there is some authority to the contrary,30 the better rule is that the time, manner, and sufficiency of the demand for payment, protest, and notice of dishonor are governed by the law of the place where the bill or note is payable.1 Thus, the general rule is that the law of the place where commercial paper is payable determines the time within which notice of its dishonor should be given.32 So, the question as to when a note matures, which may involve days of grace, is to be determined by the law of the place of performance, rather than of the place of the indorsement, in determining whether presentment of the note to the maker was made in due time.3 However, there is some conflict of opinion as to what law governs the time and sufficiency of the notice of dishonor, there being a considerable number 30. Musson v. Lake, 4 How. (U. S.) 262, 11 L. ed. 967; Warner v. Citizens' Bank. 6 S. D. 152, 60 NW 746. See also infra text and note 34. [a] Reason for minority rule see Guernsey v. Imperial Bank, 188 Fed. 300, 110 CCA 278, 40 LRANS 377 infra notes 31 [c]; 34 [a]. 31. U. S.-Pierce v. Indseth, 106 U. S. 546, 1 SCt 418, 27 L. ed. 254; Wiseman v. Chiappella, 23 How. 368, 16 L. ed. 466; Guernsey v. Imperial Bank, 188 Fed. 300, 110 CCA 278, 40 LRANS 377; Neederer v. Barber, 17 F. Cas. No. 10,079. Ala.-Todd v. Neal, 49 Ala. 266. 189. Conn.-Gleason v. Thayer, 87 Conn. 248, 87 A 790, AhnCas1915B 1069. Ill-Wooley v. Lyon, 117 Ill. 244, 6 NE 885, 57 AmR 867 [overr by implication Belford v. Bangs, 15 Ill. A. 76]. Ind.-Brown v. Jones, 125 Ind. 375, 25 NE 452, 21 AmSR 227. Iowa. Chatham Bank v. Allison, 15 Iowa 357. Compare Allen v Harrah, 30 Iowa 363; Thorp v. Craig, 10 Iowa 461. Ky.-McClane v. Fitch, 4 B. Mon. 599. La.-Tickner v. Roberts, 11 La. 14, 30 AmD 706 (where the bill was payable in the state of Alabama, and as the form of the protest did not comply with the law of that state, it was held to be inadmissible by the courts of Louisiana). 26. Me.-Orono Bank v. Wood, 49 Me. Mass.-Shoe, etc., Nat. Bank v. Wood, 142 Mass. 563, 8 NE 753. Miss. Chew v. Read, 19 Miss. 182; Ellis v. Commercial Bank, 8 Miss. 294, 40 AmD 63. Mo.-Kentucky Commercial Bank v. Barksdale, 36 Mo. 563. N. H.-Carter v. Burley, 9 N. H. 558. N. Y.-Ross v. Bedell, 12 N. Y. Pa.-Spearman v. Ward, 114 Pa. Eng.-Hirschfeld v. Smith, L. R. 1 C. P. 340 (holding that on a bill indorsed in England and payable in France the sufficiency and reasonableness of the notice were determined by the law of France); Rothschild v. Currie, 1 Q. B. 43, 41 ECL 428, 113 Reprint 1045. Que. Bank of America v. Copeland, 4 Montr. Leg. N. 154. [a] Illustration.-Where notes were made and indorsed in New York city and were payable there, and the indorser resided out of the state, demand for payment and notice of dishonor must be made and given according to the laws of the state of New York. University Press v. Williams, 28 Misc. 52, 59 NYS 817 [rev on other grounds 48 App. Div. 188, 62 NYS 986]. 33 of decisions holding that the sufficiency of notice of dishonor is governed by the law of the place where the bill was drawn or where the bill or note was transferred, as the case may be.34 This rule that the notice of dishonor is governed by the law of the place of indorsement is based on obiter dictum in an early decision in New York.35 [§ 180] 13. Necessity of Suing Primary Obligor. The necessity of suing the acceptor of a bill, or the maker of a note, as a condition precedent to suing the drawer or the indorser, is governed by the law of the place where the bill was drawn or indorsed or the note was indorsed 36 unless the circumstances show that the parties intended to be governed by some other law.37 In any event, the law of the forum does not govern.38 Ill-Wooley v. Lyon, 117 Ill. 244, 6 NE 885, 57 AmR 867. Ind.-Brown v. Jones, 125 Ind. 375, 25 NE 452, 21 AmSR 227; Turner v. Rogers, 8 Ind. 139; Shanklin v. Cooper, 8 Blackf. 41. Mass.-Murphy Mass. 6. V. Collins, 121 Vt.-Bryant v. Edson, 8 Vt. 325, 30 AmD 472. Eng. Hirschfeld v. Smith, L. R. 1 C. P. 340; Rothschild v. Currie, 1 Q. B. 43, 41 ECL 428, 113 Reprint 1045. But see Horne v. Rouquette, 3 Q. B. D. 514. [b] Reason for rule.-"The rule | Imperial Bank, 188 Fed. 300, 110 CCA that the manner of giving and the 278, 40 LRANS 377. sufficiency of the notice of dishonor are governed by the law of the place of indorsement is impractical, unfair, and unjust because the notary at the place of payment must give the notice, and it is often impossible in the time allowed to him by the law for him to find out where each indorsement was made and what the law of the place of each indorsement is upon the subject of notice of dishonor. On the other hand, commercial paper shows on its face where it is payable. Each indorser, when it is presented to him for his indorsement, has time and opportunity before he signs it to learn where it is payable to ascertain if he desires the law of that place, and to decide for himself with full knowledge and upon due consideration whether or not he will agree to pay the amount specified therein if the maker fails to do so and the paper is presented, the payment is demanded, the protest is made, and the notice of dishonor is given according to that law. In the decisions upon this question there is a direct and irreconcilable conflict." Guernsey v. Imperial Bank, 188 Fed. 300, 302, 110 CCA 278, 40 LRANS 377. Ont.