tive for payment. He may have assets, and be ready to pay, and it is due to drawer and indorsers to afford him the opportunity.51

§ 1179. But even as to presentment for payment, the death of the maker or acceptor has been held to operate as an excuse.

Thus where an executor or administrator is allowed by law a certain time within which to settle up the estate, and is not liable before its expiration, he will seldom hazard the payment of a debt before he has ascertained the condition of the estate, or pay the debt before he is obliged to do so; and a demand upon him would doubtless be met with a refusal. "And therefore" (as said by Parker, C. J.), "such a demand would be merely a troublesome formality, without any use; and notice to the indorser that, the promisor being dead, he will be looked to for payment, will in every respect be as advantageous to him as a previous demand upon the promisor." 52 In England a different policy and a different rule exist.53 The fact that the indorser is the personal representative of the maker will not excuse nonpresentment to him.54

SECTION VII.

THE MISDATING OF A BILL OR NOTE BY A FOREIGN RESIDENT.

§ 1180. In the seventh place. When a foreign resident dates a bill or note in another State, where he executes and delivers it, and if he knew of such foreigner's residence at the time he received the note, or learned it within such period as afforded him. time to present it, it would be his duty to do so.55 Whether, in

51. Edwards on Bills, 454.

52. Hale v. Burr, 12 Mass. 86. See also Landry v. Stansbury, 10 La. 485; Oriental Bank v. Blake, 22 Pick. 206.

53. Hale v. Burr, supra.

54. Magruder v. Union Bank, 3 Pet. 87, 7 Pet. 287. See ante, § 1175. 55. Taylor v. Snyder, 3 Den. 145; Burrows v. Hannegan, 1 McLean, 309; Bank of Orleans v. Whittemore, 12 Gray, 473, the court saying: "Where the maker of a note, when it is made and indorsed, has a known residence out of the State, which residence remains unchanged at the maturity of the note, demand must be made on him, or due diligence used for that purpose, and notice of nonpayment given to the indorser before the indorser can be charged. So it was decided by the Court of Appeals in New York, in Taylor v. Snyder, before referred to, and in Spies v. Gilmore, 1 N. Y. 321. In this last case Bronson, J., said: "The only excuse which has been offered for not making demand is, that it would have been inconvenient to go or send to Matamoras for the purpose. It is often inconvenient to present the note for

deed, the holder would be excused, even if misled by the date, is questionable. Certainly the burden would be upon him to show that he was misled. In all cases the holder must exercise due diligence, and the only question is, what does due diligence require? The holder may, as it seems, presume the party making the note to reside where he has dated it, and may proceed accordingly to inquire for him at that place, and prepare to make presentment there at maturity. If, then, he learns for the first time that he resides elsewhere, his failure to present to him would be excused. Such, at least, seems to us the correct doctrine.56 But if the note be dated at one place, and there be a memorandum of the maker's address under his name, or elsewhere upon the paper, due diligence would require inquiry at the place designated.57 There are authorities which maintain the view that if the maker of a note resides and has his domicile in one State, and actually dates and makes and delivers a promissory note in another State, it will be sufficient for the holder to demand payment thereof at the place where it is dated, if the maker cannot personally, upon reasonable inquiries, be found within the State, and has no known place of business there.58

payment when the maker and holder both reside in the same State; and yet, when the maker has a known place of residence, and there has been no change of circumstances after the giving of the note, mere trouble or inconvenience to the holder has never been held a good excuse for omitting demand. And this is so, however wide asunder the maker and holder may live. If the plaintiff wished to avoid the inconvenience of sending to Matamoras, he should have made the note payable in New York, or got an indorsement with a waiver of demand. He has no right to change the contract which the indorser made, for the purpose of promoting his own convenience." 1 Parsons on Notes and Bills, 459, note c.

56. Smith v. Philbrick, 10 Gray, 252; Meyer v. Hibscher, 47 N. Y. 270; Stayler v. Williams, 24 Md. 199; Apperson v. Bynum, 5 Coldw. 348; Moodie v. Morrall, 3 Const. 367. See especially chapter XX, on Presentment for Payment, § 639 et seq., vol. I, and chapter XXIX, on Notice of Dishonor, section VI, vol. II.

