon one
person, directing him to pay money to another or order, is, in its original creation, not
an authority, but a bill of exchange, and is negotiable. It belongs to the payee, to do
what he thinks proper with it, and to use it as best suits his convenience. It is his
property; and he may assign it as such, and to whom he pleases; and his direction
' to pay it to such a one,' is a direction ' to pay it to him or his order ' ; for he assigns
Jiis whole property in it, and has had a valuable consideration for .so doing."

(«) Thus, in Kdie v. East India Co., 2 Burr. 1216, 1220, H7/;ho/, J. said : "There is
a great deal of difference between giving a naked authority to receive it and transfer-

CH. II.] DEFIXniOXS. IT

use of express and definite terms. (/) We shall consider this
question more fnlly hereafter, when treating of indorsement.

If the note be made by A and be ])ayable to A's own order,
tlicre is then no payee or promisee, until A orders himself, by an
indorsement in blank, or by a special indorsement to pay the
note to B or C or some one else ; then the person to whom pay-
ment of the note is thus ordered to be made becomes the payee
or promisee, in like manner as if his name had been originally
inserted. Such a note indorsed in blank is equivalent to a note
payable to bearer. (m) If a bill be drawn on the drawer, payable
to the drawer or order, the drawer may accept it, and indorse it,
and thus hold all these relations to an indorsee. We ap})rehond
that bills .are seldom so drawn, but notes are very frequently
made payable to the maker's own order, and indorsed by him.
Indeed, in some of our larger cities, the majority of notes given
for goods are made in this way. The reason is obvious. One
who receives such a note may sell it, or offer it for discount,
without adding his own name so as to be liable as an indorser ;
and without adding his name together with the words " without
recourse," or any other which would cast suspicion. For a simi-
lar reason, if a merchant in large business caused only the
feeble notes which he took to be indorsed by the maker, and so
made transferable without his own indorsement, this again would
impair their credit. If therefore he wishes, for the reasons above

ring it over by indorsement. And I doubt whether he can limit his indorsement of it
by way of assignment, or transfer to another, so as to preclude his assignee from
assigning it over as a thing negotiable. For the assignee purchases it for a valuable
consideration, and therefore purchases it with all its privileges, qualities, and advan-
tages, one of which is its negotiability. To be sure, he may give a mere naked
authority to a person to receive it for him ; he may write upon it, ' Pray pay the
money to my servant for my use ' ; or use such expressions as necessarily import that
he does not mean to indorse it over, but is only authorizing a particular person to
receive it for him and for his own use. In such case, it would be clear that no valuable
consideration had been paid him. But, at least, that intention must appear upon the
face of the indorsement. Whereas here no such thing, nor anything tending to it,
appears upon the face of the indorsement ; it is a general assignment without any
restriction at all." And see, per Tindal, C. J., in Cunliffe v. Whitehead, 3 Bing. N. C.
828 ; Gay v. Lander, 6 C. B. 336 ; Rice v. Stearns, 3 Mass. 225. As if the payee
indorse, " Pay the contents of the within to C. D. o)ili/."

(0 Sec Sigourney v. Lloyd, 8 B. & C. 622, 3 Man. & R. 58, 5 Bing. 525 ; Treuttel
V. Barandon, 8 Taunt. 100 ; Snee v. Prescot, 1 Atk. 245 ; Ancher v. Bank of England,
2 Doug. 637.

(u) Hooper v Williams, 2 Exch. 13.

Vol. I.— B

18 NOTES AXD BILLS. [CH. n.

Stated, or any other, to have his notes in this form, he would
make it a rule to have all his notes so made. Then he could
indorse what notes he chose to, and not injure any by withhold-
ing his indorsement, (y)

(v) Notes of this kind are now common in England as well as in this country. At
what precise time they first came into use, and what was the occasion which gave rise
to them, it is impossible to say. Baron Parle, in Hooper i-. Williams, 2 Exch. 21, char-
acterizes them as " securities in this informal, not to say absurd form, probably intro-
duced long after the statute of Anne, — for what good reason no one can tell, — and
become of late years exceedingly common." So Chief Justice Wilde, in Brown ?•. De
Winton, 6 C. B. 342, said that notes in this form, according to his experience, -which
e.xtended over a period exceeding forty years, were very far from uncommon. They
seem not to have attracted the attention of courts until a recent date. It has al-
waj's been the received opinion in this country, that instruments in this form were
negotiable within the statute of Anne, and that they differed in no material particular
from notes in the ordinary form. Such also, according to the observation of eminent
counsel in Brown v. De AVinton, was the received opinion in England until the case
of Flight V. Maclean, 16 M. & W. 51. Since that case, the nature and construction
of instruments of this kind have been very learnedly and elaborately discussed
by the three principal common law courts in Westminster Hall. The case of
Flight V. Maclean came up in the Court of Exchequer in 1846. The declaration
stated that the defendant made his promissory note in writing, and thereby promised
to pay to the order of the defendant £ 500 two months after date, and that the
defendant then indorsed the same to the plaintiff. To this there was a special de-
murrer, assigning for cause, that it was uncertain whether the plaintiff meant to charge
the defendant as maker or as indorser of the note, and that a note payable to a man's
own order was not a legal instrument, and could not be negotiated. The court sus-
tained the demurrer without much discussion, "on the ground that the instrument in
question, made payable to the maker's order, was not a promissory note within the
statute of Anne, which requires that a promissory note, to be assignable, shall be made
payable by the party making it to some 'oilier person,' or his order, or unto bearer."
During the argument, however, Parke, B. put to the counsel this question : " Though
by the law merchant the note cannot be indorsed, could not the defendant make tliis a
promissory note by indorsing it to another person ? " This case was followed the next
year in the Queen's Bench by the case of Wood v. Mytton, 10 Q. B. 805, in which
precisely the same question was presented as in Flight v. Maclean, except that in the
latter it arose on a motion in arrest of judgment, whereas in the former it arose on a
special demurrer. The question was argued at considerable length, and Lord Deiiman,
after a very minute examination of the statute of Anne, held that the instrument de-
clared on was a promissory note within the terms of the statute, and judgment was
given for the plaintiff. It is to be observed, however, that Pallcson, J., during the
argument of this case, put to the counsel a question similar to that put by Baron
Parke in Flight v. Maclean. " Whatever," said he, "may be the case with respect to
a note like this before indorsement, may it not, as soon as it is indorsed, come within
the statute, either as a note payable to hearer, if it is indorsed in blank, or as a note
payable to the person designated, if it is indorsed in full ? " In 1 848 the question came
up again in the Court of Exchequer, in the case of Hooper v. Williams, 2 Exch. 13.
The instrument declared on in this case was similar to those in the two former cases,
being made payal)lc to the defendant's own order, and by him indorsed in blank. The

CH. II.]

DEFINITIONS. 19

If the note be payable to bearer or holder, then the promi:?^ is
made to any and every person who obtains possession of the note,
and presents it for payment. This note also is negotiable ; but
in a somewhat different sense, and imder a somewhat different

pleader, however, adopting the suggestion of Mr. Baron Parke and Mr. Justice Patte-
son, dechired as upon a note payable to bearer. At the trial the defendant objected
that there was a variance between the note and the declaration, and the case coming
before the court in banc upon this objection, Parke, B., in delivering the opinion of the
court, said: "In Flight v. Maclean, this court held, on special demurrer to the first
count of a declaration stating a note payable to the order of the maker, and indorsed
to the plaintiff, that the count was bad, such a note not being within the statute of
Anne. The case of Wood v. Mytton afterwards came on in the Queen's Bench. It
was an action on a similar note indorsed to the plaintiff. After verdict for the plain-
tiff, a motion was made in arrest of judgment ; and the court discharged the rule, hold-
ing, after a minute examination of all the provisions of the statute of Anne, that such a
note was within that statute, and assignable by indorsement. Though these decisions
are not at variance, as will bo afterwards explained, the construction of the statute by
the two courts differs. After a careful perusal of the statute, we must say that we do
not think that it ever contemplated the case of notes payable to the maker's order,
which are incomplete instruments, and have no binding effect on any one till indorsed.
The Court of Queen's Bench thought, that, though the first part of the first section of
the statute of Anne applied only to notes payable to another person or his order, or to
bearer, which notes it makes obligatory between the parties ; yet that the second part
applies to every note payable to any person, and therefore includes a note payable to
the maker or his order. It appears to us that this is not the meaning of this part of
the section, which is, as we think, intended to make those instruments, to which it had
previously given an obligatory effect between the original parties, transferable to third
persons, so as to enable them to sue upon them as upon the transfer of bills of ex-
change. The previous part of the section had given to the payee, when the note was
made payable to another person, or to another person or order, and to the bearer,
whoever at any time he might be, a right to sue ; thus providing entirely for notes pay-
able to bearer, whether in the hands of the original or a subsequent bearer. And then
the section proceeds to make the class of notes payable to a person or order transfer-
able. We think that the legislature, by the second part of the section, could only mean
to make that instrument which gave a right to sue assignable ; and no right to sue
could exist in any one, in the case of a note payable to the maker's order, until the
order was made in the shape of an indorsement ; until that indorsement was made, it
was an imperfect instrument, and, in truth, not a promissory note at all, and conse
qucntly not transferable under the statute. What, then, is the effect of the indorsement
to another person 1 AVe think it was to perfect the incomplete instrument, so that the
original writing and indorsement taken together became a binding contract, though an
informal one, between the maker and the indorsee, and then, and not till then, it became
an assignable note. It is well settled, that no particular form of words is necessary to
constitute a promissory note. If a man draws an instrument in the form of a bill of
exchange on himself, and accepts it, it is a promissory note. If he says, ' I pay to
A. B. £ 100,' and adds an address to the instrument, it may be declared on as a note.
What, then, is the meaning of the instrument in question ? Before the indorsement it
may be considered to be a promise to pay £ 150 two months after date to the person to
whom the maker should afterwards, by indorsement, order the amount to be paid, such

20 NOTES AND BILLS. [CH. H

system of rules from those notes which are payable to some
specific promisee or order. We shall speak of them more par-
ticularly hereafter.

indorsement being intended to have the same operation as if put on a complete note.
If, then, the indorsement should be to a particular person, or to A. B. or his order, it
would be a note payable to that person, or to A. B. or his order ; and if in blank it
■would be payable to bearer, in like manner as a sum secured by a complete note would
have been by similar indorsements. It may follow as a consequence, that the holder
might fill up the blank indorsement by writing over it his own name, and so make it
payable to himself, although it is not necessary to determine that point; and, reading
the note as payable to bearer, any one may afterwards indorse his own name, and so
make himself liable to subsequent holders, as the indorser of a complete note payable
to bearer would do. It appears to us, then, that the instrument in this case was, when
it first became a binding promissory note, a note payable to bearer, and consequently
was properly described in the declaration. This view of the case reconciles the decision
of this court in Flight v. Maclean with that of the Queen's Bench in Wood v. Mytton ;
but not the reasons given for those decisions. In the case in this court the declaration
was bad on special demurrer, as it did not set out the legal effect of the instrument.
In that in the Queen's Bench, the motion being for arrest of judgment, the declaration
was, in substance, good ; for it set out an inartificial contract, which had the legal effect
of a valid note, payable, as stated on the record, to the plaintiff. The difterence between
the two courts in the construction of the statute is of no practical consequence, as, in
our view of the case, securities in this informal, not to say absurd, form are still not
invalid ; and it miglit be of much inconvenience if they were, for there is no doubt that
this form of note, probably introduced long after the statute of Aime, and for what
good reason no one can tell, has become, of late years, exceedingly common; and it is
obvious, that, until they arc indorsed, they must always remain in the hands of the
maker himself, and so he can never be liable upon them." Shortly after the decision
of this case, the same question came up in the Common Bench, in the cases of Brown
V. De AVinton, and Gay v. Lander, 6 C. B. 336. In Brown v. De Winton the question
came up in the same shape as in Wood v. Mytton, and Coltman, J., in giving the judg-
ment of the court, delivered a very able and elaborate opinion, in which he agreed en-
tirely with tiie view taken by the Court of Exche(iuer. In Gay v. Lander the question
was presented in a little different light. We have already seen that, when a note is
made jiayablc to A. B. or his order, the words " his order " impart to the note a per-
manently assignable quality, into whose hands soever it may come ; so that, though
A. B. indorse the note to C. D. specially, without using the words "or his order," yet
C. I), may indorse it in turn to whomsoever he pleases. The point raised in Gay v.
Lander was, whether the indorsement should receive the same construction in the case
of a note payable to the order of the maker and by him indorsed, and tlie court held
that it should. Coltman, J., in delivering the opinion, said : " We think that the prin-
ci[)le on wliich the case of Brown v. De Winton was decided will extend to this case.
Tiie princiidc on which that case was decided is, that the note, before it was indorsed,
was in the nature of a promise to pay to the person to whom the maker should after-
wards, by indorsement, order the amount to be paid ; and that, after the note is indorsed
and circulated, it must be taken, as against the i)arty so making and indorsing the note,
that he intended that his indorsement should have the same effect as an indorsement by
the payee of a note payable to the order of a person other than tlie maker would Iiave
iiad. Now it is well established that, if a note be made payable to J. S. or order, and

CII. II.] FORM OF PROMISSORY NOTES. 21

SECTION II.

OF THE FORM OF PROMISSORY NOTES.

Mr. Chitty says that the usual form of a promissory note in
England is: " <£ oO (or other proper sum). London (or other
place), 1st January, 1840 (or other proper date). Two montlis
after date (or at any other specified time, or on demand), I prom-
ise to pay to ]\Ir. A. B. or order, fifty pounds, for value received.
(Signed) C D. "(?/;) In America a common form is: " New
York, January 1, 1854. Value received, I promise to pay A. B.
or order, one thousand dollars in four months. C. D." But as
no special form is necessary in law, (a;) so no one prevails in
practice to the exclusion of others. The collocation of the word?
varies, the " value received " being often at the end ; and some-
times the promise is directly to the payee, as " I promise A. B.
to pay him or his order " ; and frequently the words " from " or
"after" "date" are added to the time of payment, although,
when not added, they are of course implied.

Firms doing much business frequently have note-books print-
ed, like check-books, with a margin, on which a memorandum
of the number, date, parties, and amount may be entered for
future reference and identification. It is usual in such printed
forms to leave the date, parties, and amount in blanlv ; but
everything may be printed but the signature. That must be
in writing. It has been held, incautiously we think, that an
indorsement may be written and signed in pencil only ; (?/)

J. S., in such case, indorses the note specially to Smith & Co., without adding 'or
order,' Smith & Co. may convey a good title to any other person by indorsement."
It may, perhaps, be inferred from wiiat fell from Baron Parlce in Hooper v. Williams,
that he entertained a difFcrent opinion on this last point, but the point did not arise
in that case, and probably his attention was not particularly directed to it- See
Muldrow V. Caldwell, 7 Misso. 563; Lea v. Branch Bank, 8 Port. Ala. 119 Scull
r. Edwards, 8 Eng. 24; Blackman v. Green, 24 Vt. 17; Little v. Rogers, 1 Met.
108 ; Potter v. Tyler, 2 Met. 58.

(w) Chitty on Bills (9th ed.), 516.

(x) Morris r. Lee, 1 Sti-a. 629, 2 Ld. Raym. 1.396, 8 Mod. 362 ; Brooks v. Elkins, 2
M. & W. 74 ; Wheatley i'. Williams, 1 M. & W. 533.

(//) Geary v. Physic, 5 B. & C. 234. This was assumpsit on a promissory note by an
indorsee against the maker. It appeared that the indorsement was in pencil ; and it
was contended by the counsel for the defendant, that this was not such an indorsement
as the law and custom of merchants required, citing Co. Litt. 229 a, where Lord Coke,

22 NOTES AND BILLS. [CH. H.

and this for reasons which \rould apply as well to the note itself.
We are, however, inclined to think that better reasons might be
drawn from the nature and purpose of negotiable promissory
notes, for requiring that they should be written and indorsed
in a way less open to fraud and uncertainty than in pencil.
Perhaps a distinction should be made between a neg-oliable prom-
issory note, which should in every respect be capable of becoming
a trustworthy and efficient instrument of business, and a note

speaking of a deed, says : " Here it is to be understood, that it ought to be in parch-
ment or in paper. For if a writing be made upon a piece of wood, or upon a piece of
linen, or in the bark of a tree, or on a stone, or the like, &c., and the same be scaled or
delivered, yet is it no deed, for a deed must be written, either in parchment or paper,
as before is said, for the writing upon these is the least subject to alteration or corrup-
tion." But the court held the indorsement good. And Abbott, C. J. said : " There is
no authority for saying, that, where the law requires a contract to be in writing, that
writing must be in ink. The passage cited from Lord Coke shows that a deed must
be written on paper or parchment, but it does not show that it must be written in ink.
That being so, I am of opinion that an indorsement on a bill of exchange may be by
writing in pencil. There is not any great danger that our decision will induce indi-
viduals to adopt such a mode of writing in preference to that in general use. The
imperfection of this mode of writing, its being so subject to obliteration, and the
impossibility of proving it when it is obliterated, will prevent its being generally
adopted. There being no authority to show that a contract which the law requires to
be in writing should be written in any particular mode, or with any specific material,
and the law of merchants requiring only that an indorsement of bills of exchange
should be in writing, without specifying the manner in which the writing is to be made,
I am of opinion that the indorsement in this case was a sufficient indorsement in writ-
ing within the meaning of the law of merchants, and that the property in the bill
passed by it to the plaintiff." Bai/ley, J. : "I think that a writing in pencil is a writ-
ing within the meaning of that term at common law, and that it is a writing within
the custom of merchants. I cannot sec any reason why, when the law requires a con-
tract to be in writing, that contract shall be void if it be written in jjcncil. If the
character of the handwriting were thereby wholly destroyed, so as to be incapable of
proof, there might be something in tlie objection ; but it is not thereby destroyed, for,
when^he writing is in pencil, i)roof of the character of the handwriting may still be
given. I think, therefore, that this is a valid writing at common law, and also that it
is an indorsement according to the usage and custom of merchants ; for that usage
only rc<|uires that the indorsement should be in writing, and not that th.at writing
should be made with any s|)eci(ic materials."

The same point was decided in Closson v. Steams, 4 Vt. 11 ; Keed v. Rcnrk, 14
Texas, .'529 ; Brown v. Butchers', &c. Bank, Hill, 44.3 ; Partridge v. Davis, 20 Vt.
499, 50.3. Testamentary instruments in pencil have frequently been admitted to pro-
liatc. Sec Byrnes v. Clarkson, 1 Phillim. 22; Green v. Skii»wortli, 1 riiillim. .5,3;
Dickenson i;. Dickenson, 2 Phillim. 17.3. So it has been held that a memorandum
in pencil is sufficient to satisfy the Statute of Frauds. Merritt v. Chison, 12 Johns.
102, 8. c. no/n. (Mason v. Bailey, 14 Johns. 484; Draper v. Patlina, 2 Specrs, 292.
And in McDowel v. Ciiambers, 1 Strob. Eq. 347, it was held that a deed in pencil was
sufficient.

CH. II.] FORM OF PROMISSORY NOTES. 23

not negotiable, in which evidence of indebtedness is all that is
wanted. The same remarks would apply to a signature or in-
dorsement by initials, on which a similar ruling has been made.(c)
The signature by a mark is admitted from necessity ; but we
think it should be declared and attested at the time, in writing,
as the mark of the maker, although it may not be quite certain
that the law requires this. (a)

A note may be written on any substance capable of holding
writing, (/!>) although paj)er is most usual. Perhaps the law can
put no other check or limitation on this than to say that cvery-
tliing unusual about a note subjects it to suspicion and rigid
scrutiny, and the form, the manner, and materials must all be
compatible with the requisite certainty. Thus, if the signature
be in the body of the note, as " I, A, promise," &c., this has
been declared sufficient ; but it is suspicious. (c)

We have said that no particular form has been required by
law ; but many cases have turned upon the question whether
there was precision and certainty enough in an instrument to
constitute it a promissory note.(f/) Perhaps it would be difficult
to draw from the cases any other rule than that a note must
contain a legal promise for the certain payment of a certain
sum, and that the maker and the payee must be designated
with sufficient certainty. If, to a receipt for money, the words
" to be returned when called for " are added ; (e) if the signer of

(c) Merchants' Bank v. Spicer, 6 Wend. 443 ; Palmer y. Stephens, 1 Denio, 471. And
in Brown v. Batchers', &c. Bank, 6 Hill, 443, where a party placed the figures "1.2. 8."
upon tlie back of a bill of exchange, in pencil, by way of substitute for his name, in-
tending thereby to bind himself as indorser, it was held a valid indorsement, though
it appeared he could write.

(«) George v. Surrey, Moody & M. 516, was an a.'tioa of assumpsit by an indorsee
against the acceptor of a bill of exchange drawn by Ann Moore, payable to her own
order, and indorsed by her to the plaintiff A-ni Moore drew the bill by her mark, and
it was indorsed by mark; the writing, "Ann Moore, her mark," on the indorsement,
being in the plaintiff's handwriting. A witness was called to prove tlie indorsement,
who stated lie had frequently seen Ann Moore make her mark and so sign instruments,
and he pointed out sc me peculiarity. Tindal, C J., after some hesitation, admitted
Ihe evidence as competent, and the plaintiff had a verdict. See cases cited in preced-
ing note.

(h) But see the citation from Co. Litt., supra, p. 22, as to deeds.

{d) We shall state these cases fully when we come to consider the essential requi
sites of negotiable promissory notes, in our third chapter.

/e) Woodfolk v. Leslie, 2 Nott & McC. 585.

M NOTES AND BILLS. [CH. IL

an instrument acknowledges in it that a certain sum of money
" is due to A, payable on demand " ; (/) or that a certain sum of
money is borrowed on the promise of payment thereof ; (^'•) or
that a certain sum was received of A, to be repaid on demand
with interest ; (h) or to be repaid in one month ; {i) or stating a
balance due, for which " I am still indebted, and do promise to
pay" ; (j) we have authority for calling all of these instruments
promissory notes. In one case, a promise " to pay or cause
to be paid" was held to be sufficient. (^•)

It is settled that a note need not contain the words " promise
to pay," if there are other words of equivalent import. Tliere-
fore, where the defendant made a note by which he promised
" to be accountable to A or order for £ 100, value received,"
this was held a good note within the statute. (/) So where the
defendant gave a note by which he acknowledged himself " to

be indebted to A in <£ , to be paid on demand, for value

received," this was held to be within the statute, the words
" to be paid " amounting to a promise to pay.(w/) So a direction
to A to " credit B or his order in cash " in a certain sum, has
been licld to be a bill of exchange ; the court saying " ' credit
in cash ' is equivalent to ' pay.' " (n)

A mere acknowledgment of a debt is held in England to be
no promissory note ; the common illustration of which is the

(/) Pi'poon V. Stafrg, 1 Nott & McC. U)2 ; KimbiiU v. Huntington, 10 Wend. G75.

((/) Ellis V. Mason, 7 Doul. P. C. 598.

(/() Green v. Davics, 4 B. & C. 23.i.

(/) Sliriveil V. Payne, 8 Dowl. P. C. 441.

( /) Cliadwifk r. Allen, 2 Stra. 705.

(il) Lovell V. Hill, 6 C. & P. 238.

,,?) Morris v. Lee, 2 Ld Raym. 1396. The court said: "By the receiving Jie value,
the defendant became a dci)tor ; and wlien lie promises to be acconntahlc for it to A, it
is the same thing as a promise to pay to A. And it is the stronger, becanse it is to bo
accountable to A or order, which is the proper expression used in such unites, and
mentioned in the act of Parliament, where it is intended the note should he indorsaltlo
or negotiable But it would be an odd construction to expound the wor<l arrountable,
to give an account, when there may be several indorsees." See Home v. Bedfearn, 4
Bing. N. C. 433 ; White v. North. 3 Kxch. 689 ; Shiivell v. Payne, 8 Dowl. P. C. 441 ;
Hitchcock V. Cloutier, 7 Vt. 22 ; Woodfolk v. Leslie, 2 Nott & McO. 585.

(hi) Casbornc i'. Dutton, Selw. N. P. (1 1th ed.), 401.

(;<) ICllison r. CoIIingridgc, 9 C. B. 570 ; Allen v. Sea, Fire, & Life Ass. Co., 9 C. B.
574. But in Woolley v Sergeant, 3 Halst. 262, it was held, that an order in writing,
directed to C, and requesting liim to credit B or bearer thirty dollars, was not a bUI
of exchange.

CII. n.] FORM OF PROMISSORY NOTES. 25

" I. 0. U. X 200." (o) We should suppose that there could be no
doubt of the correctness of this, on principle. Such an instru
ment, or any other form of a mere due bill without a promise,
would be evidence in an action of assumpsit suited to the case,
but could not, we think, be declared upon as a promissory note,
nor be held entitled to any of the peculiar privileges of these
instruments. Both from its name and its nature, we should
have said that the note must contain, and must express, the
promise of the debtor to pay the money ; and it is going- quite
far enough to say that the word " promise " need not be used if
there are other words of equivalent force and similar meaning,
the fair construction of whicli would make them one form of a
promise. Several American cases, however, hold any due bill
to bo a promissory note.{p) In England the question is more
im[)ortaut than here, for if an instrument be a promissory note
and have no stamp, it has there no validity whatever, while
here it will be valid and available either as a note or as evidence
of a debt ; and as the ditfcrence becomes in this way, in many
cases, more a matter of form with us than substance, this may
be a reason why our courts construe writings of this kind with
more laxity. But if the question arose on a negotiable instru-
ment, and related to rights or obligations springing from in-
dorsement, and which exist only in relation to this peculiar
instrument, it might be supposed that our courts would be
more cautious. If the word " payable " be inserted, it makes
a promissory note in England and in this country ; (q) and if the

(o) Fisher v. Leslie, 1 Esp. 426 ; Melanotte v. Teasilalo, 13 M. & W. 216 ; Israel v.
Israel, 1 Camp. 499 ; Chiklers v. Bouliiois, Dowl & K. N. P. 8. In Guy v. Harris,
Oliitty on Bills (9th cd ), 526, Lord Eldon is said to have ruled that such an instru-
ment was a promissory note, though not negotiable. " But it clearly is not such at
this day," says Mr. Byles, citing Tomkins v. Ashby, 6 B. & C. 541, 9 D. & R. 543,
Moody & M. 32. Byles on Bills (6th ed.), 10.

( p) Cummings v. Freeman, 2 Humph. 143 : Russell v. Whipple, 2 Cowcn, 536 ; Mar-
rigan v. Page, 4 Humph. 247 ; HaiTow v. Dugan, 6 Dana, 341 ; Fleming v. Burge, 6
Ala. 373 ; Finney v. Shirley, 7 Misso. 42 ; McGowen v. West, 7 Misso. 569 ; Kimball
V. Huntington, 10 Wend. 675; Johnson v. Johnson, Minor, 263; Lowe r. Murphy,
9 Ga. 338 ; Brewer v. Brewer, 7 Ga. 584. Sec contra, Read v. Wheeler, 2 Yerg. 50
In Franklin v. March, 6 N. H. 364, it was held, that an instrument in these words,
" Good to R C or order for thirty dollars, borrowed money," was a promissory note.

(q) Pepoon V. Stagg, 1 Nott & McC. 102 ; Mitchell v. Rome R. R. Co., 1 7 Ga. 574 ;
Kimball v. Huntington, 10 Wend. 675; Waithman v. Filsec, 1 Car. & K. 35 ; Cas-
borne v. Diu.'un, Selw. N. P. (1 1th ed.), 401. And see Brooks v. Elkins, 2 I\i. & W. 74.

A'OL. I 3

2b NOTES AND BILLS. . [CH. LL

due bill be payable to " A or order," or to him " or bearer," it
is a negotiable promissory note. If the principal purpose and
effect of the writing are to set forth an agreement or bargain
of sale, and the terms be stated, although the buyer expressly
promise therein to pay at a time certain the amount agreed on,
this is still only an agreement, and not a promissory note.(r)

An instrument under seal, though iu all other respects in the
form of a promissory note, is, according to the best authorities,
not negotiable, and possesses none of the qualities of negotiable
paper. (5)

There has recently been considerable discussion as to the na-
ture of the instrument, in common use among bankers, called a
certificate of deposit. It is usually in this form : " I hereby cer-
tify that Mr. A has deposited in Bank one thousand dollars,

payable twelve months from date, to his order, upon the return
of this certificate. (Signed) B, Cashier." We think this in-
strument possesses all the requisites of a negotiable promissory
note ; and that seems to be the prevailing opinion. (^)

The anomalous case, in which a promise 7iever to pay was held
to be a promise to pay, (w) cannot be considered as exhibiting
another form in which a valid note may be made, but only as an
instance of the court's disregard and rejection of a word Avhich
must have been inserted merely by mistake, or else with a fraud-
ulent purpose.

It is usual to write the sum in words in the body of the note,

(r) Ellis V. Ellis, Gow, 216. Tiic question in this case, however, arose ujion the
Stamp Act.

(s) Clark v. Farmers' Manuf. Co., 15 Wend. 256 ; Frcvall v. Fitch, 5 Whart. 325 ;
Hopkins v. Railroad Co., 3 Watts & S. 410 ; Force i\ Crai<,', 2 Ilalst. 272 ; I'arkcr v.
Kennedy, 1 Bay, 398 ; Parks v. Duke, 2 McCord, 380 ; Tucker v. En>,^lisli. 2 Speers,
673 ; Lewis v. Wilson, 5 Blaekf. 369 ; Sayre v. Lucas, 2 Stew. 259. But see, contra,
Porter?'. McCollum, 15 Ga. 528.

(t) Miller V. Austen, 13 How. 218; Lau;,'hlin v. Marsliall, 19 111 390; Carey v.
McDoujruld, 7 Ga. 84; Kilgorc i-. Bulklcy, 14 Conn. 362 ; Bank of Orleans r. Merrill,
2 Hill, 295 ; Wclton v. Adams, 4 Calif. 37 ; Johnson v. Barney, 1 Iowa, 531. But .see,
contra, Patterson v. Poindcxter, 6 Watts & S. 227 ; Charnley v. Dulles, 8 Watts & S.
353, 361. And sec Sibree v. Tripp, 15 M. & W. 23.

(u) Anon., cited in 2 Atk. 32. This case is stated by Lord /lardwirke, and said to
have been ruled by Lord Mucdesjidd on the Northern Circuit. In the commencement
of the note, the consideration wiis said to be " 20/. borrowed and i-eccived," and at the
end were the words, " which I promise never to pay." It was held that there was a
good fijundation for an assumpsit, upon the lending on one side and tlie borrowing on
the other, and that the words in the conclusion of the note would make no vaWation.

CH. n.] FORM OF PROMISSORY NOTES. 27

and also to put it in figures at the corner. If tliey differ, the
question may be whether it is an ambiguity, and then wliether
it is fatal to the note, or may be cured by evidence, or whether
it is no ambiguity because the written words prevail over the
figures. So far as we have authority, the last would be tlie rule ;
in the English case in which it was, with some difficulty, so de-
termined, the figures were for a larger sum, and the stamp was ap-
plicable to that sum.(i') In this country, where the figures could

(v) Saunderson v. Piper, 5 Bing. N. C. 425. This was an action on a bill of ex-
change, by indorsees against acceptors. The bill was expressed in figures to be drawn
for £245; in words, lor two hundred pounds, with a stamp applicable to the higher
amount: IMd, that evidence to show that the words " and fort ij-Jive" liad been omitted
by mistake was not admissible, but that the acceptance must be taken to be for £ 200
only. Tindal, C. J. said : " This is a case of ambi(juitus patens, and, according to the
rules of law, evidence to explain such an ambiguity is not admissible. Where there
is a doubt on the face of the instrument, the law admits no extrinsic evidence to ex-
plain it. Now, on the body of the bill in question, it appears to have been drawn for
two hundred pounds ; but in the margin, the figures express the sum of £ 245. If this

creates any ambiguity, it is one which arises on the face of the instrument The

evidence in question not being admissible, we cannot shake the rule of commercial
writers, that, where a difference appears between the figures and the words of the bill^
it is safer to attend to the words. If we take the authority of those writers where we
have none of our own, this is a good bill for the sum expressed in the body, and there-
fore I am of opinion that the plaintiff is entitled to judgment for £200." Bosanqnet,
J. : " The question is, whetiier this instrument is a bill for £ 245, or £ 200, or whether

it is altogether void It is true that there was abundant evidence to show that this

was intended as a bill for £ 245, if tliat evidence was admissible ; but the evidence wa3
not admissible, because this is a case of patent ambiguity, and our rules of evidence
exclude explanation where the ambiguity is patent. It is true, some foreign writers
have said that in such a case the drawee should wait for instructions ; and it would, no
doubt, be prudent he should do so ; that, however, cannot alter our rules of evidence.
But the same writers also lay it down, that in the Absence of instructions the words at
length, and not the figures, arc to determine the sum to be paid ; and we think that \a
the rule tliat should be followed. The argument that pressed me most is the rule of
fortius contra proferentem ; that an instrument must be taken most strongly against tha
party making it. But there is no case in which that principle lias been applied to an
instrument, the body of which expresses a clear amount, and the ambiguity arises from
a different amount expressed in the margin. Under such circumstances, the rule of law
as to evidence must prevail." Coltman, J. was of opinion, that the rule, fortius contra
proferentem, should prevail, and the bill be taken to be for £ 245. The commercial
writers, alluded to in the above opinions, are Marius and his followers. In Marius, p.
S3 (4th cd), the rule is thus stated : "A bill of exchange, though written in few words,
and contained in a small piece of paper, yet is of great weight and concernment in
point of trade between merchant and merchant, and therefore ought to be written very
plain and legible, and without any blots, or mending, or altering of any word thereof,
thj.t so there may not arise any doubt or scruple in the payment thereof; and there-
fore it is that usually merchants do write the sum that is to be paid as well in figures
as in wo!ds at length, as you may observe by the several forms of bills of exchange

28 NOTES AND BILLS. [CH. U.

not be aided in that way, it slionld be held with still stronger rea-
son, that the words control the figures, (i^) If the words are writ-
ten in the body of the note so obscurely that their meaning is
doubtful, the figures in the margin may be referred to as explan-
atory of the intention of the parties, (.-r) If the printed words
differ from the written words, then the latter will control, on the
ground that the printed words were intended to apply to many
cases, printed forms of instruments being always employed for
classes and quantities only, and not for a single case, and the
blank left to be filled in writing was left for the very purpose
that the instrument might be especially adapted to each particu-
lar case.(//) It has been held that the sum may be in figures only,

contained in this treatise ; and if it so fall out, that tiirough unadvisedncss, or error of
the pen, the figures of the sum, and the words at length of the sum, that is to be paid
upon any bill of exciiange, do not agree together, either that the figures do mention
more, and the words less, or that the figures do specify less, and the words at length
more, in either, or in any such like case, you ought to observe and follow tiie order of
the words mentioned at length, and not in figures, until further order be had concern-
ing the same, because a man is more apt to commit an en-or with his pen in writing a
figure than he is in writing of a word ; and also, because the figures at the top of the
bill do only, as it were, serve as the contents of the bill, and a brcviat tliereof, but the
words at length are in the body of the bill of exchange, and are the chief and principal
substance thereof, whereunto special regard ought to be had ; and, although it may so
fall out, that tlie sum mentioned in figures in the letter of advice and the sum men-
tioned in figures in the bill of exchange do agree, yet if the sum mentioned in words
at length in tlie same bill do disagree, you ought to follow the order mentioned in words
at length in the bill, and not the order in figures, for the reasons before alleged."

(«;) Payne v. Clark, 19 Misso. 152 ; Mcars v. Graham, 8 Blackf. 144. In Smith v.
Smith, 1 K. I. 398, it was held, that the figures in the margin of a bill of exchange are
merely a memorandum for convenience of reference, and form no part of tlie bill, and
an alteration in them, without the consent of the drawer, making tlieni conform with
the body of the instrument, does not vitiate the bill ; and where the marginal figures
differ from the body c' the I)ill, evidence is not admissible to sjhow that the l)ill was
negotiated for the value expressed by the marginal figiu-es, and not for the value ex-
pressed in the body of the bill. In Burnham v. Allen, " Gray, 496, it was field, that a
promissory note, expressed to be for " thee hundred dollars," and in figures in the
margin "$.300," was a good note for three hundred dollars, if the maker, when he
signed it, intended " thee " for three ; and whether such was his intention was a ques-
tion for the jury. In Norwich Bank v. Hyde, 13 Conn. 279, where a writing was

given, in the form of a note, promising to pay dollars, in the margin of which

was written S 200, it was held, in an action against the indorser alleging a promise to
pay two hundred dollars, ihat such writing was not admissible in support of the dec-
laration ; the ofiicc of the memorandum in the margin being to remove an ambiguity
in the Ixxly of the instrument, and not to snp])ly a blank.

(t) lliley V. Dickens, 19 111. 29.

(j/) Sec 2 Parsons on Cont., pp. 28, 29.

CH. II.J FORM OF PKOMISSORY NOTES. 29

and not in words. If so, this would certainly be one of those
irregularities which would subject the instrument to suspicion. (z)

In Louisiana, by statute, no bill, note, or other ol)ligation for
the payment of money, made within the State, is admissible as
evidence of a debt when the whole sum is expressed in figures,
unless accompanied by proof that it was given for the sum so
expressed. («) If, in a bill or note, the word " dollars " is omit-
ted, or in England the word " pounds," these words will never-
theless be supplied. (6)

The question, whether a certain instrument is a promissory
note or a bill of exchange, or either, at the election of the holder,
will be considered hereafter, when we come to speak of bills of
exchange, (c")

(z) Nugent v. Roland, 12 Mart. La. 659; Pilie v. MoIIcrc, 14 Mart. La. 666. This
point was raised, but not decided, in Gibson v. Irby, 17 Texas, 173.

(a) Rev. Stat. La , 18.56, p. 43. But fractional parts of a dollar may be in figures. Id.

(6) Thus, In rhipps v. Tanner, 5 C. &P. 488, it was held, that a bill of exchange for
twenty-Jive, seventeen shillings and three pence, was a bill of exchange for twenty-five
pounds, seventeen shillings, and three pence, and might be declared on as sueh ; Tin-
dal, C.J. saying: "It must mean pounds, and cannot mean anything else." So in
Booth V "Wallace, 2 Root, 247, it was held, that in a note for " thirty-two, twelve shil-
lings, and five pence lawful money," the word pounds is necessarily implied. So in
Northrop r. Sanborn, 22 Vt. 433, it was held, that an order drawn for " 37,89 " was not
void as being unintelligible ; but the court would intend that the figures were used, as
whole numbers and decimals, to express the currency of the United States. And see
Murrill v. Handy, 17 Misso. 406; Sweetser v. French, 13 Met. 262; Rex r. Elliot,
1 Leach, C. C. 175; M'Coy v. Gilmore, 7 Ohio, 268; Coolbroth v Purinton, 29
Maine, 469.

»•

30 NOTES AND BILLS. [CH. m.

CHAPTER III.

OF THE ESSENTIAL ELEMENTS OF A NEGOTIABLE PROMISSORY

NOTE.

To learn what qualities are essential to a negotiable promis-
sory note, we must bear in mind the purpose of the note, and of
the law in relation to it. This is simply that the note may
represent money, and do all the work of money in business
transactions. For this purpose, the first requisite, that, indeed,
which includes all the rest, is certainty. This means certainty,
first, as to the persons who shall receive the money by which the
note is to be paid and replaced when this representation ceases.
Second, as to the person or persons who are to make this pay-
ment, and the order and conditions of their liability. Third, as
to the amount to be paid. Fourth, as to the time when the
payment is to be made. Fifth, as to the fact itself of the pay-
ment. It will be seen that the law endeavors to enforce, define,
and protect all of these certainties as far as possible. Not,
however, in such an exact and technical way as would only
embarrass the transaction of business ; but substantially, and
in a perfectly practical way.

SECTION I.

OF CERTAINTY AS TO THE PAYEE.

As to the person who is to receive the money, this may be
either the original payee, or one who is made a subsequent
payee by indorsement ; of this indorsee wo will treat subse-
quently, and now only of tlic original payee. This may be some
one or more persons named, or the note may be made payable
to bearer, and tlicn the ])ayce will be any person who comes
into lawful possession of the note and presents it for payment.
Such a note is ncgotial)le, because it is transferable by delivery,

CH III.] CERTAINTY AS TO THE PAYEE. 31

and the holder may sue on it in his own name ; but it is not
strictly negotiable in the full sense of the word, because it is
scarcely capable of regular indorsement, and that part of the
law of these instruments which relates to indorsement applies to
it very imperfectly. If it be written, " Due the bearer," (a cer-
tain sum,) " which I promise to pay A or order," this is payable,
not to bearer, but only to A or his order. (d)

If the note be not payable to bearer, but to a specific payee,
the payee must be distinctly pointed out ; though he need not be
expressly named as such. Indeed, the payee is made the prom-
isee by construction of law only, in most cases. To make him
so, formally, the note should run, " I promise A to pay him or
order" ; and notes are sometimes so written, and always so de-
scribed, when set forth in a declaration ; but far more frequently
they are written, " I promise to pay A or order," and the law
construes this to mean that the promise was made to A. By an
extension of the same principle of construction, where a receipt
for money, by reason of a promise of repayment, is held to be a
promissory note, as, " Received of A one hundred dollars, which I
promise to pay on demand,"(e) the law construes the promise as
made to A, and as being a promise to pay him ; thus making him
both promisee and payee. So if the instrument, though not
naming any certain payee on its face, furnishes the means by
which the payee can be certainly ascertained, it is sufficient. Id
certmn est., quod cerium reddi potest. Therefore, if a note be
made payable to " the administrators of the estate of A," it will be
good.(/) On the same principle, an instrument payable " to the

(d) Cock V. rello\v.s, 1 Johns. 143. The words of the note were, " Due llie bearer
hereof £3, 18, 10, which I promise to pay to Abraham Thompson or order, on de-
mand." And the court said : " The word bearer has reference to Thompson as the
payee, and as the promise is expressly to pay to him or order, another person could
not maintain an action on the note without his indorsement."

(e) Green v. Davies, 4 B. & C. 235. Bayley, J. said : " No particular form of words
is necessary to constitute a note, and Cliadwick v. Allen, 2 Stra. 706, is in point to show
that it is not necessary to name the payee more explicitly than this note does ; the sub-
stance of the note there was, '.£15, 5s., balance due to Sir Andrew Chadwick, I am
still indebted, and do promise to pay.' Whom he was to pay was not in terms stated,
but as no other payee was named, who, but Sir A. Chadwick, could be the object of
his promise ? So here, as the money was received from Boaz, he alone could be the
person to whom the money was to be paid back." And see Ashby v. Ashby, 3 Moore
& P. 186.

(/) Adams v. King, 16 111. 169 ; Moody i-. Threlkeld, 13 Ga. 55. In Bacon v. Fitch,

32 NOTES AND BILLS. [CH. IH.

trustees acting under the will of A," is a promissory note.(^'-) So
a plaintitf suing on a promissory note wliich purports to be paya-
ble to a person of a diiferent name may show by parol evidence
that he was the person intended. (/t) And it has been held, that
if a bill be drawn payable to a fictitious payee, and indorsed in
the name of such payee, and be afterwards accepted with a knowl-
edge that the payee is fictitious, such bill may be treated, in the
hands of a bona fide holder, as a bill payable to bearer. (i) And

1 Root, 181, a note payable " to the heirs of A," who was then alive, was held suffi
cient.

{(]) l^rcKcinson v. Harper, 2 Cromp. & M. 322.

(/() Willis V Barrett, 2 Stark. 29; Hall v. Tufts, 18 Pick. 455 ; Jacobs v. Benson
39 Maine, 1.32.

((■) Minet v. Gibson, 3 T. R. 481, 1 H. Bl. 569 ; Collis v. Emett, 1 H. Bl. 312 ; Vero
I'. Lewis, 3 T. R. 182. In a note to Bennett v. Farnell, 1 Camp. 130, the learned re-
porter has given the following account of these cases : " Almost all the modern cases
upon tills question arose out of the bankniptcy of Livesay & Co. and Gibson & Co.,
who negotiated l)ills with fictitious names upon them to the amount of nearly a million
sterling a year. The first case was Tatlock r. Harris, 3 T. R. 174, in which the Court
of King's Hcnch held, that the bona fide holder for a valuable consideration of a bill
drawn payable to a fictitious person, and indorsed in that name by the drawer, might
recover the amount of it in an action against the acceptor, for money paid or money
had and received, upon the idea that there was an appropriation of so much money to
be jiaid to the person who should become the holder of the bill. In Vere v. Lewis, 3
T. R. 182, decided the same day, the court held, there was no occasion to prove that
the defendant had received any value for the bill ; as the mere circumstance of his
acceptance was sufficient evidence of this ; and three of the judges tliouglit the plain-
tiff might recover on a count which stated that tlie bill was drawn jiayable to bearer.
Minet v. Gibson, 3 T. R. 481, put this point directly in issue, and tlie unanimous
opinion of the court was, that, where the circumstance of the payee being a fictitious
person is known to the acceptor, the bill is in eft'ect payable to bearer. Soon after, the
Court of Common Pleas laid down the same doctrine in Collis v. Emett, 1 H Bl. 313.
This decision was acquiesced in ; but Minet i'. Gibson was carried up to the House of
Lords, 1 H. Bl. 569. The opinions of the judges being tlien taken, Efirc, C. B. (p.
598), and Ilfdtfi, J. (p. 619), were for reversing the judgment of the court below, and
Lord Tliurlow, C. coincided with them (p. 625) ; but the other judges thinking otlier-
wise, judgment was affirmed. 2 Bro. P. C, 2d cd., 48. The last case upon the .•subject
re])ortcd is Gibson v. Hunter, 2 II. Bl. 187, 288, which came before the House of Lords
ujion a demurrer to evidence; and in which it was held, tliat, in an action on a bill of
this sort against the acceptor to show that he was aware of the payee being fictitious,
cvi<lencc is admissible of the circumstances under wliich he had accepted other bills
payable to fictitious persons. Vide Tuft's case, Leacli, Cro. Law, 206." It may bo
added, that the rule established by these cases is now of very little practical value ;
and if the question were still open, its correctness might be gravely doubted. Sec the
dissenting opinions of Eijre, C. J. and Ilcat/i, J. See also Bennett v. Farnell, 1 Camp.
1.30, ISOr. But see Hunter »;. lilodget, 2 Yeatcs, 480 ; Foster v. Shutluck, 2 N. H.
446 ; Piefs v. Johnson, 3 Hill, 112 ; Famsworth v. Drake, 11 Ind. 101 ; in wliich the
English rule was adopted. By statute in New York promissory notes made payaolc to

OH. m.] CEIMAINTY AS TO THE I'AYKE. 33

when a note was made payal)lo to the order of a real person, and
his indorscnKMit was forged, it was held that the maker was
estopped from tlenying the vali(Hty of the note in the; hands of a
bona fide holder. (/) So the name of the payee may he left blank,
and this will authorize any bona ftde holder to insert his own
namc.(/t) I>ut, with these exceptions, the rule recjuiring the j)ayee
to be distinctly named is very strictly adhered to. It is expressly
held, that if no one be designated as payee, either by name or
as bearer, the instrument is not a promissory notc.(/) And if
the promise is in the alternative, as to |)ay A or B, it is insuffi-

the order of the maker thereof, or to the order of a fictitious person if negotiated by
the maker, liavc tlie same effect, as against the maker and all persons having knowledgo
of the facts, as if payable to bearer. Stevens v. Strang, 2 Sandf. 138. In Davega v
Moore, 3 McCord, 482, it was held, that a note payable " to order" only, without men-
tioning the name of any payee, was to be considered as payable to bearer in favor of a
bona Jiik holder. See Ellis v. Wheeler, 3 Pick. 18 ; Ball v. Allen, 1.5 Mass. 433. In
Willets i\ Phoenix Bank, 2 Duer, 121, it was held, that a bank-check, payable to tho
order of bills payable, as it could not jiass by indorsement, was, in judgment of law,
payable to bearer. If the acceptor of a bill payable to a fictitious person be iynorant of
the circumstance that the payee is fictitious, he is not liable, even to a bona fide holder.
Bennett r. Farnell, 1 Camp. 130, 180 c. So if the holder received the bill with a
hiowle(h/e of this circumstance, he cannot recover. Hunter v- Jeffery, Peake's Add.
Cas. 146.

(,/) Meacher r. Fort, 3 Hill, S. Car. 227.

{k) Attwood V. Griffin, Ryan & M. 42.5 ; Cruchley i;. Clarance, 2 Maule & S. 90 ;
Crutchly v. Mann, 5 Taunt. 529 ; Greenhow v. Boyle, 7 Blackf. 56. But until the
blank is filled up, the instrument is invalid. Seay v. Bank of Tennessee, 3 Sneed, 558.

(I) Thus, in Brown v. Gilman, 13 Mass. 1 58, an instrument in these words, " Good for
one hundred and twenty-six dollars on demand," and signed, was held not to be a prom-
issory note. Sec Curtis v. Rickards, 1 Man. & G. 4G. And in Douglass v. Wilkeson, 6
Wend 637, it was held, that an indorsement on a note in these words, " Mr Olcott, pay
on within $750," was not a bill of exchange, draft, or check. So in Gibson ;;. Minet,
1 H. Bl. 569, 608, Eyre, C. J. said : '• If I put in writing these words, ' I promise to pay
£ 500 on demand, value received,' without saying to whom, it is waste paper. If I
direct another to pay ^500 at some day after date for value received, and not say to
whom, it is waste paper." In Mayo v. Chcnowetli, Breese, 155, the instrument was in
this form : " This shall oblige me to pay thirty-five dollars on a judgment in the Inmds
of Lewis Murphy, Esq., against Mark A. Sanders, in favor of John Chenoweth, with
interest from this date till paid." (Signed,) "Jonathan Mayo " Held, that it was not
a promissory note. And see Matthews v. Redwine, 23 Missis. 233 ; Enthoven v. Hoyle,
13 C. B. 373. In Prewitt v. Chapman, 6 Ala. 86, it was held that an instrument, pur-
porting to be a bill of exchange, but which did not direct to whom the money was pay-
able, might be the foundation of a suit, in the name of the person from whom the con-
sideration moved, and to whom it was delivered by the drawer; but an action could not
be maintained thereon by a third person, as bearer. In United States v. White, 2 Hill,
:)9, it was held, that a promissory note made payable to the order of the person icho should
thereafter indorse the same was valid and negotiable.

Vol. L— C

34 NOTES AND BILLS. [CH. IE.

cient. {in) So an infetniment payable "to the estate of M. L., de-
ceased," is not a promissory note.(/i) So an instrument contain-
ing a promise to pay a certain sum therein mentioned '•• to the
secretary, for the time being, of the Indian, Sfc. Assurance Soci-
ety, or his order," has been held not to be a promissory note.(o)

(m) Musselman v. Oakcs, 19 lU. 81 ; Blanckenhagen v. Blundell, 2 B. & Aid. 417.
This was an action on a note whereby the maker promised to pay to A or to B and
C a sum therein specified, value received ; and it was held not to be a promissory note
within the meaning of the statute of Anne. Campbell, arguendo^ said : " This is a valid
note within the statute of Anne, as between the original parties, althongli, perhaps, it
may not be negotiable. It is not payable upon a contingency ; for a note payable to
two partners, which in effect is payable to one or to the other, is equally so. So also,
foreign bills of exchange, drawn in sets, may equally be said to be payable upon con-
tingencies ; for the direction is to pay this my first bill of exchange, the second and
third not being paid ; or the second, the first and third not being paid ; wliich is in ef-
fect directing the bill to be paid to the indorsee who may hold the first, or to the in-
dorsee who may hold the second." But Abbott, C. J. said : " I have no doubt that
this instrument, In the form in which it is declared on, is not a promissory note within
the statute of Anne ; for if a note is made payable to one or other of two persons, it is
payable to either of them only on the contingency of its not having been paid to the
otiicr, and is not a good promissory note within the statute." Bdi/ley, J. : " If there
had been any community of interests stated between the payees so as in any respect to
identify Darner and Blanckenhagen, it is possible that an action might have been main-
tained on this note, but in the way in which the declaration has been framed, stating
this as a note payable to one or the other, I am very clearly of ojjinion that it is not that
descrijjtion of note which the statute of Anne contemplated." Ilolroijd, J. : " This note
docs not come within the description of notes contemplated by the statute of Anne.
It is, in fact, a promise to pay A, if the maker does not pay to B and C. It is there-
fore a conditional promise, and, consequently, not within the statute." The same
point was decided in Walrad v. Petrie, 4 Wend. 575. But Mara/, J. there said : " On
the ])art of the plaintiff it is contended that the contingency is no greater than it would
be if the word ' and ' was substituted for ' or,' because, had the note been payable to
Walrad and Bowman, payment to either would have been a satisfaction of the note ; we
are, therefore, asked to consider the word 'or' of the same effect as the word ' and.'
I should be inclined to accord in the views of the plaintiff, if I were not reluctant to es-
tablish a different rule here from tliat whidi seems to i)rcvail in England on this jioint.
It is important to our commercial interests, considering the intercourse existing between
this country and England, that the statutes wiiich are alike in both countries as to nego-
tiable pa|)er should receive the same construction, and be applied in the same manner."
See Samuels v. Evans, 1 McLean, 47.3 ; S])aulding v. Evans, 2 McLean, 139.
(n) Lyon v. Marshall, 11 Barb. 241 ; Tittle v. Thomas, 30 Missis. 122.
(o) Storm V. Stirling, 3 Ellis & B. 832. Lord Cam}MI, in delivering the judgment
of the court in this case, said: " The nature and every definition which we find in the
books of a promissory note siiow that it must contain an ex])ress promise to pay to a
person tlicntin named or designated, or to his order, or to bearer. If the person to
whom or to whose order it is to be paid is uncertain, and it depends on a contingency
to whom, or to whose order, payment is to be made, it is not a promissory note, unless
it ran be treated ns payaltle to bearer. It was tnged, on behalf of the ])iaintiff, that we
might treat tliis as a note made payable to the plaintifi", who at tiie date of the doca-

CH. ni.] CERTAINTY AS TO THE PAYER. 35

But if it had been " to the noiv secretary of the Indian, Sfc.
Assurance Sodety, or his order," it would, as we have seen,
have been sufficient. (/?) If a note is payable to A, and there
are two persons of that name, father and son, the note would
be prima facie evidence of a promise to the father. But the son
may show that he is in possession of the note, and is the person
who authorized the bringing of the action. ((?)

SECTION II.

OF CERTAINTY AS TO THE PAYER.

Certainty is required as to the persons who are to make the
payment, and the order and conditions of their liability. In the
first place, the maker, who signs the note and is the promisor, is
bound by his promise to pay the note. This signature must be

ment was the secretary of the society, by his description as such secretary

There is no doubt, upon the authorities, that it is quite sufficient to make a note by a
description or designatio personcB of tliis kind ; but we do not think that we can put the
above construction on the document now before us. The use of the words ' for the
time being,' in the first instance, the repetition of them afterwards, and the wliole form
and scope of the instrument, satisfy us that the payment was to be made to the indi-
vidual who, at the time of the instrument f;\lling due. should fill the situation of secre-
tary of the company, and not to the plaintiff^, unless he happened to be the secretary at
that time. It was, we think, clearly intended as a floating promise, the performance of
which was to be made to the person being secretary when the document became due.
The other construction would in effect be to hold that the words ' the secretary for the
lime being ' meant the now secretary ; but we think that the words were used for the

very purpose of excluding that construction It was suggested also, in the

argument, that if there were no payee who could sue, the note might be treated as pay-
able to bearer. But we think that in so holding we should give a meaning to the note
contrary to the clearly expressed intention of the maker. This is not a case of fraud,
or of a fictitious payee ; but the defect is, that it is a promise to pay some person to be
ascertained ex post facto ; and we know no autliority to show that under such circum-
stances we can hold this instrument to be a note payable to bearer, because, though
valid, perhaps, as an agreement, it cannot be enforced as a promissory note. This
promise is to pay to, or to the order of, an uncertain person. But if founded on good
consideration, it may probably give rights, legal or equitable, to the society. But we
think that we should be making a new instrument if we were to hold it a promissory
note payable to bearer ; and the case does not fall within any of the decisions cited on
this branch of the argument."

(p) Per Lord Campbell, in Storm v. Stirling, supra. And see Robertson v. Sheward,
I Man. & G. 511 ; Davis v. Garr, 2 Scld. 124 ; Rex v. Box, 6 Taunt. 325.

(g) Sweeting v. Fowler, 1 Stark. 106.

36 NOTES AND BILLS. [CH. m.

unambiguous and explicit, so as to leave no doubt of the per-
son intended to be designated ; because it is obvious that any
doubt on this subject would impair, if it did not destroy, the
utility of the document as an instrument of business ; (r) and
therefore it is, that we doubt whether courts should permit the
signature of a negotiable note to be made merely by initials, or
to be inserted in the body, (5) or at the beginning, or in the mar-
gin of the note, or elsewhere than at its close, which is the usual
and proper place. (^)

The signature should be in the handwriting of the maker, un-
less made by his agent. Then this agency should be expressed ;
and the proper form of such signature is, "A, by B his agent"
or " attorney." But if the signature were " B for A," this inac-
curacy of form would not make it B's note, or prevent it from
being A's note, if the signature were actually authorized, and
the note were in all other respects regular. (?<)

As a note, especially a promissory negotiable note, is not strictly
a specialty, although formerly it was so regarded in one or two
cases, the authority to make or sign or deliver it need not be un-
der seal, nor even in writing. And if the note purports to be
made by A by his agent B, and B had no authority, yet if A
should afterwards adopt and ratify this signature, it would be
effectual. If, however, only B's name was there, and there was
neither expression nor intimation of agency, then the established
rule that there can be no ratification of an act by an undisclosed
principal, unless the act itself purported to be the act of an
agent, would prevent A from making it by ratification his note.
But he miglit, undoubtedly, guarantee it, or become surety for
the payment, or assume its oljligations in any other way he saw
fit to do. In other words, if B makes the note as his own note,
it can never become the note of any other maker ; but if he
makes the note as agent of A, although he has no authority, A
can make the note his own by ratification.

If the signature be in the alternative, as if the note be signed

(r) In Sanders t;. Anderson, 21 Misso. 402, it was held, that a note signed " Steam-
boat Ben Lee and owners " was sufficient.

(.s) See supra, p. 2.3, note c.

(/) It has been held, liowcver, that a signature by initials is sufficient. Merchants'
Bank v. Spiccr, G Wend. 443 ; Palmer v. Stephens, 1 Denio 471

(u) See post, ch. 5, ^ 4.

CH. III.] CERTAINTY AS TO THE AMOUNT. 37

" A or B," \VG should say it was not a sufficient signature to make
a good promissory note against any person. In one case, a note
written, "I, A, promise," <fec., signed, "A or else B," was re-
garded as tlie note of A, signed by B as surety ; probably on
account of its peculiar phraseology. (y)

If the character in which a person writes his name on a bill or
note is obvious and certain, it does not seem to be material on
what part of the paper the signature is written. (i«7)

SECTION III.

OF CERTAINTY AS TO THE AMOUNT.

There should be entire certainty and precision as to the
amount to be paid. The reason of this is especially obvious ;
for if the note is to represent money effectually, there must be
no chance of mistake as to the amount of money of which it
thus takes the place and performs the office. On this point,
therefore, the cases are quite stringent. The sum must be stated
definitely, and must not even be connected with any indefinite or
uncertain sum, nor are we aware of any trustworthy cases in
which the rule Id certum est, quod certum reddi potest, is per-
mitted to supply the want of an express certainty on this point,
as it seems to be in relation to some other of the certainties re-
quired in promissory notes. Thus, if the promise be to pay a cer-
tain sum, and also " all fines according to rule,"(.x') or a certain

(y) Ferris v. Bond, 4 B. & Aid. 679. The note was in these words : " I, John Cor-
ner, promise to pay," &c. (Signed,) " John Corner, or else Henry Bond." The action
was against Bond ; and the court said : " This is not a promissory note by this defend-
ant within the statute of Anne. It operates differently as to the two parties. It is an
absolute undertaking on the part of Corner to pay, and it is conditional only on the part
of the defendant, for he undertakes to pay only in the event of Corner's not paying."

(«;) Clason v. Bailey, 14 Johns. 484 ; Hunt v. Adams, 5 Mass. 358 ; Carver c. War-
ren, id. 545 ; Saunderson v. Jackson, 2 B. & P. 238 ; Knight v. Crockford, I Esp. 190.

{x) Ayrcy v. Fearnsides, 4 M. & W. 168. It was contended for the plaintiff in this
case, that the words " and all fines according to rule" were altogether insensible, and
might be rejected as surplusage. But Parke, B. said : " This instrument being de-
clared on as a promissory note, the question is, whether the words 'and all fines
according to rule' can be rejected as being altogether insensible, and, therefore, mere
surplusage ; and I think they cannot. It is quite possible that they have a meaning,
*nd may import that certain pecuniary fines and forfeitures are to be jiaid by the defend-

VOL. I. 4

38 NOTES AND BILLS. ^ [CH. IH.

sum, and also " all other sums which may be due,"(y/) or a cer-
tain sum with interest, and also to pay " the demands of the sick
club at, &c., in part of interest,"(2) or a certain sum, " the cur-
rent rate of exchange to be added," (a) or a certain sum, de-
ducting what interest or money "A may owe the maker,"(&) or
" deducting all advances and expenses,"(c) or a certain sum,
"the same to go as a set-off," &c.{d) In neither of these cases
can the instrument be considered as a valid promissory note,
even for the specific sum which the maker promises to pay.

So a direction to pay to the order of A " whatever sum you
may collect for me of C,"(e) or "the proceeds of a shipment of
goods, value about £ 2,000, consigned by me to you," is not a
bill of exchange. (/)

SECTION lY.

OF CERTAINTY AS TO THE TIME OF PAYMENT.

The time when the money is to be paid is also to be certain.
Here, however, the rule that what can be made certain is certain,
is permitted to operate. Thus, if payable on demand, no one
can say when the demand will be made, but when it is made the
note becomes at once certainly due. If payable " when demand-
ed," this, though an unusual phrase, means the same thing ; so
that the statute of limitations begins with such a note on the day
of the date. (if) If payable "on demand with interest after six
months," this is held to mean that the demand may be immedi-

ants ; and if so, tliis is certainly no promissory note within tlie statute, but is a specific
agreement to do ot'rtain things, the consideration for doing which not being stated, tho
declaration is clearly bad."

{y) Smith v. Nightingale, 2 Stark. 375.

(2) Bolton V. Dugdalc, 4 B. & Ad. CI 9. And see Leeds r. Lancashire, 2 Camp.
205 ; Davies v. Wilkinson, 10 A. & E. 98.

(a) riiiladclphia Bank v. Newkirk, 2 Miles, 442.

(6) Barlow v. Broadhurst, 4 J. B. Moore, 471. Sec Kalfus r. Watts, Litt. Sel Cas.
197.

(r) Cusliman v. Ilaynes, 20 Pick. 132.

(d) Clarke v. IVrcival, 2 B. & Ad. 660.

(e) Legro v. Stajilcs, 16 Maine, 252.
(/) Jones V. Siiiip>;i)n, 2 B. & C 318.
(y) Kingsbury v. Butler, 4 Vt. 458.

CII. III.] CERTAINTY AS TO THE TIJIE OF PAYMENT. 39

ate, but that the interest will not begin unless the note lies \m-
paid six months, and not that the demand must be deferred until
after six months. (/<) But if payable with interest twelve months
after notice, this means payable on demand at any time after
twelve months have elapsed from the notice, and is sufficiently
definite. (i) And in one case, where the note was written " on de-
mand with interest after four months," and the words " on de-
mand " had been partially erased, but could still be read, it was
held to be payable in four months.(j) If payable "when I shall
marry," or in so many days " after I shall marry," this is not suf-
ficiently certain, because the promisor may never marry at all.(/k:)
So if payable when certain property or goods are sold ; (/) or " when
my circumstances will admit without detriment to myself or fam-
ily" ; (in) or " thirty days after the arrival of a certain ship" ; (n)
or "when in funds,"(o) it is not sufficient.- So if payable
in instalments, no time being stipulated for the payment of the
instalments, it is not a promissory note.(/>) If payable " when A
shall come of age," this alone would not be enough, because he
might die a minor ; (^7) but if, in addition to this, the day is speci-
fied on which he will be of age, this is held to be good, because
the note will be payable when the day arrives, though A should
die before the day.(r) So if payable within a limited time after a

(k) Loring v. Gurncy, 5 Pick. 15.

(i) Clayton v. Goslinj?, 5 B. & C. 360.

( /) Hobart v. Dodge, 1 Fairf. 156. In Conner v. Routh, 7 How. Miss. 176, it was
held, that a note payable twcnty-foiir after date was not void for uncertainty, nor a noto
on demand; hut the liohler might insert the time intended.

(/.) Beardeslcy f. Baldwin, 2 Stra. 1151 ; Pearson v. Garrett, 4 Mod. 242, Comb. 227.

(/) Do Forest v. Frary, 6 Cowen, 151 ; Mill ('. Halford, 2 B. & P. 413. But see
Ubsdell v. Cunningham, 22 Misso. 124.

(m) Km parte Tootcll, 4 Ves. 372 ; Salinas v. Wrigbt, H Texas, 572.

(h) Palmer v. Pratt, 2 Bing. 185.

(0) Harrell v. Marston, 7 Bob. La. 34

{])) Motfat V. Edwards, Car. & M. 16.

(q) Thus, in Kolley j;. Hemmingway, 13 111. 604, it Avas held, that a note pay.able to
a person " when he is twenty-one years old," is not a promissory note. Treat, C. J.
said : " The payment was to he made when the payee should attain his majority, — an
event that might or might not take place. The contingency might never happen, and,
jlicrefore, the money was not certainly and at all events payable. The instrument
lacked one of the essential ingredients of a promissory note, and consequentlv was not
negotiable under the statute The fact that the payee lived till he was twenty -one
years of age makes no difference. It was not a promissory note when made, and it
could not become such by matter ex post facto."

(r) Goss V. Nelson, 1 Burr. 226.

40 NOTES AND BILLS. [CH. IH.

mail's death, this is held to be sufficient, because an event must oc-
cur which will make this definite ; (s) and if the day of payment
must come, it has been said that its distance is not material ; {t)
but this dictum must be received with much qualification. It
has also been held, but as we think on insufficient grounds, that
if payable a definite time after money which is due from the
government shall be paid, this is certain enough, because it is
certain tluit the government or nation will pay their debts. (/^) It
has also been held, where a negotiable note which was indorsed
and sued by the indorsee was made payable " by the 20th of
May, or when he completes the building according to contract,"
that this was a good note, because " payable absolutely at a day
certain." (y) The reasons for this decision are not given, and it is

(s) Cooke V. Colehan, 2 Stra. 1217, Willes, 393.

(t) In Colciian v. 'Cookc, Willes, 393, 396, Willes, C. J. said : "I put a question to
the counsel, whether there is any limited time mentioned in any of the hooks beyond
which if bills of exchange are made payable they are not good, and it was agreed by
the counsel that they could find no such rule, and I am sure I can find none. But if a
bill of exchange be made payable at never so distant a day, if it be a day that must
come, it is no objection to the bill. There is but one passage in the books wliercin any
notion to the contrary is so much as hinted at ; and that is in Scaccliius de Commerciis,
where it is said that it had been formerly an objection against a bill of exchange, as
contrary to the nature of it, that it was made payable at the end of seven months ; but
by his making use of the word 'formerly,' it is jjlain that in his opinion the law was
then held to be otherwise."

(«) Andrews v. Franklin. I Stra. 24 ; Evans i;. Underwood, 1 Wilson, 262.

(y) Stevens v. Blunt, 7 Mass. 240 So in Goodloe v. Taylor, 3 Hawks, 4.58, where
a note was drawn as follows: "'Against the 2.')th of December, 1819, or when the
house John Mayfield has undertaken to build for me is completed, I promise to pay,"
&c., it was held, that the parties, by inserting a specific date of payment, had made it
payable at all events, whether the house was com])letcd or not; and that consequently
the note was negotiable. In Cota i'. Buck, 7 Met. 588, the instrument was in this
form : " For value received I promise to pay J. P. or bearer $.570, it being for property
I purchased of him in value at this date, as being i)ayabic as soon as can be realized of
the aliove amount for the said pi-opcrty I have this day jjurcliascd of said P., which is
to be paid in the course of the season now coming." Held, that it was a negotiable
promissory note. Sluuv, C. J. said : " This note, we think, was ))ayal)le by the prom-
isor at all events, and within a certain limited time. The note is obscurely written
and ungramniatical. But we think the meaning was this ; that the signer, for value
received in the jmrchase of property, ])romised to pay Pero or bearer the sum named
as soon as the termination of tlie conung season, anil sooner if the amount could bo
sooner rculi/cd out of the fund. Smh icfcrence to the sale of the property was not to
fix the fund fnjin which it was to be p;iid, but the time of payment. The undertaking
to pay was absitbite, and did not depend on the fund So as to the lime, whatever
time may be un<lerstood as the ' coming season '; whetlier harvest lime or the end of
the year, it must come by mere lapse of time, and that must be the ultimate limit of
the time if payment." But in Alexander v. Thomas, IG Q. D 333, it was field, that

CH. III.] CERTAINTY AS TO THE TIME OF PAYMENT. 41

not easy to discover them, unless the note was read as a {iromise
to pay on the 20th of May at all events, and sooner if the build-
ing was finished sooner. It has been held that a promise in writ
ing to pay A a certain sum, " in such manner and proportions,
and at such time and place, as he shall, from time to time, re-
quire," is a promissory note.{iv)

In general, it is not essential to a note that it should be dat-
ed ; (.?;) and if there be no date, it will be considered as dated at
the time it was made.(y) If it be dated, the date will be prima
facie evidence of the time when the note was made,(c) but not
conclusive. (rt) So a note may be dated forward or antedated. (6)

an order for a sum " payable ninety days after sight, or when realized," is not a bill of
exchange, as the latter alternative makes the sum payable on a contingency. For the
plaintiff it was said : " The meaning of the bill of exchange as described in the declara-
tion is, that it is to be paid ninety days after sight at all events, or sooner if the drawee
is in funds before that period." Lord Campbell: "Even on this construction it would
be uncertain wiicther it would be payable at all within the ninety days, and if payable
within that time, on what particular day. it would be so payable." And afterwards his
Lordshi]), in delivering his judgment, said: "If we could reject the words 'or when
realized ' as insensible, the hill would certainly be unexceptionable. But a reasonable
meaning has already been ascribed to them, viz. ' or when you are in funds for the
purpose.' I do not see why this alternative is to be taken as limited to the term before
the expiration of the ninety days rather than after. I should say the meaning is, that
the bill is to be paid at the end of ninety days if the drawee should be then in funds,
if not, that it shall bo payable afterwards. Even, however, if the other is the right
meaning, nameh', that the bill is payable sooner if the drawee should be sooner in
funds, and' if not, at the end of ninety days at all events, I think this would not l)e a
good bill ; for the holder would have to watch and ascertain the precise time when the
bill should become payable, and, if he failed in doing this and in duly j)resenting it,
tiie drawer would be discharged. I am of opinion that this is not a good bill of ex-
change, drawn according to the custom of merchants, so as to relieve the i)laintiff from
the necessity of stnting a consideration for it." And see Hensehel v. Mahler, 3 Denio,
428.

iw) Goslien, &c. Turnp. Co. v. Ilurtin, •) Johns. 217 ; Washington County Mut. Ins.
Co. V Miller, 26 Vt. 77.

(.r) See Michigan Ins. Co. v. Leavenworth, 30 Vt. II.

{//) I)e la Courtier v. Bellamy, 2 Show. 422 ; Hague v. French, 3 B. & P. 1 73 ; Giles
y Bourne, 6 Maule & S. 73

(s) Anderson v. Weston, 6 Bing. N. C. 296 ; Emery v. Vinall, 26 Maine, 295 ; Tay-
lor V. Kinloch, 1 Stark. 17.5 ; Obi)ard v. Betliam, Moody & M. 483 ; Smith v. Battens,
1 Moody & R. 341. But sec Cowie v. Harris, Moody & M. 141 ; Rose v. Rowcroft,
4 Camp. 24.5.

(a) Dean v. De Lezardi, 24 Missis. 424 ; Aldridge v. Branch Bank, 17 Ala. 45. But
the maker, it seems, will not be allowed to contradict the date of the note, to the preju-
dice of a bona fide holder. Huston v. Young, 33 Maine, 85.

(b) Gray v. Wood, 2 Harris & J. 328 ; Richter v. Selin, 8 S. & R. 425 ; Pasmore v
North, 13 East, 517 The case of Serlc v. Norton, 9 M. & W. 309, is entirely consistent

42 NOTES AND BILLS. [CIL HI.

If dated forward, and any of the parties die before the day comes,
such death will not affect the rights of a bona fide holder, (c)

SECTION V.

OF CERTAINTY AS TO THE FACT OF PAYMENT.

The necessity of this certainty, which is perhaps the most
important of all, is usually expressed by the rule, that the prom-
ise must not be on a contingency. The reason of this is very
apparent. The paper is intended, if negotiable, to circulate in
business as money ; and this on the ground that on a certain day
it will become money. It is perfectly obvious, therefore, that all
chances of a failure in this respect must be avoided, against
which it is possible to guard. The possibility of the insolvency
of the promisor, or his inability to pay when the time of payment
comes, is a risk that must always be borne ; but it would be most
unwise to add to this other contingencies ; for if these could be
estimated between the original parties, a subsequent holder of
the paper, or one to whom it was offered in the course of busi-
ness, might be wholly vmable to judge of the probabilities of the
contingency, and estimate the risk accordingly.

Thus, if the money be payable " provided J. S. shall leave me
sufficient, or I shall otherwise be able to pay it," this is a fatal
contingency. (c?) So if the promise is connected with the receipt
of drafts or notes, and is to be understood as a promise to repay
them ; if they are not paid, nothing will be due on the promise,
and as it is not certain that they will be })aid, this also is a con-
tingency fatal to the character of the paper as a promissory note.

with the statement in the text. It was there held, that a post-dated chorli is altogether
void, and cannot 1)0 received in evidence for any purpose. IJut this decision proceeded
entirely ui)on a provision in an Enj^lish Stamp Act. Cliancellor Kent seems to havo
supposed tliat it was independent of any statutory provision. In 3 Kent, Com. 75, note,
he says : " In the late case in Knj;Iand of Serle r. Norton, 9 M v<t, W. .lOO, a jiost-datcd
clieck was held altogether void. We may well demur to that decision."

[c) Pasmore i>. North, 13 East, 517. In this case it was hiM, that the indorsee of a
bill of exchange, made payable sixty-five days after date, which was issued by the
drawer and indorsed i)y the ])ayee, who died before the ^ay when it bore date, may
make titli' through such indorsement, in order to recover on the bill against the drawer

((/) Roberts v. I'takc, 1 Burr. 3'.J3.

CH. III.] CERTAINTY AS TO THE FACT OF PAYMENT. 43

even if it be not negotiable, (e) If payable provided terms expressed
in certain letters or other documents arc complied with ; (/) or on
condition that the note shall be void if any dispute shall arise as
to the consideration for it ; (g-) or for the payment of all balances
which shall be due from the maker to the extent of the amount
expressed in the note ; (h) or jjayable when certain property is sold
by the drawee ; (i) or if A shall not be surrendered to prison within
a certain time ; (j) or if A shall not pay certain money on a cer-
tain day ; (k) or if it be payable only out of a particular fund, as
'' out of my growing subsistence," (/) or " out of rents," (m) or
"out of money in the hands of," &c.;{n) or " out of certain money
as soon as it shall be received " ; (o) or " out of a certain payment
when due ; "(p) or " for value received in stock, &c., this being in-
tended to stand against me as a set-off for that sum left me by my
father above my sister's share,"(<7) which would not be payable if
the will were not finally carried into effect ; or " provided A shall
not return to England, or his death be certified before," &c. ; (r)
or payable "four years after date, if I am then living" ; (5) or

(e) "Williamson v- Bennett, 2 Camp. 417.

(/) Kingston v. Long-, Baylcy on Bills (2d Am. cd.), 14, n. (30), 4 Doug. 9.

Ig) Hartley v. Wilkinson, 4 Camp. 127, 4 Maule & S. 25.

(/i) Leeds v. Lancashire, 2 Camp. 203.

{{) De Forest v. Frary, 6 Cowen, 1.51.

(j) Smith w. Boheme, cited in Jenncy v. Herle, 2 Ld. Eaym. 1361, and in Morris v,
Lee, 2 Ld. Raym. 1396. For the pleadings, see 3 Ld. Raym. 63.

(k) Appleby v. Biddolph, cited in Morice v. Lee, 8 Mod. 362.

(I) Josselyn v. Lacier, 10 Mod. 294, 317, Fort. 281.

{m) Diet, in Jenney v. Herle, 2 Ld. Raym. 1362.

(«) Jenney v. Herle, 2 Ld. Raym. 1361, 1 Stra. 591, 8 Mod. 266.

(0) Dawkes v. De Lorane, 3 Wilson, 207, 2 W. Bl. 782. In this case De Grey, C J.
said : " The instrument or writing which constitutes a good bill of exchange according
to the law, usage, and custom of merchants, is not confined to any certain form or set
of words, yet it must have some essential qualities, without which it is no bill of ex-
change ; it must carry with it a personal and certain credit given to the drawer, not
confined to credit upon any thing or fund : it is upon the credit of a person's hand, as
on the hand of the drawer, the indorser, or the person who negotiates it ; he to whom
such bill is made payable or indorsed takes it upon no particular event or contingency,
except the failure of the general personal credit of the persons drawing or negotiating
the same."

(p) Haydock v. Lynch, 2 Ld. Eaym. 1563.

[q] Clarke v. Percival, 2 B. & Ad. 660.

(?•) Morgan v. Jones, 1 Cromp. & J. 162.

(?) Braham v. Bubb, ChiUy on Bills (9th cd.), 135. Abbott, C. J. said : " I think thia
is not like a note payable on the maker's death, which is an event that must happen,
but here it is contingent whether the note will ever be payable; for if the maKcr should
die within the four years, no payment is to be made."

44 NOTES AND BILLS. [CH. IE.

at certain periods, the instalments to cease at the death of the
payee ; (t) or to pay one certain wages " if he do his duty as,"
&c. ; {u) none of these promises would be held to be sufficiently
absolute and free from condition or contingency to satisfy the
requirements of a promissory note, even if it were not negotiable.
On the same principle, a guaranty can never be a promissory
note, for it is not an absolute promise to pay money. The con-
trary doctrine seemed at one time to be established in Xew
york,(r) but it has been entirely overthrown by more recent
cases. (?6') The statement of a particular fund in a bill of ex-
change will not vitiate it, if it be inserted merely as a direction
to the drawee how to reimburse himself. (.r) So also, it is no
objection to a bill or note, that it states the transaction out of
which it arose, or the consideration for which it was given. (y)
In many of the above cases it was an order rather than a

{t) Worley v. Harrison, -3 A. & E. 669. If there is a contingency, it matters not whether
it is one upon which the liability is to cease or to arise ; in other words, whether it is a
condition precedent or a condition subsequent. lb.

(t() Alves V. Hod«,rson, 7 T. R. 241.

(v) Lcquecr i-. Prosscr, 1 Hill, 256, 4 Hill, 420; Hongh v. Gray, 19 Wend. 202;
Ketchell v. Burns, 24 Wend. 4.56 ; Miller v. Gaston, 2 Hill, 188.

(w) See Manrow v. Durham, 3 Hill, 584, 2 Comst. 5.33 ; Brown ?•. Curtiss, 2 Comst.
225 ; Hall v. Farmer, 5 Dcnio, 484, 2 Comst. 553 ; Brewster v. Silence, 4 Seld. 207.
And see Lcggett v. Raymond, 6 Hill, 639 ; Weed v. Clark, 4 Sandf. 31 ; Robins v.
May, 11 A. & E. 213 ; Tinker v. McCaulcy, 3 Mich. 188, overruling Iliggins v. Wat-
son, 1 Mich. 428.

(r) Thus, where A. B.,by an order in writing, requested the defendant to pay to the
plaintiff or order £9 10s. " as my quarterly lialf-pay, to be due from 24th of June to
27th of September ne.\t, by advance," it was lield, that this was a bill of excliange.
The court .said : " The mention of the half-pay is only by way of direction how he shall
reimburse himself, but the money is still to be advanced on the credit of the person."
Macleod v. Snee, 2 Stra. 762, 2 Ld. Raym. 1481. In Reesidc v. Knox, 1 Miles, 294,
2 Wliart. 233, it was held, that an order drawn by a mail-contractor upon the Post-
master-General for a certain sum, and directing him to charge the same " to my account
for transporting the U. S. mail," was not a bill of exchange. The decision, however,
was not based upon the form of the bill, but upon the fact that it was drawn upon gov-
ernment. Sedqacere. Sec United States i". Bank of the Metropolis, 15 Pet. 377. See
ftirthcr, Strader v. Batchelor, 8 B. Mon. 168; Rice v. Porter, 1 Harrison, 440; Bank
of Kentucky v. Sanders. 3 A. K. Marsli. 184 ; KcUcy v. Mayor of Brooklyn, 4 Hill,
263 ; Coursin v. Lcdlic, 31 Penn. State, 506.

(i/) Thus, in Haussoullicr v. Ilartsinck, 7 T. R 733, it was held, that a note by which
A promised to pay to the bearer £ 50, " being a portion of a value as under deposited
in security for the payment thereof," might be declared on as a promissory note. So
in Wells c. Brigliam, 6 Cusli. 6, it was held, that an order directing the dif.ndant to
pay A. B. a certain sum, " which is due mc for the twohorse wagon iiought last spring,"
was a bill of excliange. And sec Fiincourt r. 'J'hornc, 9 <). B. 312; Vanicr r. Noble-
borough 2Grecnl. 121. See, however, Van Wagner r. Terrett, 27 Barb lei.

CH. III.] CERTAINTY AS TO THE FACT OF PAYMENT. 45

promise, and the question was not whether a certain instrument
was a promissory note, but whether it was a bill of exchange.
In this respect, however, these instruments are precisely the
same.(c)

As it is the purpose of promissory notes to represent money,
and to perform, so far as possible, all its functions, it is of course
necessary that they should be payable in money. A promise in
writing, therefore, to pay or deliver specific articles, or to do any
act other than pay money, has none of the characteristics or privi-
leges of negotiable paper. And though it contain a promise to
pay money, if it also contain a promise to do something else, it
is not a promissory note. Thus, a note promising to deliver up
horses and a wharf and pay money on a particular day is not a
promissory note. (a) So if the promise is in the alternative to
pay a certain sum in money or specific articles, it is not a prom-
issory note. (6)

On one point there is some difference between the English
authorities and our own, and some conflict in those of this
country. In England it is held quite strictly that the promise
must be to pay money ; and a promise to pay a sum "in good
East India bonds," or even " in cash or Bank of England notes,"

(2) The cases upon this subject arc very numerous, but we do not deem it necessary
to state them more at length. Richardson v. Martyr, Q. B 18.5.T, 30 Eng. L. & Eq.
363; Raigauel v. Ayliff, 16 Ark. .594; Owen v. Lavine, 14 Ark. 389; Hamilton v.
Myrick, 3 Ark. 541 ; Henry v. Hazen, f> Ark. 401 ; Smalley v. Edey, 1.5 111. 324,
Kinney v. Lee, 10 Texas, 155 ; Shenton v. James, 5 Q. B. 199 ; Dyer v. Covington
Townsliip, 19 Penn. State, 200 ; Mills v. Kuykendall, 2 Biackf. 47 ; Dnuy v. Macaulay,
16 M. & W. 146 ; Banbury r. Lisset, 2 Stra. 1211 ; Carlos v. I'ancourt, 5 T. K. 482 ;
West V. I'oreman, 21 Ala. 400; Shields v. Taylor, 25 Missis. 13; Worden v. Dodge,
4 Denio, 159 ; Hodges v. Hall, 5 Ga. 163 ; Van Vacter v. Flack, 1 Smedes & M. 393 ;
Crawford v. Cully, Wright, 453 ; Wiggins v. Vaught, Cheves, 91 ; Weidler v. Kauff-
man, 14 Ohio, 455 ; Cook v. Satterlee, 6 Cowen, 108; Atkinson v. Manks, 1 Cowen,
691 ; Waters v. Carleton, 4 Port. 205; Tucker r. Maxwell, 11 Mass. 143; Nichols v.
Davis, 1 Bibb, 490 ; Smurr r. Fornian, 1 Ohio. 272 ; Curie v. Beers. 3 J. J. Marsh.
170; Coolidge v. Rugglcs, 15 Mass, 387; Fralick i\ Norton, 2 Mich. 130; Drawn v.
Cherry, 14 La. Ann 694; Lanfcar v. Blossman, 1 La. Ann. 148.

(a) Martin v. Chauntry, 2 Stra. 1271. And see, to the same effect, Wallace v. Dyson,
1 Speers, 127; Barnes v. Gorman, 9 Rich. 297; Austin v Burns, 16 Barb. 643;
Knight (;. Wilmington & M. R. R. Co., 1 Jones, N. Car. 357 ; Jerome v. Whitney,
7 Johns. 321; Saxtou v. Johnson, 10 Johns. 418; Peppen i;. Pcytavin, 12 Mart.
La. 671.

(b) Dennett r. Goodwin, 32 Maine, 44 ; Matthews v. Houghton, 2 Fairf. 377; Alex-
ander r. Oaks, 2 Dev. & B. 513 ; Atkmson v. Manks. 1 Cowen, 691.

4B NOTES AXD BILLS. [CH. m.

was held not to be sufficient. (c) Such seems to be the rule m
Massachusetts. (fZ) But in New York, "payable in York State
bills or specie," (e) was held good ; and so was a note payable
in "bank-notes current in the city of New York."(/) But one
payable in " Pennsylvania or New York paper currency, to be
current in the State of Pennsylvania or the State of New York,"
was held in New York not to be a good note.(g') In Pennsyl-
vania, a note payable " in bank-notes of the chartered banks
of Pennsylvania" was held not to be a negotiable note.(/<) In
Tennessee, it is held that a note payable " in current bank-
notes," or " current bank-notes of Tennessee," is not a nego-
tiable instrument. (i) In England, Bank of England notes are
a legal tender by law excepting by the bank itself ; (j) and in

(d) Jones v. Fales, 4 Mass. 245 ; and see Young v. Adams, 6 Mass. 182.

(e) Keith v. Jones, 9 Johns. 120.
(/) Judah V. Harris, 19 Johns. 144.

(fj) Lcibcr v. Goodrich, 5 Cowen, 186. Sutherland, J. said : " Payment in any bank-
bills generally current in the State of Pennsylvania, although not current in this State,
would satisfy the terms of the note. Its legal effect, therefore, is the same as though it
had been payable merely in baJik-bills current in the State of Pennsylvania. Are such
bills known, approved of, and used in this State as cash ? I believe that in truth most
of the Pennsylvania bills pass only at a discount in this State. But if the fact be
otherwise, it certainly is not so notorious that we can officially take notice of it. The
note, therefore, is not payable in cash, but in something differing in value from cash.
Of course it is not negotiable under the statute York State bills, and bank-
notes current in the city of New York, have been held to be equivalent to lawful cur-
rent money of the State. We may officially take notice that our own bank paper is,
in conformity with common usage and common understanding, regarded as cash. But
we cannot be supposed judicially to know the value of the paper currency of other
States." The question in this case arose on a demun-er to the declaration. In Thomp-
son V. Sloan, 23 Wend. 71, it was held, that a note made in New York for $2,500,
" payable at the Commercial Bank in Buffalo, in Canada money," was not negotiable.
And in Little v. Phenix Bank, 2 Hill, 425, 7 Hill, 359, it was hild, that a check
drawn in New York upon a bank in Mississippi, payable in current bank-notes, was
not negotiable.

(/() M'Cormick v. Trotter, 10 S. & R- 94. Duncan, J. said: "It was not a promise
to pay money, either in legal contemplation or in the contemplation of tlie parties when
they contracted. It is an unanswerable objection to the action, that the defendant
might, according to this contract, have temlcred the .1500 in the notes of any chartered
bank, however depreciated their paper might be. In a note for money, nothing but
CTirrcnt coin would be a tender." So in Gray v. Ponahoe, 4 "Watts, 400, it was held,
that a note payable " in current bank-notes" was not negotiable.

(i) Gamitle v. Hatton, Peck, 130; Childress v. Stuart, Peck, 270; Kirkpatrick v.
McCulough, 3 Humph. 171 ; Wliitcman v. Childress, C Humph. 303.

[j) Hcc pnst, chapter on Bank-Notcs.

CH. ni.] WHEN AN UNCERTAINTY IS MATTER OF FORM. 47

this country no paper is so. It is a little remarkable, therefore,
that the law in that country is more strict on this point than
in our own, Wc think it not more strict only, buc more sound
and more in harmony with the nature, purpose, and function of
negotiable paper. We add in a note a few additional authorities
on this question. (/c)

SECTION VI.

WHEN AN UNCERTAINTY IS MATTER OF FORM AND NOT OF SUBSTANCE.

It should be remarked, to prevent misconception, that the
question whether such a condition, contingency, or uncertainty
as either of those above enumerated prevents a written paper
from being a promissory note, is, not unfrequently, one of
form rather than of substance, unless the note be negotiable
and negotiated, and the question occurs in relation to one or
more persons who are parties to the note or interested in it
under the law of indorsement. In that case, if the uncertainty
were such tl\at the instrument was not a negotiable promissory
note, it would seldom be the case that it could have any obli-

(k) In Irvine w. Lowry, 14 Pet. 293, it was held, that a note payable "in office notes
of the Lumberman's Bank," was not negotiable. In Hasbrook v. Palmer, 2 McLean,
10, it was held, that a note executed in Michigan, payable in New York, in New York
funds or their equivalent, was not negotiable. In Fry v. Rousseau, 3 McLean, 106, it
was hehl, that a note payable "in current bank-bills " was not negotiable. To the same
eifect is Collins v. Lincoln, 11 Vt. 268, where the note was payable " in current bills."
And see State v. Corpening, 10 Ired. 58 ; Kirkpatrick v. McCulough, 3 Humph. 171 ;
Whiteman v. Childress, 6 id. 303. In Swetland v. Creigh, 1.5 Ohio, 118, it was held,
that a note payable " in current Ohio bank-notes " was for a sum certain, and nego-
tiable. The same was held in White v. Eichmond, 16 Ohio, 5, where the note was
payable " in current funds of the State of Ohio." See Besancon v. Shirley, 9 Smcdes
& M. 457. In Lange v. Kohne, 1 McCord, 115, it was held, that a note payable in
" paper medium " was not negotiable. And see Bank of Hamburg v. Johnson, 3 Rich.
42. In Lacy v. Holbrook, 4 Ala. 88, it was held, that a note payable in "funds current
in the city of New York " was negotiable. In Arkansas it has been held, that a note
payable " in good current money of this State," or in " Arkansas money," is nego-
tiable. Graham v. Adams, 5 Ark. 261 ; Wilburn v. Greer, 1 Eng. 255. Otherwise,
if it be payable " in Arkansas money of the Fayetteville Brancli." Hawkins v. Wat-
hins, 5 Ark. 481. Sec Wilamouicz v. Adams, 8 Eng. 12 ; Farwell v. Kennctt, 7 Misso.
595. In Ogden v. Slade, 1 Texas, 13, a note payable in lawful funds of the United
States or its equivalent was held to be payable in gold or silver or paper currency, and
was considered as negotiable under the " very peculiarly blended system of law and
equity " in Texas. See also Fleming v. Nail, 1 Texas, 246 ; Chevallier v. Buford,
id. 503.

48 NOTES AND BILLS. [CH. IIL

gation or any efficacy whatever. "Wliereas, if the objection was
fatal to the paper as a promissory note, hut it was not nego-
tiable, or. if negotiable, not negotiated, or indeed if it had been
negotiated, but this question arose between the original parties,
though it could not be declared upon as a promissory note, it
might still be evidence of an agreement. And a party, by
framing his case accordingly, might generally secure all the ad-
vantages which would belong to the instrument as a promissory
note. But then he would be obliged to aver and to prove a
consideration for the promise, and also that the condition had
been performed, or that the contingency had occurred on which
the promise was made. And if in the actual contract there was
such a condition or contingency, and the plaintiff did not state
it, the defendant might show it in defence. Whereas if the
plaintiff relied upon the written instrument as a promissory note,
it would not relieve him from the objection of contingency to
aver and prove that the contingency had happened or the condi>
tion been performed on which the promise was dependent, be-
cause no such event could make a paper so written a promissory
note. And on the other hand, if it were on its face free from
any such objection, the defendant could not avoid the note by
showing that such condition or contingency entered into the bar-
gain ; although he might, under certain circumstances, make
out a substantial defence on this ground.

SECTION VII.

OF DELIVERY.

This is one of the essentials of bills and notes, for although it
is often said that a note is made, when all we mean is that it has
been written and signed, the note is not made in a legal sense,
that is, it is not perfected, and the maker is under no obligation
whatever as maker, until it is delivered. (Z)

(0 Hopper V. Eiland, 21 Ala. 714 ; Cliambcrl.ain v. IIopps, 8 Vt. 94 ; Lansing
V. Gainc, 2 Johns. ;)00; Marvin v. McCnllum, 20 Johns. 288. A indorsed a note,
and died before delivery. His executor delivered it. Hold that no title passed.
Clark t;. Boyd, 2 Ohio, 56; Broinagc v. Lloyd, 1 Exch. 32; Clark v. Sigourney,
17 Conn. 511. Otlierwi.sc if delivered to a person who had made advances on the faith

CII. III.j DKLIVKRY. 4i»

Some questions have arisen as to what rights or obUgations are
created by promissory paper which was completely written and
signed, but never actually delivered by the promisor, and was
stolen from him, or lost by him and found by another, and by the
tliief or finder passed to an innocent holder for value. These
questions are considered elsewhere. (wi)

As a note takes effect only by delivery, so it takes effect only
on delivery, and if this delivery be subsequent to the date, it is
Btill to be considered as valid only from that day.(Ai) In the ab-
sence of evidence to the contrary, the law will presume that it
was delivered on the day of the date.(o)

If it be made payable in so many days, or weeks, or month':!,
from the date, this period must begin from the date which the
paper bears, without reference to the day of actual delivery. For
it is perfectly competent for the parties to agree that the money
should be payable when they please, and they express their agree-
ment on this point by making it payable in so many days from a
certain day. Thus, if a note payable in three months frojii date,
were delivered four months after date, it would be payable on
demand.

If a note payable on time had no date, the time naust be
counted from the delivery. And this must be the actual deliv-
ery, if that can be proved. If not, then the time will begin from

of the bill. Perry v. Crammond, 1 Wash. C. C. 100. See Michigan Ins. Co. v. Leav-
enworth, 30 Vt. 11. Delivery is necessary to an acceptance. Co.x v. Troy, 5 B. &
Aid. 474, 1 Dow & R. 38, overruling Thornton v. Dick, 4 Esp. 270. The delivery
must be to the party as indorsee. Adams v. Jones, 12 A. & E. 453 ; Marston v. Allen,
8 M. & W. 494 ; Brind v. Hampshire, 1 M. & W. 365. The date, not the time of de-
livery, fixes the time from which payment is to be calculated. Bum pass v. Timms,
8 Sneed, 459. So also the time from which the statute of limitations begins to run.
Montague v. Perkins, C. B. 1853, 22 Eng. L. & Eq. 516.

(m) See post, chapter on Lost Notes.

(?i) De la Courtier v. Bellamy, 2 Show. 422 ; Hague v. French, 3 B. & P. 173 ; Giles
r. Bourne, 6 Maule & S. 73, 2 Chitt. 300. In Powell v. Waters, 8 Cowen, 669, it was
held, that a note when delivered takes eflFcct from its date by relation. So also Snaith
V. Mingay, 1 Maulc & S. 87 ; Barker v. Sterne, 9 Exch. 684. Hence a note dated on
Sunday, but delivered on a week day, is valid. Lovejoy v. Whipple, 18 Vt. 379 ; Al-
dridge v. Branch Bank, 17 Ala. 45 ; Drake v. Rogers, 32 Maine, 524. Sec Clough v.
Davis, 9 N. H. 500. Where a statute made certain kinds of promissory notes, issued
after a given day, void, it has been held that the maker may prove a note dated before
that day to have been delivered after it Bayley v. Taber, 5 Mass. 286.

(o) Sinclair ?'. Baggaley, 4 M. & W. 312; Anderson v. Weston, 6 Bing. N. C. 296;
Roberts v. Bethell, 12 C. B. 778.

Vol. I.— D

50 NOTES AND BILLS. [CH. m.

the earliest day at which it can be shown that the liolder, or some
one from whom the holder derives title, had possession of the pa-
per. (;;) For where a note is in possession of a payee, the law
will presume that it was delivered to him in accomplishment of
the purpose for which it was written. (^) But this presumption
is always open to rebutter. (r)

From the presumption of law in favor of possession, a prom-
issor is bound to pay a note when due, in whosever hands it may
then be, unless he can show that the holder has no legal right to
it ; for without this proof, he must presume, as the law presumes,
that there had been a lawful delivery of it to the holder. (s)

It has been doubted whether a delivery which gives no interest
in the paper can give title or authority to sue it in the name of
the holder. We think it can ; and that a plaintiff may recover

( }>) Camp I'. Tompkins, 9 Conn. 545 ; Woodford v. Dorwin, 3 Vt. 82 ; Clark i;.
Sigourncy, 17 Conn. 511 ; Richardson v. Lincoln, 5 Met. 201.

(7) Set Woodford v. Dorwin, 3 V't. 82. In tliis case it a])pearcd " that in the first of
the year 1820 Samuel Hurlburt, Canfield Dorwin, and T. M. Dorwin formed a copart-
nerslii|) in trade, which continued until the 1st of April, 1821, when they dissolved, and
settled up their concerns as between themselves. Hurlburt left the country previous
to 1828, but at what particular time did not appear. When he left, he deposited his
papers in a box, and made it fast. In this box, it is said, the note in question was
deposited. The 9th of May, 1828, Hurlburt addressed a letter to J. McNeil, in which
it ai)])ears that Hurlburt and the Dorvvins had money of Jcrusha Woodford (one of
the plaintiffs), and that the note in question would be found in the box. The two
letters which the plaintiffs contend contain evidence of a new promise, or acknowl-
edgment of the debt, are ambiguous : it does not distinctly appear that the money,
which he says was borrowed of Mrs. Woodford, formed the consideration for the
note, though it may be inferred. In the first ho says : ' William has written me that
Dorvvins refuse to do anything about the note signed by them with me to Mrs. Wood-
ford. I have no distinct recollection about my settlement with Dorwins,' etc. Again :
' I had none of the $ 280 note you went after, which is in with your note in a box
nailed up.' He then gives assurances that he will secure the plaintiffs and pay all ho
owes them shortly. In the other, of December 15, 1828, he says : ' Some time or other
Messrs. C. & T. M. Dorwins and I, had some money of Mother Woodford, for our
company's use, and she not wanting it, we kept it until we dissolved ; and ho says I
was to pay that particular debt, and he the others.' At the trial before the county
court, the jury were instructed, that there could be no recovery on the note, as it did
not apjx'ar to have been delivered by the firm to the plaintiffs or any other one, without
which the contract was not comjilcte." And the Sujireme Court saiil they were "sat-
isfied that the note ought to take effect from tiic delivery ; and as the firm liad then
long been dissolved, it had no binding cff<'ct whatever upon this defendant. Therefore,
the judgment of the county court must be affirmed."

(;■) Woodford v. Dorwin, 3 Vt. 82; VuUett v. I'arkcr, 6 Wend. 615.

(») Criswold v. Davis, 31 Vt. 390.

CH. m.] DELIVERY. 51

if he produces the note at trial, because it will be presumed, in
the absence of evidence to the contrary, that he recovers for the
actual owner. We say, therefore, that it is quite enough to
maintain the suit, that the owner delivered it to the present
holder and plaintiff, for the purpose of an action, if this be not
done fraudulently, or to the injury of the defendant. (<)

The presumptions in favor of possession, and the burden of
proof which they create, will be more fully considered in a future
section, (i^)

A note, as well as a deed, may be delivered as an escrow, and
the law of escrows is substantially the same in both cases. But
the liability of the maker or indorser begins on the happening of
the event, or the performance of the conditions for which it was
delivered to the depositary, without any actual delivery by him
to the promisee. (u)

A note cannot be delivered directly to the promisee, to be held
by him as an escrow, (i^;) And if it be delivered by the promisor
only as an escrow to a depositary, and is by him wrongiilly dis-
posed of, and passes into the hands of an innocent holder for
value, the fact that it was delivered as an escrow will be no de-
fence against the holder, (a;)

(0 Austin V. Birchard, 31 Vt. 589.

(it) For cases on this subject, see Paterson v. Hardacre, 4 Taunt. 114 ; Solomons v.
Bank of England, in notes to 13 East, 135 ; King v. Milsom, 2 Camp. 5 ; Cruger v.
Arraslrong, 3 Johns. Cas. 5 ; Conroy v. Warren, 3 Johns. Cas. 259 ; Aldrich v. "War-
ren, 16 Maine, 465 ; Munroe v. Cooper, 5 Pick. 412 ; Wheeler v. Guild, 20 Pick. 546.

(v) Couch V. Meeker, 2 Conn. 302. See Bradley v. Bentley, 8 Vt. 243.

(w) Badcock v. Steadman, 1 Root, 87. See, however, Jefferies v. Austin, 1 Stra.
674 ; Goddard v. Cntts, 2 Fairf. 440.

(x) Vallett V. Parker, 6 Wend. 615.

52 KOTES A\D BILLS. [CH. IV.

CHAPTER IV.

OF BILLS OF EXCHANGE,

SECTION I.

WHAT THEY ARE.

As a promissory note is a written promise to pay money, so a
bill of exchange is a written order for the payment of money.
And it has been said that it must contain an order, or direction,
and not a mere request as of a favor. (//) But it is difficult to
draw a line between some of these cases.

There are some particulars in relation to damages, protest,
<fec., to be considered hereafter, in which the law of bills of ex-
change is regulated by statute. Even here, however, the statute
is little more than a confirmation or equalizing of custom. In
all other respects the law of bills of exchange is strictly a branch
of the law merchant, lex mercatoria, invented and practised by
merchants, and adopted and sanctioned by courts after it had
become the known usage of merchants, and because it had be-
come this usage. It is, therefore, peculiarly adapted to the wants
and use of a mercantile community, or rather of that mercan-
tile public, which, existing all over the world, by their mutual
intercourse and the relations and connections growing out of it,
constitute in some degree one community, embracing members
of various, of distant, and sometimes even of liostilc nations.

The bill of exchange is tiic principal instrument for the trans-
fer of money from place to place. In this respect, it is greatly
superior to the promissory note. If, for example, a merchant in
New York owed, for goods purchased, one thousand j)Ounds to
a merchant in London, he might send him that money in gold or
silver ; or he might find some one in New York to whom some

{tj) Sec Little u. Slackford, Moody & M. 171 ; Kuff r. Webb, 1 Esji. 129.

CH. IV.] BILLS OF EXCHANGE — WHAT THEY ARE. 58

London mcrcliant owed a thousand pounds, and might give him
the money, taking his note for it at sixty days ; this note he
might send to his London creditor, giving him the name of tlie
London debtor of the promisor of the note ; tlie London creditor
miglit take the note to the London debtor, who might wish to
save himself the trouble of sending the money to New York, and
might, therefore, cash the note, and, when his New York creditor
demanded payment, he might present to him this note l)y way
of set-off. In this circuitous and inconvenient way both debts
would be paid, and no money be sent across the ocean in eitlicr
direction, one debt being made to pay the other debt. But the
same result may be obtained more directly and conveniently by
means of a bill of exchange. Let the New York debtor, whom
we will call A, buy for a thousand pounds in dollars a written
order from the New York creditor B, addressed to the London
debtor C, requiring him to pay that amount to the order of A.
Upon this A indorses an order to C to pay it to his Loudon
creditor D, and transmits it to D, who presents it for payment to
C, and, receiving his money, both debts are paid.

Such an order would be a bill of exchange. It would, gener-
ally, be in this form. " New York, January 5, 1857. Yalue re-
ceived, please pay to A, or order, one thousand pounds, in sixty
days after sight, on account of your obedient servant, B. To C,
London." Here B is the drawer ; C is the drawee ; A is the
payee. As soon as D received the bill, with the order which A
indorses upon it making it payable to him, he would, with all
convenient promptitude, present it to C ; firstly, that the sixty
days after sight might begin to run ; secondly, that he might
know certainly whether C would pay the money as ordered.
This presentment, therefore, is called a presentment for accept-
ance ; because C must do one thing or the other, that is, he must
accept the bill, and this he usually does by writing across the
face of it the word " Accepted," with a date, and signing his
name below the word ; or he must refuse to accept the bill. As
soon as he has accepted the bill, he is called the acceptor, and
Decomes bound absolutely to pay it according to its tenor, or the
tenor of the acceptance, to the payee or his order. The payee
may then indorse the bill, in like manner as the payee of a
note may indorse the note, and acquire the same rights and
incur the same obligations. The drawee may, as we have seen,

5-4 NOTES AND BILLS. [CH. IV.

become an acceptor ; but there is to a promissory note no such
party as eitlier drawee or acceptor. The rights, duties, and
obligations of all of these parties will hereafter be fully consid-
ered. At present, we would lay the foundation for more partic-
ular mvestigation by the following general statements.

SECTION II.

OF THE OBLIGATIONS OF THE PARTIES.

The maker or signer of a promissory note, by signing and de-
livering it, comes at once under an absolute obligation to pay it
according to its tenor to any holder to whom it may be due at
maturity ; and such holder must look to the maker in the first
place, and demand it of him in the manner prescribed by law,
before he can look to any other party. Not so with the drawer

•C-* or signer of a bill of exchange. He too comes under an obliga-
tion to pay it ; but it is only an obligation to pay it if the drawee,

->— or person whom he orders to pay the money, fails to pay it. For
the payee, by receiving this order, undertakes to look to the
drawee, and use the methods which the law prescribes to get pay-
ment from him. The making and delivery of the bill put the
drawee under no obligation whatever beyond those which exist
from the relations between him and the drawer. When it is pre-
sented to him, he can accept it or not ; but if he docs accept it,
then lie comes at once under an absolute obligation to pay the
bill according to its tenor. It is obvious, therefore, that, until a
bill be accepted, there is no party to it who holds the same posi-
tion, and is under tlie same obligation, as the maker of a note ;
and that, when a bill is accepted, then the drawee, wlio has now
become an acceptor, holds the place of the maker of a note, and
is under the same obligations. But the drawer or signer of the
bill, l)y tlie act of drawing and delivery, becomes bound to pay
it if tlie acceptor does not. While the acceptor is as the maker,
the drawer is therefore as the first indorser of a note. The
drawer's name is on the face ; and the bill cannot be called in-
dorsed, strictly speaking, until the j)ayee indorses it ; and then
the payee is apparently the first, and as yet the only, indorser;
still he is, in point of legal o)>ligation, the second indorser. for tli^ •

CII. IV.] INLAND BILLS AND FOREIGN BILLS. 55

duties of the respective parties stand thus. The acceptor is
bound absohitely to pay the bill ; the drawer is bound to pay it
if the acceptor does not ; and the payee, having indorsed the bill,
is bound to pay it if the drawer docs not. The obligation of tho
drawer is peculiar in another respect also. He is not only bound
to pay the bill if the acceptor does not, but he is bound to pay it
if tho drawee refuses to accept it. By such refusal there is no
acceptor, and no person primarily bound to pay it. But that
refusal was one of the conditions on which the drawer engages
to pay it, because by drawing he engages that the drawee shall
accept the bill on presentment. Therefore, if acceptance be re-
fused, the obligation of the drawer may be made absolute at once
by due notice, and if the payee had indorsed the bill before ac-
ceptance, as is frequently done, then his obligation is unaffected
by non-acceptance, and he is still bound to pay, but only if the
drawer does not. And, as the result of all this, the common
phraseology of the books is, that the acceptor of a bill is as the
maker of a note, the drawer as the first indorser, and the payee,
after putting his name on the back, as second indorser. And
viewing them as such parties, the whole law of demand, notice,
and liability, which we shall discuss in future chapters, will be
found to belong to them.

SECTION III.

OF INLAND BILLS AND FOREIGN BILLS.

There is a distinction in respect to bills of exchange which
has no analogy in promissory notes ; it is that which divides them
into inland (or domestic) and foreign bills ; the effect and im-
portance of this will be seen when we come to speak of protest
and damages ; at present we would only define them. In Eng-
land, from which the distinction came to iis, a bill is inland when
made and payable within that kingdom ; but if either made or
payable abroad, meaning out of the kingdom, it is a foreign bill.
Therefore, a bill drawn in Ireland and payable in England, is
held in England to be a foreign bill, and would undoubtedly be
so held in Ireland. (s) If drawn in England on a person abroad,

[z) Mahony v. Ashlin, 2 B. «& Ad. 478.

56 NOTES AXD BILLS. [CH. IV

but payable in England, and accepted payable in England, it has
been tbei'e held as falling within the definition of an inland bill,
as both drawn and payable in England. («) But tiie contrary was
decided in this country at an early day. (6) Tiiat a bill drawn or
payable in a foreign country would be held in this country to be
a foreign bill, never was questioned ; but it was at one time much
doubted whether a bill would be held foreign in one of our
States, which was drawn or payable in another of these States.
But this question is now well settled by authority. The true
criterion, which is exclusively to determine whether the bill be
foreign or inland, would be found in the further question, whether
the State in which the original qiiestion arises has, by its courts,
full and complete sovereignty and jurisdiction over it. And as
our States are so far foreign that the municipal law of each one
is independent of that of every other, and the processes of courts
do not go from one State to another, a bill so drawn must be held
to be foreign. When the question came before the Supreme
Court of the United States, under the statute which denies to ti\c
District or Circuit Courts cognizance of certain suits, " except in
cases of foreign bills of exchange," (c) it was held, that a bill of

(a) Amner v. Clark, 2 Cromp. M. & R. 468. In this case tho bill was drawn in Lon-
don payable to the order of the drawer in London, upon a merchant residing at Brus-
sels, and accepted by him, payable in London. ILId, that it was an inland bill, and
must be stamped as such. It should be observed, however, that the question in this,
ease arose under the English Stamp Act ; and it is not certain that the decision would
Iiave been the same if the question had depended entirely upon the law merchant. The
counsel for the plaintirt", after stating that the stam[) act defined a foreign bill of exchange
as a bill "drawn in, but payable out of. Great Britain," said : " It may be that there is
another species of foreign bill, namely, when it is drawn in ICngland upon a person re-
siding al)road, and accepted by him payable in ICngland." But Bolland, H., in deliver-
ing his opinion, said : "An inland bill is a bill drawn in, and jiayable in, (ireat Britain,
which this bill is."

(//) (iriinshawv. Bender, 6 Mass. 1.57. This was an action by the drawer against the
ac<'cptor of a bill of exchange. The bill was drawn in England by the plaintitf, an
English merchant, upon the defendants, a commercial house, residing and doing busi-
ness in Boston. One of the defendants, being in England at the time the bill was drawn,
accepted it on behalf of the tirm, " ])ayable in London." lldil, that it was a foreign
bill, in reference to the measure of (himages. Parsons, C.J. said : "It is manifest that
the remedy contemi)lated by the [>artics, in the event of the bill being dishonored, must
be sought in this State, where the acceptors lived. From this view of the case, the in-
strument mu-^t be considered as a foreign bill, having the same eilcct as if the payee
had stnt it to Boston, aTid it had been accepted, payable in London by the house here ;
in which case the money must be remitted to London to meet the bill refjrn'd to tho
drawer after acceptance."

CH. IV.] INLAND BILLS AND FOREIGN BILLS. 67

exchange was a foreign bill, if it was drawn in one State and
payable in anotlier, altliongli the drawer and payee were inhab-
itants of the same State. (r./) The State courts have followed this
authority. (e) A case in New York contains a dictum not in con-
formity with this rule.(/)

A bill may be in fact inland having regard to the place
where it was drawn, but on the face of it appear to be foreign.
Thus, for some reason, a Boston merchant, temporarily in New
York, may draw his bill on a New York merchant, payable
in New York, but may date it at Boston. Such a bill would
undoubtedly be held to be foreign, in relation to innocent third
parties who became interested in it in tiie belief that it was
what it purported to be.(g') As between the original pai-ties and
others having notice of the circumstances under which the bill
was drawn, the question would be more douljtful ; but we
think it would, even then, be held to be a foreign bill, espe-
cially if it appeared that it was drawn in that form for no
wrongful purpose, but only that the bill might conform to the

(r/) Buckncr v. Finlcy, 2 Pet. 586. Washinr/lou, J., in delivering the opinion of the
court, said : " We are all clearly of opinion that bills drawn in one of tiiese Staters,
upon persons living in any other of them, partake of the character of foreign hills, and
ought so to be treated. For all national purposes embraced l)y the Federal (constitution,
the States and the citizens tiiereof are one, united under t!ie same sovereign authority,
and governed by the same laws. In all other respects the States arc necessarily foreign
to, and independent of, each other. Their constitutions and forms of government being,
although republican, altogether different, as are tiieir laws and institutions. This senti-
ment was expressed with great force by the President of the Court of Appeals of Vir-
ginia, in the case of Warder v. Arell, 2 Wash. Vu. 298, where he states that, in cases
of contracts, the laws of a foreign country, where the contract was made, must govern ;
and then adds as follows : ' The same principle applies, though with no greater force,
to the different States of America ; for though they form a confederated government,
yet the several States retain their individual sovereignties, and, with respect to their
tnuniciiial regulations, are to each other foreign.' " And see Lonsdale v. Brown, 4
Wash C. C. 86, 1 5.3.

(e) Duncan v. Course, 3 Const. R. 100; Chenowith v. Chambcrlin, B. Mon.
CO; Cape Fear Bank v. Stincmetz, 1 Hill, S. Car. 44 ; Phcenix Bank i<. Hussey, 12
Pick. 483 ; Wells v. Whitehead, 15 Wend. 527 ; Green r. Jack.son, 15 Maine, 136 ; Hice
V. Hogan. 8 Dana, 133 ; Halliday v. McDougall, 20 Wend. 81, 22 Wend. 264 ; Brown
V. Ferguson, 4 Leigh, 37 ; Carter v. Hurley, 9 N. H. 558 ; Freeman's Bank v. Perkins,
18 Maine, 292 ; Warren v. Coombs, 20 Maine, 139. See Offit v. Vick, Walker, 99, 104, n.

(/') Miller v. Ilackley, 5 Johns. 375. This case contains only a diitum of Van AV.s-s,
^ , in conflict with the rule stated in the text. See Wells c. Whitehead, 15 Wend. 527.

(<;) The contrary was decided in England in Steadman v. Dnhaniel, 1 C. 15. 888, but
that decision was based upon the stamp act. See Lcnnig i-. Ralston, 23 Penii. State,
V37.

58 NOTES AND BILLS. [CH. IV.

drawer's u^ual course of business, and be ^yllat it would have
been liad he not happened to be at the time in New York.
The converse of this has been decided. (//)

If a bill be signed in one place in blank, and sent to another
to have the date, the names of the drawee and payee, and the
amount and the place where payable, inserted, or if all these
are written in, and the bill then sent to the drawer in another
place for his signature, the bill will be taken to be made where
it is signed, and will be held to be inland or foreign accord-
ingly. (i) Every bill of exchange is, prima facie, an inland bill ;
and a party who would hold it as a foreign bill must allege and
prove it to be so.(j)

SECTION lY.

OF THE SETS OF FOREIGN BILLS.

Op inland bills, usually, but one copy is made ; but of foreign
Dills, usually, three copies are made, wliich together form what
is called a set of exchange. Tlie reason of this is, to guard
against loss or question in case of miscarriage, the chances of

(h) In Strawbridge v. Robinson, 5 Oilman, 470, it appeared that the bill was
dated at a place in Illinois, wliere the parties resided, hut was actually drawn in Wis-
consin, where the parties happened to be at the time. Ildd, that it was an inland
bill.

(/) Tims, wlicre f)artners resident in Ireland signed and indorsed a copperplate im-
pression of a bill of exchange, leaving lilanks for the date, sum, time when payable,
and name of the drawee, and transmitted it to B in England for liis u>e, who filled up
the blanks and negotiated it ; it was htlJ, that this was to be considered as a bill of ex
change by relation, from the time of the signing and indorsing in Ireland, and conse-
quently that an English stamj) was not necessary. An<l Daijlci/, J. said : " Suppose
tiie person .subscribing his name as drawer had died wliilst the bill was on its i)assnge,
and afterwards the blanks had been filled up and the bill negotiatc<l to an innocent
indorsee ; I should think that in that case the representatives of the party sigtdng the
bill would have been liable. This sliows that when the wliole is filled u)), it has lefer-
cnce to tilt! time of the signature, which in tliis case was made in Ireland." Snaitli v.
Mingay, 1 Maule & S. 87. And sec, to the same ertect, Lennig n. Italston, 23 Ponn.
State, 1.'57. So where a bill of exchange was written, and the acceptance of it made,
in ICiigiand, and it was afterwards transmitf<'d to tlie drawer abroad for his signature,
and was there signed, it was Itdd, that the l)ill was a foreign one. Boehin v. Cimpbc'l,
Gow, .53. And see Crutchiy v. Maim, .5 Taunt. .O^O.

{j) Armani v. Castriijue, l.T M. & W. 44.'J.

CH. IV.] THE SETS OF FOREIGN BILLS. 59

the bill reacliing in due season the party to whom it is trans-
mitted being thus increased threefold. And the facility for
presentment thus afforded has been held to hasten the time
within which a bill should be presented for acceptance. (/j) Usu-
ally, perhaps always, each copy of the set is designated on tht:
face of it, the order being, " Pay this first of exchange, the
second and third being unpaid," or, " Pay this second of ex-
change, the first and third being unpaid." But for this precau-
tion the drawer might be held by an innocent purchaser of one
copy, without notice that another existed. (/) Hence the custom,
said to prevail, or to have prevailed, in Europe, of having no
such caution on the first of exchange, and on the second saying
only " the first being unpaid," (m) seems unsafe, for the first then
gives no notice of the second and third, and the second gives
no notice of the third. But an omission to name other parts,
obviously by mistake, might not affect the rights of any party. (?i)
The whole of the set constitutes, in law, but one bill, and
therefore payment or cancelling of either copy of the set is a
dischai"ge of all.(o) A holder of either copy of the set is entitled

(k) Strakcr v. Graham, 4 M. & W. 721.

(/) In \Yii<;lit V. McFall, 8 La. Ann. 120, whore the first and second of a bill of ex-
diange were Ijoth accepted, with the knowledge and consent of the drawers, and with-
out fraud or collusion between the holders and acceptors, it was held, that the drawers
were liable on both.

(m) Marius (4th ed.), p. 7.

(n) Bayley on Bills (2d Am. ed.), p. 24.

(o) Durkin v. Cranston, 7 Johns. 442 ; Ingraham v. Gibbs, 2 Dallas, 134 ; Miller v.
Hackley, Anthon, N. P. 68 ; Perreira v. Jopp, 10 B. & C. 450, n. (a). The case of
Holdsworth v. Hunter, 10 B. & C. 449, was decided upon special circumstances. The
drawee (who was also payee) of a foreign bill of exchange drawn in tliree parts, ac-
cepted and indorsed one part to a creditor to remain in his hands mitil some other
security was given for it ; and afterwards accepted and indorsed another part for value
to a third person. The acceptor substituted another security for the part first accepted,
whereupon it was given up to him. Held, that under these circumstances the holder
of the part secondly accepted was entitled to recover on the bill against the acceptor.
Htld, also, by Lord Tenterden, C. J. and Parke, J., that the acceptor would have been
liable on the part secondly accepted, even if the first part had been indorsed and circu-
lated unconditionally. Lord Tenterden said : " According to the verdict of the jury,
the delivery of the bills to the defendant's father was not absolute, but conditional, and
I fhink that the facts of the case justified that finding. The parts first accepted cannot,
therefore, be said to have been paid, for they were redeemed by the substitution of
other securities. That being so, what was there to prevent the defendant from putting
in circulation another part of the bills ? But I am inclined to go further, and to say
that the j)laintiff" would have been entitled to recover, even if the transfer to the father

60 NOTES AND BILLS. [CH. IV.

to recover thereon, without producing the otlier copies, or ac-
counting for their non-production. If another copy of the set
has already been paid, and another person is the proper holder,
and has given notice of his title to the party sued, or if any
other ground of defence exists, which displaces the prima facie
title of the plaintiff, the defendant must show it.(/?)

On the continent of Europe, it seems to be not unusual for
an original bill to be forwarded for acceptance, and in the mean
time a copy of it negotiated ; and it is said to be necessary that
this copy should be marked as such, stating also where the
original is ; but we have no practice of this kind in this country,
and it is said not to exist in England. (7) A protest may some-
times be made on the copy of a bill.{r)

SECTION V.

OF THE CERTAINTY REQUISITE IN A BILL OF EXCHANGE.

As a bill of exchange is intended to operate and be used as
an instrument of business and as a representative of money,
even more than a promissory note, and in order to do this it
must be precise and definite in the facts whicli it states and
the obligations which it imposes ; therefore, all that was said,
in tlie previous cliaptcr, of the various certainties essential to a
legal promissory negotiable note applies to a negotiable bill of
exchange, always with as great, and in some respects with even
greater, force. Although on these points, as on all others, the
law merchant seeks to be reasonable rather than technical, yet
here it is but reasonable to be very exact. It will be seen,
therefore, as we go on presenting the law of negotiable paper,

h.iil been iibsoliite and uneomlitionaL For suppose two parts of a foroi^;n lull come to
the hands of the drawee, he accepts both, and indorses first one part to A an(i after-
wards the other part to B. In any question as to property between them, A init:lit bo
entitled to both. Hut the question here is, whether the acceptor anil indorser siiall l>o
allowed to dcfi.'nd himself a^^ainst the liolder of the one part, on account of the previous
circulation of the other part. I am not aware of any princi|)Ie of law tipon whiih su' h
a defence can be supported."

(/)) Downes (.-. Church, 1.1 Pet. 20."); Commercial Bank v. Routh, 7 La. Ann. 128.

(7) Hylcs on Bills, ;jil.

(r) iJehers v. Harriot, I Show. 163.

OH. IV.] C^iRTAINTY REQUISITK IN A BILL OF EXCHANGE. 61

that it requires, upon all matters which belong to the repre-
sentative character of this paper, or, in other words, as to
everything which makes it an accurately defined contract which
must be executed promptly and accurately according to its pre-
cise tenor, a very great exactness. And it is perhaps true
that the courts in many recent cases seem to be taught, by the
increasing experience of the mercantile community, rather to
increase and strengthen this exactness than to relax it in any
way. Whatever favor the equities of a particular case may
require, we believe that the general purpose of the law of
negotiable paper, and the general good of a community among
whom the use of this paper is now universal, requires at least
all of the exactness and all of the stringency that the courts
of England or of this country have ever applied to this subject.
In addition to the requisites of certainty in a promissory note,
a bill of exchange must be reasonably certain as to the person
to whom it is directed. An instrument which is not directed to
any one is not a bill of exchange. (.«) But where an instrument
in writing possessed all the other requisites of a bill of exchange,
and was made payable at a particular house, it was held suffi-

(s) Tlie case of Regina v. Hawkes, 2 Moo. C. C. 60, seems to have held a different
doctrine. But we think that case would not now be regarded as law. In Peto v. Rey-
nolds, 9 Exch. 410, Parke, B. said: "I cannot help observing, that, with the excep-
tion of Regina v Hawkes, there is no case in which it has ever been decided that an
instrument could be a bill of exchange where there was not a drawer and a drawee.
With respect to that case, it does not seem to me entitled to the same weight of au-
thority as a decision pronounced in the presence of the pul)Iic, and on reasons assigned
after hearing an argument in public. I must own that, but for that case, I should
have had no doubt that the law merchant required that every bill of exchange should
have a drawer and drawee." Aldtrson, B. said : " With respect to the question
whether this instrument is or is not a bill of exchange, the case of Regina v. Hawkes
is undoubtedly in point. I must own, however, tliat I now think that I was wrong on
that occasion. The case seems to have been decided on the ground that Gray v. Mii-
ner, 8 Taunt. 739, governed it; and the fact was not adverted to, that Gray v. Milner
may be thus explained : that a bill of exchange, made payable at a particular place or
house, is meant to be addressed to the person who resides at that place or house.
Therefore, in that case, the bill was on the face of it directed to some one ; and the
court held, that, inasmuch as the defendant promised to pay it, that was conclusive
evidence that he was the party to whom it was addressed. But in the case of Rcina
V. Hawkes, the instrument was addressed to no one." Martin, B. said : " It seems to
me that it is absolutely essential to tlie validity of a bill of exchange, that it should
have a drawer and a drawee ; and, except for the case of Gray i- Milner. I should have
doubted whctlicr the making a bill payable at a particular place was a sufficient ad-
v'ress." See also Reynolds v. Peto, 11 Exch. 413.

VOT.. I. G

62 NOTES AND BILLS. [CH. IV.

cient, upon the ground that it must be considered as directed
to the person residing at that house ; and the defendant having
accepted it, this was regarded as an acknowledgment that he
was the person to whom it was directed. (^) The soundness of
this decision has been questioned. (2/) An instrument in the
common form of a bill of exchange, except that the word at
was substituted for to before the name of the drawee, has been
held to be a bill of exchange. (t;) If there was evidence that an
instrument was so drawn for the purpose of deception, there
would be no doubt that it would be a bill of exchange. (ir)
And it is not absolutely necessary that the drawee should be
a different person from the drawer. For it is very common
for a man to draw upon himself; and it has long been held,
that such an instrument is a good bill of exchange. (a;) But
it may be treated as a promissory note, at the election of the
holder. (//) The same principle applies where a copartnership
carries on Imsincss at two different places, and one establish-
ment draws a bill upon the other. (2) So where a duly au-

(0 Gray v. Milner, 8 Taunt. 739.

(u) See Pcto v. Reynolds, supra, and Davis v. Clarke, 6 Q. B. 16.

{v) Shuttlcworth v. Stephens, 1 Camp. 407 ; Regina v. Smith, 2 IMoo. C. C. 295.

(w) Rex V. Hunter, Russ. & R. C. C 511 ; Allan v. Mawson, 4 Camp. 115. In thLs
last case Gihbs, C. J. said : " I shall leave it to the jury whether the word ' at,' from
the manner in which it is written, was not inserted for the purpose of deception, and
then the instrument is a bill of exchange in point of fiict. The ' at' being struck out,

it is in the common form in which bills of exchange are drawn I can sec no

motive for drawing an instrument in this form, except to deceive the publip. If such
instruments have been common iu the country, they ought not to be continued or
endured."

(.r) See Starke ;;. Cheesman, Carth. 509; Dehcrs v. Harriot, 1 Show. 163 ; Robin-
eon V. Bland, 2 Buit. 1077. In Ilarvcy v. Kay, 9 B. & C. 364, Bai/h;/, J. said : " In
Magor V. Hammond, which was a special verdict in Common Pleas argued before the
twelve judges, all the judges were of opinion that an instrument might be a bill of ex-
change, though the drawer and drawee were the same person." In Davis v. Clarke, 6
Q. B. 19, Pnllcson, J. said : '' I do not know tliat a jiarty may not address a bill to
himself, and accept, though the proccc<ling would be al)purd enough." Sec also Wildes
r. Siivage, 1 Story, 22 ; Cunningham v. Wardwcll, 3 Fairf. 466.

(y) Roach v. Ostler, 1 Man. & R. 120 ; l{ando!ph v. Parish, 9 Port. Al\. 76.

(z) Thus, in Miller 7\ ThonTion, 3 Man. & G. 576, it was lulil, that an instrument in
the form of a bill of exchange, drawn upon a joint-stock bank by the manager of ono
of its branch banks, by order of the directors, miglit be declared on as a ])romissory
note. Tiiiddl, C. J. said : " It is an instrument drawn by one of several partners, di-
recting that a sum of money shall be paid by the partnership at a dilTerent place.
There is an absence of tlic circumstance of there being two distinct parties as dravver
and drawee, whi"h is es.sential to the constitution of a bill of exchange. That being bo,

CH. IV.] CERTAINTY REQUISITE IN A BILL OF EXCHANGE. 63

thorized agent or officer of an incorporated company draws,
in behalf of the company, upon the trcasnrer, cashier, or other
■officer of the comi)any who has the custody of, and is charged
with the duty of disbursing, tlie company's funds, this is in
substance, it should seem, a draft by the company upon itself ;
and may be treated either as a bill of exchange or a prom-
issory note. (a) And it may be laid down as a general rule,
that whenever it is doubtful, upon the face of an instrument,
whether it was intended as a bill of exchange or a promissory
note, and it possesses the requisites of each, it may be treated
as either, at the option of the holder. Thus, if an instrument
begin, "I promise to pay," &c., like a promissory note, and be
directed like a bill of exchange, it may be treated as either. (6)

the only alternative is, that this instrument is a promissor\- note, and is properly de-
clared upon as such." Erskine, J.: " The instrument is a draft by the company upon
that brancli of it which is carried on in London. It is, in effect, nothing but a promis-
sory note." Maide, J. : " This is a bill drawn by the whole company, acting by their
directors, upon the whole company. It is a promise made by one partner, acting on
behalf of the company, under the order of the directors, that the company shall pay.
It is a promise made by the company at Dorking to pay in London. It is, therefore,
in effect, a promissory note."

(a) In Allen v. Sea, Fire, & Life Ass. Co., 9 C. B. 574, the instrument was in this
form : " Sea, Fire, Life Assurance Company. To the cashier. Thirty days after date
credit Mrs. A. or order with the sum of £311, 9s. %d., claims per ' Susan King,' ia
cash, on account of this corporation " ; — and was signed by two of the directors of the
company. Hdd, to be a promissory note. Wilde, C. J. said : " What is necessary to
constitute a promissory note ? These parties issue this instrument, importing that the
company promise to pay. The note is addressed by the drawers to their own clerk,
^ly brother Shee treats the cashier as a drawer [drawee ? ]. But at the trial it was in-
sisted, for the plaintiff, that the instrument was precisely what we think it is. The
company indicate that they mean to pay, by a direction to their officer to pay, and
they point out to whom payment is to be made. It appears to me that the instrument
contains all that is essential to constitute a promissory note" And see Ellison v. Col-
lingridge, 9 C. B. .570 ; Hasey v. White Pigeon B. S. Co., 1 Doug. Mich. 193. But in
the Marion & M. R. R. Co. v. Dillon, 7 Ind. 404, Perkins, J., delivering the opinion of
the court, said: "If a man draw a bill or order directly upon himself, pay.ible imme-
diately, it is his promissory note, and may be sued on accordingly. In such case he is
the paj-er as well as drawer, and by tiie very act of drawing admits he is to pay, and
that he has not then the money with w-hich to make payment. But where the debt is
due from a company, and it is the duty of one officer or set of officers to allow de-
mands and draw upon another officer who has the custody, and is charged with the
duty of the disbursement, of the company's funds, for payment, such order must, as a
general rule, be presented in a reasonable time for payment." See further, Varner v.
Noblcborough, 2 Greenl. 121 ; Wctumjjka & C R. R. Co. v. Bingham, 5 Ala. 657;
Mobley V. Clark, 28 Barb. 390.

[h] Edis V. Bury, 6 B. & C. 435. Lord Tenterden said : " This is an instrument at

64 NOTES AND BILLS. [CH. IV'.

The words "^w besoin,'^ or "In case of need apply to A. B.,"
are sometimes written after the name of the drawee. This is

least of a very anibij^uous character. In form it is a promissory note, for it contains in
terms a promise to pay the sum mentioned in it ; but then in the corner of it there is
the name of Grutherot, and it appears that his name is also written across the instru-
ment. In that respect, althouj^h it does not in terms contain a re^juest to Grutherot to
pay, yet it resembles a bill of exchange. It is an instrument, therefore, of an ambigu-
ous nature, and I think that where a party issues an instrument of an ambiguous
nature, tlie law ought to allow the holder at his option to treat it either as a promissory
note or a hill of exchange. That being so, I think it was competent to the plaintiff in
this case to consider this as a promissory note ; and if so, the notice of tlie dishonor
was unnecessary." Baylei/, J. : "I think that this was a promissory note, containing
an intimation on the part of Bury that he would pay at Grutherot's house ; and 1
think also, that where a pany frames his instrument in such a way that it is ambigu-
ous, whether it be a bill of exchange or a promissory note, the party holding it is enti
tied to treat it either as one or the other, and that the plaintitt' ought not to be defeated
by the party who framed the instrument being allowed to say that it is a bill of ex-
change." //o//o//(/, J : '■ It seems to me that it was the design of the drawer of this
instrument to hold out to the party taking it that he might treat it either as a bill of
exchange or a promissory note. Besides, the words of an instrument are to be taken
raost strongly against the party using them ; and, therefore, if there be any ambiguity
in the words of this instrument, they ought to be construed favorably for the plaintiff,
and against the defendant who made the instrument. Besides, until Grutherot put his
name to this instrument, it was clearly in terms a promissory note ; and having been
once such, the fact of Ids having afterwards put his name to it as acceptor cannot alter
the luiture of it." Littleclale, J. : " It seems to me that this was a promissory note. It
begins witli the words ' I promise ' ; it contains a promise to pay, and that is the form
of a promi>sory note. But it is alleged that there is something at the foot of the instru-
ment which converts it into a bill of exchange ; a bill of exchange, liowever, is ad-
dressed to another person, and contains a request to the drawee to pay the same. In
order to make this a bill of exchange, the words ' I promise ' must he rejected ; and
those words constitute the essential difference between a bill of exchange and a promis-
sory note. I think that they ought not to be rejected. Suppose they were rejected,
could this instrument then have been declared upon as a bill of exchange before Gru-
therot accepted it ? If it could not, then it was not a bill of exchange at that time ;
and if it was once a promissory note, Grutherot, by putting his name to it, could not
make it a bill of exchange."

In Llovd V. Oliver, 18 Q. B. 471, an instrument was drawn in the following form :
" Two months after date I promi.se to pay to T. K. L." (i)Iaintiff ) " or order, £ 99,l.os.'
"11. Oliver." Underneath was written, on the left hand of the instrument, "J E
Oliver " (defendant). Across it was written, "Accepted, , ;■ -.■ihle S. & Co., bankers,
London, K. Oliver." " E. Oliver " was signed by dcfendani VeW, that the instru-
ment might be sued upon as a bill of exchange drawn by II. 0' r upon, and accepted
by, the defendant. Lord C(i/»;)W/ said : "lam ofopiiiicm thui, this instrument, even
before acceptance, might be treated as a bill of exchange as against Henry Oliver, the
drawer. A*; against the defendant, it is clearly a bill of exchange. It is directed to
John Edward Oliver; that must mean that John Edward Oliver is requested to pay
the sum mentioned at two months after date, although there are no ex]>ress words of
request. The words ' I promise to pay ' need not be rejected ; they are to be cotisidered
as an expression of what otherwise would be inijilied, namely, that the maker will ^ay

OH. IV.] CERTAINTY REQUISITE IN A BILL OF EXCHANGE. 65

for the purpose of pointing out some person to whom the payee
may apply in case the drawee refuses to accept the bill.(^a)

if the acceptor do not. The instrument is ambiguous, and might, no doubt, if the
plaintiff cliose, be treated as a promissory note. This is tlie effect of the decision in
Edis V. Bury." Erie, J.: "As against the defendant, this instrument is dciuly a bill
of exchange. We must construe the language of it according to known mercantile
usage. It has always been the custom, in drawing bills of exchange, to place the name
of the party to whom the bill is directed in that part of the instrument where, in the
present case, the name of John Edward Oliver, the defendant, is placed. According
to the same rule, the word ' Accepted,' followed by a signature, as in the present instru-
ment, impliL-s acceptance of the bill by the party signing. I recollect that it was proved
at the trial that the instrument had never been out of the hands of the parties to it
until it was in its present form ; so tiiat it never could have been simply a promissory
note, as has been suggested. It is not unjust to presume that it was drawn in this form
for the purpose of suing upon it, either as a promissory note or as a bill of exchange."
Crompton, J. : " The instrument contains, in my opinion, a clear direction to John
Edward Oliver to pay, and a clear acceptance by him. It is, therefore, a bill of ex-
change. But it has been decided, and it is most important that the decision should not
be impeached, that equivocal instruments of this kind, possessing the character both of
promissory notes and of bills of exchange, may be treated as either."
(ia) 2 Pardes., n. 341, 348, 404, 421. See Leonard v. Wilson, 2 Cromp. & M- &99.

Vol. I. — E

6o NOTES AXD BILLS. [CH. V.

CHAPTER V.

OF PERSONS WHO MAY BE PARTIES TO NOTES OR BILLS.

There can be no other rule as to those who may assume the
obligations which rest on the makers, drawers, acceptors, or
indorsers of negotiable paper, than that which is derived from
their nature as instruments of business ; namely, that they must .
be under no incapacity to transact business. This incapacity
may be total or partial ; and exactly measured by it is their ina-
bility to bind themselves as parties to bills and notes. Perhaps
no one is incapable of benefiting by a bill or note of which he
is promisee or indorsee. An infant, or married woman, or bank-
rupt may certainly receive a note, although payment should, gen-
erally at least, be made, not to such payees in person, but to
those who have authority to represent them, as guardian, hus-
band, or assignee. (c) So we should say a lunatic might receive
a note ; for althougli a note is not complete until it is delivered
and accepted, and a person wholly wanting in intellect cannot
accept anything, yet if the note were made in good faith and
were in other respects unobjectionable, and if it were for the ben-
efit of the lunatic and laid him under no obligations whatever, it
should be regarded as accepted by him, or by some one for him
as his guardian or trustee. Those who are incapacitated from
effectually making or indorsing promissory notes and bills, in
whole or in part, are infants, married women, persons under
guardianship, lunatics, alien enemies, and bankrupts.

(r) IIolli<liiy V. Atkinson, 5 B. & C. 501 ; Teed v. Elworthy, 14 East, 210 ; Holt v.
Ward, 2 Stra. 937 ; Warwick v. Bruce, 2 Maulc & S. 205, 6 Tuunt. 118 ; Nif.htinjjale
V. Withington, 15 Mass. 272.

CH V.J INFANTS. 67

SECTION I.

OF INFANTS.

All persons are infants, in law, who are under twenty-one
years of age, excc23ting that in some of the States, at least for
some purposes, a woman at eighteen is held to be adult, (c/) All
infants are said to be incapable of entering into contracts, except-
ing for necessaries. And by necessaries are meant, not only
those things which are absolutely essential to life or even com-
fort, but such other things as are wanted by them and arc suited
to their means and their way of life.(e)

This incapacity or disability is intended for their benefit and
protection against their own indiscretion, or the knavery of
others. Hence the exception in respect to necessaries ; for these
a child must have. Hence too the old distinction between the
void and the voidable contracts of an infant ; those being held
to be voidable only which might be for his benefit, while those
were void which could do him no good. But this distinction we
suppose to be practically obsolete ; all the contracts of an infant,
not in themselves illegal, being capable of ratification by him
when an adult, and therefore being voidable only ; for if once
absolutely void, no ratification could give them any force. (/)

{d) Sparhawk v. Buell, 9 Vt. 41 ; Davis v. Jacquirn, 5 Harris & J. 100 ; Ohio Stat-
utes, ch. 59 ; Maine Acts of 1852, ch. 291 ; Laws of Missouri, 1849, p. 67 ; Hartley's
Dig. of Texas Laws, art. 2420.

[e) See 1 Parsons on Cont., pp. 244-246. And see Breed v. Judd, 1 Gray, 455.

(/) See 1 Parsons on Cont , pp. 243, 244. So far at least as regards bills and notes
to which infants are parties, the rule now prevails universally, that they are not abso-
lutely void, but voidable merely at the election of the infant. See Hunt v. ^lassey, 5
B. & Ad. 902 ; Gibbs v. Merrill, 3 Taunt. 307 ; Williams v. Moor, 11 M. & W. 256 ;
Harris v. Wall, 1 Exch. 122 ; Reed v. Batchelder, 1 Met. 559; Aldrich v. Grimes, 10
N. H. 194; Edgerly v. Shaw, 5 Fost. 514 ; Goodsell v. Myers, 3 Wend. 479 ; Tafti-.
Sergeant, 18 Barb. 320 ; Cheshire v. Barrett, 4 McCord, 241 ; Little i'. Duncan, 9 Rich.
55. But see McMinn v. Richraonds, 6 Yerg. 9. It has sometimes been objected, that,
unless the bill or note of an infant bo held absolutely void, it will bind him in the
hands of a bona fide holder for value. But this proceeds upon a mistake. Tlie inca-
pacity of a party to a bill or note is not one of the equities which cannot be set up
against a bona fide holder. In tliis respect a subsequent bona fide holder stands upon
the same footing as the payee, and he must inquire as to the capacity of the parties to
the paper, at his peril. So, too, although it is said that the bill or note of an infant is
not void, but voidable, it is not meant by this that it is valid until avoided, but merely

68 NOTES AND BILLS. [CH. V.

All infant may bind himself for necessaries ; but it may be
doubted on some authorities whether this exception would go so
far as to make good and enforceable his promissory note for tlie
price. (g") The authorities are not in agreement on this subject ;
but on principle we should say that a distinction should be taker,
between a negotiable bill or note and one not negotiable. For-
merly a simple bond given by an infant for necessaries, that is, a
bond for the payment of a sum of money, without penalty and
without interest, might be valid, but not one which provided
either for a penalty or for interest.{/i) Now, no bond would
probably be held obligatory. (/) If a note were given, even for
necessaries, it has been repeatedly held, that while the infant was
responsible on a quantum valebant for the value of the necessa-
ries, his note for the amount was not binding, because this deter-
mined that amount positively, and it was necessary for the in-
fant's effectual protection that this should be open to inquiry. (7)

that it is capable of ratification. Until ratified, however, it has no validitj. The rula
is vei-y accurately stated by Gilchrist, C J , in Ed<rcrly v. Siiaw, 5 Fost. 514. "The
executory contracts of an infant arc said to be voidable, but this word is used in a sense
entirely diftcrent from that in which it is api)lied to the executed contracts of an infant.
In the latter case, the contract is binding until it is avoided by some act indicating that
the party refuses longer to be bound by it. In the former case, it is meant merely that
the contract is capable of being confirmed or avoided, though it is invalid until it has
been ratified." See also the excellent criticism upon the words " void " and " voidable,"
by Bell, J., in State v. Richmond, 6 Fost. 232.

(fj) The only case in England directly upon this point is Williamson v. Watts, 1
Camp. 5.52, at Nisi Prius. That was assumpsit on a bill of exchange against the ac-
ceptor. The defendant pleaded infancy. The plaintiff replied that the bill was accepted
for necessaries, and issue thereon. Upon the case being opened, Sir James Mansfield
said : " This action certainly cannot be maintained. The defendant is allowed to bo
an infant ; and did any one ever hear of an infant being liable as acceptor of a bill of
exchange? The replication is nonsense, and ought to have been demurred to." So
also it is settled in England, that an action will not lie against an infant upon account
stated, though the particulars of the account were for necessaries. Trueman v. Hurst,
1 T. R. 40 ; Bartlett v. Emery, 1 T. R. 42, n. (a) ; Williams v. Moor, 11 AL & W. 25G.
And the reasons would seem to hold equally in the case of a promissory note or bill of
exchange. In New York, too, it has been decided that a imjotiable note given by an
infant for necessaries is not binding. Swasey v. Vanderhcyden, 10 Johns. .33. And in
New Hampshire, McCrillis v. How, 3 N. H. 348 ; Conn v. Coburn, 7 N. H. 368. And
in Tennessee, McMinn i;. Richmonds, 6 Yerg. 9. And, it seems, in New Jersey, Fen-
ton i;. White, 1 South. 100. And in Indiana, Henderson v. Fox, 5 Ind. 489. As to
Kentucky, sec Beeler v. Young, 1 Bibb, 519.

(h) The old cases upon this point arc collected by Sergeant Manning, in a note to
Harrison v. Func, 1 Man. & G. 550.

(i) Sec Beeler v. Yoiuig, 1 BibI), 519 ; McMinn v. Richmonds, 6 Yerg. 'i.

(j) See cases supra, note g. The reasoning upon which these cases proceed ia

en v.] INFANTS. 69

If, however, the action were on a simple promissory note, not ne-
gotiable, or even on a negotiable note which had not been nego-
tiated, an inquiry into the consideration might be made, which
would seem to open the whole question ; and the reason for de-
nying the validity of such a note, while admitting a liability for
the value of tlie necessaries, might seem technical rather than
substantial. Not so, however, if the note were negotiable and
negotiated ; for now it; might pass for value into the hands of in-
nocent tiiird parties, and either its character would protect it
from all inquiry into consideration, which might injure the in-
fant, or for his protection this inquiry might be made, and then
the document would lose tlie chief peculiarity and characteristic
of negotiable paper. (t)

well stated in Mitchell v. >?eynolds, 10 Mod. 85. It was there said, argunido, "that
*n infant could not, either l>y a parol contract or a deed, bind himself even for neces-
saries in a sum certain ; for should an infant promise to give an unreasonable ])rice for
necessaries, that would noi bind him ; and therefore it may be said that the contract
of an infant for necessaries, quatenus a contract, does not bind him any more than his
bond would, but only, since an infant must live as well as a man, the law gives a rea-
sonable price to those who furnish him with necessaries."

(k) It was expressly decided in Swusey v. Vanderheyden, 10 Johns. 33, that an ac-
tion would not lie on a negotiable promissory note given by an infant for necessaries,
after it had been negotiated. And the court said : " A negotiable note given liy an
infant, even for necessaries, is void. This we consider to be the law, and it is the
opinion of respectable writers. (Chitty on Bills, 20, 1 Camp. 553, note.) The reason
given is, that, if the note be valid in the first instance as a negotiable note, the consid-
eration cannot be inquired into when it is in the hands of a honajide holder, and the
infant would thereby be precluded from questioning the consideration. For the same
reasons it has been held (1 T. R. 40), that an infant cannot state an account, as that
would preclude him from investigating the items. It has also been held ( 1 Camp.
552), that he cannot accept a bill of exchange for necessaries." It has been decided,
however, in several cases, that an action will lie on a note given by an infant for
necessaries, while it remains in the hands of the original payee, though it be negotiable
in form. Thus, in Earle v. Reed, 10 Met. 387, it was /icW, that a negotiable note givea
by an infant was not void in the hands of the promisee ; and in a suit thereon by the
promisee, he may show that it was given, in whole or in part, for necessaries, and may
recover thereon as much as the necessaries for which it was given were reasonably
worth, and no more. That was an action of assumpsit on a promissory note, signed
by the defendant in the presence of an attesting witness, and payable to the plaintiiF or
order. It appeared that the defendant was an infant when he gave the note, and that
it was given for necessaries. The action was not brought till after the lapse of more
than six years from the time when the cause of action accrued ; and the question was,
whether the note was sufficient to take the demand out of the operation of the statute
of limitations, under the provision (R. S c 120, s. 4) that the statute of limitations
shall not apply " to any action brought upon a promissory note, which is signed in
the presence of an attesting witness, provided the action be brought by the original
payee, or by his executor or administrator." And the court, after much consideration.

70 NOTES AND BILLS. [CH. V.

All [nfant is liable for his torts in the same manner as an
adult ; but it seems that he is not bound by a bill or note given
in satisfaction for a tort.(/)

It is now quite certain that an infant payee or indorsee can, by
his indorsement, transfer a property in the note to a third party
as against all parties prior to the infant. For though the note is
voidable as against the infant, it is binding upon the other par-
ties ; and the indorsement of the infant is good until he avoids
it,(wi) And it seems that such indorsement may be made by the

held, that it was. Shaw, C. J. said : " The distinction between the contract which
subsists between promisor and promisee, on a note payable to order, but not indorsed,
and that which would subsist between the promisor and an indorsee after an indorse-
ment to a third person, is recognized and illustrated in the case of Thurston v. Blan-
chard, 22 Pick. 18. The difference is most important, as it applies to the present case.
In the former, suppose it a note given on the sale of goods, it is a mere simple express
contract to pay the price of the goods, and is itself rescinded by anything that rescinds
the sale. In the latter, it is an absolute contract to pay the sum stipulated, in which
in general there can be no inquiry respecting the consideration. Under these views wc
consider this note, in the hands of the promisee, as the simple contract of the defend-
ant for the payment of money ; and there being no consideration expressed, the infancy
of the promisor being shown is prima facie a bar to the action. But as the considera-
tion is open to inquiry, we think it is competent for the plaintiti' to show that it was
given for the price of necessaries, in which ho will recover only so much of the note as
shall appear to have been given for necessaries at their fair value, without regard to
the price stipulated to be paid by the minor. This being a note valid as between the
parties, we think it is saved from tlie operation of the statute of limitations, by the
proviso that it shall not apply to any action brought upon a promissory note which is
signed in the presence of an attesting witness, if brought by the original payee." In
Bradley v. Pratt, 23 Vt. 378, an action was brought against the defendant as the
maker of a promissory note, payable to the plaintiti' or order. It ai)peared that, the
defendant being indebted to one L. B. for necessaries, and L. B. being indebted to the
plaintiff, the defendant, at tlie request of L. B., gave the note in question to the plain-
tiff. It was /«/(/, that the plaintiff was entitled to recover. Rcdjield, J. said : " If it
were not for maintaining the unimpeachaltle character of negotiable ])ai)er in regard to
considerati(jn, so that all might safely take it. I do not see why the rights of infants, in
regard to acceptances and notes negotiated, might not be saved by allowing theni, as
an exception to the general rule, to show their infancy, and then for the plaintiff' to
meet it by j)roving the contract to have been given for necessaries. But this has not
been done, and probably could not be done, without too great an infringement of the
rules of law in regard to negotiable paper while cm-rent." It seems that the same rule
prevails in South Carolina. See Dubosc i'. Wheddon, 4 McCord, 221 ; Ilainc v. Tar-
rant, 2 Hill, S. C. 400. But see contra, Bouehell r. Clary, 3 Brev. 194.

(/) Hanks v. Deal, 3 McCord, 257.

(ill) Taylor v. Crokcr, 4 Esp. 187; Grey v. Cooper, 3 Doug. C) ; Jones v. Darch,
4 Price, .'{00. And see Drayton i;. Dale, 2 B. & C. 293 ; Jeune v. Ward, 2 Stark. 326,
1 B. & Aiil. 6.'»3. This (juestion was well considered in Nightingale v. Wilbington, 15
Mass. 272, where Pnrkir, C. J., delivering the opinion of the court, said : " That an
infant may indorse a negotiable jiromissory note, or a bill of exchange, made ^>ayable

CI I. V ] INFANTS. 71

agent or attorney of the infant, or at least, tliat such an indorse
ment is susce{)tiblc of ratification by the infant after he becomes
of age.(«)

Acceptance by an infant, or indorsement, is voidable as against
himself, in tlie same way that the making of a note or drawing
of a bill would be. But if a bill drawn upon an infant were
accepted by him after he had become adult, this acceptance
would be valid. (o) It has been held, that if an action be
brouglit against an infant for goods sold for trade, and a rat-
ification proved, made by him when adult, but after the action
was commenced, this is not enough ; the Court distinguish-
ing it from a ratification or new promise made after suit,
which was permitted to remove the bar of the statute of lim-
itations, and one of them saying expressly that the contract
lor goods sold for trade was not voidable, but void, and there-
fore could not be ratified, although it might be the ground

to him, so as to transfer the property to an indorsee for a valuable consideration, seems
to be well settled in the law merchant, and is noways repugnant to the principles of the
common law. Such indorsement is not like one made by s, feme covert; for a note
payable to her becomes the property of her husband ; and further, her acts are abso-
lutely void, whereas those of an infant are voidable only. It would be absurd to allow
one, who lias made a promise to pay to one who is an infant or his order, to refuse to
pay the money to one to whom the infant had ordered it to be paid, in direct violation
of his promise ; and it would impair the value of such contracts in the hands of infants,
if they were u.nable to raise money upon them, as others may do. Whether an infant
may avoid an indorsement so made, and oblige the promisor to pay to him, is a ques-
tion not arising in this case ; for there has been no countermand or revocation of the
order to pay, which is implied in his indorsement. If an action should be brought
against the infant as indorser for tlic default of payment by the promisor, without doubt
he may avoid such action b}- a plea of infancy. But that is a personal privilege, which
none liut liimsclf can set up in avoidance of any contract made in his favor." Hardy
V- Waters, 38 Maine, 450, is to the same effect. And see Burke v. Allen, 9 Fost 106.

()i) In Whitney v. Dutcii, 14 Mass. 457, where one of two partners in trade was an
infant and the other of full age, and the adult, for a debt of the copartners, made a
promissory note in the nume of the firm, and the infant, after coming of full age, rati-
fied it, it was held good against him. Upon the authority of this case it was held, in
Hardy v. Waters, 38 Maine, 450, that an infant promisee of a negotiable note might
indorse tlie same by an agent or attorney, and that an indorsement so made is valid
until avoided by the infant or his representatives. But Whitney v. Dutch would seem
ro be an authority only for holding that such an indorsement may be made good by
ratification after the infant becomes of age ; not that it is good until avoided. And
we are not certain lliat it is an authority for so much as this, for the making of a note,
as in Whitney v. Dutch, is an executory contract ; but an indorsement, so far as
it operates as a transfer, is a contract executed. See Semple v. Morrison, 7 T. B.
Mon. 298.

(o) Stevens v Jackson, 4 Camp. 164.

72 NOTES AND BILLS. [CH. V.

of a valid new promise. (;;) But if the decision is to be re-
garded as going this length, it cannot, it seems, be law. For
then a bill or note executed bj an infant could never be so
ratified as to support an action. But it is settled by repeated
decisions, not only that this may be done, but that the bill or
note when ratified may be negotiated, and possesses in all re-
spects the same qualities as if executed by an adult, (^y)

(p) Tliomton v. Illingworth, 2 B. & C. 824. Baijley, J. said: " In the case of an
infant, a contract made for goods, for the purposes of trade, is absolutely void, not void-
able only. The law considers it against good policy that he should be allowed to bind
liimself by such contracts. If he makes a promise after he comes of age, that binds
him on the ground of his taking upon himself a new liabilit}', upon a moral considera-
tion existing before ; it does not make it a legal debt from the time of making the
bargain." Holioyd, J. : " There was no legal right capable of being enforced in a court
of law at the time when the action was commenced. "Where the statute of limitations
has run, a new promise revives the debt ah initio, and that is equally' the case whether
the promise is made before or after the commencement of the action. Here no ground
of action, capable of being enforced in a court of law, existed at the time when the
action was brought ; there was no foundation upon which the action could rest. The
new promise was the 'sole ground of action, and not the revival of an old one." Little-
dale, J. : " When the statute of limitations is relied upon, an acknowledgment admits
tlie perpetual existence of the debt, and therefore it suffices whether it is made before
or after the bringing of the action. But the contract of an infant, under such circum-
stances as the present, being void, and not voidable, the promise in this case did not
prove that any legal cause of action existed at the time when the action was com-
menced." So far as regards the point decided, this case has generally been followed
in this country. Merriam v. Wilkins, 6 N. H. 432 (overruling Wright ?;. Steele, 2 N 11.
51) ; Hale v. Gerrish, 8 N. H. 374 ; Ford v. rhillii)s, I Tick. 202 ; Goodridge v. Ross,
6 Met. 487 ; Thing v. Lil)bey, 16 Maine, 55. See contra, Best v. Givens, 3 B. Mon. 79..
But the dicta of some of the judges have been qualified by the later decisions in Eng-
land. See Williams r. Moor, 11 M. & W. 256; Harris v. Wall, 1 Exch. 122. And
Bee next note.

(7) Hunt V. Massey, 5 B. & Ad. 902. This was an action by the drawer against tlic
acceptor of a bill of exchange. It appeared that the defendant was an infant wlien he
accepted the bill, but there was evidence of a ratification after he became of age. It
was objected {inter alia) for the defendant, that the plaintiff ought to have declared
specially, and not on the acceptance; because the defendant "was liable, if at all, not
by reason of his acceptance of the bill, but of a promise made after Ik; had come of
age." Taunton, J. : " Where a voidable contract is made by a party under age, and
ratified after he has attained his full age, is it not usual to declare on the original
promise ? The first promise here was voidable only. As soon ns it wns ratified, it be-
came binding ab initio." Patteson, J. : " If the defendant had j)lendcd infancy spe-
cially, the plaintifl" might have rejilicd, that after he iiad attained the age of twenty-
one years he assented to and ratified and confirmed the several promises in the decla-
ration" Lord Dinman: "The evidence amoimted to a ratification of the original
promise to pay, according to the tenor and c(fcct of the bill of exchange, and might bo
d< (land on accordingly." In Heed v Batcheldcr, 1 Met. 559, it was laid, iliat a nego-
lialilc note made by an infant is voidable, and not void ; and if he, after ';om'\n/^ of age,

OH. v.] INFANTS. 73

What is a sufricicut ratification or confirmation is sometimes
a difficult question. It is a general rule that a promisor cannot'
avail himseli" of his mistake of the law, although he may of
liis mistake of facts. On this ground it might be said, that
if an adult knew that a note was made by him when an infant,
but did not know that it was therefore voidable by him, and
thereupon ratified it, this should be a valid confirmation. There
are, however, authorities which hold that the confirmation must
be made by the adult with knowledge that he is not liable on
the note without such confirmation. (>•) It seems, even if this
be law, that such knowledge will be presumed, in the absence
of any evidence to the contrary. (s)

It seems also necessary that the recognition of the note should
be explicit, and a declaration made that the promisor considers
himself bound to pay the note.(/) If this be done substantially,
it is sufficient, whatever the form may be ; as if one says the
amount is due, and as soon as ho reaches home he will en-
deavor to get the money and pay it.(w) So a declaration of
uitent to pay, together with an authorizing of an agent to pay

promise the payee that it sluiU be paid, the payee may negotiate it, and the holder may
maintain an action in his own name against the maker. That was an action on a
promissory note, made by the defendant, payable to Reed & Dudley or bearer, and by
them transferred to tlie plaintiff. Shaw, C. J. said : " The question is, whether, as
this was a negotial)le note payable to Reed & Dudley or bearer, and ratified by a new
promise to them whilst they remained the holders, they could make a good title by de-
livery to the plaintiff, Robert Reed, so as to enable him to bring the action in his own
name. The new promise to pay was made to Henry Reed, of the firm of Reed &
Dudley. The effect of this was to ratify and confirm the contract, and give it the same
legal effect as if the promisor had been of legal capacity to make the note when it was
made. This made it a good negotiable note from that time, according to its tenor,
transferable by delivery; of course, when transferred to Robert Reed, the plaintiff, he
took it as a negotiable note, and may maintain an action on it. This deprives the
promisor of none of his immunities as an infant, because the law considers him as hay-
ing full capacity when the ratification was made, and without such ratification no action
would lie." So in Edgerly i'. Shaw, .5 Fost. .514, the defendant during infiincy made a
promissory note payable to one Barker or order, and by him indorsed to the jjlaintiff.
Before Barker transferred the note, the defendant, having come of nge, promised him
that he would pay it. Hihl, that the promise to pay Barker was a ratification of the
note, and that tlie indorsee might avail himself of it in an action. And see Goodsellp,
Myers, 3 Wend. 479 ; Lawson v. Lovcjoy, 8 Greenl. 40.5 ; West v. Penny, 16 Ala. 186 ;
Fant V. Cathcart, 8 Ala. "2.5 ; Cheshire?;. Bairett, 4 McCord, 241.

(r) Ilinely v. Margaritz. .3 Penn. State, 428 ; Ilarmer v Killing, 5 Esp. 102.

(s) Tafc V. Sergeant, 18 Barb. 320.

{t) See Martin v. Mayo, 10 Mass 137.

(w) Whitney v. Dutch, 14 Mass. 457.

VOL. I. 7

7-1 NOTES AXD BILLS. [CH. V.

it, who however does iiotliing.(y) So a promise " to pay it as
soon as I can make it, but I cannot do it this year ; I under-
stand the holder is about to sue it, but she had better not," —
was hekl to be such an affirmation of the contract as would
sustain an immediate action ; but this case, we think, goes
very far indeed. (i^) If the promise of the adult be, "All that
is justly your due shall be paid," this will sustain an action
on the note, and the note will put the defendant to the proof
of any injustice of which he would avail himself, (.r) Where
the adult said he thought the note had been paid in whole
or in part, but that his uncle would be there the next month,
and the note should then be settled ; this went to a jury as
evidence of a ratification. (t/) But where an adult, who had
given his note during infancy, made his will, in which he di-
rected hu just debts to be paid, it was held that his executors
were not liable on the note.(z) So, where the adult admitted
that he owed the debt, and said that " the plaintiff would get
his pay," but refused to give his note lest he might be arrested,
this was held to be no ratification of the original promise. (a)
So also, when the adult wrote to the plaintiff, " I consider
your claim as worthy my attention, but not as meriting my
first attention." (6) And where one offered in writing to re-
turn tlie consideration for which he had given his note while
an infant, and added, " If they will not accept of the above
offer I will have to pay them, I suppose, but I shall do so
at my convenience, as it will be nothing less than a free gift
on my part"; this clearly was insufficient to avoid the plea
of infancy, (c)

It is settled that a mere acknowledgment or part payment
will not amount to a ratification. ((^/) But where an infant gave

(t) Orvis V. Kimball, 3 N. II. 314. And sec Hunt v. Massey, 5 B. & Ad. 902
(w) Bol)0 V. Hiinsell, 2 Bailey, 114.
(x) Wri-^ht V. Steele, 2 N. II. 51.
((/) Bay I'. Gunn, 1 Denio, 108.
(;) Sinitli V. Mayo, 9 Mass. 62.

(a) Hale v. Gcrrisli, 8 N. II. 374.

(b) Wiliox V. lioath, 12 Conn. 550.

(f/) Tiinipp r. Fieliler, 2 Esp. 628 ; Iloliliins v. Eaton, 10 N. II. 501 ; Smith (;. Mayq
9 Mass. 02 ; Whitney t;. Dutch, 14 Mass. 457 ; Thompson i'. Lay, 4 Pick. 48; Hinelj
V. Margaiitz, 3 I'enn. State, 428 ; Benham v. Bishop, 9 Conn. 330.

CH. v.] INFANTS. 75

a note, and after coming of age he admitted that the transaction
was just, and that he had given the payee a watch in part pay-
ment, this was held sufficient. (e)

If an adult, after sufficient notice and a reasonable delay and
opportunity, continues to retain property which he might restore,
and for which lie gave, when an infant, his promissory note, this,
both on prevailing, though not uniform, authority, and on good
reason, we should hold to be conclusive evidence of ratifica-
tion. (/) But it wonld be otherwise if the property for which the
jiotc was given was disposed of by the infant before he was of

Where an adult was sued for necessaries received by him while
an infant, and he pleaded in bar that he gave his note for the
amount ; this was very properly held to be a ratification, and in
a sTibscquent action on the note he was not allowed to set up his
infancy in bar.(A) We should be willing to admit that a sub-
mission to arbitration by the adult of the question whether he
was liable or not, did not amount to a ratification, (i) but we

(e) Little v. Duncan, 9 Rich. 55.

( /') In Aldricii v. Grimes, ION. H. 194, where an infant purchased a potash kettle,
irons, leaches, &c., and gave his promissory note for the price, it being agreed by the
jiartics that he might try the kettle and return it, if it did not answer; and the vendor,
after the infant became of age, requested him to return it, if he did not intend to keep
it ; but he retained and used it with the other property a month or two afterwards ; it
was held, that this was a sufficient ratification of the contract, and that an action might
be sustained on the note. And see Kobbins v. Eaton, 10 N. H. 561. So where an in-
fant purchased a yoke of oxen, for which he gave his negotiable promissory note ; and
after coming of age he converted them to his own use, and received their avails ; it was
IielJ, that this was a ratification of the promise, and that an indorsee of the note was
entitled to recover. Lawson v. Lovcjoy, 8 Grccnl. 405. And where an infant puix'hased
land, and gave his note for the purchase-money, and after he became of age continued
in possession of the land and promised to pay the note ; it was held, that this was a rati-
fication of the note. Armfield v. Tate, 7 Ired. 258. And where an infant gave his
note for a horse, payable to A or bearer, and after he was of age kept the horse and
6old iiim, it was held a ratification. Cheshire v. Barrett, 4 McCord, 241. In Thomas-
son v. Boyd, 13 Ala. 419, where an infant, ten days before he attained his majority,
purchased a note, and gave in payment thereof a bill drawn by him upon a third per-
son ; it was held, that his omission to return the note or disaffirm the contract, after he
was of age, warranted the implication that he intended to abide by the contract, and
countervailed the defence of infancy. But in Benham v. Bishop, 9 Conn. 330, it was
held, that the bare retention of the consideration for which the note of an infant was
given, after his coming of full age, was not a ratification.

(g) Thing v. Libbey, 16 Maine, 55 ; Bobbins v. Eaton, 10 N. H. 561.

(h) Best V. Givens, 3 B. Mon. 72.

(i) Benham v. Bishop, 9 Conn. 330.

7fc NOTES AND BILLS. [CH. V

should hold the promisor bound by the award ot such arbitrators
if thej decided that he must pay the note. Where one said he
owed the payee, but could not pay him, and wonld try to get l\is
brother to be bound with him, this, although a recognition of the
debt, is neither a new promise, nor a ratification, nor confirma-
tion of the note.(j)

The new promise or ratification must be made to the promisee
in person, or to his agent authorized to receive it.(/L) If made
to third parties without interest or agency, or even to one who
is an attorney for the promisee in other matters, but not for this
purpose, it is not sufficient. I)

If the ratification or new promise is conditional, as " provided
I receive a certain legacy," or " if I shonld succeed to a certain
estate," or " if I recover a certain sum of money," or " if I
draw a prize in a certain lottery," the plaintiff must show that
the condition has happened or been complied with. So if the
defendant promised to pay " as soon as he should be able," the
plaintiff will be required to show the ability of tlie defendant ;
not, however, an ability to pay ivUhout inconvenience, for evi-
dence that there is property from which the debt might be paid,
or an income from some source which would enable tlie party to
pay, would be sufficient. (>?;)

If the promise be to pay the note in a particular manner, as by
giving a note of a third person for part, and the balance in
money, this, it seems, will be an absolute ratification ; and upon
failure to comply with such special promise, an action may be
lu'ought upon the original notc.(») So if tlic promise be in the
alternative, as, to pay the note in labor within a specified time,
or else in money; this is an absolute ratification, and if the la-
bor be not performed within the time specified, an action .will lie
upon the note.(o)

ij) Ford V. Phillips, 1 Pick. 202.

{!:) Thus, where an individual gave a note durinj^ infancy, and afur lie was of
a^c made declarations to persons, havinjj no interest in or agcney as to the note, of an
intention to pay it, it was hrlfl, that such declarations formed no such evidence of a
promise of payment or ratification of the contract as would render such person lia'de.
Hoii V. Underhill, 9 N. H. 436. And sccGoodscll v. Myers, 3 Wend 479 ; Bigelow
V. Grannis, 2 Hill, 120.

(/) Bijjjelow 1-. Grannis, 2 Hill, 120.

(m) Thompson v. I.ay, 4 I'ick. 48; Everson v. Carpenter, 17 Wend. 419.

(n) Taft V. Ser<,'eant, 18 IJarh. 320; Stokes v. Brown, 4 Chand. 39. See Edgerly r.
Bhnw, 5 Fost. .514.

(o) Edgerly v. Shaw, 5 Fost. .514.

CH. v.] INFANTS. 77

In England, by the statute of 9 Geo. 4, c. 14, s. 5 (Lord
Tenterderi's Act), it is declared "that no action shall be main-
tained wliereby to charge any person upon any promise made
after full age to pay any debt contracted during infancy, or
upon any ratification after full age of any promise or simple
contract made during infiincy, unless such promise or ratifi-
cation shall be made by some writing signed by the party to
be charged therewith." Under this provision it has been held,
(and in this respect the statute has made no alteration,) that
any written instrument signed by the party, which, in the case
of adults, would have amounted to the adoption of the act
of a party acting as agent, will, in the case of an infant who
has attained his majority, amount to a ratification. (/;) But
we very much doubt the correctness of this rule. In a later
case, a learned judge has more correctly, we think, defined a
ratification " to be a consent by a person after he becomes of
full age to be liable for a debt contracted during infancy, ex-
pressing to the effect that he is willing to affirm it and treat
it as valid." (^)

If an infant is a member of a firm at the time when a note
is given in the name of the firm, the mere fact of his continuing
in the firm after he comes of age, without giving any notice
of his intention not to be bound iiy the note, will not amount
to a ratification. (/•) But he will be liable on notes given by
the firm after he comes of age, though he has in fact ceased
to be a member of tiie firm, unless he has given notice of this
fact.(5)

If an infant together with an adult make a joint promissory
note, it would seem that in England the payee may bring his
action upon it against the adult without making the infant
a i)arty defendant. (^) But this has been denied in this coun-
try. (?/)

(p) Harris i^. Wall, 1 Kxch. 122.

(7) } far/in, R , in Mawsoii v. Blane, 10 Exch. 206.

(/■| Crabtree r. May, 1 B. Mon. 289.

(s) Gooflu V. Harrison, 5 B. & Aid. 147.

(0 BurgL'Ss V. Merri'.", 4 Taunt. 468 ; Chandler v. Parkes, 3 Esp 76 ; Jaffrav v.
Frehain. .5 Esp 47.

('/) Slocnin r. Hooker, 12 Barb. 563, 13 Barb. 536 ; Wamsley r. LinJenberger, 2
Rand. 478.

78 NOTES AND BILLS. [CH. V

SECTION II.

OF MARRIED WOMEN.

By the common law of England, which is our common law,
husband and wife are one person, and the husband is that
person ; for most purposes the wife's personal existence being
merged in that of the husband. This rule is qualified some-
what, in this country, by adjudication ; more, however, by re-
cent statutes in several of the States. (y) Indeed, the whole
law of husband and wife may be said to be in a transition
state in this country. The reasons for the old law, most of
which depended upon the feudal system, having disappeared,
there seems everywhere a willingness, if not an effort, to intro-
duce new principles, better suited to our own times and circum-
stances. As yet, however, the common law may be said to be
generally in force, althougli everywhere with some qualification.

A married woman cannot legally make, indorse, or accept
notes or bills, as acting for herself. (i(7) Nor does a divorce
a mensa e.t Ihoro give her this power at common law ; [x) but
a divorce a vinculo wholly annuls the marriage, and all its
incidents and disabilities. Nor has her signature any more
force because she represented herself to be unmarried. (/y) Nor
if she has eloped, and lives in notorious adultery. (~) Nor if
she lives apart from her husband, and has a separate main-
tenance secured to her. (a) And in order to create a cliarge
upon the separate estate of a married woman, tlie intention
to do so must be declared in the very contract which is the
foundation of tlic cliarge, or the consideration must be obtained
for the direct benefit of the estate itself. Tlierefore, where p

(y) Sec 1 Parsons on Cent. 306.

(w) Bixrlow V. Bishop, 1 Eiist, 432, 3 Esp. 26fi ; Cotes v. Davis, 1 Camp. 485 ; Coon
V. Brook, 21 Barl). 546 ; Howe v. Wildes, 34 Maine, 566 ; Connor v. Martin, 1 Stra.
516, s. c. eited in llawlinson v. Stone, 3 Wilson, 5.

(ar) Lewis v. Lee, 3 B. & C. 291. It is otherwise in Massncliusetts. Dean i\ Rich,
irionrl, 5 Pick. 461.

(y) Cannam v. Farmer, 3 Exch. 098 ; Lowell v. Daniels, 2 Gray, 161.

(z) Ilatchett v. Baddeley, 2 W. Bl. 1079.

(a) Marshall v. Rutton, 8 T. R. 545 ; Hyde v. Price, 3 Ves. 437 ; Lean v. Scha/«,
2W. Bl. 1195.

CH. v.] MARRIED WOMEN. 79

married woman signed a promissory note as surety for her
husband, and intended to charge her separate estate, but the
note contained no words to this effect, it was held that the
estate was not liable. (6) Unlike an infant's, her promissory
note or bill, made during coverture, is so utterly void, that
her promise to pay it, made after her disability has terminated
by her husband's death, will not operate as a confirmation, nor
have any force, unless made upon a new consideration, so as to
be binding as an independent promise. (c) Nor can she, like
an infant, convey a good title to a third party by her indorse-
ment. (<i) But if she gave a bill or note for money lent while
married, and then procured a separate estate, and after her
husband's death promised to pay it, it is said this promise will
bind her and her executors. (e) A second indorser cannot in
an' action against him oil the bill dispute the legal capacity of
the payee to indorse, on the ground that she was a married
woman. (/)

(b) Yale v. Dederer, 22 N. Y. 450, 21 Barb. 286. Sec Bullpin v. Clarke, 17 Ves.
365 ; Stuart v. Kirkwall, 3 Mad. 387.

(c) Loyd t;. Lee, 1 Stra. 94 ; Vance v. Wells, 6 Ala. 737, 8 Ala. 399 ; Littlcfield v.
Shee, 2 B. & Ad. 811 ; Meyer v. Haworth, 8 A. & E. 467 ; Eastwood v. Kenyon, 11
id. 438 ; Watkins v. Halstead, 2 Sandf. 311. But see Coward v. Hughes, 1 Kay & J.
443 ; Franklin v. Bcatty, 27 Missis. 347.

{d) Thus, in Barlow v. Bishop, 3 Esp. 266, 1 East, 432, where a promissory note
was given by tlie defendant to a married woman, whom he knew to be sucii, with intent
that she should indorse it to the plaintiff in payment of a debt which she had contracted
to him, in the course of carrying on a trade on her own account by the consent of her
husband, it was held, that the property in the note vested in the husband by the delivery
to the wife, and that no interest passed by her indorsement in her own name to the
plaintiff. And in Savage v. Iving, 17 Maine, 301, it was held, that a note made pay-
able to a married woman is in law a note to the husband, and becomes instantly his
property ; and her indorsement transfers no property in the note. So where an action
was brought by the indorsee of a promissory note, payable to Susan Connor or her
order, and given to her before marriage ; which note, after her marriage and while
covert, she indorsed to the plaintiff; the court were of opinion that the feme covert could
not assign the note, because by act of law it became the sole right and property of her
husband. Connor v. Martin, 1 Stra. 516, s. c. cited in Rawlinson v. Stone, 3 Wilson,
5. See also Shuttlesworth v. Noyes, 8 Mass. 229 ; Commonwealth v. Manley, 12 Pick.
73 ; Cotes v. Davis, 1 Camp. 485. It will be seen, therefore, that there are two rea-
sons why the indorsement of a married woman is void : 1st, Because all contracts and
conveyances of a married woman are void on account of her incapacity ; 2d, Because
a note given to a married woman does not belong to her, but to her husband. But sea
infra, p. 87, note k; for the limitations to this doctrine.

(e) Lee v. Muggeridge, 5 Taunt. 36 ; Vance v. Wells, 8 Ala. 399. See Franklin v.
Beatty, 27 Missis. 347. See 1 Parsons on Cont. 359-361.

(/) Prescott Bank v. Caverly, 7 Gray, 217.

80 NOTES AND BILLS. [CH. V.

A married woman may, however, in this, as in most transac-
tions, act as agent for another, and so she may act for her hus-
band. In that case she should sign, " A (the husband) by B
(the wife)." But if she sign "B (the wife) for A (the hus-
band)," tliis would undoubtedly be sufficient. And if she
merely signed her husband's name, without adding anythmg to
show that it was signed by an agent, perhaps the husband would
be bound. (ir) But if she merely sign her own name, without
anything to indicate that she is acting in behalf of her husband,
this presents a still more doubtful question. Indeed, we are not
aware that it has ever been held, in the absence of any subse-
quent ratification, or other special circumstances, tliat such a sig-
nature would bind the husband. Where a wife indorsed a note
in tins form, it was held that it did not pass the husband's in-
terest, although the note was in form payable to the wife.(/i)
And where a husband authorized his wife to purchase a piece of
land and " give notes for the purchase-money," and the wife pur-
chased tlie land and gave a note for a part of the purchase-
money, signed with her own name merely, it was held that the

husband was not liable on the note.(i)

{g) We are not aware that this point has ever been expressly decided. The recent
case of AVuod v. Goodridge, 6 Cush. 117, contains some well-considcrcd dicta against
the validity of such a signature. The precise question was raised in Shaw v. Emery,
38 Maine. 481 ; but it was unnecessary to decide it, there having been a subsequent
raiifu-ation by the husband. See 1 Parsons on Cont. 95 - 97. We shall advert to
diis ])oint again when we come to speak of agents.

(/() Barlow >;. Bishop, 1 East, 432. This was an action against the maker of a prom-
issory note, made payable to one Ann Parry or order, and by her indorsed to the plain-
tiff. It appeared that Ann Parry was a married woman, carrying on trade at Bir-
mingham in her own name, with the consent of her husband ; and that the plaintiff,
who lived in London, had furnished her with goods to the amount of the note, dealing
with her as a feme sole; that the plaintiff, after much delay, having pressed for pay-
ment, the defendant, with a view to serve Mrs. Parry, gave her the note in question
with knowli dgc of her being married, and with a view that she should pay it over to
the plaintiff, in order to stop his proceedings against her, which she did by indorsing it
over to him. It was held, that the plaintiff could not recover. Lord Keiiijou said : " It
is dear that the delivery of the note to the wife vested the interest in her husband ; and
as he perniitted her to carry on trade on her own account, and this was a transaction in
the course of that trade, if she had indorsed the note in the name of her husband, I am
not |>reparcd to say tluit tliat would not have availed ; as many acts of this nature may
be done by a |)()wer of attorney ; and the jury might have presumed what was neces-
sary in favor of an authority from her husband for this purpo.se. But the indorsement
being in her own name, it is quite impossible to say that she could i)ass away the in-
terest of her husband by it."

(/) Min.ird v. Mead, 7 Wend. G& Sutherlaud, J., in delivering the opinion of the

CH. v.] MARRIED WOMEN. 81

But it is a familiar principle, that a man, cither in his general
dealings or in a particular transaction, may adopt whatever name
he chooses, and he will be bound accordingly. If, therefore, a
husband should put his wife's name to a note given on his own
account, he would be considered as having adopted his wife's
name pro hac vice, and would l)e liable on the note. Upon the
same principle, if the husband clearly authorizes his wife to give
notes on his account and sign her own name, and she does so,
he will be liable. (7) Therefore, if the wife executes a note for
her husband, in his presence, and signs her own name merely,
with his knowledge and consent, he will be bound. (/c) So, if the

court, s.iid ; " The note was not so executed as to bind the defendant. It was signed
with the name of the wife, without any reference whatever, either in the body or signa-
ture, to the defendant, and without purporting to be signed by lier as the agent of, or
on behalf of, her husband. Nothing but proof of a special authority from the husband
to the wife to sign in that manner wouUI make the instrument the note of iier Imsband.
Her authority as agent merely was to give a note in the name of her husband! If an
agent signs his own name, instead of the name of his principal, as a general rule the
principal will not be bound."

( /) Cotes c. Davis, 1 Camp. 48.5. This was an action by the indorsee against the
maker of a promissory note, payable to " Mrs. Carter or order," and indorsed by her in
her own name. Mrs. Carter was a married woman. It was proved that when the note
was presented for payment by a notary, with the indorsement u])on it, the defendant,
said it should be paid in a few days ; and that he afterwards asked for further time,
when the action was commenced and the declaration had been delivered. Upon these
facts, Gurroic, for the defendant, contended that no title to the note passed by the in-
dorsement. I5ut Lord Elleiihorowih said : " The husband may authorize the wife to
indorse bills of exchange or promissory notes as his agent ; and, after the acknowledg-
ments and promises of the defendant in this case, it may reasonably he presumed
against him, that Mrs. Carter had authority from her husband to indorse the note in
question." (1 arrow : "But in that case, the indorsement ought to have been in the
name of the husband." Lord Ellenborow/h : " We may fairly carry the presumption
one step further, and presume that the husband authorized her to indorse notes in the
name by which she herself passed in the world. The defendant is now estopped from
contesting her authority for this indorsement." And sec Prestwick v. Marshall, 7
Bing. 56.5 ; Prince v. Brunatte, 1 Bing. N. C. 435 ; Lindus v. Bradwell, 5 C B. 583 ;
Stevens v. Beals, 10 Cush. 291 (disapproving Savage v. King, 17 Maine, 301) ; Han-
cock Bank v. Joy, 41 Maine, 568.

(k) Prestwick v. Marshall, 7 Bing. 565. This was an action on a bill of exchange
drawn by Lydia Bickerstaff, accepted by the defendant, and indorsed by Lydia to the
plaintiff. It appeared that the drawer of the bill was a married woman, and kept a
school, at which the defendant had placed his daughter. The bill in question wa.s
accepted by tlie defendant, at the request of Mrs. Bickerstaff's husband, for the expense
of his daughter's education. The bill was drawn by the husband, and signed and in-
dorsed by the wife in his presence ; and it was put in that form at the defendant's
request, he considering that his engagement was with the wife rather than the husband.
The bill was afterwards negotiated to the plaintiff by the husband. The court held.
Vol. I — F

82 NOTES AND BILLS. [CH. V.

wife signs in this form, and afterwards the husband, upon being
informed of it, ratifies and confirms the act, this will be equiva-
lent to a prior authority to sign in this form, and will bind
him.(Z) And it should seem, that if the husband carries on

that the plaintiff was entitled to recover. The same point was decided in Menkens v
Peringhi, 17 Misso. 297.

(I) This was expressly decided, after much consideration, in Lindus v. Bradwell, 5
C. B. 583. There a bill of exchange addressed to the defendant by the name of " Wil-
liam Bradwell" (his true name being William David Bradwell) was accepted by his
wife, by writing across it her own name, " Mary Bradwell." There -was no evidence
of any express authority in the wife so to accept the bill ; but on its being presented to
the husband after it had become due, he said he knew all about it, that the bill was a
millinery hill (for which the husband appeared to be liable), and that he would pay it
very .shortly. Held, that he was liable as acceptor. Maule, J. said : " I think the de-
fendant is bound by the acceptance of his wife. The evidence of Henry Lindus shows
that the defendant represented himself to be a person bound by the bill, after his atten-
tion had been particularly called to it. He says he knows all about it, that it is ac-
cepted by his wife, and mentions the particular transaction out of which it grew, and
promises to pay it shortly. The irresistible inference from this is, that he considers the
bill as one that he is liable to pay. He, in effect, says that his wife was authorized by
him to accept this particular bill in the way she did. At any rate, the conversation
fairly admits of that inference. He sees that his wife has written licr own name across
the bill, and recognizes it as done by his authority. The question is, whether it is
competent to a man to give his wife such an authority. Cotes v. Davis, a case that has
been since recognized, seems to be a strong authority upon the subject. But, upon
principle, it seems to me that there is no objection to the plaintift''s recovering upon this
bill. The acceptance is in writing, and therefore satisfies the statute 1 & 2 Geo. 4, c.
78. If a man says to his wife. Accept such a bill drawn upon me, in your name, unless
he intends to be bound by that, he means nothing. Unless such an acceptance operates
to charge him, it has no operation at all. The defendant clearly meant to bind him-
self, if, in point of law, he could do so. It is said that a drawee cannot bind himself
otherwise than by writing his name on the bill. But suppose the drawee, with his own
hand, accepts the bill by writing another name across it, will he not be liable 1 Here
the defendant has, by the hand of his wife, written ' Mary Bradwell ' on the bill. If he
had done that with his own hand, it clearly would have been his own acceptance ; and
I know of no rule of law that makes such an authority void. It is difficult to say,
that, if the defendant had written his true name, William David Bradwell, across the
bill, that would not have been an acceptance that would bind him ; and yet, inasmuch
as that would not be the name in which it was addressed, if the argument of the defend-
ant's counsel is well founded, he would not he liable. I admit that nobody but the
defendant could accept this bill, so as to charge him ; but he has accepted it by the
hand and in the name of his wife ; and that, I think, is a sufficient acceptance to bind
him." Cresswell, J. said : " The jury must be assumed to have found here, that the
wife had authority to accept this bill ; and as the defendant, by his subsequent conduct,
showed that he was satisfied with the mode in which the authority had been exercised,
wc must likewise assume that tlu" jury also found that he authorized her to bind him in
that particidar way. It is by no means an unusual thing for a bill of exchange to be
drawn iijion persons trading under a style that corresponds with the name of no one
member of the existing firm ; and yet bills so drawn and so ficccpted arc perfectly

CH. v.] MARRIED WOMEN. 83

business generally in his wife's name, and authorizes her to give
notes for him in the course of such business, this will render him
liable on notes so given, and signed with the wife's name.(m)
And if a woman holds a note at the time of her marriage, and
afterward indorses it in her maiden name, this will pass the in-
terest of the husband, if the circumstances of the case be such
as to warrant the presumption that the indorsement was so made
with his authority and assent. (w)

In order to hold the husband on a bill or note executed by his
wife as his agent, the wife's authority must be very clearly
proved. (o) It will not be sufficient, it seems, to show that the
wife carried on trade or business, and purchased goods on credit,
with the knowledge and consent of her husband. For he may
be willing to be answerable for the price of goods purchased on
credit by his wife, for the purpose of carrying on the business in
which she is engaged, so long as it is done in such a manner that
he, if she be defrauded or imposed on in the purchase of the
goods, shall not be precluded from showing the fact, as a defence
against the payment for them. But if she be allowed to pur-
chase goods on credit, and give negotiable bills or notes for the
payment of them, he loses this protection. For the moment that
such paper comes into the hands of a bona fide holder for value,
the husband becomes absolutely bound for the payment of it at
maturity, however fraudulent the transaction may be for and on
account of which the paper was given. (/?) And though a trades-
man cannot write, and his wife write for him whatever is requi-
site in his trade, he will not be liable on a bill or note signed by
her in his name, unless there is some evidence that it was signed
by her in respect of his trade. (^) If a husband authorize his

good. So liere, the bill having been accepted, and in this form, by the authority of the
defendant, he is clearly liable upon it."

(in) Abbott V. Mackinley, 2 Miles, 220.

[n] Miller v. Delamater, 12 "Wend. 433.

(o) Goldstone v. Tovey, 6 Bing. N. C. 98.

(p) Reakert v. Sanford, 5 Watts & S. 164. See Krebs v. O'Grady, 23 Ala. 726.

[q) Smith v. Pedley, Bayley on Bills, 2d Am. ed., p. 42. In an action by the
indorsee of a note against defendant as maker, it appeared that defendant could not
Trite, that his wife wrote for him whatever was requisite, and tliat this note was signed
by the wife in his name ; but there was no evidence that the note was given on
account of any concerns of the husband ; it was, however, left to the jury to pre-
sume it was given for the husband's concerns ; and the jury found for the plaintiff.
But on a rule nisi for a new trial, the court thought there was nothing to warrant such
presumption by the jury, and a new trial was granted.

84 NOTES AND BILLS. [CH. V.

wife to draw, accept, and indorse bills in his name, she cannot
delegate this authority to another. Delegatus non potest dele-
gare. But she may direct another person to write her husband's
name for her, in her presence. (r)

Although a note given by a wife to her husband is of itself
altogether void, yet if the husband indorse it over, it is valid as
between this or a subsequent indorsee and the husband. (6-)

A woman may, under some circumstances, be a sole trader.
As if her husband is an alien, and has not been in this country. (<)
Or if imprisonment for crime or desertion have restored to her,
quasi, the rights of a single woman, (w) The rule on this point

(r) Lord v. Hall, 8 C. B. 627. In this case, upon an issue as to the indorsement of
a promissory note by J. S., it was proved that the wife of J. S. had the general man-
agement of his business ; that she was in the habit of drawing:, accepting, and indors-
ing bills and notes in his name ; and that the name of J. S. was indorsed upon tlie nolo
in question by his daughter, by the direction and in the presence of her mother, by
whom the note was afterwards handed to the plaintiff. Held, that it was a question of
fact for the jury, whether the indorsement so made was within the scope of the wife's
authority; and that the evidence warranted them in concluding that it was.

(s) Haly r. Lane, 2 Atk 181. See Knox v. Keeside, 1 Miles, 294.

(t) Kay V. Duehesse de Pienne, 3 Camp. 12.3. See 1 Parsons on Cont. 306, n. (c).
In M' Arthur v. Bloom, 2 Duer, 151, the defendant, being .sued as the maker of two
promissory notes, pleaded coverture. It appeared that she was a native of Prussia,
but had lived in New York for more than seven years; and during that time had carried
on l)usine-;s in her maiden name, as a feme sole. It also appeared that her husband, to
whom she had been married more than twenty years, had continued to live in Prussia,
and by the law of that country could not leave the kingdom without the exjiress per-
mission of the government. Held, that the defendant, under these circumstance.^,
might justly be considered and treated as a feme sole, and that the plaintiffs were there-
fore entitled to recover. Campbell, J. said : " It would be difficult to distinguish tiiis
case from that of Gregory v. Paul, 1.') Mass. 31, except in that case it appeared that tlio
husband had deserted the wife in England, while in this case the reasons of the separa-
tion, and of the wife assuming her maiden name, do not appear. There is in the case
before us, however, another fact, which may be considered of importance. It is, that,
by the laws of Prussia, a passport or permit is required to enable a subject of that
country to emigrate. It may be that such permit would not be given to the hnsliand,
and thus the case would be brought within the rule of many of the English cases, ai
well as the principle upon which the rule was founiled. Thus, when the husband was
an alien enemy residing abroad, the wife was always treated as i\ f-me sole, because it
might well be that he would not be permitted to come into the comitry where she rc-
(iided. So, when the husband was transported, even though for a limited jicriod, the
wife was also treated as a. feme sole, a-i the husband might not be permitted to return,
or might be disposed never to return, even after his tenn of banishment had cx])ired.
In such cases, it is said that it is greatly for the interest of the wife that s\w should be
treated and considered as a, feme sole, or otherwise she could neither sue nor be sued ;
could neither enforce her rights, nor obtain the credit which might be necessary, in ordor
to enable her to make a support for herself"

t„\ Kpo 1 Pqpsnns on Cont. .306. n. (c).

CH. v.] MARRIED WOMEN. 85

may not be well settled in this country, where we have no " cus-
tom of London " ; but the cases in our notes will show in what
way our courts have dealt with this question. (y) In some of the
States, by statute, married women may trade as, and have many
or all the rights of, femes sole.{iv)

If a bill or note be given by a single woman who afterwards
marries, the husband is liable upon it, and they should bo sued
jointly. (.X') But if she dies before a judgment is obtained for
the debt, the husband is no longer liable as such ; but her rep-
resentatives are liable. (//)

Bills and notes possessed by a single woman before and at
her marriage are her choses in action, which the husband may
reduce to his possession and so make his own, or may not.
If he does not, and dies, her right and interest to or in them
are the same as before marriage. (z) If she dies, they are now
assets in the hands of her administrator ; the husband has a
right to be her administrator ; and having in that capacity
collected the notes or bills, he will retain the proceeds for
his own benefit and as his own property. (a) And if he dies,

(w) In Pennsylvania and South Carolina a wife may become a sole trader, and be-
come liable as such, in imitation of the custom of London. See 1 Parsons on Cont.
306, note d ; Wiltliaus v. Ludecus, .5 Rich. 326. In Gregory v. Pierce, 4 Met. 478, the
court declared, that if there be a complete and absolute desertion of the wife by the
husband by his continued absence from the Commonwealth, and a voluntary separa-
tion from, and abandonment of, his wife, with an intent to renounce de facto the mari-
tal relation, and leave her to act as a feme sole, this will enable her to sue, and render
her liable to be sued, as a feme sole. But in Chouteau v. Merry, 3 Misso. 254, where
the husband abandoned his wife in the State of Missouri, in 1821, and voluntarily left
that State and established himself in Arkansas Territory, where he continued to reside,
it was held, that the wife, who continued to reside in the State of Missouri, was not
liable on a note given by her there in 1831. The court said: " Coverture operates a
legal disability to contract, and all contracts of a feme covert are absolutely void. The
facts in this case do not bring it within any of the exceptions. The cases cited from
the English books are where the husbands abjured the realm, or were foreigners resid-
ing abroad. The principles settled in those cases do not apply. If by a removal from
one State to another, or a separate residence in different States, tlie indissoluble con-
nection by which the wife is placed under the power and protection of her husband
could be cancelled, and the parties thereby relieved of their respective liabilities and
disabilities, there would be little need of troubling the legislature or the courts on the
subject of divorces." See Bean v. Morgan, 4 McCord, 148.

(;<;) See the statutes on this subject collected in 1 Parsons on Cont. 306, note.

(x) Mitchinson v. Hewson, 7 T. R. 348.

{y) Ibid.

(z) 1 Parsons on Cont. 28.5, note r.

(a) 1 Parsons on Cont. 285, note s.

VOL. 1. 8

&6 NOTES AND BILLS. [CH. V

the right of taking out letters of admmistratioii upon her un-
settled estate goes to his next of kui, and not to hers. (6) If
she leaves debts contracted when single, for which the husband
is no longer hable as such, he is still liable as her adminis-
trator to the extent of her bills or notes or other choses in
action wliich he has reduced to possession after her death ;
but not for those wliich he reduced as husband, while she
lived, (c)

It has been held, that if he gets actual possession of her
unreduced choses in action after her death, without taking out
letters of admmistration, they are then his property. There
are, however, some legal, although perhaps only technical, ob-
jections to this doctrme.(c?)

What is a reduction to posssession of the wife's bills and
notes is not quite so certain. We should say, any act which
distinctly manifested a purpose of makmg them his own ; as
collecting a note, or demanding payment, or mdorsing, or as-
signuig \i.[e) But we should also say, that either of these
acts might be so done, and accompanied with such declara-
tions or other acts, as to leave the property still the wife's.
And even if the husband collected the money, but collected
it for her, and immediately invested it, in good faith, in other
choses in action in her name, we should say on principle that
these new choses in action would stand in the same right, and
be subject to the same rules of law, as did the bills or notes. (/)

Bankruptcy is not a reduction to possession ; nor, it seems,
can a creditor of the husband obtain possession of the bills or
notes of the wife without the co-operation of the husband. (ij-)
The cases on the subject of a transfer by the husband arc in
some conflict. Perhaps the weiglit of authority may be, that
if a husl)and transfers unreduced choses in action, or gives

(i) 1 I'ursons on Cont. 285, note u.

(d) Wliitaker v. Whitukcr, 6 Johns. 1 12 ; 1 Parsons on Cont. 285, note t.

(e) Scarpellini v. Atchcson, 7 Q. B. 864 ; Tuttle i'. Fowler, 22 Conn. 58.

(/) Sec, to that effect, Stan wood v. Stanwood, 17 Mass. 57; Phelps v. Phelps, 20
Pick. 556 ; Adams v. Braekett, 5 Met. 280 ; Fisk v. Cushmnn, 6 Cnsh. 20 ; Wilder v.
Aldrieli, 2 II. I. .^)18 ; Marston v. Carter, 12 N. II. 159 ; Poor v. Ilazleton, 15 id. 5(4

{(l) Yates V. Sherrin>:;ton, 11 M & W. 42, 12 id 855. And see Marston v. Car,er,
12 N. II. 159; Poor v. Ila/.lcton, 15 id. 564. Bnt sec Shnttlesworth v. Noyes, 8
Mass. 229 ; Hay ward v Hay ward, 20 Piek. 517 : Smith v. Chandler, 3 Gray, 392.

CH. v.] MARRIED WOMEN. 87

authority to a third person to collect them for that person's
own benefit, and such transferee or agent proceeds to collect
the same, and completes this while the husband lives, lie has
the property. But if the husband dies before the collection
and reduction are consummated, the wife's rights revive. On
principle, we should say that the actual transfer of a chose in
action is an actual or a constructive reduction to possessiouj
and is complete as soon as made, whether the husband lives
or dies. But that the right of reducing is strictly marital,
and cannot be transferred by a husband ; that such agent,
therefore, acts only for him, and has no interest in the prop-
erty, unless the husband actually transfers the property in the
chose in action to him, or confirms him in the possession of
the proceeds, and that such agency is therefore terminated by
the death of the husband. (A) The receipt of interest is not
necessarily a reduction to possession ; nor is, it seems, a re-
ceipt of a part of the principal. (i)
\ If a bill or note is given to a married woman, the property
in it is her husband's, so that he alone can indorse it.(j) But
if he does not reduce it to possession, it belongs, at his death,
to his wife, and not to his executors ; and she, and not they,
must sue it, or may indorse it. (A') It has been thought that,

(h) 1 Parsons on Cont., 4th ed., 28.5, note va.

(i) H.art v. Stephens, 6 Q. B. 937 ; Nash v. Nash, 2 Mad. 133 In this last case
the father of a married woman drew a eiieck in her favor upon his bankers for £ 10,000.
The bankers gave lier a promissory note for the £ 10,000. Afterwards, £ 1,000, part
of tlie principal money due on the note, was paid to her husband ; and he also received
the interest due on the note up to the time of liis death. Held, that, upon the hushcind'a
death, tlie wife was entitled to the note as a chose in action which had survived to
her.

( /) ALison V. Morgan, 2 A. & E. 30. And see supra, p. 79, note (/.

(k) Tliis was settled in Massachusetts, upon great consideration, in Draper v. Jack-
son, 16 Mass 480. And see Hayward v. Hayward, 20 Pick. 517 ; Phelps v. Phelps,
20 Pick. 556. The same point was decided in England in the case of Gaters v. Made-
ley, 6 M. & W. 423. And Parke, B., in delivering the opinion of the court, said:
" When a chose in action, such as a bond or note, is given to a feme covert, the husband
may elect to let his wife h.ave the benefit of it, or if he thinks proper he may take it
iiiinself ; and if, in this case, the husband had in his lifetime brought an action upon
this note in his own name, that would have amounted to an election to take it himself,
ana to an expression of dissent on his part to his wife's having any interest in it On
the otlier hand, he may if he pleases leave it as it is, and in that case the remedy on it
survives to the wife, or he may, according to the decision in Philliskirk v. Pluckwell, 2
Maule & S. 393, adopt another coiu'se, ajid join her name with his own ; and in that
CA«e, if he sliould die after judgment, the \Wfe would be entitled to the benefit of the

S8 NOTES AND BILLS. [CH. V

if the husband's money were the consideration of the note,
tlie wife should be held trustee for the husband's representa-
tives. (/) But we think it would remain hers, if the husband,
being solvent, intended in good faith that it should be her
chose in action. (»j) The husband, on such a note, may sue
alone, («) or may join the wife ; {<>) if he sue alone, debts due
from him may be set off; if he join the wife, it seems that
debts due from her before marriage may be set off.(y>)

If a bill or note be given to a wife for her separate use,
and the consideration be her distributive share in an intestate
estate, it becomes, as it is said by the common law, the prop-
erty of the husband. (^) Tliat it would be so, so far that he
alone could indorse, we should readily admit ; yet we cannot
but doubt whether it becomes at once the property of the hus-
band, in the sense of a chose in action reduced to possession.

A bill being drawn payable to a wife, and the husband suing
the drawer, the defendant cannot object that the wife had no

note, as the judgment would survive to her" This doctrine,, therefore, is not incon-
sistent witii tliat stated ante, p. 79, note d. See furtlier. Hart v. Stephens, 6 Q. B.
937; Scarpellini v. Atcheson, 7 id. 86-1; Howard v. Oakcs, 3 Exch. 136; Guyard ».
Sutton, 3 C. B. 153 ; AVihler v. Aldrich, 2 R. I. 518 ; Poor v. Ilazleton, 15 N. H. 564.

(/) In Gaters i». Madcley, supra, Parke, B. said : " Whether tlic executor of the hus-
band, where the money advanced was his, could compel an account from the executor of
the wife, wiio ivcovered on the note, by a bill in equity, is another matter, with which,
in a court of law, we have nothing to do, and which could make no difference in this
case, as it would not vary the right of action on the note." In Draper v. Jactkson,
supra, where the consideration of the note was the sale of real estate belonging to the
wife, ,/ac/cson, J. said : " In considering this question, we except the case of a volun-
tary gift by the husband to his wife ; as when he advances his own money or other
property, and takes for it a note or bond to himself and his wife. This, like every
other voluntary conveyance, would, without doubt, be void as against the creditors of
the husband. But when no such fact apj)ears, and especially when, as in the present
case, the contrary appears, the law seems to require that the wife sliall have the note or
bond, if she survives." And see Adams v. Brackett, 5 Met. 280; Guyard v. Sutton, 3
C. B 153.

(»i) See preceding note. And see ciuses cited supra, p. 86, note /^

(h) Burroiigii v. Moss, 10 B. & C. 558; Sutton i-. Warren, 10 Met. 451. And in
McNcilage v. Ilolloway, 1 B. & Aid. 218, where a bill of exchange was jiayable to a
fiutf soli-, who intermarried before the same was due, it was Iwhl, that tlu; husband
might sue in his own name, without joining the wife, although the latter had not in-
dorsed the bill. But .see, as to this case, Uichards v. Richards, 2 B. & Ad. 447 ; Ga-
ters V. Madcley, G M. & W. 423 ; Hart v. Stephens, 6 Q. B. 937.

(o) I'hilliskirk I', riuckwell, 2 Maule & S. 393.

{/)) Hurrougb r. Moss, 10 B. & C. 558.

(ry) Commonwealth v. Manley, 12 Pick. 173.

CH. v.] PERSONS UNDER GUARDIANSHIP. 89

right to demand })aymeiit of the drawee, and that consequently
there has been no legal demand or presentment. (/•)

Where a wife lent to her husband and two others money which
belonged to her as administratrix, taking their joint note, it was
held that she could not sue this note while the husband lived, but
might sue tlie other parties after his death. (s) But a note given
by tlie luisband alone to the wife during coverture is void, al-
though the consideration was money belonging to the wife at the
time of their marriage. Consequently, the wife cannot maintain
an action on tlie note, after her husband's decease, against his
executor. (^)

Where a note secured by mortgage was made to husband and
wife to securQ the purchase-money of land belonging to the wife,
the husband dying, the note and mortgage went to the wife, and
not to his administrators. (w)

Payment to a married woman of a sum due on a note to her
will not discharge the party making it, unless the payment were
authorized by tlie husband. (y)

There are some rules or principles in relation to indorsement
and acceptance when made by a married woman, or of a note or
bill to a married woman, which we shall consider when we treat,
in a later chapter, of indorsement and acceptance specifically.

SECTION III.

OF PERSONS UNDER GUARDIANSHIP.

These are either infants, of whom we have already spoken, or
those who are under guardianship under our State statutes, as
spendthrifts, drunkards, &c., or the insane. Generally these stat-
utes make sucli persons incapable of entering into contracts. (?t')
If tlieir guardians or trustees sign notes for them, affixing to
their names their office, as "A. B., guardian," tliey are neverthe-

(?) Cathell V. Goodwin, 1 Harris & G. 468.
(s) Richards v. Uic hards, 2 B. & Ad. 447.
{t) Jackson v. Parks, 10 Cush. 550; Sweat w. Hall, 8 Vt. 187.
(u) Draper v. Jackson, 16 Mass. 480.
(v) Byles on Bills, 6tli ed., p, 51.
. («•) Smith V. Spooner, 3 Pick. 229 ; Manson v. Felton, 13 Pick. 206. Sec Chew v.
Bank of Baltimore, 14 Md. 299.
8*

90 NOTES AND BILLS [CH. V

less held j>ersonallv.(a;) One reason is, that the note would oth-
erwise be inoperative, as the guardian cannot bind by such an
instrument the person or the property of his ward. Another is,
that it is still the promise of the signer, and the name of his
office is but a part of his description. Undoubtedly he may
secure himself from personal liability by saying that he promises
to pay out of the ward's estate, and only if that be sufficient.
But such an instrument would not be a regular promissory note.
In a late case, where the guardian sold property of minors, and
took notes payable to his order as guardian, it was held that an
indorsement by him passed the title to a person who received for
value and in good faith, the words guardian, &c. being merely
words of description. (^)

SECTION lY.

OF AGENTS.

A MAN may do by his agent whatever he can do himself, and
his agent can do for him.(2r) And any person can be the agent
of another, who is physically and mentally capable of executing
the agency. At least the common personal disabilities do not

(x) In Thacher v. Dinsmore, 5 Mass. 299, where one p^ave a negotiable note, as guar-
dian to an insane jierson, it was held, tiiat lie was liable in his individual capacity, after
his guardianship was discharged. Parsons, C. J. said : "If an action is maintainable
against any person, it must be the defendant ; for the guardian of an insane person can-
not make his ward liable to an action as on his own contract, by any promise which the
guardian can make. Neither tan the defendant be sued in his cai)acity of guardian,
so as to make the estate of his ward liable to be taken in execution ; for the judgment
is not against the goods and estate of the ward in his hands, but against himself. A
creditor may sue the insane person, who shall be defended by his guardian, and in that
case, judgment being against the insane person, it may be satisfied by his property.
The defendant's description of himself in the notes as guardian cannot vary the form
of the action ; but it is for his own benefit, that, on payment of the notes, he may not
be precluded from charging the moneys paid to the account of his ward. If the defend-
ant, therefore, was ever lialjle to this suit, he must continue liable, notwithstanding tho
discharge of the guardianship ; for by that tho plaintiff's rights cannot be affected,
whose claim is on the defendant personally, and not on his oflicial character." Forstcr
V. Fuller, 6 Mass. .OS, and Robertsons v. Banks, 1 Smedcs & M. 666, aro to the same
effect.

{y) Thornton v. Hankin, 19 Misso. 193.

{:) Conibes's Case, 9 l{cp. 75.

CH. v.] AGENTS. 91

iucapacitate one from acting as agent, as infancy or coverture. (a)
Nor is any particular form or mode of appointment necessary,
nor any especial way of executing the agency, other than that
which the authority itself designates.

It seems formerly to have been held, that only the formal exe-
cution of an instrument in the name of the principal by the
agent, sufficed. And this is still the more correct way. A, be-
ing the agent of B, should sign any paper which he executes as
B's paper, " B by A," and not " A for B." In the first case the
execution is B's, by his instrument A ; in the other it is A's, for
his employer B; or in other words, the. technical rule was, that
in the first case it was B's promise by A, and in the latter, A's
promise made at the request of B. Now, however, it seems to
be well settled, that the actual intent of the parties, if it is ob-
vious and certain, prevails over this distinction, and determines
whether the act was that of the principal or of the agent. (6)

It seems to be common among commercial men, at least in
England, for an agent, as A, to sign "A by procuration of B,"
where B is the principal. But this is inaccurate ; for it might
import that B was the agent, signing by procuration for A the
principal, (c)

It lias been doubted whether a note, executed by an agent by
signing the name of the principal merely, without adding any-
thing to indicate that the signature was by an agent, would be
binding on the principal. (c?) Undoubtedly there are grave ob-

(a) Co. Litt. .52 a.

(b) See 1 Parsons on Cent. 47, note x.

(d) "Wood V. Goodridge, 6 Gush. 117. This was the case of a mortgage deed and
note made under a power of attorney under seal, by simply signing tlie name of the
principal opposite to a seal in the case of the deed, and in the case of the note by
simply writing the principal's name at tlie foot. It was not necessary to decide the
point, the court being of opinion that the power, though very general in its terms, did
not confer authority to mortgage, nor to borrow money and bind the principal by a
promissory note. But the question of the manner of execution was much considered,
and upon that point Fteiclur, J. said : " It should appear upon the face of the instru-
ments that they were executed by the attorney, and in virtue of the authority delegated
to him for this purpose. It is not enough that an attorney in fact has authority, but it
nmst appear by the instruments themselves, wlaich lie executes, that he intends to exe-
cute tliis authority. The instruments should be made by the attorney, expressly as
such attorney ; and the exercise of his delegated authority should be distinctly avowed
upon the instruments themselves. Whatever may be the secret intent and purpose of
the attorney or whatever may be his oral declaration or profession at the time, he does

92 NOTES AND BILLS. [CH. V.

jections to such a mode of execution, and it ought never to be
adopted ; but still we think it would be valid, and the agent's
authority might be shown by parol. (e)

It is conceded, that if the name of the principal is signed by
an agent in the presence of the principal and by his direction,
this will be sufficient to bind the principal, though there be noth-
ing on the face of the note to show the agency. (/)

If the agent sign the note with his own name alone, and there
is nothing on the face of the note to show that he was acting as
agent, he will be personally liable on the note, and the principal
will not be liable. {^) And although it could be proved that the
agency was disclosed to the payee when the note was made, and
that it was the understanding of all parties that the principal,

not in fact execute the instruments as attorney, and in the exercise of his power as
attorney, unless it is so expressed in the instruments. The instruments must speak for
themselves. Though the attorney should intend a deed to be the deed of his principal,
yet it will not be the deed of the principal, unless the instrument purports on its face
to be his deed. Tiie authority given clearly is, that the attorney shall execute the deed
as attorney, hut in the name of the principal." See ante, p. 80, note (j ; 1 Parsons on
Cont 9G, note 97.

(e) This appears to have been regarded as clear in several cases, which have never
been questioned. Tims, in Neal v. Erving, I Esp. 61 , it was held, that where one person
sub.scribcd a policy of insin-ance with the name of another, proof of his having done it
in many instances is sufficient to charge him whose name is so subscribed, without pro-
ducing any power of attorney. So also, in Watkins v. Vince, 2 Stark. 368, it was held,
that evidence that the son of the defendant had, in three or four instances, signed bills
of exchange for his father, is sufficient, in an action against the father on a guaranty,
to warrant the reading of an instrument purporting to be a guaranty by the father in
the handwriting of the son. And see Llewellyn "• Winckworth, 13 M. & W. 598;
Cash V. Taylor, Lloyd & W. Merc. Cas. 178 ; Barber v. Gingell, 3 Esp. 60 ; Brigham
V. Peters, 1 Gray, 139. It may be added, that Sergeant Manning (a very high author-
ity), speaking of the manner in which an agent should sign, says : "The proper mode
of signing by procuration is, either to use the name of the principal only, or to sign,
' A. B. (the principal), by, or by the procuration of, C D. (the agent).' " See the note
to Davidson v. Stanley, 2 Man. & G. 721.

( f) This was decided in Morse v. Green, 13 N. H. 32. And the rule is there stated
in general terms, that if the defendant have authorized another to subscribe his name tO
a note, the fact that the signature was placed there by an agent need, not api)ear on tho
face of the note ; and parol evidence is admissible to prove that the name of a person
who ai)pears to be one of the makers of a note was not written by him, but by another
person by his direction ; as such evidence neither limits nor enlarges the terms of the
contract. And sec Wood i'. Goodridge, supra ; Haven v. Hobbs, 1 Vt. 238.

(7) There is an apparent (but only apparent) exception to this rule, when tlic prin-
cipal carries on business in the name of an agent. In that case, the name of the agent
is the name of the principal, pro hac vice. Bank of Uochester v. Monf<:ath, 1 Denio,
402.

CH. v.] AGENTS. 93

and not the agent, should be held, this will not generally be suffi-
cient, either to discharge the agent, or to render the principal
liable on the note.{h) But the principal will be liable, under
such circumstances, on the original consideration for which the
note was given, (i) And there may be cases in which the agent

{h) See 1 Parsons on Cent. 48, note a. This principle was established upon much
consideration in the leading case of Stackpole v. Arnold, 11 Mass. 27. That was an
action against the defendant as maker of three promissory notes. The notes were
signed by another person in his own name, and there was nothing on the face of them
to indicate any agency, or that the defendant had any connection with them. At the
trial, the person who signed the notes testified tliat they were given for premiums upon
policies of insurance procured by him in the office kept by the plaintiff, at the request
and for tlie use of the defendant, on property belonging to him ; and that the witness
acted merely as the factor of the defendant, and intended to bind him by the premium
notes. The judge instructed the jury, that, " if they believed the notes to have been
made and signed for and in behalf of tiie defendant, their verdict ought to be for tho
phiintift'." It was held, that the evidence was improperly admitted, and the instruction
was erroneous. The same principle was reafKrmed in Bedford Com. Ins. Co. v. Co-
veil, 8 Met. 442, and Taber v. Cannon, 8 Met. 4.56, though the facts in these cases were
not so strong. In Bedford Com. Ins. Co. v. Covell, the plaintiffs, on the application
of S., who was C.'s agent, caused " S. for C. to be insured on ship G.," and S. gave
the plaintiffs a promissory note for the premium, signed by himself alone, without
mentioning his agency, and charged the premium in account with C, and had it al-
lowed. S. was afterwards declared bankrupt, and the plaintiffs proved their note as a
claim against him, and received a dividend upon it. Held, that the plaintiffs could not
maintain an action against C. to recover the balance of the note. In Tabcr v. Cannon,
A, who was authorized, as agent, by the owners of a whale-ship, to fit her for sea and
purchase supplies for her voyage, bought the supplies of B ; B drew a bill of exchange
for the amount of the supplies, payable to his own order, and addressed " to the agent
and owners " of the ship. A accepted the bill by writing his name thereon, without
any addition indicating his agency. Held, in a suit by an indorsee of the bill against
the owners of the ship as acceptors, that, admitting the authority of A to bind them
by accepting for them as their agent, yet he had not bound them by the acceptance
as made, and that he alone was liable as acceptor. The same rule is well settled
in England. Thus, in Thomas v. Bishop, 2 Stra 955, a bill was drawn upon tho
defendant, as " Cashier of the York Buildings Company." The defendant accepted
the bill by simply writing his own name. It was field, that lie was liable as acceptor.
The court said : "A bill of exchange is a contract by the custom of merchants, and
the whole of that contract must appear in writing. Now here is nothing in writing to
bind the company, nor can any action be maintained against them upon the bill ; for
the addition of cashier to the defendant's name is only to denote the person with more
certainty." See Shelton v. Darling, 2 Conn. 43.i, and post, p. 102, note b.

((■) Pentz V. Stanton, 10 Wend. 271 ; Emerson v. Providence Hat Manuf. Co., 12
Mass. 237; Melledge v. Boston Iron Co., 5 Cush. 158. But where a party, dealing
with an agent, takes his promissory note, with a full knowledge of his agency and of
the liability of the principal for the debt for which the note is given, he thereby dis-
charges tlie principal ; so that he cannot maintain an action against him for the origi-
nal debt. Paige v. Stone, 10 Met. 160; Hyde v. Paige, 9 Barb. 150; Ranken v.
Deforest, IS Barb. 143.

94 NOTES AND BILLS. [CH. V.

would not be personally liable on the bill or note, though there
should be nothing on the face of the instrument to indicate the
agency. Thus, if an agent, in the execution of his agency, in-
curs a debt on behalf of his principal, and draws upon his prin-
cipal a bill for the amount thereof, in favor of the creditor, it has
been held, that the agent will not be liable on the bill, if it was
the understanding of the parties that he acted as agent merely,
and did not intend to make the debt his own. The principal ob-
ject of drawing the bill, in such case, is to certify to the princi-
pal the amount due the creditor ; and the agent may, it seems,
defend on the ground of a want of consideration. (j) Of course
this will not apply to a subsequent bona fide holder without
notice. And if an agent draws a bill on a third person in his
own name, but there is sufficient on the face of the instrument
to inform the drawee that he is to pay the amount on account
of the principal, and not on account of the drawer, the drawee,
having paid the bill, will not be entitled to maintain an action for
money paid against the agent. Thus, where the agent of the
owners of a steamboat drew a bill in his own name, and directed
the drawee to charge the amount " to account of steamer Walter
Scott," it was held that the agency of the drawer was apparent
on the face of the bill, in consequence of this direction, which
negatived the idea that he was to be personally bound. (A;)

It has indeed been held, that whenever it is doubtful from the
face of a bill or note whether it was intended to operate as the
personal engagement of the party signing it, or to impose an ob-
ligation upon some third person as his principal, parol evidence
is admissible to show the true nature of the transaction. (/) The

(_;") Roberts v. Austin, 5 Whart. 313, 2 Miles, 234 ; Knimbliaar i". Ludclinfr, 3 Mart.
La. 6-10 ; Wolfe i;. Jcwett, 10 La. 383 ; Lincoln v. Smith, 11 La. 11. But see May-
hew V. Prince, 11 Mass. 54 ; Newhall v. Dunlap, 14 Maine, 180; Soworhy w. Butcher,
2 Cromp. & M. 368. In Hicks v. Hinde, 9 Barli. ."528, where an agent drew a hill on his
principal for a debt due from the princip.il to the payee, adding the word " apont " to
liis signature, and the payee knew that the drawer was autliorized by his ])rincipal to
draw the bill as his agent, and it was the understanding of all parties that the dr.iwei
signed only as agent, and not with a view of binding himself; it was held, that the
drawer was not personally liable on the bill. And see infra, p. 'JO, note n.

(k) Mahcr v. Overton, 9 La. 115.

(/) Kean v. Davis, 1 N. .1. G83 ; Lazarus v. Shearer, 2 Ala. 718; Wctunipka, &c. \\. Co.
V. Bingham, 5 Ala. 657 ; Mechanics' Bank i'. Bank of Columbia, 5 Wheat. 326 ; Owings
i;. Grubbs, 6 .1. ,J. Marsh. 31 ; Webb v. Burke, 5 B. Mon. 51 ; Brockway v. Allen, 17
Wend 40; Early v. Wilkinson, 9 Grat. 68. In the note to Rathbon v. Budlong,. Pent/

en. v.] AGENTS. 95

cases, however, which have held this doctrine, arc not entirely
agreed as to the principle on which it rests, nor do its limits ap-
pear to be well defined. Perhaps, as a generid rule, it should be
received with some distrust.

If an agent make a note in his own name, and add to his sig-
nature the word "agent," but there is nothing on the note to

V. Stanton, &c., 1 Ara. Lead. Cas., p. 453 (p. 605 in the 3d ed.), the rule is stated thus :
" Where there is a doubt or ambiguity on tiie face of the instrument, as to whether the
person means to bind himself, or only to give an evidence of debt against an institntion
or body, of which he is a representative, parol evidence is undoubtedly admi.ssible; not,
indeed, to show the intention of tlie parties to the contract, but to prove extrinsic cir-
cumstances by which the respective liability of the principal and agent may be deter-
mined ; such as to which the consideration passed and credit was given, and whether
the agent had authority, and whether it was known to the jiarty that he acted as agent.
The extent of the principle as to the admissibility of parol evidence appears to be this :
Where the names of both principal and agent appear on the instrument, and the con-
tract, though in the name of the agent, discloses a reference to the business of the
principal, so that the instrument, as it stands, is consistent with either view, of its being
the engagement of tlie principal or of the agent, parol evidence is admissible, in a suit
against the agent, to charge him, by showing either tliat credit was given to him, or
that he had not authority to bind the principal by that contract, which wouUl create a
consideration for a liability on his part, or to discliarge him by proving that the con-
sideration passed directly to his principal, as, that credit having been given to the prin-
cipal alone, the consideration of the note signed by him was an antecedent liability on
the part of the principal, and that the other party knew that he acted as agent, and
thus destroying all consideration for a liability on his part ; and in like manner, to
charge or discharge the principal by similar circumstances." Mechanics' Bank v. Bank
of Columbia, 5 AVheat. 326. In Eaton v. Bell, 5 B. & Aid. 34, where commissioners
under an enclosure act drew bills upon their bankers, requiring them to pay the sums
therein mentioned on account of the public drainage, and to place the same to their
Account as commissioners ; it was held, that the commissioners were personally liable
to their bankers for the amount of the bills. But it seems that it might have been
otherwise, if the direction had been to place the same to the account of the enclosure.
Bai/ley, J. said : " The form of the draft is to pay A. B. or bearer, on account of the
public drainage. The persons, therefore, who signed that order, assert that the money
is to be applied to the purpose of the public drainage. The draft then goes on, ' and place
the same to our account as commissioners of the enclosure act.' Therefore the money
is to be placed to their debit in the account which they have as commissioners. It does
not say, 'place the same to the account of the enclosure,' but ' to our account as com-
missioners.' Now the defendants must have known what they had collected, and what
means they had of collecting more; and they ought to have taken care, before tliey
drew drafts, that they had money to reimburse the persons who advanced money on
those drafts." In Fuller r. Hooper, 3 Gray, 334, it was hM, that a bill of exchange,
stamped in the margin, " Pompton Iron Works," and concluding thus, " Which place
to account of Pompton Iron Works, W. Burtt, Agent," purported on its face to be the
bill of the Pompton Iron Works, and was binding on the person carrying on the manu-
facture of iron in that name, if Burtt was his authorized agent. And see Tripp v.
Swanzey Paper Co., 13 Pick. 291.

96 NOTES AXD BILLS. [CH. V

indicate who is the principal, the agent will be personally liable,
just as if the word agent were not added. (w) It has, however,
been held that an indorsement in this form will not render the
agent liable as an indorser, because it will be considered as in-
tended only to pass the property in the paper, and therefore as
equivalent to an indorsement " without recourse." (w)

(m) Pentz v. Stanton, 10 Wend. 271 ; Savage v. Rix, 9 N. H. 263; Thurston v
Mauro, 1 Greene, 2.31.

(n) Mott V. Hicks, 1 Cowcn, 513. Accordingly, in Babcock v. Beman, 1 Kern. 200,
where a note was payable to the order of " K. Beman, Trcas.," and he, being tho
treasurer of a corporation with authority as such to receive and transfer the note, in
dorsed it, " H. Beman, Treasurer," and delivered it to the plaintiffs, who received it
on account of a debt due them from the corporation, witii notice of the capacity in
whicii Beman acted ; it was held, that he was not individually liable as indorser of tho
note. Denio, J. said : " Tiie question is, whether this was a qualified indorsement, pass-
ing, as it clearly did, the interest in the note, but without any other contract on the
part of the defendant. This question was decided against the plaintiffs, in the Supreme
Court, more than thirty years ago, and has since been acquiesced in by the profession,
and I have no doubt has been extensively acted on by business men. In Mott o.
Hicks, 1 Cowen, 513, the only material question was, whether a witness named House-
man was competent to testify, he having been objected to on the ground of interest.
He had indorsed a note made by a manufacturing corporation, payable to his order,
adding to ids name the word agent. His name as payee in the note had no addition
annexed to it, but it was proved that the plaintiff was privy to the consideration
upon which it was given and indorsed ; and that consideration was a debt due from
tlie corporation. If Houseman was personally liable on this indorsement, lie was
interested, and incompetent as a witness: otherwise he was not. The court held, that
it was a qualified indorsement, operating as a transfer of the note, but not contain-
ing a contract to pay. Chief Justice Savage dissented, on the ground that it had
not been proved, except by Houseman himself, that he was agent of the company, and
that the note was payable to liim individually. Li these two particulars, the situation
of tills defendant is more favorable than that of Houseman. It has been held, that an
indorsement of a note to the cashier of a moneyed corporation, by adding the word
cashier to his n.ame in the indorsement, is a transfer to the cor])()ration, where that was
the design of the transaction. (VVatervliet Bank t'. White, 1 Denio, 608.) So this
note, before the indorsement, may be considered as having been the property of tho
nianufactuiing corporation, it being substantially averred that such was the nature and
intent of the transaction upon which it was given. The case of Mott r. Hicks is there-
fore a direct adjudication upon this very point, by the highest court of original jurisdic-
tion in this State; and it has been acquiesced in and regarded as tho law for a great
length of time. The question was in the highest degree practical, and of more fre-
quent occurrence than almost any other. It moreover related to ct)mmcrcial paper, in
respect to which it is of the utmost importance that the decisions of the courts should
i)e stable, so that they may be relied on with confidence by the community. We should
be, therefore, nio.st reluctant to de|)art from the principle of (he case, even could it bo
successfully questioned as not in harmony with legal analogies or antecedent cases.
We think, however, it is not subject to any such criticism. It has been followed in
principle in Brockway v. Allen, 17 Wend. 40, and in Hicks v. Hinde, 9 Barb. 528

CH. v.] AGENTS. 97

If an agent of an incorporated company make a note, begin-
ning, "1 promise," etc., and sign it, " A. B., agent of coiiir

pany," it is quite well settled, that the company, not the agent,
will be liable on tiie note.(o) And the same rule applies, a for-

aiid has not been questioned, so far as we know, by any case" And see Collins v.
Johnson, IG Ga. 458. See also, Sdfra, p. 94, note j.

(u) l)esi)ateh Line of Packets v. Bellamy Manuf. Co., 12 N. H 205 ; McCall v. Clay-
ton, Busbee, 422 ; rroclor v. Webber, 1 D. Chip 371 ; Roberts v. But(ou, 14 Vt. 195 ,
Shelton ('. Darling, 2 Conn. 435 ; Johnson v. Smith, 21 Conn. 627. In Ilovey v. Ma-
gill, 2 Conn. 680, where the defendant, being the agent of a corporation, gave a note in
the form stated in the text, Swift, C. J. said : " When an agent duly authorized sul)-
scribes an engagement, in such manner as to manifest an intent not to bind himself,
but to bind the principal ; and wiien, by his subsciiption, he has actually buiuid the
])riucipal, tlicu it is clear that the contract cannot be binding on him personally. It
will be agreed that no precise form of words is required to be used in the signature;
that every word must have an effect, if possible ; and that the intention must be col-
lected from the whole instrument taken together. Who can entertain a doul)t, upon
reading the note in question, that it was the intent of the defendant to bind the com-
pany, and not himself? It is, however, said, that he has made use of the expression
'I promise,' wiiich is, in terms, a jiersonal undertaking; but he has qualitied it by add-
ing his character of agent, wiiich unequivocally shows that he did not mean to bind
himself Again, it is said, he might have added this merely to distinguish the company
from his private concerns. This is a far-fetched supposition indeed. If such had been
the object, it could much more effectually have been answered by a proper mode of
keeping his accounts. I can see no good reason for the addition of ' agent,' but to ren-
der the note obligatory on the company, and exclude all idea of individual liability.
This is the plain lajiguage of the transaction ; and we ought to give it the obvious mean-
ing, and not entrap men by the mere form of words. This mode of signing the note
will fairly admit of this construction : I, as agent of the company, pledge their credit,
or give their promise, to pay the note ; or, the company by me as their agent, promise
to pay it. But if we consider the word agent as merely descriptio persome, we give it no
operation, and really expunge it from the writing. We are bound, however, to give ef-
fect to every word, if possible ; and the only way to give this word any effect is, to
make the note binding on the company." But see Macbean v. Morrison, 1 A. K. Marsh.
545 ; Kean v. Davis, 1 N. J. 683, 1 Spencer, 425 ; Wyman v. Gray, 7 Harris & J. 409 ;
Hills V. Bannister, 8 Cowen, 31 ; Brockway v. Allen, 17 Wend. 40, Rathbon v. Bud-
long, 15 Johns. 1 ; Barker v. Mechanic Ins. Co., 3 Wend. 94. In Mare v. Charles, 5
Ellis & B. 978, an order to pay to the drawer's order at three months after date a sum
of money " for value received in machinery supi)lied the adventurers in H. mines," was
directed " to Mr. W. C." W. C. wrote upon it, " Accepted for the company, W. C,
Purser." Held, that this made W. C. persoiuUly liable as acceptor of the bill. But
this decision proceeded upon the ground, that, the bill having been directed to W. C.
alone, the company could not be bound by his acceptance. Lord Campbell said : " The
bill is drawn on the defendant as an individual ; it is addressed ' to Mr. W. Charles.'
It is true, it is stated to be drawn for value supplied to the adventurers in a mining
company ; but it is drawn on Charles as an individual. He writes upon it, 'Accepted
ibr the company ' ; and he signs this ' William Charles, Purser.' If the words of an
instrument will reasonably bear an interpretation making it valid, we must not construe
them so as to make it void. Benignce Jliciendce sunt inter preiationes, ut res magis valecU

Vol. I.— G

98 NOTES AND BILLS. [CH. V.

tiori, to the case of public officers or agents appointed to dis-
charge public trusts and duties. (/?) Whether a note made in the
same form, by the duly authorized agent of a private person,
would be the note of the principal, or of the agent, is not so cer-

quam pereat ; et verba intentioni, non e contra, debent inservire. If a bill be drawn on mc,
I must accept it so as to make myself personally liable, or not at all ; for no one but
the drawee can accept. I think, therefore, that when a drawee accepts a bill, nnlcss
there be on the face of the bill a distinct disclaimer of personal liability, he must be
taken to accept personally. In the present case, the acceptance is not per proc. tho
company. If it were, perhaps that might have some weight as amounting to such an
absolute disclaimer of personal liability. It appears on the fiice of the bill that it is
drawn on account of a debt of the company ; it is very likely that the drawee accepted
on account of the company, and on an engagement from them that tlicy would keep
him in funds to meet the bills. In that case he may well be said to accept for tiie com-
pany ; but then it is an acceptance making himself personally liable." Cokridcje, J. :
" The bill was addressed to the defendant, and no one else could accept it. He wrote
upon it, ' Accepted,' and signed his name. He now says, in effect, that it was not ac-
cepted at all, and that what he wrote amounted to a refusal to accept ; and this he saj's
is the effect of the words ' for the company.' The question then is, Are we to construe
this ut res magis pereat, as not an acceptance 1 No ; we must construe it, ut res magis
valeat ; and, as my lord has pointed out, it is easy so to construe it." Wightman, J. :
" The bill is drawn on the defendant for value received by a company. The defendant
accepts it, adding to the word accepted, ' for the company.' He may have accepted it
on their account, and relying on their liability to him; but, whatever was his motive,
he accepted it, and cannot now ask us to construe the acceptance so as to be inopera-
tive. Unless he accepted the bill, drawTi upon liimself personally, in the sense that he
rendered himself person.ally liable, he did not accept it at all ; on any other construc-
tion, what he wrote on the bill must have amounted to a refusal to accept it. But it is
clear that he did intend that the bill should not be dishonored, but accepted ; and
we must construe what he has written, ut res magis valeat." See Slielton v. Darling, 2
Conn. 435. And see Nicholls v. Diamond, 9 Exch. 154. So in Rew v Pettct, 1 A. &
E. 196, where a parish vestry resolved to borrow money from H. N., who advanced it,
and took promissory notes for the amount, made by the defendants, who were church-
wardens and overseers, and who added to their signatures the titles of their respective
offices ; it was held, that the defendants were personally liable. But this also was u])on
the ground that the parish could not be bound ; and that, unless the defendants were
held personally, the note must be treated as waste paper. Sec further, Cliick v. Tre-
vett, 20 Maine, 462 ; Fogg v. Virgin, 19 Maine, 352 ; Pomeroy v. Slade, IG Vt. 220.
In Bradloe v. Boston Glass Co., 16 Pick. 347, a note was given in this form : '• For
value received, we, the subscribers, jointly and severally, promise, &c., for the Boston
Glass Manufactory." It was signed by II., G., and K., without annexing to their
names any words designating a connection with the corporation ; Imt it was entered in
the note-book of the corporation as a note due from the cor|)oration, and the interest
thereon was annually paid by them. It was held, that it was the note of the individuals
by whom it was signed, and that it did not bind the corporation. Stiaw, C. J. said :
"As the forms of words in which contracts maybe made and execulcd are almost in-

ip) Jones V. LcTombc, 3 Dallas, 384 ; Tutt v. Hobbs, 17 Misso. 48r f Fox v. Drake,
g Cowcn, 191.

CH. v.] AGENTS. 99

tain. We think, however, it would be the note of the princi-
pal. (ry) If such an agent give a note, beginning, " I promise,"
<fec., and signed " A, for B," it has been decided, in several cases,
that this is the note of the principal, and not of the agent. (r)

finitely various, the test question is, whctlicr the person signing professes and intends to
bind himself, and adds the name of another to indicate the capacity or trust in which
he acts, or the person for whose account his promise is made; or whether the words
referring to a principal are intended to indicate that he does a mere ministerial act, in
giving effect and authenticity to the act, promise, and contract of another. Does the
person signing apply the executing hand as the instrument of anotlicr, or the promising

and engaging mind of a contracting party 1 The words ' for the Boston Glass

Manufactory,' if they stood alone, would perhaps leave it doubtful and ambiguous,
whctlicr they meant to bind themselves as promisors to pay the debt of the company,
or whether they meant to sign a contract for the company, by which they should be
bound to pay their own debt ; though the place in which the words are introduced
would rather seem to warrant the former construction. But other considerations arise
fi-om other views of the whole tenor of the note. The fiict is of importance, that it is
signed by three instead of one, and with no designation or name of ofSce indicating
any agency or connection with the company. No indication appears on the note itself,
that either of them was president, treasurer, or director, or that they were a committee
to act for the company. But the words 'jointly and severally ' are quite decisive. The
persons are ' we, the subscribers,' and it is signed Jonathan Hunnewell, Samuel Gore,
and Charles F. Kupfer. This word ' severally ' must have its effect ; and its legal ef-
fect was to bind each of the signers. This fixes the undertaking as a personal one. It
would be a forced and wholly untenable construction to hold that the company and
signers were all bound ; this would be equally inconsistent with the terms and the ob-
vious meaning of the contract." See Trask v. Roberts, 1 B. Mon. 201 ; Emerson v.
Providence Hat Manuf. Co., 12 Mass. 237; Mann v. Chandler, 9 Mass. 335 ; Packard
i;. Nye, 2 Met. 47 ; Shotwell v. M'Kown, 2 South. 828.

(q) It was so decided in Ballon v. Talbot, 16 Mass. 461.

(?•) Long V. Colburn, 11 Mass. 97 ; Frost v. Wood, 2 Conn. 23; Robertson v. Pope,
1 Rich. 501 (overruling Fash v. Ross, 2 Hill, S. Car. 294 ; Taylor v. McLean, 1 Mc-
Mnllan, 352; Moore v. Cooper, 1 Speers, 87). But see, contra, Offutt v. Ayres, 7
T. B. Mon. 356 ; Musgrove v. McIIroy, 5 J. J. Marsh. 646 ; Garrison v. Combs, 7 J. J.
JLarsh. 84. In Cook v. Sanford, 3 Dana, 237, the note began, "We promise," &c.,
and was signed, " A, for B & Co." Held, that A was not personally liable. In Early
V. Wilkinson, 9 Grat. 68, the note began, " I promise," &c., and was signed, " Robert
H. Early [for Samuel H. Early]." Held, that the note upon its face was binding upon
Robert H. Early personally. Otherwise, if the name of Samuel H. Early had not been
enclosed in brackets. In Rice v. Gove, 22 Pick. 158, an action was brought against
the defendant on a note beginning, " For value received, we jointly and severally
promise to pay," &c., and signed, "Patton & Johnson, for Ira Gove." The plaintiff
having proved that P. & J. were authorized to give notes as the agents of the defend-
ant, the court held, that this must be construed as the note of the defendant. Deiccy, J.
said : " The only doubt in the present case arises from the introduction of the words
'jointly and severally' in the notes. These words, it is said, indicate a personal prom-
ise by Patton & Johnson, and can have no proper application to a promise by the
defendant alone. If there were not other words in the contract indicating more
strongly the purpose to bind the defendant than these do the contrary design, perhaps

100 NOTES AND BILLS. [CH. V

Tliero is no especial mode, recognized by law, of giving au-
thority to make or accept or indorse negotiable paper. It may
be given by parol. It may be inferred from the course of busi-
ness and employment ; and from the fact that similar transac-
tions have been repeatedly recognized by the principal as done
by his authority. Such presumptions frequently arise in refer-
ence to the acts of a wife, a servant, a son, or a clerk. A jury
would not be warranted in drawing this conclusion from one or
two instances of such recognition ; but only from such and so
many as would make the belief of such authority strong and
reasonable. (s)

The question of autliority, or of evidence of authority, so far
as it relates to the obligation of the principal, must always be de-
termined by the principles which lie at the foundation of the law
of agency ; namely, that a person is bound by the acts of another

the words 'jointly and severally ' should control the construction to be given to these
notes. But we think that it may be fairly urged, that the form of the signature of
these notes so clearly manifests the purpose to be the execution of a contract binding
solely upon the defendant, that, if either is to be rejected as surplusage and of no effect,
it should be the words 'jointly and severally.' The case of Bradlee v. Boston Glass
Company, 16 Pick. 347, is supposed, by the counsel for the defendant, to bear strongly
upon the question. It does so upon the effect to be given to the words 'jointly and
severally,' as used in tlie body of these notes ; but upon a particular examination of the
facts of that case, it will be seen that the signatures to that contract were by the indi-
vidual names of those wlio were alleged to have acted as agents, and were accompanied
with no designation of any agency annexed to their names, the only reference to any
BUch agency being found, if anywhere, in the body of the notes."

(s) In Prcscott v. riinu, 9 Bing. 19, where it appeared that the defendants' confiden-
tial clerk had been accustomed to draw checks for them ; that in one instance, at least,
they had authorized him to indorse ; and in two other instances had received money
obtained by his indorsements in their name ; it was Iwkl, that a jury was warranted iu
inferring that the clerk had a general authority to indorse. And see Trundy v. Farrar,
32 Maine, 225. In Valentine v. Packer, 5 Penn. State, 333, in an action on a note of
a firm, conducting iron- works, signed by one T., it was shown that T. was the son of
one member of the firm and ne])licw of two others ; that he was their bookkeeper and
manager at the time the note was given ; that it was not customary for clerks to give
notes, tliougli one witness knew of its being done by T. Ilthl, that this evidence was
sufficient to entitle the plaintiff to read the note to the jury. In Paige v. Stone, 10 Met.
160, in a suit against two principals on a negotiable note, of which (hey had no knowl-
edge before action brought, given in their names by their agent, who had no express
authority, nor any authority by necessary implication from the nature of his business,
to give such note; it was hrlJ, that evidence of tlie agent's having given two similar
notes, to the first of which one only of the principals afterwards assented, and the last
of which, for a small «um, the |)rincij)als directed to be settled after they were sued
upon it, was not sufficient to prove the autliority of the agent to bind them by the third
note. Sec Odiorne j;. Maxcy, 13 Mass. 178, 15 Mass. 39.

CH. v.] AGENTS. 101

as his agent, if, in the first place, he has actually authorized the
act, or if, in the second place, lie has authorized those with whom
the agent dealt on his behalf to believe, as fair and reasonable
men, that the authority had been actually given. On tiiis last
ground, where an acceptor's defence was, that the drawer had
forged the acceptor's signature, evidence that the defendant had
previously paid such acceptances was held to be proof of his au-
thority to the drawer to accept for him.(/)

A ratification of an act has, in general, the same effect as
a previous authority ; (u) and this ratification may be by parol
only. And it is an almost universal rule, that the ratification
must be made with a full knowledge on the part of the principal
of the facts affecting his rights. (y) And if a person does an act
purporting to act as agent for another, a third person cannot
afterwards adopt that act, and make the person who did it his
agent. (i6') Nor will any ratification, however effectual to bind
the principal, discharge the liability of the agent, if he had not
authority to represent the principal when he did so. (2;) It is,

(0 Barber v. Gingcll, 3 Esp. 60. In Cash v. Taylor, Lloyd & W. Merc. Cas. 178,
in an action against the acceptor of a bill of exchange, it appeared that the ac-
ceptance was not in the handwriting of tlie defendant himself, but in that of a brother-
in-law of his, named Alfred Tallent ; that other bills, accepted by Tallent in the
defendant's name, had been paid by him ; and that a letter had been written by the
defendant's authority, before the date of the bill sued upon, to the holder of another
similar bill, who was pressing the defendant for payment ; in which letter it was stated
that the defendant had long been in the habit of indorsing bills for Tallent, and that
he had given that person authority to act generally for him in his dealings with London
houses ; and that he, the defendant, would therefore of course take up the bill which
was the subject of the letter, if the holder enforced payment of it. But it also appeared
that the plaintifj"liad not had any communication with, or knowledge of, the defendant,
and was not aware that any other bills had been accepted for him by A. Tallent. It
was held, that the defendant was not liable. The court said : " The plaintiff knew
nothing of the letter given in evidence, or of the acceptance of similar bills for the
defendant by Tallent ; he did not, therefore, take the bill in question on the faith of
Tallcnt's authority to accept. That being so, he was bound to make out that Tallent
had either a general authority to accept, subsisting unrevoked at the time of this accept-
ance, or a particular authority to accept the bill in question. It is not contended that
there was any proof of the latter ; and the letter furni>hed no proof of a general au-
thority : it cannot be carried beyond the particular bill to which it referred." See
""Jewcllyn v. Winckworth, 13 M. & W. .598.

(u) Bigelow'i^. Denison, 23 Vt. 564.

(v) Nixon V. Palmer, 4 Scld. 398 ; Fletcher v. Dysart, 9 B. Mon. 413.

{w) See Wilson r. Tumman, 6 Man. & G. 236.

(x) Rossiter v. Rossiter, 8 Wend. 494.
9»

10-2 NOTES AND BILLS. [CH. V.

however, generally true, that if the prhicipal is bound, the agent
is not.(y)

It is a general rule, m regard to simple contracts, that parol
evidence may hi received to make unnamed principals liable,
or to gi\e them the benefit of the contract ; for this leaves
the actual party liable as before, and therefore cannot be con-
sidered as varying the contract. But such evidence cannot be
received to discharge the actual signer on the ground of his
agency, for this would be to vary the contract, (c^) In reference
to negotiable paper, however, the rule, as we have seen, is
more strict. For parol evidence is not admissible, either to
discharge an actual signer, or to charge one whose name does
not appear on the instrument, (a) The reason for this is, that,
from the nature and purpose of negotiable paper, no person
should be held as a party to it whose name is not written
upon it, as such paper ought to contain in itself all its own
evidence, and thus be independent of extrinsic proof.

One who puts his name on negotiable paper will be liable
personally, as Ave have seen, although he acts as agent, unless
he says so, and says also who his principal is ; that is, unless
he uses some expression equivalent, to use Lord Ellcnhorous^li's
language, to " I am the mere scribe." For if the construction
may fairly be, that while he acts officially, or at the request
of others, or for the benefit of others, yet what he docs is still
his own act, it will be so interpreted. Thus, if a bill direct
the proceeds to be placed " to the account of the Durham
Bank, as advised," (6) or where the drawee is called " cashier "

(y) Mann v. Chandler, 9 Mass. 335 ; Shelton v. Darling, 2 Conn. 435.

(z) Sec 1 Parsons on Cont. 48, note a.

(a) See SM/Jja, p. 93, note h ; per Metcalf, J., in Fuller v. Hooper, 3 Gray, 334.

(6) In Lcadbitter v. Farrow, 5 M. & S. 345, an agent of the Diirliani Bank, to
whom tlie plaintiff sent a sum of money, in order to procure a hill u])ou London,
drew a hill in his own name for the amount, and sent it to tlie plaintifl'; it was lield,
that the agent was linhlo as drawer, although the plaintiff knew that he was agent,
and supposed that the hill was drawn i)y him as sucli and on account of the Durham
BaTik, to whi(;h the agent paid over the money. Lord Ellcnboroiir/h said : "Is it net
an universal rule, that a man who puts his name to a bill of exchange tiierchy
makes himself personally liahlc, unless he states upon the face of the hill that lio
suhscrihes it for another, or hy procuration of another, which are words of exclu-
sion ? Unless he says plainly, ' I am the mere scribe,' he becomes liable. ?ow,
in the jjrcsent case, although the plaintiff knew the defendant to be agent to the
Durham Bank, he might not know but tiiat he meant to offer his own responsibility.

CH. V.J AGENTS. 103

of a certain company, and direction is given that tlic money
be placed to the account of that company, and the bill is ac-
cepted by the drawee by direction of the company, tlie drawee
is still personally held.{c) Nor does it generally seem to make
any difference that the agency was actually known to the parties
who hold the agent liable.

Tlie peculiar character of negotiable paper has induced courts
to enforce the liability of an agent somewhat strictly ; as if
a broker, who sells goods for an owner, draws on the buyer
in favor of the owner, if this bill be dishonored, it has been
held that the owner may sue the broker on it, as drawer •,{d)
and generally, it seems, an agent who draws in favor of his
principal, and directs the money to be put to the debit of his
principal, will nevertheless be held personally liable to his prin-
cipal, unless he protects himself by appropriate and definite
language, (e)

Every person, it is to be presumed, who takes a bill of the drawer, expects that his
responsibility is to be pledged to its being accepted. Giving full eifect to the circum-
stance that the plaintiff knew the defendant to be agent, still the defendant is liable,
like any other drawer who puts his name to a bill without denoting that he does it in
the character of procurator. The defendant has not so done, and therefore has made
himself liable. I do not say whether an action would lie against the Durham Bank,
because, considering it in either way, it would not, as it seems to me, affect the liability
of the defendant." Holroyd, J. said : " I apprehend that no action would lie on the bill,
except against those who are the parties to it." In Sowerby v. Butcher, 2 Cromp. &
M. 368, a broker at N. shipped a cargo of coals, and drew a bill of exchange on the
consignees in favor of the vendors. The bill being returned by the drawees in conse-
quence of the shortness of the date, the vendors, by the direction of the broker, drew
another bill at a longer date. It was taken to the broker's counting-house for signature,
but the broker having left N. in consequence of embarrassments, the defendant, his
brother, who had come there to investigate his affairs, at the request of the vendors and
for their convenience, signed the second bill generally. Held, that he was personally
liable on the bill. It was objected for the defendant, that he did not profess to act, nor
could be treated, as an agent; and that the bill, as to him, was without consideration.
Wc tiiink there was much force in the objection. See further, Beckham v. Drake, 9
M. &, W. 79; Beckham v. Knight, 1 Man. & G. 738.