-Mathewson v. Carman, 1 U. C. Q. B. 259. See Snow v. Perkins, 2 Mich. 238. Contra Aymar v. Sheldon, 12 Wend. (N. Y.) 439, 27 AmD 137. 33. Vaughan v. Potter, 131 Ill. A. 334; Orange County Bank v. Colby, 12 N. H. 520. See also infra § 181. 34. Iowa.-Huse v. Hamblin, 29 Iowa 501, 4 AmR 244. Ky.-Nickell v. Citizens' Bank, 60 SW 925, 22 KyL 1552. Compare Piner v. Clary, 17 B. Mon. 645. La. Pritchard v. Scott, 7 Mart. N. S. 491; State Bank v. Rowel, 6 Mart. N. S. 506. 82. Mass.-Williams v. Wade, 1 Metc. Mich.-Snow v. Perkins, 2 Mich. Minn.-Levering v. Washington, 3 Minn. 323. 238. N. H.-Simpson v. White, 40 N. H. 540; Williams v. Putnam, 14 N. H. 540, 40 AmD 204 (holding that, if the place of indorsement does not appear, it will be presumed to be the domicile of the indorser). N. Y.-Aymar v. Sheldon, 12 Wend. 439, 27 AmD 137. See also Cook v. Litchfield, 9 N. Y. 279; Leavenworth v. Brockway, 2 Hill 201. Tex.-Raymond v. Holmes, 11 Tex. [c] "The argument for the opposite rule is based on the conceded fact that the indorsement is an independent contract that, on condition that the paper is presented, demanded, and protested, and notice of dishonor is given, the drawer or indorser will pay the note if the drawee or the maker fails so to do. The next step in the argument is the assertion which is sustained by many and respectable authorities that the indorser does not agree to pay the note where it is payable, but at the place where he signs or delivers it. Daniel on Negotiable Instruments (5th Ed.) § 899. From this statement, without more, the argument Ont.-City Bank v. Ley, 1 U. C. Q. jumps to the conclusion that the B. 192. manner of giving and the sufficiency Compare Richmond Second Nat. of the notice of dishonor is governed Bank v. Smith, 118 Wis. 18, 94 NW by the law of the place of the mak- 664. ing or of the delivery of the indorsement. It is not easy, however, to find in the contract of indorsement an agreement not to pay at the place where the note is payable, or at any other place, except at the place where the indorsement happens to be signed and delivered." Guernsey V. Imperial Bank, 188 Fed. 300, 110 CCA 278, 40 LRANS 377. [d] In England and Canada the Bills of Exchange Act provides that the duties of the holder with respect to presentment for acceptance or payment and the necessity for, or sufficiency of, a protest or notice of dishonor are determined by the law of the place where the act is done or the bill is dishonored. Can. Bills Exch. Act § 162. 32. U. S.-Andrews v. Pond, 13 Pet. 65, 10 L. ed. 61; Guernsey v. 54. [a] The reason for this rule when applicable to the indorser is that the indorsement is equivalent to a new bill drawn on the same drawee; and hence the rights and liabilities of the indorser must be governed by the law of the place of the contract, in like manner as those of the drawer are to be governed by the laws of the place where his contract is made. Aymar v. Sheldon, 12 Wend. (N. Y.) 439, 27 AmD 137. 35. Aymar v. Sheldon, 12 Wend. (N. Y.) 439, 27 AmD 137. 36. Dunnigan v. Stevens, 122 Ill. 396, 13 NE 651, 3 AmSR 496; Hunt v. Standart, 15 Ind. 33, 77 AmD 79. But see Lee v. Selleck, 33 N. Y. 615. 37. Vanzant v. Arnold, 31 Ga. 210. 38. Burrows v. Hannegan, 4 F. Cas. No. 2,206, 1 McLean 315. [a] In other words, where a note [181] 14. Maturity.30 The time of maturity is determined by the law of the place where the instrument is payable.40 [§ 182] 15. Days of Grace. Where an instrument is made or drawn in one place and is made payable in another, the right to days of grace and the number of days are governed by the law of the place of payment.41 Where no place of payment is expressed in a note the place of payment, the law of which determines the right to days of grace, is the place of execution, without regard to the residence of the parties or the place at which the note is dated.42 Holder's ignorance of place of execution. Where a note payable generally is executed in one place and dated in another, a holder who is not aware that the place of execution is other than the place at which the paper is dated will be protected if he charges the indorser by presentment and notice according to the law of the latter place.43 [183] 16. Payment and Discharge.44 The law which determines the validity and construction of the contract will also generally determine what will avail to discharge the parties.15 Thus what constitutes payment is governed by the law of the place where the instrument is payable.46 And it has been held that the method of payment of á draft is regu is executed and indorsed in one state by parties residing there, the liability of the indorsers, as dependent on first bringing suit against the maker, is governed by the law of such state, rather than the law of the forum. Williams v. Wade, 1 Metc. (Mass.) 82. [b] Reason for rule.