maker of a note sign the instrument at the right lower corner, the custom, according to judicial decision, is not binding." The name written by the party in any part of the instrument, if the intention be to become the maker of it, is a sufficient signature;" for neither ordinarily, nor in its legal use, is the word signed, in reference to a contract or other instrument in writing, confined to a writing of the name at the bottom, though generally understood as such, and appropriately used in that way; but the word subscribed in its habitual use, and according to both its popular and literary signification, is limited to a signature at the end of a printed or written document." Thus, where a note ran, "I, William Smith, promise to pay, etc.," instead of "I promise to pay,' with the signature appended, it is good, though unusual, in form;" and, it is held, one may become liable as maker by signature on the back of a note." But, while, in the absence of statute, it is immaterial in what part of the document the name is introduced, provided it govern the whole, legal analogies must be applied with caution to instruments which are the creation of custom, and where it is of the utmost importance that a clear title should appear on the face of the instrument."

12. How Signed. An instrument is properly signed by the drawer or maker with a pen and ink. Ink, however, is not the only medium of script; a note signed with pencil is good, though not favored."

Where a statute requires an ordinary contract or document to be signed, a mere mark," or initials," or a stamp," if intended as signatures, are sufficient; but, as we have said before, "legal analogies must be applied with caution" in the execution of an instrument where it is important that a clear title should appear on its face.

23 Big. Law B. N. & C. (2d Ed.), p. 40, and notes.

241 Hugh. (U. S.) 172 (1875).

256 N. Y. 13 (1851).

261 Stra. (Eng.) 399 (1795).

274 Conn. 389 (1822).

33

295 B. & C. (Eng.) 234 (1823); 6 Hill (N. Y.) 443 (1844).

308 A. & E. (Eng.) 94 (1838).

31 L. R. 2 H. L. (Eng.) 143 (1867).

322 B. & P. (Eng.) 238 (1800).

331 Dan. Neg. Inst., Sec. 74.

28 Chal. Dig. Eng. B. of E. Act (5th Ed.), p. 276.

Statutes in some of the United States, and in some foreign countries, expressly provide that making a mark is sufficient when the person cannot write; usually it is required that the mark be accompanied by the signer's name and attested by a witness who writes his own name as such." Yet, an unwitnessed mark may be proved and fulfil the law as to the signing of an instrument, and the burden of proof is on the payee to establish the genuineness of an unwitnessed mark."5

A signature made by a party, another person guiding his hand with his consent, is sufficient;" and it is not necessary in the execution of an instrument that the party executing it, if unable to write, touch the pen while the person authorized signs the name of the party."

A signature made in any manner out of the ordinary, though sufficient, as, for instance, one with a hand stamp," is to be avoided as likely to impair the means of proof," though usually a person may become bound by any mark or designation he may adopt, provided it be used as a substitute for his name and he intend to bind himself thereby." So, a signature may be made by using a name adopted by the signer, and under which he has carried on business," and even an indorsement in the figures "1. 2. 8,” upon a bill, the indorser clearly intending to bind himself, is sufficient," as illustrated in our treatment of contracts generally.

13. Signature to Joint, and Joint and Several Instruments. - Where an instrument, as a note, for instance, is signed by two or more persons, it may be a joint note, or joint and several note, which is to be ascertained from the language of the note, or the manner in which the obligation is expressed. It is a question of

34 45 Ala. 448 (1871); Cal. Civ. Code, Sec. 17 (1901); 162 Mass. 323 (1894).

356 Lane. L. Rev. (Pa.) 398 (1889); 4 Luz.

Leg. Reg. (Pa.) 4 (1875).

364 Wash. C. C. (U. S.) 262, 269 (1822). 379 Ind. App. 624 (1893).

38 L. R. 3 C. P. 28 (1867).

391 Rand. Com. Paper, Sec. 64.

40 33 Ill. 421 (1864).

413 Gray (Mass.) 334 (1855).

426 Hill (N. Y.) 443 (1841); see The Law

of Contracts.

intention." Thus, if the promising phrase be "we promise," or "we jointly promise," followed by the signatures of the makers, it is prima facie a joint promissory note-the joint obligation of the makers, and as individuals, not partners." In either form there is an indication that the makers intend to bind themselves jointly. If the phrase read "I promise to pay," and the instrument be signed by two or more persons, it is a joint and several obligation." So, the phrase "We or either of us" promise, or "We jointly and severally" promise, creates a joint and several obligation."

Where several officers or representatives of a corporation sign an instrument in which the promising phrase is joint and several in its construction, it will be the individual obligation of the makers;" but, in spite of the phrase creating individual liability, if the wording of the instrument, taken as a whole, mark the character of it as the obligation of the corporation, it will be taken as such, and not that of the individuals signing it."