(d) Le Fevre v. Lloyd, 5 Taunt. 749. In this case the court said : " The broker by
giving this bill put an end to all doubt as to the buyer's responsibility. The vendore.
upon receiving it, in consequence of their good opinion of Lloyd, dismiss from their
minds all care about the solvency of the purchaser."

(e) In Goupy v. Harden, 7 Taunt. 159, it was held that an agent purchasing for-
eign bills for his principal, and indorsing them to him, without qualification, is liable
to his princijjal on his indorsement, however small be the commission which he gets
upon the purchase And Dallas, J. said : " The defendants might have specially

104 KOTES AND BILLS. [CH V.

It sliould be remarked, however, that the soundness of these
decisions has been questioned, and it woidd seem with some
reason, Mr. Chitty says : " These decisions, subjecting an agejit
to personal liability, as regards tliird persons, ignorant of the
circumstances under which tlie agent became a party, are
consistent with the other principles of law applicable to these
instruments. But it seems questionable whether even at law
it is correct to allow an employer to recover from liis agent
under such circumstances, because in general, between original
parties, it may be shown as a good defence at law, that the
bill was drawn, accepted, or indorsed for the plaintiff's accom-
modation, or for a purpose or consideration which has failed
or been satisfied ; and to allow such a principal to recover at
law against his agent, is only to compel the latter to resort
to a court of equity for relief, which might just as well be
afforded at law, and a court of equity \n\\ certainly afford
relief." (/) This reasoning lias been adopted in Pennsylvania,
and the authority of the English decisions to the contrary en-
tirely repudiated. It is there held that a factor wlio remits
a bill to his principal in payment of goods sold on his account,
and indorses the bill, does not thereby become personally re-
sponsible to his prmcipal, if he receives no consideration for
guaranteeing, and does not expressly undertake to do so.(^)

indorsed this bill sans recours, if tlicy had tliouglit fit so to do, hut they have not done
it." And sec Sim])Son v. Swan, 3 Camp. 291 ; Heubach v. Mollniann, 2 Ducr, 227.

(f) Chitty on Bills, 9tli ed., p. .34. The learned author eiics in support of this
proposition, Kidson v. Dilworth, 5 Price, .564, and Ex parte Uohinson, 1 Buck, 113.
In the foi-mer ease, a solicitor, who was employed by an administrator in {getting: in
debts due to the estate of the intestate, having i-eceived money in the course of his
afiency, which it was his duty, according to his instructions, to remit to his employer,
jirocurcd for that purpose a banker's bill, which was accidentally drawn in his favor, so
iliat it became necessary that he should indorse it, and he did so. Ihbl, that ii court
of e(|uity would restrain an action commenced against him on such indorsement,
whether brought by the immediate indorsee, or by any other person who had notice of
the facts. In Ex parte Robinson, it was held, that when a person employed to get a
1)11! discounted, being unable to effect it without indorsing it, therefore indorsed it in
his own name, he was entitled to be iiidcmnificd by his cm])loyer, though the name of
the latter was not on the bill.

(y) Mechanics' Bank v. Earp, 4 IJiiwle, 384, 389 ; Sharp v. Emmet, :> Wliart 288.
In the last case, Sirijmnt,^. said : " I'ormcrly there seems to have been in thf Ijiw mer
chant a severe and inflexil)lc rule ap])lied, that whenever an agent or factor indorsed a
hill, he was liable on his indorsement, unless lie took care at the time to limit his rf •
Bponsibilily, by stating that it was 'sans recours,' or by jirocuration, or some similar

CH. v.] AGENTS. 105

In a case in the House of Lords, on appeal from Scotland,
where a factor, under a del credere commission, sold jroods
and took accepted bills from the purchasers, which he ex
changed for a hill on London, payable to his own order ; and
this last he hidorsed and transmitted to his principal ; it was
held that the factor was answerable for the amount of the bill.
" being personally liable, under his commission del credere, to
satisfy his principal the price of the goods sold."(/f)

An agent is personally liable on the contract he makes, if
he makes himself so expressly, or if he transcends his author-
ity, or if lie departs from its terms and directions, or if lie
conceals his character of agent, or if he purposely conceals
the name of his principal, or, perhaps, if he does not actually
state the name of his principal ; and these general principles
would no doubt apply to the acts of an agent in relation to
negotiable paper. It is expressly held, that the rule which
denies to an agent generally the power of delegating his au-
thority to another applies to promissory notes. (i) But this
rule must be understood with proper limitations. An agent
cannot delegate any portion of his power requiring the exercise
of discretion and judgment ; but it is otherwise as to powers
or duties merely mechanical in their nature. Therefore, if
an agent be empowered to bind his principal by an accom-
modation acceptance, he may direct another to write it, having
first determhied the propriety of the act himself; and it will

mode. The authorities cited by Mr. Justice Rogers, in Mechanics' Bank v. Earp, and
those referred to in the argument here, sufficiently show this. But it is equally certain,
that in more modern times the severity of this rule has been relaxed ; and it is now
held, that between the agent and the principal, the agent remitting u bill for payment
with his indorsement is not obliged, in order to exempt himself, to do so in exj)ress
terms on the face of tiie indorsement. Such a restriction is objectionable in many in-
stances, as calculated to throw a doubt over the responsibility of the prior pai-ties, and
to discredit them with those who may see the indorsement. The rule is, that the in-
dorsement of the factor must be construed by the circumstances under whidi it is made ;
and unless there be something to show that in indorsing he intended to render himself
personally liable, or that he was bound to do so, it ought not to be so intended. A
factor remitting a bill to his principal in payment of goods sold on his account, and
receiving no consideration for guaranteeing the bill, nor undertaking to do so, is not
personally responsible merely on his indorsement "

(A) Mackenzie v. Scott, 6 Bro. V. C. 280. But see as to this case, Sharp i". Emmet,
s?\pra ; Lcverick v. Meigs, 1 Cowen, 64.5.

(i) Emerson ;;. Providence Hat Manufacturing Co., 12 Mass. 237; Brewster v. Ho-
^art, 15 Pick. 302.

too NOTES AND BILLS. [CH. V.

biiid tl\e principal, it seems, although it names the delegate,
and not the agent, as the one exercising the power. (j) Nor
does the rule, it seems, apply to a partner. (^)

A general authority to transact business, even if it be ex-
pressed in words of very wide meaning, will not be held to
include the power of making the principal a party to nego-
tiable paper. Tlierefore, a power given to a copartner, upon
the dissolution of the firm, to receive all debts owing to, and
pay those owing from, the late partnership, does not, it has
been held, authorize him to indorse a bill of exchange in the
name of the partnership, though drawn by him in that name,
and accepted by a debtor of the partnership after the disso-
lution. (/) And a power of attorney given by an executrix,
to act for her generally as executrix, does not authorize the
accepting of bills of exchange in her behalf, thougli for debts
due from her testator. (w) So if full authority be given to
an attorney to ask, demand, and receive all money that may
become due to the principal on any account whatsoever, and
to " transact all business," this will not authorize the attorney
to indorse bills received in payment, (w) So a power of attor-
ney authorizing an agent to demand, sue for, recover, and
receive, by all lawful ways and means whatsoever, all moneys,
debts, and dues whatsoever, and to give sufficient discharges,
does not authorize him to indorse bills for his principal. (o)

Where a power of attorney gave tlie agent full powers as to
the management of certain specified real property, with general

(j) Commercial Bank i;. Norton, I Hill, 501. And sec ante, p. 84, note r.

(k) Tillicr v. Wliiteiiead, 1 Dallas, 269. In this case it was resolved, " that one of
two i)artucrs may give an autliority to a clerk under tlie firm of tiie liousc ; and that
the clerk may, in consequence tiiercof, accept hills, and sign or indorse notes, in the
name of the company. And it was said by M'Kmn, C. J., that this case could not bo
properly compared witli the case of an attorney without power of substitution ; for the
attorney cannot exceed the letter of his autliority, being notiiing more tium an agent
himself But each partner is u principal ; and it is implied in the very nature of their
connection, that eacii has a right to depute and ajipoiiit a clerk to act for both, in mat-
ters relative to their joint interest."

(/) Kilgour V. Fiiilyson, 1 II. Bl. l.'>5. Sccjws/, pp. 144-147.

(w) Gardner v. Baillie, 6 T. U. 591, overruling Howard v. Baillie, 2 H. Bl. 018, so
far as the two cases are inconsistent.

(h) Hogg V. Snnith, 1 Taunt. 347 ; Hay i'. Goldsmid, 2 J. P. Smith, 79, cited also
in Hogg V. Hnaitli, I Taunt. 347.

(o) Murray i;. Esist India Co., 5 B. & Aid. 204.

CH. v.] AGENTS. 107

words extending those powers to all the property of the principal
of every description, and, in conclusion, authorized the agent to
do all lawful acts concerning all the principal's business and
affairs, of what nature or kind soever, it was held that this did
not authorize tlie agent to indorse bills of exchange in the name
of the principal. (;?) But where A, the proprietor of a cotton
factory, gave a letter of attorney to B, conferring on him the
agency of the factory for five years, empowering him to purchase
any articles for the use of the factory, and engaging to become
responsible for all contracts entered into by him in the capacity
of agent, for machinery and cotton for the use of the factory ; it
was held, that A was liable on a promissory note given by B, as
the agent of A, and in his name, for money borrowed by the for-
mer, within the term, and to effect the object, of his agency. It
may be found difiicult to reconcile this decision with the current
of authorities upon the subject, and we have some doubts whether
it can be supported. (r/)

So carefully is this authority watched, that, where power is
given to do some things with regard to promissory notes or
bills, it cannot be enlarged by construction to do other, though
somewhat similar, things. Thus, the authority to draw is not,
of itself, an authority to indorse bills ; (r) nor would it be to
accept them. (5) And an authority to draw, indorse, or accept
for a party, does not permit the agent to bind his principal
together with others as copartners ; (t) nor to put his name to
mere accommodation paper for other parties. (m) The presump-

(p) Esdaile v. La Nauze, I Younge & C, Exch. 394.

(q) Frost v. Wood, 2 Conn. 2.3.

(r) Robinson v. Yarrow, 7 Taunt. 455 ; Murray v. East India Co., 5 B. & Aid. 204;
Prescott V. Fiinn, 9 Bing. 19.

(s) Attwood V. Munnings, 7 B. & C. 278, 1 Man. & R. 66.

(I) Attwood V. Mannings, 7 B. & C. 278, 1 Man. & R. 66. And see Stainback v.
Read, 11 Grat. 281.

(«) Wallace v. Branch Bank, 1 Ala. h&5. In this case it was held that an attorney,
"with full power and authority, for me, aiid in my name, to draw or to indorse prom-
issory notes, to accept, draw, or indorse bills of exchange," has no authority to draw
or indorse notes for the mere accommodation of third persons. So a power of attor-
ney, " in my name and behalf to sign and indorse notes payable and negotiable at the
branch bank," &c. "as well for discount as collection, and to check all money which
may be deposited therein to my credit, from time to time, until this authority is re-
Toked," was held not to authorize an original indorsement as security for a third per-
son. Nichols V. State Bank, 3 Yerg. 107; Nichol v. Green, Peck, 283. But where

108 NOTES AND BILLS. [CH. V.

tion of the law limits such authority to the acting in the prin-
cipal's own business, and for his own benefit. (y) But if an
agent be authorized generalhj to execute notes in the name
and for the benefit of his principal, and he executes notes in
his principal's name for the fraudulent purpose of raising mon-
ey for his own use, such notes will, nevertheless, be binding
upon the principal, in the hands of a hotia fide holder, (ir)

a witness testified that he was the general agent of a firm, intrusted with the sole
charge of their business, and that as such he had been in the habit of drawing drafts
and making notes and indorsements for them, this was held suflScient to go to the jury
as a ground for inferring that he had autliority to bind his principals by au accommo-
dation acceptance, tliough the power conferred on him by the articles of copartnership
did not extend so far, and he had never attempted to bind the firm in that way. Com-
mercial Bank v. Norton, 1 Hill, 501.

(y) North River Bank v. Aymar, 3 Hill, 262; Stainback v. Read, 11 Grat. 281 ;
Stainer v. Tysen, 3 Hill, 279 ; Stainback v. Bank of Virginia, 1 1 Grat 269. But see
Bank of Bengal v. Macleod, 7 Moore, P. C. 35 ; Bank of Bengal v. Fagan, 7 Moore,
P. C. 61.

(w) North River Bank v. Aymar, 3 Hill, 262. In this case, P. gave J. a letter of
attorney autliorizing the latter, among other things, to draw and indorse notes in the
name and for the benefit of the former ; and the letter was deposited with a bank,
through which it was expected some of the business would be done. Various notes
and indorsements were subsequently made by J. ; all of which purported on their face
to have been executed for P. in conformity with, and in pursuance of, the letter of
attorney. In trutli, however, the notes had no connection witii P.'s business, but were
given for the accommodation of third persons, who indorsed tlicm to tlie bank in which
the letter of attorney had been deposited ; the latter receiving them in the regular
course of business, without notice, and for a valuable consideration, lldd, that P. was
liable to the bank on tlie notes ; though as between him and J. they were unauthorized
and fraudulent. Nelson, C. J. dissented. The judgment in this case is said to have
been afterwards reversed in the Court of Errors. But we think the decision of the
Supreme Court was correct. See the observations of Coinstocl;J.,'\n Mechanics' Bank
V. New York & New Haven Railroad Company, 3 Kern. 632, ct srq. In Bank of
Bengal r. Macleod, 7 Moore, P. C. 35, and Bank of Bengal v. Fagan, 7 Moore, P. C.
61, tlie payee of promissory notes of the East India Company, by a ))owcr of attornej',
authorized his agents at Calcutta to "sell, indorse, and assign " the notes. The agents,
in their character of private bankers, borrowed money of the Bank of Bengal, ofTcring,
as security, these promissory notes. The bank made the advance, and the agents in-
dorsed the notes, in tiie name of their princii)al, and deposited tiiem with the iiank, by
way of collateral security for their personal liai)ility ; at the same time authorizing the
bank, in default of payment, to sell the notes in reimbursement of the advances. Held,
that the indorsement of the notes by the agents of the payee to the bank was within the
scope of the authority given to them by the power of attorney. Lord l3roii<]h(im said :
"It is said that the indorsement was only to bo made for the benefit of the principal,
and not for the purposes of the agent. Wc do not see how this very materially affect*
the case, for it only refers to the use to be made of the funds obtained from the indorse-
ment, not to the power; it relates to the purpose of the execution, not to the limits of
the power i'self ; and though the indorsee's title must depend n[ion the aiithoriiy of tno

CH. v.] AGENTS. 109

But the principal would not be held, if the holder had notice
or knowledge of the fraud. (x)

If one signs his name to a bill or note, leaving a blank for the
sum, and intrusts it to another, this is prima facie evidence of
authority ; in England, to insert any sum that the stamp will
cove]', and for any purpose ; and in this country, to insert an
indefinite sum.(y/) As between the immediate parties, and all
others who have notice of any limitation in the authority, this
presumption may be rebutted ; (c) but as to bona fide purchasers
without notice, it is conclusive. And it is immaterial that the
holder knew that the note was signed in blank, if he had no
notice that the authority to fill the blank was limited. (a) Such
a blank signature is a letter of credit for an indefinite sum ; it is

inclorser. it cannot be made to depend upon the purposes for which the indorser per-
forms his act under the power." In the case of Exchange Bank v. Monteath, 17 Barb.
171, where an agent, wlio derived a general authority to bind his principal by bills and
notes from the nature and course of his employment, and not from a written power,
drew a bill ia the name of Iiis principal for the accommodation of a tliird person, it
was litld, that the principal was liable upon the bill, in an action brought by a honajide
holder. And see Mann v. King, 6 Munf. 428; Stainback v. Bank of Virginia, 11 Grat
269 ; Stainback v. Read, 11 Grat. 281 ; Newland v. Oakley, 6 Yerg. 489.

(x) Stainer v. Tysen, 3 Hill, 279. In this case, D. executed a letter of attorney au-
thorizing G. to draw and indorse notes for and in the name of the former. Afterwards
G., being a member of a firm largely indebted to the plaintiff and utterly insolvent,
but with which D. had no connection, applied to the plaintiff for a compromise, and
terms were agreed on ; whereupon G. made a note in D.'s name, payable to the firm,
and delivered it to the plaintiff by Avay of perfecting the compromise. Held, in an
action against D., that the plaintiff could not be deemed to have i-eccived the note bona
fide ; and as G. had given it without authority, the action could not be maintained.
So in Stainback v. Bank of Virginia, 11 Grat. 269, a power of attorney was given to
an agent, to draw, indorse, or accept bills, and to make and indorse notes, negotiable
at a particular bank, in the name of the principal. Held, that a party dealing with the
agent, with knowledge or means of knowledge that under such power he was indors-
ing the name of his principal for his own benefit, was not entitled to recover from the
principal ; and that the fact that the attorney was the drawer of the bill upon which he
indorsed the name of his principal, held the bill at the time it was discounted by the
holder, and that the proceeds were passed to his credit, were of tlicmselves full proof
that the attorney was acting for his own benefit, and not that of his principal. And
see Stainback v. Read, 11 Grat. 281.

(y) Russel v. Langstaffe, 2 Dougl. 514; Collis v. Emett, 1 II. Bl. 313; Violett i-.
Patton, 5 Cranch, 142.

(s) Hatch V. Searles, 2 Smale & G. 147 ; Johnson v. Blasdale, 1 Smedes & M. 17 ;
Hempliill v. Bank of Alabama, 6 Smedes & M. 44 ; Goad v. Hart, S Smedes & M. 787;
Hall v. Commonwealth Bank, 5 Dana, 258.

(a) Huntington v. Branch Bank, 3 Ala. 186; Russel v. Langstaffe, supra. But 806
Hatch V. Searles, supra.

VOL. I. 10

110 NOTES AND BILLS. [CH. V.

saying to the public, " Trust A. B. to any amount, and I will be
his security." (6) Therefore it would be no defence against a
bona fide holder to prove, either that tlie person to whom the
instrument was intrusted had no authority at all to fill the
blank ; or that his authority was limited to a certain sum, which
he had exceeded ; (c) or that he was only authorized to use the
paper for a particular purpose, and had fraudulently converted
it to a different purpose ; {d) or that he was only authorized to fill

(6) Per Lord Mansfield, in Russel v. Langstaffe, supra.

(c) Thus, in Fullerton v. Sturges, 4 Ohio State, 529, P. and others, sureties of C,
signed an instrument payable to S. or order, in blank as to the date, amount, and time
of payment, but with a private agreement that it shonld not bo filled for more than
S 1,000 or S 1,500, and delivered it to C, the principal, to procure the discount. Sub-
sequently, the instrument was presented by C. to S., the payee, and filled up and dis-
counted for the sura of $ 10,000. Held, that one who intrusts his name in blank to
another to procure a discount is liable to the full extent to which such other may see
fit to bind him, when the paper is taken in good foith, without notice, actual or con-
structive, that the authority given has been exceeded ; that such signature iu blank
has the effect of a general letter of credit ; and the rule is founded as well on that
general principle, which casts the loss, when one of two innocent persons must suffer,
upon him who has put it in the power of another to do the injury ; as also upon the
rule, in the law of agency, which makes the princij)al liable for the acts of his agent,
in violation of his private instructions, when he has held the agent out as possessing
more enlarged authority. And see, to the same effect, Roberts v. Adams, 8 Port. Ala.
297; Herbert v. Huie, 1 Ala. 18; Decatur Bank v. Spence, 9 Ala. 800. But see
infra, p. 113, notes g and h.

(d) Putnam v. Sullivan, 4 ^Lass. 45, is an important and leading case upon this
point. That was an action by indorsees against indorsers of a promissory note. It ap-
peared that, one of the defendants being abroad in Euro])e, the other, having occasion to
make a journey from Boston to Philadelphia, intrusted to a clerk of the house several
]iapers, indorsed i)y the firm in blank, to be used by tlie clerk when money was to bo
advanced on the sale of goods by the house on commission, or to renew the notes of the
house when due at the banks. He was directed to deliver one of the blanks to the
promisor upon the note sued on in this action, to enable him to renew a note signed
by him, then in the bank, of which the house were indorsers, and for which he had
requested a l)lank to be left. The promisor called on the clerk for tlie blank indorse-
ment left for him, and one was delivered to him ; afterwards, pretending tliat by some
mistake it had become useless to him, and feigning to burn in tlic clerk's presence the
name of the firm indorsed, he procured another blank, .ind, by a similar pretension and
contrivance, a third and fourth, the last of which was in fact used for the purpose for
which the house had directed a blank indorsement to be given to him. He iiad used
one of the prior blanks for making the note sued on in this action ; which had been
negotiated, with tlic indonsement remaining in blank, to tlie plaintiffs. Parsons, C. J.
said : " It is objected that this note ought to be considered as a forgery of the names of
the indor.'-ers ; because a note was afterwards written on the face of the paper by the
promisor, not only without the direction or consent of the defendants, but against theii
exi)rcss instruction ; and therefore it was a false and fraudulent alteration of a writ, ng,
to the prejudice of the indorsers. This objection would have great weight, if, when the

en. V.J AGENTS. Ill

the blank upon a certain condition, which had not happened ; (e)
or that the authority was limited in point of time, and that the
time had expired. (/) This we regard as the settled law in this
country ; but in England, according to some recent decisions, it

indorsers put the name of the firm (jn the paper, they had not intended that something
ehouhl afterwards be written, to which the name should apply as an indorsement; for
then the paper would have been delivered over, unaccompanied by any trust or con-
fidence. If the clerk had fraudulently, and for his own benefit, made use of all the
indorsements for making promissory notes to charge the indorsers, we are of opinion
that this use, though a gross fraud, would not be in law a forgery ; but a breach of
trust. And for the same reason, when one of these indorsements was delivered by the
clerk, who had the custody of tiiem, to the promisor, who by (;ilse pretences had
obtained it, the fraudulent use of it would not be a forgery ; because it was delivered
with the intention that a note should be written on the face of the paper by the prom-
isor, for the purpose of negotiating it as indorsed in blank by the house. And we must
consider a delivery by the clerk, who was intrusted with a power of using these indorse-
ments (although his discretion was confined) as a delivery by one of the house ;
whether he was deceived, as in the present case, or had voluntarily exceeded his direc-
tion. For the limitation imposed on his discretion was not known to any one but
to himself and to his principals. It is further objected, that, if the writing of this note
under these circumstances is not a forgery, yet it is such a fraud as will discharge the
indorsers against an innocent indorsee. The counsel for the defendants agree that
generally an indorsement obtained by fraud shall hold the indorsers according to the
terms of it ; but they make a distinction between the cases where the indorser through
fraudulent pretences has been induced to indorse the note he is called on to p.ay, and
where he never intended to indorse a note of that description, but a different note and
for a different purpose. Perhaps there may be cases in which this distinction ought to
prevail. As if a blind man had a note falsely and fraudulently read to him, and he
indorsed it, supposing it to be the note read to him. But we are satisfied that an
indorser cannot avail himself of this distinction, but in cases whei'e he is not chargeable
with any laches or neglect, or misplaced confidence in others. Here, one of two inno-
cent parties must suffer. The indorsees confided in the signature of the defendants,
and they could have no reason to suppose that it had been improperly obtained. The
note was openly offered to the plaintiffs by a broker, and when they objected on
account of the absence of both the indorsers, they were answered, on the information of
the promisor, whose character then stood fair, that blank indorsements had been left
with the clerk, and that the indorsers had before indorsed a number of notes for the
same person, which had been negotiated by a broker. On the other hand, the loss has
been occasioned by the misplaced confidence of the indorsers in a clerk, too young or
too inexperienced to guard against the arts of the promisor." And sec, to the same
effects, Roberts i-. Adams, 8 Port. Ala. 297 ; Herbert v. Huie, 1 Ala. 18 ; Huntington
V. Branch Bank, 3 Ala. 186 ; Decatur Bank v. Spence, 9 Ala. 800.

(e) But see infra, p. 113, notes </ and A.

(./') Thus, in Montague v. Perkins, C. B. 18.53, 22 Eng. L. & Eq. 516, it was held,
that a person, by giving another a blank acceptance, makes him, as to third parties, his
general agent to fill up the bill to the extent the stamp will cover, and he is bound by
his acceptance in the hands of an innocent holder for value ; therefore, to an action by
an indorsee for value without notice against the acceptor, it is no defence that the accept-
ance was given in blank to the drawer, and that the bill was not filled up and issued

112 NOTES AND BILLS. [CH. V.

is not so certain. Thus, it has been directly decided there, that
if the autliority to fill the blank was upon a condition, which has
uot been satisfied, this will be a complete defence, even against

until an unreasonable time (twelve years) after. During the argument, Cressivell, J.,
interrupting counsel, said : " Tliis does not differ from tlie case of a merchant employ-
ing an agent to sell a cargo of cotton for him, the agent being held out to tlie world as
having a general authority to sell. His principal may have given him private instruc-
tions, but if, in selling, the agent violates his instructions, his principal is nevertheless
bound." Jtrvis, C- J., in delivering his opinion, said : " It is admitted by my brother
C/iannrll, that the giving a blank acceptance is evidence of an authority to the party to
whom it is given to fill up the bill for the amount, and it may be for the time, to which
the stamp extends ; but he contends that the authority so given is an authority to till
it up within a reasonable time, and that as the autliority in this case was not pursued
in that res])ect, the party giving the acceptance is uot liable. I think that is not the
case with reference to the rights of a bona jide holder for value. The rules applicable
to the question of authority on this bill of exchange do not differ from those which
ought to govern the question, if it arose in the ordinary case between princii)al and
agent. In the case of a blank acceptance, prima facie the person giving it gives the
per>on to whom it is given an opportunity to fill it up for the amount and for the time
limited by the stamp laws. As between those two, there may be secret stipulations
binding upon them, but not binding as between the public and the person giving tho
blank acceiitancc. As said by Lord Elltnhorougli, in Cruchlcy v. Claranee, 2 Maule &
S. 90, the defendant has chosen to send the bill into the world in that form, and the
world ought not to be deceived by his acts. How does this differ from the ordinary case
of an agent, held out to the public at large as competent to contract for and to hind his
principal ? The agent may have secret instructions, but, notwithstanding he deviates
from them, the principal is bound by his acts. So here, the defendant, when he put tho
blank acceptance into Swinburn's hands, gave the latter power to issue it as if he had
a general and unlimited authority ; and the defendant must be bound by the acts
of his agent to whom he gave this power. This is what is said by Lord Mmisjield, in
Russel 0. Langstaffe, that an indorsement on a blank note is a letter of credit for an in-
definite sum. The cases of Temple v. Pullen, 8 E.xch. 389, and Mulliall v. Neville, 8
Exch. 391, arc not at variance with this. For tiiese reasons, I am of o])inion that the
rule must be absolute to enter the verdict for the plaintiff." Matile, J.: "I tliink so
too. The defendant, when he wrote his name in blank and issued this acceiitance, must
liave known, what was obvious to anybody, that he put it in the power of any person
to whom he gave it to fill it up, and pass him off as having acccjucd the bill for any
amount at any time warranted by the stamp. He must be taken to have intended the
natural consetpience of his act If this were not so, and a bona Jide. holder were not to
be protected, then a person who had used the utmost care might be subjected to a loss,
in order to relieve another who had used no care, but had put the person to wlioin he
gave the acceptance in a position to imjjosc upon the most iimocent anil cautious. No
case has been cited which decides the contrary ; and I think we may without any con-
flict with [ircvious cases, and in aflirmance of a princi|)Ie of mercantile law in favor of
the negotiability of these instruments, and to protect innocent holders for value, decide
that the defendant is liable, and that this rule should be made absolute." Crrsswi'II,
J. : "I entirely agree to this. A person who gives another ])ossession of his signature
on a bill slaini), jirimn ficic authorizes the latter as his agent to lill it uj), and give to
the world the bill as accepted by him. Ho enables his agent to represent himself tc

CH. v.] AGENTS. 113

a bona fide holder. (i,'-) So, if the authority be limited to a
partieular sum, and a larger sum be inserted, it has been decided
by all the judges of England that tliis will be forgery. (//) We
think the rule established in this country is just and rational.

tlie world :is acting with a general authority ; and he cannot say to a bona Jidi liolder
for value, who h:is no notice of any secret stipulations, that there were secret sti]iuIation3
between liimself and the agent, any more than can a principal, in the case already \)nX,
where he enables his agent, buying or selling on his behalf, to represent himself a,s act
iug under a general authority." See also Temple v. PuUen, 8 Exch. 389 ; Midliall v
Neville, 8 Exch. 31)1.

[ij] Awde V. Bixon, 6 Exch. 869. In this case, the defendant agreed to join hi*
brother ia making a promissory note for his accommodation, provided K. would alst
join. The defendant accordingly signed an instrument in the form of a promissoi'y
note, a blanii being left for the name of the payee. R. refused to join, and afterwards
the defendant's brother delivered the imperfect instrument to the plaintiif for value,
representing that he had authority to deal with it, and the plaintiff's name was inserted
as payee. Htld, that the plaintiff could not recover on this note against the defendant;
and, semhle, that, under such circumstances, the insertion of the plaintiff's name as
payee rendered the instalment a forgery. Pnrke, B. said : " It is unnecessary to say
whether this instrument is a forgery or not, but there is certainly ground for contending
that the making of it complete, contrary to the directions of the defendant, renders it a
false instrument as against him. I do not gainsay the position, that a person who puts
his name to a blank paper impliedly authorizes the filling of it up to the amount that
the stamp will cover. But this is a different case Here the instrument, to which the
defendant's name is attached, is delivered to his brother, with power to make it a com-
plete instrument, on one condition only, that is, provided Kobinson would be a joint
surety with him. This, therefore, is an instance of a limited authority, where, in case
of a refusal by Robinson to join, there is a countermand. Robinson refused to join,
and consequently the defendant's brother had no authority to make use of the instru-
ment. A party wlio takes such an incomplete instrument cannot recover upon it,
unless the person from whom he receives it had a real authority to deal with it. There
was no such authority in this case, and unless the circumstances show that the defend-
ant conducted himself in such a way as to lead the plaintiff to believe that the defend-
ant's brother had authority, he can take no better title than the defendant's brother
could give. The maxim of law is, ' Nemo plus juris in alium transferre potest quam
ipse habet.' It is a fallacy to say that the plaintiff is a bona fide holder for value ; he
has taken a piece of blank paper, not a promissory note. He could only take it as a
note under the authority of the defendant's brother, and he had no authority, conse-
quently the instrument is void as against the defendant."

(h) Rex V. Hart, 1 Moo. C. C. 486; Regina v. Wilson, 1 Den. C. C. 284. In
^wde V. Dixon, supra, Parke, B., interrupting counsel, said : " Suppose Richard
Dixon had authority to fill up the instrument with £ 100, and he inserted .£200, would
the defendant be liable ? In the case of Rex i\ Hart, all the judges were unanimously
of opinion, that where a blank acceptance is delivered to a person, with authority to fill
it up with a particular sum, and he inserts a larger sum, he is guilty of forgery. Re-
gina V. Wilson is an authority to the same effect." Alderson, B. said : " A blank ac-
ceptiince is not of itself an authority to make a complete bill, but only evidence of
authority. Molloy v. Delves, 7 Bing. 428. Here the defendant signed his name to a
piece of paper, giving his brother authority to make it a promissory note on certain

V«L. I.— 11

114 NOTES AND BILLS. [CH. V.

It should be noted, however, that it is confined to cases where
the signature is intrusted to another person fur some purpose.
And we are incUned to think that it should be confined to cases
where the person to whom the signature is intrusted is authorized
to Jill the blank, in some form, ov for some purpose. If so, proof
that he had no authority to fill the blank in any form, or for any
purpose, would be a complete defence. As if a blank signature
were given to a servant, to be carried to a bank and delivered to
the cashier, and the servant should fill the blank and negotiate
it. If a person sign notes in blank, and lock them up in his
safe, whence they are stolen, filled up, and negotiated, without
fault or negligence on his part, he is not liable. (?) Possibly, it
might be held otherwise, if he make and sign a perfect note,
payable to bearer, and it be stolen under similar circumstances ;

terms ; he makes it a note on other terms ; then how does that differ from the case of
signing his brother's name ? It would be strange if this transaction amoimted to for-
gery, and yet we should hold this a true instrument."

(i) Nance v. Lary, 5 Ala. 370. In this case, the defendant and one Langford being
about to execute a bond in blank, the latter produced a sheet of paper u])ou wiiich the
defendant signed his name, whereupon Langford suggested that the signature was so
far from the bottom of the paper, that there might not be room for the bond to bo
written above it, and produced another sheet for the defendant to sign, so as to leave
Buflicieut room for the intended bond. Langford, with apparent carelessness, slipped
the first sheet aside, and signed the other with the defendant, who carried it to the
clerk of the court to be filled up, leaving the former with Langford, under the impres-
sion that it had been or would be destroyed. Subsequently, Langford caused the note
upon which the present suit was brought to be written over the blank signature of the
defendant retained by him, and negotiated it to the plaintiff. Collier, C. J. said : " The
making of the note by Langford was not a mere fraud upon the defendant ; it was
something more. It was quite as much a forgery as if he had found the blank, or pur-
loined it from the defendant's possession. If a recovery were allowed upon such a
state of facts, then every one who ever indulges the idle habit of writing his name for
mere pastime, or leaves sufficient space between a letter and his subscription, might be
made a bankrupt by having promises to pay money written over his signature. Such
a decision would be alarming to the community, has no warrant in law, and cannot
receive our sanction." In Montague v. Perkins, C. B. 185.3, 22 Eng. L. & Eq. ."iie, cited
supra, Cresswell, J., interrupting Bijlrs, Sergeant, aiy/iioido, said: " Suppose the defend-
ant had lost his blank acceptance, would he have been liable upon it if the finder,
without Ids authority, had filled it up ? " Bi/les. " Yes, to an indorsee for value, with-
out notice ; as where A, by false representations, induced B to sign his name to a
blank stamped paper, which A afterwards secretly filled up as a promissory note for
jC 100, and iinluced C to advance him £100 on it, Garrow, Ji. held, that C had his
remedy on the note against B. Ilex v. Kcvett, Byles on Bills, 10.3, filli edition."
Tills case is stated too briefly to enable one to gather, with suflicieiit precision, the
actual state of the facts. But if it is an authority for the projiosition for which the
learned Sergeant cites it, wc think it unsound.

CH. V] AGENTS. 115

on the ground that, when the instrument is once perfected, (al
though it has never passed out of the maker's hands, and con-
sequently has had no inception as a contract,^ it is like money,
and any one who receives it in good faith and for a valuable con-
sideration acquires a perfect title, (j)

When a bill or note is given in blank, it is not necessary that
the blank should be filled by the person to whom it is imme-
diately intrusted. It may be negotiated in blank, and any bona
fide holder may insert the amount advanced by him on the faith
of the signature. (A;)

If a note be made payable so many days or months after date,
and the date be left blank, the maker will be bound, in favor of
a bona fide holder without notice, by any date which the payee
chooses to insert. (Z) But if the payee, to accelerate the time of
payment, inserts a date anterior to the time of making the note,
it seems that it will be void in the hands of any party who
received it with notice that it was antedated. The reasonable
construction of such an instrument is, that it is to bear date only
from the time when it is negotiated ; and the face of the note is
notice of this.(?»)

A power to make notes for discount does not extend to the
power of renewing the same notes, (ri) And a power to put the

[j) Worcester County Bank v. Dorchester & Milton Bank, 10 Cush. 488 ; Gould
V. Segee, 5 Duer, 260. But see Hall v. Wilson, 16 Barb. 548, where an opinion was
intimated, that until delivery the instrument was of no more effect than a blank piece
of paper. The case was decided on another ground.

(k) Schultz V. Astley, 2 Bing. N. C. 544; Herbert v. Huie, 1 Ala. 18; Huntington
V. Branch Bank, 3 Ala. 186.

(/) Androscoggin Bank i;. Kimball, 10 Cush. 373; Mechanics' & Farmers' Bank v
Schuyler, 7 Cowen, 337, note a.

(m) Goodman v. Simonds, 19 Misso. 106. But see, contra, Mitchell v. Culver, 7
Cowen, 336.

{n) Ward v. Bank of Kentucky, 7 T. B. Mon. 93. A power to renew a note at sixty
or ninety days will authorize the renewal of the note at eighty-eight days, there being
no violation of the object and intention of the parties. Bank of So. Car. v. Herbert, 4
McCord, 89. See Bank of So. Car. v. M'Willie, 4 McCord, 438. But where A au-
thorized B to sign his name to a note for $ 250, payable in six months, and B put A's
name to a note for that sum, payable in sixty days ; it was held, that A was not liable.
Batty V. Carswell, 2 Johns. 48. And an authority given by a fiither to his son to accept
in his name a bill of exchange for $ 2,000 to be used for a particular purpose, will not
warrant him in accepting a bill for a part of the amount given for another purpose.
Nixon j;. Palmer, 4 Seld. 398. In Hortons v. Townes, 6 Leigh, 47, A, by letter of
•ttorney, authorized B to put his name to or upon any negotiable note, as maker or
indcrser, for the purpose of getting the same discounted at one or other of certain

116 NOTES AND BILLS. [CH. V.

name of the priucipal to a note payable at a certain bank does
not authorize the use of his name upon a note payable specifically
elsewhere, or indeed upon any note not payable specifically at
that bank.(o) Nor can supercargoes bind their principals by
drawing a bill on the principals, and then accepting it in their
name, without special authority to do so ; nor would the power
to accept bills drawn on their principals by others, be derived
from their employment as supercargoes. (^)

The same may be said of masters of ships (7) or steamboats. (r)
Nor has an ordinary merchant's clerk any authority to bind
his employer by signing a bill or note in his name.(.s) Nor

specified banks, to the amount of $ 3,000, and then for renewal of sucli note at bank,
from time to time, so as the amount shall, at no one time, exceed $ 3,000. B made a
note for $ 3,000 accordingly, which was discounted at bank, and renewed from time to
time, but was at length reduced to $ 1 ,000 ; and then B purchased groceries of C, and
for the price thereof gave him a note in A's name, negotiable at one of the specified
banks. Hekt, that this last note was not within B's autliority. And semble, that hia
authority was exhausted by the making of the first note for $ 3,000.

(o) Morrison v. Taylor,'6 T. B. Mon. 82.

(p) Scott V. M'Lellan, 2 Greenl. 199.

(q) Bowen v. Stoddard, 10 Met. 375.

(r) May v. Kelly, 27 Ala. 497.

(s) Terry v. Fargo, 10 Johns. 114. In Smith v. Gibson, 6 Blackf. 369, it was helct,
that an agent for attending to and managing a grocery and provision store, &c., is not,
in consequence of suc'h agency, authorized to draw or indorse notes in the name of his
principal. In Davidson v. Stanley, 2 Man. & G 721, it was laid, that the bailiff of a
large fanning establishment, through whose hands all payments and rcceii)ts take place,
has no implied authority to pledge the credit of his employer by drawing and indorsing
bills of exchange in the name of the latter. Nor, in the absence of all direct evidence
of authority, does the nature of the employment of such a bailiff furnish any ground
for inferring the existence of such an authority upon slight, or upon any other than
clear and distinct, evidence of assent or acquiescence. In Tappan v. Bailey, 4 Met.
529, where a company was formed for the purpose of purchasing timber-land in Maine,
and getting the hnnber therefrom and selling it, and officers were appointed to take tho
genei'al management of the concerns of tlie couii)any, witli power to apf)oint agents to
transact its business ; it was hikl, that an agent appointed by such officers had au-
thority to give a negotiable note of tlic company in payment for services of laborers
employed by him in getting out lumber. It seems that an agent who is employed by
the owners of a whale-ship to fit her for sea, and purchase the necessary supplies for her
voyage, cannot bind the owners by making a net;otiable note, or accepting a negotiable
bill of exchange, in their names, as agent, in payment for such sup|)lies. Taber r. Can-
non, 8 Met. 456. In the Bank of Hamburg v. Johnson, 3 Ricli. 42, the defendant
established a large store in a country town, for the sale of groceries and purclia.se and
ealc of cotton, under the entire diarge of W. as liis agent, and gave public notic(; that
W. would conrluct the business and act as his agent in the purchase of goods and
everything appertaining to his business in the mercantile line. W. sold cotton as de-
fendant's agent, and, in order to enable the purchaser to raise money to pay for it,

CH. v.] AGENTS. 117

has an attorney at law, to whom a note is sent for collection,
any authority as attorney to transfer the note to a third per-
son. (<) If the holder of a bill employ an agent to get it dis-
counted, without restraining him as to tiie mode of doing it,
an authority will be implied in the agent to indorse the bill
in the name of the principal. (m) But if the principal expressly
directs the agent to take the bill into the market and sell it,
without indorsing it, and the agent, in violation of his orders.

indorsed, in the name of his principal, a bill to be discounted by the y)urchascr in bank.
The bill was discounted, and with the money thus raised the purchaser paid for the
cotton. Held, that W. had not acted within the scope of his authority, and therefore
that tlie defendant was not bound by the indorsement. So an agent employed in the
manufacture of carriages has no authority, b}' implication from the nature of that busi-
ness, to bind his principal by a negotiable note given for labor or materials. Paige v.
Stone, 10 Met. 160. And see Scarborough v. Reynolds, 12 Ala 252. In Beach v.
Vandewater, I Sandf. 2G5, it was held, that an agent of an association of canal for-
warders, authorized by the articles to regulate the accounts of earnings, and the distri-
bution of the same and of the expenses, to control the manner of running the boats, to
sue for various duties undertaken by the parties, and to maintain offices for the trans-
action of the business, is not authorized to accept bills of exchange, so as to bind the
associates. See Layet v. Gano, 17 Ohio, 466. In Webber v. Williams College, 23
Pick. 302, wliere an agent was authorized to advance a sum of money to a third per-
son, and he, instead thereof, gave a note for the amount in the principal's name, it was
hdd, that the principal was not liable on the note. In Gould v. Norfolk Lead Co., 9
Gush. 338, it was held, that the payment of an unaccepted draft upon a corporation, by
its agent, is no evidence of his authority to accept drafts upon the corporation ; and
the fact that such acceptor acted as general agent has little tendency to show such au-
thority. Shaw, G. J. said : " The acceptance of a draft is an executory undertaking
to pay it at a future day, and the authority to make such an agreement is not incident
even to the authority of an agent to purchase and pay for goods. The authority to
accept is one of a very high character, particularly in the case of a trading corporation,
to whom business credit, and the use of that credit, are constantly necessary. It has
been argued that such authority may be inferred from the course of trade, and the
payment of unaccepted drafts upon the company, on other occasions. But this impli-
cation does not follow from such payments ; for, cither the agent had funds of the com
pany for the purpose of paying such drafts, which docs not imply that lie had authority
to pledge their credit, or he paid them from his own funds, relying on the credit of the
company, and their previous undertaking and liabilitj', to reimburse him for all his ad-
vances, which implies no authority whatever to bind them to a future payment of money
by an acceptance. I shall not go into an examination of the cases on this subject, but
will refer to that of Webber v. Williams College, 23 Pick 302, where the question waa
much considered, and many cases were cited. The case of Emerson v. Providence
Hat Manuf Co., 12 Mass. 237, goes to the point that constituting one a buying and
Belling agent of a trading company does not imply authority in him to give the nego-
Mable note of the company."

(t) Russell V. Drummond, 6 Ind. 216.

(«) Fenn v. Harrison, 4 T. R. 177.

118 NOTES AND BILLS. [CH. V.

indorses in the name of the principal, the latter will not be
liable on this indorsement, even in the hands of a bona fide
holder, (y)

It is said that the usage of trade authorizes a merchant,
making a shipment, to draw on the consignee, and binds the
consignee to pay the bills if the shipment supplies him with
funds. But an agent who is authorized to draw on his prin-
cipals for the sums he advances on merchandise consigned to
tliem, is not thereby authorized to draw on them on account
of goods of his own which he consigns to them. In relation
to these goods, he has the general rights of a merchant ship-
ping goods, and no other, (ly) A power to give a " company
note " was held to include the power of drawing a bill in the
name of the " company." (a;) That any principal may limit any
authority which he gives, precisely as he thinks proper, is un-
questionable.

If an authority be given in very general terms, and the same
instrument enumerates certain special objects or acts, this speci-
fication will be held to restrain the general words, and the
instrument will be construed as if limited in its intention and
operation to them, unless there be some phraseology in the
instrument, or something in the nature of the case, which dis-
tinctly controls this rule of construction. (y)

If one enters into a contract as agent for another, he cannot
enforce that contract in his own name and for his own benefit,
as if made by himself and for himself, without giving sufficient
previous notice to the other party of his purpose so to do. But
with that notice, it seems that he may maintain an action on
the contract in his own name, if the facts arc such in other
respects as would authorize hhn in doing so.(c^)

(v) Fenu v. Harrison, 3 T. 11. 757.

(w) Scliimtnelpcniiicli v. Bayard, 1 IVt. 264.

(.r) Tripp v. Swanzcy Paper Co., 13 Pick. 291.

(ij) 'I'lius, in UoHsitcr v Rossitcr, 8 Wend. 494, it was held, that a power of attorney
to collect debts, to execute deeds of lands, to accomplish a complete adjustment of all
concerns of the constituent in a particular ])lace, and to do all other acts which the con-
Htitucnt could do in person, did not authorize the {,'ivin}i; of a note by the attorney in
the name of the principal. The larj^er powers, conferre<l by the ^xi'nL-ral words, must
be ponstriKMl with reference to the matters specially mentioned. And see ante, p. vqS,
el HPij.

(z) IJi'kertun v. Hurrell, 5 Maulc & S. 383 ; Kayucr i-. Grotc, 15 M. & W. 359.

CH. v.] AGENTS. 119

If an agent exceed his authority in signing the name of
his principal to a note, the note will be void as to the principal,
even in the hands of a bona fide holder, (a)

Any person who receives bills or notes for collection, or for
any other specific purpose, must be controlled by any directions
or limitations expressed upon them, and cannot apply the pro-
ceeds to his own benefit, in any way inconsistent with those
directions or limitations ; nor can he by assignment or indorse-
ment convey the property in the paper to any one who has
notice or knowledge that he therein transcends his authority. (/^)
So an agent or broker, who has notes or bills of another to get
them discounted, cannot pledge them for money previously due
from him ; nor, as it would seem, could he be justified by any
usage in doing so.(6') On general principles it might be said
that he could not pledge them for money paid him, if the lend-
er knew, or had sufficient reason to know, both that the notes
belonged to another, and that the broker, against the pur-
poses of the owner, was borrowing money on them for himself.
Nor can he, without specific authority, pledge the bills of dif-
ferent customers in one mass, for this subjects each note to
a lien for money advanced on the rest. But to this point
it has been said that usage might enlarge the broker's author-
ity.(./)

It lias been said, on high autliority, that any person taking
an acceptance which purports to be by procuration, takes it
on the credit of the party who assumes to have authority to
accept, and should, therefore, in the exercise of due caution
and reasonable prudence, require the production of the au-

(a) Fearn v. Filica, 7 Man. & G. 513 ; Andover v. Grafton, 7 N. H. 298, 303. In
Mechanii's' Bank v. New York & New Haven R. R. Co., 3 Kern. 631, Comstock,3.
says : " It is obvious, upon a moment's reflection, that negotiability can impart no
vitality to an instrument executed undfer a power, where the agent has exceeded his
actual or presumptive autliority. Whoever proposes to deal with a security of any
kind apjiearing on its face to be given by one man for another, is bound to inquire
whether it has been given by due authority, and if he omits that inquiry he deals at his
peril."

(h) Ancher v. Bank of England, 2 Doug. 6.38; Sigourney v. Lloyd, 8 B. & C 622,
5 Bing. 525.

{d) Ilaynes i;. Foster, supra ; Foster j;. Pearson, supra.

120 NOTES AND BILLS. [CIL V.

thority.(e) But it may be doubted whether the not requiring
the production of this authority would, of itself and of neces-
sity, be such an act of negligence as to affect his rights ; al-
tliough such seems to be the view held in some cases.

The unauthorized delivery of bills or notes payable to bearer
gives a bona fide holder the property in them, and a right to
call on all prior parties. (/) And the same rule applies to
negotiable notes or bills which are indorsed in blank ; for these
are equally transferable by delivery alone.

One having a general authority as agent, or a special au-
thority unlimited as to time, may be presumed to possess that
authority until there be notice of revocation. (^'■) This notice
may be express, and proved by direct evidence ; or it may be
inferred from any circumstances, such as change of residence,
or of business, or lapse of time, or of any other kind, always
provided they are such as would suggest this revocation or
cessation of authority to a man of ordinary intelligence and
prudence. (/i) So the notice may be direct to the party deal-
ing with the agent, or general, by advertisement in a public
paper, and then the knowledge of it must be brought home to

(e) Attwood V. Munnings, 7 B. & C. 278. Baijley, J. : " Tliis was an action upon
an acceptance importing to be by procuration, and, therefore, any person taking the
bill would know that lie had not the security of the acceptor's signature, but of the
party professing to act in pursuance of an authority from him. A ]>erson taking such
a bill ought to exercise due caution, for he must take it upon the credit of the party
wlio assumes the authority to accept, and it would be only reasonable prudence to re-
quire the production of that authority." Ilohoijd, J. : " The word ' procuration ' gave
due notice to the ])laintiffs, and tiiey were bound to ascertain, l)efore they took the bill,
that tlie acceptance was agreeable to the authority given." Lilllcdali', J. : " It is said
that third persons are not bound to inquire into the making of a bill ; but tliat is not
so where the acceptance a])pears to be by procuration." See Withington v. Herring,
.5 Bing. 442. In Alexfinder v. Mackenzie, 6 C. B. 766, it was hild, that the acceptance
or indorsement of a bill of exchange exjjressed to be " per procuration'' is a notice to
the indorsee that the party so accepting or indorsing professes to act under an authority
from some ])rincipal, and imposes upon the indorsee the duty of ase(>rtaiiiing that the
party so accepting or indorsing is acting within the terms of such authority.

(/) Miller v. Race, 1 Burr. 452.

(//) In )'. Harrison, 12 Mod. .340, a servant had power to draw bills of c.x-

cliangp in his master's name, and nfterwards was turned out of the scrvu-c. Holt, C.
J.: " If he draw a hill in so little time after that the world cannot take notice of Iiis
being out of service, or if he were a long time out of his service, but that kept so
Hecret that the world cannot take notice of it, the bill, in those ca.sea, shall bind the
macter."

{It] Sec 1 Parsons on Cont. .^8, e/ nfi/j.

CH. v.] AGENTS. 121

liim by such reasonable evidence, as that he takes the paper,
or reads it regularly, or was known to liave examined tliat very
paper, (/t)

DeaUi operates as a revocation of every agency or authority
which is not coupled with an interest, and in that way vested
in the agent. Even in that case, the death of the principal
revokes the authority so far tliat the agejit can no longer use
the name of the principal, and must require the representatives
of the deceased to act for him. But if the authority be one
which the agent can execute in his own name, and be also
coupled with an interest, it is unaffected by the death of the
party. Whatever be the nature, ground, or extent of the au-
thorit;y to act for another in his name, we should say, on gen-
eral principles, that his name, put to any negotiable paper,
or indeed to any instrument, after his death, although in ig-
norance and good faith, was a nullity.(7;)

One who i)urports to act as an agent, but who transcends
his authority, or has no authority, is, as we have seen, per-
sonally liable ; but not as a party to the note or bill which
he so signs, indorses, or accepts, if he signed expressly as agent ;
as. for example, " A, by B, his attorney." If B is not A's at-
torney, there is, strictly speaking, no signature to the note ; and
B is oidy liable for pretending to make a note when he did
not. But there are authorities which hold that here is a note,
and some one must be held upon it, and, as A cannot be, B
must be.(i)

(k) See 1 Parsons on Cont. 58, el seq.

(i) Tlic authorities upon this point cannot be reconciled. In Polhill v. Walter, 3 B.
& Ad. 114, it was held, that the defendant, who had accepted a bill for one Ilancornc
without authority, was liable in a special action on the case, but not as acceptor. This
was upon the ground that no one can be liable as acceptor but the person to whom the
bill is addressed. In Wilson v. Barthrop, 2 M. & W. 8G3, the defendant, who was tlio
agent and clerk of a firm, drew a bill of exchange, and signed thereto the name of
the firm. Hdd, that the defendant was not liable as the drawer in an action on the bill,
his name not being affixed to it, without some proof that he had no authority to draw
bills in the name of the firm, or that he had not acted bona fide. And rjiiiere, whether,
if it had been proved that he had no such authority, he would have been liable in an
action upon the bill. In Long v. Colburn, 11 Mass. 97, a promissory note was sub-
scribed thus : " Pro William Gill. J. S. Colburn." Ili-ld, that this was the promise
of Gill, if Colburn had the authority to make it ; and if not, that he would be liable to
the promisee in a special action on the case In Ballou v. Tall)ot, 16 ]Mass. 461, the
defendant made a promissory note, subscribed with his own name, but added to his
signature the words, " agent for David Perry." Held, that the defendant was not liable

vov. I 11

122 NOTES AND BILLS [CH V.

As a general rule, one who acts professedly as a public agent,
and had authority so to act, is not liable, although the public fail
to perform the contract, unless circumstances indicate that it
was understood between him and the party dealing with him that
the contract was made on his personal credit. As, for example,
that an officer charged with the erection of some public building
induced laborers to engage in it by his promise that their wages
should be paid at all events, and whether funds were provided or
not. So if he drew bills or gave notes for the public, but with

on the note. If he acted without authority from Perry, he was liable in a special action
on the case. In Jefts v. York, 4 Cush. 371, the defendant made a promissory note

beginning, "For value received, the pastor and deacons of Church, in behalf of

said church, promise," &c. (Signed,) " S. D. York, agent for Church." Iltld,

that the defendant was not personally liable on the note, though he gave it without
authority. Bigeloiu, J. said : " It is impossible, upon any legal ground, to construe
the instrument as the individual note of the defendant. Had it bocn a note of this
tenor, ' I promise to pay A. B. one hundred dollars. S. D. York, agent for the Free-
will Baptist Society,' it might be plausibly contended, that, if the agency was unauthor-
ized, all the description of agent, &c. might be rejected, and the note be treated as the
individual note of York. But the note is in no sense, and in no manner of reading it,
a promissory note of York. In this instance, the body of the note contains tlic name
of the promisor, who alone is the stipulated party to the promise contained in the note."
See same case, 10 Cush. 392. In Grafton Bank v. Flanders, 4 N. H. 239, wlierc A put
die name of B to a promissory note without any authority from B, and the note was
delivered to the payee for a valuable consideration, it was held, that under these circum-
stances tlic law would presume that A intended to bind himself ; that he might so bind
himself; and that he was liable in an action against him in his true name on the note,
upon a count alleging that he made the note by the name of B. Sed quitre. Ii\ Sav-
age V. Kix, 9 N. II. 263, in an action on a promissory note, it was held, that if an agent,
in making a contract, fail to execute it in such a manner as to bind his principal, but
use apt words by which to make a contract for liimself, whatever there may be which
indicates that he might be an agent must be regarded as description, and he will bo
liable as on his own personal contract. In Duscnbury v. Ellis, 3 Johns. Cas. 70, iho
defendant, having no authority for the purpose, made a promissory note, beginning, " I
promi.sc," &c. (Signed,) "For Peter Sharpc, Gabriel Duscnlmry, attorney." lldd,
that the defendant was personally liable on the note. The court said : " If a person,
under pretence of authority from another, executes a note in his name, ho is bound ;
and the name of the person for wiiom he assumed to act will be rejected as surplusage."
In Palmer (;. Stephens, 1 Dcnio, 471, the defendant, without authority, made a promis-
sory note, and signed thereto the name of Gideon Stepliens, writing his own initials
under the signature. Ilvid, that tlio defendant was personally liable on the note. In
Ormsby v. Kendall, 2 Ark. 338, the defendant gave a note, beginning, "Steamer
Tecuin.seh an<l owners promise," &c. (Signed,) " F. C. Kendall." Held, that the
defendant was personally liable on tlic note, unless lie showed that he had authority
to contract for the steamer and owners. Sec further, Hobcrts v. Button, I4 Vt. 19.5;
Bank of Hamburg v. Wray, 4 Strobh. 87 ; Johnson v. Smith, 21 Conn. 627 And se«
1 Parsons on (^ont. 57, note _/!

CH. v.] PARTNERS. 123

the same personal assurance, or guaranty ; or if such assurance
could be implied from the nature of the casG.{j)

SECTION Y.

OF PARTNERS.

The relation of partnership, and the law which grows out of,
and which regulates, that relation, arc very peculiar. Partly, it
is the law of agency, because each partner is the agent of the
whole Ilrm, with full power to represent all the members, in all
transactions whicli relate to the business of the copartnership.
Partly, it is the law of property, because the several partners
own jointly all the copartnership property. It is, in fact, a sys-
tem of law excellently adapted to its precise scope and purpose,
and peculiar thereto.

A partnership exists when two or more persons combine their
property, labor, and skill, or one or more of these, in the trans-
action of business, for their common profit.

The law clothes each partner with authority to bind all the
partners in all business transactions which actually concern the
firm ; or which are so far within the scope of the actual or pre-
tended business of the firm as to justify third parties in believing
them to belong to the business of the firm. And this applies to
signing, indorsing, accepting, presenting, demanding and receiv-
ing payment of, and discharging negotiable paper. And a part-
ner who accepts, in his owu name, a bill drawu ou a firm, binds
the firm. (A;) Nor is it any objection to a note given in good faith

( j) See 1 Parsons on Cont. 104, et seq.

[k) Mason v. Rumsey, I Camp. 384. In this case the bill was drawn upon " Messrs.
Rumsey & Co.," and acceijted by T. Ramsey, Sen. It was contended for tlie defend-
ant, that, " if a bill was drawn upon a firm, it must be accepted in the name of the
firm, or by one partner for himself and his copartners ; otherwise the holder might
protest the bill, as the mere signature of a single partner was binding only upon
himself." But Lord Ellenhorongh said : " There is no foundation for the doctrine
contended for. This acceptance does not prove the partnership ; but if the defend-
ants were partners, they are both bound by it. For this purpose it would have been
enough if the word 'accepted' had been written on the bill, and the effect cannot
^Q altered by adding ' T. Rumsey, Sen.' If a bill of exchange is drawn upon a
firm, and accepted by one of the partners, he must be understood to exercise his
power to bind his copartners, and to accept the bill according to the terms in which

124 NOTES AND BILLS. [CH. V.

for a partnersliip debt, that it was given without the knowledge
of the other partners. (/) And the signature of a partner, in the
name of the firm, to negotiable paper, for a transaction not in
their business, or their line of business, would bind the firm, if
the proceeds thereof were received and held by the firm, because
this would be a ratification. (wi) But if the other partners did
not know of the transaction at the time, and, as soon as they did,
gave up the proceeds and repudiated the contract, this would dis-
charge them. A considerable delay in giving notice of their dis-
sent, after they are informed of the transaction, would be equiv-
alent to their assent, and would bind them accorclinglj.(;/)

it is drawn " In Jenkins v. Morris, 16 M. & W. 877, a hill was drawn on " E. M. and
others. Trustees of Clarence Temperance Hall, Liverpool," and acceined thus: "Ac-
cepted, E. M." The defendants, with E. M. and another, were the trustees of a body
of persons associated tof^ether for the purpose of buildiiij^ the Teni])crance Hall. E.
M. had authority from all the trustees to accept the bill ou tlieir behalf. Held, that the
defendants were i)ound by the accejjtance, though it did not show on the face of it that
E. M. intended to accept, not individually, but for himself and four others. Pollock,
C. B. said : " Mundy accepted the bill, and the jury found that he had authority from
all the trustees to do so. Then his acceptance did not import that he acce])ted merely
as an individual, but that he was the party whose hand performed that duty by direc-
tion of the rest ; and the mere fact that he needlessly added his name to the acceptance
made no difference." In Dougal v. Cowles, 5 Day, 511, it was held, that the act of
drawing a bill of exchange, by one partner in his own name, upon the firm of which
he Is a member, for the use of tlie partnership concern, is, in contemplation of law, an
acceptance of the bill, by the drawer, in behalf of the firm ; and the holder of the bill
may sustain an action thereon against the firm, as for a bill accepted. And sec Beach
r. State Bank, 2 Ind. -188

(/) Smith V. Lusher, 5 Cowen, 688.

(m) In Hicliardson v. French, 4 Met. 577, where an administrator, who was a mem-
ber of a partnership, applied to the concerns of the partnership money which belonged
to the estate of his intestate, and afterwards gave the note of the firm to the creditor of
the intestate, to whom such money was due, in discharge of such creditor's claim upon
the estate of the intestate ; it was held, that the firm was liable on the note, although
the money was not in the hands of the firm when the note was given. And see Jaqucs
V. Marquand, 6 Cowen, 497 ; Whitaker v. Brown, 11 Wend, lo, 16 Wend. 505 ; Clay
17. Cottrell, 18 Penn. State, 408.

(n) Thus, in Foster v. Andrews, 2 Penn. 160, it was held, that if a note he given b,
one partner in the name of tlic firm, for his own private debt, and the other partner,
upon being informed of the transaction, docs not dissent or give notice to the ])ayce
tluU he will not be liai)lc, he shall be bound. But in Elliott v. Dudley, 19 15arb. 3'26,
it was hild, that to render the firm liable under such circumstaiu'cs, where ihcre lias
been no previous usage to justify such a use of the partnershi]) name, their snl).sequent
assent must be proved ; that proof of knowledge of the transaction on their part, after
it hu.s taken place, and nothing more, is no proof of assent ; that they are not bound
to deny their liability \mtil they are prosecuted. In Cansevoort v. Williams, 14 Wend.
133, it was held, tiiat where one member of a mercantile firm gives a note ii' vlie name

CH. v.] PARTNERS. 125

If a partner by his signature defrauds tlie firm, this does not
discharge them from their liability to an innocent third party,
because their entering into partnership with the wrong-doing
partner enabled him to commit the fraud. (o) Not so where the
third party is not innocent, but is party or privy to the fraud ;
for then the firm is discharged. Tiuis, if one partner signs or
indorses a note with the partnership name, but in payment or
security of his private debt, and the taker knows it to be so, the
other partners are not bound without their assent, or some act
which justified the taker in supposing their assent ;(/>) and the

of the firm for his individual debt, the assent of the firm may be implied from facts
and circumstances; an express assent need not be shown. In Mercein v. Andrus, 10
Wend. 461, it was held, that a partner is not liable to the payment of a note indorsed by
his copartner in the name of the firm, out of the course of the partnership concerns,
although he be present and hear the arrangement respecting the indorsement ; his assent
must be proved, and will not be presumed. And see Sweetscr v. French, 2 Cush. 309,

(o) Catskill Bank v. Stall, t.5 Wend. 364; Whitaker v. Brown, 16 Wend. 505;
Hawes r. Dunton, 1 Bailey, 146; Bascom v. Young, 7 Misso. 1 ; Cotton ?;. Evans, 1
Dev. & B. Eq. 284 ; Winship v. Bank of United States, 5 Pet. 529 ; Flemming v. Pres-
cott, 3 Rich. 307 ; Miller v. Manice, 6 Hill, 115 ; Duncan v. Clark, 2 Rich. 587 ; Em-
erson V. Harmon, 14 Maine, 271 ; Waldo Bank v. Lumbert, 16 Maine, 416 ; Parker v.
Burgess, 5 R. I. 277 ; Hopkins v. Boyd, 11 Md. 107. In Arden v. Sharpe, 2 Esp. 524,
Lord Kemjon said : " One partner certainly may indorse a bill in the partnership name ;
and if it goes into the world, and gets into the hands of a bona jftde holder, who takes
it on the credit of the partnership name, and is ignorant of the circumstances, though
in fiict the bill was first discounted for that one partner's own use, in such case the
partnership is liable." And see next note.

{p) The principle is clearly stated by Lord Kemjon in Wells v. Masterman, 2 Esp.
731 : " When a man enters into a partnership, he certainly commits his dearest rights to
the discretion of every one who forms a part of that partnership in which he engages ;
and if a bill is drawn upon the partnership in their usual style and firm, and it is
accepted by one of the partners, it certainly binds tiie partnership to the payment of it;
but if a man has dealings with one partner only, and he draws a bill on the partnership
on account of those dealings, he is guilty of a fraud, and in his hands the acceptance
made by that partner would be void ; but it would be otherwise in the case of a bona
fide indorsee. In his hands, the acceptance of one of the partners binds the partner-
ship, as he is ignorant of the circumstances under which it was created, and takes it on
the credit of the partnership name." To the same effect is Shirreff v. AVilks, 1 East,
48. It was there held, that two (of three) partners, who had contracted a debt prior to
the admission of the third partner into the firm, could not bind him without his assent
by accepting a bill drawn by the creditor upon the firm in their joint names ; but such
security is fraudulent and void as against the third partner. And see Ex parte Gould-
ing, 2 Glyn & J. 118 ; Ex parte Bonbonus, 8 Ves. 540; Green v. Deakin, 2 Stark.
347. The same rule is settled in this country by a great number of cases. See Liv-
ingston r. Hastie, 2 Caines, 246 ; Lansing v. Gaine, 2 Johns. 300 ; Livingston v. Roose-
velt, 4 Johns. 251; Dob v. Halscy, 16 Johns. 34; Foot v. Sabin, 19 Johns. 154
Laverty v. Burr, 1 Wend. 529; Williams v. Walbridge, 3 Wend 415; Bank of
11*

126 KOTES AXD BILLS. [CH. V.

admissions of the partner signing are no evidence to prove the
assent of the others. (</) In this conntry it is clearly settled that
the taker must prove the assent of the other partners, for prima
facie such a transaction is a fraud hoth on the part of the debtor

Eochester i-. Bowen, 7 Wend. 158 ; Gansevoort v- Williams, 14 Wend. 133 ; Joyce v.
Williams, U Wend. 141; Wilson r. Williams, 14 Wend. 146; Whitaker v. Brown,
16 Wend. 505 ; Huntington v. Lyman, 1 D. Chip. 438 ; Chazourncs v. Edwards, 3
Pick. 5 ; Munroe v. Cooper, 5 Pick. 412 ; Baird v. Cochran, 4 S. &. R. 397 ; Cotton v.
Evans, 1 Dev. & B , Eq. 284; Weed v. Richardson, 2 Dev. & B. 535; Mauldin r.
Branch Bank, 2 Ala. 502 ; Smyth v. Strader, 4 How. 404 ; Long v. Carter, 3 Ired. 238 ;
N. Y. F. las. Co. v. Bennett, 5 Conn. 574 ; Andrews r. Planters' Bank, 7 Snicdcs & M.
192 ; Rogers i'. Batchelor, 12 Pet. 221 ; Clay v. Cottrell, 18 Penn. State, 408 ; Lanier r.
McCabe, 2 Fla. 32. In Livingston v. Roosevelt, 4 Johns. 251, it appeared that in 1803
A and B entered into j)artnership as sugar-refiners, and published in two of the Gazettes
printed in the city of New York (and which were taken by C), that they had entered
into partnership in the sugar-refining business, under the firm of A & Co. In April,
1805, B, without the knowledge or consent of A, purchased a quantity of brandy of C,
for which he gave his individual note payable to the firm, and indorsed by him with tho
name of the firm. The bill of parcels, by the direction of B, was made out in his name
only, and the brandies were shipped to the West Indies in a vessel belonging to B,
and on his own account ; and C, in order to obtain the drawback, made oath at the
custom-house that the brandy was sold to B. A and B had entered the name of the
firm at two of the banks in the city of New York, and B drew checks and made and
indorsed notes in the name of the firm, which were regularly paid, and the banks had
considered A and B as general partners. C, when he sold the brandy, required the
partnership security, and it did not appear that he knew of the limitation, until after its
dissolution in June, 1805, notice of wiiich was also published in two of the newspapers.
Held, that the partnership was not liable on the note. In Davenport v. Runlett, 3
N. H. 386, R. and T. were partners in trade, and while they were tiius partners, T.
boarded with D. and gave to the latter a note, in the name of the firm, for the price of
the board, without the knowledge of R. Ueld, that the personal expenses of j)artncrs
could not be presumed to be a partnership concern, and that R. could not be held upon
the note, until the plaintiflf should show affirmatively tiiat T. had authority thus to bind
the firm. In Gansevoort v. Williams, 14 Wend. 133, where, upon the renewal of an
accommodation note, the borrower presented to his accommodation indorser for signa-
ture a note to which he had affixed the name of a firm of which he had recently become
a member, as makers ; it was held, that the indorser was chargeable with notice that the
note was given for the individual debt of the borrower, and could not, ui)on the dis-
honor of the note, recover against the firm. In Tanner in Hall, 1 Penn. State, 417,
where a partner made a note in his own name in favor of a third person, who indorsed
it for his accommodation, and the partner then added the indorsement of his firm, and
had the note discounted at a bank and the proceeds carried to his separate account; it
was hi'ld, that tiie bank was chargeable with notice tiiat the transaction was not within
tiic course of the [lartnersliij) business. And sec Manning v. Hays, 6 Md. 5. In Coop-
er V. McClurkan, 22 Penn. State, 80, where a partner drew a bill of exchange in the
name of the firm on himself, i)ayable to the order of the firm, accejttcd it in iiis own
name, indorsed it in the name of the firm, and placed it in the hands of a bill-broker,

(7) Hickman v. Reineking, 6 Blackf. 387.

CH. v.] PARTNERS. 127

and the creditor. (/•) In England, it seems, perhaps, that this
authority is presumed until they prove the contrary. (s) "We
have some doubt, however, whether the authorities which indi-
cate this can be sustained upon any well-established principle ;
and we regard them as departing from the rule aj)plicd by Lord
Kenijon and Lord Eldon.[t)

who negotiated it ; it was held, that the form of the bill was sufficient to put the holder
upon inquiry, and that the firm miglit defend by showing that it was tujt a partnership
transaction, but that the bill was drawn and negotiated by tlie paitncr for his individual
use. But in Ihmsen v. Ncgley, 25 Peiin. State, 297, where an individual, who was a
member of two firms, made a note in the name of one firm, payable to himself, and
indorsed it with tlie name of the otlier firm ; it was held, that this was not sucli a case
as to require the plaintiff, a holder for value before maturity, to prove the assent of the
partners to such indorsement, or that the proceeds were ajiplied to the benefit of the
firm. See Murphy v. Camden, 18 Misso. 122. And see ante, p. 108, note iv.

(/•) Dob V. Halsey, IG Johns. 34 ; Foot v. Sabin, 19 Johns. 154 ; Sweetser v. French,
2 Cush. 309; Kemeys v. Richards, 11 Barb. 312; Noble v. M'Clintock, 2 Watts & S.
152 ; Mecutchen v. Kennad_v, 3 Dutch. 230. And see cases, supra.

(s) We state this upon the authority of Swan v. Steele, 7 East, 210, and Ridley v.
Taylor, 13 East, 175.

(t) In Swan v. Steele, A, B, and C traded under the firm of A & B in the cotton
business, C not being known to the world as a partner ; and A & B traded as part-
ners alone under the same firm in the business of grocers, in which latter business they
became indebted to D, and gave him their acceptance, which, not being able to take
up when due, they, in order to provide for it, indorsed in the common firm of A & B
a bill of exchange to D, which they had received in the cotton business, in which C
was interested ; but such indorsement was unknown to C, of whom D, the indorsee,
had no knowledge at the time. Held, that such indorsement in the firm common to
both partnerships of a bill i-eceived by A & B in the cotton business bound C, their
secret partner in that business, and that consequently C was liable to be sued by D
on such indorsement, the latter not knowing of the misapplication of the partnership
fund at the time. In Ridley v. Taylor, it was held, that if one partner draw or indorse
a bill in the partnership name, it will prima facie bind the firm, although passed by the
one partner to a separate creditor in discharge of his own debt ; unless there be evi-
dence of covin between such separate debtor and creditor, or at least of the want of
authority, either express or to be implied, in the debtor partner to give the joint secu-
rity of the firm for his separate debt. Lord Ellenhoroiujh placed considerable reliance
upon the special circumstances of the case. He said : " This bill had an existence,
according to its apparent date, eighteen days before the time of its delivery to the
plaintiff's ; it was drawn for a sum considerably exceeding the debt, and was not only
drawn and indorsed, but accepted also, before it was produced to them ; and although
it is stated in the case, that in fact the bill was drawn and indorsed by Ewbank in the
partnership firm, it does not appear that the plaintiffs knew that it was drawn and
indorsed by him. Under these circumstances it might reasonably be supposed, by the
party to whom it was given, to be a partnership security, of which Ewbank, the i)artner
in possession of it, had for some valuable consideration, or in virtue of some arrange-
ment with Ord, the other partner, become the proprietor, so as to be authorized to deal
with it as his own. At any rate, the contrary does not either actually or presump-
tively appear." See Green v. Deakin, 2 Stark. 347.

128 NOTES AND BILLS. [CH. V

One wlio indorses such a note as surety, in the belief that it is
good against the partnersliip, will not be liable to a holder who
knew that it was made for the private debt of one partner, with-
out the authority or assent of the rest.(w) If the surety, when
ne indor;>ed tlie note, knew the circumstances under which it was
made, he will be liable ; but the burden of proof is on the holder
CO show that tlie surety had this knowledge. (v)

A bill or note made by one partner in the name of the firm,
will be presumed to have been made in the course of partnership
dealings ; and if the other partners seek to avoid its payment, the
burden of proof lies upon them to show that it was given in a
matter not relating to the partnership business, and that with the
knowledge of the payee. (?i?) And it is immaterial as to this,
whether the partnership be a limited or a general one.(.r)

If the action be brought by a subsequent indorsee against
the partnership, and the defendants show that the note was
executed in fraud of the firm, as between the partner executing
it and the payee, it has been held, in this country, that this
will throw the burden of proof upon the plaintiff to show tiiat
he came by the note fairly, and without knowledge of the
fraud. (y) But it has been held otherwise in England. (c)

(u) Livingston i;. Hastie, 2 Caines, 246 ; Chazournes v. Edwards, 3 Pick. 5 ; Williams
V. Walbridjre, 3 Wend. 41.5. See Bowcn v. Mead, 1 Mich. 432.

(i") Chazournes v. Edwards, 3 Pick. 5.

(w) Doty V Bates, II Johns. .544 ; Whitaker v. Brown, 16 Wend. 505 ; Foster i;.
Andrews, 2 Penn. 160; Ensminger v. Marvin, 5 Blackf. 210; Knapp v. McBride, 7
Ala. 19; Tlmrston v. Lloyd, 4 Md. 283; Manning v. Hays, 6 Md. 5; Hamilton v.
Summers, 12 B. Mon. 11.

(r) Barrett v. Swann, 17 Maine, 180 ; Holmes v. Porter, 39 Maine, 157.

ill) Munroe v. Cooper, 5 Pick. 412 ; Bank of St. Albans v. Gilliland, 23 Wend. 31 1 ;
Bank of Vcrgennes v. Cameron, 7 Barb. 143. And sec post, chajiter on Holder.

(;) Musgrave v. Drake, 5 Q. B. 185. In this case it was proved that all the defend-
ants were partners, and that one of them, who had suffered judgment by <li'fault, had
accepted the bill in the name of the firm, in fraud of the partnership, and not for part-
nersiiip purposes. Held, that such proof, without evidence of knowledge on the part
of the j)lainiitr, diil not oblige him to prove the circumstances under which the bill was
indorsed to him. The question arose, under the new rules of pleading, ui)on an issue
joined upon a plea of non acr.qni. Lord Deiinian said : " We have taken pains to ascer-
tain what, as understood in the other com'ts, would be the course at Nisi Prius on tho
trial of such an issue as this. We find that the other courts agree in our view, which
is this: Where issue is joined on a plea of non acccpil, and the ])roof offered of tho
acceptance is the signature of one partner competent to bind the firm, then, though the
defendants show that this signature was a fraudulent act on the |)art of such partner,
yet if the proof docs not affect the plaintiff with knowledge of tho fraud, that docs not

on. v.] PARTNERS. 129

The authority of one partner to l/uid another, hy .signing
lulls and not(!.s in their joint names, is only an implied au-
thority, and may be rebutted by express previous notice to the
party taking such security from one of them, that tiie other
would not be liable for it. And this, though it were repre-
sented to the holder by the party signing such security, that
the money advanced on it was raised for the j)urpose of being
applied to the payment of partnership debts ; and tiiough the
greater part of it were in fact so api)lied.(a)

It has been lield, that if a bill was accepted in a partnership
uame, and the proceeds were intended and applied for the ex-
clusive benefit of the partner signing it, with the knowledge
of tiie holder as to a part of the proceeds, he can recover of
the partnership the remainder of the bill, in relation to which
he did not know that it was applied to the private benefit of
one partner alone, on the ground that the objection of fraud
does not apply to this part. (6) But we think this decision open
to question.

It has also been held, that a note in the words, " I promise
to pay," (fee, signed by one member of a firm for the rest, as

put the plaintiff to an answer, nor make it necessary for him to give any explanation
or account of the transaction." But see Grant v. Hawkes, Chitty on Bills, 9th ed.,
42, note c.

(a) Gallway v. Matiicw, 10 East, 264, 1 Camp. 40.3. Lord Ellenhoronrjh said: " Tho
general authority of one partner to draw bills or promissory notes to charge another is
only an implied authority ; and that implication was rebutted in this instance by the
notice given by Smithson, who is now sought to be charged, which reached the plain-
tiff, warning him that Mathew had no such authority. It is not essential to a part-
nership that one partner should have power to draw bills and notes in the partnership
firm to charge the others ; they may stipulate between themselves that it shall not be
done, and if a third person, having notice of this, will take such a security from one
of the partners, he shall not sue the others upon it in breach of such stipulation, nor in
defiance of a notice previously given to him by one of them, that he will not be liable
for any bill or note signed by the others." See further. King v. Faber, 22 Penn. State,
21 ; per Colden, Senator, in Smith v. Lusher, 5 Cowen, 688 ; 1 Parsons on Cont., pp.
157, 158.

[b] Wintle i-. Crowther, 1 Cromp. & J. 316. See Wilson v. Lewis, 2 Man. & G. 197.
In Gamble v. Grimes, 2 Ind. 392, a bill of exchange was drawn on a firm, and was
accepted by one of the partners in the name of the firm. The bill included an indi-
\idual debt due by the partner accepting, and also a debt due by the firm. Held, that
the drawers of the bill could recover on the bill the amount of the firm debt included
in it. In King v. Faber, 22 Penn. State, 21, it was held, that a partner cannot render a
firm liable for a note for his individual debt, by including within it a debt of the firm
forming a small portion of it.

Vol. I.— I

130 NOTES AXD BILLS. [CH. V

"A. B., for C. D., E. F.," <tc., will bind the whole firm.(c) So
if the note begin, " I promise to pay," &c., and be signed with
the partnership name, as " A. B. & Co.," it will bind the firm.(^^)
A partner drawing bills or notes for the firm in a fictitious
name, and indorsing them with the partnership name, the pro-
ceeds being applied to partnership purposes, binds all the part-
ners by the indorsement. (e) And so he does, it seems, although
the money be not so applied, if the bills or notes were indorsed
to a bona fide holder, in the line of the firm's business. But if
a bill is drawn by one partner in his own name, and the name
or style of the copartnership is not on the paper, the members
of the firm will not be liable as drawers, even if the purpose of
the bill was to raise money for the firm, and the money was so
applied. (/)

(c) Gallway v. Mathew, 10 East, 264, 1 Camp. 403 ; Staats v. Howlett, 4 Denio, 559.
In Hall V. Smith, I B. & C. 407, where a promissory note beginning, " I promise to
pay," was signed by one member of a firm for himself and his copartners ; it was held,
that the holder might charge either the signing partner or the firm, at his election.
But this case was overruled in Ex parte Buckley, in re Clarke, 14 M. & W. 469,
where it was held, that the holder of such a note had not a separate right of action
against the partner so signing, but that the firm alone were liable. Parke, B. said :
" This is prima facie a promise by one partner, for himself and the other three partners,
and it amounts to one promise of the four persons constituting the firm ; and if Mitch-
ell had autliority, the firm is bound. I really must say that 1 think Hall v. Smith can-
not be supported. The partner, in making the promise, is only an agent for the firm.
Then does it bind him personally, or does it bind the firm ? No doubt the instrument
was intended to bind the fii'm ; and as he had authority as a partner to do it, it had
that effect." See Maclac v. Sutherland, 3 Ellis & B. 31 ; Ex parte Christie, 3 Mont.
D. & De G. 736.

(c/) Doty V. Bates, 11 Johns. 544.

(/) Siff'kin V. Walker, 2 Camp. 308. In this case it was held, that if a promissory
note appears on the face of it to be the separate note of A only, it cannot be declared
on as tlie joint note of A and B, though given to secure a debt for which A and B
were jointly liable. Lord Ellenhorour/h said : "How can I say that a note made and
signed by one in his own name is the note of him and another person neither mentioned
nor referred to 1 " In Emly t;. Lye, 15 East, 7, where one of two partners drew bills
of exchange in his own name, wliich he ])rocured to be discounted with a banker
through the medium of the s-ame agent wlio procured the discount of other bills drawn
in tiie partnership firm with the same banker, and the proceeds were carried to tlio
partnersiiip account; it was held, that the banker liad no remedy against the ])artner-
ship, either upon the bills so drawn by the single partner, or for money had and re-
ceived througii the medium of such bills ; the money having been advanced solely on
the security of the parties whose names were on the bills by way of discount, and not
by way of loan to the partnership ; though the banker conceived at the time that all
the bills were drawn on tlie partnership account. And sec Ex parte Emly, 1 Rose,

en. v.] PARTNERS. 131

It sometimes happens that the business of the copartnership
is conducted under the name of one of the partners, the firm
having no other name or style ; and then it may be difficult
to discriminate between notes made or indorsed by him as
an individual, and those intended to bind the copartnership.
From the reason of the case and the authorities, the following
rules may be applicable to questions of this kind.

In the first place, if the partner signs the paper in the business
of the firm, and intending to sign as a partner, this is the
firm's paper, (o") And if the paper be signed in fact in the
business and for the benefit of the firm, the other partners
cannot deny their obligation, merely because the signer intend-
ed the paper should be taken as his own, unless it was in fact
taken on his private account, knowingly and intentionally on
the part of the holders. But in this country the burden of
proof is upon the plaintiff to show that the paper was given
in the business and for the use of the firm ; for it will be in-
tended, prima facie, to have been given in the separate business
of the partner signing it, and to be binding upon him alone ;

61 ; Bawden v. Howell, 3 Man. & G. 638 ; Holmes v. Burton, 9 Vt. 252 ; GiaefF v.
Hitcliman, 5 Watts, 454 ; Logan v. Bond, 13 Ga. 192 ; Hammond v. Aiken, 3 Rich.
Eq. 119. In Haldeman v. Bank of Middletown, 28 Penn. State, 440, a draft was
drawn in the firm name by one of the partners, payable to his own order, and by him
indorsed in his own name to one who supposed it was for the purposes of the firm.
The partner applied the money to his private use. Held, that the firm was liable.

[g] South Carolina Bank v. Case, 8 B. & C- 427. In this case A, B, and C carried
on business in copartnership as factors and commission-merchants in England and
America ; in England, under the firm of A, C, & Co. ; in America, in the name of C
alone. When C went to America he had written instructions from his partners, one of
which was : " It is understood that our names are not to appear on either bills or notes
for the accommodation of others, and that they should appear as little as possible on
paper at all, and then only as regards direct transactions with the house here." A, B,
and C, in order to obtain consignments from America, made advances or granted
drafts or bills of exchange, or indorsements of them, to their principals, on the security
of the goods consigned. In order to obtain a consignment from W., C in his own name
indorsed bills for him, which were to be provided for by others drawn by W. on A, C,
& Co. in England, which were to be provided for by the proceeds of the consignment.
Before the latter bills were presented for acceptance, A and B had become bankrupts.
Held, that the indorsement of the bills by C must be considered as an indorsement by
the firm, and that thej^ were liable upon those bills. — But where A and B were part-
ners in a trade carried on in the name of A only, and A drew bills in his own name
payable vo his order, which he indorsed, and afterwards B also indorsed and procured
them to be discounted, it was held, that A and B were not liable upon the bills jointly,
Viless it appeared that A drew and indorsed the bills in the character of, and as repre-
senting, A and B. Ex parte Bolitho, Buck, 100.

132 NOTES AND BILLS. [CH. V.

at least if he is also engaged in business on his own separate
account. (A)

If the note be signed actually for his private account, and the
money be so applied, the partners are not liable, unless the
holder can prove that he took the signature to be that of the
partnership, and was justified in so regarding it by the acts or
words of the partner making it, or by the other partners, or by
the course of their business.(i) If a third person, believing such
a note to be binding on the partners when it is not, sign or in-
dorse it as surety, he will not be liable thereon to one who knew
that it was valid only against one partner. (y)

If the partner obtained the money by representing the signa-
ture to be that of the firm, but misapplied the money, this may

{h) Thus, in Manufacturers', &c. Bank r. Winship, .5 Pick. 11, it was /jeW, that,
where a partnership was carried on in the name of an individual, a note in common
tbrm, signed by such individual, did not prima facie bind his copartners ; and that upon
the question whether it was given for the use of the copartnership, the burden of proof
was on the holder. So in Mercantile Bank v. Cox, 38 Maine, 500, it was held, that if
A and B are doing business as partners under the name of A alone, and a bill of ex-
change is drawn upon A and accepted by him, it is prima facie binding upon A, and
not upon the firm. So in Boyle v. Skinner, 19 Misso. 82, where a note was made pay-
able to J. A. H., and there was a finn composed of J. A. H. and others, doing business
under the style of J. A. H., but no evidence was offered to show to whom or on what
account the note was given ; it was /ifW, that it should be presumed to have been given
to J. A. H. individually. And see, to the same elfect, U. S. Bank v. Binney, 5 Mason,
176 ; Biickner v. Lee, 8 Ga. 28.5; Bank of Rochester v. Monteath, 1 Denio, 402. lu
Furze v. Sharwood, 2 Q. B. 388, which was an action against several defendants as in-
dorsers of bills of exchange. Lord Denman said : " The defendants appear to have been
trustees under a deed, by the provisions of which they were to carry on a business in
the name of Samuel Maine. They did so, and employed Samuel Maine himself to con-
duct the business. Their firm, therefore, so to speak, was Samuel Maine. The in-
dorsement of bills was necessary and incidental to the carrying on such business.
Prima facie, therefore, the signature ' Samuel Maine ' was their signature, and they
would be Ijound by it. But it is said that Maine carried on a scjiarate business of his
own, and that the plaintiff was bound to show that the indorsements in question were
on account of the business of the trustees, and not in his separate business. Now it
appears that the bills were discounted with persons who were in the habit of discount-
ing for the former firm, wlio assigned their effects to the defendants as trustees ; and,
moreover, that the bills in question were not discounted till after Maine liad ceased
to carry on his separate business. Under these circumstances we think tin\t the onus of
sliowing that the indorsements were made on account of tiie separate business, and not
on that of the trustees, which was the general and ostensible business, lay on the
defendants."

(t) U. S. Bank v. Binney, 5 Mason, 176 ; Buckncr v. Lcc, 8 Ga. 28.'> ; Woodward
V. Winship, 12 Pick. 430.

(j) Livingston v. Ilastie, 2 Gaines, 246; Chazournes v. Edwards, 3 Pick. 5; Wil
liams V. Walbridgc, 3 Wend. 415.

CH. v.] PARTNERS. 133

be a fraud on the partners, but it will be a fraud wImcIi the part-
nership enabled him to commit, and the other partners will be
liable, unless the holder had notice or knowledge, or sufficient
means of knowledge, of the intended fraud. (A;) If the other
members knew that the transaction was done in the name of the
firm, and do not dissent or object when they may, they will be
liable on the note, although they did not know that the purchase
was made on credit, and even if the purchase were not properly
within the authority of the party making [t.{l)

Partners, as between themselves, may enter into any lawful
stipulations they like, and these are binding upon them ; l)ut the
law interferes in respect to them, when the question is between
the partners and a third party. The rule is this : If a partner,
by agreement with his copartners, has no authority to sign for
them at all, or none to sign for them in a particular case, and
nevertheless does sign for them, this binds the partners as to all
third parties who did not know of the agreement or want of au-
thority, (m) But it is fraud on the part of that partner against
the other partners ; and one who takes papers so signed, with a
knowledge of the agreement, has a knowledge of the fraud also,
(for a mistake as to the law or the legal rights of the parties
cannot help him,) and he is, therefore, a party or privy to the
fraud, and cannot hold the other partners.

In general, as we have seen, however a partner may transcend
his authority or violate his stipulations with his partners, this is
no defence for them against an innocent party ; and even securi-
ties which are void as against the firm in the hands of those who
knew the fraud in which they originated, may be good in the
hands of innocent holders for value. But, on the other hand, if
a firm sues on a note or bill, a good defence against any one part
ner is a good defence against all ; and this even iT it rest on his
fraud, of which they were not cognizant or participant. Thus,
if one partner relieves an acceptor of his responsibility, this dis-
charges him as to all, although it was a fraudulent act of the
partner, (m) And this rule has been applied where A indorsed to

{k) U. S. Bank v. Binney, 5 Mason, 176 ; Buckner v. Lee, 8 Ga. 285.
(I) Woodward v. Winship, 12 Pick. 430.

(m) Kimbro v. Bullitt, 22 How. 2.56 ; Winship v. Bank of United States, 5 Pet. 529;
Miller v. Hughes, 1 A. K. Marsh. 181 ; Gall way v. Mathew, 10 East, 264.

(n) Thus, in Kichraond v. Heapy, 1 Stark. 202, one of three partners undertook to
VOL. I. 12

134 NOTES AND BILLS. [CH. V.

a firm of A, B, & C, a bill drawn in his own name on D, and ac-
cepted. A had given D his promise in writing to provide for the
bill, and it was held, in a suit by the firm against the drawee,
that A's promise bound the other partners. (o) Perhaps, how-
ever, the other partners might have some relief in equitj,(p)

provide for two bills of exchange, drawn by the three partners, and accepted by a
fourth person when they should become due. Held, that such acceptancps would not
support a commission of bankruptcy, on the petition of the three partners against the
acceptor ; although the conduct of the partner might, as against his copcrtners, have
been fraudulent. Lord EUenborough said : " Suppose that an action had been brought
by the three partners on these bills, would it not have been an answer that one of the
plaintiff's had promised to provide for the bills 1 Are they not bound by his acts
when they are to recover by his strength 1 " The principle was carried very far in
Jacaud v. French, 12 East, 317. Jacaud being partner with Blair in one mercantile
house, and with Gordon in another, the house of Blair & Jacaud indorsed a bill of
exchange to the house of Jacaud & Gordon ; after which Blair, acting for the house of
Blair & Jacaud, received securities to a large amount from the drawer of the bill, upon
an agreement bj' Blair that the bill should be taken up and liquidated by his house,
and, if not paid by the acceptors when due, should be returned to the drawer. Held,
that, the securities being paid and the money received by Blair in satisfoction of the bill,
Jacaud was bound by this act of his partner Blau-, whether in fiict known to him or not
at the time, not only in respect of his partnership interest in the house of Jacaud &
Blair, but also individually in other respects , and therefore that he together with
Gordon, his partner in the other house, could not maintain an action as imlorsees and
holders of the bill against the acceptors, after such satisfaction received thiough the
medium of, and by agreement with, Blair in discharge of the same. Lord EUenliorough
said : " Jacaud, being a partner with Blair, must be considered as having, together with
Blair, received money from the drawers to take up this very bill. How tlicn cnn he,
because he is also a partner with Gordon in another house, be permitted to contravene
his own act, and sue upon this bill, which has been already satisfied as to liini ? If A
and B, partners, receive money to apply to a particular purpose, A and 0, in another
partnership, could never be permitted to contravene tlie receipt of it for that purpose,
and apply it to another." Bivjlei/, J. said : " Jacaud is not to be considered as a boua
Jide holder of this bill, because he has in effect, by the act of his partner Blair, received
money for the purpose of taking it up, which ought to have been so applied."

(o) Sparrow v. Chisman, 9 B. & C. 241.

{p) In Jones v. Yates, 9 B. & C. 532, which was an action of trover by the assignees
of Sykes & Bury, to recover for tliree bills of exchange wliich Inid belonged to Sykcs &
Bury, and had been indorsed by Sykes, in fraud of the firm, for the payment of his
private debt, Lord Tenlerden said : " Wo are not aware of any instance in wliich a
person has been allowed, as plaintiff in a court of law, to rescind his own act, on the
ground that such net was a fraud on some other person ; wliethcr the party seeking to
do tills lias sued in his own name only, or jointly with such other jierson. It was well
observed on behalf of the defendants, that where one of two persons, who have a joint
right of action, dies, the right then vests in the survivor, so that in this case (if it bo
held that Sykcs & Bury may sue), if Hury had died before Sykes, Sykcs might have
sued alone, and thus for his own benefit liave avoided his own act by alleging his own
misconduct. Tlie defrauded partner may, perhaps, have a n'lnedy in ciiiilty, by a suit
in his own name, against his partner and tlie person witli whom the fraud was com-
mitted. Sucli u suit i.s free from the inconsistency of a party suing on tiic ground of

CII. V.J PARTNERS. 135

In general, or at least frc<incntly, a holder who takes security
from one or more partners liable on negotiable paper discharges
the rest. But it would seem that a holder who, in good faith,
and by an express bargain, retains the original paper, and re-
serves his rights against all the partners, may revert to them if
the security prove ineffectual. (^)

If a partner, intending to use the name of the firm, make a
slight and unimportant variation in it, the firm is still bound ;
but not if the variation be material. (r) If a bill, however, be
drawn upon a partnership, and accepted by one partner for part-
nership pur{)0ses, but in his own name, the acceptance binds the
firm; (i) and even a bill drawn by one partner on his own firm, for
a partnership debt, will be valid, and held as an accepted bill.(^)

his own misconduct. There is a great difference between this case and that of an
action brought against two or more partners on a bill of exchange fraudulently made
or accepted by one partner in the name of the others, and delivered by such ])artner to
a phuniiff in discharge of his own private debt. In the latter case, the defence is not
the defence of the fraudulent party, but of the defrauded and injured party. The
latter may, without any inconsistency, be permitted to say in a court of law, that
although the partner may for many purposes bind him, yet that he has no authority to
do so by accepting a bill in the name of the firm for his own private debt. The party
to a fraud, he who profits by it, shall not be allowed to create an obligation in another
by his own misconduct, and make that misconduct the foundation of an action at law."

(q) Ev;xns V. Drummond, 4 Esp. 89; Bedford v. Deakin, 2 Stark. 178, 2 B. & Aid.
210 ; Thompson v. Percival, .5 B. & Ad. 925 ; Estate of Davis & Desauque, 5 AVhart.
5.30 ; Yaniell v. Anderson, U Misso. 619 ; Vernon v. Manhattan Co., 22 Wend. 183 ;
Parker v. Cousins, 2 Grat. 372. But see contra, Isler v. Baker, 6 Humph. 85.

(r) Williamson v. Johnson, 1 B. & C. 146. In Faith v. Richmond, 11 A. & E. 339,
it was liehl, that where a partner, accustomed to issue notes on behalf of the firm,
indorses a particular note in a name differing from that of the partnership, and not pre-
viously used by them, which note is objected to on that account in an action brought
upon it by the indorsee ; the proper question for the jury is, whether the name used,
though inaccurate, substantially describes the firm, or whether it so far varies that the
indorser must be taken to have issued the note on his own account, and not in the ex-
ercise of his general authority as partner. In that case a partner in " The Newcastle
and Sunderland Wall's End Coal Company " drew a note in the name of " Tiie New-
castle Coal Company," and made it payable at a bank where the first-mentioned com-
pany had no account. A verdict for the defendants was not disturbed. In Kirk v.
Blurton, 9 M. & W. 2S4, it was held, that a partner has no implied authority by law
to bind his copartners by his acceptance of a bill of exchange, except by an acceptance
in the true style of the partnership. Therefore, where a firm consisted of J. B. and
C. II., the partnership name being "J. B." only, and C H. accepted a bill in the
name of " J. B. & Co.," it was held, that J. B. was not bound thereby. See Maclae v.
Sutherland, 3 Ellis & B. 31.

Is) Mason v. Kumsey, 1 Camp. 384 ; Jenkins v. Morris, 16 M. & W. 877. See supra,
p 123, note k.

(t) Dougal V. Cowles, 5 Day, 511.

186 NOTES AND BILLS. [CH. V.

One partner cannot bind his copartners by making, in their
name, a joint and several note, without express authority. (m)
But it has been held that such a note will be void only as a sev-
eral note, and good as a joint note.(y) If he uses the actual
names of all his partners on paper in partuersliip business, it
would seem that this might hold them.(iy) If A, B, and C are
in partnership, and a note given by one of tlieni is signed '• A &
Co.," this will be presumed, in the absence of evidence to the
contrary, to be the partnership name.(.'?;)

If a man is a partner in two firms, it is obvious that the one
firm cannot sue the other, either on negotiaV)le paper or on any
contract, although his name appear but in one or in neither of the

(u) Pening v. Hone, 4 Bing. 28, 2 C. & P. 401. In Ex parte Wilson, 3 Mont. D.
& De G. 57, A and B, who were partners, and C, as their surety, gave a joint and
several promissory note to D, by which tliey "jointly and severally " promised to pay
to D the amount of a partnership debt, due from A and B. The note was signed by
A and B, not as individuals, liut in their partnershij) firm, and by C, the surety. Held,
that this note could not be treated as the several note of each one of the three, but as
the several note only of the surety, and the joint note of A and B; and that, on the
bankruptcy of A, who had survived his partner B, the holder of the note could only
rank as a creditor against the joint estate.

((•) Maclae v. Sutherland, 3 Ellis & B 33. Lord CampbeU said : " The expression
in the note by which a separate liability is sought to be created may be easily detached
in construing it, and taken jvo non scn'/ita ; as against the shareholders it is utterly void,
and it does them no injury. The perfect and complete contract of joint liability is not
vitiated by the directors having, ultra vires, written upon the same i)iece of paper
words which are wholly inoperative. If A and B are in i)artnership, and A, for a part-
nership debt lioiinjide gives a promissory note in the partnership firm, there seems con-
siderable difficulty in contending that A and B may not be jointly sued u])on it, because
it i)rofesses to hind them separately as well as jointly. Why should the security perish
instead of being available, when, as far as it is sought to be enforced, it might lawfully
be created, and it expresses the Intention of the parties ? Surely this would be unjust,
and contrary to well-known legal maxims."

(w) Norton f Seymour, 3 C. B. 792. In this case, the firm was " Seymour «& Ayres";
and the note was signed " Tiiomas Seymour, Sarah Ayrcs." Manic, J said : " As to
the form of the note, it is to be observed that it is signed by Seymour in the name of
himself and the other member of the firm. Sup])ose there was no authority so to sign
it, other than the general authority conferred by the partnership, I should hesitate to
say that one of two partners could not bind the other by sigjiing the true names of both,
instead of the fictitious name." And see McGregor i'. Cleveland, .5 Wend. 47.5.

(r) Drake i'. Elwyn, 1 Caines, 184. The note in this case was signed " Ehvyn &
Co." Kml, J. Siiid : " As such a signature imjiorted a copartnership, and a copartner-
ship did exist at the time between Elwyn and the other defendants, I think it is to bo
presumed that such was the name of the linn, and that it was sufficient to cast upon
the defendants the burden of proving wiiiit was the name of the house or firm, if a dif-
ferent name existed. They did not attempt to re[)cl the prcsuinidion, and of eour.s't it
belonged to the jury to consider of, and to draw that presumption."'

en. v.] PARTNERS. 137

firms. For all the names must be truly set forth in tlie declara-
tion, and the same party cannot be plaintiff and defendant. (^)
But if one of tliese firms makes a note to the other, and tlie other
indorses it over, the indorsee may hold either or both firms. yz)
So the death of the partner would terminate all this difficulty. (a)
And if a man be a partner in two firms, both of whicli use the
same style, and he draw a bill or note in that style, it is said
that the holder may elect which firm to sue.(/>) But certainly
the circumstances under which he took the paper, or the course
of business, might confine him to one.

(y) Thus, in Mainwarinf^ v. Newman, 2 B. & P. 120, A made a note, payable to
himself, and to 13 and C. Tliis note was indorsed to C, D, and E. HtlJ, that the in-
dorsees could not maintain an action, either against all the indorsers jointly, or against
one of them severally. Not against them all jointly, because then the same person
would be both plaintitl" and defendant; and not against one severally, because the con-
tract was joint. So in Neale v. Turton, 4 Bing. 149, where the plaintiff, a holder of
shares in a washing company, drew bills on the directors of the company for goods
fnrnished by him ; and the bills were accepted by the secretary of the company "for
the directors " ; it was held, that the plaintiff could not recover on these bills against
the company. Best, C. J. said: "It may be admitted, that if a partner were to draw
ou other partners by name, and they were individually to accept, he might recovci"
against them, because by such an acceptance a separate right is acknowledged to exist.
But that is not the case here, for the bills are drawn on the directors of the company,
and accepted for the directors. They are the agents of the company, and accept as
agents of the company. Tlie case, therefore, is that of one partner drawing on the
whole firm, including himself. There is no principle by which a man can be at the
same time plaintiff and defendant." And see Teague r. Hulibard, 8 B. & C. 345 ;
Fox V. Frith, 10 M. & W. 131 ; Lomas v. Bradshaw, 9 C. B. 620 ; Mahan v. Sherman,
7 Blackf. 378; Babcoek v. Stone, 3 ISIcLean, 172.

(s) Thus, in Pitcher i'. Barrows, 17 Pick. 361, which was an action by an indorsee of
a promissory note, made by a firm consisting of five members, and payable to two of
the same number, constituting a separate firm, S/taiv, C. J. said : " Though no ques-
tion was made at the argument as to the original form of this contract, it may be proper
to make a remark ujion that subject. It was a promise by five, to pay to two of their
own number or their order, and as an original contract it could not be enforced ut law,
for the obvious reason that the two promisees could not sue themselves as promisors,
and the other three promisors were not liable without them. But this is a difficulty
attending the remedy only, not the right, and when the note is indorsed, by those
having a right to indorse it, to one against whom there is no such exception, whereby
he acquires a legal interest and right to sue in his own name, tlie difficulty vanishes.
It is like a note payable to one's own order, which, though till indorsement not a good
legal contract, becomes such by the Indorsement." And see, to the same effect,
Blake i\ Wheadon, 2 Hayw. 109; Thayer v. Buffum, 11 Met. 398; Davis i>. Briggs,
39 Maine, 304; Smith v. Lusher, 5 Cowen, 688.

(a) Byles on Bills, 6th ed., p. 31.

(6) Baker v. Charlton, Peake, 80; McNair v. Fleming, 1 Mont, on Partn. 32, note r
And see Swan v. Steele, 7 East, 210.
12*

133 NOTES AND BILLS. [CH. V.

The general authoritj of one partner to bind the rest springs
from the course and usage of business in which the firm is en-
gaged. In trading partnerships, the power of one partner to bind
the others bj- a bill or note given in the usual course of the busi-
ness undoubtedly exists, (c) But it has been repeatedly held,
that if the partnership be for a business not requiring the giving
of notes, or if the note in question is clearly outside of the busi-
ness of the partnership, the partners not signing are not bound.
This rule applies to attorneys, (c?) or partners in the practice of
medicine, (e) or in keeping tavern, (/) or in farming.(g') or min-
ing, (/j) We should, however, have no doubt in any of these cases,

(d) Thus, in Hedley v. Bainbridge, 3 Q. B. 316, which was an action against an
attorney on a promissory note, given by his partner in the name of the firm, Lord
Deitman said : " No doubt a debt was due from the firm ; but it does not follow that
one partner had authority to give a promissory note for that debt. Partners in trade
have authority, as regards third persons, to bind the firm by bills of exchange, for it is
in the usual course of mercantile transactions so to do ; and this authority is by the
custom and law of merchants, which is part of the general law of the land. Bnt
the same reason does not apply to other partnerships. There is no custom or usage
that attorneys should be parties to negotiable instruments ; nor is it necessary for the
purposes of their business." Levy v. Pyne, Car. & AL 433, is to the same effect.

(e) In Crosthwait v. Ross, 1 Humph. 23, it was held, that a partner in the practice
of physic has the power to bind his copartner by the execution of a note in the name
Oi' the firm for the purchase of all things necessary to be used by thcni in their voca-
tion, such as medicines, surgical instruments, and the like ; but has no power to draw
bills or make notes for the purpose of raising money ; money not being an article for
which such a firm has a direct use.

{/) In Cocke v. Branch Bank, 3 Ala. 175, it was held, that one of a firm o^
tavern-keepers has no authority to bind his copartners by a note, the consideration of
which has no connection with tlie business of the joint concern ; and the want of such
consideration may l)e shown in defence to an action by a bona Jide holder of the note.
And see Williams v. Thomas, 6 Esp. 18.

{g) See Kimbro v. Bullitt, 22 How. 267; per Litlledak, J. in Dickinson v. Valpy,
10 B. & C. 128. The case of Grcensladc v. Downer, 7 B & C. 635, which is usually
cited in support of this proposition, was decided on another ground.

(/i) Dickinson v Valpy, 10 B. & C. 128. Littlrdale, J. said : " In the case of an or
dinary trading ])artnersliip, the law implies that one partner has authority to bind
another by drawing and accepting bills, because the drawing and accepting of bills is
necessary for the purposes of carrying on a trading parlnershii) ; but it does not follow
that it is necessary for the purpose of carrying on the business of a mining company.
Evidence of the nature of the company ought to have been given, to show that, in ordef
to carry into effect the purposes for which it was instituted, it was necessary that indi
vidual members should have the power of binding the others by drawing and accept
ing l)iils of (.xciiange. In the absence of any such evidence, I am of o))inion that it
is not competent to individual members of a mining company (which is not a regular
trading com|)any) to bind tlic rest by drawing or accepting bills. One of several per

CH. v.] ' PARTNERS. 139

if the concerns were of such magnitude as to require a large
capital, and credit, tliat a note given Ijy one member of the firm
in the usual course of the business would bind the firm. This
would depend very much, however, upon the usage either of the
particular firm, or of other firms engaged in the like business. (i)

sons jointly interested in a farm has no power to bind the others by drawing or accept-
ing bills, because it is not necessary, for the purposes of cairj'ing on the fanning busi-
ness, that bills should be drawn or accepted. The object of persons concerned in such
an undertaking is to sell the produce of the farm ; and though, with a view to such
sale, it may be necessary to buy many things in order to raise and put the produce in
a salable state, yet it is not necessary for that purpose that bills of exchange should
be drawn. Even if that were necessary for the purpose of carrying on a mining con-
cern, though not for the purpose of managing a farm, it was incumbent on the plain-
tiff, in this case, to have shown, either from the very nature of this company, that it
was necessary, or, from the practice in other similar companies, that it was usual; for
if it were necessary or usual, it would be reasonable that the directors should have such
a power, and the law would imply it." Parke, B. said : "I very much doubt whether
there is any authority in raining companies, arising by implication from the nature of
their dealings, (and it is to be observed that there was no proof of any usage to do this
in such companies,) to draw bills of exchange. The argument would go to this, that
all persons who deal in the produce of the land which they jointly occupy, because
they might sell that produce at a distance, would have an implied power given to each
other to draw bill* of exchange for the purpose of receiving payment for it. If the
argument was valid, it would show tiiat farmers acting in partnership, as well as min-
ers, would have, as incidental to the relation of partners, an authority to draw bills of
exchange upon the persons to whom the produce of the land was sold. There is, how-
ever, no necessity to decide that point, because there is no ground, at all events, to say
that mining partners have an implied authority from one another, arising from the na-
ture of tlicir business, to draw such a bill of exchange as this ; for, upon the face of it,
this is a bill drawn by the company upon themselves, and though it is in form treated
as a bill of exchange, it is in substance only a promissory note ; and the effect of say-
ing that one member of a company like this can draw such bills or promissory notes
would be, that each of the partners in the concern would have the power of pledging
the others, not oidy to the extent of the goods the company might sell in the course
of their ordinary dealings, but without any limit at all, inasmuch as one partner might
raise money to any amount by drawing bills of exchange, and, if they were passed
into the hands of innocent indorsees, the partners would be liable to the full extent of
their fortunes."

(i) In Kimbro v. Bullitt, 22 How. 2.56, 268, a bill of exchange was drawn by one
partner of a firm which was engaged in fiirming, in running a steam saw-mill, and in
trading. The court, per ClijforJ, J., were of the opinion that, if the firm had been en-
gaged in farming, no power would have existed in one partner to bind the others by a
bill or note, but that, as they were also engaged in trading, such power existed. In
respect to the steam saw-mill, Clifford, J. said : " They were also engaged in running a
steam saw-mill, for manufacturing purposes ; and common observation will warrant the
remark, that those who engage in that business always want capital to carry it on, and
frequently find it necessary to ask for credit. Like those engaged in other branches of
manufactures, they buy and sell, and have occasion to remit money and collect it from
distant places." See however, contra, as to a steam saw-mill being within the rule,

140

KOTES AND BILLS.

[CH. V.

Members of a joint-stock company have no power, as siicli, to
draw bills or make notes in the name of the company, (j') And
although there may be occasional or special partnerships, and
within their limits the whole law of partnership applies, the mere
joint promise of two to make a certain purchase and pay for it in
good negotiable notes, to be indorsed by them, does not consti-
tute them partners, or otherwise authorize one of them to in-
dorse in the name of the other. (A:)

Suretysliip is not, in general, within the business of a partner-
ship. And therefore, if to a bill or note already signed, a part-
ner writes the name of his firm, with the word " surety " added,
this does not bind his partners without their assent. (/) And if a
partner sign the name of his firm, ostensil)ly as makers of a note,
but in fact as sureties, and this is known to the payee, he cannot
enforce the paper against thera.(/>i) The same principle, of
course, applies to all cases of making or indorsing bills or notes
by one partner, on behalf of his firm, for the accommodation of
third persons. (w) But it is otherwise where one partner, for the
benefit of the firm, exchanges the acceptance of the firm for
the acceptance of a third person ; both acceptances being for
the same amount. In that case the firm will be held.(o)

If it appears upon the face of a bill or note, that it was signed
by a partnership as sureties merely, this will be notice to any
one who may take it, that it was given out of the course of
the partnership business. Therefore, no subsequent holder can
recover on it, without proving the assent of all the partners
to the signature. But if there is nothing on the face of the
paper to indicate for what purpose it was given, any one who
shall take it bona fide^ without knowledge that it was given out

Lanier v. McCabe, 2 Fla. 32. On the question of usage sec the case of Dickinson t*.
Valpy, 10 B. & C. 128.

[j) Brainah v. Roberts, 3 Ring. N. C 963; Bait i'. Moncll, 12 A. & E. 745; Dick
insoii V. Valpy, supra.

[k) Biillou V. Spencer, 4 Cowcn, 1C3.

(/) Foot V. Rabin, 19 Johns. 1.'54; Boyd v. Plumb, 7 Wend. 309; Butler v. Stock
ing, 4 Scld 408; Rollins w. Stevens, 31 Maine, 4.04; Andrews v. Planters' Bank, 7
Smedcs & M. 192 ; Wagnon v. Clay, 1 A. K. Marsh. 257.

(m) Bank of Rochester v. Bowcn, 7 Wend. 158; Rolston v. Click, 1 Stew. 526.

(h) Stall V. Cafskill Bank, 18 Wend. 466 ; Beach v. State Bank, 2 Ind. 488; Che
nowith V. Cliambcrlin, 6 B. Mon. 60; Sweetscr v. French, 2 Cush. 309; Lavcrty r
Burr, i Wend 529.

(o) Gano r. Samuel, 14 Ohio, 592. See Darling v. March, 22 Maine, 184.

CH. v.] PARTNERS. 141

of the course of the partnership business, will be protect

It has been said, that if the maker of a note carries it to a
bank to get it discounted on his own account, or transfers it
to a third person, with the name of a firm indorsed thereon,
the transaction on its face shows that it is a mere accommo-
dation indorsement, or the note would not be in the hands
of the maker ; and the bank or person who receives it from
the maker being thus chargeable with notice that the firm
are mere sureties of the maker, and that it has not passed
through their liands in the ordinary course of partnership busi-
ness, the members of the firm who have been made sureties
witliout their consent are not liable to such holder of the note. (7)

Sometimes a partnership name is signed, in form, as surety
for a third person, wiiile really the undertaking is for their
own debt, and the note is given for their own benefit. In such
cases the substance of the transaction, and not the form, will
be regarded. Thus, if a partner, acting for the firm, procures
A. who is a debtor of the firm, to give his note for the amount
of the debt to C, who is a creditor of the firm, and thereupon
the partner adds the partnership name to the note, as surety,
and C takes it in payment of his debt, the firm will be liable on
the note.(r)

The giving of accommodation paper is considered as so far
out of the line of regular commercial business, that, if such
paper be made and given by one member of a firm, the other
partners will not be holden to any party chargeable with notice
or knowledge that it is accommodation paper, unless it was
made with their consent, (s) But when a bill or note has been
given in the partnership name, witli the consent of all the
partners, for the accommodation of a third persoii, it has been
held that such bill or note may be renewed from time to time
by a single partner. (^)

(p) See cases supra.

(q) Per Walworlh, C. in Stall v. Catskill Bank, 18 Wend. 478 , Bank of Vergennes
t'. Cameron, 7 Barb. 143. See Austin v. Vandcrmark, 4 Ilill, 259; Gansevoort r.
Williams, 14 Wend. 133.

(r) Langan v. Hcwett, 13 Smcdes & M. 122.

(s) Austin V. Vandcrmark, 4 Hill, 259 ; Stall v. Catskill Bank, 18 Wend. 466 ; Bank
of VcK/jennes v. Cameron, 7 Barb. 143; Swcctser v. French, 2 Cush. 309,

(0 i)undass v. Gallagher, 4 Penn. State, 205.

142 NOTES AND BILLS. [CH. V.

And previous dealings, or recognitions of previous notes or
bills of like kind, or other similar circumstances, may indicate
the consent of the other partners in the case of accommodation
paper, or paper bearing their signature as sureties, in like man-
ner as has been already stated in reference to the authority of
agents.

It may be added, that subsequent recognition or ratification
of negotiable paper, by partners, has the same effect as when
this occurs in a case of agency. And a ratification need not
be express ; it may be inferred from the acts or omissions of
the other partners, after they know, or have tlie means of know-
ing, of the acts of the individual partner, (zf) So where it is
necessary for the plaintiff to show the assent of the copartners
to the giving of a bill or note, he need not show an express
assent ; it may be implied from circumstances, such as the
common course of business of the firm, or the previous course
of dealing between the parties. (v)

Partners are actual and ostensible ; and this they may be,
if well known, although their names be not used in the style
of the firm ; in which case they are liable both on the ground
of the credit they give to the concern, and also of the profits
which they take from it. Or they are secret, in which case
they arc liable on the ground of their participation in the
profits ; or nominal only, in which case they are liable because
of the credit they give, by holding themselves out, or sutfering
themselves to be held out, as partners. But there is a ma-
terial difference between these kinds of partners, in case of
dissolution and notice. A secret partner is not liable for debts
contracted after he leaves the partnership, although ho gives
no notice ; for liis taking of profits, wliich is the only ground
of his lia.l)ility, has ceased. (?<;) A nominal partner, whether
actual or not, is liable, after leaving tlie firm, certainly to those
wlio had formerly dealt with the firm, and have no notice or
knowledge of liis leaving the firm, and no such means of
knowii^dgc as binds them. And he may bo bound even to

(h) Swcctscr V. French, 2 Cush. 309.

(i) Swcctscr V. Frcndi, 2 Cush. 309 ; Beach v. State Bank, 2 Ind. 488 ; Butler v.
Stockiiif;, 4 Seld. 408 ; Duncan i'. Lownrlcs, 3 Camp. 478; Ganscvoort w. Williams,
14 Wend. 133 ; Darling v. March, 22 Maine, 184.

(w) Sec 1 I'arsons on Cont. 143, note h.

CH. v.] PARTNERS. 143

a new customer, wlio comes to tlie firm in tlic belief that he
is a partner, and on his credit, with a sufficient reason for liis
belief (x)

A new partner is not bound for old deljts, unless he expressly
assume them, or agree with the partners to be bound ; or unless
this assumption or agreement may be inferred from his enter-
ing at once into the whole business, interest, and profits of the
concern ; and such a course would generally imply that he
takes all this benefit and property cu77i oriere, and is therefore
bound by the liabilities. But if in this way he is defrauded
into a disastrous connection, this should not bind him to-
wards creditors with whom there are no new dealings on his
credit, and from whom there is no consideration moving to
liim.(v/)

A creditor discharges the former partners and accepts instead
the responsibility of a new firm, either expressly, or by continu-
ing to deal with the new firm, after notice of the transfer of his
account, without any objection, provided this be done or accom-
panied with such words or acts as indicate his purpose of dis-
charging the former partners, but not otherwise. (2:)

Notice of the dissolution of a firm, or of the retiring of a part-
ner, should always be given in the usual way. This is personal
notice by letter or otherwise to all who usually do business with
the firm, and to all creditors of the firm, and public notice by
advertisements. If this is done, the retiring partner is not re-
sponsible for the subsequent debts of the firm, (a) Nor is he
responsible to any one who has actual notice of his retirement.(&)
Death of a general, or even of a special partner, operates a
dissolution of the firm, and as respects the estate of a deceased
partner, no notice need be given. And it has recently been held
that the surviving partners are not bound to give notice of that
fact in order to terminate their liability for the acts of each
other. (6a) In the case cited in our note, there was no evidence

(x) 1 Parsons on Cent. 144, 145, and notes.

ly) 1 Parsons on Cont. 166, note i. See Shirreff v. Wilks, I East, 48; Vere ».
Ashby, 10 B. & C. 288 ; Battley v. Lewis, 1 Man. & G. 155.
(s) Kirwan v. Kirwan, 2 Cromp. & M. 617.
(a) Parsons, Elements of Merc. Law, 2d ed., 172, and notea.
(6) Ibid.
(6a) Marlett v. Jackman, 3 Allen, 287.

144 NOTES AND BILLS. [CH. V.

that the surviving partners knew of the decease ; but the court
said that, even if they had such knowledge, they would not be
obliged to give notice, (c)

On the dissolution of a firm by the death of one of the
members, the survivors are joint tenants, and not tenants in
common, so far that they take the property of the firm by
survivor^^liip, for all purposes of holding and administering the
estate, until the effects are reduced to money and the debts
are paid ; (d) but the harsh doctrine of the jus accrescendi,
which is an incident of joint tenancy at common law, does
not apply. (f') It is an unquestioned principle of law, that
after a dissolution tlie authority of a former partner to bind
the others is gone, except as to the settlement of the estate
of the old partnership, and it is usually stated that he has
no power to malvC any new contracts. It is obvious, however,
that a strict construction of this rule might prevent the partner
whose duty it is to settle up the estate from accomplishing this
olijcct in the most judicious manner. So far as the question is
still an open one, we should consider the true rule to be, that no
contract can be made by one partner after dissolution by which
the otliers will be bound, unless such contract is an appropriate
means for settling up the business of the concern in the most
judicious manner. Their duty is similar in many respects to
that of trustees and agents, (/) and they should, in settling up
the affairs of the old firm, have all the riglits which agents
usually have by the usages of the business in which the old firm
was engaged. In the language of the Supreme Coiirt of Maine,
" The dissolution operates as a revocation of all authority for
making new contracts. It does not revoke the authority to
arrange, liquidate, settle, and pay those before created. "(^)

{d) ])yer v. Clark, 5 Met. 5G2 ; Muriay v. Mumfonl, 6 Cow en, 441.

{e) Buckley v. Rarlicr, 6 Exch. 1G4, 1 Eng. L. & Eq. ."JOG.

(/) Wiishhiirn v. Goodman, 17 Pick. .519. And in Parker v. Pliillips. 2 Ciisli. 175,
178, the court said : " Though n partncrsliij) is dissolved, and the mutual authority of
tlic partners to l)ind each other, as to future transactions, has ceased, yet to some extent,
and for some purposes, in regard to past transactions the partnershij) still exists." See
also Caldwell v. Stileman, 1 Rawie, 212; Beak v. Beak, 3 Swanst. G27.

{fj) Darling r. March, 22 Maine, 184. Sec also Gannett v. Cunningham, 34
Maine, 56.

CII. v.] PARTNERS. 145

Thus, ill a case where a bill of exchange was drawn in blank
l)y one partner, to the order of the firm, and indorsed belbre the
dissolution of the firm, it was held that it might after tiiat event
be filled uj) and negotiated. (/i) And after dissolution one part-
nei' may waive demand and notice, this being considered as
merely a modification of an existing liability ; (t) he may also,
it has been held, lawfully assign to a creditor of the firm a
demand due to the partnership ; (/') or acknowledge in the part-
nership name, after dissolution, a balance due from the ]>artner-
ship.(/i:) If a note is signed by a firm payable to tlie order of
one of its members, this person may indorse tlie note after the
dissolution of the firm so as to bind it.(/)

In Pennsylvania the courts have fully adopted the princijde,
that as to past transactions the partnership continues until they
are settled. Thus it is held that after dissolution a partner may
borrow money to pay partnership debts, (w) and may renew the
notes of the firm ; (n) or give notes in the firm name in payment
of firm debts. (o)

There are, however, other authorities, which construe the
rule that a partner cannot make a new contract after dissolu-
tion very strictly, and hold that the power of a surviving part-
ner not only does not extend to the giving of a note,(/^) or

(h) Usher v. Dauncey, 4 Camp. 97. In Lewis (-•. Reilly, 1 Q- B. 349, to an action
by an indorsee on a bill drawn by defendants A and B, as partners, payable to their
own order, and also indorsed by them, defendant B pleaded that the bill was indorsed
by A to plaintiff, in the partnership name, after a dissolution of the partnership, with-
out the privity or consent and in fraud of defendant B, and for A's private purposes ;
and that plaintiff knew of the dissolution at the time of the indorsement. /Ir/d, after
verdict for defendant, that the plea was bad for not showing that plaintiff had colluded
with A, or was privy to the fraud. Lord Denman said : " It is, perhai)s, doing no
violence to language to say that the partnership could not be dissolved as to this bill,
80 as to prevent it from being indorsed by either defendant in the name of the firm."

((■) Darling v. March, 22 Maine, 184.

(j) Milliken v. Loring, 37 Maine, 408.

(k) Ide V. Ingraham, 5 Gray, 106.

(/) Temple v. Seaver, 11 Cnsh. 314.

(ra) Estate of Davis & Desauque, .5 Whart. 530.

(n) Ibid. ; Brown v. Clark, 14 Penn. State, 469.

(o) Robinson v. Taylor, 4 Barr, 242.

[p) Lockwood V. Comstock, 4 McLean, 383 ; Bank of Port Gibson v. Baugh, 9
Smedes & M. 290 ; Hamilton v. Seaman, 1 Ind. 185 ; Perrin v. Keene, 19 Maine, 355;
Lusk V. Smith, 8 Barb. 570. In Mitchell v. Ostrom, 2 Hill, 520, the note in suit was
signed, " Late firm M., J., E., & Co.

Vol. I.— K

146 NOTES AND BILLS. [CH. V.

acceptihg of a bill, (5') in the firm name, after dissolution, for
a pre-existing debt of the firm, even though it be antedated
so as to bear date before the dissolution, (r) but also that he
cannot renew bills or notes given by the partnership before
dissolution, so as to bind lijs former copartners, (5) or indorse
notes given to the firm before dissolution, so as to vest the title
in the indorsee. (/)

Nor, it has been held, can he indorse notes belonging to the
firm at the time of the dissolution, so as either to render the
other partners liable on his indorsment, or to pass a valid title to
the notes. (w) It has even been doubted whether a note indorsed
before dissolution, but negotiated afterwards, will bind the
firm ; (v) but if negotiated in good faith for the purposes for
which it was indorsed, we are inclined to think it would, al-
though the contrary doctrine has been held.(i^.')

One partner, after dissolution, may, of course, bind his copart-
ner by any of the above acts, if he have an express authority for
that purpose. And such authority may be given by parol, al-
though the terms upon which the partnership was dissolved should
be in writing. Thus, where a retired partner stated that he left
the assets and securities of the firm in the hands of tlie continuing
partner, for the purpose of winding up the concern, and that he
had no objection to his using the partnership name, it was held
that the jury were justified in finding that the continuing partner
had authority to indorse promissory notes so left in his hands, in

(9) Tombeckbcc Bank v. Duincll, 5 Mason, 56.

(r) Wri-rhtson i;. PuUan, 1 Stark. 375 ; Lansing v. Gaine, 2 Johns. 300.

(s) Palmer i'. Dodge, 4 Oliio State, 21 ; National Bank r. Norton, I Hill, 572 ; Par-
ker V. Cousins, 2 Grat. 372; Martin v. Kirk, 2 Humph. 529; Longr. Story, 10 Misso.
636 ; Stone v. Chamberlin, 20 Ga. 259. In Bank of South Carolina v. Humphreys, 1
McCord, 388, the firm, during the continuance of the partnership, had written a letter
to the holder of a note against them, requesting permission to renew it, until the e,\j)ira-
tion of a certain time, during which time a renewal was given by one partner, but sulv
sequent to the dissolution. Ilelil, that the firm was not bouniL

(/) Sanford v. Mickles, 4 Johns. 224. See also Geortner f. Trustees, &.O., 2 Barb.
«25.

(«) Abel V. Sutton, 3 Esp. 108 ; Sanford v. Mickles, 4 Johns. 224 ; Parker v. Ma-
comber, 18 Pick. 505; Humphries i-. Chastain, 5 Ga. 166.

{v) Per Lord Kinijon in Abel i\ Sutton, supra.

(w) In Glasscock v. Smith, 25 Ala. 474. The question was raised, but not decided,
in Mechanics' Bank v. Hildrcth, 9 Cush. 359.

CH. v.] PARTNERS. 147

the partnership name. (2;) So an authority hy parol to continu-
ing partners to sell a negotiable note made to the firm before dis-
solution, will authorize an indorsement of such note, "without
recourse," in the name of the firm.(//) It seems however, to be
well settled, that an autliority given to one partner " to close all
business transactions of the late firm";(c) -'to settle up the busi-
ness of the firm; "(«) " to settle all demands in favor of or against
the firm" ;{b) "to settle business of tlie firm, and for that pur-
pose to use their name " ; (c) " to settle business of the firm and
sign its name for that purpose" ; (iZ) "to use the name of the
firm in liquidation, only, of past business " ; (e) confers no more
power than the partner would have by the general principles of
the law of partnership. In one case, however, the court were
of the opinion that the authority given to use the partnership
name conferred a greater power than would have otherwise ex-
isted, and hold that it was for the jury to find, from the course
of trade, and the usage and custom of merchants, as well as
from the notice itself, whether this power extended to the re-
newal of a note which had been discounted at a bank previous
to the dissolution. (/) And if a partner, under such an au-
thority, receives a note, in payment of a debt due to the firm,
payable to bearer, it seems that the legal title to such note will
vest in such partner alone ; and, therefore, he will be able to give
a good title to it by delivery. (g-)

(x) Smith V. Winter, 4 M. & W. 454. In Burton v. Issitt, 5 B. & Aid. 267, by a
deed of dissolution of partnership, a power was reserved to the remaining partners to
use the name of the retiring partner in the prosecution of all suits. In an action in
which judgment had been obtained by all the partners before the dissolution, it was held,
that the remaining partners had authority under that power to give to the defendant a
note for the payment of the sixpences, under the Lords' Act, on behalf of themselves
and the retiring partner.

(y) Yale ;;. Eames, 1 Met. 486.

(2) Palmer v. Dodge, 4 Oiiio State, 21.

(a) Parker v. Cousins, 2 Grat. 372; Long v. Story, 10 Misso. 636 ; Martin v. "Wal-
ton, 1 McCord, 16; Parker v. Macomber, 18 Pick. 505.

(6) Lockwood v. Comstock, 4 McLean, 383.

(d) Hamilton v. Seaman, 1 Ind. 185.

(e) Martin v. Ivirk, 2 Humph. 529.
(/) Myers v. Huggins, 1 Strob. 473.

(g) In Parker v. Macomber, 18 Pick. 505, where the individual note of a partner,
nadc after the dissolution of the partnership, was transferred by the holder to the firm,

14S NOTES AND BILLS. [CH. V.

As to any persons who have not been properly notified of the
dissolution, the partners will be bound by the acts of a copartner,
the same as before dissolution. (/t) But in one case it was held
that an attorney who knew that a dissolution was intended and
agreed on, but did not know that it had taken place, as was in
fact the case, could not hold the firm on an acceptance made by
a partner in the name of the firm after the dissolution. (i)

Ratification and confirmation will have the same effect after a
dissolution, as if the partners who adopt the signature and con-
firm it were still partners, (j)

by an indorsement in blank, in pajTnent of a debt, it was held, that such note, being
parable to bearer, might be legally transferred to a third person by another partner, who
was authorized to settle the concerns of the partnership. Shaw, C. J. said : " It is
contended that, by this indorsement, deliveiy, and payment, the property in the note
vested in all tlie members of the late firm, and though it was under a bhink indorse-
ment, it could not be jjasscd by delivery, so as to vest a valid title in the holder, with-
out the act of all the pai-tners. But we are of opinion that this defence cannot be
maintained. Being under a blank indorsement and passing by delivery, the title vested
in any person or persons legally becoming tiie holders for value. Now we think the
autliority given to the two partners, the Howlands, to collect the debts and settle the
affairs of the late firm, gave them authority to receive negotiable notes and drafts, as a
means of obtaining payments. If so, they must be deemed to have received this note,
as agents to settle ; they received it in their own right, and the properly vested in them.
This being the case, as they would take merchandise, bank-stock, or otiicr articles
affording the means of raising money and getting in the debts, they had a right to dis-
pose of the property for the same jjurpose ; and it being a mercantile agency, each had
the requisite authority. As they took the note under a blank indorsement, and it was
in a condition to pass by a mere delivery, no indorsement of the firm was necessary ;
and the want of authority, arising from a want of legal power to make such indorse-
ment, applicable to the case of the other note, does not apply to this. If it be said that
they, being agents, took this note for the use and benefit of all the members of the late
firm, and so the title vested in them, wo think it is necessary to distinguisli between tho
legal and the beneficial interest. Undoubtedly the beneficial interest was in the mem-
bers of the late firm ; and the agents were bound to render an account of the property
and apply the proceeds to their benefit. But this is quite consistent with their taking
a legal interest themselves in tiie security, in the same manner as if tliey had taken
goods, bank-notes, or other property, to be turned into money and accounted for, pur-
suant to the trust and autliority reposed in tlicm for that purpose."

(A) Whitman v. Leonard, 3 Pit-k. 177 ; Tombeckbec Bank v. Dumell, .') Mason, 56;
Lansing v. Gaine, 2 Johns. 300 ; Bristol v. Sprague, 8 Wend. 423.

(i) Paterson v. Zachariali, 1 Stark. 71.

{_;■) Waitc v. Foster, 33 Maine, 424; Leonard v. Wildes, 36 Maine, 26.5; Lusk
V. Smith, 8 Barb. 570; Chase i;. Kendall, 6 Ind. 304; Eaton v. Taylor, 10 Masa
M.

en. v.] LUNATICS. 149

SECTION YI.

OF LUNATICS.

If these are under guardianslup, thej come under the statu-
tory disability. (A') If not, their natural disability applies. But
to such a case, somewhat of the same principle which governs as
to the incapacity of infants also applies. If this natural inca-
pacity is not in fact perfect, and if an insane or an imbecile per-
son, while temporarily, or apparently, sane enough to transact
ordinary business, gives his note for necessaries, and it is received
in good faith, it would seem to be proper, for the sake of the lu-
natic himself, that the note should be valid. Or if the note were
set aside, because it fixed a certain price or amount whicii ouglit
to be left open to inquiry, still his liability on the contract should
be established, and the note might be evidence, of more or less
value, of the quantum which should be paid.(Z)

It is undoubtedly now true, that a man may " stultify him-
self," or prove in defence against a claim on any contract his
insanity, or imbecility, or aberration, or defect of understanding
from any cause, existing at the time the contract was made.(w)
The general reason for this is, that there can be no contract un-
less there be a meeting of minds ; and there can be no meeting
of minds if the one party has no mind which can meet the mind
of the other. Possibly this defence, to be effectual, must go far
enough to show that this defect of mind was known to the other
contracting party, or was unknown to him by reason of his own
fault and negligence. It has been so held in cases of executed

{k) Leonard v. Leonard, 14 Pick. 280.

(/) See Gore v. Gibson, 13 M. & W. 623. In Bagster v. Earl of Portsmouth, 7
DowL & II. 614, 2 C. & P. 178, it was held, that a hinatic is capable of contracting for
necessaries. Therefore, where a person of rank ordered carriages suitable to his con-
dition, and tlie coachmaker supplied them bona Jide and without fraud, and thev were
actually used by the party : h(4d, that an action would lie upon the contract, notwith-
standing an inquisition of lunacy finding the party to be of unsound mind at the time
the carriages were ordered. La Kue v. Gilkyson, 4 Penn. State, 375, is to the same
effect. Anr" see Richardson i'. Strong, 13 Ired. 106.

(m) Mitchell v ffingman, 5 Pick. 431 ; Gore v. Gibson, 13 M. & W. 623 ; Alcock
o. Alcock, 3 Man. & G. 268. See contra, Bvovm v. Jodrell, 3 C. & P. 30.
13 *

150 NOTES A^T) BILLS. [CH. V.

contracts. (m) But it may, we think, be well doubted whether
any instrument or contract could be enforced in law, if one
of the parties was distinctly non compos mentis wlien it was
made.(o) It has been said that the note of one known to
the payee to be insane .is absolutely void, even in the hands
of an innocent indorsee ; [p) but such indorsee must cer-
tainly have his remedy against the indorser, either on the note
or independently.

Sanity is to be presumed ; the burden of proof being on him
who denies it.{q) But to defeat a promissory note, it is only
necessary to prove a condition of mind which makes self-protec-
tion against imposition impossible. (r)

An inquisition of lunacy is conclusive against those who are
parties to it. But it is said that it may be rebutted by clear evi-

()() Thus, in Bro\VTi v. Jodrell, 3 C & P. 30, Moody & M. 105, which was an action
for work and labor, and goods sold and delivered, it was held to be no defence, tliat the
defendant was of unsound mind, unless the plaintiff knew of, or in some way took
advantage of his incapacity, in order to impose on him. So in Beals v- See, 10 Penn.
State, 56, it was held, that an executed contract by a merchant for the purchase of goods
cannot be avoided by proof of insanity at the time of the purchase, unless there has
been a fraud committed on him by the vendor, or he has knowledge of his condition.
And in Molton v. Camroux, 4 Exch. 17, it was held, that unsoundness of mind will
not vacate a contract, if it be unknown to the other contracting party, and no advan-
tage be taken of the lunatic, especially where the contract is executed in whole or in
part, so tiiat the parties cannot be restored to their original position. Therefore, where
a lunatic purchased certain aniuiities for his life, of a society which at the time Iiad no
knowledge of his unsoundness of mind, tiie transaction being in the ordinary course of
human affairs, and fair and bona Jide on tiie part of the society, it was held, in tlie Ex-
chequer Chamber, (affirming the judgment of the Court of Exchequer,) that, after the
death of the liuuxtic, his persomil representatives could not recover back the premiums
paid for the annuities.

(o) In Heaver v. Phelps, 1 1 Pick. 304, in trover for a promissory note, ])ledged totho
defendant by the plaintiff wlien the latter was insane, it was htld not to be a legal de-
fence that tlie defendant, at the time when he took the pledge, was not apjirised of the
jilaintiff 's being insane, and had no reason to suspect it, and did not ovcrreacii him nor
))ractise any fraud or unfairness. And Wilde, J. said : " The defendant's counsel rely
principally on a distinction between contracts executed, and those which arc executory.
But if this distinction were material, wc do not perceive how it is made to appear that
the contract of bailment is an executed contract, for if the note was pledged to secure
the jierfonnancc of an executory contract, and was part of the same transaction, it
would ratlier be considered an executory contract. But wc do not consider the distinc-
tion at ail material. It i.s well settled that the conveyances of a non compoa a"c roid-
able, and may be avoided by the writ dam fail uon compos vicntis, or by entry."

{/i) Sentance i: Poole, 3 C. & P. 1.

(7) Jackson v. Van Dusen, 5 Johns. I ■14 ; Jackson v. King, 4 Cowen, 207.

Ir] Jithnson u. Ciiadwell, 8 Ilurnpli. 145

CH. v.] ALIENS. 151

deuce of sanity, by other parties. (*') Before office found, the
acts of a lunatic are said to be voidable only ; (t) afterwards,
void.(«) But we should have some doubt whether this distinc-
tion would be enforced so far as to say that the contract of a lu-
natic could not be ratified and confirmed by him after his sanity
was restored.

It is quite well settled that the maker of a promissory note,
sued by an indorsee, will be allowed to plead that the indorser
was a lunatic at the time of the indorsement. (v)

Drunkenness is a species of insanity ; but the law is not quite
clear respecting this disability. Perhaps it stands thus : One
cannot defend by proving his drunkenness, unless ho can show
that the drunkenness was known to the payee and taken advan-
tage of by him ; or that it was complete, and suspended all use
of the mind at the time.{iv) It might be doubted, however,
whether such absolute drunkenness as this would be compatible
with the physical ability of writing one's name. At all events,
it must be law that no one can avail himself of drunkenness pur-
posely caused by himself, with the intention of rendering con-
tracts void which he should enter into in that state.

SECTION VII.

ALIENS.

There is nothing to prevent an alien, merely as such, from
becoming a party to a promissory note or bill, and nothing

(s) Den V. Clark, 5 Halst. 217; Kot^ers v. Walker, 6 Penn. State, 371. But see,
contia, Leonard v Leonard, 14 Pick 280; WadswortU v. Sharpsteen, 4 Scld. 388.

(t) Jackson r. Gumaer, 2 Cowcii, .5.52.

(w) Pearl v. M'Dowell, 3 .7. J. Marsh. 658.

(f) Alcock V. Alcock, 3 Man. & G. 268 ; Peaslee v. Robbins, 3 Met. 164 ; Burke v.
Allen, 9 Post. 106.

(w) In Pitt V. Smith, 3 Camp. 33, it was held, that an agreement signed by a person
in a state of complete intoxication was void. In Gore v. Gibson, 13 M. & W. 623, to
an action by indorsee against indorser of a bill of exchange, the defendant ])leaded,
that wlien he indorsed the bill he was so intoxicated, and thereby so entirely deprived
.)f sense, understanding, and the nse of his reason, as to be unable to comprehend
the meaning, nature, or effect of the indorsement, or to contract thereby ; of which the
plaintiff, at the time of the indorsement, had notice. Held to be a good answer to the
action. And see Jenners v. Howard, 6 Blackf. 240 ; Berkley v. Cannon, 4 Rich. 136

1-32 NOTES AND BILLS. [CH. V

111 his alienage to affect his rights or obligations. If, however,
he is an alien enemy, no contract entered into with him can be
enforced in the courts of this country. He has no standing
there to maintain his rights : and a citizen who enters into a
contract with an enemy would be regarded as violating the
law, and could not have its aid in carrying the contract into
effect, (x-)

This has been carried so far in England, that a bill drawn
by an alien enemy on an English subject, then in England,
and indorsed to an English subject abroad, was not permitted
to be enforced In the English courts even after the restoration
of peace. (//) The same principle would avoid all contracts for
tiic purpose of remitting funds to an enemy's country, by bill
or otherwise. (2:) The only exceptions to this rule would seem
to be in the case of bills or notes for ransom of proi)erty or
persons ; (a) or for obtaining necessaries while a prisoner ; (b)
or for purposes connected with a voyage by cartel or license,
in which cases there seems to be a kind of partial peace, or
at least a suspension of the incidents of war.(6*) Nor does it
seem to be a sufficient objection to an action on a bill so
protected, that it is brought, in part, in trust for an alien en-
emy.{(/)

(.r) Griswold v. Waddington, 16 Johns. 438.

{y) Willison i.\ Pattcson, 7 Taunt. 439.

(z) Griswold v. Waddin<,non, 16 Johns. 438 ; Hoare v. Allen, 2 Dallas, 102. But in
United States v. Barker, 1 Paine, 156, it was held, that a citizen of the United States
inii^ht lawfully, during a war with a foreijrn country, draw a bill on one of its subjects ;
such an act not leading to any injunous intercourse, nor amounting to a trading with
the enemy.

((() Kicord r. Bettenham, 3 Burr. 1734; Cornu v. Blackburne, 2 Doug. 641 ; An-
thon V. Fisher, 2 Doug. 649, note ; 3 id. 166.

(/;) Aiitoine v. Morshcad, 6 Taunt. 237. But see Duliammcl v. Pickering, 2 Stark.
90.

{/■) Thus, in Suckley i;. Furse, 1.5 Johns. 338, wlicrc a bill of exchange was drawn
in this country, upon a person in Great Britain, during the late war with that country,
f<»r supplies furnished by the payee to a British vessel authorized by act of Congress to
sail from this country to an enemy's port, which was sold by the payee to the plaintiff,
who remitted it to Great Britain for collection ; it was Iwld, that the remittance of
the bill WM'j within the protection afforded to the original transaction, and was not
illegal.

[d) Daubuz v. Morshcad, 6 Taunt. 332.

CH. v.] BANKRUPTS. 153

SECTION VIII.

BANKUm^TS.

We have, in this country, no general bankrupt law ; and
the insolvent laws of the several States usually provide for
most of the questions which can occur in relation to negotia-
ble pa[)er. In general, however, it may be said that all the
property, chattels, or choses in action, and all the interest in
any property belonging to the bankrupt, passes to his assignees.
He has, therefore, no property left, and no power of disposition
or control. He cannot sue, or indorse, (e) or assign. In respect
to a bill or note received by a bankrupt after his bankruptcy,
it is iield, in England, that it does not vest absolutely in the
assignees, although they have a right to claim it; bnt, in the
absence of any claim by them, the title of the bankrupt is good
as against all other p3rsons.(/") And if the property in the

(e) In Ashurst v. Royal Bank of Australia, Q. B. 185G, 37 En<:. L & Va\. 19'>, it was
held that a bankrupt could convey no title to a note by inilorsini; it after maturity, but
it was said that he could before. Sec also Smith e. De Wilts, 6 Dowi. & K. 120.

{/) Kitchen v. Bartsch, 7 East, S3. In this case it was held to be a good plea to an
action on a promissory note, and for money lent, that the plaintiff was an uncertificated
bankrupt, and that his assignees required the defendant to pa_v to them the money
claimed by the plaintiff; and it is not a good replication that the causes of action ac-
crued after the plaintiff l)ecame bankrupt, and that the defendant treated with the plain-
tiff as a person capable of receiving credit in those behalves, and that the commissioners
had made no new assignment of the said notes and money ; for the general assignment
of the commissioners passes to the assignees of the bankrupt all liis after acquired as
well as present personal property and debts. In Drayton v. Dale, 2 B & C. 293, which
was assumi)sit by the indorsee against the maker of a promissory note payable to A or
his order, the defendant pleaded that A became bankrupt, and that his property was
duly assigned to assignees, whereby the interest, title, and right to indorse the promis-
sory note before the lime of indorsement became vested iu the assignees, wherein' the
indorsement by A wai void, and created no rights in the plaintiffs to sue. Repli-
cation, that the indorsement was made witii the consent of the assignees. Rejoinder
taking issue upon that fact. A verdict having been found for the defendant on tliis
issue, it was held, that the plaintiff was entitled to judgment, non obstante veredicto.
First, liecause the defendant, who had made the note payable to A or his order, was
estopped from saying that A was not competent to make an order. Secondly, because
the property acquired by a bankrupt subsequently to his bankruptcy does not abso-
lutely vest in the assignees, although they have a right to claim it ; but if they
do not make any claim, the bankrupt has a right to such property against all other
persons.

154 NOTES AND BILLS. [CH. V

bill had already passed from the bankrupt before liis bankrupt-
cy, or was so intended, and indorsement ought to be made, the
bankrupt may indorse it, or the assignees may be compelled to
indorse, (o")

SECTION IX.

OF EXECUTORS AND ADMINISTRATORS.

In general tliey have all the rights and remedies of the
deceased, although not named in the contracts or instruments
from which these rights arise ; and lie under all the obligations
of the deceased, so far as his assets suffice. All, however, with
the important exception of those contracts, whether express or
implied, which are so entirely personal to the deceased, that
no one can fill his place or become his substitute ; so that all
the rights and obligations arising under such contracts of course
die with him.

If a negotiable note is indorsed, or if a non-negotiable note is
assigned for value, to a dead man, whoso death is not known,
it becomes the property of his executor or administrator, in
the same manner as if he had died after the transfer. (/*) And
this would probably be the case, if this transfer were made in
good faith with a knowledge of the death ; as it could be made
with no other intention than to place the note among his as-
sets.

Only the executors or administrators, and not the heirs or
next of kin of ])ersons deceased, can claim possession of his
bills and notes, or demand payment, or put them in suit.(i)
In suing u[)on them, they must set out distinctly the facts
which constitute their rei)rcsentative character, because this
is a part of their title. It has been held not sufficient to
describe themselves as executors, nor even to aver that they
were duly appfjintcd ; but they are required to set out tiie pro-
ceedings, so that the court may see that the appointment was
legal. (»

((/) Smiili V. Pi(kcrin<,', Peakc, 50 ; Ex ptirtc Mowbray, 1 Jac. & W. 428.
(/<) Murray v. East India Co., r, IJ. & Aid. 204.
(i) Morse V. Clayton, 1.3 Smcdcs & M. 373.
ij) Beach V. King, 17 Wend. 197.

CII. v.] EXECUTORS AND ADMINISTRATORS. 155

It is otherwise, if they receive a note payable to themselves,
though for a debt due to the estate, and though payable to
them as executors. For in such case their representative char-
acter constitutes no part of their title. The note never be-
longed to their testator, but vested in them originally. And
if a bill or note, belonging to the testator at the time of his
decease, is payable to bearer, they need not in suing upon it
malce title through liim ; they may sue as bearers simply. The
same distinction is applicable to guardians, receivers, assignees
in bankruptcy, and trustees of every description. (^')

It has been a vexed question, whether a note payable to
"A, as executor,'" and given for a debt due to the estate, will
be regarded as assets. It was once held that it would not ;
and therefore that a count upon such a note could not be
joined with counts upon promises made to the testator in
his lifetime. (/) But this doctrine has since been overruled ;
and it is now well settled tliat such a note will be assets, at
least at the election of the executor. (m) Therefore, if he de-
clares upon it as a note payable to him as executor, and lays
the promise as made to him in his representative capacity,
he may join counts upon promises to his testator in his life-
time, (li)

(k) Gillet V. Frtirchild, 4 Dcnio, 80 ; White v. Joy, 3 Kern. 83.

(/) Betts V. Mitchell, 10 Mod. 316. And see, per Chambre, J., in Hosier v. Arundell,

3 B. &r. 11.

{m) See Henshall v. Roberts, 5 East, 150; Hemphill v. Hamilton, 6 Eng. 425;
Baker v. Baker, 4 Bibb, 346.

(n) King v. Thorn, 1 T. R. 487. In Partridge v. Court, 5 Price, 412, affirmed on
error in 7 l^rice, 591, it was held, that counts on promises made to an intestate may bo
joined in a declaration by an administrator, in an action of assumpsit on such promises,
with counts on promissory notes given to the administrator since the death of the intes-
tate as administrator, because the amount when recovered will be assets in the hands
of the administrator. Graham, B. said: "Wherever the money when recovered shall
be assets, counts in each character may be joined ; and that is a fair and sound criterion,
and one which is sufficient to prevent all ambiguity and doubt ; it ought, therefore, to
be adopted as a never-failing rule. Then we should look to this record with a view to
see whether the money which is sought to be recovered would be assets in the hands of
the administratrix, and in my opinion the judgment for the plaintiif would be conclu-
sive, if produced, to show that assets had come to her hands, and might be used for that
purpose." Wood, B. : " The objection to tliis declaration is, that it contains several
:oun:s which are distinct, and cannot be joined, some lieing framed on demands in the
plaintifTs representative character, and others on demands which should be asserted by
hi'r personally, and no doubt if that were so, the declaration would be bad ; but I am
of opinion that all these counts are on demands arising to her in her representative

156 NOIES AND BILLS. [CH. V.

Upon the same principle, if an administrator, who has re-
ceived such a note, dies before it is paid, it goes properly with
the other assets into the hands of the administrator de bonis non,
and he may sue upon it, and demand and receive payment. (o)

character, and not in person. The true criterion of that is certainly what has been
ah'eady stated, that where the money, if recovered, would be assets, the causes of action
may be joined, and in this case I take it that the money, when recovered, may be clearly

80 considered The note is given to the administratrix, as administratrix, and

that is not merely, as has been argued, a description of the person, it is a description of
character, and of the character in which Ihe debt is to be paid to her." See Henshall
V. Roberts, 5 East, 1.50 ; per Parke, B., in F»ath v. Chilton, 12 M. & W. G.37 ; per N'lson,
C. J., in Bogert v. Hertell, 4 Hill, .503, tt seq. In 1 Williams on Executors, 4th ed., 751,
after stating the cases, it is said : " The principle on which these cases were decided has
not been settled without conflict. Several old cases may be found, in which it was con-
sidered that the contracts made with an executor or administrator were personal to him,
and that he must sue for them in his own right, and not in his re])resentative capacity ;
and particularly in the instance of negotiable instruments, it was conceived, until very
modern times, that if an executor took a bill or note from a debtor to the estate of his
testator, a new debt was thereby created, which must be declared on as such. How-
ever, the rule may now be regarded as firmly established by the more recent cases, that
wherever the money recovered will be assets, the executor may sue for it and declare
in his representative character." And see Sheets v. Pabody, 6 Biackf 120. But see
TurnbuU v. Freret, 17 Mart. La. 703; Oilman v. Horseley, 17 Mart. La. 661 ; Urqn-
hart V. Taylor, .5 Mart. La. 200 ; Clampitt v. Newport, 8 La. Ann. 124.

(o) Thus, in Catherwood r. Chabaud, 1 B. & C. 1.50, where a hill of exchange was
indorsed generally, but delivered to S. C, as administratrix of J. C, for a debt due to
the intestate, and S. C. died intestate after the bill became due, and before it was paid,
it was laid, that the administrators de bonis von of J. C. might sue upon the bill.
Abbott, C. J. said : " It was dearly established by the evidence that tlic bill in question
was given to S. C, as the administratrix of J. C, for money due to her intestate ; she
took it as assets, and if she had received the money, that must undoulitcdly have been
accounted for to his estate. The money not having been received in her lifetime, the
bill remained as a part of J. C.'s estate, and the right to it devolved upon the persons who
afterwards became his representatives. This case differs widely from Barker v. Talcot,
1 Vern. 473, for there the debtor had actually paid the executor of the administrator;
now such a payment would, in etpiity, and might, i)erhai)s, in law also, be a sufficient
answer to any action afterwards brought to enforce payment of the same debt over
again. Here no payment has been made by the debtor, who therefore cannot he dam-
nified by this action. It has been decided in a variety of modern cases, that an admin-
istrator may sue as such u[)on a promise made to him in his representative character;
and that j)rinciplc governs my opinion upon the present case ; for where the cause of
action is such that the first administrator may sue in his representative character, the
right of action devolves upon the ailministrator de. bonis voii of the intestate." Baj/ley,
J. : " It was decided in the case of King v. Thorn, 1 T. B. 487, that if a hill be indorsed
to A and B as executors, they may declare as such in an action against the acceptor.
In Cowell i: Watts, 6 East, 40.5, it was luld, that an administrator may sue in his rep-
resentative character upon promises made to himself, where the money will be assets
when recovered. Now, if tlic administrator dies intestate, without having sued upon
«uch a promise, the administrator de bonis non may sustain an action upon it ; for he

CH. v.] EXECUTORS AND ADMIXISTRATORS. 157

But payment to the administrator of the deceased has been held,
ill the English Court of Ciiancery, to discharge the payer; (/?)
and in a recent case this decision is so commented upon as to im-
ply that tlie payment might be held good at hi\v.{q) It is also
intimated, in the same case, that there may be cases where the
representative of the administrator might and ought to sue ; as
if the administrator had made himself debtor to the intestate's
estate for the amount of the note.(/')

An executor or administrator may indorse a negotial)le note
of the deceased ; and his assignment of a non-negotiable in-
strument passes the property to the assignee. (s) But such

succeeds to all the legal rights which belonged to the administrator in his representative
capacity. Here, S. C, the administratrix of J. C, might have sued as such upon the
bill in question. This action was, therefore, properly brought by the admuiistrators de
bonis non. By this mode of proceeding, the money recovered is immediately apjjlicable
to the right fund, as assets of the first intestate ; whereas, if the action had been brought
by the personal representative of the administratrix of J. C, it would, in the first in-
stance, have become a part of her estate, and must afterwai'ds have been transferred
from that to the estate of J. C, the first intestate." Holroyd, J. : "I am of the same
opinion. The decisions in the old cases proceeded upon the principle that contracts
made with an administrator were personal to him, and that he must sue upon them in
his own right, and not in his representative capacity. That principle has since been
altered, and it has been ruled in several modern cases, that upon such contracts an
administrator may sue in his representative character. The older cases have, therefore,
received a qualification, and are not now to be considered as law to their full extent."
Best, J. : " In refusing this rule it is not necessary to decide that the administrator of
the administratrix S. C. could not have sued ; it is sufficient to say, that the adminis-
ti'ator de bonis non might sue ; and this observation may serve to reconcile the various
cases which have been referred to. An action by the administrator de bonis non was
certainly the most proper, tliat being the shortest and most convenient mode of bring-
ing the money recovered into the funds of the original intestate." Abbott, C. J. :
" There is much weight in the distinction which has been taken by my brother Best.
There may be cases where the administrator of an administrator might and ought to
sue, namely, if the first administrator had made himself debtor to the intestate's estate
for the amount of a bill received in payment of a debt due to that estate." And see
Sheets v. Pabody, 6 Blackf. 120.

(p) Barker i'. Talcot, 1 Vcrn. 473.

(q) Cathenvood v. Chabaud, 1 B. & C. 1.50.

(r) Catherwood v. Chabaud, supra. In Ri.x v. Nevins, 26 Vt. .384, the plaintiff, as
administrator of the estate of R., commenced a suit upon certain notes which R., in
his lifetime, had taken of the defendant as administrator of the estate of L. (of wliich
estate the plaintiff was also administrator de bonis non), and obtained judgment against
the defendant on the same. Held, that the plaintiff, having thus treated the claim
against the defendant as assets, and as the projjerty of the estate of R , the same was
jubjeet to every legal and equitable set-off which the defendant had against R. or his
estate.

(s) Rawlinson v. Stone, 3 Wilson, 1. This was an action upon a promissory note,

VCL. 1. 14

158 NOTES AND BILLS. [CH. V.

assignment for the private debt of the executor or administrator
is a fraud on the estate of the deceased, and passes no property
to an assignee who has notice or knowledge, even if he paid
value. (^)

If there be several executors or administrators, the bills and
notes of the deceased may be indorsed by either one of them.
For they are esteemed in law but as one person ; and the acts of
one of them relathig to the sale and transfer of the testator's
effects are the acts of all.(ii) Whether the same rule will apply
to notes taken by them for debts due to the estate, has been con-

payable to A or order, and indorsed by the administratrix of A. It was objected that the
indorsement was not valid so as to give the indorsee an action in his own name. But the
objection was overruled, "because," the reporter adds, "it is well known to be the con-
stant practice and usage among merchants for executors and administrators to indorse
and negotiate both promissory notes and bills of exchange ; and the courts of justice
will always endeavor to adapt the rules of law to the usage and course of trade, ad ea
qua frequent ins acdd ant jura ndaptantur ; and the courts of law are warranted in this by
the words of the statute of Anne, which says, that promissory notes payable to any
person or persons, his, her, or their order, shall be assignable or indorsable over in the
same manner as inland bills of exchange arc or may be, according to the custom of
merchants. The ecfuitablc interest in the note is converted into a legal interest, and
the whole interest is vested in the administrator, who, before the statute, might liave
assigned his equitable interest, and since the statute, may now assign his legal interest."
Mr. Justice Denison further said : '' That if it had appeared to the court u])on a special
verdict that there was no such custom among merchants as for administrators to indorse
or a'^sign bills of exchange, it would have been a very different case from the present ;
but that no such tiling appeared, and in truth, that the custom is for administrators to
indorse and assign bills ; that he previously had some notice of this case coming before
the court, and therefore had inquired touching the usage among merciiants, and been
well informed that it was the constant usage amongst thorn fur administrators to indorse
and assign over bills of exchange made p.ayable to their intestates or order." Sec also,
Watkins v. Maule. 2 Jac. & W. 2.37, 243 ; S/mw, C. J., in Kand v. Hubbard, 4 Met.
2.52, 2.58; Owen v. Moody, 29 Missis. 82; Makepeace v. Moore, 5 Oilman, 474.

(/) Makepe.ice v. Moore, 5 Oilman. 474 ; Miller v. Helm, 2 Smcdes & M. 687 ; Scott
V. Scarlcs, 7 Smcdes & M. 498 ; Miller v. Williamson, 5 Md. 219.

((/) Dwight V. NcwcU, I. 5 111. 33.3; Mosely v. Oraydon, 4 Strob. 7; Wheeler v.
AVheeler, 9 Cowen, 34. In Shep. Touch. 484, it is said : " All the executors, where
there be more than one, be they never so many in the eye of the law, are but as one
man ; in which respect the law doth esteem most acts done by or to any one of them,
as acts done l)y or to all of them. And, therefore, the possession of one of tiiem of
the goods and chattels of the deceased is esteemed the jiossession of them all ; pay-
ment of di'bts by or to one of them is esteemed payment by or to them all ; ihe sale or
gift of one of them of the goods and ciuittels of the deceased, the sale and gift of them
all ; a release made by or to one of them is a release made by or to them all ; and the
assent of one of them to a legacy, the as.sent of them all. And, therefore, if there be
two executors, and one of them deliver up the obligation to the debtor whereby he is
bound, the other executor shall not recover it in a detinue."

CH. v.] EXECUTORS AND ADMINISTPwATORS. 159

sidered doubtful. (i') It would scorn to depend u})on the question
already noticed, namely, whether such notes arc to Ijc considered
as assets. And it being now settled that they are, it seems tliat
they may be indorsed as eiTfcctually by one executor as by a\\.{iv)
A delivery without indorsement by an executor or adminis-
trator does not pass the legal title, except in the case of paper
transferable by delivery. And if the deceased indorsed the note
in his lifetime, but did not deliver it, it has been held that a de-
livery by tlic executor will not complete the transfer. An in-
dorsement without delivery will no more transfer the legal title,
than delivery without indorsement. In the case supposed, there-
fore, the legal title to the note would remain in the payee at the
time of his death, and would then pass to his executor, as in the
case of other personal estate ; and that title could be transferred
only by the indorsement and delivery of the executor, because
there is no other legal mode by which a transfer of a bill or note
payable to order can be made. (2;)

(v) In Smith v. Whiting', 9 Mass. 334, it was held, that one of two executors could
not assijjn a negotiable promissory note, made to them as executors, for a debt due to
their testator. The court said : " Tlie question is, whether one of two executors is
competent to transfer by indorsement a negotiable promissory note made to the two in
their character of executors. The promisees, not being copartners, had each but a
moiety. One, therefore, could not assign the whole. Nor was it competent for him to
assign his moiety." And see Sanders v. Blain, 6 J. J. ]\Iarsh. 446 ; Eegina v. Winter-
bottom, 2 Car. & K. 37, 1 Den. C. C. 41 ; Byles on Bills, p. 40, note;?, p. 44, note u.

(lo) Bogert v. Hertell, 4 Hill, 492.

(x) Thus, in Bromage v. Lloyd, 1 Exch. 32, H. indorsed a promissory note, but did
not deliver it. After the death of H., his executrix delivered the note to the plaintiff.
Held, that the plaintiff had no title to sue on the note. Pollock, C. B. said : " This is
an action on a promissory note, upon which a party has written his name, and after his
death his executrix delivers the note to the plaintitl's without indorsing it ; so that there
is a writing of his name by the deceased, and a delivery by his executrix. Those acts
will not constitute an indorsement of the note; the person to whom it is so delivered
has no right to sue upon it." Alderson, B. : " The promissory note was made payable
to the testator 'or order'; that means order in writing. The testator has written his
name upon the note, but has given no order ; the executrix has given an order, but not
in writing. The two acts being bad, do not constitute one good act." Rolfe, B. : " The
word ' transfer ' means indorsement and delivery." So in Clark v. Sigourney, 17 Conn.
511, A gave his note to B, pay.able to B or order on a certain future day. This note B
retained in his hands, doing nothing else with or in relation to it, until iiis death, which
was long after it fell due. It afterwards came into the hands of C, the widow and
executrix of B, with the name of B written in blank by him on the back of it; and C
delivered it, in the state in which she found it, to D, for a valuable consideration. In
an action brought by D, as indorsee of the note, against A, as the maker, alleging that
B, by his indorsement in writing under his hand ordered the contents thereof to be paid

IGO NOTES AND BILLS. [CH. V.

If the deceased made a valid bargain concerning a note or bill,
and indorsement and delivery are necessary to carry this into
effect, the executor or administrator not only may indorse and
deliver the note or bill, but equity will compel him to do so. A
fortiori, if the deceased delivered the note for a valuable consid-
eration, without indorsement, as he thereby created a perfect
equitable (though not a legal) title ; the holder, having an equi-
table right, may in equity compel the executor to give a formal
transfer, (yy)

In general, it is within the power and duty of executors or
administrators to present for acceptance or for payment, and give
notice of non-acceptance or non-payment, and make protest, in
the same manner and for the same causes as the deceased could
and should have done. And all presentments and demands, and
all notices, may and should be made against or given to them in
like manner as against or to the deceased. These things will be
stated more fully in the chapters on Presentment, Demand, and
Notice. There is, however, a difference between the origin and
commencement of the powers and duties of an executor, and

to D, it was held ( Williams, C. J. and Waite, J. dissenting), — 1. That as D claimed
title to the note, by an immediate indorsement of it to him by B, it was necessary for
D, in order to sustain that title, to prove such an indorsement; 2. That the word
indorsement, as applicable to negotiable paper, imports a transfer of the legal title to tho
instrument, by contract; 3. That the consummation of this contract must be .shown,
by a delivery by the party making the transfer to the party to whom it is made, and an
acceptance by tiie latter, the mere act of the payee's writing his name on the back of
the instrument not being sufficient for this purpose ; 4. That the legal title of the note
being in IJ at the time of his death, it then vested in C, his executrix, and could bo
transferred only i)y her indorsement; 5. That C, as executrix, or otherwise, had no
authority to deliver the note as a note indorsed by B ; 6. That 1), consequently, had
acquired no legal title; 7. That as the note came into D's hands after it ])ecainc duo,
it was subject to the defence of want of legal title in him. So in Clark v. Boyd, 2
Oliio, ."iG, it was Md, that an assignment indorsed upon a note, and the note retained
by the assignor until his death, vests no interest in the assignee. The court said :
" Tiie assignment made by the assignor, while the note remained in his possession,
and where no contract of sale wiis proved, was a mere nullity. It was in his own
power, and couhl at any time be legally erased. It gave no interest or title to tho
assignee, and wiicn Pierce died lie was the absolute owner of the note, notwitiistanding
the assignment. The right vested by his death in the executors, and could only bo
assigned by them. The [ilaintiffacciuired no more right i)y a delivery from the hands
of tiie executors tlian he could have acquired had tlicy delivered him a note payable
to the testator, without any indorsement." Sec also Michigan Ins. Co. v. Leaven-
worth, ."30 Vt. 11.

(y) Watkiiis V. Maule, 2 Jac. & W. 237 ; Malbon t;. Southard, 36 Maine 147.

CH. v.] EXECUTORS AKD ADMESTISTRATORS. IGl

those of an udiniiiistrator. The first begin from the ajipointnient
in the will, hotli as to source and as to time ; and, tiierefore, an
executor may do and receive these things after the death of the
testator, and l)cfore probate of the wilL But an administrator,
although the persons who have a right to tiie administration are
pointed out by the law, derives all his authority from tlie ai»p(jint-
ment as an act of the law, and therefore can do nothing until
the appointment. (c)

If there be probate of a will, the executor therein named is
fully authorized to be regarded as such, until the ])robate is an-
nulled. Hence payment to an executor under a forged will is
valid after probate, but not before. But this must be qualified
so far as to prevent a party, having knowledge of the forgery and
making the payment in fraud, from profiting by his fraud.

x\n administrator or executor can only bind himself l)y his
contracts ; he cannot bind the assets of the deceased. There-
fore, if he make, indorse, or accept negotiable paper, he will be
held personally liable, even if he adds to his own name the name
of his office, signing a note, for example, " A, as executor of
B ; for this will be deemed only a part of his description, or
will be rejected as surplusage. (a) But if he chooses to exclude
his personal liability expressly, as by the words, " I promise to
pay, &c. out of the assets of C. D., deceased, and not otherwise,"
or use any clearly equivalent language, then he is only bound so
far as the assets extend. But the instrument, in that case, will
not be a bill of exchange or promissory note, because not paya-
ble at all events. The same rule is applicable to guardians, trus-
tees, and all persons acting in a representative capacity, except
agents. (^)

At common law, an executor was considered as residuary
legatee. For this reason, and also for the technical reason that
an executor could not sue himself, if the payee and holder of a
note made the maker his executor, the note was thereby dis-

(z) Woolley v. Clark, 5 B. & Aid. 744 ; Rand v. Hubbard, 4 Met. 256 ; Allen v.
Dundas, 3 T. R. 125.

(a) Childs v. Monins, 2 Brod. & B. 460 ; King v. Thorn, 1 T. R. 489 ; Aspinall v.
Wake, 10 Bing. 55; Davis v. French, 20 Maine, 21 ; Walker v. Patterson, 36 Maine,
273.

(6) Thacher v. Dinsmore, 5 Ma.ss. 299 ; Forster v. Fuller, 6 Mass. 58. And seo
ante, pp. 36, 80, 89-91.
Vol. I.— L

162 NOTES AND BILLS. [CH V.

charged ; and if the holder of a bill appointed the acceptor his
executor, this discharged the acceptor, and therefore all subse-
quent parties. (c) The only exceptions were, that the rule did
not apply if the assets were not enough, without the bill or note,
to pay the creditors, and perhaps, for this is not clear, the lega-
tees ; or that the executor refused the appointment, (f/) For the
rule has been applied where, of several joint debtors, one was
appointed executor ; (e) and even although they were joint and
several ; and although the person appointed executor died with-
out having proved the will.(/)

This rule was never held to apply to administrators ; (g) nor
does it exist in equity in respect to executors. The debt is con-
sidered to have been paid by the executor to himself, and be-
comes assets in his hands. (A)

In this country, the action upon a note or bill by an executor
against an executor is as impossible as in England ; but a princi-
ple similar to that of the equity courts in England has always
prevailed in the probate courts of this country. That is, the
executor is charged with the amount of the debt as if paid to
him.({) An administrator must account for his debt to his intes-
tate in the same way. And it has been said that the reasons for
the discharge of the right of action apply as effectually to an
administrator as to an executor. (j)

A bequest of a bill or note to a party liable upon it discharges
his liability, of course. But a bequest to any party " of all the
property" in a house does not, it is said, carry to him any bills
or notes contained in the house ; unless they are bank-notes,
which are considered as cash. (A;) We should be inclined to
think, however, that a bequest of " property," or a bequest using

(c) Freakley v. Fox, 9 B. & C 130; Wankford v. Wankford, 1 Sulk. 299; Cheet
ham V. Ward, 1 B. & P. 630; Ncdhara's Case, 8 Rep. 135; Byles on Bills, 41,
note V.

{(I) Wankford v. Wankford, 1 Salk. 299 ; Abram i;. Cunningham, 1 Vent. 303

(f) Com. Dig. Admin. B. 5.

(/) Wankford v. Wankford, I Salk. 299 ; Cora. Dig. Admin. B. 5.

Ij) Nedham's Case, 8 Ilcp. IS.').

(A) Williams on Executors, 816 ; per Lord Tentcrden, C. J., in Freakley v. Fox, 9
B. & C. 134.

(i) Ipswich Man. Co. v. Story, 5 Met. 310.

{j) Stevens ?;. Gaylord, 1 1 Mass. 256.

{k) Bylcs on Bills, 135, note g.

CH. v.] CORPORATIONS. 163

any equivalent word, so described as to include and contain in
fact negotiable instruments, would pass them, unless something
in the will opposed this construction. If the paper was payable
to bearer, or was indorsed in blank, and in either way negotiable
by delivery, we should more confidently expect that it would go
to the legatee.

SECTION X.

OF CORPORATIONS.

At common law a corporation could bind itself only by its
seal, and its written name was apparently of no use but to verify
its seal. This rule was subject to certain exceptions, however,
at a very early period ; and in modern times, with the great
increase of mercantile and trading corporations, it has been
greatly relaxed. (/) In this country it was long since entirely
discarded. (w) In England, at the present day, a corporation
may draw or accept bills of exchange, when expressly authorized
by its charter, or when it is imperatively necessary for the
conducting of its legitimate business ; as in the case of banking
and trading corporations. (w) But according to the better opin-
ion, the power is confined to these cases. Therefore, it seems
that a corporation, created for the purpose of supplying the
inhabitants of a city with water, cannot accept a bill of exchange

(1) See Henderson v. Australian Royal Mail Steam Nav. Co., 5 Ellis & B. 409 ;
Australian Royal Mail Steam Nav. Co. v. Marzetti, 11 Exch. 228; Fishmongers' Com-
pany V. Robertson, 5 Man. & G. 131 ; Clark v. Cuckfield Union, 1 Lowndes & M. 81,
11 Eng. L. & Eq. 443 ; Copper Miners' Co. v. Fox, 16 Q. B. 229 ; Diggle v. London
& Blackwall Railway Co., 5 Exch. 442 ; Mayor of Ludlow v. Charlton, 6 M. & W. 815
Arnold v. Mayor of Poole, 4 Man. & G. 860 ; Paine v. Strand Union, 8 Q. B. 326
Lamprell v. Billericay Union, 3 Exch. 283; Sanders v. St. Neot's Union, 8 Q. B. 810
Church V. Imperial Gas Light & Coke Co., 6 A. & E. 846 ; Smart v. West Ham Union,
10 Exch. 867 ; Smith v. Cartwright, 6 Exch. 927 ; Beverley v. Lincoln Gas Light &
Coke Co., 6 A. & E. 829; Reuter v. Electric Telegraph Co., 6 Ellis & B. 341, 37
Eng. L. & Eq. 189 ; Lowe v. London & Northwestern Railway Co., 18 Q. B. 632.

'm) Bank of Columbia v. Patterson, 7 Cranch, 299. And see cases cited in 1 Par-
sons on Cont. 118, notec.

(n) The Bank of England and the East India Company are instances. See Rex v.
Big? 3 P. Wms. 419; Edie v. East India Co., 2 Burr. 1216; Murray v. East India
Co., 5 B. & Aid. 204.

1C4 NOTES AND BILLS. [CH. V.

in England. (o) In this country, however, it may be regarded
as settled, that the power of corporations to become parties to
bills of exchange or promissory notes is coextensive with their
power to contract debts. Wlienever a corporation is authorized
to contract a debt, it may draw a bill or give a note in payment
of it. Every corporation, therefore, may become a party to
bills and notes for some purposes. (/?) Thus, a mere religious
corporation may need fuel for its rooms, and as an economical
measure may buy a cargo of coal, and give its note for it ; and

(o) Broughton v. Manchester &. S. Water Works Co., 3 B. & Aid. 1 . Btiyley, J. said :
" The act of Parliament, by which this corporation is established, does not contain any
express power by which they are enabled to become parties to bills of exchange or
promissory notes, nor is there anything in the purpose for which this corporation was
established from which it is to be implied tliat such a power was meant to be given.
It seems to me that the drawing of bills of exchange was quite foreign to the purpose
for which this corporate body was established, which was for the erecting and carrying
on waterworks in a particular place. There being no power expressly given to tlicm
to make promissory notes, or to become jjarties to bills of exchange, I should doubt
very much whether such a corporation would have any power so to bind themselves for
purposes foreign to those for which they were originally established." Bist, J. .-^aid :
" I am of opinion that this action is not maintainal)Ie, because this case comes within
that rule of law by which corporations are prevented from binding themselves by con-
tract not under seal. When a company like the Bank of England, or East India Com-
pany, are incorporated for the purposes of trade, it seems to result from the very object
of their being no incorporated, that they should have power to accept bills or issue
promissor}' notes ; it would be impossible for either of these companies to go on with-
out accepting bills. In the case of Shirk v. Iligligate Archway Co., 5 Taunt. 792, the
Court of Common Pleas seemed to think, tliat unless express authority was given,
by the act establishing the company, to make promissory notes eo nomine, a corporation
could not bind itself except by deed. Now there is nothing in the act of Parliament
establishing this company, which authorizes them to bind themselves, except by deed.
The company, too, was not created for the purposes of trade, but merely to carry on
the business of supplying the inhabitants of a particular place with water. Now it can-
not ^)C necessary, for this purpose, that they sliould become the makers of promissory
notes, or the acceptors of bills of exchange. As, therefore, the nature of the business
in which they are engaged does not raise a necessary implication that tliey sliould liave
the power to accept bills, and as no authority is expressly given by the act of Parlia-
ment for that purpose, I am of opinion, on this ground, that tliis action cannot be main-
tained." The case, however, was decided on another ground. See also, East London
Water- Works Co. v. Bailey, 4 Bing. 283.

(p) Barker v. Mechanic Ins. Co., 3 Wend. 94 ; Mott v. Hicks, 1 Cowcn, ."ilS ; Plant-
ers' Bank v. Sharj), 6 How. 301, 302; Marvine v. Hymcrs, 2 Kern. 223; Bank of
Grencscc v. Patchin Bank, 3 Kern. .309 ; Moss v. Oakley, 2 Hill, 26.') ; McCnllough v.
Moss, 5 Dcnio, ^tftl ; Attorney-General v. Life and Fire In.'*. Co., 9 Paige, 4 70 ; Camo
V. Brigliam, 39 Maine, 35; Muim v. Commission Co., 15 Johns. 44 ; Ivcilcy v. Mayor
of Brooklyn, 4 Hill, 2C3 ; New York Floating Derrick Co. v. New Jersey Oil Co., 3
Duer, 648.

CH. v.] CORPORATIONS. 165

such a note would undoubtedly be valid in this country. (r/) So
also a bill or note given by a corporation will be presumed to
have been given in the course of its legitimate business, until
the contraiy appears. (r) And a note given by a corporation
will, it seems, be valid in the hands of a subsequent indorsee,
without notice, whatever may be the purpose for which it was
given ; (s) and we think it would be valid in the hands of the
payee, unless the transaction was clearly fraudulent, and the
payee, either from actual knowledge or the nature of the trans-
action, had notice of it. If, for example, the Trustees of Colum-
bia College in New York bought a cargo of cotton, and gave
their negotiable note for twenty thousand dollars, the seller
might suppose that they had need of some means of transmitting
a large amount of money, and found that they could do it to
most advantage by \ising this cotton ; or that they wanted it for
some other legitimate purpose. Such a note would clearly be
valid in the hands of a bona fide holder without notice ; nor do
we think that the nature of the transaction merely would be
notice to the original payee that it was giveji for an unauthor-
ized purpose. (^)

(q) See cases supra.

(r) Barker v. Mechanic Ins. Co., 3 Wend. 94 ; Hart v. Missouri State Mat. F. & M.
Ins. Co., 21 Misso. 91 ; Safford v. Wyckoff, 4 Hill, 442. See McCuIIough v. Moss,
5 Denio, 567.

(s) Bank of Genesee v. Patchin Bank, 3 Kern. 309 ; Willmarth 7j. Crawford, 10
Wend. 341. But see Halstead v. Mayor of New York, .5 Barb. 218, 3 Comst. 430.

(t) In Moss V. Rossie Lead Mining Co., 5 Hill, 137, it was held, that if an incor-
porated company purchase property and convert it to their own use, tliey will not be
permitted to defeat a recovery for the price, by showing that the purchase, on account
of the nature of some of the property, was probably, though not necessarily, an abuse
of the powers granted by their charter ; otherwise, if the vendor was apprised at the
time of the sale that the company were acting in violation of their charter. In that
^case, the Rossie Lead Mining Company, a corporation, purchased a large amount of
property which had been previously used by the vendor in carrying on the business of
washing and smelting lead ore, consisting in part of a house and lot, fifty acres of im-
proved land with several houses thereon, a building which had been used for a store,
a school-house, threshing-machine, &c. Hp.IcI, in an action upon one of several notes
given for the pui'chase-money, that the purchase was not necessarily an excess of the
power granted by the charter, and that the plaintiff was, therefore, entitled to recover.
Cbwe.i, J. said: "I am not aware that a corporation, more than another, may pur-
chase and convert an article to its own use, and then object that it acted beyond the
statute power. It is itself a sort of agent, and must be the judge as between itself and
the vendor whether the article be wanted or not. The vendor cannot pronounce upon
the question. A school-house or threshing-machine may be useful, though it be con-

166 NOTES AND BILLS. [CH. V.

If it appears upon the face of a bill or note made by a cor-
poraiion, that the corporation was prohibited from making it, it
has l)een held that every holder must take notice of this at his
peril, (w)

A corporation is not authorized, it is said, to give a note for
the accommodation of a third person ; and any one who receives
such a note, with notice of the circumstances under which it was
given, cannot recover upon it.(y) We cannot but think, how-
ever, that there may be exceptions to this rule.

ceded that the corporation have no power to keep school, hire a schoolmaster, or
embark in the employments of agriculture. The materials of either may have been
desirable for improving the legitimate apparatus. Being on the spot, it might have
been thought prudent to take them to pieces and devote their parts to lawful repairs.
The purpose is a secret between the company and the hands that transact their business ;
and as against the vendors, who have not been told that the purchase was an idle one,
the comi)any must be estopped. If they really abuse their power in making purchases
of that sort, the people have a remedy by information in the nature of a quo warranto.
The vendor knows not, nor can he conjecture, that his vendees arc engaged in violating
the policy of the country. He is innocent : the vendees alone are guilty." But see
McCullough V. Moss, 5 Denio, 567. See also Indiana v. Woram, 6 Hill, 33.

(u) Thus, in Broughton v. Manchester & S. Water- Works Co., 3 B. & Aid. 1, it was
held, that a corporation, other than the Bank of England, could not be acceptors of a
bill of exchange, payable at a less period than six montiis from the date ; because such
a ease falls within the provision of the several acts of Parliament passed for the protec-
tion of the Bank of England, by which it is enacted, that it shall not be lawful for any
body corporate to borrow, owe, or take up any money upon their bills or notes payable
at demand, or at any time less than six montiis from the borrowing thereof; and the
objection apjjcaring on the face of the bill, no recovery could be had thereon by any
subsequent indorsee. Ilolroyd, J. said : " I take it to be clear, that where a statute pro-
hibits a thing to be done, and does not expressly avoid the securities which fall within
the prohibition, there, if the violation of the law docs not appear on tlie face of the
instrument, and the party taking it is ignorant that it svas made in contravention of the

statute, it is an available security in the hands of such a person But here the

defendants are made a corporation by a |)ul)lic act of Parliament, and every person is
bound to take notice of that act; and when, therefore, a holder of a bill, though a bona
Jide indorsee, takes the defendants' acceptance, he must know that they arc a bodyf
corporate ; and he therefore receives it, knowing it to be the acceptance of a corporation
prohibited from owing money on such a bill : he is not, therefore, an innocent indorsee,
because he takes a liill which he knows to be jirohibited by statute " And see SafTord
V. WyckoflT, I ILll, 11, 4 Hill, 442; Attonuy-General v. Life and Fire Ins. Co., 9
Paige, 470.

(r) It was so decided in the recent case of Bank of Genesee v. Patchin Bank, 3
Kern. 309. Denio, J. said : "It is quite dear that the officers of a banking association
or other corporation have no power to engage the institution as the surety for another,
in a business in which it has no interest. Such a transaction is without the scojie of
the business of the company. The antiiority of the governing ofiiccrs of a corporation,
to affect it by their contracts in its name, is of the same general character as that

CH. v.] CORPORATIONS. 167

It may Ijo added, that a corporation may be sued in assumosit
on any simple contract which they have power to make.

They can make a note or accept a bill only by an agent or
attorney. But they can give tlic requisite authority by vote, or
by conferring any powers or any employment upon an agent,
which, by a reasonable implication, gives this authority. Thus,
a general agent for business in which notes are frequently given,
may give the note of the corporation. (i/;)

But an agent or factor employed for a specific business can-
not go beyond it and give a note. Thus, in Massachusetts
many years ago it was held, that an agent authorized to sell
goods for a corporation, and to purchase the stock of which
they were made, and even to purchase this on credit, could
not give the note of the corporation. (;r) And more recently,
the Supreme Court of the same State held, that an agent au-
thorized by a corporation to advance money to a mortgagor of
land to them, for a specific pvirpose, could not bind them by
giving their note for the same amount. (?/)

A corporation, like a natural person, may transact its business
in the name of an agent ; and the agent's name is then, j)ro hac
vice, the name of the corporation. If, therefore, the agent of
a corporation gives a bill or note in his own name, but for tlie
debt or in the business of the corporation, and it appears that
this was the mode in which the corporation usually transacted
its business, it will be bound. (2^)

whicli a partner has to bind the firm. In citlier case, if they contract in a matter to
which the business of the corporation or partnership does not extend, their engage-
ments are invalid as against the corporation, for want of authority to conclude those in
whose behalf they assume to act. I do not speak now of a case where the particular
transaction is forbidden by some positive law, or is hostile to some principle of public
policy, but simply as to cases where tlic question relates to the authority of the agent.

Tiie otliccrs of a bank have no right to indorse in its behalf the paf)er of other

persons in which it has no interest, or to make tlie bank a party to paper for the
accommodation of any one. Such contracts are void, upon the same principle that an
indorsement by a partner of the firm name, without the consent of his copartners, for
the accommodation of a third person, would lie inoperative against the firm."

{w) See Narragansett Bank v. Atlantic Silk Co., 3 Met. 282; McUcdge v. Boston
Iron Co , .") Cush. 1.58.

(x) Emerson v. Providence Hat Man. Co., 12 Mass. 237.

(y) Webber v. Williams College, 23 Pick. 302. And see anie, p. 116, note .t.

(2) This point was much considered in Mellodge ;;. Boston Iron Co., .5 Cush. 1.58.
That was an action against the defendants on certain promissory notes, signed
"Horace Gray & Co." At the trial the judge instructed the jury, that, as the defend

168 NOTES AND BILLS. [CH. V.

If a corporation, certainly authorized to make, sign, accept,
or indorse negotiable paper, has an officer autiiorizcd to use
their name in this way, and this officer writes his own name,
as drawer of a bill of exchange, with the express addition of

ants' corporate name did not appear on the notes, and the notes on their fsice did not
disclose any agency, Horace Gray & Company, the signers, and not the defendants,
were bound thereby ; but that this was not to be understood to prevent tlic plaintiff"
from maintaining his action, if the jury should be satisfied that the notes were in fact
the notes of the Boston Iron Company, executed under a name adopted and sanctioned
by them as indicative of their contracts. It was held, that this instruction was correct.
Sh(ia\ C. J. said : " The effect of the instruction thus given, we think, was, that the
facts mentioned in the prayer for instructions, to wit, the corporate name not ajjpcaring
on the notes, and the notes not disclosing any agency, but signed Horace Gray & Com-
pany, constituted prima facie evidence that those were the notes of Horace Gray & Com-
pany and not of the Boston Iron Company; and, standing alone, would warrant and
recpiire the direction, that Horace Gray & Company, and not the Boston Iron Com-
pany, were bound by them ; but that this evidence might be rebutted and controlled by
proof (i//!fn(/e that they were in fact the notes of the Boston Iron Company, because
executed under a name adopted and sanctioned by them as indicative of their contracts,
and, it may be added, given in satisfaction of their debt. The court are of 0])inion that
this direction was correct. If by any possible proof the presum})tion arising from the
face of the note, and from the form of the execution, from the corporate name of the com-
pany not being used, and the use of the name of a mercantile firm, could be rebutted,
then the evidence was prima facie, and not conclusive. It seems to be now well settled,
in this Commonwealth, since the great multiiilication of corporations, extending to al-
most all the concerns of business, that trading corporations, whose dealings embrace all
transactions from the largest to the minutest, and atfect almost every individual in the
community, are affected like private persons with obligations arising from implications
of law, and from equitable duties which imply obligation ; with constructive notice, im-
plied assent, tacit acquiescence, ratifications from acts and from silence, and from their
acting upon contracts made by those professing to be their agents ; and, generally, by
those legal and equitable considerations which affect the rights of natural persons. Wc
arc not dealing here with the weight, force, or effect of the evidence, but oidy whether
any evidence aliunde could control the presumjjtion arising from tiic notes ; and we
tliink there was evidence competent to go to the jury, from which they might infer that
the defendants had so adopted a name, other than their corporate name, for the special
purpose of giving notes, as to be bound i)y it when used by a general agent, in liquida-
tion of tiieir own debts Under this same objection, also, the question was dis-
cussed, whether n corporation can adopt tiie name of a mercantile firm, and biml them-
selves by notes given in its name. It may not be a wise arrangement, Itut we are not
p'-epared to say they cannot do it. 8up])ose the case, which actiudiy occurred, as ap-
pears in the case of Goddard i\ Pratt, 16 Pick. 412, that a nianufacttiring corporation
pass a vote or by-law, providing that all their mercantile business shall l)e done and
contracts made in the mime of a parinersliip, whose stock they have taken, and to
whose bu>iness they have succeeded This may lie wise in such a case, in order to keep
up an establishcfl, extensive, and valmible correspondence, and retain the run of custom
and gooil-will of an old, established firm. That case was the reverse of the present,
and the stru^gh' there was to charge the firm, who defended on the ground that their
firm name designated the obligations of the company, and not their own ; and 'he cusf

CH. v.] CORPORATIONS. 169

his office, it seems that he will be held to do this officially, and
not personally, and to bind the corporation and not himself. (a)
And a bill drawn upon and accepted by him in the same way,
will be held to have been drawn upon and accepted by the
corporation. (6)

Any si<^nature of a corporation should always be by writing
the name of the corporation, and adding, " by A. B., agent," or
" treasurer," &c. And the body of the instrument should con-
tain the name of the corporation only. But it is very common

to find a note running " I, A. B., Treasurer of Company,

promise," &c., and signed " A. B., Treasurer of Company" ;

and a note actually of the corporation, if made and signed in
this way, should, we think, be held in law to be their note.(6')

turned on the question, whetlier the plaintiff, when he dealt with them, knew of the dis-
solution of the old firm ; if he did not, then, by a well-known rule of the law of part-
nership, the firm was bound to him, not having given notice of their dissolution. Had
the point in that case been whether the corporation were bound, we can have no doubt
that they would have been held bound by tiieir vote for notes made in the name desig-
nated." And see, to the same cflTect, Conro v. Port Henry Iron Co., 12 Barb. 27, 55.
See also, ante, p. 92, note y.

(a) Thus, in Witte v. Derby Fishing Co., 2 Conn. 260, a bill was drawn by the
president of the conipanj', containing a direction to tlie drawee to place the amount " to
account of the Derby Fishing Company," and signed " Canficld Gillet, President."
Held, that the company were lialile as drawers. So in Safford v. Wyckotf, 1 Hill, 11,
4 Hill, 442, it was held, that a bill of exchange commencing, " Fanners' Bank of Seneca
County," directing the drawee, afier payment, to "charge this institution," and signed
"J. J. Fenton, Cashier," was to be deemed tlie act of the bank. But in Kean v. Davis,
1 N. J. 683, where a bill of exchange directed the drawee to "charge as ordered," and
was signed " Jolm Kean, President E. & S. R. R. Co.," it was lir^ld, that Kean was,
prima facie, personally liable as drawer.

(6) In Shelton v. Darling, 2 Conn. 435, the bill was directed to " Noyes Darling,
Esq., Agent of the Commission Company," and was accepted '• Noyes Darling, Agent
C. C." Held, tliat it was the acceptance of the company, and not of Darling. So in
Farmers' and Mechanics' Bank ;;. Troy City Bank, 1 Doug. Mich. 457, it was held,
that a bill of exchange directed to "John A. Welles, Cashier Farmers' and Mechanics'
Bank of Michigan," and accepted by writing across the face thereof, " Accepted, John
A. Welles, Cashier," was drawn upon and accepted by the bank, and not by Welles in
his individual capacity. In Moss v. Livingston, 4 Comst. 208, a bill was drawn on,
and accepted by "J. R. L., President of the Rosendale Manufacturing Co." That
company was a corporation, and J. R. L. was the president ; but there was no proof that
he was authorized to bind the company by his acceptance. Held, that an action on the
acceptance was properly brought against J. R. L. individually. See ante, p. 97, note o.

(c) Mann v. Chandler, 9 Mass. 335. But see Barker v. Mechanic Fire Ins. Co., 3
Wend. 94 ; Brockway v. Allen, 17 Wend. 40 ; Hills v Bannister, 8 Cowen, 31 ; M'Clure
V. Memiett, I Blackf. 189; Meai-s v. Graham, 8 Blackf 143; Cleaveland v. Stewart, 3
Ga. 283.

VOL. I. 15

170 NOTES AND BILLS. [CH. V.

If the note begins, " The President and Directors of Com-
pany ]»roniise," <fec., and is signed " A. B., President," or " Sec-
retary," or " Cashier," or " Treasurer," or " Agent," it is un-
doubt(idly the note of tlie corporation. (i/) In fact bank-bills
are universally signed in this way. It has been said, that if
a note be in this form, " I, John Franklin, President of the
Mechanic Fire Insurance Company, promise," &c., (Signed)
"John Franklin"; or in this form, "I promise to pay," <fec.,
(Signed) "John Franklin, President of the Mechanic Fire In-
surance Company " ; that in both of these cases it is the noie
of Franklin, and not of the Company. (e) But we doubt the
correctness of these positions. There can be no reasonable
doubt, in either of the above cases, that the intention was to
bind the company, and not the president personally. (/)

If a bill or note is made payable to " A. B., Cashier," we
have authority for saying that an action may be maintained
upon it, either by A. B. personally, (^j^) or by the bank of which
he is cashier, if the paper was actually made and received on
account of the bank.(/i) And where a promissory note, was
made payable " to the Cashier of the Commercial Bank or his
order," and the consideration proceeded from the bank, it was
held, that an action on the note might be maintained in the
name of the bank as the promisee. (j) A note or bill made

(rf) Mott V. Hicks, 1 Cowen, 513; Pitman v. Kintner, 5 Blackf. 250; Commercial
Bank v. Newport Man. Co., 1 B. Mon. 13 ; ShotwcU v. M'Kown, 2 South. 828. In
Fitch V. Lawton, 6 How. Miss. 371, the note was in the followin<^ form : —
Post Note. " Coinmercial Dank of Bodruy,

$ 100. — No. 40. Rodney, Miss., 8 March, 1839.

Six months after date, we promise to pay R. W. Wortliin<,'ton or order one hundred
dollars, at the hank in Rodney, with five per cent interest until due.

J. Lawton, Cash'r. Thomas Freeland, Pres't."

Ihkl, that prima facie it was binding upon Freeland and Lawton individually. Sed
qucere.

(e) Per Savcuje, C. J., in Barker v. Mechanic Fire Ins. Co., 3 Wend. 94.

(/) See Lindus v. Melrose, 3 IL & N. 177; A|.'«s v. Nicholson, 1 IL & N. 1G5 ;
Ilealey v. Story, 3 Exch. 3 ; Penkivil v. Council, 5 Fxch. 381.

((/) Fairfield v. Adams, 16 Pick. 381 ; Shaw v. Stone, 1 Cush. 228, 254.

(Ii) Watcrvlict Bank i-. White, 1 Dcnio, 008 ; Barney i'. Ncwconih, 9 Cush 46 ; Du-
pont V. Mount Pleasant Ferry Co., 9 Rich. 255; Wright v. Boyd, 3 Barl). 523.

(i) Commercial Bank v. French, 21 Pick. 486. Morton, J. said : " The note is in
terms payal)ie ' to the cashier of the Commercial Bank ' ; and the defendant contenda
that the acti<»n should have been brought in the name of the ])erson who tvar, then
cashier, and will not .lie in the name of the corporation. It is not denied tluu the prop-

CH. v.] CORPORATIONS. 171

payable to the order of the cashier of a bank authorized by-
its charter to indorse, is as negotiable as if payable to the order
of the bank. (7)

If a bill or note belonging to a bank be indorsed " A. B.,
Cashier," there may be some doubt wliether this alone will
be sufficient to pass the property in the note ; and still more
would it l)e doubtful whether it would render the bank liable
as indorscr. But it has been satisfactorily established that the
holder may fill up such an indorsement so that it will read
"The President and Directors of Bank, by A. B., Cash-
ier. (^^) We have already seen that such an indorsement will

erty of the note is, and ever has been, in the plaintiffs ; but the argument is, that the
promise bein<;' in the name of tlie casliier, although made to him iu trust, and for the

benefit of the corporation, it can only be enforced in his name A contract may

be made to or with a person, as well by description as by name. And where the par-
ties can be ascertained, it will be valid, although their names be mistaken or tiieir de-
scription be incorrect. It cannot be doubted that a note to the Commercial Bank would
be valid, and might be declared on as a promise to the plaintiffs, although their legal
name is, ' The President, Directors, and Company of the Commercial Bank.' So a
contract with the stockholders, or with the president and directors, or with the directors
of the Commercial Bank, would doubtless be, iu its legal effects, a contract with the
corporation. It is not easy to perceive why a contract with the cashier of a bank is not
a contract with the bank itself. The accounts of banks with each other are usually kept
in form with the cashiers, but undoubtedly the banks themselves are the real parties to
them. The Master, &c. of Sussex Sidney College v. Davenport, 1 Wilson, 184. A
corporation being an incorporeal being, and having no existence but in law, can neither
make nor accept contracts, receive nor pay out money, but by the agency of its officers.
They are the hands of the corporation by which they execute their contracts, and re-
ceive and make payments. Of these officers the cashier is the principal. If the note
had been made to the corporation, by its appropriate name, the same officer would have
demanded and received payment, or would have given notice of non-payment and pro-
tested it, and, had it been negotiated, would have made the indorsement, and in pre-
cisely the same form as he would upon this note The principle is, that the

promise must be understood according to the intention of the parties. If in truth it be
an undertaking to the corporation, whether a right or a wrong name, whether the name
of the corporation or of some of its officers be used, it should be declared on and
treated as a promise to the corporation. And there is no so safe criterion as the consid-
eration. If this proceed from the corporation, it raises a very strong presumption that
the promise is made to them. If no express promise be made, but it be left to legal
implication, it must be to them." And see Medway Cotton Manufactory v. Adams, 10
Mass. 3G0.

(_/) Haynes v. Beckman, 6 La. Ann. 224.

{k) Northampton Bank v. Pepoon, 11 Mass. 288 ; Folger v. Chase, 18 Pick. 63. In
tlie recent case of Bank of Genesee v. Patchin Bank, 3 Kern. 309, where the indorse-
ment was in the same form, and the action was brought against the bank as indorser,
Denio, J. said : " I find some difficulty hi saying that this indorsement, as it stands,
can be held to be the contract of the defendant. But I am of opinion that the defend-

172 NOTES AND BILLS. [CH. V

not render tlie cashier personally liable. (Z) A person wlio car-
ries on business on his own account, in the name of a company
which has been incorporated but not organized, and receives
in payment of a debt contracted with him in such business a
promissory note payable to the order of the corporation, may
transfer the note by indorsing it in his own name.(m)

It is doubtful whether the president, secretary, treasurer,
cashier, or any other officer of a corporation, has prima facie
a general authority to bind the corporation as a party to bills

ant should be held liable as indorser upon a different principle, — that of allowing the
indorsement to be filled up according to the intention of the parties. In the Northamp-
ton Bank v. Pei)Oon, 1 1 Mass. 288, the defendant was sued as the maker of a negotiable
promissory note, which had been indorsed to and held by the Berkshire Bank ; and the
question was, as to the transfer by that bank to the plaintiff. The indorsement was by
one Learned, an attorney, with full authority from the board of directors ; but the form
in which it was done was by the attorney writing his own name upon the note, adding,
'as attorney ' The formal words of a common indorsement appear to have been in the
first instance written over the name of the attorney, but the court allowed it to be al-
tered and filled up as an indorsement by the Berkshire Bank, according to the intent.
The court, Chief Justice Parker giving the opinion, upon a motion for a new trial, said :
' We are all satisfied that if the authority of Learned was good to indorse as attorney,
the plaintiffs may erase the words written over liis name, and substitute other words,
which will give effect to the indorsement' Folgcr v. Chase, 18 I'ick. 63, presented
substantially the same question. The plaintiff, in an action against the prior parties to
several notes which had been indorsed to, and held by, the Pheenix Bank, made title to
the notes by the indorsement of the cashier of that bank made in the same form with
that of the bill in question, namely, ' P. IL Folger, Cashier.' It was held that the
plaintiffs were entitled to recover, tlie court saying: 'As to the objection that the in-
dorsement is not made in the name of the corporation, we think tlie indorsement by the
cashier, in his official capacity, sufficiently shows that the indorsement was made in he-
half of the bank ; and if that is not sufficiently certain, the plaintiffs have a right now to
prefix the name of the corporation.' It will not fail to be remarked, that these actions
were not against the bank whose officers had indorsed the pajjer, but against ])rior par-
ties ; but the (pu'stion in each case was as to the effect of what had been done towards
transferring the paper. This, however, does not affect their ai>plication to this case;
for if the indorsement operated to transfer the paper upon the principles of the law
merchant, it at the same time created I)y force of the same law the ()l)ligation of indorse!'.
If the holder in these cases could write the name of the corporation over the signature
of the officer, the contract would then be in the usual form, and would carry with it
the ordiiniry consequences. The princijjle thus settled by the Supreme Court of Mas-
sachusetts carries into effect tiie intention of tiie jjarties to such transactions, is in
accordance with legal analogies, by which effect is given to indorsements on negotiable
paper by allowing them to be filled up in such nnmner as to carry tint what was de-
signed, and is not opposed to any case in our own courts. 1 am disposed to follow it iu
this ease." The ])oint was not decided by the court.

(/) Sec ante, p. 96, note /«.

(m) Bjyant v. Eastman, 7 Cush. 111.

en. v.] CORPORATIONS. 173

of exchange or promissory notes. (li) It has been held, how-
ever, tliat the cashier of a bank has prima facie authority to
indorse all paj^er belonging to the bank, so as to pass the prop-
erty and render the bank liable as indorser.(o) That he has
authority to indorse, for the purpose of collection merely, tliere
is no doubt. (/?) It may be well to remember, that at common

(n) See Moss v. Livingston, 4 Comst. 208; McCullough v. Moss, 5 Denio, 567;
Farmers' and Mechanics' Bank v. Troy City Bank, 1 Doug. Mich. 457.

(o) Tims, in Wild v. Bank of Passamaquoddy, 3 Mason, 505, Slorj, J. said: " Tlifi.
ca.-;hicr of a bank is, virlute officii, generally intrusted with the notes, securities, and
other funds of the bank, and is held out to the world by the bank as its general agent
in the negotiation, management, and disposal of them. Prima facie, therefore, he
must be deemed to have authority to transfer and indorse negotiable securities, held
by the bank, for its use and jn its behalf. No special authority for this purpose is
necessary to be proved. If any bank chooses to depart from this general course of
business, it is certainly at liberty so to do ; but in such case it is mcumbent on the bank
to show that it has interposed a restriction, and that such restriction is known to those
with whom it is in the habit of doing business. In the present case, the cashier has, as
cashier, indorsed the bill in behalf of the bank, and this \s prima facie evidence of au-
thority, it being within tJie ordinary duties performed by such an officer. If he was
restricted in his authority, it is for the defendants to show it. The proof is in their
possession, luid tlie plaintiff, who is a stranger to their regulations, cannot be presumed
to be conusant of it." So in Fleckner v. U. S. Bank, 8 Wheat. 338, 360, Story, J.,
delivering the opinion of the court, said : " We are very much inclined to think that
tlie indorsement of notes, like the present, for the use of the bank, falls within the ordi-
nary duties and rights belonging to the cashier of the bank, at least if his office be like
that of similar institutions, and his rights and duties are not otherwise restricted. The
cashier is usually intrusted with all the funds of the bank, in cash, notes, bills, &c., to
be used, from time to time, for the ordinary and extraordinary exigencies of the bank.
He receives directly, or through the subordinate officers, all moneys and notes. He
delivers up all discounted notes, and other property, when payments have been duly
made. He draws checks, from time to time, for moneys, wherever the liank has de-
posits. In short, he is considered the executive officer, through whom, and by whom,
the whole moneyed operations of the bank in paying or receiving debts, or discharging
or transferring securities, are to be conducted. It does not seem too much, then, to
infer, in the absence of all positive restrictions, that it is his duty as well to apply the
negotiable funds as the moneyed capital of the bank to discharge its debts and obliga-
tions." And see, to the same effect, Everett v. United States, 6 Port. Ala. 166 ; Harper
V. Calhoun, 7 How. Miss. 203; Farrar v. Oilman, 19 Maine, 440. But sec U. 8.
Bank v. Fleckner, 8 Mart. La. 309, and eases cited in next note.

(/)) Hartford Bank v. Barry, 17 Mass. 94 ; Elliot v. Abbot, 12 N H. 549. This was
an action of assumpsit, upon a promissory note, dated Sei)ternber 30, 1839, payable to
the President, Directors, and Co. of the Ashuelot Bank, or order, in sixty days and
grace, and alleged to be indorsed by the cashier of the bank to the ])laintiff. The note
in question was signed by John Townsend as principal, and by the defendant as surety,
and had upon it the indorsement of the cashier of the bank. In giving the opinion of
the court, Parker, C. J. said : "Although the bank never had any interest in this note,
we see no objection to regarding it as having been made to them, and indorsed to the
15*

174 NOTES AND BILLS. [CH. V.

law no stockholders of any corporation are liable for its debts,
in any form. But this rule is importantly qualified by statutes
in many of our States.

plaintiff, if the indorsement can be upheld upon the evidence. The signers did promise
to pav the bank ; and as they made tlie promise negotiable, the bank might well trans-
fer it. And it makes no difference to the defendant, whether the bank discounted the
note, and then sold and indorsed it to the plaintiff^; or whether the plaintiff, iiaving
funds in the bank, furnished the money in the first instance, the bank indorsing the
note to him, and the defendant assenting to the transfer. We come, then, to the
question. Has this note been indorsed to the plaintiff, by the bank ? Is that allegation

in the plaintiff's declaration sustained ? The defendant may deny this The

ground upon which the cashier may indorse the name of the bank, and transfer the
legal interest, in any case, is not because the indorsement is merely nominal, transfer-
ring no actual property. If it were so, this indorsement might be supported as the
indorsement of the bank. But it is, that the cashier is the agent of the bank for that
purpose ; — that, by virtue of his appointment as cashier, the bank authorizes him to
make indorsements in such cases. Tested by this principle, the indorsement in this
case must fail. It is not the act of the bank, because not made by an agent having
power to make an indorsement in such case. The directors are the general agents of
the bank. The cashier is a special agent, and a matter of this kind is not within the
scope of his authority. The plaintiff's allegation that the note was indorsed by the
bank, therefore, fails ; and this is a material allegation as the case now stands."

CH. VI.] CONSIDERATION. 175

CHAPTER VI.

OF THE CONSIDERATION.

SECTION I.

OF THE GENERAL PRINCIPLES IN RELATION TO THE CONSIDERATION
OF NOTES AND BILLS.

By the rules of the common law, no promise which is not
made for a consideration can be enforced. This consideration
may be either a gain or benefit of any kind to him who makes
the promise, or a loss or injury of any kind suffered by him
to whom it is made ; such gain being the cause of or the
inducement to the promise, and the promise being the cause
of or the inducement to such loss.

To this rule there is an exception, by the ancient law, in
favor of a written promise which has a seal attached to it ;
or, as it is commonly expressed, a promise under seal ; for
the seal, according to the law, imports a consideration. And
there is another more recent exception by the law merchant,
in favor of negotiable bills and notes in the hands of third
parties.

Even as between immediate parties, this exception has some
application. For as between them, unlike the case of other
parol contracts, a consideration is presumed in the first in-
stance, and therefore need not be proved. But this presump-
tion may be rebutted by evidence ; and proof that there was
no consideration in fact will constitute a perfect defence. As
to subsequent bona fide holders, on the other hand, this pre-
sumption is conclusive. As to them, it is immaterial wheth-
er there was any consideration between prior parties or not.
Therefore, a maker cannot defend himself, on the ground that
he promised without consideration, against the suit of an in-
dorsee ; nor can an indorser against the suit of the indorsee of

176 NOTES AND BILLS. [CH. VI.

his indorsee. But a maker sued by the payee, or an indorser
by his indorsee, or, in general, any promisor sued by the party
to whom he directly promises, may make this defence.

We shall find both the reason of this rule and the limitation
of it in the nature and purpose of negotiable paper. It is in-
tended to represent money ; and the rules of law are intended to
make this representation accurate and adequate. A, then, hold-
ing a note against B, indorses it to C in some business transac-
tion, as money. C can judge for himself of B's ability to pay,
and of A's, and accepts the note. Whether A paid anything to
B for it, or whether B had any consideration whatever, or whether
if there were a consideration it has or has not failed, C knows
not. Perhaps he could ascertain this by sufficient inquiry ; but
the inquiry would require much time and labor, and could not
be made in every case in which negotiable paper is used in busi-
ness, without inconvenience so great as very seriously to dimin-
ish the employment and the usefulness of such paper. The law,
therefore, takes care of this for him. If C receives the note in
good faith, B cannot interpose the objection of want or failure
of consideration. The presumption is absolute as to him : and
so it is in favor of any party against any other party, excepting
him from whom he, in reference to whom the question is raised,
immediately received it.

In the case before supposed, C stands in a different relation to
A from what he does to B. Whether any consideration passed
between A and B, he cannot be supposed to know, and the law
infers or rather supplies it for him. But whether any passed be-
tween himself and A, he must be supposed to know, and there-
fore, while the law presumes this prima facie, as a proper protec-
tion to negotiable paper, it permits the defendant to rebut the
presumption by evidence.

In a few of the earlier cases, attempts were made to place ne-
gotiable paper on the same footing with instruments under seal,
even as between the original parties ; [q) especially if it appeared
that the paper was intended as a gift to the payee. (y) But it is

(7) Scr (lirla in Pillans v. Van Microp, 3 Burr. 16G3.

(r) Tlius, in Liviii;,'ston v. Iliistic, 2 Caincs, 246, Liviin/ston, J. said : " Whether the
mere want of considOralion, even between tlic ont;inal parties, can be nllej^cd af^auist a
promissory note, or a bill of cxclianj^c, may well in; doubted. It is not necessary, as in
otlicr simple contracts, to state a consideration in the declaration ; the instrument itself

CH. VI.] CONSIDERATION. 177

now well settled, that, in an action against a party to a bill or
note by his immediate promisee, a want or failure of considera-
tion furnishes the same defence as in the case of any other parol

imports one, and in tliis respect p;irt;ikes of the quality of a .specialty. Nor is the
plaintiff hound to prove his givinj^ any value for such paper, unless when he sues as
bearer of a hill transferahle hy delivery, and that under suspicious circuinstiinccs.
Grant v. Vaufjhan, 3 Burr. 1516. No case can be found where the want of considera-
tion alone has been admitted as a good defence. As ajrainst the payee, the maker, it
is true, lias been permitted to.show, not a want, but a failure, of consideration, and in
f.U cases he may insist on the illegality of it. Chitty says, that the want of consid-
eration may be relied on, but not one of the decisions which lie cites will bear him
out. In Jefferies !». Austin, I Stra. 674, the defendant was only permitted to show
the note was delivered in the nature of an escrow, and it appearing that the condi-
tion on whicii it was to take effect had not been performed, a verdict was found for
him. Here, the consideration which had induced the defendant to make the note
failed, but if he had given it to the plaintiff voluntarily, as a gift, and without receiving
any value, this would hardly have been a good defence." In Bowers v. Hurd, 10 Mass.
427, a woman possessed of a sum of money and desirous of leaving a legacy to a friend
to whom slie thought iierself under obligation, and desirous also to avoid the expense
attending a will, made a promissory note payable to that friend, which she placed in
the hands of a third person to be by him delivered over to the promisee after her decease.
She recognized the transaction in her last sickness, and put into the hands of a person
about her, personal securities for the payment of her debts and funeral charges, and
especially this promissory note. It was lield, that the promisee was legally entitled
to the contents of the note, in an action against the administrator of the promisor,
her estate being solvent. Parker, J. said : " We do not admit that, when one volun-
tarily makes a written promise to another to pay a sum of money, the promise can be
avoided merely by proving there was no legal and valuable consideration subsisting at
the time ; any more than, if he actually paid over the amount of such note, he can re-
cover it back again, because he repents of his generosity. He has, indeed, precluded
himself and his representatives from denying a consideration, when he has under his
hand acknowledged one. That consideration may not have been of a nature to support
an iiultbitaliis assumpsit upon an implied promise ; but may, nevertheless, have been a
just and adequate foundation of his promise; and as the circumstances of the transac-
tion may be whoLU^ninknown to any but the immediate parties, there is no reason for
permitting an executor or administrator to dispute what the deceased never ([uestioned
in his lifetime, and never intended should be questioned after his death. We are satis-
fied that none of the decisions respecting the avoidance of notes or other written
promises, for want of consideration, are impeached by our decision in this case. A
careful examination will discover, that in all those cases the ground taken in defence is,
not that there was originally no consideration, contrary to the express admission of
the promisor, but that the consideration had failed, or that it rested in mistake or
misapprehension ; what the parties supposed to be a consideration turning out in fact
to be none. It was on this principle that the case of Boutell v. Cowdin, 9 Mass. 254,
was decided. In those cases the promisor is always permitted, against the party
with whom he contracted, to show the mistake or the failure of what was supposed to
be substantial. This does not contradict his own acknowledgment of value received,
but sets up an equitable claim of discharge, upon the ground that both parties were
deceived in the contract. Fraud, illegality, and imposition are also proper defences
Against actions to enforce such promises, depending upon other principles." And see
Vol. I.— M

178 NOTES AND BILLS. [CH. VL

contract. (s) And if A makes a note in favor of B, and delivers
it to B without consideration, intending it as a gift, and after-
wards takes it up and gives a new note instead, this renewed note
is without consideration. (^) So also it is weU settled that the

Tate V. Hilbert, 2 Ves. Jr. Ill ; Seton v. Seton, 2 Bro. Ch. 610; Per Parke, B. in
Eastou V. Pratchett, 1 Cromp. M. & R. 800, and Milues v. Dawson, 5 Exch. 948. But
see next note.

(s) Thus, in Holliday v. Atkinson, 5 B. c&, C. 501, where a promifsory note, ex-
pressed to be for value received, was made in favor of an infant a^ed nine years, and
in an action upon the note by the payee against the executors of the maiicr, no evi-
dence of consideration being given, the learned judge told the jury that tlie note, being
for value received, imported that a good consideration existed, and that gratitude to the
infant's father, or aifcction to the child, would suffice. Held, that although the jury
might have presumed that a good consideration was given, yet that those pointed out
were insufficient ; and a new trial was granted. In Easton v. Pratchett, 1 Cromp. M.
& R. 798, 2 Cromp. M. & R. 542, to a declaration on a bill of exchange by indorsee
against indorscr, the defendant pleaded that he indorsed the bill to the plaintiff, with-
out having or receiving any value or consideration whatsoever for or in respect of his
said indorsement ; and that he, the defendant, had not at any time had or received any
value or consideration whatsoever for or in respect of such indorsement. Held, after
verdict, that the plea was sufficient. In Pearson i'. Pearson, 7 Johns. 26, which was an
action by the payee against the maker of a promissory note, the court said : " The
validity of the note cannot be supported upon the ground taken at the trial, of its being
a gift ; for a gift is not consummate and perfect until a delivery of the thing j)romised ;
and until then the party may revoke his jiromise. A parol promise to pay money, as
a gift, is no more a ground of action than a promise to deliver a chattel, as a gift. It
is the delivery which makes the gift valid. Donatio perjlcitur possessioiie urcipientis.
Noble V. Smith, 2 Johns. 52. The question then was upon the delivery and consid-
eration of the note ; for if there was no consideration for the note, it was a nude pact,
and void as between the original parties to it." In Fink v. Cox, 18 Johns. 145, a
father, from aft'ection merely, gave to his son a promissory note for one thousand dol-
lors, payable to him or order, sixty days after date. In an action of assum])sit brought
by the son against the executor of his father, to recover the amount of the note, it was
held, that the action could not be maintained, for it was not a donatio causa vioitis, nor
a valid gift of so much money, but a mere jjromise to give ; and blood or natural aft'ec-
tion is not a sufficient consideration to supjiort a simple executory contract. And sec
Schoonmaker i;. Roosa, 17 Johns. 301 ; Sladc v. Ilalsted, 7 Cowen, 322. In Parish i;.
Stone, 14 Pick. 198, it was held, that a promissory note, made upon no other considera-
tion than that of equalizing the distribution of the promisor's estate after his decease,
was without a sufficient legal consideration, and therefore could not sujiport an action
or found a legal claim. In Clement v. Reppard, 15 Pcnn. State, 111, it was held, that
the consideration of a promissory note not under seal, given for a balance on work
done, may be inquired into in a suit between the original parties, even though the
maker, at the time it was given, expressed him.sclf satisfied with it, there being no evi-
dence that, at the time of the settlement or giving of the note, any new consideration
passed from the p.iycc to the maker. And .see Barnet v. Offerman, 7 Watts, 130;
Barnum (;. Barnuin, 9 Conn. 242 ; Klein v. Keyes, 17 Misso. 326 ; Ilayncs v. Thorn, 8
Fost. 386.

(t) Thus, in Cojip i-. Sawyer, 6 N. H. 386, it was held, that where a promispori notfl

CH. VJ.] CONSIDERATION. 179

donor's own promissory note, or an unaccepted bill of exchange
drawn by the donor, cannot be the subject of a dunatio causa
mortis. (it) But the note of a third person is a proper subject of
such gift, even without indorsement, and the donee may main-
tain an action in the name of the executor or administrator of
the donor without his consent. (y)

It is sometimes an important question, and one not always free
from difficulty, particularly in the case of bills of exchange,
whether tlie plaintiff in an action is the immediate promisee of
the defendant, within the meaning of the rule, or whether he is
to be regarded as a remote party. The drawer of a bill of ex-
change is the immediate promisee of the acceptor ; therefore, if
the acceptance was without consideration, the drawer cannot re-
cover against the acceptor. But it is otlierwise of the payee ; he
is regarded as a stranger to the acceptor, in respect to the con-

is madd as a gift, and intended as a legacy, no suit can be sustained upon it, in favor
of the payee, against the executor or estate of the maker ; and where such note is exe-
cuted and delivered as a gift, and afterwards taken up by the maker, and a new note
given for a larger amount in lieu of it, the latter being likewise intended as a gift, the
giving up of the first furnishes no consideration upon which the latter can be sustained,
for any part of the amount. In Hill v. Buckminster, 5 Pick. 391, it was held, that a
promissory note, expressed to be for value received, may be avoided, as between the
payee and the maker, by proving that there was no consideration for it originally ; and
a note given in renewal of one so voidable is likewise without consideration. Parker,
C. J. said : " In coming to this conclusion, we undoubtedly overrule some of the ex-
pressions in the opinion as reported in the case of Bowers v. Hurd, 10 Mass. 427,
though the case itself was rightly decided upon other principles. It is in that opinion
stated that to a promissory note, in wliich value is acknowledged to have been received,
it cannot be objected in defence, between the original parties, that there was no existing
consideration when the promise was made, though it would be competent to show that
the consideration had failed or that it was illegal. But further opportunity to examine
the cases has convinced us that the opinion so expressed is untenable ; there being cases
in the English and other books, which are cases clearly of defence founded upon no
consideration, rather than a failure of one once existing. This, though contrary to the
usual principle of holding a party to his acknowledgment, must be considered as the
law, and we cannot depart from it, however disingenuous such defences generally ap-
pear to be." And see Geiger v. Cook, 3 Watts & S. 266. In Dawson v. Kearton, 3
Smale & G. 186, a different opinion is intimated.

(n) Harris v. Clark, 2 Barb. 94, 3 Comst. 93 (overruling Wright y. Wright, 1 Cow-
en, ,598) ; Parish v. Stone, 14 Pick. 198 ; Smith v. Kittridge, 21 Vt. 238 ; Raymond v.
Sellick, 10 Conn. 480; Holly v. Adams, 16 Vt. 206; Craig v. Craig, 3 Barb. Ch. 76;
Klint V. Puttee, 33 N. H. 520. See contra, Jones v. Deyer, 16 Ala. 221 ; Coutant v.
Schuyler, 1 Paige, 316; Bowers v. Hurd, 10 Mass. 427 ; Woodbridge v. Spooner, 1
Chitty, 661 ; Seton v. Seton, 2 Bro. Ch. 610; Wells v. Tucker, 3 Binn. 366.

(w) Bates V. Kemcton, 7 Gray, 382.

ISO NOTES AXD BILLS. [CH. VI.

sideratioA for the acceptance. Consequently, if the acceptance
is absolute in its terms, and the bill is received by tlie payee in
good faith and for value, it is no ans^ver to an action by him, that
the defendant received no consideration for his acceptance, or that
the consideration therefor has failed. And it is imtuaterial for
this purpose, whether the bill is accepted while in the hands of
the drawer, and at his request, or has passed into the hands of
the payee before acceptance, and is accepted at his request, (z^;)

Uv) Robinson v. Reynolds, 2 Q. B. 196. In assumpsit by indorsee of a bill of ex-
change against acceptors, defendants pleaded that K., the drawer, was in tlie habit of
delivering goods to C. to be carried by him to Liverpool, consigned and deliverable
there to K.'s order, and on so doing, of receiving from C a receipt for the goods, bill
of lading, or document, which, by the custom of merchants, when indorsed for value,
passed the property in the goods, and entitled the indorsee to have them delivered to
him. That K. used to obtain advances from plaintiff on indorsing to plaintiiF such
document, and drawing and delivering to him a bill of exchange on defendants (who
traded at Liverpool as purchasers and commission agents of such goods as K delivered
to C), if the goods were deliverable to defendants, or on some otiicr person to whom
they were deliverable. That plaintiff used to forward the indorsed document to Liver-
pool, and to have it presented to defendants (or such other person), and, on the faith
thereof, and at plaintiff's request, and in consideration of such security on the goods,
defendants (or such other person) used to accept the bill of exchange; of all which
plaintiff had notice. That K., pretending to act in pursuance of such usage, fraudu-
lently indorsed and delivered to plaintiff a document in the usual form, to wliich C.'s
signature was forged, pretending that it was genuine, and that the goods mentioned in
it had been delivered to C, which was false ; and K , at the same time, indorsed the
bill of exchange to plaintiff", who advanced K. the amount on the faith of the document.
That plaintiff indorsed the document, and had it presented to defendants, with tlic bill
of exchange, and requested them to accept the bill of exchange on the faith of, and in
consideration of the delivery of, the document, and delivered the document to them as
a true one. That defendants, in consideration of the goods mentioned in the document,
and confiding and relying on, and in consideration and on the faith of, the document,
and, in ignorance of its being forged, acce])ted tiie l)ill of exchange for and at the re-
quest of ])laintiff. Tiiat so the consideratiun for the acceptance, which defendants had
been indu<ied to make under the mistake into which they had been led by the said con-
duct and indorsenjcnt of plaintiff, wholly failed ; and that there never was any other
consideration for tiio acceptance. The plea did not allege that plaintifT knew the docu-
ment to be forged, or represented it to be genuine. //"/</, by the Court of Queen's
Bench, on motion for judgment twn obstante vencUcto, to be a bad plea. Judgment of
the Queen's Bench affirmed in the Exchequer Chajnber. Tindul, C. J., in delivering
the judgment of the court in the Exdicqiier Chamber, said : " The sole ground on
whi(;h the defendant relies is, that the acceptance was not binding on account of tho
total faihire or insufficiency of the consideration for wliich it was given, tlie document,
on tlic delivery of which the acceptance wa.s given, iiaving been forged, and tlierc never
having lieen any other consideration whatsoever for tlic acceptance of the defendants.
And tins would have been a good answer to tlic action, if the bank had been the drawers
of the bill. But tho bank are indorsees, and indorsees for value ; and tlie failure or
want of consideration between them and the acceptors constitutes no defence ; nor

en. Vf.] CONSIDERATION. 181

It would seem, also, that the question is not always conclusive-
ly determined by the form of the instrument. For, although it
sliould appear, on the face of the bill sued on, that the plaintiff"
was the immediate promisee of the defendant, the plaintiff may
show that he was not so in fact ; but that the bill came to him
througli other hands. Thus, the payee is in general the immedi-
ate promisee of the drawer ; and, in an action by the former
against the latter, a want or failure of consideration for drawing
the bill is a good defence. But if A, in New York, being in-
debted to B, in London, procures C, in New York, to draw a bill
on London in favor of B, and remits the same to B in payment
of his debt, the liability of C to B will be absolute, whether C
received any consideration from A or not. For the transaction
is the same in substance, as if the bill had been drawn in favor
of A, and by him indorsed to B ; and in that case, in an action
by B against C, there could of course be no inquiry into tiie con-
sideration between and A.(.t) But if A were the mere agent

would the want of consideration between the drawer and acceptors (whicli must be
considered as included in the general averment that there was no consideration), unless
they took the bill with notice of the want of consideration, which is not averred in this
plea. Admitting that the bill was accepted by the drawee at the request of the bank,
and on a consideration which turns out to be utterly worthless, the case is the same as
if the bill had been accepted without any value at all being given by the bank to the
defendants ; and, on that supposition, the defendants would still be lial)le as acceptors
to the bank, who are indorsees for value, unless not only such want of consideration
existed between the drawer and acceptors, hut unless the indorsees had notice or knowl-
edge thereof. For the acceptance binds the defendants conclusively, as between them
and every bona fide indorsee for value. And it matters not whether the bill was
accepted before or after such an indorsement. Consistently with every averment in the
plea, the bill may have been accepted on the credit of the drawer, or for his accommo-
dation ; and the plaintiff would then unquestionably have a right to sue, having given
full value for it." The plaintiff is spoken of in this case as an indorsee. The bill was
in fact drawn to the order of the drawer, and by him indorsed to the plaintiff. Tho
plaintiff, therefore, was substantially the payee. Besides, an indorsee, who takes a
bill before it is accepted, is as much an immediate party to the acceptance as the payee.

(x) Munroe v. Bordier, 8 C. B. 862. In this case it was held, that where the purchaser
or remitter in London of a foreign bill gets from the drawer, according to the usage in
London, credit until the next foreign post-day for the amount, and delivers the bill to
the payee, who receives it hona fide and for value, the drawer is liable for the amount
to the payee, although, in consequence of the purchaser or remitter's failure before the
next foreign post-day, the drawer never receives value for it. The declaration stated
that A (the defendant) made a bill of exchange, and directed it to B, a 'merchant in
France, requiring him to pay the amount to the order of C (the ]>laintiff) ; that A
delivered the bill to D, who delivered it to C; and that B refused payment, &c. A
oleaded that he made and delivered the bill to D for the use of C, on the f;\ith and

VOL. I. 16

18"2 NOTES AND BILLS, [CH. VL

of B, any defence which would be good against him would also
be good against B.(^) If a note, payable to B, is indorsed by

terms of being paid the price and value thereof according to the usage of merchants in
that behalf, that is to say, on the next foreisjn post-day ; that neither C nor any other
person, then or at any time before or since, paid him the said price or value of the bill,
or any part thereof; that he never had any value or consideration for the making or
delivery of the bill ; and that C always held and still held the same without any value
or consideration whatever to him (A) for the same. Replication, that, after the mak-
ing of the bill and before it became due, D, who appeared to be, and whom C believed
to be, the lawful holder, delivered the bill to him for a good and valuable consideration,
and without notice of the premises in the plea mentioned. Held, that the plea was no
answer to the action ; and that, even if it were sufficient to call upon to show bona
Jidi's, he did so by his replication. Wilde, C. J. said : " The writers upon foreign bills
contemplate the existence of four parties, — the giver of value, or purchaser of the bill,
or remitter, as he is often called, — the drawer, — the party to whom the bill is to be
paid abroad, — and the drawee. The ordinary course of dealing with reference to for-
eign bills, as described by them, begins by the sale of the bill by the drawer to some
person other than the payee ; it, therefore, does not contemplate that the consideration
for the bill should necessarily move from the payee to the drawer, or that no person but
the drawer should have a right to confer a title to the bill upon the payee. See Bcawes's
Lex Mcrcatoria, Bills of Exchange, par. 6, p. 416 (452), citing Marius, p. 22. And in
par. 14, p. 418 (4.53), he says: 'In case of a remitter's failing before he has paid the
value, and the person on whom the bill is drawn gets advice of this occuiTcnce befora
acceptance, and therefore refuses to accept it, the bill, on its returning protested, shall be
paid, notwithstanding, with all charges, by the drawer, under proof l)y tlie possessor that
he negotiated the said bill, and paid a just value for it.' According to that rule, the
plaintiffs would in this case be entitled to recover; for the plea docs not deny that thcv
gave a just value for the bill. Again, in par. 15, Beawes states tlie law to be, that
where the drawer gives credit to the remitter, without advising his princijial thereof,
if the remitter does not pay the money, the drawer shall sutler the loss. Here, it is not
shown by the plea, that the bill was handed to the plaintiffs before tlie next ])Ost-day, —
and, for tiie reasons above given, it seems to be immaterial whether it was handed over
before or after that day, — nor that the drawers ever gave notice to tlie payees that the
price had not been duly paid. They may, therefore, bo considered to have given credit
to the remitter. It appears to us, then, that, on this declaration and plea, it must be
taken that Coatcs & Co. were the jjurchascrs of the bill in question ; and that the
drawers placed it in their hands with a contiolling power over it, giving them credit
for a certain time for the purchase-money; and that they delivered it to the payees,
who received it boria Jide and for value ; for no fraud is alleged, and value as between
Coates & Co. and the plaintiffs is not denied. Under such circumstances, wc are of
opinion that the plaintiffs acquired a good title to the bill, and may sue the drawers
upon it, although they have never received value for it. Suppose tlie bill had been
given to Coates & Co. for their accommodation, or a promissory note had been given
to them, made payable to the plaintiffs, in order that they, Coates & Co , might borrow
money ujion it, or hand it over to the payees in dlscliargc of a debt, surely tlic payees,
in eitiier ca.se, might sue upon the instrument, without proving the giving of value to
the drawer or maker. The want of sucii value could not be relied ujion as an answer
to the action, on iIk; ground of the contract between the inimediatc parties to the iiistra-
meiit bring nndniii jidctitm"

(ij) I'uget de Bras v. Forbes, 1 Esp. 1 17. The plaintiff in this case was a foreigner.

CH. VI.] CONSIDERATION. 183

him ill blank and delivered to C, and after passing througli sev-
eral hands comes into the possession of D, who receives it in
good faith and for a valnable consideration, and fills up the l)lank
indorsement directly to himself, and brings an action against the
maker ; it is no answer to this action to say, that the note was
made and delivered to B without consideration, and by him in-
dorsed without consideration. For although D appears on the
face of the note to be the immediate indorsee of B, and deduces
his title as such, he is not so in fact. (2;) So if A, for a valuable
consideration moving from C to him, should procure B to make
his note in favor of C, it should seem that it would be no answer
to an action by C against B, that the latter received no considera-
tion for making the note. (a) So if A, for a good consideration
moving from B to him, authorizes B to draw upon C to a certain
amount, on A's account, and B draws accordingly, and C accepts,
C will be as absolutely bound by his acceptance to B, the drawer,
as to any subsequent bona fide holder for value. (6)

A defendant may, in general, make the defence of a want of
consideration against a remote party, if he could have made it
against a nearer party, and the remote party took the paper from
the nearer party with a knowledge that it was open to this de-
fence. But a very important exception to this rule prevails in
the case of accommodation paper, (c) The plain reason of this

residing in Holland ; and, having a large sum of money in England in the funds, em-
ployed ihe house of Agassiz, Rougemont, «& Co. as his agents, to sell it out, and to
retnit it to him in hills on Holland. Agassiz, Kougcmont, & Co. applied to the defend-
ants for the purpose, and, on the seventeenth of Fehruary, 1792, got from them bills on
Holland, in favor of the plaintiff It was proved to be the custom of London, for per-
sons in the habit of remitting foreign bills, to give the bills on one day, but not to re-
ceive the money for them until the next post-day. In this case the next post-day was
Tuesday, the twenty-first. On Monday, the twentieth, the house of Agassiz, Rouge-
mont, & Co stopped payment, so that the defendants in fact had never received any
value for the bills which they had so drawn on Holland in favor of the plaintiff; and
they having ordered their correspondent abroad not to pay the hills when due, this
action was brought against them as drawers of the bill. Held, that the defendants
were not lialile. But see, as to this case, Poirier v. Morris, 2 Ellis & B. 89.

(z) Arhouin v. Anderson, 1 Q. B. 498.

(a Sec per ^^ikle, C. J., in Munroe v. Bordier, supra, p. 181, note x ; Horn v. Fuller,
6 N. H. ."ill ; Glascock 1;. Rand, 14 Misso. 550 But see Rogers v. Morton, 12 Wend.
484, 14 Wend. 575 ; Nelson v. Cowing, 6 Hill, 336.

(b) See Pilhins v. Van Mierop, 3 Burr. 1663.

(c) In Smith r. Knox, 3 Esp. 46, Lord Eldon said : " If a person gives a bill of ex-
ctiauge for a particular purpose, and that is known to the party who takes the bill ;

184 NOTES AND BILLS. [CH. Yl.

is, that the accommodation maker, acceptor, or indorser intends
to lend his credit, and does it as a favor to some party wlio pays
him nothing. This party, therefore, can never sne him, or if he
does, the want of consideration will be a perfect defence. But
if this accommodated party uses the credit he has borrowed by
selling the note or getting it discounted, the holder may say, " I
bought the note or discounted it for the very reason that 1 knew
you had lent your credit on it, and I took it on the faith of your
credit." We must, therefore, understand the legal definition of
an accommodation party to negotiable paper to be one who puts
his name there without any consideration, with the intention of
lending his credit to the accommodated party. It seenih that a
note intended by the maker as a gift to the payee would be gov-
erned by the same principles as an accommodation note. The
maker, as we have seen, would have a defence as against the
payee ; but he would have none, we think, as against a subse-
quent liolder for a valuable consideration, though such holder
received the note with knowledge of the circumstances under
which it was given.

The possession of a negotiable note is prima facie, evidence of
the right of the holder, and also of the fact that tiie holder gave
value for it.(c/) This latter question is often very imi)ortant.
The opinion seems to have prevailed at one time, that in an ac-
tion by an indorsee against a maker or against a remote indorser,
if tlie defendant could show that for any cause the action could

as, for example, if to answer a particular demand, then the party taking tlie hill cannot
apply it to a different purpose ; hut wliere a hill is given under no such rcstrii'tion, hut
given merely for the accommodation of the drawer or payee, and that is sent into the
world, it is no answer to an action hrought on that hill, that the defendant, the acceptor,
aece])ted it for the accommodation of tiie drawer, and that that fact was known to the
holder ; in such case the holder, if he gave a honajide consideration for it, is entitled to
i-ecover the amount, though he had full knowledge of the transaction." So in Brown
V. Mott, 7 Johns. 361, where a note was indorsed for the accommodation of the maker,
and without consideration, it was held, that tiie indorser was liahlc for the amount, after
ilue notice of non-payment, though the plaintiff knew at the time he took the note that
the indorser had received no consideration ; hut if there is fraud in the case, and that
known to the plaintiff, the indorser may show it in defence. So in (Irant v. ICllicott, 7
Wend 227, it was hdd, that it is no defence in an action on a hill of exchange hy the
payee against the acceptor, that the liiil was accepteil without consiihTation, or. in other
words, was an accommodation acceptance, and that fact known to the payee.

(d) llcCaskill V. Ilallard, 8 \\'u\\. 470; King v. Milsom, 2 Camp .5; Collins v. Ma»
tin, 1 B. & r. G48 ; Minell v. Keed, 26 Ala. 730. And sec the next note

CH. VI.] CONSIDERATION. 185

not have been maintained by the plaintiff's immediate indorser.
this would throw upon the plaintiff the burden of proving- that
he received the note for a valuable consideration. (e) But latterly
a distinction has been taken ; and it is now held that mere proof

(e) Heatli v. Sansoin, 2 B. & Ad. 291. In this case S., being indebted to a firm in
whieh he was partner, j^ave a note in the name of another firm to which lie also belonged,
in diseiiarge of his individual debt. The payees indorsed it over, and the indorsee
sued tlic parties who appeared to be makers. Jhld, that this note was made in fraud
of S.'s partner in the seeond firm, and could not he enforced against him by the
payees, and that, at least under these circumstances of suspicion, the indorsee could
not recover without proving that he took the note for value. Held also, Parke, J. dis-
senting, that in all cases where, from defect of consideration, the original payees can-
not recover on the note or l)ill, the indorsee, to maintain an action against the maker or
acceptor, must prove consideration given by himself or a prior indorsee. Lord Tenter-
dm said : " The question is, whether, in order to succeed in this action against the de-
fendant Evans, the jilaintitf was bound, under the circumstances of the case, to prove
a consideration for the indorsement. According to the more recent practice, I think it
was incumbent on him to do so ; and this is a stronger case than the ordinary one, in
which indorsees have been put to prove value given by reason of the circumstances
under which an acceptance or note was obtained, because liere the indorsee chooses to
bring his action against makers, who are unknown to him, rather than sue the indorsers,
whom he knows, and from whom he took the note." Litdtdule, J. : '' It has been fre-
quently held, that where a note or acceptance of a bill has been obtained by fraud, loss
out of the owner's hands, or duress, the indorsee is bound to show that he gave value,
and in some instances even that he became holder bona Jide, and not under circum-
stances of suspicion. It may be laid down as a general rule, that if the note or accept-
ance were taken under such circumstances that the indorser himself could not recover,
the indorsee must prove that he became so for a good consideration, though no notice
be given him to jjroduce such evidence. There is no more hardship in the necessity of
proving consideration here than in ordinary actions on simple contract, where the plain-
tifi^' must be prepared to show a consideration if necessary, though in the great majority
of instances no such necessity arises. It may be said, that the rule now laid down is
inconvenient, as restraining the negotiability of notes and bills; but this is fully coun-
terbalanced by the inconvenience which would arise on the other hand, if a party who
could not himself sue on a note or acceptance could put it into the hands of a third
person, and, in consequence of such transfer, the proof of value given should be dis-
pensed with. The present case is stronger than the ordinary one, of a bill accepted
for accommodation, because here some little susjjicion arises from the note being in-
dorsed over l)y the Droitwich Company, and the action then brought against the
maker." Parke, J. : " I am of the same opinion on the special circumstances of this
case ; but I have always under.-itood that an indorsement must be taken, prima facie, to
have been given for value, and that the proof, at least of circumstances tending to throw
suspicion on such indorsement, lies on the party disputing its validity before the in-
dorsee can be called upon to prove that he gave value for the bill. This doctrine
appears to me to be correctly laid down by Ei/re, C. J., in Collins v. Martin, 1 B. & P.
648. When the note or acceptance has been obtained by felony, by fraud, or by duress,
it has been usual to require jiroof of valuable consideration on the part of the indorsee;
and I do not dispute the jiropriety of that usage, as any one of those facts raises sorne
suspicion of the title of the holder. But I am by no means satisfied that the same rule
IG*

180 NOTES .\ND BILLS. [CH. TI

that tliere was no consideration for the note between the original
parties, as that it was an accommodation note, or was intended
aa a gift, or was given for a supposed balance due to the payee
when in fact there was no such balance due, or was given for
what the parties erroneously supposed to be a sufficient consid-
eration, will not make a prima facie case for the defendant. (/)

can be applied to all cases where an acceptance or note has been given without consid-
eration. I think tliis is a very important question. It is difficult to reconcile the recent
practice (for it is only recent) with principle ; for the simple fact of want of considera-
tion between the acceptor and drawer, or maker and payee, affords no inference that
the holder received the bill or note mala Jide, or without consideration. It is, besides,
a practice likely to produce great increase of expense, as, in every instance, a plaintiff,
who is indorsee, can hardly be safe, without being prepared to prove, as to some one at
least of the indorsements, that value was given for it ; and this inconvenience may out-
weigh that of casting upon the defendant the burden of making out a case of suspicion
against the indorsee, before proof or consideration can be required from him." Patte-
son, J. : " As at present advised, I think the general rule of practice on this subject has
been correctly stated, and that, where a note or acceptance has been given under such
circumstances that the original payee could not recover on it, the indorsee may fairly
be called upon to show how it came to his hands, and is not entitled to a previous
notice. And, therefore, independently of the circumstances of suspicion in this case, I
should think, upon the point of practice alone, this rule ought to be made absolute."
Prior to this decision, the rule was very uncertain. See Paterson v Ilardacre, 4 Taunt.
114; Duncan v. Scott, 1 Camp. 100; Rces v. Marquis of Ileadfort, 2 Camp. .574;
Reynolds v. Chettle, 2 Camp. 596 ; Lawson v. Weston, 4 Esp. .56; Thomas v. New-
ton, 2 C. & P. 606 ; Dolauncy v. Mitchell, 1 Stark. 439 ; Bassett v. Dodgiii, 10 Bing.
40; Mann t". Lent, Moody & M. 240, 10 B. & C 877 ; Humbert iv Huding, Chitty
on Bills, 9th cd., 651; Spooner i'. Gardiner, Ryan & M. 84; Browne i-. Murray,
Ryan & M. 254. And see the Reporter's note to this case. In the later case of Simp-
son V. Clarke, 2 Cromp. M. & R. 342, the question was much considered, and the
court were strongly inclined to agree with the opinion of the majority of the judges in
Heath v. Sansom.

(/) This rule was first laid down by Parke, J., in Heath i\ Sansom, supra. In
Whittakcr v. Edmunds, 1 Moody & R. 366, in an action by the third indorsee against
the acceptor of a bill of exchange, it was ruled at Nisi Priiis that the mere absence of
consideration for the acceptance and prior indorsements did not throw the omis upon
the plaintiff of proving the consideration of the indor.sement to him, where no circum-
stances of fraud or illigality ajjpeared. Pattcson, J. said : " I am of ojiinion that the
evidence proposed to be offered by the defendant will not nuikc? it necessary for tho
plaintiff to prove the consideration which he gave for the bill. Since the decision of
Heatii V. Sansom, the consideration of the judges has been a good deal called to tlio
subject; and the prevalent opinion amongst them is, that tlie courts have of late gono
too far in restricting the negotiability of bills and notes. If, indeed, the defendant can
show that there has been something of fraud in the previous stops of the transfer of the
instrument, that tlirows upon the plaintiff the necessity of showing under what circum-
stances lie became jjosses.sed of it. So far I accede to the case of Heath v. Sansom ;
for there were in that ca.xc circumstances raising a suspicion of fraud ; but if I add<'d,
on that occasion, tliat, even indeijcndently of these circumstances of suspicion, the holder

CII. VI.] CONSIDERATION. 187

The law will still presume that the plaintiff received the note for
value. The same rule prevails when the note was given origi-
nally for a good consideration, but which has since totally or par-

woiild liave been bound to show the consideration which he gave for the bill merely
because there was an absence of consideration as between the previous parties to the
bill, I r.m now decidedly of opinion that such a doctrine was incorrect." In Mills v.
Barber, 1 M. & W, 425, which was assumpsit by the indorsee against the acceptor of a
bill of exchange, the defendant pleaded that he accepted the bill for the accommodation
of tiie drawer, and that the drawer did not give, nor did the defendant receive, any
consideration for his accepting or paying the bill ; that the drawer indorsed the bill to
the plaintitf without any consideration, and that the plaintiff held the bill without con-
sideration. Keplication, that the drawer indorsed the bill to the plaintiff for a good
and valuable consideration. Iltlcl, that it was not incumbent on the plaintiff to begin
and prove, in the first instance, that he gave value for the bill ; but that the rule is
otherwise, wiiere the title of the holder is impeached on the ground of fraud, duress, or
that the bill has been lost or stolen. Lord Abirufer said: "No doubt the rule of law
is, that where a plaintiff has not given consideration for a bill of exchange, for which
uo consideration has been previously obtained, he cannot recover upon it. But the
doubt is as to which party is required to give evidence. Cases were cited to show the
practice to have been for the plaintiff to prove consideration given by him. I must
own, that, as far as my experience has gone, that was the course. I never have known
the point mooted except in certain cases. A practice had grown up of giving a notice
to the plaintiff calling upon him to prove consideration, and it was a very general
course, where such a notice had been given, for the plaintiff to do so in the first instance.
But I have known cases where the plaintiff has refused at first, and then, the defendant
having proved that the bill was an accommodation bill, the plaintiff' has in reply given
proof of his being a holder for value. The judges have taken this question into con-
sideration, it having become much more important to settle it, than the particular man-
ner in which it should be settled. The Court of King's Bench has been consulted;
and Littledale, J. and Patteson, J. have withdrawn the opinions which they expressed
in the case of Heath v. Sansom. In Simpson n. Clarke, undoubtedly, I stated what I
now state, that the practice was for the holder to prove that he gave value for the bill.
I cannot say that I have departed from that opinion witiiout some consideration of the
public convenience. In Simpson v. Clarke, I expressly stated that I did not decide the
case ujjon this point, and I said it was not intended to determine the question. It is
impossible to read my judgment in that case without perceiving that I abstained from
deciding it. I think I made a distinction between bills given for accommodation only,
and cases of fraud. There is, indeed, a substantial distinction between them, inasmuch
as in the former case it is to be presumed that money has been obtained upon the bill.
If a man comes into court without any suspicion of fraud, but only as the holder of an
accommodation bill, it may fairlj' be presumed that he is a holder for value. The
proof of its being an accommodation bill is no evidence of the want of consideration
in the holder. If the defendant says, I lent my name to the drawer for the purpose of
his raising money upon the bill, the probability is, that money was obtained upon the
bill. Unless, therefore, the bill be connected with some fraud, and a suspicion of a
fraud be raised from its being shown that something has been done with it of an illegal
nature, as that it has been clandestinely taken away, or has been lost or stolen, in which
cases the holder must sliow that he gave value for it, the onus prohandi is cast upon the
defendant. The decision of the present case requires only to lay down this rule, that,

188 NOTES AND BILLS. [CH. Yl.

tially failed. (^) But if the defendant can show that the note
was originally obtained by fraud or duress, or has been fraudu-
lently obtained from an intermediate holder, or has been lost or
stolen, or has been in any way the subject of fraud or felony, this
will throw the burden of proof upon the plaintiff. (A) In such

where there is no fraud, nor any suspicion of fraud, but the simple fact is, tiiat the de-
fendant received no consideration for his acceptance, the plaintiff is not called upon to
prove that he gave value for the bill. That seems to be the opinion generally prevail-
ing among the judges. In this case the onus jirohandi lay on the defendant, aiul he
ought to have gone further." See, to the same effect, Percival r. Frampton, 2 Cromp.
M.& R. 180 ; Low v Chifney, 1 Bing. N. C. 267 ; Ellicott v. Martin, 6 Md. .509 ; Mor-
ton V. Rogers, 14 Wend. .575 ; Knight v. Pugh, 4 Watts & S. 445 ; Fletcher v. Gushee,
32 ^Laine, 587 ; Ross v. Bedell, 5 Duer, 462. In this last case, Serg&wl, J. said : " In
cases other than those of negotiable notes obtained or put in circulation by fraud or
undue means, the maker, by its negotiable character, agrees that the payee shall put it
in circulation. He has no right, therefore, to com])lain of his own act ; and a holder,
placing confidence in such paper, ought not to be compelled to prove consideration. In
many cases it would be exceedingly difficult to do so, and to require it would throw a
serious impediment in the way of the circulation of negotiable paper. It is othcnvise
where there is fraud, because there the maker gives no such authority. He is in the
light of an unfortunate, rather than an imprudent man, and protection will be given to
him so f;ir as to require of the holder proof of a valuable consideration. The policy
of the law is to encourage the circulation of negotiable paper, and only intcifercs to
require extraordinary proof from the plaintiff in order to protect one who has been im-
posed upon in some way or other." But sec Marston v. Forward, 5 Ala. 347 ; Thomp-
son V. Armstrong, 7 Ala. 256; Boyd v. Mclvor, 11 Ala. 822. In Jacob r. Ilungate,
1 Moody & H. 445, it was held, that the fiict of a bill having been accejited to raise
money for the acceptor, and of the payee having appropriated tlie money so raised to
his own use, is not sufficient to call upon a subsequent indorsee to show that he gave
value for the bill. But sec this case explained in Smith r. Braine, 16 Q. B. 253.

