promissory note, payable on demand, and the maker thereof is not entitled to notice. Bailey v. Southwestern R. R. Bank, 11 Fla. 266. Notice is not required to render a firm liable where all the members of the firm are members of the house which drew the bill. West Branch Bank v. Fulner, 3 Pa. St. 399.

Right to expect paper to be honored.-Life Insurance Company v. Pendleton, 112 U. S. 708; Wollenweber v. Ketterlinn, 17 Pa. St. 389. Although the drawer has no funds in the hands of the drawee, yet if he has a right to expect to have funds there to meet the bill, or if he has a right to expect the bill to be accepted by the drawee in consequence of an agreement or an arrangement with him, or if upon taking up the bill he would be entitled to sue the drawee or any other party to the bill, then in every such case he is entitled to strict notice of dishonor. Pitts v. Jones, 9 Fla. 519.

§ 115. When notice need not be given to indorser.— Notice of dishonor is not required to be given to an indorser in either of the following cases:

1. Where the drawee is a fictitious person or a person not having capacity to contract, and the indorser was aware of the fact at the time he indorsed the instrument;

2. Where the indorser is the person to whom the instrument is presented for payment;

3. Where the instrument was made or accepted for his accommodation.

Where drawee is a fiictitious person.-See note to section 9.

Where instrument is presented to indorser.-For cases applying the statute, see Electric Mfg. Co. v. Hodge, 181 Mo. App. 232; In re Swift, 106 Fed. Rep. 65.

Paper made or accepted for indorser's accommodation.-See French v. Bank of Columbia, 4 Cranch, 141; Ross v. Bedell, 5 Duer, 462; Blenderman v. Price, 50 N. J. L. 296; Torrey v. Frost, 40 Me. 74. Where one, as indorser, procures the note of another to be discounted by a bank for his credit, and at the time the discount is effected makes a distinct promise to the bank to pay the note at maturity, his liability is absolute, not conditional, and protest and

notice of non-payment are unnecessary. Sieger v. Second National Bank, 132 Pa. St. 307. So, where a number of stockholders indorse before delivery, a note made for the benefit of the corporation, the note may be regarded as made for their accommodation, so that notice of dishonor is excused under that provision of the Negotiable Instruments Law, which dispenses with notice where the instrument was made or accepted for the indorsers' accommodation. Mercantile Bank v. Busby, 120 Tenn. 652. Defendants were respectively president and secretary of a corporation and also directors and large stockholders. The corporation had no assets whatever from which it could realize money, but was engaged in the execution of two contracts, which defendants regarded as valuable. For the purpose of continuing with performance of the contracts, they borrowed money from plaintiff's testator, giving a note which they signed on behalf of the corporation, and which with another director, they also indorsed individually. When the note matured, the company had no money with which to pay it, as defendants, its executive officers knew: Held, that under this section, the holder was not required to present the note to the company for payment, or to give the defendants notice of dishonor. Luckenbach v. McDonald, 164 Fed. Rep. 296, 95 C. C. A. 604.

§ 116. Where notice of non-acceptance has been given. Where due notice of dishonor by non-acceptance has been given, notice of a subsequent dishonor by non-payment is not necessary, unless in the meantime the instrument has been accepted.

See De la Torre v. Barclay, 1 Stark, 308; Campbell v. French, 6 T. R. 200.

§ 117. Omission to give notice of non-acceptancesubsequent holder.-An omission to give notice of dishonor by non-acceptance does not prejudice the rights of a holder in due course subsequent to the omission.

Variant readings.-In Wisconsin the following is added at the end of the section: "but this shall not be construed to relieve any liability discharged by such omission." This amendment is harmless; but the necessity for it would be difficult to discover.

§ 118. Protest authorized in all cases of dishonorwhen required. Where any negotiable instrument has been dishonored it may be protested for non-acceptance or non-payment, as the case may be; but protest is not required, except in the case of foreign bills of exchange.

Variant readings.-In Vermont the following is added at the end of the section: "but this provision shall not be held to dispense with demand and notice of dishonor as provided by §§ 71 and 90."

Rule at common law. This section makes no change in the law. See Bay v. Church, 15 Conn. 129; Legg v. Vinal, 165 Mass. 555; Tate v. Sullivan, 30 Md. 464; Weems v. Farmers' Bank, 15 Md. 231; Ricketts v. Pendleton, 14 Md. 320; Sumner v. Kimball, 2 Wis. 524; Stephenson v. Dickson, 24 Pa. St. 148. Under this section the drawer of a foreign bill is discharged unless the bill be protested. Amsinck v. Rogers, 189 N. Y. 252; S. C., 103 App. Div. 428.