-"Of course, the note being payable at the residence of the payee and having been delivered there, for goods sold there, must be deemed and taken to be a West Virginia contract. This contract was made, and was to be performed, in that state and hence the law of that state must govern in determining its validity, obligation and construction. The only question in the case is, whether the defence set up by the sureties must be determined by the law of West Virginia or the law of Pennsylvania. The defence is that the sureties gave notice to the creditor that he must proceed against the principal for the collection of the note or they would no longer be responsible. By the law of West Virginia such a notice, to be effective, must be in writing, In this case it was verbal only and therefore if judged by the law of West Virginia, it was nugatory. It is argued for the defendants that this right of relief to a surety is a matter relating to the remedy and must therefore be determined by the lex fori. But we do not think this position tenable. The right of a surety to discharge his obligation by notice to the creditor to pursue the debtor, is an incident of the contract of suretyship. It is a part of the law of that contract and is therefore a part of the contract itself." Tenant v. Tenant, 110 Pa. 478, 484, 485, 1 A 532. 39. As fixing time for presentment for payment see supra § 179. 40. Skelton v. Dustin, 92 III. 49; Commercial Bank V. Barksdale, 36 Mo. 563. See also Roberts v. Wold, 61 Minn. 291, 63 NW 739. [a] Illustration.-Where a bill was drawn in England and payable in Paris three months after date, and before it matured a law was passed in France, in consequence of war, postponing the maturity of all current bills for a month, the bill was subject to the French law. Rouquette v. Overmann, L. R. 10 Q. B. 525, 4 ERC 287. lated by the law of the place where it is accepted to be paid.*7 So if part payment is a discharge by the law of the place of demand it will be a sufficient discharge everywhere.48 In England, however, it has been held that the drawer's release by discharge in bankruptcy is governed by the law of the place where the bill was drawn and not by that of the place of payment.49 [184] 17. Status of Holder as Bona Fide Purchaser. The question whether a purchaser is a bona fide holder involves the contractual rights and obligations of the parties and does not relate merely to the remedy and procedure employed for the performance of the obligation.50 Hence such questions will be determined by the lex loci contractus and not by the lex fori.51 It is held in some states that the place of payment ordinarily governs;52 but in other states it is held that the question whether a holder of a note is a bona fide holder for value is governed by the law of the state where the note is transferred to the holder, and not by the law of the forum or the law of the place where the note is executed,53 even though the instrument was payable in another state.54 [185] 18. Defenses. Generally the law of the place of the contract governs 55 unless a place of [b] In Canada and England the Bills of Exchange Act provides that, where a bill is drawn in one country and is payable in another, the due date thereof is determined according to the law of the place where it is payable. Can. Bills Exch. Act § 164. 41. U. S.-Washington Bank v. Triplett, 1 Pet. 25, 7 L. ed. 37; Guernsey v. Imperial Bank, 188 Fed. 300, 110 CCA 278, 40 LRANS 377. Ill. Skelton v. Dustin, 92 Ill. 49. Ind.-Brown v. Jones, 125 Ind. 375, 25 NE 452, 21 AmSR 227. Iowa.-Thorp v. Craig, 10 Iowa 461. Ky.-Goddin v. Shipley, 7 B. Mon. 575. Me.-Burnham v. Webster, 19 Me. 232. N. Y.-Bowen v. Newell, 8 N. Y. 190, Seld. Notes 87 [rev 7 N. Y. Super. 326]. R. I.-Pawcatuck Nat. Bank v. Barber, 22 R. I. 73, 46 A 1095. Vt.-Blodgett v. Durgin, 32 Vt. 361; Bryant v. Edson, 8 Vt. 325, 30 AmD 472. Wis. Richmond Second Nat. Bank v. Smith, 118 Wis. 18, 94 NW 664. Que. Bank of America v. Copland, 4 Montr. Leg. N. 154. 42. Blodgett v. Durgin, 32 Vt. 361; Bryant v. Edson, 8 Vt. 325, 30 AmD 472. And see Burnham v. Webster, 19 Me. 232. [a] The place of date, however, is prima facie the place of execution, and therefore the place of payment. Burnham v. Webster, 19 Me. 232. 