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where the holder died in another state.48 An executor has no authority, however, to receive payment by a bill of exchange.**

Where the payee has died, it will not be sufficient to make payment to her husband or his attorney; 50 or to the payee's widow, who has obtained possession of the note without indorsement and in fraud of the payee's estate. But payment to his heirs and children at the request of his administrator may be shown under a plea of payment.52

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Payment to Trustee.

§ 1449. Payment should properly be made to the owner of a bill or note. If it is payable to one person in trust for, or for the use of, another, it should be paid to the trustee, and not to the cestui que trust. But although a negotiable note is secured by a trust deed providing for payment to the trustee named in the deed, payment to the trustee will be no defense against a bona fide holder.55 So, if a negotiable note is secured by a collateral mortgage, it will not be sufficient to make payment to the mortgagee, after the note has been transferred by indorsement, although the maker

48 Heywood v. Hartshorn, 55 N. H. 476. On the other hand, after action brought by the executor under probate in the foreign domicile, the maker cannot make payment to an administrator cum testamento annexo afterwards appointed in the place of the maker's residence.

35 Atl. 70.

Amsden v. Danielson (R. I.)

49 Parham v. Stith, 56 Miss. 465, or in Confederate currency, Scott v. Atchison, 36 Tex. 76. But he may receive such currency in payment of a note made to him at a time and place where such currency was in use, and was intended by the word "dollars" in the note, Rogers v. Tullos, 51 Miss. 685.

50 Stone v. Simonds, 131 Mass. 457.

51 Davis v. Lane, 8 N. H. 224.

52 Griswold v. Ward, 7 N. J. Law, 95.

53 Byles, Bills, 222; Chit. Bills, 444; 2 Daniel, Neg. Inst. 255; Becke v. Smith, 2 Mees. & W. 191; Woodward v. Elliott, 13 Ind. 516. But payment of a judgment on a note to the real owner will be a good defense against one holding the judgment as a naked trustee for such owner. Pratt v. Dow, 56 Me. 81.

54 Chit. Bills, 444; 2 Daniel, Neg. Inst. 260; 2 Pars. Notes & B. 210; Cramlington v. Evans, 2 Vent. 310; Marchington v. Vernon, 1 Bos. & P. 101, note; Smith v. Kendall, 6 Term R. 123; Thomassen v. Van Wyngaarden, 65 Iowa, 687, 22 N. W. 927.

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had no notice of the transfer.56 But a mortgage is not rendered negotiable because made to secure a negotiable note; and it has been held that payment made to the mortgagee by the owner of the property mortgaged will extinguish the mortgage, and be binding on the holder of the note. So, too, if payment is made to the trustee named for that purpose in a collateral deed of trust and known to the purchaser of the note. Where a mortgage secures several notes, and they are transferred to different parties, and the mortgage is transferred with the last of them, and afterwards paid to such transferee and satisfied by him, it has been held to be binding upon the holder of the note first transferred."

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In Germany provision is made by statute for payment of a bill of exchange into court, if no demand is made at maturity." And in England, as we have seen, payment may be made to a sheriff or other officer holding bill or note under an execution.61 But payment to an official receiver, under a statute of the Confederate States requiring such payment, constitutes no defense against the rightful owner.62

Payment to Agent.

§ 1450. Payment to the authorized agent of the owner is sufficient. And the agent employed to collect a bill or note may him

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56 Burhans v. Hutcheson, 25 Kan. 625.

57 Jennings v. Vickers, 31 La. Ann. 679; although made after, but without notice of a transfer of the note. Johnson v. Carpenter, 7 Minn. 176 (Gil. 120). 58 He being presumed to be the authorized agent of the holder until his authority is expressly revoked. Goodfellow v. Stillwell, 73 Mo. 17.

59 Young v. Miller, 6 Gray (Mass.) 152.

60 GERMANY (Exch. Law, art. 40).

61 1 & 2 Vict. c. 110, § 12. And see § 825, supra.

62 Luter v. Hunter, 30 Tex. 688; Levison v. Norris, Id. 713; Justice v. Hamilton, 67 N. C. 111; Ward v. Brandt, 61 N. C. 71; Blackwell v. Willard, 65 N. C. 555.