57. Nicholson v. Barnes (Nebr.), 9 N. W. 652.

58. Story on Notes, 1236; Hepburn v. Toledano, 10 Mart. 643.

BOOK V.

ACTION ON NEGOTIABLE INSTRUMENTS; AND DEFENSES, DISCHARGES, AND DAMAGES.

CHAPTER XXXVII.

ACTION OR SUIT UPON BILLS AND NOTES.

SECTION I.

GENERAL PRINCIPLES AS TO WHO MAY SUE.

§ 1181. It is not within the province of this volume to treat otherwise than incidentally of those questions which concern negotiable instruments in a collateral way, rather than being immediately associated with their negotiable qualities. Therefore this chapter will not enter into any minute discussion of the intricacies of pleading and practice involved in the prosecution of upon a bill or note, but confine itself to a statement of the leading general principles of the most important character.

a suit

§ 1181a. Holder with legal title may sue. Any holder of a bill or note who can trace a clear legal title to it, is entitled to sue upon it in his own name, whether he possesses the beneficial interest in its contents or not.1 If the note be payable to A. or B., it may

1. Caldwell v. Lawrence, 84 Ill. 161; § 1191; Harpending v. Daniel, 80 Ky. 456. If the owner has transferred the note as collateral security, he cannot maintain a suit on it. Smith v. Felton, 85 Ind. 223, 84 Ind. 485. For the purposes of pleading, an allegation of indorsement, assignment, or execution to the plaintiff, sufficiently shows title in him. Eichelberger v. Bank, 103 Ind. 401; Thompson v. Building Assn., 103 Ind. 279. In this connection, see Prescott Nat. Bank v. Butler, 157 Mass. 549, 32 N. E. 909. In this case, among other questions raised, was whether a national bank, under the Revised Statutes (United States), was authorized to discount promissory notes; the court said: "Even if a national bank does not get the legal title to a promissory note brought in the market, it may maintain a suit as the holder, and the maker and the indorsers cannot be relieved from their contract to pay holder

be sued upon by them jointly or by either one of them.2 If there be a special indorsement, or assignment to a particular person, he is the proper person to sue; and if he is in possession he may sue although his name be indorsed on the paper, after the special indorsement or assignment. For in such case his indorsement will be presumed to be a mere memorandum, or evidence that he had negotiated the paper and then taken it up.3

4

5

3

Agents, receivers, assignees, trustees, or personal representatives, may sue on a note or bill payable to bearer, or indorsed in blank. And the donee causa mortis of a note payable to the donor's order may use the name of his personal representative, even against his protest. But a mere depositary of such a note cannot maintain suit. If the paper be indorsed specially to a particular person, none but such person or his representative can

8

the amount promised in writing." Seybold v. National Bank, 5 N. Dak. 460, 67 N. W. 682; Hoskinson v. Bagby, 46 Kan. 758, 27 Pac. 110; Stamper v. Gay, 3 Wyo. 322, 23 Pac. 64, citing text; Berney v. Steiner Bros., 108 Ala. 111, 19 So. 806, 54 Am. St. Rep. 144; Rice v. Rice, 106 Ala. 636, 17 So. 628; Jenkins v. Sherman, 77 Miss. 884, 28 So. 726; Fant v. Wickes, 10 Tex. Civ. App. 394, 32 S. W. 126; Sparks v. Coats, 22 Tex. Civ. App. 455, 54 S. W. 913. See Jackson v. West, 22 Tex. Civ. App. 483, 54 S. W. 297; Keller v. Alexander, 24 Tex. Civ. App. 186, 58 S. W. 637; Giselman v. Starr, 106 Cal. 651, 40 Pac. 8.

2. Westgate v. Healy, 4 R. I. 524; Middleton v. Griffith, 57 N. J. L. 442, 31 Atl. 405, 51 Am. St. Rep. 617, citing text.

3. Humphreyville v. Culver, 73 IN. 485; Middleton v. Griffith, 57 N. J. L. 444, 31 Atl. 405, 51 Am. St. Rep. 617, citing text; Verney v. Steiner Bros., 108 Ala. 111, 19 So. 806, 54 Am. St. Rep. 144. See § 1198.