43. Blodgett v. Durgin, 32 Vt. 361. See also Burnham v. Webster, 19 Me. 232. 44. See generally Payment [30 Cyc 1182]. 45. Green v. Sarmiento, 10 F. Cas. No. 5,760, Pet. C. C. 74, 3 Wash. C. C. 17; J. I. Case Threshing Mach. Co. v. Bridger, 133 La. 754, 763, 63 S 319 [quot Cyc]; Stevens v. Norris, 30 N. H. 466. 46. U. S.-Kessler v. Armstrong Cork Co., 158 Fed. 744, 85 CCA 642 [certiorari den 207 U. S. 597, 28 SCt 262, 52 L. ed. 357]; Searight v. Calbraight, 21 F. Cas. No. 12,585, 4 Dall. (Pa.) 325, 1 L. ed. 853. Conn.-Bartsch v. Atwater, 1 Conn. 409. Mo.-Belestin v. First Nat. Bank, 177 Mo. A. 300, 164 SW 160. N. Y.-Casper v. Kühne, 159 App. Div. 289, 144 NYS 502 [aff 79 Misc. 411, 140 NYS 861; Caras v. Thalmann, 138 App. Div. 297, 123 NYS 97. R. I.-Winslow v. Brown, 7 R. I. 95, 80 AmD 638. [a] In determining the legal effect of a contract and payment discharging one of several joint promisors, the law of the place where the contract and payment were made is to control. Winslow v. Brown, 7 R. I. 95, 80 AmD 638. [b] In determining whether or not a new note was received in satisfaction and payment of the original, the law of the place where the transaction occurs governs. Ward v. Howe, 38 N. H. 35. 47. Hammond v. American Express Co., 107 Md. 295, 68 A 496. [a] If a discharge of an acceptance by payment is in accordance with the law of the place where the acceptance is given and payable it will be valid everywhere. Robertson v. French, 4 East 130, 102 Reprint 779, 14 ERC 1; Burrows v. Jemino, Str. 733, 93 Reprint 815. 48. Ralli v. Dennistoun, 6 Exch. 483, 4 ERC 506. 49. Potter v. Brown, 5 East 124, 102 Reprint 1016. 50. Limerick Nat. Bank v. Howard, 71 N. H. 13, 51 A 641. 51. Woodruff v. Hill, 116 Mass. 310; Allen v. Bratton, 47 Miss. 119; Limerick Nat. Bank v. Howard, 71 N. H. 13, 51 A 641, 93 AmSR 489. See also Houston v. Keith, 100 Miss. 83, 56 S 336; Lienkauf Banking Co. v. Haney, 93 Miss. 613, 46 S 626. But see Ives v. Farmers' Bank, 2 Allen (Mass.) 236. 52. Webster v. Howe Mach. Co., 54 Conn. 394, 8 A 482; Bright v. Judson, 47 Barb. (N. Y.) 29. See also Emanuel v. White, 34 Miss. 56, 69 AmD 385; Green v. Kennedy, 6 Mo. A. 577. 53. Woodsen v. Owens, (Miss.) 12 S 207; King v. Doolittle, 1 Head (Tenn.) 77; Holt v. McCann, (Tex. Civ. A.) 42 SW 310. 54. Brook v. Vannest, 58 N. J. L. 162, 33 A 382. 55. U. S.-Brabston v. Gibson, 9 How. 263, 13 L. ed. 131. Ill-Stacy v. Baker, 2 Ill. 417. Ind. Yeatman v. Cullen, 5 Blackf. 240. 77. La.-Barrett v. Walker, 14 La. 303. Tenn.-King v. Doolittle, 1 Head payment is designated, in which case it controls.56 The law of the forum does not apply.57 A fortiori, where a note is payable and indorsed in another state, the law of that state and not the law of the forum governs special defenses.58 However, it has been held that the law of the forum governs in IX. FORMAL 61 [187] A. Necessity for Writing. Every negotiable instrument must be in writing.62 This is embodied in the very definition of these instruments, and no parol contract could serve the purpose of bills and notes as a convenient and flexible medium of exchange. 63 The Negotiable Instruments Law expressly provides that an instrument, in order to be negotiable, must be in writing.64 It has been held, however, that the writing may be in pencil,65 or lithographed, engraved, or printed.66 [188] B. Date-1. Necessity for. The Negotiable Instruments Law expressly provides that the validity and the negotiable character of an instrument are not affected by the fact that it is not dated; and this is merely declaratory of the law prior thereto.68 However, a date may be said to be necessary to the free and uninterrupted negotiability of the instrument;69 and the omission of the date leads to so much uncertainty and confusion Vt.-Harrison v. Edwards, 12 Vt. 648, 36 AmD 364. Ont.-Darling v. Hitchcock, 28 U. C. Q. B. 439. Compare Roots v. Merriweather, 8 Bush (Ky.) 397 (where it was held that, where the law of the state where an instrument was payable was not properly alleged and proved, the admissibility of defenses would be governed by the state where the obligation was sought to be enforced). What law governs payment generally as a defense see Payment [30 Cyc 1182]. 56. Sturdivant V. Memphis Nat. Bank, 60 Fed. 730, 9 CCA 256; Houston v. Keith, 100 Miss. 83, 56 S 336. Compare Palmer v. Minar, 8 Hun (N. Y.) 342. But see Wood v. Gibbs, 35 Miss. 559. [a] Illustration. The Iowa statute providing that, if a negotiable note is procured by fraud and indorsed before maturity to an innocent purchaser, he can only recover of the maker the sum that the purchaser paid, is applicable in an action in Missouri on a note made in Iowa and payable there. Crestor Nat. Bank v. Salmon, 117 Mo. A. 506, 93 SW 288. 57. Roe v. Jerome, 18 Conn. 138 (damages against acceptor of draft). [a] Пlustration.