{(l) Knight V. Pugh, 4 Watts & S. 445; Wilson v. Lazier, 11 Grat. 477.

(/() In Bailey v. Bidwell, 13 M. & W. 73, it was luld, that where, in an action on a
bill of exchange or promissory note, the defendant pleads that it was illegal in its in-
ce])tion, and that the jilaintiff took it without value, to which the plainliff replies de
injuria, tlic illegality bting proved, the onus is cast upon the plaintilf of proving that
he gave value. The same doctrine is declared in Smith r. Braine, 16 Q B. 244.
overruling Brown v. Philpot, 2 Moody & 11. 285. In Harvey v. Towers, 6 Exch.
656, in an action by indorsee a!.rainst acceptor of a l)ill of exchange, to which the
defendant pleaded that the bill was obtained by fraud, and that it was indorsed to
the ])laiiififf without consideration, and the jilaintiff replied dp liijioia ; it was firld,
that, altlioiigli the latter allegation was necessary to render the pica good, proof of
the fraiKl cast on the plaintiff the onus of proving c/)nsideratioii. Pollock. C. B. said :
"It is now settled, that if a bill be founded in illegality or fratid, or has been the sub-
ject of felony or fraud, upon that l)cing proved tlie holder is compelled to show tli.nt he
gave Viiluf fur it. That was established in Bailey v. Bidwell, and subsc(pieiitly, by the
Court of Queen's Bench, in Smith c. Braine, in a considered judgment." PlatI, B. :
" Bailey v. Bidwell and Smith r. Braine were the decisions of eight judges, that, if o
bill be once infected with fraud or illegality, the consideration becomes a subjectira:tt<'i

CH. VI.] CONSIDERATION. 189

cases the presumption is, that he who has been guilty will part
with the note for the purpose of enabling some third party to re-
cover upon it for his benefit ; and such presumption operates
against the holder, and it devolves upon him to show that he gave
value for it. So where the note was given for a distinctly illegal
consideration. (?■) But it has been recently held in England, that
this rule will not apply to a note given in payment of a bet ; for
that a bet, though void, and therefore no consideration, is not
illegal, so as to raise a presumption that the indorsement to the
plaintiff was without value. (7)

to be proved by the plaintiff. There is no hardship in such a rule, for the j)laintiff
must best know what consideration he gave for the bill ; and besides, he claims under
the party who committed the fraud." And see Berry v. Alderman, 14 C. B. 9.5;
Duncan v Scott, 1 Camp. 100 ; Catiin v. Hansen, 1 Duer, 309 ; Aldrich v. Warren,
16 Maine, 46.5; Perrin v. Noyes, 39 Maine, 384; Munroe v. Cooper, 5 Pick. 412;
Worcester County Bank v. Dorchester & Milton Bank, 10 Cush. 48S ; Holme r. Kar-
per, 5 Binn. 469 ; Beltzhoovcr v. Blackstock, 3 Watts, 20; Vathir v. Zane, 6 Grat. 24G.
But see Russel v. Ball, 2 Johns. 50 ; McLemorc v. Cannon, 9 La. Ann. 22 ; Matthews v.
Poythress, 4 Ga. 287, 305 ; Nicholson v. Patton, 13 La. 213 ; Sandford v. Norton, 14
Vt. 228; Bertrand v. Barkman, 8 Eng. Ark. 150; Wallace v. Branch Bank, 1 Ala.
565 ; Hutchinson v. Boggs, 28 Penn. State, 294 ; McKesson v. Stanberry, 3 Ohio State,
156. In New York, it is held that the holder of a note which has a fraudulent incep-
tion, or which is obtained from the payee by fraud, must prove that it was transferred
to him for value and before maturity, but he is not bound to prove in addition, that at
the time of the transfer he had no knowledge of the fraud, the burden of showing this
being on the defendant. Hart v. Potter, 4 Duer, 458 ; Ross r. Bedell, 5 Duer, 462. But
evidence of fraud is admissible, without an offer on the part of the defendant to prove
notice to the plaintiff, it being sufficient to cast upon the holder the burden of proving
that he gave a valuable consideration. New York and Virginia, &c. Bank v. Gibson,
5 Duer, 574 ; Tucker v. Morrill, 1 Allen, 528 ; Sistermans v. Field, 9 Gray, As

to what is a fraud in this respect, see Gray v. Bank of Kentucky, 29 Penn. State, 365.

(t) See Bailey v. Bidwell, supra; Edmunds i\ Groves, 2 M. & W. 642 ; Bingham v,
Stanley, 2 Q. B. 117. But see Wyatt v. Bulmer, 2 Esp. 538.

(j) Fitch V. Jones, 5 Ellis & B. 238, 32 Eng. L. & E. 134, Lord CamjMl said : " It
is clear that, when there is illegality or fraud shown in a previous holder, a presumption
that there is no consideration for the indorsements does arise ; for the ]ierson who is guilty
of illegality or fraud, and knows that he cannot sue himself, is likely to hand over the
instrument to some other person to sue for him It is not properly that the burden of
proof as to there being consideration is shifted, but that the defendant, on whom the
burden of proof that there was no consideration lies, lias, by proving fraud or illegality
in the former holder, raised a /)?•(»;« yi/cfV presumption that the plaintiff is agent for
that holder, and has, therefore, unless that presumption be rebutted, ])roved tliat there
was no consideration. But no such presum[)tion arises where tlicre was in the former
holder a mere want of consideration, without any illegality or fraud. The question,
therefore, comes to be, whether this note was given for a consideration merely equiva-
lent to no consideration, or whether the note was given in an illegal transaction. I
am of opinion that the note did not take its inception in illegality within the meaning

190 NOTES AND BILLS. [CH. VL

It is clear that an indorsee, without consideration, is subject to
the same defences as his immediate indorser. For example, if a
note is given for a patent right and tlie patent is declared void,
the promisor can defend against the promisee, on the ground of
failure of consideration. If the promisee indorsed it before ma-
turity, for value, to a holder without notice or knowledge, this
defence cannot be made. But if it be indorsed to the same in-
dorsee, not for value, it may be made. The reason is this : If
the transfer is made only as a pretence, and without actual
change of property, but merely to enable the payee to get indi-
rectly what he cannot get directly, then the indorsee is the mere
agent or trustee of the payee, and the payee is still tlie real pnrty
in interest. If, however, it is made in perfect good faith, both
parties believing the consideration sufficient and the note good,
and intending that the note shall become by the transfer the
property of the indorsee, it is then a gift, and nothing more.

of the rule. The note was given to secure payment of a wagering contract, which,
even before Stat. 8 & 9 Vict. c. 109, the law would not enforce : but it was not illegal ;
there is no penalty attached to such a wager ; it is not in violation of any statute nor
of the common law, but is simply void, so that the consideration was not an illegal
consideration, but equivalent in law to no consideration at all. Though it is said, in
Athcrfold r. Beard, 2 T. R. 610, that a wager as to the amount of hop duty is contrarj-
to public policy, it is not there meant that it was punishable, but merely that it was an
idle wager on a matter in which the parties had no concern, and the discussion of
which might prejudice others, like the wager on the sex of the Chevalier D'Eon (see
Da Costa v. Jones, 2 Cowp. 729), and therefore was a wager not enforceable by law,
though not a breach of any law. The note then being given, not on an illegal consid-
eration, but merely on a void consideration, the presumption which the i)hiiniitl' would
be called upon to rebut did not arise." Erie, J. : " It is clear that the geucral rule of
law is, that when a party to a negotiable instrument pleads a plea excusing him from
the fulfilment of the duty of paying according to the tenor of the instrument, the bur-
den of jiroving the plea lies on him. It is also clear, that, when the plea alleges that
the instrument had its inception in illegality or fraud, and that the plainfifl' took it
without value, proof that the instrument had its inception in illegality or fraud raises a
presumption that the plaintiff took it without value ; and so far shifts the burden of
proof, tliat, unless the plaintiff gives satisfactory evidence that there was consideration
for the instrument, the allegation in the pica that there was no consideration will bo
taken to be proved. The question in the ])resent case is, whether this note was brought
within the category of notes tainted wirh illegality within the meaning of (he rule. I
am of opinion that it was not. I think that the defendant might, witliout violating any
law, make a wager. If he lost, he might, without violating any law, jiay what he had
lost, or give a note for the amount. I am of opinion, therefore, that the proof in this
case had the same legal effect as if it had been proved that the defendant made Need-
ham a present of this note. It is not as if the note had been given for an illegal con-
sideration, or a fraudulent consideration, but the defendant is in the predicament of a
person who voluntarily, as far as law is concerned, gives a negotiable instrui,icnt '

CH. VI.] CONSIDERATION. 191

And a gift of negotiable paper, not being tbat use of the paper
for which the law supposes it intended, is not such a negotiation
of it as the law contemplates and protects. (A;) And if the donee
afterwards transfers it by indorsement for less tlian its value, or
a wholly inadequate consideration, but in good faith, his indorsee
can recover, we think, from a prior party, only what this indorsee
paid for it.(/)

In relation to gifts of negotiable paper, generally, supposing
thom to be in good faith, they are so far valid that tb.e donor can-
not recover them back from the donee ; neither can the donee re-
cover on them against the donor ; but he may recover against
prior parties having no defence against the donor. (y») A for-

(h) See cases supra,
■ [l) Nash V. Brown, Chitty on Bills, 74. In this case a hill of exchange was accepted
by the defendant as a present to the payee, who indorsed it to the plaintift" for a small
Bum advanced by him. And Lord Eilenboroufjh held, that the plaintiff was only entitled
to recover so much as he had actually advanced on the bill. So in Allaire v. Harts-
horne, 1 N, J. 665, it was held, that in an action on a note, which is invalid between the
original parties for want of consideration, by a bona fide holder who has advanced only
part of its value, such holder can only recover the amount which he has actually ad-
vanced. And see, to the same effect, Chicopee Bank v. Chapin, 8 Met. -10 ; Youngs v.
T^e, 18 Barb. 187 ; Simpson v. Clarke, 2 Cromp. M. & R. 342; Jones v. Hibbert, 2
Stark. 304 ; Wissen v. Roberts, 1 Esp. 261 ; Williams v. Smith, 2 Hill, 301 ; Petty v.
Hannum, 2 Humph. 102 ; Holeman v. Hobson, 8 Humph. 127 ; Bethune v. McCrary,
8 Ga. 114 ; Brown v. Mott, 7 Johns. 361.

(w) Thus, in Milnes v. Dawson, 5 Exch. 948, to an action by the indorsee against
the acceptor of a bill of exchange, the defendant pleaded, that the drawer indorsed the
bill to the plaintiff without value or consideration, and that the plaintiff always held
the same without value or consideration ; and that, after the liill became due, the drawer
accepted certain scrip certificates from the defendant, in full satisfaction and discharge
of the bill. Replication, that the bill was indorsed for a good and sufficient considera-
tion. Issue thereon. Held, after verdict, that the plea was bad, and that the plaintiff
was entitled to judgment non obstante veredicto. Parke, B. said : " It would he alto-
gether inconsistent with the negotiability of these instruments, to I;old that, after the
indorser has transferred the property in the instrument, he may, by receiving the amount
of it, affect the right of his indorsee. When the property in the bill is passed, the right
to sue upon the bill follows also. The question, whether Hanson could sue the plain-
tiff, we are not now called upon to determine. If it had been averred that the plaintiff
held the bill as his agent, I should not have much difficulty in saying that the action
would lie. A bill of exchange is a chattel, and the gift is complete by delivery coujiled
with the intention to give. If the question as to the rights between donor and donee
were now discussed, with reference to the state of the la\\"-pn the subject as it stood
towards the close of the last century, we might hold otherwise than we now do. It has
been said, that the donee of a bill of exchange cannot sue the donor upon it, as the
donor may well allege that the donee did not give any consideration for it. See
HoUiday v. Atkinson, 5 B. & C. 501, and Mr. Chitty's work on Bills of Exchange,
where the cases are to be found collected at p. 74. And, therefore, it may be said that,

li'2 NOTES AND BILLS. [CH. \1.

tiori, an indorsee who lias paid only a partial consideration may
recover the whole amount of the note against all prior parties,
who have no defence against his immediate indorser.(«)

If the paper given be not negotiable, the donee may sue, but
in the name of the donor. Then, if the donor attempted to de-
feat the suit by recalling his gift or denying his authority to sue,
we think he would not be permitted to do so. And if the de-
fendant interposed a set-off or other defence resting on equities
which grew up between him and the donor after he had notice
of the gift, we think that this would not be allowed. AVe rest
both of these opinions on the general ground that the donor has
effectually parted with his rights to the donee, although he has
not laid himself under any enforceable obligation.

When the suit is between any immediate parties, the only con-
sideration which conies into question is that which passed, or
should have passed, between the plaintiff and defendant. But it
is otherwise when the suit is brought against a party who is re-
mote from the plahitiff. Here the defendant must Ijegin his de-
fence, Ity showing that no consideration was paid to him, or that
it failed, or that he is an accommodation party. If he fails in
this, he can go no further as to an inquiry into the consideration,
liecause he certainly owes some one, and if tlie plaintiff is holder

if this bill was a <^ift from Hanson, the plaintiff could not have sued him upon it ; but
still Hanson transferred all his rights to the plaintiff ; and how, therefore, can it bo
contended that a payment to the donor is to be taken as a satisfaction of a bill in the
hands of the donee"? The learned counsel contends, that it is to be presumed that the
indorsement took j)lace after the bill had become due and payable. But we are not at
liberty to draw any such inference; and it is perfectly consistent with everything that
is stated in this plea, that the full title in the bill was transferred to the plaintiff. If
the plea had alleged that the plaintiff held the bill as Hanson's agent, merely for the
purpose of receiving the money for him, then a payment to cither jiarty woidd have
been a good discharge of the i)arty liable upon the bill, and the plea would have been
good ; but in truth the ])lea does not contain any such averment, and consequently it
cannot be sustained." Alderson, B. : "I am of the same opinion. It is not necessary
to say whetlier Hanson could maintain an action for t]ie recovery of this amount from
the plaintiff. But by the indorsement he has transferred to the plaintiff all the rights
which, before the indorsement, he had of suing upon the bill. If, therefore, lie has
parted with all his rights, and that of suing on the bill, and the jjlaintiff has them, how
is it possilile to say, that a payment to Hanson, who has not the bill, is a due payment
to the plaintiff, who has it? " And sec Easton v. Pratehett, 1 Cromp. M. & R. 798,
2 Cromp. M. & R. .542.

(n) Reid v. Furnival, 5 C. & T. 499 ; Johnson v. Kcnnion, 2 Wilson, 262; Tarboll
i». Sturtcvaiit, 26 Vt. 513; Moore v. Candell, 11 Misso. 614; Tunieri!. Brown. 3
Smcdcs & M. 425.

CII. VI.] CONSIDERATION. ld?>

of the note, it is of no cDiiseiiuoiicc to the defendant what s'alue
or whether any value at all was giv(Mi for it. lint if he sueceeds
in this, one half, and no more, of his defence is made out. For
now he must go on and show that tlie holder (if he took the note
or hill l)efore maturity) to(jk it without consideration ; hecause,
if eitlier of these considerations e.\ist, the defendant is lial)le.(o)
The case inay he one, as we have seen, in which the defendant,
after proving /its want of consideration, may put tiie plaintitf to
the proof of his; hut the rule, that hoth considerations must fail,
or, in other words, that either of them will sustain the plaintiff's
case, still applies. (/>)

Bills and notes almost always contain the words " value re-
ceived," and it was formerly thought necessary to insert them,
and that an instrument without them would not he a bill of ex-
change. But it has long l)een settled that they are immaterial.
A consideration is equally presumed to exist, without them or
with them.(r/)

The words " value received" are ambiguous, where the bill is
drawn payable to a third person ; for they may mean value
received by the drawer of the payee, or by the acceptor of the
drawer. But the first is the more probable interpretation ; for it
is more natural " that the party who draws the bill should inform
the drawee of a fact which he does not know, than of one of
which he must be well aware." (r)

If, however, the bill is drawn payable to the drawer's own
order, the words " value received " must mean received by the
acceptor of the drawer ; and on such a bill, if the declaration

(o) Bosanquet v. Corser, 9 C. & P. 66, 8 M. & W. 142 ; Bosanquet v. Forster, 9
C. & P. 659.

(p) Sec cases supra, p. 188, note h.

(q) White v. Lcdwick, 4 Doug. 247, Bayley on Bills, 2d Am. ed., p. 33, note 83.
Ashhurst, J. said : " The words ' value received ' are only inserted ex majori cautela, in
order tlwt the payee may be able to recover upon it in an action for money lent, or
money had and received, in case the instrument should be defective in other respects as
a bill of exchange." But in Townsend v. Derby, 3 Met. 363, it was held, that a note,
though it does not purport to be for value received, is admissible in evidence to sup-
port a count for money had and received of the payee by the maker. So in Hatch v.
Trayes, 11 A. & E. 702, it was held, that debt was maintainable on a promissory note,
by payee against maker, though the instrument did not express that it was for value
•eceived, or for any consideration. See further, Hubble r. Fogartie, 3 Rich. 413 ; Ken-
iiall V. Galvin, 15 Maine, 131.

(r) Per Lord EUenborough in Grant i;. Da Costa, 3 Maule & S. 351.

Vol. I.— N

194 NOTES AND BILLS. [CH. VL

state that it was for value received by the drawer, it will be a
variance. (s) "Value received," in a promissory note, means
received by the maker of the payee. {<)

It is now well settled, that any statement in a bill or note
respecting the consideration may be explained or contradicted by
parol evidence. It may be shown, notwithstanding any such
statement, either that there was no consideration at all, or that
the consideration was different from that stated. (»)

(s) Highmore v. Primrose, 5 Maule & S. 65 ; Priddy v. Henbrey, 1 B. & C. 674.

(0 Clayton v. Gosling, 5 B. & C. 361.

(u) Thus, in Abbott v. Hendricks, 1 Man. & G. 791, in an action on a promissory
note, in which the consideration was expressed to be " for commission due to the plain-
tiff for business transacted for the defendant," the defendant pleaded that the real con-
Bidcration for the note was services to be thereafter rendered by the plaintiff, which had
never been performed. The plaintiff replied de injuria. Held, that evidence in sup-
port of this plea was admissible, and ought to have been received by the judge at the
trial Tindal, C. J. said : "I have always understood the law to be, that where an
action is brought on a promissory note by the payee against the maker, the defendant
may show either that there was no consideration for the note, or that the consideration
has failed. Here, the defendant sought to set up the latter ground of defence ; and
Foster v. Jolly, 1 Cromp. M. & R. 703, is a sufficient authority that the evidence for
th.at purpose ought to have been received. All the cases cited on the part of the plain-
tiff have been to the point, that, where a promissory note or bill of exchange has been
given, the defendant is not at liberty to set up a different contract from that expressed
in the instrument ; that is to say, where the contract on the face of a note is absolute,
the defendant will not be permitted to prove that it was contingent; if ]iayable at a
certain time, that period cannot be varied ; and where the note is in terms joint, evi-
dence will not be allowed to be given that one of the parties was merely a surety. The
distinction seems to be this : You may show, either that there was no consideration for
the contract, or that it has failed ; but you cannot set up a different contract, for that
is contrary to the general principles of the law. As a defendant may prove, where
'value received ' is expressed in a note, that there was no consideration, so where a
special consideration is stated, I think he is at liberty to show that it has failed." Bo-
santjiiet, J. : "I am of opinion that the evidence tendered was not rendered inadmissible
by reason of the statement contained in the note. It is true, that the terms of a contract
cannot be varied by a parol agreement; but the want of a consideration, or the illegality
of the consideration, is a good defence in an action on a promissory note. Although a
note is expressed to be given for a good consideration, it maybe shown, either that
there was no consideration, or that the consideration was illegal. If it were competent
to parties to exclude sucli evidence, it would be contrary to every principle of justice.
It is the constant practice to admit it ; and yet I do not see why it ought not to be
excluded, if the statement contained in the present note is to shut out the evidence
tendered at the trial." Coltman, J. : "I have always understood the rule to be, that
although you cannot vary the terms of a note by parol evidence, you may give evidence
to show cither tlnit it was originally made without consideration, or that the considera-
tion has failed. This is fully borne out by the authorities that have been cited. With
respect to tJie cases referred to on the part of the plaintiff, they are distinguishable on
the ground that in those cases the evidence sought to be introduced did not refer to the

CH. VI.] CONSIDERATION. 195

A. debt from a third person is, in general, a good consideration
for a note.(y) It certainly would be so, if a delay in calling in
the debt entered expressly into the bargain. Perhaps, if the
debt were payable at once, and the note payable at a future day,
or if both were payable in future and the note on the longest time,
such agreement for delay would be implied. If the original debt,
from the third person, were payable only when the note was pay-
able, wliether at once or in future, there might be a want of con-
sideration, unless credit for the original debt had been given on
the promise of this note, which certainly would be sufficient. (i(7)

consideration, but went to vary the terms of the contract. It seems to me that there
was a miscarriage in tliis case, in not admitting tlie evidence offered at the trial."
Mania, J. : "I also think that the evidence in question ought to have been received.
That evidence was tendered to show that the note was given for services to be after-
wards rendered, and that they had never been performed, and it was rejected on the
authority of Adams v. Wordley, 1 M. & W. .374. The cases show, that, although a
consideration is stated in the note, you may prove that it was given for a different con-
sideration, or without any consideration at all. The court is not called upon to say
whether the plea is good. It does not state that the services were to be rendered within
a reasonable time; but at present no point arises upon it." And see, to the same effect.
Barker v. Prentiss, 6 Mass. 430; Matlock v. Livingston, 9 Smedes & M. 489 ; Simon-
ton V. Steele, I Ala. 357 ; Litchfield v. Falconer, 2 Ala. 280 ; Smith v. Brooks, IS Ga.
440. Some of the dicta in Ridout v. Bristow, 1 Cromp. & J. 231, must be regarded as
overruled.

(v) roplewcU V. Wilson, 1 Stra. 264 ; Coombs v. Ingram, 4 D. & R. 211 ; Burkitt v.
Ransom, 2 Collyer, 39.5. In Mansfield v. Corbin, 2 Cush. 151, on the trial of an action
by the promisee against the maker of a promissory note, which had been given for a
debt of the defendant's son, who, at the time of giving the same, was of full age, the
jury were instructed that the note was without consideration, unless it was given with
the knowledge or at the request of the son, or unless, when it was given, the plaintiff
did in fiict discharge the debt due to him from the son ; it was held, that these in-
structions were insuflScient, inasmuch as they precluded the jury from considering all
evidence of any other ground of consideration for the note. Wilde, J. said : " These
instructions excluded from the consideration of the jury any evidence of a discharge of
the debt afterwards, or of a promise to discharge it, or of a promise to delay to prose-
cute, or an actual delay; either of which, if proved, would be a sufBcient consideration.
Indeed, the slightest consideration would be sufficient."

(w) In Childs v. Monins, 2 Brod. & B. 460, it was held, that a promissory note, by
which the makers, as executors, jointly and severally, promised to pay on demand with
interest, rendered them personally liable. Dallas, C. J. said : " They promise abso-
lutely, and, further, add an engagement to pay interest ; when, therefore, by the engage-
ment to pay interest, they have induced the plaintiff to suspend his clear and admitted

de.Tiand, by so doing they make the promise personal and individual If executors

were not liable on such a promise, they would be enabled, by making such a promise,
to defraud any individual among their testator's creditors. This, too, is a promise
which, from the circumstance of interest being added, neeessarilj^ imports a payment
at a future day, and an executor promising to pay a debt at a future day makes the

196 NOTES AND BILLS. [CH. VI.

So if the note is received in absolute payment and discharge of
the debt of the third person, there is undoubtedly a sufficient
consideration ; and in Massachusettts and Maine it will be pre-
sumed to have been so received, in the absence of evidence to the
contrary. (.X-) If the original debtor were dead, the debt would
still be a good consideration if he liad personal representatives,
and the debt were provable against the estate. If it were other-
wise, the sufficiency of the consideration might be doubted. (y/)

Compromises of uncertain or conflicting rights constitute a
valid consideration. The law favors these, and will not inquire
into the question compromised, or the relative force or value of
rights, if there be only an actiuil and honest compromise of
what are supposed to be valid claims. (c) But it must not be the
abandonment of a suit (as for any offence) of which public
policy requires tlie prosecution, although a civil action for an
injury may be lawfully compromised. (a) Thus, a note in consid-
eration of a release of damages for slander is valid, although the
words spoken are not actionable. (6) A mere mistake of the law
will not impeach a compromise ; (6') but it will be strictly exam-
ined, if between parties who have stood in a fiduciary relation,
as guardian and ward, trustee and crstui que trusty or, pei-haps,
insured and insurer, (c/) Whether agreements to compromise,
not yet carried into effect, are binding, may not be quite settled.
In England it may certainly be doubted ; (e) but we incline to

debt his own." In Crofts v. Beale, 11 C. B. 172, in assumpsit by payee against
maker, on a promissory note payable on demand witii interest, the defendant pleaded,
that the note was made by the defendant as a collateral security for a debt due from
one J. S. to the plaintiff; that the defendant was not, at the time of making the note,
or ever, liable to pay the debt, or to give the note as a security for the same ; and that
there never was any other consideration for the making of the note, save as aforesaid.
Held a sufficient plea of no consideration, after verdict. See also, Sison v. Kidman,
3 Man. & G 810, 11 L. J., C. P., N. S. 100, commented on in Crofts v. Beale, snimt.

{x) Thachcr i;. Dinsmore, 5 Mass. 299. See post, chapter on Payment by Note or Bill.

(y) Sec Serlc v. Waterworth, 4 M. & W. 9 ; 8. c- nom. Nelson v. Serle, 4 M. & W.
79.") ; Jones v. Ashburnham, 4 East, 455.

(z) Longridge v. Dorville, 5 B. & Aid. 117; Russell v. Cook, 3 Hill, 504 ; Stewart
V. Ahrenfeldt, 4 Denio, 189.

(n) Kuir v. Leeman, 9 Q. B. 371 ; Coppock v. Bower, 4 M. & W. 3G1 ; Gardner n
Maxey,9 B. Mon. 90 ; Clark v. Bicker, 14 N. II. 44 ; Walbridge i;. Arnold, 2\ Conn. 4:i4.

(6) (J'Keson i.-. Barclay, 2 Penn. .531.

(rf) Pickering r. Pickering, 2 Beav. 31. ,

(e) See Bridgman v. Dean, 7 E.xch. 199, 8 Eng. L. & Eq. 534

CH VT.] CONSIDERATION. 197

think that such bargains, made in good faith, would be held in
this country to create a mutual obligation.

If a note be left with arbitrators for tlicm to decide upon, an(?
they indorse a certain amount, leaAing the balance payable, and
do this by way of award, this note is held for consideration, and
the indorsement is valid. (/) So a note in satisfaction of a breach
of covenant, although no release is made, is valid, because the
note has the effect of a release, substantially. (,!,'■) And where
there is a hiring to service for a year, and the servant leaves
without cause, and the master gives a note for the time he has
served, this is a sufficient consideration ; because the master may
waive his right founded on the entirety of the contract, if lie
chooses to do so. (A) An agreement to reconvey, for a certain
price, real estate held in fee under a foreclosure of a mortgage,
to secure a debt of less amount tlian the value of the estate, is a
sufficient consideration, although purporting to be made by two
partners, and executed by one only, for a contemporaneous agree-
ment to give a promissory note of a larger amount ; and an ac-
tion may be maintained to recover the full amount of a note so
given, (i)

Love and affection alone are not a valid consideration for a
promise or a note ; not even from parent to child, or from child
to parent ; nor by a parent for his child, nor by a child for a pa-
rent ; nor by a father and husband for his wife and children ;
unless there be something in the relation or the circumstances
which creates a legal obligation. (7) Nor is a mere expectation of
marriage ; nor, indeed, any mere expectation without right ; and
on this ground it has been held, that the rendering of future ser-
vices Vjy the payee is not a good consideration for a promissory
note, unless there is a binding contract for these services. (A;)
Nor is submission to arbitration by a married woman, without
the husband's consent. (/) Nor is the promise of one to pay gen-

(/) Sliepharcl v. Watrous, 3 Caincs, 166 ; Schoonmaker v. Roosa, 17 Johns. 301.

[g] Moody v. Leavitt, 2 N. H. 171.

(/() Thorpe V. White, 13 Johns. 53.

(i) Myers v. Phillips, 7 Gray, 508.

(j) Holliday v. Atkinson, 5 B. & C. 501 ; Pennington v. Gittings, 2 Gill & J,
208 ; Van Dcrveer v. Wright, 6 Barb. 547 ; Parker v. Carter, 4 Munf. 273 ; Smith v.
Ivittridge, 21 Vt. 238. See supra, p. 178, note.

(k) IIulser*Hiilse, 17 C B. 711.

[I) Ramsey v. Leek, 5 W^end. 20.
17*

10 S NOTES AND BILLS. [CH. ^^.

erally, who is bound to pay only in an especial and representative
capacity, binding, unless some new consideration intervene. (??i)
But a note by an administratrix, for " value received by my late
husband," was held to imply and purport a consideration. («)
And although a contract may be void, or voidable, by the Statute
of Frauds, a note given in pursuance of it will be valid. (o)

Forbearance of a debt, or any delay in enforcing or prosecut-
ing any legal or equitable proceedings for any legal or equitable
right, is a good consideration. (7?) The delay or forbearance
may be long or short, provided it is real. It need not be ade-
quate., but must be actual and honest, (^) It may be the for-
bearance of a debt due from him who makes or transfers the
note, or of the debt of another at his request ; and it need not
even be at the instance of tlie person liable to be sued.(r) It
may be for a time certain, or for a reasonable time ; or it may be
general in its terms ; and if for a reasonable time, the actual
time should be alleged, and the court will determine whether it
be reasonable. (5) If general in its terms, it will be deemed per-
petual ; and a suit at any time is a violation of the promise. (^)

It may be a cause of action which is yet to arise. (m) It
must, however, be a claim or right which has some foundation
in law. Thus, no valid consideration is created by forbearance
to sue a note given by one insane or otherwise disabled, as by
infancy or marriage ; or by forbearance of a debt discharged by
law, as if an obligor whose joint obligor has been released ; or
by forbearance to prosecute or insist upon illegal process ; or
where there are no parties lial)le to bo sucd.(y) If, however,

(m) Ten Eyek v. Vanderpocl, 8 Joliiis. 120; Sclioonmakcr v. Koosa, I" Johns.
301 ; Bank of Troy v. Topping, 9 Wend. 273. But sec Cliilds v. Monins, 2 Brod. &
B. 4G0.

()>) Ridout !;. Bristow, 1 Cromp. & J. 231.

(o) Jones I'. Jones, 6 M. & W. 84. And sec Abcll v. Douglass, 4 Dcnio, 305.

(p) Sec 1 Parsons on Cont. 365.

(q) Jcnnison v. StafTbrd, 1 Cush. 168 ; Giles v. Acklcs, 9 Pcnn. State, 147 : Silvis v.
Ely, 3 Watts & S 420.

(r) Sec cases in preceding note.

(s) Lonsdale v. Brown, 4 Wash. C. C. 148 ; Sidwcll v. Evans, 1 Pcnn. 385 ; Down-
ing V. Funk, 5 Rawlc, 69 ; King v. Upton, 4 Grcenl. 387.

(0 Clark V. RusscI, 3 Watts, 213 ; Sidwcll v. Evans, 1 Pcnn. 385.

(u) Ilamakcr v. Ebcrley, 2 Binn. 50G.

(>••) Newell V. Fi.sher, 11 S. & M. 431 ; Herring v. Dorcll, 8 Dowl. 604; Conimon-
wealth I'. Johnson, 3 Cush. 454 ; Wade v. Simeon, 2 C B. 548.

CH. VI.] CONSIDERATION. - 199

there be an actual uncertainty or honest doubt as to the validity
of the claim foi'borne, this seems to be enough to make the con
sideration good.(?^) But no forbearance is a valid consideration,
unless the promise to forbear, and tlie promise founded upoi.
this, are mutually binding, giving a right of action on the breach
of either. (.f)

If a note is put in suit, which the maker gave to the payee at
the request of a third person, the payee need not show that any
consideration existed as between the maker and the party at
wliose request the note was given. (//)

Cross notes are a good consideration for each other ; a prom-
ise being a valid consideration for a promise. (c) So is a fluc-
tuating balance ; and where acceptances were lodged with a
l)anker as collateral security, it was held, that whenever the
balance was in favor of the banker, he held those acceptances
for value. (a) So is a judgment debt ; for if a note be given,
it either satisfies the judgment, or is and imports an agreement
to delay enforcing it. (6) But if the judgment have been pre-

{w) Longridgc v. Dorville, 5 B. & Aid. 117 ; Zanc v. Zane, 6 Munf. 406 ; Blake v.
Peck, 11 Vt. 483 ; Tniett v. Chaplin, 4 Hawks, 178.

(x) Cobb V. Paoe, 17 Tenn. State, 469.

iy) Horn v. Fuller, 6 N. H. 511 ; Mercer V.Lancaster, 5 Penn. State, 160. And see
supra, p. 183, note a.

(z) Thus, in Rolfe v. Caslon, 2 H. Bl. .570, A drew a bill of exchange on B, payable
to tlie order of A, which B accepted, and B drew a bill on A payable to the order of B,
which A accepted, for their mutual accommodation. Both bills were payable at the
same time, iiad the same dates, and contained the same sums. Held, tliat tlie two bills
were mutual engagements, constituting on each part a debt, the one being a considera-
tion for tlie other; that neither was given as an indemnity, which was in its nature con-
diticnal, but created an absolute debt from the beginning; so that if either party be-
came bankrupt, the bill accepted by iiim might be proved under the commission, and,
consequently, to an action brought on it his bankruptcy might be pleaded. And see
to the same effect, Cowley v. Dunlop, 7 T. R. 565 ; Buckler v. Buttivant, 3 East, 72 ;
Dockray v. Dunn, 37 Maine, 442 ; Dowe v. Schutt, 2 Denio, 621 ; Cushing v. Gore, 15
Mass. 69 ; Eaton v. Carey, 10 Pick. 211 ; Higginson v. Gray, 6 Met. 212 ; Whitticr v.
Eager, 1 Allen, 499. In Burdon v. Benton, 9 Q. B. 843, in an action by drawer
against acceptor of a bill of exchange, it was held, that a plea that defendant accepted
merely for plaintiff's accommodation, and tliat plaintiff did not, at any time, give any
value or consideration for the acceptance, failed, if it appeared that, after the bill was
accepted (as alleged) for accommodation, the plaintiff gave a cross acceptance and was
obliged to pay the amount, and that the bill accepted by the defendant was due ar.d
unpaid at the time of the action brought. See further, Greenwood v. Pattison, 7 La.
Ann. 197; Shannon r. Langhorn, 9 La. Ann. 526.

(a) Bosanquet v. Dudrnan, 1 Stark. 1 ; Bolland v. Bygrave, Ryan & M. 271.

(6) Baker v. Walker, 14 M. & W. 465.

200 NOTES AND BILLS. [CH. VL

viously satisfied in any way, or set aside, or avoided, it is no
consideration, (6") -»

If a note given as an apprentice fee be sued, it is no answer
that the misconduct of the master had terminated the apprentice-
ship, unless the note was on condition that the apprenticeship
should conthiue for a certain time, and it ended sooner.(<;/)
Generally, if a note be given for a promise, or a contract, of
which performance can be enforced, a refusal to perform it is no
defence to an action on the note. The defendant's remedy is by
compelling performance of the promise for which the note was
given. (e) The discharge, by a mother of an illegitimate child,
of a prosecution brought by her agahist the putative father, is
not only a valid consideration, but it is no defence that a prose-
cution was carried on by the overseers, and a decree for main-
tenance obtained. (/) If a note be given for a lottery-ticket,
which is said and believed to have drawn a prize, it is no defence
that it in fact drew a blank. (i>)

If a note be given for a consideration passing between one of
the parties to the note and a third person, and the payee sue tlie
maker, it seems to be held immaterial in that action whether this
consideration, as affecting the third party, has failed or not.(/t)

It has been held, and we think rightly, that if one gives a note
in fraud of his creditors, and the payee knows it, if the payee
sues the note, the fraud may bo given in defence. (/) For the
parties are in pari delicto ; and neither can found a claim upon
it. If money had been paid, it could not be recovered l)ack ;
))ut if, instead of money, a promise is made, in writing or by
words only, tliat promise cannot be enforced.

If a copartnership note be given to a partner for a balance due
him, and he indorse it over, it is no defence to an action by the
indorsee, that the plaintiff knew between what parties and for
what consideration it was given. (/) So, if a bill be drawn by

(d) r.iatit V. Welcliinan, IG East, 207.

('-) -Mo^'Kii'l^i' V. Jones, 14 Knst, 480 ; Frelif;!! v. Plntt, .5 Cowen, 494.
(/■) Iliivcn V. II(jl)I)s, 1 Vt. 238; Kiiij,rlit v. Priest, 2 Vt. 507.
(v) IJiiiiiiiin V. Uarniiin, 8 Conn. 469.

(A) Tarsons i-. Gaylord, 3 Jolins. 463 ; Nirkerson i'. Howard, 19 Jolins. 113; liangci
V. Cleveland, 10 Mass. 41.'>.

(/) Wearsc v. Ptirce, 24 Pick. 141.

(j) Smith V. Lusiier, 5 Cowcn, 688. And sec ante, p. 137, note z.

CH. VI.] CONSIDERATION. 201

one partner and accepted, and it has the same effect upon a debt
between the copartnership and the acceptor as if drawn by the
firm, the acceptor is bound. (A:) And if a firm be dissolved, and
the copartners agree that one of them sliall receive all the debts,
and another of them draws a bill upon a debtor of the firm.
wliich is accepted, the stipulation in the deed of dissolution is no
defence to an action against the acceptor. (/) But the partner
who drew must account with the partner who alone had, by the
stipulation, a right to draw.(m) And generally, if one partner
give another a note, a court of law will not investigate the
accounts to ascertain whether the balance was due the payee ;
for the only remedy is in the equity jurisdiction over cases of
partnership. (/i) But if a member of a corporation, with no new
consideration, give his note for a debt of the corporation, payable
at a future day, the note is but a promise to pay tlic debt of
another, without consideration. (o)

If an indorser make an express promise to the maker to take
up the note, it is said that " there is no question," but this is a
valid consideration for a note to the indorser. (/*) The case in
which this langnage is used does not require, nor perliaps justify,
so broad a statement ; and, as a general rule, we think it open
to some doubt or qualification.

If one gives a note for a certain sum, under a mistaken belief
that he is liable to the payee to that amount, the note is without
consideration ; although the mistake arose from a misapprehen-
sion of the law, and not from an ignorance of facts ; the maxim,
ig-iiorantia juris nan excusat, not being applicable to such a
case. (7) A fortiori, a note given by a party in satisfaction of a
liability from which he was discharged, in ignorance of the facts

(k) Thus, in Tomlin v. Lawrence, 3 Moore & P. 555, the defendant havinj: accepted
a bill of exchange drawn on him hy one of two partners, in his own name, for a debt
due to botli ; it was held, that tlie defendant was liable in an action at the suit of an
indorsee, as the defendant could not bo sued for the debt due from him to the partners,
until the bill of cxcbanjre was due and dishonored.

(/) King V Smith, 4 C. & P. 108.

(m) King v. Smith, supra.

(n) Kogcrs v Kogcrs, 1 Hall, 391.

(o) Rogers v. Waters. 2 Gill & J. 64.

ip) Gushing v. Gore, 15 Mass. 69.

(7) Southall V. Rigg. 11 C. B. 481. Jervls, C. J. said: "Want of consideration is
ftltogctlier independent of knowledge either of the fiicts or the law."

202 NOTES AND BILLS. [CH. VL

which constituted such discharge, cannot be enforced against
him, though he may have had the means of knowing those
facts. (/•)

If a corporation, required by law to invest its capital in a cer-
tain way, takes a note from a shareholder as a part of his stock,
to a suit thereon he cannot object that such investment of the
capital was not warranted by law. (5) Whether a subscription of
money to create or increase the funds or capital is binding or
not, must depend upon general considerations, which it would
be out of place to present here. If they were binding, a note for
the amount would certainly rest on a valid foundation ; but we
do not think that a note would make them so, or that the note
should be recoverable between the parties, if the simple subscrip-
tion were not ; although it has been held otherwise. (^) If the
subscription or the promise or note were made to persons who
had no legal right to receive the money and apply it to that pur-
pose, it seems quite clear that the note would not be valid. («/)

The prevailing rule in this country on this subject may be
stated thus : If notes are given by one or more persons to any
corporation or other legal person, or any trustees, by way of vol-
untary sul)scription, to raise a fund or promote an object, these
notes arc open to the defence of a want of consideration, unless
the payee has expended money, or entered into engagements,
which, by a legal necessity, must cause loss or injury to the
payee if the notes are not paid. And the mere expectations of
the payee would not be enough ; nor the plans and purposes of
the payee, if they have not led to actual obligation. (y) If sun-
dry subscribers give their notes in such shape that they may be
ti'eated as given by each one to the rest, then, according to one

(r) Therefore, wlicrc a bill of exchange, indorsed by A for the accommodation of tho
drawer, was afterwards altered in a material point, with tho consent of the drawer, and
wlien the hill was at maturity, B, the then holder, made a demand npon A, who, igno-
rant of the alteration, though he had am])lc means of knowing it, gave B a jM-omissory
note for the amount of the bill and expenses, it was held, that it was a good di'fen'?c tc
an action on the note by B, that, at the tiine A gave it, he was not in fact awar»i of
the alteration in the bill. Bell v. Gardiner, 4 Man. & G. U. And see Bullock i- Og
burn, l.T Ala .34f>; Mercer v Clark, 3 Bibb, 224.

(s) Little V Obrien, 9 Mas.s. 42.3.

(0 See Fisher v. Kllis, .3 Pick. .322; Amherst Academy v. Cowls, 6 Pick. 427

(u) Boutcll »'. Cowdin, 9 Mass. 2.54.

(«;) See 1 Parsons on Cont. 377, et seq.

Cir. VI.] FAILURE OF CONSIDERATION. 203

authoritative decision at least, the notes of the rest would bo a
valid consideration for the note of each subscriber. (w)

SECTION II.

OF FAILURE OF CONSIDERATION.

The entire failure of consideration, after a note is given, is as
complete a defence as an original absence of all consideration. (:«)
And a partial failure is, under certain circumstances, a partial
and proportional defence. (y) We must, however, discriminate
between a failure of consideration and a failure of benefit result-
ing from it. A promises B to do a certain thing, and B makes
his note to A in consideration of this promise. Then A fails en-
tirely to perform his promise, but sues B on his note. If B retains
A's promise, or if the contract is such that A is always and per-
manently lield on his promise, B cannot defend against the note
on the ground of a failure of consi deration. (s:) But if B cancels

(lu) George v. Harris, 4 N. H. 533.

(x) See Jackson v. Warwick, 7 T. R. 121 (and compare it with Grant v. Welchman,
16 East, 207) ; Mann v. Lent, 10 B. & C. 877 ; Cuff v. Brown, 5 Price, 297 ; Knowles
V. Parker, 7 Met. 30.

(y) Sec iti/ra.

(z) In Spillcr i-. Westlake, 2 B. & Ad. 155, it was held to be no defence to an action
by the payee against the maker of a promissory note, that the payee had agreed to con-
vey an estate to the maker in consideration of a sum of money then paid or secured to
bo paid t)y the maker (being the sum mentioned in the note), and of a further sum to
be paid at a future day, and that such estate iiad not been conveyed. Lord Tenterden
said : " Where, by one and the same instrument, a sum of money is agreed to be paid
by one party, and a conveyance of an estate to be at the same time executed by the
other, the payment of the money and the execution of the conveyance may very prop-
erly be considered concurrent acts, and in that case no action can be maintained by the
vendor to recover the money until he executes or offers to execute a conveyance ; but
here the vendee, by a distinct instrumunt, agreed to pay part of the purchase-money on
the second of February. I can see no reason why he should have executed a distinct
instrument whereby he promised to pay a part of the purchase-money on a particular
day, unless it was intended that he should pay the .money on that day at all events.
In the cases cited, the concurrent acts were stipulated for in the same instrument ; here
the ])aymcnt of the £200 (which was part only of the purchase-money) was separately
provided for." Parke, 3.: "I incline to think that the defence to this action would
have been maintainable, if the circumstances had been such that the defendant, having
paid the £ 200 as a deposit, would have been so entitled to recover it back ; but it is per-
fectly clear that he could not have been so entitled as long as the contract remained
open. Now here the contract remained open at the time when the action was com-

-0-4 NOTES AND BILLS. [CH. VL

A's promise, and A accepts this, the contract is so far rescinded
and annulled, and then the consideration for the note fails. So
if one sells with warranty, and tliere is a breach, this does not
permit the buyer to defend against the note he gave for the
price ; (a) at least, unless the property proved to be entirely
worthless. (i) There should be also, it has been held, an offer to

menced, for the plaintiffs agreed only to convey the estate suhjeot to tlie two mortgages.
They were never bound to convey the legal estate to the defendant, but merely the
equity of redemption ; and that they had never refused to convey." In Trask v. Vin-
son, 20 Pick. 105, where the consideration of the note sued on was the assignment of
an airreemeiit to convey certain real estate, Morton, J. said : " The defendant's counsel
argues, that if the contractor fails to convey according to the terms of his agreement,
this will be a failure of the consideration of tiie notes. In support of the argument ho
relies upon the cases of Dickinson r. Hall, 14 Pick. 217, and Rice v. Goddard, 14 Pick.
293. There it was holden that where the consideration of a note was the conveyance
of property, real or personal, and the title failed, so that nothing passed i)y the convey-
ance, the note was nudum pactum. Those cases were well considered, and are founded
on sound principles, and supported by an irresistible current of authorities. With the
exception of a few obiter dicta in our own reports, and the case of Lloyd i'. Jewell in
Maine, 1 Greenl. 3.52, scarcely a dictum to the contrary can be found, while tliere is a
remarkable coincidence in all the other American and English decisions upon the sub-
ject. But tliosc cases are unlike the present. There, the real consideration, the moving
cause of the promise to pay, was the estate actually conveyed ; here, it is an agrcomcut
to convey, at a future time, and upon the hap])ening of a future event. That was an
executed, tliis an executory contract. The rule of damages, too, would he different
in the two cases. Tliere, the rule of damages would be tlie exact amount of the con-
.•^1 Kration paid ; here, it woulj be the value of the estate at the time it was to be con-
veyed. There, if the promisor was holden to pay his note, he might recover for the
breach of the covenant of seisin precisely the same sum. Here, the damages recover-
able on the stiimlatioii or covenant might be more or less than the amount paid or
received." In Moggridgc v. Jones, 3 Camp. 38, 14 East, 486, A having agreed to ex-
ecute a lease of jircmises to B, who was to pay a certain sum for it; and B, wlio was
let into possession, having acce])ted a bill for the considci-ation money drawn on him by
A ; it was held to be no defence to an action on the bill by A against B, that the formci
refused to execute the lease, but his remedy must be on the agreement. Lord El/eH'
borour/h said : " Tiio money agreed upon for the premises would have been payable im-
mediately ; but for the convenience of the defendant, the plaintiff agreed to take his
acceptances at a future day. This bill must, therefore, be paid in course when due;
and the defendant will have his remedy upon the agreement for the non-execution of
the lease." So in Freligh v Piatt, 5 Cowen, 494, wlicrc a promissory note was given
in consideration of a sale of pews followed with j)Ossession in the vendee, it was held
to be no defence that the vendor refused to convey. The remedy was liy compelling a
performance. In Ciiapman v. Eddy, 13 Vt. 205, it was held to be no defence to a note,
that the consideration thereof was a promise, by the payee, to give a deed of a pew,
by a certain time tiiereafter, which was not done within the time specified, nor imtil
after tin; commencement of the action on the note. And sec Wade v. Killough, 3 Stew.
& P. 431 ; George v. Stockton, 1 Ala. 136 ; Head v. Cummings, 2 Greenl. 82.

(a) Obbard v. Bctham, Moody & M. 483. And sec in/ni, p. 207, note i.

{b) Shepherd i-. Temple, 3 N. H. -155. In this case it was held, tlial in an action on

CH VI.] FAILURE OF CONSIDERATION. 205

return tlic property and rescind the contract. (c) The buyer's
remedy nuist be by an action on the warranty. But if there is
fraud, this avoids the note, although the buyer may alyo have his
action for the deceit. (c/) So it is no defence that the goods for
which the note is given are far less in value than was supposed ;
for this, in the absence of fraud or warranty, would not be either
a partial or total failure of consideration, as the buyer takes that
risk upon himself, (e) And this might be so even if the loss of
value were nearly total, provided the thing supposed to be sold
was sold and delivered. If one gave his note for a hundred
hogsheads of sugar, and it was found that the sugar had been
washed out or otherwise abstracted, in whole or in part, this
would be a total or partial failure of consideration. But if the
sugar was there, but not so good as the buyer expected, or not
worth so much in the market, or even if it were mixed with sand
or otherwise deteriorated, not so as to be worthless and unsalable,
but so as to be of less value than the buyer expected, this would
not be a partial failure of consideration, nor would it, generally,

a promissory note given for tlie price of goods sold with a warranty, it is a good defence
that the goods turned out to be of no value. And see Ilumsey v. Sargent, 1 Foster, 399.

(d) Lewis v. Cosgrave, 2 Taunt. 2 ; Solomon v. Turner, 1 Stark. 51 ; Fleming v.
Simpson, 1 Camp. 40, note.

(e) Thus, in Ruddcrow v. Huntington, 3 Sandf 2.52, where goods were sold by an
auctioneer, without any warranty or misrepresentation, and the same turned out to be
spurious, and the labels upon them counterfeit, it was held, that this was no defence to an
action on a note given for the purchase-money, there being no proof that the auction-
eer knew the fact of the spurious nature of the goods, or tliat he had any better means
of judging of their genuineness than the buyers possessed. And see Fleming v.
Simpson, 1 Camp. 40, note. So in Reed v. Prentiss, 1 N. H 174, it was held to be no
defence to an action on a note, that the article for which it was given proved to be of
no value. But had the property never passed, or had fraud been practised, or an ex-
press warranty been broken in relation to the article, either of these circumstances
might have defeated the action. In Perley t\ Balch. 23 Pick. 283, Morton, J. said : " If
a chattel be of no value to any one, it cannot be the basis of a bargain ; but if it be of
any value to either party, it may be a good consideration for a promise. If it is bene-
ficial to the purchaser, he certainly ought to pay for it. If it be a loss to the seller, he
is entitled to remuneration for his loss." In Johnson v. Titus, 2 Hill, 606, it was held,
that if an article sold be of the slightest value to either the vendor or vendee, it will
suffice by way of consideration for a promise to pay the agreed price, however dispro-
portionate to the real value. Accordingly, where one purchased mulberry-trees which
turned out to be of no value to him, by reason of being decayed and almost life-
less, it was held, that, as there was neither fraud nor warranty in the case, this consti-
tated no defence to an action on a note given for the price. And see Welsh v. Carter,
1 Wend. 185.

VOL. I. 18

206 KOTES AXD BILLS. [CH. VI

give the promisor any defence or remedy, unless he should prove
fraud or misrepresentation, or warranty, express or implied.

So also, it is no defence to an action on a bill of exchange
given for the purchase-money of property sold, that, two months
after the delivery of the goods to the vendee, the vendor forcibly
retook possession of them ; for the vendee cannot treat that act
as a rescission of the contract, but must bring trespass. (/) We
should think, however, that if the vendor retook the goods an an
act of rescission, the vendee might assent to this, and then could
defend against the note as avoided.

But if a note be given in payment of the price of certain goods
sold by the payee to the maker, as of the manufacture or growth
of a particular person, and answering certain samples, to be de-
livered by the payee to the maker within a reasonable time ; and
the payee fails to deliver goods answering to the description of
the contract, this will constitute a complete defence to an action
on the note.(^) Under such circumstances, the vendee has a
right to rescind the contract ; and if the purchase-money had
already been paid, he might recover it back.

It has been held, that a note for a patent right cannot be en-
forced if the patent is void, although the seller sold witli it some
materials, which, however, had no value to the buyer unless the
patent was valid. (/i) We should say this is law, although the

(/) Stephens v. Wilkinson, 2 B. & Ad. 320.

(ry) Wells V. Hopkins, .5 M. & W. 7. In this case, to an action hy tiic indorsee
against tlie drawer of a bill of exchange, the defendant pleaded that the bill was given
in payment of the price of seventeen pockets of hops sold by the plaintiif to the defend-
ant, as hops of a certain grower, and answering certain samples, to be delivered by the
plaintiff to the defendant within a reasonable time; that, althongh a reasonable time
had elapsed, the plaintiff had not delivered to the defendant any hops answering the
samples, or any hops whatsoever ; and that there was no consideration for the bill ex-
cept as aforesaid. Replication, de injuria. It appeared that the plaintiff had delivered
to the defendant seventeen pockets of hops, but inferior to the sani[)les. Ildd, that the
general allegation in the plea, that the plaintiff had not delivered any hoi)s whatever,
was immaterial, and might be rejected ; and that, without it, the ))lea showed a total
failure of consideration, and was an answer to the action. JMd, also, that if the plain-
tiff relied on the defendant's acceptance of the inferior hops, he ought to have re)ilied
it. Aldirson, B. said : " The latter allegation in the plea was an immaterial one, which
need not be proved. It is a total failure of consideration, if there be a liargain for a
certain kind of goods to be delivered in a reasonable lime, and no such goods are de-
livered within a reasonable time." And sec Bowles v. Newby, 2 Blackf. 304.

(/() Bliss I'. Negus, 8 Mass. 46 ; Earl v. Page, C N. II. 477 ; Dunbar r. Mardcn, 13
N. H. 311 ; Jollilfe v. Collins, 21 Misso. 338; Geiger v. Cook, 3 Watt.s & S. 266. In
Dickinson v. Hall, 14 Tick. 217, where the purchaser of a patent right gave thcrcfoi

CH. VI.] FAILUEE OF CONSIDERATION. 207

authorities are not uniform. (f) So wliere A appointed B liis
executor, and gave him a note by way of compensation for the
trouble lie was to have, and B died first, and his executors sued
A, the performance of B's promise to act as A's executor having
become impossible, it was held that the consideration luid wholly
failed. (_;■) So if, in an action on a note, it appears tliat for a def-
inite part the note was for a consideration, and for the residue an
accommodation note, the payee recovers only for that part which
was founded upon consideration. (^•)

It is, however, important to observe, that wlicre a partial fail-
ure of the consideration is alleged by the defendant, this part
must be distinct and definite, for only a total failure or a specific
and ascertained failure of a part can be availed of by way of de-
fence. For any other, the defendant can only have his set-off or
cross action. In several English cases, it is stated generally that
a partial failure of consideration is no defence ; but they all turn
upon the above distinction. (/) Thus, it is always a good defence,

his promissory note, and the patent proved to be void, the note was held to be entirely
without consideration, notwithstanding tlie vendor covenanted that he had good right
to sell and convey the patented privileges, and that he would warrant the same against
the claims of all persons. The court were of opinion, " tiiat, the patent right being
void, there was a total want of consideration for the defendant's promissory note, unless
the plaintiff's alleged covenant of title in the patent right constituted a consideration ;
that sucii a covenant would not constitute a valid consideration, for the object of the
defendant in making this contract was to obtain, not a mere covenant, but the convey-
ance of a patent right; that, although the plaintiff might have purchased and sold the
supposed patent right tliinking it to be valual)le property, still he could not recover in
this action, for the defence did not rest on the ground of fraud, but on the ground that
the defendant had received no value, and his promise was nudum pactum."

(i) See Williams v. Hicks, 2 Vt. 36.

(./) Solly V. Hinde, 2 Cromp. & M. 516.

{Ic) Darnell v. Williams, 2 Stark. 166 ; Barber v. Backhouse, Peake, 61 ; Cline v.
Miller, 8 Md. 274.

{1} Thus, in Morgan v. Richardson, 1 Camp. 40, note, which was an action against
the acceptor of a bill of exchange at the suit of the drawer, tiie I)ill being payable to his
own order, the defence was, that the bill had been accepted for the price of some hams
bouglit by the defendant from the plaintiff, to be sent to the East Indies ; and that the
hams had turned out so very bad that they were almost quite unmarketable. The sum
for which they actually sold was paid into court. Lord EUenhoroH<ih held, that though,
where the consideration of a bill of exchange fails entirely, this will be a sufficient de-
fence to an action upon it, l)v the original party, it is no defence to such action that the
consideration fails partially ; but that under such circumstances the giver of the bill
must take his remedy by an action against the person to whom it is given. So in Tye
V. Gwynne, 2 Camp. 346, in an action on a bill of exchange accepted for the price of
goods purchased for exportation, it was held, that the purchaser could not give in cvi-

208 NOTES AXD BILLS. [CH. VL

that tno contract on whicli the note was given has been re-
sehided ; (di) or that the property in the thing sold did not

dence that the goods were of a bad quality, and improperly packed ; but was driven to
his (TOSS action. Lord EUenborowjh said : " Sitting here, I sliall certainly adhere to
the judgment of the court in Morgan v. Richardson. Although money was there paid
into court, that circumstance formed no ingredient in the opinion 1 then expressed. A
bill of exchange cannot be accepted on a quantum meruit. There is a difference be-
tween want of consideration and failure of consideration. The former may be given
in evidence to reduce the damages ; the latter cannot, but furnishes a distinct and inde-
pendent cause of action." In Obbard v. Betham, Moody & M. 483, in an action by the
drawer against the acceptor of bills of exchange given for goods supplied, which were
to be " of good quality and moderate price," and were estimated at about .£400, and
the bills given for that amount ; it was held to be no defence that the goods turned out
to be worth much less than the estimated price, and that the acceptor had paid more
than the real value of the goods on the bills. Lord Tenterden said : " The cases cited
for the plaintiffs have completely established the distinction between an action for the
price of the goods, and an action on the security given for them. In the former, tho
value only can be recovered ; in the latter, I take it to have been settled by those cases,
and acted upon ever since as law, that the party holding bills given for the price of
goods supplied can recover upon them, unless there has been a total failure of consider-
ation. If the consideration fails partially, as by the inferiority of the article furnished
to that ordered, the buyer nmst seek his remedy by a cross action. The warranty relied
on in this case makes no difference. In Morgan v. Richardson, the hams bought turned
out unmaiketable. That was just as much a breach of warranty as there is in the pres-
ent case ; for every man selling a commodity warrants it to be of merchantable quality;
no purchaser buys except upon that understanding." In Day v. Nix, 9 J. B. Moore,
159, it was held, that a partial failure of consideration for a promissory note constitutes
no ground of defence, if the quantum to be deducted on that account is matter not of
definite computation, but of unliquidated damages ; as, where a note was given for tho
plaintiff's disclosing to the defendant an improvement in certain machinery, which
tumed out to i)e less beneficial than was anticipated by the parties In Trickey v.
Larne, G M. & W. 278, to an action by drawer against accei)tor of a bill of exchange
for £ 20 8.S 6(/ , the defendant pleailed that, before the drawing and acce])tance of the
bill, it wa-; agreed between the plaintiff and defendant that the plaintiff should do cer-
tain carpenter's work for the defendant for.£G3; that the defendant jiaid the plaintiff
.£43 in i»nrt payment of the £63, and afterwards accepted the bill of exchange, on
account of the residue of the £C3 ; that tlic plaintiff did not ])erform his agreement,
but neglected to pciform some work, and performed in an unworkmanlike manner other
work, necessary to be done under the agreement; and that the £43 was more than the
wliole work done was worth. Held bad, on motion for judgment non obstante veredicto,
as disclosing, not a total failure of consideration for the bill, but only a partial failure
of the consideration, to wliich tlie money payment and the bill were alike ai]plicable.
See also, Gascoyne v. Smith, M'Cl. & Y. 338. In Warwick r. Nairn, 10 Exeh. 702,
to an action by the drawer against the acceptor of a bill of exchange for £313 12s. 9rf.
the defendant pleaded, except as to £ 108 15s. 3</. parcel, that the bill was drawn and
accepted in respect of tlie price of certain goods sold by the plaintiffs to the defendant,
and for no other d(!bt; that, at the time of sale, the plaintiffs promised the defendant
tliat the goo^s should be of a certain quality ; that he bought the goods and accepted

(m) Benson v. Smith, 2 La. 102.

ClI. VI.] FAILURE OF COXSIDERATION 209

pass ; (ii) or that it is wholly witlioiit value. And wo should
infer from what seems to be the weight of authority, that it is
a sufficient defence, that the title of the vendor has wholly failed,

the bill on the faith of the plaintiffs' promise ; that the goods delivered were not of tlie
quality speeitied, but of inferior quality, and that they were of the value of .£ 108 15s :hi
and no more ; and that, save as aforesaid, theie never was any value or consideration
for the making or accepting the said bill of exchange. Held, on demurrer, that the
plea was bad. Pei- curiam: " The j)laintirt's are entitled to judgment. The authorities
are decisive that this plea is bad. If the defendant seeks to have them overruled, he
must t;\ke the case to the Court of Error." Sully /•. Frean, 10 Exeh .5.3.5. is to the
Same effect. In Drew v. Towle, 7 Fost. 412, it was /ifid, that a partial failure of con-
sideration is a good defence to a promissory note, wiiere the amount to be deducted on
that account is matter to be ascertained by mere computation ; but it is otherwise where
such amount depends uj)on the ascertainment of unli(iuidated damages. In Elminger
V. Drew, 4 McLean, .388, where the consideration of ilie note was a quantity of fish
sold by the payee to the maker, and warranted to be " well cured, good, sound, and
wholesome ; " it was held, that a breach of this warranty was no defence to an action
on the note. And see, to the same effect, Washburn v. Picot, 3 Dev. 390. So in
Pulsifer v. Ilotchkiss, 12 Conn. 234, it was /(?W, that, in an action on a bill or note, the
defendant cannot show a partial fiiilure of consideration to reduce the damages, if the
quantum to be deducted, on account of such partial failure, is not of definite computa-
tion, but of unliquidated damages, and there has been no attempt to repudiate the con-
tract or restore the consideration. Therefore, where A had sold an interest in a patent
right to B, accompanied with a false representation ; and the interest thus sold was of
some value, but of less than it would have been if the representation had been true,
but the difference was of an uncertain and unliquidated amount, and B did not repu-
diate the contract, nor offer to restore the interest sold ; iti an action on a promissory
note given by B to A for such interest, it was held, that B could not avail himself of
such partial failure of consideration to reduce the damages below the sum expressed in
the note. But see Andrews v. Wheaton, 23 Conn. 112. In Spalding v. Vandercook,
2 Wend. 431, where the consideration of the note declared on was the making of a
quantity of provision barrels by the plaintiff for the defendant, under an agreement to
manufacture the same so that they would pass inspection under the law regulating the
inspection of beef and pork; it was held, that the defendant might show, in order to
reduce the amount of the plaintift''s recovery, that a jiortion of the barrels were manu-
factured in an unskilful manner, and not in compliance with the terms of the contract,
whereby tlie defendant lost the sale of the same. So in Harrington v. Stratton, 22
Pick. 510, in an action by the payee against the maker of a promissory note given for
the price of a chattel, it was held competent for the maker to prove, in reduction of
damages, that the sale was effected by means of false representations of the value of
the chattel, on the part of the payee, although the chattel had not been returned or ten-
dered to him. In Peden v. Moore, 1 Stew. & P. 71, it was held, that whenever a de-
fendant can maintain a cross action for damages, on account of a defect in personal
property jiurchascd by him, or for a non-compliance by the plaintiff with his ])art of the
contract, the former may, in defence to an action upon his note, made in consequence
of such purchase or contract, claim reduction corresponding with the injury lie has sus-
tained. And see Wadsworth v. Smith, 23 Maine, 562 ; Hills v. Bannister, 8 Coweu,
31 ; Wade v. Scott, 7 Misso. 509 ; Barr v. Baker, 9 Misso. 840.

(n) Reed ;;. Prentiss, 1 N. H. 174.

Vol. L—

210 NOTES AND BILLS. [CH. VI.

even if he is liable on covenants in his deed ; but the cases cited
in our note will show that this is not certain.(o) But a failure
of title to a part of the land, or incumbrance upon it,{p) or the
exorbitant price of the goods, or that they were damaged, al-
though supposed to be sound, would not be a defence. Nor will

(o) The first case on this point was Frisbee v. Hoffnagle, 1 1 Johns. 50. IL gave a
promissory note to F. for the purchase-money of a certain piece of hind, conveyed by
F. to H. by deed, with warranty ; and at the time of the conveyance tiiore was a judg-
ment against F., under which the land was afterwards sold <ind conveyed. In an action
brought by F. against H. on the note, it was lidJ, that the suit could not be maintained,
as the consideration of the note had wholly failed, the title of H. being extinguished by
the sale under the judgment, though he had not yet been evicted by the ])urcliaser, for
he was liable to be evicted, and was responsible to him for the mesne profits. The doc-
trine of tills case has generally been followed substantially. In Rice v. Goddard, 14
Pick. 293, the court said : " The note was given in considci'ation of the conveyance of
land by deed with the usual covenants of seisin and warranty. The title to the land
failed entirely ; and the question is, whether that want of title is an entire want of con-
sideration for the note, so as to render it nudum pactum, or whether tiie covenants were
of themselves a sufficient consideration to support the promise. It was decided by the
court in Maine, in Lloyd t'. Jewell, 1 Greenl. 360, that the covenants were a sufficient
consideration. The decisions of that court are entitled to great respect ; the opinion,
however, in the case cited, was grounded on what was considered to be the settled law
of Massachusetts; but though there have been dicta, (Fowler u. Shearer, 7 Mass. 19;
Phelps V. Decker, 10 Mass. 279,) there has been no decision in this State to that effect,
and so the foundation of tlie opinion fails. The same subject has been before the
courts of other States, and the decisions have uniformly been, that a total failure of
title is a total failure of the consideration. Frisbee v. Hoffnagle, 11 Johns. 50; M'Al-
lister V. Heab, 4 Wend. 483 ; Steinhauer v. Witman, 1 S. & R. 447 ; Gray v. Handkin-
son, 1 Bay, 278; Bell v. Huggins, 1 Bay, 327; Cliandler v. Marsh, 3 Vt. 162 ; Tillot-
son V. Grapes, 4 N. H. 448. The promise is not made for a promise, but for the land ;
the moving cause is the estate ; and if th.it fails to pass, the promise is a mere nudum
pactum. It was objected, that the rule of damages in an action on the covenant would
be different from tiie consideration of the promise ; but in the case of a total failure of
title, the amount of damages would be tiie same ; and it is just that a party should be
allowed to show a total failure, in an action on the promise, instead of being com-
pelled to seek his remedy on the covenants." But in Hoy v. Taliaferro, 8 Smcdes &
M. 727, it was held, that a vendee of land wiio lias received a deed witii covenants of
warranty, and been let into possession, cannot, when sued at law on tiie notes given for
the purchase-money, set up the defence of failure of consideration, without showing an
actual eviction. See further, Knapp v. Lee, 3 Pick. 452 ; Trask v. Vinson, 20 Pick.
105 ; Cook V. Mi.x, 11 Conn. 432 ; Jenness v. Parker, 24 Maine, 289 ; Drew v. Towle,
7 Foster 412 ; Tyler v. Young, 2 Scam. 444 ; Gregory v. Scott, 4 Scam. 392 ; Slack v.
McLagan, 15 111. 242 ; Scudder v. Andrews, 2 McLean, 464. But sec Young v. Tiip-
leit, 5 Littcll, 247 ; Culium v Branch Bank, 4 Ala. 21 ; Dunn v. White, I Ala. 645;
Wilson V. Jordan, 3 Stew. & P. 92.

(p) Greenleaf r. Cook, 2 Wheat. 13; Howard r. Witham, 2 Greenl. 390; Went-
worth V. Goodwin, 21 Maine, 150; Morrison i;. Jewell, 34 Maine, 146; Chase v.
Weston, 12 N. H. 413; Lattin v. Vail, 17 Wend. 188; Jenness r. Parker, 24 Maine,
289.

CH. VI.] FAILURE OF CONSroERATION. 211

a court of equity, where tlie failure of consideration is unliqui-
dated, restrain an action on the note and bill, and order an ac
count.(<7)

It is certain that a mere inadequacy of value is not the same
as, and has not the effect of, a total or a partial failure of consid-
eration, (r) And we apprehend that the difficulty of discrimi-
nating between inadequacy and partial failure has been a princi-
pal cause of the conflict among the American cases as to the effect
of a partial failure of consideration. They cannot be wholly
reconciled ; but we believe that the principles we have stated
above are sustained by the weight of authority. It is quite cer-
tain, not only that fraud would always be a good defence, but
that extreme inadequacy of value might be evidence of fraud, and
the evidence would be stronger as this inadequacy was greater.

A partial want of consideration, like a partial failure, is a good
defence pro tanto. But a distinction is to be observed between
the two. A partial failure of consideration, as we have seen,
furnishes no defence, unless the amount is ascertained and liqui-
dated. But when there is originally a partial want of consider-
ation, that will be a good defence pro tanto in all cases. Thus,
if a note be given by a father to a son, partly in payment for ser-
vices and partly as a gratuity, so far as it is given upon the latter
ground it is without consideration, and this will be a good de-
fence. And it is no objection, that there was no agreement or
understanding of the parties, or any act or declaration of the
maker, to designate what part of the aggregate amount of the
note was intended to be a compensation for services, and what
part to be a gratuity. Tlie question, what amount was founded
on one consideration and what on the other, is to be settled by
the jury upon the evidence, (s)

(9) Glennie v. Imri, 3 Younge & C, Exch. 436.

(r) Solomon v. Turner, 1 Stark. 51.

(s) Parish v. Stone, 14 Pick. 198. In this case, Shaw, C. J., after citing the English
cases, which establish the doctrine that a partial failure of consideration furnishes no
defence, unless the amount is liquidated, said : "All the cases put are those of failure
of consideration, where the consideration was single and entire, and went to the whole
note, and was good and sufficient at the time the note was given, but by some breach
of contract, mistake, or accident, had afterwards failed. There the rule is, if the con-
sideration has wholly failed, or the contract been wholly rescinded, it shall be a good
iefence to the note. But if it have partially failed only, it would tend to an incon-
Tenient mode of trial and to a confusion of rights to try such question in a suit on the
no*s, as a partial defence, and therefore the party complaining shall bo left to his cross

212 NOTES AND BILLS. [CH. VL

SECTION III.

OF ILLEGAL CONSIDERATION.

An illegal consideration is a void one, for the reason that the
law cannot recognize a value in that which it forbids, nor enforce

action. This distinction, and the consequence to be drawn from it, are alluded to by
Lord Ellenboioutjii in Tye v. Gwynne, 2 Camp. 346. He says : ' There is a difference
between want of consideration and failure of consideration. The former may be given
in evidence to reduce the damages ; the latter cannot, but furnishes a distinct and inde-
pendent cause of action.' It seems, therefore, very clear, that want of consideration,
either total or partial, may always be shown by way of defence ; and that it will bar the
action, or reduce the damages, from the amount expressed in the bill, as it is found to
be total or partial respectively. It cannot, therefore, in such case, depend upon the
state of the evidence, whether the different parts of the bill were settled and liquidated
by the parties or not. Where the note is intended to be in a great degree gratuitous,
the parties would not be likely to enter into very particular stipulations as to what
should be deemed payment of a debt, and whal a gratuity. The rule to be deduced
from the cases seems to be this, — that where the note is not given upon any one con-
sideration, which, whether good or not, whether it fail or not, goes to the whole note at
tlie time it is made, but for two distinct and independent considerations, each going to
a distinct portion of the note, and one is a consideration which the law deems valid and
sufficient to support a contract, and the other not, — there the contract shall be appor-
tioned, and the holder shall recover to the extent of tlie valid consideration, and no
further. In the application of this principle, there seems to be no reason why it shall
depend upon the state of the evidence, showing that these different parts can i)e ascer-
tained by computation ; in other words, whether the evidence shows them to be respec-
tively liquidated or otherwise. If not, it would seem that the fact, what amount was
upon one consideration, and what upon the other, like every other questionable fact,
should be settled by the jury upon the evidence. This can never operate hardly upon
the holder of the note, as the presumption of law is in his favor as to the whole note ;
and the burden is upon the defendant to show to what extent the note is without con-
sideration. Suppose a father proposes, upon his son's going into business, to aid iiira
by an advance of several thousand dollars, and for that jiurpose gratuitously offers him
his note for that sum ; but as his son had performed services to the value of a few dol-
lars, for which no price was agreed, upon giving his note, the father, intending to cancel
and discharge that and all other claims, takes a general receipt for all services and other
dues, and afterwards, the note not having been negotiated, a suit should be brought on
it by the payee against the maker, might not the defendant show the want of considera-
tion by way of defence pro tanto? and yet the amount must he settled by a jury, the
evidence of the original agreement not distinguishing between what was payment and
what was gratuity." And see, to the same effect, Loring v. Sumner, 2.3 Pick. 98 ;
Folsom V. Mu.ssey, 8 Greenl. 400; Stevens v. Mclntirc, 14 Maine, 14. In Forman v.
Wright, 11 C. B. 481, to a count on a promissory note, the defendant pleaded that ho
" was indel)ted to one F. in the sum of £ 10 ]4s. lid., and no more ; that the plaintiff
frau<lulcntiy, dccciifully, and falsely represented to tlic defendant that (here was due
from the defendant to F. the sum of £32 6s. lOt/., and then demanded cf, and by

CH. VI.] ILLEGAL CONSIDERATION. 213

an obligation which it prohibits every one from assuming or dis
charging.

This iHegality may consist, first, in the violation of some posi-
tive statute law. As that prohibiting gaming, or issuing of
private bills or notes as currency, in some of the States, or work
on Sunday. As to this last, it may be observed that the English
and the prevailing American rule always was, that contracts
made in breach of the Sunday law were void.(^) But in Massa-
chusetts tlie rule formerly was, that the contract, or instrument,
— a note of hand, for example, — was valid, but the party was
punishable for the offence of making it.(w) Now, however, tlie
law in Massachusetts is the same as that above stated. (u) So, a
contract in violation of the statutes for the prevention of intem-
perance cannot be enforced, (?^) or a contract for smuggling, or
for compounding felonies. It is an illegality which avoids a con-
tract, if it violates the requirements or prohibitions of a statute,
although these are not so expressed, if they are certainly im-
plied ; and the general doctrine now is, that an act to which a
penalty is annexed is prohibited. (.-c) We do not think it desira-
ble to go into details upon this head, for they must depend upon
the fluctuating and very various provisions of the statutes of the
several States. Usury, one of the most important among them,
we shall discuss in connection with interest.

It may be well to remark here, as particularly applicable to
illegalities of this kind, although by no means confined to them,
that a contract which is intended to lead to and facilitate a

means of such representation as aforesaid induced, the defendant to deliver to liim the
note in thi; first count mentioned." It was proved, and found by the jury, that the note
was obtained by a false representation by the plaintiff that £32 6s. lOd. was due, but
that such representation had been made without^ fraud. Held, that the evidence sus-
tained the })l('a; for that the words " fraudulently and deceitfully" might be rejected,
and that the plea was in substance a plea of partial want of consideration. Crcsswell,
J. said : " The decision the court now come to does not in any degree interfere with
the doctrine, that a small consideration may sustain a larger promise. Where there is
a promise to pay a certain sum, all being, as in this case, supposed to be due, each part
of the money expressed to be due is the consideration for each part of the promise
md the consideration as to any part failing, the promise is, pro tanto, nudum pactum."

(t) See 2 Parsons on Cont., 2d ed., p. 262, et seq.

(«) Gecr V. Putnam, 10 Mass. 312.

(v) ^ttee ". Greely, 13 Met. 284. See Barrett v. Hyde, 7 Gray, 160.

(w) Wbe V. Burnham, 11 Post. 426.

(x) See I Parsons on Cont., pp. 381, 382.

214 NOTES AND BILLS. [CH. VL

breach of law, is also void for illegality, unless it produces this
effect indirectly and remotely. Thus, if money be lent to a man
expressly to game with, and the borrower give his note for it, the
note cannot be enforced. (y) But it would not be defence enough,
that thj borrower was known to be a gambler, and that any one
lending him money might expect that it would go to the gaming-
table, and that this money did go there.

Secondly, the illegality may consist in the violation of the laws
of religion, morality, or decency ; for the general and funda-
mental principles of these may be considered as incorporated into
the common law. For example, a note for future illicit cohabit-
ation is void.(5:) So it would be void if for rent of lodgings for
the purpose of prostitution. (a) A note given for past illegal co-
habitation is not void for illegality ; for the law does not prohibit
any one who has done a great wrong from offering some indem-
nity for it. But such a note, being a simple contract, cannot be
enforced, for the reason that the consideration is entirely passed
and executed, such a consideration not being sufficient to sup-
port a simple contract. It would be otherwise, if a bond or other
contract under seal were given, instead of a note. (6)

Thirdly, the illegality may consist in an opposition to public
policy ; for this the law must always protect. As a contract in
restraint of trade, without reasonable limitation of place or
time ; (c) or any contract restraining or preventing marriage,
even for a time ; or one of that kind known in English law as a
contract of marriage brokerage, or brokage ; that is, a contract
wherein one promises to assist another in accomplishing a mar-
riage, where the promisor has no right of interference, or does in-
terfere or may be supposed to interfere corruptly. (</) Contracts
to procure offices or votes, or for bribes of any kind, which in
some States are expressly forbidden, are void everywhere. (p) So

iy) Cannan v. Bryce, 3 B. & Aid. 179 ; M'Kinnell v. Robinson, 3 M. & W. 434;
Mordecai v. Dawkins, 9 Kich. 262.

(z) WiilktT i: Perkins, 3 Burr. 1568; Friciul v. Harrison, 2 C. & 1'. r)84.

(a) Girarday v. Ilicliardson, I Ksp. 13 ; Jonninf^s v. Thro{;morton, Hyan &, M. 251.

{b) See Binninfrton i;. Wailis, 4 B. & Aid. G.51 ; Gibson v. Dickie, 3 Maule & S. 463 ;
Nye V. Moseley, 6 B. & C. 133; Beaumont j;. Reeve, 8 Q. B. 483.

{d) Peyton i-. Bladwell, 1 Vern. 240. See 1 Parsons on Cont. 555, 550.

(e) Marsliail v. Baltimore & Ohio R. R. Co., 16 How. 314, 334 - .336 ; Clippingcr
V. Hcpliaugli, 5 Watts & S. 315; Harris v. Roof, 10 Barb. 489; Rose o. Trua.x, 21
Barb. 361. See Horn v. Tontz, 4 Calif. 321.

CH. VI.] ILLEGAL CONSIDERATION. 215

are those to suppress evidence, or to interfere in any way with
the course of justice, wliether within the terms of any statute or
not.(/) But a note for compounding a strictly private misde-
meanor is good at common law ; (g-) and in some of the States
this kind of composition is favored and regulated hy statute. So
a note, after conviction, for the legal costs and expenses of the
prosecution, may he good.{h) And it is said, that if one sells
goods, with the distinct knowledge that an illegal use is to be
made of them, but without the promise or purpose of rendering
personal aid, a note founded on this contract will be good.(i)
But this rule cannot be universal, and we should indeed regard
it as exceptional, if not doubtful. So if one receives a good bill
in substitution for one that is forged, at the request of the forger,
it is said to be valid, if there were no stipulation to stifle prose-
cution for the forgery ; (j) but the new bill would not bo given
unless the forged bill wore surrendered, and if this were done,
such a stipulation would seem to be a necessary implication, for
the principal evidence is destroyed.

Wagers generally, now indeed almost universally, are not en-
forceable contracts ; nor could a note in payment of a mere
wager be enforced between the parties. (/i;) But they are not ille-
gal, and money paid on tliem with full knowledge of the facts,
although with ignorance of the law, which prevented any legal
obligation, could not be recovered back. If, however, the bet
or wager was one which itself violated decency, or public pol-
icy, as a wager about the sex of any person ; or as to their
marriage, or having children ; or on the result of an elec-
tion ; or of a criminal or perhaps of any trial ; — in these cases,
not only would the note be void between the parties to it,
but, if discharged by payment, the money should be recov-
erable, unless where this was prevented by the rule that, both

(/) Nerot V. Wallace, 3 T. R. 1 7 ; Edgcombe v. Rodd, 5 East, 294 ; Coppock v.
Bovver, 4 M. & W. .361 ; Swan v. Cliandlcr, 8 B. Mon. 97 ; Clark v. Bicker, 14 N. H.
44 ; Commonwealth v. Johnson, 3 Cush. 454 ; Gardner v. Maxey, 9 B. Mon. 90; Hines-
burgh V. Sumner, 9 Vt. 23.

(.7) Dra<;e v. Ibhorson, 2 Esp. 643; Fallowes v. Taylor, 7 T.R. 475.

(/() Beelcy v. Wingfield, 11 East, 46 ; Keir i'. Leeman, 9 Q. B. 394 ; Kirk v. Stricfc
wood, 4 B. & Ad. 421 ; Baker v. Townshend I J. B. Moore, 120.

(i) Hodgson v. Temple, 5 Taunt. 181.

{j) Wallace v. Hardacre, 1 Camji. 4.5.

{k) See 2 Parsons onX^ont., 261, 262.

216 NOTES AND BILLS. [CH. VL

parties being in pari delicto, neither could have a remedy
against the other.

Under this head of puMic policy comes that class of cases
in which a fraud is committed or attempted against creditors.
Thus, if one creditor secures any advantage over the others,
which is concealed from them, and then enters into a composi-
tion or arrangement, in which they seem to stand on the same
ground ; or if he has anything given him as an inducement to
accede to tlie composition, and so bring others in ; or if there be
a bankruptcy, and the cousideration be withdrawing or suppress-
ing objection to a certificate or discharge of the delttor ; — in any
of these cases a uote given for sucli a consideration woidd l)e
void.(/) Aud if a note be given by a third person, who is indenv
nified by the debtor, it cannot be enforced against the maker, be-
cause it is void from the beginning.(w) In England, it was held
that, if the creditor of a bankrupt act as commissioner, and take
a note for his debt while the commission is going forward, he
cannot enforce it, because the maker could uot tlien be consid-
ered as a free agent. (w) So if a third person pay money for such
illegal purpose, and the debtor give him a note therefor, the note
cannot be enforced. (o)

Trading with an enemy, as we liave seen, is illegal, and there-
fore notes and bills given in the course of such trading shonld
be held void ; but a distinction has been taken, and it is said that
a bill drawn on an alien enemy is justified by practice, and is
legal. (/») Certainly it would be if drawn for payment of sup-
plies which it was legal to furnish, as to a cartel or licensed
ship.(^) The sale of a license, which was once held to 1)0 le-
gal, (r) was afterwards, by the Supreme Court of the Ujiited
States, held to be illegal ; and a note given for it would be
void.(6')

(/) Cockshott V. Bennett, 2 T. R. 763 ; Kni^ijlit v. Hunt, 5 Bini;. 432 ; Bryant v.
Christie, 1 Stark. .329 ; Sumner v. Brady, 1 U. Bl. 647 ; Rice v. Muxwell, 13 S. & M.
289 ; Sharp v. Tcesc, 4 Ilalst. 352.

(ill) Bryant v. Christie, 1 Stark. 329.

(u) MaywDoil i;. Chainhers, .5 B. & Aid. 753

(o) Bryant v. Christie, 1 Stark. 329.

(/>) United States v. Barker, 1 I'aine, C. C 156.

(r/) Suckley i;. Furse, 15 Jolins. 338.

(i) Coolid;,'C V. In^lec, 13 Mass. 26.

(«) Patton V. Nieliolson. 3 Wheat. 204.

CH. VI.] ILLEGAL CONSIDERATION. 217

If the consideration be in part illegal, and in part not, it seems
that the rule in case of partial failure of consideration does not
apply ; but the whole contract is tainted and avoided by that pari
of the consideration which is in violation of law.(/) Still, how-
ever, although a note on such mingled consideration would be
void, the fact of its nullity would leave the parties where they
were before, or would be without it. And if any good an^ legal
consideration passed between the parties, a proper action, as for
money lent, for example, if that were suitable, might be main-
tained thereon. (m) If a note or bill be given for a consideration
which is in part illegal, a new note for the same, or in renew^al
of the first, is equally void.(t;) But a new note for that part of
the consideration which is legal, is good and valid. And if sev-
eral new notes are given for the old one, some of the now ones
may be taken to be for the legal part, and so valid ; especially if
they are only adequate to this part, or if the deduction be other-
wise fixvorcd by circumstances. (li?)

If a debtor assigns and transfers to a bona fide creditor a debt
founded upon an illegal consideration, and this illegal debtor
gives his note accordingly to the assignee of his creditor, and is
discharged by his creditor, the note will be enforced against him ;
for though the consideration between him and the assignor is
illegal, that between him and his promisee is not illegal. (.r)

Whether, if a note be good in its inception, and afterwards,
by sundry transfers, it reaches a buna fide and innocent holder
for value, he is prevented from enforcing it against the maker, in
consequence of one of the intervening transfers being for an
illegal consideration, may not be quite certain. It has been said,
that if the indori<ements are blank, the holder may fill an earlier
one to himself, and so recover ; but if they are in full, or he is
fur any reason obliged to derive his title through the illegal trans-
fer, he cannot sue.(//) We think, that in either case, and equally,
this illegal transfer is no bar or defence whatever. Indeed, it

(t) Scott V. Gillmorc, 3 Taunt. 226.

(«) Utica Ins. Co. v. Kip, 8 Cowen, 20; Robinson i". Bland, 2 Burr. 1077.

(v) Ciiapman v. Black, 2 B. & Aid. 588; Wynne v. Callander, 1 lluss. 293 ; Treston
p. Jackson, 2 Stark. 237.

(w) Huhner v. Richardson, Bayley on Bills, 2d Am. cd., 570 ; Crooksliank v. Rose
S C. &P. 19.

(x) Bowen v. Do-^gctt, 2 Nott & McC 127.

[y) See Story on Prom. Notes, § 193.

VOL I. 19

218 NOTES AND BILLS. [CH. VI.

might be difficult to see why the very indorsee for illegal consid-
eration might not sue the maker, if his indorser had an unques-
tionable claim, and had voluntarily passed the paper from him-
self to this indorsee. The indorsee cannot in such a case sue the
indorser ; but we incline to think that he may, by the indorser's
title, sue a previous party. (0)

Where notes are made void by express statute, they cannot
become good in the hands of subsequent holders ; and upon no
such note can a subsequent holder have a valid claim against the
maker ; but if he holds the note for value and in good faith, he
may have a valid claim against his own indorser, either as the
maker of a new note or the drawer of a new bill, or else upon
the consideration which passed between them. (a)

SECTION lY.

OF TRANSFERS FOR ANTECEDENT DEBTS, OR FOR SECURITY.

In all cases where the note is not made void by law, but is
void as between the parties to it, for want, or failure, or illegality
of consideration, it becomes a good note or bill, as against all
parties, in tlie hands of a subsequent holder, provided tlie note
or bill was indorsed over before it was dishonored, and provided
also it was indorsed over for a sufficient consideration. The first
of these, relating to the time when the indorsement must be
made, will be considered hereafter. In regard to the second,
there is some conflict and uncertainty as to whether either pay-

(2) See Knights v. Putnam, 3 Pick. 184; Parr v. Eliason, 1 East, 92; Daniel w.
Cartony, I Esp. 274. But see Lowes i;. Ma/.zaredo, 1 Staik. 385. This question
usually arises in cases of usury, and we shall consider it more fully when we como to
treat of that sui)ject.

(a) In Edwards v. Dick, 4 B. & Aid. 212, in an action against the drawer of a hill
of exchange, it was luld to be no defence tliat the hill was drawn and accci)ted for a
gaminfj-deht ; it having been indorsed over by the drawer for a valuable consideration
to a third person, by whom the action was brought. So in Johnston v. Dickson, 1
Blackf. 256, in an action by the bona fide assignee of a promissory note against tho
assignor, it was hi-ld to he no defence that the note was originally given by the maker
to the defendant for an illegal consideration. Wo shall consider this and other (lU""
tioos relative to the rights of a bona fide holder more fully in the eh...'
subject.

CH. VI.] TRANSFERS FOR ANTECEDENT DEBTS, ETC. 219

meat of, or security for, a previously existing debt, is such a
consideration as protects tlie indorsee or holder.

The general question presents itself under three aspects. One,
where negotiable paper is received in payment of an antecedent
debt. Another, where it is received as collateral security for an
antecedent debt. A third, wlicre it is received as collateral secu-
rity for a debt or contract which is simultaneous with the trans-
fer of the paper. The question arises in no otlier cases, for if
negotiable paper be indorsed and given outright for a debt con-
tracted at the time, or in pursuance of a contract tlien executed,
this is certainly a valid consideration ; and the real question is,
whether only this constitutes such a consideration.

Tiie doctrine, that none of the three considerations above men-
tioned are sufficient, rests upon two grounds, which are quite dis-
tinct. One of these is, that the transferee of the paper, as he
gives for it no new consideration, is not injured by losing it; or
rather, tliat if it be taken away, he has all that he had before he
received it ; and consequently his title or interest is no better
than his indorser's, and whatever defence a prior party could
make against that indorser, the same may now be made against
him ; and if it be made successfully, and he loses the paper, he
falls back on the debt due to him from the indorser, which is just
as good as it was before.

Tlie other objection is, that none of these three transactions
is within the original purpose or true function of negotiable pa-
per. Such paper, it is held, is made, in the first instance, for
goods bought, or otherwise on a bargain simultaneous with it ;
and afterwards it may be negotiated by the payee, that is, given
by him in a transaction like that in wliich he received, sold, or
discounted it, in either of which cases the property passes abso-
lutely for a present consideration. And anything else than this
is irregular ; is not a business transaction ; no proper negotiation
of negotiable paper, and no such use of that paper as is contem-
plated by tlie peculiar principles or privileges of negotiable paper ;
and therefore these principles or privileges do not attach to it,
but it is open in the hands of the assignee to all the defences
which could have been made against it, had it continued in the
hands of the assignor.

We very much doubt tlie adequacy of either of these reasons,
in either of these cases. As to the first reason, it may sometimes

220 NOTES AND BILLS. [CH. M.

be applicable in part, but, as we should suppose, very seldom.
"We have already seen, that a note indorsed and given for an ante-
cedent debt is, under some circumstances at least, certainly good ;
and where it constitutes an absolute payment of that debt, it must
unquestionably be so. But, in general, we suppose it would be
very seldom true in fact, that a note indorsed and given for an
antecedent debt, as security or otherwise, or as security for a
simultaneous debt, can be withdrawn or annulled, and leave the
party receiving it as well situated as before. He has, it is true,
his whole claim against the transferrer ; but he docs not hold it
under so favorable circumstances. In the great majority of cases,
the transfer is in execution of a bargain, by which something is
gained by the transferrer ; either delay or forbearance, or further
credit, or the giving up by the transferee of other means, or de-
clining to use otlier opportunities of indemnity or security. If
the rule was confined to those cases to which it is strictly appli-
cable, we apprehend that it would be found to have a very limited
operation. It would be one thing to hold, that an indorsee of
negotiable paper, who can surrender it and be in all respects as
well situated as if he had not taken the paper, should be open to
the defences available against his indorscr. But it would be a
very different thing to hohl, that all indorsees for an antecedent
debt, or for collateral security, are in this position.

As to the other reason, that these are not regular business
transactions, or, as is sometimes said, that these transfers are not
made in due course of business, we think the supposition on
which the reason rests to bo erroneous. Such transactions now
constitute a large part of the use which is made of negotiable
paper. Even bank-bills, where it is desired to withiiold them
for a time from circulation, are sometimes pledged as security.
This is seldom a " regular," or perhaps a proper transaction ; but
the objections to be urged against it arc grounded upon the es-
pecial nature and purpose of this kind of negotiable j)aj)er, and
do not attach to common bills or notes. It is certainly very
common to offer notes for discount at a bank, and otlior notes as
a security for them ; and we cannot see what objection can lie
against this transaction, or any ground for saying that tlie f)ank
should be open to defences against the notes tliey take as secu-
rity, whi(;h they ai'c not open to as to those whicli they discount.
So far froui holding that transfer for security is not a regular

CH. VI.] TRANSFERS FOR ANTECEDENT DEBTS, ETC. 221

disposition of a negotiable note, we think it one extremely com-
mon in point of fact, wholly unobjectionable in itself, and often
extremely convenient to all parties. And the law could not
decide that this was an improper use of negotiable paper, and
withdraw its protection on this ground, without impairing the
utility of this paper, and throwing a useless hinderance in tlie
way of mercantile transactions. It is, therefore, our conclusion,
that wlien the principles of the law merchant have established
more firmly and unreservedly tlieir control and their protection
over the instrnmeuts of tlie merchant, all of these transfers (not
affected by peculiar circumstances) will be held to be regular,
and to rest upon a valid consideration. It is now quite well
settled, that in the first of the three cases before stated, namely,
wliere ncgotialile paper is received in payment and extinguish-
ment of a pre-existing debt, the holder is entitled to protection. (/;)

(6) This is held in the following cases : Percival v. Frampton, 2 Cromp. M. & R.
180; Poirier v. Morris, 2 Ellis & B. 89 ; Swift f. Tyson, 16 Pet. 1 ; Riley v. Ander-
son, 2 McLean, 589 ; Varnum v. Bellamy, 4 McLean, 87 ; Piigh v. Durfee, 1 Blatchf.
C. C. 412 ; Homes v. Smyth, 16 Maine, 177 ; Norton v. Waite, 20 Maine, 175 ; Adams
V. Smith, 35 Maine, 324 ; Williams v. Little, 11 N. H. 66; Atkinson v. Brooks, 26
■\'t. 569; Chicopce Bank v. Chapin, 8 Met. 40; Blanchard v. Stevens, 3 Cush. 162;
Brush v. Seribner, 11 Conn. 388; McCasky v. Sherman, 24 Conn. 605; Youngs v.
Lee, 18 Barb. 187, 2 Kern. 551 ; White v. Springfield Bank, 1 Barb. 225, 3 Sandf.
222 ; Bank of Sandusky v. Scoville, 24 Wend. 115 ; Bank of St. Albans v. Gilliland, 23
Wend. 311 ; New York Marbled L-on Works v. Smith, 4 Duer, 362 ; Perdon v. Jones,
2 E. D. Smith, 106 ; and sec cases in note d, infra; Walker v. Geisse, 4 Whart. 252,
258 ; Bush v. Peekard, 3 Harring. 385 ; Rcddick v. Jones, 6 Ired. 107 ; Bond v. Cen-
tral Bank, 2 Ga. 92 ; Bank of Mobile v. Hall, 6 Ala. 639 ; Pond w. Lockwood, 8 Ala.
669; Barney v. Earle, 13 Ala. 106; Carlisle v. Wishart, 11 Ohio, 172, overruling
Riley v. Johnson, 8 Ohio, 526; Bostwick v. Dodge, 1 Doug. Mich. 413; Bertrand
T. Barkman, 8 Eng. Ark. 150. In Williams v. Little, 11 N. H 66, Parker, C. J. said :
" The party who takes a negotiable note by indorsement bona fide before it is payable, in
payment of a precedent debt, and discharges that debt, without notice of any defence ex-
isting against the note, has as meritorious a case as he who receives the note in payment
for goods sold at the time. Townsley v. Sumrall, 2 Pet. 170, 182. If it be said
that the one parts with his property upon the faith of the promise contained in the note
which is received in payment for the goods, it may be answered, that the other, giving
credit to the note, parts with and discharges an obligation to pay money, which is, in
contemplation of law, property of quite as high a character. He cannot, after such
payment and discharge, maintain an action upon the debt he has thus discharged,
merely because the maker of the note he received in payment might have had some
defence against it in the hands of the payee from whom he received it. There is a suf-
ficient consideration. He has parted with a right. Something more is necessary to
enable him to recover his debt which ho has surrendered. He may be restored to his
right to recover the amount of his debt, if the maker avoids the note in liis hands by
a defence which arose prior to the indorsement. But the holder, having thus parted
19*

ooo

NOTES AND BILLS. [CH. VL

In New York it was at one time held that the receiving of a
note in payment merely of an existing debt was not enough,
without giving up other security, (c) But the rule now seems
to be otherwise. (^)

It may be remarked, that when negotiable paper is received in
payment of a debt, it may be received as absolute payment, and
in extinguishment of the debt, or it may be received as condi-
tional payment, namely, as payment, provided it shall turn out
productive, upon the use of due diligence. In two or three of

with Tiis property, on the faith of a promise which the maker had made negotiable, and
which bore no marks of dishonor, the question recurs why he has not as good and
meritorious a title as he who had parted with merchandise, or incurred responsibilities
upon a similar consideration. If the holder may, upon a failure to recover the note in
the one case, be remitted to his original right, and recover his debt against the indorser,
he may in the other recover back his merchandise, or its value, or the money he has
paid. Nor are we aware of any policy which should lead to such a distinction. The
payment of a debt is, or ought to be, as much a commercial transaction as a sale of
goods, or a loan of money. If it is in the usual course of trade to purcliase, it ought
also to be in the usual course of trade and commercial dealing to pay."

(c) See Francia v. Joseph, 3 Edw. Ch. 182; Spear v. Myers, 6 Barl). 44.5; Gold-
smid V. Lewis Co. Bank, 12 Barb. 407 ; Rosa v. Brothcrson, 10 Wend. 8.5, commented
on and explained in Smith v. Van Loan, 16 AVcnd. 6.59. So held in Tennessee. Vat-
terlien v. Howell, 5 Sneed, 441 ; Nichol v. Bate, 10 Ycrg. 429. In the following cases,
other security being given up, the holder was held entitled to recover. Smith v. Van
Loan, 16 Wend. 659; Bank of Salina v. Babcock, 21 Wend. 499; Mohawk Bank v.
Core}-, 1 Hill, 511.

{(J) See cases cited supra, note b. In Youngs v. Lee, 18 Barb. 187, 192, the court
said : " The mere discharge of an antecedent debt is a valuable consideration." In the
Court of Appeals, 2 Kern. 551, the case was put on this ground : " In the case before
as, the note was received in extinguishment of a demand upon a note not yet due, and
the note was delivered up. The surrender, upon a consideration of a security not due,
extinguishes the security." In Stetthcimcr v. Meyer, .3.3 Barb. 215, it was held that it
made no difference that the debt was overdue, if the evidence of the indebtedness, or a
security therefor, was at the time of taking the note given up. In Farrington v. Frank-
fort Bank, 24 Barb. 554, a person was induced, by false and fraudulent rci)rcsentatious
of the drawer of bills of exchange, to indorse the same for his accommodation, and the
bills were therefore delivered to the casliier of a l)ank which then held protested drafta
drawn by the same drawer on the same drawees There was no agreement between the
drawer and the cashier that the now drafts should be received in payment of the pro-
tested drafts, l)ut they were procurcil, and delivered to the cashier with the intention
that they should be held as additional and collateral security to the jirotested bills.
The new drafts were subsequently passed to tlie credit of tlie drawer on the books of
the bank, and he was charged with the protested bills, and the latter were stamped with
the cancelling-iron of the bank, but still remained in its possession. It was held that
the bank was not a bona fuk holder. See also Payne v. Cutler, 13 Wend. 605 ; Clark
r. Ely, 2 Sandf Ch. 166 ; Fulton Bank v. Phoenix Bank, 1 Hall, 562 ; Stewart v. Small,
8 Barb. 559.

CH. VI.] TRANSFERS FOR ANTECEDENT DEBTS, ETC. 223

our States, as Massachusetts and Maine, the presumption is, that
it is taken as absolute payment ; but in EngUmd and in most of
our States the presumption is, that it is taken as conditional
payment. To what extent any of our courts would make a
distinction between these two cases, holding that one who takes
a note as absolute payment is a holder for value, and that one
who takes it as conditional payment is not, is left in great doubt
and obscurity by the cases. As to the second case stated in the
text, namely, where negotiable paper is received as collateral
security, of an antecedent debt, the authorities are much less
harmonious. In England, it appears to be settled that such a
holder is entitled to protection, (e) It has been so held, also, by
the Supreme Court of the United States. (/) The same doctrine,
it seems, is held in Massachusetts and in some other States. (^)
In Vermont it has been held, that one to whom a bill of exchange
is indorsed as collateral security for an antecedent debt, is en-
titled to recover against an accommodation acceptor, not known
to him to be such when the bill was taken by him.(/!) In other

(e) Percival v. Frampton, 2 Cromp. M. & R. 180 ; Poirier v. Morris, 2 Ellis & B. 89.
See on this subject the chapter ou Payment by Bill or Note.

(f) McCarty v. Roots, 21 How. 432. See dicta in Swift v. Tyson, 16 Pet. 1. In
Goodman v. Simonds, 20 How. 343, at the time the note in suit was taken, collateral
securities previously given were surrendered, and further time given. It was held, that,
whatever the decision of the court might be on the general question, these facts con-
stituted the assignee a holder for value.

(g) Chieopee Bank v. Chapin, 8 Met. 40 ; Blanchard v. Stevens, 3 Gush. 162; Gard-
ner i'. Gager, 1 Allen, 502; Lc Breton v. Pierce, 2 Allen, 14 ; Gibson v. Conner, 3
Ga. 47 ; Savings Bank v. Bates, 8 Conn. 50.5 ; Bank of the Republic v. Carrington, 5
R. I. 515; Bank of Charleston v. Chambers, 11 Rich. 657; Smith v. Iliscocks, 14
Maine, 449 ; Valette v. Mason, 1 Smith, Ind. 89, 1 Cart. 288 ; and dicta in Payne 2».
Bensley, 8 Calif. 260 ; Allaire v. Hartshorne, 1 N. J. 665. The security must, how-
ever, be given for a debt which can be identified. Merriam v. Granite Bank, 8
Gray, 254.

(h) Atkinson v. Brooks, 26 Vt. 569. Redjield, C. J. stated the following exceptions
as based upon good sense, and perhaps sustained by authority : — "1. A note or bill
negotiated in security for a debt not yet due, is not upon sufficient consideration, ordi-
narily, unless the creditor wait in faith of the collateral after his debt becomes due.
2. If the debtor is notoriously insolvent before the note or bill is negotiated as collateral
security, it is said the creditor can only stand upon the rights of his debtor. 3. If a
note or bill is taken merely to collect for the debtor, to apply when collected, the
creditor not becoming a party by indorsement, so as to be bound to pursue the rules of
the law merchant in making demand of payment and giving notice back, the holder i3
merely the agent of the owner. Do La Chaumctte v. Bank of England, 9 B. & C. 208 ;
Allen V. King, 4 McLean, 128. 4. So, too, probably, if it were shown positively that
the holder gave no credit to the indorsed bill, and did in no sense conduct differently

224 NOTES AND BILLS. [CH. VL

States it is held tliat the taking of a note as collateral security
for a pre-existing debt, without more, will not place the taker in
the fcituatiou of a holder for value, so as to protect him against
the equities subsisting between the original parties to tlie note ;
but it is otherwise if there is a new and distinct considera-
tion, as if time was given, in consideration of obtaining the
note as security for the debt. For the giving of time would
be a present and a valuable consideration, and a pledge on these
terms would be the same as a pledge for money paid down.(i)
In the third case stated, namely, where one receives a bill or
note as collateral security for a debt contracted at tlie time,
it is quite well settled that he is entitled to protection against
equities. (7)

on tliat account, he could not be regarded as a holder for value." This case is doubted
in Austin v. Curtis, 31 Vt. 64.

(i) Petrie v. Clark, 11 S. & R. 377 ; Kirkpatrick v. Muirliead, 16 Penn. State, 117 ;
Clark V. Ely, 2 Sandf. Ch. 166 ; Bank of Pouglikeepsie v. Hasbrouck, 2 Seld. 216,
230: Prentiss v. Graves, 33 Barb. 621 ; Ontario Bank v. Worthington, 12 Wend. 593;
Warden v. Howell. 9 Wend. 170; Stalker v. M' Donald, 6 Hill, 93 ; Bertrand y. Bark-
man, 8 Eng. Ark. 150; Jcnncss v. Bean, 10 N. H. 266 ; Prentice v. Zane, 2 Grat. 262 ;
CuUum V. Branch Bank, 4 Ala. 21 ; Roxborough v. Messick, 6 Ohio State, 448 ; Cook
V. Helms, 5 Wise. 107 ; Goodman v. Sinionds, 19 Misso. 106. In Fenouille v. Hamilton,
35 Ala. 319, it was also held, that the fact that the holder afterwards grants indulgcnoo
or forbears to enforce his remedies for the collection of his debt, when it is not showu
that such indulgence or forbearance was an clement of the contract by which he acquired
the paper, does not render him a holder for value. In tlie following cases the giving
up other security was held sufficient to enable the holder to recover. Goodman v.
Simonds, 20 How. 343; Fenby v. Pritchard, 2 Sandf. 151 ; Payne v. Benslcy, 8 Calif.
260 ; Allaire v. Hartshorne, 1 N. J. 665 ; liobbins v. Richardson, 2 Bosw. 248 ; Dc-
peau V. Waddington, 6 Whart. 220. If a person takes a note as collateral, and not
only docs not give any other consideration, but retains other security which he before
held for the debt, it has been held that he is not a bona fide holder for value. Micklcs
V. Colvin, 4 Bar!). 304.

( /) Thus, in Collins v. Martin, 1 B. & P. 648, where A deposited bills indorsed in
blank with B, bis banker, to be received when due, and the latter raised money upon
them by pledging them with C, another banker, and afterwards became bankrupt ; it
was held, that A could not maintain trover against C for the bills. So in Munn v.
M'Donald, 10 Watts, 270, it was held, that if the payee of a promissory note, indorsed
by himself and subsequent indorsers, delivers it to his creditor as collateral security for
a debt then created on the faith of such indorsements, without notice of any equity
between the maker and payee, such maker cannot defend himself by showing failure
of consideration as between him and the payee. And see, to the same effect, Watson
V. Cabot Bank, 5 Sandf. 423 ; Williams i;. Smith, 2 Hill, 301 ; Griswold v. Davis, 31
Vt. 390 ; Ferdon v. Jones, 2 E. D. Smith, 106. So if it be taken for advances to
be made. Bancroft v. McKnight, 11 Rich. 663. In Fenby v. Pritchard, 2 Sandf.
151, it was held, that on a sale on credit, to be secured by notes as collateral, not

CH. VI.] TRANSFERS FOR ANTF.CKDENT DKBTS, ETC. 226

To the general rules which we have just stated, there are
undoubtedly exceptions, and among them are such cases as on
their own facts and merits come under the influence of a differ-
ent principle. The inquiry in every case is whether the partic-
ular transaction is within what is {)ropcrly meant by the negotia-
tion of negotial)le paper. (/i,-)

If a note bo indorsed and delivered for the purpose of collec-
tion, with directions to apply the proceeds, when collected, in
payment of a debt due to the indorsee from the indorscr, it seems
that the indorsee will be suljject to the same defences as his in-

yet due, the receipt of the collaterals five days after the delivery of the goods makes
the seller a bona Jidt iiolder of the notes for a valuable consideration, so as to protect
iiim against any defence which the maker of the notes iiad against the buyer of the
goods. The only cases opposed to this view are Jenness v. Bean, 10 N. H. 266, and
Williams v. Little, 11 N. H. 66, in which it is held, that, where a note is indorsed as
collateral security, the general property remaining in the indorscr, the indorsee takes it
like a chose in action not negotialilc, subject to all defences to which it would be
subject in the hands of the indorscr at the time when notice is given of the indorse-
ment ; and it mak' s no difference whether it is indorsed as security for an existing
debt, or value receiveil at the time. But in the later case of Clement v. Leverett, 12
N. H. 317, where a principal accepted bills of exchange, drawn on him by his agent,
payable to the order -jf the agent, who agreed to get them discounted for the benefit
of the principal ; and the agent, assuming to be the owner of the bills, pledged them
to a bona fide holder, to secure money borrowed for his own use, it was held, that the
principal, liaving enabled the agent to hold himself out as owner, was bound by the
pledge. We are not able to see very clearly how this case can be reconciled with the
two former.

(k) See Bay v. C'oddington, 5 Johns. Ch. 54, 20 Johns. 637. In this case, one R.
having, as agent of B., received negotiable notes to be remitted to B., delivered them to
C. as security against responsibilities as indorscr of certain accommodation notes of R.,
who had then stopped payment and become insolvent, but on which notes of R , C. had
not then become chargeable //e/J, that though C. had no knowledge that the notes so
deposited with him belonged to B., but believed R. to be the true owner of them, yet
he was not entitled to hold tiiem, as against B., the lawful owner, but was accountable
to him for the amount, with interest. Kent, C. said : " The notes were not negotiated
to them in the usual course of business or trade, nor in payment of any antecedent
and existing debt, nor for cash or property advanced, debt created, or responsibility
incurred, on the strength and credit of the notes. They were received from R. & S.,
and after they had stopped payment and had become insolvent within the knowledge
of J. & C. C, and were seized upon by the Coddingtons, as tabula in naufragio, to
secure themselves against contingent engagements previously made for R. & S., and
on which they had not then become chargeable. There is no case that entitles such a
aolder to the paper, in opposition to the title of the true owner. They were not hold-
ers for a valuable consideration, within the meaning or within the policy of the law.^'
We are not aware that this decision has ever been questioned. And see, to the same
effect, Bank of Mobile v. Hall, 6 Ala. 639 ; Andrews v. McCoy, 8 Ala. 920 ; Ber-
trand v. Barkman, 8 Eng. Ark. 150.

Vol. I.-P

226 NOTES AND BILLS. [CH. VI.

dorser For until the note is collected, he holds it merely as
agent or trustee of his indorser.(/)

It is universally conceded that the holder of an accommoda-
tion note, without restriction as to the mode of using it, may
transfer it, either in payment, or as collateral security for an an-
tecedent debt, and the maker will have no defence. (7?i)

In this chapter we have treated specifically only of negotiable
paper. But what has been said applies equally to a promissory
note not payable to order or bearer, and therefore not negotiable,
with only those qualifications and exceptions which are made
necessary by the fact, that a non-negotiable note cannot be in-
dorsed, and therefore no person can acquire the rights of an
indorsee.

Whether the presumption of consideration extends to a note
or bill which is not negotiable, cannot be positively stated from
the authorities. If the words " value received," or any similar
or equivalent words, are used, they would undoubtedly be re-
garded as evidence of consideration. But it is a different ques-
tion, whether, if no such words are used in a bill or note which
is not payable to order or to bearer, a presumption of considera-

(l) Solomons i-. Bank of England, 13 East, 135 ; De La Cliaumcttc i'. Bank of Eng-
land, 9 B. & C. 208 ; Johnson v. Barney, 1 Iowa, 531 ; Atkinson v. Brooks, 26 Vt.
584, cited supra. See Allen v. King, 4 McLean, 128.

(;n) Rutland Bank v. Buck, 5 Wend. 66; Grandin v. Le Roy, 2 Paige, 509; La-
throp V. Morris, 5 Sandf. 7; Mohawk Bank v Corey, 1 Hill, 513; IMatthcws v. Ru-
therford, 7 La. Ann. 225; Ai)i)leton v. Donaldson, 3 Pcnn. State, 386; Boyd r.
Cuinmings, 17 N. Y. 101 ; De Zeng v. Fyfc, 1 Bosw. 335; Rohhins i'. Richardson,
2 Bosw. 248. In Kinibro v. Lytic, 10 Yerg. 417, A left blank indorsements witli B,
with a view to aid B in his business and to sustain his credit. No restriction was
imposed as to the use to be made of them. B filled up a note with A's indorsement
thereon, and passed it to C as security for an existing liability of B. Held, that A
was liable to C upon such indorsement. Where an indorsement in blank is left with
A generally, and without restriction, it is an assent on the part of tlie indorser, that
A may pledge it as security for his existing liabilities, or use it in any other way law-
ful and necessary for his accommodation and credit. In Lord v. The Ocean Bank, 20
Penn. State, 384, Black, C. J. said: " The maker of an accommodation note cannot
set up the want of consideration ns a defence against it in the hands of a third per.son,
though it be there as collateral security merely. He who chooses to put himself in the
front of a negotiable instrument for the benefit of his friend, must abide the conse-
quence (12 8. & R. 382), and has no more right to complain, if his friend accommo-
dates himself by pledging it for an old debt, than if ho had used it in any other way.
This was decided, 3 Barr. 381, in a case strongly resembling the present one. Ac-
commodation paper is a loan of the maker's credit, without restriction as to tho man-
ner of its use."

CH. VI.] TRANSFERS FOR ANTECEDENT DEBTS, ETC. 227

tion would exist. The only conclusion to which we are led by
the authorities is, that in some of our States this presumption
would be denied, and in other^^, perhaps, admitted. (yi)

It is, liowever, certain that any holder of a non-negotiable note,
however numerous may be the transferrers intermediate between
himself and the promisee, stands only in the place of the prom-
isee, and has only his rights. Therefore, the presumption of a

(n) The text-books and the cases say comparatively little about promissory notes
not nej^otiable Selwyn's Nisi Prius, vol. 1, p. 400, defines a promissory note as a
promise in writing to pay " A or order, or A or bearer." The 3 and 4 Anne, ch. 9,
speaks only of notes in writing, whereby the promisor promises " to pay unto any
other person or his order." This statute was passed in 1704. Twenty-four years after,
the precise question came before the Common Bench, on demurrer, whether a note,
omitting the words " to order," was a promissory note within the statute ; and the
court held it to be "clearly within the statute." Burchell v. Slocock, 2 Ld. Raym.
1545. In Smith v. Kendall, 6 T. K. 123, the question of allowing three days' grace on
such a note came before the King's Bench, and the counsel for the plaintiff cited many
authorities to the point that this was a promissory note within the statute. But Lord
Kenyon, in giving his decision, refers only to Burchell v. Slocock, but fully confirms
that case. Story, in his work on Promissory Notes, sect. 9, says : " But if the prom-
ise be in writing, and it has all the other requisites, it is not essential to its character
as a promissory note that it should be negotiable." And in section 3 he says : " A
promissory note is, in contemplation of law, entitled to all the privileges belonging to
such an instrument by the Commercial Law as well as by Common Law, without
being negotiable." In sections 7 and 181 lie states that "promissory notes" import a
consideration ; but in section 7 he enumerates this presumption as one of the " privileges,
benefits, and advantages " given to them " to insure their circulation as a medium of
pecuniary commercial transactions." But this reason certainly does not apply to notes
not negotiable, because they cannot circulate by indorsement. In Mandeville v. Welch,
5 Wheat. 282, Story, J., giving the opinion of the court, says : " In this respect, bills
of exchange and negotiable notes are distinguished from all other parol contracts by
authorities which are not now to be questioned." He referred to the presumption of
consideration ; but as it was presented by the case as a question between third parties,
this may explain his use of the word negotiable. Generally, when the rule is stated,
either in te.xt-books or in adjudged cases, it is said of bills of exchange and promissory
notes, without using the word negotiable ; and when this word is used, it seems to be
a case where only a negotiable note was under discussion. In Meredith v. Chute, 2
Ld. Raym. 760, {noni. Meredith v. Short, I Salk. 25,) Lord Holt applies the rule to
a note, of which it is not stated expressly whether it was negotiable or not ; bat as
the note is said in both reports to have been " delivered " to the defendant as the
ground of his assumpsit, it may perhaps be inferred, both from this word and from
other parts of the case, that the note was not indorsed or negotiable. In Ridout v.
Bristow, 1 Cromp. & J. 231, the action was on a promissory note "expressed to be
payable to the testator twelve months after date," and turned upon the consideration.
There is no intimation throughout the case, which is a long one, that the note "was ne-
gotiable, unless it be implied in the remark of Vanghan, B., that the note was in the
usual form, and like all other notes." But he says this in reference to an attempt by
defendant to make it a " mere indemnity note." Through the case, all the counsel and

228 NOTES AND BILLS. [CH. VI.

consideration, or the evidence of a consideration derived from
such words as " value received," is open to rebutter, and want
or failure of consideration, total or partial, may be proved by
the promisor against any holder of a note which is not nego-
tiable, to the same extent and in the same way in which it may
be proved between immediate parties if the paper be negotiable.

all the judges speak of the rule as familiar and certain, using no words which would
confine it to negotiable notes.

That this presumption of consideration attaches to promissory notes which are not
negotiable, seems to have been distinctly held in New York. In Kimball v. Hunting-
ton, 10 Wend. 675, the Supreme Court say of an instrument in these words, "Due
A. B. $325, payable on demand ": " The instrument is a promissory note within the
statute, as it contains every quality essential to such paper." And in Goshen &
Minisink Turnpike Road v. Hurtin, 9 Johns. 217, which was assumpsit on a written
promise to pay money, the court say : " The note set forth in the declaration is a good
promissory note within the statute, though it has not the words 'bearer,^ or ^ order'" ;
and afterwards, " It was not requisite that a consideration should be averred, or appear
upon the face of the note, for every note within the statute, unless there be something
in the note itself to the contrary, imports a consideration ; and that presumption stands
good until the defendant destroy it." A similar conclusion may perhaps be inferred
from Coursin v. Ledlic, 31 Penn. State, 506, in which negotiability is held not to be
essential to a bill of exchange. See also, Mitchell v. Rome Railroad Co., 17 Ga. 574 ;
Thompson v. Crutcher, 26 Misso. 319 ; Middlesex Husbandmen, &c. v. Davis, 3 Met.
133; Townsend v. Derby, id. 363; Downing v. Backenstoes, 3 Caines, 137; Jones
V. Jones, 6 M. & W. 84.

In Bristol v. Warner, 19 Conn. 7, it is distinctly decided that " in this State " a note
not negotiable, and not purporting to be for value received, does not imply a consider-
ation. The only authority cited is Edgerton v. Edgerton, 8 Conn. 6. In that case, the
court so rule, citing no authorities, however, and quoting from Swift's Evidence thi.s
passage: "In Connecticut, promissory notes from the earliest periods have been con-
sidered as specialties, so far as to import a consideration." The court, after expressing
the highest regard for Judge Swift's authority, overrule it on this point. The court
evidently construe Swift's words as including non-negotiable notes ; but the rule, pre-
cisely as he gives it, is given in very many cases. Kent says, "The words ' value re-
ceived' in a bill or note are unnecessary', because value is implied in every negotiable
bill, note, iicceptance, or indorsement," (3 Kent, Com. 77,) thus omitting the word
" negotiable " when he gives the rule, but using it when he gives the reason for the rule.
In Bircleback v. Wilkins, 22 Penn. State, 26, it is said that "mere possession of non-
nogotiablc paper implies no consideration, and confers no right of action ia the holder's
name." Sec also Barrick v. Austin, 21 Barb. 241.

As we have already said in the text, wo are unable to make a more accurate state-
ment of the law on this subject than that " value received " in non-negotiable paper
raises the presumption of consideration ; but where neither these words nor others of
equivalent import arc used, and the instrument contains neither " bearer " nor " order,"
in some States the presumption of consideration would probably be udraiUcd, and iu
others denied.

CH. VII.] WHERE A PARTY SIGNS AS PRINCIPAL. 22?

CHAPTER VII.

OF THE RIGHTS AJST) DUTIES OF THE MAKER.

SECTION I.

WHERE A PARTY SIGNS AS PRINCIPAL.

We have already seen that the maker of a note and the ac-
ceptor of a bill have nearly the same rights and duties. (o) Botli
are the principal debtors, to be called on before any other parties
can be made liable. (j») There are, however, some differences,
which may be gathered from what is elsewhere said, but may be
here briefly stated. While the promise in a negotiable note must
be absolute, (g) an acceptance may be conditional. (r) Possession

(o) Supra, p. 54.

(p) Blair v. Bank of Tennessee, 11 Humph. 84; Foden v. Sharp, 4 Johns. 183;
Wolcott V. Van Santvoord, 17 Johns. 248 ; Wallace v. M' Connell, 13 Pot. 136 ; At-
tenborough v. MacKenzle, Exch. 1856, 36 Eng. L. & Eq. 562. In Laxton v. Peat, 2
Camp. 185, Lord Ellenhcn-ough held, that an acceptor for the accommodation of the
drawer was only a surety for the drawer. See also Collott v. Haigh, 3 Camp. 281.
But the authority of these cases was denied in Fentum v. Pocock, 5 Taunt. 192,
1 Mar.sh. 14 ; and in Yallop v. Ebers, 1 B. & Ad. 698. See also Price v. Edmunds, 10
B. & C 578. Harrison v. Courtauld, 3 B. & Ad. 36 ; Nichols v. Norris, id. 41 ; Strong
I'. Foster, 17 C. B. 201 ; Lord v. Ocean Bank, 20 Pcnn. State, 384 ; Church v. Bar-
low, 9 Pick. 547 , Commercial Bank v. Cunningham, 24 Pick. 270 ; Pickering v.
Marsh, 7 N. H. 192 ; Murray v. Judah, 6 Cowen, 484 ; Clopper v. Union Bank, 7
Harris & J. 92 ; Lambert v. Sandford, 2 Blackf. 137 ; Anderson v. Anderson, 4 Dana^
352 ; Farmers' & M. Bank v. Rathbone, 26 Vt. 19 ; Yates v. Donaldson, 5 Md. 389;
Hansbrough v. Gray, 3 Grat. 356. But see Parks v. Ingram, 2 Foster, 283. Courts
of equity have been disposed to admit evidence of the actual relations of the parties,
when those relations were known to the holder. Pooley v. Harradine, 7 Ellis & B. 431,
40 E. L. & E. 96. See Bank of Ireland i". Beresford, 6 Dow, 233. Ex parte Glendin-
ning. Buck, 517; Adle v. Metoyer, 1 La. Ann. 254; Theobald on Principal and
Surety, 254. The relations of the parties to each other may be shown by evidence.
See Parks v. Ingram, 2 Foster, 283 ; In re Babcock, 3 Story, 393 ; Baker v. Martin,
3 Barb. 634 ; Jones v. Brooke, 4 Taunt. 464.

{q) Supra, c. 3, ^ 5.

(r) Infra, c. 9, §1-

VOL. I. 20

230 NOTES AND BILLS. [CH. VH.

of a note by the maker affords a presumption in favor of his pay-
ment of it : while mere possession by the acceptor raises no such
presumption. (5) The maker of a note does not by payment
affirm the genuineness of the signature of the payee, while the
acceptor by his acceptance admits that the signature of the
drawer is genuine. (<) It is the duty of both to pay to any legal
holder, on legal demand, the whole amount of the note or bill,
which is then due.(M) But they have not the right of paying
before the paper is mature, unless by the consent of the holder.
If they tender the money before maturity, and it is received, this
acceptance of payment is a waiver of the right of the holder to
object. But he may reject the tender, and then it is of no effect,
either to stop interest or to prevent cost ; nor can it be pleaded
as a tender, (y) And if the maker or acceptor pay negotiable
paper before maturity, and it afterwards, before maturity, falls
into the hands of an innocent party for value, the maker or ac-
ceptor will be held to pay the amount to this innocent holder. (i<?)
Neither is the maker or acceptor bound to pay without pre-
sentation of the note. (a;) It has been said that neither is bound

(s) In Pfiel V. Van Batenberg, 2 Camp. 439, Lord Ellenhorough said: "Show that
the bills weie once in circulation after being accepted, and I will presume that they
got back to the acceptor's hands by his having paid them. But when he merely pro-
duces them, how do I know that they were ever in the hands of the payee, or any in-
dorsee, with his name npon them as acceptor. Prove the bills out of the plaintiff's
possession accc]ited, and I will presume that they got back again by payment."

(<) Infra, c. 10, § 2.

(u) Iitfra, c. 12, § 1.

[v) Bac. Abr. Tender (D) ; Plowd. 172, 173 ; Wade's case, 5 Rep. 114 ; Tillou v
Britton, 4 Halst. 120; Kingman v. Pierce, 17 Mass. 247 ; Saunders v. Frost, 5 Pick.
2.59.

(w) Dc Silva V. Fuller, Chitty on Bills, 392 ; Burridge v. Manners, 3 Camp. 193 ;
Morley v. Culvcrwell, 7 M. & W. 174 ; Griswold v. Davis, 31 Vt. 390. So if he takes
a release. Dod v. Edwards, 2 Car. & P. 602.

(x) Hansard v. Robinson, 7 B. & C. 90, 9 Dow. & R. 8G0. In this case Lord Ten-
tenhn said : " The principle upon which all such actions [on bills of exchange] is
founded is the custom of merchants. The general rule of tlie English law does not
allow a suit by the assignee of a chose in action. The custom of merc'i.ai.ts, consid-
ered as part of the law, furnishes, in this case, an exception to the general rule. What
then is the custom in this respect? It is that the holder of the bill shall present the
instrument at its maturity to the acceptor, demand payment of its amount, and, upon
rccei|)t of the money, deliver up tlic bill. The accepto^ pftyi"}? the bill has a right to
the possession of the instrument for his own security, and as his voucf.er and dis-
charge pro titulo, in his account with the drawer." Sec Musson i-. Lake, 4 How. 262 ;
Bank of Vcrgenncs v. Cameron, 7 Barb. 143; Freeman v. Boynt()i\, 7 Mass. 483 ;
GiU)crt V. Dennis, 3 Met. 495. A distinction luis been taken in this ix'speet between

CH. VII.] WHERE A PARTY SIGNS AS PRINCIPAL. 231

to pay without presentation of the whole note ; and hence the
holder of only one half of a note or bill, which has been so di-
vided for tlie sake of security, has been regarded as unable to
recover on it ; for an innocent holder of the other half wonld
have quite as good a claim ; and no promisor can be held liable
to pay the amount of his note to two different parties ; and there-
fore not to one, unless that payment will protect him from the
other. Tliis question is very fully considered in our chapter on a
Lost Bill or Note. In this connection we will only say, that, on
the whole, we should state the law thus : The holder of one half
of a negotiable bill or note may generally recover upon it tiie
amount of the bill or note, provided he sliow that he holds it by
good title ; but in some of our States, and perhaps in all under
some circumstances, he would be required to give indemnity to
the payer. (y/) But this question we consider elsewhere.

negotiable and unneyotiable paper, making delivery to the maker on payment necessaiy
in the former, and unnecessary in the latter. There is also a conflict of authority on
the point ; the English and some American cases holding the law as stated in the
text, while many American cases decide that the holder cannot be compelled to deliver
up the note. There are also decisions to the effect that the holder, after tendering ade-
quate security, may maintain an action on the note without presentation. This suhjcct
is considered infra, Vol.II. ch. 8.

(?/) In Mayor v. Johnson, 3 Camp. 324, a bank-note payable to bearer was cut in
two, and one half sent by mail. The bag containing it was stolen from tlie mail.
Suit being brought on the other half, the plaintiffs were nonsuited. Lord Ellenborongh
said : " It is usual and proper to pay u])on an indemnity ; but payment can be enforced
at law only by the production of an entire note, or by proof that the instrument, or the
part of it which is wanting, has been actually destroyed." Mossop v. Eadon, 16 Ves.
431, was a bill in equity to compel payment of a promissory note which had been cut
in two, one of the parts having been lost. The other part was produced. The bill was
dismissed, on the ground that an action might be maintained thereon at law. The note
had never been negotiated ; therefore this case is neither in conflict with, nor a confirma-
tion of, Mayor v. Johnson. But Mayor v. Johnson cannot be law, because a half of a
bill is not a negotiable instrument, and if it were, the holder of the lost part must have
taken it with notice of the existence of the other half, and at his peril. The reason
given, that the bank might be liable to pay twice, is, at the best, a very doubtful one.
The remedy of the holder, in good faith, of the lost part, would be against the party
from whom he received it. For these reasons, the American cases are in direct conflict
with Mayor v- Johnson. Hinsdale v. Orange Bank, 6 Wend. 378; Armat i'. Union
Bank, 2 Cranch, C. C. 1 80, 2 Nott & jNI. 471, note ; Bullet v. Bank of Pa., 2 Wash. C. C
172 ; Martin v. Bank of U. S., 4 Wash. C. C. 253; Patton v. State Bank, 2 Nott &
M 464 ; Allen v. State Bank, 1 Dev. & B. Eq. 1 ; Bank of U.S. v. Sill, 5 Conn. 106 ;
Bank of Va. v. Ward, 6 Munf. 169 ; Farmers' Bank v. Reynolds, 4 Hand. Va. 186 ;
Commercial Bank v. Benedict, 18 B. Mon. 307 , Northern Bank v. Farmers' Bank,
id. .506. But where the notes of a bank had been so severed as to make twelve bills
out of eleven, it has been held that the bank is no longer liable on the notes, since the

232 NOTES AND BILLS. [CH. \U.

The owner of a note who demands payment of it may some-
times be unable to produce and present it, because it has been
lost or destroyed. Here arises a different and peculiar question,
which will be considered hereafter, (z)

If a note be drawn with the intent that it shall be signed by
several persons, and one or more of them sign it on a representa-
tion by the payee of the party to whom it is to be given, or by an
understanding with him that the others will sign it, and they do
not, it is not valid against the actual signers ; (a) but if the sign-
ers, with a knowledge of the facts, waive their right to object, it
becomes their note. (6)

necessary effect of sach mutilation is to defraud the bank and to injure the community;
and such notes present on their face such unmistakable evidence of fiaud and forgery
as to amount to notice, or to deter a reasonably prudent man from receiving it in the
ordinary course of business. Northern Bank v. Farmers' Bank, 18 B. IMon. 506.
Whether "Worcester Co. Bank i\ Dorchester & M. Bank, 10 Cush. 488, which decides
that a party taking a bank-bill in good faith may recover upon it, although guilty of
gross negligence in not ascertaining that it had been fraudulently put into circulation,
would cover such a case, qucere. Dean v. Speakman, 7 Blackf. 317, is authority neither
way, as the note had never been negotiated. Some of the cases decide that the bank
has a right to require indemnity. Allen v. State Bank, 1 Dev. & B. Eq. 1 ; Bank of
Va. V. Ward, 6 Munf 169 ; Commercial Bank v. Benedict, 18 B. Mon. 307. In Far-
mers' Bank v. Ileynolds, 4 Kand. Va. 186, it was held, that the plaintiff cannot recover
interest nor costs, unless he tenders indemnity before bringing the action. In Armat
V. Union Bank, the bank offered to pay half the value of the bill, but the plaintiff was
allowed to recover the full value. In order to recover on such bill or note, the plain-
tiff must produce one half, and prove ownership of the other. Cases supra. The
United States Bank gave notice that it would not be responsible for any of its hills
wliich should be voluntarily cut in two, except on production of both the parts. The
court in Bank of U. S. r. Sill, 5 Conn 106, in speaking of this notice, say it "is as
extraordinary as it is novel, and is probably the first instance of a debtor's undertaking
to prescribe terms to his creditors." This is only a diclnm, ns the court held that notice
to the plaintiff had not been proved. But in Martin v. Bank of U. S., 4 "Wash. C. C.
253, the validity of such notice was denied by \VusIii'ii/;l<>n, J., who said : On what
principle can one party to a contract absolve himself from its obligations without the
assent of the other? I know of none. If the bank can dictate to the holders of its
notes the condition stated in this notice, upon the performance of which, and not other-
wise, it would pay them, it might with equal pro|)riety prescribe any other condition,
and declare in what case it would pay and in what not.
(z) Infra, Vol. II. ch. 9.

(a) Fvans v. Brcmridge, 2 Kay & J. 174, 35 Eng. L. & Eq. 397 ; Awde i;. Dixon, 6
Exch. 809 , Hill V. Swectscr, 5 N. II. 168. See Smith v. Doak, 3 Texas, 2! 5 ; Martin
V. Stribliiig, 1 Speers, 23; Bean v. Parker, 17 Mass. 591 ; Dunn v. Smith, 12 Smedes
& M 602 ; Miller v. Gamhie, 4 Barb. 146. In Bank of Mo. v. Thillips, 17 Misso. 29,
it was held, that it is no defence for an indorscr, that he in<lorsed the note iijion the
express condition that it should also be indorsed by another person, when it does not
appear that the plaintiff knew the condition.

(b) Leaf v. Oibbs, 4 Car. & P. 466.

CH. Vn.] WHERE A PARTY SIGNS AS SURETY. 233

SECTION II.

WHERE A PARTY SIGNS AS SURETY.

One may sign a note merely as surety. If he so call himself in
the note, he is only a surety as to all parties. (c) If two persons
sign a joint and several note, and one of them pays the whole
and sues the other for contribution, this other may show by evi-
dence that he signed only as surety for the first, who therefore
has no claim on him for contribution. (^Z) For the note is not a
written contract between tlie makers, although the language is
prima facie evidence of their relations to each other ; but it is a
written contract between them and the payee. This contract is
to pay money at a specified time, and on this point, at least, it
cannot be varied by parol evidence. On the question whether
parol evidence is admissible to show that one who signed a note
as a joint, or joint and several maker, was only a surety for his
co-maker, in an action by the holder against such surety, the au-
thorities are conflipting and uncertain. It seems to be settled,
that where the fact was not known to the holder previous to the
maturity of the note, such evidence is inadmissible ; but where
this relation was known to the holder at the time of entering into
the contract, the evidence is admissible in equity. But, at law,
it is urged, on the one hand, that this is an attempt to vary the
contract ; that the parties, having called themselves joint, or joint
and several, promisors in the contract, cannot assume a different

(c) See Hunt v. Adams, 5 Mass. 358, 6 Mass. 519, 7 Mass. 518 ; Humphreys v. Crane,
5 Calif. 173 ; Bryan v. Berry, 6 Calif. 394 ; Ex parte Wilson, 3 Mont. D. & De G. 57,
supra, p. 136. A note may be accepted by one as surety; see Boyd v. Plumb, 7 Wend.
309. The signature need not l)e on the face of the note. Palmer v. Grant, 4 Conn.
389; Marbergery. Pott, 16 Penn. State, 9. The suretyship is sufficiently indicated by
writing; the word '' surety," or " security," after the signature. Hunt i\ Adams, supra,
liobison V. Lyle, 10 Barb. 512. See Perkins v. Goodman, 21 Barb. 218. As to the
immediatcness of liability to tlic payee of parties signing as principal and surety, these
words are said to be words of descrijjtion only. Harris v. Brooks, 21 Pick. 195 ; Davis
i;. Barrington, 10 Foster, 517. See further, Sisson v. Barrett, 6 Barb. 199, 2 Comst.
406 ; Robison v. Lyle, 10 Barb. 512 ; Apgar v. Hiler, 4 N. J. 812. The character in
which the parties signed is presumed from the face of the note. Lord v. Moody, 41
Maine, 127.

(d) See Harris v. Brooks, 21 Pick. 195; M'Gce p. Prouty, 9 Met. 547 ; Laphara v.
Barnes, 2 Vt. 213; Apgar v. Hiler, 4 N. J. 812.

20*

234 KOTES AND BILLS. [CH. VIL

relation or character by extraneous evidence. On the other
hand, it is contended, that the note does not express the whole
contract, since it depends materially upon delivery, and the pur-
poses for wliich delivery is made ; that the terms of the note only
offer a presumption of the relation in which the parties stand to
each other ; that this is a mere collateral fact, which can be
proved, and the presumption rebutted, by parol evidence. We
consider that the weight of authority and principle is in favor of
the admission of such evidence. (e)

(e) In JIanley v. Boycot, 2 Ellis & B. 46, an action by tlie payee of a joint and
several note .against one of the makers, the defence being that the defendant was in
reality a surety, the court held a plea bad, because it did not allege that theuote was
delivered by tlie defendant to the plaintiffs, as surety, and that they agreed so to re-
ceive it from him. Lord Campbell, in delivering the opinion of tlic court, said : "But
cases in which it can be proved that, at the time wiien a note was made, or a bill was
accepted and handed over to the payee, the maker or acceptor being only a surety, the
payee, knowing this fiict, agreed to receive it from the maker as surety only, may
admit of a diftVrent construction, and, consistently with our judgment, it maybe held in
such cases, that the maker or acceptor is discharged, by time being given to the principal
debtor." In Pooley v. Harradine, 7 Ellis & B. 431, 40 Eng. L. & Eq. 96, the defendant,
a joint maker, pleaded, by way of equitable defence, that he signed tlic note only for
the accommodation of the other promisor, and only as his surety ; that tiie note was
accepted by the plaintiff upon the express agreement that the defendant should be held
only as surety ; and th.at the plaintiff had given time to the principal debtor by a valid
agreement, without the defendant's knowledge and consent, and to iiis prejudice. The
plaintiff demurred, and the court lield that the plea stated a good equitable defence at
law to the action. Coleridije, J. said : " In the more recent cases at law, liowevcr, tho
rule in question has apparently been treated as arising out of the original contract with
the creditor ; and if this was a plea of a legal defence we siiould ])robabIy have felt bound
by those autliorities, and have left it to a court of error to consider the whole question,
taking it into their consideration wiietiier the same rule in such matters ought not to
exist in courts of law and e(juity, and to decide, if there be a difference, what the
rule should be. As we are, however, called upon to deal with this case as if we
were sitting in a court of equity, we think we ought to decide it according to what wo
believe to be the doctrine of courts of equity. We give our judgment fur tlie defendant
on the present i)lea, on the ground that it a[)pears to us sufficiently to state tiiat the
relation of principal and surety existed between the defendant and tlie principal debtor
inter se, and that the plaintiff had knowledge of that fact when the notes were made
and received by him, and when he entered into a binding agreement to give time to the
principal debtor." We arc aware of no autiioritative case at law in l-'ngland which
expressly decides the point; thougli the language used in .some cases tends strongly
towards rejecting the evidence. Sec Strong v. Foster, 17 C. B. 201 ; Ilollier v. Eyre,
9 Clark & F. 45 ; I'ooley v. Harradine, supra; Manlcy v. Boycot, sHjim ; Price i;. Ed-
munds, 10 B & C. 578; Perfect v. Musgravc, 6 Price, 111. But it was admitted in
two ca.ses at Nisi Prius, — Hall v. Wilcox, 1 Moody & li. 58 ; Garrett c. Jull, I Selw.
N. P., 1 Ith cd ,407. lu the following cases the defendant was allowed to show that he
signed as surety, and that the plaintiff, having notice, had given lime, or relinquislicd
Bccurity ; nor does it appear that the note was taken with such knowledge, or agreed

CH. VII.] WHERE A PARTY SIGNS AS SURETY. 235

And if, of tlirce who sign a note, two, A and B, call themselves
sureties, and A pays the note and calls on B, his co-surety, for
contribution, this co-surety may show a separate agreement be-
tween himself and A, to tlic effect that he signed at the request
of A, who agreed to pay the whole if the principal failed, and
not to call on B for contribution. (/) And we should apply the
same rule if A and B were sureties in fact, but appeared on the
note only as joint promisors, or joint and several promisors. But
tlie authorities on this whole subject are conflicting, and leave the
law in some uncertainty. It has been held that one who signed
a note appai-ently as principal, but is a surety in fact, within the

to be so held. lioriie );. Bodwell, 5 Gray, 457 ; Carpenter v. King, 9 Met. f>\\ ; Har-
ris (.'. Brooks, 21 Pick. 19.t; Wilson v. Green, 25 Vt. 450; Grafton Bank v. Kent, 4
N. H. 221 ; Grafton Bunk v. Woodward, 5 N. H. 99. See Pain v. Packard, 13 Johns.
174; King v. Baldwin, 2 Johns. Ch. 354; Herrick v. Borst, 4 Hill, 650; Mariners'
Bank i: Abbott, 28 Maine, 280 ; Lime Rock Bank v. Mallett, 42 Maine, 349 ; Fowler v.
Brooks, 13 N. II. 240; Davis v. Barrington, 10 Foster, 517. In Wheat v. Kendall, 6
N. H. 504, it distinctly appeared that the plaintiff bonght the note before it became due,
without notice of any suretyship, but that he subsequently, and before giving time to
the principal, had notice that the defendant was a surety. Parker, J. said : " The
injury to the surety is the same as if the creditor liad possessed the knowledge at the
time the note was taken. He could not pay and take up the note within the term
of the extended credit, and seek indemnity from his principal as he might otherwise
have done. All that justice requires is, that sueh contract should not prejudice the
right of the creditor against the surety until he had notice that he was surety. When
lie has notice of that fact, all that he is required to do is, not to undertake to continue
the liability of the surety by a new agreement with the principal without the assent of
the surety. This manifestly imposes no hardship upon the creditor." See Peake v.
Dorwin, 25 Vt. 28; Claremont Bank v. Wood, 10 Vt. 582; Artcher v. Douglass, 5
Denio, 509 ; Elwood r. Deifendoif, 5 Barb. 398; Gahn v. Niemcewicz, 11 Wend. 312;
Branch Bank v. James, 9 Ala. 949 ; Lime Rock Bank v. Mallett, 34 Maine, 546 ; Dick-
erson v. Board of Commissioners, 6 Ind. 1 28 ; Burke v. Crugcr, 8 Texas, 66, 1 1 id. 694.
The burden is on the defendant to prove that the plaintiff had knowledge of the surety-
ship. Wilson V. Foot, 11 Met. 285. The weight of authority in America we conceive
to be in favor of the admissibility of the evidence. In Ohio, the evidence is inadmis-
sible, the remedy of the actual surety being only in equity, on the ground that this
would constitute no defence to all the plaintiffs. Farrington v. Gallaway, 10 Ohio,
543 ; Slipher v. Fisher, 1 1 Ohio, 299. In Maryland, Yates v. Donaldson", 5 Md.
389. So, perhaps, in Connecticut, but this point was not decided. Bull v. Allen,
19 Conn. 101 ; Orvis v. Newell, 17 Conn. 97. And in California, Kritzer v. Mills,
9 Calif. 21. In Sprigg v. Bank of Mount Pleasant, 10 Pet. 257, it was held, that
:iie defendant in an action on a single bill or bond, signed expressly as principal, was
estopped from showing that the plaintiff knew him to be a surety. The fact that the
surety nK'civcd part of the consideration from the principal, as a gift, will not make
him a joint principal. Fraser v. McConnell, 23 Ga. 368. See Wilson v. Wheeler, 29
Vt. 484

(/) Apgar V. Hiler, 4 N. J. 812.

2ot) NOTES AND BILLS. [CH. VU.

kno\rledge of the holder, and affixes his signature after the nanaes
of others as signers are forged upon the note, and while it is in
the hands of him for whose benefit it is drawn, so far sanctions
and affirms the genuineness of the forged signatures that he can-
not take advantage of the fraud in his defence against the holder,
unless he shows that the holder was privy to the fraud. (/?-) But
where the surety, after signing the note, intrusted it to a princi-
pal to be discounted at a bank, and before presenting it at the
bank the principal altered the amount to a larger sum, it was
held that the surety was not liable. The principle being, that,
where the plaintiff and defendant are equally innocent, the loss
must fall on the party who first placed confidence in the fraudu-
lent instrument. (A) If a surety signs a note which shows on its
face that it is to be discounted at a particular bank, and which is
known to the holder to be drawn for the purpose of raising
money in this way, the surety will be discharged by any different
negotiation of the note.(t) He has a right to require perfect
good faith in all transactions involving his suretyship, whether
between the principal and the parties with whom the surety ex-
pressly contracts, or between either of them and other persons. (7)
Therefore, if a creditor conceal from the surety any bargains or
stipulations made before the suretyship is entered into which
make the contract more onerous to the principal debtor than it
seems to be, this is a fraud which invalidates the suretyship. (A*)
The creditor is not obliged to proceed entirely against the
principal debtor, even if he be so requested by the surety. The
holder is not obliged to give notice to the surety that the princi-
pal debtor has failed to pay, and that he is looked to on his sure-
tyship. It is quite certain that mere omission to sue the prin-
cipal, witliout i-cquest by the surety, will not discharge the
surety ; (/) not even where, by the delay, the remedy of the

(7) Sclser V. Brock, 3 Oliio State, 302. In an action against the surety alone, the
phiiiitiff need not prove tlie signature of tlic principal. Bond v. Storrs, 13 Conn. 412.

(h) Agawam Bank v. Sears, 4 Gray, 9.5.

(i) Dewey v. Cochran, 4 Jones, 184 ; Southcrland v. Whitaker, 5 id. 5. Sec Smith
V. Knox, 3 Esp. 46.

(j) Supni, p. 132, notcy, and p. 140.

(k) SioMc I'. Coinpton, .5 Bing N. C. 142, 6 Scott, 846 ; sec Pidcock v. Bishop, 3
B. & C. eo.") ; Evans v. Keeland. 9 Ala. 42; Selser v. Brock, 3 Ohio State, 302;
Graves v. Tucker, 10 Smedcs & M. 1 ; Watriss v. Pierce, 32 N. II. 5fiO.

(/) Freeman's Bank ». Rollins, 13 Maine, 202; Townsend i: Kiddle, 2 N. 11.448;

CH. VII.] WHERE A PARTY SIGNS AS SURETY. 237

surety is lost.(w) And the authorities wouhl lead to the couclu.
sion, that this would be the rule, even where the surety had ex-
pres.sly requested that demand should be made or suit brought
against the principal. (w) And it is said to make no difference,
if the surety offers indemnity. (o) But this, which we think the
better rule, is not uncontradicted. (/?) So it is said a refusal to
prosecute a suit against the principal, which has been already
commenced, does not discharge the surety. (7) But the authori-
ties we cite show that the courts have found some difficulty in
determining questions of this kind.(r) And we should be in-

Baker v. Marshall, 16 Vt. 522 ; Hunt v. Bridgham, 2 Pick, 581 ; Johnson v. Planters'
Bank, 4 Sinetles & M. 165; Humphreys v. Crane, 5 Calif. 173; Ilartman v. Burlin-
ganie, 9 Calif. 557. See Orine v. Young, Holt, 84; Eyre v. Everett, 2 Russ. 381 ;
Heath v. Key, 1 Youuge & J. 434 ; English v. Darley, 2 B. & P. 61 ; Comhe v. Woolf,
8 Bing. 156 ; Strong v. Foster, 17 C. B. 201 ; Hubbard v. Davis, 1 Aik. 296 ; Naylor
V. Moody, 3 Blaekf 92 ; Dehutf «. Turbett, 3 Yeates, 157 ; Thursby v. Gray, 4 Yeates,
518; Burn v. Poaug, 3 Desaus. 596; Jordan v. Trumbo, 6 Gill & J. 103; U. S. 1;
Simpson, 3 Penn. 437 ; Cnran v. Colbert, 3 Ga. 239.

(m) Townscnd v. Riddle, 2 N. H. 448.

(n) Page v. Webster, 15 Maine, 249 ; Davis v. Huggins, 3 N. H. 231 ; Mahurin v.
Pearson, 8 N. H. 539 ; King v. Baldwin, 2 Johns. Ch. 554 ; Nichols v. MeDowell, 14
B. Mon. 6 ; Hogaboom v. Herrick, 4 Vt. 131 ; Bellows v. Lovell, 5 Pick. 307 ; Frye v
Barker, 4 id. 382 ; Dennis v. Rider, 2 McLean, 451 ; King v. State Bank, 4 Eng. 185.
See Manning v. Shotwell, 2 South. 584 ; Pickett v. Land, 2 Bailey, 608 ; Croughton ».
Duval, 3 Call, 69 ; Buchanan v. Bordley, 4 Harris & M. 41 ; Pintard v. Davis, 1 N. J.
632 ; Can- v. Howard, 8 Blaekf. 190; Colerick v. McCleas, 9 Ind. 245 ; Taylor r.Beck,
13 III. 376 ; Howard v. Brown, 3 Ga. 523; Abcrcrombie v. Knox, 3 Ala. 728. Mont-
pelier Bank v. Dixon, 4 Vt. 587.

(o) Adams Bank v. Anthony, 18 Pick. 238.

(p) See Bellows v. Lovell, 5 Pick. 307; Beardsley v. Warner, 6 Wend. 610;
Wright V. Stockton, 5 Leigh, 153 ; In re Babcock, 3 Story, 393.

(q) Bellows v. Lovell, 5 Pick. 307.

(/•) In Pain v. Packard, 13 Johns. 174, the court held that neglect by the holder to
sue the solvent principal, at the mere request of the surety, and the subsequent insol-
vency and absconding of the ])rincipal, discharge the surety. This was denied by
Chancellor Kent, in King v. Baldwin, 2 Johns. Ch. 554, but was affirmed by the Court
of Errors, in the same case, on appeal, 17 Johns. .'84, overuling the Chancellor. Al-
though this is now held to be the law in New York, it is subjected to strict limitations.
Warner v. Beardsley, 8 Wend. 194; sec Row r. Pulver, 1 Cowen, 2-16; Ruggles v.
Holden, 3 Wend. 216 ; Huffman v. Hulbert, 13 Wend. 377 ; Valentine v. Farrington,
2 Edw. Ch. 53 ; Merritt v. Lincoln, 21 Barb. 249. In Herrick v. Borst, 4 Hill, 650,
Cowen, J. said that the doctrine " came into this court without precedent, was after-
wards repudiated even by the Court of Chancery, as it has always been held at law
and in equity in England, but was restored, on a tic, by the casting vote of a layman."
See also Schroeppell v. Shaw, 3 Comst. 446 ; Fuller v. Loring, 42 Maine, 481 ; Bull
V. Allen, 19 Conn. 101. In Pennsylvania the rule of Pain v. Packard has been
adopted, the want of a remedy in equity in that State being mentioned as a reason.
See Cope v. Smith, 8 S. & R. 110; Erie Bank v. Gibson, 1 Watts, 143 ; Marberger ».

238 NOTES AND BILLS. [CH. VH.

clhied to say, that in equity at least, if not at law, there should
be an application of the rule established in cases of guaranty and
suretyship on bonds, so far, at least, that the surety might have
«ome remedy where he was injured by wanton and inexcusable
neglect on the part of the holder. (5)

It is a general rule, that if the creditor, with knowledge of the
suretyship, makes any binding contract with the principal, with-
out the consent of the surety, which varies the terms of the
original imdertaking for the performance of wliich he became
responsible, and is prejudicial to him, he is discharged. For the
responsibility of the surety rests upon the validity of his original
contract ; and this, in turn, depends upon the assent of both par-
ties, which is an essential element of every valid contract. (/)

Pott, 16 Penn. State, 9. The request need not be in writing. Cope v. Smith, supra;
Erie Bank v. Gibson, supr-a. But it must contain a positive order to sue, with a dec-
hiration that the surety will hold himself absolved if it is not complied witii. Greena-
walt V. Kreider, 3 Penn. State, 264 ; Gardner ». Ferree, 15 S. & R. 28. No tender of ex-
penses or stipulation to pay them is necessary, unless required by tiv3 creditor. Wetzel
V. Sponsler, 18 Penn State, 460. For other cases approving the rule in Pain v. Pack-
ard, see Lang v. Brevard, 3 Strob. Eq. 59 ; Goodman v. Griffin, 3 Stew. IGU ; Hancock
V. Bryant, 2 Yerg. 476 ; State Bank v. Watkins, 1 Eng. 123. In Alabama, Arkansas,
Georgia, Illinois, Indiana, Missouri, Ohio, Tennessee, Texas, and Vir>:inia, this sub-
ject has been regulated by statute. In Louisiana the rule of the Civil Law, allowing
the surety to require the creditor to proceed against the principal, [irevails. Civ. Code
(1838), art. 3015.

In Clark v. Hill, cited in McCoUum v. Hinckley, 9 Vt. 143, the surety was dis-
charged by the neglect of the holder to prove his claim against the insolvent estate of
the deceased ]iiiucipal until the claim was barred, and his pretending to have mislaid the
note and refusing a tender in bills, the surety having requested the holder to i)roceed
against the estate of the principal. In McCollum v. Hinckley, where the holder neg-
lected to i)rove his claim, but without notice of the death of the principal or n-quest by
the surety to j)r<)cced, the surety was held to be discharged to the amount which could
have been realized out of the estate. These two last cases were bills in equity. In
Bank of Manchester v. Bartlett, 13 Vt. 315, it was held that a mere refusal to proceed
against the insolvent estate of the deceased principal, unaccompanied by acts of posi-
tive and wilful interference, would not discharge the surety.

{s) See White v. Ilowland, 9 Ma.ss. 314 ; Oxford Bank r. Haynes, 8 Pick. 423;
Commerical Bank v. French, 21 Pick. 486; Marberger v. Pott, 16 Penn. State, 9;
Sibley v. McAllastcr, 8 N. II. 389. In Read v. Cutts, 7 GrecnI. 186, Melhn, C.J.
said : " No demand of the debt, or notice of its non-payment by the principal, need be
proved in an action against such surety in any case." Sec also Gilibs, C. J., Ornic v.
Young, Ilolt, 84; Wright v. Simpson, 6 Ves. 714; Sailly u. Elmore, 2 Paige, 497 ;
Beebe i'. Dudley, 6 Foster, 249. In California a surety is entitled to dennnid and
notice. Bryan v. Berry, 6 Calif. 394. Not, however, unless the surctysliip apj)ears on
the note. KritziT v. Mills, 9 Calif. 21. Presentment with demand of payment is not
necessary. Bond v. Storrs, 13 Conn. 412.

(f) Mayhcw v Boyd, 5 Md. 102 ; King v. Baldwin, 17 Johns. 384 ; Watriss v. Pierce,

CH. Vn.] WHERE A PARTY SIGNS AS SURETY. 239

We should say that any material variation would be i)resumed
to be prejudicial to the surety ; (u) although it is shown to l)e not
injurious to him.(v) It has been held, on what we deem strong
reasons, that, if a note be sued which was given as a collateral
security for the performance of a contract by another, it is a good
defence by the promisor that the contract has been materially
varied without his consent, (tf;)

If the creditor gives time or forbearance to the principal debtor
by a promise which binds him in law, and would ])ar his action
against the debtor, the surety is discharged. For in tiic first
place this essentially varies the terms of the oljligation, which
ceases to be that for the due discharge of wliich he l)ecame surety.
And in the next place the surety holds, as a valuable right, the
power of instantly saving himself by suit against the debtor, if
he is obliged to pay the debt. If, then, time be given to the
debtor, and the surety pays, he loses this right because he does
not pay from legal necessity. The debtor may say, "I was not
obliged to pay my creditor for three months to come, and why
should I pay you ? " And thus the creditor has deprived the
surety of a right on which he may have depended for his indem-
nity. (.«) But that the promise may have this effect, the fact of
suretyship must be known to the creditor at the time he makes

32 N. H. 560; Manuflicturers' Bank v. Cole, 39 Maine, 188. See Bonar v. Macdonald,
3 H. L. Cas. 226 ; Boston H. M. Co. v. Messinger, 2 Pick. 223 ; Bethunc v. Dozier,
10 Ga. 235.

(u) See Loughborough, Ld. Ch., Roes v. Bcrrington, 2 Vcs. Jr. 540 ; Eastman, J.,
Watriss v. Pierce, supra; Miller v. Stewart, 9 Wheat. 680.

(v) Miller v. Stewart, supra. See also McMicken v. Webb, 6 How. 292 ; Mackay v.
Dodge, 5 Ala. 388 ; IValiuorlh, Cii., Miller v. McCun, 7 Paige, 451 ; Nelson, J., Gahn
V. Nicmcewicz, 11 Wend. 312 ; Holmes v. Dole, Clarke, Ch. 71. See American Bank
V. Baker, 4 Met. 164 ; Bangs v. Strong, 10 Paige, 11,7 Hill, 250; Comegys v. Booth,

3 Stew. 14 ; Mc Williams v. Miison, 6 Duer, 276. But see, contra, Hulme v. Coles, 2
Sim. 12 ; Price v. Edmunds, 10 B. & C. 578; Bell v. Banks, 3 Scott, N. R. 497 ; Bar-
ker V. M'Clure, 2 Blackf. 14.

(w) Brigham y Wentworth, 11 Cush. 123.

(r) Bangs v. Strong, 10 Paige, 11, 7 Hill, 250; Bower v. Tiennann, 3 Denio,
378 ; Home v. Bodwell, 5 Gray, 457 ; Davies v. Stainbank, 6 De G. M. & G. 679 ;
Dunn V. Spalding, 43 Maine, 336 ; Chute j;.Pattee,37 Maine, 102 ; King v. State Bank,

4 Eng. 185 ; Waters v. Simpson, 2 Gilman,570. See Rces v. Bcrrington, 2 Ves. Jr. 540;
Orme v. Young, Holt, 84 ; Eyre v. Bartrop, 3 Mad. 221 ; Lewis v. Jones, 4 B. & C.
515, note. The doctrine was first ititroduced in courts of equity. Gihbs, C J., Melvill
V. Glcndining, 7 Taunt. 126. The rule is the same, if the principal was insolvent at
the time of the promise. Huffman ii. Hulbert, 13 Wend. 375.

240 NOTES AND BILLS. [CH. VH.

the promise ; {y) nor will such knowledge be presumed where he
takes a note overdue ; (z) if the surety assents to the promise,
he will not be discharged ; (a) but assent of one surety will not
bind a co-surety. (/>) If the agreement to give time be without
consideration, it does not bind the creditor, and therefore does
not discharge the surety. (c) The indulgence, to have the effect
of discharging the surety, must be for a definite time ; (d) but
this time may be very brief.(e) If the consideration for the in-
dulgence be usurious, where such a contract is void by law, the
agreement does not discharge the surety ; (/) and this has been
held even where the usury was paid, and the contract exe-
cuted ; (g-) but that the surety is discharged in this case seems
to be the better rule, and to rest upon better authority. (/<) Part
payment before maturity is held to be a sufficient consideration
for the promise of indulgence, which promise therefore discharges
the surety. (i) But payment after maturity is not regarded as a

(//) Elwood V. Deifendorf, 5 Barb. 398.
(z) Nichols I'. Parsons, 6 N. H. 30.

(a) See Gray v. Brown, 22 Ala. 262 ; Suydam v. Vance, 2 McLean, 99 ; Solomon
V. Gregory, 4 Harrison, 112.

(b) Crosl)y 1'. Wyatt, 10 N. H. 318. In this case, the defendant, in an action for
contribution between co-sureties, claimed his discharge, because time had been given to
tlie principal. The note was given to a bank, which, according to its regular usage,
allowed the note to lie over after it became due, on receipt of interest in advance from
the principal. Held, that this was presumptive assent of the surety to such extension
of payment; but that this principle cannot apply to any delay beyond such regular
usage. So where the note laid over for two years, under such circumstances, and the
principal had become insolvent. Strafford Bank v. Crosby 8 Grccnl. 191. See Crosby
V. Wyatt, 23 Maine, 1.56. Where a note stipulated for its continuance from time to
time, the sureties were held, although not consulted in making such continuance. Red-
dish V. Watson, 6 Ohio, .510.

(c) Reynolds v. Ward, 5 Wend. .501 ; Hogaboom v. Herrick, 4 Vt. 131 ; Creatli v.
Sims, 5 How. 192; Varnum v. Milford, 2 McLean, 74; Newell i-. Ilamcr, 4 How.
Miss. 684. Sec M' Lemorc v. Powell, 12 Wheat. 554; Brinagar v. Phillips, 1 B.
Mon. 283.

(r/) Board of Police, &c. v. Covington, 26 Missis. 470. See Miller v. Stem, 2 Penn.
State, 286, 12 id. 383 ; Alcock v. Hill, 4 Leigh, 622; Gardner v. Watson, 13 III. 347 ;
Parnell v. Price, 3 Rich. 121.

(e) Fellows v. Prentiss, 3 Dcnio, 512.

(/) Vilas V. Jones, 1 Comst. 274 ; McComb v. Kittridge, 14 Ohio, 348.

(7) Sec ViiiLS I'. Jones, supra.

(//) Kciiningham v. Bedford, 1 B. Mon. 325 ; Duncan v. Reed, 8 id. 382; Walworth,
Ch., Vilas ;; Jones, 10 Paige, 76 ; Kyle v. Bostick, 10 Ala. 589 If usurious contracts
are not void at law, the surety is discharged. Harbert i'. Dumont, 3 Ind. 346; Mc
Comb V. Kittridge, 14 Ohio, 348.

(1) Whittle V. Skinner, 23 Vt. 231 ; Grccly v. Dow, 2 Met. 176. In this last case

CH VII.] WIIHRE A PARTY SIGNS AS SURETY. 24j

sufificieiit consideration. (/) The receipt of interest in advance,
after maturity, has liowever been held to be a sufficient consider-
ation ; (A') and it has also been held to be prima facie evidence of
a valid agreement. (/) If the creditcn', when he gives time to the
principal, expressly reserves his remedy against the surety, the
surety is not discharged. (w) So if the surety iiolds I'ull indem-
nity from the principal, it has been held that he cannot avail
himself, by way of defence, of the fact tiiat time has been given
to the principal. (w) It seems to be otherwise, however, if the
indemnity is from a co-surety, who is not a party to the note.(o)

Shaw, C. J. stated the general rule thus : " If the lioldcr of the note has contracted to
enlarge I'lie time, he is hound by it ; whetlier it is treated as a colhitcral undertaking
upon wiiich the legal remedy is to be sought at law, as in Dow v. Tuttle, 4 ISlass. 4N ;
or whether tlie remedy of the promisor is in equity for a specific performance; or
whether tlie contract for an enlargement of the time of payment contains tlie stijjulation
that, if violated, it shall enure by way of release ; it makes no difference to the surety.
The holder of tiie note has a perfect right to enter into stipulations with the promisor
in regard to the time and the mode of payment Such stipulation, as between them,
is a valid and biudnig contract for furtiier time, bearing directly on the contract, whieli
he had no right to say he did not intend to fulfil, and therefore the surety may avail
himself of it as a substantive alteration of the contract, and insist on his discharge."
See Thomas v. Dow, 33 Maine, 390

(j) Mason v. Peters, 4 Vt. 101 ; Wheeler v Washburn, 24 id. 293 ; Pabodie v. King,
12 Johns. 426 See Jenkins v. Clarkson, 7 Ohio, 72.

(k) N. H. Savings Bank v. Colcord, 15 N. H. 119; Chute v. Pattee, 37 Maine, 102
See Blake v. White, I Younge & C. Exch. 420 ; Dubuisson v. Folkes, 30 Missis. 432.
Contra^ see Harter v Moore, 5 Blackf 367 ; Shook v. State, 6 Ind. 113 ; Reynolds v.
Ward, h Wend. 501.

(/) Crosby v. Wyatt, 10 N. H. 318 ; N. II. Savings Bank v. Ela, 11 N. H. .335 ; Mer-
rimack Co. Bank v. Brown, 12 N. H. 320, Contra, Oxford Bank v. Lewis, 8 Pick. 458 ;
Blackstone Bank v. Hill, 10 Pick. 129 ; Freeman's Bank ». Rollins, 13 Maine, 202;
Mariner's Bank v. Abbott, 28 Maine, 280. See Harnsbarger v. Kinney, 13 Grat. 511 ;
Crosby V. Wyatt, 23 Maine, 156. An agreement to receive payment in yearly instal-
ments, on a note payable on demand, discharges the surety. Gilford v. Allen, 3 Met.
255. Taking the check of the principal, payable at a future day, discharges the surety
on a bond. Bangs v. Mosher, 23 Barb. 478. For analogous eases, see Hulme v.
Coles, 2 Sim. 12; Price v. Edmunds, 10 B. & C. 578; Clippinger v. Creps, 2 Watts,
245 ; Okie v. Spencer, 2 Whart. 253 ; Michigan Bank v. Leavenworth, 28 Vt. 208 •
Hart V. Hudson, 6 Duer, 294.

(m) Viele v Hoag, 24 Vt. 46; Blackstone Bank v. Hill, 10 Pick. 129. See Wyke
V. Rogers, 1 De G. M. & G. 408 ; Ex parte Hafvey, 4 id. 881 ; Nichols v. Norris, 3 B.
& Ad. 41 ; Kearsley v. Cole, 16 M. & W. 128; Owen v. Homan, 3 Mac. & G. 378,
4 H. L. Cas. 997 ; Ex parte Glendinning, Buck, 5 1 7 ; Ex parte Carstairs, id. 560 ; Wag-
man V. Hoag, 14 Barb. 232; Sohier v. Loring, 6 Cush. 537. Contra in Louisiana.
See Gustine v. Union Bank, 10 Rob. La. 412.

(n) Chilton v. Robbins, 4 Ala. 223 ; Smith v. Steele, 25 Vt. 427. See Bradford V.
Hubbard, 8 Pick. 155 ; Moore v. Paine, 12 Wend. 123.

(o) Wilson V. Wheeler,. 29 Vt. 484.

Voi. I.-Q

242 NOTES AND BILLS. [CH. VH.

If a surety, who has been discliarged by giving time to tlie prin-
cipal, afterwards, with knowledge of the facts, and for a new con-
sideration, acknowledge that the original debt is due from him,
and agrees to be liable in a stipulation for further delay, he is
bound by this agreement, and possibly so, even if he were igno-
rant of the fact of his discharge, there being no fraud in the
transaction. (jo) And perhaps he may renew his liability by a new
promise, without any further consideration, on the ground that
his right to be discharged is a personal privilege, which he may
waive if he chooses. (^) A surrender, by the holder of a note,
of collateral security received from the principal, will discharge
the surety, either entirely, or pro tanto, if made without the
assent of the surety. For if the surety pays the note, lie is en-
titled to the benefit of such security, by subrogation. (r) So, as
a general rule, any fraudulent or deceitful conduct on tlie part
of the creditor, which lulls the surety into a groundless confi-
dence, and prevents him from obtaining indemnity, will operate
as a discharge. (s)

ip) N. n. Savings Bank v. Colcoid, 15 N H. 119.

(7) Parker, C. J., Fowler v. Brooks, 13 N. H. 420. Declarations by the surety to
third persons, that he " expected to pay the note," or that he " should he obliged to
pay " it, or " might have to pay " it, do not, of themselves, operate as a now jiromise.
The fact that the surety takes indemnity from the principal without any communication
with the creditor, is not a renewal of tlie promise. Fowler v. Brooks, supra. See
furtlicr, Mayhew v. Crickett, 2 Swanst. 185.

(?•) Baker r. Briggs, 8 Pick. 122. See Law v. East India Co., 4 Ves. 824; Com-
monwealth V. Vandcrslice, 8 S. & R. 452; Lichtcnthaler v. Thompson, 13 id. 157;
Everly v. Rice, 20 Penn. State, 297 ; American Bank v. Baker, 4 Met. 164 ; Hayes v.
Ward, 4 Johns. Ch. 123 ; N. H. Savings Bank v. Colcord, 15 N. II. 119. But in Crano
r. Stickles, 15 Vt. 252, Hihhard, J. said: "The payee of the note may give up such
security as he may have obtained at his own suggestion, without any assistance from
the surety, provided he acts in good faith, and only with reference to his own interest."
Where the creditor, after judgment on the note against both principal and surety, relin-
quished the property of the jiriiicipal seized on execution, and levied on property of the
surety, there being no proof of damage to the surety by the reliiuiuishment; it was held
that the creditor was not liable to the surety in trespass for the sale. Fuller v. Loring,
42 Maine, 481, Tenney, J. dissenting. Where the creditor, after judgment against tho
principal .alone, abandoned property seized on execution, it was held that evidence of
these facts was admissible to discharge the surety for tlie amount so abandoned.
Springer v. Toothaker, 43 Maine, 381. See Edgerly v. Emerson, 3 Foster, 555. In
Maylicw v. Crickett, 2 Swanst. 185, 1 Wils. Ch. 418, Lord ElJon said : " I a!way;< under-
stood, that if a creditor takes out execution against the principal debtor, and waives it,
he discharges the surety, on an olivious principle which prevails both in court.* of Inw
and in courts of equity."

(a) Baker v. Briggs, 8 Pick. 122; Harris v. Brooks, 21 id. 195; Clark v Hill,

CH. Vir.] WHERE A PARTY SIGNS AS SURETY. 243

A surety who pays a note which is due aud demandablc from
the principal promisor, although lie pays it witliout suit, or com
pulsion, or even demand from the holder, has an immediate
claim upon the principal debtor for indemnity. (^) And it seems
to be quite immaterial in what way the surety extinguishes the
creditor's claim. (z*) If the joint and several note of co-sureties
is accepted by the creditor as payment of the original note, they
may recover of the principal in a joint action, such a case being
an exception to the general rule, that each must sue for the
amount paid by him. Tiie exception is placed vipon the ground
that the payment was a joint act, creating a joint interest. (?;)

As to the costs which a surety may recover, it seems that he
may recover costs of his principal, after a suit against the surety
by the holder,(iy) unless his defence were frivolous, unnecessary,
or against the reasonable and honest instructions of his princi-
pal, (x) This right of the surety to indemnity, springing from

cited in McColIum v. Hincliley, 9 Vt. 143, 147. See Mactaggart r. Watson, 3 Clark
& F. 525.

[I) Minis V. McDowell, 4 Ga. 182. See Odlin v. Greenleaf, 3 N. H. 270; Pitt v.
Pui-ssord, 8 M. & W. 538.

[ti) Hulett V. Soullard, 26 Vt. 295; Bonney v. Seely, 2 Wend. 481. He may
recover on a count for money had and received, although he paid in notes, if they
were received as payment. Willie v. Green, 2 N. H. 333. Or on a count for money
laid out and expended. Pearson v. Parker, 3 N. H. 366. See Homraell v. Gamewell,

5 Blaekf 5. Where the administrator of the principal had successfully defended a suit
on the note against him, and the holder afterwards obtained a judgment by default
against the surety in the same court; it not appearing that cither party knew of the
other suit, or that the surety was privy to the administrator's defence ; it was held, that
the surety was not precluded from his right to indemnity from the estate of the prin-
cipal. Stinson v. Brennan, Cheves, 15. Where the administratrix of a surety, having
been sued by the holder of the note while it was still valid against the principal, but
after the claim against the surety's estate was barred by the statute of limitations, paid
the claim under an award ; it was held that she could maintain a claim for indemnity.
Shaw V. Loud, 12 Mass. 447. Where the surety, after the discharge in insolvency of
the principal, being then first called on, paid the note and sued the prin-
cipal, he was allowed to recover. Powell v. Eason, 1 Moore & S. 68.

[v) Stewart v. Vaughan, Rice, 33. Sec Pearson v. Parker, 3 X. H. 366 ; Appleton
r. Bascom, 3 Met. 169.

(w) See Cleveland v. Covington, 3 Strob. 184; Rice v. Rice, 14 B. Mon. 417;
Riddle v. Bowman, 7 Foster, 236.

(,r) Beckley v. Munson, 22 Conn. 299 ; Cleveland v. Covington, supra. See Roach
1. Thompson, 4 Car. & P. 194. The surety may recover costs incurred in an action
tgainst the principal and surety jointly. Apgar v. Hiler, 4 N. J. 812. It seems
that he may recover interest on the amount paid. See Petre v. Duncombe, 1 Eng. L.

6 Eq. 320; Ilsley v. Jewett, 2 Met. 168. But, in general, he can recover only the

244 NOTES AND BILLS. [CH. VH.

the equitable obligation of the principal to repay the surety, ex-
ists wherever the principal's assent to the suretyship may be rea-
sonably inferred, or presumed, and only there ; [y) and then it
relates back to the time of the original contract of suretyship, as
against all subsequent equities, (z)

A surety has, however, no claim against the principal upon
which lie can bring an action, until the note on which he is
surety is due. His contingent liability may, however, be a suf-
ficient consideration for a promissory note from the principal,
upon which he may commence a suit, even before the original
note is due. (a) As a general rule, whatever discharges the prin-
cipal discharges the surety. (6) But wliere one had signed a joint
and several note with a married woman, as surety, it was held
that her successful plea of coverture was no defence to the
surety. (c) Nor will this rule apply to the many cases in which
a surety is required, for the very reason that the principal may
have a defence which will defeat the claim against him. As in
the instance just mentioned, where a wife's note is strengthened
by a surety, so an infant's note may have a surety who will be
held, although the infant make successfully the defence of in-
fancy. (6?) And we should say that, if a corporation made a note
which they had no legal power to make, sureties on that note
would be held. And this might be true, even if the corporation
were proliibited by their charter, or by some general statute, from
issuing sucli a note. If, however, the issuing of the note were
not only prohibited, but made a legal offence, with a penalty

amount paid. Bonncy i;. Seely, 2 Wend. 481. Where one of the principals died,
it was held that the surety could recover the amount paid of the survivor, deducting
the proceeds of whatever collateral security he might have received. Riddle v. Bow-
man, 7 Foster, 236.

(y) Powers v. Nash, 37 Maine, 322 ; Norton v. Coons, 3 Denio, 130.

(z) Barney v Grovcr, 28 Vt. 391. Sec Howe v. Ward, 4 Grecnl. 195 ; Thompson
V. Thompson, 19 Maine, 244; Carlisle v. Rich, 8 N. H. 44; Choteau v. Jones,
11 111. 300.

(a) See Swift v. Crocker, 21 Pick. 241 ; Dcdman v. Willi.ams, 1 Scam. 154. It
has been said that a surety may have relief in e<iuity as soon as he is endangered.
Taylor v. Hcriot, 4 Desaus. 227; McKenna v. George, 2 Rich Eq. 15.

(A) 1 Parsons on Cont. 494 ; Theobald on Principal and Surety, 3. See Lewis v.
Jones, 4 R. & C. 506, 515, note a.

(r) Sinyhy i'. Head, 2 Rich. 590. See also Maggs v. Ames, 4 Ring. 470, and Con-
nerat v. Goldsmitii, 6 Ga. 14.

(d) Conn T. Coburn, 7 N. H. 368. See Kimball v. Newell, 7 Hill, 116

CH. VII.] WHERE A PARTY SIGNS AS SURETY. 245

attached, the wliole paper, with all its names, might then be
deemed void. The mere fact that the surety cannot, in any such
case, if he i)ays the note, have an enforceable claim for what he
pays against the principal, defeats the holder's claim against the
surety.

Payment of the whole amount will of course discharge the
surety ; but payment of a part, whether by principal or by surety,
will not discharge the surety. For the surety is bound equally
with the principal for the payment of the whole ; and as payment
of a part will not discharge the principal, so it will not discharge
the surety. (e) Nor will an offer of time which is not accepted. (/)
Nor will the taking of a collateral security by the creditor from
the principal debtor ; for this can only help the surety, who is
entitled, on his payment, to the benefit of all such security. («•)

(e) See Fitch v. Sutton, 5 East, 230 ; Beaumont v. Grcathead, 2 C. B. 494 ; Cotton
r. Godwin, 7 M. & W. 147 ; Hesketli v. Fawcett, 11 id. 356 ; Shaw, C. J., Lincoln v.
Bassett, 23 Pick. 1.54; Smith v. Bartholomew, 1 Met. 276 ; "Wheeler ». "Wheeler, 11
Vt. 60 ; Bailey v. Day, 26 Maine, 88 ; McAllester v. Sprague, 34 id. 296. Payment
of a part, by a third party, discharges the debtor. Welby v. Drake, 1 Car. & P. 557 ;
Brooks V. White, 2 Met. 283. If the holder has commenced a suit against the prin-
cipal, and the surety tenders the amount due, he must also tender indemnity against
costs. Hampshire Bank v. Billings, 17 Pick. 87. Part payment before the debt is due
is a good consideration. Wells, J., Lee t'. Oppenheimer, 32 Maine, 253 ; Brooks v.
White, 2 Met. 283.

(/) Sec Hewet v. Goodrick, 2 Car. & P. 468 ; Badnall v. Samuel, 3 Price, 521 ;
supra, p. 239, note x.

(g) Twopenny i'. Young, 3 B. & C. 208. See Burke v. Cruger, 8 Texas, 66, 1 1 id.
694 ; "Q. S. v. Hodge, 6 How. 279 ; Stevenson v. Austin, 3 Met. 474 ; Norton v. Soule,
2 Greenl. 341 ; Wade v. Staunton, 5 How. Miss. 631 ; Pring v. Clarkson, 1 B. & C.
14. Where a party holds two notes against another, one of which is signed by a surety,
recovery of the full amount of the other note will not affect his claim on the surety.
Dalton V. Woburn, 24 Pick. 257. In this last case it was held, that if the creditor re-
covers judgment on several notes, and the surety on one pays the note in full, and after-
wards the creditor receives from the principal the whole amount of the judgment on all
the notes, the surety cannot recover back any portion of the money paid by him. In
Lincoln v. Bassett, 23 Pick. 154, the principal made an assignment to the creditor, for
the benefit of all his creditors. The creditor received a dividend during the pendency
of a suit by him against a surety. It was held that the suit was not barred by the re-
ceipt of the dividend, but that the dividend was to be deducted in estimating the dam-
ages. Shaw, C.J. said: "The giving of an assignment or other collateral security
by the principal is no bar to an action against the surety, unless there be some stipu-
lation to that effect on the part of the creditor. Years may elapse after such an as-
signment before any money will be realized from the assigned property ; in the mean
time the obligation is to pay money immediatel}'. Were the surety thus to pay, it
might well be held in equity that the creditor should stand as trustee for him for the
assigned property. The most favorable view to be taken for the defendant is, that, the
21*

246 NOTES AND BILLS. [CH. VII.

But one surety, on payment of the debt, cannot claim the bene-
fit of security given by a co-surety. (A) And if a note be given
for the old one, even this may be deemed, if so intended, only as
collateral security, (z)

If a surety pays money to the creditor under a mistake of
facts, supposing them such as would make him liable, when in
truth they are not, he may recover the money back from the
creditor. (7) But if he had knowledge of the facts, and his mis-
take is one of law, he has no such right, (/i:) The declaration of
a surety on a joint note, the principal being insolvent, that he
intended to pay the amount, and wished to know how much
interest was due, in reply to a proposal by the holder that he
should sign a new joint and several note for the amount, does not
change the liability of tlie surety from joint to several, either at
law or in equity.(/) It has been held that a judgment against
principal and surety merges the relations of the parties, so that
a defence growing out of the relations existing before the judg-
ment is not available at law afterwards. (m) But such a defence
is admitted in equity.(Ai) It has however been said, that what-
ever would be a defence to the surety in equity, is a defence in
law.(o) A surety, whether this word be attached to his name or
not, is bound to any holder in like manner as a principal prom-
isor is lield. Thus, if a note be signed A and B, and against
B's name is the word surety^ B may be sued jointly with A, or
alone if the note be joint and several, in the same way as if the
word surety was not there.

creditor being himself the assignee, when the assigned property is reduced to money,
it operates by way of payment pro tanto."

(/i) Bowditcii V. Green, 3 Met. 360.

(i) See Caiifield v. Ives, 18 Pick. 2.53.

ij) Garland v Salem Bank, 9 Mass. 408.

{k) Bean v. Jones, 8 N. II. 149 ; Stevens v. Lynch, 12 East, 38.

(/) Jones V. Beach, 2 DeG. M. & G. 88G.

(w) Marshall v. Aiken, 25 Vt. 328 ; Ilerrick v. Orange Co. Bank, 27 id. 584. Contra,
Carpenter v. King, 9 Met. 511 ; Gibson, C. J., Commonwealth v. Vandci-slicc, 8 S.
& K. 452 ; Hicc v. Morton, 19 Misso. 263.

()i) See Storms v. Tiiorn, 3 Barb. 314 ; Curan v. Colbert, 3 Ga. 239.

(o) Miuinor's Bank v. Abbott, 23 Maine, 280 ; Springer r. Toothaker, 43 id. 381 ;
Varniirn >•. iMilford, 2 McLean, 74. Sec Uees v. Bcrrington, 2 Ves. Jr. 540; Sam-
uel! V. Ilowarth, 3 Meriv. 272; People ». Jansen, 7 Joiiiis. 332; Baker v. Brigg-^. •
Pick. 122.

CH. VII. ] JOINT MAKERS, ETC. 247

SECTION III.

OF JOINT MAKERS, AND OF JOINT AND SEVERAL MAKERS.

Two or more persons may sign a note jointly, as all copart-
ners do, and if it begin " We promise," all who sign it are con-
sidered as signing it only jointly. (p) It is then a joint note, and
can 1)6 sued only against all ; and they are in general joint
debtors, and come under the common rule of law in relation to
joint debtors. And it has been held that the note is joint, al-
though one of the makers signs as principal, and the other as
surety. (^) The most important of these rules of law which
relate to joint debtors arises from the necessity of suing all.(>')
Hence, if the plaintiff has released one of the joint debtors, he
can maintain no action against the other.(s) And the reason

{p) Mayor i;. Ripley, 5 La. 120. See Palmer v. Stephens, 1 Denio, 471 ; Yorks v.
Peck, U Barl). 644; Shep. Touch. 375.

(7) Hunt V. Adams, 5 Mass. 3.5S, 6 id .519, 7 id. 518; Palmer ». Grant, 4 Conn.
389 ; Eawstone ». Parr, 3 Kuss. 539, reversing same case, id. 424. A note beginning
'• I ])romise," signed by one partner for his co-partners, as " A, for A, B, & C," is the
joint note of the firm, not the several note of A, the partner who signed. Ex parte
Buckley, 14 M. & \V. 469, overruling Hall v. Smith, 1 B. & C. 407 ; In the matter
of Olai-ke, 1 De Gex, 153; Galway v. Matthew, 1 Camp. 403; Doty v. Bates, 11
Johns. 544. See supi-a.

(r) Mayor v. Ripley, 5 La. 120 ; Bright v. Hand, 1 Harrison, 273. See Robertson v.
Smith, 18 Johns. 459. In Bovill v. Wood, 2 Maule & S. 23, the plaintiff omitted to
join one of the promisors who had obtained his discharge in insolvency. Lord Ellen-
borough said : " The defendants have a right to require that their co-debtor should be
joined with them, and the plaintiffs cannot so shape their case as to strip them of that
right, or of the benefit, whatever that may be, of having his discharge stated on the
record. The plaintitts are not at liberty to antici]Kite in the first instance what may ulti-
mately, perhaps, be a discharge. The practice has ever been to join all the contracting
parties to the record ; and there is this advantage attending the practice, that it gives
the party who is joined notice at the time, and also enables him at any future time to
plead judgment recovered on the joint debt, without the help of any averment ; and it
likewise advances the other defendants one step in the proof necessary in an action by
them for contribution." See Hawkins v. Ramsbottom, 6 Taunt. 179.

(.s) Tuckerman v. Newhall, 17 Mass. 581. In this case the plaintiffs covennntcd with
one promisor that they " will forever release," &c., it was held that this must ojierate as
a present release, and the co-promisor was discharged. See also Brooks v. Stuart, 9
A. & E 854, 1 Per. & D. 615 ; Cheetham v. Ward, 1 B. & P. 630 ; Myrick v Dame, 9
Gush. 248 ; Wiggin v. Tudor, 23 Pick. 434 ; Kirby v. Taylor, 6 Johns. Ch. 242 ; De
Zcng V. Bailey, 9 Wend. 336 ; Taylor v. Gallaud, 3 Iowa, 17 ; Yates v. Donaldson, 5
Md 389 ; Bozcman v. State Bank, 2 Eng. 328 ; U. S. v. Thompson, Gilpin, 614.
The rule is the same at equity as in law. Willings v. Consequa, Pet. C. C. 301.

'IAS NOTES AND BILLS. [CH. VH.

of this rule is said to be, that the release is an admission that
the debt is paid.(^) According to the weight of authority, only
a technical release under seal will have this effect, a parol
release being insufficient, (w) We should say, however, that a
parol release made on good and sufficient consideration should
have an equal effect. In the cases which deny to a parol release
this efficiency, there is seldom any valid consideration. The
reasons for the distinctions taken on this subject are not always
quite satisfactory. (y)

(0 S/iaw, C. J., Pond v. Williams, 1 Gray, 630; Savage, C. J., Catskill Bank v.
Messenger, 9 Cowen, 37 ; see McAlIester ». Sprague, 34 Maine, 296 ; Crane v. Ailing,
3 Green, N. J 423 ; Brown v. Marsh, 7 Vt. 320.

(u) Pond r. AVilliams, 1 Gray, 630; Shaw v. Pratt, 22 Pick. 305; Frink v. Green, 5
Barh. 455; Rowley i'. Stoddard, 7 Johns. 207 ; Pinney v. Bugbee, 13 Vt. 623 ; Harvey
V. Sweasy, 4 Humph 449.

(r) In Tryon r. Hart, 2 Conn. 120, the defendants pleaded a release to one of them
not under seal. The plea was held bad on other grounds, but the distinction between
one under seal and one without docs not appear to have been noticed. See Camp-
bell V. Brown, 20 Ga. 415. In Benjamin v. McConnell, 4 Gilman, 536, it was held
that a release not under'seal, but entered of record and made part of a decree in chan-
cery, was sufficient. Purple, J. said : " But it is objected that this release or contract is
not under seal, and therefore is ineffectual to bar the action as against Benjamin. Onr
answer to this is found in the authorities above quoted ; that ' if it is a release as to
one, it is e((ually so as to all.' Another is, that it is evidenced by an act which, in legal
contemplation, is of higher authority than any instrument under seal, a decree of a
court of record, the validity of which cannot be assailed, nor its verity questi(med.
And thirdly, where a consideration is expressed in a release, or otherwise proved to
have passed between the parties, it is, in the opinion of the court, totally immaterial
whether the instrument is sealed or otherwise. A seal but imports or furnishes evi-
dence of consideration ; and, except in cases where the release is designed to effect a
conveyance or transfer of real estate, or some interest in or concerning it which can
only pass by deed, may, without infringing any rule of law, be dispensed with." In
Nicholson v. Uevill, 4 A. & E. 675, 6 Nev. & M. 192, it was hrld that the discharge of
one of two joint and several makers, by an agreemetit to that effect for a consideration,
and by erasing bis name from the note, discharged the other also. Lord Deiiinan, C.J.
said : " But we do not proceed on some of the grounds mentioned at the bar, such as
the effect of the plaintiff's alteration of the instrument as making it void, or that the
defendant thereby lost his right to contribution from the joint makers of the note ; nor
on any doctrine as to the relation of principal and surety. We give our judgment
merely on the principle laid down by Lord (^hief Justice Ki/rr, in Cbcetham v. Ward,
1 B. & P. 630, as sanctioned by unquestionable authority, that the debtee's discbarge of
one joint and several debtor is a discharge of all. For we tliink it clear that the new
agreement made by the iduintitf with Heviil, to receive from him £ 100 in full jyaymcnt
of one of the three notes, and in part payment of the otlier 1 wo before they became due,
accompanied with tlic erasure of his name from these two t\otes, and followed l)y tho
actual receipt of the £ 100, was, in law, a discharge of Uevill." Independently of tho
stress laid upon the erasure of the name, this ca,se is an authority for the snfh^icncy of

CH. VII.] JOINT MAKERS, ETC. 249

A judgment against one joint i)roniisor is a bar to an action
against both.(t(;) But a discluirgo in insolvency of one joint
maker has been held to be no defence to the other.(a;) And
it may be stated as a settled principle, that a discharge of
one joint promisor by operation of law, without the co-operation
or assent of tiie creditor, will not discharge both.(7/) And it
is now quite well established, at least as a general rule, that
a debtor may release one of two joint debtors, and, by an ex-
press reservation of his rights against the other, preserve them.
And if an action be brought against both, and this release to one
be pleaded, a replication that this action is brought against both
only to recover of the other has been held good.(s)

Although the word release is used, and a seal affixed, if the
whole instrument is capable of a construction which would make
it only an engagement not to charge that party, and the nature
of that contract or any admissible evidence leads to this construc-
tion, it will be so construed, because this saves the action. (a) For
as a plaintiff may agree not to demand the money of one of
two joint debtors, but reserve the right of action ; so, if he only
agrees not to demand the money, he will be held as intending

a parol release In Milliken v. Brown, 1 Rawle, 391, it was held that a parol release
of one debtor from a judj^ment against three, discliarged all. JW, J. dissenting.

(w) Ward v. Johnson, 1.3 Mass. 148 ; Robertson v. Smith, 18 Johns. 459 ; King v.
Hoare, 13 M. & W. 494. The contrary was held in Sheehy ». Mandcville, 6 Cranch,
253, but this case appears to have been governed by a local practice in Virginia. See
Tucker, J., Moss v. Moss, 4 Hen. & M 303. In Massachusetts an action is now al-
lowed in such a case I)y statute against such of the joint contractors as were not served
with process in the first suit. Gen. Stats. Mass., c. 126, § 15.

(.r) Tooker v. Bennett, 3 Gaines, 4. Tiiis is so declared by statute in Massachusetts
(Stat. 1838, c. 163, § 7) ; Garnegie v. Morrison, 2 Met. 381 ; and in England, 3 & 4
Wm. IV., c. 42, § 9

[ij] Ilartness v. Thompson. 5 Johns. 160; Robertson v. Smith, 18 Johns. 459; Dmi-
son, J., Nokc V. Ingham, 1 Wilson, 89 ; 1 Wms. Saund. 207 a, note ; Wilde, J., Ward
I'. Johnson, 13 Mass. 148. Sec Tuttle v. Gooper, 10 Pick. 281. In Cocks v. Nash, 4
Moore & S 162, a joint and several note of two had been given as security for the
separate debts of the promisors, one of whom the plaintiff had released. The creditor
declared on the note, and also on an account stated. A verdict was directed for the
defendant in the count on the note, and for the plaintiff in the count on the account
stated, for the amount of the separate debt of the defendant.

(z) Twopenny v Young, 3 B. & G. 211, 5 D. & R. 261 ; Lancaster v. Harrison, 4
Moore & P. 561, 6 Bing. 726 ; Solly v. Forbes, 2 Brod. & B. 38 ; North v. Wakefield,
13 Q. B. 536.

(a) Solly 75. Forbes, 2 Brod. & B. 38 ; Gouch r. Mills, 21 Wend. 424. See Dean v.
Newnall, 8 T. R. 168.

250 NOTES AND BILLS. [CH. VIL

to reuerve this right of action. And it is said to be immaterial
whether this agreement not to sue is for a limited time, or never
to sue. (6) A covenant under seal not to sue a party is not a
release, but is construed so as to tlie covenantee to save circuity
of action, because if judgment were rendered against him in the
suit, and he satisfied it, he would liave his action on the cove-
nant, (c) The mere taking of security from one joint debtor,
without otherwise giving up any rights against him, does not dis-
charge the others. (6?) Part payment by one joint debtor does not
discharge all, if the holder does not extinguish tbc contract. (e)
But it is not so construed as to the other joint debtor, who may
still be sued in an action brought against both.(/)

The reason of the rule that a discharge of one is a discharge of
all, is not merely technical. One of two who owe a sum jointly
owes in fact but half of it, because, if he is made to pay the whole
of it, he may recover half from the other by way of contribu-
tion ; (g-) but the right of contribution exists only where one pays
more than his share of a sum which others were bound and com-
pellable to pay with him, and it is therefore lost when the obliga-
tion is taken away from the others. The subject of contribution
is considered hereafter. (A)

At common law the death of one of two or more joint debtors
destroyed his obligation, so that the creditor could not proceed
against the representatives of the deceased. And if he recovered
the whole from the surviving debtor, or from tiic representatives
of the survivor, as he might, this debtor or his representatives

(b) See Piiincy v. Bugbee, 13 Vt- 623. The agreement may be by parol, as in
Pinncy i'. Bugbee, s///>ra ; Harrison v. Close, 2 Jobns. 448 ; or by deed, as in DurcU
V. Wendell, 8 N. H. 369; Kirby v. Taylor, 6 Johns. Ch. 242 • Shotwell v. Miller,
Coxe, 81 ; Walmosley v. Cooper, 11 A. & E. 216.

{(l) Bedford v. Deakin, 2 B. & Aid. 210; Perfect v. Musgrave, 6 Price, 111. See
also antp, ]> 13."), note (j.

(e) Buggies v. Patten, 8 Mass. 480. See Ilartness v. Thompson, .5 .Johns. 160, whcro
to a suit on a joint and several note one of the defendants pleaded infiincy. A verdict
rendered in his favor and against the others was sustained.

(/) Ilutton V. Eyre, 6 Taunt. 289; Garnett v. Macon, 2 Brock. IS.'j ; Durell v.
Wend.ll, 8 N. FI. 369.

((/) Bi.ardinan i'. Paige, 1 1 N 11. 431 ; Owens v. Collinson, 3 Gill & J. 25 ; BurncU
r. Minot, 4 ,J. H. Moore, 340 ; Prior v. llcmbrow, 8 M. & W. 873. See Il-nris r.
Brooks. 21 Pick. 195.

(It) Infra, c. 26, § 7.

CH. VII.] JOINT MAKERS, ETC. 251

could not claim any contrib\ition from the representatives of
the debtor dying first. This rule has been changed by statute
in nearly, if not quite, all our States. The debt falls upon the
representatives. They cannot be made joint defendants with the
surviving debtor, or with his representatives ; but actions may be
brought against both, and if either pays more than his or their
due share, contribution may be demanded from the other. In
some States the common law has been changed still further by
statute, and joint contracts are made several as ^^l(j^(Koint.(^)
A note may be both joint and severaL^|^^&; 'so if the
words are, " We jointly and severally prona^^^Bl^or if other
words are used which indicate, and perh^s iyroey permit, such
a construction. (7) Thus, if the words are, "I promise to pay,"
and there are many promisors, it is the several promise of each,
and the joint promise of all. (A;) If the note were expressly
written, " We severally and not jointly promise," <fec., it would
probably be held as several only ; but we have never known
such a case.(/) If a note be joint and several, it is in fact one
more than as many notes as the number of the signers, being the
note of each one of them, and also the joint note of all.(m) And
as many distinct actions may perhaps be brought upon the note ;

(0 See Smith v. Clapp, 15 Pet. 125; Suydam v. Barber, 6 Duer, 34 ; Robertson v.
Smith, 18 Johns. 459.

[j) In Reese v. Abbot, Cowp. 832, the defendants had signed a note promising to
pay "jointly or severally." Lord Mansfield said : " If 'or' is to be understood in this
case as a disjunctive, who is to elect whether the note shall be joint or several 1 Cer-
tainly' the person to whom it is payable. If so, the plaintiff has made his election.
But ' or ' is synonymous in this case with ' and.' They both promise that they, or one
of them, shall pay ; then both and each is liable in soUdo. The nature of the transac-
tion forces this construction." See Bishop v. Church, 2 Ves. Sen. 100, 371 ; Thomas
V. Fraser, 3 Ves. 399 ; Burn v. Burn, id. 573 ; Sayer v. Chaytor, 1 Lutw. 695 ; Carter
V. Carter, 2 Day, 442. The fact that one or more of the parties signs as "surety"
does not vary the case in this respect. Hunt v. Adams, 5 Mass. 358 ; Read v. Cutts,
7 Greenl. 186. Cases of irregular execution, as where a party, not a payee, signs upon
the back of the note, or out of the usual place, arc considered in the Chapter on Guar-
anty.

(h) March v. Warxl, Peake, Cas. 130; Clerk r. Blackstock, Holt, 474 ; Hemmenway
1'. Stone, 7 JMass. 58 ; Humphreys v. Guillow, 13 N. H. 385 ; Ladd v. Baker, 6 Foster,
76 ; Barnet i'. Skinner, 2 Bailey, 88 ; Karck v. Avingcr, Riley, 201 ; Groves v. Stephen-
son, 5 Blackf. 584. See Van Alstyne v. Van Slyck, 10 Barb. 383.

(/) See, however. Lord Kenyan, Birkley v. Presgrave, 1 East, 220 ; Leigh, N. P.
e<)4 ; Willnrd, J., De Ridder v. Schermerhorn, 10 Barb. 638.

{m\ Parke, B., King v. Hoare, 13 M. &. W. 505.

252 NOTES AND BILLS. [CH. VH.

but it may be doubted whether a holder who has sued each prom-
isor as a several promisor would be permitted to sue all together
as joint promisors. (w) It is certain that he could not join a part
only of the promisors, as defendants, (o) The rules of court and
of procedure would regulate this matter generally, and they
would probably provide in respect to costs, judgment, and execu-
tion, that injustice and oppression should not be permitted.

(n) See Key v. Hill, 2 B. & Aid. 598; Carne v. Legh, 6 B. & C. 124 ; Lord Eldon,
Ch., Ex parte Brown, 1 Ves. & B. 60.

(o) Bangor Bank v. Treat, 6 Greenl. 207 ; Stori/, J., Minor v. Mechanics' Bank, 1
Fet. 46

CH. VIII.l RIGHTS AND DUTIES OF THE HOLDER. 253

CHAPTER VIII

OF THE HOLDER.

SECTION I.

OF THE RIGHTS AND DUTIES OF THE HOLDER.

By the holder of negotiable paper is meant, in law, the owner
of it ; for if it be in his possession without title or interest, he
is, in general, considered only as the agent of the owner. (7?)

His first and principal right is to demand payment of the note.
And the various methods of payment, and the effect of such pay-
ment, will be considered in the chapter on the Payment of a Note
or Bill.

The right of the owner to transfer his note or bill, by indorse-
ment, or by delivery without indorsement, and the manner of
such transfer, and its effect, will be considered in the succeeding
chapters on Indorsement, and on Transfer by Delivery.

His principal obligation is to make a proper presentment for
acceptance or for payment ; and this topic also will be con-
sidered hereafter.

The subject of this chapter is different from these.

It has already been stated, and variously illustrated, that prom-
issory negotiable paper differs essentially from all other contracts
or instruments in the protection which the holder may claim.
Thus, it has been shown in the chapter on Consideration, that
while the common law refuses to enforce any other contract
which does not rest either on a consideration or on a seal (which
implies consideration), it makes a distinct exception in reference

{p) Pettee v. Prout, 3 Gray, 502, where a note was payable to a person named or
bearer, it was held that the production of the note at tlie trial by the plaintiff, he not
being the party named, was sufficient evidence of his title, although lie was the general
agent of the payee who was alleged in the answer to be the owner of the note See
also infra, p. 255, note s.

VOL. I. 22

254 XOTES AND BILLS. | CH. Mil.

to negotiable promissory paper, by the adoption of the principle
of the law merchant, which forbids inquiry into the consideration
whicli passed between any distant parties, hvjt permits it if the
owner demands pajment from the party from whom he received
the paper.

The general exception to this is when the paper, not being
accommodation paper, would be subject to the defence of want
or failure of consideration, if the action were brouglit by the
promisee against the promisor, and a distant party, deriving title
from the promisee, is chargeable with having notice or knowledge
of this defence when he took the paper. For if so chargeable,
the fact that he paid value for the paper does not give him any
claim. (7)

It is, however, quite certain that no person is entitled to this
privilege ; that is, is entitled to hold the paper without reference
to the original consideration, or to any equities of the defendant,
unless he is a bona fide holder of the paper. And the principal
purpose of this chapter is, first, to ascertain wlio is a bona fide
holder of negotiable paper, for the purpose of this rule ; and,
secondly, what peculiar rights such a holder possesses, or what
rights he has, although the party from whom he derives his title
did not himself possess them.

SECTION II.

WHO IS A BONA FIDE HOLDER OF NEGOTIABLE PAPER.

The definition of such a holder may be, he who acquires the
paper, in good faith, for vahiablc consideration, from one capable
of transferring the i)aper.(r)

Such a holder may have taken the paper in either of two ways ;

(7) Bank of Tennessee i'. Johnson, 1 Swan, 217. Thus, in an action by a partner
as indorsee of a note j^ivcn to another partner, upon a sale by such other partner to
tile maker, of partnership property, the plaintiff stands in no better position to resist a
claim of set-otf than the payee of the note himself would, if the action had been
brouj^iit in his name. Otis v. Adams, 41 Maine, 258. See also cases irifni.

(r) The protection which the law extends to a bona fide holder is not limited to those
who deal in nej;otiable paper as a ])art of their rej;ular and ordinary business, but ex-
tends to every person to whom such paper may be lawfully transferred, and to every per-
son who by the i>ayment of value may actjuire a title. Gould v. Seycc, 5 Ducr, 260, 269

CH. VIII.] BONA FIDE HOLDER OF NEGOTIABLE PAPER. 255

or, as it may be better expressed, at either of two periods of
time ; he may have taken the paper before its dibhonor, or he
may have taken it after its dishonor. In many cases which treat
of this question, no oiie is considered a bona fide hokler wlio did
not take tlie paper before dishonor. But while we shall see that
he who takes it after its dishonor stands upon very dilferent
ground from him who takes it before dishonor, still he may take
it after dishonor in good faith, and thereby acquire valuable
rights. We shall therefore consider these two modes of obtain-
ing the property of the paper separately.

1. Of one who takes the paper before its dishonor, r^i the first
place, it is to be remarked, that there is a. prima facie presump-
tion of law ill favor of every holder of negotiable paper, to the
extent, that he is the owner of it,(s) that he took it for value, (^)
and before dishonor,(M) and in the regular course of business. (y)
But this presumption may be rebutted on either of these points.
And the burden of proof lies on the party who alleges, as his de-
fence against the claim of the holder of the paper, that there
was a fatal defect in the consideration, or in the time of trans-
fer. (z<?) If a note not negotiable is sued upon by a person other /i^^ ^

(s) Pettee v. Prout, 3 Gray, 502 ; Hunter v. Kibbc, 5 McLean, 279 ; Ellicott v Martin, .^^^^y''^, C.
6 Md. 509 ; Warren v. Oilman, 15 Maine, 70 ; M'Gee v. Prouty, 9 Met. 547 ; Picquet v. / ^

Curtis, 1 Sumner, 478. In an action by an indorsee against an acceptor, the fact that
the acceptance was for accommodation does not throw the onus on the plaintiff to show
that he gave value for it. Ellicott v. Martin, supra. And if the person wlio brings the
action is an acceptor or first indorser, and there are subsequent names on the instru-
ment, the law presumes that he has been obliged to pay it, and that lie is riglnfullv in
possession of the instrument. Page v. Lathrop, 20 Misso. 589 ; Hunter v. Kibbc, 5
McLean, 279 ; Dugan v. United States, .3 Wheat. 172. In Henry v. Scott, 3 Ind. 412,
it was iicld that, in a suit by the assignee of a note against the maker, the hitter may
plead and prove that tiie plaintiff holds the notes merely as the trustee of the payee, in
order to let in as a set-off an indebtedness due from the latter to the defendant.

(t) Goodman v. Simouds, 20 How. 343 ; Kelly v. Ford, 4 Iowa, 140. See also
cases infra.

(u) Lewis V. Parker, 4 A. & E. 838 ; Low v. Burrows, 2 A. & E. 4S3 ; Masters v.
Barrets, 2 Car. & K. 715 ; Walker v. Davis, 33 Maine, 516 ; Burnham v. Wood, 8 N. H.
334; Burnham v. Webster, 19 Maine, 232; Ranger v. Cary, 1 Met. 369, Cain v.
Spann, 1 McMullan, 258; Wa.shburn v. Ramsdell, 17 Vt 299; Smith r. Clopton, 4
Texas, 109 ; McMahan v. Bremond, 16 Texas, 331 ; Dickerson v. Burke, 25 Ga. 225.

(v) Walker v. Davis, 33 Maine, 516. See also cases supra.

(w) Cook V. Helms, 5 Wise. 107. In Snyder v. Riley, 6 Barr, 164, Gibson, J., after
stating that the law presumed a note was indorsed before maturity, added : " But the
contra -t of indorsement, being without date and without witnesses, is so peculiarlv sus-
ceptible of a fraudulent practice upon tlie drawer, by precluding perhaps a just defence
on original grounds, that the presumption of fairness primarily applicable to it is not

256 NOTES AND BILLS. [CH. Vm.

tliau the payee, the possession of the note in court at the trial by
tlie phiintiff is not prima facie evidence, as in the case of nego-
tiable paper, that the note was transferred to the plaintiff before
the commencement of the action, and before maturity. (a;)

If the defendant rest upon some want of consideration which
attaches to the holder, the questions of consideration, which we
have already considered, come in. And to what has been already
said, it may be added, that the cases sometimes seem to adopt, as
a test of the rights of the holder, the question whether he " took
the paper in the usual course of business." This phrase was used,
for this purpose in a case before Lord Mansfield, (v/) and many
judges have repeated it; but it seems to be open to some objection.
As a compendious and convenient phrase, it may continue to be
used ; but it defines nothing ; and it would be better if the law
said more distinctly what are the employments of negotiable pa-
per whicli leave to it all its privileges, and what are those which
take them away. This phrase leaves all the real question be-
hind ; for this is in each case, substantially, what is the mercan-
tile character of the transaction. The use of this phrase has
helped to keep open the question, Is the giving of accommoda-
tion paper, or the paying an old debt, or securing an old debt by

only of the slightest kind, but open to he blown away by the slightest breath of suspi-
cion." In this case evidence was offered that the defendant had publicly repudiated the
note, which was not put in suit until after the lapse of three years from maturity ; that
payment was not demanded at tlie place where the note was made [)ayable ; that the plain-
tiff refused to permit the defendant to inspect his books ; and that it did not apjicar that
the note was protested, as is usual in such cases, or notice of disiionor given to charge
the indorser. It was held that all or any of these circumstances, proved or conceded,
would be sufficient to cast the burden of proving the time and the consideration of the
transfer upon the plaintiff. In Hill v. Kroft, 29 Penn. State, 186, the facts that no de
iiiand of payment was made upon the makers at maturity of the note, that it was not
protested for non-payment, and that suit was not brought for more than six months after
it was due, were sufficient to shift the burden of proof. In Ranger v. Gary, 1 Met. 369,
it was held that the burden was not discharged by proof tiiat the note was transferred
and delivered to the plaintiff before dishonor, but was not indorsed until afterwards.
But in McCrcady i'. Cann, 5 Harring. Del. 175, it was held that no inference of irreg-
ularity could arise from the omission to present the note or to protest it, that not being
necessary to charge the drawer.

(r) Barriek v. Austin, 21 Barb. 241. Sec also Birclel)ack v. Wilkins, 22 Penn.
State, 26.

(;/) Miller v. Race, 1 Burr. 457. Sec also Littcll v. Marshall, 1 Bob. La. 51 ; Evan,<?
I'. Smith, 4 Binn. .366. In Hillings i'. Collins, 44 Maine, 271, it was held that the a.ssign-
ment of negotialile paper by ojieration of a bankrupt or insolvent law was not in the regu-
lar course of trade, and that the assignee could acquire only the rights of the ins<jlvent

CH. VIII.] BONA FroE HOLDER OF NEGOTIABLE PAPER. 257

the assignment of negotiable paper, a transaction which tlie law
views as according' to the usage of merchants ? There is cer-
tainly no unity of opinion on tliis point. Thus, the courts of New
York hold that giving paper to secure an old debt — and at one
time they lield, or were thought to hold, that paying an old debt
by assignment of negotiable paper — is not mercantile ; (c) while
the Supreme Court of the United States, Story, J. giving the
opinion, held, on better grounds we think, that these transactions
were mercantile. (a) Tiiat they are constantly occurring among
merchants, and that a considerable portion of the negotiable pa-
per made in business is used in this way, is certain. Nor do
we see that there is anything objectionable, or anything which
courts should seek to restrain or suppress, in this employment
of negotiable paper ; while, on the other hand, it conforms to the
fundamental principle of the law of negotiable paper, that it is
the representative of money, and may be used everywhere as its
substitute. And therefore we are disposed to believe that the
law of this country is tending towards the rule, that Avhether ne-
gotiable paper is sold, or discounted, or indorsed over to pay a
new debt, or for a new purchase, or to secure a new deljt, or an
old debt, or to pay an old debt, it becomes in each case the prop-
erty of the holder, and carries with it all the privileges of nego-
tiable paper, unless there be something in the particular transac-
tion which is equivalent to fraud, actual or constructiN e.(6)

A person cannot acquire the rights of a bona fide holder of a
note by paying the amount thereof for the person from whom it
is due, without his request, express or implied. (c)

If there be fraud of any kind on the part of the holder, or on the
part of the transferrer with any privity or knowledge on the part
of the holder, he can, of course, found no right upon his fraud.

(z) See supra, p. 222.

(a) Swift V. Tyson, 16 Pet. 1.

(b) See supra, pp. 218-228.

(c) Willis V. Hobson, 37 Maine, 403. An expressman received the money to pay
a note which was at a bank in Boston, which money he disposed of in another manner,
and on the last day of grace he called on the plaintiffs and requested them to pay the
note for him, as he was short of funds, which was assented to ; but from the lateness
of the request the payment could not be made that day, and to protect the teller for
delay of payment the firm name of the express company ilnd the name of the plaintiffs
were indorsed on the note, and the next day it was paid by the plaintiffs. Hdd, that
Uiey could not recover, on the ground stated in the text.

Vol. L— R

258 NOTES AND BILLS. [CH. Vm.

So, if, without actual fraud, there is a want or failure of con-
sideration, which would operate as a defence if the transferrer
had sued, the transferee chargeable with notice or knowledge
thereof is open to the same defence, if it be not accommodation
paper. And this rule has been carried beyond the limits even
of constructive fraud. For it has been held that the holder of a
note had no claim against parties to it, if the note were open to
a defence while in the hands of his transferrer, and the nature
01 the paper or the circumstances of the transaction by which ho
became the holder showed that his ignorance of the defence arose
from a want of reasonable care and diligence. But the " good
faith " required of the holder certainly does not now require rea-
sonable care and diligence on his part to ascertain the right of the
transferrer to give him the paper. There was, however, a period,
though not a long one, when this requirement was a part of the
English law of negotiable paper. (^) Then gross neghgcnce was
adopted as the rule.(e) Afterwards gross negligence was held
merely to be evidence of mala fides, and not the thing itself.
And now, to use the emphatic words of Lord Denman, the last
remnant of that doctrine is sliaken off.(/) It may now be said
to be the law in that country, (g) that the holder of negotiable
paper does not lose his rights by proof that he took the paper
neghgcntly, nor unless fraud be shown.

Tlie doctrine of Gill v. Cubitt has been followed in several
cases in this country, (A) but on principle and on high authority

(d) III Gill V. Cubitt, 3 B. & C. 466, the question was held to be, whetlicr the plain-
tiff had taken the bill under circumstances which ought to have excited the suspicion
of a prudent and careful man. See also Down ;;. Hailing, 4 B. & C. 3.30 ; Snow v.
Peacock, 2 C. «& P. 215; Beckwith v. Corrall, 2 C. & P. 261 ; Strange i-. Wigncr, 6
Bing. 677; Hatch v. Scarles, 2 Small & G. 147, 31 Eng. L. & Eq. 219.

(e) Crook v. Jadis, 5 B. & Ad. 909 ; Backhouse v. Harri-son, id. 1098.

(f) " Gross negligence may be evidence of mala Jides, but it is not the same thing.
We have shaken off the last remnant of the contrary doctrine." Per Lord Denman,
C. J., in Goodman v. Harvey, 4 A. & E. 870, 6 Ncv. &, M. 372. It is a question for
the jury whether the party taking the bill was guilty of bad faith. See Cunliffe v.
Booth, 3 Bing. N. C. 821. See Crook v. Jadis, .') B. & Ad. 909, per Pattesou, J.

(g) Miller v. Race, 1 Burr. 452; Lawson v. Weston, 4 Esp. 56; Goodman v. Ilat^
vey, 6 Xev. & M. 372 ; Rai)hacl v. Bank of England, 17 C B. 161, 33 Eng. L. & Eq.
276; Uihcr v. Rich, 10 A. & E. 784; Arbouin v. Anderson, 1 Q B 498.

(/() Pringlc V. Phillips, 5 Sandf. 157 ; Ilolbrook i-. Mix, I E. D. Smith, 154 ; Hall
V. Hale, 8 Conn. .336 ; Sandford v. Norton, 14 Vt. 228 ; Nicholson ;;. J'atlon, 13 La. 43 ;
Smith V. Mechanics', &c. Bank, 6 La. Ann. 610 ; Grcncaux v. Wheeler, 6 Texas,

CH. Vni.] BONA FIDE HOLDER OF NEGOTIABLE PAPER. 259

we incline to the opinion tliat the rule of the late English cases
is better adapted to the free circulation of uegotiable paper, and
the true interests of trade. (i)

But it must still be true, that while gross, or even the gross
est negligence, is a different thing from fraud, the negligence
may be such, and so accompanied, as to afford reasonable and
sufficient grounds for believing that it was intentional and
fraudulent, (j)

Thus, although notice or knowledge of defeating circumstances
may not be proved, the facts of the case, the relations between the
parties, and their method of dealing, may be such as to show

515 ; Cone v. Baldwin, 12 Pick. 545. In Merriam v. Granite Bank, 8 Gray, 254, Shaw,
C. J., after stating the general rule, said : " But this rule is to l>e taken with a strict
observance of the qualification, that the uegotiable security be taken in the due course
of business, without notice, or reasonable cause to suspect, that the party from whom
it is taken has not the full title which the possession of the security and the names
borne upon it naturally import." In this case a promissory note indorsed in blank was
accidentally left by the owner in a broker's office. The broker was indebted to a bank
for money lent, payable on demand, and he was accustomed to give the bank as col-
lateral security for such loans his own memorandum checks, payable on demand, and
indorsed notes as collateral security. The note in question was found among these
notes and checks, but there was no evidence of the manner in which it came there.
The fomier president of the bank testified, that, from his knowledge of the business of
the brokers in question, and from what they had often told him, he supposed that the
collateral notes were not notes which the brokers had purchased or discounted, but
notes on which they had made advances, and which they held as collateral. It Tvas
held, under these circumstances, that the bank took the notes on the credit of the
brokers merely, and the taking was under such circumstances as to put them on their
guard to inquire into the title of the brokers.

(i) Matthews v. Poythress, 4 Ga. 287, 306 ; Ellicott v. Martin, 6 Md. 509. This
question was considered at length in the recent case of Goodman v. Simonds, 20 How.
343, 363, in which it is said, that if the defect or infirmity in the title of the instrument
appears on its face at the time of transfer, the question whether the person who took it
had notice or not is generally a question of construction for the court ; but that where
it is proposed to impeach the title of the holder by proof of facts and circumstances
outside of the instrument itself, the defendant is bound to prove notice or knowledge
of such facts, and mere want of care and caution on the part of the holder is not suffi-
cient. In Crosby v. Grant, 36 N. H. 273, the point was not decided, but it was held,
that, if a person who took a note under circumstances of suspicion such as ought to
put him on inquiry, took it subject to equities, yet the facts that the note was taken on
the last day of grace from a bank in Boston, Massachu-setts, where it had been dis-
counted, the maker residing at Great Falls in New Hampshire, the full amount being
paid to the banks, and at the trial the indorsements of several parties appeared to be
erased from the note, leaving upon it that of the payee alone, do not constitute a case
for the application of this doctrine. See also Worcester Co. Bank v. Dorchester, &c.
Bank, 10 Cush. 488.

{j) See cases cited supra, p. 258.

260 NOTES AND BILLS. [CH. Vm.

that there was either knowledge, or an intentional and careful
avoidance of knowledge ; this we should say must have the same
effect in law as knowledge.

But evidence of notice to, or of knowledge on the part of the
holder, of facts which would defeat his recovery, must not he
ambiguous. (A;) The negligence of the loser is, however, no ex-
cuse for the dishonesty of the receiver, and therefore a failure
to give public notice of the loss of a bill or note will not pre-
clude the owner from showing that the holder took it viala fide.
But the negligence of the one may be an excuse for the negli-
gence of the other, and might authorize him to defend himself
on the maxim. Potior est conditio possidentis. {I)

If the defendant is compelled by due process of law to pay the
note to another party, the plaintiff who holds the note cannot
recover it of him. Thus, if the paper be not negotiable, and
trustee process is served upon the promisor,(m) or if the paper
be negotiable, and such process is served in States where it may
be served in such cases, the promisor must pay the plaintiff in
the trustee process, and this would be a defence if sued by the
holder. («) But if the paper be negotiable, and such attach-
ment is not allowed by statute, the rights of a bona fide holder
are not affected by such an attachment, (o) Although it is made
before the transfer to tlie holder, the doctrine of lis pendens^
viz. that whoever purchases property which is in litigation at
the time takes it subject to any decree which may be made in
respect to it in the pending suit, does not apply to negotiable
paper. (/>)

{k) " It must clearly appear that the indorsee was apprised of such circumstances a3
would have avoided the note in the hands of the indorscr." Per Wooclburi/, J., Perkins
I'. Challis, 1 N. H. 254.

(/) Per Best, C. J., in Snow v. Peacock, 3 Bing. 406, 411, 11 J.B. Moore, 286. See
also Matthews v. Poythress, 4 Ga. 287.

(w) Cushman v. Hayncs, 20 Pick. 132.

(n) Peck V. Maynard, 20 N. II. 183; Thompson v. Carroll, 36 N. H. 21 ; Steams
V. Wrislcy, 30 Vt. 661 ; Amoskcag Manuf. Co. v. Gibbs, 8 Foster, 316; Griswold v.
Davis, 31 Vt. 390.

(o) Kiimr V. Ehler, 18 Pcnn. State, 388; Ludlow r. Bingham, 4 Dallas, 47 ; Huff
r. Mills, 7 Ycrg. 42; Ilinsdill r. SafTord, 11 Vt 309 ; Little v. Hale, id. 482. In Ver-
mont, by a statute passed in 1841, negotiable paper is subject to attachment until notice
of the tnin'<fcr is given. A statute passed in 18.52 exempted from the operation of this
statute paper discounted at banks. Griswold v. Davis, 31 Vt. 390.

(p) Hill V. Kroft, 29 Pcnn. Sutc, 186 ; Winston v. Wcstfcldt, 22 Ala. 760.

CH. Vni.] BONA FIDE HOLDER OF NEGOTIABLE PAPER. 261

The knowledge of a defect or defeasance will not destroy the
riglits of the transferee, unless it be a defect or defeasance which
would have destroyed the rights of his transferrer. Tlius, if A
makes a note to B, who indorses it for value to C after the consid-
eration has wholly failed, but before its maturity, and B has no
knowledge of this failure, but C has such knowledge, he will nev-
ertheless recover on the note, because he stands in B's place, and
has all B's rights. And therefore any of C's indorsees, immedi-
ate or distant, will be unaffected either by C's knowledge or by
their own.(^) And knowledge on the part of the holder, at the (j^c-/~~S-^
time he took the note, that it was not to be paid on a specified ^.c.j.^Zh-^<.
contingency, is not sufficient to defeat his right to recover, al- /^ .
though the contingency had then happened, if he was ignorant ^- ^ ^
of this fact.(r) So, too, it has been held that a person who ac- "^ ^ ^^"^^ '
quires a good title to a note, by taking it in ignorance that the ^^_^__
agent making it had exceeded his authority, may take a renewal
of the note from the agent, although at that time he knew that
the original note was given without authority. (s)

If the maker or other person liable on negotiable paper pays it
before it is due, he is undoubtedly liable upon it to a bona fide
holder for value. (^)

2. Where the paper is taken after dishonor. We prefer this
phrase to the more usual phrase " after maturity " ; for dishonor
and non-payment at maturity are not necessarily the same thing.
For example, we shall see that a note on demand is mature and
demandable at once. But it is not dishonored until a reasonable
period of non-payment has elapsed.

If negotiable paper be taken after dishonor, it loses a large
part of its peculiar privileges, because only so long as it may be

(7) Hascall v. Whitmore, 19 Maine, 102; Prentice v. Zane, 2 Grat. 262; Boyd v.
McCann, 10 Md. 118; Howell v. Crane, 12 La. Ann. 126; Watson v. Flanagan, 14
Texas, 354.

(r) Adams v. Smith, 35 Maine, 324. See also Ferdon v. Jones, 2 E. D. Smith,
106 ; Davis v. McCready, 4 E. D. Smith, 565.

(s) Hopkins v. Boyd, 11 Md. 107. The original note in this case was signed by one
partner in the firm name. It was given out of the course of the partnership business,
and without the knowledge of the other partner. The plaintifif did not know this at the
time he took the note ; but he was informed of the fact before the note was renewed.
It was held that his knowledge was no defence to an action on the renewed note.

{I) See cases cited p 230, note w; also, Webster v. Lee, 5 Mass. 334; Wheeler r.
Guild, 20 Pick. 545 ; White v. Kibling, 11 Johns. 128 ; Brown v. Davies, 3 T. R..80;
Dod V. Edwards, 2 Car. & P. 602.

262 NOTES AND BILLS. [CH. Vm.

regarded as certain to become so much money at a definite pe-
riod, is it the representative or equivalent of money.

It may still be transferred, either by mere delivery, or by in-
dorsement and delivery, according to the character of the paper
And if so transferred for value, the transferee acquires against
all previous parties all the rights which his transferrer held
against them. For it is still so far negotiable as to admit of this
transfer,(?^) but is not, after dishonor, so far negotiable, that
equities of defence unknown to the taker will not defeat it in his
hands.

We will proceed to consider the question, What constitutes the
dishonor of negotiable paper ? And the general definition of this
may ))e, the non-payment of negotiable paper when it should be
paid.(i;) It will follow from this definition, that the dishonor may
come from non-payment at a time certain, if the paper is so paya-
ble. Or from a demand and refusal, if the paper were payable on
demand. Or from such a lapse of time, if the paper were paya-
ble on demand, that the law considers that the paper ought to
have been ])aid, and that every one is bound to suppose tliat the
paper must have been demanded and refused somewhere within
that time. If the makers of a negotiable instrument negotiate it
after it is due, it would seem that they could not set up, in de-
fence to an action by a bona fide holder, want or failure of con-
sideration in the inception of the instrument. (?6')

When paper is payable at a certain time, and in the case of
bills payable at sight where these have grace, the last day of
grace is of course the time at which non-payment operates dis-
honor.

The question may arise, on what part of the day does dishonor
fall upon tbe note by non-payment. We should say, not initil
the close of business hours in our cities, and not until the close

(h) "A note docs not cease to he ncf^otiablc, because it is overdue. The promisee,
hy liis indorsement, may still give a good title to the indorsee." Per Slmw, C. J., in
Baxter v. Little, 6 Met. 7. Sec also Powers v. Nelson, 19 Misso. 190, .and cases
passim.

{v) In Fitch v. Jones, 5 Ellis & B. 238, 32 Eng. L. & Eq. 134, a note bore date
Jan. I, 1854, payable in two months. Across the note was written, in the hand of the
maker, " Due 4th March, 1855." The note was in fact made Jan. 1, 18£5, and was in-
dorsed to the plaintifr before Miirch 1, 185.^). Ihhl, that the note was not at this fimo
dishonored.

{w) Boehin v. Sterling, 7 T. R. 423.

CH. ^^II.] BOXA FIDE HOLDER OF NEGOTIABLE PAPER. 263

of the day where no usage Ihnited the biismess hours, — unless
there had been previously an actual and positive refusal to pay
the paper, and notice or knowledge thereof on the part of the
taker.

It is obvious, however, that cases of this kind might differ
much in their facts, and in the legal inferences from them. Tlius,
if the holder of a note offers it for sale at nine o'clock of the
day of its maturity, on the ground that he needs the money at
once, and shall not otherwise have it until the banks close, or
until they open next morning, and the buyer believes him, he
would not be aflfectod by the fact of a previous refusal to pay on
that morning, even if he gave less than the face, because he
might calculate the chances of the promisor's solvency. But if
he bought it ten minutes before the last minute when it could be
paid, his conduct would be much more open to the inference that
he knew the paper had been refused, or would be unpaid, and
took his risk of getting the money ; and if the paper had then
been refused, he must be regarded as the taker of dishonored
paper. Perhaps, however, the simpler and better rule may be
this. As the payer has all the business hours of the last day in
which he may pay the paper, all other persons may suppose it
unpaid, and purchase it in that belief, until the close of those
hours, (rt)

3. Of the dishonor of paper payable on demand. Bills on
sight, and bills or notes payable on demand, have no dcfmite
time at which non-payment at once operates dishonor. Of this
kind of paper three things must be said.

One is, that a reasonable time must elapse before mere non
payment dishonors the bill or note. What this time is, has not
been, and cannot be, fixed by any definite and precise rule. One
day's delay of paper on demand certainly would not dishonor it ;
five years certainly would. And in each case, how many days, or
weeks, or months, are requisite for this effect, must depend upon
the test, whether so long a time has elapsed, that it must be in-
ferred from the particular circumstances and the general conduct

(.r) In Crosby v. Grant, 36 N. H. 27.3, it was held that a note payable generally, and

not at any particular place, might be bought from a bank where it had been discounted,

on the last day of grace, and the holder protected. But in Pine i*. Smitii, 11 Gray,

the same point was decided the other way, on grounds of the sufficiency of which

we have some doubt.

264 NOTES AND BILLS. [CH. VIH.

of business men, both of which should be considered, that the
paper in question must have been intended to be paid within this
period, and, if not paid, must have been refused. (^) Tliere are

(y) Muilman r. D'Eguino, 2 H. Bl. 565 ; MuUick r. Radakissen, 9 Moore, P. C. 46,
28 Ent;. L. & Eq 86 ; Shute v. Robins, Moody & M. 133 ; Mellish i-. Rawdon, 9 Ring.
416; Martin v. Winslow, 2 Mason, 241 ; Wallace v. Agrj, 4 Mason, 336, 5 Mason,
118; Ayinar v. Beers, 7 Cowen, 705; Robinson v. Ames, 20 Johns. 140; Gowan ».
Jackson, 20 Johns. 176; Dumont v. Pope, 7 Blackf. 367; Lord r. Chadbourne, 8
Greenl. 198; Perry v. Green, 4 Harrison, 61 ; Lockwood v. Crawford, 18 Conn 361 ;
Culver V. Pari.sh, 21 Conn. 408 ; Atlantic DeLaine Co. v. Tredick, 5 R. I. 171 ; Carll
V. Brown, 2 Mich. 401 ; M'Kinney v. Crawford, 8 S. & R. 351 ; Emerson v. Crocker,
5 N. H. I.i9; Odiorne v. Howard, 10 N. H. 343; Carlton v. Bailey, 7 Foster, 2.30;
Parker I'. Tuttle, 44 Maine, 459; Dennen v. Haskell, 45 Maine, 431 ; Jerome v. Steb-
bins, 14 Calif. 457 ; Ayer v. Hutchins, 4 Mass. 370 ; Thurston v. M'Kown, 6 Mass. 428 ;
Hemmenway v. Stone, 7 Mass. 58 ; Field v. Nickcrson, 13 Mass. 131 ; Stockbridgc v.
Damon, 5 Pick. 225; Thompson v. Hale, 6 Pick. 259; Sylvester v. Crapo, 15 Pick.
93; Stevens v. Bruce, 21 Pick. 193. American B.ank ». Jenness, 2 Met. 288; Ran-
ger V. Cary, 1 Met. 369 ; Knowles v. Parker, 7 Met. 30 ; Seaver v. Lincoln, 21 Pick.
267 ; Weeks v. Pryor, 27 Barb. 79.

In Furman v. Haskin, 2 Caines, 369, a note payable on demand was considered dis-
honored after eijrhtecn months from the time when it was given ; in Sice v. Cunning-
h.am, 1 Cowen, 397, after five months; in Field v. Nickerson, 13 Mass. 131, after eii:ht
months ; in Losee v. Dunkin, 7 Johns. 70, after two months ; in Martin v. Winslow, 2
Mason, 241, after seven months; in Camp v Scott, 14 Vt. .387, after two months ; in
Atlantic DeLaine Co. v. Tredick, 5 R. I. 171, after thirteen months; in Emerson ».
Crocker, 5 N. H. 159, after ten months; in Carlton v. Bailey, 7 Foster, 230, after seven
months and a half; in Parker v. Tuttle, 44 Maine, 459, after four months ; in Jcromo
r. Stebbins, 14 Calif. 457, after thirteen months ; in Loomis v. Pulvcr, 9 Jolms. 244,
after two years ; in American Bank v. Jenness, 2 Met. 288, after eight months.

In Avmar v. Beers, 7 Cowen, 705, a delay of twenty-nine days was not considered
unreasonable under the circumstances of the case ; so in Van Hoesen v. Van Alstyne,
3 Wend. 75, a delay of two or three months ; in Robinson v. Ames, 20 Johns. 146, a
delay of seventy-five days ; in Wetliey v. Andrews, 3 Hdl, 582, a delay of four or five
weeks; in Lockwood v. Crawford, 18 Conn 361, a delay of sixty days; in Dennett v.
Wyman, 13 Vt. 485, a delay of two days ; in Sanford v. Mickles, 4 Johns. 224, a delay
of five months ; in Carll v. Brown, 2 Mich 401, a delay of twenty-five days; in Den-
nen V. Haskell, 45 Maine, 430, a delay of thirty days; in Ranger v. Cary, 1 Met. 369,
a delay of one month.

The question of reasonable time is well stated by Parker, C. J , in Field v. Nick-
erson, 13 .Mass. 131. After referring to the analogy generally recognized in this respect
between a note payable on deman<l and a bill payable at .sight, so that, as in the latter
case the holder must present his bill for acceptance within a rca.sonai)le time, in order
to charge the drawer, bo in the former, the indorsee must make demand of jiayment
on the promisor within a reasonable time, in order to charge the indorser, the learned
judge says: " And we are of opinion that this is the correct doctrine on the subject.
For as, on the one hand, it can hardly be supposed that the indorser and indorsee,
when they make their contract, contemplato a liability on the indorser, unless reasona-
ble pains should l)e taken to procure payment of the actual debtor ; so, on the otner,
we do not think it enters into their calculations that, as between them, the note should
be considered due when drawn in such manner as to require, in all cases, a doman.J

CH. VIII.] BONA FIDE HOLDER OF NEGOTIABLE PAPER, 265

two classes of cases in which this question of reasonable time
has arisen ; the one, as to what is a reasonable time to make a
demand on a note payable on demand, or a presentment of a bill

the instant, or the same day, it may have been indorsed. As it respects the promisor
himself, he is answerable immediately to the promisee or indorsee ; and lie may be
sued the instant he has given his signature, even without a previous demand. But the
condition on which tiie indorser is liable is, that payment shall be demandud witiiin a
reasonable time, and the earliest notice possible given of refusal. This time may,
therefore, vary according to the circumstances and situation of tlie parties, to be deter-
mined by tlic jury under tlie direction of the court. It is impossible to tix any precise
period, each case depending upon its own circumstances., as in the case of a hill pay-
able at sight, whicii must be presented to the drawer as soon as can conveniently i)e
done, taking into view all the circumstances of the iiolder and the drawer." In Seaver
V. Lincoln, 21 Pick. 267, iS/utw, C. J. said, that ''one of the most difficult questions pre-
sented for the decision of a court of law is, what shall be deemed a reasonable time
within which to demand payment of the maker of a note ])ayable on demand, in order
to charge tlie indorser. It depends upon so many circumstances to determine what is
a reasonable time in a particular case, that one decision goes but little way in establish-
ing a precedent for another."

In Massachusetts it is provided by statute that, upon a promissory note payable on
demand, a demand made at the expiration of sixty days from the date thereof, without
grace, or at any time within that term, shall be deemed to be made within a reasonable
time ; but no subsequent presentment and demand shall charge the indorser. Gen.
Stats. I860, c. 5.3, ^ 8. This statute does not apply to the case of such a note indorsed
after this term of sixty days from its date has elapsed, but in such case it seems that a
demand on the maker is within a reasonable time, if made within a like term of sixty
days from the indorsement of the note. Rice v. Wesson, 1 1 Met. 400.

And in respect to bills of exchange payable on or after sight, in some foreign na-
tions there are positive enactments fixing the times of presentment with reference to
the places where the bill is drawn, and where the drawee resides, as in the French
Code de Commerce, Lib. 1, pt. 8, § 11.

In England it has been held that a negotiable note payable on demand is not dishon-
ored by mere lapse of time. Something more must be brought to the knowledge of the
indorser to charge him with the equities of the original parties. Barough v. White, 4
B. & C. 32.5 ; Brooks v. Mitchell, 9 M. & W. 15. In the latter case it was held that a
note, payable on demand with interest, made in 1824, and indorsed in 183S, and upon
which no interest had been paid for three years immediately preceding the indorsement,
was not subiect to an equitable defence as between the original parties. It was urged in
that case, that the non-payment of interest for three years was sufficient to put the in-
dorsee upon inquiry. But Parke, B., expressing the opinion of the court, said : "I
cannot assent to the arguments urged in behalf of the plaintifls. If a promissory note
payable on demand, is after a certain time to be treated as over-due, although payment
has not been demanded, it is no longer a negotiable instrument ; but a promissory
note, payable on demand, is intended to he a continuing security."

A promissory note payalile on demand is probably a species of security rarely used
wi England ; and when it is used, it is regarded as a continuing security until the holder
suall see fit to render it due by a demand. Here it has long been in use, and the rules
applicable to it have been fixed after the analogy of bills payable at sight. See re-
ru-u-ks of Shaw, C. J., in Sylvester v. Crapo. 15 Pick. 92, 94.

VOL. I. 23

266 NOTES AND BILLS. [CH. Vm.

drawn payable on or after sight, in order to charge an indorser ;
and the other as to the length of time in which such a note or
bill would be held to be dishonored, and subject to those grounds
of defence which would have been open to the maker of tlie note
or the drawer of the bill in a suit by the payee. (c)

The rule requiring the presentment of the bill or note within
a reasonable time applies in the same way, though the drawer or
indorser has sustained no actual loss by the delay, and has con-
thiued solvent up to the time of the presentment. (a) In deter-
mining this question of reasonable time, it is proper to look to
tlie interests of the holder of the paper, as well as of the drawer ;
and accordingly, in case of a foreign bill, the rate of exchange
is a circumstance that may be considered in determining whether
the holder has delayed unreasonably to put it in circulation or to
send it forward to the drawee ; for it cannot be required of him
to part with it instantly under all disadvantages. (/>) A delay

(z) Sec Ranger v. Gary, 1 Met. 369, 373, per Deivei/, J.

(a) Carter i-. Flower, 16 M. & W. 743 ; Mullick v. Eadakissen, 9 Moore, P. C. 46,
28 Eng. L. & Eq. 86. In the latter case. Baron Parke said, on this point: " The court
below decided, that the solvency of the drawers and the want of proof of actual loss by
laches constituted no answer to the objection of laches. We think they were right.
There is no trace of such a qualification in the ela!)orate judgment of Lord Chief Jus-
tice Tindal, in Meilish r. Rawdon, 9 Bing. 417, in which the circumstances which con-
stitute a reasonable delay are fully discussed ; no mention is made of the insolvency of
the drawer, subsc(juent to the drawing, although it did occur in that case, or some loss
by the drawer, being an essential condition to the application of the rule laid down ;
and in Muilman v. D'Rguino, 2 H. Bl. 565, it was clear that the failure of the
drawer caused no damage to the plaiiititf, being before the time that the l)ill could
possibly iiavc been presented in India; yet tliat circumstance was not mentioned as
dispensing with the obligation to present in a reasonable time ; and, with respect to all
bills of exchange payable after date, it is fully settled, that neither the want of present-
ment at the time the bill is due, nor the want of due notice, arc excused because the
drawer has continued solvent, or the holder incurred no loss by non-prcs(;ntment or
want of regular notice. This point was fully considered in the case of Carter v.
Flower, 16 M. & W. 743, and wc believe admits of no doubt; and wc agree with the
court below, that the continued solvency of the drawers does not prevent the applica-
tion of the rule that the bill must be presented in a reasonable time, with reference to
the interest of the drawer to put the bill into circulation, or the interest of the drawee to
have the bill speedily presented " In this resjiect a check dillcrs from a bill of ex-
change, and the doctrine that the drawer of a check continues liable unless ho has
nctuiilly sustained a loss from the delay of presentment has no application in the case
of a bill of exchange.

(b) Meilish V. Rawdon, 9 Bing. 416 Timhl, C. J., delivering the opini.»n of the
court, in refi-rring to the exjiression used by Ihtller, ,]., in MniliTnin v. D'Kg'iino, 2 H.
Bl. 565, that "if, instead of putting it in circulation, tlie luildcr were to lo'k it up for
any length of time, I should say that he was guilty of laches," said : " ' To lock the

on. Vin.] BONA FIDE HOLDER OF NEGOTIABLE PAPER. 267

arising from tlio sickness of the holder, or from other accident,
may be properly considered. (c) If the bill be kept in circulation,
its final presentment may be delayed as long as the reasonable

bill up for any len,<,nh of time ' docs not and cannot mean, that keeping it in his hands
for any time, however short, would make him guilty of laches. It never can be re-
quired of him, instantly on the receipt of it, under all disadvantages, either to put it
into circulation, or to send it forward to the drawee for acceptance. To hold the pur-
chaser bound by such an obligation would greatly impede, if not altogether destroy, the
market for buying and selling foreign bills, to the great injury, no less than to the in-
convenience, of the drawer himself. For, if he has no opportunity to realize his bill
by sale at home, he can only obtain the amount by sending it out to a correspondent
at the place upon which it is drawn, incurring thereby delay, expense, and risk ; and if
the buyer is not to be allowed a reasonable discretion as to the time of jiarting with the
bill, kovf can the drawer expect to find a ready sale? The meaning of the expression
above referred to is, and indeed the very form of expression denotes it, that he must
not lock the bill up for an indefinite time ; that there must be some limit to its being
kept from circulation ; and what limit can there be, except that the time during which
it is locked up must be reasonable ? But what is or is not reasonable for that purpose,
a jury must, with the assistance of the judge, under all the circumstances of the par-
ticular case, determine." Like considerations were entertained by the Court of the Privy
Council in the case of MuUiek v. Radakissen, 9 Moore, P. C. 46, 28 Eng. L. & Eq. 86,
on appeal from the Supreme Court at Calcutta. In this case, a bill of exchange was
drawn at Calcutta, on the 16th of Febmary, 1848, by the respondents, on Dent & Co.,
at Hong Kong, payable sixty days after sight, and indorsed by the respondents to
MuttyUHl Seal or order. MuttyloU Seal, in consequence of the depressed state of the
money market at Calcutta and the unsalableness of bills on China at that time at
Calcutta, kept the bill for five months and nine days, and then sold it to the appellant,
who did not present it for acceptance at Hong Kong till the 24th of October in that
year, when Dent & Co. refused to accept it. It was held that the presentation of the
bill for acceptance was not made within a reasonable time, and that the respondents,
the drawers, were discharged. Baron Parke, pronouncing the judgment of the court,
said : " The court (at Calcutta) assumed, that the correct principle was laid down fully
in the cases of Mellish v Rawdon, 9 Bing. 416, which is in accordance with the prior
cases of Muilman v. D'Eguino, 2 H. Bl. 565, and Fry v. Hill, 7 Taunt. .397, that in
determining the question of 'reasonable time ' for presentment, not the interests of the
drawer only, but those of the holder, must be taken into account; that the reasonable
time ex|)ended inputting the bill into circulation, which is forthe interest of the holder,
is to be allowed ; and that the bill need not be sent for acceptance by the ver}- earliest
opportunity, though it must be sent without improper delay. The court, in acting
upon that principle, concluded from the evidence that the bill was improperly detained
for a portion at least of the time which elapsed between the 16th of February, 1848,
when it was drawn, and the 26th of July, when it was indorsed over by MuttyloU Seal,
the then holder, to the plaintiff. They thought that the evidence proved, that for the
whole of that time, a period of more than five months, bills on China were altogether
unsalable in Calcutta ; that such was the permanent and regular state of the market;
and that although, if there was a reasonable prospect of the state of things being better
in a short time, the holder would have had a right, with a view to his own interests,

268 NOTES AND BILLS. [CH. Vm

convenience of the successive holders may require, (c?) If a note
payable on demand was intended as a continuing security, and
not for commercial purposes, this is a circumstance which greatly
extends the time within which one may take it without being
made subject to the equities of dishonored paper, (e) This inten-
tion may sometimes be inferred from the phraseology of the note ;
and the fact that it bears interest has sometimes been considered
as indicating such an intention. (/) A note transferred after it
is due is considered as a note payable on demand, as regards the
time within which a demand must be made in order to charge
the indorser.(g')

The reasonableness of the time for presentment of bills ou
sight, and of bills and notes payable on demand, was formerly
thought to be wholly a question of fact for the determination of
the jury ; (A) but the expediency of having a fixed rule of law

to keep the bill for some time, he had no such right when there was no hope of tlie
amendment of that state of things ; and we are of opinion, that the evidence fully jus-
tified this conclusion from it, and that the court, deciding on facts as a jury, were per-
fectly right. Indeed, we should not have reversed their judgment on a matter of fact,
unless we were quite satisfied they were wrong, their knowledge of local circumstances
and the character and appearance of the witnesses enabling them to form a more cor-
rect oijinioii than a tribunal of appeal in this country possibly could. But in our opin-
ion they drew a proj)er inference from the evidence in the case."

In Straker v. Graham, 4 M. & W. 721, where a bill was drawn in duplicate at Car-
bonear, in Ninvfoundland, on the 12th of August, upon a firm in England, p.iyablo
ninety days after sight, and it was not presented for acceptance until the 16th of No-
vember, it was held, in absence of proof to explain the delay, that the bill was not
presented within a reasonable time.

(d) Goupy V. Harden, 7 Taunt. 159.

(e) Vreeland v. Hyde, 2 Hall, 429

(/) Baroiigh v. White, 4 B. & C. 32.5, 6 Dow. & R. 379 ; Vreeland r. Hyde, supra;
Wethey v. Andrews, 3 Hill, 582 ; Lockwood i-. Crawford, 18 Conn. 361. In the latter
case, Churcit, C. J. tliought the fact of the note's bearing interest an important one, na
indicating a continuing note. But the nu're circumstance that it bears interest docs
not take it out of the general rule, that dishonor is to be presumed afier a reasonable
time. Perry v. Green, 4 Harrison, 61. Sec also Agawam Bank v. Strever, 18 N. Y.
502, 513. In Weeks v. Pryor, 27 Barb. 79, the court thought it evident, from the fact
that a note payable on demand bore interest, that an immediate demand of payment
was not contemplated by the parties.

{ij) Van Hoesen v. Van Alstyne, 3 Wend. 75; Sanborn »•. Southard. 25 Maine,
409; Branch Bank of Montgomery i;. Gaffney, 9 Ala. 1.53; Gray v. Bell, 3 Hich. 71 ;
M'Kinncy v. Crawford, 8 S. & R. 351 ; Brenzer v. Wightman, 7 Watt.s & S. 264 ; Camp-
bell V. Carman, 1 Philad. 283; Tyler v. Young, 30 Penn. State, 143; Beebe v.
Brooks, 12 Calif .308.

(/i) Muilman v. D'Kguino, 2 H. 151. .565; Fry v. Hill. 7 Taunt. 397; Goupy v.
Harden, 7 Taunt 159; Shute r. Rubins, Mooily & M. 133; Hoar v. Da Cosia,

CH. VIII.] BONA FIDE HOLDER OF NEGOTIABLE PAPER, 269

ill place of the uncertain and contradictory decisions of juries,
in a matter of so much importance in mercantile affairs, has
finally led to the adoption of the principle which may now be con-
sidered a settled one, — that, when the jury has determined the
facts of the case, tlie reasonableness of the time is a question of
law for the court to determine or to direct the jury upon,(i)
Practically, in very many cases, it is a mixed one of law and
fact, to be decided by the jury, acting under the direction of the
judge, upon the particular circumstances of the case.(y)

2 Stra. 910; Manwaring v. Harrison, 1 Stra. 508; Straker v. Graham, 4 M. & W.
721 ; Hilton v. Shepherd, 6 East, 14, note ; Hopes v. Alder, 6 East, 16, note.

(0 Moule V. Brown, 5 Scott, 694, 4 Bing. N. C. 266 ; per BulleT, J., in Tindal v.
Brown, 1 T. R. 169 ; Medcalf ?;. Hall, 3 Doug. 113 ; Appleton v. Swcetapple, 3 Doug.
137 ; Darbishire v. Parker, 6 East, 3, per Lawrence, J. ; Vreeland v Hyde, 2 Hall,
429; Furman v. Haskin, 2 Caines, 369 ; Sice v. Cunningham, 1 Cowen, 408; Ay-
mar V. Beers, 7 Cowen, 705 ; Van Hoesen v. Van Alstyne, 3 Wend. 75 ; Dennett v.
Wyman, 13 Vt. 485 ; Sylvester v. Crapo, 15 Pick. 92, per Shaw, C. J. In Barbour
V. FuUerton, 36 Penn. State, 105, the court, though admitting the general rule, that,
where the facts are, undisputed, what is a reasonable time is a question of law, were of
opinion that in case of a note payable on demand, made in another State, and governed
by its laws, this question is one of fact for the jury, under proper instructions from the
court.

