Bank v. Sandmeyer, 164 Ill. App. 98 (N. I. L.); Conway v. Zender, 154 Wis. 479, 143 N. W. 162 (N. I. L.). That indorsers on a note made their indorsements in consequence of unlawful inducements held out to them by the maker, for which the payee was not responsible, did not preclude the payee from recovering from the irregular indorsers. Ford v. Shapiro, 207 Mass. 108, 92 N. E. 1029 (N. I. L.).

An irregular indorser, who signs for the accommodation of the maker may on taking up the note sue the maker on the note. Heaton v. Dickson, 153 Mo. App. 312, 133 S. W. 159. An accommodation maker has, however, no action on the note against the accommodated payee, but must sue for indemnity. Morgan v. Thompson, 72 N. J. Law, 244, 62 Atl. 410 (N. I. L.). Where the first of two irregular indorsers took up the note, his action against the second was held to be for indemnity. Wilson v. Hendee, 74 N. J. Law, 640, 66 Atl. 413 (N. I. L.). An irregular indorser indorsed for the accommodation of the maker. His action on the note was barred by the statute of limitations. But it was held that he nevertheless had an action for indemnity against the maker. Blanchard v. Blanchard, 201 N. Y. 134, 94 N. E. 630, 37 L. R. A. (N. S.) 783 (N. I. L.). The irregular indorser, unlike the ordinary indorser, has no power under section 121, N. I. L., to reissue the instrument after taking it up. Quimby v. Varnum, 190 Mass. 211, 76 N. E. 671 (N. I. L.). The same defenses as to legality of consideration are available to an irregular indorser under these sections as to the maker for whose accommodation he signed. Leonard v. Draper, 187 Mass. 536, 73 N. E. 644 (N. I. L.), semble; Willard v. Crook, 21 App. D. C. 238 (1903). Compare Packard v. Windholz, 88 App. Div. 365, 84 N. Y. Supp. 666, affirmed 180 N. Y. 549, 73 N. E. 1129 (1905). The liability of irregular indorsers had been the subject of legislation in various states prior to the adoption of the N. I. L. See Daniel, Neg. Inst. § 714; Rand. Com. Paper, §§ 831, 836, 838, 839, 844.

NOBT.B.& N.(4TH ED.)-13

CHAPTER V

OF THE NATURE OF THE LIABILITIES OF THE PARTIES

69. Acceptor and Maker.

70. Facts Which the Acceptor Admits.

71. Facts Which the Acceptor does not Admit.

72-73. Acceptor Supra Protest.

73a-76.

77.

78.

79.

Drawer and Indorser.

Undertaking of Drawer.

Warranties of Indorser.

Warranties of Indorser without Recourse-Of Transferror by Delivery.

80. Damages against the Acceptor, Maker, Drawer, and Indorsers upon the Bill or Note and upon the Warranties. 81-83. Accommodation Parties and Persons Accommodated. 83a-83b. Conflict of Laws.

ACCEPTOR AND MAKER

69. The acceptor and maker each promises the payee and subsequent holders that he will pay the bill or note according to its tenor at the time of signing.1

1 N. I. L. §§ 60, 62. N. I. L. § 70, provides: "Presentment for payment is not necessary in order to charge the person primarily liable on the instrument; but if the instrument is by its terms, payable at a special place, and he is able and willing to pay it there at maturity, such ability and willingness are equivalent to a tender of payment upon his part. But, except as herein otherwise provided, presentment for payment is necessary in order to charge the drawer and indorsers." This declares the law as laid down in this country. In England there was formerly great diversity of opinion as to the necessity of presentment to charge the acceptor when a bill was accepted payable at a particular place. It was finally settled by the house of lords (Rowe v. Young, 2 Brod. & B. 165) that, where a bill was so accepted, presentment at the place must be proved. This led to the passage of Onslow's Act (1 & 2 Geo. IV, c. 78), which enacted that an acceptance payable at a particular place should be deemed a general acceptance unless payable there only. The effect of the act was that, except in the latter case, presentment was not necessary to charge the acceptor. Selby v. Eden, 3 Bing. 611; Halstead v. Skelton, 5 Q. B. E. 86. The act did not apply to notes, and, before

Under § 41, we commented upon the shifting relations of the holder with the drawer and the drawee or acceptor of a bill before and after acceptance. And in a later section we shall show that the phrase, "The acceptor of a bill and the maker of a note is the principal debtor thereon," means

