143. Van Buskirk v. State Bank, 35 Colo. 142, 83 Pac. 778, S. C. sec. 189. 152. The liabilities of the drawer of a bill of exchange are fixed by the law of the place where he draws it. So a bill drawn in New York and payable in Austria is a foreign bill (sec. 129), and must be protested in order to hold the drawer, although by the law of Austria no protest is required. Amsinck v. Rogers, 189 N. Y. 252, 82 N. E. 134, S. C. in Appellate Division, infra, sec. 185.

153. London & River Plate Bank v. Carr, 54 Misc. R. 94, 105 N. Y. S. 679. 155. Amsinck v. Rogers, 103 App. Div. 428, 93 N. Y. S. 87, S. C. sec. 185.

160. Aebi v. Bank of Evansville, 124 Wis. 73, 102 N. W. 329, S. C. sec. 186.

184. Alexander v. Hazelrigg (Ky.), 97 S. W. 353, S. C. sec. 55; Young v. American Bank (No. 1.), 44 N. Y. Misc. R. 305; 89 N. Y. S. 913; Young v. American Bank (No. 2), 44 N. Y. Misc. R. 308, 89 N. Y. S. 915; Sherman v. Goodwin (Arizona), 89 Pac. 517; Baumeister v. Kuntz (Fla.), 42 So. 886, S. C. secs. 64-1, 109.

A complaint on a note payable to the maker's order which fails to allege indorsement by the maker is defective. Simon v. Mintz, 51 Misc. Rep. 670, 101 N. Y. S. 86.

An instrument reading "Having been cause of a money loss to my friend X, I have given her three thousand dollars. I hold this amount in trust for her and one year after date or thereafter, on demand, I promise to pay to the order of X, her heirs or assigns, three thousand dollars with interest" is a valid promissory note. As it does not appear upon the face that there was no consideration or an invalid consideration, it will be presumed that there was a valid consideration. In the absence of evidence to the contrary the court must assume that the money loss referred to was legally chargeable to the maker. Hickok v. Bunting, 92 App. Div. 167, 86 N. Y. S. 1059.

A stipulation in a promissory note that "no extension of time of payment, with or without our knowledge, by the receipt of interest or otherwise, shall release us or either of us from the obligation of payment" is an express contract that the time of payment may be extended to any one or all of the sureties, guarantors, indorsers, or makers of the note without notice to all or any one of them and renders the note non-negotiable. Union Stockyards Nat. Bank v.

Bolan (Idaho), 93 Pac. 508.

185. B. & O. Ry. Co. v. First Nat. Bank, 102 Va. 753, 47 S. E. 837, S. C. sec. 189; Schlesinger v. Kurzrok, 47 Misc. Rep. 634, 94 N. Y. S. 442, S. C. sec. 187; State Bank v. Weiss, 46 N. Y. Misc. 93, 91 N. Y. S. 276, S. C. sec. 137; Van Buskirk v. State Bank, 35 Col. 142, 83 Pac. 778, S. C. sec. 189; Mfg. Co. v. Summers, 143 N. C. 102, 55 S. E. 522, S. C. secs. 53, 59; Unaka Nat. Bank v. Butler, 113 Tenn. 574, 83 S. W. 655, S. C. secs. 9-5, 56; Columbian Banking Co. v. Bowen (Wis.), 114 N. W. 451, S. C. secs. 71, 72–2; Wisner v. First Nat. Bank (Pa.), 68 Atl. 955, S. C. secs. 132, 137.

An instrument not drawn on a bank is not a check although it may be so styled on its face. Amsinck v. Rogers, 103 App. Div. 428, 93 N. Y. S. 87, affirmed 189 N. Y. 252, 82 N. E. 134, S. C. sec. 152.

186. Mfg. Co. v. Summers, 143 N. C. 102, 55 S. E. 522, S. C. secs. 53, 59; Moskowitz v. Deutsch, 46 Misc. 603, 92 N. Y. S. 721, S. C. sec. 124.

Where the payee of a clerk indorsed and deposited it in his own bank, which credited him with the amount as cash to be drawn against, the bank became prima facie the owner of the check and not a mere agent to collect, and in order to charge the payee as indorser the bank must present the check to the drawee bank within a reasonable time. Aebi v. Bank of Evansville, 124 Wis. 73, 102 N. W. 329.

The indorser of a check does not waive delay in presentment and renew his obligation by procuring and indorsing a duplicate of a lost check from liability upon which he has been discharged by such delay. Ib.

ment.