(j) In Mellish v. Rawdon, 9 Bing. 416, Tindal, C. J., delivering the judgment of the
court, said : " Whether there has been in any particular case reasonable diligence used,
or whetJier unreasonable delay has occurred, is a mixed question of law and fact, to be
decided by the jury, acting under the direction of the judge, upon the particular cir-
cumstances of each case." On a similar point respecting notice. Lord Mansfield, in
Tindal v. Brown, 1 T. R. 167, said : " What is reasonable notice is a question partly
of fact, and partly of law ; it may depend in some measure on facts ; such as the dis-
tance at which the parties live, the course of the post, &c. ; but wherever a rule can be
laid down with respect to their reasonableness, that should be decided by the court, and
adhered to for the sake of certainty." This case was sent back to the jury, on nearly
the same evidence as was at first presented, and the jury having again returned a ver-
dict contrary to the direction of the court, the court again set it aside, and ordered a
third trial. In Wyman v. Adams, 12 Cush. 210, 214, Shaw, C J., referring to the last-
mentioned case, said : " This, we believe, has been ever since considered as settling
the law definitively, that what is reasonable time for making demand on the promisor
and giving notice of dishonor to the indorser, is a question of law. But this rule is
practically carried into effect, by stating to the jury what is rca.sonahle time, in a case
where the evidence is clear, certain, and uucontroverted, and by setting aside their ver-
dict, if it is manifest that they decided against law, in not conforming the verdict to
such instructions. But where the promisor has no fixed place of abode, or where he
has absconded or changed his residence, it is a very ditfcrent question what shall
be considered due and reasonable diligence on the part of the holder in searching
or inquiring for the promisor in order to make demand. There, in the language of
Lord Mansfield, ' no rule can be laid down ' ; it depends on a variety of circumstances,
f> be -"onsidered by the jury, under proper directions by the court as to the nature
23*

270 NOTES AKD BILLS. [CH. ^^^.

Another thing is, that actual dishonor may take place at any
moment after the paper may be presented and demanded. But
this dishonor, accurately speaking, does not take place, or at
least is not completed, merely by refusal to pay, unless the party
subsequently taking the paper had some notice or knowledge of
this demand and refusal. (^•)

The third thing we have to say is this. If the paper be de-
manded and refused within that period before the termination
of which there is no presumption of dishonor, a taker after such
demand, and within that period, having no notice or knowledge
of the demand or refusal, cannot be affected by it.(/) For exam-
ple, suppose a note on demand so circumstanced that the court
would say the lapse of one month is not sufficient to dishonor it,
and the lapse of two montlis is sufficient, ana a transferee takes
it on the twenty-fifth day without notice or knowledge that on
the twenty-fourth day it had been demanded and refused. "We
should say that the law would allow him the riglit of presuming
non-dishonor during the whole of that month, and would protect
his rights accordingly.

Paper payable at a time certain is dishonored by mere non-
payment at that time; but if payable on demand, and dishon-
ored by refusal, the question may arise, what constitutes refusal.

and degree of the diligence required." See also Barbour v. FuUerton, 36 Pcnn.
State, 105.

In the recent case of Mullick v. Kadakissen, 9 Moore, P. C. 46, 28 Eng. L. & Eq.
86, Baron Parke, pronouncing the judgment of the court, said, that when there is no
usage of trade to fix the time, it has long been established that what constitutes a
reasonable time is a mixed question of law and fact for the determination of the court
and jury.

(/c) See Bartrum v. Caddy, 9 A. & E. 275, 278, per Pattcson, J.; Cripps v. Davis,
12 M. & W. 159, 165, per Parke, B.

(/J So even a payment made on a note payable on demand immediately after it is
signed, and not indorsed thereon, would not bind an innocent indorsee, who demands
payment within a reasonable time. In Field v. Nickerson, 13 Mass. 131, 137, Parker,
C. J., pronouncing the opinion of the court, said : " So we think, that he who takes, for
a valuable consideration, a note of liand negotiable within a day or two after it is
Bigned would not be subject to the claims of the promisor in nature of set-off, on the
princi|)lc tliat tlic note was overdue when indorsed; because the maker gives a credit
to the note for a reasoiuible time after it is signed; and if lie should pay it immediately
after, leaving the note assignable in the hands of the promisee, without any indorsement
thereon, he would ])crhaps be holden to pay it again to the indorsee; fur he would bo
considered as promising to pay the contents to any assignee who should, within a rea-
Bonable time, make denutnd of payment." Sec also American Bank v. Jenncs^ 2
Met. 288; Sacket v. Loomis, 4 Graj', 148.

CH. Vm.] BONA FIDE HOLDER OF NEGOTIABLE PAPER. 271

We should say, generally, not a mere delay or postponement for
good reason, which does not amount to the expression of an in-
tention not to pay. As if one should say, '' I supposed you were
to give me ten days' notice : I shall certainly be ready then " ;
or, " I think that is paid, as I have an offset ; I will ascertain in
a day or two, if you will let the note lie " ; and, in either case,
the delay is given. But no special words need be used to consti-
tute refusal, if the paper is demanded, and is not paid, and there
are no words which make the non-payment reconcilable with the
purpose of payment within a proper time, and with a voluntary
delay by the holder on this ground.

Checks, of which we speak fully elsewhere, are a peculiar instru-
ment, and in this connection we need only remark, that they are
not precisely bills, but drafts on demand. Neither sight nor de-
mand is expressed on them ; and the present form in general use
m this country was in use also m England long ago. They are
sometimes written payable on time,(m) or are post-dated, which
has the same effect. (w) When not so written, they are payable
on demand ; but differ from bills on sight or notes on demand in
this, — that they are not intended for circulation, and are consid-
ered dishonored at a much earlier period. That is, it is consid-
ered reasonable to require their presentation much sooner. (o)
But, on the other hand, there is no such strict rule requiring the
prompt presentment of checks as there is with respect to notes
and bills of exchange payable at a time certain. (7?) After a rea-
sonable time has passed, they will be considered as dishonored ;
and what this time is must depend not only upon the nature of
the instrument, but also upon the circumstances attending the
particular case. (7) Tlie mere fact that one takes a check six
days after its date does not necessarily subject him to the equi-
ties existing against it as a dishonored paper ; (r) though this cir-
cumstance is a proper matter of consideration in determining
whether the party thus taking the check acted in good faith and

(m) Westminster Bank v. Wheaton, 4 R. I. 30.

(«) Mutter of Brown, 2 Story, .502, 512. Post-dated checks are sometimes consid-
ered payable, not as at a day certain, but on demand on or after their date. Gough j»
Staats, 13 Wend. 549 ; Mohawk Bank v. Broderick, id. 133.

(0) Per Parke, B. in Brooks v. Mitchell, 9 M. & W. 15.

(p) Per Maule, J., Serrell v. Derbyshire Railway Co., 9 C. B. 811.

{q) Rothschild v. Corney, 9 B. & C. 388, per Lord lenterden.

(r) RothschiM v. Corney, supra.

272 NOTES AND BILLS. [CH. VHI.

with due caution, which may be the real question presented ; (5)
or more accurately the staleness of the check and the want of
caution in taking it are of importance only in connection with
the inquiry whether the holder had any knowledge of any in-
firmity in the title of the person from whom he took it.(^) No
degree of staleness is fixed upon by the law as conclusive evi-
dence of bad fuitli or fraud in the party taking the check.

As one who ]jays out his check may be supposed to deliver it
with the expectation that it will be at once converted into money,
there is perhaps no equity whatever in favor of the drawer, unless
for a loss by negligence or default of tlie holder ; but any holder

(s) Rothschild v. Corney, 9 B. & C. 388, per Lord Tenterden.

(t) Per Lord Brouijliam, Bank, of Bengal v. Fagan, 7 Moore, P. C. 72. A doctrine
to the contrary at one time prevailed, and was the ground of the decision in Down v.
Hailing, 4 B. & C 330. In this case, the payee of a check for £ 50 casually lost it ;
and five days after its date a woman of respectable appearance bought goods of the
defendants, wholesale linen-drapers and haberdashers, to the amount of .£6 10s., and
gave them this check ; they asked her name and wrote it down, and gave her the
change ; the next day they presented it for payment, and the bankers paid it. Two
days afterwards, the payee gave notice to the bankers not to pay it, but, finding it had
bo2n paid, called on the defendants, and brought this action for money had and re-
ceived. Abbott, C. J. left it to the jury, whether the defendants had not taken the check
under circumstances that should have excited the suspicion of a prudent man, and they
found for the defendants. On a motion for a new trial, the court were satisfied that, if
this was to be considered as lost by the plaintiff or stolen from him, the defendant,
who took it so long after its date, must be considered as having taken it at his peril ;
they however doubted whether the plaintiff should not have given some evidence of
losing the check ; but on further consideration of that jjoint, they thought a person
who took such a check under such circumstances was bound to show that the party
from whom he took it had good title to it ; and as to proof of loss, it was remarked
that the party losing it might in many instances be unable to prove such loss.

Where the drawer of a check did not issue it until nine months after its date, it was
held, in a suit against him by an indorsee for a valuable consideration, that the check
was not subject to the equities existing against it in the hands of the payee, by reason of
the indorsee's taking it so many months after it was dated. Lord Keinjon admitted that
it was to be considered as a rule, that the person who takes a I)ill after it is due is subject
to the same equity as the party from whom he took it, though the bill did not appear
upon its face to have been dishonored ; and he thought there was no distinction in this
respect between checks upon bankers and bills of exchange ; but as the defendant had
not issued this check until nine months after it was dated, he thought it was imt com-
petent for him to object to the time when the plaintid" took it. Boelim v. Sterling, 7
T. 11. 42.3.

Where a bank paid a check more than a year after it was drawn, out of its own funds,
on the credit of the drawer, who had paid the amount of it to tlie payee before it
became j>nyablc, and without giving notice of the payment to the bank, it was held
that the drawer was not liable to the bank for the amount so paid. Lancaster Bank
V Woodward, 18 I'enn. State, 357.

CH. VIII.] BONA FIDE HOLDER OF NEGOTIABLE PAPER. 27o

of his check may always chiim of him the full amount. (w) Any
exception to tliis rule must arise from tlie peculiar circumstances
of the case, and from evidence that the holder took it with knowl
edge that its payment might be resisted by the drawer, in whole
or in part, on good grounds. (i;) On the other hand, a bank
always has all its equities and defences against a check, unless it
be certified ; and then it is as an accepted bill.(z^) The excep-
tions to this rule also must arise from the peculiar circumstances
of the case.

(m) Alexander v. Burchfield, 3 Scott, N. R. 555, 7 Man. & G. 1061 ; Robinson
i>. Hiiwksfoid, 9 Q. B. 52 ; Serle v. Norton, 2 Moody & R. 401 ; Murray v. Judah.
6 Cowcn, 490 ; Little v. Phenix Bank, 2 Hill, 426 ; Daniels v. Kyle, 1 Kelly, 304,
3 Ga. 245; Shrieve v. Duckham, 1 Littell, 194; Flemming v. Denny, 2 Pliilad.
Ill, 13 Leg. Intelligencer, UO; Pack v. Thomas, 13 Smedcs & M. 11; East
River Bank v. Gedney, 4 E. D. Smith, 582; Smith v. Janes, 20 Wend. 192 ; Matter
of Brown, 2 Story, 516 ; Morrison v. Bailey, 5 Ohio State, 13, per Beutly, J ; Tryon
I'. Oxley, 3 Iowa, 289 ; Foster v. Paulk, 41 Maine, 425 ; Harbeck v. Craft, 4 Duer,
122 ; Hoyt v. Seeley, 18 Conn. 353.

In Alexander v. Burclifield, sw/jra, Pa^fson, J. said: "As between the drawer of
a check and the holder, if presentment is deferred to such a time that inconvenience
has been sustained, the time may be deemed unreasonable ; but if none has resulted, I
see nothing unreasonable in a presentment, I should even say, at any time within six
years." A similar statement was made by Creswell, J. in Laws ;;. Rand, 3 C. B.
N. s. 442. In Mullick v. Radakissen, 9 Moore, P. C. 46, 28 Eng. L. & Eq. 86,
Parke, B. said that a check " is more like an appropriation of what is treated as
ready money in the hands of the banker, and in giving the order to appropriate to a
creditor, the person giving the check must be considered as, the person primarily
liable to pay, who orders his debt to be paid at a particular place, and as being
much in the same position as the maker of a promissory note, or the acceptor of a bill
of exchange, payable at a particular place, and not elsewhere, who has no right to
insist on inmiediate presentment at tlwt place." In a few cases, the drawer of a check
payable at a future day has been considered conditionally liable, and discharged for
want of due diligence in making presentment and giving notice of dishonor, though
he has suffered no loss. Bradley v. Delaplaine, 5 Harring 305 ; Glenn v. Noble, I
Blackf. 104 This doctrine, however, cannot be supported on authority or principle.

(») Anderson v. Busteed, 5 Duer, 485. See also Thompson v. Hale, 6 Pick. 259.

(w) Robson V. Bennett, 2 Taunt. 388; Barnet v. Smith, 10 Foster, 256 ; Willets
V. Phoenix Bank, 2 Duer, 121 ; Farmers' & Mechanics' Bank of Kent Co. v Butchers'
& Drovers' Bank, 4 Duer, 219; 9. c. in Court of Appeals, 4 Kern. 623. See also
Mussey v. Eagle Bank, 9 Met. 306 ; Hern v. Nichols, 1 Salk. 289 ; Bank of Republic
V. Baxter, 31 Vt. 101.

After a bank has certified a check, it can no more impute delay to the holder in pre-
senting the check for payment, than it can to the holder of one of its own notes ; for
the bank then becomes the principal debtor, and can set up no equities against the
cheek. Willet v. Phoenix Bank, 2 Duer, 121. If the drawer of a check procures it to
be certified by means of fraudulent representations, the bank may reclaim the ciieck or
the money represented by it, unless it has previously been transferred or paid to one
who has no notice of such fraud. Bank of the Republic v, Baxter, 31 Vt. 101.

Vol. I.— S

274 NOTES AND BILLS. [CH. Vm.

Bank-bills are never dishonored by mere lapse of time. They
are usually protected by statute, even against the statute of limi-
tations, and are good as against the bank which issues them at any
subsequent period. Even if the bank be broken, and the bills
have been demanded and refused, they are still salable, and very
frequently sold and resold ; and the purchaser acquires all the
rights of a holder as against the bank or upon its assets.

What rights the holder has against the party from whom he re-
ceived old bills, or bills of insolvent banks, will be considered in
the chapter on Payment by Bill or Note.

SECTION III.

AGAINST WHAT DEFENCES A BONA FIDE HOLDER IS PROTECTED.

The subject of this section might have been said, quite as ac-
curately, to be the peculiar privileges or rights which a bona fide
holder of negotiable paper has, although his transferrer did not
himself possess them. In the first place it should be remarked,
that in this sense, and for this purpose, no one is a bona fide
holder who did not take the paper for value before its dishonor;
that is, before its maturity, if payable at a time certain ; or within
a reasonable time, if payable on demand ; or before actual de-
mand and refusal, and notice or knowledge thereof.

For every holder of negotiable paper who takes it after dis-
honor takes it subject to all equities ; or rather, to all defences
which could have been made to the paper if it had not been
transferred to him.

It was a rule of the court of chancery, coeval with the intro-
duction of uses and trusts, that a purchaser of property in good
faith, for a valuable consideration and without notice of any
equities or trusts to which it was subject in the hands of his
vendor, took the property free and discharged from all these equi-
ties and trusts. This rule, however, was strictly confined to
chosea in possession ; because choses in action were not legally
assignable. Hence the assignee of a chose in action had no legal
title, but only an equitable title ; and when his equitable title
comes into conflict with the equities of other parties, the univer-
sal rule of chancery prevailed, by force of which, as between

CH. VIII.] BONA FIDE HOLDER OF NEGOTIABLE PAPER. 275

equal equities, that which is prior in time is prior in right. Now
negotiable paper is in tliis respect an exception to the law of
choses in action. It may be assigned by indorsement or deliv-
ery, and the assignee acquires a legal title as complete as the
assignee of choses in possession. Thus, the reason for excluding
from the rule negotiable paper wholly failed ; and in addition, its
peculiar nature and function absolutely required that a bona fide
holder should be fully protected. Accordingly, courts of law.
have for a long period in England, and always here, extended to
the bona fide holder of negotiable paper a similar protection to
that which chancery gave to the assignee of choses in possef^sion.
For the application of this important rule, it must be remem-
bered that no holder is entitled to its benefit who has not a com-
plete legal title to the paper ; and we shall presently see how
many transfers of negotiable paper this necessity of legal title
opens to all equitable defences.

As no one is a bona fide holder in this sense who has notice
of a defence against the paper, no one who takes it after dishonor
is such b'ma fide holder, because the dishonor itself is notice to
him that there is some defect or defence. Hence the rule, that
one who takes paper for value after dishonor is open to all
equitable defences, (re)

It is certain that, by the general course and weight of the au-
thorities, one who takes paper after dishonor is subject to all equi-
ties ; and he who takes it in good faith for value before dishonor
is subject to no equities. Wliat these equities are, we shall con-
sider fully hereafter in the chapter on Defences.

The bona fide holder of negotiable paper before dishonor is not
protected against those defences which go to the essence of the
paper, and either by common law or statute annul and avoid the
contract, or which interfere with and prevent his acquiring a le-
gal title to the paper. (^) Thus a person whose name is forged, (z)

-— ■ ' ■ ■ ■ . - . , . . , i».

(x) Brown v. Davies, 3 T. R. 80, per Buller, J. ; Beck i'. Roblej^ 1 H. Bl. 89, note a ;
Little V. Dunlop, Busbee, 40 ; Williams v. Nicholson, 25 Ga. 560 ; Howard v. Ames,
3 Met. 308 ; Mackay v. Holland, 4 Met. 69 ; Potter v. Tyler, 2 Met. 58 ; M'Neill v.
M'Donald, 1 Hill, S. Car. 1 ; Mosteller v. Bost, 7 Ired. Eq. 39 ; Connery v. Kendall,
5 La. Ann. 515; Sawyer v. Hoovey, 5 La. Ann. 153; Lancaster Bank v. Wood-
ward, 18 Penn. State, 357 ; Clay v. Cottrell, 18 Penn. State, 408 ; Baker v. Wheaton,
5 Mass. 509 ; Bond v. Fitzpatrick, 4 Gray, 89.

(y) See supra, pp. 217, 218.

\z) Canal Bank v. Bank of Albany, 1 Hill, 287.

27o NOTES AND BILLS. [CH, VHI.

or whose nol8 is materially altered, (a) is never liable to tlie par-
ties who took the paper innocently and for value on the credit of
his name ; unless his own default was a cause of the forgery or
alteration, (6) or of the taking by the holder, in the belief that
the paper was genuine. So, wherever a note tainted with usury
is thereby annulled, it has no force between any subsequent par-
ties, (c) And if the paper be illegal on any ground which makes
it null and void as between the original parties, it is equally void
in the hands of subsequent parties. (t/) A distinction may per-
haps be taken between notes obtained by fraud and those ob-
tained by force or duress. In the former case, we should say
that the defrauded party would generally be liable to abonajide
holder. But a note or bill obtained by duress might not be avail-
able in any hands against the party so compelled ; and if the note
were a good note, and a subsequent party indorsed it by duress,
he would not be bound to any one ; but a subsequent indorsee,
wiio indorsed it over for value, would be bound to his own in-
dorsee, or to those deriving title from him. But we are not awaro
that this question has been determined by authority. (e)

In the next place, a bona fide holder is not protected against
the defence of incapacity, if that be complete, however it be
created. Thus an infant,(/) or married woman, (g*) or luna-

(a) Master v. Miller, 4 T. R. 320 ; Woodworth i;. Bank of America, 19 Johns. 391 ;
Clatc V. Small, 17 Wend. 238 ; Nazro v. Fuller, 24 Wend. 374 ; Bruce r. Westcott,
3 Barb. 374. See Li.sle v. Rogers, 18 B. Mon. .528 ; Bumpass j'. Timms, 3 Snecd, 459.

(h) As where a blank is carelessly left. See supra, pp. 109-113, 115; Isnard r.
Torres, 10 La. Ann. 103.

(c) Kamsdell v. Morgan, 16 Wend. 574; Keutgen v. Parks, 2 Sandf. 60; Clark i;.
Loomis, 5 Duer, 468. In Hall v. Wilson, 16 Barb. 548, it was held that the discount
or purchase of a stolen note at a greater discount than the legal rate renders the trans-
action usurious and the note void, notwithstanding the transaction is in fonn a purchase
of the note of a person other than the maker, who represents it to be a business note
and valid. The note in this case was for $ 120, payable to A or bearer. It was stolen
by a laborer, and transferred to B for $ 1 1 5, who transferred it before maturity to the
jihiintitr. Held, that the plaintiff could not recover.

(d) See supra, p. 214. Weed v. Bond, 21 Ga. 195.

(c) In Duncan v. Scott, I Camp. 100, the action was brought by the indorsee of a
bill against the drawer. It was held, that if it appeared that the defendant drew with-
out consjilcration and under duress, it was incuml)ent on the plaintiff to prove that ho
gave value for it, although it was indorsed before duo. This case seems to place
duress on the same footing as fraud, in which case, as we have seen, a bona fide holder
may recover.

(/) See guprn, p. 67, note /; p. 69, note k.

(g) Sec supra, p. 79.

CH. Vm.] BONA FIDE HOLDER OF NEGOTIABLE PAPER. 27T

tic,(A) or spendthrift under guardianship, would not be held by
his signature, to any person, however innocently he became the
holder.

The same rule must apply to the case of a supposed agency,
without any real or sufficient authority. For if A signs paper as
the agent of B, B does not sign it, nor can he be affected with
any of the liabilities of signature, unless A was his agent, either
on the ground that he had actual authority from B, or that B,
without giving this authority, had so spoken or acted as to justify
the holder, or some one from whom he derives title, in the belief
that B had given A this authority. For, as we have already seen,
A would be equally the agent of B in law, on eitlier of these
grounds, (i)

Eitlier of these incapacities, or indeed any other, may operate
against the claim of the holder in either of two ways. If the
incapacity attended the making of the note, then the infant, or
lunatic, or married person, or person under guardianship, or un-
authorizing principal, will not be held ; but subsequent parties
who are not incapacitated may be held to a bona fide indorsee
who is subsequent to them.(y) On the other hand, if the paper
is free from all objection of this kind until tlie last indorsement,
and tliat is tainted by any such incapacity, the holder acquires no
legal title, and no rights to the paper or against any parties upon
the paper.

^ There is another broad distinction in respect to the riglits of
the bona fide taker, which should be distinctly apprehended. It
is this. He receives at his own peril all negotiable paper which
is assigned to him by written transfer, and cannot be assigned to
him by delivery only. Whereas lie is generally protected as the
holder of paper transferable by delivery. Thus, one steals or
finds a note negotiable by indorsement, and forges the indorse-
ment ; now the holder by this title can make no claim against any
one, because the written transfer confers no title upon him. And
this is true if the finder or thief happened to have the same name

(h) See supra, p. 150, note p.

'i) See Weathered v. Smith, 9 Texas, 622 ; and supra, pp. 118 - 120.

(j) In Erwin v. Downs, 15 N. Y. 575, a note was made by two married women, and
indorsed by the defendant for their accommodation. It was held that the defendant
was liable to a bona fide holder, although he knew at the time that the makers were
married women.

VOL. I. 24

278 NOTES AND BILLS. [CH. VIIL

vritli the previous payee or indorsee, and therefore wrote his own
name upon the paper, because the question always is, Had the
indorser the legal power and right to transfer the paper by his
indorsement ? for if not, the holder derives no title from his in-
dorsement.

It may be well to remark, that although negotiable paper pay-
able to order is not transferable by delivery only, but becomes
so transferable by an indorsement payable to bearer, or by an
indorsement in blank, yet a bona fide holder of such paper by
delivery only is protected against everything subsequent to the
delivery of the paper, if it is afterwards indorsed to him, the in-
dorsement relating back to the time of delivery, as to any equity
outside of the note itself, (/r)

But if the paper is originally made negotiable by delivery, or
becomes so by indorsement in blank, then it is in the power of
any party, however wrongful his possession, to do all that is ne-
cessary to transfer the property ; for delivery is of itself suffi-
cient. Hence the holder takes now only the risk of his own hon-
esty ; for although his transferrer had himself only possession,
and would have made no title whatever as against any prior
party, the paper is nevertheless so far like money in his hands,
that his innocent transferee for value acquires full property in it,
and all the rights incidental to this property. (Z)

If A holds paper indorsed to him, and B steals or finds it and
forges A's indorsement to himself, and then indorses it for value
to C, C to D, D to E, &c., each of these parties has a valid claim
on B, and on all prior parties as far back as B ; but no one of
them has any claim against A, the original owner, or any party
before B. The true owner has never lost his projjcrty in the
paper, but may still enforce his rights under it, in tlic manner
prescribed for a lost note, against all who were parties wlien he
lost it.(wj)

It should be added, that if paper properly assignable only by
indorsement be delivered without indorsement, the transferee
has l)ut an equitable title. He may have, however, a right to a
legal title, and therefore to an indorsement, if this be necessary

(k) Iliinj,'er v. Cary, 1 Met. .369 The court appear to limit the rule to \he case of
an equity outside of tlic note itself.

(/) Caruth v. Tliompson, 16 B. Men. 572.
{m) Sec supra.

CH. VIII.] BONA FIDE HOLDER OF NEGOTIABLE PAPER. 27?

to make his title legal ; and a court of equity would compel such
indorsement. And we should say that the indorsee would then
have the same rights and the same protection as if the indorse-
ment had been made at the time of the assignment ; because it
would relate back to that time, as it is given now only because it
ought to have been given then. Tiic absence of indorsement is
a merely technical objection ; for the actual transfer for value
passes the property in tlie paper substantially, and the indorse-
ment is needed only to make that transfer formal. (m)

It will follow from what has been already said, that if a bona
fide holder has acquired a perfect legal title, and the instrument
is not made_.void bj statute, and the parties to it are under no
personal disability, he holds the paper subject to very few, and
we might almost say to no defences whatever. Thus, it is no
sufficient defence against him, tliat there was no original con-
sideration ; (o) or that the consideration has failed ; [p) or that
the consideration was illegal, as where the note was given for
liquors sold contrary to law ; {q) or on an agreement not to fur-
ther prosecute the maker on a complaint for adultery with the
wife of the payee ; (r) or for procuring the legislature to pardon
a convict ; [s) or that the note was given as an escrow ; {t) or that
the indorsement grew out of an illegal transaction, or was ob-
tained by fraud ; [ii) or that the note was obtained by fraud or

(n) See supra, note k.

(o) See p 186, note/; Martin v. Ilainilton, 5 Harring. Del. 314.

(p) See p. 188, note g.

{(]) Most of the statutes against selling liquors provide that the note shall be void
between the original parties, but valid in the hands of a bona fide holder without notice
The Massacliusetts act provides that such notes " shall be void against all persong
holding the same with notice of such illegal consideration, either direct or implied by
law." Under this statute it has been held that, if the defendant shows that a note was
given for liquor, the plaintiff' must prove that he took it without notice. Holden v.
Cosgrove, Suff()lk, Nov. 1858; Sistermans v. Field, Bristol, Oct. 1858; Barnard v.
Flint, Berkshire, 1860. And see Paton v. Coit, 5 Mich. 505 ; Wyat v. Campbell,
Moody & M. 80. See also, generally, Doe v. Burnham, 11 Foster, 426; Johnson v.
Meeker, 1 Wis. 436 ; Norris v. Langlcy, 19 N. H. 423.

(r) Clark v. Bicker, 14 N. H. 44.

(s) Meadow v. Bird, 22 Ga. 246.

{t) Vallett V. Parker, 6 Wend. 615.

\u) Humphrey v. Clark, 27 Conn. 381. So, if a party makes or indorses a note, for
the purjiose of its being used in a particular way, he takes the risk of its being used in
a different way, and cannot refuse to pay it to any bonaJiJe holder into whose hands it
uiav come. Sweetser v. Frencn, 2 Cush. 309, 313.

280 NOTES AND BILLS. [CH. Vm

Stolen ; (v) or that it has been already paid to the original payee,
or to some just holder ; (iv) or that the instrument was delivered
to the payee in blank, with authority to insert a certain sum, and
that he has inserted a much larger sum. (a;) In all of these cases,
the courts will afford no remedy to the payee, or to any subse-
quent party chargeable with notice or knowledge of the defence ;
but the paper is not absolutely void, and the bona fide holder is
protected against all these defences.

(»;) Gould v. Segee, 5 Duer, 260 ; Powers v. Ball, 27 Vt. 662 ; Humphrey v. Clark,
27 Conn. 381 ; Kelly v. Smith, 1 Met. Ky. 313 ; Peacock v. Rhodes, 2 Doug. 633.

(w) See supra, p. 230, note w ; Griswold v. Davis, 31 Vt. 390.

(x) See Putnam v. Sullivan, 4 Mass. 45 ; Grig<;s v. Howe, 31 Barb. 100, affirmed.
Van Duzer v Howe, 21 N. Y. 531 ; and supra, p. 115.

CH. IX.] WHAT CONSTITUTES ACCEPTANXE. 283

CHAPTER IX.

ACCEPTANCE.

Acceptance may be defined to be an agreement to coraj)ly with
the request contained in a bill of exchange. (//) It may be ex-
press or implied ; verbal or written ; prior to drawing the bill ;
before or after maturity ; absolute, qualified, or conditional ; by
all the drawees, by a part of them, or by one who is not a drawee,
if he accepts for the honor of the drawer or any indorser. The
acceptance is complete when in exact conformity with the tenor
of the bill ; qualified, wdien it is an agreement to pay the bill, but
at a different time, place, or in a different manner from the tenor
thereof; conditional, when the obligation of payment is to com-
mence on the happening of some event or circumstance. We
will first consider what constitutes acceptance.

SECTION I.

WHAT CONSTITUTES ACCEPTANCE.

The usual manner of accepting is for the drawee to write
across the face of the bill, frequently in red ink, the word " Ac-

iy) "An acceptance is an engagement to pay a bill according to the tenor of the
acceptance." Bayley, c. 6, § 1 ; Kyd, c. 6 ; Edwards, p. 405. " The act by which the
drawee evinces his consent to comply with, and be bound by, the request contained in
the bill of exchange directed to him. or, in other words, it is an agreement to pay the
bill when due." Chitty, p. 280. "An assent and agreement to comply with the re-
quest and order contained in the bill, or, in other words, it is an assent and agreement
to pay the bill, according to the tenor of the acceptance, when due." Story, § 238.
" An engagement to pay the hill when due." Lawrence, J., Clarke v. Cock, 4 East, 57,
72. " An engagement of the one party acceding to the proposition of the other."
Bayley, J., Jcune v. Ward, 1 B. & Aid. 653, 659. " An engagement by the drawee to
pay the bill when due in money." Byles, p. 142. The objections to this last defini-
tion are, that an acceptance may be by a person other than the drawee, as in the case
of an acceptor for honor ; that the words " when due" are hardly correct, as an accept-
ance after maturity is valid ; and that " in money " is surplusage, because, a bill of
exchange being a written order for the payment of money, an engagement to pay the
bill mast be to pay in money, for a bill not payable in money is not a bill of exchange.
24*

282 NOTES AND BILLS. [CH. IX.

cepted," and sign his name to this. It is certainly sufficient if
stamped or printed on the bill,(z) and probably sufficient if writ-
ten in pencil. (a) The date is immaterial, unless the bill is paya-
ble so many days after sight, or after acceptance ; in that case it
usually is, and always should be, added ; but if not added, the
actual date may be shown by evidence ; and will then have the
same effect as if it were written. (Z>) No special form or manner
or words of acceptance are necessary ; (c) nor is the signature of
the drawee essential, although usual and proper, (c^) The rule
seems to be, as drawn from the authorities and the reason of the
case, that if a bill is presented to a drawee for the purpose of
obtaining his acceptance, and he does anything to or with it
which does not distinctly indicate that he will not accept it,
he is held as an acceptor ; for he has the power, and it is his
duty, to put this question beyond all possibility of doubt.(e)
Thus " Accepted," without a signature,(/) or even " Pre-
sented," (^'■) or " Honored,"(A) or "I will pay the bill,"(i) or

In Petit V. Benson, Comb. 452, it is assumed that an acceptance payable half in money
and half in bills is valid as to the part payable in money, and not as to the part paya-
ble in bills. An acceptance must be to pay in money ; an acceptance to pay by another
bill is no acceptance. Russell v. Phillips, 14 Q. B. 891. An acceptance is not a
collateral i)roinise to pay the debt of another within the statute of frauds. Haborg v.
Peyton, 2 Wheat. 385; Fisher v. Beckwith, 19 Vt. 31, See Storer v. Logan, 9 Mass.
55,' 60.

(z) See Schneider v. Norris, 2 Maule & S. 286.

(a) Supra, p. 21, note y.

(6) Kenner v. Creditors, 20 I\Lart. La. 36, 1 La. 120. See Glossop v. Jacob, 4
Camp. 227.

(c) Spear v. Pratt, 2 Hill, 582, -vvherc the signature of the drawee across the face of
the bill was held a valid acceptance, even under the statute requiring acceptances to be
in writing and signed.

(d) Phillips V. Frost, 29 Maine, 77 ; Dufaur v. Oxenden, 1 Moody & R. 90. In this
case it was left to the jury to decide whether the acceptance was complete, and they
decided that it was.

(e) See Cowcn, J., Spear i;. Pratt, 2 Hill, 582 ; llarvey v. Martin, 1 Camp. 425, note ;
Jeune v. Ward, 2 Stark. 326.

{/) Sec supra, note d.

{g) Holt, C. J., Anonymous, Comb. 401.

(/() Story on Bills, § 243.

(i) Ward V. Allen, 2 Met. 53 ; Lord Ellenborough, C. J., Wynne v. Raikcs, 5 East,
514 ; Leach v. Buchanan, 4 Esp. 226. In Ivlson v. Fuller, 2 Foster, 183, a parol prom-
ise "to settle" a note was held a valid acccj)tance of an order indorsed upon it for the
amount due. So where the cashier of a bank pronounced a check drawn upon it
"good." Barnct v. Smith, 10 Foster, 256. Where the drawee wrote on the back of a
bill, " 1 will sec the within paid eventually," and signed it, it was held a valid accept

en. IX.] WHAT CONSTITUTES ACCEPTANCE. 283

" Sccn,"(y) or the day and mouth when presented, (/c) or a written
direction liy the drawee to some other person to pay the bill,(/) or
the mere signature of the drawee, (m) have been hehl equivalent to
an acceptance. Probably if it could be shown by evidence that
any of these acts, which might be considered ambiguous, was not
intended to be taken as an acceptance, and in fact was not so
taken, and that there was no fraudulent design, such act or word
would not bind as an acceptance. It has indeed been said, that
" I will not accept this bill," being written upon it, is, bij the cw-
tom of merchants, a good acceptance. But it is incredible that
such a mode of acceptance should ever be customary, and it is
difficult to maintain such a rule of law. If the refusal were fraud-
ulent, and intended to be understood as an affirmative accept-
ance, and was, in fact, so understood, there would undoubtedly
be some adequate remedy against the perpetrator of the fraud ;
but even then it would not be easy, on legal principles, to make
this an acceptance, (w)

anco binding forthwith. Brannin v. Henderson, 12 B. Mon. 61. See also infra, §§ 2, 3.
A .statement by the drawee of a bill to a third party, not privy to the bill, nor an agent
of any one interested in it, that he " must pay," or " would have to pay " it, is not an
acceptance, nor admissible alone as evidence from which a jury may find an acceptance.
Martin v. Bacon, 4 Const. R. 132. A bill had been left with the drawee for accept-
ance. The drawee subsequently returned it to the holder's clerk, saying, " There is
your bill ; it is all right " Held by Lord Kmijon as evidence of acceptance. Powell v.
Jones, 1 Esp. 17. It has been said, that whether there has been an acceptance or not
is a question of law upon the facts found. Barnet v. Smith, 10 Foster, 256 ; Edson v.
Fuller, 2 id. 183; Sproat v. Matthews, 1 T. R. 182. If the drawee says he cannot
accept until further directions from A, and A afterwards desires him to accept and
draw upon B for the amount, the mere drawing upon B is not an acceptance until the
bill is accepted by B. Smith v. Nissen, 1 T. R. 269.

(j) Eastman, J., Barnet v. Smith, 10 Foster, 256 ; Coicen, J., Spear ». Pratt, 2 Hill, 582.

(ic) Holt, C. J., Anonymous, Comb. 401 . In Powell v. Monnicr, 1 Atk. 61 1, the defend-
ant received the bill before it was due, kept it ten days, entered it in his bill-book under
a particular number, marking that number and a date upon the bill, and wrote to the
drawer that the bill "should be duly honored and placed to his debt." Lord Hard-
wicke observed : " Now it has been said to be the custom of merchants, that, if a man
underwrites anything, let it be what it will, it amounts to an acceptance ; but if there
was no more than this in the case, I should think it of little avail to charge the defend-
ant" The letter was, however, held to amount to an acceptance.

(/) Moor V. Wilhy, Buller, N. P. 270.

(m) Spear v. Pratt, 2 Hill, 582.

n) Lumley v. Palmer, Cas. Temp. Hardw., London ed., 74. But in Bayley on Bills,
164, note (2d Am. ed.), it is added : "But by Lord Mansjield, in Peach v. Kay, in sit-
tings after Trinity term, 1781, ' it was held by all the judges, that an express refusal to
accept, written on the bill, where the drawee apprised the party who took it away what

284 KOTES AXD BILLS. [CH. IX.

That a drawee may refuse acceptance is certain ; and bills are
every day protested in all commercial cities for non-acceptance.
But it would seem that the proper and only safe way of non-
accepting is to make a positive refusal in words, but without writ-
ing. Even if a drawee silently detains a bill for a considerable
time, it hnj-. been said that this act might be regarded as an ac-
ceptance. We think, however, both on authority and on reason,
that mere detention or delay should not, of itself and alone, be
considered as the equivalent of acceptance ; but that any unrea-
sonable delay which caused injury to the holder withont his fault,
or which, from the circumstances, justified the holder in believ-
ing that the bill was accepted, would bind the drawee as by an
acceptance. (o) We should say that some duty lay upon the
holder to inquire after his bill, and know why it was silently de-
tained ; and the cases sometimes indicate this. (7?) And it has
been held that the destruction of a bill by the drawee, when the
bill was left for acceptance, bound him as an acceptor ; {q) but

he had written, was no acceptance ; bat if the drawee had intended it as a surprise upon
the party, and to make him consider it as an acceptance, they seemed to thinli it might
have been otiierwise.' " See supra, p. 26, note u.

(o) In Harvey v. Martin, 1 Camp. 425, note, the drawer sent a bill to tlie drawee,
requesting Iiim to accejit and send it to the plaintiff, tlie payee. Two weeks after,
the drawer, learning that tiie bill had not been received by the payee, wrote asking
him again to accept and send tlic bill, saying that detention would be considered as
equivalent to acceptance, but that the payee would not give credit till the bill was
received. After some time the drawee informed the drawer that he had intended to
pay it, but now refused, as he had no funds of the drawer in his hands. The reports
of this case are somewhat conflicting and unsatisfactory, but it seems that detention
alone would have been deemed sufhcicnt. See Jeune v. Ward, 2 Stark. 326, note,
I B. &. Aid. 6.53. The length of time during which a bill may be retahicd without any
presumption of acceptance may be controlled by the usage of trade. See Fernandcy
V. Glynn, 1 Camp. 426, note ; Mason v. Barlf, 2 B. & Aid. 26. Mhott. C. J. said, that
the doctrine that detention for an unreasonable time amounts to acceptance "is not
supported by the authority of any decided case, for the cases have all been decided
upon very special circumstances." See also Clavey v. Dolbin, Cas Temp. Hardw,
Dublin cd., 264. In Koch ». Howell, 6 Watts & S. 3.50, it was contended that tho
retention of an order by the drawee until the trial, without informing the j)ayee of any
determination to accept, amounted to .an acceptance at law. But the court held other-
wise, and that it was a question for the jury to consider. In some States there aro
statutory provisions on this subject. Sec infra, p. 285, note u.

(/)) Jeune V. Ward, 1 B. & Aid. 653, 659, per Bmjloi/, J.

(7) .Icune V. Ward. 2 Stark. 326. In this ca.se the ])ayec of a bill presented it for
ftcceptancc, but tlic drawee refused. Tlie bill was however left with hitn. The payee
afterwards took further sti.-ps towards obtaining the money by negotiation, and fi'nally
the dra' rcc destroyed the bill, having retained it in his hands for more than a month

CH. L\.] WHAT CONSTITUTES ACCEPTANCE. 285

there seems no necessity for such an extraordinary construction,
for other and more appropriate forms of action would afford as
complete a remedy for the wrong done. If, after a positive re-
fusal to accept, the holder leaves the bill with the drawee, neither
Ids retaining it, nor, it is said, his destruction of it, will amount
to an acceptance. (r) It seems now to be settled on authority,
and perhaps for sufficient reason, that an acceptance need not bo
in writing,(A') or, if in writing, need not be on the bill itself,(^)
except where this is required by statutory provisions, as stated in
our notes. (w) Words, however, which arc to have this effect, if

Lord Ellenhorowjh ruled at Nisi Prius that the destruction of the bill, under the cir-
cumstances, was equivalent to an acceptance, and a verdict was rendered against the
drawee. The verdict was afterwards set aside by the Court of King's Bench, Lord
Ellenborough dissenting, 1 B. & Aid. 653. Lord EUeitborouyh, in his opinion on the
motion to set aside the verdict, seems to lay more stress on the circumstances, aside
from the destruction of the bill, than in his opinion at Nisi Prius, and he observes :
" If indeed the bill had not originally been left for acceptance, the whole case would
certainly fall to the ground. But I think it clearly appears from the evidence, that it
was so left, and the defendant, not having in a reasonable time notified his refusal to
accept, and having ultimately destroyed the bill, must, as it seems to me, be held liable
for it as the acceptor." But the other judges doubted whether the bill was left for ac-
ceptance, and declined to decide the question as presented by Lord Ellcnborough.
There is much difficulty in ascertaining from the reports of this case what were the
real facts upon which the opinions of the court were based ; and intimations are given
of a disposition to limit the doctrine of constructive acceptances, and even of regret
that it had been carried so far. Ahbolt, J. remarked : " I look witli the greatest anxiety
at these cases of constructive acceptance, for every decision of that kind introduces un-
certainty upon a subject where the public interest requires that the greatest certainty
should prevail. If indeed it were res integra, it would be most desirable that the liabil-
ity of the acceptor should be confined to the case of an actual acce])tance on the face
of the bill. I own, I wish the rule had been so laid down originally." So Lawrence
J., Clarke v. Cock, 4 East, 57 ; Lord Ken/jon, C. J., Johnson v. Collings, 1 East, 98.
This subject has been regulated by statute in many States, as will appear hereafter.

(»•) This seems to have been conceded by the whole court in Jeune v. Ward, 1 B. &
Aid. 653.

(s) Lumley r. Palmer, Cas. Temp. Hardw., London cd., 74, 2 Stra. 1000 ; Julian
V. Shobrooke, 2 Wils. 9 ; Miln v. Prest, Holt, N P. 181, 4 Camp. 393 ; Fairlee v. Her-
ring, 3 Bing. 625, 11 J. B. Moore, 520 ; Sproat v. Matthews, 1 T. K. 182 ; Walker v.
Lide, 1 Rich. 249 ; Fisher v. Beckwith, 19 Vt. 31 ; Ward v. Allen, 2 Met. 53; Grant
D. Shaw, 16 Mass. 341 ; Edson v. Fuller, 2 Foster, 183 ; Barnct v. Smith, 10 id. 256;
Leonard v. Mason, 1 Wend. 522; Ontario Bank v Worthington, 12 Wend. 593;
Williams v. Winans, 2 Green, N. J. 339. But see Bank of Ireland v Archer, 11 M. &
W. 383, in which the accuracy of the report of Miln v. Prest, as given in Holt, N. P.
181, is doubted.

(t) Billing V Devaux, 3 Man. & G. 565 ; Hatcher v. Stalworth, 25 Missis. 376.

(u) In Alabama, an acceptance must be in writing, and signed by tlie acceptor or hia
agent. Code, 1852, § 1532; so in California, Comp. L. 1853, c. 27, §§ 6, 7 ; in Mis-

2h6 NOTES AND BILLS. [CH. IX.

only spoken, should be clear and explicit ; (v) and if written, but
not on the bill, they should be similar words, and should be writ-
ten on some paper which distinctly relates to the bill. For this
purpose a receipt, memorandum, or letter might suffice. (?t?)

To all this, however, there is one important exception. If the
drawee accepts in writing on the bill, he is held without any ref-
erence to the person making the request. But if the acceptance
is only iii words spoken, they have no such effect, unless spoken
to one then having an interest in the bill, or subsequently ac-
quiring an interest on the credit and influence of the words so
spoken. (aj) If the words are written, but not on the bill, the
rule must be substantially the same ; but the writer, because he
has given permanence and transferableness to his words, might
be held to any bona fide holder of the bill to whom they were
communicated. Sometimes the course of dealing between the
parties has an important effect. Thus, where the drawer advised
the drawee of the bill by letter, and the drawee replied that
" the bill shall have attention," it was held that those words taken
by themselves were not sufficiently positive and unequivocal to
amount to actual acceptance ; but that if it could be shown that
such words were used for that purpose, and with that effect, in
dealings between the parties, then they might be regarded as au
acceptance, (y)

We shall see that a bill must be presented for acceptance,
under penalty of certain consequences ; but it does not seem
that an acceptance, distinctly made, under circumstances indicat-
ing that the drawee knew precisely what bill he was accepting,

souri, R. S. !835, p. 97 ; in Wisconsin, R. S. 1858, c. 60, ^ 7 ; and in New Yori<, R. S.
pt. 2, c. 4, tit. 2, ^§ 6, 7. It is enacted also in tlie latter State and in California,
that if the acceptance is written on a paper other than the bill, it shall not bind the ac-
ceptor, except in favor of a person to whom such acceptance shall have been sliown,
and who, upon the faith thereof, shall have received the bill for a valuable considera-
tion. See Luff v. Pope, 5 Hill, 413, 7 id. 577.

In Kngland, by Stat. 1 and 2 Geo. IV". c. 78, an acceptance of an inland bill must
be in writing, on the bill itself, or on a part of it, if a set of exchange. This is re-
enactcfl and extended to Ireland by Stat. 9 Geo. IV. c. 24, § 8 ; so in New Brunswick,
R. S. 1854, c. 116, ^ 4.

(v) Sn/im, p. 282, note t ,• Rec8 v. Warwick, 2 B. & Aid. 113.

{w) See I'illans v. Van Microp, 3 Burr. 1063; I'icrson v. Dunlop, Cowp. 571 ; Pow-
ell r. Monnier, 1 Atk. Oil ; Mason v. Hunt, I Doug. 297.

(z) See Martin v. Bacon, 4 Const. R. 132.

ly) Rces v Warwick, 2 Stark. 411, 2 B. & Aid. 113. Sec Parke, J., Fairlue »
Herring, 3 Bing. 631.

CH. IX.] WHAT COXSTITUTES ACCEPTANCE. 28T

would be invalid, merely because the bill was not actually shown
and presented. (2) If it is presented, then — when no statute
intervenes — the general rule is, that any conduct of tlie drawee
from which the holder is justified in drawing the conclusion that
the drawee intended to accept the bill, and intended to be so
understood, will be regarded as an acceptance.

On this ground it has been decided tliat a letter from the
drawee to the drawer, the latter being dead and the former not
knowing this fact, might be treated as an acceptance. (a) The
death of the drawer is no objection whatever to an ordinary
acceptance by the drawee, whether with or without knowledge ;
for the death is no revocation of the bill, if it has passed into the
hands of a holder for value. (/>) It seems that bills are sometimes

(z) Fisher v. Beckwitli, 19 Vt. 31. See Clarke v. Cock, 4 East, 57 ; Cox v. Cole-
Plan, Cliitty on Bills, 288.

(a) Billing V. Dcvaux, 3 Man. & G. 565.

(6) Cutts V. Perkins, 12 Mass. 206. In this case the drawer, a master of a vessel,
having received goods on board, drew on the consignee for the amount of the freight
to become due on the completion of the voyage, in favor of a creditor. 'J'he master
died, his estate being insolvent. The consignee accepted the draft and paid the bill
with knowledge of the drawer's death. The administrator sued the consignee for the
freight but was not allowed to recover.

Chitty, p. 282, says : " It should seem that where a bill has been drawn in payment
of a debt from the drawer to the payee, the drawee may legally accept the bill after no-
tice of the death of the drawer, such death not revoking the order given in favor of a
lona Jide creditor." And on p. 287 : " If a person draw a bill of exchange on
another, and deliver it to the payee for a sufficient consideration, and the drawer then die,
it should seem that this, having been an appropriation of a particular fund for the benefit
of the payee, the death would be no revocation of the request to accept, and that the
drawee may accept and pay." The principal authority cited is Tate v. Hilbert, 2 Ves. Jr.
118. Byles, p. 17, says : "It seems that the death of the drawer of a check is a coun-
termand of the banker's authority to pay it. But that if the banker do pay the check be-
fore notice of the death, the payment is good." The authority cited is also Tate v. Hil-
bert. These two propositions are irreconcilable. It will be observed that, although in
Cutts V. Perkins, 2 Mass. 206, the draft was drawn for the whole of a fund, yet, in con-
sidering the question whether the draft amounted to an assignment, the court thought it
unnecessary to consider whether it was a bill of exchange or not. The question as to how
far a bill of exchange or a check operates as an assignment is considered subsequently.
The correct doctrine, it will be seen, is, that after acceptance the bill is considered as an
assignment. Hence the question, on the point now under consideration, is whether the
death of the drawer, after he has given up all control over that part of the fund in the
hands of the drawee which is equal to the amount of the bill, can have any effect on
the right of the drawee to do all that is wanting to make the bill a complete assign-
ment. This right on the part of the drawee to complete the assignment would seem to
be a privilege of his own, and it is somewhat difficult to see how the death of the
drawer can affect it. The drawer has given the holder a written instrument, authoriz-

288 NOTES AND BILLS. [CH. IX

drawn directing the drawee to pay " without acceptance." Such
an instrument is still a bill of exchange, (c) and it has been said
that these words merely permit the holder to make no present-
ment for acceptance until the bill has become payable. (r/) It
may be, however, that such words are used to insure the holder
against any ill effect of want of presentment for acceptance. It
has been said, also, that these words would exempt the drawer
from liability to pay merely on non-acceptance, leaving him lia-
ble, of course, on non-payment. (e)

Tliere is a class of cases in which the act of drawing itself
constitutes acceptance ; as where a person draws a bill upon
himself ; (/) or does not address it to any one ; (g) or where a
partner draws, in his own name, upon the firm of which he is a
member for partnership purposes ; (h) or where a bill is drawn
by an officer of a corporation, legally authorized so to do, on the
corporation. (i) Such instruments are, however, in legal effect
promissory notes.

If a party accepts a bill in which no drawee is named, and
there is nothing in the bill to indicate that the party accepting
is not the drawee, this acceptance operates, generally at least,
as an admission by him that he is the drawee. We should say
that the bill should then be considered complete, and he be held

ing the latter to apply to the drawee for the assignment of certain funds. The holder,
if the bill was received for a sufficient consideration, has an interest in this authority,
— not merely in the proceeds of the bill, but in the bill itself (see the distinction
taken by .]farshall, C. J., in Hunt v. Kousmanier, 8 Wheat. 201) ; and the rule is, that
an autliority coupled with an interest is irrevocable.

(c) And may be so described in an indictment for forgery. Queen v. Kinnear, 2
Moody & R. 117. In Miller v. Thomson, 3 Man. & G. .576, such an instrument was
declared on as a promissory note ; but in that case the bill was drawn upon a joint-
stock bank by the manager of one of its branch banks.

((/) Queen V. Kinnear, 2 Moody & II. 117.

{e) Muule, J., Miller v. Thomson, 3 Man. & G. 576, 579. Sed qucere.

if) Cunningiiam v. Wardwell, 3 Fairf 466; Roach v. Ostler, 1 Man. & R. 120.
Sec Hasey v. White Pigeon B. S. Co., 1 Doug. Mich. 193.

{()) See Dougal v. Cowles, 5 Day, 511 ; Marion, &c. R. Co. v. Hodge, 9 Ind. 163.

(//) Dougal r. Cowles, 5 Day, 511. See Miller v. Thomson, 3 Man. & G. 576.

(0 Hasey v. White Pigeon B. S. Co, 1 Doug. Midi. 193; Miller r. Thomson, 3
Man. & G. 576. Such an instrument is a clear acknowledgment of an indebtedness,
and may be tlie foundation of an action. Marlon, &c. R. Co. v. Hodge, 9 Ind. 163. It
must be presented in a reasonable time for payment. Marion, &c. R. Co. v. Dillon, 7 id.
404. Contra, Fairchild v. (). C. & R. R. Co , 15 N. Y. 337. The declaration in au
action against the corporation must allege that tlie orders had been presented for pay
mcnt. Marion, &c. R. Co. v. Lomax, 7 Ind. 648 ; Marion, &c. R. Co. v. Dillon, id. 4(M

CII. IX.] WHAT CONSTITUTES ACCKPTANCE. 289

liable as an acceptor. (j) If there is no date to an acceptance,
the presumj)tion of law is that it was accepted before due, and
whoever asserts that the acceptance was after maturity must
prove it. This presumption would rest on the course of business,
as making this usual and actually probable, aiid also on the prin-
ciple that the instrument becomes thereby more perfectly what
it purports to be, a regularly negotiated bill of exchange.

But although every acceptance is presumed to have been
made within a reasonable time after the date of the bill, and
before it falls due, (A;) yet it is not invalid because made after
maturity. The acceptor, in such case, is liable to pay on de-
mand, and if the declaration states the acceptance to be " accord-
ing to the tenor and effect" of the bill, these words are consid
ered surplusage.(/) Acceptance may also be made after a
previous refusal to accept ; (m) but it has been held that, if the
holder of a bill payable a certain number of days after sight
elects to consider what passes on presentment as a refusal to
accept, and protests the bill, he is bound by such election as to
the other parties to the bill ; and if he neglects to give them
notice of dishonor, they are discharged, although the drawee
retracts his refusal the next day, and accepts. (?^) An accept-

( y) Gray v. Milner, 3 J. B. Moore, 90 ; Regina v. Hawkes, 2 Moody, C. C 60 ;
Wheeler v. Webster, 1 E. D. Smith, 1. There hardly seems to be sufficient reason for
the remark of Patteson, J., Davis v. Chirke, 6 Q. B. 16, that this decision "goes to the
extremity of what is convenient." Considerable doubt has also been thrown upon this
point by the case of Peto v. Reynolds, 9 Exch. 410. But the objections are hardly satis-
factory. It is said in Gray v. Milner, supra, that, the bill being addressed to the inhab-
itant of a particular house, the defendant's acceptance was conclusive evidence that he
lived in that house, and consequently the drawer was induced to look no further. But
why may not the acceptance be as well conclusive evidence that the acceptor was the
party intt?nded to be drawn upon, and thereby the drawer was induced to look no further ?
The objection, that, if such an instrument was presented to two or more acceptors, each
of whom promises to pay, there would be some doubt as to which was the acceptor, is
likewise unsatisfactory. It would be clearly the first, and the names of subsequent
acceptors would be mere surplusage, as in the bill where a drawee was named. With
regard to the case of Regina v. Hawkes not being entitled to the same weight of author-
ity as a decision pronounced in the presence of the public, it might be suggested that
certainty is much more requisite in an indictment for forgery than in a declaration in
a civil suit.

(k) Roberts v. Bethell, 12 C. B. 778.

(/) Jackson v. Pigott, I Ld. Raym. 364 ; IMutford v. Walcot, id. 574 ; Stein v.
Yglesias, 1 Cromp M. & R. 565 ; Billing v. Devaux, 3 Man. & G. 565; Christie v.
Pearl, 7 M. & W. 491.

(/«) Wynne v. Raikes, 5 East, 514.

(n) Mitchell v. Dcgraud, 1 Mason, 76.

Vol. I.— T

290 NOTES AND BILLS. [CH. IX.

ance may be made prior to drawing the bill, by writing the name
of the acceptor across the face of the paper ; and if the acceptor
delivers it as an acceptance, he is estopped from saying that he
delivered it before the bill was drawn, nor need the holder prove
any custom of merchants thus prematurely to accept an intended
bill, nor will there be a variance if the declaration states the
drawing of the bill in the usual form, and that the drawee after-
wards accepted. We think, however, the paper should be filled
up and used within a reasonable time after it was signed, (o)
The acceptor of such a paper may be made liable for any amount
which the person receiving the paper chooses to insert in the
bill ; nor is it necessary tliat the bill be drawn by the same
person to whom the blank acceptance is handed. (/>)

A factor who receives and holds goods against which a bill of
exchange is drawn, acquires a lien on the consignment for the
amount of the bill, even though the goods are not in his possession,
but are still in the hands of a forwarder. (q-) It is however well
settled, that a bill of exchange drawn against a consignment of
goods does not generally operate as a specific appropriation of the
goods or their proceeds to the payment of the bill, either at law or
in equity, (r) And if a person has goods or funds in the possession
of another, he cannot by drawing a bill on that person render

(o) Molloy V. Delves, 4 Car. & P. 492, .5 Moore & P. 275 ; Bank of Limestone v.
Penick, 5 T. B. Moii. 25. In Montague v. Perkins, C. B. 1853, 22 Eng. L. & Eq. 516,
it was held that it is no defence that an acceptance was given in blank to the drawer,
and tliat the bill was not issued until twelve years after; the statute of limitations com-
mencing to run from the time the bill was due as filled up, and not from the time it
would have become due if completed when accepted in blank. In Tem[)lc v. Pullen,
8 ICxch. 389, it was lield proper to leave the question to the jury to say whetlier a note
which was not filled up till six years after the signature in blank, was filled up within
a reasonable time, considering the circumstances of the defendaiit and his ability to
pay the note. The same doctrine seems to liave been decided with regard to a blank
acceptance, in Mulhall v. Neville, 8 Exch. 391, note. The authority given by a blank
acceptance to fill it up is not lost merely because the drawer by mistake antedates the
insn-umcnt a year, although it is made payable a certain time after date ; and if the
period has elapsed from the time of the com[)letion of the instrument, an action may
be maintained upon it, and the variance will be amendable. Armfield v. Allpurt, 3 H.
& N. 911.

{p) Sihultz V. Astlcy, 2 Bing. N. C 544, 7 Car. & P. 99.

(7) Davis V. Bradley, 28 Vt. 118; Gragg v. Brown, 44 Maine, 157; 1 Parsons on
Contracts, 84, note 7.

()•) Harris v. Clark, 3 Comst. 93, 118; Cowpcrthwaitc «. Sheflicld, 1 Sandf. 416,
8 Comst. 243 ; Winter v. Drury, 1 Scld. 525 ; Marine & Fire Ins. Bank v. Jaunecy, 3
Sandf 257 ; Chapman r. White, 2 Sold. 412 ; Whcclcr v. Stone, ♦ Gill. 38.

CH. IX.] WHAT CONSTITUTES ACCEPTANCE. 29>

the drawee liable to the payee for not accepting the draft. (5)
But it would seem that, if a person should write to a factor that
he had sent him certain goods for sale, and drawn a bill on him
on the credit of the goods to a certain amount, the factor, if he
received the consignment, would be bound to accept the bill.

The question still remains whctlier the payee of the bill would
have a right of action against tlie factor as an acceptor for money
had and received to his use, on the ground that the acceptance
of the consignment was equivalent to a promise to accept. We
should hold him so liable, on the ground that by accepting the
consignment he had made a contract with the drawer to accept
the bill, and that this contract being for the benefit of a third
person, this person might bring an action for the breach of the
contract. (^)

As a note, although made, only takes effect when it is deliv-
ered, the same thing is true of an acceptance. This there-
fore is revocable until the bill is delivered to the holder or his
agent who presents it for acceptance, (m) although it seems to
have been held otherwise formerly. (z;) If the acceptance is in
any of the ways which we have seen to be equivalent to the
usual acceptance, and the bill is not in the hands of the acceptor,
then, of course, delivery by him cannot be necessary, for it is not
practicable, and it would seem, therefore, that such an acceptance
must be irrevocable. Certainly it would be so after any holder
had received the assurance of it, and was justified in regarding
the bill as an accepted one, and as his property. (i^?) The accept-
ance of a bill payable so many days after sight takes effect from
its date, and not from the time of presentment, nor does the doc-
trine of relation apply in such cases ; and in the computation of
the time the day of the date is excluded. (.-c)

(s) Grant v. Austen, 3 Price, 58 ; New York & Virginia State Bank v. Gibson, 5
Ducr, 574. See, contra, Corser v. Craig, 1 Wash. C. C. 424.

(t) We are not aware that this precise question has been decided, but it would seem
to follow from the principles stated in the text. See Carnegie v. Morrison, 2 Met. 381.

(u) Cox V. Troy, 5 B. & Aid. 474.

(y) Thornton v. Dick, 4 Esp. 270 ; Tummer v. Oddie, cited 6 East, 200. See Ben-
tinck V. Dorrien, id. 199 ; Raper v. Birkbeck, 15 id. 17.

{w) Grant v. Hunt, 1 C. B. 44.

{x\ Mitchell v. Degrand, 1 Mason, 176.

'2^2 NOTES AND BILLS. [CH. IX.

SECTION II.

PROMISE TO ACCEPT.

The question has frequently arisen, under what circumstances
a promise to accept is equivalent to an acceptance. The general
principles which determine the answer to this question are these.
On the one hand, it must frequently happen in mercantile busi-
ness that persons who are arranging for a future transaction, and
seeking to ascertain what secnrity or what resources they may
have, inquire whether certain bills wliich enter into the arrange-
ment are to be accepted, and, learning that they are to be so, rely
upon them in a way which would make disappointment disas-
trous. But, on the other hand, they must, at their own peril, dis-
criminate between answers or statements which merely give in-
formation, and those which constitute or imply a definite promise.
For it is only upon this last class of statements that the law au-
thorizes them to rely, on the ground that a refusal of the law to
recognize and enforce such promises would be very embarrassing
to mercantile business. Between these two classes of cases it
may sometimes be difficult to discriminate, and this difficulty
may sometimes appear to give to the law an uncertainty which
belongs to the fact.

The law of England on this subject seems to differ somewhat
from the law of America. In the former country it was for some
time uncertain whether a parol promise to accept a non-existing
bill was valid as an acceptance under any circumstances ; but
the later authority is that it is not so valid. (y) Nor would a

(y) The case of Pillans v. Van Mierop, 3 Burr. 1663, has been cited as authority for
the doctrine that a parol promise to accept a bill to be drawn was a valid acceptance,
yet it is doubtful whether it sustains it. It is authority to show tliat there may be an
acceptance before tlie bill is drawn, and it is not clear what else it actually decides.
In Pierson v. Dunlop, Cowp. .571, the qualification is added, that a written promise
must be accompanied by circumstances which mi^jlit induce a third ])nrty to take the
bill. Mason v. Hunt, 1 Doug. 296, and Miln v. Prcst, 4 Camp. 393, adopt similar views.
In Johnson r. Collings, 1 East, 98, the point actually decided was, that a parol prom-
ise, where no third party was induced thereby to take the bill, was not binding as an
acceptance. The language used by Lord Kenyan in his decision is, however, general ;
"that a ])roniise to accept a bill before it is drawn is not equally binding as if made
afterwards." The decision in the Bank of Ireland ». Archer, 11 M «& W. 383, is,
that a j)arol promise to accept is not an acceptance, even where the holder discouuted

CII. IX.] PROMISE TO ACCEPT. 293

written promise to accept such a bill now be held equivalent to
accc})tancc in any case, the terms of the statute 1 and 2 Geo. IV.
c. 78, of course precluding all question as to inland bills. (c^) A
parol j)roinisc to accept an existing foreign bill is still considered
equivalent to an acceptance,(rt) and the same must be true of a
written promise, which will enure to the benefit of the holder,
even if made after the maturity of the bill, and though he was
not induced thereby to take it.(/;) The promise may be given to
the drawer, or to any other party to the bill after it has been in-
dorsed away, or to a person by whose direction and on whose
account the bill was drawn, though not a party to it.(c) And it
seems to be regarded as so entirely the equivalent of a regular
acceptance, that the drawer cannot revoke it, even with the con-
sent of the promisee, though no party to the bill had notice of
the acceptance. (fi?)

In America there appears to be a conflict of authority as to
whether a parol promise to accept a bill to be drawn is equivalent
to acceptance. On principle, we should say that it ought not to
be so considered ; [e) but, adopting the language of Marshall,
C. J., in the case in which the Supreme Court of the United
States unanimously determined the limitations to the rule, we
should state it to be the rule of American law, that a written
promise to accept a non-existing bill, made within a reasonable
time before the date of the bill, describing it in terms not to be

the bill on the faith of such promise. The language of Baron Parke is likewise gen-
eral, and it seems to be admitted that the decision would have been the same had the
promise been written. See the opinion of eminent English counsel in Russell v. Wig-
gin, 2 Story, 213.

(z) "No acceptance of any inland bill of exchange shall be sufficient to charge any
person, unless such acceptance be in writing on such bill, or, if there be more than one
part of such bill, on one of the said parts "

(a) Mendizabal v. Machado, 6 Car. & P. 218, affirmed 3 Moore & S. 841 ; Picrson
V. Dunlop, 2 Cowp. .571 ; Miln v. Prest, 4 Camp. 393.

{b) Wynne v. Raikes, 5 East, 514 ; Clarke v. Cock, 4 id. 57 ; Powell v. Monnier,
1 Atk. 611.

{d) Grant v. Hunt, 1 C. B. 44.

'e) Kennedy v. Geddes, 8 Port. Ala. 263. In Williams r. Win.ans, 2 Green, N. J.
339, a parol promise to accept a bill to be drawn was held valid, and in Bank of Michi-
gan V. Ely, 17 Wend. 508, 510, Nelson, C. J. said, that it was well settled that " a parol
promise to accept a future bill was not binding, unless the bill was taken by the holder
upon the faith and credit of such promise," referring to Ontario Bank v. Worthington,
12 Wend. 593.

25*

294 NOTES AND BILLS. [CH. IX.

mistaken, is, if shown to one who takes it on the faith of such
writing, a virtual acceptance. (/) It seems also that the bill
should be payable on demand, or at a fixed time after date, and
not after sight, so that there may be a certain time from which
the days are to be counted. (o^)

(/) So held in Coolidge v. Payson, 2 Wheat. 66, 2 Gallis. 233. See also Schim-
melpennich v Bayard, 1 Pet. 264 ; Boyce v. Edwards, 4 id. Ill ; Wildes v. Savage,
1 Story, 22 ; Russell v. Wiggin, 2 id. 213 ; Bayard v. Lathy, 2 McLean, 462 ; Storcr
V. Logan, 9 Mass. 55 ; Carnegie v. Morrison, 2 Met. 381 ; Kennedy v. Geddes, 8 Port.
Ala. 263, 3 Ala. 581 ; Carrollton Bank r. Tayleur, 16 La. 490; Vance v. Ward, 2
Dana, 95 ; Parker v. Greele, 2 Wend. 545, 5 id. 414. In Boyce v. Edwards, 4 Pet.
Ill, a letter written two years before the bill was drawn, and not referring to that par-
ticular bill, was held no acceptance. In Wilson v. Clements, 3 Mass. 1, two years in-
tervened between the promise and drawing the bill, and it was held no acceptance oi;
that account. The bill must be taken on the credit of the promise. M'Evcrs v. Ma-
son, 10 Johns. 207 ; Ontario Bank v Worthington, 12 Wend. 593. In Read v. Marsh,
5 B. Mon. 8, the language is somewhat ambiguous, but it is conceived that the court
did not intend to lay down the rule, that a promise to accept a. future bill, not taken
on the credit of the promise, operated as an acceptance. In Goodrich v Gordon, 15
Johns. 6, a letter containing the following instructions from the owner of a vessel to
the master, — " You will endeavor to ransom the vessel as low as possible, not to ex-
ceed $ 2,000, your draft on me will be honored," — was held tantamount to tlic accept-
ance of a bill subsequently drawn for that amount. In Parker v. Greele, 2 Wend. 545,
tlic terms of the letter were, " I have no objection to accepting for you at three and
four monihs." This was held to authorize a draft for the whole sum at four months,
and the holder was allowed to recover without showing what the terms proposed were,
or that they were complied with. This case was affirmed in 5 Wend. 414, by a vote of
14 to 8. There was a disagreement as to the burden of proof with regard to showing
what the terms were, and a compliance with them. Also some of the Senators held that
there should have been two bills drawn, one at three and the other at four months,
each for half the whole amount. It was also thought that the promise did not come
within the rule, that the bill should be drawn in terms not to be mistaken. In Bank
of Michigan v Ely, 17 Wend. 508, the words of the letter were : " You can make drafts
on me due in August next, to the amount of $ 10,000. Make them in sums of $ 1,000
each, and spread the time of their payment through the month." Only five bills were
drawn. The holder took drafts on the faith of the letter, and sued the defendant as
acceptor. The letter was treated as an acceptance. In Ulster Co. Bank v. McFar-
lan, 5 Hill, 432, tlie letter contained the following : " I hereby authoriA> you to draw on
me at ninety days, from time to time, for such amounts as you may require, provided
that the whole amount running and unpaid shall not exceed $ 3,000." This was held
to be a sufficient promise, although it will be seen that the bills were not specified,
cither as to number, amount, or date. In a subsequent suit between the same parties,
3 Denio, 553, it appears to have been conceded by the counsel that there was an acce|)t-
ance, but Senator Hand in a dictum denied this, stating that "the promise must point
to the |iarti(ular bills, and describe them in terms not to bo mistaken." Senators
Spencer and Talcott affirmed its correctness.

(;/) Wildes r Savage, 1 Story, 22 In this case Stori/, J. said : " It docs not ap-
pear to me that the doctrine ever was ajiplieable, or could be applied, to any bills of
exchange, excejit such as were payable on demand, or at a lixed limc afterdate.

CH. IX.] PROMISE TO ACCEPT. 295

Expressions of decided re<i;ret that tliis " doctrine of virtual
acceptance" was ever established, luive frequently been used.(/t)
But the rule above stated seems now to be part of the commer-
cial law of the country ; and in the notes we have endeavored to
illustrate by the cases the way in which the rule lias been ap-
plied, and the modifications which it has undergone.

The rules of law on this subject have been frequently applied

Where hills arc drawn payahle at so many days after sight, it is impracticable to ajiply
the doctrine, for there remains a future act to be done, — the presentment and siglit of tiie
bill before the period for whicli it is to run, and at which it is to become payable, can
commence, whether it be accepted or dislionored. How can the time be calculated
upon such a bill before it is presented 1 If a letter is written promising to accept a
non-existing bill to be thereafter drawn at six months' sight, when is the acceptance to
be deemed made ? At the time of the bill 1 Certainly not, for that would be at war
with the obvious intent of the parties, which plainly is that the acceptance shall be on
a future sight of the bill. If it is said that the acceptance is to be treated as made
when the bill is actually presented for acceptance, and it is dishonored by the drawee, it
is as plain that we set up a prior intent or promise against the fact. Upon what
ground can a court say, where a party jiromises to do an act in future, such for ex-
ample as to accept a bill when it shall be drawn and presented to him at a future time,
that ills promise overcomes his act at that time, — that his refusal to perform his
promise amounts to a performance of it 1 It is quite another question whether the
Irolder who has taken such a bill upon the faith of such promise may not have some
other remedy, either at law or in equity, for this breach of it, against the jtromisor.
My judgment is, that the doctrine of a virtual acceptance of a non-existing bill, by a
prior ](romise to accept it, when drawn, has no application to a bill drawn payaltle at
some fixed period after sight, for it amounts to no more than a promise to do a future
act ; I have looked into the authorities, and I do not find in any one of them that the
bill drawn, and to which the doctrine was applied, was a bill drawn payable at or after
sight"

(h) Lord Kenyan, Johnson v. Collings, 1 East, 98 : '-It is much to be lamented
that anything has been deemed to be an acceptance of a bill of exchange besides an
express acceptance in writing ; but I admit that the cases have gone beyond that line,
and have determined that there may be a parol acceptance ; that perhaps was going too
far, and I am not disposed to carry them to the length now contended for, and to say
that a promise to accept a bill before it is drawn is equally binding as if made after-
wards." " Admitting a promise to accept before the existence of the bill to operate as
an actual acceptance of it afterwards, was carrying the doctrine of implied acceptances
to the utmost verge of the law." Slonj, J., Wildes v. Savage, 1 Story, 22 : " It is
perhaps to be lamented that the doctrine of such virtual acceptances ever was estab-
lished, and if the question had been entirely new, I am well satisfied that it would not
have been recognized as fit to be promulgated by the Supreme Court, it being at once
unsound in policy and full of inconvenience. But that court yielded, as did the judge
who decided the case in the Circuit Court, Coolidge v. Payson, 2 Wheat. 66, to what
seemed at that time the true result of the English authorities upon an important
"ractical commercial question. I am not sorry to find that professional opinion has
settled down in England against the doctrine, although there is no pretence to say that
up to this very hour tliere has been any formal decision in Westminster Hall against it."

2'J6 NOTES AND BILLS. [CH. LX.

to thf\ acceptance of bills of exchange by a previous letter of
credit authorizing them to be drawn. "Where the bills are spe-
cifically described in the letter, drawn within a reasonable time
from the date, and taken on the credit thereof, they would come
under the terms of the rule which we have already stated ; but
some authorities have gone still further, and held that such a let-
ter would be regarded as an acceptance of all bills drawn by vir-
tue of it, and coming within its terms, though not described by
dates, numbers, or amounts. (i) As upon a point of this kind
uniformity is specially desirable, a general adoption might be
wished of the limitations upon anticipated acceptance i)y promise
which have been adopted by the Supreme Court of the United
States. We should greatly prefer saying that the drawer of such
a bill might have his action against the writer of the letter for his
refusal to accept, and also that the holder of the bill, having the
letter in his possession, with evidence that he had bought or re-
ceived the bill on the credit of the letter, which evidence may
be by indorsement on the letter or otherwise, should be consid-
ered as having sufficient privity to sustain the action iu his
own namc.(y)

(/) See Parker v. Greelc, 2 Wend. 545, 5 Wend. 414 ; Bank of Michi<,-an v Ely, 17
Weud. 508 ; Ulster Co. Bank v. McFarlan, 5 Hill, 432, 3 Denio, 553. The facts in these
cases are stated supra, p. 294, notcy". Banor^'ee v. Hovey, 5 Mass. 1 1 , is sometimes cited
as authority for this doctrine, but without foundation, as is conceived. In Storer r.
Logan, 9 id. 55, the bills declared on were both specified as to dates and amount in the
letter. In Cai-nejj;ie v. Morrison, 2 Met. 381, an action on a letter of credit specifying
no bills, the court said that there was " no .serious ground to contend that the under-
taking of the defendants was such an agreement to accept a particular specified bill as
to bring it within the authority of the American cases."

(;) The opinions of Sir W. Foliett, Sir John Bayley, Sir F. Pollock, and M. D.
Hill, in 1 Story, 26, are to the effect that, in England, no action whatever can be main-
tained on a letter of credit, by a holder of a bill taken on the faitli of the letter, because
there is no privity of contract between the parties. If upon such high authority this
may be regarded as the law in England, we still think that this is not the law in Amer-
ica In Carnegie v. Morrison, 2 Met 381, the question was elaborately discussed by
Shaw, C. J., who said (p. 396) : " The objection to such an action and tlie ground of
tliis defence arc, that the immediate parties to the transaction were Bradford on the one
side, and the defendants on the other ; that to this transaction the plaintifVs were stran-
gers ; and tliat, as Bradford acquired some right under it, and had a remedy upon it
against the defendants, their contract must be deemed to be made with him, and not
with llie plaintiffs. But this position presu|)poses that the same instrument may not
constitute a contract between the original parties, and also between one or both of them,
and others who may subscfjuentiy assent to, and l)ccome interested in, its execution ;
an assumption quite too broad and unlimited, which the law docs not warrant. In a

CH. LX.] PROMISE TO ACCEPT. 297

The question lias arisen as to how far a written authority given
by the drawer to a party to draw bills upon him can be consid
ered as an acceptance. The same principle should apply here,
we apprehend, as in the case of letters of credit. Where the in-

common bill of exchange, the drawer contracts with the payee that the drawee will
accept the bill ; with the drawee, that, if he docs accept and pay the bill, he, the
drawer, will allow the amount in account, if he has funds in the drawee's hands ;
otherwise, that he will reimburse him the amount thus paid. He also contracts with
any person who may become indorsee, that he will pay him the amount, if the drawee
does not accept and pay the bill. The law creates the privity. So in the familiar case
of money had and received, if A deposits money with B to the use of C, the latter may
have an action ajj:ainst B, thouc-h they are in fact stran^jcrs. But if C, not choosing to
look to B as his debtor, calls upon A to pay him, notwithstanding such deposit, (as he
may.) and A pays him, A shall have an action against B to recover back tlie moncj'
deposited, if not repaid on notice and demand. The law operating upon the act of the
parties creates the duty, establishes tlie privity, and implies the promise and obligation
on which the action is founded. Hall v. Marston. 17 Mass. 575. So in regard to a
very common transaction ; when one deposits money in a bank to the credit of a third
person, and forwards him a certificate, or other evidence of the fact, the bank is regarded
as coming under an obligation to i)ay the money to the person to whose credit it is thus
deposited. So it is held in England, when the depositary assents to receive the money,
though there is no consideration moving from the plaintiff to the defendant. Lilly v.

Hays, 5 A. & E. 548 (P. 402 :) It seems to have been regarded as a settled point,

ever since rcjiorts have been published in this State, rather than as an open question to be
discussed and considered. Tlie position is, that where one person, for a valuable con-
sideration, engages with another, by simple contract, to do some act for the benefit of a
third, the latter, who would enjoy the benefit of the act, may maintain an action for tlie
breach of such engagement." The learned judge then referred to Felton v. Dickinson,
10 Mass. 287 ; Arnold v. Lyman, 17 id. 400 ; Dutton v. Poole, 1 Vent. 318 ; and resumed
(p. 40.3) : " The court arc of opinion that the promise of the defendants, made by the let-
ter of credit, in the present case, comes within the principle of the cases cited. Brad-
ford was indebted to the plaintiffs, and was desirous of paying them ; and he must
resort to some mode of remittance. He had funds either in cash or credit with the de-
fendants, and entered into a contract with them to pay a sum of money for him to the
plaintiffs. And upon the faith of that undertaking, he forbore to adopt other meas-
ures to pay the plaintiffs' debt. He gave the plaintiffs notice of what he had done,
and sent them the instrument as authentic evidence of the fact. They assented to and
affirmed it, as an act done in their behalf, and gave the defendants notice thereof, and,
confornnibly to the terms of the letter of credit, drew their bills on the defendants.
The refusal to accept was a breach of the promise thus made, and. in the event that
happened, the insolvency of Bradford, the plaintiffs lost their debt. It would be
in vain to say that this promise was not made for the benefit, or, according to the
terms of some of the cases, for the interest of the plaintiffs. The result shows that, by
a compliance with the jjlain, literal terms of their promise, on the part of the defend-
ants, the plaintiffs would have received their debt. By a refusal to perform that prom-
ise, they have lost it.- They are therefore damnified to tlie full amount of the sum for
vrhich the credit was given." Murdock v. Mills. 11 Met 5 ; Barney v. Newcomb, 9
Cush. 46. This doctrine is fully approved by Story, J., Russell i\ Wiggin, 2 Story,
213 ; Wl'rtis V. Savage, I id. 22 ; Baring v. Lyman, id. 396 ; Wallace v. Agry, 4 Ma-

298 KOTES AND BILLS. [CH. IX.

strument intelligibly describes the bills to be drawn, and an
unreasonable time has not elapsed between its date and that ol*
the bills, and they are taken on the credit of the writing, we
should hold that this was a virtual acceptance of bills drawn in
conformity with its terms. And if the bills are not described
with sufficient particularity to constitute acceptance, our opinion
is that an action may be maintained for breach of the promise to
accept, as in the case of letters of credit just mentioned. Some
cases lay down the broad rule, that an authority given by A to B
to draw bills on him is virtually an acceptance of any l)ills drawn
within such authority; but we believe that in most of them the
language is more comprehensive than the cases themselves war-
rant, or else that the distinction between an action on the bill as
an accepted bill, and one on the failure to perform the promise,
is not sufficiently attended to.(/t) In this country a parol or
written promise to accept an existing bill is treated as accept-
ance, unless it be made insufficient by statutory provision. (/)

son, 336 ; Boyce v. Edwards, 4 Pet. Ill, in which the distinction between an action
on a bill as an accepted bill, and one founded on the breach of a promise to accept, is
fully pointed out ; Townsley v. Sumrall, 2 id. 170. See the cases cited supra, p. 294,
note/; also Adams /;. Jones, 12 Pet. 207 ; Edmonston r. Drake, 5 id. 624 ; Lawrason v.
ilason, 3 Cranch, 492. Carrollton Bank v. Taylcur, 16 La 490, seems to hold that an
action can be maintained by the holder, unless the letter is addressed to lijm. In Birck-
head v. Brown, .5 Hill, 634, it was held that, if the letter is special, that is, addressed to a
particular individual, he alone has the right to sue for breach of promise to accept,
and that a third party, who has advanced money on the credit of it, cannot, for want
of privity of contract. This case was affirmed by a vote of 11 to 11, in 2 Donio, 37.5.

(k) See Van Rcimsdyk v. Kane, 1 Gallis. 630 ; Banorgee v. Hovcy, ^ Mass 23 ;
Mayhcw v. Prince, 11 id. 55 ; Wallace v. Agry, 4 Mason, 336 ; Lewis i'. Kramer, 3
Md. 26.5 ; Beach v. State Bank, 2 Ind. 488. The cases of Ulster Co. Bank v. McFar-
lan, .5 Hill, 432, 3 Denio, .5.53, and Bank of Michi<,'an v. Ely, 17 Wend. .508, cited supm,
p. 294, note f, ai-e authority for the doctrine that a written authority is a virtual ac-
ceptance. In Ulster Co. Bank v. McFarlan, it was decided that an authority to draw
at ninety days was an authority to draw at ninety days after si<;Iit, and not after date.
But in Barney v. Newcomb, 9 Cush. 46, it was held that one authorized to draw on
another " at ten or twelve days," may exercise Ills own discretion whether to draw after
sight, or after date ; and the correctness of the decision in Ulster Co. Bank v, McKarlan is
denied. The court say : " The oi)inion of the Supreme Court (of New York) was placed
upon the jrround that the drawee, by authorizin;; a draft at ninety days, intended to se-
cure himself a credit of ninety days after notice that the liill was drawn ; but if dniwu
ninety flays after date, he might not have any time, as the holder miglit not i)resent tho
bill till it came to maturity. The answer to that is, if he meant so, he should have said
60 ; and as he did not say so, there is nothing to show that he meant so, as it is as usna}
to draw after date as after sight "

(/) Edson i;. Fuller, 2 Foster, 183 ; Grant v. Shaw, 16 Mass. 341 ; Ward v. A'lcn, 3
Met. 53.

CH. IX.] PROMISE TO ACCEPT. 299

Among the more specific application of the principles which
roguhite acceptance by previous authority, the following may be
mentioned. Authority to an agent to arrange an unsettled affair
and draw on his principal for necessary sums, is a virtual accept-
ance of a draft made with the knowledge and assent of such
agent ; but the drawer cannot substitute a new draft in favor of
another payee, without the consent of the drawee or his agent. (w)

If authority is given by two or more persons to draw on them,
or either of them, and they promise jointly and severally to hold
themselves accountable for the acceptance and payment of such
drafts, the signers are jointly and severally bound to tlie payment
of acceptances made by one of them.(y^) Autiiority from the
directors of a corporation to the treasurer to accept drafts, must
be strictly proved, but when proved, a valid consideration and a
proper purpose for acceptance may be presumed, (o)

In a case where a firm in England sent out an agent to Amer-
ica, with authority to draw bills on the firm, sell, and discount
them, which he did, but the firm became bankrupt before the bills
arrived in England, it was held that no proof could be made by an
indorsee of a bill, as the authority to the agent did not amount to
an implied acceptance. (;?) If the authoiity be upon terms or con-
ditions, compliance with them is necessary to enable the holder to
recover of the party authorizing the draft to be drawn. ((/)

If the draft or bill already exists, a parol promise to accept it
must be on a dis^tinct consideration, or it bears no force, either as
an acceptance or as a promise to accept ; if it rests on a consid-
eration, it is a good acceptance. (r) If on presentation of the bill
the drawee refuses to accept, but promises the holder to pay the
sum for which it was drawn on the day on which it is payable,
this is not an acceptance, even if the drawee have funds of the
drawer in his hands, and ought in justice to have accepted the
bill. (5) If, however, the bill were drawn on a specific fund, so

(m) Gates v. Parker, 43 Maine, .544.

(n) Miehiji-an State Bank v. Peck, 28 Vt. 200.

(o) Partridije v. Badger, 25 Barb. 146.

(p) Ex parte Bolton, 3 Mont. & A. 367.

(q) IMurdock v. Mills, 11 Met. 5 ; Ulster Co. Bank v. McFarlan, 5 Hill, 432, 3 De-
nio, 553.

(r) Strohecker v. Cohen, 1 Spcers, 349.

(s) Lutf ;;. Po|)e, 5 Hill, 413, 7 id. 577. The holder of a l.ill pnyal.lr at si-ht pre-
sented it, but the drawee refused, saying that he had no t'limls, biii afurwards .-aid ha

300 NOTES AND BILLS. [CH. IX.

as not to amount to a negotiable bill of exchange, the draft and
promise might then not only hold the drawee, but work an equi-
table assignment of the fund.(^) In some places there is a cus-
tom for banks to certify checks drawn upon them as good. This
has been treated as a promise to pay such checks on presentment,
and equivalent to acceptance, rendering the bank liable as ac-
ceptor, as in the case of bills of exchange. (z^)

SECTION III.

CONDITIONAL AND QUALIFIED ACCEPTANCES.

In the chapter upon the essentials of a promissory note, and
the section on the certainty of the fact of payment, we have seen
that if the promise to pay be upon condition, or be dependent on
a contingency, the instrument is not a negotiable promissory
note. And it has also been said repeatedly, that an acceptor of
a bill stands in the same relation to it as the promisor of a note.
Here, however, is an important difference. Not only may a
drawee, as we have seen, be held as acceptor on a promise to
accept, but if he actually accepts on a condition or a conthigency,
this acceptance may be valid and sufficient.

The law on this subject is, however, somewhat difficult, and in
some respects not altogether certain.

In tlie first place, we would remark, that the subject of con-
ditional acceptance is closely connected with that of a promise
to accept, a conditional acceptance being no more in fact than a
promise to accept upon tiie happening of some future event or
circumstance. Whether the focts proved in any case amount to

would answer it at the commencement of the next quarter. The holder did not agree
to wait, remarkini,' that he would send it back to the drawer. The hill, however, was
not sent ba<'k, l)Ut presented again hy the same holder some time nflcr the time men-
tioned. Ilfhl, that these facts did not amount to an acceptance or a contract; and
that evidence that the drawee had funds at the time of refusal was irrelevant. Peck
V. Cochian, 7 Pick. 34. The drawee of an order for a seaman's share of the proceeds
of a whalinj; voyage declined to accept, hut took the order, promising to try and save
the amount for the payee, if the drawer con.sented. The drawer, on his return, refused
to assent. Ilihl, no acceptance or assignment. Parkhurst v. Dickcrson, 21 Pick. SO?.

(t) So said in Luflf u. Pope, .5 Hill, 413; Harrison v. Williamson, 2 Edw. 430
See, for an illustration of this principle, Berly r. Taylor, 5 Hill, 577.

(u) See post, Chapter on Checka.

CH. IX.] CONDITIONAL AND QUALIFIED ACCEPTANCES. 301

an absolute or to a conditional acceptance, is a question of law for
the court to determine. (?;) It has been held that an acceptance,
absolute on its face, cannot be shown to be conditional, by parol,
between the immediate parties thereto, as this would be to con-
tradict the terms of the written contract ; (w) but if the accept-
ance is ambiguous, it may be explained by parol. (.r) An absolute
acceptance may be qualified by an express condition in a sepa-
rate and simultaneous writing, because both instruments are
regarded as forming but one contract ; but this cannot affect a
third party, who took the bill without knowledge of the con-
dition. (y) A conditional acceptance becomes at once absolute
on the performance of the condition, but it should still be set
forth in the declaration as conditional, with an averment of per-
formance, (s) the burden of proof being upon the plaintiff to
show such performance. (a)

The following are some of the instances in which an accept-
ance has been held conditional. A promise to pay when certain
goods consigned to the drawee are sold ; (b) when in cash for the
cargo of Ship Thetis ; (c) to accept when a navy bill is paid ; (d)
to pay as remitted from thence at usance ; (e) that the bill shall

(») Sproat i;. Matthews, 1 T. R. 182, Willes,J. dissenting. BuUer, J. said : " Wliat-
ever may liave been the doubts formerly of what amounted to acceptance, I conceive it
is the sole province of the court to decide wiiether this is an absolute or a conditional
acceptance." Edson v. Fuller, 2 Foster, 183 ; Barnet v. Smith, 10 id. 256.

(iv) Heaverin v. Donnell, 7 Sniedes & M. 244. Adams v. Wordlcy, 1 M. & W.
374, was an action by the drawer against the acceptor. The plea averred an agreement,
not stated to be in writing, which set forth that the plaintiff agreed not to call uj)on the
defendant till an action against a third party was determined. The plaintiff demurred,
and the demurrer was sustained. Parke, B. said : " At present it is enough to say that
you seek, by a parol contemporaneous agreement, to alter the absolute engagement
entered into by the bill." By Lord Abinger, C. B. : " It would be very dangerous to
allow a party to alter in such a manner the absolute contract on the face of a bill of
exchange." In Hoare v. Graham, 3 Camp. 57, Lord Ellenhorowjh said : " This would
be incorporating with a written contract an incongruous parol condition, which is con-
trary to first principles."

(r) Swan v. Cox, 1 Marsh. 176.

(y) Bowerbank v. Monteiro, 4 Taunt. 844 ; Mason v. Hunt, 1 Doug. 297.

(2) Langston v. Corney, 4 Camp. 176 ; Ralli v. Sarell, 1 Dow. & R. N. P. 33 ; Swan
r. Cox, 1 Marsh. 176.

(a) Read v. Wilkinson, 2 Wash. C. C. 514 ; Gammon w. Schmoll, 5 Taunt. 344.

(6) Smith V. Abbot, 2 Stra. 1152.

(d) Pierson v. Dunlop, 2 Cowp. 571.

(e) Banbury v. Lissett, 2 Stra. 1211.
VOL. I. 26

302 NOTES AND BILLS. [CH. EL

be paid when funds arrive from France ; (/) to renew an accept-
ance till sufficient effects are received from the estate of A ; (g)
to pay if a certain house should be given up to the drawee before
a day named ; (h) a statement that the bill will not be accepted
until the ship with the wheat arrives ; (i) that the drawee cannot
accept till stores are paid for ; (j) that the drawee did not know
whether the ship on whose cargo the bill was drawn would come
to London, and therefore he could not accept, with a subsequent
statement that the bill would be paid, even if the ship was
lost ; (k) an agreement to accept on consideration that goods
shall be consigned to the acceptor to answer the bill, together
with a policy of insurance upon them ; (/) a promise by the
drawee to the holder, that, if he would get back the bill after it
had been protested and returned, it should be paid ; (m) to pay
if the consignment was sold when the bill became due ; (n) an
acceptance according to a certain contract. (o)

Acceptance is sometimes made " when in funds." Of course
the acceptor is then liable only when he has funds. In one case
it was held that this meant when the drawee has funds which
the drawer has a present right to demand and receive, and did

(/) Mendizabal v. Macluido, 6 Car. & P. 218, 3 Moore & S. 841.

(7) Bowerbank v. Moiiteiro, 4 Taunt. 844.

(h] Swan v. Cox, 1 Marsh. 176.

(i) Mihi V. Prcst, 4 Camp. 393.

( ;') I'icrson v. Dunlop, 2 Cowp. 571.

(/.•) Sproat V. Matthews, I T. 11. 182. In this case tlie court hckl tliat this was a
conilitional acceptance, depending upon either one of the two events mentioned, as it
was evident from what passed, that there was no intent to accept unless the ac-
ceptor should have funds in his hands with which to reimburse hiinself; that, if
tlic ship came to London, he would have the disposal of the cargo ; if she was lost, he
had in his possession a policy of insurance, a lien which would provide him witii
sufficient funds.

(/) Ma-son v. Hunt, 1 Doug. 297.

(w) Grant v. Siiaw, 16 Mass. 341. In Anderson v. Hick, 3 Camp. 179, a hill drawn
on the defendants was returned unaccepted; but one of the defendants afterwards said
to the plainliff: "If you will .send the bill to the counting-house again, I will give
directions for its being accepted." No proof was oflercd that the bill was again sent to
the defendants' counting-house, it being contended that the fact amounted to an
absf)lute acceptance; but Lord Ellmhorouijh said: "This was only a conditional
promise to aecept, and could not operate as an accc[)tance till the bill was .sent back to
the countintr-honse." Tlie idaintilf was accordingly nonsuited. So also Co.\ v. Cole
man, Cas. Temp. Ilardw., London od , 75.

(«) Browne r. Coif, 1 McCord, 408.

(0) Kellogg V. Lawrence, Hill &. D. .332.

CH. IX.] CONDITIONAL AND QUALIFIED ACCEPTANCES. 303

not apply to wages for daily labor earned after acceptance, and
needed for the daily subsistence of the laborer. (/?)

The acceptance of an order payaljle "if in funds," is regarded
as an admission by the acceptor that he has funds, and he cannot

(p) Wintermute v. Post, 4 N. J. 420. Haines, J. said : " The terra ' when in funds '
literally means when the aeceptor is in the possession of cash which the drawer has a
present rii^ht to demand and receive, or to appropriate by his bill, whether such funds
be the product of labor, or of commodities furnished, of goods sold, or money deposited
or collected, or any other source. And such, in my judgment, is its fair commercial
and judicial construction, and any other would make the meaning of the words to depend
upon the peculiar circumstances of each particular case, and would produce doubt and
uncertainty, and tend to impair the value and the convenience of negotiable paper, and to

the promotion of strife and litigation It is not to be supposed that the parties

meant that the pittance of each day's work should be withheld from the necessities of
the laborer's fiimily till they should accumulate to the amount of the bill. The law
does not require it, and political economy and common humanity forbid it." In Hun-
ton V. Ingraham, 1 Strob. 271, it was held that where a factor accepts a planter's order,
payable wlieu in funds, this is a promise to pay out of the first funds which shall come
into his hands ; and the drawee cannot apply them first to the payment of a debt due
him from the drawer, as this would be "adding another condition to the acceptance,
and the acceptance would then mean, they would pay the order when they had funds in
hand over and above the amount of their debt." It seems that the factor may, however,
deduct expenses incuiTcd by him, with reference to the particular consignment. Ibid.
In Campbell v. Pettengill, 7 Grcenl. 126, "funds" was held to mean cash, and not
good and available demands or securities till converted into money. The court also ex-
press an opinion that, although the drawer is not entitled to notice when he has no funds
in the drawee's hands, yet where, instead of funds, the drawee has available demands, no-
tice must be given to the drawer. In Andrews v. Baggs, Minor, 173, it was held, that,
in order to recover of the drawer on a bill accepted when in funds, it is necessary to
prove that the acceptor had received funds sufficient to pay the bill according to its
terms, demand by the holder, and notice of non-payment to the defendant. Sec Gallery
V. Prindle, 14 Barb. 186; Knox v. Ileeside, 1 Miles, 294. In Swanscy c. Bieck, 10
Ala. 5.33, it was held, that, if the administrator of the drawee receives the funds, he is
liable on tlie deceased's acceptance. A general acceptance of an order payable out of
a particular fund imposes upon the plaintiff the obligation of showing that the particu-
lar fund was received by the acceptor. Owen v. Lavine, 14 Ark. 389. Where A
placed a note in B's hands, for which B is to account, and afterwards A draws on B
an order payable out of the first proceeds of the note, and B accepts ; it is no defence
for B, that the note was put into his hands before the order was drawn. Bird v. McEl-
vaine, 10 Ind. 40. An acceptance of an order to pay $ 200 out of the first money of the
drawer received by the drawee on account of a newspaper establishment, binds the
acceptor to pay, from time to time, on reasonable request, as money is received, and a
judgment against him for a part of the sum, on his refusal to pay on request, is no bar
to a subsequent action for a further sum received by him after the commencement of
the first action. Shaw, C. J. said : " The question is, whether, by a fair construction,
the acceptance in the present case is an undertaking to perform one duty at one time,
and then to terminate, or whether it is a stipulation to do more than one It is an
acceptance and undertaking to pay the plaintiff $ 200 out of the first money belonging
to the drawer, which the aeceptor should receive on account of the Eastern Star, a

304 NOTES AND BILLS. [CH. LX.

afterwards allege a want of consideration in an action by the
holder. {^)

An absolute acceptance of an order payable on a contingency
is the same in legal effect as if the instrument had all the requi-
site certainties of a bill of exchange with a conditional acceptance.
Thus, an absolute acceptance of an order payable in the goods
of the drawer, or the proceeds thereof, amounts to an agreement
to pay the order according to its tenor, and, in order to recover
on such acceptance, the holder must aver and prove that the
drawee had in his hands either the goods specified or the pro-
ceeds. (/•) An acceptance of an order for the payment of money
out of tlio amount to be advanced to the drawer when certain
houses, which he was then erecting on the drawee's land, should
be so far completed as to have the plastering done according to
a contract between the parties, is conditional ; and the acceptor's
liability is dependent upon the contingency of the work being
completed according to the contract, nor will such acceptance
become absolute by a subsequent cancellation of the contract by
the drawee and the assignee of the drawer. (5) Compliance with
the condition is in the nature of a condition precedent, and if
the condition is not complied with, the acceptance is of no effect.

newspaper establishment, transferred by the drawer to the acceptors. It is obviously a
conditional undertaking. Was the whole obligation to be void, if the amount collected
should not reach S 200, and all riglit to demand anything suspended until the full
sum should be received ? We cannot consider this the true meaning. It appears to
us that the intention was, that the acceptors should pay to the amount of $ 200, if so
much should be collected ; otherwise, such part of the sum as should be collected. This
seems to have been the construction adopted by the acceptors, by their jiaying a part,
and yielding to a judgment for a part. But if payment was not to be suspended until
tJic full $ 200 should be collected, and as it might never be collected, then the conclu-
sion of law must be, that such part as should be collected should be paid in reasonable
time, if requested. No other reasonable construction can be put u]3on it. It is a gen-
eral rule, tiiat when a duty is to be done, and no time fixed, it must be done in a
reasonable time. Taking tliis legal conclusion, in connection with the terms of the
acceptance, it is an undertaking to pay out of a jiarticular fund, from time to time a.s
received, on reasonable retiuest. The payment, therefore, of part of the anu)unt does
not bar the claim for the balance when collected ; and we think the contract, being to
pay from time [to time] on request, is a contract to be j)erformed at difierent times, and
thiTefore a judgment for one breach, in not paying a part, is not a bar to an action on
another breach, in not paying on demand the balance admitted to have been collected."
Perry v. Harrington, 2 Met. 368.

(7) Kr int)l<! /). Lull, .-} McLean, 272.

(r) Atkinson r. Manks, 1 Cowcn, 691.

(«) Newhall v. Clark, 3 Cush. 376.

CII. IX.J CONDITIONAL AND QUALIFIED ACCEPTANCES. 305

Thus, where an agreement was made to accept, in considera-
tion that goods of a certain vahie should be consigned to the ac-
ceptor to answer the bill, and goods of a less value were sent, the
acceptance was held not to be binding. (^) And where a person
agreed to accept provided the goods against which the bill was
drawn should be sold before the maturity of the bill, and they
were attached by a creditor of the drawer, while in the drawee's
hands, it was held that there was no acceptance. (w) It would
seem that, even if the drawee himself should, by any act, pre-
vent the contingency from happening, he could not be liable as
acceptor. The remedy of the holder would probably be by a
special action on the case, and the sura to be recovered would not
be the debt due by the acceptance, but damages for the wrongful
act of the acceptor in preventing the completion of the contract,
by reason of which the holder has sustained the loss of the debt.
The burden of proof would be upon the plaintiff to show that tlie
defendant caused the prevention of the completion of the con-
tract, and any evidence on the part of the acceptor to show that
the drawer had failed or been unable to perform the contract, by
reason of death, sickness, insolvency, or other inability, would be
competent to rebut the charge. (y)

Whether an acceptance payable at a particular place is a con-
ditional acceptance, or not, has been much discussed, and the
opinions of many learned judges have been given on both sides
of the question. The Court of King's Bench, in England, for a
long time held sucli an acceptance not to be conditional ; that
the word " Accepted " expressed the contract, and the words
" payable at a certain place " were in effect a memorandum
which was inserted as a kind of accommodation between the par-
ties, to which the holder of the bill was not bound to attend, (t^?)

(t) Mason v. Hunt, 1 Doug. 297.

(u) Browne v. Coit, 1 McCord, 408.

(v) SItaw, C. J., Newhall v. Clark, 3 Cush. 376.

{lo) The first case was that of Smith v. De hi Fontaine, Holt, N. P. 366, note (1785),
where Lord Mansfield, at Nisi Prius, held such an acceptance absolute, and proof of de-
mand at the place specified unnecessary. The same was held, at Nisi Prius, by Lord
Ellenhorougb, in Lyon v. Sundius, 1 Camp. 423 (1808) ; and, in reference to a note, in an
action against the maker, by Bai/Iey, J., in Wild i\ Ilennards, id. 425, note (1809), and
by Lord EUenboroucih, in NichoUs v. Bowes, 2 id. 498. These cases were followed by
Fenton v. Goundry, 13 East, 459 (1811), wliere this rule was laid down by an authori-
tative decision of the King's Bench, Lord Ellenborough, C. J. and Grose and Bayley,

Vol. L— U

sot NOTES AND BILLS. [CH. IX

The Court of Common Pleas, on the other hand, held that such
an acceptance was conditional ; that all the words taken together
expressed the contract, which was, that the acceptor promised to
pay, provided the bill was presented at the place mentioned, and
that presentment at the place stipulated must be averred and
proved. (.r) The point was finally settled, at law, by the House

JJ. delivering opinions. In Hodge v. Fillis, 3 Camp. 463 (1813), the drawer drew
the bill payable in London, and the acceptor accepted it payable at a banker's there.
Lord Ellenliorough held that an averment of presentment at the banker's was material,
and must be proved. Gihhs, C. J. followed these decisions in Head v. Seweli, Holt,
363 (1816), but there seems to be some doubt about the correctness of this report. The
cases in the King's Bench, with reference to promissory notes payable at a specified
place, seem hardly to be consistent with the doctrine laid down by the same court in ref-
erence to bills of exchange. In Sanderson v. Bowes, 14 East, 500, Dickinson v. Bowes,
16 id. 110, and Howe v. Bowes, id. 112, it was decided that a demand of payment of a
note at the place specified was necessary, and the following distinction was taken : that
the place, being specified in the body of the note, is incorporated in the original form of
the instrument, while tlie place designated in the acceptance was no part of tiic original
conformation of tlie bill itself. This distinction can hardly be sustained. Lord Eldon,
in his opinion in Rowe v. Young, 2 Bligh, 391, infra, note y, said with reference to it :
" Somehow or otiier it seems to ha\e been assumed, that, not being in the body of the
bill, it is not to be considered as being in the body of the acceptance, a conclusion
which it is extremely difficult, I think, to adopt." Bai/lej/, J., in the same case, said :
"I am free to confess that I doubt the propriety of those decisions (Sanderson v.
Bowes, Dickinson v. Bowes, Howe v. Bowes), although I was myself a party to them,
and I think it more manly to say that I consider my opinion in those cases erroneously
formed, than to attempt to distinguish those cases from Fenton v. Goundry by the use of
nice and subtle differences." Another distinction taken is, that the one class of decis-
ions refers to promissory notes, and the other to bills of exchange ; but this ground is
hardly tenable. Another is, that the notes were jjayablc on demand, while the bills or
acceptances were payable at a particular time, and that in the latter case tlie defend-
ant may readily make an averment that he was ready at the time and place to pay,
and that the other jiarty was not ready to receive the money ; but in tlie former, as the
time of payment depends entirely upon the pleasure of the holder of the note, the de-
fendant cannot set up such a defence. On this ground, if any, it is api)rehended that
the two classes of cases may be distinguished. In Parker i\ Gordon, 7 East, SS."), it
was decided that presentment for j)aymont of a bill accepted payable at the acceptor'8
banker's after banking hours was insufficient, and no evidence of dishonor, so as to
charge the drawer. In this case no presentment to the acceptor himself was shown,
and it was an action against the drawer; so that a distinction may well be drawn be-
tween this case and the others mentioned above. See also Elford v. Teed, 1 Maule &
S. 28. In Rodic v. Campbell, 3 Camp 247, an action by an indorsee of a note, pay-
able at a specified place thirty-one days after date, against an indorser. Lord Klloi-
boroui/h held it to be a fatal variance not to state that the note was so payable in the
declaration.

(r) The first case in the Common Bench was Ambrose v. Ilopwood, 2 Taunt. 61
(1809), an action against the drawer, where it was held, tliat, if the declaration alleges
a bill to be accepted payable at tlie house of certain persons at a particular jilace, it

CH. EX.] CONDITIONAL AND QUALIFIED ACCEPTANCES. 307

of Lords, who decided that, if a bill of exchange is accepted pay-
able at the house of A & Co., it is a conditional acceptance,
restricting the place of payment, and the holder is bound to pre-
sent the bill at that house for payment in order to charge the
acceptor of the bill. If he brings an action upon the bill against
the acceptor, he must in his declaration aver, and on the trial
prove, that he made such presentment, and for want of such
averment the declaration was held bad on demurrer, thereby re-
versing the judgment of the King's Bench. (y) In consequence

must aver that the bill was presented for payment at that plaee, and not to tho=e per-
sons generally. Then followed Callaghan v. Aylctt, 3 id. 397, 2 Camp. 549 (1811),
a suit by the drawer against the acceptor, which decided that, if a bill is accepted pay-
able at a banker's, it must be presented there for payment, and neglect so to present it
discharges the acceptor. The next case was Gammon v. Schmoll, 5 Taunt. 344 (1814),
where the court adhered to their former decisions, notwithstanding the cases in the
King's Bench, Heath, Chambre, and Dallas, JJ. delivering opinions. The case of
Bowes V. Howe, id. 30, in the Exchequer Chamber (1813), sustained the decision of the
King's Bench in reference to promissory notes, but reversed it on another point, Mac-
Donald, C. B. delivering the opinion. It has been decided in Saunderson v. Judge, 2
H. Bl. 509, Richards v. Milsington, Holt, 364, note, Price v. Mitchell, 4 Camp. 200,
Exon I'. Russell, 4 Maule & S. 505, that if the place was specified in a memorandum
at the foot of the bill or note, under the signature of the maker or acceptor, the pay-
ment was not conditional. This has been so decided since the Stat. 1 & 2 Geo. IV.
c. 78, in Williams v. Waring, 10 B. & C. 2, 5 Man. & R. 9, and it was held in Exoa v.
Russell, 4 Maule & S. 505, that a description of a note with such a memorandum at the
foot, as payable at a particular place, is a variance. Contra, Sproule v. Legg, 3 Stark.
156. But if the declaration merely states that the maker made the note payable at the
place, without saying that it was so payable according to the tenor of the note, this does
not amount to a misdescription, and may be rejected as superfluous. Hardy v. Wood-
roofe, 2 Stark. 319. In Trecothick v. Edwin, 1 id. 468, Lord Ellenhorough held, that, if
the memorandum is printed, it must be considered as a part of the note, having been
made at the same time. But qucere. There appears to have been no doubt but that,
in cases between the indorsee and drawer, in both courts, a presentment at the place
designated in the acceptance was necessary ; so where the place was specified by the
drawer in the body of the bill. Tindal, C. J., Gibb v. Mather, 8 Bing. 214. See Roche
V. Cami)bell, 3 Camp. 247.

[y) Rowe p. Young, 2 Brod. & B. 165, 2 Bligh, 391 (1820), Lords Eldon and Redes-
•dale delivering opinions. The opinions of the twelve judges had been taken on the
following points. First, whether the holder was bound to present the bill at the place
designated. This was answered in the affirmative by Dallas, C. J., Best, Burrough,
Park, Richardson, JJ., Garrow, Wood, BB. ; in the negative by Abbott, C. J., Bay-
ley, Holroyd, JJ., Richards, C. B., Graham, B. (7 — 5). Second, whether it is neces-
sary that such presentment should be averred in the declaration. This was answered
in the affirmative by Dallas, C. J., Burrough, Park, JJ., Wood, B. ; in the negative
by Abbott, C. J., Best, Baylry, Holroyd, Richardson, JJ., Richards, C. B., Garrow,
Graham, BB. (4 — 8). It will be observed that the case was decided against the
opinions of the majority of the judges, as to this last point. The ground taken by those
who answered in the negative was, that the acceptor's readiness to pay at the place

308 NOTES AXD BILLS. [CH. IX.

of this decision, the statute 1 & 2 Geo. lY. c. 78, was passed,
reciting that the practice and understanding of merchants had
been contrary to this decision. It enacted, tliat an acceptance
payable at a particular place, without further expression, shall not
be deemed a conditional acceptance ; but if it is payable at a
specified place " only, and not otherwise or elsewhere^'' it shall
be considered conditional. (sr) The courts in this country hare,

should be set forth by him, as a matter of defence, in a special plea averring that fact.
The reason for sustaining the affirmative was, that the plaintiff must declare upon the
contract, and must aver everything material that the contract contains. Third, whether
such acceptance was conditional or not. This was answered in the affirmative by the
same judges who decided the affirmative of the first question ; in the negative, by those
who decided the negative of the same. Fourth, whether the payee, by taking an ac-
ceptance qualified as to the place of payment, without the authority or consent of the
drawer, would discharge the drawer, so that the payee could maintain no action against
him upon the bill. An opinion that he would not be discharged, unless it could bo
shown that he was injured or materially inconvenienced, was expressed by Bayleti,
Beat, Bnrroufjh, Park, Richardson, JJ., Garrow, Wood, BB. ; that no action could
be maintained upon the bill, by Abbott, C. J., IJohoyd, J., Richards. C B. The difti.
culty on this point seemed to be, whether making the discliarge of the drawer depend
upon the question of inconvenience or injury would not be introducing too lax a rule,
and give rise to great uncertainty, and hence it would be better to lay down the rule,
that the drawer would be discharged, in all such cases, unless notice was sent to him.
Some of the judges expressed an opinion that it would be immaterial if the place speci-
fied were in the same town where the acceptor lived ; otherwi.se if in a difterent town.
In Rhodes v. Gent, 5 B. & Aid. 244, the acceptance was payable, when due, at a particu-
lar ])lace, but the bill was not presented till some days after maturity. The acceptor
was still held liable, having sustained no injury thereby. Abbott, C.J. said : " The case
of Rowe V. Young goes the length of holding that a presentment is necessary at the
particular place specified ; and perhaps it may go further, and may exonerate the ac-
ceptor in case, by the omission to present in time, he sustains any actual prejudice;
but it cannot extend to a case like the present, where no such injury is proved to have
arisen in consequence of the omission to i)rescnt the bill for payment when due."

(z) This statute, called Sergeant Onslow's act by Best, C. J., Selby v. Eden, 3 Bing.
^11, 613, has been held to apply, in the case of bills, to actions against the acceptor
alone. In a suit against tlie drawer, pVcsentment at the place designated must bo
pro\-ed. Gibb v. Mather, 8 Bing. 214, 1 Moore & S. 387, 2 Cromp. & J. 254. Tindal,
C J. said : " In cases between the indorsee and the drawer, upon n special accept-
ance by the drawee, no doubt appears to have existed but that a presentment at tho
place specially designated in the acceptance was necessary in order to make the drawer
liable u|)on the dishonor of the bill by the acceptor." " It appears to us that the stat-
ute noitlior intended to alter, nor has it in any manner altered, the liability of drawers
of bills of exchange; but that it is confined in its operation to the case of acceptors
alone." See Kmblin v. Dnrtnell, 12 M. & W. 830. It has been decided, that where the
placr' is designated in the body of the bill, an acceptance is absolute, unless it contains
the words required by the statute, or their equivalent. Selby v. Kden, 3 Bing. 611, 11
,T. B. Moore, .511 ; Faylc v. Bird, 6 B. & C 531, 2 Car. & V. .303, 9 Dow. & R. 639.
where Lord Tmterdm said that he should liave entertained some doubt whether t'lc casp

en. L\.] CONDITIONAL AND QUALIFIED ACCEPTANCES. 309

with the exception of Louisiana and Indiana, held that such ac-
ceptances were not conditional ; that demand of payment at the
place specified need not be averred by the plaintiff; but that if
the acceptor was at the place at the time designated, and ready
to pay the money, it was a matter of defence to be pleaded on his
part, which defence, however, is no bar to the action, but goes
only in reduction of damages, and in prevention of costs. (a) If

was within the statute, had it not been for tlie authoritv of Selby v. Eden. In Turner
V. Hayden, 4 B. & C 1, 6 Dow. & R 5, Ryan & M. 215, the holder of a hill accepted
payable at a banker's, the words "only, and not elsewhere," being omitted, did tiot
present it tliere for payment, and the banker three weeks after failed, havinjj: lield
during that time a balance in favor of the acceptor above the amount of the bill.
It was held that the acceptor still continued liable, although he was subjected to the
loss of the money by the omission of the holder to present the bill there for payment.
So Sebag v Abitbol, 4 Maule & S. 462, decided before the statute. In Sharp c. Bai-
ley, 9 B. & C. 44, 4 Man. & R. 4, the drawer made the bill payable at his own bouse,
and it was held that the jury might infer from this fact that the bill was an accommo-
dation bill, and notice of non-payment by the acceptor to the drawer was unnecessary.
The statute applies to bills made payable at a particular place by the act of the drawer,
as well as where rendered so payable by the act of the acceptor. Selby v. Eden, 3
Bing. 611 ; Fayle v. Bird, 6 B. & C. .531. See Halstead v. Skelton, 5 Q. B. 86 ; Blake
». Beaumont, 4 Man. & G. 7.

(a) This point has been decided more frequently with regard to the makers of
promissory notes than acceptors of bills of exchange, yet the courts make no difference
between them in this respect. In U. S. Bank v. Smith, 11 Wheat. 171, Thompson, J.
expressed an opinion that demand at the place need not be averred, but there was no
decision on this question. It was decided, however, in Wallace v. M'Connell, 13 Pet.
136, where the cases are collected and commented upon at length. Judge Story,
Promissory Notes, § 228, note, says that he dissented, but his dissent does not ap-
pear in the ivport. Other cases approving this doctrine are Covington v. Comstock,
11 Pet. 43; Brabston v. Gibson, 9 How. 263; Thompson v. Cook, 2 McLean, 122;
Silver v. Henderson, 3 id. 165 ; Brown v. Noyes, 2 Woodb. & M. 75 ; Martin v. Ham-
ilton, 5 Harring. Del. 314, 329; Stowe v. Colburn, 30 Maine, 32 ; Nichols v. Pool, 2
Jones, N. Car. 23 ; Foden v. Sharp, 4 Johns. 183; Wolcott v. Van Santvoord, 17 id.
248; Fitlcr v. Bekley, 2 Watts & S. 458; Fairchild v. Ogdensl)urgh, &c. R. Co, 15
N. Y. 337, Denio, C. J., where it was decided that the defence of readiness to pay at
the time and place mentioned goes in mitigation of damages and costs, and not to the
cause of action ; Fleming v. Potter, 7 Watts, 380, where the same rule was applied in
case of a note payable in specific articles. See Caldwell v. Cassid}^ 8 Cowen, 271, an
action against the maker of a promissory note, in which a plea was held bad, on de-
murrer, because it set forth this defence in bar of the action, and not of the damages ;
and secondly, for not showing that the defendant was ready, by paying the money
into court. Samge, C. J said, that he thought an account of demand would be neces-
sary in case of a note payable on demand at a particular place, but in Haxtun v.
Bishop, 3 Wend. 1, he decided that it was not. Green v. Goings, 7 Barb 652. See
Ruggles V. Patten, 8 Mass. 480; Carley v. Vance, 17 id. 389, where the plea was held
jad for want of profert ; Payson v. Whitcomb, 15 Pick. 212 ; Carter v. Smith, 9 Cash.
o'21 ; Eastman v. Fifield, 3 N. H. 333 ; Otis v. Barton, 10 id. 433 ; Hart v. Green, 8

310 NOTES AND BILLS. [CH. IS.

a bill were accepted " payable only at such a place," it would be
so entirely conditional under the English statutes, that, if not de-
manded there, the acceptor would not be liable at all. We think
this should be the rule in the United States ; on the ground that
such words are equivalent to " Accepted, provided that," or " on
condition that " ; but it is not certain that a bill accepted with
the word " only," or possibly with express words of condition,
might not be held by some courts as binding the acceptor to the
amount of the bill, but discharging him from interest and costs,
if he had funds at the proper place at the maturity of the bill,
by which it would then and there have been paid. The principle
upon which any such decision must be founded is, that the hav-
ing the funds there for that purpose operates as a tender of them.

Vt. 191 ; Eidred v. Hawes, 4 Conn. 465 ; Jackson v. Packer, 13 id. 342; Bond r
Storrs, id. 412 ; Bacon v. Dyer, 3 Fairf. 19 ; Remick v. O'Kyle, id. 340, where prcv
sentment was averred and the plaintiff' was allowed to recover without introducing
evidence to support it; McKenney v. Whipple, 21 Maine, 98; Gammon v. Everett,
25 id. 66; Lyon v. Williamson, 27 id 149 ; Dockray v. Dunn, 37 id. 442 ; Weed v.
Van Houten, 4 Halst. 189 ; Bowie v. Duvall, 1 Gill & J. 175 ; Allen i'. Miles, 4 Har-
ring. Del. 234 ; M'Nairy v. Bell, 1 Yerg. 502 ; Mulherrin v. Hannum, 2 id. 81 ;
Blair v. Bank of Tenn., 11 Humph. 84 ; Bank of Ky. v. Hickey, 4 Littoll, 225 ; Conn
V. Gano, 1 Ohio, 483, where it Avas also held that the averment, though immaterial,
yet, if made, must he proved, Pease, J. dissenting ; Butterfield v. Kinzic, 1 Scamm. 445 ;
Armstrong v. Caldwell, id. 546; New Hope 1). B. Co. v. Perry, 11 111. 467; Irvine
1-. Witlicrs, 1 Stew. Ala. 234 ; Montgomery v. Elliott, 6 Ala. 701 ; Wutkins v. Crouch,
5 Leigh, 522; Armistead v. Armistcads, 10 id. 512; Sumner v. Ford, 3 Pike, 389;
McKiel );. Real Estate Bank, 4 id. 592 ; Pryor v. Wright, 14 Ark. 189 ; Dougherty v.
Western Bank, 13 Geo. 287 ; Clarke v. Gordon, 3 Rich. L. 311 ; McKenzie v. Durant,
9 id. 61 ; Bank of S. Carolina v. Flagg, 1 Hill, S. Car. 177 ; Bank of N. Carolina v.
Bank of Cape Fear, 13 Ired. L. 75 ; Ilenshaw v. Liberty M. F. & L. Ins. Co., 9 Misso. 333,
where the note was payable in paper currency ; Edwards v. Ilasbrook, 2 Texas, 578 ;
Andrews v. Iloxie, 5 id. 171 ; Games v. Manning, 2 Greene, Iowa, 251, where it was
held that the same rules were applicable in case of a note payable in s|)ccitic articles;
Washington v. Planters' Bank, 1 How. Miss. 230; Cook v. Martin, 5 Smcdes & M.
379, where proof of an averment of demand at the place was held unnecessary.
Some of the American cases hold an averment and proof of demand necessary in the
case of notes payable on demand, no time being specified. Thomjison, J., Wallace i'.
M'Connell, 13 Pet. 143; Bank of N. Carolina v. Bank of Cape Fear, 13 Ired. L. 75;
Armistead v. Armistcads, 10 Leigh, 512, Slannrd, J., who said that this principle
would extend to the case of notes payable on demand, after a specified time. Suvage,
C. J., (y'aldwell v. Cassidy, 8 Cowen, 271. The cases denying tliis are McKenney v.
Whipple, 21 Maine. 98 ; Gammon i;. ICverctt, 25 id. 66; Ha.xtun v. Bishop, 3 Wend.
1 ; Montgomery r. Elliott, 6 Ala. 701 ; Dougherty v. Western Bank, 13 Geo. 287 ; hut
the court held in this ea.sc that averment and demand at the place are necessary in
the case of a bank-note payable on demand at a specified place. Qnare. The reason
given is public policy. The same was held in the case of a baiik-nole in Bank of N.

CH. IX.] CONDITIONAL AND QUALIFIED ACCEPTANCES. 311

The cases which we have been considering are, as our notes
show, in a curious state of conflict, confusion, and uncertainty.
A great number of fine, subtile distinctions iiave been made on
a comparatively narrow point, and it seems as if ingenuity and
acutencss had been exerted to make refinements in an important
commercial question, instead of an endeavor to carry out the real
and honest intentions of the contracting parties, and to produce
uniformity in the law precisely there where uniformity is emi-
nently desirable.

A partial or a qualified acceptance is an agreement by tlie ac-
ceptor to pay the bill, but at a different place or time, or in a
different manner, from the terms thereof. Thus, where a bill was
drawn with a date expressed when it was payable, and the drawee

Carolina v. Bank of Cape Fear, 13 Ired. L. 75 ; but there it was held that there was no
differente between notes by a natural person and those of a corporation, in this re
spect. In New Hope D. B. Co v. Perry, 11 111. 467, in an action on a bank-bill
payable at a particular place on demand, it was held that it was not necessary to aver
and prove a demand at that place. In Louisiana, demand at the time and place was
formerly considered necessary. Mellon v. Croghan, 15 Mart. La. 423 ; Smith v. Rob-
inson, 2 La. 405 ; Erwin v. Adams, id. 318; Morton v. Pollard, 10 id. 552 ; Warren
V. Allnutt, 12 id. 454; Fort v. Cortes, 14 id. 180; Hamer v. Johnson, 15 id. 242;
Hart V. Long, 1 Rob. La. 83 ; Stillwell v. Bobb, id. 311 ; Wood v. Mullen, 3 id. 395 ;
Funes v. U. S- Bank, 10 id. 533. But these cases have been overruled. Ripka v.
Pope, 5 La. Ann. 61 ; McCallop v. Fluker, 12 La. Ann. 551. In Picquet v. Curtis, 1
Sumner, 478, Stori/, J. said : " The decision of the House of Lords in the great case
of Rowe V. Young settled the law, as to inland bills, upon principles which strike my
mind as irresistible." The cases in Indiana are Palmer i-. Hughes, 1 Blackf. 328 ;
Gilly V. Springer, id. 257. See Aldcn v. Barbour, 3 Ind. 414. In Bassett v. Wills, 4
Leigh, 114, the note was made negotiable at a certain bank. Held, that although
negotiable there, it was not therefore payable there, and that an averment of presenta-
tion at the bank need not be proved.

In an action against the drawer or indorser, it is necessary to aver and prove de-
mand at the place. The reason is, that their undertaking is conditional, while that of
the maker and acceptor is primary. U. S. Bank v. Smith, 11 Wheat. 171 ; Berkshire
Bank v. Jones, 6 Mass. 524 ; Woodbridge v. Brigham, 12 id 403, corrected 13 id. 556 ;
Hart y. Green, 8 Vt 191, 194, per Phelps, J.; Allen v. Smith, 4 Ilarring. Del. 234,
per Booth, CJ.; Shaw v. Reed, 12 Pick. 132; North Bank v. Abbot, 13 id. 465;
Bank of Wilmington, &c. v. Cooper, 1 Harring. Del. 10; Tuckerman v. Hartwell, 3
Greenl. 147. In this last case, Mel/en, C. J. denies that there is any difference whether
the action is brought against a drawer or indorser, or against an acceptor or maker.
See Irvine v. Withers, 1 Stew. Ala. 234 ; Roberts v. Mason, 1 Ala. 373 ; Gla.«gow i-.
Pratte, 8 Misso. 336 ; Sullivan v. Mitchell, 1 N. Car. L. Rep. 482. See Smith v.
M'Lcan^ 2 Taylor, N. Car. 72 ; Nichols v. Pool, 2 Jones, N. Car. 23 ; Watkins v.
Crouch, 5 Leigh, 522, which was a suit against the maker and indorser jointly, and it
was held that it was not maintainable without averment and proof of demand at the
place specified. Nor does the acceptance, by the indorser, of an assignment of all the
ffFects of the maker as security for part of the note, dispense with such demand. Ibid.

r.J 2 NOTES AXD BILLS. [CH. IX.

promised ito pay it on a subsequent day, the acceptance was held
to be good within the custom of merchants. (^) A bill drawn
payable November 28, 1836, forty-two months after date, being
accepted on condition of its being renewed till November 28,
1844, was held to be a good acceptance, and the bill to be prop-
erly declared on as accepted payable November 28, 1844. (f) So
a draft payable at sight may be accepted payable at a subsequent
day.(t/) An acceptance for part of the bill is a good acceptance
for that part. Where the drawee of a bill for X 127 accepted to
pay £. 100, part thereof, it was held a binding acceptance. (<;) And
an acceptance to pay half in money and half in bills, is a good
acceptance as to the part payable in money. (/) We have alreadj-
seen that an acceptance by a partner, in his own name, of a bill
drawn on a firm, binds the firm.(g') The same lias been held
with reference to joint traders, if it concerns the trade ; but it is
otherwise if it concerns the acceptor in a distinct interest and
respect. (/i) If a bill drawn on a partnersliip is not accepted un-
til after a dissolution piiblicly announced, it binds only the part-
ner accepting it, if the other partners have not consented to his
act.(i) It may be stated as the result of the cases, that an
acceptance by one of a bill addressed to several, renders the
acceptor personally liable. (7)

(6) Walker f. Atwood, 11 Mod. 190.

[d) Cliirkcr. Goidon,3 Rich..311. And it is said that, if the drawee of a hill payable
at si<;ht promises to pay it if it is presented at a particular time, the plainiiti' need not
aver or prove presentment at that time. Ihid. In Price v. Shute, Chitty on Bills, 303,
a bill payable Jan. 1st was accepted payable March let. The holder struck out this
last date and inserted Jan. 1st. The acceptor refused to pay on presentment at that
time The holder then restored the date to March 1st, and recovered a;j;aini^t the
accejttor. 'I'his case has been doubted by Lawrence, J., Paton v. Winter, 1 Taunt.
420, and in Master v. Miller, 4 T. R. 320.

(*") Wcf^MM-slofTe V Keene, 1 Stra. 214; see Douglass r. Wilkeson, C Wend. 637,
642.

(/) Petit I'. Benson, Comb. 452.

(7) Supra, p. 123, note ^.

(h) Pinkney v. ILdl, 1 Salk. 126; Dupays ». Shepherd, Holt, 296.

(/) Toinbcckbee Bank v. Dnniell, .') Mason, .56.

tj) Made, J., Owen v. Van Uster, 10 C. B. 318, 1 Eng. L. & Eq. 396.

CH. LX.] ACCEPTANCE FOR HONOR. 313

SECTION IV.

ACCEPTANCE FOR HONOR.

There can be no acceptance except by a drawee, or by a
drawee au besoin, or by some one for honor. (A:) If there purport
to be a further or other acceptance, the person making it may be
held as a guarantor or otherwise on his contract, (if there is a
consideration,) but not as acceptor. (/)

If the original drawee refuses to accept the bill, and there is
no drawee au besoin, or he refuses also, and the bill has been
duly protested, then any person may come forward and accept
the bill " for honor," and this may be done at the request, and
under the guaranty, of the drawee. (wi) Such acceptance may
also be made if the original drawee, after acceptance, absconds
or becomes insolvent. («) This last acceptance, "for better se-
curity," as it is called, is practised in England much more fre-
quently than in this country.

The acceptor for honor may accept for any one or more, or all
the parties antecedent. Properly the acceptance sliould desig-
nate for whose honor it is made, and then it enures to the benefit
of that party and of all parties subsequent to him.(o) If it is gen-
eral, it will be taken to be for the honor of the drawer, and enures
to the benefit of all parties subsequent. The holder may elect to
receive or reject this acceptance at liis pleasure. (;-») If he receives
it, then tlie acceptor is bound to all persons to whom the party
for whom he accepts would liave been bound. In some instances
the acceptor for honor writes over his acceptance " provided due
demand be made, and the drawer " (or any other party for whom
he accepts) " is duly notified." The object of this is to prevent
the acceptor for honor from being liable, iniless the party for

{k} May ». Kelly, 27 Ala. 497 ; Jackson v. Hudson, 2 Camp. 447 ; Polhill »
Walter, 3 B. & Ad. 1 14 ; Davis v. Clarke, 6 Q B. 16. Sec Jenkins v. Hutchinson, 13
Q. B. 752. The drawee may recognize an acceptance as his. See Lindus v. Brad-
well, 5 C. B. 583.

{/) Jackson v. Hudson. 2 Camp. 447.

(m) Konig v. Bayard, I Pet. 250.

(n) Ex parte AVackei-bath, 5 Ves. 574.

,o) Hussey v. Jacob, 1 Ld. Kaym. 88; Lewin r. Brunetti, 1 Lutw. 896, Carth. 199.

(/>) Mitford V. Walcot, 12 Mod. 410; Gregory i;. Walcup, 1 Coniyns, 75.

VOL. I. 27

814 NOTES AXD BILLS. [CH. IX

whose honor the acceptance is made is himself liable. We think,
however, that the law merchant would itself make this provision,
unless there was an express or implied waiver by the acceptor
for honor. (7)

The holder cannot look to the prior parties of a foreign bill,
unless he protested the bill for the non-acceptance of the drawee,
and gave them due notice. (r) And this should regularly be
done, even where there has been a proper acceptance, and, the
drawee having failed or absconded, a subsequent acceptance for
honor is made.

For the reason that an acceptance for honor cannot properly
be made until the bill has been protested for non-acceptance ; or,
if the acceptor have failed or absconded, for better security ; such
acceptance is usually designated in England and in this country
as an acceptance supra protest; this being required by the law
merchant as the only appropriate proof of that failure or refusaJ
to accept of the proper person, which alone gives to a third party
the right to come in and accept "for honor."(s) A holder, aa
we have said, may entirely refuse an acceptance for honor ; in
which case he has, of course, no claim whatever against one who
proposes to be an acceptor for honor, or becomes so without the
assent of the holder. If lie receives this acceptance, he can
demand payment of the bill from the acceptor for honor only at
its maturity. (<) So, also, all of those for whose honor the bill is
accepted are protected by it, if such acceptance is received, in
the same manner in which they would have been by a regular
acceptance by the drawee. If the acceptance be without limita-
tion, we liave seen that it is construed as an acceptance for the
honor of the drawer, but it may be for the honor " of the bill,"
or " of all the parties," and then it must be so expressed ; (m)
but if it be a special acceptance for the honor of one or more of
the prior parties who are particularly designated, it is not for

(7) Baring v. Clark, 19 Pick. 220.

(r) Phfcnix Rank v. Ilussey, 12 Pick. 483.

(s) Plifcnix Bank v. Hussey, 12 Pick. 483.

(0 Williams V. Gcrmainc, 7 B. & C. 4G8, 1 Man. &. R. 394, 403. Lord Teuterden
gaid : An acceptance for honor "is equivalent to gaying to the holder of the Vill,
'Keep tliis hill, don't return it, and when the time arrives at which it ought to be paid,
if it is not paid by the party on whom it was originally drawn, come to me and you
shall liavc the money.' "

(u) See Gazzam v. Armstrong, 3 Dana, 5.')4.

CH. IX.] ACCEPTANCE FOR HONOR. 315

the honor of those prior to the party for whom it is accepted, and
they are excluded from its benefit and protection. (y) And It
seems that the holder, if he has duly notified these unprotected
parties of the non-acceptance, may immediately resort to them
for payment, in the same manner as if there were no acceptance
at Si\\.{iv)

The drawee may himself refuse to accept the bill generally,
and may then accept it supra protest for some one or more
of the parties ; as, for instance, he may refuse to accept it
for the drawer, and may then accept it for the honor of an in-
dorser.(.?:) But if it was his duty to accept it generally, by
reason of the state of his accounts with the parties, he gains
nothing by refusal and subsequent acceptance supra protest ; nor
would he in any case, if this subsequent acceptance supra protest
were general, or for all parties to the bill.(7/) There may be suc-
cessive acceptors for honor, for the reason that there may bo
many persons for whom acceptance supra protest may be made.
There can be but one such acceptance for one person, if that bo
received by the holder ; but there may be a separate acceptanco
by as many persons, for the honor of each party to the bill, aa
there are such parties. (2^) It has been held that an acceptor
supra protest for the honor of the first indorser, may require of
the holder as a condition of payment that the bill shall be in-
dorsed to him. (a)

The acceptor supra protest is bound to all persons to whom the
acceptor would have been bound, as has been said, but he is not
bound to them in the same way, or on the same conditions. A
drawee becomes by acceptance an absolute promisor, like the
maker of a note ; and the drawer is as his indorser. But an
acceptor for honor is liable rather as an indorser ; for he is

(») Beawes, p. 459.

(w) Beawes, p. 459.

(.r) Beawes, pi. 33.

(y) Schimmelpeunich v. Bayard, 1 Pet. 264. Marshall, C. J. said : " If the drawees,
refusing to honor the bill, and thus denying the authority of tlie drawer to draw upon
them, were bound, in good faith, to accept or pay as drawees, they will not be per-
mitted to change the relation in which they stand to the parties on the bills by a wrong-
ful act. They can acquire no rights, as the holders of bills paid supra protest, if they
were bound to honor them in their character of drawees."

(2) Beawes, pi 42.

(a) Freeman v. Perot, 2 Wash. C. C. 485,

316 NOTES AND DILLS. [CH. IX.

bound to pay only on condition that the bill shall be again pre-
sented for payment at maturity to the drawee (who may in the
mean time be furnished with funds), and, if not then paid, be
regularly protested for non-payment, and notice given to him. (6)
Where a bill drawn on a merchant in Liverpool, payable in
London, was presented to the drawee, who refused to accept ;
and was subsequently accepted in London for the honor of the
payee, " if regularly protested and refused when due," it was
held that a presentment for payment to the drawee in Liverpool^
a refusal by him, and a protest there, were necessary in order to
charge the acceptor for honor. (c) Evidence was introduced in
this case to show that the usage under such circumstances was
to have the protest for non-payment made in London ; but the

(6) Hoare v. Cazenove, 16 East, 391. Lord Ellenborout/h said : " The question, there-
fore, is, wliether a presentment to the drawees for payment, and a protest for non-pay-
ment by them, is or is not essential as a previous requisite to the maintaining- of an
action against these defendants, the acceptors for tlie lionor of tiie first indorsers ; and
this depends upon the nature and obligation of an acceptance for tiie honor of the
drawer or indorser. If an acceptance in these terms be an engagement by the person
giving it that he will pay the bill when it becomes due, and entitles the holder to look
to him in the first instance, without a previous resort to any person, the plaintiffs are in
that case entitled to recover upon their second count ; but if such an acceptance be in its
nature qualified, and amount to a collateral engagement only, i e. an undertaking to pay
if the original drawee, upon a presentment to him for payment, should persist in dis-
honoring this bill, and such dishonor by him should be notified, by protest, to the person
who has accepted for tlie honor of the indorser, — then the necessary steps have not
been taken upon this bill, and the plaintiffs cannot recover. And sucli, after much con-
sideration, we are of opinion, is the case The use and convenience, and indeed the

necessity, of a protest upon foreign bills of exchange, in order to prove, in many
cases, the regularity of the pi-oceedings thereupon, is too obvious to wai'rant us in dis-
pensing with such an instrument in any case where the custom of merchants, as re-
ported in the authorities of law. appears to have required it. And indeed the reason
of the thing, as well as the strict law of the case, seems to render a second resort to the
drawee proper when the unaccepted bill still remains with the holder ; for effects often
reach tlie drawee who has refused acceptance in the first instaiK'C, out of which the bill
may, and would be, satisfied, if ])resented to him again when the period of payment
had arrived. And the drawer is entitled to the chance of benefit to arise from such
second demand, or at any rate, to the benefit of that evidence which the protest nfibrds,
that the demand has been made duly, without effect, as far as sucli evidence maj' bo
available to him for purposes of ulterior resort." In Williams v. Germainc, 7 li. & C.
408, the doctrine of Hoarc »;. Cazenove was affirnied, and judgment arrested because
the declaration did not aver presentment to the drawee for payment. Mitchell i; Bar-
in).5, 10 B. & C 4 ; Roach v. Ostler, 1 Man. & 11. 120; Leno.v v Leverelt, 10 Muss.
1 ; Sehofield v Bayard, 3 Wend. 488.

(r) Miieriell r. Baring, 10 B & C. 4, 4 Car. & V. 35, Moody & M. 381. Sec Scho-
fifld V. Bayard, 3 Wend. 488.

CH. IX.] ACCEriANCE FOR HONOR. 317

court held that the peculiar form of the acceptance rendered an
inquiry into this custom irrelevant and unnecessary. In conse-
quence of this doubt thrown on the validity of the usage, the
statute 2 & 3 Wm. IV. c. 98 was passed, which, after reciting
that doubts had arisen on this point, and the expediency of
removing them, enacted that bills so accepted may be protested
for non-payment in the places in which the drawers made them
payable, without further presentment to the drawees, unless the
amount owing upon such bills of exchange shall have been paid
to the holders on the day on whicli the bills would have become
payable had they been duly accepted.

If an acceptor for lionor pay the bill, or if any one pays for
honor supra protest, although he did not accept, he may resort
for full indemnity for his payment and all legal costs to the
person or persons for whose honor he made the acceptance or
the payment, and to all parties who would have been liable to
those persons had they paid the bill themselves. ((/) And he may
declare generally upon this custom, (e) or perhaps generally upon
a count for money paid to the defendant's use.(/) In an action
upon a bill with several indorsements, by one who has paid the
bill for the honor of one of the indorsers, it is sufficient, even
upon special demurrer, to state that he paid the bill according to
the custom of merchants, without stating that he paid it to the
last indorsee. (g-) Nor can such payment for a party discharged
by laches revive his lost liability. (A) If it had been accepted by

{d) Leake v. Burgess, 13 La. Ann. 156 ; Gazzam v Armstrong, 3 Dana, .554, where
Marshall, J. said : " We are decidedly of opinion, that he (the acceptor for honor) ac-
quired no demand, or rigiit of action, against any party subsequent to the one for whom
he made the payment, and that, even as against the preceding parties, he was only
substituted to the rights of that party, in the same condition as if he had paid the bill
himself." In Mertens v. Winnington, 1 Esp. 113, " Lord Kenyan was of opinion that
when a bill is so taken up (for honor), that tlie party who does so is to be considered as
au indorsee paying full value for the bill, and as such entitled to all the remedies to which
an indorsee would be entitled, that is, to sue all the parties to the bill." This seems
rather too broad a proposition. " He has the right and remedies of the indorser for
whom he pays the bill, if he chooses to put himself in that position." Erie, J., Goodall
V. Polhill, 1 C. B. 233, 239. It is necessary for the acceptor for iionor, on payment
of the bill, to give notice of the payment to the party for whom he accepted ; otherwise
he loses all claim upon him. Wood v. Pugh, 7 Ohio, 156.

(e) Fairley v. Roch, 1 Lutw. 891.

(/) See Smith v Nlssen, 1 T. R. 269 ; Vandewall v. Tyrrell, Moody & M. 87.

Ig) Cox V. Earle, 3 B. & Aid. 430.

(A) See Higgius v. Morrison, 4 Dana, 100.
97 «

818 NOTES AND BILLS. [CH. IX.

the drawee, and the acceptance for honor had been for better se-
curity, the acceptance gives a claim against the acceptor also.(t)

If both drawer and acceptor had become bankrupt, and the
acceptance were for the drawer's accommodation, it has been
held that the acceptor for honor must first resort to the estate of
the drawer. (y) It was, however, held in a subsequent case, that
the payer for the honor of the drawer, under similar circum-
stancesj has no claim on the assignees of the acceptor, because
the drawer himself had none. (A;)

An acceptor for honor of the drawer thereby releases the
accommodation acceptor of the bill, because an acceptor for
honor can acquire only the rights of the party whom he thus
protects, and a drawer has no claim upon an accommodation
acceptor. (/) If a drawee who is not bound to accept a bill
refuses acceptance, and requests a third person to accept it for
honor of an indorser, and guarantees that third person for so
doing ; if such acceptor for honor pay the bill, he may still
resort to the indorser. But the indorser may put in any defence
he would have had against the drawee. (?m) If an acceptor for
honor of an indorser specially promises to pay any person au-
thorized to receive the money and give a valid discharge, it
seems that he is not bound to pay unless the holder will put his
name on the bill, or give him a bond of indemnity. (w)

If the bill be payable at so many days after sight, and accepted
for honor, the time which the bill has to run is computed, not
from presentment to the drawee, but from the acceptance svpra
protest. (o)

An acceptor supra protest should go before the notary public
with witnesses, and declare that he accepts the bill for honor, and
designate for whose honor he so accepts. This is at least the
usual way, and no very wide departure from it would probably
be allowed. (/>) But although, when he writes his acceptance on

(i) Ex parte Wnckerhatl), .5 Vcs. 574.
(j) Ex parte Watkcrbath, 5 Vcs. 574.
(k) Ex parte Latnhcrt, 13 Ves. 179.

(/) McDowoil r. Cook, 6 Sinetlcs & M. 420; Gazzam v. Armstrong, 3 Dana, 554
Ex parte Lambert, 13 Ves. 179.
(m) Konijr v. Bayard, 1 Pet. 250.
(n) Freeman v. Perot, 2 Wash. C. C. 485.

(o) Williams v. Gcrmaine, 7 B. & C. 4G8, 1 Man. & R. 394, 403.
{p) Gazzam v. Armstrong, 3 Dana, 554.

CH. IX.] ACCEPTANCE FOR HONOR. 319

the face (as lie should), and signs it, it is proper to say, "Ac
cepted supra protest," or " for honor," it seems to be sufficient,
and may now bo even more usual, to say only, " Accepted S, P."

After protest for non-acceptance, whether there bo acceptance
supra protest or not, there should be a regular demand and pro-
test for non-payment, and due notice given, not only to enable
the holder to sue all parties, but to enable the acceptor for honor
to sue the party for whom he accepts. (</)

The whole law on the subject of the acceptance of bills supra
protest is quite peculiar, and is a decided exception to the rule
that no man can make himself the creditor of another without
his authority or consent. For here, any stranger, as we have
seen, may become bound for another, and, by satisfying the obli-
gation, acquire a positive claim against him for indemnity, with-
out either authority or consent from him. But the rule is derived
from the law merchant, and rests altogether upon the purpose
and functions of bills of exchange. It is not yet extended,
either in law or by usage, to the case of promissory notes ; where-
fore, one who pays a note which is overdue, without authority or
request from him who owes it, acquires thereby no right against
him.

It is said by Chitty, that a presentment should be made to the
acceptor for honor after the prior requisites have been performed,
and if this is not done, he may be discharged from liability. (r)
But we know no authority for this. Before paying, the acceptor
should ascertain whether the signature of the party for whose
honor he is about to pay is genuine or not. If it is forged, he
can have no recourse to the party himself, and unless the forgery
be promptly discovered, and immediate notice given to the holder
to whom payment had been made, all claim on the latter would
be extinguished. (5) And it has been held that the mistake must
be discovered, and notice given, on the very day of payment, in or-
der to hold the prior parties ; (t) the reason being, that the holder
is entitled to know on the day the bill falls due whether it is hon-
ored or dishonored. If the acceptor for honor pays the bill, he
Bhould declare before a notary that he pays supra protest, speci-

{q) Schofield v. Bayard, 3 Wend. 491.

(r) Chitty on Bills, 351.

\s) Wilkinson v. Johnson, 3 B. & C. 428, 5 Dow. & R. 403.

(t) AVilUnson v. Johnson, 3 B. & C. 428; Cocks v. Mastcrman, 9 B. & C. 902.

320 NOTES AND BILLS. [CH. IX.

fying tlie party for whom he pays ; and this declaration should
be recorded by the notary, either in the protest itself or in a sep-
arate instrument. (z<) Notice sliould also be given of this pay-
ment to the party for whose honor payment is made, otlierwise
the payer for honor will lose his right to call upon him to re-
fund. (tj) If the acceptor for honor should himself refuse to pay,
there should be still another protest, and notice given to the
drawer and indorsers.(M?) It seems that the formal instrument
of protest may be drawn up at any time, even after the com-
mencement of an action by the party paying against the party for
whose honor the payment was made, (a;)

SECTION Y.

WHAT ACCEPTANCE ADMITS.

Every acceptance admits tlie signature of the drawer, and the
acceptor is liable to an innocent holder for value, although the
signature be forged. (y) If the acceptor, in an action against him

4 Man. & R. 676. Tliis last case is cited by Coicen, J., Canal Bank v. Bank of Al-
bany, 1 Hill, 287, 292, and disapproved, as requiring " an almost impracticable dili-
gence. I doubt whether this case can be sustaiued, except upon its own peculiar
circumstances, if it can be sustained at all."

(u) Bcawes, pi. ^3. In Gcralopulo v. Wieler, 10 C. B. 690, 709, M,nih; J. said : " It
is a part of the mercantile law respecting payments for honor, that tlicy must he pre-
ceded or accompanied by a declaration, made in the presence of a notary, for whose
iionor he pays the bill, which should be recorded by a notary, eitiicr on the ])rotest or
in a separate instrument. It would indeed be contrary to a general jjrincijile of law and
justice, if a person who made a payment, or did an act simply without limit or qualifi-
cation, could afterwards, by a subsecjucnt declaration limiting or qualifying its effect,
affect the riglit of others. No person, therefore, paying money sim])]y to the holder of
a bill, could, by the general rules of law, by a subsequent declaration, cause a pay-
ment so made to assume the character of a payment for honor. The custom of mer-
chants requires the declaration which is to qualify the payment to be made in the pres-
ence of a notary." Sec also Gazzam v. Armstrong, 3 Dana, 5.54.

(r) Wood V. Pugh, 7 Ohio, 1.56.

{w) Chitty on Bills, p. ."352.

(x) So held in Gcralopulo v. Wieler, 10 C. B. 690. This case explains A^andewall
r. Tyrrell, Moody & M. 87, where a somewhat different rule was apjiarcntly laid down.

(y) In Wilkinson v. Lutwidgc, 1 Stra 648, an action on the case against an acceptor,
it was objected that the acceptance could not be proved till after proof of the signa-
tarc of the drawer. " But as to this, the Chief Justice (Lord I\aijwotif{) was of opinion
that proof of an acceptance was a sufficient acknowledgment on the part of the ac-
ceptor, who mu.st be supposed to know the hand of his own correspondent, but he said

CII. IX.] WHAT ACCEPTANCE ADMITS. 321

by an iudovscr, denies by his plea the handwriting of the drawer,
the pkiintiff may reply the acceptance by way of estoppel. (2^)
Tlie acceptance also admits the capacity at that time of the per-
son, to whom the bill is payable, to indorse, and the acceptor
cannot afterwards say that this person was a bankrupt, (a) or an
infant, (6) or a married woman ; (c) although in the latter case,
if she indorsed it over, and afterwards her husband exercised his
right and indorsed it also, the acceptor might be obliged to pay
it twice. ((/) Nor can the acceptor say that the bill was drawn
upon a corporation which had no power to indorse. (e)

But if the bill be actually indorsed at the time of acceptance,
this does not admit the genuineness of the indorsement, (/) un-
less the name be that of a living person which is forged, and the
drawee knew this, and intended to give currency to the bill so
indorsed. (o™) We should extend this principle so far as to say

it would not he conclusive evidence." In Jenys v. Fawler, 2 id. 946, Lord Raymond
"strongly inclined that even actual proof of forgery would not excuse the defendants
against their own acceptance, which had given the bill a credit to the indorsee." In
Price V. Neal, 3 Burr. 1354, the acce])tor, having paid a bill with the signature of the
drawer forged, was not allowed to recover back the amount from the indorsee to whom
he paid it, on the ground that his acceptance was an admission of the signature. " When
a bill is presented for acceptance, the acceptor only looks to the handwriting of the
drawer, which he is afterwards precluded from disputing, and it is on that account that
an acceptor is liable, even though the bill be forged." Per Bailer, J., Smith v. Ches-
ter, 1 T. R. 6.54 ; Master v. Miller, 4 T. R. 320; Dampier, J, Bass v. Clive, 4 Mauls
& S. 15 ; Porthouse v. Parker, 1 Camp. 82 ; Levy v. Bank of U. S., 1 Binn. 27, 4 Dal-
las, 234 ; Peoria, &c. R. Co. v. Neill, 16 111. 269 ; Whitney v. Bunnell, 8 La. Ann. 429.
See Ellis v. Ohio Life, &c. Co , 4 Ohio State, 628 ; Canal Bank v. Bank of Albany,
1 Hill, 287 ; Talbot v. Bank of Rochester, id. 295.

(2) Sanderson v. Coleman, 4 Man. & G. 209. So an indorsement by the payee ad-
mits the signature of the maker. Free v. Hawkins, Holt, 550.

(a) Braithwaite v. Gardiner, 8 Q. B. 473. See Pitt v. Chappelow, 8 M. & AV. 616;
Drayton v. Dale, 2 B. & C. 293, 3 Dow. & R. 534.

(ft) Taylor v. Croker, 4 Esp. 187 ; Jones ;-. Darch, 4 Price, 300. See supra, p. 70.

(d) Smith V. Marsack, 6 C. B. 486.

(e) Hallifax v. Lyle, 3 Exch. 446.

(/) Smith V. Chester, 1 T. R. 654 ; Carvick v. Vickery, 2 Doug. 653, note ; Robarta
r. Tucker, 16 Q. B. 560.

[g] Beeman v. Duck, 11 M. & W. 251. In this case Parke, B. remarked, with refer-
ence to the case where the drawer and first indorscr is the same party, that "it is in-
sisted that in such a case the acceptor, though he admits that the bill was drawn by the
parties by whom it purports to be drawn, does not admit the indorsement by the
same parties , a doctrine which is clearly established as to bills wherein the signature
is not forged." Robinson v. Yarrow, 7 Taunt. 455, is cited as the authority for tliis,
and an opinion is intimated that the rule is the same where the drawer's name was forged.

Vol. I.— V

322 NOTES AND BILLS. [CH. K.

that, whatever objection might exist against a bill, if the drawee
accepted the bill with a knowledge of it, the presumption wonld
be that he intended to give currency to that bill, although then
objectionable, and that he could not afterwards avail himself of
such objection. But acceptance, together with payment by the
acceptor, do not admit the genuineness of an indorsement by the
payee ; and the acceptor may, on discovering that the payee's
signature was forged, recover the amount from tlie party to whom
the payment was made.(/t) If, however, it appears that the
payee was never the owner of the bill, nor had any interest in it,
and the drawer put it in circulation with the forged signature
upon it, the acceptor cannot now recover back the money he has
paid from the party to whom he paid it, but may charge it to the
drawer, who will be estopped from denying the genuineness of
the indorsement, (i) If a bill be drawn by one as the agent of
another, acceptance admits his authority to draw the bill, but not
his authority to indorse it.(j) If it be drawn in a fictitious
name, the acceptor not only admits this to be good, but is said to
be bound by any indorsement of the same name by the same
hand. (A:)

If the drawee of a bill which purports to have been ac-
cepted, once admits that the acceptance is his, and so gives
currency to the bill, this is in the nature of a conclusive adop-

Robinson v. Yarrow decides that acceptance admits the authority of an agent to draw,
but not his authority to indorse, though botli signatures arc in the same handwriting.
Park, J. said, that " mere acceptance proves tlie drawing, but it never proves tlie in-
dorsement." Smith V. Chester, 1 T. R. 6.54, decides that, in an action by an indorsee
against an acceptor, it is necessary to prove tlie handwriting of the first indorser, but
it docs not appear that the drawer and first indorser was the same party. There might
be a distinction between Robinson v. Yarrow and the point under consideration, on
the ground tliat an authority to draw and an authority to indorse are dificrent things.
The reason for holding that acceptance admits the drawer's signature, because the
acceptor is bound to know the writing of the drawer, might extend also to an indorse-
ment by the same party; and so also the reason that the acceptor Is bound to look at
the drawer's sign.ature, for if the bill is drawn payable to the order of the drawer, the
drawee should look further, and see if the drawer has not ordered it ; for if ho has not,
the bill is Incomplete.

(h) Canal Bank v. Bank of Albany, 1 Hill, 287 ; Talbot v. Bank of Rochester, id.
29.5; Dick v. Lcvcrick, H La. .573 ; Horfsman v. Ilenshaw, 11 How. 177.

(0 Coggill V. American Bank, 1 Comst. 113 ; Hortsman v. Henshaw, 11 How. 177 :
Meacher v. Fort, 3 Hill, S. Car. 227.

(j) Robinson v. Yarrow, 7 Taimt. 455, 1 J. B. Moore, 150. So, though the indorse-
ment was made before acceptance. Park, J., id.

(k) Cooper r. Meyer, 10 B. & C. 468 ; Bceman v. Duck, 11 M. & W. 251

CI I. IX.] WHAT ACCEPTANCE ADMITS. 323

tioii ; and lie cannot afterwards defend himself by showing it
to be a forgery, even if he made the admission beheving the ac-
ceptance to be his own.(^) If an acceptor who is bound by his ad-
mission pay a forged bill, this gives iiim no claim against an inno-
cent drawer, whose name was used.(m) If the acceptor of a bill
puts it into circulation, he thereby admits it to be a valid sub-
sisting bill, and cannot afterwards allege that he paid it before
maturity, (w)

A bill of exchange is presumed to be drawn on funds, with
the understanding between drawer and drawee that it is an
appropriation of the funds of the former in the hands of the lat-
ter, and acceptance is an admission that it was so drawn, and of
such a relation between the parties. (o) An acceptance for honor
does not, however, admit the genuineness of the signature of the
party for whose honor the acceptance is made. (7?) And if the
bill is so paid, the person paying may, if due diligence be used,
recover back the amount from the holder who received it.(^)

(/) Leach v. Buchanan, 4 Esp. 226.

(m) Hortsraan v. Henshaw, II How. 177.

(w) Hinton v. Bank of Columbus, 9 Port. Ala. 463.

(0) Jordan v. Tarkington, 4 Dev. 357 ; Raborg r. Peyton, 2 Wheat. 385 ; Horts-
man v. Henshaw, II How. 177.

(p) Wilkinson v. Johnson, 3 B. & C. 428. Abbott, C. J. said : " A bill is carried
for payment to the person whose name appears as acceptor, or as agent of an acceptor,
entirely as a matter of course. The person presenting very often knows nothing of the
acceptor, and merely carries or sends the bill according to the direction that he finds
upon it ; so that the act of presentment informs the acceptor or his agent of nothing
more than that his name appears to be on the bill as the person to pay it ; and it be-
hooves him to see that his name is properly on the bill. But it is by no means a mat-
ter of course to call upon a person to pay a bill for the honor of an indorser ; and such
a call, therefore, imports, on the part of the person making it, that the name of a cor-
respondent for whose honor tlic payment is asked is actually on the bill ; but still his
attention may reasonably be lessened by the assertion that the call itself makes to him
in fact, though no assertion may be made in words. And the fault, if he pays on a
forged signature, is not wholly and entirely his own ; but begins at least with the per-
son who thus calls upon him. And though, where all the negligence is on one side,
it may perhaps be unfit to inquire into the quantum, yet where there is any fault in
the other party, and that other party cannot be said to be wholly innocent, he ought,
not, in our opinion, to profit by the mistake into which he may, by his own prior mis-
take, have led the other ; at least, if the mistake is discovered before any alteration in
the situation of any of the other parties, that is, while the remedies of all the parties en-
titled to remedy are left entire, and no one is discharged by laches."

(q) Supra, § 4.

S24 NOTES AND BILLS. [CH. IX.

SECTION VI.

EXTINGUISHMENT OF THE OBLIGATION INCURRED BY ACCEPTANCE.

The holder of an accepted bill, however accepted, may lose
his right against the acceptor by waiver, operation of law, pay-
ment, release, or other satisfaction. Payment by the acceptor,
or a valid release to him, of course discharges tlie other parties,
who are regarded only as his sureties. And the holder may
waive the acceptor's obligation orally, and only by implication as
well as expressly, provided such waiver be definite, absolute, and
unquestionable. (r) Still, however, it is held that an express dec-
laration by the holder is necessary to discharge the acceptor, or
something which is its complete equivalent. Hence absence for
several years will not suffice. (s) It is undoubtedly true, that con-

(r) In an action by indorsees against an acceptor, it was proved that the plaintiffs,
having effects of the drawer in their hands, said at a meeting of the defendant's credi-
itors, " that they looked to the drawer, and should not come upon the acceptor of the
bill." In consequence of this, the defendant assigned all his property for the benefit of
his other creditors, and paid them 15s. on the pound. The drawer's goods in the plain-
tiffs' hands turned out to be of little value, and this suit was brought to recover of the
acceptor. "Lord Ellenhoroiujh directed the jury to consider whether the language used
by the plaintiffs amounted to an absolute unconditional renunciation l)y them, as hold-
ers of the bill, of all claims in respect of it upon the defendants as acceptors, whereby the
latter had entered into an arrangement with their creditors. In that case the acceptors

were discharged from their liability On the other hand, if the words only imported

that they looked to the drawer in the first instance, .... that they should not resort to
them (the acceptors) if satisfaction could be obtained from another quarter, they did not
waive tiieir remedy by this conditional promise, and the acceptors still continued liable
until the bill should be actually paid." The jury found for tlie plaintiffs. Whatley v.
Tricker, 1 Camp. 35. In Tarkcr v. Leigh, 2 Stark. 228, a suit by an indorsee against an
acceptor, it was proved that, prior to this action, the i)laintiff had threatened to sue the
defendant ; that the defendant called upon the plaintiff to ascertain the amount of
the demand ; that the plaintiff showed the defendant an account containing several
claims, and among them the bill now .sued on ; that the plaintiff said that he shoidd
look to the drawer for the amount of the bill due, and wanted no more of the defendant
than the other claims. The defendant paid the amount, on the supposition that the
whole of the plaintiff's demand was included therein, which he said he should not other-
^vise iiavc done. Lord Ellenborovrjh was "of opinion that, in point of law, the circum-
stances do not amount to an express renunciation, and nothing short of that would be
soflScient to discharge the defendant from his acceptance of the bill."

(s) Dingwall v. Dunster, 1 Doug. 247; Ellis v. Galindo, id. 2.'J0, note; Farqnhar
V. Sonthey, 2 Car. & P. 497. In Anderson v. Cleveland, 13 Last, 4.30, note, a suit by
an imlorsec against an acceptor, no demand was proved till three months after the bill
became due, and the drawer had in the mean time become insolvent. Lord Muns/idd

CH. IX.] EXTINGUISHMENT OF ACCEPTOR'S OBLIGATION. 325

duct or language on the part of the holder which is fraudulent,
or has the effect of fraud in inducing tlie acceptor to part with
his security, or otherwise subjects himself to loss, would liave the
effect of waiver. (^) But receiving interest from the drawer, or
from an indorser,(i<) or giving time to them,(?;) will not amount
to a waiver, although it has been held (erroneously, we think)
that giving time to the drawer, where the acceptance was known
to be for the accommodation of the drawer, discharged the ac-
ceptor. (?^)

said: " The acceptor of a bill or maker of a note always remains liable. The accept-
ance is proof of havintj assets in his hands, and he ought never to part with them unless
he is sure that the bill has been paid by the drawee."

{t) Where the holder agreed to consider an acceptance at an end, and entered in his
bill-book, " A's acceptance is at an end," and no demand was made upon the acceptor
for three years, it was held that the acceptance was waived. Walpole v. Pultency, cited
1 Doug. 248. Where the holder took a security from the drawer, and notified the ac-
ceptor that he had settled with the drawer, and that the acceptor " need not give him-
self any further trouble," it was held that the acceptance was waived. Black v. Pecle, id.
But in Adams v. Gregg, 2 Stark. 531, the accommodation acceptor desired the holder to
give up the acceptance ; the holder refused, but said that the acceptor should not be
troubled about it. Ahbolt, C. J. thought that the declaration was no discharge. In Wiu-
termute v. Post, 4 N. J. 420, Haines, J. said : " That a parol waiver is lawful, and will
discharge the acceptor, there can be no doubt. And the court was correct in charging
the jury, that if, in their opinion, the circumstances of the case and the conduct of the
plaintiff induced the defendant to believe that no further resort would be had to him,
it was a waiver. If the plaintiff induced the defendant fairly to suppose that he would
look to the drawer, and not to him, he thereby relieved the defendant from any further
care to secure funds in his hands to meet the dr^ift, and relinquished to the defendant
any liability that resulted from the acceptance. And whether he did so waive the
liability of the defendant was a question of fact properly submitted to the jury." A
plea of waiver must state that the party waiving was tiie holder of the bill at the time
of the waiver. Steele v. Harmer, 14 M. & W. 1.36, 831.

(«) Farquhar v. Southey, 2 Car. & P. 497, Moody & M. 14.

(v) Dingwall v. Dunster, 1 Doug. 247; Ellis v. Galiudo, id. 250, note; Farquhar
V. Southey, 2 Car. & P. 497.

(w) In La.Kton v. Peat, 2 Camp. 185, an action by an indorsee against an acceptor
for the accommodation of the drawer, Lord EllenhoroiKjh ruled that the indorsee, who
had taken the bill for value, but with full knowledge of the facts, and had, without the
concurrence of the acceptor, received part payment from the drawer, and given him
time to pay the remainder, had thereby discharged the acceptor ; on the ground that
the acceptor was only a surety for the drawer. Conversely, for a like reason, in Col-
lott V. Haigh, 3 Camp. 281, the same judge held that the drawer was not discharged by
giving time to such an acceptor. These cases were doubted by Gibhs, J., in Kcrrison v.
Cooke, 3 Camp. 362, and by Mansfield, C. J., in Raggett v. Axmorr, 4 Taunt. 730. In
Fentum v. Pocoek, 5 Taunt. 192, 1 Marsh. 14, where the defendants pleaded that they
accepted for the accommodation of the drawer, and that the plaintiff, who took the bill
for value and without knowledge of the facts, had taken a cognovit from the drawer,
against the will of the acceptors, it was held that the acceptors were not discharged, and

VOL. I. 28

326 NOTES AND BILLS. [CH. IX.

Whether such waiver or renunciation, however absolute, would
be valid if without consideration, may be doubted. There is,
or seems to be, some authority for it. (a;) But it is certain

the Nisi Prius rulings of Lord EUenhorough were denied to be law. In this last case it
will be observed that the plaintiif learned the fact of the suretyship subsequently to
taking the bill, but before he accepted the cognovit, while in the former cases the plain-
tiff knew the facts at the time he took the bill. But as to this Lord Mansfield said :
"As it appears to me, if the holder had known, in the clearest manner, at the time of
his taking the bill, that it was merely an accommodation bill, it would make no man-
ner of difference ; for he who accepts a bill, whether for value, or to serve a friend,
makes himself in all events liable as acceptor, and nothing can discharge him but
payment or release." Heath and Chambre, JJ. concurred. In Price v. Edmunds, 10
B. & C. 578, Parke, J. said : " I think the decision in Fentum v. Pocock was good sense
and good law." In Yallop v. Ebers, I B. & Ad. 698, Lord Tenterden, C. J. said, that
"Laxton v. Peat has been long overruled." Harrison v. Courtauld, 3 id. 36 ; Nichols
V. Norris, id. 41. See also Carstairs v. Rolleston, 5 Taunt. 551 ; Charles v. Marsden,
1 id. 224; Mallet w. Thompson, 5 Esp. 178; Smith v. Knox, 3 id. 46; Angell v.
Ihler, 5 M. & W. 600, 4 Jurist, 196 ; Strong v. Foster, 17 C. B. 201. In Ex parte
Glendinning, Buck, 517, Lord Eldon recognized the doctrine of Laxton v. Peat, 2
Camp. 185, and disapproved of Fentum v. Pocock, 5 Taunt. 192. See also Bank of
Ireland v. Bercsford, 6 Dow, 233; Theobald, Principal and Surety, p. 192, et scq. ;
Jones V. Brooke, 4 Taunt. 464.

The American cases approving the doctrine of Fentum v. Pocock are, Bank of JNI.
r.Walker, 9 S. & R. 229 ; Walker v. Bank of Montgomery Co., 12 id 382 ; Murray v. Ju-
dah, 6 Cowcn, 484 ; Farmers', &c. Bank v. Rathbone, 26 Vt. 19 ; Clopper v. Union Bank,
7 Harris & J. 92 ; Yates v. Donaldson, 5 Md. 389 ; Hansbrough v Gray, 3 Gratt. 356 ;
Lambert v. Sandford, 2Blackf. 137 ; Cronise v. Kellogg, 20 111. 11 ; Divcrsy v. l\Ioor, 22
id. 330. Sec also Church v. Barlow, 9 Pick. 547 ; Commercial Bank ;-'. Cunningham,
24 Pick. 270 ; Pickering v. Marsh, 7 N. H. 192 ; Grant v. Ellicott, 7 Wend. 227 ; Lord
V. Ocean Bank, 20 Penn. State, 384. But in Parks v. Ingram, 2 Foster, 283, the doc-
trine is laid down that an accommodation acceptor stands in the position of surety
upon the bill, and the drawer in that of principal ; so that a discharge of the acceptor
by the holder does not release the drawer. So Adie v. Metoyer, 1 La. Ann. 254. See
In re Babcock, 3 Story, 393 ; Baker v. Martin, 3 Barb. 634. It does not always dis-
tinctly appear from the cases what the true grounds for the decision were. The reason
in some is, that an accommodation bill is just like any other, and in the earlier cases
regrets have been expressed that accommodation bills ever came into use.

In other cases, it seems to be considered that, although the accommodation acceptor
in fact may stand in the relation of surety to the drawer, yet no evidence is admissible
to prove tliis, as it would be allowing parol testimony to contradict the written terms
of the instrument. If this is so, the rules as laid down in some courts with reference to
the point now under consideration would seum to conflict with the doctrine sanctioned
in the same courts, with reference to admitting evidence to show whcic> two parties sign
a joint or joint and several note, without expressing on its face that one is really a
surety, that the liolder knew the facts at the time he took the note, and afterwards, by a
valid agreement, gave time to tiic actual principal.

(r) The head note in Parker v. Leigh, 2 Stark. 228, states that the remuiciatioi.
must i)e express, and founded upon some consideration. But the decision was, thai
there was no express renunciation, and therefore no discharge ; and )\ is diflicult to sco
how this case is an authority for saying that an express renunciation needs a considera-

CH. IX.] EXTINGUISHMENT OF ACCEPTOR'S OBLIGATION. 327

that it must have full force and effect where it has induced
the acceptor to do any act whicli would be injurious to him if the
obligation were afterwards insisted on. We think that a waiver
operates by estoppel rather than by contract, and we should
therefore state the rule thus. Any renunciation Ibunded u[)on
a valid consideration, or acted upon in good faith by the acceptor,
so as to put him in a worse situation than if this renunciation
had not been made ; or any act of tlie holder authorizing the
acceptor to believe that the holder had renounced all claim upon
him, which belief was acted upon by the acceptor, discharges him.
An acceptor for the accommodation of the drawer, by payment
of the bill, acquires of course a claim against the drawer. But
if a bill be indorsed for the accommodation of the drawer, and
afterwards accepted, the indorser by payment acquires a claim
against the acceptor as well as against the drawer ; for he is not
a surety for the drawer to the acceptor, but for both to the
holder. (y/) It has been said in one case, that, where a holder
promised an acceptor that he would not sue him if he would
swear that the acceptance was forged, he would not be able to
hold the acceptor after such an oath, although the acceptance
were not forged, and the oath was false. But this, we think,
might be doubtful. (s) Any material alteration of the bill, or of

tion to support it. The true ground, it is conceived, is, that a waiver works by way of
estoppel rather than by way of contract. We should prefer to state the rule thus : An
express renunciation, founded upon a consideration, or honestly and fairly acted upon
by the holder, so as to put him in a worse situation than if the renunciation had not
been made ; or any act upon the part of the holder, giving the acceptor reasonable
ground to infer that the former had renounced all claim upon him; and acted upon,
— amounts to a discharge.

(y) Weir v. Cox, 19 Mart. La. 368.

(2) Stevens v. Thacker, Peake, Cas. 187. In this case, when the bill was presented
to the acceptor, he declared the acceptance to be a forgery. The holder agreed not
to sue the acceptor, if he would make an affidavit that he never accepted the bill ;
but, being afterwards convinced that the acceptor did accept, refused to receive the
affidavit, and brought an action. It was contended by the defendant, that the plaintiff,
having agreed to accept the defendant's affidavit as evidence that he was not the
acceptor, could not afterwards recede from the agreement. But Lord Kenijon said :
" Had the defendant sworn the affidavit, I should have held that he had discharged
himself from the present action, though such affidavit had been false ; for the plain-
tiff, who had agreed to accept that affidavit as evidence of the fact, should not, after
having induced the defendant to commit the crime of perjury, maintain an action on
the bill. But as in the present case tlie defendant had not sworn the affidavit, he
still remains liable to the plaintiff's action, unless he can prove the acceptance a for-
gery." See Lloyd v. Willau, 1 Esp. 178.

328 NOTES AND BILLS. [CH. IX.

the acceptance, without the assent of the acceptor, unless to cor-
rect a mistake, discharges him from hability. This subject is
considered hereafter.

A discharge of the acceptor by the law of the place where the
acceptance is made, and is to be performed, is equally binding
everywhere. Thus, where, by the law of the country where an
acceptance is made, if the drawer fails, and the acceptor has not
sufficient effects of the former in his hands at the time of accept-
ing, the acceptance becomes void, the acceptor is discharged from
all liability. (a)

A cancellation by the holder, or by a third party with the
holder's consent, is evidence of a waiver, and whether the can-
cellation in the latter case was by the consent of the holder, or
not, is for the jury to determine. (6) The cancellation of an ac-
ceptance by mistake does not operate as a discharge. (c) But if
the holder, aware of the mistake, causes the bill to be noted for
non-acceptance, he is estopped from afterwards saying that the
bill was accepted. (<i)

A release before the maturity of the bill will not discharge an
acceptor from liability to pay to a holder who took the bill in
good faith, without notice of the release ; (e) nor will a release
by the bolder to the drawee discbarge the latter from the obliga-
tion incurred by a subsequent acceptance, on the ground that he
was not liable at the time of the release. (/) A general release
by the drawer to the acceptor will, as between tliem, discharge
the acceptor, though the drawer is not the holder of the bill, and
had not then paid it.(^) Wiiere the drawee accepted in consid-
eration of a I'nture consignment of goods, with the prospect of a
profit on the commission for their sale, and the holder, with

(a) Burrows v. Jcmino, 2 Stra. 733.

(b) Sweeting v. liaise, 9 B. & C. 36.5, 4 Man. &. R. 287.

(c) Novelli V Rossi, 2 B. & Ad 757; Haper v. Birlvhccii, 15 East, 17; Fcrnandcy
V. Glynn, 1 Camp 426, note; Wilkinson r. Johnson, 3 B & C. 428.

{d) Bentinck v. Dorrien, 6 Ka.st, 199 ; Spioat v. Matthews, 1 T. R. 182.

(e) 1)0(1 V. Edwards, 2 Car. & P. 602.

(/) l)raj,'o V. Nettcr, 1 Ld. Raym. 65; Hartley v. Manton, 5 Q. B. 247. If an ac-
ceptor plead a release, the plea must set forth that the hill was accepted prior to the
release. Asliton v. Frcestun, 2 Man. & G. 1, 2 Scott, N. R. 273. In an action hy iho
payee again^^t the drawer, a general release to the acceptor, who had hecomc hankrupt,
and ohtiiiiicd his certificate, renders him a competent witness for the defendant. Scott
V. Litford, I Camp. 246.

((J) Sroti f. Lillurd, 1 Camp. 246, 9 East, 347.

CH. IX.] EXTINGUISHMENT OF ACCEPTOR'S OBLIGATION. 329

knowledge of such acceptance, received and retained the 'nils
of lading, it was held that he thereby discliarged the acccptoi.(/i)
If the drawee offers a conditional or partial acceptance, and the
holder gives notice of non-acceptance to any prior party to the
bill, without stating the nature of the acceptance offered, the
drawee is not liable. (i)

We have already seen that compliance witli the conditions of
an acceptance is necessary in order to charge the acceptor, and
that, when the conditions are performed, his liability immediately
attaches. (j) Neglect, by the holder of an acceptance payable at
a specified place, to present it at that place, docs not now dis-
charge the acceptor from liability, although he can prove that he
has been injured by such neglect, (/c)

If the holder receive from the acceptor another bill, indorsed
by the acceptor, as satisfaction or security for the first bill, he
discharges him, both as acceptor and indorser, by neglect to
give him notice of the dishonor of the last bill ; (/) but not if
the last bill was given as collateral security, and not indorsed
by him.(m)

(h) Mason v. Hunt, 1 Doug. 297.

(/) S|)roat V. Matthews, 1 T. R. 182; Bcntinck v. Dorrien, 6 East, 199.

(./) 'S'»/»-«, § 3.

(k) Sehag V. Abitbol, 4 Maule & S. 462 ; Turner v. Hayden, 4 B. & C. 1, 6 Dow &
R. 7 ; Rhodes v. Gent, 5 B. & Aid. 244.

(/) Bridges v. Berry, 3 Taunt. 130. See Kearslake v. Morgan, 5 T. R. 513.

(m) Bishop v. Rowe, 3 Maule & S. 362. See Hickling v. Hardey, 7 Taunt. 312;
Goodwin V. Coates, 1 Moody & R 221.

90 •

3S0 ^'OTES AND BILLS, [CH. X

CHAPTER X.

PRESENTMENT FOR ACCEPTANCE.

SECTION I.

OF THE EIGHTS AND DUTIES OF A PAYEE BEFORE ACCEPTANCE.

After acceptance the payee of a bill is in much the same
position as the payee of a note ; but the payee of a bill not yet
accepted holds an instrument which is incomplete. We will
therefore first consider what he is bound to do, and what he has
a right to expect in respect to acceptance.

His duty is to present the bill for acceptance to the right per-
son, at the right time and place, and in the proper way. His
right is to expect to receive an immediate, full, and uncondi-
tional acceptance. But there seems to be no principle of law
by which the holder of a negotiable bill of exchange, where noth-
ing has occurred which can be construed either as an acceptance
or a binding agreement to accept, can demand acceptance ; and,
in case of refusal, sue the drawee. Nor would the usage of
trade or custom be sufficient to give the holder the right to sue,
even thougli the drawee have funds of the drawer in his hands,
and ought in honor to accept. His refusal so to do, although
without reason, and inconsistent with tlie principles of fair and
honest dealing, does not form any good ground for the com-
mencement of legal proceedings against him on that account. (/i)

(n) Attempts by the holder to hold the drawee liable without acceptance were made
without avail in Mandeville v. Welch, 5 Wiicat. 277, where the suit was hrouj^lit in the
name of the drawer ; Tiernan v. Jackson, 5 Pet. .'J80 ; Schiininelpcnnich v. Bayard,
1 id. 264; Luflf v. Pope, .5 Hill, 413, 7 id. 577; N. Y. & Virj;inia State Banlv v
Gibson, .") Ducr, .'>74. In this last case Duer, J. said in substance : The law is well
settled, tliaf, altliou|j;h the refusal of tlie drawee to accept, who has funds in his hand*
wiiich he ou^'ht to apply to the payment of the i)ill, may render him lial)ie in damajies
to the drawer, there is no such privity between Iiim and the hold<r of the bill as can
entitle the hitter to maintain an action against him. Sec also Poydras r. Ifclamaro.

CH. X.] EIGHTS, ETC. OF A PAYEE BEFORE ACCEPTANCE. 331

The reason on which it has sometimes been urged that the
drawee may be liable, is that a bill of exchange operates as an
equitable assignment or appropriation of the funds ; and that the
drawee, after having received notice of the assigrmient, becomes
liable to the holder, and if he afterwards part with the funds,
he does so at his peril. There may be some dicta to the effect
that a bill of exchange is an assignment, (o) but no case that we
are aware of, with tlie exception of one, has held this doctrine in
an unqualified way, and that case must be considered as over-
ruled. (p) The doctrine is well settled, that before acceptance a
negotiable bill for a part of the funds is no assignment, but
becomes one on the drawee's signifying his assent, by accepting
the bill.(<7)

13 La. 98; Harris v. Clark, 3 Comst. 93. The drawee was held in Corser w. Craig,
I Wash. C. C. 424. In Luff v. Pope, 5 Hill, 413, Branson, J. said: "If the drawee
refuse to accept, tliere is no contract between him and the holder, and no action will
lie. And this is so although the drawee had funds, and ought in justice to the drawer
to have paid the bill."

The language of Sloiij, J., in Mandeville ii. Welch, 5 Wheat. 277, infra, note q, —
" unless an obligation to accept may be fairly implied from the custom of trade, or the
course of business between tlie parties as a part of their contract," — is, it is suggested,
rather broader than the cases would seem to warrant. For it is supposed that the
almost universal usage is for the drawee, when he has funds, to accept ; and yet the
fact that he has funds is not sufficient to raise any implication that any contract exists
between the drawee and the holder.

(o) Ejjre, C. J., in Gibson v. Minet, I H. Bl. 569, 602, said : " The theory of a
bill of exchange is, that the bill is an assignment to the payee of a debt due from the
acceptor to the drawer." It may be remarked, however, that it does not appear clearly
whether the learned judge was referring to a bill already accepted, or to one unaccepted.
But this dictum has been referred to as applicable to an unaccejited bill, and the same
remark is to be found in other cases.

(p) Corser v. Craig, 1 Wash. C. C. 424. In this case the indorsee of a bill sued the
drawee in the name of the payee and indorser, the drawee having refused to accept.
Before judgment the funds were attached on trustee process, as the property of the
payee and indorser. The plaintiff recovered, notwithstanding this, on the ground that
the bill was an assignment of the funds. Washington, J. said : " If the drawee refuse to
accept, the holder may sue the drawer, or the drawee in the name of the drawer, for
the debt originally due, in consequence of the implied contract of the assignor of a
chose in action that the debtor shall pay, and on failure, that the assignor will."

(q) In Mandeville v. Welch, 5 Wheat. 277, Story, J. remarked : " It is said that a
bill of exchange is in theory an assignment to the payee of a debt due from the
drawee to the drawer. This is undoubtedly true where the bill has been accepted,
whether it be drawn on general funds, or a specific fund, and whether the bill be in its
own nature negotiable or not; for in such cases the acceptor, by his consent, binds
and appropriates the funds for the use of the payee." " But where the order is drawn
on a general or a particular fund, for a part only, it does not amount to an assignment
of that part, or give a lien as against the drawee, unless he consents to the appropria-

332 NOTES AND BILLS. [CH. X.

It has been said, that, even after a conditional acceptance,
the bill cannot in strictness be held to have that effect, since
the drawee becomes bound by reason of the contract of ac-
ceptance, irrespective of the funds in his hands. (y) But the
theory is, even in such a case, that funds to the amoiint of the
bill have been assigned, and that the acceptor is estopped from
setting up any such objection as that there were no funds to
assign. Whether a negotiable bill for the whole amount of the
funds can operate as an assignment, may not be clearly settled,
perhaps, upon authority ; but on principle it may well be doubted
whether it would have this effect at law. (5) If it is an assign-

tion by an acceptance of the draft, or an obligation to accept may be fairly implied
from the custom of trade, or the course of business between the parties as a part of
their contract. The reason of this principle is plain. A creditor shall not be per-
mitted to split up a single cause of action into many actions without the assent of his
debtor, since it may subject him to many embarrassments and responsibilities not con-
templated in his original contract. He has a right to stand on the singleness of his
original contract, and to decline any legal or equitable assignment by which it may be
broken into fragments. When he undertakes to pay an integral sum to his creditor, it
is no part of his contract that he shall be obliged to pay in fragments to any other per-
sons. So that if the plaintiff could show a partial assignment to the extent of the bills,
it would not avail him in support of the present suit." See also Gibson v. Cooke, 20
Pick, 15; I'oydras v. Delamare, 13 La. 98 ; Cowperthwaite v. Sheffield, 1 S.indf. 416,3
Comst. 24.3. In Harris v. Clark, .3 Comst. 93, Ru(jgles, J. said : If the bill " had been
accepted by the drawees, it would have operated as an assignment of so much money
in the hands of the drawees, and it would have afforded the j>laintiff a remedy against
them." And on p. II. 5 : " It is clearly .settled that no action at law will lie in favor of
the hobler of a bill of exchange against the drawee, unless he accepts the bill." " The
researcli of the counsel for the plaintiff has not enabled me to find a case wliere it has
been held that, ujjon a negotiable bill of exchange, the drawee has been made liable in
equity to the holder of the bill without his acceptanci; or assent."

(r) HnrUmt, J., Cowperthwaite v. Sbeffiold, 1 Sandf. 416, infra, note s
(s) In Cowperthwaite v. Sheffield, 3 Comst. 24;}, I/iirlhnt, J. said : " A proper bill of
exchange does not of itself operate as an assignment to the payee of funds of the draw-
er in the hands of the drawee, and even after an unconditional acceptance it cannot in
strictness be held to have that effect, since the drawee becomes bound by reason of the
contract of acceptance, irrespective of the funds in his hands. He may refuse when ho
ought to accept by rea.son of his having funds, and yet neither he nor the funds would
in any way be bound or affected by the bill." In the same case, reported in 1 vSandf.
416, Viinderpofl, J. said : " If these bills bad been in the form of orders for the entire
proceeds of the shipment, they might, after notice to the drawee, have operated as an as-
signment of such proceeds But then they would not have possessed all the character-
istics of bills of exchange. If in such form they could be negotiated, they would on their
face convey information to every holder of the fuml on which they were drawn, and
which they carried with them " In N. Y. & Virginia State Bank v. Gib.son, 5 Duer, 574,
Diter, J. said : " A bill of exchange, in the proper sense of the term, never operates as an
assignment of the fund against which it is drawn, and when there has been no binding

CH. X.] RIGHTS, ETC. OF A PAYEE BEFORE ACCEPTANCE. 333

meiit, the question would arise whether the holder must sue in
his own name, or in that of the assignor. If in the latter, it
would seem to be inconsistent with the very object and distin-
guishing characteristic of negotiable paper, which permits the
holder to take it free from all prior unknown incumbrances,
because his claim would be liable to any offset which the drawee
might have against the drawer. The difficulty in allowing the
suit to be brought in the name of the holder would be, that there
is no privity of contract between him and the drawee. The
latter has had no connection whatever with him, and there is no
chance for the law of estoppel to apply, as in the case where
there has been a promise to accept, although not made directly
to the party seeking to avail himself of it. It has been hold that
a non-negotiable draft for the whole of a particular fund operates
as an assignment,(^) though it is somewhat difficult to see how
its operation could be such where the drawee expressly refuses
to accept, (m)

promise to accept, and no express agreement by which a trust has been created, it is
only by a positive acceptance, in the form which the statute prescribes, that a ri<;;ht of ac-
tion against the drawee can accrue to the holder." No case has been found in which
a negotiable bill has been drawn for the whole amount of the fund, and the drawee has
been sued on refusal to accept. But in Gibson v. Cooke, 20 Pick. 15, Dewey, J. said :
" It seems also to be equally well settled, that a draft by the creditor on his debtor, in
the form of a bill of exchange to the amount of the debt, or the whole fund in his hands,
is a good and valid assignment of the debt or fund"; — citing Cutts v. Perkins, 12
Mass. 209 ; Crocker v. Whitney, 10 Mass. 318 ; Clarke v. Adair, cited 4 T. R. 343 ;
bobbins v. Bacon, 3 Greenl. 346. But in none of these cases did the question arise on
ft negotiable bill.

(t) Cutts V. Perkins, 12 Mass. 209 ; Robbins v. Bacon, 3 Greenl. 346 Morton v. Nay.
lor, 1 Hill, 583. In Cutts v. Perkins, the drawee consented to the assigntncnt by accept-
ing. In Robbins v. Bacon, the language of Stonj, J., in Mandcville v. Welch, 5 Wheat.
277, that "where an order is drawn for the whole of a particular fund, it amounts to an
equitable assignment of that fund, and after notice to the drawee it binds the fund in
his hands,'' is cited and approved. If this doctrine is correct, such a draft need never be
accepted, but notice to the drawee is all that is requisite. In Morton v. Naylor, 1 Hill,
583, a landlord gave an order on his tenant to pay to A the rent accruing during a cer-
tain time', which the tenant, on presentment of the order, said he would do. The
landlord subsequently notified the tenant not to pay, but the latter disregarded the
notice and paid the order. Held, that the tenant had a right so to do, and that the land-
lord's claim for the rent was extinguished. In this case it will be seen that the drawee
consented to the assignment, and accepted, a verbal acceptance of a non-ncgoriable order
being valid as an acceptance, but the court in their opinion said : " The order to the
tenant was an equitable assignment of the rent in question with notice to the tenant,
who was bound to pay it according to the order, whether he liad accepted or not."

(«) In Williams v. Everett, 14 East, 582, a party remitted a bill to the defendants, hia

834 NOTES AXD BILLS. [CH. X.

Where the draft is not negotiable, and drawn for a part
of the funds, the cases are somewhat conflicting. Perhaps
the weight of authority favors the rule, that tlie assent of
the drawee is necessary f but there are cases that appear to
hold that it opei'ates as an assignment of the particular fund
from the time the drawee receives notice. (i;) In courts of

bankers, with directions to pay the amount of the bill, when collected, in certain specified
proportions to the plaintift' and other persons, who would produce letters of advice on
the subject. Before the maturity of the bill, the plaintiff notified the defendants that he
had received letters from the remitter, ordering payment out of the remittance, and
offered the defendants indemnity, if the defendants would indorse the bill over to him.
The defendants refused to act on the letter, or to indorse the bill, but admitted that they
had received directions for the application of the money. On maturity of the bill, the
defendants received the amount, and the plaintiff again demanded payment. Held,
that the act of receiving the bill, and subsequently collecting it, and notice of the
directions, did not bind the defendants to the plaintiff, against their express disseiU, to
apply the money in discharge of the plaintiff's debt, and that the plaintiff could main-
tain no action against the defendants for money had and received to his use, for want
of privity of contract, and that the property in the bill still remained in the remitter.
In Yates v. Bell, 3 B. & Aid. 643, a bill of exchange payable at the house of A had
been presented there for payment, and dishonored, and the acceptor afterwards remitted
to A money to pay the dishonored bill, f^nd also one of less value. A replied, in a
letter, that he had received the money, and that it should be carried to the acceptor's
account. He afterwards paid the smaller bill. It was decided that the holder of the
original bill could maintain no action against A, for want of privity of contract.

(v) In Gibson v. Cooke, 20 Pick. 15, a person entitled to quarterly payments from
a trustee drew an order on the trustee, to pay to a creditor " as the drawer's income
should become due," for a sum which did not correspond precisely in amount with one
or any number of the sums then due the drawer. The latter refused to accept. Held,
chat the order was not an assignment, and that the payee could not maintain an action
ugainst the drawee in the name of the drawer. In Mandeville r. Welch, 5 Wheat. 626,
it is laid down, that an order for a part of a fund does not amount to an assignment.
See Robbins v. Bacon, 3 Greenl. 346. In Poydras v. Dclamare, 13 La. 98, the drawee
refused to accept, and the order was held to be no assignment. In Cowpcrthwaite r.
Sheffield, 1 Sandf 416, Vanderpoel, J. said : " Where an order is drawn for a ])art of the
fund only, it docs not amount to an assignment of that part, or give a lien as against
the drawee, unless ho consent to the ajipropriation by an acceptance of the draft."

For cases from which it may be inferred that such a draft is a good assignment, see
Morton v. Naylor, 1 Hill, 583, where it is said that the same rule ajjplies at law as in
equity. Sec Taylor v. Bates, 5 Cowen, 376 ; Wheeler v. Wheeler, 9 id. 34 ; Pattison v.
Hull, id. 747 ; Peyton v. Hallett, I Caincs, 363. In the last case the question arose on
the point as to whether a witness in a suit, who held a draft for a jiart of the money
sought to be recovered in that suit, was an inoomj)etcnt witness on the ground of inter-
est. Liinmjslon, J. : " The order he had obtained amounteil to an assigimicnt of the
property to the extent of his demand, and the agent after its exhibition to him would at
his peril have parted with it to the ])laintiffs, or to any other person." Lewis, C. J., in
a dissenting opinion, said : " The bill drawn in his favor on the agent has never been
accepted, nor has the fund out of which it was to be paid ever come to liis hands.
The witness then, in my conception, had no interest in the fund."

CH X.] RIGHTS, ETC. OF A PAYEE BEFORE ACCEPTAXCE. 335

equity, where the doctrine of equitable assignment was first laid
down, such drafts have been held to be an assignment, cSven

In the following cases accepted drafts for a part of the fund were held to be assign-
ments. Legro V. Staples, 16 Maine, 252 ; Johnson v. Thayer, 17 id. 401 ; Debesse v.
Napier, 1 McCord, lOG ; M'Mcnomy v. Farrers, 3 Johns. 71. Where the drawer had
become bankrupt, and the assignee sued the drawee, but failed to recover, an order
disclosed by one summoned as trustee to pay over the money in his hands, though not
expressed to be for value rcceived, is prima facie an assignment. Adams v. liobinson,
1 Pick. 461. In Clarke v. Adair, cited by Buller, J., 4 T. R.343, an officer drew a bill
on an agent of the regiment payable out of the first money that should become due to
him on account of arrears. The agent refused to accept absolutely, but said he would
pay when effects came to hand. The drawer died, and his administrator brought an
action to recover the money. It was allowed by all parties that this was not a bill of
exchange within the custom of merchants. But Lord Mansfield held it to be an assign-
ment for a valuable consideration, with notice to the agent, and that he was bound to
pay it.

The question of the effect of a bill as an assignment has sometimes arisen in cases
where the drawee was not interested. Tims, in Cowperthwaite v. Sheffield, 1 Sandf. 416,
3 Comst. 243, the consignor of a shipment of cotton drew bills on the consignee against
the proceeds, and advised him thereof The bills were presented for acceptance before the
goods arrived, and acceptance was refused The consignee afterwards received the goods,
sold them, and, by a subsequent arrangement between him and the consignor, the pro-
ceeds were deposited with a third party, to* be paid over to the consignor when his
creditors should assent thereto, the consignor intending to apply them to the payment
of the bill. The holder of the bills, who had also other demands against the con-
signor, got possession of the funds, which were sufficient to pay the bills, by a judicial
proceeding founded on the bills and the other demands. In an action against the in-
dorser of the bill, it was held that the bills and letter of advice did not operate as an
appropriation of the proceeds to the payment of the bills, and the facts stated did not
sustain a plea of payment. In Harris v. Clark, 3 Comst. 93, a bill of exchange was
intended to be given by the drawer as a mortuary gift, and the plaintiff contended that
it was valid as such, or, if not a mortuary gift, it was an assignment. The drawees
had refused to accept, due notice had been given, and the holder sued the executors of
the drawer. It was held that the bill was valid neither as a mortuary gift nor an as-
signment. See the remarks of Ruggles, J., cited supra, p. 332, note q.

In Bradley v. Root, 5 Paige, 632, an order to pay a debt out of a particular fund
belonging to the debtor was held to be an equitable assignment, pro tanto, and to give
the creditor who received the order a specific equitable lien on the fund. In Marine,
&c. Bank v. Jauncey, 3 Sandf 257, 1 Barb. 486, it was held that drawing a bill on the
consignee of cotton purchased with its avails does not operate as an equitable transfer
of the cotton to a party who discounts the bill, or give him any lien upon the cotton or
its proceeds in the hands of the consignee and acceptor ; nor will a verbal understand-
ing at the time the bill was discounted, that the proceeds should be applied to the pay-
ment of the bill, affect such lien. An order drawn upon a particular fund specified in the
order by which the drawer divests himself of all control over the same, is an equitable
assignment of the same, but such an order is not a bill of exchange. Ibid. After drawing
a bill, the drawer has the same control of his funds in the hands of the drawee as he had
before ; and if the same funds come to his own hands, the holder has no equitable lien
upon them. Winter v. Drury, 1 Seld. 525. The head note in this case must refer to
the case where the drawee has not accepted, for it is well settled that an acceptor has a

336 XOTES AXD BILLS. [CH. X.

against the will of the drawee. (tf?) Whether a bank-check is so
far ditfereut" from a negotiable bill that it may operate as an
assignment, and subject a bank on which it is drawn to an
action, is considered subsequently. (x) It must be noticed, how-

lien on the funds or goods for his indemnity. See this case, infra. In order to consti-
tute an equitable assignment of money by means of an order, the order must direct the
payment out of a particular fund, and not generally out of any money to be received.
Phillips V. Stagg, 2 Edw. Ch. 108 ; Harrison v. Williamson, id. 430. A draft payable
out of a specific sum, accepted jjayable out of the amount, is an equitable assignment
of that amount. Vreeland v. Blunt, 6 Barb 182. In Winter v. Drury, 1 Scld. .525, it
was held that an ordinary bill of exchange prior to acceptance gives the holder no lien,
legal or equitable, upon tlie funds of the drawer in the Iiauds of the drawee. In this
case the bill was drawn for a larger amount than the funds in the possession of the
drawee, and the drawer, having sold tlie bill, assigned all his property and absconded.
The drawee refused to accejit, and afterwards transmitted all the funds of the drawer
to the latter by a check enclosed in a letter. The check and letter were received by the
assignee of the drawer, and the check passed to the credit of the estate. The holder
filed a bill in etiuity against the assignee to compel him to pay over the "amount of the
check, but the bill was dismissed.

In Row V. Dawson, 1 Ves. Sen. 3.31, a draft on a fund due out of a particular fund
was held an assignment as against the assignees of the drawer. So Ycates v. Groves,
1 Ves. Jr. 280 ; Ex parte Alderson, 1 Mad. 53 ; Watson v. Duke of Wellington, 1
Rus. & M 602. See Ex parte Prescott, 3 Deac. & C. 218 ; Burn v. Carvallio, 4 Mylne
& C. 690 ; Fitzgerald v. Stewart, 2 Sim. 333, 2 Rus. & M. 457 ; Malcolm v. Scott, 3
Hare, 39. Cases in which the rule is laid down that the draft on a particular fund
operates as an assignment after notice to the drawee, and that the consent of tlie latter
is immaterial, are Row v. Dawson, 1 Ves. Sen. 331, which was a case between the as-
signee of the drawer and the payee. The draft seems to have been in the hands of the
drawee, and nothing appears to show that the latter dissented. But Lord Chancellor
llardwicle said, in his opinion: " The drawee could not have paid the money to the
drawer, supposing lie had not been bankrupt, without making himself liable to the
defendants ; because he would have paid it with full notice of this assignment for valu-
able consideration." IJx parte South, 3 Swanst. 392, where Lord Chancellor Eldon
Eaid : " It has been decided in bankruptcy, tliat if a creditor gives an order on his
debtor to pay a sum in discharge of his debt, and that order is shown to tlie debtor, it
binds him ; on the other iiand, this doctrine has been brought into doubt by some
decisions in the courts of law, who require that the party receiving the order should
in some way enter into a contract. Israel v. Douglas, 1 II. Bl. 239 ; Legh i-. Legh,
1 B. & P. 447 ; Tatlock v. Harris, 3 T. R. 180. That has been the course of their
decisions, but is certainly not the doctrine of this court." Lett v. Morris, 4 Sim. 607.
In tills case the draft was payable by instalments. The drawee paid the first instal-
ment to the drawer, wlio handed it over to the plaintiff", the holder of the draft. The
second instalment was paid by the drawee to the plaiiitifT's clerk, the drawer not being
present. Tlic drawee, on the third instalment becoming due, refused to pay. The
holder then filed a bill against the drawee to compel him to pay ihc amount due, and
he was obliged so to do. Sir L. Shadwdl, V. C. said : " I entertain no doubt that the
order amounts to an equitable assignment."

{w) See cases in note, supra.

(t) Infra, chapter on Chocks.

CH. X.] RIGHTS, ETC. OF A PAYKF. I'.FFORE ACCFFTAXCE. 337

ever, that the payee, hehig tlie holder of tlie bill, may, if he
chooses, waive the right of presenting it for acceptance, just as
he may waive the right of demanding and receiving payment,
and so give up the money. And so he may delay presentment
for acceptance, if he chooses to do so. If the bill be payable so
many days after date, or on a day certain, he need not present it
for acceptance until maturity ; but it must be presented then,
and the right to require acceptance may be considered as merged
in the right to demand payment. (s)

It is usual, and better in such case, to present before maturity,
and to ascertain whether the bill is to be accepted or not ; both
as respects the holder, because the name of the drawee on the
hill gives it additional security, and enhances its negotiability ;
and as respects the drawer, that, if acceptance be refused, he
may be better able to withdraw his effects from the hands of the
drawee by receiving early notice of the dishonor. If the holder
elects to present such a bill, he must act in case of refusal in
the same way as if bound to present ; (a) but this cannot affect
the rights of a holder who purchases the bill before maturity,
without knowledge of the refusal. (6)

(z) Blesard v. Hirst, 5 Burr. 2670 ; Goodall v. Dolley, 1 T. R. 712 ; Dunn v. O'Keefe,
5 Maule & S. 282, 6 Taunt. 305, 1 Marsh. 616 ; Orr v. Maginnis, 7 East, 362 ; Philpott
V. Bryant, 3 Car. & P. 244, where Park, J. said : " I should destroy half the trade of
the city of London if I were to hold that bills made payable so many days after date
must be presented for acceptance." Bank of Washington v. Triplett, 1 Pet. 25, where
the holder's agent made an unsuccessful attempt to find the drawee, and gave no notice
either to the holder or to the drawer. It was held that these facts did not discharge the
drawer. Marshall, C. J. said : " Had the Bank taken no steps wiiatever to obtain an
acceptance, no viohition of duty would, according to the decisions, have been com-
mitted. Can an unsuccessful attempt to do what the law does not require place the
agent in the same situation that he would have stood in, had the drawee been found,
and had positively refused acceptance ? " Townsley v. Sumrall, 2 Pet. 170 ; Wallace
V. Agry, 4 Mason, 336, 5 id. 118; Bachellor r. Priest, 12 Pick. 399 ; Fall Kiver Union
Bank v. Willard, 5 Met. 216 ; Oxford Bank v. Davis, 4 Cush. 188; Allen v. Suydam,
20 Wend. 321, 17 id. 368; Bank of Bennington v. Raymond, 12 Vt. 401 ; Crosby v.
Morton, 13 La. 357 ; Smith v. Roach, 7 B. Mon. 17 ; Carmichael v. Bank of Pa., 4 How.
Miss. 567 ; Glasgow r. Copcland, 8 Misso. 268. In Chamberlyn r. Delarive, 2 Wils. 353,
a draft payable a few days after date was not presented till four months. The drawee
had become insolvent. Held, that the payee had lost all claim on the drawer, whether
the draft was negotiable or not.

(a) See the cases cited supra, note z ; U. S. v. Barker, 4 Wash. C. C. 464. So if he
elects to consider what passes on presentment as a refusal to accept Mitchell v. De-
grand, 1 Mason, 176.

(6) O'Keefe v. Dunn, 6 Taunt. 305, 5 Maule & S. 282.

Vol. I.— W

338 NOTES AND BILLS. •' [CH. X.

If the bill be payable at so many days after sight, or demand,
the payee, if he continues in possession of the bill, is then under
an obligation to the drawer and to the prior parties, if there be
any, to present it within a reasonable time, in order that the days
may begin at the expiration of which the bill is mature. (c) The
payee has a reasonable time within which to put the bill into cir-
culation, and so has each successive holder for value. (^) Bills
payable on demand or at sight are not presented for acceptance,
in this respect being like promissory notes, and the same is true
in general with regard to checks ; but there is a custom, as we
shall see, for banks to certify that checks drawn upon them by
customers are good, the effect of which is equivalent to the ac-
ceptance of a bill.(e) It has been held that presentment to the
drawee is necessary, even though the drawer has requested him
not to accept. (/) The holder is not bound to present again,

(c) See the cases cited supra, p. 337, note z ; Muilman v. D'Eguino, 2 IL Bl. 565, where
Eyre, C. J. said : " The courts have been very cautious in fixing any time for an inland
bill, payable at a certain period after sight, to be presented for acceptance, and it seems
to me more necessary to be cautious with respect to a foreign bill payable in that man-
ner. If, instead of drawing their foreign bills payable at usances, in the old way, mer-
chants choose for their own convenience to draw them in this manner, and to make
the time commence when the holder pleases, I do not see how the court can lay down
any precise rules on the subject. I think, indeed, that the holder is bound to jiresent
the bill in reasonable time, in order that the period may commence from which the
payment is to take place." Goupy r. Harden, 7 Taunt. 159, Holt, 342 ; Fry i\ Hill,
7 Taunt. 397 ; Mcllish v. Rawdon, 9 Bing. 416, 2 Moore & S. 570; Mulliek v. Kada-
kissen, 9 Moore, P. C. 66, 28 Eng. L. & Eq. 86 ; Robinson v. Ames, 20 Johns. 146;
Aymar v. Beers, 7 Cowen, 705 ; Prcscott Bank v. Caverly, 7 Gray, 217 ; Fernnndez v.
Lewis, 1 McCord, 322. In Dumont v. Pope, 7 Blackf 367, no time for payment was
specified. Presentment for acceptance in a reasonable time was held necessary. In
Elting V. BrinkerhofF, 2 Hall, 459, a non-negotiable order to "pay to A one hundred
dollars," was not presented till nearly six years from date. Held, that if this was an
inland bill, the drawer was discharged by the laches of the holder; if a cIiT>ck, present-
ment for payment at any time before the lapse of six years was sufiicient, unless tho
drawer could prove injury.

id) Sec infra. Tindal, C. J., Mcllish v. Rawdon, 9 Bing. 416, 427.

(/) Hill V. Heap, Dow. & R., N. P. 57. Scd quare. In Pridcaux ;;. Collier,
2 Stark. 57, the holder presented a bill the day before maturity. The drawee refused
to accept, having no funds, but remarked that the bill would not be due till the next
day, and that the drawer would probably jiut him in funds. On the day of maturity,
the drawer told the plaintiff that he hoped the bill would be paid, and that he would
endeavor to provide funds, and would see him again. Tho bill was presented to
the drawees the day after maturity. Held, in an action by the Iiobh'r against the
drawer, that presentment at maturity was still necessary, and the plaintitfs were non-
gnitcd. These cases would seem hardly to be supported by reason. It will !)e seen

CH. X.] RIGHTS, ETC. OF A PAYEE BEFORE ACCEPTANCE. 339

after refusal to accept and notice given, even though the drawer
requests him to do so, and promises that the bill shall be hon-
ored. (5^)

With regard to the necessity of presentment for acceptance
where the drawee has died, removed, absconded, or become in
any way incompetent to enter into a contract, most of the cases
have been decided with reference to presentment for payment ;
but there seems to be no good reason why the same principles
should not be applicable to both classes of cases. (A)

As to the person who is to make the presentment, it should be,
in general, the lawful holder or his agent ; but we have already
seen that a written acceptance is binding without any reference
to the party making the request. If, however, the acceptance is
oral, it must be made to one then having an interest in the bill,
or subsequently acquiring an interest on the credit of the words
so spoken. (t)

We have already stated that bills payable at a certain number
of days after sight or demand must be presented within a reason-
able time ; and it now becomes necessary to see what is meant by
this reasonable time. It does not seem clear from the authorities
whether this question of reasonable time is one for the court or
the jury. Some of the cases appear to hold that it is a question
for the jury, some decide that it is a mixed question of law and
fact, and others that it is a question of law for the court. (7) Our

subsequently, that, where the drawer knew that the drawee had no funds, the former is
not entitled to notice of dishonor, on the ground that drawing the bill under such circum-
otances is a fraud. How then can it be said that he is entitled to have a useless pre-
sentment made, when he has no right to require notice of it ? In the latter case, it
does not distinctly appear that the drawees had no funds, but it is fairly to be inferred
from the case. Besides, if there was reasonable ground for the plaintlif to rely upon
the declarations of the drawer, it hardly seems just that the latter could object to want
of presentment.

(<7) Hicklingr. Hardey, 7 Taunt. 312, 1 J. B. Moore, 81.

(h) See Chap. 11. If the drawee of a bill cannot be found at the place where the
bill states him to reside, and it appears that he never resided there, or has absconded,
the bill is to be considered as dishonored. Wolfe v. Jewett, 10 La. 383.

(j) Supra, c. 9, § 1, p. 286.

(j) In Mailman v. D'Eguino, 2 H. Bl. 565, Eyre, C. J. said: •' The question, what
is reasonableness of time, must depend on the particular circumstances of the case, and
it must always be for the jury to determine whether any laches is imput'^able to the
plaintiff" Buller, J. said : "The question is, whether due diligence was used by the
plaintiffs in this case. Upon all the fiicts, the jury have found that there were no laches
in the plaintiff and there is nothing in the state of those facts, as they appear upon the
evidence, to warrant the court to say that the verdict is against law." In Fry v. Hill, 7

340 NOTES AND BILLS. [CH. X.

own view, derived from the authorities cited in the note, and
from the reason of the case, is this. Where the facts are few
and simple, and the acts or admissions of parties clear and un-
equivocal, the question is one of law for the court. But where
the rights and liabilities of parties depend on contracts, and a
variety of transactions and dealings arising therefrom, or where
the facts are contradictory and complicated, it is a question for
the jury to determine. It may, perhaps, be regretted that this

Taunt. 397, Gibbs, C. J. said : " If we were to grant a new trial, the result would come
at the last to this ; it would be a question for the jury whether there has been a de-
fault to present the bill within a reasonable time. That question has already been left
to the jury, and they have found that the bill was presented in a reasonable time.
We think, as the matter stands, it is perfectly right." Goupy v. Harden, 7 Taunt. 159.
In Wallace v. Agry, 4 Mason, 336, Stori/, J. said : " What that reasonable time is, de-
pends upon the circumstances of each particular case, and no definite rule has as yet been
laid down, or indeed can be laid down, to govern all cases. The question is a question
of fact for the jury, and not of law for the abstract decision of the court. Such, as I
take it, is the doctrine of the authorities." In Fernandez v. Lewis, 1 McCord, 322,
Gantt, J. said : " What is reasonable time depends upon the particular circumstances
of the case, and it is for the jury to determine whether any laches is imputable to tho
holder .... The verdict of the jury was legally correct, and cannot now be disturbed."
In Shute v. Robins, Moody & M. 133, 3 Car. & P. 80, Lord Tenterden, C. J. said:
" The only question in this case is, whether the plaintiffs or their servant used due
diligence in forwarding the bill in question. This is a mixed question of law and
fact ; and, in expressing my own opinion, I do not wish at all to witlidraw the case from
the jury." In Mellish v. Rawdon, 9 Ring. 416, 2 Moore & S. 570, Tindal, C. J. said :
'• Whether tlrfrc has been, in any particular case, reasonable diligence used, or whether
unreasonable delay has occurred, is a mixed question of law and fact, to be decided by
the jury, acting under the direction of the judge, u])on the particular circumstances of
each case. The judgment of the Court of Common Pleas in Muilman v. D'Eguino,
2 H. Bl. 56.5, .seems to us to lead directly to tiiis conclusion, and to no other." Straker
V. Graham. 4 M. & W. 721 ; MuUick v. Radakisscn, 9 Moore, P. C. 66, 28 ling. L. & Eq.
86. In Prescott Bank v. Caverly, 7 Gray, 217, Bigelow, J. stated the rule as follows*
"Ordinarily, the question whether a presentment was within a reasonable time is a
mixed question of law and fact, to be decided by the jury, under projjer instructions
from the court. And it may vary very much, according to the particular circumstances
of each case. If the facts arc doubtful or in dispute, it is the clear duty of the court
to submit them to the jury. But wlicn they are clear and uncontradicted, then it is com-
petent for the court to determine whether the time rcciuired by law for the presentment
has beep exceeded or not."

In Aymar v. Beers, 7 Cowen, 705, the defendant sought to excuse delay in present-
ing, on account of the sickness of the payee. The court below rejected the evidence,
and ordered a nonsuit, though the defendant insisted on his right to go to the jury, upon
the question. The court above held, that although the reasonableness of time was a
question of law for the court, yet that sickness was an excuse, and ordered a new trial.
The cases on negotiable paper cited in support of the doctrine, however, arose with
regard to the reasouubleness of time in giving notice, and not in respect to present-
ment for acceptance. Sec Elting v. Brinkerhofl", 2 Hall, 459.

en. X.] RidiiTs, i:tc. of a tayee before acceptance. 341

question of reiuoiialilo time is not made certain in England and
in this country by law, as it is in France. (/c) Many cases have
arisen upon this point, but as each one was decided on its own
peculiar circumstances, they do not go very far towards estab-
lishing a general rulG.(/)

One element which lias an important bearing on the subject of
the reasonableness of delay, is the fact that the bill has been
circulated. A holder may put the bill into circulation without
presenting it for acceptance, and while the bill contin\ies in cir-
culation, a considerable delay, even of a year or more, may not
be laches; yet if the holder were to take the bill up from circu-
lation, a short delay would then be laches, (m) although this dues
not mean that he must instantly upon coming into possession
of the bill elect either to present or circulate it.(w)

If a bill payable abroad after sight be received in business,
it is not necessary to send it abroad by the first opportunity,
nor need any bill payable after sight be sent directly to tlie
place on which it is drawn, (o) though a holder would hardly

(k) Code dc Commerce, L. 1, T. 8, a. 160; 1 Pardes. 434, 435, 2 id. 391. The
holder is bound to allow the drawee one day for every fifteen miles between the place
where the bill is drawn and that on which it is drawn, that the drawee may receive ad-
vice. 1 Pardes. 382.

(/) See the cases cited sttpra, p. 339, note^.

(m) In Muilman v. D'Egiiino, 2 H. Bl. 565, BuUer, J. said : "But here I must ob-
serve, that I think a rule may thus far be laid down as to laches, with regard to bills
payable at sight, or a certain time after sight ; namely, that they ought to be put into
circulation. If they are circulated, the parties are known to the world, and their credit
^ looked to ; and if a bill drawn at three days' sight were kept out in that way for a
year, I cannot say there would be laches. But if, instead of putting it into circu-
lation, the holder were to lock it up for any length of time, I should say that he was
guilty of laches." Wallace v. Agry, 4 Mason, 336, 5 id. 118.

(n) In Mellish v. Rawdon, 9 Bing. 416, Tindal, C. J., after quoting the language of
Sillier, J., supra, note m, said : " The meaning, therefore, of the expression above re-
• irred to is, and indeed the very form of the expression denotes it, that he must not lock
the bill up for an indefinite time ; that there must be some limit to its being kept from
circulation ; and what limit can there be, except that the time during which it is locked
up must be reasonable ? But what is or is not reasonable for that purpose, a jury
must, with the assistance of the judge, under all the ciivumstances of the particular
case, determine."

(o) It was contended by the defendant in Muilman !■. D'Eguino, 2 H. Bl. 565, that
the bills which were drawn in London on Calcutta ought to have been forwarded
^y the first ship that left after the indorsement of the bill to the plaintiffs, but the objec-
tion was not sustained. In Wallace v. Agry, 4 Mason, 336, 5 id. 118, the bill was
drawn in Havana on London. Story, J. said : " It has been said that the plaintiff
was bound to send it (the bill) directly from Havana to England by some regular con-
29*

34i NOTES AND BILLS. [CH. X.

be justifiod in sending the bill to a remote place, wholly out
of the course of trade. (;>») But a bill drawn in Havana on
London may be forwarded by the way of the United States ; (q)
one drawn in London on Lisbon, by tlie way of Paris and Ge-
noa ; (r) and one drawn in New Orleans on Liverpool, by tlie way
of New York. (5) The custom and usage of trade will of course
have an important bearing on the question of delay. (^) Also the
distance between the place where the bill is drawn, and the resi-
dence of the drawee. The falling or rising of the rate of ex-
change may likewise be considered, (m) the holder having a right

veyance, and had no right to remit it to Boston for sale. I am of a different opinion.
The party who receives a negotiable bill payable afcer sight has a right to sell it in the
market where he resides, or to send it to any other place for sale. He is not hound
personally to make a remittance of it, or to send it directly to the country on which it
is arawn. He is at full liberty to put it in circulation, or to send it to any otiicr
place for sale or remittance ; and the only limitation upon this right is, that he shall
have it presented within a reasonable time, be the conveyance direct or indirect.
To be sure, the usage of trade is to be consulted on this, as on other occasions. The
holder of such a bill is not at liberty to send it to very remote places, wholly out of
the course of trade, if there be unreasonable delay thereby in the presentment for ac-
ceptance ; and thus to fix the drawer with an indefinite responsibility. But, on the
other hand, the transmission in a direct trade is not necessary. No one can doubt that,
by the course of trade, many bills of exchange drawn in Havana on England are sent
to the United States for remittance or sale. The very testimony in this case estab-
lishes this fiict. It would be a most inconvenient rule to hold that such a negotiation
of bills was at the sole peril of the holder. I know of no rule of law reaching to such
extent. In my judgment, the remittance of tlie bill to Boston for sale was not a dis-
charge of the defendants."

(p) Slon/, J., Wallace v. Agry, supra, note 0.

(q) Waihice V. Agry, 4 Mason, 336, 5 id. 118.

(/■) Goupy V. Harden, 7 Taunt. 1.59..

(s) Bolton V. Harrod, 9 Mart. La. 326.

(t) Wallace v. Agry, 4 Mason, 336. In this case, reported h Mason, 118, Story, J
said : " The evidence in the ca-sc of the usage of mcrciiants, if not good evidence of
the law, was evidence as to their understanding of what was reasonable time, and in
that view proper for the consideration of the jiuT ; that with reference to such usage
he would put it to the jury to say whether the present bill was not, in ])oint of fact, put
into negotiation, or transmitted for presentment, within a reasonable time." Shutc v.
Robins. Moody & M. 133, 3 Car. & P. 80 ; Prescott Bank v. Cavcrly, 7 Gray, 217.

(«) The falling of the rate of exchange was an excuse offered for delay in Wallace
V. Agry, 4 Mason, 336, 5 id. 118; Mcllisli v. Kawdon, 9 Bing 416, 2 Moore & S. .570.
In this last case TindciJ, C.J. said : " So long as the exciiange remains steady, or at all
events, if it rises after he (the holder) has taken the bill, his interest does not materially
clasli with that of the drawer; and on sueii a case the jury would |)robal)ly think, with
reference to the interest of both, that the reasonal)le lime for sending forward tlie bill
was satisHcd by the allowance of a shorter and less extended period of time than if the
interest of the holder and the drawer were in conflict and competition witii each othc-.

CH. X.] RIGHTS, ETC. OF A PAYEE BEFORE ACCEPTANCE. 34B

to delay wlicre there is a reasonable ground for supposing that
the exchange may become more l)encricial to him.(f)

The means and facility of communication between the places
should be considered, where the party who presents the bill has
had it in his possession for some length of time ; (iv) so also tlie
fact that war exists between the two countries. (x) A delay oth-
erwise unreasonable would be excused l)y inevitable accident, or
invincible obstruction, as by severe illness. (//) Whether the fact
that the bill has passed through several hands may not have some
effect in gradually shortening the reasonable time to which each
successive holder is entitled, docs not appear to have been con-
sidered ; but it has been held that, in determining the point of
reasonable time, the jury are to look at the interests of the
drawer, as well as those of the holder,(2) and it would seem that

But if, iis iiappcncd in the present case, the exchange falls immediately after the sale of
the hill, the jury might then think a more extended period might fairly and reasonahly
be allowed the iiolder, in ordei^to enable him, bona Jide, to endeavor to make a fair
profit, or, at all events, to endeavor to secure himself from actual loss."

(v) Mullick V. Eadakisscn, 9 Moore, P. C. 66, 28 Eng. L. & Eq. 86, limits the
right of the holder to wait for a more favorable rate of exchange to cases where he has
reasonable ground to expect it soon. The bill in this case was drawn in Calcutta on
Hong Kong. Parke, B. said : The court " thought that the evidence proved that, fot
the whole of the time, a period of more than five months, bills on China were alto-
gether unsalable in Calcutta ; that such was the permanent and regular state of the
market ; and that although, if there was a reasonable prospect of the state of things
being better in a short time, the holder would have had a right, with a view to his own
interests, to keep the bill for some time, he had no such right when there was no hope
of the amendment of that state of things ; and we are of opinion that the evidence
fully justified this conclusion from it, and that the court, deciding on facts, as a jury,
were perfectly rigiit."

{lo) See Straker v. Graham, 4 M. & W. 721 ; Sluite v. Robins, Moody & M. 1.33,
3 Car. & P. 80 ; Dumont v. Pope, 7 Blackf. 367.

(.r) U. S. V. Barker, 1 Paine, C. C. 156, 163, where Livingston, J. said : " When it is
considered that the bill was drawn in time of war, which renders any intercourse pre-
carious and not of very frequent occurrence, it would be too much for any court to
say that the delay here complained of shall destroy the right of the plaintiffs to re-
cover on this bill."

(y) In Ayniar v. Beers, 7 Cowen, 705, the plaintiff offered evidence of sickness to
excuse delay. The court below rejected it as not sufficient, and nonsuited the plaintiff.
The court above set aside the nonsuit on that account.

(z) In Mellish v. llawdon, 9 Bing. 416, Tindal, C. J. said: "The point which
arises in this case is whether, in determining the question of reasonable time, the
jury are to look exclusively to the interests of the drawer, or may take into account
those of the holder also. And we are of opinion, there is no rule of law, and no
custom was proved at the trial, which should prevent the jury from looking, for
that purpose, to the interests of both." Mullick v. Radakissen, 9 Moore, P. C 46,
26 Eng. L. & Eq 86.

344 NOTES AND BILLS. [CH. X.

there should be some limit to the question, independently of the
Statute of Limitations. The continued solvency of the drawee,
and the want of proof of actual loss by laches, have been held to
be no answer to the objection of delay in presentment. (a) The
law is different with respect to bank-checks, which subject is con-
sidered subsequently. (6) As may be supposed from the almost
infinitely varying change of circumstances in each case, tlie ac-
tual lapse of time in the cases varies considerably. (c) And,

(a) UuWuk V Radakisscn, 9 Moore, P. C. 46, 68, 28 Eiig. L. & Eq 86, where Parle,
B. said : " It remains to consider only one point, which was insisted upon in the
court below, and also argued at the bar before us ; namely, that, as the drawers re-
mained perfectly solvent from the date of the bill to the present time, the rule as to
presenting in a reasonable time did not apply, and that there was no laches which
would constitute a defence by the drawers unless they had incurred a loss by that
laches. The court below decided that the solvency of the drawers, and the want of
actual loss by laches, constituted no answer to the objection of laches. We think they
were right. There is no trace of such a qualification in the elaborate judgment of
Tinclal, C. J. in Mellish v. Rawdon, (1) Bing. 416,) in'which the circumstances which
constitute a reasonable delay are fully discussed. No mention is made of the insol-
vency of the drawer subsequent to the drawing, although it did occur in that case, or
some loss by the drawer being an essential condition to the application of the rule laid
down; and in Muilman v. D'Eguino, 2 H. Bl. 56.5, it was clear that the failure of the
drawer caused no damage to the plaintiff, being before the time that the bill could pos-
sibly have been presented in India ; yet that circumstance was not mentioned as dis-
pensing with the obligation to present in a reasonable time; and with respect to all
bills of exchange payable after date, it is fully settled that neither the want of jjresent-
ment at the time the bill is due, nor the want of due notice, arc excused because the
drawer has continued solvent, or the holder incurred no loss by non-presentment or
want of regular notice. This point was fully considered in the case of Carter v.
Flower, 16 M & \V. 743, and we believe admits of no doubt; and we agree with the
court below, that the continued solvency of the drawers does not prevent the applica-
tion of the rule that the bill must be presented in a reasonable time, with reference to
the interest of the drawer to put the bill into circulation, or the interest of the drawee
to have the bill speedily presented."

(b) Lifni, chapter on Checks.

(c) In Muilman t'. D'Eguino, 2 H. Bl .56.5, liills drawn in London on Calcutta, at
ninety days,, were circulated in England for seventy-eight days, then forwarded to Cal-
cutta. The ship in which they were carried arrived in the Ilooghly River, Oct, 3, seven
months after the date of the bills. On Oct. .5, the holder notified the drawee, who was
absent from Calcutta, and the latter refused to accept, by letter, Oct. 17. The bills
were protested, Oct. 20. Held, no laches. In Goupy v. Harden, 7 Taunt. 159, the
bill was drawn in Loudon on Lisbon at thirty days, circulated through Paris and Ge-
noa, and ))rcsenled, after a delay of tln'ce months and ten days. Held, no laches, in an
action liy indorsees against their indorsers. In Fry v. Hill, 7 Taunt. .'597, a bill drawn
in Windsor on London, at one monfli, was presented after a delay of fom- days, Sun-
day intervening. Held, no laches. In Siiute r. Robins, Moody & M, 133, 3 (^ar. & P.
80, u bill drawn in Plymouth on London, at twenty days' sight, was not preseoied till
nine days. Held, in an action by indorsees against indorsers, that there were nc l.ichea

OH. X.] RIGHTS, ETC. OF A PAYEE BEFORE ACCEPTANCE. 345

whatever the reasonable time may be, the liolder who exceeds
it discharges all prior parties, because he takes upon himself
the risk both ot" the drawee's non-acceptance and of his insol-
vency.

It has been held that an agent is bound to present immediately,

In Mullisli I'. Rawdoii, a bill drawn in England on Rio de Janeiro, at sixty days, was
kept hy the holder nearly five months, the rate of exchange having fallen. Held, no
laches, in an action by the holder against the drawer. In Straker v. Graham, 4 M. &
W. 721, a bill drawn in Carbonear, Newfoundland, on Poole, P^ngland, at ninety days,
was not presented till three months after date. Carbonear is twenty miles from St.
John's, with a daily means of communication between the places. The mails were sent
from St. John's to England three times a week, and the average length of the voyage
being eighteen days. Held, that the bill was not presented within a reasonable time,
no excuse being shown for the delay. In Mullick v. Riidakissen, 9 Moore, P. C. 46,
28 Eng L. & Eq. 86, A drew a bill in Calcutta on B of Hong Kong, at sixty days'
sight, and indorsed it to C. C kept the bill five months, and indorsed it to D. D
kept the bill from July 2.5111 till Sept. 7th, and then forwarded it to Hong Kong. It
was presented for acceptance, October 24, eight months after date, and acceptance was
rcfuscd. The ordinary length of the voyage between the two places is one month.
The bill was protested, November 28. D sued A, the drawer, who defended on the
ground of unreasonable delay. Held, that he was not entitled to recover. This case
is tiicrcfore an authority to show that the laches of a prior holder in circulating a
bill is a good defence for the drawer as against a subsequent holder.

In Wallace v. Agry, 4 Mason, 336, the defendant's agent drew a bill at sixty days in
Havana on London. The plaintiff sent the bill to his agent in Boston, who ke[)t it,
on account of the low rate of exchange, for eighty-four days, and then sent it to
London, where it was presented four and a half months after date. On the first trial,
the jury disagreed on the facts, but on the second, 5 Mason, 118, found for the plaintiff".
In Kobinson v. Ames, 20 Johns. 146, a bill at sixty days was drawn in Augusta, Ga.,
on New York, and circulated, and presented in two and a half months from date.
Held, in an action by an indorsee against the drawers, no laches. In Gowan v. Jack-
son, 20 Johns. 176, the bill was drawn in Antigua on London, at ninety days, and
circulated. A delay of six months had occurred. A packet usually left Antigua
for London once a month. Held, in an action by the indorsees against the drawers,
no laches

In Aymar v. Beers, 7 Cowen, 705, a bill drawn in New York on Richmond, Va., at
three days, was presented after a lapse of about a month. Woodworih, J. was in-
clined to think that there might be laches, but the case was decided on the point
that sickness was a good excuse for the delay, in an action by indorsees against
the drawer. In Prescott Bank v. Caverly, 7 Gray, 217, presentment in Boston during
banking hours on Wednesday of a bill at sight, indorsed to the holder in Lowell after
banking hours the previous Saturday, and forwarded by the holder to Boston on
Tuesday, was held sufficient to charge an indorser. In Fernandez v Lewis, 1 McCord,
322, a bill drawn in Charleston on New York, at three days, was not presented for two
and a half months The holder lived several days in the same house with the drawee.
Held, that the drawer was discharged by the delay. In Dumont v. Pope, 7 Blackf.
367, one month's delay was held too much, the distance between the place where the
jill was drawn and that on which it was drawn being only eighteen miles, with a
communication three times a week between the places. In Bolton v Ilarrod, 9

846 NOTES AND BILLS. [CH. X.

or US soon as he can by ordinary means, a bill which is forwarded
to him to obtain acceptance ; and that, if he fails so to do, he is
liable to his principal for any loss that may ensne in consequence
of tlie delay m presenting, (c?)

It will be seen hereafter, that no presentment for payment need
be made on any day set apart either as sacred, or otherwise, by
law or usage ; and that it must be made within reasonable hours,
which may vary with the place ; thus, if at a bank, then during
banking hours ; if at a place of business, then during business

Mart. La. 326, a bill drawn in New York on Liverpool, at thirty days, was sent by
the way of New York. A delay of two and a half months was held no laches. la
U. S. y. Barker, 1 Paine, C. C. 156, a bill drawn in the United States on Liverpool
was presented three months from the date. AVar existed between the United States
and England. Held no laches.

(d) In Allen v. Suydam, 17 Wend. 368, the principal received a draft dated Jnly
21st, payable to his order, two months after date, on August 16th, and he placed it
in the hands of an agent for collection the same day. Tiie agent forwarded the
draft Sept. 2d, and on Sept. 7th it was presented to the drawees, who refused to accept,
saying that they never accepted for the drawer without instructions, but expected to
hear from him in a short time. On Sept. 10th, the draft was again presented, and the
drawees refused to accept, because the drawer had instructed them to do so. It
appeared that, subsequent to the drawing of this bill, other bills of the same drawer had
been accepted and paid by the same drawees ; that at the date of the bill the drawees
had funds of the drawer in their hands, but none at the time of presentment, and that
the principal gave the agent no special instructions with regard to ])rcsentment. A
verdict was directed for the plaintiffs, and sustained. The justice of this case, at least,
is very doubtful. It will be seen that the bill, being payable at a certain time after date,
need not have been presented for acceptance by the holder at all, but the agent pre-
sented it nine days before maturity, after having kept it in his hands seventeen days. Ho
had no instructions from the principal to present it immediately, and it is very difficult
to see wliy the agent was required to do more than the principal was bound to do. It also
appeared in the case, that the lateness of presentment had nothing whatever to do with
the refusal, and that, if the agent had presented the very day he received it, it would not
have been accepted, nor was there any time between tiie date of tiie bill and its maturity
when the drawees would have accei)ted. Why, then, must an agent be required to make
an utterly useless presentment, when any holder, in the exercise of reasonable diligence,
would not be required to ])resent, even if there was a fair prosjjcct of acceptance 1 Tho
case was affirmed, however, 20 Wend. 321, on this ])oint. The reasons given are not
satisfactory. The opinions of various writers arc cited, and tho reasons, so far as they
can be collected, are, that the holder has an interest in having the bill accepted as soon
as possible, and therefore his agent is bound to present immediately. But it is no
negligence for tiie principal not to present, and it can hardly be said to follow that this
would be negligence in the agent. And if it is so much for the interest of the principal
to obtain acceptance, is he not guilty of negligence in not giving the agent S])ecii\l in-
8tru(;lioiis to do so, which the agent woubl be bound to follow. It is said, " that, even
where the [irincipal is habitually negligent in attending to his own interests, it form? no
excuse for similar negligence on the part of his agent." This reason cannot ajjplyherc,
for the facts do not .show negligence at all. Wo supijosc the real reason for the decision

CH. X.] RIGHTS, ETC. OF A PAYEE BEFORE ACCEPTANCE. 347

hours, or when some one is present who is authorized to accept
or refuse ; if at a dwcllhig-house, then while the family are- up,
and not in the hours when they have retired. (e) We are not
aware that there are more than a very few decisions on these
points, with respect to presentment for acceptance ; (/) but it is
conceived that the same principles arc applicable to this and to
presentment for demand. It has already been remarked, that
the holder should have the bill with him when he asks for accept-
ance. If he does not produce it, and the drawee is willing to

was the authority of Bank of Scotland v. Hamilton, 1 Bell, Comm. 320, and Van "Wart
V. Woolley, 5 Dow. & R. 374. In Bank of Scotland v. Hamilton, 1 Bell, Comm.
320, note 2, 4th ed., the plaintiff sent a bill to his agent to collect. It was proved that it
was not customary to present such bills for acceptance, but only for payment. The
agent did not present it till maturity. Between the day of drawing and maturity the
drawee failed. It did not appear that the bill would have been accepted if it had been
presented immediately. It was held that the defendant was bound. This case cannot
be regarded as an authority. It was decided in the Couit of Session in Scotland, and
the bare facts are mentioned in the note to Bell's Commentaries, without any reasons.
In Van Wart v. Woolley, 3 B. & C. 439, 5 Dow. & R. 374, the agent neglected to give
his principal notice of the non-acceptance of the bill. It appeared that the drawee had
no funds of the drawer, and consequently the latter was not entitled to notice ; that the
princij)al had received the bill from a party who did not indorse it, and that this party
was liable without notice. The suit was brought by the principal against the agent. At
the time of the suit it was not certain that the plaintiff had not lost his remedy against
the party from whom he received it, on account of want of notice. All that is said by
the court, Abbott, C. J., with regard to the liability of the agent is : " Upon this state of
facts it is evident that the defendants have been guilty of a neglect of the duty which
they owed to the plaintiff, their employer, and from whom they received a pecuniary re-
ward for tlieir services. The plaintiff is therefore entitled to maintain his action against
them, to the extent of any damage he may have sustained by their neglect." This, it
would seem, is assuming the very fact in dispute, which is, that the agent was guilty
of neglect in not giving the principal notice, when notice would have availed him
nothing, and when the principal, if he had himself presented, could not have been
required to have sent notice to any party. No authority is cited, nor is any reason
given ; and the doctrine is laid down that an agent is bound to use greater diligence
in presenting a bill for acceptance, than if he himself were the owner and holder of the
bill. The hardship of these eases is mitigated, however, by the amount of damages
which the principal is allowed to recover. In Allen v. Suydam, 17 Wend. 368, the
judge at Nisi Prius instructed the jury, on the facts of the case, to i-eturn a verdict
for the whole amount of the bill. This was afHrmed in the Supreme Court, but
was reversed in the Court of Errors, 20 Wend. 321, where it was held that, although
the measure of damages is, prima facie, the amount of the bill, yet the defendant
may show circumstances in mitigation thereof. Senator Veiylanck dissenting. In a
subsequent trial of Van Wart v. Woolley, Moody & M. 520, the principal, having
recovered the full amount of the bill from the party from whom he had received it,
was allowed to recover nominal damages only.

(e) Infra, chap. 11.

(/) Nelson v. Fotterall, 7 Leigh, 179, is the only one which wc have met with.

34S NOTES AND BILLS. [CH. X.

accept in the usual way, by writing his name on the face, but
declines accepting otherwise, or without seeing the bill, he can-
not be charged with tlie penalties of non-acceptance ; but if the
drawee makes no such objection, and does or says what is the
equivalent of acceptance, he cannot afterwards refuse to be held
on the ground that he did not see the bill.(o")

A drawee may demand a delay of twenty-four hours, during
which he may inspect his accounts with the drawer, and deter-
mine whether to accept the bill or refuse acceptance, and during
this time the bill may be left with him. (A) As soon, however,
as he accepts or refuses, although within the time, the holder
should withdraw the bill. If the drawee delays acceptance more
than twenty-four hours, the liolder may treat this as a refusal to
accept, and must indeed do so to liold the other parties. (z) It
has been held, where the holder by his negligence or fault ena-
bles a third party to get possession of a bill which he had left
with the drawee for acceptance, and which had subsequently
been accepted, that the drawee is not liable in trover for the bill
to the holder. (^■)

{(]) Supra, chap. 9. In Fall River Union Bank i;. Willard, 5 Met. 216, it was held
that, where the liolder merely informs the drawee that he has the bill, and the latter tells
him that it will not be accepted nor paid, the indorser is not thereby discharged, if no
notice is given of the drawee's declaration. HtMiard, J. said : " The term presentment
imports, not a mere notice of the existence of a draft which the party has in his posses-
sion, but the exhibiting of it to the person on whom it is drawn, that lie may see the
same and examine liis accounts or correspondence, and judge what he shall do, —
whether he shall accept the draft or not. Here there appears to have been nothing more
than a casual meeting of the parties, and the conversation on the subject of the draft
ensued." In Carmichael v. Bank of Pa., 4 How. Miss. 567, S/iarlcei/, C. J. said : " Any-
thing which amounts to a notification of the holding of the bill, with a request to accept,
accompanied by the bill, will amount to a presentment. No formal presentment is ne-
cessary, or rather there is no form for a presentment. The bill explains itself, and tiie
object is understood in the mercantile community, when it is shown and an answer re-
quired."

(/() Ingram i-. Forster, 2 J. P. Smith, 242. In Bellasis v. Hester, 1 Ld. Kaym. 280,
l^rebi/, C. J. said : " The party may have tiic whole day to view the bill, and that is
allowed him by the law." Sec Hubbard, J., Fall River Union Bank i;. Willard, supra,
note rj.

{{) Sec Ingram v. Forster, 2 J. P. Smith, 242.

(j) Morrison v. Buchanan, 6 Car. & P. 18. In this case the plaintiffs' clerk left the
bill with the drawee for acceptance, and, subsequently calling for it, found that it had
been accepted and delivered to anotlicr person. The plaintiffs sued the drawee for the
bill. In (lefeiu-e, it was proved by the drawee that it was his custom to deliver accepted
bills to the party ealliiig for and accurately describing them ; that the bill in Kuit had
a private murk upon it, and was delivered to a. person who, on being asknJ, gave the

OH. X.] RIGHTS, ETC. OF A PAYEE BE/ORE ACCEPTANCE. 349

The bill should be presented for acceptance either to the drawee
in person, or to some one authorized by him to receive and ac-
cept. (A:) As the liolder must prove presentment in case he founds
any right or claim on non-acceptance, the burden lies on him, if
he presents it to an agent of the drawee, to prove that the agent
was authorized to accept. But this proof may undoubtedly, as
in other cases of agency, be circumstantial or indirect ; as, for
example, that he was the clerk of the drawee, known to be ac-
customed to do this kind of business for tlie drawee.

We have already seen, that an acceptance by one of two or more
partners binds the firm.(/) Therefore, if a bill is drawn on part-
ners, it may be presented to one alone. If it is drawn on two or
more who are not partners, it should be presented to all ; but ii
presented to a part, or if presented to all and refused by a part,
the acceptance will bind such as make it.

With regard to the place where presentment should be made,
we refer to tlie chapter on Presentment for Demand, where tho

right mark, amount, &c. Two days had elapsed between the time when the bill was
left and the time when it was called for. Littledale, J., in summing up, said to tho
jury : " The questions for you will be : first, whether there was any negligence on the
part of the plaintiffs in their conduct with respect to the bill ; and, secondly, whether
tliere was negligence on the part of the defendant. If you are of opinion that there
was negligence on the part of the plaintiffs, then they will not be entitled to recover;
but if the negligence was on the part of the defendant, then the plaintiffs will be entitled
to the verdict. If there wa.s not any negligence on the part of either plaintiffs or de-
fendant, then the matter may be reserved for further consideration ; as it is admitted
to be a doubtful point of law. As to the first point, you will consider whether the

plaintift's' witnesses were the cause of the finding out of the private mark If

he (the plaintiffs' clerk), by his improper act, enabled a person to ascertain tlie private
mark, and thereby to procure the bill to be delivered out according to the usual course
of business, then it will be for you to say whether you do or do not consider that as negli-
gence. The question as to the defendant is. Has he been guilty of that kind of negli-
gence which amounts to a conversion of the bill f " The jury found negligence in the
plaintiffs' clerk, and that the defendant had used due caution. Verdict for the defendant.

(/.) Cheek v. Roper, 5 Esp. 17.5. This was a suit against a drawer. To prove pre-
sentment, it was shown that the bill was sent by the witness, who carried it to a place
pointed out to him as the drawee's house, and offered it to some one in an adjoining
tan-yard, who refused to accept. The witness could not swear that the person to whom
he offered the bill was the drawee, or represented himself as such. Lord Ellenborough
said, that the allegation of presentment for acceptance to the drawee " was a material
one, as the drawer could only become liable on tlie acceptor's default, which default
must be proved. That the evidence here offered proved no demand on the drawee,
and was therefore insufficient, so that the plaintiff could not recover on the bill. Some
evidence must be given of an application to the party first liable."

(/) Sapra, p. 135.

vo - I. 30

360 NOTES AXD BILLS. [CH. X.

subject is treated of at length. "We may here, however, state, that
if a bill be presented at the proper place, whether this be desig-
nated on the bill, or otherwise determined, and no one appears
to accept it, it should be duly protested for non-acceptance, and
notice be given. And if the drawee cannot be found at the place
specified in the bill, and it appears that he never resided there,
the bill is then also to be considered and treated as dishonored. (7n)

SECTION II.

PROCEEDINGS ON NON-ACCEPTANCE.

What the holder should do in case of non-acceptance or a
refusal to accept, is much the same with the conduct which the
holder of a bill should pursue in case of non-payment. The
rule, in general, is, that a foreign bill should be protested for non-
acceptance, and due notice given to the prior parties ; otherwise
the holder will lose all remedy, both on the bill and the consid-
eration for which it was given. It is customary, but not neces-
sary, to protest inland bills. For a further consideration of this
subject, reference may be made to the chapters on Presentment for
Demand, (w) on Notice,(o) and on Protest.(7?) The peculiarities
with respect to bills of exchange, as regards acceptance for honor.,
better security, or by a drawee au besoin, have already been con-
sidered. (7) The holder, after due protest for and notice of non-
acceptance, is entitled to sue the drawer immediately, without
waiting for the bill to mature. (r) The reason is, that what the

(m) Wolfe V. Jewett, 10 La. 383. Sec Starke v. Chccsman, Carth. 509.

(n) In/rci, diap. 11.

(o) fnfra, chap. 12, 13.

(j)) Infra, cliap. 14.

('/) Siipm, \\\>. 64, 313.

{>■) Bri-;tit V. Punier, Bullcr, N. P. 209 ; Milford ;-. Mayor, 1 Dong. .55; Lord Eldon,
C. J., Bisliop V. Yoiin-r, 2 B. & P. 78, 83 ; Boot v. Franklin, 3 Johns. 207 ; Miller v.
Ilacklcy, 5 id. 375 ; Kohinson v. Ames, 20 id. 146; Wallace v. Af,M-y, 4 Mason, 336 ;
Sterry w. Robinson, 1 Day, 11; Wintlnop v. Pepoon, 1 Bay, 408 ; Evans v. Brid;:;es,
4 I'ort. Ala. 348 ; Watson v. Tar])ley, 18 How. 517. In Mississippi it is det'lared by
statute, that the holder shall not he sued till after maturity. In Watson v. Tarjiley, the
drawer liveil in Mississip|)i, the hill was drawn on New Orleans, and the holder lived
in Tennessee. The suit was brouf,'ht in the United States court, and it was held that
the statute did not alTect the rights of the holder. Although there is no right of actiin

en. X.] PROCEEDINGS ON NON-ACCEPTANCE. 351

drawer had undertaken has not been performed, the drawee not
having given him the credit which was the ground of the con-
tract. (5) The holder has also the right to sue any indorser forth-
with, (^) the latter being considered, in this respect, as a new
drawer.(?/) The amount wliich he is entitled to recover is the
face of tlie bill, interest, costs of protest, and damages. (r;) The
same rules apply here as in the case of non-payment.

The holder may, if he pleases, present again for payment, but
the liability of the drawer and indorsers having become fixed by
proper presentment and notice of non-acceptance, irregularity
of proceeding in presentment for payment and notice thereof
will have no effect in prejudicing his right in this respect. (it?)
Nor need presentment for payment be averred, nor, if averred,
need it be proved, the allegations to this effect being clearly
surplusage. (.^) There seems to be no lapse of time short of the
Statute of Limitations which can affect this right of the holder
to sue, or which can be considered negligence, as the same rule
applies as in the case of liability on any other contract, (y)

The holder is, as has been said,(2;) entitled to expect an ab-
solute acceptance, and the other parties have also the right to

till notice of non-acceptance, the debt is considered to have accrued at the time of draw-
ing the bill. Macarty v. Barrow, 2 Stra. 949, 3 Wils. 16. See Puckford v. Maxwell,
6 T. R. .52 ; Hickling v. Hardey, 7 Taunt. 312.

(s) Lord Ufansjield, Bright v. Purricr, cited 1 Doug. 55, who said that the law on
the point had been clearly settled so long ago as 1765.

(0 Ballingalls v. Gloster, 3 East, 481,4 Esp. 268 ; Mason v. Franklin, 3 Johns.
202; Weldon v. Buck, 4 id. 144 ; Aytnar r. Sheldon, 12 Wend. 439 ; Bank of Roch-
ester r. Gray, 2 Hill, 227 ; Watson v. Loring, 3 Mass. 557 ; Leno.x v. Cook, 8 id. 460;
Wild V. Bank of Passamaquoddy, 3 Mason, 505 ; Morgan v. Towles, 8 Mart. La.
730; Evans v. Gee, 11 Pet. 80. Li Aymar v. Sheldon, 12 Wend. 439, the bill was
drawn in Martinique on Bordeau.x. By the Law of France, protest for non-payment,
as well as for non-acceptance, is necessary to render the drawer and indorsers liable.
The indorsement was made in New York. Held, that, although presentment for pay-
ment would have been necessary to charge the drawer, it was not necessary to charge
the indorser.

(u) Lord Ellenliorough, Ballingalls v. Gloster, 3 East, 481.

(v) Sterry r. Robinson, 1 Day, 11 ; Weldon v. Buck, 4 Johns. 144.

{iv) Miller v. Hackley, 5 Johns. 375 ; Evans v. Bridges, 4 Port. Ala. 348. We have
already seen that the holder is not bound to present again, at the request of the drawer,
supra, p. 339.

(x) Mason v. Franklin, 3 Johns. 202 ; Wallace v. Agry, 4 Mason, 336.

(y) Stori/, J., Wild V. Bank of Passamaquoddy, 3 Mason, 505, where a year had
elapsed, and the drawer had become insolvent. Objections were made on these
grounds to the right of the holder to recover against the indorser, but were over-
ruled. See also Lenox v. Cook, 8 Mass. 460.

(s) Supra, p. 330.

'oij'2 NOTES AND BILLS. [CH. X.

require that the acceptance should be absolute, or else that they
should know that such an acceptance had been refused. The
reason is, that the drawer and indorsers* promise to pay in case
the drawee does not fulfil the contract expressed in the terms
of the bill ; because, if the holder had the right to receive a
conditional or partial acceptance without their knowledge and
consent, it would be, in fact, giving him tlie right to bind them
by another and different contract from that into which they had
entered. Therefore, if the holder take an acceptance varying
from the terms of the bill, without giving notice to the prior
parties, he discharges them. (a) If he causes the bill to be pro-
tested, and gives a general notice to all the parties of non-
acceptance, that is considered as a refusal of the drawee's offer,
and the latter is not bound. (Z>) Hence it would seem that the
only course for a holder to pursue in such cases, in order to hold
the drawee and the other parties, is to give them notice of the
terms offered, and obtain their consent to his taking the accept-
ance.

It has been said that the effect of neglect to give notice where
there is a conditional acceptance is done away or prevented by
the completion of the conditions before the maturity of the bill ;
and a neglect, where there is an acceptance as to part, and a
refusal as to the residue only, discharges the persons entitled to
notice as to the residue only ; but this has been doubted. These
questions have never been distinctly settled by adjudication, and
text writers do not agree in relation to them.(c)

(a) Bai/ley, J., Scbag v. Abitbol, 4 Maule & S. 462, 466 ; Paton v. Winter, 1 Taunt.
419. In Walker i'. State Bank, 5 Scld. .582, 13 Barb. 636, a bill drawn by the Em-
])irc Mills on A was presented by an agent of the holder, and accepted, " ))!iyablc at
the American Exchange Bank, Empire Mills, by A, Treasurer." The agent gave no
notice of this acceptance to the holder, drawer, or indorsers. Held, that the agent
sliould have treated the bill as dishonored, and given notice accordingly, and for neg-
lect so to do was liable to the holder.

(b) Sproat v. Mattliews, I T. R. 182. See Bentinck v. Dorrien, 6 East, 200 ; Mitchell
I'. Dcgrand, 1 Mason, 176.

(c) This is so stated in Baylcy on Bills, 5th ed., 274, and by Chitty, 331, citing
Bayley. Story, in his work on Bills, ^ 272, note, says, after quoting the remarks of
Baylcy : " It does not appear to mc, that, upon principle, this doctrine can be sup-
[)orted ; for the acceptance in both rases is contrary to tlic tenor of tlic bill, and may
vary the rights and interests of the antecedent parties. The duty, therefore, would
seem to be clear, that there should be a due protest, and due notice to the antecedent
parties of the dishonor, and qualified or conditional accc|)tancc, in order to bind thcra.
This is the doctrine asserted by Pothier, De Change, n. 47, 48."

CII. XI.] PllESENTMENT FOR DEJIAND. 353

CHAPTER XI

PRESENTMENT FOR DEMAND.

