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CHAPTER V.

LIABILITIES OF PARTIES.

SECTION 23. IN GENERAL. The liabilities of the drawer and acceptor of a bill have already been considered. The liabilities of the other parties to bills of exchange and promissory notes will be taken up in the following sections.

SECTION 24. THE MAKER OF A PROMISSORY NOTE.

The contract of the maker of a promissory note is the simplest of all the various contracts of the different parties to bills of exchange or promissory notes. The maker of a note is the party primarily liable thereon, and his contract is to pay it according to its tenor. When there are two or more makers to a note, their liability is joint or several according to the wording of the instrument. The maker of the negotiable promissory note, by making it, admits the existence of the payee, and his capacity to indorse the note.

“Where the maker of a note draws it payable to a real person, and forges his indorsement, and puts the note into circulation, in an action by a bona fide holder against the maker proof of the indorsement is unnecessary; the maker will be estopped from saying it was not genuine.” 6

i See Section 14.
• Chalmers, Bills of Exchange, Art.

88; Walton Vs. Mascoll, 13
M. & W.,

452.

Am. & Eng. Ency, of Law Vo

IV, p. 474. • Walke vs. Kuhne, 109 Ind., 313. • Meacher vs. Fort, 3 Hill L. (8.

Car.), 227.

SECTION 25. LIABILITY OF INDORSERS. The modern doctrine as to the liability of indorsers is a comparatively recent development in the law.

“The principle that the indorser of a bill of exchange may be held liable thereon when the paper is dishonored was apparently not generally accepted as a part of the custom of merchants when Marius published the second edition of his book (1670). It was shortly accepted, however, by the law courts. This event is worthy of more than passing notice.

"In Claxton vs. Swift (1685), the chief justice thought liability of the indorser might be deduced from principles of equity. The indorser is chargeable because, if he makes an indorsement upon a bad bill, it is equity and good conscience that the indorsee may resort to him to make it good.

"In Sir Bartholomew Shower's report of this case, we find the able argument made by himself in favor of charging the indorser after the drawer had been successfully sued, but without satisfaction of the judgment. Among other things, in the course of this argument, it was said:

'The necessity of trade and commerce, and the usefulness and convenience of transferring money by bills of exchange, has introduced the same; and the civil law allowing them in other nations has occasioned their approbation here; and amongst them the rule is, ubi literae excambii non habuerunt effectum, duret prima obligatio, and I think the same rule ought to hold with us. This and every indorsement is as a new bill of exchange, and has all the requisites and parties that a bill has,

and a man that has a bill indorsed has, as it were, two bills for the same sum; • 3 Mod., 86; 2 Show, 494.

and it is most true this action is not joint, and cannot be brought both against the drawer and indorser, for that the assumptions are at several times, and upon distinct considerations. All of the judges, however, except the chief justice, concurred in giving judgment for the defendant; but this decision was subsequently reversed in the Exchequer Chamber. The point for which Shower contended was thus accepted as law.?

“The reason assigned for fixing liability upon the indorser is that by writing the indorsement he virtually and in fact draws a new bill. It will be perceived that this reasoning applies to the indorsement of a bill not containing words of negotiability as well as to those made payable to order or bearer. Accordingly, if a bill or note is made payable to B, without more, and B indorses this instrument to C, the latter, upon nonpayment of the bill, can sue his indorser, though of course he has no right of action against the party primarily liable, for the reason that the contract is not transferable by its terms." 8 9

The liability of the indorser in case of the dishonor of the bill or note is now settled beyond dispute. It is also settled that the obligation of the surety is a new and independent contract subject to the law of the place where the contract is made.10

The indorser is not released by the invalidity of the instrument."

The nature of the obligation of an indorser is very different from that of a surety. The surety's obligation is not an independent contract, but is Claxton vs. Swift, 1 Lutw., 878, Aymar vs. Sheldon, 12 Wend.

10

(N. Y.), 439; National Bank • Hodges VB. Steward (1691), 1

vs. Green, 33 Iowa, 140. Salk, 125.

11 Morford vs. Davis, 28 N. Y., 481; • Street's Foundations of Legal

Neil's Succession, 24 La. Ann., Liability, Vol. II, pp. 376–7.

882b.

139.

identical with that of the maker, and ordinarily whatever defenses the principal succeeds in making inure to the benefit of the surety. But the obligation of the indorser is a new and separate contract, which may be valid and subsisting although the contracts of the other parties to the instrument be totally void. So distinct are the contracts of the maker and the indorser of a note, that, in the absence of statute, they cannot be joined in the same action." 12

SECTION 26. INDORSER WITHOUT RECOURSE.

An indorser without recourse is liable only on the warranties held to be made by all transferers," and on his misrepresentations." SECTION 27. LIABILITY OF ACCOMMODATION PARTIES.

The accommodation party to a bill or note may hold the position either of maker, drawer, or indorser. To all persons except the person accommodated the accommodation maker or indorser is liable to the same extent as if he was a maker or indorser for a consideration. Knowledge of the mere want of consideration between the original parties is not sufficient to prevent a purchaser from becoming a bona fide holder.16 The accommodation party is of course never liable to the accommodated party, no matter what their respective relations upon the paper may appear to be; and if the accommodation party is compelled to pay the bill or note he has a right of recovery against the accommodated party. 1 Am. & Eng. Ency. of Law, Vol. u Harton vs. Scales. Minor (Ala.),

IV, p. 478. Hannum vs. Richardson, 48 Vt., 1s Palmer vs. Field, 76 Hun., 229; 508.

27 N. Y. Supp., 736.

166.

CHAPTER VI.

TRANSFER OF NEGOTIABLE INSTRUMENTS AND THE RIGHTS OF BONA FIDE

HOLDERS FOR VALUE.

SECTION 28. TRANSFERS. The transfer of a bill or note is either the assignment or devolution of the right to its enforcement. The four methods of transfer are: (1) by assignment; (2) by operation of law; (3) by indorsement; (4) by delivery.

A transfer by assignment takes place where the transfer is made by a separate writing. The peculiarities of the law governing indorsement do not apply in the case of assignments, and the assignee merely steps into the place of the assignor.?

Title passes by operation of law in the following cases :

(a) "The death of the holder, where the title vests in his personal representative, or

(b) “The bankruptcy of the holder, where the title vests in his assignee, or

(c) "In some jurisdictions, where the holder is an unmarried woman, on her subsequent marriage the title vests in her husband, or

(d) "In some jurisdictions the title to a bill or note transferred to a married woman vests in her husband, or

(e) "Upon the death of a joint payee or indorsee · Norton on Bills and Notes, Sec.

Kleeman V8. Friskie, 63 III.

482; Willis vs. Trambly 13 • Littlefield vs. Bank, 97 N. J., 581;

Mass., 204.

84.

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