4. Law v. Parnell, 7 C. B. (N. S.) 282; §§ 1192, 1192a.

5. Smith v. Kendal, 1 Esp. 231, 6 T. R. 123; Bowman v. Wood, 15 Mass. 534; Beeson v. Shively, 28 Kan. 574; Beckham v. Hague, 44 App. Div. 146, 60 N. Y. Supp. 767.

6. Haxtun v. Bishop, 3 Wend. 13; Stoll v. Sheldon, 13 Nebr. 207; Giselman v. Starr, 106 Cal. 651, 40 Pac. 8.

7. See ante, § 264, vol. I; 2 Parsons on Notes and Bills, 446. Where a guardian transfers by delivery without indorsement, to the heirs of his deceased ward as a part of the ward's estate, a promissory note payable to him, the heirs of deceased ward may maintain an action against the makers of the note if the original payee is made a party defendant and files a disclaimer. See Casto et al. v. Evinger et al., 17 Ind. App. 298, 46 N. E. 698; Fant v. Wickes, 10 Tex. Civ. App. 394, 32 S. W. 126; Harts v. Emery, 184 Ill. 560, 56 N. E. 865.

8. Grover v. Grover, 24 Pick. 261; Sessions v. Moseley, 4 Cush. 87; Bates v. Kempton, 7 Gray, 382; Brown v. Brown, 18 Conn. 410.

9. Sherwood v. Roys, 14 Pick. 172; Woodsum v. Cole, 69 Cal. 142.

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sue. A party for accommodation who pays the bill may sue prior parties, but not subsequent ones. If an acceptor or maker for accommodation pays the bill he cannot sue drawer or indorser upon the bill, because, according to its terms, he is liable to them. But he may sue the accommodation party for money paid at his request.11

§ 1182. In partnership cases. If a bill or note be made payable to, or indorsed specially to a firm, all the partners must join in the suit;12 and if so payable or indorsed to A. & Co., A. cannot recover unless he shows that he alone composed the nominal firm.13 If, in fact, he alone composes the firm, the title to the paper is in him, and no indorsement is necessary to enable him to maintain the suit. If one of the copartners of a firm should die, suit should be brought by the survivor or survivors; 15 but if the paper be indorsed in blank to a firm, either copartner may fill it up in his own name and sue,' even though one of the copartners be dead,17 and if indorsed to one member of the firm, it may be filled up and suit brought on it in the firm name.1

14

16

18

§ 1183. A copartner cannot sue a firm of which he is a member, upon a bill or note payable by it to himself, because he would be in fact suing himself; 19 but if a firm make its bill or note payable

10. See vol. I, § 692; Burch v. Daniel, 109 Ga. 256, 34 S. E. 310. Held, in this case, that a plaintiff who brought suit upon a promissory note, the legal title to which was not in him when his petition was filed, could not maintain the action by proving that before the trial he had procured an indorsement of the note to himself from the person in whom such title had vested at the time the action was begun."

11. Stark v. Alford, 49 Tex. 260; § 1206.

12. Guidon v. Robson, 2 Campb. 302; Atwood v. Rattenbury, 6 J. B. Moore, 579.

13. Robb v. Bailey, 13 La. Ann. 457; Hoyt v. Kountze, 54 Nebr. 368, 74 N. W. 585.

14. Smith v. Hanie, 74 Ga. 327.

15. Parsons on Partnership, 447.

16. Lovell v. Evertson, 11 Johns. 52.

17. Atwood v. Rattenbury, 6 J. B. Moore, 579; Weaver v. Bromley, 65 Mich. 213.

18. Hutchinson v. Crane, 100 Ill. 272. And it has been likewise held that a corporation de facto can bring an action on notes received by it, and the maker thereof cannot avail himself of the defective corporate existence of the company in order to avoid a just liability. See Bank of Port Jefferson v. Darling, 91 Hun, 236, 36 N. Y. Supp. 153.

19. Parsons on Partnership, 510, note. VOL. II-14