SECTION I.

REASONS FOR THE REQUIREMENT OF DEMAND OF PAYMENT OF NEGO-
TIABLE PAPER, AND OF NOTICE OF DISHONOR.

If a bill be regularly accepted, then the acceptor is bound as
an original promisor, in much the same manner as the maker of
a promissory note ; and the other parties are regarded in the
light of sureties, and are therefore liable only if the acceptor
does not pay. Tiiey certainly are not sureties in the strict sense
of this word, which bears a precise legal meaning of its own.
But they are as sureties, in that they pay only if he who is as
the principal debtor does not. The right and the duty of the
holder of an accepted bill, or of a negotiable promissory note, are
substantially the same. This right is to demand payment of all
who are responsible on the paper. This duty and obligation are
to give every one thus responsible all the opportunity to indem-
nify himself to which he is entitled by law. No one could hold
another as a surety or guarantor in any form, if he brings the
necessity of payment on the guarantor by his own wrongful neg-
ligence, or if by such negligence he makes such payment the
ultimate loss of the guarantor, by depriving him of the means of
indemnity to which he was entitled.

These universal principles of guaranty are applied to nego-
tiable paper in a strict and peculiar way.

If we remember the especial purpose and use of negotiable
bills and notes, and remember also that from this purpose and use
springs all that system of law which belongs to them peculiarly,
we shall understand the obligations of the holder of such paper,
end see that they are as the conditions on which his rights rest.

The drawer of a bill is as a surety for the acceptor, and the

Vol. L— X

854 NOTES AXD BILLS. [CH. XL

indorser is as a surety for the drawer (or for the maker of a note)
and for every previous indorser. The design and the effect of this
are to accumulate upon the bill the credit of as many persons aa
choose to lend their credit to it ; for with every new element of
security the adequacy of the paper to represent money, and take
its place and do its work in business transactions, is increased.

But merchants who thus enable the holder to coin their credit
are entitled to a certain protection ; and the measure of this
must be, that they are entitled to all the protection, meaning
thereby all the efforts of the holder to save them harmless, and
all the opportunities to save themselves, which are consistent
with the free use of the instrument as money. Nor is this right
of the parties founded merely on the justice due to them. It
rests also upon the fact, that the safer indorsers are, the more
readily will men of substance indorse, and therefore the more
certain it will be that the paper will be paid on the day when, by
its terms, this representative of money is to become money by
payment.

It is for these reasons that the holder is bound, in the first
place, to demand the payment of the paper, at its maturity, of the
person who as the principal debtor is primarily bound to pay it.
And then, if the amount due is not paid by this debtor, to
demand it at once of each person who is as a surety for the
original debtor, while some one else is as a surety for liim ; and
this demand must be made successively through all the parties
to the paper. By this means, every party to the paper as a surety
is sure that he shall not be held as a surety by reason of any
delay or insufiiciency in demanding the money from him who is
to the surety as a principal debtor.

The rules of law in respect to presentment, demand, notice of
dishonor, and liability on negotiable notes and bills, stand forth
from the main body of the common law as very distinct and
peculiar. And yet they arc nothing more, in substance, than a
very rigorous and precise application of the general rules in re-
spect to guaranty, and these rules flow from the most obvious
principles of common justice. A guarantor in general is one
who is bound to pay the debt of another if that other does not
pay it. lie is therefore a promisor on a condition. The condi-
tion is, that the principal debtor does not pay ; and this means,
that he does not pay when the debt is payable and is demanded ;

CH. XI.] PRESENTMENT FOR DEMAND. 355

and therefore an unsuccessful demand on the principal debtor
is the proper evidence of his failure to pay the debt, and of the
consequent liability of tlie guarantor. And if the guarantor can
show that he has sustained a loss by the unreasonable neglect of
the creditor in making this demand of the principal debtor, this
should constitute a sufficient defence, because it would show that
the plaintiir had failed in the discharge of an important duty,
and that the defendant had been injured by this failure.

It must also be remembered, that parties who put their names
on negotiable paper in sucli a way as to make them stand as
sureties of other parties, are as sureties, not only on condition,
but on two distinct conditions, and one of them on three. The
drawer is bound only if due presentment for acceptance is made
to the drawee, and then (the bill being accepted) if due demand
be made on the acceptor for payment. And every indorser is
bound only if due demand be made on the several parties before
him for whom he stands as surety.

But further than this neither drawer nor indorser is bound,
unless, in tlie first place, the requisite demand is duly made, and,
in the next place, due notice is given that the demand is inef-
fectual.

These two duties, or necessities, are entirely independent, and
the reasons for them rest upon distinct, although connected
grounds. Every one who in any way guarantees a debt has a
right to ask that this debt shall be collected of the principal
debtor if it can be by reasonable endeavors ; and such payment
of it is of course a discharge of all claim on the guarantor ; and
the indorsers of negotiable paper are, as we have seen, as guar-
antors.

But if the creditor cannot collect the debt himself, it is always
possible that the guarantor may, or may indemnify himself for
his payment by something which he may do himself, or may com-
pel the principal debtor to do. He is therefore always entitled to
an opportunity to procure for himself this indemnity ; and for
this purpose he must have immediate notice of that necessity for
it which is created by the non-payment of the debt he guarantees.
These two rights on the part of the guarantor are therefore dis-
tinct, and the two correlative duties or obligations of the creditor
are also disimct ; and hence a full discharge of the one duty by
the creditor is no excuse whatever for the non-discharge of tlie

356 NOTES AND BILLS. [CH. XL

other. That is to say, notice without demand leaves it uncertain
whether a demand would not have been effectual. And demand
without notice gives to the indorser no such opportunity of in-
demnifying- himself as the very fact of an ineffectual demand on
the principal makes it proper that he should have.

We have said that each indorser is entitled to have due de-
mand made against all parties prior to himself, and to notice of
non-payment. But in practice (a practice sanctioned by law to
a great extent), demand against all parties but the principal
payer is accompanied with notice of the default of that payer.
Thus, if A be the maker of a note, B the payee, and C, D, E,
and F indorsers, G, the last indorsee, makes his demand on A ;
and, if the note is not paid, gives to all the indorsers severally
notice that the note is not paid, and at the same time makes a
demand on them, stating that they, having indorsed tlie note,
are looked to for payment.

These rules are, as will be seen, substantially the same with
those which the law applies to all cases of guaranty. But, in
relation to negotiable paper, the law merchant makes these rules
far more precise and stringent than they are in relation to other
contracts. Thus, it defines wliat is unreasonable delay, both as to
demand and as to notice, by determining with great precision the
very time within which both of these duties must be discharged.
And it defines also the manner, means, place, and circumstances
of the demand and of the notice, so as to leave as little as possi-
ble open for question. And the law merchant does this for the
purpose of enabling mercantile men, or those who deal with mer-
cantile paper, to know at once and precisely what their duties
are, and what their rights are. And it dispenses with any proof
of actual loss by the indorser, if the duties in his behalf are cer-
tainly neglected, by assuming peremptorily that one bound upon
negotiable paper is injured if any delay occurs in a discharge by
the liolder of his duties in relation to it.

Such are the principles and reasons of the rules of the law
merchant in regard to the demand of payment of negotiable pa-
per, and notice of non-payment. And these rules will now be
considered h\ reference to the questions, by whom, of whom, in
what manner, when, and where the demand for payment should
be made. And we will then consider the excuses which may be
made for the omission or irrogularity of demand of payment.

CH. XI.] BY WHOM DEMAND MAY BE MADE. 357

SECTION II.

BY WHOM DEMAND MAY BE MADE.

The general rule must obviously be, that a demand of payment
should always be made by tlie owner of the paper, either person-
ally or by his duly authorized agent. For, as payment of a note
can only be good when made to a party who has a right to re-
ceive the amount due thereon, and to give a valid discharge to
the maker for the same, it would seem that payment can only be
demanded by one who has the power to pass a valid title to tlie
note, and to release the maker from all liability incurred by rea-
son of the instrument. Where a demand is necessary before the
promisor can be charged, it is clear that it must be a legal de-
mand ; that is, such as he is bound to comply with ; and we can
see no reason why there should be any difference in this respect
between such a demand and one necessary in order to bind an in-
dorser. We should say that the proper test, in any case, to deter-
mine whether the demand was made by the right person is this :
Would the maker, by payment of the note to the party demand-
ing payment, thereby buying up his own note, be placed in the
same position as an ordinary bona fide holder of any other note.
If he would, there can be no objection to the demand as regards
the person making it. If he would not, it is believed that the
demand would be insufficient, because not made by the right
party, (of)

(d) In Robarts v. Tucker, 16 Q. B. 560, a bill was accepted payable at a banker's,
and the banker paid it with a forged indorsement thereon. The acceptor, having been
obliged to pay the bill to the owner, sued the banker and recovered. Parke, B. said :
" If this were the ordinary case of an acceptance made payable at a banker's, there can
be no question that making the acceptance payable there is tantamount to an order, on
the part of the acceptor, to the banker to pay the bill to the person who is, according
to the law merchant, capable of giving a good discharge for the bill. Therefore, if the
bill is payable to order, it is an authority to pay the bill to any person who becomes
holder by a genuine indorsement. And if the bill is originally payable to bearer,
or if there is afterwards a genuine indorsement in blank, it is an authority to pay the
bill to the person who seems to be the holder." In Sussex Bank v. Baldwin, 2 Har-
rison, 487, Dayton, J. said: " Any person may present, at its maturity, a promissory
note of which he is put in possession, and if paid in the ordinary course of business,
!ind taken up, the payment is good, and if not paid, the demand is good as a ground-
work for notice to the indorsers." In Bachellor v. Priest, 12 Pick. 399, Wilde, J. said •

3o8 NOTES AND BILLS. [CH. XL

Demand may certainly be made by an agent duly authorized,
and the agency for this purpose need not be created by a written
instrument; it is sufficient if made by parol. (e)

The vpiestion has often arisen, whether a demand can be made
by the (;lerk of a notary. It is clear that, in cases where a pro-
test is unnecessary, the clerk may make the demand, for he is not
to be considered as acting in any official capacity, but as the mere
agent of the holder; and, as has been already said, such agency

"A presentment by any person in possession of a bill bona fide is sufficient to charge
tiie parties." In Leftley v. Mills, 4 T. R. 170, 175, Buller,J. : "The party makinjr the
demand must have authority to receive the money." A presentment, by the last in-
dorser, of a bill indorsed in blank by the payee, but made payable to a particular per-
son by the last indorsement, is sufficient to charge an indorser. Bachellor v. Priest,
12 Pick. 399. Tlic question has arisen, whether possession by an indorser of a bill
witli a subsequent special indorsement, there being no prior indorsement in blank, is
sufficient evidence of title. The following authorities hold that it is not, on the ground
that it appears by the bill itself that the indorser has parted with his title, and a receipt
from the last indoi-see, or a reassignment, is necessary. Welch i". Lindo, 7 Crunch,
159 ; Gorgerat v. M'Cart}-, 2 Dall. 144, 1 Yeates, 94 ; Thompson v. Flower, 13 Mart.
La. 301, where it is held that the fact that the last indorsement is cancelled is not
sufficient; Dicks v. Cash, 18 id. 45; Sprigg v. Cuny, 19 id. 253; GrifTon i». Jacobs,
2 La. 192 ; Hart v. Windle, 15 id. 265. In Mendez v. Carreroon, 1 Ld. Rayni. 742,
the pkintiff, an indorser, was nonsuited in an action by him against the acccjjtor, be-
cause he did not prove that he had paid the bill, having been sued by a subsequent
indorser. In Dehers v. Harriot, 1 Show. 163, it was held that a bill payable to A, and
indorsed by him to B, and by B to C, might be sued on by B. But it was said, in
argument by the plaintiffs, that " we proved that C had no interest." But the weight
of authority, however, is in favor of the sufficiency of the evidence. In the following
cases the last indorsement was cancelled. Bank of Utica v. Smith, 18 Johns. 230,
where objection was made to the demand, on the ground that the last indorsee only
could make it, but it was overruled. Cliautuuquc Co. Bank v. Davis, 21 Wend. 584 ;
Maidiattan Co. v. Reynolds, 2 Hill, 140 ; Dolifus v. Frosch, 1 Dcnio,367 ; Brinkley v.
Going, Breese, 288 ; Kyle v. Thompson, 2 Scamm. 432 ; Bowie v. Duvall, 1 Gill & J.
175. In the following cases, prior possession of the bill, witii the last indorsement un-
cancelled, was held sufficient. Dugan v. U. S., 3 Wiieat. 172 ; Lonsdale v. Brown, 3
Wash. C. C. 404 ; U. S. v. Barker, 1 Paine, C. C. 156 ; Picquct v. Curtis, 1 Sumner,
478 ; Pitts v. Keyser, 1 Stew. 154; Johnson v. English, id. 169 ; Norris v. Badger, 6
Cowen, 449; Mottram v. Mills, 1 Sandf 37. Sec Morris v. Foreman, 1 Dall. 193.
The case of Welch v. Lindo, 7 Cranch, 159, was decided in 1812, Marshiill, C. J. de-
livering the opinion. The case of Dugan v. U. S., 3 Wheat. 172, was decided in 1818,
the opinion being by Livingston, J. These cases are in opposition to one nnotiicr, and
in the latter no reference is made to the former.

le) Sussex Bank v. Baldwin, 2 Harrison, 487 ; Hartford Bank v. Stcdman, 3 Conn
489 ; Bank of Utica r. Smith, 18 Johns 230 ; Hunt v. Maybee, 3 Sold. 266 ; Freeman
V. Hoyntoii, 7 Mass. 483; Hartford Bank ». Barry, 17 id. 94, where Parker, C T.
said : "There is no case which requires that the i)er.soii making the demand should bo
authorised by letter of attorney ; it is sufficient that he Inis l)ecn requested to perform
the act, and that he has the note to deliver on payment" ; Shed v. Brett, 1 Pick. 40 '

CH. XI.] BY WHOM DEMAND MAY BE MADE. 359

may bo created by merely liaiidiiig- over the bill or note with
instructions to demand payment. (/) But in cases where a pro-
test is absolutely required as the only admissible evidence of dis-
honor, many authorities hold that, if the clerk makes the demand,
it is insufficient to charge an indorser, ou the ground that the
notary has no right to delegate the authority conferred upon him
by law. (if) There are some authorities, however, which hold
that such a demand is sufficient, and others in which demand
was actually made by the clerk, and no objection made to it on

Seaver v. Lincoln, 21 id. 267, where the demand was made by a sheriff, who received
tlie note and a writ, with instructions to demand payment, and in case of refusal to
serve the writ. S/kiw, C. J. : " An exception was taken at the trial, but not relied on
at the argument, that the demand of payment was not made by the holder personally
I am not sure that I understand the ground of this exception. If it was intended tliat
tlie demand was not made and the notice given by a person duly authorized, it is an-
swered by the proof that the witness was expressly authorized by parol to make the
demand and to receive payment, and he presented the note and had it ready to sur-
render, cither to the promisor or to the indorser, upon payment. Such authority was
amply sufficient, and payment to the witness would have been a good discharge."
But in Branch Bank v. Gaffney, 9 Ala. 153, it was held that, in the case of indorsed
paper, serving a writ by a sheriff was not a sufficient demand upon which to found a
notice, because the writ does not authorize the officer to receive the money. Sed qimre.
In Hartford Bank v. Barry, 17 Mass. 94, the note was indorsed by the cashier of a
bank, and transmitted to another bank, whose cashier caused the demand to be made.
No evidence of any express authority was offered, or of any general authority in such
cases. Objection was made to the demand, because not made by the holder or his
authorized agent. But Parker, C J. said : " As to the demand made on the maker of
the note, and notice of non-payment to the indorser, in the ease before us we can see no
sound objection. The cashier of the Hartford Bank put his official signature on the back
of the note, and sent it to the cashier of the branch bank in Boston, for the pm-pose of
making the demand, and it was by him caused to be done. It is insisted that this act
of the cashier of the Hartford Bank was without authority from the corporation. But
we think that the authority may be implied, it being the duty of cashiers to see to the
preliminary measures necessary to a suit upon notes. A cashier cannot transfer the
property of the corporation in a note, without authority from them, or perhaps from
the directors, pursuant to powers vested in them by the corporation ; but he may do
what is requisite for the recovery of a note. The defendant in this case has no right
to deny the authority of the cashier, for the corporation ratify his act by bringing the
action upon the act done by him. Had the note been sent on without any indorse-
ment by tiie cashier, the demand would have been good. The indorsement amounts
only to an authority to deliver the note to the maker or indorser, as cither should pay
it, and the payment to the person holding the note under such circumstances would
i ave been a discharge."

(/) Sussex Bank v. Baldwin, 2 Harrison, 487.

(g) Infra, chapter on Protest. But if the law of the place where a note is payable
sanctions demand by the clerk of a notary, such a presentment will be good in a place
where it is necessary for the notary to make the demand himself. McClune v. Fitch,
4 B. Mon. 599.

360 NOTES AND BILLS. [CH. XI.

that account. (//) Mr. Chitty, in an earlier edition of his work,
seemed to cite with approbation a dictum of Buller, J., to the
effect that such demand was insufficient. A correspondence was
soon after commenced by the notaries of London, who insisted
" not only that, by mercantile usage, such presentment is correct
and regular, and is almost invariably adopted, but tliat, as far
back as the memory of the oldest notary here can extend, it has
always been the custom so to present them." And a case is men-
tioned in which a notary was allowed by Lord EUenborough to
give evidence of such a presentment by him of a foreign bill.
They also said, that " commercial business must instantly come to
a stand if a different rule prevailed ; because it would be just as
impossible for all the bills in this country to be presented in per-
son by notaries as by bankers. "(/)

In the latest edition of the work, an opinion is expressed by the
learned editor that this practice " is amply justified by the law
of principal and agent, and not questioned in any case whicli has
occurred before the courts of England. "(j)

If the holder is dead, the administrator or executor should
make the demand, if any be appointed. (/t) If none is appointed,
the subsequent parties will not be discharged for want of pre-
sentment at maturity, if the executor or administrator causes
demand to be made witliin a reasonable time after his appoint-
ment. (/)

If the holder is insolvent, demand should be made by jiis
assignee, if any is appointed, (w) and if there be )ione, then it
seems that the holder himself may present. (m) If the hold-
er neglects, we should doubt whether his neglect should be
permitted to prejudice his creditors, if assignees were ap-
pointed with no unreasonable delay, and forthwitli made the
demand.

(/() Infra, chapter on Protest.

(/) Cliitty on Hills, 12th Am. cd., 400, note z.

[j) Chitty on Hills, 10th En<,'. ed, 3.i5, note 4.

(k) Story. Prom. Notes, § 2,50.

(/) Wiiite ?i. Stoddard, 11 Gray,

(m) Story, I'rom. Notes, § 249.

{») Story, Prom. Notes, § 249. In E.\ parte Molinc, 19 Vcs. 216, 1 Rose, 30.3,
Lord Eldoii said, with reference to notice : " The hanknipt re|)resents his estate until
assignees are clioscn." In that case it was held, that notice to a l)aiikrii|)i, as <lrawer
before the dioicc of assignees, wa.s good.

CH. XI.] OF WHOJI DEMAND 5IAY BE MADE. 361

It is said that any porsou who liappcus to be the holder of tlic
bill at the time it fulls due, wiiether by accident or otherwi^?,
may and ought to demand payment, although he may not have
the right to require it for his own benefit ; (o) but we have seen
that it may be doubted whether such holder should or could
make the demand, unless he had the right to deliver up the
notes on payment. In tlic ca!^e of a note made payable at a
particular place, it will be seen subsequently, that presentment
need not be made by any person, and tliat it is sufficient if the
note is there ready to be delivered up by some one authorized to
receive payment, (/y)

SECTION III.

OF WHOM DEMAND MAY BE MADE.

A PERSONAL presentment to, and demand of, the party bound
to pay, is not strictly necessary before an indorser can be charged,
for it is always sufficient if made to a person authorized to pay
the bill or note, at tlie right place and time, and in the proper
way.(r7)

Presentment may be made to the acceptor or maker himself,
or to his authorized agent, (r) and a presentment to the clerk of
an acceptor or promisor, at his counting-house, has been held

(o) Chitty on Bills, 365. The assii,'nees of a bankrupt who was merely an agent may
present and receive payment of bills and notes in their possession without being liable
in trover, though they must pay over the proceeds when demanded by the party en-
titled to them. Jones v. Fort, 9 B. & C. 764, 4 Man. & R 547 ; Tennant v. Strachan,
Moody & M. 377, 4 Car. & P. 31.

(/)) Infra, p 365.

(7) For presentment where the maker cannot be found, see infra, p. 448 ; in case of
bills or notes payal)le at a specified place, infra, p. 365.

(/■) Matthews v. Haydou, 2 Esp. 509. If the drawee goes to sea, leaving an agent
with jiower to accept bills, and the agent accepts one, it must be presented to the agent
for payment, if the drawee continues absent. Philips v- Astling, 2 Taunt. 206 In
Belmont Bank v. Patterson, 17 Ohio, 78, the notary went to a hotel where the ac-
ceptor had been boarding, and was informed that he had left town for a few days.
Held, that the indorser was liable without presenting the bill to, or demanding pay-
ment of, any one at the hotel ; Birchird, C. J. dissenting, on the ground that the notary
should have inquired whether the wife of the maker, or some other party, had not been
authorized to pay the bill in the acceptor's absence. The dissenting opinion would seem
to be the better one.

vol.. I. 31

3G2 NOTES AND BILLS. [CH. XL

sufficinnt, without showing any special authority given him under
such circumstances. (5)

Presentment of a partnership note to one of the partners is
sufficient ; (t) and if one of two partners dies before maturity,
presentment should be made to the survivor, and not to the
representatives of the deceased, because the liability devolves
upon the surviving partner. (z<)

Where there are several promisors of a note who are not part-
ners, it is necessary that the note should be presented to all

(s) Draper v. Clemens, 4 Misso. 52 ; Stainback v. Bank of Virginia, 11 Grat. 260 ;
Stewart v. Eden, 2 Caines, 121 ; Harris v. Packer, 3 Tyrw. 370, note; Reynolds v.
Cliettlc, 2 Camp. 596. But in La. State Ins. Co. v. Shamburgh, 14 Mart. La. 511, tlio
promisor, between the making and the maturity of a note, changed his domicil from
one place to another in the same State. Demand was made on his agent, with wiioni
he had left full powers to represent him in all things touching his affairs. Held insuf-
ficient to charge an indorser. Sed quwre. In Bank of England v. Newman, 1 2 Mod.
241, Holt, C. J. held, "that a demand of a servant of the drawer, who used to pay
money for him, was a good demand," to hold an indorser.

(t) " The general rule is, that where an acceptance is by partners, then the present-
ment for payment should be at their place of business, or at the dwelling-house of
either of them." Bacon, J., Otsego Co. Bank v. Warren, 18 Barb 290. But in this case
a notarial certificate of presentment " to one of the firm of W. B. & Co." was held in-
sufficient to charge an indorser, because it did not state who composed the firm, nor
the name of the person on whom the demand was made ; and that evidence of the cus-
tom of notaries to make such entries in their certificates was inadmissilfle, the custom
being bad. In Shed v. Brett, 1 Pick. 401, demand was made on one of two partners,
and it seems to have been taken for granted that there was no objection on that ac-
count. In Granite Bank v. Ayres, 16 Pick. 392, demand was made of a partnership
note, at the last place of business of the firm. An answer was given by the parties
occupying the place, that the firm had failed and the partners had left town. One of
the partners was, however, living in town, and his name was in the directory. Held in-
eufhcient to charge an indorser. In Erwin v. ]")owns, 15 N. Y 575, it was held that
jjresentinent to one of two persons who, by their signature, purport to constitute a
partnership, is sufficient to charge an indorser. In Crowley v. Barry, 4 Gill, 194, au
action by an indorsee against the payee and indorser of a partnership note, it was
proved that the makers had dissolved partnersliij), giving public notice thereof in a
newspaper in Washington, their place of business, and where the note was made, and
also that one of the partners was authorized to settle up the iiartnership concerns. The
plaintiff lived in Baltimore and had the note presented to the other partner. Arc/ur,
C. J. said : " It might be sufficient to say that this dissolution had by no evidence in tiie
cause been brought home to the knowledge of the holder of the note. But we do not
desire to determine the question on this ground, because we are clearly of opinion that
a demand on one of the partners was sufficient, as each partno' represents the iiartner-
ship. Before a dissolution, it clearly would not be necessary to make a dcnnind on
both, nor could it he necessary after a dissolution, for the partnership, as to all anfece
dent transactions, continues until they are dosed." A demand on the agent of ono
parlntT, after dissolution of the firm, in tho absence of the partner, was ncld oi\f
cient in Brown r. 'I'urner, 15 Ala. 8.'12.

(u) Cayuga Co. Bank v. Hunt, 2 Hill, 635.

CH. XI.] OF WHOM DEMAND MAY BE MADE. 363

before the liability of au iudorscr can accrue ; (v) but the au-
thorities are not uniform upon this point. (z^)

Where the maker dies before the maturity of the note, demand

(») In Union Bank v. Willis, 8 Met. 504, a note was signed by A, and on the bacic
was the signature of B & Co., wlio were not i)arties to the note. The holder demanded
payment of B alone. By the law of Massachusetts, the parties are liable as joint and
several promisors. Held, that the demand was insufficient. LIubbaid, J. said : " Tiio
precise question here presented, we believe, has not been decided in any reported case.
If the joint and several promisors are to be considered in the light of partners, then a
notice to one must bo esteemed a notice to all, as partners are but one person in legal
contemplation ; each partner, acting in such capacity, being not only capable of per-
forming what the whole can do, and of receiving that which belongs to all, but by such
acts necessarily binding all the partners. It follows, therefore, as an incident to such
joint relations, that all the partners are affected by the knowledge of one. But in re-
spect to mere joint and several promisors on a note, there is not such absolute commu-
nity of interest between them, nor such necessary connection with each other, as to con-
stitute them partners. The relationship is confined to the present specific liability of a
joint and several promise, and which cannot be extended by the act of one so that his
conduct shall necessarily bind the other. As between themselves, one promisor may be a
mere surety, and the other the debtor ; one surety may have received security for lend-
ing his name, the other not. Or, if there are three joint and several promisors, two may
be sureties, and the other the principal debtor, although the fact may not appear on the
note. As the incidents, then, of a partnership do not attach to such a limited joint lia-
bility, there being neither a community of interests nor joint participation of profit and
loss, the fact of knowledge on the part of the whole, from the actual knowledge of one,
does not follow as a presumption of law ; and demand upon one is not, therefore, in
law, a demand upon the wliole. If then the bringing home of knowledge to each, or
proof of a demand upon each, is a fact necessary to be proved, in order to bind third
persons, then such knowledge, or such demand on each, must be proved as any other
fact." It has been held that notice to each of two or more joint indorsers is neces-
sary in order to render any indorser liable. Sayre v. Frick, 7 Watts & S. 383 ; Shep-
ard V. Hawley, 1 Conn. 367.

(w) A demand upon one of three joint and several promisors was held sufficient in
Harris v. Clark, 10 Ohio, 5. Hilchcocl; J. said: "If we were to hold that a demand
must be made upon all the makers in order to charge the indorser, such decision would
operate to discharge many, if not all, indorsers of notes of a character similar to the
one now under consideration. It will be seen that the note is not payable at any par-
ticular place ; if it were, a demand at the place would be sufficient. But as it is, a per-
sonal demand was necessary. Now suppose the makers resided in different States, or in
different and distant parts of the same State, how could demand be made of all so as to
charge an indorser ? It must be made on the day the note falls due, or, where days of
grace are allowed, upon the last day of grace. Will it be said that demand can be
made at different and distant places on the same day, through the agency of letters of
attorney 1 I believe such a practice has not been heard of, at least we have found noth-
ing like it in the books." " Upon the whole, although we feel that there are apparent
difficulties in the way, we see no substantial objection to considering the makers of a
'oint and several promissory note in the light of partners in that particular fans-
tiction. True, they may be sued separately, or, like partners, they may be sued jointly ;
.\nd as [he joint and separate property of partners is liable for partnership debts, so the
property of all and each of the makers of such a note may be sabjected to its satis-
faction." The answer to the main objection would be, that, where the makers live

364 N'OTES AND BILLS. [CH. XI.

should, hi general, be made of his personal representatives ; (x)
but wliere an executor or administrator is allowed by law a
certain time within wliich to settle up the estate, and is not
liable before the expiration of that period, it lias been held that
an indorser is liable without a demand on the maker, provided
the note falls due within the time limited, (//) but not other-
wise. (2)

at so great a distance from each other as to make a demand on all on the day of ma-
turity impossible, a demand at that time as to all but one, at least, is excusable.

(r) Price v. Young, 1 Nott. & M. 438; Toby v. Maurian, 7 La. 493; Gowcr v.
Moore, 25 Maine, 16, where it was held, that knowledge on the part of the indorser tiiat
the maker had died, that his estate was insolvent, and that the note would not be paid,
constituted no excuse for non-presentment. The holder had, prior to the maturity of
tlie note, proved his claim in insolvency against the maker's estate, and notified the
indorser of the death, and that he, the indorser, would be looked to for payment.
The indorser was likewise notified again a mouth after the note fell due. The fact
that the indorser has become the administrator docs not dispense with demand and
notice. Juniata Bank v. Hale, 16 S. & R. 157. In Caunt v Thompson, 7 C. B. 400,
an action by an indorsee against the drawer, the party having possession of the bill
presented it at the acceptor's house, and said to the drawer, who had been made
the executor of the acceptor, and was at the last place of abode of the latter : " I have
brouglit a bill from C. (the plaintiff') ; you know what it is." The drawer replied : " I
am tlie executor of the acceptor; you must persuade the plaintiff to let the bill stand
over a few days, because the acceptor has only been dead a few days. I will see the
bill paid." Held a sufficient presentment. But in Magruder v. Union Bank, 3 Pet.
87, 7 id. 287, it was held that, if the maker dies and the indorser is appointed his ad-
ministrator, deniand on iiim as administrator is necessary to charge him as indorser.

(j/) Tliis is so declared in Massachusetts, where the time limited is a year. Hale v.
Burr, 12 Mass. 86, where Parker, C. J. said : "In England, however, there may bo
reasons for making a demand upon an executor or administrator of a deceased prom-
isor in a note necessary, which do not exist in this country ; and if the reasons upon
which the law is founded do not exist, there is no cause why wc should not decide
according to the nature and spirit of the contract. In this State, a demand upon an
administrator would in most cases be entirely migatory. He is not obliged to p.ay any
debt of the deceased, except such as are particularly privileged, until a year from his
appointment. If sued within the year, he is entitled to a continuance of cour.sc. This
indulgence is given to enable him to collect the effects of the deceased, and to ascer-
tain their sufficiency to discharge all the debts. If there should be a deficiency, a gen-
eral distribution takes place among all the creditors, without regard to the character
of their demands, unless in the few excepted ca.scs above alluded to. Under these cir-
cumstances, should he pay any debt, and it should afterwards ajipear that the estate is
insolvent, he pays at his peril. A prudent executor or administrator will therefore
seldom hazard the payment of a debt before he has ascertained the sitinition of the
estate, and a demand upon him would be sure to meet with a refusal. Such a demand
would, therefore, bo merely a troublesome formality, without any u.se ; and notice to
the indorser that, the promisor being dead, he will be looked to for payment, will
in every respect I)e as advantageous to iiirn as a previous demand upon the ])rornisor."
See Oriental Bank v. Hlakc, 22 Pick. 206. This has been so held in Louisiana. Lan-
dry V. Staii>;l)ury, 10 La. 48.''?.

(s) Sec Hale v. Burr, 12 Mass. 86; Oriental Bank v. Blake, 22 Pick. 20G. PuLnaiV'

CII. XI.] OF WHOM DEMAND MAY BE xMADE. 365

It will be seen hereafter that the insolvency of the maker or
aceeptor forms no valid excuse for non-presentment. (a) And it
has been held that a demand on the assignee is not sufficient. (6)
Certainly, if there is no assignee, the demand should be made of
the maker himself. (c) If the maker be an unmarried woman
when the note is made, but marries before maturity, the husbaiid
is the proper party to whom the note should be presented, if he
can be found. (<:/)

It may be added, that if the promisor should become a lunatic,
or otherwise incapable of making a valid contract, presentmc/it
should of course be made to his guardian, or the parties havii-g
legally the management or control of his property and busine^s.

We have already intimated, and shall show more fully here-
after, that, when a note or bill is payal^le at a particular place, )io
presentment or demand is necessary, as it is sufficient if the note
or bill is at that place ready to be delivered up to the party
calling for and prepared to pay it.(e)

J. said: "But if the note should fall due after the expiration of the year, and the
estate should not be represented insolvent, there would seem to be no reason why tho
bolder should not make a demand on the executor or administrator of the promisor ;
for he would then be liable to a suit upon non-payment, and upon a demand he might
safely pay ; and the indorser would have reason to complain of the laches of the holder,
if he had neglected to make a demand upon the executor or administrator, and to giva
notice of a default of payment, under such circumstances."

(a) Infra, p. 446.

(6) In Armstrong v. Thruston, 11 Md. 148, where the makers of a partncrsliip nota
had failed, and an assignment had been made, a demand at the place of business of the
assignee and trustee was held insufficient. Bartol, J. said the demand '■ ought to have
been made on the makers, or at their place of business ; tlicir insolvency does not
excuse the holder from a compliance with the statute."

((/) In Cromwell v. Hynson, 2 Esp. 511, a bill had been presented to the drawee, and
acceptance refused. The bill was then sent to the indorscr's house, and shown to his
wife, the husband being absent, and the circumstances comnmnicated to her. Held a
sufficient demand to charge the indorser.

(e) In Reynolds v. Chettle, 2 Camp 596, a bill accepted payable at H. & Co.'s,
bankers, was presented at the clearing-house to their clerks. Held a sufficient present-
ment. So Harris v. Packer, 3 Tyrw. 370, note. In Hunt v. Maybee, 3 Seld. 266, a
note, signed Jacob Ferdon, was presented at the place designated in pencil at the foot
of the note, to a person who, on being asked, said that he was the maker. Held, prima
facie, to be sufficient to charge an indorser. The defendant objected to the admission
of the evidence that the party inquired of said he was Jacob Ecrdon. Edmonds, J. :
" This was complete proof, for it was part of the res (jest(e ; and besides, tlie objection
s that it did not prove his identity, which is an objection as to sufficiency, not com-
petency, and the evidence was offered, not to prove identity, but merely as a part of
the maker's refusal to pay. There was no error there."
31*

366 NOTES AND BILLS. [CH. XI.

But if presentment is made at the place specified, or, in tlie
case of a note payable generally, at the place of business of the
acceptor or maker during business honrs, or at his domicil at a
reasonable hour of the day, it would seem that the presentment
is sufficient if made to any person to be fonnd on the premises,
especially if the maker is absent or inaccessible, for it is the duty
of the maker to be present and within reach, or, if absent, to
leave some one to pay the note or bill.(/) In the case of bills
payable at a specified place, it has been held that an allegation
of presentment to the acceptor is proved by evidence of present-
ment at the place ; (g-) or where the bill is payable at a banker's,
by presentment to his clerk at the clearing-house. (/i) But in
such case it has also been held that an allegation of presentment
at the place was sufficient, without any averment of presentment
to either acceptor or banker, (i)

Where there is no person upon whom demand can be made,,
an indorser is liable without presentment ; as where an agent,
authorized to sign notes for his principal, made a note which was
indorsed immediately after the making, and the principal was
dead at the time, none of the parties being aware of his death, it
was held that a demand was needless. (y)

(/) See Cromwell v. Hynson, 2 Camp. 596, supra, p. 365, note d; Philips v. Ast-
linjr, 2 Taunt. 206, supra, p. 361, note r; Draper v. Clemens, 4 Misso. 52. In Bux-
ton V. Jones, 1 Man. & G. 83, 1 Scott. N. R. 19, deeided since the Stat. 1 & 2 Geo.
IV., a bill was addressed to the drawee, at tlie number of his house and the name
of the street. It was accepted generally. The holder presented the bill at the door
of the house to an inmate who was coming out. The acccjitor had roTiiovcd, and the
inmate told the holder ^o. The holder left a card, containing notice of the maturity
of the bill, with the inmate. The occupier of the house knew where tlic acceptor had
removed. Held .'iufficient to charge an indorser. In Brancii Bank v. Hodges, 17 Ala.
42, the presentment was made to the book-keeper of the acceptor, at his counting-
room, the acceptor being absent. The drawer was held. In Moodie v. Morrall, 1
Const. R. 367, presentment was made to tiie wife of the maker, as she informed the no-
tary that her husband was out of town. Held sufTicient. Presentment at the acceptor's
dwelling-house is sulHcient, there being no one there to answer for him, and no pro-
vision having been made for payment at three o'clock, P. M. Stivers v. Prentice,
3 B. Mon. 461. See Bellievre v. Bird, 16 Mart. La. 186; Ilamer r. John.son, 16 La.
242 ; Oakey v. Beauvais, 1 1 id. 487.

((/) Infra, p. 427, note.

(A) Supra, p. .365, note e.

(i) Infra, ]>. 427, note.

(j) Burrill v. Smith, 7 Pick. 291.

CH. XI.] IN WHAT JIANXI:R DEMAND SHOULD BE MADE. 3G7

SECTION lY.

IN WHAT MANNER DEMAND SHOULD BE MADE.

The demand should be for an absolute, immediate payment in
cash. This would be presumed to be the meaning of a simple
demand of " payment." But if the holder saw fit to accept any-
thing else in payment but cash, this would discharge the subse-
quent parties as effectually as a regular payment in money. (/t)

The party making the demand should have the bill or note
with him, and should exhibit it ; because, as has already been
seen, the payer has a right to require its delivery up to Iiim be-
fore ho pays, and may insist that the holder should produce it ;
and the latter must be in a condition to do so if required. (/) If
his ability to present it be perfect, and it is, in fact, near and ac-
cessible, it may not be absolutely necessary that he should have
it in his immediate personal custody, though this is proper. (;«)

(k) Infra, chapter on Payment of a Bill or Note.

(/) Supra, p. 230, note x. In Musson v. Lake, 4 How. 262, it was held that a pro-
test, stating only that payment was demanded, is inadmissible to prove a presentment,
because it should set forth that the notary had the bills in his possession at the time ;
Woodbury and McLean, JJ. dissenting, on the ground that, as a notary cannot make a
legal demand without presenting the bill, it is a fair inference that he had it with him at
the time of the presentment. Contra, Nott v. Beard, 16 La. 308; Deyraud v. Banks,
id. 461. In Bank of Vergennes v. Cameron, 7 Barb. 143, the statement in the protest
was, that the notary went with the draft to the bank, and demanded payment. Held
that this was sufficient. Harris, J. : "In this case the notary states that he went with the
draft to the bank and demanded payment. The language, I think, may fairly be
deemed equivalent to saying that, when he made the demand, he had the draft with
him, and was prepared, in case of payment, to surrender it to the person who should
honor the draft on behalf of the acceptor. So far therefore as it i-elates to the present-
ment of thp draft and the demand of payment, I am inclined to hold that the evi-
dence furnished by the notarial certificate is sufficient." In Draper v. Clemens, 4
Misso. 52, a demand was held insufficient because it did not appear that the bill wa.s
produced. In Freeman v. Boynton, 7 Mass. 483, it appeared that the party demanding
payment did not have the bill with him. Held insufficient. See Smith v. Gibbs, 2
Smedes & M. 479; Farmers' Bank v. Duvall, 7 Gill & J. 78.

So the indorser, upon offi^ring to pay, has a right to insist on the delivery of the
note as a condition of such payment ; and a tender of the amount due is not rendered
invalid by being made on such a condition, contrary to the general rule that a tender
must be unconditional. Wilder v. Seelye, 8 Barb. 408.

(m) In Tredick v. Wendell, 1 N. H. 80, the note was in a bank within a few rods
of the maker's house, and the maker was informed, by a letter from the cashier, where
the note was, and requesting payment. Held sufficient to charge an indorser.

368 NOTES AND BILLS. [CH. XL

If ou presentment the note is not asked for, and on this account
it is not actually exliil)ited, but its identity is perfectly known
to the party on whom the demand is made, there is no reason
why the non-exhibition of it should vitiate the demand ; (n) and
indeed, the better rule, as drawn from the autliorities, would seem
to be, that in order to destroy the validity of the demand, on the
ground that the note was not exhibited, the maker or acceptor
should, cither expressly or by implication, refuse to pay on that
account ; otherwise, he will be deemed to have waived his right
to require that the note should be shown to him.

If the note or bill is lost, it is sufficient if the demand be made
with a presentment of a true copy of the lost paper ; (o) and
where it is necessary to tender a bond of indemnity to the maker
before he is liable, such a bond should also be presented.

But this rule respecting the necessity of presenting the note is
subject to other exceptions. Thus, in Massachusetts, it has been
the custom for a bank which becomes the holder of negotiable
paper to issue a notice to the promisor a few days before matu-
rity, informing him that the paper is in the bank, setting forth
the date when it will be payable, and requesting him to come
there and pay it. It is distinctly held in that State, that such
previous notice to the promisor, with neglect on his part to pay
the note at the bank, constitutes a conventional demand and re-
fusal, which amounts to a dishonor of the note, and that it is not
the delivery of the previous notice to the promisor which consti-
tutes the presentment, but that it is the failure to pay at the bank,
during bank hours on the last day of grace, whicli amounts to
dishonor. (/>) Indeed, this custom is said to have become so gcn-

(h) Lofkwoocl V. Crawford, 18 Conn. 361, an action against an indorscr of a note
whic'ii had been partially paid by the promisor. Church, C. J. : " It is true that it docs
not directly appear that the payee presented the note in form, and demanded pay-
ment ; but as he had not, at that time, transferred it, the makers might well presume it
continued in liis possession ready to be delivered upon payment. When called upon
for the balance, tlicy di<l not inquire for it, nor refuse to pay l)ecanse the note was not
shown to them ; on the contrary, they said that they could not conveniently pay any
mf)rc then, and requested the payee to draw upon them at a future time; thereby waiv-
ing, as they had a right to do, a more formal demand."

(o) Hinsdale v. Miles, 5 Conn. 3.31 ; I'oscy ;,•. Decatur Bank, 12 Ala. 802.

(p) Sh'iw, C. J., Mechanics' Bank v. Merchants' Bank, 6 Met. 13, 23. The point was
first decided in Jones v. Fales, 4 Mass. 24.5, where the note was not made payable at a
bank, but the defendant, an indorscr, was found to have been acquainted with the usage,
and this fact Avas held to be admissible evidence of an agreement on his part to be bound

CII. XI.] IN WHAT MANNER DKMANI) SHOULD 1!K .MADE. 369

oral and universal, and it would seem, perhaps, to have bccoma
so far incorporated into the general law of that State, that every
one who incurs the liahiUty of maker and indorscr may be suj)-
posed to have contracted with reference to it, and knowledge on
his part may bo presumed. (7) p]vidonco of such a mode of de-

thereby, tliough it did not appear that he had ever conformed to the usage. Widg-
ery v. Munroe, 6 id. 449, wiicre the defendant, an iiidonser, liad been accustomed to
leave his notes in the bank for collection, and had conformed to the usage. Lincoln
& Kcnneheck Bank v. Page, 9 id. 155 ; Lincoln & Keiinelicck Bank v. Haniinatt, id.
159, in which cases the note was made ])ayal)le at the bank. In Weld v. Gorham, 10
id. .366, the note was not payable at a bank, and it was left to the jury to find whether
the maker and the indorser, the defendant, were conversant of the usage, and they
were directed, that the fact that the maker and indorser were directors of the bank,
and the long continuance of the custom, were presumptive evidence of knowledge. In
Blanchard v. Hilliard, II id. 85, the defendant, an indorser, was proved to have knowl-
edge of the custom. In State Bank v. Hurd, 12 id. 172, the note was payaltlc at a
bank, and the notice, by direction of the maker and indorser, was left at a store of a
third ]>arty. In Peircc v. Butler, 14 id. 30.3, it is said that evidence of the custom is
sufficient to bind the indorser, if he had been conversant of the usage. In Whitwell
V. Johnson, 17 Mass. 449, the note was not payable at a bank, the maker knew the
custom, but tliere was no evidence that the defendant, an indorser, was acquainted with
it. Held sufficient. Parker, C. J. : " If the indorscr has seasonable notice of the fact
of non-payment when the note is due, it must be immaterial to him in what form the
demand upon the maker was made. If there had been no demand, he would not be
liable, because it does not appear but that the note would have been paid, if demanded ;
and it is within the terms of the stipulation that such demand shall be made. But if
there has been such a demand as the maker was bound by, so that he had no right to
refuse payment, it is not easj- to see how it conccras the indorscr whether the legal
forms have been complied with, or waived by the promisor. The case of State Bank
?». Hurd, 12 Mass. 172, was decided upon this principle, and the only difference be-
tween that case and this under consideration is, that in that, the note was payable at
the bank, and in this, it was not. But the circumstance was not essential, as it would
not follow that Hurd, the indorser, was conversant of the usage of the bank merely
because he indorsed a note payable there." These decisions are affirmed in City Bank
V. Cutter, 3 Pick. 414 ; Boston Bank v. Hodges, 9 id. 420 ; North Bank v. Abbot, 13
id. 465 ; Shove v Wiley, 18 id. 558, where the evidence of knowledge was that the in-
dorser was frequently at the bank transacting business, and frequently paid notes
there ; Central Bank v. Davis, 19 id 373 ; Grand Bank v. Blanchard, 23 id. 305.

(7) See Grand Bank v. Blanchard, 23 Pick. 305. Shair, C. J. said : " But the cus-
tom of the banks of Massachusetts of sending a notice to the maker of a note to come
to the bank and pay it, and treating his neglect to do so during bank hours on the last
day of grace as a dishonor, .... has become so universal, and continued so long, that it
may well be doubted whether it ought not now to be treated as one of those customs of
merchants of which the law will take notice, so that every man who is sufficiently a
man of business to indorse a note may be presumed to be acquainted with it and as-
sent to it, at least until the contrary is expressly shown. It is to be recollected that the
rules respecting presentment, demand, and dishonor of bills of exchange and promis-
sory notes, and indeed the lex mercatoria generally, originated in the custom of mer-
chants, which custom was a matter of fact to be proved by the party relying on it, and

Vol. I.— Y

370 NOTES AND BILLS. [CH. XL

maiid may be given in support of an averment of presentment to
the maker, (r)

This custom has also been sanctioned by judicial decision in
Maine ; (s) but it has been doubted, perhaps, in Maryland, (z") and
in Xew Hampshire ; {u) at least the courts of these States do not

to be determined by the jury. But when a custom has been definitely settled by judi-
cial decisions, it is taken notice of by courts as part of the law of the land, and need
not be proved as a fact in each case."

(r) City Bank v. Cutter, 3 Pick. 414 ; Boston Bank v. Hodges, 9 id. 420; North
Bank v. Abbot, 13 id. 466, where Shaw, C. J- said : " The principle of allowi.ng some
latitude in the mode of proof, where a presentment and demaml are averred in the dec-
laration, seems to be this : the plaintift' does not give in evidence matter strictly in ex-
cuse, but a qualified ]iresentm(;nt and demand, or acts which, in tlicir legal effect, and
by the custom of merchants, are deemed equivalent to demand."

(s) Gallagher v. Roberts, 2 Fairf. 489 ; Maine Bank v. Smith, 18 Maine, 99.

(t) Farmers' Bank v. Uuvall, 7 Gill & J 78. One of the head notes is as follows :
" The practice of banks to give notice to the makers of notes of the time of their matu-
rity, and place of deposit for collection, cannot, where such notice has been delivered, bo
substitntcd for a demand of payment so as to affect the indorser." This appears to be
a broader statement than is warranted by the case. All that is decided with regard to
the usage is that the evidence in the case did not prove it.

(u) Moore v. Waitt, 13 N. H. 415. In this case, the drawer, acceptor, and payee
resided in different towns. When the payee received the bill, he told the drawer that
he should get the bill discounted at the bank. Instead of doing this, he left it at t!ie
bank for collection. The custom of the bank, and of the banks of several adjoining
towns, was given in evidence, bul it did not appear that the drawer and acceptor knew
of the custom. The suit was brought against the drawer, who defended on the ground
that there had not been a sufficient presentment. Held, a good defence. Parker, (\
J. : " It ai)pears that the bill was left in the Framingham Bank for collection ; and the
j)laintiff relies upon a usage of that bank to notify the acceptor and drawer through the
mail, on the last day of grace, as an excuse for a neglect to present the bill to the
acceptors for payment. But we find nothing in the case to charge the defendant upon
any usages of the Framingham Bank. The payee, when he received the bill, told the
defendant that he should get it discounted at that bank. This he did not do, for a suffi-
cient reason, but instead thereof left it in the bank for collection. The utmost effect
that could be given to this would be as a notice to the defendant that the bill would be
in that bank at its maturity. Such notice would in no w.ay extend or vary his liability.
The bill was not dr.awn j)ayable at that bank ; nor would the notice, when the payee
received it, that it would be left there, have any operation to bind the acceptors, or the
defendant, to seek it .it that place. Nor could the notice to the acceptors, according to
the custom of the bank, when the bill became due, impose any greater duty iqion them
than existed when they first accepted the bill, or charge the defendant for their n<"glect
to make payment at that place. It does not appear that the acceptors had any notice
that the bill was there until after the last day of grace. The defendant had no agency
in procuring the bill to be left there. Nor does it appear that he had any knowledge of
the usagt's of the bank. If he had had such knowledge, that fact would not have
operated as a waiver of his right to require that a demand should be made ujion the ac-
ceptors, according to the general rules of the law, before payment was sought of him'

In Leavitt r. Simes, 3 N. H. 14, liiclidrdsou, C. J said : " The uvagc of the banks

CH. XI.] IN WHAT MANNER DEMAND SHOULD BE MADE. 371

seem disposed to give it such effect as is allowed in Massachu-
setts. Even in Massachusetts it is a prevailing and very general,
if not universal usage, for the hanks to hand the dishonored
note to a notary on the day that it matures and remains unpaid,
and the notary makes the same demand that he would if no pre-
vious notice had been given.

Another exception is, when the maker calls ui)on the holder at
his place of business the day the note falls due, and declares his
inability to pay it, and requests the holder to give notice to the
indorser. In such case it has been held that there was a demand
sufficient to bind the latter, though the note was not shown. (y)
Tins may, however, be considered rather as a waiver of the
maker's right to insist upon its exhibition.

Another exception arises in the case of notes and bills payable
at a specified place. Thus, when a promisor makes a note paya-
ble at his banker's, and the banker himself becomes the holder
of the note, it is held to be a sufficient presentment to charge
an indorser, if the banker turns to his books and examines the
promisor's account ; and a sufficient refusal, to find that there
is no balance due the latter from the former, (i^;) It will also be
seen hereafter, that, when a note or bill is payable at a specified
place, it is sufficient if it is there at maturity, ready to be given
up, on payment, to any party calling for and authorized to pay
it.(.'i;) It is not easy to see how a sufficient demand can be made
with safety through the post-office. (v/) A letter addressed to the

is found, but it is not found that the defendant (an indorser) had ever conformed to the
us.a^re, or even that he was conusant of it. There is then nothing from which his

assent to waive the want of a regular demand can be inferred We are of opinion,

that it is not enough in this case to show the usage, and that the defendant was conusant
of it. We think his assent to the usage is not to be inferred from the simple fact that he
had knowledge of it. If it can be shown that he had conformed to the usage, it may
deserve consideration whether his assent to it might not be inferred from his conduct.
On tlie other hand, it will deserve very serious consideration, whether the admission of
testimony to show the usage, and his assent to it, is not to admit parol evidence to
vary the terms of a written contract."

(v) Gilbert v. Dennis, 3 Met. 49.5.

{w) Saunderson v. Judge, 2 H. Bl. 509.

(x) Jnfra, p. 434.

(y) In the following cases such a demand was held insufficient. Halle v. Howell,
Harper, 426 ; Gillespie v. Hanuahan, 4 McCord, 503 ; Stuckert v. Anderson, 3 Whart.
116. In Duke of Norfolk v. Howard, 2 Show. 235, an action by the payee against the
maker of a note payable within three months after the plaintiff should demand the
same, the plaintiff's attorney "delivered a demand in writing at the defendant's
house to his maid, by whom he sent it up to the defendant, he being sick and not

3712 NOTES AND BILLS. [CH. XI.

maker 'it his residence, stating that the note is due and unpaid,
and demanding payment, even if it add the place of the note,
would seem, on general principles, not to be a good demand, un-
less there were some usage justifying it. If the note were en-
closed in the letter, and an immediate return made of the note,
with an answer of refusal, this might hold the subsequent parties.
But if the payee returned the note, and made no answer, or even
retained it and refused, we should doubt whether any notice to
subsequent parties could be predicated on such a refusal which
would be sufficient to hold them.

A demand on the maker in the street is not, in general, suffi-
cient ; but it may be doubted whether it will not suffice to bind
an indorser, unless objection be made to the place ; or at least
slight acts on the part of the maker would, we think, be con-
strued as a waiver of his right to object on that account. (s) It
has been held, that a demand on the maker by a sheriff serving a
writ upon him, is not a demand upon which notice to an indorser
can be founded ; (a) though it will certainly be sufficient if the
sheriff have the note in one hand and tlie writ in the other, and
if, on refusal to pay the note, the sheriff immediately serve the
writ. (6)

to be spoken with ; the maid brought down word she had delivered it to her master.
Held, no good evidence to maintain the action, for the demand ought to he personal ;
and delivery of a demand in writing to the servant at the house is no good demand."
Sed qucEre.

(z) King V. HolmeSj 11 Penn. State, 4.'j6. Rof/ers, J. said : " The court correctly in-
structed the jury, that a demand in the street of an acceptor of a bill of exchange is not a
sufficient demand. That when a bill is payable generally, and not at a particular place,
the demand must be at the place of business of the acceptor. But if the notary, on his
way to the place of business of the acceptor, meets him in the street, and informs him
of his bu.siness, and where he is going, and the acceptor offers, if he will go to his
place of business, to give him only a check on a broker, it is not necessary for the
notary to proceed further. The demand at the place of business is waived by the
]iayor or acceptor. It is, in effect, a refusal to pay, for an offer to pay by a check on a
broker, in legal contemplation, is nothing; it is not such a tender as the notary would
be justified in accepting. In this case the accc])tor had no cause of complaint ; for the
notary offered to receive a check on one of the banks in payment of the bill." Sec Fall
Kiver Union Bank v. Willard, 5 Met. 216, cited sujira, page 348, note ;/.

('/) Branch Bank v. Gaffney, 9 Ala. 15.3. It does not appear in the case whether
the officer had the note with him or not, but the reason stated by Collier, C. J. is : " The
writ or summons i)y which a suit is commenced docs not invest the officer to whom it
IS addressed with authority to receive the money. It is not, in form, a request to pay
it, nor docs it suppose that the defendant therein will pay it, otherwise than by legal
coercion." If the rc.ison was that the sheriff did not have the note with him, the case
is sound ; otherwise, it would seem that the decision could nut be sustained.

{b) Seuver u. Lincoln, 21 Tick. 267. Sec the cases cited supra, p. 359, note e

CU. XI.] AT WHAT TIME DEMAND SHOULD BE MADE. 378

SECTION Y.

AT WHAT TIME DEMAND SHOULD BE MADE.

As to the time when demand should be made, the rule is, that
in order to charge a drawer or indorscr, it must be made on the
day of the maturity of the note or bill.(c) If made before, (^/)

(c) " The general rule is, that it must be presented on the very day on which, by
law, it becomes due ; and that, unless the presentment be so made, it is a fatal objec-
tion to any right of recovery against the indorscr. But although this is the general
rule, it is not a universal one, and prevails only under the qualification, which is really a
part of the rule itself, that there is no negligence or want of reasonable diligence in
not making such presentment. The whole rule, therefore, more properly stated, is, that
presentment must be on the day on which tlic bill becomes due, unless it is not in the
power of the holder, by the use of reiu-^onable diligence, so to present it." Sioirs, J.,
Windliam Bank v. Norton, 22 Conn. 213. " A demand upon the maker of a note, in
order to charge an indorser, must not only be made, but it must be satisfactorily proved
to have been made, on the day when the note falls due, provided there be no circum-
stances dispensing with tlie necessity of such demand The witness relied upon

to prove the time of the demand, is unable to state it. The writing which he signed,
without date, affords him no aid by which he could be enabled to fix the time." Whit-
man, C. J., Kobinson v. Blen, 20 Maine, 109. In this case a declaration by the holder
to the indorser, that he had called on the maker the day the note became due, and that
the maker refused, and the fact that the indorser did not deny it, were relied on as evi-
dence to prove a demand at maturity. But the last facts were held to be no evidence,
and the demand not satisfactorily proved.

((/) Brown v. Harraden, 4 T. R. 148 ; WifTcn v. Roberts, 1 Esp. 261 ; Henry v.
Jones, 8 Mass. 453 ; Leavitt v. Simes, 3 N. H. 14 ; Howe v. Bradley, 19 Maine, 31 ;
Jackson v. Newton, 8 Watts, 401 ; Farmers' Bank v. Duvall, 7 Gill & J. 78 ; Edgar v.
Greer, 8 Clarke, la. 394. In Griffin v. Goff, 12 Johns. 423, Spencer, J. said : " In the
present case the demand of payment, being made at the house of the drawer before the
note was payable, is as no demand ; it was a perfectly nugatory act ; payment might
have been demanded with as much propriety on the day the note was given." One of
the chief objections which have been urged against the usage spoken of above, as ex-
isting in Ma-ssachusetts with reference to demand, has been, that the notice is sent out
prior to maturity. But the demand is not considered as made at the time when the
notice is given. See the remarks of Shaw, C. J., cited supra, p. 369, note q, and the
same eminent judge, speaking of this usage, says, in Mechanics' Bank v. Merchants'
Bank, 6 Met. 13 : "Undoubtedly parties to negotiable notes may waive demand and
notice, and, as a modification of that power, may agree to qualified modes of demand
and' notice ; and a compliance on the part of the holders with such qualified modes will
be sufficient to bind the indorsers. But we are not aware of a case in which, under such
Agreement, express or tacit, in regard to the mode of presentment, demand, and notice,
the time of payment can be accelerated, or, where any notice to indorsers is required,
that such notice can be given before the actual dishonor of the note. Any agreement
"vhich would accelerate the time of legal payment would be a change of the contract.

VOL I 32

874 NOTES AND BILLS. [CH. XI.

or 'xher .(p.) it is insufficient for that purpose, except where the
demand is made subsequent to that time, under circumstances
which the law recognizes as a valid excuse for a delay in making
the demand. (/)

The liability of the maker or acceptor is unaffected by the
question whether the demand was made after the day of matu-
rity or not. A demand before the note or bill falls due is una-
vailing,(jg') but a demand on either of them at any time subse-
quent to that date, provided it be witliin the period recognized by
the Statute of Limitations, is sufficient. (/i)

If a note is payable by instalments, there should be a demand
of each instalment when it falls due.(z) But neglect of demand
or notice on any one instalment would, as we think, discharge
the indorser for that instalment, and only for that. If a note
is payable by instalments, with the condition that, in default of
payment of any one, the whole amount of the note shall become
due, it would seem that, in order to hold the indorser for the
amount of the bill unpaid, demand should be made for that
amount, on default of payment of any one instalment ; and it
might be held, perhaps, that a neglect to demand any instalment
would discharge an indorser, both for that and all subsequent
ones ; {j) we should have, however, some doubt as to this. If a
note or bill is payable on demand, it is always mature, and may
at any time be demanded. As between the maker and the
holder, so far as maintaining an action on the note is concei'Jied,

and must be made in such form and on sucli consideration as would be suflicient to
constitute a substantive contract."

(e) Niciioison v. Gouthit, 2 H. Bl. G09 ; Woodbridge v. Brigham, 12 Mass. 403 ;
Piatt r. Eads, 1 Blackf. 81 ; Fulton Co. ;;. Wriglit, 12 La. 38G ; Grant v. Long, id.
402 ; iMcMurchey v. Robinson, 10 Ohio, 496 ; Eklridge v. Rogers, Minor, 392.

(/) As to what is a sufficient excuse, see infra, j)p. 442-465.

(7) Supra, p. 373, note d.

(h) Anderson v. Cleveland, cited 13 East, 430, note c.

(?) In Oridge v. Sherborne, 11 M. & W. 374, the defendant, an indorser of a note
payable in seven instalments, in an action against him for the fourtli instalment, ob-
jected that the presentment to the maker had been three days too late, grace having
been allowed. It was held that such a note was within the Stat. 3 & 4 Anne, c. 9,
and that the presentment was in time ; consequently the indorser was held. The im-
plicatif)!! from this case is, that, if presentment liad been made cither before or after that
instiihnciit fell due, the indorser would have been discharged. It will be seen hereafter,
that assumjjsit will lie by an indonsce for each instalment as it falls d.ic, while debt will
not.

(;■) Sec Carlon r. Kcnealy, 12 M. & W. 139.

CH. XI.] AT WHAT TIME DEMAND SHOULD BE MADE. 37A

no other demand than serving the writ is necessary ; {k) nor
need any demand be averred in the declaration ; (l) nor, if it be
averred, need it be proved. (??i) But if the note is payable on
demand, it may bo necessary for iho holder, if he wishes to charge
the maker with interest from any date prior to that of the writ, to
prove a demand at that date.(w) So far as the Statute of Limi-
tations is concerned, the cause of action is considered to have
accrued at the time of the date of a bill or note on demand, and
tlie statute commences to run from that time.(o)

The question as to the time witliin which a note or bill on de-
mand must be presented, in order to affect other parties by its
dishonor, depends upon the time when it is to be considered as
overdue. Hence arise two classes of cases with reference to this
point. One, where the note or bill is overdue when payment
is demanded, and therefore the indorser or drawer is discharged.
In this case, in order to determine the question as to the liability
of an indorser or a drawer, an examination is necessary into the
fact whether presentment is made at a time when the note or bill
became mature, or subsequent to that time.{p)

The other class of cases relates to the question whether, at tho
time when the note is transferred to a third party by indorsement
or otherwise, such a time has not elapsed from the date of the

{Ic) Rumball v. Ball, 10 Mod. 38; Biirnliam v. Allen, 1 Gray, 496. "As it respects
the promii^or himself, he is answerable immediately to the promisee or indorsee ; and he
may be sued the instant he has given his signature, even without a previous demand."
Parker, C. J , Field v. Nickerson, 1.3 Mass. 131 ; Dougerty v. Western Bank, 13 Ga.
287 ; Woodward v. Drennan, 3 Brev. 189 : Gammer ?;. Harrison, 2 McCord, 246.

(/) Kumball v. Ball, 10- Mod. 38. "An action of debt upon a note to this effect : ' I
acknowledge myself indebted, &c., which I promise to pay upon demand.' It was moved,
in arrest of judgment, that, though upon a note acknowledging a debt it was not ne-
cessary to allege a demand, yet, where it is part of the agreement, there a demand ia
necessary. But the court was of another opinion, for it is a debt in presenti, and the
words ' promise to pay ' import no more than that I am ready to pay the money at any
time, and shall not restrain or qualify the other words, this being no debt arising upon
the performance of a certain condition, but a debt plainly precedent to the demand.
Besides, supposing a demtind necessary, the action itself, perhaps, is a demand."

(/«) Burniiam v. Allen, 1 Gray, 496.

(n) Burnham v. Allen, 1 Gray, 496, 499. See infra, chapter on Interest.

(o) Norton v. Ellam, 2 M. & W. 461 ; Woodward i-. Drennan, 3 Brev. 189; Gam-
mer V. Harrison, 2 McCord, 246 ; Smith v. Bythewood, Rice, 245 ; Kuff v. Bull, 7 Har-
-\s & J. 14. Infra, Vol. II. p. 642.

{//) Field V. Nickerson, 13 Mass. 131, Parker, C. J. ; and cases infra.

37(3 NOTES AND BILLS. [CH. XL

noie that it must be considered as overdue, and consequently the
maker is entitled to equitable defences, of which he would be de-
prived had it not been transferred before it was due.(</)

The law with regard to reasonableness of time would appear
to be the same in both classes of cases, and is so held in the
United States ; (r) at least, we are not aware of a case in this
country where a distinction has been taken in that respect. But
it has been held in England, that a note on demand is not to be
considered as overdue so as to let in these equities by the mere
lapse of time.(s)

(q) See sujira, p. 2G4, note y.

(r) In Field v. Nickcrson, 13 Mass. 131, the two classes were ])laccd on the same
footing hy Parker, C. J. So in Siee v. Cunnin<^ham, 1 Cowen, 397.

(s) There was an early case, Banks v. Colwell, cited 3 T. R. 81, wiicrc Buller, J.
allowed the defendant to prove that the note was indorsed to the plaintiff" a year and a
half after date, and also to impeach the consideration ; and the plaintitl" was nonsuited.
But in Barou-;h v. White, 4 B. & C. 325, where the question was with regard to the admis-
sion of evidence tending to sustain a want of consideration, the note was payable with
interest, and the length of time that had elapsed docs not appear. Buyhi/, J., referring
to the ease of Banks v. Colwell, said: " We are not, however, acquainted with all the
circumstances of that case ; payment might have been demanded before the indorse-
ment, and indeed it is stated that several payments had been made on account." But
these criticisms arc hardly just. The case was clearly stated in the argument ; was ap-
proved by Ashhurst, J., without any objection as to the fact that the note was not overdue ;
and as Buller, J. was himself on the bench at the time it was cited, he would surely have
corrected it had it been misstated, and the case, having been decided only about nine
months before, must have been fresh in his recollection. It will be seen also that
Brown r. Davies, 3 T. 11. 80, appears to have been decided on the authority of Banks
V. Colwell. As to the fact " that payment might have been demanded before the iu-
dorsement," that would have been immaterial had the note not been overdue, because
it is stated that " no privity was brought home to the plaintiff" ; as it is clear that a
note indorsed over by the payee, after an insufficient demand, but before maturity, to
a third party without knowledge of the fact, is a valid note in the hands of the latter.
The same will apply to the fact, " that several payments had been made on ac-
count." Bai/let/, J. laid some stress on the fact, that the note was payable with in-
terest. Ilohoyd and Lillledale, JJ. said nothing about this in tlie rei)ort in 4 B. & C.
32.5, but mention it in 6 Dow. & K. 379 In Brooks v. Mitchell, 9 M & W. 1.5, the
note, ])ayable with interest, was dated Dec. 24, 1824, indorsed fn-st in March 12, 1836,
and again to the defendant on Jan. IG, 1838. This was an action of trover by the
assignees of the first indorser, who contended, inasmuch as the note was overdue at the
time of the first indorsement, that they could prove that the indorser had no right to
transfer it. No interest had been paid or demanded for four years. Hut Piirke, B.
said: " I cannot assent to the arguments urged on behalf of the jWaintifVs. If a pro-
missory note, payable on demand, is, after a certain time, to be treated as overdue,
although i)ayincnt has not been demanded, it is no longer a negotiable instrument.
But a |tromis>ory note payable on demand is intended to be a continuing security."
There do not appear to have been any decisions in ICngland with reference to the first
class of cases. A (juestion has arisen with reference to drafts on a baidier inc* ^cld-

en. XI.] AT WHAT TIME DEMAND SHOULD BE MADE. 377

The rule on this point would also seem to be the same as that
with reference to presentment for acceptance of bills payable after
sight,(^) which we have already considered. (m) This rule is, that
presentment must be made within a reasonable time after the in-
dorsement in the case of bills, and after making in the case of
notes, and that what constitutes such reasonableness of time can-
not be determined by any fixed and exact rules, but must depend
upon the particular circumstances of each case.(z;) In all these
cases, whether the question is one for the court or the jury to de-
termine is perhaps unsettled ; (w) the prevailing doctrine being,

smith's notes, where they have been taken in payment, and the drawer has failed while
the payee had them in his possession. Tiiis will be treated subsequently. See infra,
chapters on Payment aivd Checks. Chitty, p. 252, 10th ed., London, says that they
" must be presented within a reasonable time after they have been received " ; and a^^ain,
p. 261 : " Instruments wiiich are expressed to be j)ayablc on demand, as in the ease of
bankers' notes and cheeks, are payable instantly on presentment, and such instruments
must be presented for payment within a reasonable time after the receipt of them, usu-
ally the next day." Byles. p. 123, says: "Bills and notes payable on demand, and
checks, must be presented within a reasonable time" ; — and on p. 164 : " It is con-
ceived that a common bill of exchange ought, if the parties live in the same place, to be
presented the next day after the payee has received it." This is hardly consistent with
the remarks of the judges in the cases cited sitpj-a, who almost all speak of a note on de-
mand as intended to be "a continuing security." No cases are cited in support of the
proposition, and those from which the opinion seems to have been formed are the cases
of checks and banker's notes, where the drawer has failed, and the question has been,
whether a party who received them in payment, or the party giving them as payment,
should bear the loss ; which is obviously a different question.

(t) Sue Field v. Nickenson, 13 Mass. 131 ; Thurston v. M'Kown, 6 id. 428 ; Aymar
I'. Beers, 7 Cowen, 705 ; Brenzer v. Wightman, 7 Watts & S. 264.

(u) Siiiirn, p. 338, note c.

(v) Field ('. Nickcrson, 13 Mass. 131 ; Sylvester v. Crapo, 15 Pick. 92 ; Ranger v,
(Jary, 1 Met. 369 ; Lo.see v. Dunkin, 7 Johns. 70 ; Vreeland v. Hyde, 2 Hall, 429 ; Bunk
of Utic.i e'. Smedes, 3 Cowen, 662; Castle v. Candee, 16 Conn. 223; Lockwood v.
Crawford, 18 id 361 ; Emerson v. Crocker, 5 N. H. 159 ; Carlton v. Bailey, 7 F"oster,
•2.30; Cromwell v. Arrott, 1 S. & R. 180; M'Kinney ?;. Crawford, 8 id. 351 ; Bren-
zer V. Wightman, 7 Watts & S. 264 ; Martin v. Winslow, 2 Mason, 241. In Seaver v.
Lincoln, 21 Pick. 267, S/iaw, C. J. said : " One of the most difficult questions presented
for the decision of a court of law is, what shall be deemed a reasonable time within
which to demand payment of the maker of a note payable on demand, in order to
charge the indorser. It depends upon so many circumstances to determine what is rea-
sonable time in a particular case, that one decision goes but little way in establishing
a precedent for another."

{w) In Field i,-. Nickcrson, 13 Mass. 131, the question seems to have been decided
by the jury. Parker, C. J. : " Was this demand made in a reasonable time ? The
jury have said, No ; and they were perfectly justified in returning that answer." In
Manwariujj' v. Harrison, 1 Stra. 507, the case arose on a goldsmith's note, whether a
payor or a payee should bear the loss. Pratt, C. J. "told the jury that giving the note
32*

3T8 NOTES AND BILLS. [CH. XI.

that, where there is no dispute about the facts, the court will de-
cide it;(a;) and where the facts are not agreed upon, it is a
mixed question of law and fact, and the court will instruct the

is not immediate payment, unless the receiver does something to make it so, by neglect-
ing to receive it in a reasonable time He left it to them whetlier there had been

any neglect, and observed that the note was payable to the defendant, wlio had kept
it eleven days, and probably would not liave demanded it sooner than the plaintitf did,
it appearing the goldsmiths were in full credit all the while. The jury desired they
might find it specially, and leave it to the court whether there was a reasonable time,
but the Chief Justice told them they were judges of that ; whereupon they found for
the defendant; and declared it as their opinion, that a person who did not demand a
goldsmith's note in two days took the credit on himself" In Hankey r. Trotman, I
W. Bl. 1, a case on a check, the question was left to the jury. In Lancaster Bank r.
Woodward, 18 Pcnn. State, 357, 362, a check case. Woodward, J. said that, as to what
is reasonable time, " Other authorities treat it as a question of fact, and this is periiaps
the better opinion as to ordinary cases ; but the delay in this case was so great, and
the conduct of the bank was so grossly negligent entirely, that wc think the learned
judge was right in giving the jury the instructions he did."

In Gray v. Bell, 2 Rich. 67, 3 id. 71, reasonable time in making a demand of a nolo
indorsed when overdue was held always to be a question of fact for a jury. See also
Chadwick v. Jeffers, 1 id. 397 ; Brock v. Thompson, 1 Bailey, 322 ; Benton v. Gibson,

1 Hill, S. Car. 56 ; Eccles v. Ballard, 2 McCord, 388 ; Hall v. Smith, 1 Bay, 330 ;
Branch Bank v. GatTuey, 9 Ala. 153. In Sice v. Cunningham, 1 Cowen, 397, it seems
to have been treated as a matter of law. The judge told the jury, that " lie had no doubt
that five months and a half, the time given on this note, was an unreasonable length of
time," but he told them to consider this in connection with the other facts in the case,
&c. The charge was held incorrect. In Ranger v. Cary, 1 Met. 369, the judge charged
the jury, that unless the note had been transferred at least one month from date, it could
not be considered as overdue. Held correct. In Sylvester r. Crapo, 15 Pick. 92,
Shaw, C. J. said : " What is reasonable time is a question of law upon the facts
proved." Byles (p. 163) says, it "seems to be a question of law." The cases cited
were decided with respect to reasonableness of tinie in giving notice, but it is con-
ceived that there may well be a difference in the law between the two classes of
cases. See infra. TJie cases of Medcalf r. Hall, 3 Doug. 113, and Appleton v.
Sweetapple, id. 137, arose on the question whetlier the payee made a banker's note
received in payment his own, by not ])resenting in sufficient time. The payee did not
present it till after banking liours on the same day he received it. Bullcr, J. thought
there should be some general rule in sucli cases, and it should be that iircst'ntnient was
sufficient if made the next day. Lord j\fansjjeld thought " the next ilay should be the rule
if it stood clear of any usage, but he thought that clear usage might vary the rule." In
these cases there appears to have been a struggle between the court and the jury. The
jury f(jund for the defendant five times, and on a motion for a sixth trial, tlie plaintiff
was refused, on the ground that he ought to have objected to the introduction of evi-
dence as to a usage to present the same day. Cliitty, Bills, p. 262, 10th ed., London,
says it is now settled to l)e, in general, a question of law. But the cases cited are
mostly on the question of notice, and the others do not support tlic proposition. See
suprn, chap. 8, p. 268, note h.

(r) Supra, p. 269, note i. Furinan r. Haskin, 2 Caincs, 369; Vrccland v. Ilyde,

2 Hall, 429 ; Kiting v. Brinkerhoff, id. 459.

CH. XI.] AT WHAT TIME DExMAND SHOULD BE MADE. 379

jury as the circumstances of each case require, and the jury will
determine the whole question. (y)

One of the circumstances which have been considered as hav-
ing an important bearing upon this question is, the fact that the
note is payable with interest ; the reason being, that neither the
parties to it nor the indorser contemplated an immediate demand,
but all looked to the real time of payment as intended to be
future, and to the indorsement as a continuing guaranty. (s)

Whether evidence is admissible of an agreement or understand-
ing between all the parties that the note should not be demanded
till some future day, has been somewhat considered. In some
cases it has been doubted whether such evidence is admissible,
on the ground that it would be allowing parol evidence to vaiy
the written contract. («) In another case, it was considered as
material in determining the question of reasonable time, and not
as controlling the terms or tenor of the note. (6) It is neces-
sary for the indorser or maker to be a party to the agreement, if
it is to be considered as admissible. (c)

{]/) Supm, p. 269, notey.

{z) C/iurch, C. J, JjOckvfooA v. Crawford, 18 Conn. 361. In Wethey ». Andrews,
3 Hill, .'582, Cowen, J. said : " If it (the note) had not been on interest, not being a bank-
note, I should have thought it right to presume that it had been demanded, and pay-
ment refused (perhaps even within a week). I would presume it on the unwillingness
which every prudent man feels to have his money lie idle ; and would presume that
the holder had seen or sent to the maker immediately, and pressed him for payment.
But I think that directly the contrary is to be presumed with regard to this note, which
bore interest. No one would understand the parties to intend that these words meant
interest for a few weeks only ; nor would the payee or purchaser of a note ordinarily
desire to take it on the terms of a payment so soon. It would be contrary to the general
course of business to demand payment short of some proper point for computing inter-
est, such as a quarter, half a year, year, &c." But in Sice v. Cunningham, I Cowen, 397,
it was held that the fact that the note was payable with interest did not take it out of the
ordinary rule, and the same opinion is expressed in Perry v. Green, 4 Harrison, 61, 64.
Some importance is given to this fiict by Bayley, J., in Barough v. White, 4 B. & C.
32.5, but Ilolroi/d and LHlledale, JJ. do not mention it. They do, however, speak of it
in the same case as reported in 6 Dow. & R. 379. Parke, B., in his opinion in Brooks
i;. Mitchell, 9 M. & W. 15, does not advert to it.

(a) Sice v. Cunningham, 1 Cowen, 397 ; Perry v. Green, 4 Harrison, 61.

(6) Lockwood v. Crawford, 18 Conn. 361. See Brock v. Thompson, 1 Bailey, 322.
In Field v. Nickerson, 13 Mass. 131, the point was touched upon, but not decided.

(c) Perry?; Green, 4 Harrison, 61. See Martin v. Winslow, 2 Mason, 241. In
Lord V. Chadoourne, 8 Greenl. 198, it was doubted whether the fact that the indorser
requested the indorsee not to call upon the maker " at present " would excuse a delay
of six months.

380 NOTES AND BILLS. [CH. XL

The authorities are not uniform as to the effect of notes which
are pjiven as a security for a loan, or as accommodation paper;
the better opinion being, that such notes should be placed on the
same footing as others. ((/) The distance at which the parties
reside from each other has some effect on this question as to what
is reasonable time, a shorter period being allowed when the par-
ties live in immediate proximity. (e)

Where there are several payments indorsed on the note, the
time of the last payment is said to be that from which the reason-
able time is reckoned. (/)

When the note is offered in evidence, duly indorsed, there be-
ing no date to the indorsement, the presumption is, that it was
indorsed before its maturity, and the burden is upon the party
seeking to invalidate the note on the ground of dishonor before
indorsement, to show that the transfer took place after a reasona-
ble time had elapsed. (»■) But when it is once shown to have
been transferred to the holder at a time which would, in general,

{d) In Vrceland v. Hyde, 2 Hall, 429, the note was witnessed, and payable "without
default or defalcation." It was given for a loan, and no demand was made for twenty-
one months. The question was whether the indorser should be discharjicd. " The
rule requiring a presentment within a reasonable time was intended for, and is appli-
cable to, negotiable instruments made for commercial purposes onlij. It was not intended
for cases of suretyship, or notes of a like description, and the present one is evidently
excluded from the rule, by the peculiar circumstances attending it. Here the holder was
an old man, not connected with business, residing at some distance from the city. The
defendant knew these circumstances, and cannot claim any peculiar indulgence from
a consideration of the facts. As each case is governed in some degree by the circum-
stances attending it, in tiiis there must be judgment for the jilaintift'." But the better
doctrine is that laid down in Sice v. Cunningham, 1 Cowen, 397 ; Perry v. Green, 4
Harrison, 61, where it was held that the general rule ap])lied to notes given for loans.
In the latter case it was also held that an indorsement for the maker's accommodation
was to be considered as any other indorsement " It makes no difference in the case,
that the indorsement was in lieu of a former security between tlie same j)arties, or was
for the accommodation of the maker, unless the indorser as.sentcd to the delay." Story,
J., Martin v. Winslow, 2 Mason, 241.

(e) Ttl;ilimnn, C. J., Cromwell v. Arrott, 1 S. & R. 180, 184. Sec M'Kinncy v.
CrawfonI, 8 id. 3.51 ; Nash v. Harrington, 2 Aikens, 9, 1 id. 39 ; Ecdcs v. Ballard, 2
McCord, 388. For the circumstances bearing on this question, as regards present-
ment for acceptance, sec supra.

(/) Sanford v. Mickles, 4 Johns. 224

(fl) lianger v. Cary. 1 Met. 309. Nor is the burden removed by proof that the noto
was delivered to the holder before dishonor, but was not indorsed till aft<'r\vard. Ibid.
In this case the indorsement was not written till two years after the transfer. The
judge charged the jury, that the title was vested in the holder at the time of deiiverj
and when iIk; consideration was paid, as regards letting in the equities. Hi'id coirf rt

CH. XI.] AT WHAT TIME DEMAND SHOULD BE MADE. 381

be considered as beyond the period recognized as a reasonable
time, or where no demand has been made upon the maker for tlie
purpose of fixing the lial)ility of an indorser within that period,
the burden is then shifted upon the liolder, or the party seeking
to enforce a claim by means of the rule, to show such circum-
stances as will amount to a legal excuse for not presenting the
paper sooner. (A)

A note or bill in which no time of payment is mentioned is
equivalent to a note on demand, and it is held that no evidence is
admissible to affect the bill by proof of a different agreement. (i)

A note indorsed after maturity is equivalent to a note on
demand, so far at least as regards the necessity of presentment
to the maker in order to charge the indorser. (j) The demand

{k) Martin v. Winslow, 2 Mason, 241 ; Hendricks v. Judah, 1 Johns. 319; Emerson
r. Crocker, 5 N. H. 159.

(i) Finer v. Clary, 17 B. Mon. 66-3 ; Thompson v. Ketcham, 8 Joluis. 189; Herrick
t. Bennett, id-. 374; Cornell v. Moulton, 3 Denio, 12 ; Bennett, J., Michigan Ins. Co. v.
Leavenworth, 30 Vt. 11, 20 ; Whitlock v. Underwood, 2 B. & C. 1.57,3 Dow. & R.356,
placing such notes on the same footing as those on demand, with reference to the stamp
act ; Siieehy v. Mandeville, 7 Cranch, 208, where the declaration did not state when
the note was payable, and tlie note, when offered in evidence, proved to be payable at
a definite time, — held a fatal variance ; Bacon v. Page, 1 Conn. 404, where the dec-
laration was held bad for not averring the note to be payable on demand, although it
concluded by averring " that the defendant hath never performed the same, though
often requested and demanded," &c. ; Green v. Drebilbis, 1 Greene, la. 552, where it
was held that the words " on demand " need not be used in the declaration, and that
words of similar import were sufficient. In Bank of Utica v. Smedes, 3 Cowen, 662,
the declaration alleged an undertaking by the defendants to charge the first indorser
of notes payable on demand, and set forth the first indorsement to the plaintiffs as
having been made on a daj' certain, the indorsement and delivery of the notes by the
plaintifis to the defendants about six months after, and their undertaking at the lat-
ter time. Held sufficient, especially after verdict, though the declaration did not aver
that the demand of payment was made witiiin a reasonable time. Freeman v. Ross,
15 Ga. 252.

(j) In the following cases, where it was contended in argument that no presentment
was necessary, it was held that demand must be made. Berry v. Robinson, 9 Johns.
121 ; Leavitt v. Futnam, 1 Sandf 199 ; Bishop v. Dexter, 2 Conn 419 ; Dwight v. Em-
erson, 2 N. H. 159 ; Bank of Nortli America v. Barriere, 1 Yeates, 360 ; an early Fenn-
sylvania case to the contrary must be considered as overruled by M'Kinnej- v. Craw-
ford, 8 S. & R. 351 ; Fatter.son v. Todd, 18 Fenn. State, 426 ; Ecfcrt v. Des Coudres,
3 Const. R. 69; Course v. Shackleford, 2 Nott & McC. 283; Ale wood v. Haseldon, 2
Bailey, 457 ; Levy v. Drew, 14 Ark. 334; Foole v. Tolle.son, 1 McCord, 199 ; Benton
V. Gibson, 1 Hill, S. Car. 56. But in Gray v. Bell, 3 Rich. 71, O'Neall, J. said: "I
am however prepared to go much further, and to hold tliat the indorser of a note ne-
gotiated after due, is to be regarded cither as a new maker, or as the drawer of a bill
on a man without funds ; in neither of which cases is a demand of payment or notice
at all necessary. But a majority of the court is not as yet prepared to go so far."

382 NOTES AND BILLS. [CH. XL

mast be made within a reasonable time ; (k) and with regard to
what shall be considered reasonable time, it is laid down by some
authorities that the same strict rules are not to be applied as
are required where a note has still time to run.(/) But other
authorities seem to place the two classes of cases on the same
footing, («i) and it is believed with better reason ; for the law on

(k) Sanborn v. Southard, 25 Maine, 409 ; Branch Bank v. GafFney, 9 Ala. 1 53 ;
Benton v. Gibson, 1 Hill, S. Car. 56 ; Van Hoesen v. Van Alstyne, 3 Wend. 75 ;
Bishop V. Dexter, 2 Conn. 419.

(/) Duncan, J., M'Kinney v. Crawford, 8 S. & R. 351 ; Hall v. Smith, 1 Bay, 330 ;
Chadwick v. Jeffers, 1 Rich. 397 ; Gray v. Bell, 2 Rich. 67, 3 id. 71. In Rugely v.
Davidson, 4 Const. R. 33, Gantt, J. said : " But when a note is indorsed after it is due,
the transaction assumes a different aspect. It is no lon<,'er a case within the custom
and usage of trade ; the expectation of punctuality of payment from the drawer has
vanished, and the holder, in ordinary transactions of this kind, looks rather to the per-
son with whom he has contracted than to the drawer, for indemnity."

(m) In Dehers v. Harriot, 1 Show. 163, all the merchants agreed '' that a bill nego-
tiated after the day of payment was like a bill payable at sight." By a statute in Mas-
sachusetts, sixty days from the date of a note is declared to be the period of rciisonalilc
time within which demand is to be made upon the promisor, in order to charge an
indorser ; and in Rice v. Wesson, 1 1 Met. 400, where the indorsement was made more
than sixty days from the date, the court expressed an opinion to the effect that the
same lengtli of time was still to be considered as reasonable. They also decided that
the defendant was not liable, because the holder, having demanded payment earlier
than he was obliged to, neglected to give the indorser notice, although a subsequent
demand was made within a reasonable time, and notice of the last demand was duly
given. In Bishop v. Dexter, 2 Conn. 419, Gould and Hosnur, JJ expressly say that
there is no difference between the rules applicable to each class. So Collier, J., Kcnnon
V. M'Rea, 7 Port. Ala. 175 ; Adams v. Torbert, 6 Ala. 865; Branch Bank r. Gaffney,
9 id. 153. See Ecfert v. Des Coudres, 3 Const. R. 69 ; Course v. SliacUkford, 2 Nott &
McC. 283 ; Poole v. Tolleson, I McCord, 199, where Richardson, J said: " If it be
asked when notice is to be given, I can only answer that, in my individual judgment,
immediate notice is as much required in such a case as in an}' other. Not only sim-
plicity and uniformity require that the same rule should prevail, but there is the same
force of reason and necessity in the one case as the other, wlietlicr we argue from
the letter, the allowed import of the contract, or from the consequences wliich may
follow." These same reasons would appear to a[)i)ly all the more strongly to pre-
sentment.

There are two early cases in Vermont, where an opinion is expressed, that at least
as much strictness, if not more, is necessary in the case of an indorsement after matu-
rity as in any other. Thus, in Nash v. Harrington, 2 Aikens, 9, a note on demand
was indorsed eight months from date, and was treated as overdue. The holder neg-
lected presentment till the seventh day after the indorsement to him, and it was held
tluu the indorser was discharged. Hutchinson, J. said : " Under these circumstances,
the demand should have been made in a day or two at furthest." The same judge
said, in Aldis v. Johnson, 1 Vt. 136, 140: "If the indorsement bo made ai'ter th«
note falls due, the demand of payment must be made as if the note fell due the day of
the indorsement."

CH. XI.] AT WHAT TIME DEMAND SHOULD BE MADE. 383

the subject of reasonableness of time would seem to be of itself
sufficiently difficult, without burdening it with unnecessary dis-
tinctions and uncertainties, which can only serve to render it
more difficult and obscure. (w)

A bill payable at or after sight must, as has been seen, be pre-
sented for acceptance within a reasonable tirae,(o) and also, if
accepted, at maturity for payment ; (p) and a note so payable
must likewise be presented for payment within such time, before
the maker's liability can accrue. (^)

(w) The tendency to create confusion by introducing distinctions on this j)oint may
well be illustrated by the decisions in South Carolina, which are almost as numerous
as those of all the other States togctlicr, and many of them cannot be reconciled one
with another. It has been held in that State, that the question of reasonableness of
time, in case of notes indorsed after maturity, is one wliich the jury are to decide ; Hall
V. Smith, 1 Bay, 330 ; Eccles v. Ballard, 2 JSIcCord, 388 ; Benton v. Gibson, 1 Hill, S.
Car. .5(5 ; Brock v. Thompson, 1 Bailey, 322 ; Chadwick v. Jeffers, 1 Rich. 397 ; Gray
V. Bell, 2 id. 67, 3 id. 71. In Gray v. Bell, 2 Rich. 67, Butler, J. said, in speaking of
the diligence in respect to demand and notice where the note is indorsed after it is due :
" This diligence does not admit of such exact definition as always to be a question of
law, but must, as it would seem from our decisions, be left, under all the circumstances
of the case, to the decision of a jury. The kind of diligence that should be observed
and pursued by an indorsee, in respect to the collection of a note indorsed before
due, is well settled by certain and acknowledged rules, and is such as always to
make it a question of law for the court." It is difficult to see any good reason for
such a distinction as this. In Brock v. Thompson, I Bailey, 322, it was held that
parol evidence of a stipulation by the indorser, at the time of the transfer, that thq
maker should be indulged as to time by the holder, is admissible to show the de-
gree of diligence to which the holder was bound. In this case the agreement was that
the maker should not be called on for one half the amount of the note till the next win-
ter, and for the other half till the spring following. A demand was made in Novem-
ber, a second during the winter, and a third on March 1st. No notice appears to have
been given, except of the last demand. Held sufficient evidence of due diligence to go
to a jury, and a verdict for the plaintiffs was sustained. In Benton v. Gibson, 1 Hill,
S. Car. 56 ; Chadwick v. Jeffers, 1 Rich. 397 ; Gray v. Bell, 3 id. 71,2 id. 67, it was
held that service of a writ on the maker was sufficient, if known to the indorser at the
beginning of the suit or immediately after ; and in Gray v. Bell, 3 Rich. 71,2 id. 67,
where the maker and indorser were sued by separate writs served simultaneously, it
was held that the mere fact that the suits were commenced at the same time was suffi-
cient to carry with it a presumption of knowledge on the part of the indorser, and to
justify a verdict of the jury in favor of the holder. In Chadwick v. JefTcrs, 1 Rich.
397, Frost, J. said that the duty of the holder in respect to demand and notice " is lim-
ited to the use of such diligence, according to the circumstances of the case, that the in-
dorser suffer no injury through his remissness or neglect." And finally, as has already
been stated, in Gray v. Bell, 3 Rich. 71, supra, p. 381, note j, O'Neall, J. said, that
in his opinion no presentment at all to the maker was necessary.

(o) Supra, p. 338, note c.

(p) See supra, p. 375.

{q) See supra, n. 376.

384 NOTES AND BILLS. [CH. XI.

A note "on demand at sight" is the same as if payable at
si2;ht.(r)

If a note or bill be payable on time, whether that time begins
to run from the date, or from sight or demand, the question
sometimes arises as to how the time is to be computed. The
word " month " means in the law merchant a calendar month,
and has always been so interpreted in relation to notes and
bills.(5)

A note or bill is usually payable at a certain number of days
" after " sight, demand, or date, and this word certainly excludes
the day of the presentment ; (t) or, in the case of a bill presented
on one day, but accepted on another, the day of acceptance, (z<)

(;■) Dixon V. Nuttall, 1 Ciomp. M. & R. 307.

(s) Loffingvvell v. White, 1 Johns. Cas. 99 ; Thomas v. Shoemaker, 6 Watts & S.
179 ; Wagner v. Kenner, 2 Rob. La. 120 ; MclMurchey v. Robinson, 10 Ohio, 496. Seo
Cockell V. Gray, 3 Brod. & B. 186 ; Jolly v. Young, 1 Esp. 186.

(t) In Coleman v. Saver, 1 Barnard. 303, an action against the indorser of a bill
payable at six days after sight, "the Chief Justice said that tiie day of sight is to be
taken exclusive, for the law will not allow of fractions in a day." In Bellasis v. Hes-
ter, 1 Ld. Raym. 280, the plaintiff declared upon a bill payable at ten days after sight,
seen and accepted May 5th. The teste was dated May 15th. The defendant prayed
that the writ might abate, and the plaintiff demurred. The defendant contended that
the day should be excluded, " because it is always so understood among merchants."
The court were of opinion that the custom should have been pleaded specially. Poio-
ell and Xevill, JJ. decided that the day should be included, but Trehy, C. J. held that it
should be excluded. " 1. Because the bill may be seen the last minute of the day, and
that may I>e intended as reasonable as that it was seen the first minute ; 2. the party
may have the whole day to view the bill, and that is allowed him by the law ;
3. because the contrary construction seems absurd ; for tlien, if a bill be payable
one day after sight, it must be paid the same day that it is seen, which is not the
day after tlic sight, as the bill requires." In Lester v. Garland, 15 Vcs. 248, Sir Wm.
(Jrant, M. R. said : " It is now settled that the day upon which a bill is presented is
to be excluded, though it had been ruled otherwise by three judges of the Court of
Common Pleas against the opinion of TrtJnj, C. J." See Blanciiard v. Ililliard, 11
Mass. 85, where it is said that the usage of banks in Massachusetts had formerly been
to include the day of date ; Woodbridge v. Brigbam, 12 id. 403, 13 id. 556 ; Presbrey
r. Williams, 15 id. 193, by Jackson, J , who said, " because otherwise a note payable in
one day would be the same as a note payable on demand."

(//) Mitchell V. DeGrand, 1 Ma.son, 176, Ston/, J.: "A bill payable in so many days
after sight, means after so many days' legal sight. Now it is not merely the fact of
having seen the bill, or known of its existence, that constitutes a presentment to tho
drawee in legal contemjjlation. It must be presented to him for acceptance, and tho
time ot the bill begins to run, not from the mere ])r(sentment, i)Ut from the pre-
sentment and acceptance." "The doctrine of relation cannot apply to cases of
this nature."

CII. XI.] AT WHAT TIME DEMAND SHOULD BE MADE. 385

demand, or datc,(?;) and includes the day on wliich the note is
mature, (ty)

If it be payable at sight, (a;) or after any particular event, the
rule is the same. The same construction is put upon the words
" in,"(//) " from,"(z) " from date," and " from the day of the
date," and they are held to be synonymous. (a)

A question has arisen with reference to notes payable on de-
mand, as to whether the Statute of Limitations is to be construed
as excluding the date, or including it, and the authorities on this
point are conflicting. (6)

(v) Fisher v. State Bank, 7 Blsickf. 610; Taylor i\ Jacoby, 2 Penn. State, 495 ;
Barlow v. Planters' Bank, 7 How. Miss. 129; Henry y. Jones, 8 Mass. 453 ; Homes
V. Smyth, 16 Maine, 181 ; Ammidown v. Woodman, 31 id. 580; Avery v. Stewart, 2
Conn. 69, where the note was not negotiable.

(w) Ripley v. Greenleaf, 2 Vt. 129, 132. It is, in fact, always so computed. Thus
in May v. Cooper, Fortes. 376, the defendant pleaded a tender on Aug. 1st of a noto
dated July 21st, payable in ten days, and it was held to be a day too late. In Cram,
lington V. Evans, 2 Vent. 307, a bill drawn Nov. 10th, at twenty-five days from date,
was presented Dec. 5, and it was alleged for error that " there were, as appears by the
bill of exchange, twenty-five days given for the payment of it after the date of the bill;
whereas here the request and refusal is upon the twenty-fifth day after the date. SlcI non
allocatur, for, as the bill is set forth, it is to pay the money ad viginti et quinque dies post
datum, and this can't be if not paid at the five-and-twentieth day." In Hartford Bank
V. Barry, 17 Mass. 94, where a note dated May 20th, at four months with grace, was
demanded Sept. 23d, a point reserved at the trial at Nisi Prius, that the demand was
a day too early, was abandoned by the counsel for the defendant.

(:r) This would seem to depend upon the question whether days of grace are al-
lowed on bills at sight. If they are, the date would be excluded ; otherwise the bill
would become, it is conceived, payable immediately. Sec this subject treated of infra,
pp. 404-406.

(v) Henry v. Jones, 8 Mass. 453, where the court said : " In the case at bar, the note
was made payable in sixty days, without adding, as is customary, from the date. But the
intention is apparent, and the court will supply the omission. The meaning must be
the same as in sixty days from the date, otherwise a note payable in one day would be
payable immediately, which would be an absurdity." Leavitt v. Simes, 3 N. H. 14 ;
Blake v. Crowninshield, 9 id. 304. See the remarks of Howard, J., cited infra, note z.
The date was excluded in case of a note payable in nine months without grace, in Hill
V. Norvell, 3 McLean, 583.

{z) Henry v. Jones, 8 Mass. 453 ; Avery v. Stewart, 2 Conn. 69. In Ammidown
V. Woodman, 31 Maine, 580, Howard, J. said : " If there be several notes of the same
date, some payable in six months, some in six months from date, and some in six
months after date, they all have the same pay-day. In all of them the day of the date
is excluded."

(a) Henry v. Jones, 8 Mass. 453. " Where a note is payable in a certain number of
liays from the date, or from the day of the date, the day of the date is to be excluded."
So Gibson, C. J., Taylor v. Jacoby, 2 Penn. State, 495.

(6) In Presbrey v. Williams, 15 Mass. 193, the note was dated Feb. 16th, 1810. On

Vol. I.— Z

386 NOTES AND BILLS. [CH. XI

If a note or bill has no date, or a void or impossible one, the
time must be computed from the day on which it was delivered
or issued ; (c) because there would seem to be " no other certain
indicium of the time of its taking efFect."((i) Where no date or
delivery is shown, the date is to be considered, it would seem, as

Nov. 1st, 1811, a payment had been made and indorsed upon the note. The action
was commenced Nov. 1st, 1817. Jackson, J. said : "By the Statute of Limitations it
was intended that the plaintiff should have six full years, and no more, within which
to bring his action. In this case he might have brought his action on the 1st of No-
vember, 1811, as upon a new promise then made, supposing that the action had been
previously barred by the statute ; and if he may also commence it on the 1st day of
November, 1817, it would make se-ven first days of November in the six years pre-
scribed by the statute. In the construction of a promissory note, payable in a certain
number of days, the day of the date is excluded ; because, otherwise, a note payable in
one day would be the same as a note payable on demand, and this is the reason given
in the case of Henry v. Jones," 8 Mass. 453, supra, note y.

The contrary was held in Cornell v. Moulton, 3 Denio, 12, where Bwnson, C. J.
said : " Our cases all go to establish one uniform rule, whether the question arises upon
the practice of the court, or the construction of a statute, and the rule is to exclude the
first day from the computation."

(c) In De la Courtier v. Bellamy, 2 Show. 422, " the foct was alleged to be, that a
party drew such a bill such a day, and the same was afterwards presented to, and ac-
cepted by, the defendant. An exception was taken, that the date of the bill ^ras not
set forth, and the court held it was well enough, and they would intend it dated at tlie time
of drawing it." In Hague v. French, 3 Bos. & P. 1 73, the first count in the declaration
stated that the defendant, on the 1.5th day of September, 1800, drew a bill of exchange
bearing date the day and year aforesaid, payable two months after date. The second
count stated that afterwards, to wit, on the day and year aforesaid, the defendant drew
a certain other bill of exchange, payable two months after date. No express date was
mentioned in either count, but they were both held to be good. In Giles v. Bourne, 6
Manic & S. 73, 2 Chitty, 300, the plaintiff declared, that "on February 22d, 1816, A
made his bill of exchange, and thereby required the defendant, four months after date,
to pay at Messrs. V. & Co." &c. On demurrer because no date was assigned to the
bill, it was held that the declaration was good, for it might "be intended that the date
of the bill was the day on wliich it was alleged to have been made." A distinction
attempted to be taken between Hague v. French, 3 Bos. & P. 173, and this case, that
tlic former came before the court on a writ of error, and the latter on demurrer, was
overruled. In Mechanics' Bank v. Schuyler, 7 Cowen, 337, note a, Sutherland, J. said :
" Where they (a note or bill) have no date, the time, if necessary, may be inquired
into, and will be computed from the day they were issued." Where an award has no
date, the time must be computed from the delivery. Armitt v. Breame, 2 Ld. Raym.
1076. So where a deed has no date, or an impossible or void one. Com. Dig. Fait,
(B. 3) ; Styles v. Wardlc, 4 B. & C- 90S. So in a lease; Bac. Abr. Leases, (E) 2,
Rule 2, 1 ; and in a bond ; Goddard's case, 2 Rep. 5.

((/) Bac. Abr. Leases, (E) 2, Rule 2, 1. This was said with reference to leases, but
there seems to be no good reason why it should not apply to notes. The language
Bomctimes used is, that a note witliout a date takes effect from the time of its making
but this, it would seem, is inaccurate.

CH. XI.] AT WHAT TIME DEMAND SHOULD BE MADE. 387

that time when the note or bill can first be proved to have a
legal existence. (e)

We have seen that, although a note does not take effect until
delivery,(/) and is said to be considered as made on the day it i?
delivered, (g-) yet this must be so only as regards the title or
the validity of the contract ; but in respect to the question of
computation of time, (A) the note takes effect from its date, by
relation in case it is ante-dated, and prospectively where it is
post-dated, (i) One reason of this is, that it would otherwise be

(e) Thus, in Mahier v. Le Blanc, 12 La. Ann. 207, the case turned upon the point
whetlier a draft was accepted prior to, or subsequent to, certain judgments. Buchanan,
J. said : " The draft purports to be dated November 30th, 1849, but being a writing
sous seing priv^, it has, per se, no date as against third persons. The acceptance of the
draft bears no date, and for the determination of the antiquitj' of the claim of plain-
tiff, as compared with the contracts and judgments which she seeks to annul, the only
date which can be assigned to that claim is the date of the protest, to wit, November
4th, 1850 ; for no other proof has been adduced of the existence of the draft, or of any-
other legal consideration for the same, at a previous date to that protest." Chitty (p. 370,
10th ed., London) says : "In general, the date of a bill or note should be stated, and
if there be no date, then the day it was made ; and if that cannot be ascertained, then
the first day it can be proved to have existed." Qucere, whether a note where no date
or delivery can be ascertained might not in some cases be considered as payable on
demand 1

(f) Supra, p. 48, et seq,

(g) In Lansing v. Gaine, 2 Johns. 300, Kent, C. J. said : " The date of the notes
then becomes immaterial, as they were valid only from the time of their delivery ; and
unless the contrary be shown, the presumption will be that they were then actually drawn,
and were antedated by mistake or design. If they had been previously drawn, they
had no force while in the possession, and under the control, of the maker. To all legal
purposes, the notes are to be considered as made or drawn when they were delivered."
But this language, which is rather too broad, was used with respect to the question
whether a partnership note, dated before dissolution, but not issued till afterwards by
one of the partners, bound the others, and it was held that it did not.

(h) In Brewster v. McCardel, 8 Wend. 478, Sutherland, J. said: "The date of a
note is in no respect material, except for the purpose of determining when it is pay-
able."

{i) The time from which the Statute of Limitations begins to run on a note is reck-
oned from the date, not from the delivery. Bumpass v. Timms, 3 Sneed, 459. So on
an acceptance. Montague v. Perkins, C. B. 1853, 22 Eng. L. & Eq. 516. In Styles
V. Wardle, 4 B. & C. 908, Bayley, J. said : " "When there is no date, or an impossible
date, that word must mean delivery. But where there is a sensible date, that word in
other parts of the deed means the day of date, and not of the delivery .... Tlie ques-
tion here is, What, in this covenant, is the meaning of datus ? I consider that a party
executing a deed agrees that the day therein mentioned shall be the date for the pur-
poses of computation. It would be very dangerous to allow a different construction of
the word date ; for then, if a lease were executed on March 30th, to hold from the date,
th It being the 25th, and the tenant were to enter and hold as if from that day, yet, after
tht expiration of the lease, he might defeat an ejectment on the ground that the lease

o5>'8 NOTES AND BILLS. [CH. XL

difficult to know when the note was due, and much inconven-
ience would arise and great risk be incurred from an uncer-
tainty as to the proper time of making the demand. It would
seem that a maker would be estopped from setting up m defence,
tliat a demand, though made at a proper time from the date,
was not made at maturity, reckoning from delivery, the evidence
of which would in many cases be uncertain ; (j) and it cannot
be supposed that any such defence would be open to an indorser
or any other party. We should not even admit that the holder
might have his option as to which period of time he would use
in reckoning the date of maturity, for it is obvious that the
former mode is far preferable, as tending to create greater uni-
formity and certainty in the law on this point. (^^) It may here
be remarked, that it is immaterial on what part of the note the
date is written. (/)

The New Style, or mode of reckoning the year according to
the Gregorian Calendar, is used everywhere except in Russia and
those countries in which the Greek Church is the established
religion, and these still adhere to the Old Style, following the
Julian Calendar, (w) In order to convert the Old Style to the
New, it is now necessary to insert twelve days. Thus, if a bill is
drawn in Russia, January 1st, 1861, the date would correspond
with January 13th in this country. (w)

was executed on a, day subsequent to the 25th of March, and that he did not hold from
that day." In Towell v. Waters, 8 Cowen, 669, 687, Jones, Ch. said : " A note has no
binding force, or legal inception, nor constitutes any contract, until delivered and in the
hands of a bona fide holder. It acquires the form of a contract from the delivery, and
not, ah initio, from the execution of it. But when delivered it takes effect from its date,
and for all substantial purposes becomes a binding contract upon the maker ah initio."

{)') He certainly would be, where a holder for value received the note in ignorance
of the facts. Thus, in Huston v. Young, 33 Maine, 85, a note dated January 14th,
1847, payable in two years, was sued October 8th, 1849. The maker offered to prove
that the note was made in 1848, that the date 1847 was a mistake, and consequently
that the suit was premature. The holder bought the note before maturity, unaware of
tlic mistake. Held, that the evidence was inadmissible.

(k) See the remarks of Bai/lei/, J., cited supra, note i.

(/) Sheppard v. Graves, 14 How. 505, where it was written at the foot, opposite the
makers' names.

(w) Sie Encyrlopajdia Britannica, Vol. VIII. pp. 76 - 78, tit. Calendar.

(n) (Ircgory directed that October 4th, 1582, should be followed by the 15th. The
year 1600 being a leap-year, both according to the Gregorian and Julian Calendar, no
further change occurred until 1700, wliich being a common year by the Gregorian 8 j4
a leap-year by the Julian, the difference between the New and Old Style became groj.tei

CII. XI.] AT WHAT TIME DEMAND SHOULD BE MADE. 389

111 the case of bills drawn in a country using one style, and
payable in a country using another style, if a bill is payable at a
fixed period, the style of the country where it is payable governs
the time of maturity. Thus, if a bill is drawn in London, dated
January 13th, 1861, which is January 1st, 1861, according to
the Old Style, on St. Petersburg, payable at one month after date,
it will, if accepted generally, be payable on February 4th. And
conversely, a bill drawn in St. Petersburg on London, dated Jan-
uary 1st, will under like circumstances be payable on February
16th. (o) If a bill is payable after sight, or on or after demand,
the computation is unaffected by any diversity of style.

Usance sometimes comes into the calculation of the time, if
the bill be drawn on a country in Continental Europe. This
means the time which is fixed by the usage of the countries
between which the bill is drawn for its payment ; (p) a bill being-
drawn at so many usances instead of so many days.

We doubt whether usage has determined any usances between
this country and the countries of Europe, our bills being, usually
at least, drawn at a certain number of days or months instead
of usances, and this practice is said now to be taking the place
of drawing at usance in Europe. (g) Usances are calculated
exclusive of the day of the date, and days of grace are allowed
on bills so drawn. (r) A half-usance is always fifteen days when
usance is a month, notwithstanding the unequal length of the
months. (5) Mr. Chitty(/) gives a full list of those which exist
between England and the countries on the Continent, and we
have placed them in our note.(M)

by one. A like increase, for a similar reason, took place in the year 1800, so that now
the Old Style is twelve days in advance of the New.

(0) That is, adding the days of grace. Story on Bills, § 331 ; Chitty, lOth ed.,
London, 253.

(p) Chitty on Bills, 10th ed., London, 254 ; Story on Bills, § 50.

(7) Chitty on Bills, 10th ed., London, 254.

(r) Chitty on Bills, 10th ed., London, 254 ; Story on Bills, § 332.

(s) Byles on Bills, 160 ; Marius, 93.

(0 Chitty on Bills, 10th ed., London, 255-257 ; Story on Bills, § 332, note 2

(u) Between London and
Aleppo, 1 month after date (sometimes ac- Antwerp, 1 month after date.

counted trehle usance). Bahia, none.

Altona, 1 month after date. Barcelona, 60 days after date.

America, North, 60 days. Berlin, 14 " " sight.

Amsterd>\m, 1 month after date. Bilboa, 2 months after date.

33*

390

NOTES AND BILLS.

[CH. XI

Another circumstance to be taken into consideration in ascer-
taining the time at which a note or bill is to be paid, is, that in
most cases the note or bill is not mature at the precise time
mentioned in it, but three days after. This allowance is usually

Bordeaux, 30 days after date.
Brabant, 1 month " "
Brazil, none.

Bremen, 1 month after date.
Bruges, " " "

Buenos Ayres, none.
Cadiz, 2 months after date.
Constantinople, 31 days after date.
Dantzic, 14 days after acceptance.
Flanders, 1 month after date.

Madrid, 60 days after date.
Malta, 30 " " "
Middleburgh, 1 month after date.

Milan, 3 " " "

Naples. 3 " " "

Netherlands, 1 " " "

Oporto, 60 days " "

Palermo, 3 months " "

Paris, 1 " " "

Portugal, 60 days " "

Florence, 30 days after date (sometimes Rio de Janeiro, none.

accounted treble usance). Rotterdam, 1 month after date.

France, 30 days after date. Rome, 3 " " "

Frankfort-on-the-Main, 14 days after ac- Rouen, 1 " " "

ceptanee.
Geneva, 30 days after date.
Genoa, 3 months " "
Germany, 30 days " "
Gibraltcr, 2 months after sight.

Hamburg, 1 " " date.

HoUand, 1 " " "

Italy, 3 " " "

Leghorn, 3 " " "

Leipsic, 14 days " acceptance.

Lisbon, 60 " " date.

Lisle, 1 month " "

Lucca, 3 " " " (sometimes).

Between Amsterdam and
Brabant, 1 month.
Breshui, 14 days after sight.
Flanders, 1 month.
France, 1 "
Frankfort, 14 days after sight.
Germany, 14 " " "
Hamburg, 14 " " "

Uetween Altona, Hamburg, and
Fiuine, 2 months after date.
France,] " " "
Gi.'rniany, 14 days after sight.
Holiaiiil, 1 month after date.

St. Petersburg, none.

Seville, 60 days after date.

Smyrna, 31 " " "

Spain, 60 " " " (except Cadiz)

Sweden, 30 " " sight.

Switzerland, 30 days after siglit.

Trieste, 14 " *' acceptance.

Venice, 3 months after date.

Vienna, 14 days after acceptance.

West Indies, 31 days after "

Zante, 3 months after date.

Zealand, 1 month after date.

Holland, 1 month.

Italy, 2 "

Nuremberg, 14 days after sight.

Portugal, 2 months.

Spain, 2 "

Vienna, 14 days after sight.

Zealand, 1 month.

Italy, 2 months after date.
Portugal, 2 " " "
Spain, 2 " " "
Trieste, 2 " " "

Between Amsterdam, Antwerp, Rotterdam, and
Dantzic, 30 days after sight. Germany, 14 clays after sight

England, 1 month after date. Italy, 2 months after date.

France, I " " " Konigsberg, 30 days after sight.

CH. XI.] AT WHAT TIME DEMAND SHOULD BE MADE. 39l

called grace ; which, as its name imports, was originally a favor,
and could not bo demanded as a right by the payer, but depended
upon the inclination oi" the payee. (y)

It appears that in England, from an early time, the length of
this })criod in foreign bills was three days, (it;) and that it was for
a short time somewhat doubtful whether any grace was given in
the case of inland bills ; (x) or if given, whether it was three days
or a "reasonable time."(7/) It may be supposed that in foreign

Portugal, 2 months after date. Spain, 2 months after date.

Riga, 30 days after sight. Switzerland, 14 days after sight.

Genoa, abolished by the Code Napoleon.

Holland, Venice, and Hamburg, 2 months after date.

Between Leghorn and
Hamburg, 2 months after date. Paris, I month after date.

Holland, 2 " " " Spain, 2 " " "

Lisbon, 3 " " "

Between Lisbon, Oporto, and
France, 60 days after sight. Italy, 3 " " "

Germany, 2 months after date. Spain, 15 days after sight.

Holland, 2 " " "

Palermo and most places, except London, 21 days after sight.

(v) Chitty on Bills, 10th ed., London, 2.58.

(iv) Hill V. Lewis, Skin. 410 (1694), Holt, C J. In Tassell v. Lewis, 1 Ld. Raym
743 (1696), it is said that, "In case of foreign bills, the custom is that three days
are allowed for payment of them ; and if they are not paid upon the last of the said
days, the party ought immediately to protest the bill and return it ; and by this means
the drawer will be charged ; but if he does not protest it the last of the three days,
which are called the days of grace, there, although he upon whom the bill is drawn
fails, the drawer will not be chargeable ; for it shall be reckoned his folly that he did
not protest." See Coleman v. Sayer, infra, note//; Brown v. Harraden, 4 T. R. 148.

(x) In Cramlington v. Evans, 2 Vent. 307 (1691), an action agaipst the drawer, the
bill was drawn in Newcastle, Nov. 10th, 1685, payable in twenty-five days from date.
It was alleged for error, that " there were, as appears by the bill of exchange, twcnt}'-
five days given for the payment of it after the date of the bill ; whereas here the request
and refusal is upon the twenty-fifth day after the date. Sed non allocatur: for as the
bill is set forth, it is to pay the money ad viginti et quinque dies post datum ; and this
can't be if not paid at the five and twentieth day." There is no mention of grace
made in this case.

(y) In Tassell v. Lewis, 1 Ld. Raym. 743 (1696), it i.s said that " There is no cus-
tom for the protest of inland bills of exchange, nor any certain time assigned by the
custom for the payment of them ; therefore, the money ought to bo demanded in a rea-
sonable time ; and then, if it is not paid, the drawer will be charged." But in Coleman
V. Sayer, 1 Barnard. 303, " the other matter then came into debate whether three days
of grace in certain are allowable upon inland bills, as well as upon foreign ones, or
whether only a reasonable time. The Common Sergeant and the foreman of the jury
said that the constant practice in the city was to allow them in one case as well as the

392 NOTES AXD BILLS. [CH. XI.

bills a reasonable time was at first allowed, wliicb custom was
finally limited to three days, for the sake of uniformity and pre-
cision, and that the same thing happened in inland bills. It was
also for some time a " vexata questio in Westminster Hall "
whether a promissory note was entitled to grace; (2) but this was
finally settled in the year 1791, by a decision of the Court of
King's Bench, where it was held that the three days were to be
allowed on promissory notes, and on inland as well as foreign
bills.(a)

In some of the States of this country, the courts early held
that foreign bills alone were entitled to grace, and denied the
indulgence to inland bills and promissory notes ; but in all these

other. Upon which the Chief Justice said that then he would not alter it; though he
observed that he remembered two cases, one in Lord C. J. Kelijm/a^s time, the other in
Lord Holt's, where they were both of opinion that in inland bills it is only a reason-
able time ; and what that is, the jury ought to determine." In Brown v. Harraden, 4
T. R. 148, 151, Lord Keni/on said : " It is extremely clear that on foreign bills of ex-
change three days of grace are allowed. I think it is as little to be doubted tliat they are

also allowed on inland bills When it is stated in 1 Ld. Raym. 743, tiiat there was

no certain time assigned by the custom of merchants for the payment of inland bills of
exchange, it only shows that tlie judges were very cautious on the subject ; but now it
has been settled for more timn half a century that tiicy are payable at tiie same time as
foreign bills of exchange."

(?) In May ». Cooper, Fortes. 376 (1722), the defendant pleaded a tender, on Au-
gust 1st, of a note dated July 21st, payable in ten days. Held a day too late. In Dc.\-
laux V. Hood, Buller, N. P. 274 (1752), Denison, J. said there were no days of grace
on a note as there are on a bill of exchange ; but the jury said it was commonly un-
derstood that there were three days of grace, and therefore thought the dem.and in
time ; but the judge said the law was otherwise, and directed them to find for tiie de-
fendant. In Brown v. Harraden, 4 T. R. 148, Buller, J. said : " Tlie question wliether
tiiree days of grace shall or shall not be allowed on promissory notes has, for many years
past, been a vexata questio in Westminster Hall. But the practice among merchants and
bunkers has been uniform in favor of tiie indulgence. The doubt which has arisen in our
own time has been principally founded on the determination of Mr. J. Denison, at Nisi
Prius ; though it ajjpears that the jury there said tiiat the judge's oi)inion was against
the practice ; and that case has always been handed down in jirint with a qmvre. And
t-incc I have sat upon tlie bench, I have always held at Nisi Prius, that the tiiree days
are allowed, whether the question has arisen on the supposed laches of the holder, or in
eases of usury."

(a) Brown v. Harraden, 4 T. R. 148, an action by an indorsee against the iudorser
of a hill ])ayabie November 2d. Tiie defendant pleaded a tender on Nov. 5th. l{epli-
cation, that the defendant did not tender \moY to Nov. 4th. Rejoinder, tluU the de-
fendant was not liable before the 5th. Surrtjoinder, tiiat he was so liahle. General
demiiner and joinder. Verdict for the defendant In Leftley v. Mills, 4 T. R. 170,
three days were allowed on an inland bill. The rule as stated in tlie text is the gen-
eral rule. As to the kinds of notes and bills tiiat are not entitled to grace, see
iiij'iu, p. 393, notes b and c.

CH. XI.] AT WHAT TIME DEMAND SHOULD BE MADE. 393

the matter was soon regulated by statute. (/>) In others, the
courts adopted the rule re(]uiring' the allowance of grace on in-
land bills and promissory notes, as a part of the common law,
without any express statutory regulations on the subject. (c)

[b] In Maine and Massachusetts, "a note of liand is not entitled to grace unless it is
expressly payal)le with grace," — a dictum of Parsons, C. J-, Jones v. Tales, 4 Mass.
245. But "when the court gave the opinion" in this case as to grace, "it was new.
Gentlemen old in practice understood that we had adopted the English law as to this,
as we had the other parts of that law in regard to negotiable contracts.'' I Dane, Abr.
41.3, § 7. In Maine, foreign bills were alwajs entitled to grace, but inland bills and prom-
issory notes, by a statute passed in 1824, only when "discounted at any bank, or left
there for collection." Pickard v. Valentine, 13 Maine, 412; McDonald v. Smiih, 14
id. 99; Central Bank v. Allen, 16 id. 41. A note payable at a bank, but not dis-
counted or left there for collection, was not entitled to grace in 1837. Buck v. Apple-
ton, 14 id. 284. But now, by R. S. 18.57, p. 273, grace is allowed on "any promissory
note, inland bill of exchange, draft, or order for the payment of money, payable in this
State at a future day, or at sight, and not on demand." In Mussachusetls, in 1824, a
statute was passed allowing grace on bills of exchange payable within this State at
sight or at a future day certain ; and on promissory negotiable notes, ordei"s, and drafts,
payable within this State at a future day certain, in which there is not an express stipu-
lation to the contrary. Bills of exchange, notes, or drafts, payable on demand, are
expressly excepted from the foregoing provisions. Gen. Stat. 1860, p. 294. In Ohio,
upon notes payable at banks, and upon commercial bills of exchange, it is a well-
established usage to allow days of grace. In relation to mere ordinary notes of hand,
no such usage is understood to prevail. Sharp v. Ward, 7 Ohio, 223 (183.5) ; Isham v.
Fox, 7 Ohio State, 317. But by a statute passed in 1839, grace was allowed on all bonds,
notes, or bills made negotiable by statute. 11. S. 1854, p. 576. In an act passed in 1857,
" all bonds, notes, or bills, payable at a day certain, after date or after sight, made ne-
gotiable," are entitled to grace. Laws of 1857, p. 76. In Ahrth Carolina, grace was
allowed, except between the original parties. Jarvis v. McMain, 3 Hawks, 10 (1824).
See State Bank v. Smith, 3 Murphey, 70. By statute passed in 1848, " all bills of ex-
change payable within the State, at sight, or at a future day certain, in which there is
no express stipulation to the contrary," are entitled to grace. Bills, notes, and drafts,
on demand, are excepted. Rev. Code, 1855, p. 111. In the Territory of Arkansas, \n
McLain v. Rutherford, Hempst. C. C 47 (1827), it was held, that "the custom of
luercbants (as to days of grace) does not apply to the maker and the payee"; in
Cook r. Gray, id. 84 (1829), that " days of grace do not attach to promissory notes."

(c) In Alabama, grace was allowed in 1824 on a promissory note. Crenshaw ».
M'Kiernan, Minor, 295. The first statute on the subject was passed in 1828. Now,
" bills of exchange, and promissory notes, payable in money, at a bank, or at private
banking-houses, are governed by the general commercial law." " All other instru-
ments, payable in money, at a bank or private banking-houses, are governed by the
commercial law, as to days of grace, protest, and notice. No days of grace are al-
lowed on any contract except those enumerated." Code, 1852, p. 317.

In Arkansas, in 1838, a statute was in force, enacting that "the remedy on bills,
foreign and inland, and on promissory notes or obligations payable in bank, shall be
governed by the rules of the law merchant, as to days of grace, protest, and notice."
Dig. of Stat. 1858, p. 211. There is no reported case on the subject prior to 1838.

In California, by an act passed in 1851, grace "shall be allowed, except on sight bills

394 NOTES AND BILLS. [CH. XI.

Most, if not all, commercial countries now require, as a matter
of strict right, the days of grace, which are added to the time
that a note or bill has to run. Chief Justice Marshall declared
that the allowance of days of grace is a usage which pervades

or drafts." Woods, Dig. 1857, p. 74. There is no reported case on the subject prior
to this time.

In Connecticut, " by the imraemorial custom of merchants, sanctioned by judicial
decisions, notes and bills payable at banks are entitled to grace." Sioift, C. J., Shep-
ard V. Hall, 1 Conn. 329 (1815). So on all negotiable promissory notes and bills.
Norton v. Lewis, 2 id. 478 (1818). The only statute respecting grace is with regard to
holidays.

In Delaware, grace was recognized as early as 1832. Bank of Wilmington v- Cooper,
1 Harriog. 10. The only statute on the subject is one denying grace to "checks,
notes, drafts, or bills, payable without time or at sight." Rev. Code, 1852, p. 183.

In Florida, grace was allowed on a promissory note in 1847. Spann v. Baltzcll, 1
Fla. .301. There is no statute.

In Georgia, the only act on the subject denies grace to sight bills and drafts, and
specifies certain days as holidays. R. S. 1857, p. 278.

In Illinois, in the absence of any statute, grace was allowed on a bill of exchange in
1858, on the ground that the law merchant was part of the common law of the State.
Cook V. Renick, 19 111. 598.

In Indiana, grace was allowed in 1820, in Piatt v. Eads, 1 Blackf. 81, where it ex-
pressly appeared that there was no statute. By an act passed in 1849, "' on all bills of
exchange, payable within this State, whether sight or time bills, three days of grace shall
be allowed." R. S. 1852, p. 379.

In Iowa, grace was allowed in 1841, on a promissory note without any express
statute. Hudson v. Matthews, Morris, 94. " Three days of grace are allowed on bills
of exchange, according to the custom of merchants, but not on any other instruments ;
and a demand at any time during the three days of grace will be sufficient for the pur-
pose of charging the indorser." Code, 1851, p. 150. But by an act passed in 1853,
" grace shall be allowed upon bills and notes executed and payable within this State,
according to the principles of the law merchant, and notice of non-acceptance or non-
payment, or both, of said instruments, shall be required according to the rules and prin-
ciples of the commercial law." Laws of 1853, p. 188. Revision of 1860, p. 320.
The act of 1853 repeals the provisions of the Code, so that a demand on the first day
of grace is premature. Edgar v. Greer, 8 Clarke, 394.

In Kcnluckij, grace was allowed in 1848. Stradcr v. Batcliclor, 8 B. Mon. 1G8. Thero
is no statute.

In Louisiana, by a statute passed in 1805, "instead of the ten days of grace
which have been heretofore allowed, three days only shall be hereafter allowed." Dig.
1828, Vol. I. p. 93. " Upon all bills of exchange and promissory notes made nego-
tiable by law, or by usage and custom of merchants in tliis State, three days of grace
aluill be allowed." R. S. 1856, p. 46.

In Maryliind, in an action by an indorsee against the maker of a note, dated Sop-
tcmbir 19tli, payable at twelve months, the writ was served on the defendant Septem-
ber 20tli, and the jjlaintiff recovered. Ponsonby v. Nicholson, 4 Harris & ^L 72. This
was decided in 1797, and no reasons are given. But in Beck v. Thomjison, 4 Harris &
J. 531 (1819), a count in a declaration on a promissory note was held bad, because it
alleged a demand, without allowing for grace, " three days before the note bccam«

CH. XI.] AT WHAT TIME DEMAND SHOULD BE MADE. 395

the whole commercial world. In the same case he said that it
was universally understood to enter into every bill or note of a
mercantile character, and to form so completely a part of the con-
tract, that the bill does not become due, in fact or in law, on the
day mentioned on its face, but on the last day of grace ; and a

due, according to the established rule of law." Martin, J. See Jackson v. Union Bank,
6 Harris & J. 146 ; Flack v. Green, 3 Gill & J. 474. There is no statute.

In Michiyan, a statute in the same terms as that of Massachusetts, supra, p. 393, note
b, was in force as early as 1838. Comp. Laws, 1857, p. 408. There is no reported
case on the point prior to that time.

In Minnesota, a statute similar to that in Massachusetts was in force in 1858, Stat.
1858, p. 376, prior to any reported case on the subject.

In Mississippi, grace was allowed in 1842, in Fleming ji. Fulton, 6 How. Miss. 473,
where it was contended that only foreign bills were entitled to it, and that four days
was the proper time ; but both objections were overruled. But in Harrel v. Bixler,
Walker, 176, where a suit was brought on a note by the indorsee against the indorser,
it was held that the defendant was not entitled to grace. There is no statute.

In Missouri, grace was allowed on a promissory note in 1823, in Schlatter v. Rector,
I Misso. 286. The only statute on the subject is one prohibiting grace on bills at sight.

In Neiv Hampshire, in Leavitt v. Simes, 3 N. H. 14, Richardson, C. J. said, with refer-
ence to a promissory note, that it was well settled that the demand ought to be made
on the last day of grace. It appeared, in this case, that four out of the five banks in
Portsmouth, in one of which the note in suit had been left for collection, were in the
habit of allowing grace. This decision was rendered in 1823, and in 1828 a statute
was passed enacting that "nobill of exchange, negotiable promissory note, order, or
draft, except such as arc payable on demand, shall be payable until days of grace have
been allowed thereon, unless it appear in the instrument that it was the intention of the
parties that days of grace should not be allowed." Comp. Stat. 1853, p. 460.

In New Jersey, in Ferris v. Saxton, 1 Southard, 1, 17 (1818), Kirkpatrick,C- J. said
that it was well settled that the day on which a note became due was on the third day
of grace. The only €tatute relates to holidays.

In New York, grace was mentioned in Leffingwell v. White, 1 Johns. Cas. 99 (1799) ;
and in Corp v. M'Comb, id. 328 (1800), the court say, that " notice to the indorser on
the third day of grace, after a dumand made of the maker, and his default of payment,
is good." The only statute refers to holidays.

In North Carolina, " All bills of exchange payable within the State, at sight, or at
a future day certain, in which there is no express stipulation to the contrary, shall be
entitled to days of grace, as the same are allowed by the custom of merchants on foreign
bills of exchange, payable at the expiration of a certain period after date or sight :
Provided, that no days of grace, shall be allowed on any bill of exchange, promissory
note, or draft, payable on demand." Rev. Code, 1854, p. 111.

In Oregon, the provisions of the Massachusetts statute were in force as early as 1855,
prior to any reported case. Stat. 1855, p. 531.

In Pennsylvania, it was adopted as early as 1792. Bank of North America v.
M'Jvnight, 1 Yeates, 145. The only statute denies grace to bills at sight.

In Rhode Island, in Cook v. Darling, 2 R. I. 385, it was contended that the note in
suit was not entitled to grace, because not payable at a bank ; but the court overruled
the objection, and allowed the grace. There is no statute on the subject, except ona
with regard to holidays and one denying it to bills at sight.

39b NOTES AXD BILLS. [CH. XI.

deinand of payment previous to that day would not authorize a
protest, or charge the drawer of the bill.(c/) The number of days
throughout the United States and England (e) is three ; and the
presumption in all cases would be that that is the number to be
allowed. (/) A usage formerly prevailed in the banks of the Dis-

In South Carolina, grace was adopted in 1818, in Lovel v. Wartenburgh, 1 Nott &
McC 83. There is no statute.

In Tennessee, grace was recognized in 1823, in Broddie v. Searcy, Peck, 183. The
only statute denies grace to bills at sight, and refers to holidays.

In Texas, by an act passed in 1848, three days were allowed on "all bills of ex-
change and promissory notes, assignable and negotiable by law, provided this shall
e.xtend only to contracts between merchant and merchant, their factors and agents."
Hartley, Dig. 18.50, p. 773. There is no reported case on the subject of grace prior to this
statute.

In Vermont, in Nash v. Harrington, 2 Aikens, 9 (1826), the court decided to "adopt
the law merchant touching the necessity of demand upon the maker and notice back
to the indorser, in order to charge him. The point was raised, as to the adoption of
grace, in Ripley v. Greenleaf, 2 Vt. 129 (1829), but not decided, as the counsel had
agreed that it should be allowed By a subsequent act, " all bills of exchange,
drafts, and promissory notes," executed or payable in that State, are entitled to grace.
Contracts payable on demand, or in any other way than money, are excepted. By an
act passed in 1850, contracts payable at sight are excepted. Comp. Stat. 1850, p. 443.

In Virginia, there is no statute.

In Wisconsin, a statute similar in its terras to that of Massachusetts was in force as
early as 1849. R. S. 1838, p. 409. Prior to this time there is no reported case on the
subject.

{(i) Marshall, C J., Bank of Washington v. Triplett, 1 Pet. 25. Notes and bills on
demand should be excepted. In Savings Bank of New Haven v. Bates, 8 Conn. 505,
Bissell, J. said : "It is too well settled to admit of dispute, that, in regard to negotiable
notes, the days of grace make a part of the original contract. Such a note, payable
by the terms of it in sixty days, is, in law, a note payable in sixty-tliree days. Before
the expiration of tliat time, no demand of payment can be made, and if negotiated on
the sixty-first or sixty-second day, it is not negotiated when overdue." See also
Thomas v. Shoemaker, 6 Watts & S. 179, Kennedy, J. In Cook v. Darling, 2 R. I.
385, it was held that all negotiable promissory notes, whether payable at a bank or not,
are entitled to grace, unless there is a usage to the contrary; and the burden of proving
such usage is upon the party attempting to set it up. In DoUfus v. Frosch, 1 Denio,
367, it was lield that commercial paper payable in France on a day certain will, in the
absence of any proof respecting the law of that country, bo considered as i)ayable on
the third day of grace.

{(■) The same is true of Scotland, Wales, and Ireland. Chitty on Bills, 10th ed.,
London, p. 259.

(/) Wood V. Corl, 4 Met. 203. Shaw, C. J. said : " Another ground of defence
was, that it docs not appear that, by the law of Ohio, three days of grace are allowed ;
and therefore it is not shown that a demand on the third day was right. But we Qon-
sidcr it well settled that, by the general law merchant, which is part of the common
law, as prevailing throughout the United States, in tlic absence of all proof of particular
contract or special custom, three days of grace arc allowed on bills of ext-hangc and
promissory notes; and when it is relied upon that, by special custom, no grac«\ is

CH. XI.] AT WHAT TIME DEMAND SHOULD BE MADE. 397

trict of Columbia, not to make a demand of notes discounted by
them, or left with them for collection, until the day after the last
day of grace, thus allowing four days ; (g-) but this custom has
since been changed so as to conform to the general commercial
usage of demanding payment on the third day.(/<) It was like-

allowed, or any other term of grace than three days, it is an exception to the general
rule, and the proof lies on the party taking it." So also Dollfus v. Frosch, 1 Denio,
367, supra, note d ; Lucas v. Ladew, 28 Misso. 342. But in Goddin v. Shipley, 7 B. Mon.
57.5, a contrary doctrine would seem to be laid down by Marshall, C. J., who said :
" The note was presented tln-oe days after the expiration of the time mentioned for
payment, and probably on the last day of grace. But the number of days of grace is
fixed by the local law, and not by the law merchant, which refers it to the law or usage
of the place or country where the instrument is payable. And there is no evidence of
the law of Missouri on this subject, none at least which would authorize the court to
withdraw the fact from the jury." In this case, the only dispute, as to fact, was whether
the note was payable in Missouri ; and the judge at Nisi Prius instructed the jury to
find for the plaintiff, if they believed that the note was payable in Missouri. He must
have acted on the presumption that the days of grace there were three ; but this instruc-
tion was held eiToneous.

(g) Renner v. Bank of Columbia, 9 Wheat. .581. It appears that the Bank of Co-
limibia had adopted this practice from its establishment in 1793, and that it has been
the universal custom of all the banks in Washington and Georgetown, for more than
twenty years. The indorser was acquainted with it when he indorsed the note, and a
demand on the maker at the fourth day was held sufficient to charge him. It was also
held that, although the declaration does not allege the custom, yet if proof of it is ad-
mitted, without objection, a judgment for the plaintiff is not erroneous. The same
points were decided in Bank of Columbia v. Magruder, 6 Harris & J. 172, where it was
held that the proper mode of procedure, where the custom was not alleged, was by way
of demurrer, on exception to the admissibility of the evidence at the trial. In Mills v.
Bank of U. S.^ 11 Wheat. 431, it was not proved that the indorser knew the usage ; but
Story, J., after referring to the case of Eenncr v. Bank of Columbia, said: "In the
present case the court is called upon to take one step further; and, upon the principles
and reasoning of the former case, it has come to the conclusion, that when a note is
made payable or negotiable at a bank, whose invariable usage it is to demand payment
and give notice on the fourth day of grace, the parties are bound by that usage, whether
they have a personal knowledge of it or not. In the case of such a note, the parties are
presumed, by implication, to agree to be governed by the usage of the bank at which
they have chosen to make the security itself negotiable." So Kaborg v. Bank of Colum-
bia, 1 Harris & G. 231 ; Bank of Columbia v. Fitzhugh, id. 239. In Bank of Washington
V. Triplett, 1 Pet. 25, it was held that there was no distinction in this respect between a
note or bill made negotiable at a particular bank, and one that was not. In this case the
bill was drawn in Alexandria on Washington ; but tiiis was held not to vary the law, as the
rule respecting grace is to be governed by the usage of the place where the bill is paya-
ble. The bill had been left in the bank for collection. In Cookcndorfcr v. Preston,
4 How. 317, it was held that the usage only applied to notes discounted by the banks.

(h) Cookendorfer v. Preston, 4 How. 317, where it is stated that the change was made
in 1818. But in Adams v. Otterback, 15 How. 539, it is said tliat the Bank of Washing-
ton has changed back again to the previous custom since the decision of Cookendorfer
V. Preston.

VOL. I. 34

398 NOTES AND BILLS. [CH. XI.

wise the custom in Louisiana formerly to allow ten days ; but
this has been changed by statute to the regular time.(i) The
number of days on the continent of Europe varies from none to
fifteen, and a list of these will be found in our note.(j) The
number to be allowed, in any case, and the regulations concern-
ing them, will be governed by the law of the place where the

(i) The statute was passed in 1805, supra, p. 394, note c.

(j) Altona. Sundays and holidays included. Bills due thereon to be paid

the day previous 12 days-
Amsterdam, abolished by Code Napoleon None.

Antwerp. " " " « «

Austria. None on bills at sight, demand, or less than 7 days after sight or
date; bills presented after maturity to be paid within 24 hours, Sundays
and holidays included, and if the last day of grace falls thereon, protest

to be made the next day. 3 days.

Bahia. See Brazil 15 days.

Barcelona. 14 days.

Berlin. Bills due on Sunday or holiday to be paid the day previous. . . 3 "

Bilboa 14 "

Brazil. Sundaj's and holidays included. Bills due thereon to be paid the day

previous. 15 "

Bremen ' . . . . 8 "

Cadiz 6 "

Dantzic 10 *

Denmark. 8 "

France. Abolished by Code Napoleon None.

Frankfort-on-the-Main. Sundays and holidays not included. None on bills

at sight. 4 days.

Geneva. 5 "

Genoa. Abolished by Code Napoleon None.

Germany. 8 days.

Gibraltar 14 "

Hamburg. Same as Altona. Called respite days 12 "

Leghorn. None.

Leipsic "

Lisbon. 6 days on local ; 15 on foreign bills. Bills not accepted to be paid the

day they fall due 6 or 15 days.

Madrid 14 "

Malta 13 "

Naples. Abolished by Code Napoleon. None.

Oporto. Same as Lisbon. 6 or 15 days.

Palermo. None.

Rio dc Janeiro. Same as Brazil. . , 15 davs.

Rotterdam. Abolished by Code Napoleon. None.

St. Petersburg. On bills payable after date, 10 days; at sight, 3 days; at
any time after sight, none; on bills presented after maturity, 10 days. Sun-
days and holidays and the day tlic 1)111 falls due included ; on wliicli days
no protest can bo made, but payment must be demanded the morning of
the last day of grace, and protest made before sunset. Vary from 10 days to nona

CII. XI.] AT WHAT TIME DEMAND SHOULD BE MADE. 399

note or bill is payable; (A;) though, as has been seen, the presump-
tion is that three days are allowed, and the burden of proof to
show that, by the usage or law of the place of payment, no grace
at all, or any number of days other than three, is allowed, is upon
the party seeking to avail himself of it.(/) As grace was itself
originally dependent upon, and had its origin in usage, it would
seem that evidence of usage should be admissible, in any case,
either to lengthen (m) or to shorten (n) the number of days,
although the courts in New York at one time seem to have been
inclined to exclude such evidence, as tending to control the set-
tled law with respect to negotiable paper, (o) One exception,

Spain. Varying; generally 8 on inland, and 14 on foreign bills. But see Ca-
diz. Bills payable at sight, or at a fixed date, or unaccepted before ma-
turity, not entitled Vary from 6 to 14 days.

Sweden 6 "

Trieste. Same as Austria 3 "

Venice. Sundays, holidays, and days when banks are shut, not included. 6 "

Vienna. Same as Austria 3 "

(k) Bank of Washington v. Triplett, 1 Pet. 25 ; DoUfus v. Frosch, 1 Denio, 367 ;
Bowen v. Newell, 3 Kem 290, 2 Duer, 584. This case arose on a check made in New
York and payable in Connecticut. By the law of the former State grace is allowed, by
tlie latter, not. Held, that the check was not entitled to grace. On the first trial of
this case, as reported in 5 Sandf. 326, evidence of the usage of banks in Connecticut
not to allow grace was admitted, and held to govern the question whether grace should
be allowed. This was reversed in the Court of Appeals, in 4 Seld. 190, where it was
held that the evidence was inadmissible to control the rules of law in relation to such
paper. But on the next trial, as reported in 2 Duer, 584, the usage, being found gen-
eral, was admitted, and this was afiirmed on appeal, in 3 Kern. 290. It seems some-
what difficult to reconcile these cases. See infra, note o. Martin, J., Vidal v. Thomp-
son, 11 Mart. La. 23 ; Goddin ?;. Shipley, 7 B. Mon. 575 ; Lucas v. Ladcw. 28 Misso.
342 ; Ripley v. Greenleaf, 2 Vt. 129 ; Bryant v. Edson, 8 id. 325. In this case. A, of
Massachusetts, made a note there, payable to B, of New Hampshire. B brought the
note to Vermont, and C, of Vermont, signed it as a joint maker. The note was dated
in Massachusetts. By the laws of New Hampshire and Massachusetts, the note was
entitled to grace ; by the law of Vermont, not. Held, that the note was to be consid-
ei'ed as made and payable in Massachusetts.

(/) Supra, p. 396, notes d and f.

(m) See the cases cited supra, p. 397, note^r, as to the custom of banks in the Dis-
trict of Columbia to allow four days.

(n) See supra, p. 396, notes d and /'; Kilgore v. Bulklcy, 14 Conn. 362, where Storrs,
J. said : " The question how fur evidence of usage is admissible to show that, as to a
particular species of negotiable paper, it is entitled, not to the usual number of days
of grace allowed by the general law, but to a greater or less number, has received the
most deliberate consideration of our courts of the highest authority, especially on
commercial questions, and is most explicitly and decisively settled." Bowen v. Newell,
S Kern. 290, 2 Duer, 584 ; City Bank v. Cutter, 3 Pick. 414, infra, p. 402, note z.

io) Woodruff V. Merchants' Bank, 25 Wend. 673, where Nelson, C. J. said : " The

400 NOTES AND BILLS. [CH. XL

however, to this rule, is, that no evidence of usage can be allowed
to control the terms of any statutory enactment on the subject. (/?)
The only remnant of the idea of favor which now attaches to
the days of grace is this : If a note or bill without grace falls
due on Sunday, or any recognized holiday, like any other con-
tract which is to be performed on that day, (9) it is not payable
until the next succeeding secular day, according to the weight
of authority,(r) because the payor cannot be compelled to do

eflPect of the proof of usage, as given in this case, if sanctioned, would be to overturn
the whole law on the subject of bills of exchange iu the city of New York. We need
scarcely add, even if the witnesses were not mistaken, and the usage prevails there as
testified to, it cannot be allowed to control the settled and acknowledged law of tlie
State iu respect to this description of paper." This case was affirmed in 6 Hill, 174.
The case of Brown v. Newell, 4 Seld. 190, is to the same effect. The only ground on
which these cases can be sustained is that the usage was not sufficiently proved. But
the courts did not seem to rest their decision on this ground. At any rate, so far as
the admission of evidence of a properly established custom is concerned, they are
overruled by the case of Bowen v. Newell, 3 Kern. 290. See supra, p. 399, note k.

(/)) Perkins v. Franklin Bank, 21 Pick. 483.

(7) 2 Parsons on Contracts, 179.

(r) Salter v. Burt, 20 Wend. 205 ; Barrett v. Allen, 10 Ohio, 426, Lane, C. J. dis-
senting. The point was learnedly discussed, and elaborate opinions on both sides of the
question given, in Avery v. Stewart, 2 Conn. 69, where a majority of the court, con-
sisting of Sivijt, C. J , Trumbull, Smith, Drainnrd, Goddard, and Gould, JJ., decided
that a tender on Monday of the amount due on a note payable on Sunday, witliout
grace, was valid, Edmond, Smith, and Ilosmer, JJ. dissenting. Gould, J. said : '• The
note iu question became payable on Sunday. But payment on that day is prohibited
by law. The question, then, arises, whether the tender should have been made on
Saturday or Monday. It has been argued that the d-ebtor in such a case must, at his
peril, pay or tender, at all events, within the time appointed. It would seem to me
quite as reasonable to say that he cannot, in any event, be required to pay, nor the
creditor to accept payment, be/ore the time appointed It is true, as to contracts on
whi'/h days of grace are allowed, that if the last of those days is Sunday, payment
must be made on Saturday. But the allowance of grace was originally a mere indul-
gence, which it might be very reasonable to qualify with greater strictness than if it
had been demandable as a matter of right. At any rate, the allowance of grace is an
anomaly, and tlie rules resulting from it are, of course, not to be extended by analogy
Upon the whole, the doctrine which appears to me most reasonable is, that as Sunday
cannot, for tlie purpose of performing contracts, be regarded as a day, in law ; it is, a*
to that jiurposc, to be considered as stricken from the calendar, though intervening
Sundays are doubtless to be counted as in all other computations of time; because?
they are not appointed for tlie performance of any act. And this distinction is analo-
gous to the modes of computation under the common rule for pleading in abatement.'
Ilosmrr, J., in a dissenting opinion, said : " I have already observed, that tiic perform-
ance of the contract should be as near to the letter of it as it may bo ; and tliat it will
be equally near, whether the day of payment is considered as being Saturday or Mon-
day. The other branch of my |)roposition is this, that it must not include a longer
period than the one which the contract expressly assumes. In other words, the partv

CH. XI.] AT WHAT TIME DKMANI) SHOULD BE MADE. 4^>1

business on such a day, nor, in the case of Sunday, is it hiwful
for him so to do. But if the last day of grace falls upon a holi-
day, the note or bill must bo presented, in the absence of any
statutory provisions to the contrary, on the secular day next pre-
ceding the holiday, (.s) oven though the note be entirely deprived

promising must perform witliin tlie time prefixed. To enlarge the time of a contract
is jus diccre, non dare. If the contractor lias appointed a day on which to perform,
when, hy law, he cannot, he did it with his eyes open, with full Icnowlcdge that, unless
his agreement was void from the impossibility of ])orformance, it could not be executed
on the day prefixed. What, then, is the reasonal)le consequence ? As the party prom-
ising knew that his contract could not literally be accom])lished, and as he knew, like-
wise, that he must perform within the limits of the time assumed, he must have ex-
pected and intended to have fulfilled it on Saturday. This, in my judgment, is the
fair legal construction. If it wanted fortifying, it would derive it from the well-known
maxim. — a rule of some strictness and rigor, and the last to be resorted to, — that the
construction is to be most strong against the party promising." After referring to the
rule, that, when the last day of grace falls upon Sunday, demand must be made on
Saturday, he proceeds : "Between a negotiable note becoming due on Sunday, and a
note not negotiable payable at the same time, I perceive a distinction, but no essential
difference. The construction, in iny opinion, should be the same in both instances.
It cannot comport with public convenience that a different rule should prevail in cases
so very similar. It is much preferable that there should be one uniform rule on the
subject, than that a diversity should exist, which will emharrass mankind in their inter-
course with each other, and may be a fruitful source of error and litigation In

fine, in my judgment, one uniform rule of construction on the point under discussion
is desirable. The person who promises to do an act must, at his peril, if there has no
impossibility arisen posterior to the engagement, perform within the time explicitly
assumed. If the contract is stipulated to be performed on Sunday, the legal construc-
tion is, that it shall be done on the preceding Saturday. This is agreeable to the usage
of merchants, in respect of bills of exchange and negotiable notes, — a usage not arbi-
ti'ary and founded on no reason, but bottomed on common sense and common law;
and in this opinion I am more deeply confirmed, since no case has been adduced to
show that a person has been allowed a period to perform in, beyond the express limita-
tion of his contract." See also Sands v. Lyon, 18 Conn. 18; Staples ?'. Franklin Bank,
1 Met. 4-3, 47. Shaw, C. J. The only decision to the contrary, in the case of notes, is
Osborne v. Smith, 14 Conn. 366, note, infra, p. 402, note u. But with regard to other
contracts, it will be seen that there is a conflict of authority.

(s) In Tassell ?;. Lewis, 1 Ld. Raym. 74.3, it is said: "But if it happens that the
last of the said three days is Sunday, or great holiday, as Christmas day, &c., upon
which no money used to be paid, then the party ought to demand the money upon the
second day ; and if it is not paid, he ought to protest the bill the said second day,
otherwise it will be at his own peril, for the drawer will not be chargeable." Bussard
r. Levering, 6 Wheat. 102; Barker v. Parker, 6 Pick. 80; Jackson v. Richards, 2
Caines, 343 ; Lewis v. Burr, 2 Gaines's Cas. 195 ; Spencer, J., Griffin v. GofF, 12 Johns
423 ; Ontario Bank v. Petrie, 3 Wend. 456 ; Cuylcr v. Stevens, 4 id. 566 ; Ransom v.
Mack, 2 Hill, 587 ; Sheldon v. Benham, 4 id. 129 ; Sheppard v. Spates, 4 Md. 400;
OfFut V. Stout, 4 J. J. Marsh. 332 ; Fleming v. Fulton, 6 How. Miss. 473 ; Barlow v.
Planters' Bank, 7 id. 129 ; Homes i'. Smith, 20 Maine, 264, where a demand made on

Vol. L— 2 A

40fi NOTES AND BILLS. [CH. XL

of grace by three succeeding holidays. (^) This question, it may be
remarked, like all others connected with the subject of grace, is
dependent upon the law or the usage of the place where the note
or bill is to be presented.(M) In case the holidays intervene, they
are to be treated as any other day.(y) Sunday has been treated
as a holiday in England with respect to the days of grace on for-
eign bills from the time of Lord Holt,(it?) and it lias since been
extended equally to inland bills and promissory notes. (.r)

Before any statutory provisions concerning them, the fourth
of July, (2/) and Commencement-day at Harvard University in
Massachusetts,(2:) have been recognized as holidays by the courts.

Sunday itself was held a day too late, and an indorser was discharged. See Avery v.
Stewart, 2 Conn. 69, supra, p. 400, note r.

(t) In Diibney v. Campbell, 9 Humph. 680, the last day was Sunday. Saturday
■was New-Year's day, and the demand was made on Friday. Neither counsel nor court
made any objection to it. The case, however, which was decided for the defendant,
an indorser, turned on another point.

(ti) Blodgett V. Durgin, 32 Vt. 361 ; Ivilgore v. Bulkley, 14 Conn. 362, which was
a case on a certificate of deposit which fell due by its terms on Sunday. As it was
payable in New York, it was held to be governed by the law of that place, as to the
proper day of presentment. Evidence was offered by the defendant to show that
grace was there allowed, and by the plaintiff that it was not allowed. The evidence
had been objected to. On the question whether Saturday was a proper day for pre-
sentment, the plaintiff introduced evidence of usage, and also a report of the case
of Osborne v. Smith, 14 Conn. 369, note, decided in the Superior Court of New
York city. The defendant objected to all this evidence, and introduced testimony to
prove that the custom was to make the demand on Monday, and also a report of the
case of Salter v. Burt, 20 Wend. 205, decided in the Supreme Court of New York.
The jury found for the plaintiff. Held, that the evidence and decisions were properly
admitted, and that the instruction given by the presiding judge, that the decision of the
Supreme Court was entitled to greater weight tiian that of the Superior Court, but
that neither was conclusive, was conxct.

(v) See Avery v. Stewart, 2 Conn. 69, supra, p. 400, note ?•. So if the day the note
is due, on its face, is Sunday. Wooley v. Clements, 11 Ala. 220.

{w) In Tassell v. Lewis, 1 Ld. Kaym. 743, " Merchants, in evidence at a trial in
Guildhall, Trin. 7 Wm. IIL (1696), Ix'fore lloll, C. J., swore the custom of merchants
to be such, which was approved by Ilult, C. J."

(x) Kent, C. J., Jackson v. Richards, 2 Caincs, 343. It would seem always to have
been so considered in the United States.

((/) Lewis V. Burr, 2 Caines's Cas. 195 ; Cuyler v. Stevens, 4 Wend. 566; Ransom
I'. Mack, 2 Hill, 587 ; Sheldon v. Benham, 4 id. 129.

{z) In City Bank c. Cutter, 3 Pick. 414, it was held that, though this day was not a
legal holiday, yet a usage of any bank, in respect to notes falling due that day, to make
a demand and to send notice the day previous, will bind an indorser, conusant of that
usage, of a note discounted for him at the bank ; and whether the note was payable at
the bank or not is immaterial. In this case the note was payable on that day, and a
demand made the day previous. Tlie indorser was held.

CH. XI.] AT WHAT TIME DEMAND SHOULD BE MADE. 403

Now, in most of the States, there are statutes specifically de-
scribing holidays, and prescribing the practice with regard to
them ; (a) but independently of these, usage would determine
whether any day was to be so regarded, and also the regulations
concerning \t.{b)

(a) In Alabama, Sunday, Jan. 1st, and July 4th are established holidays. Code,
1852, p. 317. In Arkansas, Sunday, July 4th, Dec. 2.'5th. In California, Sunday,
Jan. 1st, July 4th, Dec. 2.5th. Wood, Di^., 1858, p. 74. In Connecticut, Sunday, July
4th, Dec. 25th, Thanksf^iving and Fast days. R. S. 1854, p. 694.

In Geonjia, Sunday, Jan. 1st, July 4th, Dec. 25th, Fast and Thanksgiving days.
Cobb, New Dig., 1851, p. 522. In Illinois, Sunday, Fourth of July, Christmas, New
Year's day. III. Stats., ed. 1858, p. 119.

In Iowa, Sunday, Jan. 1st, July 4th, Dec. 25th, Fast and Thanksgiving days. Re-
vision of I860, p. 320.

In Louisiana, Sunday, Jan. 1st, Jan. 8th, Feb. 22d, July 4th, Dec. 25th, Good Fri-
day. These are called " days of public rest." R. S. 1856, p. 44.

In Maine, Sunday, Feb. 22d, July 4th, Dec. 25th, Fast and Thanksgiving days.
R. S. 1857, p. 273.

In Massachusetts, Sunday, Feb. 22d, July 4th, Dec. 25th, Fast and Thanksgiving
days. Gen. Stats. 1860, p. 294

In Minnesota, Sunday, Jan. 1st, July 4th, Dec. 25th, Fast and Thanksgiving days.
Stat. 1858, p. 376.

In Missouri, Sunday, Jan. 1st, July 4th, Dec. 25th, Thanksgiving. R. S. 1855, p.
298. In Neio Hampshire, Sunday, July 4th, Fast and Thanksgiving days. Laws of
1857, p. 187. In New Jersey, Sunday, Jan. 1st, July 4th, Dec. 25th. Nixon, Dig.
1855, p. 669. In New York, Sunday, Jan. 1st, July 4th, Dec. 25th, Fast and Thanks-
giving days. R. S. 1852, p. 181.

In Ohio, Sunday, Jan. 1st, July 4th, Dec. 25th, Thanksgiving. Laws, 1857, p. 76.

In Rhode Island, Sunday, Jan. 1st, July 4th, Dec. 25th, Thanksgiving and Fast
days. R. S. 1857.

In Tennessee, Sunday, Jan. 1st, July 4th, Dec. 25th, Fast and Thanksgiving days.
Code, 1858, p. 400.

In Vermont, Sunday, Jan. 1st, July 4th, Dec. 25th, Fast and Thanksgiving days.
Comp. Stat. 1850, p. 443.

In Wisconsin, Sunday, Jan. 1st, July 4th, Dec. 25th, Thanksgiving. Gen. Laws,
1860, p. 224.

In the following States the demand must be made on the business day next preced-
ing any holiday, — Alabama, Arkansas, California, Georgia, Louisiana, Massachusetts,
Minnesota, Missouri, New Hampshire, New Jersey, New York, Ohio, Rhode Island,
Vermont. In the following States, on the first business day next succeeding, — Con-
necticut, Wisconsin. In Maine, where a holiday falls on the last day of grace, de-
mand must be made the business day next before the holiday. If on the last, and
also on the second, it should be made the next succeeding business day. In Ver-
mont, the regulations aifect contracts on which no gi-ace is allowed equally with
those which are entftled to that indulgence.

(6) City Bank v. Cutter, 3 Pick. 414, supra, note «.■» In Adams v. Otterback, 15
How. 539, a bank which had been accustomed to make presentment of paper dis-
counted on the day after the third day of grace, attempted to set up a usage to make
presentment on Monday, when Sundtiy was the fourth day ; but as the only evidence

404 KOTES AND BILLS. [CH. XL

It is settled that, if the maker is entitled to grace, the iiidorser
has the same privilege ; (c) and also that, if the indorser has the
right to consider the days of grace as a part of the contract, the
maker has also ; (d) though an opinion seems formerly to have
been entertained, that grace only applied as regards an indorser,
and that the maker was liable as soon as the note fell due, ac-
cording to its terms ; (e) but there is no modern authority to this
effect, and no usage that we are aware of.

As to the kinds of instruments entitled to grace, the rule, as
supported by the weight of authority, is, that all negotiable notes
and bills, except those payable on demand and those in which an
intention to exclude grace is apparent on the face, are entitled to
this indulgence.

There may still be some doubt with reference to bills payable
at sight, for the law on this point can hardly be said to be in a sat-
isfactory state. In England, there has been as yet no authorita-
tive decision, though the inclination of the authorities appears to
be in favor of the allowance. (/) In this country, the weight of

of this usage consisted of four instances within two years, it was held not to be
sufficiently established. In Dabney v. Campbell, 9 Humph. 680, evidence was intro
duced of a usage of the banks in Memphis and Nashville to regard New- Year's day
as a holiday. The judge, at Nisi Prius, charged the jury tliat a demand the day prc«
vious was not sufficient to charge an indorser, unless he had express knowledge of tlia
usage, or previous dealings with the bank from wiiich such knowledge could be in-
ferred. Held correct, and a verdict for the defendant was sustained. The plaintiffs
contended that the defendant, having dealt with the bank, was bound by tlie usage,
wliether he had knowledge or not. Green, J. said : " The custom proved in tiiis
case is not one by whicli all the notes negotiated in this bank are regulated, but it is a
custom applicable to only one day in the year. In the nature of tilings tiic cases on
which this usage has been acted on must be comparatively few ; actual knowledge of
it cannot, therefore, be reasonably inferred, even in relation to habitual dealers in the
bank. But that a man who is not proved to have dealt at all with the bank heretofore
shall 1)0 held bound by such usage, is to subvert altogether the original principle of the
cases, and to substitute the usage of a bank as the law of the contract, in opjiositiou
to, and disregard of, the general law."

(d) Love V. Nelson, Mart. & Y. 237 ; Hogan v. Cuyler, 8 Cowcn, 203.

(e) Jarvis v. McMain, 3 Hawks, 10 (1824). In both cases cited supra, noted, the
judges at Nisi Prius instructed the juries to tlic same effect, l)ut the courts above de-
cided that the instructions were erroneous.

(/) In Dehers v. Harriot, 1 Show. 163, 164, note (1692), all the merchants agreed
" that, if there were an acceptance, the protest must be at the day of payment ; if at
sight, tiien at the tliird day of grace." In Coleman v. Saycr, 1 Barnard. 303 (1728),
cue of the questions was "whether tiic tiirce days of grace arc allcwable by tiie custota
of London, as well where a I>ill is payable at certain days after siglit, as well as where

CII. XI.] AT WHAT TIME DEMAND SHOULD BE MADE. 405

authority is on the same side, but the decisions arc conflictiiig.(^'')
Undoubtedly usage would determine the question in any particu-

it is payable upon sight. The Chief Justice said the days of grace were allowable in one
case as well as the other." In Jansou v. Thomas, 3 Doug. 421 (1784), it was olijeetc"'
by tlic defendant, th;it the bill, which was at sight, was unstamped. It was answered,
tliat the stamp act excluded bills on demand, and that bills at siglit should come within
the operation of the act. Held, for the defendant, that the I>ills should have been stamped.
Lord Mantijield said : " I believe there is great doubt as to the usage about the three
days' grace." Bulkr, J. said : " In a case before Willes, C. J. (1743), a special jury cer-
tified that, on bills at sight, three days were allowed. That was an action on an in-
land bill. I know that now they differ about it in the city, but in general it is taken."
In Dixon v. Nuttall, 1 Cromp. M. & R. 307 (1834), the point arose, but the court
thought it unnecessary to express any opinion upon it." In Webb v. Fairmaner. 3
M. & W. 473,474, Bolland, B., interrupting counsel, said: " In the case of a bill pnya-
ble at sight, it has been decided over and over again, tiiat the holder cannot su(^ upon it
until after the expiration of the third day after sight."

(g) The cases allowing grace are Hart v. Smith, 15 Ala. 807, where Dargaii, J.
said : " I am free to confess that my opinion, untrammelled by authority, would incline
me to hold that a bill of exchange, payable at sight, is not entitled to days of grace."
But after citing the English authorities, and the opinions of text-writers, adds: " Undei
the influence of tiiese authorities I feel constrained to hold that a bill payable at sight is
entitled to days of grace." Lucas v. Ladew, 28 Misso. 342. In Nimick v. Martin,
1 Monthly Law Mag. 15, 17 West. Law J. 380, Straichridfje, J. said : " On the abstract
question, I have not now, nor have I for thirty years, had the least doubt." He then cites
the opinions of Kent, Bayley, and Chitty with approbation, and adds : "If we were at
liberty to examine into the reason of the thing, it would seem much stronger in favor
of a sight draft than of one at sixty days or six months, where all reason fails." Contra,
Trask v. Martin, 1 E. D. Smith, 505, Ingraham, J. dissenting. Woodruff, J., delivering
the opinion of the court, said: "However such allowance originated, whether in the
indulgence of the holder or otherwise, it became at last the right of the drawee. But it
is in contradiction of the terms of the bill, and a departure from its plain import. So
far as the usage allowing such departure has ripened into law, so far as this departure
has been recognized and approved, so far, and so far only, should it prevail against the
otherwise obvious meaning of the language. The language of a bill of exchange payable
at sight requires that it should be paid when exhil)itcd to the drawee. Is it payable ac-
cording to its purport, or does that usage, which has now become laiu, embrace such a
bill, and alter its otherwise legal meaning 1 Prima facie, as alread}^ remarked, the
language of the bill should govern. This rule of construction is applicable as much
to commercial contracts as to any others. If the language is to be controlled and modi-
fied by usage, it may be, 1st, by a usage so ancient and so universal as to form a part of
the general law applicable to the subject, or, 2d, as usage of a particular place, uniform
within its limits, creating an exception to the general rule, and to be ascertained by in-
quiry and proof. .... Nothing, therefore, can be inferred respecting bills payable at sight
from the conceded fact that bills paj-able after sight or after date, or at a future day, have
days of grace, so long as it is no less clearly settled that bills payable on demand, or
without any day of payment named therein, have no days of grace. On the contrary,
if analogy furnished any guide, we should say that the terms 'at sight' no less de-
cidedly indicated on the verij instant, than 'on demand,' and there would seem to be no
cnore reason for allowing days of grace in the one case than in the other." The judge

106 NOTES AXD BILLS. [CH. XI.

lar case, and it has been so held. (A) The ophiioii of some of
the older writers was for the exclusion of grace 5(1) but this is not
so with the majority of modern authors who have treated of the
subject. (j) In many of the States statutes have been passed,

goes on then to state that the ease had been argued entirely apart from any local usage
in New York, and that the general usage with reference to bills at sight was so un-
certain, and its recognition so doubtful, that it could not be taken to contradict the im-
port of the language of the bill itself. The cases cited supra, p. 404, note/, were criti-
cised, and their authority denied. The opinions of the text-writers were commented upon
at length, and the authority of Beawes and Kyd especially relied upon. He then adds :
" My conclusion is, that the language of the instrument, in tlie absence of any settled
legal principle modifying its import, must govern the court in determining its meaning
and effect. And that there is no known recognized usage which the court, as a matter
of law, can say has given to such bills tlie allowance of days of grace." So far as the
reason of the thing is concerned, we should be inclined to adopt the opinion of Straw
bridge, J., cited above. It has been stated that grace probably had its origin in thy
fact that the goldsmiths, who were the early bankers, used to make their payments
in bars of gold and silver, and often would require some time in order to have a sufll-
cient weight at the place of payment to meet the demand. This of course would apply
with all the more force to those bills the time of whose presentment was uncertain, as
is the case with bills at sight; so that whenever a goldsmith stipulated that a bill
should first be shown to him, he also stipulated that a reasonable time should be al-
lowed him within which to prepare to meet it. With respect to analogy, it is clear
that, granting there is a difference between a sight bill and one on demand, the former
bears a closer resemblance to a bill at one day's sight, which is without any doubt
entitled to grace, than the latter, which is not. The distinction between these two
kinds of instruments has always been clearly defined, and one objection to the decision
in Trask v. Martin is, that it tends to obliterate the line which has been drawn between
them. With regard to the criticisms on the English authorities, although it will be
conceded that none of them is authoritative, yet they are all evidence to show what the
custom of merchants formerly was ; and the ojiinion of " all the merchants " in tho
case in Shower, of the " special jury" in the case tried before Miller, C. J., is certainly
entitled to great weight on this point. As regards the contradiction of the language
of the bill, it would seem that this argument migin liave been used with greater force
at the early period in the law of notes and bills than at present, and that, instead of
being necessary to show by usage that a note or bill is entitled to grace, it would seem
to be more in accordance witii the spirit of modern law, as stated in the cases cited
supra, p. .396, notes d and f, that the burden of proof is upon the party seeking to de-
prive any kind of negotiable instrument of grace, to prove either a usage or law to that
effect. If tliis were not so, it is conceived tliat grace could never bo allowed, except
on paper which is already entitled to it.

(/i) Slrawbridye, J., Nimick v. Martin, 1 U. S. Monthly Law Mag. 1.5, 7 Wesn Law
Journ. .380, in the District Court of New Orleans. Nov. 1849.

(/) Heawes, ])1. 2.52, 256 ; Glen, 119, citing Lav. torn. 1, liv. 3, c. 5 ; Scarlett, C. 16,
R. 8 ; Johnson, 9; Jousse do I'Ordonnnnce 167.3, 78; Kyd, 10; Pothicr, 172.

( ;■) Haylcy, 233 (Am. ed. 18.36) ; Bylcs, 162, says : " The weight of authority has
been considered to incline in favor of such allowance." Chitty, 258. 261, lOih Loud, cd.;
Edwards, 523; Forbes, 142; 3 Kent, Com. 102; Sclw. N. P, Bills of Ivnch 6 ; Hm'lh,

CH. XI.] AT WHAT TIME DEMAND SHOULD BE MADE. 407

owing to the uncertainty of the law; some of them admit-
ting,(/u) others excluding grace. (/)

Grace has never been extended to notes and bills on de-
mand, (w) but there are statutory regulations concerning this also
in several States. («)

If a note be payable by instalments, the days of grace are
allowed on each instalment, (o) A note payable the first day of
May, " fixed," has been held not entitled to grace, the signifi-
cation of the word " fixed " being construed to be " witiiout
grace. '■(/>) This meaning has not been applied to the words
"without defalcation. "(r/)

A bank-check ordinarily is not entitled to grace ; but whether
it is entitled to the allowance or not when post-dated, or when its
terms are the same with those of a bill of exchange, is yet unset-
tled, the authorities being in a state of conflict, (r) Grace has
been allowed on bank post-notes,(.9) and there seems to be no rea-

Merc. Law, 249, 5th Lond. ed. ; Story on Bills, § 342 ; Vincr, Abr., Bills of Exch. B.
Thompson expresses no opinion. So 1 Bell, Com. 416.

{k) Alabama, Arkansas, Indiana, Louisiana, Maine, Massachusetts, Michigan, Min-
nesota, New Hampshire, North Carolina, Ohio, Oregon, South Carolina, Texas, Wis-
consin See supra, p. 393, notes b, c.

(/) California, Minturn v. Fisher, 4 Calif. 35 ; Delaware; Georgia, Freeman v. Ross,
15 Ga. 252 ; Missouri, Lucas i;. Ladew, 28Misso. 342 ; New York ; Pennsylvania, Laws
of 1857, p. 630; Rhode Island, R. S. 1857, p. 278; Tennessee, Code, 1858, p. 400,
Vermont. See supra, p. 393, notes b, c.

(m) Gammer v. Harrison, 2 McCord, 246 ; Smith v. Bythewood, Rice, 245 ; Luckey
I'. Pepper, Morris, 490. See Freeman v. Ross, 15 Ga. 252 ; Coiven, J., Harkcr v. An.
derson, 21 Wend. 372 ; Woodruffs. Merchants' Bank, Nelson, C. J., 25 id. 673 ; Parke,
B., Oridge v. Sherborne, 11 M. & W. 374.

(n) In the following States grace is expressly denied by statute, to notes and bills on
demand : Maine, Massachusetts, Michigan, Minnesota, New Hampshire, North Caro-
lina, Vermont, Wisconsin. See supra, p. 393, notes b, c.

(o) Oridge i: Sherborne, 11 M. & W. 374. Sec Carlon v. Kenealy, 12 id. 139.

(p) Durnford v. Patterson, 7 Mart. La. 460, where the opinion of Febrcro is cited
to show that " fixed " means " without grace," and that of Jousse, that it is super-
fluous.

(g) McDonald v. Lee, 12 La. 435.

(r) Infra, chapter on Checks.

(s) Sturdy ». Henderson, 4 B. & Aid. 592 ; Staples v. Franklin Bank, 1 Met. 43;
Perkins v. Franklin Bank, 21 Pick. 483. These last two cases were decisions under a
statute which provides that on all promissory negotiable notes payable at a future
day certaui, in which there is not an express stipulation to the contrary, grace
shall be allowed ; but as this appears to be nothing more than an enactment of or
recognition of the common law on the subject, the authorities would apply equally
where there are no statutory provisions.

408 NOTES AND BILLS. [CH. XL

son \v hy the same should not be applicable to certificates of de-
posit payable on time ; but the law with reference to this last
kind of instrument is yet unsettled. (/!) Whether notes payable
to a particular person without the words " or order," are entitled
to grace or not, is likewise unsettled. («/) A similar imcertainty
exists as to sealed notes. (t;) The maker may stipuUite that a
note or bill shall be paid without grace. Such a stipulation may
be in any form of words which convey the idea that the instru-
ment is to be payable without grace, as by using the words in the
body or on the margin " without grace," " no grace," "free of
grace," or any other circumlocution which would indicate to the
holder that it is payable on the day fixed. (?^)

So in the case of an acceptance, wliere it is apparent from the
terms of the writing that the acceptor in designating the day of
payment intended to include the days of grace, the day men-
tioned is the peremptory time for presentment, without any ad-
ditional allowance. Thus, where a bill at sixty days' sight is
accepted Sei)tember 14, payable November 16, the demand must
be made on this last date in order to charge a drawer or in-
dorser ; if made three days later, he would be discharged. (.t)
The words, however, to have the effect of cutting off the days of
grace, should fairly express that intent without ambiguity. (y)

With regard to the method of computing the time, as has

(t) Sec Kilgorc v. Bulkley. 14 Conn. 362, supra, p. 402, note u.

(u) Grace is allowed in Eni^land, the note being considered a negotiable one within
the statute of Anne Smith v. Kendal, 1 Esp. 231, nom. Smith v. Kendall, G T. Ji.
123. Such would probably be the rule in New York. Downing v. Backcnstoes, 3
Caincs, 137 ; Goshen & Minisink Turnp. Road v. Hurtin, 9 Johns. 217 ; Dutchess
Cotton Manuf. v. Davis, 14 Johns. 238. But in Connecticut such a note, not being
considered negotiable within the statute of that State, is not entitled to grace. Avery
V. Stewart, 2 Conn. 69 ; Backus i'. Danforth, 10 Conn. 297.

(y) In Love v. Nelson, Martin & Y. 237, it was held that a scaled note was entitled t(
grace. But the contrary was held in Jarvis v. McMain, 3 Hawks, 10, and Fields v.
Mallett, 3 Hawks, 465. In both North Carolina and Tennessee, where these casea
were decided, scaled notes are put on tiie same footing as others by statute.

{ic) Sliiiiv, C. J., Perkins v. Franklin Bank, 21 Pick. 483.

(jr) Kcnncr v. Creditors, 19 Mart. La. ."itO, 20 id. 36, 1 La. 120. And if there is no
date to the acceptance it may be shown by parol. Ibid.

(y) Sec .sH/>r«, p. 407, notes p, (j. In Perkins v. Franklin Bank, 21 Pick. 4S3, the
note, dated December 7th, 183G, was payable in seven months, with interest " until due
and no innrcst after." On the margin were written the words, " Due July 7th, lb37."
It was contended that this amounted to a .stii>ulation that tiiere should be no graco
but the court iield otherwise.

CH. XI.] AT WHAT TIME DEMAND SHOULD BE MADE. 401^

already been remarked. (c) the date is always excluded. Thus,
in case of a note dated Jaiuiary 1st, payable in one month, ex
eluding the date, and including tiie last day of the month, the
note would be demandablc, without grace, on February 1st, and
witli grace, counting tliis date as the first day, demand sliould
be made on February 4th.

Tlie same method is used in computing the time when the
note is payable at a certain number of days after siglit or date.
Thus, in case of a note dated June 1st, payable at ten days
after date, excluding tlie date, tlie note would be payable June
lltli. Adding the tlu'ce days of grace, the note would be paya-
ble June 14tli, and payment should be demanded on that day.

Where a note is payable at a fixed date, as October 1st, the
days of grace are simply added, and consequently the demand in
such case must be made on October 4th. As we have already
secn,(ri) the word " month" in tlie law of notes and bills always
means a calendar month, and no allowance is to be made for
their different lengths. But where a note is made on the last
day of one month which has a corresponding day in the month
when the note is due, the day after this corresponding day is to
be considered as the first day of grace. Thus, where a note is
dated September 30th, payable in one month from date, it must
be demanded November 2d. (6) Where a note is dated on the
last day of a month which has no corresponding day in the
month when it is due, the doctrine of cij-pres (or '' as near as
may be ") applies, by which the last day in the latter month is
taken, as the nearest approximation, for the day before the first
day of grace. Thus, a note for one month, dated January 28th,
29th, 30th, or 31st, m\ist in ordinary years be demanded on
Marcli 3d ; and in leap years, if it is dated January 28th, it
must be demanded on March 2d, because in such case there is
a day in February corresponding to the day of the month on
which the note was made.(c) If a note has an impossible date,
as September 31st, where the time of delivery is not shown, the
note is considered as dated on the last day of the month, which

(z) Supra, p. 385, note v.
(a) Snjmi, p. 384, note s.
(i) See Wagner v. Kenner, 2 Rob. La. 120.

(c) See Wagner v. Kenner, 2 Rob. La. 120; where 6 Dalloz, Jur. du Roy., tit
EffeU Je Coinm., ^ 4, 2, is cited and approved ; Wood v. Mullen, 3 Rob. La. 395.
VOL. I. 35

410 NOTES AND BILLS. [CH. XL

ill the case supposed would be September 30th ; and, if payable
at six mouths from date, has been held demaudable on April
2d.{d) The precise day upon which a note or bill falls due and
is payable need not be averred in the declaration. It is suffi-
cient to state a presentment at the time of maturity according
to the tenor and effect of the instrument. (e) But if, on com-
parison of its terms and the time as stated under a videlicet, the
latter happens to be erroneous, it may be rejected as surplusage,
and the declaration will still be good.(/)

Where by special custom a demand may be made on any other
day than the third day of grace, such custom should be averred
and proved. (o")

A question has arisen, whether the maker of a note is liable to
be sued before the expiration of the last day of grace, and the de-
cisions are conflicting. In some States it has been held that a suit
brought on the third day was premature, the courts there adopt-
ing the general rule with reference to other contracts, that, where
a day is appointed for the payment of money, the payor has the
whole of the day down to the last moment in which to tender
the money. (i) But many courts have made a distinction in

(d) Wagner v. Kenncr, 2 Rob. La. 120, where a demand, on April 3d, was lield too
late, and the indorser was discharged.

{/) Bynner v. Russell, 7 J. B. Moore, 266, wiierc the declaration averred a pre-
sentment of a hill when it " became due and payable according to tlie tenor and effect
thereof, to wit, on March 31st, 1822." A special demurrer, assigning for cause that
March 31st was Sunday, was overruled, and judgment entered for the plaintiff. So,
" to wit, on Juno 2d, 1848," when the note was payable May ."ith. Frank j;. Townsend,
9 Humph. 724. In this last case the defendant pleaded iion assitmpsit. In Wells v.
Woodley, .5 How. Miss. 484, the averment was, "to wit, on Feb. 28th," when tho
note was payable Jan. 29th. Held sufficient, after judgment by default.

((f) Jackson v. Henderson, 3 Leigh, 196.

(0 Lord Kenijon, C. J., Leftley r. Mills, 4 T. R. 170; Wiggle y. Thomason, II
Smedcs & M. 4.')2 ; Walter v. Kirk, 14 III. 5."). In Randolph i'. Cook, 2 Port. Ala.
286, the point decided was, that the defendant might take advantage of the fact that
suit was brought on a note before it was due, by writ of error, after appearance and
judgment by nil elicit. The counsel for the plaintiff did not object that the suit was
prematurely brougiit, but only that the objection was taken too late. The court said
that it was unnecessary to examine the question whether the suit was premature or not.
But in a previous case, Crenshaw v. M'Kiernan, Minor, 29.'>, Crenshaw, J. said : " I
take it to be a correct doctrine, that, if iiayment is refused when a note or bill is pre-
sented on the day of payment, the holder is not bound to wait until the last moment of
that day, but may fortliwiih give notice, and take any requisite step to make the dinwer
and indorser liable." In Wiggle v. Thomason, 11 Smedcs & M. 4.')2, i*. was held t^at

CH. XI.] AT WHAT TLME DEMAND SHOULD BE JIADE. 411

reference to negotiable notes and bills, (j) resting upon two rea-
sons. One is, that a protest, which can clearly be made on the
third day, presupposes a default in payment, and if there has
been such default in the maker, the right of action must be con-
sidered as having accrued at that time,(/i;) Another reason given
is, that grace was originally a matter of indulgence, and might
be shortened, while in ordinary contracts it has always been the
right of the payee to make a tender at the last moment of the
day specified. (/)

The same question has been similarly decided with reference
to the liability of an indorser, there being no distinction between
the two classes of cases in this respect. (??t) One objection which

the maker oould not sue till after the third day, and Love v. Nelson, Mart & Y. 237,
is cited as an authority. The head note in this case lays down the same doctrine, but
nothing of tlie kind was decided. The decision is, that, in Tennessee, the maker of a
sealed note is entitled to <rrace. In Tiiomas v. Shoemaker, 6 Watts & S. 179, the
last day of grace was Sunday. An action brought on Saturday was held premature.
Sec Bank of Utica v. Wager, 2 Cowen, 712, 766, S(wage, C.J. In Osborn v. Moncure,
3 Wend. 170, it was held that the maker is not liable before the expiration of the third
day, and if he is sued before that time, that advantage may be taken of the error by
nonsuiting the plaintiff. In Hopping v. Quin, 12 Wend. 51 7, it was held that an attor-
ney' could not recover of a client costs or money advanced in a suit on a note brought
on the last day of grace. Savage, C. J. said : " It was the duty of the plaintiff to have
known that a suit could not be brought on the last day of grace, and his bringing such
suit must be imputed either to negligence or ignorance ; in either case it lays no
foundation for an action against his client, who has been the sufferer."

( /) The cases which decide that a maker may be sued before the end of the third
day are Wilson v. Williman, 1 Nott & McC. 440 ; McKenzie v. Durant, 9 Rich. 61 ;
Coleman v. Ewing, 4 Humph. 241 ; Greeley v. Thurston, 4 Greenl. 479, but the plain-
tiff was, in tiiis case, nonsuited, because there was no evidence of any demand ; Lmit
r. Adams, 17 Maine, 230 ; Veazie Bank v. Winn, 40 id. 62 ; Staples v. Franklin Bank,
1 Met. 43.

(k) Bailer, J., Leftley n. Mills, 4 T. R. 170. In Staples v. Franklin Bank, 1 Met.
43, Shaw, C. J. said : " On the whole, we think the weight of authority is in favor
of the conclusion to which we have come ; and if it were a new question, it seems to
follow, on legal principles, as a fair and legitimate conclusion from the established fact
that the contract of the acceptor or maker is broken by a neglect or refusal to pay on
demand, within reasonable time, on the last day of grace, that the holder may then
have his remedy by action."
. (/) Turlei/, J., Coleman v. Ewing, 4 Humph. 241.

iiii\ Thus, in the following cases, it was held that the indorser was liable to a
suit before the end of the third day. Park v. Page, at Nisi Prius, before Paisons,
C. J., in 1808, cited in 1 Met. 48; Shed v. Brett, 1 Pick. 401. See New England
Bank v. Lewis, 2 Pick. 125 ; City Bank v. Cutter, 3 id. 414, where a tender of the
amount of the face of a note, by the indorser, on the day succeeding the third day,
was held bad, because interest was not included. See Boston Bank v. Ilodgcs, 9 id.
42\j , Church v. Clark, 21 id. 310; Whitwell v. Brigham, 19 id. 117 ; Flint v. Rogers,

il2 NOTES AND BILLS. [CH. XL

has been urged against a suit against an indorser before the end
of the third day, which does not apply where the maker is sued
under similar circumstances, is, that in many cases the indorser
could not get the notice in time to be of any service to him.(rt)
But the answer to this is, that the holder, by presenting at the
proper time, and depositing the notice in the usual and proper
conveyance, has done all that could be required of him in the
way of exercise of due diligence ; that the contrary rule would
create great uncertainty, because the right of action would ac-
crue at different times, according to the distance of the party
sued, and the time must often be left to conjecture ; and if a

15 Maine, 67 ; Dennie v. Walker, 7 N. H. 199, by Upham, J., who said : "It may now
be considered as settled, that notice may be given, and suit brought against an indorser
on the last day of grace, after protest has been made, the note being then considered
dishonored." Manchester Bank v. Fellows, 8 Foster, 302. In Crenshaw ;,'. M'Kier-
nan. Minor, 29.5, an averment of demand on the maker on the third day, and of a
refusal at tliat time, was held, after verdict, to be a sufficient allegation that the maker
had not paid before suit was brought. In Bevan v. Eldridge, 2 Miles, 3.53, it was held
that an indorser was not liable till after the expiration of the third day. In this case,
Stroud, J. said : " If, then, interest can be charged in advance to the end of the last day
of grace, there can be no propriety in treating any party to a note as in default, in
respect to payment, until that day has expired." In Smith v. Bank of Washington,
5 S. & R. 318, the demand was made May 13th, and suit brought May 16th. By
the usual course of the mail, the notice could not have reached the defendant, au
indorser, until the 19th. Held premature. Gibson, C. J. said: "But I think it clear
that, whether notice be necessary only to enable the indorser to look to his concern?
with the drawer, or whether it be to apprise him that he has encountered an im-
mediate instead of a secondary liability, it is nevertheless a substantive part of the
plaintiff's title to bring the action. This was expressly decided in Hushton v. Aspin-
wall, Doug. 679, on great consideration, and, as Lord Mansfield tells us, against the
wishes of the court. l)y whom it was held, in a case exactly like the present, that
the want of an allegation of notice of non-j)ayment was fatal, even after verdict ;
and this on the ground that the title of the plaintiff was not merely set out defect-
ively, but that he had set out no title. Now, as tiie plaintiff's title must be com-
plete before suit is brought, it follows that the indorser must have notice l)cforc the
impetration of the suit ; or at least, that some fact be averred and jjrovcd that will
excuse the giving of notice altogether From certain facts the law raises a con-
clusive presumption of actual notice, but it is not so absurd as to raise it from facts
which negative all possibility that the ])resumplion accords with the truth of the case.

The notice, being for the benclit of tlie indorser, cannot be dispensed with ;

and it would be extremely absurd to suppose that any benefit could flow from il be-
fore there was a possibility of its having been received." But in King v. Holmes, 11
Penn. Stale, 4.")6, it was held that a notary might protest a note at any time after
3 I'. M., and claim his fees. In Castriipie ;;. Bernabo, fi Q. B. 498, the plaintiff was
nonsuited beciiusc the action was commenced at 5 P. M., and the notice could not,
by the usual course of the mail, have reached the defendant before 4 or 5.
(n) Sec the n-niark^ of Gilison, C. J., cited supra, note m.

CH. XI.] AT WHAT TIME DEMAND SHOULD BE MADE. 413

certain time is to be allowed to an indorser in which to receive
notice, the same time shonld be given him to pay the demand in;
because otherwise it would be saying that he was entitled to
receive the notice for his benefit, and at the same time declaring
that he should be precluded from taking any advantage from it.(o)
But it must be observed that it has been held that the maker
is oidy liable after a demand, when a demand is necessary, {/>)
which must be made at a reasonable time, (9) and an in-
dorser after the same, and also after notice has been deposited
where, according to the ordinary method of transportation, it
will reach him in due time.(r) With regard to what hour shall

(0) In Shed v. Brett, 1 Pick. 401, Parker, C. J. said: "The argument is, that
notice of the non-payment is essential to the phiintitF's right of action ; that it is neces-
sary to aver it in the declaration as a fact existing ; and that, as the case shows this
could not be true, the plaintiff has failed in an essential point. But this argument
proceeds upon tiie ground that there must be an actual reception of notice before tho
])laintiff can sue ; and this is certainly fallacious. If the putting the letter into tho
post-office is notice in itself, which wo have shown, then it was given before the com-
niencement of the suit. And it would be mischievous to decide otherwise, for every
plaintiff's right of action would commence at different times, according to the distance
of the party sued ; and the time of suing must be conjectured, as it cannot fee known
when the notice will be actually received. Besides, if the object of waiting be to give
the party opportunity to take up-flie note, there must be a sort of double usance, for
the holder must wait till his letter is received, and for a reasonable time afterwards for
the party receiving it to come and pay the money. Who would take a bill or note
remitted from New Orleans if this doctrine be correct ? And if the parties liable bo
beyond the sea, such instruments would be mere waste paper. If the bill should not
be accepted, or the indorsed note not paid, the unfortunate holder, with property be-
longing to the drawer or indorser before his eyes, must remain an idle spectator of the
scramble of other creditors for it, or suffer it to be witlidrawn by the debtor himself,
without the power of arresting it. This cannot be sound doctrine ; an averment of
notice will be sufficiently proved by showing that the steps necessary to give tlie notice
have been taken ; if subsequently received, it will relate to the time when it was sent;
if never received, the fact of having put it in tiie proper train is enough."

(/)) Greeley v. Thurston, 4 Greenl. 479 ; Vcazie Bank v. Winn, 40 Maine, 62. In
Fierce v. Gate, 12 Gush. 190, Shaw, G. J. said : " The rule in regard to notes like the one
in question is, that the note is payable at any time on actual demand, on the last day
of grace; and if such actual presentment and demand is so made, and payment is not
made, the maker is in default, and notice of dishonor may forthwith be given to the
indorser. But if no presentment or demand is made by the holder upon the maker,
the latter is not in default till the end of the business day." In Butler v Kimball, 5
Met. 94, it was held that the action might be maintained when tlie writ is made after
sunset, and delivered to the sheriff the next day, althougli there is no demand before
the writ is made.

(q) See the cases cited infra, p. 414, note s.

[r] Manchester Bank v. Fellows, 8 Fost. 302. In New England Bank v. Lewis,
Pick. 125, tJie action was brought before notice to the indorser, iliough it was received
35*

41-i NOTES AKD BILLS. [CH. XL

be deemed reasonable, the same rule would apply here as in
ordinary cases, (5) and the burden of proof is upon the holder to
show a demand at a reasonable hour,(^) and, in the case of an
indorser, after notice has been sent.(?<) Whether the law is the

by him on the same day, and had been put into the hands of the notary before the writ
was given to the sheriff. Held, that the suit was prematurely brought. See Stanton
v. Blossom, 14 Mass. 116.

(s) In Lunt v. Adams, 17 Maine, 230, the suit was brought after demand made at
8 A. M. Held premature. In Park v. Page, cited 1 Met. 48, and in Staples v. Frank-
lin Bank, 1 Met. 43, the writs were served at 11 A. M., and it was held that the suits
were properly brought. So in McKeuzie v. Durant, 9 Rich. 61, where the Avrit was
served at 4 P. M. Shed r. Brett, 1 Pick. 401, where the action was commenced in tlic
evening. In Whitwell v. Brigham, 19 Pick. 117, an acceptor for the drawer's accommo-
dation took up the bill on the second day, and commenced a suit against the drawer on
the third. Held not premature. As to what is considered a reasonable hour of the
day at which to make a demand, see infra, p. 4 1 7, note a, &c. It will be seen that, when
a note is payable at a bank, a presentment there at any time within banking hours is to
be considered reasonable. The same rule has been applied to the case under consid-
eration, and it has been held, in the following cases, that the maker or indorser of a
note payable at a bank was not liable till after the close of banking hours. Boston
Bank v. Hodges, 9 Pick. 420, where the hours were from 9 to 2, and an action brought
at 18 minutes past 9 was held premature. So Church v. Clark, 21 id. 310, wliere the
writ was served at 1 minute past 12 A. M. The demand on the cashier at tlic bank,
but after business hours, was held proper in Flint v. Rogers, 1.5 Maine, 67. In Staples
V. Franklin Bank, 1 Met. 43, an action against a bank on its own post-note, it was
contended that the bank was not liable till after the close of business hours, and that
the same rules applied as in case of a note payable there ; but S/iaw, C. J. said : " It
may be proper to make a remark on the point, that some of tiie cases in Massachu-
setts manifestly go upon the ground, that when a third person has accepted a bill or
made a note payable at a bank, or when, from circumstances, it may be inferred that
the parties intended that the note should be paid at a bank, the maker has the whole
of tiie usual time of banking hours to pay it. Tiiis proceeds upon the ground that the
|)arties have entered into an express or im])licd agreement that the note shall be so
paid and treated. But when the bank itself has undertaken to pay a sum on any given
day, they are bound, like any other promisor, to pay on demand on tiiat day; and
tlie only difference, in this respect, between a bank and an individual is this, that what
would be reasonable time for a demand in case of individuals is fi.xed, in case of a
bank, by their known usual hours of being open for business. This is the case in regard
to common bank-notes, and it would be most pernicious, in regard to them, to estab-
lish a different rule, or raise a doubt respecting it. And a post-note, when by the
lapse of time and the force of the contract it has become payable on demand, stands in
this respect on the same footing with a bank-note, which is payable on demand in its
terms."

(/) Vcazic Bank r. Winn, 40 Maine, 62.

(«) Manchester Bank v. Fellows, 8 Foster, 302, where Eastman, J. said : " If the suit
is commenced a day after the time that notice is given, or at any future time after
notice, the proof is readily made ; because, where the notice is proved, it hIiows for
itself to have been before suit; but where, as in this case, the suit is instituted on tho
day of tho notice, no such conclusion is apparent. The evidence docs not show that

CH. XI.] AT WHAT TIME DEMAND SHOULD BE JIADE. 415

same with reference to notes on wliich no grace is allowed, does
not seem to be settled. (;') We incline to hold, however, both on
reason and on what seems to be tl.e weight of authority, that a
note without grace may be demanded within business hours of
the day of maturity, and, if payment is refused, an action may be
brought against the maker, or notice be given to an indorser, and
an action brought against him, on the same day.(w) Tiie ques-
tion has never passed under adjudication in England, but in one
of the early cases we find a difference of opinion on the subject
between Lord Kenyon and Mr. Justice Buller.(a;)

the notice was given before the suit was commenced, and the court cannot presume it.
And in all such cases the plaintiff must prove that the demand and notice wore before
the suits were brought, otherwise it does not appear that they have a cause of action.
The plaintiffs in this case having produced no evidence showing that the notice was
put into tlie post-office at Boston before the writ was served, it does not appear that a
cause of action existed at the time of the commencement of the suit, and the action
necessarily fails."

[v) In Staples v. Franklin Bank, 1 Met. 4.3, Shaw, C. J. said : " A different con-
struction may perhaps apply when a note is payable without grace. As grace was
originally matter of indulgence and courtesy, and not of contract, it perhaps may be
contended that, although a debtor has the whole of the last day of the credit stipulated
for by contract to make payment, yet a different rule may apply to grace, which is not
part of the contract. So when the third day of grace frills on Sunday, as the right of
one or the other of the parties must yield, it shall be that of the one who claims indul-
gence, and not of him who claims of right; whereas, if a bond were to be payable on
Sunday, the debtor would have till the close of Monday to pay it. Some of the cases
appear to turn on this distinction." In Taylor v. Jacoby, 2 Penn. State, 495, an action
on a note where no grace was allowed, it was held that the note was not due, for tha
purpose of commencing suit or entering judgment, until after the termination of the
day of payment. It has already been seen, that when a note without grace falls due on
Sunday, it is not payable until the next secular day. Supra, p. 402.

(iv) In Staples i'. Franklin Bank, cited in the preceding note, the court appears to
incline to the views expressed in the text. ,

(x) Leftley v. Mills, 4 T. R. 170. In Colkett v. Freeman, 2 T. R. 59, it was held
that an express refusal in the morning to a holder to pay a bill constituted a complete
act of bankruptcy, though several of the jury, which was a special one, said that by the
practice of London merchants the payor has the whole day of maturity till five
o'clock, P. M., within which to pay. In Hume v. Peploe, 8 East, 168, a plea of a
tender of all the money due on a bill, after the day of payment, was held not to be a
good plea in bar, because it did not show a performance of the contract. So Poole v.
Tumbridge, 2 M. & W. 223, where Lord Ahinger said : " I will not say that if this case
arose, that the acceptor went on the day the bill became due to the house of the holder
for the purpose of paying it, and could not find him, but on a subsequent day, when he
found him, tendered him the money, I am not prepared to say that, in such case,
the rules of law ought to be pressed so far as to render the party liable to an action the
next day after the bill becomes due, and not to allow him to plead that tender, by which
means the proceedings of a court of law are made nothing else but machinery to

416 NOTES AND BILLS. [CH. XL

A note may be negotiated on the second day of grace, and the
holder will then be protected ; [y) but if negotiated on the third,
there is a conflict of authority on the question whether the note

increase costs." In Ex parte Moline, 19 Ves. 216, 1 Rose, 303, it was held that a de-
mand on the acceptor, at 11 A. M., and notice of non-payment to the drawer the same
niornini;, warranted the proof of the debt against the drawer, who had become bank-
rupt. In Staples v. FranlcHn Bank, 1 Met. 43, Shuiv, C. J. said : '• In a late work,
Byles on Bills, p 131, it is stated that the acceptor of a bill, whether inland or foreign,
or the maker of a note, should pay it on a demand made at any time within business
hours on the day it falls due, and if it be not paid on such demand, the holder may
instantly treat it as dishonored. But the acceptor has the whole of that day within
which to make payment ; and though he should in the course of that day refuse pay-
ment, wliich entitles the holder to give notice of dishonor, yet if he subsequently on
the same day makes payment, the payment is good, and the notice of dishonor be-
comes of no avail. This writer cites Hartley v. Case, 1 Car. & P. 555, 676, 4 B. & C.
339. The point was made in that case, that notice could not be given on the day the
note becomes due ; but the case went off on another ground, and no opinion was
given on this question. The passage cited appears contradictory to itself, inasmuch
as it declares that the note is due and payable on demand on the last day of grace,
and is dishonored if not then paid ; and yet that the maker and acceptor have tho
whole day to pay it in. It would seem that there could be no dishonor, unless the
maker had failed to comply with his contract ; and if he has failed to comply with iiis

contract, then, by a general rule of law, the holder has his remedy by action

It is probable, that, though the holder may have a strict right to proceed in all
respects as upon a dishonored bill on the last day, after demand, refusal, and notice,
yet it is so far the general practice to postpone notice and other proceedings till
the day following, that it is regarded amongst merchants as a right. That it seems
so to have been understood by men of business, appears by a remark of Mr. Ju.stice
Bidhr, in Colkett v. Freeman, 2 T. R. 59, 61 ; and also by an obiter dictum of Bolland,
B., in Webl) v. Fairmaner, 3 M. & W. 473, 474 (supra, p. 405, note /). But the case

of negotiable bills and notes was not then under consideration I'ossibly it

may be considered that the holder has a right to treat the bill as dislionored, after de-
mand and refusal, and even to commence an action, subject to be defeated and barred
in case the maker should pay the amount due at any time on the last day of grace ;
though it is dillicult to perceive how the holder can have a perfect right to treat tho
note as dishonored, by breach of the contract, and, at the same time, that the acceptor
can have a perfect right, by payment of the bill, to perform his contract, and save
himself from the consequences of such breach. In Hartley v. Case, 1 Car. & P. 556,
Ahhott, V. J., on a motion to show cause, says: ' I think notice of dishonor, given on
the day on which the bill is payable, will be good or bad, as the acceptor may or may
not afterwards pay the bill. If he does not afterwards pay it, the notice is good ; and
if he does, it of course comes to nothing.' This certainly implies that, after non-pay-
ment on demand, on any part of the last day, there is a breach of the contract of tho
maker, and no further demand is necessary to complete the holder's right against tho
maker, acceptor, and indorsers. But whether, after such breach, and before the closo
of the day, an action might be commenced against either, does not appear liy this case,
nor, as we believe, by any case decided in England " In Chitty on Bills, 274, 10th

(j/) Savings Bank v. Bates, 8 Conn. 505.

CH. XI.] AT WHAT TIME DEMAND SHOULD I5E MADE. 417

is dishonored. (s) We should eonsidcr the correct rule to be, that
where the note is payable generally, it is not dishonored until the
close of the day, and when payable at a bank, not until the close
of bank hours.

It is the usage of all our banks to consider notes and bills
discounted by them, or left with them for collection, whetiier
payable at the bank or generally, as dishonored at the close of
business hours, wliich are then tiio bank hours, on the day of
maturity. And the paper is then handed to a notary for demand
and protest. And undoubtedly this usage would determine the
rights and obligations of the parties in any case to which it
applied.

The hours within which presentment for payment and for ac-
ceptance should be made are the same in both cases. In the
case of paper not payable at a bank, demand may be made on the
payor personally, or on his authorized agent, at any reasonable
hour of the day, even so late as nine o'clock in the evening. (a)

Lond. cd., the question is discussed, whether the acceptor has the whole day or not
for payment. The author says that the hokler may treat the bill as dishonored on
the third day ; and tiiat this " appears now to be the established rule." In Castrique
t. Bernaho, 6 Q. B. 498, which was an action against an indorser, it appeared that the
notice was put into the mail the same day the action was commenced. It was held
that the plaintiff was bound to show that, in the ordinary course of the mail, the letter
would he delivered before the time of the commencement of the action.

[z) The note is held dishonored in Pine v. Smith, 11 Gray, and not dishonored

in Crosby v. Grant, 36 N. H. 275. The two cases rest probably on the difference be-
tween tlic time when the right of action commences in the two States.

(a) In Burbridge v. Manners, 3 Camp. 193, a demand was made in the forenoon, and
held good. Ex parte Moline, 19 Ves 216, a demand on an acceptor at 11 A. M., and
notice sent immediately, were held to warrant a proof of the debt against the drawer,
who had become bankrupt. Lord Eldon said : "I do not recollect any decision, that, if
an acceptor declares at 11 o'clock in the morning that he will not pay, notice of that to
the drawer is not good. If the law does not impose on the holder the duty of inquiring
again before 5 o'clock, it would be extraordinary that this information to the drawer of
an answer precluding any hope of obtaining anything by calling again should not have
effect." In Leftley v. Mills, 4 T. R. 170, BuUer, J. said : Bills of exchange "are pay-
able at any time on the last day of grace, provided that demand be made within rea-
sonable hours. A demand at a very early hour of the day, at two or three o'clock in
the morning, would be at an unreasonable hour ; but, on the other hand, to say that the
demand should be postponed till midnight, would be to establish a rule attended with
mischievous consequences." So Greeley v. Thurston, 4 Greenl. 479. In Dana v. Saw-
yer, 22 Maine, 244, where the maker was called up from iiis bed a few minutes before
midnight, the demand was held insufficient. S/icpleij, J. said : " Perhaps it might be proper
to admit an exception in this and the like cases, if it should appear from the answer
made to the demand that there was a waiver of any objection as to the time, or that

Vol. I.— 2 B

418 NOTES AND BILLS. [CH. XL

No fixed rule can be laid down beyond which a presentment will
be unreasonable and insufficient to charge an indorser. In gen-
eral, it should be made at such an hour that, having regard to
the habits and usages of the community where the maker resides,
he may reasonably be expected to be in a condition to attend to
ordinary business. Various other circumstances are to be taken
into consideration, such as the distance of the place of resi-
dence of tlie maker from the place where the note was dated,
and where the holder at maturity was residing, and the season
of the year when it fell due.(^) When a note or bill is payable
at a bank, or at a banker's, it must be presented within busi-
ness hours. (c) But if presented after that time, while any of tlie

payment would not have been made upon a demand at a reasonable hour. But there
is nothing in this agreed statement to show that payment might not have been refused
because the demand was made at such an hour that the maker did not choose to be dis-
turbed, or because he could not then have access to funds prepared and deposited else-
where for safety." In Farnsworth v. Allen, 4 Gray, 453, a note dated at Boston, falling
due in August, was presented at 9 P. M. to the maker at his residence, ten miles from
Boston, after he and his family had retired. The maker refused to pay. Held sulH-
cient. Sec Lunt v. Adams, 17 Maine, 230, infra, p. 420, note /; Park v. Page, infra,
p. 420, note e.

(b) Bic/elow, J., Farnsworth v. Alien, 4 Gray, 453, supra, note a. There are various
dicta to the effect that a presentment after " the hour of rest " would be unavailing.
Thus, in Barclay v. Bailey, 2 Camp. 527, Lord EUenhorough said : " If tiie presentment
had been during the hours of rest, it would have been altogether unavailing." So Best,
C. J., Triggs V. Newnham, 10 J. B. Moore, 249. In Wilkins v. Jadis, 2 B. & Ad.
188, Lord Tcntcrden, C. J. said : " A presentment at 12 o'clock at niglit, when a person
has retired to rest, would be unreasonable." So Shepley, J., Dana v. Sawyer, 22 Maine,
244. In Cayuga Co. Bank v. Hunt, 2 Hill, 635, Cowen, J. said, that business hours
"generally range through the whole day down to bedtime in the evening." But this
cannot mean, that the mere fact that the maker had retired to bed in the evening before
the demand would make it unreasonable. Tlius, in Farnsworth v. Allen, 4 Gray, 453,
supra, note a, Digelow, J. said : " It is quite immaterial that the maker and his family
had retired for the night. The question whctiier a presentment is within reasonable
time cannot be made to depend on the private and peculiar habits of the maker of the
note, not known to the holder; hut it must be determined by a consideration of the
circumstances which, in ordinary cases, would render it sca.sonable or otherwise,"

(c) Parker v. Gordon, 7 East, 385, where a demand at 6 P. M. was held insufiicient,
the banker's hours ending at 5. Lord KllcHhorowjh, C- J. : " If a party choose to take
an acceptance, payable at an appointed place, it is to be presumed that he will inform
himself of the projjcr time for receiving payment at such place, and ho must apply ac-
cordingly ; and if by going there out of due time the bill be not paid, it is his own
fault, and he cannot proceed as upon a dishonor of it ; at least not without goitig a
step further, and presenting it for payment to the party liimself ; otherwise it is fishing
for the dishonor of a bill made payable at a banker's, to present it there for payment at
a time when it is known in the usual course of business that it cannot be paid" So in

CH. XI.] AT WHAT TIME DEMAND SHOUIJ) BE MADE 419

officers arc present to give an answer at the time of the de-
mand, it will be sufficient. (f/) There is this difference, also,
between a demand on the payor at his residence, and one
at his place of business ; in the former case it may be made
at any hour of the day or evening when he may reasona-
bly be expected to be able to attend to business ; (<?) but if

Elford V. Teed, 1 Maule & S. 28, a presentment by a notary's clerk, between 6 and 7
P. M., was held insufficient, and that no presumption of a prior presentment within
bankin<5 hours could be made from the fact that demand was made by the clerk. Sec
Boston Bank v. Hodges, 9 Pick. 420; Church v. Clark, 21 id. 310; cited supra, p. 414,
note s. Where, by the usage of a bank at which a note is made payable, the payor is
allowed until the expiration of banking hours for payment, a demand before that time
is insufficient, unless the note is permitted to remain in the bank till the close of busi-
ness hours. Planters' Bank v. Markham, 5 How. Miss. 397 ; Harrison v. Crowder, 6
Smedes & M. 464. In Whitaker v. Bank of England, 6 Car. & P. 700, 1 Cronip. M.
& R. 744, an action against the bank, by a customer who had accepted a bill payable
there, for not honoring tlie acceptance, it was proved that the bill was presented at 9
A. M., and left till 11 A. M., when payment was demanded. A demand was again
made by the notary at 6 P. M., after banking hours. The court held that the note
must be considered as continuing in a course of presentment from 9 to 1 1 ; that if the
bank had funds at a reasonable time before 11, they were liable ; but that they were not
liable to pay after banking hours, even though they had funds, and had a person sta-
tioned there who answered, " Not sufficient effects." A demand on a bank of a note in
which the bank itself is the maker, made before 11 A. M., was held good. Staples v.
Franklin Bank, 1 Met. 43, supra, p. 414, note s.

(d) Garnett v. Woodcock, 1 Stark. 475, 6 Maule & S. 44, where the bill was present-
ed between 7 and 8 P. M., and a boy returned the answer, " No orders." Lord Elkn->
horowjh said : " Bankers do not usually pay at so late an hour ; but if a person be left
there who gives a negative answer, there is no difference between the case and that of
a presentment at a merchant's. I think it is perfectly clear, that if a banker appoint a
person to attend in order to give an answer, a presentment would be sufficient if it
were made before 12 at night. In general there are two presentments, one in the
morning, and the other in the evening ; but if there be a presentment in the evening,
and the party is ready to give an answer, he does all that is necessary. The bank re-
turned an answer by the mouth of its servant, and non constat but that he was stationed
there for the express purpose." Henry v. Lee, 2 Chitty, 124 ; Shepherd v. Chamber-
lain, 8 Gray, 225 ; Flint v. Rogers, 15 Maine, 67 ; Commercial Bank v. Hamer, 7 How.
Miss. 448, where the notary, finding the front door shut, entered by the back door
and demanded payment of the teller, who said that there were no funds ; Cohea v.
Hunt, 2 Smedes & M. 227; Goodloe v. Godley, 13 id. 233; Bank of Syracuse v.
HoUister, 17 N. Y. 48, where the paying teller, being a notary, presented the note
to himself outside the bank doors, which were shut; Bank of Utica v. Smith, 18
Johns. 230.

(e) In Barclay v. Bailey, 2 Camp. 527, presentment was made at the place desig-
nated as the acceptor's residence, at 8 o'clock, P. M. An answer was given, that the
acceptor had become bankrupt, and had removed. The defendant, the drawer, proved
that he had stationed a person at the house, to take up the bill, from 9 A. M. to 4 P. M.
Held, that the demand was sufficient.^ Lord Ellenbcrougk said : " I think this present-

420 NOTES AND BILLS. [CH. XI.

demand be made at the place of business, it must be made within
the usual and ordinary business hours. (/) But no objection
can be made to the demand at either place at any hour, if the
payor had his agent there at that hour to make answer to the
demand, (o")

ment sufficient. A common trader is different from a banker, and has not any peculiar
hours for paying or receiving money. If the demand had been made during the hours
of rest, it would have been altogether unavailing, but eight in the evening cannot be
considered an unreasonable hour for demanding payment at the house of a private in-
dividual who has accepted a bill." So Wilkins v- Jadis, 2 B. & Ad 188. In Park v.
Page, at Nisi Prius, before Parsons, C. J., in 1808, cited 1 Met. 48, a demand before
11 A. M. was held good. See the cases cited supra, p. 418, note c.

( f) Shed V. Brett, 1 Pick. 401. This would only apply where there are regularly
established business hours. See Dana v. Sawyer, 22 Maine, 244. In England it
would seem that the hours within which demand may be made at any other place than
the bank or a banker's may extend so late as 7 or 8 P. M. Thus, in Morgan v.
Davison, 1 Stark. 114, Lord Ellenhorough held that a demand at a counting-room
between 6 and 7 P. M., when no one was present but a girl to take care of it, was
sufficient ; as " the hour was not an improper one, and the holder might reasonably
expect to find the party in his counting-house at that hour. In Triggs v. Newnham,
I Car. & P. 631, 10 J. B. Moore, 249, a presentment of a bill payable at an attorney's
office at 8 P. M. was held sufficient. In Lunt v. Adams, 17 Maine, 230, demand
was made on the maker at his store at 8 A. M. Held insufficient. Shcpley, J. said :
" There may be little difficulty in towns and cities, where there arc business on bank-
ing hours, in deciding that a demand should be made during those hours. But in
places where no particular hours are known for making and receiving payments there
is more difficulty in determining what would be a reasonable hour for this purpose. It
may often happen that the party having a payment to make would appropriate the
earlier part of the day to obtain the means, either by collecting or by procuring a loan
from a bank or from some person in a neighboring town. To establish a rule that
would deprive him of that opportunity, and subject him to a suit, and that would ren-
der him liable to have his business broken up while thus employed, might justly be
regarded as unreasonable. Tiie general rule being that the party has all the day to
make his payment, that in relation to bills and notes should not be so varied as to
prevent his having a fair opportunity to make arrangements and provide the means of
payment before he is subjected to a suit. In this case the demand was made at an
hour so early as to deprive him of that opportunity, and it was not, therefore, made at
a reasonable hour." In Cayuga Co. Bank v. Hunt, 2 Hill, 63,'j, Cowen, J. said, that
business hours, "except where the paper is due from the bank, generally range through
the whole day down to bedtime in the evening." But this, it is conceived, would vary
according to the custom of each place.

{g) See the cases cited supra, note d. Where the payor and payee arc willing, the
one to make and the other to receive payment at any hour, and the payor is to acquire
some right as against a third party on paying, such third party cannot object to the
demand because it was made at an unreasonable hour. Thus, in Whitwell v. Brig-
ham, 19 Pick. 117, the acceptor of a bill for the accommodation of tlie drawer, having
paid the bill on the second day of grace, commenced a suit again.«t the ilrawcr at <>
o'clock, A. M. ; and the suit was held not to be i»remature, on flie ground ilmi tl,e
I)ayment might a,s well have been made at any previous hour of the third (la\

CH. XI.] AT WHAT PLACE DEMAND SHOULD BE MADE. 421

It may here be remarked, that a notary's certificate of present-
ment, which does not state the time of day, carries with it the
presumption that the demand was made at a proper hour, when
nothing appears to the contrary. (A)

SECTION VI.

AT WHAT PLACE DEMAND SHOULD BE MADE.

The principles of law applicable to the question, where the
demand should be made, are very different in case of a note or
bill payable generally and one in which a place of payment is
specified. We will first consider the rule with reference to notes
in which no place is mentioned for payment.

We should say that, in general, a personal demand would be
sufficient, if made on the maker or acceptor at any place where
he may reasonably be expected to be in a condition to pay ; and
if made in any other place, — such, for instance, as the street,
— it would usually be good, unless objection were made to pay-
ment because the place was an improper one, or some similar
reason were given for the refusal, (i)

But a personal presentment is not necessary ; (j) and in case
such a one is not made, in the absence of circumstances which
amount to an excuse for demand, that demand must be made
where the maker resides, or at his usual and ordinary place of
business. (A;)

(h) Cayuga Co. Bank v. Hunt, 2 Hill, 635; De Wolf r. Murray, 2 Sandf. 166.

(i) Supra, p. 372, note z. In Baldwin v. Farnsworth, 1 Fairf. 414, presentment \va«
made to both promisors of a joint and several note, made payable at their dwelling-
houses, at the bam-yard of one of the makers. Held sufficient, as they " made no objec-
tion, and intimated no readiness to pay in the house."

(j) The contrary is stated in Duke of Norfolk v. Howard, 2 Show. 235, supra, p.
371, note y, but does not seem to have been followed. In Saundcrson v. Judge, 2 H.
Bl. 509, it is said that " it is not necessary that a demand should be personal, and il
is sufficient if it be made at the house of the maker of tlie note." So in M'Gruder v.
Bank of Washington, 9 Wheat. 198, Johnson, J. said : " A demand on the maker is,
in general, indispensable, and that demand must be made at his place of abode or
place of business. That it should be strictly personal is not required. It is enough if
it is at his place of abode, or generally at the place where he ought to be found."

(k) In Sussex Bank v. Baldwin, 2 Harrison, 487, it was contended that the de-
Viand ought to have been at the maker's house ; but Dayton, J. said : " It appears

VOL. I. 36

422 NOTES AKD BILLS. [CH. XL

It is clear that a demand at the place of business, without any
at the place of abode, is sufficient,(/) and this ordinarily would
be the safest and most proper place to present the note. It is
said that a demand at the maker's house would be equally
good,(m) but it may be doubted whether this is not subject to
some qualification.

by the evidence that the oflBce in question was the regular place of business of the
maker ; and I have no doubt where a person has an office, or known and settled place
of business for the transaction of his monied concerns, whether he be a banker, broker,
merchant, manufacturer, mechanic, or dealer in any other way, a presentment and de-
mand at that place, as well as a presentment and demand at his residence, is good in
law. It must not, however, be a place selected and used temporarily for the transaction
of some particular business, as settling up some old books or accounts merely, but
his regular and known place of business for the transaction of his monied concerns.
The counting-room of a banker or merchant may be a proper place for a demand,
though the manufactory or workshop would not. Yet if the manufacturer or mechanic
have an office or known place of business for the purpose aforesaid, a good demand
may be made there." In West v. Brown, 6 Ohio State, 542, Bowen, J. remarked :
" It is said that the demand ought to have been made at the maker's family residence,
and could not be made elsewhere, as he had no well-established business office. It
seems that he occupied a room at Harding's, where he directed calls to be made, and
where he received them. By his own acts and declarations he authorized the place to be
known as his office for transacting business. He apprised the public that he could be
found there, that ' word left there would find him.' He claimed no other business loca-
tion. He gave no directions or authority for calling on him for business purposes at
his residence. His desire was to have an office for doing business, wlicrc he might con-
veniently and with certainty be found, and a selection of such place he accordingly
made at Mr. Harding's, where he was sought i)y the notary public, but when applied for
happened to be out. The object of the visit, however, was fully cxi)lained to those
who were found in the office. We are satisfied that reasonable diligence in this case
was used by the holder of the note to obtain payment from the maker, and that the
claim that no demand of payment was made of him is not well founded."

(I) See the cases cited supra, note k; also Nott v. Beard, 16 La. .308.

(wi) In Sliamhurgh v. Commagere, 10 Mart. La. 18, Porter, J. said: "A man's resi-
dence is tlie place where it is jn-csunied he is to be found, and has funds to meet the
demand, and there is no obligation on the holder to seek for him elsewhere." In Oak-
ey V. Beauvais, 1 1 La. 487, Carletou, J. said, that demand must be made personally, or
at the domicil of the maker, to bind an indorser. By "domicil," it is presumed "place
of residence" at the time of maturity was intended. In Deyraud i'. Banks, IG I^a.
461, the iirotest stated that the notary demanded payment at the domicil of the maker,
and w;us answered that there were no funds there to pay it. Held sufficient evidence
of a demand to charge the maker and indorser. So in Stivers v. Prentice, .1 B. Mon
461, it was held that a "presentment of a bill at tlie dwelling-house of the acceptor,
in the absence of any proof of a special usage to the contrary, and he not being a
liHiiker. was sufficient; and especially as tiiere was one there wiio answered for him,
that no provision had been made for jjayment." In Story on Bills, ^ 2.36,351, Prom.
Notes, (j 2.35, it is said, where the maker or acceptor lives in one town and does busi-
ness in another, or where he resides in one part of a town and his place of business is
anoliicr part, that the holder has his oi)ti()n at which to present, and that a demaad at

CH. XI.] AT WHAT PLACE DEMAND SHOULD BE MADE. 423

Thus, where tlie maker lias a well-known and long-established
place of bushiess, where he is in the hahit of transacting- his
financial concerns, and where a demand might lie made, present-
ment of a note, if of any considerable amount, should, it is be-
lieved, be made here rather than at his residence ; and in the
absence of other circumstances, it could hardly be deemed using
due diligence to demand the note at the latter place. But we
know of no authority for this.(rt)

If the maker has a place of residence, but none for the trans-
action of business, demand should be made at the former. Thus
where, at the time a partnership note fell due, the firm had been
dissolved, a presentment at their former place of business was
held insufficient ; it appearing that one of the partners was, at
the time of the maturity of the note, residing in the same town,
and tliat his house might have been found by the holder without
much difficulty. (o)

either would be sufficient. But in a note the learned author remarks that ho has found
no case in point, but cites Chitty on Bills. In the latter work, p. 250, 10th Lend, ed.,
it is stated that "presentment should be to the drawee of the bill or the maker of the
note at his residence."

(n) This refers to a presentment which is not personal. In West v. Brown, 6 Ohio
State, 542, supra, note k, the maker had a well-known place of residence, and a desk-
room, in an office in company with others, where he transacted business. A demand at
the latter place while the maker was out was held sufficient. In Lannsse v. Massicot,
3 Mart. La. 261, the maker, four months before the maturity of the note, was turned
out of his doniicil, which was sold on execution. He went with his family to his
father-in-law's, but he spent two months at his brother-in-law's to attend to his business,
A demand at the latter place was held sufficient to charge an indorser. " This demand
must either be made of the maker of tiie note personally, or at the place of his residence.
But in this particular instance it appears to the court that the maker had no fixed
place of residence anywhere when the notes became due, and that the house in which
he spent the half of his time to attend to his business in the city was more to be consid-
ered as the place of his residence, ^?• such purposes, than the plantation of his father-in-
law where his family had a temporary asylum."

(o) Granite Bank v. Avers, 16 Pick. 392, Shaw, C. J. said: "The firm of Boor &
Co. consisted of Poor and Breeden. They had failed and given up their place of busi-
ness, and the same place had been let to strangers, between whom and Poor & Co. there
was no ])rivity, and no inquiry was made except at that place, and there the notary was
informed tliat Poor & Co. had failed and gone out of town. But the information was
not correct. By referring to the name of Samuel Poor & Co. in the directory, it would
have t)een found that Breeden was the partner indicated by the word Co., and by ref-
erence to the name of Breeden it would have been found that he had a domicil in
town ; and it is now found that he was, in fact, residing in town. It is no excuse for
want of such Di^fsentmcnt and demand that the promisors had failed, as the plaintiffs
cannot recover without proof of demand and notice, or some fact which will excuse

42-4 NOTES AXD BILLS. [CH. XL

With regard to the conduct necessary to be pursued by the
holder where the maker's house or pUice of business is closed, or
where he has removed, absconded, or has died, or has no place
of business or residence, reference may be had to a subsequent sec-
tion on excuses for non-demand, where this subject is treated. (/;)
And it will be sufficient here to remark, that in such cases, where
any demand at all is necessary, the maker's last usual plac^
of abode or business is the place at which presentment is to be
made.

Where a note is payable generally, the parties may agree upon
the place where it shall be presented, and parol evidence is ad-
missible to prove such agreement ; (q) and where a maker by his

the want of a demand ; and as the proof fails of showing any demand, or any legal
excuse for the want of it, the plaintiffs are not entitled to recover." In Packard v. Lyon,
5 Ducr, 82, a note had been deposited in a bank for collection ; demand was made there,
with inquiry as to the residence of the maker. She was a married woman. Her name
was not to be found in the director}-. It appeared that she was, at the time, keeping a
boarding-house in the chy. Held insufficient, and the indorser was discharged.

(p) Infra, chapter on Excuses.

(q) Pearson v. Bank of the Metropolis, 1 Pet. 89. Maisliull, C. J. said : " But this
is not an attempt to vary a written instrument. The place of demand is not expressed
on the face of the note, and the necessity of a demand on the person, when the parties
are silent, is an inference of law which is drawn only when they are silent. A parol
agreement puts an end to this inference, and dispenses with a personal demand. The
parties consent to a demand at a stipulated place, instead of a demand on the per.son of
the maker; and this does not alter the instrument so far as it goes, but su])plies extrin-
sic circumstances, which the parties are at liberty to supply The indorser under-
takes conditionally to pay if the maker docs not, and this imposes on the holder the
necessity of taking the proper steps to obtain payment from the maker. This contract
is not written, but i-; implied. It is, that due diligence to obtain payment from the maker
shall be used. When the parties agree what this due diligence shall be, they do not
alter the written contract, but agree upon an extrinsic circumstance, and substitute that
agreement for an act which the law prescribes only where they are silent." See Thonip-
son r. Ketcham, 4 Johns. 285. But Thompson, C. J., in Anderson c. Drake, 14 id. 114,
referring to Thompson v. Ketcham, said : " The note was dated at Montego Bay, yet
it was not deemed payable there ; otherwise, parol evidence would have been inadmis-
sible to prove it was payable at New York. Such evidence would have been re-
pugnant to t!ie written note, if the inference of law was that it was payable at Mon-
tego Bay" So in Pierce v. Whitney, 29 Maine, 188, Shcplci/, J. said: "The first
cause of complaint presented by the bill of exceptions is, that the counsel for the plain-
tiff was not jK'rmitted to make an argument to the jury to show that the note, by tho
iind(!rstanding and agreement of the |)arties, or at least on the part of tlie maker, was
to be paid in Boston. In doing so the presiding judge acted corrci'tly. It had already
been decided that the note was not made payable in the city of Boston, because it ap-
peared to have been made and dated there. Parol evidence cannot be received, or have
the effect to show, that n note not made payable at any particular ]tlace was, in fact,
agreed to be payable at a jjarticidar place."

CH. XI.] AT WHAT PLACE DEMAND SHOULD BE MADE. 425

directions or acts has induced the holder to make the present-'
ment at any place in good faith, he would be estopped from
objecting to the demand on the ground that the place was an
improper one.(r) A presentment at the place thus appointed is
also sufficient to charge an indorscr.(5) The law with reference
to altering a note or bill by the addition of a place of payment,
either in the body or by way of memorandum, will be consif*
ered hereafter.

We have already seen the conflict which has existed in the
English cases with reference to acceptance and notes payable
at a specified place, and that the statute 1 <fe 2 Geo. IV. c. 78,
was passed to obviate the difficulty. (/) We will now consider
the law of that country with reference to the liability of the ac-
ceptor.

By the terms of the statute, an averment and proof of demand
is necessary when the bill is accepted payable at a particular
place " only, and not otherwise or elsewhere." It is not neces-
sary, however, to use all these words, " and not elsewhere " hav-
ing been held to make an acceptance special and conditional ; (u)
that is, to require demand at that place. Tlie same rules would
doul>tless apply where the bill was drawn payable at a specified
place only, and not elsewhere, and accepted generally. (f)

An averment and proof of demand at the place is not neces-
sary where a bill is accepted payable at a particular place with-
out the exclusive words, (ly) nor where a bill is drawn payable
under like conditions, and accepted generally. (.r) Tiie acceptor
of a bill, accepted payable at a specified place, as, for instance, at
a banker's, without the words " only, and not elsewhere," will

(r) Sussex Bank v. Baldwin, 2 Harrison, 487, by Dayton, J.

(s) Sussex Bank v. Baldwin, 2 Harrison, 487 ; State Bank v. Hard, 12 Mass. 172.

(t) Sdpra, p. 308, notes.

(«) Higgins V. Nichols, 7 Dowl. 551.

(v) Infra, note w.

(iv) In Ilalstcad r. Skelton, 5 Q. B. 86, 2 Dowl. n. s. 69, the declaration stated
that the defendant accepted the bill '• payable at A. & Co.'s," and that he promised to
pay it " according to the tenor and effect thereof." A demurrer, that the bill was not
allc'^cd to have been presented at A. & Co.'s for payment, was overruled as frivolous.
It will not be a variance to declare upon such a bill as payable at the place mentioned.
Blake V. Beaumont, 4 Man. & G. 7, 4 Scott, N. R. 617, 1 Dowl. n. s. 697.

(x) Selby V. Eden, 3 Bing. 61 1, 11 J. B. Moore, 511 ; Fayle v. Bird, 6 B. & C. 531,
•2 Car t V. 303, 9 Dow. &. H. 639.
3G*

426 NOTES AND BILLS. [CH. XI.

still remain liable without any presentment at the place, though
he had funds with the banker sufficient to meet the acceptance,
and by the failure of the latter had lost the money, (y)

The liability of the drawer and indorser of a bill has not been
altered by the statute. (z) Therefore, if the bill is drawn payable
at a specified place, and accepted so payable, it is necessary both
to aver and prove a presentment there, to charge tliem.(«) But
inasmuch as, in an action against them, if the bill has been ac-
cepted payable at a certain place, without being drawn in that
manner, no acceptance at all need be stated, (6) a presentment at
the place need not be averred, (c) but it should be proved. (^/)

iy) Turner v. Hayden, 4 B. & C. 1, 6 Dow. & R. 5, Ryan & M. 215; Scbag v.
Abitbol, 4 Maule & S. 462.

(s) The statute "is confined in its operation to the case of acceptors alone." Tindal,
C. J., Gibb V. Mather, 8 Bing. 214, 221.

(a) Chitty on Bills, 10th Lond. ed., 375. In Boydell v. Harkness, 3 C. B. 168, where
the bill was drawn payable in London, Maule, J., interrupting counsel, said : '" Tho
necessity of a distinct allegation of presentment in London, if any exists, arises here
from the fact of there being a direction in the bill, on the part of the drawer, to pay tho
bill there. If the drawer directs the drawee to pay the bill at a particular place, the
liability of the drawer and iudorsers arises only on the drawee's failure to pay upon tho
bill being presented to him at the place indicated." The case itself decides that, since
the venue was laid in London, a general allegation of presentment was .sufficient, under
the rule of Hilary T. 4 Wm. IV. r. 8. In Lyon v. Holt, 5 M. & W. 250, the head
note reads : " Where a bill is drawn payable to the order of the drawer at a particular
place, it seems that a declaration against the drawer or indorser, alleging a presentment
generally, is sufficient after verdict." In Byles on Bills, 168, note x, this is doubted, and
dicla in Boydell v. Harkness, 3 C. B. 1G8, would also seem somewhat inconsistcn'^
with it.

(b) Jones V. Morgan, 2 Camp. 474; Tanner v. Bean, 4 B. & C. 312 ; Bai/hi/, B.,
Parks V. Edge, 1 Cromp. & M. 429. And if alleged, need not be proved. Tanner v.
Bean, 4 B. & C. 312 ; contra, Jones v. Morgan, 2 Camp. 474.

(c) Parks v. Edge, I Cromp. & M. 429, 3 Tyrw. 364, an action against an indorser.
The bill was accepted payable at a certain place. Harris v. Packer, 3 Tyrw. 370, note,
infni, note d.

{d) Gibb V. Mather, 8 Bing. 214, 1 Moore & S. 387, 2 Cromp. & J. 254. In an ac-
tion by an indorser against the drawer of a bill, accepted payable at a banker's, tiio
declaration did not state any acceptance, but only a presentment to the acceptor, and
his refusal to pay. The proof was presentment to the clerk of the banker at the clear-
ing-house. Held, that the presentment was sufficiently proved. Harris r. Packer, 3
Tyrw. 370, note. A presentment of a bill accepted payable at a banker's to his clerk
at the clearing-house is sufficient. Reynolds ?'. Chettle, 2 Cam]). 596. An avcrnn iit that
a bill acce[)lcd pnyableata banker's was, when due, presented to the banker's for payment
occordin}^ to tlic tenor thereof, and that tlie banker, an acceptor, refused payment, slial 1 bo
supported iifier jud^iment on a sham ])lea. Hulfam v Ellis, 3 Taunt. 415. So in an a<(ion
against an indorser of a i)ill, an averment of presentment to tho banker and acccpt(>r mc-
cording to the tenor of the i)ill was held sufficient upon special demurrer, assigiiiinj for

CH. XI.] AT WHAT TLACE DEMAND SHOULD BE MADE. 42T

The liability of the maker and indorscr of a note is also un-
chauged by the statute. (e) The rule on this point is, that where
the place is mentioned in the body of the note, presentment must
both be averred and proved. (/) But if the place is stated in a

cause that no presentment at the liouse was averred. Bush r>. Kinnear, 6 Maule & S. 210.
Where a bill is drawn, payable to the order of tlie drawer at a particular place, it seems
tliat a declaration against the drawer or indorscr, alleging a presentment, generally is
sufficient after verdict. Lyon v. Holt, ,5 M. & W. 2.50. An allegation of presentment
to the acceptor is proved by evidence of presentment at the place specified. Hardy v.
Woodroofe, 2 Stark. .319 ; Giles v. Bourne, 6 Maule & S. 73, 2 Chitt. 300; Wilmot
(;. Williams, 8 Scott, N. R. 713. These were actions against the drawers of bills ac-
cepted payable at a banker's. The same has been held where the bill was directed to
the drawee at a certain place, and accepted by him generally. Hine v. AUely, 4 B. &
Ad. 624. But in such case no allegation of presentment to the acceptor is necessary.
It is sufficient if there is an averment of due presentment at the place. De Bengareche
V. Pillin, 3 Bing. 476, 11 J. B. Moore, 3.i0 ; Hawkey v. Berwick, 4 Bing. 13.5, 12 J.
B. Moore, 478, 1 Younge & J. 376, an action against an indorser, where it was also
held that a presentment to the banker was not necessary. So Philpott v. Bryant, 3 Car.
&, P. 244, 4 Bing. 717, 1 Moore & P. 754, where the acceptor had died before the ma-
turity of the bill. In Benson v. White, 4 Dow, 334, a declaration against the acceptor
stated that payment was demanded at the place where the bill was made payable, with-
out averring a refusal, but in conclusion stated that the acceptor had not paid any of the
sums mentioned. Judgment was entered for the plaintiff, and on a writ of error, brought
for want of an averment of a refusal, the judgment was affirmed in the House of
Lords. See to the same point Butterworth i'. Despencer, 3 Maule & S. 1 50, infra, notey!

(e) Supra, note 2:, Parke, B., Emblin v. Dartnell, 12 M. & W. 830; Pollock, C. B.,
Spindler v. Grellett, 1 Exch. 384.

(/) Sandjjrson v. Bowes, 14 East, 500; Dickinson v. Bowes, 16 id. 110; Howe v.
Bowes, id. 112, 5 Taunt. 30 ; Emblin v. Dartnell, 12 M. & W. 830, where a count in a
declaration was held bad after verdict, for omitting to allege a presentment at the place ;
Sands v. Clarke, 8 C. B. 751 ; Vander Donckt v. Thellusson, id. 812, where the note
was made in Belgium, in the following form: "A trois mois de date je payerai a
I'ordre de Mens. F. Vander Donckt la somme de cinq cent francs, valeur recue comp-
tant. Accepte', bon pour cinc} cent francs, payable a 1* fin d'Octobre, 1843. Chez
M. Legrelle. C. Thellusson." Held, that this was to be considered as a note payable
at a specified place ; that the words " Chez M. Legrelle" could not be treated as a
mere memorandum, because they were separated from the preceding ones by a full pe-
riod ; and that, by the law of England, there must be a presentment at the place named.
The defendant objected that there was a variance, because the declaration described the
note generally, and that there was no averment of presentment at the place. The
plaintiff introduced evidence to show that, by the law of Belgium, a presentment at the
place was not necessary. The judge directed the jury to find for the plaintiff, if they
believed the law of Belgium to be as stated, and they found a verdict in accordance
with it. New trial denied. Sjjindler v. Grellett, 1 Exch. 384. In this case the dec-
laration stated that the defendant made his promissory note, and thereby promised to
pay to the plaintiff "by the name and addition of Miss Jessie Hope, at 10 Duncan
Street, Edinburgh," the sum of £ 200. Averment, that the plaintiff was always ready
and willing to receive the said sum, according to the tenor and effect of the note, of
which the defendant had notice. Breach, non-payment. Held, on general demurrer,

428 NOTES AND BILLS. [CH. XL

memorandum at the foot of the note, beneath the maker's signa-
ture, this is treated as only directory, and not a substantive part of
the contract, and presentment at that place is not essential. (o-)
The law with reference to altering a note or bill by the addition
of a place of payment, either in the body of the instrument or
by way of memorandum, will be found on a subsequent page. (A)

that this was a note payable at a specified place, and that the declaration was bad for
not averring a presentment at that place. Rolfe, B. : " The ground of demurrer is,
that the note appears, by the declaiation, to have been made payable at a particular
place, and there is no averment of presentment at that place. First, it is said that such
is not the true construction of the note, and that the words ' at 10 Duncan Street '
are merely descriptive of the person of the payee. But it is impossible to torture the
words to any such meaning, without endeavoring to make obscure that which is per-
fectly plain. Secondly, it is said that it is not necessary to aver a presentment, be-
cause the note is not negotiable; and Wain v. Bailey, 10 A. & E. 616, is relied on
(which decided that, where the instrument is not negotiable, the maker is bound to
pay it without its production, and therefore it is no answer to say that he was always
ready and willing to pay on the note being delivered up). But in that case the party
could not be damnified by the non-delivery of the note ; for the instrument not being
negotiable, the payee alone could sue upon it. No such distinction exists as to the
necessity for presentment, which must be averred, whether the note be negotiable or
not. The third point is, that, assuming this to be a note payable at a particular place,
the declaration alleges that which amounts to an averment of presentment, namely,
that the party was always ready and willing to receive the money according to the
tenor and effect of the note. It seems strange to endeavor to construe words which
have one meaning so as to give tliem another and different meaning. Those words
cannot ap])ly to a })rescntmcnt, and never were intended to mean it." In Bufterworth
V. Despencer, 3 Maule & S. 150, the declaration averred a presentment at the place
specified, and that the defendant, though often requested, refused to pay. A demurrer,
on the ground that there was no averment of a refusal at the place, was overruled. See
Benson v. White, 4 Dow, 334, supra, note d. The contrary doctrine was held in tlie
earlier cases. Wild i>. Rennards, 1 Camp. 42.5, note; NichoUs v. Bowes, 2 id. 498.

{g) Saunderson v. Judge, 2 H. Bl. 509 ; Richards u. Milsington, Holt, N P. 364, note ;
Price V. Mitchell, 4 Camp. 200 ; Exon v Russell, 4 Maulc & S. 505 ; Williams v. War-
ing, 10 B. & C. 2, 5 Man. & R. 9 ; Masters v. Barctto, 8 C. B. 433. In this case the
maker had indorsed the note, and it was contended that, by the indorsement, he had
incorporated the memorandum into the body of the note; but this was overruled.
Another distinction attempted to be taken between the cases cited sujmi, note /, and
the present was, that in tlic former the memorandum began with the word "at," while
in the latter it began with " payable at " ; but this was likewise overruled. In Exon
V. Russell, 4 Maule & S. 505, a description of a note with such a memorandum at the
foot, as payable at a specified place, was held to bo a variance. Contra, Sproulc v.
Legp, 3 Stark. 156, 2 Dow. & R 15, 1 B. & C. 16. But if the declaration merely states
that the note was made payable at the place, without saying tliat it was so payable ac-
cording to the tenor of the note, this does not amount to a misdescription, and may bo
rejected as surplusage. Hardy v. Woodroofe, 2 Stark. 319. In Trccothick v. Edwin,
1 id. 468, Lord Klhnboroiifjh hehi, that if the memorandum was printed, it must be
considered as a part of the note, iiaving been made at the same time. Scd quare.

(/i) Infra, Vol. II. pp 546, 547.

CH. XI.] AT WHAT PLACE DEMAND SHOULD BE MADE. 429

Tlic law Oil this subject in this country is, as lias already been
remarked, different from that of England. In all the States, with
the exception of Louisiana and Indiana, it is now held that both
maker and acceptor are liable, without a presentment at tlie place
designated ; (i) but the fact that either of them had funds there
ready to be paid over on presentment of the note or bill might
be pleaded in reduction of damages or mitigation of costs ; (J)
but not in bar of the action. (/c) But it has been held that the
declaration should state the place at which the note is payable,
and that a count, which described the note as payable generally,
was fatally defective ; in other words, that this constituted a va-
riance. (/)

An opinion has been entertained by some courts that an aver-
ment and proof of demand are necessary in case of a note paya-
ble on demand, or without any time being specified ; the rea-
son being, that where the time is fixed, the defendant may easily
aver a readiness and ability to pay at the place on present-
ment ; but where the time depends entirely on the pleasure of
the holder, it would be impossible in many cases to set up this
defence. (»i)

(e) Supra, p. 309, note a.

(j) Supra, p. 309, note a.

(k) Supra, p. 309, note a.

(I) Covington v. Comstock, 14 Pet. 43 ; Sumner v. Ford, 3 Pike, 389.

(m) In Wallace v. M'Connell, 13 Pet. 136, 146, Thompson, J. attempted to reconcile
the cases of Wild v. Rennards, 1 Camp. 425, note, Nicholls v. Bowes, 2 id. 498, and
Sanderson v. Bowes, 14 East, 500, on the ground that the former cases wei-e actions
on notes payable at a time fixed, and the latter was on a note on demand. He said :
"Lord Ellenborough, in the course of the argument in Saunderson v. Bowes, in answer
to some cases referred to by counsel, observed : ' Those are cases where money is to
be paid, or something to be done at a particular time as well as place ; therefore the
party defendant may readily make an averment that he was ready at the time and place
to pay, and that the other party was not ready to receive it ; but here the time of pay-
ment depends entirely on the pleasure of the holder of the note.' It is true Lord Ellen-
borough did not seem to place his opinion, on the ultimate decision of the cause, upon this
ground ; . . . . and there is certainly a manifest distinction between a promise to pay on

demand at a given place and a promise to pay at a fixed time at such place Where

ihe promise is to pay on demand at a particular place, there is no cause of action until
the demand is made, and the maker of the note cannot discharge himself by an offer
of payment, the note not being due until demanded." A decision to the like effect
was made in Bank of North Carolina v. Bank of Cape Fear, 13 Ired. 75, where Ruffin,
C. J. said, that there was no doubt that the law was as held in that case, and that the
cases in America clearly admit the distinction. A similar opinion was expressed by
Stanard, J., in Armistead v. Armisteads, 10 Leigh, 512, who said that " it would prob-
ably be held that there is no default of the maker or acceptor until such demand be

430 NOTES AND BILLS. [CH. XI.

The colli rary doctrine, however, has been held by several
courts, (?i) and the ground on which their decisions are based is
this : No such presentment is necessary where the time is fixed,
and a presentment prior to the suit is not essential, in the case
of notes on demand without any place being designated ; there-
fore a presentment at the place cannot be necessary where both
these circumstances concur in the same note ; and the fact that

made, and consequently that no action would accrue to the payee until such demand
should be made." In Caldwell v. Cassidy, 8 Cowcn, 271, Savage, C. J. said : " In the
case of a note payable on demand at a certain place, — a bank-note, for instance, —
I apprehend a demand would be necessary, and must be averred." But the same judge
held the contrary in Haxtun v. Bishop, 3 Wend. 1, infra, note n. In Maine, R. S.
18.57, p. 273, it is enacted that, " in an action on a promissory note payable at a place
certain, either on demand or on demand at or after a time specified therein, the plain-
tiff shall not recover, unl'^ss he proves a demand made at the place of payment prior
to the commencement of the suit." A note payable at a time and place certain is not
within the statute. Stowe v. Colburn, 30 Maine, 32.

(n) Haxtun v. Bishop, 3 Wend. 13 ; New Hope D. B. Co. v. Perry, 11 111. 467 ; Mont-
gomery V Elliott, 6 Ala. 701 ; Dougherty v. Western Bank, 13 Ga. 287 ; McKenney
V. Whipple, 21 Maine, 98, where Tenney, J. said : " It is settled so far beyond dispute
that authorities are not thought necessaiy to be cited, that a note payable on demand
generally is payable everywhere, and a suit can be maintained, though not preceded by
a demand. A previous demand, then, in this State, is unnecessary on a note payable
at a particular place on a day certain ; and also on a note payable on demand gen-
erally. In the former, proof that the debtor was prepared at the place and on the day
when [)ayment was to be made to discharge the note if presented, and bringing the
money into court, would be a bar of damages, and entitle him to costs. Why should a
different principle be made to apply to the note containing in itself both the terms,
which may be disregarded in a note which contains one or the other, but not both 1 Is
there any more necessity for the protection of the debtor's interests and rights, that a
demand should be made when both exist together than when they may be in two notes
between the same parties 1 Are reasons to be found in one case inapplicable in the
other? Tiie authorities which have been cited from English books to support the
views taken by the defendant's counsel establish there a doctrine which is not recog-
nized here. Is the maker of a note, payable at his own residence on demand, in a
situation to be injured by being called upon to answer to an action coniinenced upon
it, without a previous demand, more than ho Avould be upon one payable at the same
place on a day certain ? In the latter case he is, to be sure, only to provide himself
with the means of payment on the day upon which he engaged to make it; and by
doing so he is secure from injury. When, for instance, he engages to pay on demand
at liis residence, he is subjected to the additional risk of being called upon when he
may not have provided for the exigency ; to be certain of exemption from costs, he
must be constantly in funds to meet the note, inasmuch as he would not be entitled to
notice of the time when the presentment of the note would l)c made ; and immediately
after a default on his part to meet the demand made according to the terms of his en-
gagement, he would i)c liable. He could not insist upon a day or an hour in which
lo provide the means of discharge. But this additional risk lie has voluntarily taken
upon himself, and therefore he must ask no indulgence on that account. If the ac-

CH. XI.] AT WHAT PLACE DEMAND SHOULD BE 5L\DE. 431

the defence is more difficult in the one case than in the other
does not avail, because the defendant has taken upon himself
the additional risk, and the hardship, if any, is one of his own
creation.

It seems to be settled, that, in order to charge the indorscr of a
note, a demand at the place designated is necessary, and must be
averred and proved, (o) The reason given is, that his liability is

tion is brought without a previous demand at his residence, the bringing the action
woukl bo the demand, as in cases when the note is payable on demand generally ; and
proof of a readiness to discharge the obligation at his residence on the day of the
commencement of the suit, and bringing the money into court, would be a bar to dam-
ages, and would entitle him to liis costs in the same manner as on a note payable at a
certain day at his residence. We are unable to see wherein he would not be equally
protected in the one case as in the other, excepting so far only as his own contract may
require him to be constantly ready in one, and only on a particular day in the other.
The restriction cannot be regarded as useless in one more than on the other. It may
be, and often is, a great benefit to the maker of a note to be allowed to pay it at a place
where he may be possessed of the means, and if he be thus possessed according to his
engagement, he does not suffer. And it is not seen in what manner he would be preju-
diced in such a note as the one now under consideration by a want of presentment,
more than in one payable on a da}* certain. On the hypothesis that a demand is ne-
cessary on a note like the one before us, the demand could be of no utility to the debtor,

if unprovided with the means of payment From the whole examination which we

have been able to make of the authorities bearing upon the question, and the consider-
ation which we have given the subject, we are satisfied that a decision in favor of the
defendant in this case would be virtually a denial of the soundness of the reasons which
sustain the law that is here settled, that a presentment is unnecessary on a note pay-
able at a particular time and place." The same was held with reference to a note
payalile on demand after a fixed time, in Gammon v. Everett, 25 Maine, 66. But the
law has been changed in Maine, by statute, supra, note m. In Cook v. Martin, 5
Smedes & M. 379, the distinction was adverted to ; but it was held, that, whatever
might be the rule with reference to notes on demand, no demand at the place was neces-
sary to charge the maker of a note payable on demand five months after date. In
Dougherty v. Western Bank, 13 Ga. 287, an opinion is expressed that a demand is
necessary in the case of a bank-bill payable on demand at a designated place, but none
can be required on a note payable under like conditions. The reason given for the
distinction is public policy. The distinction is expressly denied in Bank of North
Carolina v. Bank of Cape Fear, 13 Ired. 75, which holds that a demand is necessary
in both cases ; and Haxtun v. Bishop, 3 Wend. 1, Montgomery r. Elliott, 6 Ala. 701,
were actions on bank-bills, and held that a demand was not essential, putting promis-
sory notes and bank-bills upon the same footing.

