53 Fla. 340; Farquhar Co. v. Higham, 16 N. D. 106; McCarthy v. Kepreta, 24 N. D. 395; Lightner v. Roach, 95 Atl. Rep. (Md.) 62; First Nat. Bank v. Meyer, 152 N. W. Rep. (N. D.) 657; Trustees of Am. Bank v. McComb, 105 Va. 473; Payne v. Zell, 98 Va. 249; American Trust Co. v. Canevin, 184 Fed. Rep. 657. And as the statute was adopted for the purpose of producing uniformity, the courts, in construing it, seek to aid that purpose. See cases cited above.

Enactment in other states-Judicial notice.-But though the courts in construing the act take cognizance of the fact that it has been adopted in other states, yet, in a case arising under the laws of another state, the court will not take judicial notice that it has been enacted in that state; but, in the absence of evidence upon the subject, will presume that the law of such state is the same as the common law before the enactment. Demelman v. Brazier, 193 Mass. 589. Hence, the adoption of the statute in the state where the cause of action arose must, where the action is brought in another state, be proved as a fact. But see Gleason v. Thayer, 87 Conn. 248, 251.

Rule in Federal court.-While doubt has sometimes been expressed as to how far the Federal courts would be bound by the statute, the question appears to be simple enough upon principle. A man making, or drawing, or indorsing a negotiable instrument does so with respect to the law as it exists at the time. If there is no statute on the subject, then the contract is made with reference to the law merchant, and as to what this law is the Federal courts are not bound by the decisions of the State courts. But where the law under which the parties contract is statutory, then it is the statute, and not the law merchant, by which the contract is to be governed; and the Federal court in such case has not to determine what the law is, but has merely to apply the statute. Hence, it has been held that though the Federal court is not bound to follow the view expressed by the highest court of the state as to any rule of the law merchant, yet where the state has enacted the Negotiable Instruments Law, and its provisions are applicable, the Federal court is bound to give effect to the statute. Smith v. Nelson Land & Cattle Co., 212 Fed. Rep. 56. And in Schmidt v. Bank of Commerce, 234 U. S. 64, the Supreme Court appears to have assumed that the statute would apply.

§ 191. Definitions and meaning of terms.—In this act, unless the context otherwise requires:

"Acceptance" means an acceptance completed by delivery or notification.

"Action" includes counter-claim and set-off.

"Bank" includes any person or association of persons carrying on the business of banking, whether incorporated or not.

"Bearer" means the person in possession of a bill or note which is payable to bearer.

"Bill" means bill of exchange, and "note" means negotiable promissory note.

"Delivery " means transfer of possession, actual or constructive, from one person to another.

"Holder" means the payee or indorsee of a bill or note, who is in possession of it, or the bearer thereof. "Indorsement" means an indorsement completed by delivery.

"Instrument means negotiable instrument.

"Issue " means the first delivery of the instrument, complete in form, to a person who takes it as a holder. "Person" includes a body of persons, whether incorporated or not.

"Value" means valuable consideration.

"Written" includes printed, and "writing" includes print.

§ 192. Primary and secondary liability.—The person "primarily" liable on an instrument is the person who by the terms of the instrument is absolutely re66 secquired to pay the same. All other parties are ondarily" liable.

Variant readings.-In Kansas the last sentence of this section is omitted.

Construction of section.-This section is to be construed in connection with section 18, which provides that "no person is liable on the instrument whose signature does not appear thereon;" and also with section 127, which provides that "the drawee is not liable on the bill unless and until he accepts the same;" and with section 189, which provides that "the bank is not liable to the holder unless and until it accepts or certifies the check." These are not, by the terms of the instrument, absolutely required to pay the same until such acceptance or certification. In Rouse v. Wooten (140 N. C. 557, 558), it was said: "A surety comes squarely within the definition of a person whose liability is primary, for he is by the terms of the instrument absolutely required to pay the same." But ob- . viously this would not be so in the case of one signing as guarantor," since he is liable only where there is default by the party whose obligation he has guaranteed.

