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cannot, independently of statute, sue the maker or drawer." 26 27
In the case of Arnold vs. Sprague the Court said: “It is not essential to the validity of a bill of exchange or promissory note that it should be negotiable. The advantages arising from the negotiability of such instruments were originally the reason why they were held to be exceptions to the general rule of the common law that cases in action were not assignable; hence it was once considered that negotiability was essential to such instruments. But for a long time, both in this country and in England, it has been held, and is now settled law, that they need not be negotiable.”
SECTION 10. CONSIDERATION. Between the immediate parties a consideration is as necessary in the case of a bill or note as in the case of any other kind of contract.? One who signs or indorses a note after it has been negotiated does not incur any liability, unless there is some other consideration.30 Bills and notes, however, are presumed to be given for a consideration, and the burden of proof is on the party alleging the contrary.51
A Circuit court of the United States said on this point in Lipsmeier vs. Vehslage :32
“This suit is based on a promissory note negotiable in form. The plaintiff sues as indorsee of said note. The ordinary rule of law governing paper of this kind is that it imports on its face a consideration, * Davis vs. Helm, 34 Mo. App., 332. Good vs. Martin, 95 U. S., 90; 97 Am. & Eng. Ency. of Law, Vol.
Harwood vs. Kiersted, 20 mn., IV, page 80. * 34 Vt., 402.
81 Bristol vs. Warner, 19 Conn., 7; » Boutell vs. Cowding, 9 Mass., 254;
Whitney vs. Clary, 145 Mass.,
31 29 Fed. Rep., 175,
in other words, that the party who gave the note entered into an obligation to pay the same, for pecuniary reasons, whereby the payee would be entitled to recover on the face of the paper. This note was transferred, as admitted, after maturity. If it had been transferred for value, to an innocent party, before maturity, the defenses that are submitted to you would not be considered. But it so happens, admittedly, that this note was transferred long after maturity; consequently you are to determine the respective rights of the parties as if Mr. Beckerman, the payee in the note, himself was suing here. In other words, the equities of the original transaction are open for inquiry.
“This note was given, it seems, February 1, 1878, negotiable by its terms—a note payable in one year, and transferred long thereafter to this plaintiff. Some very nice questions have been presented to the court, under the statute of the United States, as to the jurisdiction of this tribunal, concerning which, in the present aspect of the case, it is unnecessary to trouble you. The court decides that the party is rightfully in court, and consequently the matter is submitted to you, and the questions of fact are
"First, was there any consideration for this note? If not, you must find for the defendant. But the duty of showing that there was no consideration rests on the defendant. Notes of this character import consideration. In other words, the plaintiff is not bound to prove that the note was given for consideration, because, when a party signs paper of this kind, he admits, impliedly, that there was a good reason for so doing—a valid reason. Consequently the burden is cast upon the defendant to show that there was no consideration. Notes sometimes may be given for the accommodation of the payee, or for any other than valid reasons. If so, it being the nature of a gift, the mere voluntary act from one to another, there is no obligation in law, if he chooses not to pay the note, for him so to do, by judicial process."
SECTION 11. DELIVERY. No contract is made and no rights are created upon a bill of exchange or promissory note until its delivery. The delivery of such bill or note is included in its making. Until delivery a bill or note is revocable and unenforceable.36 By delivery is meant a transfer of the possession of the instrument with intent to transfer the title thereto, and the acceptance thereof with the intention of receiving title 38
SECTION 12. DAYS OF GRACE. "Days of grace are days added to the nominal time of payment of all bills or notes except those impliedly or expressly payable on demand, and are computed by excluding the day of date and including the day of payment.
Days of grace were originally only allowed to the drawee of a foreign bill to allow him to provide funds for its payment. They were later extended by the common law to other forms of negotiable instruments, but have now been very largely abolished by statute. Dexter Savings Bank vs. Cope- * Am. & Eng. Ency. of Law, Vol. land, 77 Me., 263.