63 Chit. Bills, 444; 2 Pars. Notes & B. 209; Favenc v. Bennett, 11 East, 40; or to the owner's attorney, Coore v. Callaway, 1 Esp. 115, 1 Camp. 478; Ely v. Harvey, 6 Bush (Ky.) 620. Although the agent failed to demand the surrender of the note, as authorized by the statute. Reid v. Kellogg, 8 S. D. 596, 67 N. W. 687. So, although terms of the note provided: "No credit allowed on this note unless indorsed on the back by the payee." Kasson v. Noltner, 43 Wis. 646.

self employ an attorney, to whom payment may be made.64 But payment cannot be made to an agent who is an alien enemy, in time of war. Where payment is made to an agent, his authority to receive it must appear.66

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But authority may be implied, as in other cases, from his official position or other circumstances.67 Authority to receive payment will be presumed from mere possession of an instrument payable to bearer, even before maturity, and without the payee's indorsement. But where a bill is indorsed in blank and put into the hands of one of the drawers for collection, and settlement is made by him with his co-drawers, as though it had been satisfied by him. the bill not being shown to them), they cannot set up the defense of payment against the holder, since they were not misled by its being in the possession of their co-drawer.71 Where the payee's wife is in possession of a bill, and surrenders it on payment to her, her possession, coupled with a general authority as agent to lend. and receive money for her husband, will be sufficient.72 And it has even been held sufficient to make a payment to a person in the counting house of the payee, and apparently in charge of it, although he was not in fact so employed.73

On the other hand, payment made to an agent, who is not in possession of the note, is not sufficient," even though he had re 64 Barclay v. Hopkins, 59 Ga. 562; but not to a clerk or agent of the attorney, Yates v. Frecklegton, Doug. 623.

65 Blackwell v. Willard, 65 N. C. 555.

6 Dixon v. Haslett, Tread. Const. (S. C.) 615; Stiger v. Bent, 111 Ill. 328; and it is not sufficient that he is the custodian of the note or the attorney of the holder, Lochenmeyer v. Fogarty, 112 Ill. 572.

67 Martin v. Webb, 110 U. S. 7, 3 Sup. Ct. 428; Thomson v. Shelton, 49 Neb. 644, 68 N. W. 1055.

58 Cone v. Brown, 15 Rich. Law (S. C.) 262. And see § 364, supra.

69 Florat v. Marchand, 26 La. Ann. 741.

TO Paulman v. Claycomb, 75 Ind. 64.

71 Featherstone v. Hunt, 1 Barn. & C. 113, 2 Dowl. & R. 233.

12 White v. Genobles, 12 Rich. Law (S. C.) 311. But it is not sufficient to make payment to a son of the holder, who told the maker he had no authority to receive it, and trover lies against the maker to recover the note surrendered by the son. Kingman v. Pierce, 17 Mass. 247.

73 Barrett v. Deere, Moody & M. 200; Corfield v. Parsons, 1 Cromp. & M. 730.

74 Howard v. Rice, 54 Ga. 52. So, where the agent has delivered the note (2097)

RAND.C.P.-132

ceived and transmitted earlier payments for the holder,75 or interest on the note in question.76 But an attorney who has possession for the purpose of suit will be presumed from that fact to have power to collect, and he or his agent may receive payment."

Giving a note to an agent for collection will raise a presumption of authority to receive payment and surrender the note, but not to release it upon a compromise of the debt or to pledge it. An agent who holds a note for collection only has no authority to sell or transfer it; or to fill up the holder's blank indorsement specially; 80 or to extend the time of payment; 81 or to receive conditional payment.82

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If an agent has authority to sell property and take a note in payment in the principal's name, this will not include authority to receive payment of the note after it has been delivered to the prin

to his principal. Paris v. Moe, 60 Ga. 90. So, the authority to receive part payment will not be implied from his originally negotiating the loan, and afterwards ascertaining for the borrower on what terms part payment would be accepted. Mut. Ben. Ins. Co. v. Miles, 81 Fed. 32. So, of A., to receive payment of a note payable to A. or bearer, before maturity and after transfer by him, will not be presumed if he is not in possession, although it may be proved otherwise. Swegle v. Wells, 7 Or. 222.

