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Pinson, 108 S. W. 852, 33 K. L. R. 36; Campbell v. Fourth Nat. Bank, 137 Ky 555, 126 S. W. 114; Asbury v. Taube, 151 Ky. 142, 151 S. W. 372; Muir v. Edelen, 156 Ky. 212, 160 S. W. 1048; Harrison v. Ford, 158 Ky. 467, 165 S. W. 663.
LIABILITIES OF PARTIES.
Section 60. Liability of maker.
61. Liability of drawer.
erwise a party.
livery or qualified indorsement. 66. Liability of general indorser. 67. Liability of indorser on paper nego
tiable by delivery. 68. Liability of indorsers as between
themselves. 69. Liability of Agent, etc.; without in
$ 60. Liability of Maker. "The maker of a negotiable instrument by making it engages that he will pay it according to its tenor, and admits the existence of the payee and his then capacity to indorse (Sec. 184).”
Maker is estopped to deny the existence and
capacity of payee. Depew v. Bank of Limestone, 1 J. J. Mon. 378; Jones v. Bank of Tennessee, 8 B. Mon. 122; Johnson v. Mason, 106 Ky. 838, 51 S. W. 620, 21 K. L. R. 493.
§ 61. Liability of Drawer.-"The drawer (Secs. 126, 185) by drawing the instrument admits the existence of the payee and his then capacity to indorse, and engages that on due presentment the instrument will be accepted or paid, or both, according to its tenor, and that if it be dishonored, and the necessary proceedings on dishonor be duly taken, he will pay the amount thereof to the holder, or to any subsequent indorser who may be compelled to pay it. But the drawer may insert in the instrument an express stipulation negativing or limiting his own liability to the holder.”
See Pilcher v. The Banks, 8 B. Mon. 550.
Where both the drawer and indorser signed for the accommodation of the acceptor the rights and liabilities as between them will be adjudged according to facts of the case. Edelen v. White, 6 Bush 408.
§ 62. Liability of Acceptor.—“The acceptor by accepting (Secs. 132, 187) the instrument engages that he will pay it according
to the tenor of his acceptance (Sec. 124), and admits :
(1) “The existence of the drawer, the genuineness of his signature, and his capacity and authority to draw the instrument; and
(2) “The existence of the payee and his then capacity to indorse.”
Since the acceptor "admits the existence of the drawer and the genuineness of his signature,” ordinarily a bank, which pays a forged check of its depositor, cannot recover back the money (Deposit Bank of Georgetown v. Fayette National Bank, 90 Ky. 10, 13 S. W. 339, 11 K. L. R. 803); yet, since it does not admit the same of the indorsers, and since every indorser “warrants he has a good title to it," it was held that where Bank A paid a check drawn on bank B, on which both the names of the drawer and indorser were forged and without identification, which check was indorsed by Bank A and paid by bank B, that Bank B could recover of bank A the money. (Farmers' Nat. Bank v. Farmers' & Traders' Bank, 159 Ky. 141, 166 S. W. 986).
The acceptor is the principal debtor and not a surety, although he accepted for accommodation only. Anderson v. Anderson, 4 Dana 352; McCandless v. Hadden, 9 B. Mon. 186; Trimble v.
City Nat Bank, 15 S. W. 853, 12 K. L. R. 909.
The presumption is that the acceptor is indebted to the drawer or has funds of the drawer with which to meet the bill. Ray, etc., v. Bank of Kentucky, 3 B. Mon. 510; Byrne, etc., v. Schwing, 6 B. Mon. 203.
Yet this presumption is not conclusive and the obligation growing out of the bill, as between the drawer and acceptor, will depend on the facts of the case and the nature of the contract between them. Turner v. Browder, 5 Bush 216; Bailey v. Wood, 114 Ky. 27, 69 S. W. 1103, 24 K. L. R. 801.
63. Who Deemed An Indorser.-"A person placing his signature upon an instrument otherwise than as maker, drawer or acceptor is deemed to be an indorser, unless he clearly indicates by appropriate words his intention to be bound in some other capacity.”
As to indorsement of non-negotiable notes by one not a party to the paper, see the cases of Needhams v. Page, 3 B. Mon. 465 and Kellogg v. Dunn, 2 Met. 215, decided before the passage of Section 481, Kentucky Statutes; and the case of Williams v. Obst, 12 Bush 266 and Kracht's Admr. v. Obst, 14 Bush 34, decided afterward.
In Smith v. Lockridge, 8 Bush 423, it was held that B, who was not a drawee, but who attempted