-Shannon Code §§ 5260, 5267, authorizing the attachment of choses in action, whether due or not, and declaring void any transfer thereof after the levy of the attachment, can have no extraterritorial effect, so as to defeat the rights of a bona fide purchaser of a note in the state of Texas. Kimbrough v. Hornsby, 113 Tenn. 605, 84 SW 613. 58. Brabston v. Gibson, 9 How. (U. S.) 263, 13 L. ed. 131. 59. Stevens v. Gregg, 89 Ky. 461, 12 SW 775, 11 KyL 686; Cincinnati Nat. Bank v. Hemingray, 31 Oh. St. 168. See also Set-Off and Counterclaim [34 Cyc 648]. 60. See Interest [22 Cyc 1476-1480]. 61. As sufficient memorandum within statute of frauds see Frauds, Statute of [20 Cyc 253]. 62. Thomas v. Bishop, Str. 955, 93 Reprint 965. See State v. Greenwood, 76 Minn. 211, 78 NW 1042, 1117, 77 AmSR 632; Pierson v. Townsend, 2 Hill (N. Y.) 550. 74 [§ 189] 2. Effect of. While a date is not absolutely necessary, yet the Negotiable Instruments Law expressly provides that a change of the date is a material alteration.72 72 The time of delivery controls the date as fixing the inception of the instrument,73 and also in determining what law governs. The Negotiable Instruments Law expressly provides that, where the instrument or an acceptance or any indorsement thereon is dated, such date is deemed prima facie to be the true date of the making, the drawing, the acceptance, or the indorsement as the case may be;75 and this is merely a reiteration of the common-law rule.76 Impossible date. A note dated the thirty-first of September will be considered as made the thirtieth." [190] 3. Effect of Absence of.78 When no date is expressed in a bill or note, it dates from the day when it was made or issued,79 or from delivery.80 Banking Co. V. Va.-Whiting v. Daniel, 1 Hen. & Gray, 123 Ala. 251, 26 S 205, 82 AmSR M. (11 Va.) 390. 120; Merchants, etc., Bank v. Pizor, 24 Pa. Co. 273. 63. Louisville 64. Thorp v. Mindeman, 123 Wis. 149, 101 NW 417, 107 AmSR 1003, 68 LRA 146. 65. Brown v. Butchers', etc., Bank, 6 Hill (N. Y.) 443, 41 AmD 755; Reed v. Roark, 14 Tex. 329, 65 AmD 127; Closson v. Stearns, 4 Vt. 11, 23 AmD 245; Geary v. Physic, 5 B. & C. 234, 11 ECL 442, 108 Reprint 87. [a] Part in ink and part in pencil. -It is gross negligence to write a note partly in ink with a material condition in pencil. Seibel v. Vaughan, 69 Ill. 257; Harvey V. Smith, 55 Ill. 224. 66. Pennington v. Baehr, 48 Cal. 565; Weston v. Myers, 33 Ill. 424; Farmers' Bank v. Ewing, 78 Ky. 264, 39 AmR 231; Zimmerman v. Rote, 75 Pa. 188. 67. Houston Bank v. Day, 145 Mo. A. 410. 122 SW 756; Church v. Stevens, 56 Misc. 572, 107 NYS 310. [a] Bills of Exchange Act § 3, 68. Ala.-Poiter v. Tucker, 11 Ala. Ill. Archer v. Claflin, 31 Ill. 306. Ky. Stout v. Cloud, 5 Litt. 205. Mich.-Gordon V. Lansing State Miss.-Dean v. De Lezardi, 24 Miss. 424. Mo.-Houston Bank v. Day, 145 Mo. N. H.-Pierce v. Richardson, 37 N. N. J. Vandeveer v. Ogburn, 2 N. Tenn.-State Bank v. Funding Bd., Tex.-Wexel v. Cameron, 31 Tex. 614. Vt.-Michigan Ins. Co. v. Leavenworth, 30 Vt. 11. Eng.-Hague v. French, 3 B. & P. 173, 127 Reprint 95; Giles v. Boune, 2 Chit. 300, 18 ECL 646, 6 M. & S. 73, 105 Reprint 1170; De la Courtier v. Bellamy, 2 Show. 422. 89 Reprint 1019. [a] Printed dates, formerly prohibited in England in case of notes payable to bearer on demand (55 Geo. III c 184 § 18), are now allowed (23 & 24 Vict. c 111 § 19). 69. Mitchell v. Culver, 7 Cow. (N. Y.) 336, 338 (where the court said: "Although it is not essential to the legal validity of a note, that it should be dated, yet we all know that it is necessary to its free and uninterrupted negotiability. A note without a date, will not be discounted at our banks, nor pass in the money market, without previous inquiry"). See also Breckenridge First State Sav. Bank v. Webster, 121 Mich. 149, 79 NW 1068. 70. Chitty Bills & N. 148. 71. Presumptions arising from date or absence of date see infra § 1304. Dated on Sunday, validity of see Sunday [37 Cyc 563]. 72. See statutory provisions. See also Alteration of Instruments §§ 52, 53. 75. See statutory provisions. 76. See infra § 1304. Date as conclusive as to time when instrument executed see infra § 1304. 77. Wagner v.' Kenner, 2 Rob. (La.) 120. 78. When undated instrument becomes due see infra § 592. 79. Hague v. French, 3 B. & P. 173, 127 Reprint 95; Giles v. Boune, 2 Chit. 300, 18 ECL 646, 6 M. & S. 73, 105 Reprint 1170; De la Courtier v. Bellamy, 2 Show. 422. 89 Reprint 1019. 