14. Signature Induced by Fraud. - The object of a signature is to authenticate a document, as before mentioned. Where, then, a person is induced by fraud to sign a bill or note under the belief that he is signing a wholly different instrument, his signature is null and void, provided that in so signing he acted without negligence. If he make his signature without any intention of signing such an instrument, he cannot be held liable upon it." Thus, D, an old man with enfeebled sight, is induced to sign his name on the back of a bill, by being told that it is a railway guarantee which he had promised to sign. The bill is negotiated to a holder in due course; such holder cannot enforce D's liability as an indorser against him."

It was not the old man's intention to indorse a bill of exchange at all, but to sign a contract of an entirely different

43 38 Ind. 86 (1871).

♦♦ Ibid.; 114 Pa. 505 (1886).

45 25 111. 333 (1861); N. Y. N. I. L., Sec. 36 (7).

463 Ex. (Eng.) 3 (1848).

47 Ibid.; 3 El. & B. (Eng.) 1 (1854).

48 11 Iowa 82 (1860).

49 Chal. Dig. Eng. B. of E. Act (5th Ed.),

p. 277.

50 L. R. 4 C. P. (Eng.) 704 (1869).

nature. It was not his design, and, if he were guilty of no negligence, it was not even his fault that the instrument turned out to be a bill of exchange. It was as if he had written his name on a sheet of paper for the purpose of franking a letter, or in a lady's album, or on the fly leaf of a book, and there had already been, without his knowledge, a bill of exchange or promissory note payable to order inscribed on the other side of the paper. To make the case clearer, suppose the

bill or note on the other side of the paper in each of these cases to be written at a time subsequent to the signature, then the fraudulent misapplication of that genuine signature to a different purpose would have been a counterfeit alteration of a writing with intent to defraud, and would, therefore, have amounted to a forgery. In that case the signer would not have been bound by his signature, for two reasons: first, that he never in fact signed the writing declared on, and, second, that he never intended to sign any such contract."1

It is necessary, however, that a person, whose signature to an instrument is procured by fraud or circumvention and who afterwards desires to set up such fact as a defense to an action brought by a bona-fide holder for value to enforce his liability upon the instrument, should have used reasonable and ordinary precaution to avoid imposition. If able to read, he should examine the instrument carefully, or, if not able to read, he should procure it to be read by some one in whom he can place confidence. He should not act recklessly, and disregard all the usual precautions to learn the contents of the instrument, and then interpose the defense as against the assignee."

Negligence in signing an instrument, or in failing to ascertain the contents thereof, will render the signer liable to a bona-fide holder upon the principle of estoppel, although he may have been induced to sign by fraud or imposition practiced upon him. Where one has the opportunity and the power to ascertain with certainty the exact obligation he is assuming, and yet chooses to rely upon the statements of the person with whom he is dealing, and executes a negotiable

$1 L. R. 4 C. P. (Eng.) 704 (1869).

52 54 III. 196 (1870).

instrument without reading or examination, as against a bona-fide holder for value, he is bound by his act, and is estopped from claiming that he intended to sign an entirely different obligation, and that the statements upon which he relied were false; his own negligence precludes him from setting up such a defense."3

15. Signature by Procuration.-A signature by procuration has reference to agency in signing an instrument, chiefly to denote the qualification of authority. It operates as notice that the agent has but a limited authority to sign and the principal is only bound by such signature if the agent in so signing were acting within the actual limits of his authority."

The term is a rare one in the United States, but frequently used in England and other foreign countries. Its use is thus illustrated: B, who carries on business for himself, and is also in partnership with S, goes abroad, having given S an authority to accept bills in his name in respect to his private business. S accepts a bill in B's name in respect to the partnership business, signing "J B, per proc. H S"; the bill is negotiated. B is not liable on this acceptance."

55

DATE OF AN INSTRUMENT

16. An instrument shall be dated; that is a formality which is important, though not absolutely essential. It is irregular to issue an instrument undated, though the omission to date an instrument does not invalidate it."

56

By statute law, in England, Canada, and the United States, where an instrument expressed to be payable at a fixed period after date is issued undated, or where the acceptance of an instrument, payable at a fixed period after sight is undated, any holder may insert therein the true date of issue or acceptance, and the instrument shall be payable

5356 N. Y. 137 (1874).

54 Eng. B. of E. Act, Sec. 25; N. Y. N. I. L., Sec. 40.

55 Chal. Dig. Eng. B. of E. Act (5th Ed.) p. 75.

56 Eng. B. of E. Act, Sec. 3 (4); N. Y. N. I. L., Sec. 25; Pa. N. I. L., Sec. 6, and other states.