IV, page 202; Kinne vs. Ford, » Mitchell vs. Conley, 13 Ark., 414.
52 Barb. (N. Y.), 194; Curtis * Hinsdale College vs. Thomas, 40 vs. Gorman, 19 n., 141.
Wis., 661; Roberts V8. Mc- 37 Norton on Bills and Notes, Sec. Grath, 38 Wis., 52.
ACCEPTANCE OF BILLS OF EXCHANGE.
SECTION 13. IN GENERAL. The acceptance of a bill of exchange is an agreement generally on the part of the drawee, but sometimes on the part of some other party, to pay the bill absolutely according to its tenor, or according to special terms contained in the contract of acceptance.' The holder of a bill has the right to demand a general and unqualified acceptance in writing upon the bill itself, and may refuse to accept any qualified acceptance.
"Where a draft is given directing the drawee to pay absolutely a sum of money to the payee it is the right of the payee to have an unconditional and unqualified acceptance of the same; and if he chooses, without the consent of the drawer, to take a conditional, limited, or qualified acceptance of the draft, he thereby releases the drawer from all liability on the draft.” :
SECTION 14. LIABILITY OF ACCEPTOR AND DRAWER.
The drawer of a bill is under no legal obligation to accept the bill, even if he is indebted to the drawer to the amount of the bill, or has funds of the drawer in his possession to that amount, unless he has for a valuable consideration expressly“ or impliedly“ agreed · Cox vs. National Bank, 100 U. • Helm vs. Meyer, 30 La. Ann., 943. S., 712; Clark vs. Cock, 4 East,
Where funds are sent to a per57.
son for the purpose of meeting • Gibson vs. Smith, 75 Ga., 33.
a bill drawn upon him, and he • See Chitty on Bills, 28.
retains same without objection • Laing vs. Barclay, I. B. & C.,
or promise to accept, it will be 398; 83 C. L., 170.
to accept it. When a drawee has thus agreed to accept a bill he is liable in damages for the breach of his contract,the measure of damage being the inconvenience and loss caused to the drawer by the drawee's failure to accept.'
Upon acceptance the drawer, now the acceptor, becomes the principal debtor and the party primarily liable for the payment of the bill. The liability towards the holder, of the acceptor of a bill of exchange, is the same as that of the maker of a promissory note, and is governed by the same rules.
The acceptance of a bill by the drawee admits everything essentially to the validity of a bill,10 including the existence of the drawer, the genuineness of signatures," the inviolacy of the body of the bill, " the capacity of the parties, 's the authority of the parties," and that there were funds of the drawer in the hands of the acceptor.15 None of the facts thus admitted can be disputed in a suit by a bona fide holder for value, but as between the immediate parties to the instrument the true state of facts can be shown.
SECTION 15. WHO MAY ACCEPT. Except in the case of an acceptance supra protest, the acceptance must be made by the drawee of the bill, and acceptance by any other person is not permitted under the law merchant. An acceptance by the suc
vs. Lindsay, 7 Cranch (U. 11 Bank of Commerce V8. Union 500.
Bank, 3 N. Y., 230. " Prehn vs. Royal Barb L, R., 5 19 Ward vs. Allen, 2 Met. (Mass.), Exch., 92.
53. • Matter of Babcock, 3 Story (U. 1 Drayton vs. Dale, 2 B. & C., 293; S.), 399; Diversey vs. Moar, 22
9 E. C. L., 91. II., 331; 74 Am. Dec., 157; · Belknap vs. Davis, 19 Me., 455.
Marsh vs. Law, 55 Ind., 271. 16 Byrd vs. Arkansas, 7 Ark., 321; Capital City Ins. Co. vs. Quinn, Gillihan vs. Myers, 31 IN., 525. 73 Ala., 558.
10 May vs. Kelly, 27 Ala.,' 477; 10 Jarvis vs. Wilson, 46 Conn., 90;
Heevan vs. Nash, 8 Minn., 407; 33 Am. Rep., 18.
83 Am. Dec., 790.