(o) In Bank of U. S. v. Smith, 11 Wheat. 171, it was held, that, in an action against
an indorser, on a note payable at a particular bank, the bank not being the holder, an
averment of a demand at that bank is indispensable. But where the bank is the holder,
an allegation that the note was presented to the maker and i)ayment refused, under
which competent evidence of a demand was introduced at the trial without objection, is
so far sufficient that the judgment will not be reversed. Thompson, J., after intimating
an opinion that such averment would not have been necessary if the defendant had

432 NOTES AXD BILLS. [CH. XL

conditional, while tliat of the maker and acceptor is absolute.
But when a note is payable at a bank, and the bank itself is the
holder, it has been held that an averment of presentment to the
maker generally was sufficient. (7?)

been the maker, said : " But when recourse is had to the indorser of a promissoi-}' note,
as in the present case, very different considerations arise. He is not the original and
real debtor, hut only surety. His undertaking is not general, like that of the maker,
but conditional that if, upon due diligence having been used against the maker, pay-
ment is not received, then the indorser becomes liable to pay. This due diligence is a
condition precedent, and an indispensable part of the plaintiff's title and right of re-
covery against the indorser. And when, in the body of the note, a place of payment is
designated, the indorser has a right to presume that the maker has provided funds at
such place to pay the note, and has a right to require of the holder to apply for pay-
ment at such place. And whenever a note is made payable at a bank, and the bank
itself is not the holder, an averment and proof of the demand at the place appointed in
the note are indispensable." The same was held in Bank of Wilmington v. Cooper, 1
Harring. Del. 10; Watkins v. Crouch, 5 Leigh, 522; Hartwell v. Candler, 5 Blackf.
215, but this, it will be observed, was an Indiana case, where the law is stated to be
different from the other States ; Smith v. M'Lean, 2 Taylor, N. Car. 72 ; Nichols v.
Pool, 2 Jones, N. Car. 23. In North Bank v. Abbot, 13 Pick. 465, a suit against
an indorser, Sliaw, C. J. said : " Where a note is made payable at a particular
bank, or other place certain, it has long been held, and is now well settled, not
only that the holder is not bound to present it to the promisor at any other place,
but that a presentment at any other place would be unavailing ; a promisor would be
under no obligation to pay it at another place, and of course a refusal to pay upon
such presentment would be no dishonor upon which the indorser could be charged.
Berkshire Bank r. Jones, 6 Mass. 524; Woodbridge v. Brigham, 12 id. 405, corrected
in 13 id. 556." If this language is not to be considered as referring to an indoi-scr, it
is incorrect, so far as it relates to the point that a presentment at any other place is un-
availing. The statement appears to be too broad. In Shaw v. Reed, 12 Pick. 132, the
court said that the excuse for non-presentment to the maker, that he iiad absconded,
did not apply when the note is payable at a time and place certain ; " that an actual or
virtual demand must be made at that place, and notice of non-payment there must
be given to the indorser in order to charge him ; and it was resolved, that, as the
note m suit was not at the bank on the day on which it became due, no legal
demand was made, and therefore the defendant was discharged from liability as
indorser" See Carley v. Vance, 17 Mass. 389, Wilde, J.; Woodbridge v. Brigham,
13 id. 556, Parker, C. J. In Seneca Co. Bank v. Neass, 5 Denio, 329, McKisxocl; J.
said : " There was, it is true, a defect in the certificate, as it did not slate where the
demand of the note was made ; but this difficulty was obviated by the oral testimony
of the notary, which showed that it was at the banking-house of tiic plaintiffs, the
place of payment." See Woodworth v. Bank of America, 19 Johns. 391, 405, Kent,
Ch. ; Bacon v. Dyer, 3 Fairf. 19, Weston, C. J.; Hart v. Green, 8 Vt. 191, Phrlps, J.;
Allen V. Smith, 4 Ilarring. Del 234, Booth, C. J. See also the cases of Sullivan v.
Mitchell, 1 N. Car. Law Kep. 482, Taylor, C. J. ; Irvine v. Withers, 1 Stew. Ala. 234,
SaffoUl, J. ; Roberts v. Ma.son, 1 Ala. 375 ; Montgomery v. Elliott, 6 id. 701, Ormond,
J. ; Glasgow v. Prattc, 8 Misso. 336.

(/)) Bank of South Carolina v. Flagg, 1 Hill, S. Car. 177 ; Bank of U. S. i-. Smith,
II Wheat. 171, supra, note o.

CH. XI.] AT WHAT PLACE l)l•;:^rAND SHOULD BE MADE. 433

It has been lield tliat a presentment at a different plaee from
the one at which the note was payaljle, and an absolute re-
fusal by the maker to pay, and a statement that any further
presentment at the place specified would be useless, because
tlicre were no funds there, was not sufficient to charge an in-
dorser.(7)

So where a note payable at one liank was, with the consent of
an indorser, negotiated at another, a demand at the latter bank
was held insufficient to charge the indorser, although it was
proved that the maker had no funds at the bank where the note
was payable. (r)

We are not aware that the necessity of such averment and
proof to charge the drawer and indorser of a bill has been ad-
judged except in a very few of the reported cases in this coun-
try ; but as to the proof, it must be as essential where the drawer
or indorser of a bill is sought to be charged, as where the question
is concerning the liability of an indorser of a note.(s) Whether

(q) Smith V. M'Lean, 2 Taylor, N. Car. 72.

(r) Watkins v. Crouch, 5 Leigh, 522.

(s) Tuckerinan v. Hartwell, 3 Greenl. 147, is the only case which has been found
where the liability of a drawer, in this respect, has been distinctly discussed. The bill
was accepted to pay in Boston, and the words, " A. F. Howe & Co." were written at
the lower left-hand corner, but were not plainly legible. The plaintiff insisted that
these words formed no part of the acceptance ; and as the bill was accepted payable in
Boston, that they were only bound to prove that it was in Boston at maturity, and that
due notice was given to the drawer of its dishonor. But the judge, at Nisi Prius, in-
structed the jury, if they should find that the words " A. F. Howe & Co." were placed
upon the bill by the acceptor at the time of the acceptance, and intended to designate
the place at which the bill should be presented for payment, and that the plaintiffs, the
indorsers, knew that it was so intended, and where the place was, that it was incumbent
on the plaintiffs to prove a demand at the place. The jury found for the defendant,
and a new trial was refused. It may be observed, however, with reference to this case,
that Mellen, C. J., after adverting to the difference between the liability of an acceptor
and that of a drawer or indorser, said : " The line of distinction, however, is not drawn
with clearness, and therefore we have not founded our opinion upon it, though there
seem to be good reasons for the distinction." In Story on Bills, § 355, it is laid down,
that " if the bill be made payable at a banker's, or other particular place, and accepted
accordingly, it should be presented for payment at that place at its maturity, otherwise
the drawer and prior indorsers will be discharged." In Story on Prom. Notes, § 230,
it is said that the English and American authorities " are entirely in coincidence on the
point that it is indispensable, in order to charge the indorser or the drawer, that a pre-
sentment for payment should be made not only at the place, but also on the very day
of the maturity of the note or bill, otherwise the indorser or drawer will be absolutely
discharged." In Edwards on Bills, 496, it is stated, that, " when a bill or note is
Vol. I.— 2 C

434 NOTES AXD BILLS. [CH. XL

the distinction mentioned above, which the English courts seem
to have taken between the necessity of an averment where the
bill is drawn payable at a place certain, and its non-requirement
where the acceptance alone is so payable, would be followed,
may be doubted.

There can be no such distinction in this country as that which
exists in England witli reference to the liability of the maker,
where the place of payment is mentioned in the body of the note,
and where it simply constitutes a memorandum at the foot ; be-
cause if the maker is liable without a presentment in the former
case, he must be in the latter. This question might arise, how-
ever, with respect to the liability of an indorser of a note, or of
a bill, with such a memorandum at the foot of the acceptance,
or possibly of an acceptor who has accepted generally the bill
drawn with the memorandum beneath the signature of the
drawer. But it may well be doubted whether, independently of
the question of alteration, the distinction adverted to is not more
nice than sound ; and it has a tendency to create confusion and
uncertainty on this subject, already overburdened with niceties
and refinements. (^) Where there is any difference between the
law of the place where a note or bill is made, and that which
exists where payment is to be demanded, the law of the latter,
which must be pleaded and proved like any other fact, will
govern. (?/)

Wliatcver difference there may be in the cases, as to the
necessily of a demand at the place specified, it is perfectly
clear that, so far as place is concerned, a presentment there
by the holder is always sufficient. And this is true, whether

drawn payable at a place named, it is essential to show, in an action a}j;ainst tlie drawer
or indorser, a presentment at tlie place a])pointed." None of tlie American cases cited
by the learned author, however, on this point, arc direct decisions resj)ecting drawers
or indorsers of bills.

(/) In Tuckerman v. Hartweli, .3 Grcenl. 147, the distinction in denied. The facts
in this case will be found supra, note s. But in Pierce r. Whitney, 29 Maine, 188, 195,
Shepleij, J. said : " The place of payment must bo stated in the body of the note, to
make it j)ayablc at that place." " A written memorandum of such a place at the foot,
or on the margin of the note, has been adjudged to be insuflicient." These arc mere
dirja, however. The point was touched upon in Fletcher v. Blodgctt, 16 Vt. 26, whero
it was said to bo an open question. The subject of the effect of a memorandum, in
general, is treated elsewhere.

(») I'ryor v. Wright, 14 Ark. 189.

CH. XI.] AT WHAT PLACE DEMAND SHOULD BE MADE. 435

the liability of the indorser,(i<;) maker5(.r) drawer,(y) or ac-
ceptor (0) is concerned.

Nor in such case is it necessary for the maker himself, or his
agent, to make any formal demand, for it is sufficient if the note
is at the place on the day of maturity, ready to be delivered up
to any party who may be entitled to it on payment of the amount
due ; and if, at the close of business hours, the note or bill is still
unpaid, these facts alone constitute a dishonor, and the requisite

{w) In Saunderson t;. Judge, 2 H. Bl. 509, the place of payment was mentioned
in a memorandum, and yet a demand there was held sufficient. In Bank of U. S.
V. Carneal, 2 Pet. 543, Story, J. said : " Where a note is payable at a bank, it is not
necessary to make any personal demand on the maker elsewhere. It is his duty to be
at the bank within the usual hours of business to pay the same, and if he omits so to
do, and a demand is there made of payment by the holder, within those hours, and
it is refused or neglected to be made, the holder is entitled to maintain his action for
such dishonor." Berkshire Bank v. Jones, 6 Mass. 524 ; Woodbridge v. Brigham,

13 id. 556, 12 id. 405 ; Bank of Utica v. Smith, 18 Johns. 230 ; Anderson ». Drake,

14 id. 114, 117, by Thompson, C. J., who said: "The settled law now is, that a de-
mand of payment at the place where the note is made payable is enough to charge
the indorser. Gale v. Kemper, 10 La. 205 ; Commercial, &c. Bank v. Hanier, 7 How,
Miss. 448 ; Cohea v. Hunt, 2 Smedes & M. 227 ; Harrison v. Crowder, 6 id. 464 ; Good-
loe V Godley, 13 id. 233 ; Rabm v. Philadelphia Bank, 1 Rawle, 335 ; Jenks v. Doyles-
town Bank, 4 Watts & S. 505, where it was held, that a statement in the protest of a
demand at the bank was, prima facie, sufficient ; also, that it need not be shown that the
cashier was at the bank during the whole of business hours, because the presumption is
that he performs his duty. See Bank of South Carolina v. Flagg, 1 Hill, S. Car. 177.
In De Wolf v. Murray, 2 Sandf 166, the holder went to demand payment of the ac-
ceptor of a bill directed to the latter, "at the office of H. 0. Collard, No. 18 Chapel
Walks, Liverpool," and found the office shut, and no one there to answer. Held a suf-
ficient presentment to charge an indorser. See also in/ia, note y. Bank of Syracuse
V. HoUister, 17 N. Y. 46, where the teller, who was also a notary, took the note to the
bank at about 6 P. M., and finding it shut, as notary, demanded payment of him-
self, as teller. He knew that there were no funds in the bank. Held sufficient.

(x) Lyon r. Williamson, 27 Maine, 149, where the maker was ready at the time and
place, and the holder was not there to receive the money, but subsequently made a
demand at the place, and was not able to obtain payment. Held sufficient. Stedmaa
V. Gooch, 1 Esp. 3.

(//) Supra, notes. In Evans v. St. John, 9 Port. Ala. 186, the drawer of a bill pay-
able at a bank, in a suit against him, offered evidence to prove that he had deposited in
the hands of the acceptor, at the maturity of the bill, funds more than sufficient to
meet it. Held, that, inasmuch as a proper demand had been made at the bank, the evi-
/lence was inadmissible, because immaterial. In Hine v. Allely, 4 B. & Ad. 624, the
acceptor accepted generally a bill directed to him at No. 6 Budge Row, Watling St.
Held, that an averment of presentment to the acceptor was supported by proof that the
holder went to the place mentioned to present the bill, and found the house shut up,
and no one there. The subject how far this fact constitutes an excuse will be treated
infra.

{z) Foden v. Sharp, 4 Johns. 183 ; McClane v. Fitch, 4 B. Mon. 599.

4"3(j NOTES AND BILLS. [CH. XL

notice may be given forthwith to the proper parties. (a) It is
usual, however, in such instances, to have a formal presentment
and refusal made. We do not regard this as necessary. (6)

In some cases an examination of the accounts of the maker
has been made, in order to ascertain whether the bank or banker
at whose place of business a note has been made payable has
any funds with which to pay the note.(c) But this is clearly un-
necessary, where it is proved by any competent evidence that no
funds were there to meet the note, and that no one came to pay
it.{d) And unless the bank or banker is the owner of the note,
and not merely the holder for collection, it may well be doubted
whether the mere fact that the bank or banker had funds of the
maker in its possession would constitute any defence for the

(a) Saunderson ». Judge, 2 H. Bl. 509 ; Fullerton v. Bank of U. S., 1 Pet. 604 ;
Bank of U. S. v. Carneal, 2 id. 543 ; Berkshire Bank v. Jones, 6 Mass. 524 ; Folger
V. Chase, 18 Pick. 63 ; Nichols v. Goldsmith, 7 Wend. 160 ; Ogden ». Dobbin, 2 Hall,
112 ; Woodin v. Foster, 16 Barb. 146 ; Gillett v. Averill, 5 Denio, 85 ; Allen v. Miles, 4
Barring. Del. 234; Graham v. Sangston, 1 Md. 59 ; Hunter v. Van Bomhorst, id. 504 ;
Goodloe V. Godley, 13 Smedes & M. 233. These were cases against an indorser
Maurin v. Perot, 16 La. 276, an action against a maker; State Bank v. Napier, 6
Humph. 270, an action against a bank for neglect of duty, by which it was claimed
that the indorsers of a note deposited there were discharged.

(b) In Ogden v. Dobbin, 2 Hall, 1 12, Oakleij, J. said : " There was no necessity for
the cashier to make any other demand. His subsequent delivery of the note to a
notary, and his personal demand on the makers, was probably by way of greater
caution, and was clearly unnecessary." So in Gillett v. Averill, 5 Denio, 85, where
the only evidence of presentment was, that the teller, on the day of maturity, drew the
note from the package where it was kept, and, knowing that the maker had no funda
in the bank, he gave notice to the indorser, without any formal demand of payment, or
any actual examination of the maker's account. The defendant moved for a nonsuit,
which was denied. Whiltksei/, J. said : " The presentment for payment was sufficient.
It is understood to be the custom of banks holding promissory notes payable at their
own counter to wait, on the day of the maturity of the note, until the close of business
hours, and then, if the maker has no funds, to give notice of non-payment, without mak-
ing any other demand of payment. This custom is sanctioned by judicial decisions.
It may be usual for the teller, or otlier officer, to inquire of the book-keeper if tiie
maker has any funds ; but in this case such inquiry was unnecessary, as the teller
swore that he knew there were no funds in the bank to pay the note. No formal de-
mand, or unmeaning proclamation, at the close of banking liours for the day was
necessary, or is ever necessary, in such cases." Fullerton v. Bank of U. S., 1 Pet. 604,
infra, note/; Shaw, C. J., Gilbert v. Dennis, 3 Met. 495, 497.

(r.) Saunderson v. Judge, 2 H. Bl. 509; Maurin v. Perot, 16 La. 276; Bank of
South Carolina v. Fiagg, 1 Hill, S. Car. 177.

(d) Gillett V. Averill, 5 Denio, 85, supra, note b ; State Bank v. Napier, 6 Humph.
270, where the judge at Nisi Prius instructed the jury that such examination was ncces-
sary, and the charge was held to be erroneous ; Fullerton v. Bank of U. S., 1 Pet. 604,
infra, note/.

CH. XI.] AT WHAT PLACE DEMAND SHOULD BE MADE. 43'^

indorser ; because this would give uo right to appropriate the
money to the payment of the note, without the direction of the
promisor, and the consent of tlic bank or banker, or some iisage
of trade or custom to that effect. (c) But if the bank or banker,
in such case, has become the owner, by discount or purchase,
the circumstances just mentioned might perhaps furnish a de-
fence. (/)

It is not necessary for the hohier to show that the note was in
the hands of the officer of the bank whose duty it was to receive
payment ; (ij-) nor even if it were proved tliat it was not in his
hands, would this fact be material, provided the note was in the
bank, and was unpaid. (A) If the note were in the bank, the pre-
sumption is that the proper officer could have obtained it ; and
if the note is the property of the bank, the plaintiff need not
prove that it was at the bank, the presumption being tliat the
note was there, and the burden of proof is upon the defendant
to show that the maker called for the purpose of paying it.(i)

(e) We liave found no authority to this effect, but it would seem that there can be
no doubt of the proposition. But Stoi-i/, J., in Bank of U. S. v. Carneal, 2 Pet. 543,
said : " If the bank has funds of the maker in its hands, that might furnish a defence
to a suit brought fur non-payment. But this is properly matter of defence to be
shown by the party sued, like any other payment, and not matter to be disproved by
the bank, by negative evidence." It may be, however, that the bank in this case was
the owner of the note. The suit was brought, it will be seen, in the name of the bank.
See Fullerton v. Bank of U. S., infra, notey.

(/) See Bank of U. S. v. Carneal, 2 Pet. 543, supra, note e. In Fullerton v. Bank of
U. S., 1 id. 604, the judge, at Nisi Prius, charged the jury, " that, on a note made payable
at a particular bank, it is sufficient to show that the note had been discounted and be-
come the property of the bank, and that it was in the bank, not paid at maturity." The
defendants excepted, and it was held that the charge was as favorable to them as they
had a right to claim. Johnson, J. said : " Nothing more than this could have been
required by the court ; for the positive proof that the bill was not paid will certainly
imply that there were no funds of the drawer there to pay it. The fact could not have
been made more positive by inspection of the books. The charge is, perhaps, too
favorable to the defendants, since modern decisions go to establish that, if the note be
at the place on the day it is payable, this throws the onus of proof of payment upon the
defendant. This is more reasonable than to require of the plaintiff the proof of a nega-
tive, and comports better with the general law of contracts." See Gillett v. Averill,
5 Deuio, 85, supra, note 6. See also the cases of Allen v. Miles, 4 Harring. Del. 234 ;
Mauriu v. Perot, 16 La. 276. The language used in these cases is, that it is sufficient
if the note is at the place, and there were no funds of the maker there.

{y) See Jenks v. Doylestown Bank, 4 Watts & S. 505, supra, p. 435, note w ;
Folger V. Chase, 18 Pick. 63, infra, note /.

(h) State Bank v. Napier, 6 Humph. 270.

Ci) Berkshire Bank v. Jones, 6 Mass. 524 ; Folger v. Chase, IS Pick. 63, where
37*

4SS NOTES AND BILLS. [CH. XL

If the holder, on the day of matm-ity, finds the place of pay-
ment closed, it has been held that he is not bound to make any
further demand to charge either drawer (y) or indorser,(A;)

If at that time the acceptor be dead, a presentment at such
place has also been held sujSicient to charge a drawer. (Z)

If the office at which payment was to have been made has
ceased to exist previous to and at tlie maturity of a note, no
demand at all has been held necessary,(m) even where the bank
has been sold to another similar corporation, which was made the
agent of the bank for settling its affairs of discount and de-
posit, (w)

Where a note is made payable at any or at either of the banks
of a city or town, the holder has a right to elect at which bank

Wilde, J. said : " No demand was necessary except at the bank ; and altliongh there is
no express proof that the notes were there, and some officer of the bank in attendance,
at the times the notes fell due, yet tliis must be presumed, and it was for the defendants
to show that the makers called at the place appointed for the purpose of making pay.
raent. The testator by his indorsements guaranteed that the makers would respectively
be at the bank and pay the notes according to their tenor."

{j) Hine v. Allely, 4 B. & Ad. 624, supra, p. 435, note y. '

{^■) De Wolf v. Murray, 2 Sandf 166, siqmi, p. 435, note w.

(/) Philpott v. Bryant, 3 Car. & P. 244, 4 Bing. 717, 1 Moore & P. 754, supra, p. 427,
note d.

(m) Erwiu v. Adams, 2 La. 318; Roberts v. Mason, 1 Ala. 373. See Central Bank
V. Allen, 16 Maine, 41, infra, note n.

(n) Roberts v. Mason, 1 Ala. 373. Collier, C. J. said : " The contract of indorsement
was, in law, an agreement on the part of the defendant to pay to the plaintiff, if the
note should be duly presented for payment at the office of discount and deposit of the
Bank of the United States at Mobile, and legal notice be given him of the default of
the makers, in the event of their failure to provide for it. One of the conditions on
which the lial)ility of the defendant depended, it became impossible to perform, in con-
sequence of the office of discount and deposit ceasing to exist previous to the maturity
of the note. But it is not pretended that that occurrence was produced by the instru-
mentality of the plaintitF, and it cannot be held to interjiolnte the contract of indorse-
ment, so as to make the indorser's liai)ility de|)end upon the ])erformance of a condition
by the indorsee which did not constitute a part of tlie original contract." But in Cen-
tral Bank v. Allen, 16 Maine, 41, a case where the bank at which the note was payable
had cea.sed to exist, and its place of business was occupied by. another bank, without
any arrangement by the latter as to settling up the business of tiie former, the court
seemed disposed to think that presentment should still be made. Weston, C. J. said :
"And we are inclined to the opinion that the Braiu'li Hank having ceased to opciate, if
their banking-house had not been occupied by a similar institution, presentment would
have been excused. If this was the place of demand, and upon the fa?ts we think it
was, there is evidence of a sufficient presentment at that place." A denuxnd was, it will
be seen, made at the latter bank, and the defendant contended that it ought to have
been made on the maker at his place of business or of residence; but the court held
the demand sufficient.

CH. XI.] AT WHAT PLACE DEMAND SHOULD BE MADE. 439

lie will make the presentment, and a demand there will be sufifi-
ciciit.((;) This rule is applicable equally to places where there
arc many banks, as to those in which there are only a few.(/y)
An opinion seems to have been entertained, that where there are
several banks in a large city, the holder is bound to give notice
to the promisor where his note is ; (q) but this must now be con-
sidered as overruled. (r) The reason given is, that the stipulation
as to the place of payment was not made for the benefit of the
maker, but of the holder ; and to require notice to be given
where the note is, would in many cases be more difficult to prove
than an actual presentment to the maker on the day of pay-
ment. (5)

(o) Malilcn Bank v. Baldwin, 13 Gray, 1.54, a suit against the indorscr of a note
payable "at hank in Boston"; North Bank v. Abhot, 13 Pick. 46.5, an action against
the indorscr of a note payable "at either of the banks in Boston "; Jackson v. Packer,
13 Conn. 342, a suit against the acceptor of a bill payable " at either bank in Provi
dence " ; Langley v. Palmer, 30 Maine, 467, an action against the indorscr of a nolo
payable "at any bank in Boston"; Page v. Webster, 15 id. 249, a suit against the
indorscr of a note payable at " either of the banks in Portland."

(/>) In Langley v. Palmer, 30 Maine, 467, a distinction was attempted to be drawn
on this ground between that case and Page v. Webster, 15 id. 24, but the court over-
ruled it, saying that " the principle is applicable equally to a note payable in Boston
as in Portland."

(q) Shdw, C. J., North Bank v. Abbot, 13 Pick. 465 : " It would seem to follow,
from other established rules, that, in such case, the holder should give notice to the
promisor where his note is. But of this it is not necessary to give any opinion in the
present case, because it was proved that, in fact, the promisor had notice that his note
was in the North Bank."

(r) Maiden Bank v. Baldwin, 13 Gray, 154 ; Jackson v. Packer, 13 Conn. 342, where
Wake. J. said that the notice " was not required by the express terms of the bill, nor
has any local usage upon that subject been shown, and we know of no rule of law re-
quiring it. If the parties wish for more certainty as to the place of payment, let them
be more explicit in the bill." Langley v. Palmer, 30 Maine, 467 ; Page v. Webster,
15 id. 249.

(s) Blyelow, J., Maiden Bank v. Baldwin, 13 Gray, 1.54. In Page v. Webster,
S/iPjilfij, J. said : " This form of a note has been introduced into this part of the country
within a few years, and it may aid in determining the rights and duties of the ])arties to
inquire at whose instance the note must have been so formed. It is not easy to perceive
what benefit the maker would derive from a note in that form, unless it were made by
a banker or banking-house, in which case there might be hope of advantage from an
increased circulation. While the maker ordinarily could derive no advantage from
such a form, he might justly apprehend some inconvenience in looking up the note to
pay it. For, as it regards him, it is quite clear that the holder, by the law in this and
most of the other States, is not obliged to have it at the place where jiayable A
readiness to pay at the appointed place is matter in defence only. It is not, therefore,
probable that it was so formed for his interest or accommodation. To the payee it
might be of advantage. He misrht be desirous of making use of the note in the mar-

440 NOTES AXD BILLS. [CH. XL

Where a note is payable at two places, the holder has a right
to present it at either he may choose ; (t) and if a bill be payable
in a city, and the acceptor has no residence or place of business
there, it will be sufficient to charge the drawer if the bill is in
the city at the day of maturity, ready to be delivered up to the
acceptor if he should come to pay it.(z/)

If a bill is drawn on a person residing in one place, payable in
another, it is said that, in case of an acceptance and subsequent
refusal by the acceptor to pay, the latter is the proper place hi

ket, or at a banking-liouse, to obtain the money before it became due. It would be
convenient to have it payable at a bank, to save the risk and trouble of a present-
ment to the maker. And if made payable at a particular bank, it would not be so
readily received at other banks, because it would subject them to the risk and trouble
of being watchful for the day of payment, and of sending it to the bank where pay-
able for presentment. It would be natural for business men to endeavor to obviate
this difficulty, so as to enable them the most readily to obtain cash fur the note at
any bank, not being limited to one, where funds were to be loaned. A note payable
at any bank in a })lace would therefore be desirable to the payee, and it is but rea-
sonable to conclude that such a form was introduced for his convenience and interest.
And if so, does it not show that the intention of the parties was to relieve the payee or
holder from risks and troubles to which he might be subjected if made payable at any
one bank only ? And if such were the intentions of the parties, they can only be car-
ried into effect by requiring the maker to look for his note at all the places where he
promises to pay it. For to require the holder to give the previous notice now insisted
upon, would not only defeat the oiyect of relieving from trouble and risk, but would
subject to much greater than if made payable at one bank only. The maker's express
promise to pay at any one of several places would indicate to a common mind the
duty to act according to what is supposed to have been the intention of the parties, and
to look at all the places for it, or have funds tiiere wlien it became due. And as re-
spects his own liabilities, it has already been seen that he must do it to relieve himself
from the danger of costs, or at least must show in defence a readiness at some place
named. The payee never could have designed, by receiving a note in that form, to
have incurred the responsibilities now supposed to attach to it, yet if there is any rule
of law so clearly settled and well established as to decide the legal construction which
ought to be given to a contract in that form, the parties must be supposed to intend to
(onform to it."

(/) Beeching v. Gower, Holt, N. P. .313, where the note was jjayable at Maidstone,
and at Hamsbottom & Co.'s, London.

{it) Boot L-. Franklin, 3 Jolins. 207, where the bill was payable in London, and the
declaration stated that the bill not being |)aid, and the holders, not knowing where to
present the same for ijayment in London, caused the same to be protested. Kmt, C. J.
said : " Nor were the holders bound to go elsewhere to seek the drawees, as the bill had
directed the payment to be in London. They conformed their conduct lo the tenor of
the bill. They were in London on the day of payment, ready to receive payment, and
they did all that they were enal)led to do ; they caused liie bill to be there protested. Tho
declaration in this case al.so states sufficient to entitle the plaintiiVs to recover." See also
Ma.son t. Franklin, 3 Johns. 202. Digelow, J., Maiden Bank v. Baldwin, 13 Gry/, 151.

CH. XI.] AT WHAT PLACE DEMAND SHOULD BE MADE. 441

which to make presentment. (?;) But where a bill drawn in thip
way had been accepted for the honor of the payee, " if regularlj'
protested and refused when due," a presentment in the place
where the drawee resided, without any at the place where the bill
was drawn payable, was held to be sufficient. (z<^)

The fact that a note is dated at a certain place, it need hardly
be necessary to remark, does not make the note specially payable
there. (a;) It may have the effect of leading a holder, who has

{v) Story on Bills, §§ 282, .S53. See Chitty on Bills, 1 0th Lond. ed., 240. Bnt in Ma-
son v. Franklin, 3 Johns. 202, :i Inll drawn on a person at Liverpool, payable in London,
was protested for non-acceptance in Liverpool, and afterwards for non-payment at
the same place. Kent, C. J., after remarking that a good cause of action had arisen on
the protest for non-acceptance, said : " But we are of opinion that, as no place of pay-
ment in London was designated, the demand for payment and protest for non-payment
were well made upon the drawees personally at Liverpool. It would have been a very
idle act for the holder to have gone into London to make inquiry, when no place in
London was pointed out in the bill, and when the drawees resided at Liverpool, and
had refused to accept the bill. The law merchant has not pointed out any particular
spot in London for such inquiries, and to have attempted it at large would have been
the height of absurdity. The common law in general, and especially the commercial
law, which forms a distinguished branch of it, is founded on the princijiles of utility and
common sense ; and it would be truly surprising, and repugnant to the very spirit of
the system, if an inquiry so senseless was requisite to consummate the right of the
holder of the bill. It must be a sound rule, that where no particular place of payment
is fi.xed, a demand upon the drawee personally is good. A general refusal to pay, was
a refusal to pay according to the face of the bill. It was equivalent to a refusal to pay
in London. We do not mean to say that the demand of payment at Liverpool was
indispensable. Tiic bill being payable at London, it would have been sufficient for the
holder to have been there when the bill fell due, ready to receive payment. In the pres-
ent case a protest at London, or a demand and protest at Liverpool, were sufficient, and
the holder might take cither course. The holders elected to demand payment of the
drawers personally at Liverpool, and to cause the bill to be protested there, and the
plaintiffs accordingly did all that in reason or law can be required to fix the antecedent
j)arties to tiie i)ill."

(w) Mitchell v. Baring, 10 B. & C. 4. In Chitty on Bills, 10th Lond. ed., 241, it is
said : '' This case, though decided upon the peculiar form of the acceptance, and there-
fore not involving the general question as to the usage and custom of merchants, was
nevertheless considered as sufficiently casting a doubt upon the validity of the pre-
vious practice to require the interference of the legislature ; and accordingly the Act
of 2 & 3 Wm. IV. c. 98, was passed." By the terms of this statute, such a bill as
that in Mitchell i'. Baring may, without further presentment to the drawee, be protested
for non-payment at the place where it is payable.

(.r) Lightner v. Will, 2 Watts & S. 140. In Taylor v. Snyder, 3 Denio, 14.5,
Beardslci/, J. said : " The date of a note at a particular place does not make that tlie
place of i)ayment, or at which payment should be demanded for the purpose of charg-
ing the indorser. This was expressly adjudged in the case of Anderson v. Drake, 14

Johns. 114 It has been supposed that the case of Stewart v. Eden, 2 Caines, 121,

•ount' nances a different doctrine. Livingston, J. there said : ' The notes being dated in

442 NOTES AND BILLS. [CH. XL

no knowledge of the place of residence or business of the maker,
to suppose that he might be found there. (y) Perhaps it may be
said, generally, that the date of a certain place raises the pre-
sumption that the paper is payable, and therefore to be demanded,
at that place.

SECTION YII.

EXCUSES FOR ABSENCE OF DEMAND OF PAYMENT.

"We have already stated that all the parties subsequent to the
principal payor are only as his guarantors, and promise to pay
only on condition that a proper demand of payment be made,
and due notice be given to them in case the note or bill is dis-
honored. And we repeat this as one of the fundamental prin-
ciples of the law of negotiable paper ; and the infrequency and
the character of the circumstances which will excuse the holder
from making the demand, and still preserve to him all his rights
as effectually as if it were made, will illustrate the stringency of
the rule itself.

The only general and universal rule which can be laid down
with respect to demand is, that in all bills of exchange, the

New York, tlie maker and indorser are presumed to liave resided and contemplated
payment there.' This remark was in part strictly correct, for tlie date of the note was
presumptive evidence of residence ; and in a general sense it ma}' also be true that tho
date raises a presumption that the parties contemplated payment at that place. Judge
Livingston did not say that the note was, by law, payable at the place of its date ; on
the contrary, the form of expression conclusively rcjicls that idea. lie was not speak-
ing of what the parties were bound to do by the terms of tho note, of their legal obli-
gations flowing from the engagement as maker and indorser, but simply of what they
were presumed to have contemplated There is nothing, therefore, in this re-
mark of Judge Livingston which can bo made to countenance the idea that a note,
when no other place of payment is specified, is by law payable at the place of its date.
Anderson v. Drake, 14 Johns. 114, supra : Bank of America v. Woodworth, 18 Johns.
322." In Fisher ». Evans, .5 Binn. 541, Til(/limim, C. J. said : " I can find no such prin-
ciple as that for which the plaintiff in error contends, that the place wlicre the bill is
drawn must be taken to be the residence of tho drawer." Gal|)in v. Hard, 3 McCord
394. Sec Burrows i;. Ilannegan, 1 McLean, 309. But see the cases cited htfiu, p.
^.^S, note a, where a different doctrine seems to be laid down.

(//) W/iilimn, C. J., Pierce i-. Whitney, 22 Maine, 11.'}, 29 id. 188. See the cuse?
cited sii/ira, p. 441, noto r ; Duncan v. M'CuUough, 4 S. & 11. 480 ; Nailor v. B'lwie,
3 Md. 251.

CH. XI.] EXCUSES FOR ABSENCE OF DEMAND OF PAYMENT. 443

holder, in order to recover of the drawers or indorsers, " must
prove a demand of, or due diligence to get the money from, the
acceptor "; (2^) and in all actions upon promissory notes by aj^. in-
dorsee against the indorser, the plaintiff must prove a demand of,
or due diligence to get the money from, the maker of the note. (a)

The question of excuse, then, will depend upon the fact
whether due diligence has been used to find the maker or ac-
ceptor, and presents the ordinary inquiry as to negligence. That
question may, and often does, depend on such a variety of cir-
cumstances, tliat it is very difficult, if not impossible, to reduce
them to any fixed or invariable rule. (6) When there is no dis-
pute about the facts, due diligence is a question of law for the
court to determine ; (c) and where the facts are controverted, or
the proof equivocal or contradictory, it would seem to be a mixed
question of law and fact.(c?)

Tlie principal excuses resolve themselves into two classes:
First, tlie impossibility of demand. Second, the acts, words, or
position of a party, provhig that he had no right, or waived all
right, to the demand, of the want of which he would avail himself.

1. Where the Demand for Payment cannot be made.

That impossibility should excuse non-demand is obvious ; for
the law compels no one to do what he cannot perform. But it
must be actual, and not merely hypothetical ; and though it need
not be absolute, no slight difficulty will have this effect.

We have already considered the law of demand with reference
to the person by whom it is to be made, of whom it is to be
made, and as regards the method, time, and place of making
it. We will now consider the impossibility of presentment with
reference to the same points, and afterwards with respect to
other circumstances.

(z) Lord Mansfield, C. J., Heylyn v. Adamson, 2 Burr. 669, 678 ; Kent, J., Munroe
V. Easton, 2 Johns. Cas. 75.

(a) Lord Mansfield, C. J., Heylyn v. Adamson, 2 Burr, 669, 678.

(6) Slorrs, J., Windham Bank v. Norton, 22 Conn. 213, 221.

(c) Wheeler v. Field, 6 Met. 290, where the notary testified that he had used due
diligence, and the mry, in reply to a question by the court, stated that they had found
that due diligence was used ; but the court set aside their verdict in favor of the plain-
tiff, and ordered a new trial. See Orearv. McDonald, 9 Gill, 3.iO ; Cathell v. Goodmn,
1 Harris & G. 468.

{d) See Orear v. McDonald, 9 Gill, 3.50 ; Cathell v. Goodwin, 1 Harris & G. 468.

444 NOTES AND BILLS. [CH. XI.

. If at the time a note or bill matures the holder is dead, and
no executor or administrator is appointed, it is clear that no de-
mand can be made at that time ; and consequently this fact
operates as an excuse, but not in general for an entire want of
demand, but for a presentment at what would otherwise be the
time required by law. The executor or administrator has a rea-
sonable time after appointment in such cases Avithin which to
present the note or bill.(e) So where an agent with whom a note
had been left for collection died four days before maturity, after
an illness of more than a month, and about three weeks after-
wards his executrix discovered the note locked up in his desk,
where it had remained unknown to her, and caused it to be im-
mediately presented, the indorser was charged. (/)

Where there is no person upon whom it is possible to make a
demand, the indorser must of course be liable without one. As
where a note was signed by an agent having authority so to do,
and the note was subsequently indorsed, the principal being dead
at the time the note was made and delivered, no demand was
held necessary. (g-) And the same would probably be held where
the apparent maker was living, but the note was void against
hini,(/i) on account of usury, (i) illegal consideration, or forgery ;
or where the maker was a married woman ; or perhaps a minor,
both at the time of making and of maturity ; though some doubt
might be entertained in the last case.(y) But cases may be im-

(e) White v. Stoddard, 1 1 Gray,

(/) DuL'Ruii V. King, Rice, 239.

((j) Burrill v. Smith, 7 Pick. 291, where Parker, C. J. said : "In this case, one of
the strong points of tlie argument for tlie defendant is, that tlicre lieing in fact no prom-
isor, the indorser, if compelled to pay, will have none to call upon to reimhurse him.
Also, that the common requisites of an action against indorsers cannot he complied
with, for there can be no demand upon the promisor. But this will affect only tho
form of the declaration. The same difficulty — if it is one — will occur in tho ca.ses of
void or voidai)lc notes above mentioned ; for a demand in such cases would be merely
formal. The administrator of a deceased person, whose name appears to a note, may
as well be called ujjon, in order to give an action against an indorser, as the person
whose name is forged. An averment that, at the time of writing the note by the attor-
ney for the prineijjal, tlio piincipal was dead, would be suffiriciit to entitle the plaintiff
to recover."

(/i) Chandlers. Mason, 2 Vt. 193.

(j) Copp V. M'Dugall, 9 Mass. 1, where the evidence of the note being void was
considered an admission or recognition of the illegality of the note by the indorser.

(j) See the remarks of Parker, C. J., supnt, note y. The void or voidable notes
just mentioned are notes void between promisors and payee, on account of usr/y

CH. XI.] EXCUSES FOR ABSENCE OF DEMAND OF PAY.MENT. 445

agined under almost any of tlie circumstances above mentioned,
in whicli the maker has intimated a purpose of waiving sucli de-
fence ; and if so, it might be thought that a demand should be made
of him. And if this be so, should not a demand be made, on the
ground that, as the defence might be waived, the indorser had a
right to insist that a proper etifort should be made to ascertain
whether the maker intended to make such waiver or avail him-
self of the defence ? The authorities do not aid us much in
answering all these hypothetical questions. But the nature and
purpose of negotiable bills and notes, and the decisions, as far
as they go, would lead us to lay down the rule, as at least gen-
erally applicable, that, wherever the maker has an unquestiona-
ble and certain defence in law, it will be the presumption of law
that he will make this defence, and therefore there need be no
demand of him. Nor is tlie indorser injured by this rule ; for if
the liability of the maker is wholly at his own option, he will be
at liberty to pay the debt to relieve or indemnify the indorser, as
for the immediate benefit of the holder, and so the indirect bene-
fit of the indorser.

We have already seen, that, where the maker dies before the
note matures, the general rule is, that demand should be made
of his personal representatives ; (k) consequently the death of
the maker or acceptor is no excuse for non-presentment. And
this is so even when the indorser whom it is sought to charge
has been appointed administrator of the maker's estate. (/) But
where there are no personal representatives, of course no demand
can be made. Thus, where the maker and his whole family
were drowned two days before the note matured, there being no
will, and no administration having been taken out on the estate,
it was held that no demand was necessary, (m)

or other illegal consideration. So if the indorsement is made of a note made by a
minor or of a. feme covert, and even if the name of tlie promisor is forged. As regards
voidable notes, a distinction might be made on the ground that the makers might pay,
altiiough they are not obliged so to do ; and it might be said, that, in order to consti-
tute due diligence on the part of the holder, he should make a presentment, to see if
they would not honor the notes. The necessity of demand would, it is conceived, bo
still stronger where the maker has come of age before the note has matured ; as circum-
stances might have happened amounting to a ratification.

(k) Supra, p. 364, note x.

(/) Magruder v. Union Bank, 3 Pet. 87 ; Juniata Bank v. Hale, IBS & R. 157.

(m) Haslett v. Kunhardt, Rice, 189, Richardson, J. dissenting.

VOL. I. 38

446 NOTES AXD BILLS. [CH. XL

But where an administrator has been appointed, and by law is
entitled to a certain time within which to settle up the estate of
the deceased, prior to the expiration of which he is not liable to
be sued by any creditor of the estate, a demand upon him has
been held to be excused, provided the note fall due witbin the
time limited, but not otherwise. (w)

Where neither the maker nor his last and usual place of busi-
ness or residence can be found, no demand need be made, but
the holder must prove that he used due diligence to find them,
and that his efforts proved unavailing, (o)

2. Of Insolvency.

As between tbe holder of negotiable paper and the prior par-
ties thereto, the insolvency or bankruptcy of the maker or ac-
ceptor will constitute no excuse for want of demand. (/?) The
rule is the same whether the payor becomes 'in solvent between
the time of indorsing the note and its maturity,(^) or is insolvent
before and at the time of the indorsement, and his insolvency is
known to tlie indorser when he puts his name upon the note.(/')

(n) Supra, p. .364, notes y and z.

(o) Iii/ra, p. 448, note d.

(p) In Itussel V. Langstaffe, 2 Doug. .514, 515, it was said by counsel in argument, that,
"as to the bankruptcy, it had been frequently ruled by Lord Mansfield at Guildhall, that
it is not an excuse for not making a demand on a note or bill, or for not giving notice of
non-payment, that the drawer or acceptor had become a bankrupt; as many means may
remain of obtaining payment, by the assistance of friends or otherwise." But the case
itself turned on anotiicr point. This statement, however, was recognized as law by
Lord Elienborough, in Warrington v. Furbor, 8 East, 242 ; and in Esdaile v. Sowerby,
II id. 114, he said : " It is too late now (1809) to contend tliat the insolvency of the
drawer or acceptor dispenses with tlie necessity of a demand of payment or of notice of
the dishonor." So, in Nicholson r. Gouthit, 2 II. Bl. 609, Eyre, C. J. said : " It sounds
harsh that a known bankruptcy should not be equivalent to a demand or notice ; but
the rule is too strong to be dispensed with." Sec Bowes v. Howe, 5 Taunt. 30, 16
East. 112; Sands v. Clarke, 8 C. B. 751. So also Parsons, C. J., Bond v. Farnham,
5 Mass. 170; Shaw l\ Reed, 12 Pick. 132; Granite Bank v. Ayers, 16 id. 392; Mead
V. Small, 2 Grecnl. 207 ; Grcely v. Hunt, 21 Maine, 455 ; Hunt v. W.adieigh, 26 id.
271 ; Orear v. McDonald, 9 Gill, 350 ; Armstrong v. Thruston, 1 1 Md. 148, where insol-
vency was held to bo no excuse for non-demand of the maker himself, and a demand
on the assignee was held insufficient. Sec also Benedict v. Caffe, 5 Duer, 226. Sed
qumre. Edwards v. Thayer, 2 Bay, 217 ; Bruce v. Lytle, 13 Barb. 163, where a demand
was made but five days after maturity, and tiie indorser was discharged.

(7) Crossen v. Hutchinson, 9 Mass. 205.

(r) Sandford v. Dillaway, 10 Mass. 52; Farnum v. Fowlc, 12 id. 89; Jcrvey v.
Wilbur, 1 Bailey, 453 ; Aliwood v. Haseldon, 2 id. 457, where the same rule was ap-
plied to a note indorsed after maturity ; Hightowcr v. Ivy, 2 Port. Ala. 308. Contra,

CH. XI.] EXCUSES FOR ABSENCE OF DEMAND OF PAY:MENT. 447

The reason is to be found in the stringency of tlie rule requiring
demand, coupled witli the fact that it is possible tliat the note
may still be paid by the assistance of friends, or otherwise.

As between third parties, whether a presentment to the maker
may not be dispensed witli,has been treated as a distinct question
from that of the necessity of presentment as against the maker or
indorser of a note.(s) This question has arisen where a note is
received in payment, both parties being ignorant of the insol-
vency of the maker ; and the point is, whether the person who
takes the note may not recover of the party from whom he
receives it, without any presentment to the maker. For a con-
sideration of this subject reference may be had to the chapter on
Payment. (/!) As neither death alone, nor insolvency alone, will
excuse a want of demand, so the death of the maker leaving his
estate insolvent will be insufficient. (w)

Insolvency also conies into consideration as an excuse, where
it is connected with other circumstances. Thus, where the
drawer had become bankrupt, and the acceptor unable to pay ;
the latter, in the presence of both holder and drawer, declared
y that he should not pay the bill when presented ; a demand upon
him at maturity was held to be still necessary in order to entitle
the holder to prove the debt against the drawer's estate. (y) A
similar question also arises where the maker becomes insolvent,
and absconds ; this point will be treated subsequently, (i^) as

De Berdt v. Atkinson, 2 H. Bl. 336. Tliis case will be further considered in the
next chapter. In Clark v. Minton, cited 2 Const. R. 680, 682, the recorded insolvency
of the maker at maturity was held an excuse for want of demand. This case is re-
ported in 2 Brev. 185. See also Kiddell v. Peronneau, cited 2 Brev. 188.

(s) Maule, J., Sands v. Clarke, 8 C. B. 751, 761.

{t} Infra, Vol. 11. ch. 7. The cases on the subject of payment will be seen to be ia
i state of conflict, and the law on the point under consideration would probably depend
upon the view entertained by the courts of any particular State on the general subject
of payment.

(«) Gower i;. Moore, 25 Maine, 16 ; Lawrence v. Langley, 14 N. H. 70, an action
against the indorser of a joint note, one of the makers of which had died insolvent
and the other had fiiiled ; Johnson v. Harth, I Bailey, 482. In Davis v. Francisco,
11 Misso. 572, where it appeared that the indorser, when he indorsed the note, which
was done after maturity, knew the fact of the maker's death, a demand was held un-
necessary, Scott, J. dissenting. The fact of knowledge, it is conceived, could hardly
make any diflerence in the law.

(y) Ex parte Bignold, 2 Mont. & A. 633, 1 Deac. 712. How far declarations of the
patties may affect the question of excuse will be considered in/ra.

(«;) Infra, p. 449 et seq.

448 NOTES AND BILLS. [CH. XI

also the conduct necessary to be pursued by the holder wliere
the note was indorsed for the accommodation of the maker, and
the latter has failed. (.X')

In case of a partnership note and a failure of the firm, it will
still be necessary to present to one of the partners, or to use due
diligence to find one ; a demand at what was their place of
business before failure, but not occupied by either of them at
maturity, is insufficient. (y)

3. Of other Circumstances.

With regard to impossibility connected with the method of
presentment, it has already been said that the party wlio makes
the demand must have the note with him at the time ; but if the
note or bill is lost, it is obvious that this requirement cannot
be complied with. (2:) Yet this fact will not excuse want of
presentment, as will be seen subsequently, (a)

With respect to the impossibility of presentment as to time, a
question may arise where the holder receives a note so near
maturity that it will be impossible for him to make a demand
before that time. This will be connected with the point, as to
what effect the distance of the place of residence or of business
of the maker will have upon the subject of excuse, and will be
considered in that connection. (6)

We have already seen that a neglect to present negotiable
paper in which no particular time is mentioned for making the
demand, is excused, if the holder, within the period at which he
should have presented it, puts it into circulation. (c)

Where neither the maker nor his last and usual place of busi-
ness or of residence can, by the exertion of due diligence, be
found, tlie holder may, by showhig these facts, hold an indorser
liable. ((/) Thus, where the maker of a note is a sailor, who has

(x) hfra, p. 555.

(y) Granite Bank v. Ayers, 16 Pick. 392. See infra, noted.

(z) Tnfm, Vol. II. ch. 9.

(«) Infra, Vol. II. ch. 9.

(h) Infra, p. 456.

(d) Duncan v. M'Cullough, 4 S. & R. 480 ; Franklin v. Verbois, 6 La. 727. In this
case tlie notary certified, "that diligent inquiry was made at several places of public
resort in tliis city and elsewhere for the drawer of the note, in order to demand payment,
but he could not be found, nor any person who could tell where he was to be found." Tho

CH. XI.] EXCUSES FOR ABSENCE OF DEMAND OF PAYMENT. 44?

no esta))lislied place of abode, and is at sea when the note ma-
tures, proof of these facts will constitute a sufficient excuse for
non-prescntracnt.(e) But if he has a place of residence where
his family arc living when the note matures, it will be necessary
to present it there. (/)

Where the maker has absconded, according to many author-
ities, the holder is entitled to recover of an indorser, by simply
proving this fact and due notice, without showing any further
search. (ij") But in a late case in Massachusetts it has been held

defendant introduced testimony to show tluit the maker was living with his mother in the
same city where the protest was made. The demand was held sufficient to charge the in-
dorser. Ballard, J. said : " There is no evidence to show that the holder of the note, or
the notary, knew the domicil of the maker ; and we are of opinion that making diligent
inquiry for the maker, and for his domicil, without effect, excuses the want of a formal
demand." In Stewart v. Eden, 2 Caines, 121, the general principle seems to be taken
for granted, though a demand was actually made on a clerk of the maker. In Helme v.
Middleton, 14 La. Ann. 484, a firm on whom a draft had been drawn had dissolved prioi
to the maturity of the draft, leaving no place of business, nor could they be found when
the draft matured. The drawer was held. We have already seen, that, where either of
the partners could have been found, by the use of due diligence, the holder would have
been bound to present the draft to him. Supra, p. 448, note y. See Galpin v. Hard, 3
Me Cord, 394.

(e) Moore v. Coffield, 1 Dev. 247 ; Beardsley, J., Taylor v. Snyder, 3 Denio, 145, 1.51.

( /■) Whittier v. Graffam, 3 Greenl. 82 ; Dennie v. Walker, 7 N. H 199. See Bel-
lievre v- Biid, 16 Mart- La. 186.

((/) In Anonymous, 1 Ld. Raym. 743, it is said that " The custom of merchants is,
that if B, upon whom a bill of exchange is drawn, absconds before the day of payment,
the man to whom it is payable may protest it, to have better security for the payment,
and to give notice to the drawer of tlie absconding of B ; and after time of payment
is incurred, then it ought to be protested for non-payment the same day of payment
or after it. But no protest for non-payment can be before the day that it is pay-
able. Proved by merchants at Guildhall, Trin. 6 W. & M., before Treby, Chief Jus-
tice. And the plaintiff was nonsuit, because he had declared upon a custom to pro-
test for non-payment before the day of payment." In Putnam v. Sullivan, 4 Mass. 45,
Parsons, C. J. said : " The first objection made by the defendants is founded on a want
of a demand of payment on the promisor when tiic note was payable. As to this ob-
jection, the facts are, that, on the first day of grace, which was the last day of February,
notice was left at the lodgings of the promisor, that the note would be due on the last
day of grace, with a request to pay it then ; but it also appears tliat before that time it
was known to the parties that he had absconded, and when the note was payable
was not to be found. The condition on which an indorser of a note is holden is, that
the indorsee shall present the note to the promisor when due, and demand payment of
it, if it can be done by using due diligence. Now it appears that when the note in this
case was due, it could not be presented to the promisor for payment, and that there was
no neglect in the indorsees. We are all, therefore, satisfied that the indorsers are holden
on their indorsement in this case, notwithstanding there was no demand on the prom-
isor." In Widgery v. Munroe, 6 Mass. 449, the maker before the note fell due " stopped
payment and went out of the country," and the court held that the plaintiff was excused
Vol. I.— 2 D

450 XOTES AND BILLS. [CH. XL

that, if the maker of a note absconds, leaving no visible property
which can be attached, a want of demand or of inqniry for him
is not thereby excused so as to charge an indorser, though the
latter knew of such absconding. (/«)

If the maker removes from the place in which he resided and
transacted business to another jurisdiction between the time a
note is made and its maturity, the holder will not be obliged to
go out of his own State in order to make a demand either on the
maker personally or at his new place of business or of resi-
dence, (i) Whether it will be necessary for the holder to use due

from demanding payment of him. In Hale v. Burr, 12 Mass. 89, Parker, C. J. said:
"It is well settled, that, if the promisor abscond before the day of payment, or has con-
cealed himself, the necessity of a demand is taken away. Due diligence to find him is
all that is required in the latter case ; and in the case of absconding, even that is not
necessary." There are also dicta to the same effect in Shaw v. Reed, 12 Pick. 132 ;
and in Gilbert v. Dennis, 3 Met. 495, 499, per Shaw, C. J. The point was decided in
Lehman v. Jones, 1 Watts & S. 126 ; Reid v. Morrison, 2 id. 401. Sec Duncan r.
M'CuUough, 4 S. & R. 480; Wolfe v. Jewett, 10 La. 383 ; Galpin v. Hard, 3 McCord,
394. In Gillespie v. Hannahan, 4 id. .503, Johnson, J. said : " It seems to be generally
agreed, that the absconding of the maker of a note, or the acceptor of a bill of exchange,
will excuse the holder from making a demand." See Gist v. Ly brand, 3 Ohio, 307. In
Taylor v. Snyder, 3 Dcnio, 145, Beardsley, J. lays it down as undoubted law, that ab-
sconding is an excuse; and in Spies v. Gilmore, 1 Comst. 321, his remarks arc cited
with approbaiion hy Jewett, C. J. See also Bruce v. Lytic, 13 Barb. 163.

(h) Pierce v. Gate, 12 Gush. 190, Shaw, C. J. said : " The court instructed the jury
that, if the maker had absconded, leaving no visible property subject to attachment, no
presentment of the note to the maker, or demand at his dwelling-liouse, or other in-
quiry for him, was necessary The court are of opinion that this direction is not

sustained by the rules of law, and that it is incorrect. We arc aware that in some of
the earlier cases in Massachusetts it was held that proof that the maker had absconded,
or failed, and become insolvent, so that a demand would be unavailing, would be an
excuse for want of presentment. But it has been decided, on consideration, and upon
principle, that the obligation of an indorser is conditional ; that is, tiiat he will be
answerable if, at the maturity of the note, tiic holder will present it to the maker for
payment ; and if, thereupon, the maker shall neglect or refuse to pay it, and the holder
will give seasonable notice to the indorser, he will pay it himself. These are the con-
ditions of his liability. The holder, therefore, to charge the indorser, must show a com-
pliance with these conditions, or that proper means have been taken to effect a com-
pliance with them, unless indeed he can prove a waiver of them by the indorser. And
this, wc think, is the rule as now settled. If tiie maker has left the Stale, the holder
must demand payment at his actual or last place of abode, or of business, within the
Slate." It is not stated in the report, but it is a fact personally known to us, that this
point was not argued, nor indeed raised, by counsel in this case. The defence was based
upon other grounds, because it was sup|)osed tiiat the decisions overruled by this case,
and the practice under them, had estal)lished the law.

(i) In M'Gruder v. Bank of Washington, 9 Wheat. 598, the maksr removed from
the District of Columbia to Maryland ten days before the note in suit matured, with-

CH. XI.J EXCUSES FOR ABSENCE OE DEMAND OF PAYMENT. 451

diligence to 'find the maker's last and usual place of business or
of residence in the place which he has left is unsettled, che au-
thorities being conflicting. (y) But wo consider that it is more in
accordance with the rules of law respecting demand to require

out the knowledge of the holder. The notary certified that he went to the place where
ihc maker last resided in order to demand payment, but not finding him there, and be-
ing ignorant of his place of residence, returned the note under protest. Held sufficient
to charge an indorscr. Wheeler v. Field, 6 Met. 290, where the maker had left New
York for Illinois ; Anderson v. Drake, 14 Johns. 114, where the maker had removed
from Albany to Canada, and a demand at the former place was held sufficient to charge
an indorscr ; Central Bank v. Allen, 16 Maine, 41, where the maker had removed from
Portland to the Western country, and a written demand at his former residence was held
sufficient; Reid r. Morrison, 2 Watts & S. 401, where the maker had left Ireland and
gone to America; Gillespie i\ Hajmahan, 4 McCord, 503, where the maker left Charles-
ton, and was supposed to have gone to Philadelphia ; Galpin ?•. Hard, 3 id. 394 ;
Gist V. Lybrand, 3 Ohio, 307 ; Widgery v. Munroe, 6 Mass. 449 ; Beardslei/, J., Tay-
lor V. Snyder, 3 Denio, 145. See the cases cited supra, p. 449, note/;

(j) In Wheeler v. Field, 6 Met. 290, Wilde, J. said: "The second ground of ex-
ception is, that the demand should have been made at the maker's last place of resi-
dence in the city of New York, unless it could be clearly proved that the plaintiffs had
made reasonable inquiries, unsuccessfully, to ascertain the same. And on this ground
we are of opinion that the exception is well sustained. The genei'al rule is, that to
charge an indorscr of a promissory note, a personal demand on the maker is to be
made ; or if he be not found where he ought to be found, and no place of payment is
specified, a demand at his place of abode or place of business is sufficient. If he re-
moves into a foreign country, or another State, a demand at his new place of residence

is not required The demajid should have been made at the maker's last place of

residence in New Y'ork, and the plaintiffs were bound to make diligent inquiries to ascer-
tain it. This we consider indispensable ; and as the jury were not so instructed, but, on
the contrary, were instructed that no demand, under the circumstances stated, was ne-
cessary, the defendant is entitled to a new trial, notwithstanding the finding of the jury
that the notary had used due diligence in this respect." In Galpin i'. Hard, 3 McCord,
394, the maker had removed, and it did not appear where he had gone. Johnson, J. said :
" I take it, it is a settled rule, that when the maker of a promissory note has removed from
the place where the note represents him to reside, and, for the same reason, where he did
reside at the time the note was made, the holder is bound to use every reasonable en-
deavor to find out where he has removed, and if he succeed, present it for payment."
But in Gist v. Lybrand, 3 Ohio, 307, the court say : " Whether a demand should be
made at any other place is not made a point, or adjudicated upon, in that case (M'Gru-
der z?. Bank of Washington, 9 Wheat. 598). But it seems to us a clear consequence
of the decision, that such demand is unnecessary. The fact of removal commits the
indorser, and dispenses with all demand, unless a particular place be appointed for the
payment of the note in the note itself." It is not clear from the case itself but that the
maker had absconded. If so, a diflfcrent rule might apply. The declaration averred
that diligent search had been made for the maker, but he could not be found ; also,
that he had secretly absconded. So, in Reid v. Morrison, 2 Watts & S. 201, Sergeant,
T. said • " It was therefore impossible to make a presentment to the maker in Ireland,
and it would seem the holder was not bound to search for him in a foreign country ; but
his removal dispensed with any further eflbrt, and made the indorser, ipso facto, liable

452 NOTES AND BILLS. [CH. XI.

that thvi holder should endeavor to find this last place of business
or of abode, and present the note there. Our reason for this is,
that it is no unfair or unreasonable presumption that the maker
left, at his place of business within the State, means and arrange-
ments for attending to the business which he began there and
left unfinished there. The different States of this country are
considered as foreign to each other in this respect. (^)

An opinion seems to have been intimated that the contiguity
of the old and new places of residence would have some effect
on the question of excuse, as relathig to this point ; thus, if the
maker acquires a new domicil in a town adjoining liis former
place of residence, but in a different State, that the rule respect-
ing due diligence would require a demand at the latter place. (/)
But this view cannot be sustained, we think, without producing
confusion and obscurity in the law, where precision and certainty
are of more importance than abstract justice, (w) When the

without it." In this case the maker had absconded. In Gillespie v. Hannalian, 4 Mc-
Cord, 503, diligent inquiry was made for the maker, and it was ascertained that he had
no place of residence in the city in which he made the note. The judge, at Nisi Prius,
hffld this to be insufficient ; but his ruling was reversed. The point now under consid«
eration does not seem to have been dwelt upon. In Dennie v. Walker, 7 N. II. 199,
the rule is stated by Upham, J., as follows : " A removal without the bounds of the
government, after the making of a note and before it becomes due, and where no place
of payment of the note is specified, renders a demand upon the maker unnecessary ; but
this is an exception to the general rule, and must be construed strictly. Anything less
than an actual change of residence, by removal without the State, would leave the rule
too uncertain. In case of mere absence from one's place of residence, it is immaterial
whether it is for a longer or a shorter period. If the maker has a known domicil or
place of business within the State, a demand of payment at such place is essential in
order to charge the indorser."

(k) Gillespie v. Hannahan, 4 McCord, 503. See the cases cited supra, p. 451, notc^.

(/) Wilde, J., Wheeler v. Field, 6 Met. 290.

(m) In Gillespie v Hannahan, 4 McCord, 503, Johnson, J. said, in substance : In the
case of Widgery v. Munroe, 6 Mass. 449, the court say, that if, on tiie day when the note
became due, the maker being then out of the country, the plaintiff was excused from
demanding payment of him, and it might seem unreasonable that, when lie had only
removed across an imaginary line separating two countries, that it should be dispensed
with. But it is equally unreasonable that the holder should be compelled to follow
him to St. Petersburg. The necessity of a certain rule leaves no alternative but the
adoption of one or the other of these extremes. There can be no comjjromise between
theni that will not work injustice. So in M'Grudcr v. Bank of Washington, 9 Wheat.
598, wlierc the new place of residence was but nine miles from the old one ; and
yet it was held that the liolder was not obliged to present the note at the latter
place. Johnson, J. said : " We think that reason and convenience are in favor of
sustaining the doctrine that such a removal is an excuse from an actual demand.
Precision and certainty are often of more importance to the rules of law than tbnir

CH. XI.] EXCUSES FOR ABSENCE OF DEMAND OF PAYMENT. 45R

removal is simply to another place within the same jurisdiction,,
due diligence must be used to find the maker at the place lo
which he has removed. (w)

Wo have already alluded to the circumstance of the note being
dated at a particular place, and the presumption to be drawn
therefrom. We should add, that neither this fact nor any other
excuses the want of due diligence ; it only raises (lie question.
What is in that case due diligence ? And we incline to think the
answer should be, that this date does not excuse a holder from
demanding payment of the maker elsewhere, if within the State,
and the holder knows, or ought to know, where he is ; but that
a holder is not bound to make more inquiry than within that
town, unless there be something which tells him that by going
elsewhere witiiin the State he will find him.

Where the maker, at the time of signing the note, lives in
another State from the one in which the note is dated and deliv-
ered, and in which the holder lives, a different question is pre-
sented. Where the party who receives a note under such cir-
cumstances knows, when he takes it, where the maker lives, and

abstract justice. On this point there is no other rule, that can be laid down, which will
not leave too much latitude as to place and distance. Besides which, it is consistent
with analogry to other cases, that the indorser should stand committed, in this respect,
by the conduct of the maker. For his absconding, or removal out of the kingdom,
the indorser is held in England to stand committed ; and although from the contiguity
and, in some instances, reduced size of the States, and their union under the general gov-
ernment, the analogy is not perfect, yet it is obvious that a removal from the seaboard
to the frontier States, or vice versa, would be attended with all the hardships to a holder,
especially one of the same State with the maker, that could result from crossing the
British Channel."

(n) Anderson r. Drake, 14 Johns. 114, where the maker had removed from New
York to Kingston, both places being in the State of New York, Thompson, C. J. said :
" I am inclined to think that where a note is not made payable at any particular place,
and the maker has a known and permanent residence within the State, the holder is
bound to make a demand at such residence, in order to charge the indorser. Whoever
takes such note is presumed to have made inquiry for the residence of the maker, in
order to know where to demand payment, and to assume upon himself all the incon-
venience of making such demand, and the risk of the maker's removing to any other
^lace before the note fiilis due. As the demurrer, therefore, in this case admits the per-
manent residence of the maker to have been at Kingston when the note fell due, and
that known to the plaintiff, he was bound to demand payment of the note at that
place ; and not having done so, the indorser is discharged." La. Ins. Co. v. Sham-
burgh, 14 Mart. La. .511, where the maker had removed from New Orleans to Plaque-
mine ; Bellievre v. Bird, 16 id. 186. See Gillespie v. Hannahan, 4 McCord, .503;
Wilde, J., Wheeler v. Field, 6 Met. 290 ; Sergeant, J., Reid v. Morrison, 2 Watts &
S. 401.

454 NOTES AKD BILLS. [CH. XI.

lias s,ufllcient time before the maturity of the note withm which
to cause a proper demand to be made upon the maker, it
would seem to follow that he should be considered as takina:
the risk of a proper presentment in the State where the prom-
isor resides. We think also that it follows from the general prin-
ciples relating to the contract of indorsement, that due diligence
would require a demand at the place in which the maker lives, (o)

(o) Taylor *;. Snyder, 3 Denio, 14.5. The facts of the case were, that the promisor,
a resident of Florida, made and dated the note in Troy, N. Y. The holder knew this
fact as early as a month or two before the note matured. The indorser also knew it at
the lime of indorsement, but no stress is laid upon this circumstance. The demand
was made on the indorser at Troy, and it was held insufBcient. Beardsley, J., in a very
able and elaborate decision, after stating that the fact that the note was dated at Troy
did not make it payable there ; and reviewing the cases and law on the subject of
excuse, saying that the excuses were exceptions to the general rule, which must bo
construed strictly, continued : " We arc, then, to inquire whether these exceptions arc
to be multiplied, and extended to a case where no change in the condition of either
party has taken place, where the maker, when the note was made and indorsed, had a
known residence in another State, and which had remained unchanged at the maturity
of the note. It is palpable that this exception, if made, must be placed on some new
principle ; it cannot be allowed on the ground which upholds the others. The facts iu
this case are unchanged, and as the reason for making an exception does not exist,
the exception itself siiould not be allowed. Unless, tlierefore, the general position is
true, that one who indorses for a maker who lives in another State may be held liable
without any demand being made on tiie maker, I tliink tlie defendant was not liable in
the case at bar. And if any such general rule of law as I have stated exists, it cer
tainly may be shown ; but that it has no existence is, as I believe, not only according tc
the universal understanding amongst commercial men, but also according to the settled
course of business in tiie commercial world. The indorsement of a note is an order to
the maker to pay the amount to the indorsee or holder, as is specified and agreed in
the note, and an engagement by the indorser, that if the note is duly demanded of the
maker, and not paid, or if it shall be found impracticable to make a demand, the in-
dorser will himself, on receiving due notice, pay the amount to the indorsee or holder.
Now, where such an order is drawn upon a maker who resides in another State, and
which is well known to the person in whose (iivor the order is drawn, upon what prin-
ciple can it be said that a demand of the maker is unnecessary ? The indorsee vol-
untarily consents to take such an order, and why should he not perform the condition
on which the ultimate liability of the indorser depends ? I confess I sec no reason
why lie should not. Here is no mistake, or misapprehension of fact, at the time tlio
indorsement is made. The indorsee knows where the maker resides, and that it is in
another- State. He knows that, by law, unless tlic intervention of a State line makes a
difference, the maker must be sought where lie resides, and the demand must i)e made
there. When the time for payment arrives, the maker is still at his former residence ;
the farts of tlie case are precisely as they were when the order was drawn Why, in
such case, should the State line make a dilference in the construction and icgnl cHTccl
of this contriict of the indorser? It was fairly entered into between tlie jjarties ; let it
then be fairly observed and performed by them. I can well understand why such an
order, made by an indorser upon tiie maker of a note, tlicn rvsklimj within t/iis Slate, but

CII. XI.] EXCUSES FOR ABSENCE OF DEMAND OF PAYMENT. 45?

But it will be seen from the authorities cited in the note, that
this view is not universally adopted. (/>)

The same doctrine has been held where the promisor lived in

who removes into another State before the note falls due, should receive a different
constrjiclion, and that it would be unreasonable to require the holder to follow the
maker to his new residence, in order to demand payment. Here a new and unlooked-
for event has occurred, which, like the absconding of a maker, or an inaliility to dis-
cover his residence, may very reasonably be held to excuse a demand. In these
respects, the indorser should be held to stand committed by the act of the maker. But
where the facts in reference to whicli the parties contracted were fully known to them,
and are in no respect changed, I am unable to discover any principle which will excuse
the maker from making a demand, or using proper diligence to make a demand, as in
ordinary cases. The intervention of a State line has, in my opinion, no possible bearing
on the question." Bank of Orleans v. Whittemore, Superior Ct. Mass., 20 Law Rep.
3.33, where the note was made and dated at Boston, and the maker resided in Newbern,
N. C. This case was affirmed in the Supreme Court, 12 Gray, Burrows r. Han-

ncgan, 1 McLean, 309 In this case, the maker lived in Newport, Indiana, and the noto
was made and dated at Cincinnati. A demand at the latter place was held insufficient
It will be observed that nothing is here said about the knowledge of the maker's residence
by the holder. In Smith v. Philbrick, 12 Gray, the maker, two years before the note,

which was payable at three months, was made, removed from Boston, where he had
lived and transacted business, to Port Lavacca, Texas, where he resided and conducted
his business when the note matured. The note was made and dated at Boston, between
which place and Port Lavacca the mail passed in twelve days. The notary certified
that he went with the note to the maker's place of business in Boston, and finding no
one there to pay the note, protested the same. Held, that a personal demand at Port
Lavacca was not necessary, unless the holder proved affirmatively that the holder of
the noie, at tiie time it became due, knew of the maker's residence ; that all tliat was
required was the exercise of duo diligence to make a demand in Boston, and that such
had been used in this case. Sed qucere. See infra, p. 4.59, note c.

(p) In Story on Prom. Notes, ^ 236, it is said ; " It seems also that, if the maker
of a promissory note resides and has his domicil in one State, and actually dates,
and makes, and delivers a promissory note in another State, it will be sufficient for the
holder to demand payment thereof at the place where it is dated, if the maker cannot
personally, upon reasonable inquiries, be found within the State, and has no knf)wn
place of business there." The autiiority which the learned author cites is He]jburn v
Toledano, 10 Mart. La. 643. It is not clear from the case whether the maker lived in
a different State from the one in whicii the holder resided, or removed after making the
note. Nor does it appear that the indorsee knew where the maker lived. Porter, J.
said : " Tiie statement of fiicts shows that the note was dated in New Orleans, but not
made payable there, and that the drawer resided in Kentucky at the time of the pro-
test, and does so now. The only question which this case presents is, whether the
liolder of the note was obliged to go out of tlie State to demand payment. There
is some difficulty as to the place where demand is to be made, when the maker of
& note or acceptor of a bill has been a resident of the State, and before the time of
payment has changed his domicil ; but if he lives in another country, the indorsees
cannot be presumed to know his residence, and all that the law requires of the holder
5s due diligence at that place where the note is drawn." It will be seen that the learned
judge cites, as an authority, the case of Anderson v. Drake, 14 Johns. 114, supra, p.

4nd NOTES AXD BILLS. [CH. XL

a different country from that in which the holder resided at the
time the note was indorsed to him.(<7)

It seems now to be well settled that mere distance is no excuse
for non-presentment,(r) although there are opinions to be found
in some of the earlier reports to the effect that the holder may
wait, on the day the note falls due, for the maker to come and
pay ; and if the note is dishonored, that a reasonable time will
be given within which to cause a proper demand to be made.(s)

But distance may have some effect in another point of view.
Thus, where an indorser transfers a note to the holder so soon
l)efore maturity that the former must know the impossibility of
the demand being made at the very day the note falls due, we
think that this indorser, with reference to his immediate indorsee,
would be considered as having waived his strict right to require
a demand at maturity. (^) But this cannot apply to the prior

453, note n, wliich is a case of removal to another country. In M'Gruder r. Bank of
Washington, 9 Wheat. 598, Johnson, J. said : " In case of original residence in a State
different from that of the indorser at the time of taking the paper, there can be no
doubt." He then goes on to state, that the question of removal to anotiier State
prior to maturity is a difficult one, and to decide that a demand at the latter place
is unnecessary. It is not easy to see which view the judge adopted.

(r/) Spies V. Gilmore, 1 Comst. 321, 1 Barb. 158, where this is considered as a legiti-
mate conclusion from the doctrine laid down in Taylor v. Snyder, 3 Denio, 145, supra,
p. 454, note o, Gardiner, J. dissenting, on the ground that " Expediency and public con-
venience require that the necessity of a personal demand should be coniinod to cases
where the maker resides within the States or Territories of the Union. It is ditlicult to
prescribe any other rule wiiich will not leave too much latitude as to place and dis-
tance, and of course be fluctuating where it should be certain. Instances will readily
occur to every one in which making a demand in a foreign country would be attended
with little inconvenience, and others in which it would be impracticable. Between
these extremes there is a wide interval whidi would be opened to litigation, which sound
policy requires to be closed."

(r) Johnson, J., M'Gruder i>. Bank of Washington, 9 Wheat. 598, 601, note ; Bank of
Orleans v. Wliittemore, supra, p. 455, note o. See also the cases cited supra, pp. 450 - 455.

(s) Haddock v. Murray, 1 N. II. HO. See Freeman v. Boynton, 7 Mass. 483 ; Par-
ker, C. J., Barker v. Parker, 6 Pick. 80.

(/) Abbott, J., Bank of Orleans v. Whittemore, 20 Law Rep. 333 ; Story on Prom.
Notes, 4 265 But in Chitty on Bills, 10th Lond. ed., p. 266, it is said : " The circum-
stance of the holiler having received a bill very near the time of its becoming due, is no
«xcusc for neglect to present it for payment at maturity ; for he might renounce it if ho
did not choose to undertake that duty, and send the bill back to the party from whom
he received it ; but if he keep it, he is bound to use reasonable diligence in presenting
it." Wc think that this should be (jualified according to the statement in the text. It
will be observed, that in the case |)Ut the indorser himself has lost Iiis remedy against
any prior indorser, unless under similar circumstances ; and the effect of ♦he indorse-
ment would |)rubably be the same as if the note were indorsed after niatu'ity

CH. XI.] EXCUSES FOR ABSENCE OF DEMAND OF PAYMENT. 457

indorsers, who transferred the note long enough before it fell due
to have a proper presentment made.(M) The same question would
occur where a joint note is indorsed, the indorser knowing that
the maivcrs lived so far apart that a demand on both could not be
made on the same day. Here also we thhik that if the holder
presents the note to one when it falls due, and to the others as
soon as he reasonably can, he has done all that duo diligence can
require, and would not lose his claim on the indorser. (?;)

What will constitute due diligence to find the maker cannot
be prescribed by any fixed rule to which all circumstances must
bend, as each case depends necessarily, in a great degree, upon
its own peculiar facts. It has been held, that if the holder goes
with a bill within reasonable hours to the house to which it is di-
rected, and finds the door closed, he is entitled to protest it with-
out any further inquiries for the drawer or acceptor ; (w) and
the same seems to have been held with reference to the maker of
a note in which no place of payment is specified. (.r) But we think
that some inquiry should still be made for the payor ; or at least
that this is the safer as well as the better way.(//)

(it) Story on Prom. Notes, § 265.

(v) Abbot, J., Bank of Orleans v. Whittemore, 20 Law Rep. 333.

(w) nine V. Allely, 4 B. & Ad. 624. But in this case, as reported 1 Nov. & M. 433,
it would seem that some inquiry was made for the acceptor. See Bu.xton v. Jones, 1
Man. & G. 83, 1 Scott, N. K. 19. In Ogden v. Cowley, 2 Johns. 274, some inquiry
was made.

(x) Shed V. Brett, 1 Pick. 413. In this case the noUiry testified that he made dili-
gent search for the promisors, but could not find either of them. Parker, C. J. said :
" And the question is, whether going to their place of business, finding it shut, no per-
son being left there to answer any inquiries, is due diligence We put out of the case
the declaration of the witness, that he made diligent inquiry, because it does not appear
where or of whom he inquired ; and as the promisors both lived in Boston, if inquiry
was necessary, it would hardly seem that enough was made. It seems, however, by
the authorities, that what was done was sufficient, provided the witness went to the
place of business of the makers, in business hours, which is not stated in his testimony.
And if, upon further application to the notary, he is not able to state this fact, a new
trial m:iy he had, or the plaintiflT ought to become nonsuit. But supposing this to be
with the plaintiff, he is entitled to recover." If the holder had done all that due dili-
gence required, then the fact that the makers had removed would seem to be immate-
rial. But the law is, that where the maker has removed to another place in the same
State, a demand at the last place, or inquiries to find it, arc indispensable. It is diflS-
cult to reconcile this case with the general rules of law concerning demand, and we
ioubt the decision.

(y) In Collins v. Butler, 2 Stra. 1087, one of the questions was, whether the plain-
tiff had shown suflTvuent by proving that the maker shut up the house and went away

VOL. I. 39

458 NOTES AND BILLS. [CH. XI.

The case may, perhaps, be different where a note or bill is pay-
able at a particular place, and the party sought to be charged lias
a right to require a demand at the place, (2) because a demand
auywhore else would be unavailing, and one at a place with
closed doors might be considered as only a useless ceremony.

It has been sometimes said, that using due diligence to find the
maker at the place where a note is dated will satisfy the require-
ments of the law upon the subject of demand ; (a) but if this
were a universal rule, it would, in effect, make a note payable at
a city or town merely because dated there, which is contrary to
the weight of authority,(6) and we prefer the view we have al-
ready given.

a month before the note matured. " And in this particular case Lee, C. J. held that
the plaintiff had not gone far enough, but ought to show that he had inquired after tho
drawer, or attempted to find him out." If the mere fact that the house is shut up is
sufficient, there would seem to be no necessity for the holder to go there at all ; and
unless this is necessary, the case just cited is in conflict with Shed v. Brett, 1 Pick. 401,
supra, p. 457, note x. In Ellis v. Commercial Bank, 7 How. Miss. 294, 303, Chiyton, J.
said : " In nearly all the cases which we have been able to find on this point, after a
very diligent search, the evidence shows that inquiry was made in the neighborhood
for the maker, or acceptor, when he was not found at his dwelling or place of business,
and thus an excuse for want of personal demand is furnished." The court, however,
refrained from deciding the i)oint, because it was not necessary to the case.

(z) In Howe v. Bowes, 16 East, 112, the declaration averred that the defendant, a
maker of a note payable at the Workington Bank, became insolvent, and wholly de-
clined and refused to pay at that place. The evidence was, that the Workington Bank
was closed, and no payment had been made there for some time before the suit. Tho
plaintiff obtained a verdict, and the court refused to grant a new trial. Lord Ellevhor-
ough, C. J. said : " As it is not disputed that the banking-iiouse was shut up, and that
any demand of payment whicli could have been made there would have been wholly
inaudible, that is substantially a refusal to pay their notes to all the world." This
judgment was reversed in the Exchequer Chamber, 5 Taunt. 30, on the ground that
the allegation itself was insufficient.

{a) Bay, J., Moodie v. Morrall, 3 Const. R. 367, said : " Charleston, being the
place where the note was drawn and indorsed, siiall be presumed to be the residence
of both for every mercantile purpose, and the use of due diligence to find out either of
them there will answer the demands of the law upon this subject. It would be a mon-
strous inconvenience and embarrassment to commerce, if the holder of a bill or note
was obliged to travel all over the world to find out the maker or indorser, in order to
give him notice of the non-payment. I take it, therefore, to be a well-established rule
of mercantile law at this day, that the use of due diligence, in the place or city where
the bill is drawn, to find out cither maker or indorser, is all that is requisite." In tho
ca.se itself, however, a demand was made at the house of the maker, on his wife, who
informed the notary that the former was out of town ; and this was held sufficient.
Sec III |)l)urn v. Toleduno, 10 Mart. La. 643.

(/;) Siijiid, p. 441, note X. See also tho remarks of Johnson, J., cited supra, p. 451,
note _;' ; of Tliompson, C. J., p. 453, note ;i.

CH. XI.] EXCUSES FOR ABSENCE OF DEMAND OF PAYMENT. 459

It may be said that a person who takes a note is under some?
obligation, at the time he receives it, to know or to inquire
where the maker lives ; and if so, and he neglects to do this,
refraining from all inquiry, he should suffer the consequences of
not being able to make a regular demand. It must certainly be
true that the holder cannot alter the terms or the essential prin-
ciples of the contract of indorsement, and they would require of
him at least as much as ordinary foresight and prudence would
seem to require. (c) It has been held that due diligence makes
necessary an inquiry of the indorsers or other parties to the note
for the place where the maker may be found, and because such
inquiry was not made, the indorsers were discharged. (c?) The

(c) We have already stated our opinion to be, that where the holder knows when he
takes the note that the maker lives in another jurisdiction, and there is sufficient time
before maturity to make a demand on the maker, such a demand is necessary. The
same rule should apply, we think, even if there be no knowledge of such residence,
provided there were sufficient time given to make the inquiries, and afterwards a de-
mand. For tliis reason we should doubt the authority of Smith r. Philbrick, supra,
p. 455, note o.

(c?) In Porter v. Judson, 1 Gray, 175, the certificate recited that the notary went " to
various places, making diligent inquiry of divers persons for the promisor, but could not
find him, nor any one knowing him, nor any one with funds for the payment of the note."
When the note became due, the maker was living in the same city with the indorser ; but
prior to giving the note he had resided elsewhere. Shaiv, C. J. said : " The presumption
is strong, not to say violent, that his home and place of business were known to the

indorsers, the last of whom indorsed the note to the plaintiffs, for value From

this statement, it appears that the notary knew the places of business of the indorsers,
but it does not appear that he inquired of them, and the probability is that he did not,
because if he had, the presumption is that he would have found the promisor." In
Wheeler v. Field, 6 Met. 290, the notary took the note to the office of the third in-
dorser, to inquire for the maker and the other indorsers, but was told that the third in-
dorser was out, and also that a person living near by could give the desired information.
This person, on being asked, did not know where the parties lived. The notary then
protested the note. It was held tliat the third indorser was discharged. Wikle, J. said :
" It cannot be doubted, that, if inquiries had been made of the payee or the other in-
dorsers, the maker's place of residence might have been ascertained." In Duncan v.
M'CuUough, 4 S. & R. 480, it was held that an indorser was not obliged to tell the holder
where the maker was to be found. In Packard v. Lyon, 5 Ducr, 82, a note had been
deposited in a bank for collection. The notary inquired of the bank where the maker
lived, and none of the officers could tell him. The directory was consulted, but the
name could not be found there. The notary then made a formal demand at the bank,
and on refusal to pay, protested the note. Held, that due diligence had not been used.
Slosson, J. said : '" It may be exceedingly inconvenient, at times, to find the place of
residence of the maker of a note ; but that forms no excuse for the want of the knowl-
edge, if it can be obtained. It was gross carelessness in the holder to send the note to
the bank for collection, without a memorandum indorsed on it, or accompanying it, to

4t)0 ■ NOTES AND BILLS. [CH. XL

reason given is, tliat, from the circumstances of the case itself,
there was a presumption that the indorser knew where the maker
was, and could give the requisite information ; where this rea-
son exists, there can be doubt of the rule ; but we are not pre-
pared to say that the law would always presume this reason and
necessity from the relation of the parties.

Want of presentment at maturity is excused by any inevitable
or unavoidable accident, not attributable to the fault of the
holder ; for this would bring it within the rule which excuses a
demand whenever it is morally or physically impossible. (^)

Among the circumstances recognized by Mr. Justice Story as
constituting an excuse are the following : The prevalence of a
malignant disease which suspends the ordinary operations of busi-
ness, and which would make it dangerous to enter the infected
district. (/) The presence of political circumstances amounting
to a virtual interruption and obstruction of the ordinary nego-
tiations of trade. (^'■) The breaking out of war between the
country of the maker and that of the holder. (A) The occupa-
tion of the country where the parties live, or where the note is

show where the maker was to be found. This was a duty whicli he owed both to the
bank and its notary ; and he is without excuse in tlirowing upon the hitter officer the
trouble, annoyance, and possible risk of finding out a fact for his benefit with which
he is presumed to be himself acquainted, and with which he ouglit to be acquainted
in fact." As to the necessity of consulting a directory, see Granite Bank v. Avers,
16 Pick. 392.

(e) Slorrs, J., Windham Bank p. Norton, 22 Conn. 213 ; Lord Ellenhoroiujh, Patience
V. Townley, 2 J. P. Smith, 223 ; Savage, C. J., Schofield v. Bayard, 3 Wend. 488.

(/) Story on Prom. Notes, §^ 257, 260. See infra, chapter on Notice. In
New York, l)y statute, R. S. 1852, Vol. IL p. 178, it is enacted, that, whenever the
board of health of the city of New York, or any other competent autliority, shall, by
public notice, designate any portion of that city as the .scat of an infections and con-
tagious disease, and declare communication with such district dangerous, it shall be
the duty of the clerk of the city and county to provide a book in which the luimes,
firms, and places of business of any inhabitant of the city shall be registered, if the
parties desire it. The parties are required to designate a place, in the registry, outside
the infected district, but within the county of New York, for the purpose of having n
demand of notes, drafts, or Ijills made, and to whicli notice may be sent. Any demand
made at, or notice sent to, such place is declared valid. In case of neglect to make the
registry, the holder may present the note, bill, or draft to the city clerk, and on dis-
honor, deposit a notice in the post-office directed to the proper parties, if they live
within the infected district.

(g) Story on Prom. Notes, §§ 257, 2C1. Patience v. Townley, 2 J. P. Sniiih, 223 ;
Kufh V. Weston. 3 Ks[). 54. See Ilopkirk i;. Pago, 2 Brock. 20.

(A) Story on Prom. Notes, ^^ 257, 262.

CH. XI.] EXCUSES FOR ABSENCE OF DEMAND OF PAYMENT. 461

payable, by a public enemy, which suspends commercial inter-
course, (i) Public and positive interdictions and prohibitions of
the State which obstruct or suspend commerce and intercourse. (7)
But it is also said that a violent storm will not excuse non-pre-
sentnieut at maturity, though a violent tempest which has so
broken up the roads or obstructed them as to prevent passing
might have this effect. (/fc) We should prefer to say, as to all these
excuses, that no one of them necessarily and always, by an ab-
solute presumption of the law, is sufficient (unless, perhaps, the
case of war be excepted), but only raises a prima facie presump-
tion, more or less strong according to circumstances, and consti
tuting an excuse, not in laiv, but in fact, if it comes within tlie
meaning and scope of the rule of impossibility. Ordinarily any
failure to present a note at the proper time, by reason of the
negligence of an agent, would discharge an indorser,(/) but where
the holder makes use of the public mail for the purpose of trans-
mitting the note to the proper place in season to have a legal de-
mand made, and without any negligence on his part, we should
say that he would not lose his remedy on an indorser,(w) if

(i) Story on Prom. Notes, §§ 257, 263.

{j) Story on Prom. Notes, §§ 257, 263.

(^j Barker v. Parker, 6 Pick. 80.

\l) Storrs, J., Windham Bank v. Norton, 22 Conn. 213, 219.

(m) Windham Bank v. Norton, 22 Conn. 213. Storrs, J. said : "No fault or im-
propriety is imputable to the plaintiffs, by reason of their having selected the public
mail as the mode of forwarding the draft in question to the bank in Philadelphia,
where it was payable. It is properly conceded by the defendants, that such mode
of transmission was in accordance with the general commercial usage and law, in
the case of paper of this description. Indeed, it is recommended in tiie books as
the most proper mode of transmission, as being the least hazardous, and therefore
preferable to a special or private conveyance. But although the public mail was a
legal and proper mode by which to forward this paper, it was their duty to use it
in such a manner that they should not be chargeable with negligence or unreason-
able delay. If, therefore, they put the draft into the post-office at so late a period
that, by the ordinary course of the mail, it could not, or there was reasonable ground
to believe that it would not, reach the place of its destination in season for its pre-
sentment, when due, we have no doubt that there would be, on their pai-t, a want of
reasonable diligence, which would exonerate the indorser. On the other hand, to
throw the risk of every possible accident, in that mode of forwarding the draft, upon
the holder, where there has been no such delay, would clearly be most inconvenient,
unreasonable, and unjust, as well as contrary to the expectation and understanding
of the indorser, who is presumed to be aware of the general usage and law, in re-
gard to the transmission by mail of this kind of paper, and must therefore be sup-
posed to require only reasonable diligence in this respect on the part of the holder;
and would indeed be inconsistent with the rule itself, which sanctions its transmission
39*

462 NOTES AXD BILLS. [CH. XI.

through any accident or disorder, or the negligence or mis-
take of the post-office clerks, the note does not reach the des-
tined place in season to make the demand on the very day

in that manner. It has been suggested tliat the principle should be adopted, that when
the holder resorts to the public mail, he should be required to forward the present-
ment at so early a period that if, by any accident, it should not reach the place of
its presentment in the regular course of the mail, there should be time to recall it,
and have it presented when and where it falls due ; or that, at least, it should be for-
warded in season to ascertain whether it reached there by that time, and to make such
a demand or presentment for payment as is required in the case of lost bills. We
find no authority whatever for any such rule, nor would it in our opinion comport
with the principle, now well established, requiring only reasonable diligence on the
part of the holder, or with the policy which prevails in regard to such commercial in-
struments. It would, in the first place, be the means of restraining the transfer of
such paper within such a limited time as to impair, if not to destroy, its usefulness and
value, arising out of its negotiable quality ; and, in the next place, it would in many
cases be wholly impracticable. The casualties incident to this mode of transmission
are most various in their character, and cannot of course be foreseen ; and they might,
in the case of forwarding mercantile paper, be such as to render it impossible to ascer-
tain its miscarriage, or to recall it in season to remedy the difficulty. In the case of
the draft now before us, for example, if it had been placed by the jilaintiffs in the post-
office at Windham, wliere they were located and transacted their business, for trans-
mission direct from thence to Philadelphia on the very day when they became the
holders of it, which was between three and four months before it became due, and by
an accident or mistake of the postmaster in the former i)lacc, similar to that which
occurred in this case at New York, it had been mailed to one of the most distant parts
of our country, or to a foreign country, which would not have been more singular than
that it should have been mistakenly mailed, as in the present case, for Washington, it
might not have been practicable for the plaintiffs to learn the accident or obviate its efi'ect
before the paper fell due. In short, such a rule as that suggested would be merely
artificial in its character, productive of great inconvenience and injustice in particular
cases, witiiout any corresponding general benefits, and change the whole course of busi-
ness in regard to a most extensive and important class of mercantile transactions.
Nor has any other arbitrary or positive rule been suggested which is not equally ob-
noxious to the same or similar objections. The only remaining inquiry is, whether the
plaintiffs are chargeable with negligence for not forwarding the draft in question by an
earlier mail from New York to Philadelphia. It was sent by the usual legal and proper
mode. It was deposited in the post-office in season to reach the place where it was
payable before it fell due, by the regular course of the next mail ; and there was no rea-
son to believe that it would not be there duly delivered. It was actually sent by that
mail, and, but for the mistake of the postmaster where it was mailed in misdirecting
the package containing it, would have reached its proper destination, and been received
there in season for its presentment when due. It in fact reached that place when it
should have done, but was carried beyond it in consequence of that mistake. As that
mistake could not be foreseen or apprehended by the plaiiititVs, it is not reasonable to
require tlicni to take any steps to guard against it. Indeed, they could not have done
so, as they bad no control or su])crvision over the postmaster. They had a right to
presume that the latter had done his duty. They could not know that !ie had misdi-
rected the j)ackagc, until it was too late to remedy the consequences. The ()c<nrrenco
of the draft being sent beyond its place of destination was, therefore, so fur as the

CH. XI.] EXCUSES FOR ABSENCE OF DEJIAXD OF PAYMENT. 4G3

of maturity. But all the authorities do not seem to adopt this
view.(w)

4. Of the Acts of a Parti/ which affect his Right to require
Demand of Payment.

The second class of excuses, which we will now consider, arise
from the acts, words, or position of a party, by means of which
he is not entitled to the demand, of the want of which he would
avail himself. If the drawer of a bill had no effects in the hands
of the drawee, and had no legitimate expectations, grounded
upon some definite arrangement, that the bill would be paid, we
have seen that he has no right to require a demand of it.(o)

plaintiffs were concerned, an unavoidable accident. It happened, not in consequence
of any delay of the plaintiffs in putting the draft into tlie post-otfice at so late a pferiod
that it could not, or probably would not, reach its destination in due season, but merely
in consequence of the act of the official to whom it was properly confided, done after
it was properly in his charge by the plaintiffs for transmission. The accident, more-
over, was of a very peculiar and extraordinary character, and quite different from those
which are ordinarily incident to that mode of transmission, and against which it would
be extremely difficult, if not impossible, to guard. It would have been equally liable
to occur at any time, when the draft should have been placed in the post-office. It was
not owing in any sense to the fault of the plaintiffs, but solely to that of the postmas-
ter. Under these circumstances, we do not feel authorized to impute any blame or
negligence to the plaintiffs. We are therefore of opinion that judgment should be ren-
dered for the plaintiffs." ^P

[n] In Schoficld v. Bayard, 3 Wend. 488, the holder of a bill payable in London
sent it by mistake to Liverpool. His agent at the latter place immediately sent it back
to the holder ; but by some oversight of the clerks in the post-office, it did not get to the
holder in time for him to forward it to London, although had it not been for the deten-
tion, there would have been sufficient time to have had a regular demand made. Savage,
C. J. said : " This case presents no impossibility, if due diligence had been used. The
plaintiffs should not have sent the bill to Liverpool at all. It is true that, after the let-
ter containing it had been left at Liverpool, it could not have reached London iu season ;
but it was the fault of the plaintiffs to have parted with the bill in the manner they did.
Instead of sending it to Liverpool, they should have sent it to London, and then it would
have been in season, and probably would have been paid. I am of opinion that, by the
law merchant, payment should have been demanded in London on the 12th of Novem-
ber, and that not having been done, and there being no impossibility to prevent it but
•what is attributable to the want of due diligence on the part of the holder, the defend-
ants are legally discharged, and are entitled to judgment." This case presents a some-
what different statement of ficts from that in Windham Bank r. Norton, 22 Conn. 213,
supra, p. 461, note m, and may perhaps be reconciled with it, on the ground that the
failure to present was connected, in its inception, with a mistake of the plaintiffs them-
selves.

(o) Terry v. Parker, 6 A. & E. 502, 1 Nev. & P. 752. Lord Denman, C. J. said :
" Many cases establish the fact that notice of dishonor need not be given to the drawer
In such a case ; and the reason assigned is, because he is in no respect prejudiced by

464 NOTES AND BILLS. [CH. XI.

But the parties subsequent to the drawer have still that right,
and are discharged by non-demand, although he is not.{p)

The reason why the drawer has no such right is twofold. In
the first place, ho had no right to draw and put into circulation
such a bill ; and, secondly, he can have no action or claim against
the acceptor, for whom he is a surety, for not paying, because
the acceptor was under no obligation to pay, and can suffer no
injury which does not spring from his own fault. The test must
always be in such a case, not whether the drawer had funds in
the hands of the drawee, nor what particular arrangement he
had made, but whether, in case of non-acceptance or non-pay-
ment, he can maintain an action against the drawee.

As by far the greater number of cases on this subject and its
rules and their qualifications have arisen with respect to excuse
for' want of due notice, it has been thought best to postpone a
fui'ther discussion of the topic until we treat of Notice. We
shall also consider under that head the question as to what effect
the making or indorsing a note for the accommodation of any
party thereto has on the subject of excuse.

It is obvious that any one may waive his right to presentment
and demand. This is sometimes done expressly, by an indorser
writing over his name, " I waive demand," or otlier similar
words. (r/) There may be also a const^ctive waiver arising, by
implication, from the acts or words of any particular indorser.
This subject of waiver of demand is also so intimately connected
with waiver of notice, that we prefer to consider them both to-
gether in the chapter on Notice. (r)

If an indorser belongs to two firms, one of which has signed
and the other indorsed the paper, it has been held that a demand
is still necessary. (5)

want of such notice, having no remedy against any other j)arty on the bill. This reason
equally applies to want of prcscntincnt for payment, since if the bill were jjrescnted,
and paid by the drawee, the drawer would become indebted to him in the amount, in-
Ftead of l)eiiig indebted to the holder of the bill, and would be in no way benefited by
such presentment and payment." Dollfus i-. Froseh, I Denio, 367 ; Commercial Bank
V. Hughes, 17 Wend. 94; Aborn v. Bosworth, 1 11. I. 401 ; Tarver r. Nance, ."J Ala.
712 ; Foard v. Womack, 2 id. 368. This subject will be further considered under No-
tice, itifni.

{p) Iitfiii, chapter on Notice.

(7) Woodman v. Thurston, 8 Cush. 157.

(r) Infni, chapter on Notice.

(«) Dwiglit V. Scovil, 2 Conn. 654. Sivi/t, C. J. said : " The circumstance that one

OH. XI.] EXCUSES FOPw ABSENCE OF DEMAND OF PAYMENT 465

Witli respect to the pleading in case of excuse, it will be seen
that an averment of presentment and demand of payment on a
promisor is supported by proof of circumstances amounting to an
excuse thereof. (/)

"We are unwilling to close this topic of excuse for non-
presentment without remarking, that the rule requiring present-
ment is so stringent, and rests upon reasons which require so
rigid an adherence to the rule, that it is not safe or prudent to
rely upon any of these excuses, except, perhaps, an express
waiver in writing on the paper itself.

A question might be raised in regard to the operation of a
waiver beyond the person who makes it. If a payee indorses a
note, and writes over his name, " I waive demand," he certainly
cannot complain if no demand is made. But are all subsequent
indorsers affected and bound by his waiver ? So, if there be
many indorsers, and the fourth indorser makes an express waiver
of demand, the three before him are certainly unaffected by this
waiver ; but are those who follow equally unaffected ? It might
be said, that whoever indorses after a written waiver is made
must be considered as assenting thereto, if he expresses no dis-
sent. But, in the absence of authoritative decisions, we should
say, on the general theory of waiver, that it cannot affect the
rights of any person other than the party who makes it.

It should also be said, that although the whole law of nego-
tiable paper rests upon the fact that such paper is intended to
be an instrument of mercantile business, and is adapted to this
purpose by this system of law, it is certain that the rules are the
same, and equally enforced, whether the parties affected by them
are merchants or not.

of the defendants was a member of both the companies who made and indorsed the
note can make no difference; for each company is to be considered as distinct persons,
with different funds and liabilities, and there is the same reason for presentment and
demand as if the companies were wholly different. If the companies should reside in
different and distant places, the drawing of bills on each other might be convenient in
the course of their business ; but, on the principle contended for, the company drawing
the bill might be subjected to pay it, because one of the partners belonged to both
companies when the company on whom it was drawn was solvent, and would have
paid the bill if it had been presented."
(t) Infra, chapter on Pleading.

Vol. I.— 2 E

466 ^ NOTES AND BILLS. [CH. XH.

CHAPTER XII.

OF NOTICE OF DISHONOR.

While the duties of presentment and of notice of dishonor are
distinct, they are so far similar that much that was said of pre-
sentment, as to the persons by whom and to whom, the form and
manner, and excuses for the non-performance of the duty, are
applicable to both topics, yet there are important differences be-
tween them ; and it seems better to treat of both topics inde-
pendently, even at the risk of some actual and more apparent
repetition.

We shall examine, first, the form of the notice ; secondly, the
manner in which it should be given ; thirdly, the place to which
it should be sent ; fourthly, to whom ; fifthly, by whom ; and
sixthly, when it should be given. Excuses for want of notice
will be considered in the next chapter.

SECTION I.

OF THE FORM OF THE NOTICE.

This is so far immaterial that neither the law nor mercan-
tile usage prescribes any exact form or phraseology to be used
invarialjly, or even generally. (m) But there are certain essential
requisites which the notice must contain ; and these must be
fully stated, accurately and intelligibly. In theory, a notice
should describe the bill or note in such a way that it could not

(m) Tliompson, J., Bank of Alexandria v. Swann, 9 Pet. 33. In Hartley v. Case, 4
B. & C. 339, the rule is stated hy Lord Tentenlen, C. J. as follows : " Tlicre is no pre-
cise form of words necessary to be used in giving notice of the dishonor of a liill of
exchange, but the language used must be Hucli as to convey notice to the party what
the bill is, and that payment of it has been refused by the acceptor." So Fletcher, J.,
Ilousatonic Bank v. Laflin, .•) Cush. 546 ; Kilgoro v. Bulklcy, 14 Conn. 362 ; Ucedy
i;. Seixas, 2 Johns. Cas. 337 ; Spann v. Baltzcll, 1 Fla. 301 ; Brewster v. ArnCid, 1
Wise- 264.

CH. Xn.] THE FORM OF THE NOTICE. 467

be mistaken ; should state the presentment, and the dishonor
of it ; should be dated ; should say that the party to whom the
notice is sent is looked to for payment ; should state where the
note is, that the party notified may find it ; and should state who
the holder is, and who gives the notice, or at whose request it is
given. Such at least are the elements of a full, regular, and
perfectly safe notice. And formerly courts have looked upon all
of these as so far essential, that the entire failure of any one of
them would go far to vitiate the notice.

c Perhaps this early strictness was excessive ; but it is at least
quite as certain that the laxity shown in some modern cases, in
which far too much regard is paid to the seeming equity of the
particular case, has tended to create much difficulty in determin-
ing what is now absolutely essential to the sufficiency of a notice.
In some case or other almost every one of the elements above enu-
merated has been disregarded ; and there seems to be a general
consent, especially of the American courts, that some of these
are quite unnecessary. In a brief but very excellent treatise on
Bills, (?;) published in England, it is said : " All that is necessary
is to apprise the party liable of the dishonor of the bill in question,
and to intimate that he is expected to pay it." But the weight
of American authority is against the express requirement of the
statement of demand, and it would therefore follow that nothing
more is necessary than a statement that the bill or note is dis-
honored. But this seems to us to be going somewhat too far.

All the cases agree that the dishonor of the bill or note must be
clearly stated ; indeed, it is difficult to see that the notice could
be effectual for any purpose whatever, if this were omitted. (z^)
The rule, as stated in some of the English cases, is, that it ought
to appear on the face of the instrument " in express terms, or by
necessary implication," that the bill or note was presented and
dishonored, (a;) But this method of laying down the rule has

(v) Byles on Bills, 213. In Chitty on Bills, lOtli Lond. ed., 299, it is stated tha.
" there are two requisites which are indispeusahle to a good notice, namely, a descrip-
tion of the bill and an intimation of its being dishonored."

(w) Solarte v. Palmer, 7 Bing. 530, 1 Cromp. & J. 417, 1 Tyrw. 371. This case was
taken from the Exchequer Chamber to the House of Lords, and confirmed there.
1 Bing. N. C. 194, 8 Bligli, N. S. 874, 2 Clark & F. 93 ; Gilbert v. Dennis, 3 Met.
495. See Lockwood v. Crawford, 18 Conn. 361.

(x) Tindal, C. J., Solarte v. Palmer, 7 Bing. 530, 1 Cromp. & J. 417, 1 Tyrw. 371.
The rule is so stated by Park, J. in this case, as decided by the House of Lords in

4:66 NOTES AND BILLS. [CH. XU.

been objected to as too stringent, and it has been said that " it is
enough if it appear by reasonable intendment, and would be
inferred by any man of business, that the bill has been presented
to the acceptor, and not paid by him."(y) It is difficult to recon-
cile the cases in that country as to what form of words amounts
to a satisfactory information respecting the fact of dishonor, and
to deduce any general rules which may apply to all cases. It
seems to be well settled, however, that the mere statement of the
fact that a note or bill is unpaid is insufficient ; (z) but if in ad-
dition some words which apply to the protest are used, such as
"noting,"(a) " charges," (Z>) &c., the defect will be remedied.
With respect to the word "returned," there seems to have been
a conflict of opinion between the Court of Common Pleas and
those of the Exchequer and the Queen's Bench, the former hav-
ing been of opinion that it was not sufficient,(6') and the latter
that it was, because it was a technical expression well understood
as applying to negotiable paper which has been dishonored. (<;?)
The word "dishonored" is sufficient. (e) It would seem that
less strictness is required in case of a verbal notice than where
it is written, or that a want of precision in the notice may be
cured by the answer. Thus, when the clerk of the holder, the
day after the maturity of the bill, told the drawer that the bill

1 Bing. N. C. 194. It is so laid down by Tindal, C. J., in Boulton v. Welsh, 3 Bing.
N. C 688.

(y) Parke, B., Hedger v. Steavenson, 2 M. & W. 799.

[z) Boulton V. Welsh, 3 Bing. N. C. 688 ; Strange v. Price, 10 A. & E. 125 ; Phil-
lips V. Gould, 8 Car. & P. 355 ; Furze v. Sharwood, 2 Q. B. 388 ; Bailey v. Porter,
14 M. & W. 44, seems inconsistent with the previous cases ; but it will be seen that the
bill was accepted payable at a specified place. It will be remarked, however, that no
stress was laid upon this fact in the language of the judges who delivered opinions.
This rule was much relaxed in Paul v. Joel, 3 H. & N. 455, where the notice was, that
" A's acceptance to B, .£500, due, &c., is unpaid. Payment to C. & Co. is requested
before 4 o'clock." Held sufficient.

{n) Hedger v. Steavenson, 2 M. & W. 799; Armstrong v. Christian!, 5 C. B. 687.

[h) Grugeon v. Smith, 6 A. & E. 499 ; Everard v. Watson, 1 Ellis & B. 801.

(r) Boulton V. Welsh, 3 Bing. N. C. 688. But the later cases in this court seem to
be receding from the ground first taken. Sec Tindal, C. J., Messenger v. Southey, 1
Man. & G. 76.

(d) Hedger v. Steavenson, 2 M. & W. 799 ; Lewis v. Gompcrtz, 6 id. 399 ; Grugeon
V. Smith, 6 A. & E. 419 ; Furze v. Sharwood, 2 Q. B. 388. See the remarks o( Liftle-
dale and Coleridi/i>, JJ., in Strange v. Price, 10 A. & E. 125.

(c) Woodthorpo v. Lawes, 2 M. & W. 109; Stocken v. Collin, 7 id. 515; Row-
lands V. Springett, 14 id. 7; King i-. Bickley, 2 Q. B. 419; Smith t;. Boulton. 1
Hurl. & W. 3.

CH. XII.] THE FORM OF THE NOTICE. 469

had been duly presented, and tliat the acceptor could not pay it,
and the drawer replied that he would see the holder about it,
this was held to be sufficient evidence to warrant the jury in
finding that the fact of the dishonor of the note was sufficiently
communicated to the drawer.(/) Some of the later cases seem
to relax the very stringent rule as originally laid down, and the
first authoritative decisions have been sometimes regretted. But
the rules of law on this subject are still exact. (^)

(/) Metcalfe v. Richardson, 11 C. B. 1011. See Paul v. Joel, 3 H. & N. 455.

((/) Parke, B., Allen v. Edmundson, 2 Exch. 719 ; Lord Campbell, C. J., Everard v.
Watson, 1 Ellis & B. 801. The following notices have been iield insufficient, for not
stating tiie fact of dishonor. " I am desired to apply to you for the payment of tlie sum
of £ 150, due to myself, on a draft drawn by Mr. Case on Mr. Case, wliicli I hope you
will, on receipt, discharge, to prevent the necessity of law proceedings, which otherwise
will immediately takei)lace." Hartleys. Case, 4 B. & C. 339. " A bill drawn by Mr.
J. K. upon Messrs. J. & Co., and bearing your indorsement, has been put into our
hands by the assignees of Mr. J. R. A., witli directions to take legal measures for the re-
covery thereof, tmless immediately paid to yours," &c. Solarte v. Palmer, 7 Bing. 530,
supra, p. 467, note iv. " The promissory note, &c. became due yesterday, and is returned
to me unpaid." Boulton v. Welsh, 3 Bing. N. C. 688. " Messrs. S. & Co. inform Mr. P.
that J. B 's acceptance, &c. is not paid ; as indorser, Mr. P. is called upon," &c. Strange
V. Price, 10 A. & E. 125. " A bill, &c. lies at my office unpaid." Phillips v, Gould,
8 Car. & P. 355. " The bill, &c. is not took up, and 4s. 6c?. expenses ; and the money
I must pay," &c. Messenger v. Southey, 1 Man. & G. 76. " A bill, &c. is unpaid, and the
person at whose house it is made payable don't speak very favorably of the acceptor's
punctuality." Furze v. Sharwood, 2 Q. B. 388. " A bill, &c. is unpaid, and lies due at
Mr. J. F.'s," &c. Id. " A bill, &c. lies due and unpaid at my house." Id. " W. H.'s
acceptance, &c. is unpaid. He has promised to pay it in a week or ten days," &c. Id.

The following notices were held to state the fact of dishonor sufficiently. " Your
note has been returned dishonored." Lord Abinger, C. B., Edmonds i'. Gates, 2
Jur. 183. "Mr. E. is unable to pay the note for a few days; he says he shall be
ready in a week," &c. Margesson ?;. Goble, 2 Chitty, 364. " A promissory note, &c.,
has been returned unpaid, and I have to request that you will please remit the amount
thei-eof, with Is. &d. noting." Hedger v. Steavenson, 2 M. & W. 799. " A bill, &c.
is dishonored and unpaid, and I am desired to give you notice thereof, and request
that the same may be immediately paid." Woodthorpe v. Lawes, 2 M. & W. 109.
" A bill, &c. has been presented for payment to the acceptor thereof, and returned dis-
honored, and now lies overdue and unpaid," &c. Lewis v. Gompertz, 6 M. & W. 400.
" I am instructed to give you notice that a bill, &c. has been dishonored." Stocken v.
Collin, 7 M. & W. 515. "An acceptance, &c. is unpaid, and I request your imme-
diate attention to it" Bailey u. Porter, 14 M. & W. 44. " Bill, &c. dishonored."
Rowlands v. Springett, 14 M. & W. 7. " The bill is this day returned, with charges."
Grugeon v. Smith, 6 A. & E. 499. " The acceptance, &c. has been presented for pay-
ment, and returned, and now remains unpaid." Cooke v. French, 10 A. & E. 131, note b.
'' Your draft, &c. is returned to us unpaid, and if not taken up this day, proceedings
will Le taken against you for the recovery thereof." Robson v. Curlewis, 2 Q. B. 421.
"A bill, &c. lies at, &c., dishonored." King v. Bickley, id. 419. " We beg to ac-
quaint you with the non-payment of A's acceptance, &c., amounting, with expenses,

VOT-. I. 40

470 / NOTES AND BILLS. [CH. XH.

Although in some of the cases in America the rule is stated in
the words of Lord Tindal, C. J. and Parke, J., yet it does not
seem to be so stated generally, and the tendency of the authori-
ties is towards the more liberal application ; (h) but still it is clear
that something more than the mere fact of non-payment must
appear. (t) The reason is, that it does not follow that a note is dis-

to, &c., wliich remit to us in course of post, without fail." Everard v. Watson, 1 Ellis
& B. 801. " A bill, &c. became due, &c., and is unpaid. Noting, 5s." Armstrong v.
Christiani, .5 C. B. 687. A notice by an attorney as follows : " I am requested to
apply to you for payment of, &c., the amount of an overdue acceptance drawn by you,
&c., and to inform you that, unless the same be paid to me, with noting, interest, and
5s. for this application, proceedings will be taken," &c. Wathen v. Blackwell, 6 Jur.
738. A parol notice to the following effect : " I called to tell Mr. A. that a bill, &c.
was presented, &c., is unpaid and dishonored," &e. Smith i\ Boulton, 1 Hurl. & W. 3.

{h) Story, J., Mills v. Bank of U. S., 11 Wheat. 431 ; Sliaw, C J., Gilbert v. Den-
nis, 3 Met. 495 ; Beardsley, J., Wynn v. Alden, 4 Denio, 163.

(i) Gilbert v. Dennis, 3 Met. 495 ; Pinkham r. Macy, 9 id. 174 ; Dole v. Gold, 5
Barb. 490 ; Ransom v. Mack, 2 Hill, 587 ; Sinclair v. Lynah, 1 Speers, 244 ; Town-
send V. Lorain Bank, 2 Ohio State, 345 ; Armstrong v. Thruston, 11 Md. 148 ; Man-
ning V. Hays, 6 id. 5 ; Boehme v. Carr, 3 id. 202 ; Nailor r. Bowie, id. 251 ; Graham v.
Sangston, 1 id. 59. In Gilbert v. Dennis, 3 Met. 495, Shaiv, C. J. said, after referring
to the case of Mills v. U. S. Bank, 11 Wheat. 431, which had been cited in argument
as an authority to show that the notice need not state the fact of dishonor: "As to the
sufficiency of the notice, the opinion was delivered by Mr. Justice Story. Some particu-
lar expressions, taken alone, would seem to warrant the position for which it is cited.
But taking the whole together, and in reference to the case then before the court, wo
think it is not opposed to the rule as stated in the English cases." After carefully
reviewing the authorities, the learned judge continued: "We have thus attempted, at
the risk of being somewhat tedious, to ascertain what the true rule is upon this subject,
on account of the extreme importance of certainty and uniformity in the rules of law
applicable to the rights and duties of holders and other parties to notes and bills of ex-
change. And we take that rule to be, that, as an indorser is liable only conditionally
for the payment, in case of a dishonor of tlie note at its maturity by the maker, and
notice thereof to the indorser, in order to charge him, notice of such dishonor nmst
be given him by the holder or his agent, or some i)arty to the bill ; that mere notice of
non-payment, which docs not express or imply notice of dishonor, is not such notice as

will render the indorser liable This notice comes from an individual, not from a

bank. It was delivered at 11 A. M. There would then be no default and no dishonor,
unless a demand had been made on the promisor. An averment, therefore, that it was
unpaid, did not, by necessary imijlication, or reasonable intendment, amount to an aver-
ment or intimation that payment had been demanded and refused, or that the note had
been otherwise dislionored." Some of tlic earlier cases seem to have been less strict, and
to have decided that a notice was sufficient if it put the indorser on inquiry ; but we uro
aware of no recent decisions to this eflect. See Hank of Cajjc Fear v. Seawell, 2 Hawks,
560; Chewningr. Gatewood, 5 How. Miss. 552; Bank of U. S. v. Norwooil, 1 Harris
& J. 423 ; Sussex Bank v. Baldwin, 2 Harrison, 487, 490; Shrievc r roiiibs, 1 Littell,
194 ; Kcedy v. Seixas, 2 Johns. Cas. .337 ; Bank of Bochester i-. Gould, 9 Wend. 279.

The following notice was held sufficient, the note being payable at a specified place :
'' I addressed written notices to the indorsers of the note therein, informing them that

CII. XII.] THE FORM OF THE NOTICE. 471

honored because it is unpaid, for we have seen that the holder is:
obliged to use reasonable diligence to find the maker and acceptor,
and to present the bill to him. This docs not apply where a note
or bill is made payable at a specified place, and consequently the
notice may be sufficient in such a case if it appear simply tliat
the note or bill was unpaid. (j) The word "protested" used in
a notice clearly implies that the note or bill has been dishonored,
in all cases where a protest is necessary ; (k) and by the weight
of authority this word sufficiently designates that the necessary
steps have been taken even in the case of inland bills (/) and
promissory notes, (w) where the law docs not require a protest.

In the earlier English cases it has been regarded as a third
requisite to a valid notice, that it should state that the party to
whom the notice was sent was looked to for payment. (w) But
there does not seem to have been any express decision to this
point, and from the later cases it would seem to be considered
that this is not essential, because it is implied from the fact of
the bill being protested. (o)

they were severally held liable for the payment thereof." Graham v. Sangston, 1 Md.
59. So were the following notices, where the note was payable at a bank. " The note
of, &c., which you indorsed, fell due this day, and remains unpaid." Clark v. Eldridge,
13 Met. 96. " I addressed written notices to the indorsers, &c., informing them that
it had not been paid," &c. Hunter v. Van Bomhorst, 1 Md. 504.

(j) Clark V. Eldridge, 13 Met. 96. See Pinkham v. Macy, 9 id. 174 ; Gilbert v. Den-
nis, 3 id. 495 ; Housatonic Bank v. Laflin, 5 Gush. 546 ; Graham v. Sangston, 1 Md.
59 ; Hunter c. Van Bomliorst, id. 504 ; Sasscer v. Farmers' Bank, 4 id. 409.

{k) Crawford v. Branch Bank, 7 Ala. 205 ; Spies v. Newberry, 2 Doug. Mich. 495.
In De Wolf v. Murray, 2 Saiidf 166, a statement by an indorsee charging the indorser
with " protested exchange," giving the names of the drawer and acceptor, the amount
and charges, was held sufficient to warrant a finding by the jury that this contained
sufficient intimation of dishonor.

(/) Saltmarsh v. Tuthill, 13 Ala. 390.

(m) Mills V. Bank of U. S., 1 1 Wheat. 431 ; Bank of Alexandria v. Swann, 9 Pet. 33 ;
Cook I'. Litchfield, 5 Sandf 330, 5 Seld. 279 ; Cayuga Co. Bank v. Warden, 1 Comst.
413, 2 Seld. 19 ; Youngs v. Lee, 2 Kern. 551, 18 Barb. 187 ; Beals v. Peck, 12 Barb. 445 ;
Kemer v. Downer, 23 Wend. 620 ; Crocker v. Getcliell, 23 Maine, 392 ; Bank of Roches-
ter V. Gould, 9 Wend. 279 ; Howe v. Bradley, 19 Maine, 31 ; Smith v. Little, 10 N. H.
526 ; Mainer v. Spurlock, 9 Rob. La. 161 ; Kilgore v. Bulkley, 14 Conn. 362 ; Housatonic
Bank v. Laflin, 5 Gush. 546 ; Brewster v. Arnold, 1 Wise. 264 ; Denegre v. Hii-iart, 6 La.
Ann. 100 ; Burgess v. Vreeland, 4 N.J. 71. Contra, Piatt v. Drake, 1 Doug. Mich. 296.

(n) Buller and Ashlinrst, JJ., Tindal v. Brown, 1 T. R. 169.

(o) Miers v. Brown, 11 M. & W. 372. Purke, B., Allen v. Edmundson, 2 Exch. 719 ;
Furze i\ Sharwood, 2 Q. B. 388 ; King v. Bickley, id. 419 ; Chard v. Fox, 14 id. 200 ;
Vresswell, J., Cauni v. Thompson, 7 C B. 400 ; Hamilton v. Smith, Longf & T. 100.
In East V Smith, 4 Dow. & L. 744, Coleridge, J. made a distinction between the case

472 NOTES AND BILLS. [CH. XH.

The Supreme Court of the United States has distinctly de-
clared that a notice of dishonor addressed to a party to a note
" necessarily implies " that he is looked to for payment, because
" for what other purpose could it be sent ? "(/?) Such is certainly
the prevailing rule at this time.(^) "While, however, a demand
is implied by a statement of dishonor, it is quite clear that as yet
dishonor is not implied in a statement of demand ; and it is
therefore not enough to tell the party notified that he is looked
to for payment, unless he is also told that the paper is dishon-
ored. Such is the English rule, and we are not aware of any
authoritative American cases which hold otherwise ; although it
would be easy to ask on what other ground can payment be
required, and about as logical and rational to hold that dishonor
was implied hi demand, as that demand was implied in dishonor.

It is obvious, also, that the notice should describe the instru-
ment so that its identity is sufficiently certain, and so that there
can be no reasonable ground for mistaking it. The requirements
of the law on this point would seem to be satisfied with any de-
scription which, under all the circumstances of the case, so desig-
nates and distinguishes the note or bill as to leave no doubt in the
mind of the indorser, as a reasonable man, what note was intend-
ed. (/•) There is, however, much uncertainty in the adjudication
of our various courts, and it is not easy to say, either on reason
or authority, what the law actually requires. Thus it has been
held in England, that notice to the drawer that his draft on the
drawee, naming the latter, was dishonored, was prima facie suf-
ficient, although neither the date, amount, time of maturity, &c.
was specified. (s) It has been lield in America, that a notice to

of a notice coming directly from tlie holder and one not coininj^ imniediately fi-om Iiini,
intimating that in tiic former no statement that the party receiving the notice was looked
to for payment was necessary, and in the latter, that such statement should he made.

{j>) Bank of U. S. v. Carneal, 2 I'et. .543.

(f/) Cowles V. Harts, 3 Conn. 516 ; Warren v. Oilman, 17 Maine, 360 ; Townsend v.
Lorain Bank, 2 Ohio State, 345 ; Barstow v. Iliriart, 6 La. Ann. 98 ; Burgess v.
Vreeland, 4 N. J. 71 ; Shrieve v. Duckham, 1 Littell, 194. See Ransom v. Mack,
2 Hill, 587.

(r) Sec iShuw, C. J., Gilhert v. Deimis, 3 Met. 495, 498 ; Shelton v. Braiihwaitc, 7
M. & W. 436.

(s) Shelton v. Braithwaite, 7 M. & W. 436. In Stockman v. Parr, 11 id. 809. tho
only descrifition of the hill sued on, in an action against the drawer, was, " £ 53 1 Is. 6<i.
due on your dishonored note, dated 19th of Decemhcr last." The amount of tho bill
was £.53, the charges heing 6s. dd. This was held sufficient.

CH. XII.] THE FORM OF THE NOTICE. 473

an iiidorser of a note, simply stating the name of the maker, the
amonnt, and the fact that it was indorsed by the party to whom
the notice was sent, was a snfficient description. (^) But iu such
cases it is open to the defendant to prove any circumstances
tending to show that sucli a description was insufficient to ap-
prise him what note was intended. He may show, for instance,
such facts as that there were two or more notes or bills to which
the terms of the notice might equally apply, and then the notice
might be void for uncertainty as to the description. (w) It has been

(0 Housatonic Bank v. Laflin, 5 Cush. 546 ; Beals v. Beck, 12 Barb. 24.5 ; Youngs
V. Lee, 18 iil. 187, 2 Kern. 551 ; Kilgore v. Bulkley, 14 Conn 362. In Wheaton v.
Wihnarth, 13 Met. 422, the notice, in addition to these facts, stated the date when the
note was due, and was held sufficient. So Bank of Rochester v. Gould, 9 Wend. 279.
In Cook ;;. Litchfield, 5 Sekl. 279, 5 Sandf. 330, the notice stated the name of the
maker, the amount and date of the note, the indorsement, and also information that it
was protested on the same day it became due. This was held to describe the note suffi-
ciently. The notice need not state the name of the holder, Mills v. Bank of U. S., II
"Wheat. 431, Bradley v. Davis, 26 Maine, 45; nor at whose request the notice was
given, id., Shed v. Brett, 1 Pick 401 ; nor where the demand was made. Mills w. Bank
of U. S., II Wheat. 431 ; nor when a note was protested, Cook v. Litchfield, supra;
nor where the bill is lying, nor on whose behalf payment is demanded, Woodthorpe v,
Lawes, 2 M. & W. 109, Housego v. Cowne, id. 348, Harrison v. Ruscoc, 15 id. 231 ;
nor at what hour the note was presented at a bank, Fleming v. Fulton, 6 How. Miss.
473 ; nor that the party presenting had the paper with him at the time, nor the name
of the drawees, Mainer v. Spurlock, 9 Hob. La. 161 ; nor the fact of payment, nor the
absence of the maker when the note was presented, Sanger v. Stimpson, 8 Mass. 260 ;
nor at what time payment was due, Dcnegre v. Hiriait, 6 La. Ann. 100. In Wjnn
V. Alden, 4 Denio, 163, the notice, which had no date, stated that the note had been
" this day presented for payment." Held defective. Sedqwcre. In Cayuga Co. Bank
V. Warden, 1 Comst. 413, 2 Seld 19, the notice to each of two joint indorsers stated
that the note was indorsed " by you." It was objected, that this described the indorse-
ment as a several one, when it was joint, but the court overruled the objection.

(w) In the cases cited supra, note s, the reason given for the decision was, that it did
not ap])ear that there were any other bills to which the notice could apply, and there-
fore the indorser could not have been misled. In Cook v. Litchfield, 5 Seld. 279, there
were four notes of the same maker, indorser, date, and amount, but payable respec-
tively at nine, ten, eleven, and twelve months from the common date. The notices
were alike in all respects except their dates, and in two the amount of the interest due
was stated in the margin. It was held that the first notice was sufficient, no other
note to which the notice was applicable having, at that time, become due ; but that the
notice was insufficient as regarded the three other notes, because there were, at the time
each became due, two or more notes in existence to which the terms of the notice would
equally apply. It will be seen that each notice was dated the day when the note to
which it referred fell due, and the only reference to the time of maturity contained in
the body of the notice was the fact of protest " on the day when the same became due."
It is somewhat difficult, we think, to answer the objection to this case, that on the day
the see fid notice was received the indorser could not have considered it as referring to
the first note, because he had already received notice of the dishonor of that note a
40*

474 NOTES AND BILLS. [CH. XH

held tliat the notice should state the name of the maker of the
note,(y) and also the date of the presentment, (t^) but it may
be doubted whether the latter is essential. A verbal notice in
which the only words of description were " the note " has been
held sufficient, it appearing from the conversation that the in-
dorser understood what note was referred to. (a;) The authorities
are conflicting as to the point whether the question of sufficiency
of the description in the notice is one for the court or the jury
to decide. We should say, that on principle the court ought to
determine the point, which is not whether the party notified was
misled or deceived, but whether he might, under all the circum-
stances, as a reasonably prudent man, have been deceived. (^)
But there are authorities which hold that the matter depends on
whether the indorser has been actually misled or deceived, and
that this is a fact which the jury alone can decide. (^r)

The effect of a misdescription of the note in the notice has been
somewhat considered, and liere also the authorities are in an
unsatisfactory state. It is said that the law in England " now is,
that any misdescription which does not mislead is immaterial,
and does not vitiate the notice." (a) It would follow from this
view that a jury should determine the question, for it must be
a matter of fact in each case whether the indorser was misled or

month previous. The court held that it could not apply to the third or fourth note,
because these were not at this time due. The judgment of the Superior Court, 5
Sandf. 330, was overruled. Duer, J., in his opinion in the latter court, said: "Nor can
we doubt that, in each case, the note thus arrived at maturity was understood by the de-
fendant to be the note dislionored. That he was in fact misled is most improbable ;
that he ought not to iiave been misled is quite certain." The only answer to tlie above
objection, given by Rui/i/lcs, C. J., in the Court of Appeals, was, tluit " it is not strong
enough to sustain the phiintiff's demand, without violating a settled and salutary prin-
ciple of law. Tlie description of the note should be sufficiently certain to eiuiblc tlio

indorser to know to what one in particular the notice applies In the present case,

the defendant indorsed four notes which were ahkc in all respects, excepting in 7-cgard
to the time of payment; and yet the notices omitted to describe them with reference to
that important particular, by which only they could be distinguislied one from the otlier."

(v) Home Ins. Co. v. Green, 19 N. Y. 518.

(w) Wynn v. Alden, 4 Denio, 163, supra, p. 473, note t.

(x) Woodin v. Foster, 16 Barb. 146.

{;/) Crawford v. Branch Bank, 7 Ala. 205. Sec Mainer v. Sjiurlock, 9 Rob. La. 161,
and the cases cited infra, p. 475, note b, and p. 477, note r.

(2) Kilgore v. Buikley, 14 Conn. 362. See the cases cited infra, p. 475, note /).

(a) Chitty on Bills, lOtli Lond. cd., 299. The cases cited in support of this doctrine
are Bromngc v. Vaughan, 9 Q. B. 608; Mcllersh r. Rippen, 7 E.\ch. 578; and Smith
V. Whiting, 12 Mass. 6.

CH. XII.] THE FORM OF THE NOTICE. 475

not, and many authorities adopt this view. (if;) But our opinion,
independently of authorities, would be, that if it were intended
to describe the proper note, and the description of the note be
such that a reasonably prudent man, under the circumstances
of the case, ought to know what note was intended to be de-
scribed, the misdescription would not invalidate the notice, and
that it would be immaterial whether the indorser were misled in
fact or not. This must be dedueible mainly from the notice
itself, and by construction, although facts could come in to help
the construction, and therefore we should prefer to consider the
matter as a question of law for the court, and there arc authori-
ties to this eiFect.(f)

One of the circumstances which would have much effect here
would be the existence or absence of other notes by the same
parties, to which the terms of the notice would equally apply ;
and here, also, the burden of proving this would be upon the
party seeking to invalidate the notice. (c?) It has been held that
a notice addressed to an indorser, and describing him as drawer,
was insufficient, (e) But notices describing the drawer as the
acceptor,(/) a note as a bill,(g-) a bill as a note, (A) were suf-

(b) Stockman v. Parr, 11 M. & W. 809; Smith v. Whiting, 12 Mass. 6 ; Eeedy v.
Seixas, 2 Johns. Cas. 337 ; Bank of Rochester v. Gould, 9 Wend. 279 ; McKnight v.
Lewis, 3 Barb. 681 , Ross v. Planters' Bank, 5 Humph. 335 ; Moorman v. Bank of
Alabama, 3 Port. Ala. 353. See Carter v. Bradley, 19 Maine, 62.

(c) In Remer v. Downer, 23 Wend. 620, 25 id. 277, the Court of Appeals reversed
the decision of the Supreme Court, as reported in 21 id. 10, where it was left to the
jury to decide the matter; but tiie ground for the reversal does not appear clearly.
Branson, J., in Ransom v. Mack, 2 Hill, 587, thinks the decision proceeded upon the
ground that the court siiould have decided the question, and not the jury. In Mills
V. Bank of U. S., 11 Wheat. 431, the judge directed the jury to find the notice good, if

. no other note, of the same parties, and payable at the same place, had been proved to
their satisfaction to exist ; and this charge was held correct. This would seem to be
treating the question as a matter of law. It was so treated in Bank of Alexandria v
Swann, 9 Pet 33, and in Cayuga Co. Bank t. Warden, 1 Comst. 413, 2 Seld. 19.
See the cases cited supra, p. 474, notey.

(rf) Mills V. Bank of U. S., 11 Wheat. 431 ; Bank of Alexandria v. Swann, 9 Pet.
33 ; Reedy v. Seixas, 2 Johns. Cas. 337 ; Cayuga Co. Bank v. Warden, 1 Comst. 413,
2 Seld. 19. See supra, p. 473, note u.

{e) Beauchamp v. Cash, 1 Dow. & R., N. P. 3. See next note.

(/) Mellersh v. Rippen, 7 Exch. 578. The case of Beauchamp v. Cash, 1 Dow. &
R., N. P. 3, which held a notice to be bad because the indorser of a bill was described
as the drawer, must be considered as overruled.

(g) Mes,senger v Southey, 1 Man. & G. 76.

(h) Stockman v. Parr, 11 M. & W. 809, supra, p. 472, note s.

476 NOTES AND BILLS. [CH. XH.

ficient. Also, misdescription of the amoiint,(t) names of the
parties, (j) date of tlie note,(^') the place where the bill or note
was payable,(/) or where it was lying,(wi) or where it fell due,(w)
have been held immaterial. Whether a misstatement as to the
time when the note or bill was presented or protested is suf-
ficient to inv^alidate the notice is unsettled, the authorities behig
conflicting, (f;) But the reasons for holding the notice ineffectual,
because by this or any other inaccuracy the notice informs the
indorser in reality that he is discharged, seem to be quite strong.
There is also a conflict on this point with respect to whetlier this
is a question of law or fact.(jt7) Although a misstatement may
not be material as regards the invalidity of the notice, yet it may
have some eftect in other respects. Thus, if a notice misstated
the name of the person on whose behalf it was given, the effect
of this would probably be to place the party giving it in the same
situation as to the party to whom it was given as if the repre-
sentation had lieen true, and therefore the latter would have
every defence against the former that he would have if the notice
had been really given by the party named. ((?) Upon the whole,
we must content ourselves with saying that the notice should
contain all the facts which we have before enumerated, in order

(i) Reedy v Seixas, 2 Johns. Cas. 337 ; Bank of Alexandria v. Swann, 9 Pet. 33 ;
Cayuga Co. Bank v. Warden, 1 Coinst. 413, 2 Seld. 19 ; McKniglit v. Lewis, .5 Barb.
681 ; Bank of Rochester v. Gould, 9 Wend. 279 ; Rowan v. Odenheimer, 5 Smedes
& M. 44 ; Snow r. Perkins, 2 Mich. 238.

{j) Sniitii V Whiting, 12 Mass. 6, where the maker, wiiose name was Jotiiain Cush-
man, was called Jotham Gushing ; Moorman v. Bank of Alabama, 3 Port. Ala. 3.53,
where a subsequent indorser was described as Pyron, when his nam« was Byron ;
Dcnnistoun r. Steward, 17 How. 606; Carter )?. Bradley, 19 Maine, 62.

(k) Mills V. Bank of U. S., 11 Wheat. 431 ; Ross v. Planters' Bank, 5 Humph. 335 ;
Tobcy V. Lennig, 14 Penn. State, 483.

(/) Bromagc v. Vaughan, 9 Q. B. 609.

(m) Rowlands v. Springett, 14 M. & W. 7.

(n) Smith v. Whiting, 12 Mass. 6.

(o) That the notice was ineffectual was held, as a matter of law, in Ransom i\
Mack. 2 Hill, 587; Routh ». Robertson, 11 Smedes & M. 382 ; Etting r. Schuylkill
Bank, 2 Penn. State, 355 ; Townsend v. Lorain Bank, 2 Ohio State, 345. Contra, On-
tario Bank v. Petric, 3 Wend. 4.'56 ; Crocker v. Getchell, 23 Maine, 392. The reason
tjiven here was that the indorser could not have been misled. In the former case, tho
matter was left with the jury; in thclatter, tlie court seem to have decitled it. It nill
be seen, however, that in the latter case the mistake was apparent uj)on the face of tho
notice.

(/)) See the cases in note o, supra. %

(7) Harrison v. Ruscoc, 15 M. & W. 231.

CH. XII.] MANNER IN WHICH NOTICE SHOULD BE GIVEN. 477

that it may be sure to answer its purpose ; but there is much
uncertainty as to most of them, as we have already seen. Where
the facts are not in dispute, and are independent of the matter
of description, misdescription, or misinformation, our leading
authorities hold that the sufficiency of the notice, if in writing,
is to be determined by the court. (r)

SECTION II.

OF THE MANNER IN WHICH NOTICE SHOULD BE GIVEN.

The notice is usually in writing, but it seems to be sufficient
to satisfy the law if it be oral only ; (s) but it can be much more
easily and certainly proved if in writing, and in mercantile mat-
ters any departure from established customs is objectionable and
generally suspicious. Personal service is never necessary. It is
said to be sufficient to leave a written notice at the dwelling or
counting-room of the parties, or a verbal notice with any one
who may be found there. (^) This rule must, however, receive
a reasonable interpretation. It would not, for example, be suf-
ficient to leave the notice with one known to be casually there
for a temporary purpose ; nor with one who was obviously unable
to comprehend or deliver a message. Notice is usually sent by
mail in London, and in this country where the sender and the

(r) Dole I'. Gold, 5 Barb. 490; Wynn v. Alden, 4 Denio, 163; Townsend v.
Lorain Bank, 2 Ohio State, 345 ; Piatt v. Drake, 1 Doup;. Mich. 296 ; Brewster v.
Arnold, 1 Wise. 264. It seems to have been so treated in Gilbert v. Dennis, 3 Met. 495;
Pinkham v. Macy, 9 Met. 174. Contra, it would seem, Paul v. Joel, 3 H. & N. 455 ;
De Wolf V. Murray, 2 Sandf. 166. In McKnight v. Lewis, 5 Barb. 490, the distinc-
tion is taken between a notice defective on its face and one in which the note is mis^le-
scribed. The case of Cayuga Co. Bank v. Warden, 1 Comst. 413, 2 Seld. 19, is relied
upon ; but in that case the court decided the question themselves. It would seem that
an indorscr might equally be deceived, where the notice docs not convey sufficient in-
formation respecting the note or the circumstances attending its dishonor, as well as
where it contains some error or mistake.

(s) Cuyler v. Stevens, 4 Wend. 566; Woodin v Foster, 16 Barb. 146; Shaw,
C. J., Gilbert v. Dennis, 3 Met, 495 ; Glasgow v. Pratte, 8 Misso. 336 ; Metcalfe v.
Richardson, 11 C. B. 1011 ; Caunt v. Thompson, 7 id. 400; Housegb v. Cowne,
3 M. & W. 348 ; Phillips v. Gould, 8 Car. & P. 355 ; Smith v. Boulton, 1 Hurl. &
W. 3.

(t) See infra.

478 NOTES AXD BILLS. [CH. XD.

party addressed do not live in the same town.(?/) And if prop-
erly sent by mail, the law, which for certain purposes seems to
guarantee a discharge of their duties by persons employed by
the State, or to assume such due discharge as a fact, holds the
sender relieved from all consequences of a miscarriage, as has
been already intimated in respect to demand. In other words,
tlie sender is bound to use due diligence ; and on this point it is
sufficient diligence if the letter be put into a regular post-office ;
for it cannot be asked of any sender that he should have any
oversight of, or interference with, the public service of the post-
office. And therefore he is held to no liability for accident
there, however it may happen. (*')

The same rule would undoubtedly apply to an international
mail service by water. But if the sender prefer sending the no-
tice by his own messenger, or by any other means, he may do
so ; (lo) it is not, however, quite certain what his responsibility
now is. It may be that the due diligence required of him is sat-

(ii) Sec infra, pp. 481, 482.

(r) In the following cases it was held that putting a letter, properly directed, and at
a proper time, in the post-office was sufficient, without proof of its reception. Saun-
derson v. Judge, 2 H. Bl. 509 ; Parker v. Gordon, 7 East, 385 ; Bussard v. Levering,

6 Wheat. 102 ; Lindenberger v. Beall, id. 104 ; Munn v. Baldwin, 6 Mass. 316 ; Stan-
ton V. Blossom, 14 id. 116 ; Ogdcn v. Cowley, 2 Johns. 274 ; Ellis v. Commercial Bank,

7 How. Miss. 294; Commercial Bank v Strong, 28 Vt. 316. See Walters r. Brown,
15 Md. 28.5 ; Haly v. Brown, 5 Penn. State, 178; Smyth i-. Hawthorn, 3 Kawle, 355 ;
Hartford Bank v. Hart, 3 Day, 491. Sec Shepard v. Hall, 1 Conn. 329. In Miller
V. llackley, 5 Johns. 375, the notary testified that it was his usual practice to mail
notices to indorsers living at a distance the evening of the day of protest, and that he
had no doubt but that he had done so with the notice in the case in suit, though he
could not recollect positively. Held sufficient.. But in Dale v. Lubbock, 1 Barnard.
199, Raymond, C. J. "did not think the bare sending of a letter to the post-house would
be sufficient, without some further proofs of the acceptor's receiving it." In the follow-
ing cases there was evidence of a delay in the transmission by mail. Dickins v. Beal,
10 Pet. 572 ; Mount Vernon Bank v. Holdcn, 2 R. I. 467 ; Dobree v. Eastwood, 3 Car.
& P. 250; Stocken w. Collin, 7 M. & W. 515; Woodcock v. Houldsworth, 16 M. &
W. 124. In the following cases there was evidence that the notice was not received.
Shed V. Brett, 1 Pick. 401 ; Rcnshaw v. Triplett, 23 Misso. 213; Chapman v. Lips-
combe, 1 Johns. 294, where, from the circumstances of the case, the notice could not
have come to thc-hands of the party to whom it was sent. In Jones v. Wardcll, 6
Watts & S. 399, there was a delay owing to the fact that the wrong person, of the
same name with the indorser, took the notice out of the post-office. The indorscr was
held.

, (w) Jarvis v. St. Croix Manuf Co., 23 Maine, 287 ; Bancroft v. Hall, Holt, N. P.
476 ; Pearson v. Crallan, 2 J. P. Smith, 404; Whitehead, J., Hazelton Co. v. Ilycrson,
Spencer, 129.

CH. XII.] MANNER IN WHICH NOTICE SHOULD BE GIVEN. 479

isfied with reasonable care in selecting his messenger or servant ;
but perhaps it should be held that he may select either to employ
a public servant, and then the responsibility is off his hands as
soon as the notice is delivered to the mail ; or he may elect to
send it by his own private conveyance, and then his responsibility
continues until due delivery to the person to be notified. (.r) We
think this latter view is more consonant with the true principles
of the case, and should be unwilling to admit an exception to it,
unless, perhaps, where the sender could not be said to elect, be-
cause there was no public conveyance between him and the person
to be notified. (v/) Then it becomes his duty to send the notice
in the best and safest way he can ; and if he exercises a sound
discretion in selecting and in using that way, he miglit be safe
from the consequences of a miscarriage which could not be at-
tributed to him as a fault. Where it sliould be sent by mail, but
is sent by a private messenger, it seems that if it arrives on the
same day on which the mail would bring it, and later in the day,
it is still sufficient if it comes within business hours ; (z) but if it
does not come until the day after, this delay vitiates the notice. (a)

(x) In Van Vechten v. Pruyn, 3 Kern. 549, 555, Johnson, J. said : " Where the ser-
vice is by mail, the duty of the holder is discharged by depositing the notice in the
post-office, properly directed. Whether it ever reaches the indorscr or not, his liability
is fixed. On the other hand, where personal notice is to be given, the obligation is
upon the holder to leave the notice, either with the party to be charged, or at his resi-
dence or place of business. In these cases, there is no risk in transmission to be borne
by the indorscr."

{y) In Bank of Columbia v. Lawrence, 1 Pet. 578, 584, Thompson, J. said : " In cases
where the party entitled to notice resides in the country, unless notice sent by mail is
sufficient, a special messenger must be employed for the purpose of serving it. And
we think that the present case is clearly one which docs not impose upon the plaintiffs
such duty. We do not mean to say no such cases can arise, but they will seldom if
ever occur, and at all events such a course ought not to be required of a holder, except
under very special circumstances. Some countenance has lately been given to this
practice in England in extraordinary cases, by allowing the holder to recover of the
indorscr the expenses of serving notice by a special messenger. The case of Pearson
V. Crallan, 2 J. P. Smith, 404, is one of this description. But in that case the court did
not say that it was necessary to send a special messenger, and it was left to the jury to
decide whether it was done wantonly or not. The holder is not bound to use the mail
for the purpose of sending notice. He may employ a special messenger if he pleases,
but no case has been found where the English courts have directly decided that he
must. To compel the holder to incur such expense would be unreasonable, and the
policy of adopting a rule that will throw such an increased charge upon commercial
paper on the party bound to pay, is at least very questionable."

(z) Bancroft v. Hall, Holt, 476.

(a) See Bceching v. Gower, Holt, 315, note ; Darbishire v. Parker, 6 East, 3. In Jarvis

480 NOTES AND BILLS. [CH. XIL

If the want of an early post would ca\ise a considerable delay,
and the parties were near, so that notice could easily and clieaply
oe sent by private hand, we should say, however, that it ought to
be sent so; and a long delay could not be justified. (6) It has
been held, tliat, where a private messenger was employed, a holder
might in such a case charge the person addressed a reasonable
sum for the expense of doing so.(c) It has been held, that a bank
which liolds a note for collection, and exercises due care iu
selecting a notary to whom it is sent for demand, protest, and no-
tice, is not answerable for the default of the notary. The notary
public stands in some degree on the footing of the mail service,
as an agent or instrument provided by law, and therefore to a
certain extent guaranteed by law. The authorities are not uni-
form on this question ; some hold the bank liable for the proper
conduct of the notary employed ; and those which hold the bank
discharged by due care in selection seem to apply the same rule
to any person selected with due care as a competent agent, (rf)

V. St. Croix Manuf. Co., 23 Maine, 287, a notice had been forwarded part of the way by
a private messenger. By the reguhxr course of the mail the notice might liave been
received some days before its actual reception. Held, that it was incumbent upon the
plaintiff to have explained this delay, and not having done so, he was nonsuited.

{h) In some cases it has been held that it was necessary to make use of a special mes-
senger, as wlicn the indorser lived at a considerable distance from a post-office. Fish
V. Jackman, 19 Maine, 467 ; Farmers'. &c. Bank v. Butler, 3 Littell, 498 ; Barker v. Hall,
Mart. & Y. 183 ; Bedford v. Hickman, 1 Yerg. 166. See Farmers', &c. Bank v. Battle,
4 Humpli 86. But ihese may be doubted, as it will be seen hereafter that many author-
ities hold that, in such cases, it will be sufficient to send the notices to the nearest post-
office. In State Bank v. Ayers, 2 Halst. 130, Ford, J. said : " If persons residing far
from a post-town, aside from the common walks of gregarious commerce, will give
their names in guaranty of commercial paper, it is better that they should be held to
inquire for letters at the nearest post-office, about the time such paper conies to ma-
turity, than that the holder should be compelled to send a special messenger fifty or
one hundred and fifty miles to serve personal notice, or that an establislied system
of notices, sufficiently complex already, siiould be forced to give way to the introduc-
tion of novel exce[)tions, imposing burdensome, expensive, and hazardous duties on
all men of business, merely out of favor to eccentric residences."

(c) Pearson v. Crallan, 2 J. P. Smith, 404, where it was left to the jury to decide
wliethcr the s[)e(ial messenger was necessary, and whether the charge was reasonable.

(d) Builcmire v. Bank of United States, 4 Whart. 10."); Jackson v. Union Bank of
Maryland, 6 Harris & J. 146 ; East Haddam Bank v. Scovil, 12 Conn. 303 ; Wingato
V. Mechanics' Hank, 10 Barr, 104 ; Fabcns v. Mercantile Bank, 23 Pick. 330; Dor-
Chester & Milton Bank v. New England Bank, 1 Cash. 177; Warren Hank v. Suffolk
Bank, 10 Cush. 582. It was so held by the Supreme Court of New York in Allen v.
Merchants' Bank, 15 Wend. 482. The decision in this case was, however, reversed by
the Court of Errors by a vote of 14 to 10, Chancellor Walworth delivering an opinion

CH. XII.] MANNKR IN WHICH NOTICE SHOULD BE GIVEN. 481

III London, it is onou^li if the notice is put into any autliorized
receiving-house ; but it has been said not to be enough to deliver
it to a "bellman" in the streets. (/') Subsequently, this, how-
ever, seems to be doubted, (^) and Lord Denman calls a bellman
" an ambulatory ])ost-offiee."(A) The true question mu^t be
this, — Is a bellman an officer of the state, and in substance an
authorized receiver for the post-office ? If not, he should stand
upon the same footing as any other carrier. Probably usage
would have some effect on a question of this kind.

Proof that a letter was put on a table with others, and that it
was the regular course of business of the porter of the place to
take all letters so deposited to the post-office, was held to be in-
sufficieut ; but it was intimated that the evidence of tiie porter,
that he always carried the letters, without any distinct recollec-
tion of this one, might have made the proof sufficient.({) If the

in favor of aflSrming the judgment of the Supreme Court. 22 Wend. 21.5. This decis-
ion of the Court of Errors is regarded as having settled the law in New York. See
Hoard v. Garner, 3 Sandf. 179 ; Montgomery Co. Bank v. Albany City Bank, 8 Barb.
396, 3 Seld. 459.

(/) In Hawkins v. Rutt, Peake, Cas. 186, Lord Kenyan held, that evidence that a
letter containing bills of exchange was delivered to the bellman was no proof that the
letters arrived at the post-office.

(g) In Pack i'. Alexander, 3 Moore & S. 789, a letter containing bank-notes was
given to the bellman, who put it into his mail-bag. The bellman testified that the
bags arc delivered locked at the post-office, and that a letter once put in could not be
abstracted without the aid of the key. The jury found for the plaintilf, on the ground
that there was no evidence that the letter ever reached the post-office. The court set
aside the verdict as against evidence. The cases of Hawkins v. Kutt, and Pack v.
Alexander, were not, it will be seen, cases involving the delivery of a nolice to a
postman, but letters containing money ; and it may well be doubted whether suet
strictness would be required in the former case as in the latter. In Scott v. Lifford,
9 East, 347, 1 Camp. 246, the plaintiff, living in London, sent the notice to the defend-
ant, wiio resided in Shadwell, by the twopenny-post. Held sufficient. Le Blanc, J.
said, 9 East, 348 : '' I cannot rule that the holder of a bill may not avail himself
of the conveyance by the twopenny-post." So the court said, 1 Camp. 249, that
" they did not see why, when the parties reside in London, or the near neighborhood, the
party sending the notice should not be allowed to avail himself of the convenience of
the twopenny-post, but should be obliged to despatch a special messenger." In Smith
v. MuUctt, 2 Camp. 208, the notice was sent by the twopenny-post, and no objection
was taken to this ; but the case turned on another point. In Kilton v. Fairclough, 2
Camp. 633, it was held that a notice might be sent by the twopenny-post to any place
within its limits, and that distance was immaterial. In Dobree v. Eastwood, 3 Car. &
P. 250, the notice was sent by the same conveyance, the parties all residing in the same
place. It was proved that there was an actual delay, but the notice was held sufficient.

(A) Skilbeck v. Garbett, 7 Q. B. 846, 849.

(i) Hetherington r. Kemp, 4 Camp. 193. In Skilbeck v. Garbett, 7 Q. B. 846, a

Vol. I.— 2 F

482 NOTES AND BILLS. [CH. KFL

parties live in the same town, the American cases hold, very gen.
erally, that the mail is not the proper instrument, or rather that it
has no advantage in law over any other means. (j) So, according

clerk of the plaintiff testified that, in the general course of business at the plaintiflTs
office, letters were made up by him, and the public postman called every day for the
letters, which were placed in a box in the room where the witness sat, and were taken
from the box by the postman. The witness testified that the letter in question was made
up in the usual course, but no further evidence was given as to the sending. Held
sufiScient. See also Brailsford v. Williams, 15 Md. 150; Bell v. Hagerstown Bank,
7 Gill, 216 ; Flack v. Green, 3 Gill & J. 474 ; Miller v. Hackley, 5 Johns. 375, supra,
p. 478, note v. In Commercial Bank v. Strong, 28 Vt. 316, it was proved to be the
duty of one clerk of a bank to fill out and direct notices, and to place them on his desk.
It was also proved to be the duty of another clerk to take the notices, so left daily, to
tlie post-office. The notice was proved to have been left in the usual place on a cer-
tain day, and afterwards on the same day had been removed. The clerk whose duty
it was to carry letters to the post-office testified that his usual practice was to carry them
promptly, but he could not swear that he had carried the notice in the case in suit.
Held sufficient proof of notice. Redjield, C. J. criticises the propositions laid down
in Chitty on Bills, — that it is incumbent upon the holder "to prove distinctly and
by positive evidence that due notice was given, and that it cannot be left to inference or
presumption"; and that "the party who puts a letter giving notice of the dishonor
of a bill into the post-office must be able to swear to a certainty, and not doubtfully,
that he put the letter in himself, and not that he was doubtful whether he did not de-
liver it to another clerk to put it in," — declaring them unsupported by the authorities
referred to. In Mount Vernon Bank v. Holden, 2 R. I. 467, the notice was delivered
to an assistant of the postmaster, in a room adjoining the office, such being the usage
in that place. Held sufficient, although there was a delay in the transmission there.
In Hawkes v. Salter, 4 Bing. 715, 1 Moore & P. 750, the holder's clerk, who copied the
notice, said that it was put into the post-office, but could not recollect whether by him-
self or by another clerk. Held not sufficient evidence of its being deposited in the
post-office.

(j) Peirce i;. Pendar, 5 Met. 352 ; Ireland v. Kip, 10 Johns. 490, 11 id. 231. See
Smedes v. Utica Bank, 20 id. 372 ; Cayuga Co. Bank v. Pennett, 5 Hill, 236; Ilyslop
V. Jones, 3 McLean, 96 ; Shepard r. Haley, 1 Conn. 367 ; Manchester Bank v. Fel-
lows, 8 Foster, 302; Green r Darling, 15 Maine, 141 ; Davis v. Gowen, 19 id. 447;
Kramer v. M'Dowell, 8 Watts & S. 138; Haly v. Brown, 5 Penn. State, 178 ; Bell
v. Hagerstown Bank, 7 Gill, 216; Walters v. Brown, 15 Md. 285; Farmers', &c.
Bank v. Butler, 3 Littell, 498; Clay v. Oakley, 17 Mart. La. 137; Miranda ;•. City
Bank, 6 La. 740; Porter v. Boyle, 8 id. 170; Manadue v. Kitchen, 3 Rob. La. 261 ;
Saul T. Brand, 1 La. Ann. 95 ; Curtis v. State Bank, 6 Blackf. 312 ; Costin v. Ran-
kin, 3 Jones, N. Car. 387; Stephenson r. Primrose, 8 Port. Ala. 155; Foster v.
McDonald, 3 Ala 34; Brindley v. Barr, 3 Harring. Del. 419; Remington v. Har-
rington, 8 Ohio, 507. But where there arc two post-offices in the same town, and the
notice would be transmitted from the one to the other, in the ordinary cour.ie, in order
to reach the indorser, such a method of transmission is proper. Ransom v. Mack, 2
Hill, 587. Sec Seneca Co. Bank r. Neass, 5 Denio, 329, 3 Comst. 442. Shnw, C. J.,
Peirce v. Pendar, 5 Met. 352 : The penny-post might be u.sed in such case. Sec the
cases of Bank of Columbia v. Lawrence, 1 Pet. 578; Brindley v. Barr, 3 Harring. Del.
419 i Curtis ». State Bank, 6 Blackf. 312 ; Farmers', &c. Bank '. Butler, 3 Littell, 498 ;

CII. XII.] MANNER IN WHICH NOTICE SHOULD BE GIVEN. 483

to one authority, if the party addressed duly receive the notice,
or if the jury can properly presume from the facts of the case that
it was received, the mere manner in which it was sent is wholly

Gist V. Lybrand, 3 Ohio, 307 ; Louisiana State Bank v. Rowel, 18 Mart. La. 506 ; Bell
V. Hagerstown Bank, 7 Gill, 216. In Walters v. Brown, 15 Md. 285, it was held, that
where there was a penny-post, the mail might he used as a method of transmission, and
that the same rule applied as to the risk in such cases as where the parties resided in
different towns. Where the indorser and holder live in different towns, the notice may
be deposited in the post-office of the town where the indorser lives. Stamps v. Brown,
Walker, 526 ; Gindrat v. Mechanics' Bank, 7 Ala. 324 ; Foster v. McDonald, 8 id. 376,
Timms v. Delisle, 5 Blackf. 447. Contra, Patrick v. Beazley, 6 How. Miss. 609 ; Hogatt
V. Bingamun, 7 id. 565 ; M'Crummen v. M'Crummen, 17 Mart. La. 158. In Greene v.
Farley, 20 Ala. 322, it was held, that if the indorser and owner live in the same place,
but the note is protested in another by a notary, the latter may still transmit notice to
the indorser by mail. Where the parties live in different towns, but use the post-office in
the same town, the mail may be used as a place of deposit for the notice. Carson v.
Bank of Alabama, 4 Ala. 148; Bank of Columbia v. Lawrence, 1 Pet. 578; Jones v.
Lewis, 8 Watts & S. 14; Timms v. Delisle, 5 Blackf. 447 ; Bell v. State Bank, 7 Blackf.
456; Fisher v. State Bank, id. 610 ; Barret v. Evans, 28 Misso. 331 ; Foster v. Sineath, 2
Rich. 338. Contra, Laporte v. Landry, 17 Mart. La. 359 ; Louisiana State Bank v. Rowel,
18 id. 506; Pritchard v. Scott, 19 id. 491 ; Glenn v. Thistle, 1 Rob. La. 572 ; Harris v.
Alexander, 9 id. 151 ; Farmers', &c. Bank v. Butler, 3 Littcll, 498. But these cases are
now overruled. New Orleans Canal, &c. Co. v. Barrow, 2 La. Ann. 326 ; Hepburn v.
Ratliff, id. 331 ; Bird v. McCalop, id. 351 ; New Orleans, &c. R. Co. v. Patton, id. 352 ;
Lathrop v. Delee, 8 id. 170; Bank of Louisiana v. Tournillon, 9 id. 132; Bondurant v,
Everett, 1 Met. Ky. 658. In Hartford Bank v. Stedman, 3 Conn. 489, a note was dis-
counted at the Hartford Bank, and protested at Middletown, at a bank in which place it
was payable. The notary in Middletown directed the notice to the indorser, leaving the
place blank, and enclosed it to the Hartford Bank. The cashier of the latter bank inserted
the word " Hartford," the indorser living there, and deposited the notice in the post-office.
Held sufficient. So Manchester Bank v. Fellows, 8 Foster, 302 ; Warren v. Oilman,
17 Maine, 360; Eagle Bank v. Hathaway, 5 Met. 212. But in Sheldon v. Benham, 4
Hill, 129, the notary protested a note in the place where it was payable, and forwarded
notices for all the indorsers residing at a different place to the fourth indorser. He
deposited them in the post-office in the place where the indorsers lived. Held insuffi-
cient. If a note is payable at a bank in the same place where the indorser lives, notice
to hira cannot be deposited in the post-office. Bowling v. Harrison, 6 How. 248; State
Bank v. Slaughter, 7 Blackf 133. But in such case, a usage to deposit notices in the
post-office will bind the parties to the note. Chicopee Bank v. Eager, 9 Met. 583 ; Gin-
drat V. Mechanics' Bank, 7 Ala. 324. See Bank of U. S. v. Norwood, 1 Harris «Sb J.
423; Bell v. Hagerstown Bank, 7 Gill, 216. The usage should be clearly proved.
Thus, in Bowling v. Harrison, 6 How. 248, there was a memorandum attached to the
note, that " the third indorser, J. P. H., lives at Vicksburg." A usage of the banks
in Vicksburg was proved, to the effect that personal notice was served on the indorsers
living in that place, unless there was a memorandum on the note or bill designating
the place to which the notice was to be sent. It was contended that the jury might be
allowed to infer, from the facts of the case, that there was a usage in such cases as the
one in suit to deposit notices in the post-office ; but it was held that there was no evi-
dence from which a jury would be justified in drawing such inference. But in Wilcox

484 NOTES AND BILLS. [CH. XE.

immaterial. (^') But if sent bj mail where both parties live in
the same town, it would seem that the sender remains responsi-
ble for the due delivery of the notice. Although, however, the
general rule may be considered as well settled, yet the decisions
of our courts are by no means unanimous with regard to its ap-
plication. One class of authorities, which adheres with much
strictness to the rule, declares that the true principle by which
each case is to be decided is this, — that the post-office is to be
used as a means of transmission only, and not a place of de-
posit. (/) Other authorities, regretting that the rule was origi-
nally adopted, declare that it is too well settled to be overturned,
but decide that its operation is not to be extended. The true
test would, then, seem to be only the fact whether the holder and
the party to whom the notice is to be sent reside in the same
town or not.(m) Originally, perhaps, notice could never be sent
through the post-office, and the first relaxation was to allow this
method of communication where the parties resided in different
towns. (w) We are aware of no good reason for any difference
between our law and that of England, except that the English
law is in that respect very much London law, and in that vast
city the public arrangements for speedy delivery to everybody give
peculiar weight to all the reasons which would induce a resort
to the post-office anywhere. In this country, generally at least,
a use of the post-office in the same town would imply a delay of
a day, which may be avoided by employing a clerk or messenger.
It seems to be held in England, and for reasons which would
probably be deemed sufficient in this country wherever they were
applicable, that if there was a communication across the ocean
by regular lines of packets, under steam or canvas, the vessels
composing that line might be used, and a holder might delay a

V. M'Nutt, 2 How. Miss. 776, it was held that a custom among the notaries of a par-
ticular city to deposit notice in the post-office for an indorser could not make the prac-
tice lawful. Changed in New York by statute in 1857. The usage should be certain
and clear. Thorn v. Rice, If) Maine, 2f)3.

(k) Ilyslop V. Jones, 3 McLean, 96. See Hill v. Crnry, id. 582; Foster r. McDon-
ald, 5 Ala. 376 ; Bradley v. Davis, 26 Maine, 45 ; Bank of U. S. v. Corcoran, 2 Pet.
121 ; Manchester Bank r. Fellows, 8 Foster, 302; Whiteford u. Burckmyer, 1 Gill, 127.

(/) IJronson, J., Kansom v. Mack, 2 Hill, 587 ; Farmers', &c. Bank v. Battle, 4
Humph. 86.

(m) Shaw, C. J., Eagle Bank v. Hathaway, 5 Met. 212.

(n) Bronson, J., Ransom v. Mack, 2 Hill, 587.

CH. XII.J MANNER IN WHICH NOTICE SHOULD BE GIVEN. 485

reasonable time for the next regular ship ; and the fact tliat a
casual ship which might have taken the notice sailed sooner and
arrived sooner would not vitiate the notice. (o) If the delay
caused in this way were very great, and the probability of tliis
should have been anticipated, as if the holder delayed a fortnight
for a regular sailing packet, and a casual but safe steamer de-
parted in a day or two, such delay would no doubt be considered
unreasonable, and therefore inexcusable.

The postmark on a letter is prima facie evidence that the
letter was deposited in the office on that day, but is open to
rebutter. (;>)

Curious questions have arisen as to the address. If, for in-
stance, the sender has no better means of knowing liow to
address a drawer than by his name as written by himself on
the bill, and through an error caused by the indistinctness of
the writing the notice does not reach the drawer in season, the
drawer is not discharged. (</) Nor should we say, although on

(o) Mailman v. D'Eguino, 2 H. Bl. 565. The head note in Fleming v. M'Chire,
1 Brev. 428, is, that "where a bill drawn in this country on Europe has been dishon-
ored, notice must be sent by tlie first ship bound to any port of the United States ; and
it is not sufficient to send it by tlie first ship for the port where the drawer and indorser
resides." This is neither law nor the decision of the court. All that was decided was
this : A bill was drawn in Charleston on London. The notice was not received until
four months after the dishonor of the note. The judge left it to the jury to say, from
the circumstances of the case, whether the notice might not have been sent earlier, and
said that '• it would be doing violence to presumption " to suppose that it might not
have been sent before. His charge was held correct. All that the case really decides
is, that a party in London cannot wait three months in order to send a notice by ship
direct to Charleston, when he may be supposed to have had chances to forward it by
vessel to some other port. If the head note correctly states the law, then the holder
might be obliged to forward a notice to Portland, by a vessel for New Orleans, although
it might be sent to Portland direct by a vessel which sails for the latter place a day or
two subsequently to the former vessel.

(p) Crawford v. Branch Bank, 7 Ala. 205, where it was also held that the postmark
was not evidence of itself, but might be proved by the person who stamped it, or by
any one in the habit of receiving letters from that office. Se.d quare. See Abbey v.
Liil, 5 Bing. 299. But see Woodcock v. Houldsworth, 16 M. & W. 124. In Stocken
V. Collins, 9 Car. & P. 653, the postmark of a letter denoted that it was put in on April
29, at 10 A. M. A witness stated that it was put in on April 28, before 1 P. M. The
judge charged the jury to find for the plaintiff, if they should find the letter to have been
Jeposited at the time the witness stated ; and to find for the defendant, if it was depos-
•'ted at the time the postmark denoted. The jury found for the plaintiff, and a motion
for leave to enter a nonsuit was overruled.

{q) Hewitt v. Thompson, 1 Moody & R. 543. It will be seen hereafter, that if
ft person use due diligence to discover the address of a drawer or indorser, and
41 *

4H(5 NOTES AND BILLS. [CH. XH.

this point we have no authority, that the indorsers would be
discharged, for the case seems to come under the rule of im-
possibility, as the holder has done all that he could do.

Where a notice to an indorser was mailed in London, addressed
10 " Mr. Haynes, Bristol," Abbott, 0. J. ruled that it did not
raise the presumption of delivery, and required some proof of the
reception of the notice by the defendant, on the ground that, as
the place was very populous, there might be many persons there
of the same name.(r) If, however, all the information which the
drawer has is given by the signature, and all this information is
made use of by tke holder, it is certainly evidence from which
a jury may infer due notice to him, (5) or at least that the holder
has done all that he could. In this country, a letter in which a
notice is sent should be directed to the proper town and State,
and an omission as to the latter has been held to invalidate the
notice. (^)

It may be expected that questions will arise on this subject
before long, by reason of the recently invented and already gen-
erally used magnetic telegraph. We have, however, no knowl-
edge of its being used for purposes of this kind, or of any suppo-
sition by merchants or lawyers that it is the necessary or proper
instrument for giving such notice. We shall not attempt to
anticipate either these questions or the answers to them, further
than to remark, that if a message were duly sent by telegraph,

still misdirect the letter, the notice will be good. See Siggers v. Brown, 1 Moody
& I{. 520.

()■) Walter v. Haynes, Ryan & M. 149. In Jones v. Waidcll, 6 Watts & S. 399, a
notice in a letter was directed to " Wm. 1). Jones, Philadelphia, Pa." The letter was
taken out of the post-office by another person of the same name with the indoi^ser.
The indorser received it after a few days' delay. Held, that tills delay did not dis-
charge him. Sec Lawrence v. Miller, 16 N. Y. 23-5; True v. Collins, 3 Allen, 438.

(s) In Mann v. Moors, Ryan & M. 249, the drawer dated the bill " Manchester."
The fact that a notice was sent, addressed to " Mr. Moors, Manchester," was held evi-
dence hy wliich a jury miglit find that he had received due notice. The jury found for
the plaintiff. The same has been held, where the drawer dated the bill at London.
Clarke v. Sharpe, 3 M. & W. 166; Burmcster v. Barron, 17 Q. B. 828. In this last
case there was evidence that the drawer never received the notice. The jury found for
tiie plaintiff, and a rule to enter a nonsuit, on a verdict for the defendant, was refused.
It was also held here, that the fact that the residence of the acceptor was stated in the
acceptance, and that inquiries might have been made of him by which the residence of
the drawer might have \)cv.u ascertained, did not render the notice insufficient.

(<) Beckwith i;. Smith, 22 Maine, 125, where the letter was directed to Calais It
was proved that there was a Calais, Me. and a Calais, Vt.

CII. XII.J TO WHAT PLACE THE NOTICE SHOULD BE SENT. 487

and duly delivered, it would no doubt be deemed sufficient; and
if the importance of giving early information of the dishonor of
negotiable paper should induce our merchants to apj)ly the tele-
graph to this purpose, a usage may grow up which would gradu-
ally acquire the force of law. At present, no such usage is
known to exist. A question may arise in other cases of notice
as well as in that now under consideration, in which a party who
is entitled to the earliest information of an important fact, from
a delay in giving this information suffers actual damage ; and this
may cause an inquiry whether the informing party discharged
the whole of his duty. And if he made use of the mail, which
required a delay of many days, when a means of telegraphic com-
munication was open to him for which as many minutes sufficed,
and one which is found to be reasonably safe and trustworthy,
and which does not at all interfere with a resort to the mail also,
the question may arise whether it was not his duty to make use
of this more rapid means, or, on the other hand, whether it would
not be competent for him to say, that he had no confidence in
new things, but preferred " ire per antiquas vias."^ But this
question must depend for its answer in each case upon its pecu-
liar circumstances and merits, as well as upon the usages which
may grow up.

SECTION III.

TO WHAT PLACE THE NOTICE SHOULD BE SENT.

The place of business, if the notice is sent by a clerk or mes-
senger, is the proper place as well as the usual one ; (u) and it has

(u) There seems to be some uncertainty as to the proper statement of the rule.
Thus, in the following cases it is laid down that, where the parties live in the same
place, notice must be served personally, or at the indorser's residence, or at his place
of business. Bank of Columbia v. Lawrence, 1 Pet. 578, 583 ; Williams v. Bank of
U. S., 2 id. 96, 101 ; Hyslop v. Jones, 3 McLean, 96 ; Ea^jle Bank r. Hathaway, 5
Met. 212; Peirce v. Pendar, id. 352; Ireland v. Kip, II Johns. 231 ; Green v Dar-
ling, 15 Maine, 139; Kramer v. M'Dowell, 8 Watts & S. 138; Haly c. Brown, 5
Penn. State, 178; Brindley v. Barr, 3 Ilarring. Del. 419; Curtis v. State Bank, 6
Blackf. 312 ; Stephenson v. Primrose, 8 Port. Ala. 155 ; Phillips v. Alderson, 5 Humph.
403; Wilcox v M'Xutt, 2 How. Miss. 776 ; Manadue ;;. Kitchen, 3 Rob. La. 261 ;
Saul V. Brand, 1 La. Ann. 95. In the following cases it is said that the notice should be
\erred personally, or at the indorser's residence. U. S. v. Barker, 4 Wash. C. C 464,

488 NOTES AND BILLS. [ CH. Xn.

even been said, that it is the duty of the person notified to have
some one to attend to such matters at his place of business ; (v)
and therefore, if notice is sent in tliat way, and no person is
found at the place of business, it is a sufficient notice. (i(;) But
this may be doubted ; and we should not think it always safe
to rely upon such notice. Even demand may be made, as we

470 ; Ireland c. Kip, 10 Johns. 490 ; Smedes v. Utica Bank, 20 id. 372, 392. So m
Commercial Bank v. Strong, 28 Vt. 316, Redjield, C. J. said: "The general course
of decision is, certainly, that notice to the indorser must be sent to the jilace of liis resi-
dence, unless he is shown to have his place of business elsewhere." In Shepard v. Hall,
1 Conn. 329, Swift, C. J. said : " Where the parties live in the same town, personal
notice of the non-payment of bills and notes must be given." A personal notice is
good wherever it may be served. Hyslop v. Jones, 3 McLean, 96. In Van Vechten v.
Pruyn, 3 Kern. .549, 552, ComstocJc, J. said that the true rule was, that " when the ser-
vice is not by mail, notice may be left indifferently at the indorser's dwelling or place
of business." In this case the indorser and holder lived in the same town. The in-
dorser spent three days in the week there, and the remaining four in the city of New
York, where he transacted his business and usually received his pa])ers and letters.
Held, that a notice sent by mail to the latter place was insufficient, without proof that
the notice was received. Sed qwere.

((•) Lord Ellenborouffh, Crosse v. Smith, 1 Maule & S. 545; Lord Eidon, in Gold-
smith V. Bland, cited id. 554, left it with the jury to say whether the indorser sliould
have a per^^on there In Granite Bank v Ayers, 16 Pick. 392, Shaw, C. J. said : " Now
t'hough a man is out of town, yet if he has a domicil or place of business, it is to be pre-
sumed that he will leave some person charged with the care of his business, or at least
some o)ie between whom and himself there is a privity or confidence. It is ujion this
principle that all notices at one's domicil, and all notices respectint^ transactions of a
commercial nature at one's known place of business, are deemed, in law, to be good
constructive notice, and to have the legal effect of actual notice." So in Jones v.
Manskcr, 15 La. 51, 54, Morphy, J. said : If the indorser has left no one there to at-
tend to Ills affairs, it is his loss, and the holder of the note or bill has done his duty,
and all that the law demands of him Notice left with a clerk at the indor.ser's office,
in the absence of the latter, is sufficient. Edson v. Jacobs, 14 La. 494; Jones v.
Manskcr. 15 id. 51 ; Commercial Bank ». Gove, id. 113.

(w) Crosse v. Smith, 1 Maule & S. 545 ; Goldsmith v. Bland, id. 554 ; Bancroft c. Hall,
Holt, N. P. 476 ; State Bank v. Henncn, 16 Mart. La. 226 ; Miller r. Ilennen. 15 id.
587. See Granite Bank v. Ayers, 16 Pick. 392. See Allen v. Edmundson, 2 Exch. 719,
where it was held that the fact that the counting-room of the indonscr was closed should
have been pleaded as a dispensation of notice, and that it did not support an allegation
of due notice. Notice left with a clerk at the indorser's place of business, in the ab-
sence of the latter, is sufficient. Edson v. Jacobs, 14 La. 494 ; Jones v. Manskcr, 15 id.
51 ; Commercial Bank v. Gove, id. 113. So notice left at the indorser's store, there
being no proof as to the person with whom it was left, is sufficient. Bank of Louisiami
r. Manskcr, id. 115. Notice left with a l)lack man at the indorser's office is sufficient.
Bank of U. S. r. Merle, 2 IJob. La. 117. Notice left at the indorser's counting-room,
with a person who declared himself to be the indorser's agent, is sufficient, ami proof
that the. person with whom it was left was not an agent of the indorser is irrelevant,
the notice having been left at the right place. Jacobs r. Town, 2 La. Ann. 964. A

CH. XII.] TO WHAT PLACE THE NOTICE SHOULD BE SENT. 489

have seen, (a;) at the residence of a payor, altliough it can-
not be supposed to be usual, in the course of business, for
a maker or acceptor to keep his funds or his books at his
house. No such objection, nor any other, lies against giving
notice of dishonor at one's residence ; and this we think should
be done, if no one is found at the place of business. (y/) Bu.1

notary's certificate of notice to an indorser I)y " a letter delivered to his bar-keeper, he
not being in. is in.suflicient, i)ecau.sc it does not mention the place of delivery; but the
defect may be cured by evidence. Saul v. Brand, I La. Ann. 9.5. Notice left, with a
mate on board a I)ritr commanded by an indorser is enough. Austin v. Latham, 19 La.
88. In Ogden v Cowley, 2 Johns. 274, the notary called at the house of an indorser,
and finding it shut, on inquiry learned that he had gone out of town. The yellow
fever was prevailing there to some extent. The notary deposited the notice in the post-
office. Held sufficient. A notice left at the oflSce of the indorser, with a person there,
was held sufficient Lord v. Appleton, 15 Maine, 270, where it is also said that, if it
had been simply left tliere, in the absence of any person to receive it, it would have
been sufficient. In Miles v Hall, 12 Smedcs & M. .332, the notary went to the bed-side
of the indorser, who was sick, with the notice, and said he had protested a note, but
could not say that the indorser heard liim. He then left the notice on the mantel-
piece. Held sufficient.

(x) Supra, p. 422,' note m. So a notice left at the dwelling-house of an indorser is
sufficient. Franklin v. Verbois, 6 La. 727 ; Coulon v. Champlin, 15 id. 544. A notary's
certificate that he left the notice at the domicil of the indorser is sufficient, as it is
unnecessary to show a delivery to any one there, or that he simply left it, as either
is enough. Manadue v. Kitchen, 3 Rob. La. 261. Notice delivered to a black man,
who seemed to be a servant of the indorser's family, standing before the indorser's
house early in the morning, before the door was opened, and who said that the family
were not up, was held insufficient, defendant proving that the black man was not con-
nected in any way with the family. Dufour v. Morse, 9 La. 333.

(y) But in Cros.se i;. Smith, 1 Maule & S. 545, it appeared that the drawer, to whose
counting-room a person was sent to give notice of the dishonor of the bill, resided but a
short distance from the counting-room ; and in the other cases cited supra, note w, no
mention is made of any demand at the residence, or any suggestion of its necessity or
propriety. In Bank of Columbia v. Lawrence, 1 Pet. 578, it was held, that the fact that
an indorser occupied a room in another's house for settling up his former business, and
where he kept his books of account, and his newspapers and foreign letters were left,
did not make this his "place of business." In Stephenson v. Primrose, 8 Port. Ala 155,
it was held, that a room where a man is accustomed to resort, but where he is not
shown to carry on any regular trade or employment, is not his place of business In
Commercial Bank v. Strong, 28 Vt. 316, it was held, that the office of a railroad cor-
poration of which the indorser was president was not his place of business. A notice
lefl at 'the post-office of which the party notified was postmaster was held sufficient.
Cook V. Renick, 19 111. 598. In Granite Bank v. Avers, 16 Pick. 392. a notice was
left on the counter of the .shop of a stranger, who told the notary that the indorser's
place of business was behind the shop, that the indorser was absent from town, and
promised to give him the notice when he returned. It seems that this was insufficient.
In Chouteau v. Webster, 6 Met. 1, the notice was sent to Washington to the defendant,
» Senator in Congress. Held sufficient, although his permanent place of residence was

490 NOTES AND BILLS. [CH. XH

it may, perhaps, be sent to either, if both are in the same
toYcn.{z)

Here, as in the case of demand, the holder must do what he
can, but is excused by an impossibility. If he does not know
where the indorser lives, but can acquaint himself with it by rea-
sonable endeavors, he must do so. (a) Thus it is not enough to

elsewhere, and although he had an agent who had charge of his business matters in
another place. So also Tunstall v. Walker, 2 Smedes & M. 638, overruling 3 How.
Miss. 259. In Marr v. Johnson, 9 Yerg. 1, notice sent to the residence of a member of
Congress, who was in Washington at the time, was held sufficient. In Hill v Norvell,
3 McLean, 583, a notice to an indorser, a member of the Senate or House of Repre-
sentatives in Washington, left at the post-office of the Senate or House, Congress then
being in session, was held insufficient. In Bank of U. S. v. Lane, 3 Hawks, 453, the
notice was sent to the shire town. The indorser was high sheriff of tlie county, and at
the time was in attendance at the court. Held sufficient, although not sent to the place
where he lived, or to his usual post-office.

(z) Williams v. Bank of U. S., 2 Pet. 96, 101. So where they are in different towns.
Bank of Geneva v. Howlett, 4 Wend. 328; Downer v. Remer, 21 id. 10. A note
was payable at a bank in the town of A., where the indorser got his letters. The
notice was sent to an adjoining town, where he lived. Held sufficient, it not appear-
ing that the party sending the notice knew that the indorser usually received his
letters at A. Seneca Co. Bank v. Neass, 3 Comst. 442, 5 Denio, 329. Where an
indorser lived in one village, and occasionally got his letters there, but transacted
his business in another town, where he received most of his letters, a notice sent tc
the latter place was held sufficient. Montgomerj- Co. Bank i;. Marsh, 3 Seld. 481.
In Runyon v. Mountfort, Busbee, 371, the indorser had lived in Onslow. Some
years before the maturity of the bill, he purcha'^cd a iiouse and lot in Newbcrn, and
afterwards lived in the former place from October till June, and in the latter the
rest of the year. His letters were received in Onslow. The notice was sent to Ncw-
bern in April. Held, that Newbern was not the proper jdace to which the notice
should be sent But in Stewart »;. Eden, 2 Caines, 121, where the indorser resided
part of the year in New York, and spent the summer in the country, a few miles from
that city, a notice put into the keyhole of the door of the house in New York was held
sufficient. And in Exchange, &c. Co. v. Boyce, 3 Rob. La. 307, it was held, that where
a person lives part of the year in one place and part in another, notice may be sent to
either. Where the indorser has two or more places of business in the same town, the
holder may send the notice to either. Phillips t;. Alderson, 5 Humph. 403; Rcdficld,
C. J., Commercial Bank v. Strong, 28 Vt. 316, 320.

(a) Harris v. Robinson, 4 How. 336; Burmester v. Barron, 17 Q. B. 828; Lambert
r. Ghisclin, 9 How. 552; Chapcott v. Curlewis, 2 Moody & R. 484 ; Carroll v. Upton, 3
Comst. 272, 2 Sandf 171 : Rawdon v. Redfield, 2 Sandf 178; Spencer v. Bank of
Salina, 3 Hill, 520 ; Bank of Utica i;. De Mott, 13 Johns. 432 ; Bank of Utica r. Ben-
der, 21 Wend 643 ; Belden ». Lamb, 17 Conn. 441 ; Hill v. Varrell, 3 Grcenl. 233 ; Haly
V. Brown, 5 Penn. State, 178 ; Smith v. Fisher, 24 id. 222 ; Runyon i». Montfort, Bus-
bee, 371 ; Nichol v. Bate, 7 Yerg. 305 ; M'Murtrie i>. Jones, 3 Wash. C C. 206. As to
what constitutes due diligence, it is extremely difficult, if not impossible, to lay down
any general rules ap])licablc to all cases, inasmuch as each one is dependent to a g-eat
degree on its own special circumstances. In Rawdon v. Redfield, 2 Sandf 17f , tn<i

CH. XII.] TO WHAT PLACE THE NOTICE SHOULL BE SENT. 491

address notice by mail to a drawer, at the place where the bill is
drawn, without some inquiry, if any is practicable, to ascertain

general doctrine is laid down, that if the notary inquire of persons who, from their
connection with tiic transaction, are likely to know where the iiidorser resides, and are
not interested to mislead the notary, and he acts on information thus obtained, it is ex-
ercising due diligence. In the case itself, the inquiries were made of the acceptor and
holder, and were considered sufficient. In Harris v. Robinson, 4 How. 336, it was held
that there was no absolute obligation incumbent on the notary to inquire of the holder
of the note where the indorser lived. McLean, J. dissenting, on the ground that, if such
were the law, a holder who is presumed to know where the indorser resides might evade
the law with respect to demand and notice by employing an agent who does not possess
such knowledge. " It is a new principle in the law of agency, that the knowledge of the
principal shall not affect iiim, provided he can employ an agent who has no knowledge
of the subject." The circumstances of the case showed, in the opinion of McLean, J., that
the holder knew where the indorser resided. In Smith v. Fisher, 24 Penn. State, 222,
Haly V. Brown, 5 id. 178, the notices were held insufficient, princi])ally because the
holder and owner had not given any information to the notary as to the place where the
indorser lived. So in Hill v. Varrell, 3 Greenl. 233, it is held that inquiry should be made
of the parties to the note ; the only inquiry made was of one indorser, and the notice was
held insufficient. And in Lawrence v. Miller, 16 N. Y. 235, it was held that the holder is
presumed in law to know where his immediate indorser lives, and is bound to communi-
cate his information to any agent employed to give notice ; and where this had not been
done, and the notary left the notice at the place of business of a stranger of the same
name with the indorser, the latter was discharged. In Preston v. Daysson, 7 La.
714, Bullard, J. said : " It is true the holder of the paper ought not to avail himself of
the ignorance of the notary as to the residence of the indorser, but there is no evidence
to show that the holder knew where she resided." In this case the notary certified that
he had used due diligence. The evidence was, that he sent his clerk to the store of the
drawer, and of the payee and indorser, and could not obtain any information. The
indorser received notice some days after the maturity of the note, and was held. In
Fitler v. Morris, 6 Whart. 406, the holder knew where the drawers lived, but the notary
who sent the notice did not. The notice went to the wrong place, and the drawers
were discharged. See Paterson Bank v. Butler, 7 Halst. 268. In Lambert v. Ghise-
lin, 9 How. .552, the inquiries were made of a person trading at a particular place, who
said that the indorser lived in the same place with him. Held sufficient. It was
also held, that if due diligence was used in sending the notice, it was not necessary
to send a further one, if the holder should subsequently find out the actual residence
of the indorser, and that it was at a different place from the one to which the first
notice had been sent. In Chapman v. Lipscombe, 1 Johns. 294, a bill was dated at,
and accepted in. New York. Inquiries were made at the banks of that place, and
from information thus acquired notice was sent, though to the wrong place. Held
sufficient. In Bank of Utica v. De Mott, 13 Johns. 432, the book-keeper of the
bank where the note was inquired of the cashier and directors, and of others whom
he supposed likely to know. The notice was sent to the wrong place. The indorser
had lived more than ten years previously at his place of residence. Held insufficient.
In Bank of Utica v. Bender, 21 Wend. 643, inquiry of tlie drawer for the residence
of his accommodation indorser, and acting on information so acquired, was held suffi-
cient, though the notice was sent to the wrong place. So in Ransom v. Mack, 2 Hill,
587, where the inquiry was made of the second indorser. In Spencer v. Bank of Salina,
3 id. 520, the nolary testified that he inquired of several persons in a bar-room of a hotel,

492 NOTES AND BILLS. [CH. XU

wheth«',r the drawer lives there. (6) But if he can learn no more,

And of other persons whom he met in the street, and at the post-office. Held, that due
diligence had not been used. Branson, J. said that he ought to have gone among busi-
ness men. " If he had been told by some credible person who would be likely to know
the fact, he might have acted upon that information without pushing his inquiries fur-
ther. But until some one is found who professes to be able to give the required infor-
mation, it will not do to stop short of a thorough inquiry at places of public resort and
among such persons as would be most likely to know the residence of the indorser."
In Belden v. Lamb, 17 Conn. 441, the cashier of a bank where a note was payable
went out of the bank the day the note matured to find wliere the indorser lived, and on
his return directed the notice to be sent to Chicopee. Tiie note was payable at another
bank near by, and the indorser had received notices within a few months previous from
that bank and from others in the same place. Tiie holder of the note did not knoAV
where the indorser lived. Held sufficient evidence from which a jury might infer that
proper inquiries had been made at the other banks, and that due diligence had been
used. Williams, C. J. and Slorrs, J. dissenting. Inquiry by the notary of the officers
of a bank where the note was to be discounted was held not to be using due diligence, in
Stuckert v. Anderson, 3 Whart. 11. In Sturges v. Derrick, Wightw. 76, the holder
inquired of the maker's son where the indorser lived, and could get no infomiation.
Held, due diligence. But in Beveridge v. Burgis, 3 Camp. 262, Lord EllenboromjJi non-
suited the plaintiff in a case where the only inquiries made were at the place where
the acceptance was payable. Where no inquiry is made of the maker or his syndic, or
of a person of the same surname with the indorser, but the initial letter of whose first
name is differently printed in the city directory, sufficient diligence is not used. Vance
V. Depass, 2 La. Ann. 16. Where an indorser, formerly a shipping-master, had kept no
office for some years, though still engaged in business, and, his name not being found in
the directory, the notary went to that quarter of tiic city where his office had been, and
inquired at a shipping-office, the clerk of which said that the indorser formerly stayed
there, but had left, and it was not known where he had gone; and the notary, after in-
quiring at the sailor boarding-houses in the neighborhood and elsewhere without success,
deposited the notice in the post-office of the city when; the indorser resided, it was held
sufficient. Feet v. Zanders, 6 La. Ann. 364. In Brighton Market Bank v. Philbrick,
40 N. n. 506, where the holder of a dishonored note, not knowing the residence or
business address of the indorser, went to the principal liotel in the village where tlie
indorser was accustomed to do business, — that at which men of the same occupation as
tlie indorser usually stopped, — to the keepers of wliich the indorser was well known,
and from the direction of wliich the holder had noticed tiic indorser coming to his own
place of business, and upon inquiring there, was distinctly informed that tlie indorser
resided in a particular town, whereupon he, in good faith, seasonably forwarded notice
of the dishonor to the indorser at that town, it was held that he had exercised due
diligence.

(b) The law is so stated in the following cases ; but in all it appeared that the drawer
lived in a different place from that to which the notice was sent. Carroll v. Uj)ton, 3
Comst. 272 ; Lowcry v. Scott, 24 Wend. 358 ; Foard v. Johnson, 2 Ala 565 ; Hill r.
Varrell, 3 Grecnl. 233 ; Barnwell v. Mitchell, 3 Conn. 101, where it also appeared that
no in(|uiry had been made of the acceptor, who knew where the drawer lived ; Fisher i'
Evans, 5 IJinn. 541, hut in this case no notice was sent. In Tierce v. Struthers, 27
renn. State, 249, an opinion was expressed, to the effect that sending the notice to the
drawer at the place where the. I)ill was dated was prima ficic sufficient ; and if it should
be shown that he lived elsewhere, then due diligence to a.scertain his place of rc.Mdcnco

CH. XII.] TO WHAT PLACE THE NOTICE SHOULD BE SENT. 493

a letter should be so seiit.(c) Or if the party to be notified is
travelling, or is absent from home for any reason, and liis present
address is known to the holder, or if his absence from home is
knowji, and the holder has any means of learning his address, or
of ascertaining whom ho has left behind to attend to his business,
it might perhaps be his duty (but we cannot say tliis on author-
ity) to send notice accordingly. But if a party leaves home
without taking usual and proper precautions to facilitate sending
business communications to him, undoubtedly this is his fault,
and he can relieve himself from no responsibility by such fault,
and will be held to all parties as if duly notified, provided due
efforts were made.(t/) If one about to be absent directs that

should be used. In Robinson v. Hamilton, 4 Stew. & P. 91, the same appears to have
been held. See also Dickins v. Beal, 10 Pet. .572. But this would not probably apply-
to the case of an indorser, because it is difficult to see how there can be any presump-
tion that he lived where the note or bill is made or drawn. Denny v. Palmer, 5 Ired.
610; llunyon v. Montfort, Busbee, 371 ; Branch Bank v. Peirce, 3 Ala. 321 ; Spen-
cer V. Bank of Salina, 3 Hill, 520. In Wood v. Corl, 4 Met 203, the note was dated
at Buffalo. Noti';c was sent to the indorser at that place, and the notary testified that
it was reported that he lived there. The defendant, the indorser, contended that the
plaintiff should be required to prove, either that he lived there, or that due diligence
had been used. But the court held the evidence sufficient. In Page v. Prentice,
5 B. Mon. 7, a bill was dated at Louisville, and notice to the indorser was sent there.
Process had been served upon him in the county in which Louisville is situated. Held
sufficient, in the absence of proof that he resided elsewhere. In Moodie v. Morrall. 3
Const. R. 367, the note was made and payable in Charleston. The maker lived there,
and the indorser, when there, resided in the same house. Payment was demanded of the
indorser's wife, who said that both were absent, and a notice was left there for the in-
dorser. Held sufficient to charge him. In Sasscer v. Whitely, 10 Md. 98, Le Grand, C.J.
said : " In the absence of knowledge of tlie holder, to be shown in proof, the place of
the date of the note is to be taken as the place of residence of the maker and indorser."
If the holder does not know where the indorser lives, and cannot ascertain it by due
diligence, it will be sufficient to send the notice to the place wlierc the note or bill is
dated. Godley v. Goodloe, 6 Smedes & M. 255 ; Branch Bank v. Peirce, 3 Ala. 321 ;
Bank of Utica v. Davidson, 5 Wend. 587 ; Sasscer v. Whitely, 10 Md. 98.

(c) See the cases cited supra, note b. It may be doubted, however, whether this is
necessary, since where the place of residence cannot be ascertained, after due diligence
has been used, no notice at all is necessary. Balclivin, J., Dickins r. Beal, 10 Pet. 572,
580; Hoopes v. Newman, 2 Smedes & M. 71, 79; M'Lanahan v. Brandon, 13 Mart.
La. 321 ; Robinson v. Hamilton, 4 Stew. & P. 91. But in Phipps v Chase, 6 Met.
191, S/iaiv, C. J. said, that if the actual place of residence of a party could not be as-
certained, notice should be given at his last place of abode.

(d) Where the holder is temporarily absent, notice should be left at his last place of
abode or of business. Curtis v. State Bank, 6 Blackf. 312; Wilco.K v. M'Nutt, 2
How. Miss. 776 ; Moodie v. Morrall, 3 Const. R. 367, su/ira, note b. Notice left wit'n the
wife of the indorser, in his absence, is sufficient. Blakely v. Grant, 6 Mass. 386 ;
Fisher v. Evans, 5 Binn. 542 ; Cromwell i;. Hynson, 2 Esp. 51 1 ; Ilousego v. Cowne, 2

VOL. I. 42

494 NOTES AND BILLS. [CH. XIL

notice should be sent to liim at a certain distant place, notice so
sent to him, and from him to prior parties, will bind botli him
and the prior parties, although it would have reached him and

M. &. W. 348. Notice left with a fellow-boarder, at a private boarding-house where
the indorser lodged, in his absence, is sufficient. Bank of U. S. v. Hatch, 6 Pet. 250, 1
McLean, 90 ; M'Murtrie v. Jones, 3 Wash. C. C. 206. In Ashley r. Gunton, 15 Ark.
415, the notary left the notice at the hotel where the indorser resided, addressed to him.
It did not appear whether the indorser was at the hotel at the time, or the notary in-
quired for him, or left the notice with any person for him. Held insufficient. So in
Rives V. Parmley, 18 Ala. 256, Coster v. Thomason, 19 id. 717, where the only testi-
mony' was the notary's certificate that the notices were left at the office of the indorser.
But Curry v. Bank of Mobile, 8 Port. Ala. 360, seems contra. In Bradley v. Davis,
26 Maine, 15, the notice was left with the bar-keeper of a hotel, for a guest. It was
testified that letters so left were put into an urn, and sent up to the guests' rooms
within a short time after their reception. The court thought tliis sufficient. So Dana
V. Kemble, 19 Pick. 112. In Howe v. Bradley, 19 Maine, 31, the indorser occupied a
room in a public house. The notary went to the house, and learning that he was
absent, left a notice at the door for him. It was proved that his room was locked.
Held sufficient. See Lord v- Appleton, 15 Maine, 270 ; supra, p. 489, note w. In
McCIain v. Waters, 9 Dana, 55, it was held, that when the indorser or drawer is a
transitory person, without any fi.xed place of residence, notice m.iy be sent directed to
the place where he usually resorts. In Tunstall v. Walker, 2 Smedes & M. 638, it is
said that no notice at all is necessary in such case. In case of a permanent removal
between the making and maturity of a note, it is laid down in some cases that the
holder must use reasonable efforts to ascertain the new place of residence, and give
notice there. Phipps v. Chase, 6 Met. 491 ; Barker v. Clark, 20 Maine, 156. But in
others the doctrine is held, that the presumption is that the indorser continues to
reside where he did when he indorsed the note, and that a notice sent there is suffi-
cient, unless the holder knew, or ouglit to have known, of his removal. Bank of
Utica V. Phillips, 3 Wend. 408, where Marcy, J. said : " It appears to me that the
question of diligence cannot arise e.Kccpt in cases where the party knows, or ought
to know, that there is occasion for its e.\ercise. Ought the holders of this note, when
it fell due, to have known that between its discount atid maturity tlie indorser had
changed his residence ? They had no reason to expect such an event, and of course
no considerations of diligence could have prompted them to institute any inquiry in
relation to it. Where tiic place of an indorser's residence is established at the time
when a note, having the usual time of bankable ])aper to run, is discounted, and is at
such a distance from the place of payment as to repel the ]ircsuin]>tion tiiat a removal,
in case it happens before the note falls due, would come to the knowledge of the holders,
and no actual knowledge is brought home to them, a notice of demaiul and non-j)ayment
directed to such place of residence is sufficient, altliough the indorsee has, in fact, in
the mean time become a resident of another iilacc." The same was held in Harris v,
Memphis Bank, 4 Humph. 519. In Farmers', &c. Bank v. Harris, 2 Hum|)h 311, the
judge ciiarged the jury, that where the places of residence of the holder and indorser
were near to each other, and communication frequent, tiio holder would, in legal con-
templation, be presumed to know of the removal. Held incorrect, as it is a matter of
fact and not of law. In Planters' Bank r. Bradford, 4 Humph. 39, where the removal
was made under circumstances of particular notoriety, the notice sent to tiie forinei
place of residence was held insufficient. In Winans i'. Davis, 3 Ilariison, 276, ther*

CH. Xn.] TO WHAT PLACE THE NOTICE SHOULD BE SENT. 495

them much sooner if sent to his residence. (e) And if a foreigner
in going away tells the holder where he is going, liis absence is
no excuse for non-notice, because it should be sent to the place
he pointed out.(/) If a drawer or indorser hold himself out
to the public as a resident of any town, and thereby deceive
the holder, inducing him to send the notice there, tlie notice so
sent will be binding, although the indorser live elsewhere. (^'-)
In such case he would be estopped from denying the validity of
the notice on the ground that it was sent to the wrong place.

The general rule applicable to all cases is, that the party
should send the notice to that place where it would most proba-
bly find the party to be notified most promptly, either in fact or
according to the best information he possessed or could obtain by
the reasonable use of such means as were within his power. (A)

were inquiries made by the holder which would have justified him in sending the notice
to the former place. So in Bank of Utica v. Davidson, 5 Wend. 587. In Dun-
lap V. Thompson, 5 Yerg. 67, notice sent to the place from which the indorser had re-
moved was held sufficient. So also Hunt v. Fish, 4 Barb. 324 ; McGrew v. Toulmin,
2 Stew. & P. 428, 436.

(e) Shelton v. Braithwaite, 8 M. & W. 252. Where the place is mentioned in the
indorsement, it is to be considered as a part thereof, and notice sent there is sufficient.
Morris v. Husson, 4 Sandf. 93 ; Carter v. Union Bank, 7 Humph. 548 ; Farmers', &c.
Bank v. Battle, 4 id. 86 ; Baker v. Morris, 25 Barb. 138. In the last case the indorser
wrote after his name the words, " Auburn P. 0." Held, that a notice deposited there
was good, although all the parties lived in the same town. So notices may be sent to
any place where the indorser directs them to be left, although he may have a place
of residence or of business elsewhere. Eastern Bank v. Brown, 17 Maine, 356. See
Bank of U. S. v. Corcoran, 2 Pet. 121,131. Although there may be post-offices nearer
to the place where he lives. Crowley v. Barry, 4 Gill, 194 ; Bell v. Hagerstown Bank,
7 id. 216 ; Bank of Columbia r. Magruder, 6 Harris & J. 172 ; Cormena v. Bank of
Louisiana, 1 La. Ann. 369.

(/) See Hodges v. Gait, 8 Pick. 251.

{g) Lewiston Falls Bank v. Leonard, 43 Maine, 144. In this case the indorser was
the president of a bank in Hallowell, from some time prior to making the note till
after its maturity, but liis actual place of residence was in New York. By a statute
of Maine, no one but a resident of that State was eligible to the office of director of a
bank. The indorser had a box in the post-office in Hallowell, and his daughter was in
the habit of taking his letters and forwarding them to him. She testified to having
received the notice in question, but said she never sent it to her father. The indorser
was held.

(h) In Chouteau r. Webster, 6 Met. 1, 7, S?iaw, C. J. said: "It is conformable to
the more general rule, sustained by many authorities, that notice shall be so given, and
at such place, that it will be most likely to reach the indorser promptly. Bank of Co-
lumbia V. Lawrence, 1 Pet. 578 ; Btnk of U. S. v. Carneal, 2 id. 543." For the inquiries
which should be made, see the cases cited supra, p. 490, note a. In Bank of Utica t'.
Bender, 21 Wend. 643, the bill was dated at C., and under the defendant's name as

496 NOTES AND BILLS. [CH. XH.

If it be sent where the drawer did actually reside, his absence
from home or his removal does not vitiate the notice, unless such
removal was known, or should have been known, to the sender. (f)

If it actually reaches the party to be notified in due season, it
is altogether immaterial to what place it was sent. (7)

We have already seen (k) that, in cases where the mail may
legally be used for the purpose of transmitting notices of dishonor,
the sender is not responsible for any failure in their transmission.
Consequently, under such circumstances, puttiiig a notice to an
indorser or a drawer in the post-office, properly directed to him
at the place where he lives, is considered generally as using due
diligence. (/) Where there are two or more post-offices in the

indorser was written " C," and notice was sent to the defendant by mail to C.
Bronson, J. said : " It is not absolutely necessary that notice should be brought home
to the indorser, nor even that it should bo directed to the place of his residence. It is
enough that the holder of a bill maices diligent inquiry for the indorser, and acts upon
the best information he is able to procure. If after doing so the notice fail to
reach the indorser, the misfortune falls on him, not on the holder. There must be
ordinary or reasonable diligence, such as men of business usually exercise when their
interest depends upon ol)taining correct information. The holder must act in good
foith, and not give credit to doubtful intelligence, when better could have been ob-
tained The case then comes to this. The plaintiffs applied for information to a

man worthy of belief, and who was likely to know where the indorser lived. They re-
ceived such an answer as left no reasonable ground for doubt that C. was the place to
which the notice should be sent. I think they were not bound to ])ush the inquiry further.
Men of business usually act upon such information. They buy and sell, and do other
things affecting their interest, upon the credit which they give to the declarations of a
single individual concerning a particular fact of this kind within his knowledge. This
is matter of common experience. Ordinary diligence in a case like this can mean no
more than that the inquiry shall be pursued until it is satisfactorily answered. This is
the only practical rule. If the holder of a bill is required to go further, it is impossible
to say where he can safely stop. Would it be enough to inquire of two, three, or four
individuals, or must he seek intelligence froni every man in the place likely to know
anything about the matter ? It would be diflBcnlt, if not impossible, to answer this
question."

(i) Supra, p. 493, note d.

(7) Bradley i;. Davis, 26 Maine, 45. See Dana v. Kerablc, 19 Pick. 112; Wash-
iiHlton, J., Bank of U. S. v. Corcoran, 2 Pet. 121, 132. In Wharton v. Wright, 1 Car.
& K. ."JS.!, the bill was dated " Brunswick Hotel." The defendant, an indorser, was
employed on various railways, and had no fixed place of residence. His wife had
made a memorandum that she had received the notice. Held admissible to prove re-
ception of the notice by the defendant, the wife being dead, and a verdict was rendered
against him.

(k) Supra, p. 478, note v.

(/) Carson v. State Bank, 4 Ala. 148; Crisson v. William.son, 1 A. K. Marsh. 454;
Rand v. Ueynolds, 2 Gratt. 171, infra, p. 497, note 7n; Thorn r. Rice, 15 Maine, 263;
Story, J., Bank of U. S. v. Carneal, 2 Pet. 543, 551.

CH. XII. ] TO WTIAi' I'LACK TllK XOIICK SHOULD BE SENT. 407

same town, a notice directed to the town, without specifying any
particular part of it, is sufficient, (m) uidcss the holder knew, or
ought to have known, at which post-office the party to be notified
resorted for his letters, in which case the notice should be sent
there. (?i) Where there is no post-office in the town where the>
drawer or indorser resides, notice would seem to be sufficient if
sent to the nearest post-office, (o) although there are authorities

(m) Bank of Manchester ik Slason, 13 Vt. 334, wlicre notice was not sent to the
post-office nearest tlie place of I'csidencc of tlie indorser, and wiiere he nsiuiUy {;ot liis
letters; Catskill Bank v. Stall, 15 Wend. 364 ; Reiner v. Downer, 23 id. 620, 21 id.
10; Morton v. Wcstcott, 8 Cush. 42.'); Cabot Bank c. Russell, 4 Gray, 167. See Ha-
zelton Coal Co. v. Ryerson, Spencer, 129 ; Gale v. Keinper, 10 La 20.') ; Ciiyler v. Nel-
lis, 4 VVeiid. 398, which held that in such ease tlie holder was bou;id to make reasona-
ble inquiries to ascertain to which post-office the indorser usually resorts, or wJiich is
the nearest one, is overruled. This last seems to be the opinion held in Ferris v. Sax-
ton, 1 South. 1 ; Taylor v. Bank of 111., 7 T. B. Mon. 576. In Becnei v. Tournillon,
6 Rob. La. 500, a notice directed to a parish generally, in which there were several post-
offices, was held insufficient. But in Follain v. Dupre, 1 1 id. 454, it was proved that
the notice so directed would regularly go to the office nearest the indorser's residence,
and the indorser was held. In Rand v. Reynolds, 2 Gratt. 171, a notice sent to a post-
office within the same district in which the indorser lived was held sufficient; although
the indorser usually got his letters in a different town, which was nearer his residence.
In Weakly v. Bell, 9 Watts, 273, a notice sent to the shire town of the county where
the indorser lived was held sufficient, although there was a nearer post-office which he
was in the habit of using.

(n) In Morton v. Westcott, 8 Cush. 425, Shaw, C. J. said : "It seems well settled,
that, when there are two post-offices in a town, notice by letter to an indorser addressed
to him at the town generally is sufficient, unless the party addressed has been gener-
ally accustomed to receive his letters at one of the offices in particular, and to have his
letters addressed to him there by his correspondents. Such being the rule, the plain-
lift' proves his case, prima facie, by proving notice by letter addressed to the defend-
ant at the town generally. If, then, the defendant would rebut this presumption of fact,
and bring himself within the exception, it lies on him to prove that he did usualh' re-
ceive his letters at one office only, and that this might have been known by reasonable
inquiry at the place where the letter was mailed. Without this proof it may be true
that the defendant received his letters habitually as well at one post-office as the other,
and then the plaintiff"'s prima facie proof remains unrebutted, and he must prevail."

(o) Shed V Brett, 1 Pick. 401 ; Union Bank v. Stoker, 1 La. Ann. 269 ; Priestley v.
Bisland, 9 Rob. La. 422. See Mainer v. Spurlock, id. 161 ; Duncan v. Sparrow, 3 id.
264; Mechanics', &c. Bank v. Compton, id. 4 ; Nicholson p. Marders, id. 242 ; Union
Bank v. Brown, 1 id. 107 ; Nott v. Beard, 16 La. 308. See Foreman v. Wikoff", id. 20 ;
Downer v. Remer, 21 Wend. 10 ; Dunlap v. Thompson, 5 Yerg. 67, where the indorser
had removed a few days before maturity, and a notice sent to the former place was held
sufficient ; Farmers', &c. Bank v. Battle, 4 Humph. 86 ; State Bank i'. Avers, 2 Halst.
130; Hazelton Coal Co. v. Ryerson, Spencer, 129; Ferris v. Saxton, 1 Southard, 1 :
Ouyler v. NeUis, 4 Wend. 398 ; Taylor v. Bank of 111., 7 T. B. Mon. 576 ; Bondurant
p. Everett, 1 Met. Ky. 658 ; Thompson, J., Bank of Columbia v. Lawrence, 1 Pet. 578,
583; Story, J., Bank of U. S. v. Carneal, 2 id. 543, 551. In Davis v. Beekham, 4
Vol. L— 2 G

498 NOTES AND BILLS. [CH. XH.

which holi that a special messenger should sometimes be used ; (p)
and where the nearest post-office is unknown, a notice directed to
that which, on proper inquiry, is supposed to be the nearest, will
suffice. (^) But it is held, that notice may be sent to the post-
office to which the indorser usually resorts, although there are
other offices nearer his place of residence, (r) and although this
office is in a different town from the one in which the party to be
notified lives. (5) And in conformity with the same principle it
is held, that where the indorser is in the habit of receiving his
letters at either one of three post-offices, the notice may be sent
to either of the three. (^)

Humph. 53, notice was sent to the one designated as the nearest ; but on proof being
offered that it had been discontinued for a year, the notice was held insufficient. In
Davis tK Williams, Peck, 191, the plaintiff, knowing where the defendant lived, sent
the notice to a place sixteen miles distant, although there was a post-office within five
miles. The indorser was discharged. In Moore v. Hardcastle, 11 Md. 486, notice was
sent to the shire town of the county, when the indorser lived twelve miles distant.
His usual post-office was four miles from his residence. There was no proof of any
inquiry by the notary for the nearest post-office. Held insufficient.
{p) Supi-a, pp. 478, 479.
(q) Marsh v. Barr, Meigs, 68, 9 Yerg. 253.

(r) Bank of U. S. v. Carneal, 2 Pet. 543 ; Thompson, J., Bank of Columbia v. Law-
rence, 1 id. 578, 583 ; Bank of Geneva v. Howlett, 4 Wend. 328 ; Wliittlesei/, J., Seneca
Co. Bank r. Neass, 5 Denio, 329, 338 ; Mercer v. Lancaster, 5 Penn. State, 160 ; Sher-
man V. Clark, 3 McLean, 91 ; Bank of Louisiana v. Watson, 15 La. 38 ; Mead v. Car-
nal, 6 Rob. La. 73 ; New Orleans, &c. Co. v. Robert, 9 id. 130; Grand Gulf, &c. Co.
V. Barnes, 12 id. 127 ; New Orleans, &c. Co. v. Barrow, 2 La. Ann. 326 ; Hepburn v.
Ratliff, id. 331 ; New Orleans, &c. Co. v. Patton, id. 352; Citizens' Bank v. Walker,
id. 791 ; Bank of Louisiana v. Tournillon, 9 id. 132; Farmers', &c. Bank v. Battle,
4 Humph. 86 ; Hazelton Coal Co. v. Ryerson, Spencer, 129 ; Walker v- Bank of Au-
gusta, 3 Ga. 486 ; Moore v. Hardcastle, 11 Md. 486 ; Gist v. Lybrand, 3 Oliio, 307 ;
Glasscock V. Bank of Mo., 8 Misso. 443.

(s) Bank of Columbia v. Lawrence, 1 Pet. 578 ; Rcid v. Payne, 16 Johns. 218 ; Bank
of Geneva v. Howlett, 4 Wend. 328 ; Ransom v. Mack, 2 Hill, 587 ; Morris v. Husson,
4 Sandf. 93 ; Wliittlesei/, J., Seneca Co. Bank v. Neass, 5 Denio, 329, 338. See Mont-
gomery Co. Bank v. Marsh, 3 Seld. 481 ; Sliaw, C. J., Chouteau v. Webster, 6 Met.
1, 6: Bank of Columbia v. Magrudcr, 6 Harris & J. 172; Grand Gulf, &c. Co. v.
Banies, 12 Rob. La. 127 ; Bird v. McCalop, 2 La. Ann. 351 ; New Orleans, &c. Co.
V. Patton, id. 352 ; Glasscock v. Bank of Mo., 8 Misso. 443.

{!) Bank of U. S. V. Carneal, 2 Pet. 543. The earlier cases on this point in Louisiana
held tliat the notice must be sent to tiie nearest. Mechanics', &c. Bank v. Compton,
3 Rob. La. 4 ; Nicholson v. Marders, id. 242 ; Mead v. Carnal, 6 id. 73. In Follain v.
Duprc, 11 id. 454, it was held that, where there was only a difference of a mile or two
in the distances of the offices from tlic indorser's residence, the notice might be sent to
cither. And in the later cases — New Orleans, &c. Co. i'. Briggs, 12 id. 175 ; Bank of
Louisiana >;. Tournillon, 9 La. Ann. 132 — it is held that, where there arc two or
more usual offices, notice may be sent to either.

CH. XII.] TO WHOM NOTICE SHOULD BE GIVEN. 499

SECTION IT.

TO WHOM NOTICE SHOULD BE GIVEN.

Upon the question to whom notice must be given, altliough
the practice is sufficiently uniform, it is not easy to state a rule
which meets all the cases. We think, however, that the true
rule, although it may not reconcile all the authorities, and indeed
must be open to some exceptions, should be this : Every person
who, by and immediately upon the dishonor of the note or bill,
and only upon such dishonor, becomes liable to an action, either
on the paper, or on the consideration for which the paper was
given, is entitled to immediate notice.

Notice should certainly be given to all the parties, but the
holder is bound to give notice only to the indorser whom he
intends to hold liable, and he may charge a subsequent indorser
without notifying a prior,(M) or a prior without notifying a sub-
sequent one,(i;) provided the party whom he notifies exercises
his right to secure himself by giving notice further. Notice may
certainly be given to the agent of the party to be notified, (ti;) It
has been said that strict proof of authority to receive notice is
required, (x) but this cannot apply where notice is properly left
at the place of business or of abode of the party to be notified,
because a notice left there with any one who is found on the

(a) Baker v. Morris, 25 Barb. 138 ; Morgan v. Van Ingen, 2 Johns. 204 ; Morgan
V. Woodworth, 3 Johns. Cas. 89; Carter i;. Bradley, 19 Maine, 62; State Bank v.
Hennen, 16 Mart. La. 226; Peyroux v. Dubertrand, 11 La. 32 ; McCuUock v. Com-
merciiil Bank, 16 id. 566 ; Union Bank v. Lea, 7 Rob. La. 76; Union Bank v. Hyde,
id. 418; Grand Gulf, &c. Co. v. Barnes, 12 id. 127; Watson v. Templeton, 11 La.
Ann. 137 ; Lawson v. Farmers' Bank, 1 Ohio State, 206 ; Wilcox v. Mitchell, 4 How.
Miss. 272 ; Valk v. Bank of South Carolina, 1 McMuUan, Eq. 414 ; Mathews v. Fogg,
1 Rich. 369 ; Whitman v. Farmers' Bank, 8 Port. Ala. 258.

(v) Harrison v. Ruscoe, 15 M. & W. 231.

(lu) Hestres v. Petrovie, 1 Rob. La. 119; Wilkins v. Commercial Bank, 6 How.
Miss. 217. An attorney at law is not authorized to receive notices for his client unless
by special authority. Louisiana State Bank v. Ellery, 16 Mart. La. 87. In Fortner
17. Parham, 2 Smedes & M. 151, delivery of a notice to the indorser's clerk in the
street, without proof of its reception, or of the clerk's authority to receive it, was held
(nsuflScient. In Patcrson Bank v. Butler, 7 Ilalst. 268, notice delivered to a stranger,
who said he was the indorser's brother, was held insuflScient.

[x/ Montillet v. Duncan, 11 Mart. La. 534.

500 NOTES AND BILLS. [CH. XH

premises would ordinarily be sufficient. (//) "We have seen that
a presentment to any one there would be sufficient, (2^) and if
this is true where something is expected to be done by the party
of whom the demand is made, it certainly is true where nothing
is to be done except to receive a notice.

Authority to indorse negotiable paper has been held not to
carry with it authority to receive notice of dishonor, (a) but an
opinion to the contrary has been expressed. (Z>)

If an agent draws a bill in his own name, notice must be given
to him, and if given to his principal, who is no party to the paper,
it will not be sufficient, (c)

If a person entitled to notice be bankrupt, notice should be
given to him, if his assignees are not yet appointed. (c?) If they
are, notice should perhaps be given to them, if the fact of their
appointment is known to the holder, or might be known by him
hy the exercise of due diligence, (e) but notice might perhaps even
then be sufficient if given to the bankrupt. Under our Stato
insolvent laws, and wherever the point has not been settled by
decision or a positive usage, it would seem to be the safest course
to give notice both to the insolvent and to the assignees also.

If the insolvent has absconded, notice should be given to the
assignees ; (/) and if they are not appointed, we should suppose
that a delay until their appointment would not discharge any
one ; and although notice may be given to any one holding or
representing the estate, (;§•) we should think it better to notify the
assignees when appointed.

If the indorser is dead at the time the note matures, and this

(y) Cromwell v. Hynson, 2 Esp. 511 ; Housego v. Cowne, 2 M. & W. 348, where
notices left at the indorser's house with his wife were held sufficient.

(z) Supra, p. 489, note z.

(a) Valk V. Gaillard, 4 Strob. 99 ; Sharkei/, C. J., Wilcox v. Routh, 9 Smedes &
M. 476, 483.

(h) Lord Tenterden, C. J., Firth v. Thrush, 8 B. & C. 387.

(c) Grosvenor v. Stone, 8 Pick. 79. In Clay v. Oakley, 17 Mart. La. 137, it was
held, that, where the agent indorses in the principal's name, notice to the hitter is suffi-
cient. Whether it might he safely given to the agent in such case may dc|)cnd upon tho
question whether an authority to indorse carries with it an authority to receive notice.

(ri) Sec Ex parte Moline, 19 Ves. 216.

{c) Sec Kohde v. Proctor, 4 B. & C. 517, C Dow. & II. 610 ; Ex parte Johnson, 3
Dcac. & C. 433, 1 Mont. & A. 622 ; Ex parte Chappd, 3 Mont. & A 490, 3 Dcac. 218.

(/) Rohde V. Proctor, 4 B. & C. .')I7, C Dow. & 11. 610.

Ig) Sec Rohde v. Proctor, 4 B. & C. 517, G Dow. & R. 610.

CH. Xn.] TO WHOM NOTICE SHOULD BE GIVEN. 501

fact is known to the holder, notice must be sent to his adminis-
trators or executors, if it can be ascertained by reasonable inqui-
ries who and where they are,(/i) and a notice directed to the
deceased by name will, under such circumstances, be insufficient
to charge the estate. If the death is not known, and nothing
appears to show that the sender ought to have known this fact,
notice addressed to the deceased indorser will be sufficient, (t)
and the same would be true where the holder cannot by reason-
able diligence ascertain whether there is an administrator or
executor, or who he is or where he resides. (j)

It may not always be necessary to designate the administrator
or executor by name. Thus, where the notary, being ignorant
as to who the administrator or executor was, sent the notice
directed to the "legal representative" of the indorser, but mailed
to his last place of residence, this Avas held sufficient, although
the notary might have ascertained the name without much
trouble, on the ground that " legal representative " and " admin-
istrator " or " executor" are synonymous terms. (/c)

(h) Oriental Bank v. Blake, 22 Pick. 206, where the holder, knowing that the indorser
was dead, left the notice af his last place of residence. Held insufficient. So Cayuga
Co. Bank v. Bennett, 5 Hill, 236, where the holder knew of the indorser's death,
that his will had been proved, and that it was in the surrogate's office, in the village
where the holder lived. In Barnes n. Reynolds, 4 How. Miss. 114, the notice was sent
to the indorser's last residence. The judge charged the jury, that if the holder knew
of the death of the indorser, and could by ordinary diligence have ascertained who his
executors were, it was incumbent on him to give them notice ; but if the holder did not
know of the death, or by ordinary diligence could not have ascertained who wore the
executors, the notice directed to the intestate was sufficient. Held correct, and a ver-
dict for the plaintiff was sustained. Where an indorser died eight months before the
note matured, notice directed to him was held bad, in the absence of proof by the
plaintiff of due diligence in ascertaining who were the representatives. Bank of Lou-
isiana V. Smith, 4 Rob. La. 276. But where the heir has been put in possession of the
estate before maturity, notice directed to the indorser's legal representative is not suf-
ficient. Christmas v. Fluker, 7 id. 13. But notice should be sent to the executor,
although the heir had been recognized, had given security, and taken possession, if the
executor has not rendered any account, nor received from the heir the money neces-
sary to pay tlie debts. New Orleans, &c. Co. v. Kerr, 9 Rob. La. 122. See the case?
cited infra, chapter on Excuses for Want of Notice.

[i] Merchants' Bank v. Birch, 17 Jolnis. 25 ; Planters' Bank v. White, 2 Humph.
112. See Bcals v. Peck, 12 Barb. 24.5 ; Barnes v. Reynolds, 4 How. Miss. 114, supra.
note h. Lapse of time may have the effect of requiring the plaintiff to prove due dili-
gence. See Bank of Louisiana v. Smith, 4 Rob. La. 276, supra, note k.

(j) Metcalf, J., Mass. Bank v. Oliver, 10 Cush. 557 ; Stewart v. Eden, 2 Caines, 121 ;
Barnes v- Reynolds, 4 How. Miss. 114, supi-a, note h.

{k) Pillow V. Hardeman, 3 Humph. 538.

502 ^ NOTES AND BILLS. [CH. XH.

But a notice sent to the " estate " of a deceased was held
insufficient, where the name of the administrator could have
been ascertained without much difficulty. (/) The reason given
was, that the word " estate " was too ambiguous, comprehend-
ing the heir-at-law equally with the administrator or executor.
In all these cases, as in many others, if it reaches the adminis-
trator or executor seasonably, the notice will be good, and proof
of its reception will supply any defects in the sending, (m) No-
tice to one of several administrators or executors has been held
sufficient, on the ground that they, like partners, all represent
one and the same interest, (/i)

Notice to one member of a partnership which indorses a note
or bill is notice to all, because each partner represents tlie inter-
ests of the other partners and of the partnersliip,(o) and the same
has been held where the notice has been given after dissolution
and publication. (;?) So if one of the firm dies before maturity,
notice to the surviving partner is sufficient to hold the estate and
the legal representative of the deceased. (^) If a bill be drawn
on the firm by one partner, and accepted by him, notice of dis-
honor need not be given to the firm.(r)

But the interests of each joint indorser are not so far similar
that notice to one is notice to all ; they should all be notified ; (s)
nor should a notice to any mere member of a joint-stock com-

(/) Mass. Bank v. Oliver, 10 Cush. 557.

(m) Cowen, J., Cayuga Co. Bank v. Bennett, 5 Hill, 236. Sec Beals v. Peck, 12
Barb. 245 ; Mass Bank v. Oliver, 10 Cu.sh. 557.

(?i) Beals V. Peck, 12 Barb. 245 ; Lewis v. Bakewell, 6 La. Ann. 359, where notico
was given to the maker, one of three executors of the indorser.

(o) Nott V. Douming, 6 La 680, 684 ; Mageo v. Dunbar, 10 id. 546. See Beals v.
Peck, 12 Barb. 245, 251 ; Willis v. Green, 5 Hill, 232 ; and cases cited infra, note r.

{p) Coster r. Thomason, 19 Ala. 717.

iq) Cocke V. Bank of Tcnn , 6 Humph. 51 ; Dabney v. Stidger, 4 Smedcs & M. 749.

(r) Khctt V. Poe, 2 How. 457 ; Fuller v. Hooper, 3 Gray, 334 ; Gowan v. Jackson,
20 Johns. 176 ; Porthouse v. Parker, 1 Camp. 82 ; Bignold v. Watcrhouse, 1 Maulc A
S. 255.

(s) Shcpard v. Hawley, 1 Conn. 367 ; Willis v. Green, 5 Hill, 232 ; Bonis r. Peck,
12 Barb 245. Sec Bank of Chenango v. Root, 4 Cowen, 126; Sayrc v. Frick,
7 Watts & S. 383 ; Miser v. Trovinger, 7 Ohio State, 281 ; State Bank v. Slaughter,
7 Blackf. 133; Dabney v. Stidger, 4 Smcdes & M. 749; Wood v. Wood, 1 Harri-
son, 429. Contm, Dodge v. Bank of Ky., 2 A. K. Marsh. 610, 615; Hijgins v.
Morrison, 4 Dana, 100, 105 ; Byles on Bills, p. 229, citing Porthouse v. Parker, 1
Camp. 82. In this case, however, by the head note, it ai)pears tiiat tiie drawers wcro
partners.

CII. XII.] BY WHOM NOTICE SHOULD BE GIVEN. 503

paiiy, who was not an officer nor agent of the company, suffice to
bind the corporation. (^)

If one not a party to the note assign it without indorsement,
he is not entitled to strict notice. (z<) But where an action on
the consideration or on the paper, as on guaranty or the like,
accrues to the transferee, we should say the transferrer was
entitled to have notice given him.(y) "We shall also, under the
subject of Guaranty, see that a guarantor of a promissory note is
entitled only to have such notice as shall be actually sufficient
for his safety, and cannot in general defend himself by showing
want of notice, without showing also actual injury. (i^)

SECTION V.

BY WHOM NOTICE SHOULD BE GIVEN.

There appoars to be considerable confusion in the language of
the courts, and in the cases, with reference to the party by wliom
notice should be given. Thus it has been said that notice mtist
come from the holder, and that d! notice given by any other party
was insufficient, because the drawer or indorser is not apprised
thereby of the holder's intention to look to him for payment. (a;)

It has also been said that it makes no difference who apprises
the drawer, since the object of the notice is that the drawer may
have recourse to the acceptor. (y)

It has likewise been said that any party to the bill may give
notice. (2r)

The first of these propositions is clearly inaccurate, because it
has long been settled that a notice properly given by a prior
indorser, in due time, will enure to the benefit of the subsequent

(t) See Powles v. Page, 3 C. B. 16.

((() Van Wart v. Wooley, 3 B. & C. 439, 445 ; Swinyard v. Bowes, 5 M. & S. 62.

(v) Infra, Vol. II. p. 137.

(w) infm, Vol. II. p. 137.

(r) Tindal v. Brown, 1 T. R. 167, 2 id. 186 ; Ex parte Barclay, 7 Ves. 597. These
uJtses were expressly overruled by Chapman v. Keane, 3 A.& E. 193, 4 Nev. & M. 607,

(v) Lord Kenipti, Shaw v. Croft, Chitty on Bills, p. 333.

{z] 3 Kent. Com. 108; Lord Ellenhorouyh, Wilson v. Swabey, 1 Stark. 34; Glasg-ow
i;. Pratte, 8 Misso. 336. See Glasscock v. Bank of Mo., id. 443 ; Walker v. Bank of
Mo., id. 704 ; Duncan, J., Juniata Bank v. Hale, 16 S. & R. 157, 160.

n04 NOTES AND BILLS. [CH. XIL

parties. (fi) Thus, if the holder duly notifies the sixth indorser,
and he the fifth, and he the fourth, and he the third, and lie the
second, and he the first, the latter will be liable to all the par-
ties. (Z>) So notice duly given by a subsequent indorser to the
prior indorser will enure to the benefit of all up to the first. (c)
Thus, if the holder in the case supposed duly notified all the
indorsers, the first indorser will be liable to all, although the
holder was the only party to give the notice.

The second proposition cannot be true, because it is equally
well settled that notice cannot be given by a stranger to the note
or bill.(^)

The third proposition is inaccurate, because it is clear that no-
tice cannot be given by any party who is himself discharged by
the laches of any prior party, either on his own account, (e) or
for the benefit of other parties to the bill.(/) There appears to
be much doubt whether notice given by the acceptor who refuses
to pay is a good notice, which can enure to the benefit of any
other party. It has been decided that a notice so sent to the
drawer is sufficient to bind him.(^'-) But this has been much
questioned, (/i) on the ground that one of the objects of sending

{a) Jameson v. Swinton, 2 Camp 373, 2 Taunt. 224; Wilson v. Swabcy, 1 Stark.
.34 ; Bray v. Hadwcn, .5 Maule & S. GS ; Cliapman v. Kcaiie, 3 A. & K. 193, 4 Ncv.
& M. 607 ; Lysaght v. Bryant, 9 C. B. 46 ; TripKnt r. Hunt, 3 Dana, 126 ; Wliiiman
V. Farmers' Bank. 8 Port. Ala. 2.i8 ; Wilcox ;;. .Mitchell, 4 How. Miss. 272 ; Hcnsliaw
r. Triplett, 23 Misso. 213; Glasscock v. Bank of Mo., 8 Misso. 443 Sec Baker v.
Morris, 25 Barb. 138.

(b) In Hilton v. Shepherd, 6 East, 14, note c, there were six indorsers, and notice
was regularly given by the indorsers in succession. The second sued the first indorser,
and recovered.

(c) Stafford v. Yates, 18 Johns. 327; Abat v. Kion, 9 Mart. La. 46.5; Marr v.
Johnson, 9 Yerg. 1 ; Wilcox v. Mitchell, 4 How. Miss. 272. Whether this is confined
to the case of actual reception by the party to be charged, or whether, if a subsequent
indorser, after using due diligence, sends the notice to the wrong place, this enures to
the benefit of any party, is considered infra, p. 627.

{(I) Stewart V. Keniiett, 2 Camp. 177; Chanoine v. Fowler, 3 Wend. 173; Duncan,
J , Juniata Bank v. Hale, 16 S. & II. 157, IGO; Tuck, J., Brailsford v. Williams, 15
Md. 150, 158.

(e) Turner v. Leech, 4 B. & Aid. 451 ; Rowe v. Tipper, 13 C. B. 249.

(/) See Harrison v. Ruscoe, 15 M. & W. 231.

(//) By Lord Kenyon, at Nisi Prius, in Slmw v. Croft, Chitty on Bills, p. 333 ;
Lord /illi>iboioi(;/h, in Roshcr v. Kicran, 4 Camp. 87; Brailsford v. Williams, 16 Md.
150 ; Union Bank v. Grimshaw, 15 La. 321.

(/() Baylfj on Bills, Gth London cd. 250; Chitty on Bills, .3,33 ; Bylc,'! u:. Hills, 214;
Story, I) 301. In Harrison v. Huscoc, 15 M. & W. 231, f^lrkr, B., after (jiot'ng the

CH. Xn.] BY WHOM NOTICE SHOULD BE GIVEN. 505

notice is to inform the party to whom it is sent that he is looked
to for payment by the party wlio sends ; and inasmucb as the ac-
ceptor who refuses to pay has no ckxim upon the drawer, or on
any party to the bill, he cannot make any demand. A drawee
who refuses to accept is not a proper party to give notice ; {i) and
it is somewhat difficult to see what difference there is in the case
of an acceptor refusing to pay.

It seems also to have been licld that the maker may give no-
tice. (/) On the whole, we do not see why, if the party primarily
liable is a proper person to give notice, a mere stranger may not.
Our own method of stating the rule, independently of tliese au-
thorities, would be, that notice may be given by any party to a
note or bill, not primarily liable thereon as regards tiiird parties,
and not discharged from liability upon it at the time notice is
given.

It will not be understood that these remarks apply to an ac-
ceptor siipi'a protest, as it is within his power to give notice of
the dishonor by the original drawer, and he will have a claim
founded thereon, and on his own acceptance. (^')

The holder may of course give notice by his agent,(^) who may
give the notice in his own name,(;«) or in the name of one of the
other parties. (w) But in this last case, the party charged by the
notice will ho entitled to insist on any defence against tiie real
principal which he miglit have made against the party from whom
the notice purported to come.(o)

A person to whom a note is indorsed for the purpose of collec-

rule laid down by Judge Story with appvohation, said : " The rule equally excludes the
case of notice by an acceptor, who never could sue himself upon the bill after taking
it up ; and the instances in which a notice b}' an acceptor has been held good at Nisi
Prius are explained by Mr. Justice Bayley, on the supposition that in these the ac-
ceptor had a special authority to do so."

(i) Stanton v. Blossom, 14 Mass. 116.

(./) Glasgow V. Pratte, 8 Misso. 336.

(k) Sit/irn. p. 319.

(/) Harris v. Kobinson, 4 How. 336 ; Tunno v. Lague, 2 Johns. Cas. 1 ; Shed v.
Brett, 1 Pick. 401 ; Follain v. Dupre', 11 Hob. La. 454, 470; Walker v. Bank of Mo.,
8 Misso. 704; Crawford v. Branch Bank, 7 Ala. 205, 213. In East v. Smith, 4 Dow.
& L. 744, it was doubted by Coleridge, J. whether a tradesman's foreman or servant was
n proper party.

(m) Woodthorpe v. Lawes, 2 M. & W. 109.

(n) Rogcrson v. Hare, 1 WiHm. W. & D. 65, 1 Jur. 71 ; Harrison v. Ruscoe, 15
M. & W. 231.

(d) Harrison v. Ruscoe, 15 M. & W. 231.

\ OL. I. 43

506 NOTES AND BILLS. [CH. XIL

tion is a proper party to give notice ; (p) and so is a notary to
wliom the, note is handed to protest,(9) though the latter officer is
not obliged to give it.(r)

If the holder is dead, notice should be given by his administra-
tor or executor, if any are appointed ; (s) and if no]ie are ap-
pointed at the time of maturity, the indorser will not be dis-
charged, provided notice is sent to him within a reasonable time
after his appointment. (^) So it would be if the note or bill is
not discovered, or its existence known to the administrator at
maturity,(z*) provided the administrator is not guilty of laches
in not finding it, and forwards the notice immediately after
finding it.

It has been held that a signature is essential to a notice, be-
cause if a notice is not signed, it cannot be said to be given by
any person ; {v) but it has been also said that a notice was good
whetlier signed or not,{w) and we have also seen that it need not
state who the holder was at the time of maturity. (.^•)

It has been said that it is the duty of a notary who makes a
protest to give notice of it.{xa) But although it is usual and
convenient for the notary to give notice, and he has undoubtedly
sufficient authority to do this as the agent of the holder, it is
quite certain tliat this is no part of his official diity.{xb)

SECTION VI.

AT WHAT TLME NOTICE SHOULD BE GIVEN.

One of the most important questions under the law of notice
is. Within what time must the notice be sent ? The rule, as laid

(p) Ogden V. Dobbin, 2 Hall, 112. So it may be given by his agent. Cowp»,r
thwaite V. SbefTield, 1 Saudf. 416, 3 Comst. 243.
(l) ^'{/'■«> P- 645.
(r) Iri/m, p. 645, note /.
(s) Story on Prom. Notes, § 304.
(0 /"/'•«, p. 559.
(u) Infra, p. 559.

(») Wulkcr V. Bank of Mo., 8 Misso. 704.

{w) Ilcniliison, J., Hank of Capo Fear v. Scawell, 2 Hawks, 660.
(x) ,S'u/>r«, p. 473, note.

(xa) Cowin, J., in Halliday v. McDoagall, 20 Wcmi. <,6.
(xb) Hurke v. McKay, 2 How. 66.

CH. XII.] AT WHAT TIME NOTICE SHOULD BE GIVEN. 507

down in the earlier English cases, (//) and in some of the Ameri-
can cases,(c) was, that notice must be sent within a reasonable
time after dishonor, and that what was a reasonable time was a
question of fact for the jury. Now, however, the courts have
fixed this period so definitely as a matter of law, that it hardly
seems appropriate to speak of it as a merely reasonable time,
although this continues to some extent to be the language both
of text-writers and of judicial decisions. (a)

{//) We have already seen that originally the rule was, that a demand and protest
might be made in a reasonable time after the day a note or bill matured. In Kussel v.
Langstaffe, 2 Doug. 514, one of the notes was payable Sept. 22, two on Sept. 27, and
two on Oct. 4. The plaintiff notified the indorser on Oct. 14. Objection was made
that this Wiis not in time. The counsel for the defendant "admitted that what shall be
deemed reasonable notice to an indorser of non-payment by the drawer ought properly
to be decided by the jury, but said it was well established that such notice ought to be as
early as possible. That where the parties live at a distance, the notice ought to be given
by the first post, but that here the parties lived in the same town, and no notice had been
given till ten days after the time of payment, even in the case of the notes payable in
October." But the case turned on another point. In Hilton v. Sfiepard, 6 East, 14,
note c, Hopes v. Alder, id. 16, note, Lord Kenyon thought the question to be one for
the jury, notwithstanding the case of Tindal v. Brown, 1 T. R. 167.

(z) The early cases in Pennsylvania do not appear to be quite consistent. In Stein-
metz V. Currcy, 1 Dall. 234, 270, the court admit tliat notice must be given in a reason-
able time, but set aside a verdict for the phiintifF where there had been a delay of over
two years, holding that the war which then existed was no excuse for so long a delay, the
parties living within one hundred and fifty miles of each other. But in the following
cases the time was held a matter of fact for the jury. Robertson v. Vogle, 1 Dall. 252 ;
Bank of North America v. Vardon, 2 id. 78; Bank of North America v. M'Kiiight, id.
158, I Yeates, 145, where there was a delay of one day ; Mallory v. Kinvan, 2 Dall. 192 ;
Warder v. Carson, id. 233, 1 Yeates, 531 ; Bank of North America v. Pettit, 4 Dall.
127; Gurly v. Gettysburg Bank, 7 S. & R. 324, where there was a delay of five
days, and a verdict for the plaintiff was sustained. There seems to be a similar con-
flict in the cases in North Carolina. In Pons v. Kelly, 2 Hayw. 45, it was held that
the court are to judge of what is reasonable time. In London v. Howard, id. 332, it
was subniitterf to the jury, the judge, however, expressing to them his opinion that tea
days' delay was too much. The jury found for the defendant. In Brittain v. Johnson,
1 Dev. 293, the reasonable time was held a matter of fact, and also that the strict rules
as to negotiable paper did not apply, as between farmers in the country. In Brahan
V. Ragland, Minor, 85, the question was held to be one of fact. So Hager v. Boswell,
4 J. J. Marsh. 61.

(a) In Tindal v. Brown, 1 T. R. 167, notice was not given until two days after the note
matured The jury found for the plaintiff, and a new trial was granted. A second
verdict for the plaintiff was likewise set aside, and a third resulted in a verdict for the
defendant. This judgment was affirmed in the Exchequer Chamber, 2 T. R. 186. See
Darbishire v. Parker, 6 East, 3. In Furze v. Sharwood, 2 Q. B. 388, 415, Lord Den-
man, C. J. said : " Perhaps Lord Mansfield never conferred so great a benefit on the
commercial world as by his decision in Tindal i'. Brown, where his perseverance
compellea them, in spite of themselves, to submit to the doctrine of requiring immedi-

608 XOTES AND BILLS. [CH. XH.

It is clear that there can be no notice without a prior demand,
because notice must be based upon the fact that presentment has
been made, and payment refused. (Z>)

There appears to be some want of precision in the language of
the text-writers, and of some of the courts, in laying down the
rule as to the time within which notice must be deposited in the
post-office in order to charge the indorsers. One eminent jurist
has expressed an opinion that notice will be sufficient if mailed
at any time on the day after dishonor, although it may not be in
season to go by the mail of that day.(c) But this opinion is open
to the objection, that it would be almost necessarily giving the
holder more than the entire day after dishonor ; as, for instance,
if the only daily mail for the place where the indorser lives
should close at 8 P. M., and the holder were allowed to deposit

ate notice as a matter of law." We are aware of no modern cases in this country in
which a different doctrine is held. There may not, however, be so great a conflict be-
tween the decisions which hold the question to be one of law and those in which it
is said to be a matter of fact, or a mixed question of law and fact, as might at first
appear. The rule as now generally laid down is, that the courts have established a
definite lisuit, witliin which the plaintiff nmst prove that he sent the notice, or else must
show such circumstances as will excuse him from a strict compliance with the rule;
and this last fact must necessarily open the whole question, as it may depend on such a
variety and complication of facts that the intervention of a jury is essential to decide
the matter. In Stott v. Alexander, 1 Wash. Va. 3.31, a bill was drawn in I'hiladelphia
on London, and protested there in September. Notice was received in the latter part
of the following June. The court thought the notice was reasonable. In I'inder v.
Nathan, 4 Mart. La. 346, the question was held to be one of fact; but in Chandler v.
Sterling, 9 id. .'J65, it was held to be a mixed question of law and fact. So Spencer v.
Stirling, 10 id. 88, where there was a delay of one month, and a verdict for the plain-
tiff was sn.stained. In Haddock v. Murray, 1 N. II. 140, it was said to be a question
of fact ; but wiiere the facts were ascertained, the court should pass upon it. In Bryden
r. Bryden, 11 Joims. 187, it was said to be a mixed question of law and tact; but
where the facts were clear, it was a question for the court. Three days' delay was held
too long. In Philips v. M'Curdy, 1 Harris & J. 187, it is said that notice must be given
" in due and convenient time, of which the court are to judge." In Scarborough v. Har-
ris, 1 Bay, 177, it is said that "the holder of a bill must give reasonable notice to the
indorser, that is, by first post or convenient opportunity, which is partly a matter of
fact for jury, what is reasonable or not." In Stanton v. Blossom, 14 Mass. IIG, it is
said that notice must be given within a reasonable time. So in Aldis i;. Johnson,
1 Vt. 130, 140; but the court decided the question.

{!)) Jackson v. Richards, 2 Caines, 343, where notice was given the la5t day of grace,
and the dcinand made the succeeding day.

(c) 3 Kiiit, Com. 106, note e. In a subsequent part of this note, added in one
of the inoH! recent editions, the learned editor appears to have a(lupti'<l the stricter
view, and, as is conceived, fallen into the opposite error. See also the remarks of J(hn
ion, J., Johnson v. Ilarth, 1 Bailey, 482, 484.

CH. XII.] AT WHAT TIME NOTICE SHOULD BE GIVEN. 509

the notice in the office at 9 P. M., the effect of this wouhl lie to
allow the holder two days ; for the notice might as well be per-
mitted to remain in his desk as to lie in the post-office till the
mail for the next day should close. This seems to be a greater
relaxation than is consistent with all the leading authorities.

Another suggestion has been made by a distinguished judge
and writer, (c/) which is, that the holder should be required to send
the notice by the first mail which starts after twenty-four hours
from the time of actual dishonor. But the great objection to this
view is, that it would render an inquiry into the exact time of
presentment necessary, which would clearly be inconvenient and
uncertain.

It has also been said that notice should be sent by the next
mail after dishonor,((?) or by the next practicable mail.(/) This
is incorrect, because it might render it necessary to mail the no
tice on the very day of dishonor, and the cases are clear and de-
cisive on the point that notice need in no case be sent on thai
day.(^^) Thus, in one case, where notice was received at 9 A. M.,
and the mail left at 6 P. M., it was held that notice need not be
forwarded that day, although the next subsequent mail did not
leave until the second day thereafter. (A)

{d) Story on Bills, § 290, note. Judge Story simply puts this by way of sugges-
tion. In § 288 the rule is stated with accuracy. See also Prom. Notes, ^ 324.

(e) Tindal v. Brown, IT. R. 167 ; Darbishire v. Parker, 6 East, 3, 9; Hubbard v.
Troy, 2 Ired. 134 ; Denny v. Palmer, .5 id. 610; Whittlesey v. Dean, 2 Aikens, 263;
Curry v. Bank of Mobile, 8 Port. Ala. 360 ; Hickman v. Ryan, 5 Littell, 24.

(/) Mitchell V. Degrand, 1 Mason, 176 ; U. S. v. Barker, 4 Wash. C. 0. 464 ; Mead
V. Engs, 5 Cowen, 303 ; Dodge v. Bank of Ky., 2 A. K. Marsh. 610, 616

(g) Hartford Bank v. Stedman, 3 Conn 489; Whitwell y. Johnson, 17 Mass. 449 ;
Housatonic Bank v. Laflin, 5 Cash. .546 ; Howard v. Ives, 1 Hill, 263 ; Bank of U. S.
V. Merle, 2 Rob. La. 117; Downs v. Planters' Bank, 1 Smedes & M 261 ; Deminds v.
Kirkman, id. 644. The rule is the same where the parties live in the same place.
Pearson v. Duckham, 3 Litt. 385 ; Noble i'. Bank of Kentucky, 3 A. K. Marsh. 262.
The dictum of Parker, C. J., in Woodbridge v. Brigham, 12 Mass. 403, 404, to the con-
trary, is overruled by Grand Bank v. Blanchard, 23 Pick. 305, where an indorscr who
was notified on the day after dishonor was held, although it had been the usual course
of the bank which sent the notice to notify the parties living in the same town on the
last dav of grace. There is also a dictum of Hatchins, J., in Nash v. Harrington, 2
Aikens, 9, to the same effect. See Whittlesey i\ Dean, id. 263.

(h) Geill V. Jeremy, Moody & M. 61. It will be seen subsequently, that in general
any party who receives a notice is entitled to as much time in which to forward it to
the itUorser whom he wishes to charge, as the holder at the time of dishonor. In Bank
of Alexandria v. Swann, 9 Pet. 33, demand was made at 3 P. M. The mail closed
at half past 8 P. M. Objection that the notice should have been forwarded thereby was
43*

510 NOTES AND BILLS. [CH. XH.

It is said in some cases that the notice should be sent by the
first mail of the next day after dishonor ; (i) but the authorities
in which it was necessary to decide the point hold that it may be
sent by any mail of that day. Thus, where one mail leaves in
the morning and another in the evening, the holder has tlie right
to elect which one he will use by which to transmit the notice. (y)

In many cases it is said that notice should be sent by the mail
of the next day after dishonor ; [k) but most of these were cases

overruled. So Mead v. Engs, 5 Cowen, 303, where the notice was received in the
morning, and the mail left at 1 P. M. ; Howard v. Ives, 1 Hill, 263, where the mail
closed at 5 P. M. See also the cases cited infra, p. 511, note /, p. 512, note o.

((') Dickius V. Beal, 10 Pet. 572, 581 ; Bank of U. S. v. Merle, 2 Rob. La. 117;
Townsley v. Springer, 1 La. 122. Sec Brown v. Turner, 11 Ala. 752.

(_;■) Goodman v. Norton, 17 Maine, 381 ; Howard v. Ives, 1 Hill, 263 ; Whitwell v.
Johnson, 17 Mass. 449. See Housatonic Bank v. Laflin, 5 Cush. 546, where it is said
that this is true, however late the last mail might start.

(h) In Lenox v. Roberts, 2 Wheat. 373, Marshall, C. J. said : "It is the opinion of
the court that notice of the default of the maker sliould be put into tiie post-office early
enough to be sent by the mail of the succeeding day." So also U. S. v. Barker, 4 Wash.
C. C. 464, 12 Wheat. 559, where the notice was received on one day, and not forwarded
by the only mail of the next day, which left at half past 10 A. M. The court held tliat
the indorser was discharged. In Fullerton r. Bank of U. S., 1 Pet. 604, the judge
charged the jury that " notice should have been given to the indorser through the
medium of tiie post-office, the day after tlie last day of grace, in season to go by the
sucecding mail." Held correct, as the word " succeeding " must be taken to apply
to the words " last day of grace," and not " the day after the last day." Johnson, J.
said : " With this signification, it was rather more favorable than need be given, since
the mail of the next day may have gone out before early business hours, or no mail
may have gone out for several days." In tlic following cases it is laid down that notice
should be sent by the next daj^'s mail. Williams v. Smith, 2 B. & Aid. 496 ; Wright
V. Sliawcross, id. 501, note ; Housatonic Bank v. Laflin, 5 Cush. 546 ; Talbot v. Clark,
8 Pick. 51 ; Whitwell v. Johnson, 17 Mass. 449 ; Brown i; Ferguson, 4 Leigh, 37 ;
Manchester Bank r. White, 10 Foster, 456 ; Manchester Bank v. Fellows, 8 id. 302.
In Chick v. Pillsbury, 24 Maine, 458, Sheplcy, J., in a dissenting opinion, maintained
that tlie notice must be sent, at all events, l)y the mail of tiie day succeeding di.^honor,
however early it may start. The cases of Goodman v. Norton, 17 Maine, 381, Beck-
with V. Smith, 22 id. 125, are cited as sustaining ids oi)inion, but they do not seem to bo
decisions on the point ; or if they are to i)e so considered, they arc overruled by Chick
V. Pillsbury, 24 Maine, 458. The objections whicli Mr. Justice Sliepley makes to the
opinion of the majority of tiic court are, that that doctrine will introduce too great
uncertainty into the law, that this view maintained by him would be certain and uni-
form. There is no doubt that it would. But then the more lax rule, as stated by
Chancellor Kent, supra, p. 508, note c, would certainly bo as " uniform, certain, and
easy of apprehension." Thcie is an objection to that rule, as already stated, it is
true. But tlicre is a like objection to the more strict one, which wo state in our t».xt
And if it should be necessary to choose between one or the other, wo apprehend that it
would be more reasonable to adopt the former. Bu^ modern decisions, as we shall sec,
take a middle ground between them.