and after the act, in case of a note payable at a particular place, presentment has been necessary to charge the maker. Sanderson v. Bowes, 14 East, 500; 2 Ames Cas. Bills & N. 93, note 1. Such is the result reached under the Canadian Bills of Exchange Act. Albert v. Marshall, 13 East, L. R. 514; Johnson v. L'Heureux, 27 West, L. R. 21. In the United States the courts have almost universally held that presentment of a bill or note, although payable at a particular place, is not necessary to charge the acceptor or maker; the only consequence of failure to present being that the acceptor or maker, if he was ready at the time and place, may plead the fact in bar of damages and costs. Wallace v. McConnell, 13 Pet. (U. S.) 136, 10 L. Ed. 95; Cox v. National Bank of New York, 100 U. S. 704, 25 L. Ed. 739; Carter v. Smith, 9 Cush. (Mass.) 321; Hills v. Place, 48 N. Y. 520, 8 Am. Rep. 568; Lazier v. Horan, 55 Iowa, 77, 7 N. W. 457, 39 Am. Rep. 167; Montgomery v. Tutt, 11 Cal. 307; Montgomery v. Elliott, 6 Ala. 701; Peabody Ins. Co. v. Wilson, 29 W. Va. 543, 2 S. E. 888; FARMERS' NAT. BANK OF ANNAPOLIS v. VENNER, 192 Mass. 531, 78 N. E. 540, 7 Ann. Cas. 690 (N. I. L.), Moore Cases Bills and Notes, 129; Hyman v. Doyle, 53 Misc. Rep. 597, 103 N. Y. Supp. 778 (N. I. L.); Church v. Stevens, 56 Misc. Rep. 572, 107 N. Y. Supp. 310 (N. I. L.). See Piper v. Hayward, 71 Misc. Rep. 41, 127 N. Y. Supp. 240 (N. I. L.). Compare, YOUNG v. AMERICAN BANK, 44 Misc. Rep. 308, 89 N. Y. Supp. 915 (N. I. L.), Moore Cases Bills and Notes, 21. In German American Bank of Rochester v. Milliman, 31 Misc. Rep. 87, 65 N. Y. Supp. 242 (N. I. L.), the action was by the indorsee against the maker of a note payable at a bank whose banking hours were from 10 a. m. to 4 p. m. During banking hours of the day of maturity presentment was made at the place of payment and payment refused by the bank because it had no funds of the maker. At 3:50 p. m. the maker deposited funds for payment there, and then offered to pay the face of the note and interest to the plaintiff indorsee, who refused to accept this offer because the protest fees were not also tendered. This tender was kept good by deposit in a bank until this action was brought, and by payment into court. The trial court gave judgment for the plaintiff, including costs and protest fees. This judgment was modified, so as not to include costs or protest fees. The court said that the note was not finally dishonored until the close of the day of maturity, and therefore there was a valid tender of the amount due from the maker within section 70, N. I. L. See Modern Laundry Co. v. Dilley (Ark.) 163 S. W. 1197.

that as against them there is no necessity for presentment at a particular place, or of protest, or of notice of dishonor, and that all parties look to them to eventually pay the instrument. As has been shown, the bill and its acceptance amounts to a transfer to the holder of property of the drawer in the acceptor's hands to the amount of its face value. In technical phrase, there is a direct privity of contract between the holder and acceptor, and at common law an acceptance was evidence of money had and received by the acceptor to the use of the holder. The drawer is presumed to draw upon his funds in the hands of the drawee; the payee is presumed to have given a full value for the bill; and, when the drawee accepts the bill, he becomes an immediate debtor to the payee, as upon a valuable consideration paid to the drawer by the payee and by the drawer to the acceptor of the funds in the hands of the acceptor. The acceptor stands in the same relation to the payee as the maker of a note does to the indorsee; and the drawer is regarded in the light of an indorser.

But the student must not identify the acceptor of a bill and the maker of a note further than that they make the same promise to the payee and subsequent holders. Beyond this point they differ. An acceptor enters into a contract relation based upon rights or liabilities accruing to or against the drawer, payee, and perhaps indorsers. The maker can make but one contract, and that is with the payee. All other rights and liabilities arising to or against the makers of notes are merely a transfer of such as the payee himself has. But with the acceptor, there is a call for the adjustment of the conflicting rights of drawer and

• In Lumbermen's Nat. Bank v. Campbell, 61 Or. 123, 121 Pac. 427 (N. I. L.), it was held that where a person signs his name on the front side of the note, under a maker's signature, he is liable as a co-maker, and cannot, by parol evidence, show that it was the understanding of the plaintiff payee with him that he was to be bound as an indorser only. The court treats the case as settled by the N. I. L. But the instrument seems to have been non-negotiable. See Westbay v. Stone, 112 Mo. App. 411, 87 S. W. 34.

3 Black v. Caffe, 7 N. Y. 281; Wolcott v. Van Santvoord, 17 Johns. (N. Y.) 248, 8 Am. Dec. 396.

acceptor, drawer and payee, payee and acceptor, and perhaps of indorsers with each of these parties and with each other prior to the time of acceptance-a body of rights and liabilities distinct from any involved in the making of a note. These will be discussed therefore in the sections next following. All that is meant to say here is that there is no difference in their contract classification between the promise of the maker and that of the acceptor to pay the money called for in the instrument. They are alike, independently of all other contract rights, prima facie promises to pay the instrument when it becomes due according to the tenor of the instrument."

FACTS WHICH THE ACCEPTOR ADMITS

70. The acceptor of a bill of exchange, by the acceptance, admits: "

(a) The genuineness of the drawer's signature.

(b) The existence of the drawer.

(c) The capacity of the drawer to make the draft. (d) His authority to draw for the sum named. (e) Where the bill is to the payee's order, the existence of the payee and that the payee was competent to make the indorsement."

What are called the "warranties" of the acceptor are a phase of the legal doctrine of estoppel. "An estoppel," says Lord Coke, "is when a man is concluded by his own act or acceptance to say the truth." And with bills the acceptor is precluded from testifying in the instances given in the

4 Bull v. Sims, 23 N. Y. 570; FAIRCHILD v. OGDENSBURGH, C. & R. R. CO., 15 N. Y. 337, 69 Am. Dec. 606, Moore Cases Bills and Notes, 69; Miller v. Thomson, 3 Man. & G. 576; Warden & Vestrymen of St. James Church v. Moore, 1 Ind. 289; Marion & M. R. R. v. Hodge, 9 Ind. 163.

5 Hoffman v. Bank of Milwaukee, 12 Wall. 181, 20 L. Ed. 366.

N. I. L. § 62. The wording of the English B. E. A., shows better the reasons underlying these rules. Section 88.

7 These rules probably apply to the acceptor supra protest also.