Although under sec. 185 a check is a bill of exchange payable on demand, it is intended for immediate use and not to circulate as a promissory note. Therefore the transfer of a check to successive holders, where it is drawn and delivered in the place where the drawee bank is located, does not extend the time for presentIf the check is delivered on one day and is not presented before the close of banking.hours the next business day, the drawer is discharged to the extent of any loss suffered from the failure to present. Gordon v. Levine, 194 Mass. 418, 80 N. E. 505; Matlock v. Scheuerman (Oregon), 93 Pac. 823, S. C. secs. 25, 53, 56. See Plover Sav. Bank v. Moodie, supra, sec. 71, as to forwarding checks where the drawee bank is in another place.

Where a check is negotiated at a town distant from the drawee bank it is not negligence to forward it for collection through the mails, even though it might have been more expeditiously sent by messenger. Nor is it necessarily negligence to send it to the drawee instead of to a third person for presentation, where payment was refused because of lack of funds of the drawer and its dishonor could not have been ascertained sooner, if it had been forwarded to a collecting agent. Citizens' Bank v. First Natl. Bank (Iowa), 113 N. W. 481, S. C. sec. 71. See also Plover Sav. Bank v. Moodie, supra, sec. 71.

The payee of a check delivered on Sunday in payment of a debt cannot hold the drawer on non-payment by the bank, although the check was presented within a reasonable time. And even though the check was invalid because delivered on Sunday, the payee cannot recover on the original claim against the drawer if he failed to present the check for payment with due diligence before the drawee bank failed. Gordon v. Levine (Mass.), 83 N. E. 861, S. C. sec. 53.

187. Where the drawer of a check before delivery to the payee procures its certification and the bank fails before presentation for payment, the bank is not liable on the check to the drawer but only to the holder and therefore the drawer on receiving the check from the payee cannot set it off against a debt to the bank. Schlesinger v. Kurzrok, 47 Misc. R. 634, 94 N. Y. S. 442.

Notice to a bank by a depositor that his certified check, indorsed in blank, had been lost and to stop payment would not justify the bank in refusing payment to a holder in due course. Poess v. Twelfth Ward Bank, 43 Misc. R. 45, 86 N. Y. S. 857, semble, S. C. secs. 16, 51. See also Unaka Bank v. Butler, supra, sec. 56, cf. Elliott v. Worcester Trust Co., supra, sec. 87, and Pease & Dwyer v. State Nat. Bank, infra, sec. 189.

The payee of a check given to him for value transferred it, also for value, to plaintiff, but without indorsing it. The payee died the next day, and the

drawer, although having no equities against the check, stopped payment. Plaintiff subsequently sent the check to the drawee bank, and the teller certified it without asking any questions. Held, that under sec. 49 N. I. L. the title of the payee vested in plaintiff and that the bank was liable to him upon its certification. Meuer v. Phenix Nat. Bank, 94 App. Div. 331, 88 N. Y. S. 83, S. C. sec. 49.

188. Schlesinger v. Kurzrok, 47 Misc. R. 634, 94 N. Y. S. 442, S. C. sec. 187; Meuer v. Phenix Nat. Bank, 94 App. Div. 331, 88 N. Y. S. 83, S. C. secs. 49, 187.

The mere acceptance by the payee of a check certified by the procurement of the drawer is not a discharge of the drawer, even though the bank at the time the check was certified transferred the amount to the credit of the payee, such transfer being without the knowledge or acquiescence of the payee. Culli. nan v. Union Surety & Guaranty Co., 79 App. Div. 409, 80 N. Y. S. 58.

But where the holder procures certification of a check, this is payment to the amount of the check, and where the check contained a statement on the back that it was to be in full payment, such procuring of certification is an acceptance of the check in full payment. St. Regis Paper Co. v. Tonawanda Co., 107 App. Div. 90, 94 N. Y. S. 946.

So also where the holder procured certification of a check sent in a letter stating that it was in full payment, although the holder after the certification wrote to the drawer and declined to accept the check in full payment. Dunn v. Whalen, 120 App. Div. 729, 105 N. Y. S. 588. The N. I. L. was not cited in this case.

189. Schlesinger v. Kurzrok, 47 Misc. R. 634, 94 N. Y. S. 442, S. C. sec. 187; Meuer v. Phenix Nat. Bank, 94 App. Div. 331, 88 N. Y. S. 83, S. C. secs. 49, 187; Raesser v. Nat. Exch. Bank, 112 Wis. 591, 88 N. W. 618; Lonier v. State Savings Bank, 149 Mich. 483, 112 N. W. 1119.

Before its payment or certification by the bank the drawer of a check may countermand the order, and payment thereafter to the payee by the bank is wrongful. Pease & Dwyer v. State Nat. Bank, 114 Tenn. 693, 88 S. W. 172, cf. Unaka Bank v. Butler, supra, sec. 56; Poess v. Twelfth Ward Bank, supra, sec. 187. A bank is under no legal obligation to the holder of an unaccepted and uncertified check. Payment is therefore voluntary and cannot be recovered back from a bona fide holder on the ground that the drawer had previously countermanded payment of the check. National Bank v. Berrall, 70 N. J. L. 757, 58 Atl. 189.