CH. XII.] AT WHAT TIME NOTICE SHOULD BE GIVEN. 511

•which hold that a notice so sent is sufficient, which is undoubt-
edly true, else the court only intended to state the general rule
without tiie qualifications. It is obvious that, if there is no
mail the next day, the notice cannot be sent by such a mail ;
and if by this rule is meant tliat notice must be sent at any
rate by a mail of that day, we should say that it is incorrect.
So, if the only mail which leaves on the day after dishonor
should close at 2 A. M., and leave at half past three, our
opinion is that notice need not be sent by tliat mail, but may
be forwarded by that of the next day. The most recent au-
thorities in which it has been necessary to pass directly upon
this point have so decided, and the rule, and, as we think, the
correct one, is affirmed to be, that the holder is bound to for-
ward the notice as early as by a mail of the day after dishonor
which does not start at an unreasonably early hour ; (/) and if
there is no mail which leaves on that day after a reasonably early
hour, the notice is to be forwarded by the next mail whicli starts

(t) See the remarks of Johnson, J., cited supra, p. 510, note /■:. In Carter v. Burley, 9
N. H. 558, 570, ParIcer,C. J., after an able review of the authorities, and layinj^^down the
general rule that notice must be sent as early as by the mail of the day following dis-
honor, said : '' This rule, however, must be qualified so far that, if the party receiving
the notice cannot, by the exercise of reasonable diligence, forward notice to a prior
party by the mail of the day following, it will be sufficient if sent by the next. In this
country, where many of the mails go out at an early hour of the morning, and are
sometimes closed at an early hour of the evening before, it would be impracticable in
some instances, and nearly so in many more, to prepare and forward a notice by the
mail of the next day, where notice was received late in the afternoon, or in the even-
ing." In Sussex Bank v. Baldwin, 2 Harrison, 487, the judge charged the jury that
it was sufficient if the holder put the notice in the post-office on the day after he re-
ceived it. Held incorrect, and the rule was declared to be, that '•' the notice must be
sent on the day next after the third day of grace, unless the mail of that day go out at
so earh an hour as to render it impracticable by the exercise of a reasonable diligence."
So Chick V. Pillsbury, 24 Maine, 458, Sheplei/, J. dissenting ; Mitchell v. Cross, 2 R. I.
437 ; Stephenson v. Dickson, 24 Penn. State, 148; Burgess v. Vreeland, 4 N. J. 71 ;
Lawson v. Farmers' Bank, 1 Ohio State, 206 ; West v. Brown, 6 id. 542 ; Downs v.
Planters' Bank, 1 Smedcs & M. 261 ; Deminds v. Kirkman, id. 644; Hoopes y. New-
man, 2 id. 71 ; Fortner r. Parham, id. 151 ; Wemple v. Dangcrfield, id. 445 ; Davis v.
Hanly, 7 Eng. Ark. 645. See Moore v. Burr, 14 Ark. 230. In Farmers' Bank v.
Duvall, 7 Gill & J. 78, the bill was dishonored on April 22d. The mail closed on that
day at 9 P. M., six hoars after the dishonor, and left the next morning at sunrise. The
next subsequent mail closed at 9 P. M. on the 24th, .ind left at sunrise on the 25th.
Held, that a notice might be forwarded by this mail. In Wemple ?'. Dangerfield, 2
Sraedes & M. 445, the mail closed at 9 P. M. on the day of dishonor, and left at 4 A. M.
jf the next day. The mail for the place where the indorser lived left only three times
a week. Held, that notice need not be sent by that mail.

512 NOTES AND BILLS. [CH. XIL

thereafter. (;;/) With respect to what is not a reasonably early
hour no precise rule can be laid down, except that, in general,
tlie limit must be defined by business hours, which depend upon
the particular habits of the mercantile community in each
place, (w) and from this fact arises much of the discrepancy
which we find in the cases upon the point. (o)

(m) Parker, C. J., supra, note/. See Chick v. Pillsbury, 24 Maine, 458; Lawson
V. Farmers' Bank, 1 Ohio State, 206; Downs v Planters' Bank, 1 Smedes & M. 261 ;
Wemple v. Dangerfield, 2 id. 445, supra, note / ; Farmers' Bank i*. Duvall, 7 Gill & J.
78, supra, note /. In Davis v. Hanly, 7 Eng. Ark. 645, where the mail went out at an
unreasonably early hour of the day after the notice was received, the court held it un-
necessary to send the notice by that mail, although the next mail does not appear to
have started until a week from that time.

(«) Sussex Bank v. Baldwin, 2 Harrison, 487, 494 ; Mitchell v. Cross, 2 R. I. 437.

(o) In Hawkes v. Salter, 4 Bing. 715, 1 Moore & P. 750, the bill was dishonored on
Saturday. The mail left at half past 9 A. M. An opinion was expressed, though it
was not actually decided, that it was sufficient to forward the notice by that mail ou
Tuesday. It will be seen that Sunday is not counted in such cases. This case has
been cited and considered as supporting the opinion of Chancellor Kent, supra, p. 508,
note c ; but it would not seem to do so. The court did not lay down any rule, but
simply stated that the notice might be sent by Tuesday morning's mail. We should
prefer to consider this as authority for saying that notice need not have been forwarded
by the mail on Monday morning, because it closed before business hours commenced
in the place where the bill was presented. It will be remarked, that the case states
that the mail left at half past 9. It might have closed at an hour or two earlier, so that
is would have been necessary to deposit the notice in the office as early as 8 A. M., in
order to have it transmitted on that day. In Mitchell v. Cross, 2 R. I., 3 A. M. was
said to be unreasonably early. 4 A. M. is too early. See Wemple v. Dangerfield, 2
Smedes & M. 445, supra, p. 511, note /. When the mail closes at 5 A. M., and there
is no mail until the second day after, notice may be sent by the latter. West v. Brown,
6 Ohio State, 542. The hour of sunrise is too early. Dcminds v. Kirkman, 1 Smedes

6 M. 644. In this case the mail left at that time. See also Farmers' Bank v. Duvall,

7 Gill & J. 78, supra, p 511, note /. In Chick v. Pillsbury, 24 Maine, 458, the mail
closed at 6 A. M. and left at 7. Held, that notice need not be sent by it. So Davis
V. Manly, 7 Fing. Ark. 645, where the next subsequent mail left a week thereafter. In
Stepiienson v. Dickson, 24 Penn. State, 148, an opinion was expressed that 7 A. M. was
not an unreasonably early hour. But in Commercial Bank v. King, 3 Rob. La. 243,
proof that notice was put into the post-office at 7 A M. was held sufficient, as the pre-
sumption was that it was in time to go by a mail of that day. In Downs v. Planters'
Bank, 1 Smedes &, M. 261, proof that notice was dejwsitcd in the post-office at 9 A. M.,
without proof that the mail closed earlier, was held insufficient. So Beckwith v. Smith,
22 Maine, 125. In Lawson v. Farmers' Bank, 1 Ohio State, 206, closing the mail at 10
miimtes |)ast 9 A. M. was held not to be unreasonably early. And the imlorser was dis-
charged, becau.se notice was not sent by it. The mail in this case left at 10 A. M. But
in Burgess v. Vrecland, 4 N.J. 71, an opinion was expressed, that where the mail closes
at half past 9 A. M. it is too early, and the holiler is not bound to send the notice by
it. In this case it was held that proof that notice was put into the jmst-oflice nt 12 M.
on the day after dishonor, without evidence that there was no mail which closed beforo
that hour, was insufficieut. If the mail closes at half past 10 A. M., notice should be

en. XII.] AT WHAT TIME NOTICE SHOULD BE GIVEN. 51S

In England it has been held, that, if the parties live in the same
town, — and it is said that this means, especially as to London,
within the limits of the penny-post, — notice mnst be given ii.
such season that it will be received, in dne course of delivery,
on some part of the next day.(7>)

Each party bound to give notice has the same time, after he
receives the notice, within which to transmit it to the party to
whom he wishes to \ook,{q) that the holder has ; so that, in ac-
cordance with what we have already seen, if a party receives the
notice from a subsequent party on one day, he is not bound to
transmit it to a prior indorser until the next day, and not then,
if the mail leaves before business hours. Thus, if a note falls
due and is dishonored on Monday, and there are four indorsers,
A, B, C, and D, the holder may give notice on Tuesday to D.
D, receiving the notice on Tuesday, is not bound to mail it until
Wednesday, and if C receives it by due course of mail on Thurs-
day, he is not l)ound to forward it to B until Friday, and B miay
then notify A on the day after B receives it. If all these notices
were thus regularly given, the owner would hold all the in-
dorsers, although he had notified but one, and though the first
indorser had not received the notice until five days after dis-
honor, and each indorser would hold all who were regularly
notified, whether by him or by other parties. But the owner

sent by it. Sec U. S. v. Barker, 4 Wash. C. C. 464. In Seventh Ward Bank v. Han-
rick, 2 Story, 416, the mail closed at half past 3 P. M. Held, that the plaintiff must
prove that he deposited the notice in the office in season to go by that mail.

(p) In Smith v. Mullett, 2 Camp. 208, the plaintiff received notice on May 20th, and
transmitted it to the defendant the next day, but so late that it was not delivered by the
penny-post until the 22d. The defendant was discharged. Lord Ellenhorowjh said,
that the notice might as well have remained in the plaintiff's writing-desk as in the
post-office on the night of the 21st, and that consequently the plaintiff was guilty of
laches. See Hilton v. Fairclough, 2 Camp. 633. In Dobree v. Eastwood, 3 Car. & P.
250, the notice was deposited between 5 and 6 P. M. The judge charged the jury, that,
if it was deposited in season to be delivered by the penny-post of that day, the indorser
would be held ; otherwise, not. Verdict for the defendant. The burden is on the plain-
tiff to prove that he put the notice in the office in season to be received on that day.
Fowler ». Hendon, 4 Tyrw. 1002. The postmark is not conclusive as to the time.
Stocken v. Collin, 7 M. & W. 515, where the general rule is also laid down.

(q) Farmer v. Rand, 16 Maine, 453; Carters. Burley, 9 N. H. 558; Manchester
Bank v. Fellows, 8 Foster, 302 ; Manchester Bank v. White, 10 id. 456 j Sussex Bank
V. Baldwin, 2 Harrison, 487 ; Lawson v. Fanners' Bank, 1 Ohio State, 206 ; Smith r.
Roach, 7 B. Mon. 17 ; Triplett v. Hunt, 3 Dana, 126 ; Whitman v. Farmers' Bank, 8
Port. Ala. 258.

V»L. I.— 2 H •

514 NOTES AND BILLS. [CH. XH

would hold none but those regularly notified, and thus he runs
the risk of losing his claim against some of the parties by the
negligence or indifference of others.

He may choose to make this sure, and this he may do by noti-
fying all the parties himself. But he has only his own day within
which to do this, and not the day of the others ; and he must
therefore issue all his notices on tlie day after that of dishonor,
unless tliere is no n^ail that day, or none that leaves or closes
after business hours.

So it is with the other parties ; each lias his own time, and
only that.(r) Thus, in the case above supposed, A is held, pro-
vided all the intermediate notices were duly given. But if lie
was notified personally only on Thursday by D, who received the
notice on Tuesday, and should have sent it on Wednesday, A is
not liable to any one. D is liable to the holder ; but if the latter
sues A on the ground that he was notified two days sooner than
it was necessary that he should be, and earlier than he would
have been had D notified C, and C B, and B A, a sufficient
answer is, that this delay was the right of the others, and not the
right of D.

If one party gives notice earlier than he is obliged to, this will
not lengthen the time of any other party ; or, in other words, the
over diligence of one party is no excuse for the under diligence
of another. (5) An agent, to whom a note or bill is indorsed for
collection, has the same time within which to notify his principal,
and the principal the prior parties, as if the agent were the real
owner, (i)

(r) Rowe v. Tipper, 13 C. B. 249, where the third indorser notified the second oa
the next business day after dishonor, and the first on the day subsequent to that. The
second indorser gave no notice. Held that the first was not liable to the third. See
Dobrce v. Eastwood, 3 Car. & P. 2.50; Simpson v. Turncy, 5 Humph. 419.

(s) Turner v. Leech, 4 B. & Aid. 451 ; Smith v. Mullctt, 2 Camp. 208 ; Carter t>.
Burley, 9 N. H. 558 ; Manchester Bank v. Fellows, 8 Foster, 302 ; Farmer v. Rand,
16 Maine, 453 ; Brown v. Ferguson, 4 Leigh, 37 ; Etting v. Schuylkill Bank, 2 Penn.
State, 35.5.

(t) Bray v. Iladwen, 5 M. & S. 68 ; Daly v. Slater, 4 Car. & P. 200 ; Robson v.
Bennett, 2 Taunt. 388 ; Langdale v. Trimmer, 15 East, 291 ; Firth v. Thrush, 8 B.
& C. 387; Scott v. Liflford, 9 East, 347, 1 Camp. 246 ; Hayncs v. Birks, 2 15os. & P.
599; Ogden v. Dobbin, 2 Hall, 112 ; Bank of the United States i;. Davis, 2 Hill, 451 ;
Crocker v. Getchcll, 23 Maine, 392 ; Su.ssex Bank v. Baldwin, 2 Harrison, 487 ; Fos-
ter V. McDonald, 3 Ala. 34 ; Gindrat ». Mechanics' Bank of Augusta, 7 id. 324 ; Hill
r. Planters' Bank, 3 Humph. 670 ; Grand Gulf R. & B. Co. v. Barnes, 1^ Rcb. La.

en. XII.] AT WHAT TIME NOTICE SHOULD BE GIVEN. 516

No one is required to give notice on Sunday,(w) or any well-
established holiday. (v) If such day intervenes, it is not counted,
but adds one more day of allowalile delay. Thus, if a notice is
received on Saturday, it need not be forwarded until by some
mail on Monday, leaving or closing after business hours com-
mence, or if there be no mail, by the next one ; and this is so
even if there is a Sunday mail.(?*y)

It has been held, that, although notice is received on Sunday,
the party receiving is not obliged to transmit it before Tuesday,
because he is not bound to open the letter on Sunday, and it is
to be considered as received on Monday. (.^) It has also been
held that a party may if he pleases forward a notice on a lioli-
day.(y/)

Although a notice need not be forwarded before the day after
dishonor, or its reception, still there is no reason why it may not
be transmitted on that very day, after due presentment and
demand. (c) In some States, as we have seen, suit may be

127 ; Colt i;. Noble, 5 Mass. 167 ; Church v. Barlow, 9 Pick. 547 ; Bank of the United
States V. Goddard, 5 Mason, 366. See Talbot v. Clark, 8 Pick. 51. The same rule
applies to the several branch banks of the same establishment. Clode v. Bayley, 12
M. & W. 51.

(«) Haynes v. Bii-ks, 3 Bos. & P. 559 ; Jameson v. Swinton, 2 Camp. 373, 2 Taunt
224 ; Poole v. Dicas, 1 Bing. N. C 649 ; Jackson v. Richards, 2 Caines, 343 ; "Wil-
liams V. Matthews, 3 Cowen, 252 ; Eagle Bank v. Chapin, 3 Pick. 180 ; Seventh "Ward
Bank ;;. Hanrick, 2 Story, 416; Agnew o. Bank of Gettysburg, 2 Harris & G. 478 ;
Burckmyer v. "Whiteford, 6 Gill, 1. See Triplett v. Hunt, 3 Dana, 126; Etting v.
Schuylkill Bank, 2 Penn. State, 355 ; Jones v. Wardell, 6 "Watts & S. 399.

(v) Cuyler v. Stevens, 4 Wend. 566, where the third day of grace was July 4th. In
Lindo V. Unsworth, 2 Camp. 602, the bill was dishonored on Saturday. Monday was
a Jewish festival. The plaintiff, a Jew, gave notice to the indorser on Tuesday, and
the latter was charged. See also Martin v. Ingersoll, 8 Pick. 1.

(iv) Howard v. Ives, 1 Hill, 263, where the mail closed Saturday at 3 P. M. There
were two mails on Sunday and two on Monday, one of which closed early in the
morning and the other in the afternoon. Notice sent by the last mail was held suf-
ficient.

(x) Wright V. Shawcross, 2 B. «& Aid. 501, note. See Bray v. Had wen, 5 Maule &
S. 68 ; Deblieux v. Bullard, 1 Hob. La. 66.

(y) Debilicux v. Bullard, 1 Rob. La. 66, where it was given on the 4th of July ; Mar-
tin, J. said it might be given on Sunday.

(z) Bussard v. Levering, 6 Wheat. 102, where the notice was given on Saturday,
Sunday being the third day of grace ; Lindenberger v. Beall, id. 104 ; Corp v. M'Comb,
1 Johns. Cas. 328; Thorpe v. Peck, 28 Vt. 127, where the note was payable at a bank,
dnd notice was given before the close of banking hours ; Smith v. Little, 10 N. H. 526 ;
Manchester Bank v. Fellows, 8 Foster, 302 ; Coleman v. Carpenter, 9 Penn. State, 178 ;
Lawson v. Farmers' Bank, 1 Ohio State, 206; Haslett v. Ehrick, 1 Nott & McC. 116,
where the maker was notified bv the bank where the note was, that it was in 'jhcif

516 NOTES AND BILLS. [CH. XEL

comnienced on the day of dishonor ; but in such case it is neces-
sary to send the notice to, or to notify the party to be charged,
before the commencement of the action. (a) But there are de-
cisions to the effect that no suit can be commenced on that day,
and some that it cannot be brought before the time when it may
be supposed that, by the regular course of the mail, the party to
be charged has received the notice. (Z>)

If notice is given too soon, it is of no avail. Li Massachusetts
it is held, that where a note is neither payable at a bank nor put
in a bank for collection, notice to the indorser immediately after
the close of bank hours, no demand having been made on the
maker, is invalid. (c)

The burden of proving due notice is upon the plaintiff,(c?)
whose duty it is to give it in a way capable of proof. It should
also be proved distinctly. Thus, if the witness says the notice
was sent in two or three days, and two are enough, but three
not, and there is nothing to define this testimony, it will not be
sufficient evidence to find a verdict for the plaintiff, (e)

It has been held to be sufficient for any indorser to show that
the indorser whom he wishes to hold received the notice as soon
as he would have received it had all the subsequent indorsers
used the period of time to which they are severally entitled, and

hands, and requesting him to "please have it settled by 9 o'clock to-monow, and
prevent its being returned for protest." After business hours the notice was sent to
the indorser, the note being still unpaid, and the indorser was held. Curry v. Bank of
Mobile, 8 Port. Ala. 360 ; Crenshaw ?;. M'Kiernan, Minor, 295 ; McClanc v. Fitch, 4 B.
Mon. 599. Sec Stivers v. Prentice, .3 id. 461 ; Burbridge v. Manners, 3 Camp. 193 ; Ex
parte Moline, 19 Ves. 216, 1 Rose, 303; Hartley v. Case, 1 Car. & P. 555, 4 B. & C.
339 ; Lord Ak-anlci/, C. J., Haynes v. Birks, 3 Bos. & P. 599, 602 ; Bnijley, J., Cocks
V. Masterman, 9 B. & C. 902, 909. In Leftley v. Mills, 4 T. R. 170, Lord Keiii/on ex-
pressed an opinion that the maker or .ncceptor could not be considered in default
until the next day, leaving the whole of the last day to pay in ; but Duller, J. expressed
an opinion to the contrary.

(o) Siipt-a, p. 411.

(i) Supra, p. 411.

(d) In Halscy v. Salmon, Penning. 667, the demand was set out in the declaration,
and the, fact that the defendant had notice thereof, but did not state any time. Held
iiisuflicient. In Sussex Bank v. Baldwin, 2 Harrison, 487, the plaintiff's witness testified
that he mailed the notice, but could not tell when. Held insufficient evidence to provo
notice. Su Warren v. Oilman, 15 Maine, 70; Lockwood v. Crawford, 18 Conn. 361,
where the only evidence was the fact that the holder, being an inmate of the defendant's
family, informed him of the dishonor.

(e) Lawson r. Shiffncr, 1 Stark. 314.

CH. Xir.] AT WHAT TIME NOTICE SHOULD BE GIVEN. 517

taking into consideration the time necessarily occupied by the
usual course of the mail between their respective places of busi-
ness or of residence, (/) and that it will then be open to tlio
defendant to prove that any of these parties delayed trans-

{/) In Marsh v. Maxwell, 2 Camp. 210, note, "Lord EUenborough ruled, that, upon
the dishonor of a hill, it is enough that the drawer or indorser receives notice in as many
days as there are subsequent indorsers, unless it is shown that each indorser gave notice
within a day after receiving it ; as if any one has been beyond the day, the drawer and
prior indorsers are discharged." In Ettiug v. Schuylkill Bank, 2 Penn. Slate, 355, the
third indorser sued the second. The first three indorsers lived in Philadelphia, the
fourth in New York, the fifth in Newark, N. J. The place of payment was Elizabeth-
town. The note was due Oct. 4th. Oct. 6th was Sunday. The defendant received
notice Oct. 8th. This is all the evidence reported. The court said that the notice was
in sufficient time, though the case turned upon another point. Gibson, C. J said :
" The general rule is, that when notice is given by the holder directly, it is soon
enough if it reach the particular indorser as soon as it would have readied him circui-
tously through the subsequent indorsers, each of whom are entitled to an entire day, if
he cliosc to insist on it, to hand it on ; the only limitation to which is stated in Marsh

V. Maxwell, 2 Camp. 210, note, by Lord EUenborough In other words, that there

shall not be a longer link in the chain than the space of a single day ; and that the liolder
shall not afi^ect the indorser with notice after he has been discharged from liability to tiie
subsequent indorsers. In this case there was no evidence of circuitous notice, and a
day was properly allowed for each intervening party." In Jones v. Wardell, 6 Watts
& S. .399, the drawer lived in Philadelphia, and the payee and first indorser in New
York. The second indorser was the Bank of Syracuse, by which the bill was indorsed
to the Bank of Rochester, which was the place of payment. The bill was protested
December 2Sth. On January 3d the notice was mailed to Philadelphia, where it arrived
on January 4th. Sunday intervened. This is all the evidence reported on this point,
and the court held that the evidence was sufficient to sustain a verdict in favor of the
first indorser against the drawer. Rogers, J. said : " By whom, or in what manner, or
to whom it was transmitted to the city of New York, or by whom it was mailed to Phil-
adelphia, does not appear. The sup])Osition is, that the business was transacted in the
usual course ; thac is to say, that the notice of protest was sent to the SjTacusc Bank,
by them to the payee in New York, by whom it was sent by mail to the drawer, who
resides in Philadelphia. The Bank of Rochester, to whom it was sent for collection,
in the absence of all information to the contrary, had a right to suppose that the parlies
to the bill lived in New York ; it would, therefore, be unreasonable to require that the
notice should be sent direct to the drawer, and this explains the reason of the direction
which the notice took. As a matter of law, therefore, we incline to the opinion that
this was a reasonable notice of the dishonor of the bill ; for, allowing one day to each
of the parties to the bill, and one day for Sunday, which was an intervening day,
greater diligence could not reasonably be required, when it is remembered that Roch-
ester is four hundred miles from New York, and consequently five hundred from
Philadelphia, where the drawer resided." One difficulty in the above cases is the
want of evidence as to the course of the mails and the time necessarily occupied in
tJicir transmission from one place to another; or, in other words, it may perhaps be
objected, that the court cannot judicially take cognizance of the time thus occupied,
without any proof. Thus, in Carter v. Burley, 9 N. H. 558, a suit by the second in-
dorser against the first, the third indorser lived in New York, the second in Boston, and

VOL. I. 44

518 NOTES AND BILLS. [CH. XH.

mitting the notice beyond the time the law allows, which will,
in accordance with the rules already laid down, be a good
defence. ("■)

We think tiiat evidence should be adduced by the plaintiff to
show the time occupied by the mail between the places, as it is
difficult to see how the court can take judicial cognizance of it.
Perhaps the proposition should be further qualified by requiring
the plaintiff to prove that he transmitted the notice to his prior
indorser, or to the one whom he wished to hold, within the
requisite time, thus clearing himself at least of all imputation of
neglect or laches. (A)

This question may also be important with reference to the
point whether notice was put into the post-oftice in season to go
by the mail of the next day after dishonor, or the reception of
the notice. It would seem to follow, from the cases which we
have already cited, (i) that it will be sufficient to prove that the
notice was in each case deposited before business hours of the
next day, because the plaintiff would by this show that he had
done all that was required of him.(j) But if the only evidence
was, that it was deposited after business hours of that day com-
menced, then it would seem necessary at least to show that there
was no mail between the commencement of business hours and
the time of depositing the notice in the office. (A;) We have

the third in New Hampshire. The note was protested in Philadelphia, October 4th.
The agent of the third indorser received on October 8th or 9ili a notice from liis prin-
cipal, dated October 6th, and notified the jjlaintitT the same day, who also notified the
defendant on that day. A verdict for the plaintiff was set aside. Parker, C. J. said :
" There is no evidence in this case of the course of the mails, Tior does it appear
whether there was a party at Philadelphia, nor at what time or in what manner notice
was sent from that place, nor when it was received by Hutchinson in New York.
The objection on this part of the case is well taken, and for this reason the case must
be sent to a new trial." This case does not appear to conflict with the proposition in
the text. It proceeded mainly upon the ground that there was no evidence as to the
time occupied by the mails, a fact of which the court could not take judicial cogni-
zance. There was also a greater length of time than could be reasonably accounted
for between the day of protest and October 9th.

(7) Supra, p. 000.

(/i) Hut this does not seem to have been adverted to in the cases cited supra, p. 516,
note /; although in both cases it appeared that the plaintifl^s transmitted their notices
within tlicir time.

((') Sufira, p. 511, note /.

(7) Sic (lonimcrcial RaTik v. King, .*) Rob. La. 24.1, supra, p. 512, note o.

{k) Seventh Ward Hank v. Ilanrick, 2 Story, 416 ; Hurgcss v. Vreeland, 4 N. J. 71 ;
Downs V. riantcrs' Bank, 1 Smcdes & M. 261 ; Heckwith v. Smith, 22 Main\ 125.

CII. XII.] AT WHAT TIME NOTICE SHOULD BE GIVEN. -^49

already seeii,(/) that, in order to charge an iiidorscr of a iiotG
payable on demand, presentment must be made within a reason-
able time. But if, after such presentment, the note is dishon-
ored, there is no good reason why the same rules as to the time
within which notice is to be forwarded to the indorser should not
apply, as in the case of other notes and bills, (m)

We have also seen (n) that a note or bill in which no time of
payment is specified is to be considered as payaV)lc on demand.
We should say in this case also that notice should be given
within the same time as in other cases. (o)

It has already been remarked, (/>) that a note indorsed when
overdue is by the best authorities considered equivalent to a note
or bill on demand, though some cases hold that the same strict
rules are not to be applied. It has been said that the holder has
a reasonable time after presentment within which to notify the
indorser, and that this reasonable time may be so long as two
months, ((^) and an opinion has been expressed that no notice at
all is necessary. (r) To maintain these views would seem to be

For the facts of these cases, see supra, p. 512, note o. In Moore v. Burr, 14 Ark. 230,
the notary's deposition stated that the notice was deposited in the post-office on the next
business day after dishonor, " in time to go by the first mail thereafter." Held insufficient
to char<ie tiie defendant, because tliere was no proof that it was deposited in time to go
by the first convenient mail, if any, of that day.

(/) Supra, p. 263, et sec/.

(m) In Field v. Nicker.<on, 13 Mass. 131, part of the instruction of the judge at Nisi
Prius was, tliat " immediate notice" was requisite. Held correct. No objection to the
char<|e on this point appears to have been laised by counsel or adverted to by the court.
In Seaver v. Lincoln, 21 Pick 267, S/uiw, C. J. said: "Demand being made on the
makers at Fall River, notice to the indorser, at the distance of twenty-four miles, on the
succeeding day, was within due time." It is laid down in the following cases that the
same rule applies as to giving notice. Lord v. Chadbourne, 8 Greenl. 198; Perry v.
Green, 4 Harrison, 61 ; Lockwood v. Crawford, 18 Conn. 361. In Nash v. Harring-
ton, 2 Aikens, 9, Hutchinson, J. said, that the notice ought to have been given the day
of the demand, the parties living near each other, in the same village.

{«) Supra, p. 381.

(o) Brenzer v. Wightman, 7 Watts & S. 264.

(p) Sujmi, p. 381.

(q) Suimje, C. J., Van Hoescn v. Van Alstyne, 3 Wend. 75. This opinion is com-
mented upon, and its correctness denied, by Church, C J., in Lockwood v. Crawford,
18 Conn. 361.

(r) GNeall, J., Gray v. Bell. 3 Kich. 71, supra, p. 381, note j. Sec Bank of Nortli
America v. Barriere, 1 Yeates, 360. In the following cases it is said that the same
Btrict rules as to notice do not apply. Duncan, J., M'Kinney v. Crawford, 8 S. &
11. 351 ; Hall v. Smith, 1 Bay, 330 ; Rugely v. Davidson, 4 Const. R. 33 ; Brock
r. Thompson, 1 Bailey, 322, where three demands appear to have been made, and

520 NOTES AND BILLS. [CH. XIL

introducing unnecessary distinctions, and in our opinion the
notice sliould be transmitted as soon in the case of such notes
and. bills as of any others. (s)

If the analogy between notes and bills on demand, and those
indorsed when overdue, and notes and bills payable at sight, is to
be carried out, the same notice of dishonor would certainly be
requisite, for no distinction that we are aware of has ever been
attempted to be drawn between the time necessary in forwarding
notice to an indorser of a bill at sight, and one in which there is
a fixed time for payment.

notice given only of the last. A verdict for the plaintiff was sustained. In Chad-
wick V. Jeffcrs, 1 Rich. 397, it is said that the duty of the holder as to notice, in such
cases, is limited to the use of such diligence that the indorser suffers no injury
through his neglect. Knowledge by the indorser that the maker was sued, at or imme-
diately after the commencement of the action, was held sufficient notice, in Benton v.
Gibson, 1 Hill, S. Car. 56; Chadwick v. Jeffors, 1 Rich. 397 ; Gray r. Boll, 3 id 71,
2 id. 67. In the last case the writs were served simultaneously, and it was contended
that there could be no such knowledge. But the court held the evidence sufficient to
sustain a verdict for the plaintiff

(s) It is said, in the following cases, that the same rules applied. Berry v. Robinson,
9 Johns. 121 ; Bishop v. Dexter, 2 Conn. 419 ; Ecfert v. Des Coudrcs, 3 Const. R. 69 ;
Course v. Shackleford, 2 Nott & McC. 283. In these cases there had been neither de-
mand nor notice. In Poole v. ToUeson, 1 McCord, 199, there had been a demand, but
no notice, and the indorser was discharged. Richardson, J. expressly said, that imme-
diate notice should have been given, as in any other case. See his remarks, cited
supra, p. 382, note m. In Rice v. Wesson, 11 Met. 400, the holder made a demand
some time before he was obliged to, in the opinion of tlie court, and two week*
afterwards made another. He gave notice of the last demand only. The court dis-
charged the indorser for the neglect to notify him of the first demand.

CH. XIII.] EXCUSES FOR WANT OF NOTICE. 521

CHAPTER XIII.

OF EXCUSES FOR WANT OF NOTICE.

It may be doubted whether any branch of commercial law,
somewhat narrow in itself, exhibits so large a number of cases,
and so boundless a variety in their facts and the conclusions from
them, as those which relate to the subject of this chapter. It is
not easy to imagine any circumstance attending non-notice which
in some form or other is not urged as an excuse for it. And the
decisions of tlie courts permit authorities to be cited on both
sides of almost every question.

In our endeavor to present the law on this subject with what-
ever distinctness may be possible, we shall be aided by some
previous general considerations as to the kinds and classes of
these excuses. Some of them are so peculiar, that it is difficult
to arrange them in company with any others, or to bring tliem
under any general head. We may, however, on tlie whole, place
all these excuses (all which have passed under adjudication,
whether they have been deemed sufficient or otherwise) in four
broad divisions.

The first of these is the excuse arising from tlie entire absence
of necessity or utility, because the party who should receive the
notice must know the facts as well as the party who sliould give
it. If, for example, A draws on himself, payable to himself, and
then accepts, and then indorses, a holder need not first demand
of him as drawee, and then notify iiim of non-payment as drawer,
and then notify him again as indorser. And we shall see in
what way and to what extent this principle is applied, not where
a person can be proved to have had knowledge in fact, for it is
certain that this is no excuse for the want of regular notice,
but where the person must of necessity have the knowledge by
presumption of law, as where a firm draws upon itself, or where
some member or members of a firm draw on the firm.

44*

622 NOTES AND BILLS. [CH. XIH.

The next, excuse is actual impossibility. The ground of this
is, that the law lays upon no man an impossible duty. But this
impossibility may arise from some circumstance, such as the
death of the party, which excuses delay only, and not entire
want of notice ; or from some obstruction which may be tempo-
rary only, as war, sickness, or tempest, which excuses delay or
entire want of notice, according to the circumstances of the case ;
or the utter inability to find the party to be notified, or his house
or place of business, which is a complete excuse, unless it is
removed by the efforts which the law requires, and then it will
be seen to excuse delay only. Perhaps the questions presented
by insolvency, and by the recurrence of days in which the law
forbids labor or permits idleness, may best be considered under
this head.

These two classes of excuses are far loss frequent than the
third, which is grounded on the fact tha<^ die party to be notified
had no right whatever to draw or to indorse, and could not, by
acting in his own wrong, acquire any right against others.

The fourth and last class of excuses consists of those which
allege a waiver. The ground on which all excuses of this
class rest is, that the right to require notice may of course be
given up, and that it has been, in the case in question, vol-
untarily abandoned and renounced ; and that this has been
done expressly, or by circumstances which mean and imply
thib waiver.

All of these classes of excuses we shall now proceed to con-
sider, and shall endeavor to illustrate the rules of law respecting
them by a copious citation of authorities, and shall close tliia
chapter with some general remarks on the subject of it.

Cli. .XIII.] EXCUSES FOR WANT OF NOTICE. 523

SECTION I.

OF EXCUSES FOR NON-NOTICE, GROUNDED ON THE NECESSARY KNOWL-
EDGE BY THE PARTY TO BE NOTIFIED.

It has been held, that where a note is made by one firm and
indorsed by another, and one of the partners of the indorsing
firm is also a partner of the making firm, demand is necessary,(^)
and by a reasonable implication notice might be here necessary. (m)

{t) Dwij^ht V Scovil, 2 Conn. 654. Swift, C. J. said: " The circumstance that ona
of the ciefL'ndants was a member of both tlie companies who made and indorsed the noto
can make no difference ; for each company is to be considered as distinct persons,
with different funds and liabilities ; and there is the same reason for presentment and
demand as if the companies were wholly different. If the companies should reside in
different and distant places, the drawing of bills on each other might be convenient in
the course of their business ; hut, on the principle contended for, the company drawing
the bill might be subjected to pay it, because one of the partners belonged to both com-
panies when the company on which it was drawn was solvent, and would have paid
the bill if it had been presented. It is said that notice to one partner is notice to all;
and that here one of the defendants knew that the note was not paid. It is true that
one of the defendants must, in legal consideration, have known that the note was not
paid ; but he equally well knew that the note, when it became due, had not been pre-
sented to the makers, and payment demanded; he knew the fact that exonerated the
defendants from all liability on their indorsement to pay the note, and it would be
strange logic to say that this knowledge rendered the defendants liable."

(«) But the point may still, however, be considered as an open one. In "West
Branch Bank v. Fulmer, 3 Penn. State, 399, the note was made by one firm and
indorsed by another. All the indorsers were partners in the firm which made the
note, which firm had two additional members. No notice to the indorsers was held
necessary. Gibson, C. J. said : " As to the liability of the indorsers, it is enough
that it was decided in Porthouse v. Parker, 1 Camp. 82, in an action by the payee of a
bill against the drawers, that, as the acceptor also happened to be a drawer, there waa
no necessity for notice to him, because the fact of dishonor was known to him ; and
that the knowledge of one was the knowledge of all. Now, putting the makers in this
case in the place of their equivalent, the acceptor, in that, we find that the principle
of the decision covers the whole of our case ; and it is fortified by Taylor v. Young,
."$ Watts, 339, in which it was recognized, and by Gowan v. Jackson, 20 Johns. 176, ia
which it was reasserted. But it is argued, that, though Cochran & Perry were liable

as makers, notice to them as indorsers was requisite to make them liable as such

If, however, the use of notice is to give a drawer or indorser a seasonable opportunity
tc arrange his aff'airs with the acceptor or majcer, it must be as available in its conse-
quences when it is given to him in the one character as when it is given to him in the
other. The principle of Porthouse v. Parker is, that knowledge is notice ; and the
effect of it is, that knowledge of the one firm was the knowledge of the other. It
would be absurd in an indorser to complain that he had not been served with formal
notice of what was known to him, or that he was prejudiced for want of it. As, then,
it was as much the business of Cochran & Perry as it was the business of the other
members of the firm of Beers, Cochran, & Co. to provide for the payment of their joint

524 NOTES AND BILLS. [CH. XIH

But where a partner draws upon a firm of which he is a member,
he is not entitled to notice ; (v) nor, it would seem, where drawers
draw on their own firm, which has other members, although it
would be otherwise if the bill were drawn after a dissolution. (t^)

note at its maturity, and as they all knew that provision had not been made for it,
proof of notice to Cochran & Perry would have been superfluous in an action against
them as indorsers." It may well be doubted whether any valid distinction can be
made on this point between the case where the two firms contain one common mem-
ber, and where they contain more than one.

(y) Rhett v. Poe, 2 How. 457, where the bill had been accepted. Fuller v. Hooper,
3 Gray, 334, where the bill was not accepted. So Gowan v. Jackson, 20 Johns. 176.
See Porthouse v. Parker, 1 Camp. 82. In this case the bill was drawn by an agent of
George, James, and John Parker upon John Parker, and accepted by an agent of the
iatter. The head note of the case states that the drawers were a firm. Tiiis case is
cited by Byles on Bills, p. 223, as authority that notice to one of two or more parties
jointly liable is sufficient. This is true, as has been said, so far as relates to partners,
but incorrect with reference to other joint parties.

(w) In Taylor v. Young, 3 Watts, 339, the bill was drawn by James Taylor & Co.
on the Pittsburg Iron Co., in favor of S. K. Page & Co. The drawers, drawees,
and S. K. Page were partners. The bill was dated Aug. 27th, and payable on demand.
The drawers had dissolved their connection with the drawees on Aug. 12th, which was
published in a newspaper of that date of which the holder was a subscriber. Notice to
the drawer was held necessary. Gibsou, C. J. said : " It is argued, however, that, as
regards the holder, the drawers are to be considered as a partner firm of the house on
which the bill was drawn, and that presentment or notice was unnecessary, on the prin-
ciple of Porthouse v. Parker, 1 Camp. 82, iu which notice was ruled to be superfluous
where the bill is drawn by several on one of themselves, since the acceptor, being like-
wise a drawer, is necessarily apprised of the material facts, and the knowledge of one
partner is the knowledge of all; the converse of which was determined in Gowan v,
Jackson, 20 Johns. 176, and would be our case if the drawer here had been a member
of the general firm when the bill was drawn. But the fact is, it had retired, — notice
of its retirement was published on the 12t!i of Aug., and the bill was drawn on the
27th. To this, it is said, the fact of withdrawal may not have been known to the
holder when he took the bill. But of what importance is his ignorance ? It is said lie
may have been induced to omit presentment and notice of non-payment by a belief that
a continuation of the relation in which the parties once avowedly stood had rendered
such a measure unnecessary. Would a reasonable belief, founded on a notorious
course of dealing between the parties, that the drawer had not funds in the hands of
the drawee, be equivalent to the actual fact, and operate as a disi)ensaiion from tlie
duty of prcsenttnent and notice ? Of collateral facts like these the party must judge
at his peril. In analogy to the revocation of an agent's authority, notice of tiie di-jso-
lution of a partnership is necessary where the outgoing partner holds himself out to tiio
world as the representative of the firm, and attempts to bind it, but not where he acts
professedly and exclusively for himself. In respect to the first, the firm is bound for a
Bupincncss which, in trade, is equivalent to fraud in not apprising the ])ul)lic of the
cessation of a relation wiiich enabled each (lartncr to contract for the whole. But in a
transaction where the outgoing ])artner professed to treat, not for the firm, but for
liimRcIf, it is not easy to perceive how the misc()ncei)tion of a fact that did not enter
into the terms of the contract can dispense with any of its incidents, or give the party
dealing with him an advantage against him."

CH. XIII.] EXCUSES FOR WANT OF NOTICE. 525

The question of notice of the dissolution might perhaps here
be important, (re)

It has also been held, that notice must be given to the in-
dorser when one member of a firm makes a note and another
member is indorser, both parties signing in their own name, and
not in the name of the firm, although the note was given for
goods purchased for partnership purposes, and to be paid for by
partnership funds, (y)

SECTION II.

OF EXCUSES FOR NON-NOTICE, GROUNDED ON IMPOSSIBILITY OF NOTICE.

We have seen that the death of the maker is no excuse for
non-demand, (rt) and, for a still stronger reason, it cannot be an
excuse for non-notice. (6) So, as it is no excuse for non-demand
that the indorser has been appointed administrator of the maker's
estate, (c) it is also no excuse for non-notice. (c?)

(x) The remarks of Gibson, C. J., cited supra, note iv, were obiter, as notice may per-
haps liave been brought home sufficiently to the holder ; also, as the learned judge
remarked, the bill having been received from the payee after maturity, the holder was
bound by the obligations of the payee at the time of indorsement, and the latter was
well aware of the dissolution.

(y) Foland v. Boyd, 23 Penn. State, 476, where one of the partners refused to sign
the note as maker, but consented to indorse it. Knox, J. dissented. Lowrie, J., deliv-
ering the opinion of the court, said: " We discover no substitute for notice, and no
excuse for its omission ; and such was the view taken elsewhere in a very similar case,
Morris v. Husson, 4 Sandf 93. This is not like the cases where a note has copartners
for the makers, and some of them for indorsers ; and wliere, of course, the Uuowl-
edge of the dishonor by the makers is chargeable on them as indorsers. This "suit is
upon the note, a contract by which the maker and indorser stand severally a»»d not
jointly related to the plaintiff, the duties of each being different; and it cannot at all
be said that one is liable for the other, except according to the contract, or that one is
chargeable with the knowledge of the breach of contract of the other. Though they
were partners in the original purchase, that does not confound this contract so as to
allow a demand to be made of the indorser, and notice to the maker, or no notice or
demand at all, which is really the effect of what is claimed here."

(a) Supra, p. 445.

(6) Price v. Young, 1 Nott & McC. 438 ; Gower v. Moore, 2.5 Maine, IG, where the
maker's estate was insolvent, and this was known to the indorser. So where the de-
mand on the maker's administrator is unnecessary, because the latter is not liable, by
statute, until after a certain period, notice should be given. See Hale v. Burr. 12
Mass. 86.

(rf) Juniata Bank v. Hale, 16 S. & R. 157. It is not clear from the case what kind

526 NOTES AKD BILLS. [CH. XIH.

But it cannot be deemed certain what will constitute notice in
such a case. It may be inferred, perhaps, from some authorities,
that a demand on the indorser as administrator, and a notice to
him as indorser, are necessary to charge him as indorser. (e)
But it is not easy to see why a proper demand on him, with a
due presentment of the note, does not necessarily contain all the
essential elements of a regular notice. And it would appear to
be superfluous, if not absurd, to require the holder to say, when
the demand was ineffectual, " Take notice that this bill has been
dishonored by you." The only ground for the requirement can
be, that the indorser must be told that he is looked to personally
for the payment of the note of the deceased. (/)

Where the indorser is dead, notice must be sent to his execu-
tor or administrator ; and if no person has been appointed, or it
cannot be ascertained by the use of due diligence who or where
he or they who have been appointed can be found, notice must
be forwarded to the last place of residence of the deceased. (g-)
Hence the death of the indorser is no excuse for neglect to give
notice. (/<) Even although the administrator is not liable for any
debts due from the deceased for a certain period, (i) still he must

of a demand was made. The statement of the case says that the note was protested,
but no notice was j^iven to the indorsers. The reasons for the decision appear mainly
to he that it is well settled that knowledge is not notice. Groth v. Gyger, 31 Penn.
State, 271. In this case the note was presented at the banking-house of the plaintiffs,
but it does not appear whether the note was payable there or not.

{(■) See Magruder v. Union Bank, 3 Tct. 87, 7 id. 287. The head note of the valu-
able edition of the reports of the Supreme Court by Mr. Justice Curtis is in nearly the
same language as the text. Perhaps also the same doctrine may be inferred from
Juniata Bank v. Hale, 16 S. & R. 1.57.

( /') Caunt » Thompson, 7 C. B. 400, where the holder went to the acccjitor's house
on the day the bill matured, and there saw the drawer, to whom he showed the bill, and
said, '-I have brouglit a bill from Caunt's ; you know what it is." The drawer said,
in reply, "I am executor of W. (the acceptor) ; you must persuade Caunt to let the
bill stand over a few days, because W. (the acceptor) has only been dead a few days.
I shall see the bill paid." This was held sufficient notice to the drawer. Nothing
appears to have been said about a waiver of notice.

(g) Supra, p. .501.

(h) Sec the cases cited supra, p. .501.

(i) Oriental Bank v. Blake, 22 Pick. 206, where Putnam, J. said : "But it docs not
follow, that, because to charge an indorser no demand is necessary to be made on the
administrator of the maker of a note or the acceptor of a bill of exchange falling due
within the year after the appointment, notice of the di.shonor of the bill is not necessary
to be given to the administrator of the indorser, in a reasonable time. He stands in
the place of the indorser; and a want of notice of the dishonor of the bill may be

CH. XIII.] EXCUSES FOR WANT OF NOTICE. 527

have notice, because he may at once, on receiving it, take meas-
ures for obtaining indemnity.

Where the maker or acceptor cannot by the use of due dili-
gence be found, nor his last and usual place of business, no de-
mand on him is necessary to charge an indorser.(y) But the dif-
ficulty or impossibility of making a demand of the acceptor or
maker is no excuse whatever for non-demand of the indorser, or
non-notice to him. It is possible that a brief delay in making
demand and giving notice to an indorser might be excused by
the fact that the holder was during that delay dih'gcntly eni})loyed
in searching for the maker or acceptor. We should regard this,
however, as extremely doubtful, and a prudent holder would, in
such a case, give the notice at once, and at the regnlar time.

But the excuse would certainly be sufficient where the in-
dorser could not be found ; and a delay of notice for several days
has been excused on proof that the holder was unable to find the
indorvSer.(^•) If, however, after due diligence, the indorser cannot

prejudicial to all persons interested in the estate of liis intestate. He, for example,
may have paid to the party liable to him upon the bill money which he might have re-
tained, or have otherwise omitted to obtain security against the undertaking of liis in-
testate Payment by the administrator of the acceptor, at the maturity of the bill,

within the year, could not be enforced by legal process. Tlie law will presume that a
demand of payment under such circumstances would be fruitless. It would be u-^eful
to the administrator of tlie acceptor, bnt would not be of any benefit to tlie indorser.
Whereas, a notice to the administrator of the indorser of the non-acceptance or non-
payment of the bill is of vital importance, inasmuch as it would enable him to take
immediate measures against the parties liable to him, for the security of the estate of
his intestate. Now while, on the one hand, to charge an indorser, the law will not re-
quire the holder to make a vain demand on the acceptor, it will not, on the other hand,
excuse him for neglecting to give essential notice. And we are all of opinion that the
case at bar falls within the latter position. The reasonable notice which would have
been required to be given to the indorser is quite as necessary to be given to iiis execu-
tor or administrator."

(_;') Supra, p. 448, note d.

(k) In Bateman v. Joseph, 2 Camp. 461, 12 East, 433, there was a delay of three
days, which was excused for this reason. Lord Ellenhorough, 2 Camp. 461, said:
" When the holder of a bill of exchange does not know where the indorser is to be
found, it would be very hard if he lost his remedy by not communicating immediate
notice of the dishonor of the bill ; and I think the law lays down no such rigid rule.
The holder must not allow himself to remain in a state of passive and contented igno-
rance ; but if he uses reasonable diligence to discover the residence of the indorser, I
conceive that notice given as soon as this is discovered is due notice of the dishonor
of the bill, within the usage and custom of merchants." In Baldwin v. Richardson, 1
B. & C. 24.5, a delay of nine days was excused. So in Firth v. Thrush, 8 B. & C. 387,
2 Man. & R. 359, where there was a delay of more than two months. Browning v. Kin-

528 NOTES AND BILLS. [CH. XIH.

ne found, nor his last and usual place of abode or of business,
no notice can be necessary, because it is impossible. (/)

When the maker has absconded, some authorities regard tliis
fact as a sufficient excuse for non-demand, while others hold that
reasonable endeavors should be used to find his last place of resi-
dence or business. (m) But notice should certainly be given to
tlie indorser.(n)

Wliere the drawer or indorser has himself absconded, notice
should be given to some person who represents the estate, or who
is a member of his family ; or perhaps at his last usual place of
residence, (o)

As the indorser may require that due demand should be made
on the maker, although the indorser knew the maker's insolvency
at the time of the indorsement, (;?) the same rule would apply
with still greater reason to the question of notice to an indorser.
We should say, therefore, that the maker's insolvency would fur-
nish no excuse for want of notice to an indorser ; (q) but tho

near, Gow, 81, where there was a delay of one day. Sturges v. Derrick, Wightw. 76,
where there was a delay of four months.

(/) In Beveridge v. Burgis, 3 Camp. 262, Lord FJlenborough said : " Ignorance of the
indorser's residence may excuse the want of due notice, but the party must show that
he used reasonable diligence to find it out." Hunt v. Maybec, 3 Seld. 266.

(m) Supra, pp. 449, 4.50.

{n) Sec May j\ Coffin, 4 Mass. 341, infra, note q.

(o) See Ex parte Kohde, Mont. & M. 430 ; Ex parte Johnston, 1 Mont. & A
622, 630.

{/)) Siipni, p. 446, note r,

iq) Nicholson v. Guuthit, 2 11. Bl. 609, infra, p. 529, note r. Thackray v. Blackett,
3 Camp. 164, where tlie defendant, a drawer, was aware of the insolvency of the ac-
ceptor before maturity, and knew the bill would not be paid. Whitfield v. Savage, 2
Bos. & P. 277, wliere the bill was drawn by the defendant for the accommodation of
an indorser. Clcgg r. Cotton, 3 id. 239, where the defendant had drawn on his prin-
cipal, and hearing of his being likely to fail, deposited effects of the principal in the
hands of an indorser. Esdaile v. Sowerby, 11 East, 114, where the insolvency of tho
acceptor and the bankruptcy of the drawer were known to the defendant, an indorser,
nearly a month before the bill matured. See Smith v. Bccket, 13 East, 187, where
the maker of a note had become bankrupt. So Ex parte Wilson, II Ves. 410. So
Boultbee v. Stubbs, 18 id. 20. See Bowes v. Howe, .5 Taunt. 30, 16 East, 112;
May t'. Coffin, 4 Mass. 341, where tlie indorser was held entitled to notice of non-
acceptance, although the drawer had become insolvent and had absconded ; Par
son.i, C. J., Bond v. Farnham, 5 Mass. 170; Crosscn v. Hutchinson, 9 id. 20."); Sand-
ford r. Dillaway, 10 id. 52, where the indorser was aware, at the time of indorsing,
of the maker's insolvency; Farnum ». Fowle, 12 id. 89, where the maker was noto-
riously insolvent six months before the note was made, and so continued until after
maturity ; Shaw v. Reed, 12 Pick. 132 ; Granite Bank r. Ayers, 16 id. 392 ; Shaw, C. J.,

CH. XIII.] EXCUSES FOR WANT OF NOTICE. 529

authorities are not in unison on this point. (r) So also, where the

Lee Bank v. Spencer, 6 Met. 308 ; Mead v. Small, 2 Grecnl. 207 ; Groton v. Dalllieim,
6 id. 476 ; Hunt P. VVadluigh, 26 Maine, 271, where the insolvency of the acceptor was
known to the indorser wlicn he made his indorsement; Buck v. Cotton, 2 Conn. 126,
where the defendant indorsed for accommodation of the maker, knowing his insol-
vency : Holland v. Turner, 10 id. 308; Jackson v. Richards, 2 Caines, 343; Bruce v.
Lytle, 13 Barb. 163, where the defendant, an indorser, was a clerk in the maker's
store before the note was made and after its maturity ; Benedict » Caffe, 5 Duer, 226 ;
Barton v. Baker, 1 S. & 11. 334, wiiere the indorser was aware of the insolvency of the
maker when the note was made ; Nash v. Harrington, 2 Aikens, 9 ; Duncan, J., Gib!)s
V. Cannon, 9 S. & R. 198, 201, 16 id. 261 ; Orear v. McDonald, 9 Gill, 3.50 ; Walton
V. Watson, 13 Mart. La. 347; Kdwards v. Thayer, 2 Bay, 217; Jervey v. Wilbur,
I Bailey, 453. where the indorser knew of the insolvency of the maker before the note
matured. So AUwood v. Haseldon, 2 id. 457 ; Course v. Shaekleford, 2 Nott & McC.
283; Kiddcil v. Ford, 2 Const. R. 678, 3 Brev. 178 ; Hightower v. Ivy, 2 Port. Ala.
308, where the indorser was aware of the maker's insolvency ; Pons v. Kelly, 2 Hayw.
45 ; Denny v. Palmer, 5 Ired. 610.

(r) In De Berdt v. Atkinson, 2 H.Bl. 336, supra, the opinion of Lord C.J. Eyre pro-
ceeded upon the ground that the insolvency of the maker, known to the indorser when
he indorsed the note for the maker's accommodation, was a good excuse for want of
notice. The learned judge said : "But consider on what ground an early demand is
in general required. It is because if any delay takes place, the effects may be gone out
of tlie hands of the acceptor ; and if the holder chooses to wait, he docs it at his own
risk. But apply this rule to the case of known insolvency, what docs it signify to the
person who is liable in the second stage at what time the demand is made on the
drawer, who was known to be insolvent from the beginning ? General rules are estab-
lished for general convenience, and I agree that, if the drawer is not known to be
insolvent, the fact of insolvency will not excuse the want of an early demand ; hut the
fact of knowledge excludes all the presumptions that would otherwise arise. Then as
to notice, and the application for payment to the defendant, what did it signify to him
when that application was made ? It could make no difference to hitn whether it were
made on one day or another ; he meant to guarantee the payment of the note, and
there was no possibility of an\' loss happening to him from the want of notice. In this
instance, therefore, the general rule fails in its application." Buller, J remarked : ''It
is said that the insolvency of the drawer does not take away the necessity of notice ;
that is true where value has been given, but no further." Heath and Rooke, JJ. simply
concurred. It is remarkable, that within two years after this decision the same court
appear to have decided directly contrary in Nicholson v. Gouthit, 2 H. Bl. 609, Lord
C. J. El/re, delivering the opinion of the court, and Hmtk and Rooke, JJ. concurring.
Bailer, J. does not appear to have been present. No notice was taken of the former
case by either counsel or court. In the first case the indorser indorsed without having
received any consideration, and aware of the maker's insolvency. In the latter, the
maker being insolvent, the indorser undertook to guarantee a debt due from the maker
to a third party, by indorsing his note as a security for the debt. The first case, how-
ever, must be considered as overruled by the latter, and has been frequently doubted.
In AUwood V. Haseldon, 2 Bailey, 457, Johnson, J. said, that " it is not law, either
\n this country or in England." So Smft, C. J., Hosmer and Gould, JJ., Buck v.
Cotton, 2 Conn. 126; Nelson, J., Mechanics' Bank v. Griswold, 7 Wend. 165, 169. In
Jackson i'. Richards, 2 Caines, 343, Keiit, C. J. said : " It has been laid down in the case
of De Berdt v. Atkinson, 2 H. Bl 336, that the payee of a promissory note {supra, p. 528,

Vol. I.— 2 I

530 NOTES AND BILLS. [CH. Xm.

maker dies leaving his estate insolvent, not only must demand be
made, (5) but notice must be given. (^)

As the loss of a bill can be no excuse for want of presentment
and demand, so it can be none for want of notice. (?f)

It is a sufficient excuse for not forwarding the notice on the
regular day, that it was Sunday, or some other legal holiday, (?;)
and the same doctrine has been said to extend to Saturday, where
the holder was a Jew. (2^) We have stated on a previous page
the various holidays sanctioned by usage, by statute, or by corn-

note q), indorsing it to give it currency, and knowing of the insolvency of the malicr at
the time of such indorsement, cannot insist on the want of demand and notice ; because
he was not an indorser in the common course of business, and cannot be aiFected by
tlie want of notice. The same point was afterwards ruled by Bulla; J., at Nisi Prius,
in Corney v. Da Costa, 1 Esp. 302. But within two years subsequent to the first de-
cision the same court decided directly the contrary in the case of Nicholson v. Gouthit,
2 H. Bl. 609. I think the reasoning in the last decision the best, and ought to bo
followed." The case of Corney v. Da Costa, 1 Esp. 302, is, however, distinguish.able,
as will be seen subsequently. It would appear from the case of Ex parte Solarte, 2
Deac. & C. 261, that the court considered the bankruptcy of the drawer before ma-
turity was a sufficient excuse for want of notice to him, the acceptor having also
become bankrupt. But Erskine, C. J., in Ex parte Johnston, 1 Mont. & A. 622, 626,
said that the reason for the decision in the former case was, that, under the circum-
stances, the assignees were precluded from setting up the want of notice as a defence,
because they had not advened to the objection in any of their affidavits, nor was it
taken when before tlie commissioner, but urged for the first time in argument before
the court. In Clark v. Minton, cited 2 Const. K. 680, 682, it was held that tlie re-
corded insolvency of the maker under the insolvent acts, before maturity, was a
sufficient excuse for want of notice to the indorser. This case is reported 2 Brev. 185.
See also Kiddcll v. Peronneau, cited id. 188. In Bogy v. Kcil, 1 Misso. 743, Wash,
J. said : " Nothing but the maker's insolvency at the time of indorsing his note, or
some such circumstances as show that the indorser did not rely upon the maker's
liability or punctuality, or had no right to rely upon payment by the maker, will, in the
opinion of this court, dispense with the necessity of giving the indorser notice." In
M'Clcllan i; Clarke, 2 Brev. 106, where the indorser knew, when he indorsed, that
the maker had absconded, and was insolvent, no notice was held necessary. In
Stothart V. Parker, 1 Overt. 260, where the insolvency was known to the indorser when
he indorsed, no notice was held necessary.

(s) Supra, p. 447, note u.

(<) Johnson v. Harth, 1 Bailey, 482 ; Gower v. Moore, 25 Maine, 16 ; Lawrence n.
Langlcy, 14 N. H. 70, where one maker had become bankrupt before maturity, and
the other had died insolvent. But in Davis v. Francisco, 11 Misso. 572, notice was
held not necessary to an indorser of a note over due, he being aware that the maker
had dicil insolvent. Scott, J. dissenting.

(u) Infra, Vol. II. p. 261.

(v) Supra, p. 515.

(w) In Lindo v. Unsworth, 2 Camp. 602, Lord EUerAorough said : " The law mer
rfiant respects the religion of different people."

CH. XIII.] EXCUSES FOR WANT OF NOTICE. 531

nion law,(a;) and also that notices should be sent on the next
succeeding business day, because the holidays are not counted
at all.(2/)

Where a note is indorsed at so short a period before it will be
due, and the indorser knows that a demand on the maker is
impossible by reason of the distance at which he lives from the
place at which the indorsement was made, a reasonable delay
in demanding the note would probably be excused as to that
indorser. (z)

And where a joint note has been indorsed, and the makers live
so far apart that a presentment and demand on both on tlie day
of maturity is impossible, the same excuse would apply to the
same extent, (a) In both of these cases, which might almost be
considered as coming under the law of waiver, we should say
that notice need not be given until after a regular and legal de-
mand could be made. But we have no positive authority for this.

A delay of some days has been excused by the fact that the
notice was taken from the post-office by a person of the same
name with him for whom it was intended. (6)

Among the circumstances which have been considered as con-
stituting a sufficient excuse for want of notice, or rather for a
delay of notice, are,(c) the prevalence of a malignant disease,
which rendered it dangerous to enter the infected district, (c?) and

(x) Supra, pp. 400 - 403.

{y) Supi-a, p. 515.

(z) There must, however, in this as in other cases, be due diligence. See Anderton
V. Beck, 16 East, 248, and Boehm v. Sterling, 7 T. li. 423. In France, an indorser
transferring a bill so late as to make regular notice impracticable, cannot take advan-
tage of it, but prior indorsers and the drawer may. Pardessus, 451.

(a) Supra, p. 363.

(6) Jones v. Wardell, 6 Watts & S. 399.

(c) Hopkirk v. Page, 2 Brock. C. C. 20. See U. S. v. Barker, 4 Wash. C. C. 464,
12 Wheat. 559, 1 Paine, C. C. 156. See Patience v. Townley, 2 J. P. Smith, 223.

(d) Tunno v. Lague, 2 Johns. Cas. 1. Contra, Roosevelt v. Woodhull, Anthon, 35.
In this case the notice for the plaintiff arrived in New York some time in September.
The plaintiff had left the city on account of an epidemic which then prevailed, and on
his return, in October, found the protested bill under the door of liis office. He had
(eft no one in charge of his business, nor had he placed there any notification of the
^lace to which he had removed. He sent the notice to the defendant immediately after
its discovery. Van Ness, J. nonsuited him. This matter is now regulated by statute in
New York, by which parties leaving their place of business within the infected district
are required to register their names and the places to which they may wish their notices
to bo sent ; otherwise it will be suflScient for the party notifying to deposit the notice in
the post-office.

532 NOTES AND BILLS. [CH. Xffl.

a violent timpest, wliich has so obstructed the roads as to ren-
der travelling over them impossible. Among the circumstances
offered as an excuse, but held to be insufficient, is the dangerous
illness of an indorser's wife.(e)

It must always be remembered, that the excuse of impossibil-
ity, on wliatever facts it may rest, continues only so long as the
impossibility continues. That is, if a party bound to give notice
gives none, because he cannot give it at the regular time, but can
give notice at a subsequent period within wliich the notice may
possibly be of use, he is bound to give it then. In other words,
the excuse of an impossibility which is not permanent is only an
excuse for a delay until the impossibility is removed. (/)

SECTION III.

EXCUSES FOR NON-NOTICE, GROUNDED ON THE ABSENCE OF RIGHT
IN ANY PARTY TO REQUIRE NOTICE.

The most usual and important excuse for want of notice, on
this ground, arises in the case of bills being drawn without there
being any funds belonging to the drawers in the hands of the par-
ties upon whom the bills, are drawn. We propose to consider,
also, in this place, how far this fact operates as an excuse for the
absence of proper presentment.

In the first and leading case on this subject, decided by the
Court of King's Bench in the year 1786, it was held, that when

(e) Turner v. Leach, Chit. Bills, 452, an action by the eleventh indorscr against the
eighth. The notice was duly left, on Sept. 4th, at the house of the tenth indorscr,
who, in consequence of the dangerous illness of his wife at a distant place, had left
his house, on Sept. 1st, in charge of a boy, who had no authority to open letters, and
intending to return on Sept. 3d. Owing to the extreme illness of his wife, he did not
return until Sept. 8th, when the notice was duly forwarded to the j)huntifF, who took up
the bill, and then sued the defendant, who insisted upon a discharge on the ground of
laches in forwarding the notice. It was urged for the i)laintitf, that the dangerous sick-
ness of the prior indorser's wife excused his absence from home and the delay in giving
notice of tlie dishonor ; and that, as tlie dishonor is contrary to the contract and the
oxpcctatiun of the parties, there is no reason for requiring an indorscr to be in the
way, or to apjioint an agent, in his absence, to provide for such an event. ]5ut Lord
ElUmltoroiiyh ruled that these circumstances constituted no excuse for the deluy in giv-
ing notice. This case is reported, but not on this point, iu 4 B. & Aid. 451.

{/) Bi.ale r. Parrish, 20 N Y. 407.

CH. XIII.] EXCUSES FOR WANT OF NOTICE. 533

the drawer has no effects in the hands of the drawee, no notice
of dishonor is necessary, (g") The reason given for this decision
by one of the judges (A) is, that the drawing under such circum-
stances is a fraud on the part of the drawer, and deprives him
of the usual right to notice. Tlie reason given by another
judge (i) is, that the drawer cannot possibly be injured by want
of notice, and that he has no right to draw or to expect payment.

{g) Bickerdike v. Bollraan, 1 T. R. 405. The drawer was indebted to the drawee,
in this case, to a hirge amount. The bill was due Oct. 18th, and presented on that
day for payment, and no notice of the refusal was given. The bill does not appear
to have been accepted. This case is affirmed and recognized in Goodall v. DoUey, 1
T. R. 712, and Rogers v. Stevens, 2 id. 713. The question was raised in Gale v.
Walsh, 5 id. 239.

(h) Bickerdike v. Bollman, 1 T. R. 40.5, Ashhurst, J., who said : " As to the general
rule, it has never been disputed that the want of notice to the drawer, after the dishonor
of a bill, is tantamount to payment by him ; but that rule is not without exceptions, and
particularly in the case mentioned by the plaintiff's counsel, that notice is not necessary,
to be given where the drawer has no effects in the hands of the drawee, for it is a fraud
in itself, and if that can be proved, the notice may be dispensed with." Fraud was
also said to be the reason of the rule laid down in Bickerdike v. Bollman, by Lord At-
vanlei/, C. J. ; Chambre and Heath, JJ., in Clegg v. Cotton, 3 Bos. & P. 239 ; Hosmer.
J., Buck V. Cotton, 2 Conn. 126; Sharkey, C. J., Cook v. Martin, 5 Smedes & M.
379 ; Swan, J., Miser v. Trovinger, 7 Ohio State, 281. Mr. Wallace, in his note in
2 Smith L. C. 22, says that fraud is the " reason and limit of the exception." He also
says that all the cases in which demand and notice are not requisite to charge the
drawer or indorser are cases of fraud. But tliis is clearly incorrect, for v/e shall have
occasion to mention excuses which have nothing whatever to do with fraud.

(i) Bickerdike v. Bollman, 1 T. R. 405, Buller, J., who said : " On the second trial
of the cause of Tindal v. Brown, 1 T. R. 167, before me at Guildhall, the jury told me
they found their verdict for the plaintiff, on the ground that it had not appeared from
the evidence that any injury had arisen to the party from want of notice. In conse-
quence of which, upon the subsequent trial, I told the jury that, where a bill wa.s
accepted, it was prima facie evidence that there were effects of the drawer in the hands
of the acceptor. The mistake of the jury on the former occasion had arisen from their
taking it for granted that the drawer had not been injured by the want of notice, be-
cause he had not proved it, whereas that proof lay on the plaintiff to produce. And
upon my mentioning this matter to the court, they thought that, if there were no
effects in the hands of the acceptor, that would vary the question very much, as the
drawer could not be hurt. The law requires notice to be given for this reason, because
it is presumed that the bill is drawn on account of the drawee's having effects of the
drawer in his hands ; and if the latter lias notice that the bill is not accepted, or not
paid, he may withdraw them immediately. But if he lias no effects in the other's
hands, then he cannot be injured for want of notice. Soon after I sat on this bench, I
tried a cause at Guildiiall, on a bill of exchange, which was either drawn or accepted
^y a person residing in Holland ; and a full special jury, under my direction, found a
verdict for the plaintiff, notwithstanding no notice had been given to the drawer of the
bill's having been disiionored ; because he had no effects in the hands of the person on
whom the bill was drawn. That verdict never was objected to ; and if it be proved on
45*

534 NOTES AND BILLS. [CH. XIIL

It has been the subject of frequent regret on the part of many
emijient English judges, (y) that the rule requiring strict notice
in all cases was ever infringed upon ; and while recognizing the
authority of the original case, they have declared that it is not to
be extended. (^')

In fact, it has been remarked, that in their desire to confine the
operation of the exception within the smallest practicable limit,

the part of the plaintiiF, that, from the time the bill was drawn till the time it became
due, the drawee never had any effects of the drawer in his hands, I think notice to the
drawer is not necessary ; for he must know whether he had effects in the hands of the
drawee or not; and if he had none, he had no right to draw upon him, and to accept
payment from him ; nor can he be injured by the non-payment of the bill, or the want
of notice that it has been dishonored." Absence of the possibility of injury is given as
the reason for the exception by Buller, J., in Goodall v. DoUey, 1 T. R. 712, 714;
Lord Ellenhorough, C. J., Legge v. Thorpe, 2 Camp. 310 ; Blackhan v. Doren, 2 id. 503 ;
Lord Denman, C. J., Terry i'. Parker, 6 A. & E. 502 ; Thompson, J., Hoffman v. Smith,
1 Caines, 157 ; Boyle, C J., Ralston v. Bullitts, 3 Bibb, 261, 263; Dorsey, J., Eichel-
berger v. Finley, 7 Harris & J. 381, iiifra, p. 535, note /.

(j) Lord Ellenborough, C. J., Blackhan v. Doren, 2 Camp. 503 ; Legge v. Thorpe,
id. 310; Orr v. Maginnis, 7 East, 359, where he said that it had been regretted by "a
very learned person who was counsel for the plaintiff" in that case." This was said to
refer to Chambre, J., in 7 East, 362, note a, and to Lord Eldon, in 12 id. 173, note d.
Chambre wl^s counsel for the plaintiffs, as appears by the report of the case, 1 T. R.
406. Le Blanc, J., Claridge v. Dalton, 4 Maule & S. 226 ; Abbott, C. J , Cory v. Scott,
3 B. & Aid. 619 ; Lord Alvanley, C. J., Clegg v. Cotton, 3 Bos. & P. 239 ; Bosanquet,
J., Latittc V. Slattcr, 6 Bing. 623 ; Lord Tind<d, C. J., id., who said it was " an ex-
cepted case " ; Parke, B., Carter v. Flower, 16 M. & W. 743, 748. So also Leicis, C. J.,
Case V. Morris, 31 Penn. State, 100, 104. In Ex parte Heath, 2 Ves. & B. 240, Lord
Eldon said : " I have often lamented the consequences of the distinction, introduced in
modern times, as to the necessity of giving notice of the non-payment or non-accept-
ance of a bill of exchange, whether the acceptor had or had not effects ; and I have
the satisfaction of finding that my opinion has been adopted by the courts of law. Ac-
cording to the old rule, a bill of exchange, purporting upon the face of it to be for
value received, the inijilication of law from the acceptance was, that the acceptor had
effects. Then they came to this general doctrine, that it is not necessary for the holder
to give notice, if he can sliow tliat the acceptor had no effects. The first objection is,
who is to decide whether there are effects or not ? In the simple case, where there is
nothing but that particular bill, and no other dealing between them, there is no diffi-
culty ; but if there are complicated engagements, and various accommodation transac-
tions, no one can say whether there arc effects or not."

(k) Lord Ellmbovowjh, C. J., in Thackray v. Blackctt, 3 Camp. 164, said : "Judges
of great authority have doubted the propriety of the rule laid down in Bickerdikc r.
Bollman, and I certainly will not give it any extension." So in Orr t'. Maginnis, 7
East, 359, the same judge said : " I shall anxiously resist the further extension of the
exception." And in Uucker v. Hiller, 16 East, 43 : "I know the opinion of my Lord
Chancellor Eldon to be, that the doctrine of that case ought ftot to be pushed further."
So Pnike, B., Carter v. Flower, 16 M. & W. 743, 748; Lewis, C. J., Case v. Monii.
31 Penn. State, 100, 104.

CH. XIII.] EXCUSES FOR WANT OF NOTICE. 535

they have frittered it away until there is but little of it left ; and
the reasons upon which they rest in tlieir decisions ai-e so various
and unsatisfactory, that it is a task of no inconsiderable diffi-
culty to extract from them any certain rule of law by which this
class of cases may be readily distinguished. (/)

The true test, in our opinion, in each case, is this : Had the
drawer, under the circumstances of the case, a right to draw ?
Tliis depends upon the fact whether he had a reasonable ground
to expect that the bill would be honored, or not. If he had
such reason to expect it to be honored, he is entitled to a regu-
lar presentment, and notice of refusal to accept to pay ; and
if not so entitled, he cannot complain either for negligence in

{/) Dorscy, J., Eichclberger v. Finlcy, 7 Harris & J. 381, who, after referring to the
discrepancy in the reasons as given by the English judges, and stating that the cases of
Legge ». Thorpe, 12 East, 171, 2 Camp. 310, and Chiridgc v. Dalton, 4 Maule & S. 226,
are inconsistent with the reason of fraud, as " the conduct of the defendants, in those
cases, is free from the slightest imputation of fraud," continues : " The true rationale
of the rule introduced in Bickerdike v. Bollman is that given by Bailer, J., ' that the
drawer could not bo injured by the want of notice.' Why not injured by the want of
notice 1 Because the object of notice is to let the drawer know that his bill has been
dishonored, and this he already knew from the nature of the circumstances connected
with it. To require a party to be notified of a fact of which he has already a perfect
knowledge does appear to be a solecism not at all in harmony with the beautiful system
of reasoning and good sense which pervades every branch of legal science. The
many distinguished judges who have disapproved of this rule, in expressing their re-
grets at its introduction, correctly state it to be ' the substitution of knowledge for notice ' ;
and yet, when called upon to apply the principle to the facts in each particular case,
such has been the anxiety to limit the extent of its application, such the desire to in-
graft upon it restrictions and discriminations by which future cases may evade its
operation, that in subtilties and refinements the essence and meaning of the rule has
been almost wholly lost sight of Of this, the case of Orr v. Maginnis, 7 East, 359, is
a memorable illustration." We doubt whether the true reason is here stated. The
drawer cannot certainly know that the bill may be dishonored, for some one might ac-
cept for his honor, or for that of the drawee. This is as good a reason as that given for
not considering the holder excused from making a due presentment where the indorser
was aware when he put his name upon a note that the maker was hopelessly insolvent:
which is, as we have already seen, that some of his friends may provide him with the
means to take up the note. Also, because it is well settled, as will appear hereafter,
that knowledge of dishonor not obtained by a party who has a right to give notice is
not equivalent to notice. It is also doubtful whether the absence of any possibility of
injury is the proper reason. Because, according to what would seem to be the opinions
of some judges, even if a drawer, without funds, who has no reason nor right to expect
that the bill will be honored, can prove actual injury, he may be discharged by neglect
in making demand and in giving notice ; which could not l)e true unless there was still
some possibility of injury. But what we consider to be the reason for objecting to the
doctrine laid down here is, that we doubt, as will presently appear, whether the fact
fhat the drawer has been injured, under such circumstances, would avail him.

530 NOTES AND BILLS. [CH. Xm.

presenting and in forwarding notice, or for an entire neglect
to do either. (w)

The " reasonable groun.ds " required by law are not such as would
excite an idle hope, a wild expectation, or a remote probability,

(ill) In French v. Bank of Columbia, 4 Crancli, 141, Marshall, C. J. said : " Notice
must immediately i)c given to the drawer that his bill is dishonored by the drawee,
because he is presumed to have effects in the hands of the drawee, in consequence
of which the drawee ought to pay the bill, and that he may sustain an injury by act-
ing on the presumption that the bill is actually paid. The law requires this notice,
not merely as an indemnity against actual injury, but as a security against a jiossible
injury, which may result from the laches of the holder of the bill. To this security,
then, it would seem tiie drawer ought to remain entitled, unless his case be such as
to take him out of the reason of the rule. A drawer who has no effects in the iiands
of the drawee is said to be without the reason of the rule, and therefore to form an
exce|)tion to it. This has been laid down in the books as a positive qualification
of the rule, but has seldom been so laid down, except in cases wliere, in point of
fact, the drawer had no right to expect that his bill would be honored, and could
sustain no injury by the neglect of the holder to give notice of its being dishon-
ored. In reason, it would seem that in such cases only can the exception be ad-
mitted, and that the necessity of notice ought to be dispensed with only in those
cases where tiotice must be unnecessary or immaterial to the drawer. The reason-
ing of the judges in most of the cases which have been cited would seem to warrant
this restriction of the exception. Tiie case of Bickerdike v. Bollman, 1 T. R. 405,
was a bill drawn by a debtor on his creditor, without a single accompanying cir-
cumstance which could raise an expectation that the bill would be accepted or
paid. Notice in this case was declared to be unnecessary. Justice Aslihurst gives as
a reason for this opinion, that the drawing was in itself a fraud. This reason must be
considered as additional to the general ground on which the case was placed in the
argument, which was, that the want of notice could not possibly affect the drawer.
The particular reason given by Justice Ashhurst for his opinion is clearly inapjdica-
ble to any case in which the drawer was justified in drawing. In the opinion of Jus-
tice Buller, some general reasoning is introduced, from which it is fairly dcducible
that he considered the drawer as having no rigiit to exj)ect that the bill would bo
paid, and as being liable to no injury from the want of notice, and that these were
tiie true grounds of the exception." Afier reviewing the cases of Goodall v. Dollcv,
1 T. R. 712, and Rogers v. Stevens, 2 id. 713, and stating that tlie reason given by
Lord Kenyon in tlie latter was "because the drawer nuisf know tliat he had no right to
draw on the drawee," the learned judge continues : " It would seem to be tlie fair con-
struction of these cases, that a person having a right to draw in consequence of engagc-
mcnt.s between himself and the drawee, or in conseciuence of consignments made to
the drawee, or from any other cause, ought to be considered as drawing upon funds in
the hands of the drawee, and therefore as not coming within the exccjition to the gen-
eral rule. The transaction cannot be denominated a fraud, for in such case it is
a fair commercial transaction. Neither can it be truly said that he had no right
to expect his bill would be paid, for a ficrson authorized to draw must expect his
draft will be honored. Neither can it be said tliat he has virtual notice of the j)rotcst,
and that actual notice is useless, and the want of it can do him no injury; for this is
only true when at the time of drawing the drawer has no reason to expect that his bili
will Ik; paid. A person having a right to draw, and a fair right to cxi)ect that 1 is bili

CH. Xffl.] EXCUSES FOR WANT OF NOTICE. 537

that the bill might be honored ; but such as create a full expec
tation, and a strong probability, of its payment ; such, indeed, as
would induce a merchant of common prudence, and ordinary

will be honored, would not come within the reason of the exception, and tlierefore, it
may well be contended, ought not to be brought within the exception itself." The
following cases, as to presentment, support the view that want of funds and absence of
reasonable grounds to expect the honor of the bill constitute an excuse. Terry v. Par-
ker, 6 A. & E. 502, 1 Nev. & P. 752, where the drawer was held, though presentment
was not made to the drawee till two days after maturity. The bill was payable six
months from date, and the presentment for acceptance and payment imd jjrobably be-
come merged. Parsons, C. J., Bond v. Farnham, 5 Mass. 171 ; Kinsley v. Robinson,
21 Pick. 327, where the bill liad been acce])ted, and a presentment ten days after matu-
rity was excused ; Coiven, J., Ilarker v. Anderson, 21 Wend. 372. See Franklin r.
Vanderpool, 1 Hall, 78. In Dollfus v. Frosch, 1 Denio, 367, presentment for pay-
ment was made three days before maturity, and the drawer was held. The bill was
"non-acceptable." In Mol)ley ». Clark, 28 Barb. 390, the drawer of a bill which had
been duly presented for acceptance and accepted was held, although there was no pre-
sentment for payment. See Wood v. Gibbs, 35 Miss. 559, where a neglect to present
a sight bill within a reasonable time was excused. The evidence of want of funds in
this ease was an admission of the fact by the drawer. See Adams v. Darby, 28 Misso.
162. But Radcliff) J., in Cruger v. Armstrong, 3 Johns. Cas. 5, said: "The want
of funds may excuse the want of notice of the non-payment, but it cannot be a reason
to dispense with the presentment, or demand of payment. The drawee without funds
might have paid it for the honor of the drawer." The same was held in English v.
Wall, 12 Rob. La. 132, where the bill was protested prematurely, and the drawer was
discharged. In the following cases the same rule was applied as regards notice of
non-acceptance, there being no difference between the case of laches in giving notice,
and that where no notice is given. Dickins v. Beal, 10 Pet. 572; Baker u. Gallagher,
1 Wash. C. C. 461 ; Read v. Wilkinson, 2 id. 514 ; Warder v. Tucker, 7 Mass. 449.
See Stanton v. Blossom, 14 id. 116; Van Wart v. Smith, 1 Wend. 219; Cowen, J.,
Commercial Biink v. Hughes, 17 id. 94, 97; Wollenweber v. Ketterlinus, 17 Penn.
State, 389 ; Cathell v. Goodwin, 1 Harris & G. 468 ; Eichelberger v. Finley, 7 Harris
& J. 381 ; Oliver i-. Bank of Tennessee, 11 Humph. 74 ; Porte); J., Hill v. Martin,
12 Mart. La. 177; Benoist v. Creditors, 18 La. 522; Anderson v. Folgcr, 11 La.
Ann. 269; Whaley v. Houston, 12 id. 585; Ralston u. Bullitts, 3Bibb, 261 ; Farm-
ers' Bank v. Vanmeter, 4 liand. Va. 553; Hubble v. Fogartie, 3 Rich. 413; Dur-
rum V Hendrick, 4 Texas, 495. In the following cases the rule was applied with re-
spect to notice of non-payment. Rhett v. Poe, 2 How. 457 ; Hopkirk v. Page, 2
Brock. 20; Valk v. Simmons, 4 Mason, 113; Allen v. King, 4 McLean, 128. See
Savage v. Merle, 5 Pick. 83 ; Hoffman v. Smith, 1 Caines, 157 ; liadcUff, J., Cruger r.
Armstrong, 3 Johns. Cas. 5 ; Cowen, J., Commercial Bank v. Hughes, 17 Wend. 94 ;
Dollfus V. Frosch, 1 Denio, 367 ; Mobley v. Clark, 28 Barb. 390 ; Case v. Morris,
31 Penn. State. 100; Archer, J, Clopper v. Union Bank, 7 Harris & J. 92, 102;
Bloodgood V. Hawthorn, 9 La. 124; Benoist v. Creditors, 18 id. 522; Williams r.
Brashear, 19 id. 370, 16 id. 77; English v. Wall, 12 Rob. La. 132; Gillespie v.
Cammack, 3 La. Ann. 248 ; AVhalcy v. Houston, 12 id. 585 ; Blankensbip ?•. Rogers,
10 Ind. 333 ; Miser v. Trovinger, 7 Ohio State, 281 ; Oliver v. Bank of Tennes-
see, 11 Humph. 74; Spear v. Atkinson, 1 Ired. 262; Cook v. Martin, 5 Smedcs & M.
«/79 ; Armstrong v Gay, 1 Stew. Ala. 175 ; Yongue v. Ruff, 3 Strob. L. 31 1 ; Boulager

638 NOTES AND BILLS. [CH. Xffl.

regard foi' his commercial credit, to draw a like bill.('/i) The rea-
sonableness of the expectation has been held to be ordinarily a
.question of law ; but when the proof is contradictory, and the
facts equivocal or contradictory, it is a mixed question of law
and fact.(o) To apply this rule, the drawer may have a right to

r. Talleyrand, 2 Esp. 550 ; Lord EUenborough, Rucker v. Hiller, 1 6 East, 43, 3 Camp.
217 ; Brown v. Maffey, 15 East, 216; Claridge v. Dalton, 4 Maule & S. 226. See
the cases cited, supra, p. 533, note g.

In the following cases no protest was held necessary. Benoist v. Creditors, 1 8 La. 522 ;
Legge V. Thorpe, 12 East, 171, 2 Camp. 310. But this last case may perhaps be in
opposition to the doctrine of the text, that the right to demand and notice depends upon
the reasonableness of the expectation that the bill will be honored The circumstances
of the case were as follows : The bill was drawn in favor of the payee, because the
drawer had, at the request of the drawees, who were executors, employed tlie payee
to do some carpenter's work on a building which the drawer had rented of the deceased
before his death, under an agreement that the rent reserved was to be laid out in cer-
tain improvements on the premises, the value of which had amounted to more tlian the
rent. The bill was drawn in expectation that the executor would pay, he having assets.
Lord EUenborough, C. J. said, 12 East, 175 : " The fact is, that the drawer was not alto-
gether unwarranted, under the circumstances, in expecting tliat his bill might be honored,
so that there is no imputation upon him for having drawn the bill." This case may,
however, be explained by the fact that the improvements agreed to be made by the
drawer in lieu of paying rent covered the expenses incurred on the building, on account
of which the bill was drawn, that is, that the carpenter's work on the building was part
of the improvements which the drawer agreed to make. This fact does not appear
clearly from the case, as reported in East, from which we have taken the above cir-
cumstances. In the report in Campbell, all that appears is the foct tiiat the drawee
testified that he had no funds of the drawer, and that the latter had no right to
expect that, upon any consideration, the bill would be accepted and paid. It may
perhaps be that the drawer acted as the drawee's agent, and no notice was con-
sidered necessary, it being a bill drawn by a party ujion himself. In Foard v. Wo-
mack, 2 Ala. 368, entire absence of funds, independent of the question of reasonable
expectation, was held to be the test. See Tarver v. Nance, 5 id. 712 ; Hill v. Norris, 2
Stew. & P. 114.

(n) Dorspy, J., Cathell v. Goodwin, I Harris & G. 468, 471 ; Archer, J., Orear e.
McDonald, 9 Gill, 350, 357. In Armstrong v. Gay, I Stew. Ala. 175, there seems
to have been a chance that the drawee would have accepted and j)aid, but there
was no sufficient ground for the drawer to expect it.

(o) Cathell i\ Goodwin, 1 Harris & G. 468 ; Oroar i-. McDonald, 9 Gill, 350 ;
Wollcnwcbcr v. Ketterlinus, 17 Penn. State, 389. In this case the draft was drawn
on an agent whose ])rincipal was to receive a sum of money by contract for fur-
nishing a certain quantity of maps within a specified time. The drawer, knowing
the terms of the contract, agreed to perform a part of the work on the maps, but
after considerable delay, finding himself unable to do the work, got the payee to do it,
and drew the draft in his favor. Owing to the drawer's delay, the maps were not com-
pleted in time, and the principal was not entitled to receive any money under the con-
tract. The draft was drawn for a greater sum than the agent was to receive. The
judge charged that tliesc facts, if believed, constituted an excuse for want of not>«
of non-accej)tancc to the drawer. Held correct.

CH. XIII.] EXCUSES FOR WANT OF NOTICE. 539

expect that the bill will be honored, when there is a fluctuating
balance between him and the drawee, although the balance may
be against the former at the time presentment was raade,(;?) or
where there are open accounts between the parties. (7)

But we do not think that presentment and notice would be ne-
cessary if it were proved that the drawer knew the state of the ac-
count when he drew, and made no provision for the honor of the
bill before the time when it should in the regular course be pre-
sented ; (r) because the evidence of open accounts and fluctuating
balances would seem to be proof of a right to expect the honor
of the bill, which might be rebutted by counter-proof of there
being no reasonable grounds upon which to found such expecta-
tion. The same rule would also be applicable where, although
there were open accounts between drawer and drawee, the ac-
counts were in litigation, and that fact was known to the drawer
at the time of drawing, (i') So also when consignments were
made, but with an understanding that the bills were not to be
accepted until after a certain period, and the bill was due prior to

{/)) Blackhan v. Doren, 2 Camp. 503, where the bill was for £ 250. The drawer
had £ 1,500 in the hands of the drawee, but owed him £ 10,000, which the latter had
appropriated. Notice was held necessary. If these were all the facts in the case, we
should doubt the propriety of the decision. Lord Ellenhorouyh, C. J., Brown v. MafFey,
15 East, 216. See Bagnall v. Andrews, 7 Bing. 217 ; Orear v. McDonald, 9 Gill, 350 ;
Baldwin, J,, Dickins v. Beal, 10 Pet. 572, 577; Richardson, J., Sutcliife v. M'Dowell,
2 Nott & McC. 251, 256.

(7) Hopkirk v. Page, 2 Brock. 20; Robinson ik Ames, 20 Johns. 146; Williams r.
Brashear, 19 La. 370, 16 id. 77. See New Orleans Bank v. Harper, 12 Rob. La. 231, 233 ;
Hill V. Norris, 2 Stew. & P. 114; Baldwin, J., Dickins v. Beal, 10 Pet. 572, 577 ; Frost,
J., Yongue i'. Ruff, 3 Strob. 311 ; Richardson, J., Adams v. Darby, 28 Misso. 162.

(r) In Hopkirk v. Page, 2 Brock, 20, there had been several transactions prior to the
time of drawing the bill between the drawer and the drawees. The drawees had acted
as agents of the drawer in effecting the sale of an estate, and the sale of several con-
signments of tobacco. There was a mortgage on the estate sold, for which the vendee
retained a considerable sum of money in iiis hands, and for which no claimant had for
a long time appeared. There had been prior bills of the drawer on the drawees pro-
tested. For some time prior to drawing the bill in suit there had been no consignment
of tobacco, and a letter from the drawer had been received by the drawee stating that it
was feared that the representative of the mortgagee had been found, and that little could
be expected therefrom, and it concluded by saying, that, as to " paying any more, or
raising money on the uncertainty of the mortgage, we shall not attempt." There was
a small balance due the drawee at the time the bill was drawn. Want of notice of
con-payment was excused. So in Dollfus v. Frosch, 1 Denio, 367, there was an open
account between the drawer and drawee, and the drawer was charged, although pre-
sentment was made three days before maturity and no notice given.

(s) Dollfus V. Frosch, 1 Denio, 367. See Benoist v. Creditors, 18 La. 522.

540 NOTES AND BILLS. [CH. XIIL

that time, these facts would constitute a sufficient excuse for want
of notice. (^)

The drawer may likewise have good reason to believe that the
bill will be honored, if he has consigned goods to the drawee, (m)
although the consignment may, by accident or otherwise, not have
come into the possession of the drawee, (y) or may, by deprecia-
tion in value or other loss, have become insufficient to cover the
amount of the bill.(2y)

(t) Claridge v. Dalton, 4 Maiile & S. 226, where the drawer had been in the liabit of
supplying the drawee with goods, and the latter to accept bills drawn on them, at the
end of the year. At tlie time of drawing, the drawer had received an order for goods,
and had forwarded them to the drawee, to the value of £270. The bill was for £300,
and due Sept. 1. Notice was not given within due time, but the drawer was held.
Lord EUenborough, C. J., said : " I accede to the proposition, that v/herc there are any
funds in the hands of the drawee, so that the drawer has a right to expect, or even whei-e
there are not any funds, if the bill be drawn under such circumstances as may induce
the drawer to entertain a reasonable expectation that the bill will be accepted and paid,
the person so drawing it is entitled to notice. The question, therefore, is, whether in
this instance there were any funds in hand at the time of drawing applicable to this
bill, or a ground of reasonable expectation that when the bill became due the drawee
would come forward and pay it. As to funds, though tliere were goods of the defendant
in the drawee's hands at the time of drawing, yet they were not such as could be prop-
erly set against the drawing. And as to any reasonable expectation that the Kill would
be paid, it was neither accepted, nor had the defendant any claim upon the drawee to
have it honored, according to the due course of credit between them, until tlie end of
the year. At that time he would have been entitled to draw, whereas this hill, which
is at two months, became due on the 1st of September; it was drawn, therefore, in
anticipation of his credit, and without any assurance of accommodation. For if there
never was any drawing between the parties but at the end of the year, or accepting of
bills, how shall we say that the defendant was authorized to entertain a reasonable ex-
pectation that this bill would be honored ? And if not, this falls within the rule laid
down in Bickerdike v. Bollman, and notice was not necessary."

(«) Hopkirk v. Page, 2 Brock. 20 ; Orcar v. IMcDonald, 9 Gill, 3.50, where a bill
was drawn for .S.'J,000, by authority of the drawee. The drawer advised tlie drawee of
a consignment to meet it, and the latter accepted. The consignment subsequently re-
ceived brought $ 7,000. Other drafts had been drawn and accepted, and other consign-
ments made, but at the maturity of the bill the acceptors had not sufficient funds to
take it up, after payment of drafts subsequently drawn and accepted. A presentment
two days after maturity was not excused. See New Orleans Bank v. Harper, 12
Rob. La. 231 ; Lacoste v. Harper, 3 La. Ann. 385 ; Grosvcnor v. Stone, 8 Pick. 79 ;
Bnldwhi, J., Dickins v. Bcal, 10 Pet. 572, 577 ; Frost, J., Yongue v. liuff, 3 Strob.31 1 ,
Lord Ellpiibnrouf/h, C. J., Lcgge r. Thorpe, 2 Camp. 310.

{v) Sec Ruckcr v. Hillcr, 16 East, 43, infra, note w. Ei/re, C. J., Wahvyn r. St.
Quintin, 1 1V)S. & P. 6.52, 656 ; Lord FJlcnboronqh, C. J., Lcgge v. Thorpe, 12 East
171, 175, Oliver v. Bunk of Tennessee, 11 Hiimj)!!. 74 ; JMdwin, J., Dickins v. BenI,
10 Pet. 572, 577 ; Richardson, J., Siitclifle v. M'Dowell, 2 Nott & McC. 251, 256; Ed
wards r. Moses, i<l. 433.

(w) Kucker i;. lliller, 3 Camp. 217, IG East, 43, where the ship conveying the cMisi^n-

CH. XIII.] EXCUSES FOR WANT OF NOTICE. 541

So the drawer may have good reason, in some cases, to expect
that a third party will provide the drawee with funds with which
to take up the bill, (a;)

He has a right also to expect that the bill will be lionorcd
when the drawee has given him express autliority to draw,(?/)
provided the bill be drawn within the due limits of the
authority ; (2) or where the bill is drawn under an engage-

ment had been detained, and the cargo so depreciated in value that it was hardly
sufficient to pay the freight. Notice of non-acceptance was held necessary. In Kohins
V. Gibson, 3 Camp. .334, the hill was drawn on a consignment of hides and indigo.
Before presentment for payment, the hides had been sold at a loss, and the indigo
remained unsold. Notice of non-payment was held necessary. This is the state of tiic
case, as appears from the report in Campbell. By the report in East, at the time of
presentment, the cargo was on the way to the drawee, who had received neither bill of
lading nor invoice, in consequence of which the refusal to accept was made. In Rob-
inson V. Ames, 20 Johns. 146, the drawee had received considerable shipments of cotton
from the drawer, and accepted other bills; but on account of a fall in the price of
cotton, the value of the consignments was not equal to the amount of the accepted bills
and the Viill in suit. Notice of non-acceptance of the bill was held necessary. In Wil-
liams V. Brashear, 19 La. 370, 16 id. 77, the bill was drawn on molasses purchased by
the drawee of the drawer, and the molasses had become lost by rain. The bill had
been accepted. Notice of non-payment was held necessary.

(:r) Lafitte v. Slatter, 6 Bing. 623, 4 Moore & P. 457, where the acceptor accepted at
the request of a third party, who promised to take up the bill. Demand was made a
fortnight after maturity, and no notice given. The drawer was discharged. In French v.
Bank of Columbia, 4 Cranch, 141, Marshall, C. J., after stating the rule with respect to
want of funds, said : " This point came on again to be considered in the case of Rogers
V. Stevens, 2 T. R. 713, in which, as between the drawer and drawee, there was no
pretext of a right to draw. It was said that a third person had stated himself to have
funds in the hands of the drawee, that the bill was really drawn on the credit of those
funds, and that loss had been actually sustained from the want of notice. But these
facts formed no part of the case. If they had, it is apparent that, in the opinions of
Lord Kenyon and Justice Grose, they would have been decisive in favor of the neces-
sity of notice, unless that necessity had been dispensed with by the subsequent conduct
of the drawer." In Walwyn v. St. Quintin, 2 Esp. 515, the jury, under the direction
of Eyre, C. J., decided that where the indorser had supplied the drawee with effects,
due notice of non-acceptance must be given to the drawer. The case was, however,
overruled by the full court, in 1 Bos. & P. 652, but this latter case has virtually
been overruled by Scott v. Lifford, 1 Camp. 246, 9 East, 347 ; Cory v. Scott, 3 B. &
Aid. 619.

(y) Austin v. Rodman, 1 Hawks, 194, where a written authority was held to be a
sufficient ground for drawing. See Bloodgood v. Hawthorn, 9 La. 124.

(?) In Dickins v. Beal, 10 Pet. 572. In this case the drawers had no funds in the
hands of the drawees, nor had they made any consignments. Dickins and Taylor
were partners, doing business at Hazehvood, Tenn., and drew two bills in favor of
Beal, in payment of an antecedent debt due the latter by tiie drawers. The following
letters to the cashier of the Branch Bank at Nashville were offered in evidence, and
refused. " Messrs. Dickins and Taylor are authorized. In making myotiatlons, to value

V^L. I. 46

542 NOTES AND BILLS. [CH. XHI.

ment between drawer and drawee ; (a) or, perhaps, where the
drawee has been in the habit of accepting independently of the
state of accounts between them ; (6) or where the drawee had

itn our house in New Orleans, for say $ 10,000, in such form and at such time as they
may think proper, and the same will be duly honored." "Our friend Colonel S.
Dickins is authorized, in negotiating with your institution, to value on our house in New
Orleans, at any time, for such sums as he may think proper, and same will be duly
honored." The drawer was held, although there were laches in giving notice of non-
acceptance. Baldwin, J. said : " It is clear that this transaction was not a negotiation,
within the meaning or intention of these letters ; they evidently referred to negotiations
at the bank, or within the sphere of its operations in the commercial transactions of the
firm; the one referring to Dickins alone was expressly limited to negotiations with
that bank. The remittance of these bills to New Orleans in payment of an antecedent
debt to the plaintiff was in no sense of the term a negotiation of them, and was so
utterly inconsistent with the evident object of the letters, that the most remote expecta-
tion could not have been entertained that they would have been accepted. A mer-
cantile house conducting operations at Memphis and New Orleans would, in the course
of their business, lend their credit in anticipation of consignments, while they would
refuse it to pay the debts due to other persons, these considerations could not escape
the consideration of Dickins and Taylor, when they sought to make Wilco.x and
Feron their creditor, instead of Beal, by such a fraudulent abuse of the letters of
credit. Had these bills come to the hands of an innocent holder in the course of trade,
with a knowledge of these letters, the case would have been different ; or if tlie bank
had negotiated them, there would have been a reasonable expectation that the}' would
have been honored ; but Dickins and Taylor could have entertained no such expecta-
tion. The letters were, therefore, properly excluded." In Orear v. McDonald, 9 Gill,
350, the drawees had given the drawers a written autiiority to draw, and one bill prior
to the one in suit appears to have been honored. Martin, J. said : "It is true that this
authority was limited to three fourths of the market value of the cargo at Now Orleans.
With respect, however, to the first draft, tiiis agreement was not strictly adhered to ;
and the argument is, we think, legitimate, tliat tiiis fact was calculated to impress upon
the minds of the drawers the belief tliat the drawees would deviate from the strict
letter of their authority, if it became necessary for the honor of tlie bill."

(a) Marshall, C. J., French v. Bank of Columbia, 4 Cranch, 141 ; Eijre, C. J., Wal-
wyn V St. Quintin, 1 Bos. & V. 652 ; Shaw, C. J., Kinsley v. Robinson, 21 Pick. 327 ;
Richardson, J., Adams v. Darby, 28 Misso. 162. A drawer witliout funds, whoso
agreement with the drawee is not conclusively shown to have authorized him to expect
an acceptance, under the state of affairs brought about by the mode in whicii he dis-
posed of Ills draft, is not, it would seem, entitled to notice of non-acceptance or non-
payment. Whaley v. Houston, 12 La. Ann. 585.

{h) Baldwin, J., Dickins v. Beal, 10 Pet. 572, 577 ; Frost, J., Yonguc v. Ruff, 3
Strob. .31 1 ; liichardson, J., Adams v. Darby, 28 Misso. 162. Contra, Foard j\ Womack,
2 Ala. .368, where the defendant's counsel requested the court to instruct iho jury, that
if the drawees were in the hal)it of accepting for the drawer, and the latter had good
reasons to believe they would accept the bill, he was eiitilled to notice of dishonor.
The request was refu-!cd, the court telling the jury that a want of funds from the time
of drawing to maturity constituted an excuse for want of notice. The jury found a
verdict for the plaintiff, and the judgment was confirmed. This case is affirmed \ii
Tarvcr v. Nance, 5 Ala. 712.

CH. Xm.] EXCUSES FOR WANT OF NOTICE. 543

promised to accept ; (c) or wliere the drawee has sufiicicnt secu«
rities to cover the amount of whatever acceptance ho might
make. (6?)

Where the drawee has funds in his hands at the time the bill^
was drawn, it will not be sufficient to defeat tlie right of the
drawer to due notice of non-acceptance, to show that the effects
were attached in the hands of the drawee prior to present-
ment for acceptance, because this fact will not show absence of
a right to expect the honor of the bill.(e)

Tlie fact that the drawee owes the drawer a sum of money as
executor has been held not to give the drawer such a right to

(c) See Orear v. McDonald, 9 Gill, 350. But the mere fact of an acceptance will
not show a right to expect the honor of the bill, where absence of funds for the debt to
the time of presentment for payment is shown, as will appear infra, p. .544, and notes.
We should say, however, quite confidently, that a promise to accept will render notice
of non-acceptance necessary.

(d) In Spooner v. Gardiner, Ryan & M. 84, the drawer had no effects in the hands
of the acceptor from drawing till maturity, but the acceptor had received from the
drawer, prior to the bill, several acceptances of the latter, on which money had been
raised by the acceptor. Some of the acceptances had been returned dishonored, and
others were outstanding, ten of which last were for a greater amount than that of the
bill. The acceptances were accommodation acceptances for the drawer's benefit. The
drawer was held entitled to due notice of non-payment. See Campbell v. Pettingill, 7
Greenl. 126, where the drawee, a treasurer of a corporation, accepted to pay when in
funds of the corporation. The acceptor held its negotiable securities and other evi-
dences of debt, to the amount of the bill, but no cash. The acceptor owed the drawer
a small sum. An opinion was expressed that notice of non-payment was necessary.
In "Van Wart v. Smith, I Wend. 219, 227, the drawees held a guaranty of a third party
for £ 10,000, to secure them for their acceptance. The drawee drew a bill for a larger
amount. The drawees had never accepted any bill beyond that value, unless secured
by other securities. There was no security for the bill in suit, and acceptance was
refused. Laches in giving due notice of non-acceptance were excused. In Walwyn v.
St. Quintin, 2 Esp. 515, the payee had lodged title-deeds of a house belonging to hira
with the drawee, for the purpose of raising money, but no money had been raised at
the time the bill was payable. Eyre, C. J. left it to the jury to say whether this consti-
tuted effects in the drawee's hands, and the jury found that it did. It seems to have
been so considered by the full court in 1 Bos. & P. 652. In Ex parte Heath, 2 Ves.
& B. 240, Lord Eldon, after regretting the decision in Bickerdike v. Bollman, and
the difficulties attendant upon it, said, with reference to this case : " There cannot be
a stronger instance than that, in the case referred to, Lord Chief Justice Eyre, a very
good lawyer, left it to the jury to decide, without any solution of the question, whether
title-deeds are effects ; but a rule that securities cannot be effects in any case would be
quite destructive of all commercial dealing. Are not short bills, for instance, effects ?
Is it of no importance to the holder to have notice, that he may withdraw them from
the possession of the acceptor? "

(e) Stanton r. Blossom, 14 Mass. 116.

544 NOTES AND BILLS. [CH. XIH.

draw in liis own name as will entitle him to notice of non-pay-
ment.(/)

So where the draft was drawn on funds which were to he re-
ceived under a contract, but which, by reason of the neglect of
the drawer, or his failure to perform certain duties required, were
not due under the contract, the drawer being aware of the terms
thereof, no notice of non-acceptance was held necessary ; be-
cause the drawer had no reasonable ground to expect the honor
of the bill.(g') Where the drawer agreed with his lessor to make
certain improvements upon an estate rented by him, and subse-
quently hired the payee to perform a part of the work, and then
drew upon the lessor's executors in favor of the payee, to whom
the draft was given in payment for the work, no protest for non-
acceptance was held necessary. (/^)

It seems to have been held that the mere fact of acceptance ifj
sufiicient proof of a right to draw, or a right to expect that the
bill would be honored, although the drawer may have had no
funds. (^) But this cannot always be true, inasmucli as in many
cases the drawer has been held liable without due presentment
for payment, (y) or notice of dishonor, (^■) when the bill was ac-
cepted. The fact of acceptance may be some evidence of a right
to draw where there are other facts tending to show that right,

(/) Yonijiic V. Ruff, .3 Strob. 311.

(</) Wollenwcber v. Kittcrlinus, 17 Penn. State, 389, supra, p. .538, note o.

(Ii) Lc^'fre V. Tliorpe, 12 East, 171, 2 Camp. 310. If this case was not dooided upon
tlie state of the facts as given in the text, or upon the ground that tlie drawer acted
simply as tlie drawee's agent, we do not tliink it can he sujjported. See a statement
of it, siiiini, p 535, note /. Where A, being indebted to B, procured C, who was in-
dci)ted to him, to draw a bill in his favor on B, wiiich was indorsed over to B, in pay-
ment of the d(.I)t due B by A, it was held that C was not entitled to notice, no funds
having been provided. Stewarts. Desha, 11 Ala. 844.

((') Pons V. Kelly, 2 Ilayw. 45. Sec Richie v. McCoy, 13 Smcdcs & M 541, where
it was held that proof of the want of effects on the day of maturity did not throw upon
the defendant the burden of proving that he liad reasonable grounds to believe that the
bill would be paid on presentment; but the court seems to adoj)! the view, that the fact
of acceptance is sufficient to shift the presumption. The rule, we think, is this : If tho
drawer liad reasonable grounds to expect the payment of the bill, on presentment for
[)aymcnt, he is entitled to notice, and perhaps the fact of want of funds at maturity is
tullicicnt, prima fade, to sliow an absence of reasonable grounds.

( /) Kinsley v. Robinson, 21 Pick. 327 ; Mobley v. Clark, 28 Barb. 390.

(k) Hoffman v. Smith, 1 Caines, 157, where it is said by Tlwmjtaoii, J., "The ac-
ceptance by the drawee made no alteration in the rule"; Allen v. King, 4 McLean,
128 ; Valk r. Simmons, 4 Mason, 113 ; Rlictt v. Poe, 2 How. 457. In these last tiro
cases the funds were withdrawn. Gillespie v. Canimack, 3 La. Ann 24S.

CII. XIII.] EXCUSES FOR WANT OF NOTICE. 54.5

and may go to support it ; (/) but the cases above cit.3d are au-
thorities agaiust the view that the acceptance itself is sufficient
proof to establish the right to draw, and to rebut the ])rcsuniption
of the absence of such right, arising from proof of absence of
effects from drawing to maturity, or a withdrawal of them before
presentment for payment.

It has been held, that the fact that the drawer and acceptor had
no funds at the place where the bill was (h-awn payable, and no
reasonable expectation of having any there, was not a sufficient
excuse for want of notice to the drawer ; (m) because the drawer
might have drawn on funds which the acceptor had neglected to
place in the bank.

It seems to have been held, that the mere fact that the drawee
has some funds, however small in amount or little in value, will

(/) In Campbell?;. Pcttingill, 7 Grccnl. 126, Weston, J. said: "There is certainly
ground to contend that the defendants had reasonable expectations that their order
would be accepted [paid ?]. of which its actual acceptance and partial payment might
be regarded as evidence." In this case the question was whether notice of non-
payment was necessary. So Martin, J., in Orear v. McDonald, 9 Gill, 3.50, 3.58, said :
" This promise may be regarded as equivalent to an acceptance of the draft. It has
been urged, however, on the authority of Hoffman v. Smith, 1 Gaines, 157, that the
acceptance of the bill does not render notice of non-payment necessary in a case where
there were no funds. This may be true, but all must agree that, on the question
whether the drawers had a right to expect that their draft would be honored, it is a
fiict of the most commanding character. It rests on the plain proposition, that the
drawers could not presume that the drawees would violate or evade their express en-
gagement. And as a circumstance calculated to generate in the minds of the drawers
the belief that their draft would be paid, it may be considered as conclusive, unless
mitigated or explained." In Hill v. Norris, 2 Stew. & P. 114, 124, Lipscomb, J. said :
" The fact of the existence of a running account between two men engaged in business,
and the acceptance of a bill by one of them for the other, affords a twofold ground of
presuming the drawer believed the bill would be honored ; the fact of their accounts
being unclosed is one, and the acceptance is the other. Indeed, it is difficult to
arrive at the conclusion that the drawer did not feel himself authorized to draw, if the
bill has been accepted." An acceptance may be made under the belief, or the prom-
ise, that the drawer will put the acceptor in funds, which if he fail to do, no notice is
requisite. Rhett v. Poe, 2 How. 457, where the funds were withdrawn, after accept-
ance, under such an agreement. Gillespie v. Cammack, 3 La. Ann. 248. In English
v. Wall, 12 Rob. La. 132, where the bill was drawn, waiving acceptance, under such a
promise.

(m) Harwood v. Jarvis, 5 Sneed, 375. Sed quare. As against the drawer, the
holder was bound to make a demand at the place specified, and a demand on the
acceptor at any other place would have been unavailing. So it might appear that
want of funds at the only place where demand could have been made, and no reason-
able expectation of any there, would be a sufficient excuse

Vol. I.— 2 K

546 NOTES AND BILLS. [CH. XIIL

ontitle the drawer to notice. (m) The grounds on which this must
rest are, that the excuse of want of funds is to be construed
strictly, and not to be extended ; and also the difficulty of exam-
inino- the state of the accounts in each case to ascertain what and
on which side the balance lies ; or the fact that the drawer may
be subject to injury by the loss of some of his funds. (o) But it

(?i) Thackray v. Blackett, 3 Camp. 164. In this case, when two bills were drawn,
the drawer had no effects in the hands of the acceptors, but before the maturity of
either, the acceptors owed him an amount less than one of the bills. Held, that the
drawer was entitled to notice of non-payment. Lord EUenboroitgh, C. J. said : "The
excuse of want of effects in the acceptors' hands, I think, is equally unavailing as to
both bills. I cannot make any distinction between the law. If there was an open
account between the parties, and the acceptors were indebted in any sum to the drawer
before the bills became due, I cannot say that he must necessarily have been aware
beforehand that either of them would be dishonored." See Blackhan v. Doren, 2
Camp. 303, cited supra, p. .539, note p. In Hill v. Norris, 2 Stew. & V. 114, the judge
charged the jury that, although there was a small balance, yet if the latter was too in-
considerable to induce a reasonable expectation that the bill would be paid, no notice
of non-jiayment need be given to the drawer. This charge was held incorrect, and the
judgment for the defendant reversed. It will be seen that the bill had been accepted.
In Lacoste v. Harper, 3 La. Ann. 385, the bill was for $2,777, and the amount of
funds, $883. Slidell, J. said: "We are not aware of any authority extending the
exemption of the necessity of notice to cases where the drawee had funds in his hands
at the maturity of the bill. Even if the funds be insufficient to cover the bill, the
drawer is entitled to notice of dishonor." In Wollcnweber r. Ketterlinus, 17 Penn.
State, 389, 399, Coulter, J. said : " If the drawer has any funds in the hands of the
drawee, no matter whether they be sufficient to meet the draft or not, he is entitled to
notice, because he may suffer injury to some extent for want of it." Richardson, J.,
Sutcliffe V. M'Dowell, 2 Nott & McC. 251 ; Edwards v. Moses, id. 433.

(o) In Thackray v. Blackett, 3 Camp. 164, Lord EUmhorowjh. C. J. seems to have
given this as a reason. In Legge v. Thorpe, 12 East, 171, he said : "It has often hap-
pened to me, sitting at Nisi Prius, to be obliged to take an account between the parties,
in order to see whether there were any, and what funds, or, more pr()i)or]y speaking,
whether the drawer had probable funds left in the drawee's hands to answer the bill ;
whereas, if the courts had adhered to the original simple rule, all such inquiries would
have been unnecessary, and no doubt would have existed in any case." It will be seen,
by the remarks of Coulter, J., in Wollcnweber v. Kefterlinus, 17 Penn. State, 389, 399,
cited supra, note n, that he gave as a reason, that the drawer, without notice, would at
least be liable to some injury. In Hill v. Norris, 2 Stew. & P. 114, 121, Lipscomb, J.
said : " If indeed the court were to assume the province, or should direct the jury to
determine, how far the assets in the hands of the drawee mu.st be reduced before notice
to the drawer could be dispensed with, it would he found exceedingly difficult, and I
might witli truth say that it would be impracticable to fix on any standard of depre-
ciation. The instructions of the court below were to the effect, that, if there was a very
small amount of funds in the hands of the drawee, that it did not entitle the drawer to
notice ; and the court seems to have drawn the conclusion, that, if the amount of funds
60 in the hands of the drawee was small, that the drawer could not be injured by want
of notice. It seems, however, to us, that tlie rea.son of the rule wouhl a])ply, and thot,

CH. XIII.] EXCUSES FOR WANT OF NOTICE. 547

is strongly urged, that where all transactions between the parties
have ceased, and there is nothing to justify a draft but a balance
of one penny, it would be sporting with the understanding to say
that a creditor for this balance who should draw for ,£1,000
would be in a situation substantially different from that in whicii
he would be were he the debtor in the same sum.(j9) The true

although there might be but a small amount of assets, tlie drawer ought to have notice,
to enable him to take steps to secure that amount, whatever it might be. I admit, that
if there were circumstances to satisfy the jury that the drawer committed a fraud in
drawing on the drawee, and that he knew that his bill would be dishonored, there
would be much force in the argument that he ought not to be permitted to take shelter
from the consequences of his fraud by intrenching behind a very small amount of assets
tliat might be in the hands of the drawee. But I must again repeat, that I have not
known a case, where there was any amount of funds in the hands of the drawee, that
it has been ruled that the drawer was not entitled to notice."

{p) Marshall, C. J., Hopkirk v. Page, 2 Brock. C. C. 20, .34, where the drawee had a
balance in his hands in favor of the drawer to the amount of 16s. lid., the bill being
£ 246. The drawer was held, without any notice of non-acceptance or payment. The
learned judge said : " In attempting to show that notice of the dishonor of this bill was
unnecessary, because the drawer had no effects in the hands of the drawee, the holder is
met in limine by the fact, that this letter shows a balance in his favor of 16s. lid., and
the exception under which the plaintiff withdraws himself from the general rule is, that
the drawer had at the time no effects in the hands of tlie drawee. If we may depart from
the letter of the exception, there is no point at which to stop ; and if notice may be dis-
pensed with when a small sum is in the hands of the drawer, it may also be dispensed
with when a large sum is in his hands, provided that sum be one cent less than the bill
is drawn for. I am aware of this argument, but think it more perplexing than con-
vincing." So in the Matter of Brown, 2 Story, 502, 520, Story, J. said : " But it is
said, that, in cases of bills, due presentment and due notice are necessary whenever the
drawer has any funds in the hands of the drawee ; and the same reasoning applies to
cases of checks. Now I deny both the premises and the conclusion. In the first place,
as I understand it, the true doctrine is this, that if the drawer has a right to draw, in
the belief that he has funds, or in the expectation that he shall have funds at the time
of the presentment for acceptance, by reason of arrangements with the drawee, or put-
ting his funds in transitu, then and in such cases he is entitled to due notice. But accord-
ing to the doctrine now contended for, if the drawer knows that he has but one dollar
in the hands of the drawee, and he has no expectation of any more being added, and
has no right to believe that a bill for more will be honored, he may, nevertheless, draw a
bill on the drawee for $ 10,000 ; and if it is dishonored, as he knows it will be, he is
entitled to strict notice ; whereas, if he had not one dollar in the drawee's hands, he
would not be entitled to any notice at all. Now I do not understand the law to involve
any such strange anomaly, not to call it an absurdity. In each case the same reason
applies ; the draft is a fraud upon the holder ; and in each case a meditated fraud shall
not be sheltered behind a rule intended to protect the innocent and trustworthy." In
Blankenship v. Rogers, 10 Ind. 333, an order was drawn for $96, on which payment
of $ 38 was indorsed, and a protest made for the remainder. No notice of non-pay-
ment was held necessary. So in v. Stanton, 1 Hayw. 271, where the drawee paid

over the fund? which he had, no notice, as to the residue, was held necessary. See
Smith V. Thatcher, 4 B. & Aid. 200.

548 NOTES AND BILLS. [CH. Xm.

inquiry here, as in the other cases, must be whether the drawer
was justified in drawing by a reasonable expectation that the bill
would be honored.

There seems to be some little confusion with regard to the time
when the reasonable expectation may be supposed to exist in the
mind of the drawer. Thus, it has been said that actual notice
is useless, and therefore unnecessary, only when, at the time of
draicing", the drawer has no reason to expect that his bill will be
paid.(^) But we think this view is open to much objection, and
should say that the reasonable expectation depends, not on the
state of things that exists at the time the bill is drawn, but upon
the circumstances which exist at the time when it should be
presented. (/•)

Thus, although the drawer may have ample funds in the hands
of the drawee at the date of the bill, or of the acceptance, yet,
if he subsequently withdraws all his funds, (s) provided such

(7) MargJiall, C. J., French r. Bank of Columbia, 4 Cranch, 141, 158. See the re-
marks of Lord EUenhorough, C. J., in Orr v. Maginnis, 7 East, 359. See Richie v.
McCoy, 13 Smedes & M. 541.

(?•) Dnrsei/, J., Eichelberger v. Finley, 7 Harris & J. 381, 386. In Orear v. McDon-
ald, 9 Gill, 350, 357, Martin, J. said : " The right to demand and notice does not de-
pend upon the fact that the drawers had, at the maturity of the draft, funds in the
hands of the drawees, as ascertained by ulterior events, adequate to its payment.
There is to be found in the adjudications on this subject no sucli stringent rule. On
the contrary, we consider the principle as now established to be, that, if the drawers, at
the time wlien the bill should have been presented, had the right to expect, reasoning
upon the state of facts connected with the transactions as they then existed between the
drawers and themselves, that their bill would be honored, they were entitled to de-
mand and notice. The drawing of a bill under such circumstances is not to be
treated as a fraud."

(s) Rhett V. Poe, 2 How. 457, where the drawer had funds at the time of the accept-
ance in the acceptor's hands, but subsequently withdrew them, agreeing to provide
others at maturity, which he failed to do. The drawer was held, without notice of non-
acceptance. So Valk V. Simmons, 4 Mason, 113 ; Si)angler ?'. McDanicl, 3 Ind. 275,
which was a suit on a non-negotiable draft. Dorset/, J., Eiclielbcrgcr v. Finley, 7 Harris
& J. 381, 386. Contra, Orr v. Maginnis, 7 East, 359, 3 J. P. Smith, 328. In this
case, the bill was drawn for £ 172. At the time of drawing the drawee had some funds,
how much did not aj)pcar. The drawer was a master of a vessel, who drew on account
of supplies furnished his .sliip. The bill was i)rescntcd for acceptance on July 19th,
and acceptance was refused, but no notice was given. Some time in M;iy, the drawee
had settled with the drawer, jiaying over to him the balance due, whicli amounted to
£ 116. The bill was again presented for payment on Oct. 22d, and notice of the dis-
honor duly given. Tlic drawer was discharged for the neglect to give notice for non-
acc(!ptance. Lord E/lcnhorouf/h, C. J. said : "If tlie drawer have eflfccts at tlu; time, it
would be very dangerous and inconvenient, merely on the account of the sbifting of a
balance, to hold notice not to bo necessary. It would be introducing a number of

(

CH. XIII.] EXCUSES FOR WANT OF NOTICE. 549

withdrawal is prior to maturity or presentment ; (t) or, having
funds on the way, if he intcrcc{)ts them and prevents them from
coming into the hands of the drawee or acceptor, — he cannot
be said to have any reason to expect the bill would be honored,
and therefore he is not entitled to notice. (r^)

So, perhaps, although the drawer at tlie time he draws the bill
may have no effects, and no reason to expect his draft will be
honored, yet, if he should place adequate funds in the hands of
the drawee before presentment, he would be entitled to require
due presentment and notice before he could be held liable. (f)

And where there have been no funds, and the drawer has no
right to expect that the bill would be honored, notice to him is
unnecessary, although subsequent to the presentment the drawee
may have had funds. (t^)

We should say that the mere fact that the drawer had no ef-
fects, from the time the bill was dated till maturity, would be

collateral issues in every case upon a bill of exchange, to examine how the account
stood between the drawer and drawee, from the time the bill was drawn down to the
time it was dishonored." Dors(>y,J., in Eichelberger v. Finley, 7 Harris & J. 381, 385,
mentions this case as " a memorable illustration " of the fact that the essence and mean-
ing of the rule laid down in Bickerdike v. BoUman had lieen lost sight of. He also
said: "If a case can be imagined in which a want of effects, with a knowledge in the
drawer that his bill would be dishonored, dispenses with notice, it might well be sup-
posed this was that case. It does not appear that the drawer, at the time the bill was
drawn, before or subsequently, ever had credit with the drawees for one fiirthing more
than to the amount of the effects in hand. Having, then, withdrawn the only fund
which could sustain the honor of his bill, did he not know, by anticipation, the fact
of its non-acceptance ■? " See also the renaarks of Lord Ellenhorough, C. J., cited
infra, note v.

(t) Adams v. Darby, 28 Misso. 162.

(m) Valk V. Simmons, 4 Mason, 113.

{v) Dorsey, J., Eichelberger v. Finley, 7 Harris «Sb J. 381, 386. In Hammond v.
Dufrene, 3 Camp. 145, the bill was drawn for £301. At the time of drawing and
of accepting there were no funds, but before maturity the drawer sent the acceptor
£ 400. The drawer was held entitled to notice of non-payment. Lord Ellenhorough,
C. J. said : " I think the drawer has a right to notice of the dishonor of a bill, if he
has effects in the hands of the acceptor at any time before it becomes due. .... I am
aware that the inquiry has generally been, as to the state of accounts between the
drawer and drawee when the bill was drawn or accepted ; but I conceive the whole
period must be looked to, from the drawing of the bill till it becomes due, and that no-
tice is requisite, if the drawer has effects in the hands of the drawee at any time during
thp^ interval."

{w) Cathell v. Goodwin, 1 Harris & G. 468, where the drawee told the holder that he
expected funds shortly, and when they arrived he would pay the bill. The funds did
subsequently arrive, though at what time did not appear. No subsequent presentment
was made, and no notice given. Held, that the drawer was liable.

650 NOTES AND BILLS. [CH XIH.

sufficient, j^rima facie, to excuse want of presentment for accept-
ance, for payment, or for notice of either ; and there are some
authorities which adopt this view, (a;) although it may be in con-
flict with others. (2/) It will then be incumbent for the drawer to
set up in defence such circumstances as will entitle him to a right
to have expected that his draft would be honored, (c) There can
be no hardship in this, for it would be easy for the drawer to
show such circumstances if they exist, for they must be facts par-
ticularly within his own cognizance ; and it would be very diffi-
cult for the plaintiff to prove the negative, or that there were no
such circumstances.

[x) Dunum v. Hendrick, 4 Texas, 495 ; Cook v. Martin, 5 Smedes & M. 379 ; Col-
lier, C. J, Tarvcr v. Nance, 5 Ala. 712. In a suit on a protested order, the plaintiff
is not bound to allege and prove notice of non-payment, if he allege and prove that,
at the date of the order, the drawee had no effects of the drawer in his hands, except
the amount paid and credited on the order on presentment. Ibid. In Kemblc v. Mills,
1 Man. & G. 757, 767, Tindal, C. J. said : " Upon general demurrer, it is sufficient if
we see that the plaintiff has excused himself upon the broad ground tiiat the defendant
had no assets in the l)ankers' hands ; that is the ground upon which the early cases were
decided, and if the defendant wished to object to the form of tlie declaration, he sliould
have demurred specially." So Maule, J., Kemble v. Mills, 1 Man. & G. 771, infra,
note 2. In Fitzgerald v. Williams, 6 Bing. N. C. 68, Tindal, C. J. said : ' The plain-
tiff having averred, as an excuse for not giving notice of the dislionor of the bill,
that the defendant had no funds in the acceptor's hands, assigned a sufficient ex-
cuse, if he had stopped short there; for if the defendant had no funds in the hands of
the acceptor, he was not damnified ; if he was, after the issue he has taken upon tho
whole allegation, the proof would have come more properly from him." So Parke, B.,
in Carter v. Flower, 16 M. & W. 743, 750, referring to these cases, said : " Lord Chief
Justice Tindal intimated, and we think correctly, that it would have been sufficient if
the ])laintiff had stopped with the averment of want of effects; and tlie allegation, that
no damage was sustained, seems to have been treated by the court as immaterial.
We do not conceive that the court attributed any weight in giving their judg-
ment, in Kemble v. Mills, to the averment that the defendant had sustained no damage.
The Lord Chief Justice and Mr. Justice Maule expressly excluded that consideration,
and rested on tlie broad ground, that the averment of want of assets was suihcicnt. In
an action against the drawer of a bill, this form, therefore, must be deemed sufficient, at
least on general demurrer." See the remarks of lidi/tci/, J., cited infra, p. 551, note c.

(y) Wlictlier the fact of absence of funds at maturity is sufficient to show absence of
a right to expect the honor of the bill, would seem to be doubteil or denied, in Kichio
V. McCoy, 13 Smedes & M. 541, where it was held that it was not, in the case of an
acce|)'ed hill. See supra, p. 544, note i.

(z) Durrum v. Hendrick, 4 Texas, 495 ; Cook v. Martin, 5 Smedes & M. 379 ;
CkJlif.r, C. J., Tarvcr v. Nance, 5 Ala. 712. In Kemble i). Mills, 1 Man. & G. 757, 771,
Maule, .]. said : " When it is sliowii that the drawee had no assets in the hands of tho
drawer, that is generally sufficient. Where there is anything to take the case outof l\io
general rule, that should come from the other side." See the remarks of Tiiulal, C. J.,
cited supra, note x.

CH. XIII.] EXCUSES FOR WANT OF NOTICE. 551

It would seem to be usual, however, to aver both want of
effects, absence of a right to draw, and a denial of injury. The
latter has been held unnecessary, because the want of effects
itself is prima facie proof that there has been no injury ; (a) and
we can see no good reason why the absence of effects is not pre-
sumptive proof of an absence of a right to draw. So also, where
a want of funds and absence of injury is alleged, it is not neces-
sary to aver that the defendant had no reasonable expectation
that his bill would be honored. (6)

It has been intimated, that if the drawer can prove hijury, he
will bo entitled to a discharge from liability, at least proportion-
ably, (c) We are not aware of any express decision to tliis effect,
and should say that the only reason to support it would be the
principle that tlie excuse of which we are treating is not to be
extended ; or the supposition that, if the drawer has no right to
draw, he cannot suffer an injury from which due presentment
and notice could save or protect him.(c/) The injury has sprung
from, and is the consequence of, his own act, which, if it be not ab-
solutely fraudulent, must be considered as at least wrongful ; and
he should, we think, suffer for that for which he alone is to blame.

(a) Cook V. Martin, 5 Smedes & M. 379. Nor is it necessary to prove it, if alleged,
id. In Fitzgerald v. Williams, 6 Bing. N. C. 68, the plaintitF averred that the defend-
ant had no funds, and had sustained no injury. The defendant pleaded that he had
sustained damage, because the acceptor had promised to provide for the bill. Held, not
incumbent on the plaintiff to prove that the defendant had sustained no damage. See
the case and remarks cited supra, p. 550, note x. But in Baxter v. Graves, 2 A. K.
Marsh. 152, it seems to have been held that the plaintiff should show that the defend-
ant, a drawer, suffered no injury.

(6) Thomas v. Fenton, 5 Dow. & L. 28, Coleridge, J. said : " The reasonable expec-
tation of assets entitles to notice only on the ground that the drawer, under such cir-
cumstances as raise that expectation, may be damnified by the want of it ; to allege,
therefore, that he has sustained no damage removes the ground on which notice is
necessary. It may also be argued that the plaintiff is not bound, in the first instance,
to allege that which cannot be within his knowledge, and that such a fact should prop-
erly come by way of plea."

((■) la Cory v. Scott, 3 B. & Aid. 619, Baijlftj, J. : " The case of Bickcrdike v. Boll-
man is a right decision ; but wherever the drawer can show that the want of notice may
produce any detriment, the case will be very ditlerent. Where he has no effects in the
hands of the acceptor, that is prima facie evidence that he will not be injured by the
want of notice, but that prima facie presumption may be rebutted ; and if the drawer
can show actual prejudice, it takes it out of the case of Bickcrdike i.'. Bollman." See
the remarks of Tindal, C. J., cited supra, p. 550. note x. This is the reason given in
the cases cited supra, p 546, notes n, o, which hold that proof of any effects whatever
in the drawee's hands will entitle the drawer ta notice.

(d) In some of the cases cited supra, p. 547, note/), there might have liecn a slight
injury, and no notice was necessary. See also the cases on checks, infra, p. 552.

552 NOTES AND BILLS. [CH. XHI.

The same rules are applicable to the drawer of a check, who is
liable without presentment or notice, if lie has no funds in the
bank upon which the check is drawn. (e) In our chapter on
Checks we consider the law of presentment in regard to them ;
here we will only say, that the exception should be construed
more liberally with regard to checks ; at least where the check is
drawn on a public banking corporation. These corporations do
not receive goods on consignment, therefore there can be no rea-
son to expect that the check will be honored on any such grounds
as this. There would seem to be scarcely any reasonable grounds
to expect payment, and, consequently, any right to draw a check,
unless the bank had sufficient funds to pay it.(/) The bank has

(e) In the following cases no presentment was held necessary, the drawer having no
funds. Gushing r. Gore, 15 Mass. 69 ; Franklin v. Vanderpool, 1 Hall, 78; Healy
V. Oilman, 1 Bosw. 235 ; Coyle v. Smith, 1 E. D. Smith, 300. Contra, Radcliff, J.,
Cruger v. Armstrong, 3 Johns. Cas. 5. In the fallowing cases no notice of non-pay-
ment was helil necessary. Eichelberger v. Finley, 7 Harris & J. 381 ; Iloyt v. Soeley,
18 Conn. 353 ; Fitch v. Redding, 4 Sandf. 130 ; Coylc v. Smith, I E. D. Smith, 400 ;
Healy v. Oilman, 1 Bosw. 235; Kemble v. Mills. 1 Man. & O. 757.2 Scott, N. R.
121, 9 Dowl. 446; In the Matter of Brown, 2 Story, 502; Radcliff, J., Cruger v.
Armstrong, 3 Johns. Cas. 5. See Case v. Morris, 31 Penn. Slate, 100. So wliere the
drawer withdraws his funds before the time when the check should have been presented.
Coyle I'. Smith, 1 E. I). Smith, 400, where at the date of the check the drawer had a
few dollars on deposit. Subsequently he had made a deposit, but withdrew it the ne.xt
day. No presentment and notice were held necessary. SutclitTe v. McDowell, 2 Nott
& McC. 251. In this case, however, it appeared that the drawer withdrew his deposit,
that the check might be dishonored. In Brown v. Lusk, 4 Yerg. 210, the drawer was
held entitled to notice, although he had no funds in the bank, having drawn for the ac-
commodation of the payee. Sed quoere.

(f) We are not av/are of any authority for this. In Edwards v. Moses, 2 Xott &
McC. 433, all the facts tiiat appeared were, that at the time when the check should liavo
been presented, the drawer had withdrawn all his funds. Richardson, J. said that it
was a mere case of overdrawing, and due presentment and notice were held necessary.
But we doubt the authority of this case. In Cruger v. Armstrong, 3 Johns. Cas. 5,
the check was drawn for $ 2,500. On the day of its date the bank paid out checks of
the drawer to the amount of $ 3,500, and at the close of banking hours a balance woa
left of $ 400. Presentment was held necessary, Lfwis, C. J dissenting. The authority
of this case may be somewhat doubtful. Radcliff, J. said that presentment was neces-
sary, though notice might not have been, and founds his oijinion on this, which is clearly
incorrect. Kent, J. said : " In the present case there is no such demand proved, nor
is there anything so peculiar in this case as to take it out of the general rule. Il can-
not be considered as a check fraudulently drawn, without cflTects in the hands of tho
banker. TIk; presumption is, that the check would have been paid if diligently ])rc-
scnted ; nt least, there is not evidence sufKcicnt to justif)' a resort to the drawer without
having made the experiment." The answer to this may perhaps be, that the drawer is
bound to knf)W what his balanci; in the bank is, and as the holder is not bound lO pre-
sent a check, in any case, until the next day, and as there were checks oulstandii'g, tho
amount of which, added to th.-it of the check in suit, exceeded his balance, the prcsump

CH. XIII.] EXCUSES FOll WANT OF NOTICE. 553

no right to allow any i)arty to overdraw ; (g-) consequently the
drawer cannot expect it ; and where there are funds sufficient to
pay a part only of the check, it is difficult to see how the drawer
can be considered as having a right to expect that the check will
be paid, inasmuch as the bank has a right to have the check
delivered up to it on payment, as a voucher, and the holder
would be unwilling to give it up on part payment only, because
it would be surrendering the evidence of the drawer's indebted-
ness to him. (A) It would seem, also, that the fact tiiat the bank
held in pledge security belonging to the drawer would not alter
the case, since checks are supposed to be drawn on cash actually
on deposit ; unless the bank had promised on this security to pay
the checks.

It has been held that this excuse is only applicable to the

tion of payment would have been slight. A small balance will not entitle the drawer
to presentment and notice. Coylc v. Smith, 1 E. D. Smith, 400. In the Matter of
Brown, 2 Story, 502, where there were two checks to the amount of $ 1,430, and a bal-
ance of $ 30 on the day wiien they were drawn. Eichelberger v. Finley, 7 Harris & J.
381, where there were two checks, one for $ 1,450, and the other for $ 1,500, both dated
Marcli 26. At the date, the drawer's balance in the bank on which they were drawn
was $ 500, on the next day $ 400, and for several days after from $ 200 to $400. The
checks were presented June 3. In May, the bank appropriated all the funds of the
drawer to the payment of a debt due by him to the corporation, in consequence of cer-
tain stock transactions.

(g) In Eichelberger v. Finley, 7 Harris & J. 381, 387, Dorsey, J. said, after referring
to the cases on bills of exchange : " But it is conceived that, waiving all exceptions to
the soundness of these decisions, they bear no application to the case now under con-
sideration.* They were made on transactions between individual correspondents who
may have had a mutual confidence and credit, and were perfectly com[)etent to honor
each other's bills, drawn either with or without effects. Not so as to tlie officers of the
public banking institutions in this State. With them tlie customers of the Ijank liave
no acconmiodation credit, and without a gross violation of their trust, they can honor
no check or draft upon them beyond the amount of deposits standing to the credit of
him by whom such check or draft may be drawn."

[h] In the Matter of Brown, 2 Story, 502, 519, Story, J. said : " Now in the case of
a check, I take it to be clear, that the drawer implicitly engages that, at the time when
the check is due and payable, he has, and will have then, and at all times thereafter,
sufficient funds in the bank to pay the same, upon presentment ; and by the draft, he
appropriates those funds absolutely for the use of the holder. Now the bank is not
bound to pay. unless it is in full funds ; and it is not obliged to pay, or to accept to pay,
if it has partial funds only, for it is entitled to the possession of the check on i)ayment ;
und indeed, in the ordinary course of business, the only voucher of the bank for any
payment is the production and receipt of the check, which the bolder cannot safely part
with, unless he receives full payment, nor the bank exact, unless under the like cir-
cumstances. The holder is not bound to accept part payment, even if the bank is
willing to pay in part, for he has a claim to the entirety."

VOL. I. 47

554 NOTES AND BILLS. [CH. XHI.

drawer, and does not apply in the case of an indorser, because
the latter has no concern with the accounts between drawer
and drawee, and as he has the drawer liable over to him, he
may be injured by want of the notice ; and consequently, the
indorser is entitled m all these cases to due presentment and
notice. (?)

Though this would be true in general, yet there may be excep-
tions. Thus, where the indorser, at the time he indorsed, knew
that the drawer had no right to draw, and the latter was under
no obligations as regards the former to take up the bill, it may
well be doubted whether a demand or notice would be necessary
to charge the indorser. (j) Certainly, if the drawing were a
fraud, and the indorser at the time of mdorsing was aware of
that fact, he could have no remedy over against the drawer, for
he must be considered as a party to the fraud.

In concluding this particular subject of excuse, we cannot but
think that much of the obscurity and confusion which exists is
owing to the desire manifested by the courts to lay down and
adhere to a fixed and inflexible rule, — that notice is in all cases

(?) Wilkes V. Jacks, Peake, 202 ; "Warder v. Tucker, 7 Mass. 449 ; Mohawk Bank
V. Broderick, 10 Wend. 304, 13 id. 133, a check case; Scarborough v. Harris, 1 Bay,
177; Fotheringham v. Price, id. 291 ; Boi/le, C. J., Ralston v. Bullitts, 3 Bibb, 261,
263 ; Deniiiston v. Imbrie, 3 Wash. C. C. 396 ; RamduloUday v. Daricux, 4 id. 61, where
Washington, J. said: "No case has ever yet gone so far as to dispense with notice tc>
indorsers. And it is most obvious that the reason upon which the rule in Bickerdiko
T. Bollman proceeded is inapplicable to the case of an indorser. A man who draws a
bill when he knows that he has no right to do so, and then parts with it for a valuable
consideration, is, to say the least of him, guilty of legal fraud, and consequently is not
entitled to the benefit of notice. Besides, he cannot be injured from the want of it, as
he has no person to look to but the drawee, and therefore cannot sutler if he had noth-
ing in his hands on which to draw. But what is all this to an indorser who has com-
mitted no fraud, actual or constructive, and who, having ;i claim to indcmnily against
every person upon the bill above himself, ought to be placed in a situation to secure
himself if he can 1 " See Carter v. Flower, 16 M. & W. 743, Parke, B.

(_;■) In Sisson v. Tliomlinson, 1 Selw. N. P., 11th ed., 257, Lord [Clleuhorough , C. J.
ruled, tiiat "where the indorser has not given any consideration for a bill, and knows
at the time that the drawer has not any ctfccts in the hands of the drawee, he, the in-
dorser, is not entitled to notice of the non-])ayment." So Farmers' Bank v. Vanmeter,
4 Rand. Va. 553, where the indorser knew, at the time of indorsing, that tiie drawer had
no right to draw, or to expect payment. The point arose in Fenwick v. Sears, 1
Cranch, ^59, but was not decided. In Corney i;. Da Costa, 1 Esp. 302, Biilhr, J. said :
"That it was undoubtedly necessary that an indorser of a note should have notice of
the default of the maker in payment. But that was only the case where there were
effects of the indorser in the maker's bands, and that he miglit suffer from tie want o/
Buch notice ; but when there were no effects, no notice was necessary."

CH. XIII.] EXCUSES FOR WANT OF NOTICE. 555

necessary, to which all circumstances must bend, — rather than
to allow an exception, once well established, to be moulded and
varied by the changing circumstances of each case. It would be
better to overrule the original case at once, than to confnie it
withhi artificial limits, or to so pare it away by exception after
exception, that the reasons on which the rule itself rests are lost
sight of and disappear.

Questions closely connected with the topic which we have just
been considering have arisen in the case of accommodation pa-
per. A party may request another to draw upon him, although
there may be no funds in his hands, and no expectation of hav-
ing any ; and the bill may be drawn at such request, and then,
when it is accepted, the acceptor may be able to negotiate it, and
thereby raise money on the strength and credit of the drawer's
name. In such case the drawer clearly has a right to draw,(A')
and, in accordance with the rule already laid down, is entitled to
demand that regular presentment be made, and that due notice
be given, in case of dishonor. (/) There is also this additional
fact to be taken into consideration, that the acceptor, in such
case, is liable to the drawer, and the latter may be injured by the
neglect to receive prompt notice, and so be deprived of some op-
portunity which he might otherwise have had of indemnifying
himself.

The same rule applies where the drawer drew for the accom-
modation of another party, as an indorser,(w) for instance, or a
co-drawer. (?i)

(k) Marshall, C. J., French v. Bank of Columbia, 4 Cranch, 141.

{I) Sleigh V. Sleigh, 5 Exch. 514, where the drawer paid a part of the bill, knowing
that he had been discharged by laches in presentment and notice ; and it was held that
he could not recover the amount of the acceptor in an action for money paid to his use.
See Ex parte Heath, 2 Ves. & B. 240 ; Bank of Louisiana v. Morgan, 13 La. Ann. .598 ;
Shirley v. Fellows, 9 Port. Ala. 300, where there were no funds in the hands of the
acceptor, — notice of non-payment was held necessary ; Sherrod v. Rhodes, 5 Ala. 683,
where it was held tliat it made no difference that the drawer owed the acceptor a sum
equal to the amount of the bill, since it did not appear that the bill was drawn in pay-
ment of the debt.

(m) Whitfield v. Savage, 2 Bos. & P. 277 ; Cory v. Scott, 3 B. & Aid. 619 ; Norton
V. Pickering, 8 B. & C. 610, where neither tiie drawer nor indorser had any effects in
the hands of the acceptor; Curry v. Herlong, 11 La. Ann. 634; Brown v. Lusk, 4
Yerg. 210. But the case might well be different, where acceptance had been refused,
the drawer having no pretence of a right to draw, and the accommodated party know
ing this fact.

(n) Miser v. Trovinger, 7 Ohio State, 281, where it was contended that the unity of

5'oQ NOTES AND BILLS. [CH. XIH.

The indorser of a bill for the accommodation of the drawer,(o)
or for another indorser,( p) would, for a still stronger reason, be
entitled to regular demand and notice ; unless the indorsement
were proved to have been made under circumstances clearly
showing that the drawer had no right to draw, or to expect the
honor of the bill ; {q) and w^e should also say, unless these cir-
cumstances were known to the indorser.

A party may likewise indorse a note for the accommodation of
the maker, and this being, as we have seen, very analogous to
drawing a bill on the maker and an acceptance by the latter, the
same rule applies, and the indorser is entitled to notice. (r) So

interest was such that, it being uunecessary to give notice to the accommodated party,
rendered it unnecessary to give notice to the others.

(o) Warder v. Tucker, 7 Mass. 449. See Rea v. Dorrauce, 18 Maine, 137, where
an indorser was discharged, presentment having been made the day after maturity.

(p) Brown v. INIaffey, 15 East, 216, where the drawer, acceptor, and two oilier indors-
ers besides the defendant, accommodated the last indorser. It appeared that the defend-
ant was not aware, when he indorsed, of the absence of effects in the acceptor's hands.

(q) Farmers' Bank v. Vanmeter, 4 Hand. Va. 553 ; Sisson i-. Thomlinson, 1 Selw.
N. P., Uthed., 257.

(r) French v. Bank of C, 4 Cranch, 141 ; Smith i'. Becket, 13 East, 187 ; Sandford
». Dillaway, 10 Mass. 52 ; Jackson v. Richards, 2 Caines, 343; Buck v. Cotton, 2
Conn. 126 ; Holland t'. Turner, 10 id. 308 ; Groton v. Dallhcim, 6 Greenl. 47G, where
the indorser was discharged because presentment was made the day after maturity, and
no notice given for more than three months ; Bogy ?•. Kcil, 1 Misso. 743 ; Denny v.
Palmer, 5 Ired. 610. The contrary doctrine appears to have been held in I)e Berdt v.
Atkinson, 2 H. Bl. 336, where the indorser at the time of indorsing knew that the
maker was insolvent. The demand was made the day after maturity, and no notice
given for five days. The indorser was held. Lord C. J. Eyre's opinion proceeded
mainly on the ground that the notice was absolutely useless where the indorser was
well aware of the maker's insolvency at the time of indorsing. Bullcr, J. said : " Here
it is plain that the indorser lent his name merely to give credit to the note, and was
not an indorser in the common course of business. It is no answer to say that he re-
ceived no benefit; he never meant to receive any." Rooke and Ilcath, JJ. simply con-
curred. This case was decided in A. D. 1794, and in seventeen months after a similar
question arose in Nicholson ;;. Gouthit, 2 II. Bl. 610, the facts of which case were as
follows. The maker was insolvent, and the defendant indorsed for his accoinmodation.
Just before maturity the indorser, learning that the maker had made no jirovision for
the payment of the note at the banker's at whose ])lace of business the note was pay-
able, desired the i)anker to refer the party presenting the note to him, and he would
pay it, as he then \vm\ a fund to meet it. The note was not presented till three days
after maturity, and if presentment had been made at the proper time, it would have
been paid ; but not having been so presented, the defendant had paid away the money
wliich he held for that purpose. The indorser was discharged. Lord CI. /'.'yiv, de-
livering the opinion, and Heath and J!ook-c, JJ. concurring. Althongli the circum-
Btances of the two cases were not precisely similar, yet there was not suflicieni dilVer-
encc to reconcile both. In both the maker was insolvent, and even if the insolvency

CH. XIII.] EXCUSES FOR WANT OF NOTICE. 557

it would be where the indorser mdorses for the accommodatioa
of a prior party or a third person. (s)

The case is different where the drawer5(^) or the indors-

were not actually known to the indorser at the time of indorsing, in the latter case
this fact was of no importance. It is somewhat remarkable, that in the latter case
no mention whatever was made of the former, although there were three judges at
least sitting in both the cases. But De Berdt v. Atkinson must be considered as
overruled. In Leach v. Hewitt, 4 Taunt. 731, Ckambre, J. said: "Mr. Barnes, the
learned editor of my brother Bayley's work on Bills of Exchange, has subjoined, on
p. 136, a very sensible note upon the case of De Berdt v. Atkinson. He says : ' The
court appear to have proceeded on a misapplication of the rule which obtains as to
accommodation acceptances ; in those cases the drawer, being himself the real debtor,
acquires no right of action against the acceptor by paying the bill, and sutlers no injury
from want of notice of non-payment by the acceptor. But in tliis case the maker was
the real debtor, and the payee a mere security, having a clear right of action against
the maker, upon paying the note ; and therefore entitled to notice, to enable him to
assert that right." In Free v. Hawkins, 8 Taunt. 92, 96, Park, J., interrupting coun-
sel, said : " De Berdt v. Atkinson has been shaken in every printed book, and in the
practice of every one at tlie bar." So Muule, J , in Sands v. Clarke, 8 C. B. 751, 760,
says, "that case has been dissented from, if not distinctly overruled " ; Lord Denman,
C. J., Terry v. Parker, 6 A. & E. 502, 507 ; Bissell, J., Holland v. Turner, 10 Conn.
308. See also the remai-ks of Marshall, C. J. on these cases, in French v. Bank of
Columbia, 4 Cranch, 141, 162. The case of Do Berdt v. Atkinson is inconsistent with
the cases cited in the previous notes to this chapter.

(s) Leach V. Hewitt, 4 Taunt. 731 ; Carter v. Flower, 16 M. & W. 743. In this case
the declaration alleged, that neither at the time when the note was made, nor after-
wards, and before it became due, nor when it became due, and on presentment for pay-
ment, had the maker or the payee any effects of the defendant in his hands, nor was there
any consideration or value for the making of the note, of the payment thereof, or its
indorsement by the payee to the defendant, and that the defendant had not sustained
any damage by reason of his not having had notice of the non-payment of the note.
On special demurrer it was held, that against an indorser the declaration was bad, for
not stating a sufficient excuse for want of notice ; for, consistently with the allegations,
the note might have been indorsed by the defendant for the accommodation of one of
the prior parties to it, or some third person, in which case the defendant would be en-
titled to notice

[t) Sharp V. Bailey, 9 B. & C. 44, 4 Man. & R. 4, where it was also held that the
fact that the drawer drew the bill payable at his own house is evidence that the accept-
ance was for his accommodation. Sed quaere. Reid v. Morrison, 2 Watts & S. 401 ;
New Orleans Bank v. Harper, 12 Rob. La. 231 ; Lacoste v. Harper, 3 La. Ann. 385;
Gillespie v. Cammack, id. 248. See Nicolet v. Gloyd, 18 La. 417 ; Evans v. Norris, 1
Ala. 511. In Ex parte Heath, 2 Ves. & B. 240, Lord Eldon said : " The courts were
obliged necessarily to decide that, if bills were accepted for tlie accommodation of the
drawer, and there was nothing but that paper between them, notice was not neces-
sary, the drawer being, as between him and the acceptor, first liable ; but if bills were
drawn for the accommodation of the acceptor, the transaction being for his benefit, there
must be uoticB without effects. And if, in the result of various dealings, the surplus
of accommod.-ition is on the side of the acceptor, he is, with regard to the drawer,
exactly in the situation of an acceptor having effects, and the failure to give notice may
be equally detrimental."

47*

558 NOTES AND BILLS. [CH. XDI.

er,(M) is the party accommodated ; because he can have no rem-
edy against the acceptor or maker, inasmuch as his name was
put upon the paper merely to give it credit as regards third par-
ties, and because he is bound to provide the maker or acceptor
with funds.

But although a party may make a note for the accommodation
of an indorse!*, it is said he is not entitled to notice of the dis-
honor of the note at the place where it is payable,(?;) notwithstand-
ing he may have a remedy against the indorser, and his liability
to injury is as great as that of an accommodation drawer or in-
dorser, because notice is never required to be given to a party
who is primarily liable as regards third parties. This must be
true so far that the maker is not discharged by want of notice,
because no maker is. It may be, however, that such a maker
would be considered as standing in the relation of guarantor to
a holder who knew all the facts, and that he would be entitled to
reasonable notice, and would be discharged if he could show
actual injury caused by negligence in this respect.

It is obvious that many of the principles with respect to excuse
for want of presentment must apply equally to failure to give no-
tice ; yet it may be well, perliaps, to state them in this place,
although it must necessarily involve some repetition of what has
already been said.

Where the holder is dead, and no executor or administrator is
appointed before the maturity of the bill or note, as the indorser
will not be discharged by failure to present at maturity,(it') so the
same facts will of course constitute a valid excuse for not giving

(u) Reid V. Morrison, 2 Watts & S. 401 ; Shrincr i,-. Keller, 25 Penn. State, 61 ; Archer,
J., Clopper V. Union Bank, 7 Harris & J. 92, 102. In Torrey v. Foss, 40 Maine, 74,
notice to the indorser was held unnecessary, althoiij,'h at the maturity of tiie notes the
maker was indebted to the indorser. Tcnneij, J. said : " In the case before us, notwith-
standing a balance was in the hands of the maker of the notes, by tlio agreement be-
tween him and the defendant, the paper was to be provided for by other means of the
defendant, and at no time was it expected that this balance was to bo approjjriatcd for
the payment, and the case is to be treated as it would be if nothing was in the maker's
hands belonging to him. After the agreement between them, such as the evidence
shows that it was, it would have been an absurd expectation on the part of the defend
ant, that, because the maker of tiic notes was owing him a sum sliort of two hundred
dollars, he should have transmitted funds to the bank suflicicnt to meet the two notei
which he had signed." The amount of the notes was $ 887.

(f) Hansbrougli r. Gray, 3 Gratt. 356.

{w) Sujira, p. 444.

CH. XIII.] EXCUSES FOR WANT OF NOTICE. 559

notice until after actual prcscntmcnt,(a;) provided such present-
ment be made within a reasonable time after the appointment of
the executor or administrator. The same rule has been applied
where a note liad been left with an agent to collect, who died
four days before its maturity, after a sickness of more than
a month. Tlie note was locked up in a desk, where it remained
nearly a month after his death ; and the executrix, immedi-
ately upon its discovery, caused it to be presented and imme-
diate notice to be given, which was held sufficient to charge th©
indorser.(7/)

Where a note is void as against the maker, no presentment
would seem to be necessary, (z) because there is no one upon
whom demand can be made. This reason does not apply to
want of notice to the indorser that the note was not paid when
due ; yet we do not think that such notice would always be ne-
cessary. Thus, where the note is void, and the indorser looked
to is the first, or only indorser, he would be held without no-
tice ; {a) and for the same reason the party who indorsed a note
next after a forged indorsement might be held to subsequent hold-
ers without demand on the party whose note is forged, or notice
of his refusal ; because, however it might be in fact, the law can-
not presume that one whose name is forged to an instrument
would pay it.

It has frequently been remarked, that the indorsement of a
note is like drawing a bill on the maker, and an acceptance by
the latter. If the analogy is to be carried out, the first valid in-
dorsement of a void note would seem to be either like an unac-
cepted bill without any drawee, or a bill drawn without any
funds, or the expectation of having any. In the latter case wo

(x) White V. Stoddard, 11 Gray,

(.y) Duggan v. King, Rice, 239.

{z) Supra, p. 444.

(a) In Copp V. M'Dugall, 9 Mass. 1, the indorser was held without any notice, and
the evidence that the note was void for usury appears to have been a recognition by
the defendant, an indorser, of its illegality. In Chandler v. Mason, 2 Vt. 193, the in-
dorser was held without notice being given, as appears by a remark of Hutchinson, J.,
p. 195. The note was void on account of want of consideration. In Gray v. Bell, 3
Rich. 71, O'Neall, J. thought that tiie indorser of a note negotiated when overdue
was to be regarded as a new maker, or as a drawer without funds, and not entitled to
demand or notice. No notice is necessary to be given to an indorser, where the bill is
not drawn on a proper stamp. Gundy v. Marriott, 1 B. & Ad. 696, where the bill had
been Hccepted.

560 NOTES AND BILLS. [CH. XIIL

have seen that no notice is necessary ; and in the former, the in-
strument is not a bill, but may be treated as a promissory note ;
in which case no notice would be necessary, because the drawer
is the party primarily liable.

In one case it was held that a party who indorsed a bill pur-
porting to be drawn by an agent on his principal, both of whom
were fictitious persons, was entitled to notice ; (b) but it appeared
that the indorsement was made for the accommodation of a third
party, who was therefore liable over to the indorser.(f) But,
even if the indorser had been aware of the non-existence of the
drawer and drawee when he put his name upon the note, he
would not probably have been considered entitled to notice ; (d)
because he would be a partaker in an act well calculated to de-
ceive any party who might subsequently purchase the instrument,
and might prevent the purchaser from inquiring as to the sig-
nature of the drawer ; because the indorser had held out the
instrument as genuine.

It may also be remarked, that the indorser is certainly liable,
whether he knows that the maker or drawer are actual persons
or not, since an indorsement is, as will be seen hereafter, a
warranty of the genuineness of the antecedent signatures. (e)
Tlie only question is, indeed, whether his liability is that of an
ordinary indorser, or that of a maker of a new note.

Another important ground for the denial of all right in an in-
dorser to require demand of the maker and notice of dishonor
exists where the indorser, before maturity, has received an assign-
ment of all the maker's effects, to secure him for the liability
incurred by him as indorser. And the reasons why this fact de-
prives tlie indorser of his right to demand and notice are, first,
that he has thereby in effect prevented the holder from obtaining
the amount of the note from the maker, because he has taken
into liis hands all the available means which the latter possessed
of paying the debt ; consequently, he must be regarded as hold-
ing out to the party who would ordinarily be required to make
a due demand and give regular notice, that he, the indorser, has

(b) Lcnoh r. Hewitt, 4 Taunt. 731. The ojjinions in tliis case are short, and not
very satisfiictory.

(t/) Green, J., Farmers' Bank v. Vanmeter, 4 Rand. Va. 553, 561.
(c) Infra, Cliapter on Indorscnaent.

CH. XIII.] EXCUSES FOR WANT OF NOTICE. 561

become iiriinarily responsible for tbe debt.(/) And, bocondly,
tbat baviiig already received from tbe maker all tbat tbe maker
can give, be cannot recover anytbing more from bim by way of

(/) In Coincy v. Da Costa, 1 Esp. 302, at a meeting of the creditors of the makers,
it was proposed to assign by deed all their eft'ects to trustees for the benefit of tlio
creditors. Afterwards the defendant, to avoid expense, agreed to become indorser of
notes at different dates, to he given to the creditors for the amount of their respective
compositions ; and the notes were accordingly made payable to his order, and indorsed
by him. He took effects of the insolvents to the amount of the composition. The
note in suit, being one of those indorsed in this manner, was due Dec. 6th, but no no-
tice was given to the defendant until Jan. 14th. The indorser was held. Bitl/er, J.
said : " The present was not the common case of the maker of a note making default,
and no notice given ; the defendant made himself liable at all events, the creditors in-
sisted ou it ; he therefore was solely liable, and being so, could not avail himself of
want of notice." In Bond v. Farnham, .5 Mass. 170, notice was left on the day of ma-
turity at a store formerly occupied by the defendant, but not at that time in his posses-
sion. Three days afterwards he was notified The defendant having indorsed several
notes for the maker besides the one in suit, the latter assigned to him, as security for
the indorsements, all his property, which was not, however, sufficient to secure the dc
fetidant against the notes, exclusive of the one in suit. The maker was insolvent ai
maturity. Parsons, C. J., after stating that the notice given was insufficient, said : " We
are satisfied that the verdict for the plaintiff is right; because, under the circum-
stances of this case, the defendant had no right to insist on a demand upon the maker.
It appears that he knew such a demand must be fruitless, as he had secured all the
property the maker had, and as he secured it for the express purpose of meeting this
and his other indorsements, he must be considered as having waived the condition of
his liability, and as having engaged with the maker, on receiving all his property, to take
up his note. And the nature or terms of the engagement cannot be varied by an event-
ual deficiency in the property, because he received all there was." See this case com-
mented upon infra, p. ,568, note o. In Barton v. Baker, 1 S. & R. 334, one member of
a firm wliich made the note assigned all his estate to the defendant, to indemnify him
for certain advances of money, and for indorsements on account of the firm, one of
which indorsements was in suit. This was held to be a waiver of laches in giving notice.
Tilyhman, C.J. said: "Now, by the taking of this assignment, it is not unreasonable to
presume that the defendant took upon himself the payment of the indorsed notes, espe-
cially as, when he did receive notice ten days after the note fell due, although he knew
and remarked that it was out of time, he did not deny his responsibility, but said that
his ability to pay would depend on the arrival of a vessel. I agree, therefore, with Bond
V. Farnham, 5 Mass. 170, where it was held that, in such case, the indorser dispenses
with notice." See also the remarks of Gibson, C. J., in Kramer v. Sandford, 4 Watts
& S. 328.

In Bank of South Carolina v. Myers, 1 Bailey, 412, the defendant had taken from
the maker a confession of judgment which covered the whole estate of the latter. It
was held competent for the plaintiff to show, by parol evidence, that the confession of
judgment was intended to secure the indorser against his liability on the indorsement,
that this was a waiver of demand and notice, and that the defendant was liable, not-
withstanding laches in giving notice. Colcock, J. said : " Whether notice may be dis-
pensed with in a case where the indorser takes collateral security, which covers tho
whole of the maker's estate, whereby he not only enables himself to pay the debt, but
interposes an insurmountable obstacle to the recovery of the holder, must be determined

Vol. I.— 2 L

oQ2 NOTES AND BILLS. [CH XIIT.

indemnity, and therefore cannot be injured by losing an opportu-
nity to demand indemnity.

The rule we consider to be established by the weight of au-

by referring to the reason of the rule, and its application to such a case. The reason
of the rule is stated by all •writers on the subject to be, that the parties to the note or
bill niav, respectively, take the necessary measures to obtain payment from the parties
respectively liable to them ; and if notice be not given, it is a presumption of law that
the drawer and indorsers arc prejudiced by the omission ; and it is on this principle that
notice of non-acceptance and non-payment are required. On the case made, it is at
once obvious that, if notice is given to the indorser, he is not benefited by it. He has
already secured himself as far as it is practicable for him to do so. He had obtained an
operative lien on all the maker's estate, as well as the means of taking his body, if he
should think that proper or necessary. If an individual, who is not content to rely on the
security which the rules of law afford him, thinks proper to protect himself, surely there
can be no reasonable objection interposed to his doing so, provided he does not thereby
interfere with the rights of others ; but if in his arrangements he destroys the operation
of a rule of law which may be beneficial to another whom he has induced to enter
into the contract, it cannot be doubted that he should respond in damages to such per-
son. Now this previous judgment, covering the whole of the maker's property, most
manifestly prevents the plaintiff in this case from proceeding ; for the decisions of out
courts always have been, that the sheriff must pay over money to the oldest judgment
and execution creditors. It would, therefore, have been a nugatory act, in such a case,
to have forced a sale of the maker's property. This interposition of the indorser may,
I think, be considered in the li<^ht of a legal fraud ; for it might in fiict be made use of
to effect a moral fraud. I mean not to intimate that such has been the case here. But
suppose, in such a case, that the holder should not discover the purpose for which judg-
ment had been given, would he not be defeated in his proceedings to recover his debt ?
There certainly is nothing to prevent the indorser from selling all the proiicrty under his
judgment, and disposing of it as he pleases. And take the case where all the parties
are apprized of the object and intention of the maker in confessing a judgment to secure
the indorser, if it affords an additional security to the holder, it is by diminishing the
old security; and it is like an undertaking on the part of the indorser, in addition to
Jiis own responsibility, to pay the debt out of the maker's funds which are thus placed
at his disposal, or at least subject to his control." After commenting upon the cases
cited previously in this note, the judge concluded by saying : " We are ourselves
nnanimously of opinion that these cases, so far as authority is important, are sufficient;
and that the reason of the rule ceasing, the rule itself is rendered inapplicable." See
Barrett v. Charleston Bank, 2 McMullan, 191 ; Stephenson v. Primrose, 8 Port. Ala.
15.5 ; Perry v. Green, 4 Harrison, 61. In Vreeland v. Hyde, 2 Hall, 429, the makers had
made an assignment of their property to the defendant and another party for the benefit
of their creditors, wherein it was stipulated that, if the defendant was liable on his in-
dorsement of the note in suit, the money should be refunded to him out of the pro-
ceeds of the assignment. As was well remarked by llornblower, C. J., in Perry v.
Green, 4 Harrison, 61, this was a sufficient reason for a judgment in favor of the plain-
tiff, who had neglected to make a demand for an unreasonable time ; although it was
not adverted to by the court, who decided the case for the plaintiff on very questionable
grounds. Mechanics' Bank v. Griswold, 7 Wend. 16.''), where the assignment was of
all the maker's property to the defendant and one other, in trust, to dispose of the. prop-
erty, collect the debts, and, after deducting the charges of the trust, to pay the debts in
a certain order, first satisfying all the notes and debts for wliieli the defeiidai l at>d A ccr-

CH. Xin.] EXCUSES FOR WANT OF NOTICE. 563

thority, even where the property assigned is insufficient to cover
the whole liability of the indorser.(^) But there is authority to
the effect that such assignment is no waiver of due demand,
unless it is sufficient to entirely protect the indorscr,(/t) and an

tain firm, or either of them, were liable as sureties or indorsers ; Nelson, C. J., Spencer
V. Harvey, 17 Wend. 489. See Bruce v. Lytle, 13 Barb. 163; Johnson, J., Seacord
V. Miller, 3 Kern. 55 ; Benedict v. Caffe, 5 Duer, 226, 233 ; Hosmer, C. J., Prentiss
V. Danielson, 5 Conn. 175, 180; Duvall v. Farmers' Bank, 9 Gill & J. 31. In
Denny r. Palmer, 5 Ired. 610, the judge refused to charge the jury, at the request of
the plaintiff, tliat if the makers had conveyed all their property to a trustee, as an in-
demnity to the defendant, this was a waiver of notice. This refusal was held correct.
But it appears by tlie facts tliat the conveyance did not comprise all the maker's prop-
erty. In Coddington v. Davis, 3 Denio, 16, the maker assigned all his property to
one of the plaintiffs, in trust, to pay his debts according to a certain order of preference,
and among the first in order was the defendant, for the indorsement sued on and for
other debts. The defendant also signed an order addressed to the trustee, directing him
to pay to the order of the plaintiffs all the money as fast as collected, to the extent of
tlio indorsement. There was also an express waiver. Jewett, J. thought the assign-
ment a waiver of notice. This case was affirmed in the Court of Appeals, 1 Comst.
186, but the court there proceeded upon the express waiver.

(g) Bond v. Farnham, 5 Mass. 170, supra, p. 561, note /!

(h) In Watkins v. Crouch, 5 Leigh, 522, the note in suit was payable at a particular
place, and not having been presented there, the indorscr was not liable. But he had re-
ceived an assignment of all the maker's effects ; and this, it was contended, amounted to
a waiver of his right to require a demand to be made at the specified place, and put him
in the same condition in which the maker was. It was contended by counsel that no
indemnity was especially provided for by the deed of assignment as to the note in suit,
but that it was only provided for in a general provision for all the debts of the assignor.
The court seem, however, to have considered it as providing an indemnity to the in-
dorser for a fourth part of the note. These foets were held no waiver of the indorser's
right to require a demand at the place specified, Brooke, J. dissenting. Carr, J. said :
" The deed is made an exhibit in the bill of exceptions, and I think may fairly be con-
sidered a conveyance of all the grantor's property. It is given for the security of
several enumerated debts, and among others of one fourth of the note on which the suit
was brought. What was the value of the property, or what proportion it bore to the
debts intended to be sec-ured by it, does not appear ; that it was not sufficient to secure
the whole we are obliged to conclude When a note is made payable at a par-
ticular place, proof of a demand at the place is indispensable, in a suit against the
indorser. Did the deed place the indorser completely in the shoes of the maker ? I
should agree that it did, if it appeared that the property conveyed was sufficient for full
indemnity against the note, and was by the deed appropriated to such indemnity ; but
the sufficiency of the property makes no part of the case ; and it appears by the deed that
the trustees are not authorized to appropriate any part of it to indemnity against more
than a fourth of the note. It was said, however, that the property, whether adequate
cr not, was all the maker had ; and that, having thus become utterly insolvent, there
could be no hope of his providing funds at the bank to discharge the note, and
therefore no necessity of presenting it. But we see, from many cases, that the most
perfect knowledge of the insolvency, or even bankruptcy, of the maker, docs not dis-
penst with a due presentment and notice of dishonor. He may have friends or credit ;

oC)4 NOTES AND BILLS. [CH. XUT,

opinion has been intimated, that an insufficient assignment may

or the sagacity and vigilance of the indorser may discover other sources of indem-
nity. It is his own affair, and he ought to be the judge But it was said, that

here the insolvency is produced by the indorser himself; that he has appropriated to
his own use the funds which might have gone to discharge the note ; and that we
cannot suppose such a conveyance would be made without an agreement between
the parties, that the indorser should attend to the note, take the maker's place,
and release him from all further care about it. I cannot perceive the correctness of
this reasoning. Why should the indorser take the maker's place ? Was it not better
that he should continue to hold his station of collateral surety 1 Better botli for
himself and the maker 1 He was bound conditionally for the debt, and he might well
say to the maker: ' My friendship for you has led me into this engagement ; it is but
fair that you secure me, so far as you can ; your property may not pay a fourth of the
debt, yet it will be something ; in the meanwhile we will continue to hold our relations
of principal and surety ; before the note comes to maturity new prospects may open upon
you, new friends may arise, new accessions of fortune may fall in ; and the holder of
the note will have to proceed with due diligence before he can come upon me.' Is not
tliis the more natural course ? And does it invade any right of the holder, or imposo
any hardship on him ? No ; he has only to attend to his own interest, and pursue the
beaten track of due diligence. I cannot think, then, that, by the e.xecution of the deed,
the indorser lost his character of surety, and became a principal debtor; and I am
of opinion that, in order to charge him, it was incumbent on the holder of the note
to prove, at least, a presentment at the place of payment, if not due notice of 8uch
presentment." Cabell, J. said : " The indorser, in taking an assignment of property
sufficient to pay only part of the note, did not undertake to pay the residue. It may
be confidently asserted, that there is not, in the terms of the assignment, any express
contract to that effect ; nor can I see a single circumstance in the whole transaction
from which such a contract can be implied. The assignment of proi)crty sufficient only
for the partial indemnity of the indorser was a matter between him and the maker of the
note. There was no motive in either of the parties to that arrangement, wliich could
induce a wish that the indorser should waive the condition of his liability. How, then,
can we imply such waiver in favor of a person who was no party to tiie arrangement 1
How can we imply it from the mere fact of a partial indemnity ? Suppose the maker
of the note had had no other property but money, not equal, however, to the amount of
the note, and had put that money, all he had, into the hands of the indorser, to be ap-
plied by him to the payment of the note, would this have exempted the holder from the
obligation of presenting the note, and giving notice of its dishonor? Certainly not;
and I am unable to see any difference between the deposit of money and the assign-
ment of property, so far as regards the point under consideration. Nor is there any
resemblance between an indorser of a note partly indemnified, and the drawer of a
l)ill of exchange, who withdraws his effects from tlie liands of the acceptor before the
day of payment. In the latter case, the drawer has no right to expect that the acceptor
will pay, and therefore he is not entitled to notice. But the indorser's right to notice
from the holder depends on another principle, namely, his remedy over against the
maker. And this principle applies as forcibly to a case where a part only of a note
remains unpaid or unprovided for by the maker, as where the whole of it remains so
unpaid or unprovided for. Again, the assignment in this case was made aliout a month
before the note was to fall due. It is impossible for us to say that no accession was
made, in that interval, to the maker's means of p.iyment ; and, of course, wo cannot
say that notice to the indorser would have been unavailing."

CH. XIII.] EXCUSES FOR WANT OF NOTICE. 565

be a waiver of notice, but not of regular demand. (z) It seems
to have been held that the assignment, to have the effect of a
waiver, must be for the purpose of protecting the indorser from

(i) Tucker, P., Watkias v. Crouch, 5 Leigh, 522, 547, who said : " If the question
was merely as to notice, I should incline to think the taking a conveyance of all his
property from the maker ought to dispense with the necessity of notice. The object of
notice to the indorser is to put him on the alert, to announce to him that he will be
looked to, and to warn liim to take care of himself And hence even insolvency
or bankruptcy is no excuse for want of notice, since it is possible the indorser might
find some means to save himself out of the wreck of his debtor's fortune, or through
the assistance of his friends. But when the indorser himself, conscious of his liability,
is already on the alert, and proceeds to take care of himself with all diligence and
activity, and actually sweeps the whole estate of the maker for his own indemnification ;
when he has done this with a knowledge of the maker's insolvency, and after consult-
ing with a friend whether he had better pay the note, or suffer it to take its course, cui
bono shall the holder give him notice ? Is it to stimulate his vigilance, who has proved
himself already so watchful 1 Is it to warn him to take care of himself, who lias been
already on the alert, and has swept ofi^ land, negroes, stock, household and kitchen
furniture, bonds, bills, notes, and open accounts, and all other property of the maker 'i
It were a mockery to give, or to require a notice to be given, to one thus circum-
Btanced. If payment of part, or a promise to pay or to see it paid, or an acknowledg-
ment that it must be paid, dispenses with the necessity of notice, how much stronger is
tlie case of one who not only confesses his liability, by taking an indemnity providing
' for paying off" and discharging the note,' but who takes a conveyance of every article
of property held by the maker, and thus prevents the maker's complying, in whole or
in part, with his engagement to the holder. Accordingly, we find the clearest authority
on this subject in the courts of two of our sister States, — Bond v. Farnham, 5 Mass.
170; Barton v. Baker, 1 S. & R. 334, — in both of which the acceptance, by the in-
dorser from the drawer, of a general assignment of his estate and effects, was held to dis-
pense with the necessity of notice. That the assignment was made, in this case, to a
trustee, I consider not at all varying the case. But this is not a question as to notice.
In this case the bill never has been presented for payment, at the places appointed ;
and the question is, whether this assignment of the maker's effects, for the indemnity
of the indorser, places him so far in the shoes of the maker as to exempt the holder, in
an action against the indorser, from averring and proving a demand at the time and
place specified by the bill. It seems to have been admitted in the argument, that,
\mless the indorser has placed himself in the shoes of the maker, this averment and
proof cannot be dispensed with. This was properly admitted, upon the ground already
stated, that, as the indorser had engaged to pay what was not his own debt, at a certain
time and place, the demand is an essential part of the plaintiff''s title, and must, therefore,
be averred and proved. The question, then, really is, whether the indorser has placed
himself in the shoes of the maker, by taking this indemnity. The answer must, I
tliink, be in the negative. Had he received funds ade(iuate to the discharge of the
note, he would indeed have been in the shoes of the maker, and no demand at the
place would have been essential. But how can he be said to be in the place of the
maker, if the assignment is inadequate to the payment ? If he was in the shoes of the
maker by reason of the assignment, he was so at the instant of that assignment ; that
IS to say, he was from that moment to be considered the real debtor for the whole,
while he received indemnity only for a fourth ; and an indemnity, too, which might

VOL. I. 48

56 (i NOTES AND BILLS. [CH. XIH.

his liability as indorser ; [j) though it would also seem that the
general reason that the indorser has prevented the holder from
obtaining payment of the maker might apply to the case of a
general assignment, or to one for the express purpose, among

prove inadequate even to that. Moreover, from that instant the holder would have
been absolved from all necessity of making a demand, or otherwise proceedinjj against
the maker, whatever might be his subsequent acquisitions, by descent, by marriage, by
the fortune of trade, or otherwise, I cannot think this reasonable. I cannot think such
an inadequate assignment can absolve the holder from his obligation to demand pay-
ment, nor is there any authority to sanction the position." It may, perhaps, be doubted
whether it was exactly correct to contend that the indorser, in this case, was to be con-
sidered in the place of the maker. The question really was, whether any demand at
all was necessary. If none were requisite, then it would be unimportant when or
where the attempt was made. But it may also happen that an indorser would be
liable without a demand, when the maker would not. Thus where a note is made
payable at sight, it is necessary that it should be presented to tlie maker before he la
liable. But suppose a demand had been waived, or excused, by the indorser. In that
case he would be liable without any ; so that less would be required of the holder, as
against the indorser, than as against the maker. But in Denny v. Palmer, 5 Ired. 610,
Ruffin, C. J. seemed inclined to tliink that due notice was not waived by the raero
assignment of all the maker's property.

{j) Benedict v. Caffe, 5 Duer, 226, 233. In this case the presentment was held in-
sufficient, because made at an improper place. The makers luid made a general assign-
ment of their property, for the benefit of their creditors, to the indorser. The terms of
the assignment were not disclosed. Bosworlh, J. said : " If the case had disclosed the
contents of tlie assignment, it might have ajipeared to be a general assignment of all tho
property of the assignors to the first indorser, upon trusts, and among others, to first pay
all notes made by the assignors, on which he had been, or might be, made liable as
indorser. If so, Medianics' Bank v. Griswold, 7 Wend. 165, sitjint, p. .i62, note/, is an
authority, that neither demand nor notice would have been necessary to charge him, as
indorser. But the case does not disclose the terms of the assignment." In Creamer j;.
Perry, 1 7 Pick. 332, by the statement of facts as given by the reporter, it appears that the
maker liad assigned all his property to the indorser and one other jiarty, for the benefit
of his creditors ; and that the defendant was a preferred creditor and fully secured for all
his demands and liabilities. There were laches in demand and notice. Tlie plaintiff
was nonsuited. Shaw, C. J. said : " On the first ground, we think that the most wiiich
could I)e made of the evidence is, that after tliis note was made, but several months
before it became due, the promisor made an assignment to trustees, upon trust, among
other things, to secure the defendant for all debts due to him from the protnisor, and to
indenmify the defendant against all his liabilities We think tiie cflect of tliis as-
signment was, to secure and indemnify him against his legal liabilities ; and as his liability
as indorser on this note was conditional, and depended upon the contingency of his having
seasonable notice of its dishonor, his claim upon the property dejiended upon the like con-
tingency." Either the learned judge overlooked tho fact that the assignment was of all
the maker's property, or else, we think, tliis case must be considered as overruling Bond
V. Farnliam, .'j Mass. 170, which case, however, is not mentioned or commented upon.
In tlie latter case, the a.ssignment to the defendant was " for his security against his in-
dorsements." This must mean "his liabilities as indorser"; and we do not see how
the two cases can bo reconciled on this point.

CH Xin.] EXCUSES FOR WANT OF NOTICE. 567

others, of covering the indorsement ; at least, parol evidence is
admissible, we think, to show that the indorsements were in
tended to be covered. (A;) It is incumbent on the party who relies
upon a general assignment of all the maker's effects (no partic-
ular indorsement being specified), as a waiver of demand and
notice, to prove satisfactorily that the whole estate was assigned ;
because this, being an exception to the general rule, should be
strictly proved. (/)

It will be seen that one objection to this doctrine of waiver is,
that the maker, after having made the assignment, may, by de-
scent, by marriage, by the fortune of trade or otherwise, have
come into possession of some property, and that the indorser
should be entitled to the benefit of these facts. (w) These
chances may be, however, among the minutiae which the law
does not recognize ; (n) but still, if they could be proved to exist,
there are strong reasons, we think, to consider them as doing
away with the waiver.

The right of an indorser to receive notice, when he has pos-
sessed himself of all the property of the maker or acceptor,
must be determined by different principles from those which
apply to the case of an indorser to whom the maker or acceptor
has assigned special property by way of security for his indorse-
ment.

There are many cases in which this matter of taking security
before maturity, by the indorser, is discussed ; and there is no
little confusion and uncertainty in the law on this point. Ac-
cording to some authorities, if the indorser, before maturity,
obtain from the maker effects sufficient to secure the whole lia-
bility incurred by him on account of any particular indorse-
ment, and the effects are received for that purpose, both de-

(k) Bank of South Carolina v. Myers, 1 Bailey, 412, sitjn-a, p. 561, notey^

(/) Diivall V. Farmers' Bank, 9 Gill & J. 31. Sec Denny v. Palmer, 5 Ircd. 610.

(m) Tucker, P., supra, p. 565, note i. Carr, Cabell, JJ., supra, pp. 563, 564,
note h.

(n) This objection does not seem to have been much considered by the courts in the
cases cited supra. Brooke, J., in his dissenting opinion, in Watkins v. Crouch, 5 Leigh,
522, 539, said : " If there was any new accession of property, he was as well prepared
to take care of himself as if the note had been duly presented." In Kramer v. Sand
ford, 4 Watts & S. 328, Gibson, C. J. said : " The chance of the maker's acquirement
of other property, to which he might resort, if the funds in his hands should fall short,
is so inconsiderable as to fall within the maxim de minimis."

668 NOTES AND BILLS. [CH. XHI.

maud and notice are waived ; on the ground that the indorser
has, bj his own act, obtained all the benefit which the law of
demand and notice confers, and that therefore there is no reason
for the requirement of these conditions. (o) It seems to be clear,

(o) In Bond v. Farnham, 5 Mass. 170, Parsons, C. J. said: "We do not mean to
be understood that, when an indorser receives security to meet particular indorse-
ments, it is to be concluded that he waives a demand or notice as to any other indorse-
ments. But we are of opinion that, if he will apply to the maker, and, representing
himself liable for the payment of any particular indorsements, receives a security to
meet them, he shall not afterwards insist on a fruitless demand upon the maker, or on
a useless notice to himself, to avoid payment of demands which, oi. receiving security,
he lias undertaken to pay." This can only be considered as a dictum with reference to
the point now under consideration, and it does not appear clearly what the language
really means. In Mead v. Small, 2 Greenl. 207, the head note is as follows : " If the in-
dorser of a note has protected himself from eventual loss by taking collateral security of
the maker, it is a waiver of his legal right to require proof of demand on the maker, and
notice to himself." Mdlen, C. J. said : "It appears the maker was destitute of all per-
sonal property liable to attachment ; that the defendant received and held a mortgage
of the maker's real property, sufficient to secure the payment of said note ; and which
was made for that express purpose. These facts present a stronger case in favor of the
plaintiff than those in Bond v. Farnham, 5 Mass. 170. There the property pledged
was not a sufficient indemnity to the indorser, but it was all which the maker had.

Here it is proved to be sufficient But if the indorser has protected himself from

eventual loss by his own act in taking security from the maker, such conduct must bo
considered as a waiver of the legal right to require proof of demand and notice. And
we arc of opinion, accordingly, that the facts before us clearly show such a waiver in
the present case." But by the facts of the case it appears that, when the defendant
transferred the note to the party who transferred it to the plaintiff, it was agreed that
the maker slioukl not be sued, not having any personal property liable to attachment ;
and that if the latter could not pay, the note should be returned to the defendant,
wiio held the mortgage. These facts may, as will be shown hereafter, have an
important bearing on the case. In Marshall v. Mitchell, 3.5 Maine. 221, Welles, J.
eaid : "If the indorser has security in his own hands fully equal to his liability, lie
can suffer no loss by the want of demand and notice ; therefore he has been held
liable, in such case, without proof of those facts. And if the security is taken
before the maturity of the note, it cannot be material whether it was before or after
its negotiation. In either case it furnishes an indemnity." This is also a dictum.
There is also a dictum of llosim-.r, C J., Prentiss r. Danielson, 5 Conn. 175, that,
" If an indorser receives security to meet a particular iiulorscmcnt, he waives a
demand and notice in respect of that indorsement, but not us to any other." In
Durham v. Price, 5 Yerg. 300, there had been laches in nniking demand and giving
notice. There was evidence that the indorser was fully indemnified, and also |)romiscd
to pay after maturity. The judge instructed the jury, if the defendant had full indem-
nity, or promised to pay after maturity, with full knowledge of all the facts, to find
for the plaintiff. A verdict for the plaintiff was sustained. In Barrett v. Charles-
ton Bank, 2 McMullan, 191, a bond and mortgage was assigned by the maker to a
third jtarty, in trust, to secure the defendant as indorser, if tiie nuiker should f:rl to pay
the note. The notice was insufficient because it was deposited in the post-office, the in-
dorser and holder both living in the same place. The indorser was held L'tam J.

CH. XUI.] EXCUSES FOR WANT OF NOTICE. 569

however, that no court would hold such reception of indemnity
to be a waiver, unless it is sufficient to entirely protect the in-
dorser, and on this point, according to many authorities, lies the
distinction between securing all the maker's effects, and an

thought that the cases cited supra did not depend upon the f:\ct that the whole of
the maker's estate was assigned, but that the ground for these decisions was, that tlie
indorser was secured. In Stephenson v. Primrose, 8 Port. Ahi. 155, the point seems to
be decided. But Collier, C. J. said that there might be exceptions. See also ITolman
r. Whiting, 19 Ala. 703, but in that case the assignment, which was of a judgment,
was made to the defendant's attorney, and there was no evidence that the defendant
either assented to or knew of it ; and he was discharged on account of no demand
being made, or notice given. In Watt v. Mitchell, 6 How. Miss. \3l, the demand was
made a day too late, but notice was given on the day of maturity. Tiie defendant was
indemnified by a mortgage, and was held on that ground. Evidence was offered by him
to prove that the mortgage, when foreclosed, was insufficient to cover the liability, but it
was held inadmissible. It also appeared that the defendant had, prior to foreclosure,
released a part of the mortgaged property. The court said : " We are of opinion that
this evidence was properly ruled out. The question is, whether an indorser, who ob-
tains indemnity for his indorsement from his principal, does not thcrel)y dispense with
notice of demand and refusal to pay. We think he docs, and especially under the cir-
cumstauces of this case. Here the iiidorsers obtained a formal mortgage of a very large
amount of property, and had the same recorded, as an indemnity against their several
undertakings and liabilities ; and that they actually, of tlieir own accord, released to
their principal a large portion of the mortgaged estate, without any agency or consent
of the holder of this note ; and if the property remaining in their hands proved insufficient
to indemnify them, it was their own fault, and not binding on the holder of the paper."
In Walker v. Walker, 2 Eng. Ark. 542, the second indorser of a bill had received
ample indemnity from the first indor.ser. The judge charged the jury, if they believed
that the indemnity was then taken, and was at that time sufficient, to find for the plain-
tiff, although he had received no notice, notwithstanding the indemnity afterwards be-
came doubtful as a means of security. The instructions were held correct. Oldham, J.
said, after referring to the rule with respect to indemnity: " It is contended by the plain-
tiffs in error that this rule extends only to cases ' where there are hut three parties, the
drawer, indorser, and payee, and the indorser takes from the drawer an assignment for
the express purpose of paying the bill, and thereby making a demand on the drawer
fruitless, and becoming himself the real debtor ' We have taken some pains to look
into the reported cases to see if this position is correct. We find that many of the
cases do not go further, because the facts involved in them did not require a more ex-
tensive application of the rule." After citing several cases, the judge continued :
" These cases fully establish the principle that, if the indorser take a sufficient .security
from the maker to indemnify him against his indorsement, it will dispense with proof
of demand and notice of non-payment. But it is insisted that the security in this case
•vas from the first to the second indorser. The same relation exists between them as
between the drawer and the first indorser, and the reason of the rule applies as readily
to one case as the other. And in this view we are sustained by Judge Ston/, who,
after statl-g the general rule as between the drawer and the indorser, continues : ' It fol-
'ows a fortiori that, if, by prior arrangements between any of the parties, the necessity of
notice has been expressly or impliedly dispensed with, as between these parties, no notice
need be given.' One of the defendants below received notes as an indemnity to him
48*

57G KOTES AND BILLS. [CH. XIH.

assijjimieut sufl&cient to cover a particular indorsement ; the
former circumstance rendering it immaterial whether sufficient
security is taken, ^yhile the adequacy of the security is essential,
to make the latter a valid waiver, (/>)

against his indorsement. The amount was amply sufficient to cover his liability ; and it
was proven that the makers of those notes, at the time of maturity of the bill, were good
for the amount. We are consequently of opinion that the facts proven dispense with
the necessity of proof of demand and notice as to that defendant, and that the instruc-
tions of the court below on that point were correct." The language used in this case
is somewhat obscure, on account of confounding the words " maker" and " drawer."
In Kyle v. Green, 14 Ohio, 495, the defendant received the note of a third person,
as a part of the consideration for a tract of laud which the former agreed to convey on
payment of the note. The defendant had signed a title-bond, but retained the title la
his own hands. The vendee was the first indorser. He had indorsed it to the plain-
tiff, who offered no evidence of demand and notice, on the trial. The defendant made
a demand on the maker twenty days after maturity. The judge charged the jury that
the indemnity absolved the plaintiff from the obligation of making demand and giving
notice. Held correct. Read, J. said: "But the defendant insists that the bond is no
indemnity, because the first indorser is discharged from the payment of the note, as he
was not notified of demand and non-payment of the maker, and therefore that ho
cannot collect it from the first indorser ; and that a court of equity would compel him
to execute a deed to the first indorser, upon the grouud that the plaintiff and himself
had so conducted themselves respecting the note as to make it their own, and a pay-
ment to that extent by the first indorser. If this be the fact, it is the fault of the defend-
ant. It was the duty of the defendant to see that the liability of the first indorser was
fixed by notice of demand and non-payment, if it were necessary. If it were not done,
the defendant cannot complain of the plaintiff. If the defendant has so conducted respect-
ing the note as to lose the amount, the fault and the loss are his. Wiiethcr he has or
not, we do not decide in this case. But if he has not, the laud is an indemnity, and the
court did not err in their charge to the jury." By the case of Hall v. Green, 14 Ohio,
497, it will be seen that the defendant was obliged to convey the land to the first indorser.
In Develing v. Ferris, 18 Ohio, 170, the defendant had sold certain lands to the maker,
and took his note in part payment therefor, but still retained the title as security until
the note should be paid. He subsequently indorsed the note to the plaintiff, and on
being called upon for i>ayment, admitted that he was secured. The defendant was
held without proof of demand and notice, Ililchcock, C. J. taking it for granted that
demand was not made at the right time. Eccleston, J., Lewis v. Kramer, 3 iMd. 26!j, 291.
(/)) Maine Bank v. Smith, 18 Maine, 99, where the defendant had taken a mortgage,
but it appeared that he had derived no benefit from it; Marshall v. Mitciiell, 34 id.
227, where the defendant had taken a mortgage, but the plaintiff failed, because ho
did not prove it to he sufiicicnt indemnity; Brunson v. Napier, 1 Ycrg. 199. See
Lewis V. Kramer, 3 Md. 2G5, 291. See Spencer v. Harvey, 17 Wend. 489, where
Nelson, C J. said : " Notice was supposed to have been dispensed with, on the ground
that the indorser had taken indemnity of the makers, by means of a judgment, upon
which execution has f)een issued ; but it is extremely uncertain if anything will be
realized out of the property. The security is already in litigation in ciinnccry. The
mere precaution, by an indorser, of taking security from his principal, lias never been
adjudged to operate as a dispensation of a regular demand and notice. It is no doubt
a common occurrence, yet such effect has never been imputed to it. There must be

CH. XIII.] EXCUSES FOR WANT OF NOTICE. 671

Tliis doctrine, however, although supported by the ophiions of
such distinguished jurists as Mr. Justice Story(^) and Chancellor
Kent,(r) we think is erroneous, and not supported by the weight
of authority, or by the best considered cases. Where a party
takes security, although it may be ample, the fair and proper
construction is, in our opinion, that he takes it to secure his
liability as indorser. Now his liability as indorser depends upon
the fact of due demand and notice ; and hence the agreement
by the indorser's receiving the security may be regarded as to
the effect that, if he is properly charged, he will employ the
security to pay off the note ; and if he is not properly charged,
that he will return it to the maker, or to the party from whom
he received it.(s)

soraethinn; more, such as taking into his possession the funds or property of the princi-
pal, sufhcient for the purpose of meeting the payment of the note ; or he must have an
assignment of all tlie property, real and personal, of the makers for that purpose. The
notice is dispensed witii when funds are received, upon the ground that the object for
which it is required to be given, namely, to enable the indorser to obtain indemnity
from his principal, has already been attained. Partial or doubtful security falls short
of this, and leaves the reason of the rule requiring notice in full force." See Bruce v.
Lytic, 13 Barb. 163 ; May v. Boisseau, 8 Leigh, 164 ; AVarder v. Tucker, 7 Mass. 449;
Burrows v. Hannegan, 1 McLean, 309.

(q) Story on Prom. Notes, § 357 ; Story on Bills, § 374.

(r) 3 Kent, Com. 113.

(s) This seems to have been the principle upon which Creamer v. Perry, 17 Pick. 332,
where the assignment was made to trustees was decided. Tiie plaintiff was nonsuited,
on account of laches in demand and notice, although the defendant had taken an assign-
ment. See the facts and remarks of Shaw, C. J., cited supra, p. 566, note J. In Wood-
man V. Eastman, 10 N. H. 359, the defendant had taken a mortgage from the maker
to secure the note in suit and another. Held no waiver of demand and notice. Parker,
C. J. said : " An indorser of a note who holds a mortgage for its security, unless there
is, at the time of the indorsement or afterwards, some other evidence of waiver, seems
to have the same right to be exonerated by the neglect of the holder as any other in-
dorser. In such case, if there was but one note secured by the mortgage, the indorsee
would either be entitled to the benefit of the mortgage, upon the ground that it passed
as an incident ; or the mortgage would be destroyed by the transfer of the note, and
the holder would have a right to attach the land. If there were other lands secured by
the mortgage, and retained by the mortgagee, it might be different ; but that could not
change the nature of the case. If by the indorsement the note was so separated from
the mortgage that the latter was no longer a security, the indorsee might attach the
equity of redemption. In either case, there would be nothing to show that it was
within the contemplation of the parties that the right to require demand and notice
should be waived, and of course notliing to show even an implied agreement to that
effect." It will be observed, however, that there was evidence in this case that the
mortgage liad been transferred to the plaintiff, and that the defendant afterwards got
possession of it improperly. In Holland v. Turner, 10 Conn. 308, the indorser held
the goods, for which the note was given, as security. He was discharged on account

572 KOTES AND BILLS. [CH. Xm.

It is also very difficult to see why the mere fact of taking in-

of laches in giving notice. Bissell, J., said : " We have shown what was the nature
and character of the defendant's undertaking ; that it was a conditional and not an ab-
solute engagement. We have seen upon what conditions he migiit be lield answerable;
and that, in the event of his being compelled to pay the note, he would have a right of
recourse to the maker. He has taken security to indemnify himself against that under-
taking. Can it then be seriously contended that the fact of taking such security is to
change entirely the character of the undertaking 1 To convert it from a conditional to
an absolute one ? When the defendant indorsed the note, he was entitled, in his char-
acter of indorser, to notice. Is there any reason why his subsequently having taken a
security should deprive him of a right to which he was entitled when the indorsement
was made ? From the fact that no notice was given, he would have a right to pre-
sume that the note was paid by the maker, and might thus be induced to part with his
security." See the remarks of Nelson, C. J., in Spencer v. Harvey, 17 AVend. 489,
cited supra, p. 570, note p. So Ingraham, J., in Taylor v. French, 4 E. D. Smith, 458,
said: "Mere security for the indorsement affords no reason for dispensing with de-
mand. On the contrary, it furnishes a stronger reason why the indorser, who hokls secu-
rity, should be informed of the non-payment. Without notice thereof, he miglit suppose
it to have been paid, and in consequence of such neglect have parted with his security."
In Seacord r. Miller, 3 Kern. 55, the defendajit had, sI.n; months before maturity,
taken a mortgage of j)ersonal property of the maker. The demand and notice were
premature, and the defendant was disciiarged. It did not appear whether the mort-
gage was sufficient indemnity, but the court did not lay much stress upon the fiict.
Gardiner, C. J. said : " The security given in this case was designed as an indemnity
against a contingent liability. It did not change the nature of the original contract,
or amount to a performance of a condition precedent upon which that liability de-
pended. I do not perceive how, upon the principle upon which this case was decided
(in the lower court, rendering judgment in favor of the plaintiff), an indorser couhl ever
take an adequate security without converting a conditional into an absolute contract
for the payment of the money mentioned in the note. Where the fund is deposited by
the maker and accepted by the indorser for the purpose of paying the demand, the case
may be different." The subject was very ably discussed in Kramer v. Sandford, 4
Watts & S. 328. In that case the plaintiffs failed to give notice. Five months before
maturity tlie makers executed a judgment bond to the defendant in the penalty of
$ 18,000, with a condition annexed, reciting that the defendant was an indorser for the
makers to the amount of $ 9,000, and that they would indemnify and save liim harm-
less from all his res|)onsibility. A judgment had been entered on the bond, and a fieri
facias issued and levied on personal property. Tiie plaintiffs proved tliat the property
was sufficient to secure payment of the judgment. The indorser was discharged. Gib-
son, C. J., after referring to the fact that an assignment of all the maker's estate consti-
tutes a waiver, said : " But the supposed waiver of notice, in consideration of a chose
in action given as a collateral security, contingent and inadetiuate to produce perfect
safety, as every chose in action must be, stands on a less firm foundation. The ac
ceptance of such a security is never thought to be a waiver by the parties themselves,
though it is frequently a motive for the act of indorsement. Collateral security is
cumulative in its very essence ; and it is never suffered to impair the ol)ligation of the
contract immediately between the parties. It may be accepted, tliough known to be
inadecpiate at the time, the indorser relying for the rest on the maker's oihcr means,
and his own energy of pursuit, when warned of tiic necessity of c.xei'ting it ; and it
would be contrary to the understanding of the parties to make the accej)tancc of such

CH. XIII.] EXCUSES FOR WANT OF NOTICE. 573

demnity, which is an act entirely distinct from, and unconnected

a security a substitute for notice. There can be no presumptive waiver of notice wftera
there has been no waiver of recourse to the maker; and the acceptance of a security
is not such, unless it has been taken in satisfaction. Notice may be necessary to make
the very .security available on which the indorser is supposed to have relied, but which
lie may have reserved for the critical moment. A judgment bond, which was the secu-
rity in this instance, is seldom entered up immediately; and the indorser ought to have
notice when the time for action has arrived ; for by the delay of a day or an hour the
golden opportunity may be lost. The banks often take such bonds, ostensibly for their
own security, but to be entered at the request of the indorsers ; yet no one ever thought
that the indorsers were therefore not to have notice. The ])ractico is veiy common.
In this case there was no real estate to be bound, and an immature judgment would
have been fruitless ; but there was the more need of notice of dishonor to expedite
an execution, when the time came, against the maker's personal [iroperty. He was an
indorser of accommodation paper; and, as a surety is held to nothing which is not ex-
plicitly exacted by his contract, he is not presumed to have relinquished any of its priv
ileges. This doctrine of waiver in consideration of a security has no footing in West-
minster Hall ; for the indorser in Corney v. Da Costa, (1 Esp. 302, supra, p. 561, note/,)
which has been referred to as the germ of it, received effects from the drawer to tho
amount of the note, and thus became the party to take it up. The property was put
into his hands avowedly for that purpose, and he conseqixently took the place of tha
principal debtor. .... I grant that, where the security is money or effects, put into his
hands to satisfy the debt, he changes place with the maker, and loses his original char-
acter ; he is no longer an indorser, and cannot claim the privileges of one. But no
judge has said that a chose in action transferred to meet, not the note at its maturity, but
tlie contingency of the indorser's eventual liability, dispenses with notice to him ; or

that, as a collateral security, it is a waiver of his recourse to the maker It would

seem that Chancellor Kent's conclusion from these authorities, 3 Com. 113, that notice
is not required where the indorser has protected himself by an assignment or collateral
security, is not sustained by them, as a princijde applicable to all cases in every variety of
circumstances. The true criterion seems to be the obligation to take up the note. When
that remains with the maker, it continues to be the duty of the indorsee to apprise the in-
dorser of the maker's default ; where it has devolved on the indorser himself, he needs
no notice. Certainly a bond and warrant taken, to be held in reserve, cannot turn his
contingent responsibility into an absolute one, and dispense with performance of the
condition of demand and notice as part of the title." In Moore v. Cofheld, 1 Dev.
247, the defendant had sold a tract of land to the maker and taken the note of the latter,
who also executed a deed of trust to secure the defendant for the payment of the note.
Held no waiver of due demand. In Denny v. Palmer, 5 Ired. 610, the makers had
assigned to a third party as trustee property sufficient, it seems, to cover the liability of
the defendant. The latter was discharged, because notice was sent to the wrong post-
office. In Dufour v. Morse, 9 La. 333, the notice was delivered to a person who was
not shown to be authorized to receive it. The indorser took a mortgage of the maker
as security, when he indorsed. He was discharged. Martin, J. said : " Here the in-
dorser received nothing but a mortgage for his indemnification. He might well ex-
pect that the duty and interest of the maker would prompt him to prevent the protest
of the note. He knew tliat the only obligation ho had incurred towards the holder of
the note was to pay it in case the maker did not, and after being duly and legally
notified of the failure and neglect of the maker to take it up. Towards the latter, tha
indorser incurred no obligation. The mortgage was a useless paper in the hands of

574 NOTES AND BILLS. [CH. Xm.

with, the note itself, should have the effect of changing the un-
dertaking of the indorser from a conditional to an absolute
one.(^)

The additional reason has been given, that notice may be
essential to the indorser, in order that he may take the proper
steps to render his security available, and a delay may often be
as prejudicial in this respect as wlien no indemnity at all has
been taken. («) Stress has sometimes been laid on the particular
kind of the security taken, such as choses in action and the
like ; (v) but we doubt whether this should make any difference
in the law. The fact that the security is conveyed to a trustee,
instead of directly to the indorser, has also been somewhat re-
lied upon,(i^) but there does not appear to be any good reason
why this fact should change the character of the act.

The answer to the objection, that the whole object in requiring
notice is attained as soon as the indorser is indemnified, is, in
our opinion, that, whatever may have been its effect in the grad-
ual formation of the law, the requirement of notice has at last
settled down into a strict technical right, and an appeal to origi-
nal reasons has become less frequent and less influential.

If, however, there is anything in the acts or words of the
indorser, at the time the security is received, which, by fair
construction, imply or show an agreement by him to consider

the defendants. The inchoate and conditional obli;ration wliich resulted from the
indorsement never became perfect and absolute. The indorser, nor those wlio represent
him in this case, have not suffered, nor can tlicy now suffer any injury, for the indemni
fication of which they could resort to the mortgage. The defendants are precisely in
the same situation as they would be if no mortgage had been taken."

{t) Bissell, J., sujira, p. 572, note s ; Gardiner, C. J., id.

(m) Bissell, J., supra, p. 572, note s ; lugraham, J., id. ; Gibson, C. J., id.

{v) Gibson, C. J., supra, p. 572, note s. In Dufour v. Morse, 9 La. 333, ^farlin, J.
said : " It is contended, that, as the indorser was secured against any loss, there was no
necessity of giving him any notice. This may be the case where a creditor is secured
against the effect of the indorsement by the receipt of a sum of money, other notes, bills,
or property. In such a case he may be viewed as having undertaken to apply the
money he had received, or that which the notes, bills, or other projierty may afford him
the means of obtaining, to the discharge of his conditional obligation. lie may be
viewed as an agent who has undertaken to pay, and therefore cannot be said to bo
disappointed if his principal, relying on the performance of the obligation of his friend,
takes no further steps for the payment of the note." In Bruce v. Lytic, 13 Barb. 163.
166, Hand, J. said : " But if the indemnity is only by way of lien, or by a countev
bond, it seems to me there should be an express promise."

(it") /iiiffin, C. J., in Denny v. Palmer, 5 Ired. 610, 630.

CH. Xm.] EXCUSES FOR WANT OF NOTICE. 575

liiinsclf the party primarily liable on the note, and directly re-
sponsible for its payment, the case is entirely different, and in
this point of view only we think that taking the security op-
erates as an extinguishment of his right to demand and notice.
In other words, and in the language of Chief Justice Gibson, (.r)
" the true criterion seems to be the obligation to take up the
note." (i/) We should be glad to see a peremptory rule estab-
lished, that notice should always be given, unless the indorser is
under an unconditional obligation to take up the note.

SECTION lY.

OF EXCUSES FOR NON-NOTICE, GROUNDED ON A WAIVER OF THE RIGHT
TO REQUIRE NOTICE.

The excuses for non-notice, grounded on a waiver — actual
or constructive — by the party entitled to require notice, are so
numerous, and rest on such a great variety of circumstances,
that it is thouglil best to present them under different heads.
These will be, 1. when the waiver is in writing on the note or
bill ; 2. when it is inferred from acts of the drawer or indorser ;

(ar) Kramer v. Sandford, 4 Watts & S. 328, 331, cited supra, p. 572, note s.

(y) This seems to have been one of the principles upon which Corney v. Da Costa, 1
Esp. 302, supra, p. 561, note /, was decided, as appears from the language of Buller,
J., although it may have been that all the maker's property was assigned. Parke, B., in
Carter v. Flower, 16 M. &. W. 743, 751, cited tlie case as authority for the remark that
" The cases in which the indorser has been held liable without notice have had some
other material circumstances, as, for instance, that he had funds put into his hands by
the drawer, out of which he was to pay the bill or note. Mead v. Small, 2 Greenl. 207,
supra, p. 568, note o, may be sustained upon this ground. See the remarks of Parker, C.
J., in Woodman v. Eastman, 10 N. H. 359 ; Gibson, C. J., Kramer v. Sandford, 4 Watts
& S., 328, supra, p. 572, note s; Martin, J., Dufour v. Morse, 9 La. 333, supra, p. 574,
noter; Hand, J., in Bruce v. Lytle, 13 Barb. 163, supra, p. 574, note v ; Martel v. Tu-
reaud, 18 Mart. La. 118, where there was an assignment and a promise, and the indorser
was held, without notice; Taylor v. French, 4 E. D. Smith, 458, where the indorser
was held, although the check was protested prematurely, he having on the day of pro-
test told the holder that the drawer could not pay, having made an assignment, in
which he, the indorser, was preferred. See Coddington v. Davis, 3 Denio, 16, infra, p.
578, note (/. In Moon r. Haynie, 1 Hill, S. Car. 411, the plaintiff proved that, at or
about the time the note fell due, the defendant, an indorser, sent him a message that he,
the defendant, " had taken back from the maker the lani for which the note was given,
and that he had become paymaster for the amount to the plaintiff, but that he did not
mean to pay it, as the property received for it was not as represented by the plaintiff."
No demand and notice were held necessary.

573 NOTES AXD BILLS. [CH. XHL

3. where the waiver occurs on the day of maturity ; 4. where it
occurs after maturity ; 5. by whom the waiver is made ; 6. to
wliom the waiver is made ; 7. of presumptive evidence iu the
question of waiver.

1. When the Waiver is in Writing on the Note or Bill.

Demand and notice may be waived by an indorser's writing
over his signature the words, " I waive demand and notice," (a)
or " waiving demand and notice." (b) Any other words, which
by fair and reasonable construction imply an intent to waive
demand and notice, will have this effect,(6') we think ; although
there is authority to the effect that such waivers are to be con-
strued strictly. (^) There is conflicting authority on the point
whether the words, " I waive protest," on a note or an inland
bill, constitute a waiver of both demand and notice, or not. It
seems to have been hel^l by high authority, that these words
alone, on a promissory note, are so uncertain as not to imply a
waiver of demand and notice, except in connection with other
words and acts, from which such an intent can be inferred. (e)

(a) Woodman v. Thurston, 8 Cush. 157.

{h) Jolinston v Searcy, 4 Yerg. 182, where the indorser was held, although the plain-
tiff neglected to sue for more than fifteen months after maturity, during which time the
maker was solvent, but after which he had failed.

(c) Weston, J. said, in Fuller v. McDonald, 8 Grecnl. 213 : " It is not necessary
tliat a waiver should be direct and positive. It may result by implication from usage,
or from any understanding between the parties, wliich is of a character to satisfy the
mind that a waiver is intended."

(d) Wall V. Bry, I La. Ann. 312; Bird v. Le Blanc, 6 La. Ann. 470, wlicrc Eiistis,
C. J. said : " It is not desiral)le, in a mercantile community, that the defaults to pay
bills or notes when due should be kept secret. It enai)les insolvents to maintain a false
credit. We have had cases before us in which the waivers of protest have been the
means of misleading the public as to the real situation of parties, and producing great
injury thereby ; and this is a strong reason for holding to tlie old rule, and not encour-
aging waivers of protest by giving them a large construction."

(e) In Union Bank v. Hyde, 6 Wheat. .572, the writing, signed by the indorser, was
in tlic following words : " I do request that hereafter any notes that may fall duo in
tlie Union Bank, on wliich I am, or may be, indorser, shall not be protested, ns I
will consider myself bound in the same manner as if the said notes had been, or should
be, legally protested " This was licld a waiver of demand and notice, both parties
having had a course of dealing founded on lliat construction. Johnson, J. said : " Two
constructions have been contended for, the one, literal, formal, and vernacular; the

Other, resting on the spirit and meaning, as a mercantile and bank transaction

By some assumed analogy, or mistaken notions of law, this ))racticc of i)rotesting inland
bills has now become very generally prevalent; and since the inundation of the country

CH. XIII.] EXCUSES FOR WANT OF NOTICE. 577

These words have also been held to constitute a waiver of do-

with bank transactions, and the general resort to this mode of exposing the breaches
of punctualit3' which occur upon notes, a solemnity, cogency, and legal effect have
been given to such protests in public opinion which certainly has no foundation in the
law merchant. The nullity of a protest on the legal obligations of the parties to an
inland bill, is tested by the consideration that, independently of statutory provision, if
any exists anywhere, or conventional understanding, the protest on an inland bill is no
evidence in a court of justice of either of the incidents which convert the conditional
undirtaking of an indorser into an absolute assumption. The protest belongs alto-
gether to foreign mercantile transactions, upon which, on the contrary, it is an indis-
pensable incident to making the drawer of a bill or indorser of a note liable. On
foreign bills, it is the evidence of demand, and an indispensable step towards the legal
notice of non-payment, in consequence of which the undertaking of the drawer or
indorser becomes absolute. Hence, as to foreign transactions, it is justly predicated of
a protest, that it lias a legal or binding effect. But the writing under consideration
has a reference exclusively to inland bills, and as to them the protest has no legal or
binding effect. The indorser became liable, only on a demand and notice, and of
these facts the protest is no evidence. How, then, shall the waiver of the protest be
adjudged a waiver of demand and notice, or, in effect, convert his conditional into an
absolute undertaking ? Had the defendant omitted one word from his undertaking, it
would have been difficult to maintain an affirmative answer to this proposition. But
what are wo to understand him to intend, when he says, ' I will consider myself
bound in the same manner as if said notes had betn or should be legally protested ' ?
Except as to foreign bills, a protest has no legal binding effect, and as to them it is
evidence of demand, and incident to legal notice It either, then, had this meaning, or
it Iiad none. This reasoning, it may be said, goes no farther than to a waiver of the
demand ; but what effect is to be given to the word " bound " ? It must be to pay the
debt, or it means nothing. But to cast on the indorser of a foreign bill an obligation
to take it up, protest alone is not sufficient ; he is still entitled to a reasonable notice in
addition to the technical notice communicated by the protest. To bind him to pay the
debt, all these incidents were indispensable, and may therefore be well supposed to have
been in contemplation of the parties when entering into this contract. It is not un-
worthy of remark, that the writing under consideration asks a boon of the plaintiff for
which it tenders a consideration. It requests to be exempted from an expense, expos-
ure, or mortification, on the one hand ; and. on the other, what is tendered in return 1
The intended object, and conceived effect, of the protest, on the one hand, is to convert
his undertaking into an unconditional assumption, and the natural return is to make his
undertaking at once absolute, as the effectual means of obtaining the benefit solicited. If
this course of reasoning should not be held conclusive, it would at least be sufficient to
prove the language of the undertaking equivocal ; and that the sense in which the par-
ties used the words in which they express themselves may fairly be sought in the prac-
tical exposition furnished by their own conduct, or the conventional use of language
established by their own customs or received opinions. On this point, the evidence
proves that, by the understanding of both parties, this writing did dispense with de-
mand and refusal ; that the company, on the one hand, discontinued their practice of
putting the notes indorsed by the defendant in the usual course for rendering his as-
sumption absolute, and the defendant, on the other, continued up to the last moment to
acquiesce in this practice, by renewing his indorsements without ever requiring demand
or notice. This was an unequivocal acquiescence in the sense given by the companv
to his undertaking, and he cannot be permitted to lie by and lull the company into a
Vol. I.— 2 M

578 NOTES AND BILLS. [CH. XIII

mand, but not of notice, (/) the courts adopting, in tliis instance,
the strict construction. But there is authority to the effect that
a waiver of protest is a waiver of both demand and notice ; (»•)
because the term " protest," although, in its strict sense, appli-

state of security, of wliich he might at any moment avail himself, after making the
most of the credit thus acquired."

(./") Wall V. Bry, 1 La. Ann. 312, where the writing was in these words : " Wc hereby
waive protest, and acknowledge ourselves as fully bound for the within note, as if the
same was legally protested." Bird v. Le Blanc, 6 id. 470, where the words were, " I
hereby waive protest on the within note."

(g) See Coddington v. Davis, 1 Comst. 186, 3 Denio, 16. The instrument was as
follows : " Please not protest T. B. Coddington's note, &c., and I will waive the neces-
sity of the protest thereof." There were other circumstances in the case, but Jeicett, J.,
in the Supreme Court, expressly says that the writing was a sufficient waiver of notice,
and the Court of Appeals founded their decision upon it. Gardiner, J. said : " The
term 'protest,' in a stWct technical sense, is not applicable to promissory notes. The
word, however, as I appnhend, has by general usage acquired a more extensive sig-
nification, and, in a case like the present, includes all those acts which, by law, are
necessary to charge an indorser. When among men of business a note is said to be
protested, something more is understood than an official declaration of a notary. The
expression would be used indifferently to indicate a series of acts necessary to convert
a conditional into an absolute liability, whether those acts were performed by a mere
clerk or a public officer. It is obvious that the word was used in its popular accepta-
tion by the defendant below. He requests the indorsees ' not to protest the note, and
that he would waive the necessity of protest thereof.' The protest to which the indorser
alluded was something ' necessary ' to be done ; something also for the benefit of the
indorser, for he assumed to waive it. It could not, therefore, be a memorandum, or a
declaration made by a notary, because neither of them were required. Nor could ho
have intended to waive that which, whether pci-formed or omitted, his right would in no
manner be affected. The only things necessary on the part of the indorsees were, a
demand of payment of the maker, and notice to the indorser. By waiving the neces-
sity of protest, the defendant dispensed with both, or his communication is destitute of
all meaning. It was argued, indeed, that the defendant might have referred to the
notarial certificate authorized by statute. But this certificate is made prima facie evi-
dence of a demand and notice in favor of the indorsees It is for tlieir benefit. The
defendant, in making such reference, must have supposed that the certificate was neces-
sary evidence, because he waives the necessili/ of a protest wiiich, according to the argu-
ment, is equivalent to dispensing with the necessiti/ of a notarial certijicate. Now to
every fair mind waiver of proof necessary to establish a particular fact is equivalent to
an agreement to admit it. Whether, therefore, the defendant, by waiving the necessity
of a j)rotest, intended to dispense with demanil and notice, or with the evidence of them,
the result would be the same ; and in cither case he is concluded by his own stijuilation
from raising the objection taken upon the trial. I agree with the learned judge who
delivered the opinion of the Suprem(! Court, that the circumstances attending tlic writ-
ten stijmlation of the defendant confirm this view ; but I prefer to rest my opinion upon
the letter alone, as furnishing prima facie evidence of an intent, by the intlorser, to
waive demand of payment and notice, to which he was otherwise entitled." See Scott
r. Greer, 10 Penn. State, 103. In Duvall v. Farmers' Bank, 7 Gill & J. 44, 9 id. 31,
the agreement was as follows : " Whereas I am indorser of three notes, &c., and '.vhcreas,

CH. XIII.] EXCUSES FOR WANT OF NOTICE. 57S

cable to a foreign bill alone, yet, in ordinary language, means
the taking of such steps as the law requires to charge an in-
dorser. We think this the better view, for several reasons ;
because otherwise the agreement can have no meaning what-
ever ; because there is no good reason why a written instrument,
purporting to constitute a waiver, should be construed differ-
ently from other instruments; and from analogy to the cases
respecting the form of notice, where, as has been seen,(/i)
the word " protest," used with reference to a note, or an
inland bill, by the weight of authority, means that the ordi-
nary steps have been taken, with regard to the note, to charge
the indorser.

The words "eventually accountable," (i) "holden,"(y) have
been said to imply a waiver of demand and notice.

It has been said that the words " surety," or " security,"
placed after an indorser's name, is no waiver of demand and
notice ; (k) but this may, we think, be doubted. A surety on a
note has liabilities essentially distinct and separate from that as
indorser ; and unless the fact that the name of the indorser is
written on the back of the note necessarily makes him an in-
dorser, and nothing more, which is very doubtful, we do not

at my request, the bank which holds the said notes has agi'ced not to protest the same,
or to ask a renewal of them when they become due, I do hereby agree to dispense with
all notice of the time of payment, or of the non-payment of said notes, and to be
answerable for the amount of said notes, although no such notice is given to me."
Held a waiver of demand and notice as to a note not due at the time the agreement
was signed.

(A) Supra, p. 471.

{i) Weston, C. J., McDonald v. Bailey, 14 Maine, 101 ; recognized by Shepley, J.,
Burnham v. Webster, 17 id. 50.

(j) Bean v. Arnold, 16 Maine, 251, where the note was overdue at the time of in-
dorsement; Shepley, J., Burnliam v. Webster, 17 id. 50; Blanchard r. Wood, 26 id.
858. where the note was not due at the time of indorsement.

(k) Bradford v. Corey, 5 Barb. 461, Paige, J. said: "In this case, the addition of
the word 'surety' or 'security' to the indorsement of the defendants' names on the
note in question did not divest them of their char.acter of indorsers. The only effect
of the addition of these words to their signatures was to give them the privileges of
sureties, in addition to their rights as indorsers. As indorsers, they could not be made
liable without a demand and notice ; and as sureties, they were entitled to all the
privileges of that character." This is, however, only a dictum. It is somewhat diffi-
cult to see what is meant by a party who has all the rights of an indorser with all
the privileges of a surety. Previous to being charged by demand and notice, an in-
dorser is an indorser, and not a surety. After the proper steps have been taken, he
Becomes a surety.

580 NOTES AND BILLS. [CH. Xm.

see wlif the effect of these words is not to make him a surety,
and consequently not entitled to ordinary demand and notice.
The word "backer," placed after the indorser's name, has also
been held to be no waiver of demand and notice. (/)

In short, whatever words constitute a guaranty will be a
waiver of regular demand and notice ; because, as will be
seen,(w) the ordinary rules with regard to demand and notice
are inapplicable to guaranties. What form of words amounts to
a guaranty will be considered subsequently. (»)

But although an instrument purporting to constitute a waiver
is to be fairly construed, yet it cannot be extended beyond the
import of its terms. Thus, a waiver of notice is not a waiver
of demand, (o) because the two have meanings entirely distinct
from one another, and it would be an unauthorized stretch of
construction to declare them equivalent. We have seen that the
words " eventually accountable " have been said to be a waiver
of both demand and notice, (/>) but where there are other words
which limit and define these, the case may be different. Thus,
" I liold myself accountable, and waive all notice," have been
held to imply waiver of notice alone ; (q) because all the words
take]i together show such to be the intent. But an agreement

(I) Seabury v. Hungerford, 2 Hill, 80.

(m) Lifra, chapter on Guaranty.

(n) Infra, chapter on Guaranty.

(o) Berkshire Bank v. Jones, 6 Mass. 524; Deivey, J., Low b. Howard, 11 Cush.
268,270; Drlnkwater v. Tebbetts, 17 Maine, 16, where the words were, " Holden
without notice " ; Burnham v. Webster, id. 50, where the words were, " I hold myself
accountable, and waive all notice " ; Lane v. Steward, 20 id. 98 ; Buchanan v. Mar-
shall, 22 Vt. 561. See Backus v. Shipherd, 11 Wend. 629. Cotitra, Matthcy v. Gaily,
4 Calif. 62.

(/>) Stt/tra, p. 579.

(7) Burnham v. Webster, 17 Maine, 50, where Shcylcij, J. said : "In this case there
is a waiver of notice, but not of presentment, unless the words, ' I hold myself account-
a])le,' taken in connection with the other words used, can be considered as dispensing
with a presentment. The inquiry is suggested. How accountable'' And the answer
would seem necessarily to be, I waive all notice, and hold myself accountable. This
answer employs every word of the instrument, only transposed, and gives to each its
proper meaning. To give a different answer to the question, and say, I hold myself
accountable absolutely, would dispense with the words " and waive all notice," giving
to them no meaning. To answer, I waive all notice and demand, would be to give
greater effect to the words than the decided cases permit. The indorser may say, ' I
did indeed waive all notice, and held myself accountable, but I never did waive a pre-
sentment, and now insist upon it' ; and the court cannot, consistently with the decided
cases, de])rivc him of the right to make such an answer "

CH. Xm.] EXCUSES FOR WANT OF NOTICE. 581

by an indorser to consider himself responsible without requiring
notice, if the note could not be collected of the maker by due
course of law, has been held a waiver of both demand and
notice, (r)

Bills may be drawn " acceptance waived." This docs not
deprive the instrument of its character as a negotiable bill of
exchange, but its effect is simply to merge the ordinary proceed-
ings on acceptance or non-acceptance into those of payment or
non-payment. (5)

The waiver may be written upon the note or bill at the time
of signing ; or after that time and before maturity,(^) in which
case no consideration is necessary, because the indorser would
be estopped from setting up in defence a want of demand or of
notice ; (w) or the agreement may be upon a separate paper,

(r) Backus v. Shiphcrd, 11 "Wend. 629.

(s) See English v. Wall, 12 Rob. La. 132; in Denegre v. Milne, 10 La. Ann. 324,
Slidell, C. J. said : " We do not consider the expression ' acceptance waived,' as strip-
ping the instrument of the character of a bill of exchange, or depriving its signers of
the character and rights of drawers of a bill of exchange. These were merely quali-
fied, and to this extent ; the insertion of these words created between the drawers and
the payee, and those subsequently taking the bill, an agreement that the drawees should
not be required to accept the bill upon its sight. Without these words, it would have
been the holder's right to insist upon an acceptance upon presentment, protest the bills
if acceptance were refused, and take his immediate recourse against the drawers. With
them, he had only the right to exhibit the bill for sight, to fix the date of maturity,
which was done; and was bound to wait until maturity for payment by the draw-
ees, at which time the drawers engaged it should be paid by the drawees. Upon
failure of payment, protest, and notice, the liability of the drawers, which was previ-
ously conditional, would, in general, become absolute. No adjudged case militating
with this view of the rights of those parties has been referred to or cited ; and we are
satisfied that the construction we give would be in accordance with the understanding
of men of business, and meets the understanding of the parties themselves when the bill
was drawn and negotiated. The validity of the instrument as a bill of exchange, its
essential character as a bill of exchange, are not destroyed by such a qualification.
[t is still a request to the drawee by the drawer, to pay a sum of money to the payee,
or his order, absolutely, and at a time mentioned in the bill."

(t) Wall V. Bry, 1 La. Ann. 312.

(u) In Wall V. Bry, 1 La. Ann. 312, SlldcU, J. said : "It is proved that the indorse-
ment of the defendant was made some months anterior to the indorsement and signa-

tare of the waivers The defendant urges that it was not binding, because made

without consideration. The pica that the waiver was without consideration cannot avail
the defendant. It was made before the maturity of the note ; the holder may have
regulated his conduct, in not protesting the note, by the defendant's waiver, confiding
in it; and to relieve him from it now would be sanctioning a breach of good faith, and
pen.iitting that party to gain by his own disingcnuousness."
49*

582 NOTES AND BILLS. [CH. Xm.

coiiten:^poraneous with, or subsequent to, the indorsement, (z;)
even before the note is indorsed, (t^;)

2. WJien the Waiver is inferred from Ads of the Indorser or

Drawer.
Demand and notice may be waived by an act of the indorser
or drawer, calculated to put the holder off his guard, and pre-
vent him from treating the note as he would otherwise have
done. (a:) Or where the indorser or drawer has himself been the
means of preventmg the note or bill from being honored. (//)
Thiis, when the indorser received a written agreement from the
holder, in which the latter promised to sue the makers, and to
use all due diligence to collect the note from them, demand
and notice were held to be waived. (2) Also, where the indorser,
by agreement with the holder, agreed to extend the time of pay-
ment, (a) Or where such agreement, for a valuable considera-

[v) Spencer v. Harvey, 1 7 Wend. 489, where the indorser wrote to the holder a few
days before maturity, stating that the maker had failed, acknowledging liis liability,
and asking an indulgence until funds could be realized from security given by the
maker. Held a waiver of demand and notice. Coddington ?). Davis, 1 Comst. 186,
3 Denio, 16 ; Duvall v. Farmers' Bank, 7 Gill & J. 44, 9 id. 31.

[w) See Union Bank v. Hyde, 6 Wheat. 572. For the words of tliis agreement, see
supra, p. 576, note e. The case does not, however, state whether the instrument was
signed before the note in suit was indorsed. Sec also Duvall v. Farmers' Bank, 7 Gill
& J. 44, 9 id. 31, where there was one note not indorsed until after the agreement.

(x) Gove r. Vining, 7 Met. 212; Spencer v. Harvey, 17 Wend. 489; Bruce v.
Lytle, 13 Barb. 163; Taylor v. French, 4 E. D. Smith, 458; Phipsou v. Kncllcr, I
Stark. 116.

(y) Minturn v. Fisher, 7 Calif 573.

(z) Kyle V. Green, 14 Ohio, 490. In Bcnoist v. Creditors, 18 La. 522, the drawer
took a receipt from the payee, in which it was agreed that the bill should not be pro-
tested, in order to save costs. The funds for wliich the bill was drawn were tlicn in
litigation. Held that notice to the drawer was not necessary.

(a) Amoskeag Bank v. Moore, 37 N. H. 539, where tlie indorser, a few days before
maturity, signed the following agreement at the foot of the note : " Sept. 25, 1855.
We hereby agree that the above note may be extended for sixty days from this date."
On the 25th of September the makers paid tlie plaintiff the interest in advance for the
sixty days, which was indorsed on the note as interest jjaid for that time. No demand
was made upon the makers, cither at maturity or at the cxjjiration of the extended time.
Notice bad been expressly waived. The defendant was held. In Hidgway v. Day,
13 Penn. State, 208, the plaintiff wrote to the defendant before maturity, informing him
that the maker could not probably pay, and offering to extend the time of payment.
The dcfiiidatit agreed, and wrote, in reply, that he was "willing to extend the time for
thirty days longer, and of course will stand rcs|)()nsible for the payment of the note as
origiinilly intended." One or two further extensions were made. Held a waiver
of all demand and notice. See also the cases cited infra.

CH. XIII.] EXCUSES FOR WANT OF NOTICE. 583

tioii, lias been made between the maker and the mdorser, and
the hitter has transferred the note to the plahitiff, who was
wholly ignorant of the agreement. (&) So where the drawer de-
posited a particular kind of funds with the payee and indorser,
under an agreement between the parties that the proceeds of the
funds were to be applied to the payment of the bills, when due,
such arrangement was held to be a waiver of presentment, and
the indorser entitled to sue the drawer, if the funds were not
paid according to the agreement, (c) So demand and notice are
waived where the drawer of a check stops its payment at the

(b) Williams v. Brobst, 10 Watts, 111. Kennedy, J. said : "It is further allcj^ed in
the declaration, that the defendant, after receiving the note from the maker, and before
he passed it by indorsement to the plaintiff, .... agreed to forbear payment thereof until
one year after the time mentioned in the note for that purpose ; and that he passed the
note to the plaintiff, who was altogether ignorant of this agreement, without advising
him of it." The judge, after stating that it must be taken for granted that the consid-
eration was a valuable one, continued : " These facts show clearly that the defendant
had not dealt fairly with the j)laiiitiff, .... by suppressing the agreement which he had
previously made with the maker of the note, postponing the day of its payment. This
was certainly a very important circumstance, because it rendered the note of less value,
and ought, therefore, to have been disclosed by the defendant to the plaintiff at the time
he offered to indorse it to him. After having made such an agreement with the maker
of the note, for which he had received a valuable consideration, it would also have
been a fraud in him to have permitted the maker to be called on and compelled to pay
it before the time had arrived to which it was agreed between him and the maker that
the payment of it should be postponed. Upon this ground, therefore, he had no right
to require that the drawer should be called on first for payment, as soon as the note,
according to its terms, became payable ; but, on the contrary, was bound himself, in
justice to the maker, to have prevented it, by calling upon the plaintiff and paying the
amount thereof, so that the maker should have the benefit of the indulgence agreed on

between them The reason why the law requires that the indorsee of a note or bill

shall give notice to the indorser of non-payment is, that he may take the necessary

measures to obtain payment from the party or parties respectively liable to him

But the defendant had no right to claim notice, because if he had paid the plaintiff, and
taken up the note when at maturity, according to its face, he would have had no right
to demand payment of the maker for a year afterwards. It is no objection to this
course of reasoning, that the plaintiff might, notwithstanding the agreement, as he was
ignorant of it when he took the note, for a valuable consideration, in the ordinary
course of business, have compelled the maker to pay it as soon as it came to maturity,
according to its terms, because it would have deprived the maker of the indulgence
which the defendant was bound to give him ; and it does not lie in the mouth of the
defendant to say that he ought not to be made liable himself to pay the amount of
the note to the plaintiff, because the latter did not compel payment of the note from
fhe maker, when it would have been a fraud in the defendant to have permitted it, and
not to have prevented it by paying the amount thereof himself"

("^ Curtiss V. Martin, 20 111. 557.

584 NOTES AXD BILLS. [CH. XHI.

bank whore it is payable ; (d) and the same is true, we think,
witli reference to the drawer of a bill who has ordered the
drawee not to accept ; (e) but there is a Nisi Prius case, which
holds that this amounts to a waiver of notice, but not of de-
mand. (/) So where an indorser obtains possession of the note
before maturity, and withholds it until after that time, demand
and notice are waived. (.^)

There has been some conflict on the point whether a parol
promise to pay the note, made at the time of endorsing, or a
parol agreement between the parties that payment should not be
demanded until after maturity, is admissible to prove a waiver
of demand and notice. (A) Some of the earlier cases deny its

^<^rr*^'- admissibility, on the ground that the indorsement is a written
contract that regular demand shall be made and notice given,

^ ^^^\v\nc\\ cannot be waived by a contemporaneous parol agreement.

._^^^p/^ut we do not think this to be law, and are of opinion that

' ^""""^ the evidence may be introduced, because the conti'act is, not
that demand shall be made and notice given, but that due dili-
gence shall be used ; and evidence is admissible to prove
that such diligence has been uscd.(t) Indeed, the law seems

(d) Jiuks V. Dan-in, 3 E. D. Smitli, 557 ; Purchase v. Mattison, 6 Ducr, 587.

(e) Lilley v. Miller, 2 Nott & McC. 257, note a; Sutdiffe v. IM'Dowcll, id 251.
(/) lim'v. Heap, Dow & R., N. P. 57. Scdqtiwre.

(g) See Havens v. Talbott, 11 Ind. 323. There was also a promise iniule by the de-
fendant, before maturity, to pay the note.

(h) In the following cases it was held inadmissible. Barry v Morse, 3 N. H. 132 ;
Hightower v. Ivy, 2 Port. Ala. 308. In Fiee v. Hawkins, Holt, N. P. 550, 8 Taunt. 92,
the evidence was rejected. The court relied upon Iloare v. Graham, 3 Camp. 57, as
authority. But there is an obvious distinction between the two cases. In the latter,
the indorser's defence was, that the suit was premature, because, although it was
brought after the note matured, by a parol iigreemcnt the note was not to be sued
until a subsequent period. So it is settled that a maker cannot object to a suit on tho
same ground. But the evidence on the point now under consideration is not offered to
show that the indorser's lial)ility accrued at a different time from that mentioned in tho
note, but that the proper steps required by law had been taken.

(i) Barclay v. Weaver, 19 Pcim. State, 396, where Lowrie, J., liaving decided, at
Nisi Prius, that the evidence was inadmissible, changed his opinion after argument
before the full bench. He said, tlic question now is : " May a party prove, by oral
testimony, that, at the time of the indorsement of a promissory note, it was agreed that
the indorser siiould be absolutely bound for the jtayment of it, without the usual de-
mand and notice? This was answered in tlic negative, in tho court below, on the
principle that oral testimony cannot be hcaid to vary the terms of a written contract.
Tlic error consists in the assumption that the law regards an indorsement an a writ en
contract to pay, on condition tliut the usual drmaiid be made and notice giv.n. It ia

CH. XIII.] EXCUSES FOR WANT OF NOTICE. 585

quite clearly settled, that a parol promise to pay, made b}
the \udorser to the indorsee, at the time oi^,(j) or subsequent

not so. For where the indorser is himself the real debtor, as in the case of accommo-
dation notes and l)ills, or has taken an assignment of all the property of the maker as
security for his indorsement, or wlicre he can have no remedy against the maker, or in
the case of the drawer of a bill of excliange, whore tlic drawee is, and during the cur-
rency of the bill continues to be, without funds of the drawer, and in many other such
cases, demand and notice are not necessary ; and these circumstances may be proved
by parol testimony. The reason is, that in such cases demand and notice can be of no
use, and therefore the law does not require them. The most, therefore, that can be said
of an indorsement of negotiable paper is, that from it there is implied a contract to pay,
on condition of the usual demand and notice; and that this im])lication is liable to be
changed on the appearance of circumstances inconsistent with it, whether those circum-
stances be shown orally or in writing. But it may well be questioned whether the
condition of demand and notice is truly part of the contract, or only a step in the legal
remedy upon it. If it is part of the contract, how can it be effectually dispensed with,
without a new contract, for a sufficient consideration, especially after the maturity of
the note ? Yet there are decisions without number, that a waiver of it, during cur-
rency or after the maturity of the note, will save from the consequences of its omission.
This could not be if it was a condition of tlie contract, for then the omission of it
would discharge the indorser both morally and legally; and no new promise after-
wards, even with full knowledge of the fiicts, could be of any validity. If, however,
an indorsement, without other circumstances, be regarded as an implied contract to
pay, provided tiie holder use such diligence that the indorser lose nothing by his negli-
gence or indulgence, then it accords with all these decisions. Then the law, and not
the contract, declares the usual demand and notice to be in all cases conclusive, and
in some cases necessary, evidence of such diligence. The law imposes no vain duties,
and its general rules are subjected to exceptions in order to dispense with them ; but it
does not thus deal with contract duties. It is, therefore, perfectly consistent in declar-
ing tiiat an indorser is bound by a new promise, after he knows of the omission of
demand and notice; for this is an admission that he was not entitled to it, or has not
suffered for want of it. It declares demand and notice necessary, in some cases, to
save the indorser from loss, and it declares that his own admission may be substituted
for them. It seems, tlierefore, that the duty of demand and notice, in order to hold
an indorser, is not a part of tlie contract, but a step in the legal remedy, that may be
waived at any time, in accordance with the maxim, Qnilihet potest renunciare juri pro se
introdur.to ; and certainly an indorsement is not regarded as a written contract, so far as
to prevent oral proof that its terms differ from the ordinary contract of indorsement."
In the following cases it was held that a waiver might be proved by parol. Boyd v.
Cleveland, 4 Pick .525 ; Taunton Bank v. Richardson, 5 id. 436 ; Fuller v. McDon-
aid, 8 Greenl. 213; Drinkwater v. Tebbetts, 17 Maine, 16; Lane v. Steward, 20 id.
98 ; P^dwards ?;. Tandy, 36 N. H. 540 ; Farmers' Bank v. Wat)les, 4 Harring. Del. 429.
(j) In Boyd v. Cleveland, 4 Pick. 525, the holder remarked to the defendant at the
time the note was received, that he had no confidence in the otiier parties to the note,
H,nd did not know them, and should look wholly to the defendant. The defendant said
he should be in New York, where the plaintiff lived, when the note became due, and
would take it up if it were not paid by any other party to it. Held a waiver of notice,
and that an unsuccessful attempt on the part of the plaintiff to notify the defendant
did not affect the question. See Taunton Bank v. Richardson, 5 Pick. 436 ; Fuller
r. McDonald, 8 Greenl. 213, where the indorser, at the time the note was transferred,

5S6 NOTES AND BILLS. [CH. XEI.

to, (A) the indorsement ; an agreement to extend the time of

agreed to pay the note if the maker did not, and the holder took it, relying upon
thd inlorser's credit; Lane v. Steward, 20 Maine, 98, where the indorser piomised
to pay if the maker should not. There was also a promise subsequent to maturity.
In Wall V. Bry, 1 La. Ann. 312, there was a verbal agreement between the indorser
and the holder, that the former was to be responsible only in case payment could not
be obtained from the maker. Held that notice was waived. It docs not appear
whether the agreement was made at the time the note was transferred or subse-
quently. Contra, Staples v. Okines, 1 Esp. 332. In this case the acceptor was in-
debted to the drawer at the time the bill was drawn, but then informed the latter that
he would not be able to provide for the bill. It was understood between them that
the drawer was to provide for the bill when due. Notice to the drawer was held neces-
sary. Lord Kenyon said : " The law was general, only exempting the party from the
necessity of giving notice where the drawee had no effects ; and as here the drawee
was indebted to the defendant, on whom the bill was drawn, and so in fact had effects
in hand, and if he had had effects in hand when the bill became due, would have
taken it up, he was of opinion that notice was necessary." So, in Davis r. Gowen, 19
Maine, 447, the plaintiff" told the indorser, at the time the note was transferred, that
he would not take the note unless the indorser would pay it at maturity, and that ho
would not look to any other person for it. This statement, the defendant being called
on for payment, was not denied. The court said : " The defendant might have agreed
to pay the note at maturity, and the plaintiff may have apprised him, when he received
the note, that he relied altogether upon him ; yet the agreement of the defendant must
be understood to have been made with the implied reservation, that, if the maker paid,
he was not to be liable. He did not discharge the holder from the duty imposed upon
him, to demand payment of the maker at the maturity of the note. Tiiere is not
sufficient evidence in the case to change or modify his legal liability arising from the
indorsement."

(/■;) Sigerson v. Mathews, 20 How. 496, where the defendant told the plaintiff, six
months after indorsing, and eighteen months before maturity, not to protest the note,
as it should be paid at maturity. Held a waiver of demand and notice. Whiiney r.
Abbot, .") N. H. 378, where the indorser told the holder, a month before maturity, it
being ascertained that the makers had failed, that he should have no trouble about tlie
note, tiiat he, the indorser, would pay it, and was going to procure money to pay it.
Held a waiver of demand and notice. Edwards v. Tandy, 36 N. H. 540. In Leonard
V. Gary, 10 Wend. .504, the note was payable at ten days' notice. Demand was made
on Dec. 7th, and on Dec. 12th the defendant told tiic ])laintiff, that when lie indorsed
paper, he indorsed it to pay; that he would see the plaintiff paid, if it took every cent
in his pocket; he asked the plaintiff to give him time ; offered to give his note for the
debt, payable in a year, and, whether the plaintiff would take it or not, lie should be
paid ; and said that tiie plaintiff need give himself no uneasiness about it, as he would
see him paid, if it came out of his own pocket. Held a waiver of demand, at the ex-
piration of the ten days, and of notice. In Bruce v. Lytic, 13 Barb. 163, the defendant
told the plaintiff, the day before maturity, that he would pay and take up the note in
three or four days. Five days after maturity, an insufficient demand was made and
notice eiven. The defendant was held princi|)ally on the ground that demand and
notice had been waived. Wall v. Bry, 1 La. Aim. 312, s«/i»a, note ;'. In J.,ary r.
Young, 8 Etig. Ark. 401, tiic attorney of the holder reminded the indorser, a few
days before maturity, that the note would soon be due, and that the nu'kers had left
town. The indorser said that he owed the note ; that it was all right ; that be 'lud

CH. Xm.] EXCUSES FOR WANT OF NOTICE. 587

the payment ; (Z) a request made by the indorser for forbear

indorsed it to pay it; and if he was not there when it became due, that his agent would
pay it. Held a waiver of demand and notice. In Norton v. Lewis, 2 Conn. 478, de-
mand was made and notice given the day before maturity. But the defendant, an
indorser, in consideration that the holder of the note would wait until a future period
before suing, agreed to pay the note. The defendant was held. Collainer, J., Kussell
V. Buck, 11 Vt. 166, 17.5; Bmnelt, J., id. 182. See Burgh v. Lcgge, 5 M. & W. 418.
Contra, Davis v. Gowen, 19 Maine, 447, where the evidence was, that the attorney of the
plaintiff, on the tirst day of grace, demanded payment of the defendant, saying that the
])laintitf had directed the note to be sued immediately. The defendant replied that he
would i)ay it immediately, or see it paid. There was also a verbal agreement or under-
standing at tlie time the note was transferred. Supra, p. 586, notej. Held no waiver
of regular demand and notice In Jervey v. Wilbur, 1 Bailey, 4.53, the plaintiff's
attorney, in whose hands a note had been left for collection, said to the defendant, who
was an indorser of that note, that the plaintiff held other notes with his indorsement
on them ; and that he, the attorney, would give him no notice of the next suit be-
fore issuing process against him. The defendant replied that he wanted none ; for
he knew the maker was insolvent, and that the rest of the notes must be paid by
himself, which he would take care to do, before they could get into the attornev's
hands. Held no waiver of notice as to the notes not then due. One of the grounds,
however, for the decision was, that the declaration was made to a third party, who, at
the time, had no authority to represent the plaintiff. In Baker v. Birch, 3 Camp. 107,
the acceptor told the drawer, a few days before maturity, that he could not pay tho
bill, and that the latter must take it up. He also gave the drawer part of the amount,
to enable him to do so. The drawer received the money, and promised to take up
the bill. It was held, that the drawer might still set up want of due presentment
and notice in defence ; and that tlie money rcceived might be recovered as nionev had
and received to the plaintiff's use.

(/) Supra, p. 582, note a. In Williams v. Brobst, 10 Watts, 111, cited supra, p. 583,
notey, it is not stated whether the agreement was by parol or written. In Barclay v.
Weaver, 19 I'cnn. State, 396, a parol agreement to extend the time of payment was held
a waiver of demand and notice. In Farmers' Bank v. Waplcs, 4 Harring. Del. 429, the
indorser simply asked the bank not to protest the note, saying that he would always renew
his indorsement, and hold himself liable, without protest and notice. The note had been
allowed to lay over several times, and had been several times renewed. Demand and
notice were held to be waived. But in Oswego Bank v. Knower, Hill & D. 122. the
defendants had given to the maker several blank indorsements, without the notes being-
filled up. The maker had used them fbr the purpose of procuring discounts at the bank
of which he was president. The notes in suit grew out of accommodations at the
bank, for the benefit of the maker, which had commenced several years before these
notes were made, which notes were given in consequence of various renewals made
from time to time. None of the notes had been protested, by direction of tlip presi-
dent. The judge charged the jury, that, if the defendants knew that the previous notes,
the predecessors of those in suit, fell due, and they received no notice, and then again
indorsed the notes given in renewal, that they might infer a waiver of notice in respect-
to the note in question. This charge was held incorrect. Nelson, C. J. said : " Suppose
a power of attorney had been given to use the name of the defendants' firm as accom-
modation indorsers, which would have been no very uncommon case, could the idea
have been entertained, for a moment, that the simple indorsement would have made
them absolutely liable, or laid any foundation for such an infereace ? I apprehend

588

NOTES AND BILLS.

[CH. XIIL

ance ; (m) an agreement with a bank at which a note is discounted,
to attend to and take care of it, with directions that the bank notice
for the maker should be sent to the care of the indorser, even
thouo'h the agreement is made before the time of deliveriiio; the

nobody would contend for the proposition. And these blank indorsements are nothing
more than a standing power to that effect. If the defendants had intended to dispense
with notice, they would have signed, as makers, at once, and become absolutely bound.
The very f\ict of confining their security on the paper to the character of indorsers,
shows that they meant to limit their liability accordingly, and to be entitled to all the
benefits incident to it. An indorsement in blank, in judgment of law, is as precise and
distinct, and as well known and understood, as if the liability or condition of the usual
demand and notice had been written out upon the back of the paper; and nothing short
of the clearest evidence of the assent of the defendants, express or implied, siiould be
regarded as suflScient to waive the condition or change the nature of the contract,
making it an absolute instead of a conditional one. Upon the whole, I am satisfied
that, to allow the circumstances put forth here, whether taken separately or in the
aggregate as laying the foundation for an inference of a waiver of demand and notice,
would be going forther than any case has yet gone in dispensing with the contract of
the indorser, and ftirtber than will be consistent with the uniformity and stability of the
law, so important in respect to commercial paper. Indeed, if we analyze the facts in
the case, and reduce them to the particulars bearing upon the defendants, and for which
they may properly be held responsible, it will be found that there is little else in it
deserving the name of evidence, independently of the unlimited power given to the
brother to use the name of their firm as indorsers, leading, even in the remotest degree,
to an assent to the waiver. And we can hardly be expected to infer it from the fact
tiiat the power given to indorse is a general one. On the contrary, we sujipose that
the limitation of the liability assumed to that of indorsement, and that only, shows
clearly enough an intention to stand upon the ]iapcr in that character, and in tliat
only, however extended and onerous the liability might become."

(m) Lcffingwcll v. White, 1 Johns. Cas. 99, where the indorser informed the holder
that the maker had absconded, and said that, being secured, he would give a new note,
and requested time. While these negotiations were pending, the note fell due. De-
mand and notice were held to be waived. Gove v. Vining, 7 Met. 212, where tiio
note was payable at either bank in Boston. On the first day of grace the holder sent
a messenger with the note, and a written notice to the indorser requesting jiayment, to
'■ the house where the maker and indorser both resided. The maker was absent, but tiie
indorser read the notice, and told the messenger that the maker would sec the holder in
a short time, and expressed a wish that the note should not be sued until the indorscj
should see the holder. No demand was afterwards made of the maker, nor any notice
given to the indorser. Shaw, C. J. said : " Although this was stated as the rccpiest of
the prdmisor, yet it was made by the indorser, without any restriction or qinililicatiou
on lier part, and therefore may be considered the same as if it were her own. It was,
thfTefore, a request by the indorser to the holilers, through their agent, with full notice
thit the note was then nominally due, though not legally j)ayable till tiiree days after,
fo' forbearance of ])ayment. It was calculated to induce the holder to believe that tlio
pi-Zties who were liable were about making some an-angement or some jiroposal by
Wliich it would be paid, if he would forbear resorting to coercive measures for a short
time. And the court are of opinion that, when the indorser, at or shortly iie*bre tho
time when the note becomes due, says to tin' holder that an arrangcinciit for its \ ay-

CH. Xill.] EXCUSES FOR WANT OF NOTICE. 589

indorsement ; (n) an agreement by the indorser with the maker,
to pay the note and to take it back into his own liands ; (o) an
agreement by tlic indorser to pay, if the note could not l)e col-
lected oi" the maker by due course of law ;(/>') a verbal agree-
ment between the indorser and the indorsee, by which the latter
agreed to inform the maker of the indorsement, and to wait six
months after maturity before making cost upon the note ; (q) a
refusal by the drawer to give his address, with a declaration to
the holder that the acceptor would not pay, coupled with a prom
ise to call in a few days to inquire whetlier the bill liad been paid
or not ; (/■) a declaration by the drawer of a check, who was the
paying teller of the bank on which it was drawn, three days
before maturity, that the check would not be paid ; [s) part pay-
ment of a check before maturity, as it would seem ; (t) a decla-
ration by the indorser of a check to the holder, that the maker
cannot pay, that the latter has made an assignment, and has
therein preferred him ; {u) all have respectively been considered
as a waiver of demand and notice.

ment is about being made, and in direct terms or by reasonable implication requests
the holder to wait and give time, it amounts to an assurance that the note will be paid,
that the promisor or indorser will pay it, and is a waiver of demand and notice. It
tends to put the holder off his guard, and induces him to forego making a demand at
the proper time and place ; and it would be contrary to good faith to set up such want
of demand and notice, caused perhaps by such forbearance, as a ground of defence."
But in Sussex Bank v. Baldwin, 2 Harrison, 487, 495, the defendant sent a letter to the
cashier of the bank a week or two before maturity, stating that the maker could not
pay, and requesting that the note might be renewed. The defendant was discharged
for want of proof of notice.

(n) Taunton Bank v. Richardson, 5 Pick. 436. Held a waiver of demand and no-
tice, or at least evidence from which a jury might infer such waiver.

(o) Marshall v. Mitchell, 35 Maine, 221. Held a waiver of demand and notice.

(p) Backus V. Shipherd, 1 1 Wend. 629.

(q) Drinkwater v. Tebbetts, 17 Maine, 16, where notice was waived.

(r) Phipson v. Kneller, 1 Stark. 116, 4 Camp. 285, where notice was waived. Lord
Ellenhorough said : " No legal proposition can be more clear than that, where a party
says, ' My residence is immaterial, I will inquire whether the bill is paid,' he thereby
takes upon himself the onus of making inquiry, and dispenses with notice."

