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“With interest" may be added if that is agreed upon, otherwise it bears no interest until after it is due. So it may be “on demand," in which case it bears no interest until after demand is made; "after date” or “from date," should be written, although the law would supply these words.
If the note be signed by more than one person, all the signers, whether the note says “I promise" or "We promise,” are liable jointly; but in the latter case only jointly and not jointly and severally unless the note says so.
Generally speaking, notes are not made payable at any particular place. But they may be made payable at any bank, or the promisor's own house or office, or wherever else he chooses. The effect of making a note payable at a certain place is this: In this country neither a promissory note nor a bill of exchange, drawn payable at a certain place, nor a bill accepted payable at a certain place, need be presented at that place in order to sus. tain an action against the maker of a note or the acceptor of the bill; but he may show, by way of defence, that he was ready at that place with funds to pay the note or bill, and then he will escape all damages and interest. And if he can show a positive loss from the want of such presentment, — as, for instance, by the subsequent failure of a bank where he had placed funds to meet the note or bill, — he will be discharged from his liability on the paper to the amount of the loss. But the drawees of the bill and the indorsers of the bill or note are discharged by a neglect to demand payment at such specified place.
In some States, Indiana, for example, it is customary to add "without relief from valuation and appraisement laws"; and also, “if the note is not paid at maturity five per cent. shall be added and collected as attorney's fees.”
If the note be secured by mortgage, coupon notes are sometimes attached, each of which is for six months' interest; and also a power of attorney to some attorney to confess judgment. We give below a full Form for such additions to a note of hand, given in Chicago to a lender in Boston :
CHICAGO, ILLINOIS, May 8th, 1900,
or order, the principal sum of Two
Thousand Dollars, with interest thereon at the rate of Ten(10) per cent per annum, payable semi-annually, on the 8th days of November and May, in each and every year until said principal sum is fully paid, both principal and interest payable at the office of Boston, Massachusetts.
The several installments of interest aforesaid for said period of Three (3) years are further evidenced by Six (6) interest notes of even date fierewith.
And I agree that if default be made on the payment of any one of the interest installments at the time and place the same become due as above, and if said default shall continue for twenty days thereafter, then if the legal holder or holders of the principal note shall so elect, at any time after said twenty days, the principal sum of Two Thousand Dollars shall at once and without notice of such election made, become due and payable.
This note is secured by Trust Deed. Know all Men by these Presents, That whereas I, the subscriber, am justly indebted upon a certain Promissory Note of even date herewith, due in Three (3) years after date to or order, for the sum of Two Thousand (2,000) Dollars, with interest at the rate of Ten (10) per cent. per annum, payable semi-annually on the Eighth (8th) days of November and May, in each and every year until said principal sum is paid, and interest evidenced by Six (6) Interest Coupon Notes of even date, both principal and interest payable at the office
Boston, Massachusetts. And whereas the said principal note contains an agreement that if default be made in the payment of any one of the interest installments at the time and place the same becomes due, and if the said default shall continue for twenty days thereafter, then, if the legal holder or holders of said principal note shall so elect at any time after said twenty days, the principal sum of Two Chousand (2,000) Dollars shall at once, and without notice of election made, become due and payable.
Now Therefore, in consideration of the premises, I do hereby make, constitute, and appoint
, or any Aitorney of Court of Record, to be my true and lawful attorney irrevocably for me in my name, place, and stead, to appear in any Court of Record in term-time or vacation, in any of the States or Territories of the United States, at any time after said note, according to its tenor therein set forth, or the interest thereon becomes payable, to waive service of process, accept a declaration and confess judgment in favor of the said
or his assigns upon said note for the sum of Two Thousand (2,000) Dollars and interest unpaid, at the rate therein mentioned, up to the day of said judgment, together with costs and Thirty (30) Dollars attorney's fees. And also to file a cognovit for the said amount and interest, with an agreement therein that no writ of error or appeal shall be prosecuted upon the judgment entered by virtue hereof, or any Bill of Equity filed to
interfere with the operation of said judgment, and to release all errors that intervene in the entering up of said judgment or issuing execution thereon, and to consent to immediate execution upon said judgment. Hereby ratifying and confirming all that my said Attorney may do by virtue hereof.
