paid. And it is further agreed that the title to the (reaper), for which this note is given, shall remain in said (the seller) until this note is fully paid. (Witness.) Value received (Signature.) On the back of this note is sometimes the following statement:— It is not incumbered by mortgage or otherwise, except the amount of and the title is perfect in me in all respects. I have stock and personal property to the amount of $ over and above my debts and liabilities. The above property being worth, over and above my debts, liabilities, and exemptions, at least FIVE TIMES the amount of the within note. The question has arisen whether such a note is negotiable. Suppose the seller of the chattel, who is payee of the note, sells the note and indorses it for value to an innocent indorsee, and then the buyer finds that he was cheated, and puts in this defence of fraud when he is sued on the note by the indorser. He can make this defence if this note be not negotiable; but he cannot make it if it be negotiable. I should say it was negotiable; and that the only effect of the condition or provision annexed to the promise was, that it operated much as a mortgage of the thing by the buyer back to the seller, to secure the payment. 2. The Payee must be designated. The payee should be distinctly named, unless the bill or note be made payable to bearer. If it can be gathered from the instrument, by a reasonable or necessary construction, who is the payee, that is enough. The note may be made payable to the promisor or his order; that is, a man may say, I promise to pay to my own order; and such note is nothing until the promisor not only signs it, but indorses it. A note indorsed in blank is always transferable by delivery, just as if it were made payable to bearer; because any holder may write over the indorsement an order to pay to himself. Indorsements are either indorsements in blank, by which is meant the name of the indorser and nothing more, or indorsements in full, which are so called when over the name of the indorser is written, "pay to A B." (By A B we mean the name of the person to whom the note or bill is indorsed.) These two kinds of indorsements are fully explained subsequently in this chapter. A note to the order of the promisor himself, and indorsed by him in blank, is therefore much the same thing as a note to bearer. But it is quite commonly used in our mercantile cities, because the holder can always pass it away without indorsing if he chooses, or can put his name on it as second indorser if he likes to. If the indorsee be named, and the note get into the possession of a wrong person of the same name, this person neither has nor can give a title to it. If the name be spelt wrong, evidence of intention is receivable. If a father and son have the same name, and either of them has possession of the note and indorses it, this would be evidence of his rightful ownership. If neither payable to bearer, nor to the maker's or drawer's order, nor to any other person, it would be an incomplete and invalid instrument. A note to a fictitious payee, with the same name indorsed by the maker, would undoubtedly be held to be the maker's own note, either payable to bearer, or to himself or order by another name, and so indorsed. If a blank be left in a bill for the payee's name, a bona fide (or honest) holder may fill it with his own, the issuing of the bill in blank being an authority to a bona fide holder to insert the name. And if the name of the payee be not the name of a person, as if it be the name of a ship, the instrument is payable to bearer. A note payable to different persons in the alternative, that is, to one or the other of them,—is not a good promissory note. A bill or note "to the order of" any person is the same as if to him "or his order," and may be sued by him without indorsement. 3. Of Ambiguous and Irregular Instruments. The law in relation to protest and damages makes it sometimes important to distinguish between a promissory note and a bill of exchange, because by law a foreign bill of exchange, if unpaid, should be protested, but not a promissory note; but it is a common practice to protest promissory notes when they are not paid. The rule in general is, that, if an instrument be so ambiguous in its terms that it cannot be certainly pronounced to be one of these to the exclusion of the other, the holder may elect and treat it as either. As if written, "Value received, in three months from date, pay the order of H. L. $500. (Signed) A. B.;" and an address or memorandum at the bottom, "At Messrs. E. F. & Co." 4. Of Bank-notes. Bank-notes or bank-bills are promissory notes of a bank, payable to bearer; and, like all notes to bearer, the property in them passes by delivery. They are intended to be used as money; and while a finder, or one who steals them, has no title himself against the owner, still, if he passes them away to a bona - fide holder, that is, a holder for value without notice or knowledge, — such owner holds them against the original owner. And if the bank pays them in good faith on regular presentment, the owner has no claim. They pass by a will bequeathing money. They are a good tender, unless objected to at the time because not money. Forged bills, given in payment, are a mere nullity. Bills of a bank which has failed, but of which the failure is unknown to both parties, are now generally put on the footing of forged or void bills. But if the receiver of them, by holding them, and by a delay of returning or giving them up, injures the payer and impairs his opportunity or means of indemnity, the receiver must then lose them. 5. Of Checks on Banks. A check on a bank is undoubtedly a bill of exchange; but usage and the nature of the case have introduced some important qualifications of the general law of bills in its application to checks. A check requires no acceptance, because a bank, after a customary or reasonable time has elapsed since deposit, and while still in possession of funds, is bound to pay the checks of the depositors. The drawer of a check is not a surety, as is the drawer of a bill, but a principal debtor, like the maker of a note. Nor can a drawer complain of any delay whatever in the presentment; for it is an absolute appropriation, as between the drawer and the holder, to the holder of so much money in the banker's hands; there it may lie at the holder's pleasure. But delay is at the holder's risk; for if the bank fails after he could have got his money on the