to the bank.

So, of an indorsement to the secretary of a trust company. Under this section, it is competent in an action on a certificate of deposit made payable to S as cashier of a bank, and indorsed by him as cashier, to show that he was the cashier of such bank, and was acting in that capacity in transferring the certificate sued on. Johnson v. Buffalo Center State Bank (Iowa), 112 N. W. Rep. 165. And it is not competent for the bank to prove that S was making use of his official title and authority in his own individual interest, for the purpose of showing that the bank was not bound by this act. (Id.) The statute has been applied also in Griffin v. Erskine, 131 Iowa, 444, 450-451, and in First Nat. Bank v. McCullough, (Oregon) 93 Pac. Rep. 366.

§ 73. Indorsement where name is misspelled, et cetera.— Where the name of a payee or indorsee is wrongly designated or misspelled, he may indorse the instrument as therein described, adding, if he thinks fit, his proper signature (a).

(a) Thus, one who, while carrying on business on his own account in the name of a company which has been incorporated, but not organized, receives in payment of a debt contracted with him in such business a promissory note payable to the order of the corporation, may transfer the note by indorsing it in his own name. Bryant v. Eastman, 7 Cush. 111. Conversely, a man will be bound by paper made by him in the name he adopts in his business. Salmon v. Hopkins, 61 Conn. 47.

§ 74. Indorsement in representative capacity.— Where any person is under obligation to indorse in a representative capacity, he may indorse in such terms as to negative personal liability (a).

(a) As to the liability of executors and administrators who accept or indorse, see Schmittler v. Simon, 101 N. Y. 554.

§ 75. Time of indorsement; presumption.- Except where an indorsement bears date after the maturity of the instru

ment every negotiation is deemed prima facie to have been effected before the instrument was overdue (a).

(a) Mason v. Noonan, 7 Wis. 609. If the defendant alleges that the paper was indorsed after it was due, the burden of proof is on him to show it. White v. Camp., 1 Fla. 94. This rule is important because that, in order to constitute one a holder in due course, he must have taken the instrument before it was overdue. See section 91. The indorsement of an overdue note cannot relate back to the date of the note; as a new and independent contract, it takes effect from the time it is made, and must be determined by the laws then in force and the circumstances then existing. Brown v. Hull, 33 Gratt. 23, 30.

§ 76. Place of indorsement; presumption.-Except where the contrary appears every indorsement is presumed prima facie to have been made at the place where the instrument is dated (a).

(a) As an indorsement is not merely a transfer of the instrument, but is a new and substantive contract embodying in itself all the terms of the instrument, the place where it was made often becomes of importance. See Ingalls v. Lee, 9 Barb. 647; Brown v. Hull, 33 Gratt. 27, 29; Smith v. Caro, 9 Oregon 278; Bank of British N. Am. v. Ellis, 6 Sawyer, 98; Freese v. Brownell, 35 N. J. Law 285. For example, an indorsement in Massachusetts of a note executed and payable in New York is a Massachusetts contract, and governed by the law of that State. Glidden v. Chamberlin, 167 Mass. 486. An indorsement in blank of a promissory note dated and payable in the State of New York is presumed both at common law and under the statute to have been made here, and one discounting the note in good faith is entitled to rely upon that presumption. Chemical Nat. Bank v. Kellogg, 183 N. Y. 92. And a married woman, who, at her residence in the State of New Jersey, indorses in blank, and solely for his benefit, her husband's promissory note, dated and payable in the State of New York, where it is dicounted in good faith, without notice that the indorser was a non-resident, or that the indorsement was made in another State is estopped to deny that her indorsement is a New York contract, and from claiming that it is a New Jersey contract. (Id.)

§ 77. Continuation of negotiable character. An instrument negotiable in its origin continues to be negotiable until it has been restrictively indorsed or discharged by payment or otherwise (a).

