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payable in “current funds," or good " bank-notes,” or “current bank-notes," this should not be sufficient on general principles ; some courts, however, construe this as meaning notes convertible on demand into money, and therefore as the same thing as money, and call the note negotiable.
A bill or note may be written upon any paper or proper substitute for it, in any language, in ink or pencil. A name may be signed or indorsed by a mark; and, though usually written at the bottom, it may be sufficient if written in the body of the note; as, “I, A B, promise,” &c.; unless it can be shown that the note was incomplete, and was intended to ! finished by signature. If not dated, it will be considered as dated when it was made; but a written date is prima facic evidence (this means evidence which may be overcome by opposite and better evidence, but until so overcome is sufficient) of the time of making. The amount is usually written in bgures at the corner or bottom. If the sum is written at length in the body, and also in figures at the corner, the written words control the figures, and evidence is not admissible to show that he figures were right and the words inaccurate. But in an American case, a promissory note, expressed to be for "thee Jundred dollars,” and in figures in the margin, $300, was held .0 be a good note for three hundred dollars, if the maker when te signed it intended “three” when he wrote “thee;" and whether such was his intention was a question for the jury And the omission of such a word as "dollars," or "pounds," on “sterling,” may be supplied, if the meaning of the instrument is quite clear.
It has been just said that any contingency apparent on the Lice of the instrument prevents it from being a negotiable notra llence it is not safe to write in the body of the note, ur in connection with the promise, any condition or contingency. Hut, if what is so written in no way affects the promise itself, tie note may still be negotiable.
Thus, in some parts of this country, persons who sell a Machine, or other thing, on a credit, sometimes take a promis. sory note payable to the seller or order, and containing an
additional clause, providing, that, until the note is paid, the property in the thing sold (or the ownership of it) shall be and remain in the seller. Such notes are often made in the following form:
(67.) Form of a Note given for a Chattel sold, with a Condition preserving the Ownership of the Seller.
(Place and date) 19 On the
19 I of County of
and State of promise to pay
dollars at the First National Bank in
with interest at per cent. per annum until paid. And it is further agreed that the title to the (reaper) for which this note is given shall remain in said (the seller) until this note is fully paid.
Value received (Witness.)
On the back of this note is sometimes the following state. ment:
Statement made for the Purpose of obtaining Credii. I own
acres of land in my own name in the Town of County of and State of
which is worth at a fair valuation, $ It is not incumbered by mortgage or otherwise, except the amount of
and the title is perfect in me in all respects. I have stock and personal property to the amount of $
over and above my debts and liabilities.
The above property being worth over and above my debts, liabilities, and exemptions at least five times the amount of the within note.
The question has arisen whether such a note is negotiable. Suppose the seller of the chattel, who is payee of the note, sells the note and indorses it for value to an innocent indorsee; then the buyer finds that he was cheated, and puts in this defence of fraud when he is sued on the note by the indorser. He can make this defence if this note be not negotiable; but he cannot make it if it be negotiable. I should say it was negotiable; and that the only effect of the condition or provision annexed to the promise, was, that it operated much as a mortgage of the thing, by the buyer, back to the seller, to secure the payment. In some States such a note must be recorded like a chattel mortgage.
2. THE PAYEE MUST BE DESIGNATED.—The payee should be
distinctly named, unless the bill or note be made payable to bearer. If it can be gathered from the instrument, by a reasonable or necessary construction, who is the payce, that is enough. The note may be made payable to the promisor or his order; that is, a man may say, I promise to pay to my own order; and such note is nothing until the promisor not only signs it, but indorses it.
A note indorsed in blank is always transferable by delivery, just as if it were made payable to bearer; because any holder may write over the indorsement an order to pay to himself. Indorsements are either indorsements in blauk, by which is meant the name of the indorser and nothing more, or indorsements in full, which are so called when over the name of the indorser is written, “pay to A B." (By A B we mean the name of the person to whom the note or bill is indorsed.) These two kinds of indorsements are fully explained subsequently in section VI. of this chapter. A note to the order of the promisor himself, and indorsed by him in blank, is therefore much the same thing as a note to bearer. But it is quite commonly used in our mercantile cities, because the holder can always pass it away without indorsing if he chooses, or can put his name on it as second indorser if he likes to. If the indorsee be named, and the note get into the possession of the wrong person of the same name, this person neither has nor can give a title to it. If the name be spelt wrong, evidence of intention is receivable. If a father and son have the same name, and either of them has possession of the note and indorses it, this. would be evidence of his rightful ownership.