80. Baldwin v. Freydendall, 10 Ill. A. 106 [aff 103 I. 325]; St. Charles First Nat. Bank v. Hunt, 25 Mo. A. 170; Richardson v. Ellett, 10 Tex. 190; Styles v. Wardle, 4 B. & C. 908, 10 ECL 854, 107 Reprint 1297; Armitt v. Breame, 2 Ld. Raym. 1076, 92 Reprint 213. The Negotiable Instruments Law expressly provides that where the instrument is not dated it will be considered to be dated as of the time it was issued.81 [§ 191] 4. Position of. The date is usually placed at the upper right hand corner of the paper, but is equally effective in any other position.82 [192] 5. Antedating and Postdating.83 The Negotiable Instruments Law expressly provides that the instrument is not invalid for the reason only that it is antedated or postdated, provided this is not done for an illegal or fraudulent purpose, and that the person to whom an instrument antedated or postdated is delivered acquires the title thereto as of the date of delivery.84 Independent of statute, the same rule prevails, so that a bill or note antedated or postdated is valid,85 and this also applies to checks.86 So a check is negotiable, although postdated.87 A postdated check is the same thing as a bill of exchange at as many days date as intervene between the day of delivering the check and the date marked on the check.88 It is a bill payable on demand after the day of its date.89 However, if antedating or postdating is done in fraudulent evasion of a statute, the instrument is invalid," as for in81. See statutory provisions. 82. Sheppard v. Graves, 14 How. (U. S.) 505, 14 L. ed. 518. 83. Effect as charging purchaser with notice see infra § 723. 84. See statutory provisions. 85. Ala.-Aldridge V. Decatur Branch Bank, 17 Ala. 45. Ind.-Luce v. Shoff, 70 Ind. 152. Me.-Drake v. Rogers, 32 Me. 524. 328. Mass. Bayley v. Taber, 5 Mass. 286, 4 AmD 57. Miss.-Dean V. De Lezardi, 24 Miss. 424. N. Y.-Brewster v. McCardell, 8 Wend. 478. Pa.-Rathfon v. Locher, 215 Pa. 571, 64 A 790; Richter v. Selin, 8 Serg. & R. 425. Eng.-Bull v. O'Sullivan, L. R. 6 Q. B. 209; Forster v. Mackreth, L. R. 2 Exch. 163, 4 ERC 210; Usher v. Dauncey, 4 Campb. 97; Pasmore v. North, 13 East 517, 104 Reprint 471; Barker v. Sterne, 9 Exch. 684; Emanuel v. Robarts, 17 L. T. Rep. N. S. 646. [a] Effect of postdating.-A postdated bill of exchange differs from a bill made payable a corresponding period after it is drawn in that the time bill may be sent forward meanwhile for acceptance, while the postdated bill cannot, and the drawee cannot retain funds to meet it before its date as against other bills previously falling due. New York Iron Mine v. Citizens' Bank, 44 Mich. 344, 6 NW 823. 86. Mass.-Symonds v. Riley, 188 Mass. 470, 74 NE 926; Bill v. Stewart, 156 Mass. 508, 31 NE 386. Mo.-Burns v. Kahn, 47 Mo. A. 215. N. Y.-Frazier v. Trow's Printing, etc., Co., 24 Hun 281 [aff 90 N. Y. 678 mem]. Pa-Walker v. Geisse, 4 Whart. 252, 33 AmD 60. Eng.-Royal Bank V. Tottenham, [1894] 2 Q. B. 715; Bull v. O'Sullivan, L. R. 6 Q. B. 209; Gatty v. Fry, 2 Ex. D. 265; Whistler v. Forster, 14 C. B. N. S. 248, 108 ECL 248, 143 Reprint 441. Ont.-Wood v. Stephenson, 16 U. C. Q. B. 419. Duty of bank as to postdated check see Banks and Banking § 387. [a] Formerly, in England, postdated checks were void. Serle V. [194] C. Expressing Place of Making. Unless so required by statute," the place of making or drawing a note or a bill need not be expressed; as but the practice of including the place of making in the date is universal, and since a contract is governed by the law of the place where it is made, this practice should always be followed." The place at which a note bears date is prima facie the place where the note was executed.1 [195] D. Signature 2-1. Necessity of. Every negotiable instrument requires the signature of the party who is to be bound by it, although where one agrees to sign, and such agreement is relied on to the detriment of the payee, equity will treat that as done which should have been done. Signature by Norton, 9 M. & W. 309, 152 Reprint | ter, and Wolverhampton Railway 131. Company" (Ward v. Oxford, etc., Co., 2 De G. M. & G. 750, 51 EngCh 588, 42 Reprint 1065). 98. See Evans v. Anderson, 78 Ill. 87. Burns v. Kahn, 47 Mo. A. 215; Triphonoff v. Sweeney, 65 Or. 299, 130 P 979. [a] The provisions of the Negotiable Instruments Law that an instrument is not invalid because antedated and postdated do not apply merely to the legality of the instrument, but in addition make such an instrument negotiable. Triphonoff v. Sweeney, 65 Or. 299, 130 P 979. 88. Bradley v. Delaplaine, 5 Del. 305; Forster v. Macreth, L. R. 2 Exch. 163, 4 ERC 210; Allen v. Keeves, 1 East 435, 102 Reprint 168. 89. Taylor v. Sip, 30 N. J. L. 284; Salter v. Burt, 20 Wend. (N. Y.) 205, 32 AmD 530; Gough v. Staats, 13. Wend. (N. Y.) 549; Mohawk Bank v. Broderick, 10 Wend. (N. Y.) 304 [aff 13 Wend. 133, 27 AmD 192]; Hill v. Gaw, 4 Pa. 493. 90. Bayley v. Taber, 5 Mass. 286, 4 AmD 57 (note antedated to take it out of the operation of legislative enactment forbidding a certain class of instruments after a certain date). 91. Williams v. Williams, 15 N. J. L. 255. Note bearing interest from date prior to its execution, as usurious see Usury [39 Cyc 956]. 