Certificate of notary.-While protest is not necessary, except in case of foreign bills, it is very convenient in all cases, because it affords the easiest and most certain method of proving the fact of dishonor and the notice to the indorsers. The statutes of nearly all, if not all, of the states make the certificate of the notary prima facie evidence of these facts. Under the statute of Pennsylvania, making the certificate of a notary public evidence of the facts therein contained, a notary's certificate that he had protested a note, and notified the endorsers of the presentation, demand and refusal, is prima facie evidence that notice was given in compliance with the requirements of the Negotiable Instruments Law. Scott v. Brown, 240 Pa. St. 328.

Foreign bills. As to what are foreign bills, see section 129. For other provisions relative to protest, see sections 152-160.

Protest of notes not required.-Statute applied in Demelman v. Brazier, 198 Mass. 458; Sherman v. Ecker, 59 Misc. (N. Y.) 216; McBride v. Illinois Nat. Bank, 138 App. Div. (N. Y.) 346.

ARTICLE IX.

DISCHARGE OF NEGOTIABLE INSTRUMENTS.

Section 119. How instrument discharged.

120. When person secondarily liable is discharged.

121. Payment by person secondarily liableeffect of.

122. Renunciation by holder.

123. Unintentional cancellation.

124. Alteration of instrument-effect of.

125. What constitutes a material alteration.

§ 119. How instrument discharged.-A negotiable instrument is discharged:

1. By payment in due course by or on behalf of the principal debtor;

2. By payment in due course by the party accommodated, where the instrument is made or accepted for accommodation;

3. By the intentional cancellation thereof by the holder;

4. By any other act which will discharge a simple contract for the payment of money;

5. When the principal debtor becomes the holder of the instrument at or after maturity in his own right. Variant readings.-In Illinois subdivision four is omitted.

Stamping paper "paid."-The mere fact that the payee stamps the word "paid" upon the paper does not constitute payment. Hanna v. McCrory, 141 Pac. Rep. (N. Mex.) 996.

Forged paper.-As to the effect of payment made by a drawee where the drawer's signature is forged, see note to section 62.

Payment by stranger.-When one who is not a party to the paper pays his money for it, and "takes it up," the presumption is that he has bought it, and not paid it off. Cantrell v. Davidson, 180 Mo. App. 410.

Possession as evidence of payment. The possession of a bill of exchange by the acceptor after it has been in circulation is prima facie evidence that it has been paid by him. Baring v. Clark, 19 Pick. 220. So the possession of a promissory note by the maker. First Nat. Bank v. Harris, 7 Wash. 139; Perez v. Bank of Key West, 36 Fla. 467. But see Miller v. Kreiter, 76 Pa. St. 75; Eckert v. Cameron, 7 Wright, 120; Korkemas v. Mack soud, 131 App. Div. (N. Y.) 728.

Where renewal note is a forgery. The surrender of a genuine note of a town in exchange for an instrument purporting to be a renewal note forged by the treasurer of the town does not extinguish the surrendered note, which, although not to be found, can be sued upon by the holder. Bass v. Inhabitants of Wellesley, 192. Mass. 526.

Burden of proof.-Where the defendant admits the execution of a note, the burden of showing payment is on him. Guano Company v. Marks, 135 N. C. 59; Swan v. Carawan, 168 N. C. 472.

Payment by indorser.-A payment made to the holder of a promissory note by an indorser, not as agent for the maker, but simply in discharge of his obligation as indorser, where the note was executed by the maker for value, does not enure to the benefit of the latter, and in an action upon the note he is liable for the whole amount thereof, notwithstanding the payment. Madison Square Bank v. Pierce, 137 N. Y. 444. In the case cited it was said: "To the extent of the money paid, the indorser becomes equitably entitled to be substituted to the rights and remedies of the holder, and becomes, pro tanto, the beneficial owner of the debt; so that the maker's obligation to pay the note in full, at first due the holder solely in his own right, becomes, after the part payment by the indorser, still wholly due to the holder, but partly in his own right and partly as trustee for the indorser. A court of law cannot split the note into parts, and must act upon the legal interest and owner