Witness my hand and seal, this Eighth (8th) day of May, A. D. one thousand nine hundred In Presence of
CHICAGO, ILLINOIS, May 8th, 1900. Due to
or order, One Hundred Dollars on the 8th day of November, A. D. 1900, without grace, at the office of
Boston, Massachusetts, with interest at the rate of ten per cent. per annum after maturity, being for an installment of interest due on that day upon my principal promissory note of even date herewith, payable to or order, three (3) years after its date, for the sum of Two Thousand (2,000) Dollars secured by trust deed. In consideration of the premises, I do hereby make and appoint.
or any other Attorney of any Court of Record in the United States of America, to be my true and lawful Attorney for me in my name, place, and stead, to appear in any Court of Record in term-time or vacation, in any State, District, or Territory of the United States, at any time after this interest coupon becomes due, to waive service of process, accept a declaration, and confess a judgment in favor of the legal holder hereof for the amount due and unpaid hereon, with interest as aforesaid to the day of entering such judgment, together with costs, and twenty dollars for the attorney's fee, and to file a cognovit for such amounts, with an agreement therein that execution may issue forthwith, and that no writ of error or appeal shall be prosecuted upon such judgment, nor any Bill in Equity filed to interfere in any manner with the operation of said judgment, and to release all errors that may intervene in the entering up saja judgment and issuing the execution thereon.
Hereby ratifying and confirming all that my said attorney may do by virtue hereof. No protest.
Five other coupon notes for interest are added.
It is quite important to have a clear idea of the difference between the parties to a note, and the parties to a bill of exchange. If A makes a note to B, then A promises to pay, and is the promisor, and B is the promisee, or payee. But if it be payable to B or order, B may write his name across the back, that is, may indorse it, and is an indorser. And if he directs, over his signature on the back, that the note be paid to any person in particular, such payee is now an indorsee. But wher
a bill is drawn, nobody promises, in words, to pay it. A orders B to pay to C. If B, when requested, says he will not do as ordered, the law supposes A, the drawer, to have promised that he would pay if B did not. If B “accepts,'
If B “accepts,” the law now supposes that B promises C to pay the bill to him. Now B, being the acceptor, is held by the law just as a maker of a note is, because he is supposed to have promised in the same way. A, the drawer, is held just as the first indorser of a note is held, because he is supposed to have promised to pay if B did not. If the bill was negotiable, that is, payable to C, or his order, then C may indorse the bill, and although his name is the only one on the back of the bill, he is treated in law only as second indorser, because the drawer is bound in the same way as a first indorser. And if D then puts his name below C's, he is treated as third indorser, and so on. For the rights, obligations, and duties of all these parties, see the subsequent sections.
We repeat, that a negotiable promissory note is a written promise to pay to a certain person or his order, or to bearer, at a certain time, a certain sum of money; and he who signs this is called the Maker or the Promisor; the other party is the Promisee or Payee. The payee of such a note has the same power of indorsement as the payee of a bill of exchange. If the note be not payable " to order," nor to "bearer," it is then not negotiable; these words “or order” or “to bearer" being the words which make it negotiable. The maker of a negotiable note holds, as has been said, the same position as the acceptor of a bill, the drawer the same as the first indorser of a note: that is, a party holding a note and seeking payment of it looks first to the maker, and then to the indorser; one holding a bill looks first to the drawee or acceptor, and, on his failure, to the drawer.
Neither indorsement, nor acceptance, nor making, is complete until delivery and reception of the bill, or note, or acceptance; and a defendant may show that there was no legal delivery of the paper.
The law of negotiable paper first defines a bill or note, and determines what instruments come under these names, and then describes and ascertains the duties and obligations of all the parties we have named above. We shall follow this order.
WHAT IS ESSENTIAL TO A NEGOTIABLE NOTE OR AILLE
A WRITTEN order or promise may be perfectly valid as a written contract or promise, but, although made “to order," will not be negotiable, unless certain requisites of the law-merchant are complied with.
The difference between a note that is negotiable and one that is not, is very important in many respects. One of theste is as to the operation of the trustee process, or foreign attach: ment, or garnishee process, as it is sometimes called. lia owes B a hundred dollars, C, a creditor of B, may trustee A and A must then pay to C what he owes to B. And this is so, even if A have given his note to B for the hundred dollars, if the note be not negotiable, that is, not to B or order, unless A has actual notice that the note has been assigned for value to a third person. But if the note be negotiable and not overdue, A cannot be trusteed. The reason is, that if he is obliged to pay the money to C, and B should indorse the note to D for value, and D take it honestly, A must pay the note to D, and so would have to pay it twice. But if the note is not negotia. ble, B cannot indorse it, and A is safe in paying the money over.
1. The PROMISE MUST BE ABSOLUTE AND DEFINITE.—The promise of the note, and the order of the bill, must be absolute. "Nords expressive of intention only do not make a promissory note, and a mere request without an order does not make a bill of exchange. But no one word, and no set of words, are abso. lutely necessary; for if from all the language the distinct promise or positive order can be interred, that is sufficient.
The time of payment is usually written in a bill or note; if not, it is payable on demand. The time of payment must not depend on a contingency. In fact, any contingency apparent on the face of the instrument prevents it from being a negotiable ncte; and the happening of the contingency does not cure it. And the payment promised or ordered must be of a definite sum of money.
A negotiable bill of exchange or promissory note must be payable in money only, and not in goods or merchandise, or property of any kind, or by the performance of any act. If