92. Field v. Woods, 7 A. & E. 114, 34 ECL 82, 112 Reprint 414, 8 C. & P. 52, 34 ECL 604; Serle v. Norton, 9 M. & W. 309, 152 Reprint 131. 93. Ohio L. Ins., etc., Co. v. Winn, 4 Md. Ch. 253. 94. Royce V. Barnes, 11 Metc. (Mass.) 276. 97. There seems to be no such statute in any of the United States. [a] In England (1) 55 Geo. III c 184 and 9 Geo. IV c 49 required this as far as regarded the exemption of checks from stamp duty, and a false statement of the place avoided the instrument under the statutes. Field v. Woods, 7 A. & E. 114, 34 ECL 82, 112 Reprint 414, 8 C. & P. 52, 34 ECL 604; Rex v. Pooley, 3 B. & P. 311, 127 Reprint 171; Bopart v. Hicks, Exch. 1, 154 Reprint 730; Waters v. Brogden, 1 Y. & J. 457, 148 Reprint 750. (2) Under this rule "Dorchester Qld Bank. Established 1876," printed on a check, was held sufficient (Stickland v. Mansfield, 8 Q. B. 675, 55 ECL 675, 115 Reprint 1027), (3) but not the heading "Oxford, Worces 3 558. 99. Story Promissory N. § 47. [a] Effect of local date to save note from effect of Usury Law at the place of its delivery see Davis V. Coleman, 29 N. C. 424. 1. See infra § 1303. 2. Cross references: Alteration see Alteration of Instruments § 63. Designation of maker or drawer in signature, and effect of representative words see infra §§ 264-285. Forgery as defense to action on note see infra § 1028; as crime see Forgery [19 Cyc 1384]. Joint makers see supra §§ 96-104. Liabilities of indorser before delivery see supra §§ 118-134. Signature within statute of frauds see Frauds, Statute of [20 Cyc 272-277]; Signatures [36 Cyc 449]. 3. Ala.-Louisville Banking Co. v. Gray, 123 Ala. 251, 26 S 205, 82 AmSR 120; May v. Miller, 27 Ala. 515. Iowa. Thurston V. Mauro, 1 Greene 231. Ky. Tevis v. Young, 1 Metc. 197, 71 AmD 474. But see Hinkle V. Dodge, 7 KyL 532. Mich.-Burson v. Huntington, 21 Mich. 415. Mo.-Heman v. Francisco, 12 Mo. A. 559 (holding that, where there is a blank space for the maker's name in a note, parol testimony is not admissible to supply the omission). Pa. Merchants', etc., Bank v. Pizor, 24 Pa. Co. 273. Wash. Seattle Shoe Co. v. Packard, 43 Wash. 527, 86 P 845, 117 AmSR 1064 (bill of exchange). Eng.-Reg. v. Harper, 7 Q. B. D. 78; McCall v. Taylor, 19 C. B. N. S. 301, 115 ECL 301, 144 Reprint 803; Vyse v. Clarke, 5 C. & P. 403, 24 ECL 626; Stoessiger v. South Eastern R. Co., 3 E. & B. 549, 77 ECL 549, 118 Reprint 1248. Blanks, power to fill in with name of maker or drawer see infra § 314. [a] But a mortgage securing a note which it recites is valid, although the note is not signed, and the note may be read in evidence as part of the mortgage. McFadden v. Dykins, 82 Ind. 558. 4. Petty v. Gacking, 97 Ark. 217, 133 SW 832, 33 LRANS 175 and note (holding that, where money was ad sureties will not dispense with signature by the principal; and delivery by one maker to the payee with a condition that the note should not take effect until signed by others is a good defense." The Negotiable Instruments Law expressly provides that an instrument, in order to be negotiable, must be signed by the maker or the drawer, and also that no person is liable on the instrument whose signature does not appear thereon, except as otherwise expressly provided therein; but one who signs in a trade or assumed name will be liable to the same extent as if he had signed in his own name.' Intention to sign. The signature, in order to bind the signer, must have been made with intent to authenticate and to give effect to the contract.s Thus where a person's signature is affixed to a bill or note in ignorance of the character of the paper and without any intention of signing such an instrument, the signer being guilty of no negligence in affixing his signature, or in not ascertaining the character of the paper, the signature is of no effect, and it is generally held that no recovery can be had thereon.9 17 15 [197] 3. Form of. A signature in pencil is sufficient.10 So the signer's full name is not needed to constitute a sufficient signature. His initials may suffice for a valid signature, or he may use an abbreviation;18 and it is immaterial that the name is misspelled.19 So a person may become bound by any mark or designation he thinks proper to adopt, provided it is used as a substitute for his name and he intends to bind himself.20 Signature may be by a mark,21 although it has been held that the payee himself cannot sign the maker's name and make his mark, where the maker merely touches the pen staff. 