A drawee bank paid and charged to the account of the drawer checks indorsed by an agent of the payee who had no authority to indorse or collect the checks, and who appropriated the money. Held, that the bank was not liable to the payee in assumpsit for money had and received. B. & O. Ry. Co. v. First Nat. Bank, 102 Va. 753, 47 S. E. 837. It would seem that the plaintiff misconceived his remedy and that he should have sued the bank for the conversion of checks belonging to him.

A bank being asked to cash a check on another bank, telephoned to the drawee bank and was informed that the check was " good" or "all right" and thereupon cashed the check, but before presentment for payment the drawer

notified the drawee bank not to pay the check. Held, the drawee bank was not liable on the check, because it was not accepted or certified in writing. Van Buskirk v. State Bank, 35 Colo. 142, 83 Pac. 778.

191. "Bearer," see Mayers v. McRimmon, supra, sec. 49. The maker of a note who has obtained possession of it by theft after it has been indorsed in blank by the payee is the bearer within the meaning of the statute. Mass. Nat. Bank v. Snow, 187 Mass. 159, 72 N. E. 959, S. C. secs. 9-5, 16, 56, 124.

66

Holder," see Mayers v. McRimmon, supra, sec. 49; Farmers' Bank v. Bank of Rutherford, supra, sec. 66; New Haven Mfg. Co. v. New Haven Pulp Co., supra, sec. 48; Vander Ploeg v. Van Zuuk, supra, sec. 14.

"Indorsement," see Louisville Co. v. International Trust Co., supra, sec. 30. 192. Rouse v. Wooten, 140 N. C. 557, 53 S. E. 430, S. C. sec. 89; Deahy v. Choquet, 28 R. I. 338, 67 Atl. 421, S. C. sec. 64–1.

An accommodation maker is a person primarily liable even though he add the word "surety" to his signature or the fact that he signed for accommodation is otherwise known to the holder. See cases under sec. 119, supra.

193. Mfg. Co. v. Summers, 143 N. C. 102, 55 S. E..522, S. C. secs. 53, 59; McLean v. Bryer, 24 R. I. 599, 54 Atl. 373, S. C. secs. 53, 64-1; Gordon v. Levine, 194 Mass. 418, 80 N. E. 505, S. C. sec. 186; Citizens' Bank v. First Natl. Bank (Iowa), 113 N. W. 481, S. C. secs. 71, 186. See also cases under sec. 71.

In the absence of any evidence to bring the case within this section, a demand on a promissory note payable on demand must be made within sixty days to charge an indorser, that having been the law in this state prior to the Negotiable Instruments Law. Merritt v. Jackson, 181 Mass. 69, 62 N. E. 987, S. C. sec. 71.

196. National Exchange Bank v. Lester, supra, sec. 124.

INDEX

TO THE NEGOTIABLE INSTRUMENTS LAW.

[The references are to the sections.]

ACCEPTANCE, meaning of, 191, 132.

how made on bill, 132, 133.

by separate instrument, 134.

of non-existing bill, 135.

time allowed for, 136.

by destruction or detention of bill, 137.

of incomplete, overdue, or dishonored bill, 138.

of bills in a set, 181.

general or qualified, 139, 140.

to pay at particular place, 140.
forms of qualified, 141.

qualified, rights of parties, 142.

ACCEPTANCE FOR HONOR, when, by whom, and for what sum may be

made, 161.

how made, 162.

for whom made, 161, 163.

liability of acceptor for honor, 164, 165.

maturity of bill payable after sight accepted for honor, 166.

protest of bill accepted for honor, 167.

presentment for payment, 168.

delay in presentment excused when, 169.

protest of dishonored, 170.

ACCEPTOR, engagement and admissions of, 62.

charged without presentment, 70.

ACCOMMODATION INSTRUMENT, discharged by payment by accom-

modated party, 119.

liability of accommodation party, 29.

accommodated party paying may not reissue, 121.

ACTION, meaning of, 191.

AGENT, signature by, 19.

when personally liable, 20.

signature "by procuration,” 21.

negotiating instrument liable when, 69.

(See NOTICE OF DISHONOR.)

ALTERATION, effect of material, 124.

rights of holder in due course, 124.
what alterations material, 125.

AMBIGUOUS INSTRUMENT, construction of, 17.
ANTECEDENT DEBT, constitutes value, 25.

ANTEDATED INSTRUMENT, not invalid, 12.

when title acquired, 12.