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Accommodation maker.-The question whether a party is "primarily" or "secondarily" liable is to be determined by his relation to the paper itself, and not by his agreement with some other party; and hence the maker is "primarily liable, even though he has signed for the accommodation of the indorser. See note to section 120, and cases there cited.

§ 193. Reasonable time—what constitutes.-In determining what is a "reasonable time" or an or an "unreasonable time," regard is to be had to the nature of the instrument, the usage of trade or business (if any) with respect to such instruments, and the facts of the particular case.

Whether question one of law or fact.-Where the facts are doubtful or disputed, the question of reasonable time is a mixed question of law and fact. But when the facts are clear and undisputed, the question is one of law for the court. Commercial Nat. Bank v. Zimmerman, 185 N. Y. 310; German Am. Bank v. Mills, 99 App. Div. (N. Y.) 312; Prescott Bank v. Coverly, 7 Gray, 217; Gilmore v. Wilbur, 12 Pick. 124; Holbrook v. Burt, 22 Pick. 555; Northwestern Coal Co. v. Bowman, 69 Iowa, 153; Aymar v. Beers, 7 Cow. 705; Tomlinson Carriage Co. v. Kinsella, 31 Conn. 273. See note to section 131.

§ 194. When time for doing act falls on Sunday or holiday.—Where the day, or the last day, for doing any act herein required or permitted to be done falls. on Sunday or on a holiday, the act may be done on the next succeeding secular or business day.

Variant readings.-In North Carolina this section is omitted.

Origin of section. This section was adapted from sections 26 and 27 of the New York Statutory Construction Law.

§ 195. Instruments made prior to act.-The provisions of this act do not apply to negotiable instruments made and delivered prior to the passage hereof.

Variant readings.-This section is omitted in Arizona and Florida. In Minnesota the following is added at the end of the section: "Nor shall they be construed as modifying, repealing or superseding any of the terms and provisions of section 2747, Revised Laws, 1905." In South Dakota the section reads: "Nothing in this Act contained shall be construed as in any manner repealing chapters 128, 140 and 141 of the Laws of 1905, and chapter 74 of the Laws of 1907."

Time when statute took effect.-As to when the act took effect in the different states, see Walker v. Dunham, 135 Mo. App. 396; Gate City Bank v. Schmidt, 168 Mo. App. 153; First Nat. Bank v. Bertoli, 88 Vt. 421; Dorsey v. Wellman, 85 Neb. 262; Dotson v. Owsley, 141 Ky. 452; Fassler v. Streit, 92 Neb. 786.

Paper made before, and indorsed after, act took effect.-Where paper was made and delivered prior to the adoption of the act, the liability of indorsers thereon is to be determined by the law as it existed then, though such indorsements were made after the date on which the act was to go into effect. Mackintosh v. Gibbs, 81 N. J. L. 37; Gate City Nat. Bank v. Schmidt, 168 Mo. App. 153.

§ 196. Cases not provided for in act.-In any case not provided for in this act the rules of the law merchant shall govern.

Variant readings.-In many of the states the section reads: "The rules of law and equity, including the law merchant." But just what this means might be difficult to determine. Of course, if the statute does not apply, the rules of law and equity must govern. But what rules? The Law Merchant is a distinct branch of law, and under it certain rules have grown up; and, hence, when we speak of the rules of the law merchant, we convey the idea of a definite set of rules. But when we speak of "the rules of law and equity including the law merchant," we mean-if we mean anything at all—the whole body of the law, and the vagueness of the statement obscures and confuses. For a lucid exposition of this subject, see the report of the Committee on Uniformity of Judicial Decisions in Cases arising under Uniform Laws. Proceedings Twenty-Fourth Conference (1914), p. 244.

Prior statutes.-It is to be observed that the rules governing in such cases are not those which existed by virtue of a statute. In most of the states all prior statutes upon the subject of bills and notes are repealed; and where a case arises which is not provided for in the Negotiable Instruments Law, it is not to be determined by resort to any of the former statutes, but by reference to the rules of the law merchant. In a few of the statés, however, certain statutes are expressly excepted from the effect of the repealing clause. These are indicated in the notes.