check, the loss is his. If the bank, before he presents his check, pay out all the money of the drawer on other checks, he may then look to the drawer. If one who holds a check as payee, or otherwise, transfers it to another, he has a right to insist that the check shall be presented in the course of the banking hours of that day, or at farthest the next; that is, he is not responsible for the failure of the bank to pay, unless it is so presented, provided it would then have been paid. And if the party receiving the check live elsewhere than where the bank is, it seems that he should send it for collection the next day; and if to an agent, the agent should present it, at latest, in the course of the day after he receives it. If the check be drawn when the drawer neither has funds in the bank, nor has made any arrangement by which he has a right to draw the check, the drawing it is a fraud, and the holder may bring his action at once against the drawer, without presentment of the check at the bank, or notice of non-pay ment. Checks are seldom accepted. But they are often marked by the bank as good; and this binds the bank as an acceptor. Checks are usually payable to bearer, but may be and often are drawn payable to a payee or his order; for this guards against loss or theft, because the check will not be paid unless the payee writes his name on it; and it gives to the drawer, when the check is paid and returned by the bank to him, what is the same as the receipt of the payee. Generally, a check is not payment until it is cashed; then it is payment if the money was paid to the creditor, or the check had passed through his hands. A bank cannot maintain a claim for money lent and advanced, merely by showing the defendant's check paid by them; because the general presumption is, that the bank paid the check because it was drawn by a depositor against funds. While the death of a drawer countermands his check, if the bank pay it before notice of the death reaches them, they are discharged. This would seem to be almost a necessary inference from the general purpose of banks of deposit, and the use which merchants make of them. If a bank pay a forged check, it is so far its own loss, that the bank cannot charge the money to the depositor whose name was forged. But the bank could recover the money back from one who presented a forged check, and was paid, provided the payee, if innocent, loses no opportunity of obtaining indemnity in the mean time; that is, provided the payee loses nothing by the bank's paying the check; and provided he can be put in as good a position as if the bank had refused to pay it. But if somebody must lose, the bank should, because it is the duty of the bank to know the writing of its own depositors. If it pay a check of which the amount has been falsely and fraudulently increased, it can charge the drawer only with the original amount. But if the drawer himself causes or facilitates the forgery, as by so carelessly writing it or leaving it in such hands that the forgery or alteration is easy, so that it may be called his fault, and the bank is innocent, then the loss falls on the drawer. If many persons, not partners, join in a deposit, they must join in a check; but if one or more abscond, a court of equity will permit the remainder to draw the money. 6. Of Accommodation Paper. - An accommodation bill or note is one for which the acceptor or maker has received no consideration, but has lent his name and credit to accommodate the drawer, payee, or holder. Of course he is bound to all other parties precisely as if there were a good consideration; for, otherwise, it would not be an effectual loan of credit. But he is not bound to the party whom he thus accommodates; on the contrary, that party is bound to take up the paper, or to provide the accommodation acceptor or maker, or indorser, with funds for doing it, or to indemnify him for taking it up. And if, before the bill or note is due, the party accommodated provides the party lending his credit with the necessary funds, he cannot recall them; and if he becomes bankrupt, they remain the property of the accommodation acceptor, or maker, who, if sued on the bill or note, can charge the party accommodated with the expense of defending the suit, even if the defence were unsuccessful, if he had any reasonable ground of defence, because the defence was for the benefit of the party accommodated; inasmuch as he must repay the accommodating party if he pays the bill or note. 7. Of Foreign and Inland Bills. Bills of exchange may be foreign bills, or inland bills. Foreign bills are those which are drawn or payable in a foreign country; and for this purpose, each of our States is foreign to the others. Inland bills are drawn and payable at home. Every bill is, on its face, an inland bill, unless it purports to be a foreign bill. If foreign on its face, evidence is admissible to show that it was drawn and payable at home. If a bill be drawn and accepted here, but afterwards actually signed by the drawer abroad, it is a foreign bill. If a foreign bill be not accepted, or be not paid at maturity, it should at once be protested by a notary public. Inland bills are generally, and promissory notes frequently, protested; but this is not generally required by the law. The holder of a foreign bill, after protest for non-payment, or for nonacceptance, may sue the drawer and indorser, and recover the face of the bill, and, in addition thereto, his damages, which damages, on protest, are generally adjusted in this country by various statutes, which give greater damages as the distance is greater; and an established usage would supply the place of statutes if they were wanting. 8. Of the Law of Place. - The different States of the Union are, as to questions arising under mercantile law, foreign countries as to each other. Important questions sometimes arise in the case of foreign bills (as well as in some other cases, for which see the chapter on the Law of Place), dependent upon what is called the law of place, the Latin phrase for which, lex loci, is often used. In general, every contract is to be governed by the law of the place where it is made. Thus, if a bill is drawn in France, and there indorsed in a way which is sufficient here, but insufficient there, the indorsement would here be held void. But if a contract entered into in one place is to be performed in another, as in the case of a note dated or a bill drawn in one State, but payable in another, |