(a) Cumberland Bank v. Hann, 3 Harr. (N. J.) 222. The law is perfectly well settled that a note or bill negotiable in form is negotiable as well after as before it becomes due. National Bank of Washington v. Texas, 20 Wall. 72. McSherry v. Brooks, 46 Md. 103, 118; French v. Jarvis, 29 Conn. 347; Adair v. Lenox, 15 Oregon 489. But the rights, duties and obligations of the parties are by no means the same. The instrument becomes, according to legal effect, payable on demand, so far as the indorser is concerned; and presentment for payment must be made within a reasonable time, and due notice of the dishonor given to the indorser. Brown v. Hull, 33 Gratt. 23, 28; Berry v. Robinson, 9 Johns. 121; Van Hoosen v. Van Alstyne, 3 Wend. 79; Poole v. Tolleson, 1 McCord, 200; Patterson v. Todd, 18 Pa. St. 426; Rosson v. Carroll, 90 Tenn. 90. But if the paper was presented at maturity and notice of dishonor given to prior parties it is not necessary that the indorsee after maturity should, in order to hold them, present the paper again and give them then notice of dishonor; for the original demand and notice were to the benefit of all subsequent holders. French v. Jarvis, 29 Conn. 347. As to the discharge of negotiable instruments, see sections 200-206.

§ 78. Striking out indorsement. The holder may at any time strike out any indorsement which is not necessary to his title (a). The indorser whose indorsement is struck out, and all indorsers subsequent to him, are thereby relieved from liability on the instrument.

(a) New Haven Mfg. Co. v. New Haven Pulp & Board Co., 76 Conn. 126, 131-132 (a case arising under the statute). This section is declaratory of the law as it existed prior to the enactment of the statute. Jerman v. Edwards, 29 App. Cases D. C. 535. The holder may strike out all intervening indorsements and aver that the first blank indorser indorsed immediately to himself. Byles on Bills, 149; Preston v. Mann, 25 Conn. 127; Bank of

America v. Senior, 11 R. I. 376. This may be done at the trial, and after the plaintiff has finished his case. Mayer v. Jadis, 1 M. & Rob. 247. See also Morris v. Cude, 57 Tex. 337; Rand v. Dovey, 83 Pa. St. 281; Merz v. Kaiser, 20 La. Ann. 379; Vanarsdale v. Hax, 107 Fed. Rep. 878. Where a party becomes a holder of a promissory note by delivery under an indorsement in blank by the payee, he is entitled to strike out a subsequent indorsement under which he does not claim title, and in an action by him against the maker and payee, where there is no defense to the note as against any party whose name appears thereon, it is immaterial whether such subsequent indorsement is restrictive or not. Jerman v. Edwards, 29 App. Cases, D. C. 535.

§ 79. Transfer without indorsement; effect of. Where the holder of an instrument payable to his order transfers it for value without indorsing it, the transfer vests in the transferee such title as the transferrer had therein, and the transferee acquires, in addition, the right to have the indorsement of the transferrer (a). But for the purpose of determining whether the transferee is a holder in due course, the negotiation takes effect as of the time when the indorsement is actually made (b).

(a) Simpson v. Hall, 47 Conn. 417. Title to an instrument, drawn to order, can be transferred by delivery and by parol, and the only effect of the lack of an indorsement is to make the paper non-negotiable and admit inquiry into the equities. Meurer v. Phenix National Bank, 42 Misc. (N. Y.) 341. But under the statute, as well as under the law merchant, the indorsement is required to constitute the transferee a holder in due course. Mayers v. McRimmon, 140 N. C. 640, 642-643. Thus, the purchaser of a certified check, payable to order, who obtains title without the indorsement of the payee, holds it subject to all equities between the original parties, although he paid full consideration, without notice. Goshen National Bank v. Bingham, 118 N. Y. 349; Jenkinson v. Wilkinson, 110 N. C. 532. And an intention on the part of the payee and transferee to have the paper indorsed is not sufficient, at least in the absence of an express agreement to indorse. It is the act of indorsement, not the in

tention, which negotiates the instrument. Goshen National Bank v. Bingham, supra. Where a check, drawn to the order and in the hands of a bona fide holder for value, has at his request been certified by a bank, and is a valid obligation against the maker, and there are no equities between him and the bank, the holder can recover of the bank upon the check, although the maker had not indorsed it to him. Meuer v. Phenix National Bank, 42 Misc. (N. Y.) 341.

(b) An indorsement after notice of a defense does not relate back to the transfer, so as to cut off intervening rights and remedies. (Id.) But in Beard v. Dedolph, 29 Wis. 136, it was held that the holder is protected against everything subsequent to delivery, the indorsement being held to relate back to the time of delivery as to any equity outside of the note itself.

§ 80. When prior party may negotiate instrument.— Where an instrument is negotiated back to a prior party, such party may, subject to the provisions of this act, reissue and further negotiate the same. But he is not entitled to enforce payment thereof against any intervening party to whom he was personally liable.