(s) Minturn v. Fisher, 7 Calif. 573.

{t) In Levy v. Peters, 9 S. & R. 125, 128, TiJghman, C. J. said: "If one draws a
Theck on a bank, payable some time after date, and before the time of payment the
drawer pays part, I should suppose it must be the intent of the parties that the check
should not be presented. I doubt whether the bank would pay the balance in such
case, without a special order from the drawer, or some written exi)Iaiuition. On this
point, however, I give no opinion, as the case docs not require it'"

(u) Taylor v. French, 4 E. D. Smith, 458.

VOL.. I. 50

590 NOTES AND BILLS. [CH. XIIL

Whoitlicr acts other than a promise to pay will constitute a
waiver or not has been also somewhat discussed. Thus, where
an indorser, after maturity, agreed with the maker to take up
the note, to give back to him the property for which the note
was given, and to return the note without further consideration,
this was held to constitute a waiver of demand and notice. (v)
A confession of judgment has also been held admissible evidence
of waiver, but not conclusive. (?/;) Where the drawer of a bill
which had been duly presented, but was unpaid, gave the holder
his own note for the amount, it was held that it was no de-
fence to the note to prove laches in giving notice of non-
payment of the bill ; (x) but the giving of a bond would seem
to have been held to be only prima facie evidence of waiver. (?/)
So where the drawer himself undertakes to present a bill after
maturity, (z) although inquiries and attempts by an indorser to
induce the maker to pay have been held not to be a waiver. (a)
The fact that an indorser appeared at the meeting of the cred-
itors, and assumed the character of a creditor for a large sum,

(v) Andrews v. Boyd, 3 Met. 434, where the defendant had sold the maker a vessel
for $ 2,800, of which S 800 was paid in cash, and the remainder by two notes for
$1,000 each. The defemlant offered evidence to show that the vessel, from fall in
prices, and from wear and tear, was not worth the amount of the notes. Held imma-
terial. S/iaiv, C. J. said : " When the indorser took back the property whicii was the
original consideration for the notes, and agreed in express terms with tlie promisors
that he would pay and take up the note now in suit, and deliver it to them without
further consideration, and this after the note became due, and after he must have
known whether he had received due notice of its non-payment or not, we cannot
perceive why this is not evidence from which a jury might properly infer that he had
received due notice of the non-payment of the note from the holder. But if this were not
clear, we are of opinion that, when the indorser took the ])roperty of the promisors into
his own hands, being either of sufficient amount and value to pay the note, or perhaps
being all they could give him ; and when, with such funds as they did furnish him
with, he agreed absolutely to pay and take up the note on which he stood as indorser,
witliout further consideration from them, it was a waiver of notice on his part "

(w) See Richter v. Selin, 8 S. &. II. 42."), where Duncan, J. said : " The confession
of judgment may be evidence of an acknowledgment of liability, but is not conclusive
evidence. It is not a legal presumption. It is capable of being explained and re-
pelled by the circumstances under which it w.as given. But if the defendant confessed
the judgment by any false suggestion of the drawers, and on the faith of a valid sccuiity
to indemnify him, whicli security was found to be immediately wortiiless, .... all this
would be evidence to repel tlie presumption arising from the judgment and security."

(x) Leonard v. Hastings, 9 Calif. 236.

(y) Ralston i;. Bullitts, 3 Bibb, 261 ; Mills v. Rouse, 2 Littcll, 203.

(z) See Cram v. Sherburne, 14 Maine, 48.

(rt) Hussey v. Freeman, 10 Mass. 84.

CH. Xni.] EXCUSES FOR WANT OF NOTICE. 591

including the note sued on, has been held no waiver of demand
and notice ; (b) but we should say that it might be regarded as
evidence of such waiver, (c)

Whether particular conversations amount to a waiver or not
has been held to be a question of fact for the jury, and not one
of law for the court, (^) but it has also been said that questions

(6) Miranda v. City Bank, 6 La. 740.

(d) Union Bank v. Magruder, 7 Pet. 287, where Story, J. said : " Tlie plaintiffs, on
the foregoing evidence, prayed the court to instruct the jury as follows : ' That, if the
jury believe the defendant held the above conversations as stated by the witnesses,
such conversations amount to a waiver of the objection of the want of demand and
notice ; and the defendant is liable on the note, if the jury should believe that the
defendant made the acknowledgments and declarations stated in the conversations
in reference to the claim of the bank upon him as indorser of the note.' Which
the court refused. And the plaintiffs then prayed the court to instruct the jury as
follows: 'That, if the jury believe, from the evidence aforesaid, that the defendant,
after knowing of his discharge from liability as indorser of the said note, by the neglect
to demand and give notice, said '• that he meant to pay the note, but should take his
own time for it, and would not put himself in the power of the bank " ; and that the bank
forbore bringing suit, from the time of said conversation, about three or four months
after the note fell due, until the date of the writ issued in this cause, then the plaintiffs
are entitled to recover on the second count of the declaration.' Which, also, the court

refused to give The question is, whether these instructions, thus propounded,

were rightly refused by the court. And we are of opinion that they were. The first
requests the court to instruct the jury upon a mere matter of Aict, deducible from the
evidence, and which it was the proper province of the jury to decide. It asks the court
to declare that the conversations stated, sufficiently loose and indeterminate in them-
selves, amounted to a waiver of the objection of the want of demand and notice.
Whether these did amount to such a waiver was not matter of law, but of fact; and
the sufficiency of the proof for this purpose was for the consideration of the jury. The
second instruction is open to the same objection. It calls upon the court to decide
upon the sufficiency of the proof; to establish that there was a forbearance by the
plaintiffs to sue the defendant upon the note, and of the promise of the defendant, in
consideration of the forbearance, to pay the same. That was the very matter upon
which the jury were to respond, as matter of fact. It is also open to the additional
objection, that it asks the court to decide this point, not upon the whole evidence, but
upon a single sentence of the conversations stated, without the slightest reference to
the manner in which the meaning and effect of that sentence was, or might be, con-
trolled by the other points of the conversations, or the attendant circumstances. In
either view, it was properly refused." So Carmichael v. Bank of Pennsylvania, 4
How. Miss. 567, where the court refused to charge, that the declarations of the defend-
ant, a second indorser, that the first indorser " considered that they were exonerated,
that he himself thought differently, there was no use in resisting, that the bills must
be provided for, and that the first indorser stood between him and danger, were not an
absolute promise, and did not amount to a waiver in law." Held, that the refusal was
correct. Lary v. Young, 8 Eng. Ark. 401. See Curtiss v. Martin, 20 111. 557 ; Whita-
ker V. Morris, Esp. N. P 58.

592 NOTES AND BILLS. [CH. XIH.

of waiver are matters of law.(e) We should say that the ques-
tion, whether a promise was really made, and what it is, taken in
connection with all the facts of the case, was a matter of fact, as
well as whether the promise was made with a knowledge of all
the material facts. But what construction is to be put upon the
promise and the knowledge, when proved, must be a question
of law.

3. Where the Waiver occurs on the Day of Maturity.

It will be seen that the general principle upon which most of
these cases on the subject of waiver before maturity depend is,
that the indorser has, by act or word, done something calculated
to mislead the holder, and induce him to forego taking the usual
steps to charge the indorser. The same principle would apply,
in our opinion, when the declarations are made on the day of
maturity. Thus, where the holder asked the indorser, on the
day the note matured, if it would be best to call upon the
makers, and the indorser replied that it would be of no use, a
regular demand and notice were considered as waived. (/) So a
verbal request by the indorser to the holder not to protest the
note was held to be a waiver of demand. (^)

(e) In Creamer v. Perry, 17 Pick. 332, Shaw, C. J. said: '' Thougii questions of duo
diligence and of waiver were originally questions of fact, yet liaving been reduced to a
good degree of certainty by mercantile usage, and a long course of judicial decisions,
they assume the character of questions of law ; and it is highly im))ortant that they
should be so deemed and api^lied, in order tiiat rules affecting so extensive and impor-
tant a department in the transactions of a mercantile community may be certain, prac-
tical, and uniform, as well as reasonable, equitable, and intelligible."

(f) See Barker v. Parker, 6 Pick. 80. There were other circumstances in the case,
but the court seems to have considered the conversation enough to amount to a waiver.
In Burgh v. Legge, 5 M. & W. 418, an action against the indorser of two bills due on
April 4th and 5tli, the defendant called on the plaintiff on April 4th, and said that ono
of the bills would not be paid, as the acceptor was bankrupt ; that the other bill would
not be paid, as he held some pictures as security, and had not been able to sell them ;
and tliat the acceptor had no other means of raising the money. He also said that it
was not worth while to trouble him with a twopenny-post letter, to give notice, as it
was not worth the money, and tliat he would bring the plaintiff some money the next
week, in part payment of the bills. Held no evidence to support an allegation of duo
notice, but that it probably would support an allegation of disi)cnsation of notice.

{(J) Scott V. Greer, 10 Penn. State, 103. But in Prideau.x v. Collier, 2 Stark. 57, the
drawee told the holder the day before maturity that he had no effects of the drawer in
his hands, but would probably be supplied before the next day. On maturity tlio
drawer told the holder that he hoped the bill would be jjaid ; that he would se*> what ho
could do ; would endeavor to i)rovide effects ; and would see him again. 'I'br idll was

CH. Xm.] EXCUSES FOR WANT OF NOTICE. 59S

With reference to the question whether a particular conversa-
tion amounts to a waiver, no general rule can be laid down,
except that the words used must be such as fairly to lead a rea-
sonable man to suppose that the indorser did not wish that the
regular course in making a demand and giving notice should be
[)ursued ; or such as would be calculated to prevent him from so
doing. But, on the other hand, the language must not be so
vaiiue, uncertain, and loose as to raise a reasonable doubt as to
what was intended. (/i) It will be seen that there is a marked

presented the day after maturity, and the drawer was discharged. Lord Ellenhorough
said : " The evidence shows that it was not likely that the drawees would accept tlie
bill, but it was possible that they might change their minds." It would seem some-
what ditlicult to reconcile this case with that cited supra, p 589, note r, and there
is certainly ground to contend that there was evidence from which a jury might infer
a waiver, on the ground that the drawer had, to use the language of the same judge
in that case, " taken upon himself the onus of making in(}uiry." So in Cayuga Co.
Bank ». Dill, 5 Hill, 404, the indorser called at the bank on the day of maturity, and
after observing that the note had come round, asked if it could not be renewed on pay-
ment of $100, and discount. He said that the maker was absent, and that the noto
would have to lie over until his return. The cashier expressed a willingness to renew
the note upon the terms proposed, if the defendant could do no better. On leaving the
bank, the defendant told one of the directors the conversation witii the cashier, adding
that the $ 100 dollars should be paid and the note renewed on the maker's re-
turn. The director assented to the renewal, and told the cashier to let the noto
lie. By mistake of one of the clerks, the note was not protested until three days
afterwards. On the day of protest the indorser called at the bank and inquired why
the note had not been protested. He was told that it would be protested in the
afternoon, whereupon he replied that it was too late, and refused to indorse a new note.
No notice was sent. The judge at Nisi Prius refused to nonsuit the plaintiff, at the de-
fendant's request, and charged that, under the circumstances, the plaintiff was entitled to a
verdict. The verdict was set aside and a new trial granted, Co«;«j, J., dissenting. Ntlson,
C. J. founded his opinion on the ground that the omission to protest and to give notice
arose, not from the conversations, but from the negligence of the clerk ; and that the
words used were too loose and uncertain to constitute a waiver. Cowen, J. was of opinion
that the conversation was fully sufficient to amount to a waiver, that it was um-easona-
ble for the defendant, under the circumstances, to object to want of demand and notice.
As to the conversation, the opinion of Cowen, J. is clearly the better. And as to the
effect of the want of protest being caused by the clerk's negligence, it may be observed,
that this appears contrary to the case of Boyd v. Cleveland, 4 Pick. .52.5, supra, p. .585,
note j, where notice was held waived, although the holder made an unsuccessful attempt
to notify the indorser. It may also be answered, that the question is not whether the
holder was actually misled, but whether, under the circumstances, a reasoiuibly prudent
man might not consider that the indorser had waived the necessity of notice. So also
if no protest at all had been made, or no attempt to protest, the indoiscr would prob-
ably have been held. It might be difficult, then, to see why an attempt to do that
which a party was not bound to do should deprive him of a right to which he would
be entitled in case no such attempt had been made.

(h) See Cayuga Co. Bank v. Dill, 5 Hill, 404 ; Prideaux v. Collier, 2 Stark. 57.. In

Vol.. I.— 2 N 50 *

594 NOTES AND BILLS. [CH. XHI.

difference between the waiver before and after maturity, as re-
gards the question what words will amount to a waiver, for the
obvious reason that, in the former case, the holder may be mis-
led, and prevented from presenting and giving notice, while, in
the latter, no such circumstance can occur, (t)

4. Wliere the Waiver occurs after Maturity.

The expression, " waiver of demand and notice after matu-
rity," though often used, is somewhat inaccurate. Properly
speaking, demand and notice can only be waived before matu-
rity ; but the party may, by words or acts subsequent to that
time, relieve the plaintiff from the necessity of proving demand
and notice, or render the fact that no demand was made or no-
tice given entirely immaterial. (y) The subject of taking secu-
rity before maturity, with reference to the bearing upon waiver,
has already been discussed, (A;) and it has been seen that the
authorities are somewhat in conflict. But it seems to be well

Gregory v. Allen, Mart. & Y. 74, the note was indorsed when overdue. By agreement
between the indorser and indorsee, the latter was not to make any demand until the
following May, when the maker was expected to return. The latter returned in July,
after the commencement of the suit. No demand or notice was proved. A witness
testified, that, a few weeks before the suit, he was present at a conversation between the
plaintiff and defendant ; that he told them that he expected to go to the place where
the maker then was in about a week. They agreed to send the note by him for col-
lection. Plaintiff then asked the defendant if he would be accountable for the amount
of the note if he, the plaintifl^', would wait until the witness returned. The defendant
replied, that he felt himself bound for tiie note as they had agreed. The understanding
of the witness was, that, if he carried the note and failed to get the money, tlie defend-
ant was to be accountable for it, not otherwise. The witness did not take the trij), and
the note was never sent, so far as he knew. A verdict for the plaintiff was set aside, as
against evidence, or unsupported by any. CV«W, J. said : "The well-sctticd rule of
law Is, that, to show a waiver of demand and notice, there must be dear and unequivo-
cal evidence." That is perhaps stating the rule too strictly, as regards a waiver be-
fore maturity. An agreement by the drawer and indorser of a bill with the bolder,
before the bill became due, that the holder should take any security, or make any
arrangement he thought proper to secure payment, without affecting their liabilities,
does not dispense with the necessity of demand and notice. Bank v. S]H'11, 2 Hill,
S. Car. .-366.

(i) Story on Prom. Notes, § 280 ; Scott, J., Lary v. Young, 8 Kng. Ark. 401.

( /) In Iloadley i;. Bli,ss, 9 Ga. 303, Nishct, J. said: "The presiding judge held that
the indorser could waive demand and notice before the note full due, and it is cxcc[)tcd
that this was an error. He could waive demand and notice at no other time. It is
true that he may, after it is due, waive his right to except to his liability, that is, waive
proof of demand and notice, and the presiding judge held nothing to the contrary of
this."

{k) Supra, j)i). 576 - 592.

CH XIII.] EXCUSES FOR WANT OF NOTICE. 595

settled, that taking security after maturity is no waiver, because
the reasons for considering security as a waiver do not apply. (Z)

Although there is great fluctuation and uncertainty in the
cases connected with this subject, yet the general principle
seems now to be settled, in this country, at least, and by the ear-
lier decisions in England, that, where no demand has been made
or notice given, a promise to pay, after maturity, made with full
knowledge of laches, is binding on the party promising ; and
removes entirely the effect of any negligence in making the
demand or in giving the notice. (m) The cases, however, are

(I) Tower i;. Durell, 9 Mass. 332, where the indorser had taken an assignment from
the maker, after maturity, of a suit then pending, and had also received part of the
rent of a house. Held no waiver of demand. Creamer v. Perry, 17 Pick. 332. In this
case, demand on the maker was made the day after maturity, and the indorser was
notified a few days after. There were two assignments, one before and the other after
maturity. The case does not disclose what the terms of the second assignment were.
Shaw, C. J. said : "The second assignment does not affect the question; it does not
appear to have been made till several days after the note became due." Otsego Co.
Bank v. Warren, 18 Barb. 290. In this case, the plaintiff offered to prove that the
defendant, the second indorser of a bill, took an assignment from the first indorser to
secure the former for all his liabilities for the drawers, and that the property assigned was
sufficient to cover the whole liability, including the draft in suit. Held, that the evi-
dence was properly excluded. Bacon, J. said : " If there has been no due presentment
or notice of dishonor, and the indorser, after the maturity of the note, even supposing
himself liable to pay the same, takes security from the maker, that will not amount to
a waiver of the objection of want of due presentment or notice ; since it cannot justly
be inferred that he intends at all events to make himself liable for the payment of the
note, but he takes the security merely contingently, in case of his ultimate liability."
See Burrows v. Hannegan, 1 McLean, 309 ; Richter v. Selin, 8 S. & R. 425, 439. An
agreement subsequent to maturity, to put into the hands of the holder certain mer-
chandise, is no waiver. Carter v. Burley, 9 N. H. 558. But it was held equivalent to
a promise to pay, and as the indorser must have known whether he had received notice
or not, such an agreement was held sufficient evidence of waiver in Debuys v. Mol-
lere, 15 Mart. La. 318.

(m) Sigerson v. Mathews, 20 How. 496, where the judge, at Nisi Prius, charged the
jury, that if, " after the maturity of the note, the defendant promised the plaintiflT or
his agent to pay the same, having at the time of making said promise knowledge of the
fact that the note had not been presented for payment, and that no demand had been
made therefor, or notice of non-payment given, the defendant cannot now set up, as a
defence to said note, a want of such demand or notice." Held correct. See Reynolds
V. Douglass, 12 Pet. 497, 505 ; Thornton v. Wynn, 12 Wheat. 183 ; Read v. Wilkin-
son, 2 Wash. C. C. 514; Martin v. Winslow, 2 Mason, 241 ; Creamer v. Perry, 17
Pick. 332 ; Hopkins v. Liswell, 12 Mass. 52 ; Byram v. Hunter, 36 Maine, 217 ; Hunt
V. Wadleigh, 26 id. 271 ; Davis v. Gowen, 17 id. 387 ; Cram v. Sherburne, 14 id. 48;
Groton v. Dallheim, 6 Greenl. 476 ; Edwards v. Tandy, 36 N. H. 540 ; Rogers v.
Hackett, 1 Foster, 100 ; Parker, C J., Merrimack Co. Bank v. Brown, 12 N. H.
320, 325 Woodman v. Eastman, 10 id. 359; Whitney i'. Abbot, 5 id. 378 ; Otis v.

596 NOTES AND BILLS. [CH. Xm.

t somewhat strict in their requirements, as they should be. In
the first place, there should be clear and distinct evidence of the
promise. (w) The following are instances m which it was held
that the promise was sufficiently made out. Where the indorser
of a note said to the plaintiff's agent, on being asked what to do,
that in a few days he would see the agent and arrange the
note ; (o) a declaration by the indorser, that when he returned he
would set matters to rights ; (p) an acknowledgment of the debt
by the drawer, with a promise to send funds with which to take

Hussey, 3 id. 346 ; Hosmer, C. J., Breed v. Hillhouse, 7 Conn. 523, 528 ; Brooklyn
Bank v. Waring, 2 Sandf. Ch. 1 ; Bruce r. Lytle, 13 Barb. 163; Tebbetts v. Dowd,
23 Wend. 379 ; Leonard v. Gary, 10 id. 504 ; Jones v. Savage, 6 id. 658 ; Trimble v.
Thorne, 16 Johns. 152 ; Griffin v. Goff, 12 Johns. 423 ; Miller v. Hackley, 5 id. 375 ;
Duryee r. Dennison, id. 248 ; Strong, J., Sherer v. Easton Bank, 33 Penn. State, 134,
141 ; Donaldson v. Means, 4 Dall. 109 ; Sussex Bank ». Baldwin, 2 Harrison, 487;
U. S. Bank v. Southard, id. 473; Barkalow v. Johnson, 1 id. 397 ; Beck v. Thomp-
son, 4 Harris & J. 531 ; Higgins i\ Morrison, 4 Dana, 100 ; Pate v. M'Clure, 4 Band
Va. 164; Walker v. Laverty, 6 Munf. 487; Moore v. Tucker, 3 Ired. 347; Gardi
ner v. Jones, 2 Murph. 429 ; Johnson. J., Allwood v. Haseldon, 2 Bailey, 457 ; Hall v.
Freeman, 2 Nott & McC. 479 ; Spurlock i'. Union Bank, 4 Humph. 336 ; Durham v.
Price, 5 Yerg. 300 ; Sherrod v. Rhodes, 5 Ala. 683 ; Kennon v. M'Rea, 7 Port. Ala.
175, where it was held that the promise might be made after suit brought ; Harvey v.
Troupe, 23 Missis. 538; Oglesby v. Steamboat, 10 La. Ann. 117, where the promise
was made after the commencement of the suit ; New Orleans Bank v. Harper, 12 Rob.
La. 231 ; Lacoste v. Harper, 3 La. Ann. 385 ; Glenn r. Thistle, 1 Rob. La 572 ; Hart
V. Long, id. 83, where the plaintiff had been nonsuited for want of proof of demand at
the place where the note was payable, and the indorser promised to pay while a motion
for a new trial was pending, the plaintiff's attorney having ex])laincd to him the reason
of the nonsuit; Union Bank v. Grimshaw, 15 La. 321 ; Bank of U. S. v. Ellis, 13 id.
368 ; Williams v. Robinson, id. 419 ; Debuys v. Moliere, 15 Mart. La. 318 ; Walker v.
Walker, 2 Eng. Ark. 542 ; Dorsey v. Watson, 14 Misso. 59 ; Wilson v. Huston, 13 id.
146 ; Prattc v. Hanly, 1 id. 35 ; Whitaker v. Morrison, 1 Fla 25 ; Sharkey, C. J., Rob-
bins V. Pinckard, 5 Smedes & M. 51, 70. The following English cases .arc authorities
to the same point. Whitaker v. Morris, Esp. N. P. 58 ; Anson v. Bailey, Bull. N. P.
276 ; Wilkes v. Jacks, Peake, 202 ; Rogers v. Stevens, 2 T. R. 713 ; Hopes i;. Alder, 6
East, 16, note ; Lundie v. Robertson, 7 East, 231, 3 J. P. Smitli, 225 ; Haddock r. Bury,
7 East, 236, note; Stevens v. Lynch, 12 id. 38, 2 Camp. 332; Biti/lri/, ,1., Brett v.
Levett, 13 East, 213 ; Potter v. Rayworth, id. 417 ; Hopley v. Dufresne, 15 East, 275 ;
Taylor v. Jones, 2 Camp. 105 ; Patter.son v. Becher, 6 J. B. Moore, 319 ; Vitw/lutn, B.,
Pickin V. Graham, 1 Cromp. & M. 725, 729 ; Fletcher t;. Froggatt, 2 (^ar. & P. 569 ;
Houlditch V. Cauty, 4 Bing. N. C. 411 ; Mills v. Gibson, 16 Law J., C P. 249.

(h) Mansfield, C J., Borradaile v. Lowe, 4 Taunt. 93 ; I'mit/hun, B., Pickin v. Gra-
ham, 1 Cromp. & M. 725, 728; Spencer, J., Griffin v. Goff, 12 john.s. 42T ; Duncan, J.,
Richter v. Selin, 8 S. & li. 425, 438. See Whitaker v. Morrison, 1 Fla. 25.

(o) Sigerson v. Mathews, 20 How. 496. AfcLcan, J. said : " This was an uncondi-
tional [)r()misc to pay the note, which no one could misunderstand, ».nd wliich the
defendant could not repudiate at any s»l)sequent period."

(/)) Anson v. Bailey, Bull. N. P. 276.

CH. Xin.] EXCUSES FOR WANT OF NOTICE. 597

up tlio bill ; (q) a request by the indorser, when called on for
payment, for delay, with a promise to pay in a few days ; (r) a
promise to the holder, that the drawer would arrange with the
drawee, so that the draft should be paid ; (s) a promise by the
drawer, that he would see the bill paid ; (t) a request by the in
dorser to the holder to sue the maker, with a promise to pay, if
the note could not be collected of the latter ; (u) a promise by
the indorser to pay the note as soon as he could, with a state-
ment that he doubted whether he should be able to do it under
eight months, but that he should have the amount by that
time ; (r) an agreement of the indorser of a note to consider tlic
demand as made in due time, and liimself liable as indorser ; (lo)
a promise to pay when it shoidd be in tlie defendant's power ; (x)
when the indorser wished for time, and agreed to give security
on the plaintiff's request therefor, and a subsequent refusal to
comply with the agreement ; (y) a promise to pay a part,(z) un-
less the drawer expressly limit his liability to the payment of
that part only ; {a) an admission by the drawer, after suit was

(9) Read v. Wilkinson, 2 Wash. C. C. 514.

(r) Hopkins v. Liswell, 12 Mass. .52. But in Freeman v. Boynton, 17 id. 483, where
the indorser complained of the hardship of his case, but promised to pay as soon as he
possibly could, or words to that effect, Parker, J. said, that " the facts reported do
not show any direct promise to pay."

(s) Byram v. Hunter, 36 Maine, 207.

(t) Hopes V. Alder, 6 East, 16, note.

(u) Lane v. Steward, 20 Maine, 98.

(v) Rogers v. Hackett, 1 Foster, 100.

(w) Duryec v. Dennison, 5 Johns. 248.

(x) Donaldson v. Means, 4 Dall. 109.

{y) Beck );. Thompson, 4 Harris & J. 531.

(z) Harvey v. Troupe, 23 Missis. 538, where the judge, at Nisi Prius, charged tlic jury
Ihat "A promise by a drawer of a bill of exchange, after its maturity, to pay the same,
or any part thereof, is a waiver by him of presentment to the acceptor, of demand of
payment, and notice of protest." Held correct. Smith, C. J. said : " A promise to pay
generally, or a promise to pay a part, or a part payment made, with a full knowledge
that he has been released from liability on the bill by the neglect of the holder, will
operate as a waiver, and bind the party who makes it for the payment of the whole
bill." In Margetson v. Aitken, 3 Car. & P. 338, there was no proof of any notice of
dishonor, but after the bill had become due, the indorser offered to pay the plaintiff a
composition of eight shillings in the pound. Lord Tenierden expressed an opinion that
this dispensed with the necessity of notice.

(a) Harvey v. Troupe, 23 Missis. 538, where tlic bill was for $ 1,309.25. The drawer
paid $ 250, promised to pay $ 900 more, but claimed a credit for some cotton shipped
by him to the acceptors. Fletcher v. Froggatt, 2 Car. & P. 569, where the drawer of a
bill for £ 200, not having received due notice of its dishonor, stated to a witness that

598 NOTES AND BILLS. [CH. XIH.

commenced, of the justice of the plaintiff's claim ; {b) a state-
ment by the indorser, during the pendency of the suit, that the
maker had promised to make some arrangement, and that he,
the indorser, would pay in the course of a few months ; (c) an
acknowledgment of the debt by the drawer, with a promise to
pay by instalments, on short t\me.{d) The question, what infiu
ence the usage of banks may have upon the matter of waiver of
demand, has already been considered, (e) as well as the indorse
ment of a joint note where the makers live so far apart that a
demand on all on the same day is impossible ; (/) or where the
indorsement is made so soon before maturity as to render a
demand on the very day of maturity impossible. (g-) In the fol-
lowing instances the promises have been held not to be suffi-
ciently clear aud distinct to show a waiver. A reply by tho
indorser, upon being asked what would be done with the note,
that it will be paid ; (A) a reply by an indorser, to the question
whether he had any defence, that he knew of no defence ; (i) a
remark of an indorser to a third party, speaking of several bills,
that he would take care of them, or see them paid, it not being
certain whether the bill in suit was referred to or not ; (j) a

he did not mean to insist upon want of notice, but was only bound to pay £70.
Held, that the plaintiff could only recover £ 70.
(6) Oglesby v. Steamboat, 10 La. Ann. 117.

(d) See Union Bank v. Grimshaw, 15 La. 321.

(e) Supra, chapter on Demand.
(/) Supra, p. 457, note v.

{g) Sujira, p. 456, note t.

{h) deamer v. Perry, 17 Pick. 332. Shaw, C. J. said: "It is a rule of law, that if
an indorser, knowing that there has been no demand and notice, and conversant with all
the circumstance.'?, will promise to pay the note, this is to be deemed a waiver. But theso
rules in regard to notice and waiver are to be held witli some strictness, in order to insure

uniformity of practice and regularity in their application In the present case, wo

are of opinion that the evidence falls short of proving a promise by tlie dcfciulant, cither

to pay tiic note or sec it paid The strongest expression used by tlie defendant

in the course of a long conversation was, the note will be paid. This is quite as con-
sistent with the hypothesis that it was a mere assertion of liis expectation that it would
be paid by the promisor, as of a promise on his own part to pay it; and from the gen-
eral tenor of his conversation, we think it cannot be inferred that it was liis intention,
knowing of his discharge, to waive his defence, and promise to pay the note, or see it
paid at ail events." Contra, Bogcrs v. Stevens, 2 T. K. 713, where the drawer said to
the plaiiititl's agent, on being informed tiiat the bill had been dishonored, " It must be
paid." Lord Keni/on directed a verdict fur tin- plaiiitilf, whicli was susti.iiiecl.

(i) Gridin r. Golf, 12 Johns. 423.

(_;■) Miller v. Hacklcy, 5 Johns. 375, Antlion, 01. Van Nrsa, J. said, as reported in

CH. XIII.] EXCUSES FOR WANT OF NOTICE. 599

statement by the drawer, on being urged by the agent of the
hohlcr to give a good bill for the amount of the first bill,
which the agent said was unfair, that it would afford him great
pleasure to do so, but that he thought it improper ; (k) an an-
swer by the indorser of a bill, in reply to a demand, stating
that he could not think of remitting till he received the
draft, and requesting the holder to return it to the prior in-
dorser, if he thought him, the defendant, unsafe ; (/) when tlie
drawer said, I am unacquainted with your laws ; if I am bound
to |)ay the bill, I will ; (m) when the indorser said to the
bailiff, who had arrested him for the debt, that it was true the
note had his name on it, but he had security, though he wished
for time to pay it.(w)

Johnson : " I think there was not the requisite evidence of snch promise. It ought to
have been made out clearly and unequivocally. The defendant only said to a third
person, when talking generally of all the bills, .... that he would take care of the bills,
or see them paid. Whether he used the one phrase or the other is left in doubt; and
if the first phrase was used, it was altogether uncertain whether he meant to be under-
stood tiiat he would resist or would pay the bills. It would be dangerous to fix an in-
dorser, without notice, and perhaps without knowledge, of the laches of the holder,
upon such loose conversation with a third person. No case has ever gone so far."

(k) Sherrod v. Rhodes, 5 Ala. 683.

(/) Borradaile v. Lowe, 4 Taunt. 93, where Mamjield, C. J. said : " I do not find
any case in which an indorser, after having been discharged by the laches of the holder,
has been held liable upon his indorsement, except where an express promise to pay the
bill has been proved. Now the letter of the defendant contains no such express prom-
ise, but in a great measure shows that the defendant was writing under a supposition
that he was liable, and that the prior indorsers would pay the bill ; for he desires that
it may be sent to Trevor & Co., who were the indorsers next in priority ; but when he
afterwards finds that the case is otherwise, and that the other indorsers would not
pay, and that he also was discharged, he refuses, as it was still open to him to do. I
cannot consider the letter as conveying an absolute promise to pay at all events,
whether Trevor & Co. did or not ; and I think, in this case, it would be too much to
fix the defendant by any such implied promise. In most of the cases where the de-
fendants have been held liable, they have either made an express promise to pay, or a
promise when they had a full knowledge, at the time they were discharged, or where
there was a real debt binding in conscience, due from them ; but none of the cases
have gone to the extent of making the defendant liable ; and to hold that he wa^, in
this instance, would be extending them beyond their fair import."

(m) Dennis v. Morricc, 3 Esp. 158.

(n) Rouse v. Redwood, 1 Esp. 1.5.5, where Lord Kenyon said: "When a person is
arrested, and at the time ignorant of his rights, or whether he is bound by law to pay
the demand or not, and under such circumstances makes any concession, and seem-
iu~ly admits the demand, such admission shall not be allowed to be given in evi-
dence to charge him." See Cuming v. French, 2 Camp. 106, note; Ma\- w. Coffin, 4
Mass. 341.

600 NOTES AND BILLS. [CH. XIIl

It lias often been said that the promise must not be condi-
tional ; (o) but the authorities in which this doctrine is held dp
cide only that a conditional promise which is unaccepted is not
binding,(7?) And we think the rule should be so stated, because
if the holder agrees to perform the conditions stipulated, and does
substantially carry them out, this would seem to show an intent
to waive objection to any laches equally with a direct uncondi-
tional promise. (7) Thus, an offer by the drawer to pay by
instalments, substantially accepted, has been held binding. (r)

The following are instances in which a conditional promise,
not accepted, has been held not binding. An offer by tlie in-
dorser to give his own note, payable in a year, refused by the
holder, because he wished an indorser to this note ; (s) an offer by
an indorser to turn out notes ; (l) an offer by an indorser to pay

(0) See Donaldson v. Means, 4 Dall. 109; Dayton, J., Sussex Bank v. Baldwin, 2
Harrison, 487, 495, 496 ; Daniel, J., Moore v. Tucker, 3 Ired. 347.

(p) In Grain v. Colwcll, 8 Johns. 384, the court said: ''The promise was condi-
tional, and not binding, except upon the terms imposed." In the cases cited infra,
the offers were rejected. Sice v. Cunningham, 1 Cowen, 397. In Barkalow v. Joiin-
son, 1 Harrison, 397, 403, Hornhloiver, C. J. said : " The offer made by the defendant
not having been accepted, matters remained in statu quo, and each party stood upon their
legal rights." In Kennon r. McRca, 7 Port. Ala. 175, 184, Collier, C. J. said : "If
conditional, the performance of the condition must be proved, before the promise or
acknowledgment becomes absolute." See Cuming v. French, 2 Camp. 106,. note.

{q) Thus it will be seen in the cases cited su/ira, that the ])romises were held bind-
ing, although conditional. But the conditions were accepted.

(r) Sec Union Bank v. Grimshaw, 15 La. 321, 339, where Mor/ihy, J. said: "In
defendant's first letter to the plaintiff', after fully acknowledging his obligation to pay
his bills, he proi)oses to renew them at four, six, eight, and ten months' sight, with in-
terest, under the most solemn assurances of payment Nine months after, he writes
two other letters in the same sense, asking the plaintiffs' indulgence on paying part,
and offering additional security. It is objected, that the.sc propositions of defendant

were rejected, and that his promises to pay were conditional The defendant's

propositions, it is true, were not formally accepted, but in consequence of his un(juali-
tied acknowledgment of the debt, and positive assurances of payment, the ])laintitf for-
bore to bring suit until the 22d of February, 1838 ; thus granting him a delay of nine
months, a greater or more ailvantageous indulgence than he had asked. It docs not
appear to us that there is any condition in the defendant's letters ; there is term of
payment, but not a condition. They are two things very distinct ; the former neces-
sarily presupposing a debt, and the latter not. ' A term,' says I'othicr, No. 230 on
Obligations, 'differs from a condition, inasmuch as a condition suspends the cm/aijc-
meiil formtd by the (u/reement ; whereas a term does not suspend the cngngenicnt, but
merely post|)one8 the execution of it.' .... Defendant's acknowledgment of the debt,
and his promise to pay it, must then be viewed either as an admission that the noliccj
were good, or as a waiver of them."

(«) Agan r. M'.Manns, II Johns. 180.

(t) Crain 1;. Colwcll, 8 Johns. 384.

CH. XIII.] EXCUSES FOR WANT OF NOTICE. 601

part in cash, and to give his note for the balance ; (ii) an offer by
the indorser to give a new note of the same maker, indorsed by
him, refused by the holder, who asked the indorser's own
note ; (v) an offer by an indorser to give his own note.(2^)

It seems to l)e well settled, that a mere promise to pay, al-
though direct and unqualified, will not be sufficient to constitute
a waiver, where it appears that demand was not made nor no-
tice given, or where there was actual laches in the acts them-
selves. The plaintiff in each case must go further, and prove
knowledge, on the part of the party promising, of the facts. (x)

(w) Barkalow v. Johnson, 1 Harrison, 397.

(v) Laporte v. Landry, 17 Mart. La. 359, 16 id. 125.

{iv) Sice V. Cunningham, 1 Cowen, 397.

(ar) Kelley v. Brown, 5 Gray, 108 ; Low v. Howard, 10 Cush. 159 ; Hopkins v. Li8-
well, 12 Mass. 52. See Freeman v. Boynton, 7 id. 483 ; Hunt v. Wadleigh, 26 Maine,
271 ; Davis v. Gowcn, 17 id. 387 ; Groton v. Dallheim, 6 Greenl. 476; Edwards r.
Tandy, 36 N. H. 540; Woodman v. Eastman, 10 id. 359; Carter v. Burley, 9 id.
558,572; Farrington v. Brown, 7 id. 271, where an indorser signed an instrument
stating that he held himself accountable. Held not binding, because not proved to
have been made with knowledge of laches. Otis v. Husscy, 3 id. 346 ; Jones v. Sav-
age, 6 Wend. 658; Sice v. Cunningham, 1 Cowen, 397 ; Trimble v. Tiiorne, 16 Johns.
152 ; Beekmau v. Connelly, cited 16 id. 1.54 ; Grain v. ColwcH, 8 id. 384 ; Sussex Bank
V. Baldwin, 2 Harrison, 487 ; U. S. Bank v. Southard, id. 473 ; Barkalow v. Johnson,
1 id. 397 ; Philips v. M'Curdy, 1 Harris & J. 187 ; Patton v. Wilmot, id. 477 ; Bank of
U. S. V. Leathers, 10 B. Mon. 64, 66 ; Moore v. CoffieM, 1 Dev. 247 ; Fothcringham
ti. Price, 1 Bay, 291 ; Spurlock v. Union Bank, 4 Humph. 336 ; Brown v. Lusk. 4 Yerg.
210; New Orleans Bank v. Harper, 12 Rob. La. 231 ; Lacostc v. Harper, 3 La. Ann.
385 ; Glenn v. Thistle, 1 Rob. La. 572 ; Harris v. Allnutt, 12 La. 465 ; Tickncr v. Rob-
erts, 1 1 id. 14. But in Walker v. Lavcrty, 6 Munf 487, the drawer acknowledged that
the debt was a just one, and said that he would pay it. The defendant's counsel asked
the court to charge the jury, that, unless the acknowledgment was made with a knowl-
edge of the facts, it was not to be received. But the court instructed the jury, that
the acknowledgment was a waiver of all notes. A judgment for the plaintift' was
affirmed. The reasons for the opinion of the court are not stated. It may be, how-
ever, that, inasmuch as it was a question of waiver of notice, they proceeded upon the
ground that ihe defendant must have known whether he had received notice or not
This case is recognized in Pate v. M'Clure, 4 Rand. Va. 164; Blesard v. Hirst, 5
Burr. 2670. See Goodall v. Dolley, 1 T. R. 712. In Hopley v. Dufresne, 15 E.ist,
275, the plaintiff had been nonsuited because the presentment had been made after bank-
ing hours, although there was evidence that, after the declaration hail been filed, the
defendant had applied for an extension of time within which to pay the bill. It did
not expressly appear whether the defendant knew, at the time, of the defect in the pre-
sentment. " Lord Ellenboroufjb , stopping the argument, said that the court thought
th.it it should have been left to the jury to say whether, under the circumstances of
the case, the defendant had notice, at the time of his application for indulgence, that
there had been no due presentation, and therefore made the rule absolute " for a new
trial. In Pickin v. Graham, 1 Cromp. & M. 725, the clerk of the defendant, a drawer,

VOL. I. 51

602 NOTES AND BILLS. [CH. XTH.

It has been sometimes said that a waiver cannot be inferred. (y)
But if by this is meant that direct knowledge must be proved,
we thmk it incorrect. Indeed, there does not appear to be any
good reason why knowledge may not be proved in the same
manner and by the same evidence in this matter as in any other.
A jury will be justified in inferring knowledge from a variety of
circumstances, such as the situation and connection of the par-
ties, the words and acts of the indorser, the time which has
elapsed between the maturity of the note or bill and the prom-
ise, and the like. (2) It would seem that, where the question

called upon an indorser the day after maturity ; but before it could be known that the
bill had been dishonored, and after it had been intimated that the acceptor would not or
could not probably pay, the clerk said : " If that be so, I suppose there is no alternative
but for me to pay the bill ; if you will bring it to Sheffield next Tuesday, I will pay it."
Held not binding, the defendant having received no notice till several days after matn-
rit}-. The rule, as stated in the text, however, is inconsistent with the language used in
some of tiie cases, where it is stated that a promise to pay will dispense with proof of
presentment and notice, and throw on the defendant the doulile burden of proving laches
and ignorance. This point is treated infra, p. 624. So in Schmidt v. Kadcliffe, 4
Strob. 296, where the indorser promised to pay eight months after maturity, the maker
and indorser residing in the same place, and having frequent business transactions with
each other, the court seem to have considered the promise sufficient.

(y) See Laportc v. Landry, 16 Mart. La. 125, 17 id. 359.

(-) In Martin v. Winslow, 2 Ma.son, 241 , where there had been a delay of seven months
to demand payment of the note which was payable on demand, which is an unreason-
able delay under ordinary circumstances, Sloni, J. charged the jury as follows : •' A
promise to pay, with a full knowledge of all the facts, is binding upon the indorser,
although he might otherwise be discharged. But if he promise in ignorance of mate-
rial facts aiTecting his rights, it is not a waiver of those rights. The question, then, is,
whether the indorser in this case had sucii knowledge. It may be inferred from the
connection between the parties, their near relationship, and the deep interest which the
defendant had in this particular case to ascertain, after the death of the maker, his own
responsibility as indorser. It may also be inferred fiom the language used by iiim on
this occasion. He did not object to the delay, though he knew the length of timo
wliich had elapsed since the note was given. As no objection of this sort was made,
it leads to the presumption, cither that the indorser understood originally that the note
was to lie uni)aid for a period at least as long, or that, under all tlic circumstances, he
did not deem it an unreasonable delay. He had no ground to prcsuTue that any
demand of ])aymctit was made of the maker in his lifetime, and the fact that the first
known demand was on the administrators, and the first notice given to him after that de-
mand, would strongly lead him to the conclusion that tliere ha<l been no prior demand.
And in fact no prior demand was made. But as these are mere [)rcsuni])ti(>ns of fact
arising from the circumstances, the jury will give tliem wliat weight they think theiii en-
titled to." Sec the rem;irks of fJnstis, J., cited infra, p. 608, note /), where an indo'-ser
of ft bill, after having had suflicient ojiportunity to ascertain the circiunstances of the
presentment, protest, and notice, promised a sulisequent indorser who had taken up the
bill to repay him, afterwards received the bill from this indorser, proved it in hiti cwn

CH. XIII.] EXCUSES FOR WANT OF NOTICE. 603

was one of waiver of notice alone, an iinc(|uivocal promise on
the part of the indorser or drawer would ordinarily be, at least,
prima facie sufficient ; because the party must know whether he
had received notice or not ; and a promise to pay when no notice
at all has been given, would seem to show an intent to waive objec-
tion to liability on this account. There are authorities in which
this view seems to be adopted, («) but it is inconsistent with oth-

namc against the estate of the drawer who had failed, received a dividend upon it, and
retained the bill. Held that he was liable on this promise, unless he could prove it to
luive been made under a mistake of the facts. Martin v. Ingersoll, 8 Pick. 1. In Hop-
ley V. Dufresne, 15 East, 275, the facts in which are cited supra, p. 601, note x, the
grounds on which it was contended that the indorser knew that the presentment had
been defective appear to have been, that the defendant, an indorser of a bill, applied
for an extension after the declaration had been filed, which alleged due presentment.
Lord Ellenborough appears to have considered these circumstances so fiir sufficient as to
authorize the question of knowledge to be submitted to the jury. In Patterson v.
Bccher, 6 J. B. Moore, 319, the defendant, a drawer of a bill, appears to have made a
promise to the plaintiff's attorney ; and subsequently, on the same day, the defendant's
attorney wrote a letter to the attorney of the plaintiff, stating that he had waited on the
defendant and advised with him respecting the demand ; and that, in behalf of the
defendant, he offered to give a warrant of attorney for the amount, payable in threo
months, the earliest period that he could, with any degree of certainty, fix for the pay-
ment of the same. Although the facts do not show whether there was any presentment
or protest, yet the court seem to have decided the case upon the ground that the above
facts constituted a waiver of presentment, and not merely presumptive evidence. See
Schmidt V. Radcliffe, 4 Strob. 296.

(a) See the remarks of Washington, J. cited infra, p. 605, note g. See Walker
V. Laverty, 6 Munf. 4S7, supra, p. 601, note x; Pate v. M'Clure, 4 Rand. Va. 164;
Rogers v. Hackett, 1 Foster, 100, infra, p. 605, note e; Wilkes v. Jacks, Peake, 202 ;
Nash V.Harrington, 1 Aikens, 39, 2 id. 9 ; Ladd v. Kenney, 2 N. H. 340, where the
presentment was in due season. Richardson, C. J. said : " In the present case, the de-
fendant, when informed, more than four weeks after the note became due, that it had
not been paid, made no objection that he had not been seasonably notified, but prom-
ised to see the maker, and have the note paid before he returned home. We are of
opinion that the jury were rightly directed to consider such a promise as a waiver
of any objection to the notice, and that there must be a judgment on the verdict.
See the remarks of Weston, C. J., cited infra, p. 604, note d; of Shaw, C. J., infra,
p. 606, note k. In the facts as reported there does not appear to have been any
evidence of actual knowledge that no notice had been given. In Fitch v. Redding,
4 Sandf. 130, where the defence was want of proof of notice, the drawer of the check
apologized for its not being paid, and gave as a reason, that it was not convenient at
the time, but promised to pay it in a few days. Diter, J. said : " As the defendant had
no funds in the bank upon which the check was drawn, he was not entitled to notice ;
and had he been notified, his subsequent promise to pay the check would have been a
waiver of the defence." There does not appear to have been any evidence of knowl-
edge of want of notice. In Barkalow v. Johnson, 1 Harrison, 397, 402, Hornhloiver,
C. J., after referring to the absence of fiicts showing knowledge, said that the indorser'
" knew indeed whether he had or had not received a notice of demand and non-pay

604

NOTES AND BILLS.

[cH. xm.

ers.(6) In the following instances, the finding of the jury, that
the defendant had knowledge of the facts, was held to be justi-
fied ; where the agent of the plaintiff called on the defendant,
and informed him that he had neglected to take measures for
the collection of the note, and asked him what he should do ; (c)
where the drawer of a draft, on being informed of its non-
payment, took the draft to obtain payment, and afterwards
returned it, saying that he was unable to procure payment ; (d)

ment." In Debuys v. Mollere, 15 Mart. La. 318, Mathews, J. said : " This agreement
is equivalent to a promise to pay, and it only remains to ascertain the legal effect of
the promise. The indorser must have known whether he was duly notified of the pro-
test. If he were not, by promising to pay he waived the advantage which such negli-
gence would otherwise have given ; if he did not receive regular notice, he is liable
under his subsequent promise." See Nash v. Harrington, 1 Aikens, 39, 2 id. 9 ; Loose
V. Loose, 36 Penn. State, 538.

(b) Trimble v. Thorne, 1 6 Johns. 152. Spencer, C. J. said : " The court never intended,
in the various cases which have come before tliem on this point, to leave it to be inferred,
from the mere fact of the subsequent promise, that regular notice had been given, or
was intended to be waived. In the case of Bcekman v. Connelly, recently before us,
we held, that the proof of a promise to pay, merely, without its appearing also that the
party knew he had not received regular notice, did not dispense with the proof of regu-
lar notice. An indorser may believe that due notice has been given, inasmuch as
notices need not be personally served, and under an ignorance of the fact, consider
himself liable when he is not. It is no hardship on the holder of a bill or note, to re-
quire of him proof of regular notice ; but if a party, with a full knowledge of all the
facts, voluntarily promises to pay, and waives his right to notice, he will be held to his
promise." This case has been overruled by another in the same jurisdi('tion, and much
doubted in others, as will be seen subsequently, but on another point. So Duyton, J.,
in Sussex Bank i'. Baldwin, 2 Harrison, 487, 496, said, that "an admission that notice
of the protest had been received through tlie bank is nothing. It docs not appear
ivhen it was received." Hicks v. Duke of Beaufort, 4 Bing. N. C. 229 ; New Orleans
Bank v. Harper, 12 Hob. La. 231 ; Lacoste v. Harper, 3 La. Ann. 385 ; Glenn v. This-
tle, 1 Rob. La. 572; Harris v. Allnutt, 12 La. 465 ; Laporte v. Landry, 17 Mart. La.
359, 16 id. 125.

{d) Cram v. Sherburne, 14 Maine, 48. Weston, C. J. said : "It is insisted that there
is no evidence that the defendant knew that the plaintiff had been guilty of laches, and
that therefore the judge was not justified in leaving it to the jury to find such knowl-
edge. We think otherwise. The defendant knew that no notice had l)ecn given to
him that the note was not paid, until a month after it was drawn, although it was pay-
able in three days. And his conduct is evidence that he knew the order had not been
demanded at its maturity, for he himself undertook at that time to make the demand
for the plaintiff of the drawer, who declined to pay it. He knew this demand was
unreasonable, notwithstanding which he expressly promised the plaintiff to ]>ay him
the amount of the order. The demand made by the defendant was either made by
him as agent for the plaintiff, the holder, or it is evidence that he undertook to do it
himself, waiving his right to n'(iuire that it should !)e done by the plaintiff". And in

CH. XIII.] EXCUSES FOR WANT OF NOTICE. 605

where the holder testified that the indorscr knew, by a conversa-
tion held between them, tliat no demand had been made ; (e) an
acknowledgment of liability by the first indorser, coupled with
an agreement to pay one fourth of the note, subsequent to a suit
against him by the holders, and judgment obtained after con tes-
tation. (/)

In the following instances, the evidence was held not sufficient
to show knowledge. A. statement by the indorser that he knew
that the maker had not paid, and was not to pay the note ; that it
was the concern of himself alone, and that the maker had noth-
ing to do with it; (g-) knowledge that a note had not been paid,(/«)
because a knowledge of non-payment is not a knowledge of non-
presentment ; a statement by an indorser, that he had no depend-

either case it is evidence, by necessary implication, of a waiver of notice of non-pay
ment from the phiintifF."

(e) Rojjers v. Hackett, I Foster, 100. This was held a waiver of demand and no-
tice ; nothinii appears to be said as to the knowledge, or want of knowledge, of the
notice not being given.

(/) Keeler v. Bartine, 12 Wend. 110. In this case judgment had been obtained
against the last indorser, and the maker and indorser had agreed that each should pay
one fourth of the judgment, and neither party should look to the other for any part so
agreed to be paid by him. The second indorser, nevertheless, after payment of his
fourth part, sued the first indorser for the amount, and recovered, because there was
no consideration for the agreement. It was in this last suit that the defendant was
presumed, from the facts, to have had knowledge of laches, and demand and notice, if
any existed.

(g) Thornton v. Wynn, 12 Wheat. 183, 188. Waahingion, J. said : "These decla-
rations amounted to an unequivocal admission of the original liability of the defendant
to pay tlie note, and nothing more. It does not necessarily admit the right of the
holder to resort to him on the note, and that he had received no damage from the want
of notice, unless the jury, to whom the conclusion of the fiict from the evidence ought
to have been submitted, were satisfied that the defendant was also apprised of the
laches of the holder, in not making a regular demand of payment of the note, by which
he was discharged from his responsibility to pay it The knowledge of this fact formed
an indispensable part of the plaintiff's case, since without it, it cannot fairly be inferred
that the defendant intended to admit the right of the plaintiff" to resort to him, if, in
point of fact, he had been guilty of such laclies as would discharge him in point of
law. For anything that appeared to the court below, from the evidence stated in the
bill of exceptions, the admissions of the defendant may have been made ujton the pre-
sumption that the holder had done all that the law required of him, in order to charge
the indorser. That due notice was not given to the defendant, he could not fail to
know ; but that a regular demand of the maker of the note could not be inferred by
the court from the admissions of the defendant."

(A) Low V. Howard, 11 Cush. 268, where a charge to a jury, that a promise to pay,
with full knowledge that the note had not been paid nor notice given, was a waiver of
dciinind anvl notice, was held incorrect.
51*

606

NOTES AXD BILLS.

[CH. xm.

ence on the maker to pay the note, that he understood that the
note was lying over unpaid, and he expected it would have been
Bent on for collection before ; (i) the fact that the drawer has in-
cluded the demand in an account for his creditors, in an applica-
tion for his discharge in insolvency. (7)

Although it is clear that a promise to pay, with knowledge that
no demand has been made nor notice given, is sufficient to con-
stitute a waiver ; yet it is still open to the defendant to prove that,
although he knew these facts, the promise was made in ignorance
of other material circumstances, which, if he had known, would
have prevented him from making the promise. (/<;) Thus, where
the holder gave up the indorsed note to another party, receiving
his in return, under circumstances showing that the latter note
was taken in payment of the former, or under circumstances
which would discharge the indorser, and subsequently took back
the former, the latter being unpaid, a promise by the indorser to
pay, in ignorance of these circumstances, was held not bind-
ing. (/)

(j) U. S. Bank v. Southard, 2 Harrison, 473. Ncviiis, J. said : " Suppose he did not
expect that the maker would pay the note, this would not absolve the holders from
their obligation to make the demand ; and suppose it to be true that he was informed
that the note was laying over unpaid, this was no evidence to him that it had been
duly demanded of the maker; and his expectation that it would before have been sent
on for collection does not prove that he knew that he was discharged by tlie laches of
the holder."

{j) Jones V. Savage, 6 Wend. 658.

(k) Low V. Howard, 10 Cush. 159, where the judge at Nisi Prius charged the jury
that, thougli it was generally true that a promise by an indorser to pay the note, when
there had been no demand, and no notice of its dishonor, would be held to be a waiver
thereof, if these facts were known to him ; yet the rule would not a])ply to a case where
other material circumstances existed, the knowledge of which was essential to a full
understanding of his rights and obligations. S/iaw, C. J. said : " We think the direc-
tions were right. The legal foundation of the doctrine of waiver is, that a i)arty know-
ing his rights voluntarily consents to forego them Knowledge of all the nnitcrial

facts on which those rights depend is essential to a valid waiver. The legal liability of
an indorser is conditional on demand and notice. But the condition is one made for
his benefit ; and therefore he may waive it. If he is satisfied that demand and notice
would be of no benefit to him, it is quite natural that he should waive them. In gen-
eral, if he knows there has been no demand and notice, and yet promises to pay, it is
strong evidence of waiver. But if there be other facts which might tend to intiuenco
his judgment, known to the holder, but not to tiic indorser, then his promise to pay is
not conclusive evidence. Here, then, were facts alleged to be material, and if true, were
80, and they were left to the jury with proper directions, who found a verdict for the
defendant, and therefore afiirmed the truth of the facts."

(/j Low V. Howard, 10 C^iisli. 159. The facts in this case were as follows. The hold<ir

CH. XIII.] EXCUSES FOR WANT OF XOIICE. 607

It has been held by some autliorities, tliat a promise to pay by
the iiidorser, in ignorance of the fact that the circumstances
known to him would discharge him in law, was not binding ; or,
in other words, that a promise to pay in ignorance of law was of
no effect. (w) But this has been repudiated, (w) and with reason,

of the first note went to tlic parties in whose employ the maker was, to endeavor to
obtain payment out of what they might be owing the maker. Tiiey took tliis note and
gave their own for the same amount, payable at the same time, wliich the liolder
received as a receipt for the first. They owed the maker at the time, showed him the
note, and with his consent agreed fo charge it to him. The makers of the second note
became insolvent, and tliere had been no settlement between them and the maker of
the first. The liolder then took back from the makers the first note, giving up the sec-
ond. Before the time of the last transfer, one of the makers, who had obtained posses-
sion of the second note, had erased his name therefrom, but put it upon the note again,
at the suggestion of the holder, who made a verbal agreement that he should never be
called on for payment.

(m) Warder v. Tucker, 7 Mass. 449, where the court said: "And although the
defendant, when he first received notice from the plaintiffs of the protest of the bill,
considered himself as liable by law to pay the plaintiffs the amount of it, yet his igno-
rance of the law shall not bind him to fulfil an engagement made through mistake
of the law." In Freeman v. Boynton, 7 Mass. 483, Parker, J. said : "Nor will any
supposed acknowledgment of the indorser, that he was liable to pay the note, avail the
plaintiffs in the present case. The facts reported do not show any direct promise to
pay, and even if they did, it is well settled that a promise under such circumstances as
show an ignorance that the party was legally discharged is without consideration and
void." Fleming v. M'Clure, 1 Brev. 428. See Spurlock v. Union Bank, 4 Humph.
336. In Miller v. Hackley, Anthon, 68, Thompson, J. said : " That a promise may
amount to a waiver in a case like the present, enough must appear to render it justly
presumable that the defendant at the time knew the fact of the want of notice, and
also knew his legal rights." See Chatfield v. Paxton, 2 East, 471, note a.

(7i) Ladd V. Kenney, 2 N. H. 340. Cowen, J,, in Tebbetts i;. Dowd, 23 Wend. 379,
386, said : " This notion has long since been exploded." In Richter v. Sclin, 8 S. & R.
425, 438, Duncan, J. said : " His ignorance of the law would not render the promise
void. For if, with knowledge of the fact of demand not having been made, he makes
a promise under the supposition that he will be still liable at law, it will be valid." So
in Kennon v. M'Rea, 7 Port. Ala. 175, 184, Collier, C. J. said: "And it will make no
difference that a promise or acknowledgment was made under a misapprehension of
the law ; for every man must be taken to know the law ; otherwise, a premium is held
out to ignorance, and there is no telling to what extent this excuse might be carried."
Carr, J., Pate v. M'Clure, 4 Rand. Va. 164, 170. See Schmidt i; Radclittb, 4 Strob. 296 ;
Bilbie v. Lumley, 2 East, 469, where "Lord Ellenhovowjh, C. J. asked the plaintiff's
counsel wliethcr he could state any case where, if a party paid money to another vol-
untarily, with a full knowledge of all the facts of the case, he could recover it back
again on account of his ignorance of the law. No answer being given, his lordship
continued. The case of Chatfield v. Paxton is the only one I ever heard of, where
Lord Kcnyon, at Nisi Prius, intimated something of that sort. But when it was after-
wards brought before this court on a motion for a new trial, there were some other cir-
cumstances of fiict relied on, and it was so doubtful, at last, on what precise ground
the case turned, that it was not reported." Stevens v. Lynch, 12 East, 38, where the

603 NOTES AXD BILLS. [CH. Xm

for there are no good grounds for ■ maintaining tliat the case of
waiver is an exception to the sound maxim, that ignorance of law
is an excuse for no one.

The subject of part payment after maturity has been con-
siderably discussed with respect to the question of waiver,
and the cases are not entirely in unison. It would seem to
be settled, that a mere part payment, with knowledge, is a
waiver; (o) but some authorities would appear to hold tliat part
payment alone is sufficient evidence of a waiver, without proof
of knowledge, (/)) which doctrine is inconsistent with other au-

court said, on Chatficld v. Paxton being referred to : " Tlie court considered those cases
to have proceeded on the mistake of tlie person paying the money, under an ignorance
or misconception of the facts of the case ; but here the defendant had made the prom-
ise with a full knowledge of the circumstances, three months after the bill had been
dishonored, and could not now defend himself upon the ground of his ignorance of tlic
law when he made the promise."

(o) Shcrer v. Easton Bank, 33 Penn. State, 134, where the notice was delivered to
the indorser at the proper time, but it stated the demand to have been made two days
before maturity. Tlie demand was regular. The note was for $ 1,600, of which $ 500
had been paid. Strong, J. said : " We come, then, to the inquiry whether tiie court
erred in instructing the jury that ' there was evidence of what dis])ensed with notice to
the indorser,' and ' that, if they believed the $ ."JOO was a payment by the defendant, it
dispensed witli the necessity of proving detnand and notice to him, and that it was an
acknowledgment of the liability created by the indorsement.' The defendant com-
plains of this for two reasons : first, that it was an invasion of the province of the jury.
.... That a subsequent promise to pay the note by an indorser, who has full knowl-
edge of all the facts, amounts to a complete waiver of the want of due notice, is well

settled, and settled as a matter of fact. So does a part payment If, then, payment

of part of a note is, in law, a waiver of notice of dishonor, and not mere evidence of
notice, the court in this case withdrew nothing from the jury upon whicii they had a
right to pa.ss. The legal effect of a given state of facts is always for the court. It was
submitted to the jury to find whether the defendant made the payment. If lie did, the
fact that lie made it with full knowledge of the circumstances was proved, and was not
controverted. All the rest was a legal conclusion." Ilarvcy v. Troupe, 23 Missis. .538.

{p) In Read v. Wilkinson, 2 Wash. C. C. 514, Washhujton, J. charged the jury, that
" The want of funds in the hands of the drawee, the drawer's payment of jtart of it,
and his subsequent acknowledgment of the debt, and promise to send fuiuls to take it
up, arc either of them sufficient to dispense with notice and protest." In Levy v.
Peters, 9 S. & 11. 125, Tilcjhnan, C. J. said : " Whenever the drawer acknowledges himself
to be liable to payment, the necessity of proving a demand of the drawee, and his refusal
to pay, and notice to the drawer, is dispensed with. Because such acknowledgment
carries with it internal evidence that tiic drawer knew that due diligence had been
vrneiX by the holder, or even if it liad not, that still the drawer confessed that he was
under an obligation to pay. And it is immaterial whether there be ])roof of an ex-
press promise to pay, or of other circumstances from wiiich it can be inferred that the
drawer acknowledged himself liable ; and I take it that ]»aytnent of jiart is such a
circumstance. And there is good reason for it. For why should part be paid unless

CH. XIII.] EXCUSES FOR WANT OF NOTICE. 609

tliorities.(</) Part payment may certainly be explained ; as, for
instance, by the fact that tiie indorser paid it witli money which
he liad received from the maker for that express purpose, (r)

5. By whom the Waiver is made.

In order to make a waiver effectual, it should be the act of the
indorser himself, or of his duly authorized agent ; because no
person can waive another's rights. (s) Tiius, it is no excuse for
a failure to make a proper demand, as regards an indorser, that
the maker told the holder, a few days before maturity, that it

the payer acknowledged the obligation of paying the whole?" Curtiss w. Martin,
20 111. 557, where the judge, at Nisi Prius, charged the jury that the payment hy the
drawer, if proved, of any part of the bills after they fell due, was a waiver of present-
ment to the drawee for acceptance and payment, and notice of non-acceptance and
non-payment. Held correct. See Whitaker v. Morrison, 1 Fla 25, 34, where Haivkuis,
J. said : " The part payment of a note, not explained or qualified by any accompany-
ing circumstances, will be held to be sufficient evidence of waiver of notice." In Wil-
liams V. Robinson, 13 La. 419, the drawer of a bill paid a part, and subsequently, on
being asked for the balance, said it was a third of exchange, and if he had examined
it he would not have paid what he did on it, adding, that at the time the bill was
given it was agreed that it should be paid in the place wliere it was drawn. Eustls, J.
said : "From these facts it would lie left to a jury to infer whether the partial payment
was or not made with a knowledge on the part of the drawer of the want of de-
mand, protest, and notice. The knowledge may be inferred from the circumstances
attending the payment. The reason for the drawer refusing to pay the balance due on
the bill is placed on grounds entirely independent of his knowledge of the .state of facts

which would exonerate him We consider the law as settled, that a subsequent

promise to pay a bill or note, or a part payment thereof, must be made with full
knowledge of the facts of a want of due diligence on the part of the holder, but that
affirmative proof of the knowledge is not required. It may be inferred from the
promise or payment under the attending circumstances."

(q) Spurlock v. Union Bank, 4 Humph 336, where there was a part payment and
an acknowledgment of liability. The court seem to have proceeded upon the ground
partly, that knowledge was not proved, and partly, that the indorser was ignorant of
the law. See the remarks of Eustis, J., cited supra, note p.

(r) Whitaker v. Morrison, 1 Fla. 25. IJmvkins, J. said : " There was no evidence
showing a promise of payment on the part of the indorser, and the bare fact of his de-
livering the money is not enough. As to this the indorser seems to have acted as the
mere agent of the maker, and it would be at variance with all ideas of justice, ex-
plained as the occurrence is, that the indorser, acting in the capacity of an agent sim-
ply, should be rendered subject to legal liabilities, by the virtual act of his principal."
The indorser who has paid the whole of a note in ignorance of laches, may recover the
amount of the party to whom he paid it. Garland v. Salem Bank, 9 Mass. 408.

{s) In May v. Boisseau, 8 Leigh, 164, 180, Tucker, P. said : " What is the principle
on which notice is waived 1 It is, that the consequences of neglect to give notice may
be waived by the person entitled to take advantage of them. The act, then, which is
to operate a waiver must be the act of the indorser himself. It would be a solecism
» permit the act of another to waive his riglit of insisting upon notice."

Vol. I.— 2

610 NOTES AND BILLS. [CH. XIH

was no use to present the note, because it could not be paid.(^)
Such evidence, in fact, is inadmissible. (%) So also a promise to
pay made by one partner, after dissolution, although binding
upon him, has been held not to bind the other partners. (i?) An
offer of composition by the acceptor, not acceded to, with a dec-
laration in the presence of the drawer and holder, that he, the
acceptor, had not provided for them, and should not do so, has
been held to be no waiver of demand and notice. (w) AYhere
there is a written waiver of notice on the back of the note, im-
mediately followed by two indorsements, one under the other, the
waiver is the several act of the first indorser, and not that of the
second. (.f) Notice may be given to one joint indorser, and the
other may have waived it, and the effect of the waiver by the
latter is an acknowledgment of the joint liability. (//)

6. To whom the Waiver is made.

With regard to the person to whom the waiver should be made,
it would seem to be settled, that a promise to a third party, uncon-
nected with and uninterested in the note or bill, is no evidence
of waiver ; [z) but a promise to the holder himself has been held
to enure to the benefit of a party who subsequently takes up the
paper,(a) and an agreement between the maker and the indorser,

[t) Lee Bank v. Spencer, 6 Met. 308.

(«) Pierce v. Whitney, 29 Maine, 188.

(v) Hart V. Long, 1 Rob. La. 83. See Bank of Vergennes v. Cameron, 7 Barb. 143;
and supra, pp. 144 - 146.

{w) Ex parte Bignold, 2 Mont. & A. 633.

(x) Central Bank v. Davis, 19 Pick. 373.

(y) Shcrcr v. Easton Bank, 33 Penn. State, 134.

(z) Olendorfr. Svvartz, 5 Calif. 480; Jervey j;. Wilbur, 1 Bailey, 4.53. Sec Allwood
r. Hascldon, 2 id. 457 ; Miller v. Hackley, 5 Johns. 375, Antlion, 91, su/na, p. 599, notey.

(a) Kennon i'. M'Rea, 7 Port. Ala. 175 ; Rogers v. Hackctt, 1 Foster, 100, where
Gilchrist, C.J. said: "There is notliing in the case (Roberts v. Peake, 1 Burr. 323)
cited, which supports the doctrine that a promise to pay a note made by the indorser
to the holder could not be given in evidence by a subsequent indorsee, in a suit against
the first indorser. No reason occurs to u? why the i)laintift' should not avail himself
of the evidence. An indorser may waive such a defence, or not, as he sees (it. After
having waived it, and surrendered it, upon what jirinciple can he reclaim it ? Ho
cannot rely upon this defence as existing, or as non-existing, as his caprice or his in-
terest may dictate. There is no need of considering the (jucstion whether it could bo
transferred by indorsement to the plaintift', for negotiability or non-negotiability cannot
be predicated of it. All that can be said of the matter is, that the party has waived
his defence, and therefore cannot avail himself of it." Sec also Potter v. Rayworth, 13
East, 417, infra, p. 614, note /.

CH. XIII.] EXCUSES FOR WANT OF NOTICE. 611

whereby the latter is to take up the note, will enure to the bene-
fit of an indorsee in an action against the indorser,(6) as will an
engagement between the maker and indorser to extend the time
of payment. (c) And wherever the indorser takes security under
such circumstances as will amount to a waiver, this must be con-
sidered, we think, as a holding out to whatever person may own
the bill, that he is the proper party to pay it, and the one prima-
rily liable. (^)

There are a few authorities in which the doctrine that a prom-
ise to pay, after maturity, with full knowledge of laches, is held
not binding because without consideration. (e) Although this is
not now law, yet we think that the objection has certainly some
weight. (/) As soon as the holder neglects to take the steps re-
quired by law to fix the drawer or indorser, from that moment his
liability is at an end. The contract which he entered into, and by
which he agreed to be bound, is broken, and he is discharged.
How then can he be made liable, except by a new and indepen-

(6) Marshall v. Mitchell, 35 Maine, 221. But in Baker v. Birch, 3 Camp. 107, where
the acceptor, a few days before maturity, told the drawer that he should be unable to
pay the bill, requested the drawer to take it up, and gave him part of the amount,
and the drawer received the money, and promised to take it up, it was held that the
latter might set up in defence a want of due presentment and notice ; but that the
money received was money had and received to the plaintiff's use.

(d) In Curtiss i\ Martin, 20 111 557, supra, p. 609, the party who took the security
was held entitled to avail himself thereof, as a waiver as to him.

(e) Lawrence v. Ralston, 3 Bibb, 102. See May v. Coffin, 4 Mass. 341 ; Chase,
C. J., Beck V. Thompson, 4 Harris & J. 531 ; Donelly v. Howie, Hayes & J. 436,
where Joy, C. B. said : " Either the judges have been inaccurate in the language they
have used, or they have been inaccurately reported, or there has been a fluctuation of

opinion upon this subject I confess I cannot conceive what is the meaning to be

attributed to the word ' waiver,' when used in a case like the present, where the defend-
ant has been absolutely discharged by the neglect of the plaintiff. He may waive the
communication of a fact ; but I do not understand how he can waive the existence of
the fact. The law requires that the bill should be presented to the acceptor, when it
becomes due, even though the acceptor be a bankrupt ; and in my opinion it would be
very prejudicial to the mercantile interests of the country, were we to fritter away the
known rules of law, by establishing this new-fangled doctrine of waiver. The ten-
dency of the modern decisions of courts of justice is to avoid new distinctions, or
extending those which have been already introduced ; and to decide cases according to
the old, well-known rules of the law. Nor is there any pretence for saying that there
is a moral obligation on the defendant, (an indorser,) to pay this bill, whereby the prom-
ise might be supported ; for the plaintiff, by his own neglect, has discharged every per-
son, except the acceptor of the bill."

(/) Mr. Justice Story, Prom. Notes, § 275, has expressed an opinion to the same
•ffec^

812

NOTES AND BILLS.

[cH. xm.

dent contract, which requires, hke all other contracts, a consider-
ation to support it ? The case is not analogous to those where a
new promise is relied upon to remove a statutory bar to the rem-
edy, and in which the debt itself, in theory, still exists, while all
means of enforcing it are removed ; because there is no debt
either in theory or in fact. It is not unlikely that the cases by
which the doctrine was first established arose with reference to
the liability of drawers of bills, where the drawer received the
money originally, and was, in fact, morally bound to pay ; and
the cases result from the doctrine, now repudiated, that a moral
consideration is sufficient to support an express promise. (g-)
There is another objection which has been urged, but which rests
upon far less secure foundation, that the promise, if by parol,
is witliin the statute of frauds, being a promise to pay the debt
of a third party, which is required to be in writhig, and is con-
sequently void.(//) This objection has, however, been held well
taken, where the action was brought on the promise, and not on
the note.(t)

It has been said that the doctrine applicable to waiver of
notice of the dishonor of bills of exchange does not apply to
promissory notes. But the distinction is not clearly pointed
out.(;)

7. Presumptive Evidence in Reference to Waiver.

In our discussion of the subject of waiver, we have endeav-
ored to confine our remarks to instances where it appears, either
expressly or by implication, that no demand had been made or
notice given, or where there were express laches. The same
facts and circumstances are now to be considered in another

(g) In Hopes v. Alder, 6 East, 16, note, the counsel for the plaintiff urped that "the
subsequent promise to pay, for which there was certainly an eciuitablc consideration,
put an end to any doubt. Gibbs, contra, admitted that this last objection was decisive."
Cowen, J., in Tel)bctts v. Dowd, 23 Wend. .379, 382, after citin<^ this remark, said :
"In short, the force of the promise stands on what is often called in the hooks, by a
latitudinary mode of expression, the consideration of moral obligation ; a phrase which
can never be judicially understood in its broad ethical sense, as it sometimes has been,
without subverting the legal notion of a consideration. It means no more than a legal
liability suspended or barred in some technical way short of substantial satisfaction."

(h) This objection was expressly overruled in U. S. Bank v. Southard, 2 Harrison,
473, wliicli was an action on the note itself.

(»■) Peabody r. Harvey, 4 Conn. 119.

(j) Thompson, C- J., in Agan v. M'Manus, 11 Johns. 180.

CH. XIII.] EXCUSES FOR WANT OF NOTICE. 613

view, and in a totally different connection. There is a very
numerons class of cases on the subject, how far a promise to pay,
or other circumstances, such as the acts or words of the drawer
and indorscr, go to prove that they have received notice, or are
evidence that a proper demand has been made and notice given.
In many of the books on the subject, and in frequent instances
in the authorities, the distinction between the two classes of
cases is ignored, and cases and principles applicable to the
one are cited as authorities, or applied to the facts, in the
other. So that the law is in a state of much confusion and un-
certainty. (A;) It is also to be observed, that, from the facts as
reported, there is frequently much uncertainty whether there
were laches or not, and it is equally uncertain upon what prin-
ciples the cases were decided. We will first consider the rules
of law laid down by the English authorities with respect to
presumptive evidence in questions of this kind ; and we may
remark, that, although the English law seems, generally, to be
more strict in its requirements of proof of demand and notice
than the American law, yet, on the point of presumptive evi-
dence, the former would appear to be much more lax than the
latter, and in some instances, we think, unjustifiably so.

Tliere are several cases which hold that a mere acknowledg-

(k) The ablest discussion to be found in the reports, and the only one where the
principles and cases have been thoroughly treated, is the masterly opinion of Cowen,
J., in Tebbetts v. Dowd, 23 Wend. 379, which will well repay perusal. The learned
judge said, on the point now under consideration, p. 387 : " In speaking of this
head, I shall hereafter, for the sake of brevity, call it ' waiver,' and I must again
repeat, that it is entirely distinct from, and founded on, a state of fiicts opposed to
another ground, on which I think the judgment of the court below still more clearly
sustainable than that of waiver. I mean the ground that, where no laches appear in
proof, the promise, or other equivocal act of the drawer or indorser, shall be received as
prima facie evidence that there were no laches ; that presentment, protest, notice, &c.
were in fact made or given, the promise, &c. thus coming in place of the ordinary
direct proof of those facts. It is necessary to adhere with great strictness to the dis-
tinction, inasmuch as all the treatises I have seen on bills of exchange or notes con-
found waiver with the opposite (jrou))d. They state both these grounds together, as if
they belonged to the same head, often citing cases in respect to one ground which
belonged to the other; thus introducing a degree of confusion into this branch of the
law to which the decisions give no countenance whatever ; nay, to which they stand
directly opposed. And this brings me to the second general head, — presumptive evi-
dence." As to the latter remark concerning the authorities, we shall see that the
learned judge is incorrect, because we find the courts, even in the same jurisdiction,
applying the principles applicable to presumptive evidence at times, and again decid-
?ng in a way which, by no method, can be reconciled with them.

VOL. I. 52

61-1 NOTES AND BILLS. [CH. Xm.

meiit ol liability, or a promise to pay, after maturity, by a
dra^ver or indorser, is sufficient -evidence by which a jury may
infer protest, demand, or notice, (/) and also a presentment at the

(/) Wood V. Brown, 1 Stark. 217, where the phiintifF, instead of proving notice, &c.,
gave in evidence a letter of the defendant, a drawer and indorser, stating that the bill
would be paid before the next term. Held sufficient. Taylor v. Jones, 2 Camp. 105,
where the indorser of a note two years after maturity promised to pay, but asked for
further time. Held sufficient evidence of presentment and notice. Gibbon v. Coggon,
id. 188, where the drawer of a foreign bill, on demand being made, said that his affairs
were much deranged, but that he would be glad to pay as soon as his accounts with his
agent were cleared. Held evidence of protest and notice. Lord Ellenhorough said :
" By the promise to pay, he admits his liability ; he admits the existence of everything
which is necessary to render him liable. When called upon for payment of the bill,
he ought to have objected that there was no protest. Instead of that, he promises to
pay it. I must, therefore, presume that he had due notice, and that a protest was regu-
larly drawn up by a notary." Greenway v. Hindley, 4 Camp. 52, where the evidence
of presentment, protest, and notice of a foreign bill was a statement by one of the
drawers that the bill was regular, that it was due from him and liis partner, and that
he had come to make art arrangement for its payment, with interest. Presentment,
protest, and notice were alleged in the declaration. Lundie v. Robertson, 7 East, 231,
3 J. P. Smith, 225, where the indorser of a bill promised to pay it if the holder would
call again with the account. Held evidence of presentment and notice. Potter v.
Rayworth, 13 East, 417, where an iudorser's promise to pay to a subsequent indorser
was held evidence of notice, in an action by an intermediate indorser. Lord Ellen-
horough, C. J. said : " Whether the promise to pay was made to the ])laintiff, or to any
other party who held the note at tlie time, it was equally evidence that the defendant
was conscious of iiis liability to pay tlie note, which must be because he liad due notice
of the dishonor." See Patterson v. Becher, 6 J. B. Moore, 319, supra, p. G03, note s;
Hicks V. Duke of Beaufort, 4 Bing. N. C. 229, 5 Scott, 598, where tlie drawer of a bill
said: " If tlie acceptor does not pay, I must; but exhaust all your influence with the
acceptor first." The drawer afterwards directed the holder to raise money on his life and
that of the acceptor, but the negotiation was afterwards broken ofT. Held evidence by
which the jury might or might not infer notice. Parke, B., Burgh v. Legge, 5 JL & W.
418, 419 i Campbell ». Webster, 2 C. B. 258, where letters from the drawer of a foreign bill
containing an admission of liability, or a promise to pay, though conditional as to the
mode of payment, were held presumptive evidence of protest and notice. See Metcalfe
7). Richardson, 11 id. 1011, where the drawer of a bill remarked to the holder's clerk the
day after maturity, — the latter having said that tlie bill had been duly presented, and
that the acceptor could not pay it, — that he would see the holder about it. Held, that
it was properly left to the jury to infer from tlie conversation that the drawer had duo
notice. In Norris v. Salomonson, 4 Scott, 257, the only evidence of notice to the
drawer was the tcBtimony of a witness that the defendant said to him, in reply to an
inquiry wiiether he was aware or not that tiie bill had l)een dishonored, " Yes, I have
had a very civil letter on the sulijett from Mr. Gunnel!, an internKiliate indorsee, and I
will call arid arrange it." Held suflieient evidence of notice. Brownell v. Bonney, 1 Q.
B. 39, where the drawer of a bill was told timt a subseciuent indorser had been .sued on
the hill, and that as he, the defendant, had received the cash, and knew, the day before
maturity, that the hill would not be i)aid, he ought to ])ay it. The defendant rejdied,
that lie siiould not avail himself of the iiiforiinility of tlic notice, hut would pay the
bill. Held evidence hy which the jury rniglit infer due notice. Parka, B., Burgh v-

CH. XIII.] EXCUSES FOa WANT OF NOTICE. G15

place where the bill is payable. (w) Tlie reason for this is, that
it is an admission against interest ; that it is highly improbable
that a party, knowing, as must be supposed, his legal liability,
and what will constitute a discharge of that liability, should
admit it, or promise to pay the debt, unless all the proper meas-
ures had been taken to cause that liability to attach. Among
otlier circumstances which have been held to be presumptive
evidence of demand and notice are part payment, without ob-
jection to any want of, or informality in, the presentment and
notice ; (w) an offer to pay a iDart,(o) or to pay by instal-

Legge, 5 M. & W. 418, 419. In Jones v. O'Biie.f, C. B. 1854, 26 Eng. L. & Eq. 283,
the proof was, thiit the witness could not state positively that he had given i)roper
notice, but produced a note from the defendant, a drawer, saying that he would see the
bill arrajiged. The latter subsequently promised to give a judgment for the amount.
The defendant testified that, to tlic best of his belief, he had no knowledge of dishonor
until a fortnight after maturity. The judge told the jury that they must arrive at the
conclusion that notice was given the day of maturity ; that this might be proved by a
promise to pay the bill ; but if they believed the defendant, that they should find for
him. A verdict for the plaintiff was sustained. Chapman v. Annett, 1 Car. & K. 552,
seems opposed to these cases. There was no evidence of notice, but the defendant
had said that he would try to get the acceptor to pay the bill ; that he woukl call and
have the matter arranged ; and that he would have the bill taken up. There was a
book kept by the plaintiff, in which entries of notices were made. The book was not
produced. Pollock, C. B., instead of leaving the question to the jury, acknowledged
that the defendant's conversation amounted to a promise to pay ; but said he was of
opinion that there was no notice, and directed a verdict for the defendant. He also
said that it was for the court to say whether the promise amounted to a waiver. In
an action by a second indorser against the drawer, ])roof that the defendant iiad fur-
nished the firet indorsee with funds to pay the bill and costs, under a judge's order for
a stay of proceedings, will not dispense with proof of notice. Holmes v. Staines, 3
Car. & K. 19.

(m) Hodge v. Fillis, 3 Camp. 463, an action against the acceptor.

(n) Vaughan v. Fuller, 2 Stra 1246. The following is the report of this case : "In
an action upon a promissory note by the indorsee against an indorser, it was jiroved
that the defendant had paid part of the money. And Chief Justice Lee held that suffi-
cient to dispense with the proving a demand upon the maker of the note." Ilorford v.
Wilson, 1 Taunt. 12.

(o) The authorities on this point are in conflict. In Dixon v. Elliott, 5 Car. & P.
437, the bill was shown to the defendant, an indorser, ;uid inquiries were made for the
acceptor and drawer. The indorser said if the plaintiff would take 10«. on the pound,
he would secure it to them. The offer does not appear to have been accepted. Parle,
J. held the evidence sufficient to dispense with proof of dishonor. In Margetson v.
Aitken, Danson & L. 187, 3 Car. & P. 338, Lord Tentaxlen, C. J. and Bayleij, J. held
that, if the indorser offers to pay the holder 8s on the pound, on the amount, this dis-
penses with proof of notice. The offer was rejected. Contra, Standage v. Creighton,
5 Car. & P. 406, wlierc there was evidence that notice had been sent addressed to the
defendant, an indorser of a bill, at two places, but there was no evidence that he lived

316 NOTES AND BILLS. [CH. XIH.

meats ;(/?) service of notice to produce at the trial the letter
containing notice of dishonor uncomplied with ; (q) objecting to
payment upon other grounds than laches in presentment and no-
tice. (/•) Some of the cases have almost gone so far, that it would
seem that the only safe course for an indorser or drawer, when
payment is demanded of him, would be to expressly deny both
presentment and notice. Thus, for instance, a verdict against
the drawer of a bill was sustained, where the only evidence of
notice was, that the defendant, two days after maturity, sent a
person to the plaintiff to say that he had been defrauded of
the bill, and should defend any action upon it. (5) Whether

in cither. Proof that the defendant's attorney liad offered to pay £ 30 on the bill,
which was for £ 100, and to secure the residue by warrant of attorney, was held not to
be sufficient to dispense with proof of notice. The offer docs not appear to have been
accepted. Lord Denman, C. J. said ; " I think that that is not sufficient to dispense
witli proof of the notice of dishonor. The defendant might, if time had been given
him, have been willing to have waived any objection with respect to notice of dis-
honor." In Cuming v. French, 2 Camp. 106, note, the drawer, on being arrested,
offered as a compromise to give his bill at one or two months. His offer was re-
jected. Held not to obviate the necessity of demand and notice. Lord EHenhoromjh
said : " This offer is neither an acknowledgment nor a waiver, to obviate the necessity
of expressly proving notice of the dishonor of the bill. He might have offered to give
his acceptance at one or two months, althougli, being entitled to notice of the dis-
honor of the bill, he had received none, and altiiough, upon this compromi.se being
refused, he meant to rely upon the objection. If the plaintiff accepted the offer, good
and well ; if not, things were to remain on the same footing as before it was made."

(p) Croxen v- Worthen, 5 M. &, W. 5, an action against tlic maker of a note ])ayablo
at a specilied place. There was no evidence of a presentment there, whicii was alleged
in the declaration, but the defendant had promised to i)ay the note by instalments.
Alderson, B. said : " The defendant is supposed to know the law ; he knows, therefore,
that he is not liable, unless the note has l)een duly presxinted. Witli tiiat knowledge,
he undertakes to pay it. Is not that evidence for the jury that lie knows it has been
presented 1 " Gunson v. Met/., 1 B. & C. 193. 2 Dow. & K. 33-4, an action against the
drawer of a bill. An agreement between the drawer and a prior indorser. reciting that
the defendant had drawn, among others, the bill in question, that it was overdue, and
ought to be in the hands of the prior indorser, and that the latter sliould take the
money due liim on the bill by instalments, was held evidence of notice.

(q) See the cases cited infra, note s. See Campbell v. Webster, 2 C. B. 2.58.

(r) See the cases cited infra, note s. See Cam|)bell v. Webster, 2 C. B. 258.

(«) Wilkins v. Jadis, 1 Moody & R. 41, where Lord Tcnicrden, C. J. said : " It will
be a question for the jury whether the defendant had received notice from the plaintiff,
or some party to the bill. They certainly must bo satisfied that notice was given ;
mere knowledge of the dishonor is not suilicient. But is there not evidence of notice?
Tiie communication that any action will be defended is not put on the giound of want
of notice, but of fraud, and at that time the defendant knew the holders. How was ho
likely to know that fact, unless by having received notice ? It is a question of fact for
the jury, whether he had so or not; and their verdict will be given accordingly " In

CH. XIII.] EXCUSES FOR WANT OF NOTICE. 617

a conditional ofifer of payment, by way of compromise, which
has not been accepted, is evidence of demand and notice, seems

Eoberts v. Bradshaw, 1 Stark. 28, the plaintiflTs clerk swore, that on the day of matu-
rity the phiintiff gave him two papers to compare with each other, one of whicli he pro-
duced, purporting to be a notice of dishonor of the bill. He stated tiiat, the day after
he compared tiie papers, he carried a letter from the plaintiff to the defendant. This
not being heli sufficient evidence of notice, the plaintiff then proved service of a notice ou
the defendant, calling on him to produce a letter from the plaintiff, giving notice of the
disiionor of tiie bill. A verdict for tlie plaintiff on the above facts was sustained. Lord
EUenborowjh said : " 1 tiiinlv certainly tiiat there is a looseness in this evidence, and you
may afterwards move the court upon it. Supposing, however, tliat the paper delivered
had been a perfect blank, or contained matter wholly unconnected with the dishonor
of the bill, you might have produced it, and shown the fact to be so, since it is
evident wliat letter was the object of the plaintiff's notice. This is the first time the
identity of such a letter has been so minutely criticised, and the proof might, in
many instances, be attended with great difficulty ; as where letters, after being
written, are placed upon the table, it might afterwards be exceedingly difficult to
identify them with those afterwards put into the post-office." In the ensuing term,
the court refused a rule nisi for a new trial. In Booth r. Jacobs, 3 Nev. & M.
351, an action against the drawer, on two bills, one drawn on Fenton and the other
on Phillips, a verdict for the plaintiff was sustained, on the ground that the follow-
ing letter, written six days after maturity, was evidence of due notice of both
bills. " Your letter this day came to hand. We were rather surprised at the latter
part of your letter, wlierein you state you would take proceedings against us. We
fully expected that Phillips's bill would have been paid. It will be impossible for me
to go out of town to settle our accounts till after Christmas, wlien wc will remit you
some cash. Trade is at a stand still in London at present. We have been doing
very little business for these last three weeks, as we are determined not to give any
more credit, having had such severe losses lately. We have taken up £ 100 of return
bills of Mr. Fenton's, besides other bills on other shops which were returned, which
makes us short of cash at this present time. I have called this day on Mr. Phillips
about his bill. He was not at home. I will call again to-morrow. You may make
yourselves very eas}' about what we owe you. I will write to you again in a day or
two. Law expenses do neither party any good." It is somewhat difficult to see what
evidence of due notice of both bills is contained in this letter. In Bell v. Frankis, 4
Man. & G. 446, 5 Scott, N. R. 460, the defendant, a drawer, told the witness he ex-
pected to receive by post a notice of dishonor of the bill ; and afterwards gave him a
letter which he had received by mail, and requested him to negotiate a renewal of the
bill. The letter, which was in the plaintiff's hands, was not produced at the trial.
Held evidence of due notice, but a verdict for the defendant was not disturbed. In
Curlewis ». Corfield, 1 Q. B. 814, 1 Gale & D. 489, the plaintiff proved that he sent a
letter to the drawer, which was put into the letter-box of the latter, an attorney, at his
office. A service of notice on the defendant, calling on him to produce a letter sent to
him that day, containing notice of dishonor of the bill, was also proved ; and the de-
fendant failed to produce it. After this time the defendant told the plaintiff's attorney
that the bill had not been presented in due time, saying nothing about notice. A
verdict for the plaintiff was sustained, on the ground that the above facts were
evidence of due notice. Lord Denman, C J. said : " Taking the whole of this case
together, I think there was evidence to go to the jury, The plaintiff" proved tliat some
letter was '^ut into the defendant's box on Sept. 28th ; and that notice to jiroduce, not
52*

618

NOTES AND BILLS.

[CH. XHL

to be unsettled ; the authorities being, as has been seen,(^) in a
state of conflict. With regard to the person to whom the prom-
ise or acknowledgment is to be made, it has been held, as has
been remarked, («<) that a promise to a subsequent party enures
to the benefit of an intermediate party who has taken up the
paper. The courts in England, in the late cases, seem to show a
disposition to shift from the position of waiver to that of pre-
sumptive evidence, and it is not impossible but that they may
have abandoned the former doctrine. (y)

Many of the American authorities are so far inconsistent with
the English cases which we have just examined, that it is not
certain whether the courts, in some instances, recognize the doc-
trine of presumptive evidence at all. This may have arisen
from confounding the distinction between waiver and presump-
tive evidence, or because that distinction does not seem to have
been presented for consideration. (i^;) In some cases, the courts

complied with, must have some effect. To this is added the conversation with the
plaintiff's attorney, in which the defendant placed his defence on a different ground
from that of omission to give notice of dishonor. The case, therefore, is like Wilkins
V. Jadis," I Moody & II. 41, sMjora. Patteson, J. said, that, witliout tiie conversation, tho
e\-idcnce would not probably be sufficient. Sec Brett v. Levett, 13 East, 213, where
want of notice to the drawer of a bill due Jan. 28th, he having become bankrupt on Dec.
28th, was supplied by evidence that he said, on a day subsequent to tlie latter date, on
being asked by the plaintiff whctiier the bill would be paid, " No, it will come back."

(t) See the cases cited supra, p. 616, note s.

(u) Potter V. Kayworth, 13 East, 417, supra, p. 614, note I; Gunson v. Metz, 1 B.
& C. 193, supra, p. 616, note/).

(v) Thus, in Ilioks v. Duke of Beaufort, 4 Bing. N. C. 229, sirpra, p. 614, note /, tho
promise was certainly as clear as in the case of Ro;;ers v. Stevens, 2 T. II. 713, suj>ra, p.
598, note h, and other earlier cases. Inasmuch as it was a question of notice, tlie point
whether the defendant knew whether he had received it or not might have been raised.
But the jury were directed simply to find whether there iiad been notice or not. So in
Brownell v. Bonney, 1 Q. B. 39, and in Jones v. O'Brien, C. B. 18.54, 26 Eng. L. &
Eq. 283, cited supra, p. 614, note /, from the evidence, there certainly was ground to
contend that there iiad been actual laches, and knowledge ; but the court decided on
the ground of ])resumptivc evidence, and not ujjon that of waiver. Iloulditcli v. Canty,
4 Bing. N. C. 411, seems to have been decided, however, on the ground of waiver. Sco
tlic remarks of Joy, C. B., cited supra, p. 611, note e. It is somewhat singular that tho
Cliicf Baron should characterize waiver as " this new-fangled doctrine"; because tho
fluctuation appears to be from that doctrine, which is clearly laid down l)y the earlier
cases, to that of presumptive evidence, wiiich is later.

{w) Tiiornton v. Wynn, 12 Wheat. 183, seems hardly rcconcibible with liie English
cases. Tho court below admitted the following evidence as competent to suppoit tho
action against an indorscr of a note, without further proof of demand and notice. The
defendant, on demand being made of him, said lie knew the maker had not, and was
not, to pay the note; that it was his concern ah)ne, and tliat the maker hiul noliiing to

CH. XIII.] EXCUSES FOR WANT OF NOTICE. 619

seem unwilling to carry out the doctrine to such an extent as
is done by the English authorities. Thus there is certainly
ground to contend, on these authorities, that, if an indorser
takes security after maturity, this is evidence of demand and

do with it. Washington, J., p. 188, admits that "these dedarations amounted to aa
unequivocal admission of tlie original liability of the defendant to jjay the note." This
would seem suffieicnt to come within the English authorities ; but the court decided
that the defendant could not be held, because there was no proof of knowledge of
laches at the time the declarations were made. In Davis ii. Gowen, 17 Maine, 387, the
only proof of demand and notice was, that notices for the maker and indorser were
deposited in the post-office on the day of maturity ; all the parties residing in the same
town. The defendant told the plaintiff's attorney that, if he would not sue the note,
he would immediately see it paid. Suit was accordingly delayed, and the defendant
afterwards made similar promises. Held, that the court should have instructed the
jury that the action could not be maintained, because the facts do not show knowledge
of laches. See Grain v. Colwell, 8 Johns. 384, where the indorser promised " to turn
out notes." The plaintiff refused to receive them, and subsequently the defendant re-
fused to deliver them. Beekman v. Connelly, cited 16 Johns. 154, where it was held
that mere proof of a promise to pay, without evidence of knowledge of laches, does not
dispense with proof of regular notice. Trimble v. Thome, 16 Johns. 152, where the
notice to the indorser was held insuftieient, because it was deposited in the post-office
of the town in which he lived. The defendant had called on the plaintiff's attorney,
admitted his liability, and promised to pay the note, offering to pay part in cash and
the balance by notes. The proposition was acceded to, but the defendant neglected to
carry it out, and suit was then brought. The plaintiff was nonsuited, for not proving
knowledge of laches. With regard to this case it may be remarked, that the
presumption in fiict, though not in law, is, that a party would be more likely to
receive a drop-letter than if it had been mailed to him from a distant place. The
defendant might also be supposed to know wliether he had received notice or not.
This case, however, as will be seen, has been overruled, and its authority frequently
denied. It is affirmed in Jones v. Savage, 6 Wend. 658, where the drawer, after suit,
requested a delay of proceedings, and after some negotiation the defendant j)romised
to make an arrangement satisfactory to the holder. The defendant also included the
amount of the holder's claim, in an account of his creditors, on an application for his
discharge in insolvency. Held insufficient to charge the defendant, without proof of
knowledge. Barkalow v. Johnson, 1 Harrison, 397, where there was some slight evi-
dence of demand and notice. The defendant after suit admitted his indorsement and
his liability, and offered to pay part in cash and the balance by note. The propositions
were not acceded to. Held not sufficient to support the action, principally because no
knowledge of laches was proved. U. S. Bank v. Southard, 2 Harrison, 473, where a
promise to pay the note by an indorser as soon as he could was held insufficient to
support an action, on the ground of want of knowledge. In Sussex Bank v. Bald-
win, 2 Harrison, 487, the demand was regular, and there was evidence that the notice
had been mailed the next day after dishonor, but it was not proved to have been put
in the office in time for the mail of that day. The defendant had admitted that he
had received a notice through the bank, and had requested the plaintiff twice to renew
the note. Held not sufficient evidence to maintain the action. In New Orleans Bank
V. Harper, 12 Rob. La. 231, Lacoste v. Harper, 3 La. Ann. 385, the notice was held
bad because it was not directed to the post-office nearest to the residence of the drawer.

U-0 NOTES AND BILLS. [CH. XHI.

notice ; for why should a person take these steps to secure
himself, unless his liability actually existed ? But the contrary
appears to have been decided. (a;) There are cases in which
the courts recognize the English law, but deny its authority ;

A subsequent promise to pay by the latter was held insufficient to support the action.
So Gleun r. Thistle, 1 Rob. La. 572, where notice was held defective because the post-
office was used as a means of deposit. There was also evidence that the defendant
usually got his letters there, and of a promise to pay. The plaintiff was nonsuited be-
cause no knowledge was proved. In Harris v. AUnutt, 12 La. 465, the notarial certifi-
cate of notice was held insufficient on account of informality. When payment was
demanded of the indorser, he promised to go to his immediate indorser and arrange the
note. The prior indorser, who was also a defendant, offiired to give other notes for the
amount. The subsequent indorser said that he would see that the prior one gave the
notes. A judgment for the plaintiff was reversed, and a nonsuit entered for want of
proof of knowledge. So in Tickner v. Roberts, 11 La. 14, the protest was held no
evidence of demand, because not dul}^ authenticated. The defendant, a drawer, prom-
ised to pay. The drawer was discharged for want of evidence of knowledge of laches.
In Laporte v. Landry, 17 Mart. La. 359, 16 id. 125, the notice was held bad, because
deposited in the post-office where the indorser lived. The defendant offered to indorse
notes of tlie same maker for the same amount, but the holder wished him to give his
own note. The plaintiff was nonsuit. In Bank of U. S. v. Leathers, 10 B. Mon. 64,
the evidence of presentment and notice was the notarial certificate of protest, which
was held no evidence of the facts, because the instrument was a note. A promise, ten
years after maturity, to pay the note, was held insufficient, there being no proof of
knowledge of laches. It may be, however, that in some of the above cases there was
actual laclics ; but this fiict is neither given by the report of the cases nor adverted to in
the opinions.

(x) Otsego Co. Bank v. Warren, 18 Barb. 290, where the notarial certificate of de-
mand on the acceptor of an inland bill was held defective for informality. It does not
appear whether notice was given or not. Tower v. Durell, 9 Mass. 332, where tiiere does
not appear to be any other evidence of demand. No facts are reported wliich are in-
consistent with the fact that the demand and notice miglit have been regular in both
cases. The courts decided them on the ground of waiver, and did not notice the one
now under consideration. With regard to conditional promises, not accepted, it will be
seen that in some of the cases cited supra, p. 618, note i;, there were such instances, and
they were noticed in the ojjinions of tlie court. In Bank of Vcrgennes v. Cameron,
7 Barb. 143, an action against the indorser of a foreign bill, a niemornnduni at the foot
of tlic draft, made I)y the notary and signed witli his initials, stating tlie protest, the
mailing of the notices to the drawer and indorscrs, and tlie place to wliich tiicy were
sent, was held no evidence of notice, even in connection witli the fact that tlie defend-
ant, within three days after maturity, e.xiiibited to a witness a notice wliich he had just
received through the [lostoflitte. Tlie i)ill was payalilc in Burlington, Vcriuont, and
the indorscrs lived in Troy, New York. Tiiere was also evidence that one of the de-
fendants, who were partners, had admitted the protest, and luomised to do all in his
power to see the draft jiaid ; but it did not apjiear whether this promise was made be-
fore or after the dis.solution of the firm. In Carter v. Burley, 9 N. H. 558, the indorser
agreed, when informed of the dishonor of the note, to give certain inercliandise as se-
curity. Held not to be prima facie evLilence of due demand and notice. Conlri', Dc-
bnys V. Mollcrc, 15 Mart. La. 318, where the defendant offered to give a 'norlgago as

CH. XIII.] EXCUSES FOR WANT OF NOTICE. 621

60 far, at least, as a promise to pay is concerned. (y) The
weight of American authority is, however, in favor of the Eng-
lish rule, and there are many cases which hold that a promise to
pay, or an acknowledgment of liability, is presumptive evidence
that everything has been properly done, in order to render an
indorser or drawer liable, (z) There are also cases which hold

security for the note, which was held equivalent in this respect to a promise to pay. In
Jones V. Savat^e, 6 Wend. 658, snpra, p 619, note w, and Moore v. Hardcastle, 11 Md.
486, notice was sent to the shire town of the county where the defendant lived. Held
insufficient, because due inquiries were not proved to have been made, and there was a
nearer post-office. The following letter was held to be no evidence of notice : "Mr.
Tarr informs me that you positively refused to deduct one cent on the negotiable note
indorsed by me. Now, sir, I made a very reasonable request, merely to deduct the in-
terest. I do not, I assure you, feel able to pay the principal. My means are limited ;
but I have some friends that would no doubt assist me. I told you, if you would do
it, you should have your money this fall, without any trouble. You refused the over-
tures, thougli I think extremely moderate." The letter ended with a defiance to the
plaintiff to collect the note if he could.

(y) Otis V. Hussey, 3 N. H. 346, where Richanho/i, C. J. said : " We are aware that
it has been held in England that a promise to pay is, in these cases, to be left to the
jury, as evidence of a demand. In an old commercial country like England, where a
great portion of the business has long been transacted by means of negotiable paper,
and where most of those who deal in such paper must be presumed to be acquainted
with the law in relation to it, it may be proper to leave it to a jury to infer a demand of
the maker from a promise of the indorser to pay. But in this State, where negotiable
paper has a very limited circulation, there is no ground on which such an inference from
that fact can rest; and we are of opinion that the rule adopted in New York is the true
one. It must be shown affirmatively that the defendant had notice, when he made the
promise, that no demand had been made, and that there had been no attempt to make
one." So in Farrington v. Brown, 7 N. H. 271, where the plaintiff, instead of proving
demand and notice, offered the following writing, addressed to the plaintiff's counsel, as
evidence: "Portsmouth, July 15th, 1828. I hereby hold myself accountable for the
payment of a note signed by Jonathan Brown, payable to me, and indorsed by me,
dated April 1st, 1828, payable in sixty days, for $88.32, now iu your hands for collec-
tion." See Carter v. Burley, 9 N. H. 558, where the indorser offered to give security ;
Nelson, C. J., Keeler v. Bartine, 12 Wend. 110, 119.

(z) Bank of U. S. v. Lyman, 20 Vt. 666 ; Collamer, J., Russell v. Buck, 11 Vt. 166,
175 ; Bennett, J., id. 182. See Nash v Harrington, 1 Aikens, 39, 2 id. 9 ; Hosmer, C. J.
Breed v. Hillhouse, 7 Conn. 523, 528; Bruce v. Lytic, 13 Barb. 163; Tebbetts v.
Dowd, 23 Wend. 379 ; Pierson v. Hooker, 3 Johns. 68 ; Loose v. Loose, 36 Penn.
State, 538 ; Duvall v. Farmers' Bank, 9 Gill & J. 31, 7 id. 44, where the following
written agreement was held evidence of presentment and notice, with reference to a
note which was overdue at the date of the agreement : " Whereas I am indorser,"
&e., "and whereas the bank, which holds the notes, has agreed not to protest the
same, or to ask a renewal of them when they become due, I do hereby agree to dis-
pense with all notice of the time of payment, or of the non-payment of said notes, and
to be answerable for the amount of said notes, although no such notice is given to me."
See Walker v. Laverty, 6 Munf. 487 ; Pate v. M'Clure, 4 Rand. Yn. 164 ; Higgins v.
Morrison, 4 Dana, 100, where the indorser of a bill said he would pay if his co-indorscr

622 NOTES AXD BILLS. [CH. XHI.

that demand and notice are proved by part payment ; (a) a prom-
ise to pay by instalments ; {b) the insertion of a bill among the
debts of an insolvent in his schednle ; (c) a "written admission
of the reception of notice ; (d) a reqiiest to have the note kept
charged in a separate acconnt, with no objection to the account
when rendered, as to the bill, but simply to claim for an addi-
tional item of credit ; (e) an agreement with the maker to take
back the note, and to return the property for which it was given,
to the maker; (/) an agreement to let judgment go by default,
if the holder would sue the defendant and the maker jointly, in
the State court, instead of the defendant alone, in the United
States court ; (g") part payment by tlie maker, indorsed on the
note on the day of maturity. (A)

The distinctions between the two classes of cases which we
have been considering are well marked, and among them may
be mentioned the following. In the waiver cases, there must be
proof that the party who made the promise had knowledge of

would, and subsequently called on the latter, and desired to see some securities j,'ivcn by
the drawer. In a bill in equity, he did not rely upon the want of notice ; and the co-
indorser had taken up the bill. Held evidence of notice, and that the defendant was
liable to his co-indorser for contribution. See Lawrence v. Ralston, 3 Bibb, 102 ; Ken-
non r..McRea, 7 Port. Ala. 175 ; Schmidt v. Radcliffe, 4 Strob. 296 ; Hall v. Freeman,
2 Nott & McC. 479; Robbins v. Pinckard, 5 Smedes & M. 51 ; Offit v. Vick, Walk-
er, 99 ; Clayton v. Pliipps,'14 Misso. 399 ; Dorsey v. Watson, id. 59 ; Mensc v. Osbern,
5 id. 544 ; Walker v. Walker, 2 Eng. Ark. 542 ; Oglesby v. Steamboat, 10 La. Ann.
117; Union Bank v. Grimshaw, 15 La. 321; Dcbuys v. Mollere, 15 Mart. La. 318;
where the defendant oft'cred to give security. This case is contra to Carter v. liurley,
9 N. H. 558. It may be remarked, that in some of the above cases the distinction be-
tween waiver and presumptive evidence does not seem to have been drawn with precis-
ion. Coiven,J., in Tebbetts v. Dowd, 23 Wend 379, witli respect to the cases which
deny the doctrine of jjrcsumptive evidence, said, p. 403 : " But, moreover, a decisive
answer to the case is, that tiie mass of American autliority against it is as overwhelm-
ing as the British." However it might have been when that case was decided, we think
that there is not at present such a j)rcpondcran('c of autliority as will be seen by com-
paring the cases cited in this note with those cited siipi-a, p. CI 9, note iv.

(a) Bank of U. S. v. Lyman, 20 Vt. 606; Sherer v. Easton Bank, 33 Penn. State,
134 ; Levy v. Peters, 9 S. & R. 125 ; Bibb v. Peyton, 11 Smedes & M. 275. Sco Union
Bank v. Grimsliaw, 15 La. 321.

{b) Union Bank v. Grimsliaw, 15 La. 321.

{(l) Commercial Bank v. Clark, 28 Vt. 325.

(e) Bank of U. S. v. Lyman, 20 Vt. 666.

(/) Andrews v. Boyd, 3 Met. 434.

{(/) Robbins V. Pinckard, 5 Smedes & M. 51.

(A) Lane v. Steward, 20 Maine, 98.

CH. Xin.] EXCUSES FOR WANT OF NOTICE. 623

the neglect, and the burden is upon the plaiiitiff to prove this.
In the cases on presumptive evidence there can be no such re-
quirement, and the cases on this subject, in which the defendant
has been discharged for want of such proof, are entirely incon-
sistent with the doctrine itself. For upon what is it founded,
unless upon the ground that the presentment was regular, and
the notice duly given ? Hence, to say that there must be knowl-
edge of neglect would be, as has been remarked, a legal sole-
cism, (t) But there appear also to be authorities in which the
opposite mistake has been made. Thus it has been said, in a
Treatise on Bills, that (j) " a promise to pay will entirely dis-

(i) Cowen, J., in Tebbetts v. Dowd, 23 Wend. 379, 392, after citing the English cases,
said : " In this whole score of cases, and more, ranging from 1730 to 1839, no trace of
the rule appears, that, in order to make the promise available as an admission, it is
necessary to show that the drawer or indorser was aware of laches, which the promise
was intended to cure. A remedy for laches is not the object. To require knowledge
of laches would render every case going on the principle of presumptive evidence a
legal solecism. The ground is, that the promise shall be received, not as binding per
86, but as evidence that there were no laches ; in other words, that regular present-
ment had been made, that it was followed by non-acceptance or non-payment, of which
notice had been duly given. Otherwise, why should the man promise 1 Will any one
do so without knowing that he is liable 1 Common experience shows that he will not.
The English cases are therefore in exact accordance with the principles of presumptive
evidence. These principles are but another name for such connections between moral
causes and effects as are evinced by general observation." The case of Trimble v.
Thorne, 16 Johns. 152, which is overruled by this case, was denied by Hosmer, C. J., in
Breed v. Hillhouse, 7 Conn. 523, who said that "this case, so far as my knowledge
extends, stands alone and unsupported." So Bennett, J., in Russell v. Buck, 11 Vt.
166, 183, said : " It is believed this case is opposed to the whole current of decisions,
and establishes a rule of evidence not supported upon principle or by authority."
Collier, C. J., Kennon v. McRea, 7 Port. Ala. 175, 183 ; Stromj, J., Loose v. Loose, 36
Penn. State, 538, 545.

(j) Byles on Bills, p. 237, citing Taylor v. Jones, 2 Camp. 105 ; Stevens ;;. Lynch, 12
East, 38, 2 Camp. 332. But neither of these cases bears out the pro])Ositiou. The first
case was one of presumptive evidence. The only evidence of presentment of the note and
notice was, that the indorser, two years after maturity, promised to pay, and requested
time. Baijley, J., 2 Camp. 105, " held that, M'here a party to a bill or note, knowing it to
be due, and knowing tliat he was entitled to have it presented when due to the acceptof
or maker, and to receive notice of its dishonor, promises to pay it, this is presumptive
evidence of the presentment and notice, and he is bound by the promise so made."
This latter clause, although it may seem to support the doctrine contended for, is alto-
gether too uncertain. The judge may have intended to have said that it was binding
only until laches appear. Or, in other words, that here is evidence of due presentment
and notice, and nothing to control it ; or to show that there were laches. Hence a jury
might be " bound," under such circumstances, to find for the plaintiff. In the second
case, the promise was held binding because actual knowledge was proved. Lord El-
lenhorough, as reported in 2 Camp. 332, allowed that ignorance "would do away the

624 NOTES AND BILLS. [CH. XIH.

pense with proof of presentment or notice, and will throw on
the defendant the double burden of proving laches, and that he
was ignorant of it." This same principle seems to have been
afl&rmed by some authorities. (^•) But so far as presentment is
concerned, this cannot be reconciled with either doctrine. Not
with that of presumptive evidence ; for as soon as the defendant
has proved laches only, the plaintiff's case is gone, for there can
be no presumption of due presentment when there is actual

effect of the acknowledgment and promise, but it appeared that the defendant was fully
acquainted at the time " with the circumstances.

(k) Loose V. Loose, 36 Penn. State, 538, where Strong, J. said : "There was proof
on the trial, that, some four or five weeks after the indorsement of the notes to the plain-
tiff, they having been overdue when indorsed, the defendant stated that he was fast, ac-
knowledged his liability, and promised to pay them. In reference to this proof, the
court instructed the jury, in substance, that they might infer from it that the notes had
been duly presented to the maker for payment, and that notice of his default had been
given in time to the defendant, or that demand and notice had been waived by him.
The jury were also instructed, that they might infer from the defendant's promise that
he had full knowledge of the facts at the time he made it; and that if his acknowl-
edgment of liability and his promise to pay were made in mistake, the burden was
upon him to prove it. This instruction is supposed to have been erroneous. The de-
fendant contends, not that an acknowledgment of liability and a promise to pay, made
by an indorser after default of payment by the maker, will not dispense with proof of
demand and notice of non-payment, if made with a full knowledge of the facts that
there had been laches in the presentation and notice, but he insists that it is incumbent
upon the holder to adduce evidence that the indorser had such knowledge, and that it
cannot be inferred from his promise to pay. In otlier words, it is argued that the bur-
den is upon the holder to show by distinct evidence that the promise was not made in
mistake, or in ignorance of the existence of laches. This position cannot be maintained.
What is the precise effect of a promise to pay, made by an indorser after a note or bill
has flillcn due and been dishonored, has been a subject much debated. Many of the
cases hold that it amounts to an admission that a proper demand was made, and that
due notice was given. If it be such an admission, it is not apparent how it can be ne-
cessary to prove, in addition to an indorser's promise, that he knew no sufficient demand
had been made or notice given. Other cases, i)crhaps more numerous, hold that a
promise to pay, or an acknowledgment of liability, is a waiver of due presentation and
notice ; and some cases treat it botli as a waiver and an admission, llcgarding it as a
waiver, it of course must be essential that the party making it knew the laches M'hich ho
is alleged to have excused, for waiver is not without intention. There is, however, very
great harmony in the decisions in holding that a promise or acknowledgment itself raises
a presum|)tion that the drawer of the bill, or the indorser of the note, was acquainted with
the laches of the holder, which hi.s promise is alleged to have waived. I know of but one
case in which tiie opposite doctrine has been distinctly asserted, and that is the case of
Trimble v. Thorne, IG Johns. l.'J2, and it has often been spoken of with disapjirobation by
other courts." So far as presentment is concerned, it would seem somewhat astonishing
that the judge should say that there was " very great harmony " in the decisions that a
promise to pay raises the presumption of knowledge of laches. According to tiic cases
cited supra, j). 601, note x, over thirty in number, the " harmony " would a])pear to be

CH. XIII.] EXCUSES FOR WANT OF NOTICE. 625

proof of laches. Nor can it be reconciled with the doctrine of
waiver. For as soon as the defendant proves laches, the plain*
tiff is bound to prove that the former had knowledge of the
laches at the time of the promise. As to notice, the rule may
be properly stated, (/) though it is not snpported by all the au-
thorities, (w) on the ground that a promise to pay, as regards
notice alone, may be held to be -prima facie binding, because tlie
defendant may be presumed to know whether he received notice
or not ; and it is incumbent on him to remove this presumption

directly the other way ; and the rule laid down in this case is not supported by more
than two or three cases, and it is somewhat doubtful if it is by any. As to notice, we
do not see how tlie cases can be reconciled. Supra, p. 603, note a, 604, note h. Colliiv,
0. J., in Kennon v. McRea, 7 Port. Ala. 175, 184, cited the remark from Byles with appro-
bation, and the cases cited by that author; and also Nash v. Harrington, 1 Aikens, 39,
2 id. 9. This last case is doubtful authority on the point for which it is cited. The note
was on demand, dated Jan. 30th. The demand was made Dec. 5th, and notice given
Dec. 7th. The maker at the time of indorsement was notoriously insolvent, and contin-
ued so till the trial. The first point which arose was, whether the demand was not too
late, or whether due diligence had been used. The court, after stating that " it would
not seem reasonable to apply to this case that law merchant which i.s made to ajjply to
notes given by good responsible men, and negotiated before they become payable,"
which is not law, said that they were " not fully prepared to say whether this was or
was not reasonable diligence." They decided that the judge was wrong in refusing
to admit evidence that the defendant acknowledged his liability, and promised to
pay. They seem to have put their decision partly upon the ground that the evidence
was admissible to show that due diligence in giving notice was used. With regard to
knowledge, Hutchinson, J. said : " This promise must be prima facie binding ; but the
defendant urges that it is not binding, unless he, at the time of the promise, knew of
the laches, which operated to discharge him. It is true such a promise, made in total
ignorance of a defence, which existed, would not bind ; but notliing appears but that
the defendant knew every circumstance ; and if he would exonerate himself from his
promise, on this ground, the burden of proof rests on him. For he could not be igno-
rant of the time when notice was given him of the non-payment." This last clause
would seem to show that, even as to knowledge, the court decided that a promise to
pay raised that presumption with regard to notice, which was the point under consid-
eration, on the ground that the indorser must have known whether he received it in
due time.

(/) See Nash v. Harrington, 1 Aikens, 39, 2 id. 9, supra, note k.

(m) The facts in Loose v. Loose, 36 Penn. State, 538, were as follows. The notes
were overdue at the time of indorsement. It does not seem to have been disputed but
that the demand, which was made four days subsequent to indorsement, was within
due time. The question was, whether the notice was regular, which was given four-
teen days after the demand. There was evidence of a promise to pay, admission of
liability, &c. The presiding judge seems to have instructed the jury, that, as to
notice, the promise was either evidence that a prior notice had been given, or that it
raised the presumption that the defendant knew that he had not received it at the
proper time. The decision is, that the charge was correct, but the language of Strong, J.
is stronger than the facts would seem to warrant.

Vol. I.— 2 P 53

626 NOTES AND BILLS. [CH. XHL

bj proof of ignorance of laches. It would be more accurate, ac-
cording to the authorities, to state the rule as to presentment as
follows : A promise to pay throws the burden on the defendant
to prove laches, but the burden is again shifted to the plaintiff
to prove knowledge, so soon as laches are shown. Another dis-
tinction between the two classes of cases is, that in those of
waiver greater strictness is required as to the evidence of the
promise than in those to the point of presumptive evidence.
This distinction may be seen from the instances which we have
already given. Another distinction is, that questions of waiver
would seem to be more matter of law than those of presumptive
evidence. All that is required in the former is, to prove the
promise sufficiently clearly, and knowledge ; but in the latter,
the indorser or drawer will be able to repel the presumption,
either by showing actual laclies,(w) or any other circumstance
going to show neglect. (o) Thus even a written admission by
the indorser that he had received due notice is only prima facie
evidence, and maybe rebutted. (;?) The advantage of allowing
an admission of an indorser or drawer to operate as an admis-
sion of due demand and notice, or presumptive evidence, may
be seen in cases where the usual methods of proving them are
unavailable ; as, for instance, wiiere the party who made the
demand and gave the notice is dead, and where a notarial cer-
tificate or record is inadmissible evidence. (<7) It would also
seem beneficial where the evidence is defective for some reason
rather technical than just ; as, for instance, in case where the

(n) Bruce v. Lytic, 13 Barb. 163.

(o) Lawrence v. Ralston, 3 Bibb, 102 ; Sharkey, C. J., Robbins v. Pinckard, 5
Smedes & M. 51, 73; Bibb ». Peyton, 11 id. 275. Li Hyde v. Stone, 20 How. 170,
the insertion of the bill among tlie debts of the insolvent, upon liis sciiedule, was held
evidence of notice, the sufficiency of wliicli is for the jury, and not subject to review in
the Sujireme Court of the United States. See Ricketts i-. Toulmin, 7 Law J., K. B.
108 ; Jackson v. Collins, 17 Law J., N. S., Q. B. 142.

(p) Commercial Bank r. Clark, 28 Vt. 325. In Duvall v. Farmers' Bank, 9 Gill &
J. 31, the agreement relied on was written, but lield subject to be rebutted by other
proof.

(q) Sharketj, C. J., in Robbins v. Pinckard, 5 Smedes & M. 51, 72, said : " The no-
tary, it seems, died after suit brouglit, and before trial ; aiul in sucii cases it is com-
petent to resort to secondary evidence. This may account for the inability of the
plaintiff to prove notice, and furnisli a reason why no such proof was attempted.
Under sucli cirrmmstanccs, it is peculiarly proper to open the door for the admission of
presumptive evidence, and the promises of the defendant were sufficient to raise the
Btrongest presumptions against him."

CH. Xm.] EXCUSES FOR WANT OF NOTICE. 627

proof of notice is that it was deposited in the post-office of the
town where the indorscr lives. There is certainly in such cases,
under the existing regulation of the mails, more probability that
a notice so deposited will reach the party for whom it is intended
than if it were mailed for a distant place. Because in the first
instance there are only the chances of neglect in one post-office
to be considered, while in the latter there are generally the
chances of neglect in several offices, and the risk of negligence
and loss incurred in the transportation of the mail from place to
place to be taken into account.

SECTION V.

GENERAL REMARKS ON THE SUBJECT OF EXCUSE FOR NON NOTICE.

It has already been stated, that a notice duly sent by a sub-
sequent to a prior indorser enures to the benefit of the inter-
mediate indorsers ; (r) therefore an indorscr who has been com-
pelled to take up a note may show, by way of excuse for not
giving notice himself to the indorser whom he wishes to hold,
that one of the subsequent indorsers gave due notice to the de-
fendant. In the cases which support this doctrine there appears
to have been an actual reception of the notice, and it would
seem to be still unsettled whether the rule applies to such cases
only. Thus, as has already been said,(s) if the holder, after
making the necessary inquiries, and using due exertions to find
where an indorser lives, should send the notice to the wrong
place, the indorser would be liable to him, although the notice
was never received. The question might arise here, whether
these facts, or this excuse, would so far enure to the benefit of
an intermediate indorser who has been compelled to take up the
bill, his liability being undoubted, that they would constitute a
valid excuse, in his behalf, for not himself notifying the indorser.
There would seem to be good reason for holding him liable, upon
the ground that the intermediate indorser, upon payment of the
bill, was subrogated to the rights, and stood in the place of the
subsequent indorser. We are aware of only on& case in which

(r) Supra. ^ 504, note a.
(s) Supra, p. 496, note h.

628 NOTES AND BILLS. [CH. Xm.

this question was presented distinctly for adjudication. In this
the indorser sued was held liable in the court below, and this
decision appears to have been overruled by a higher tribunal in
the same jurisdiction. The facts of the case, however, show
that the plaintiff was himself the principal cause of the notice
having been missent ; and that he actually knew where the
defendant resided, and, by implication at least, that the notice
had been transmitted to the wrong place. (^)

It is a sufficient excuse for delay in presenting a note or bill
payable on demand or at sight, to prove that it has been put
into circulation by different parties, (zt) and the same would
doubtless be true with respect to notice. But where a note or
bill on demand has been actually dishonored on presentment,
the indorser is entitled to notice within the same time as in
the case of other notes and bills, (y) unless the paper has come
into the hands of a holder in good faith, ignorant of tho
laches of the party who presented it, and who is not himself
negligent in taking the necessary steps to fix the liability of the
indorser.

Notes and bills in which no time for payment is specified
stand upon the same footing,(t^) and, in many respects, so do

(t) Beale v. Parish, 24 Barb. 243, overruled 20 N. Y. 407. The plaintiffs had
indorsed to a bank ; and the notary, after inquiring at the bank, which could give no
information, gave notice to the plaintiffs, and asked thera where he should send tho
notice to the first indorser. They answered tiiat he sliould send the notice to Dunkirk
or Buffalo, and requested him to forward the notice to both places. The i)laintiffd
knew that the indorser resided in Canandaigua, and gave their direction through mis-
apprehension, there being no pretence of intentional misrepresentation on their part
Tiie Supreme Court held the defendant liable, mainly on the ground of subrogation,
Roosevelt, J. delivering a short opinion to this efltect. Pmhodtj, J. dissented, mainly on
the ground that the right of subrogation did not exist, but alluded to the " careless
misdirection " of the plaintiff. Grover, J. delivered the overruling opinion of the
Court of Appeals, which proceeded on two grounds. One was, that the bank was
bound to send a new notice as soon as it discovered the mistake in the first, and there-
fore could not have recovered on the note, had they continued to hold it. But this
seems in direct contradiction to Lambert v. Ghisclin, 9 How. .5.')2, which liolds that, if
a notice be sent after reasonable diligence, although inefi'ectually, the right of action at
once accrues. The other ground was, that if the bank had the right of action, it did
not pass by subrogation to the plaintiff, and that " there is no authority for holding
that an excuse for the omission to serve notice by the holders shall extend to other
parties for whom there is no such excuse."

(u) Supra, p. 268, note d,

(r) Supra, p, 519, note m.

(w) Supra, p. 381.

CH. Xm.] EXCUSES FOR WANT OF NOTICE. 620

notes indorsed after maturity ; [x) but there are authorities ii:
which it is said that notice sent within two months after a de-
mand of such a note was sufficient,(7/) and that no notice was
necessary. (2r)

It may be laid down as a universal rule, that neither knowl-
edge or the probability, however strong, that a note or bill will
be dishonored, (a) nor mere knowledge that the bill has been
dishonored, not obtained in the regular manner, and from a
party who has the right to give notice, is the equivalent of legal
notice ; and hence it does not constitute any excuse for failure
to give this in the proper manner.(6) It has been said, that the

(x) Supra, p. 268, note g, p 381, note;.
(y) Supra, p. 519, note q.
(z) Supra, p. 519, note r.

(a) Cresswdl, J., Gaunt v. Thompson, 7 C. B. 400, 409. As an illustration of this,
the known insolvency of the maker constitutes no excuse.

(b) In Tinthil v. Brown, 1 T. R. 167, 169, Ashhurst, J. said : " Notice means something
more than knowledge." In Esdaile v. Sowcrby, 11 East, 114, Lord EUenfjorough said :
" As to knowledge of the dishonor by the person to be charged on the bill being equiv-
alent to due notice of it, given to him by the holder, the case of Nicholson v. Gouthit,
2 H. Bl. 610, is so decisive an authority against that doctrine, that we cannot enter
again into the discussion of it." In Burgh v. Leggc, 5 M. & W. 418, 420, Parke, B said :
" There must be proof of a notice given from some party entitled to call for payment
of the bill, and conveying in its terms intelligence of the presentment, dishonor, and
parties to be held liable in consequence. That is the true meaning of the word ' no-
tice,' when used in declarations of this kind, and the mere knowledge of a party is not
enough." Alderson, B. said : " I think we ought to construe the word ' notice ' as
meaning a notification of the fact of the bill having been dishonored after the present-
ment took place ; and it is far better for the advancement of justice to adhere to this
simple meaning, than to confound notice with knowledge." In Mlers i'. Brown, 11
M. & W. 372, 374, Alderson, B. said : " Knowledge of the dishonor, obtained from a
communication by the holder of the bill, amounts to notice." See also the remarks of
Cresswell, J., in Gaunt ». Thompson, 7 G. B. 400, 410. In that case the holder pre-
sented the bill at the house of the acceptor, and the defendant, the drawer, to whom
the bill was shown, said that he was the executor of the acceptor, and requested the
holder to let it stand over a few days. It was objected that this did not constitute due
notice to the drawer, because knowledge was not notice ; but it was held to be suthcient.
During the argument, it was asked by counsel whether notice was necessary where the
drawer married the acceptor, between acceptance and maturity. Williams, J. replied
by asking how it would be if the holder employed the drawer to present. In Agan v.
M'Manus, 11 Johns. 180, the holder left the note in the indorser's hands, the indorser
being his attorney, to compel payment from the maker. A question arose as to
whether this constituted notice ; but it appeared that the holder had before called upon
the maker for payment, and had not given any notice of the refusal. Thompson, 0. J.
said : " It is evident, therefore, that, when the note was left with the defendant, it was
not intended as a notice of non-payment, or a demand of payment from the indorser ;
for it was left, as is stated, for the purpose of obtaining the money from the maker."

53*

G30 NOTES AND BILLS. [CH. XHL

excuse arising from want of funds may be an exception, but we
have seen that this depends upon a different and entirely distinct
principle. (c) It has also been frequently said, that notice to one
partner was notice to the firm, because the knowledge of one
was the knowledge of all. But we should prefer to consider this
rule, so far as relates to the law of notice of dishonor of nego-
tiable paper, as dependent, not upon knowledge, but upon the
identity of interest between each partner and the partner-
ship, making each member, so far as relates to notice, in fact
the firm.

It may likewise be laid down as a rule, equally universal with
the preceding one, that absence of injury from want of notice is
now no excuse for neglect,(tZ) and evidence to prove want of
injury is inadmissible. (e)

See the remarks of Duncan, J., Juniata Bank ik Hale, 16 S. & R. 157, 160. In Cory ».
Scott, 3 B. & Aid. 619, 622, Abbott, C. J., referring to Walwyn v. St. Quintin, 1 Bos.
& P. 652, said : " That decision which substituted knowledge for notice I have always

regretted As I have always thought that it would have been better never to

have considered knowledge as equivalent to notice, I cannot consent to carry the law
one step further."

(d) Bullet; J., in Bickerdike v. Bollman 1 T. R. 405, said : " On the second trial
of the cause of Tindal v. Brown, 1 T. R. 167, before me at Guildhall, the jury told me
they found their verdict for the plaintiff on the ground that it had not appeared from
the evidence that any injury had arisen to the party from want of notice. In conse-
quence of which, upon the subsequent trial, I told the jury that, when a bill was ac-
cepted, it was prima fade evidence that there were effects of the drawer in the hands of
the acceptor. The mistake of the jury on the former occasion had arisen from their
taking it for granted that the drawer had not been injured by the want of notice, be-
cause he had not proved it, whereas that proof lay on the plaintiff' to produce." In
Hill V. Martin, 12 Mart. La. 177, Porter, J. .said: "The plaintiffs read from Chitty,
p. 151, to show that, when the indorser was not injured by want of notice, the laches to
give it was cured. This rule is stated in a note to the edition of 1809, but it is not
law." See the remarks of Abbott, C. J., in Hill v. Heap, Dow. & R., N. P. 57.

(e) In Dennis v. Morrice, 3 Esp. 158, G'/6/).s, counsel for the ])laintiff, said : "The
principle upon which notice lias been held necessary to be given to the drawer is, that
he may receive a prejudice from the want of notice, as he might take his effects out of
the hands of the drawee; if, therefore, I can sliow that no prejudice whatever arose
to the drawer from the want of notice, that shall disj>ensc with tiie necessity of it. If
the plaintiff is not allowed to go into this kind of evidence, the drawer must hold the
money received from the payee as the consideration of the bill, without the ])ossibility
of its ever being recovered." But Lord Kew/on said : " I cannot hold the law to bo so.
The only case in which notice is dispen.scd with is where there arc no ellect* of the
drawer in the drawee's hand."?. This would l)e extending the rule still further tiian jver
lias liccn done, and opening new sources of litigation, in investigating whether in fact
the drawer did receive a prejudice from the want of notice or not." The evidence
was rejected, und the plaintiff nonsuited.

CH. XIII.] EXCUSES FOR WANT OF NOTICE. 631

As an illustration of the stringency of the rule, the holder in
one case attempted to excuse a failure to give notice of non-
acceptance to an indorser, on the ground that, two months be-
fore the bill should have been presented for acceptance, the
drawer had become insolvent, all his effects had been attached,
and he himself had absconded ; but notice was held neces-
sary. (/)

From an early case, it would appear, as we have intimated,
that originally the drawer was held, unless he could prove actual
injury by neglect or laches in giving notice. (^) It may be sup-
posed that after a while the mere lapse of time was considered
prima facie proof of injury, and that finally, owing to the diffi-
culty of proof in most instances, the rule was laid down strictly,
that notice is necessary whenever there is a possibility of in-
jury ; (A) and as there is scarcely any case in which it may
not be possible for injury to be received in some way from
want of notice, we may say that a failure to give it in the
proper manner is so entirely conclusive evidence of injury, that
absence of injury is entirely immaterial.

However strong an influence the matter of injury may have
had in the gradual formation of the law with respect to no-
tice, we tliink that now there is no connection between them,
and that this, as a reason, has entirely disappeared. Tlie only
exception to be urged against this conclusion is the sugges-
tion that has been made,(i) that a party who has no reason-

[f) May V. Coffin, 4 Mass. 341. In this case the counsel said: "All his property
was gone from him, and that even his body was not within the reach of legal process.
Of what conceivable use, then, could notice have been ? Certainly not to enable the
defendant to secure himself." So notice to an indorser was held necessary in Nash v.
Harrington, 2 Aiicens, 9, where the maker, an insolvent, was in prison for debt at the
maturity of the note, and had no attachable property.

(g) Meggadow v. Holt, 12 Mod. 15, decided in A. D. 1691, where the court said:
" The hiw of merchants in this case is, that if he who has such a bill lapse his time,
and do not protest, or make his request, if any accident iiappcn by this neglect, in
prejudice to the drawer, he hath lost iiis remedy against liim ; but if such a thing
had happened, it ought to have come of the other side, and not being so, wc must
judge on the declaration." Judgment was given for the jjlaintifF. This case is also
reported Mogadara v. Holt, in 1 Show. 294.

(h) Marshall, C. J., in French v. Bank of Columbia, 4 Cranch, 141, l.')4, said : " The
law requires this notice, not merely as an indemnity against actual injury, but as a
security against a possible injury, which may result from the laches of the holder of
the bill."

(i) Supra, p. 551, note c.

632 NOTES AND BILLS. [CH. XIH.

able grounds to expect that his bill will be honored, may still
object to what would otherwise be a perfect excuse for failure
to give due notice, by proving actual injury. But this we
have doubted, because a party can have no right to complain
that he has been injured by the direct consequence of his own
wrongful act. We have also expressed an opinion tliat the
doctrine relating to the excuse of want of funds proceeds upon
other principles or reasons than that of injury, (j) altliough
this has been freqiiently given as the reason. (^)

With respect to the pleading as regards notice it may be
observed, tliat objection to the want of it should be taken before
verdict, otherwise it will be taken for granted that due notice
has been given. (/)

(/) Siipia, p. 551.

{k) In Mechanics' Bank v. Griswold, 7 Wend. 165, 168, i\Wso;i, J. said : "Upon
the maxim that, when the reason for the rule of law does not exist, it ought not to be
applied, it has frequently been decided that, in cases wliere the non-payment by the
maker, and failure of notice to the indorser, cannot possibly operate to the injury of
the indorser, the omission will not discharge him." The judge then goes on to ex-
plain the various excuses for want of notice on this ground. Tliis same proposition
is laid down more emphatically by Cowen, J., in Commercial Bank v. Hughes, 17
Wend. 94, 97, who said : " Formerly it was necessary, in order to complete the de-
fence, that the drawer should prove damage to himself arising from tlie holder's
laches ; but now it will be presumed. Yet the presumption is not conclusive. If it
appear in truth that no damage could arise, the necessity for presentment or notice
does not exist We certainly have a very strong current of autliority for say-
ing that, where tlie indorser or drawer has plainly suffered notliing, and can sustain
no miscliief for want of demand and notice, none need be made or given ; and it
accords with the true and only reason why such demand and notice are called for.
The question seems merely to be one of evidence. The drawer or indorser is pre-
sumed to have been injured by the omission, until the plaintiff, by proof on his side,
remove all chance of damage." It would seem, from the facts of the case, that the
judge was inclined to the opinion that, where the drawer of a bill liad himself re-
ceived the amount, as by getting it discounted, he would not be entitled to notice.
There is a dictum of Thompson, C. J., in Agan v. M'Manus, 11 Johns. 180, 181,
somewhat to the samx; effect. But this is opposed to the case of Dennis v. Morrice,
3 Esp. 158, sujira, p. 630, note e, and cannot, we think, be supported. We should also
dissent from the principle as laid down by Mr. Justice Coiven.

(I) Cornwall v. Gould, 4 Pick. 444.

CH. XIV "1 PROTKST. 633

CHAPTER XIV.

OF PROTEST AND OF RE-EXCHANGE.

SECTION I.

OF PROTEST.

When negotiable paper is protested, the protest is made before
a notary public, (w) if there be such an officer within reach. If
not, it is said that it may be made before any respectable inhab-
itant of the place, before two proper witnesses. (w)

(m) The origin of tne term notary is traced as far back as the ancient Roman Re-
public, wl-.en the term noiurius was applied to a person who was occupied in taking
down the words of a speaker in notes or writing [notuE). The notarii were short-hand
writers, and that they used symbols of abbreviation is clear from many passages of an-
cient writers ; tiie persons employed in this service were often slaves. But tiie function>
of the modern notary public were doubtless derived from a class of public ofHcers, men-
tioned under the later Roman law by the name of tubelliones, whose business it was to
draw up contracts, wills, and other legal instruments to be presented to the courts of
law, or other authorities of state. To make these documents legal evidence for judi-
cial purposes, it was at length found necessary to require by law that they should be
attested by witnesses, and that the notary [tahc.Uio) should be present in person at the
drawing up of the document, and also should affix his signature and the date of the
execution. Under the Frankish kings, officers exercising similar functions were called
cancellarii and notarii. In England, notaries appear to have been known as public
officers before the Norman conquest. Spelman cites some charters of Edward the
Confessor as being executed for the king's chancellor by notaries (Gloss., Tit. Notariiis).
It is certain that they were employed at a very early period to attest and authenticate
instruments of moment and solemnity. They arc mentioned in the statute of 27 Edw.
III. c. 1. It is generally supposed that the power of admitting notaries to practice was
vested in the Archbishop of Canterbury by 2.5 Hen. VIII. c. 21, § 4.

[n] Baylcy on Bills, c. 7, ^ 2 ; Chitty on Bills, p. 333. In Burke v. McKaj', 2
How. 66, Storij, J. said that, in many cases, even with regard to foreign bills of ex-
change, the protest may, in the absence of a notary, be made by other functionaries, and
even by merchants. See also Read v. Bank of Kentucky, 1 T. B. Mon. 91, in which
case it was held that it was no objection that a note held by a bank was protested, in
the absence of a notary, by a private person who was a stockholder in the bank, it be-
•ng sufficient that the witnesses wore disinterested. It is not necessary for the witnesses
m such case to subscribe their names. It was further held in this case, that a private
individual has no right to charge fees for protesting. It is held, however, that a no-

63-4 NOTES AND BILLS. [CH. XIV.

A notary public is a public officer, recognized as such all over
Ihe commercial world. The instrument of appointment now in
use in England declares that full faith be given, " as well in
judgment as thereout," to the instruments by him to be made ;
and language of the same meaning is sometimes used in com-
missions to notaries in the United States.

Very great importance has always been attached to the attesta-
tion of a notary public, (o) He is considered as receiving and
noting the evidence or statements brought before him ; " to pro-
test," signifying literally " to testify before." He is regularly
appointed and commissioned, and has his seal, which must be
affixed to his official documents, (j?)

tary who is a stockholder of a bank cannot make an admissible protest of a note for
the bank. Herkimer County Bank v. Cox, 21 Wend. 119 ; Bank v. Porter, 2 Watts,
141. Mr. Brooke, in his treatise on the office and practice of a notary of England, says
it does not appear that there is an usage, in the case of a protest of a foreign bill by
a private inhabitant of the place, to require any witnesses to such protest, p. 103.
In case of inland bills, it is required by the statute 9 & 10 William III. c. 17, that
the protest by a private person be made in the presence of two or more credible
witnesses. See also stat. 3 & 4 Anne, c. 9, §§ 6, 9. It is provided by the commercial
code of France that all protests for non-acceptance or non-payment shall be made
by two notaries, or by one notary and two witnesses, or by a bailiff and two witnesses.
Art. 173.

(o) It is stated in Burn's Ecclesiastical Law, 9th ed., Vol. III. p. 11, that " one notary
public is sufficient for tlie exemplification of any act ; no matter requiring more thau
one notary to attest it " ; and the rule of the canon law as to the credit of a notary is unu3
notarius icqui pallet duobus testihus. Mr. Brooke tliinks it not improbable that Massingcr,
the dramatist, was satirically alluding to some such rule, when, in the drama of the
"New Way to Pay Old Debts," written before 163.3, Sir Giles Overreach declares, —

" Besides, I know thou art

A public notary, and suoh stand in law

For a dozen witnes.scs."

Brooke's Notary, chap. 1 ; Burn's Ecclesiastical Law, Vol. III., Tit. Not. Pub.

(p) It is everywhere held, that it is a sufficient authentication of a protest made in a
foreign country or state, that it purports to be, and apjjarcntly is, under tiie seal of a
notary. Anonymous, 12 Mod. 345; Chitty on Bills, G5.') ; Townsley v. Sumrall, 2
Pet. 170; Ilailiday v. McDougall, 20 Wend. 81 ; Carters. Burley,9 N. H. .5.5S; Crow-
ley ». Barry, 4 Gill, 194 ; Bank of Kochcster v. Gray, 2 Hill, 227 ; Wells i-. Whitehead,
15 Wend. 527 ; Kirksey ?;. Bates, 7 Port. Ala. 529 ; Fleming r. M'Clure, 1 Brcv. 428;
Bryden i^. Taylor, 2 Harris & J. 390 ; Chase v. Taylor, 4 id. 54; Nicholls c. Webb, 8
Wheat. 320 ; Las Caygas ?;. Larionda, 4 Mart. La. 283 ; Boss r. Bedell, 5 Duer, 462.
But if the protest is not made by a notary, or is not under seal, there must he evidence
of the official character of the officer, and of the laws of the state or country where it
was made, showing that it was duly made according to the laws tiicrc existing. Per
Parker, C. J., in Carter v. Burley, 9 N. H. 558, 568 ; Chanoinc v. Fowler, 3 Wend.
173 ; Bank of Kochcster v. Gray, 2 Hill, 227. And of course where a seal to the pro-
test is required by the law of the State where it is made, a protest without tlic .seal uiU

CH. XIV.] PBOTEST. 635

In tliG case of foreign bills, protested in a country other than
that in which the suit is brought, full faith and credit are
given to the instrument of protest ; and the original, or a duly
certified copy, are admissible in evidence of the acts therein
stated, so far as these acts are within the scope of a notary's
official duty.((^) In the case of inland bills, and even foreign
bills which are protested in the country where suit is brought,
the protest is not admissible in evidence, (r) unless the notary
has deceased since the protest was made. (5) In many of our
States, however, this whole subject is regulated by statute. (^)

not be received in evidence as such. Tickner v. Roberts, 11 La. 14. It was held,
however, in Lambeth v. Caldwell, 1 Rob. La. 61, that the want of a seal to the cer-
tificate of a notary was no objection to its admission in evidence as proof of notice to
tlie indorsers of a note upon which the action was brought. It was said in that case,
that there was no law requiring a notary to furnish himself with a seal. So also, in an
early case in Kentucky, it was held that a notary's certificate of a protest was sufficient,
under the statutes of that State, without a seal ; and the court seemed to be of tho
opinion that such a seal was not required by the law merchant. Bank of Kentucky v.
Pursley, -3 T. B. Mon 2.38. As to the sufficiency of a notarial seal, it is held that one
stamped upon paper of sufficient tenacity to retain the impression is all that is required
by the strictest rules of the common law. Ross v. Bedell, 5 Duer, 462 ; Carter v.
Barley, 9 N. H. 5.58; Bank of Manchester v. Slason, 13 Vt. 334 ; Connolly ». Good-
win, 5 Calif. 220. But see Bank of Rochester v. Gray, 2 Hill, 227. See Kirksey v.
Bates, 7 Port. Ala. .529, as to the requisitions of notarial seal under the statute of the
State. But a scrawl is not a sufficient authentication, except in States where a scrawl
or " Locus sigilli" is generally held to be the equivalent to a seal. Semhle per Parker,
C. J., in Carter v. Burley, 9 N. H. 588, supra, p. 634, note p.

{(]) Townsley v. Sumrall, 2 Pet. 170, 178 ; Bryden v. Taylor, 2 Harris & J. 396.

(r) Nicholls v. Webb, 8 Wheat. 326, diclum ; Chesmer v. Noyes, 4 Camp. 129.

(s) Nicholls V. Webb, 8 Wheat. 326.

(t) Tliis is a matter of statutory regulation in many of the States. In New Hamp«
shire it is provided that " the protest of any bill of exchange, note, or order, duly cer-
tified by any notary public, under his hand and official seal, shall be evidence of tho
flxcts stated in such protest, and of the notice given to the drawer or drawers." Comp.
Stats. 1853, p. 70, § 3. This statute is he'd to apply to protests of both foreign and
domestic bills, and whether made by a notary resident in the State or elsewhere. The
protest is only prima facie evidence of the facts stated, including the notice. Where
the notary certified that he duly gave notice to the indorsers, without reciting what was
done to give notice, the notice must be regarded prima facie to have been personal and
actually given ; and the insertion of the word duli/ does not vitiate the protest, on the
ground that it is a conclusion of law. These points are decided in the late case of Rush-
worth V. Moore, 36 N. H. 188. The same points in regard to notice were decided in
the same way in a recent case in Maine, Ticonic Bank v. Stackpolc, 41 Maine, 321, in
wnich State the same statutory provision existed until recently, it being omitted in
the late revision of 1857. See R. S. of 1840, c. 44, § 12. Under that statute it was
held that the certificate was not conclusive evidence of the facts stated as to the giving
of notice. Bradley v. Davis, 26 Maine, 45. See Loud v. Merrill, 45 Maine, 516, 521.
By the Revised Statutes of Maine of 1857, p. 273, § 4, it is provided in general terms

686 NOTES AND BILLS. [CH. XIV.

But while the protests or certificates of protest of a notary

that all copies or certificates granted by a notary, under his hand and notarial seal,
shall be received as legal evidence of such transactions and of all the fiicts therein con-
tained.

In Connecticut, it is provided that protests of inland bills of exchange, and promis-
sory notes protested without the State, shall be admitted as prima facie evidence of the
facts therein stated. Compilation of Stats. 1854, p. 9-3, ^ 128.

In New York, Wisconsin, and California, it is provided that the certificate of a notary,
under his hand and seal of office, of the presentment by him of any promissory note or
bill of exchange for acceptance or payment, and of any protest of such bill or note for
non-acceptance or non-payment, and of the service of notice thereof, specifying the
mode of giving such notice, and the reputed place of residence of the party to whom
the same was given, and the post-office nearest thereto, shall be presumptive evidence
of the facts contained in such certificate. But in New York it is provided that tliis pre-
sumption sliall not apply to any case in which the defendant shall annex to his plea an
affidavit denying the fact of having received notice of non-acceptance or non-payment
of such bill or note ; nor to any case of a protest of an inland bill of exchange or of a
promissory note made by any notary of that State, except in case of the death, insan-
ity, or absence of the notary, so that his personal attendance or his testimony cannot be
procured.

In New York and Wisconsin, it is furtlicr provided that any note or memorandum,
made and signed by the notary at the foot of the protest or in a record, shall in the
same way be presumptive evidence of notice sent ; and in California it is provided that
a certificate of a notary public, drawn from his record, stating the protest and the facts
therein contained, shall be evidence of the facts in like manner as the original protest.
See R. S. of N. Y., 4th ed.. Vol. II. pp. 470, 471, §§ 33-36; R. S. of Wis. 1858, c
12, §§ 4, 6 ; Woods's Dig. of the Laws of Cal, 1858, p. 554, Art. 2848. Under these
statutes it is not necessary to state the form of the notice given, McFarland v. Pico,
8 Calif. 626 ; nor the hour of presentment, Cayuga Co. Bank v. Hunt, 2 Hill, 635.
The statute of New York, making notarial certificates evidence, applies only to pro-
tests made within the State by notaries of that State. Kirtland v. Wanzer, 2 Duer,
278 ; Bank of Rochester v. Gray, 2 Hill, 227 ; dictum of Harris, J. to the contrary, in
Bank of Vergennes v. Cameron, 7 Barb 143. And the provision making the mem-
orandum evidence of notice does not extend to a statement of tlie presentment and
demand of a note or bill. Otsego Co. Bank v. Warren, 18 Barb. 290.

In Pennsylvania, by an act passed 14th December, 1854, the protests of all notaries
public, certified, according to law, under their hands and seals of office, in respect to
the dishonor of all bills of exchange and promissory notes, and notice thereof, may bo
received and read in evidence as proof of the facts therein stated ; and in Ohio the
instrument of protest of any notary public appointed and qualified under the laws of
that State, or the laws of any other State or Territory of the United States, accom-
panying any bill of exchange or promissory note wliich has been i)rotestcd for non-
acceptance or non-payment by such notary, shall be held and received as prima facie
evidence of the facts therein certified. But in both Pennsylvania and Ohio it is pro-
vided that any party may be permitted to contradict by other evidence i\ny such certifi-
cate. See Purdon's Dig. 1857, j). 1138; R. S of Ohio, 1854, c. 7.5, ^ 6.

The notarial certificate of protest is evidence of the facts therein set forth, although
the notary, when examined, lias no recollection of them ; for the statute makes the
certificate sufficient evidence of the facts therein certified, in the absence of contradictory
proof. Shcrer v. Easton Bank, 33 Penn. State, 134.

OH. XIV.] PROTEST. 637

public are admitted in evidence, and this evidence is entitled to

In Maryland, Virginia, North Carolina, Tennessee, and Iowa, it is provided, in sub-
stance, that a |)rotcst duly made by a notary public of a bill of" exchange, whether for-
eign or inland, for non-acceptance or non-payment, or of a promissory note for non-
payment, shall be jorma yucj'e evidence of such non-payment or non-acceptance, and
that presentment was made and notice given in the manner stated. Dorsey's Laws of
Md., Vol. II. p. 12.')7, c. 253, Act of 1837 ; Graham v. Sangston, 1 Md. 59; Code of Va.
1849, c. 144, § 7 ; R. Code of N. Car. 1854, c. 13, ^ 9 ; Code of Tcnn. 1858, H 1"99,
1800; Code of Iowa, 1851, § 2414. In Tennessee, it is further provided, that, after the
notary's death, his record of notice of dishonor shall be prima facie evidence of the fact.
Code, supra, ^ 1801.

The design of the statute of Maryland, as to the mode of proof of demand and
notice, was to place foreign and inland bills upon the same footing, and, as regarded
inland bills and notes, to dispense with the necessity of adducing oral proof of demand
and notice, by substituting therefor the protest of the notary ; and the protest is suffi-
cient in form, if it states in substance a denuind and notice. Per Archer, C. J., in
Barry v. Crowley, 4 Gill, 194.

In Michigan, notaries public are empowered to demand acceptance of foreign and
inland bills of exchange and promissory notes, and to protest the same ; and his certifi-
cate, under his hand and seal, of the official acts done by him is made presumptivo
evidence of the facts contained in it ; but such certificate is not notice of non-accept-
ance or non-payment in any case in which a defendant shall annex to his plea an
affidavit denying the fact of having received such notice. Compiled Laws of 1857,
Vol- L Chap. X. §§ 112, 113.

In Minnesota, it is made the duty of a notary, in protesting bills and notes, to give
notice of protest, and to certify, in the instrument of protest, the time and manner of
the service of such notice ; and the protest of any notary public, appointed under the
laws of that State, or the laws of any other State or Territory of the United States, is
made prima facie evidence of the facts therein certified, provided that any party may
contradict by other evidence such certificate. The record of the protest, or a certified
copy of the record, is made evidence in the same way. Compiled Statutes of 1859,
p. 134, §§ 5, 6.

In Indiana, the official certificate of a notary public, attested by his seal, are pre-
sumptive evidence of the facts therein stated, in cases where, by law, he is authorized
to certify such facts ; and he is authorized to do all such acts which, by common law
and the custom of merchants, a notary is authorized to do. R. S. 1852, Vol. I. p. 378.
c. 76, §§ 5, 6. Another statute in similar terms declares that the certificates or instru-
ments purporting to be the official act of a notary public of that State, or of any other
State or Territory of the United States, and purporting to be under the seal and signa-
ture of such notary, shall be received as presumptive evidence of the official character
of such instrument, and of the fiicts therein set forth. Id., Vol. II. p 91, § 281.
Under these statutes it is lield that a protest of a promissory note, with a certificate of
notice made by a notary of another State, is admissible evidence, without proof of its
execution. Shanklin v. Cooper, 8 Blackf. 41. This decision was affirmed in Turner
V. Rogers, 8 Ind. 139, where it was held, that, so far as presentment, demand of pay-
ment, and the transmitting of notice are concerned, the protest of a promissory note in
such case is evidence; and the court say, that the universal practice of the commercial
community indicates the propriety of this rule. So in case of a bill of exchange.
Oickerson v. Turner, 12 Ind. 223.

In South Carolina, it is provided that, where the notary who has made protest of any

VOL. I. 54

638 NOTES AND BILLS. [CH. XIV.

much weight, it is, however, open to rebutter. The truth of the

inland bill or promissory note is dead, or resides out of the district in which such note
or bill is sued, his protest shall be received as sufficient evidence of notice in any action
against any parties to the bill or note. Statutes at Large, Vol. VI. p. 182.

In Georgia, certificate and protest by notaries public, under tlieir hand and seal, for the
non-acceptance of any bill of exchange, or for the non-payment thereof, or of any note,
are prima facie evidence of the focts therein stated ; provided that either party may
have the benefit of the testimony of such notary if necessary, and provided that either
a copy or the original of such protest is filed in court. Cobb's New Dig. 1851, VoL I.
p. 273, § 27.

In Kentucky, it is declared that the notarial protest, under seal, of the non-acceptance
or non-payment of a bill, shall be evidence of its dishonor; but the protest mav bo
disproved. R. S. 1852, p. 194, § 12.

In Arkansas, it is declared that a protest made by a notary public, under his hand
and seal of office, shall be allowed as evidence of the facts therein contained. Dig. of
Stats. 1858, c. 25, § 12. Under this statute it is held that the certificate of a notary
who protested a bill, that he forwarded due notice of protest, though under his notarial
seal, is no evidence of the fact. Real Estate Bank v. Bizzell, 4 Ark. 189. There
must be actual proof of notice, according to the law merchant. Sullivan v. Deadman,
19 Ark. 484.

In Missouri, a notarial protest is evidence of a demand and refusal to pay a bill of
exchange, or negotiable promissory note, at the time and in the manner stated in such
protest. R. S. 1855, Vol. I. p. 298, c. 18, § 20.

In Illinois, it is made the duty of notaries public to protest bills and notes, and to
give notice of the dishonor of the same ; and to keep a correct record of all such
notices, and of the time and manner in which the same have been served, of the
names of the persons to whom directed, and of the description and amount of the
instrument protested, which record is competent evidence to prove such notice. Com-
piled Statutes of 1858, Vol. II. p. 795, ^§ 4, 5.

In New Jersey, notaries are required, upon protesting any foreign or inland bill or
promissory note, to record the time and place of the demand, and upon whom it was
made, with a copy of the notice sent, how it was served, and when, and if sent, in what
manner, to whom, and where, and when put into the post-office. Upon the death or
absence of the notary, this record, or a certified copy thereof, is competent evidence of
the matters contained in such record. Nixon's Dig. 1855, p. 668, §§ 6, 7, 8.

In Mississippi, it is the duty of notaries public to make a record of all tlicir proceed-
ings in relation to the protest of any bill or note, of whom, when, and where the
demand was made, and of the notice given, and in what manner; and such record, or
a copy of the .same, verified by oath, is competent evidence of the facts therein stated
touching the dishonor of such bill or note. Rev. Code, 1857, pp. 413, 519.

In Louisiana, it is the duty of notaries to keep a record of protests of bills and notes,
of the notices given by them, the date of the notices, and the maimer in wliich they
were served or forwarded, which record is legal proof of the notices. Notaries are also
authorized to make mention of the maimer and circumstances of the demand in their
protests, and by certificates added thereto to state the manner in which any notices of
protest were served or forwarded ; and, whenever they shall have so done, a certified
copy of such protest and certificate is evidence of all matters therein stated. R. S.
1856, p. 45, §5 8, 9.

In Tcxa^, liie holders of any bill of exchange or jiromissory note may fix the liabil-
ity of any drawer or indorser of the bill or indorser of the note, without any protest or

CH. XIV.] PROTEST. 639

certificate may be disproved by evidence. (w) And the certifi-
cate is not itself even evidence of collateral facts. Thns a
statement that the drawer refused to accept because he had no
funds, is no evidence whatever of want of funds. (y) And even
where the statute of the State made the certificate of protest
evidence of all the matters it contains, and such a certificate
stated that the drawee expressed his willingness to pay the bill
in bank-notes of a particular description, it was held that this
was no evidence of such acknowledgment. (?«;)

So a recital, in a foreign notarial certificate, that the notary
had served the protest on tlie acceptor, in his own name, and as
agent of the drawer, is no evidence of the agency in an action
against the drawer, (.•r)

It has, however, been held, not only that the notarial certifi-
cate is prima facie evidence that the demand was duly made of
the principal party, where it stated that the demand was made ;
but also, where it stated that the demand was made of an " at-
torney in fact," or of a clerk of the acceptor or maker, that it
was prima facie evidence that the attorney or agent was prop-
erly authorized to receive the demand and refuse payment. (//)

If paper be made, or drawn, or accepted, or indorsed in one

notice, by instituting a suit against the acceptor of the bill or maker of the note at
the next term of the District Court. And so in case of the non-acceptance. But
instead of this, protest may be made of the bill or note ; upon wiiich it is the duty
of the notary to give notice thereof, and to note in his protest and notarial record on
whom, when, and how the notice was served ; and such protest, or a copy of the rec-
ord, under his hand and seal, is evidence of the facts therein set forth. Oldham and
White's Dig. 1859, p. 52, Arts. 94, 96, 97, 98. The provision which dispenses with
protest and notice also dispenses with a demand. Sydnor v. Gascoigne, 1 1 Texas, 449.

[u] The truth of the statements in the certificates may be disproved. Gardner v.
Bank of Tennessee, 1 Swan, 420 ; Union Bank i'. Fowlkcs, 2 Sneed, 555. In Ricketts
V. Pendleton, 14 Md. 320, it was declared that, although the certificate of the notary is
made, by the act of 1837, prima facie evidence, yet, like all other evidence, it must be
submitted to the jury, and passed upon by them. Such, no doubt, would be the ruling
of the courts in the United States generally, and wo should say universally.

(v) Dumont v. Pope, 7 Blackf. 367.

(w) Maccoun v. Atchafalaya Bank, 13 La. 342.

\x) Coleman v. Smith, 26 Penn. State, 255.

(y) Phillips V. Poindexter, 18 Ala. 579 ; Stainback v. Bank of Virginia. 11 Gratt
260. And so in Whaley v. Houston, 12 La. Ann. 585, a notary having certified that ho
•' had presented the draft to a clerk of the drawees at their ofiSce, said drawees not being
in, and demanded acceptance thereof, and was answered that the same would not be
accepted " it was held that this was a suflScient presentment, the defendants being mer-
chants having a counting-room in New Orleans.

640 NOTES AND BILLS. [CH. XIV.

country, and be payable in another, the question whether de-
mand and protest must be made, and notice given according to
the law of the place where the paper is payable, or according
to that where the signatures are made, has been much dis-
cussed, and may not now be certain. We think the true rule is
this. It being determined at wliat time the paper is mature
and payable, then the protest should be made by the law of
the place ivhere the paper is payable, and therefore ivliere the
protest is to be made. And the manner of making the demand
and protest must be governed by the same law. Then as to the
notice, this should be given by the notary making the protest,
and may be given by him according to the law which governs
his proceedings, or the law of his own place, or the place where
the paper is payable. If, however, distant parties (wlio may
receive their notice from the notary) transmit notice according
to the law of the place of their residence, in which tliey put
their names to the paper, this notice would be sufficient. And
if the notary himself, knowing the law of the foreign country to
which lie sends notice to persons who there become parties to
the paper, should conform to that law, we should say that the
notice would be sufficient. (2:)

(s) Carter v. Union Bank, 7 Humph. 548 ; Bank of Rochester v. Gray, 2 Hill,
227 ; Ellis v. Commercial Bank of Natciiez, 7 How. Miss. 294 ; Carter v. Barley,
9 N. H. 5.i8 ; Onondaga Co. Bank v. Bates, 3 Hill, 53; Grafton Bank v. Moore, 14
N. H. 142; Ross v. Budell, 5 Duer, 462; Shankliii v. Cooper, 8 Blackf 41 ; Turner r.
Rogers, 8 Ind. 139 ; Chitty on Bills, 333. "By the common law," says Story, "the
protest is to be made at the time, in the manner, and by the persons prescribed, in
the place wliere the bill is payable. But as to the necessity of makinj.^ a demand and
protest, and the circumstances under which notice may be required or dis])enscd with,
these are incidents of the original contract, which are governed by the law of tlie place
where the bill is drawn. They constitute implied conditions, upon which the liability
of the drawer is to attach, according to the lex loci contractus." Conflict of Laws, ^ 360.
A recent English writer upon the conflict of laws, Mr. Westlakc, says : " I cinnot
altogether agree with this doctrine. There is, no doubt, a sound distinction between
the events on the occurrence of which the drawer or indorser undertakes to pay, and
the notice given to him of their occurrence ; but the making a demand and jirotcst,
when ncccssiK-y by the law of the place of payment, sliould, I think, rank among the
former no less than the dishonor itself; since, if these formalities be omitted, the drawer
may be impeded in the exercise of his remedies against the acceptor. Besides, if the
necessity of demand and protest were determined by difTcrent laws for tlie drawer and
tlie several indorsers, it might easily happen that one of those parties was made liable,
without iieing able to recover over from a previous one." The same author thinks
that Story has given elsewhere a more correct statement of the rule, — in his Conflict
of Laws, § 260. " But the suflliciency of the notice after completion of the protest, if

CH. XIV.] PROTEST. 641

We have said that the demand may perliaps be made by a
duly authorized clerk of the notary. But the usual way is for
the notary to present the bill himself. And the authorities in-
dicate that he must do so to make his certificate valid. (a)

any, may well be tested by the law of the place of drawing or indorsing, as a condition
implied in the contract, and which a regard for the contractor's own security docs not
refer to any other law." Westlakc on Private International Law, Art. 225. The
latter point, that the sufficiency of notice is governed by the law of the place of draw-
ing or indorsing, is expressly held in the case of Cook v. Litchfield, 5 Seld. 279, 290.
Contra, see Rothschild v. Currie, 1 Q. B. 43, which was an action on the dishonor of a
bill drawn in England on a French iiousc, and made payable in France, where it was
protested. The defendant had indorsed the bill in England ; and it was held that it
was snfKcient that he had received such notice of the dishonor and protest as was
required by the law of France. Sec Allen v. Kemble, 6 Moore, P. C. 314. Shanklin
V. Cooper, 8 Blackf. 41, is in accordance with Rothschild v. Currie.

(a) The authorities generally indicate that the protest must be made by the notary
himself, and not by his clerk or agent. Leftley v. Mills, 4 T. R. 170 ; Bayley on Bills,
210; Chitty on Bills, 459; Sacrider v. Brown, 3 McLean, 481 ; Chenowith v. Cham-
berlin, 6 B. Mon. 60 ; Bank of Kentucky v. Garey, id. 626 ; Carter v. Union Bank, 7
Humph. 548 ; Carmichael v. Bank of Pennsylvania, 4 How. Miss. 567 ; State Bank of
Indiana v. Hayes, 3 Ind. 400 ; Onondaga Co Bank v. Bates, 3 Hill, 53. In the latter
case the notarial certificate of protsst stated that the officer caused the note to be pre-
sented, &c. Nelson, C. J., delivering the opinion of the court, said, that the fair inference
to be drawn from the language of the certificate was, that the note was presented by
the clerk of the notary, or some third person ; and he held that the duties of a notary
in presenting notes and bills could not be thus delegated, and that the certificate was
insufficient. This decision was affirmed in Hunt v. Maybce, 3 Seld. 266, and also in
Warnick v. Crane, 4 Denio, 460. See also Stewart v. Allison, 6 S. & R 324 ; Ellis
V. Commercial Bank of Natchez, 7 How. Miss. 294 ; Sheldon v. Benham, 4 Hill, 129.
Where it was in proof that the clerk of the notary made the demand, and the protest
stated that the notary himself made it. the protest was held inadmissible, becau.se false.
In this case the clerk demanded, and in his deposition declared that he made the demand
and the notary made the protest. Held no sufficient evidence of a legal demand. Smith
V. Gibbs, 2 Smedes & M. 479. In Nelson v. Fotterall, 7 Leigh, 179, this question was
examined at length, and the opinion expressed that a demand by a clerk of a notary is
regular. See Atwell v. Grant, 11 Md. 101. Mr.vChitty remarks, that the observation of
Buller, J., in Leftley v. Mills, 4 T. R. 1 70, that the nmary must make the demand in per-
son, was a mere dictum, as far as relates to the custom of^ierchants or to foreign bills, for
the case arose upon an inland bill, under the statute 9 >&. 10 Wm. Ill , allowing such
protest; and he further remarks, that the practice of notaries in London and Liverpool
appears to be in direct opposition to the supposed necessity for the notary himself de-
manding payment. A correspondence took place upon this subject, ■\yhich is stated in
Mr. Chitty's work on Bills, p. 459. That it is sufficient for the clerk of the notary
to make the presentment is fmplied in Poole v. Dicas, 1 Bing. N. C. 649, 1 Scott,
600, in the Court of Common Picas, although the point was not directly before the
court. See Sutton v. Gregory, Peake, Add. Cas. 150, where evidence of an entry in a
notary's book by a clerk since deceased was admitted to prove the presentment of the
bill. In Wilkins v. Jadis, 2 B. & Ad. 188; in Garnett v. Woodcock, 1 Stark. N. P.
475, 6 Maule & S. 44 ; in Triggs v. Newnham, 1 Car. & P. 631, 10 Moore, 249 ; and in

Vol. I.— 2 Q 54 *

642 NOTES AND BILLS. [CH. XIV.

Pj-otest is necessary, by the universal law merchant, in the
case of foreign bills. (6) It has, indeed, been distinctly asserted
that it is the only legal evidence of notice in case of the dis-
honor of a foreign bill.(c) In this respect, our States would
undoubtedly be considered as foreign to each other, (c?) And

Philpott V. Bryant, 3 Car. & P. 244, the plaintiff recovered, on the evidence of the
presentment by the clerks of the notaries, this point not being raised. Mr. Brooke de-
clares his knowledge of the custom of presentment by notaries' clerks for more than
forty years, and he gives an extended correspondence with notaries and business men
in England, which is to the same effect (Notary, Appendi.x No. 14). A distinction
has been taken in some cases between a presentation by a clerk of a notary and one by
his deputy ; and where, as in New Orleans, the notary is authorized by law to employ
a sworn deputy to assist liim, a protest by the deputy is good, he being clothed by the
appointment with an official character, in the same manner as a deputy under a sheriff.
Bank of Kentucky v. Garey, 6 B. Mon. 626 ; Chenowith v. Chamberlin, id. 60; Carter
V. Union Bank, 7 Humph. 548. Tlie notaries of New Orleans are autliori/ed to ap-
point one or more deputies to assist them in making protests and delivering notices.
R. S. 1856, p. 391, § 19. See also McClane v. Fitch, 4 B. Mon. 599. In Burke i'.
McKay, 2 How. 66, 72, Story, J. said, that " where, as in Mississippi, a justice of the
peace is authorized by positive law to perform the functions and duties of a notarj',
there is no ground to say that his act of protest is not equally valid with tliat of a
notary. Quoad hoc, he acts as a notary." See also Bailey v. Dozier, 6 How. 23, 29.

{h) Although a protest is a mere matter of form, it has become, by tl>e custom of
mercliants, a " part of the constitution " of a foreign bill. Per Holt, C. J., in Borough
V. Perkins, 1 Salk. 131, 2 Ld. Raym. 992, 6 Mod. 80. See Gale v. Walsh, 5 T. R.
239 ; Orr v. Maginnis, 7 East, 359.

(c) Per Lord Mansfield, in Salomons v. Stavely, 3 Doug. 298. Noting for non-
acceptance without protest is not sufficient. Rogers v. Stevens, 2 T. R. 713, though
there be a subsequent protest for non-payment. Id., and Orr xi. Maginnis, 7 East, 359.
So indispensable is this formal notice of the non-acceptance or non-payment of a for-
eign bill of exchange, that no other evidence will supply the place of it, and no part of
the facts requisite to the protest can be proved aliunde. Carter v. Union Bank, 7
Humph. 548 ; Gardner v. Bank of Tennessee, 1 Swan, 420 ; Union Bank v. Hyde, 6
Wheat. 572. But notice of dislionor may be proved indci)cndently of the notarial act.
Bank at Decatur )'. Hodges, 9 Ala. 631. And at common law, it is said that this is
the only way of proving notice. Rives v. Parmlcy, IS Ala. 256 ; Williams v. Putnam,
14 N. II. 540. In France, a protest is essential in case of the dishonor of inland as
well as foreign bills, and of promissory notes. Trimbey v Vignier, I Bing. N. C. 151,
4 Mooro & S. 695; Chitty on Bills, 170. And so in Scotland and the commercial
nations of Continental Europe a protest is indispensable upon the dishonor of inland
bills and promissory notes, and in this respect they arc not distinguished from foreign
bills. Thomson on Bills, c. 6, § 2, pp. 442, 443, 2d ed ; Pardcs. Droit Comm., Tom.
2, Art. 479, 480 ; Story on Xotes, ^ 298 ; Commercial Code of France, Art. 187.

(d) This is now well established. Buckner v. Finlcy, 2 Pet. 586 ; Dickins v. Beal,
10 id. 572 ; Bank of U. S. ». Daniel, 12 id. 32, 54 ; Lonsdale v. Brown, 4 Wash. C. C.
86; PlKJcnix Bank v. Hussey, 12 Pick. 483 ; Brown v. Ferguson, 4 Leigh, 37 ; Rico v.
Hogan, 8 Dana, 133; Halliday v. McDougall, 20 Wend. 81 ; Wells v. Whitehead, 15
Wend. 527 ; Carter v. Burley, 9 N. H. 558 ; Grafton Bank v. Moore, 14 N. H. 142;
Duncan v. Course, 1 Const. R. 100: Abom v. Bosworth, 1 R. I 401 ; Ticonic Bank

CH. XIV.] PROTEST. 643

this would be held, not only when the drawer and drawee were
in different States, but when both resided in the same State, and
the bill was payable in another, (e) In some of our States, pro-
test of an inland bill is made necessary by statute, for the
recovery of damages. (/) But otherwise protest of inland bills
and promissory notes is not known to the \sLW.{g') It is, how-

V. Stackpole, 41 Miiine, 302 ; llobinson v. Johnson, 1 Misso. 434. In accordance with
these iiuthorities is the doctrine of Da Costa v. Cole, Skin. 272, pi. 1, that a bill drawn
in Ireland upon Enj^land is to be considered as a foreign bill. See also Chaters v.
Bell, 4 Esp. 48 ; Mahoney v. Ashlin, 2 B. & Ad. 478. On the same principle it is
considered necessary, and it is the custom, to protest bills drawn in Scotland or the
Isle of Man upon England. Brooke's Notary, 177.

(e) The argument from convenience is as strong in one case as in the other. Grafton
Bank v. Moore, 14 N. H. 142 ; Freeman's Bank v. Perkins, 18 Maine, 292.

{/) See supra, p. 635, note t.

(<)) That a protest of an inland bill is not required by the law merchant, see Union
Bank w. Hyde, 6 Wheat. 572 ; NichoUs v. Webb, 8 id. 326 ; Young v. Bryan, 6 id. 146;
Bailey v. Dozier, 6 How. 23 ; Smith v. Little, 10 N. H. 532; Taylor v. Bank of Illi-
nois, 7 T. B. Mon. 576 ; Bank of U. S. v. Leathers, 10 B. Mon. 64 ; Lawrence r. Ral-
ston, 3 Bibb, 102; Murry v. Clayborn, 2 id. 300; Turner v. Greenwood, 4 Eng. Ark.
44 : Hubbard v. Troy, 2 Ired. 134 ; McMurchey v. Robinson, 10 Ohio, 496.

In England, a protest on inland bills of a certain description was allowed by statute
of 9 & 10 William III. c. 17, and 3 & 4 Anne, c. 9 ; and it was formerly supposed
that a protest on such bills was necessary in order to enable the holder to recover inter-
est, but it is now settled that it is not essential for that purpose. Windle v. Andrews,
2 B. & Aid. 696 ; 2 Starkie, 425 ; Chitty on Bills, 334.

In Mississippi, domestic bills drawn on and payable in that State, for the sum of S 20
or upwards, are required to be protested in like manner as foreign bills, but no damages
shall accrue. R. C. 1857, p. 356. Protest of inland bills is expressly allowed by statute
in several of the United States. Supra, p. 635, note t. That a protest of a promis-
sory note is not necessary, though made in one State and payable in another, see Kirt-
land V. Wanzer, 2 Duer, 278 ; Smith v. Ralston, 1 Morris, Iowa, 87 ; Young v. Bryan,
6 Wheat. 146; Bay v. Church, 15 Conn. 15; Payne v. Winn, 2 Bay, 374; Smith v.
Little, 10 N. H. 526 ; City Bank r. Cutter, 3 Pick. 414 ; Evans v. Gordon, 8 Port. Ala.
142; Smith v. Gibbs, 2 Smedes & M. 479; Piatt v. Drake, 1 Doug. Mich. 296 ; Pink-
ham V. Macy, 9 Met. 174; Coddington v. Davis, 1 Comst. 186, 3 Denio, 16; Burke v.
McKay, 2 How. 66 ; Parke v. Lowrie, 6 Watts & S. 507 ; McFarland v. Pico, 8 Calif. 626.
But although it is not necessary to prove the dishonor of a note by protest, it does not
follow that it may not be proved in that way. In Carter v. Burley, 9 N. H. 558, Parker,
C. J. seemed inclined to the view that a promissory note, made by a resident of one
State, and payable to a person residing in another, and indorsed so that it can be re-
garded as a bill, should be deemed a foreign bill so far as to admit the protest as evi-
dence in itself; but the decision of this i)oint was expressly waived. This point was
again alluded to in Smith v. Little, 10 N. H. 526, 531 ; and finally the point was
brought directly before the same court in Williams v. Putnam, 14 N. H. 540, and the
same eminent judge declared that the court had no hesitation in adopting the conclu-
sions to which the reasoning in those cases leads. "Each indorsement of a bill is in
efFecl a new bill, drawn by the indorscr upon the acceptor; and the similarity between

344 NOTES AND BILLS. [CH. XIV.

ever, very common in practice, and, as has been said, is the most
convenient, and by force of usage might perhaps be regarded as
tlie most regular way of giving notice, and establisliing the facts
of tlie case and tlie riglits of the parties. It is held, however,
in some of our States, that the notarial certificate of protest and
notice of promissory notes is not a document known to the
law.(/i) And no protest will authorize any one to pay a note
" for the honor of another." That is, if a stranger pays a note,
he will acquire no rights against any party, unless he has the
note transferred to him.(i)

Noting the protest means simply marking (usually and prop-
erly on the paper itself) the fact and time of the demand, the
charges of minuting, and sometimes the place and the name of
the parties of whom the demand is made, and it is signed by
the initials of the notary. This is sometimes said to be not
known to the law.(y) But the notary fills out his protest after-
wards (and it is only a fuller statement of all these facts), or
may testify in court as to the facts, by using the noting to revive
his recollection. (A;) The notary, by usage, makes the demand,

the indorsement of notes and the drawing and indorsement of bills of exchange is so
great, that there can be no sound reason given for establishing or preserving a distinc-
tion between thcni, and requiring a different character of evidence to prove the same
facts with regard to two instruments, which, though different in some respects as to
their phraseology, are so essentially similar in their nature and operation." And so in
Ticonic Bank v. Stackpolc, 41 Maine, 302, in an action against an indorscr, such a note
was treated as a foreign bill, and the notarial protest was held legally admissible as
evidence by the common law, independently of any statutory regulation.

(/() Thus in New York it is held that a promissory note payable in a foreign place
cannot be regarded as a bill of exchange so as to enable a protest of it to be read in
evidence. Kirtland v. Wanzer, 2 Duer, 278. In Indiana such a protest is admitted
under the statutes of that State. Shanklin i;. Cooper, 8 Blackf 41 ; Turner v. Rogers,
8 Ind. 139.

(j) Sec supra, ch. 9, sect. 4. See also Willis v. Hob.son, 37 Maine, 403, sit/mi, p. 257.

ij) As by Duller, J., in Leftley v. Mills, 4 T. 11. 170. Thomson, a Scotdi writer
on Bills, p. 477, says, that " it seems to be now held in Scotland and England, that
noting is a kind of incipient protest."

(h) It is said, that the protest may be formally drawn up or extended at any time
before the commencement of a suit upon the bill, and truly antedated, provided it was
noted in due time. Chitty on Bills, 477 ; Story on Bills, ^ 302 ; per Lord Kenyan and
Lord Ellenhorowjh, in Chaters v. Bell, 4 Esp. 48 ; Orr v. Maginnis, 7 East, 359 ; Rog-
ers i;. Stevens, 2 T. R. 713 ; Robins v. Gibson, 1 Maule & S. 288 ; Goostrey i'. Mead,
Buller, N. P. 271 ; Cayuga Co. Bank v. Hunt, 2 Hill, 635 ; Bailey v. Dozier, 6 How,
23. And it seems that the protest may be drawn up after legal proceedings have been
instituted, and during their progress. Brooke's Notary, 97. Such, also, is the law,
even in the ca.sc of payment supra j>rotest for the honor of a drawer or indorscr; for.

CH. XIV.] PROTEST. 645

and gives notice of non-payment to all prior parties. (Z) And hie
notarial certificate should contain the protest, the time, manner,
and place of the demand, and the names of the parties of whom
the demand is made, of those at whose request it is made, and
of the parties notified. (w) Nor will any merelv verbal mistake

although to make a party to a foreign bill liable in such case to a person who takes up
such bill for dishonor, it is necessary that a formal declaration of protest should, pre-
viously to so taking up the bill, have been made before a notary, tliat the ])aynient was
made for the honor of such party ; yet it is not necessary that the instrument of protest
should be formally drawn up at the time of sucli payment, but may be drawn up at
any time afterwards, if before trial. Geralopulo v. Weller, 10 C. B. 690, 3 Eng. L.
feEq. 515.

(/) This is prescribed by statute in several of the States. Supra, p. 635, note t.
But unless required by some State law, or some general usage equally binding, it is no
part of the official duty of a notary by the law merchant to give notice of the dishonor
of a promissory note. Per Story, J., in Burke v. McKay, 2 How. 66.

[m) Form of a protest for non-payment used in England, as given in Brooke's No-
tary, chap. 10 : —

On the day of , one thousand eight hundred and ,

I, R. B., Notary Public, duly admitted and sworn, dwelling in L , in the county of

L , and United Kingdom of Great Britain and Ireland, at the request of C. D., of

L [or of " the holder " or " the bearer," as the case may be), did exhibit the original

bill of exchange, whereof a true copy is on the other side written, unto E. F. [or as the.
case may be, unto a clerk in the counting-house of E. F.), the person upon whom the
said bill is drawn (and by whom the same is accepted, if the bill have been accepted),
and demanded payment thereof {or payment being thereupon demanded), and he
answered that it would not be paid. ( The substance of any other answer should be stated.)
Wherefore, I, the said notary, at the request aforesaid, have protested, and by these
presents do protest, against the drawer of the said bill, and all other persons thereto,
and all others concerned, for all exchange, re-exchange, and all costs, damages, and
interest, present and to come, for want of payment of the said bill.

Which I attest,
(Seal.) R. B.

Notary Public, L .

In a case where it appeared from the protest that the demand was made of the clerk
of the drawees at their place of business, but it was not stated in the body of the pro-
test that the drawees were absent, it was held that it was to be presumed in favor of the
protest that the drawees were absent. Gardner v Bank of Tennessee, 1 Swan, 420.
See supra, p. 639, note y. So it will be presumed in favor of a notary who certifies
that " On, &c., I did present the annexed draft of A on B, at the store of C," &c.,
that he presented the draft to the drawee in person. Sharpew. Drew, 9 Ind. 281. In
the protest of a bill, payable at a bank, and of which the bank is the holder, it is not
necessary to give the name of the person or officer of the bank to whom it was pre-
sented, 'or by whom the notary was answered that it could not be paid. Hildeburn v.
Turner, 5 How. 69. But it must appear from the certificate that the presentment was
made at the bank, and it is not sufficient to say merely that it was made to the cashier
of the bank. Seneca Co. Bank v. Neass, 5 Denio, 329. And so where a certificate of
a noUry stated that he presented the bill for payment to "one of the firm of W. C. &
Co., the acceptors, and demanded payment, which was refused," it was held that the

G46 NOTES AND BILLS. [CH. XIV.

or eri'Oi' in the notarial certificate vitiate it, if the protest and
noting "were properly made, and the notice properly given. (w)

The notarial charges are a legal charge, it is believed, only
where the protest is required by the law merchant. But it is
certainly usual to pay them where they are reasonable and made
m good faith and in conformity with usage.

The absence of protest may, in general, be excused on the
same grounds which excuse neglect of notice ; and these ex-
cuses have been fully considered in a previous chapter, (o) Here
it may be said, however, that protest is unnecessary if the
drawer has neither funds in the hands of the drawee, nor any
arrangement authorizing him to draw.(/?) So it is if the drawer

certificate was defective in not stating the place where demand was made, as well as
in not stating who composed the firm, or the name of the person of whom the demand
was made. Otsego Co. Bank v. Warren, 1 8 Barb. 290. In Elliott v. White, 6 Jones,
N. C. 98, it was held that a statement in the protest of a bill purporting to be drawn
on a firm, that it was presented to A, one of the members thereof, was evidence of
A's membership in that firm.

{n) Thus, where it was said that the acceptance was made by " Clias. Byrne,"
instead of " And. E. Byrne," as it was in the original bill, this error was not permitted
to vitiate the protest. And the court said, tliat where the protest was duly noted, inas-
much as it might be drawn up and completed at any time before ttic commencement
of the suit, or even before the trial, it consequently iniglit be amended according to the
truth, if any mistake had been made. Dennistoun r. Stewart, 17 How. 606. In Bank
at Decatur v. Hodges, 9 Ala. 631, a mistake iiad been made in the certificate in de-
scribing the date of the bill ; and the court said that a mistake made in extending the
notarial act may be corrected at any time afterwards. "It is not the extension of the
protest, but the fact that it is so protested, which is the essential matter." See Johnson
V. Cocks, 7 Eng. Ark. 672. It is not necessary that it should appear in the protest
iisdem verbis tiiat the notary had the bill with liim wlien he made demand, but tho
statement in the protest must a: vi termini import this. Bank of Vergennes r. Cam-
eron, 7 Barb. 143 ; Union Bank v. Fowlkes, 2 Sneed, 555. But in Musson v. Lake,
4 How. 262, it was held that a protest wliich states only that payment was demanded
is not admissible in evidence to prove presentment of the bill. Upon identically the
same question the contrary opinion was held in Louisiana. Nott r. Beard, 16 La. 308.
And it may be remarked that in Musson v. JjSikc, ^fcLenn and Woodbury, JJ. dissented
from the decision of the court, and were of opinion tliat the fair inference was tliat tho
bill was presented when tho demand was made. It will be pi-esumed in favor of the
notary, that the presentment and demand were made at a proper time in the day
Burbank v. Beach, 15 Barb. 326; De Wolf ». Murray, 2 Sandf. 166.

(o) Sec supra, chap. 13.

(/)) The want of a protest, like the want of notice to the drawer, will not ])r<judico
the holder as against the drawer, wiiere the non-acceptance or nnn-i)a\nient of the bill
iS caused liy the fraudulent act of the drawer. " The fact of drawing without finids, in
the absence of other proof to explain it, is a fr;ui(l ; for \]\r bill !-; negotiated under tiio
faith that the, drawer has or will place eflfccts in llic IkuhN of ilic drawee to meet tho
bill ; and if li'' had no elTects in the hands of the drawt'c, and kiicN" tlia', none; would l-Q

CH. XIV.] PROTEST. 647

has admitted liis liability, and promised to pay ; (q) or has, iu
the bill itself, directed its return in case of noii^)aymcnt, with-
out protest or further charge. (r) In these cases it may, however,
be doubted whether the protest is not still necessary to charge
indorsers.(5) At all events, it would be the safest way.

placed tliere, and that tlic drawee would not meet the bill, the whole transaction is
deemed fraudulent on the part of the drawer. Another, but subordinate reason, is
given for this cxce])lion, that tlie drawer cannot, in such case, be in any way injured
for want of notice of non-payment. But it is the fraud in drawing and delivering
such a bill upon which the excejition substantially rests ; for bankruptcy or notorious
insolvency of the drawee, or proof that in fact no injury resulted from want of notice,
will not excuse the holder from giving the drawer notice " Per Swan, J., in Miser v.
Trovinger, 7 Ohio State, 281. See 2 Smith's Lead. Cases, pp. 22, 29; Rogers v Ste-
vens, 2 T. R. 713; Legge v. Thorpe, 12 East, 171, 2 Camp. 310; Valk v. Sim-
mons, 4 Mason, 113. But it is no excuse for not giving notice of protest, that the
drawer had no eifects in the drawee's hands at the time when the bill was refused
acceptance or afterwards, if he had some effects (to whatever amount) in the drawee's
hands when the bill was drawn. Orr v. Maginnis, 7 East, 359. But the fact that
the drawer or acceptor of a bill of exchange had no funds, or reasonable expectatioa
thereof, at the place of payment, is no excuse for want of notice of protest for non-
payment ; the averment and proof should be, that the parties had no funds, or the
reasonable expectation of them, in the hands of the drawee at the maturity of the bill ;
for the bill may have been drawn for the accommodation of the acceptor, or the ac-
ceptor may have had funds in his hands, but have neglected to phice them in proper
time at the place of payment. Harwood v. Jarvis, 5 Sneed, 375. Accoinmodation
drawers, who unite as drawers with the person for whose accommodation they drew,
are entitled to notice of protest if they had reason to expect their principal would pro-
vide funds to meet the bill. Miser w. Trovinger, 7 Ohio State, 281. The same prin-
ciple holds with accommodation drawers generally. Id. ; 2 Smith's Lead. Cases, 22,
29. And generally it is the settled "rule of the English and American cases, that,
although the drawer had no assets in the hands of the drawee, want of protest will not
be excused if he had reasonable grounds to expect such funds. Id.

(q) Patterson v. Bccher, 6 J. B. Moore, 319 ; Gibbon v. Coggon, 2 Camp. 188. In the
latter case Lord Ellenborough said : " By the drawer's promise to pay, he admits his
liability ; he admits the existence of everything which is necessary to render liim

liable I must, therefore, presume that he had due notice, and that a protest

was regularly drawn up by a notary." See also Lonsdale v. Brown, 4 Wash. C. C.
86 ; Coddington v. Davis, 1 Comst. 186 ; Union Bank v. Hyde, 6 Wheat. 572. The
last two cases relate to waiver of protest of notes by express undertaking on the part
of indorsers. See, upon the same point, Sherer v. Easton Bank, 33 Penn. State, 134 ;
Coddington v. Davis, 3 Denio, 16. So where a drawer of a bill informed the holder
before its maturity, that it would not be paid when due, this was a waiver of protest
and notice. Minturn v. Fisher, 7 Calif. 573. And so the existence of a partnership
between the drawer and acceptor, it seems, would excuse the want of protest and notice
to the drawer. Harwood v. Jarvis, 5 Sneed, 375.

r) Chitty on Bills, 456.

(s) In Warder v. Tucker, 7 Mass. 449, and Taylor v. Bank of Illinois, 7 T. B.
Mon. 576, where the drawer had no effects in the hands of the drawee, it Wtts held that

64?y NOTES^ AND BILLS. [CH. XIV

A promise after dishonor to pay a bill, of which protest and
notice are necessary, may be sufficient prima facie evidence that
such protest and notice had been made.(^)

SECTION II.

OF RE-EXCHANGE AND OTHER DAMAGES.

He who draws a foreign bill of exchange makes an instru-
ment which is intended to be used as if it were so much cash on
demand, or on a certain day after sight or after date, at the
place on which the bill is drawn. And he is bound to the re-
mitter of the bill to make it this at its maturity, or the equiv-
alent of this. This obligation gives rise (in case of non-payment
at maturity) to what is called a right of re-exchange ; which is
defined to be the expense which the remitter incurs by having it
dishonored in the foreign country in which it is drawn, duly
presented, and returned to him, and taken up by liim.(//) The

an indorser of the bill was entitled to notice of a protest for non-acceptance, although
he indorsed only for the accommodation of the drawer. But this would be otherwise
if the indorser knew that there was no expectation that the bill would be accepted or
paid Farmers' Bank v. Vanmetcr, 4 Rand. 553 ; 2 Smith's Lead. Cases, 29. See
Hansbrough v. Gray, 3 Gratt 356.

(0 Gibbon v. Coggon, 2 Camp. 188; Levy v. Peters, 9 S. & K. 125; Tratte v.
Hanly, 1 Misso. 35 ; Mense v. Osbcrn, 5 id. 544.

(u) In addition to our own explanation, we giv.e the clear stuicmciit of tlie nature of
the transaction, and the relations which give rise to the question of exchange and re-
exchange, as made by the counsel for the plaintiff in ])e Tastct v. Baring, 1 1 East,
265, 2 Camp. 65 : " A merchant in London draws on his debtor in Lisbon a bill in
favor of another for so much in the currency of Portugal, for which he receives its cor-
responding value at the time in English currency ; and that corresponding value fluc-
tuates from time to time, according to the greater or lesser demand there may be in the
London market for bills on Lisbon, and the facility of obtaining thcin ; the dilFcrenco
of that value constitutes the rate of exchange cm Lisl)on. The like circumstances and
considerations take place at Lisbon, and constitute in like maimer the rate of exchange
on London. When the holder, therefore, of a London bill, drawn on lasbon, is refused
[)ayment of it in Lisbon, the actual loss which he sustains is not the identical sum
which he gave for the bill in London, but the amount of its contents if paid at Lisi)on,
where it was due, and the sum which it will cost him to replace that amount upon the
spot by a bill upon Lonilon, which he is entitled to draw upon the persons there who are
liable to him u[)on the former bill. That cost, whatever it may be, constitutes his actaal
loss, and the charge for rc-exchange. And it is quite immaterial whether or not ho in
fact rc-(lraw3 such a bill on London, and raises the money upon it in the T-isloa rial-

CH. XIV.] RE-EXCHAXGE AXD OTHER DAMAGES. 649

meaning and operation of tliis may ])c thus illustrateil. The
di'awcr, having ten thousand dollars due to him in London,
draws his bill on his debtor, and sells it to a party who owes,
or is to owe, that sum at that place. The bill is remitted by
the purchaser to his creditor or to his agent, as funds to pay
his creditor, and it is dishonored. The remitter must now be
indemnified. And this may happen in cither of two ways. The
remitter may draw a new bill, for such sum as will put his cred-
itor in possession of the sum due, with legal interest and ex-
penses of protest, etc., and as he must pay for this new bill
whatever rate of excliange it is worth, and may claim of the
drawer whatever it costs him, in this way the drawer pays to
him the re-exchange ; or the receiver of the bill in London may,
on its dishonor there, draw a bill on the remitter for such sum
as will enable him to sell the bill there for the amount which he
ought to have received on the first bill, clear of all cost. Of
course he must include in the bill the rate of exchange which
will bring the market value of the bill in London up to this
point. The remitter must pay this bill (including as it does

ket ; his loss by the dishonor of the London bill is exactly the same, and cannot depend
on the c'ircnmstcince whether he repay himself immediately by re-drawin<r for the
amount of the former bill, with the addition of the charges upon it, including the
amount of the re-exchange, if unfavorable to this country at the time, or whether he wait
till a future settlement of accounts with the party who is liable to him on the first bill
here ; but that party is at all events liable to him for the difference, for as soon as the
bill was dishonored, the holder was entitled to re-draw. That therefore is the period
to look to. It ought not to depend on the rise or fall of the bill market, or exchange
afterwards ; for as he could not charge the increased difference by his own delay in
waiting till the exchange grew more unfavorable to England before he redrew, so neither
could the party here fairly insist on having tlic advantage, if tiie exchange happened
to be more favorable wlicn the bill was actually drawn. Where re-cxcliange has been
recovered on the dishonor of a foreign hill, it has not been usual to prove that in fjvct
another bill was re-drawn. If the quantum of damage is not to be ascertained by the
existing rate of exchange at the time of the dishonor, the rule will become extremely
complex for settling what is to be paid on the bill between different indorsees, each of
whom takes it at the value of the exchange when he purchased it. If, then, the amount
of the re-exchange between the two countries at the time of the dishonor be the true
measure of damage which the holder at Lisbon was entitled to receive from his indorsee
in England, and that re-exchange consists of the amount of a bill on London, which
would put the holder of the dishonored bill in the same situation as if he had received
the contents of it when due in Lisbon, it cannot make any difference whether the ex-
change between Lisbon and London at the time were carried on directly, or through
c^e medium of other places. The more circuitous and difficult it was, the greater would
*e the loss of the holder by the dishonor."
VOL. I. 55

650 NOTES AXD BILLS. f CH. XIV.

this re-exchange) 5 and then he has his claim against the drawer
for all that it costs him. The acceptor, it is said, is not liable
for re-exchange, as he is bound only for the sum he promises to
pay, with legal interest, (v) But for this he is bound to the
holder ; and also to the drawer, if he pays the bill. And if the
default of the acceptor compels the drawer to pay this bill, and
these damages with it, it would seem, on general principles, that
the drawer's claim on the acceptor should cover the whole
amount. (?/;)

(v) Napier v. Shneider, 12 East, 420 (May 30th, 1810) ; Woolsey v. Crawford, 2
Camp. 445 (May 28th, 1810). In the latter case, which was an action by the payee of
a bill against the acceptor. Park, counsel for the plaintiff, contended that tlie defendant
was answerable for all the damage that had been suffered by the plaintiff from the bill
being dishonored. Lord Ellenborough : " You may as well state that, by reason of tho
bill not being paid, the plaintiff was obliged to raise money by mortgage. You must
proceed for re-exchange against the drawer. He undertakes that the bill shall be paid,
or that he will indemnify the holder against the consequences. The acceptor's contract
cannot be carried farther than to pay the sum specified in the bill, and interest accord-
ing to the legal rate of interest where it is due." In Watt v Riddle, 8 Watts, 545,
Gibson, C. J. said : " It was not a little remarkable that in so commercial a country as
America the point submitted has not been raised before ; nor is it less so, that it was first
decided in England so late as 1810, and with so little remark as to the principle of the
decision, though a novel and an important one. It came up in Napier r. Shneider, 12
East, 420, on a motion to direct that the master allow the expense of re-exchange on a
judgment against the defendant as an acceptor ; to which tlie court barely answered that
it could not be done against one who liad charged himself by his acceptance with no
more than liability to pay according to the law of his country ; and that if he do not, tho
holder has his remedy against the drawer." It was decided in this case that tlie statute
of Pennsylvania, which gives liquidated damages as a substitute for re-exchange, ha.s
regard only to drawers and indorsers. By the Continental law the acceptor is liable for
re-exchange. Pothier says that the acceptor is liable to pay re-exchange as the drawer
is liable to pay it, to whose obligation the acceptor is taken to have become a party
(avoir accede) by his aeeeptance. Pothier de Cliangc, n. 115-117, eh. 6, art. 4, § 1 . The
principle of accession, in the civil law, produces a unity of interest and obligation
between parties that would otherwise be severally bound, and it seems to be the want
of this principle which gave a different rule to the English law. That tlie acceptor
is not liable for damages, sec further, Bowcn i\ Stoddard, 10 Met. .')75 ; Newman v.
Goza, 2 La. Ann. 642; Hanrick v. Farmers' Bank, 8 Port. Ala. S.'jg. He is made
liable by statute in Missouri.

(w) Baylcy on Bills, ch. 9, p. 353 ; Riggs v. Lindsay, 7 Crunch, 500. In this case the
acceptors had expressly authorized and requested the drawer to draw upon them.
And so in Francis v. Ilueker, Ambler, 672, the bill having been drawn in pursuance
of orders of the acceptors, the drawer was allowed by Lord Camden to prove his debt,
including rc-cxcliange against the acceptors, who had become bankrupt. See Grim-
shaw V. Bender, 6 Mass. 157, 161, for diiinni of Parsons, C. J., and also a dictum in
Bowcn i^. Stoddard, 10 Met. 375. Mr. Bay ley says that "it seems rca.sonablc that tho
acceptor should be liable to all parties where he has effects, and to all excepting tho
drawer where he has not." Bills, ch. 10, p. 456, note. But the authorities onlv go

CH. XIV.] RE-EXCHANGE AND OTHER DAMAGES. 651

The drawer is liable for re-exchange as soon as the bill is dis-
honored and protested, whether for non-acceptance or for non
payment, (.r) and his liability is fixed in accordance with the
laws of the conntry where the bill is drawn. (v/) Nor is it a
defence, that the payment of the bill was prevented by the gov-
ernment of the country in which it was drawn. (2^) And in this

to the extent, that if he has expressly or impliedly agreed with the drawer or indorser,
for a valuable consideration, to pay the bill at its maturity, he is liable for a breach of
his contract; and if he has funds of the drawer in his hands, he would [)crhaps be
bound to accept. See City Bank of New Orleans v. Girard Bank, 10 La. 562.

{x) But the drawer is not liable to the indorser of a bill for damages incurred by the
non-acceptance of the bill, unless the indorser has been obliged to pay them, or is liable
for them. Kingston v. Wilson, 4 Wash. C. C. 310; Bank of U. S. v. U. S., 2 How.
711, 764, 767.

(y) Price v. Page, 24 Misso. 65 ; Story's Conf. of Laws, § 307. In Allen v. Kemble,
6 Moore, P. C. 314, the court says : " The drawer by his contract undertakes that the
drawee shall accept, and shall afterwards pay the bill, according to its tenor, at the
place and domicil of the drawee, if it be drawn and accepted generally ; at the place
appointed for payment, if it be drawn and accepted payable at a different place from
the place of domicile of the drawee. If this contract of the drawer be broken by the
drawee, either by non-acceptance or non-payment, the drawer is liable for payment
of the bill, not where the bill was to be paid by the drawee, but where he, the drawer,
made his contract, with his interest, damages, and costs, as the law of the country where
he contracted may allow." See Gibbs v. Fremont, 9 Exch. 25, 20 Eng. L. & Eq. 555.
And so in an action against an indorser of a bill of exchange, the law of the State
where the indorsement was made must govern as to the rate of damages. Cullum v.
Casey, 9 Port. Ala. 131. Such statutes have force only within the State enacting
them. Fiske v. Foster, 10 Met. 597. Each successive party to a bill is liable for dam-
ages on its dishonor, according to the law of the place where the contract was made;
and each indorsement is a new contract. Story on Bills, 153.

(z) Mcllish V. Simeon, 2 H. Bl. 378. The facts of this interesting case were these:
"On the 9th of July, 1793, two bills of exchange were drawn by Simeon in London on
Boyd & Co. in Paris, one for 35,000, the other for 36,000 livrcs tournois, amounting
together to £ 603 19s. lOd. sterling, according to the rate of exchange between Lon-
don and Paris of 6Jo?. for the French crown of three livres, and payable to the order
of Mcllish & Co., who indorsed them in London to Jeysset & Co. at Amsterdam.
Jeysset & Co. indorsed them to Meryolet at Amsterdam, and Meryolet to An-
droine at Paris. When they were presented for acceptance, Boyd & Co. refused to
accept them, but promised that they should be paid when they became due. In the
mean time, the French Convention passed a decree prohibiting the payment of any bills
drawn in any of the countries at war with France, and of course the bills in question
were not paid. In consequence of this, they were sent back by Androine to Meryolet
At Amsterdam, protested for non-acceptance and non-payment, and at the same time
Androine drew another bill on Meryolet for the amount of them, at the rate of 18^
groots for the French crown of three livres, for the re-exchange between Paris and
Amsterdam, together with the ordinary charges, which bill Meryolet paid, and was
reimbursed by Jeysset & Co., by compromise between them, at the rate of 18 groots for
the French crown, amounting to £905 13s. 9d. sterling, for which sum, together with
cnarges at Amsterdam, and the re-exchange between that place and London, making

652 NOTES AXD BILLS. [CH. XIV

case, as well as in all others, if the bill is returned to him cir-
cuitously, through other countries, so that more than one re-
exchange is added to it, he is liable for the whole, provided this
circuitous return was in good faith and justified by circum-
stances, and was not unnecessary or wanton. (a) And although
the whole doctrine and practice of re-exchange seems to belong
exclusively to foreign bills of exchange, promissory notes may
be so drawn as to bring them substantially under a similar
rule. (6)

As the amount of re-exchange depends necessarily upon the
course of business and the rate of exchange of the countries, it
is legal and not unfrequent to determine the amount by antici-
pation. Thus, where the bill says, " In case of dishonor, re-
exchange and expenses not to exceed $ — , so much either per

in the whole £913 4s. 3d. sterling, Jeysset & Co. drew a bill on Mellish & Co., which
they paid, and took back the former bills, on which they brought the present action
against Simeon, the drawer, and recovered a verdict for the whole sum of £913 4s. 3d.
And now Le Blanc, Sergeant, moved for a new trial, on the ground, that the defendant
was not liable for the loss on the re-exchange. It is true, he said, that the drawer of a
bill of exchange undertakes, by the act of drawing it, that the drawee shall be found in
the place where he is described to be, and shall have effects in his hands ; but the un-
dertaking does not extend to the case of a proiiibition to accept or pay the bill imposed
by the law of a foreign country in which the drawee resides. When a person takes a
bill circumstanced as this was, he must submit to the laws of that country. There
was no default in the drawer ; he therefore cannot in justice be lialde for more than
the sum he originally received for the bills, with interest and the expenses of protesting
them." Lord Chief Justice Ei/j-e : " I see no distinction between this case and the com-
mon one of a bill being refused payment. Tlie drawer must pay for all the conse-
quences of the non-payment, and the loss on the re^exchange seems to me to be part of
the damages arising from the contract not being performed. I thought, indeed, at the
trial, that it might be a question whether the drawer were liable for tlie re-exdiange
occasioned by the circuitous mode of returning the bills tlirough Amsterdam, but the
jury decided it." Buller, J. : " What is the engagement of the drawer of a bill of ex-
change ? He undertakes tliat the bill shall be i)aid when due. If it be not ])aid, it is
not necessary for tlie holder to inquire for what reason it is not paid, and if the liolder
has been guilty of no default, the drawer is answerable for tlie amount of the bill ; and
if he is liable for tlie bill, he must also l)e liable for the re-exchange, which is a conse-
quence of the bill not being paid." llenth, J. was of the same opinion. He who un-
dertakes for the act of another, undertakes tiiat it shall be done at all events.

(a) Mellish v. Simeon, 2 H. lii. 378; De Tastet v. Baring, 11 East, 26.').

(b) As where a note was made "j)ayal)le in Paris, or, at the choice of the bearer, in
Dover or London, according to the course of ex<'hnngo upon Paris," and shoitly afier
all direct exchange ceased between London and Paris, though a circuitous course of
exchange wjus maintained through Hamburg, it was held that the plaintiO' was entitled
to recover npon the note ; according to the system of circuitous exchange existinp »t
the time the note was presented for payment. Pollard i;. Herries, 3 Bos. & P. 335

CH. XIV.] KE-EXCHANGE AND OTHER DAMAGES. 653

cent or in a gross sum," no holder of such a l)ill can go
beyond this limit. (c) Nor could he claim so much under tliis
phraseology, unless the rc-exchange comes up to this. To avoid
question and litigation, it is therefore better to say, " shall be so
mucli," instead of " not to exceed."

This is precisely what the mercantile usages of this country,
in the first place, and afterwards the State statutes, have done.
It was first asserted as established mercantile usage in Massachu-
setts, and therefore as law, that ten per cent was payable as, or
instead of, re-exchange in all cases of dishonor of a bill drawn in
London. (f/) Afterwards, this and sundry other rates of ex-

(rf) Grimshaw v. Bender, 6 Mass. 157, 161. Mr. Chief Justice Parsons, in deliver-
ing the opinion of the court in this case, said : " According to the law merchant, ua-
controlled by any local usage, the holder is entitled to recover the face of the bill, and
the charges of the protest, with interest from the time when the bill ought to have been
paid, and also the price of re-exchange, so that he may purchase another good bill for
the remittance of the money, and be indemnified for the damage arising from the delay
of payment. But he cannot claim the ten per cent of the bill, which it is here the usage
to pay. But the mle of damages established by the law merchant is, in our opinion,
absolutely controlled by the immemorial usage in this State. Here the usage is, to
allow the holder of the bill the money for which it was drawn, reduced to our currency
at par, and also the charges of protest, with American interest on those sums from the
time when the bill should have been paid ; and the further sum of one tenth of the
money for which the bill was drawn, with interest upon it from the time payment of
the dishonored bill was demanded of the drawer. But nothing has been allowed for
re-exchange, whether it is below or at par. This us.ige is so ancient, that we cannot
trace its origin ; and it forms a part of the law merchant of the Commonwealth. Courts
of law have always recognized it, and juries have been instructed to govern themselves

by it in finding their verdicts The origin of this usage was probably founded in

the convenience of avoiding all disputes about the price of re-exchange, and to induce
purchasers to take their bills, by a liberal substitution often per cent instead of a claim
for re-exchange. And such is the course of excliaiige between this State and England,
that the usage is generally favorable to the holders of dishonored bills, and tends to
discourage the drawing of bills by persons who have no funds to meet them." See
Mass. Stat. 1819, c. 41, and 1825, c. 177 ; R. S. 1836, c. 33; Gen. Stats. 18G0, c. 53.
Mr. Chitty suggests the expediency of a fixed rule of damages instead of re-exchange.
Bills, 188, 667, 668. The policy of establishing statutory damages in place of re-
exchange is touched upon in Lennig v. Ralston, 23 Penn. State, 137, and it is declared
that courts should give such statutes a liberal interpretation. " The dishonor of
foreign bills," it is said, " may occur, and usually does occur, at points where the
holders cannot supervise the result, and where they have neither means nor credit to
provide against the injury. These instruments are generally procured at a pre-
mium by the holders, for the purpose of making their purchases in the country
where the bills are payable, or as the means of pursuing their travels or main-
taining their credit abroad. The great distance between the residence of the drawers
and that of the acceptors must necessarily cause great delay in procuring indomnitv
55*

65'A NOTES AND BILLS. [CH. XIV.

change, or of damages instead of them, between this State and
various foreign countries, and between this State and other
States, were established by law. Similar statutes exist now in
otlier States.

These statutes, in the different States, are far from uniform.
The inconvenience and frequent mischief arising from the diver-
sity of the legal provisions on this subject have been strongly
urged upon the attention of Congress, wliich, it is believed, has
the jjower to regulate these damages by some uniform rule.(e)
But the national legislature has as yet taken little or no ac-
tion on the subject ; and there seems to be but little hope of any
establishment of a national and uniform rule. We give in our

from the former. In the mean time, the loss to the holders, if they rely exclusively
upon the bills to maintain their credit, and carry on their business, might be irrep-
arable. Under such circumstances the recovery of the face of the bill only, with
the usual interest, re-exchange, and costs, would be but a cold and inadequate
remedy for so great an injury. The Act of 1821 was deemed necessary in order
to do justice in such cases, and for the purpose of maintaining our commercial
credit in other countries. It should receive such a construction as will best promote
the intentions of the legislature in these respects." As flir back as the year 1700, the
legislature of Pennsylvania allowed twenty per cent damages, in lieu of re-cxchange,
on all bills drawn on England, or any part of Europe. Francis v. Kucker, Ambl.
672; Hendricks v. Franklin, 4 Johns. 119. In Rhode Island, as early as 1743, an
act of similar purport was passed, fixing the damages at ten per cent. Brown v. Van
Braum, 3 Dallas, 344. In Hendricks v. Franklin, 4 Johns. 119, which was an action
on a bill drawn in New York on Liverpool, the plaintiff' claimed twenty per cent
damages and interest, together with two per cent for the difference of exchange, it
being two per cent above par when the defendant was notified of the non-payment
of the bill, in accordance with the usage of the Chamber of Commerce to allow for
this difference. Spencer, J. said : " The right to recover twenty per cent damages
on the protest of a foreign bill of exchange rests with us on immemorial commer-
cial usage, sanctioned by a long course of judicial decision It is presumed

that our rule to allow twenty per cent on the protest of a foreign bill was oiiginally
coextensive witli the rule established in Pennsylvania, and tiiat the same reasons in-
duced botli rules. The twenty per cent was in lieu of damages in case of re-excluingc,
and because there was no course of exchange from London to New York, and to avoid

the constant fluctuation and uncertainty of exchange I understand that merchants

regulate themselves by tlie rules of the Cliamber of Commerce. Tiiis, iiowever, can-
not make the law ; the usage is too recent, and too unsupported by judicial counte-
nance, to produce the conse([uences contended for In my opinion, tiie twenty per

cent is in lieu of all claim for damages in such cases; and the claim for liie difference
in the price of the bills cannot be supported, and therefore it must be deducted in this
case." In a subscciuent case, Irowever, in the Court of Errors, tliis rule was altered,
and the holder allowed to recover at the rate of exchange at the time of tlie return of
the bill. Graves v. Dash, 12 Johns. 17.

(e) iSee 2 Am. Jurist, p. 79 ; Mr. Verplanck's Report to the House cf Representa-
tives, March 22d, 1826.

CH. XIV.] RE-EXCHANGE AND OTHER DAMAGES. 655

notes a synopsis of the laws of tlie various States on this
subject. (/)

(/) Alabama. The damages on inland bills of exchange, protested for non-pay-
ment, are ten per cent, and on foreign bills of exchange, protested for non-payment,
fifteen per cent, on the sum drawn for. Such damages are in the place of all charges,
except costs of protest, incurred previous to and at the time of giving notice of non-
payment ; but the holder may recover legal interest upon the aggregate amount of the
principal sum specified in the bill, and of the damages thereon, from the time at which
payment of the principal sum has been demanded, and costs of protest. When the
amount in such bill is expressed in money of the United States, the damages allowed by
the statute cover the rate of exchange ; but bills payable in ibreign currency have the
rate of exchange added. The same damages are allowed on the dishonor of bills by
non-acceptance, with interest on the principal sum from the time when the same would
have become payable if accepted, and interest on the damages from the demand of
acceptance. Code, 1852, ^4 1537-1541. Inland bills arc defined to be such as are
drawn and i)ayablo within the State ; and those drawn in this State and payable else-
where arc foreign. Id., § 1549.

Arkansas. On every bill of exchange, expressed to be for value received, drawn or
negotiated within the State, payable after date to order or bearer, and protested for
non-acceptance or non-payment, the damages are as follows. For a bill drawn on
any person, at any place within this State, at the rate of two per cent on the principal
sum ; for a bill payable in Alabama, Louisiana, Mississippi, Tennessee, Kentucky,
Ohio, Indiana, Illinois, or Missouri, or any point on the Ohio River, at the rate of four
percent; for a bill payable elsewhere in the United States, five per cent; for a bill pay-
able beyond the limits of the United States, ten per cent. The acceptor of bills drawn
on persons within the State is required to pay damages on bills protested for non-pay-
ment, as follows : if the bill is drawn by any person at any place within this State, at
the rate of two per cent on the principal sum ; if drawn at any place without this
State, but within the limits of the United States, at six per cent; if drawn at any
place without the limits of the United States, at ten per cent. Dig. of Stats. 1858,
p. 209.

California. The damages on protested bills of exchange, drawn or negotiated within
this State, are as follows. If drawn upon any person in any of the United States, cast
of the Rocky Mountains, fifteen per cent ; if drawn upon any person in Europe, or in
any foreign country, twenty per cent. Such damages are in lieu of interest and all
charges previous to the giving notice of dishonor. If the contents of such bill be ex-
pressed in the money or currency of any foreign country, then the amount due, exclu-
sive of the damages payable thereon, shall be ascertained by the rate of exchange, or
the value of such foreign currency at the time of the demand of payment or acceptance.
The holder of the bill cannot recover damages unless he has paid value therefor.
Wood's Dig. 1858, p. 72. The acceptance of payment of one of the set of bills is a
waiver of all claim for damages for the previous dishonor of another one of the set.
Page V. Warner, 4 Calif. 395.

Connecticut. The damages on bills of exchange drawn or indorsed in this State,
payable in any other State, Territory, or District of the United States, and returned
protested, are, besides interest, as follows. If such bill shall have been drawn upon any
person in the city of New York, two per cent ; if upon any ])crson in the States of New
Hampshire, Vermont, Maine, Massachusetts, Rhode Island, New York (except the
dty of New York), New Jersey, Pennsylvania, Delaware, Maryland, or Virginia, or in
the District of Columbia, three per cent ; if upon any person in the States of North

656 NOTES AND BILLS. [CH. XIV.

It vvill be seen that, generally, the rate of damages in-

Oarolina, South Carolina, Ohio, or Georgia, five per cent ; if upon any person in any
other State, Territory, or District of the United States, eiglit per cent ; and such
damages shall be instead of interest and all other charges up to the time of giving
notice of dishonor. Stats., compilation of 1854, p. 696.

Delaware. The damages on bills of exchange drawn on any person beyond seas,
and returned unpaid with legal protest, shall, as to the drawer, indorser, and all con-
cerned, be at the rate of twenty per cent on the contents of such bills, in addition
thereto. Rev. Code, 1852, p. 183.

Florida. Damages on foreign protested bills of exchange are at the rate of five per
cent. Thompson's Dig. 1847, p. 349.

Georgia. Upon bills of exchange drawn in this State upon any person within the
United States, out of this State, returned duly protested, the holder is entitled to re-
cover five per cent damages over and above the principal sum, together with lawful
interest on the aggregate amount from the time of giving notice of protest and making
demand of payment. Upon such bills drawn on any place beyond the limits of the
United States the holder may recover the principal, with postage, protests, and other
necessary expenses, and interest on the amount of these sums from the date of the pro-
test until the presenting of the same for payment in this State, at the rate established
at the place at which the bill was payable ; and also the premium on such aggregate
amount as good bills of like description are worth at the time and place of demand ;
but if such bills arc then and there at a discount, tbe holder is to deduct the discount ;
and the holder recovers damages at the rate of ten per cent on the principal sum, with
Georgia interest. Cobb's New Dig. 1851, Vol. I. p. 521.

Illinois. The damages on bills of exchange expressed for value received, payable
in foreign countries and protested for non-payment or non-acceptance, are ten jicr cent
on tiie principal, together with interest and the costs and charges of protest. On such
bills payable out of this State, but within the United States or their Territories, tho
holder recovers five per cent, together with interest and costs, and charges of protest.
Stats. Comp. 1858, Vol. I. p. 290.

Indiana. Damages payable on protest for non-payment or non-acceptance of a bill
oV exchange, drawn or negotiated within this State, are, if drawn upon any person, at
any place out of this State, but within the United States, five per cent ; but if upon
any person at any place without the United States, ten per cent on tiie principal of
sucii bill. Beyond such damages, no interest or charges accruing prior to protest are
allowed ; but interest from the date of the protest may be recovered. As to any bill
jiayable witliin the United States, the rate of exchange is not taken into account. No
damages beyond cost of protest are chargeable against drawer or indorser, if, upon
notice of protest and demand of the princii)al sum, the same is paid, nor can the
holder recover damages unless he has given value therefor. I R. S. 1852, p 379. A
bill drawn by a person resident in Indiana, payable in New Orleans, and directed to
iiimself in tiiat city, was held, upon protest for non-payment, to come witliin tbe equity
of tbe statute, and the drawer was made liable to five per cent damages. State Bank
V. Bowers, 8 Blackf. 72. See Ohio, post, p. 659, and Wood v. Farm. & Mcch. Bank,
7 T. B. Mon. 281. In State Bank v. Rodgers, 3 Ind. 53, a bill payal)lo at Cincinnati,
the parties being all residents of Indiana, was also held to be within the statute. Under
the provision allowing the drawer or indorser, upon notice of j)rotest, and a demand
of the principal, to avoid damages by payment, a notice of a protest is a suflicient
demand of jiayment, without any averment of a special demaiul. May r. State Bank.
9 Ind. 233.

CH. XIV.] EE-EXCIIANGE AND OTHER DAMAGES. 657

creases wilh the distance of the place upon which the hill i?
drawn.

Iowa. Tlie ilaiiuigcs on hills of cxcliaiif^c drawn or indorsed witliin this State, and
protested for non-acceptance or iion-pavineni, are, for bills drawn upon a person at a
phicc out of the United States, or in C-alifurnia, Oregon, Utah, or New Mexico, ten
per cent upon the principal, with interest from tiie time of protest ; for hills upon a
person at a place in Iowa, Missouri, Illinois, Wisconsin, or Miimesota, three per cent,
with interest ; for hills upon Arkansas, Louisiana, Mississippi, Tennessee, Kentucky,
Indiana, Ohio, Virginia, District of Columbia, Pennsylvania, Maryland, New Jersey,
New York, Massachusetts, Rhode Island, or Connecticut, five per cent, with interest;
for hills drawn upon a person at a place in any other State in the United States, eight
per cent, wiiii interest. Code 18.51, p. 1.51, § 9G5.

Kentucky. Wiiere any bill of exchange, drawn on any person out of the United
States, is protested for non-payment or non-acceptance, it bears ten per cent per year
interest, from the day of protest, for not longer tluiTi eighteen months, unless pavment
be sooner demanded from the ])arty to be charged Such interest is recovered up to
the time of the judgment, and the judgment bears legal interest thereafter. Damages
on all other bills arc disallowed. R. S. 1852, p. 194.

Louisiana. The rate of damages to be allowed upon the usual protest for non-
acceptance or noil payment oi hills of exchange drawn or negotiated in this State is,
on hills drawn on and payable in foreign countries, ten per cent ; on all bills drawn on
and payable in any other State in the United States, five per cent on the iirincipal sum
specitied in such bill. Damages are in lieu of interest, charges of protest, and all other
charges incurred previous to and at the time of giving notice of non-acceptance or
non-payment, but the holder is entitled to recover lawful interest upon the aggregate
amount of the principal sum, and of the damages thereon from the time at which
notice of protest for non-acceptance or non-payment shall have been given and pay-
ment demanded. When the contents of the bill are expressed in the money of the
United States, the amount of the principal and of the damages is ascertained, without
any reference to the rate of excliange ; but when expressed in a foreign currency, the
principal and damages are dcterminetl by the rate of exchange ; but when the value of
such foreign coin is fixed by the laws of the United States, the value thus fixed must
prevail. R. S. 1856, pp. 43, 44.

Maine. Damages on protest of bills of exchange of a hundred dollars or more, pay-
able by the acceptor, drawer, or indorser of one in this State, are, if payable at a place
seventy-five miles distant, one percent; if payable in the State of Now York, or in any
State northerly of it, and not in this State, three per cent ; if payable in any Atlantic
State or Territory southerly of New York and northerly of Florida, six per cent; and
in any other State or Territory, nine per cent. R. S. 1857, c. 82, § 35, p. 519.

Maryland. The holder of a bill of exchange drawn in the State on any person in
a foreign country, regularly protested, is entitled to recover so much current money as
will purchase a good bill of exchange of the same time of payment, and iijjon the
same place, at the current exchange of such bills, and also fifteen per cent damages,
fvith costs of protest and interest; if drawn on any person in any other of the United
States, and protested, the holder may recover in the same way a sum sufficient to buy
another bill of the same tenor, and eight per cent damages on the principal sum, and
interest from the time of protest, and costs. It is also provided that indorscrs of such
Sills, who shall have paid the principal and the damages prescribed by statute, may
recover the same, with interest thereon from the drawer or any other jicrson liable to
bim upon the bill. Laws, Dorsey's cd., Vol. I. p. 197. The indorser of a bill, remit-
Vol. L— 2 U

6o8 NOTES AND BILLS. [CH. XIV.

The lability for the payment of the damages allowed by statute

ted to his original character as holder and payee, cannot recover under the last section
of this statute, but only as holder. Bank of U. S. v. United States, 2 How. 711.

Massachusetts. On bills of exchange, negotiated in Massachusetts, payable witiiout
the limits of the United States, (excepting places in Africa beyond the Cape of Good
Hope, and places in Asia and the islands thereof,) the party liable shall pay at the cur-
rent rate of exchange, and damages at the rate of five per cent upon the contents,
together with interest thereon from the date of the protest; but on bills payable in
Africa beyond the Cape of Good Hope, or any place in Asia or the islands thereof, the
party liable shall pay the same at the par value thereof, with twenty per cent thereon
in full of all damages, interest, and charges. On bills payable within the States of
Maine, New Hampshire, Vermont, Rhode Island, Connecticut, or New York, the jiarty
liable shall pay two per cent with interest and costs; on bills payable in New Jersey,
Pennsylvania, Maryland, or Delaware, three per cent ; Virginia, North Carolina,
South Carolina, Georgia, or the District of Columbia, four per cent ; and if in any
other of the United States or the Territories thereof, five per cent. Damages on bills
for a sum not less than one hundred dollars, and payable within the State, at a distance
of not less than seventy-five miles from the place where they were drawn or indorsed, arc
one per cent. R. S. 18;!6, c. 33, §§ 1 -4 ; Laws of 1837, p. 239 ; Gen. Stats. 1860, c. 53.

Michigan. Whenever any bill of excliange, drawn or indorsed within this State,
and payable without the limits of the United States, is protested for non-acceptance or
non-payment, the party liable shall pay the contents at the current rate of exchange at
the time of demand, and damages at the rate of five per cent, together with interest
from the date of protest ; and such payment shall be in full of all damages, charges,
and expenses. The damages on bills payable in Wiscon.sin, Illinois, Indiana, I'cnn-
Bvlvania, Ohio, or New York are three per cent; on bills payable in ^Missouri, Ken-
tucky, Maine, New Hampshire, Vermont, Masssichusetts, Riiode Island, Connecticut,
New Jersey, Delaware, Maryland, Virginia, or the District of Columbia, five per cent ;
on bills payable elsewhere without this State and within the United States or the Ter-
ritories thereof, ten per cent. Compiled Laws, 18.'j7, Vol. I. p. 408.

Minnesota. On bills of exchange drawn or indorsed within this State, and payable
without the limits of the United States, and duly protested for non-acceptance or non-
payment, the party liable shall pay the contents at the current rate of exchange at the
time of demand, and damages at the rate of ten per cent, together with interest from
the date of protest; and said amount of contents, damages, and interest is in full of all
damages, charges, and expenses. The damages on bills drawn on any person out of
this State, but within some State or Territory of the United States, are at the rate of
five per cent, together with interest and costs and charges of protest. Stats. Compiled,
1858, p. 375.

Mississipfvi. The damages on all bills of exchange drawn in this State upon any
person resident within the United States and out of this State, and returned protested
for non-acceptance, are five per cent, and interest on the principal ; on bills payable
oat of the United States, and protested f(jr non-acceptance or non-payment, they are
ten per cent, and interest on the principal ; and in all cases the holder is entitled to all
costs and charges. Code 1857, p 356.

Missouri. The damages on bills of exchange drawn or negotiated within this State,
and protested for non-acceptance or non-payment, arc as follows. If drawi\ on any pcr-
Bon at any place within this State, four per cent on the principal ; if drawn on any pcr-
eon wittiout this State, but within the United States or the Territories thereof, ten per
cent; if drawn on any person at any port or place without the United Stages and their

CH. XIV.] RE-EXCHANGE AND OTHER DAMAGES. 659

for rc-exchaiige becomes perfect on tlie return of the oill pro-

Territorics, twenty per cent. The acceptor is made liable to damages upon protest for
non-payment of Mils accepted in this State, at tlie rate of four per cent on the jirinci-
pal sum ; on hills accepted at any place without this State, but within the United States
or their Territories, at the rate of ten per cent ; and on bills accepted beyond the
United States and their Territories, at the rate of twenty per cent. These damages
can be recovered only by a holder for a valuable consideration. The damages are in
lieu of interest, charges of protest, and other charges previous to and at the time of
giving notice of dishonor. When tlie bills are payable in money of the United States,
the rate of exchange is disregarded ; but when payable in foreign currency, the amount
due, exclusive of damages, is ascertained by the rate of exchange at the time of pay-
ment. R. S. 1 8.5.5, Vol. I. pp. 293-29,5. That the bill must contain the words " for value
received," in order to entitle the holder to damages, see Hallowell v. Page, 24 Misso.
590 ; Kiggs v. City of St. Louis, 7 id. 438.

New York. The rate of damages to be allowed and paid upon the usual protest for
non-payment or non-acceptance of bills of exchange, drawn or negotiated within this
State, is, for bills payable in either of the Ilastern or New England States, in New Jer-
sey, Pennsylvania, Ohio, Delaware, Maryland, or Virginia, or in the District of Co-
lumbia, three per cent; for bills payable in North Carolina, South Carolina, Georgia,
Kentucky, or Tennessee, five per cent; for bills payable in any other State or Terri-
tory of the United States, or at any other place on or .adjacent to this continent and
north of the equator, or in any British or other foreign possessions in the West Indies,
or elsewhere in the Western Atlantic Ocean, ten per cent; for bills payable in any-
port or place in Europe, ten per cent. These damages are in lieu of interest, charojes
of protest, and all other charges incurred previous to and at the time of giving notice
of non-payment or non-acceptance ; but the holder may recover subsequent interest
and damages. Where the contents of the bill are expressed in the money of account
or currency of any foreign country, the amount due, exclusive of the damages payable
thereon, is to be ascertained and determined by the rate of exchange, or the value of
such foreign currency at the time of the demand of payment. The holder of the bill
cannot recover damages unless he has paid value therefor. 2 R. S. p. 179, 180, 4th cd.

North Carolina. The damages on ])rotestcd bills of exchange, drawn or indorsed
in this State, are as follows. For bills drawn upon any person in any other of the
United States, or in any of the Territories thereof, three per cent ; for bills payable in
any other place in North America (excepting the Northwest Coast of America), or in
any of the West India or Bahama Islands, ten per cent ; for bills payable in the island
of Madeira, the Canaries, the Azores, the Cape de Verd Islands, or in any other state
or place in Europe or South America, fifteen per cent ; if payable in any other part of
the world, twenty per cent on the principal sum. R. Code, 1854, c. 13, pp. Ill, 112.

Ohio. The damages on bills of exchange negotiated in this State, drawn on any
person v/ithout the jurisdiction of the United States, and returned protested, are twelve
per cent; upon bills drawn on any person within the jurisdiction of the United States,
and without the jurisdiction of this State, six per cent. The bills in all cases hear
interest of six per cent from the date of protest. No damages are recoverable in case
there is an agreement or understanding between the drawer or indorscr and the payee
or indorsee, permitting the bill to be paid at any other place than that on which it was
drawn. R. S. 1854, Swan's ed , p. 576. Under this statute it is held that damages
cannot be recovered on a bill drawn upon a person resident in Ohio, althongli payable
\a New York. Farmers' Bank v. Brainerd, 8 Ohio, 292. But where a bill was drawn
m Cincinnati, directed to " T. & C. New Orleans," T. & C. being a firm having bnsi-

660 NOTES AND BILLS. [CH. XIV.

tested, and is as fixed and determinate an obligation as the debt

ness houses both in New Orleans and Cincinnati, T. residing in the former eity and C.
in the latter, and the bill was accepted for the New Orleans house bv C. at Cincinnati,
and at maturity was presented for payment to the house in New Orleans, and protested
for non-payment, it was held that the drawers were liable to pay six per cent damages,
according to the statute. The former case was distinguished from this by the fact that
the bill in that case was drawn, not on a Jinn, but an individual, resident within the
State, and not appearing to have any place of business, without the State, at which the
bill was addressed to him. West ». Valley Bank, 6 Ohio State, 168. See Indiana,
ante, p. 6.56, for decisions to the like effect of that in Farmers' Bank v. Brainerd,
8 Ohio. 292. See Cox f. Bank of Tennessee, 3 Sneed, 140; Clay v. Hopkins, 3
A. K. Marsh. 485 ; Bank of U. S. v. Daniel, 12 Pet. 32, .53. To entitle the holder of
a bill drawn in Ohio on another State to recover the statutory damages, a protest is
necessary. Case v. Heft'ner, 10 Ohio, 180, 187.

Oregon. The damages on bills of exchange, drawn or indorsed in this State, and
payal>le beyond the limits of the United States, are at the rate of ten per cent in addi-
tion to the current rate of exchange, together with interest from date of protest ; and
such amount of contents, damages, and interest is in full of all damages, charges, and
expenses. On bills payable out of this State, but within some State or Territory of
the United State;;, the damages are five per cent, with interest and costs and charges
of protest. Comp. Stats. \9,hb, p. .531.

Pennsylvania. The damages on bills of exchange drawn or indorsed in this State,
and returned for nonaccei)tance or non-payment with a legal protest, over and above
the |)rincipal sum and lawful interest, and charges of protest, from tlw time at which
notice of such protest shall have been given, are, for bills payable in an" of the United
States or Territories thereof, excepting Upper and Lower California, New Mexico, and
Oregon, five per cent; for bills j)ayable in these excepted States and Territories, ten per
cent ; for bills payable in China, India, or other parts of Asia, Africa, or islands in the
Pacific Ocean, twenty per cent ; for bills u])on Mexico, the Spanish Main, West In-
dies or other Atlantic islands, east coast of South America, Great Britain, or other
places in Europe, ten per cent ; for bills upon places on the west coast of South Amer-
ica, fifteen per cent; and for bills upon any other part of .the world ten per cent upon
such principal sum. The amount of such bill, .and of the damages payable thereon, is
ascertained and determined by the rate of exchange, or value of the money or cur-
rency mentioned in such bill at the time of notice of protest and demand of ])ayment.
Purdon's Dig. 1857, p. 91 ; Acts of 1821 and 1850. This statute has regard only to
drawers and indorsers, and not to acce[)tors of bills. Watt r. Kiddle, 8 Watts, 545.

Rhode Island. Bills drawn or indorsed in this State, and returned from anv place or
country witliout the limits of the United States protested for non-acce|)tance or non-
I)ayrnciit, sul)ject the drawer or imlorser to the payment of ten per cent damages
thereon, and charges of protest, with interest. The damages on bills payable in other
States of the United States, and returned under protest, are five per cent, together with
charges of protest and interest, from the date of protest, li. S. 1 857, c. 1 22. ^^ 1 -3, p. 277.

South Carolina. The damages on bills of exchange drawn upon jiersons resident
within the United States, and out of this State, and returned protested, are ten per cent ;
and on all bills in like manner drawn upon persons resident in any other part of North
America, or within any of the West India Islands, and protested, the damages are
twelv(! and a half percent; and on all bills drawn on j)crsons resident in any other
part of (he world, fifteen f)er cent, and all charges incidental thereto, with lawful iD-
icrcBt, until the same he paid. Stats, at Large, Vol. IV. p. 741 ; Act of 1780.

CH. XIV.] RE-EXCHANGE AND OTHER DAMAGES. 661

itself; (g-) and damages may be recovered without being specially

Tennessee. When a bill of cxciiange, drawn or indorsed in this State, upon any
person of or in any other State or Territory, is returned protested, the payee may
recover from the drawer or indorsers, besides the principal, interest, and charges of pro-
test, damages at tiie following rates per cent upon the principal sum : Three per cent,
if the bill wivs drawn upon a person of or in any of the United States or Territories
thereof; fifteen percent, if drawn upon any persoii of or in any otlier State or place
in Nortii America bordering upon the Gulf of Mexico, or of or in any of the West India
Islands. The damages are in lieu of interest and all other eiiarges, excej)t charges of
protest, to tlie time when notice of the protest and demand of payment shall have been
given ; but interest shall be computed from that time on the principal, together with the
damages and charges of protest. Code 1858, §§ 1963, 1964. It is held that a bill
drawn and accepted in this State, all the parties to which reside in this State, I)ut paya-
ble in anotiier State, is not such a bill as is contemplated in the statute, upon protest
of which tiiree per cent damages can be recovered by the holder. Co.x v. Bank of
Tennessee, 3 Sneed, 140.

Texas. The damages on bills of exchange drawn in this State, upon any person
living beyond the limits of this State, are ten per cent on the amount of such bill,
together with interest and costs of suit tliereon, accruing when the liability of the
drawer or indorser of such bill has been fixed by the commencement of a suit instead
of a protest. Oldham & Whiten, Dig. 1859.

Virginia. When a bill of exchange, drawn or indorsed within this State, is pro-
tested for non-acceptance or non-payment, the party liable shall pay damages upon the
principal, at the rate of three per cent if the bill be payable out of Virginia and
within the United States, and at the rate of ten per cent if the bill be payable without
the United States. Code 1849, p. 582.

Wisconsin. Whenever any bill of exchange drawn or indorsed within this State,
and payable without the limits of the United States, shall be duly protested for non-
acceptance or non-payment, the party liable for the contents of such bill shall pay the
same at the current rate of exchange at the time of the demand, and damages at the
rate of five per cent upon the contents thereof, together with interest on the said con-
tents, to be computed from the date of the protest ; and said amount of contents, dam-
ages, and interest shall be in full of all damages, charges, and exjienses. The damages
on bills of exchange, payable within some State or Territory of the United States
adjoining this State, are five per cent, together with costs and charges of protest
aiul interest. On bills drawn on other States, the holder recovers ten per cent dam-
ages, together with costs and charges of protest and legal interest. 11. S. 1858, c. 60,
^ 8-10, p. 409.

((/) Ilargous V. Lahens, 3 Sandf 213. It was held in this case that the holder of a
foreign bill is entitled to his damages, on its non-payment, upon the whole amount of
the bill, although he may subsequently to the protest receive part payment of the bill
fi'om the acceptor at the place where it is due and payable. Laing v. Barclay, 3 Stark.
38, and Bangor Bank v. Hook, 5 Greenl. 174, to the contrary, are reviewed. "Now
it is obvious," says Sundford, J., " that the subsequent collection of the amount of the
protested bill at the place where it was payable will not make the remitter whole in the
transaction, unless it sh.all so hap[ en that the rate of exchange is at that time so favor-
able to him that he can sell a bill drawn by him against such collection for as much as
It cost him to remit and take up the protested bill when he received notice of its dis-
honor, together with his expenses in the collection. Thus the result in reference to an
Rctaal reimbursement of the remitter, or a restoration to the same state he would have

VOL. I. 56

662 NOTES AND BILLS. [CH. XIV.

laid ill th-^ declaration. (/i) It is said, however, that an averment
of protest, is necessary to the recovery of damages, because they
accrue only on the protest, (i) It is generally held that these
damages are not regarded in law as a penalty, but as a com-
pensation made necessary by the principle of indemnity. (}')

To the sum due on the face of the paper, legal interest, from
the time when it became due, should be added. Noting, post-
ages, and perhaps any other necessary expenses, may also be
recovered ; but a money count should be added to the declara-
tion to cover these charges. (^^)

If an indorser is sued, and, by a judgment against him, com-
pelled to pay, he cannot ordinarily charge the costs of suit, or
the expenses of his defence, to prior parties ; for his remedy
against them is limited to what he must have paid without
suit.(/) If, however, the party thus obliged to pay was an ac-
commodation party, that is, if he drew, accepted, or indorsed
the paper wholly and knowingly without consideration, and
with intention to accommodate another party, he may charge

been in if the bill had been paid according to its tenor and obligation, would depend
upon the fluctuations of exchange, the credit of the holder as a drawer of foreign bills,
the continued solvency of his agent abroad, and other considerations which we need
not enumerate. It was intended by tlie rule of fixed damages provided in the statute
to avoid all inquiries of this character in every ease of protested bills of exchange."
See contra, Warren v. Coombs, 20 Maine, 139.

(A) Lloyd V. McGarr, 3 Barr, 474, per Gibson, C. J. The damages allowed by stat-
ute are not given as a penalty for drawing without authority, but as commutation tor
interest, damages, and re-exchange. It is in truth, a liquidation of the damages, not
by the parties, but by the law, fi.xing tlie compensation for tlic loss beforehand, to save
time and litigation ; and if damages need not be s|)ecially laid where tiierc is no statute
on the subject, as tliey certainly need not be in England, no rule of pleading requires
them to be laid in their liquidated form. In Bank of U. S. r. United States, 2 How.
711, 737, McTjciin, J. remarked, that the damages on bills of exchange given by the
statute arc as much a part of the contract as the interest.

(0 Jordan v. Bell, 8 Port. Ala. 53.

( /) Among tlic leading authorities on this point are Lcnnig v. Ralston, 23 Penn.
State, 137, 140 ; Allen v. Union Bank of Louisiana, .5 Whart. 420, 425 ; Bangor Bank
». Hook, 5 Grcenl. 174.

(k) Kcndrick v. Lomax, 2 Cromp. & J. 405, 2 Tyrw. 438 ; UoJImul, B. : "I have
always heard it stated, that if there was no count s|)e<'ially stating them, those charges
could not be recovered. Interest is clearly difl'erciit. It flriws out of the comiact."

(/) Dawson v. Morgan, 9 B. & C. 618; Koach v. Thumpson, 4 Car. & 1*. 194;
Simpson v. Griffin, 9 Johns. 131 ; Steele v. S.awyer, 2 McCord, 459. In King v. Phil-
lips, Pet. C. C. 350, the question whether the indor.scrs of a bill could recover the costs
of a suit against them was intended to ho submitted to the court, but the court sftid
that it could not arise on the declaration, inasmuch as there was no money count in it

CH. XIV.] RE-EXCHANGE AND OTHER DAMAGES. 663

to this other party, not only tlie face of the paper, hut the
costs of an action against him. We know no authority, how-
ever, which permits him to charge expenses as well as costs.
And undoubtedly the charge of costs would be excluded if the
party accommodated could show that the defence to the suit was
wholly unnecessary and unjustified.

It may be well to remark, that the rate of exchange is some-
times natural and sometimes artificial ; and sometimes it con-
tains both of these elements. Thus, our exchange on England
is never nominally at par, because our statute makes the pound
sterling equal to only four dollars and forty-four cents ; which is
nearly ten per cent less than it is really when paid in gold.
Accordingly, while £ 100 sterling is legally worth only $444, to
pay that sum in London one must pay in New York, if the ex-
change is actually at par, about $484. A recent United States
statute has provided, that, for the purpose of estimating duties
on imported goods, the pound sterling shall be calculated at four
dollars and eighty-four cents, which is about its true value. (m)
But the matter of exchange is left to itself. Merchants regulate
that by adding from nine to ten per cent to the actual rate of
the day (or that which would be the rate if it were determined
by business alone), and thus the buying and selling rate is made.
This is seldom less than eight per cent, for if it falls so low, or
nearly so low, gold comes over from England ; and seldom more
than eleven, for if it rises so high, or near this rate, gold,
instead of bills, is sent to England.

If a foreign creditor sues his debtor in this country, not on a
bill of exchange., many authorities say that he recovers his debt
only at the legal par of exchange, without any allowance or
increase for the rate of exchange, either natural or artificial. (w)

(m) Statute of July 27, 1842, c. 66, 5 U. S. Stats, at Large, 496.

(n) In Martin v. Franklin, 4 Johns. 124, the plaintiffs were merchants in Liverpool,
and it was admitted that the debt was contracted in Great Britain, and that the ac-
counts between the parties are in sterling money. The declaration stated the defend-
ants as being indebted to the plaintiffs in the city of New York. The court held that
■' the debt is to be paid according to the par, and not the rate of exchange. It is re-
coverable and payable here to the plaintiffs or their agent ; and the courts are not to
inquire into the disposition of the debt, after it reaches the hands of the agent. He
may remit the debt to his principal abroad, in bills of excliange, or he may invest it
here on his behalf, or transmit it to some other part of the United States, or to other
countries on the same account. We cannot trace the disposition wliich is to take
place subsequent to the recovery, nor award special damages upon such uncertaiu c«l-

6G-i KOTES A>^D BILLS. [CH. XIV.

But tliis rule would plainly operate injustice to an English cred-
itor, to the amount at least of the difference between the legal
par, or, as it may be called, the artificial par, and the natural
par. For if one owing £ 1,000 in London could pay that in New
York with $ 4,444, the English creditor would lose by the error
of our law the difference between that sum and $4,844, whicli,
because the actual par, is adopted by our country for all pur-
poses of revenue.

culations. All that the plaintiffs can ask is their debt justly liquidated and paid in
the lawful currency of the United States."

In Adams v. Cordis, 8 Pick. 260, the court, citing the above, say that they subscribe
to this doctrine. Of the case of Smith v. Shaw, 2 Wash. C. C. 167, to the contrary,
the court remark, that it is of very little authority, as the point was not stated in argu-
ment, and was settled suddenly by the court without advancing any reason in support
of it. In Lodge v. Spooner, 8 Gray, 160, a certain sum of money was to be paid in
China on the performance of an agreement entered into between the parties. The
plaintiff performed liis part of the contract, and claimed to recover, in atldition to the
original sum and interest, the rate of exchange between this country and Cliina at the
time when the money should have been paid. But tiie court held that he was not en-
titled to the exchange, and evidence that there was no tribunal in Cliina in which one
foreigner could recover of another, and that these funds were to be invested in China,
was held to be inadmissible. In Weed v. Miller, 1 McLean, 423, after reviewing the
autliorities, the court say that, at all events, the rate of exchange is not recoverable on
a note of hand where the declaration lays the venue in the State where the suit is
brouglit, and there is no count nor allegation to cover the difference of exchange,
although tlie difference of exchange may always be recovered on a bill of exchange.
But the rate of exchange may be recovered on a promissory note given in New York,
payable at Detroit, when it is expressly stated to be payable with tiie current rate of
'•xchange. Griitacap v. Woulluise, 2 McLean, 581 ; Scoficld v. Day, 20 Johns. 102.
But, on the other hand, the English decisions and some American decisions are in
favor of allowing a foreign creditor to be paid at the rate of exchange. Scott v. Bevan,
2 B. & Ad. 78 ; Cash v. Kennion, 11 Ves. 314 ; Grant v. Healey, 3 Sumner, .')23. And
see Howard v. Central Bank, 3 Ga. 37.5 ; Bank of Missouri v. Wright, 10 Misso. 719.
In Grant v. Healey, 3 Sumner, 523, Mr. Justice Story, delivcnng the opinion of the
court, said : " I take the general doctrine to be clear, that whenever a (kl>t is made
])ayablc in one country, and it is afterwards sued for in another country, the creditor
is entitled to receive the full sum necessary to replace the money in the country where
it ought to iiavc been pai<l, with interest for the delay; for then, and then only, is ho
fidly indemnified for the violation of the contract. In every such case, tlie plaintiff is,
therefore, entitled to have the debt due to him first ascertained at the ])ar of exchange
between the two countries, and then to have the rate of exchange between those coun-
tries added to, or subtracted from, the amount, as the case may require, in order to re-
place the money in the country where it ouglit to be paid. It seems to mc tliat thig

dcctrine is founded on the true principles of reci])rocal justice It is suggested,

that the case of bills of exchange stands upon a distinct ground, that of usage; and il
»n exception from the general doctrine. I think otherwise."

END OF VOL. I.

?fe^.ti^

C -J

LAW LFRRARY

UNIVERSITY OF (AJJFORNIA

LOS AIMGLLfia

<QuDNvs(n'^ '^jAwn-aift'^

i i

^5^l•llBRAI?Y•Ck.

^lUBRARYiy/

^MtUNIVhW/A

\<^ '^-mwrni^ ^MW3io^ ^^ojiivoio"^ "^JinjDNvsoi^
'% ^iosAMcnf;f^

^OFCAllFORf^

1^5

^OFCAllFORjj^

:5 ,— 'P I' c?

^(?Aflvaan#

' o

^lOSAMCn

1 ?

so 3

^ ^.

>% ^OFCAIIFO;?^

AMFUNIVtRJ/^

, , ^ o

.^WE•UN[VERJ/A.

%a3AiNa]V^^

-5^t-UBKAKYC//^

^VIIBKAKI

# ^(^AMvaan-^ ^i3u3Nvsoi=^ ^/sajAiNiiart^

\Qi\m;

^lOSANCntf^ ^OFCAlIFOft^^ ^.0FCAIIF(

^(^AHvaani'^

^<?AliVMn

^iU)Am,titj^

(1^<^ %aA)N(13V^^

^M^OFCAIIFO;?^ ^OFCAIIFO;?;{^

^^Aaviian# >&AMv«8n#

^^.!fOJIlV0JO>^ '^^OJITVJJO'^ <^J13^NV•S0^^^

^\'rtflNIVERS/A

<f5UDHVS(n=^

"^^saaAiNrti

^•lOSAVCFI

^/SaiMNfli

IS ?

^JTiiDNVsoi^ "'^/jajAiNnmv'

AjNllIKKAHTC^ ^tllBKAH

\^i\mi^^

^tfOilTVD-;

5^/1^ ^OFCAIIFOR'.JI^

^losANcnfj^

^OF CAIIFO/?^^ ^0FCAIIF(

^mwrn"^ ^^msm^ ^omm\^

^ 1 ir^ ^

A5^l•UBKAHK//

^tfOillV>JO>^

li(::,()lMMln^JH|(,|^^JAl i iiii!ai;v i ai:ii iiy

"^i^raDNYW

%a3AINA-3\ft^
^lOSAHCfUr^

^tUBHAKtCZ/r ^t-UBKAKtC;/

^TiuoNYso]'^ '^/smimi^

^OFCAUFOff,)!^^

^OFCAllFOff^

rry

^ /-»«' p I' 5

^iSiojnwjo^ %i3Qiivs(n^

^^^\E•UNIVFIf5/^

<'5UDNVS01'<^

§ 1 ir-' ^

^lifOJIlVJJO'^

^" ^^ ^ #^^^* ■£« — ^ III '^

^^OillVOJO'^ <f?13DNYS0l^

^tfwnv3jo>'

.OFCAllFOffij

^.OFCAIIFO%^

'"^<?Aiivian''#

.^^\EUNlVEns'/A

<f?133KVSOl^

^lOSANcner^

^OFCAlIFOff;^

^ .— 'P I- £?

^>uivuan-#

1J.

o " ^

■%a3AINn-3WV

^lOSANCFl^;^

^ 5

^OFCAllFORij^ ^OFCAUFOff^

^^MF•UN[VEI?S'//^