22 Moreover the signer may use a hand stamp where the statute does not prescribe otherwise.23 [§ 196] 2. By Another Person.10 The signature may be made by another person for the maker or the drawer, where authorized.11 The Negotiable Instruments Law expressly provides that the signature vanced to the maker of a note on his | Instruments Law which provides presentation of the note and a com- that the signature of any party may munication stating that the writer be made by an agent duly authorized would sign the note, equity, treating in writing, which provision is held that as done which should have been to mean the same as if the word done, will treat the sender of the "must" was used instead of "may." communication as a joint maker of Finley v. Smith, 165 Ky. 445, 177 SW the note and not as a mere guaran- 262, LRA1915F 777. tor). 5. Knight v. Hurlbut, 74 Ill. 133; Stricklin v. Cunningham, 58 Ill. 293. 6. See infra § 336. 7. See Lawson v. Watson, [1907] S. C. 1353 (decided under the Bills of Exchange Act). [a] All the sureties must sign. Banque v. Arnoldi, 2 Ont. L. 624. 8. Briggs v. Ewart, 51 Mo. 245, 11 AmR 445; Lewis v. Clay, 67 L. J. Q. B. 224; Banque Jacques-Cartier v. Lalande, 20 Que. Super. 43. 9. See infra §§ 1047-1049. 10. When agent individually liable see infra §§ 265-284. 11. Wright v. Forgy, 126 Ala. 389, 28 S 198; Coy v. Stiner, 53 Mich. 42, 18 NW 552; Sager v. Tupper, 42 Mich. 605, 4 NW 555; Bowman v. Rector, (Tenn. Ch. A.) 59 SW 389. But see Solomon V. Merchants', etc.. Nat. Bank, (Tex. Civ. A.) 168 SW 1029 (holding that evidence that, although the note sued on was not signed by one defendant, it was signed under his authority by his son was insufficient to present any issue as whether such defendant executed the note). to [a] A note is signed by the maker where his name is written by another in his presence and by his direction, either with or without the maker's mark. Crumrine v. Crumrine, 14 Ind. A. 641, 43 NE 322; In re Embree, 18 LancLRev (Pa.) 57. See also Bowman v. Rector, (Tenn. Ch. A.) 59 SW 389. [b] Signature by agent in the maker's presence is sufficient even though it appears that the original intention of the maker was to sign by mark. Spearman v. Equitable Mortg. Co., 115 Ga. 670, 42 SE 52. 12. See statutory provisions; and generally Agency § 53. [a] In Kentucky, however, although before the enactment of the Negotiable Instruments Law an agent could sign a bill or note for his principal even though his authority was not evidenced in writing, this rule is changed by the Negotiable Lithographed or printed signatures have been held 5 B. & C. 234, 11 ECL 442, 108 Reprint 87; George v. Surrey, M. & M. 516, 22 ECL 576; Addy v. Grix, 8 Ves, Jr. 504, 32 Reprint 450; Harrison v. Harrison, 8 Ves. Jr. 185, 32 Reprint 184]. 13. Myer v. Wegener, 114 Iowa 74, 86 NW 49; Jones v. Forsythe, 4 Ky. Op. 277; La Banque Nationale V. Lemaire, (Que.) 15 DomLR 152. See also infra §§ 1029, 1030. [a] Illustrations.-(1) Where the 15. Ritchie County Bank v. Bee, See Signatures [36 Cyc 448]. 19. Lassen County Bank v. Sherer, 108 Cal 513, 41 P 415 (by omitting one letter leaving identity clear, "Joiah" for "Josiah"). See also Names [29 Cyc 272-277]. 20. Brown v. Butchers', etc., Bank, 6 Hill (N. Y.) 443, 41 AmD 775 [cit Baker v. Dening, 8 A. & E. 94, 35 ECL 497, 112 Reprint 771; Geary v. Physic, 21. Ala.-Jackson v. Tribble, 156 Ala. 480. 47 S 310: McGowan v. Collins, 154 Ala. 299, 46 S 228. Cal.-Hilborn v. Alford, 22 Cal. 482. Ill. Handyside v. Cameron, 21 Ill. 588, 74 AmD 119. Ind. Shank v. Butsch, 28 Ind. 19; Kennedy v. Graham, 9 Ind. A. 624, 35 NE 925, 37 NE 25 (holding that, if a person executing a note is unable to write, it is not necessary that he touch the pen while the person authorized so to do signs his name). Ky.-Hinkle v. Dodge, 7 KyL 526. N. H.-Willoughby v. Moulton, 47 N. H. 205. S. C.-Shiver v. Johnson, 4 S. C. L. 397; Paisley v. Snipes, 4 S. C. L. 200; Gervais v. Baird, 4 S. C. L. 37. Tenn.-Brown V. McClanahan, Baxt. 347. 9 Eng.-George v. Surrey, M. & M. 516, 22 ECL 576. Que. Remillard v. Moisan, 15 Que. Super. 622; Blackburn v. Decelles, 15 LCJur 260; Collins v. Bradshaw, 10 L. C. 366; Anderson v. Park, 6 L. C. 479. See also Straas v. Gilbert, 15 Que. L. 59; Patterson v. Pain, í L. C. 19. See also Signatures [36 Cye 452455]. Attesting see infra § 199. [a] Statute-A note executed by an illiterate promisor by his mark is sufficient and need not be attested. Civ. Cole (1896) § 1, defining "signature" or "subscription" as Including mark when one cannot write, his name being written near it and witnessed by one who writes his own name as a witness, is inapplicable to the execution of notes; and a note is validly executed by one who cannot write his name by his affixing thereunto an X-mark between an initial of his own name and his surname, written by the payee, the name of a witness who also could not write his name being written by the payee. McGowan v. Collins, 154 Ala. 299, 46 S 228. 22. Penton v. Williams, 163 Ala. 603, 51 S 35. 23. Cadillac State Bank v. Cadillac Stave, etc., Co., 129 Mich. 15, 88 NW |