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the paper. It is not necessary that the waiver be written on the note or bill itself; it may be on a separate piece of paper. A parol waiver is held good by some courts. * Curtiss vs. Martin, 20 MI. 557.
Spencer vs. Harvey, 17 Wend., 489.
DEFENSES TO BILLS AND NOTES.
SECTION 44. CLASSIFICATION OF DEFENSES.
"The defenses interposed by a party to a bill or note in a suit brought by a holder against him are commonly of two classes :
(a) REAL—or those which grow out of some defect inherent in the instrument itself.
(b) PERSONAL—or those which grow out of acts which between privy parties would invalidate the transfer or prevent the enforcement of the instrument, but which do not attach to or invalidate the instrument.” 1
SECTION 45. INCAPACITY OF DEFENDANT TO MAKE
THE INSTRUMENT. The general principle is that the incapacity of the defendant to make the instrument is a real defense, and consequently that it can be successfully maintained even against a bona fide holder for value. At the common law the note of a married woman was void. The same is true of the note of a person who has been adjudged insane.' Before such adjudication, however, such a note is valid in the hands of a bona fide holder for value, and perhaps even in the hands of the first taker, if the contract was a fair one and the person dealing with the lunatic had no knowledge of his incapacity. . This is the classification of • Fitzhugh vs. Wilcox, 12 Barb., The negotiable instruments of an infant are not void, but voidable. It is sometimes said that an infant is bound on a note given in payment for necessary. A more correct statement would probably be that the infant is bound for the reasonable value of the goods for which the note is given. The infant's right to disaffirm his note exists even against a bona fide holder for value.
Professor Ames (2 Ames' Bills and Notes, p. 866), and the • Mutual Life Ins. vs. Hunt, 79 one which has been generally
N. Y., 541. "If no inquisiadopted by recent writers. tion has been found, the See Norton on Bills and Notes,
validity of the bill or note or indorsement depends, first, up
"The bill or note of a corporation and its indorsement thereon is unenforceable except as against a bona fide holder, unless made, given or indorsed for the purposes of its incorporation.
“An indorsement of a corporation transfers title; but except when made for the purposes of its incorporation, and as against a bona fide holder, it subjects the corporation to no liability as an indorser."
SECTION 46. BILLS AND NOTES DECLARED VOID BY
In some cases bills and notes are declared void by statute. An illustration of such a prohibition on the degree of understanding
ed as a defense. But, once possessed by the party sought established, the question of the to be charged. A man of
binding liability of this contract weak mind, if not a lunatic
depends upon the fact whether or & fool, can contract. An
the party dealing with him epileptic or enfeebled mind
knew or did not know that he has been held competent to
was dealing with a lunatic. convey, property: A person
In the absence of anything born deaf and dumb is not
being shown upon the subject, necessarily an idiot. And no
the courts lean to the presumpmere want of business capacity,
tion that the party had this nor even monomania, will in
knowledge. And if be posthe absence of fraud prevent a
sess such knowledge then the party from being bound upon a
bill, note or indorsement as bill, note or indorsement. The between the parties is void, mental incompetency to avoid
and will not be enforced.' such a contract must amount
Norton on Bills and Notes, to inability to understand the
Sec. 98. nature of the contract, and to • Howard vs. Simpkins, 70 Ga., appreciate its probable conse
322. quences; and this only, upon • Norton on Bills and Notes, Soc. being established, will be allow
is found in the statute of 9 Anne, Chap. 14, Sec. 1, which provided that “all notes, where the whole or any part of the consideration is money knowingly lent for gaming, shall be void to all intents and purposes whatever."
The most common illustrations of this class of statutory provisions at the present time are those relating to usurious negotiable instruments.
A note declared void by statute cannot be recovered on, even by a bona fide holder for value.' This rule does not apply, however, when the statute merely declares the consideration to be illegal."
SECTION 47. FORGERY AND ALTERATION OF INSTRU
MENT. A forged instrument, not being the contract of the party alleged to have made it, can, of course, confer no rights upon any person, with the single exception that the alleged maker may become liable to a bona fide holder through the application of the doctrine of estoppel.
The material alteration, whether made with fraudulent intent or not, of a negotiable instrument destroys the identity of the contract, and releases any party thereto who does not consent to such alteration."
An immaterial alteration, i. e., one which does not change the tenor of the instrument, does not avoid it.
SECTION 48. FRAUD AND DURESS. Fraud and duress are both personal defenses to a bill or note and cannot be set up against bona fide • See Statutes of several States. * Rockwell vs. Charles, 2 Hill (N. Bowyer vs. Bampton, 2 Strange,
Y.), 499. 1155.
• Wood . vs. Steele, 6 Wall., 80;
Booth ve. Powers, 56 N. Y., 22. Vol. IX.-5