If neither payable to bearer, nor to the maker's or drawer's order, nor to any other person, it would be an incomplete and invalid instrument.
A note to a fictitious payee, with the same name indorsed by the maker, would undoubtedly be held to be the maker's own note, either payable to bearer, or to himself or order, by another name, and so indorsed. If a blank be left in a bill for the payee's name, a bond fide holder may fill it with his own, the issuing of the bill in blank being an authority to a bonå fide bolder to insert the name. And if the name of the payee be
not the name of a person, as if it be the name of a ship, the instrument is payable to bearer. A note payable to different persons in the alternative, that is, to one or the other of them, is not a good promissory note. A bill or note “to the order of" any person is the same as if to him "or his order," and may be sued by him without indorsement.
3. Of AMBIGUOUS AND IRREGULAR INSTRUMENTS.—The law in relation to protest and damages makes it sometimes import ant to distinguish between a promissory note and a bill of exchange, because, by law, a foreign bill of exchange, if unpaid, should be protested, but not a promissory note ; but it is a common practice to protest promissory notes when they are not paid. The rule in general is, that, if an instrument be so ambiguous in its terms that it cannot be certainly pronounced one of these o the exclusion of the other, the holder may elect and treat it es either. As if written, “ Value received, in three months from late, pay the order of H. L. $500. (Signed) A. B.;” and an address or memorandum at the bottom, “At Messrs. E. F. & Co.”
4. Of BANK-NOTES.-Bank-notes or bank-bills are promissory notes of a bank, payable to bearer; and, like all notes to bearer, the property in them passes by delivery. They are intended to be used as money; and, while a finder, or one who steals them, has no title himself against the owner, stili, if he passes them away to a bonâ fide holder, that is, a holder for value without notice or knowledge, such owner holds them against the original owner. And if the bank pays them in good faith on regular presentment, the owner has no claim. They pass by a will bequeathing money. They are a good tender, unless objected to at the time because not money. Forged bills, given in payment, are a mere nullity. Bills of a bank which has failed, but of which the failure is unknown to both parties, are now, generally, put on the footing of forged or void bills. But if the receiver of them, by holding them, and by a delay of returning or giving them up, injures the payer and impairs his opportunity or means of idemnity, the receiver must then lose them.
5. OF CHECKS ON BANKS.—A check on a bank is undoubt. edly a bill of exchange ; but usage and the nature of the case
have introduced some important qualifications of the general Law of bills in its application to checks. A check requires no acceptance, because a bank, after a customary or reasonable time has elapsed since deposit, and while still in possession of funds, is bound to pay the checks of the depositors. The drawer of a check is not a surety, as is the drawer of a bill, but a prin. cipal debtor, like the maker of a note. Nor can a drawer com . plain of any delay whatever in the presentment; for it is an absolute appropriation, as between the drawer and the holder, to the holder of so much money in the banker's hands ; there it may lie at the holder's pleasure. But delay is at the holder's risk; for if the bank fails after he could have got his money on the check, the loss is his. If the bank before he presents his check pay out all the money of the drawer on other checks, he may then look to the drawer.
If one who holds a check as payee, or otherwise, transfers it to another, he has a right to insist that the check shall be presented in the course of the banking hours of that day, or at farthest the next; that is, he is not responsible for the failure of the bank to pay, unless it is so presented, provided it would then have been paid. And if the party receiving the check live elsewhere than where the bank is, it seems that he should send it for collection the next day; and if to an agent, the agent should present it, at latest, in the course of the day after he received it. If the check be drawn when the drawer neither has funds in the bank, nor has made any arrangement by which he has a right to draw the check, the drawing it is a fraud, and the holder may bring his action at once against the drawer, without presentment or notice.
Checks are seldom accepted. But they are often marked by the bank as good, and this binds the bank as an acceptor.
Checks are often payable to bearer, but more frequently are drawn payable to a payee or his order; for this guards against loss or theft, because the check will not be paid unless the payee writes his name on it; and it gives to the drawer, when the check is paid and returned by the bank to him, what is the same as the receipt of the payee. Generally, a check is not payment until it is cashed; then it is payment if the money was paid to