75 Bull v. Mitchell, 47 Neb. 647, 66 N. W. 632; but, contra, though the agent was not in possession of the note, Quinn v. Dresbach, 75 Cal. 159.

76 Ilgenfritz v. Insurance Co., 81 Fed. 27; Trull v. Hammond (Minn.) 73 N. W. 642; Richards v. Waller, 49 Neb. 639, 68 N. W. 1053; Western Security Co. v. Douglass, 14 Wash. 215, 44 Pac. 257. But see, contra, where the interest payments had continued for many years, Sax v. Drake, 69 Iowa, 760, 28 N. W. 423.

77 Planters' Bank v. Massey, 2 Heisk. (Tenn.) 360; although the attorney denied his authority, but had not, in fact, surrendered it, McIniffe v. Whee lock, 1 Gray. (Mass.) 600.

79 Padfield v. Green, 85 Ill. 529; or to release one joint debtor on his giving collateral, Crane v. Sickel, 51 Neb. 828, 71 N. W. 724.

79 Smith v. Johnson, 71 Mo. 382; Goodfellow v. Landis, 36 Mo. 168; even for the purpose of bringing suit, White v. Hildreth, 13 N. H. 104.

30 Child v. Powder Works, 44 N. H. 354.

81 Chappel v. Raymond, 20 La. Ann. 277. So, he cannot take a renewal. Weyerhauser v. Dun, 100 N. Y. 150, 2 N. E. 274. But the principal, taking the benefit of the extension, ratifies it, and discharges the surety. Woodbury v. Larned, 5 Minn. 339 (Gil. 271).

$2 Bank of Scotland v. Dominion Bank [1891] App. Cas. 592.

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cipal. But where a note for goods sold, taken in the agent's name, is afterwards paid at his store, in his absence, to his son (who gave a receipt, saying the note was not there), it has been held to be sufficient. So, where the maker paid such a note before maturity, without notice of any revocation of the agent's authority.85 So, a certificate of deposit made out in the agent's name, and received by the principal without protest, and afterwards stolen and collected by the agent.

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Implied Agency.

§ 1451. Where a check is indorsed payable to the order of a bank cashier, and sent by messenger in a sealed envelope addressed to the cashier, together with a deposit ticket, and the envelope is broken open by the messenger and the money paid to him, the law implies no authority on his part to receive such payment, and the bank will be liable for the amount to the depositor. 87 So, where a check is given by the drawer to his agent to deposit in the trust company to the order of which it was drawn, and the trust company gives the agent a certificate of deposit as trustee for the drawer, and afterwards pays the certificate to the agent, who had no actual authority to receive it, it will not be a valid payment as against the drawer. So, an agent who holds a note without indorsement, with a forged request from the maker for its payment, is not en

83 Draper v. Rice, 56 Iowa, 114, 7 N. W. 524, and 8 N. W. 797; Holland v. Van Beil, 89 Ga. 223, 15 S. E. 302; Seiberling v. Demaree, 27 Neb. 854, 44 N. W. 46. So, power to receive a check. Pickle v. Muse, 88 Tenn. 380, 12 S. W. 919.

84 Ulrich v. McCormick, 66 Ind. 243.

85 Especially where the maker afterwards ratified the agent's sale of the goods by taking the note from him and bringing suit on it. Howe Mach. Co.

v. Simler, 59 Ind. 307.

86 Dewar v. Bank, 115 III. 22, 3 N. E. 746.

87 Bristol Knife Co. v. First Nat. Bank, 41 Conn. 421. So, tender to a cashier who held the note in a sealed envelope as a special deposit, and refused to receive payment under the owner's instructions, will not stop the running of interest on the note. King v. Finch, 60 Ind. 420.

88 Although he had previously given a general power of attorney to the same agent, which was lodged with another bank and related to its affairs, and was not known to the trust company. Sims v. Trust Co., 103 N. Y. 472, 9 N. E. 605.

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